Foster v. Rutherford

20 Ga. 676

Opinion

By the Court.

Benning, J.

delivering the opinion.

In this case, the first question is, whether the decisioq ex-deluding the “ release” was right ?

This instrument, relase as it is called, was not under seal,, nor did it appear to be founded on any consideration. Such an instrument does not, in general, bind the party who makes it.

But if this had been good against that party, what harm could it have done to the contesting fi. fa ? For aught that appears, the only effect of its having been so good, would have been to remove a fi. fa. of superior lien from competition with that fi. fa. for the right to have-satisfaction out of the released property. This, if the effect, would have been of benefit to that fi. fa.

And let the effect on other fi. fas. have been what it might, was not the plaintiff in this./?. fa. in the exercise of a legal right, when he executed the instrument? There was no privity of any sort between him and any of the persons who-might own or be interested in those fi. fas. None of them was a surety on his fi. fa ; and therefore, none of them was entitled to the right of subrogation, which a surety acquires on paying the debt — that right which is the source from which springs the rule, that when the principal in a fi. fa. releases the property of the defendant, the act amounts to a discharge of the fi. fa. to the extent of the value of the property.

Suppose Rutherford had not released this property, could the surety on this other fi. fa. compel him to stand aloof from this fund, and make his money out of the property? Nobody will say so. But if the surety cannot do that, neither can he complain, if Rutherford chooses voluntarily to take-his pay rather out of this fund than out of the. property.

Is it to be said, that if Rutherford had held on to the pro-, perty and let go the fund, the surety’s fi.,fa. would have had' the first lien on the fund; whereas, as Rutherford held on to ■ the fund and let go the property, the surety’s fi. fa. had only some inferior lien on the property, being preceded, say by a mortgage on the property ? Be it so; what better right has . the surety to complain of Rutherford for electing to go against the fund, than the holder of the mortgage would have ■ had to complain of him, if he had elected to go against the ■ property ? None. In the eye of the law, the equities of the surety and of the mortgagee would be equal.

[1.] We think that the Court was right in excluding the writing.

It is of no consequence whether the Court was right or wrong in ruling out Hunt’s evidence. The plaintiff in error had already proved by Samuel Jones, the matter to which he • wished to examine Hunt. And there was no motion for a new trial. It is to be presumed that this decision, if wrong, did the plaintiff in error no harm. There was no conflicting evidence on this point.

It is a general rule of evidence, that if the effect of a witness’ testimony will be to create or to increase a fund in, which he may be entitled to participate, he is incompetent. (Phil. Ev. Cowen & Hill’s Notes, note 1081; House vs. Justices, decided at Macon, June Term, ’56.)

[2.] It seems that if these fi. fas. of Rutherford’s had been out of the way, the fund would have gone in satisfaction of a fi. fa. against the same defendant, on which Cox, the Sheriff, had made himself liable. Cox, therefore, was, according to the above-stated rule, an incompetent witness on the score of interest.

And if he was not competent as a witness, still less could his sayings be testimony.

[8.] “ A levy upon real estate is not prima facie evidence of satisfaction; and although unaccounted for, does not extinguish the judgment.” Deloach & Wilcoxson vs. Myrrick, (6 Ga. 410.)

When the levy is on personal property, the rule is different. Newton vs. McLendon, (6 Ga. 392.)

Therefore, the Court did not err in admitting Rutherford’s. fi- fas-

[4.] According to the Judge’s certificate, only such of the sayings of the defendant in fi. fa. as were made at a time when it was against his interest to make them, were admitted in evidence. And such sayings are admissible in evidence. (Ivat vs. Finch, 1 Taunt. 141; 1 Phil. Ev. 257; Ross & Leitch vs. Horne, decided at Macon in June, 1856; Smith vs. Cox, do.)

We affirm the decisions of the Uourt below.