Stewart v. Hood , 10 Ala. 600 ( 1846 )

GOLDTHWAITE, J.

The question with respect to the form of the judgment for costs is not a material one, so far as the reversal of the judgment is connected with it, inasmuch as it would be considered amendable if incorrectly entered. But the point is one of considerable importance, and may as well be decided now as at another time. At common law, no costs were due, either to the plaintiff or defendant. [Tidd’s Prac. 945.] The English statute giving costs has never been construed to warrant them against administrators when they necessarily sue in their representative character, though it is said, if they sue on a contract made with them, in that capacity, or for a tort to the assets, after the death, they may be thus charged, as in these cases the action could have been sustained in their own right. [Tidd’s Prac. 978.] Our statute merely declares, that in all civil actions, the party in whose favor judgment shall be given, shall be entitled to full costs, except where it is otherwise provided by law. [Dig. 316, § 20.] It is evident this does not give a more liberal mode of taxation than prevails in England, and without now undertaking to decide the point, it would seem that whenever an administrator may properly sue, in his representative character, the costs in all cases should follow the judgment; and as that is, that the defendant shall go hence, if the suit of the administrator, the costs to be recovered are in that capacity only. Here the party sues in his representative character, on a contract made with a previous representative of the estate. It is not contended the suit was improperly brought, and beyond that it may be said, it was not necessarily brought, inasmuch as no other title is stated than the succession to the administration. Under these circumstances we think, the judgment should have been entered de bonis intestatis only.

2. We cannot say the declarations of Sims, showing the slave was unsound during his lifetime, were irrelevant or improper to go to the jury. It was necessary to fix a period when the unsoundness commenced, or was admitted before a knowledge of that fact, as then existing, could be charged on Gordon who subsequently sold the slave. The admission seems*to fall within the principle, that any owner is competent to admit the condition of property possessed by himself, and here the inquiry as to the soundness of the slave was involved, whether the defence rested on a warranty, ox on the supposed fraud.

3. The evidence on which the cause went to the jury, was not so certain and definite in its nature, or the conclusions to be drawn from it, as to warrant the court, as a matter of law, in charging the jury, that it made out a case, either for the plaintiff or for the defendants. Under this condition of the proof, the conclusions of fact were to be ascertained by the jury, and the charge asked was correctly refused.

4. There are two aspects in which the supposed interest of Mrs. Gordon may be considered. 1. Whether her husband’s estate might be liable on the supposed warranty, or fraud, in the sale of the slave. 2. Whether the supposed interest she has as a distributee of her husband’s estate, to increase the distributable fund of Sims’ estate — that being insolvent, and indebted to her husband’s — is not too remote and contingent to disqualify her. In the first instance, it is clear, when called as a witness for the defendants, she would testify against her interest, and therefore it creates no objection. If the party to a suit will call an interested witness to depose in his' favor, he certainly would not afterwards be allowed to discredit the witness; and the same rule, we think, would prevent the defendants here from asserting the supposed interest of the witness in the result of the suit, as an objection to the cross-examination, if the objection was made in open court. The question then comes to this: can the adverse party, who has cross-examined, use the deposition taken at the instance of the other party ? We do not well see what reasonable objection there is to such a course. If the witness was examined in open court, it is very certain we should never hear the objection of interest from the party offering him, and there certainly is no good to result from a practice which will permit a party first to ascertain by actual examination, what a witness will swear, and then admit or exclude him at pleasure.

In chancery suits it has been held, that the complainant may not make out his case from the cross examination of the defendant’s witnesses. [Smith v. Biggs, 5 Sim. 391.] The reason for this rule in equity is not very obvious, and is stated with some dissatisfaction, by a respectable writer on evidence. [Gresley, 287.] At law it has several times been ruled, that the opposite party may use the deposition when he has been cited to attend the taking, and has cross-examined. [Yeaton v. Fry, 3 Cranch, 335; Rogers v. Barnett, 4 Bibb, 480.] Whether exceptions may not exist -to the rule, is a matter which we need not now examine, as there seems to be no circumstances intervening here, which were different when the examination was had, from what they were when the deposition was offered to be used.

For the error in excluding this deposition, the judgment' must be reversed, and the cause remanded.