1 Ala. 371 (Ala. 1840), Chisholm v. Newton

Citation1 Ala. 371
Opinion JudgeGOLDTHWAITE, J.
Party NameCHISHOLM, USE OF BIGELOW & CO., v. NEWTON & WILEY.
AttorneyTHORNTON, for the plaintiff in error,
CourtSupreme Court of Alabama

Page 371

1 Ala. 371 (Ala. 1840)

CHISHOLM, USE OF BIGELOW & CO.,

v.

NEWTON & WILEY.

Supreme Court of Alabama

June Term, 1840

Writ of error to the County Court of Sumter County.

ASSUMPSIT by Chisholm to the use of Bigelow & Co, on a promissory note, payable to Chisholm or order Pleas: Non assumpsit; want of consideration; and gaming.

At the trial, evidence was given in behalf of the defendants that Chisholm had admitted that he obtained the note from the defendants for the purpose of its being bet on a horse race, which, however was never run; this admission was made after the commencement of the suit, and after it had been once continued. The court instructed the jury, that if the note was obtained by Chisholm and given by the defendants for this purpose, it was void, and a verdict in that event ought to be found for the defendants. To the admission of this evidence, and to the instructions of the court, the plaintiffs excepted, and assign error on the exception.

THORNTON, for the plaintiff in error, argued: First, That the admissions of the nominal plaintiff were improperly admitted, as he had no interest in the suit, when they were made, and might have been a witness. Frear v. Evertson, 20 John, 142; 5 John. 417; 4 Mass. 156; 15 Mass. 224; Aik. Dig. 262. Second, That as the note was not bet, it was not void under the statute. Aik. Dig. 209.

GOLDTHWAITE, J.

The general principle on which the competency of admissions as evidence rests, is, the interest which the party making them has in the suit, or its subject matter. From this it would seem that the admissions of one who has no interest in a suit, ought not to be allowed to control it. It is said by Mr. Starkie in his compilation of the rules of evidence, (2 Starkie on evid. 40) that the admission of a party on the record is always evidence, though he be but a trustee for another, and although it appear from the admission itself that he is such; for this he cites the case of Bowerman v. Rodenius (7 Term, 663.) This case when examined, does not support the rule in its great extent, as stated by the commentator. It was an action brought in the name of one person, when the actual interest was in another; to prove the interest of the latter, in order to let in an admission made by him, a letter from the nominal plaintiff was offered, which the judge at nisi prius rejected, but which was afterwards ruled by the Court of King's Bench to be competent...

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8 practice notes
  • 10 Ill. 67 (Ill. 1848), Dazey v. Mills
    • United States
    • Illinois Supreme Court of Illinois
    • Invalid date
    ...On the other hand, it is held in the cases of Frear v. Evertson, 20 Johns. 142, Hackett v. Martin, 8 Greenl. 77, and Chisholm v. Newton, 1 Ala. 371, that the declarations of the nominal plaintiff, made after he has parted with his interest in the cause of action, are not admissible in evide......
  • 20 Ala. 662 (Ala. 1852), Pharis v. Leachman
    • United States
    • Alabama Supreme Court of Alabama
    • Invalid date
    ...made at a time when he had no real interest, were inadmissible to charge the party actually in interest. Chisholm v. Newton & Wiley, 1 Ala. 371; Copeland & Lane v. Clarke, 2 Ala. 388; Brown v. Foster, 4 Ala 282; Head v. Shaver & Adams, 9 Ala. 793. The case of an executor or admi......
  • 32 Ala. 99 (Ala. 1858), Thompson v. Drake
    • United States
    • Alabama Supreme Court of Alabama
    • Invalid date
    ...his cestui que trust.--Roberts v. Trawick, 13 Ala. 68; Graham v. Lockhart, 8 Ala. 10; Sykes v. Lewis, 17 Ala. 261; Chisholm v. Bigelow, 1 Ala. 371; Head v. Shaver, 9 Ala. 793; Brown v. Foster, 4 Ala. 285; Copeland v. Lane, 2 Ala. 388; Roden v. Murphy, 10 Ala. 804. But it would be competent ......
  • 31 Ala. 203 (Ala. 1857), Wittick v. Traun
    • United States
    • Alabama Supreme Court of Alabama
    • Invalid date
    ...& M. (Eng.) 51. WM. M. BYRD, contra, cited Bunyard and Wife v. McElroy, 21 Ala. 311; Roberts v. Trawick, 13 Ala. 68; Chisolm v. Newton, 1 Ala. 371; Brown v. Foster, 4 Ala. 282; 2 Ala. WALKER, J. It is clear upon reason and authority, that the declarations of Henry Traun are not made adm......
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9 cases
  • 77 So. 356 (Ala. 1917), 7 Div. 815, Alabama Power Co. v. Hamilton
    • United States
    • Supreme Court of Alabama
    • November 15, 1917
    ...not the right to control the recovery by the infant to his prejudice ( Waugh v. Emerson, 79 Ala. 295, 297). As early as Chisholm v. Newton, 1 Ala. 371, this court held that the admissions of a nominal plaintiff, made after the commencement of the suit, cannot be given in evidence to defeat ......
  • 10 Ill. 67 (Ill. 1848), Dazey v. Mills
    • United States
    • Supreme Court of Illinois
    • Invalid date
    ...On the other hand, it is held in the cases of Frear v. Evertson, 20 Johns. 142, Hackett v. Martin, 8 Greenl. 77, and Chisholm v. Newton, 1 Ala. 371, that the declarations of the nominal plaintiff, made after he has parted with his interest in the cause of action, are not admissible in evide......
  • 20 Ala. 662 (Ala. 1852), Pharis v. Leachman
    • United States
    • Alabama Supreme Court of Alabama
    • Invalid date
    ...made at a time when he had no real interest, were inadmissible to charge the party actually in interest. Chisholm v. Newton & Wiley, 1 Ala. 371; Copeland & Lane v. Clarke, 2 Ala. 388; Brown v. Foster, 4 Ala 282; Head v. Shaver & Adams, 9 Ala. 793. The case of an executor or admi......
  • 32 Ala. 99 (Ala. 1858), Thompson v. Drake
    • United States
    • Alabama Supreme Court of Alabama
    • Invalid date
    ...his cestui que trust.--Roberts v. Trawick, 13 Ala. 68; Graham v. Lockhart, 8 Ala. 10; Sykes v. Lewis, 17 Ala. 261; Chisholm v. Bigelow, 1 Ala. 371; Head v. Shaver, 9 Ala. 793; Brown v. Foster, 4 Ala. 285; Copeland v. Lane, 2 Ala. 388; Roden v. Murphy, 10 Ala. 804. But it would be competent ......
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