Carville v. Stout

ORMOND, J. The act of 1845, (Pamphlet Acts, 136,.) declares, that the mortgagor, or defendant in execution, in all cases of the trial of the right of property, shall be incompetent to give testimony between the parties. The policy of this act, was to render these persons incompetent to testify, independent of the question of interest, for as the law stood previous to this enactment, persons so circumstanced could not testify, unless they were disinterested-, or at least unless their interest was equally balanced, and their exclusion by this statute, is founded on public policy, irrespective altogether of the question of interest. It follows necessarily, that the bankruptcy of a witness did not render him competent, as that could only affect his interest, and therefore left him in the same condition he was in before' he took the benefit of the act. The act declares him an incompetent witness, and no act that he can do, can restore his competency. Such have been the previous decisions of this court upon the law. [Yarborough v. Moss, 9 Ala. 382, and Brumby v. Langdon & Co. at the present term.] 2. But this point is rendered wholly unimportant, by the agreement afterwards entered into by the parties to read the deposition of Carville, and examine Bissell as a witness. Nor did the court err in permitting the plaintiffs to refer to, and read the previous depositions of Carville, without imposing on them the obligation of making him their own witness: when a party takes the deposition of the same witness more than once, he necessarily opens the testimony, to any objection arising from a discrepancy between the statements of the witness in the first and subsequent depositions. Thus, in Hester and others v. Lumpkin, 4 Ala. 512, speaking of such a ease, it is said, ‘-'the subsequent deposition could also be confronted with the first, and any material departure therefrom, or contradiction therein, would impeach the credit of the witness.” • But how could this be, if the other party [803] could only refer to the previous depositions, upon the condition of making the deponent his witness. By so doing he Avould confer credibility upon him, and would thus defeat the very object in view. We are clear in the opinion, that when the last.of a series of depositions is read by the party taking it, he thereby makes the previous depositions, evidence, and they may be ¡referred to by either party for the purpose of sustaining or discrediting the witness. 3. We think it a matter of great doubt, whether the written statement of Long was evidence for any purpose, except to show the consent of his firm to the assignment; and it is also very doubtful, from the bill of exceptions, taken,in connection with the certificate of the presiding judge, whether it was admitted for any other purpose. But the competency of the testimony does not appear to’be raised by the bill of exceptions. As we understand'it, it narrates the transaction in the court below, thus-^-the .plaintiff offered the entire instrument in evidence. The claimaut objected to this, and pointed out certain portions of the statement - as prpper.io.be read, to which the plaintiffs' counsel assented, and; the parts of the writing so indicated were read to the.jpry without exception. The claimant then insisted, that if part was read, the whole should go to the jury, to which the plaintiffs’ counsel also assented, but the claimant then insisted on excluding certain portions which he pointed out; but the court decided that the whole should be read, and it was read to the jury. After this, on motion of the plaintiffs, the court excluded all the statement from the jury, except the portions first read with the assent of the claimants’ counsel, and to this exclusion of the whole of the residue, the claimant excepted. By this last act, the court placed the parties upon the same ground they occupied at first, when by consent, apart, instead of the whole was read as evidence. There can be no doubt of the power of the court to permit-a party .to .withdraw from the jury, testimony, which had been inadvertently .offered; nor is the opposite party at all prejudiced thereby. The object of the claimants’ counsel appears to have been, to have certain portions of the instrument read, excluding others, but this was resisted on the other side, and he .coiild not claim it as a right. Upon the whole, we are unable to perceive [804] that any error was committed of which the claimant could complain. 4. The charges moved for, and refused by the court, are based upon the hypothesis, that conceding the assigned property could have been levied on and sold to satisfy the plaintiffs’ judgment, because the assignment was fraudulent, the property levied on was not subject, although it had been purchased with the proceeds arising from the sales of the property so fraudulently assigned. At the present term of this court, we have held the converse of this proposition to be law, in the case of Abney v. Kingsland, et al. That was where a slave had been fraudulently sold, for the purpose of defeating creditors, and afterwards exchanged by the fraudulent vendee for another, and it was determined that the slave so obtained in exchange, was subject to be levied on by the creditors of the fraudulent grantor. The principle of that case is identical with the question now under consideration, as is also the previous case of Marriott v. Hardesty & Givens, 8 Ala. 710. From these considerations it is apparent there is no error in the judgment of the circuit court, and it is therefore affirmed.