Head ex rel. Youngblood v. Shaver , 9 Ala. 791 ( 1846 )

ORMOND, J.

The defence set up in this case, was a payment of a judgment against the defendant, as a garnishee in an attachment suit, against the nominal plaintiff. It cannot be doubted, that this was proper evidence, nor was the defendant concluded by his answer from showing, that the indebtedness he then admitted from himself, to the nominal plaintiff, was made in reference to the note here sued upon, though the indebtedness then admitted was not so great as the note upon its face called for.

The expression of the witness, that he had seen the note, in the hands of the nominal plaintiff, eighteen months before, and believed it to be the note sued upon, but was not positive of the fact, is not the expression of an opinion in the proper sense of that term.. It is the assertion of the existence of a fact, qualified by the admission that the recollection of the witness is not so clear and distinct, but that he may be mistaken. This qualification though it weakened the force of the testimony, and in the opinion of the jury may have deprived it of any value as evidence, did not authorize the court to reject it — it was for the jury alone to determine what weight it was entitled to.

But in allowing the declarations, or admissions of the nominal plaintiff, after he had parted with his interest in the note, by transferring it to Youngblood for his indemnity, the court erred, as he could not impair the title, after such transfer, by any declaration or admission. [Copeland and Lane v. Clark, 2 Ala. Rep. 388; see also Chisholm v. Newton & Wiley, 1 Id. 371, and Brown v. Foster, 4 Id. 282.]

• The judgment in favor of both defendants, though but one had executed the appeal bond, was strictly correct. The appeal was of the entire judgment, and was not sevreed because one only executed the bond.

For the error as previously indicated, the judgment must be reversed and the cause remanded.'