Weathers v. Spears. APPEAL from the Chancery Court of Randolph. THIS bill was filed by William Spears to redeem certain lands which were sold under execution against him, and were purchased by the appellant. The judgment, on which the execution issued, was rendered on the 7th November, 1844, for $100 debt, and $18 21 costs; and the lands were sold on the first Monday in February, 1845, and were purchased by the appellant, who was the plaintiff in the judgment, for $32 12. A tender was made of the amount required by the statute, on the 28th January, 1847, but the defendant refused to reconvey. The cause was submitted for final decree, on pleadings and proof, at the August term, 1853; when the chancellor rendered a decree, holding that the complainant was entitled to the relief sought, and ordering a reference to the master to state an account. Under this reference the master reported, at the August term, 1854, "that the sum due the defendant for the amount bid by him at the sheriff's sale, at the rate of ten per cent. per annum, from February, 1845, to January 28, 1847, is $12; that from the date of the sale to the 28th January, 1847, the defendant made valuable and needful improvements, by clearing, fencing, &c., worth $25, and since that time, by clearing three acres of land, worth $9; and that the value of the rents and profits, from the date of the sale to said 28th January, 1847, is $40 90, and since that time $255." This report was confirmed at the same term, and a final decree was rendered, in which it was ordered, adjudged, and decreed, that defendant convey to complainant, before the first day of January next thereafter, by quit-claim deed, the lands in controversy; and further, "it appearing to the court that the rents of the land exceed the amount of the purchase money and improvements, by the sum of $242 60, it is ordered, adjudged, and decreed, that defendant pay to complainant said sum of $242 60, for which execu tion may issue." From this decree the defendant now appeals, and here assigns the same for error. C. D. HUDSON, for appellant. Weathers v. Spears. RICE, J.-There is, at least, one palpable error in the decree of the chancellor. It consists in adjudging, that the defendant convey "the land" described in the decree to the complainant by quit-claim deed. The statute authorizes the judgment debtor to redeem only "the interest that may have been sold" at the execution sale.-Clay's Dig. 502, § 1. The court ought not to have gone beyond the statute. It may be that the defendant owns some other interest than "the interest" which he acquired at the execution sale. If he does, the chancellor had no authority, under the present bill, to deprive him of it. But the decree, as it now stands, would have the effect to deprive him of it; because the deed, which the decree requires him to execute, will, when executed, deprive him not only of "the interest" which he acquired at the execution sale, but of all other interest which he may own in the land at the execution of the deed. As the decree must be reversed, and the cause remanded, for the error above noticed, we take occasion to say, that we cannot see why the chancellor, upon the report of the master, should have decreed that the defendant pay to the complainant $242 60, unless the chancellor supposed it right either to refuse to allow defendant lawful interest on his purchase money from and after the tender and refusal, or to hold him liable for the excess of the rents and profits which accrued before the tender and refusal, over the improvements made. If the chancellor entertained either of these suppositions, he was in error. The rents and profits, which accrued before the tender and refusal, may be set off against the improvements made; but if they exceed the value of the improvements, the defendant is not liable for such excess. He is liable, in such case, only for the rents and profits accruing after the tender and refusal.-Spoor v. Phillips, at the present term. And he is entitled to a credit or allowance for his purchase money, and ten per cent. interest thereon until the tender and refusal, and to eight per cent. interest on the purchase money from the day of the tender and refusal. The decree is reversed, and the cause remanded, for further proceedings not inconsistent with this opinion. 27 458 94 161 Martin v. Hardesty. MARTIN vs. HARDESTY. [ACTION UNDER CODE TO RECOVER DAMAGES FOR MALICIOUS PROSECUTION.] 1. Evidence of plaintiff's general bad character admissible.-In an action to recover damages for a malicious prosecution for larceny, the defendant may introduce evidence of the plaintiff's general bad character, showing that his only occupation was that of gambling and horse-racing; since it would require less stringent proof to make out probable cause for prosecuting a man of such character, than one who had always maintained a good reputation and followed a lawful occupation. 2. Admissibility of declarations of ownership, when accompanied with possession, and when referring to past transactions.—Declarations of ownership of a slave, when accompanied with possession, are admissible evidence as a part of the res gesta; but declarations referring to a past transaction are mere hearsay, and therefore inadmissible. 3. General objection to evidence, of which part is legal.-A general objection to evidence as a whole, when a part of it is legal, may be overruled. 4. Hearsay inadmissible.—A witness, who saw two persons engaged in writing, cannot testify to the character of the writing from what one of the parties afterwards told him respecting it: such evidence, relating to a past transaction of which the conversation formed no part, is mere hearsay. 5. Malicious prosecution.-The cases of Leaird v. Davis, 17 Ala. 27, Long v. Rogers, ib. 540, same parties, 19 b. 321, Ewing v. Sanford, ib. 605, and 21 ib. 157, cited and approved. APPEAL from the Circuit Court of Perry. Tried before the Hon. ANDREW B. MOORE. THIS action was brought by George C. Hardesty against Levi Martin, to recover damages for a malicious arrest and imprisonment on a charge of larceny, and was commenced in February, 1853. The only plea was, not guilty. It ap peared from the evidence that Hardesty was arrested in Mobile, in January, 1853, on a charge of having stolen a slave named Jane, preferred against him by the defendant in this action, and was imprisoned for several days in the city guardhouse; that he claimed to have received the slave from one Oran Martin (a brother of said Levi), who gave him a power of attorney to carry her to Mobile and sell her. The defendant introduced evidence, tending to show that he had purchased said slave from Oran Martin, in July, 1852; that pos Martin v. Hardesty. session was to be given up to him on the first of January, 1853; that Hardesty, at the time he carried away the slave, held defendant's notes for the purchase money, claiming them as his own, and knew that defendant claimed her, and heard defendant tell Oran Martin, on the 1st January, 1853, to send her home to him. The plaintiff, on the other hand, introduced evidence tending to show that this sale was fraudulent. A great many exceptions were reserved to the rulings of the court on the evidence; but it is only deemed necessary to notice those which are reviewed by this court. The defendant offered in evidence the deposition of said Oran Martin, who was asked, among other questions, "Do you know the general reputation of the plaintiff in the neighborhood where he lived in the last of the year 1852? Was his reputation good or bad"? Witness answered, that he did know plaintiff's general reputation; that his reputation was bad; that he lived at his house, aud gambled and horse-raced a little, and had no further occupation." The plaintiff objected to this question and answer, and moved to suppress them; which motion was sustained by the court, the evidence suppressed, and defendant excepted. "At the time this testimony was offered," as the bill of exceptions states, "the plaintiff disclaimed, in the presence and hearing of the court and jury, all right to recover anything on account of any damage to his character." "The plaintiff introduced one Henry Chambers as a wit ness, who testified, that Oran Martin, while in possession of the negro Jane, told him that said negro belonged to him, that he had employed Hardesty to carry her to Mobile and sell her for him, and that he had given Hardesty a power of attorney for that purpose. The defendant objected to these declarations of Oran Martin, made to witness when defendant was not present, and moved to exclude them; but the court overruled the objection and motion, and the defendant excepted." The plaintiff introduced one Kennedy as a witness, who testified, that Hardesty and Oran Martin stayed all night at his house when the former was on his way to Mobile with the slave; that they got up before day, and asked him for pen, ink, Martin v. Hardesty. and paper; that they wrote something, but he could not tell what was written; that he did not see or read the writing. The plaintiff then asked witness, what Hardesty and Martin said they wished to write, or what they said they had written; and witness answered, that they said they were writing a power of attorney, but did not say for what purpose. To this question and answer the defendant objected, but the court overruled his objection, and he excepted. The plaintiff then asked witness, whether or not Oran Martin had afterwards told him what the paper was which they were writing at his house; and the witness answered, that Oran Martin returned to his house, a short time after he and Hardesty had left, and told witness, that the paper which Hardesty wrote was a power of attorney from him to Hardesty to sell the slave Jane, and that he (Martin) had signed it. To this question and answer the defendant objected, and moved to exclude the same from the jury; but the court overruled his objection, and defendant excepted. These rulings of the court, with other immaterial matters, are now assigned for error. J. R. JOHN and Wм. M. BROOKS, for appellant. I. W. GARROTT, contra. CHILTON, C. J.-We are of opinion that the court erred in excluding the evidence of the bad character of Hardesty from the jury; and that his only occupation was that of gambling and horse-racing. It would certainly require less stringent proof to make out probable cause for prosecuting such a character for larceny, than one who maintained a good character, and followed an occupation for a livelihood altogether lawful. The testimony of Chambers, "that Oran Martin told him, while in possession of the slave alleged to have been stolen, that said slave belonged to him, and that he had given Hardesty a power of attorney, and employed him to take her to Mobile and sell her", &c., was, when taken in connection with the other proof, partly legal, and partly improper. It was proper to prove that, having the possession, he said he was the owner, as this was explanatory of the possession, showing |