Dennis v. Chapman

19 Ala. 29 | Ala. | 1851

DARGAN, C. J.

This was an action of covenant brought against the securities of a constable under the following circum-. stances. The constable sold a slave belonging to the plaintiff,' to satisfy executions he had against him; the slave brought more than enough to satisfy the debts, and the plaintiff demanded the surplus remaining in his hands, but the constable .failed to pay.it over; several objections were taken to the ruling of the court, which we will notice in the order they are presented by -the assessment of errors.

1. The demurrer to the declaration was correctly overruled; the declaration is framed with care, and is entirely good.

2. The declarations and admissions of a party against his interest are admissible as evidence against him; but the witness who deposes to such declaration or admissions should give the precise language of the party, if he can; if he cannot, he should be able to state the substance of them. If he cannot undertake to testify to the language, nor to the substance of the admissions, he ought not to be allowed to depose. Tested by this rule, we do not think the court erred in rejecting the evidence of Hunter, He did not propose to state the language, nor the substance of the admission, but merely his understanding of the' admissions. If he had stated the admissions made, either in the language of the plaintiff, or the substance of them, the jury might have under-, stood them differently from the witness.

3. But it is very clear that the court erred in permitting the admissions of the constable, made after he went out of office, and when he was not in the performance of any duty growing out of his office, and connected with this transaction, to go to the jury as evidence to charge his securities. To make the admissions of an officer evidence against his securities, they must be made in the performance of some official act or duty connected with the transaction out of which the breach of the condition of the bond is alleged to have arisen, and if they are made at a time when he is performing no official act or duty required of him, they are inadmissible to charge his securities.—Evans v. State Bank, 13 Ala. 787, and cases there cited. '

Another question has been raised on the brief of the counsel for the plaintiff in error, which is, that the constable having sold the slave after the return day of the execution, his securities are not liable for the money, notwithstanding the levy was made whilst the execution was in full force, and by virtue of which, he had the slave in possession. Although this question is not raised by the assignment of errors, we deem it proper in this case to say, that the case of the Governor use &c. v. Chandler’s securities, decided at the present termj shows that the defendants under these circumstances, would be liable for the money received by the constable upon the sale of the slave, and that the receipt of the money was within the official duties of the constable, and therefore covered by his bond.

For the error we have pointed out, the judgment must be reversed, and the cause remanded.