Bondurant v. Bank of Alabama

| Ala. | Jan 15, 1845

COLLIER, C. J.

We are inclined to think that the interest of the sheriff was not balanced between the parties, so as to have made him a competent witness for the defendants, without a release. But that he might have been competent by a release, seems to be so firmly settled upon authority, as not to admit of serious doubt. Mr. Greenleaf, in his treatise on the Law of Evidence, (p. 472 to 4,) says, “The competency of a witness, disqualified, by interest, may always be restored by a proper release. If it consists in an interest vested in himself, he may divest himself of it by a release, or other proper cony.eyance. If it consists in his liability over, whether to the party calling him, or to another person, it may be released by the person to whom he is liable.” Again, “A surety may always render the principal a competent witness for himself, by a release. And it seems sufficient if only the costs are released.” Perryman v. Steggall and another, 5 Carr. & P. Rep. 197, supports the latter remark as to the extent to which the release should go; and the general principle, which maintains that a surety, when sued alone, may, by releasing the liability of his principal over, so as to destroy, or create an equilibrium of interest, render him competent as a witness, is sustained by many adjudications; see 1 Bailey’s Rep. 83; 12 Pick. Rep. 565; 2 Monr. Rep. 100 1; 7 Watt’s Rep. 292; 1 Rawle’s Rep. 196; 16 Mass. 181" court="Mass." date_filed="1819-11-15" href="https://app.midpage.ai/document/turner-v-austin-6404865?utm_source=webapp" opinion_id="6404865">16 Mass. Rep. 181; 2 Sergt. & R. Rep. 358; 20 Pick. Rep. 441. In the last case, the Court said, “If the plaintiff should fail to recover in this suit, a judgment against him for costs, would be no bar to his action against the witness, who would still be liable to an action for the amount of the note, in virtue of his several responsibility. The consequence is, that so far as the witness had any pecuniary interest, it was to charge the defendant, and thereby to exonerate himself from any further responsibility. But as he was called by the defendant, he was called to testify against his interest, and this does not affect his competency.”

The cases cited, all proceed upon the assumption, that a verdict and judgment in favor of the surety, will not avail the principal, as a bar to an action at the suit of the plaintiff. This being conceded, it is difficult to conceive of any objection, where all interest is removed by a release.' In the present casé, from the generality of the objection, and the ruling of the Court, the reasonable intendment is, that the release was unobjectionable in its terms. Whether it should extend so far as to annihilate all interest, or merely to balance it, (which latter result would, perhaps, be produced by renouncing the right to the costs of the action,) we need not consider.

So far as the question of interest is concerned, the sheriff was made competent by the release executed by his sureties. 'As to the particular facts which it was proposed to elicit from him, we think there is nothing in the record to show, that they were not such, as he might not with propriety narrate. It may be, that.it is not permissible, in a proceeding against a sheriff, or Ms sureties, to contradict the return made by the former on process, yet the Courts have an extensive control over their officers, and may permit amendments in their ministerial acts, so as to subserve right, and justice. So that, although a record cannot be contradicted by evidence adduced on the trial of an issue, yet, upon motion to the Court, at the instance of the offi-, cer making it, it may be so corrected, as to conform to the truth.

2. Some of the American cases maintain that the admissions of a principal, made at any time, are evidence against his surety. See 5 Binn. 195" court="Pa." date_filed="1812-09-09" href="https://app.midpage.ai/document/meade-v-mdowell-6313650?utm_source=webapp" opinion_id="6313650">5 Binn. Rep. 195; 10 Johns. Rep. 38; 2 Wash. C. C; Rep. 473; 3 Yeates’Rep. 128; 2 Bailey’s Rep. 362, 380, et post; 2 Phil. Ev. C. & Id’s. Notes, 671 to 3. But the greater number of the adjudications, perhaps, restrict the rule to cases where the declarations of the principal are acts, or parts of acts, in analogy to the admissions of agents affecting their constituents. [4 Ala. 607" court="Ala." date_filed="1843-01-15" href="https://app.midpage.ai/document/townsend-v-everett-6501868?utm_source=webapp" opinion_id="6501868">4 Ala. Rep. 607.] On this principle, the entries of a teller, by which he daily stated his account, as such, in a book, kept in the Bank for that purpose, were received, to show his. default in a suit against his surety. [1 Rep. Const. Ct. 404, 409.] So a jailer’s receipt for a prisoner, was held receivable . against his surety. [4 Litt. 148" court="Ky. Ct. App." date_filed="1823-10-15" href="https://app.midpage.ai/document/bernard-v-commonwealth-for-lewis-7383075?utm_source=webapp" opinion_id="7383075">4 Litt. Rep. 148, 151.] And the return, of a sheriff, that a Ji.fa. is satisfied, will conclude the sureties, in an action on the bond. [1 Dev. Rep, 153; 6 Ala. 248" court="Ala." date_filed="1844-01-15" href="https://app.midpage.ai/document/price-v-cloud-6502162?utm_source=webapp" opinion_id="6502162">6 Ala. Rep. 248.] The part payment by the principal of a promissory note, has been held to take it out of the statute of limitations, or to repel the presumptive bar arising from delay,in respect to the surety, who is jointly bound to pay it. [2 Pick. Rep. 581.] But the mere admission of the principal, after the statute has run, will not be received as evidence against the surety, to prevent its operation. [5 Binn. 195" court="Pa." date_filed="1812-09-09" href="https://app.midpage.ai/document/meade-v-mdowell-6313650?utm_source=webapp" opinion_id="6313650">5 Binn. Rep. 195.] So it has been held, that the acknowledgment of a sheriff, made while he was officially acting in relation to the receipt of money, forms a part of the res gestee ; but if made at a subsequent period, they are inadmissible. [2 Blackf. 289" court="Ind." date_filed="1829-11-12" href="https://app.midpage.ai/document/shelby-v-governor-ex-rel-newman-7029664?utm_source=webapp" opinion_id="7029664">2 Blackf. Rep. 289; Greenl. on Ev. 219, 223.]

Here, it must be observed, that Montague in his negotiation-with the sheriff, was acting as the agent of Vaughan, and the-object of the sheriff was to obtain satisfaction of the execution, and the purpose of the agent, to obtain as long time as possible for its payment. The time was agreed on, and the payment accordingly made. Under these circumstances, the statements made by the sheriff, must be regarded as part of the thing done, viz: the payment of the money. They were made in view of it, in reference to it, and for the avowed purpose of leading to such a result. In order to make the declaration a part of the act, it is not necessary that they should be simultaneous. True, if the act is never done, the declaration may pass for nothing, but when the performance takes place, it draws to itself the previous admissions and statements, of the parties, which led to it; for they are j ust as much parts of the act, as if made at the same time.

3. It is said a witness may refresh, and assist, his memory, by the use of a memorandum, written instrument, or entry in a book; and that it is not necessary that the writing should have been made by the witness himself, or that it should be an original, if, after inspecting it, he can speak to the facts from his own recollection. So where the witness recollects that he saw the paper, while the facts were fresh in his memory, and remembers that he then knew, that the particulars therein mentioned, were correctly stated. And a writing, which is in itself inadmissible evidence, may be referred to, by the witness, for the purpose of refreshing his memory. But where the . witness neither recollects the fact, nor remembers to have recognized the written statement, as true, and the writing was not made by him, his testimony, so far as it is founded upon the written paper, is but hearsay; and a witness can no more be permitted to give evidence of his inference from what a third person has written, than from what a third person has said. [Greenl. on Ev. 483; 2 Nott & McC. Rep. 334; Minor’s Rep. 397; 3 T. Rep. 752; 11 Wend. Rep. 485; 2 Phil. Ev. C. & H’s. Notes, 754 to 759 ; 3 Id. 1238-9; 3 Porter’s Rep. 430.] The copy of the receipt attached to the written statement, by Montague, is not, certainly, such evidence as should be permitted to go to the jury, yet it was allowable for the witness to inspect it, and, if he could, then testify, to the facts it discloses,from his own recollection; but if he neither recollected the facts, nor remembers to have recognized the writing as true, while the facts were fresh in his memory, then the paper is nothing more than hearsay, and is incompetent evidence. But the bill of exceptions does not give us explicit information, whether the witness related the facts from memory, or whether the copy of the receipt was used as an instrument of evidence, and it is not necessary that we should now stop to inquire. What we have said, will guide the action of the Circuit Court. Upon the first point considered, we have seen, there is error; the judgment is, consequently, reversed, and the cause remanded.