Webster v. Smith , 10 Ala. 429 ( 1846 )

GOLDTHWAITE, J.

1. It is supposed by the counsel for the plaintiff in error, that the statute excluding the defendant in execution as a witness in a claim suit, should be so construed as to also exclude evidence of any admission by him, explanatory of the nature of his title to the thing seized in execution, but we can see no warrant thus to extend its construction. As a general rule, the admissions of one in possession, is proper evidence to explain the nature of that possession. [McBride v. Thompson, 8 Ala. Rep. 650, and cases there cited.] - And the mere circumstance that he is not a competent witness, has never been considered a sufficient reason to exclude this kind of evidence. See cases collected in Cowen & Hill’s Notes, 592. In the present case, the evidence was of the admissions of the defendant in execution, made at a time when in possession of the slave, that he held it under the claimant by hire, and as it seems to us there is nothing here that is inconsistent with what is said by the court in Standifer v. Chisholm, 1 S. & P. 449. There, the evidence went much beyond the nature of the title, and if admitted, would have allowed the party to show by mere declarations, the mode and manner by which the title was obtained. Indeed this case does not differ in principle from what we have so recently held in McBride v. Thompson, 8 Ala. Rep. 650, in which we say, that while it is allowable to prove the statements of one in possession, in explanation of the possession, it is not permissible to show every thing that may have been said by him in respect to the title, as that it was acquired bona fide, and for a valuable consideration. The res gesta, is the possession, and any declarations by the possessor, showing the nature and character of it, is admissible evidence, according to all the cases. The credence to be given by the jury to such testimony, is a matter which we need not consider, though it is evident this depends in a great degree upon the other facts and circumstances, which may be before the jury.

On the whole, we think the evidence was properly admitted. Judgment affirmed.