The objection to the evidence of the witness Morgan, in this case, was to the mass. Mary Blake’s statement to him of her intention to purchase a mule, and Ned Blake’s statement afterwards, referring to the mule in controversy, “that he had bought said mule for the plaintiff,” were each illegal evidence. They were simply hearsay, being unsworn statements, and coming within no rule which allows statements made accompanying an act to be proved as part of the res geske. There was no act or fact being submitted to the jury, of which they were explanatory. Hence, if the objection had been made to these parts of the evidence, it would have been well taken.
2. The witness, however, had testified that, before the purchase of the mule, “ lie had counted out for plaintiff sixty-five dollars in currency.” This was testimony tending to show she had that much money — tended to show her ability to purchase a mule; and inasmuch as her alleged ownership of the mule was one of the disputed questions in the trial, this part of the evidence was properly admitted. The objection being general, and part of the evidence being legal, the Circuit Court committed no reversible error in overruling the objection to it. — 1 Brick. Dig. 886, § 1186.
3. Declarations, made by a person in possession of personal property, explanatory of the possession, are admissible on the principle of res gestea. — 1 Brick. Dig. 943, § 558. _ We think the declaration of plaintiff, made to the witness Mitchell, when he took possession of the mule, “that it was her *385mule,” were admissible on this principle. — McLemore v. Pinkston, 31 Ala. 266.
4. It is very clear that the earnings'of the wife, unexplained, are the property of the husband; and if the husband be indebted, he can not give such earnings to the wife, to the prejudice of his existing creditors. Such gift, however, will be valid against subsequently contracted debts, unless it be tainted with fraudulent intent. — Pinkston v. McLemore, 31 Ala. 308; McLemore v. Nuckolls, 37 Ala. 662; 2 Brick. Dig. 73, § 66.
5. The charg enumbered 8 was rightly refused. It states, as one of its postulates, that Ned Blake, the husband, took the title of the mule “in his own name.” There is no evidence in the record that he so took the title. When a charge is refused in the court below,, the record must affirmatively show that there was some testimony in support of each hypothesis of fact contained in it; and, failing in any particular, we conclude the charge was refused because it was abstract. — 1 Brick. Big. 338, §§ 40-41.
6. Charges numbered 3 and. 5 fall within the same principle. There is nothing in the bill of exceptions which tends to show that either of the witnesses, in his testimony, was “willfully false.” If it be intended to assert that any willfully false statement, by a witness, though made out of court, raises the presumption invoked in the 3d charge asked, it fails to assert a correct legal proposition, and was rightly refused on that account. The record fails to inform us “that Mary Blake was aware of, or assented to the mortgage,” and the 5th charge was rightfully refused on that account. There is no evidence in the record that Mary Blake knew the mule had been mortgaged, or, that when “she participated in the benefits arising from the mortgage of the mule,” she was aware of the fact that the mule had been mortgaged to obtain them. For these reasons, charges 6 and 7 were rightfully refused.
7. Having possession of another’s property, by his or her permission, does not confer the power to sell or mortgage such property. The 9th charge asked was properly refused.
8. The present action is for the recovery of a chattel in specie, instituted before a justice of the peace. The justice gave judgment for plaintiff, and ascertained the value of the mule to be sixty-five dollars. The extent of a justice’s jurisdiction, in such actions as this, is fifty dollars. — B>ev. Code, § 841. The case'was tried on the merits before the justice, without plea to the jurisdiction. The defendant, by statutory ceHiorari, removed the case to the Circuit Court; and it was there tried on the plea of the general issue, and a ver*386diet and judgment rendered in .favor of plaintiff, fixing tbe value of the mule-at seventy dollars, with twenty dollars additional for the hire. The defendant thereupon moved in arrest of judgment, and to dismiss the cause, because the value of the mule in controversy exceeded the jurisdiction of the justice of the peace. The court granted the motion, but on terms which the defendant declined to accept.
Our decisions leave this question in much uncertainty. Cothran v. Weir, 3 Ala. 24, decides nothing material to our inquiry. Bentley v. Wright, 3 Ala. 607, declares that, “where a judgment is rendered by a justice of the peace, for a sum exceeding fifty dollars, which is removed by appeal to a higher tribunal, the appellate court should not, on motion, vacate the judgment, but the correct practice is to put the defendant to plead the want of jurisdiction in abatement.” Hart v. Turk, 15 Ala. 675, asserts the same doctrine. So, also, Rose v. Thompson, 17 Ala. 628; Vaughan v. Robinson, 20 Ala. 229; S. C., 22 Ala. 519; and Crabtree v. Cliatt, 22 Ala. 181. In the last case, the Circuit Court had sustained a demurrer to a plea in abatement, which asserted that the sum sued for before the justice exceeded fifty dollars; and this court reversed the decisiqn of the Circuit Court.
In the case of Pearce v. Pope, 42 Ala. 319, the defendant demurred to the complaint filed in the Circuit Court, and assigned, as cause of demurrer, “that the justice of the peace had no jurisdiction of the amount for which suit was brought, and of the amount for which judgment was rendered.” This court decided, that the demurrer was well taken, using the following language; “The want of jurisdiction in the justice appeared, both by the judgment, and on the face of the proceedings ; and it was not necessary that the appellee should have been put to his plea to the jurisdiction.” Crabtree v Cliatt, supra, is cited in support of this view. With all proper deference, we are at a loss to perceive how the “judgment,” and the “face of the proceedings” before the justice of the peace, were brought before the Circuit Court, on a demurrer to the complaint. That case must be overruled
Oases taken by appeal, or statutory certiorari, from justices’ judgments to the Circuit Court, are, under our system, tried de novo, and “ according to equity and justice, without regard to any defect in the summons, or other proceeding before the justice.” — Rev. Code, § 2772; 1 Brick. Big. 112, § 55. Cases thus carried to the Circuit Court, are there triable according to the jurisdiction of the latter court; not upon the rulings of the justice who first heard and determined the cause. They are not reversed or remanded. The Circuit Court, in such cases, renders the judgment. Whether *387such judgment of the Circuit Court is in harmony with that of the justice, is, as a general rule, only material in the matter of costs. On principle, it would seem, that a plea in the Circuit Court, denying jurisdiction in the justice, is, under our statutes, rather an anomaly. It is not trying the case according to justice and equity, without regard to de-r fects in the proceedings, as the statute commands.
There is a class of cases, where suits are brought in a justice’s court, without the county or precinct in which the defendant resides. In such cases, if defense on this ground be made before the justice, it should be entertained there, and, being so made, will be entertained in the Circuit Court, if carried there by appeal. On the other hand, if such defense be not made before the justice, but trial be had there on the merits, this is treated as a waiver; and such defense will not be entertained, if pleaded for the first time in the Circuit Court. — See McKinney v. Low, 1 Por. 129; Clough v. Johnson, 9 Ala. 425; Thompson v. Clopton, 31 Ala. 647; Gager v. Gordon, 29 Ala. 344. These cases, we think, are analogous to the present one in principle, and furnish a very safe rule for our guidance. By applying it to the class of cases to which the one in hand belongs, we produce harmony of decision; a result at all times desirable, and, in the present instance, eminently satisfactory to us on principle. We therefore hold, that, if there be no plea to the jurisdiction in the justice’s court, the question of want of jurisdiction in the justice, by reason of excess of value, or amount in controversy, can not be raised in the Circuit Court, when the case is carried to that court by appeal, or by statutory certiorari.
9. We have employed the term statutory certiorari. We do not doubt that, if a justice of the peace render judgment in a matter of which be has not jurisdiction, either by reason that the subject-matter, or the amount involved, is beyond the terms of the statutes defining his powers, such judgment may be .vacated and quashed by writ of certiorari at common law, issuing out of the Circuit Court. Such cases, however, are tried alone on the papers, or quasi records; and, of course, this remedy can not be invoked, unless the papers themselves show the want of jurisdiction.
In the present case, the motion to dismiss, even under the most favorable of our former decisions, came too late, and it should have been denied, absolutely.
The judgment of the Circuit Court must be affirmed.