Carville ex rel. Wamack v. Reynolds , 9 Ala. 969 ( 1846 )

GOLDTHWAITE, J.

1. The point made with respect to the statute of limitations of three years, controlling this suit, is concluded by the previous decisions made in suits on witnesses certificates. In Hill v. White, 1 Ala. Rep. N. S. 576, we say an action like this is not similar to a demand for an unliquidated account. It is more like an action on a specialty or promissory note, as the demand is ascertained and fixed by law. To the same effect is Findlay v. Wyzer, 1 Stewart, 23, where it was held the party was entitled to sue on each certificate, when he had more than one. These decisions are entirely inconsistent with the notion that a demand for attendance thus ascertained, as in the return of an open account. On this ground we think the court erred.

2. And such is our opinion as to the qualification of the first charge. The case of Findlay v. Wyzer, before cited, shews that such certificates may be assigned, so that the assignee may maintain the action in the name of the witness for his use, and having the right to do so, the amount to be recovered does not depend on the sum paid for the certificate.

3. On the other and perhaps more important point, we think the court properly refused to give the charge requested by the plaintiff. Although the statute ascertains the compensation of a witness and the mode by which his attendance shall be proved, it does not change the nature of the contract. It is after all, compensation to the witness for attending the court at the instance of the party, and if before the service is rendered, the witness undertakes to perform it gratuitously, there is no pretence to say he is entitled to recover for this, any more than for other gratuitous services. It may be, but for this undertaking, the party would never have subpoenaed him, or having done so would sooner have discharged him. We were inclined at first to doubt if the certificate was not conclusive of the right of the witness to recover, but reflection has satisfied us it; is only prima facie evidence when suit is brought upon it. The words of the statute are, “it shall be deemed sufficient evidence for the plaintiff;” (Dig. 602, § 16;) but this does not seem to indicate that the certificate may not be controverted. It cannot, we think, be questioned the party is entitled to some mode by which a false statement may be corrected, and its consequences obviated, and there is none so convenient or effectual, as allowing it to be done when suit is brought upon it. It is unnecessary now to inquire, how the false statement could be reached, when carried into a bill of costs, but it is presumed a motion for re-taxation would be effectual in most cases, although the case of Smith v. Donaldson, 3 S. & P. 393, seems to hold a different view; but see Braley v. Hodges, 3 Porter, 335, overruling the case last cited.

For the error we have ascertained, the judgment is reversed and the cause remanded.