Yarborough v. Moss

GOLDTHWAITE, J. 1. We think there is error in one of the points ruled by the Circuit Court, and as the judgment will be reversed for this, we shall consider such other questions only as will probably again arise. The error was in rejecting evidence of what the claimant said in explanation of the delivery of the slaves to the sheriff, under other executions. The court below seems to have considered him as entitled to show, this delivery was coupled with the assertion of title in himself, but only permitted the witness to state the declarations to this effect. It will be seen, the plaintiff had then given the fact of this delivery in evidence ; and it certainly is a circumstance from which the inference could be drawn, that the title of the claimant was simulated; it was therefore important to repel this inference and every thing said at the time in explanation of the delivery, was competent evidence as a part of the res gestee. As evidence, the mere assertion that the party claimed title, would scarcely do away the inference which might be drawn from a voluntary delivery; but if the entire declaration was received, it might appear that the claim of title would be perfectly consistent with the delivery — as it might be where the title had accrued after the lien of the first executions had attached, but previous to the lien of the attachment. If the j plaintiff insists on this delivery for any purpose as evidence, j he is bound to take it with all the explanatory declarations j and circumstances, as they constitute a part of the trans.action itself. [See Cowan and Hill’s Notes, 585, 589.] * [388] 2. The act of 1845, 136, § 2, provides that the mortgagor, or defendant in execution, in all cases of the trial of the right of property, under that 'or the existing laws, shall be incompetent to give testimony between the parties. It is evident the object of this enactment is, to change the rule of decision which previously obtained in this State, and by which persons in this relation were considered as competent witnesses. This object would be attained but partially, if the enactment was held not to extend to suits of that description then in progress ; nor is there any reason to exclude its operation in such suits, which would not also go to its exclusion whenever the witness was called to testify of a transaction anterior to the statute. To say the least of it, the effect of such a construction would be some singular anomalies. It is true, the general rule is, that statutes shall be so construed as to have a prospective effect only, (Philips v. Gray, 1 Ala. Rep. 226; Boyce v. Holmes, 2 Ib. 54;) but it is entirely within the power of the legislature to give a retrospective effect to any law which does not affect the obligation of a contract. [Elliott v. Mayfield, 4 Ala. Rep. 417.] The case just cited, as well as Bartlett v. Lang, 2 Ib. 401, are instances in which we held particular statutes to have a retrospective effect, so far as particular remedies were concerned. The legislature in this enactment has seen proper to declare that a particular means of obtaining evidence shall be abolished. In our judgment no one can be said to have a vested right in any description of evidence ; but if such a right was supposed to exist, it is no more affected by the statute than it would be if the acts relating to depositions, or that giving ing effect to written instruments, without proof, were repealed. [Jones v. Scott, 2 Ala. Rep. 58.] Our opinion is, that the act referred to was intended to cover all trials of this description, and consequently this .matter was correctly ruled jn the court below. 3. It appears, this claim was instituted after a venditioni exponas had come to the sheriff’s hands, requiring him to sell slaves previously levied on by virtue of an ancillary attachment. The statute (Dig. 57, § 11,) authorizes the interposition of a claim when the levy is by virtue of an attachment, and directs the same proceedings shall be had as [389] when the levy is under a fi. fa. Whether th]s extends so far as to warrant the giving of damages for delay, previous to the issuance of a vend. ex. we need not determine; but when the claim is interposed after that writ has come to the sheriff, it is quite clear that the suit is in all aspects equivalent to one originated upon afi. fa. 4. In practice, it has always been considered, the recitals in a fi. fa. are prima facie evidence of the’ plaintiff’s right; and it has frequently been held in this court, that the claimant would not be permitted to question the regularity of the the execution. [Bettis v. Taylor, 8 Porter 564; Hooper v. Farr, 3 Porter, 401; Stone v. Stone, 1 Ala. Rep. 582; Harrell v. Floyd, 3 Ib. 16.] The question at issue between the parties to suits like this, is the right of property at the time of the levy, and so far as the matter of indebtedness is involved, that is established by the attachment. [Butler v. O’Brien, 5 Ala. Rep. 317.] If it is necessary for the plaintiff to go beyond this, and show when, or how, the debt was created, it is possible he would be required to produce other evidence. Beyond this, at this time, it is unnecessary to go, and we purposely decline to consider to what extent the recitals in the pleadings would be evidence. These conclusions show all the positions ruled by the court with reference to the admission in evidence of the attachment and venditioni exponas are free from error; as are also the refusals to charge as requested, and the charges given upon the effect of those writs, and the defect of other proof of the indebtedness of the defendant in attachment. 5. So far as this particular levy was in question, it seems the defendant in attachment was not in possession when the levy was made; to connect the slaves with, and refer the possession of the sheriff to him, the evidence of the levies by the other executions was probably given. In this view we think the production of the writs was unnecessary, as the levy is a distinct act, which derives no additional effect from being indorsed on the writ. It was the fact of the levy, and not its indorsement on the writ, which was the matter to be shown. 6. It was immaterial, from any thing stated in the bill of exceptions, to prove the notoriety of the sale under which [390] the claimant made title, as this could not sustain it, if invalid, or defeat it, if good. At most, it would be only hearsay, and was properly rejected. 7. As to the question which the Court permitted the plaintiff ’s witness to answer in explanation of the judgment which the claimant was supposed to have recovered against the witness for rent, it is merely necessary to say that if the objection was to it as a leading question, the exception for that cause ought to be specific ; [Cowen & Hill’s Notes, 725;] and it may even admit of doubt whether this is matter to reverse a judgment, inasmuch as it is discretionary with the Court, in many cases, to allow a leading examination. [Blevins v. Pope, 7 Ala. 371; Stratford v. Sanford, 9 Conn. 275.] Independent of this, the question seems to have been proper enough to repel the presumption which otherwise might arise, from the fact of a judgment which, whatever is its effect, as between the parties to it, did not conclude the plaintiff in this suit. 8. The rule with respect to the substitution by the Court of its own language, instead of that in which a correct charge is asked, is sufficiently laid down by us in Maynard v. Johnson, 4 Ala. Rep. 116. When, however, the Court asserts that the charge was given substantially, it would be hypercritical for us to infer that it was given in terms which could mislead the jury. In this connexion the fifth charge refused may also be noticed, but merely to state that its refusal would not bring this case within the decision just cited, as the proper charge was afterwards given by the Court, and the one requested assumes a fact of which there is no evidence. Although this fact was immaterial, it was a sufficient reason to refsue the charge as asked. The proper charge being subsequently given, we will infer that the one requested was refused, as assuming facts not disclosed in evidence. 9. We-shall not consider the other charges in detail. As no question of adverse title, properly so called, is raised by the proof, the Court properly refused to give those which were asked in this connexion ¡ and correctly charged the jury, that if the claimant’s purchase was bona fide, they ought to find for him ; but if intended to delay the credit [391] ors of the defendant, then they ought to find the property subject. For the error we have noticed in the first paragraph, the judgment is reversed, and the cause remanded.