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 thé 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*326mark 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 ihe 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 judgment of the County Court is reversed, and the cause remanded»