Webb v. Lasater

Citations

• 5 Scam. 543

Syllabus

<p>Error to Hamilton.</p> <p>1. Witness — adverse parly, competency. Where a party to a suit pending before a justice of the peace, or by appeal in the circuit court, makes the necessary preliminary oath to authorize him to call upon the adveise party to testify, and either the adverse party, or the party making such oath is sworn, he does not become a general witness, but his testimony will be confined “to the demand, discount, or set off” in reference to which he has been sworn. If the party has paid or discharged the demand, in reference to which he was sworn and interrogated, he may stryte that fact, and such statement will be received as responsive to the question propounded to him. But if he only claims that he is not legally bound to pay such demand, by reason of his hav-inga subsisting account or set-off, against the patty calling onhim totestify.lre cannot proceed to establish such account or set-off by his own oath, by virtue of his having been sworn at the instance of the adverse party. lie may have other and disinterested evidence to support his account or set-off, and if so, should be required to produce it; but if he has not any other means of sustaining such account or set-off, except by resorting to his own, or his adversary’s oath, he must call upon his adversary to testify to such demand, before he can legally do so himself, (a) </p> <p>2. APP'-'AL from J. P. — -amendment of account. In case of appeal from A judgment of a ju Hce of thepeace to the circuit court, the defendant, ifhe appeared on the trial before the justice, cannot demand, asa matter of right, to file his account for the first time, or to file additional items thereof, in the circuit court; but in such cases the court may, in its discretion, for sufficient cause shown, permit such new or amended account tobe filed, (b) </p> <p>3. Same — If a defendant appears before the justice, at the time of the trial, and there exhibits no account, the plaintiff is justified in supposing that he i