McClenny v. Floyd

| Tex. | Dec 15, 1848

Mr. Justice Wheeler,

after stating the facts, delivered the opinion of the court,

Mr. Justice Lipscomb not sitting.

The rejection of the witness, Floyd, is the principal ground embraced in the motion for a new trial, and presents the only question which seems to require our consideration. There is no complaint of any instruction given, or of any other ruling in the case.

The object for which this witness was introduced is not stated; nor, it has been ruled, were the defendants required to state it; but “we must intend that the witness' was a material one.” [5 Johns, ft. 256.] The general rule is, that no one can be admitted as a witness, who, at the time when he is called to testify, has a direct and certain interest in the event of the suit; whether the interest arises from a benefit or liability dependent on its determination. [1 Bailey, 362.] Where the verdict will necessarily charge one, or will discharge him from a fixed liability, he is incompetent to testify. [8 Shep. R. 450.] And in Louisiana, it is held that a surety on a bond given to release property from sequestration is not a competent witness; and that the case cannot be distinguished from that of bail. [7 Mart. N. S. 372-3.]

The competency of the witness, then, must depend upon the question, whether, at the time when he was called to testify, he was a surety, and in any event liable for the safe keeping and delivery of the property.

The suretyship, which is alleged to affect his competency, is upon a bond conditioned simply for the delivery of the negroes on or before a day certain, or on demand. The sheriff returns that the negroes were delivered accordingly, and the bond can-celled. Was not this an effectual discharge of the surety from his obligation ?

The nature aud extent of the undertaking of the surety are to be ascertained from.the plain and obvious import of his contract; or from the consequences attached to the contract by the provisions of positive law. The contract appears to have been strictly fulfilled, according to its express terms and clear import. The law in force at the time, annexed to this bond no other condition or obligation than that expressed upon its face; or, at most, it rendered the surety responsible that his principal should not send away the property out of the jurisdiction of the court; that he should not make an improper use of it; and that he should faithfully present it when. required. [La. Code Pr. art. 280.]

But it is insisted that this surety is responsible for the hire of the negroes during the time they were in the possession of the defendant, by reason of his obligation. This position, it is conceived, cannot be correct. To admit it would be to hold a surety liable beyond the express terms and clear import of his undertaking, and beyond the conditions and obligations annexed to it by the law. The hire or use of the property is not one of the enumerated subjects of his liability, and the enumeration must be held to include all. The surety, having literally fulfilled his undertaking, appears to have been wholly discharged and exonerated from liability in any event, and to have stood as indifferent between the parties as if he had never been a surety. This seems clear upon principle, and is supported by authority. In a comparatively recent case in South Carolina, it was held that where, in an action of trover, the defendants had given bond and security for the production of the negroes sued for, the negroeá might be delivered up to the sheriff, and the bond cancelled, in order to discharge the security and make him a competent witness. [3 Ilill (S. C.) Rep. 324.] The surrender and release were resisted in that case on various grounds, one of which was, that the bond was conditioned for the production of the property to satisfy the plaintiff’s judgment, and therefore implied a delivery after verdict; but the court overruled the objection, and held that the property might he surrendered as well before as after verdict.

“ It must be borne in mind,” it was said by Eaele, J., “ that the surety is not liable for the amount of the recovery in damages; he does not undertake that the defendant shall abide and perform the judgment of the court; nor that he shall answer to the action, and pay the condemnation money; but only for the production of the property specifically.” In considering another objection the judge remarks: “This is said to be a contract between the surety and the sheriff, affording a certain security by bond, which is a personal contract to the plaintiff; and the argument is, that the court cannot change the security. The security is not changed, either by surrender before or at the time of trial; a new security is not substituted. The thing intended to be secured is substituted instead of the contract to secure. The contract is executed by delivery; and the plaintiff is placed precisely on the ground most for his benefit.” The security, it was said, is not liable for hire. [Id. 329 n. Riley R. 177.]

In Chandler vs. Boyd [1 Pike, 152], sureties of the character of the present are likened, as in the Louisiana case before cited, to the case of bail. The bail, in this case as in others, it was said, may discharge themselves by surrendering their principal.

In the case before us, the condition of the bond was com-' plied with in substance and letter; and'there can be.no doubt, we think, that the surety was wholly discharged from liability under it; and that the objection to his competency was thereby removed before he was called to testify in the case.

The judgment must be reversed, and the cause remanded for a new trial, in order that the defendants may have the benefit of the testimony of the witness.