Haynes v. McRae

• Decision Date: 18 May 1893
• Citation: 13 So. 270,101 Ala. 318
• Parties: HAYNES, SHERIFF, ET AL. v. MCRAE.
• Court: Alabama Supreme Court

13 So. 270

101 Ala. 318

HAYNES, SHERIFF, ET AL. v. MCRAE.

Supreme Court of Alabama

May 18, 1893

Appeal from circuit court, Lowndes county; John Moore, Judge.

Trespass by F. D. McRae against W. E. Haynes, sheriff of Lowndes county, and the sureties on his official bond, to recover damages for the wrongful seizure of a stock of goods. There was judgment for plaintiff, and defendants appeal. Affirmed.

There was only one assignment of error, and the facts having reference thereto are sufficiently stated in the opinion.

Roquemore White & Dent and Thos. H. Watts, for appellants.

Tompkins & Troy, for appellee.

COLEMAN J.

Pollock & Co. sued out an attachment against McRae Bros., which was levied by Haynes (the sheriff) upon a stock of goods claimed by F. D. McRae. The present action was brought by F. D. McRae against the sheriff et al. to recover damages for an unlawful seizure of the goods. On the trial the plaintiff, F. D McRae, testified as to the purchase of the goods from McRae Bros., the circumstances of the transaction, and the consideration paid by him for the goods. The two members of the firm of McRae Bros. were present in court as witnesses during the trial, but were not examined. In the argument of the facts before the jury the counsel for the defendant insisted that the failure of the plaintiff to introduce and examine the McRae Bros. was a circumstance of itself which the jury was entitled to consider as unfavorable to the plaintiff, etc. After the argument was closed the court, at the request of the plaintiff, charged the jury that "the fact of J. S. McRae and P. C. McRae not being introduced as witnesses cannot be considered against the plaintiff in this case." The giving of this charge is the only error assigned. There is a rule of evidence to the effect that a party who has it in his power to produce the best evidence which he withholds, or leaves unexplained a material question of fact by an intentional withholding of explanatory evidence, such conduct may give rise to unfavorable inferences against him; but this rule of evidence does not apply when the evidence withheld is of no higher degree than that introduced, is not explanatory of any fact left in uncertainty, but is purely cumulative.

So far as is disclosed by the record, the testimony of the witnesses not examined would have been merely cumulative. They were present in court, and subject to the call of either party. The...