17 Ala. 242 | Ala. | 1850
This was an action of detinue brought by the defendant in error against Dent to recover a slave named Daniel. Plea non detinet, and verdict and judgment for the plaintiff below. Upon the trial below plaintiff proved that the slave sued for had been formerly owned by one Robert Oliver, who died in Texas; that his estate was administered upon, and that upon a division of the same said slave was allotted to one Jefferson W. Oliver as an heir or distributee of said estate, and sold by him to the plaintiff. The plaintiff below, as we are informed by the bill of exceptions, in making this proof offered to read to the jury the deposition of Jefferson W. Oliver, his grantor, and the defendant having properly reserved his objection to the examination of the witness, on the ground of interest, insisted upon that objection in the Circuit Court. The deposition shows that after the' witness had been examined as to his acquisition of the property upon a distribution of his father’s estate, and his sale of the slave to the plaintiff, the witness proceeded to prove his want of interest in the following manner— To the question propounded by the plaintiff, “Have you been released by the plaintiff Robert Portwood, from all liability to him as the warrantor of the title to said slave, — If so, then attach a copy of said release to your answer to the question ?” The witness answered, “1 have,” and here follows a copy of the release, setting out a formal release to him from Robert Portwood, of and from all liability by reason of his sale and warranty of the slave in suit. The court overruled the objection made by the defendant to' the deposition, and held that the witness was not interested. It is here insisted, first, that the witness had such interest as could not be released, for the reason that if the plaintiff" below failed to recover, the estate of Robert Oliver must sustain the loss, and each distributee among whom it had been apportioned must contribute ratably to the loss. This view cannot be sustained, inasmuch as the witness, if the release be effectual, is discharged from all liability. The failure-of Portwood’s title cannot injuriously affect him, for he has received compensation to the value of the slave, which he.is end-
For the error above noticed, the judgment must be reversed and the cause remanded.