Zackowski v. Jones , 20 Ala. 189 ( 1852 )

DARGAN, C. J.

It appears that the plaintiff bought a stock of goods from Wolf & Lacks, and afterwards the defendant, as sheriff of Dallas, levied several attachments upon ■them, as the property of Wolf & Lacks. The plaintiff brought trespass against the sheriff, and to prove the fairness of the sale of the goods to him, introduced the deposition of his vendors. The defendant objected to this evidence, on the ground that the statute of 1845, prohibiting defendants in execution from giving testimony upon the trial of the right of property, applied to this case, and excluded the witness. The court sustained the objection, and the plaintiff excepted.

It is difficult to perceive why it should be that the witness must be held incompetent under the statute, if the plaintiff had interposed a claim to the goods, under the statute to try the right of property, but to allow him to testify, if the plaintiff saw fit to select his common law remedy. Yet the construction placed on this statute is, that being in derogation of the common law, it excludes the defendant in the execution only upon the' trial of the right of property as allowed by our statute, but does not affect his competency as - a witness in any other manner. Dearing v. Windham, 11 Ala. 204; Yarborough v. Moss, 9 Ala. 390; Brumby v. Langdon & Co., 10 Ala. 747. We are not disposed to disturb the construction that ,has been placed on this act, and consequently hold that the .witness was not incompetent on that ground.

Other; reasons have been assigned in the argument why he should have been excluded, but it is sufficient to say, that we can look alone to the ground of objection made in the court belo.w; it was on tbis only the court acted, and to this must we be confined. But it may not be improper to say, that as the case is now presented to us we see no reason why the witness should be excluded.

The declaration of Wolf, one of the vendors, made prior to the sale, respecting his indebtedness to the plaintiff, was properly rejected; such declaration formed no part of the res gestae.

Let the judgment be reversed, and the cause remanded.