Clealand v. Huey , 18 Ala. 343 ( 1850 )

BARGAN, C. J.

It cannot be doubled, but that Barclay was a competent witness. Five dollars only was bequeathed to him by the will of David Walker, and the administrators, with the view to render him competent, paid him this legacy in open court. This payment removed the objection of interest. A legatee, who has been paid by the executor, may be called as a witness by him, for his interest is then considered too remote and contingent to render him incompetent. — Greenl. Ev. § 408; Hall v. Alexander, 9 Ala. 219; Clarke v. Gannnon, Ry. & M. 31.

2. Hale was also entitled to a legacy of five dollars, which was paid by the executors, with the view to render him competent. This payment removed the objection of interest growing out of his legacy, but the plaintiff in error contends that, as he W'as the husband of one of the daughters of the testator, the presumption is that he is interested in right of- his wife. The rule is, that competency is presumed, until the contrary is clearly shown, and the mere fact, that the witness has intermarried with the . daughter of the testator, does not show that he is legally interested in a suit, brought against his executors, in their representative character. Had the deceased died intestate, then, under the law of distribution, his daughter would haye been legally interested, but when it was shown that the deceased had executed a will, and bequeathed to the husband of his daughter five dollars, a legal presumption of further interest in right of his wife could not arise; and if in fact a legacy had been bequeathed to the daughter, it should have been shown by the party, objecting to the competency of the hushand as a witness.

3. Nor did the court err, in permitting the witness, Barclay, to testify to what the deceased witness stated on the former trial of this cause. The rule on this subject 13, that if the witness can state the substance of the whole of the testimony given by the deceased witness, he may be permitted to testify, and he cannot be required to repeat his precise language. — Gildersleeve v. Carraway, 10 Ala. 260; Davis v. The State, decided at the last term, and cases there cited. But it is urged that the former trial was between the plaintiff and the defendant’s testator, and, therefore, the parties are not the same; that the evidence of what the deceased witness stated should have been rejected on this ground. The admissibility, however, of such testimony does not depend on the precise nominal identity of the parties to the suit, for if the second trial of the same subject matter is between those, who represent the parties to the first, by privity in blood or estate, the evidence is admissible. — Greenl.Ev., vol. 1, § 164; Wright v. Tathun, 1 Ad. & Ellis, 3; Jackson v. Lawson, 15 Johns. 544. Neither could any part of the testimony, given by the deceased witness upon the former trial, be said to be irrelevant. The object of introducing this testimony was to contradict what the witness for the plaintiff had stated. He had sworn that when he went to the house of David Walker, the grandfather, he saw in his possession the carriage that had been sold by Nichols, Poor & Hall; and to impeach this portion of the testimony of Poor, the deceased witness had sworn that at the time Poor visited his grandfather, the only carriage on his place was one that he had bought for him in Montgomery, and not from the payees of the note. For the purpose of contradicting the testimony of Poor, the evidence of the deceased witness was clearly relevant.

5. It is also insisted that the declaration of David 8. Walker, whilst he was in the possession of the carriage, that it was his own, was inadmissible. It has been so often decided by this court, that the declarations of one in possession of property, explanatory of his possession, and showing the character or extent of his claim to it — as that he held in his own right, or as agent for another, or that he claimed the absolute right, or a less estate in the property — are admissible, that it is needless to do more than refer to some of the cases. — McBryde & Wife v. Thompson, 8 Ala. 650; Mawhinney & Smith v. Thompson, 17 Ala. 362, and cases there cited; Nelson v. Iverson, 17 ib. 217; Abney v. Kingsland, 10 Ala. 355.

6. Nor do we think the court erred in admitting the record of the suit against David S. Walker as evidence. One of the questions submitted to the jury was, whether the note sued on was in truth the note of David S. Walker or of David Walker, the grandfather. That suit had been commenced against David S. Walker, and a judgment recovered against him on the note, was certainly a circumstance admissible as evidence to be weighed by the jury. Independent, however, of this view, the pleadings in this cause admitted the recovery of this judgment; it was therefore unnecessary to produce the record, but as its production proved nothing more than was admitted by the pleadings, it could not possibly work an injury to the plaintiff.

There is no error in the record, and the judgment must be affirmed.

Chilton, J., not sitting.