Love v. Dargan , 21 Ala. 583 ( 1852 )

CHILTON, J.

— This was an action by the defendant in error against the plaintiff in error in the Circuit Court of Autauga, to recover money alleged to have been paid as his security, upon a liability as deputy marshal to one Robert L. Crawford, who was the marshal of the United States for the Southern District of the State of Alabama.

On the trial in the court below, Dargan offered the deposition of Mr. Crawford, the marshal, to prove that he paid to said marshal the sum of $1600 in discharge of his liability on Love's bond, and that the liability then actually existing, by reason of Love’s failure to pay over certain monej^s collected by him as deputy, amounted to $2200, or thereabout.

Crawford was objected to as interested in the result of this suit, but the objection was overruled, and his deposition allowed to be read as evidence. This is the only point presented for revision. The cases cited by the counsel for the plaintiff in error sbow that, the assignor of a chose in action is an incompetent witness for the assignee. This is certainly correct. But we think it quite clear Dargan cannot be regarded in the light of an assignee of a chose in action. There is no pretence that Crawford practiced upon him any fraud, and he voluntarily paid a gross sum upon a compromise of his liability upon Love’s bond. Now, whether the amount actually due from Love was more or less than the sum paid by Dargan, yet as he voluntarily paid it upon a compromise in consideration of a complete discharge, it is too clear to admit of any doubt that he has no recourse on Crawford. Consequently the latter is wholly unaffected by this judgment, and is a competent witness.

But if Crawford had been incompetent to prove Love’s default, he was certainly competent to prove Dargan’s payment to him; for this was against his interest, if he had any, and the objection going to the whole deposition, was for this reason properly overruled. As to Crawford’s competency, see McNeill v. Sanford, 3 B. Monroe, 11; 6 Pick. Rep., 419; 10 Leigh’s Rep., 155.

Let the judgment be affirmed.

Dargan, O. J. being a party to the suit, did not sit in this case.