Durden v. McWilliams

Supreme Court of Alabama

Durden v. McWilliams

36 Ala. 345

DecidedJune 15, 1860

StatusPublished

This text of 36 Ala. 345 (Durden v. McWilliams) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Durden v. McWilliams, 36 Ala. 345 (Ala. 1860).

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Opinion

R. W. WALKER, J.

Under the Code, (§ 2302,) it is not a sufficient reason for excluding a witness, that the effect of a judgment in favor of the party who introduces him would he to place him in a state of security. His competency depends upon the question, whether the verdict and judgment would be evidence for him in another suit; and the test whether they would be evidence for him, is the inquiry, would they be evidence against Mm, [348]*348if adverse to the party introducing him? Iu other words, the witness is competent, unless the verdict and judgment would be evidence for or against bim in another suit, according as they may be for or against the party calling him.- — Blakey v. Blakey, 33 Ala. 618, and cases cited. As a judgment in favor of the claimant would, as to the defendant in execution, be res inter .alios acta, and, therefore, c'ould not in any subsequent suit be evidence against him, he was not incompetent.

2. It is not necessary that we should determine, whether there may not be, in some respects, a difference between the provisions of the act of 1803, (Clay’s Dig. 255, § 2,) and sections 1294-5 of the Code, regulating the rights of creditors and purchasers of loanees who are suffered to retain possession of personal property for three years. For, however this may be, there is no doubt that the provision which is made in section 1295 of the Code, was fully embraced by the act of 1803. This section, therefore, simply continues in force a principle embodied in, and is, to that extent, a re-enactment, rather tban a repeal of, the former, statute. Hence, it is not to be confined in its operation to possessions commenced or continued for three years after the Code went into effect, hut applies as well to cases in which the three years possession by the loanee is made up in part of time which elapsed before, and in part of time which elapsed after, the Code went into operation.

Judgment affirmed.

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R. W. WALKER, J.

Under the Code, (§ 2302,) it is not a sufficient reason for excluding a witness, that the effect of a judgment in favor of the party who introduces him would he to place him in a state of security. His competency depends upon the question, whether the verdict and judgment would be evidence for him in another suit; and the test whether they would be evidence for him, is the inquiry, would they be evidence against Mm, [348]*348if adverse to the party introducing him? Iu other words, the witness is competent, unless the verdict and judgment would be evidence for or against bim in another suit, according as they may be for or against the party calling him.- — Blakey v. Blakey, 33 Ala. 618, and cases cited. As a judgment in favor of the claimant would, as to the defendant in execution, be res inter .alios acta, and, therefore, c'ould not in any subsequent suit be evidence against him, he was not incompetent.

2. It is not necessary that we should determine, whether there may not be, in some respects, a difference between the provisions of the act of 1803, (Clay’s Dig. 255, § 2,) and sections 1294-5 of the Code, regulating the rights of creditors and purchasers of loanees who are suffered to retain possession of personal property for three years. For, however this may be, there is no doubt that the provision which is made in section 1295 of the Code, was fully embraced by the act of 1803. This section, therefore, simply continues in force a principle embodied in, and is, to that extent, a re-enactment, rather tban a repeal of, the former, statute. Hence, it is not to be confined in its operation to possessions commenced or continued for three years after the Code went into effect, hut applies as well to cases in which the three years possession by the loanee is made up in part of time which elapsed before, and in part of time which elapsed after, the Code went into operation.

Judgment affirmed.

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Bluebook (online)

36 Ala. 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/durden-v-mcwilliams-ala-1860.

Opinion

R. W. WALKER, J.

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