Neal v. Lamar

By the Court.

Starnes, J.

delivering the opinion.

[1.] The point first made in this case presents the question, whether or not the mere fact that the name of a witness appears as a party upon the record, is sufficient to exclude his testimony, oven though ho has no interest in the event.

Having fully discussed this question in the case of Wooten & Co. vs. Nall, decided at this term of the Court, it is unnecessary for us to add the reason for our decision in this case. We content ourselves, therefore, with referring to the judgment delivered in that case, for the reasons which influence us to decide that the Court below' was right in holding, that if Col. Lamar had po interest in the suit, he was not incompetent as a witness, because he was nominally a party ,to the same.

[2.] But it was also objected that the administratrix of .John Lamar had no authority, as administratrix, to release the witness; and that such a release from the administratrix, if it were lawful, did not relieve the witness from liability to .the plaintiff.

We have no difficulty in recognizing the right and power an administrator, or administratrix, to do any such act for ,the benefit of the estate. Of course, he or she acts at his or her peril. If the act be for the interest of the estate, or if it be what should reasonably have been done, under the circumstances, for the promotion of the best interests of the .estate, the law will sustain and protect the trustee in the cx.ercise of such authority.

It is true that the release in question did not relieve Col. L. from liability to the plaintiff; and therefore, he could not be a competent witness to testify, generally, in the case. He might have been allowed to testify as to the character in which John Lamar signed the note, as this did not affect his liability to the plaintiff. The release, thus, would remove all interest springing out of his relations to the other parties in the case, and render him competent to show the fact of the character in which John Lamar signed the note.

[3.] But we are clearly of opinion that the Court erred in holding that Col. Lamar could be a competent witness in this case, .totestify generally, and thus to prove circumstances, the effect which was to show, or was intended to show, that the judgment was dormant. Of a consequence, the result from such proof, if it -were credited, would be the release of the parties from liability on the judgment. The record could be used in favor of the witness; and he would, therefore, be interested in making such proof.

[4.] We think, too, that the Court erred in charging the Jury, in substance, that the Act of our Legislature of December 19th, 1822, commonly called the Dormant Judgment Act, had in view the settlement of executions within the period óf every seven years, if defendants had property sufficient to satisfy them; and that some effort to have the same satisfied, must be made within that period, and shown by the return of she proper officer.

We are by no means prepared to hold that a judgment creditor may not, in good faith, indulge his debtor beyond the period of seven years, and have a return, in good faith, made by the proper officer, for the purpose of showing part payment, or execution to a certain extent. On the contrary, we hold that the Act was passed, as it shows for itself, to prevent fraudulent collusion between parties to judgments, for the purpose of wrongfully enforcing such judgments to the injury of bona fide creditors, and that this was the mischief, and the only mischief, intended to bo remedied.