William B. Loftin v. Joseph F. Nally and another, 24 Tex. 565

Wheeler, C. J. We are of opinion that there was error in excluding the record from the District Court of Washington county. It was admissible, as conducing to show want of title in the defendant, to the land conveyed to him in exchange for that in question; or, at least, to show that the defendant may have had reason to believe that his title was worthless. It was calculated to reflect some light on the transaction which originated this controversy, and might be regarded by the jury as, in some degree, explanatory of the conduct and representations of the defendant, which are the subject of complaint.

It might have had some influence with the jury, in deciding upon the conclusion which they should deduce from the testimony of the witness, Baily. It would be difficult to affirm that it was not entitled to any legitimate influence, in connexion with the other evidence in the case, upon the question of false and fraudulent representations submitted for the decision of the jury. The weight to which it was entitled, was for them to consider.

It is-not for us to say, what influence it ought to have upon their-minds ; but we think it was proper to be submitted for their consideration, in connexion with the other evidence in the case. The objection to the deposition of Baily was properly overruled. If interested, his interest was adverse to the party calling him, and, therefore, not a disqualifying interest. We think the court rightly overruled the objection to the competency of the witness, Nally.

The validity of the title he had made, was not in question ; nor does it appear that he had any interest in the event of the suit, of a character to render him incompetent. The proof of the several deeds, produced in evidence, was not made in conformity to the statute. But the plaintiff did not propose to pursue the statutory mode of making the proof, but adopted the common law mode. The objections seem to have been, not that the execution of the déeds was not sufficiently proved, nor that the copies produced were not proved to be copies, but only that the statutory mode of making the proof had not been observed.

The plaintiff ohad his election to adopt either mode of proof. The admissibility of the evidence, considered in reference to the objections, however, is not free from doubt; and as all ground of objection may be removed upon another trial, it is not necessary to decide whether the evidence was rightly admitted. The judgment is reversed and the cause remanded. Reversed and remanded.