Bryan v. Coursey ex rel. De Coursey

Tuck, J., delivered the opinion of this court. Our attention is confined to the first exception, the others having been abandoned. From this it appears that when the cause was called for trial, the defendant’s counsel claimed a continuance in consequence of the absence of a material witness. The plaintiff’s attorney waived a formal affidavit, and offered to receive instead, the defendant’s oral statement on oath, of what he expected his witness to prove, and proceeded, with the permission of the court, and after objection made by the defendant’s counsel, to propound interrogatories to the defendant as to what he expected to prove by the absent witness.

The parties then went to trial, and after evidence by the plaintiff of his case, the defendant’s counsel called a member of the bar, who had been present when the defendant made his statement, and “offered to prove the declarations of the defendant, made while under the foregoing examination, as to the reasons why the items set up in bar of the plaintiff’s claim were not stated in the account thereof, and all that the defendant had stated under said examination, in reply to the ⁶⁶ questions asked him by the plaintiff’s counsel. To this offer the plaintiff’s counsel objected, and the court sustained the objection.” This is all the information we have on the subject, except that the record contains certain facts which the defendant stated, while thus interrogated before the trial commenced, his witness would prove. The counsel for the appellee contends, that this evidence was inadmissible, because there was no agreement that the defendant’s statement should be received as proof at the trial. We are of opinion that if a party goes to trial upon an admissiomof whaka witness, if present, would prove, whether it be in the form of an affidavit or by statement of the party at bar, he is concluded as to the matter of the affidavit or statement, and cannot dispute its truth at the trial.

This is the effect of the act of 1787, ch. 9, secs. 2, 3, and does not depend on agreement of parties. If the testimony be material, and the court determines that the party has shown sufficient ground for a continuance, the other