Hayden v. Boyd.

ed, was a relinquishment of the right to compensation, and the plaintiff could not recover.

COLLIER, C. J.-It is enacted by the act of 1839, that "in all suits to be commenced upon accounts for a sum not exceeding one hundred dollars, the oath of the plaintiff shall be received as evidence of the demand, unless the same be controverted by the oath of the defendant; but this section shall not apply to the case of executors and administrators, trustees and guardians, when sued." (Clay's Dig. 342, § 161.]

Under the act of 1819, which permits the borrower of money to prove that a usurious rate of interest was reserved, unless the lender will deny on oath the truth of his testimony, it has been held, that he could not be sworn and examined as a witness generally. And where the record affirms that he was offered as a witness, without stating the object, if there was a defence other than usury set up, it cannot be intended that his testimony was restricted to the latter. [Richards, et al. v. Griffin, 5 Ala. Rep. 195.]

In Bennett v. Armistead, use, &c. 3 Ala. Rep. 507, it was decided that the defendant could not be examined as a witness under the act of 1839, (cited above,) that his only privilege was to deny on oath the truth of the plaintiff's testimony, and thus exclude it from the jury. See also, Ivy v. Pierce, use, &c. 5 Ala. Rep. 374; Anderson v. Collins, 6 Id. 783.

In the case at bar, it appears that the defendant was sworn generally, and gave evidence to the jury, notwithstanding the plaintiff objected; this was an irregularity which affects the judgment in question.

The note addressed by the defendant to the plaintiff, is a demand of the gin, or fifty dollars, and informing the plaintiff, that if neither of the alternatives are complied with, then they would "have to settle the matter in some other way." Assuming that the contract of the plaintiff entitled him to retain the gin, until he could find a purchaser for it, and still we think the defendant did not obtain possession of it under such circumstances as make him liable to pay the price of the repairs. The defendant was not bound by the terms of his contract to pay it, but the plaintiff was to compensate himself by retaining all that the gin would sell for above fifty dollars. No undue coercion seems to have been employed to induce the plaintiff to part with it. The concluding re

Leiper v. Gewin.

mark in the note cannot be construed into a threat, that other than legal measures would be resorted to, in order to adjust the rights of the parties. There is then, nothing to show that there was a rescission of the contract, without the assent of both parties, or that the defendant employed or threatened violent measures to obtain the gin. We must understand that the plaintiff voluntarily gave it up. Under these circumstances, we cannot think, that the mere reception and retaining of it, imposed upon the defendant the legal duty to pay for the repairs. The rescission must be taken to be a rescission by mutual consent.

Whether, if the defendant were to sell the gin at a price beyond fifty dollars, or if the repairs should make it of greater value, and instead of selling it, he should use it, he would be bound to pay the excess to the plaintiff, are questions which do not arise upon this record. For the error in the point first considered, the judg ment of the County Court is reversed, and the cause remanded.

LEIPER v. GEWIN.

1. In detinue against a sheriff, for a slave seized under execution, as belonging to the defendant in execution, the latter is not a competent witness for the sheriff to prove property in himself.

Writ of Error to the Circuit Court of Lawrence county.

DETINUE, by Leiper against Gewin, for a slave. At the trial, the plaintiff made title under a purchase from the sheriff, who sold the slave as the property of one Niel, by virtue of an execution against him in favor of one Owen. The defendant then proved a fi. fa. at the suit of the Branch Bank of the State of Alabama against said Niel, by virtue of which, as sheriff of Lawrence county, he levied again on the same slave, as the property of Niel, and offered Niel as a witness to prove that he furnished the plaintiff, Leiper, with the money paid for the slave, at the first sale, as well as fraud in that purchase. The plaintiff objected to

Leiper v. Gewin.

Niel as an incompetent witness, but the Court overruled the objection, and permitted the witness to give evidence to the jury. The plaintiff excepted, and now assigns the admission of this wit

ness as error.

L. P. WALKER, for plaintiff in error.

A. F. HOPKINS, for the defendant, cited Martin v. Kelly, 1 Stewart, 198; Jones v. Park, Ib. 419; Pruitt v. Lowry, 1 Porter, 101; Prewitt v. Marsh, 1 S. & P. 17, Standifer v. Chisholm, Ib. 449; McGehee v. Eustis, 5 S. & P. 426; Stevens v. Lynch, 2 Camp. 332; Holman v. Arnett, 4 Porter, 63; Reimsdyk v. Kane, 1 Gall. 630; Chitty on Bills, 417; 12 East, 38.

GOLDTHWAITE, J.-None of the cases cited go to the extent of the decision of the Court below. It is true, the defendant in execution, with us, is admitted as a witness for his vendee, when the contest is between him and the creditor, or officer making the levy. [Standifer v. Chisholm, 1 S. & P. 449; McKenzie v. Hunt, 1 Porter, 37.] But there is a marked distinction between his capacity to testify under such circumstances, and when he is called to support his own title against one who does not admit that his is derived from the same source. We are not informed by the bill of exceptions, whether the defendant has sold the slave levied on, and applied the proceeds to the satisfaction of the execution; therefore it is unnecessary to consider how far that circumstance would affect the interest of the witness; but the position assumed by the Court below, seems to be nothing more or less, than calling one to subject property to his own debt. If this witness is competent, there is nothing to prevent a debtor from pointing out the property of another, to satisfy an execution against himself, and sustaining the levy by his own evidence. It seems too clear to admit of doubt, that the effect of such evidence would be to benefit himself, by discharging his own debt. This is the precise case of Bland v. Ansley, 5 B. & P. 331, the principle of which seems generally to have been recognized in England, and in this country. Thus, in Upton v. Curtis, 1 Bing. 210, it was held, in an action of replevin, by an undertenant against the landlord, who had seized chattels for rent due to the tenant in chief, that the tenant was not a competent wit

328

Mooney v. The State.

ness to prove the amount of the rent due from the undertenant; and in Pratt v. Stephenson, 16 Pick. 325, the debtor was rejected as a witness for the attaching officer. See also, Waller v. Mills, 3 Dev. 515. So in foreign attachment, the debtor is a competent witness for, but not against the garnishee. [Enos v. Tuttle, 3 Conn. 247.] Most of the decisions bearing upon this question are collected in Cowen and Hill's Notes, 84, 91, 120, 1522, and the result seems to be, that the defendant in execution is not a competent witness for the creditor, or attaching officer, except in cases where his interest is balanced, in consequence of his liability as a warrantor, or unless he cannot be a loser by setting aside the act of the officer. In the case before us, if the plaintiff does not recover, the debt of the witness is discharged, to the value of the slave; he is therefore directly interested to defeat him, and no equipoise of interest is shown.

Judgment reversed and cause remanded.

MOONEY v. THE STATE.

1. The words inveigle, entice, steal and carry away, in the Penal Code, (Clay's Dig. 419, § 18,) denote offences of precisely the same grade, and may be included in the same count of the indictment; and upon proving either, the State is entitled to a conviction.

2. The offence of inveigling, or enticing away a slave, is consummated, when the slave, by promises, or persuasion, is induced to quit his master's service, with the intent to escape from bondage as a slave, whether the person so operating on the mind and will of the slave, is, or is not present when the determination to escape is manifested, by the act of leaving the master's service, or whether he is, or is not sufficiently near to aid in the escape if necessary.

Error to the Circuit Court of Montgomery.

THE indictment charged, that the prisoner, and two others, "did unlawfully, and feloniously, inveigle, steal, carry and entice

Mooney v. The State.

away, two negro slaves, the property of Francis M. Barnett, with a view, then and there, feloniously and unlawfully, to convert the said slaves to the use of them, the said Henderson Brewer, James McKowen, and John, alias Jack Mooney." The prisoner demurred to the indictment, and his demurrer being overruled, pleaded not guilty.

Upon the trial, as appears from a bill of exceptions, the State offered evidence, tending to prove, that the defendants with others, had entered into a combination to steal negroes in the neighborhood, and that on the night of the 29th March, 1844, the prisoner admitted that he was furnished with a horse, and ten dollars, and told by Brewer, to go to the residence of Barnett, and see the said slaves, at a place designated, near Barnett's House, and inform the negroes, that they, Brewer, and McKowen, would be at that place on the next night, and be then and there ready to take them off. That he communicated the message to the slaves, finding them at the place, and left them, telling Brewer what he had done. That Barnett, being advised of the effort to steal his slaves, with some of his neighbors repaired to the place appointed, on the night of the 30th March, 1844. That the slaves were at the place agreed on, between them and Mooney; that Brewer and McKowen, came riding up, on horseback, to the place where the slaves were, and after inducing them to go with them a few steps, were hailed, and fired upon by the party who were watching, upon which they abandoned the possession of the slaves, and galloped off. On the next morning, the prisoner, Brewer, and McKowen, were seen about ten miles from the place, the former aiding the latter in getting a horse, to make their escape.

Upon this state of facts, the Court charged the jury, that if they found that the prisoner was, on the night of the 29th March, 1844, to meet the slaves named in the indictment, at the place where they were subsequently seen by him, and that he had in accordance with, and in furtherance of, a common design to obtain and carry off the slaves, visited them, and delivered the message, and that this was done with the view of inveigling, or enticing, or aiding, in the inveigling and enticing said slaves to leave their master's service, and go away, and further found, as aforesaid, that this was done with a view to convert said slaves to the use of said Brewer, McKowen, and Mooney, or any of them;