West v. Brunn

35 Ala. 263

• Court: Supreme Court of Alabama
• Decided: June 15, 1859
• Status: Published

Opinion

A. J. WALKER, C. J.

It is very clear that the judgment in this case must he affirmed. When a plaintiff under the statute offers to prove his account, the defendant is competent for the single purpose of denying upon oath the truth of the facts proposed to be sworn to by the plaintiff. — Code, § 2313. lie is not competent to bring forward, new facts, which will avoid the force of his adversary’s facts. The defendant, by a cross-examination, elicited certain facts from the plaintiff, and then upon oath denied the facts so called out; and the courhexcluded his denial of those facts. This was right. The statute confers upon him the privilege only of denying the facts which the plaintiff proposes, and not of denying those which he may call out by an examination of the plaintiff.

If it be said that the plaintiff did not propose to prove all the facts necessary to establish the correctness of his account, the reply is, that that was a ground to reject him as a witness entirely, and not a reason for allowing the defendant to make himself a witness for the contradiction of facts called out by him.

Judgment affirmed.