Brumby v. Langdon & Co.

GOLDTHWAITE, J. 1. When this cause was heard, we inclined to the opinion held by the court below, but more consideration has satisfied us, the witnesses rejected are not within the influence of the act of 1845. Our decisions previous to that period were, that a mortgagee could not sustain a claim, as against an execution creditor of a mortgagor, before the expiration of the law day of the mortgage, when by its terms, the debtor was entitled, until then, to retain the possession. It was also the settled law of the court, that the defendant in execution was a competent witness to sustain the claim. In view of these decisions, the act provides, that the mortgagee of personal property may maintain a claim, but declares the mortgagor, and the defendant in execution, in all cases of the trial of the right of property, under that act, or under the then existing laws, shall be incompetent to give testimony between the parties. [Acts of 1845, p. 136.] It will be seen, the statute does not declare that persons in this condition shall be deemed interested, and therefore incompetent, but cuts loose from all considerations of the reason for excluding them, and pronounces their incompetency to give testimony. It was with reference to this peculiar connection of the statute with previous decisions, that we said, in Yarborough v. Moss, 9 Ala, 382, the legislature has seen proper to declare, “ a particular means of obtaining evidence shall be abolished.” The evil which the statute intended to eradicate was, the allowance of defendants in execution as witnesses in suits of this description., not because such persons are interested, but for reasons of policy, most probably induced by the strong bias of witnesses in this condition, to defeat the execution creditor. [750] It is obviously the duty of courts, in the construction of remedial statutes, to give them the greatest proper effect in advancing the remedy, or in the extirpation of the mischief contemplated, but we are at a loss how to perceive the exclusion of a corporator as a witness, can be said to be within the policy of this enactment. The execution against the corporation, in its corporate character, certainly does not make such a person the defendant, and as to the bias, it may be entirely the other way. It would be alarming, if the effect of this statute was such, that a stockholder in a corporation fraudulently conveying its effects, could not be called on to testify against the claimant, and yet this would be the consequence of holding such a witness a defendant to the process, when issued against the corporation. On the whole, we think it best comports with the design of the act, to extend it no farther than those who are on the record as defendants. This conclusion shows the error of rejecting the deposition, and in excluding the witness, as under the previous decisions of this court, there was no interest to disqualify. 2. This disposes of the case, but as the other question may again arise, it is as [well now to decide it. A philosophical aparatus, in our judgment is a distinct thing, though necessarily composed of many instruments. We should not suppose it necessary to assess the value of each article in a box of tools, or a case of surgical instruments, and we do not perceive why a different rule should obtain with regard to the levy here made, as it is obvious the different sets of instruments are only part of the entire apparatus. [Haynes v. Crutchfield, 7 Ala. 189.] Let the judgment be reversed and remanded.