Montgomery & Wetumpka Plank-Road Co. v. Webb

RICE, J. The members, or stockholders, in a corporation [620] created for private emolument, are not admissible as witnesses for the corporation. — 1 Greenl. Ev. § 333. . The 5th section of the charter of appellant provides, that the directors “shall'be owners of stock.” — Pamph. Acts of 1849-50, p. 244, § 5. The proof, then, that Joseph S. Winter was a director of appellant in the spring of 1850, unexplained and unconiradicted by any other evidence,, was proof that he was a stockholder. If this proof had been made by the testimony of Joseph S. Winter'himself, then the other part of his testimony, showing that-at'flJicjjtrial, in the spring of 1853, he had no interest in thehiásalhpf ’this case, should have been considered by the court, and 'held sufficient to admit him as a witness. But, as the proof of his interest was made in another way, and came from a competent source, it is clear that he could not by his own testimony remove the objection to him as an interested witness, nor qualify himself to testify for the appellant.— Herndon v. Givens, 19 Ala. 313. The plaintiff admitted only, that if Joseph S. Winter was in court, he would swear to the facts as set forth in the affidavit of Moody. This was neither an admission that the facts as therein set forth were true, nor that Joseph S. Winter was a competent witness to testify either to the court or the jury. There was competent evidence, showing that Joseph S. Winter was a director and stockholder, and therefore interested. There was no competent evidence to the contrary, unless the lapse of time between the spring of 1850 and the spring' of 1853 furnished ground for presuming that he had ceaséd to be a stockholder. This lapse of time did not furnish ground for any such presumption. On the contrary, as he was proved to be a stockholder in the spring of 1850, the presumption is that he continued to be a stockholder at the trial in the spring of 1853. — 1 Greenl. Ev. §§ 41, 42 ; Garner v. Elliott, 8 Ala. 96. Judgment affirmed.