
    No. 44.
    Jubilee Smith, plaintiff in error, vs. James R. Cox, defendant in error.
    
       The sayings of the defendant in the ji. fa. on which a claim case is founded, if against his interest when made, and made before the commencement of the suit which resulted in the fi.fa. are admissible as evidence for the claimant.
    Claim, in Marion Superior Court. Decided by Judges ‘Worrill, March Term, 1856.
    Three /?. fas. in favor of James R. Cox against Palestina Smith, issuing from judgments obtained at the May Term, 1852, of the Justice’s Court of the 807th district, G. M. of Marion County, were levied on a house and lot, and the property claimed by Jubilee Smith.
    At the trial in the Court below, the claimant relied on a. deed from the defendant in execution to him to the premises’ in dispute, bearing date the 9th day of March, 1852 — the consideration expressed in said deed being eleven hundred dollars. This deed was attacked on the ground of fraud, and several witnesses who were present when the contract of purchase was made, were examined; all of whom testified, that they saw no money paid — one or two of them stating that they saw some papers cancelled by the parties, but did not know what kind of papers they were. One of the witnesses also stated, that he knew defendant in fi. fas. owed claimant if50 prior to the 9th of March, 1852.
    
      Claimant then proposed to prove by Thaddeus Oliver, u that before the commencement of the suits on which plaint tiff’s judgments were rendered, to-wit: in the fall of 1851, defendant in fi. fas. said to the witness, that he (defendant) was owing claimant a large sum of money, and wanted to sell the house and lot in dispute to raise money to pay claimant, and offered to sell said house and lot to witness at the time he made this statement.” This testimony was objected to by Counsel for plaintiff in fi. fas. and ruled out by the Court. The witness went on to state, among other things, that defendant in fi. fas. was insolvent in March, 1852, and was in failing circumstances prior thereto.
    The Jury found the property subject, and claimant excepted ; and assigns as error, the refusal of the Court to admit the testimony of Oliver, in reference to the statements of the defendant in 1851.
    Smith & Pou, for plaintiff in error.
    Blandford & Crawford ; Miller & Hall, for defendant in error.
   By the Court.

Benning, J.

delivering the opinion.

We think that the Court erred, in not permitting the plaintiff to prove by the witness, Oliver, the sayings of the defendant in the fi. fa. These were uttered by the defendant at a time when it was against his interest to utter them. They were uttered before the suit of the plaintiff in the jft. fa. had been commenced. And it is a general principle, that sayings which, when made, are adverse to the interest of the utterer, are evidence against him, and all who stand in privity with him by a title arising subsequently to the sayings.

In the case of Williams vs. Kelsey Halsted, the declarations of the defendant in the claim fi.fa. were not made until after the judgment had been rendered against him; and consequently, not. until after the property, if his, had become • bound by the judgment.

Besides, that was a case in which the claimant claimed by ■ title derived from the defendant. If the defendant was bound to uphold that title, his interest was balanced. (6 Ga. R.)

At all events, that case is not precisely like this; and we - think that case one not to be extended in the least.

The question involved in this case, we have already decided in another case, returned to this term — the case of Ross & Leitch vs. Horn, claimant — to which I refer.  