Governor v. Gee

DARGAN, C. J. In the case of Bean v. Pearsal, 12 Ala. 592, the plaintiff offered his agent to prove that he had paid over to the defendant a sum of money, which the plaintiff had' left with the agent for that purpose. This court held that the testimony of the agent was admissible, on the ground of necessity, and that case is well sustained by the authorities on which it rests. In the case before us, the defendant offered his agent to prove that he had paid over to the plaintiff the money left by the defendant with him for that purpose. The same question, in principle, is presented in this case that arose in the case of Bean and Pearsal, and on the authority of that case, the judgment in this must be affirmed. But independent of the grounds of agency and necessity, I am clearly of the opinion that the witness, Vandyke, had not such an interest in this suit as would disqualify him from testifying. For if he had not paid over the money, the State could recover it of him, although it failed in 200 tais suit; or if the judgment had been in favor of the State, and the defendant thereby been compelled to pay, he could recover of his agent upon proof of his failure to pay the money that had been deposited with him for that purpose. The interest of the witness, in my opinion, was precisely balanced, and on that ground he was competent to testify. There is no error in the judgment, and it must be affirmed.