Defendant, admitting the correctness of the account upon which appellee sues as surviving partner of H. Z. Parker & Son, seeks to set off a demand for money deposited, for which the plea avers a receipt was given in the firm name. A copy of the receipt, which is alleged to be lost or mislaid, is set out in the plea. When this case was before the court at a former term, it appeared then, as it now does, that the deposit was made with S. D. Parker, the deceased member of the firm. It was ruled, that the defendant was incompetent to testify to the execution or contents of the receipt, on the ground that this would be to allow him to testify to a transaction with the deceased partner, which is within the exception of the statute forbidding either party to testify against the other as to any transaction with a deceased person, whose estate is interested in the result of the suit.' — Parker v. Edwards, 85 Ala. 246.
After the reversal and remandment of the case, defendant sought to avoid the influence of the former decision, by making and filing, with the plea of set-off, an affidavit of the loss and contents of the receipt, and that it had not been paid or otherwise discharged, as required by the statute in case of suit on a lost instrument. To prevent the affidavit from having the effect of presumptive evidence, dispensing with further proof, plaintiff, by replication verified by affidavit, denied the execution of the receipt. In such case, the statute *360declares, proof of its execution must be made. — Code, 1886, § 2597. Tbe verified replication operates to restore tbe case to tbe same position as if tbe statutory affidavit bad not been made, and to bring tbe competency of tbe defendant to testify to tbe execution and tbe contents of tbe receipt witbin tbe ruling on tbe former appeal.
It appears tbat defendant bad deposited witb S. D. Parker, at various times, different sums of money, aggregating several thousand dollars. He put tbe money so deposited in envelopes, wbicb were kept in bis private drawer in tbe safe. Some of tbe receipts bad been taken up and put in tbe same envelopes. By request of tbe plaintiff, for tbe purpose of making a settlement, defendant produced all tbe receipts in bis possession. After paying tbe amount called for by tbe receipts produced, there remained one hundred and ninety-five dollars in tbe envelope, into wbicb all tbe money and receipts were put after the death of S. D. Parker. Defendant offered to prove by tbe witnesses present at tbe settlement, tbat be then claimed this money, wbicb constitutes tbe subject of set-off, and stated tbat be bad lost or mislaid tbe receipt. Tbe court admitted tbe evidence as to bis claim of tbe money, but excluded tbe declaration as to tbe loss of tbe receipt. In this ruling there is no error of wbicb tbe defendant can complain. - Tbe statement was tantamount, under tbe circumstances, to a declaration of tbe execution of tbe receipt by S. D. Parker, and was offered for this purpose. Affirmation of its loss carried affirmation of its prior existence. To have permitted tbe defendant to have proved tbe statement for tbe purpose of establishing tbe receipt, would have been an evasion of tbe statute; for it would have allowed him to prove, by an unsworn declaration, a fact to wbicb be was incompetent to testify as a witness. Without disregarding tbe 'purpose and policy of tbe statute, a party can not be permitted to prove, by bis own declarations, a transaction witb a deceased partner, though in tbe bearing of tbe surviving partner, if tbe latter is not cognizant thereof, and is incapable to deny tbe statement, or explain tbe transaction.
The receipt given in the firm name to Carmichael, for one hundred dollars deposited November 19, 1885, and tbe testimony as to its payment, were, introduced for tbe purpose of rebutting any unfavorable inference, arising from tbe fact tbat there was money in tbe envelope in excess of tbe amount of tbe receipts produced by defendant. It certainly was not admissible for any other purpose. In view of tbe tendency *361o£ the evidence, that the deposits made by defendant were special, and kept separately, we are unable to perceive the prima facie relevancy of the receipt. The principal issue was, whether the money remaining in the envelope was deposited by defendant. That deposits were made by other persons, unless mingled and kept with the deposits of defendant, is merely speculative evidence, without proximate tendency to prove or disprove the principal issue, and affords no reasonable presumption or inference as to the material matter in dispute. As well would evidence of indebtedness to others tend to prove that plaintiff was not indebted to defendant. In any event, the payment to Carmichael, after the settlement, is res inter alios acta.
The first charge given at the request of plaintiff asserts a correct legal proposition. Unquestionably, if the money was not deposited with the firm, but with S. D. Parker individually, and as a special bailee, and was not mixed with the partnership funds, but kept separately in his possession as a special deposit, as the charge hypothetically states, it constituted only an individual liability, which can not be set off, in.an action by the surviving partner, against the demand due the partnership. Defendant should have presented his theory of the case, based on evidence tending to show that the deposits were made with the firm, by explanatory or independent instructions.
The second charge, however, is not free from criticism. While the evidence shows that the deposits were made with S. D. Parker, and kept in his private drawer, it also shows that he was the managing partner, that he signed the receipts in the firm name, and that similar deposits had been made at different times on various previous occasions. The charge withdrew from the consideration of the jury the effect of these circumstances, as tending to show the deposits were made with the firm, and with the knowledge or consent of the other partner.
Eeversed and remanded.