Jones v. Nirdlinger , 20 Ala. 488 ( 1852 )

CHILTON, J.

After a careful examination of this case and the authorities cited, we are satisfied that the court below properly refused to exclude the declarations of the slave.

The master sought to recover money which the slave had paid to the defendants. The proof showed that the slave hired his own time from his master, and was permitted by him to make contracts for himself, and to receive what he made. It therefore became necessary to ascertain the nature of this payment, in order to determine the rights of the parties growing out of it; for, although the slave and the property he may possess, alike belong to the master, still it is settled, that if the latter permit his slave to retain and dispose of a .portion of his earnings, he cannot recover them back, Skanklin v. Jones, 9 Ala. Rep. 271. In order, then, to ascertain tbe character of tbe payment, it was indispensable to give evidence of tbe contemporaneous parol agreement, in compliance with which the money was paid. All the concomitant circumstances tending to elucidate and explain the payment, and to show on what account it was made, were properly admissible as parts of the res gestae; 1 Greenl. Ev. § 108; Rowland v. Walker, 18 Ala. Rep. 749, and cases there cited.

The admissions of the slave, and the proposition made by him to pay the money, as based upon them, and the actual payment on the acceptance of the proposal, are parts of one transaction, and, as contemporaneous connected circumstances, are indispensable to show in what manner the slave parted with the money sued for, and the character in which the defendants received and hold it. There is nothing in the case of Mauldin & Terrill v. Mitchell, (14 Ala. Rep. 814,) which militates against the view here taken; for in that case it was held that the declaration of the slave was not connected with any act done, and could not, therefore, have constituted part of it. See 2 Rich. R. 106.

Let the judgment be affirmed.