allow the plaintiff in error to introduce evidence of a parol submission of the matter in controversy between the parties to arbitrators, and an award of the abitrators upon the submission.

The declaration was in assumpsit, and the suit was commenced by the defendant in error. To the declaration of the plaintiff below, the defendant below pleaded the general issue, and, to defeat the action, offered to prove on the trial that all matters of difference in the suit had been, previous to its commencement, submitted to arbitrators, who had met the parties, and had, in pursuance of the submission, after having examined the testimony, made an award in favor of the said defendant, of which the said plaintiff had notice, etc.

Two questions were raised in the argument; one was, that the award offered in evidence was void, and the other, that admitting it to be valid, it was inadmissible under the plea.

Upon general principles, and without regard to our statute upon the subject of arbitrations, there can be little doubt that the award was a valid one between the parties. Authority need not be shown to prove that an award upon a parol submission is binding upon the parties at common law. If this is the correct doctrine upon the subject, the award in question was valid, unless our statute in relation to the subject of arbitrations so changes the rights of parties as to deprive them of the power to settle their differences by arbitration, unless the statute is complied with. In order to have a submission under the statute, the parties must make an agreement in writing, and must acknowledge it before a justice of the peace; and it is contended that the statute takes away the right of parties to submit matters in controversy between them, to arbitrators in any other mode.

But we are of opinion that this is not the correct view of the subject; the statute contains nothing which shows that the legislature intended to prevent parties from adjusting their differences by the convenient mode of common-law arbitration. Similar statutes in other states have not received the construction contended for: Wells v. Lain, 15 Wend. 99; Fowler v. Bigelow, 8 Mass. 1; Towne v. Jaquith, 6 Id. 46 [4 Am. Dec. 84].

If the award in question was valid, it remains to be seen whether it was admissible in evidence under the plea of the general issue, and we have no doubt on the subect; an award in respect to the pleadings is treated in the same manner as a judgment: Cowen & Hill's Notes, 1035; and authority is abundant to show that, in actions of assumpsit, a judgment can be

1

given in evidence under the general issue: Young v. Black, 7 Cranch, 565; Cowen & Hill's Notes, 810, 1026.

In rejecting the evidence the judge erred, and the judgment of the district court must be reversed.

Judgment reversed.

SUBMISSION TO ARBITRATION INVALID UNDER STATUTE, WHEN VALID AS COMMON-LAW SUBMISSION: Inhabitants of Deerfield v. Arms, 32 Am. Dec. 228; also Byers v. President etc. of Olney, 16 Ill. 35. The question as to who may submit to an arbitration is discussed at length in the note to Hutchins v. Johnson, 30 Id. 626.

PAROL SUBMISSION TO ARBITRATION CONCERNING TITLE TO LANDS is within the statute of frauds: Stark v. Cannady, 14 Am. Dec. 76.

FORMER RECOVERY IS ADMISSIBLE IN EVIDENCE IN ACTION OF ASSUMP SIT, under the general issue: Young v. Rummell, 38 Am. Dec. 594, and note 598.

AM. DEO. VOL. LII-11

CASES

IN THE

SUPREME COURT

OP

ALABAMA.

DARLING V. BRYANT & WALKER.

[17 ALABAMA, 10.]

DECLARATIONS OF TENANT IN POSSESSION, WHETHER OF REAL OR PER SONAL PROPERTY, showing that he holds in his own right, or in subordination to the title of another, constitute part of the res gestæ, and are properly allowable in evidence.

DECLARATION BY PARTY IN POSSESSION that he holds jointly with another is admissible, as tending to establish the joint possession and ownership of such other person.

DETINUE for eighty-four pieces of marble consigned to defendant Darling. It was shipped on the steamer Creole from Mobile to Montgomery. Plaintiffs during the course of the trial introduced one Mayhew to prove their joint ownership, and he testified that Bryant, one of the plaintiffs, while captain and in charge of the boat, had, before the marble was shipped, told the witness that he owned the boat jointly with Walker. To this testimony defendant objected, upon the ground that Walker's ownership could not be established by the declarations of Bryant. The court overruled the objection and admitted the evidence. Plaintiffs in error rely upon this ruling of the court for the reversal of this judgment.

Jackson, Martin, and Baldwin, for the plaintiff in error.

Elmore and Yancey, for the defendants.

By Court, CHILTON, J. The proof made by the witness Mayhew, of the declarations of Bryant, who was in possession of the boat at the time such declarations were made, was properly admitted by the court. It is a principle of law not anywhere

disputed, that the declarations of a tenant in possession either of real or personal property, explanatory of his possession, showing that he holds in his own right, or in subordination to the title of another, constitute part of the res gestæ, and are properly allowable as evidence. This principle is not denied by the counsel for the plaintiff in error; but they insist that the declarations of Bryant are not evidence of the title in Walker, and suppose that the cases of McBride v. Thompson, 8 Ala. 652, and Abney v. Kingsland, 10 Id. 355 [44 Am. Dec. 491], support this view. In the case first cited, the plaintiffs offered to prove the declarations of the person under whom they claimed, made while the property sued for was in his possession, showing his title to the property. But this court held that the circuit court properly rejected the proposition, which was so broad as to embrace not only what the party said explanatory of his possession, but his declarations as to the title, how, when, from whom, etc., he acquired it. It is further said, "that while it is allowable to prove statements of one in possession and explanatory thereof, it is not permissible to show everything that may have been said by him, as that it was acquired bona fide and for a valuable consideration; was paid for by the money of a third person, or his own," etc. The same doctrine is reaffirmed in the case last cited, 10 Ala. 355, where it was proposed on the part of the plaintiff in execution to prove on the trial of the right to a slave, that the defendant in the execution had stated to the deputy sheriff, he desired said deputy to levy an execution upon the slave in controversy, that the claimant might buy him at the sale for the benefit of the said defendant; that he (defendant) had money then in his pocket to pay for the slave, etc. These declarations, though the defendant in the execution was in possession at the time they were made, were excluded, upon the ground that they did not constitute a part of the res gesta, which was, the manner in which the party in possession held, but went to establish something beyond that, to wit, facts disconnected with the possession.

We regard these cases as very correct expositions of the law, but they do not render the declarations in this case improper evidence. In the case before us, Bryant was found in possession of the boat. The legal presumption arising upon that possession was that he was the owner. This presumption he could rebut by his declarations while in possession, explanatory of the manner in which he held-that he held for himself and Walker, who were joint owners. The effect of his declarations

is to make Walker a joint possessor, if the latter affirm their truth, with Bryant; and as they qualify the possession, they constitute the res gestæ, and tend to establish the possession of both Bryant and Walker. This being established, the legal presumption of ownership arising from such joint possession attaches, and, prima facie, entitles them to a joint action. The cases are very numerous where such declarations have been allowed, especially when made by a party against his interest. See them collected in 2 Phill. Ev. (Cowen & Hill's notes), note 234, pp. 601-603; Id. 592, 642, 667, note 256.

In Webster v. Smith, 10 Ala. 429, and Beall v. Ledlow, 14 Id. 523, the declarations of a party in possession, that the property claimed was not his, but was held under and belonged to the claimant, were admitted as competent proof for the claimant: See also Bliss v. Winston, 1 Id. 344; Oden v. Stubblefield, 4 Id. 40; Berry, Use, etc. v. Hardman, 12 Id. 604; Goodgame v. Cole & Co., Id. 77. These authorities may suffice to show that the court did not err in admitting the declarations, as shown by the record.

The other points raised by the assignments of error were not insisted on in the argument.

We are unable to discover any error in the judgment, and it is consequently affirmed.

DECLARATIONS OF PARTY, WHEN EVIDENCE FOR HIMSELF as part of the res gesta: See Ross v. Bank of Burlington, 15 Am. Dec. 664.

DECLARATIONS AS TO TITLE: See, further, Jackson v. Brand, 4 Am. Dec. 267; Jackson v. Davis, 15 Id. 451; Norton v. Pettibone, 18 Id. 116; Dorsey v. Dorsey, 6 Id. 506; Corbin v. Jackson, 28 Id. 550; Johnson v. Patterson, 11 Id. 756.

DECLARATION CONCERNING BOUNDARY: See Jackson v. McCall, 6 Am. Dec. 343; Deming v. Carrington, 30 Id. 591, and note, where the subject is discussed. PAROL DECLARATIONS NOT ACTED UPON, not evidence: See Barnard v. Pope, 7 Am. Dec. 225.

ROBERTS, EX'R, v. TRAWICK ET AL.

[17 ALABAMA, 55.]

HEIRS OF DECEASED PERSON ARE COMPETENT WITNESSES to disprove a will by which they would take a greater share than under the statute of dis. tributions, but they would be incompetent to support it.

DECLARATIONS MADE BY TESTATOR a short time before the execution of his will are admissible in evidence to prove fraud in its execution.

TO ESTABLISH UNDUE INFLUENCE IN THE PROCUREMENT OF WILL, it is sufficient to show that the will was executed afterwards under the con