Hooper v. Edwards , 20 Ala. 528 ( 1852 )

DARGAN, C. J.-

We think it was clearly admissible to prove what Edwards said to Thornton, at the time he gave him the executions and appointed him his agent to pursue Mangham, What he then said was not mere declarations, or admissions, unaccompanied by acts material to be considered on the’investigation of this cause. But on the contrary, they were declarations inseparably connected with material acts, and served to elucidate and explain them. Our reports abound with decisions showing that such declarations are admissible as part of the res gestae. Williams v. Shackelford, 16 Ala. 318; Tompkies v. Reynolds, 17 Ala. 109; Mawhinney & Smith v. Thompson, ib. 362; McBryde & Wife v. Thompson, 8 Ala. 650; Yarborough v. Moss, 9 Ala. 382; Babcock v. Huntington, 9 Ala. 869.

But we think it equally clear that the court did err, in permitting the witness Johnson to state what Edwards, the garnishee, said to him in 1849, respecting his intention to pay the debt of Crews if there should be left in his hands a surplus of the funds of Mangham. What Edwards then said was a mere declaration, made after this suit was pending, and not connected with any fact or act whatever. To allow such declarations, would be to enable parties, -even after suitbvught, to make testimony by their own declarations. No rule of law will justify the admission of such declarations.

As the judgment must be reversed for this error, we do not deem it necessary to examine the instructions given by the court to the jury with particularity, for the case is of that description that it is by no means certain that upon another trial it will be presented in exactly the same phase. "We however think it not improper to suggest the proper inquiries that should have been submitted to the jury, according to the evidence as contained in this bill of exceptions.

If the jury should believe, that the contract entered into between Mangham and the agent of Edwards is valid, according to the principles heretofore decided in this case, they then should inquire and ascertain, what debts due by Mangham Edwards assumed to pay in consideration of the two slaves, Dan and Eranky. They should further inquire, whether Edwards agreed to pay these debts, irrespective of the value of Henry, whom Edwards had in his possession by virtue of a levy made under the writ of attachment in favor of Reese; or whether it was the understanding that the value of Henry should be applied to those debts, and that in consideration of the other two slaves, Edwards was to pay the residue of the debts left unpaid, after applying the value or proceeds of Henry to their payment. If they should find that the contract was, that Edwards agreed to pay the debts irrespective of Henry’s value, then he would be liable to the plaintiff to the extent of Henry’s value; but if he agreed to pay the debts, qr the balance of them, after applying the proceeds of Henry to their extinguishment, then he would not be liable on account of Henry. They should also inquire, whether the contract embraced the wagon and other articles of property; if it did not, then Edwards must be liable for the wagon and other articles of property, unless they were levied on and sold to satisfy other debts than those agreed to be paid by Edwards. I have suggested the foregoing as the points of inquiry that will probably arise upon another trial. The testimony, however, may vary them, and the court must be governed by the evidence as it shall appear upon the trial.

Let the judgment be reversed, and the cause remanded.