Stetson v. Goldsmith , 30 Ala. 602 ( 1857 )

STONE, J.

It will be borne in mind, tbat no question is raised by this record on tbe admissibility of the declarations of Mrs. Goldsmith, made in the presence and hearing of her husband, the plaintiff. The bill of exceptions discloses that the defendants made preliminary proof of the wife’s declarations, in the presence of her husband, to the effect that she claimed some interest in the goods which had been attached and sold. The defendants then offered to read in evidence a bill in chancery, filed by Mrs. Goldsmith, against these defendants, Mr. Goldsmith, and others. This bill was filed with the knowledge of the plaintiff, Goldsmith. The bill is not before us ; and we can have no knowledge of its contents, further than is disclosed in the meager statement found in the bill of exceptions. The court, on the motion of the plaintiff, excluded this evidence ; and the defendant excepted.

The general rule is, that a bill in chancery is not evidence against any person ; not even against the complainant, when offered in another suit between the same parties. — Adams v. McMillan, 7 Porter, 73. Is there any thing in this case to take it out of the operation of the rule ?

Mrs. Goldsmith and her husband, under the facts disclosed in this record, did not sustain towards each other the relation of either bailor and bailee, or principal and agent. TIence, the principle applicable to those relationships, even if enough were shown to bring the rules to bear, has no relevancy here. — See Kingman v. Pearce, 17 Mass. 247; Girard v. Taggart, 5 Serg. & Rawle, 19; 9 Bacon’s Abridgment, by Bouvier, 457, Trespass, C.; Morris v. Cleasby, 1 Maule & Sel. 576; Kelly v. Munson, 7 Mass. 319; Sadler v. Leigh, 4 Camp. 195; Squire v. Hollenbeck, 9 Pick. 551; 2 Saund. 47 d; Anthony v. Gilbert, 4 Blackf. 348; Higgins v. Whitney, 24 Wend. 379; Hare v. Fuller, 7 Ala. 717.

If Mrs. Goldsmith had any interest in the goods, it was as part owner, and not as bailor or principal. It is said tliat, in an action of trespass for taking and carrying away goods, if there be a non-joinder as plaintiff of a party interested in the goods, this furnishes matter for plea in abatement, or it may be taken advantage of byway of apportionment of the damages on the trial. — 1 Chitty’s Pleading, 65-6.

In this case, there was no plea in abatement. The only question, then, is, does the fact that Mr. Goldsmith kneAv the bill in chancery was filed, render that bill legal evidence, tending to establish the proposition that Mrs. Goldsmith was part owner of the goods ?

"Without stopping to inquire how the rule would be, if the record showed that Mrs. Goldsmith had asserted her claim to an interest of two thousand dollars in the goods, and that the plaintiff knew she had asserted such claim, we think that no sound reason can be urged why a bill in chancery, filed by her, must be taken as an admission against him; when, if the same bill, with the same aver-ments, had been filed in his name, such bill could not have been given in evidence against him. True, if the bill had been sworn to, a rule different in some respects would prevail. — 3 Greenl.Ev. § 275. "We are not informed that this bill was sworn to.

The charge given asserts nothing but the familiar principle, that a party who procures a levy to be made by a sheriff, under a process void on its face, is a trespasser.— See Duckworth v. Johnson, 7 Ala. 578, and authorities cited; Lewis v. Dubose, 29 Ala. 219.

The charge refused sought to heal all irregularities in the attachment and levy, on the ground that the judgment entry recites that the parties came. "While this recital is sufficient, under our decisions, to uphold the judgment, and prevent its reversal, (see authorities collected in Smith’s Adm’r v. Ellison’s Heirs, at the present term;) yet this result is not based on the principle, that all previous irregularities and abuses are thereby waived. It rests alone on the fact, that the defendant is in court by his appearance; in which case, no process whatever is necessary to the validity of the judgment. The appearance waives all right to question the irregularity of the notice ; but is no waiver of the tortious seizure of the defendant’s goods. As well might it be contended, that an appearance or plea, in a suit commenced by attachment, is a waiver of the right to insist that such attachment is vexatious; or that the defense of a prosecution admits that the same is not malicious.

There is no error in the record, and the judgment of the circuit court is affirmed.