Lobdell's Administrator v. N. B. Fowler, 33 Tex. 346

Walker, J. We are of opinion the court erred in excluding the depositions of Lewis S. Lobdell and John L. Lobdell. These witnesses were the sons of the original' defendant to this suit, and their depositions were taken during the life time of their father, John L. Lobdell, and at a time when they had no disqualifying interest in the event of the suit.

Their father died before the trial, and the court excluded their testimony on the ground of present interest- A question of some nicety arises upon this ruling of the court, growing out of our somewhat ambiguous statute. (Bee Paschal’s Digest, Art. 8733.) The statutes of Indiana and Massachusetts are both similar to our own, and the courts of those States have, nevertheless, uniformly held that depositions of witnesses, taken when the witness was competent to give evidence in the case, may be read in evidence on the trial of a cause, though the witness be rendered incompetent at the time of the trial.- (See also Greenleaf’s Evidence, vol. 1, $ 163, and authorities eited in the note 2, margin; Bell v.

Miller, 12 Texas; Burleson v. Burleson, 28 Texas.) This court has repeatedly held that executory contracts, made to be executed by payment in so-called Confederate money, cannot be enforced. And by the ordinance of 1866, a contract in writing which does not upon its face call for Confederate money, may be shown by aliunde evidence to have been entered into by the parties with the understanding that the consideration was Confederate money; and if such fact be established, the courts will not enforce the contract at the suit of either party.

Jt appearing to the satisfaction of the court that'the verdict of the jury and the judgment below ought to have been for the deiendant, and that there is error in the record, the judgment is reversed and the cause dismissed. Reversed and dismissed.