1. We have repeatedly held, in conformity with the generally received doctrine, that the declarations of a party in the possession of real or personal property, that he held it in his own right, or under another, is proper evidence as a part of the res gestee, which res gestee is his possession, but such declarations beyond this, are no part of the subject matter, or thing done, and cannot be received as evidence, upon the hypothesis that they are. The citations by the plaintiff in error, establish this proposition.
The answer of plaintiff, when applied to by Shannon to borrow money, that he had no money of his own, but had some belonging to Simmons, for wood sold for the latter, which he had no doubt that Shannon could get, if Simmons did not want it, perhaps does not appear to have been made simultaneously with the payment of money to the latter. Simmons was not present when the conversation took place, but “drove up immediately after”.it had terminated, when the plaintiff handed him “ a roll of money, probably about §100.” Whether Shannon remained with the plaintiff until Simmons’s appearance, or the subject of the conversation had not been dismissed, does not distinctly appear; but if necessary, it should perhaps be intended in favor of the decision of the circuit court, that it was not continuous, and a part of the act by which the plaintiff handed the money. Be this, however, as it may, the declarations are not admissible to the extent to which they go, viz : to show that the plaintiff had no money but what belonged, to Simmons. The payment *776to the latter, of a sum supposed to be $100, was the res gestes, and declarations as a part of this, which was the thing done, are proper evidence to explain it. But the declarations which were offered, went beyond the res gestes, and tended to show, not only that the payment of the $100 was bona fide, but that the plaintiff had no more money. Thus, we see, that that which it is insisted was a part of the transaction, is greater than the whole, and the citations to which we have referred, clearly establish that it was properly rejected.
It certainly cannot be inferred, from any thing in the record, that the declarations were against the interest of the plaintiff, so as to legalize their admission upon that ground. We will further add, that we cannot very well perceive, from the case as presented, how the rejected testimony could explicate the question of fraud in obtaining the certificate of bankruptcy — the proceeding upon which it is founded not being instituted until six months after the conversation referred to.
2. The remark of Simmons, in the presence of the plaintiff, that the latter was hauling wood on his account, were rightly rejected at the trial. It does not constitute a part of the fact of hauling, but it asserts something independent of it, viz: that the dray and team employed, or the wood hauled, were Simmons’s, and that the plaintiff was in his service. In McBride and wife, et al. v. Thompson, 8 Ala. Rep. 650, we said, “ while it is allowable to prove statements of one in possession, and explanatory thereof, it is not permissible to show every thing that may have been said by him in respect to the title; as that it was acquired bona fide, and for a valuable consideration ; was paid for with the money of a third person, or his own,” &c. Here, it does not appear that Simmons was in possession of the dray and team, although he may have been the proprietor of the land from which the wood was cut, yet there was no res gestee with which his declarations can be legitimately connected, or to which they are properly referable. They go quite beyond the business in which the plaintiff was engaged, and tend only to establish Simmons’s right to the profits which resulted from it.
True, we have often held, that where a party states a fact in the presence of another, which the latter is interested to *777dispute, if he is silent, his assent to the statement may be inferred. But, in the present case, there is nothing to warrant the presumption, that the plaintiff’s interest was opposed to the assertion of Simmons, even if the affirmation of Simmons, could, by implication, be made the declaration of the plaintiff. Conceding, however, that such is its effect, and still, it may be asked, if the plaintiff could make evidence for him, by declaring that he was in another person’s employment ? To maintain such to be law, would require the admissibility Of declarations, as connected with the res gestee, to be carried beyond ail precedent, tha.t has come under our observation.
3. A witness, offered at the instance of the defendant, testified, that in 1845, he hired of Lemuel Gilbert two slaves, the latter representing himself as the agent of the plaintiff— the witness subsequently paid a “ portion ”• of the hire for these slaves to the plaintiff, who,received it as hire; another portion he paid to a third person, but in what character it was received by such person, does not appear, The question arising upon these facts, is, whether the declarations of L. G., as to the character in which he hired the slaves, were admissible. It is an established rule, that the fact of agency must first be shown, before the declarations of the supposed agent can be received as evidence. Strawbridge v. Spann, 8 Ala. Rep. 820; Scarborough v. Reynolds, 12 Ala. R. 252. For this purpose, the admissions of the principal are evidence, or the agency may be proved by the agent as a witness. 2 Phil. Ev. C. & H.’s Notes, 188, 189. These citations are quite sufficient to show, that the declarations of Lemuel Gilbert were inadmissible to prove he was the agent of the plaintiff. Yet, if L. G. was in possession of the slaves at the time he hired them to Shannon, his declaration that they were the property of another person, was admissible as a part of the res gestee, to show that- he did not claim them as his own. McBride and wife, et al. v. Thompson, 8 Ala. Rep. 650, is an authority directly to the point. That he was in possession at the time, must be intended in favor of the judgment of the circuit court, as the bill of exceptions does not negative the fact, and it appears that Shannon received the slaves under his contract. If, the plaintiff supposed the jury would regard the declaration as establishing the fact of agen *778. cy, he should have prayed the court specially to instruct them, that it could not have that effect, and to point out the purpose for which it was admitted. - No exception was taken to the testimony, tending to show a subsequent ratification of the' hiring by the plaintiff', and if there had been', we should incline to think, that it was entirely competent-.-
4. In Hargroves v. Cloud, 8 Ala. Rep. 173, we said, the possession of property by a bankrupt, at the time of his discharge, or immediately after, which by industry he might reasonably have acquired, does not warrant the presumption-, that he did not make a full surrender of his estate; but if the value of the property is so great, as to make it improbable that it was earned since the filing of the petition in bankruptcy, it devolves upon the bankrupt to show how he': became the proprietor of- such property, when his discharge -is impugned for fraudulent or wilful concealment. Under the authority of the principle of this decision, it was clearly competent for the defendant to have inquired into the extent of the plaintiff’s planting interest in Louisiana, even four years after he obtained his certificate, that the jury might determine, from all the-facts, as to his sources of income, whether that interest has not been acquired, or increased by the intentional concealment of his estate from the court that ajudged him a bankrupt. The testimony upon this point was properly received.
5. It appears, that slaves, supposed tó be the property of the plaintiff, had been levied on-under the execution, which it was the object of the present proceeding to quash that these slaves were claimed by Mrs. Simmons, as executrix1 of her deceased husband, which claim was still pending, and undetermined. A son of the testator, and a: joint legatee of his whole estate, with others, of which no final distribution had been made, was- offered as a witness for the plaintiff. -Young Simmons was clearly an - incompetent witness — his interest extended beyond the question litigated, and was an interest in the result of the controversy, in respect to which he was required to testify. If the execution was quashed, then it would become inoperative, and the levy, which rested upon the continuance of its efficacy, would fall with it; the plaintiff in execution, on whom the onus lies of proving the liabil*779ity of the property levied on as against the claimant, would fail to prove the first, and indispepsable fact, viz.,.that there' was an operative execution to support the levy; consequently, the claimant would succeed. Blount and Stanley v. Traylor, 4 Ala. Rep. 667. This view is sufficient, to show the interest of the witness in the plaintiff’s success, and he was therefore properly rejected. The result is, that the judgment of the circuit court mfist be affirmed.'