Drinkwater v. Holliday

ORMOND, J. It is inferrible from the proof in the cause, that there was an old account,.of long standing between these parties unsettled. It appears also, that in the year 1840, the defendant went to Mississippi, where the plaintiff resided, to get money, but whether as a loan, or in payment of a balance due him, does not appear. It is certain, however, that no settlement took place, but the plaintiff gave him an order on his agent in this State, for the money he then had on hand belonging to him, the repayment of which to the plaintiff, was to be secured by a deed of trust on a slave. He obtained the money, but afterwards excused himself from making the deed, because the negro was sick, and that he was able to pay the debt, if not, and the negro recovered, plaintiff could take him. It is perfectly clear from this statement, we think, that this advance of the money in Col. Hollis’ hands, is a separate and [137] distinct transaction, from the general account between these parties. This is conclusively shown by the promise of the defendant to secure the páyment of the sum he was to obtain, and his admission subsequently of his liability to pay it, and of the plaintiff’s right to the slave. This is a direct admission of indebtedness to that amount, and being a precise, ascertained sum, is not an open account, or barred by the statute of limitations of three years, although not reduced to writing. [Caruthers & Kinkle v. Mardis, 3 Ala. R. 600, and the previous cases in this court there cited.] There can be no doubt, that the defendant could reduce this amount by showing, that the plaintiff was then indebted to him, upon a subsisting account, which though due was not liquidated at the time the advance was made to him by the plaintiff ] but he cannot, after receiving this money upon an agreement to acknowledge himself the debtor of-the plaintiff for the sum to be received, cast upon the plaintiff the bur-then of unravelling his account, and showing what is the true state of the accounts between the parties. The practice of courts in modern times, is to prevent the exclusion of interested witnesses, if by any means in the power of the party, their competency can be restored, and no prejudice result to the other party. Thus, a surety to an appeal from an inferior court, may become a witness for the appellant, upon another surety being substituted in his place. [Tompkins v. Curtis, 3 Cowen, 251.] So also bail may be substituted, and an exoneretur entered as to the former bail, to enable him to testify. [Leggett v. Boyd, 3 Wend. 376.] And this it is said is a matter of right. See also, Irwin v. Cargill, 8 Johns. R. 407, and Stimmel v. Underwood, 3 Gill. & J. 282.] We entertain no doubt whatever of the power of the court in such a case as this, to cause a new bond to be substituted with sufficient surety, and to cancel the bond first executed; and as little about its being the duty of the court in such a case, when no possible injury could accrue, to direct it to be done. The only doubt we have felt, is, whether it is not one of the discretionary powers of the court trying the cause. But as this judgment must be reversed on the [138] other point considered, it is not necessary to determine this at this time. Let the judgment be reversed and the cause remanded.