Thomas v. Henderson, 27 Ala. 523

Thomas v. Henderson

27 Ala. 523 | Ala. | 1855

CHILTON, C. J.

1. The cases of Garrett v. Rhea, 9 Ala. R. 134, Henderson v. The Branch Bank at Montgomery, 11 ib. 855, and Lanier v. The Branch Bank at Montgomery, 18 ib. 625, show that the court committed no error in permitting the endorsement by the sheriff of a levy upon the property in question to be read to the jury. This return is a part of the record, and the claimant estops herself from saying there is no levy, by putting in her claim, giving bond, &c. — Henderson v. Br. Bk. Montgomery, supra.

2. There can be no doubt of the right of the plaintiff in the execution to show that the property levied upon, either before or at the time of the levy, was in the possession of the de fendant in the execution, possession being prima facie evidence of title. The facts, that Atha. Thomas, the defendant in the execution, resided on and claimed as his own the plantation on which the slave in controversy worked, — that the claimant, who was his daughter, and James, who was controlling the slave avowedly as the overseer of his father, resided on said plantation with him, and that the father while the slave was being thus controlled, declared that James was Ms overseer, — all tended to establish the possession of the father under claim of ownership, and were certainly admissible as evidence to show an adverse possession. For this purpose alone this proof was distinctly allowed by the court; and the proof failing to show a possession for such a length of time as could ripen into a title, the court instructed the jury, “that the plaintiff had failed to make out any adverse possession, and that that question ivas therefore not before them, and they were not to regard any proof on this subject.”

3. We cannot perceive how the jury could have been misled by the proof, even if it be conceded to be improper. The court expressly limited its admission to one plainly defined purpose, and afterwards told the jury they should disregard it as respects that purpose, inasmuch as there was a failure of suppletory proof to establish such adverse possession. — 15 Ala. R. 623. Assuming that the jury were men of ordinary sense and apprehension, no injury could possibly have resulted from such proof. — Florey’s Ex’rs v. Florey, 24 Ala. R. 241; 17 ib. 681-688.

4. But if James Thomas’ declarations were improper, yet a *530portion of the proof was clearly competent, and the objection was general, going to it as a whole. It might therefore, for this reason, have been properly overruled. — 15 Ala. R. 535; 23 ib. 335.

5. What Athanasius Thomas said to the sheriff, when ho was-about to levy an execution upon the slave Jenny, as the property of James Thomas — to-wit, “that he might go contented without her, — that he never would get a negro there on James’ account — that every negro there belonged to him, the said Athanasius Thomas,” the slave in controversy being-then in his possession, — was competent as explanatory of his possession, and properly admitted by the court as part of the res gestee.

6. Neither was there any error in permitting the plaintiff to read the answer of Allen to the cross-interrogatory of the claimant, respecting the arrest of Athanasius Thomas under a capias ad satisfaciendum. The answer is responsive to the interrogatory, which elicits this new matter, and which, as it was connected with the consideration of the demand for the satisfaction of which this slave was sought to be condemned, was not irrelevant. The claimant, having examined the witness as to the arrest upon the ca. sa., without requiring the production of the writ, cannot object, when the other side elects to read the proof so brought out upon his cross-examination, that the writ was not produced. The law does not allow a party thus to experiment, — to ascertain by actual examination what a witness will swear, and then admit or exclude the answers at his election. — Stewart v. Hood, 10 Ala. R. 607.

7. The 8th interrogatory requires the witness Crosby to state the extent of Athanasius Thomas’ indebtedness before he left South Carolina, and how long it had continued ; and to state any facts the witness might know going to show his solvency or insolvency, and what general rumor in the neighborhood in which said 'Thomas then resided, said respecting his solvency, &c. The cross-interrogatory of claimant asks the said witness to state “ If, at any time, Athanasius Thomas was under arrest for debt. If so, and if more than once, that he state the first date at which he was so under arrest, and the manner of his discharge from arrest; and if, at the time *531he was under arrest in 1835 or 1836, the boy Jim was notin the possession of William and Mary Thomas,” &c. The wit- _ ness speaks of the arrest of A. Thomas under a ca. sa. in his answer to the 8th interrogatory, and when he comes to answer the cross-interrogatory, he says, ‘‘ A. Thom'as was notoriously insolvent. He was under arrest on the ca. sa. before alluded to. This was five or sis months before' they went away. Can’t say whether he was ever arrested in 1835 or 1836.”

The bill of exceptions presents the objection arising upon this examination as-follows .- “ Claimant objected to so much of the 8th interrogatory as is as follows — ‘ after judgment he was ca-saed, and took the prison bounds, giving Thomas Henderson as his security. Henderson afterwards had the debt to pay, in consequence of Thomas going away’; the ground of the objection being that said proof was incompetent and illegal. No record evidence of a judgment, ca. sa., or of said Thomas’ having been placed in the prison bounds, was produced.” The court admitted the proof as evidence of the consideration of the demand of the plaintiff in the execution ; the evidence showing that the present execution was for a debt which Henderson had paid for said Thomas, under the above circumstances.

It is not necessary for us to decide whether the proof would have been illegal, as secondary evidence, had the interrogatory in chief called for it directly. Even conceding that it is secondary evidence, and falls under the rule that the better primary evidence must be adduced, or its absence accounted for, before it could be received, if no objection for this cause had been taken to the interrogatory, it would, perhaps, have been considered as waived. The point of waiver is presented in a much stronger aspect against the claimant by the facts before us. Here, the leading examination makes no inquiry for the ca. sa. or arrest under it. The claimant examines as to this, which is original matter, by cross-interrogatories; and the answer objected to is directly responsive to such cross-examination, while it is incidentally stated as a response to the 8th interrogatory in chief. Under these circumstances, we think the claimant cannot raise the objection at the trial, that the judgment and ca. sa., with the proceedings' thereon of record, were not produced.

*532Had the direct examination called for this proof, and the cross-examination been limited to it, its exclusion upon the direct examination would have entitled the claimant to have it also excluded upon the cross-examination. — Olds v. Powell, *¡ Ala. R. 652. But in this case the claimant’s inquiry calls for it as original matter; and it is ■ proper to refer the testimony to his specific interrogatory, rather than as elicited by the direct examination, which does not call for it, and in response to which it was, as we have said, incidentally detailed by the witness.

We are unable to perceive any error in the record, and the judgment must be affirmed.