Ware v. Jordan , 21 Ala. 837 ( 1852 )

PARSONS, J.

— We think it is not material whether Bennett Ware was a competent witness or not. Two of the defendants below, E. H. Avery and R. H. Ware, here complain that, as to them, there was error in the Chancellor’s decree. There is no question but that the assignment to Mr. Chilton, for his own benefit and the benefit of E. El. Avery and R. EC. Ware, was supported by a good consideration, and bona fide, as far as Mr. Chilton is concerned. If there is any consideration for the assignment, beyond the extent’ of Mr. Chilton’s interest in it, that consideration consists of the judgment which Bennett Ware and R. EC. Ware confessed in favor of Avery, and of the judgment which Bennett Ware confessed in favor of R. H. Ware. The bill does not controvert the fact of the assignment, or of the two judgments; but it states, that the parties intended thereby to defraud the creditors of Bennett Ware, of whom the complainant is one. Avery and R. EC. Ware, by their answers, expressly and fully deny this allegation of the complainant. They state, that their judgments were confessed, by Bennett Ware and R. EC. Ware in the one case, and by Bennett Ware in the other, upon actual debts. These answers, being directly responsive to what was charged by the complainant, must, according to the general rule, be taken as evidence of the facts which they aver. As the judgments were confessed, they are not sufficient evidence of the debts; but we think the answers are, Smith et al. v. Rogers & Sons, 1 Stew. & P. 317. As the indebtedness of Bennett Ware to Mr. Chilton and to Avery and R. EC. Ware constituted a full consideration for the assignment, we cannot see, upon the bills, answers and evidence, why it should not have been sustained entirely.

The amended and supplemental bill states the relations between the two Wares, and between them and Avery, and the embarrassed circumstances of the two Wares, as signs of fraud. These are admitted by the answers; but it cannot be contended that they can prevail over positive evidence, sucb as we think tbe answers are. It is stated in tbe bills, that R. H. Ware was young, and lived with bis father, &c. But we tbink that bis answer is reasonably satisfactory upon these points. Tbe bills state other circumstances of actual fraud, among tbe two Wares and Avery; but they are denied, and are not proved.

Let tbe decree be reversed, so far as it is inconsistent with this opinion, and tbe cause remanded.

Note. — A rehearing was granted in this case, and tbe following opinion was afterwards delivered:

PARSONS, J.

— My first opinion was, that tbe answers of Avery and R. H. Ware were responsive, and therefore evidence of tbe debts upon which tbe judgments were confessed by Bennett Ware; but my final opinion is, that they were not responsive in respect of those debts, but in avoidance as to them, and that tbe burthen of proving them by competent evidence was upon Avery and R. H. Ware.

Tbe Chief Justice and myself sit alone in this case; but be does not concur in my present opinion: be thinks my first opinion was right. Upon this division of the court, tbe decree of the Chancellor is affirmed; because tbe Chief Justice fully concurs in the next branch of this opinion.

The next question relates to the competency of Bennett Ware, who was a co-defendant, as a witness, to prove the debts upon which the judgments were confessed. This question, in effect, was raised for the decision of this court, in Borland v. Walker et al. 7 Ala. 269; but it was not decided, because it was found to be unnecessary to do so. The counsel for the plaintiffs in error have referred us to various other decisions of this court; but I do not think they are in'point. At law, it is settled that, if a witness would be liable in one event to the costs of the action, then, without a release, which will annul his interest in the event, he will not be admissible as a witness on the side of the party in whose favor he is interested. 1 Greenleaf on Evidence §§ 401, 402, and authorities there cited. It may, I think, be collected from the cases generally, that a witness, whether at law or in equity, who is under a direct liability for costs, in one event of the cause, is not competent on the side of his interest.

The case of Eade v. Lingood, 1 Atk. 204, is in point. A bill was brought against Thomas Lingood, charging a fraud against him, in pretending to have bought a copy-hold estate with the money of his daughters, when it was in fact his own money. His daughters were made defendants in the cause, in order to reconvey the copy-hold to their father’s assignees in bankruptcy. The counsel for the daughters, in excuse of their costs, offered to read the deposition of the defendant, Thomas Lingood, to show that he had led them into the mistake, by informing them that the purchase was made with their money. Lord Hardwicke refused to let Thomas Lin-good’s deposition be read, “because, where one defendant is charged by the bill with a fraud, his deposition cannot be read for another defendant, as it will be an advantage to himself, and may tend to excuse him with regard to his own costs.”

In Barret v. Gore et al. 3 Atk. 401, the bill was filed against Gore for the specific performance of an agreement between Barret and Gore, which was drawn by Humfreville, as an attorney, and had been deposited with him by the parties. Humfreville subsequently refused to give Barret a copy of the agreement, alleging that his fees had not been paid, &c.; but in breach of his trust, delivered it up to Gore. For this, Humfreville was made a co-defendant to the bill. Gore, at the hearing, offered to read the deposition of Humfreville, to prove it a conditional agreement only, and for other purposes. But Lord Hardwicke held, that, if a person would act in such manner as to make himself a proper party to the cause, and liable prima facie for the costs, though he was the only person present at the agreement, yet the rule must prevail against his deposition’s being read as evidence; and his I^ordship determined accordingly.

In the present case, it is not necessary to go so far. Eor the purpose of this case, the rule may be laid down more guardedly' — that a co-defendant, who is individually, or with others, directly liable for costs in the cause, is not competent as a witness, to prove any fact which would relieve him from those costs. According to this, Bennett Ware was properly excluded by the Chancellor. The complainant filed his bill against Bennett Ware, for contribution as a co-surety, and prayed all the relief to which his case entitled him. He made Avery and R. H. Ware co-defendants, because, as the complainant charges, Bennett Ware, to defraud his creditors, had assigned to their use a fund to which his creditors were entitled, he having become insolvent. Now, so far as the bill sought a decree for contribution, Bennett Ware alone was liable for costs, and so far Avery and R, H. Ware were not liable; and so far as the bill sought to set aside the assignment, on the ground of fraud, all the parties to the fraud were liable for the costs. The parties to the alleged fraud .were, Bennett Ware, R. H. Ware and Avery; and if it should be established, (which was the case, but for Bennett Ware’s deposition,) they were all directly liable for the costs of the cause, so far as it involved the question of fraud. Was Bennett Ware, in this predicament, a competent witness to disprove the fraud? We think he was not.

Note. — This opinion was delivered at the June term, 1851, but the reporter was instructed that it was unnecessary to publish it. It is now published at the request of the counsel who were engaged in the case. REPORTER.

The English rule, as held by Lord Hardwicke, it seems, has not been adopted, or not strictly adhered to, in New York. See Donald v. Nielson, 2 Cowen’s R. 139, and cases cited; and the court thought it had been shaken in England, and cited Man v. Ward, 2 Atk. 228; Cotton v. Luttrell, 1 Atk. 451; Fenton v. Hughes, 7 Ves. 287; Duncan v. Corporation of Chippenham, 14 Ves. 251; Whitworth v. Davis, 1 Ves. & Bea. 548, 551. I have looked into all these cases, and am of the opinion that they can be reconciled with the case of Barret v. Gore and Humfreville; or at least, that they are consistent with what we have held in this case. Some of them were decided by Lord Hardwicke himself, before he decided the case of Barret v. Gore and Humfreville.

The counsel for the plaintiffs in error argued other questions, which we have attentively considered; but our opinion is, that there is no error in the record, in respect of Bennett Ware’s competency.. The decree is affirmed.