The law-which must govern this case is simple and easy of application. Both parties claim under a purchase from Blake Little, — Hair, by bill of sale, dated 26 th May, 1848; and the plaintiffs below, by conveyance, dated the 29th of the same month. Each party insists that the purchase of the other is fraudulent and void. Hair, having the possession, and being the defendant, was entitled to hold the slaves, unless the plaintiffs below could show a right to the property. The plaintiffs in this, as in all cases, to maintain their action, must show a right to recover. Until this is done, the defendant may remain passive. Of course, we *247confine our remarks to those cases in which the onus is not, by the pleading, cast upon the defendant.
1. The deed to the plaintiffs purports to have been made upon a valuable, a moneyed consideration, in hand paid. It appears that only $800 in money was paid, and the balance was to be paid in discharge of certain demands due and owing from the grantor. Proof of the undertaking to pay these demands, as a part of the consideration, was objected to by the defendant, but was allowed. This proof was properly admitted. It did not vary the legal effect of the deed,and was notinconsistent with the consideration expressed, which was.auaiwa&ie consideration. — 4 Phil. Ev. pp. 619-620, n. 309, ed. 1850.
2. The objection taken to the testimony of Blake Little cannot be sustained. Concede that his interest is not balanced, and that he was interested; yet the defendant .should have raised that objection distinctly before he was examined, as he must have been apprised of his interest when the interrogatories propounded to him were crossed. — Hudson v. Crow, 26 Ala. Rep. 515.
3. The declarations of Buffington, which were objected to, were properly received. He was in the actual possession of a portion of the property in controversy; and his declarations tended to explain that possession, and were evidently part of the res gestae, and as such admissible.
4. If Jones acted in concert with Hair, and was guilty of the joint trespass complained of, he was guilty to the same extent with Hair; and if the latter did acts which would authorize the jury in giving exemplary damages, Jones, acting in concert with Hair, is liable with him, and to the same extent. — Layman v. Hendrix, 1 Ala. Rep. 212, and cases there cited.
5. We cannot say that there was no proof at all tending to show that the jury might not go beyond the actual damage. The question of its sufficiency was not raised in the court below, and is not before us. We are of opinion that the first charge as to smart money was not wholly abstract. The evidence may have been exceedingly weak; but, if there was any proof tending to show circumstances of aggravation, it will support the charge.
*2486. There can be no question, that the party who alleged fraud in the purchase of the other was bound to prove it. The law does not presume fraud — it must be proved. The respective conveyances are valid upon their face. When impeached for fraud, the onus is changed. The party whose deéd is thus impeached, must then overcome the evidence of fraud by counter evidence of its fairness.
7. As to the criteria of damages given to the jury by the first charge, we see nothing improper. The charge announ*. ces the proposition, that the jury may give the highest value of the property at any time between the taking and the trial, and interest thereon, or they might look to the value of the property and hire as some guide in coming to a conclusion, but were not bound by them. The question was, what injury the plaintiffs had sustained by the trespass and the taking away of their property. All the evidence was before the jury; and we think there was no error in saying to them, that, the value of the property, as well as of the hire, is some guide, though not conclusive, in - arriving at a conclusion as to the injury.
8. We decided at the last term that exemplary damages, or “ smart money” as it is sometimes called, may be recovered, where the circumstances justify it, in actions of trespass. Parker v. Mise, 27 Ala. 480.
9. As to the playful remark of the judge, in illustration of the object of giving exemplary damages, and the measure of such damages, it is only necessary to remark, that, while we are-satisfied his honor did not" intend to give to the jury any intimation as to what he thought their finding upon the facts should be, yet, it was calculated to impress them with the belief that the judge thought the facts such as would require them to give heavy exemplary damages. It ,is of the highest importance in the administration of justice, that the court should never invade the province of the jury, — should give them no intimation as to his opinion upon the facts, but should leave them wholly unbiased by any such intimation, to ascertain the facts for themselves. We cannot shut our eyes to the fact, that juries, especially in cases which are strongly litigated.upon the facts, watch with anxiety to- gather from the court some intimation as to what the judge thinks should *249be their finding upon the facts. They do not usually fully comprehend the lino of demarkation which separates the duties of the court from those of the jury. It would not readily occur to one, uninstructed in the legal profession, why the judge, who is a sworn officer of the law, impartial as between the .parties, sitting upon the trial of the cause, and who hears all the evidence, might not, with much propriety, give his opinion as to the'result of the facts. Hence the jury, in the most perfect good faith, are ordinarily inclined to give weight to what they suppose to be the inclination of the mind of the judge upon the facts. But it pertains to the judge to declare the law applicable to the case. He has nothing further to do with the facts, than as furnishing the basis for his charge; while the jury are the triers of the facts under the law as given them in charge by the judge, who, upon contested questions of fact, should sedulously avoid giving the least intimation as to his own opinion. After they have found their verdict, the judge may then act upon his opinion of the facts in awarding a new trial, if he thinks the jury have found wrong. We think the illustration, though playfully given by the court, was well calculated to mislead the jury, — was an invasion of their province, and cannot be supported as a correct application of the rule as respects the question of exemplary damages.
10. The first charge given at the request of the plaintiffs below, cannot be supported. Conceding the validity of Hair’s purchase, and of his hiring to Mrs. Little, the subsequent absolute sale was in contravention of the rights of the bailor, contrary to the design of the bailment, and a clear violation of the contract by which Hair agreed that the slaves should be kept by Mrs. Little. The absolute sale to the plaintiffs by Blake Little enabled the purchasers to hold, from that time, adversely to Hair; and if the court was correct in this charge, then, if the hiring had been for seven years, the right of Hair to the property might have been defeated; for, if the purchasers are entitled to hold as having purchased the term, under their claim of the absolute interest, for a period of more than sis years, their title would be perfected by the statute of limitations. Such is not the law. The moment the bailee dis-affirmed the contract of bailment, and sold the *250property in derogation of tbe rights of the bailor, — thus using it in a manner not contemplated by, but in violation of the contract, — the bailor had the right to resume his property, if he could get possession peaceably; and the record in this case shows no evidence that any force was used. — See Stark. Ev., pt. 4, p. 1491; 2 Strob. Eq. 475, note.
For the errors noted, let the judgment be reversed, and the cause remanded. *