CUNNINGHAM v. COCHRAN.

[18 ALABAMA, 479.]

COURT KNOWS OF No RULE OF LAW BY WHICH DECLARATIONS OR ADMISSIONS of a bank president are admissible in evidence to bind the bank simply because he is such president.

ADMISSIONS OF AGENT TO BIND HIS PRINCIPAL must be made at the time of doing some act in the execution of his authority.

RULE OF PRACTICE WITH REGARD TO OBJECTION TO EVIDENCE is, that when it is not illegal upon its face, the ground of the objection must be stated to enable the court to judge of its legality.

EVIDENCE OBJECTED TO, BUT WITHOUT STATING PRECISE GROUND OF OBJECTION, if it is illegal upon its face, may be refused, notwithstanding such failure to state the cause.

ASSUMPSIT. The facts are sufficiently stated in the opinion.

White and Parsons, for the plaintiff in error.

Rice and Morgan, for the defendants.

By Court, DARGAN, C. J. Upon the trial of this cause, the plaintiff read to the jury the deposition of Christopher Haynes. The defendant objected to a portion of his answer to the second interrogatory, but his objection was overruled. The part objected to is in the following language: "All I know about the fees of the plaintiffs is, that, about January, 1841, William Smith, the president of said bank, told me that he had a settlement with the plaintiffs, for their services as attorneys for said bank, and was to pay them twenty-four hundred dollars, or about that amount." The object of introducing this testimony was to prove that the Western Bank of Georgia at Rome was indebted to the plaintiffs for professional services rendered as attorneys, and the question is whether that portion of the deposition of the witness was admissible for that purpose. We know of no rule of law that will justify the admissions, or declarations, of the president of a bank as evidence to charge the bank with a liability, merely on the ground that he is president. If in the discharge of a duty required of him by his office, or if he be an agent of the bank to do any particular act, and in the performance of such duty, or act, he makes an admission, which is part of the res gesta, such admission, being part of the act itself, is admissible evidence against the bank, as would be the admissions of any other agent made under the same circumstances, or within the scope of his authority. The admissions of an agent, to bind his principal, must be made at the time of doing some act in the execution of his authority: Bohannan v. Chapman, 13 Ala. 641; Greenl. Ev., sec. 113; Story on Agency, secs. 134, 135.

2. But it is contended that a general objection to the evidence is insufficient, and that the party should have gone further and pointed out the grounds of the objection to the evidence. The correct rule of practice is this: When the evidence is not illegal upon its face, but it requires some fact to be brought to the notice of the court to show its illegality, then the party objecting to the evidence must state the grounds of his objection, that the court may judge of its legality. Thus, if the entire deposition of a witness is objected to, without stating the grounds of the objection, the court may overrule the objection: Wallis v. Rhea & Ross, 10 Ala. 451; Donnell v. Jones, 13 Id. 490 [48 Am. Dec. 59]. So, too, if an objection is made to an entire interrogatory, or to an answer thereto, the court is not bound to examine the interrogatory, or the answer, to see if there be any just ground of exception or not: Millon v. Rowland, 11 Ala. 732. But when the portion of the evidence objected to is clearly pointed out, and its illegality is apparent on its face, then the objection must be allowed. Indeed, the very reason why the court may disregard objections to evidence, when the particular grounds of the objection are not stated, is that the court would have to cast about, or look for the grounds upon which the objection was made. But when the evidence objected to is clearly designated, and on its face it is illegal, without inquiry into any fact aside from the evidence itself, the objection can not be disregarded, merely because no specific ground of objection is stated.

In the case of Davis v. The State, 17 Ala. 415, we held that when evidence was prima facie illegal, it is not necessary that the party objecting to it should specify the grounds of his objection, but that a general objection was sufficient. With this decision I am entirely satisfied, for in such cases the objection itself brings to the view of the court the illegality of the testimony, and all that can be required of a party objecting to testimony is clearly to show the testimony objected to, and that it is illegal. This latter is sufficiently shown, if the evidence itself is prima facie inadmissible.

But it is again contended that the portion of the answer objected to was offered in evidence, in connection with a letter written by the defendant's intestate, which was admissible evidence, and that the objection was joint to the letter, as well as to that portion of the deposition of the witness, and, therefore, the court did not err in admitting both, as the court was not bound to separate the legal from the illegal testimony, when the objection extended to both. It is sufficient to say, that we do

not so understand the bill of exceptions. We see that a letter, written by the intestate, was offered in evidence, to which objections were made, and it is also stated that it was offered in connection with the deposition of the witness, but we can not infer from the bill of exceptions, that but one objection was made, and that such objection was made to the letter and the illegal portion of the deposition jointly. We think the inference from the bill of exceptions fairly is, that objections were made separately, both to the letter and objectionable part of the deposition of the witness.

As the cause must be reversed, we do not think it necessary to examine the other questions raised by the assignments of error, for we think it clear that the plaintiffs can establish their debt against the bank upon another trial by legal evidence, and the defendant then will have an opportunity to ask such charges as the evidence will warrant.

Let the judgment be reversed and the cause remanded.

CHILTON, J., not sitting.

ASSERTIONS OF THIRD PERSON CAN AFFECT PARTY ONLY ON GROUND OF AsSENT: Craig v. Craig, 24 Am. Dec. 390, and note. To make the declarations of one person admissible against another, the relation of principal and agent must first be established by proper evidence: Williams v. Williamson, 45 Am. Dec. 494, and note.

CONFESSIONS OF AGENT, EXCEPT WHERE THEY ARE MADE AT TIME, and compose a part of the acts done by him for his principal, within the scope of his authority, are not evidence against the principal: Roberts v. Burks, 12 Am. Dec. 325, and note, where numerous authorities are collected; also Haven v. Brown, 22 Id. 208; Mather v. Phelps, 1 Id. 65; Smiles v. Western R. R. Co., 41 Id. 486, and note; Franklin Bank of Baltimore v. Pa. D. & M. Steam Navigation Co., 33 Id. 687, and note; Winter v. Burt, 31 Ala. 33.

TESTIMONY INADMISSIBLE FOR PURPOSE FOR WHICH IT IS OFFERED must be rejected by the court, whether it be inadmissible for the reason assigned or not: Budd v. Brooke, 43 Am. Dec. 321, and note; also Abney v. Kingsland, 44 Id. 491, and note thereto, wherein are cited numerous cases.

THE PRINCIPAL CASE IS CITED to the point that when evidence is prima facie illegal, a general objection is sufficient to exclude it, in Leevy v. Wiggins, 31 Ala. 13, and in Gabriel v. The State, 40 Id. 357.

KINGSLAND v. FORREST.

[18 ALABAMA, 519.]

ACTION OF DEBT WILL LIE UPON JUDGMENT, AFTER FIRST EXECUTION HAS BEEN RETURNED UNSATISFIED, and within the time allowed by the statute for issuing an alias; the statutory provision giving the plaintiff the right to coerce the payment of the judgment is merely cumulative, and does not take away the common-law privilege.

DEBT upon a judgment rendered in 1840, brought by the plaintiff in error in December, 1849. Defendants pleaded that the action was brought within ten years of the rendition of the judgment, and that within a year and a day an execution had been issued, and been returned no property, etc. The plaintiff's demurrer to the plea was overruled, and he now assigns it

as error.

Cocke, for the plaintiff.

Belser and Harris, for the defendants.

By Court, DARGAN, C. J. The only question we deem it necessary to decide is this-whether an action of debt will lie in this state on a judgment, rendered more than a year and a day, but less than ten years from the institution of the suit, and on which execution had issued within the year and been returned no property found.

I confess that my researches have not satisfied my mind, whether an action of debt could be maintained at common law on a judgment within the year and day from the time of its rendition, and when the plaintiff could issue his execution thereon. The common-law writers lay it down generally, that debt will lie on a judgment: 1 Ch. Pl. 126; 1 Tidd's Pr. 3. Blackstone says, that if one has obtained a judgment against another and neglects to sue out execution thereon, he may afterwards bring an action of debt on the judgment: 3 Bla. Com. 129. Mr. Selwyn says that debt lies on a judgment within or after a year and a day, but he refers only to one case, decided in 43 Edw. III., c. 2, 3. But this case is not within our reach, and we see that different conclusions have been drawn from different American courts from the same authority: See Clark v. Goodwin, 14 Mass. 237, and Lee v. Giles, 1 Bailey, 449 [16 Am. Dec. 476]. The question, however, has often been discussed in courts of the different states, and the decided weight of American authority is that debt will lie on a judgment within a year and day; but we find it asserted on general principles, without reference to any decided case in England, save the one we have referred to: See Headley v. Roby, 6 Ohio, 521; Hale v. Angel, 20 Johns. 342; Goodrich v. Colvin, 6 Cow. 397; Church v. Cole, 1 Hill (N. Y.), 645; Greathouse v. Smith, 3 Scam. 541; Denison v. Williams, 4 Conn. 402; Clark v. Goodwin, 14 Mass. 237. It is true in the case in 4 Connecticut, there are several references to English authorities, but on examination, they will, I think, be found inapplicable to the question decided in the reign of Edward III.

The note of that case, as I find it in Viner's Abridgment, is as follows: "At common law, if a man had recovered a debt, he might have had an action of debt on this judgment after the year:" Vol. 7, title Debt, O. I should, therefore, hesitate before I would hold that debt would lie on a judgment within the year of its rendition. But no one will deny that at common law debt may be brought on a judgment after the year and day had passed, and the only question we need decide is whether our statute has taken away this common-law remedy.

It is true, that when an execution has been issued within the year and day, and has not been returned satisfied, an alias execution may be issued on the same judgment, within ten years, without a scire facias: Clay's Dig. 206, 207; but this statute does not take away the common-law right to sue in debt on the judgment. It only gives the plaintiff the remedy by execution to coerce the payment of the judgment, if he sees proper to use it, but was not intended to deprive him of his action of debt. The remedy given by the statute is cumulative merely, and a plaintiff may, if his judgment be not satisfied, sue in debt upon it, although he could, under the statute, issue an alias execution. We think it very clear that the court erred in overruling the plaintiff's demurrer to the defendant's third plea, and the judgment is therefore reversed and the cause remanded.

"AT COMMON LAW PARTY HAS RIGHT OF ACTION UPON HIS JUDGMENT as soon as it is recovered. This right is neither barred nor suspended by the issuing of an execution; nor because from having the right to take out execution, the plaintiff's action seems to be unnecessary:" Freeman on Judg., seo. 432, where the author cites the principal case, together with Albin v. People, 46 Ill. 372; Stewart v. Peterson, 63 Pa. St. 230; Gardner v. Henry, 5 Coldw. 458, in support of the latter proposition.