Gimon v. Baldwin

38 Ala. 60

Opinion

A. J. WALKER, C. J.

This seems to have been the. case of an alleged right of action in trover against two-persons separately, for distinct torts, A recovery, against, one, and subsequent satisfaction, would have barred an action against-the other.—Spivey v. Morris, 18 Ala. 254. But the judgment against one would not be evidence for the other, except in the sense in which it .would be evidence against all the world,, to pjove the fact of the judgment. If it were satisfied,, it would be one of the two facts — judgmenN-and payment of it — which would have been a defense in . a subsequent action agginst-the other party. It is not sufficient to render a witness incompetent' under our Code, (§2302,) that a judgment would be available as a-fact to the witness.: - it must- be evidence for him. as for parties and” privies, operating by way of • estoppel. Harris v. Plant & Co., 31 Ala. 639; Blakey v. Blakey, 33 Ala. 611. The court erred in .ruling the witness to be-incompetent.

[2.] The conversation between the- defendant and the two negroes-could. only be evidence.as a part-of-the.rcsu gestee. Those conversations are not shown by the bill of exceptions to have been connected with the act of the slaves in going on the boat, where they are alleged to have been put by the defendant as a hirer, or so near to it in point of time as to make it a part of the res■ gestee ; nor were they so connected with, or in such prox-. imity of time to, any other material fact-in the case. They were, therefore, not «admissible-in evidence...

Reversed and- remanded,-.