John B. Lynch v. Martha A. Benton and Husband, 3 Rob. 105

Martin, J. The plaintiff and appellant has placed this case before us, on a bill of exceptions to the opinion of the judge a quo, refusing to admit Selby as a witness. This bill is literally like the one taken by the plaintiff in the case of Morgan v. Benton, &c., just decided. Our judgment must be consequently the same. The defendants’counsel, however, has drawn our attention'to the absence of any evidence of the plaintiff being a creditor of the estate of the former husband of Martha A. Benton, who is sued on a charge of having concealed part of the property of the estate.

As parties are always allowed to exercise their own judgment in regard to the order of introducing their proofs, the defendants cannot avail themselves of the absence of evidence of the interest of the plaintiff in the estate. It is, therefore, ordered, that the judgment be reversed; and the case is remanded, with directions to the District Court not to reject the testimony of Selby ; the defendants and appellees paying the costs of the appeal.