Spence v. McMillan , 10 Ala. 583 ( 1846 )

GOLDTHWAITE, J.

1. To ascertain whether the declarations of Ware in this case, were admissible as evidence, it is proper to look at the surrounding circumstances. It will be seen he had previously been arrested and committed to jail on a charge of slave stealing. At this time, although the money was not in his actual' possession, yet those who took him asserted no title, and it was committed to the keeping of the defendant, in common with the other property found upon Ware, or in his possession. Wherever the true title was, it seems clear the defendant must be considered as the mere bailee of Ware. In this view his admissions that the plaintiff was entitled to the money, and his consent that the defendant should surrender the money, was sufficient to invest the plaintiff with the title, as against the defendant, who certainly has no claim whatever, and against whom the title of Ware is entirely sufficient.

It is possible there is some difficulty under the proof, in arriving at the conclusion the money originally belonged to McMillan, and therefore, in this aspect, he might not be entitled to maintain detinue; but in the one first noticed, this difficulty does not arise. If Ware admitted the right of the plaintiff to the specific money contained" in the bag, and consented it should be delivered to him, it does not lie with the defendant to say this shall not be done. If the case was put, that Ware was the owner of the money — and there is nothing in the case to show that any one besides the plaintiff had a better title — it cannot, we think, be doubted, that his title would pass by any sufficient contract, and we consider the admission of the right of the plaintiff to the money, with the consent that the defendant should so deliver it, as transferring whatever title Ware possessed. As Ware’s title was preferable to any which the defendant has asserted, there was nothing to bar a recovery. The general rule is, that the decía-? rations of persons in possession of chattels, are always admissible as evidence, with respect to the title being in some other person, but it is difficult to say in advance, that the rule is applicable to all declarations. Numerous cases are found in the books sustaining this rule, and many of them are cited in the briefs of the counsel. One entirely applicable to the facts presented here is, Willers v. Farley, 3 C. & P. 395, where it was held, the declarations of a debtor remaining in possession of goods after a sheriff’s sale — these being afterwards seized and sold under another ji. fa. — were admissible to show the first sale was merely colorable. Whether the declarations of Ware are to be considered as admitting the original title of the plaintiff to the money, or as a transfer of that which he was invested with, in our judgment, they were alike admissible.

2. It is insisted, however, that as Ware himself was present, and might have been examined, the declarations for this reason should have been excluded. The rule is, that such declarations of Ware, are evidence as part of the res gestee attending the property, and as such are proveable as distinct facts. [Rice v. Bancroft, 11 Pick. 469.]

3. It is not shown that the defendant was entitled to any compensation, for keeping the money or slave, but if such was the case, he would not be allowed to defend this suit on this point, unless he insisted on the claim for compensation, as the only excuse for failing to deliver it when it was demanded.

It is said, when goods are pledged, the .defendant cannot show this fact under the plea of non detinet, but must plead it specially. [1 Chit. Pl. 485.] In analogy to this, it would seem reasonable that the assertion of a lien should be disclosed in the same manner, but however the rule of pleading may be, and independent of it, the refusal to deliver when a demand is made, is evidence from which it may be inferred, the defendant denies the title of the plaintiff, unless the refusal to deliver is put expressly on the ground of the lien supposed to exist. In connection with this subject, see Cross on Liens, 53, 54, and cases there cited.

4. If the money was sought to be recovered on the sole ground, that it belonged to the plaintiff, independent of any transfer of the title by Ware, when in jail, it would be difficult to sustain the charge in relation to the two ten cent pieces, on any other ground than the maxim de minimis, &c., but instead of placing oür decision on this ground, we refer to what is said in the first paragraph of this opinion, where we have endeavored to show, the declarations of Ware might be considered as a transfer of his interest, whatever that was, in the money, and in this point of view, the inaccuracy of the charge, if thus considered, is entirely unimportant.

On the whole, we are satisfied there is no error in the record. Judgment affirmed.