#### Drennen vs. Lindsey.

The statute authorizing either party to make a •witness of the opposite party in suits! hefore justices of the peace, ought to-be so construed as to allow such privilege om the trial de novo, in the Circuit Court on an appeal from the justice.

But if either party shall call his adversary as a witness, he will not be allowed to disprove or impeach his testimony by calling other witnesses.

A witness may be discredited by proving that he has testified' or stated differently im any materialrospeeton some former occasion, but the witness should first be enquired! of concerning such former statement.

Ajypeal from Lcmrmee Cwcmt Qowrt-

Hon. B. H. Neely, Circuit Judge,

EÁrROHXLD, for the appellant.

Byees & PattebsoN, contra,

Mr. Chief Justice "Watkins

delivered the opinion of the Court,

This suit was originally commenced before a justice of the peace, by Lindsey against Drennen, and on the trial in the justice’s court, the plaintiff, in order to make out his case, called upon the defendant to testify as a witness, and he was required to do so, *360under the statutory provision to that effect. Digest, title Justices of the Peace, sec. 108. Judgment being given against the defendant, he appealed, and on the trial de novo in the Circuit Court, the plaintiff, against the objection of the defendant, introduced, as a witness, the justice, before whom the case had been tried, and was allowed to prove by him what he understood the defendant to have admitted, when so testifying as a witness, ■at the call of the opposite party. And, thereupon, against the ■objection of the defendant, he was also required, at the instance of the plaintiff, to testify in the cause, on the trial de novo in the 'Circuit Court.

Although the statute, before referred to, enabling either party to make a witness of the adverse party to establish the demand sued for, or set off, and in a case of default when summoned, or refusal to testify, allowing the claimant of such demand or set off" to be sworn as a witness in his own behalf, to establish the same, is applicable in terms to suits before justices of the peace, and not to suits originating in the Circuit Court, the statute, in our opinion, ought to be so construed that, the privilege of calling the adverse party, attaching to suits commenced before justices of the peace respecting matters of contract with its consequences, adheres to and follows them into the Circuit Court, when removed there by appeal for trial de novo, upon the same cause of action and set off, if any, which was tried before the justice. All the reasons continue to exist why that class of cases, inconsiderable as to the amount involved in controversy, should be cheaply and expeditiously tried, with as little regard to forms of pleading, and in as summary manner as can be clone, consistently with the due administration of justice. That practice may be regarded, to some extent, as a substitute for the attainment of the same end by petition for discovery, and to obviate the expense and delay usually attending such a proceeding.

But it seems clear, in this particular case, that an error was committed oneway or the other against the appellant; and seeing that according to our view of the matter, the plaintiff, on the appeal *361•of tbe defendant, bad tbe same right, and to tbe same extent, of -calling bim as a witness on tbe trial in tbe Circuit Court, wbicb .be bad and availed bimself of, before tbe justice, it follows that tbe ¡plaintiff, still wishing to use tbe testimony of tbe defendant for any ptupose, was bound to .call bim as tbe original and best evidence, and mate an effort to produce bis attendance as a witness, instead of resorting to proof of bis statements-or admissions on tbe previous trial. It might Tie different, if the defendant in tbe mean time bad died, or for any other recognized disability'it bad 'become impossible for tbe plaintiff to have bim sworn on tbe second trial, and in such case no doubt bis testimony might be .reproduced, .like that of any other deceased, insane or absent witness, by proof according to established rules of what be testified on tbe former trial.

Moreover, tbe statute in question, making partial change in tbe law of evidence, has some peculiar features. Though it may be supposed tbe privilege would bo seldom refused, neither party has tbe absolute right to call tbe other as a witness, but may be allowed to do so in tbe discretion of tbe justice or court, if no • evidence be given to establish tbe demand or set-off in contro■versy, or if tbe evidence given be insufficient for that purpose. If tbe party called upon refuse to testify or make default, when summoned as a witness, tbe demand or-sot off is not admitted, 'but tbo party claiming it is permitted to establish it by bis own testimony; and if either party, called upon, does testify, tbe ■ statute is express, that, after bis examination, no further evidence shall be given in relation to such demand or set-off.” That is to say, tbe plaintiff or both plaintiff and defendant in turn, if a set-off be filed, may make a'witness of tbe other; but when be does ; so, it .is an election to rest bis side of tbe case upon tbe testimony of tbe adverse party, wbicb be is not allowed to disprove or impeach by calling other witnesses. Tbe perjury of such a witness may be a public offence, but for tbe purposes of tbo civil suit, be is not to be discredited by tbe party calling bim to testify. A witness may be discredited by proving that be has testified or *362stated differently, in any material respect, on some former occasion, bnt in order to do tbis, according to tbe rules of evidence, it is necessary that tbe witness should be enquired of concerning sucb former statement, and with sufficient certainty of specification to direct bis attention to them. Herej tbe defendant, when examined in tbe Circuit Court, was not interrogated about any statements made by bim on tbe first trial or on any previous occasion. Even if it bad been allowable, under tbe statute, for tbe plaintiff to discredit bis own witness, that has been tbe indirect result of tbe proceeding complained of, and regarding tbe defendant as a witness, and not as a party, be' would stand contradicted by proof of bis fomer statements, about which be was not interrogated, and bad no opportunity to explain or-justify.

It becomes unnecessary to go into a detailed statement of the-plaintiff's cause of action, and the evidence by wbicbit was sought to be established. It is sufficient to say, that, leaving out of view tbe objectionable testimony of tbe j ustice of tbe peace, as to bis understanding of tbe defendant’s admissions on tbe trial of tbe cause, before bim sitting as a jury, we are unable, after a careful examination of the- bill of exceptions, to find any satisfactory evidence conducing to show what interest, if any, tbe plaintiff bad in tbe subject matter of tbe alleged contract, or-that tbe defendant ever promised to pay bim tbe sum of money charged in tbe account, or that there was any consideration for such promise.

Tbe judgment will be reversed, and tbe cause remanded, with instruction to sustain tbe motion of tbe defendant for new trial.