Watson v. Tool & Nicholson , 36 Ala. 13 ( 1860 )

STONE, J.

All the questions presented by the record in this-case, arise on the admissibility of rebutting evidence. They are all of kindred character. Each piece of evidence which was admitted against the objection of defendant, tends to pr'ove some act done after the attachment was levied, and after this suit had been instituted. The questions may, then, in the main, be considered together.

The attachment was issued against the effects of W. Nicholson. It was levied on property belonging, as it is asserted, to Tool and 0. Nicholson. The whole controversy in the circuit court hinged on the inquiry, had W. Nicholson sold the effects levied on, to the plaintiffs, before the attachihent was levied ? and was that sale bona fide, of fraudulent ? This inquiry necessarily opened a wide field for exploration.

For the defendant, it was competent to p>rove every fact and circumstance which tended to show that the trausacaction was not in good faith, or was in secret trust for the benefit of W. Nicholson, the grantor. In this connection, wo cannot say that the circuit court permitted the examination by defendant to take too wide a range. The insolvency of W. Nicholson — the property and means of Tool and 0. Nicholson — the haste attending the consummation of the contracts — the fact that, reserving only the property which the law exempted to him as the head of a family, W. Nicholson sold.and parted with every piece and parcel of property which he owned, including lands, houses, slaves, carriages, house-servants and house-furniture, and retained the possession of much of it, as he had theretofore done; and all this during a few consecutive days, and when the sheriff was levying upon portions of his property under attachments — these necessarily furnished grounds for argument against the validity ot the transfer; grounds from which, if unexplained, a jury might be urged to infer that there was a secret trust. They all tended, by cotemporanoous conduct, to shed light on the transaction which was directly in issue.

But we need not inquire whether each of these several transactions was legal evidence for defendant. The court admitted them ; and under a well settled rule of this court, if illegal evidence be given in against a party, he will be permitted to rebut that evidence. — Nelson v. Iverson, 24 Ala. 9 ; and see authorities on the brief of counsel.

[2.] We think the rebutting evidence introduced by plaintiffs, and objected to by defendant, was, in each instance, admissible. It tended proximately to prove two propositions, either of which justified its reception: first, that Tool and <3. Nicholson possessed the requisite means to purchase and pay for the goods; and, secondly, it tended to rebut the imputation that' there was a secret trust tor the benefit of W. Nicholson. The fact that these-transactions occurred post litem motam, weakened their influence for the latter purpose; hut this was the proper subject of a charge. We have, on this record, to deal only with the relevancy of the evidence. Its sufficiency and effect are not presented for our consideration. — Pennington v. Woodall, 17 Ala. 687; McCaskle v. Amarine, 12 Ala. 17, 24; Lanier v. Br. Bank, 18 Ala. 625.

Judgment affirmed.