Governor v. Baker

COLLIER, C. J. The pleadings in this cause which follow the declaration are exceedingly untechnical and informal, to say nothing of substantial defects, and perhaps several' of the issues are immaterial. We however forbear to notice the pleas, except so far as they are brought to our view by the demurrer. [655] 1. The third plea is in these words, “ that the property was not subject,” to which the plaintiff replied, “that the sheriff was indemnified to make the levy of the attachment on the property of the plaintiff, Lowe.” The replication is certainly bad; for if the slaves levied on at the suit of Lowe were not subject to the attachment, and could not have been rightfully sold to satisfy it, 'a bond of indemnity could not prevent the sheriff from showing the fact, if it was material to his defence. That it is competent for an officer when charged with a neglect of duty in parting with the possession of property which he had seized under process, to show that it was not subject to seizure, is abundantly shown by The Governor, use, &c. v. Gibson, et al. at this term, and cases there cited. But the present action is brought for the failure to return the attachment according to its mandate, and if the sheriff has failed to perform this duty, it is no answer to say that the property on which it was levied, was not the defendants, and could not have been subjected to the satisfaction of the judgment, which might have been rendered. Whether this be so or not, or whether any judgment could have been obtained, the sheriff became liable by his neglect, and the plaintiff could at least have recovered nominal damages. This conclusion rests upon legal principles too well established to require the aid of authority. As then the plea itself is faulty, the demurrer should have been visited upon it instead of being sustained to the replication only. 2. The fourth plea is also bad, and is as follows: “that the plaintiff, Lowe, has been paid.” It is not alledged whether his debt has been paid in toto, or when it was paid. But if these defects were supplied, would it be allowable for the sheriff to excuse his neglect of duty by showing that the attachment issued for a cause which had no legal existence h The law made it imperative upon him to return it, and the failure to perform this duty was.a breach of his official bond. True, the measure of the plaintiff’s damages would be graduated by the injury he sustained, but in any event he would be entitled to recover a nominal sum, and this is a sufficient reason to show that the plea does not answer the declaration. 3. “Where the act of an agent will bind the principal, there, [656] his representations, declarations, and admissions, rerpecting the subject matter will also bind him, if made at the same time, and constituting part of the res gestae.” They are of the nature of original evidence, and not of hearsay ; the representation or statement of the agent in such cases, being the ultimate fact to be proved, and not an admission of some other fact. But the admission or declaration of an agent binds his principal only when it is made during the continuance of his agency in regard to a transaction then depending, et dum ferret opus. It is because - it is a verbal act, and part of the res gestae, that it is admissible at all; and therefore it is not necessary to call the agent himself to prove it; but whenever what he did is admissible in evidence, there it is competent to prove what he said about the act while he was doing'it; and it follows, that where his right to act in the particular matter in question has ceased, the principal can no longer be affected by his declarations — they being mere hearsay. 1 Greenl. on Ev. $ 113, and citations in notes ; 2 Phil, on Ev. C. & H’s Notes, 168, et seq. This view of the law is quite sufficient to show, that the declarations of Mangham which were proved by Yance should have been rejected, for the reason that it was not shown they were made during the time he was the agent of Lowe, in respect to the transaction to which they related. The citations we have made very fully establish, that this was an essential pre-requisite to their admissibility. 4. The mortgage to Carey and others, who were the sureties of the defendants in attachment to the Bank of Columbus, and the bill of sale subsequently executed by the mortgagors for the slaves in question were clearly admissible evidence. True, they did not excuse the sheriff’s default, yet they tended to show that the defendants had disposed of their interest in the slaves previous to their seizure by the sheriff, and that consequently the fact of their having been in his possession, did not authorize a verdict for damages beyond what would otherwise result from his default. The evidence then was altogether proper, as tending to reduce the extent of the recovery against the defendants in this action. 5. It is unnecessary to inquire whether the testimony of [657] the witness, Holland was properly received, as the court me-ro motu withdrew it from the consideration of the jury, and instructed them explicitly to disregard it. 6. The fact that the witness, Stewart, was a stockholder in, and President of the bank for whose benefit the slaves were purchased, did not disqualify him, and he was rightfully allowed to testify for the defendants. Neither the witness, nor the bank with which he was associated had any interest in the result of this suit. No matter what might be the extent of the plaintiff’s recovery, the defendant could not call on the witness or the bank for indemnity, or reimbursement ; and it is difficult to imagine a state of things in which, in legal contemplation, the witness or the bank could be prejudiced or advantaged by the verdict and judgment. If then, there was any possible objection to the witness, it lay to his credit instead of his competency. What has been said upon this point, applies with* all force to the testimony of Preston, one of the defendants in attachment, and we need not therefore repeat the ground upon which the admissibility of his testimony may be vindicated. 7. No question is raised upon the record in respect to the statute of Georgia, which we find in the transcript, in relation to fraudulent assignments. But we would remark, that it was said, in Terrell et al. v. Green et al. 11 Ala. 207, that the intention of the legislature in the act referred to, was to break down the practice of giving preferences to certain creditors by deeds of assignment, and to compel debtors making assignments in trust, to place all their creditors on the same footing ; that the mischief to be guarded against, was not the payment of one creditor, to the exclusion of others, by an actual, b'ona tide sale, for of this, as a general prevailing evil, little danger could be apprehended any where. . We still think this is a just interpretation of the act, and it is in accordance with the decision of the highest court of Georgia. Eastman et al. v. McAlpin, 1 Kelly’s Rep. 157; Davis et al. v. Anderson et al. Id. 176. 8. The fact that Preston was a stockholder in the Columbus Bank, could not impair or render inoperative the mortgage or subsequent sale. It is certainly allowable for a stock [658] holder to borrow money from the bank in which he is interested, and if he may do this, it is difficult to perceive a reason why he may not secure its payment by a mortgage, or other security. The validity of such transactions is well supported by authorities which rest upon impregnable reasoning. Pope v. Brandon et al. 2 Stew. Rep. 401, is direct to the point. It will appear from this view, that the circuit court erred in several of the points noticed, but we will not stop to recapitulate. The judgment is reversed, and the cause remanded. . Chilton, J., not sitting.