Raisler v. Springer , 38 Ala. 703 ( 1863 )

R. W. WALKER, J.

The appellant’s bill of exceptions purports to set out all of the evidence, and presents the defendant in the attitude of a party who employs an agent to seize the property of another, without any authority for so doing. One who thus procures an illegal act to be done by another, is a co-trespasser with the party employed to perpetrate the wrong, and is equally responsible with him to the person injured, although not actually present when the trespass is committed ; and the acts and declarations of the agent, in performing such unlawful service, are competent evidence against his principal. It is a familiar principie, applicable alike in civil and in criminal cases, that where several persons combine for the same illegal purpose, anything said or done by one of the confederates, in the prosecution of the common design, is, in legal contemplation, the act of all. — Abney v. Kingsland, 10 Ala. 361 ; Johnson v. State, 29 Ala. 62. It is upon this principle that, if two persons are guilty of a joint trespass, and one of them, in the commission of it, does acts which would ■authorize the jury to give exemplary damages against him, the other is liable to the same extent. — Hair v. Little, 28 Ala. 247 ; Layman v. Hendrix, 1 Ala. 212. The manner in which an act, constituting a trespass, is committed, whether offensive andinsulting, or otherwise, is inseparably connected with, and forms, indeed, apart of the act itself; and, upon the principles just laid down, it must be competent evidence against the party by whose direction the trespass is committed, as well as against the agent by whose hand the injury is actually inflicted. — See, further, McClung’s Executors v. Spotswood 19 Ala. 165 ; Nelson v. Cook, 19 Ill. 440 ; Parkerson v. Wightman, 4 Strob. L. 363.

[2.] The court rejected the evidence, showing that the seizure of the property was made by Vest in “an offensive and insulting manner,” on the ground that it was the statement of an opinion, or legal conclusion. In this, we think, the court erred. The manner in which an act is done — whether rude and offensive, or kind and pleasant— is a matter of fact, open to the observation of the senses, to which a witness may legally testify. In Carroll v. State, 23 Ala. 28, the statement of a witness that, in replying to a certain question, the prisoner’s “manner was short,” was held to be admissible.

As the defendant has made no cross assignment of errors, the questions raised by the bill of exceptions taken by him on the trial are not now before us. Whether the judgment and execution referred to in that bill of exceptions are competent evidence for the defendant; and, if so, whether, in case of the introduction of both, or either of them, in evidence, the rule which makes the act and declarations of one co-trespasser evidence against another, could be considered applicable to this case, are matters on which we must not be understood as having expressed an opinion.

As the rulings of the circuit court are in conflict with the principles we have laid down, its judgment must be reversed, and the cause remanded.