Webb v. Kelly

STONE J. In the answer of the -witness Mary Lebonte to the 4th interrogatory, are some statements of fact, which [340] arc clearly legal evidence. The objection of 'the appellant was general, to the whole answer. Under these circumstances,'the'court did not err in overruling the objection. Shep. Big. '596, § 169. [2:] In admitting, as evidence for plaintiff*, what he had himself said a few days after the sale, the city court erred. 'This was no part of the res gestee, and Mr. Kelly could not (make evidence for himself, — Shep. Big. 592 ; Newcombe v. Leavitt, 22 Ala. 631. [3.] We do not know any principle on which the record of the suit between Wiley and Kelly could be evidence for ;any legitimate purpose in this trial. It was irrelevant, and could not possibly shed any light-on the main subject .of contest, namely, whose money was-used in the purchase of the slave Wash'? The-court erred in admitting the .record. [4.] The question Of the duty of the city court to suppress the deposition of the witness Mary Lebonte, and to .bring her personally 'before the court, will probably not again arise in its present form. It is probably true that a -Witness, confined in'prison Under sentence of the law, is not withinthe spirit*of the statute;' but, when the proper affidavit-is made, and the attendance of the witness can be procured, the deposition should be suppressed. — Acts 1857-Sj p. 34. [5.] In the form in which the attempt was made to render Mr. -.Kobinson a -competent witness'for ¿Mr. Kelly, tLi city court also erred. It was not permissible to erase Mr. Robinson’s name 'from the bond, and supply his place with another surety. A new and "sufficient bond should have been executed and approved, before any action of the court should have been-had, exonerating Robinson as a surety. Tendering such'good and sufficient surety, and executing a proper -bond, Mr. Kelly had a right-to ask that his former surety be discharged, that-he ‘might testify as a witness for him. — Taylor v. Branch Bank at Huntsville, 14 Ala. 633; Drinkwater v. Holliday, 11 Ala. 134. , [6.] We think the .charge asked-.and.refosed, misappre341 Heads the rights of the parties to this suit. The gist of Mr. Kelly’s complaint lies in the claim by him, that the pretended purchase of Wash by Mr.' Williams and Mr. Webb, was with money to which neither of them bad any claim, but which belonged to him, Kelly; that a fraud was practiced upon him, and hik-title to his property sought to be divested, by a pretended purchase by Williams, when in fact the purchase was made by the slave Wash himself, with the money of his mastfer. The rule is v/ell settled imthis State, that a slave cannot' be the owner of property, but whatever accrues to the slave becomes the property of his master. — See Brandon v. Bank of Huntsville, 1 Stew. 320; Jones v. Nirdlinger, 20 Ala. 488. if the slave acquire money or property with his master’s consent, and' with like permission pay it'out-to another, who receives it fairly and in-- a business-transaction, the owner of the slave cannot' afterwards pursue such money and recover it. — Shanklin v. Johnson, 9 Ala. Rep. 271 ; Stanley v. Nelson, 28 Ala. 514. But, to come within this rule, the person- who receives the money or property from the slave, must receive it .in his own right, and not as a bailee or custodian for the benefit of the slave. If the money or other thing.be received and held for the slave, it is still subject to the masterts assertion,of,ownership. The fact that Wash “loaned the money thus acquired to Landermilk, and it [the money] rwas used by Williams in the purchase of Wash,” did not, without more, destroy Mr. Kelly’s right to the money.. It. would still be subject to his assertion of ownership, so long, as it was held for Wash’s’ benefit; and if the purchase was in fact made with money furnished by the slave, without the knowledge of Mr. Kelly, and this change of title was procured to be made to Williams, but, in reality, was for the benefit of the slave himself, — then, on the ascertainment of these facts by the jury, Mr. Kelly would have the right to retake the possession of his slave. Reversed and remanded.