Mayor of Tuskaloosa v. Wright

2 Port. 230

• Court: Supreme Court of Alabama
• Decided: January 15, 1835
• Status: Published

Opinion

By Mr. Justice Hitchcock :

This was an action of asáumpsit, brought by the defendant in error against the corporate authorities of the town of Tuskaloosa, to recover the sum of one hundred and eighty dollars and forty three cents, which he claimed; it being the amount allowed him by a resolution of the Board of Mayor and Aider-men, upon a final settlement of his accounts as marshal of the town, and which was dated the 5th of September, 1831. The plaintiff read to the jury the entry of the proceedings of the corporation, as it appeared from the record book of their proceedings. The defendant then offered to read from the same record book, the proceedings of the board upon a subsequent day, to wit, the 8th September, 1831, rescinding the first resolution, re-stating his account, and reducing the amount. It appears that the plaintiff was present at the meeting of the board on the 5th, when his account was allowed, and assented to the settlement; but that all the subsequent proceedings were had in his absence, and against his consent.

The Court refused to permit the subsequent proceedings to be read to the jury. The defendant then offered as witnesses to establish their defence, and to prove they were not indebted to the plaintiff, sundry ■witnesses, who, it appeared, were the mayor and aldermen of the town at the time of the above stated transactions, but who were not in office at the time they were offered as witnesses. The Court excluded their testimony, and would not permit them to be sworn. To the exclusion of the above testimony, and the reject ion of the witnesses, a-bill of exeep-tions was taken, and which, is assigned for error here.

It is laid down in 1 Starkie on Evidence, (292,-) that the books of a corporation, containing a register of their public acts, are evidence between the members of the body, or against the body, for they contain the mies and regulations to which they are all subject, and to which all are privy: but, they are not evidence for the corporation against a stranger. This, as a general rule, would undoubtedly apply to this case. But the plaintiff’s counsel contends, that the plaintiff below, having introduced the books, has. thereby made them evidence, as well for, as against the corporation, so far as they relate to the subject matter in controversy, on the ground that the admissions of a party must all be taken together.

The introduction of the books, by the plaintiff below, was confined to the establishment of a contract between him and the corporation, for such the resolution of the board must be held to be. It was a distinct admission of a debt, upon a subject properly within their control, and about which they could bind the body, and the effect of which they could, not impair, by any subsequent revocation by themselves, unaccompanied with the assent.of the plaintiff below. The introduction of it was, therefore property rejected.

But, in the exclusion, of the witnesses, the Court conceive there was error. They were not parties to the suit, at the time they were offered as witnesses, | and it now seems to be admitted, that the inhabitants of corporations and quasi corporations, such as- coun-I ties, towns, parishes, cities, &c. though they may [be collectively interested in a suit, are nevertheless, lcompetent witnesses. This is from the necessity [the case.

a These witnesses were not rejected on the [ground that they were incompetent to impeach the settlement made on the 5th September, hut because they were members of the board at the time of the settlement, and because it must be inferred they were inhabitants of the town when they were called to testify. They are considered by the Court as competent witnesses, and that their testimony should have been received, so far as it might be applicable to the issue before the Court, under the ordinary rules of evidence. For this error, the cause must be reversed and remanded.

1 Day, 35-5 Cowen 416, 1 N. Hamp. R. 273, 1 Johns. 486, and other cases cited by Starkie 145.