Babcock v. Huntington , 9 Ala. 869 ( 1846 )

ORMOND, J.

Our statutes authorize the taking of depositions as a mode of adducing testimony, but there is no statute, or rule of court prescribing the mode of transportation, when the deposition is taken at a distant place. As it would be exceedingly inconvenient, and expensive, to send a special messenger, the mail has been adopted as a proper mode off conveyance, and when the package bears the post mark of the U. S. mail, and no marks of violence appear on the envelope, our practice has been to consider it as prima facie evidence, thatlt was in the condition in which it came from the hanps of the commissioner.

In the case of Innerarity v. Mims, 1 Ala. 665, the question was presented as to the proper mode of bringing a deposition to the notice of the court, taken beyond the limits of the U. States. It was there held, that it would be sufficient for the commissioner to certify upon the deposition, that he had placed it on board some vessel, naming it, destined to some place in the United States, or in some post office, to be sent by mail, to some post office in the U. States, and if it came to hand post-marked accordingly, the presumption, in the absence of proof to the contrary, would be, that the statement was true.

Iri' this case, the post-master in Texas, has certified that he received it from the commissioner. It bears the post-mark of his office, and that of the post-office at New-Orleans, and arrives according to its direction at the post-office in Cahawba, without any marks of violence, or any circumstance attending it, calculated to awaken suspicion of unfair dealing. In our opinion, this is sufficient evidence, prima facie at least, that the deposition has been fairly transmitted. The evidence of its fairness is such, as would be acted on without doubt, in any of the ordinary transactions of life, and we can perceive no reason, in the absence of a positive regulation requiring the observance of particular forms, why it should not also be acted on in courts, of justice. In our opinion, the mode of certifying the deposition in this case, is quite as satisfactory as the mode indicated in the case referred to.

We will take notice of the usual mode of intercourse between this and other countries, and if it. is by vessels, the presumption is, that the post-master of the foreign country, places it on ship board, and on the arrival of the ship at its place of destination, it will by the proper officer be again put in the post-office, which will be indicated by the post-mark at that place.

That this letter was designed to be transported in part by sea, is indicated by the word “ ship,” marked upon it; and we judicially know, that from Texas to New-Orleans, the usual route is by water. (See the case already referred to, 1 Ala. 665.)

The objection to the witness Miller, rests upon the ground of interest. The facts that he deposed to, were, that he had purchased the slave in question from the plaintiff, and had paid the principal part of the purchase money, when he and the plaintiff agreed to rescind, and did rescind the contract, after which, and until he left the country, he hired the negro from the plaintiff. After this, the negro was sold under execution against him, and purchased by the defendant. He is supposed to be interested, because, if the plaintiff does not succeed, he will not be able to recover back the purchase money he had paid the plaintiff before the rescisión of the contract.

The answer to this, is, first, that it does not appear that the plaintiff has not paid him already ; such would be the natural presumption, in the absence of proof. But secondly, if he still owes him the money, he cannot avoid the payment of it, because the slave has been sold for the payment of Miller’s "debts. Surely, it would be no answer to Miller, sueing for his debt, that a stranger had seized the property of Huntington, and appropriated it to the payment of a debt Miller owed a third person. If, as the argument supposes, he still owes Miller the four hundred dollars, he cannot avoid the payment of it, by the payment of a debt Miller owes another, either voluntarily or involuntarily, by a trespass committed on him.

" It might, indeed, perhaps, well be doubted, whether he had not an interest directly adverse to the party calling him. The effect was to discharge a debt, which he owed, by the sale of the slave; and if this sale is declared invalid, it might subject him, to an action, at the suit of the purchaser, for the recovery of the money, as so much paid to his use. Be this as it may, he certainly had no legal interest in swearing in favor of the plaintiff, and if from his condition, he may be presumed to have a bias in favor of either, it would go to his credit.

The objection to the testimony of Bowden, is, that it relates to the declarations of Miller. The declarations, here referred to, is the conversation, which took place at the time of the rescisión of the contract. This is, properly speaking, a fact. It is difficult to imagine, how the rescisión could be established, but by proving what the parties said, and did, when it took place, and as it regards the hiring of the slave by Miller, the witness says he was the agent of the plaintiff. If however they are considered as the mere declarations of Miller, being declarations in regard to his title to property then in his possession, and made against his interest, they would be admissible. [Willes v. Farley, 3 Carr. & P. 395; Garey v. Frost & Dickinson, 5 Ala. 640; Bliss v. Winston, 1 Ala. 344, and many subsequent cases]

We need not enter upen the enquiry, whether it was admissible to prove, that the bill of sale though absolute in its terms, was intended to be conditional, and that the title was to remain in the vendor, until the purchase money was paid, because it seems to us wholly immaterial. Whether the sale was absolute, or conditional, if it was cancelled before the lien of the execution attached, under which the defendant claims as purchaser, he has no interest in the question, as in either event he could not derive title through the execution.

This transaction has certainly a very suspicious appearance ; but with the bona jides of the matter, we have no concern ; that was exclusively for the consideration of the jury. If the contract between Miller ‘ and the plaintiff was in fact rescinded, the title to the slave immediately revested in the plaintiff; and if he was then and still remains indebted to Miller, for the purchase money which had been paid previous to the rescission of the contract, that could not affect his title to the slave, or subject it to the payment of Miller’s debts, unless whilst he owned it, a lien had been acquired upon it, a question upon which the jury have passed.

This was the law, as given by the court to the jury, and its judgment must therefore be affirmed.