Gary v. Terrill

9 Ala. 206

Opinion

ORMOND, J.

The court erred*in excluding the evidence of the declarations of Thomas P. Terrill, in relation to his title, whilst in possession of the slave. This point has been frequently decided by this court. [Oden v. Stubblefield, 4 Ala. Rep. 40; Garey v. Frost & Dickinson, 5 Id. 636; McBride and wife v. Thompson, 8 Id. 650.]

In the case last cited, it was held, that it was allowable to prove the declarations of one in possession of personal property, to establish whether he held it in his own right, or under another, but that his declarations would not be evidence to prove the consideration paid for • it. Here it was proposed to prove, that T. P. Terrill, whilst in possession of the property, claimed it as his own. The competency of such evidence, does not depend on the fact, that the declarations are made in the hearing of the opposite party, but it is because it relates to, and is connected with the possession, and is therefore a part of the res gestee. It is therefore competent testimony ; what weight it is entitled to, is a question for the jury, considering the declarations so made, in connection with the otlier facts in the cause.

For the error of the court in excluding this evidence, the judgment must be reversed, and the cause Remanded.