8 Ala. 590 | Ala. | 1845
In Meeker’s assignees v. Williamson, 8 Martin’s R. 365, 370, it was adjudged, that if a party interested only on account of costs, deposit, or offer to deposit with the clerk, such sum as shall be directed by the Court, to cover the costs, in case he shall be decreed to pay any, his interest will not be thereby removed.
In some of the cases cited, the money was placed in the hands of the party offered as a witness. This was clearly sufficient to neutralize the interest which would otherwise have rendered him incompetent; for if the witness should be charged, he would have the means of payment provided, by which he might relieve himself, and if his liability should not be fixed, he could refund the money deposited with him. So that it would be unimportant to him, whether the one party or the other was successful in the cause. In the other cases a sum of money equal to the immediate, or consequential liability of the witnpss was deposited with the proper officer of the Court, and this it was held was equivalent in law to a release. If it is competent for a Court to make its clerk the keeper and custodian of money paid under such circumstances, and such payment will satisfy a judgment to be rendered in a suit afterwards to be brought, then it is difficult to conceive of any objection to thus making an interested witness competent to testify. We will briefly consider what are the duties and powers of a clerk in this respect.
The act of 1812 declares, that every clerk shall enter into bond conditioned, (among other things,) « for the due and faithfnl execution of his office,” [Clay’s Dig. 143, § 2;] and the bond provided by the act of 1819, is conditioned “for the faithful discharge of the duties of their offices.” [Id. § 3.] By the 5th section of the act of 1834, “ to provide a more summary mode of collecting money from clerks,” [Clay’s Dig. 147, § 24,] it is enacted, that in all cases where money shall be paid to the clerk of any Court, the party entitled to receive it, shall have the same remedy for its recovery, and the same damages for its detention, as are now provided and allowed by law, for money paid to clerks on execution, and it is hereby expressly made the duty of all clerks to re
In respect to the act of 1834, it has been decided, that- money paid to the clerk of a Court, in satisfaction of a judgment which has been rendered therein, will be a good payment, and will au-thorise the entry of satisfaction pro tanto. [Murray v. Charles, 5 Ala. Rep. 678.] So it has been decided that our statutes relating to the powers and duties of clerks, do not authorize a clerk to receive money in a cause pending and undetermined in his Court. But independent of statutory enactment, it was said, “ no case is remembered in which money can be lawfully paid to the clerk in vacation, or in any other manner than as the pfficer of the Court, in term time, and the receipt of which is always shown by some record of the Court, or some proceeding yet on paper, but progressing to a record.” Again, “ There are several stages in the proceedings of a case, in which the clerk of a Court is by law authorized to be the holder of the money which may be paid into Court. Thus on plea pleaded, when the cause of action is admitted to a partial extent, and denied as to the residue. So in the case of a tender — so also, when money is paid into Court in satisfaction of a judgment.” In these cases, the money is, in legal presumption, in Court, and the clerk holds it merely as a fiduciary. [Currie v. Thomas, 8 Porter’s Rep. 293.]
It is clear, that in virtue of our statutes the clerk oí a Court has no authority to receive money in discharge of an action which is pending, or probably to be brought in future ; and we think the common law does not confer the power in the case now before us. The deposit of a sum equal to the costs to which the witness would be liable to the defendant in the event of the plaintiff’s success, if made by the defendant himself, might operate as a release of the costs, and bar a recovery of them by him. But is it competent for an attorney at law, when retained for the purpose of defending a suit, to release from liability to his client a third person whom it is proposed to examine as a witness for him. An attorney has power to bind his client by many acts, being always liable to him for any abuse of his authority. [Alton v. Gilmanton, 2 New Hamp. Rep. 520; Mayer v. Foulkrod, 4
In Murray v. House, 11 John. Rep. 518, the plaintiff’s attorney, in order to make an interested witness competent for his client, released him, and he was permitted by the primary Court to give evidence ; but the appellate Court held, that a parol request to an attorney to represent a party to a suit, does not authorize him to l-elease the interest of a witness. So in Marshall v. Nagel, 1 Bailey’s Rep. 308, it was determined that an attorney cannot, without special authority, í-elease a witness who is liable over to his client, and thus render him competent to testify.
The cases which maintain the want of authority in an attor-ne3r to release a witness from liability to his client, are perhaps defensible upon the ground that the attorney’s appointment is by parol merely, and a release which is under seal, must be authorized by an instrument of equal dignity. But they might be rested upon higher ground, viz: the want of power generally. In retaining counsel for the prosecution or defence of a suit, the right to do many acts in respect to the cause, are embraced as ancillary, or incidental to the general authority conferred. It cannot be implied from the power to defend one suit, that the right to discharge other liabilities, which the client may enforce, are also vested in the attorney. It cannot vary the principle, whether these liabilities be for a large or small sum ; for costs, or for monies due under an express contract. In neither case does the nature of the employment embrace the authority in question as an incident.
Laying out of view the want, of a sealed authority, we have
In Black v. Richards, 2 Stewart & P. Rep. 338, the defendant set upas adefencethat he had made an agreement with the plaintiff, by which the latter was to ship the defendant’s cotton to the house of B. B. & R. ofNew Orleans, and that he had violated the agreement in consigning it to himself. To show that the cotton had been shipped according to contract, and to prove the amount of sales, the plaintiff offered an account of sales from the house of B. B. & R.; but it was objected to as “ secondary evidence,” and
This view disposes of all the questions raised upon the record, and the result is, .that the judgment must be affirmed.