Taylor v. B. Bank at Huntsville

COLLIER, C. J. A deposition should not be rejected, because the questions and answers were written by the attorney for the party who offers it as evidence. Wynn and wife v. Williams, Minor’s Rep. 136. But if a deposition be written by the party at whose instance it was taken, it cannot be read in evidence, unless the opposite party was present consenting thereto. Steele v. Dart & Co. 6 Ala. Rep. 798. It has been held that a motion to suppress a deposition which has been taken pursuant to statute, is addressed to the sound discretion of the court, and should never be allowed when sprung at the trial, as its effect then must be to take the opposite party by surprise. Cullum v. Smith & Conklin, 6 Ala. Rep. 625; Spence v. Mitchell, 9 Ala. Rep. 744. See also Carter v. Manning & Jackson, 7 Ala. Rep. 851. A deposition taken before one who has acted as the agent of the party in the same cause is admissible. Smith v. Smith, 2 Greenl. Rep. 408. But a deposition taken before an uncle of one of the parties to the suit has been rejected. Bean v. Quimby, 5 N. Hamp. Rep. 94. In Wood v. Cole, 13 Pick. Rep. 279, it was held that a magistrate who had previously been of counsel in the cause, but was not so, at the time of taking the deposition, and had no interest in the case, was legally competent to take it. See also Chandler v. Brainard, 14 Pick. Rep. 285; Coffin v. Jones, 13 Id. 441; McGinley v. McLaughlin, 2 B. Monr. Rep. 302. We have cited these decisions of this and other courts, as furnishing the most striking analogies to the case at bar, of any that have come under our notice; but we would remark in respect to the adjudications in other States as to the ad [637] missibility of depositions upon trials at law, they depend on their own legislation, or rules of court, and cannot therefore be much relied on. It will be observed that the individual who executed the commission under which Lacy’s deposition was. taken, was not the attorney of the plaintiffs in the case made by the interposition of the claim of property, that is, he did not give it his attention in court. True, he was the general, attorney of the bank, and in that character recovered the judgment of which it was the object of the present suit to obtain satisfaction, and doubtless, when necessary, was consulted, or gave his advice in respect to it. We think that the fact that he was the commissioner to take a deposition for the bank, would not per se, and under all circumstances, warrant its exclusion as evidence. Our statute does not prescribe the qualifications of the persons to whom a commission shall issue, but merely that it shall be directed to one or more persons to take and receive the deposition, which being taken and returned as directed, “shall be received as legal testimony.” Clay’s Dig. 164. In this condition of the law, the deposition cannot be rejected, unless the commissioner had a direct interest in the result of the cause, or unless public policy requires he should be adjudged disqualified. There is nothing to indicate that he bad the least interest in thp matter, and no consideration of policy can require the adoption of an arbitrary rule requiring the exclusion of the evidence. The deposition is in his own hand-writing, and the commissioner merely certifies it according to the directions of the law. If it be allowable for the attorney of the party to write out the deposition of the witness, as decided in Wynn and wife v. Williams, and McGinley v. McLaughlin, supra, we think he must be competent to certify the deposition; especially when he has no interest, but merely acts, if at all, as :a counsellor in this cause. It was clearly competent for the plaintiff to show when the debt upon which the judgment was recovered, originated. This it might be necessary to prove, in order to defeat the transfer of the slave under which the claimant set up his aright, and no evidence upon this point could be more satisfactory than proof of the discount of the first note, in 1837, [638] and the repeated renewal of the evidence of indebtedness down to 1843, when the last note was given, £>n which the plaintiff sued. The connection between the notes being shown, the identity of the debt is abundantly established. If the admissions of the defendant in execution had been made previous to 1837, when he became indebted to the plaintiff, then they would have been admissible to show his indebtedness to the claimant; but the bill of exceptions merely recites that they were made previous to the transfer of the slave in 1842. Under these circumstances, and the possession of the slave not continuing with the defendant his declarations were properly excluded from the jury. Goodgame v. Cole & Co. 12 Ala. R. 77. In Drinkwater v. Holliday, 11 Ala. Rep. 134, it was decided that a surety to an attachment bond, who is a necessary witness for the party, may be made competent by the execution of a new bond with other sufficient surety, and it is the duty of the court to permit such substitution to be made. It was however added, that it might be doubtful whether the exercise of the power of substitution was not discretionary with the court trying the cause, but the decision of this question was waived, as the judgment was erroneous upon another ground. Perhaps the decisions are not uniform on this point, but we incline to think their weight is decidedly favorable to considering it a matter of right, which cannot be denied by the court. See Irwin v. Cargill, 8 Johns. R. 407; Tompkins v. Curtis, 3 Cow. Rep. 251; McCulloch v. Tyson, 2 Hawks’s R. 336 ; Leggett v. Boyd, 3 Wend. 376 ; Stimmel v. Underwood, 3 G. & Johns. Rep. 282; Butler v. De Hart, 1 Mart. Rep. N. S. 184; Bailey v. Hale, 3 Carr. & P. Rep. 560; 1 Mood. & M. Rep. 289; Whatley v. Fearnley, 2 Chit. Rep. 103 ; Pearley v. Fleming, 5 Carr. & P. Rep. 503; Salmon v. Rance, 3 Serg. & R. Rep. 311; Roberts v. Adams, 9 Greenl. Rep. 9; Hall v. Baylies, 15 Pick. Rep. 51; Beckley v. Freeman, 15 Pick. Rep. 468; Allen v. Hawks, 13 Pick. Rep. 79; Bailey v. Bailey, 1 Bing. Rep. 92; Lavender v. Pritchard, 2 Hayw. R. 337; Garmon v. Barringer, 2 Dev. & Bat. Rep. 502. That such should be the rule we do not doubt. The party, at the time his surety became such, might not know that he was a material wit [639] ness in the cause ; or perhaps he may have had others who could depose to the same facts, whose testimony, either from death or other cause, he could not command at the trial; or it may be, at the time the witness united with him in a bond, that he could not give other surety. In either of these cases, and others that might be supposed, it would operate hardly upon the obligor if he could not discharge the interest of his surety by substituting a. new bond. The bond first executed by himself and surety was not dictated by the obligee, nor could the surety have been the selection of the latter. The parties did not stipulate by a mutual arrangement, in which they were both personally actors; but in re-pect to bonds taken by a public officer in some judicial proceeding, the law generally prescribes the form of the bond, and the officer must see that the surety is sufficient; and if this object is effected, the obligee has no just ground of complain^ This being the case, we cannot perceive a reason why one surety should not be discharged by putting another in his place where justice requires the examination of the latter as a witness. In withdrawing from the jury the evidence to show, that the defendant in execution was the surety of Joel Chandler, that the judgment was first obtained against the latter, who had ample property to satisfy it; that this property could have been levied on by the sheriff of Benton, who had executions in his hands, one of which he failed to return, and both to levy, &c., the claimant was not prejudiced. Conceding the truth of all this, and still it furnishes no reason why the slave in question should be held to be the property of the claimant, or not liable to satisfy the execution. Such evidence does not impair the effect of the judgment, and show that it should be enforced against the defendant, or such estate as he may have subject to its payment; and if it did, it is not for the claimant to object to the irregularity of proceedings against the defendant, unless, perhaps, the irregularity makes the judgment a nullity. But evidence which merely shows that the judgment is voidable, at the election [640] of the defendant, or that the plaintiff has an additional reme-* dy for the collection of his debt cannot avail the claimant. For the refusal to permit the surety of the claimant to be examined as a witness for him, upon the substitution of another bond, the judgment is reversed, and the cause re-, manded. Chilton, J., not sitting.