McGehee v. Mahone

37 Ala. 258

• Court: Supreme Court of Alabama
• Decided: January 15, 1861
• Status: Published

Opinion

A. J. WALKER, C. J.

A party cannot-counteract admissions, proved to have been made by him, by evidence of posterior declarations, made on a different occasion. — Pearsell v. McCartney, 28 Ala. 110, 126; Roberts v. Trawick, 22 ib. 490-494; Lee v. Hamilton, 3 ib. 529. The declarations, the exclusion of which is the subject of the second exception, manifestly fall within this rule, and were properly held inadmissible.

Rut it is claimed that the act, for the rejection of the proof of which the defendant made the first exception named in the bill of exceptions, must be excluded from the operation of that rule. The plaintiff proved, that defendant was present when the plaintiff’s son gave in the slaves in controversy, to the tax-assessor, as the taxable property of the plaintiff; and that the defendant did not include the si aves-.in the list of taxable property rendered by him. It appeared, however, that-'on that occasion, the defendant said, that he had intended'to give in the slaves in controversy as his property, but--plain tiff’s son had relieved him of that; and, also, that the-defendant asked leave of the assessor to correct any mistake, and spoke of getting advice. The defendant proposed! to prove that, afterwards, on the same day, he gave in-to the assessor the said slaves: as Ms taxable property. If the proposed evidence ought to be excepted from the general rule, it is upon the ground, that the defendant qualified-his conduct, and weakened the admission, to be argued-from it, by saying that he had -intended to give in the slaves as his property, hut was relieved of it by the plaintiff’s son, and asking leave to correct any mistake. That the defendant so qualified and explained his d olanitious and conduct at the time, as to greatly lessen the weight of the argument against him tobe drawn, therefrom, cannot justify him in giving in evidence a subsequent act or declaration, adding farce to the qualification or explanation already made, or relieving himself from the previous admissiou. The defendant obtained the advantage and' full benefit of his explanation or qualification, in lessening or destroying the influence of the admission. The fact that he asked leave to correct any mistake, did not entitle him to prove that he subsequently acted differently. Every complainant in chancery files his bill, having a right to correct mistakes in the original bill by an amendment; yet it has been decided, that when an original bill is offered in evidence, in another suit, against the complainant, he cannot counteract the admissions of the original bill, by introducing, the amendment. — Pearsall v. McCartney, 28 Ala. 110. If a party makes an admission, with a request of permission to correct any mistake in the admission, the jury are to consider the effect of his request of permission to correct mistakes in determining the weight oí the admission ;-but he cannot be allowed to prove subsequent declarations or acts, for the purpose of relieving himself of the force of the admission.

[2.] The appellant, for the purpose of discrediting his adversary’s witness, interrogated him; as to declarations made by him (the witness) at a designated time and place, and to.a given person. The witness asserted, that he could not answer the question, without giving the declarations of the defendant, who was present, at the time wlnm..the declarations of the witness were made. The court said, that the declarations of the appellant could not be given in evidenceand to this denial by the court of the admissibility of the appellant’s declarations there was an exception. It is clear, that the appellant’s declaiations were, jprima facie, inadmissible as evidence for him. It therefore devolved upon him, as a preliminary to their admission, to show how. they could be made competent evidence by other facts.— Shields & Walker v. Henry & Mott, 31 Ala. 53. The court had nothing before it, tending to relieve those declarations of their inadmissible character, save the single fact, that the witness said he could not answer the question, requiring a statement of the declarations made by himself, unless he also gave the declarations made by the appellant on the same occasion. Ifo might have been, that the appellant’s declarations were so intermingled and connected with those of the witness in the same conversation — for example, in the form of questions by one, and answers by. the other — that it would be impossible to understand the declarations of the witness, except when viewed in connection with those of the appellant. But that state of things is not satisfactorily shown, simply by the statement of the witness, that he could not give his own declarations without giving the defendant’s. The court, which is the judge of the showing preliminary to the admission of evidence prim'a facie illegal, could not safely or properly act upon such a statement of the witness, In doing so, it would have substituted the judgment of the witness for its own, upon the question, whether the declarations of the appellant and the witness were so connected that the latter would be unintelligible without the former. Besides, the statement of the witness, giving no- reason why he could not give his own declarations without those of the appellant, was of such ambiguous and doubtful character, that no inference of the requisite fact could be safely predicated upon it.. — Scott v. Coxe, 20 Ala. 294; Humphreys v. Bradford, 32 Ala. 500. If there were facts which would have shown the admissibility of the- declarations in question, they should have been brought to the notice of the court. Upou the facts.disclosed by the bill of exceptions, we cannot affirm that the court erred in deciding that the declarations were inadmissible.

[0.] There was no error in the refusal to charge as requested by the appellant. If the plaintiff accompanied the delivery of the negroes with the declaration, “ that he gave or loaned them to the defendant’s, wife, but subject to bis call at any time,” his right to terminate the bailment, and reclaim the negroes, would not necessarily be restricted to the life-time of the bailee.

Judgment affirmed.