Hudson v. Crow , 26 Ala. 515 ( 1855 )

CHILTON, C. J.

—The court below did not err in refusing' to exclude the deposition of Williams, conceding that he was an interested witness; for it is not permitted to a party, knowing of a witness’ interest, to allow his adversary to go on and examine him by deposition, raising no objection on the ground of interest;' thus enabling himself to read the deposition, if it should prove beneficial to his side of the case, but, in the event it should prove detrimental to him, then for the first time to spring the objection at the trial and exclude it. The rule which usually obtains, of not allowing questions to be asked upon a cross-examination which properly belong only to an examination upon the voir dire, is founded upon a similar reason — the objecting party ought not to be allowed to speculate upon the testimony of a witness whose interest is known to him. The true rule requires the party against whom an interested witness is offered, to elect whether he will permit him to be examined or not, as soon as the opportunity to make such election is offered; and if he does not do so, he is presumed to waive it forever. He is then said to be “ in mora”, and any subsequent objection on account of the witness’ supposed interest comes too late,— 1 Greenl. Ev., § 421, and notes, (5th ed.) pp, 529-31.

The defendant’s attorneys in this case, when they accepted service of the interrogatories, say they “ waive no objection to the legality, pertinency, relevancy, or competency of the interrogatories”; but this raises no objection to the witness’ interest, which must be distinctly made, or it is waived. Indeed the inclusion of these is an exclusion of the objection to the witness’ interest.

Hudson, by the consent of the sheriff, having been substituted in the place of Woodruff, to take the cotton at the bid of the latter, in lieu of so much money, cannot say that he was committing a trespass, and should not therefore be charged with the price as so much money. We must intend the sheriff did his duty, and made the proper endorsements of credits on thot.fi. fa.; and if the defendant in the execution does not complain, but allows the sale to stand as a satisfaction of the execution, it does not lie in the mouth of the purchaser to make complaints for him. He received the cotton as money, at the price at which it was bid off by Woodruff, and is chargeable with money, as between himself and Crow, to whom he bound himself by his receipt to account.

The proof of a demand of specie by the sheriff, after the cotton was bid off by Wroodruff, at the request of Hudson, and the offer of Woodruff to pay in current bank-notes and to make good the difference, was not illegal. It was explanatory of the circumstances of the sale, and of the manner in which Hudson obtained the cotton, by pushing Woodruff out that -he might take his bid. It tends further to show that Hudson took the cotton as money, deeming it more valuable. It was emphatically part of the res gestee.

The objection, that a portion of the proof made by Williams is illegal, is not well taken. It was a general objection to the whole deposition, a portion of which was clearly legal, casting upon the court the duty of sifting the proof in order to separate the legal from that which was not. The court is not bound to do this, and in such cases may properly overrule the objection.

When this case was first before us, the record showed that the judgment against Williams had not been satisfied,- — that the sale of the cotton left a balance due, and thereby raised the inference that the cost must bp first deducted from these sales. No such facts appear now before us, and hence the opinion then delivered reversing the judgment by reason of a charge to the jury, “ that the amount of Hudson’s bid for the cotton should constitute the measure of the plaintiff’s recovery”, does not apply. Hudson is clearly liable to the amount of his bid, as though he had received that much money. If that sum has been lessened by expenses, court costs, or the like, the burthen of showing this was devolved on him ; and as the record fails to show any such expense, or any court cost which is a charge on the fund, we should violate a cardinal rule of decision, to travel out of the record and presume the existence of such charge to reverse the judgment; thus presuming against the regularity of the proceedings in the court below.

In relation to the expenses incurred by Hudson “ in pursuing Williams when he secretly left the county, taking his property with him”, we need only observe, that the bill of exceptions fails to show that such expenses were necessarily incurred, or that they are such as Crow would be bound to pay. The record does not purport to set out all the proof, and the fact may be, that Williams left property sufficient to satisfy the judgment. It appears the note was given for land, and the inference is that a lien existed on that for its payment. Besides, there were eighteen bales of cotton left behind by Williams; whether any more property does not appear. But, however this may be, the party excepting must not leave the court-to indulge in presumption as'to the necessity for Hudson's pursuing Williams to secure or collect this judgment. All reasonable intendments are the othet way, as we have uniformly decided. Hence we might reasonably conclude that Hudson’s object in the pursuit .was to secure the debt due to him of. $166, instead of the judgment; especially since it appears he went to the defendant’s residence after-wards, and collected most of it, without even naming the judgment, as appears by Williams’ testimony.

Considering the charges with reference to the proof which is set out in the bill of exceptions, we are of opinion they were correct — at least that there was no error of which the appellant can complain. Whether one of these charges, as to Crow’s liability for the expense incurred in pursuit of Williams to the State line, is not too favorable for the appellant, is not a question for consideration.

Let the judgment bé affirmed.

Rice, J., having been of counsel, did not sit in this case.