Wittick's Adm'r v. Keiffer

31 Ala. 199 | Ala. | 1857

■WALKER, J.

— The question as to the admissibility of Mrs. Keiffer’s declai'ation to the witness Hardy, at the time of the appraisement of the property of plaintiff’s intestate, is identical with, a question in tlie case decided at this term between the same parties. "We decide the question, upon the authority of that decision, against the appellant.

2. In the case of Garrett v. Garrett, 29 Ala. 439, we adopted the following as a correct statement of the value of verbal admissions as evidence': “ "When a verbal admission is deliberately made, and precisely identified, the evidence it affords is often of the most satisfactory nature; nevertheless, proof of mere verbal admissions of a party, unsustained by any other circumstances, should always be cautiously weighed, because of their liability to bp misunderstood, the facility of fabricating them, and the difficulty of disproving them.” The court instructed the jury, that if certain declarations of the plaintiff’s intestate were loosely made, they were the lightest kind of evidence; but, if deliberately made, they were the best kind of evidence. From the words of this charge, the jury would understand the court, not to exclude them from carefully scrutinizing the credibility of the witnesses who proved the declarations, and the reliability of their memories; and, in that particular, we do not deem it erroneous. But, when the court says, that declarations, deliberately made, are the “best kind” of evidence, it is tantamount to saying that they are better than any other kind of evidence. While declarations, deliberately made, may afford proof of the most satisfactory character; yet they are not better than every other kind evidence. The court erred in assigning to them a pre-eminence as evidence, which does not belong to them; and we cannot hold that the plaintiff was not prejudiced by this error, especially as there was not complete harmony between all the other evidence in the ease and those declarations.

3. The plaintiff, having gone into the possession of the slaves sued for upon the execution of the statutory bond, was liable to a judgment for the property, or its alternate value, in favor of the defendant who was the successful party. Section 2194 of the Code authorizes such a judgment. — See Rowan v. Hutchisson, 27 Ala. 328. But the plaintiff lias the same right to relieve himself by the payment of the alternative judgment for the value of the property, which appertains to an unsuccessful defendant; and it was, therefore, clearly improper to render a judgment for the specific property alone. The judgment should have been in the alternative. This error is prejudicial to the plaintiff, because it deprives him of a right. See Pharr v. Bell, 7 Ala. 807; Code, §§ 2194, 2195, 2196.

The judgment of the circuit court is reversed, and the cause remanded.