12 Ala. 128 | Ala. | 1847
The rule of evidence relied on to justify the exclusion of the affidavit of Bonneau, to contradict his testimony, is the rule established by the judges in the Qneen’s case, and which has been frequently held to be the law, by this court — that a witness cannot be impeached by proof of counter declarations made by him, without first asking him whether he has made such declarations. The reason of the rule is, that it may be in his power to explain the apparent
The question is usually made, where witnesses are examined orally, in open court, and in our opinion, it must also apply to testimony taken by deposition, as the deposition is a mere substitute for the witness ; and we can perceive no reason, why a witness testifying in this mode, should not be entitled to the same protection, as if he had testified orally, in the presence of the court and jury. If then this paper existed, when the plaintiff whs notified, that the deposition of the witness was to be taken, and was informed by the interrogatories, of the testimony the witness was expected to give, it was his duty to give him an opportunity of explaining it, if he could, and reconciling it with the evidence he then gave; if there was any real, or apparent contradiction between them. But if the affidavit was made subsequent to the time when the interrogatories were propounded, from the necessity of the case, the plaintiff should have been permitted to offer it in evidence, as a declaration of the witness, contradicting his testimony. How the fact was, as to the time when this voluntary affidavit was made, we are not informed by the record ; we must therefore presume in favor of the judgment of the court, that it is correct, until the contrary was shown. It is the duty of the party alledging error, to show it affirmatively upon the record.
But in the charge to the jury the court erred. The jury might have believed from the testimony before them, that the partners, upon the dissolution of the partnership, transferred all the accounts and effects of the firm to Howell, and that afterwards the defendant promised him to pay the account. We cannot doubt that it is competent for a partnership, upon its dissolution, to convey to one of the firm all its effects, and nothing is more common or frequent in practice, as the burthen of paying the • debts frequently devolves on one of the firm. This arrangement would not, it is true, convey the legal title, so as to authorize such partner to sue
The last question made, upon the right of the plaintiff to poll the. jury, under the circumstances of this case, need not be decided, as there must be another trial.
Reversed and remanded.
