Stewart v. Conner , 9 Ala. 803 ( 1846 )

COLLIER, C. J.

The evidence of the clerk of the county court, that he had made diligent .search for the three writs of fieri facias, which first issued for the collection of the sev-’ eral sums adjudged by the decree to Jemison and Stewart, and had been unable to find them, we think was quite sufficient to let in secondary evidence of their contents.

By the act of 1813, the clerk of every court is required to enter in a docket, or book kept for that purpose, a list of all executions issued by him, specifying therein the names of the parties, the amount of the judgment, interest and costs in such execution; the name of the person to whom it was delivered, to what county directed, the date when isssued, and the return day thereof; and when the same is returned, shall without delay, record it at large on the same page or folio on which the execution is entered, and shall constantly carry the book to the court of which he is clerk. [Clay’s Dig. 144, § 8.] In Hartley, use, &c. v. Chandler, et al. 6 Ala. Rep. 857, we said, “ whether the entries upon the execution docket are evidence per se, we need not inquire; but when aided by the testimony of the clerk, or his deputy, that they were genuine, and that he had no doubt but they correctly stated the day when executions were returned, we know of no principle of law which' would render them incompetent evidence.” The clerk in the present case, made a statement conforming substantially to what was there held to be sufficient, viz: that the book produced was the regular execution docket kept by him in his office, in which he made the entries of the issuance and return of executions.” There was then no error in the admission of the execution docket.

We are unable to discover any objection to the proof showing that other executions subsequently issued upon the decree, that the sheriff in whose hands they were placed was dead," and that the indorsements thereon were in his hand- • writing ; and consequently cannot say that this evidence was improperly admitted.

All the receipts for money collected by the sheriff under executions issued upon the decree of the Orphans’ Court are subscribed by the defendant, some of them in his individual capacity, and the others describe hirm as guardian, or one of the guardians of E. M. Booker. The receipt for Gladney’s' receipts is in these words; “ Rec’d of John F. Nabors, J. B. Gladney’s rec’pts for four thousand and eight dollars and thirty-four cents, and thirty-nine 37-100 dollars, in cash, •which is in full satisfaction of the balance due on the two above stated executions. • Charles Stewart, .

Guardian of E. M. Booker.”

The sum expressed in Gladney’s receipts was never paid over to the defendant, in cash, but by an arrangement between Jemison, his co-executor, and Gladney, a private debt due by Jemison to the latter, was settled by the purchasers of the plaintiff’s property, at the sheriff' ’s sale, paying that amount to Gladney. In respect to this receipt and money not paid to the defendant, it is contended, that there should have-been no recovery.

In Ainslie v. Wilson, 7 Cow. Rep. 662, one of the questions raised was, whether the payment of a debt, (discharge-able in money,) as surety or indorser, ' by conveying land, which is received at the time as payment, will support a count for money paid, laid out and expended. The judge who delivered the opinion of the court said, “ Ihave no doubt that as the conveyance of land was received in discharge of a money debt, due from the plaintiff, it is, in judgment of law, to be considered the same .thing as if the plaintiff had actually paid the money. The Murrays received it as money, or as an equivalent for money. They had the right of-electing. To the defendant it was immaterial whether the money was made in one way or the other. If an agent receives property for his principal, and there is no presumption that it has been converte into money, the action for money had and received will not lie ; but if the agent appointed to collect a money debt, should accept from the debtor in ex-tinguishment, property as money, he would not be permitted to question this form of action.” See also Clark v. Pinney, 6 Cow. Rep. 297.

In the action for money had and received, it is generally necessary to show the receipt of money; but if the parties have treated the consideration upon which the plaintiff seeks to rest the liability, as money, or a sufficient time has elapsed, so as to raise an inference that it has been converted into money, then it is said the action may be supported. In Hinkley v. Fowler, 15 Maine R. 285, it was held, that where one sells property belonging to himself and others, and takes promissory notes therefor to himself alone, payable on time, and transfers the notes for his own benefit, an action will immediately lie for money had and received. So in Pickard v. Banks, 13 East’s Rep. 20, a stockholder who had received country bank notes as money, and paid them wrongfully to the original staker, after he had lost the wager, was adjudged to be answerable to the winner, in an action for money had and received. Lord Ellenborough remarked, “ Provincial notes are certainly not money; but if the defendant received them as ten guineas in money, and all parties agreed to treat them as such at the time, he shall not now turn round and say that they were only paper and not money.” Best, C. J. said, “ the principle in all cases is, that if a thing be received as money, it may be treated and recovered as such.” ”See also, Tinslar v. May, 8 Wend. Rep. 561; Morrison v. Berkey, 7 Sergt. & R. Rep. 246; Fairbank v. Blackington, 9 Pick. Rep. 93.

We have already intimated that this action may be supported where property has been received, if it can be readily converted into money, and the defendant’s conduct affords a presumption that he has so converted it. [Hunter v. Welch, 1 Starkie’s Rep. 224; Whitewell v. Bennett, 3 B. & P. Rep. 559; Levy v. Goodson, 4 T. Rep. 687; Longchamp v. Kenny, Doug. Rep. 137; Andrew v. Robinson, 3 Camp. Rep. 199.]

In the case at bar there is no reason to doubt, that the amount for which Gladney gave his receipt was not paid in cash, previous to the institution of this action. In fact it is ¿shown that a part of it was paid in cash at the time, and for ithe residue he accepted a bill of exchange, which matured before the decree of the Orphans’ Court was reversed. Whether this bill was ever paid or not, is an inquiry immaterial to the plaintiff, for his property was sold by the sheriff, for cash, and the bill was received by the defendant and Jem;son as a substitute for the money.

In Edmonds, et al. v. Crenshaw, 14 Peters’ Rep. 166, it was said that “ one executor having received funds cannot ^exonerate himself and shift the trust to his co-executor, by paying over to him the sums received. Each executor has the right to receive the debts due to the estate, ,and discharge .the debtors, but this rule does not apply as between the executors. They stand upon equal ground, having equal rights, and the same responsibilities. They are not liable to each other, but each is liable to the cestuis que trust, to the full extent of the funds he receives.” See also, Crosse v. Smith, 7 East’s Rep. 246; 2 Sch. & Lef. Rep. 231; 1 Russ. & M. Rep. 231; 1 Younge & J. Rep. 409; 6 Watts’ Rep. 185, 250; 11 Johns. Rep. 16; 1 Blackf. Rep. 301; 3 Bibb’s R. 97.

The Lord Chancellor remarked, in Sadler v. Hobbs, 2 2 Brown’s Ch. Rep. 114, “ I take it to be clear, that when, by any act, or any agreement of the party, money gets into the hands of his companion, whether a co-trustee or a co-executor, they shall both be answerable. And such we understand to be the doctrine in equity. [See also, 1 Dall. R. 311; 2 Penn. Rep. 419; 1 Turn. & R. Rep. 360; 5 Johns. Ch. Rep. 283; Ram. on Ass. 542, 544, 547; 1 P. Wms. R. 83; 7 Ves. Rep. 186; 9 Id. 103; 11 Id. 254, 319, 333; 3 Sim. Rep. 265.] But it has been held, that an executor in trust is not answerable in equity for the receipt of his co-ex-executor, when the former has merely taken probate, permitted the other to possess the assetts, and joined in acts necessary to enable that co-executor to administer. [4 Ves. R. 196, 608.] So where a testator by his will appointed three executors, and empowered one of them to sell the moiety of a freehold estate, which the testator held in common with that executor, and declared that the money arising from such sale should be applied and. disposed of in the same manner as his personal estate. The three executors proved the will,, and the executor on whom the power of sale was conferred employed one of his co-executors to sell the land, who accordingly sold it, and paid over the money to the former. Held, that the executor who acted as an agent in selling, had no legal right to retain the price of the testator’s moiety, and was not liable, though it was misapplied by his co-executor, to whom he had paid it. [1 Russ. & M. Rep. 64; see also, Ram. on Ass. 524; 11 Ves. Rep. 335.]

Although trust money is paid to one trustee where there-are several, yet it is in many cases necessary that the receipt for it be signed by all' of them. [2 Atk. Rep. 584; 1 P. Wms. 83.] And where trustees in such case join in a receipt,. it is competent for any one of them to show, that he received no part of the money, but it was paid to his co-executor, and he joined merely for conformity. [7 Ves. Rep. 198; 11 Id. 324.] But the weight of authority tends to prove, that this rule does not hold to the full extent in favor of executors. What was said by the Lord Keeper, arguendo, in Westley v. Clarke, 1 Eden’s Rep. 356, goes to deny the distinction, and considers executors as standing in the predicament of ordinary trustees. [See also, 1 P. Wins. Rep. 241; 4 Ves. Rep. 596; 1 Eden’s Rep. 145.] But Lord Elden, has repeatedly expressed his disapprobation of the relaxation in favor of executors of the rule which distinguishes between their receipts and those of other'trustees. [5 Ves. Rep. 331; 7 Id. 197; 11 Id. 323, 333; 16 Id. 477.] In Brice v. Stokes, 11 Ves. 324, he said, “At law, where trustees join in a receipt, prima facie all are to be considered as having received .the money. But it is competent to a trustee, and if he means to exonerate himself from that inference, to show that the money acknowledged to have been received by all, was in fact received by one ; and the other joined only for conformity. In the case of executors it has been said, and well said, to be otherwise. An executor, as it is not necessary for him to join, interfering in the transaction unnecessarily, the inference is just the other way; he is to be considered as assuming a power over the fund; and therefore answerable for the application, as far it is connected with the particular transaction in which he joins. Upon considering the cases paring down that rule of late, I repeat what I have said upon a former occasion, that it is safer for executors to abide -by a general rule of that sort, than to lay down a rule trying the application of it by looking to particular circumstances, in particular cases; which will raise very different inferences in different minds.”

In Joy v. Campbell, 1 Sch. & Lef. Rep. 341, Lord Redesdale said, “the distinction appears to be this, with respect to' a mere signing, that if a receipt be given for the mere, purposes of form, then the signing will not charge the person not receiving; but if it be given under circumstances purporting that the money, though not actually received by both executors, was under the control of both, such a receipt shall charge, and the true question in all those cases seems to have been, whether the money was under the control of both executors ; if it was so considered by the person paying the money, then the joining in the receipt by the executor who did not actually receive it, amounted to a direction to pay h-is co-executor ; for it could have no other meaning; he became responsible for the application of the money, just as if he had received it. But this does not apply to what is done in the discharge of a necessary duty of the executor.” And as an example, it was added that an executor residing at one place, may remit funds to his co-executor, living at another,to pay debts there owing, without incurring a liability for its misapplication. “ He must remit to somebody, and he cannot be wrong if he remits to the person in .whom the testator himself reposed confidence.” See also, 3 Browne’s Ch. Rep. 90; Lewin on Trusts, &c. 271, 279; 1 Salk. R. 318; 3 Swans. 64; 2 Sch. & Lef. Rep. 239, 245. In Monell v. Monell, 5 Johns. Ch. Rep. 283, Chancellor Kent reviews several of the leading cases we have' cited upon this point, and say's, “it may be laid down as a principle, that if two guardians, or other trustees, join in a receipt for moneys, it is prima facie, though not absolutely conclusive, evidence that the money came to the hands of both; .that one trustee may show by satisfactory proof, that the joining in the receipt was necessary, or merely formal, and that the moneys in fact were paid to his companion; that without such satisfactory proof, he must be liable to his cestui que trust, and that if-the moneys were in fact paid to his companion, yet if they were so paid by his act, direction, or agreement, when he had it in his power to have controlled or secured the money, he is, and ought to be responsible.” [See also, 7 Johns. Ch. Rep. 22; 4 Sim. Rep. 28; 2 Story’s Eq. 520 to 524; 8 Price’s Rep. 127; 11 Sergt. & R. Rep. 66.]

■ If Jemison was not authorized to receive the money that might be collectéd under the decree of the Orphans’ Court, the assent of the defendant that it might be appropriated by him to the payment of his individual debt to Gladney, would in point of law, be the same thing as if it had been first paid to the defendant, and by him handed over to Jemison. But’ assuming as we must, from the form of the decree, that they were both equally entitled to receive the money, and we think the legal inference is irresistible, that it was appropriated by Jemison by the defendant’s consent. If it was not a matter of previous arrangement between them, the defendant certainly approved and sanctioned the agency of his co-executor, and co-guardian in the business. And this must be the conclusion upon the facts, whether, where there are several guardians, each possesses power within the sphere of their duties, to perform the trust devolved upon all, in the same manner that, executors do, or whether they are to be treated merely as trustees. It results from this view, that the defendant’s receipt is sufficient to charge him in this action, unless he shows a right to retain the money.

In Roebuck v. Dupuy, 7 Ala. Rep. 484, it was held, that an action for money had and received, will lie to recover back money paid upon a judgment which has been since reversed, unless the retention of the money by the defendant, is consistent with equity and good conscience. But the equitable right to retain, must grow out of, or be connected with, the case in which the judgment is vacated; if the defendant has another cause of action, in which he will be entitled to recover as much as he retains, he must become the actor in a suit, and have his damages ascertained by a judgment; unless such independent cause of action w'ould be available as a set off. 'We there cited with approbation, Green v. Stone, 1 H. & Johns. Rep. 405, in which it was said, that “a judgment reversed becomes mere waste paper, and the rights of the party, immediately on the reversal, are restored to the same situation in which they were prior to the pronouncing of the judgment so reversed.”

My brethren are of opinion that it is competent for the defendant to resist a recovery, by showing, that notwithstanding the reversal of the decree of the Orphans’ Court, the amounts which it adjudged to Jemison and himself, were justly due them from the plaintiff and his co-executor. But I am inclined to think, that upon the reversal of the decree, the entire settlement made by the Orphans’ Court was vacated, arid of no effect; that that court, or a court of Chancery, was only competent to adjust the matters of account anew; consequently the Circuit Court could not investigate them, and determine that the decree was rendered for the proper amount, so as to give to the defendant the right to retain the money collected thereon. [See Gause and wife v. Hughes, 9 Porter, 552; Leavens v. Butler and wife, 8 Ib. 380.] In stating, in general terms, as it is usually laid down, that the defendant may resort to any equitable or conscientious defence to resist the recovery of money paid him on a judgment which has been since reversed, I cannot think that it is competent to set up as a defenc e, matters exclusively cognizable in equity, or other court of a peculiar and extraordinary jurisdiction. It is laid down in all the elementary books, that the action of indebitatus assumpsit is in its nature “ equitable ;” that when a party has received money which ex cequo et bono he ought not to retain, it may be recover*! by the person entitled to it, in an action for money had and received. Yet I imagine it would not be pretended that the plaintiff could be permitted to recover in any form of action upon a cause purely of equitable cognizance ; nor can I perceive how a defence of that character could be made available at law.

According to the view taken by my brethren, of the law upon the point just noticed, the account stated by Saunders, the auditor appointed by the Orphans’ Court, would not in itself be evidence, unless it was in some manner assented to, or approved by them; but so far as it is supported by the testimony of witnesses, or duly established vouchers, it might be laid before the jury. The exception to its admission is not sufficiently precise and explicit to enable us to affirm that the Circuit Court erred in that respect.

It is contended for the plaintiff in error, that Jemison was a competent witness for him, and should have been permitted to give evidence to the jury. In Massey v. Rogan, 6 Ala. Rep. 647, we said, to make a witness incompetent upon the ground of interest, it must be shown that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be evidence, either for or against him, in some other action. It must be a present, certain, and vested interest, and not uncertain, remote or contingent.

To disqualify a witness for the reason that the verdict will be evidence against him, it is not enough, that it is admissible against a third person, a recovery against whom would be evidence against the witness. Thus in an action against a sheriff for a false return of nulla bona, the servant of the deputy, who had charge of certain goods levied on, but who let them go, was held competent for the sheriff, though 'he would not be in an action by the sheriff over against the deputy ; and though the record in the action then pending would be evidence against the deputy, and thus over against the servant. [1 Carr. & P. Rep. 156.] So if the witness be interested as vendor, the verdict must be evidence against him as immediate vendor ; not first against another person, who may recover over against'the witness as a remote vendor. [1 M. & Payne’s Rep. 653; 2 N. & McC. Rep. 153; 2 Phll. Ev. C. & H.’s Notes, 81, et post.]

In an action against a sheriff for the default of his deputy, the question Avas whether the execution had been delivered to the sheriff in due season; the plaintiff offered the attorney who issued the execution to prove the delivery. The defendant objected, that the attorney must answer to the plaintiff for his negligence if the execution was not delivered in due time; but the court held that his interest was too contingent and remote. [11 Mass. Rep. 242; see also, 12 Mass. R. 20.] In a suit against an agent to recover back money paid him, on the ground that nothing Avas due to the principal, thé latter is a competent witness for the defendant, who alledged a payment to the principal withouf notice. [10 Serg. & R. Rep. 442.] One co-heir and tenant in common, is a witness for or against another, in ejectment. [7 Serg. & R. Rep. 192.] A witness is not incompetent for the plaintiff in ejectment, merely because he claims other land depending on the same location and boundary, which the plaintiff is seeking to establish. [1 Bibb’s Rep. 105; 2 H. & Mc H. Rep. 473; 2 Rand. Rep. 87; 1 Dana’s Rep. 179.]

In a motion against a constable and his sureties'for failing to return a fieri facias, an obligor in the bond was held to be a competent witness to prove that the bond had not been acknoAvledged before a constable, and therefore not a statute bond, Avhieh had the force and effect of a judgment. The court thought the witness had no interest in the event of the suit, and no testimony which he could give would impair his liability on the bond. [2 Dana’s Rep. 97.] So in an action on a book account, the defendant introduced' a witness who testified, that upon the sale of a horse, by the witness to the plaintiff, it was agreed between them that a portion of the'price should be applied in part payment of this account, and that the defendant should pay the amount of such portion to the witness; and that the defendant did pay this amount to the witness, in pursuance of the agreement. Held, ‘that if the plaintiff recovered, the verdict could not be given. in evidence, in an action against the witness, in favor of the defendant. The verdict would not show whether the witness had accounted with the plaintiff for the money received by him or not, but would be res inter alios acta, and the witness consequently competent to give evidence, [16 Pick. R. 560.] In trespass, quare clausum fregit against a mortgagor, the mortgagee was held competent for the defendant on a plea of liberum tenementum, on the ground doubtless, that the verdict could not' affect the witness. [5 Tyrw. R. 143; see also, 2 Fairf. Rep. 341, 377.] A joint debtor not sued, it is said, is a competent witness for the plaintiff, unless he is called to prove the joint liability; and it has -been held, that he is a competent witness for the defendant, but the decisions upon the latter point are by no means uniform. [2 Phil. Ev. O. & H. Notes, 82, 110, 112, 113, 118, 133; 2 Id. 1520 to 1522.]

The liabily of a witness to a like action, or standing in the same predicament with the party who calls him, if tho verdict cannot be given in evidence for or against him, is an interest in the question only, apd does not exclude him. Thus it has been held that One underwriter, may be a witness for another underwriter upon the same policy, [3 T. Rep. 27] ; or one seaman for another, whose claim for wages is resisted on grounds equally affecting all the crew ; [1 Mason’s Rep. 104; 3 Johns. Rep. 518;] or one freeholder for another claiming land under the same title, or by the same lines and corners; [2 Rand. Rep. 87; 5 Wheat. Rep. 423;] or one devisee for another claiming under the same will; [6 Cow. R. 248;] or one trespasser for his co-trespasser; [1 T. Rep. 301; 5 B. & C. Rep. 387; 3 C. & P. Rep. 172; 12 Martin’s Rep. 289;] or a creditor for his debtor ; [6 Esp. Rep. 34; 5 B. & Ad. Rep. 439;] or a tenant by the curtesy, or tenant in dower, for the heir at law, in a suit concerning the title; [8 Wen. Rep. 426; 1 B. & A. Rep. 439; Greenl. Ev. 434-8-9, 440-1-7-9.]

It is said that if a witness erroneously thinks that he is interested, he may be informed by the court that he is not, and required to give evidence. [Greenl. Ev. 433.] And mere prejudice, though he states it, and asks to be excused from testifying," will not authorize the exclusion of a witness. (6 Watts’ Rep. 507.)

In the case at bar, perhaps a judgment against the defendant might be given in evidence in an action by the latter against Jemison, to show that he'had paid the money under legal coercion, yet it would not establish the justness of the recovery, or its amount. In many of the cases cited the right of action against the witness was consequential to the recovery against the party for whom he was called to testify, and to show that fact, the judgment would be admissible in the suit which might be subsequently brought against the witness. But in these as in the case before us, the judgment concluded no question either for or against the witness. A recovery against the defendant does not necessarily give him a right of action against Jemison, and will not relieve the defendant in a suit against Jemison, from making out his case by proof aliunde.

It cannot be assumed that Jemison would be liable to the defendant should the plaintiff succeed in this action. For any thing appearing to the contrary, the defendant and Jemison may have adjusted the matter between themselves, so that the latter would in no event be liable to the former. But if the plaintiff should fail to recover, could he not still proceed against Jemison notwithstanding the verdict and judgment in favor of the defendant, without being prejudiced in such action by that judgment ? If this be so, it is too much to assume as a legal conclusion, that Jemison was interested for the plaintiff’s success. In every view, we think that the interest of Jemison, so far as shown by the record before us, was in the question merely, and th erefore it cannot be said he was disqualified from testifying for-the defendant. The other questions raised upon the record, are either embraced by those considered, or will not, if what has been said, is observed, arise upon a future trial.

‘ We have but to add, that the judgment of the Circuit Court is reversed, and the cause remanded.