Alexander v. Trask , 20 Ala. 805 ( 1852 )

CHILTON, J.

This was an action of debt brought by the defendants in error, upon a claim bond given under the statute for the trial of the right of property.

One of the pleas put in issue the factum of the bond, and the sheriff was introduced by the plaintiffs below to prove that the bond was executed by the defendants. He was objected to as incompetent, by reason of interest, but allowed to testify without a release; and this constitutes the ground of the first exception.

The general rule undoubtedly is, that a witness who has a direct interest in the event of the suit, cannot be allowed to testify. But this rule is subject to several exceptions, which public policy, convenience and necessity have engrafted upon it, and which are as well established as the rule itself, although not always so easy of application. Among these exceptions are classed agents, factors, brokers, &c. It is supposed by the counsel for the defendants in error, that the sheriff, as respects his ministerial official acts, falls within the exception to the general rule which obtains as applicable to agents; but we are unable to perceive upon what principle he may thus be classed. The same considerations of public convenience and necessity, which apply to agents employed in the transaction of ordinary business, have no application to public officers, who are required to furnish written memorials of their official transactions, and which are prima facie evidence, and in some cases, conclusive evidence of those acts.

The cases of Beane v. Pearsall, 12 Ala. Rep. 592, and the Governor, Use, &c. v. Gee, 19 ib. 199, were cases of agency, wbicb clearly fell witbin the exception. In the other case cited by the counsel for the defendant in error of Moore & Jones v. Henderson, 18 Ala. Rep. 332, we held, in an action against an attorney to recover upon, his receipt for notes for collection, the maker of one of the notes was an incompetent witness to prove the payment of the money to the attorney. And we said in that case, that where, in one event, the liability of the witness will be lessened, he is not a competent witness for the party who seeks by h:s evidence to produce that event. See the cases there cited on page 235.

So in McGrew & Beck v. The Governor, 19 Ala. Rep. 89, we held, that a constable was an incompetent witness to prove that he had paid money to a justice of the peace, which he had collected on execution, in a suit by the plaintiff in the execution against such justice for the money.

That the sheriff in this case has an interest in fixing a liability upon the defendants on the claim bond, needs no argument ; for although a judgment exonerating the defendants might not be evidence against him, when sued for failing to take a bond, yet the judgment fixing the liability of the obli-gors upon the bond, gives to the plaintiff below all that he can claim, and thus completely saves the sheriff, who is offered to bring about this result by his own testimony.

His position in regard to the cause cannot be distinguished from that of a clerk, who has received a-writ of error bond, the genuineness of which is called in question, in a proceeding in equity to be relieved from a summary judgment rendered upon it against the obligors. It has been twice held, that such is the direct interest which the clerk has, that the Chancery Court will not proceed to a decree, without he is made a party. Brooks v. Harrison, 2 Ala. Rep. 209; Gibbs & Labuzan v. Frost & Dickerson, ib. 720-730.

But if we concede that the sheriff is the agent of the-plaintiff below to take the claim bond, and subject to the ordinary exception to the general rule applicable to agents; ■ we should still hold him incompetent, upon the ground of interest. For the exception does not extend, to cases where á verdict fpr the principal would place the agent in a state of-security, against .any action which the principal might bring against him, the agent being directly interested in fixing a liability on the defendant, thus securing himself from future amenability. 1 G-reenl. Ev. § 896. And this principle, it is said, is applicable to all cases, where the testimony of the witness adduced by the plaintiff, would discharge him from the plaintiff’s demand, by establishing it against the defendant. 1 Grreenl. Ev. (3 Ed.) note 4 to page 543. So, in an action brought by A. against B., for the board of C., the latter was held an incompetent witness to prove the claim. Emerton v. Andrews, 4 Mass. Rep. 653; Hodson v. Marshall, 7 C. & P. 16.

We are therefore of opinion, that both upon principle and authority, the sheriff was incompetent to fix a liability upon the defendants below, thus rendering himself secure against any action which might otherwise be brought against him. If the plaintiffs below desire the testimony of this witness, they, can avail themselves of it, by executing a release; oth-wise, he is incompetent, as he is liable over, either on an implied agreement, or on the ground of fraud. Baxter v. Graham, 5 Watts, 418; Miller v. Garvin’s Ex’r, 12 Ser. & R. 104.

2. This being a common law action upon the bond, no return of ‘ ‘ forfeiture” was necessary to its maintenance. Such endorsement is only required, to enable the payee or obligee to avail himself of the summary remedy conferred by the statute.

3. Without deciding whether, under the circumstances presented in the bill of exceptions, it was incumbent on the plaintiff to have made a demand, through the sheriff, of the property which had been condemned, -we are satisfied the court did not err in the instruction given to the jury, that the demand proved to have been made of the defendant’s general agent, he being absent from the county, was sufficient. If the party to the bond rendered a personal demand upon him impracticable, by his absence, the best the sheriff could do was, to make it of the person having the general charge and agency of his business.

4. As to the preliminary proof, constituting the predicate for secondary evidence of the execution and record of condemnation of the property in the claim case, it is unnecessary for us to say more, than that when the better evidence is shown to be lost or destroyed, secondary evidence is admissible to prove it. 5 Kinney’s Com. 106; 22 Maine, 442. Doubtless, the loss of the better evidence can be sufficiently shown upon another trial, if it be lost.

Let the judgment be reversed, and the cause remanded.