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JULY 1829.

King

Green.

in other cases where the sum to be recovered would be assets. Other authorities might be adduced to the same points, not only that in such cases he may sue as executor, but that the price of goods sold by him, in the character of executor, are assets; and if this will hold in England, it is more especially true in this State, where executors and administrators are not only permitted, but required to sell the perishable estates of decedents upon credit. Bonds and notes therefore taken at such sales, would be held by them, not in their own right, but as assets, in the right of others. And hence upon their death, resignation or removal, such notes or bonds would pass to those entrusted with the further administration, as part of the estate unadministered. It follows as a fair deduction from what has been said, that in the present action, one of the obligees, who was administrator, having married an obligor to the bond sued on, which bond she held as assets, the remedy was merely suspended, and not destroyed as if it had been held in her own right, for her own benefit. And this suspension of the right to sue would have continued during coverture, but for her resignation and the appointment of another to finish the administration. When this was done, this disability was removed, the right of action restored, and as we conceive properly asserted and fairly sustainable.

But it is said the judgment is of a character, that the writ of error cannot be prosecuted, and should be dismissed. We are of a different opinion. The record shews that by agreement, the Judge took the papers, decided the case in vacation, and having returned them to the clerk, a reference was had to his determination, and a judgment was entered, not exactly in form, but as we conceive, sufficiently so to be reversed, if erroneous; and we believe it was erroneous.

The judgment must be reversed, and the cause remanded.

JULY 1829.

WINSTON V. MOSELEY.

3. A plaintiff cannot, after examining a witness introduced by himself, pros

pound questions to him, tending to shew him to be incompetent, or unwor.

thy of credit. 2. Nor can he examine other witnesses to prove him incompetent, or to im

peach his credit. 3. But he may introduce other witnesses to establish the facts of his cause,

though they contradict what his previous witness deposed. 4. There being three issues, and a verdict for the defendant, some of the

jury disagreeing as to one issue, the verdict is nevertheless sufficient to

authorize a judgment for the defendant. 5. A cotton receipt. assigned by the payee before it is due, is not subject in

the hands of an innocent indorsee without notice, to a set off existing

against the payee. 6. Cotton receipts, by our statutes, are placed on the same footing, as to ne

gotiability, with inland bills of exchange.

This was an action of assumpsit, brought by J. J. Winston against W. F. Moseley, in Lawrence Circuit Court, in March, 1823, to recover on a cotton receipt, given to W. Pettus, by the defendant, who was a ginner of cotton, on the 10th of December, 1821; whereby he acknowledged to have received of Pettus 60,000 pounds of cotton in the seed, to be picked, baled and delivered to Pettus for one twentieth; Pettus providing the materials for baling. This receipt was on the day of its date, assigned by Pettus to the plaintiff.

The defendant pleaded: 1. That he did not execute the receipt; which was verified on oath. 2. That the cotton was alldelivered to Pettus, before notice of the assignment. 3. As a set off, that Pettus, at the time of the commencement of the action, was indebted to the defendant in the sum of $250, by a note made by Pettus to the defendant, the 20th December, 1520, and payable in cotton of the crop of 1821; and further by an agreement made between Pettus and one William Moseley, dated the 17th November, 1821, whereby Pettus promised to pay $1329,66, in cotton, to be delivered at the gin of the defendant; and which on the 26th of December, 1821, and before notice of the transfer of the cotton receipt sued on, had been by William Moseley, assigned to W. F. Moseley, the defendant. The issues were tried at March term 1827, when the jury found a verdict for the defendant, and some of the jury also said, that “the receipt on which the action was brought, was genuine." "I'hereupan the Court rendered judgment for the defendant.

1 JULY 1829.

By a bill of exceptions tendered by Winston, it appear.

ed that the plaintiff introduced as a witness, William MoseWinston

ley, who deposed, that on the 26th December, 1821, he v. Moseley. transfered to W. F. Moseley, the defendant, the agreement

made to him by Pettus, that the transfer was absolute, and for value received, and that he did not then know of the existence of, or transfer of the cotton receipt sued on by Winston. After he had been cross-examined, the plaintiff's counsel asked him if he was not bound by contract with the defendant, to release him from the whole or part of the consideration given for the transfer of the agreement, if it did not prove to be a sufficient set-off, or if he was not bound for part of the costs of the action, if the defence failed. The defendant objected to the witness answering those questions, and the Court sustained the objection.

Eppes, another witness, was then introduced by the plaintiff and examined as to facts going to contradict the evidence of the former witness, without objection, and was then requested by the plaintiff's counsel to relate all the conversations which had taken place between him and the witness Moseley, concerning the subject of controversy. This was also objected to by the defendant, and the objection was sustained.

The plaintiff's counsel requested the Court to instruct the jury, that the defendant was not entitled to either item of set off relied on, because there was no proof that the plaintiff had notice of them, at the time his receipt was transfered to him. But the Court refused that instruction, and charged the jury that the items of set oil, so far as they were proved to exist before the defendant had notice of thie transfer, were available against the plaintiff.

The matters of this bill of excceptions were assigned by Winston, the plaintiff in this Court, as error; and also, that the verdict not being given by the unanimous assent of twelve jurors, was irregular and void, not being responsive to the issue on the first plea, so that there was no basis for the judgment rendered.

KELLY and HUTCHISON, for the appellant. a 1 Starkie's Evid. 147. 3

COALTER, for the defendant, a Starkie's Evi. 1751. 3 Marshall32.Grundy v. Jackson By JUDGE COLLIER. The opinion of this Court 3: Whartou's is asked upon the following questions of law,

1. Can a Dig 365. Laws of Ala. 66. party be permitted to shew the incompetency of a witness

Winston

introduced and examined by himself, by a question pro- JULY 1829. pounded to that witness? 2. Can he shew the incompetency of such witness, by the examination of other witnesses? 3. Is a verdict in these words: “they (the jury) Moseley. say that they find a verdict for the defendant, and some of the jury also say, that the receipt on which the action is brought, is genuine," a sufficient warrant for a judgment in favor of the defendant, where there is one plea among others, putting in issue the execution of the writing sued on? 4. Are the securities called by our law "cotton receipts,” so far negotiable as in an action brought on one by an indorsee, before due, to prevent a demand acquired by the maker, against the payce, previous to notice of assignment, from being made the subject of a set-off?

It is understood to be a well settled principle of law, that a party cannot discredit the testimony of his own witness, or shew his incompetency, a and the reason of it is a 1 Starkie's.

Ev. 147. this, because it would be unfair that he should have the benefit of the testimony if favorable, and be able to reject it is the contrary. It can avail the plaintiff nothing to say, that the 6 Buller's answer to the question proposed by him, though its ob- NP.297. vious tendency was to shew the witness incompetent, was not designed to be used for that purpose, but that the ob. ject was to shew, that the witness had never made a transfer by which he parted with his interest in the security supposed to have been assigned by the witness to the defendant, and which he was attempting to set off to the action, and thereby to defeat that defence. It is immaterial what may have been the intention of the plaintiff, that is a circumstance which cannot be noticed; the Court can only look to the answer which a direct response to the question would elicit, and determine from thence of its admissibility.

If it were conceded that the Court erred in overruling the question proposed, because it impugned the competency of the witness, the objection to the examination was nevertheless sustainable, because an affirmative answer would have contradicted what he had before said, and thereby shewn him undeserving of credit.

In sustaining the opinion of the Court below on the first ground, this Court is not to be understood as extending the rule further than it has expressly laid it down; a party may, in some instances, shew facts variant from what his own witness has stated; where a witness by surprise gives testimony against the party who calls him, he may make

JULY 1829.

out his case by other witnesses. When a party calls a wit

ness, for the purpose of satisfying the formal proof reWinston

quired by the law, he may call other witnesses, who give Moseley. contradictory testimony. The reasoning and authority up

on the first point, are with equal force applicable to the sea 1 Starkie

cond. Ev, 147.

The verdict of the jury, is a sufficient authority for the judgment. It is sufficiently certain, and shews that though some of the jury may have disbelieved the truth of the plea which put in issue the making of the cotton receipt, yet they were of opinion that the defendant had sustained by proof some or all of his other pleas; and if upon either issue, a verdict was found for the defendant, the plaintiff's cause of action is fully answered, and the judgment should have followed the verdict. The true interpretation of the verdict is, that the jury found all the issues in favor of the defendant, but that which put in issue the execution of the cotton receipt; on that issue they expressed no opinion, as the verdict authorised a judgment for the defendant on the others. The defendant therefore cannot be permitted to object to a reversal, because it is not shewn that the judgment on that issue is erroneous.

The fourth point claims from the Court, a consideration more full and minute. It renders it necessary that the Court should declare by its decision the character of “cot. ton receipts;" whether they are to be esteemed as standing on equal ground, and regulated by the same principles that control the transfer of promissory notes, or whether they do not partake of the commercial character, and are therefore controlable by those rules of mercantile jurisprudence,which determine the nature and qualities of an inland bill of exchange. To a solution of these questions, the legislative acts in relation to them, must be examined. The first

statute was passed in 1807, entitled “an act to render «Laws of Ala. promissory notes and cotton receipts negotiable, and for

other purposes.

The first section of this act makes promissory notes negotiable as inland bills of exchange were. The second section enacts, that cotton receipts shall be negotiable in the same manner as promissory notes are by the first. These propositions will be found apparent from an inspection of the act without calling in aid any rule of construction.

P. 66.

a

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