Steele v. Dart & Co. , 6 Ala. 798 ( 1844 )

ORMOND, J.

The deposition being shown to be in the hand-writing of the defendant, was properly excluded. There would be no security for suitors in our courts, if the evidence was permitted to be written down by a party to the suit, the opposite party not being present and consenting thereto.

The evidence taken by deposition, is most usually ex pa?'te, and requires all the guards which can be thrown around it to secure it against imposition and unfairness. In the case of an ignorant or willing witness, a party to the suit could shape the testimony to suit his own purposes; and we are clear in the opinion, that the deposition was properly rejected.

As it regards the promise made by the defendant, my own opinion is, that it is an absolute promise to pay the debt, though I admit the question is not entirely free from difficulty. My brothers think that the concluding sentence of the letter, in which the defendant says that he is the “agent of the trustees,” shows that he did not intend to bind himself individually, but that he merely intended to state, that having the control, as agent of the trustees, of the means provided by his father for the payment of his debts, he would be enabled to discharge the debts; and that if he is responsible upon his promise individually, it must be in his character of agent, when the question would be whether he had authority to make the promise on behalf of the trustees. I rather incline to the opinion that the true meaning of the letter is, that he intended to bind himself individually to pay the debt, and discloses the fact, that he was the agent of the trustees, and as such, had possession of the funds to assure the plaintiffs that he, although a mere youth, as he appears to have been, had the ability to comply with it.

Let the judgment be reversed, and the cause remanded.