Poe v. Dorrah , 20 Ala. 288 ( 1852 )

■DARGAN, C. J.

We will consider the questions raised in tbis case in the order in wbicb they were made at the bar, First, was Warbington a competent witness for the plaintiff? The rule is now recognized by all courts professing .to be governed by the common law, that the interest wbicb will render a witness incompetent to testify, must be some legal, ¡certain, and immediate interest, in the result of the suit itself, or in the record thereof as an instrument of evidence .to support bis own claims, or to protect bim from an admitted bability. Greenl. Ev. Vol. 1, § 386; Moore and Jones Adm. v. Henderson, 18 Ala. Rep. 232. If the interest be not of tbis-char-acter, but, on the contrary, be remote or contingent, and not certain and immediate, the witness is competent to .testify, and such remote or contingent interest will go to bis credibility, but not to bis competency. Tbis general rule all .admit, and it is in the application of it to particular cases, that the conflict of opinion in the judgment of courts is to be found. Tbis conflict, however, does not impair the rule, and we must test each and_ every case by it.

Tbe facts of this case show that Warbington was liable to the plaintiff as tbe security of Parkenson, for tbe same debt for which tbe sheriff is sought to be charged for bis neglect. But tbe judgment that was recovered against -the sheriff, for bis neglect to make tbe money on tbe -execution against Parkenson, within itself could not operate as a satisfaction -or discharge of tbe liability of tbe witness. Something -else must be done besides tbe mere recovery. It must be paid, and the defendant in tbe execution, under our decisions, must insist upon such payment, as a satisfaction, thus recognizing it as a, payment made for bis benefit and at bis request. Rutland’s Adm. v. Pippin, 7 Ala. Rep. 419; Roundtree v. Weaver, 8 Ala. Rep. 314; 13 Ala. Rep. 357; Mooney and Black v. Parker, 18 Ala. Rep. 708. These authorities bold, that, if,a sheriff shall pay tbe amount of an execution, to discharge himself from bability for neglect in -not making the money, the defendant may avail himself of such payment to have tbe. judgment satisfied, but be thereby becomes liable to tbe ¡sheriff for money paid for bis use. Whether, then, tbe payment by-tbe sheriff of tbe judgment against bim, for bis omission to make tbe money, would ever be a satisfaction of tbe judgment against the original defendant, does not depend exclusively uponthe mere payment by tbe sheriff of the judgment against hiih, but upon the further fact, whether the defendant in execution will so consider it, and thereby adopt it as his own; 'for if he does not, the judgment against him remaining unsatisfied may be enforced.

To this extent we have been driven by the decisions of our predecessors, and whether right or wrong, we must abide by the rule they have thus established. Perhaps it would have been better, to have held that the payment by a sheriff to discharge himself from liability, for failing to make the money on an execution, could not be invoked by the defendant in the execution, as a satisfaction of the judgment against him. But the law is settled otherwise. Admitting, then, that the defendant in execution may insist on such payment as a satisfaction, and thus render himself liable to the sheriff for money paid, will he do it ? That is uncertain, it is contingent. Neither, therefore, the rendition of judgment against the sheriff, nor his subsequent payment of it, within themselves, and without more, would discharge the witness from his liability; it requires another voluntary act to be done by the defendant in execution, which he may or may not do, at his election. Whether, therefore, the liability of the witness would ever be discharged by the proceedings against the sheriff, depends on a contingency, and consequently he was legally competent to testify.

It may, however, be said, that the witness himself might insist upon the payment made by the sheriff, as a satisfaction, of the judgment which he had become liable to pay by reason of the forfeiture of the bond on which he was security. To this we should answer, that if he could, he would thereby adopt such payment as his own, and become immediately liable to the sheriff for money paid for his use. His interest, therefore, even in that point of view, would be balanced. We are not, however, to be understood as deciding, that a security upon a forthcoming bond can adopt the payment made by a sheriff in discharge of his liability for neglect, and thus have the judgment against the original defendant satisfied. All we intend to say is, if that could be allowed, under the decisions we have referred to, he would be considered as adopting for bis own benefit the payment by the sheriff, and therefore would be responsible to him for money paid. In no point of view can we see that the witness was incompetent from interest.

2. In regard to the admission of the secondary evidence of the contents of the execution, the court did not err. The execution was returned to the clerk’s office before the search was made for it; and it was proved that diligent search was made for it, both by the clerk, who is the keeper of the records, and by the plaintiff’s attorney. The presumption is that it was then lost, and of course this presumption would continue, until there was some evidence that it had been found since the search was made. The cases of Jones v. Scott, 2 Ala. 59, and Sturdevant v. Graves, 5 Ala. Rep. show that the predicate for letting in the secondary proof was entirely sufficient.

3. In reference to the instructions prayed by the defendant, it is enough to say, that they were properly rejected. A plaintiff in an execution surely has the right to order his own property to be released, if the sheriff levies upon it as the property of the defendant. Nor can this discharge the sheriff from his liability, for neglect in not making the money out of property which in fact belongs to the defendant. Nor can the sheriff claim to be exempt from liability, because the plaintiff releases a levy on property claimed by a third person, and who interposes his claim to try the right of property. The plaintiff may know the claim is just, or be unwilling to enter into a controversy about it. He has the right to release a levy so made, but the exercise of this right within itself cannot absolve the sheriff from liability 'for his own neglect in not making the money, especially when the liability by the sheriff had been incurred long before such levy was made.

We can perceive no error in the record, and the judgment must be affirmed.