Leiper v. Gewin , 8 Ala. 326 ( 1845 )

GOLDTH WAITE, J.

None of the cases cited go to the ex- ' tent of the decision of the Court below. It is true, the defendant in execution, with us, is admitted as a witness for his vendee, when the contest is between him and the creditor, or officer making the levy. [Standifer v. Chisholm, 1 S. & P. 449; McKenzie v. Hunt, 1 Porter, 37.] But there is a marked distinction between his capacity to testify under such circumstances, and when he is called to support his own title against one who does not admit that his is derived from the same source. We are not informed by the bill of exceptions, whether the defendant has sold the slave levied on, and applied the proceeds to the satisfaction of the execution; therefore it is unnecessary to consider how far that circumstance would affect the interest of the witness; but the position assumed by the Court below, seems to be nothing more or less, than calling one to subject property to his own debt. If this witness is competent, there is nothing to prevent a debtor from pointing out the property of another, to satisfy an execution against himself, and sustaining the levy by his own evidence. It seems too clear to admit of doubt, that the effect of such evidence would be to benefit himself, by discharging his own debt. This is the precise case of Bland v. Ansley, 5 B. & P. 331, the principle of which seems generally to have been recognized in England, and in this country. Thus, in Upton v. Curtis, 1 Bing. 210, it was held, in an action of replevin, by an under-tenant against the landlord, who had seized chattels for rent due to the tenant in chief, that the tenant was not a competent witness to prove the amount of the rent due from the undertenant; and in Pratt v. Stephenson, 16 Pick. 325,the debtor was rejected as a witness for the attaching officer. See also, Waller v. Mills, 3 Dev. 515. So in foreign attachment, the debtor is a competent witness for, but not against the garnishee. [Enos v. Tuttle, 3 Conn. 247.] Most of the decisions bearing upon this question are collected in Cowen and Hill’s Notes, 84,91,120,1522,and.the result seems to be, that the defendant in execution is not a competent witness for the creditor, or attaching officer, except in cases where his interest is balanced, in consequence of his liability as a warrantor, or unless he cannot be a loser by setting aside the act of the officer. In the case before us, if the plaintiff does not recover, the debt of the witness is discharged, to the value of the slave; he is therefore directly interested to defeat him, and no equipoise of interest is shown.

Judgment reversed and cause remanded.