Fralick v. Presley , 29 Ala. 457 ( 1856 )

WALKER, J.

This court decided, in the case of Kelly v. Brooks, 25 Ala. 523, that the party against whom a witness has been introduced and examined in chief, has a right to examine him “fully as to his knowledge touching any and all facts material to the case.” W0 think, the rule thus laid lown is sustained by principle and a preponderance of authority. Winston v. Moseley, 2 Stew. 137 ; Webster v. Lee, 5 Mass. 334 ; Merrill v. Berkshire, 11 Pick. 269; Jackson v. Varick, 7 Cowen, 238 ; Varick v. Jackson, 2 Wendell, 166 ; Pulton Bank v. Stafford, 2 Wendell, 438; Philadelphia and Trenton R. R. Co. v. Stimpson, 14 Peters, 448 ; Ployd v. Burard, 6 Watts & S. 75.

In the accustomed order of proceeding, the cross-examination should immediately follow the direct examination. The court may, however, postpone the cross-examination ; but such postponement should never .be extended to the injury of the party having a right to cross-examine. In the exercise of its discretionary control over the progress of the trial, the court cannot postpone the cross-examination of the plaintiff’s witness, against the wishes of the defendant, until after the plaintiff bas made out a prima-facie case and closed, without trenching upon the right of cross-examination. The cross-examination may make it indispensable for the plaintiff to enlarge the area of his testimony; and in doing so, he may be compelled to introduce as his witnesses those whom the defendant would otherwise be compelled to introduce.

The defendant claimed the negro sued for as the guardian of two wards, who derived title from one Fralick. During the possession of the slave by Fralick, and before the title was derived from him under which the defendant claimed, he made declarations favorable to the plaintiff’s title, and conducing to show that the slave had been conveyed by deed of gift to the female plaintiff, which deed of gift was in his possession. Fralick’s declarations, thus proved, were admissible against the defendant, upon the ground that they were made in disparagement of his title, by one through whom the defendant claimed, and before the title set up by the defendant passed from the declarant. — Jennings v. Blocker, 25 Ala. 415 ; Cowen & Hill’s Notes to Phillipps on Evidence, part I, p. 274.

So far as the declarations above mentioned were mere statements of the contents of the deed, they were certainly inadmissible, unless the proper predicate for the introduction of secondary evidence was laid. Parol admissions are competent evidence only of those facts which it is permissible to prove by parol. — Hare v. Robinson, 18 Ala. 105. But in this case the predicate was sufficiently laid. The existence of the deed was established by the admission of him under whom the defendant claimed. In the same manner, it was proved, that he under whom the defendant claimed had possession of the deed in his lifetime, and admitted its execution. It was farther proved, that he declared his intention to keep the negro for the female plaintiff, until her marriage, and that he died before her marriage. The defendant in this suit is one of his own executors, and had been notified to produce the deed. It is most probable from the facts that the deed was in the possession of defendant’s testator, who intended to retain the slave, the title to which was evidenced by the deed, for the plaintiff until she married, and that the plaintiff did not marry until after his death, that the deed was among the papers of the deceased, and. passed into thé hands of his executors. The degree of probability that the, deed went into the possession of the executors, is not very high ; but it is -not requisite to attain a very high degree of certainty, w|ien the deed is so ancient as the one in question. The possession of one of the executors, is the possession of both; and therefore either one of them has it under his control. It was, then, in the power of the defendant to produce the deed ; and upon his failure to do so on due notice, it was competent to prove by parol its contents. The authorities, cited below fully sustain our positions. — Whitford v. Lutin and others, 25 E. C. L. 179, (10 Bing. 395); Beckwith v. Benner, 25 E. C. L. 595, (6 Car. & Payne, 681); 1 Greenleaf’s Ev. § 598 ; 5 Rich. 372.

This court has, upon sound principles," settled the law to be that the annual hire is the measure of damages in an action of detinue for slaves. — Miller v. Jones’ Adm’r, 26 Ala. 247 ; Carrol v. Pathkiller, 3 Porter, 279. Whenever money is due, the rule adopted in this State allows interest to compensate for the withholding of the money. Interest is the incident to the debt.— Cheek v. Waldrum and Wife, 26 Ala. 152. The annual hire is allowed as compensation for the detention of a slave from his owner. It is the incident to the right to the property., Hire of slaves in detinue is analogous to interest on the value of property in trover; and it would be quite as reasonable in trover to allow interest on interest each year, as to allow interest on the annual hire in an action of detinue. To make interest incident to the hire, would be to add one incident to another. In our opinion, the court' erred in its direction to the jury as to the allowance of interest on the annual hire of the slave sued for. The damages in this case are for the detention of the slave during the entire period up to the trial, and not for the detention during separate and distinct intervals of each year embraced in that period; and the incidental .right to the damages cannot be divided into as many distinct and independent claims, as there are years, in the period of detention, for the purpose of carrying interest.

We know of no statute requiring the deed of gift, under which the appellees claimed, although it might create an estate for life with remainder over, to be recorded, notwithstanding: it was made in another State. The court, therefore, did not err in the charge asserting the proposition, that the appellees’ right of recovery was not at all affected by the omission to have the deed recorded in this State.— Swift v. Fitzhugh, 9 Porter, 39; Catterlin v. Hardy, 10 Ala. 511.

The judgment of the court below is reversed, and the cause remanded.

Bice, C. J., haying been of counsel before his election, did not sit in this case.