It is certainly indisputable that a trial of the right of'property, under our statute, is an action or suit, in which the plaintiff in execution is deemed the actor, and the claimant the defendant. — Jacott v. Hobson, 11 Ala. 434; P. & M. Bank of Mobile v. Borland, 5 Ala. 531. Being an action, it clearly falls within the purview of the statute exacting security for costs from non-resident plaintiffs before commencing their actions, unless something else than the mere fact of its being an action is requisite to make the statute applicable to the case.
The statute is section 2396 of the Code, and its language is: “All actions commenced by or for the use of a non-resident of this State must be dismissed, on motion, by the court, unless security for the costs be endorsed on the complaint, or lodged with the clerk, previous to the issue of the summons; and the costs which have accrued must be taxed against the attorney directing the *481summons to issue.” If the letter of thelaw were followed, it would probably include only actions commenced by a summons with the accompanying complaint, and it would not have included trials of the right of property. But a more latitudinous construction has been put upon it, and that construction is now too well settled to be disturbed. Ex parte Robbins, 29 Ala. 71; Shepherd & Gordon v. Spriggs, ib. 673; Garrett & Bibb v. Terry, 31 Ala. 678.
The doctrine of those decisions was established through an equitable construction, which sought the spirit and intention of the legislature, at the sacrifice of the strict letter of the law. There are reasons for not so stretching the statute as to include trials of the right of property, which did uot apply in those cases. If it can be shown that trials of the right of property are commenced by the act of another than the plaintiff, and without any antecedent notification to him, it would involve the most gross and palpable injustice, to make the failure to give security for the costs a cause for the dismissal of the suit. It would be equivalent to saying to the plaintiff, By the act of another, without notice to you, you are made a plaintiff in a suit; and yet, because you did not anticipate the commencement of the suit, and gi-ve security for costs, your suit must be dismissed. Such a law would be kindred in its spirit to the conduct of the Born an emperor, who ensnared his people by writing his laws in small characters, and hanging them on high pillars. A court searching for an equitable construction of a statute, could never give it such an effect.
The trial of the right of property, under our statute, is a proceeding altogether suigeneris. There is no precedent for it known to us in the English law. Hence, there is much disputation in this case as to the precise point at which the action commences. This court has incidentally observed in argument, without having the question before it, that the execution was the leading process of the action. Pl. & M. Bank of Mobile v. Borland, supra. This remark was certainly wrong. The issue of the execution cannot be the commencement of a suit. It is not its aim or purpose to inaugurate a suit. In the execution of its *482mandate, tbe sheriff may do that which will become the predicate of a suit in detinue, trover, or trespass, or of a trial of the right 'of property; but it is not the commencement of any of those actions. . It is not known, when the execution issues, that there will be any claim to property levied on; and until the levy, the thing is not done which is the cause of the action. If, therefore, a suit exists from the issue of the execution, we have the absurdity of a suit without a defendant, and in advance of the cause which produces the suit. "We would have, too, the equally glaring absurdity of a suit without a pendency in any particular court; for the trial of the right of property is to be had in the county where the levy is made, and the ascertainment of the county, in the circuit court of which the trial is to be had, must, of course, await the levy.
If the execution does not commence the suit, the next inquiry is, whether it is commenced by the levy. In the way of making the levy the date of the commencement of the suit, there are also insuperable obstacles. At the levy, there is no defendant; and a suit would then be without a defendant. If the levy be wrongful, the injured person is not bound to resort to a trial of the right of property. He has hjs common-law remedies, which he may prefer. The statutory action is, therefore, not even a necessary consequence of the levy.
Indeed, it is too clear to require any argument to demonstrate it, that the action cannot commence before the assertion of the claim, by making the affidavit and giving the bond prescribed; for those acts are indispensable, and without them the action can never be; It is also plain, that the suit commences when the bond and affidavit are given, and not afterwards. Then the parties have done the last act to be performed out of court. The bond and affidavit are transmitted to the proper court, and thereupon an issue is made up. The suit is thus initiated by the bond and affidavit, as it is in ordinary cases by summons and complaint. This is not only shown by the geueral plan or scheme of the law, but by a consideration of some of its distinct provisions. Upon the execution of the bond, the property taken in execution is *483surrendered back into the possession from which it was taken. It cannot be that the law would thus arrest a creditor in the use of process for the collection of the debt, and take away from his reach the property, until he was protected by the actual pendency of the statutory suit, by which the bond might be available to him. Again, it cannot be that the death of the claimant, on the day after the date of the bond and affidavit, would deprive the plaintiff of his right to prosecute the statutory action. Yet that would be the result, unless the suit is commenced with the making of the bond and affidavit; for there could be no revivor against the representatives of one who was dead before the suit was commenced.
On the same point it may be further said, that the language of the statute clearly shows that the claim is interposed when the bond and affidavit are made, and the claim to damages thereby released. — Code, § 2594. It would present a singular inconsistency, if the law should hold that the claimant made his election, and. waived his right of suit against the sheriff, before the statutory suit for determining his claim was instituted. This question was indirectly passed upon in Wiswall v. Glidden, 4 Ala. 357, and it is inferrible from the opinion that the court regarded the suit as pending from the interposition of the claim, and each party as having the right to ask that it should be docketed.
Upon the reasoning and authorities above adduced, we feel compelled to dissent from the ingenious and elaborate argument for the appellant, and hold, consistently with what has been the uniform practice, that the statutory action is commenced when the bond and affidavit are given, and that subpoenas for witnesses might issue, and depositions be taken before the term ot the court nest succeeding the interposition of the claim.
From that conclusion it is a necessary sequence, that it is the act of the claimant which gives a commencement to the suit. Indeed, this court said in Wiswall v. Glidden, supra, that the suit was originated by the act of the claimant, thus deciding the question. Of this act by the claimant the plaintiff' is entitled to no notification; and it would *484be, as we think we have already shown, a monstrous proposition, that the claimant could, in his absence and without his knowledge, initiate a suit, to which he would stand in the attitude of a party plaintiff, and afterwards obtain a dismissal of the suit because security for costs was not giveii before the'suit was commenced.
[2.] It is true that, under the statute which was in force before the adoption of the Code, it was decided, that the plaintiff, in this form of action, might be required to give security for costs. — Jacott v. Hobson, 11 Ala. 434. But that statute was altogether different from the section of the Code upon the same subject. '' It provided merely that non-resident plaintiffs might be required to give security for costs upon sixty days notice. The principle, that the carrying into the Code a pre-existing statute is a legislative adoption of its previous construction, is, therefore, not in point.
Trials of the right of property are clearly not within the letter of the section of the Code, and to hold it within its equity would, as we think we have shown, have the sanction of neither precedent, reason nor justice. There was no error in the refusal of the court to sustain the motions made, because security for costs was not given before the commencement of the suit.
[3.] The portions of the answer of the witness, James McAdams, to the 5th, 7th and 9th interrogatories, and to the 2d a.nd 4th cross-interrogatories, which were excluded, were mere declarations, properly classed as hearsay, unless, perhaps, the first portion of the excluded part of the answer to the 7th interrogatory should be excepted. But if this last named 'portion was admissible, we cannot pronounce that the court erred in excluding it, unless it had been offered separately from the illegal evidence with which it is connected, and that was not done. — See the •cases collected in Shepherd’s Digest, 596, § 170. The part of the answer to the 5th interrogatory, which was excluded, did not state a conversation which was a part of the res gestee. It neither accompanied, nor is shown to have been so near the transaction as to constitute a part of it. It could only be a part of the res gestee upon the *485supposition, that everything said by the parties in reference to it afterwards on the same day must, of necessity, be a part of the transaction.
In the two cases of Olds v. Powell, 9 Ala. 861, and Gillespie v. Burleson, 28 Ala. 551, the question before the court was, whether a gift or loan of a slave was made by a father-in-law to his son-in-law. There was no question of fraud. In those cases, and. in reference to that question, it was decided, that antecedent declarations of the donor, made when the gift was under consideration and discussion by the donor, and made in reference to it, and in contemplation of it, and • explanatory of the donor’s intention, were admissible. This principle has no application, which can be perceived, to the question of the admissibility of the part of the answer (which was excluded) to the 4th cross-interrogatory. That answer was simply that the witness had heard the claimant and defendant in execution speak of a trade which was on hand for the transfer of the negroes in controversy, on the morning before they were transferred by the latter to the former. This evidence was clearly mere hearsay, and does not fall, as counsel suppose, within the principle above stated.
The judgment of the court below is affirmed.
StONE, J., having been of counsel, did not sit in this ease.