
    McGEHEE vs. MAHONE.
    [DETINUE FOR-SLAVES.]
    3, ;Admissibility of „ subsequent declarations explanatory of admissions.— Plaintiff! having -proved, that the slaves in controversy were not included by the defendant in tlie schedule of his taxable property, which was rendered to the assessor on oath, and wore included in the schedule of the plaintiff’s property, which was given in at the same time by his son, in the defendant’s presence; the defendant cannot he allowed, for the purpose-of rebutting- the presumption arising from this evidence, to prove that he afterwards corrected his schedule, and what reasons ho then assigned to the assessor for his former conduct; and the fact that, when first, giving in his schedule, “he asked leave of the assessor to correct any mistake, and said something about getting advice,” does not affect the principle.
    2. Admissibility of party's declarations as evidence for him. — The declarations of a party are, prima facie, not admissible evidence for him; and the fact that a witness, when cross-examined, “for the sole purpose of contradicting him,” touching his own declarations at a particular time and place, states, “that he caimot-(answer the question without giving the declarations of the defendant made at the same time,” is not, of itself, sufficient to show error in the,exclusion of the defendant’s declarations.
    S. Bailor's right to' terminate bailment. — If the bailor of slaves, when delivering possession to the bailee, declares that he gives or lends thorn to her, “hut subject to his call at any time,” his right to terminatetho bailment, and reclaim the slaves, is not necessarily limited to tlialifc. time of the bailee.
    Appeal from the Circuit-'Corará of Butler..
    Tried before the Hon. Nat. Cook.
    This action was brought- by Thoinas-Mahon®,, against Augustas McGehee,-to recover several slaves,-together with damages for their detention.. If appeared from.- the evidence on the trial, that the slaves hadrance belonged to the plaintiff, and had been either given or loaned by him to bis daughter, who married the. defendant in. April, 1856, and died about one year afterwards, leaving.an infant child, who also died before the commencement of the suit. The defendant’s evidence conduced to show,' that the plaintiff gave the slaves to his daughter, by parol, some time before her marriage, and afterwards retained them, under a contract of hiring, until the close óf the year 1856, when he sent them to the defendant’s house; while the plaintiff’s evidence tended-to show, that he delivered the slaves to the defendant,-after his marriage with plaintiff’s daughter, under a loan or bailment, and declared at the time, “that he gave or loaned them to defendant’s wife, but subject to bis call at any time.”
    
      “The plaintiff proved, that, after. the death of the defendant’s wife, his son and the defendant went together to the tax-assessor, to give in their taxes, and had some conversation between them as to giving in the slaves in controversy? that the defendant did not give in said negroes to the assessor as his property, and swore to his schedule of taxable property ; that said negroes were given in at the .same time by plaintiff's son, in defendant’s presence, as the property of the plaintiff; and that the defendant remarked, when he gave in his list, that he had intended to give in said negroes, but that plaintiff’s son had relieved him of .that. It was further shown, that defendant and plaintiff’s son then left the assessor, and wont home, and did not again return together to the assessor. It was shown, however, that the defendant, at the time of giving in his taxes, asked leave of the assessor to correct any mistake, and said something about getting advice. To rebut the presumption arising from bis failure thus to give in said slaves to the assessor, the defendant offered to prove, by the assessor, that on the same clay he gave in his taxes, but on another occasion, he corrected his tax-list, by giving in said slaves as bis own.. The court rejected this evidence, at the instance of the plaintiff, and -the defendant excepted. The defendant further offered to prove, for the purpose of rebutting the said presumption, that be said to the assessor as aforesaid, (the plaintiff not being present,) that the reason why he did not give in said negroes in the first instance, and asked leave to correct his list, was, that he wished to see one Morrison, {who had heard plaintiff say, before his daughter married the defendant, that said negroes were the property of his daughter, and that lie was paying hire for them,) that he had seen said Morrison, and that Morrison had stated what plaintiff had said about the negroes. The court refused to permit this proof to be made, and the defendant excepted.’’’
    “The plaintiff introduced one William F. Malione’ as a witness, wbo testified to declarations of the defendant, after ¡the death of his wife, as to the ownership of the said negroes, and in disparagement of his title, made on the day of giving in the tax-list. On cross-examination of said witness, and for the sole purpose of contradicting him, the defendant proposed, to ask him, what he (said witness) had said to one Morrison, at said Morrison’s store, three or four days after the tax-list was made, as to the declarations of the defendant he had proved on the day of giving in their taxes ; and the court sad, that the question might be asked. The witness stated, that he could not answer the' question, without giving the declarations made at that time by the defendant, who was present with him and Morrison; and the court said, that the declarations of the defendant could, not be given; to which the defendant excepted.”'
    “The defendant asked the court to charge the jury, that if they found, from the evidence, that there was no valid gift of the slaves before the marriage of plain tiff’s daughter with defendant; and that the plaintiff said to the defendant, at the time the negroes were delivered into the defendant’s possession, that he gave or loaned them.to defendant’s wife; but subject to his calf at any time ; and-that he never did call for them, or make them subject to his order, during the life-time of the defendant’s wife, — then the plaintiff' could not recover in-this action.”' The court refused'this charge,, and the defendant excepted to’its refusal.
    Tin* rulings of the court on the evidence, and the refusal of the charge asked; are now assigned as error.
    Watts, Judse & JacksoN, for appellant.
    1. The case of Traun v. Keijfer and Wife, (31 Ala. 1-36,) is conclusive on the first two assignments of error. Pearsall v. McCartney, (2s Ala. 110,) cited for the appellee, is opposed to the current of authority. — 1 Dan. Ch. Pr. 455, note 1; 1, Phil. Kv. 3-59 ; 1 Paige, 124.
    2. The proper predicate was laid to impeach the witness Mahoue ; and if his declarations were competent evidence for that purpose, the declarations of the defendant, constituting a part of the same conversation, thereby became competent also. The declarations of defendant, in such case, stand on the same footing with the decl; rations oí third persons, which are always received, though mere hearsay ; and to exclude such declarations, whether made by a party or by a third person, vp-uM,-in-most cases, deny the right to impeach a witness by proof of contradictory statements.
    D. W. Baixe, with ’GtOI/dthwaite, RrcE ’ & ■ Semple, contra.
    
    -1.- T-he-corrected'taxlist was the best evidence to prove the- correction, and should have been produced,- or-its absence accounted for,-before the same-fact- eould be-provdS-by the assessor. — Smith v. 'Armisteacl,-7 Ala. -698; Cole v. Spann, -IS.‘Ala. 537; Ware-v. Boberson, 105.
    2. The defendant’s subsequent, declarations- to ■ the assessor, dovmed-no -part of the transaction- proved by the plaintiff, and were not made in the plaintiff’s presence. Stewart o. Sherman, 5 Conn. 244-y-Ogden n. Peters, 15 Barbour, 562; Roberts v. Traivick, 22 Ala. 493; Smith v. Cure-ion, 31 Ala. 652. That the ■defendant, when giving-in his tax-list, asked or reserved the right to correct miseake^ makes no difference in the application of the principle; he had the right to correct mistakes, without such reservation. The case of an -original and amended bill in chancery- is analogous. — Pearsall -v. McCartney, 28 Ala. 110.
    3. The proper -question was not asked to impeach the witness Mahone. — ri--Greenl. Ev.-5-íé. If the question bufd been proper, non constat that the defendant- was injured by the ruling of the court, since the record does not-show that the declarations of the witness were excluded. The declarations of the defendant were, at least prima facie, incompetent evidence for him ; arid it was incumbent on him to show some special circumstances which-justified their admission.
   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.

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.

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.  