23 Miss. 92 | Miss. | 1851
delivered the opinion of the court.
If this case rested alone upon the testimony which was submitted to the jury, we should not disturb their verdict. But a note of the late Mrs. Emmons, under whom the plaintiff as her child and heir claims, was offered in evidence by the defendant, and rejected by the court. To this an exception
The point involved in the suit is, whether there was a gift of the slave by the plaintiff in error to his daughter, or only a loan. If it were a gift, the slave became the separate prop- , erty of Mrs. Emmons, exempt from any claim on the part of her husband. Her act at the time the slave was placed in her possession, or before or afterwards, would certainly be evidence to show and explain the nature of her title. In this instance the note given for the hire, had no binding effect upon her as a contract, yet it was evidence to show her understanding of the transaction. It is not a conveyance of any right which she had; if it were, the statute must be pursued. It is simply evidence furnished by the principal party concerned, as to the character of the title and possession which she had. Its admission would not violate the policy of the rule which excludes husband and wife from being witnesses for or against each other. Were she living, and were the suit brought in the joint name of herself and husband, as would then have to be the case, the paper would be evidence against her, as a party to the record. The present plaintiff stands in her place, and it must be equally admissible against him. Where a wife acts as the agent of her husband, her acts and declarations are evidence against him. 1 Phil. Ev. 85 et seq. The testimony offered in this cause; stands upon ground equally high and firm.
We think, therefore, its exclusion was error, for which the judgment must be reversed, and a new trial awarded.
Judgment reversed, and cause remanded.