
    HAMBLIN vs. McLENDON & ROBINSON.
    
      > [-U?ll?Ai CASS FROM JUSTICE’S COURT — ACTION ON OVEN ACCOUNT,]
    L Examination of parties as witnesses. — In an appeal ease from a justice’s court, if tlie sum in controversy is between $20 and $50, tbe examina» ' tion of tbe parties as witnesses is governed by section 2779 of tbe - Code; but, if tbe sum in controversy, with tbe interest tbereon ’accruing ponding an appeal to tbe. supreme court, exceeds $50, tbe examination of tbe parties on-tbe second trialmust be .governed .by section 2313 of tbe Code.
    Appeal from the Circuit Court’ of Chambers.
    Tried before the -Hon. Robert Dougherty,
    ‘‘This action was’commenced in a justice’s court, on the 26th February, '1855* and was removed by the defendant into the- circuit--court, where, at the fall term, 1857, the plaintiffs' filé A a¡complaint, claiming the following--sums, alleged to be due by open account for goods sold and de~ livered, to-wit: '$13 05, due on the 25th December, 1851 %, $18- 62, due on the 25th December, 1852 ; and $18 38, due on the 25th December, 1853 ; together with interest on these several sums from the time when they respectively fell due. A.trial was had in the circuit-court,at the March term, 1858, which resulted in a verdict and judgment for the defendant;.but the judgment was reversed by this court,, at.-its January term, 1859, and the cause remanded,. See the report of the case in 34 Ala. 86. On 9, second trial in the circuit court, at its March term, 1860, as the bill of., exceptions imthe present-record, shows, the following proceedings were had
    “ The plaintifis offered to prove, by. their own oaths, the sale and delivery of the goods mentioned and set forth in, the accounts attached, to the- defendant; -that the same, as made out and stated, as to amounts and dates, are correct;, and that the goods were sold by them to the defendant, for the amounts and prices respectively set forth, at the times mentioned in said., accounts; .which statement had been, committed to writing, and sworn to by one of the plaintiffs in open court. The defendant declined to swear that this-,, statement was untruewhereupon, the plaintiff McLendon offered himself as a witness, and the court permitted him-, to testify,, against thé defendant’s objection; and the defendant excepted. Said plaintiff then testified to the facts. proposed, and, in addition . thereto, that the account was-due and unpaid,...and that the credits thereon are right as to amounts .and dates-;.;,said credits, being $39';65, dated March, 10th, 1855. The defendant objected to the plaintiff’s tes-. tifying to each and-.every. fact out of, what he proposed in writing to prove, but did not propose to swear that any of, said facts was untrue in any respect;. and excepted to the . overruling of his several objections,
    “The plaintiffs having here closed,.thp defendant then, proposed in writing to prove, by his own oath, the following facts, to-wit: the payment of the entire accounts ; that he, sent. $50 to plaintiffs, by one Emory, tq pay said-;accounts, and that it is not ■ credited on said accounts-. Thereupon, the plaintiffs swore in writing, in open court, that the evidence proposed to be given by ■ the defendant was untrue ; that said defendant never did make payment - of the entire account sued on y that the plaintiff McLendon _ did receive $50 from the defendant, by said'" Emory., and'; gave him credit therefor on his, mercantile account with • said McLendon individually ; .and they most'.positively denied that any. such payment ■■was made on-their accounts . here sued on, .and denied the truth of the testimony so pro-, posed to be given.by the defendant. The court thereupon-, refused to allow the defendant to testify to the facts above-proposed to be proved by him,, and the defendant .excepted.' The defendant .then introduced one Deloach .as a witness, „ who testified, that he was present at an interview, in 1855, between the defendant and the plaintiff Eobinson, when they • were settling that the defendant then .paid said Lobin-són $40, and remarkéd that there was some small amount (ten or fifteen cents) coming to him in change, and that sakL Eobinson did not deny this. The defendant introduced a note signed by himself, and payable to plaintiffs, pf later date than the maturity of the accounts suecbon. The accounts . proved were, $42 50, due on the 25th December, 1851,. credited March, 1855, with $39 65 ; $18 62, due on the 25th December, 1852, and $13 30, due on.the 25th Decern-,, ber, 1853. The plaintiff McLendon then testified on oath, against the defendant’s objection, that the note above men--tioned was given for the transfer of a land-warrant, andón no other consideration. The defendant objected to the • plaintiff’s being allowed to testify to the facts above stated,. but did not offer to swear that ¡said facts were untrue; and -, his objections being overruled, he excepted.”
    The several rulings of the court to which, as above seated, exceptions were reserved, are. now assigned as error,.,
    C. D. HudsoN, for appellant..,.
    Rrock & Baenes, contra.
   STONE, J.

When this case was before us at a former term, (34 Ala. 86,) it appeared from the bill of exceptions, - that the competency of the parties as witnesses was determinable by section 2779 of the Code. We then laid down a’rule to be observed in appeal cases, when the amount in controversy is ever twenty, and not exceeding fifty dollars. The -circuit court followed that rule on the second trial; and from its various rulings this appeal is prosecuted. The amount sued for did not originally exceed fifty dollars ; but when the last trial took place,-'March term, 1860, interest had swelled the amount to about sixty dollars. TJn der these circumstances, this case was taken out of' the operation of the rule laid down in 34 Ala. Rep. 86, and fit is now controlled by the principles declared in Jordan v. Owen, 27 Ala. 153. This being the case, it is manifest that the circuit court erred in two' -particulars; first, in allowing the plaintifis-to testify to -facts other than those specified in the written offer; and, second, in allowing them to prove faets that did not pertain to the establishment of the plaintiff^ demand. — West v. Brunn, 35 Ala. 265 5 English v. Wilson, 34 Ala. 201; Flash v. Ferri, 34 Ala. 186; Waring v. Henry, 30 Ala. 721; Pryor v. Harris, 30 Ala. 118.

The other points we' need not now consider, as they will -root probably arise again in-the form they now assume.

.. Reversed and remanded.  