Herndon v. Givens

COLLIER, C. J. We think.the-demurrer 'to the declara-■ tion was rightfully overruled. Each count distinctly alleges a promise- to pay the indebtedness- stated, .and the consideration set out in them is altogether sufficient to.sustain the promise.This conclusion- is so obvious-from the-mere-reading of the declaration-,, that we do not deem it necessary to give to. the counts a more special notice. — 267 — 2. The act of 1807 enacts, that “ no freeholder of this State shall be sued out of the county of his permanent residence,, provided the same be within this State,, unless it be in the actions enumerated in the last sectionnor shall any person who may reside in this State, be held to- bail,.- if sired out of the district or county of his residence and freehold.” Clay’s-Dig. 342, § 163. This enactment does not apply to suits com-mencéd by attachment, but only to those instituted in the ordinary mode of process against the person of the defendant. The attachment is an extraordinary remedy, justified by the exigency of the case, and supposes that the seizure of the defendant’s property by the initiatory process is most probably essential to the recovery of the plaintiff’s demand. If the creditor was always compelled to sue it out in the county in-which the debtor may be a “ freeholder ” and have a “ permanent residence,” it would sometimes be ineffectual, and the debt might be lost. Thus, where the freehold was of much less value than the amount of the debt, or w'as encumbered, and the creditor might meet the debtor in another county removing all- his personal estate beyond the limits of the State s if the creditor in such case were required to sue his attachment-in the county of the debtor’s residence,-before it could be levied, the latter might transfer his property to another jurisdiction. We cannot think the Legislature ever contemplated a restriction of the remedy by the act cited. This conclusion, is. indicated not only by the- liberal extension of the attachment law, but also by the terms of the act, which seem to- refer to-process against the defendant himself, and not against his estate. If the latter was- intended to be embraced, why inhibit the requisition of bail, which appropriately applies where the-defendant’s person has been arrested? Where property is seized under an attachment against a resident debtor, is the* defendant entitled to have his property restored,.unless he first executes a replevy bond conditioned- for its “ forthcoming and delivery fir the proper officer,” to satisfy the judgment that may be rendered against him? See Clay’s Dig., 57, § 11; 61, § 33. We content ouselves with this reference to the statutes, without stopping to answer these questions — having already said-more than is necessary, as the plea in- abatement appears from; the transcript before us- to have been, superseded by the pleas-in bar.- — 268 — 3. It is provided, by the eighth rule for the regulation of “ practice in the Circuit and County Courts,” that “ when the action is on any instrument purporting to have been signed by the defendant, and vtitliin the time prescribed for pleading, he shall give notice to produce it, it shall within one day thereafter be produced for his inspection. In default thereof, a non-suit may be entered, unless excuse be. shown.” Clay’s Dig. 610. It is perfectly clear, that the sufficiency of the excuse for the non-production of the writing must be determined by the court in which the requisition shall-be made. The excuse is addressed to the sound discretion of that court, and according to all analogy its decision must be conclusive and uncontrollable by the appellate tribunal. 4. We think the preliminary proof of the loss of the note was sufficient to let in secondary evidence of its contents.— The plaintiff stated that he delivered it to W. H. Estill, an attorney at law, for collection, in January 1842, and had not seen it since, although he had made diligent search for it. The clerk of the County Court of Benton testifies that a judgment was recovered in his court in July 1842, on the note against the Tidmores; that he had not seen it since that time; and that it was lost or mislaid before the present action was instituted. It was also shown that none of the papers connected with the suit against the Tidmores were in the files of the County Court. Whenever a judgment is rendered in an action founded upon a note or other writing, the usual and correct practice is to file the writing with the papers in the cause, there to remain, unless the court shall make an order for its withdrawal, which order is always readily granted where it is necessary to the prosecution or defence of a party’s rights. It must be presumed in the absence of opposing proof, that the note was left by Mr. Estill with the papers; and there being .no evidence to show its withdrawal, the fair inference is, that it has been lost or mislaid. 5. J. A. H. Givpns had no stich intérest in the result of this suit, as disqualified him as a witness. Though he may with his co-partner have been the primary debtor, and the plaintiff their endorser, yet when the plaintiff accepted of the defendant some money and other securities in payment of the judgment he recovered against the defendant, upon the note which J. A, — 269 — H. Givens & Co. transferred to him as collateral security for his endorsement, he adopted the note and judgment as his own and discharged the Messrs. Givens from all obligation to reimburse him his payments to the bank. Cocke v. Chaney, adm’r, 14 Ala. 65. The fact that the witness may still have continued a debtor to the bank can make no difference; for he would still be chargeable 'with that indebtedness, whether the plaintiff succeeds in the present suit or not; his liability cannot be affected by the suecess of the plaintiff; and even if the plaintiff fails to recover, he is bound to save the witness harmless. The witness then has no interest which the law will recognise, and the objection went to his credit. 6. The objections to the competency of J. A. H. Givens were also made to the examination of E. A. Givens. In addition, the latter stated that the plaintiff, his father, about six months previous to the institution of this suit, gave him one of the notes he had received from the defendant, in settling the judgment against him, which note the defendant had paid witness : Further, the witness was a member of the firm of J. A. H. Givens & Co., and if the plaintiff should fail in this action, he should feel “ honorably bound to pay him.” All this discovers no disqualifying interest. But while the examination was progressing on the voir dire, the defendant asked the witness if he had not executed two deeds of trust to the plaintiff since the present action, which being answered in the affirmative, he then asked the witness to state the consideration of the deeds. This latter inquiry was objected to, because the deeds were not produced, nor notice given to produce them, and the objection was sustained. In refusing to permit the question to be answered, we think the Circuit Court erred. It has been so often decided as to have become a settled principle, that a wttness may be examined on his voir dire as to the contents of writings not produced. 2 Phil. Ev., C. & H. notes, 260, 709-10: 3 ib. 1557. The question being adjudged inadmissible, without requiring the defendant to state what particular facts he proposed to elicit, it must be understood, that the decision was rested on the ground that parol evidence of the contents of the deeds was inadmissible under the circumstances, and it will be intended that he may have been prejudiced. Duffee v. Pennington, use, &c., 1 Ala. 506. — 270 — 7. The ¡record of the cause in chancery, at the suit of one of the Tidmores to enjoin the judgment at law against him, was clearly admissible for the purpose of showing a final decree had been rendered adverse to the plaintiff. One (at least) of the counts of the declaration alleged a promise to pay the plaintiff, if that judgment should prove unavailing; and to the extent for which it was offered the record was altogether pertinent. The defendant might show that it did not establish the facts assumed; but the plaintiffs having used the record for a legitimate purpose, did not entitle the defendant to avail himself of it, as proof of facts of which it would not have been primary evidence for him. 8. The affidavit that W.. Johnson is “a material witness,” and “ by reason of bodily infirmity is incapable of attending to give his testimony in court,” is a sufficient compliance with the statute to have authorised a commission to issue to take his deposition. Clay’s Dig. 164, § 1. But the objection that the deposition was not taken until the day after the commission, according to its terms, was returnable, must be sustained. See Ulmer v. Austill, 9 Port. 157. The commission was the warrant to the parties to whom it was addressed to take the deposition of the witness; the authority it confered had expired previous to its execution; and therefore the deposition, the regularity of which depended upon the vitality of the commission, was properly excluded. 9. When a record is proved by the certificate of the clerk of the court, who is its proper custodian, that it il is a true and perfect .transcript, &c.” If it is composed of several distinct papers, they should be attached, that the court may see that the certificate applies to all of them, or perhaps the certificate will not be sufficient to impart verity to all the detached papers. But perháps it would be competent to establish the genuineness and authenticity of the transcript by showing that it was a sworn or examined copy. These remarks will be sufficient to indicate the proper mode of authenticating the judgment and execution in the suit at law against the Tid-mores if the plaintiff shall desire to avail himself of them on a future trial. Having shown that there is error in the ruling of the Cfirpnit Court in the rejection and admission of the evidence, — 271 — ■we -will >not stop to consider the charges. The questions of law presented by them have been often adjudicated by this--.court, and if our decisions are observed, there will be no room •for misapprehension. Kennon v. McRea, 7 Port. Rep. 175; Kenan v. Holloway, 16 Ala. Rep. 56; Dearing v. Moffitt, 6 Ala. Rep. 776; Garnett, ads, Jordan, 3 Ala. Rep. 610; Milton v. DeYampert, ib. 648; Br. Bank at Mobile v. Tillman, 12 Ala. Rep. 214; Posey & Coffee v. Br. Bank at Decatur, ib. 802, and other cases. For the .errors we have shown, the judgment is reversed, ¡and the cause remanded. Chilton, J., not sitting.