Bilberry v. Mobley

20 Ala. 260

• Court: Supreme Court of Alabama
• Decided: January 15, 1852
• Status: Published

Opinion

GOLDTHWAITE, J.

— The first question presented on the record is simply, if evidence that a creditor was unable to collect his debt was admissible to show the insolvency of the debtor. We are of opinion that it was. This evidence, standing by itself, and without explanation, warrants any inference which conld have been drawn from it, had a demurrer been interposed, and in that case the cause of the inability of the creditor to collect might have been legitimately referred to the want of ability on the part of the debtor to pay. The partjr against whom the evidence was offered, could have protected himself fully by a cross-examination, and have shown that the failure of the creditor to collect was not in fact owing to the inability of the debtor to pay, or he could have insisted before the jury on the insufficiency of the evidence. There was no error in admitting this testimony.

2. The evidence that the administratrix, more than three years after the execution had issued, by which the property was levied on, while acting as the representative of the claimant, had asserted her individual ownership of the mare for which the cotton had ostensibly been sold, was improperly admitted. There was evidence tending to show a sale of the cotton to Henry Bilberry, and the only object in the introduction of this testimony, that we can perceive, was to show a state of facts inconsistent with an actual and lona fide sale, and thus proving that it was fraudulent. The sale must have been before the levy, and the claim of the property constituting its consideration, by the administratrix of the party to whom it was made, at an interval of more than three years, is of itself too remote to authorize any legitimate conclusion of the condition of the same property at the time of the sale. The evidence was therefore irrelevant, and as it may have prejudiced the party against whom it was admitted, it is an error for which the judgment must be reversed, and the cause remanded.