Gayle v. Bishop

CHILTON, J. 1. The witness, Boxley, was introduced on behalf of the plaintiff below, to prove a liability upon his surety; and it appears he had previously deposited with his surety corn sufficient to indemnify him against such liability. If the witness had any interest, it is manifest his interest was adverse to the party who introduced him; for if. by his testimony, he could have defeated a recovery on the part of the plaintiff, he could then have recovered back the amount he had deposited with the defendant, Gayle, as a payment upon said liability, and relieved himself from the cost which his security might have to pay on his account. 2 Phil. Ev. C. & H’s N. 82; Bigelow v. Benedict, 5 Conn. R. 116. 2. But he was the agent of Gayle in signing his name to the note, and as the proof of his authority does not relieve him from liability,- he was competent as a witness ex necessitate. 2 Phil. Ev. 96, n. 89, 241; 3 Ib. p. 1526, et seq.— where the authorities are collated. See also, Bean v. Pearsall, 12 Ala. 592. In Griggs v. Woodruff, at the last term, the agent, Herring, was held incompetent because he was of [555] fered to purge a contract of fraud, which was alledged to have been committed by him, and upon the validity of which contract his claim to compensation depended. 3. That the witness believed he was interested, when in fact he was not, is no sufficient ground for his exclusion. True, there are many respectable authorities which controvert this position. Richardson’s Ex’r v. Hunt, 2 Munf. 148; Skillinger v. Bolt, 1 Conn. Rep. 147; Plumb v. Whiting, 5 Mass. Rep. 518; Freeman v. Luckett, 2 J. J. Marsh. 390. But it is sustained by reason, as well as a decided preponderance of authority. See the numerous cases referred to in C. & H’s Notes to Phil. Ev. vol. 2, notes 91-2-3; Griggs v. Woodruff, supra; Jemison v. Conner et al. at last term. 4. There was no error in rejecting the record of a former recovery against Boxley and Hendrick, who confessed judgment in favor of the same plaintiff, and which showed a dismissal of the suit as to the plaintiff in error. However irregular it may have been to dismiss the suit against the plaintiff in error, it certainly did not discharge him from liability. At most, it could but amount to a dismissal of the entire suit, but the other defendants waived this, and confessed judgment, so that no advantage can result to Gayle from the supposed irregularity. We cannot perceive how the record of the former suit could in any way affect the rights of the parties in this action, or the competency of the witness. It only proved an unsatisfied judgment against the witness for the same demand, and this could not possibly affect his interest. As the record'proved nothing material in the cause, its exclusion did not injure the plaintiff in error. 5. It is certainly competent to impeach the credibility of a witness by proving, after laying the proper predicate for such proof, that he has made contradictory statements as to the subject matter about which he is called to testify, but the only effect of such statements when proved is, to affect the credit of the witness, and they cannot have the force of proof for any other purpose. The charge asked of the court assumes, that the declarations of Boxley, the witness, made to Oliver, that he was only authorized to sign the name of Gayle provided Oliver and others would sign the note also, are not only evidence to impeach Boxley, but original evidence as to [556] the nature and extent of his authority. It is not only hearsay, but liable to the objection that such declarations were made by a witness whose interest would forbid his giving -.evidence if offered by the defendant below. The principal debtor cannot be a witness in favor of the surety, when sued by the paye.e, except he be released. The ease of Freeman’s Bank v. Rollins, 1 Shipl. 202, where a different doctrine was held, is opposed by the current of authority. Riddle v. Moss, 7 Cranch, 206 ; Hunter v. Gatewood, 5 Monroe, 268 ; Hubby v. Brown, 16 Johns. Rep. 70: Pierce v. Butler, 14 Mass. Rep. 303; Kornegay v. Salle, 12 Ala. Rep. 534, and the authorities there cited. 6. The letter written by the plaintiff in error to the defendant several months after the execution of the note, was very properly excluded. Being no part of the res gestae, it was .not competent for any purpose. But as this assignment is not insisted on in the argument, we turn to the only remaining alledged ground of error, which is, that the court permitted Boxley, after a witness had been ■examined as to his declarations, to be re-examined by the plaintiff respecting his ■recollection of the conversation detailed by the witness. In Towns v. Riddle, 2 Ala. Rep. 694, the defendant was allowed to introduce proof after the rebutting evidence was closed- This court said the action of the circuit court in admitting the proof, was not the subject of revision, because the course of trial is entirely within the discretion of the circuit court, and because it is impossible for the revising court to determine whether the particular proceeding complained of was calculated to advance or defeat the purposes of justice. The matter is within the discretion of the court, to be .exercised for the advancement of the justice of the particular case, and is not revisable on error. The cases referred to by the counsel do not hold a different doctrine. In the People v. Mather, 4 Wend. Rep. 229, it was held to be within the discretion of the court trying the cause, whether or not to permit the re-examination of a witness after the lapse of a day, and after other witnesses have testified. So in Law v. Merrills, 6 Wend. 268, a witness was proposed for re-examination, to prove usury, after the testimony had closed, and the judge was summing up the evidence. Held, that [557] ¡the court exercised a proper discretion in rejecting him. Soil! this case, there may have been very substantial reasons which influenced the court in permitting the witness to be re-examined. Be this as it may, we cannot undertake to say he exercised his discretion improperly. There is no error in the record, and the judgment is affirmed.