Brice v. Lide

RICE, C. J. "Where the deposition of a witness, incompetent upon grounds of public policy or interest, has been taken on notice to the leading attorney of the plaintiff; and that leading attorney, with knowledge of the ground of the incompetency, attended the examination, and cross-examined the witness, without making any objection to the competency, the objection will be [held to have been waived. — McCreary v. Turk, 29 Ala. 244; Brake v. Foster, 28 Ala. 649; Lyde v. Taylor, 17 Ala. 270. It follows, that there was no error in overruling the objection, made on the trial, to the deposition of Mrs. Lyde, the wife of the claimant. The declarations of the defendant in execution, in possession of the personal chattels in controversy, explanatory of his possession — that is, showing that he holds in his own right, or in subordination to the title of another,— are admissible as evidence against the ^claimant. But they are so admissible only upon the ground that they constitute part of the res gestee — that is, they show the manner in which he held possession. His declarations, which go to- establish something beyond that, and to prove facts disconnected with the possession, are not admissible against the claimant. — McBride v. Thompson, 8 Ala. 652; Abney v. Kingsland, 10 Ala. 855; Darling v. Bryant, 17 Ala. 10. According to these rules, there was no error in excluding those declarations of the defendant in execution, which were excluded. Our decisions have uniformly treated insolvency as a legal conclusion; and the necessary result from them is, that a witness, although “well acquainted with the affairs” of a specified individual, cannot be permitted to testify that the specified individual was “insolvent” at a given time, [650] if objection to such, testimony is duly made. — Lawson v. Orear, 7 Ala. 784; Massey v. Walker, 10 Ala. 288; Walker v. Forbes, 25 Ala. 139; Royall v. McKenzie, ib. 365; Varner v. M. & W. P. R. R. Co., 19 Ala. 185. The court below, therefore, did not err, in refusing to allow the witness for the plaintiffs to testify, that the defendant in execution was insolvent shortly after the execution of the bill of sale by him to the claimant. Judgment affirmed.