Pitts v. Burroughs

| Ala. | Jun 15, 1844

COLLIER, C. J.

It was not allowable to show, that at and previous to the time, the defendant caused his attachment to be issued, common reputation in the neighborhood in which the parties resided, supposed that the plaintiff had gone to Mississippi to visit his children. If it was material to show where the plaintiff was, and the object of his absence, the fact could be shown by proof more precise and satisfactory than mere report or rumor. The cases in which common reputation is admissible, are exceptions to the ordinary rules of evidence, and usually rest upon the .ground of necessity. Such proof is admitted to prevent a failure of justice, and when, from the nature of the inquiry, the fact cannot be established by evidence more certain and ■ satisfactory. The present case does not come within any recognized exception.

What a party said contemporaneously with the doing of a particular act, may, in general, be proved as constituting a part of the res gestae, and necessary to characterize it. [Rex v. Smith, 5 Carr. & P. Rep. 201; Tompkins v. Saltmash, 14 Sergt. & R. Rep. 274; Boyden v. Moore, 11 Pick. Rep. 362; Hatton v. Banks, 1 N. & McC. Rep. 221.] In Ponsony v. Debaillon, et al. [6 Mart. Rep. N. S. 238,] the action was on a bond given upon suing out an attachment against an absconding debtor to indemnify the adverse party. The question was. whether the defendant was influenced by malice in causing his attachment to be issued; and it was held, that it was competent for the defendant to show he made inquiries after the plaintiff of third persons, and what were their answers as to his absence and the cause of it, without producing those persons to testify. It was said, in West v. Price’s heirs, [2 J. J. Marsh. Rep. 380,] that “conversations or declarations made by the actor or party concerned, at the time an act is done, and which explain the quo animo and design of the performance, may, whenever the nature of the act is called in question, be given in evidence as part of the res gestae.— Without tolerating this explanation of the acts of men, by receiving their accompanying declarations, we should be often misled as to their true nature and character, and consequently liable to fall into errors in respect to them. '1 he rule requiring res gestae declarations to be received as evidence, is a necessary and very useful one.” [See, also, Doe ex dem. Hitman v. Pettett, 5 Barnw. & Ald. Rep. 223; Downs v. Lyman, 3 N. Hamp. Rep. 486; 2 Phil. Ev. C. & H.’s notes, 592, and cases there cited; Greenl. Ev. 120-1-2.]

In die case before us, the thing done was the departure of the plaintiff from his home; what he said upon leaving, or immediately previous thereto, as to the point of his destination, the object he had in view and when he expected to return, were explanatory of his intention;' and in the absence of opposing proof, might repel the imputation that ho was absconding or otherwise endeavoring to evade the service of ordinary process. These declarations, it is true, would not be conclusive upon the defendant; but it would be competent for him to prove that they were not just exponents of the res gestae. Other evidence would be admissible to show that his acts and intentions were different from what his statements indicated. The testimony on this point, it will follow, was improperly rejected.

The charge to the jury is clearly erroneous. It cannot be admitted that by leaving the State for a short time, a debtor subjects himself to the imputatien of absconding or secreting. Something more than mere absence is necessary to warrant such an inference. Contemporaneous acts, the demeanor of the debtor previous and subsequent to his departure, as well as what he said, are all admissible, at the instance of the creditor, to show that he had a probable cause for resorting to the remedy by attachment to collect his debt. The opposite conclusion, would make it necessary for one who is indebted to extinguish his liabilities before leaving the State,' in order to protect his property from seizure; and this, although the object of his absence may be to obtain the means to pay his debts. And the same precaution would be proper whether his debts had matured or not; for an attachment will lie against an absconding debtor in either case.

The neglect of the debtor to inform the creditor of his intention to visit another State, cannot determine the object which induced him to go. lie was not bound to impart such information, and the neglect to give it, does not authorize an inference prejudicial to his integrity.

It results from what has been said, that the judgment must be reversed, and the cause remanded. ,