#### Kowanachi vs. Askew as ad.

A party, who calls Ms adversary as a witness, under section 108, chap. 95, Digest, has up right to he sworn as a witness himself, unless his adversary refuse to testify.

Pleas to the merits are a waiver of the necessity of proving the representative character of the plaintiff, in a suit by an administrator.

Appeal from Qohmibia Owcuit Cowrt.

Hon. SheltoN WatsoN, Circuit Judge.

J. H. CakletoN, for appellant.

Mr. Justice Scott

delivered tbe opinion of tbe Court.

Tbis cause was tried, de novo, in tbe Circuit Court of Columbia county, on appeal from a justice of tbe peace. Tbe style of tbe suit, as well as all tbe proceedings in tbe Circuit Court, indicate distinctly, that tbe plaintiff below sought a recovery in bis representative character.

Tbe defendant below interposed tbe pleas of tbe general issue, payment and set-off, in short upon tbe record, by consent; on which, in like manner, issues were formed and submitted to tbe court sitting as a jury.

It appears by tbe bill of exceptions, taken to the overruling of a motion for a new trial, that after tbe. plaintiff below bad read tbe note sued on, which was payable to tbe order of E. ~W. Christian, and bad never been endorsed by him, and the defendant bad read tbe credits endorsed thereon, and bad introduced tbe plaintiff as a witness, to prove tbe further payment of fifteen dollars, “ who answered that be knew nothing about it,” tbe defendant then moved the court to be allowed to be sworn and testify himself in relation to tbe fifteen dollars, which tbe court, refused, and the defendant excepted.

*596No further evidence having been introduced by either party, the court found $25 83 debt, and $2 89 damages for the plaintiff, and rendered judgment against the defendant accordingly.

The defendant then moved for a new trial upon the grounds:

1st. That the court had erred in refusing his motion to be allowed to testify as to the $15.

2d. Because no evidence had been produced by the plaintiff to show either the death of his alleged intestate, E. W. Christian, or the grant of letters of administration upon his estate to the plaintiff.

The court overruled the motion, and the defendant excepted and appealed to this court.

Our statute does not adopt the alleged rule of the civil law, “that if a person alleges another to be his debtor, and refers it to the oath of the debtor, he, (the debtor,) will be obliged to swear he owes him nothing; and if he refuses, it will be taken as true, and the debtor condemned to pay the debt;” but enacts, that if a party required to testify under its provisions, (Digest, chap. 95, sec. 108, p. 656,) refuse to do so, “the justice shall allow the party offering the demand or set-off) to be sworn and examined in relation to the same matter.”

In this case, so far from the party required to testify having refused, he seems to have been sworn and interrogated.

The other ground was equally untenable, because the matter insisted upon, had been waived by the’ pleas to the merits interposed.

The judgment of the Circuit Court will be affirmed with ten per cent, damages.