Anderson v. Snow & Co. , 8 Ala. 504 ( 1845 )

COLLIER, C. J.

1. The testimony of the witness who was offered to prove the contents of the articles of partnership was properly excluded. True, he saw such a paper in the hands of one of the parties suedfin this action, but he could not say that it was signed by them, or by their authority, as he was unacquainted with their hand-writing. It was necessary to establish its genuineness — this fact could not be assumed, in the absence of all proof to the point.

2. It does not appear what facts the defendant proposed to prove by Lovelace, but he was rejected by the Court in limine, thus declaring his incompetency to give evidence to any matter within the issue. The cases cited by the defendant’s counsel from the first and fifth' Alabama Reports, we think, very satisfactorily show, that a partner, or joint promisor', who is not a party, is a’competent witness for-his partner, &c. where he is called to testify against his interest. However' extensive may have been the inquiry tolerated by the pleadings, Has fact of the defendant being a partner, and his consequent liability, were explicitly put in issue. To prove this fact, Lovelace was certainly competent. He was not joined as a defendant to the action, and if he was a partner, he was interested in the plaintiff’s recovery; for whether the plaintiff was successful or not, he might be called on to contribute to the satisfaction of the judgment, yet his contribution would necessarily be larger if it should be determined that the defendant was not also liable. This conclusion is so fully supported by the cases referred tó, that to attempt to reason further upon the point, would be the mere reiteration of what is there said. In this view of the question, it is unnecessary to consider’, whether the release or deposit of money by the defendant, could, if the witness were interested, make him competent.

3. The bill of exceptions merely states that the defendant offered to show the contents of the articles of co-partnership, by the witness, Lovelace, and the plaintiff’s objection to the evidence was overruled. Now this may, or may not, have been admissible, according to the circumstances, and as the record is entirely silent upon the point, we cannot know whether any foundation was laid for the introduction of secondary proof; but after making every presumption which can reasonably be indulged against the party excepting, we think it would be too much to intend that the proof of the loss was shown. The most natural inference is, that the objection was made because it did not appear that the articles of partnership could not be adduced. The proof offered by the plaintiff to let in secondary evidence upon this point could not avail the defendant anything; for it was insufficient to prove a loss, but was entirely consistent with his possession of the writing.

4. It may be assumed that the mortgage was admissible, as there is nothing to show the contrary, and the Court so ruled. This being the case, and the loss of the original being established, the copy transcribed upon the records of the County Court was competent, because it was as good as any secondary proof that could be adduced, and is made evidence by statute. [Clay’s Dig. 155, § 25.]

It follows from what has been said, that the judgment of the ‘Circuit Court must be reversed, and the cause remanded.