Dumas & Co. v. Patterson

COLLIER, C. J. In Duffee v. Pennington, use, &c. 1 Ala. Rep. 506, it was held, upon a very full examination of the authorities, that the defendant might examine the nominal plaintiff as a witness, if the latter did not object. In Scott, surviving partner, &c. v. Jones, et al. 5 Ala. Rep. 694, the admissibility of a party to the record to give evidence, was thoroughly considered, and we then held, that where an action is brought against several persons as partners, and one of them suffers a judgment by default, the latter is a competent witness for the other defendants, to prove that they were not his partners ; for a verdict in their favor will not, under the statute, operate a discontinuance of the action as to him. See Turner, et al. v. Lazarus, 6 Ala. Rep. 875. Conceding then, that both the sheriff and his sureties are parties to the record, the cases cited, are quite sufficient to show, that if the sheriff was willing to give evidence for the plaintiffs, he was entirely competent, unless he was interested in fixing a liability upon his sureties. We think it must have been immaterial to him, so far as interest was concerned, whether a liability was fixed upon the one set of sureties or the other; for in either event, he was liable for his default, and could be called on, if able, to indemnify them, He was chargeable primarily, they consequentially; and whether they were successful in .their defence or not, it could have no influence upon the motion against him. . The declarations of a sheriff, made while he was acting officially, in relation to the receipt of money, forms a part of the res gestee, and are admissible as a part of the act, and explanatory of it; but if made while he is. not transacting official business, or in contemplation of such business to be performed, it is inadmissible. See Bondurant, et al. v. The Bank of Ala., 7 Ala. Rep. 830, and cases there cited. What the sheriff, in the present case, said, in respect to the appropriation of the money collected on the plaintiffs’ fi. fa. must, in the manner in which the bill of exceptions shows the inquiry was made, be regarded as an independent declaration, referable to- no official act; consequently it was rightly excluded. In the Governor, use, &c. v. Robbins, et al. 7 Ala. R. 79, it was held, that where a sheriff collects money on & fieri fa [487] cias, and renews his bond before it was demanded of him, or he converts the same, the sureties in the latter bond may be charged with his default in failing to pay over the money, if the evidence shows its conversón after their bond was received, and before they were discharged from the suretyship. We there said, “all reasonable presumptions favorable toa performance of official duty, are indulged, and it cannot be presumed, from the mere receipt of money on an execution, by a sheriff, that he has converted it. If it had been shown, previous to the execution of the bond in suit, that the principal of the defendants had appropriated the amount collected by him, then the first set of sureties only would have been liable. But the proof does not show such to have been the predicament of this case; the liability to an action does not appear to have been fixed, until after the renewed bond was executed.” It is apparent, from this statement of the law, that it was important for the plaintiff to show when the liability of the sheriff attached, that it might appear which set of his sureties were liable. Tliis might be done by proof of a demand and refusal of the sheriff, or of the appropriation of the money to his own use, and when. The evidence then, sought to be elicited from the sheriff, was pertinent, and its rejection a fatal error. It may not be amiss to say, that the mere payment of money collected on one execution, to the plaintiff in another, or an appropriation of it by the sheriff to other purposes, will not be regarded as a conversion, so as to subject him or his sureties to a judgment on motion, for the failure to pay it over, if he retains other money ready to be paid to the plaintiff, on demand. It may be often difficult to prove a conversion, though it has actually taken place, otherwise than by showing a refusal to pay, yet, notwithstanding the difficulty of making such proof, we are satisfied with what we said as to its effect in the case last cited. It remains but to add, that the judgment of the County Court is reversed and the cause remanded.