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JULY 1829.

Wallis

Munf. 312.

The defendant appeared by his counsel, and at the trial term, moved the Court to quash the proceedings; which

motion was overruled, and a verdict and judgment were Murphy. rendered for the plaintiff for the amount of his debt.

Wallis, in this Court assigned several matters of error, and among other things that the writ of attachment improperly issued on a state of fact not sufficient to warrant it.

Thorntox, for the appellant; argued, that the recital in the writ that Wallis was about to remove privately was insufficient, and did not disclose such a state of fact as would authorize the issuance of it; that by the statute it was requi

site that it should appear that the defendant was actually reaLaws of Ala. moving; the words of the statute are, “is removing &.c."a

.12 sec.2. which is materially different. Again, the recital in the Marsh.354, writ is not supported by the affidavit, for in the affidavit it 2

does not appear he was about to remove privately. This is also a material requirement of the statute. The attachment therefore issued improperly, and consequently the judgment is erroneous.

M-Clung and ADAIR, for the appellee. It will be seen that the attachment was issued by the justice of the peace, under the 15th section of the act of 1814, to

revise, consolidate and amend the several acts relative Laws of Ala. to justices of the peace, &c.) which requires as a condition

that the plaintiff should comply with the terms and requisicLaws of Ala. tions of the 5th section of that act.c One of the grounds for

issuing an attachment by that section is, that the defendant is about to remove himself or effects out of the Territory,

so that the ordinary process of law could not be served on dLaw of Ala. him.

By the second section of the act of 1807,d the lanpage 12.

guage is whath removed, or is removing him or herself out of the county privately.” The 10th section of the same act, page 14, to prevent errors, as it is alleged, gives the form of the attachment and bond, and in that form, the words bois 'about to remove himself out of your county,” are used. The attachment in this case is a correct copy from that form. At the conclusion of the section, there is a proviso, that no attachment shall be abated for want of form, if the essential matters expressed in the foregoing precedent be set forth in such attachment. Asin this case the attachmentis substantially and probably literally copied from the form, it comes within the range and protection of this proviso. The Legislature in those acts of 1907 and 1814, intended to give a remedy where the ordinary process of the law would be in

512.

page 18.

Wallis

effectual, or could not be served; the affidavit, together with JULY 1829. the other requisites, states that the defendant was about to remove himself out of the county, his place of residence, so that the ordinary process of the law could not be served on Murphy. him, and therefore it was substantially sufficient.

By JUDGE PERRY. Among other causes it is assigned for error, that the affidavit is not sufficient to authorize the issuance of the attachment. The question arises, is the statement in the affidavit sufficient under the act of 1907,a to authorize the issuance of the attach- a Lawsof Ala. ment? The causes for which an attachment may issue,

page 12.sea 2 as designated in the law, are, “that any person hath removed, or is removing him or herself out of the county privately," &c. The reasons then, as stated in the affidavit as the ground upon which the attachment issued, are not warranted by the statute, which only authorizes an attachment to issue upon affidavit that the person hath removed, or is removing him or herself out of the county privately, so that the ordinary process of law cannot be served on him. In this case the oath is, that the defendant below “is about to remove himself out of the county of Morgan, his place of residence, so that the ordinary process of law cannot be served upon him;" this statement does not furnish a sufficient reason for granting the attachment; it should have been, that Wallis was actually removed, or was removing privately, either of which facts might have furnished a sufficient reason for the issuing of the writ. The allegation, therefore, that Wallis was about to remove, does not negative the idea that he was not amenable to the ordinary process of law;consequently the attachment improperly issued, 8 See Wilson and should have been quashed.

v. Oliver.

Minor's Ala Judgment reversed.b

Rep. 196.

M'KINNEY'S Executors v. M'KINNEY's Administrators.

In an action by executors, the plaintiff offered the deposition of a witness,

who was shewn to be a son-in-law to the testator: Held, that he was an incompetent witness; though there was no further proof as to his interest.

This was an action of detinue, brought in the Circuit Court of Tuscaloosa county, in 1822, by John M'Kinney,

JULY 1829.

V.

Admrs.

his lifetime, against Sarah M'Kinney as the administratrix M'Kinney's

of Alfred M’Kinney, deceased, to recover two slaves. DurExecutors ing the pendency of the suit, the plaintiff died, and the cause M'Kinney's

was revived by his executors; and also the defendant hava ing intermarried, her husband was made a party defendant.

At the March term, 1827, the issue was tried by a jury, and a verdict was found for the defendants. The plaintiff's took a bill of exceptions, certifying, that on the trial, they offered the deposition of one Thomas Smith, a material witness for them; but the Court considering that said witness was a son-in-law of John M'Kinney, the plaintiff's testator, rejected his testimony as incompetent and inadmissible, less the plaintiffs who offered the deposition, would first shew in evidence that he was not interested. There was no other evidence of his having any interest in the cause except that he was a son-in-law to the said John M'Kinney, and that he deposed after his death. It further appeared that the said testator lived and died a resident citizen of Virginia, and that at the time of his death, the property in dispute was in Tuscaloosa.

The plaintiffs here assign for error, that the said deposition was improperly rejected, and that it should have been read, as it was not shewn that the witness was interested.

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BARTON and STEWART, for the plaintiffs. There was no other objection to the deposition but that of the deponent being son-in-law to the deceased, whose executors were plaintiffs; and this was certainly an insufi. cient objection in itself, to reject him as an incompetent wito

Ít must be admitted, that all witnesses are prima facie competent; and they will be presumed to be so, unless some disqualifying objection is shewn; and as all the pre

sumptions of the law are in favor of the admissibility, the ia 3 Stark. Er- objection must be shewn, not presumptively or loosely, but

positively and with certainty.a

The kindred or connexion of the witness to the deceased b 1 Stark. Ev- or to his heirs, constitutes of itself no objection whatever to idence 34, 85. his competency. The only objection then must be on the

ground of interest. Then what is the rule in relation to 03Stirl. Ev. interest? To be disqualified, a witness must have an im2 16.749--5, mediate, legal, present, certain and direct interest in the

event of the suite 'This is mcontrovertibly the kind of 1 Stork. Ev.

interest necessary to be shewn. The next inquiry is, in

what manner must the objection be shewn? It is not sufBayards E. vidence 100.

ficient to shew that the witness muy or may not be inter

2 Ib. 392.

135, marg.

756-8-9.
4D Est17

idence 30.

JULY 1929.

a 3 Stark. Ev.

716--17

88.

ested in the event of the suit, for this is not establishing the objection; the fact must appear with certainty, that he is in

M'Kinney's terested. Here there is but a presumption shewn, and the

Executors. fact of interest is not reached. It is a well established rule,

M'Kinney's according to the authorities, that notwithstanding a prima Admrs. facie appearance of interest, that yet the witness should not be rejected without an examination as to his real interest and situation a And it is further laid down, that great strict-1734, marg. ness and caution are necessary to be observed in rejecting

2 Stark. Ev. a witness; and that even in cases where it is doubtful if the Bay. Ev. 27. witness be competent or not, it is more safe to admit the 614 john. Rep witness than to reject him, and to let the objection go to his 13 JohnR82. credibility;c certainly this is the most safe rule, and more cl Stark. Ev. likely to reach the justice of the case. Courts have, in modern times, leaned much in favor of the admissibility of objectionable witnesses; and have felt more disposed than formerly to refer the objection to the jury to judge of from all the circumstances which can effect their credibility; and this doctrine is particularly applicable to this country, where the Courts are careful to exercise as little control over the jury and facts of a cause as possible, whereas in England they rule the jury, and in fact often direct a nonsuit, or direct the jury what verdict they must give. The question simply resolves itself into this, is a plaintiff

, who offers a witness, bound to shew and prove that he is competent, or is it the duty of the party who makes the objection to shew and establish that objection? It is clear that the disqualifying objection must be proved by the party who makes it.d Then it is equally clear that to shew 22 Stark. 75% that Smith may or perchance might receive some benefit note. from the result of the trial, is not sufficient; he must shew that he will. What is the extent of the information afforded to the Court in this case? he is a son-in-law; but how stand the accounts? is the estate solvent? is not the contest for the benefit of creditors exclusively? has he not already received his portion of the estate as advancement? has he not received a special legacy by the will; and is not the

property in dispute specially given to some one else? or is he not entirely excluded by the will? All those and many others, are questions as to which the Court is entirely in the dark; yet the fact of his interest depends on this being shewn; and it devolves on the defendants to shew that he is absolutely interested.

Another objection is this; it does not appear by the record that the fact relied on to defeat the evidence was

JULY 1820.

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proved by the defendants; had the objection been made by

them, another question on the part of the plaintiff to the N!' inney's Executors witness, might have sufficed to prove that he had in fact no

interest at all: but no objection is made, and the fact of his M'Kinney's Admrs. being a son-in-law is only gathered from the tenor of the

deposition. This surprises the plaintiffs; and it is the rule,

that in taking evidence by deposition, surprise is never 23 Stark. Ev. tolerated nor permitted.a' The evidence being

taken by deposition, shews the witness was out of the State, and in fact all the plaintiff's evidence comes from Virginia. The defendants should have been required before they could sustain the objection made by them as to interest, to have asked the witness as to his real situation in interest, to have shewn it by other means, or at least to have made the objection when the witness was examined, so that the plaintiffs might have themselves asked the question and avoided the surprise. At all events, it is now more safe for this Court to reverse and remand, in the absence of all knowledge, whether the witness be really interested or not, than to affirm and render the verdict irrevocable, be it right or wrong, of which the Court certainly must be in doubt at least.

SHORTRIDGE and Ellis, for the defendants.

By JUDGE WHITE. The only question insisted on in argument in this case is, that the Court below erred in rejecting the deposition of one Thomas Smith, taken for the plaintiff, on the ground that said witness was the son-in-law of the plaintiff's testator. In support of this position, it is urge i that Smith, notwithstanding he was a son-in-law, might have had no real interest that would have rendered him incompetent; and that the defendant should have made a further showing. Courts, in modern times, have leaned much against the rejection of witnesses; but it is a well settled rule that when they are directly interested in the event of a suit, or in the record as evidence, they must be excluded. In the present case, Smith's testimony must be viewed as tending to create or increase a fund, as part of the estate of his father-in-law, in which he might have been interested; and this was the reasonable presumption till the contrary appeared. True, it was not certainly the case; he might have been advanced to his full portion of the estate on his marriage; the will might have disposed of the whole

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