Madden v. Hooper

A. J. WALKER, C. J. 1. The delivery bond given in evidence had a relevancy to the question of the case. It was proper for the consideration of the jury because of its tendency to show an acknowledgment of the liability of the property to the plaintiff’s execution. — Miller v. Hampton, 37 Ala. 342 ; Mitchell v. Ingram, 38 Ala. 395. 2. There was no error in admitting evidence of the value of the slave levied on at the time of the levy.. The law, (Eevised Code, § 3018, (2589,) does not lay down an inflexible rule that the value of the property at the time of trial shall be assessed. It requires only that the value at that time shall be assessed as far as practicable. The quality of property in the slave having been destroyed before the trial by emancipation, it was obviously impracticable to assess any value as of that time, because there was then no value. That being the case, it was competent for the plaintiff to prove the value at the time of the levy. — Borland v. Mays, 8 Ala. 105. 3. The statement of the court to the jury, that the negro had no value as property at the time of the trial, was true, and merely asserted a fact of which it had judicial knowledge. The claimant would not have been injured by the rejection of his inquiry as to the value at the time of trial, when the law itself declares that there was no value. 4. The emancipation of the slave would not preclude a recovery by the plaintiff in a trial of the right of property. [400] Tbe point has been so ruled in reference to an action of detinue, and the analogy to that ruling must govern the question in this case. — Pearson v. Rose, in manuscript; Dewitt v. Alexander, 25 Ala. 265. 5. What the rights and liability of. the obligors in the claim bond will be after a return of its forfeiture, is not a question now arising. It does not belong to this case as now presented. 6. The prior possession of the defendant in execution was prima facie evidence of title, and its effect as prima facie evidence of title would not be overturned by a subsequent joint possession of the defendant and claimant, unaided by other evidence. This the court might well assert as a proposition of law. —McCall v. Pryor, 17 Ala. 533 ; Sims v. Boynton, 32 Ala. 353 ; Governor v. Campbell, 17 Ala. 566; Pinckston v. McLemore, 31 Ala. 308 ; Cole v. Varner, ib. 244; Whitsett v. Garner, 23 Ala. 626 ; Philips v. McGreer, 13 Ala. 255. There was no error in giving the charge requested by the plaintiff. In instructing the jury in explanation of difficulties suggested by some of the jurors, when they were polled, and in causing them to retire to reconsider their verdict, the court is not shown, by the facts before us, to have exceeded the discretion which must be left to the presiding judge. We are bound to look at the facts shown by the bill of exceptions, in a light favorable to their correctness and propriety. Affirmed.