The distinction between the admissibility of evidence and its sufficiency, was lost sight of in the court below. However weak evidence maybe, if it is pertinent, and tends to establish a fact material to the case or defense, it is admissible. The question of its sufficiency is for the jury, under proper instructions from the court.- — -Smith v. Armstead, 7 Ala. 698; P. & M. Bank v. Borland, 5 ib. 531; Wallis v. Rhea, 10 ib. 451; Cuthbert v. Newell, 7 ib. 457; Bates v. Terrell, 7 ib. 129.
It is obvious from the bill of exceptions, that the fact of a sale, by Sherrod Sanders to William Sanders, in the latter part of 1845, of the negroes and horses mentioned in the deed executed by the latter in 1849, was a material fact; and that the plaintiffs were entitled to prove it by any competent evidence. The true question, therefore, as to this matter, is, whether any of the evidence offered by the plaintiffs to prove that fact, and excluded by the court, was competent for that purpose.
No bill of sale, or other writing, is essential, in this State, to pass the title to slaves, horses, or other personal chattels. And the evidence of the witness Green Sanders, that in Perry county, in the latter part of 1845, under the circumstances detailed by the witness, William Sanders “entered into a verbal agreement with Sherrod, for the purchase of said negroes, and all the stock, horses, &c., of Sherrod about-the farm, and thereupon the said property was all delivered by Sherrod to said William Sanders,”— was competent. To say the least of that evidence, it tended to prove a sale by Sherrod to William at that time; and the court below erred in excluding it. Eor, conceding that other portions of the evidence of the same witness tend to show that the verbal agreement for the purchase, accompanied by the actual delivery, was not intended to pass the title ; yet that concession would not render inadmissible the evidence of the verbal agreement and the delivery, nor *437justify the court in excluding it from the consideration of the jury. If that evidence had been admitted, no court can say or know that the plaintiffs would not have proceeded to prove the terms of that purchase, and to introduce such evidence as would have convinced the jury that the title to the property passed to "William at that time, and that it was the mimiionofSherrodthatitshould so pass. And it is very clear that, if the title did pass to William Sanders at that time, neither a mere subsequent change in the mode oí payment, nor a mere subsequent acceptance of a bill of sale for the property from Sherrod Sanders, would divest or affect the title which had passed by the previous transaction, nor operate as a rescission of that transaction. — Caraway v. Wallace 2 Ala. 542. But if it be conceded, that such change in the mode of payment, and the execution of such bill of sale, would divest the title which had vested in William by the previous transaction, and operate as a rescission of that transaction; yet it is certain that the court below was not authorized to assume ike credibility and conclusiveness of the evidence which tended to prove such change in the mode of payment, and the execution ox such bill of sale, and upon that assumption to proceed to exclude from the jury the evidence -which tended to prove the prior verbal sale and delivery. — Cuthbert v. Newell, supra; Terrell v. Bates, 7 Ala. 129.
Nothing appears in the bill of exceptions, which can estop the plaintiffs from proving that the title to the property passed to William Sanders by the transaction between him and Sherrod in Perry county; and if that proof is made, the plaintiffs may be able to recover, without resorting to the bill of sale, which was subsequently executed by Sherrod to William in Mobile. If a man acquires title to personal property by a verbal sale, his mere subsequent acceptance of a bill of sale from his vendor, without any rescission of the verbal sale, cannot estop or exclude him from proving and relying on his title acquired under the verbal sale. The design and intention of the parties, in executing such bill of sale, may have been merely to furnish “more certain and permanent evidence of a subsisting ver*438bal contract” of sale. — Caraway v. Wallace, supra; Adams v. Davis, 16 Ala. 748. And in such a case, the failure to produce the bill of sale, or to account for its non-production, does not have the effect of excluding evidence of the prior verbal sale. — Allen v. Pink, 4 Meeson & W. 140.
In determining the question of the admissibility of the evidence, the court below gave undue weight and effect to the failure of the plaintiffs to produce the bill of sale, or to account for its non-production. That failure does not go to the admissibility of the evidence, but may perhaps go to its credibility or weight.
A special application of the views above expressed to each ruling of the court below upon the evidence, is deemed unnecessary. We think it enough, in connection with those views, to declare that, for the errors above pointed out, the judgment is reversed, and the cause remanded.