Dumas & Co. v. Patterson, et al. pears that the plaintiffs offered to proye by the defendant, Patterson, when he had appropriated the money received by him upon the execution in question, to his own use, and he was willing to testify on their behalf; but the other defendants objected to his giving evidence against them, and he was thereupon excluded. The plaintiffs then proposed to prove, by a competent witness, the declarations of Patterson, as to the time when he converted the money collected by him, to his own use, but the defendants objected, and thereupon the witness was re-, jected. The testimony of Patterson, and his declarations were offered, to show that the money collected on the fi. fa. had been converted before the defendants, Creagh and Forward, ceased to be sureties on his official bond, by the substitution of a new bond. PECK & CLARK, for the plaintiffs in error, insisted, that as Patterson had no interest adverse to the defendants, and was willing to be examined, he was a competent witness. [Duffee v. Pennington, use, &c. 1 Ala. Rep. 506.] His declarations were competent, as those of a principal in an official transaction against his sureties. [Townsend and Gordon v. Everett, 4 Ala. Rep. 607.] The evidence was relevant, for if the money collected on the plaintiff's fi. fa. was appropriated by Patterson, while his co-defendants were his sureties, and before the new bond was given, then the defendants to the motion would be liable, and not the subsequent sureties. [The Governor, use, &c. v. Robbins, et al. 7 Ala. Rep. 79.] F. S. BLOUNT, for the defendant. A party to the record cannot, even by a release, be made a competent witness, and can only be made competent by the consent of all real parties in interest. [20 Johns. Rep. 142; 19 Wend. Rep. 353; 12 Peters' Rep. 145; 2 Starkie's Ev. 581, a; Greenl. Ev. 399, 400; 6 Pick. Rep. 464; 4 Wend. Rep. 456-7; 5 B. & C. Rep. 387; 3 Atk. Rep. 401; 2 Camp. Rep. 333-4; 1 Moore's Rep. 332.] If a party is incompetent to testify, his declarations are equally inadmissible. Dumas & Co. v. Patterson, et al. COLLIER, C. J.-In Duffee v. Pennington, use, &c. 1 Ala. Rep. 506, it was held, upon a very full examination of the authorities, that the defendant might examine the nominal plaintiff as a witness, if the latter did not object. In Scott, surviving partner, &c. v. Jones, et al. 5 Ala. Rep. 694, the admissibility of a party to the record to give evidence, was thoroughly considered, and we then held, that where an action is brought against several persons as partners, and one of them suffers a judgment by default, the latter is a competent witness for the other defendants, to prove that they were not his partners; for a verdict in their favor will not, under the statute, operate a discontinuance of the action as to him. See Turner, et al. v. Lazarus, 6 Ala. Rep. 875. Conceding then, that both the sheriff and his sureties are parties to the record, the cases cited, are quite sufficient to show, that if the sheriff was willing to give evidence for the plaintiffs, he was entirely competent, unless he was interested in fixing a liability upon his sureties. We think it must have been immaterial to him, so far as interest was concerned, whether a liability was fixed upon the one set of sureties or the other; for in either event, he was liable for his default, and could be called on, if able, to indemnify them. He was chargeable primarily, they consequentially; and whether they were successful in their defence or not, it could have no influence upon the motion against him. . The declarations of a sheriff, made while he was acting officially, in relation to the receipt of money, forms a part of the res gestæ, and are admissible as a part of the act, and explanatory of it; but if made while he is not transacting official business, or in contemplation of such business to be performed, it is inadmissible. See Bondurant, et al. v. The Bank of Ala., 7 Ala. Rep. 830, and cases there cited. What the sheriff, in the present case, said, in respect to the appropriation of the money collected on the plaintiffs' fi. fa. must, in the manner in which the bill of exceptions shows the inquiry was made, be regarded as an independent declaration, referable to no official act; consequently it was rightly excluded. In the Governor, use, &c. v. Robbins, et al. 7 Ala. R. 79, it was held, that where a sheriff collects money on a fieri fa Dumas & Co. v. Patterson, et al. cias, and renews his bond before it was demanded of him, or he converts the same, the sureties in the latter bond may be charged with his default in failing to pay over the money, if the evidence shows its converson after their bond was received, and before they were discharged from the suretyship. We there said, "all reasonable presumptions favorable to a performance of official duty, are indulged, and it cannot be presumed, from the mere receipt of money on an execution, by a sheriff, that he has converted it. If it had been shown, previous to the execution of the bond in suit, that the principal of the defendants had appropriated the amount collected by him, then the first set of sureties only would have been liable. But the proof does not show such to have been the predicament of this case; the liability to an action does not appear to have been fixed, until after the renewed bond was executed." It is apparent, from this statement of the law, that it was important for the plaintiff to show when the liability of the sheriff attached, that it might appear which set of his sureties were liable. This might be done by proof of a demand and refusal of the sheriff, or of the appropriation of the money to his own use, and when. The evidence then, sought to be elicited from the sheriff, was pertinent, and its rejection a fatal error. It may not be amiss to say, that the mere payment of money collected on one execution, to the plaintiff in another, or an appropriation of it by the sheriff to other purposes, will not be regarded as a conversion, so as to subject him or his sureties to a judgment on motion, for the failure to pay it over, if he retains other money ready to be paid to the plaintiff, on demand. It may be often difficult to prove a conversion, though it has actually taken place, otherwise than by showing a refusal to pay, yet, notwithstanding the difficulty of making such proof, we are satisfied with what we said as to its effect in the case last cited. It remains but to add, that the judgment of the County Court is reversed and the cause remanded. Hayes v. O'Connell. HAYES v. O'CONNELL. 1. Where the garnishee in an attachment suit was induced to file an answer prepared by the plaintiff's attorney, under his assurance that she should receive no injury, and be protected against certain notes outstanding in the hands of a third person, not a party to the suit, and afterwards the money due on those notes was collected from the surety of the garnishee, who then sued and recovered from the garnishee, the amount so collected, the plaintiff in the attachment suit is bound by the agreement of his attorney, and will be restrained from enforcing his judgment. Writ of Error to the Court of Chancery for the 27th District. THE case made by the bill and amended bill is this: Patrick W. Hayes, the testator of the complainant, was indebted to one John Cavenaugh in the sum of $760, for goods purchased in March, 1832, and theh gave his two notes, each for $380, payable to John Cavenaugh, on the 1st March, 1833, with one Johnson as surety. In May, 1832, Hayes was garnisheed as the debtor of one Patrick Cavenaugh, in a suit by attachment against him by O'Connel & Brennan, The attachment was returnable to August term of the County Court of Shelby county, for the year 1832, but the garnishment was never answered by Hayes, who died in January, 1833. Afterwards, John Cavenaugh commenced suits against Johnson, the surety on both the notes, returnable to the spring term of the Circuit Court of Autauga county, for the year 1833, and recovered judgment thereon at the fall term of the same year, for the principal and interest. After the death of Hayes, the attorney of O'Connel & Brennan, who knew that the notes executed by Hayes were payable to John and not to Patrick Cavenaugh, induced the complainant to put in an answer to said garnishment prepared by himself, by assuring her that there was no danger of a recovery being had in the suits against Johnson, if he would make the necessary defence, and that he, the attorney, would see that the necessary defence was made; also, that she could Hayes v. O'Connel. not be made to pay the debt but once, and that he would protect her against the notes on which Johnson was sued. This answer admits, that Hayes in his lifetime purchased a quantity of goods from Cavenaugh, and gave a note of which he had not been garnishment was served. not being inserted, the true condition of the case did not appear, and when the attorney produced the answer, the court construed it as an admission of the indebtedness, and directed an issue to ascertain the amount, which was assessed at something more than $900, and judgment was accordingly given in favor of O'Connel, as survivor of Brennan, against her, as the executrix of Hayes. The transaction with respect to the answer took place in January, 1834, some months after the judgment against Johnson had been rendered. informed of the transfer, when the The christian name of Cavenaugh Johnson, having paid the amount of the judgments recovered against him, commenced proceedings against the complainant for her reimbursement. And O'Connel also endeav oring to coerce the judgment obtained by him, she filed her bill against both of them, under the impression that it was a case for interpleading; but her bill in that behalf was dismissed, without prejudice to any one she might be advised to file against O'Connel. She has subsequently been compelled to pay the amount paid by Johnson, and now prays ⚫ that O'Connel be perpetually enjoined.. O'Connel does not answer the bill, which was taken as confessed, and heard upon the exhibits and proofs. The evidence in the cause supports the allegations of the bill, but also shows that one of the inducements held out to the complainant to answer the garnishment was, that if O'Connel could condemn the debt, she would be favored in its mode of payment. It also appears, that O'Connel was under the impression. the goods purchased by Hayes, for which the notes were given to John Cavenaugh, were in point of fact the property of Patrick Cavenaugh, and the sale void, as a means to cover his property, but there is no testimony showing that such was the case. The Chancellor dismissed the bill, and this is now assigned by the complainant as error. J. B. CLARKE, for plaintiff in error. |