^e«»i-vj»aii Vm Hfe im. IOTI Hi BcKil ! , , , |J 1 ' p 1 • ■ * r ' t ' if Iff iff p| tttft •' II George Washington Flowers Memorial Collection DUKE UNIVERSITY LIBRARY ESTABLISHED BY THE FAMILY OF COLONEL FLOWERS Negro Culture Printed and in Manuscript m* y * Number J ♦ / / > n i AHA* m W . SHEPHERD, VOLUIYIE u 5^313 i 3FFICBRS 0? THE SUPSEME COURT. DM " • rfi£SE ; • tus NS. Hon. A. .1. WALKER, Chim I i pice. Hon. G. W. STOKE, ) A , . > ASSOCIATE . / t : TTrp:* Ron. R. W. WALKER, I M. A. BALDWIN, Attorney G$nbkj i, rOHN D. PHSLAN, Clirk. WA'- : D. BHOWN, M/ mi . TA ES. Ar.ron (n slave) i 12 Ala. &Tenn. Riv 391 Ala. A Tenn. Rivers 3: !■ 43G Ander - Bl2 Atmistead v. Coi 5-12 124 "T 1 Baker, Fry it Co. v. Irrgersoll. . . 416 . of Montgomery v. i'k.u- nett's Adm'r 178. .311 v v. Bell v. The State 81 5 IS IBs Adm'r v. Smith Beene'B Adm'r v. Phillips, £10 Bell ats. Barker 375 Bell v. Bell's Adm'r 460 Ecu (.1 slave) v. The £tate 9 Bibb at--. Men ph g v. Whittle 2cs irant v. Si a .... 489 Betum v. : . Y 5114 Bo?kin & MeRae v. Dobionde & Co 602 510 Brooks v. Ruff Buck* 1 . : Bttidice v. 1 : o -e of A!a- B;ir:i- < I i 321 _7 622 ey v. The State Chadwick att Cheek v. 1 . 107 481 Adm'r G27 117 I v. Pitta 624 Collins' Adtrj 315 r v. Tr&wick's Adm'r 7. Baine Cos v. Railroad 335 Cox, Brainard & Co. v. Foacue. . 41i) ; 1 Ory lines v. White & Jobnsou. . . . 473 Gua'nin and Wife 327 Davi pbell Devaughn ats. Heath 60U Devaughu v. Heath Dohlcmde & Co. ats. Boykin & 502 enters ats. Jack I Douglass v. Montgomery & West Feint Railroad Co '• Dndle; ibarn 117 - ■. • • 607 !e Hill, in re Armistead. . . ■ t 9 ■3 TABLE OF CASES. Ex parte Maxwell 396 Ex parte McCants 715 Ex parte N. E. & S. W. Ala. Rail- road Co 608 Ex parte Northington 400 Ex parte Stringer • t'.65 Falkner ats. Wright 231 Flanagan ats. Patter.-on 427 Foscue ats. Qox, Brainard & Co.. 419 Fowler ats. Wood & Kimbrough, 292 Oarlington v. Jones 196 Grand Lodge of Alabama ats. Burdine 335 Greene v. McGhee 119 Greene ats. Ware 383 Greene's Executor v. Speer and Wife 450 KiDney v. The State 104 Lambert ats. Kannady 314 Lawrence v. Jones 637 Lawrence v. Ware 477 Lee e ats. Cheek 107 State ats. Harrison 64 State ats. Huttenstein 61 State ats. Isham (a slave) 93 State ats. Johnson 72 State ats. Kinney t 04 State v. Lee & Norton 102 State ats. Maull 68 State ats, McGuire f,o State ats. Merkle 4;-, JPrewitt ats. McColIum 498 ' 8ft ** 8 a<8 Mur Phy 48 Raglaad & Howell v. Wynn'b Adm'r • 270 Railroad Co. (Ala. 75 Seott v. The State 23 Sheiton ats. Hopkinson 305 Sibley's Heirs ats. Bondurant.. 489 Smith ats. Bedell's Adm'r 648 Smito ats. Jemison 140 Sait'i v. Johnson 66° Slate ats. Oliver 41 S'ate ats. Point 54 State ats. Schwartz 75 State ats. Scott (a slave) 23 State ats. Smith 84 State ats. Stein 29 State ats. Thompson 58 State ats. Ward 66 Steele «fe Bnrgess v. Townsend . . 201 Stein v. The State 20 Sterrett's Executor v. Kaster. ... 404 Stone & Best v. Wa'son 236 Strickland ate. Taylor 571 Strickland's Adm'r v. Walker. . . 512 Stringer, Ex parte 665 Stubbs v. Beene's Adm'r 555 Taylor v. Strickland 571 Thompson v. The State 58 Tillman v. Chadwick 332 Townsend ats. Steele & Burgess, 201 Trawick's Adm'r ats. Connor 253 Turner ats. Mitchell 688 Turnipseed and Wife ats. Manly's Adm'r 440 Union India-Rubber Company v. Mitchell 317 Walker ats. Cresswell's Executor, 184 Walker ats. Strickland's Adm'r. .612 Walthall ats. Wynn and Wife. .. 273 Ward v. Cameron's Adm'rs 622 Ward v. Neal 413 8 I v. The State 65 Ware v. Greene 3S3 Ware ats. Lawrence 471 Watson v. Colli] 515 Watson ats. Stone & Best Watt's AdtuV v. Wn'A' Webb v. Kelly . Boiling insoo v. Hunter Williama v. [vej r.'S "Willi TABLE OF CASES. WflHan set: ft Mc Arthur v. Woolf, 296 . (Sc -• Hill, itl re.) 637 Wilson v. Sawyer 559 Winter ats. Rom 234 v. Barker 311 Wood &'Ki .ler. 292 Vic Ar- thur 296 Falkner 231 id A Howell 27Q Wynne v. Wins man< Wynne and Wife v. Walthall. . . 272 E R R A T A . In Scott v. The'SI nit last line at hottoi In Ex parte Kelly, p.ig h line from bottom of page, for "and" read In Jamison v. Smith, | couil line , le & Bui':; 11EP0RTS CASES ARGUED AND DETERMINED |n (hf Supreme (louri of Jlabama. BEN" (a slave) vs. THE STATE. [indictment against slats roB murder or ANOTHER slave.] 1. Admissibility of character of deceased, ns evidence for prosecution. On a trial for murder, the prosecution cannot adduce evidence of the peaceable character of the deceased, when it has not been assailed hy the prisoner. 2. Dying declarations. — The dying declarations of the deceased, re- specting the state of feeling which existed between himself and the prisoner, are not competent evidence for the prosecution. From the Circuit Court of Baldwin. Tried before the Hon. C. "W. Rapier. The prisoner in this case, a slave, was indicted for the murder of another slave, and pleaded not guilty to the indictment. "On the trial," as the bill of exceptions states, "during the opening examination of the witnesses for the prosecution, the State proposed to prove the good character of the deceased, as a peaceable, well-behaved negro. The prisoner objected to this evidence ; but the court overruled the objection, and allowed the evidence ; and the State thereupon proved, that the deceased was a person of good character, was a member of the church, 10 SUPREME COURT Ben (a slave) v. The State. and was of peaceable character; to the admission of which evidence the prisoner excepted. The prisoner offered no evidence of the character of the deceased du- ring the trial, nor was any such evidence given in his behalf." "During the progress of the cause, and in the opening examination of the witnesses for the prosecution, and after several witnesses had been examined as to the facts oJ the homicide, the master of the deceased was -placed on the stand by the State as a witness, and testified, that he came to the deceased after he had received his death- wounds, and was satisfied that he would die, and told him so; that the deceased was conscious that he would die from his wounds, and so expressed himself, and directed his fellow-servauts what to do with the little effects he had; that this was early in the morning, and that the de- ceased died on the following evening, about night. The State then proposed to give in evidence the declarations of the deceased to his master, respecting the state of ieeling between himself and the prisoner. The prisoner objected to the introduction of this evidence ; but the court overruled the objection, and admitted the'evidence. Tttf> master thereupon testified, that the deceased said, ' he was knocked down, but did not know who did it; that some time before he had met the prisoner, (who was a runaway,) near the premises of his master, and told him that he had better go home, and that he would tell his master if he did not; to which the prisoner replied, that he intended to do so the next day.' To which ruling and admission of evidence the prisoner excepted." Smith & Chandler, for the prisoner. M. A. Baldwin, Attorney-General, contra. The opinion of the court was delivered, Feb. 16, '61, by A. J. WALKER, C. J.— It has been decided in this State, that the bad character of the deceased is compe- tent evidence for the accused, where the circumstances are such that they would be illustrated by such character. OF ALABAMA. ■ 11 Ben (a slave) v. The State, The reason upon which that decision rests, is, that the slayer must be reasonably presumed to act upon th< cumstances surrounding him, as they are colored by the bad character of the deceased; and that, therefore, it is but just to the accused that the jury should know that character. We do not think that this reasoning requires us to hold, that the State may go into evidence of the peaceable character of the deceased, when it is not as- sailed on the part of the accused. If the character of the deceased was that of a peaceable man, the circumstances ma)- safely be left to speak their own language : it is not requisite to their interpretation that the character should be known. The character of a witness for truth cannot be sup- ported, until it has been assailed ; and, on the other hand, the character ot one charged with a criminal offense, can not be assailed, except in reply to evidence of good cha- racter. These cases show that, in holding the bad cha- racter of the deceased admissible for the accused, and denying that good character is admissible for the State, we have analogies in the law to support us. We think it much safer not to extend the rule, in reference to the ad- missibility of the character of the deceased, so far as to permit the State to adduce primarily evidence of good character. The authorities, with the exception of Dukes v. State, (11 Ind. 557,) to the report of which we have no access, give the rule no greater extension, than to em- brace evidence of bad character adduced by the defend- ant ; and we think it safer to so limit the rule. — State v. Hicks, 27 Miss. 588; Monroe v. State, 5 Georgia, 137; State v. Tacket, 1 Hawks, 216 ; State v. Barfield, 8 Ire- dell's Law, 344; Wharton on Horn. 249; Franklin v. State, 29 Ala. 14 ; 3 Grecnleaf on Ev. 27. [2.] The court erred, in permitting the State to give in evidence the dying declaration of the deceased, as to the state of feeling existing between himself and the prisoner. We decided in Mose v. State, (35 Ala. 421,) that the ad- missibility of dying declarations was restricted to state- ments ll as to the circumstances immediately attending 12 SUPREME COURT Aaron (a slave) v. The State. the act, and forming a part of the res gestcc." That de- cision is conclusive of the question now presented. Judgment reversed, and cause remanded. The prisoner must remain in custody, until discharged by due course of law. AAROtf (a slave) vs. THE STATE. [indictment against slave for murder of white person] 1. Competency of juror. — A mere occupant and tenant, tinder a yearly letting, of a room used by him as a sleeping apartment, is not a freeholder, within the meaning of the statute (Code, \ 3583) speci- fying the grounds of challenge to jurors in criminal cases. 2. Admissibility of confessions. — The constable who had the custody of the prisoner, a slave, having paid to him, "If you did it, you had better confess: it would be best for you to tell the truth ; truth is always the best policy ; but, if you did not kill him, we don't want yoU'to say so," — held, that there was nothing in these facts to show that the prisoner's confessions, subsequently made to the constable in the same conversation, were elicited through the influence of either hope or fear; and that the confessions were admissible evi- e. t ion <>f grand jury ; sufficiency of certified transcript on change rcnue. — Where the regular term of the circuit court corn- iced on the second Monday after the fourth Monday in October, h was the eighth day of November; and the indictment, as ied into the certified transcript on change of venue, purported to have been returned into court on the ninth day of November ; le the transcript stated, in its caption, that the grand jury was organized at a term of the court begun and held on the second Monday after the fourth Monday in November, which was the sixth of December, — held, that the transcript did not show that the grand jury was organized at the regular term of the court; but, if a wrong date \yas inserted in the transcript by a clerical misprision, (there being a reversal of the judgment on other grounds.) the take may be corrected before another trial. 4. Variance ra> name of deceased.'— Where the indictment alleged the i • of the deceased to be Louis Bondet, or Boredef, while his real nrrae was proved to be Louis Burdet, and to be sometimes pro- OF ALABAMA 18 Aaron (a slave) v. The State. nounced as if spelt Bowed et ; and the circuit court thereupon charged the jury, " thit if his real name was the same in sound a> if written Boudet or Boredct, or so nearly the same that the diffe] would be but slight, or scarcely perceptible, and he would have readily known by his name being pronounced as if written / or Boredet, then the variance would not avail the defendant,' — held, that the ruling of the court was substantially correct. FroiM the Circuit Court of Mobile, on change of venue from Baldwin. Tried before the Hon. C. \V. Rapier. The prisoner was indicted, jointly with another slave, in the circuit court of Baldwin, for the murder of one Louis Boudet, (or Boredet, as the court decided, on in- spection, it might be,) a white man. The venue having been •changed to Mobile, the prisoner was there tried alone, at the December term, 1860. During the organi- zation of the jury, as is shown by the bill of exceptions, A. R. Drish, one of the regular panel of jurors, being examined touching his qualifications as a juror, "'state I, that he was not a freeholder; but that he rented a room by the year, aud occupied it as a lodging-room ; and that he exercised the exclusive control , of said room, and had occupied it thus for more than a year." The prisoner challenged this juror, on the ground that he was neither a freeholder nor a householder ; the court overruled the objection, and the prisoner excepted. An exception was also reserved to the ruling of the court in admitting one Hannibal Choate as a competent juror, on a similar state of facts; and several -other exceptions, which require no particular notice, were reserved during the organization of the jury. When the State offered to read to the jury the copy of the indictment contained in the certified transcript, "the prisoner objected to being put upon his trial on said copy-indictment, and objected to the same being read to the jury as a sufficient indictment, and objected to the introduction of said transcript; because said transcript showed that the court commenced its session at a time 14 SUPREME COURT Aaron (a slave) v. The State. npt appointed for a regular term; and because it con- tained no caption showing the organization of a grand jury at the regular term of said court; and because it did not appear that said indictment was found at a regular term of 6aid court; and because it appeared that said indictment was filed in court before the organization of the grand jury." The transcript states, in its' caption, that the proceedings were had "at a term of the circuit court, begun and held in and for the county of Baldwin, at Hie court-house thereof, on the second Monday after the [fourth Monday of November, 1858;" and then sets out the organization of the grand jury. The next minute- entry, which is headed. "Tuesday, November 9, 1858," recites that the grand jury return into court, and file sundry bills ot indictment; and Ihen follows the indict- ment against the prisoner, which is entitled 'Fall term, 1858j' and endorsed by the clerk, 'Filed in open court, 9th November, 1858, " ; The court overruled the several objections to the indictment and transcript, and the pris- oner excepted. The deceased was killed on the 20th or 21st April, 1858. The prisoner was at that time a runaway, and did not return home for several days afterwards. When he returned, (suspicion having been aroused in the meantime against him and another slave, Ranty by name,) he was seized and tied by his overseer, and delivered up to a magistrate, by whom he was examined touching the murder of the deceased ; but on that examination he de- nied all participation in the killing. Tie was left, during the night, in the custody of one Nelson, who was acting ,.s constable, and who kept him bound with handcuffs and a chain. On the next morning, while Nelson, ac- companied by several other persons, was carrying him to the place appointed by the magistrate for the further in- vestigation, and while he and Nelson were twenty or thirty yards in advance of the rest of the party, he made a confession of his guilt; and immediately afterwards, while the whole party were going down the river in a boat, repeated the confession in the presence of the other OF ALABAMA. 15 Aaron (a slave) v. The ms. One of the handcuffs had swollen his wrist, and Nelson took it oft; but it does not appear whether this was before or after the first confession. The State first introduced one Eslava aa a witness, who was one of the party with the constable on that occasion, and who testified that, " on the morning of the next day after Aaron's first examination, while going down the river in a boat, with him and several other persons, Aaron made a statement to him, about the killing of the deceased, implicating himself; and that this statement was made in reply to a question by him, 'how he came to tell about the matter,' alluding to his confession, just before, to Nelson. The solicitor asked the witness, whether he held out any in- ducement to the prisoner to confess, or used any threats, force, or undue influence ; and the witness said, that he had not. The solicitor then asked the witness to state what the prisoner said to him ; but the prisoner, by his counsel, objected to this, because it did not appear that, at the time this confession was made, the influence of the oath and charge given to him had been removed. The court overruled the objection, and the prisoner excepted." The prisoner then introduced Nelson, as a witness, who testified to the court, in reference to the confession made to him, as follows: "While he and Aaron were about twenty-five or thirty yards in advance of the others, and were in conversation about the matter of the homicide, witness said to Aaron in substance, as well as he could recollect, 'If you did It,' you had better confess: it is best to tell the truth ; but, if you did not do it, we don't want you to say so.' On re-examination touching this conversation, the witness stated that he said to the pris- oner, 'If you killed him, you had better confess; it would be best for you to tell the truth : truth is always the best policy. But, if you did not kill him, we don't want you to .say so; if you did, it is best for you to confess and acknowledge it.' When witness made these statements to Aaron in said conversation, Aaron walked on a little way, saying nothing, and apparently reflecting, and then made the confession. No one else was then present, but 16 SUPREME COURT Aaron (a slave) v. The State. the others soon came up." The prisoner then introduced as witnesses, before the court, the agent of his owner, who had the control and management of him, and his over- seer ; who testified to the facts above stated, in reference to his being a runaway at the time the homicide was committed, his return home, his arrest by the overseer, and his delivery to the magistrate. On these facts, the court admitted as evidence to the jury, against the pris- oner's objections, the confession to Eslava, and the prior confession to Nelson : to which decisions the prisoner re- served exceptions. The State then adduced evidence corroborating the confessions in seVeral particulars. In reference to the name of the deceased, the testimony was as follows : Eslava testified, "that the deceased was a Swiss, and was named Louis Burdet ; that he spoke French, and pronounced his name according to the French pronunciation ; [that he (witness) had seen the deceased write his name, and pronounced it as the de- ceased did." Joseph Nelson testified, "thathe knew the deceased, who was generall}' called Louis Burdet, pro- nouncing the surname as in Engjish." Mr. "Weeks tes- tified, "that he knew the deceased, and that his name was Louis Burdet, giving the French pronunciation." Joseph Hall testified, "that he knew the deceased, who was generally called by his christian name, Louis ; that he had several times heard his name called oui at the polls where he voted, and that it was then pronounced, to the best of his recollection, as if written Bouredet ac- cording to English orthography ; that he did not know what was the correct pronunciation of his name, because he was generally called ' Old Louis.' " The court deci- ded, on inspection, aided by the testimony of several experts, that the name, as written in the indictment, might be either Boudet, or Boredei, and might be pro- nounced as if spelt Boodet, or Bowdtt ; and instructed the jury, "that if the real name of the deceased was the same in sound as if written Boudet or Boredet, or sonearly the same that the difference would be but slight, or scarcely perceptible, and he would have been readily OF ALABAMA. . 17 Aaron (a slave) v. The State. known by his name being pronounced as if written Bou- det or Boredtt, — then the variance would not avail the de- fendant for hi3 acquittal ; " to which charge the prisoner excepted. James Bond, and L. S. Lude, for the prisoner. — 1. Drish and Choate were not competent jurors, being neither freeholders nor householders.— Code, §§ 3436, 3583. The object of the statute, in requiring householders and free- holders as jurors, is recited to be the securing of " honest}', impartiality, and intelligence;" and its purpose will inevitably fail, at least in the cities and large towns, if the mere renting of a room be held sufficient to constitute a householder. Where rooms are rented by gamblers and other disreputable characters, such renting gives not the slightest assurance ot honesty or intelligence. To eftejjfcuate the object of the statute, the term householder 'should be construed to mean, one who holds, or has pos- session of a house — who has some stake in the commu- nity, and whose reputation mayjbe known. If the prisoner was tried by jurors who had not the requisite qualifica- tions, the jud^nent will be reversed. — 1 Porter, 298; 2 Mason, 91 ; 1 Johns. 315; 8 Johns. 347; 8 Ala. 302 ; 4 Barn. & Aid. 472 ; 3 Iredell, 532. 2. The certified transcript, on which the prisoner was tried, was fatally defective. The regular fall term, 1858, of the circuit court ol Baldwin, commenced on the 8th day of November, as this court must judicially know; yet the transcript states, that the grand jury was organ- ized on the 2d Monday after 4th Monday in November. If this statement is true, the indictment was not found by that grand jury, or the grand jury itself was organ- ized at an unauthorized time. 3. The prisoner's confessions ought not to have been admitted as evidence against him. The circumstances under which those confessions were made, as detailed in the bill of exceptions, show that they were extorted from him by the two-fold influence of hope and fear. The p risoner is a slave, ignorant of the law, ^ind accustomed SUPREME COURT Aaron (a slave) v. The State. to implicit obedience. The confessions were made to a white man, an officer of the law, in whose custody he was, and in response to a question by that officer; and at a time, too, when he was bound in irons, and in the midst of an excited party of white men who were investigating the facts of the homicide. If he had failed to answer the question, his silence would have been considered dis- respectful ; and if he had given the same answer as on his former examination, it would not have been accepted as satisfactory. The officer did not caution him that what lie said would be used as evidence against him, nor can he be presumed to know that fact. The remarks of the officer, in reply to which the first confession was made, could only be construed by him as a threat, if he did not confess, or a promise that he could thereby better his condition. His former denial was not satisfactory to the party, and he mast have seen that nothing short of a confession of his guilt would satisfy them. If these facts are not sufficient to show, affirmatively, that the confes- sions were not voluntary, they at least raise grave doubts of their entire freedom. — State v. Long, 1 Hayvv. 455 ; Wharton's Amer. Crim. Law, 252 ; 1 G-rdenl.fEv. § 225, and notes; 32 Ala. 566; 26 Ala. 107; 25 Ala. 1. An additional ground of objection, which is, of itself, suffi- cient to exclude the confessions, is the fact that the pris. oner had been previously sworn and examined during the investigation, and was then charged by the magistrate, 'as. the statute directs, (Code, §§ 8318, 3315,) concerning the consequences and punishment of false swearing; and it was not shown that, at the time the confessions were made, the influence and effect of this oath and charge had been removed from his mind: on the contrary, the confession itself shows that .they still dwelt upon his mind. Confessions have been repeatedly excluded, be- cause the prisoner had been examined upon oath. — 1 Greenl. Ev. § 225; Bull. N. P. 242; 4 Hawk. PC. ch. 46, § 37 ; 4 C. &, P. 564 ; 6 ib. 161, 179; 1 Moody & Rob. 297; 1 Moody, 203 ; 1 Parker's Crim. R. 406-23; 4 Dallas, 116; 1 Phil. Ev. 113, note 207, 2d vol. ; Roscoe, 48-50. OF ALABAMA. 19 Aaron (a slave) v. The State. 4. The charge of the court to the jury, on the question of variance, was erroneous. The rule of law as to idem sonans cannot apply to names so dissimilar in sound as JBurdet and Boudet, or Borcdct. — Rex v. Tannet, Rubs. & R. 351 £10 East, 83; 5 Taunton, 14 ; Roscoe, 106. Idem sorums is a question of law, and the court erred in i ring its decision to the jury. M. A. Baldwin, Attorney-General, contva. — 1, Drish and Choate were householders, within the spirit and in- tention of the statute. 2. The objection taken to the certified transcript, is but a clerical misprision, which was amendable by the other parts of the record. 3. The prisoner's confessions appear to have been made voluntarily, and were abundantly corroborated. That they were admissible, see Hawkins v. State, 7 Missouri, 190; Roscoe's Crim. Ev. 42. 4. There wa3 no variance in the name of the deceased. 17 Ala. 179. The opinion of the court was delivered, Feb. 13, '61, by STONE, J. — The jurors Drish and Choate were mere tenants and occupants, by yearly letting, of rooms used as sleeping apartments. The section of the Code, which defines the qualifications of jurors, declares that it is a good ground of challenge for either party, "that the juror has not been a resident householder or freeholder of the county, for one year preceding the time he is sworn." — §3583. The term "householder" is defined by Mr. Webster to mean, "the master or chief of a family; one who keeps house with his family." "Household: those who dwell under the same roof, and compose a family." In the case of Brown v. Witt, (19 Wend. 475,) Bronson, J., said, "The word householder, in this statute, means the bead, master, or person who has the charge of, and pro- vides for a family." "A person having and providing for a household, is a householder." — Griffin v. Sutherland, 14 Barb. Sup. Ct. 156. See, also, Rex v. Inhabitants of 20 SUPREME COURT Aaron (a slave) v. The State. Rufford, 8 Mod. 40; Slade's bail, 1 Chitty, 502 ; Rex v. Poynder, 1 B. & Cress. 178; 3 PetersdorfTs Abr. 103. Householder, in our statute, means something more than the mere occupant of a room or house. It implies in its terms the idea of a domestic, establishment — of the man- agement of a household. — Sallee v. "Waters, 17 Ala. 482 ; Boykin v. Edwards, 21 Ala. 261: 2 Mart. La. 313; Burrill's Law Dictionary, " Household." Under this rule, Messrs. Drish and Choate were not competent jurors; and for the error in putting them upon the pris- oner, this case must be reversed. The questions as to the other two jurors will probably not arise again in their present form. [2.] Much has been written on the question, what de- gree of influence will exclude the evidence of confessions in criminal cases? The authorities agree, that, before any confession can be received in evidence in a criminal case, it must be shown that it was voluntary. " A free and voluntary confession is deserving of the highest credit, because it is presumed to flow' from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers ; but a confession forced from the mind, by the flattery of hope, or by the torture of fear, comes fn so questionable a shape, when it is to be considered as the evidence of guilt, that no credit ought to be given to it; and therefore it is rejected." — 1 Green], Ev. §219; Mose v. The State, 33 Ala. 211 ; Roscoe's Cr. Ev. 39 ; Wyatt v. The State, 26 Ala. 9 ; Brister v. The State, 26 Ala. 107, L28 ; Seaborn v. The State, 20 Ala. 15 ; Reg. v. Waring- ham, 2 Lead. Cr. Cas. 167 ; 2 Russ. on Crimes, 827. See, also, 2 Lead. Cr. Cases, 190, 191, and 198, et. seq, In some cases, we think the rule which excludes con- fessions, as being procured by hopes held out, or fears excited, has been carried to the verge of propriety, if not beyond it. In Reg. v. Drew, (8 C. & P.,) the language used was, "Do not say anything to prejudice yourself, as what you say I will take down, and it will be used for or against } 7 ou at the trial." We confess we cannot perceive on what principle this confession was excluded. So, in the OF ALABAMA. __21 Aaron (a slave) v. The State. case of Reg. v. Morton, (2 Mood. & Rob. 511,) where the language was, " Whatyou are charged with is a very heavy often se, and you must be very careful in making any statement to me or any body else, that may tend to injure you; but any thing you can say in your defense, we shall be ready to hear, or send to assist you," In each of these cases, 'he decision was pronounced by Coleridge, J. In the ease of Rex v. Upchurch, (1 Moody, 465,) n hope was held out to the prisoner, that a confession would perhaps save her neck ; and we think the ten judges — Lord Denman, Ch. J. Tindal, Loid Abinger, Ch. B. Park, and others— rightly ruled her confessions inadmissible. Although we fully approve the sentiment expressed by this court in the case of Wyatt, supra, that, " in consid- ering questions of the kind before us, we must bear in mind " the dependent relation of the slave — the absolute dominion under which he lives," (see, also, Clarissa's case, 11 Ala. 60,) — yet, we agree with Parke, B., "that cases on this subject have gone quite far enough, and ought not to be extended." — Reg. v. Moore, 12 Eng. Law and Eq. 586. In Seabom's case, the confession was made to the committing magistrate, after he had told the pris- oner, (a slave and in custody,) that it was a bad business, or bad situation he was in. — 20 Ala. 15. The confession was held admissible. See, also, Reg. v. Baldry, 2 Lead. Cr. Cases, 164; Hawkins v. The State, 7 Missouri, 190. The substance of what the .bailiff said to the prisoner in this case was, that truth was the best policy: that if he did the act, it was best to confess it; but, if he did not do the act, then there was no wish he should say so. Now, if there be in this language any inducement offered to the prisoner to obtain a confession, that inducement was placed on the express condition that he, the prisoner, was guilty. Hence, to suppose that the prisoner was in- fluenced by the declaration to make the confession, is to concede his guilt ; for, in ' no other contingency, was he advised to confess. The prisoner, if innocent, was warned not to say he had done the deed, in language equally as strong as that which sought his confession if guilty. 22 SUPREME COURT Aaron (a slave) v. The State. Truth was asked for; and 'we canuot perceive that any hope or fear was offered to the prisoner, to induce him to make a false confession of guilt. The circuit court did not err in receiving evidence of the confessions. [3.] The transcript from the circuit court of Baldwin county presents the following state of facts : The regular term of the circuit court of that county sat on the second Monday after the fourth Monday in October, and com- menced its session on the 8th day of .November, 1858 The indictment, on which the prisoner was tried, appears to have been returned into court on the 9th day of November, 1858. The transcript from 'Baldwin states, that a grand jury, composed of certain named persons, was organized in a Baldwin circuit court, on the 2d Monday after the 4th Monday in November, 1858, which was the sixth day of December. The transcript from Baldwin circuit court fails to show the organization of the grand jury at the fall term, 1858, unless there is a mistake in the date found in the record. We suppose the date is incorrectly stated ; but, as the record before us fails to show the organization of the grand jury by whom the bill was found, and as we suppose this to be a clerical error, which can be corrected, we will do no more than call the attention of the' circuit court and the parties to it, that before another trial the transcript may be put in proper form. [4.] The ruling of the court in reference to the name of the deceased is substantially correct. We understand the circuit court to have said, in substance, that if the variance in the name be so slight as scarcely to be per- ceptible, and the deceased would have been readily known by the name thus called, then such variance was imma- terial. In the case of Ahitbol v. Beniditto, the court ruled, that Benedetto was idem sonans with Beniditto. — 2 Taunton, 401. See, also, Ward v. The State, 28 Ala. 60 ; Doe. tx dem. v. Miller, 1 B & Aid. 699. Judgment of the circuit court reversed, and cause re- manded. Let the prisoner remain in custody, until dis- charged by due course of law. OF ALABAMA. 23 Scott v. The State. SCOTT vs. THE STATE. [indictment against slave for homicide of white person.] 1. Sufficiency of clerk's certificate to transcript, on change of venue. — On change of venAe in a criminal case, if the clerk's certificate, ap ponded to the transcript, states that it " contains a true and com- plete transcript of the caption of the grand jury, and a copy of the indictment, with the endorsements thereon, together with the recognizances of the witnesses, and all the orders and judgments had in the case, all of which is as full and complete as the same appears of record," — this is a substantial compliance with the re- quirements of the statute, (Code, \ 3f>13.) i'ice of copy of indictment on prisoner. — If a copy of the indict- ment, as originally found by the grand jury, is served upon the prisoner while in confinement, (Code, §'3570,) the validity of the service is not affected by the fact that a nolle-proscqm bad been entered as to one of the counts. 3. Jpharge to jury as to construction and eject of other charges. — Where the court, after having charged the jury orally, gave several charges in writing at the request of the defendant, and then added, " that the jury would receive the written charges, in connection with the charges and law as given and expounded orally from the bench, as the law of the case," — held, that this was not erroneous. ■i. Homicide of white person by slave ; charge to jury, as to constituents oj 'offense. — On the trial of a slave, under an indictment for the mur- der or voluntary manslaughter of a white person, a charge to the jury, asserting that, " if they believed the defendant struck tho deceased with no expectation or intention to kill him, and the stroke did kill him, the death was accidental, and the defendant should be acquitted," — is erroneous, since it assumes that the de- fendant wonld be entitled to an acquittal, although the blow was given with the intention to do great bodily harm. 5. Sufficiency of verdict. — Under an indictment against a slave, charg- ing him, in separate counts, with the murder and voluntary man- slaughter of a white person, a general verdict of guilty is sufficient to authorize a judgment and sentei ce of deuth. From the Circuit Court of Dallas, on change of venue from Wilcox. Tried before the lion. Portkr King. The indictment in this case was found by the grand 24 SUPREME COURT Scott v. The State. jury of Wilcox county, and originally contained three counts: the first charging the prisoner, who w%s a slave, with the murder of James Wilkinson, a white person, by striking him with a stick or piece of wood ; the second charging that the killing was done " unlawfully, but without malice " ; and the third, that it was done "un- lawfully, but without malice, or the intention to kill." A nolle^rosequi was entered as to the third count, and the venue was afterwards changed, on the application of the prisoner, to Dallas county. On the trial, as the bill of exceptions states, "the prisoner objected to being tried on the transcript of the record from the circuit court of Wilcox, because of the insufficiency of the clerk's certifi- cate to the said transcript; which objection the court overruled, and the prisoner excepted." The certificate is in the following words : "State of Alabama, "» I, C. C. Sellers, clerk of the Wilcox county. (circuit court of Wilcox county, State of Alabama, do hereby certify, that the foregoing pages, numbered from one to four, w contain a true and complete transcript of the caption of the grand jury, and a copy of the indictment, with the endorsements thereon, m together with the recognizance of the witnesses, and all tke orders and judgments had in the case of the State against Scott, a slave, together with a bill of the costs; all of which is as full and complete as the same appears of record or on file in my office Given under my hand and seal of office," &c. The prisoner then objected to being tried, " because the paper which had been served upon him, while he was confined in jail, as a copy of the indictment, was not a correct copy of the same ; and produced to the court the paper which had been so served on him," which was a correct copy of the original indictment, including the count as to which a nolle-prosequi had been entered before the change of venue. The court overruled the objection, and the prisoner excepted. The circumstances connected with tlie killing, as proved OF ALABAMA. 25 Scott v. The Stare. on the trial, were substantially these: On the eight of the 19th January, 1860, the prisoner was caught by a pa- trolling party, of whom the deceased was one, in the town of Camden, about a half-mile from his master's house, without a pass; and the deceased, under the direc- tion of the captain of the patrol, inflicted on him a light whipping. On the next morning, while the deceased, in company with two other white persons, was going through the suburbs of the town, he passed the prisoner, who immediately accosted him in a rude and insolent manner, and followed the party into the town, talking in a loud and insolent tone to the deceased. " The dec told him to go away and let him alone, and threw a chip at him, but did not hit him. The defendant continued to talk angrily to the deceased, saying, ' I don't see what business school-boys have to patrol, any Way ;' and the deceased threw at him a piece of a wagon-fell three inches long, and then a piece of a buggy-shaft, with a [part] of the cross-bar attached, but did him. One Ratcliife, who was at work in his carriage-shop a3 they passed, and who was attracted to the door of his shop by the loud and angry talking, threw or 1. the deceased a buggy-whip, of medium size, and told him to take it and whip the defendant. The defendant seized upon the piece of buggy-shaft which the deceased had thrown at him, and he and the deceased mutually started towards each other, (being then some twelve or fifteen steps apart,) and met about half-way; an & the deceased then struck the defendant around the body with the whip, and the defendant struck him on the left forehead with the buggy-shaft." From the effects of this blow the de- ceased died, on the second day afterwards. "After the court had charged the jury orally, the de- fendant asked the court to give six charges in writing, which charges the court also gave, and then stated to the jury, that they would receive the written charges, in con- nection with the charges and law as given aud expounded orally from the bench, as the law of the case ; to which fendant sold liquors at his bar, had a regular license from 26 SUPREME COURT Scott v. The State. statement, so made by the court, the defendant ex- cepted." " The defendant asked the court, in writing, to charge the jury, 'that if they believed the defendant struck the deceased with no expectation or intention to kill him, and the stroke did kill him, the death was accidental, and the defendant should be acquitted ; ■ which charge the court refused to give, and the defendant excepted." The jury returned a verdict of "guilty of murder, in manner and form as charged in the indictment;" and the court thereupon pronounced sentence of death upon the prisoner. George W. Gatle, for the prisoner. — 1. The certificate of the clerk, appended to the transcript, does not state that it contains "the order for the removal of the trial," nor that it contains "all the entries relating" to the in- dictment.— Code, § 3613 ; Brister's case, 26 Ala. 126. 2. The paper served on the prisoner was not a copy of the indictment on which he was to be tried, since it con- tained the count as to which a nolle-prosequi had been entered. The unauthorized addition of a count makes as material a difference us would the omission of a count. In the one case, a conviction might be had upon a count which the prisoner had never seen ; and in the other, upon a count which was void. If the paper served on the prisoner be held a copy of the indictment on which he was tried, then it must follow that he was tried, and probably convicted, on the third count ; indeed, there is nothing in the record to repel this conclusion. 3. The court erred in the statement voluntarily made to the jury after giving the charges asked by the prisoner. If the charges asked were correct, it was the duty of the court to give them in the language in which they were asked. — Code, § 2355. If they were incorrect, or in con- flict with the oral charge, they ought not to have been given. The statement of the court could only be under- stood by the jury as an intimation that they must be governed by the oral charge, and that the other charges OF ALABAMA. Scott v. The State. were given merely to save an exceptiou. — Spivey v. The State, 26 Ala. 90. 4. The charge asked and refuted, ought to have been given. It was obviously intended to withdraw from the jury the consideration of the third count. Moreover, it asserts a correct legal proposition. No one but the mas- ter has a right to punish or strike a slave. Words do not justify an assault. The deceased unlawfully assaulted the prisoner, and the latter had the right to resist and protect himself. If the stroke was given without any "expecta- tion or intention to kill," the defendant could not be convicted of murder, voluntary manslaughter, or invol- untary manslaughter in the commissien of an unlawful act. 5. The general verdict was erroneous, and did not authorize the sentence pronounced. The two counts in the indictment charge different offenses, or, at least, one offense with essential difference?. The offense is alleged to have been committed "with malice," and yet "with- out malice;" and the verdict finds this impossibility to be true. The finding is contradictory, confused, false, and uncertain. — State v. Givens, 5 Ala. 760 ; State v. Coch- ran, 30 Ala. 542 ; 6 Ohio, 400 ; 4 Gill, 4'JO. M. A. Baldwin, Attorney-General, contra. — 1. The clerk's certificate is a substantial compliance with the statute. 2. The copy of the indictment, served on the prisoner, was an exact copy of the original ; and he could not possibly have been ifijured by the insertion of the third count. 3. The oral charge of the court, not being set out in the bill of exceptions, must be presumed to have been consistent with the written charges which were given ; and it was the duty of the jury, without any express instruction from the court, to consider tfiem together "as the law of the case." Moreover, it is the right and duty of the court to give explanatory charges. — Morris v. State, 25 Ala. 57. 25 SUPREME COURT Scott v. The State. 4. The charge refused wa* manifestly erroneous, in assuming that, if the blow was given with the intention to do great bodily harm, the defendant was entitled to an acquittal. The opinion of the court was delivered, Feb. 28, 'CI, by R. W. WALKER, J.— The certificate of the clerk, at- tached to the transcript from the circuit court of Wilcox county, was a substantial compliance with the require- ments of section 3613 of the Code ; and, as the only objection made to the transcript, was because of the in- sufficiency of the certificate, the court did not err in over- ruling it. [•2.] The copy of the indictment served on the de- fendant, was a copy of the indictment as found by the grand jury; and that, we think, was sufficient, although the solicitor had entered a iwlle-prosequi as to one of the counts. [3.] If. after the court has charged the jury orally, ad- ditional charges are given in writing at the request of either party, it is^certainly true that the jury are to con- sider the written, in connection with the oral charges, as constituting the law of the case. This was all that the court said to the jury in the present case, and we do not see how the remark could have prejudiced the defendrtut. [4. j The last charge asked, was properly refused. If the blow was given with the intention not to kill, but to do great bodily harm, and death ensued, it by no means follows, that the defendant was entitled to an acquittal, Yet the charge asked by the defendipt, declares that, in aae supposed, it would be the 'duty of the jury to acquit. [5.] Under our code, murder, when committed by a slave, and the voluntary manslaughter of a white person -lave, are subjected to the same punishment. — Code, § 8312. The first and second counts of the indictment in this case, allege the killing of the same person, and obvi- ously refer to the same act, charging it in different ways, so as to meet the different aspects in which it might be ■ OF ALABAMA. Stein v. The S presented by the evidence. It is very clear that, where both counts of the indictment refer to a single trai and the punishment, prescribed is the same in th case as the other, a general verdict of guilty is not im- proper. — 1 Archb. Crim. PL 175-0 ; Hudson v. State, lBlackf. 319; U. States v. Pirates, 5 Wheat. 184; Mays v. State, 30 Ala. 323. Judgment affirmed. •STEIN vs. THE STATE. : MENT AGAINST LESSEE OF CITV WATEK-WOKKS.] 1. When indictment lies for breach of duty imposed by co)Uraei, a sufficiency. — An indictment lies against the lessee of the city water works of Mobile, for a breach of tbe public duty imposed on hini by his contract with the corporate authorities, in failing to furnish the city with a supply of water ; but, since his contract only binds him to supply water to the city from Three-mile creek, and con- tains no stipulation as to the quality of the water to be supplied, an indictment which simply charges, in effect, that the water sup- plied by him was- not goo i and wholesome, shows no breach of duty resulting from the contract. " 2. When indictment lies for nuisance, and its sufficiency. — Selling and furnishing unwholesome and poisonous water to an entire commu- nity, is a nuisance, for wiiich an indictment will lie; but, if the indictment does not allege that the defendant, his agents oi vants, poisoned the water, or imparted to it its unwholesome quality, it must aver his knowledge of its unwholesome or i ous quality. 3. Relevancy of evidence to prove nuisance.. — Under an indictment for anuisance, in selling and furnishing unwholesome and poisonous water to an entire community, the prosecution may adduce evi- dence, showing the deleterious effects of the water on particular persons, members of the community, not named in the indictment. 4. Admissibility of slave's declarations. — The declarations of a slave, complaining of sickness, and detailing his symptoms, are comne- 30^ SU PREME CO URT Stein v. The State. tent evidence on the principle of res gestct, as well as from the ne- cessity of the case, though made to a person who is not a physician. From the Circuit Court of Baldwin. Tried before the Hon. 0. W. Rapiir. This case originated in Mobile county, and was re- moved to Baldwin county on the application of the de- fendant. The fifth count of the indictment, on which alone the trial was had, was in these words : " The grand jury of said county further charge, that, before the find- ing of thi« indictment, an agreement was entered into, on the 26th December, 1840, between the mayor, alder- men, and common council of the city of Mobile, of the first part, and the said Albert Stein, of the second part ; which agreement was in tenor as follows," — setting out the agreement, hereinafter more particularly referred to, by which Stein leased the city water-works of Mobile ; "which agreement was duly executed, on the day the same bears date, by the said party of the first part and the said party of the second part, and was confirmed by an act of the legislature of the State of Alabama, approved January 7, 1841, in tenor as follows," — setting out the act, en- titled "An act for the promotion of the health and con- venience of the cit}' of Mobile, by the introduction of a supply of wholesome water into said city, to be used for domestic purposes and the extinguishment of fires," which may be found in the Session Acts of 1840-41, on pages 53, 54. "And the grand jury further find, that the said Stein, for certain valuable considerations ex- pressed in said agreement, promised and agreed, among other things, to supply the said city of Mobile and the inhabitants thereof with good and wholesome water, which promise and agreement was confirmed by the said act of the legislature, approved January 7, 1841, herein- before set out. And the grand jury further find, that the said Stein, in pursuance of the said agreement and said confirmatory act, accepted the right and franchise therein conveyed and granted, and, under said agreement and act, has, for a number of years, to-wit, ever since the m OF ALABAMA. Stein v. The State. y*ar 1843, collected and received water-rates, or rents, from the inhabitants of said city, amounting to a large sum, to-wit, the sum of §100,000, and does yet collect and receive water-rates from the inhabitants of said city; and that the said Stein, by reason of said agreement and said confirmatory act, and of his acceptance thereof, as herein- before averred, became liable and bound, and still is liable and bound, to supply said city and its inhabitants with good and wholesome water, as hereinbefore averred. And the grand jury further find, that there were and are, in said city of Mobile, a large number of inhabitants, to- wit, thirty thousand, and a lar^* number of taverns, hotels, restaurats, and place* of entertainment for the public, where all the citizens of said State have been and are now accustomed, and had and have a right, to stop, stay, and tarry ; to-wit, five taverns, live hotels, five res- taurats, aud five places of entertainment for the public. And the grand jury further find, that the said Stein has heretofore wholly failed and neglected, and does still fail and neglect, to supply the said city and its inhabitants with good and wholesome water; but, on the contrary, that the said Stein unlawfully did, at divers times, from the year 1843 to the finding of this indictment, and does now, Bell and dispose of, to Nelson Walkley .and others, inhabitants of said city, and to all the citizens of said State stopping, staying, and tarrying at the said taverns, hotels, restaurats, and places of entertainment for the public, unwholesome and poisonous water, and did and does receive pay for the same; to the great injury of the said Nelson Walkley and his family, and to the common nuisance of the said inhabitants of Mobile, and of all the citizens of the said State stopping, staying and tarrying at the said taverns, hotels, restaurats, and places of en- tertainment for the public ; against the peace and dignity of the State of Alabama." The contract, above referred to, by which Stein leased the city water-works of Mobile from the corporate au- thorities, contained the following stipulations: .The parties of the first part leased and granted to Stein, for 32 SUPREME COURT Stein v. The State. — ■ ■ — — ■ — - — — — — — -f — twenty years, "the sole privilege of supplying the city of Mobile with water from Three-mile creek," together with all the rights, benefits and^'advantages, accruing to them under the several acts of the legislature and ordi- nances of the city relative to the city water-works ; and covenanted and agreed with him, that he should have quiet possession during the period of his lease, with power to collect water-rates, at the prices named in the contract, " and power and authority to conduct the water from any part of Three-mile creek, so that the same may be good and wholesome ; " and that they would pay him, at the expiration of the lease, the value of the works which he might erect, to be fixed by arbitration. Stein, on his part, covenanted to commence the erection of the necessary works within one month after the ratification of the contract by an act of the legislature; to introduce the water into the city, within two years from the date of the contract, " so that the said city and its inhabitants may, at all times, be supplied with such a quantity of water as may be produced, through the said pipes as far as they are laid ; " to furnish a certain number of water-plugs for the use of the city, free of charge; and to deliver up the works, at the expiration of his lease, at their value as fixed by the arbitrators. The act|of the legislature, above referred to, confirmed and ratified this agreement, and granted to Stein all the rights, privileges and immunities, which had been previously granted to the corporate au- thorities of Mobile, and to the old Mobile Aqueduct Company. The defendant demurred to the fifth count of the in dictment, and assigned the following grounds of demur- rer : " 1st, because no criminal knowledge of the character of the water is set out ; 2d, because the charac- ter of the water, or that which makes it poisonous or un- wholesome, is not set out; 3d. because the contract does not require Stein to furnish 'good and wholesome water,' as charged, but only water from the Three-mile creek, and it is not charged that better water could be furnished from said creek, or that there has been any default in OF ALABAMA. 33 Stein v. The State. this respect; 4th, because the names of the persons sold to, are not properly set out; and, 5th, because the matter charged is not an indictable offense." The court over- ruled the demurrer, and the defendant excepted. It appeared on the trial, as the bill of exceptions shows, that leaden pipes were used by the defendant in the dis- tribution of water through some of the streeU of the city ; and it was contended, on the part of the prosecution, that this rendered the water unwholesome and poisonous. " The State proved by Walkley, who was a practicing physician and chemist, that several 'persons, who drank water supplied to him by the defendant, through his hydrant, were affected with a disease, which had all the symptoms of 'lead colic,' and which he considered * lead colic ;' and evidence was offered tending to show, that said disease was caused by drinking the water from said leaden pipes. Walkley gave the symptoms, diagno- sis and treatment of lead colic, and said, that paralysis of the hands and arms was one of the most certain symp- toms ; and he gave an analysis of the water, and much other testimony tending to show that said water was un- wholesome and poisonous by reason of the lead. The State then offered one Bruce as a witness, who was not a physician, and who testified, "that three of his children had been sick and paralyzed, when they drank water from his hydrant, in another part of the towu ; that they re- covered on ceasing to driuk it, became again sick and paralyzed on again drinking it, and again recovered on ceasing to drink it. The defendant objected to this evi- dence — 1st, because he was not indicted for selling poison- ous water to Bruce, and his case was not mentioned in the indictment ; and, 2d, because special and particular cases of injury, not alleged in the indictment, could not be proved in this case. The court overruled the objections, and admitted the evidence; to which the defendant ex- cepted. The State also introduced one Thompson as a witness, and asked him, 'what he knew about the lead pipes.' He testified, that he formerly used water from the lead pipes ; that, while he did 60, a negro on his lot 34 SUPREME COURT Stein v. The State. was sick, and, in describing his sickness to him, com- plained of a pain and weakness in his arm; and that he (witness) was not a physician. The defendant objected to this evidence, also, on the same grounds as to the evi- dence of Bruce, and because the negro's statements to the witness were mere hearsay. The court overruled the ob- jections, and admitted the evidence ; to which the defend- ant excepted." Jno. T. Taylor, with whom was E. S. Dargan, for the defendant, made the following (with other) points : 1. The indictment fails to show an indictable offense. If all the allegations in it were true, the defendant would only be liable, in a civil action, for a breach of contract. 4 Bla. Com. 4 ; 1 ib. 4G ; 3 Greenl. Ev. § 1 ; 1 Mass. 137 ; Code of Alabama, § 3065. Moreover, if an indictment would lie for a breach of the contract, this indictment fails to show a breach. J The contract itself, which is set out in the indictment, simply binds the defendant to supply the city of Mobile with water from the Three-mile creek, and contains no stipulation as to the character or quality of the water. The indictment does not charge that he failed to bring water from Three-mile creek, or that he brought water from elsewhere than the Three- mile creek, or that he did not bring as good water as that creek affords, but simply that he brought " unwholesome water," — an allegation which may consist with the entire fulfillment, on his part, of every obligation imposed on him by the contract. The averment of the indictment, that the contract bound him to furnish " good and whole- some water," is at variance with the contract itself, and amounts to nothing. 2. The indictment is framed strictly on the contract, and for a breach thereof; and the question cannot be raised under it, whether an indictment would lie against the defendant, independent of the contract, for the common-law offense of selling poisonous water. But the indictment is fatally defective, whether considered as framed for a breach of the contract, or for the common- OF ALABAMA. 35 Stein v. The State. law offense, because it does not contain such a statement of the charge as is required by the cardinal doctrines of the criminal law. The constitution itself requires, that the offense shall be described in the indictment fully, plainly, and formally : in such language as will enable the court to determine, on an inspection of the indict- ment, whether the charge amounts to a violation of the criminal law, and, at the same time, inform the defend- ant of the nature of the offense with which he is charged, and enable him to prepare for his defense; in such language, too, as will fully identify the accusation, and prevent the defendant from being tried for an offense different from that which was investigated by the grand jufry.— 3 Greenl. Ev. § 10 ; Archb. Cr. PI. 42, 51 ; 29 Ala. 28 ; 32 Ala. 584 ; 83 Ala. 397 ; 24 Miss. 594. The de- fendant was convicted for introducing water into the city through leaden pipes ; yet neither he nor the court could say, from an inspection of the indictment, that this was the charge which the grand jury had investigated and pre- ferred against him. The indictment ought to have stated how, or by what means, the water was rendered unwhole- some and poisonous. — 2 Missouri, 226 ; 1 English, 519 ; 3 Murph. (N. C.) 224; 21 Maine, 9 ; 13 Metcalf, 365; 3 Iredell, 111 ; Breese, 4 ; 6 Grattan, 675 ; 31 Maine, 401 ; 3 Blackford, 193. In the analogous cases of indictments for selling unwholesome provisions, and for attempts to poison, such an allegation is indispensible to the validity of the indictment.— 11 Ala. 57 ; 6 Ala. 664 ; 19 Ala. 28, aud numerous cases there jcited. It should have been averred, too, either that the defendant himself poisoned the water, or that he knowingly sold unwholesome and poisonous water; otherwise he might be tried, convicted and punished, for the act of a third person, of which he was wholly ignorant and blameless. — 3 Greenl. Ev. § 13 ; 1 Bishop's Criminal Law, §§ 80, 227 ; Rex v. Wheatley, 1 Leading Criminal Cases, 7. 3. The testimony of Bruce was improperly admitted. If the indictment is to be considered as preferred against the whole water-works for a nuisance, evidence of special 36 SUPREME COURT Stein v. The State. ■ cases of injury was inadmissible; and if it is to be con- sidered as an indictment for individual cases of selling unwholesome water, the evidence must be confined to the persons named in the indictment. — 3 Greenl. Ev. § 22 ; 20 Ala. 83 ; 25 Ala. 40 ; 32 Ala. 584. 4. The testimony of Thompson ought to have been excluded for the same reasons, and because it was mere hearsay. R. B. Armeste^d, with whom were R. H. Smith, and M. A. Baldwin, Attorney-General, contra. — 1» The fifth count of the indictment is framed on the idea, that the defendant is a public contractor, and has failed to perform a public duty imposed on him by the terms of his con- tract. That the indictment shows an indictable offense, see 8 Bligh, 691 ; 3 Barn. & Ad. 77 ; 5 Bing. 91. 2. That the indictment is good and sufficient, whether founded on the defendant's contract, or considered as an indictment' for a public nuisance, without an averment of the scienter, see 3 Hawks, 378; Wharton's Precedents, 764 ; 28 Vermont, 583"; 6 Car. & P. 292 ; 3 Indiana, 193; 4*6.515; ION. H. 297; 1 Serg. & R. 342 ; 6 Porter, 372; 5 Porter, 366 ; 3 Archb. Pr. 007 ; 1 Hawk. P. C. 692 ; I Russell on Crimes, 318; Wharton's Crim. Law, 2373; II Humph. 217; 9 Barb. S. C. 173. 3. The indictment being for a nuisance, the testimony of Bruce and Thompson was clearly admissible. -That the complaints of the negro were admissible, as a part of the resyestcc, see 17 Ala. 620 ; 6 East, 188; 2 Car. & K. 354 ; 1 Greenl. Ev. § 102, and cases cited. A. J. WALKER, C. J.— [Feb. 23, 1861.]— When a party owes the public a duty, although resulting from a contract, he is indictable for a breach of that duty. The obligation to the public, imposed on the defendant by his contract, was to supply water to the city of Mobile from Three-mile creek. The coatract itself stipulates nothing as to the quality of water that may be furnished, further than may be implied in the requisition, that it shall be OF ALABAMA. 37 Stein v. The Stale. brought from Three-mile creek. The indiotment alleges the defendant's failure and neglect to supply "good and wholesome water" to the inhabitants of Mobile, and also the sale and supply by him, to those inhabitants and the persons visiting the city, of " unwholesome and poison- ous water." The former branch of this allegation is in- determinate, and comports equally with the idea, that there was not a supply of any water at all, or that there was a supply of water which was positively bad. In either alternative, there would be a failure to supply "good and wholesome water." The meaning, however, becomes certain, when reference is had to the latter branch of the allegation, which shows that there was a supply of water; and the consistency of the two is pre- served, by considering the former as asserting that the water supplied was not good and wholesome. There is, then, no allegation of a failure to supply water. The gravamen is, that there was a supply of water, the quality of which was unwholesome and poisonous. The defend- ant may have supplied water from Three-mile creek, which was, in the language of the indictment, "unwhole- some and poisonous," because the water of*the creek was unwholesome and poisonous ; and he may, therefore, have perpetrated the grievauce alleged in the indictment, in the exact fulfillment of his contract. The indictment, therefore, shows no violation of any duty imposed on the defendant by the terms of his contract; and we may dis- miss from our consideration the arguments which refer his criminality to a breach of his contract. [2.] The indictment charges, however, that the poison- ous water was supplied to all the citizens of Mobile, and to those who might visit the city. Such an act is suffi- ciently general and extensive in its effects to constitute a nuisance ; aud the poisoning of the water consumed by an entire community, and by all who might go that way, would certainly possess the quality of injuriousness to the community, requisite to constitute a nuisance. — 1 Bishop's Criminal Law, 352; 2 z'6.848. If, then, the indictment shows that the defendant is criminally guilty 38 SUPREME COURT Stein v. The State. of inflicting the public injury alleged, it is a good accu- sation of nuisapce. The indictment does not charge that the defendant knowingly or intentionally supplied water of unwholesome or poisonous quality; nor that he poisoned the water, or imparted to it its unwholesome quality ; nor that the same was done by his agents or servants. The defendant may, therefore, have done all that is alleged, and yet have been guilty of no known or intentional wrong. Can it be that, upon such facts, the defendant is criminally guilty ? The theory of the law is, that a criminal intent is a necessary ingredient of every indictable offense. The maxim is, Actio nonfacit reum, nisi mens sit rea. It is not necessary, in all cases, either to aver or prove the guilty intent; and the influence of legal presumptions may, sometimes, be such, that the legal imputation of a guilty intent may be made in contravention of the fact; as for instance, the presumption that every one knows the law. "Where the gist of the offense is neglect, or carelessness, it would, as a general rule, be a solecism to speak of a guilty knowledge, since the neglect itself usually eviden- ces the guilty mind; and the principle has been carried, in some cases, to the extent of making one criminally responsible for not using proper precaution to prevent the injurious acts of his servant. On this principle rest the decisions, where the servant rendered bread unwholesome, by the improper use of the ingredients ; where the su- perintendent of a gas company corrupted the water of the river Thames, by conveying into it deleterious gases and fluids; where the engineer of a railroad neglected to ring the bell, or blow the whistle, at the crossing of a street ; where the owner of a river caused detriment to neighbor- ing lands by neglecting to scour it; where a corporation neglected to repair sea walls, in violation of its charter ; and where other neglects, of like character, have been com- mitted. — Vermont v. Central Railroad, 28 Vermont, 583; Rex v. Medley, 6 Car. & P. 292 ; Henley v. Mayor of Lime, 5 Bing. 91 ; S. C, 5 B. & Ad. 77 ; S. C, 8 Bligh's New R. 690; 1 Bishop on Criminal Law, 230, 231; OF ALABAMA. 39 Stein v. The State. Wharton's Amer. Criminal Law, 10, 11. But this prin- ciple does not apply here, because the charge against the defendant is really an act committed, and not the omis- sion or negligent performance of an act. Neglecting to supply good and wholesome water, and supplying un- wholesome and poisonous water, cannot tye tortured into a eimple charge of neglect. As well might it be said, that he who administers poison, dissolved in water, is 6imply guilty of neglecting to administer pure water; or that he who sells poisoned bread, is simply guilty of neg- lecting to sell wholesome bread. Such sophistry would convert every positive act into a neglect. The poisonous quality of the water certainly may have been the result of some negligence, or carelessness, in the choice or ar- rangement of the instruments employed in supplying it: but such is not the charge, and we cannot aid the indict- ment by an inference of it. It is a received priruuple, also, that " where the state- ment of the act itself includes a knowledge of the ille- gality of the act, no averment of knowledge or bad intent is necessary." — Wharton's Amer. Crim. Law, 297; Com- monweath v. Stout, 7 B. Monroe, 217; Commonwealth v. Elwell, 2 Metcalf, 190. " The law presumes that every person intends to do that which he does." — 1 Bishop on Criminal Law, § 248. Hence, whenever one does an act legally wrong in itself, the law presumes the intent to do that act : the act, of itself, evidences the illegal intent. The doing of an act in its nature illegal — illegal without any extrinsic qualification — of itself evidences the criminal intent. But such is not the character of the act charged here. The furnishing of poisoned water is not, of itself, a crime : the criminality of the act depends upon the question, whether it was furnished with a knowledge of the poisonous quality; knowledge is an ingredient of the offense, and must be averred. — Wharton's Am. Crim. Law, 297 ; State v. Brown, 2 Speers, 129. Accordingly, where one is indicted for selling an obscene book, or for carrying oft' a slave, or for an indecent exposure of the person, or for keeping and suffering to go at large a dog i >URT au animal or with a i in wholesome • for uttering a forged note, or . — it ig held, that an ;.. kuowled lary. — 1 Bennett k Beard's Criminj 351; Wharton's Am. Crim, idictmcn rchbold's Crim. 44; 8 Chitty'a Crim. 13; Dui 7 Hum. im Gray, 1 V tin uu mo n wealth v. Stout, 7 B. Mo The r rules pertaiuing to tl ity of a-. nter. winch it is not necessary for a |»re- sumed to intend the natural and pr< ■>.- 1 Bishop on Criminal Law. 248. From the that the criminality of BUpplyil being d iia quality, it is au uui that km and I the indi ror iu the admisi .ml Thompson. Tli to the question, wli irnished uuvvhoh ublic in tl t Mobile. The U the pri:i I in num« . by this v. Eft W< any of the other ■ J'; ind< d. OF ALABAMA. 41 Oliver v. The State. OLIVER vs. THE STATE. [iMDICTVBNT FOR OliTATNlNi; MONKV B1 KTENSES.] 1. Joinder of counts. — Tn an indictment for obtaininp money by false . if the false pretense L, in different counts, to hiiv^ tade to "0. B. 8, *j>d 0. L. s .. who w< re at the time members <>f n mercantile firm of the name and -.," to "C B. S.." and to "i". B. 8. and C. L. S.," th< inder of 9 ent in averring value of property. — An aver- ment in such indictment, that, by means of the false pretense charf ndant obtained "sixty-five dollars in money," is Bufficicntly definite and certain, without an additional averment of the value of the money. in. description of written instrument. — An instru- ment of writing, purporting in its commencement to he an inden- ture between two parties, reciting that the party of the Erst part, for a valuable consideration, "has sold, and hinds himself to deliver, to the said party of the second part, all of his p] of cotton now planted, or so mu«'li of it as will satisfy his indebt- | arty of the second part ;" that " this conveyance i is a security f<>r the payment'' of a debt due from tin- party of the first part t<> ih<' party of the second part, "which . will i< od< r this conveyance void, and, if ml t be made in men t of the above sum, then th< ■i part, and In- j author;. ;n crop of cotton, or as much of it as "ill pay all of irty of the s< cond , i and ■ ..t the lii »l part, is suffici< ntl; d in ble in evid I ion. Tried b Hon. A. A. Colkmax. a .n this • -ils : "T county fore •8 Oliver did fnlfiely B iiarlcs I. of a mercantile firm of te ami . with il ad latisJied a c< rttlt, 1 42 SUPREME COURT Oliver v. The State. which William P. Richardson had or held upon the said James Oliver's cotton crop; and that he, the said William Pinckney Richardson, had directed and given authority to him, the said James Oliver, to receive from the said Sanders & Stone the proceeds of said cotton crop, which was then in their hands; aud, by means of such false pretense, obtained from the said Sanders & Stone the sum of sixty-five dollars in money; against the peace and dig- nity," &c. "The g^rand jurors of said county further charge, that, before the finding of this indictment, the said James . Oliver did falsely pretend to Cornelius B. Sanders, with intent to defraud, that he, the said James Oliver, had satisfied a certain deed of trust, which he, the said James Oliver, had made to one W. P. Richardson on the 15th day of May, 1857, upon the crop of cotton which he, the said James Oliver, had planted at the time said deed was made; and that he, the said Oliver, was authorized by the said W. P. Richardson to receive from him, the said Cor- nelias B. Sanders, the proceeds of the sale of the said cotton crop, which was, at the time of said -false pretense, in the hands of the said Cornelius B. Sanders; and, by ' means of such false pretense, obtained from the said Cor- nelius B. Sanders the sum of sixty-five dollars in money, * being part of the proceeds of the said cotton crop so in the hands of the said Sanders; against the peace aud , dignity," &c. ^The grand jurors of said county further charge, that, before the finding ot this indictment, the said James Oliver did falsely pretend to Cornelius B. Sanders and Charles L. Stone, with intent to defraud, that he had sat- isfied a certain deed of trust, made by him, on the loth day of May, 1857, to one W. P. Richardson, upon the crop of cotton which he, the said James Oliver, had planted at the time said deed was made, and that he, tfje said James Oliver, was authorized by the said W. P. Richardson to receive from them, the said Cornelius B. Sanders and Charles L. Stone, certain proceeds of the sale of said cotton crop, whidh they had in their hands; OF ALABAMA. Oliver v. The State and, ^y, means of such false pretense, obtained from the said Cornelius B. Sanders and Charles L. Stone the sum of sixty-five dollars in money; against the peace and dignity," &c. The defendant demurred to the indictment — "1st, be- cause the money is not charged to be the property of any person; 2d, because there is no value charged as to the money; 3d, because it is uncertain whether the defendant is charged with a felony or not; 4th, because there is a double issue presented in eaeh count; 5th, because there is a special pretense without a special breach; 6th, be- cause there is a misjoinder of counts and offenses; and, 7th, because the indictment is uncertain and obscure." The court overruled the demurrer, but the record does not show that the defendant reserved an exception to its decision. "On the trial," as the bill of exceptions states, "the State offered in evidence an instrument of writing, which had been duly proved and recorded according to law, and of which the following is a copy: 'This indenture, made the 15th day of May, 1857, between James Oliver, of the first part, and W. P. Richardson, of the second part, (all of the State of Alabama, and county of Pickens.) wit; nesseth, that the said party of the first part, for and in consideration of the sum of one hundred and seventy- eight 25-100 dollars, to him duly paid in hand, has sold, and binds himself to deliver, to the said party of the second part, all of his present crop of cotton now planted, or so much of it as will satisfy his indebtedness to the said party of the second part. This conveyance is in- tended as a security for the payment of one hundred and seventy-eight 25-100 dollars, on the 25th day of De< ber, 1857 ; .which payment, if duly made, will render this conveyance void; and if default be made in the payment of the above sum, then the said party of the second | and his assigns, are hereby authorized to- sell his certain crop of cotton, or so much of it as will' pay all of his dues to the said party of the second part, with costs -and ex- penses allowed by law. In witness whereof, I have here- 44 SUPREME COURT Oliver v. The State. unto set nay hand and seal.' (Signed) 'James Oliver.' [Seal.]' The defendant objected to the introduction of said paper as evidence to the jury, but the court overruled his objection; and he excepted." W. R. Smith, for the prisoner. — 1. The indictment is defective, in the several particulars which were assigned as grounds of demurrer. It charges a special pretense, but assigns no breach of that pretense. It does not charge the ownership of the money; and non constat but that it whs the property of the defendant himself. It does not charge the value of the money, and, therefore, leaves it uncertain whether any offense was committed. It charges the false pretense to have been made to differ- ent persons, and t\\-2 money to have been obtained from different persons ; and presents as plain a case of mis- j oinder, as if it alleged, in different counts, a larceny from A aud a larceny from B, or an assault and battery on A and an assault and battery on B. 2. The term "deed of trust," as used in the indict- ment, must be construed in its legal sense. In a techni- cal deed of trust there must be a trustee. The paper read in evidence, conveyed no legal title to any one, and only gave Richardson power to sell his own cotton. The crop planted was a more expectancy, and could not be- come Richardson's until actually delivered. M. A. Baldwin, Attorney-General, contra, cited John- son v. The State, 20 Ala. 62; O'Connor v. The State, 30 Ala. 9; People v. Stetson, 4 Barbour, 151. STONE, J.— [March 1, 1861.]— The indictment in this case contains three counts, each of which is a substantial compliance with the form furnished in the Code, — form No. 35, page 702. The only difference in the three counts consists in the designation of the person to whom the false pretense was made. The varying averments in the several counts, in this regard, were evidently inserted to meet every possible phase of the proof; as the same OF ALABAMA. 45 Merkle v. The State. might arise. The averment of the person to whom the false pretense was made, was part and parcel of (he rjieans by which the offense was committed. The counts are severally good. — Lowenthall v. The State, 32 Ala. . We have frequently held, that two or more counts might he joined in the same indictment, each of which charged ft distinct felony, if the offenses were of the same character, and subject to the same punishment. — Johnson v. The State, 20 Ala. G2 ; Cawley v. The State, at the present term. The demurrer for misjoinder was properly overruled. — Scott v. The State, at the present term. . [2.] Money is, itself, a measure of value; and that value cannot he rendered more definite by an averment of its value. The phrase "sixty-five dollars in money," has a defined meaning, which is not rendered more clear by the Superadded expression, worth sirtu-jicr dollars. [3.] The instrument read in evidence was sufficiently •described as "a deed -of trust." — Price v. Mastersou, ,35 Al». 393. The judgment of the circuit court is affirmed. MERKLE v*. THE STATE. [rHDICTKBJSlT FOR SELLING LIQUOK TO STUDENT OF COLLEGE.] 1. Opinion of witness, admissibility of. — A witness who has frequently drunk fermented liquors, and who can distinguish them by their taste, though he has no special knowledge of chemistry, is compe- tent to express an opinion on the question, whether lager beer is or is not a fermented liquor. 2. Books of science, admissibility of. — Extracts from standard medical books are competent evidence, ami may be read to the jury. 3- Wftflt constitutes offense of selling liquor to stud fid or minor. — The statute prohibiting the sale or delivery of liquor to students or ' 46 SUPREME COURT Merkle v. The State. minors, (Code, \\ 3280-81,) applies to fermented liquors as well as to vinous or spirituous liquors. From the Circuit Court of Perry. Tried before the Hon. Porter King. In this case, Luther Merkle and William II. Redding were jointly indicted for selling liquor to a student of Howard college, in the town of Marion, and were jointly tried. On the trial, as the bill of exceptions shows, the State first introduced as a witness one Pollard, the student . to whom the liquor was sold, and who testified to the fact that, within the period covered by the indictment he bought a glass of lager beer from the defendant Merkle, who was acting as clerk or ascent for his co-de- fendant, in a confectionary store belonging to the latter. The State then introduced one Thornton as a witness, who testified, " that he was professor of chemistry in Howard eollege ; that the fermentation of organic bodies is one of the subjects treated of in Chemistry; that he had studied that subject in the different books on chemis- try, and was theoretically acquainted with it, but had no practical knowledge of the process of fermentation, or the art of brewing; that he had drunk lager beer at various places, and in the store of the defendant Redding; and that he was acquainted with the taste of fermented liquors, from having frequentl}' drank liquors which were fermented." On this state of facts, the court allowed the witness, against the objection of the defendant Merkle, to state that, "lii his opinion, lager beer is a fermented liquor; " to which said Merkle excepted. Said witness afterwards testified, on cross-examination, " that he knew nothing of the fer- mentation of liquors, except what he had read in books on the subject ; that he was not a brewer, and knew nothing whatever, practically, of the fermentation of liquors; that all he knew on the subject was theoretical, and derived from books ; that in speaking on the subject, he had only given, and could only give, the contents thereof, so far as he knew the same ; that the books them- OF ALABAMA. 47 Merkle v. The State. selves, if in court, would be better evidence than his testimony, because he could not use such language as was used in them, and could not recollect all that was there'll stated on the subject; that his knowledge of chemistry did uot aid him in reference to knowledge acquired by tasting said beer; and that one not acquainted with chemistry could judge of said beer, by the taste, as well as he." On these facts, the defendant Merkle moved the court to exclude from the jury the Opinion of the witn above stated, and reserved an exception to the overruling of his objection. The State afterwards read in evidence to the jury an extract from the " United States 1) ion/," by Wood & Burke, on the subject of vinous and fermented liquors ; having first proved, by the testimony of a practicing physician, " that said book was recognized by the medical profession as good authority on all subjects therein treated of; " and to the admission of this ex-, tract as evidence the defendant Merkle excepted. The court charged the jury, among other things, "that, if they believed the beer sold to said Pollard was a ferment- ed liquor, it would be their duty to find said Merkle guilty, whether said beer would intoxicate or net ; " to which charge said Merkle reserved an exception. Brooks & Garrott, for the defendant. M. A. Baldwin, Attorney-General, contra. II. W. WALKER, J.— [Jan. 22, 1861.]— It may be ad- mitted, that the bill of exceptions excludes the idea, that the witness Thornton was at all aided by his knowledge of chemistry, in the formation of his opinion that lager beer is a fermented liquor. It is shown, however, that he had frequently drunk fermented liquors, and that ho was able to distinguish, by their taste, liquors which have undergone the process of fermentation. We hold, that such a witness, even though he may have no special knowledge of the science of chemistry, may be permitted to testify, that a particular liquor, which he has tasted, is, or is not, fermented. The answer to the question, whether 48 SUPREME COURT Murphy v. The State. a liquor has gone through the process of fermentation, does not necessarily demand a knowledge of chemical science, but is usually determinable by the senses ; and consequently, the judgment of ordinary persons, having an opportunity of personal observation, and of forming a correct opinion, is admissible. — McCreary v. Turk, 29 Ala. 245; Wilkinson v. Mosely, 30 Ala. 572; Ward v. Reynolds, 32 Ala. 384 ; Pullman v. Corning, 14 Barb. 174,181. [2 ] The book, a portion of which was read in evidence, was shown to be a standard medical work; and under the rule adopted in Stoudenmuier v. Williamson, (29 Ala. 558,) the objection to the extractas evidence, was properly overruled. [3.] Under sections 3280 and 3281 of the Code, it is not necessary to the conviction of the defendant, that the liquor sold, delivered or given to a student or minor r should be intoxicating. The prohibitions of these sec- tions extend to any fermented liquor which is commonly used as a beverage. There was, therefore, no error in the charge of the court. Judgment affirmed. MURPHY vs. THE STATE. [indictment for murder.] . Challenge of jurors. — In all trials for capital or penitentiary offenses, (Code, \ 3585,) the State may, at its election, challenge for cause a juror who has a fixed opinion against capita! or penitentiary pun- ishments; yet the statute does not impose on the court the duty, ex mero motu, of setting aside a juror for this cause; nor can the prisoner complain if the State waives or forbears to exercise its right of challenge. . General objection to evidence.— A. general objection to evidence, a part of which is legal, may be overruled entirely. OF ALABAMA. 49 Murphy v. The State. 3. Homicide ; presumption of malice.— The charge of the court to the jury in this case, as to the presumption of malice in cases of homi- cide, construed in connection with the fact, indisputably estab- lished, that the killing was perpetrated with a deadly weapon, held to contain no error prejudicial to the prisoner. From the Circuit Court of Montgomery. Tried before the Hon. James B. Martin. The prisoner in this case, Patrick Murphy, was indicted for the murder of Hugh Keys, and pleaded not guilty to the indictment. "On the trial," as the bill of excep- tions states, "the court asked a juror, regularly sum- moned, whether he had a fixed opinion against capital or penitentiary punishment. The attorney-general there- upon said, that he would waive the challenge for cause on behalf of the State. The prisoner insisted, by his counsel, that the juror was incompetent for cause, and that the State could not render him competent by waiv- ing the objection. The court held otherwise, and put the juror upon the prisoner, who, to avoid his being placed on the jury, was compelled to challenge him per- emptorily, and thereby lessen, to that extent, his number of peremptory challenges; to which ruling of the court the prisoner excepted." "To prove the circumstances of the killing, the State introduced and examined as a witness one Mrs. Keys, the widow of the deceased. On cross-examination of said witness, the prisoner's counsel asked her, whether she did not swear, on the preliminary examination of the prisoner before Squire Nettles, on the 23d December, 1859, for the offense for which he was now being tried, that 'he, (meaning the prisoner,) always told Mr. Keys to come on ;' and read said expression to her from her sworn de- position, taken down in writing on said preliminary examination. Ihe witness stated, that she had not so sworn on said preliminary examination. Thereupon the prisoner's counsel produced and proved the written depo- sition of said witness, as taken down on said preliminary examination, and read from it these words, ' He always 50 SUPREME COURT Murphy v. The State. told Mr. Keys to come on ;' and proved that said witness swore to said expression on said preliminary examination. The counsel for the State then offered to read the whole deposition of said witness, as written down on said pre- liminary examination ; not as original evidence in the cause, but to explain the testimony of said witness, and to show that there was no conflict between her testimony then and now. The prisoner objected to this evidence, as illegal, irrelevant, and calculated to mislead the jury; but the court overruled his objections, and admitted the evidence for the purpose for which it was offered ; to which the prisoner excepted." The court, ex mero moiu, charged the jury as follows: "Under this indictment, if the evidence, under the law as laid down by the court, warrant it, the prisoner may be convicted of murder in the first degree, murder in the second degree, or manslaughter in the first degree. Mur- der is the killing of a reasonable person, with malice aforethought, express or implied. Express malice is evi- denced by threats, former grudges, lying in wait, &c. ; while malice maybe implied from the preparation made, the chancter of the weapon used, &c. Manslaughter is the wrongful taking of the lite of a reasonable being, without malice; and it occurs when one takes the life of another, in sudden heat of passion, without malice. No killing can be murder, in the absence of malice ; nor can a killing be manslaughter, when done with malice. It devolves upon the State, in every criminal case, to prove the facts constituting the defendant's guilt, and to satisfy the jury, beyond a reasonable doubt, of their. truth. In this case, the State must prove, that the defendant, prior to the finding of the indictment, and in the county of Montgomery, killed Hugh Keys with malice aforethought. So regardful is our law of human life, that whenever, it is proved that one person has taken the life of another, the law presumes that it was done with malice, and imposes upon the slayer the onus of rebutting this presumption, unless the evidence which proves the killing itself shows it to have been done without malice. Murder, by our law, OF ALABAMA. 5L Murphy v. The State. is divided into two degrees— murder in the first, and mur- der in the second degree. Every homicide, perpetrated by poison, lying in wait, or any other kind of willful, de- liberate, malicious and premeditated killing, is murder in the first degree. Every homicide, committed with malice aforethought, and which is not embraced in the above definition, is murder in the second degree. Manslaugh- ter is the wrongful killing of a reasonable creature in being, without malice; and if done voluntarily, is man- slaughter in the first degree. "Examine this case, then, first in reference to murder in the first degree, lias the State proved, that, prior to tbe finding of this indictment, and in this county, the defendant killed Hugh Keys with a bowie-knife; and further, that he did so willfully, deliberately, malicioush', and with premeditation ? Docs the whole evidence in the case satisfy your minds, beyond a reasonable doubt, that these things, and each of them, are true? If so, then the defendant would be guilty of murder in the first de- gree. D\ on the contrary, the evidence fails thus to satisfy your minds, either of the killing, or that it was done willfully, deliberately, maliciously, and with pre- meditation, then the defendant would not be guilty of murder in the first degree, and you must proceed to in- quire, whether the evidence shows him to be guilty of murder in the second degree. It is conceded, that the defendant took the life of Keys; and if it does not amount to murder in the first degree, then, whether it is murder in the second degree, depends upon the question, whether the killing was done with malice aforethought. As the court has already informed you, when a killing has-been proved, the law presumes that it was done with malice, unless the same evidence which proves the killing, dis- proves or rebuts the presumption of malice. Does the evidence which proves the killing, itself disprove or rebut the presumption of malice? If, however, this evidence does not repel the presumption of malice, then look to all the other evidence in the case, — both that which tends to rebut the idea of malice, if there be such evidence, and 52 SUPREME COURT Murphy v. The State. all the evidence tending to show that the defendant was actual ed by malice, if there be such evidence, — and if you find, from the entire evidence, that the killing was done by the defendant with malice aforethought, and that it does not amount to murder in the first degree, then the defendant would be guilty of murder in the second de- gree. But, if you find, upon a fair purvey of the evidence, that the killing was done without malice, then the defen- dant would not be guilty of murder ; and in that event, you must next inquire, whether the killing amounted to manslaughter. If the defendant^ in this county, and before the finding of this indictment, wrongfully and voluntarily killed Hugh Keys with a bowie-knife* without malice, express or implied, then he would be guilty of manslaughter in the first degree. "Homicide may be committed — human life may be taken — upon such provocation ; and under such circum- stances, as will acquit the slayer of all guilt; and such, the defendant says, is the homicide he has committed. He insists, that though he took the life of Keys, he did it in self-defense; that he did it to save his own life, or to save his person from great bodily harm. The law on that subject is this : Every, man has the right to strike in self- defense — to repel force by force, when attacked, even to the death of the assailant; provided, that the force which he uses is not disproportioned to the force which he is repelling. In this case, if you should believe, from the evidence, that it was necessar} 7 for the defendant to strike at the time he did strike, in order to save his own life,- or to prevent the infliction of imminent and great bodily harm,, and that he struck for this purpose, then the de- fendant would not be guilty. Or, if you should believe that, at the time the defendant struck, the circumstances which surrounded him were such as would have impressed the mind of a reasonable man with the honest belief, that it was necessary to strike, to save his own life, or to pre- vent great and impending bodily harm; and that the de- fendant, actuated by these motives, struck, — then, though death was the consequence, he would be guiltless. The OF ALABAMA. 53 Murphy v. The State. law excuses the taking ot human life, when the motive which prompts the act is one of self-defense and self-pro- tection, and under circumstances inducing the reasonable belief that the act was necessary. You must determine what is the evidence on this subject. The State insists, that the defendant, entertaining the malicious intention to take the life of Keys, sought a quarrel with him, in order to find an opportunity to gratify his mulice by taking his life. If, from a survey and impartial consid- eration of all the evidence, you believe that this is true — that the defendant sought the quarrel with the deceased, in order that h'j might take advantage of it to kill him,* and, in obedience to this intention, did bring on the quarrel, and did take the life of the deceased — then, no provocation, no danger to himself, thus brought on, would Txcuse the killing. But what is the truth ot this matter? Does the evidence show that the position of the State, or that the position of the defendant, is true ? This you must determine, from the evidence.' To each part of this charge the prison er excepted. I Chilton & Yancey, for the prisoner. M, A. Baldavin, Attorney-General, contra. A. J. WALKER, C. J.— [May 14, 1861.]— By section 3585 of the Code it is provided, that, in all trials for a capital or penitentiary offense, it is a good challenge for cause by the Stale, that the juror has a fixed opinion against capital or penitentiary punishments. The statute makes the specified cause a ground of challenge by the State ; but it cannot, without the most glaring perversion of its meaning, be understood as making it a ground of challenge by the prisoner, or as imposing upon the court the duty, ex mero motu, of setting aside a juror for the cause mentioned. The State may, of may not, at its election, challenge a juror for the cause mentioned; and the prisoner has no right to complain that the State for- bears to exercise the right of challenge. [2.] It is possible that some portion of the evidence of Mrs. Keys, which the court admitted against the prison- 54 SUPREME COURT Point v. The State. er's objection, did not serve to explain either the expres- sion as to which she was contradicted, or her motives; but it is certain that much of it was so connected with the particular expression, as to render the part so con- nected competent evidence. This being the case, the court, as we have often decided, committed no reversible error in overruling a general objection to the entire evi- dence. < In placing our decision, however, upon this ground, we must not be understood as affirming that any portion of the evidence was illegal. Upon that subject we express no opinion. [3.] The counsel for the prisoner, though confessedly able, have pointed out nothing objectionable in the charge of the court ; and if there be any error in it, prejudicial to the prisoner, a careful examination has not enabled us to discover it. Construing the charge iu reference to the fact, indisputably established, that the killing was perpe- trated with a deadly weapon, we think there can bo no doubt that the instruction as to the presumption of malice was correct. — York's case, 9 Metcalf, 93; 3 Green. Ev. §14. Judgment affirmed. POINT m. THE STATE. [INDICTMENT FOR LARCENY IN DWELLING-HOUSE.] 1. Variance in name of owner of stolen goods. — Where the indictment alleged the stolen goods to he the property of Juli Antoine, while the proof showed that they belonged to a Frenchman, whose name was Juli Antoine in French, and who was ''generally called as if his name was spelled Julee Antoine, "—held, that there was no vari- ance or misnomer. 2. What constitutes larceny in dwelling-house. — Under section 3170 of t^e Code, unlike the penal code of 1841, (Clay's Digest, 425, \ 55,) OF ALABAMA. 55 Point v. The State. ;i person may be convicted of larceny in a dwelling-house, although he was in the house, at the time of the theft, by the invitation of the owner. From the City Court of Mobile. Tried before the Hon. Henry Chamberlain. The indictment in this case charged, that the prisoner, John Point, "feloniously took and carried away from. a dwelling-house a coat, of the value of ten dollars, and a pair of pantaloons, of the value of five dollars, the per- sonal property of Juli Antoine." The evidence adduced on the trial, and the charges of the court to the jury, are thus stated in the bill of exceptions: "The State introduced a witness, who testified as fol- lows: 'In October, 1860, about a week before the finding of the indictment in this case, the prisoner came to him, with a cloth coat, a pair of military pantaloons, and a military coat, (the two last being identical with those of the first sergeant of the ' Guards LaFayette,' a vol- unteer military company in the city of Mobile, of which company witness was then the first lieutenant,) and wanted to sell them to him, and told him that they had been given to him by a Mr. Clebert, of New Orleans. Witness told him, that he did not wish to buy them ; and the. prisoner then appealed to him. as a favor, to advance him ten dollars on the goods, and take and sell them for hi in. Witness gave the prisoner the money, and took the, goods to sell; but, after the prisoner left, he went to 'the first sergeant of said company, and brought him to his store; and said sergeant identified and claimed said goods as his own. Said sergeant's name is Juli Antoine, as spelled in the French language ; he is a Frenchman by birth, and so is witness; he is generally called as if his name was spelled Julee Antoine, but is called in French Juli Antoine, as pronounced in the French language.' The .State then introduced Juli Antoine as a witness,"wlio testified, that the prisoner came to him, a short time before the finding of the indictment, said that he was a stranger in Mobile, without the mcaii3 to 56 SUPREME COURT ; Point v. The State. provide a home, and asked his hospitality ; that he told the prisoner, he would give or afford him a lodging, if he would occupy the same bed with himself in the house where he lodged; that the prisoner consented to this, and slept with him that night, (which Was Thursday,) and the thr^e following nights ; that the said stolen goods were in his trunk, in his said bed-room; that they were in his trunk on Sunday, and he missed them the next day; that he found them at the store of the witness Fitchell, aud was positive as to their identity, and also as to the iden- tity of the prisoner ; that the cloth coat wa3 worth about four dollars, the military coat about ten dollars, and the pantaloons about five dollars; that the military clothes were a part of his sergeant's uniform ; and that he occu- pied and slept in said room, and had done so for several years. Another witness corroborated the above testi- mony. "The court charged the jury, among other things, 'that there was no misnomer or variance in Antoine's christian name — that it could be spelled Jule as well as Juli.' The prisoner excepted to this charge, and request- ed the cotirt to instruct the jury as follows: 'If the jury believe that the prisoner, by the permission of Juli An- toine, occupied the same room for three days, aud, at the time said occupancy commenced, had formed no inten- ■ tion to commit any offense, and that the goods were stolen by him during such occupancy — then he would not beguilty as charged in the indictment, but would be guilty of petit larceuy.' The court refused to give this charge, 1 and the prisoner excepted." STONE, J.— [March 2, 1861.]— We are not able to perceive any misnomer in the present case. The pro- nunciation of the two names is substantially the same, and we think the doctrine of idem sonans must be held to apply.' -Petrie v. Wood worth, 3 Caiues' Rep. 219; Aaron v. The State, at the present term ; Whar. Am. Cr. Law, § 258, and authorities cited. [2.] The question, whether or not the alleged larceny OF ALABAMA. 57 Point v. The Slate. was committed iu a dwelling-house, is not presented by the present record. We are not informed that the bill of exceptions contains all the evidence; and that which is set out, tends to prove, that the present building was ap- plied to some of the uses to which dwelling-houses are applied. Whether a room, occupied only as a sleeping apartment, is a "dwelling-house," within section 3170 of the Code, we need not inquire, as that question is not presented by the record before us. Section 3170 of the Code is a clear departure from our old statute, which was construed in Chambers' case, 6 Ala. 855. ' Its language is, "any person, who commits larceny in any dwelling-house, store-house," &c. — Code, § 3170. Under this statute, it is manifest that a person, who is in a dwelling-house by invitation, may therein commit the offense which it was designed to punish. The provisions of this section are very much like those of 12 Anne, (2 East's Cr. Law, 644,) under which it was ruled, that "the property stolen must be such as is usu- ally under the protection of the house." This clearly indicate?) what the legislature deemed the aggravating feature of the statute. It is not the fact that a dwelling- house is broken or entered, which constitutes the statu- tory crime. The sanctity which the place throws over property which is under its protection, magnifies the offense, and constitutes it a felony, irrespective of the value of the property stolen. — 2 East's Cr. Law, 644-5; Rex v. Taylor, 1 Russ. & Ry. 417. The charge asked was properly refused, and the judg- ment of the city court is affirmed. ». * 58 SUPREME COURT Thompson v. The Stale. THOMPSON vs. THE STATE. [indictment for retailing spirituous liquors.] 1. Removal of licensed retailer from county; liability of agent. — The* mere removal of a licensed retailer to another county, neither ab- rogates his license, nor renders his clerk or agent, who continues to carry on his business, subject to an indictment under the statute. From the City Court of Mobile. Tried before the Hon. Alex. McKinstry. The indictment in this case was in the form prescribed by section 1059 of the Code. On the trial, as appears from the bill of exceptions, the State proved, that the defendant sold spirituous liquors, at the bar of the City Hotel in Mobile, within the time covered by the indict- ment. The defendant then proved, that the bar belonged to one Steadman, who had removed from Mobile to Clai- borne; that he acted simply as the agent of Steadman, under a written power of attorney, and carried on the business in Steadman's name; and that Steadman, at the time of his removal from the county, and while the de- fendant sold liquors at his bar, had a regular lk'.euse from the probate judge of Mobile. The license and the power of attorney were both produced and proved. On these facts, the court charged the jury, "that a man could not, by means of a clerk or agent, carry on a bar in one coun- ty, while he lived in another county; that the privilege of retailing was a personal trust: that the party licensed to retail, must reside at the place of his busiuess, and give his personal supervision over his bar, although an occasional absence was allowable; and that if they be- lieved [the defendant sold spirituous liquors in Mobile, and that Steadman resided in another county, they must OF ALABAMA. 59 Cawley v. The State. find the defendant guilty." To this the defendant ex- cepted. William Boyles, and J. II. Smoot, for the defendant. M. A. Baldwin, Attorney-General, contra. R. W. WALKER, J.— [March 2, 1861.]— The charge of the court asserts the proposition, that a licensed re- tailer must reside at his place of business, and give his personal supervision over his bar; and that if, after ob- taining the license, he removes to, and resides in another county, his license is therebj r so far annulled, that it af- fords no protection to the clerk or agent employed by him to conduct the business after his removal. We do not think that this is the law. Whether a license to retail can be properly granted to one who does not, at the time it is issued, reside in the county to which the license refers, is a question not now presented, and we express no opinion in regard to it. But, where such license has been issued, to one who is at the time a resident of the county, we do not think it can be asserted, as matter of law, that the mere removal of the party to another county, abrogates the license, or destroys the right which he had before his removal, to exercise the privilege conferred by the license, by his clerk or agent. See Long v. State, 27 Ala. 36. Judgment reversed, and cause remanded. CAWLEY vs. THE STATE. [indictment for lakceny.] 1. Regularity of proceedings presumed, against irregularities of minute- entries in transcript. — The appellate court will not presume that the prisoner was tried and sentenced without an indictment, simply 60 SUPREME COURT Cawley v. The State. because the several minute-entries, showing the trial, conviction and sentence, are copied into the transcript before the indict- ment. 2. Joinder of offenses in indictment. — Two offenses, of the same gen- eral nature, and belonging to the same family of crimes, may be charged, in different counts, in the same indictment, where the mode of trial and the nature of the punishment are the same. 3. Sufficiency of verdict. — A general verdict of guilty, under an in- dictment charging two offenses, properly joined in different counts, is sufficient to authorize a judgment and sentence for the punishment prescribed for one of the offenses. From the Circuit Court of Dallas. Tried before the Hon. Porter King. The indictment in this case contained two counts; the first charging the prisoner with larceny from "a dwelling- house;" and the second, with larceny from "a shop." The jury returned a general verdict of guilty, and the court thereupon sentenced the prisoner to confinement in the penitentiary for three years. Before sentence Avas pronounced, the prisoner moved in arrest of judgment, "on the ground that there is a general verdict on two counts for separate and distinct offenses." The court overruled the motion, and the prisoner excepted. The several minute-entries, showing the trial, verdict, and judgment, are copied into the transcript before the in- dictment. Geo. W. Gayle, for the prisoner. M. A; Baldwin, Attorney-General, contra. A. J, WALKER, G. J.— [March 1, 1881,]— The first point made in this case is, that, as the sentence is copied into the transcript before the indictment, it must be in- ferred, that the sentence of the court preceded the find- ing of *the indictment; and that, therefore, the accused was tried and sentenced without an indictment. We cannot sustain this point. [2-3.] It is objected, that a general verdict of guilty is not sufficient* where distinct offenses, as those of lar- OF ALABAMA. G l Harrison v. The State. ceny from a dwelling-house and larceny from a sh«p, are alleged in different counts. After an elaborate and care- ful review of the authorities, we feel safe in announcing the conclusion, that "two offenses, committed bv the same person, may be included in the same indictment where they are of the same general nature, and belong * to- the same family of crimes, and where the mode of trial and nature of punishment are also the same-" and also, that a general verdict of guilty, where such offense are joined, is no ground for an arrest of judgment, or of error, whore the sentence pronounced does not impose a greater punishment than that prescribed for one offense Our conclusion is fully sustained by the authorities cited below—Johnson v. State, 29 Ala. 62; 1 Arch. Crirn. PI. 9o and notes; Whar. Am. Cr. Law, 422; TJ. S. v Peter- son, 1 W. & M. 305; State v. Ilaney, 2 K C Rep 390- 1 Arch Cr. Law, 175-6; Booth v. Common weath, 5 Met o3o; Carlton v. Com., ib. 532; Kane v. People, 8 Wend. 203; Mate y. Hooker, 17 Ver. 058; State v. Coleman, o Por. 32; State v. Alose, 35 Ala. 421. Judgment affirmed. HARRISON vs. THE STATE. [IXOICTUEST F0 ; { DISTURBAXCK OF PUBLIC WORSHIP.] I. What constitutes offense.-To constitute the statutory offense of dwturbxng rehgtou. worship, (Code J 3257.) the act nustbe.il, y or nUenUonallydone; it is „ ot suilicient that it was done lecklessly or carelessly. 2 \^ufrf- r7 T C fr Underan indict ™"t for disturbing reli- cs worship, the defendant has a right to adduce evidence of his good character ; but, until he has done so, the prosecution cannot prove 1ns bad character as a disturber of public worship. 3. Endence of other acts of di,turbance.-Kvidcnce of the fact that similar acts ot disturbance had been perpetrated by other persons 62 SUPREME COURT Harrison v. The State. in the same church, without objection or notice on the part of the members of the congregation, is irrelevant and inadmissible. From the Circuit Court of Lowndes. Tried before the Hon. John K. Henry. The indictment in this case alleged, that the defend- ant "willfully interrupted or disturbed an assemblage of people met for religious worship, by noise, profane dis- course, rude and iudeceut behaviour, or by fighting, at or near the place of worship." On the trial, fis appears from the bill of exceptions, the State proved the fact, that the congregation ol a church in Lowndes county, which had assembled for religious worship, on a particu- lar Sunday night, within the time covered by the indict- ment, had been disturbed*" by the loud and repeated slamming of the door by some person who was outside; and adduced some evidence tending to show that the defendant was the person who made the noise. "The State then put up one Davids as a witness, who testified, that he was not at the church on the night in question. The defendant's counsel asked said witness, without ob- jection, if he had not often seen the defendant in said church, and \f, on those occasions, the defendant had not conducted himself in an orderly and quiet manner; and the witness answered in the affirmative. The State then offered to prove by said witness, what the defendant's general character was in that respect. The defendant objected to this question; the court overruled the objec- tion, and permitted the witness to be examined in this respect; and the defendant excepted. The witness an- swered, that he did not know the defendant's general character." "The defendant proposed to prove by two of his wit- nesses, that they had often' opened the door of said church, looked in, and then shut the door, without any objection being made by any body;" also, "that it had been customary for many vears, for persons to go to the door of said church during religious services, open it and OF ALABAMA. 63 Harrison v. The State, look it, without going in, and then shut it; and that the members of the congregation of said church made no objection to this conduct on the part of the witnesses." The court excluded this evidence, and the defendant ex- cepted. The defendant also reserved an exception to the charge of the court, which is copied in the opinion, and, there- fore, does not need to be here repeated. Baine & XkS.mith, for the defendant. M. A. Baldwin, Attorney-General, contra. STONE, J.— [Feb. 1G, 1861.]— The defendant was in- dicted under section 3257 of the Code, which declares, that "any person, who willfully interrupts or disturbs ny assemblage of people met for religious worship, by icise, profane discourse," &c., is guilty of a misdemeanor. The court charged the jury, "that, if the defendant dis- turbed the congregation, when met for, or engaged in religious worship, either willfully or recklessly," then the case would be within the provisions of the statute. The word willful, when employed in penal enactments, has not always the same meaning. In this statute, it is used as the synonym of intentional, or designed— pursuant ioinicntion or design, without lawful excuse. — 1 Bish. Cr. Law, § 262; State v. Abram, 10 Ala. 928; also, McManus v. The State, 30 Ala. 285. The word reckless means "heed- less, careless, rash, indifferent to consequences." Now, one may be heedless, rash, or indifferent to results, with- out contemplating or intending those consequences. As a general rule, there is a wide difference between inten- tional acts, and those results which are the consequence of carelessness. While the question of the intention with which the act of disturbance was done, was one of inference or pre- sumption from all the circumstances, to be drawn by the jury, we do not think the statute was violated, if the dis- turbance was the consequence of an act which was simply reckless, or careless. To be guiltv, the defendant must 64 SUPREME COURT Huttenstein v. The State. have gone farther, and intentionally created the noise. If he intentionally did an act, or employed language, so near to the place where he knew a worshipping assembly was congregated, as that he must have known that such worshipping assembly would be disturbed by such actor language, then such act would be, in the eyes ot the law, a willful disturbance, unless some lawful excuse existed therefor. A worshipper in a church, discovering a build- ing on fire, would doubtless be justified in giving the alarm, although iu doing so he might disturb the as- sembly. Whether the noise disturbed the assembly, and, if so, whether the conduct of the defendant was such as to show that he intended to make that noise, were ques- tions for the jury, under appropriate instructions from the court.— See Ogletree v. The State, 28 Ala. 693. [2.] The defendant had the right to put in evidence his good character; but, until he did so, the prosecution was not authorized to prove his bad character as a dis- turber of religious assemblies. — 3 Greenl. Ev. § 25. [3.] Evidence that similar acts of disturbance had been perpetrated by others in that church, and had not been noticed, was irrelevant. Reversed and remanded. HUTTENSTEIN vs. THE STATE. [indictment for keeping restaurat without license.] 1. Sufficiency of indictment. — In an indictment for keeping a restaurat •without license, (Code, \\ 397, 399,) it is not necessary to allege that the defendant was engaged in the business of keeping a restaurat ; it is sufficient to allege that he " did keep a restaurat" without license. OF ALABAMA. 65 Ward v. The State. From the City Court of Mobile. Tried before the Hon. Henry Chamberlain. The indictment in this case charged, that the defend- ant 'did keep a restaurat, or eating-house, without a license, and contrary to law." The defendant moved to quash the indictment, and also demurred to it, on the ground that it did not sufficiently describe the offense. The court refused to quash, and overruled the demurrer; and the defendant reserve i exceptions to its decisions. Chandler & McKinstry, ior the defendant. M. A. Baldwin, Attorney-General, contra. A. J. WALKER, C. J.— [March 1, 1861.]— Section 399 of the Code is more comprehensive than the statutes under which the indictments in the cases of Petti bone v. State, (19 Ala. 586,) Eubanks v. State, (17 Ala. 181,) and Moore v. State, (16 Ala. 411,) were framed. The section of the Code referred to is not confined to the engaging in a business or employment, but extends to the doing of any act, without; first obtaining a license, for which a license is required by the article in which the section is fourd. We think the motion to quash, and the demurrer in this case, were properly overruled. Judgment affirmed. WARD vs. THE STATE. [indictment for gaming with slave.] 1. What constitutes offense ; general charge on evidence. — To constitute the offense of playing cards with a slave or free negro, (Code, \ 3250,) a game must be entered upon, and some act done towards its completion, though it is not necessary that the game should be 66 SUPREME COURT Ward v. The State. played out; and wfiere the only evidence before the jury is, that the parties were seen seated on opposite sides of a box, each with four or five cards in his hands, while the rest of the pack lay within their reach, with the top card turned face upwards, and that they immediately bunched the cards, on seeing the witness, and eaid that the slave was telling the defendant's fortune, — a charge to the jury, instructing them that, " if they believed the evidence, they must find the defendant guilty," is an invasion of their province. From the Circuit Court of Dale. Tried before the Hon. John Gill Shorter. TnE indictment in this case charged, "that Redding Ward, a whit© person, did play at cards with a slave named Cain, the property of Dempsey Dowling." "On the trial," as the bill of exceptions states, "the State introduced a witness, who testified, in substance, that, within twelve months next before the finding of the indictment iu this case, he went to a mill in said county, belonging to Mr. Dempsey Dowling, and there found the defendant and a slave, named Cain, who belonged to said Dowling; that they were seated at a box, the defen- dant on one side, and the slave on the opposite vside ; that the box had a handkerchief spread over it; that he saw four, five, or more cards in the slave's hands, and about the same number in the defendant's hands, while the balance of the pack was lying within reach of them, with a face-card on top, which had the face turned upwards; that he saw no money, or anything else, at stake; that the defendant and the slave, as soon as they saw him, bunched all the cards together, and the defendant re- marked, 'that the slave was telling his fortune;' that after the cards were so bunched, or thrown together, the defendant told the slave to mark one of the cards on the back, and he could tell it by its face; that the slave marked one of them with his thumb-nail, (the defendant not seeing which one he marked,) aud, after shuffling them, handed the cards to the defendant; and that the slave then told the defendant to mark aud shuffle the cards for him in like manner. The witness further stated, OF ALABAMA. 67 Ward v. The State. that this sort of playing, or use of the cards, was all that he saw done by the defendant and the slave, except as above stated ; and that the slave professed to be a for- tune-teller, and was so reputed in the neighborhood. This being all the evidence, the court charged the jury, 'that, if they believed the evidence, they must find the defendant guilty, and assess a fine against him of not less than fifty dollars;' to which charge the defendant ex- cepted." Pugii & Bullock, for the prisoner. M. A. Baldwin, Attorney-General, contra. STONE, J.— [Feb. 15, 1861.]— The defendant was in- dicted under section 3256 of the Code, which is in the following language: "Any white person, who plays at cards with any slave or free negro, must, on conviction, be fined," &c. We think that, to come within this sec- tion, a game must be entered upon, and some act done towards its completion. Amusing one's self with cards, as with toys, will not make out the offense. It is not necessary, however, that the game shall be completely played out. If the game be in part entered upon, the statute is violated. Coggins v. The State, 7 Porter, 264; Holland v. The State, 3 Por. 292; Cochran v. The State, 30 Ala. 542; Webster's Dictionary, "To play." The testimony recited in the bill of exceptions, shows that the defendant and the slave were seated on opposite sides of a box, each holding in his hand four, five, or more cards, — while beside them lay the pack, with the top card face-upwards. On seeing the witness, the de- fendant and the slave bunched the cards, and some ex- pressions were indulged as to fortune-telling. This was all the evidence tending to prove the defendant's guilt. We concede, that these circumstances may have been strong, and from them the jury may have inferred that the parties had seated themselves to play at cards, and had so far entered upon the game as to deal out hands and turn up a trump; yet, in order to establish the de- 68 SUPREME COURT Maull v. The State. fendant's guilt, it was necessary that the jury should find a further fact or facts than were positively sworn to by the witness. Such further fact or facts, the law, unas- sisted by a jury, could not infer. We think the court, in its charge, invaded the province of the jury. — Ogletree v; The State, 28 Ala. 700; Scitz v. The State, 23 Ala. 42 ; Morgan v. The State, 33 Ala. 413; 1 Bish Cr. Law. § 251. Reversed and remanded. MAULL ps. THE STATE. [indictment for living in adulterv.] 1. Sufficiency of indictment. — An indictment, charging that a man and a woman ''did live in a state of adultery or fornication," but not stating that they thus lived with each other, nor otherwise showing that they were guilty of a joint offense, is dem urrable for du- plicity. From the Circuit Court of Jefferson, on change of venue from Blount. Tried before the Hon. Wm, S. Mudd. The indictment in this case charged, "that John Maull, a man, and Mary Johnson, a woman, did live in a state of adultery or fornication, against the peace and dignity of the State," &c. The prisoners demurred to the in- dictment, " because it did not charge that they lived to- gether, or with each other, in a state of adultery or fornication;" but the court overruled the demurrer. Watts, Judge & Jackson, for the prisoner, cited Moore v. The Commonwealth, 6 Metcalf, 243. M. A. Baldwin, Attorney-General, contra. OF ALABAMA. 69 McGnire v. The State. A.J. WALKER, C. J.— [Jan. 22, 1861.]— The offenses charged to have been committed by the defendants, do not appear from the indictment to have been perpetrated by any joint act; but, for aught disclosed, may have been altogether distinct, neither defendant participating in the criminal act of the other. For this reason, the indictment was demurrable for duplicity. — Shaw v. State, 18 Ala. 547. The judgment of the court below is reversed, and the cause remanded. McGUIKE vs. THE STATE. [indictment FOR FORGERY.] 1, Oath of petit jury. — Tf the jury, in a criminal case, are sworn "well and truly to try the issue joined," this is a substantial com- pliance with the requisition of the statute. (Code, \ 347M,) and is sufficient. 2, Conclusion of indictment. — If an indictment concludes '• against the peace and dignity of the State of Alabama," it is not necessary that each count in it should so conclude. 8. {Sufficiency of indictment in description of forged instrument. — ''An instrument of writing, purporting to be an order, drawn by Sister Adeline, on George Battiste, for nine dollars," — is a sufficient de- scrip'ion, in an indictment, of the instrument alleged to have been forged. 4. Sufficiency of indictment, in statement of time. — In an indictment under the Code, it is not necessary to state the time when an offense was committed, or to allege that it was done before the finding of the indictment. 5. Abstract charge. — An abstract charge, or one which is not shown by the record to have been predicated on some evidence before the jury, is properly refused. 6. What constitutes forgery. — Under an indictment for forgery, a con- viction may be had on proof that the prisoner, with intent to de- TO SUPREME COURT __________ McGuire v. The State. fraud, uttered and published as true a forged instrument, knowing it to be forged. From the City Court of Mobile. Tried before the Hon. Alex. McKinstry. The indictment in this case was in these words: "The grand jury of said county charge, that, before the finding of this indictment, John McGuire forged an instrument of writing, purporting to be an order, drawn by Sister Adeline, on George Battiste, for nine dollars, with intent to defraud. The grand jurors further charge, that John McGuire forged an order for money, in words and substance as follows: 'Mr.- George Battiste will please pay to Mr. McGuire nine dollars, by order of Sister Adeline,' with intent to defraud; against the peace and dignity of the State of Alabama." The defendant demurred to the indictment, and as- signed the following grouuds of demurrer: "To the first count, because it does not set out the tenor or substance of the instrument charged to have been forged, nor does it show an} 7 reason for not so setting out said instrument; and because it does not conclude, 'against the peace and dignity of the State of Alabama;' and to the second count, because it does not allege or name any day or time when the said oflense was commuted." The court over- ruled the demurrer, and the defendant excepted. "On the trial," as the bill of exceptions states, "there was some evidence tending to show that the forged in- strument was in the words in which it was described in the indictment. There was some evidence, also, tending to show thajt the defendant went to George Battiste, to get the money of John Martin; that Battiste told him he must get an order from the head sister of the 'Sisters' Hospital,' before he could get it; that the defendant went away, and came back with such an order, and 'an order for nine dollars, signed 'Sister Adeline,' and got the money for the latter order. The prosecuting attorney asked a witness, if there was a person in the 'Sisters' OF ALABAMA. 71 McGuire v. The State. Hospital' by the name of 'Sister Adeline.' To this ques- tion the defendant objected, and reserved an exception to the overruling of his objection." "The defendant asked the court to give the following charges: '1. If the jury believe that Sister Adeline is a fictitious name, they cannot find the defendant guilty of forgery.' '2. They cannot find the defendant guilty, un- less it was proved that he wrote the order in Mobile countv.' The court refused these charges, and the de- fendant excepted to their refusal." The judgment-entry recites, that the jury were sworn "well and truly to try the issue joined;" and that their verdict was, "guilty of forgery in the second degree." Ben Lane Posey, for the prisoner. M. A. Baldwin, Attorney-General, contra. STONE, J.— [Feb. 28, 1861.]— The oath administered to the jury in this case was sufficient. — Crist v. The State, 21 Ala. 137; Pile v. The State, 5 Ala. 12. [2.] The indictment concludes, "against the pence and dignity of the State of Alabama," and that is sufficient. Cons. Ala., art. 5, sec. 17. [3-4.] Each count in the indictment is sufficient. Code, §& 3158-65 ; Code, 703. [5.] There is no evidence in the record that Sister Ade- line was a fictitious person ; and therefore, the first charge asked was abstract, so far as we can discover. There was no error iu refusing it. [6.] The second charge asked, should not have been given. It demanded an acquittal, if the evidence failed to prove that the order was written by the defendant iu Mobile county. If the proof showed that the prisoner, in Mobile county, uttered and published the order as true, knowing it to be forged, and with intent to defraud, the law requires that he should be adjudged guilty of the forgery of the instrument. The charge restricted the right to convict within too narrow bounds, and was 72 SUPREME COURT Johnson v. The State. rightly refused.— Code, § 3165; Thompson v. The State, 30 Ala. 28 ; Bishop v. The State, ib. 34. Judgment of the city court affirmed, and its sentence to be executed. JOHNSON vs. THE STATE. [indictment for willful or malicious mischief.] 1. Constituents of offense. — Malice is a necessary ingredient of the offense denounced hy section 3114 of the Code; but, under section 3115, if the act is either willful or malicious, the offense is com- plete 2. Whep witness may give opinion as to value of animal. — Under an in- dictment for willfully or maliciously shooting a mule, a witness who was acquainted with the mule both before and after the infliction of the injury, but who has no skill in veterinary or medical science, may state his opinion as to the extent of d image caused by the wound From the Circuit Court of Shelby. Tried before the Hon. Wm. S. Mudd. The indictment in this case contained two counts; the first charging, that the defendant, Martin Johnson, "will- fully or maliciously injured a mule of some value, belong- ing to William Richards;" and the second, that he "will- fully or maliciously disfigured a mule," &c. No objection was made to the indictment; and the only plea was not guilty. On the trial, as appears from the bill of excep- tions, "the State introduced proof tending to show that, within six months before the finding of the indictment, and in said county, the mule which was described in the indictment as the property of William Richards, received a gun-shot wound, which was inflicted by the defendant; " and there was evidence tending to show that said mule OF ALABAMA. 73 Johnson v. The State. was the property of said Richards. "One McClellan, a witness for the State, who was a farmer, testified, that he had raised, bought and sold horses and mules, and always judged for himself, and did his own trading in such things, although he had no skill in veterinary science, and had never treated medically a gun-shot wound; that he was well acquainted with said mule, be- fore and at the time it was shot, as well as since that time; that he examined the wound the day the mule was shot, when it was fresh, and had examined it after it healed; that the wound was in the shoulder, and the shoulder had thereby become enlarged; that the mule was worth one hundred and fifty dollars before it was shot, and that, in his opinion, the damage or injury done to the mule by the wound was fifty dollars. The defendant ob- jected to the witness giving his opinion, as to the damage or injury done to the mule by the said wound; but the court overruled the objection, and permitted the evidence to go to the jury; to which the defendant excepted." The court charged the jury, among other things, " that it was not necessary for the State to prove, that the defend- ant, if he shot the mule, was actuated by malice, either towards the* mule, or towards its owner;" to which charge also, the defendant reserved an exception. The several rulings of the court to which exceptions were reserved, are now assigned as error. IIkflix, Martin & Forney, for the defendant, cited the following cases: The State v. Pierce, 7 Ala. 728; M. & \V. P. Railroad Co. v. Varner, 19 Ala. 185; Nor- man v. Wells, 17 Wendell, 136. M. A. Baldwin, Attorney-General, contra. A. J. WALKER, C. J.— [July 18, 1861.]— The statute under which the defendant was indicted, is in the follow- ing words: "Any person, who willfully or maliciously injures or disfigures any horse, mare, gelding, colt, filly, ass, or mule, the property of another, must, on conviction, be fined not less than five times the amount of the injury 6 74 SUPREME COURT Johnson v. The State. done, and may be imprisoned not more than six months." Code, § ?115. The indictment is not framed under sec- tion 3114, which prescribes the punishment of a person "who unlawfully and maliciously kills or disables any ani- mal belonging to another, or unlawfully and maliciously injures or destroys any article or commodity of value, the property of another."— Code, § 3114. An obvious difference between the two sections is, that under the former, willfulness or malice, characterizing the specified act, is sufficient to constitute the offense; while under the latter, unlawfulness and malice are necessary ingre- dients of the offense. A like difference exist3, between the statute under which the indictment in this case was framed, and the statute which was construed in State v. Pierce, 7 Ala. 728.-Clay's Digest, 417, § 5. This last-named statute expressly required, that the act should be unlaw- ful, willful, and malicious; audit was in reference to that statute, that the court, in arguing the question before it. declared malice against the owner of the animal to be an essential element of the offense. That dictum, made in aroruins: the construction of such a statute, is entitled to no influence upon the question presented in this case. Under the statute now under consideration, the willful performance of the specified acts, as well as the malicious performance of them, constitutes the offense. It was, therefore, proper for the court to charge the jury, _ that proof of malice towards the mule or its owner was not indispensable. [2.] We think the court below committed no error, in permitting the State to prove that the damage or injury done to the mule was fifty dollars. Considering this evi- dence in connection with the evidence which precedes it, we understand it to amount to nothing more than the expression of the opinion of the witness, that the value of the mule was diminished fifty dollars by the injury done to it. It is but a comparison of the value before and after the injury; and such a comparison it was cer- tainly competent for the witness to make. — Ward v. Reynolds, 32 Ala. 385. We do not think the question OF ALABAMA. 75 Schwartz v. The State. decided in the M. & W. R. R. Co. v. Varner, (19 Ala. 185,) at all analogous to that presented in this case. Affirmed. SCHWARTZ vs. THE STATE. [INDICTMENT FOK PUBLIC NUiSANCE.] 1. Sufficiency of indictment,— An indictment under the act of 1858, " to prevent nuisances and illegal trafficking with slaves," (g< Acts 1857-8, p. 285,) which charges that the defendant '• kept, or was engaged in the keeping of, a puhlic nuisance, by having per- mitted slaves, or free persons of color, habitually to visit, assemble, stop at, or loiter about, the house or premises kept or occupied by him, ' — is sufficient, being in the form authorized by the third section of the act, and is not violative of any constitutional pro- vision. 2. What constitutes offense, — To authorize a conviction under this stat- ute, although it is necessary that three respectable witn sses for the State shall testify that the general reputation of the defen'd- dant, or that of his house, " as to trading or traffickir. : itle with slaves," is bad, it is not necessary that the jury should find that fact to be proved; nor is it necessary for tbe State to prove the defendant's permission or consent that slaves, &c, shoi»ld viBit or loiter about his premises ; nor it is necessary that the defendant should be a licensed retailer. From the Circuit Court of Montgomery. Tried before the lion. S. D. Hale. Tub indictment in this case was founded upon the act of February 6, 1858, entitled "An act to prevent nui- sances and illegal trafficking with slaves," which is iji the following words: "Section 1. Be it enacted " &c, "That the keeping of every house in this State, where spirituous liquors are sold, retailed, or given away, and which slaves or 76 SUPREME COURT ■_ Schwartz v. The State. persons of color habitually visit, assemble, or stop at, or loiter about, is hereby declared to be a public nuisance; provided, the general reputation of such house, or of the keepers thereof, as to trading or trafficking with slaves, is bad. "Section 2. J5e.it further enacted, That every person ■who keeps, or engages in the keeping of any such house, ahall be liable to indictment therefor, and, upon convic- tion thereof, shall be fined for the first offense in any sum the jury trying the case may assess, not less than fifty- dollars, nor mo/e than two Jiundred dollars; and for the second, and every subsequent offense, shall be fined not less than two hundred dollars, nor more than one thou- sand dollars, and be imprisoned in the common jail of the county, not less than ten days, nor more than six months, one or both, in the discretion of the jury trying the offense; provided, the person so convicted the second time for the same offeuse, shall not have license granted hi ni or her again in the same county. "Section 8 Be it further enacted, That in all prosecu- tions under this act, it shall be sufficient for the indict- ment to state, that the defendant, before the finding of the indictment, kept, or was engaged in the keeping of a jmMic nuisance, by having permitted slaves, or free per- a> ms of color, habitually to visit, assemble, or stop at, or loiter about, the house or premises kept or occupied by the defendant. "Section 4. Be it farther enacted, That before any con- viction can be had in any prosecution under this act, it shall be incumbent on the State to prove, by three or more respectable witnesses, that the general reputation of the house, or of the keeper thereof, for the keeping of which the indictment is found, as to trading or trafficking illegally with slaves, is bad." — Session Acts, 1857-8, p. 285. The indictment charged, "that Peter Schwartz, before the finding of this indictment, kept, or was engaged in the keeping of a public nuisance, by having permitted slaves, or free persons of color, habitually to visit, assem- OF ALABAMA. 77 Schwartz v. The State. ble, stop at, or loiter about, the house or premises kept or occupied by said defendant; against the peace and dignity," &c. After conviction, the defendant moved in arrest of judgment, "for matters apparent upon the in- dictment;" but his motion was overruled. "On the trial," as the bill of exceptions states, "the State gave in evidence that the defendant kept a grocery- store in the city of Montgomery, on the 1st April, 1858, and had been keeping it since the 6th February, 1858 ; and that gangs of negroes, from three to twenty in iiimi- ber, were frequently seen, between those periods, in front of his store, and on the side-walk at the corner of the street where his shop was. One witness testified to the fact, that liquor was kept in the store; but he could not remember having seen any sold there, previous to the finding of the indictment. Another witness testified, that he saw the defendant sell bottles of brandy in Janu- ary, 1858, but never since. The State also gave in evi- dence, that the reputation of the house, and of the de- fendant, for trading with slaves, was bad; five witnesses testified to that fact. The defendant then gave in evi- dence, that he kept a grocery for the sale of family gro- ceries: and several witnesses testified, that they had bought all their family supplies from him during that period, and visited his store to do so, and never sa\v a drop of liquor sold by him during that time. Five wit- nesses testified, that his (?) general character of his house, as to trading with slaves, was good ; and one witness testified, that he had twice seen the defendant try to drive the negroes away from the corner where his store was, and had heard him say to them, at the same time, that they had no business there. One witness for the defendant testified, that he was a near neighbor of the defendant, and had been living on the square adjoining the defendant for a long time, both before and after the time charged in the indictment, and was well acquainted with him and his neighbors, and knew his general char- acter; but he could not say that he knew his general character, or that of his house, for trading or trafficking 78 SUPREME COURT Schwartz v. The State. illegally with slaves; but he had heard the neighbors generally repeatedly speak of the defendant, and never heard a word said by any of them about his trading or traf- ficking with slaves in any way. On molion of the State, the court excluded the words'" which are italicised; "and the defendant excepted. There was no evidence whether the negroes seen at or near the defendant's shop, as above stated, were slaves or free persons of color ; nor were their names given, or any description or identification of them. "This being all the evidence, the court charged the jury, that if they believed, from the evidence, that the defendant had a house where liquor was sold; and that gangs of negroes had habitually loitered about his prem- ises ; and that all the loitering about his premises con- sisted in negroes being on the public side-walk in the street, and on the corner of the street, where the defen- dant kept his store ; and that the general reputation of the defendant and his house, between the 6th February, 1858, and the finding of the indictment, for trading with slaves, was bad, and had been testified to by three res- pectable witnesses, — then he was guilty under the indict- ment. "The court further charged the jury, that if they be- lieved, from the evidence, that gangs of negroes, from three to twenty in number, had been in the habit of standing about on the side-walk in the street, and at the corner of the street, between the 6th February, 1858, and the finding of the indictment, — then this was such a loitering about the defendant's premises as was contem- plated by the statute, even if it had not been established by evidence that it was done by his consent or permis- sion. "The defendant excepted to each of these charges, and requested the court to instruct the jury, (1st,) 'that unless the negroes who were in the habit of standing on the side-walk at the corner of the street, where the defen- dant's store was, did so by the consent, permission, or approbation, of the defendant, they cannot find him OF ALABAMA. 79 Schwartz v. The State. guilty;' (2d,) 'that if the only evidence before them, to establish that the general character of the defendant or his house was. bad, was, that it was bad as to trading with slaves, this is not sufficient, unless they find and believe, from the evidence, that he had traded illegally with slaves.' The court refused both of these charges, and the defendant excepted to their refusal." Jno. A. Elmore, for the prisoner. M. A. Baldwin, Attorney-General, contra. STONE, J.— [April 1, 1861.]— The statute which we arc to construe in this case, had for its object the correc- tion of an evil which exists in every slaveholding commu- nity, namely, illegal traffick with slaves. The arts and devices of petty traders have generally been such as to elude our penal enactments; and, consequent!} 7 , slaves have continued to be demoralized, by having held out to them incentives to theft, that they may thereby procure the means of gratifying a corrupted and corrupting ap- petite. The object of the present enactment was, to reach and prevent the offense, which can rarely be proved because of its secrec.3 7 , by seizing upon and punishing another offense against the good government and well- being of slaves, which usually attends upon and evidences the more grievous offense. The statute, though well conceived to carry out the object of the legislature, is, nevertheless, not expressed with such precision as to leave no doubt or difficulty in its exposition. — See i'amph. Acts, 1857-8, p. 285. The first, third, and fourth sections, are those which create the difficulty. The first section defines the offense ; the third relates to the indictment; and the fourth, to the proof. The language of the several sections is variant. Section 1 declares, "that the keeping of every house in this State, where spirituous liquors are sold, retailed, or given away, and which slaves or free persons persons of color habitu- ally visit, assemble, or stop at, or loiter about, is hereby declared to be a public nuisance; provided, the general 80 SUPREME COURT Schwarte v. The State. reputation of such house, or of the keepers thereof, as to trading or trafficking with slaves, is bad." Section 3 provides, "that, in all prosecutions under this act, it shall be sufficient for the indictment to state, that the defen- dant, before the finding of the indictment, kept, or was engaged in the keeping of a public nuisance, by having permitted slaves or free "persons of color habitually to visit, assemble, or stop at, or loiter about, the house or premises kept or occupied by the defendant." The indictment in this case pursues section 3j and con- tains nothing beyond its specified requirements. It is urged for the defendant, that' this indictment does not conform to the bill of rights, because it fails to set forth "the nature and cause of the accusation." — Bill of rights, § 10; Code, p. 30. A further objection urged against it is, that it is not framed according to the forms which the law has prescribed. We have duly considered these ob- jections, and it is our opinion, that they are not well taken. This statute is a public one, and all men are charged with a knowledge of its contents. — Erwin v. Hamner, 27 Ala. 29G. All men, in reading an indictment framed under the third section, are reasonably informed that the indictment charges the offense denounced by the first section. In fact, it may admit of question, if such is not the result of the legal intendment, which presumes that every one knows the law. Be this as it may, enough is stated in the indictment to inform the defendant of the nature and cause of the accusation. The non-professional reader will be better informed of the nature and cause of the accusation by the simple statement found in this re- cord, than he would be by the technical verbosity which prevailed a century ago. Nor is this a new question in this court. Several of the Code forms of indictments are defective, under the argu- ment made in this case ; for they omit to aver many facts, which are necessary to be proved to insure a conviction. Many of them aver facts disjunctively, and all of them omit all mention of the county in which the offense was committed.— See Code, §§ 3244, 3506, 3507; also, forms OF ALABAMA. 81 Schwartz v. The State. Nos. 7, 26, 29, 31, 33, 66, 67, 68, 71, 74, &c. These forms we have invariably held sufficient. — See the authorities collected, Shep. Dig. 71-2. In Noles v. The State, (24 Ala. 672.) our predecessors ruled, that the constitu- tion does not inhibit the legislature from introducing forms of indictment, variant from those of the common law. Thej further ruled^that, if the form of indictment prescribed by the statute contain such an accusation at the suit of the State, found by a grand jury, as furnishes to the accused reasonable information of what he is called on to answer, by. setting forth the constituent elements of the offense, it will be sufficient, although it may omit man}' averments that were necessary at common law. The indictment in this case is in the form which the law has prescribed, and, under the rules above declared, it is sufficient. The fourth section of the act under which the defen- dant was tried, is in the following language: "Before any conviction can be had in any prosecution under this act, it shall be incumbent on the State to prove, by three or more respectable witnesses, that the general reputation of the house, or the keeper thereof, for the keeping of which the indictment is found, as to trading or traf- ficking illegally with slaves, is bad." On a compari- son of the sections 1, 3, and 4 of this statute, it will be discovered that each is different from the others". Section 1 declares, that certain elements shall consti- tute a public nuisance; section 3 relates to the indict- ment; and section 4 declares, that certain proof shall be made before a conviction can be had. Section 3 omits all mention of many of the ingredients of the offense, as found in section 1 ; while section 4, in speak- ing of the proof to be made, contains the word illegally, which is not found in section 1. Now, we think these difficulties vanish, when we consider the purpose for which each separate section appears to have been inserted. Section 1 defines the offense, and its constituent ele- ments: section 3 declares what shall be a sufficient in- dictment; and section 4 requires, that certain proof shall 82 SUPREME COURT Schwartz v. The State. be made, preliminary to a conviction. The first declares what shall be found by the jury; the third, what shall be alleged by the pleader; and the fourth, what shall be deposed to by three or more respectable witnesses. To allow section 4, which relates to the testimony, to enlarge the constituent elements of the offense which section 1 defines, would seem to be as illogical, as to allow sec- tion 3, which defines the indictment, to restrict those constituent elements. If it be asked, why require the witnesses to testify that the character for trafficking illegally with slaves is bad, if that be not one of the facta to be found by the jury; — we answer, it was certainly within the power of the legislature to make such a rule, and it is not for us to question the exercise- of that power. The offense is com- plete, under section 1, \f on\y free persons of color habitu- ally visit, assemble, or stop at, or loiter about, a house of the kind mentioned in the statute, provided the general reputation of such house or the keeper thereof, as to trading or trafficking with slaves, is bad. It is not com- plete, if slaves habitually visit, assemble, &c, at such house, unless the reputation of the house or its keeper, for trading or trafficking with slaves, is bad. In Jordan v. Oweu, (27 Ala. 152,) we decided, that a plaintiff', testifying in his own case to an indebtedness to nim, must go farther, and swear that the debt is unpaid. Yet no one would contend, that, in such case, the charge of the court should authorize that body to find against the plaintiff, if he had not satisfied them that the debt was not paid. The proof, in such case, getting before the jury, if the plaintiff make out a prima-facie case of indebt- edness, the onus of showing' a payment would, in the case supposed, as in all other cases, rest on the defendant* JEi incumbit jirobatio, qui dicit. The testimony in such case, to be legal, must contain positive and negative aver- ments; while the finding of the jury need only respond affirmatively. A fair illustration of the argument we are making, may be seen in the following supposed case. It-is sai^ OF ALABAMA. 83 Schwartz v. The State. to be a rule of the common law, not to convict of mur- der, unless the dead bodyjias been found. Now, suppose an act of the legislature should declare, that no convic- tion for murder should be had, unless three respectable witnesses should testify that they had seen the dead body. On a trial, three respectable witnesses testify as the stat- ute requires; but the juiy are convinced that one of the witnesses is mistaken, and that in fact he never saw the dead body. Still the jury are convinced, beyond reason- able doubt, that the prisoner had committed the offense charged. Would any one contend, that, under the influ- ence of such supposed statute, the prisoner should be acquitted? So, uAder this statute, we hold, that section 4 is not iutroductive df. any new fact to be found by the jury; but that, out of abundant caution, its purpose was to screen the defendant from conviction, save on the tes- timony of three or more respectable witnesses on the question of character. It may be questioned, whether there can be such thing as general bad character or reputation for trading or traf- ficking with slaves, unless such trading or trafficking was illegal ; in other words, that a trader, who dealt with slaves legally, coujd not thereby acquire a bad reputation. In answer to this we say, the legislature have inserted the word illegally, in defining the measure of proof, and we prefer not to say they had no object in doing so. We hold, then, that the -testimony must conform to section four, but the finding need only respond to the require- ments of section one. The bill of exceptions in this case purports to set out ' all the evidence. Five wituesses testified, that the gen- eral reputation of the defendant, foiMrading or trafficking with slaves, was bad ; but no witness employed the word ilia/ally. In the first charge given to the jury, the circuit court, on this point, said, in effect, that if three respecta- ble witnesses had testified that the defendant's general reputation for trading or trafficking with slaves wag bad, this would meet the requirements oi the law. Thi« was an error. 84 SUPREME COURT Smith et al. v. The State. The second charge is, perhaps, obnoxious*to criticism, in this — that it does not sufficiently confine the assem- bling or loitering of the slaves, or free persons of color, to a place or places at or about the premises of the defen- dant. This will be remedied on another trial. It was not necessary that the State should prove affir- matively, that the defendant permitted, or consented, that slaves should visit, stop, or assemble at, or loiter about his premises. The police of his own premises was under his control, and it was both his privilege and duty to drive them away. If he did not do so^that provisiou of the statute was violated. It was not necessarv that the d.efefldant should have been a licensed retailer. If he -J^ept a house where spir- ituous liquors were, sold, retailed, or given away, that was sufficient. The- phrase, "shall not have a license granted to him or her again," is a verbal inaccuracy. Its mean- ing is afterwards, as^s shown by other provisions of the statute. What we have said will sufficiently guide the circuit court in another trial. Reversed and remanded. /• ( 4 SMITH BTAL.M. THE 'STATE. [INDICTMENT FOK OAMING.l >r 1. Conviction on testimony of accomplice. — Where a witness testifies, that he was present while the several defendants played a number of games with cards ; that at the request df one of the players, who did not understand the game well, he sat behind him, and from time to time, during the whole continuance of the games, instructed him how to play ; that he took a card, on one or two occasions, from the hand of said unskillful player, and threw it down on the table for him, and, on one occasion, during the mo- OF ALABAMA. 85 Smith et al. v. The State. inentary absence of said player, played one of his cards for him ; and that he was also engaged in reading a part of the time, — the court may refuse to instruct the jury, that said witness was an ac- complice, (Code I 3600,) and that a conviction could not be had on his uncorroborated testimony. 2. What const Hides public house. — A lawyer's office is a public house, within the prohibition of the statute against gaming, (Code, $3243,) and where it consists of two rooms, front and back, connected by a door, in each of which professional business is transacted, thd two rooms are eq ially within the statute. Apjeal from the Circuit Court of Choctaw. Tried before the Hon. A. A. Coleman. In this case, George Frank Smith, Marcellus A. Cole- man, M. VanCamp and Charles Hill were jointly in- dicted for gaming; the indictment being in the general form prescribed by the Code. " On the trial," as the bill of exceptions states, "the State introduced one Moody as a witness, who testified, that within twelve months be- fore the finding of the indictment, and in said county of Choctaw, the defendants played several games with cards, (called 'euchre,') in the law-office of George F. and G. Frank Smith, practicing attorneys; that, said office was situated on the street facing the public square in the town of Butler, iii which public square is the court-house; that there were two rooms in sahl office, with a door leading from one to the other; that the law-books of said attor- neys were kept in the front room, and business was done with the public in both rooms, but usually in the back room, where the writing-table of one of said attorneys was situated; that the playing was done in said back room; that the door between the two rooms and the windows were closed, and the back door could not be seen from the street; that witness, at the request of Charles Hill, who did not understand the game well, sat behind him, and, from time to time, instructed him how to play; that this information was given by him to said Iliil, from time to time, during the whole continuance of the games; that he took a card, on one or two occasions, 86 SUPREME COURT Smith et al. v. The State. from said Hill's hand, and threw it down on the table for him; that on one occasion, while said Hill was momen- tarily absent from the room, he took up his cards, and 'passed' for him, (which is a technical expression in the game,) and that he (witness) was also reading a medical book a part of the time the game was going on." This being all the evidence, the defendant requested the court to instruct the jury, 1st, "that the said witness was an accomplice, within the meaning of section 8G00 of the Code, and that a conviction could not be had on his tes- timony alone;" and, 2d, "that the house in which the playing took place, was not a public house within the meaning of section 3243 of the Code." The court re- fused these charges, .and the defendants excepted to their refusal. William Boyles, for the defendants. M. A. Baldwin, Attorney-General, contra. A. J. WALKER, C. J.— [June 20, 1861.]— The wit- ness only participated in the playing by aiding an unskill- ful player with his advice, and at one time doing some little acts, during a brief absence of such unskillful player, in his place. These acts were not of such charac- ter as necessarily to constitute the witness an accomplice, when he was not engaged in the performance of them. During a part of the playing, the witness was engaged in reading. While he was so engaged, it cannot be affirmed, as a legal conclusion, that he was either assisting in the game, or participating in it. The offense may have been complete, by what was done during the time occupied by the witness in reading.- — Swallow v. State, 20 Ala. 30; Cannon v. State, 15 ib. 383; Coggins v. State, 7 Porter, 263. The court was, therefore, not authorized to assume conclusively, that the witness was an accomplice at all the points of time when enough was done to authorize a conviction. This the court was, in the first charge asked, requested to do; or, at least, that was the effect of the charge. There was, therefore, no error in the refusal. OF ALABAMA. 87 Bass v. The State. [2.] There was no error in the refusal of the second charge requested. Affirmed. BASS m. THE STATE. [indictment rOK BETTING at ten-pins.] 1. Conviction on testimony of accomplice. — Under the act of 1854, (Session Acts, 1858-54, p. 30,) as amended by the act of 1858, (Session Acts, 1857-58, p. 267,) it is the betting at ten-pins, and not merely playing the game, that constitutes the offense ; conse- quently, a person who engages in the game, and does not partici- pate in the belting, is not an accomplice, within the meaning of section 3600 of the Code, which forbids a conviction on the uncor- roborated testimony of an accomplice. 2. When objection to grand jury may be made.-— Thonobjection cannot be raised for the first time in the appellate court, that the record fails to show that the grand jurors were regularly selected and sum- mon ed. 3. Constituents of offense. — To constitute the offense of betting at toll* pins, (Session Acts, 1857-58, p. 267 ; ib. 1853-54, p. 30,) it is not necessary that the game should be played at one of the places enumerated in section 3243 of the Code. From the Circuit Court of Covington. Tried before the Hon. Jxo. K. Henry. The indictment in this case charged, that the defend- ant, within twelve months before the finding of the in- dictment, and after the 8th February, 1858, "bet at ten-pins, or some such game, which betting was not for the game." The defendant demurred to the indictment, for duplicity, for uncertainty, because is did not suffi- ciently describe the offense, and because it did not allege that the game was played at one of the places specified in section 3243 of the Code; but hia demurrer was over- 88 SU PREME COUR T Bass v. The State. ruled. u Oa the trial," as the bill of exceptions states, "the State introduced one Rue as a witness, who testified, that the defendant and one Carson, within twelve months before the finding of the indictment, agreed to roll a game of ten-pins at a public alley in the town of Anda- lusia in said county, and bet the feed of two yokes of oxen for three weeks on the result of said game; that Carson asked him to roll the game for him; that he and Carson rolled said game against defendant and another person, whose name he did not recollect; that they went to the bar several times during the game, and drank liquor; that Carson won the game, and a controversy then arose between him and the defendant, as to the construc- tion of the bet; that the game was played in Covington county, on a public alley in the town of Andalusia, which was kept for play and pay, within twelve months before the finding of the indictment; that he had no interest whatever in the bet made on the game, or for the alley fees, or for the liquor drunk; that he paid for nothing, and neither won nor lost anything on the game; and that his only connection with the game was to join in the roll- ing f. : Carson, and at his request." The defendant asked the court to instruct the jury, "that it they found, from the evidence, that the witness Rue was engaged in rolling the game for Carson, and did nothing but roll for him, and took no part in the betting, but drank with the others at the conclusion of the game, he was an accom- plice, and they could not convict the defendant on his uncorroborated testimony." The court refused this charge, and the defendant excepted to its refusal. John McCaskill, for the defendant. M. A. Baldwin, Attorne} T -General, contra. R. W. WALKER, J.— [July 9, 1861.]— 1. The test, by which to determine whether a witness, who has been in- troduced by the State, is an accomplice within the mean- ing of section 3000 of the Code, is the inquiry, could the witness himself have been indicted for the offense, either OF ALABAMA. 89 Ex parte Kelly, et al. as principal or accessory ? — See Davidson v. State, 33 Ala. 350; Bouvier's Diet., "Accomplice." Under the act of Feb. 17, 1854, (Acts '53-^4, p. 30,) as amended by the act of Feb. 8, 1858, (Acts '57-8, p. 267,) it is the betting at ten-pins, and not merely playing the game, that con- stitutes the offense. As the witness did not bet, and was not concerned in the bets made by others who took part in the game, he could not have been indicted;, and there- fore,, was not an accomplice. [2.] The objection, that the record fails to show that the grand jury was regularly selected and summoned, cannot be made for the first time in this court. — Code, § 3591; Shaw v. State, 18 Ala. 549; Nugent v. State, 19 Ala. 540; Floyd v. State, 30 Ala. 511- Russell v. State, 33 Ala. 366. [3.] It is not necessary to constitute the offense of betting at ten-pins, that the playing should take place at one of the places enumerated in section 3243 of the Code. Hence, the objection to the indictment was not well taken. Judgment affirmed. Ex Parte KELLY, et al. [application for habeas cokits.] 1, Jurisdiction of State courts to discharge person in custody for violation of crimn ' United States. — The courts of this State have now (July !>, 1861,) no jurisdiction to discharge from custody a person who was arrested prior to the passage of the ordinance of secession, oharge.1 with a violation of the criminal laws of the Uniled Stales within the limits of the State of Virginia ; the question of his right to be discharged, or his transfer to the proper court in Virginia, for trial, appertaining to the jurisdiction of the district court of the Confederate States. SUPREME COURT Ex parte Kelly, et al Application by John Kelly and Richard Dodge, a lias Richard Ilorton, for the writ of habeas corpns r or other remedial process, to obtain th'eir release from imprison- ment in the county jail of Mobile. The petitioners were arrested under a warrant, dated November 2, 1860, issued by a justice of the peace in Mobile, (acting under the au- thority conferred on him by the act of congress approved the 24th September, 1789, known as the "judiciary act,") on a charge of assault and battery and robbery, "said to have been committed by them, on the person of one Martin Green, in the month of September, 1860, on board the American ship Eastern Star, in the Potomac river, near its mouth, and contiguous to the Chesapeake bay ; "" and were committed to jail by the justice, to answer said charge "before the next grand jury for the United States of America." At the December term, 1860, of the dis- trict court of the United States for the southern district of Alabama, Hon. Wn. G. Jones presiding, the grand jury investigated the case, and returned into court a re- port in writing, in which they stated, that they were satisfied of the commission of the offense by the prison- ers, but were advised that the court had no jurisdiction of the case, except to order its transfer, and the removal of the prisoners for trial, to the proper tribunal; and the court thereupon made an order, on the 11th January, 1861, (the day on which the Alabama ordinance of secession was adopted,) directing the United States marshal of that district to remove the prisoners to the eastern district of Virginia, and to deliver them to the marshal of that dis- trict. On the 8th February, 1861, the prisoners sued out a habeas corpus before the Hon. Henry Chamberlain, the ut' the city court of Mobile, who, ou the hearing of the case, remanded them t<> jaii; and on the 7th March, 1861, they renewed their application to this court. The opinion of this court was delivered on the 9th July, 1861. F. S. Blount, for the prisoners. — 1. The order of Judge Jones, haying been made on the day the Alabama ordi- OF ALABAMA. 91 Ex parte Kelly, et a!. nance of secession was passed, is void. — Arnold v. United States, 9 Crunch, 104. That ordinance was a revocation of the entire legislation of the United States congress,, within the limits of this State; and this state of things continued until the 20th January, when the convention adopted such portions of the United States laws as they deemed necessary for the government of the State. 2. The ordinance of 20th January, continuing and transferring to State courts the cases pending in the United States courts, expressly excepts from its operation those cases 4k in which the United States of America is plaintiff';' and the effect of this exception is to difrcon- tinue all prosecutions at the suit of the United State.-; The adoption of the act of 1825, respecting crimes against the United States, by the Gth section of that ordinance, was prospective in its operation, and could not revive a criminal prosecution which had been discontinued. 3. The prisoners have committed no offense against the laws of Alabama. They are charged with the com- mission of an offense, outside the limits of the State, against a government whose laws and jurisdiction, within this State, arc abolished; and there is now no law by which they can be detained or punished. Nor has the United States, though now a foreign government, any right to demand their surrender for trial, since that is a right which only exists by virtue of treaty stipulation ; and any treaty between the United States and tli" (\»u- federate States, hereafter made, would not reach Ltsir case.— 2 Brock. C. C. 493. 4. Unless discharged by authority of a State court, the prisoners are without remedy; the ordinance of s • i having abrogated the constitution of the United Mates, its laws, courts, judges, and officers. The following thorities are referred to: R »sC v. Ilimely, 4 Crahch, Elliott v. Piersol, 1 Peters, 340; Exchange v. McF; 7 Cranch, llii; Williams v. Suffolk Ins. C «.. 3 Sumnerj C. C. 270; Vattel's Law of Nations, (ed. 1*29. A.J. WALKER, C. J.— [Julj 9, 1861.]— We think 92 SUPREME COURT Ex parte Kelly, et al. that, at this time, the application for the habeas corpus m this case appertains to the jurisdiction of the . district court of the Confederate States of America; and that guided by the decision in Ableman v. Booth, (21 How. 506,) which we recognize as an able and correct exposi- tion of the law, we have no authority to interfere in the matter. We state, briefly, the reasons that lead us to that conclusion. • The ordinance of the convention of the State of Ala- bama, conferring the judicial power of the courts of the United States in this State upon the State courts, was' limited in its operation to the time when the congress of the Confederate States should otherwise dispose of the jurisdiction. The constitution of the provisional gov- ernment, in its third article, bestows that jurisdiction upon the district courts; and bestows upon the congress of the Confederate States power to make laws for the transfer of causes, pending in the courts of the United States, to the courts of the Confederacy.; and also forthe execution of the orders, decreeH and judgments thereto- fore rendered by the courts of the United States. Section fifty of the act of the provisional congress, to establish the courts ot the Confederate States, adopted March l(kh,1861, provides, that no person now under arrest, or in custody, upon any criminal charge or offehse, on process issued from the courts of the United States, shall be released by reason of the dissolution of the Union; but he shall continue under arrest, or in custody, until discharged by due course of law. The State of Virginia is now a mem- ber of the Confederacy ; and an act of congress, approved 9th February, 1861, continues all laws of the United States in force and in use in the Confederate States of America on the first day of November last, and not in- consistent with the constitution of the Confederate States. In view of the constitutional and legislative provisions above stated, we are not prepared to decide, that the judge of the district court is without authority to trans- mit the prisoners to the proper court in Virginia for trial, OF ALABAMA. 93 lsham (a slave) v. The State. as might have been done under the laws of the United States, it the Union had not been dissolved. — Brightley's Digest, p. 90. At all events, we feel entirely elear in the opinion, that the question «f the prisoners' right to a discharge is a matter now appertaining to the jurisdiction of the district court of the Confederate States; and it would bo improper for us, at this time, to grant to the prisoners any remedial process. Motion refused. ISHAM (a slave) vs. THE STATE. [iNDICTMEXT AGAINST SLAVE FOR BOM WIDE OF WHITE PERSON.] 1. Homicide of whit t person by slave. — If a slave kills a white person, believing him at the time to he a runaway negro, and being .justi- fied by the attendant circumstances in the'belief, the degree of the homicide-whether murder, voluntary manslaughter, or involuntary manslaughter — is the same that it would have heen if the person slain had been a run .way negro; but the punishment of the offense is that prescribed for such degree of homicide when perpe- trated by a slave on a white person. 2. Conviction of less offense than charged in indiclment. — Under an in- dictment charging a slave with the voluntary manslaughter of a white person, a conviction may be had for involuntary man- slaughter in the commission of an unlawful act. From the Circuit Court of Jefferson. Tried before the lion. Wm. S. Mudd. The indictment in this case contained three counts; the first charging that the prisoner, who was a slave, the property of Capt W. F. Hanby, "unlawfully, and with malice aforethought, killed George M. Ilagood, by shoot- ing him with a gun;" the second, that he "unlawfully and intentionally, but without malice, killed George M. 94 SUPREME COURT Isham (a slave) v. The State. Hagood, a white person," &c; and the third, that he " unlawfully, but without malice or the intention to kill, killed George M. Hagood, a white person," &c. The circuit court sustained a demurrer to the third count, and the prisoner pleaded not guilty to the other counts. "On the trial," as the bill of exceptions states, "the prosecution introduced a witness, who testified, that, on the night the deceased (who was a white man) was killed, he, in company with the deceased and two other white men, went by agreement to the house of .the prisoner's master, (all the white family being absent,) for the pur- pose of catching a runaway slave, who was said to be lurking about the place, and of detecting the prisoner in harboring said runaway, if guilty of so doing; that the deceased and himself disguised themselves, by blacking themselves, putting on old clothes, and haying a budget tied up in a handkerchief; that they went near the negro house, and made a noise there, and then went to the corner of the house, and struck on it with a stick; that the dog barked fiercely during the time, and the prisoner hissed on the dog; that the prisoner came round the house, and, as soon as he got in sight, asked, 'Who are you?' that the deceased replied, 'A partner,' and, as soon as the reply was out, the prisoner fired, and killed the deceased; that he (witness) then said, '.Don't shoot, you have killed Mansfield;' that the prisoner replied, 'Lord, Massa George, why didn't you speak?' and that the prisoner remained until morning, assisting to wash and lay out the deceased, and was arrested in the morn- ing. There was other testimony, confirming said witness, and showing that said party went towatoh Capt. Han by 's house in disguise by consent and agreement with him. There was testimony tending to show, also, that some person had been seen by night about said premises, while Capt. Ilanby was absent in camp drilling his company ; that on the night before the killing, the prisoner had taken the gun, in presence of his mistress, and run out some distance from the house, and shot (as he said) at some person. It was in proof, also, that the prisoner, on OF ALABAMA. 95 Isham (a slave) v. The State. the morning before the killing, asked his mistress for the guu, to carry to the field; that she refused, and forbade his having or taking the gun; and that he took the gun from the house, on the night ot the killing, without the knowledge or consent of his master or mistress, and du- ring the absence of the white family fcom home. "The prisoner asked the court to charge the jury as follows: 'It the jury believe, from the evidence, that the deceased disguised himself, by blacking himself, and the manner in which he was clothed, for the purpose of deceiving the prisoner, and making him believe that he was a runaway slave; and, under such disguise, went to the prisoner's house on his master's premises, at an un- usual hour of the night, between midnight and day; and there, by his disguised condition, and the manner in which he acted, deceived the prisoner; and that the pris- oner, in truth and in fact, believed that the deceased was a runaway negro slave, and, under that delusion, shot and killed the deceased, — then he is neither guilty of murder, nor of the voluntary manslaughter of a white person, nor of the involuntary manslaughter of a white person in the commission of an unlawful act.' The court refused this charge, and the prisoner excepted. "The court charged the jury, that the counts in the indictment included the charge of involuntary man- slaughter; to which charge, also, the prisoner excepted." The verdict of the jury was, "Guilty of voluntary manslaughter, as charged in the second count of the in- dictment." E. W. Peck, for the prisoner. — By the criminal law, a man may safely act upon appearances; and if he acts in good faith, their falsity does not in any manner increase his guilt or criminality. — Meredith v. Commonwealth, 18 B. Monroe, 40; Shorter v. People, 2 Comstoek, 107. This principle is, in substance, recognized in Oliver's case, (17 Ala. 587,) "and in Carroll's case, (23 Ala. 28.) The act itself does not make a man guilty: to constitute a crime, the act and intent must both concur. — Broom's 96 SUPREME COURT Isham (a slave) v. The State. Legal Maxims, 211, 212, 221; 7 Term Rep. 514; Hale's P. C. 509. "If a man, intending to kill a thief, or a housebreaker, in his own house, happen by mistake to kill one of his own family, it cannot be imputed to him as a crime." — 3 Cro. Rep. 538. In this case, these was no malice of the will — no cor- rupt intent on the part of the prisoner. In the absence of his master and mistress, he was left at home the guar- dian and protector of their house and property. Danger of mischief was justly apprehended, some unknown per- son, supposed to be a runaway slave, having been seen prowling about at night. The deceased and his party dis- guised themselves as runaway slaves, and, by their conduct, induced the prisoner to believe that they were in fact what they assumed to be. Acting on this belief, the prisoner committed no crime in attempting to protect his master's house and property. If his act was not strictly lawful, it was at least excusable. As to the degree of caution which must be exercised, where a homicide is committed under an honest mistake of fact, see Foster's Crown Cases, 263-65. 2. The affirmative charge of the court is erroneous. M. A. Baldwin, Attorney-General, contra. — 1. The charge asked by thejprisoner, asserts three distinct propo- sitions, each of which is untenable; namely, that the prisoner, on the facts supposed, would not be guilty of any one of the three specified offenses — murder, the vol- untary manslaughter of a white person, or the involun- tary manslaughter of a white person in the commission of an unlawful act. As murder, when committed by a slave, whether by killing a white person or a negro, is precisely the same offense, and subject to the same pun- ishment, the first proposition is manifestly erroneous. As the prisoner was*guilty of an unlawful act in having the gun, (Code, § 1012,) as well as in shooting it, he was at least guilty of the involuntary manslaughter of a white person in the commission of an unlawful act; to consti- tute which offense, a knowledge of the status of the per- OF ALABAMA. 97 Isham (a slave) v. The State. son slain is not a necessary ingredient; consequent^, the last proposition asserted by the charge is also erroneous. "Whether the prisoner was guilty of voluntary man- slaughter, or the voluntary manslaughter of a white person, depended upon other facts than those hypotheti- cally stated in the charge, and was to be determined by a consideration of all the facts in the case. Although, to constitute a crime, an evil act and an evil intent must both concur; yet a man may intend to commit one wrong, and, failing in it, commit another; in which case, the wrong iutende t and the wrong done coalesce and create the crime. — 1 Bishop on Criminal Law, 254; Wharton, § 905. The mere fact that the prisoner believed the de- ceased to be a runaway slave, would afford him no pro- tection, if he had' the means of ascertaining the true facts, and did not do so. — 1 Bishop's Crim. L. 242; Wharton, § 1005; Barnes v. State, 19 Conn. 398; Commonwealth v. Marsh, 7 Metcalf, 472; United States v.Liddle, 2 Wash. C. C. 205; Unted States v. Ortega, 4 Wash. C. C. 530; United States v. Benners, 1 Baldwin's C. C. 240. 2. The affirmative charge of the court is sustained by the decision in Henry's case, 33 Ala. 389. A. J. WALKEK, C. J.— [Feb. 1, 1862.]— The charge asked by the prisoner; and refused by the court, involves the assertion, that -the prisoner could not bo guilty of murder, because the homicide was committed under the delusion that the deceased was a runaway slave, and that delusion was justified by the attendant circumstances. In so far as the charge involves that assertion, it was ob- viously wrong. A homicide, committed by a slave, un- der such circumstances as would constitute murder, would be the same offense, and subject to the same punishment, whether the deceased was a white person or a negro; and it could make no difference, in that case, that the prisoner supposed the deceased to be a slave. — Code, § 3312. The charge, however, was designed to assert, that a slave, slaying a white person, under the delusion and be- 98 SUPREME COURT Isham (a slave) v. The State. lief, justified by the circumstances, that the person killed was a runaway negro, would not be guilty of the volun- tary manslaughter of a white person, nor of the involun- tary manslaughter of a white person in the commission of an unlawful act; although, if the appearances had been true, he would have been guilty of the voluntary or involuntary manslaughter of a slave. This proposition is important, because a higher grade of punishment is prescribed, where those offenses are perpetrated by a slave upon a white person, than is prescribed where they are perpetrated upon a negro. — Code, §§ 3313, 3314. To support the proposition, it is asserted as a correct princi- ple, that the guilt of a party of any particular offense is to be determined in the light of the circumstances as they appeared to him ; and that, therefore, the prisoner cannot be guilty of the manslaughter of a white man, because it falsely appeared to him that the object slain was not a white man. We do not concede the principle so asserted, in the latitude in which it is thus stated. It stands opposed to the doctrine which authorizes a con- viction of one offense, when the accused committed it, while designing and endeavoring to perpetrate another. The true doctrine, as we conceive, is, that " where a party, without fault or carelessness, is misled concerning facts, and acts as he would be justified in doing if the facts were what he believes them to>be, he is legally, as he is morally, innocent." — 1 Bishop's Cr. Law, § 242. The charge asked and refused is at war with this princi- ple; for it assumes that, no matter what the degree of guilt which would have existed if the appearance that the person slain was a negro had been true, the accused can not be guilty of the homicide, in any of its degrees, of a white person. The effect of it is, that although the ac- cused would have been guilty of the murder or man- slaughter of a negro, if the appearances had been true, he cannot be guilty of the murder or manslaughter of a white man, the appearances being false. The inevitable result oi this doctrine would be, that the accused, al- though guilty of murder or manslaughter, could not be OF ALABAMA. 99 Isham (a slave) v. The State. convicted of any offense. He could not be convicted of killing a negro, because in fact he killed a white man ; and he could not be convicted of killing a white person, because the appearances superinduced and justified the belief that he was killing a negro. It is not indispensable to the constitution of a crime, that the prisoner should commit the very act intended. Cer- tainly, there must concur a wrongful intent, and a wrong- ful act. But he who, aiming to accomplish one wrongful act, fails in that, but perpetrates another, is not excwsed; The wrongful intent, and the wrongful act, are said to coalesce and make the crime. — Bishop on Cr. Law, §.254. Numerous illustrations of this doctrine are to be found in the books. Where there is a design to commit a fel- ony, and a homicide ensues, against or beyond the intent of the party, he is guilty of murder; but, if the intent went no further than to commit a bare trespass, it will be manslaughter. — 1 East's Cr. Law. 255. If A gives a poisoned apple to B, intending to poison B ; and B, igno- rant of it, gives it to achild^wbo takes it and dies, A is guilty of the murder of the child, but B is guiltless. And so, if one, out of malice af A, shoots at him, but misses him, and kills B, it is no less murder than if lie had killed the person intended. — Wharton's Cr. Law, § 965. These illustrations will suffice to show, that to the con- viction of a slave for the homicide of a white man, it is not indispensable that there should exist an intent to kill a white person, or even a knowledge that the deceased Was a white man. Indeed, one may be guilty of invol- untary manslaughter, where there was no intent to kill. A homicide, resulting from an attempt to commit any unlawful act, would be manslaughter; and therefore, if a slave should shoot unlawfully at a beast, and by chance kill a white person, he would be guilty of the involun- tary manslaughter of a white person in the commission of an unlawful act, although he might be ignorant of the proximity of the person slain. Surely, the crime could not be less, if the purpose was to kill a negro instead of a beast ; and yet such is the conclusion to which the ar- 100 SUPREME COURT Isham (a slave) v. The State. o-ument for the prisoner would lead. The statute does not make a knowledge that the deceased was a white person an ingredient of the offense, and we cannot decide that it is. There being a criminal intent, the defendant is guilty, notwithstanding he was mistaken as to the person upon whom his unlawful purpose fell. — See the authorities collected in 1 Bishop on Cr. Law, § 247, and on the attorney-general's brief. The loth of Lord Bacon's maxims is as follows : " In criminalibus, safficit generalis maliiia intentionis, cum facto paris gradus." — 3 Bacon's Works, 238 ; Broom's Legal Maxims, 238. In reference to this maxim, the learned author says : "All crimes have their conception in a cor- rupt intent, and have their consummation and issuing in some particular fact; which, though it be not the fact, at which the intention of the malefactor leveled, yet the law giveth him no advantage of that error, if another particular ensue of as high a nature." We do not find this maxim so recognized by subsequent writers on the criminal law, and by those'adjudging criminal causes, as to induce us without hesitation to adopt it as a correct exposition. The explanation of the maxim would seem to imply, that, to constitute the crime, it is only neces- sary that the act should be of as high a nature as the intent; and not to imply a denial that the crime might take its complexion from an act of criminality higher than the intent. If this be the construction, it would not aid the accused. If the 'maxim import that there must be a perfect correspondence between the intent and the act, it can not be harmonized with principles too well established to be controverted. A homicide, not intended, but committed, in the perpetration of burglary or arson, would be murder, notwithstanding the offenses intended are not, in our law, ot as high a grade, or subject to as severe penalties, as murder. We shall not engage in any speculation as to the true import and operation, or the authority, of the maxim, but shall content ourselves with announcing the conclusion, that we can not be led by it to OF ALABAMA. 101 Isham (a slave) v. The State. oppose the proposition which we now proceed to state, as follows : A slave, who kills a white man, intending to kill a negro, is guilt}' of a criminal homicide in the degree in which he would have been guilty if the person slain had been a negro; and he is subject to the punishment pre- scribed for the commission of the offense upon a white person. The maxim, in its literal translation, only re- quires, that the act should jDe of equal grade with the intent; not that the same punishment should be incident to the thing done as to the thing intended. Crimes may be of the same degree, and yet subjected by law, founded in public policy, to different punishments. The man- slaughter of a white man by a slave, and the manslaughter of a negro by a slave, belong to the same degree of homi- cide, and yet are subjected to variant punishments. So, also, manslaughter committed with a bowie-knife, and manslaughter committed with a different weapon, are offenses of the same degree, and yet there is a distinction made in the punishments prescribed. Numerous other illustrations might be drawn from our criminal law. In all those cases, as in this, the difference is not in the de- gree, but in the punishment; and the difference in the punishment is the result of some incident to the crime, which from public policy the law makes an aggravation. If, therefore, we take the maxim in its literal import, we find nothing inconsistent with our position. In the case of Bob v. The State, (29 Ala. 20,) it was argued, that the prisoner, a slave, when committing an assault and battery upon another slave, by accident struck and killed the deceased, who was a white person. In reference to that aspect of the case, this court said: "We hold, that if a slave, in the attempt unjustifiably to com- mit an assault, or assault and battery, on another slave, kill a white persoD by misadventure, he is guilty of in- voluntary manslaughter, under section 3312 of the Code." This is an express adjudication of the point hiade in this case, that a slave can not be guilty of the manslaughter oi a white person, when the intent was aimed at a negro. 102 SUPREME COURT The State v. Lee & Norton. If one intending to beat a negro, and unintentionally killing a white person, is guilty of the homicide of a white son ; a fortiori, is a slave thus guilty, when, intending to kill a negro, he by mistake kills a white person. [2.] Wj3 are content to abide by the decision in Henry's case, 33 Ala. 389. Upon the principle of that decision, the accused might be convicted of the involuntary man- slaughter of a white person, under a count for the volun- tary manslaughter of a white person. There was, there- fore, no error in the charge given by the court. The judgment of the court below is affirmed, and its sentence must be executed, as therein ordered. [APPI.K THE STATE vs. LEE & NORTON. .ICATION TO commissioners' coukt fok correction of tax assess- ment.] 1. Tax on auction sales. — The tax imposed by law on the gross amount of auction sales, (Code, \ 391, subd. 17,) is to be assessed against and paid by the auctioneer, and not by the owner of the property sold. Appeal from the Circuit Court of Montgomery. Tried before the lion. Nat. Cook. The appellees in this case, who were licensed auction- eers in the city and county of Montgomery, applied to the commissioners' court of said county, at its April term, 1861, for an amendment and correction of the taxes assessed against them for the tax year ending on the 1st March, 1860; alleging in their petition, that, du- ring said tax year, they had sold at auction in said city real estate belonging to divers persons, the proceeds of which sales amounted in the aggregate to $43,742.50, and that the county assessor had assessed against them a OF ALABAMA. 103 The State v. Lee & Norton. tax of one per cent, on the gross amount of said sales ; which tax, as they insisted, ought to have been assessed against the several owners of said real estate, who were shown to be resident citizens of said county. The com- missioners' court held the assessment correct, and refused to make the proposed amendment; and the appellees then removed the proceedings, by certiorari, into tbe cir- cuit court. The circuit court overruled a demurrer to the petition, reversed the judgment of the commission- ers' court, and ordered the assessment to be amended as asked by the petitioners. Exceptions were reserved on the part of the State to these several rulings of the cir- cuit court, and they are here assigned as error. M. A. Baldwin, Attoruey-General, for the State. John A. Elmore, contra. STONE, J.— [Feb. 20, 18G2.]— Section 391 of the CoTe declares, that "Taxes are to be assessed by the assessor in each county, on and from the following subjects, and at the following rates :" * * * - * Subd. "17. On the gross amount of all auction sales made in or during the tax year preceding the assessment, except cargo sales of foreign imports, those made by executors, administrators and guardians, as such, by order of court, or under legal process, and under any deed, will or mort- gage ; on every hundred dollars, and at that rate, one dollar." The present record raises the question, whether this tax of one per cent, is to be paid by the auctioneer, or by tbe owner of the property sold. We hold that the auc- tioneer is the party who must pay this tax, for the fol- lowing reasons: Section 802 of the Code declares, that " All persons engaged in any business or pursuit, the re- ceipts, sales, commissions of which, or capital employed, are subject to assessment under the preceding section, must keep correct accounts of the same for the tax year preceding such assessments, and exhibit the results of the same to the tax collector, verified by oath. - ' We Bup- 104 SUPREME COURT Xinnoy v. The State. this is a verbal inaccuracy, and that the meaning is, that it shall be exhibited to the tax assessor. Thus con- ttrued, it would 6eem to contemplate that the subjects of taxation should be rendered in by the auctioneer. It is difficult to conceive why taxables should be rendered in by one person, and the assessments made against another. But section 410^ subdivision 3, is still more explicit. It declares, that assessments are to be made "on all sales and purchases subject to taxation, to the person making the same or his agent, in the county in which such sales or purchases are made." In addition to these plain in- dications in the statutes, we can well conceive of a legis- lative policy which would select a resident auctioneer, rather than a possibly non-resident proprietor, from whom to collect the assessments on auction sales. This policy, we think, was carried into the legislation. The judgment of the circuit court is reversed: and this court, proceeding to render such judgment as the circuit court should have rendered, doth herein- order and adjudge, that the petition of the appellees, Messrs. Lee .V Norton, be dismissed, at their costs, in the circuit court and in this court. KINNEY vs. THE STATE. [iN'DlCTMHS'T FOB D1STURBAKCB OF RELIGIOUS WORSHIP.] 1. Wh-at conntitu e. — To constitute an interruption or disturb- ance of "an assemblage of people met for religions worship," (Code. \ .".'j.">7.) it i-- not necessary that the interruption or disturb- ance should be made daring the progress of the religious services; if maffl after the conclusion ol the services and the dismissal of the congregation, but while ;i portion of the people still remain in the house, and before a reasonable time has elapsed for their dis- persion, the offense is complete. OF ALABAMA. 105 Kinney v. The State. From the Circuit Court of Winston. Tried before the Hon. Wm, S. Mudd. The indictment in this case charged, that the prisoner " willfully interrupted or disturbed an assemblage of peo- ple met for religious worship, by noise, profane discourse, or rude or indecent behavior, at or near the place of wor- ship." "On the trial," as the bill of exceptions states, "the prosecution adduced testimony tending to show that, within twelve months before the finding of the indict.- ment/and in said county of Winston, the defendant will- fully interrupted and disturbed an assemblage of people met for religious worship, by using profane language, cursing and swearing, and by loud noise and rude beha- vior, at or near the place of worship. The defendant proved, that, at the time of said interruption and dis- turbance as aforesaid, the religious services had been con- cluded, the preacher had dismissed the congregation, and the people were about to disperse, a small portion of them having gone into the yard, while the remainder were still in the house where the religious services were held. On this evidence, the defendant asked the court to instruct the jury, that, if they believed the evidence? they must find the defendant not guilty; which charge the court refused to give, and the defendant excepted to its refusal." E. W. Parksr, for the prisoner., M. A. Baldwin, Attorney-General, contra. R. W. WALKER, J.— [Jan. 14, 18G2.]— Section 3257 of the (-ode enacts, that " any person, who willfully in- terrupts or disturbs any assemblage of people met for re- ligious worship, by noise, profane discourse, rude or inde- cent behavior, or by any other act at or near the place of worship, must, on conviction, be fined not less than twenty or more than two hundred dollars, and may be impris- oned not more than six months." In Ten i I he statute ou this subject provided, that " if any prison shall interrupt a congregation assembled 8 106 SUPREME COURT Kinney v. The State. for the purpose of worshipping the Deity, such person shall be dealt with as a rioter at common law." On the trial of an indictment founded on the act just cited, it wa« proved that, after the services were over, and the congregation had been dismissed, and. begun to leave, some being still in the church, some in the churchyard, and others left for home, the defendant, with others, ex- cited and disturbed the congregation, by cursing, swear- ing, lighting, &c, there then being present a good many ladies and gentlemen. Upon these facts, the defendants asked the court to charge, that if the worship had closed, and the congregation had been dismissed, and had begun to disperse, part having left the ground at the time the disturbance occurred, then defendants could not be con- victed. This the court refused, but charged the jury, that if the worship had ceased, and the congregation had been dismissed, then, unless a reasonable time had elapsed for the dispersion of the congregation after such dismis- sion, the defendants would be guilty, if they did acts cal- culated to disturb those on the ground. On appeal to the supreme court, it was decided, that there was no error in the rulings of the circuit judge ; the court holding, that the act not only protects from disturbance a congrega- tion while actually engaged in worship, but extends its protection also to all congregations which had assembled for the purpose of worshipping ; and that this protectiou •continues, from the time the congregation so assembles, until it disperses and ceases to be a congregation. — Wil- liams v. State, 3 Sneed, 313 This decision, which we readily adopt as a correct con- struction df our own statute, is precisely in point in the present case, and shows that the court did not err in re- fusing the charge asked by the defendant. The language of the Virginia act on the same subject is: "If any person shall, on purpose, maliciously, or con- temptuously, disquiet, or disturb any congregation assem- bled in any church, meeting-house, or other place of reli- gious worship," &c And it has been held in that State, that the statuteis applicable, not only to disturbances made OF ALAB AMA. 107 Cheek v. The State. while the religious services are progressing, but also to disturbances made while the congregation is assembled for worship, though it be at night, on a Methodist camp- ground, after the services are over for the day, and the worshippers are retired to -rest. — Commonwealth v. Jones, 3 Gratt. 624. Judgment affirmed. Stone, J., not sitting. CHEEK vs. THE STATE. [indictment against ounfr fo:: negligent treatment of slave?.] 1. Johuhr of offenses in indictment. — An indictment, vyhieh charges that the prisoner, heing the owner of certain slaves, "did fail (o provide them with a sufficiency of healthy food or necessary cloth- ing, or to provide for them properly in sickness or old age," <■'•'' ! '". §§3297-98,) is not objectionable for duplicity, although a conviction might be had on proof of negligent treatment in any one of the specified particulars; nor does the joinder of the names ofsevi 1 al slaves, in the same count, render it obnoxious to that objection, although a conviction might be had on proof of the negligent treat- ment of any one of them. 2. Description of slaves in indictment. — In such an indictment, slaves whose names are to the grand jurors unknown, maybe thus de- scribed, if by the use of due tliligenco their names cannot I certained ; but, if it is shown on the trial that, at the time the indictment was found, their nai in fact known, or could havi tertained by due diligence, the defendant will be en- titled to an acquittal as to them ; yet proof of the Bingle fuel that their namo# were known at the time of the trial, without more, would not entitle him to an acquittal. . — Under such an indictment, chargii negligent treatment of several slaves, if it should appear on the trial that the offenses aato the Beveral slav< I be the duty of the court to compel an election by the pr yet, if all the slaves arc on the same plantation, and tli ant's conduct towards all of them in the aggregati a conviction, there is no ground for such compul ction. 1 i SUPREME COURT ek v. The State. ■■ rt. — A person who has served in the ea- ■:\ plantations for sixteen months, is compe- ive his opinion, as an expert, in reference to the amount of I which is sufficient for a plantation slave. nee, as showing quantity of meat furnisher! to defend' The indictment having been found in May, 18G0, and the prosecution having proved that, in the year 1859, all the meat on the defendant's plantation was consumed by midsummer, and that in. -a', was afterwards supplied to the plantation from his resi- dence, — it is competent for the defendant to prove that, in Decent* 1858, (otttside of the time covered by the indictment,) a speci" lie 1 number of hogs were killed on the plantation, the meat of which was kept there lor the usfl of the slaves. From the Circuit Court of Lowndes. Tried before the Hon. John K. Henry. The indictment in this cane ayus found at the May term, . and continual but a single count, which was as fol- lows: "The grand jurors of said county charge, that, be- fore the finding of this indictment, Randall Gheek was t. or person standing in (hat relation to certain 3, to-wit, Bob, Anderson, and Mosc, and divers others whose names are lo the grand jiorors aforesaid nn and, as such, did fail to provide them with a sufficiency Of healthy food or necessary clothing, or to provide for them properly in sickness or old ag The defendant demurred to the indictment, but the causes of demurrer assigned are not stated in the record. The court over- ruled t!,-' demurrer, and he the.n pleaded not guilty. the trial, as appears from the bill of exceptions, the State introduced one Snelgrow as a witness, who was the ■ mi tie- defendant's plantation in Lowndes county, from February, until October. 1850, and who testified, that among the slaves on said plantation was cme named \], e, another named Anderson; and two named Bob, — one being called "Old Bob," and the other "Short Bob." "The State then proved, by said witness, the amount of food which was furnished to said Mose during the period of twelve months before the indictment was found, for the purpose of showing that he was not sufficiently fed; OF ALABAMA.-' __ 109 Cheek v. The State. and the proof, as to Mose, tended to show this fact. The State then, proposed to make the same proof as to An- derson and the two Bobs; to which the defendant ob- jected, on the ground that the State had elected to pro- ceed for the offense of not sufficiently feeding the slave Mose, and because the two Bobs were not sufficiently de- scribed in the indictment; which objections the court Overruled, and admitted the evidence, and the defendant excepted." The court also allowed the prosecution, against the defendant 's objection, to make the same proof in reference to the other slaves on the defendant's said plantation, not named in the indictment; and the de- fendant reserved an exception to the admission of this evidence. The only evidence adduced by the prosecution, in ref- erence to the manner in which the slaves were fed, was the testimony of said Snelgrove, who stated that, "while he was overseer on said plantation, said slaves were each allowed, l"y the direction of the defendant, onjy one quarter of a pound of bacon per day, and no other meat, and were not allowed any bacon at all on Sunday; that they were also allowed as much corn meal as they wanted, and, ; Regina v. Bleasdale, 2 Car. & Kir. We have looked into the books, and find the leading principle upon which we have proceeded supported by several decisions. In Rex v. Benfield and Saunders, : (•J Burr. 980,) the court sustained a count which charged the ringing in the street of songs libelous of the prose- cutor, and'of his son, and of his daughter. In Regina v. (Jiddins and others, (Car. & Marsh. 634,) the objection OF ALABAMA. 113 Cheek v. The State. of duplicity was overruled, where a single count charged an assault upon George Pritchard and Henry Pritchard, and stealing from George Pritchard two shillings, and from Henry Pritchard one shilling and a hat, on a given day. It is said in 1 Hale's Pleas of the Crown, 531, that if one at the same time steals goods of A, of the value of sixpence, goods of B, of the value of sixpence, and goods of C, of the value of sixpence, being perchance in one bundle, or upon a table, or in one shop, this is grand larceny, because it is one entire felony. So, in Thomas' case, reported in 2 East's Cr. L. 934, a count was sus- tained, which alleged the uttering and publishingas true twenty-four false forged and counterfeited receipts for money. In a still later case in England, the accused was charged with stealing coal from the mines of thirty-one different proprietors which was brought up through a shaft leased by him ; and the indictment was held not to be obnox- ious to the objection of duplicity. — Regina v. Bleasdale, 2 Car. & Kir. 765. It appeared that the different larce- nies had been committed by undermining from the defendant's shaft; and the court refused to compel the prosecutor to elect, and decided that, so long as the coal was gotten from one shaft, it was one continuous taking, though the working was carried on by different levels and cuttings, and into the lands of different people. The court, however, advised the prosecution to confine its attention to the taking from one owner. . In the case of the People v. Adams, (17 Wend. 475,) it was held, that an indictment, which alleged an illegal sale of different kinds of lirpiors, on a given day, to divers persons, was not bad for duplicity, and that it must be understood as averring only one transaction. The su- preme court of Vermont sustained an indictment, which charged that the defendant broke and entered one man's house with intent to steal his goods, and, having 80 en- tered, stole another man's goods. — Btate v. Brady, 14 Verm. •'<"■">. The decision is put upon the ground, that the burglary and larceny, although to the detriment 114 SUPREME COURT Cheek v. The State. of different persons, belonged to the same transaction, and might be joined in the same count. So, the supreme court of Rhode Island decided, that a criminal complaint of an assault on two persons was not bad, considering the assault on both the result of the same act. — Kinney v. State, 5 Rhode Isl. 385. And in Commonwealth v. Williams, (Thacher's Cr. Cas. 84,) it was held, that where goods, belonging to different persons, are stolen at one time and place, the offense may beset forth in one count. So, also, in this State, it has been decided, that a count which charged that the defendant administered poison to three persons, is not bad for duplicity. — Ben v. State, 22 Ala. 9. See, also, Shaw v. State, 18 Ala. 547 ; Rasmek v. Commonwealth, 2 Vir. Cas. 856. See, also, Com. v. Tuok, 20 Pick. 356. We think the joinder in this case is authorized by the principle to be extracted from the cases above collected, and we decline to sustain the objection for duplicity. [2.] It is further objected to the indictment, that it charges an omission of duty, not only as to three named slaves, (Bob, Anderson and Mose,) but as to divers others, . whose names were to the jurors unknown. In the cases of Francois v. State, (20 Ala. 83,) Brown v. Mayor of Mobile, (23 ib. 722,) and Starr v. State, (25 ib. 38,) it was decided, tha,t such a mode of averment was not permissible, where the offense was trading with slaves. The reason given for those decision* is, that the absence of' the master's consent was an element of the offense, and that the accused could not be prepared to defend himself, by showing the necessary consent, unless he had information of the name of the slave with whom the alleged trading was done. In the first named of those cases, the court say : " If the trading with a slave was an offense, without any other constituent, we see no reason why the indict- ment might not allege his name as unknown to the jurors, if such was the fact, without in the slightest degree im- pairing the ability of the accused to defend." It is ap- parent, therefore, that those decisions lay down a rule applicable to a particular class of cases, and not a general OF ALABAMA. 115 Cheek v. The State. principle of criminal pleading. We think the general rule is, that where the names of third persons are un- known, and cannot be ascertained, they may be mentioned in the indictment as persons whose names are to the grand jurors unknown. — 1 Ch'itty on Pleading, 212; lArch. Cr. PI. 80, 81, 82; Wharton's Am. Cr. Law, § 251. If it should appear that the name was in fact known when the indictment was found, or could have been ascertained by the use of due diligence, it seems that the defendant would, upon the trial, be entitled to an acquittal as to the slaves so improperly described as unknown. — See the authorities above. We must, for these reasons, hold the indictment on its face unobjectionable, because the names of some of the slaves are stated as unknown to the jurors. It appears, however, that on the trial evidence was in- troduced, charging the accused as. to slaves whose names were at that time known, but are not mentioned in, the indictment. It is not shown, however, that the names of those slaves were not unknown, and incapable of ascer- tainment, at the time ot the finding of the indictment. If they were unknown, and incapable of ascertainment, when the indictment was found, the defendant would not be entitled to an acquittal in reference to them, because their names were afterwards ascertained, and were known at the time of the trial. — Com. v. Ilendire, 2 Gray, 503; Whnr. Am. Cr. Law, §251. The bill of exceptions is not inconsistent with the supposition, that the names were not discovered, and not capable of discovery, until after the indictment was found. We can predicate no ruling, in favor of the defendant, upon the isolated fact, that the names were known at the time of the trial. There was no error, under the facts disclosed, in allowing proof as to fdaveR not named in the indictment. [3.] We think it results from wdiat we have already said in passing upon the indictment, that the court was not bound to restrict the State to a prosecution for miscon- duct as to any one or more particular slaves, as it appears that all the slaves were on a single plantation, and the conduct of the accused as to the slaves on the plantation 116 SUPREME COURT Cheek v. The State, a«- °regately was the evidence relied on for his conviction. The conduct of the accused as to the feeding of each slave seems to have been a part of one general transaction ap- plicable alike to all. If, however, it had appeared on the trial, that the offenses as to the different slaves were dis- tinct, it "would have been the duty of the court to compel an election on the part of the prosecution, and thus pro- tect the accused against being compelled to answer as to divers transactions under the same count. [4.] The witness introduced by the State had been an overBeer on plantations for sixteen months. When we consider the closeness of observation, which overseers on plantations are compelled to make, of the food consumed by slaves, and of their health and capacity to labor, wo are constrained to regard one who has pursued that busi- ness for sixteen months as competent to give his opinion in reference to the amount of food which is sufficient for a plantation ilave. — City Council of Montgomery v. Gil- mer & Taylor, 33 Ala. 116; Johnson v. State, 35 Ala. 370; McCreary v. Turk, 29 Ala. 244. [5. J It was shown that, about the middle ot the sum- mer of 1859, the meat on the defendant's plantation, where .the slaves were kept, had been consumed, and that afterwards meat was supplied from defendant's residence. That prdof being before the jury, the defendant proposed to show that, in December, 1858, a certain ascertained quantity of pork had been provided on the plantation, and kept on it. This evidence, which was rejected by the court, had, when taken with what had been previously proved, a manifest bearing upon the question of the amount of meat which the negroes had received and consumed ; and the court erred in rejecting it. For this error, the judgment of the court below must be reversed. We do not think it necessary for us to notice the other numerous questions of evidence presented by the bill of exceptions. Some of them arc not very important, and the others may not arise again. Reversed and remanded. Stone, J., not sitting. OF ALABAMA. " 117 Ex parte Coburn. Ex Parte COBURN. [.U'rUCATIoX FOR MANDAMUS TO PROBATE JUDGE.] 1, Jurisdiction of probate judge to revise proceedings of magistrate under peace warrant. — A probate judge has no jurisdiction, on / corpus or otherwise, to revise an order made by a justice of the peace, requiring' a party to give security to keep the peace, and directing his imprisonment until such security is given: the only mode of revising tiic action of the justice, is by an appeal to the circuit court under section 8851 of the Code. Application by Thomas S. and Edward Coburn for a mandamus to the probate judge of Lowndes county, re- quiring him to allow them to adduce evidence before him, on habeas corpus, showing the illegality of their confine- ment by the sheriff of said county, as hereinafter stated. The exhibits to the petitioners' application showed, that they wore arrested, on the 17th December, 1861, under the warra * of n justice of the peace, issued on the complaint of one Jacob Bruce, charging them with a breach of the peace and other apprehended violence; that on the trial before the justice, he made an order, requiring them to give security to keep the peace, and directing they- con- finement by the sheriff until such security was given; that they then applied to the probate judge for the writ of habeas corpus, which was granted; that on the hearing. of the habeas corpus, the sheriff returned the proceedings under which he held the petitioners in confinement; that the probate judge thereupon refused to examine into the validity of the proceedings had before the justice, and would not allow the petitioners to adduce evidence show- ing their innocence of the charge imputed to them; and that they reserved exceptions to the several rulings and decision of the probate judge. W. F. Witciieh, for the motion. 118 SUPREME COURT Ex parte Coburn. K. W. WALKER, J.— [Jan. 21, 1862.]— Where, on complaint to a justice of the peace, an order is made by him, requiring an individual to give security to keep the peace, and directing his imprisonment until such security is given ; the probate judge has no authority, upon habeas corpus or otherwise, to re-examime the case upon the facts, and discharge the prisoner. The only mode of re- vising the decision of the justice upon the facts, is by an appeal, under section 3351 of the Code, to the circuit court, which can try the case de ?iouo, and either confirm the order of the magistrate, or discharge the appellant. Code, § 3354; Tomlin v. State, 19 Ala. 9. The return of the sheriff showed, that the petitioners were held in cus- tody under an order of a justice of the peace, requiring them to give security to keep the peace; and as this order waa not open to objection on any of the grounds specified in section 3744 of the Code, the probate judge had no authority to inquire into its legality or justice.-— Code, § 3741; Ex parte Burnett, 30 Ala. 461. Consequently, the probate judge was right, in refusing to hear evidence touching the guilt or innocence of the petitioners, and properly dismissed the petition. Motion refused. Stone, J., not sitting. OF ALABAMA. 119 Greene v. McGhee. GREENE vs. McGHEE. [APPLICATION BTT BHERirr FOIi MANDAMUS AGAINST COMPTROLLER.] 1. Compensation of sheriff for conveying convicts to penitentiary, — In conveying a convict to the penitentiary, it is the duty of the sheriff to travel f the land route usually traveled" within this State, (Code, \ 3931 ;) and he has no authority to carry him through other States, although " the land route usually traveled," betweep the court-house of the county and the penitentiary, may be through those States. Appeal from the Circuit Court of Montgomery. Tried before the Hon. Joiix Gill Shorter. Tut: appellee in this case, who was the sheriff of Law- rence county, applied to the circuit court for a i\iandamus to William J. Greene, the comptroller of public accounts, to compel that. officer to draw his warrant on the State treasurer, in favor of the petitioner, for the amount claimed by him as compensation for conveying a convict to the penitentiary. The amount claimed by the pe- titioner was $338 44; the distance from Moulton, the county-site of Lawrence, to the penitentiary, being esti- mate:! at nine hundred and fifty miles, by way of the railroad through Chattanooga, Tennessee, and Atlanta, Georgia, to Montgomery. The comptroller refused to draw his warrant on the treasurer for more than $156 To, sting that the petitioner claimed for traveling a greater distance than the law authorized. In the circuit court, the defendant admitted all the facts stated in the petition, ••except that the distance between Moulton and the penitentiary, by the laud route usually traveled, was nine hundred and fifty miles;"' consented that that fact should be determined by the court, upon evidence to be adduced, and waived a rule nisi. "Thereupon, the petitioner in- troduced three witnesses, who stated, that they knew the laud route usually traveled from Moulton to the peniten- 120 SUPREME COURT Greene v. McGhee. tiarv: that the land route usually traveled, for the last thfee voars, has been by way of the railroad to Chatta- nooga, Tennessee, thence by railroad to Atlanta, Georgia, thence to Montgomery, and thence to Wetnmpka by land; and thai the distance by that route, going and re- turning, is more than nine hundred and fifty miles. Said witnesses further stated, that there was a nearer land route through the State of Alabama, which was not di- rect, and which was sometimes, but very seldom, traveled, and was not the land route usually traveled." On this evidence, the circuit court awarded a mandamus ; and its judgment is now assigned as error. M. A. Baldwin, Attorney-General, for the appellant. Samuel F. Rice, contra. A. J. "WALKEK, C. J.-[Jan. 28, 1861.]— The law of this State allows to sheriffs compensation for the removal of convicts to the penitentiary, at a specified rate for every twenty miles of the distance to the penitentiary and back, by " the land route usually traveled."— Code, § 3981. The land route usually traveled, from Moulton, the county- site of Lawrence county, is upon the line of railroad passing through a portion ot Tennessee and Georgia; and the appellee, being the sheriff of Lawrence county, claims compensation according to the distance upon that route; there being, also, another land route, exclusively within the State of Alabama, which is sometimes traveled. The question of this case is, whether he is entitled to com-. pensation according to "the usually traveled land route, which thus passes through two other States, or according to the route by land within the State of Alabama. Certainly, if the section of the Code above referred to is enforced according to its literal import, the appellee would be entitled to compensation for the distance upon the route through Tennessee and Georgia. But "the literal interpretation of an act is not always that which either reason or the law approves." — Thompson v. State, 20 Ala. 54. In the construction of statutes, we are not OF ALABAMA. 121 Greene v. McGhee. to adhere to the letter, at the expense of the true mean- ing and intent of the legislature. — Smith on Stat. 658, § 510. It is proper that the purpose of the legislature, and the subject-matter of the enactment, should be con- sidered, that, if possible, such a construction should not be adopted, as would lead to absurd or grossly unjust consequences; that the intention should be hunted through the entire act; that effect should be given to all its parts, and that all acts upon the same subject should be construed in pari materia. — Smith's Com. on Statutes, §§ 518, 550, 574, 575; Sedgwick on Stat, aud Con. Law, 238. The main purpose of the article in the Code, in which section 3031 is found, is to provide for the safe removal of convicted felons to tile penitentiary. Ihis purpose is patent in almost all the sections of the article; and the different sections are framed in reference to eaeh other,, so as to provide every conceivable safeguard for the sale de- livery of the convicts at the penitentiary. If the sheriff may convey the prisoners into other States on the route, the purpose so clearly indicated, and for the accomplish- ment of which such careful provision is made, may be utterly frustrated. This results from the fact, that the authority of the sheriff to execute the sentence of the court is necessarily »confined to the jurisdiction of this State. The question of the effect of a criminal sentence, when presented in the judicial tribunals of a sister State, has been several times discussed by the courts in this country, and the conclusions attained are not altogether harmonious. — Story, on Conflict of Laws, §621; Com- monwealth v. Green, 17 Mass. 515; Chase v. Blodgett, 10 N. II. 22. It is not necessary for us to enter upon that subject. Whether a penal sentence does or does not fall within the provision of the constitution of the United States, which declares, that "full faith aud credit shall be given in each State to the public acts, records and judicial '■(lings of every other State," is an immaterial in- quiry here; for, however that may be, it is certain that a sheriff of the State of Alabama can have no authority to 9 122 SUPREME COURT Greene v. McGhee. ffo outside of the limits of the State, in the execution ot a judicial sentence. His authority must necessarily cease when he leaves the jurisdiction ot the State of Alabama, whether that authority be to execute a judgment iu a civil case, or the sentence in a criminal case. If the statute under consideration should be allowed the opera- tion contended for on the part of the appellee, we should convict the legislature of the absurdity of consulting especially for the safe removal of convicts to the peniten- tiary, and yet authorizing the sheriff to carry them where his authority would cease. The argument already made is fortified by reference to other sections of the article devoted to the subject of the removal of prisoners to the penitentiary. Section 3924 gives to the sheriff, in the contingency of the disability of any of his guards to dis- charge their duties, the power to summon new guards "in any county through which he may pass." Section 3926 also gives him authority to summon additional guards, when it is rendered necessary by an attempt to rescue tin convict, or other unforeseen danger; and sec- tion 3027 makes it a misdemeanor, for any person, under fifty years of age, to refuse, without a good excuse, to obey the summons of him as a guard by the sheriff. Section 3928 places the guards under the coutrol of the sheriff, and makes disobedience of his directions, in rela- tion to the safe conveyance of the prisoner, a misde- meanor. Section 3929 exempts the officers and guards attending the prisoner from arrest, except for felony and breach of the peace. Section 8936 makes it the duty of jailors to receive and keep prisoners .on their way to the penitentiary; and, lastly, section 3937 makes it an in- dictable offense, lor the prisoner to escape, or attempt to escape. All these provisions, which are to be considered along with the section fixing the sheriff's compensation, and are really to be treated as parts of the same act with that section, indicate most clearly the intention that a convict, in the process of removal to the penitentiary, should be kept within the State ; and they become utterly ineffective and inoperative, as soon as he is carried out of OF ALABAMA. 123 Greene v. McGhcc. the State. The sheriff could not summon guards in an- other State ; persons so summoned could not he indictable, under 91 Alabama statute, for a failure to obey; neither the guards refusing to obey the sheriff's directions in an- other State, uor the convict attempting to escape in an- other, could be amenable to the criminal laws of Alabama; the qualified exemption of the sheriff and his guards trom arrest could not be effectual beyond the limits of the State, and the sheriff could not avail himself of the jails in another State. The provisions of the Code upon that subject cannot be allowed their proper operation, if the sheriff is permitted to convey convicts to the penitentiary through other States ; and the rules of construction, which we laid down at the outset of this opinion, require us to decide, that the sheriff has no authority to carry a pris- oner through another State, and is not entitled to com- pensation for the increase of distance in consequence of his doing so, although he may go upon the usually trav- eled route. The laud route usually traveled, over which he must pass, is the route within the State usually trav- eled. It is urged against the foregoing construction of the statute, that the sheriff is required to make affidavit of the number of miles on "the land route usually traveled ;" that there may arise cases, in which there is no usually traveled land route within the State; and that, in those cases, the sheriff would be unable to make the prescribed affidavit. It is probable that there are court-houses in the Siatc, from which there is no route to the penitentiary which is usually traveled through its entirety, or over which persons are accustomed to pass from the court- house to the penitentiary, in a continuous travel; and it may be, that there is no usual continuous travel from the court-house of Lawreuce county to the penitentiary, along any road within the State. But we cannot think that, in such cases, it was the intention of the legislature to exclude the sheriff froth any compensation. In - cases, a route leading to the penitentiary, and the differ- ent parts of which are usually traveled, and which i? in 124 SUPREME COURT Kin;; and Wife v. Avery. direct course from point to point, is, within the meaning of the law, the land route usually traveled. Tl cent of the court helow is reversed^uid a judgment must be here rendered dismissing the petition ; and the appellee must pay the costs of this court, and of the court below. K. W. Walker, J., not sitting. KING and WIFE vs. AVERY. fpiLL IN BQ0ITY FOR DIVISION ANH A.CCOVNT OF SLAVES.] 1. .! - ■, intent of bill.— Under the act of Feb. 8, 1858, "amendatory o*i ]n • in chancery," (8ession Acts, 1857-8, p. 230,) any ami '!':i bill, either as to par ties or averments, which may mi necessary to meet tbejusti H the case, or to meel any of tin- proof thai will authorize relief, must be allowed by th.- <■'.: mcellor, upon Buch terms as he ra iy deem jnsi and equi- table; but tli does not authorize the allowance of an amen Iment, which would convert the bill of the wife into the bill of the husband, an 1 enables him to a-- irt a claim barred by the statute of limitation j. ''ii< "I Urn mill '■f limitations has barred the husband's right of action, — the sutute i a bar to the relief sought, although the si a tut or) bar not complete when the original bill of the wife was filed. Aitkal from thu Chancery Court of Greene, JIc;,rd before the Hon. Jambs B. Clark. This is the same case which is reported in 28 Ala. 267, under the title of Hair, a<\rrCr $c, r. Avery, et al. The original bill was filed in January, 1852, by James OF ALABAMA. 125 King and Wife v. Avery. Hair, as the administrator of Mildred Walker, deceased, and Etherlin T Croxton, against Bryant Avery and Pink- nev Jones; and sought a division and account of certain slaves, which had been bequeathed by John Hill, the ma- ternal grandfather of the said Mildred and Etherlin, to his daughter, Mildred Walker, (the mother of said Mil- dred and Etherlin,) and her children, and which were claimed and held by the defendants under purchases at execution sale against the husband of said Mildred Walker. The. chancellor sustained a demurrer to the bill, for want of equity; but his decree was reversed by this court, at its January term, 1S56, and the cause was remanded. — See 23 Ala. 267. On the 30th May, 1857, a bill of revivor was filed, in the names of M. V. Lacy, as the administrator dc bonis hm of said Mildred Walker, and James King, and Etherlin T. King, his wife; alleging, that Hair had resigned, and Lacy had succeeded him, as administrator of said Mildred, and that said Etherlin T. had married said James King after the tiling of the original bill. Answers were filed to this bill, by both of the defendants, on the 2-ith June, . 1857. On the 30th June, 1858, (two days after an order had passed for the publication of the testimony,) the bill of revivor was dismissed, on motion of the complainants therein; and on a subsequent da}' of the same term, on the affidavit of the complainants' solicitor, stating that he did not, at the time of filing the original bill, know the fact that said Etherlin T. was then married to said James King, the chancellor granted leave to the com- plainants to amend the original bill, by making it the bill aid King and wife alone: and the bill was amended rdingly. The defendants answered the amended bill, and, among other defenses, pleaded the statute of limita- tions of six years. On final hearing, on pleadings and proof, the chancellor held, that the amendment ought not to have been allowed, as it made an entirely new and that the statute of limitations w;is a complete bar to the relief sought by the bill as amended. He therefore 1 the bill; and hi | us error. 126 SUPREME COURT King and Wife v. Avery. ::ni:k* Rbavis, for appellants. — 1. The amendment properly allowed. -Session Acts, 1857-8, p. 230, § 3; kweil v. Blackwell, 33 Ala. 57. All amendments, proporlv allowed, take effect, so far as the equity of the hill is concerned, as of the date of the original bill. — Blackwell v. Blackwell, 33 Ala. 57; Cain v. Gimon, 36 Ala. 168; 1 Dan. Ch. Pr. 455, and cases cited. It must, then, necessarily follow, that if the statute of limi- tations had not effected a bar when the original bill was filed it cannot avail as a defense to the amended bill ; as in analogous cases at law, where the statute is held' not available as a bar to an amended complaint, if the action was commenced before the bar was perfected, because the amendment relates back to tne commencement of the suit. — Agee v. Williams, 30 Ala. 636; Bradford v. Edwards, 32 Ala. 628. 2. If James King had died, after the filing of the original bill, but before the filing of the amended bill, Mrs. Kin-- certainly might have amended her bill, by stating her marriage and the death of her husband, with- out lottingin thedefense of the statuteof limitations. The cause of action was the wife's; her husband could not have maintained a suit to recover it, without joining her as a co-plaintiff with him; and if he had died before recovering it, it would have survived to her. In such case, if the statute of limitations does not bar the wife, it can neither lowed against the husband alone, nor against both. Merrit v. Doss, ol Miss. (2 George,) 275; Wood v. Riker, 1 Page, 616; Black v. Whitall, 1 Stockton, (N.J.) 572; Williams v. Lanier, Lusbee's (N. 0.) Law R. 30. E. W. Peck, contra. — 1. The statute of limitations had ■led a bar as to James King, before the passage of the act of 1858, under which the amendment was at first allowed; and the amendment cannot, in view of that tact, be said to "meet the justice of the case." More- over, the amendment ought not to have been allowed, because it made an entirely new case, founded on a new title. — Rogers v. Atkinson, 14 Geo. 322. The amended OF ALABAMA. 127 King and Wife v. Avery. bill must be regarded as the suit of the husband alone, being founded on his title, and seeking to recover the property for him; and the decree therein rendered would not, in any fnture litigation, be binding on the wife. — 9 Paige, 247, and cases cited; Story's Eq. PI. § 61. 2. Where new matter is brought forward by amend- ment, which will affect the opposite party prejudicially, the amendment will not have relation back to the filing of the original bill, but will only be considered as pend- ing from the time it was actually filed. — Story's Eq. PI. § 904; Mitford's PI. 380; McDougald v. Dougherty, 11 Geo. 594; Holmes v. Trout, 1 McLean, 1; 7 Peters, 214; Miller v. Mclntyre, 6 Peters, 64; Woodward v. Ware, 87 Maine, 563; Dudley v. Pierce's Administrator, 10 B. Monroe, 88. STOXE, J.— [Jan. 29, 1861.]— The 3d section of the act "amendatory of the proceedings in chancery," (Pamph. Acts of 1857-58, p. 230,) declares, "that amend- ments to bills and answers shall be allowed, at any time before final decree, to meet the justice of the Case; and amendments to bills shall be allowed, by adding or stri- king out new parties complainant or defendant, and to meet any state of proof that shall authorize relief," &c. The terms of this statute are very analogous to several of the most important provisions of the Code, in relation to amendments in suits at law.— Code, §§2403-4. We think the same liberal rules of intendment should he applied to lhe two statutes. Under this statute, we hold, that any change of parties, or of averment, which may become necessary to meet the justice of the case, or to meet tote of (he proof that mill authorize rdief must be al- lowed, «* upon such terms as the chancellor shall deem JU81 and equitable." If the state of the proof authorizes relief, the chancellor has no discretion in the matter her during his life, — /.r- (hen here refer? Obviously to the period of division, the death of Mrs. Breedlovc. Next we have the manner in which these seven parts are to be tltanWs- i sri'RK ME COURT Roberts and Wife v. Ogbourne. 1 of— "to the heirs of the body of Sarah Bledsoe, part." If the testator had stopped there, there would be do room to doubt that the will would have operated a plete gilt of that one part, to take eftect at that time, in favor of the persons answering the description of heirs of the body of Sarah Bledsoe. The words which follow simply postpone the enjoyment of the property by the legatees during the life-time of Mrs. Bledsoe, by reserv- ing to her the use and benefit of the same during that time. The qualification attached to Mrs. Bledsoe's use of the property, "not to sell or dispose thereof," (whether valid or not,) is at least indicative of the intention of the testator to give only a use, and not a property or estate in the corpus of the legacy. The heirs do not take on the death of Sarah Bledsoe, but they then come into the en- joyment of that which they took on the division made during her life-time, The term "heirs of the body" is, therefore, used to describe persons who take an interest before the death of Mrs. Bledsoe ; and hence the persons answering that description take, not as her heirs, but di- > from the testator, as purchasers under the will. Mr. Fearne says, that when the words ''heirs," &c, "op crate only to give the estate imported by them to the heirs described originally, ami as the persons in whom that estate is considered as commencing, and not deriva- tively from or through the ancestor, they are properly words of purchase."— Fearne Rem. 79, 194. The attempl to bring this case within the rule in Shel- ley's case— erroneously so called, .when applied to person- alty— rami.. • ed, without transposing and omitting words found In the will, and adding others not used by the testator. The proposition is, that the clause as it ! -~ is l1 "' same in effe< t as if it read thus- "To Sarah during her Kfe-time one part, but not to sell or dispose thereof, and after her death to the heirs of her body." This is uol what the testatoriias said. He gives the one part to the heirs of the body of Sarah Bledsoe, rving to her simply a us< during her life-time; and this use he studious, to distinguish from a prop- OF ALABAMA. 135 Roberts and Wife v. Ogbourne. erty in the corpus, by denying to her the right to sell or dispose of it. The words found in the will give to the "heirs of the body," &c, the entire property in the cor- pus of the legacy ; simply postponing the time of its en- joyment, in order that Mrs. Bledsoe may have the tem- porary use. The words as transposed, and added to, give to Mrs. Bledsoe the property in the corpus during her life, with remainder to the heirs of her body. In the clause as it stands, the idea of a remainder is studiously excluded, while in that proposed as a substitute, it is the controlling and fundamental idea. In the will as it was written by the testator, while the use of the property is secured to Mrs. Bledsoe, this use is clearly separated from the title to the corpus of the property, which vests at the time of the division in the persons designated as the heirs of the body of Sarah Bledsoe. These heirs take ( the entire property, not a remainder after a life-es- tate ; and the reservation in favefr of Mrs. Bledsoe is not of the thing itself, but of the use and benefit for a speci- fied time. In this respect, the case is distinguishable from all ttiosc which have been held to fall within the rule in Shelley's case. — See Shepherd v. Nabors, 6 Ala. <-l; Reyes' Chattels, § 350 (a), §202; 2 Story's Eq. S B45{a); Wilks v. Greer, 14 Ala. 437-442; Golding v. Golding, 24 Ala. 125. It is to be borne in mind, that by the seventh clause of his will, the testator directs that, on the death or inter- marriage of his widow, all his real estate shall be sold to the best advantage; and the language of the succeeding clan-" must be construed with reference to this provision. Although there i< no express allegation to that effect, be presumed that the ezecotor sold the land as directed, oh tbe death of Mrs. Breedlove; and the ex- hibit attached t<> the bill seems to confirm this presump- tion. At all events, the words of the will must 1"' <"n- strued as if his directions had been obeyed. La ml ord I to be sold is regarded a For every purpose i ean ■ intent of the t< Btator. Clark t. Clark, 3] I was held, that the 130 SUPREME COURT Roberts and Wife v. Ogbourne. bequest of the use of the residue of the testator's per- sonal estate (which was directed to be sold), for the life of the legatee, or for auy shorter period, does not entitle such legatee to the possession of the fund. The executor should retain the fund in his own hands, and pay over the income thereof to the legatee as it accrues ; and if the executor suffers the capital to go into the hands of such legatee, to enable him to collect the income himself, he must take sufficient security from the legatee to insure the return of such capital. — See, also, Lovenhoven v. Shu- ler, 2 Paige, 122. This court has held, that the proper practice in the chancery court, in such cases, is to give the legatee for life the option of taking the mouey upon his executing a suitable bond, and, in case of his failure to do so, then to order the money to be let out on loan, and the interest collected anuuall} T , and paid over to him.— Mason v. Pate, 34 Ala. 392. But, if we were to concede that Mrs. Bledsoe took a technical Y\f estate, not a mere usufructuary interest; still the rule would not apply, if the remainder is to vest daring her life, in certain persons described as the "heirs of her body;" for that fact would negative the idea, that these words were to be construed in their technical sense. Wherever these words are used as " descriptio personarwnv" and not as comprehending the whole line of descendants in infinitum, they are words of purchase, not of limitation, and the rule in Shelley's case has no application. Mr. Fearne says, that the inquiry, in reference to the application of the rule in Shelley's case, is reducible to two siinploquestions, viz.: "Is the limitation to the heirs, &c, so calculated and directed, that the person claiming under it must entitle himself merely under the descrip- tion of heir of the species denoted by the words in their technical sense? And if so, is there anything to restrain the same words from equally extending to and compre- hending all other persons successively answering the same description, or from entitling them alike under it, and co nomine? A negative answer to either branch of OF ALABAMA. 137 Roberts and Wife v. Ogbourne. this inquiry seems to exclude the application of the rule." Fearne Rem. 199. We have already expressed the opinion, that the words "heirs of the body" were here used as descriptive of par- ticular persons, who were to take an interest under the will during the life of their ancestor, and not as embra- cing all other persons who might successively answer the description of "heir of the body of Sarah Bledsoe," un- derstanding that expression in its technical sense. This being so, both branches of the inquiry proposed by Mr. Fearne must be answered in the negative. The view we have taken derives support from the fact, that Sarah Bledsoe had children living at the date of the will, who might take under it, if we understand the words in their popular, not in their technical sense ; that Mrs. Bledsoe had received advancements from her father during his life-time, and that he made a further separate provision for her by his will ;' that she was at the time a married woman, and that her father must be presumed to have known that a gift to his daughter would enure to the benefit of the husband, to the exclusion of her children. Our conclusion is, that the terms "heirs of the body of Sarah Bledsoe," were intended as descriptive of the children of Sarah Bledsoe who might be living at the time appointed for the division of the property, namely, the death of the testator's widow; that the persons thus described take from the testator directly, as purchasers, and not through Mrs. Bledsoe in succession, as her heirs. Hence the rule in Shelley's case has nothing to do with the case.— See Woodley v. Findlay, !) Ala. 720; Dunn v. Davis; 12 Ala. 135; Powell v. Glenn, 21 Ala. 4G6; Dur- den v. Burns, b' Ala. 368; Dudley v. Porter, 10 Ga. G1S; Hodgson v. Bassey, 2 Atk. 89; Keyes' Chatt. §102. Decree reversed, and cause remanded. STONE, J. — I am not able to agree with cither the reasoning or conclusions of the majority of the court, as expressed in their opinion. I have found no case, and t apprehend none can be found, which agrees with this ii 10 138 SUPREME COURT Roberta and Wife v. Ogbourne. its facts, aqd which asserts that heirs of the body take as purchasers. In Baldwin v. Carver, (1 Cowp. 313,) Lord Mansfield said, "The rule of law most undoubtedly is, that a devise to the heirs general or special of a man alive, is void." In the same case, which in its principles is not distinguishable from this, -save in the feature that there was in that ease an attempted bequest over of the personalty if the life-teuant died without heirs or issue, that same learned judge remarked, "It strikes me, as at present advised, that the subsequent limitation of the personalty is too remote." There is a rule, well defined and sensible, that "where a bequest is to children or grandchildren generally, pay. iible at 'a certain time, or at the happening of an event, then all who lill the description and are in esse at the lim<\ or at the happening of the event, take." The spirit ai.d »f this rule, L apprehend, lie in the following two principles: 1st, there is a policy of the law to so construe the language of the testator, as to let in the hie number of beneficiaries; and, 2d, when, by the terms of tie- bequest, the property becomes ne- arily divisible — namely, by the occurrence of the time, or the happening of the <>■. J'i A transcript from th< I of ordinary, in Georgia, properly certified nnd 0; containing a copy of a will, an affidavit beneath of the Bubsciibing witnesses, purport: ing t" have, b sen made before ".I. Thigpen, J. 1'.," to the effect '• that be ■ i ' bis name al the last part of the with- in instrui mting;" followed by an entry, stating that B. 8. and .!. Si v orn executors ;'" and other entries, showing thai o appointed discharged several executorial du« d by the court as executors, — must, under the constitution and laws of that State, ae proved in this case, be OF ALA BAMA. Ul Jemison v. Smith. \ regarded as showing the probate of the will, and the appointment and qualification of the executors. 4. Presumption of probate from lapte of time; — Author: ; on 'heV question, whether the probate \if a will, nearly sixty years old, >■ would be presumed from lapse < I time, under the circumstances of this ease. 5. Redundant evidence. — Where tluVprobate of a will is shown by a transcript from the records, of the proper court, duly certified, other parts o( the transcript, containing entries relating to the tator''s estate, which can have no other cil'eet than to strengthen the conclusion that the will was admitted, to probate, are merely redundant evidence; ami their admission as evidence is, almost, error without injury. G. Admissions against interest. — The declarations of a person wi- the possession of slaves, to the effect "that they had been lo to him by the widow of S., and were held under the will of S., •to be returned at her death, to be divided as directed l>v sail! will," are competent evidence against a sub-Burchasex 1 from lam by subsequent contract ; so also are his declarations, " that there was a dispute about the title, and be would only sell such title as he got from the sheriff, as he was informed that the heirs oT S. would claim them at the death of his widow." lendment of complaint. — A complaint may bo amended, (G de, [OS,) by striking out the name of one of the . who was dead at the commencement of the suit. 8. Motion to suppress depositions taken before, amendment olaint. The fact that the complaint is amended, alter depositions been taken, by striking out the name of one of the plaintiffs. who was de.id at the commencement of the suit, is not a uid for the suppression of such depositions. of estate fur life, with /< t r ;' uncertainly; remote- ness. — " I will and bequeath to my beloved wife Elizabeth one ne- gro woman, named Jane, to her her life-time; then slit, arid all h< r increase from the date '97, to be equally divided among bhe five children, if living at that time; if not, to their loirs lawfully □ Of their body ; if none such heirs, to be ennally divided ammi- themselves when the youngest child comi and after my wife's life-time, the wench to be hired to support her ■children; if her labor will not support her children, th«\ all help her, 08, they are to reap the property : and my d< sire is, that the children should be kept together, and schooled i pon the biro of the negroes, until tiny come of age to demand them— the at twenty-one, the girls at sixteen yea and till then. tin' hiic t" go to the Support of :dl the ehildi. n. I oth black and white. My desire is, that if any of the children should die I they all should have his .nally di\ 1 142 \ SUPREME COURT Jemison v. Smith. among them; and if any one of the negroes dies, they all shall • make him equal- with themselves." Held, that this bequest was not void for uncertainty, but created a life-estate in the widow, with remainder over to such of the testator's five children as . might then bo living, and the lin. dants, then in exist* ■, of those who were dead ; and that the limitation in favor of soph lineal descendants was not void for remoteness. Appeal front the Circuit Court of Sumter. Tried before the Hon. William 8. Mtjdd, Tins tuition was brought by James B. Smith and oth- ers, who were the children, grandchildren, and great- grandchildren of Sfon Smith, deceased, against William II. Jemison ; and was commenced on the 12th April, 1857'. The defendant pleaded — 1st, the general issue; 2d. tli" statute of? limitation ol six years. The plaintiffs claimed the slaves in controversy, under a clause in the will of their tin' aid Sion Smith, deceased, which was in the following words: "I will and bequeath to my beloved wife, Elizabeth Smith, one negro woman named Jane, toher her life-time; then she, and all her increase from the date nirtety-s< wn, to be equally divided among the live children, if living at that time; if not, to their heirs lawful! begotten of their body; if none such heirs, to be eqnally divided it among themselves when the youngeety child comes of age ; and after my wife's life- time, the wench to be hired to support her children ; -if labor will not Bupport her children, they all must help her, as they are to reap the property; and my desire is, that the children should be kept together, and schooled upon the hire of the negroes, til they come of age to de- mand them — the 6oya at twenty-one, the girls at sixteen years of age ; and til then, the hire to go to the support of all the children, both black and white. My desire is, that if ary one of the children should die hefore it comes of ag< 1 , that they all should have his legacy equally divi- ded among them; and if (try one of the negroes dies, they all shall make him equal with themselves." The slaves in controversy were the descendants of the woman OF ALABAMA. 143 Jemison v. Smith. Jane, mentioned in the above-copied clause of Sion Smith's will ; were brought to this State in 1825, by one A. M. Griffin, who had married one of the testator's granddaughters j were sold under execution against said Griffin, and were bought at the sheriff's sale by Clai- borne Griffin, who, about the year 1840, sold them to the defendant, at less than their full valiie. The testator's widow died in May, 1851. At the May term, 1858, (Hon. A. A. Coleman pre- siding.) the plaintiffs asked leave to amend their com- plaint, by striking out the name of John Jordan, one of the plaintiffs, who was proved, by .the depositions then on file, to have been dead at the commencement of the suit ; and the court allowed the amendment, against the defendant's objection; to which a bill of exceptions was reserved by the defendant. At the jSTovember term, 1858, when the cause was called for trial, the defendant moved to suppress the depositions which had been taken by the plaintiffs before the com- plaint was amended, as above stated, because they were taken before the said amendment was made. The court overruled the motion, and allowed the depositions to he read; to which the defendant excepted. On the trial, the plaintiffs offered in evidence a tran- script from the records of the court of ordinary of Wash- ington county, Georgia, properly certilied under the act < ; 2d, an affidavit, of which the following is 1 1 : " State of Georgia, "I Frederick Cooper, being du- Wushington county. | ly sworn, saith, that he believes thai name U> the hist part of the within rument of writing. " Frsderii a." " Su-..rn to, before me, this 21at day I of Manh, 1,799. J. Thigpen, .1. P." 144 SUPREME COURT Jemisbn v. Smith. Beneath this certificate was an entry, or memorandum, in those words: "Britton Smith, Jordan Smith, sworu itors." The transcript also contained a ''copy of the bill of appraisement on the. estate of Sion Smith, de- ceased," wbicb was dated the 12th August, 1799, and purported to be "certified" by three "sworn apprais- ers;" a "copy of die bill of the sale on the estate of Sion Smith," dated November, IT!''.', and purporting to be "certified by Britton Smith and Jordan Smith, execu- tors;" a "copy of second inventory and appraisement," dated the 27th December, 1799, and purporting to be "certified and sworu to, 8th January, 1800," by Jordan Smith, before "T. Watts, cl'k;*' an affidavit by Eliza? beth Smith and Frederick Cooper, taken by a justice of the peace, on th August. IT!''.', to the eft'ect that they, "having boon removed by the inferior court of the county and State aforesaid from their administration on the estate of Sion Smith, deceased," "bave resigned into the hands of Britton Smith ami Jordan Smith, who were established executors to the last will and testament of said Sion Smith," all the property in their hands belong- ing to said estate; a receipt, dated the 8th August, 179-9; and purporting to be given by lb-it ton Smith and Jordan Smith, "executors to said estate," for the property de- livered to them by Elizabeth Smith and Frederick Coop- er: and several entries, purporting to show the annual income and expenditure of said estate, and to be sworn to by Jordan Smith, before a justice of the peace, in the following form : - Book A., page :'.7. 1802. The income of Sion Smith's tate, tie- hire <>f fun- slave-, amounting to.. $282 87 Expenditures of Sion Smith's estate, amounting to 101) 03 Services excepted. Jordan Smith, Ex'r." " The justness of the above sworn to, ^ this 7th December, 1803, before me. I % 1. Irwin,' J. P." I OF ALABAMA. 115 Jemison v. Smith. The defendant objected to the reading of this entire transcript, as a whole; and also to that part which pur- ported to be a copy of the will of Sion Smith, and to the remaining portions, separately. The court overruled each of the objections, and allowed the transcript to be read ; to which exceptions were reserved by the defendant. During the further progress of the trial, the court al- lowed the plaintiffs to prove, against the defendant's ob- jection, "that A. M. Griffin, while he was in possession of the slaves Judy and her children, said, that they had been loaned to him by Sion Smith's widow, and were held under Sion Smith's will, to be returned at her death, to be divided as directed by said will;" also, '• that Clai- borne Griffin, while he was in possession of said slaves, said,- that there was a dispute about the title, and he would only sell such a title as he got from the sheriff, as he was informed that the heirs of Sion Smith would claim them at the^death of his widow." To the admission of these declarations exceptions were reserved by the de- fendant. The plaintiffs read in evidence the constitution and several statutes of the State of Georgia, relating to the organization and jurisdiction of courts of ordinary, and abolishing estates-tail, and the case of Jordan v. Cam- eron, reported in 12 Geo. Rep. 2G7 ; and the defendant read in evidence the case of Gray v. Gray, reported in 20 Geo. Rep, 804; all of which are made parts of the bill of exceptions. The case of Jordan v. Cameron was a bill in chancery, filed by the heirs, assignees, and legal representatives of Sion Smith's live children, in 1852, to laves, who were alleged to he the dc- dants of the woman Jam'; in which the court held, that the will of Sion Smith, being more than tifty years old, "was admissible as an ancient paper," although the probate was defective. In tb< ; ' Gray v. Gr«y,the following points wire decided: 1. In G • it was irly policy to abolish the English law of entails and it U uded to preserve, undivided, landed :i families. 2. A beqae8l of personal • roperty, 146 SUPREME COURT Jcmison v. Smith. which would create an estate-tail under the English statute de donis, vests an absolute, unqualified, fee-simple estate in the first taker. 3. The construction of the statute de donis must be determined by the English de- cisions. 4. Under a bequest, of slaves to the testator's two daughters Jane and Sarah, to be equally divided be- tween them; "and should the said -lane and Sarah, or either of them, die without an heir begotten of their bodies, then their part or parts to be equally divided be- tween Polly Morrison, mv said sons, and the surviror," the limitation over is void for remoteness. The court charged the jury as follows: "1. That if they should find for the plaintiffs, the plain- tiffs would he entitled to recover reasonable hire from the death of Sion Smith's widow, as shown by the proof. "2. That the bequest of Jane and her increase, in the will of Sion Smith, to his widow and children and the heirs of their bodies, was not void for uncertainty. •:;. That the provisions of said will, under which the plaintiffs, as children, grandchildren, and great-grand- children of Sion Smith, claim in this action, are not void under the laws of Georgia in evidence; and the said grandchildren and great-grandchildren can take under said will. "4. That if they believed all the evidence before them, they had aright to presume that the said will was proper- ly admitted to probate; and if they so believed and pre- sumed, the copies before them were evidence of said will, to the same effect that the original would be." The defendant excepted to each of these charges; and he now assigns them as error, together with all the other rulings of the court to which he reserved exceptions. Tuknkk Rbavis, for appellant. — 1. Section 2403 of the Code docs not apply to case in which one of several plaintiffs is dead at the commencement ot the suit. Such a suit is a nullity, or, at least, ia subject to be dismissed when the fact is brought to the notice of the court. OF ALABAMA. 14T Jemison v. Smith. Terms cannot be imposed on a dead man, nor can he be compelled to pay costs. 2. The depositions taken before the complaint was amended, ought to have been suppressed, because the amendment effected a substantial change of parties — Horback v. Knox, 6 Burr, 377. In the cases cited to this point for the appellee, the amendment worked no change of parties. 3. The transcript from the records of the court of or- dinary in Georgia, containing what purported to be a copy of the will of Sion Smith, ought not to have been admitted. It docs not show that the proof of the will was taken by the court; nor that the probate of it was granted by the court; nor that it was ordered by the court to be recorded ; nor that letters testamentary were granted by the court ; nor that any executorial bond was given ; nor that any settlement by the executor was acted on 1)}' the court; nor, in fact, that any action of the judi- cial mind was had on any ot the matters therein con- tained. All the proceedings appear to have been ex-partc, and all the affidavits to have been made before a justice of the peace. Under the constitution and statute- of Georgia, which were read in evidence, cfmrts of ordinary arc courts of limited and special jurisdiction ; conse- quently, the record must affirmatively show the facts ne- ftry to sustain the jurisdiction. — McCartney v. Cal- houn, U Ala. 110; Steen v. Stcen, 25 Miss. 530; Gunn v. Howell, 27 Ala. 663; Wyatt v. Kambo, 21) Ala. 510; Lamar v. Commissioners' Court, 21 Ala. 7?2 ;' Commis- sioners' Court v. Thompson, 18 Ala. 694. In Jordan v. ion. 12 Geo. 267, the demurrer admitted, "that the will was proved and admitted to record in the court of ordinary, and that letters testamentary were issued there- on;" and yet the court expressly say, that t-he will was not property admitted to record, and was admissible only :i ancient paper. I. Lf the will was not probated, the paper purporl to bf :i copy ought not to have been received for any purpose. The rule authorizing a'will, more than thirty 148 SUPREME COURT ■ Jemison v. Smith. years old, to be read iti evidence as an ancient document, without proof of probate, applies only to wills devising real estate; which, in England, where the rule originated, pass the title to real estate, without probate ; but a will of personalty cannot be received as evidence of title, un- til it has been probated. The rule applies, moreover, only where the original paper is produced, or a sufficient predicate is laid for the introduction of secondary evi- dence.— Mitchell v. Mitchell, 3 S. & P. 33. 5. The declarations of A. M. Griffin were not explana- tory of his possession, and were clearly inadmissible. — Allen v. Prater, 30 Ala. 458; Briee v. Lide, 30 Ala. 047; Perry v. Graham, 18 Ala. 822; McBride v. Thompson, 8 Ala. 650; Abney v. Kingsland, 10 Ala. 355. 6. The declarations of Claiborne Griffin were mere hearsay, and were equally inadmissible. 7. The defendant, being in lawful possession of the slaves, was not liable for hire from the death of the tenant for life, but only from the time a demand was made, or from the commencement of the suit. — Brock v. Ileadon, 13 Ala. 370; Vaughn v. Wood, 5 Ala. 304; Lawson v. Lay, 24 Ala. l&L 8. The bequest, under which the plaintiffs claim, is void for uncertainty. No "sensible construction can be placed upon the words, which will harmonize all parts of the' clause. The heirs of the body, it declares, take noth- ing, unless all the five children be dead at the death of the mother; and if they all be dead, and there be "none such heirs," the negroes are "to be equally divided among themselves." In the following cases, although the lan- guage was not more ambiguous or uncertain than in this case, the bequest was held void for uncertainty: Hoffman v. Ilankey, 3 My. & K. 376; Newton v. Richards, 2 Bea- vau, 112; Mohun v. Mohun, 1 Swanst. 301; Abraham v. Alinan, 1 Russell, 500; Bayeaux v. Beaux, 8 Paige, 333. •0. The will attempts to create an estate-tail, or a limi- tation over whieh is too remote; both of which arc void in Georgia, where the will was made. — Gray v. Gray, 20 Geo. 808; Marbury & Crawford's Digest, 220, § 5. OF ALABAMA. 149 Jemison v. Smith. Geo. G. Lyon, contra. — 1. Section 2403 of the Code authorizes an amendment of the complaint, by striking out the name of a dead plaintiff, equally with a living plaintiff; and no inconvenience can result from such an. amendment. 2. The motion to suppress the depositions was properly overruled. — Agee v. Williams, 30 Ala. 636; Goldsmith, Forcheimer & Co. v. Picard, 27 Ala. 142. 3. The transcript was properly certified under the act of congress, and was competent evidence. That the copy of the will was properly admitted, see 11 Ala. 721 ; 8 Ala. 390; 24 Ala. 260; 6 Humph. 501; 10 Bin. & Mar. 78; 2 U. S. Digest, 234, §§ 643-15. ' 4. The declarations of A. M. Griffin and Claiborne Griffin were made while they were respectively in pos- session of the negroes, and were in disparagement of their title; consequently, those declarations were admis- sible evidence against the defendant, who claimed under said Griffins.— 19 Ala. 722; 27 Ala. 458, 523, 651; 28 Ala. 552, 236; 29 Ala. 174, 188,457. 5. As to the correctness of the first charge given by fee court, see 12 Ala. 135; 23 Ala. 377; 21 Ala. 151; Story on Bailments, § 414. 6. As to the correctness of the second charge, see 21 Ala. 459; 23 Ala. 818; 25 Ala. 292. 7. As to the correctness of the third charge, see same cases; also, 18 Ala. 149; 17 Ala. 62; 7 Ala. 246; 2 Jar. on Wills, 51, note 1; 3 Porter, 452. 8. As to the correctness of the fourth charge, see Gantt's Adm'rv. Phillips. 2:] Ala. 275, and cases there cited. A. J. WALKER, C. J.— [Feb. 12, 1861.]— If the will of Sion Smith was not admitted to prebatc, it follows, that it cannot be read as evidence of title to personal property, ami that a copy of it cannot be certified, so. as to become evidence under the act of congress of 1790. It is, therefore, a very important question, whether the transcript of mccry court for Washington county, Georgia, shows that there was a probate of the will. All 150 SUPREME COURT Jemison v. Smith. that we find in the transcript, bearing upon this point, is an affidavit by one of the subscribing witnesses, that " he believes that he assigned his name at the last part of the within instrument of writing," taken before "J. Thigpen, J. P. ;'' and following the affidavit, an entry that the executors were sworn. The record also shows, that the executors discharged several of the duties of the executorial trust, and were recognized as executors by the court. [2.] We must judicially know, that the proceedings of courts of the grade and jurisdiction of the court of ordi- nary in Georgia, as indicated by the constitution and laws of the State in evidence in this case, are lamentably loose, and that their records are made up with peculiar carelessness. It is the duty of courts, in which the va- lidity of such proceedings is assailed, to construe the lanofuao-e used in a lisrht as favorable to their maintenance as it will admit, without undertaking to supply that which is absolutely wanting. — King v. Kent, 31 Ala. 542. [3.] In the probate of wills, there is but little formality. It seems that there was, under the ecclesiastical law, no formal announcement of the judgment of the court upon the sufficiency of the proof; but the proof made was en- dorsed upon the will, and letters testamentary issued to the executors. — 2 Swinburu on Wilis, 806; 1 Williams on Ex. 239; Dayton on Surrogates, 191; Slaughter v. Cunningham, 21 Ala. 260. It is not shown to us, that, at the time when the will now under consideration was recorded, there was any law in Georgia, requiring any greater particularity. Indeed, the exemplification of a will, with no greater evidence of probate, was by this court, in Slaughter v. Cunningham, supra, held admissi- ble in evidence, upon certificates pursuant to the act of congress of 1790. The only manifestation of the judg- ment of the court upon the sufficiency of the proof, which seems to have been in practice given, where greater form- ality was not exacted by the statute, was the letters tes- tamentary, and the recording of the instrument. We OF ALABAMA. Jemieon v. Smith. accordingly find the expressions probate and letters tes- tamentary used as convertible terras. — 1 Williamson Ex. 239; Dayton on Sur. 194; 1 Jar. on Wills, 214, chap, ix, § 1 ; King v. Netherseal, 4 Tewm, 258. In the case of Lay v. Kennedy, (1 Watts & Ser. 390,) there was no judgment as to the sufficiency of the proof; and the court said: "Although there is no formal decree, that the proof of the will was deemed good; yet that the will was admitted to probate we cannot doubt, as otherwise the grant of the letters of administration would be preposterous and absurd." It is thus evident, from the practice in the proving of wills, from the manner in which the terms probate and letters of administration are used, and from ^the very nature of the acts themselves, that the court, in spreading the will upon the record, and granting to the executors authority to execute it, does assert the estab- lishment of the will in its judgment. We think, there- fore, that the record, upon a fair construction, must be regarded as asserting the appointment and qualification of the executors, and that the will was put upon the rec- ord; and these facts involve in themselves an assertion of the probate ot the will. The sufficiency of the proof was a question lor the court which took the probate, and its decision cannot be collaterally assailed. It is, therefore, not important for us to inquire, whether the affidavit in the record should be intended to be the only proof upon which the court acted, or whether it was sufficient. [4.] The view of the subject which we have taken, also renders it unnecessary for us to inquire, whether, from lapse of time, the probate could be presumed, under the circumstances shown; but upon that point we subjoin a list of authorities, which pertain to the question, whether Such presumption might be drawn: Jordan v. Cameron, 12 Georgia, 267; Calvert v. Fitzgerald, Littell's Sel. Cas* -392; Battle v. llolley, 6 Greenleaf, 145; Giddihgs v. Smith, 15 Verm. 344; Mc Arthur v. Carrie, 82 Ala. 7."., and cases cited. [5.] The other parts or the Georgia record, besides 152 SUPREME COURT Jemison v Smith. the will, affidavit, and appointment of executors, could have had no other effect, than to support the conclusion that the will was admitted to probate; and there could be no injury from their admission in evidence. [6.] The declarations of A. M. Griffin and Claiborne Griffin were admissible in evidence. They were the declarations of persons, under whom the defendant held, adverse to their interest; and were relevant, because they contributed to the identification of the property, if for no other reason. [7-8.] The two points made by the appellant, that the court had no authority to allow an amendment, by striking ontthe name of a plaintiff who was dead at the commencement of the suit, and that depositions takeif. before the amendment should have been suppressed, are alike unmaintainable. The statute authorizes the making of amendments, by striking out the names of parties; and we can perceive no reason for restricting the authority to cases where the part}' was living at the commencement of the suit. As the amendment did not vary the issue, or render the testimony inapplicable, and there was noth- ing in ..' ^ Kifct that the deposition was taken before the amendment calculated to injure the defendant, neither justice, nor any rule of practice known to us, required that the depositions should be suppressed. — Goldsmith v. Picard, 27 Ala. 142; Agee v. Williams, 30 Ala. 636. [9.] We cannot agree that the clause of the will, under which the plaintiffs claim, is void for uncertainty. "In order to avoid a will for uncertainty, it must be incapa- ble of any clear meaning." — Mason v. Robinson, 2 Sim. & Stu. 295. Such is not the character of the item of the will which we are called upon to construe. We think we take no undue liberty with the words, when we inter- pret it as creating a life-estate in the widow, with re- mainder to tin' live children of the testator, if living at her death; and if any of the five children should die before the death of. the widow, then to such of the five children as might be living at that time, and the then existing heirs of the body of such as might be dead; and if any OF ALABAMA. 153 Jemison v. Smith. oi the five children should die before the death of the widow, and leave no descendants, then to the survivinsr children. The exigency of this case does not require us to extend our construction farther. It is unnecessary for ua to inquire into the effect of the provision, "that if any one of the children should die before it comes of a conduct the partnership business successfully, that stipulation must be either changed or disregarded; that they have refused to correspond with the complainants, on matters connected with the partnership business; that the state of feeling between the parties justifies the apprehension, that t?ie joint business can be no longer prose- cuted to the mutual advantage of all the partner:-; ; that there is no partnership property which might be sacrificed by a sale, and that a dissolution would not probably inflict any material injury on either party. 2. Jurisdiction of equity, in such case, not affected by stipulation provid- ""J for reference to arbitration. — A stipulation in articles of partner- ship, providing for a submission to arbitration of all matters of controversy which may arise among the partners, does not take away the jurisdiction of equity to decree a dissolution. 3. Admission of new partners.— -New members cannot be introduced into an existing partnership, even by a majority of the partners, without the consent of the others; yet, if the others recognize and treat the new members as partners, and continue the business with them under the original articles, this is sufficient to make OF ALABAMA. 157 Mealier v. Cox, Brainard & Co. . them partners, and to render the original articles operative as be" tween them. . 4. What constitutes partnership. — A contract between two . >a: companies, engaged in carrying passengers and freight between Montgomery, Mobile and New Orleans, by which'it was stipulated, that each company should furnish a specified number of boats, of which the respective owners should retain the property and as- sume the risk ; that all losses, injuries, and damages, caused to third persons or their property, whether by accident, negligence, want of skill, or other cause, should be borne solely by the owners of the boat causing or sustaining such loss or damage ; that the compensation of agents, at specified points, to attend to the joint . business, and all losses paid for injuries and damages on cotton shipped from the river above through to New Orleans, should be a charge against the joint fund, and be borne by the parti' cording to their respective interests ; that (he proceeds and earn- ings of each boat, deducting therefrom the running expenses, should be ascertained monthly, and be divided between the par- ties in proportion to the number of boats furnished by them re- spectively ; that uniform prices should be established, and through tickets be good on all the boats; and that neither party should be. interested in any other boat running on the same route, or make any private contract for his own advantage, which might be inju- rious to the others, — constitutes the parties partners inter seee. Appeal from the Chancery Court at Mobile. Heard before the Hou. M.- J. Saffold. On the 7th July, 1858, Cox, Brainurd k Co., (a firm composed of Henry L. Jayne, F. M. Johnson, and W. F. James,) J. M. & T. Mealier, (a firm composed of James M. Meaner and Timothy Meaner,) Byrnes Mealier* and Stewart Cayce, all of whom were theu engaged in run- ning steamboats on the Alabama river, carrying passen- gers and freight between Montgomery, Mobile and New Orleans, entered into a contract, of which the following is a copy : "Articles of agreement, made and entered into at Mo- bile, this 7th July, A. D. 1858, by and between the linn of Cox, Brainard & Co., of the first part, and the firm of J. M. & T. Mealier, Byrnes Mealier and Stewart Cayoe, of the second part, all of the city of Mobile. . that the said parties, each being owners of steamboats em- 158 SUPREME COURT Cleaner v. Cox, Brainard & Co. ployed in carrying freight and passengers to and from Mobile, have agreed to employ and run steamboats in the trade of the Alabama river, and to New Orleans, in concert; each party to furnish, properly equipped and fit for service, at their own cost and expense respectively, a certain number of boats, as agreed between them, and to divide between them, in certain proportions, the net pro- ceeds of their freight, passage-money, and other earn- ings, as they may accrue, after satisfying their running expenses. Whereupon, to accomplish said object, the said parties have contracted, agreed, and mutually stipu- lated with each other, as follows:" (The first three clauses provide, that Cox, Brainard & Co. shall furnish ten, and the other parties two steam- boats, which are specified by name, and a particular part of the business allotted to each, — some to run between Mobile and New Orleans, and others between Mobile and Montgomery; some during the winter season, or high water, and others during the summer season.) '■4. It is further mutually agreed between the parties, that each of them shall, during the continuance of this agreement, constantly keep ready provided, equipped and fit for service their proportion of boats as herein- afler stipulated, so that they may perform the service re- quired of them; and, in the event of the loss or disabling * of any of paid boats, they shall be replaced, when wanted, by the proper party, by others fit for the service, as near as may be. "5. It is also agreed, that the said several boats shall be and remain the property of each of the parties re- spectively, as heretofore ; that they shall continue to be the owners of said boats, and they shall be at the risk of their respective owners in all things. All repairs, such as are usually made by the crews of the boats while in use, causing no delay in the running of the boats, shall be made by their crews respectively; but no delay shall be allowed, to the end that repairs may be made by the crews; and where repairs are needed, they shall be promptly made, by proper workmen, employed aud paid OF ALABAMA. 159 Mealier v. Cox, Brainurd & Co. by the owners of the respective boats at their own cost and charges, so that no delay shall occur, but that the boats shall be promptly fitted to perform their service; and if any boat be so disabled that the necessary time for repairs would cause the loss of more than one trip, then the proper party shall furnish another boat, capable to perform the service, in the stead of the disabled boat; and if the need of repairs, in any case, shall cause the loss of a trip of any boat, then the expenses of said boat, during the time lost, shall be at the charge of the owner. "6. All losses, injuries, and damage, either to the ves- sel, cargo, crew, or passengers, or to third persons, wheth- er caused by accident, negligence, want of skill, or oth- erwise, shall be at the sole charge of the owner ot the boat causing or sustaining the loss; and the other party shall not be chargeable, nor called on, nor be responsible for any such loss, in any manner, either to the other party, or to third parties; and each party shall answer exclusively for all losses, and boar the same, and each part}* shall be exclusively responsible for its own officers and servants. "7. It is furthermore agreed, that the total amount of the proceeds and earnings arising from the use of said steamboats shall be ascertained and divided monthly be- tween the said two parties, and paid over to them re- spectively — say to Cox, Brainard & Co. four-fifths, and to the said Meahers and Cayce (the said parties of the second part) one-fifth; that correct and full accounts shall be kept by each boat of its receipts and expenditures, and of all its business, and that each party shall account to the other of all its business concerning the subject-mat- ter of this contract; that nothing shall be charged, but the actual expenses of the running department of said bonis, exclusive of the repairs, value of the use of the boats, insurance, taxes, &c.; the amount to be divided to be stated by computing the earnings, and deducting therefrom the wages, provisions, wood, supplies, and all daily expenditures properly belonging to the running of the boats for the time being. All bills paid must be filed, 160 SL T PREME COURT Meaher v. Cox, Brainard & Co. and proper vouchers taken, in every instance, for money paid; which, together with the cash and an account thereof, with the books in explanation, shall be returned at the end of every trip, to the respective offices in Mo- bile of each of the parties, for the examination of the other party; and monthly settlements between the par- ties shall be made, and divisions of the proceeds, as afore- said. "8. It is agreed, that the prices of freight, passage, &c, shall be uniform on all the boats, as fixed by the par- ties from time to time ; and that through tickets shall be good on all the boats; and that no private contracts shall be made by either party, contrary to the meaning and true spirit of this agreement, nor exclusively beneficial to either, nor injurious to either; but both shall, in good faith, so act as to promote the joint advantage, in a spirit of fairness and equality of right. '"J. It is expressly stipulated, that, during the contin- uance of this contract, neither party shall, under any pretense, run, or be interested, directly or indirectly, in the running of any other boat or boats on the Alabama river, or between Mobile and Xew 'Orleans; the profits of all said trade bein£ for the joint account, under this agreement, as herein stipulated. "10. It is mutually understood, that the salaries or compensation of agents to promote the joint business, at Montgomery, Belma and New Orleans, being for the joint benefit of both parties, shall be allowed as a charge, and paid out of the grass earnings of the boats, as a charge against the joint fund. "11. It is further understood and agreed, that the days of departure of the boats of the parties of the second part, while this contract lasts, shall be Sundays and Mon- days, unless changed and otherwise arranged by the con- sent of the parties to this contract. "12. The parties respectively agree, that each shall account to third parties, for all lost freight, and also to each other for the freight-money; and that, at the expira- tion of each year of the duration of this agreement, each OF ALABAMA. 161 Mealier v. Cox, Brainard & Co. party shall assume, as cash, all debts due to each boat re- spectively, and account for the amounts thereof to the other party, as if collected. "13. It is furthermore the agreement of the parties, that all questions which may arise, as to the conducting of the business, under this agreement, shall be discussed and settled by consultation, by a committee of two per- sons, (one of whom shall be named by each party,) who shall determine the sime; and each party shall annually nominate a person to act on said committee, and, in case of absence or sickness, each party shall be at liberty to appoint n substitute; and in case of a difference of opin- ion between them or their substitutes, and disagreements shall arise, then they shall call in a third person, selected by them jointly, who shall determine the point or points to be settled. "14. It is agreed, that the books of all the boats, and all accounts, vouchers, and papers, shall be investigated, examined and audited by a committee of two persons, one of whom shall be nominated and selected by each party from time to time, and so often as needed, who shall make up the accounts for division under this con- tract ; and that the books and papers shall, at all times, be subject to the inspection and examination of the said Cox, Brainard & Co., Meahers, and Cayce. "15. It is further agreed, that in case the parties shall hereafter deem it to be for their mutual advantage and interest to increase the number of steamboats to be used and run on the river or lake, then each party shall fur- nish boats iu the same proportion as under the present stipulations. "16. It is agreed, that the compensation of the exam- ining and auditing committee, and also all losses paid for injuries and damage on cotton shipped from the river above through to New Orleans, shall. be charged to the ral expense account, so that the charge shall be borne by the parties according to their respective inter "17. This agreement is to commence on the 5th July, . ami to continue uutil the 30th June, 1868, (inclu- 162 SUPREME COURT Mealier v. Cox, Brain ard & Co. ding both days,) unless either party should conclude to sell out and abandon the business; then the other party shall have the preference aud right to purchase the in- terest so to be sold, at the price and terms which maybe offered for the same by others, and at which such party may be willing to sell. "In witness whereof," &c. (Signed by each firm, and by each partner individually.) On the 7th January, 1860, F. M. Johnson, Robert Otis and Moses Waring, as partners composing the firm of Cox, Brainard & Co., "and as trustees managing the business of said firm," filed their bill in equity against James M. Mealier, Timothy Mealier, Byrnes Mealier, and Stewart Cayce; asking a dissolution of the partnership formed under the articles above copied, and a settlement of the partnership accounts. The complainants alleged, that said partnership went into operation, under said ar- ticles, at the.time therein provided ; that Henry L. Jayne afterwards died, and William F. James withdrew from the firm of Cox, Brainard & Co.; that on the 1st July, 185'J, complainants were appointed trustees to manage the business of Cox, Brainard & Co., and, as the active partners of said firm, were vested with all their rights and interest under the said contract with the defendants, and thenceforward continued to carry on the said part- nership jointly with them; that an auditing committee. was appointed, as provided in said articles, who stated the accounts of the parties, not for exact periods of one month, as therein provided, ("since that was found in- convenient in practice, as the month would often expire while the boats were on the way,") but for every period of five round trips, which approximated to one month ; that this practice was, lor convenience' sake, sanctioned and acquiesced in by all parties, and the accounts were thus stated up to the 1st July, 185'.», when a balance of $6,081.13 was found due from the defendants to the com- plainants, which was afterwards settled and paid, but not without considerable delay; that the accounts were af- OF ALABAMA. 163 Mealier v. Cox, Br.iinaTd & Co. terwards stated by the committee, as before, up to the 9th August, the 15th September, and the 18th October, showing a large balance each time in favor of the com- plainants; that the defendants refuse to pay these bal- ances, amounting ir all to more than $G,300, and insist that they will only settle at the end ot each year; t*hat the complainants, after repeated refusals on the part of the defendants, placed their claim in the hands of their attorneys and solicitors, with instructions to demand pay- ment and a performance of the articles of partnership; that said attorneys addressed two letters on the subject to the defendants* to which no reply was returned, and afterwards called on them in person, and notified them, under instructions from the complainants, that, in con- sequence of their refusal to perform the terms of the con- tract, the complainants proposed to consider the contract as ended; that the defendants declined to make any an- swer to this proposition ; that the defendants also claim "that the} T have the right, under said articles, to give credit for freight, &c, and are not bound to distribute, at the stated periods, any tiling else than money actually re- alized, but may retain all other assets until the end of the year, whereas the contract requires the distribution of all proceeds at the monthly periods ; " and that, in con- sequence of these repeated refusals on the part of the defendants to comply with the stipulations of the arti- cles, the partnership can be no longer successfully car- ried on, and the complainants have a right to insist an its lutiou. Copies of the articles of partnership, the accounts stated by the auditing committee, and the let- '1 by the complainants' solicitors to the de- fendant*, were appended to the bill as exhibits. The defendants filed a joint answer, admitting the ution of the contract shown by the articles, (but not that said contract constituted a partnership between the par^ies,)lhe conducting of the joint business under said Contract up to the filing of the bill, the withdrawal of James, the statement of the accounts by the auditing committee, the settlement of the balance found due from 164 SUPREME COURT - — _ . — ___ , _ — '• ' Meaher.v. Cox, Brainard & Co. the defendants on the 1st July, 1859, their refusal to pay the balances afterwards found due from them, and their refusal to answer the letters and proposition of the com- plainants' solicitors. They insisted, that the accounts stated by the auditing committee were only designed to furnish the parties with information as to the condition of the business, and included cash and uncollected debts; that, under the twelfth article of the contract, they were only bound to assume as cash the uncollected debts at the end of each year, and not at the expiration of each month ; and that "to require from either party monthly payments, including outstanding delfts, would not only impose a hardship on the party paying, but would mate- rially interfere with the success of the business itself." They alleged, that the complainants had not carried out the contract in good faith, and had violated its stipula- tions in several specified particulars; and justified their own refusal to reply to the communications of the com- plainants' solicitors, on the ground that the articles pro- vided a mode of adjusting all controversies, and the com- plainants had not proposed to settle the matters in dis- pute in that mode. They also demurred to the bill, for want of equity, and for want of necessary parties. The complainants having submitted a motion, on bill and answer, for a decretal order, declaring a dissolution of the partnership, and ordering a statement of the ac- counts by thejnaster, the chancellor rendered the iollow- ing decree : Saffold, Ch. — "It is suggested by the defendants, that the contract between the parties does not establish a partnership inter sesc. In Smith's Executor v» Garth, (32 Ala. 368,) it is said: 'To constitute a partnership inter sese, there must be a mutuality of risks — an interest both in the profits and losses. These risks or interests are not required to be equal; nor is it important that they shall agree in kind. The investment may be tme- qual, and the parties may agree to divide the profits une- qually; yet, if it be one of the terms of the contract OF ALABAMA. 165 Meaher v. Cox, 3rainard & Co. that each shall share in the risks and losses, and also in the profits to be realized, this constitutes them partners as between themselves.' — See authorities cited. This settles the law of this case upou the point raised. The articles express the agreement to be, 'to divide between them, in certain proportions; the net proceeds of their freight, passage-money, and other earnings, as they may accrue, after satisfying their running expenses.' The fourth and fifth articles provide for a separate ownership of the boats by the parties respectively, and for having them constantly ready and equipped, and against any de- lay for repairs, &c. ; 'and if the need of repairs, in any case, shall cause the loss of a trip of any boat, then the expenses of such boat, during the time lost, shall be at the charge of the owners.' The seventh article provides for a division of the total amount of the proceeds and earnings, in certain proportions; 'that nothing shall be charged, but the actual expenses of the running depart? ment of the said boats, exclusive of the repairs, value of the use of the boats, insurance, taxes, &c. ; the amount to be divided to be stated by computing the earnings, and deducting therefrom the wages, provisions, wood, supplies, and all daily expenditures properly belonging to the running of the boats for the time being.' The tenth article provides, that the salaries of the agents shall be paid out of the gross earnings of the boats, as a charge against the joint fund; and the sixteenth article provides, 'that the compensation of the examining and auditing committee, and also all losses paid for injuries and damage on cotton shipped from the river above through to New Orleans, shall be charged to the general expense account, so that the charges shall be borne by the respective parties according to their respective in- terests.' It is to be gathered from these stipulations, that there is a mutuality of risks — an interest in the losses, to the extent of satisfying the running expenses of the boats, such as wages, provisions, wood, supplies; and all daily expenditures ; the salaries of the agents and examining and auditing committee, and losses on cotton 166 SUPREME COU RT ____ Mealier v. Cox, Brainard & Co. shipped through to New Orleans. Should it appear that the legitimate expenses, as above provided for, exceeded the gross earnings of one or more of the boats, and re- sulted in a loss to such boat, the loss would be a charge agait?st the common fund; and so the parties seemed to' •consider it in making up their accounts. Suppose that, for a whole year, the legitimate expenses of the running department of the boats of one of the parties had exceed- ed the gross earnings of said boats, without culpable neg- lect or misconduct on their part causing that result, and the net profits of the boats of the other party had been considerable; there can be no question, that these profits would have been subject to division between the parties, in the proportions stipulated for; nay more, they would have been subject to a reduction first, to the extent of the losses of the unfortunate boats, and the balance sub- ject to division; and upon the same principle, if all the boats of both parties had sustained losses, by the legiti- mate expenditures exceeding the gross income, the losses would have to be borne proportionately. It is true, that the sixth article stipulates against a mutuality of risks, as to a certain class of losses, injuries, and damages; and it was entirely competent for the parties, as between themselves, to provide against such mutuality of losses, and declare them not to be legitimate charges against the common fund. But, unless these stipulations covered the whole ground of mutuality of risks, the principle of the case above cited establishes a partnership inter scse. "The next question to be considered is, whether the court will decree a dissolution of the partnership, on the case made by the bill and answer. In determining this question, it is proper for the court to look to the duties and obligations implied in the partnership contract, as well as to the express terms of the contract, and to the results of a dissolution to the partners. It is considered, that the defendants have not committed such acts of misconduct, or been guilty of such violation of the terms of the contract, as would authorize the court to decree a dissolution for that cause; nor does it appear, from the Of ALABAMA. 167 Meaher v. Cox, Brainard & Co. bill' and answer/that they have willfully violated the con- tract in any regard; and no acts of the complainants are stated in the answer, which would induce the court, ex mero motu, to dissolve the partnership, especially when such dissolution is not assented to by the defendants. This is not a case, however, wherein it appears that any material damage is to result to the interests of cither party, or a join t partnership property may be sacrificed by a sale on dissolution ; and it'is to be considered, that the partnership contract imposes upon both parties mu- tual good will and confidence, without which it would be impracticable to carry out the agreement beneficially to both parties. Moreover, if a dissolution were not de- creed, violations of the contract, and violent and lasting dissensions, would probably result from a continuance of the partnership, engendering litigation and a final neces- sity for a dissolution. The court is of opinion, that the state of feeling between the parties at present warrants this apprehension, and that a dissolution should be de- creed." The chancellor accordingly decreed a dissolution of the partnership, and referred the matters ot account to the master; and his decree is now assigned as error. ♦ R. II. Smith, for the appellants.— 1. The contract be- tween the parties did not create a partnership. There is no common property, and no joint control; no combina- tion of property, labor and skill, for the common profit; no personal responsibility for the debts and engagements of each other, and no power to bind each other by con- tracts; the property of each is at his own risk, and sub- ject only to his debts; and, on dissolution, there could be no lien for partnership debts.— L Parsons on Contracts, 124; 3 Kent's Com. (lasted.) 20; Pattison v. Blanchard, . len, lc6; Smith v. Wright, 6 San ford, 1 I Igcs v - 1>:I ' & Co., 6 Ala. 217. The bill shows that the members con the firm of Cox, Brainard &. Co. have changed, without thedefendanta' consent, and without iltation with them; which conld not bedoiu in i of a partnership.— Story on Partnership, 108 SUPREME COURT • Meaher v. Cox, Brainard & Co. 2. Whether considered as a bill for the dissolution of a partnership, or for the rescission of a contract, the com- plainants are not entitled to any relief, on the case made by the bill and answer. As the hearing was on bill and answer, the answer must be taken as true in all its parts. 4 Ala. 464. The seventh and twelfth articles, construed together, show that, while the accounts are to be adjusted monthly, and the cash balances to be paid over, the un- collected debts are to be assumed and accounted for only at the expiration of each year. If the complainants' construction' be correct, the bill itself shows that, in practice, the parties have adopted a different construction ; and the court will give effect to such practical construc- tion. — Boyd v. Mynatt, 4 Ala. 79; Smith v. J eyes, 4 Beavan, 503. Complainants assert a simple legal de- mand, recoverable at law; and as the balances between the parties are continually shifting, they should be left to their remedies at law. — Loscombe v. Russell, 4 Simon, 8. A court of equity will not undertake to adjust the squab- bles of partners. — Wray v. Hutchinson, 2 My. & K. 235; Heun v. Walsh, 2 Edwards' Ch. 129. Particularly ought this iuio / be enforced, where the articles provide a mode of adjustinajdifferences, and the complainants do not show that they have sought that mode of re- dress.— Smith v. Mules, 10 Eng. L. & Eq. 103. The com- plainants show no right in themselves to maintain a bill in behalf of Cox, Brainard & Co. — 1 Russell, 441. No cause for a dissolution is shown, in any view of the case. Story on Partnership, §§ 287- 89. Geo. .N. Stewart, and E. S. Dargan, contra.— I. The contract contains all the elements of a partnership, not only as to third persons, but as between the parties. Participation in the profits and losses, without regard to the mode of dividing either, constitutes a partnership. Smith's Executor v. Garth, 32 Ala. 368; Bostwick v. Champion, 11 Wendell, 571; S. C, 18 Wendell, 175. 2. Whether the contract be a partnership inter sew, or only as to third persons, ample cause for dissolution is shown. OF ALABAMA, 169 Mealier v. Cox, Brainard & Co. Waters v. Taylor, 2 VeSey & B. 303 ; Loscombe v. Russell, 4 Simon, II ; Gow on Partnership, 124-6, 246-7, 111-6; Collyer on Partnership, §§ 291-97, 194-6, 236; Story on Partnership, 413-14, 42*3, 290; 3 Kbit's Com. 60. R. W. WALKER, J.— [March 2, 1861.]— Whatever may be the proper construction of the 12th clause of the articles, when taken in connection with the 7th, it is ad- mitted on both sides, that, by the agreement, the accounts are to be adjusted monthly, and the cash balances paid over. When the defendants were called on to pay the balances, as stated by the auditors, they did not object to the accounts, on the ground that they were made up in part of cash, and in part of uncollected debts, without distinguishing the cash from the debts; nor did they theu, nor do they by their answer, express a willingness to pay the cash balances, according to the stipulation in the ar- ticles. On the contrary, the answer must be understood as insisting, that the business of the partnership cannot be successfully conducted, if the 7th clause of the articles is carried out as it is written; and the unwillingness of the defendants to abide by and execute that term of the agreement, is apparent. If, in adjusting the accounts, and ascertaining the balauces to be paid over, the audit- ors did not proceed in the manner directed by the articles, this fact should have been pointed out, and the proper correction asked by the defendants, when called on for payment by the complainants. But, instead of this, they made no reply to the communications upon the subject sent to them by the complainants; and when applied to with a proposition from the complainants to terminate the partnership, they refused to say whether they would accede to it or not. Looking at the whole case, it pretty plainly appears — that the defendants do not intend to carry out one of the terms of the agreement, but insist that, in order to carry on the partnership business, this feature of the agreement must be either disregarded op changed ; that they have refused, in the instauccs specified, to cor- 12 17 SUP REME COU RT Mother v. Cox, Brainard & Co. respond with the complainants, • on matters connected with their business; and, tidrd, that the state of feeling between the parties justifies the apprehension, that the business cannot be continued to the mutual advantage of the partners. While, therefore, it may be true, as said by the chancellor, that the defendants have not committed such acts of misconduct, or been guilty of such willful violation of the terms of the contract, as would authorize the court to decree a dissolution for that cause; yet we think that the combination of circumstances above enu- merated does justify a dissolution, in this particular case; which is not one in which there is any joint property, which might be sacrificed by a sale; or where it is proba- 1 1 a t a dissolution would inflict material injury on cither party; and in which, moreover,' it is obvious, from the very nature of the andertakiug, that good will, confi- dence, and concert of effort, (important elements of sue- in cv^ry partnership,) are indispensable to the profit- able management of the business. — See 1 Story's Equity, §673; Collyer on Partn. §§ 297, 291, 119, and notes; Story on Tartu. §$ 27-"., 289, 290, and notes; Waters v. Taylor. 2 Yes. & ]*>. 299; Baring v. Dix, 1 Cox, 212; Bishop v. Rrecklcs, 1 Horn Ch. 534. [2 ] The clause providing lor the submission to arbitra- tion of all matters of dispute, has nothing to do with the question, whether equity should decree a dissolution. No • agreement to refer a controversy to arbitration, can oust the proper courts of their jurisdiction. — Collyer on Partn. ' 250-51, 253, and notes; Stone v. Dennis, 8 J 'or. 28t; 1 Story's Eq. § 670 [:•).] As partnerships arc founded in personal confi- dence an man, it is a settled principle, that no partner, and no majority of partners, can introcmce a new member, without the consent of the others. But in this case, after the complainants succeeded to the inter- of the persons originally composing the firm of Cox, Brainard, & Co., the defendants recognized and ted them as partners, and continued the business, in •onjunction with them, under the original agreement. OF ALABAMA. 171 Moseleys Adm'r v. Mastin. This was quite sufficient to make the complainants part- ners; and the original articles remained operative, as be- tween them and the defendants. —See Rowland v. Booyer, 10 Ala, 600; Cowlcs v. Garrett, 30 Ala. 34& [4."] We do not deem it necessary to add anything to what is said by the chancellor, in support of the propo- sition, that the agreement constituted a partnership inter sese. We cite, however, as sustaining that view, Cham- pion v. Bostwick, 18 Wend. 175; and Pattison v. Blau- chard, 1 Sold. 186. With these explanations and additions, we approve of and adopt the opinion of the chancellor. Decree affirmed. MOSELEY'S ADM'R vs. MASTIN. [detinue foh slaves.] ' . Validity of grant of administration. — A grant of letters of adn tration in chief, when there has been in fact a previous adminis- tration, which had terminated by the death of the. administrator, (these facts not appearing in the second grant,) is valid as a grant of administration dc bonis non, and void only as to the excess of authority which it purports to confer. ' notice of meaning of words. — The appellate court will take judicial notice of the fact, that the word "adm'r," following the plaintiff's name in the complaint, is an Abbreviation for the word trator. 3. Admissibility of parol evidence in aid of record. — A grant of letters aion on the estate of E. M. deceased, when that there were to s (father and son) of that ni leal ' ite in the county to be administered, may by parol to refer i tho Ron. 4. /'. n crro) . — If evidence is erroi eluded by the primary oonrt, on a single specified ground, urt will ] njury from the error, alt hfu appears that the evidence wai SUPREME COURT Moseley 'a Adm'r v. Mastin. md, which, if the objection had there b< en raised, might have- •. i.ittd by the introduction of other evidence. Appbal from the Circuit Court of Montgomery. Tried before the lion. S. D. Hale. Tuts action was.brought by Joseph P. Hopper, as the administrator of Klislia Moseley, junior, deceased, against Pester B. Mastin. In the summons, the plaintiff was described as the administrator of Elisha Moseley, jr., de- ceased; in the marginal statement of the parties' names in the complaint, "as adm'r of Elisha Mosely, jr., de- • d -." and in the body of the complaint, "as adm'r of all the goods an dj chattels, rights and credits of Elisha M selcy, jr., deceased, which were left nnadministered by the administrator in chief." The slaves in controversy belonged to Elisha Moseley, senior, who was the father of plaintiff's intestate, and were given 1 » v him to his said son, on the marriage oi the latter, in ] v ".<>, or l v :!T. The ■on carried the slaves home with him when he commenced housekeeping, and kept them until his death, which oc- curred about twelve months afterwards. On the death of the Bon, the father carried his wile and the slaves to iwn house, declaring his intention to keep the slaves for the child with which his daughter-in-law was then nant, Letters of administration on the estate of the son were granted to the father. on the 2d March, 1838, bir he did not include the .slaves in his inventory of the estate; and in January, 1540, on settlement of his ac- counts a decree was rendered against him, in favor of the in t - '!•• ■ I and child, for the balance of money as- certained to be in his hand-, but he was not discharged from the trust. Tin' father died in L843 ; and the slaves afterwards -old by bis administrator, under an order Mft, and were purchased at the sale by the defendant. The father and 80 n both lived and died in Montgomery county, Alabama, and letters of administration were there grained on their respective estati ATter having proved the facts above stated, the plain- OF ALABAMA. 173 Moseley's Adm'r v. Mastin. tifF offered to read in evidence his letters of administra- tion, vvhieb were granted by the probate court of Mont- gomery, on the Cth August, 1856, and which were in the following words: "This day came Joseph D. Hopperj and applied for letters of administration on the estate of Elisha Moseleyi deceased ; and it appearing to the court that the deceased has been dead more than forty days, and that he died in Montgomery county, Alabama; and the said Joseph D. Hopper having entered into bond, in the sum of six thousand dollars, with J. F. Jackson and Thomas II. Watts as his sureties, and taken the oath of office, it is ordered, that letters of administration issue to Joseph D. Hopper on the estate of Elisha Moseley, I ; and ordered, that said administrator make 'return of an inventory to the court in sixty days." "The plaintiff stated, that he expected to prove, in connection with said order" that iffe had duly qualified as such admin- istrator, pursuant to said order, and was acting as such under it at the commencement of this suit. The de- fendant objected to the reading of said order in evidence, on the ground that, on the facts hereinabove stated, said order was null and void ; and on the further ground, that there v^as a variance between the complaint and said evidence, because the order showed that, he was appointed administrator generally, while ho sued as administrator The court sustained the objections, and excluded the evidence; to whieh the plaintiff excepted, and took a nonsuit; and 1*3 now assigns this ruling of the error. W.A <.i: k Jackson, for appellant.— The grant of i i at ration to the plaintiff was not void.— Ikelhei Adm'r, 3-2 Ala. 676; Savage v, Bei 1 am, IT Ala. 119; Herbert v. Hanrick, 16 A.la. 58] ; v. Knight, 11 Ala. 461. The entire record of the a.lmin- D together, shows that the grant could not I administration in chief, but could only an administration d, such it rausl I ■ ,]. If,.. 174 SUPREME COURT Moseley's Adm'r v. Mastin. - — i — — — — . the plaintiff was properly described as administrator de bonis non, and there was no variance. Goldthwaite, Rice & Semple, contra. — The rights and • liabilities of an administrator in chief are different from those of an administrator de bonis non. — Enicks v. Powell, 2 Strobh. Eq. 196. The title of an administrator in chief relates back to the death of the intestate, while the title of an administrator de bonis non reaches only to the assets which were not administered by his predecessor; and de- fenses may sometimes he made against the one, which would not avail against the other. — Judge, &c. v. Price, 6 Ala. 36; Fambro v. Gantt, 12 Ala. 298. The difference between these two kinds of administration constitutes a fatal variance between the allegations and proof in thi3 A case.— Scott v. Dansby, 12 Ala. 714; Flake & Freeman v.Day, 22 Ala. 132>; Agee v. Williams, 27 Ala. 044; Dill v. Rather, 30 Ala. 57. A. J. WALKER, 0. J.— [Feb. 12, 1361.]— The grant of administration tO % the appellant was not void, on ac- count of the omission of. a recital of the facts upon which the jurisdiction of the cou»t was predicated.— Ikelheimer v. Chapman, 32 Ala. 676; Savage v. Benham, 17 Ala. 119. As there had been a previous administration upon the estate, which was terminated by the adminisl rator's death, there could not be an administration in chief, and it was Improper for the court tofoppoint an administrator gene- rally. The appointment should have been in terms restricted to the character of an administrator de bonis von. But we do not think the appointment ought there- fore to have been held void in toto. The authority of an administrator de bonis non is precisely that of an adminis- trator in chief, lessened in consequence of the previous administration; and the errOrofthe court, in omitting to properly qualify the grant of administration, had only . the effect of conveying an e power; and the grant of administration should be held void only for the excess of authority. A consideration of the appointment, in connection with the previous administration, shown by OF ALABAMA. 175 Moseley's Adm't v. Mastin. the records of the court, qualities it, and gives it the character of an administration de bonis non. The plaintiff was, therefore, properly described as administrator de non; and the apparent variance between, the char- acter in which he sues, and that bestowed by the grant of administration, is harmonized and reconciled by the facts, that flier.' had been a previous administration, which was terminated by death. — See Steene v. Bennet & Sergeant, 24 Verm. 303; and Grand v. Herrcra, 15 Texas, 533, which seem to be precisely in point, sustaining the fore- going vi Judgment reversed, and cause remanded. Note by Reporter, — The appellee's counsel afterwards submitted a petition tor a rehearing, in which they Urged an affirmance of the judgment of the circuit court, on the following ground^: 1. As the plaintiff never had possession of the slaves, he cannot recover in his individual character. — George v. English, 30 Ala. 583. Looking to the body of the com- plaint, the only words descriptive of his representative character are, "as adm'r of all the goods and chattels," Jtc, " left uuadministered by the administrator in chief;'' and since nothing is averred to excuse, the profert and proof of his representative character, (Worthington v. McKoberts, 7 Ala. 814,) and the defendant is not estopped from denying it, (Harbin v. L^yi, Ala. 399,) this court will not presume, against the judgment of the circuit court, that these words indicate a suit by him as admin- istrator.— Chapman v. Spenco, 22 Ala. 588. No intend- ments arc to be made in favor of the pleader, and against if the judgment. — King v. Griffin, Ala. . Agee v. Williams, 27 Ala. G44 ; 8. C, 30 Ala. I Geo! 80 Ala. 5 2. But, if the action is brought by the plaintiff in his rep rose n tat ire character, the order of the probate court was properly excluded. A grant of letters of adminis- tration on the estate of " Elijah S I," with- out any other addition or description of the person, when 176 SUPREME COURT Moseley's Adm'r v. Mastin. it is shown that there were two deceased persons, father and son, each bearing that name, and each leaving an es- tate in the county, must be construed and held as a grant of administration on the estate of the father. — Wilson v. Stubs, Hobart, 830 ; Lepiot v. Browne, 1 Salkeld, 7, pi. 16 ; Sweeting y. Fowler, 1 Starkie, 106; Boyden v. Hastings, 17 Pick. 200. The construction of the order of the pro- bate court was a question for the determination of the court, aud with which the jury had nothing to do.*-Wy- att v. Steele, 26 Ala. 639; Bishop v. Hampton, 15 Ala. 761; S. C, 19 Ala. 792. Parol evidence was not admis- sible to change the legal effect of the grant, by showing that it was intended to refer to the estate or* the son. — Hudson v. Gayle, 10 Ala. 116 ; Flournoy v. Minis, 17 Ala. 36; Ware v. Roberson, 18 Ala. 105. No such evidence was offered by plaintiff, even if it were admissible; and this court will not presume, for the purpose of reversing the judgment, that the plaintiff could have made the ne- cessary proof. In response to this application, the following opinion was, on u .subsequent day of the term, deliw-- A. J. WALKER, C. J. — As to the first point made in the petition for a rehearing, we have only to say, that the court must judicially take notice of such abbreviations as "adm'r" or acknowledge itself incompetent to under- stand the commonest writings. After a careful consideration of the second point made, and the authorities adduced in support of it, we cannot find in it a reason for changing the conclusion which we have heretofore announced. The authorities cited by the counsel show, as we think, most clearly, that if the administration would, under the circumstances stated, be deemed 'prima facie an administration upon the estate of the senior Moselcy, it may nevertheless be shown to have been in fact an administration upon the estate of the ju- nior Moselcy. Two specific objections were made to the plaintiff's testimony in the court below, one of which implied an OF ALABAMA. 177 Moseley's Adm'r v. Mastin. admission that the administration was upon the estate of the junior Moseley; and the bill of exceptions states, that the court sustained the objections, and excluded the evi- dence. The objection to the evidence stated in the sec- oud point of the petition for a rehearing, was not one of the objections made in the court below, but is now brought forward for the first time. If that objection had not been excluded from the attention of the plaintiff's counsel, and of the court, by the other specific objections which were made, it might have been obviated. The court erred in sustaining the specific objections which were made; and we cannot affirm that it was error without injury, because there was another objection which might have been made, and which, if made, might have been obvia- ted. It is our duty, therefore, to reverse, notwithstand- ing there may have been another objection, which might have been fatal to the admissibility of the evidence, but which was of such a nature that, if it had been made in the court below, it was capable of being obviated. It must be admitted, that the exclusion of illegal evi- dence, for a wrong reason, would not be a reversible error. — Jordan v. Owen, 27 Ala. 152. But it would be improper for the court to assume that the excluded evi- dence was illegal. Although it may have been, prima , illegal, yet, in connection with other evidence, it might have been made legal. We cannot presume that the other evidence which was necessary, in connection with that excluded, to make out the plaintiff's right to sue in the capacity of administrator, would not have been offered, when both the motion to exclude, and the order excluding, were expressly put upon other grounds than tin; want of such evidence, and one of those grounds implied an admission that the evidence was not obnox- ious to the objeeton now made. The petition for a rehearing is overruled. 178 SUPREME COURT Bank of Montgomery v. Planner's Adm'r. BANK OF MONTGOMERY vs. PLANNETT'S ADM. [action fob mosey had A.ND RECBIVBD.] 1. Proof of account by entries made by deceased clerk. — Books of ac- count, kept by a deceased clerk, and all other entries or memo- randa mad'' in the course of business or duty, by one who would beat the time a competent witness to the fact which he registers, aro held competent evidence* from the presumed necessity of the case,; hut the reason of the rule ceases, and the rule itself consequently fails, when it appears that there is other and better .evidence of the same tacts; as where it is shown to be the cus- tom of a bank to payout money only on the checks of its deposit- ors. 2. Strj m-claim. — A claim against the estate of a deceased • oi is barred, unless presented to the personal representative within eighteen months after its accrual, or within eighteen months after the grant of letters testamentary or of administra- tion itwithstanding the Failure of the personal representative to give notice to creditors, as required by the statute. .">. Ag n, question af I vince '/jury. — Where the fact of agency is controverted, and there is any evi- dence tending to establish it, the sufficiency of that evidence is a question for the jury, under appropriate instructions from the court: and a oharg ing that the evidence is not sufficient to pro\ us. Appeal from the Circuit Courted' Montgomery. Tried before the Hon. John Gill Shorter. This action was brought by the administrator of Stephen Plannett, deeeaeed, to recover certain moneys alleged to have been d i with the defendant by said Plannett in his life-time; and was commenced on the 5th i.lateh, 1857. The complaint contained a count on an open account, and another on a 6tated accouut. The defendant pleaded, in short by consent, the general issue, payment, and set-off; and to the plea of set-oil' the plaintiff replies! the statute of non-claim. "On the trial," OF ALABAMA. 170 Bank of Montgomery v. Plannett's Adm'r. as the bill of exceptions' states, "the plaintiff's account . against the defendant was established by entries in a de- posit-book, ((fommonly called a 'pass-book,') to the credit of plaintiff's intestate, and in his own name, made by the defendant's teller. To support the pleas of payment and set-off, the defendant produced its book of original entries, containing items of account, both debit and credit, between said intestate and defendant; and, having pro the handwriting of the officer by whom said eutries were made, and bis death, and that he kept correct accounts, ottered to read said entries to the jury; but, it having been proved to be the custom of the defendant to payout moneys to depositors on checks drawn by them, the court required the production of the cheeks, and refused to al- low said book of original entries to go before the jury, as sufficient evidence, without the checks; to which the de- fendant excepted." "The defendant introduced oral evidence before the jury, tending to show that, in 1854 and 1855, plaintiff's intestate was in bad health, and so continued up to the time of his death in June, 1855; that said intestate, from the 1st June, to the 1st December, 1854, was absent from this State; that before he left, during his absence, and after his return, up to within a short period of his death, he was the proprietor of a billiard-room in the city of iiery, which he rented from one Washington Tilley; that during all this time, on account of his bad health, lie was unable to give his personal attention to his business, but entrusted it to the management and control of one V. D. Carnot, who exercised complete con- trol over it, making contracts in reference thereto, and barging liabilities. The defendant further proved the declarations of said intestate, after bis return to Mont- . that said Carnot was his agent; and these dec- larations were made whilst said Carnot was still attending to said billiard* room basinets, and in a con> which had refei ired t<> have been made during the time I from I 180 SUPREME COURT Bank of Montgomery v. Plannett's Adm'r. and whilst said Carnot was attending to his billiard-room. The defendant read in evidence, after proving the signa- ture thereto, two notes signed by said intestate, for $150 each, dated the 1st October, 1852, and payable, respect- ively, on the 1st August, and the 1st November, 1854, to Washington Tilley or order; " (each of which purported to be given "for one quarter's rent of billiard-room," and was endorsed in blank by said Tilley;) "and, in connec- tion therewith, two checks on said defendant, drawn by said Carnot, and signed, 'Stephen Plannett, by V. D. Carnot,' bearing date respectively on the days of the maturity of said notes, and purporting on their face to be drawn for the purpose of paying 6aid notes. The defendant intro- duced in evidence, also, a number of other checks, drawn on said defendant, for various sums of money, bearing various dotes between the 1st October, 1851, and the 1st June, 1855, all signed like the two above mentioned. The handwriting of said Carnot to each of said checks was proved; but there was no proof that any of them were drawn on account of the billiard-room. iS T o other evidence on the subject of said Carnot's agency, or his authority to draw said checks*, than as above recited, was offered by either party. There was no evidence to show that said intestate, after his return to Montgomery in December, 1854, had ever notified defendant that said Carnot was not his agent; nor any evidence to show that he had any knowledge of cheeks drawn on his funds in bank by said Carnot. Letters of administration on said intestate's estate were grunted to plaintiff in July, 1855; but there was no- proof of any notice to creditors, by publication in any newspaper; nor was there any proof that said notes had been presented to said administrator within eighteen months alter the grant of his letters; and as to these notes, pleaded as a set-oft by the defendant, the plaintiff replied the statute of non-claim. The court charged the jury — 1st, that the evidence was not sufficient to show that said Carnot, had authority to draw said checks, or any of them, in behalf of the plaintiff's in- testate; and, 2d, that each of the notes offered in evi- «>'. OF ALABAMA. 181 Bank of Montgomery v. Plannett's Aclm'r. dence under the plea of set-oft* was barred by the statute of non-claim; to which charges the defendant excepted." The rulings of the court on the evideuce, and the charges to the jury, are now assigned as error. Watts. Judge & Jackson, for appellant. — 1. The en- tries made by the deceased clerk were competent evi- dence to prove the account.— Clemens v. Patton, Donegan & Co., 9 Porter, 289 ; 1 Greenl. Ev. §§ 115-17, 120, 15.1; Batre v. Simpson, 4 Ala. 305; Everly v. Bradford, 4 Ala- 373. 2. The first charge invaded the province of the jury. Agency is a question of fact. — McClung's Executors v. Spotswood , 19 Ala. 165; McDonnell v. Branch Bank at Montgomery, 20 Ala. 313. 3. The filing of a plea of set-ofr, 'which is a cross ac- tion, is a sufficient presentation of the claim to prevent the bar of the statute of non-claim. Moreover, the ad- ministrator had not published notice to creditors, as re- quired by the statute. — Code, § 1731. Maiitin, Baldwin & Savre, contra. — 1. The checks were higher and better evidence than the parol testimony of the clerk, if living, would have been; and consequently, were better evidence than the entries, which are only ad- missible, when the clerk, if living, would be competent to prove the facts. — Batre v. Simpson, 4 Ala. 312. 2. When the facts are ascertained, agency becomes a question of law. — Wood v. McCain, 7 Ala. 800; Dearing v. Lighttbot, 10 Ala. 28; Scarborough v. Reynold*, 12 Ala. -■>-; McKeu'zie v. Stevens, 19 Ala. 691; Story on Agem-y, • 3. The notes were barred by the statute of non-claim, which does not require the publication of notice to cred- itors before it begin a to run. — Code, § 1883; McHenryV. Wells' Adm'r, 2^ Ala, 451. STONE, J.— [Feb. 12, 1861.]— The'dootrme is settled in this state, "that l accounts, kept by a d a 182 SUPREME COURT Bank of Montgomery v. Plannett's Adm'r. clork,' and all other entries or memoranda made in the course of business or duty, by any one who would at the time have been a competent witness to the fact which he registers, are admissible evidence." — Batrc v. Simpson, 4 Ala. 805; Everly v. Bradford, ib. 371; Clemens v. Pat- ton, Donega-n & Co., 9 Por. 289. This evidence is re- ceived on what is considered the moral necessity of the case.— Phil. Ev. (Cow. & Hill's Notes, by Van Cott,) 1 pt. 305, el seq.; 1 Greenl. Ev. §§ 115, 120. This doctrine resting on the presumed necessity of the case, it follows that, when the reason ceases, the rule also fails ; ctssante ralionc, cessat ipsa lex. — Cow. & H. Notes, 1st pt. 310. Hence, when goods were delivered on writ- ten orders, it was ruled by the supreme court of Pennsyl- vania, (Ch. J. Tilghman delivering the opinion of the court,) that the books were not evidence. — Smith v. Lane, 12 S. & K. 80. To the same effect are the cases of Ten- hroko v. Chapman, 1 Coxc, (N. J.) 288; Townley v. W-ooley, lb. 377. Sec Cow. & it. Xotcs, 1 pt. 310. In this case, it is shown that the custom of the bank was, to pay out moneys on the checks of its depositors^ < and not otherwise. This removes the necessity under which the books would be evidence, and, of course, ren. ders the rule inapplicable. The circuit court did not err in excluding the 'nooks from the jury. [2.] The record shows that the notes of Mr. Plannett QQt presented to the administrator within eighteen (mouths after they accrued, nor within eighteeu months after the grant of letters of administration. — Code, §1883. It is not essential to the operation of the bar, that the administrator should have given notice under the statute, (Code, § 1734,) although his failure to do so is obviously a breach of duty on his part. — See Cawthorn v. Weisinger, 6 Ala. 711 ; Mellenry v. Wells, 28 Ala. 451. The court did not err, in charging the jury that the notes of Mr. Plannett, offered in defense, were barred as a set-off by ' non-claim. [3.] In charging "that the evidence was not sufficient to show that Carnot had authority to draw said checks, OF ALABAMA. 183 Bank of Montgomery v. Plannett's Adm'r. or any of them, in behalf of the plaintiff's intestate," the circuit court erred. In the case of McClung v. Spots- wood, (19 Ala. 165,) this court, Ch. J. Dargan delivering the opinion, said: "But in most cases, if not in all, the question of ngency is a matter of fact, which it is the province of the jury to determine upon, under the iri- structions of the court; and if the testimony tends to prove, that the person acting as agent had authority from his principal to do the act, then it is manifest that the court cannot exclude from the jury the act itself, without over-stopping the law of its duty, and assuming to deter- mine a matter which belongs to the jury, to-wit, the au- thority of the agent to do the act." In the case from which we have quoted, the fact of agency was left by the testimony in extreme doubt; yet this court ruled, that the circuit court erred in excluding the evidence from the jury. In the case of McDonnell v. Br. Bank at Mont- gomery, (20 Ala. 313,) a similar decision was pronounced on testimony of agency which was inconclusive. — Roland v. Logan, 18 Ala". 307; Krebs v. O'Grady, 23 Ala. 726; King v. Pope, 28 Ala. 601; Fisher v. Campbell, Tor. 210; t>trawbridge v. Spann, 8 Ala. 821; Barry v. Foyles, 1 Pet. S. C. 311. In the case of Irwin v. Buckaloe, (12* Serg. & R. 35,) the question was, whether one Moore was the agent of the defendant. The only evidence of agency was that of one witness, who testified, that "he had done business with Moore, as the agent of defendant, one or two years after the date of the receipt ; and that the defendant, about the same time, had told him that Moore was his agent, and did business for him." Gibson, J., in delivering the opinion of the court, said, " The admission was a cirCUHl- Stana left to the jury, wiMi a direction to regard tin- receipl as competent evidence or otherwise, as they •hould 1 1, or not, of the existence of tin when the receipt w. ,]." Thes( authorities arc full to the point, that the evidence i" tli -nglit to have gone to the jury, under an ap- propriate charge, for that body to have paste J on tin- tM T ^ 184 SUPREME COURT Creswell's Executor v. Walker. question of Carnot's agency. As to the two checks drawn for the payment of the two notes of Mr. Plannett, and which, as the record informs us, "purported on their face to be drawn for the payment of said ywtes," we do not perceive on what principle they were excluded from the jury. These notes were given for the rent of the billiard- tables, and Mr. Plannett was absent from the State when they matured. The proof is quite full, that Mr. Carnot was the agent of Mr. Plannett in the control of the billiard-room. These were facts clearly for the consider- ation of the jury, on the question of payment of the notes by those two checks. So, forming our opinion on the evidence recited in the record, we think the whole of the check* and orders should have been left before the jury, in connection with the other evidence on the ques- tion of agency, for decision by that body. If, under proper instructions, they found that Mr. Carnot was the agent of Mr. Plannett to control his funds in bank, and that on his checks, as such agent, the deposit had been drawn from the bank, this would amount to a good de- fense to "this action under the plea of payment. We need scarcely ^^i], that the doctrine of non-cjaim has no ap- plication to payments. Reversed and remanded. CJtESWELL'S EXECUTOR vs. WALKER. [dill in eqoii i rOB, nut instructions in execution of trusts.] 1. Validity of testamentary trust for emancipation of slaves at their elec- tion. — A testamentary trust for the emancipation of slaves, the execution of which Is made to depend on the election of freedom by the slaves themselves, is void, because they have not the legal capacity to make the election ; and the same principle applies, where the executor is directed to carry the slaves, for the purpose Off ALABAMA. » 185 Cresswell's Executor v. Walker. of emancipating them, "to some non-slaveholding State, or to the republic of Liberia, as the said slaves may prefer." Appeal from the Chancery Court of Greene. .Heard before the Hon. James B. Clark. The bill in this case was filed by the executor of John T. Oresswell, deceased, against Mrs. Zernula Walker and others, as legatees and heirs-at-law of said testator; and sought the direction and instructions of the court, as to the construction of the testator's will, and particularly as to the validity and execution of the trusts contained in the fourth clause, which was in the following words: "It is further my will and desire, that 1113' faithlul slaves, Tom, Dublin, Ann and Maria, be liberated and set free; and to effect that object, toy executor will have them ta- ken, at the expense of my estate, to some non-slavehold- ing State, or to the republic of Liberia, as the said slaves may prefer, there to be free, and will furnish each of them such an outfit, out of my estate, as, in the judgment of my executor, will render them comfortable. But, should said slaves, or any one or more of them, prefer to remain in slavery, then I do hereby, in that event, will and be- queath said slaves, or such of them as prefer to remain in slavery, to my sister, Zeuly Walker, requiriug her to will and bequeath said slave or slaves, at her death, to such peftoo or persons as she may believe will treat them with kiudip 35 and humanity. If some of them prefer to re- main, my executor will send those of them who will go, and furnish an outfit for them." The will was executed and published on the 4th October, I80G, in Greene coun- ty, the i.l. icc of the testator's residence; and he departed this life a tew days afterwards. The will was duly ad- d to probate, and letters testament ;>ry were granted imuel L. Cresswell, who was therein appointed ex- ecutor. The executor sold the lands and perishable PrOp< ; : • paid all the debts and specific legacies, and dis- tributed the estate according to the provisions of the will; only keeping the slaves mentioned in the fourth clause, and retaining in his hands money enough to provide for 1.; 186 « SUPREME COURT Cresswcll's Executor v. Walker. their expenses and outfit. In his bill he asserted, that the slaves had frequently expressed to him their desire to be emancipated, and had designated the country to which they wished to be carried : and declared his readiness and willingness to execute the trusts in their favor, if he could legally do so. The defendants filed answers, ad- mitting all the facts alleged in the bill, but insisting that the trusts for the benefit of the slaves were void. On final hearing, on bill, answers, and agreed facts, the chan- cellor held, on the authority of Carroll and Wife v. Brum- by, (13 Ala. 102,) that the trusts for the benefit of the slaves were void, and dismissed the bill, at the costs of the estate; and his decree is now assigned as error. Wm. P. Webb, for the appellant. — The fourth clause of the testator's will creates a valid trust, which the ex- ecutor is bound to execute. — Atwood v. Beck, 21 Ala. . 590; Abercrombie v. Abercrombie, 27 Ala. 489; 8 Ire- dell"? Eq; 253; 9 Humph. GIG: 19Geo. 35; 4 Leigh, 252; 12 Grattan, 117. What was said to the coutrary in the ease of Carroll v. Brumby, (13 Ala. 102,) must be re- garded as a mere dictum, and is not sustained by the au- thority cited from 6 Porter, 269: and the case itself is opposed to the entire current of authority in other south- ern States. — See cases above cited; also, 6 Sm. & Mar. 93.; 5 How. Miss. 30;,; 10 P. Monroe, 70; 2 Hill's Ch. 305; <"> Randolph. 65 •!. Even if that case be adhered to, as a correct exposition of the law, the trusts in this case be held valid; for t lie testator first directs his ex- ecutor to emancipate the slaves, and then gives the slaves the election to defeat the bequest by remaining in slavery; and if they have not the legal capacity to make such election, the condition is void, and the trust stands unaf- fected by it — Osborne v. Taylor, 12 Grattan, 117 ; 2 Wil- liams op Executors, (4 Ainer. ed.) 1084-86; 3 Vesey, 325; 1 Jarman on Wills, 680-84; Jas. D. Webb, contra. — This court has expressly deci- ^ • ded, that slaves have not the legal capacity to choose be- OF ALABAMA. 187 CresswelPs Executor v. Walker, tween freedom and slavery. — Carroll v. Brumby, 13 Ala. 102. That decision is founded on sound legal principles; and in the cases to the contrary, cited for the appellant, the question was not raised in the argument of counsel, and seems to have been assumed without consideration by the court. In this case, the will gives the slayes the right to elect between freedom and slavery^ and to choose the country to which, if they elect freedom, they shall be removed; and the executor cannot carry out the trust according to the provisions of the will, unless he is. gov- erned by their wishes, and conforms to their election. R. W. WALKER, J.— [Jan. 29, 1861.]— In Carroll and Wife v. Brumby, (13 Ala. 102,) the testator had by his will declared, that certain of his slaves should be per- mitted to go to Africa, their passage to be paid, &c; but, if they desired to remain subject to his daughter, as they had been to him, they should be permitted to do so; but in no event to be sold, or deprived of this privilege, either before or after the death of his said daughter. "Should they, or any, or all, prefer not to emigrate, then, and in that event, they shall be subject to my daughter, as they are to me." In passing upon this will, this court held, that the testator intended to give the slaves the option of freedom or servitude, but thai they had not the legal ca- pacity to rnake the choice; and that, the bequest of freedom being void, the title to the slaves was vested iu the (laughter. The same question has never since arisen iu this court; and we are now asked to reconsider it, be- lt, as is alleged, the decision is opposed to the cur- rent of authorities upon the subject, lias no solid founda- tion of reason' to support it, and appeals to have beea made without a special discussion of the principle in- volved. It is true that many ,ay be found, which silei •■ the principle, that a bequest of freedom, which ■Hid, is not rendered void by the fact, that the election of freedom by the slave is tile d< con- dition on which it is to take effect. The courts of North 188 SUPREME COURT Cress well's Executor v. Walker. Carolina, South Carolina, Georgia, Mississippi, Kentucky, and Tennessee, have all treated as valid bequests which provided' lor an election by slaves of freedom or servi- tude. — Washington v. Blunt, 8 Ired. Eq. 253; Jordan v. Bradley, Dudley's R. 170; Frazier v. Frazier, 2 Hill's Ch. 305; Cleland v. Waters, 10 Geo. 35; Ross v. Vert- ner, 5 How. Miss. 305; Leech v. Cooley, 6 Sin. & M. 93; Graham's Exr. v. Sam, 7 B. Monroe, 403; John v. Moreman, 8 B. Mon. 100; Adams v. Adams, 10 B. Mon. 20; Isaac v. McGill, 9 Humph. 616; Wade v. Am. Col. Society, 7 Sm. & M. 694. Mr. Cobb, in his work upon the law of negro slavery, notices the suggestion made in Carroll v. Brumby, (supra,) that a slave is incapable of making a choice between free- dom and slavery, and says in reference to it: "The sug- gestion has not been approved by other courts, and we cannot see the force of it. The theory of a complete annihilation of will in the slave, is utterly inconsistent with all recognition of him as a person, especially as re- sponsible criminally for his acts." — Cobb on Slavery, § 363. Notwithstanding this long array of authorities, appa- rently in conflict with it, we are persuaded that the prin- ciple announced by this court in Carroll v. Brumby, a,) is a sound one; and that any trust for emancipa- tion, in the execution of which. the election of the slave between freedom and servitude is prescribed as a neces- sary step, must fail, because slaves have not the legal ca- pacity to make the election. It is a remarkable fact, and one which may be thought to militate against the opinion we have just expressed, that in none of the numerous cases we have cited, except Cleland v. Waters, (19 Geo. 35,) does it appear that the question as to the legal capacity of slaves to make such election, was distinctly made by counsel, or fully consid- ered, or expressly adjudged by the court. Hence we have spoken of these eases as silently recognizing the validity of bequests providing for an election by slaves of free- dom or servitude. The legal capacity of slaves to make OF ALABAMA. 189 Cresswell's Executor v. Walker. such election has been rather assumed than settled in them. Consequently, with the single exception just mentioned, they have hot the weight which would attach to cases in which the question had been directly made and argued by counsel, and fully considered, and dis- tinctly decided by the court. Assuming, then, that the trust in this case cannot be executed in the manner pointed out by the testator, un- less the slaves choose to be emancipated, the question is, whether the making of this election is an act which slaves have the legal capacity to perform. Can a mas- ter, by his will, clothe his slaves with the irrevocable power of determining and changing, by an uncontrolla- ble act of their will, their own civil status? Before we can give an affirmative answer to these questions, we must be prepared to say, that a master may confer upon slaves the legal right to acquire for themselves, by their own unforced and unrestrainable act, benefits and privi- leges inconsistent with the condition of slavery, and, at the same time, and by the same act, to divest the prop- erty rights of others. So far as their civil status is concerned, slaves are mere property, and their condition is that ol absolute civil in- capacity. Being, in respect of all civil rights and rela- tions, not persons, but things, they are incapable of own- ing property, or of performing any civil legal .act, by which the property of others can be alienated, or the re- lations ot property, or legal duties or trusts in regard thereto, in any wise affected. In a late case, the supreme court of Xorth Carolina used this language: "Under our ■m of law, a slave can make no contract. In the nature of things he cannot. lie is, in contemplation of law, not a person for that purpose. lie has no legal ca- pacity to make a contract; hk h&s no legaLmkd. He is the property of his master, and all the- proceeds of his tybor belong to his owner. If property is devised or ; to him, the devise or bequest is void, and the persoi n either belongs to the giver, i i the prop- erty of the owner. A slave has no legal status in 190 SUPREME COURT — ■ — . » . Cresswell's Executor v. Walker. courts, except as a criminal, or as a witness iu certain cases."— Butler v. Faulk, 4 Jones' L. R. 233. Chancellor Kent, in speaking of the'laws of the south- ern States on the subject of negro slavery, says: "They are, doubtless, as just and as mild as is deemed by those governments to be compatible with the public safety, or with the existence of that Bpecies of property; and yet, in contemplation of their laws, slaves are considered, in some respects, as things, or property, rather than persons, and are vendible aa personal estate. They cannot take property by descent or purchase; and all they find, and all they hold, belongs to the master. They cannot make lawful contracts, prived of civil rights." — 2 Kent, 253. So, in Emerson v. 1 lowland, (1 Mason's R. 45,) Judge Story says, that the slave "has no civil rights or privileges" In the case of Girod v. Lewis, (6 Martin's R. 559,) it is Baid, thai slaves have no legal capacity to assent to any contract; that whilst, with the consent of the master, they have the moral power to enter into such a connec- tion as that of marriage, the marriage, whilst they re- main in a state of slavery, could be productive of no civil effect, ' I of all civil rights. The numerous derisions in which it has been held, that a promise made to a slave, or for his benefit, is not en- forcible in any legal tribunal; that a slave cannot sue or ued, except that he is clothed with the statutory right of instituting a suit for freedom; that he cannot ire or own property; thai he has no legal capacity t<> make a contract, not even that of marriage, — all proceed upon the fundamental idea, that our slaves have no civil or social right-, and are incapable of per- forming by their own volition, and as a matter of right, any civil act which can be made the lawful foundation of iig new rights in themselves, or of divesting the ex- isting rights or determining in any respect the legal du- ties of others. According to the legal conception of slavery, as it ex- ists in the southern States, a human being endowed with OF ALABAMA. 191 Cresswell's Executor v. Walker. civil rights cannot be a slave. The possession of these rights is incompatible with the condition of slavery, and any attempt to confer them upon a slave, durante sercitute, > is an effort to accomplish what is legally impossible. Our law recognizes no other Status than that of absolute freedom, or absolute slavery; and the courts have uni- formly rejected, as a legal solecism, the idea that a slave, while a slave, can be invested with civil rights or legal capacity. — Abererombie v. Abercrombie, 27 Ala. 494» Therefore, any attempt of a master to clothe his slave with the power to perform an act, which involves the ex- ercise of civil rights and legal capacity, must, in the na- ture of things, fail. It seems too clear for dispute, that, where a bequest is made to depend upon the declaration by the legatee of liis election to accept the gift, the making of this elec- tion is a civil act. If a grant of an estate be made to a person, on condition that he would electa trade; or, if a bequest be made of either one of two named slaves the legatee may choose, if he will elect between the two. it could not be seriously contended, that the making of the election would not be a civil act. Purely that is a civil act, the performance of which cither creates or di- 3 valuable rights, or imposes a legal duty, or perfects a trust, which courts may enforce. So, when the act of .\< , in choosing between freedom and slavery, is a necessary step in the execution of a trust, the election is a civil act, and the trust is void, because it presupposes and requires that a slave, durante servitute^ shall be invested with privileges which do not and cannot belong to one in his condition. Such a bequest is an effort on the part of t; tor to impart to slaves rights which belong ex- \ ■•■ly to freemen — thus placing them In that middle ■'. ' en absolute freedom and absolute sla\ b our law, upon grounds of paramount public policy, :o recognize as legally possible. It i human being-;, and are endo 1 with intellect, < on-. ,,1 will. Their moral and in - . qualiti rmine, to a considerable extent, 7 192 • SUPREME COURT Cresswell's Executor v. Walker. their value, and are often looked to in ascertaining the rights and liabilities of others in relation to them as ar- . tides of property. — See Young v. Burton, 1 McMull.Eq. 255; Bean v. Summers, 13 Gratt. 412; Boyce v. Ander- son, 2 Peters, 150. Being endowed with intelligence, conscience, and volition, they are deemed capable of com- mitting crime; and the same public policy which, so far as the performance of civil acts is concerned, refuses to consider them as persons, gives them a criminal status, and recognizes tbcin as persons in respect of acts involv- ing criminal responsibility, Because they are rational human beings, they are capable of committing crimes; and, in reference to acts which are crimes, are regarded as persons. Because they are slaves, they are necessarily, and, so long as they remain slaves, incurably, incapable of performing civil acts; and, in reference to all such, they are things, not persons. This obvious distinction is overlooked by Mr. Cobb, in his criticism of the decision in Carroll v. Brumby. — See Cobb on Slavery, § 363. So far as civil acts are concerned, the slave, not being a person, has no legal mind — no trill which the law can recognize. But, as soon as we pass into the region of crime, lie is treated as a person, as hav- ing a legal mind, a will, capable of originating acts for which, he may lie subjected to punishment as a criminal. Considered in his relation to this latter class of acts, the theory of a complete annihilation of will in the slave, is lly unfounded; while in relation to the former class of acts, it is entirely consistent, and, indeed, is the only theory that can be consistent, with the fundamental idea of negro slavery as it exist! with us — namely, that in re- spect of civil rights and legal capacity to perform acts of a civil nature, the slave is not ;> person, but a thing. It must not be suppled from what has been said, that, our laws fail to afford slaves adequate protection against oppression or injury. This protection is not only etecurea by the fundamental law, the constitution of the State, (Art. •■/<, are proved to us to have been truly presented to the circuit judge; not in part, but as a whole. Anything short of this, is not a true statement of the points and decisions sought to be reviewed. Motion refused. * • SU1 >URT Williams v. lv«-y. WILLIAMS . ivky. SD false inpri.»onv.:nt.] 1. D t» in trupau and cmc. — The forms of c plaint prescribed in thi and 2. /.' i ill and bat- ■ onni'-m I on nit :iii'l adm arr id man t ui t&s wliich is not void on its from th art <>f Lown the I ! TV -inplaiiit in thi- case wa- in t) :i Williams ") \ The pfaintii de» ::im-l I\ I and b| »mmitted by the ndant on the plaintif m the 10th Jan I). 1 "The plaintifl claii ndant twenty thou- dollars, as dan >r maliciously, and without d imprisoning him, plaintiff^ on a for twei A. !>. 1 • . Wherefore he brin nit." implaint, for a i join ■ ftined the demui holding, that tin trespass, and the ond Tin- plaintiff then amended his complaint, by. striking out the first coaot; and a trial was had bt- ned on the plea of not guilty to the : ■; I During the 1 lull of exceptions shows, the plaintiff proved, in that, on the day OR ALA RAMA. .199 Williams v. tvey. iti the complaint, he and hi- .-on, Elijah Williams, -while nding through the swamp, were stopped by the defend- ant, who was accompanied and assisted by a white man find two negroes, wepe forcibly seized and tied, alter* a severe struggle, and were carried before a justice of the peace, before whom the defendant preferred agaii a charge of stealing his nogs, and had a warrant issued for their arrest and imprisonment; and he then proposed to prove the proceedings which were afterwards hadunderthe warrant, up to the time of his discharge. The court chid . because the affidavit and wan ant of arrest were not produced; and after the plaint i fl had closed his evidence, (the defendant adducing no evidence,) the court excluded from the jury, as irrelevant, all the evidence which the plaintiff had introduced; to which several rulings of the court the plaintiff excepted. The sustaining of the demurrer to the complaint, and the rulings of the court on the evidence, are now assigned as error. J. Keister, for the appellant, cited Sturdevaut v. 5 Ala. 135; R igsdale v. How. \ la. 62; I v. Furni -. 19 Ala. 760, Baixe & NeSmith, 1 1 Chitty's Pl< p. 184, 18; Stalling man. 26 Ala. 300. •ONE, .T. —[April 9, 1861.]— Tb ount in the plaint is a substantial C >rm fur- nisbed by tl .it and batti and >unt in tl »UH< is a form, the caption ol v. ■ • ' i the inquiry, whether . e. We hold, thai it was ant in u o 00 SUPREME COURT Williams v. lvey. indicates the action of trespass, (2 Chitty's PI. m. p. S57,) and is a verv inappropriate designation of an nction on the' case for a malicious prosecution. — 2 Chitty's PL in. p. GOO. —The count contains no words descriptive of an arrest under process, or of discharge therefrom, which are essential in a complaint for a malicious prosecution. 'Ragsdale v. Bowles, 16 Ala. 62; Sheppard v. Furniss, 19 Ala. 760. In the two cases cited supra, from 16th and 19th Ala., the declarations contained clearer marks of the action for malicious prosecution, than the second count in the pres- ent complaint does; yet this court ruled each of those counts to he in trespass. In the trial of the cause, the circuit court proceeded on the opinion, that the second count in the complaint, on which the trial was had, was a count in case. Hence, that court excluded much evidence of assault and battery, imprisonment without process, &c, which was legal evi- dence in an action of trespass vi ctarmis. This ruling of the court being based on an erroneous judgment as to the form of action, it results that the circuit court cried in this particular. We need scarcely add, that on a trial in trespass for an assault and battery, and for false imprison testimony of a prosecution under warrant and arrest, which are not void on their face, is not relevant. — Duck- worth v. Johnson, 7 Ala. 578; Crosby v. Hawthorn, 25 Ala. 221. Reversed and remanded. OF ALABA MA. 201 Steele &- Burgess v. Townsend. STEELE & BURGESS vs. TOWNSEND. [ACTION BY COMMON* CAUKIER KOU FREIGHT — RECOUPMENT OF DAMAGE TO GOODS.] 1. Liability of common carrier for negligence. — A common carrier can- not limit his common- law liability by any general notice, but may eo limit it by a special contract with the shipper; and a bill of lading, given by the carrier on the receipt of the goods, and ac- cepted by the shipper, is a special contract within the meaning of this rule ; yet such special contract cannot be pleaded by the car- rier, as an exemption from liability for any loss or damage resulting from his own negligence. 2. Relevancy of evidence on question of negligence by common carrier. — In an action against a common carrier, to recover damages for in- juries to goods shipped by sea, (or where the same matter is relied on as a defense against an action by him to recover freight,) the fact that similar goods, shipped by sea to the port of delivery, usually arrived safe and unirjjured, would be admissible evidence against him, as a circumstance tending to show that any damage by breakage was the result of negligence on his part; and t con- verso, the fact that such goods usually arrived in a damaged and broken condition, is admissible evidence for him, as tending to show that the breakage was not the result of negligence on his part. (Explaining and limiting first head-note in O'Grady v. Ju- ti&n, $4 Ala. 88.) 3. Bunfan of proof on question of negligence by common carrier. — Where the bill of lading contains an express stipulation, that the carrier is •• not accountable for rust or breakage," proof of injury to the •i- by breakage nevertheless makes out a prim .se of igence against him ; and the onus is then on him to show the exercise »f duo care and vigilance on his part to prevent the in- jury : unlets the nature of the injury, or of the goods, of it~elf fun idence that due care and diligence could not liave pn-\ en ted the injury. Ai'PKAL from the Circuit Court of Mobile. Tried before the Hon. C. W. Rapier. This action wee brought by the appell< cover of the appellants ? S J 32, "for freight, primage and aver- U SUPKEME COURT & Burgess v. Townsend'. due from said defendants to plaintiff, upon, for, and t oi' the conveyance of divers goods, merchandize and on board the plaintiff's schooner R.W.Tull, from the port of Philadelphia to the port of Mobile ;" and the complaint alsq contained a count for work and labor, and a count on an, account stated. The defendants ded, "in short by consent, payment, set-off, and i assumpsit." On the trial, as the bill of exceptions shows, the plaintiff read ^in evidence the bills of lading- for goods, which contained a clause in these words, "Kot accountable for rust or breakage ;" aud proved the d ery of the goods to the defendants in Mobile, and the value of the freight. The goods consisted of stoves, ket- pots, pans, &c. "The plaintiff introduced evidence, also, that the goods were well stowed, and were not broken or damaged in discharging them, aud that proper care and skill were employed in discharging them from the vessel ; also, that his witnesses had never seen like goods I. The defendants' evidence tended t© show, that the cast-iron ware, stoves, &c., were much broken upon the vessel, and upon the wharf, and before the de- y to the defendant's drays; that the breakage of the good 1 - was equal tto the amount of the freight claimed; and that some of the br . as appeared by the frac- ttfres, ery recent, and seemed as if it had been done within an hour. One witness, who had much experience in the business of receiving like wares shipped from hern ports, testified, that he had never seen a ship- t of sto' afljy broken; while other witne i. that there was not more break- than usual in such shipments. The plaintiff of. that shipments of east-iron hollow wai . g to Mobile upon vessels by sea, wore usually in a damaged and en condition on their arrival. The defendants ob- jected to this evidence, and excepted to its admission inst their objection. The plaintiff offered evidence, also, without objection, to show that stoves were espe- cially brittle, and liable to damage aud breakage.; and it OF ALABAMA. 203 Steele & Burgess v. Townsend. was also proved, that such wares, unless careful])' han- dled, were liable to break, no matter how well stowed. It was in evidence, also, that the plaintiff was master of the vessel, a common carrier, on which the goods were shipped; but there was no evidence to show any sj contract for the carriage of the goods, other than the bills of lading, which were admitted to be genuine." "The court thereupon charged the jury, (among other things,) that if the goods mentioned in the bills of lading were of i brittle nature, and very liable to rust and i ago in the transportation and handling, then the excep- tion in the bills of lading, 'not accountable for n breakage,' was, to some extent, valid in favor of the plaintiff: that, notwithstanding that clause in the bills of lading, the plaintiff was bound to use the highest d*< of diligence, according to the nature of the goods, to avoid damage to them ; but, that if, after using such dili- gence, and taking the greatest care, they were broken without any neglect or want of care on his part, then, under his bills of lading, he would not be liable in dan for such breakage, nor would the same be a defense or to his right to recover freight. "The defendants excepted to this charge, and, . asked the court to charge the jury — '1st, that if there no other evidence of a special contract or agree; than the words 'not accountable for rust or breakage' in the bills of lading, these words did not show such ;: mtract trrier and the shipper . ■ ■ ' limit the responsibility of the former as to break that if tl .11 good order when re plaintiff in Philadelphia, and in bad order ' landed in Mobile, the plaiatifl could only dischai self by showing that he had not been negligent, and had • •<• which the nature of the artn from the time he received them in good order in i til he delivered them to t! The court refused to give I to their court did give the second cl SUPREME COURT e & Burgees v. Townscnd. word 11$ before the words bad order ; to which qual- ification the defendant also excepted." The several raliugs of the court to which, as above stated, exceptions were reserved, are now assigned as error. R. B. Armistead, for appellants. — 1. The circuit court erred in the admission of the evidence excepted to. O'Grady v. Julian, 34 Ala. 88; Gilmer v. City Council, 26 Ala. 665; Hubbard v. Railroad Co., 39 Maine, 506, and cases cited. 2. It has been generally held in this country, that a common carrier cannot limit his responsibility by a gen- eral notice, but may so limit it by a special contract. 1 Smith's Leading Cases, 325-6; 1 Parsons on Maritime Law, 177; 10 Wendell, 23-J ; 9 Watts, 87; 5 Rawle, 179; G How. U. S. 344-82 ; 2 Kelly, 349 ; 16 B. Monroe, 643; . 2 Kent's Com. (9th ed.) 820, and note. The insertion of a particular clause in the bill of lading, which is the act of the carrier himself, docs not amount to a special con- tract, unless the assent of the shipper is clearly shown. 1 Newberry's Adra. 464; 6 Johns. 170-80; 6 How. 382. 3. If the carrier received the goods in good order, and delivered them in bad order, the onus was on him to ex- cuse himself by proof of due care and diligence. — 1 New- berry's Adm. 464, 505; 9 Rich. 201 ; 12 Howard, 272-80. A. R. Manning, contra, — 1. A common carrier may, by special contract with the shipper, limit his responsibility; and the bill of lading is the proper evidence of such spe- cial contract.— Angell on Carriers, §§ 220, 221, 223, 225, 23", 15ft 166; EdwardB oq Bailments, 468; 6 How. U. S. 382; 1 Kernan, 486, 491-2; 4 Sandf. 141; 4 Taun- ton, 126: 6 Porter, 131; 31 Ala. 506. 2. It being shown that the damage to the goods resulted from the cause specially excepted the emus is on the ship- per to show negligence on the part of the carrier. — An- gell on Carriers, §§ 61, 276; Story on Bailments, § 573; 5 B. & Cr. 326; HMetcalf, 461; 28 Ala. 412; 34 Ala. 174. OF ALABAMA. 205 Steele & Burgess v. Townsend. 8. The evidence objected to was relevant and proper. Donnell v. Jones, 17 Ala. 695; Ingram v. Lawson, 37 Eug. Com. L. 350. R. W. WALKER, J.— [March 1st, 18G1.]— 1. Whatever doubts may at one time have been entertained on the subject, it is now well settled, that, although a common carrier cannot limit the liability which the common law devolves on him by any general notice, he may do so by special contract with the shipper. — Dorr v. N. J. Steam Nav. Co., 1 Kornan, 490-91; S. C., 4 Sandf. Sup. Ct. R. 111-2; N. J. Steam Nav. Co. v. Merchants' Bank, 6 Howard, 382; Ang. Carriers, §§ 220, 221, 225,238; 1 Parsons on Contr. 203-4. And it seems to be considered, that a bill of lading, given bj" the carrier on receipt of the goods, and accepted by the shipper, is a special con- tract between the parties, within the meaning of this rule. — Dorr v. N. J. Steam Nav. Co., 1 Kernan, 486, 491 ; Edwards on Bailments, 468 ; Swindler v. Ililliard, 2 Richardson, 303; Story on Bailments, § 550. Yet such contract, limiting his common-law responsibility, cannot be pleaded by the carrier as an exemption for any Or damage resulting from his own nesrlio;ence. — X.J. Steam Nav. Co. v. Merchants' Bank, 6 Howard, 144; D«»rr v. Steam Nav. Co., 4 Sandf. 136; Swindler v. Ilil- liard, 2 Rich. L. 286; Baker v. Brinson, 9 Rich. L. 201; Davidson v. Graham, 2 Ohio St. R. 131; Graham v. Davis, 4 Ohio St. R. 362; Merriman v. Brig Mary Queen, 1 Newb. Adm. R. 464; 1 Parsons' Mar. L. 179, note. -. A- the exception contained in the contract did not have the effect of relieving the plaintiff from liability for any "breakage" whieh was the result of his peglig< it follows, that evidence tending to show that the br« age complained of was not the result of the plaintiff's liegligen admissible in his behalf; and we hold, that, |',.r thifl purpose, it was competent for the plaintiff to show, that articles similar to those s }»<■<■ i 1 D • 1 1 in the bill of lading, coming to Mobile upon vessels b ( frere usually in a damaged and broken condition on their an i- SUPREME COURT . Townsend. articles, when shipped by sea, usually arrived , : s would be a circumstance tending to show the -'breakage," when any did occur, was the result jence on the part of the carrier. The contrary | f would have a contrary tendency. — See Ingram v. ! . 37 Eug. Coram. L. R. 350-1; Donnell v. Jon.?, 17 AJa, : Th ion of this court in O'Grady v. Julian, •is relied on by the counsel for appellant, as in conflict with the opinion here expressed. It is pos- sible that, in the case just cited, the court may have 1 an improper construction upon the language of the bill ■ ; 'lions. But the evidence which was there to be inadmissible, was understood by the court as i:)L r to the usual profits made by Jar establish* ments in the neighborhood, and not as referring to the < >f profit realized by similar cstablish- the neighborhood. The decision was intended to apply, and must be confined, to cases in which it is I toprove the profits of particular establishra i lake individual instances, and prove the itting which o nullify the issues indefinitely. The difficult point in the en upon the charge which v i by the defendants, and which the court In: • ements, limiting the carrier's ility, Nelson, .'., in delivering the opinion inNew. m Navr. Co. v. M ts' Bank, (6 Howard U. S. this langirage: "The owner of goods, by into the contract, virtually agrees that, in to the particular transaction, the carrier is not re- in the exercise of his public employment, but as a person who incurs no responsibility beyond that ilee lor hire, and answerable only for miscon- i Sandf. Sup. C. R. 145; 1 ' nan, !•'■>. And it has been held on several occa- is, that, altho al contract, qualifying a car- rier's responsibility, does not exempt him from liability OF ALABAMA. 20T Steele & Burgess v. Tow, for loss resulting from his negligence; yet that, in . the burden of proving negligence is on the ship Authorities supra; Clark v. Barnwell, 12 Howard U. Hunt v. The Cleavoland, G McLean, 26; 8. 0., 1 Newb. 222-3; Brig. Mary Queen, 1 Xewb. 404; see 1 Parsons' Mar. Law, 150-1 ; Aug. Carr. §§ 61, 276. On the other hand, and in eases in which the question \ed the most thorough consideration, it has been de- l, that where there is a special contract, limitio the carrier's responsibility, the onus of showing, not only that cause of the loss was within the terms of th tiou, but also that there was no negligence, is on the car- rier.— Swindler v. Ililliard, 2 Rich. L. K, 286 ; Bali Brinson, 9 Rich. L. 201; Davidson y! Graham, 2 Ohio :;. L31; Graham v. Davis, 4 Ohio St. II. 302; Can mboy R. R. Co. v. Baldauf, 10 Penns. St. 1:. . ' . 219. Lthout adopting this rule in the terms in which here we think it is so far true in the pre* an injury by "breakage" to the articles shipp not brought within the terms of the exception, un! town that the "brealqage" was not the result of the negligence of the carrier. In other words, the < tion includes only such break: are and dili could not prevent; and the injury is not with": ceplion, until it is shown that it occurred notwitl cise of such care and diligence. It is no irate to say, that the onus is on the carrier to only that th< of loss was within the exception, but also that he exercised due care. The correct vi that th not brought within the exception, u it appears to have occurred i the part of the carrier; and, as it is for the carrier himself within the exception-, he mast injury \ It i . by the i ii found in tbie bill ter i 208 SUPRKMK COURT — — — — — — — ^— — — — 1 ■ .-» ele ft Burgess v. Townsend. •da still remains, notwithstanding this feature of the contract, a common carrier: his liability only, to the •it of the exception, is diminished. "In all things . the very same principles apply. Care and diligence arc still elements of the contract, and 'strict proof is properly required, before any exemption may be claimed." 9 Rich. 203. In most cases of bailment, the bailee is chargeable, uot by the delivery of the goods, but by reason of negligence. Hence, in the case of ordinary bailments, the general rule is, that to hold the bailee responsible, negligence must be alleged and proved; though some courts have considered that the bailee should be held to proof of the facts and circumstances under which the loss occurred. — Clarke v. Spence, 10 Watts' R. 335; Logan v. Mathews, 6 Barr, 417; Swindler v. Ililliard, 2 Rich. L. 305-6. But in relation to common carriers, the rule is, that, in all cases of lo3S, the onus probandi is on the carrier to exempt himself from liability; for prima facie, the law imposes the obligation of safety upon him. Consequently, the owner is bound to prove no more than that the goods were delivered to the carrier, and that the latter had not delivered them to the consignee. These facts constitute prima-facie evidence of negligence or misconduct. — Angell Carr. § 202; Story Bailm. § 529. By the common law, the carrier is responsible for all s, except 6uch as result from the act of God, or the pubiic enemy. Hence, his liability is not confined to such is as are the consequences of his own negligence, or want of skill. He is liable for losses by accident,' mis- take, and numerous unavoidable occurrences, not falling under the head of acts of God or the public enemy, and against which it is not within the reach of human vigil- ance or foresight to provide. For losses occasioned by the wrongful acts of third persons, by accidental fires, by robbery, or by the violence of mobs, which neither the carrier nor his agents can resist, or by any vigilance avoid, he is responsible.— 1 Smith's L. C. 315; 2 Ohio St. R. 137. The liabilities of a common carrier are thus dis- OF ALABAMA. 209 Stole &, Burgess v. Townsend. tinguished into two classes: the one, a liability for losses by neglect, which is the liability of a bailee; the other, a liability for losses by accident, or other unavoidable oc- currence, which is the liability of an insurer. In Uiley v. Home, (oBing. R. 217/j Best, C. J., uses this language: "When goods are delivered to a carrier, they arc usuall}^ no longer under the eye of the owner; he seldom follows, or sends any servant with them, to the place of their des- tination. If they should be lost or injured by the grossest negligence of the carrier or his servants, or stolen by them, or by thieves in collusion with them, the owner would be unable to prove either of these causes of loss. His witnesses must be the carrier's servants; and they, knowing that they could not be contradicted, would excuse their masters and themselves. To give due secu- rity to property, the law has therefore added to that re- sponsibility of a carrier which immediately arises out of his contract to carry for a reward — namely, that of taking all reasonable core of it — the responsibility of an insurer. From his liability as an insurer, the carrier is only to be relieved by two things, both so well known to all the country when they happen, that no person would be so rash as to attempt to prove that they had happened when they had not; namely, the act of God, and of the king's enemies." On grounds of public policy, the courts have manifested a disposition to construe any new exceptions to the lia- bility of a common carrier, strictly against him. — Atwood v. Transportation Company, 9 Watts, 87. Without the ption, the carrier would be liable as an insurer, for a I from the specified cause; and the only legitimate : of the exception is, to relieve the carrier from this extraordinary responsibility for a loss winch could not have been prevented by proper care and diligence on his part. When, therefore, a carrier, as in this case, pro- ountability for "rust or breakage," the proper construct inn of the exception is, that the '.wrier is not to be held liable as an insurer for "rust or break- age" which occurs without id his part) but 210 SU PREME COURT e & Burgess v. Townsend. he remains, as before, responsible for any injury of the kind mentioned, if .caused by bis failure to exercise the degree of care which the law demands of every com- mon carrier, in respect of the goods committed to him. The makirg of such exception does not change the char- acter of the employment, or the rules ot evidence before applicable to the subject. Hence, a prima-facie case of negligence is made out against the carrier, by showing that the goods were delivered to him, and that he has cither not delivered them at all, or has delivered them in an injured condition. Where a carrier seeks to bring a loss within the com- mon-law exception of "an act of God," he cannot throw upon the employer the burden of proving or inferring negligence or defective means in the carrier, until he has shown the intervention of such an extraordinary, violent and destructive agent, as by its very nature raises a pre- sumption that no human means could resist-its effect. — 1 Smith's L. C. (oth Am. cd.) 318; Coosa R, Co. v. Bar- clay, 30 Ala. 128-9; Steele v. McTyer, 31 Ala. 676. "The true view is, not that the carrier discharges his liability by showing an act of God, and is then responsible, as an ordinary agent, for negligence; but that the intervention of negligence breaks the carrier's line of defense, by showing that the injury or loss was not directly caused by the act of God, or, more correctly speaking, was not the act of God."— 1 Smith's L. C. 31!). In like manner, the exception of "perils of the sea," and "dangers of the river," means such as cannot be avoided by the exercise of that discretion and care, which the law requires of common carriers; and to ascertain whether a loss falls within the exception, it must be in- quired, whether the accident could have been prevented by the exercise of proper foresight and diligence. — 1 Smith's L. C. 310; Williams v. Branson, 1 Murphy, 417; Marsh & Houren v. Blithe, 1 N". & McC. 170; Jones v. Pitcher, 3 St. & P. 13:;, 171. Thus, where goods were received on board a steamboat, and the bill of lading contained an exception of "dangers of the river;" and OF ALABAMA. 211 Steele & Burgess v. Townsend. the loss was occasioned by the boat's striking on a sunk- en rock; it was lie Id incumbent on the carrier to prove that due diligence and proper skill were used to avoid the accident.— Whiteside v. Russell, 8 W. & S. 44. The same" principle' must apply to the present except tion. The proof of injury makes a prima-facie ease of neg- ligence against the carrier; and he does not bring th jury within the exception, until he shows the exercise of due vigilance on his part to prevent the injury ; indeed^the nature of the injury, or of the property, be such as to furnish, of itself, evidence that due car. diligence could not have prevented the injury. There is no hardship in such a rule, and many na unite to commend it to our approval. It is of the utmost importance to the commerce of the country, that carriers should be held to a strict accountability. On this subject, we concur in the remark of Chief-Justice Gibson) that, "though it is, perhaps, too late to say, that a currier may not accept his charge in special terms, it is not too late to say, that the policy which dictated the rule of the common law requires that exceptions to it be strictly in- terpreted, and that it is bis duty to bring his case strictly within them."— 9 Watts, 87. This is especially so in reference to exceptions inserted in bills of lading. Goods unmonly sent by the owner to the carrier's pla< business, where they are received, and the bill of lading made out by the carrier, or his clerk. It is often not seen by the owner, until it is too late to insist on a chi in t' c considerations have indu emitc nt judge to say, that the better rule, perhaps, would '! Bach provisions in bills of lading as void, unless inserted by the express consent of the employer. Black, C. J., in Ghouteauxv. Leach, 18 Penn. 288. of the introduction of steamboats and rail- that common carriers have, to a great extent, .'•lusive posse- imi <»f the public thoroughly- the country, and have it in their power to impose their own terms u] ners of goods, who, ind it to employ them. The owner 212 SUPREME COURT McGehee v. Mahone. litional bill of lading, because he cannot, well help it. He must have his goods carried, and lie sees that the. car- rier will refuse to take them, unless the prescribed terms are accepted. The owner seldom accompanies his prop- erty, and, in case of loss or injury, however gross the negligence maybe, is unable to prove it, without relying upon the servants of the carrier, — the very persons, gen- erally, by whose negligence (if there was negligence) the goods have been lost; whose feelings, wishes, and inter- ests, are all against the owner, and who are, as a general rule, only too ready to exculpate themselves and their employer. Of the manner of the loss, the owner is, gen- eral ly.jjjenti rely ignorant, while the carrier and his ser- vants may be reasonably supposed to be fully advised in regard to it; and "that is a sound rule, which devolves the onus on him who best knows what the facts are." The result of what has been said is, that if the goods were in good order when received by the plaintiff in Philadelphia, and in bad order from " breakage" when delivered in Mobile, it devolved upon the carrier to show, that proper diligence and skill were exercised to prevent the injury; unless, as before remarked, it appears that the nature of the injury, or of the property, is such as to show, of itself, that due care and diligence could not have prevented the injury. The charge asked should have been given. Judgment reversed, and cause remanded. McGEIIivi; vs. MAHONE. [ DETINUE KOU SLAVES,] 1. Admissibility of subsequent declarations explanatory of admissions. — Plaintiff having proved, that the slaves in controversy were not included by the defendant in the schedule of his taxable property, OF ALABAMA. 213 McGehee v. Mahone. which was rendered to the assessor on oath,. and were included, in the schedule of the plaintiff's property, which was given in at the same time hy his son, in the defendant's presence; the defendant cannot be allowed, for the purpose of rebutting the presumption arising from this evidence, to prove that he afterwards corrected his schedule, and what reasons he then assigned to the assessor for his former conduct ; ami t lie fact that, when first giving in his schedule, "he asked leave of the assessor to correct any mistake, and said something about getting advice," does not affect tho principle. 2. Admissibility of party' s declarations as evidence for him. — The dec- larations of a party are, prima facie, not admissible evidence for him; and the fact that a witness, when cross-examined, "for the sole purpose of contradicting him," touching his own declarations at a particular time and place, states -'that he cannot answer the question without giving thedeelarations of the defendant nvuleat the same time," is not, of itself, sufficient to show error in the ex- clusion of the defendant's declarations. 3. Bailor's right to terminate bailment. — If the bailor of slaves, when delivering possession to the bailee, declares that he gives or lends them to her, " but subject to his call at any time," his right to ter- minate tin' bailment, and reclaim the slaves, is not necessarily limited to the life-time of the bailee. Appeal from the Circuit Court of Butler. Tried before the lion Nat. Cook. This action was brought by Thomas Mahone, against Augustus McGehee, to recover several slaves, together with damages for their detention. It appeared from the evidence on the trial, that the slaves had once belonged to the plaintiff, and had been either given or loaned hy him to his daughter, who married the defendant in April, . and died about one year afterwards, leaving an in- fant child, who also died before the commencement of lit. The defendant's evidence conduced to show, that the plaintiff gave the slaves to his daughter, by parol, time before her marriage, and afterwards retained them, under a contract of hiring, until the close of the 1856, when he sen! them to the defendant's house; While the plaintiff's evidence tended to show, that he de- livered tin' slaves t<> the defendant, alter his marriage with plaintiff's daughter, under a loan or bailment, and de- Mc< rehee v. Sfahone. the time, "that he gave or loaned them to de- mbject to his call at any time." . that, after the death of the de- wife, his son and the defendant went t< to th !', to give in their taxes, and had some conversation as to giving in the slavi cont; that the defendaut did not give iu said ne- to the : his property, and swore to his lode of taxable property; that said negroea von in at the same time by plaint, . in defendant's ] , as the property of the plaintiff; and that the fendant remarked, when he gave in his list, that he ided to give in said negroes, but that plaiuti had relieved him of that. It was further shown, that md plaintiff's son then left the assessor, and went did nol again return together to thi r. It was shown, however, that the d ; his taxes, asked leave of t ; 6or t'» correct auy I mcthing ah :' the presumption arising from . the I to prove, by I . that on e in his taxes, hut on* another occasion, K-liat, by giving in said e b liis own. T '1 this evidence, at I and the defendant excepted. The i prove, for the purpi • Ibut- ptiou, that he said to th tiff not being present,) that the did not give in said negroes in the lis list, was, thai i had heard plain married the defendant, that said .. . a id lie had - and on had tal d what plaintiff had I to permit this ■id the defendant ed." "The plaintiff introduced one William F. Mahone i OF ALABAMA. 215 bee v. Mai witness, who testified to declarations of the defendant, ftfter the death of his wife, as to the ownership of the negroes, and in disparagement of* his title, made on the i iving in the tax-list. On cross-examination of said witness, and for the sole purpose of conti him, the defendant proposed to ask him, what he (said witness) had said to one Morrison, at said Morrison's •, three or four days after the tax-list was pf the defendant he had proved on the day of giving in their taxes; and the court said., that the question might he asked. The witness stated, that lie could not answer the question, without giving the decla- rations made at that time by the defendant, who was pres- ent with him and Morrison; and the court said, that the declarations of the defendant could not he given ; to which the defendant excepted." "The defendant asked the court to charge the jury, that if they found, from the evidence, that there was no valid of the slaves before the marriage of plaintiff's .liter with defendant; and that the plaintiff said to ndant, at the time the into the defendant's possession, that he gave or loaned ndant's fc wife, but subject to his call at any ; and that he never did call for them, or mal nt's plaintiff could not recover in this action." . and the Tl ■ n the evidence, and the re- the 216 SUPREME COURT Mo< rehee v. Mahone. evidence for that purpose, the declarations of the defend- ant, constituting a part of the same conversation, there- by became competent also. The declarations of defend- ant, in such case, stand on the same footing with the declarations of third persons, which are always received, though mere hearsay; and to exclude such declarations, whelLer made by a party or by a third person, would, in most cases, deny the right to impeach a wituess by proof of contradictory statements. D. W. Baine, with Goldthwaite, Rice & Semple, contra. 1. The corrected tax-list was the best evidence to prove the correction, and should have been produced, or its ab- sence accounted for, before the same fact could b? proved by the assessor. — Smith v. Armistead, 7 Ala. G98 ; Cole v. Spann, 13 Ala. 537; Ware v. Roberson, IS Ala. 105. 2. The defendant's subsequent declarations to the as- sessor, formed no part of the transaction proved by the plaintiff, and were not made in the plaintiff's presence, Stewart v. Sherman, 5 Conn. 241; Ogden v. Peters, 15 Barboar, 562; Roberts v. Trawick,22 Ala. 493; Smith v. Onreton, 31 Ala. 652. That the defendant, when giv- ing in his tax-list, asked or reserved the right to correct mistakes, makes no difference in the application of the principle; he had the right to correct mistakes, without such reservation. The case of an original and amended bill in chancery is analogous. — Pearsall v. McCartney, 28 Ala. 110. 3. Tuc proper question was not asked to impeach the tritness Mahone. — 1 Greenl. Ev. 514. If the question had been proper, non constat that the defendant was in- jured by the ruling of the court, since the record does not show that the declarations of the witness were exclu* ded. The declarations of the defendant were, at least prima f aoU, incompetent evidence for him; and it was incumbent on him to show some special circumstances which justified their admission. A. J. WALKER, C. J.— [Feb. 15, 1861.]— A party OF ALABAMA. 217 McGehee v. Mahbne. cannot counteract admissions, proved to have been made by him, by evidence of posterior declarations, made on a aifferent occasion: — Peat-sail v. McCartney, 28 Ala* 110, 126; Roberts v. Trawiek, 22 #. 400-4W4; Lee v. Hamil- ton, 3 lb. 529. The declarations, the exclusion of which is the subject of the second exception, manifestly fall within this rule; and were properly held inadmissible. But it is claimed that the act, for the rejection of the proof of which the defendant made the first exception named in the bill of exceptions, must be excluded from the operation of that rule. The plaintiff proved, that defendant was present when the plaintiff's son gave in the slaves in controversy, to the tax-assessor, as the taxa- ble property of the plaintiff"; and that the defendant did not include the slaves in the list of taxable property ren- dered by him. It appeared, however, that on that occa- sion, the defendant said, that he had intended to give in the slaves in controversy as his property, "but plaintiff's son had relieved him of that; and, also, that the defend- ant asked leave of the assessor to correct any mistake, and spoke of getting advice. The defendant proposed to prove that, afterwards, on the same day, he gave in to the assessor the said slaves as his taxable property. If the proposed evidence ought to be excepted from the iral rule, it is upon the ground, that the defendant qualified bis conduct, and weakened the admission to be argued from it* by saying that he had intended to give in th'.' slaves as his property, but was relieved of it by the plaintiff's son, and asking leave to correct any mistake. Thai the defendant so qualified and explained his decla- ration- and conduct at the time, as to greatly lessen the weight ■> tl ien( against him to be drawn there- from, i nnol justify him in giving in evidence a si quel laratioQ, adding force to the qualification or explanation already made, or relieving himself from the previous admission. The defendant obtained thead- vantin; ■ and full benefit ..t his explanation or qualifica- tion, ii ing or destroying the inflm . the m. Tie- fact that br ;i~ke 1 leave to anv 1/5 218 SUPREME COURT bee v. Mahone. .lid not entitle him to prove that he subsequently I differently. Every complainant in chancery tiles his hill, having a right to correct mistakes in the original bill by an amendment; yet it has been decided, that when an original bill is offered in evidence, in another suit, against the complainant, he cannot counteract the admis- sions of the original bill, by introducing the amendment. 1 * Pearsall v. McCartney, 28 Ala. 110. If a party makes an admission, with a request of permission to correct any mistake in the admission, the jury are to consider the ef- fect of his request of permission to correct mistakes in determining the weight of the admission, but he cannot be allowed to prove subsequent declarations or acts, for the purpose of relieving himself of the force of the ad- mission. [2.] The appellant, for the purpose of discrediting his adversary's witness, interrogated him as to declarations made by him (the witness) at a designated time and place, and to a given person. The witness asserted, that he could not answer the question, without giving the decla- rations of the defendant, who was present at the time when the declarations of the witness were made. The court said, that the declarations of the appellant could not be given in evidence; and to this denial by the court of the admissibility of the appellant's declarations there was an exception. It is clear, that the appellant's dec* i "lis were, prima facie, inadmissible as evidence for him. It therefore devolved upon him, as a preliminary to their admission, to show how they could be made com- petent evidence by other facts. — Shields & Walker v. Henry & Motf, 31 Ala. 53, The court had nothing be- fore it, tending to relieve those declarations of their in- admissible character, save the single fact, that the witness -aid he could not answer the question, requiring a state- ment of the declarations made by himself, unless he also gave the declarations made by the appellant on the same occasion. It might have been, that the appellant's dec- larations were so intermingled and connected with those 1 of the witness in the same conversation — for example, OF ALABAMA. 219 MXtehoev. Mahone. in the form of questions by one, and answers by the other — that it would be impossible to understand the declarations of the witness, except when viewed iu con- nection with those of the appellant. But that state of things is not satisfactorily shown, simply by the state- ment of the witness, that he could not give his own dec- larations without giving the defendant's. The court, which is the judge of the showing preliminary to the ad- mission of evidence prima facie illegal, could not safely or properly act upon such a statement of the witness. In doing so, it would have substituted the judgment of the witness for its own, upon the question, whether the declarations of the appellant and the witness were so connected that the latter would be unintelligible without the former. Besides, the statement of the witness, giv- ing no reason why he could not give his own declarations without those of the appellant, was of such ambiguous and doubtful character, that no inference of the requisite fact could be safely predicated upon it. — Scott v. Coxe, 20 Ala. 294; Humphreys v. Bradford, 32 Ala. 500. U there were facts, which would have shown the admissi- bility of the declarations iu question, they should have been brought to the notice of the court/* Upon the facts disclosed by the bill of exceptions, we cannot affirm that the court erred in deciding that the declarations were in- admissible. [3.] There was no error in the refusal to charge as requested by the appellant. If the plaintiff accompanied the delivery of the negroes with flic declaration, "that hi' gave or loaned them to the defendant's wife, hut. sub- ject to his call at any time," his right to terminate the bailment, and reclaim the negroes, would not necessarily lie restricted to the life-time of the bailee. Judgment affirmed. SUPREME COURT Williams v. ] vcy. WILLIAMS vs. IVEY. [ACTION For. ASSAULT AND liATl'KKV AND FALSE IMI'UISONM KNT.] 1. Distinction between counts in trespass and case. — The forms of com- plaint prescribed in the Code, (p. 554,) ''for assault and battery,"' and "for false imprisonment," are both in trespass-. 2. Aim i, ii in: .it qf c rniplaint after demurrer sustained. — Under the ( if plaintiff amend his complaint, after the court has sus- tained a demurrer to the original, and proceeds to trial on the amended complaint, he does not thereby waive his right to assign as error the .judgment on the demurrer, unless the record shows- that, in consequence of the amendment, he sustained no injury by that judgment. (Overruling Sheppardv. Shelton, 34 Ala. 652, and limiting Slallings v. .A- Ala. 300. to cases commenced be- fore the Code.) 2. Error without injury in admission and subsequent withdrawal of evi- rhe ejrroneoue admission of evidence, which is afterwards •withdrawn from the jury, and which they are expressly instructed the court nOl to regard fur any purpose, is, at most, error with- out injury. Ai'J'E\r, from. The Circuit Court of Lowndes. Tried before the Hon. Nat. Cook. This action was brought by Elijah Williams, against Samu-el Evey, to recover damages for an assault and bat" tery, and for false imprisonment. The original com- plaint contained two counts, which were identical with "I Reason Williams against Ivey, page tustained a demurrer to the com^ plaint, for a misjoinder of counts; holding, that the first count was in trespass, and the second in case. The plaintiff then amended his complaint, by striking out the first count; and a trial was had on issue joined on the plea of not guilty to the second'eount. During the trial, as the bill of exceptions shows, the defendant read in evidence the deposition of one Jordan. The plaintiff moved the court to suppress the answer of this witness ■ OF ALABAMA. 221 Williams v. Ivey. to the third direct interrogatory, on the ground that it was not responsive to the interrogatory, and reserved an excep- tion to the overruling of his objection. '• After the ar- gument to the jury was closed, and the court had charged the jury, the defendant asked leave of the court to with- draw from the jury the answer of the said Jordan to the third direct interrogatory, and the court allowed him to do so; and the court specially instructed the jury, that said answer was withdrawn from them, and was no evi- dence before them, and that, they must not look to answer as evidence for an} r purpose; to which action and ruling of the court the plaintiff also excepted." The sustaining of the demurrer to the complaint, the rulings of the court on the evidence, and the refusal of a charge requested by the plaintiff, are the matters now assigned .as error. J. KiviSTER, for the appellant. Baixi: & XeSmith, contra. * A. J. WALKER, C. J.— [April 12, 1861.]— Both counts of the complaint were in trespass, as was by this court in the kindred case of Reason Williams v. Ivey, at the present term. The court erred, therefore, in sustaining the demurrer for misjoinder of counts. [2.] This error was not waived, by the plaintiff's amending and proceeding to trial. Section 2255 of the Cod* \ the right of assigning the judgment on de- murrer for error in such a case, unless the plaintiff has lined no injury by the judgment in consequence of the amendment. The decision in Btallinga v. Newman, (26 Ala. m made in a suit commenced on the 8th we find by consulting the on . record; and it w. fore, not governed by the C Besides, in that case, the plaintiff probably sustained n i injury from the ruling oil the demurrer. II not say that the plaintiff has not been inj There are wrongs which might have been redress* I u -second count, and yet could not have been proved ui 222 SUPREME COURT Jack et ;il (slaves) v. Demur's Executors. first, The decision in Skeppard v. Shelton, 34 Ala. w .. - made upon the authority of Stallings v. New- man, our attention not having been called to the provis- ion of the Code above stated ; and we do not regard it as B correct statement of the law as it exists since the adop- tion of the Code. [•'>.] If there was any error in the admission oi the an-* r of the witness Jordan to the third direct interroga- tory, it was cured by the subsequent withdrawal of that evidence from the jury, and the explicit instruction of the court to the jury, that they must not regard it as evidence, and must not look to it as evidence for any purpose. — See the cases collected in Shepherd's Digest, 566, The question raised by the refusal of the charge asked, may not again arise, and we do not deem it necessary to pass upon it. Reversed and remanded. ' H JACK et al. (slavks) vs. DORAN'S EXECUTORS. [8TATUTOBY SOU K>H NtEXSOX.] • slave. — In this State, a direct l" v - qu< lona to slaves is void, unless their emancipation IB authori ed by some speoial legislative provision; and where the by • special statute, to emancipate his slaves at Ms discretion, but is required, as a condition precedent, pre- viously to convi y a certain quantity of land to the judge of the county court, in trust for their use, as a security that they shall not imo a public charge, a devise of the land to the slaves then> i 3, in a will -which is not sufficiently attested to pass real .'c, is- not 9 substantial compliance with the statute, and the be- quest and devise arc both void. Appeal from the Circuit Court of Jackson. OF ALABAMA. 223 Jack et al. (slaves) v. Doran's Kxeeutors. The record does not show the name of the presiding judge. This action was instituted by the appellants, who were the slaves of James Doran, deceased, in his life-time, and who sued by their next friend, against the executors and heirs-at-law of said Doran. The plaint ills claimed their freedom under two special acts of the legislature of Ala- bama, which were made exhibits to their petition, and under the will of said Doran, which was admitted to pro- bate, in November, 1840, as a will of personal property only, being attested by but two witnesses. The first act of the legislature, entitled "An act to au- thorize .lames Doran to emancipate certain slaves therein named," approved January 20, 1832, was in these words: "Be it enacted," &c, "that James Doran, of Jackson county, be, and he is hereby, authorized to (to take effect at his discretion) emancipate and set free slaves of the following names — viz., Sally, Annie, Jack, Catsy, Davy, Emeline, Eliza, Jane, Nancy, Amanda, Jerry, and Dolly; provided, he shall previously convey to the judge of the county court of said county, and his successors, six hun- dred and forty acres of land, on which he now resides, or lands equal in value thereto, in trust forever, lor tin; use of said slaves, as security that they shall not become chargeable on any city, county, or town in this State." The other act, which was approved January 5, 1833, and entitled "An act supplemental to" to the former, author- 1 Doran to emancipate two other slaves, .Jim and Esther by name, upon the condition mentioned in the previous act. Th< of said Doran's will, upon which the plain- 1 their claim to freedom, was as fallows; Ihe death of my wif.-, Linny Doran, 1 give and bequeath unto my negro slaves which I now have at home with me, ying by name all the slaves mentioned in tin- two acta of th< ire, and their children,) "and all future ii "f their families, their freedom; pro i my wife during the whole of SUPREME COURT v. 1 1 iran's Bxectil her natural life t time," &e. "And, as the law obliges the owners of slaves tpgive Beeurity before they can set them free, so that they may not become a public charge, I to them, for that purpose, the whole of my tract of land on which I now live, to be divided in the following manner." &c. The suit was instituted in September, 1858. The pe- tition alleged, that the widow of said Doran died in 1851; that the plaintiffs were afterwards carried into Tennessee, by some of the defendants, against whom the other de- fendants had there instituted legal proceedings for their recovery; and that the plaintiffs were still in Tennessee when their petition was filed. The circuit court sus- tained ;: demurrer to the petition, and its judgment is now tied as error. II. Cox, for appellant. P. Tukney, contra. R. W. WALKER, J.— [Jan. 10 186*1.]— James Doran, by his will, which was exi outed in this State, made a di- rect bequest of freedom to certain slaves. According to the repeated decisions of this court, it is clear that, un- there was some legislative provision authorizing the emancipation, the bequest was void. — Trotter v. Blocker, 6 I 'or. LV.'.i; Atwood v. lieck. k Jl Ala. 012; Alston v. in. n, 7 Ala. ?95; Robewon v. Roberson, 21 Ala. 273. not pretended that there was any legislative au- thority for the emancipation, except such as was fur- id by the special act* of 1882 and 1833, which are set out, in tlic record. These acts authorized Doran to emanci- pate these slav.-. the emancipation to take effect at his discretion; but they provided, as a condition precedent to the emancipation, that he should previously convey to the judge of the county court of Jackson county six hun- dred and forty acres of land, on which he then resided, or lands equal in value thereto, in trust forever, for the >f said slaves, as security that they should not be- come chargeable on any city, county, or towu in this OF ALABAMA. 225 "Wilkinson v. Hunter. State. No conveyance of any kind was ever made, or attempted to be made by Doran, to the judge of the county court, in trust for the use of the slaves. The at- tempt to devise the six hundred and forty acres c>f land referred to, directly to the slaves, was, perhaps, made with the view of complying with this requirement of the legis- lature. But that attempt was futile, if for no other j-eason, because the will, having been attested by only two witnesses, was not so executed as to pass real estate; and, consequently, was admitted to probate, only bo far as it related to personalty. This devise of the land to the slaves being void, there can be no pretense that Doran ever performed, either inform or in substance, the condition which the legislature preseribed as a pre-requi- site to the emancipation. The bequest of freedom must, therefore, be treated just as if these special nets of the legislature had never existed. Thus considered, it is, ac- cording to the well settled law of this State, clearly in- valid. Judgment affirmed. WILKINSON i*. HUNTER. [final settlement of aduikistkatob'i ACCOUNTS.] ttion of diligence or o< by whin: .ni >u an administrator's accounts, it being shown that a deci ndered by the probate court in his fa- administration to deliver up to him certain cho ing to th< is is on liiin to p -uch Hi » hether 1 .• ntly failed to j deliv< ry, or I ule i to collecl them alt<-r obtaining the ; • the amount w bi< li, by tho in ad- SUPREME COURT Wilkinson v. Hunter. minis trator is chargeable, on final settlement of his accounts, not with the nominal amount of certain choses in action belonging to the estate, which his predecessor in the administration was ordered to deliver up to him, but with the amount in money which, by the exercise of due diligence, he might have collected on them ; he cannot be charged with the amount of an account on a third per- son, one of such choses in action, merely on proof of the solvency of the debtor; nor with the amount of a decree rendered by the probate court in favor of his predecessor, against a preceding ad- ministrator, without proof of the solvency of the defendant in* said decree or his sureties ; nor with the amount of a judgment rendered in favor of his predecessor, on proof that one of the de- fendants therein was in possession of a tract of land, the value of which is not shown, and that the other defendant removed from this State before he became administrator, and afterwards returned and sold a tract of land. Appeal from the Probate Court of Chambers. In the matter of the estate of Bailey C. Newman, de- ceased, on final settlement of the accounts of Henry L. Wilkinson, administrator de bonis won, to which he was cited by William II. Hunter, his successor in the admin- istration. Wilkinson appeared, in answer to the citation, ajleged that no assets belonging to the estate had come to his hards, and moved to be discharged. Hunter con- tested this return, and moved the court to charge said Wilkinson with the following sums: " 1st, the amount of a decree rendered by said probate court of Chambers, on the 13th August, 1855, in favor of said Wilkinson, against Willian. Davis, former sheriff, and ex officio administrator de bonis non of said estate, forccrtain notes, accounts, and receipts, therein mentioned, and also certain moneys therein mentioned, which, by said decree, were required to be paid and turned over to said Wilkinson; 2d, with the balance due pn a judgment, rendered by the circuit court of said county, on the 24th March, 1854, in favor of said Davis, administrator, &c, against \V. W. Boazman, P; T. Boazman, and John L. Garrett, for $230, (credited with §73 on the 4th August, 1854, and with $20 on the 1st September, 1854,) which could have been collected by the use of proper diligence; and, 3d, with the amount OF ALABAMA. 227 Wilkinson v. Hunter. shown to bo in the hands of said Davis, former adminis- trator, &c. r as shown by the decree of final settlement, rendered by said probate court on the 13th August, 1855, with interest thereon, which could have been, collected by the use of proper diligence." "The proof was," so the bill of exceptions states, "that the plaintiff (Wilkinson) was appointed administra- tor of said estate on the 12th March, 1855; and that his term of office as sheriff had expired before his return in this case. The defendant (Hunter) offered in evidence the whole record of the administration of said William Davis, showing the return filed by him for final settle- ment, and the several orders and decrees of the court thereon, which are in the following words." (In his re- turn said Davis charged himself with the amount of a decree, rendered by said probate court, in his favor, on the 14th March, 1854, against Elizabeth Baker, as the ad- ministrator of her deceased husband, M. G. Baker, who was the predecessor of said Davis in the administration of said Newman's estate, for $98 29; also, with the sum of |98, collected on the judgment in his favor against W. W. Boazman, F. T. Boazman, and John L. Garrett, which is above described; also, with an account against Thomas Cobb, for §6 75, two accounts against William Leverett, together amounting to §14 50, and several other accounts, notes, and attorneys' receipts, which require no particu- lar notice. On final settlement of his accounts and vouchers, after due publication and notice, the court ren- dered a decree against said Davis, which, — after reciting that no objections have been made to his account; that the assets in his hands "are in notes, accounts, and re- ceipts, on various individuals, amounting in the aggregate to the sum of $610 00," and that he is entitled to retain |25, commissions and attorney's fee, — orders him t liver over to Wilkinson, his successor, "all said n d judgments due said esl -The plaintiff objected to each part of this evidence; the court overruled his objection, and admitted the evidence, and the plain tifl I." SUPREME COURT Wilkinson v. Hunter. "The defendant also read in evidence, against the plaintiff's objections, the record of the suit against W". W. Boazraan, P. T. Boazman, and John L. Garrett, and the note on which said suit was founded; " showing the renditioirof the judgment, and the partial payments un- der execution, as above stated; and the pi aintiff reserved exceptions to the admission of this evidence. "The proof was, that said W.W. Boazman was insolvent; that said F. T. Boalaman was in possession of a piece of land after plaintiff was appointed administrator of said estate; (but the witness did not know whether or not he owned said laud; nor was its value proved, nor the quantity of acres it contained;) that the said Boazman had removed to Russell county, and was keeping a family grocery near Opelika; that he was a man of family; that one witness sold him goods, and regarded him as honest, hut did not think that the whole of said judgment could have been collected out of him by legal process. It was proved, also, that John L. Garrett removed from this State, with his property, before the rendition of said judgment, and before, the plaintiff's appointment as administrator of saiil estate; that he resided in Louisiana, and was solvent, and good for this debt; that he returned to Chambers county, on a visit, in 1857-8, and, while there, sold a lot of land in said county for -fifty dollars. There was proof, also, of the solvency of Thomas Cobb and William Leve- rett ; and that a decree was rendered b} T said probate court, on the 13th March, 1854, in favor of said Davis, administrator, &c, against Elizabeth Baker, as adminis- tratrix of M. G. Baker, deceased, (who was the former administrator of said Bailey C. Newman,) on final settle- ment of said M. G. Baker's administration on said estate, in favor of said Davis, as administrator, &c., for the sum of §98 20, — for which sum, by said decree, execution wa3 ordered to issue. " "This being all the evidence in the case, the probate court thereupon rendered a decree against the plaintiff, in favor of the defendant, for the sum of $667 64;" to which the plaintiff' excepted, and which, with the several OF ALABAMA. ' 229 Wilkinson v. Hunter. rulings of the court on the evidence, he now assigns as error. •Brock & Barnes, for appellant. ElCIIARDS & FALKNER, COHtfa. A. J. WALKER, C. J.— [March 9, 1861.]— We Assume, that the failure of the appellant to obtain a different de- cree against Davis, more favorable to the estate which he represented, was not the result- of any fraud or negli- gence on his part, for the record does not authorize us to impute cither to him. When the decree was rendered in his favor, it was his duty to demand from hia predecessor the evidences of debt ordered to be delivered to him, and, upon a refusal of his demand, to proceed to obtain the enforcement of the decree. It being shown that the de- cree for the delivery of the choses in action was rendered in his favor, the onus was upon him to prove that he had used due diligence to obtain their delivery; and as he failed to prove, in the court below, that he had made 'an effort to procure such delivery, or that he con Id not have procured -'■' , delivery byvthe use of diligence, it was proper for the court below to hold him guilty of negli- gence, in failing to obtain possession of the choses in ac- tion. But whether he wasguilty of negligence, in failing to obtain delivery of the choses in actio!), or obtained on of them, and then failed to collect them, he would only be responsible for money to the amount which, in the exercise of due diligence, he could have collected Upon them. The court should have inquired, therefore, to what amount the choses in action could have been col- d by him, it he had exercised proper diligence in an effort to make such collection. As to that inquiry, the Mus of proof was on the appellee; for the law could not | :111c, that choses in action, not resulting from of property made by the appellant, but coming to him Irom the hands of hii p capable ol lection. The correctnw fore, of the decree ren- dered against the appellant, depend- opou the question, I _ SUPREME COURT Wilkinson v. Hunter. whether the evidence justified the conclusion, that, by the exercise of proper diligence, he could have realized from the choscs iu action, which his predecessor was or- dered to deliver to hira, the amount' with which he was charged. Among the choses in action directed to be delivered to the appellant, there were three accounts — one on Thomas Cobb, and two on William Levcrett — as to which there was no proof, except that Cobb and Leverett were solvent. This evidence was not sufficient, of itself, to authorize the charging of the appellant with the amount of those accounts. The accounts were not pvima-facie evidence of indebtedness; and the administrator could not he charge- able with the amount of them, in the absence of evidence that they were debts susceptible of enforcement in courts of justice. There were several other accounts, and re- ceipts for accounts, as to which there was no proof what- ever; and with these, upon the evidence before the court, the appellant was not chargeable. The proof did not justify the charging of the appellant with the amount of the decree against Elizabeth Baker, because there was nothing which authorized the infer- ence, that the defendant in that decree, or the sureties liable therefor, were solvent after the appellant became administrator., The proof before the probate court did not authorize that court to charge the appellant with the amount of the judgment against \V. YV. Boazman, F. T. Boazman, and John L. Garrett. Conceding that F. T. Boazman's pos- ion nf a tract of land raised the presumption that the land belonged to him; yet the value of the land was not shown; and it could not he inferred, therefore, that either the entire judgment, or any specified part of it, could have been collected out of the land. Whether, in the attitude of the ease made by the proof, the onus as to the exemption of the laud from execution was upon the one party or the other, we do not decide. If, upon a future trial, it should appear that Boazman really owned a tract of land, the parties can easily settle the question, whether OF ALABAMA. 231 Wright v. Falkner. the land was exempt from execution, by introduciirg tes- timony on the point. The mere fact that Garrett, one of the defendants in the judgment, returned from Louisiana, and sold a lot of land for fifty dollars, did not show that the appellant could, by the use of proper diligence, have subjected the land to the payment of the judgment. Garrett was not in the possession of the land, so as to afford notice of his proprietorship; and it cannot be presumed that the appellant was guilty of negligence, in failing to discover the ownership of the land, wheu there was no visible indication of the fact. We mention, without comment, the fact that the proof leaves to con- jecture the important question, whether Garrett had such a title to the land as was subject to sale under execution ; and that it also leaves room for speculation, as to whether he sold the land for himself, or for another. The principles above laid down, as to the claims which have been specially considered, will be sufficient to gov- ern the probate court in passing upon the other items. The judgment is reversed, and the cause remanded. .WRIGHT vs. FALKNER. HOW FOR BREACH OF SPECIAL CONTRACT.] mtract. — Tn ;in action for a breach of con- .-• -l.y which plaintiff agreed to serve defendant, in the capa- city • . for the term of on-' year, but was dh without fault on hi spiratiojn of the year, — if the suit is coi I before the expiration of the year, the plaintiff er unliquidated damages for the breach of cont and .. that the stipul i I be ih' of damag kal from the Circuit Court of Butler. Tried before the lion. Kobkrt J i SUPREME COURT Wright v. Falkner. Tin- action was brought by Richard Falkner, againal William Wright, and was commenced on the 12th August, The complaint contained .the common count for work and labor, and a special count in the following words: "Plaintiff claims of defendant the sum of $150 damages, for the breach of an agreement entered into between them on the 24th January, 1859, by which de- fendant promised, if plaintiff would overseer for him, on his farm in Butler county, from that time until christmas, 1859, that he would have plaintiff's washing done, and would give plaintiff one bjindred and fifty dollars for his services; and plaintiff avers,' that he commenced work for defendant, as his overseer, under said' contract, on the 31st .January, 1859, with the full knowledge and consent of said defendant, and fully and faithfully performed his duties as such overseer, under and according to said con- tract, and continued to perform them so long as said de- fendant permitted him to do so; but he avers, that said defendant, on the 4th August, 1859, without any just cause, turned him off from bis employ, and refused to allow him to perform his part of said contract; and that said defendant then *b thereto requested, and does still refuse, to pay him the 3150 so promised to him, or to make any just compensation for said breach of said contract." ■ "On the trial," as the bill of exceptions states, "the proof showed, that the plaintiff and defendant entered into a contract, about the 24th .January, 1859, by which plaintiff agreed to serve defendant as an overseer for the balance of that year, for the sum of $150; that the plain- tiff entered upon the performance of said contract, and continued with the defendant until about the 1st August, 1859, when the defendant turned him off; but the proof was conflicting, as to whether or not the defendant was justified in so turning him off. The court charged the jury, that if they believed, from the evidence, that, the plaint iif and defendant entered into a contract at the time allege;] in the complaint, by which the plaintiff agreed to serve the defendant as an overseer for the balance of that OF ALABAMA. Wright v. Falkner, year, for the price of $150, which the defendant agreed to give; and that the plaintiff entered upon the discharge of his duties under said contract, and continued to dis- charge his duty properly until August, 1860, when he was discharged by the defendant, without sufficient cause, then the plaintiff was entitled to recover the whole amount which the defendant had agreed to give him for his year's wages, with interest thereon, from the time he was discharged by the defendant, up to the time of the trial." The defendant excepted to this charge, and he now assigns it as error. Baine & NbSmith, for appellant. Adams & Herbert, contra. STONE, J.— [Feb. 14, 1861.]— The present suit was instituted before the expiration of the term during which Mr. Falkner had agreed to serve Mr. Wright in the capa- city o{ overseer. Hence, under the' authorities, we must hold, that Mr. Falkner did not elect to regard the contract as continuing, but as ended by the act of the opposite party — Mr. Wright. — Ramey v. Ilolcombe, 21 Ala. 567, and authorities cited. His suit, then, was for unliquidated damages, and not for wages due for the whole year, under the terms of his contract. — Fowler v. Armour, 24 Ala. 194. "In Buch case, the amount of wages for which he had stipulated would not be the measure of damages. His actual damage, all the circumstances considered, whether more or less than that, would be the true measure of the amount which he would be entitled to recover." — Fowler v. Armour, supra. In this action, brought at the time it was, it cannot be affirmed, as matter of law, that the plaintiff is entitled to recover the entire wages agreed on. Reversed and remanded. 16 234 SUPREME COURT Ronoy's Adm'r v. Winter. RONEY'S ADM'R vs. WINTER. [action on promissory note, bt payee against MAKER. J ] . Note signed ly agent, for principal, held prima facie contract of prill' cipal. — A promissory note, beginning thus, " Twelve months after date, we promise to pay," &c. ; and signed thus, " For the Mont- gomery Iron Works, J. S. W., president, S. J., secretary,'' — is, prima facie, the contract of the principal, and not binding on J. S. W. personally. Appeal from the Circuit Court of Montgomery. Tried before the Hon. S. D. Hale. This action was brought by William C. Ronej-, (and was revived in the name of his administrator,) against Joseph S. Winter; and was founded on a promissory note, of which the following is a copy : $300. "Montgomery. Ala., Jan. 1, 1855. Twelve manths after date, we promise to pay Win. C. Roney, or bearer, three hundred and ninety dollars, for the hire of Jim and Jerry for the present year. We are to feed the said negroes, and furnish them with the usual clothing; usual terms of hiring governing. "For the Montgomery Iron Works, "J, S. Winter, President, "Sanders Irving, Secretary." The record docs not show what pleas were filed. On the trial, as appears from the bill of exceptions, the plaintiff proved the defendant's signature to this note, and then oflored to read it to the jury; but, on the defendant's motion, the court excluded it. The plaintiff excepted to this ruling of the court, and was thereby compelled to take a nonsuit ; and he now assigns the ruling of the court as error, and moves to set aside the nonsuit. OF ALABAMA. 235 Ronev's Adm'r v. Winter. Watts, Judge & Jackson, for the appellant, cited Story on Agency, §§ 147, 154-57, 269, 270; Dawson v. Cotton, 26 Ala. 591 ; 13radlee v. Boston Glass Co., 16 Pick. 350 ; Harwood v. Humes, 9 Ala. 659 ; Lazarus v. Shearer, 2 Ala. 718; Gillespie v. Wesson, 7 Porter, 454. Jno. A. ElmorB, contra. li. W. WALKER, J.— [March 9, 1861.]— The rigid rale of the common law, which requires that a deed, exe- cuted by an attorney, for a principal, must be made and executed in the name of the principal, in order to operate as his deed, does not apply to instruments not under seal. Carter v. Doe d. Chaudron, 21 Ala. 72, 88-7; A'ew Eng- land Marine Ins. Co. v. Dewolf, 8 Tick. 56; Andrews v, Estes, 2 Fairfield, 267; Robertson v. Pope, 1 Rich. L. 501 • Story Ag. § 148; 1 Am. Lead. Cas. (2d ed.) 609. In reference to this latter class of instruments, the rule is, that if the name of the principal appear in the instru- ment, and it is evident from the writing, as a whole, that the intention was that the principal, and not the agent, was the person to be bound, the principal alone will be bound, if the agent had authority to make the agreement, although the instrument be signed in the agent's name only.— Townsend v. Hubbard, 4 Hill, 351, 357; liathbon v. Budlong, 15 Johns. 1; Penty v. Stanton, 10 Wend. 271; I what witness may testify. — A witness may testify that a slave looked Kiel; although he is neither a physician, nor an expert. 9. Declarations of sick slave. — The declarations of a slave while sick, as to the nature and symptoms of his disease, are competent evi- dence en the principle of res gestae, as well as from the necessity of the ease, although made to a person who is not a physician. 10. Rett oancy of evidence on ancation of care or negligence. — One of the questions in the. case being, whether the purchaser was guilty of negligence in his treatment of a female slave, during tho time she remained in his possession, before he tendered her back t<> the vendor ; and it having been proved that the slave was badly burned, while in his possession, by the accidental explosion of a fluid lamp, whereby her value was greatly impaired, and was after- wards -'lit by him, by the public stage, to the plaeeof the vendor's lence, it - permissible for him to prove that the slave \ ted his orders in u>ing the lamp, and that he was advised by a, physician, whom he consulted, that he. might send her by the stage, with safety. 238 SUPREME COURT Stone & Best v. W:itson. Appeal from the Circuit Court of Talladega. Tried before Hon. Robert Dougherty. This acHon was brought by S. D. Watson, against the appellants, as partners. The original complaint con- tained a single count, claiming $3100 damages for a breach of a warranty of soundness of three slaves — Sarah Ann, Elizabeth, and Caroline, by name — sold by defendants to plaintifl on the 6th March, 1857; and an amended complaint was afterwards filed, in the following words : "The plaintiff, by leave of the court first had and ob- tained, claims of the defendants $2000 damages for a breach of warranty in the sale of certain slaves, to-wit, Sarah Ann, a seamstress woman, about twenty years old, Elizabeth, and Caroline, by the defendants to the plaintiff, on the 6th March, 1857; which slaves the defendants warranted to be sowid and healthy, when in fact, at the time of said sale and warranty, said slaves were unsound and unhealthy. ™ "The plaintiff claims of the defendants the further sum of $1300, due by contract made by them on the 1st -July, 1857, substantially as follows: The plaintiff, on the 6th March, 1857, purchased from the defendants the ne- groes above mentioned, for the sum of $3150, (all of which was paid at that time,) and the said defendants then and there executed and delivered to plaintiff their bill of sale for said slaves, warranting them to be sound and healthy; but plaintifl avers, that said girl Sarah Ann was not sound and healthy at the time of said sale, but, on the contrary, was unsound and unhealthy; in conse- quence of which, plaintiff was greatly injured, to-wit, in the sum of $1500, for which the defendants thereby became liable to him in an action at law; and the de- fendants, in consideration thereof, on the 1st July, 1857, agreed with plaintiff to take back said Sarah Ann,*and to pay plaintiff the sum of $1300; and plaintiff agreed, on his part, to return said slave; and in pursuance there- of, he did, on the 8th July, 1857, return her to the de- OF ALABAMA. 239 Stone & Best v. Watson. fendants; yet they have failed and refused to pay said 8 urn of money, or any part thereof. "The plaintiif claims of the defendants, also, the further sum of $1300, for that the plaintiff, on the 6th IJarch, 1857, purchased of the defendants the slaves above named, tor the sum of $3150, (all of which was paid on said day,) and the defendants then and there executed and delivered to plaintiff their bill of sale for said slaves, warranting them to be sound and healthy; but plaintiff avers, that said slave Sarah Ann, at the time of said sale and warranty, was not sdund or healthy, but, on the con- trary, was much diseased; in consequence whereof, the defendants became liable to an action at law by the plaintiff; in consideration whereof, the defendants agreed with the plaintiff to pay him the sum of $1300, and to take back said slave Sarah Ann; and the plaintiff, in pursu- ance of said contract, on the 8Ua July, 1857, tendered and offered .to deliver said slave to defendants, but the defend- ants refused to receive said slave, and also failed and re- fused to pay said sum of money, or any part thereof, to the said plaintiff. "The plaintiff claims of the defendants the further sum of §1300, for that the plaintiff, on the 6th March, 1857, purchased of the defendants the negroes above named, for the sum of $3150, (which was all paid at that- time,) aud the defendants then and there executed and delivered to plaintiif their bill of sale for said slaves, warranting them to be sound and healthy; but plaintiif says, that said Sarah Ann, at the time of said sale and warranty, was not sound or healthy, but was diseased, unhealthy, and worthless; whereby defendants beeame liable to plaintiff in an action at law; in consequence whereof, defendants agreed, on the 7th July, 1857, to pay plain tifi 81300, and to take said slave back, and to go OT send |t«»J plaintiff for her, and plaintiif agreed, on hie part, to deliver her up to defendants when desired; but plaintiff' says, that defendants utterly failed and ref > or -end for laid slave, or to pay plaintiff said .-inn oi money; whereupon, plaintiff tendered aaid slave to 240 SUPREME COURT . Watson. ndants, but they failed and refused to receive her, or t<. pay said Bum of money, or any part thereof. "The plaintiff claims of the defendants the further sum of 81^00, for that the plaintiff, on the Gth March, 1857, purchased of the defendants the negroes above named, for the sum of $3150, (all of which was paid at the time,) and the defendants then and there executed and delivered to plaintiff their bill of sale for said slaves, warranting them to be sound and healthy; but plaintiff' avers, t,hat said slave Sarah Ann,, at the time of said sale and delivery, was diseased, unsound, and worthless ; iu consequence whereof, plaintiff, on the 1st June, 1857, returned her to defendants, and rescinded said sale as to said slave; by means whereof, defendants became liable to an action at law, in favor of the plaintiff; in consider- ation whereof, defendants agreed to pay plaintiff the sum. of 31300, but they have failed and refused so to do." (The three remaining counts of the amended complaint are the common counts for money had and received, money paid, laid out and expended, and work and labor done.) The judgment-entry recites, that the defendants de- murred, in short by consent, to the entire complaint, and to each count thereof; that the assignment of special ^rounds of demurrer was waived: that the court sus- tallied the demurrer "as to the first two counts in the complaint," and overruled it as to the remaining count* and the whole complaint; and that the defendants then pleaded the general issue, "with leave to give any speeial matter in evidence, and with like leave to the plaintiff in reply." # On the trial, as appears from the bill of exceptions, the plaintiff read in evidence to the jury, after proving its execution, the defendants' bill of sale for the slaves, which was dated the 6th March, 1857, contained a war- ranty that the slaves were sound and healthy, and de- scribed the girl Sarah Ann as "a seamstress woman, about twenty-four years old;" and thou offered in. evi- OF ALABAMA. 241 Stone & Best v. Watson. deuce the deposition of Dr. B. C. Jones, which was taken on interrogatories and cross-interrogatories. The third direct interrogatory tp this witness was in these words: ?*Int. 3. What would said girl have been worth, when you, first visited her, if she had been sound, taking into consider^ Hon I In fact that she was a No. 1 seamstress .' what was she worth, at that time, in the condition in which she realty was ? what would she have been worth, on the 6M March, 1857, if she had been sound, and a r/ood, No. 1 seamstress ? what was she worth, at that time, in her then condition as to health?" The defendants objected, at the time of tiling cross-interrogatories, to each of the italicized portions of this interrogatory, and renewed their objections at the trial; but the court overruled each of the objections, and 'hey excepted. Another interrogatory to this witness ailed on him to state "by whom, at whose request, and s whose property, he was called iu to attend the girl' arah Ann;" and exceptions were reserved by the defend- lts to the overruling of their objections to this inter- gafbry. The witness testified, in substance, that he- m called in by plaintiff, in May or June, 1857, to pre- ;ibe for the girl Sarah Ann ; that he then found she had slight disease of one of her lungs,"" which, he thought, ist have existed on the 6th March, 1857; and that he s afterwards called in to prescribe for her on account a barn on her left arm. The bill of exceptions states, vt "there was no proof as to the qualities or aeqaire- ■nts of said negro, other than the statement in the bill sale that she was a seamstress." "The plaintiff introduced evidence, also, tending to ow an agreement between him and the defendants, in Talladega, where the defendants lived, some after the sale, (the negro being then in the plaintiff's >n, in the city of Montgomery,) by which it was od that, if said negro was aosouud at the time of the to plaintiff, defendants would take her back, aud mild pay plaintiff J 1250, by way of expenses, and her Wwc from Montgomery to Talladega: bat, as to hut this contract was, there was a conflict in the proof, — 242 SUPREME CO URT Stone & Best v. Watson. BOme of the evidence tending to show, that the defend- ants agreed to take her back, and to pay as above stated, if she was unsound at the time of the sale, and was de- livered to them, in Talladega, in the condition she was at the time of the sale. At the time this agreement was made, (whatever it was,) the negro had not been burned; but afterwards, while she was in the plaintiffs negro- house in Montgomery, and under the charge of one Ball, plaintiff's agent, she received a burn upon her left arm, by the explosion of a fluid lamp, which was kept in said negro-house by said Ball, and which she was at the time attempting to use; and all the evidence tended to show, that her permanent value was thereby decreased one half, or more. Some days after she was thus burned, said negro was sent, by plaintiff's agent, or by his direc- tions, on the stage, to Talladega, where she was tendered to the defendants, who refused to receive her, or to pay the $1250. Said Ball testified, in behalf of the plaintiff, that he was in plaintiff's negro-house, acting as his agent, when said negro was purchased by plaintiff, and came to said house; and that said negro, when she came to said house, coughed, looked sick, and complai»ed to ivilness of a pain iii her breast,. It being admitted that this witness was not a physician, the defendants objected to" the italicized portions of his evidence, as being illegal and irrelevant, and reserved exceptions to the overruling of their objections. "This witness further testified, that the v.egro was not allowed, by a rule of the house, to use saidiamp, in using which she was burned; that Dr. B. 0. Jones was called in to attend her^ and treated the burn several days; that when he was about to send the negro to Talladega, he consulted J)r. Jones as to whether it would be safe te send her by lid' stage; and thai Dr. Jones -tola him, in his opinion it would be safe to send her to Talladega on the stage." The defendants objected to each of the italicized parts of this evidence, on the ground ot illegality and irrelevancy, and reserved exceptions to the overruling of their objections. On cross-examination of one Thomason, one of defend- ants' witnesses, who had stated that he knew the negro OF ALABAMA. 243 Stone k Best v. Watson. in controversy, the court permitted the plaintiff' to ask him, against the defendants' objection, what was the value of the negro at the time of the trial, which was in May, 1859 ; and the witness having answered, "that he did not know the qualities of the girl of his own know- ledge, but knew them from reputation;" the court per- mitted the plaintiff to ask him, against the defendants' objection, "what would be her value, if sound, if she pos- sessed those qualities which she was reputed to possess;" and the defendants reserved exceptions to each of these rulings of the court. The court also permitted the plaintiff to read in evi- dence to the jury Dr. Jones' account for medical services rendered to the slave, on proof of the doctor's signature to the receipt acknowledging payment by the plaintiff. The defendants objected to the admission of this evi- dence, "on the grounds that it was illegal, irrelevant, calculated to mislead the jury, and because there was no proof .that the amounts charged were reasonable and proper, and because there was not sufficient proof that the plaintift" had paid said accounts;" and reserved ex- ceptions to the overruling of these several objections. The several rulings of the court on the pleadings aud evidence, as above stated, are now assigned as error. IIeflin, Martin & Forney, for appellants. L. E. Parsons, and Jno. White, contra. A. .). WALKER, C. J.— [March 7, 1861.]— In the original pnd amended complaint, addingadditional counts, there were nine counts. The record informs us, that the defendants' demurrer to the first two counts was sustained, and that it was overruled aa to the remaining counts. From this we understand, that the demurrer was sus- tained as to the single count in the original complaint, and as t<* tin; first COUQt in the amended complaint, and that it waa overruled as to the last seven counts in the amended complaint. [2.] Two reasons are urged, why the court below : SUPREME COURT Stone ft Best v. Watson. erred in so overruling the 'demurrer to the seven counts. The first reason is. that the averment of tlic nnsouud pf the slave is the statement of a conclusion, and that therefore it was necessary for the pleader to have all in what the unsoundness consisted. From this argument we must dissent; for we regard unsoundness as a fact, which may appropriately be averred in pleading. [o.] The second reason urged in support of the demur- rer, is, that the counts are misjoined, becauSe some of them require a special breach, while others do not. — Code, § 2235. This argument, we think, is also unsound, for we do not regard either of the counts as requiring a special breach, in the sense in which that phrase is used in the above cited section of the Code. * [4.] In ascertaining the damages resulting from the breach of warranty of soundness, the proper inquiry, of course, was as to the value of the slave at the time of the sale. But it was permissible to prove what her value was a few months afterwards, as reflecting light upon the ques- tion of her value at the time of the sale. — Ward v. Rey- nolds, 32 Ala. 384. There was, ibeieiore, no error in overruling the first three objections to the interrogatories propounded by the plaintiff to Dr. B. C. Jones. [5.] The defendants objected to an interrogatory to the witness Jones, inquiring what would have beeu the value of the slave, if she had been sound and "« good, No. 1 seamstress.'" It was certainly proper to prove the value of the slav« with her qualities upon the hypothesis of her soundness. The bill of sale made by the defendants to the plaintiff represented the slave to be a seamstress, but did not specify that she was a seam- Btreas of quality Jfxiown as No. 1. We think it probable, that the fact that the negro's quality as a seamstress was made the subject of a special and formal description in the bill of sale, authorized an argument to the jury that she possessed some eminence of skill as a seamstress, and might be classed as No. 1. If there was any ten- dency of proof to show that she was a '"No. 1 seamstress," it was permissible to inquire as to her valine upon that OP ALABAMA. 245 Stone & Best v. Watson, supposition. We decide, though with some doubt, that there was in the statement of the bill ipf sale such ten- dency of proof, and that therefore there was no error in overruling the fourth objection to the plaintiff's inter- rogatories to Jones. ♦ [6.] The evidence of Thorn ason, as to the value of the slave according to the qualities which she was reputed to possess, was manifestly inadmissible. The legitimate inquiry was, her value upon the supposition of the quali- ties which she did possess, and not of those she was re- puted to possi [7.] The inquiries of the witness Jones, as to the per- son by whom, and at whose request, he was called to visit the slave in her illness, and as whose property he visited her, were calculated to elicit information of the facts necessary to sustain the plaintiff's claim for dama- ges on account of a medical bill contracted in treating her disease. The objection to that inquiry was, there- fore, properly overruled. The court erred, however, in admitting in evidence the BCCouut of Dr. B. C. Jones, there being no evideuce of its correctness* The account could, noon no principle of law, be admissible, until it was proved that the services rendered as charged, and that the charges were cor- rect. Besides, the account could not be evidence, unless it was contracted for the treatment of a disease which the slave had at the time of the sale. [s.] Evidence that the slave looked sick, conduced to blish a fact, which was one of the material matters in The appearan f a slave is certainly a fact, and i conclusion, and is susceptible of proof by one not an expert, who has seen the slave. [!».] The declaration of the slave, as to the present cx- • f a pain in her breast, was clearly admissible; and the point has boen repeatedly so adjudged by this court— Wilkinson v. Moseley, 80 Ala. 5(32; Barker v. Coleman, 35 Ala. 221. [10.] At least under some of the counts in the com- plaint, evideuce as to whether the burning of the slave 246 SUPREME COURT Polly v. McCall. caused by the plaintiff's negligence, was admissible. 1 Parsons on Con. 445. To this question, the fact that the slave was, by a rule of the house in which she was kept by plaintiff, not allowed to use the lamp, in using which she was burnt, was clearly pertinent, and there was no error in admitting that fact in evidence. And so, also, in the same point of view, the fact that the plaintiff consulted a physician, as to the prudence and safety of sending the slave to Talladega; and that Dr. Jones, being a physician who had treated her ease, advised him that she might be safely sent, would be competent evidence upon the question, whether the defendant was guilty of any negligence i ti sending the slave to Talladega. The unsworn opinion given by Dr. Jones weuld not be evi- dence that it was safe to so send the slave; but the fact that he was consulted, and so advised, has a direct bear- ing upon the question, whether the plaintiff acted care- lessly and incautiously. We deem it proper to observe, in reference to the Gth count, which avers a delivery of the^tave to the defend- ants, and an agreement on their part to pay, in consider- ation thereof, the sum of thirteen hundred dollars, that » wo regard it as showing a rescission by consent of both parties, and that we must not he understood as affirming that it is good as a count for a rescission against the wishes, ami without the consent of the defendants. Reversed and remanded. Stone, J., not sitting. POLLY vs. McCALL. [ACTIOS TO RECOVER DAMAGES FOB OVEBFI.OW OF LAND.] 1. Admission of our. defendant, in action agninst t" :,) - — in a n action (0 against two defendants, the admissions of one, being competent OF ALABAMA. 247 Polly v. A'lcCall. evidence against the maker, cannot be excluded from the jury on motion: his co-defendant must limit their operation by a request for proper instructions to the jury. 2. Proof of written notice. — In an action to recover damages for overflowing land, proof of a written notice hy plain tiff to defendant requiring an abatement of the ditch and levee by which the over- flow was caused, being collateral to the issue, is within the excep- tion to the general rule in regard to the proof of writings ; am! the contents of such notice may be proved by oral testimony, without producing the writing, or accounting for its non-production. 3. Pi atcriptive easement, — A tolerated or permissive user of an ease- ment csti never ripen into a title by prescription, while a user which is adverse, independent, or as of right, if continued for a period corresponding with the statutory bar to a right of entry upon land, will confer an absolute right; but the use of a ditch and levee, on a party's own land, which is in itself rightful, cannot confer a prescriptive right to injuriously overflow the lands of an adjacent proprietor many years afterwards, when the ditch has be- come gradually filled up with the sand and dirt accumulated and deposited therein by the continued flow of water. 4. Limitation of action. — Under the provisions of the Code, (\ 2481, subd. G.) one vear is the bar to an action to recover damages for overflowing lands. ^, ft. Damages, and evidence. — In an action to recover damages For over- flowing lands, a recovery cannot be had for injuries accruing after the commencement of the suit; but evidence of such injuries is admissible, with a view of affording information to the jury of the consequences of the diversion under similar circumstances before suit brought. of proof. — If a person diverts water from its natural chan- .nel, by means of a ditch ami levee on his own lands, and thereby injuriously overflows the lands of an adjacent proprietor; and this injury continue*, without increase, for ten years, — the jury may infer from these facts, in the absence of all other evidence, that the use wan adverse, and of right. nrge to ./">//, if correct, mutt be given as ashed, — Since the statute imperatively requires, that a charge to the jury, if correct and not abstract, m n in the language in which it is asked, the doctrine of error withoul injury cannot be applied to Mich charge, although the legal proposition embi in it tanlially enunciated id another charge giv< n by the irt. Appeal from the Circa it Court of Lowi Tried before the Hon. Kobbrt Dougherty. 24* SUPREME COURT Polly v. BfcCalL tion was brought by Mrs. Mary McCall, against Thomas Polly and James K. Whitman, to recover dama- >verflowing of plaintiff's lands by the defend- ants' diversion <>t water from its natural channel. The defendants pleaded ''the general issue, and the statute of limitations," in short by consent ; and the cause was tried on issue joined op these pleas. The f-ie 4 "^ of the stated in the bill of exceptions, are these: "The plaintiff proved her possession and ownersnip the lands described in the complaint, and then offered evidence showing thai one Abercrombic owned land- ad- joining hers on the west and north; that the defendants' lands, which cornered hers on the north-west, were once owned by one Bethea; that a spring branch, which ai on :i different part of plaintiff's plantation, flowed north- ward through Abercrombie'e lands on the west, and then through Bethea's said lands, and, in its natural flow and condition, did not, nor did any of the waters from the same, ■ ver run upon or through any part of the land- of plaintiff described in the complaint; that said Bethea, in 1841 oi 1842, eut a ditch, and threw u,> a levee on the north Bide thereof, al"ong the south line of his said land; that aid ditch and levee ran east and west, and termina- ted near the mnth weal comer of plaintiff's said lands, commencing at n point west of said branch, and crossing the -aine nearly at right angles: that there was a break, or channel, leaving said branch about eighty yards above Baid ditch, running in a north-eastern direction, and in- pting Bethea's line; but the evidence was conflicting, as to whether this break was a natural channel, existing »re said ditch was made, or whether it commenced af- inl ditch was made, and w.is caused hy the damming up of the water- of the branch by the ditch and levee. The evidence wae also conflicting, as to whether <>r not Bethea, when he built the ditch and levee, left an open- ing al the original channel for the water to pass through; but the evidence showed that he left no such opening for the water passing through the break, and that none of the waters of said branch in their natural flow, either OF ALABAMA. 249 Polly v. McCall. through the break or through the original channel, ever ran upon the plaintiff's said lauds; and that the water which naturally ran upon Bethea's said lands, or at least a large portion of the same, was diverted from .his lands by sai^ ditch and levee, and thrown at the corner of plaintiff's lands above mentioned. The following dia- gram shows the relative positions of said lauds, branch, ditch, break, &c. : N. Bethea's Land w- -' Pitch and Levee. V'"" ... ..-...■. Abercrombie's Land. A. Abercrombie's Land. E, McCall's Land. S. "The evidence further tended to show, that when said ditch and levee were originally constructed, the water thereby diverted from Bethea's land was nearly all thrown upmi the lands of Abercrombie, at the point marked .1, which was lower than plaintiff's adjoining lands; hut thai a little water would run npon the corner of plaintiff's land-, near said point, in time of floods, although no per- ceptible damage was thereby done to plaintiff's said lands until the year l v ">7; and that the low place at said point on Abercrombie's land had become filled op, about the beginning of the year 1857, by the sand and gravel which had been thrown upon it by said w;it"i\ until it became higher than plaintiff's adjoining land, and the water then n to flow in large quantities upon plaintiff's land, bringing with it large quantities of sand, which wa posited upon plaintiff's land; and thai said land, which wa- in cultivation VI 1 ditch was dug, and I that continuously up to the beginning of this suit, was thereby damaged and injured. The evidence farther that in 1842, and tor more than ten 17 250 SUPREME COURT • Polly v. McCall. wards, tlie defendant Polly acted as Abercro mine's agent as to his lands at the point in controversy: and the plain- tiff proved an admission by said Polly, made in 18-44 or 1845, that Bethea's diversion of water by said ditch and levee greatly injured both plaintiff and said Abercr^rnbie, and waa a great outrage; that Abercrombie, in 1843, had sued Bethea for the damage done to his land by said ditch and levee, and had recovered $50 damages ; that Bethea then promised to abate the ditch and levee, and to. allow the water to flow in its natural channel; and that he did some work for that purpose in 1845-46, which was inef- fectual. The defendants objected to the admission as evidence of Polly's said admissions; the court overruled the objection, and admitted the evidence; and the de- fendants excepted. The plaintiff also proved, by the admissions of said Polly in 1849, that Bethea was then promising to abate said ditch and levee,, and thereby to prevent the diversion of said water as aforesaid. "The evidence further showed, that said Bethea died in 1851; that" in January, 1857, the devisee under his will sold said lands to the defendants, who immediately went into the possession thereof, and owned and held them ever since. The evidence also tended to show, that, although said Bethea made some ineffectual attempts to turn the water from plaintiff's land, he never did so; that, although the ditch dug by him nearly tilled up by the lapse of time, yet he suffered and permitted said levee to remain ; that the obstruction thereby caused to said waters continued to divert them at the point above mentioned, and the same was suffered and permitted to continue until the defendants became the owners of said lands; and that they suffered and permitted the same to continue up to this time, although they could have prevented said water from upon plaintiff's said land, by removing the obstructions aforesaid, and permitting the water to flow in its natural channel upon their own land. The plaintiff' offered a witness who tcstiiied, that in March, 1S57, as the agent of the plaintiff, he handed the defendants a written notice from the plaintiff, notifying them that OF ALABAMA. 251 Pollv v. McCaJl. their continuance of the obstruction of the natural llow of said water was injuring her land's, and requiring them to remove or abate the same. The defendants thereupon J ■objected to the witness testifying in relation to said no- tice, unless the writing was produced, or its absence ac- counted for. The defendants had uot been previously notified or 'requested to produce the writiug; but they Were in court when the objection »was made, and the plaintiff's counsel then stated, that he wished them to produce it, if they had it. The court overruled the ob- jection, and the defendants excepted. The witness further testified, that about the same time, as the plaintiff's agent, he had given the defendants a verbal notice to the same effect. "The plaiutiff proved, separately, the damage sustained by her in the use of said land overflowed by said water, and in the injury to her crop growing thereon, during the period of one year before the commencement of the suit, and also the damage done to the land during the same period; and then offered to prove the injury to the land by the overflowing thereof since the commencement of the suit. The defendants objecting to the allowance of this proof, the court thereupon decided, that the plaintiff •could not recover for any injury or damage since the commencement of the suit, but that the evidence might Quitted with the view of throwing light upon the question as to the injury or damage within one year be- fore the suit was brought, and for thi e alone; and then overruled the defendants' objection, and admit- ted the evidence for this purpose; to which tlu ants excepted. The court also Btated, at the time of ad- mitting this evidence, that the jury would be instructed on the subject at the proper time; and in charging the jury, t!io court distinctly told them, that the could not recover for any injury or damage done oi taiiu-d since the suit was brought, but, if entitled to re- cover at all, could only recover inch damages as I Accrued to her within one year b - >. !;e sail brought." SUPREME COURT Polly v. McCall. "Therewasno evidence in the cause showing, or ten ding to show, that said Bethea, or an}' other person, ever claimed or asserted any right to overflow the lands of plaintiff or said Abererombie by said ditch and levee, except the evidence above set out. The defendants in- sisted on the trial, that the plaintiff's right was barred by the adverse enjoyment and user of the ditch and levee by Bethea and those claiming under him. The court charged the jury, among other things, 'that neither Bethea, nor those who held under him, could acquire the right to overflow the plaintiff's lands by prescription, unless they satisfied the jury by the evidence, not only that he- or they had overflowed plaintiff's lands for a period of ten years before this suit was brought, but that this wasdone as of r'ght; and that the burden of showing this affirma- tively was upon the party setting up the prescription.' The defendants excepted to this charge, and then re- quested the court to instruct the jury as follows: (1-i ) -That if the ditch and levee erected by Bethea in lS4f-[2 flowed water or sand upon plaintiff's hinds, and she knew that fact, and that this flow of water and sand commenced at a period, and continued, more than ten years before the commencement of this suit, then the plaintiff is not entitled to recover.' (2d.) "That if the injury complained of occurred more than oneyear before the beginning of this suit, then the plaintiff is not enti- tled to recover." The court refused each of these charges, and the defendants excepted to their refusal." The rulings of the court to which exceptions were re- served by the defendants, as above stated, are now ; as error. J. F. Clements, with whom were R. M. Williamson, and Geo. S. Cox, for appellants. — 1. The court erred in allowing the plaintiff's witness to speak of the written notice, without producing the paper, or accounting for its absence. — Boykin, McRae & Foster v. Collins, 20 Ala. 230; Wiswall v. Knevals, Hall k Townsend, 1- Ala. 65. The tact that the witness further testified to the service OF ALABAMA. 253 Polly v. McCall. of a verbal notice, did not cure the error in the admission of the evidence; for that would be to allow to allow the witness to decide upon the effect of the written notice. 2. The admissions of Polly in 184& were illegal and irrelevant, and ought to have beet: excluded. 3. The admission of proof as to the damage done after the commencement of the suit, was without legal au- thority; and the injury done by it was not cured by the charge of the court. — Langford v. Owsley, 2 Bibb, 215; Shaw v. Etheridge, 3 Jones' Law, 300 ; Duncan v. Mark- ley, Harper, 276. 4. The charge given by the court instructed the jury, in effect, that the defendant was bound, in order to make out his prescriptive right, to adduce other evidence thau the user itself; thereby violating the recognized principle, that the jury may presume the user to have been of right from the mere fact that it was enjoyed for a period of ten years. — Esling v. Williams, 10 Barr, 126; Stein v. Burden, 24 Ala. 130, and authorities there cited. As to a prescriptive right to divert water from its natural chan- nel, sec Middleton v. Gregorie, 2 Rich. G31; Tyler v. Wilkinson, 4 Mason, 397; Smith v. Smith, 3 Halsted, 140; Trask v. Ford, 30 Maine, 439; Bullen v. Runnels, 2 N. II. 2 5. The 'first charge asked and refused, asserted a cor- rect legal proposition, and was necessary to the protec- tion of the defendants' rights before the jury. The fact that the plaintiff knew of the diversion and overflow, war- ranted the presumption that she acquiesced in it; and her long acquiescence authorized the inference of a grant or eight.— Campbell v. Wilson, 3 Fast, 294; Tyler v. Wil- kinson, 4 Mason, 402; Angel on Water-Courses, §§ 200- 218. Baine & NeSmith, contra.— 1. As to the admissibility of parol proof of the written notice given by plaintiff to defendants, see 2 Phil. Fv. 225; iU>, 188, and cas 2. As to the admissibility of evidence of damage ac- 254 SUPREME COURT Polly v. MoCall. eruing after the commencement of the suit, for the single purpose for which it was admitted by the court, see Stein v. Burden, 24 Ala. 130. 3. The affirmative charge of the court enunciated two legal propositions, each of which is firmly established by a long chain of adjudications: 1st, that, in order to give a title to an easement by prescription, the enjoymeut must be as of right; and, 2d, that the burden of proving this rests on the party who sets up the prescription. — 1 Greenl. Ev. § 539; Angell on Water- Courses, §§ 216- 221; Brown v. King, 5 Metcalf, 181; Sargent v. Bullard, 9 Pick. 251; Mebane v. Patrick, 1 Jones' Law, 25; In- graham v. Hough, ib. 39; Felton v. Simpson, 11 Iredell, 85; A;\gell on Limitations, § 390. The charge does not, xnressly or by implication, withdraw from the jury the right to consider all the evidence in determining whether the enjoyment was of right; and if the defend- ants .-cured that it might mislead the jury, they should have asked an explanatory charge. — Ewing v. Sanford, 19 Ala. 605; 28 Ala. 200. 4. The first charge asked, it given, would have author- ized a verdict for the defendants, although the jury might have believed from the evidence that Bethea always ad- mitted the wrong, and promised every year to remove it. 5. The second charge asked confounds the injury with the damages. The injury of which the plaintiff com- plained was the diversion of the water, while she claimed the a resulting from that injury. The fact that tbe Injury — i. c, the tort, or wrongful act, by which the damage was subsequently caused — occurred more than a year before the suit was brought, would not, as the charge asserts, bar a recovery for (he damages which accrued from that tort within the twelve months. But, if injury and damages are to be considered as synonymous terms, then the refusal of the charge amounts only to error without injury ; since the court expressly instructed the jury, that the plaintiff's recovery must be limited to the damages which accrued within twelve months before the commencement of the action. OF ALABAMA. 255 Polly v. McCall. STONE, J.— [June 22, I860.]— The circuit court did not err, in admitting evidence of the admissions of the defendant Polly. The facts which the admissions tended .to prove were material, and, as against the defendant Polly, we can perceive no reason for excluding them from the jury. — Palmer v. Severance, 9 Ala, 751; Falkner v. Leit'h, 15 Aia. 9; Goodman v. Walker, 30 Ala. 500. [2.] Neither did the court err, in admitting oral testi- mony of the written notice served in this case. This fact was collateral to the issue — was not necessary to the plaintiff's success in the suit, either in consequence of any requirement of the law, or of the pleadings in the cause. This case, then, is within the exception to the general rule in regard to the proof of writit gs. — J3umas v. Hunter, 30 Ala, 75; 1 Greenl. Ev. § 5G1; 2 Phil. Ev. (ed. 1849,) 225; 4/6. 43:5. [3.] In cases where there is no secrecy in the transac- tion, holding adversely, independently, and as of right, are not very distinguishable from each other. The real point of distinction is between a tolerated, or permissive usar, and one which is adverse, or as of right. The former does not mature into a title by prescription ; while the latter, if continued by actual adverse enjoyment for a period corresponding with that which is prescribed in the statute of limitations in reference to the right of entry upon land, will confer an absolute right. There is another point presented by the evidence in this record, which we feel it our duty to notice. The record informs us that, although theditch and levee,from the time they were placed there, diverted the water from |ts accustomed channel; and although some portions of water, in times of great floods, flowed on the lands of Mrs. McCall, yet no damage was actually done 1<> the |ands in controversy, until the year 1857. There is a wide dif between the act of sinking the ditch, and the ultimate result^ viz., the flooding of Mis. McCaH'i land. The one was, in itself, rightful, because it was on tin' lauds of him under whom defendants derive their title. The use of the ditch and levee, per se } needed no 256 SUPREME COURT Polly v. McCall. prescriptive right to uphold it. The consequential re- sult—the injurious Hooding of the lands of plaintiff— did not confer a right of action, until the injury actually occurred. Till then, the user -in its injurious sense did not begin. A partial, harmless flooding, although exer- cised of right, could not, by prescription, ripen into a right to flood Mrs. McCall's lands more extensively and injuriously. The wrong, for which damages are recover- able, is the actual injury to plaintiff's land, not the remote cause from which that injury resulted many years after- wards. [4.] In the case of Roundtree v. Brantley, (34 Ala. 544,) most of these questions are considered and settled. It is also there ruled, that the statute of limitations in this action is one year. — See, also, Aug. on ' Water-Courses, §§ 216 to 221, inclusive; Ang. on Lim. § 390; Mebanev. Patrick, 1 Jones's Law, 23; Ingraham v. Hough, ib. 39; Esling v. Williams, 10 Barr, 126; Brown v. Cockrell, 33 Ala. 38; Felton v. Simpson, Hired. Law, 84; Campbell v. Smith, 3 Ilalst. 140; Sargent v. Bullard, 9 Pick. 251; Brown v. Xing 5 Mctcalf, 173; Tyler v. Wilkinson, 4 Mason, 397; Bullen v. Runnels, 2 N. II. 255; Middle- ton v. Gregorie, 2 Rich. Law, 631; Trask v. Ford, 39 Me. 437; Campbell v. WHsofe, 3 East, 294. [5.] The circuit court was right, in tellingthe jury that they could not allow damages for injuries which accrued after the commencement of the suit. — See Shaw v. Eth- erfdge, 8 Jones, 300; Harp. 276; Langford v. Owsley, 2Bibb, 21(5. But the court did not err, in admitting evidence of injury alter the commencement of the suit, with the view of affording information to the jury of the consequences of the diversion under similar circumstances before the suli.— Stein v. Burden, 24 Ala. 147. [7.] One portion of the affirmative charge given and excepted to, was, at least, calculated to mislead, if given without explanation. We allude to that part which asserts that, to establish a right by prescription, the burden was on the defendant of showing affirmatively that the act of flooding the plaintiff's laud was done as of right. There OF ALABAMA. 257 Polly v. McCall. was, it is true, evidence which tended, to repel the idea that the flooding of plaintiff's land was done as of right. But it was for the jury to determine what facta were proved. We hold, that where one land-holder, by a ditch and icvee on his own lands, diverts water, and throws it on the lands of another to his injury; and this injury continues, without increase, for ten years; and there is no evidence on the question whether such user is per- missive or otherwise, — the jury may, without further proof, infer that the use was adverse and as of right. This question, however, must depend much on the nature of the use, whether exclusive, &c. Many cases may he sup- posed — such as the use, with others, of a private way, or of a fishery — in which, doubtless, some proof would be required that the use was adverse, or as of right. — See "Brown v. Cockrell, supra. Subject to this criticism, the affirmative charge was free from error. The first charge asked was rightly refused. If given, the defendants would have been entitled to a verdict, notwithstanding the jury may have been convinced by the evidence that the author of the nuisance had given repeated and continuous assurances that the nuisance should be abated; and notwithstanding the injury may have been, for several years, slight and inconsiderable, 'and then have become grievous aud oppressive. The second charge asked should have been given. The injury complained was the damage to plaintiff's land, not the cause which produced that injury. Injury, in legal contemplation, is an effect — not a cause. [7.] It is contended for appellee, that if in refusing this charge the circuit court erred, it was error without injury; tor the same legal principle which this charge asserts, was expressly affirmed by the court in another part of the charge to the jury. This seems to have been the case; and we regret, under the circumstances, that we feel it our duty to send this case back for another trial. The Btatute, however, is positive. Its language is— "§ 2355. Charges moved for by either party, must be in writing, and must be given or refused, in the terms 258 SUPREME COURT Connor v. Trawick's Adm'r. in which they jfre written ; and it is the duty of the judge to write 'given' or 'refused,' as the case may be, on the document, and sign his name thereto; which there- by becomes a part of the record, and may be taken by the jury with them ou their retirement." This section secures to parties certain rights, and also operates a pro- tection to the court and the parties against errors of memory. Among the rights secured to the party who requests the charge, are — 1st, that he can have the charge given in his own language, if the charge express a cor- rect legal principle, and be not abstract; 2d, that he cau claim that charges thus moved for, shall be carried by the jurors with them in their retirement. We should deprive parties of these rights, if we held the doctrine of error without injury applicable to such a case as this. We have no authority to sanction a practice, which would,' in effect, abrogate the statute in many cases. Reversed and remanded. CONKOR vs. TRAWICK'S ADM'R. [detinue for slave.] 1. Delivery, or writing under sea!, necessary to constitute gift. — At com- mon law, in the absence of an actual delivei'y of the property itself, a gift could only be consummated by deed, or other instru- ment under seal ; not because the delivery of the deed was held a symbolical delivery of the property, but on the principle of estoppel. 2. Presumed existence of common law in other States.- — In the absence of evidence to the contrary, the courts of this State will presume that the common law prevails in other States. Appeal from the Circuit Court of Marengo. Tried before the Hon. C. W. Rapier. This action was brought by Burwell T. Connor, an OF ALABAMA. 259 Connor v, Trawick's Adm'r. infant, suing by his next friend, against the administrator of Ignatius A. Trawick, deceased, to recover a slave named Toby, which the plaintiff claimed under an alleged gift from his grandfather, Burwell Trawick, deceased, as- evidenced by an instrument of writing in the following words : "Know till men, by these presents, that I, Burwell Trawick, of the county of Attala, State of Mississippi, for divers good causes and considerations me thereunto moving, have this day given and conveyed unlo my grand- daughter, Isabella Porter, my boy ]STed, also one feather- bed, and all the furniture thereto belonging; and I also- give and convey to my grand-daughter, Susannah Porter,. my bo} r Martin, and one feather-bed and furniture; and third, I give and convey to my grandson, Burwell T. Con- nor, my boy Toby, and watch; saving to myself, however, the use and benefit arising from all of my said property during my natural life; and I hereby appoint E. M. Wells, esquire, my trustee and guardian, to manage and control the above-mentioned property, until said children become of age or marry; giving uuto each negro, at the end of the year, the sum of five dollars, for the proceeds- of their labor. April 25, 1851. U B. Teawick." " We have this day witnessed the delivery of the negroes, mentioned above, April 25, 1861." (Signed by William Holland aud Jno. T. -Holland.) This. instrument was executed in the State of Missis- sippi, on the day of its date, and was delivered by said B. Trawick to E. M. Wells, in. the presence of William Holland and Jno. T. Holland. William Holland testitied, that, at the time of its delivery, "B. Trawick called up the negroes, and told them what he had done, and that Judge Wells was the trustee, and would take charge of them after his death." Jno. T. Holland testified, "B. Trawick then called up the negroes, and explained to them what he had done — that he had given Ned to bella Porter, Martin to Susannah Porter, and Toby to 260 SUPREME COURT DOT v. Trawiek's Adm'r. Burwell T. Connor; und told them that 'Judge Wells would see to them,' or words to that effect." E M. Wells testified, "B. Trawick then called up the negroes, and told them, that he had given Xed to Isabella Porter, Martin to Susannah Porter, aud Toby to B. T. Connor, and had appointed me his trustee and guardian to see to them; and I then told them to go and attend to their old master's business." The slave Toby continued in the possession of said Burwell Trawick up to the time of his death, which occurred in March, L853; aud, on the final distribution of his estate, was allotted to Ignatius A. Trawick, the defendant's intestate, who was his son. "On this evidence, the court charged the jury, '1st, that the instrument under which the plaintiff claims the slave, is not a deed, and has not the effect and operation of a deed in this case;' 2d, 'that if said instrument was executed by B. Trawick, and b} 7 him delivered to Wells, such delivery would not be sufficient, of itself, to pass title from Trawick by way of gift, unless the slave was also delivered ;' and, 3d, 'that to constitute a valid gift, there must have been some ostensible act done to signify a transfer ot the possession of the slave, aud, connected therewith, a present intention, on the part of the donor, to pass the dominion over the property from himself to the donee, or to some one else for him.' The plaintiff' excepted to each of these charges, and then requested the court to instruct the jury, 'that if they believed, from the evidence, that B. Trawick intended to give the boy Toby to the plaintiff, and, in order to carry out this intention, wrote the instrument read in evidence, and cailed on per- sons present to witness its execution, and signed it in their presence, and delivered it to E. M. Wells, thereby intending at the time to convey said boy to the plaintiff; and that the boy Toby was then present, — then the jury must find for the plaintiff.' This charge the court refused to give, without qualification ; and the plaintiff excepted to its refusal." The charges given by the court, and the refusal of the charge asked, are now assigned as error. OF ALABAMA. 261 Connor v. Trawick's Adm'r. Brooks & Gaurott, for appellant. — A gift of personal chattels is the act of transferring the right and possession of them, whereby 0116 man renounces, and another ac- quires, title and interest therein. Delivery is essential to the validity of a gift; but it needs not to be actual — it may be constructive, or symbolical. The delivery of a deed is a constructive delivery of the property, and passes the title and dominion to the donee. — McCutchen v. McCutchen, 9 Porter, 650; Adams v. Broughton, 13 Ala. 731; Newman v. James & Newman, 12 Ala. 29. But it is not necessary that the instrument of writing should be under seal, though it usually has that form.; and the courts, in speaking of such constructive delivery, generally use the term deed, because it is the appropriate description of the particular instrument before them. At one time, a deed was regarded as au instrument of unusual sanctity and solemnity; it was presumed to be founded upon a valid consideration, and its consideration could rtot be impeached at law. But the old doctrine has been greatly modified in modern times. In reference to per- sonal property, a deed has no more potency to pass title than an unsealed writing. Blaekstone says, that a gift may be made, "either in writing, or by word of mouth," (2 Bla. Com. 356;) and it is not intimated that the writing must be under seal. A gift of a chattel, "by deed or writing," is good, without an actual delivery of the pro- perty. — Flowers' case, Noye's R. 67; Irons v. Smallpiece, 2 Barn. & Aid. 551; Carradine v. Collins, 7 Sm. & Mar. 428. S. F. IIalb, contra. — All the authorities lay down the rule, that a gift ia ool effectual to pass property, unless it is accompanied by actual delivery, or consummated by deed. Here, the writing was not under seal; and there could be no actual delivery of the slave, because, by the terms of the instrument, the donee was not to have pos- A. J. WALKER, C. J.— [June 21, 18G0.]— One of the objects of this bill is to recover the interest of Dorcas Beau in the estate of her deceased husband, Alexander Beam In that branch of the case, Charles Mallet, the co-complainant of Dorcas Bean, has not the slightest in- terest, and he lias no connection with it. For the pur- s of this opinion, we will concedeto the complainants, without deciding the question, that upon the facts alleged the two complainants were, as distributees of the estate of Mallet, vested with a joint ownership in the property, Which was originally derived from the estate of Riley, and the accessions to it. This being conceded, the c plainant Charles Mallet may have a right to recover from •laic of Bean for the use of his moiety of the prop- erty. But the other complainant, Dorcas Bean, can have no such right.; for, by the marriage in 18-46 to Alexai B< i an, and the reduction to possession by the husband, the latter became entitled to his wife's personalty, and to the usufrucl of her real estate during the coverture. If she had a separate estate in the property, ('which the hill doe9 not show,) it is not, affected by our married m's laws, and the husband's representative would not lie responsible to her for the inconn and prof which she had permitted him to i firing theeo, tflre. — Roper v. Roper, 29 Aha. i: IT. There is uo point of view in which Dorcas Bean is interested in tie cry for the irse by her husband of the property which she SUPREME COURT Boiling v. Whittle. ami her co-complainant had at the time of her marriage; the same thing is true as to property procured with the proceeds or income during the marriage. There is, therefore, not the slightest interest in Dorcas Bean, so far as the right of her co-complainant to recover for the use of the joint property is concerned. The bill seeks nothing so far as the property itself is concerned; for it is in the possession of Dorcas Bean, and does not seem to be even claimed by the heirs or representatives of Bean's estate. The bill, then, does not make out a case of any commu- nity of interest in the two complainants, but is desigued to enforce rights distinct, unconnected, and having no re- lation to each other, and not such as to make it even a. matter of convenience to consider them together. Such a bill is multifarious. [2.] It is objected, that the chancellor dismissed the bill for multifariousness in the absence of a demurrer. It is rarely advisable that a chancellor should, sua sponte, dismiss a bill for such a cause; still, this court has deci- ded, that he may do so, and that the decree will not be reversed, if the objection really exists. — Felder v. Davis, 17 Ala. 418. The decision referred to is well sustained by the authorities, and we are content to abide by it. — 1 Dan. Ch. PI. and Pr. 397; Story's Eq. PI. § 284. a; Greenwood v. Churchill, 1 M. k K. 546; 3 Howard, 411; 10 Ohio, 456. Decree affirmed. DOLLING v*. WHITTLE. [trespass quasi olausum fregit.] 1. What constitutes trespass to realty. — Where a house i& erected partly on the lands of the plaintiff, and partly on the adjoining lands of OF ALABAMA. 269 Boiling v. Whittle. the,' defendant; but is not shown to have been so erected by agreement with the plaintiff, under circumstances which would justify its removal as a mere chattel — the mere fact that the greater part of it is on the defendant's lands, gives him no right to enter on the plaintiff's lands, or to remove tin.' house therefrom. Appeal from the Circuit Court of Butler. Tried before the Hon. Robert Dougherty. ThI3 action was brought by John Billing, against A. F. Whittle, to recover damages for a trespass to land. The complaint was in the form prescribed by the Code, page 555. The evidence adduced on the trial, and the rulings of the court, are thus stated in the bill of excep- tions: "The plaintiff proved by a witness, that the de- fendant removed a house, worth about sixty-five dollars, from the plaintiff's land, and put the same on his own land, and used it; and it was proved by- a witness who had been a surveyor for many years, and who had made a survey of said lands at the instance of the plaintiff, that said house stood about thirty feet from the line of the defendant's land. The defendant then introduced a wit- who had made a survey for him, and who was the county surveyor at the time of said survey; and accord- ing to the testimony of this witness, the line betv. ffhe defendant and the plaintiff ran through said house, leaving a part thereof on the plaintiff's land, but the larger part on the defendant's land. The court charged the jury, that if they believed from the evidence that the larger part of the house was on the defendant's land, then they must find lor the defendant." The plaintiff excepted to this charge, and he here assigns it as error. Watt.-. Judgh & Jackson, for appellant. STONE, J.— [Juno IS, I860.]— We think the eii court, erred in the charge to the jury. The phase of the evidence most favorable to the defendant, (and that which 1 by the charge.) left a portion of the house ou the land of the plaintiff. Thne i-. in the record, no evidence that the house was placed there by agreement SUPREME COURT nd & Howell v Wynn's A>lm'r. ■ plaintilf, under circumstances which would jus- its removal as a mere chattel. — See Wells v. .Bannis- ter. 4 Mass. 514; Ashman v. Williams, 8 Pick. '402; Cur- tiss v. Hoyt, 19 Conn. lo4. This being the ease, the ndant had no right to enter on the land of plaintiff) nor to remove a fixture from it. — 1 Chit. PI. ITS; 1 Ilil- liard on Torts, 51G-7; 1 Milliard on Real Property, 3; ,,z v. Fincber, 12 [red. 297. Judgment of the circuit court reversed, and cause re- manded. K.V;LAXI)'& HOWELL vs. WYNN'S ADM'R. [ACTIOS OS COMMON M"M.V COUNTS.] 1. tSt ■■'' of frauds; pr ■< ' ■ pi . — A decree having ndered against a sheriff and the sureties on his official I, on final &ettlemen1 of Ills accounts as administrator ■-' ■'.. a eerbal promise by the sureties, made to the plaintiff in the decree, that they would pay an item of costs which, by mis- . had not ! - M taxed, in c msideration that ho would allow a lit on the decree, w bioh intended, had been rendered for more than was justly due, isan original undertaking, founded msideratipftj and is not within the statute of frauds. 2. Judicial notice <\f therijf'' 8 term of ojh'ee.-* The supreme court will j dicinl notice ol the time when a sheriff's term of office Apieal from the Circuil Court of Talladega. Tried before the Bo4i. Robert DouaHERir. Tins action was brought by Elenry McClellen, as ad- ministrator d( b of the estate of Mary Wynn, »rge li. Ragland and Reese •Howell, and was commenced in a justice's court. In the circuit court, on appeal from the justice's judgment, the defend- ants ik waived a Statement in writing by the plaintiff, and OF ALABAMA. 271 Ragland & Howell v. Wynn's Adm'r. the plaintiff consented that the defendants might prove everything as if specially pleaded." The plaintiff him- self was examined as a witness under the statute, (Code, § 2313,) and testified as follows: "Solomon Spence had been sheriff of Talladega county, and, by virtue of his office as sheriff, had been administrator of the estate of Mary Wynn, deceased; and the defendants were the sureties on his official bond as sheriff. The plaintiff was afterwards appointed administrator de bonis non of said estate, and commenced proceedings against said Spence and his sureties, in the probate court of Talladega, for a settlement of said estate; and obtained a decree against said Spence and the defendants, for $155 85. In taxing the costs in said proceedings, the probate court omitted to tax the printer's fee, amounting to about §35; and plaintiff called on him to re-tax the costs, so as to include that item: but the judge advised him to see the defend- ant-, as he thought they would settle without a rule. Plaintiff then called on defendants, who said they would not settle said costs; contending that the decree against them, as the sureties of said Spence, had been rendered for too much by fifty dollars, and that Spence was entitled to a credit lor that amount. Plaintiff then proposed to allow them a credit of fifty dollars on said decree, if they would pay him the printer's fee. They at first refused, but afterwards agreed to it, and told plaintiff to instruct his attorney as to the terms on which they had settled. Plaintiff accordingly instructed his attorneys to enter the credit of fifty dollars on said decree, and it was entered I understanding; but the defendants had not paid said printer's fee." The plaintiff then intro- duced one of hi> attorneys as a witness, who, aft er stating 'the; ast Spence and his 8Ui .the court, and that an execution on the d into the hands of Lawson, the sheriff;" testified a fend ants, with the sheriff, came to my < and • both, tb" other had with plaintiff, if he would allow a credit to go on the pro; that they would pay •_:•_< SUPREME COURT Ragland Jb ITowell v. Wynn's Ad'm'r. up the remainder and settle the suit. I do not know that the subject of costs was mentioned at all; but rny understanding at the time was, that the defendants were to pay all the costs of the proceedings. With this un- derstanding, and the further statement by the defendants that, if there was anything wrong about the matter, it would be corrected when the plaintiff came to town, I signed the receipt on the execution, as attorney for the plaintiff". I received the money, and afterwards paid it to my partner, who settled with the plaintiff." The pro- bate judge, by whom the decree was rendered, was also examined as a witness on the part of the plaintiff", and testified, '-that tha printer's fee in the case was $34, and thaf it had not been taxed in the bill of costs." This being all the evidence in the case, the court re- fused to charge the jury, at the instance of the defend- ants, that if the defendants' promise was not iu writing, they could not find for the plaintiff"; and instructed them that, if they believed the evidence, they must find for the plaintiff. The defendants excepted to the charge given, and to the refusal of the charge asked; and they here assign the same as error. L. E. Parsons, for the appellant. Jas. B. Martin, contra. It. W. WALKER, J.— [July G, I860.]— The promise of the defendants, being founded on a new consideration beneficial to the promisor, was an original undertaking, and not within the statute ot frauds. — Martin v. Black, 21 Ala. 309; Blount v. Hawkins, 19 Ala. 100. [2.] The bill of exceptions does not expressly state that, the agreement between the parties was made, and the de- cree credited in pursuance of it, before the commence- ment of this suit. But it is shown that these transactions occurred while Lawson was sheriff' of Talladega county; and we judicially know that he ceased to be such sheriff in 1854, nearly two years before this suit was instituted. We think that the evidence set out in the bill of ex- OF ALABAMA. 273 Wynne and Wife v. Walthall. ceptions shows a valid contract, and its breach, aud that the court did not err in the charge givin. Judgment aflirmed. WYJOE and WIFE vs. WALTHALL. [bill in equity for constuction of will.] 1. General rules of construction. — In the construction of wills, all the parts are to he construed in relation to each other, so as to form, if possible, one consistent whole ; and though the former of two inconsistent clauses must yield to the latter, yet tins rule is only applicable after the failure of every attempt to give to both such a construction as will render them equally effective. 2. Bequest construed to.vest in children equal interest with widow in an- nual iwrease of property. — Testator, by the first clause Qf his will, directed that all his property, both real and personal, should be equally divided among his wife and three children, share and share alike: and that his entire estate should be. kept together and managed by his executors, (who were also appointed guardians of his children,) until his eldest child, a son, should attain his majority, when his sharo was to be set apart to him : the Bhare of each daughter to be allotted to her when she attained the age of twenty- one years, or married before that time with the consent of her guardians. The second clause was in these words: " It is my will and desire that, after all my just debts and liabilities shall have been paid, the said executors and guardians of my children shall paj over to my said wife, from time to titaei as jhe may call for the* same, such portion or part of the annual increase or profits of all my said propi rty as she may desire; the remainder to be by them invested for the benefit of my said wife and children." The fourth clause directed his executors to sell a certain town lot, to purchase another luitaMt lot in the same village, and to have erected thereon a dwelling-house, "for the residence and benefit of my [hi>| said wife, after such plan, and in such style a- she may ire and d The third clause directed the Bale o plantation on which he resided, and the (il'tii and sixth clau sale of certain personal property; while tl i clause provi- ded, that if the widow or any 0) children should die be- to tho latter of their respective shares, the sur- 274 SUPREME COURT , Wynne and Wife v. Walthall. vivors should take the interest of the deceased : and that it' all i] ildren Bhould ne years, or if she should marry at an earlier age, with the approval and consent of her guardian, then shall her share be Bet apart and conveyed to her-; and in like manner, the youngest, when she shall arrive at the age of twenty-one years, or if she should marry at an earlier age, with the like approval and consent of her guardian, then shall her share be set apart and conveyed to her. OF ALABAMA. 275 Wynne and Wife v. Walthall. "Item, it my will and desire that, after all my just debts and liabilities shall have been paid, the said execu- tors and guardians of my children shall pay over to my Baid wife, from time to time, as she may call for the same, Such portion or part of the annual increase or profits of all my said property as she may desire; the remainder to be by them invested for the benefit of my said wife and children, "Item, it is my will and desire, that the tract, of land on which I reside, called the 'home tract,'" (particularly describing 1 it,) " shall, on the first day of January, 1853, be sold to L. X. Walthall, and a fee-simple conveyance [be made] to him and his heirs forever, free from any incum- brance of- dower or otherwise, (provided the said L. IS". "Walthall desires to purchase the same,) at the price of twelve dollars and a half per acre; and in the event the said L. X. Walthall shall not desire to purchase the said land at the price mentioned, then it is my will, that the said lands shall be sold at public outcry to the highest bidder, on the first day of January, 1853. "Item, it is my will and desire, that my said executors shall sell, at private or at public sale, for cash or on time,- as to them shall seem best, the lot or parcel of land situa- ted in the village of Newborn, in Greene county, pur- chased by me from Thomas R. Borden, esq., and shall purchase in said village another suitable lot, and shall, prior to the first day of January, 1853, erect, or cause to be erected thereon, a dwelling-house forthe residence and benefit of my said wife, after such plan, and in such style as my said wife shall desire and direct. "Item, it is my will and desire, that ray Baid executors shall sell, at an early convenienl day, my riding-horse, at private or public sale, for cash or on time, as to them may seem b "i ray will and desire, that such of my small mule-colts, and old mules unfit for use, as mv said i may think it advisable to sell, together with all my and ho M be sold at public outer the highcsl bidd . oc the first day of Januar bay mare, called anil the colt of the Irwin DQfll 276 SUPREME COURT Wynne and Wife v. Walthall: " //, m, it is my will ami desire that, in case of the dentil of my wife, or of either of my children, before said chil- dren shall arrive at the age of twenty-one years, or the marriage of either of my daughters, then the survivors shall have the share that would have been allotted to the deceased; and in the event of the death of all my chil- dren, before they shall arrive at the age of twenty-one years, or the marriage of my daughters, ray wife survi- ving, then my said wife shall have the proceeds and profits of all the property during her life; and at her death, all my said property shall be divided equally between my brothers and sisters as may be living, and the children of those that may be dead, except such property as I have acquired, or may acquire, in right of my wife: the prop- erty thus acquired, in right of my wife, in the event last above mentioned, shall descend to the heirs of my said wife, in the same manner as if she had never been mar- ried. "Item, it is my will ami desire, and I hereby nominate and appoint ra} T trusty friends and beloved brothers, John M. and Thomas M. Walthall, executors to execute, this my last will and testament, and the guardians of my children during their minority." The testator died in Perry county, Alabama, the place of his residence, in September, 1851. His will was ad- mitted to probate, and letters testamentary thereon granted to Thomas M. Walthall, one of the executors therein named, in November, 1851. The personal prop- erty of the estate was appraised at about $50,000; the value of the lands is nowhere stated in the record. In March, 1859, the executor resigned; and the widow having in the meantime married P. C. Wynne, letters of administration n of the testator's family. It made no provision for the main- te widow, or for the support and education of tic children, still in infant helplessness, during the racted period antecedent to the di visit ate. preservation of the family relation was so opvi natural, ami condition, that ai ♦ provision upon the subject was not requi th" w ill must ha\ framed in i i re- That i' was anticipated by the testator, i indicated iu the direction of the fourth clause, for the pur Ln the villa, rn, an 1 ihe erectiou upon it of a suitable house for the n It can i . SUPREME. COURT Wynne and Wife v. Walthall. ipposed, that the testator intended a residence, procured by the executors at the expense of an estate Conveyed by a previous clause to the wife and children in equal shares, should be occupied by the wife alone, with- out the children, whose tender years made them neces- sary subjects of maternal care. How was it designed that this family of widow and children should be main- tained after the discharge of the debts of the estate? The executors could not, consistently with the will, main- tain them, either out of the income of the estate, or the corpus of the property: for in the second clause there is an unmistakable direction, that so much of the income as the widow may leave' shall be invested, and the prop- erty itself is required to be kept together and divided at the appointed time. The widow has certainly the means of maintaining herself out of the profits from which she is authorized to'draw by the second clause; but how are the children to be maintained and educated? It is im- possible that the family should be kept together, in a common residence, and that the widow should maintain herself from the payments to her out of the income, without a participation by the children. The will, in its operation, therefore/necessarily leads to the maintenance of the children out of the fund drawn by the widow from the profits of the estate. This result, so obvious, must have been intended. It is inconceivable, that the testator, having in the. second clause directed his attention to the operation ol his will upon his family before they could receive their respective shares, should have had regard to his wife alone, and intentionally left his children without a maintenance; and yet he has done that unnatural thing, if the children are not to be maintained out of the profits drawn by the widow; for he follows up the bequest out of the income in favor of the widow, with the direction for the investment of the residue. For reasons similar to those from which we deduce the children's right to a maintenance out of the income re- ceived by the widow, we decide, that she must be re- stricted as to the purpose for which she may draw upon OF ALABAMA. 281 Wynne and Wile v. Walthall the income. The executors must pay over to her as she may desire'; but the payments must be for the purpose, and as the means of maintaining herself, and maintaining and educating the children. If the widow is allowed to take the whole of the income, whether desired tor those purposes or not, the spirit of equality as between herself • and children, which pervades the will, is disregarded; the equality of right declared by the first clause is infringed-; the widow, at the time appointed for the divisiou, will receive her. share accumulated from the income of the Common property of herself and the children, and there will be no remainder of the income to be invested, as contemplated by the last clause of the second item. If the sceond clause be so construed as to give to the widow a right to take the profits to the extent of her de- sire, for the purpose of maintaining herself, and main- taining and educating the children, it merely modifies the operation of the first clause to suit the necessities and condition of the family before the division. Such was the effect which the testator designed it should have. lie intended that the widow, in whom he confided, should, without stint or question, draw from the profits for the purposes above stated, and that she should thus be saved from the annoyance and humiliation of having the means of maintaining herself and children measured out to her according t. 1. 19 SUPREME COURT [ n v. Ilili. _ Des. Iv, and Vimduyne. I SfcO Id ' 11 of traotioa arose, which wi entical with l which arises in Ihii the maintenam children ; and tl nue which v inthiecaae. -•>. M .•!.. ! v McDonnell, court will pn'Mimo that proper] filed oourt adm Appkal from th i Court of Calhoun. Tried before the Lion S. D. II \u:. This action Wl fit by M. W\ Wynne, against W< .1. Whisenaut; aifd was founded on the defendant's pro* OF ALABAMA; 283 WhisMiant. paissorj i er Id, 1854, and payable on the Is! day of May m with interest from date. No pleas appear iu the record. Od the trial before the jurj . after the plaiutili had read in e\ i ■,.■ note «. in his complaint, lanl proved that, a abort time re the note was • had been a fight be- tween him and his •> the on<- side, and the plaintiff on the other; that the plaintiff bad sustained considerable personal injury in the fight, and had i ward oat a warrant against the d< and his two e, for an aeaault and and then ii evid g to show, that the oonsideratioi 1 note was an ag men) betwe< n plain tin* and d< Pendant, to th that plaintiff would stop said prosecution, and would in tend the circuit court, bat would L r " put of the county. plaintiff introdu< odutg to that the & a of Baid I he injuries Lnfl on hie person in the fight. The defendant 1 at the n. I circuit court for and hi- ' I ;' pro] (amined as a witness in be! the To • ■ laintiff • d aud ii . . i The Which gr plaintiff ill as error. -I PREME ■ 'nnnt. . I'.. Martin, for appellant. •.. ft .In<». White, eonlra. STONE, J.— {July I. I860.]— If the defendant in •" bad pleaded, that the consideration of the n on was, thai tin* plaintiff should abandon the prosccutioto ,<1 instituted again si the defendant — should leave the ppeat as a witness on tl. i nd that the plaintiff, in violation of his agreement, 1 lared and given evidence on th< trial cainat defendant, — the . would, perhaps, be double, and unnecessarily prolix; but a demurrer to it would not be sustained. The ]>lea being in this form, no one, we apprehend, would gaii the defeudant to introduce evidence in sup* each averment in th< Again: Tl of Kirkman v. Eaton, (35 Ala. 2 least, .-iii implied authority for the proposition, that who has ;i valid it, Oil ground of illegality . may waive that fie defense, and rely on the averment that th mentium — the concurrence of minds I the tracting partis — has never been consummated. In the ted, although the note was executed to be red, ami was wagered on the result of an election was pending; yet the plaintiff recovered in the court w, and the judgment was affirmed in this court. The plaintiff having declared specially on the note in i, which note purported to be Bigned by the party ■ be charged, he made out a pn for ery when he read hie note in evidence. — Code, petent for defeudant, under an approprii e, to prov< that the consideration was, er in whole or in part, illegal; or, waiving that, to that the plaintiff had \ arl of the agree- ment, which furnishi ation of the promise. It the consideration was in part illegal, it avoided the whole note.— 1 Story on Contr . 159; 1 Par- sons on Cont • In the present record there are no pleas. In such case, OF ALABAMA. McGill v. Monette. it is our duty to presume that proper pleas were filed to let in the evidence.— Shep. Dig. 572, § 152. The first ami second exceptions of defendant arc covered "by what wo have said above. There ia nothing in the third exception. It was certainly permissible for ei party to pr ve the iv. leratioo of the note. Judgment affirmed. McGILL vs. MONETTE: f ACTIOS AGAINST OWNERS OF STEAMBOAT Pi K1 I.. ■ ■•■■ A bailee for reward, I ■ ■ of destii naintain an artion in hi* own mbpat, for the i of their servants in the transportation of the ird, ana was compelled t< io the owners of .1 •v. — An objection 1 on whi !]. , annol when the ■ '1 in e\ ■ ■ ■ 1 !ktc • I not 1 1 1 ■ I'REME COURT II t. Moi from tho breach of ithin 7. ■ not I 'ii in the the appell Prom the City Court of Mobile. Tried before the Bon. by. Tn hn W. Mom William BicGIIl and Harvey . bul was :\ y abaft Snow, who died before the trial. The com- plaint contained two counts, in sub -follows: 1. a the 8th December, 18f)5, plaintiff ■ . be delivered to defendants, at their s] i and re tain barge laden with eight bushels a, the property of plaintiff, and with two hundred and forty-foor I . the of divers otb< r pei which plaintiff had un- ken for a reasonable reward to carry anil safely de- liver at Mobile, (the dam the river only excepted,) to i laid defeodai and carried to Mobile, for I ible reward in that behalf; yet heir duty in that behalf, con. ducted themselv* and negligently in the if said barge, thai said barge was sunk; whereby orn wai ed and lost, and said cotton itly damaged, and plaintiff thereby lost his reward,' and was compelled to pay a large Bum of mom dam. _'. For that where:,., on the 8th December, lanta being the owners of the steamboat . plaintiff delivered to the captain of said steam- laden with corn and cotton, the pro* perty of plaintiff and divers other persons, which plaintiff had undertaken to carrj to Mobile, and there safely to deliver in good order, the dangers of the river on!;. cepted,) and for which be was to receive from the owners OF ALABAMA. 287 M. Gill v. ttonefte. of said cotton a reasonable reward; wbieh Baid barge was to Ite safel}- towed to Mobile by the defendants' Baid nt, for a reasonable reward to the defendants in that behalf; yet defendants' said agent, not regarding his duty in that behalf, conducted himself so carelessly and negli- gently, in and about the towing and carrying of said barge, that the said barge, by reason thereof, was filled with water and sunk; "win Rid corn was greatly damaged and destroyed, and plaintiff's said freight, or a great part thereof, was wholly lost to him, and said cotton was greatly damaged," &c. The defendants demurred to each count of the com- plaint, so far as it sought a recovery for the damage done to the cotton of third persons, "because it is no where shown that plaiutiff was bound by his contract with said 'divera other persons' to pay them for any damage done to their cotton in its transportation upon his barge; m>r, if there was any contract, that the same wa> known to tin' defendants; nor that plaintiff was obliged in law to them for injury done to their cotton as . but said obligation is alleged, as a conclusion of law, from - not made to appear in either of said counts; and i count shows tl to the cotton, the ac- tion should have been brought in the owners' nai The court overruled the demurrer; and the defendants then pli aded, in short by con-rut, ti al issue, and the statu t< of limitations of one year; o i Which the trial, as the bill of exceptions shows, the plain- ft'ered in evid tion of one Raby, which had been tal nd cross-interrogato- . and had been published at tl ding term of the court. At the time ot filing cross-int- defendant's com i on the into in chief ' ' ■ • e ami affidavit wa and a comn . but daut reijuii and pla< : to the : 288 SUPREME COURT McGill v. Monette. notice had been given to him of the time and plac which it was to ne taken. The court overruled the mo- tion, on the ground that it came too late; and the de- fendant excepted. ]t was admitted, that the plaintiff's barge, laden with cotton and corn, was delivered to the steamboat Osc t» be towed to Mobile; that while said steamboat was sliding the river, with the barge in tow, she was passed by the TUinois Belli : that the waves caused by the two boats, in meeting and passing by caofc other, swept over the barge and sunk it ; and that the Osceola at that time belonged to the defendant and said Harvey Snow. But the evidence was conflicting, as to the terms of the Contract by which the captain of the steamboat undertook to tow the barge, and as to the remote cause of the sink- ing of the barge. The plaintiff's evidence tended to show, that his barge was properly laden; that the steam- boat contracted to tow it safely to Mobile; that the cap- tain of the steamboat afterwards took in tow, against the plaintiff" ll8t ranees, two barges heavily laden with wood, which were almost in a sinking condition; and that in attaching these barges to the steamboat, the ropes Were passed across the plaintiff's barge, in such a manner that it was forced down into the water, and was not able to ride- the waves when the other steamboat passed. On the other hand, the defendant's evidence conduced to show, that the plaintiff's barge was loo heavily laden ; that the captain of the steamboat declined to tow it on that account, and only C i d to do so on the plain- till' assuming the risk ;»and that the barge was sunk in consequi nee of its being over-laden, and not in conse- quence of any m • or unskillfulness on the part of the officers of the Bteamboat. The plaintiff offered in evidei al suits brought against him by third persons, which, it was admitted, "were brought to recover damages for injuries done to the cotton op his barge when it was sunk, while in tow by the Osceola ;" and also several receipts for moneys paid by him toother persons, for damages done to their cotton while ©n his OF ALABAMA. 289 McGill v. MonettG. barge at the same" time. The defendant objected to the admission of these judgments and receipts as evidence, "on the ground of irrelevancy ;" the court overruled the objections, and allowed said judgments and receipts to be read in evidence, "for the single purpose of showing that the several amounts therein specified bad been claimed and demanded of plaintiff, by the several owners of the cot- ton, for damages done to their cotton while on plaintiff's barge in tow of theOsceofo;" and the defendant excepted. The plaintiff introduced one iStollen worth as a witness, who was a partner in the house of J. A. Wetnyss & Co. of Mobile, to wbom some of the cotton on the plaintiff's barge was consigned; who testifiecLto the price at which the damaged cotton was sold, and to the damage sustained from the submersion in the water. The defendant moved the court to exclude from the jury the entire testimony of this witness, "on the ground that it was not legal evi- dence," because the witni 88 did not testify to facts within his personal knowledge. The court overruled the objec- tion, and the defendant excepted. The defendant requested the court to instruct the jury — "1st, that the plaintiff cannot recover for any dam.' age supposed to be 1 by cotton in this transac- tion, when the owners ol such cotton have not demanded any damages of him, and when he ha- not paid them any damage.; 2dly, that if they believe the captain of the Bteamboal did nol conti I iw the I fely, but that the risk was to be taken by the barge, then the stat- ute of limitations of one year would apply.'' The court refused each of th< -•• < harg 3, but instructed the jury, in connection with the refusal ol the second cl 'that unless the plaintitl made out to the action a con- tract ol towag uld not recover; and that therefore t limitations of 1 ir had ■bthing to with the to which charge ti ed. The ru . on the 1 e, and in the el: 1 the jury, are now assigucd as error. 290 SITREME COURT MoGill v. Monntte. E. S. Dargan, with Jno. Hall, for appellant. Robert II. Smith, contra. : R. W. WALKER, J.— [June 7, I860.]— 1. The demur- rers to the complaint were properly overruled. Although the plain tiff held the cotton as bailee, yet it was compe- tent for him to sue in his own name on the contract made with the defendants. If it be conceded that his right to sue on this contract is dependent on his liability over to his principals, it is plain that this liability results, as mat- ter of law, from the allegations of the complaint. — Cox v. Easley, 11 Ala. 369; Steamboat Farmer v. McCraw, 26 Ala. 204; Story on Bailments, § 94; 1 Parsons on Contracts, 633; Hare v. Fuller, 7 Ala. 717. 2. The objection to the deposition of the witness Raby came too late. — Code, § 2328. 3-4. The transcripts and receipts were ottered, in con- nection with the written agreement of counsel which is 6et out in the bill of exceptions, for the single purpose of proving that the owners of the cotton had demanded of the plaintifi compensation for the injury it had sustained while the barge was in tow of the steamer. There is 6ome reason to in&r from the bill of exceptions, that this evidence was offered to rebut evidence of a contrary ten- dency previously introduced by the defendant. However this may be, it does not lie in the mouth of the appellant to say, that the making of such demand by the owners of the cotton was no£ a matter involved in the issue before the jury, or that the admission of evidence competent to establish that fact should work a reversal of the judg- ment. The bill of exceptions clearly shows, that one of the matter! of defense relied on by the defendant was, that the owners of the cotton had made no demand of compensatiiH ; and that he asserted on the trial the legal proposition^ that the plaintiff was not entitled to recover without proving such demand. Having thus insisted upon the necessity of such evidence, as essential to make out the plaintiff's cause of action, he cannot now shift his ground, and be heard to say that the very evidence, with- OF ALABAMA. 291 MoGill v. Monette. out which he then claimed that the plaiiTtif could not recover, was in fact irrelevant and illegal. If, therefore, the fact of demand was irrelevant, the appellant is estop- ped from saying so. Ilence, the only objection which he can here urge to the admissibility of the transcripts and receipts in evidence, is, not that the fact which they were introduced to establish was irrelevant, but that, assuming it to have been relevant, they did not constitute a proper or legal means of proving it. There is nothing in this objection; for it is clear that, in connection with the agreement referred to, the judgments and receipts did tend to show that the parties who obtained the judgments aud executed the receipts, had demanded of the plaintiff com- pensation for the damage done to their cotton. They were, therefore, competent evidence of that fact. — Dar- rington v. Borland, 3 Porter, 9; 1 Greenl. Ev. §§ 528, 538-9; Ilarrell v. Whitman, 20 Ala. 519; Goodman v. Walker, 30 Ala. 500. 5. The suit was for damages arising from the breach of a contract. If the plaintiff did not establish the con- tract, and its breach, he was not entitled to recover. It follows, that the statute of limitations of one year had nothing to do with the case. 6. Some of the evidence T>f the witness Stollen worth was clearly admissible; and the motion being to exclude the whole of his testimony, there was no error in over- ruling it. 7. The other assignments of error are not insisted on in the briefs of the counsel for the appellant, end we do not notice them. Judgment affirmed. 292 SUPREME COURT Wood 'l Htlc, for the use of another." A guardian, as such, has not the legal title of his ward's estate; and, hence, that section can exert no influence on suits like the present. — Sutherland v. Goft, 5 Por. 508; Hooks v. Smith, 18 Ala. 341. [2.] If the amendment was properly allowed, we need not inquire whether the record sufficiently raises the question of its allowance.— See Bryan v. Wilson, 27 Ala. 208; Felkel v. Hicks, 32 Ala. 25. The alteration in this case was not an entire change, or substitution of one party plaintiff for another, Such change, under our de- cisions, would not be allowed. — Leaird v. Moore, 27 Ala. 326; Friend v. Oliver, ib. 532; Dwycrv. Kinnemore, 31 Ala. t 404; Pickens v. Oliver, 32 Ala. 626. The amendment simply changed the character in which the plaintiff sued, by showing that he declared, not in his own right, but in that of another, upon whose title the statute permits him to recover. In Crimm v. Crawford, (2!> Ala. 626,) we said, "To amend the complaint, so as to show the ca- pacity in which the plaintiff sues, produces no inadmis- sible departure from the Summons; for, notwithstanding the summons is, under the decisions ot this court, deemed as oue in favor of the plaintiff' as an individual, yet it is permissible for the plaintiff', upon general process, to de- clare as an administrator." — See, also, Age.- v. Williams, 30 Ala. 636. The principle settled in Crimm v. < Jrawford, supra, is well sustained by authorities, many of which are therein cited. We cannot distinguish between the ri to amend in that ease, and in this; and, hence, we hold, 296 SUPREME COURT Williamson & McArthur v. Woolf et al. that the amendment was properly allowed in the present Judgment affirmed. WILLIAMSON & McARTIIUR vs. WOOLF et al. [action on official bond of justice of the peach.] 1. Authority of intendant of Cum/lea as justice of the peace. — The 4th section of the act " to incorporate the town of Camden in Wilcox county," (Session Acts, 1841, p. 54,) taken in connection with the act "to incorporate the town of Eutaw in Greene county," to which it refers, although it may not make the intendant of the town, ex officio, a justice of the peace, constitutes at least a valid foundation for a botva-fide claim of office by him; and if-he proceeds to per- form the duties of a justice of the peace, on the faith of his elec- tion as^ntendant, he is at least a justice de facto* 2. Estoppel ly bond. — The sureties on a bond, which recites that the pricipal obligor " has been duly elected intendant of the town of C, and is thereby made ex officio a justice of the peace," are es. 1 topped, when sued on the bond for the default of their principal. from alleging that he was not a justice of the peace; it appearing that he was at least a justice defacto, and received much business. as a justice on the faith and credit of the bond. 3. Validity and consideration of bond of officer de facto. — A bond, exe- cute; intendant of an incorporated town, with others as his sureties, which recites that, by virtue of his election as intendant, he " is thereby made ex officio a justice of the peace," and is con- ditioned for i lie faithful discharge of his duties as such justice, will be upheld a.s a common-law obligation, (although there is no law requiring the intendant to give bond,) when it appears that he was at least a justice de facto, and that the bond is supported by a sufficient consideration ; and if it was given for the purpose of pro- curing for the. intend ant patronage and business as a justice of the. peace, and he did receive patronage and business as a justice on the faith and credit of it, it is supported by a sufficient consideration. 4. Demurrer to complaint assigning good ami bad breaches. — In an ac- tion on a penal bond, if the complaint contains a single count, assigning several breaches, the insufficiency of one of the assign- ments is not a ground of demurrer to the entire complaint. OF ALABAMA. 207 Williamson & McArthuv v. Wool? et al. Appeal from the Circuit Court of "Wilcox. Tried before the Hon. Nat. Cook. This action was founded on a penal bond, executed by John D. Catlin, jr., (since deceased,) D. S. J. W.oolf, and J. A. Blakeney, dated the 7th June, 1854, payable to the State of Alabama, and conditioned as follows: " Whereas the above-bound John D. Catlin, jr., has been duly elected Intendant of the town of Camden in said county, and is thereby made, ex officio, justice of the peace; now, therefore, should the said Catlin well and truly do and perform all the duties which are, or may be, required of him by law as such intendant, or, ex officio, justice of the peace, then this obligation to be void," l s i. (June 7th, '.) until October Loth, 1855; that, during said period, rs claims, the property of plaintiffs, were placed in said^Catliu, ice of the p< mid, for suit and collection; and that the condi- tion of said bond 1 n broken by said Catlin, in this: that the said Catlin, as such justice of the peace 20 208 SUPREME COURT Williamson «fc McArthiir v. Woolf et al. ex officio as aforesaid, during the said time he was an act- ing justice of the peace ex officio as aforesaid, to-wit, be- tween the 7th June, 1854, and the 13th October, 1855, had and received officially and ministerially, for and on account of the plaintiffs, divers sums of money on the claims above mentioned, amounting in the whole to the sum of §665 78; and that he, the said Catlin, did not pay the said sum of money, or any part thereof,- to the said plaintiffs, or to any person or persons authorized to receive the same, but wholly failed, neglected, and re- fused so to do, to the damage of the plaintiffs as above stated." (The opinion of the court renders it unnecessary to set out the second assignment ot a breach.) " Plain- tiffs further say, that all the said sums of money collected by said Catlin, as above set out, were demanded of him before the commencement of this suit, to-wit, on or about the 11th Jul)', 1854, the 23d October, 1854, and the 29th December, 1855; and that said several sums of money, so collected by said Catlin, became and were due and owing from said Catlin as justice of the peace ex officious aforesaid, before the commencement of this suit, and be- fore the date of said demands, and are still in arrears and unpaid, contrary to the form and effect of said writing obligatory, and of the said condition thereof; by reason of which said breach of said writing obligatory, the same became forfeited; wherein- an action hath accrued to the said plaintiff, to have and demand of the said defendants the said sum above claimed, with the interest thereon." The defendants demurred to the complaint — "1st, be- cause said Catlin was not, by virtue of his office as inten- dant of the town of Camden, a justice of the peace, ex officio, for the county of Wilcox, and therefore said bond is contrary to law and void; 2d, because the intendantof the town of Camden was not, at the time said Catlin exe- cuted said bond with defendants, required, to give bond, and therefore said bond is without consideration and void; 3d, because the condition of said bond is insensible, uncertain, and therefore void ; 4th, because the complaint OF ALABAMA. 299 Williamson oud, it rtainly good at common law. The S wer, of all statutory provisions, to take a b SUPREME COURT Williamson & MeArthur v. Woolf et al. Df its officers, conditioned for the faithful dis- *e of his public duties; and the courts will lend their tance to indemnify parties who have been injured by the officer acting under such bond. — 5 Peters, 115; 3 Wheaton, 172: 1 Bailey, 211; 7 Conn. 543; 6 Binney, 292; Gilpin, 554: 1 Grcenl. 248; 5 Pick. 384; 15 How. (U. S.)304; 3 Cush. (Miss.) G25. 3. The allegations of the complaint show a sufficient consideration for the bond. — 1 Saunders' PI. k Ev. 1V5; Cbitty on Contracts, 30; Hester v. Keith, 1 Ala. 316; Gayle v. Martin, 3 Ala. 503; Whitsett v. Womack. 6 Ala. ; 5 Pick. 384. 4. Catliu having enjoyed the benefits arising from the bond, the defendants are estopped from alleging its inva- lidity.— Sprowl v. Lawrence, 33 Ala. 688; 8^Ala. 466;; 7 Ohio, 354; 2 liar. (Penn. St.) 83; 16 Mass. 102; 1 Rich. J. L. Thompson, with whom was Alex. White, contra. 1. The civil jurisdiction of a justice of the peace is an extraordinary power, and must be conferred by statute, it did not exist at common law. — Ellis v. White, 25 Ala. 540: Marshall v. Betner, 17 Ala. 836. A clause of reference in a statute em braces only the general j ovr* c-rs ami provisions of the statute referred to, and not its special and particular clauses. — Ex parte Greene & Gra- . 29 .Ala. 52: Stevenson v. O'Hara, 27 Ala. 362,; hews, Finley & Co. v. ;.Sands & Co., 29 Ala. 131 ; Dwarris on Statutes, 705. From these propositions it. -- ai'iiy follows, that the charter of the town of Cam- does not make the intendant, ex officio, a justice of the peace. -4ny other construction of the charter would make each member of the common council, equally with. intendant, a justice of the peace; and would authorize ■ to act in that capacity, not in Wilcox, but in Greene county. Moreover, the 8th section of the subsequent act to amend the charter of Camden, (Session Acts 1857-8, p. 225,i which expressly confers on the intendant the i powers of a justice of the peace, is a legislative construe- , OF ALABAMA. Williamson & Mc Arthur v. Wooli' ct al. tion of" the original charter, showing that it did not con- fer that power. 2. The complaint does not aver, that Catlin was ;; tice of the peace for Wilcox County; and if he was m fact a justice, by virtue of his election as intendant, there is no statute which required or authorized him to give bond. The provisions of the Code do not apply to the case, because his term of office, mode of '-election; are entirely different from those of justices of the peace under the Code, and are governed by a special statute which was passed before the adoption of the Code. 3. All the specified grounds of demurrer arc insisted on. R. W. WALKER, J.— [March 9,1861.]— We do not deem it necessary to determine, whether by the act "tp incorporate the town of Camden, in Wilcox county, - ' < Acts 1841, p. 54,) the intendant of the town is m ex officio, a justice of the peace. On that point, the law- may be conceded to be as the appellees contend ; and yet it would be of no avail to them in this suit. It is not always easy to determine what is necessary to constitute an officer de facto. The general definition is, that he is one who exercises the duties of an office, under color of an appointment or electiorJBb that office; ihi Lord Elleuborough, in the leading case on the subject, says, that an officer de facto "is one who has the reputa- tion of being the officer he assumes to be, and yet is not a good othcer in point of law." — The King v. The I poration of Bedford Level, r > Bast, 866, It is very clear, that the 4th section of the act to incorporate the town of Camden, when taken in connection with the art to which it refers, constitutes at least a valid foundation for a fide claim by the intendant of the town, to be justice of the poace; and if, ou the faith of his i as intendant, he proceeds to perform the duties of ju of the peace, he would not be considered a ha rper without claim or right. If not a mere Usurper, be v. be at least an offi . — People v. < 2 SUPREME COURT Williamson & McArthur v. Woolf et nl. 816; Jones v. i>cbee, 9 Mass. 281. It follows, that if the principal obligor in the bond was elected intendant of the town of Camden, and, on the authority of that election, assumed to act, and did act as a justice of the peace, lie became at least a justice de facto, if not dejure. This- being so, a bond executed by him, and conditioned for his faithful discharge of the duties of justice, will be upheld as a valid obligation; and those who have voluntarily bound themselves as his sureties, cannot absolve them- selves from liability by alleging that he was no justice. — Sprowl v. Lawrence, 33 Ala. 688, and authorities cited. [2.] The doctrine of estoppel has sometimes been as- sailed, as tending to defeat justice by excluding truth. But certainly no rule of the common law is better sup- ported by reason and sound policy, than that which de- clares, that when a man solemnly admits a fact, and the admission is acted upon, he shall not be heard to gainsay it, with a view of escaping from liability. The bond in. this case expressly declares, that Catlin "has been duly elected intendant of the town of Camden in said county, and is thereby made ex officio justice of the peace; " and the complaint avers, that Catlin performed the duties of the office of justice, and that on the faith and credit of thisbond he received " much patronage and business as a justice of the pcace^ By signing his bond, the defendants acknowledged him to be a justice of the peace, recom- mended him as such to the public, and agreed to be liable if he did not well and truly perform the duties of the office. They at least, whatever might be the case with others, will not be heard to say that, although they signed his bond, and there!)}- induced others to place claims in his hand<, still he was not in fact a justice of the peace. On that point "their mouths are shut." [3.] Even if it be true, that there was no law, re- quiring the intendant of the town of Camden to give bond; that would not affect the validity of the instru- ment, as a common-law obligation. — Sprowl v. Lawrence, 33 Ala. (392; Alston v. Alston, 34 Ala. 24-5, and authori- ties cited; Stephens v. Crawford, 1 Kelly, 582. The com- OF ALABAMA. 303 Hopkinson v. Shelton. plaint shows a sufficient consideration for the bond. — 34 Ala. 24. [4.] The complaint contained but a single count, as- signing several breaches. In such a case, the insufficiency of one of the breaches assigned is not a ground of de- murrer to the entire complaint. Hence, we need not in- •quire, whether the second breach was good. — Governor v. Wiley, 11 Ala. 172 ; Wilson v. Cantrell, 19 Ala. 642. The court erred in sustaining the demurrer. The judgment is, therefore, reversed, and cause remanded. HOPKINSON vs. SHELTON. [trover against shkkiff.] 1. Requisites qf plea. — It is no objection to a special pica, under our system of pleading, that it presents matter which is available un- der the general issue, which is also pleade L 2. Plea of former recovery. — A plea of former recovery must show that the cause of action in the two suits is the same. 3. Same; conclusiveness qf judgment as bar. — The reoovery of a judg- ment against a sheriff and liis sureties, in an action on hi* official bond, by two joint owners of a chattel, for his Wrongful acts in Boil- ing the entire interest in the chattel under execution against fine of the joint owners, and in making the sale at a place not author- ized > v law, is a bur to a subsequent action of trover against him, by the joint owner who was not a party to the process, lor the con- version arising from the wrongful sale of the entire interest ; and (he conclusiveness of the bar is not affected by the fact, that only nominal damages were recovered in that action ; nor by the further fact, that the action itself was not strictly maintainable. Appeal from the City Court of Mohile. Tried before the Hon. ALEX. MoKlNSTRY. Tnis action was broughl by C. B. Hopkinson, against Jame;T. Shelton, to recover damages ior the conversion 304 SUPREME COU RT . Hopkinson v, Shetton. of certain cattle, which tlie defendant, as sheriff of said county, had seized and sold under execution against one F. B. Sheppard. The defendant pleaded, 1st, the general issue; 2d, justification under the execution against Sheppard, averring that the cattle were the prop- erty of said Sheppard, and were liable to sale under the execution ; and, 3d, a special plea in the following words: "3. And for a further plea, defendant says, that said plaiirtiff ought not further to have or maintain his said action against him, because he says, that the said plain- tiff and F. 13. Sheppard instituted a suit, in their joint names, against this defendant, as sheriff, and his sureties on his official bond, on the same day this suit was brought, to recover damages for the defendant's selling the same cattle, for the conversion of which this suit is ' brought, under an execution, issued from the city court of Mobile, in favor of one W. R. Smith, against said Sheppard: and that at the present term of this court, to. wit, on the 28th March instant, said suit was tried, and a recovery was had against this defendant for the sale; thereof, and damages assessed against this defendant and'- his sureties, in favor of said pjaintiff and said Sheppard; and he avers, that this recovery was for the sale of the same cattle, for the conversion of which this suit is brought; which said recovery still remains of record, in full «forcc; and he pleads this recovery in bar of the fur- ther prosecution of this suit, and prays judgment," &c. The plaintiff took issue on the first plea, and demurred, to the others — 1st, because said second and third pleas are repugnant; 2d, because said second plea amounts to the general issue, as pleaded in the first plea; 3d, because, as to the third plea, it does not set out the record with sufficient certainty; 4th, because said third plea does not show that the suit, on which the recovery therein plead- ed was had, was" between the same parties; 5th, because it does not show that the cause of action for which this suit is brought, was, or could have been, tried in said for- mer suit; 6th, because it does not show that the cause of action in said former suit was the same as that on which OF ALABAMA. 305 Hopkinson v. Shelton. a recovery is sought in this action; 7th, because it does not show that the recovery sought tn this action was, or could have been, had in said former suit; 8th, because it does not show that the merits of this action were, or could have been, tried in said former action ; 9th, because it does not show that the judgment in the former suit has been satisfied; and, 10th, because it does not show what were the issues decided in the said former action." The court overruled the demurrer, and the plaintiff then replied nut tiel repord; and it was agreed, that any other appropriate special replication should be considered as filed, and that any special matter might be given in ev- idence. * On the trial, as the bill of exceptions shows, the plain- tiff proved the joint ownership of the cattle by himself and F. B. Sheppard, the levy of an execution on them by the defendant, as sheriff, against said Sheppard individ- ually, and the sale of them under said execution, on the 25th October, 1858, as the sole and separate property of Sheppard. The defendant then read in evidence the record of the former suit hroughtby the plaintiff and said Sheppard jointly, against the defendant and the sureties on his official bond, together with the bill of exceptions reserved by the plaint ills in that case, and the decision of the supreme court thereon rendered; "and it was admit- ted, that the same cattle constituted the subject-matter of botn suits." It was agreed, also, that the decision of the supreme court in the former case might be read from the printed report; ( 84 Ala. 652-59, ) as if incorporated in the bill of exceptions in this case. "This hr'mg all the evidence in the cause," the court charged the jury, at the instance of the defendant— "1st, that if they believe the cattle sued for are the same cattle for the sale of which the suit of Hopkinson & Sheppard v. Shelton 1 1 <>f. was brought, the record of which suit was read in evidence, then the plaintiff cannot recover; 2d, that if the cattle belonged to Hopkinson and Sheppard as partners, the suit of Hopkinson & Sheppard 9. Shelton d;;t MMOND, for appellant. Daruan cV Taylor, conl • A. J. WALKi;;:, C. J.— [March 22d, 1861.]— Under our system of pleading, which allows the filing of a plu- rality of pleas, it is no objection, that a special plea pre- sents matter of defense available under the general issue, which is also pleaded. — Dunham v. Riddle, 2 St. & P. 402; Code, § 2237; Pamphlet Acts of 1853-54, p. 60. The refusal of this court to reverse, on accouut of the OF ALABAMA. a07 Hopkinson v. Sholton. erroneous sustaining of a demurrer to a plea, where the general issue was pleaded, and the defense might have been made under it, is put, not upon (lie ground that the special plea was objectionable, but that no injury resulted from the erroneous action of the court. — Rogers v. Bra- zeale, 34 Ala. 512. There is a common-law rule, "-that where a plea amounts to the general issue, it should be so pleaded;" but it is probable that the enforcement of that rule was discretionary with the court. — Stephens on Fl. 419-422, eh. 2, § 6. It was no valid objection to the second plea, that it amounted to the general issue. [2.] The third plea, setting up a former recovery, does not show that the cause of action in the two suits was the same. The cause of action in this case, is the con- version of the cattle mentioned. The cause of action, alleged to have been the basis of the former recovery, is the sale of the same cattle by the defendant as sheriff. It is not averred, that the conversion, for which this suit wa- brought, was identical with the sale, for which the other suit was brought. There may have been an actiona- ble conversion altogether distinct from the sale. The court erred in overruling the demurrer to this plea. [:>.] The main question before us is, whether the re- covery of nominal d;i in the case of Hopkinson and Sheppard v. Shelton, (the decision of which in this court ported, under the title of Sheppard v. Shelton, in 84 Ala. p. 652,) 18 a bar to this suit, when it is shown that the conversion i f attle for which this suit is brought was ted by the levy upon the same by the defendant, as sheriff, under fieri facial against Shcppard alone, and the subsequent sale of the same under the execution; and that such sale was tin- sale for the making of which the former suit was brought by the plaintiff and Sheppard, they being joint owners of the cattle. To determine this question, it is ne< essary to ascertain whaf ir- the cause of a tioi in this -nit. The sheriff, having an < qution against Sheppard alone, had authority to lev lot property ■>!' the defendant in execution and the plaintiff in this ease, ami to hold $ 308 SUPREME COURT Hopkinson v. Shelton. possession of the same until the sale. — Andrews v. Keith, 34 Ala. 722; Mo^re v. Sample, 3 Ala. 311); Winston v. Ewhig, 1 Ala. 120. The cause of action in this case, therefore, is not a conversion produced by the levy, taking and retaining of the property up to the sale. The sheriff's conduct was legal, up to the time of sale. A sale of the entire property, under an execution against one of the joint owners, would render the sheriff a trespasser as to the joint owner who was not a defendant in the execu- tion ; and this is the cause of action, which would accrue to the plaintiff, upon the facts stated in the question above propounded. — Sheppard v. Shelton, 34 Ala. 652; Smyth v. Tankersley, 20 Ala. 212. If the wrongful sale of the property was the cause of action in the former suit, and a recovery was thereupon had, it is a bar to this suit. It can make no difference, that the form of action was differeut. — Starkie on Ev., part 2, p. 198; Tarleton k Pollard v. Johnson, 25 Ala. 300; Langdon v. Railord, 20 Ala. 532. Nor does it affect the question, that, in strictness of law, the plaintiff 's right could not have been properly adjudicated in the former action, if it was in fact set up and passed upon, in a court of competent jurisdiction, at the plaintiff's instance. Tarleton k Pollard v. Johnson, supra. Nor does it make the former suit less effective as a bar, that in it the court, by an erroneous ruling, diminished the plaintiff's recovery down to merely nominal damages. — Smith v. Whiting, 11 Mass. 445; Planter v. Best, 11 Johns. R. 530; Philips v. Berick, lb' Johns. R. 136; Brockway v. Kinney, 2 ib. 210. The cause of action in the former suit was the sale of the entire property in the cattle, by virtue of process against one of the owners, and at a place not authorized by law. The charge of the court authorized a finding by the jury of the damage resulting from such sale, but re- quired a deduction from the damage of so much of the proceeds of sale as was paid over on the execution by the sheriff; and instructed the jury, that, if the property sold for as much as it would have sold for at a place pre- OF ALABAMA. 309 Hopkinson v. Shelton. scribed by law, ami the proceeds of the sale were all paid over on the execution, then they must find nominal damages for the plaintiff. The jury found nominal damages. The court also refused to separate Hopkinson's interest from, that of the defendant in execution, and allow a recovery of his damages. We think, that the plaintiffs damages, resulting from the sale, alleged to have been wrongful for the two reasons — that the entire property was sold under an execution against one owner, and that the sale was at a wrong place, — were considered and adjudicated ; and that, under the charge, those dam- ages were reduced to a nominal amount, because the propei ty sold for its value, and the proceeds of the sale wore paid over on the execution. The plaintiff cannot again have his claim for damages on account of the wrongful sale adjudicated; and it this suit be for the same sale, it is barred by the former judgment. And upon the principles stated above, this case is «ot relieved from the bar, because the form of action in the former suit was different : nor because the action was not, in strictness of law, maintainable; nor because the court, in the former erroneously ruled, that the plaintiff's damages were subject to reduction to a nominal sum. # We i \ adopted what" we conceive to be the ]>rima- trnction of the record in the fornier suit. Wedo not consider, for we do not think it necessary, whether parol proof would be admissible to show that, in fact, the subject-matter of this suit was not adjudicated. We do not deem i: iry to decide any other ques- tion in tl Judgment reversed, and cause remanded. -310 SUPREME COURT Beene's Adm'r v. Phillips, Groldeby & Sieving. BEENE^S ADM'R vs. PHILLIPS, GOLDSBY & B LEVINS. [CONTEST EETWEfcX ruEnlTGK ASD ADMlXlsTfcAtOft OF INSOLVENT EST.STE.] I. What constitutes sufficient filing of claim.— A claim against an insol- vent estate, or the affidavit verifying it, must be regarded as filed^ within the meaning of the statute, (Code, \ 1847,) when it is de- livered to the probate judge, or to his acting clerk, in his office, to be placed and kept on file ; but merely placing it in the office, not with the proper file of papers belonging to the estate, and without bringing it to the notice of the judge or his clerk, is not a sufficient filing. « Appeal from the Probate Court of Dallas. • Ix the matter of the estate of Benjamin Y. Beene, de- ceased, which was declared insolvent on the 12th April, 1858; and against which the appellees filed a claim, on the 22d November, l8o8, The administrator filed a written objection to the allowance of this claim, "on the ground that the same had not been verified in the time and manner required by law;" and an issue was formed on this objection. On the trial, as appears from the bill of exceptions, the plaintiffs produced an affidavit of the justice and non-payment of their claim, made before a justice of the peace, on the 16th December, 1858; and proved by one Roberts, who was the acting clerk in the office of the probate jud,ge, "that some time after the time for filing claims against said estate had expired, to- wit, after the lapse of nine months from the declaration of insolvency, plaintiffs' attorney came into the office of the probate judge, and reipicsted witness to. look and sec whether there was any affidavit to said claim ; that they both looked in a box, in which all claims against insolvent estates were kept, and said attorney there found the affi- davit above mentioned, but not in the file of papers be- longing to said estate ; and that lie (witness) had never OF ALABAMA. 311 Wood v. Barker. before seen said affidavit. Said affidavit was not marked filed : nor was there any evidence that tho attention of the probate judge, or of any one acting for him, had ever been called to it; nor was any other evidence offered in relation to the riling of said affidavit, or the verification of said claim. This being all the evidence, the court overruled the objection of the administrator, and allowed said claini; to which said administrator excepted." and which he now assigns as error. White & Portis, for appellant. Jas. Q. Smith, and Jno. T. Morgan, contra. STONE, J.— [Feb. 26, 1861.]— A claim and its verifi- cation, delivered to'the judge of probate, or to his acting clerk, in his office, to be placed and kept on tile, must be regarded as "filed" within the meaning of section 1847 of the Code. Merely placing such paper in the office, not with the proper file of papers belonging to the particular estate, and without bringing such paper to the notice of the judge or his clerk, would not be a filing within the spirit of the statute. The evidence before the probate court, without more, docs not prove that the affidavit verifying the claim in this ease, was //Win the office of the probate court withiu the time allowed by law. • Reversed and remanded. Wool' -UKKK. [ATTiriS OS ATT.W'IMI \T BOND, FOR DA Hi 1. Mdl -.— In nn action on an rut ichment bond, if the attachment waa no! vexatiovu endant i n KjJ tint tl mated by 3T2 SUPREME COURT Wood v. Barker. , ■_ , : ♦ malice towards a third person, who, though a joint obligor with the > defendant in attachment, was not a party to the process, affords no ground for the recovery of vindictive damages. 2. Admissibility of declarations," as pari of res gestce. — The declarations of the piaintiffin attachment, to his attorney, as to his reasons for suing out the process, made at the time of suing out the writ, are admissible evidence, in an action on the attachment bond, as a part of the ree aestcc. to evidence. — A general objection to evidence, a part of which is admissible, may be overruled entirely., Appeal from the Circuit Court of Dallas. Tried before the Hon. Nat. Cook. This action was brought by William Wood, against Stephen B. Barker and others, the sureties of said Bar- ker; and was founded on an attachment bond, executed by the defendants, in a suit previously brought by said Barker against the piaintiffin this suit. The attachment bond was conditioned as the statute prescribes. The breaches alleged in the complaint were — 1st, that .the at- tachment was not prosecuted to effect, but was dismissed b} r the plaintiff therein ; 2d, that said attachment was wrongfully sued out; and, 3d, that said attachment was vexatiously sued out. Issue was joined, as the bill of exceptions states, "on each breach of the plaintiff's com- plaint." On the trial, after the plaintiff had proved the issue of the attachment, its levy by service of garnish- ment, and the dismissal of the attachment suit, in vaca- tion, before the commencement of this suit, — "he offered one Gibson as a witness, who was a joint obligor with Lim on the note which was the foundation of the attach- ment-suit, and offered to prove by him, that said Barker told him (witness), after said attachment was sued out, that he sued out said attachment to vex and harass him (witness), and to injure him in his standing in the com- munity, because he had refused to go security for said Barker on a replevy bond. The court refused to allow the witness to prove said Barker's declarations to him, and the plaintiff excepted." The defendant introduced as a witness one of his attorneys in the attachment suit, OF ALABAMA. 313 Wood v. Barker. •"by whom he proposed to prove his reasons for suing out said attachment, as stated at the time to said attorney, and the reason why the attachment suit was dismissed. The plaintiff objected to this evidence, but the court over- ruled the objection. The witness testified, that the de- fendant's reason for suing out said attachment, as stated to him at the time, was, that the plaintiff had deceived him as to his ability to pay, and he was afraid that Gibson alone was not able to pay the debt; and that the attach- ment suit was dismissed, by his advice, because the affida- vit on which it was founded was defective." The plaintiff objected to this evidence, and reserved an exception to the overruling of his objection. The several rulings of the court on the evidence, to which exceptions were re- served, are now assigned as error. Geo. W. Gayle, for appellant. Tiios. H. Lewis, contra. R. W. WALKER, J.— [.July 24, I860.]— If the attach- ment was not vexatious as against the defendant himself the fact that the attaching creditor was actuated by malice against some third person, not a part} 7 to the .process, affords no ground for the recovery of vindictive damages in this suit. [2-3.] A part of the testimony of the witness Williams consisted of the declarations which the defendant made at the time the attachment was issued, as to his reasons for having it issued. These declarations were admissible as part of the res gestae. — Pitts v. Burroughs, 6 Ala. 735-6,. and cases cited; Dearing v. Moore, 26 Ala. 590; Sanford : v. Howard, 29 Ala. 695. The exception taken was to the- admission of the whole of the witness' evidence; and, as part of it was admissible, this court will not reverse, even if other portions of it were illegal. On that point, how- ever, it is not necessary for us to express an opinion. Judgment affirmed. 21 314 SU PREME COURT Kannady v. La'ubert. KANNADY vs. LAMBERT. [action on promissory note, by endorsee against maker.] 1. Error without injury in sustaining demurrer to special plea. — The sustaining of a demurrer to a special plea, if erroneous, is not available to the defendant, when the record shows that he had the full benefit of the same defense under the general issue. 2. What is available under general issue. — In an action on a note given for the purchase-money of land, a promise, by the vendor to cancel and destroy the note, in consideration of the fact that the land was subject to overflow, when he had represented that it was not, is available as a defense under the plea of the general issue ; but the vendor's misrepresentations as to any material matter, which constituted an inducement to the purchase, and on which the purchaser relied, is only available under a special plea of set-off, by virtue of section 22-10 of the Code. 3. Pica of fraud. — In an "action on a note given for the purchase- money of land, a special plea, averring the vendor's misrepresenta- tion as to a material matter, and consequent injury to the purchasers but containing' no averment that such misrepresentation misled the purchaser, or constituted an inducement to the purchase, or was relied on by him, tails to make out a case of fraud. Appeal from the Circuit Court of Coosa. Tried before the Hon. Porter King. This action was brought by John M. Lambert, against A. T. Kannady; and was founded on the defendant's promissory note, of which the following is a copy: " $1100. On or before the 1st January, 1858, 1 promise to pay Samuel Lambert, or bearer, the sum of eleven hundred dollars; to be paid in cotton, at eight cents per pound the crop round, on the plantation, or at the near- est convenient e:in, for value received of him this 15th November, 1855; being for land — south half of section twelve, township twenty-four, range eighteen; with in- terest from 1st January, 1856." "A. T. Kannady." !2 ■ ■ OF ALABAMA. 315 • Kannady v. Lambert. The defendant pleaded — 1st, that the plaintiff was not the party really interested in the suit; 2d, the statute of limitations of six years; 3d. the general issue; and, 4th, a special plea in these words: "Defendant denies each and every allegation in said declaration contained, and avers, that said note was given for the purchase-moi; the south half of section twelve, township twenty -four, range eighteen; that Samuel Lambert, the payee of said note, represented to defendant, at the time of said pur- chase, that no part of said lands overflowed,' when in fact a great portion of said lands did overflow, and said Lam- bert well knew that fact; and that said defendant was thereby greatly damaged, to more than the amount of said note. And defendant avers, that afterwards," &c, "before the transfer of said note, defendant offered to rescind said contract, and to give up said land to Samuel Lambert; and that said Samuel Lambert declined and refused to rescind said contract, butfproraised and agreed with said defendant, in consideration of the fact that said land did overflow, and of his false representations as aforesaid, to allow him a deduction on the purchase- money of said land, amounting to the entire sum of said note, and further agreed to give up, caneel and destroy said note." To this special plea the plaintiff demurred, on the following specified grounds: " 1st, because plea docs not show that said defendant was induced to purchase on account of said alleged false represei' 2d, because said plea purports to answer the whole * of action, and concludes to a part only; 3d, because if is argumentative; 4th, because it is double; and, oth, he- cause it is repugnant, and contains matter that is sur- plusage." The court sustained the demurrer, and tiie cause was tried on issue joined on the other pie; The sustaining of the demurrer to the 4th plea is here error, together with the rulings of the court on the evidence, and in the charges to the jury. L. E. Parsons, for the appellant. X. S, Graham, contra. 816 SUPREME COURT Kfinnady v. Lambert. A. J. WALKER, C. J.— [July 4, I860.]— The fourth plea first denies all the allegations *i-k But the language of the Code (§ 2358) is materially different from that of tlie former statute. Here is an act <»f a judicial officer of the State, done in his official capacity, but at what time docs not appear; if done within a certain time, it was a mat- if official duty, the refusal to perform which was a misdemeanor, (Code, § -■'I"' 1 ';) if done afterwards, it was a 320 SUPREME COURT Onion India Rubber Company v. Mitchell. plain violation of his official duty. Under these circum- stances, this court must presume that the officer per- formed his duty, and not that he violated it. — 4 Phil. Ev\ (C. & H. Notes,) 459-61. Jno. T. Morgan, contra, insisted that the bill of excep- tions could not be regarded as a part of the record, and cited the following cases: Wood v. Brown, 8 Ala. 563; Kitchen v. Moye, 17 Ala. 143, 394; Haden v. Brown r 22 Ala. 572; Murrah v. Br. Bank at Decatur, 20 Ala, 392. STONE, J.— [Feb 13, 1861.]— The bill of exceptions found in this record is without date; and the record con- tains no evidence that it was signed in term time, or within ten days afterwards, pursuaut to written consent of the parties for that purpose. — Code, § 2358. A motion has been made to exclude the bill of exceptions; and under these circumstances, a majority of the court holds, that the exceptions cannot be regarded as a part of the record. — Kitchen v. Moye, 17 Ala. 143; Haden v. Brown, 22 Ala. 572; Cox v. Whitfield, 18 Ala. 738. [2.] The bill of exceptions being excluded, the case is brought down to narrow limits. On an issue between the plaintiff and transferree, the jury have affirmed the validity of the transfer; and the court thereupon dis- charged the garnishee. Whether the court correctly ruled on the subject of the garnishee's right of set-off, we need not inquire, as that is a subject which docs not concern the present appellant. If, therefore, the court committed any error, (which we do not decide,) it was an error to the prejudice alone of the transferree; and he alone would be heard to complain of it, in a contest be- tween those parties. Judgment affirmed. OF ALABAMA. 321 Bums v. Hudson. BURNS vs. HUDSON. [bill in equity by FKME COVKKT, for recovery of slaves, as fart of SKTAKATE ESTATE, WITH ACCOUNT OF HIKB, 4C.J 1. Husband's marital rights in rttuf to wife's personalty. — Prior to the adoption of the statutes of this State securing to married women their separate estates, if a slave was given by a father to his mar- ried daughter, or was purchased by the daughter at the adminis- trator's sale of her father's estate, and was not in either case set- tled to her separate use, the husband's marital rights attached, and the slave became his absolute property. 2. Variance between allegations and ptoof. — The bill alleged, that the slave in controversy, in which the complainant claimed a separate estate under a contract between her husband and one J., was sold, conveyed, and delivered by her husband to said J., iij consideration of the hitter's agreement to become surety for him in a certain law-suit, and to pay whatever judgment might be recovered against him ; " and that whatever might be left of the value of the negro, and her hire, after satisfying the judgment that might be recovered against B. (the husband), and the girl herself, if she was not taken to satisfy the judgment, J. was to convey to, and settle upon com- plainant, in her own right, and as her own sole and separate estate, and to her hairs." The proof was. that B. delivered the slave to J. to indemnify him against his liability as surety for the costs o 1 the law-suit, "upon condition that, if the suit should go against B.' the negro was to be sold, and the proceeds of sale to be first applied to the payment of the costs of the suit, if necessary, and the resi- due, if any, to be paid over to the complainant ; but, in the event that B. gained the suit, the negro was to be put in the possession of tue complainant, as her own and separate property, and J. was to transfer to her all the title, interest and claim that he had to the negro, for her separate ose and benefit." //< let, that there was a fatal variance between the allegations and proof. So, where the bill alleged, that J., in pursuance of his previous contra t with B., verbajU* •old' and delivered the slave to. the complainant, as hi .ration of her promise to secure and indemnify him against his liability as Buret/ for B. in the law-suit; while the proof only showed, thatheda- livered the slave to her, and said that he made no further claim to the slave, — the vanai, ,d fatal. 4. Sanu.So, where th<- bill alleged, that the complainant afterwards delivered the slave to the defendant, upon his promise and agree- 322 SUPREME COURT Burns v. Hudson. ment to indemnify J. against his liability as surety for B..to satis- fy whatever judgment might be recovered against B., to keep the slave hired out at a specified price, to return her to the complain- ant after it was ascertained What lie had to pay on the judgment against B„ if the negro was not taken to satisfy the judgment, and to account for her hire; while tin- proof showed, that the defend* ants agreement was to take the place of J. as surety for B„ and to dispose of the slave, at the termination of the suit, in like man- ner as J. was to have disposed of her under his agreement with B., as above stated, — the variance was held fatal. 5. Dismissal without prejudice. — The complainant in this case being a married woman, suing by her next friend, and there being a fatal variance between the allegations and proof, the bill was dismissed without prejudice. Appeal from the Chancery Court of Calhoun. Hoard before the Hon. James B. Clakk. The bill in, this case was filed by Mrs. Mahulda Burns, the wife of A. S. Burns, suing by her next friend, against SannK-1 P. Hudson and the said A. S. Burns; and sought a recovery of certain slavves in the possession of Hudson, in which the complainant claimed a separate estate, with an account of their hire. The complainant asserted title to the slaves under a verbal gift from her father, in South Carolina, in 1831, of the female slave who vVas the moth- er of all the others; a subsequent purchase of said slave at the administrator's sale of her father's estate, in South Carolina, prior to the year 1840; a verbal contract between her said husband and one John P. Jennings, made some time during the year 1842 or 1843, by which Jennings obtained the possession of said slave; a subsequent verbal contract between Jennings and herself, by which she ob- tained the possession of the slave; and a verbal contract, of later date, between herself and the defendant Hudson, under which she delivered fhe slave to him. The defend- ant Hudson denied the title asserted by the complainant, and claimed title in himself under a purchase from said Jennings and A. S. Burns, made in the presence, and with the consent of the complainant. The material alle- gations of the bill, and the substance of the evidence, are stated in the opinion of the court. On fiual hearing, on OF ALABAMA. 323 Burns v. Hudson. pleadings and proof, the chancellor dismissed the bill ; and his decree is now assigned as error. '©■ Joiin White, for the appellant. G. C. Wiiatley, contra, R. W. WALKER, J.— [July 4, I860.]— There is no doubt that, when the contract was made between A. S. Burns and John B. Jennings, the negro girl Lucy was the property of the former; for, whether we consider the original source of title, as a gift from Mrs. Burns' father to her, or as her purchase at the administration sale, it is plain that, as the slave was in no way settled to the sepa- rate use of the wife, the marital rights of her husband attached, and the property became his absolutely. [2.] If, then, Mrs. Burns has now a separate estate in the slave, or can justly claim a settlement of the same to her separate use, she must deduce her right from the transactions with John B. Jennings, or from the subse- quent contract with the defendant. However well found- ed such a claim may be in point of fact, it can be of no avail to the complainant in this suit; for the reason, that the allegations and proof, in reference to the matters which form the foundation of her title to relief, if she has any, do not correspond. The amended bill alleges, that the cdtaplainaht's hus- band, being engaged in a law-suit, or law-suits, with one Ilindman, sold, conveyed, and delivered the girl Lucy to John B. Jennings; and that Jennings, as a consideration therefor, contracted and agreed to become surety for Burns in said suit, or suits, in some way, and to pay whatever might be i I againt Burns; and wha might be left of the value of the negro, and her hire, after sal* isjying the judgments (hat might be recovered against B\ ami thi girl ' , imt taken to satisfy the judg- ments, Jennings w vey to and settle upon complai in fa r oicn right, and as h. r oivn sole and separa . and ■ heirs. The only evidence in relation to the contract between Burns and John B. Jennings, is the testimony of 324 SUPREME COURT Burns v. Hudson. William M. Jennings, the son of John B., who eta that his father became surety for Burns, tor costs, in a law-suit between Burns and one Hindman ; and that to indemnify Jennings, Burns delivered the negro Lucy into his possession, upon condition, that if the suit should go against Burns, the negro wis to be sold, and the proceeds of the sale first applied to the payment of the costs of the suit, if necessary, and the residue, if any, to be paid over to the com- plainant; in the event, however, that Burns gained the suit, the negro icas to be put in the possession of the complainant, as Iter own and separate properly, and Jennings was to transfer to her ad the title, interest, and claim that he had to the negro, for her separate use and benefit. [3.] The bill further alleges, that in 1843 Jennings, by a verbal contract, sold and delivered the negro Lucy to complainant, as her separate estate, and to her heirs, in pursuance of his previous contract with Burns, in consideration of the promise of complainant "to secure and indemnify, and cause to be secured and indemnified, the said Jennings against all loss and liability, as surety for Burns in the suit or suits above-named." The only evidence introduced to support this allegation, is the tes- timony of Win. M. Jennings and Mrs. Cowart. The first-named witness states, that on a particular occasion in 1843, and in the presence of the defendant, Mrs. Cow- art, and the witness himself, John B. Jennings remarked, that defendant was willing to take his place as surety, and asked the complainant if she was willing; to which she gave her assent. Jennings then said to her, "There is your negro woman ; take her, and dispose of her as you choose." Mrs. Cowart says, that Jennings remarked to the complainant, that he now delivered her negro girl to her, and made no further claim to her. There is no evidence of an agreement, on the part of the complain- ant, to secure Jennings against loss as surety for Burns, which is the alleged consideration for the transfer; nor is anything said as to a delivery to the separate use of the complainant. Certainly, the transaction, as proved, was OF ALABAMA. 325 Burns v. Hudson. not an execution of the original contract between Burns and Jennings. [4.] The bill farther alleges, that upon the same day on which Jennings delivered the girl to complainant, or shortly thereafter, the complainant. and defendant made a contract, by which the complainant agreed to, and did, deliver the negro Lucy to the defendant, and the defend- ant agreed to secure and indemnify Jenning as surety for Burns, and to pay and satisfy whatever judgments might be recovered against Burns; "that to make him safe in so doing, he would take the girl into his posses- sion — that he would keep her hired, at some good house, at six dollars per month; that he would return the girl to complainant, after it was ascertained what he would have to pay on whatever judgments might be recovered against Burns in said cases in order to save Jeunings harmless, if said negro was not taken to satisfy the judg- ments that might be recovered therein; and upon that agreement, and that he would also account to complain- ant for the hire of said girl, the defendant took possession of said girl." The only proof to sustain this allegation, is the testimony of the same witness, J. M. Jennings, who states, that he delivered the negro to Hudson, for complainant; and that the slave was to be disposed of in the hands of Hudson, at the termination of the law-suit between Burns and Hindman, in like manner as she was to have been by John B. Jenni ngs. lie further states, that it w. od, that Hudson should take the place of Jenuings as surety, and become liable in like manner as Jen, row, looking to the testimony of the same wit- rtain the manner in which thegirl was to have 1 »ni disposed of by Jennings at the termination of the suit ••ecu Barns and Hindman, we find that the agreement Was, that "if the -nit should go against Burns, the ne- gro was to be sold, and the proceeds of the sale first ap- I to the payment of the costs of the suit, if necessary, and the i if any, to be paid over to complainaut. In the oven! that Burn- gained the suit, the negro was to ill in the of complainant, as her separate I BFPREME COURT Burns v. Hudson. property-" The difference between this contract, and that which the complainant alleges she made with Hud- eon, is obvious. It is evident from this review of the allegations of the bill, and the evidence adduced in support Of them, that in regard to each*one of the successive transactions through which the complainant seeks to deduce her claim to relief — the original contract between Burns and Jen- nings, the subsequent transfer of the slave by Jeunings to the complainant, and the contract between the com- plainant and defendant — the case as stated is not the case which is proved. Consequently, there was no error in dismissing the bill. [5.] The evidence, however, does, as we have seen, tend to show that the defendant obtained possession of the ne- gro under an agreement that he should take in all respects the place of Jennings — that is, that he was to become bound for Burns in like manner as Jennings had been; and that, at the termination of the law-suits, he would make the same disposition of the negro which, by his contract with Burns, Jennings had agreed to make. Without in any manner committing ourselves to the va- lidity of any claim which complainant may assert as growing out of these facts, we think that, under all the circumstances of the case as disclosed by the record, it is proper that the bill should be dismissed without preju- dice. Accordingly, the decree of the chancellor is re- versed, and a decree here rendered, dismissing the bill without prejudice. — Danforth v. Herbert, 33 Ala. 499; Singleton v. Gayle, 8 Porter, 270; Cameron v. Abbott, 30 Ala. 419; Lang v. Waring, 25 Ala. 625; Edwards v. Edwards, 30 Ala. 394. The complainant's next friend must pay the costs, both of this court, and of the court below. A. J. Walker, C. J., not sitting. OF ALABAMA. . 327 Bush and Wife v. Cunningham's Executors. BUSH and WIFE v*. CUNNINGHAM'S EXECUTORS. [PROCEBBINQ BEFORE PROBATE COURT FOR RECOVERY OF LEGACY.] 1. Bequest to creditor, with direction far deduction of debt from legacy. — Where the testator, after making certain specific bequests to his wife, directe I that the residue of his property, both real and per- sonal, should be divided into three equal parts, bequeathed one of these parts to the children of a deceased br ither, and added to the bequest these wot Is: " but the amount I now am indebted to them is detiucted,"—Iield, that this clause did not impose upon the children an abandonment of their debts against the estate, as a condition upon which they should take the legacy, but only required a de- duction of the debts firem the legacy ; that in making this deduc- tion, the ag'gregate amount of the debts must be subtracted from the p entire legacy to the children collectively; and that the amount to which the children were entitled under the bequest must be sac irtained as in cases where property is brought into hotchpot — that is to say, after deducting the sp< cine bequests to the widow, the amount of the debts due to the children must he hist added to general residnum of the nd then deducted from- one- third of that amount. 2. Burden t>f proof. — In a proceeding before the probate court, after the expiration of eighteen months from the grant of letters testa- mentary, for the recovery of a residuary legacy, from which is to be deducted, by the terms of the Inquest, a debt due from the tes- tator to the legatee, it is incumbent on the legatee, and not he i haueery court alone can , :mi election for them, and is, therefore, the appropriate forum for the setth m n( ol tainment of tie 328 SUPREME COURT Bush and Wife v Cunningham's Executors. Appeal from the Probate Court of Talladega. In the matter of the estate of John H. Cunningham, deceased, on the petition of A. C. Bush and Mar)-, his wife, (formerly Mary Cunningham,) D. F. Shuford and Cynthia, his wife, (formerly Cynthia Cunningham,) John B. Cunningham and Victoria Cunningham, for the re- covery of a legacy, which they claimed under the second clause of the will of said John II. Cunningham, deceased, which, after making several specific bequests to the said testator's wife, was in the following words: "The re- maining portion of my estate, both real and personal, not bequeathed, is to be in three equal parts; W. J. Cun- ningham istohave onethird ; James ZH. Montgomery, Julia Jackson, and E valine Lane, one third ; and the other third to my brother's, Ansel Cunningham, deceased, children ; but the amoir.it I now am indebted to them is deducted, both real and personal." The plaintiffs claimed as chil- dren of said Ansel Cunningham, deceased, and filed their petition after the lapse of eighteen months from the grant of letters testamentary. The executors, who were made defendants to the proceeding, "pleaded the general issue, with leave to give in evidence auy special matter which might be pleaded in bar, and with like leave to the petitioners in reply." On the heating of the petition, the plaintiffs read in evidence the will of the testator, with its probate, the inventory, sale-bill of a portion of the personal property, and allotment of the slaves by commissioners under an order of the court; and proved the solvency of the es- tate. "The defendants then offered to prove, that said John II. Cunningham, the testator, was the executor of his father, who, by his will, left his real estate to his widow for lite, and after her death it was to be equally divided among his children, seven in number, one of whom was said Ansel Cunningham, the lather of the pe- titioners: that said John II., before the death of his father's widow, purchased all the interests, except that of said Ansel Cunningham, aud that of W. J. Cunningham, OF ALABAMA. 329 Bush and Wife v. Cunningham's Executors. one of the defendants in this proceeding; that he afterwards purchased the share of said W. J. Cunningham; that he sold said laud after the death of the widow, and made a fee-simple deed for the whole tract, with covenants of war- ranty to protect the title; that [this was done after the death of said Ansel Cunningham, and with the consent of his widow and such of his children as were of full age, — he, the said John II., to pay them one-seventh of the amount for which he sold it; that he did this as fast as the children cameof age, and also paid to the widow of said Ansel the share to which she was entitled under the laws of Georgia." The plaintiffs objected to this evidence, as illegal and irrelevant; the court over- ruled their objections, and they excepted. The defend- ants offered to prove, also, "that the said John II. Cun- ningham was also the executor of his mother, who, at her death in 1851-2, bequeathed $1200 to the children of said Ansel Cunningham; and that the said John II., up to the time of his death, paid all the said children, as they came of age, their respective shares of this legacy," This evidence the court admitted, 'against the objection of the petitioners, and they excepted. It was admitted that the names, ages, &c, of all the parties, were correctly stated in the petition; that all of the petitioners were of foil age When" the petition was filed; that two of them were under the age of twenty-one when the testator died, and that he had never paid either of these two anything on account of his indebtedness to them. The other chil- dren of said Ansel Cunningham, who were not before the court as parties, were alleged in the petition to be under the age of twenty-one years. This being all the evidence, (except some parol testimony a? bo the testator's instructions to the person who wrote the will, which re- quires no particular notice,) the court dismissed the peti- tion, and lhe petitioners excepted. The decree of the court, and its rulings on the evidence, are now assigned as error. Jas. B. Martin, for appellants. 22 330 SUPREME COURT Bush and Wife v. Cunningham's Executors. L. E. Parsons, and Jxo. White, contra. A. J. WALKER, C. J.— [July 3, I860.]— The clause subjoined to the bequest to the children of xVnsel Cun- ningham — "but the amount I now am indebted to them is deducted, both real and personal " — does not exempt the testator's estate from the payment of the debts due to the children of Ansel Cunningham, or impose upon them the abandonment of those debts as a condition upon which they, should take the legacy. Its entire effect is to require a deduction from the legacy of the amount of the debts. If it required an abandonment of the debts, there would be a loss of the debts to those children, as well as a deduction of the amount. The children have a right to collect the debts from the estate; but, in ascertaining their legacy, there is to be a deduction of the amount of the debts. We understand the clause to require that a deduction from the entire legacy of the children collect- ively is ta be made of the gross or aggregate amount of the indebtedness, and not that there is to be a deduction from the several shares of the respective children of the distiuct amounts which may be due them separately. The deduction is evidently made a common burden upon all the children. In ascertaining the legacy to be divided among the children of Ansel Cunningham, the following is the plan to be pursued: After the satisfaction of the debts and expenses aad costs of administration, the bequests to the widow must be taken out; then, to the residuum must be added the amount of the testator's indebtedness to the children of Ansel Cunningham, and the residuum thus increased must be divided into three equal parts ; of these three parts, one must be assigned to Wm. J. Cunningham, one to James M. Montgomery, Julia Jackson, and Evaline Lane, to be equally divided between them; and the remaining third, after deducting the amount of the indebtedness before added to the residuum, must be equally divided among the children of Ansel Cunningham. The indebtedness to the children of Ansel OF ALABAMA. 331 Bush and Wife v. Cunningham's Executors. Cunningham must be brought into hotchpot; otherwise, there would be a balance not distributed under the will, — a result which it was evidently the purpose of the testa- tor to avoid. This will be apparent upon making a re- view of the process ot distribution upon a different plan. Let the actual residuum, after the deduction of the widow's legacy, be divided into three equal parts, and then let a sum equal to the indebtedness to Ansel Cunningham's children be deducted from their share, and there would be au intestacy as to the sum deducted. This result, which is inconsistent with the testator's intention, is avoided by adding the amount to be deducted to the residuum to be divided into three equal parts. From this exposition of the plan of calculation to be adopted it bcomes clear, that proof as to the amount of the testator's indebtedness to the children of Ansel Cunningham is indispensable to the ascertain- ment of their distributive share; and it is totally impos- sible to determine what is the distributive share of those children, or any one or more of them, without such proof ; and it is equally impossible to determine, in the absence of such proof, whether the probate judge could, with v to the estate, decree to them, in advance of a final settlement, any definite amount on account ot their lega- cies; for it may be that the aggregate amount of the in- debtedness will absorb the legacy. ['2.] It was shown that the testator was indebted to the above-named children on two accounts; but as to the amount of indebtedness on one account there was no proof. The onus of making that proof was upon th< titioners. The amount of the indebtedness was a matter which we must presume to have been as much within the knowledge of the petitioners, as of th It was not defensive mat ■ brought forward by the executors. It was an element to be affirmative side red in ascertaining whether the petitioners were en- titled to the decree sought. Under section i ,"." devolved upon the petitioners to show that they were legatees, and ftiat after the payment to them of some 332 SUPREME COURT Tillman v. Chadwiek. amount there would be a sufficiency of assets to pay all tlic debts, charges, and other legacies entitled to priority. This, we decide, they have not done. [3.] A part of the testator's indebtedness to the chil- dren, mentioned in the will, arises Out of the fact of his making an unauthorized sale of their interest in a tract of land. Those who are infants have not elected to ratify the sale and take their share of the purchase-money, and are incapable from infancy of making that election. An election can only be made for them by the chancery court. The amount of indebtedness depends upon that election. It would, therefore, seem that the appropriate forum for the settlement of the estate and the ascertainment of the legacies of the above-named children would be the chan- cery court. Decree affirmed. ♦TILLMAN vs. CHADWICK. [trespass by OWSBR against hired or slate.] 1. Hirer'* authority to punish slave, and liabilityYor abuse of that au- tJiority. — In the absence of qualifying stipulations in the contract of hiring, the hirer acquires the master'.; authority to inflict rea- ible punish n the slave; and in determining what is a reasonable punishment,- a question which admits of no certain and uniform solution, — regard must he had to the nature of the offense, and t<> the temper of the slave while receiving the pun- ishment ; since obstinacy, refractorinesBj or rebelliousness on his part, justifies severer punishment than would otherwise be right and proper. 2. Ch i/. — A charge to the jury, asserting that, if the punishment inflicted by the hirer on a slave " was beyond what was right ami proper under the circumstances, then the onus was on him to prove that he was authorized by the slave's conduct to whip him thus severely, and (beyond what would have been right and proper," — is ealeulated to mislead alfd confuse the jury, and is pixvperly refused. OF ALAB AMA. 333 Tillman v. Chiidwick. Appeal from the Circuit Court of Russell. . Tried before the Hon. Robert Dougherty. Tins action was brought by William L. Tillman, against Dickinson Chadwick, to recover damages for injuries inflicted on a slave. At the time/)f the commis- sion of the alleged trespass, the slave was in the defend- ant's possession, under a contract of hiring. The only error assigned is, the refusal of the circuit court to give, at the instance of the plaintiff', the following charge: — "If the jury believe, from all the facts and circumstances of the case, as gathered from the testimony, that the punishment inflicted by the defendant on the slave was improper, and beyond what was right and proper under the circumstances, the onus was on him to prove that he was authorized by the slave's conduct to whip him thus severely, and beyond what would have been right and proper;" to the refusal ot which charge the plain tilt re- served an exception. B. II. Baker, and D. Clopton, for the appellant. Goldtiiwaiie, Rice & ISemple, contra. STOKE, J.— [Jan. 30, 1801.]— It is a settled doctrine of the law, that the owner of a slave, and whoever right- fully stands in his place, is "of necessity vested with au- thority to inflict on such slave reasonable punishment for the breach of police regulations." — Gillian v. Center, 9 Ala. 895. The hirer of a slave, when there are no qualifying stipulations in the contract of hiring, is, for the time be- ing, armed with the power of the owner in this respect. Nelson v. Bon dii rant, 26 Ala. 341; Hall v. Goodaon, 32 Ala. 277, What, is reasonable punishment, and when it can bo affirmed that correction has gone beyond this boundary, and become unreasonable and cruel, is a question which admits of no certain and uniform solution. Absolute obedience and subordination to the lawful authority of the master, are the duty of the slave; and the master or 834 SUrRKME COURT Tillman v. Chadwick, birer may employ so much force as may be reasonably necessary to secure that obedience. The law cannot en- ter into a strict scrutiny of the precise force employed, with the view of ascertaining that the chastisement had or had not been unreasonable. Still there is a boundary, and the force must not be grossly disproportionate to the offense. Much must depend on the nature of the trans- gression in the first instance, and on the temper of the slave while receiving the punishment. On the other hand, the master, hirer, or overseer, should ever bear in mind, that the main purpose of correction is, to reduce an offending and refractory slave to a proper state of submission, respect and obedience to legitimate authority. This chastisement should be so attempered and applied as to secure the end aimed at, with as little risk of per- manent injury or danger to the slave or his owner as is reasonably compatible with the surroundings. — See Dave , v. The State, 22 Ala. 23; Eskridge v. The State, 25 Ala. 30; Hegan v. Carr, 6 Ala. 471. Punishment for a past offense, which is inflicted with a view to reformation, should be graduated by the nature of the offense; and somewhat by the fact, whether the offense has been of frequent or rare com- mission. We mean this remark for cases where the slave submits without obstinacy to the proper correction. Should the slave prove rebellious or refractory, more severity would doubtless be necessary, to secure proper reformation and example. In this way, legitimate pun- ishment may sometimes be carried much beyond what the offense in the first instance would seem to render necessary. We supp'^e the idea last above suggested was probably had in v : ".v by the counsel who asked the charge in this case, ti*d refusal to give which raises the only question which this record presents for our consideration. The substance of the charge asked was, that if the whipping was beyond what was .right and proper, then the onus was on the defendant to show that the negro's conduct was such as to authorize his hirer to whip him beyond OF ALABAMA. 835 Cox v. Mobile & Girard Railroad Company. what was right and proper. Now, the negro's conduce might possibly be such as to justify much greater correc- tion, than would under ordinary circumstances be right and proper; yet, this would only show that much greater chastisement, under some circumstances, would be right and proper, than would be under le3S aggravating cir- cumstances. Under no state of case could it justify cor- rection beyond what was right and proper. The charge asked was calculated to confuse and mis- lead the jury, and was rightly refused by the court. — Shop. Digest, 462, §§ 81, 62, 68. Judgment of the circuit court affirmed. COX vs. MOBILE k GIRARD RAILROAD COM- PANY. [ACTION OS PROMISSORY NOTE, BY ENDORSEE AC.VINST MAKER.] 1. Discharge of surety by new contract between ate&itor and pYincpal debtor. — A new contract between the creditor and the prin- cipal debtor, made without the consent of the surety, and founded upon valuable consideration, by which the time of pay- ment is extended, discharges the surety, although n other day of payment is fixed. 2. Same; usury. — An agreement by the principal debtor to pay usu- rious interest in future, in consideration of the creditor's promise of payment, being void, doe* n..t discharge the surety ; whether the actual payment of usurious i .ltsrast by the incipal, would discharge tin- surety, quart f Appeal from the Circuit Court of Macon. Tried before the Hon. Robert Dougherty. This action was brought by the"appellce, a corporation chartered by the legislator* of this State, against William Cox; and was founded on a promissory note for 8144S 97, executed by one A. D. Cleckley and the defendant, dated : SUPREME COURT Cox v. Mobile & liirard Railroad Company. the 15th April, 1850, and payable on the 1st January, 1851, with interest from the the 1st January, 1850, to "William M. Lampkin or bearer. The defendant filed three special pleas, each averring, in substance, that he was Cleckley's surety ou the note, and that the payee, af- ter the maturity of the note, entered into a contract with Cleckley, without the defendant's knowledge or consent, whereby, for a valuable consideration paid by said Cleck- ley, said payee extended the time of payment fixed by the note; and lie also pleaded usury, and the failure of the plaintiff' to sue Cleckley after due notice. On the trial, as c the bill of exceptions shows, after the plaintiff had read to the jury the note which was the foundation of the suit, the defendant read in evidence the deposition of said Cleckley, who testified, in substance, that he was the principal in the note, and the defendant was only his surety; that the consideration of the note w?s, "cotton bought on time," and that he several times procured in- dulgences on the note, (not stating any particular time,) without the knowledge or cousent of the defendant, by paying usurious interest. There was other evidence iu the case, but it requires no particular notice. The court charged the jury, at the instance of the plain- tiff—" 1. That if they believed, from the evidence, that Lampkin agreed with A. D. Cleckley, the principal in the note, to postpone the day of payment of said note; and that the consideration of said agreement was, usurious in- terest agreed to be paid by said Cleckley,-this was not such an agreement to extend the day of payment as would discharge the surety, and they must find for the plaintiff'. "2. That if they believed, from the evidence, that there was an agreement between Lampkin and Cleckley, the principal, to extend the day of paymeut of said note after its maturity, and that there was no definite period of ex- tension agreed on, tlven the surety was not^discharged, and they must find for the plaintiff." The defendant excepted to these charges, and then re- quested the court to give the following charge: "The OF ALABAMA. 337 Cox v. Moliik' A: Girard Railroad Company. surety has a right to stand upon the terms of his con- tract; and it there was an agreement entered into-by Lampkin, while he was the owner of the note, with Cleck- ley, the principal, upon a Valuable consideration, either paid, or agreed to be paid by Cleckley to Lampkiu, to ^postpone the day of payment beyond that fixed by the note, (no definite time being agreed upon,) without the defendant's consent, such extension of payment dis- charged the defendant, and the jury must, in that event, find for the defendants The court refused this charge, and the defendant excepted to its refusal. The charges given by the court, and the refusal of the charge asked, are now assigued as error. Wm.P. Chilton, and Geo. W. Gunn, for appellant. — 1. An extension of the day of payment, by agreement between the creditor and the principal debtor, founded upon valuable consideration, and made without the con- sent of the surety, discharges the surety from all liability, irrespective of the length of time. — Iladcn v. Brown, 18 Ala. G41; McKay ft McDonald v. Dodge & .McKay, 5 Ala. 388 ; Rathbone v. Rathbone, 10 Johns. 597; King v. Baldwin, 17 Johns. 384; 7 Hill, (N. Y.) 250; 2 Stew. 63; Theobald on Principal and Surety, 118, 123, 181, 184; 32 N. II. 560; 23 Barb. 478; 6 Indiana, 128; 43 Maine, 381. 2. An extension of the day of payment, in considera- tion of the payment of usurious interest, discharges the surety. — Kyle v. Bostick, 10 Ala. 58!'. CloptoN & LlGON, -1 .To discharge the surety by a new contract between the creditor and principal del. tor, then valid contract, founded on a val- uable consideration, and for a definite period of time. — land v. Compton, 80 Miss. 124; Clark Co. v. Cov- ington, 26 MiM. IT". 1U 1>. nn. St. K. ■ 13 III. 34?; 28 M 2. An agreement to pay nsurioc jnotavalid contract. — Kyle v. Bostick, 10 Ala. 589; 1 B. Monroe, 322; 81 Miss. 664. 338 SUPREME COURT Cox v. Mobile & Girard Railroad Company. R. W. WALKER, J.— [Feb. 1, 1861.]— It is Baid ia many of the cases, that, to discharge a surety by exten- sion of the time of payment, there must not only be a sufficient consideration, but the time of the extension must be definitely and precisely fixed. — Gardner v. Wat- son, 13 111. 347; Parnell v. Price, 3 Rich. L. 121; Wad- lington v. Gary, 7 Sm. & M. 522; McGee v. Metcalf, 128m. & M. 535; Freeland v. Compton, 30 Miss. 424; Miller v. Stein, 12 Penn. St. 383,389; Alcock v. Hill, 4 Leigh, 022 ; 1 Parsons Contr. 173 ; President of Police Board v. Covington, 26 Miss. 470; Burke v. Cruger, 8 Texas, 6Q ; Thornton v. Dabney, 23 Miss. 550 ; Miller v. Stern, 2 Barr, 286. It is undoubtedly true, that a mere indulgence, deter- minable at the will of the creditor, will not discharge the surety; and it is to indulgences of this character, that the case just cited must be held to refer. The principle to be extracted from the authorities is, that where the creditor, upon sufficient consideration, and without the consent of the surety, makes au agreement with the principal debtor, the effect of which is to post- pone the period at which the performance might have been compelled in due course of law — in other words, if, by a valid agreement, the creditor precludes himself from proceeding against the principal, after the debt is due, according to the terms of the original contract, even for a moment, the surety is discharged. And the true ground on which the surety is relieved in such cases, is the pre- sumptive injury to him, arising from the fact that such an arrangement obstructs his right to pay up the money as soon as it \a due, thereby acquiring the power of im- mediately pursuing the debtor, and that it otherwise im- pairs the remedies which the surety may find necessary fgr his protection. If the creditor has tied up his hands, so that he could not himself immediately pursue the deb- tor, then the surety could not do so, either on paying up the debt, or filing his bill quia timet; for he can only be substituted to such rights as the creditor has.— Norris v. Crummey, 2 Rand. 323, 334-38; Hunter v. Jett, 4 Rand. OF ALABAMA. 339 Cox v. Mobile & GHrard Railroad Company. 104; Chichester v. Mason, 7 Leigh, 244, 253; Bangs v. Strong, 7 Hill, 250; S. C, 4 Comstock, 315. 325; Comegys, v. Booth, 3 Stew. 14; Rathbone v. Warren, 10 Johns. 587; Addison Cont. 70, and case cited; 2 Am. Lead. Cas. 176 ; Draper v. Ronicyu, 18 Barb. 169. In Haden v. Brown, (18 Ala. 641,) it was held, that where there is an agreement, on sufficient consideration, postponing the day of payment of a bill of exchange, although it may not be shown how long, or to what par- ticular time, the payment is agreed to be postponed, the principle above stated applies, and operates the discharge of the surety. In support of this proposition the court said: "It is contended, that the plea, which was demur- red to, is insufficient, in as much as it does not show how long, or to what particular time, the payment ot the bill was agreed to be postponed. But we think that this ob- jection cannot be sustained. A surety has the right to stand on the precise terms of his contract, and is dis- charged, if those terms are altered without his consent, whether the alteration consists in the amount of the ob- ligation, or the time or manner of performing it. — Mc- Kay v. Dodge, 5 Ala. 383 ; Bang v. Strong, 7 Hill, 250. Nor is it material, whether such alteration is prejudicial to the surety or not. The only question is, whether the contract has been changed without his consent; and if it fee found that it has been, the surety is discharged; for, never having assented to the new contract introduced by the change, he is not hound thereby. Testing the plea by this rule, we think it is substantially good. It avers, that for a valuable consideration, moving from the drawer of the bill to the plaintiff's testator, who was the holder, the day of payment was postponed. If so, the contract changed, and the def! ndant discharged, unless he nted to the alteration. It may be true, that an agree- ment between the principal debtor and the creditor, which not stipulate for 1 any precise 1 time, bat leaves the I right in the creditor I »r, or demand the money due by the contract, at an}' mora is not work a change of the contract as to the time of payment. But, when 340 SUPR E ME COURT Cox v. Mobile &. Girard Railroad Company. the day of payment is postponed by an agreement found- ed on a sufficient consideration, then it cannot be said that the time of payment has not been altered." In the present case, the time of payment fixed by the note itself was the 1st day of January, 1851. By the original contract, to which the surety was a party, the creditor might have demanded payment on that day, and, on default of payment, might have brought suit on the note on the next day. On the facts supposed in the charge which the court was asked to give, the creditor, without the consent of the surety, and for a valuable considera- tion, made an agreement with the principal debtor, whereby the day of payment was postponed beyond the 1st day of January, 1851. For a sufficient consideration, the creditor gave up his right to demand payment on the 1st January, or to institute suit on the 2d. Under his new agreement, he had not the legal right to do either of these things. It matters not that no other day of pay- ment was specifically agreed upon by the parties. By a valid contract, the creditor's hands are tied, for at least one day; and it is sufficient for the discharge of the surety, that the creditor lias, by something obligator} 7 , deprived himself, for a single day, of the right of de- manding payment and bringing suit. For as, under the supposed contract, the creditor could not have demanded payment on the 1st of January, or commenced suit on the 2d ; so, the surety could not, by paying up the debt on the 1st, have acquired the right of immediately pur- suing the debtor. If the agreement had been, that the day of payment of the note should be postponed to time beyond the 8th of January, 1851, it would hardly be contended, that the surety was not discharged, al- though no other day of payment was specifically fixed upon by the parties. An agreement, which legally pre- vents the creditor, for a single day, from enforcing col- lection, has, as to the surety, the same effect as a contract which ties his hands for seven days. In both cases, there is a binding contract, by which the creditor is precluded from suing upon the contract, as soon as he had the right OF ALABAMA. 341 Cox v. Mobilo & Girard Railroad Company. to do according to its original terms. — Draper v. Romeyu, 18 Barb. 1G6. The decision, in Haden v. Brown, supra, appears to be precisely fn point; and, on the authority of that case, we must hold, that the charge asked should have been given. — See Dickerson v. Board of Comms. 6 Indiana, 128, 134; Fellows v. Prentiss, 3 Denio, 512, 518, 521; 3 Leading Cases in Eq. 561, (3d ed.) and cases cited; King v. Upton, 4 Greenl. 387; 2 Am. Law Reg. 387. [2.] Merely giving further time of payment to the principal debtor, without the consent of the surety, doog not discharge the latter: time must be given in pursuance of a valid contract for that purpose, which tics the hands of the creditor, so that he cannot sue if he would. The contract for further time is not valid, unless founded upon a sufficient legal consideration. A promise, on the part of the debtor, to pay usury in future, is an engagement which the law pronounces utterly void, and is, conse- quently, no consideration whatever for a promise by the creditor to give further time of payment. Such a con- tract for delay, not being binding on the creditor, does not discharge the Bfcrety. The first charge given by the court rests upon the hypothesis, that the consideration of the agreement for delay was " usurious interest agreed t<> Repaid by Cleckley" — that is to say, an executory under- taking on the pari of the debtor to pay usury thereafter. That such a contract does not discharge the surety, is expressly decided in Kyi.- v. Bostick, 10 Ala. 589; and to the same effect are Tudor v. Goodloe, 1 B. Mom 322; T'yke v. Clark, 3 ib. 262; Bcott V.Hal], 6 ib. 287; Roberts v.Stewart, 31 Miss. 664; Vilas v. Piercy, 1 Comst. 274, and Standclift v. Allen. 14 Ver. i In Kyle v. Bostick, there is a rficwm, to the effect that, "if the money had been in fact paid by d of a promise to pay it merely, tie' case Would he different."— 10 Ala. 695. The distinction | luggesti d, ! tw< i n mi executed and an executory usuri- ous contract— between the payment of usury in advance, and a mere promise to pay it in future — as a foundation 842 S UPREME COURT Smith v. Moore. for a promise on the part of the creditor to give further time, has been recognized and acted upon in several cases decided by the Kentucky court o£ appeals. — Kenningham v. Bedford, 1 B. Mon. 325; Pyle v. Clark, 3 ib. 262; Scott v. Hull, 6 ib. 285; Patton v. Shanklin, 14 ib. 15. See 2 Am. Lead. Cases, 173, 179; Auderson v. Mannon, 7 B. Mou. 218; Duncan v. Reed, 8 ib. 382. While these cases recognize the principle, that a promise to pay usury at a future day, is no consideration for an agreement for au extension of time by the creditor, they hold that, if the usury is actually paid down at the time of the promise to forbear, and as the consideration for such promise, the surety will be discharged. The soundness of this dis- tinction has been denied in New York, and it is there held, that neither the promise to pay, nor the actual pay- ment of usury, is a good consideration for a promise by the creditor to give time; and that a contract for delay, founded on either the one or the other, does not bind the creditor, or discharge thesnrety. — Vilasv. Piercy, 1 Comst. 274, 28G-7-9. None of the exceptions taken in this case distinctly present the question here alluded to, and we will not pass upon it at this time. Judgment reversed, and cause remanded. SMITH vs. MOORE. | EQUITABLE ATTACHMENT.] I * 1. Bequest l,< lrustee y for comfort and support of debtor, but not liable fot his debts, subject to equitable attachment. — Where a sum of money is bequeathed to a trustee, in trust for a debtor, 4 " not subject to any debt or debts he may have contracted, but for his comfort and support,'' it may bo subjected by equitable attachment (Code § 2956) to the payment of his existing debts. OF ALABAMA. 343 Smith v. Moore. Appeal from the Chancery Court of Macon. Heard before the Hon. James B.- Clark. The bill in this case was filed by Amos Moore, against "William G. Smith and Thomas H. Smith; and sought to subject to the payment of a debt, due and owing to the complainant by said William G. Smith, a fund which was in the hands of said Thomas H. Smith, as trustee of said "William G., under the following clause in the will of their deceased father, Guy Smith, to.- wit : "I further give to my son Thomas H. Smith, in trust for my son William G. Smith, the further sum of thirty-six hundred dollars, not subject to any debt or debts he may have contracted, but for. his comfort and support; and should he depart this life before receiving the same, then, and in that event, the thirty-six hundred dollars to be equally divided with my other children in life; and if any should be dead, their share to their child or children." The testator's will was executed in Georgia, where he resided; and was duly admitted to probate there, after his death, in July, 1857. The complainant's debt against William G. Smith was evidenced by a promissory note, dated the 14th April, 1852, and payable on the 1st November next after date. The fund sought to be reached was paid over to Thomas H. Smith by the administrator in Georgia, and was in his hands at the commencement of the suit. The prayer of the bill was for an equitable attachment, an account, and general relief. A decree pro confesso was entered against William G. Smith, on publication duly perfected against him as a non-resident. Thomas H. Smith answered, ad- mitting the material allegations of the bill; but insisting that neither the principal nor the interest of the fund in his hands was liable to the Complainant's demand, and demurring to the bill for want of equity. On final hear- ing, on pleading- and proof, the chancellor held, that the entire fund, both principal and interest, or as much there- of as was necessary, was liable to complainant's debt. He therefore overruled the demurrer, and rendered a de- 344 SUPREME COURT Smith v. Moore. crce for the complainant; and his decree is now assigned as error. Clopton k Ligon, for appellant. — 1. If William Smith was entitled to the possession of the money, and could sue for and recover the same from the trustee, (as the chancellor held,) theu the complainant had a full, complete, and adequate remedy at law, by attachment and garnishment. — Hall v. Magee, 27 Ala. 410; Ilarrell v. Whitman, 1!» Ala. 135. Such a construction, however, would render the trustee a mere conduit, through which the money was to pass from the executor to William Q> Smith; and his appointment would be a useless and nu- gatory act. On the contrary, the interposition of the trustee was necessary, to receive the fund, to apply the income arising from it to the comfort and support of the legatee, and to preserve the fund for the contingent re- mainder-men ; and his title does not cease, until these objects arc fully accomplished. — Comby v. McMichael, 19 Ala. 747. 2. The broad doctrine was at one time maintained in England, that every right to property, both legal and equitable, must be subject to the incidents of property — alienation, and the payment of debts ; and this was put upon the ground, that it was against public policy, and a fraud on creditors, to allow property to be held by a debtor, or in trust for his use and benefit, without being liable to the payment of his debts. But modern decisions in England, and more particularly in America, have greatly restricted and qualified this doctrine; and the principles upon which these later cases rest, commend themselves by their correct reasoning, and by their en- lightened views of public policy. No principle of public policy is contravened, by a father, while living, support- ing an indigent or an improvident child ; and it is ditticult to see what principle forbids that, after his death, his bounty should be expended in the same way, through the agency of an executor or trustee.. Creditors have no claim on the father or testator, and their rights are not OF ALABAMA. 345 Smith v. Moore- prejudiced by his bounty to their debtor: on the contrary, they may be greatly benefited thereby. These views are elaborated, and maintained by unanswerable argumeuts, in Hill and Wife v. McRac, 27 Ala. 182; and in Braman v. Stiles, 2 Pick. 463. An examination of the more modern leading eases, both in England and in America, will show, that wherever a right in the property itself, or its proceeds, is vested in the lebtor, the same is subject to his debts; but that the words, "support and mainte- nance,"] "comfort and support," &c, do not vest such an interest in him as --an lie resetted by his creditors. — Two- penny v. Peyton, 10 Sim. 487; Godden v. Crowhurst, ib. 642; Stagg v. Beckman, 2 Edw. Ch. 89; Ashurst v. Given, 5 Watts cv. Serg. 323 ; Vaux v. Park, 7 Watts & Serg. 19; Fisher v. Taylor. 2 Hawle, 33; Norris v. Johnson, 5 Barr, 289; Eyrick v. Iletrick, 13 Penn. 491; Pope v. Elliott, 8B. Mmi. 56; 2 Ueavan, 63j 18 Vesey, 429; 5 Paige, 583. In this ease, besides violating these general prin- ciples, thechancellor'i decree operates to defeat the rights of the contingent remainder-men. — Williamson v. Mason, 23 Ala. 503; Elmore v. Mustiu, 28 Ala. 313. X. S. Graham, centra, cited Hugely k Harrison v. Rob- inson, 10 Ala. 731; Robertson & Pettibone v. Johnston, 36 Ala. P»7, and the authorities therein cited. A. J. WALKER, C. J.— [Jan. 29, 1801.]— It is clear" that the intended to make the specified fund tree fr^in liability to the debts of Win. G. Smith ; and it is almost equally char, that the law forbids the accomplish- tnent of the purpose. The fond itself, not merely the interest, ia devoted to the "comfort and support" of the- cestui que trust. This is net only the necessary effect, of the terms, in which the gift of the fund, in trust for his Comfort and support, is made; but it is clearly implied from the making his death, without receiving the fund, the upon which the limitation over depe The fund is not given to the trustees, to enable them to support the the money itself is given in 23 346 SUPREM E COTJRT Smith v. Moore. trust for Win. G., for his comfort and support; ami he has, undoubtedly, the right to- receive for his comfort an J support the entire fond, with its accumulations, if neces- sary. Can it be that a fund, from which one lias thus a right to draw for his comfort and snppor5 until it is ex- hausted, is exempt from all liability to hi9 debts? We shall not deny, that decisions made in Pennsylva- nia go to the extent of holding property th?is situated free from liability to debts.— -7 W. & S. 19; Ashurst v. Given, 5 W. & S. 323; Norris v. Johnston, 5 Barr, 287; Holdship v. Patterson, 7 Watts, 547; Fisher v. Taylor, 2 Rawle, 33; Eryck v. Hetrick, 1 Har. 488. And a case in Kentucky, and another in Massachusetts, go very far in the same direction. — Pope v. Elliott, 8 B. Mon.56;. Braman v. Styles, 2 Pick. 4S0. But the Pennsylvania decisions make a palpable innovation upon the law ae long established in the English* court of chancery, and it is so avowed by the opinion in Norris v. Johnston, 'supra. — 1 White k Tudor's Leading Cases in Eq, 544; Notes of Hare and Wallace to Hulme v. Tenant. The English doctrine "forbids the disposition of prop- erty, divested of its legal incidents" of liability to debts, and susceptibility of alienation. — 1 Jar. on Wills, 810; Hill on Trustees, 395. And under the operation of that doctrine, a liability to debts, to the extent of the debtor's interest, baa been enforced, in the cases following, to-wit: Where the dividends were directed to be paid into the proper hands of a man, or on his own proper order or re- ceipt, and not to be assignable by way of anticipation, (Brandon v. Robinson, 18 Ves. 429;) where an annuity was given in trust for the maintenance and support of the cestui >/"<• trust, not to be liable to his debts, and to be paid, from time to time, into his proper hands, and not to any other person, (Graves v. Dolphin, 1 Sim. 66;) where an annuity was bequeathed intrust, with directions for the payment of dividends for the sole purpose of the main- tenance and support of the legatee and his family, and with a prohibition of alienation and liability to debts, (Yarnold v. Moorhouse, 1 Russ. & My], 364;) where OF ALAB AMA. 347 Smith v. Moore. property wits held in trust, to be Applied In such manner, and to such persons, for the board, lodging, and subsis- tence of the donee and his family, as the trustees should think proper, (Rippon v. Norton, 2 Beav. (34;') where there was an assignment to trustees of a fund in trust du- ring the life of II, or such part thereof as they should think proper, and at their will and pleasure, and at such times and in such sums as they should deem expedient, to pay the interest to him, or, at their discretion, to ex- pend the interest in procuring for him diet, lodging, wear- ing apparel, and other necessaries, so that the same should not be subject to his debts or disposition, (Snowden v. Bales, b' Sim. 624;) and, lastly, where property was con- veyed to trustees, to pay and apply the rents and profits to the support of J, his wife and children, with a prohi- bition against any charge, or assignment, or anticipation by J. It is difficult to reconcile the two cases of Twopenny v. Peyton, (10 Mm. 487,) and Goddeu v. Crowhurst, (ib. 642,) with the other English decisions, or with the propo- sition, that the cestui que trust in this case has an interest liable to his debts. We refer to the discussion of those two cases by Judges Ormond and Goldthwaite, in Hugely & Harrisou v. Robinson, (10 Ala. 702,) where an attempt has been made to place them in harmony with the other decisions. — S . Hill on Trustees, 395, note x. In. Yoiuiglinshanfl v. Gisbome, ^1 Col. 400,) there was a trust for tie' personal support, clothing, and maintenance, with u provision that the fund should not be subject to the debts of the cestui que UruSt The fund was held sub- ject to pase to the assignees uuder the insolvent debtors' act; and the vice-chancellor, in commenting upon the - of Twopenny v. Peyton and Goddeu v. Crowhurst, said, that it tiny were not distinguishable from the case before him, he "must respectfully distent from them." So, too, we sxy, thatH they are not distinguishable from this . they are at war with all the other English decisions, and with a principle well established in the English law, and we must respectfully dissent from them. The au- 848 SUPREME COURT Smith v. Moore. thorities, which we have collated, most conclusively show, that the established doctrine in the English chancery docs not permit any other conclusion, than that the fund in the hands of Thomas IT. Smith is liable to the debts of Wmi G. Smith; The decision in Hill and Wife v. McRae, (27 Ala. 175,) when considered in its entirety, and not in reference to any single sentence, does not support the position, that in this case the trust fund enjoys any immunity from liability to debts. It is in reference to a bequest of property to be held in trust for the support of a man and his wife and children; and the decision is placed upon the ground, that the interest of the debtor was so blended with that of the wife and children, that the former could not be separated and subjected to debts without detri- ment to the latter. And the same doctrine seems to have been recognized'in the opinions in Rugely & Harrison v. Robinson, 10 Ala. 702. See, also, Fellows, Wadsworth & Co. v. Tann, 9 Ala. 999; Spear v. Walkley, 10 Ala. 328. , The precise question of this case seems to have been involved in the case ol Clark v. Windham, (12 Ala. 798,) and it is not a strained inference, that an adjudication of it adversely to the appellants is implied in that decision. In the ease of Robertson & Pettibone v. Johnston, (30 Ala. 197,) we endorsed the doctrine declared by Judge Or- mond in Rugely & Harrison v. Robinson — "that a bene- ficial interest cannot be given to one, so that it cannot be reached by his creditors, unless such interest is conferred, and re to be enjoyed jointly with others, and i3 also inca- pable of severance.'" We but carry out that doctrine, and follow the lead of our former decisions, in declaring that the fund held in trust tor William G.Smith is liable to his debts. We think Wm. G. Smith's right to the fund was equi- table, and was liable to attachment in equity under sec- tion 2956 of the Code.— You v. Flinn, 34 Ala. 409. Affirmed. OF ALABAMA. 34g Webb v. Keliy. WEBB vs. KELLY. [detinue fou slave.] 1. General objection to evidence — A general objection to evidence, a part of which is legal, may be overruled entirely. 2. Admissibility of declarations an part of res gestec — The declarations of the vendor ol a slave, made "a few days after the sale," to the effect that, if he had known that the slave was not going to T (whither the purchaser had represented that he intended to carry him,) he would not have sold him, are not evidence for the decla- rant, as a part of the res gestre, in a suit involving the validity of the sale. 5. .1 I :i tibilitij of record as evidence in another suit. — In detinue for a slave, brought by the vendor agunst the purchaser, — the material inquiry being, whether the purchase-money was furnished by the defendant, or by the slave himself: and the defendant, for the purpose of showing that the plaintiff, before the sale, " knew that the slave had money, and permitted him to have, use and dispose of it as lie pleased," having read in evidence a receipt, by which the plaintiff acknowledged to have received a sum of money, for -keeping, from the slave and his mother, — the record of a suit institute 1 by the defendant, after the sab', in the nameof the owner of the slave's nv ther, i^but without hisauthority or knowledge, and aft i rwards dismissed by him,) for the recovery of this money from the plaintiff, is not competent evidence for the plaintiff, " to ejq lain said receipt, and to show that the defendant'regarded the money as b< to the slave's mother." 4. /'. witness, and duppnession of deposition. - ble, that the act "to compel the personal attendance of wit? in civil i d A.i ts 1857 8, p. C4,) does not apply to awit- who is confined in jail under a judicial sentence; but, if the proper affidavit has been made, and the attendance of the v. can be procured, the deposition ought to be suppressed. 5- ReU i uninat ion as witness. — The ty '>n a detinue Don I in iy 1> ■ wit- for Ins principal, on the execution bf the latter of a new bond, wif lent sureties ; but it is n une from the bond, against the objeq- of the ob ate the name of another sin. • •ad. 6. Master's right to money acquired by slave; of contrast d.tve.—U the mastes knowingly permits hia slave to ac- 850 SUPREME OOtTRT Webb v. Kelly. quire money, and to pay it out to a third person, in a fair business transaction, lie cannot afterwards reclaim it; but. if such third on receives and holds the money for the benefit of the slave, aiid as his bailee, and it is afterwards used, without the knowledge of the master, in purchasing the sine for himself from the master, the contract is void, and does not divest the title of the master. Appual from the City Court of Mobile. Tried before the Hon. Alex. McKinstry. This action was brought by James Kelly, against John T. Webb, to recover a slave named Wash, under the fol- lowing circumstances: The slave belonged to the plain- tift, and was employed by him as a cab-driver in the city of Mobile, butt was permitted to retain for himself about one-half of his wages. The defendant procured one Williams to negotiate with plaintiff for the sale of the slave: the plaintiff sold him to Williams, on the 16th July, 1857, for one thousand dollars, and executed to William a bill of sale, with warranty of title and sound- ness; and, oo the next day, Williams executed a similar bill of sale to A. Brooks, who then paid over the pur- chase-money to the plaintiff. A part of the purchase- money was paid by the draft of one Landermilk for $500, which he had given to the slave for borro wed money; and the defendant's evidence tended to show that he had him- self furnished a portion of the residue. The plaintiff contended, that the purchase by Williams was made, at the instigation of the defendant, under an agreement bo- tweon him :md the slave that the purchase should enure to the benefit of the slave, and that the money was in fact furnished by the slave. Williams testified, that he had no interest whatever in the slave, and that he made the purchase for, and at the instance of the defendant. Brooks testified, "that he never had or claimed any title to the slave, and never paid any of his own money tor him; but that the title was made to him to oblige the defendant, who did not want to be known in the trans- action, and who brought the money to him." During the negotiations between the plaintiff and Williams, the OF ALABAMA. 351 Webb v. Kelly. latter represented, "that he lived in Texas, where the slave iiad relatives, and intended to leave for Texas, with the slave, so soon as the purchase was concluded." A witness for the plaintiff, stated, "that he heard plaintiff say, a few days after the sale, that he would not have sold Wash, if he had known that he was not going to Texas, where he had kin." The court admitted this statement as evidence, as a part of the res (jcstcc, against, the defendant's objection; to which the defendant re- served an exception. Before the trial commenced, the defendant moved the court to suppress the deposition of one Mary Lebonte, which had been taken on interrogatories and cross-inter- rogatories while the witness was in jail under a judicial sentence; and stated to the court, "that he had made the statutory affidavit to procure the personal attendance of said witness, (Acts 1857-8, p. 34,) and that she was then present in the court-house, under the order ot the court." The court refused to suppress the deposition, "on the ground that the statute did not apply to witnesses who were in jail, under judicial sentence, for an offense against the crimita! laws;" but gave leave to the defendant to put the witness on the stand as his own witness, if he ■desired to do so. The defendant declined to" introduce the witneai as his own, and reserved an exception to .the ruling of his motion to suppress the deposition. Daring the trial, when die deposition of this witness was offered in evidence to the jury, the defendant moved the court to suppress the answer to the fourth interrogatory, which was in theee word-: "Wash pretended to be lame, in order that be might induce Mr. Kelly to sell him. I heard him say that this was his object. It was a acre pretense: be •« not lame. When he law Mr. Kelly or hii friends, he would make out that he was lame. In the house, whenever I -aw him, he walked straight. II'- Iced of how he was tryii.- _• Mr. Kelly." ground of objection to this answer was specified. court refused to exclude it, and the defendant ex- cepted. SUPRKMF, C OURT . Webb v. Kelly. The defendant had proved, that the plaintiff, prior to the sale to Williams, permitted the slave to retain a great part of his earnings, to employ eonsel to defend himself, when prosecuted for an infraction of the city laws, &c. ; and, "for the purpose of showing that theplaintift knew, before said sale, that the slave had money, and permitted him to have, use and dispose of it as he pleased," had read in evidence a receipt, signed by plaintiff, in these words: "Received from boy Wash and his mother, Cla- rissa, four hundred dollars, for safe-keeping;" on which were endorsed these words: "Paid on the within, two hundred dollars." " To explain said receipt, and to show that the defendant regarded the money as belonging to said Clarissa," the plain tilf offered in evidence the record of a suit, instituted against him, after the sale, in the name of one Wiley, (who was the owner of Clarissa,) for the recovery of the money specified in the receipt; ac- companied with the parol testimony of said Wiley, to the effect that said suit was instituted by the defendant, without his authority or knowledge, and was dismissed by him, at the defendant's cost, before trial. The de- fendant objected to the admission of this record as evi- dence, on the ground that it was irrelevant; the court overruled his objection, and he excepted. Qn the institution of the suit, the defendant having failed to give the statutory bond for the forthcoming of the slave, the plaintiff gave bond, with W. C. Wright and T. II. Robinson as his sureties; and the possession of the slave was delivered to him Iry the sheriff. During the trial, the court allowed the plaintiff, against the de- fendant's objection, to erase the name of Robinson from the bond, and to substitute the name of one Masterson in its stead, in onbr that he might examine Robinson as a witness; to which action of the court the defendant re- served an exception. The defendant requested the court to instruct the jury, "that if they believed, from the evidence, that the plain- tiff permitted the slave Wash to retain a part of his earn- ings for himself, and to use and dispose of the money he OF ALABAMA. 358 Webb v. Kelly. was thus permitted to acquire as he pleased ;. and that "Wash, in the absence of a revocation of this consent, afterwards loaned the money thus acquired to Lander- milk, and it was used by Williams in the purchase of Wash, then the plaintiff would have no right to reclaim the mouey so acquired, used, and disposed of by Wash." The court refused to give this charge, and the defendant excepted to its refusal. All the rulings of the court to which, as above stated, exceptions were reserved, are now assigned as error. Smith & Chandler, for appellant. — 1. The deposition of the witness Lebonte ought to have been suppressed, and the witness examined personally on the stand. The general policy of the law requires, that witnesses should be examined orally, in open court, whenever it can be- done. The act of 1858 is very comprehensive in its language, and does not exempt from its operation wit- ■s who arc confined in jail ; nor does any reason, or principle of public policy, demand that they should be excepted. Even if the act did not apply, it was the duty of the court to suppress the deposition, when it was made to appear that the witness was in fact present iu court. 2. The answer of this witness to the fourth interroga- tory, consisting of the declarations of the slave, was not competent evidence against the defendant. — Mautdin & Terrell v. Mitchell, 14 Ala. 814.. 3. The declarations of the plaintiff, made several days after the sale, constituted no part of the res r/. *///:, and were not niar the defendant A party cannot be permitted thus to manu- facture evidence for himself. — Hooper v. Kdwards, 20 Ala. 530; 6 Ala. 735; 3 Conn. 250] 2 J. .1. Mar. 880; L5 Barb. 4. The court erred in permitting the plaintiff to erase the name of I. in from the bond, and to substitute the name of M in in its -tend. This eff i ma- terial alteration of the bond, which rendered it void as to the other surety; ami the rights of the obligee cannot be 354 SUPREME COURT Webb v. Kelly. thus impaired or destroyed, against his consent. A new bond ought to have been executed and tendered. 5. The record of the suit of Wiley against Kelly was not relevant to any issue in the case, while it contained evidence which was calculated to injure the defendant before the jury. 6. The charge asked and refused, ought to have been given. It was proved, that plaintiff, permitted the slave to retain and dispose of a part of his earnings as he pleased, knew that he had money, and authorized Lan- dermilk to borrow money from him ; and that the money so borrowed b} r Landermilk was used in the purchase by "Williams. On these facts, he had no right to reclaim the money. — Shanklin v. Johnson, 9 Ala. 270 ; Jones v. Nird- linger, 20 Ala. 490 ; 28 Ala. 520. If he had the right, at his election, to rescind the contract, and recover the slave, he ought first to have returned the money advanced by the defendant.— 13 Barbour, 645; 2 Hill, 288 ; 1 Denio, 74; 1 Me teal f, 550. F. S. Blount, and G. Y. Overall, contra.— 1. The act of 1858, to compel the personal attendance of witnesses, has no application to persons who are in jail under sen- tence of the law ; nor had the defendant complied with its requisitions, to procure the attendance ot the witness. If he was injured by the refusal of the court to suppress the deposition, he might have examined the witness orally, as the court gave him permission to do. 2. The answer of the witness Lebonte to the fourth in- terrogatory contained some legal evidence, while the ob- jection to it was general. — Bigelow v. Ward, 29 Ala. 471; Shepherd's Digest, 59(3, and authorities there cited. 3. The declarations of the plaintiff were admissible, as a part of the res gcskr ; and even if there was error in their admission, the error worked no injury, since the evidence could not have affected the issue before the jury. 4. The plaintiff had a right to examine Robinson as a witness, and to substitute a new surety in his stead. - - OF ALABAMA. 355 Webb v. Kelly. 5 8m. & Mar. 238; 3 Cowen, 251; 3 Wendell, 376; 8 Johns. 308. 5. It wus certainly competent for the plaintiff to ex- plain the receipt which the defendant had read in evi- dence, and to show that the defendant himself had treated the money, therein mentioned, as belonging to Clarissa; and the record was admissible evidence for that purpose. 6. If the money paid by Brooks to Kelly, or any part of it, was furnished by the slave, and that fact was not known at the time by Kelly, the sale was a nullity, and Kelly's title to the slave was never divested. So long as the money remained in the possession of the slave, or was held in trust tor him, the master had a right to reclaim it. 9 Ala. 271 ; 20 Ala. 490 ; 28 Ala. 514. The sale was void, for fraud, ami for want of consideration. — 15 Mass. 156; 10 N. II. 477; 14 Barbour, 594; Cro. Ella. 199; 1 Bing. N. C. 534; 6 x\. II. 225; Cbitty on Contracts, 589. STONE, J. —[Feb. 26, 1861.]— In the answer of the Witness Mary Lehoute to the 4th interrogatory, are some statements of fact, which are clearly legal evidence. The objection of the appellant was general, to the wlole answer. Under these circumstances, the court did not err in overruling the objection. — Shep. Dig. 696, § L69. [2.] In admitting, as evidence for plaintiff, what he had himself said a few days after the sale, the city court erred* This was do part of the res gestae, and Mr. Kelly could not make evidence for himself. — Shep. Dig. • wcombe v. Leavitt, -11 Ala. I [."..] Wcdoii.it know any principle on which the re- cord of the -'lit I arid Kelly could be evi- dence for mate purpose in this trial. It was, irrele i not po shed any light on the main subject <>f contest, namely, whose money was osed in the purchase <>f ti Waehl The court erred in admitting the ( l»] The question of the duty of the city court to sup- | - the '1 the witness Mary Lehoute, and to bring her personally before the court, will prolfably not 356 SUPREME COURT Webb v. Kelly. again arise in its present form. It is probably true, that a witness, confined in prison under sentence of the law, is not within the spirit of the statute; but when the proper affidavit is made, and the attendance of the witness can be procured, the deposition should be suppressed. — Acts 1857-8, p. 34 [5.J In the form in which the attempt was made to render Mr. Robinson a competent witness for Mr. Kelly, the city court also erred. It was not permissible to erase Mr. Robinson's name from the bond, and supply his place with another surety. A new and sufficient bond should have been executed and approved, before any action of the court should have been had, exonerating Robinson as a surety. Tendering such good and sufficient surety, and executing a proper bond, Mr. Kelly had the right to ask that his former surety be discharged, that he might testify ae a witness for him. — Taylor v. Branch Bank at Hunts- ville, 14 Ala. 633; Driukwater v. Holliday, 11 Ala. 134. [6.] We think the charge asked and refused, misappre- hends the rights of the parties to this suit. The gist of Mr. Kelly's complains lies in the claim by him, that the pretended purchase of Wash, by Mr Williams and Mr. Webb, was with money to which neither of them had any claim, but which belonged to him, Kelly; that a fraud was practiced upon him, and his title to his property sought to be divested, by a pre- tended purchase by Williams, when in fact the purchase was made by the slave Wash himself, with the money of his master. The rule is well settled in this State, that a slave can not be the owner of property, but whatever accrues to .the slave, becomes the property of his master. — See Bran- don v. Bank of Huntsville, 1 Stew. 320; Jones v. Nird- linger, 20 Ala. 488. If the slave acquire money or prop- erty with his master's consent, and with like permission pay it out to another, who receives it fairly and in a business transaction, the owner of the slave cannot after- wards pursue such money and recover it. — Shanklin v. Johnson* 9 Alabama, 271; Stanley v. Nelson, 29 Ala. OF ALABAMA. 357 Miller v. Hampton, adm'r Jhc. 514. But, to come Within this rule, the person who re- ceives the money or propert} T from the slave, must receive it in his own right, and not as a bailee or custodian for the benefit of the slave. If the money or other thing be received and held for the slave, it is still subject to the master's assertion of ownership. The fact that Wash "loaned the money thus acquired to Landermilk, and it [the money] was used by Williams in the purchase of Wash," did not, without more, destroy Mr. Kelly's right to the money. It Would still be sub- ject to -his assertion of ownership, so long as it was held for Wash's benefit; and if the purchase was in fact made with money furnished by the slave, without the know- ledge of Mr. Kelly, and this change of title was procured to be made to Williams, but, in reality, was for the benefit of the slave himself, — then, on the astertaininent of these facts by the jury, Mr. Kelly would have the right to retake the possession of his slave. Reversed and remanded. MILLER vs. HAMPTON, Adm'r &c. [deti.ntk FOB slates.] 1. Chargrx yivcn on request mvH be (al.cn by jury on retirement. — "When charges to the jury, in writing, are given by the court at the re- ' quest of u party, it ia the duty of the court to allow the jury to take such charges with them on their retirement, and the refusal to do ?o is i rror: the s'.itun- (Code, I 2355) is mandatory, and not simply di cctory. i. — A delivery bond, executed by the defendant in detinue, whi< h doea not recite any fact showing that ndant had n of the property at the Berviceol the wril top bim from showing, in defense of the action, that !)•' did n ion of the property at that tim<- ; nor does the giving of such bond operate an estoppel en SUFKF.ME COURT Miller v. Hampton, ailm'r &c. ncninst him. — {Explaining and limiting Wallia v. Long, 1(» Ala. 738.) 3. Admissibility «f parol to vary date of deed. — Parol evidence is ad- missible., to ehow that a d-oed or bond was in fact executed on a different day from that stated in it. Appeal from the Circuit Court of Walker. Tried before the Hon. A. A. Coleman. This action was brought by J. W. Hampton, ns the administrator of Martha Miller, deceased, against Lucius C. Miller and Matthew R. Miller, to recover several slaves; and was commenced on the 12th March, 1859. The writ was executed by the sheriff, on the day of its date, on both of the defendants, who, on the same day, executed a delivery bond for the forthcoming of the slaves, which was approved by the sheriff on the 14th March, and the condition of which was in the following words: " Whereas the above-named J. W. Hampton did, on the 12th March,, HJ59, obtain from the office of the circuit court of Walker county a writ or summons against the said L. C. Miller and M. R. Miller, returnable to the spring term of the circuit court of said county; and whereas the sheriff of said county was, by said writ, commanded to seise and take iti possession the following slaves," (naming litem;) "by virtue of which summons, II. (i. Lollar, sheriff, did take possession, of the above- named slaves: now, if the above-bound L. O. and M. R. Miller shall well and truly deliver the above-mentioned slaves to the said J. W. Hampton, administrator as afore- said, within thirty days after judgment, in case the said Millers fail in the suit, and pay all damages of said prop- erty and costs, then the foregoing obligation to be void," &c. The defendants pleaded, "in short by consent," non delineiit, and the statute of limitations of six years. On the trial, as the bill of exceptions shows, after the plaintiff had read in evidence the delivery bond executed by the defendants, "the defendants offered evidence showing, that said Matthew R. Miller did not have pos- session of any of said slaves at the commencement of this suit, and that do demand had been made of him for said OF ALABAMA. 359 Miller v. Hampton, adm'r kc. •laves before the bringingot this suit; and, in connection with this evidence, offered to prove that the name of said Matthew K Miller, as one of the makers of said delivery bond, was not signed by hirn. This testimony was offered, as stated at the time, to contradict the recitals of said bond as to possession ; the said defendant admitting the bond to be his bond and genuine." The court excluded the evidence, and the defendants excepted. The conrt charged the jury, "that the delivery bond given in this case estopped both of the defendants from denying that they had possession of the slaves sued tor at the service of the writ ;" to which charge the defend- ants excepted."' "The defendants asked the court to give several charges, which were in writing, and which the court gave as asked. The defendants then asked the court to permit the jury to take said charges, so given by the court, with them on their retirement to consider of their verdict; but the court refused to do so ; to which refusal thr defendants excepted." The several rulings of the court to which exceptions were reserved, arc now assigned as error. Tuns. M. I "or appellant. — 1. The delivery bond did not estop the defendants from showing that Matthew R. Miller was not in p< a of the property at the service of the writ. It contains no recital of possession by them, or of facts from which such possession can be implied : and it< m< ution cannot operate as an estoppel v sinre the plaintiff's conduct could not have been in any manner influenced by it. It was simply intended t-. -•.■cure the delivery of the property to the plaintiff, and the payment of the costs nnd damages, in • vent h< led in the suit) and it cannot be ex- tended by construction to purposes not contemplated by the parti 1192-98; 1 Ureenl. Kv. §§ J2-27* 1 Phil. Kv and notes; MrCravey V Romson, 19 Ala. 4M j Pounds v. Richards, 21 Ala. 421 ne v. Britton, 22 Ala. 648; Cratcbield v. Hudson 23 Ala. 898; Ware v. Cowles, 24 Ala. 446; 14 Ala. 371 360 SUPREME COURT Miller v. Hampton, adm'r &c. 27 Ala. 651; 29 Ala. 233; Giles v. Pratt, 2 Hill, (So. 139 ; 1 Car. & P. 22 ; 2 M. & R. 481 ; 11 Shep. 332 ; 7 Conn. 214; 4 Mass. ISO, 273; 2 Pick. 425; 9Pick.520; 1 Rawle, 141 ; 2 John. 382; 3 Rand. 563; 8 W. & S. 1 ■ 31 Ala. 53:!. 575; 7 Barr, 185; 8 Wendell, 483; 9 B C. 586; 6 N. II. 453. 2. The jury ought to have been permitted to take with them, on their retirement, :he written charges which had been given at the instance of the defendants. This was not a matter of discretion with the court, but a right se- cured to the defendants by statute. The statute is man- datory, and not directory merely-; and it ought to receive such a construction as will effectuate the purposes intended by it.— Code, § 2865; Ex parte Banks, 28 Ala. 28, and bases there cited; 1 Bouv. Die. 473; 4 S. & R. 265; 3 Burr. 2539. John T. Morgan, contra. — 1. As to the conclusiveness of the delivery bond, see Wallis v. Long, 16 Ala. 738. 2. That the word may, as used in section 2355 of the Code, is directory merely, see Ex parte Simonton, 9 Por- ter, 895; Walker v. Chapman, 22 Ala. 116; 17 Ala. 440; 2 Ala. 305; 3 Humph. 157. R. W. WALKER, J.— [Jan. 30, 1861.]— 1. The Code provides, that "charges moved for by either party, must be in writing, and must he given or refused in the terms in which they are written ; and it is the duty of the judge to write 'given' or 'refused/ as the case may be, on the document, and sign his name thereto; which thereby becomes a part of the record, and may be taken by the jury with them on their retirement." — Code, § 2355. Under this law, when a party asks a proper charge,. he has the right to have it given in Hie terms in which it is asked; and, in order that he may have the full benefit of it before the jury, he may demand that it shall be taken with them, so as to be subject to their examination, on their retirement. ' >ne of the purposes of the law is, that there shall be no misunderstanding, on the part of the OF ALABAMA. 361 Miller v. Hampton, ailm'r &c. jury, as to the written charges given or refused by the court; and this end is much more surely attained by having the charges before the jury during their delibera- tions, than when the\ r are simply read to them by the court, and then withheld from their inspection. When written charges are asked, and either given or refused, the law makes them a part of the record — as much so as the depositions, or other documentary evidence read on the trial ; and both alike should be subject to the inspec- tion of the jury during their retirement. Where numer- ous charges in writing are asked by counsel, some of which are given, and some refused, it might often happen, if the charges were withheld from the jury, that they would fail to recollect the substance of the charges given, or even confound those which had been given with those which were refused; and in this way serious injury might result to one of the parties. In cases such as those we have supposed, it would be as reasonable to compel the jury to depend upon their memory as to the contents of the documentary evidence introduced on the trial, as to deny them the possession of the written charges upon the law of the case given by the court. It follows, that the court erred, in refusing to permit the jury to take with them, on their retirement, the written charges which had been given at the instance of the defendant. — See Polly v. McCall, at June term, 1860. 2. The only other question, which we deem it necessary to notice, is that which is presented by the several charged of the court, to the effect that the delivery bond estopped both the defendants from denying that they had poe sion of the slaves at the time of the service of the writ. "The law of estoppel is not so unjust and absurd, as it has been too much the custom to represent. The prin- ciple is, that where a man has entered into a solemn en- ment, by and under bis hand and seal, as to certain . he shall not be permitted to deny any matter which he has so asserted."— /', r Ta niton, J., in Bowman v. Taylor, l* Ad. & Ell. 278. The doctrine oi estoppel has, however, beeu guarded with great strictness; not because 21 362 SUPREME COU RT Miller v. Hampton, adni'r &c. tin.- party enforcing it necessarily wishes to exclude the truth, for it is rather to be supposed that that is true which the opposite party has already solemnly recited ; but because the estoppel may exclude the truth. Hence, estoppels must be " certain to every intent, and are not to be taken by argument or inference ;" for no one shall be denied setting up the truth, unless it is in plain con- tradiction to his former allegations and acts. — Co. Litt. 352 (b); 1 Greenl. Ev. §22; Bowman v. Taylor, 2 Ad. & Ell. 278-9. The delivery bond, executed by the defendants, is set out in the record. The condition, after reciting the issu- ance of the summons against the defendants, and that the sheriff was commanded thereby to seize and take in possession certain slaves, states that, by virtue of said summons, the sheriff "did take possession of said slaves." It then proceeds — "now, if the above-bound L. C. and M. R. Miller shall well and truly deliver the above-mentioned slaves to the said J. W. Hampton, administrator as afore- said, within thirty days after judgment, in case the said Millers fail in the suit, and p;iy all damages of said prop- erty, and costs, then the foregoing obligation to be void; otherwise, to remain in full force and effect." There is no express acknowledgment in the bond that the defend- ants, or either of them, had possession of the slaves at the time of the service of the writ, or the commencement of the suit; nor is their possession a necessary implica- tion from any fact recited in the bond, or from the act of the defendants in executing it. The purpose of the bond was not to admit the possession of the slaves by the de- fendants, hut merely to secure the delivery of the property, and the payment of the costs and damages to the plain- tiff, in case he should succeed in the action. The bond might have been given in the terms in which it was exe- cuted, whether the defendants had possession or not, or where only one of them had possession. As a general rule, where, at the commencement of the suit, a slave is in the possession of the defendant's bailee for hire, for an unexpired specific period, the defendant cannot be held OF ALABAMA. 363 Miller v. Haraptoo, adm'r &o. liable in detinue. If, in such a case, the sheriff was di- rected to take possession of the slave, the bailor might certainly give a deliv ! in the terms ot the one set out in this record, without being thereby estopped from showing in his defense on the trial, that, he was not iu possession of the property al the service of the summons. Tin- oiilv facts distinctly recited are, that the plaintiff had obtained a writ or summorfa against the defendants; that by said writ the sheriftVas commanded to ind take in possession certain and that by virtue thereof the sheriff did take possession of said slaves. There is no estoppel by y ] .<-v.(\, unless the matter is distinctly alleged, and with certainty to every intent. Such an ppel cannot I by intendment or implica- tion to matters which are not clearly within its terms. Naglcc v. I: _;.!-.,. 7 r,,in\ L85, 199j McCom.bv. Gilkejr, 29 Miss. 140 '..mpbeii v. Knight, 11 Bhepley, 2 Smith's Lead. ■ Parsons Contr. 340 (c), and As the recitals of this bond do not admit pos •siou. ami sis the making; of such admission was not the purpo&e to : ed by the execution of the bond, it cannot opei technical estoppel by deed. Nor can the act of the defendants in executing the bond constitute a(\ estoppel I an r admission of a party from the rani, of evi i the dignity • steut with i ' n, a.,(i it met of the pai ;y by wliotn Jit to I • tMppel, that he Would be injured b\ alio' > be ini I tent with it — -'•• . _i Ala. 4 . er v. Darby, I ■ J; Hunlej v. Hun . '.'1; mi. v. \ I izell v. Qdaf),8 Hill, . nith'H L 5th Am. • „ -7 ; . I"'S warn ing place, delivery bond i- with tb< t which the ex.-: nded t< that 364 SUPREME COURT Miller v. Hani]iton, adm'r &c. defendants. For the bond might well have beer, executed by both defendants, although the property was in fact in the sole possession of one of them ; or, as we have before suggested, the bond might have been executed by.'botb defendants, although the property was in the po of neither, but in that of their bailee for hire. If the or admission is susceptible of two constructions, one of whieh is consistent with the fact sought to be proved, the party would not be concluded from establishing it : he- cause to do so might operate to detent a man's rights by argument or inference, which is not allowable. — Ware v. Cowles, 24 Ala. 44'.». In like manner, it cannot be pre- tended that the act of the defendants has in any manner influenced the conduct of the plaintiff. It is not shown that he has taken any step in consequence of the execu- tion of the bond, whieh he would not have taken if the bond hail not been given. The summons had been issued, and the property seized under it. before the bond was •executed. The issuance of the summons, and the seizure of the property, were the cans.', not the consequence i>rvrM- o? power, for recovery I. E ' tntlne. — A plantation, about five mil a ih ■ town in which t lie husband resided at the time of his h, from which he drew his Bupplieg Mid derived his oniire in- come, and tin- aUpeiinh of, A'kicu constituted his only bu-i: not bo connected with bis residence, (I i entitle the widow to the possession Or rents thereof until her dowi (A. J. Walker, ' '. J.,dissenti 9 ird me*n« pro/ft ■wire then er dower hoe been allotted to the widow by the probal court, she may come into equity - for its detention ; and the T her damages, where the husband left rx ne-half of the rent, from the death of her 1 iiaiid. until the assignment of dower. '.-. — If the eX( i •* can :>■'. with the lab t ;.-all the debts and f admiuistratioii out of the income, thereby saving the entire personal estate for distri- bution, and distributes to the widow, under an order of the probate court, her distributive share of the residue of such income, tit u ;. - i, to the widow's claim lor mesne profits; if be acted in good faith, he is entitled Lo it credit out of the a for the amount of dam i him by her; and it' the amount received by her as a distributee exceeds her pro] er sh t • be seer tain ed after deducting the amount of her recovery from the entii e fund for distribution, he may, under appropriate plead- the balance from her, and have it adjusted in the suit for tin biie- profits. Appeal from the Chancery Court of Marengo. Heard before the Hon. Wade Keybs. The bill in this case was filed by Mrs. Agnes McAllis- ter, the widow of William McAllister, deceased, against the executor oi said decedent, to recover the rents of the plantation belonging to the decedent, from the time of his death until her dower was assigned to her under uu OF ALABAMA. 367 McAllister's Executor v. McAllister. order of the probate court. The decedent died in Octo- ber, 1853, leaving no children or their descendants; hav- ing executed and published his last will and testament, which was duly admitted to probate after his death, and of which Lewis B. McCarty, the defendant, was appointed the executor; and being seized and possessed of a house and lot in the town s-f Demopolis, in which he resided at the time of his death, and a plantation about five miles distant in the country, which contained about eight hun- dred acres. The widow dissented from the will, within the time prescribed by the statute, and afterwards institu- ted proceedings in the probate court for an allotment of her dower; and her dower was allotted to her, by com- missioners appointed by said probate, court, on the 14th January, 1856. The bill alleged, that the decedent "resided on and cultivated said plantation, from the year 1820, until January, 1851, when he removed to the town of Demopolis, (about five miles distant therefrom,) for the sake of comfort and society, and for no other purpose; that he continued the cultivation of said plantation as be- fore, was engaged in no other business than that of plant- ing, derived all his income from said plantation to the time of his death, and all the supplies for the support and consumption of his family, except sugar, coffee, and similar articles of foreign export, as well after as before ■aid removal to Demopolis; that said plantation was in fact, at the time of his death, but an appurtenance to residence in the town of Demopolis, and connected therewith;" and that said executor had been in the • ii of said plantation, and in receipt of the rents and profits thereof from the time of his appointment and qualification. The complainant claimed that she was "entitled to the rents of said entire plantation, from and after her husband's death until dower was assigned her, under and by virtue of her right to the possession th< until the assignment of herdower, together with iut on said rents}" and added the general prayer, tor other and further reli The executor filed an answer to the bill; denying that 368 SUPREME COURT *~ McAllister's Executor v. McAllister. the plantation was appurtenant to the decedent's resi- dence, or connected therewith, or that the complainant was entitled to any portion of the rents; but admitting all the other allegations of the bill. He alleged, also, by way of defense, that with the proceeds of the crops raised on the plantation he had paid all the debts of the estate, with the expenses of administration, and, under an order of the probate court, had distributed one-half the residue- to the complainant, as a part of her distributive share of the personalty; and he insisted, that she was thereby estopped from asserting any claim to the rents. By agreement between the parties, it was admitted, "that the decedent drew all of his supplies from said plantation during 'his life-time, and owed money and large debts at the time of his death ; that the defendant, as executor, had cultivated four hundred and thirty-five acres of said plantation, from 21st August, 1854, until the 14th December, 185G, when the complainant's dower was assigned to her; that said land was worth, by way of rent, $2 50 per acre; that the crops raised on said land by said defendant, during the time aforesaid, were sold by him for $5,101 58, of which amount $3,553 43 was applied by him to the payment of debts, being all the debts of the estate; that the complainant dissented from the will, and took one-half of the property after the pay- ment of debts; that a balance of $1,875 66, after pay- ment of debts, was left in said defendant's hands, arising from the proceeds of said crops, as ascertained by a de- cree of the probate court of said county, on a settlement bad before the institution of this suit; and that one-half of this amount, $937 83, was decreed to complainant on said settlement, and paid to her by said defendant." On final hearing, on bill, answer, and admitted facts, the chancellor held the complainant entitled' to the entire rents of the plantation, and ordered nn account to be taken by the master; and his decree iff now assigned as error. I. W. Garrott, for appellant. OF ALABAMA. 369 McAllister's Executor v. McAllister. Jno. T. LoiMax, contra. A. J. WALKER, C. J,— [July 9, 1861.]— The com- plainant's deceased husband removed from his plantation, in 1851, to a town distant about five miles, and thence- forward until his death, in 1853, resided in the town; drawing his supplies from the plantation, having no busi- ness save the superintendence of the plantation, and no income except from the plantation. The majority of the court are of the opinion, that the plantation of the de- ceased' was not, within the meaning of section 1359 of the Code, "connected with the dwelling-house where the de- ceased most usually resided next before his death" and that the widow was not entitled to the possession of the plan- tation until her dower was assigned her. They think, that the same reasoning which would make the plantation so connected in this case, would produce the same result^ the plantation were a hundred miles distant from the residence, and would give the widow the possession, as her quarantine,- of two or more plantations w T ithin a few miles of the residence. They think, that to hold the plantation in this case to be within the statute, would be inconsistent with the spirit and intent of the law, and would establish a precedent which might lead to most unjust and unreasonable consequences. I would myself prefer a different conclusion, and I think the previous decisions of this court sustain the widow's right to possess the plantation until her dower was assigned. — Pinckardv. Pinckard, 24 Ala. 250; Smith v. Smith, 13 Ala. 329. [2.] The complainant had a right to come into chancery to recover damages for the detention of her dower; and the measure of her damages would be one-half the rent, (the deceased having left no descendants,) from the husband's death, until the dower was assigned. — lYrrine v. Perrinc, 35 Ala. 644; Blatter Y. Meek, ib. 528; Smith r. Smith, 13 Ala. 829-886.' [3.] As a defense to this suit, it is said by the defend- ant, that he carried on the plantation, and from the income he discharged the debts of the estate, leaving the entire 370 SUPREME COURT McAllister's Executor v. McAllister. malty to be divided; that there was a large balance in his hands, after the payment of the debts and expenses of administration ; and that one half of this balance was, under a* decree of the probate court, paid to the com- plainant. The argument, we suppose, is, that the com- plainant, in having the income of the plantation appro- priated to the payment of the debts of the estate, and the personalty thus saved from sale to pay the debts, and in receiving one-half the balance of the income, has received the benefit of one-hajf the rent of the land. The income from the plantation was the product of the soil, the labor of the slaves aud animals, the implements of husbandry, and the skill and industry of the supervisor, undistin- guishably commingled. It is not true, therefore, that the income stood to the complainant in the place of the rent of the land. It was the product of the commingled ele- Ifci.eiits above stated, one of which was the use of the land; and to one-half the benefit of all the others she was entitled as a distributee of the estate. By virtue of aright altogether distinct from her dower, she was en- titled to her distributive share, after the payment of debts and expenses, in the product of all the agencies employed, except the use of the land ; aud to one-half that she was as dowress entitled. The doctrine of election obliges a party, having inconsistent rights, to choose between them. No such ineonsistent rights exist here, between which a choice could have been made. The complainant eould not have given up the income derived from the land, or the benefit accruing to her from the discharge of debts and expenses out of it, without at the same time yielding up her right as a distributee, which she could not be re- quired to do. If, however, the executor in good'faith cultivated the land, and the distributees have accepted the benefit of his U9e of the land, he is entitled to a credit out of the assets for the rent which may be recovered from him by the complainant. — MoCrelis* v. Hinkle, 17 Ala. -J59; Gerald v. Bunkley, ib. 170. And if, upon the recovery by the complainant of her rents, it should be the case, that, with OF ALABAMA. 371 Cook v. Baine. the charge upon the estate thus superadded, the amount received by the complainant, as a distributee, should ex- ceed her share, then the defendant would be entitled to- recover the excess from her. — Sellers v. Smith, 11 Ala. 264. Should the defendant have such right against the com- plainant, we see no reason why the balance should not be adjusted in this ca9e ; and if necessary, the pleadings may be amended for that purpose. Reversed and remauded. ■il COOK i-5. BAINE. [trespass AGAINST SHERIFF, dv purchaser from defendant in execution.] 1. Right of defendant in execution to sell or exchange property exempt from levy and sale. — The act of Fob. 14', 1854, (Session Acts 1853-4 r p. 243,) repealing aection 24t'4of the Code, also repealed the prior aotof Feb. 7. {tb. 69*) amendatory of said section ; and the repeal of these statutes removed all restrictions on the right of the de- fendant in execution to sell or dispose of property exempt from levy and sale. 2. What property is exempt from levy and sale. — If the defendant in execution, being the head of a family, owns but one horse, and no mule or oxen, the horse is exempt from levy and sale under execu- tion, (Code, 2 24G2,) although said defendant also owns slaves. 8. Action by purcha* • making levy, — A purchaser from thedefen lant in execution, of property exempt from levy and sale, may maintain an action against the sheriff, for a subsequent levy and sale, without making the affidavit required by the statute (I from the dHendant in execution. Appeal from the Circuit Court of Choctaw. Tried before the lion. C. W. Rapier. Tii i was brought l>y William A. Baine, against John P. Cook, to recover damages for the tortioua seiz- ure and sale oi' a horse; and was commenced on the 2 372 SUPREME COURT Cook v. Baine. 21arcb, 1859. No pleas appear in the record. The bill of exceptions is as follows: "On the trial of this cause, there was proof tending to show, that the plaintiff pur- chased the horse in controversy, with his wife's money, from one "W". D. Henson, to whom said horse belonged at the time of said purchase; that said Henson then re- sided in this State, and was a man of family, and had no other horse, nor any mule or oxen, but had negroes; that the defendant, who was the deputy sheriff of said county, had an execution in his hands against said Henson before and at the time of said purchase by plaintiff, and afterwards levied said execution on said horse ; that the horse was a work-horse ; that said Henson, after the sale to the plaintiff, removed from the State, with his property; and that no claim was made for said horse, under the provis- ions of the exemption law. The court charged the jury, among other things, that if there was an execution in the defendant's hands against Henson, and said Henson was then a man of family, and resided in this State, and had a work-horse, and no other horse, uor any mule or oxen, and sold said horse to plaintiff before the levy of said ex- ecution, — then, under these circumstances, there was no lien on the horse in the hands of the plaintiff; and if the defendant afterwards levied on the horse, he would be a trespasser, as against the plaintiff, although no claim of exemption, by affidavit or otherwise, was made by the defendant in execution." The defendant excepted to this charge, and. he now assigns the same as error. G. F. Smith, for appcllaut. T. B. Wetmokk, contra. STONE, J.— [Jan. 21, 1861.]— The legislation of the session of 1853-4, in regard to property exempt from ex- ecution, is somewhat confused. Two several statutes were passed at the same session, bearing on section 2464 of the Code.— See Pamphlet Acts 1853-4, pp. 69 and 242. Section 2464 of the Code had provided, that " neither the head of the family,* nor any member thereof, has the OF ALABAMA. 373 Cook v. Bainc. power to sell or dispose of the property thus exempt from sale or levy; and if sold and taken possession of by the purchaser, or if abandoned by the family, by the death or dispersion of its members, is liable for the debts existing at the time the exemption was claimed." The act approved February 7th, 1854, (Acts, 69,) declared, "that section 2404 (of the Code) be so amended, that the head of any family may exchange the property reserved for the use of said family, for property of like kind, or tor other property exempt from sale or levy, without sub- jecting said property to sale or levy in the hands of the transf'erree." Then came the act approved February 14, 1854, which declared, "that section 2464 of the Code of Alabama be, and the same is hereby, repealed." — Pamph- let Acts 185:3-4, 242. It will be seen that the act of February 7th, 1854, was but a modification of section 2464 of the Code. It only removed some of the restraints which the Code had im- posed on the power to sell and dispose of. property exempt from sale or levy. It might appropriately appear as a proviso to section 2464; thus limiting the operation of the restricting clause. In such case, its language would be, '•provided, fl>"f thi head of anyfamty may exchange any property reserved for the use of said family, for property of like kind, or for other property exempt from sale or levy, ivith- out subjecting said property to salt or levy i». the hands of the tranferree." The second section of the act of February 7th was but an amendment of section 2464 of the Code, and had no field to operate upon, except that which had been occupied 1>y thai section. It follows that, when sec- tion 2464 of the Code was repealed by the later statute of February 14, the second section of the act of Febru- ary 7th had nothing to operate upon, and fell also. This the question for our decision, freed from the pn >\ i-iniis I'H'l real rid ioua which section 2464 of the Code had imposed. [2.] This 'or wrongfully taking and disposing of a work-in I property of Mr. Baine. The seizure complained of was a levy on the horse by Mr. -.74 SUPKKM E COURT Cook v. Baine. Cook, as deputy sheriff, under an execution against one Henson. Henson had owned the horse while the execu- tion was in the hands of the sheriff; and the horse was thus liable to the execution, unless section 2462 of the Code protected him from levy and sale. Henson, during the time the execution had been in the sheriff's hands, was a citizen of Alabama, the head of a family, and owned no other horse, mule or oxen. It is thus clear that the said work-horse was exempt from levy and sale all the time he was owned by Mr. Henson ; and the law, imposed no restraint on his right to sell and dispose of him.— See Code, § 2462, subd. B. [3.] Mr. Bailie, then, by his purchase, became the rightful owner of the'horse ; and there was no lien upon the property, which followed it into his hands. — See Simpson v. Simpson, 80 Ala. 225. Can he maintain this action for damages against the officer for making the levy ? Section 24G5 of the Code enacts, that " no sheriff, or other officer, levying on property exempt from execu- tion, is liable for any damages therefor, unless the defend- ant, or soriYe other person tor him, make affidavit that the property about to be levied on is exempt from execution, and exhibit the same to such sherifl or officer." The question arises, does this section of the Code bear on this case, or is it confined in its operation to cases in which the defendant in execution is the plaintiff? We confess we find difficulties in any solution we may give of this question. We hold, however, that its language confines it to cases of -nits by the party in whose favor the ex- emption is claimed. The affidavit is required to be made by the defendant, or some btheY 'person for him; and when the affidavit is made, and delivered to the officer, he is required to uelicer the property, on demand, to the defendant. Code, § 2480; Acts 1858-4, p. 69. Under these views, it was not necessary to the maintenance of this action, that affidavit should be made pursuant to section 2465 of the Code. Judgment affirmed. OF ALABAMA. 375 Barker v. Bell. BARKER vs. BELL. [real action in* nature of ejectment.] 1. Valid//]/ of unrecorded mortgage ; general charge on evidence. — Tn the absence of actual notice, an unrecorded mortgage is void, as against a purchaser at execution sale against the mortgagor ; consequently, where the plaintiff claims under a mortgage, and the defendant under a purchase at execution sale against the mqr.tgagor, a gen- eral charge to the jury, in favor of the plaintiff's right to recover, is erroneous, unless it is proved that the mortgage was duly re- corded, or that the defendant had actual notice of its existence. 2. Sale of mortgaged premise*, under execution at late, for part of mortgage debt. — In this State, a sale of mortgaged lands, under execution at law, for a part of the mortgage debt, passes no title or interest to the purchaser, unless there has been a previous surrender of the legal title by the mortgagee; and such surrender cannot be implied, in a court of law, from the facts, that he was present at the sale, made no objection to it, and afterwards received from the sheriff the proceeds of the sale ; consequently, the lien of the mortgage is not thereby discharged, nor is fhe mortgagee, or a subsequent purchaser at the mortgage sale with notice of the facts, thereby estopped from recovering the land in an action at law. Appeal from the Circuit Court of Dallas. Tried before the lion. Nat. Cook. This action was brought by Mrs. Matilda Bell, against William X. Boothe, tenant in possession, to recover t ho ession of two town-lots in Cahaba, with damages for their detection; and Stephen B. Barker, the landlord of Boothe, wag made a party on his own motion. The plaintiff claimed the lota under a purchase at a Bale made by .John 8. Mayes, as the administrator of John K. Bell, deceased, under a mortgage executed to said Bell by one Jeremiah Duckworth; while the defendant asserted title under a purchase at sheriff's sale, under sundry executions against said Duckworth. doe. of which was in favorof paid May! b, as administrator of said Bell. ( >n the trial, as the bill uf exceptions states, the plaintiff read in 376 SUPREME C OURT Barker v. Bell. deuce, "after proving its execution and probate," the mortgage from Duckworth to Bell, (which was dated the 29th November, 1855; was given to secure the payment of two promissory notes, each bearing even date with the mortgage, and payable on the 1st January, 1857, and 1858, respectively; and contained a power of sale, on de- fault being made in the payment of either note at ma- turity ;) and then proved the non-payment of the second note, the advertisement and sale of the premises under the mortgage, her purchase at the sale, and the deed for the premises execuled to her by the mortgagee's admin- istrator, which was dated the 9th March,- 1858. The defendant then proved the sale of the premises by the sheriff, under sundry executions against said Duckworth, his purchase at the sale, and the sheriff's deed to him, which was dated the 2d November, 1857. "It was admitted, that one of said executions against Duckworth was in favor of said Mayes, as the administrator of said John R. Dell, and was issued on a judgment obtained on the first of said notes secured by said mortgage; but that neither said Mayes nor his counsel ordered a levy and sale of said property under said execution, and that said levy and sale were made by the sheriff on his own mo- tion. The defendant proved, also, that Mayes was present at said execution sale, and made no objection to it, and' afterwards received from the sheriff his pro-rata share of the .proceeds of sale.; and that at the subsequent mortgage sale, at which the plaintiff purchased, he (defendant) gave public notice of his possession and claim of title, and that the purchaser would buy a law-suit." On this evidence, the court charged the jur}', "that, if they believed the evidence, they must find for the plain- tiff." The defendant excepted to this charge, and then requested the court to instinct the jury— "1st, that, if the mortgagee, Mayes, sued upon the first note secured by the mortgage, and sold the whole property under an exe- cution on his judgment, (with other executions,) and received his pro-rata share of the proceeds of the sale, such sale destroyed the lien of the mortgage, and the . OF ALABAMA. 377 Barker v. Bell. defendant got a good title against the mortgagee; 2d, that if the defendant was in possession under sueh execu- tion sale, and was so holding, under a boriu-fide claim of title, at the time of the mortgage sale, and gave public notice of his claim at that sale, then the plaintiff got no title by her purchase, und she could not recover." The court refused each of these charges, and the defendant excepted to their refusal. • . The charge given by the court, and the refusal of the charges asked, are now assigned as error. Geo. W. Gay'le, and Tiios. II. Lewis, for the appellant. 1. The sale under execution, at which the defendant pur- chased, destroyed the lien of the mortgage. — 1 IliUiard on Mortgages, 4.30, note; 2 ib. ch. 28, §§ 13, 41 ; ib. ch. 30, §§ 14, 10, 17; Coote on Mortgages, (538,) 612; Pierce v. Potter, 7 Watts, 475; Berger v. Heister, 6 Whar. 210; Freeby v. Tupper, 15 Ohio, 467; Hartz v. Woods, 8 Barr, 471 ; Longworth v. Flagg, 10 Ohio, 300 ; Rebdy v. Burgest, 1 Ohio, 157; Duval's Heirs v. McLoskvy^ 1 Ala. 727; Ridgway v. Longmacker, 18 Penn. LM. ( ; 2 Black£ 245; 2 Rawle, 56; 7 Missouri, 489; lDenio,407; l'Comstoek, 496; 2 B. Monroe, 207. 2. The mortgagee cannot sell the equity of redemption under execution. — Washburn v. Goodwin, 17 Pick. 137; Atkins v. Sawyer, 1 Pick. 351 ; Williams v. Powell, 14 Ala. 476. 3. The mortgagee cannot, alter selling the mortgaged lauds under execution for a part of his debt, proceed against the same lands, in the hands of the purchaser, for the balance of his debt. — Buford v. Smith, 7 Missouri, 4 S '.»; 2 IliUiard on Mortgages, 45. 4. The mortgagee's conduct at the execution sale, in failing to make any objection to it, estops him afterwards setting up any title to the property. — 1 Johns. Ch. 864 . l'i Wendell, 557; 21 Wendell, 5. The plaintiff's purchase was champertous and void. Herbert v. Ilanriek, 16 Ala. 581 ; Dexter & Allen v. Nel- 25 SUPREME COURT Barker v. Bell. 6 Ala. 68; Coleman v. Hair, 22 Ala. 59(5; Abernathy r. Boazman, 24 Ala. 1 V ".>. J. D. F. Williams, contra. — l. v The equity of redemp- tion is subject to sale under execution at law. — (/• § 2455. The sale under execution, at which the defend- ant purchased, conveyed only the equity of redemption, and had no effect on the subsequent mortgage sale. 2. The mortgagee's presence at the execution sale, and his failure to object to it, cannot estop him, or a purchaser from him, from recovering the property at law. — Steele v. Adams, 21 Ala. 5-34; MePherson v. Walters, 16 Ala. T14; Waller v. Murphy, 84 Ala. 591; Brinkerhoof v. Lansing, 4 John. Ch. 66. Li. W. AYALKEK, J.— [Feb. 14, 1861.]— 1. In the ab- sence of actual notice, an unrecorded mortgage is void, . ■i.inst a purchaser at a sale under execution against. t he mortgagor. — Code, §§ 1287-8. The bill of exceptions /purports to set out all the evidence; but it fails to show ■either the registration of the mortgage, or actual notice , to the defendant of tence. A3 the plaintiff was not. entitled to recover, unless the mortgage was duly recorded, or the defendant had notice of its existence, the court erred in charging the jury, that, if they believed the evidence, they must find for the plaintiff. [2.] It is highly probable, however, that proof of notice made, and that this part of the evidence has been inadvertently left out of the bill of exceptions. We shall, then msider the question which would be presented by a record which showed, in addition to the facts now before us, either the due registration of the mortgage, or actual notice of its existence to the defendant at the time of his purchase. In that case, the question would be, whether a sale of the mortgaged property under execution at law, for a part of the mortgage debt, by the direction, or with the knowledge and consent of the mortgagee, and his subsequent reception of the proceeds of the sale from the sheriff, discharge the lien of the mortgage, or k 1A i OF ALABAMA. 079 e.r v. Bell, estop the mortgagee, or ;i subsequent purchaser at the mortgage sale with notice of the facts, from recovering the land in an action at law. In Jackson, daiid, v. liall, (10 Johns. 481,) it v*;t- bold, that where a creditor, Becured by mortgage, brings his action for the deb jr>'d, recovers judg- ment, and issues execution, which is levied, by his direct tion, on the mortgaged premises; and the same are sold, under 8ii ition, toapui having notice of the mortgage, — the hitter acquires nothing but the equity of redemption, and the mortgagee may recover the poi sion by actio') at law. In this State, after a careful con- sideration of the question, it has been held, that the mortgagor's equity of redemption cannot he sold, under execution at law, for the whole or apart of the mortgage ; and the effect of the decision is, that a sale of the property, under &uch execution • nothing to the purchaser. — FoweJ-1 v. Williams, 11 Ala.. 470. iSee, also, '■ : Surges! v. Thomas, ib. 221 ; • ton v. : : \, 4 B. Monroe, 142; Camp v. Coxe, 1 Dev. & Batti Atfcins v. Sawyer, 1 Pick. 851. After i lie law- the mortgage 'tliej.egal estate is the mortgagor has , but an < ji nity of redemption. — l'auihr Barron, •'•_' Ala. 11. As this equity of redemption^ the only interesl whi mortgagor has in the pro]' is all tbat can be ■•■! d unch r execution against hii . : and even this inti . not be sold, if the (xec\ition ■ \ , i' ed pro] ution for the to the purchase r, n with wh, clothed by the mortga . i. it is on: >r can hi ale under AVithout such - irrender, tl [tie is in the moi and only an equity i ption in th< and as the :. inuot be atri 380 SUPREME COURT Barker v. Bell. redeem by such a sale, nothing passes to the purchi Unl ess it can be shown, therefore, in the present c that the mortgagee lias done something which amounts to a surrender of his legal title to the mortgagor, the hit- ter had no interest which could be readied by this execu- tion. Such a surrender is sought to be implied from the fact, that Mayes, the administrator, was present at the execution s:ile, made no objection thereto, and subse- quently received, in part payment of a judgment 'for a part of the mortgage debt, a portion of the money paid by the defendant, it may be true that, when the mort- gagee either directs a sale of the mortgaged property under execution, for the whole or any part of the mort- gage debt, or knowingly sanctions such sale, and receives the proceeds, he would be thereby precluded, in a court of equity, -from afterwards setting up the mortgage title against the purchaser. — See Waller v. Tate, 4 B. Mon- roe, 531. But it is settled in this State, beyond the reach of controversy, (whatever may be the rule elsewhere,) that a parol estoppel cannot operate a transfer of the legal title to land.— McL'herson v. Walters, 16 Ala. 714; Smith v. Muud.iy, IS Ala. 182; Walker v. Murphy, 34 Ala. .191. The largest cflect that could possibly be given to the acts and declarations of the administrator in this case, would be to hold, that they amounted to a statement by him that the title of (he mortgagee was extinguished. Even if we go a step further, and concede that the defendant bought tie laud in reliauce upon this statement, these fa<'t- combined would not, in a court of law. preclude the nor gagee, or a purchaser at the mortgage sale, from a recove y in ejectment against the defendant. — Authorities supra- : : o, Svvin.k v. Sears, I llill, 17; Delaplaiue v. Hitchcock, 6 Hill, 17. W.hcre the mortgage is of real estate, nothing less than a payment, or something equivalent to a payment ot the mortgage debt, a release in writing of the mortgage, or a re-conveyance in terms, can operate, in a court of law, a divestiture of the. legal title of the mortgagee. — See Haddock v. Bulfinch, 31 Maine, 246; Crosby v. Chase, • V OF .ALABAM A. , . 381 3arker v. Bell. 5 Shepl. 309; Hoyt v. Swift, 13 Verm. 129. It has oven been questioned, whether payment of the debt, after the law-day of the mortgage, without an actual re-conveyance, restores the tee to the mortgagor, or will enable him to recover in ejectment against the mortgagee. — See 4 Kent, 133-4, and rotes; Collins w Robinson, 33 Ala. 94; Dotpn •v. Russell, 17 Conn. 140. In this ease, there has been -neither payment of tin- debt, release in writing of the mortgage, nor actual re-conveyance of the fee; and the mortgage title must, id a court of Iqw, stand unimpaired. The rule declared in Wallis v. Long, (16 Ala. 73S.) and Acker v. Bender, (33 Ala. 230,) that the title which is conveyed to the mortgagee may be released at law by a Subsequent verbal contract, providing for the discharge of the mortg.ige, but leaving the debt it was given to secure unaffected, must be limited, as it was in those • applied, to mortgages of personal property. If the subsequent verbal contract was for the release of the mort bt, the (•;;-•• might be different. The debt, even when secured by a mortgage on real estate, may lie released by subsequent verbal contract; and the release ■of the debt has the same effect as its payment. — See 1 Cowcn, 1:2:2; Arraitage v. \Vicklifte, 12 B. .Mo; :-;i7. There are, it is true, decisions to the effect, that the lien of a mortgage is discharged, by a sale under a judg- ment for the whole or a part of tin; debt secured by the mortgage. — Pierce v. Totter, 7 Watts, 477; Berger v. Heister, 6 Whart. 210; Bank v. Chester, 11 Penn. St. Clarke v. Stanley, 10 Barr, 472; Ridgway v. jmaker, I s Penn. St. Li. 215 j Freeby v. I upper, !•"• (>i,io, -4-;; ; Lessee <•!' Fosdick v. HUk, $. 84* But is are made to rest upon reasons which can- not o] with us, because they assume the existence of certain rules of law, which have been denied a ; I- jurisprudence. In Pennsylvania, it seems to be the rule, that the mort- gaged lands may he sold under execution at law for the mortgaged debt; and that, in such case, the -ale Works 332 :■ !M E COURT Barker v. Bell. the Baine effect as though the proceeding were under the mortgage itself. The mortgagee lias the option to pro- ceed, either by scire fadios on the mortgage, or hy aj of debt on the bond; and wlien judgment is obtained in either proceeding, he may sell the mortgaged land. "The writs, it is true, bear different names; but there is no > more virtue in a sheriff's sale on a levari facias, than in a sheriff's sale on a >ohas> The one, as well as the ofh#r, sells the estate; and when the estate is for the mortgage aebt, or any part, the whole estate, 1 and equitable, is sold, unincumbered, to the purcha whatever the name of the writ under which the sheriff acts."— Clarke v. Stanley, 10 Barr, 474, 47G, 478-82; Bank v. Chester, 11 Penn. St. R. 287-8. The very reverse of this is the rule in this State; for the result of the d cision in Powell v. Williams, (14 Ala. 476,) is, that tl mortgaged lands cannot be sold under execution at for the mortgage debt, and that such sale passes nothing to the purchaser. In Ohio, the decisions referred to are placed, partly, on the ground that, by the statute law of that State, lands cannot be sold wit] ai, and for no less p'q two-thirds the app ; and partly, also, on the ground, that a mortgagee, Who causes the mortgaged premises to be sold as the property of the mortgagor* is therein- estopped from setting up his title against the purchaser. It must be remembered, that our doctrine in reference to the application of estoppels en pais to the title to land, does not prevail in either Ohio or Pennsyl- vania. On the contrary, the rule in both of those States is, that the holder of the legal title to kind may, by acts en pafSy opped, even in a court of law, from 4 assert- ■.; his title.— Ilamilti >n v. Hamilton, 4 Barr, 193; Bi v. Barr, 4 Ohio, 35 .Jngharn v. Smith, 10 Ohio, 2. It is obvious, then fore, that the eases to which we have referred, as in ot with the view we have taken of this question, proceed on grounds which our previous decisions have rendered inapplicable here. Judgment reversed, and case remanded. ■ ... OF ALABAMA. 333 Warev. Greene. WARE vs. GREENE. [SUMMAHV PROCEEDING AC.AINST TAX-'M IX ECTOR AND SUKETfES.] 1. Parties. — In a summary 'proceeding against a tax-collector and his sureties, (Corle\ U 2596-97, 2fl (for his failure to pay into the State treasury the taxes collected by him, the unexplained omission of one of the sureties from the notice is fatal to the pro* ling. .' Statute of limitations. — The State not being expressly included in the act of 1S.TJ, (Clay's Digest, 320, . '.mi. ) which prescribes sJx irs a^ the limitation of actions against the sureties of public officers, that statute does not apply ttJ a summary proceock, 3 Burr. 1856; Davis v. Allen, 11 Pick. 466; Brittain v. Allen, 2 Den. 120; Page v. Railroad Co., 1 Foster, 438; 3 Black. Com. '363. • If, however, the soeiety of free-masons is, in Hs financial policy, purely eleemosynary, or charitable, theu the mem- bers of the grand lodge, as such, cannot be said to have any pecuniary interest in the result of the suit; and no other ground ot challenge against these jurors being shown, the ruling of the circuit court, on the hypothesis stated, would be free from error. — Com. v. OVNeil, 6 Gray, OF ALABAMA. 389 Burdine v. Grand Lodge of Alabama. 343; iVJ. E. Churoh v. Wood, 5 Ohio', 283; 1 Greenl. Ev. § 333; Nasoo v. Thatcher, 7 Mass. 398; Phil. Ev., Cow. k Hill's Notes, (edition of 1850,) vol. 3, pp. 58-9. The society known as free-masons has long existed in this country, and in almost or quite every part of it. The purpose and objects of the society have been made public in numerous books, periodicals, and public addresses. From all these sources of information, and from the gen- erally received and accredited judgment of the public, the sole purpose and object with which masonic institu- tions acquiro money and property, beyond their current expenses as a society, (furniture, lights, fuel, stationery, and the like,) are for the bestowal of reliefs and charities to the needy. In addition, the 3d and 4th sections of the act to incorporate masonic lodges in the State of Alabama, tend to confirm the belief that the society is eleemosynary in its aims. Under these circumstances, we hold, that we will take judicial notice, that the grand and subordinate lodges of free-masons within the State of Alabama constitute a charitable or eleemosynary cor- poration. — Mayor of Wetumpka v. Winter, 29 Ala. GGO; Salomon v. The State, 28 Ala. 88; Dozier y. Joyce, 8 Por. 303; LamptoH v. Haggard, 3" Mon. 149; Jones v. Over- street, 4 Mon. 547; Floyd v. Ricks, 14 Ark. 293; Stephen v. State' of Georgia, 11 Ga. 241; Duncan v. Littell, 2 Bibb, 424; Sterne v. The State, 20 Ala. 43; Ward v. The. Stat?, 22 Ala. 16. It results from what we have said above, that the cir- cuit court rightly overruled the several objections to the jurors and to the witness. [3. J It is also urged, that the circuit court erred in ad- mitting in evil Mice the charter of the subordinate lodge, because of a variance between the corporate name of the grand lodge of free-masons as found in the act of incor- poration, and that by which it granted the charter to the subordinate lodge. In the hading case of thcMayorand Burgesses ^i Lynn, (10 Rep. 124.) it is said, that "variances in syllabiset V and not in sensu et re, are not material." It is further 390 S UPREME COURT Burdine v. Grand Lodge of Alabama. stated, as the rule for determining when Hie variance is immaterial, that the descriptive words used shall import the certain and true name of the corporation. In Newport Me- chanics' Manf. Co. v. Starbird, (L0 N. H, 125,) it is inti- mated as sufficient, "if there is enough expressed to show that there is such an artificial being, and to distinguish it from all others." In the case of Doe, on demise of Major, &c, of Waldon, v. Miller, (1 Barn. & Aid. 699,) the dec- laration stated a demise by "the mayor, aldermen, capital burgesses and commonalty of the borough town of Waldon^' The act of incorporation given in evidence, named the corporation "the mayor, aldermen, capital burgesses, and commonalty of Waldon." The court of king's bench ruled the variance immaterial. — See, also, Mayor, &c, of Stafford v. Bolton, 1 Bos. & Pul. 43; Inhab. of Mid lie- town v. McConnice, Pennington, (N. J.) 500, in margin; African Society v. Yarick, 13 Johns. 38; Midway Cotton Manf. v. Adams, 10 Mass. 360; Inhab. v. String, 5 Ilalst. 323; Milford and Oh'il. Turnpike Co. v. Brush, 10 Ohio, 112; Minotv. Curtis, 7 Mass. 444; Hagerstown Turnpike Road v. Creeger, 5 liar. & Johns. 122. In the case from 10th New Hampshire Reports, cited supra, it was said, that "the alteration or transposition of a word in the name [of a natural person] frequently makes an entirely different name; while the name of a corporation frequently consists of several descriptive words, and the transposition of them, or an interpolation, or omission, or alteration of sonic- of them, may make no essential difference in the case." in Smith v. Plank-road Co., (30 Ala. C63,) we said, "there is a well-marked distinction between a misnomer, which incorrectly nanvis a corporation, but correctly de- scribes it, and the statement in the pleading of an entirely different party." — See, also, McWalker v. Branch Bank, 3 Ala. 153: Crawford v. Bank, 4 Ala. 313; Smith v. Br. Bank, 5 Ala. 26; Hancock v. Br. Bank, {6.440; Snel- grove v. Br. Bauk, ib. 295; Crawford v. Br. Bank, 7 Ala. 3«3; Caldwell v. Br. Bank, 11 Ala. 549; Davis v. Branch OF ALABAMA. 391 Ala. & TVnn. Rivers Railroad Co. v. Nabors & Gregory. Bank, 12 Ala. 463 ; Com. Bank v. Fieneli, -21 Tick. 4SG; Angell on Corporations, §§ 98 a, 101, 645, et seq. The name of the plaintiff below, as expressed in the act by which it was incorporated, is the "Most Worship- ful Grand Lodge of Ancient Free-masons' of Alabama, and its Masonic Jurisdiction." The charter which was issued to the subordinate lodge, to the admission of which in evidence exception was reserved, is in the name of "the Grand Lodge of the State of Alabama, " is directed to certain persons by name, and authorizes them "to form themselves into a regular lodge of ancient free-masons, by the name of Yorkville Lodge No. 131." These marks of identification, we hold, sufficiently show that the char- ter was issued by the "Most Worshipful Grand Lodge of Ancient Free-masons of Alabama," and the only variance consists in the omission of some words, making no es- sential difference in the name.- We think the corporation was identified by words sufficiently descriptive, to let it in as evidence; and, hence, we hold, that in this matter the circuit court did not err. Affirmed. ALA. & TENN. RIVERS RAILROAD CO. vs. ABORS & Gi:K<;!>! I ommoN COt 1. What proqf it mecessai y to Bingh. 305; Sncdicor v. Leacbman, 10 Ala. 830; Clarke v. Bm'rtn, 14 Johns. 3:26; 1 Greenleaf's Ev\ § 87. If the plaintiffs had proved the contract, and then proved that it had hecn fully performed on their part, so that nothing remained to he done but the re-payment of the money, they might have recovered on the common counts. But this- was not done. The evidence showejl the existence, but not the stipulations of the contract. Snedieor v. Leacbman, supra. Judgment reversed, and cause remanded. Ex Parte MAXWELL. [APPLICATION FOK MANDAMUS TO PRORATE COURT.] ; ',id, well sustained. In Palmer v. Oakley, (2 Douglass' Mich. Rep.) it is maintained, that a guardianship, granted to A feme covert, who is incapable 400 SUPREME COURT Ex parte Nor thing ton. of binding herself by contract, would not be- collaterally assailable, notwithstanding the law might require that guardians should execute bonds. — See, also, Russell v. - Coffin, 8 Pick. 143. In New York, the statute required that an administrator should, before receiving letters, execute a bond with two or more sureties; yet it was cided in Bloom v. Burdick, (1 Hill, 130,) that an omission in that particular did not render an administration void. Dayton on Surrogates, 223; 2 Bradford's Rep. 22. See, also, Janett v. State, 5 G-. & J. 27; Ray v. Doughty, 4 BJackf. 115; Westcott v. Cady, 5 Johns. Ch. 335. The distinction between irregularities, which render a judicial proceeding voidable, and the absence of facts which are made conditions precedent, was long since drawn by this court, and has been since steadily main- tained. — Wyman v. Campbell, 6 Porter, 119; Mathesou ■ v. Uearin, 29 Ala. 210. The failure to take the proper administration bond is a mere irregularity, or error, in the proceedings of a court having jurisdiction; and, therefore, the administration of Joseph "VaDevoort wag valid until repealed, and the petitioner is not entitled to an original and primary administration upon the estate. If the former administration is terminated, by death or resignation, an administration de bonis non is the only proper administration. Motion refused. Ex Parte NORTIIING-TOK [ APPLICATION 1 FOR MANDAMUS TO CIRCUIT COURT.] 1. Liability of lunatic for necessaries. — An adult person, who is non compos mentis, is liable on an implied contract for necesffvrieg furnished him, suitahlo to his estate and condition in life; and where no guardian has heen appointed for him, an action .for the OF ALABAMA. ___ _401 Ex parte Northingtohi value of such necessaries must uecessarily be prosecuted against him personally. 2. How lun nd. — When an action is brought against an adult person who is no/i compos ifientis, he inuel be defended by an attorney, to be appointed by the court", if necessary ; and if the court refu s< the plaintiff proceed with his action, "unless ho first have a guardian appointed by the probate court, and no- tify the -■ a irdtan of the p I will be awarded by i!i« OOUrt, at the instance of the plaintiff, to compel the appointment of an attorney for the defendant. Application by William EL. Nbrthington, asthe execu- tor of John D« Frolic k, deceased; for a mandahius, proce- >, or other appropriate writ, process, or order, to be directed to the circuit court of Autauga, to compel that court to allow the petitioner to proceed in a certain cause, therein pending, in which the petitioner, as executor of said Fralick, was plaintiff, and one John R. Williams was defendant. It appeared from the transcript which was made an exhibit to the petition, that said Fralick com- menced an action at law against said Williams, by ordi- nary summons and complaint, on the 25th January, 1800, to recover the sum of $150, alleged to bo due for the use and occupation of a town lot in Frattville ; that at the March term, 1800, it was suggested ; >urt, that the plaintiff had departed this life, that said Northington had been appointed and qualified as hie executor, that the de- fendant had been declared a lunatic by the probate court Qf Autauga, and that he had no "guardian; that there- upon said Northington, as such executor, was made a party to the suit, am] the cause' was continued', in order thata guardian might be appointed for the defendant; and that at the next ensuing term, (Hon. iS'AT. Cook presi- ding.) as shown by the bill of exceptions, the following proceedings were had: "When the canst: was regularly reached and called for trial, tae plaintiff asked for a judg- ment by default, With a writ of inquiry; no appearance having been entered for the defendant, and no plea being filed or offered. Thereupon, Thomas II. Watts e curice, sted to the cofcrt, that the defendant was of unsound mind at the commencement of this suit, and 402 SUPREME COURT Ex parte Northington. had since been declared a lunatic, by the probate court of Autauga, and had no guardian. The truth of this sug-' gestion was not controverted. It was proved, also, that the defendant had no guardian, or committee; and that it was shown to the court, at the last term, that he had been declared a lunatic by the probate court of Autauga, and had no guardian; that the case was continued at that term, in order that a guardian might be appointed, and that no guardian had yet been appointed. On this state of facts, the court refused to give or enter any judgment for the plaintiff, or to allow him to proceed; to which the plaintiff excepted. The plaintiff then asked the court to allow him to put his case to a jury, and to prove his cause of action before the jury; and offered to prove that his cause of action was for necessaries furnished by his testator to said defendant and his family, during the year 1859, which were suitable to their rank and condition in life, and were worth at least $100, and that the defend- ant was about forty years old at that time. On this state of facts, the court refused to hear any part of the proof thus offered, or to allow the plaintiff to put his case be- fore a jury, or to proceed in it, unless he would first have a guardian appointed by the probate court, and notify such guardian of the pendency of this suit, and also re- fused to appoint a guardian ad litem for the defendant; to which several rulings and decisions of the court the plaintiff excepted." Goldthwaite, Rice & Semple, for the motion. — 1. Upon the plainest principles of justice, necessity, and humanity, the contracts of lunatics, for necessaries, or things suita- ble to their condition in life, will be upheld, and enforced by action at law, as if the lunatics were of sound mind. Richardson v. Strong, 13 Iredell, 106; Hallett v. Oakes, 1 Cushing, 296; Tally v. Tally, 2 Dev. & Batt. Eq. 887 ; Brown v. Jodrell, 14 Eng. Com. L. 196; Chitty's Medical Jurisprudence, 850, note z; Baxter v. Earl of Ports- mouth, 5 Barn. & Cr. 170; Ex parte Hastings, 14 Vesey, 182; Chitty on Contracts, 134. OF ALABAMA. 403 Ex parte Northington. 2. In such action, "the judgment is properly rendered against the lunatic himself." — Walker v. Clay, 21 Ala. 797. A recoveiy may be had, before a commission issued, or guardian of any kind appointed. — Richardson v. Strong, 13 Iredell, 106. And the necessity of this is apparent, when it is considered, that there is no law to compel any person to accept a guardianship of any kind for. a lunatic. Watts, Judge & Jackson, contra. STONE, J.— [June 28, 1861.]— That; an adult person, who is of unsound mind, can become liable by implied contract, for necessaries suitable to his estate and condi- tion in life, is a proposition upheld alike by reason and authority.— Chitty on Con. 131-2; Baxter u * Earl of Portsmouth, 5 Barn. & Cr. 170; Brown v. Jo'drell, 3 C. &B. 30; Chit. Med. Ju. 350]; Hallett v. Oakes, 1 Cash. (Mass.) 296; Tally v. Tally, 2 Dev. & Batt. 385; Richard- son v. Strong, 13 Ired. 106. And, at least, where no guardian has been appointed for such adult non compos, the suit must, in the nature of things, be prosecuted against him whose estate must pay any judgment that may be recovered. - Kernot v. Norman, 2 T. R. 390; Nutt vi Verney, 4 T. R. 120; Chit. Con. 131-2; Brown on Actions, 301; Clarke v. Dunham, 4 Denio, 202; Walker v. Clay, 21 Ala. 797. [2.] When suit is brought ngainst a person, not an idiot, but who is of non-sane mind, the rule seems to be universal, that he must, if an infant, be defended by guardian; and if an adult, he must be defended by. an attorney, to be appointed for the purpose by the court, if necessary. There is do authority for the appointment of a guardian ad litem, to defend in such a case as this; and the court should not proceed with the trial, without hav- ing the defendant represented by an attorney. — Beverly's •till Rep. 124; 1 Chitty'a PI. 427-8 ; Shelf, on Lu- nacy, ,112: Cameron v. Potttnger, 3 Bibb, 11; Faulkner v. McClure, 18 Johns. 134; Robertson v. Lain, 19 Wend. ; 1 Tidd's Pr. 92-3. 404 SUPREME COURT Sterrett's Executor v. Kaster. The circuit court did not err in refusing to appoint a guardian ad litem for the defendant, nor in refusing to al- low the plaintiff to proceed with the proof in his eause, in the absence of counsel for the defendant. But in refusing to allow the plaintiff to proceed, "unless he would first have a guardian appointed by the probate- court, and notify such guardian of the pendency of the suit," the circuit court erred. The defendant was an adult; and it was the right of the plaintiff to proceed, after having an attorney appointed for the defendant. A rule is ordered to the judge presiding in the circuit court of Autauga county, to show cause why a mandamits shall not issue, to compel the appointment of an attorney for the defendant. STERRETT'S EXECUTOR vs. KASTER. [trespass for injuries to personal Property.] . 1. General oLjection to evidence.— A general objection to evidence, a part of which is legal, may be overruled entirely. 2. Evidence in mitigation of damages. — On the execution of a writ of inquiry, after judgment uy default, in trespass for taking personal property, the fact that the. property was, at and before the levy of the execution, which constituted the trespass complained of, in the possession of the defendant in execution, is competent evidence for the defendant, in mitigation of damages, as tending to show that he acted in good faith in having the levy made. 3. Same. — In such case, the judgment by default estops the defend- ant from showing, even in mitigation of damages, that the plain- tiff had not s icii a title as would authorize a recovery ; yet he may show, in mitigation, that the plaintiff was not the owner of the property, as that fact is not necessarily inconsistent with ths, plaintiff's right to recover. 4. Validity of contract witji slave. — Although the sale of any article to a slave, without the consent of the master, specifying the article, is a penal offense under the laws of this State; yet, if the contract OF ALABAMA. 405 Sterrett's Executor v. K.ister. has boon fully executed, end the property delivered to the slave, it does not lie in the mouth of a third person, when sued by tho master for a trespass to tho property, to allege the illegality of tho contract. Appeal from the Circuit Court of Wilcox. Tried before the Hon. Nat. Cook. This fiction was brought by F. Jv. Beck, as the executor of D. W. Sterrett, deceased, against Henry Raster, to recover damages for the tortious taking of certain per- sonal chattels, consisting principally of articles of house- hold furniture. On the 'execution of a writ of inquiry, after judgment by default, as the bill of exceptions states, "the plaintiff proved, that the goods mentioned in the complaint were worth forty dollars; that the defendant, who had an execution against one Tucker, had said goods levied on and sold, under said execution, as the property of said Tucker, before the commencement of this. suit, and that said goods brought forty dollars at said sale. The defendant theu offered to prove, in mitigation of damages, that said Tucker was in the possession of said goods, at and before the levy of said execution, and, whilst thus in possession of them, claimed them as his own property. The plaintiff objected to this evidence, as illegal and irrelevant, and excepted to its admission by the court against his objection. The defendant then in- troduced another witness, and offered to prove by him, in mitigation of damages only, that prior to the sale of said goods under execution against said Tucker, and at the time of said levy and sale, said Tucker kept a restaurat in the town of Camden, and had said goods in his posses- sion, using them in and about his said business, and claiming them as his own property. The plaintiff ob- d to the admission of this evidence, and excepted to its admission by the court against his objection. The proof shown], also, that whilst said Tucker was thus ping said restaurat, a negro man slave, named Abb, the property of plaintiff's testator, was also in said restaurat, exercising the ordinary duties of a waiter and 406 SUPREME COURT Sterrett's Executor v. Raster. servant about such establishments. The plaintiff offered to prove, that said slave Abb, before said goods went into the possession of said Tucker, had purchased them, and paid his own money for them, and they had been deliv- ered to him ; but did not offer to prove, that said goods were purchased by said slave by and with the consent of his master, verbal or written, expressing the articles per- mitted to be bought, in conformity with the requisitions of the statute in such case made and provided. This evidence the court excluded from the jury, on the defend- ant's objection, and the plaintiff excepted." The court charged the jury, in substance, that the de- fendant had a right to show, in mitigation of damages, that the plaintiff* was not the owner of the goods at the time the action was brought; and that if they believed, from the evidence, that the goods were not the property ■of the plaintiff at the time of the levy and sale under ■execution, they must still find for the plaintiff, but might give *him no more than nominal damages; to whi«*h charges the plaintiff excepted. The rulings of the court on the evidence, and the charges given to the jury, are now assigned as error. Byrd & Morgan, for appellant. — 1. A judgment by de- fault is an admission of record, which estops the defendant from pleading to the merits, or from showing that the title to the propert}' is not in the plaintiff. — Ewing v. Peck & Clarke, 17 Ala. 339; Bryant v. Sheeley, 5 Dana, 530; 1 Tidd's Practice, 562-4, and notes. The declara- tions of Tucker showed title in himself, and, for that reason, ought to have been excluded. — McBride v. Thomp- son, 8 Ala. G52; Abney v. Kingsland, 10 Ala. 355; Dar- ling v. Bryant, 17 Ala. 10. 2. When property is bought by a slave, and delivered to him by the vendor, the title vests in the master, and he may recover it by suit, although his prior consent to the contract was not given. The bringing of the action shows an election by him to ratify the contract ; and third persons cannot be heard to saj', that the contract OF ALAB AMA. 407 St.-rrctt's Executor v. Krister. was illegal on the part of the vendor. — Brandon v. J'. & M.Bank, 1 Porter, 320; Trotter v. Blocker, 6 Porter, 269 ; Stanley v. Nelson, 28 Ala. 514; Bryant v. Sheeley, 5 Dana, 5o0. Watts, Judge & Jackson, contra. — 1, In the action of trespass, the title to the property, the right of possession, and the actual possession, may all be involved ; and a judgment by default, while it estops the defendant from controverting the plaintiff's right to recover, is not an admission that be had the title to the property, nor even that lie had the rightful possession : on the contrary, the extent of the plaintiff's interest is a proper subject for the consideration of the jury in determining the amount of his damages. — Sedgwick on Damages, 475, and notes.' 2. The Contract by which the slave acquired the goods, being prohibited by statute, was absolutely - void, and vested no title in the master; and if he could impart any validity to it by his subsequent ratification, his election to ratify it ought to have been manifested while the goods were in the possession of the slave. — Stanley v. Nelson, 28 Ala. 514; Slfanklin v. Johnson, Ala. 271 ; Sully v. Beatty, L Bay, 258< R. W. WALKER, J.— [Feb. 15, 18G1.]— The familiar rule, that a general objection to evidence, a part of which is legal, may be overruled entirely, disposes of the first two exceptions. A part of the evidence covered by each of these exceptions was, that Tueker was in possession of the goods, at and before the levy of the execution ; and this taet. as it tended to show that the defendant acted in good faith, in having the goods seized and sold as the property of Tucker, was competent evidence upon the question of damages. — Sedgwick Dam, 528-ib [;}.] After ft- judgment by default, the defendant has not the legal right to plead to the merits of the action. Ewing v. Peck k Clarke, 17 Ala. 8d& But, in actions sounding in damages, after judgment by default, writs of inquiry are necessary to ascertain the. amount of injury SUPREME COURT Sterrett's Executor v. Kaster. ; and upon the execution of these writs, matters in mitigation on the one hand, and of aggravation on the other, become the very gist of the inquiry. It is doubt- less true, that it is not competent for the defendant, after judgment by default, to show, even in mitigation of damages, a state of facte which is inconsistent with the plaintiff's right to recover at all, or which would have been a good plea in bar of the action ; as for example, in the action of trespass, that the plaintiff had, at the time of the taking or injury, neither the possession, nor the right to the possession of the goods. — Garrard v. Dollar, 4 Jones' L. (N. C.) 175 ; Long v. Wortham, 4 Texas, 381. But evidence showing that the plaintiff was not the owner of the goods, is not necessarily inconsistent with the fact, that he had either the possession, or the right to the possession, (which is all the title necessary to support the action ;) and, as the extent of the injury sustained by the plaintiff may depend, very materially, upon the ex- tent of his interest in the property, evidence that he was not the owner is, on the one hand, admissible for the de- fendant; and evidence that he w&s the owner is, on the other, admissible for the plaintiff. The admission of evi- dence that the plaintiff was not the owner, does not impair the effect of the judgment by default, as an estoppel upon the question of his possessory right, but simply serves to disclose the extent of the injury inflicted upon him ; for he who has a bare possessory right, is not entitled to the same measure of damafres, as he who has the absolute property. — Sedgwick Dam. 482-3, 530; Brierly v. Kendall, 10 Eng. L. & Kq. 319; Jones v. Lowell, 35 Maine, 53S; Gomptdn v. Martin, 5 Rich. L. 14. [4. J A slave cannot be the owner of property : all his acquisitions, whether by gift, or by the earnings of his labor, belong to his master. It is true that, under our laws, the sale of any article to a slave, without the con- sent of the master, specifying the article, is a penal offense. But, where the contract has been fully executed, and the property delivered to the slave, it is clear that, as respects third persons, the property becomes at once the OF ALABAMA. . 409 Brooks v. Ruff. property of the master; and no subsequent act or contract of the slave, without the master's express or implied con- sent, can divest the latter of his title. In does not lie in, the mouth of a third person, who, without such consent of the master,. purchases, or takes possession of, property which has been sold and delivered to a slave, to say that the slave got possession of the property by a contract which the law declares illegal as to the seller. — Bryant v. Sheeley, 5 Dana, 530; Brandon v. Huntsville Bank, 1 Stew. 320; viregg v. Thompson, 2 So. Ca. Const. Ct. R. 332; Gist v. Toohey, 2 Rich. L. 425; Cobb on Slavery, §§ 258, 261-4, 268. It follows, that the court erred, in rejecting the evidence which was offered, to show that the goods had been purchased and paid for by the slave Abb. AVhat we have said will furnish a sufficient guide to the court below, on another trial, as to the other questions presented by the record. For the error pointed out, the judgment must be re- versed, and the cause remanded. BROOKS vs. RUFF. [trover for conversion or horse.] 1. Extinguishment ar.d subsequent assignment of mortgage. — Where the condition of a mortgage is, tli.it the mortgagor shall save harmless th'e mortgagee against liability ns his surety on a not& due to a third person, the condition is performed, when the mortgagor pro- cures tho cancellation of the note, and the substitution of a. new note in its stead, with a different surety ; and the mortg thereby extinguished, it cannot then b<> assigned to the surety on tip' ii' w note, for his indemnification, even though the assignment be made with the assent of the mortgagor.Jbr valuable considera- tion, and contemporaneously with the cancellation and substitu- tion of the ui 27 410 _'_ PREME Urook> v. Ruff theraort tinst liability on n note as surety for 1 1 1 « mort gor, being afterwards extinguished by the cancellation ol the npte, and (ho substitution »? n new note in its stead, with si different surety : a verl tnent between the inori fee, and the surety on the new note, made - ram ously with the cancellation and substitution of tlie notes, to effect that, the in-., iall stand as a security for the su con^ val'd mortgage as between th Appeal from the Circuit Court of Lownd- TrlGd befote tile lion. Xat. Cook. This aotion was brought by Ransom C. Ruff, Andrew J. Brooke, tq recover damages for the convei pf a horse; and was commenced oh the 2d Septem -. The plaintifTclaimed the horse under a mortg one S. P. Brownlie, and the defendant Held him imder n purchase from said Brpwnlie., It appeared that Brownlie, in April, 185$, executed a mortgage on the borse, with other property, to one Samuel Ivey ; the con- dition of which was, that he should "save the said I har;< rainst liability on a promissory note !'■ payable toRahdall Cheek, and due the 1st January, 1 wlii'-' aid Ivey had signed aa the surety ot said Brown- lie; and this mortgage w*as duly proved and recorded. Ivcy '- barrfe uneasy about his liability on the note, and sent an agent to Brownlie, proposing to make some new arrangement about the matter. Brownlie offered to let him I tve a negro woman and child, at the price of §1 1 whirl: [vey was willing to give; but the title to the ne- groes waa in Ruff, the plaintiff, who was not willing to let Ley have them at that price, but said that he pre- ferred to t.:ike them himself. Ivey then insisting thathe should be released from liability on the debt to Cheek, "it was agreed among them, that Ivey should be released that Raff should become bound to Cheek for the debt, and that Ivey should assign . the mortgage to Rufh Brownlie, Ivey and Ruff assented to this ; aud Cheek being willing to take Ruff instead of Ivey, the papers were exeouted in pursuance of this agreement." Ivey's MA. ■>oks v. Ruff, note to Check was then delivered up to him; a bill of exchange, in lieu of it, was drawn by Ruff, and c . ed by Brownlie; and Ivey endorsed on the mprl as- inent in the following words: "For vain.' r< '-rived, I hereby transfer this mortgage, with all tl h .it secures to me as §. i'. Brownlie's security. b 'ied, to Ransom C. Ruffj of said county and State,. In wit:. ess whereof" &o. These transactions were had on the 5th January, 1856, as shown by the .it. The record does no!, state any connected with the defendant's purchase of the horse. The bill of exchange was paid at maturity, by E 'he court charged the jury, that if the red, front the evidence, that Ivey, the mortgagee, assigned the Kjorl gage to plaintiff, with the asscut of Br- tn'd because plaintiif had agreed to become bound I - sek in the place of Ivey, and that he did bee- q the consideration for tb uneut oi Lort- gage was good and valid, and the assign me:; I to plaintiff all the rights and equities of ly< . , ed, from the <•. . that plain' paid the debt to Cheek, then, so soon as 1 e did . this, lie had a right to the possession of the h> . I; arid that. if the proof showed that plaintiff had paid Cheek before suit brought, and that the in his ; ; ter this payn: er him, 1 1 Tin . to whi • A'.epted, ; ; - signed as en . Ci . cell tion ol the note on which 1 m the ■ f the bill of -Bonhi • Bamner v. Ba< h .•'. ler, 3 ) m ll\ 412 SUPREME COURT Brooks v. Ruff. Tiios. Williams, contra. — The assignment of the mort- gage was contemporaneous with the cancellation of the note ami the substitution of the bill of exchange, and was for valuable consideration; and the mortgagor was a party to the agreement. All the elements of a valid con- tract are shown ; and the defendant is not in a position- to impeach it, as he does not show how or when his rights accrued. A. J. WALKER, C. J.— [Feb. 11, I861.]-The mortgage in this case was an assignment, upon a specified condition ; and upon the performance of the condition, the mortgage was extinguished, and the title revested in the mortgagor. This proposition necessarily results from the fact, that the mortgage is but a security for the discharge of a par- ticular debt or duty ; and it is well recognized in the law- books. — 1 Hilliard on Mort. 447; Gunn v. Young, 2 St. kl\ 160; Deshaza v. Lewis, 5 St. & P. 91. The condition of the mortgage was, to save harmless the surety of the mortgagor. This the mortgagor unques- tionably did, when he obtained a cancellation of the note, upon which the mortgagee was his surety, and substitu- ted a bill of exchange, with a different surety, and ob- tained a discharge of the mortgagee. The mortgage was thus extinguished; and being extinguished, the assign- ment of it could not resuscitate it, although the assign- ment might be upon a valuable consideration. The cases of Bonham v. Galloway, (1-3 III. 68,) Mead v. York, (2 Selden, 449,) Abbott v. Upton, (19 Pick. 434,) cited upon the brief of appellant's counsel, conclusively sup- port that position. — See, also, 1 Hilliard on Mort. 461-2; Sumner v. Bachelder, 30 Maine, 35. Even the consent I of the mortgagor, that the mortgage should be assigned, could not, of itself, revive it. The charge given by the court Avas erroneous, because it predicated the plaintiff's right of recovery upon the assignment, for a valuable consideration, of au extinguished mortgage, with the con- sent of the mortgagor. [2.] We see no reason why a mortgage of personalty, , OF ALABAMA. All Ward v. Neal. valid inter partes, may not be made by verbal contract. — 2 Hilliard on Mort. 520; Morrow v. Turney, 35 Ala. 136. Such a mortgage would, by virtue of our registration statute, be void "as to purchasers for a valuable consid- eration, mortgagees, and judgment creditors without no- tice," (Code, § 1288;) but we think it would be valid as to the parties, and others not protected by that statute. The evidence conduces to show, that there was a verbal agreement, that the mortgage should stand as a security to the plaintiff.. This agreement, if it existed, would amount to a verbal mortgage in favor of the plaintiff, and would avail against the defendant, uuless he could show that he was one of the persons protected by the registration law, or unless his interest accrued be- fore the makiiiii of the verbal mortgage. The evideuce does not show that the defendant is oue of those persons. What we have already said will, probably, be sufficient to guide the court upon a future trial, and we need not consider farther the questions presented. Reversed and remanded. WARD vs. XEAL. [action fok dahages fok obstruction op ancient LIGHTS.] 1. Easenwnt foundzd on adverse '. — The English doctrine, that a right to have ancient windows unobstructed eafr arise from mere uninterrupted enjoyment for tin- period prescribed by the Btatute of limitations as a bar to actions for the recovery of land, dot prevail in this country. Appeal from the Circuit Court of Madison. Tried before the lion >s. \). Hale. Tins case was before this court, at its January term, 1860, on appeal from the judgment of the circuit eourt 414 SUPREME COURT Ward v. Weal. sustaining a demurrer to the complaint; fthft jbhe 'judg- ment of the circuit court was then reversed, and the ci remanded. — See 35 Ala. G02. The action was brought.by >h Ward, against George W". Neal, to recover dama- ges for an obstruction of the plaintiff's 'ancient windows; and a tria>1 was had, after the reversal, on the plea of not guilty, and the following agreed fjacts: "Plaintiff has title to, and is possessed of, a certain house and tot in the town of Huntsville; and he and defendant are adja- cent proprietors. Plaintiff's said house- has been built, and situ, tod as it was at the time of the injury com- plai ted 6 .. for twenty years; and during all that time the light and air had passed through said windows into his Kouse. His possession has been quiet, exclusive, and upd I. The fence between -the lots of plaintiff and defendant was built, upon -a line which had been agreed upon by preceding proprietors, about the year 1836 or 1838, and was situated live or six feet from plaintiff's Louse, and about eighty feet from defendant's house; and, during all that time, had been a common plank fence, six feet six inches high, made of boards nailed upright, at I an interval of one inch between them. The old line, to this compromise line, rah farther from plaintiff's se. The distance from the ground, to the top of the windows in plaintiff's house, is ten feet ten inches; and from the ground to the' bottom of the windows, five feet iive inches. About the loth September, 1856, the de- fendant oivcted a close battery of weather boarded planks 1 fence, but on his own side of it, about four teei: feet high, which excluded the light and air from plaintiff's said windows. This action was commenced on 23d January, 1858. If, on these facts, the plaintiffs entitled to recover, the damage shall be assessed at $25." On these facts, the court charged the jury, that the plain- tiff was not entitled to recover; to which charge the plaintiff excepted, and he now assigns the same as error. Piiela' :lan, for appellant. "V ira. OF ALABAMA. 415 Ward v. Ncal. STONE, J.— [July 11, 1861.]— The present suit is for obstructing- ancient lights ; and the plaintiff found right of recovery, not upon grant, but upon his uninter- rupted user of the easement for a period which would bar a recovery in ejectment against a trespasser. lie makes noother proof than uninterrupted enjoyment. Will this, without more, ripen into a title by prescription? Under trie English decisions,, ll would ; but, in the .American States, the English doctrine haS not been adopted, save by a few of the States. Speaking of the English doctrine, theYsupreme court of New York, in Parker v. Foote, (13 Wemhdl, said: "-The learned judges who have laid.down this doc- trine, have not told us upon what principle or analogy in the law i! can be maintained. They tell us, that a man may build at the extremity of his own land, and that he may lawfully have windows, looking one upon the lands of his neighbor.— 2 Earn. & Cress^'OSC: 3 ib. 332. The reason why he may lawfully have such windows, must be, because he does his neighbor no wrong; and, indeed, so it is adjudged, as we have already seen; and yet, some how or other, by the exercise of a lawful right, in his own land, for twenty years, he acquires a beneficial inter- est in the land of his neighbor. The original p; is still, seized of the fee. With' the privilege or p ■ taxes and assessments: but the right to build on the land, without which village or city lots are of little or no value, Lets been destroyed by a lawful window. How much land can thus he rendered to the owner, remains yet to ettlcd. Now, what is the acquiescence which con eludes the owner? No one has trespassed upon his land, or' done him a legal injury of any kind. He 1ms submit- ted to nothing but the exercise of a lawful right on the part of his neighbor. How, then, has he forfeited the ficial interest in' his pro] lias neglected to fucur tin building a wall twenty or I high, as the case may be — not for hisowi ;, but Jor the sole purpose of aunoyir. his only remedy. A wanton aet of this kind, although 416 SUPREME COURT Baker, Fry & Co. v. Ingersoll. ' doue in one's own land, is calculated to render a man odious." And the court ruled in that case, that the English doctrine was not applicable to our country, and refused to adopt it. To the same effect are Napier v. Bul- winkle, 5 Rich. Law, 322; Cherry v. Stein, 11 Md. 22-3; Iugraham v. Hutchinson, -2 Conn, 597. See, also, Cris- well v. Clugh, 3 Watts, 330; and the authorities cited in this case when formerly here — 35 Ala. 602. That the length of time during which the plaintiff has enjoyed his windows, is sufficient to perfect his right, if there had been in that enjoyment the properties necessary to constitute an adverse holding, is settled in this State. Stein v. Burden, 24 Ala. 130; Roundtree v. Brantley, 34 Ala. 544; Polly v. McCall, June Term, 1860s "We fully concur in, and adopt the doctrine declared by the supreme court of New York, supra. Judgment affirmed. BAKER, FRY & CO. vs. INGERSOLL. [SCIKE FACIAS ON JUDGMENT.] 1. Pamtt to sci. fa. — On the death of the nominal plaintiff in a judgment, a scire facias to revive it must be prosecuted in the name of his personal representative, and cannot properly be issued in the name of the beneficial plaintiff alone, nor in the name of the deceased nominal plain tiff. Appeal from the Circuit Court of Russell. Tried before the Hon. Nat. Cook. In this case, Allen Matthews, suing for the use of Baker, Fry & Co., recovered a judgment against Stephen M. Ingersoll, in the circuit court of Russell, on the 14th October, 1839. Executions were issued on this judgment OF ALABAMA. 417 Baker, Fry & Co. v. Ingersoll. on the 29th November, 1839, and on the 15th January, 1841; and on the 26th February, 1857, a scire facias to revive it was sued out in the name of said Matthews. By consent of parties, the scire facias was allowed to stand in lieu of a declaration. The defendant pleaded, among other things*, that Allen Matthews, the nominal plaintiff, was dead when the scire facias was sued out; to which plea the plaintiffs demurred. The court overruled the demurrer, and charged the jury, that, if said Mat- thews was dead when the scire facias was sued out, they must find for the defendant. The plaintiffs excepted to these rulings of the court, and they now assign the same as error. D. Clopton, with Chilton & Yancey, for appellants, cited the following authorities: 2 Tidd's Pr. 1095; Bates v. Terrell, 7 Ala. "129; Miller v. Shackleford, 18 Ala. 98; Stewart v. Cunningham, 22 Ala. 628; Smith v. Harrison, 33 Ala. 709. Geo. D. Hooper, contra, cited J elks v. Edwards, 6 Ala. 143; Tait v. Frow, 8 Ala. 543; Gray v. Turner, 8 Ala. 30; Duncau v. Hargrove, 22 Ala. 160; 4 Com. Digest, 239; 1 Rolle's Abr?900. R. W. WALKER, J.— [July 11, 1861.]— The scircfacias, following in this respect the original judgment, was sued, out in the name of Allen Matthews, for the use of Baker, Fry & Co. Matthews, the nominal plaintiff, died after the rendition of the original judgment, and before the issuance of the scire facias ; and the question now pre- sented is, whether this fact is a bar to the proceeding, or whether, on the suggestion of the death of the nominal plaintiff, the scire facias could proceed in the name of the beneficiaries. The Code provides, that "when suit is brought, for the »f another, the death of the nominal plaintiff docs not abate the suit, but it proceeds in the name of the beneficiary." — Code, § 2147. This statute renders an- 418 SUPREME COURT Baker, Fry & Co. v. Ingersqll. necessary the revival of the action, where the nominal plaintiff dies during its pendency; but, where the person who has the legal interest in the cause of action dies, there is nothing in this law which authorizes the subse- quent institution of a suit in the name of such person, for the use of the party having the ^beneficial interest. Such a case is unaffected by statute in this State, and the personal representative must, as at' common Jaw, be the actor of record. And where suit is brought in the name of one person, for the use of another, the defendant may plead, either in bar or abatement, that the nominal plain- tiff was dead at the commencement of the suit. — Jelks v. Edwards, Ala/ 143; Tait v. Frow, 8 Ala. 543. A. scire facias on a judgment is sometimes, for some purposes, regarded, not as a new action, but as a mere continuation of the original suit. Thvrs, it must issue out of tin 3 , court in which the judgment was rendered; . matter which might have been pleaded. in defense of the original actioti, cannot be pleaded in defense of the scire facias ; and no nctv judgment for debt or damages can be rendered on the scire facias,- but the old one is simply called into action by a. judgment that the plain tiri: have execution. — Murray v. Baker, 5 B. Mon. 572; Norton v. Beaver, 5 Ohio, 178-; In other respects, however, the pro- ceeding by scire facias must be regarded as a new suit. Thus, the defendant may plead to it matters subsequent to the rendition of the judgment sought to be revived; and as respects the parties to the proceeding, it is in the nature of an action upon the judgment, and governed by the rules applicable to ordinary suits upon judgments. Consequently, a scire facias can only be maintained in the. name of him who has the legal title to the judgment; that is, in the name of the original plaintiff, or, after his death, of his personal representative. — See Duncan. v. Hargrove, 22 Ala. 160; Hanson v. Jacks, ib. 550; Pick- ett v. Pickett, 1 How. Miss. 267; McAfee v. Patterson, 2 Sm. & M. 595; Gonnigal v. Smith, 6 Johns. 10.G; Crary v. Turner, ib. 53 (note a); Forbes v. Tiffany, 4 Inda. 204; Ensworth v. Davenport, 9 Conn. 390; Smith v. Harrison, OF ALABAMA. 419 Cox, Brainard it Co. v. Foscue. 33 Ala. 709. It follows, that on the death of the nominal plaintiff in a judgment, a scire facias quare executioncm non, must, like an original suit on the judgment, be conducted in the name of his personal representative, and cannot •properly be issued, either in the name of the original par- ties to the judgment, or of the benificiary alone. Judgment affirmed. COX, BRAINARD & CO. vs. FOSCUE. • [ACTION- AGAINST OWNERS OF STEAMBOAT FOli NEGLIGEXCEd 1. Li teamhoatmen, as common carriers, in matter of tran- shipment of freight. — A transhipment of freight is only justifiable in cases of necessity, and, if made in I ice of such necessity as oo ' irrier to liability for the subsequent loss of the freight on the vessel to which it is trans- ferred ; and the mere grounding ofa-steamboat on an inland river, from which she could relieve hcr.-elf, with safety and convenience, by temporarily placing a part of her cargo on the bank, and after- vvarls take it on board again and finish her voyage, does not con- strfoite such legal excuse. Appeal from the City Court of Mobile. Tried before the Hon. Alex. McKinsi This action was brought by P. F. Foscue, against the Hants, as common carriers, to recover damages for the 1 ilea of cotton, which were shipped by the plaint iil on board the defendants' steamb . IJIrick at Mobile, and which were never delivered. The case* \v;'s before this court at its January when the judgment of the city court ':. and the cause remanded. — Seethe report in On tin 1 trial, as appears from the record, the d ifeudants pleaded the general issue, a: 420 SUP REME COURT Cox, Brainard & Co. v. Foscue. special plea averring, in substance, that the cotton was lost by "the dangers of the river and of fire," within the meaning of the exception contained in the bill of lading; and issue was joined on each of these pleas. It appeared from the evidence adduced on the trial, that the plaintiff's cotton was shipped on board of the defendants' boat, Eliza Battle, at Pace's landing on the Tombeckbe river, on the 20th November, 1855; that the bill of lading con- tained the usual exception as to "dangers of the river audfire;" that the Eliza Battle, while on her voyage down the river, ran aground on Groom's bar, and, in order to lighten her, a part of her cargo, including the plain- tiffs cotton, was transferred to the Jenny Bealle, another boat belonging to the defendants, which passed while the Eliza Battle was on the bar; that the Eliza Battle, after being thus lightened, continued her voyage down the river, without taking back any part of her cargo from the Jenny Bealle; that the latter boat afterwards ran aground, and was lightened, in like manner, by transfer- ring a part of her cargo to the Sallie Spann, another boat belonging to the defendants; and that the Sallie Spann, with all her cargo, including the plaintiff's cotton, was afterwards destroyed by accidental fire. Each one of the boats was shown to have had skillful and competeut officers and a sufficient crew, and not to have been over- loaded; and no question of negligence arose in the case. One of the plaiutift's witnesses, who was a passenger on the Eliza Battle, testified as follows: "The river was low, and falling slowly. I saw no danger to the boat, as she lay on the bar, and heard nothing said by her officers as to any danger, except danger of delay, or. of inability to continue her voyage. The boat was so near the bank at one end, that she could have put out her gangways, aud rolled off her cotton on the bank. I do not know what constitutes a necessity to tranship, nor do I know wheth- er the boat could have gotten off; but the cotton could have been landed on the bank, by putting out planks from the boat." "The court charged the jury as follows: 'If the Eliza OF ALABAMA. 421 Cox, Brainard & Co. v. Foscue. Battle was compelled to tranship'the cotton, by or through the negligence or want of skill of those who had the management and control of her, the defendants are liable. But, if there was no negligence, or want of skill, on the part of those who had the management and control of the Battle, then you will ascertain, whether or not she was in such a condition that, in order to avoid an itnpendingse-. rious danger or loss to the boat and cargo, it was necessary to tranship the cargo, or a part of it, and there was no other reasonable way of lightening her in tfce power of the captain with his crew, by which said lightening could have been effected, at less risk' to the plaintiff than was occasioned by such transhipment. In case of grounding, if the grounding was by reason of any negligence* of the defendants, they would be responsible for all the conse- quences of the transhipment and loss, if accruing by reason of the transhipment. If the grounding was not by negligence, then, if it became necessary to lighten the •boat in order to get her ofK their first duty would be to land the cotton, if that would have enabled the boat to proceed, and it was practicable to do so with safety, and take it on again after the boat was freed from the ground- ing, and in a proper condition to proceed on her voyage. If this could notbe conveniently done, then it was proper to put the cotton on another boat, ill order to lighten the JBiittle, if the captain, acting with the judgment that a wise and prudent man would exercise as the most condu- cive to the benefit of all concerned, came to the conclu- sion that BUeh transhipment should be made. If yon are satisfied that there was such a state of facts, and 'the transhipment was proper, the defendants are entitled to a v rdict; if it was not, the plaintiff is entitled to a ver- dict."' 'J he court also charged the jury, at the request of the plaintiff, '" that the right of transhipment at the plain- tiff's risk did n«t exist, unless it was necessary to avoid an impending serious damage or loss to the boat and car-. i. and there was no other reasonable way of lighten- ing the boat in the power of the captain with bis crew, SUPREME COURT Cox, Brainard & Co. v. Foscue. by which such lightening could have been effected, at risk to .the plaintiff than was occasioned to him by such transhipment." The defendants excepted to each of these charges, and they now assign them as error. Geo. N. Stewart, and E. S. Dargan, for appellants.-— The court below, in* its instructions to the jury, sanc- tioned the transhipment only as a last resort — required the captaiu first to exhaust every other possible mode of lightening the boat; and made it his first duty, to land, the cotton on the bank and take it back again, if that could be done at less risk to the plaintiff than was in- curred by the transhipment. In each of these particulars, it 'is insisted, the instructions are erroneous. It is the first duty of a carrier, to forward the goods entrusted to him to their place of destination, if his' own vessel be- comes disabled. The master of the vessel is the agent and representative, not of the plaintiff o.r defendant alone, but of all the parties interested in the ship and cargo- owners, shippers, and underwriters; and it is his duty to consult the interests of all' equally. If he, exercising his best judgment and professional skill, and acting for the best interests of all parties concerned; determined that the accident rendered the transhipment necessary or proper, he was authorized to make it, and the defendants thereby incurred no liability for the subsequent loss of goods. — Parsons' Mar. Law, 162-3, 'and notes; Abbott on Shipping, 448, 453-4, 240, 236, 249, note 1; Flanders on Shipping, 257-8,240, 254,171,173; 3 Kent's Com. (5th ed.) 210, 212, 224; 1 Story's R. 342; 4 Johns. Ch. 218; 9 Mass. 551; 9 Ad. & El/332 ; Parsons' Mercantile Law, 348-9. Wm. Boyles, audR. II. & J. L. Smith, contra.— A tran- shipment of freight is only justifiable in cases of neces- sity. The mere stranding or grounding of the vessel does, not constitute a case of necessity, if she can be got oft and repaired at an expense not exceeding one-halt her OF ALABAMA. 423 Cox, Brainard & Co, v. Fos> m\ value. — Abbott on Shipping,. 451; Bryant v. Com. Ins. Co., 6 Pick. Ill; 3 Story, 465; 1" liar'r, 111; 1 Arnould on Ins. 181; Flanders on Maritime Law, §§ 135, 137; Am. Law Reg. for June, 1357, p. 459; 8 Wa .44; 1 B. Monroe, 339; 6 Ohio, 359; 8 Missouri, 99; ■> \d. & El. 314. j A. J. WALKER, C. J.— [July 1,1861.]— The contract of affreightment obliges the carrier, in the \e of a legal excuse, to carry the freight to the destined port in the very vessel stipulated in the bill of lading. It is aright resulting from the contract, that the transporta- tion shall !»e in the chosen vessel. It is not permissible to speculate as to the reasonableness of the choice. The owner of the freight cannot be questioned as to his reasons. The law allows to him the benefit of the max- im, " Ic jubeo, sit pro ratione votuntas," — Bazinv. Liverpool & Am. Steamship Co., Am. Law Register for Juno. 1857, p. 4o'.>. (pinion by Judge Crier; Carnett v. •Willan & Jones, 5 Barn. & .Aid. 53-G1; Little & Tomp- kins v. Sample, 8 Mo. 99. A transhipment of the weight, without a legal excuse, however competent and n, and pi ' \ i foyagej and ; inga could have been done with safety and convenience. The pr,e and save his freight." — Kent's Com. m. p. 210. And Angell, in his work on Carriers, in reference to the same subject, says, that if by reason of stranding, or sorue other unexpected cause, it becomes impossible to con-* vey the. cargo safdy to its destination in his own vessel, the master is to do what a prudent man would think most for the ^enefit of all concerned; and trail Inpatient to the place of destination is the first object, because that is the furtherance ot the original object. — Angell on the Law of Carriers, 188, § 187. See, also, Smith's Mercantile Law, 292; 1 Parsons' Mar. Law, 163, 161, n. 2; Abbott on Shipping, m. p. 365; Searle v. Scovel, 4 Johns. Ch. R. 222; Shipton v. Thornton, 9 Ad. & El. 333; Crawford v. Williams, 1 Sneed, 212; 1 Arnould on Ins. 181, top; .Jordan v. Warren Ins. Co., 1 Story, 354; Parsons' Mer. Law, 348-9. It may be that the necessity, which would justify a transhipment, is not required to be shown with absolute certainty to have existed. That a moral necessity would be sufficient to justify the transhipment, seems to be con- ceded by the authorities.' Such a case of moral neces- sity would exist, where the circumstances were such, that OF ALABAMA. 425 Cox, Brainard & Co. v. Foscue. a master of reasonable prudence and discretion, acting upon the pressure of the occasion, would have made the transhipment, from a firm opinion that, unless the tran- shipment was made, the vessel could not be delivered from the peril at all, or not without, the hazard of an ex- pense utterly disproportionate to her real value. — Brig Sarah Ann, 2 Sumner, 207; Gordon v. Mass. .Ma. & Fire Ins. Co., 2 Pick. 240; Ship Fortitude, 2 Sum. 248; Flan- ders on Maritime Law, 104, n. 2; 1 Parsons on Maritime Law, GO; Parsons' Mer. Law, 37t>, n. 8. A case of such moral necessity is put by Lord Tenterden, as follows: "If on the high se»s the ship be in imminent danger of sink- ing, and another ship, apparently of sufficient ability, be parsing by, the master may remove the enrgo into such ship; and although his own ship happen to outlive the storm, and the other perish with the cargo, he will not be answerable for the loss." — Abbott on Shipping, m. p. 365. But no such case of moral necessity is presented in the facts upon which the court below, iu the charge which we are considering, instructed the jury, that the tran- shipment of the plaintiff's cotton was not justified. In the case of Bryant v.. Com. Ins. Co., (6 Pick. 141,) the court sustain the view which we take of the master's duty iu this case, iu the following language: "The law authorizes the master, in case of shipwreck, stranding, or other disasters, which may happen without his fault, to act for all parties interested iu their absence. If the ship should be stranded, it would be his duty, in behalf of the owner of the ship, to get her off and prosecute the voyage, if it could bo done at an expense not exceed- ing half her value. So, if that could not be done, he has authority to procure another ship to carry the cargo to the port of destination. If the cargo were damaged by the stranding, not exceeding one-half of the invoice value, it would he the duty of the master, as represent- ing the owner of it, to cause it to be reladen on board of the ship, if that were in a condition to transport it, or, if not, on board any other ship which he could procure Upon reasonable terms on account of the ship-owner; to the end that the ship-owner may earn his freight, and the 28 16 SUPR EME COURT Cox, Bi'&inard & Co, v. Fo-=oue. merchant may have his goods at the port of destination. The master, in short, is, in sneh cases, to act reasonably and honestly, with- a view to save the property and form the voyage." The mere stranding, ot itself. • not necessarily produce a necessity for transhipment. Notwithstanding the stranding, it is the master's duty to get the vessel off", and prosecute the voyage, if lie can do so; and no consideration of mere convenience to him would justify a transhipment. We do not think the charge given at the instance of the appellee is obnoxious to the objection made especially to it. The objection is, that it makes the transhipment improper, unless there was no other reasonable way of lightening the'boat in the power of the captain, at lesfl risk to the plaintiff than was occasioned by the tranship- ment; and that the jury were thus made to consider the interest of the plaintiff alone, and not of the boat-owner and all others concerned, in determining whether trie transhipment was proper. We do not think the charge is obnoxious to the objection. A way of lightening the boat, which would protect the plaintiff at the expense of all others concerned, would be unreasonable; and the use of the word reasonable in the charge shows, that the court did not intend to make the impropriety of the tranship- ment depend upon the fact, that there was another way of lightening the boat, which would produce less risk to the plaint ilt", but which would involve a disregard of the in- terest of all others concerned. If the charge is confused, and tended to mislead the jury, the appellants ought to have protected themselves by asking an explanation at the time. What we have already said in passing upon the first charge, will meet the other objections made to* the second^ Judgment affirmed. Stone, J., does not assent to the correctness of the criticism of the last charge given. OF ALABAMA. 427 Patterson v. Flanagan-. PATTERSON" vs. FLANAGAN. [TROVKR FOK CeMTKSliiN (_•'■ SLAVE.] 1. }!'■/ l.i-i Ct r ry separate estate — Under the I (| 1983,) the husband has no right or power to mortgage, ' own individual debt, a .slave belonging to ths wife's statutory sep- arate estate. 2. Declarations explanatory oj . air! against interest. — I>< tions, made by a i>erson who has the possession of a slave, t<> the effect that he holds under a will, and olafms only a life the slave, are competent evidence on the principle of res and as admissions against interest, without the production ol' the will. 3. Relevancy of evidence, in trovei', showing time of shift's death, — In iver by tin' wife, after the death of the husband, for the conver- sion of a slave belonging to her statutory separate estate, which" went into the defendari n under a mortgage exec by the husband without authority of law, and was accidentally drowned while thus in his possession, it is wholly immaterial whether the death of the slave occurred before or after the death of the husband; consequently, the exclusion of evidence bearing on that question is not a matter available en error. Appeal from the Circuit Court of Wilcox. Tried before the Hon. "N"at. Co This action was br by Mrs. Eliza E. FInnr: against I). A. W. Patterson, abd was commenced on the i!l-i September, I v -">s. Tin' complaint, as amended, con- tained two counts; the first beingin the osnal fo'rta i count in trover for tlie conversion of a slave, nai Ellen, the property of the plaintiff; ami the sec claiming fifteen nun ars damages for the defend* 'ant's neg and want of proper care and at) towards the slave, while in hi- ion anderaconti of hiring. No pleas appear in tl ]. The slav controversy, ai appeared from the evidence adduced on the trial, had belonged to the plaintiff* paternal grand- 428 • PREME COURT Patterson v. Flanagan. father, who bequeathed her to the plaintiff's father for life, with remainder to the plaintiff. The plaintiff v. married, in October. 1863, to James M. Flanagan, who died on the 11th May, 1857 : and she owned and possessed said slave at the time of her marriage. The defendant obtained the possession of the slave, in the early part of the year 1857, under a mortgage from said Flanagan, to secure the re-payment of a sum of money lent by him to said Flanagan ; and'she was accidentally drowned, while thus in hi9 possession, in attempting to walk across a foot-log over a creek, on returning with other negroes from the field in which they worked. The exact time of the slave's death — whether it occurred before or after the 11th May, 1857, when said Flanagan died — was not shown. The defendant's overseer, the only witness who testified to the circumstances attending her death, could not state the precise time at which it occurred ; and the court ex- cluded all the evidence offered by the defendant, for the purpose of showing that it occurred before the 11th May. This evidence consisted of the report of the slave's death in the town of Camden, which was about one mile distant from the defendant's plantation ; the statement of a wit- ness, who lived in Camden, that he had heard of the slave's death before Flanagan died ; and a copy of a news- paper published in Camden, dated the 9th May, which contained an account of the slave's death on the 6th May. The defendant reserved several exceptions to the exclu- sion oi this evidence. On cross-examination of one Harwood, a witness for plaintiff, "defendant, asked said witness, whether plain- tiff's father had the possession of said slave in his life- time, and claimed her as his own property; to which the witness answered affirmatively, and stated, in reply to other questions, that said slave was delivered to plaintiff by her father's administrator, about three months after his death, and that he died intestate. Plaintiff asked said witness, on the rebutting examination, how plain- tiff's father claimed to own said slave; and the witness answered, that he claimed to own her for his life only. OF ALABAMA. 420 Patterson v. Flanagan. The defendant then asked the witness, whether the life- estate was so claimed by plaintiff's father under a d orwill; and he answered, that it was under a will. There- upon, the defendant objected to the proof made by the witness, (that lie only claimed a life-estate in the si;. unless the will was produced. The court overruled tie objection, and permitted the evidence to remain bef the jury; and the defendant excepted." The plaintiff proved, by several witnesses, declarations made, at different times, by the defendant and the plain- tiff's deceased husband, as to the terms of the contract under which the defendant obtained the possession of the slave; the substance of these declarations being, that Flanagan mortgaged the slave to the defendant, to secure. the re-paymcut of a sum of money lent to him by the defendant. She also read in evidence a portion of the defendant's answers to interrogatories filed to him under the statute, in another suit between them, (in which she sued for the conversion of another slave, named frank.) in the following words: '-The boy Frank was put in my possession by James M. Flanagan, in 1857, for the pur- pose of securing the payment of $ 7.50 paid by rue for him; and the understanding n us was, tlur if the said.mouey was not paid to me by some time in Decem- ber, 1857, (the time not now reiucmbered,) I waa.to sell Frank, and another negro put in my possession by Flanagan, and pay myself the amount." wt Alter having charged the jury, without objection, as to the facts : ry to make ive the separate the plaintiff under the Code of Alabama, the court further charged the jury-as follows: That if they found from the mder the previous eh; the com'. te of the plaintiff, held by iter under f Alabama, then us baud had no right to mor bout lc r ku >\vled to cure a debt of his own ; and thai if i. ant, and the defendaut i on oi her under the mortgage, his Ao\ be unlawful ;. 430 SUPREME COURT Patterson v. Flanagan. the plaintiff; and that if the slave was drowned while so held by the -defendant, the defendant would be liable to the plaintiff for her value, and the mortgage of the hus- band, if given as'aforesaid, would not protect him." The defendant excepted to this charge, and requested the court to give four charges in writing; the first and third of which the court gave, but refused the others ; and the defendant excepted to their refusal. The charges so refused were in the following words: "2. If the jury find, from the evidence, that the plain- tiff was the wife of James M. Flanagan in the earl}- part of the year 1857, and had a separate estate in the slave Ellen, held by her under the provisions of the Code of Alabama, as defined in the charge given by the court; and that said Flanagan placed said slaves in the posses- sion of the defendant, under a contract that he was to have the use of the slaves for the interest on the money loaned by him to. said Flanagan, until the then next De- cember, and then was to have authority to sell them, if the money was not paid, — then the defendant's possession of the slave would be lawful up to December, 1857." "4. If the jury believe, from the evidence, that the slave Ellen went into the defendant's possession, under a contract that she was to remain in his possession, as a security for money which James M. Flanagan owed him, until December,, 1857, and then be sold by the defendant to pay the debt, unless sooner paid, and the hire of the slave in the meantime to discharge the interest on the debt; and that the said slave died, without the fault of the defendant or his overseer, before the death of said James M. Flanagan, and before December, L857, then the}' should find for the defendant." The ruiings of the court on the evidence, the charge given to the jury, and the refusal of the charges asked, are now assigned as error. Morgan & 1>yri>, for appellant — The rents, income, and •profits,- of the wife's separate estate under the Code, be- long to the husband, who alone has the right to sue for OF ALABAMA. 431 Patterson v. Flanagan. and recover them. — Whitman v. Abernathy, 83 Ala. 154; Sessions v. Sessions, 33 Ala. 522; Pickens v. Oliver, 29 Ala. 532. lie is entitled to receive and receipt for any property belonging to his wife's separate estate; has the right to invest the proceeds arising from a sale of it, or to use them for the benefit of the wife; the right, also, "to manage and control" her property at his discretion, subject only to the revisory power of the chancellor; and has a contingent right of survivorship, to the extent of one-half of the personalty, which becomes absolute on the death of the wife intestate. With all these rights, interests, powers and duties, devolved upon him by statute, it would be a strange construction, which would confine his "management and control" of the property to the passive receipt of the rents and profits, without power to hire or pledge the property, and thereby make it produce income or profits. lie alone can determine what is the most judicious mode in which to employ the property: and the wife can only avoid his acts through the interposition of the chancellor, when her title to the property itself is thereby endangered. P. W. Baine, contra. — The principle on which the case of Boaz v. Boaz, (36 Ala. 334,) was decided, is equally decisive of this case. To give the husband power to mortgage or pledge the wife's separate property, without her assent, for his own individual debt, would enable him to defeat the object and purpose of the statute, as declared in that ease. STONE, J.— [July 11, 1S01.]_ The controlling point in this record arises on the construction of section 1983 of the Code. That section reads as follows: " Property thus belonging to the wife, [her statutory separate et I in the husband as her trustee, who has the right to manage and control ie, and is not required to ac- count with the wife, her heirs, or legal representatives, for the^rents, income, or profits thereof; but such rents, income and profits, are not subject to the payment of the 4:\2 SUPREME COURT Patterson v. Flanagan. debts of the husband." It will be seen that this section of the Code vests the legal title of the wife's separate estate in her husband, gives him the right to manage and control the same, and relieves him from all accountability for its income and profits to the wife, her heirs, or legal representatives. The provisions of the statute, conferring on the husband the right of control, and exempting him from liability to account, go no further than this. Under the act of 1850, which substantially conforms to the section of the Code above copied, this court, in the case of Weems v. Bryan, (21 Ala. 308,) considering the rights of a surviving husbaud in the statutory separate estate of his deceased wife, said : "Under this provision, there can be no doubt but that the husband becomes tenant for the life of the wife, (per autre vie,) of the rents and prolits of the wife's estate. The right 'to have and possess, control and manage,' her property during the coverture, without liability to account, makes, him so. Like every other tenant for Ufa, he is entitled to emble- ments," &c. In the case of Bennett v. Bennett, (34 Ala. 56,) we withheld express approbation of the opinion in Weems v. Bryan, (supra,) but adhered to it as a rule of property. So, in Pickens v. Oliver, (29 Ala. 532,) we followed out the principle announced in Weems v. Bryan; and, although the question was not directly presented, we said that, in the rents, income and profits, of the wife's statu- tory separate estate, the husband, during the continuance of the trust, is entitled to the entire interest, and the wife to no part of it. The same principle had been substan- tially affirmed in the older decision at the same term of Andrews v. lluckabee, 30 Ala. 143. And in Whitman v. Abernathy, (33 Ala. 160,) we followed this principle, and ruled, that the wife could not recover from the hus- band's vendee the hires of slaves belonging to herseparate estate, which hires accrued during the continuance of the trusteeship. See, also, Rogers v. Boyd, 33 Ala. 175; Smyth v. Oliver, 31 Ala. 39; Durden v. Mc Williams, 0F_ A L A 1 > A A ! A. 433 Patterson v. 'Flanagan. ib. 438; Cowles v. Morgan, 34 Ala. 535; Alexander v Saulsbury, January term, 1SC1. It will be observed that, in most of these cases, the Sight of the husband to the rents, income and profits, is predicated on the assumed and unqualified ground, that he was not liable to account therefor. Such was the state- ment of the principle in Weems v. Bryan, and the later cases followed its lead. The language of the Cod 1 that the husband "is not required to account with the wife, her heirs, or legal r> There may be a distinction between a general* exemption from liability to account, and a qualified exemption from liability to ac- count with the wife, her heirs, and legal representatives. Whether a husband, holding in his hands the income and profits of the wife's separate estate, can be made to account for such income and profits to creditors of the wife, is a question which has not been considered in this court, and we do not now propose to consider it. Nor will we inquire whether any peculiar significance attaches to the form of the expression, "is not required to account with the wife, her heirs, or legal representatives." These questions will be disposed of when they ark In the later case of Boaz v. Boaz, (36 Ala. 334,) we think we furnished a much more satisfactory solution of the question under discission, than is contained in the general language of the opinion in Weems v. Bryan, fol- lowed, as that language was without question, in the later eases. We there said, "The legislature, in making the exemption from liability for the husband's di tainly did not look alone to his benefit. It would be a strange' anomaly in legislation, if the husband has clothed with a right to the entire income of the wi property, exempt from liability to his debts, for no pur- I the bestowment of a peculiar boon upon him. lint furthermore, the peculiar language of the statute is indicative of an ulterior purpose. It first de- clares, that the property is the wile's separate estate. It then vests it in the husband as ■ . and proceeds to declare, not that the income belongs to the husband, but 434 SUPREME COURT Patterson v. Flanagan. that he shall not be required to account for it. The hus- band, therefore, holds the property as trustee, and is entitled to the income, merely because he is not required to account for it as trustee. It is a fair inference from these provisions, that the husband is not vested with a title in his own right, for any space of time, to the wife's separate estate ; that the law has permitted him to receive the income, with the purpose that he might, as the head of the family, have the means of maintaining that family; and has made it free from liability to debts, in order that his misfortunes and thriftlessness should not prevent the accomplishment of the purpose." In promotion of this line of argument, we may well inquire, if the legislature intended to confer on the hus- band the unqualified property in the income and profits during the joint lives of .himself and wife, why did they not express that intention in plain and unambiguous lan- guage ? Why, when simple words would so much better subserve thoir purpose, employ the circumlocution, that the husband, as trustee, should have the right to manage and control the property, without liability to account with the wife, her heirs, and legal representatives, fol 1 the rents, income, and profits ? If the intention was to make an absolute gift, why restrict the language which ex- empted him from liability to account? These questions we ask, without intending to answer them. It is not our intention to weaken or overturn any de- cision heretofore made, bearing on section 1983 of the Code. Those decisions have doubtless been acted on» and have become rules of property. But we are not inclined to enlarge the husband's interest in the wife's separate estate. Following out the principles declared in the case of Boaz v. Boaz, (supra,) it is manifest that a mortgage or pledge of the wife's separate property, by the individual contract of the husband, and for his individual debts, is not within the pale of the authority which the woman's law confers on the husband and trustee. The intention and policy of the law, as was shown by the result of the OF ALABAMA. 435 Patterson v. Flanagari. case of Boaz v. Boaz, are, that the wife shall receive a support from the labor and income of the separate estate. Hence, Mr. Boaz, by withdrawing his protection and supervision from the home of his family, was declared to have forfeited his right to continue in the exercise of the trust; and, for that cause alone, he was removed. So, in this case, Mr. Flanagan, by mortgaging the slave, for his own debt, has assumed an ownership and control of the property, not compatible with the purposes of the trust. This can not, with any propriety, be classed as an act of management or control of the property, with a view to the maintenance of the family. It is, so far as we can discover, a placing of the property beyond the reach of the family; not as a means of securing to the wife the enjoyment of her property, but as a means of raising money for the benefit of the husband. If we were to hold, that the statute confers on the hus- band the right to so dispose of the separate estate of the wife, it would follow, that the wife oouldnot complain of this rightful exercise of authority; and would not such principle arm the husband with power to defeat the very object of the statute, as declared by itself, and by this court in the cases of Smyth v. Oliver, and Boaz v. Boaz? We will not further elaborate this view. That the husband may hire or lease out the separate property of the wife, as a general rule, we will not deny. Such hiring or leasing may be one, and, in the circum- stances, the most advantageous mode of maintaining the family from the income of the separate estate. This power might be abused; and for the correction of that abuse, the interference of the chancellor may be invoked, — with what success or show of right, we will not now anticipate. It results from what we have said, that the circuit court did not err in giving the first affirmative charge, and in refusing the second and. fourth charg d. The sec- ond affirmative charge waa not excepted to, and we i not consider it. [2.] The court did not err in admitting in evidence the 436 SUPREME CPU R T Alexander v. Saulsburv. declarations of Mrs. Flanagan's father, made while he was in possession of the slaves, and explanatory of his possession; also, in disparagement of his title. That he claimed to hold them under a will, or supposed will, can not vary their legality as res-gestce declarations. — Shep. Dig. 591, etscq.: Thomas v. Deg raffenreid, 17 Ala. 602. [3.] The testimony offered, tending to show that the slave Ellen died anterior to the death of Mr. Flanagan, was wholly immaterial, and was rightly excluded on that ground, if no other. Judgment affirmed. ALEX ODER vs. SAULSBUKY. [•ACTION ON" OTKN ACCOUNT FOR GOODS SOLD AND DELIVERED.] 1. Validity of sale, by wife alone, of statutory separate estate ; wh actianlies to recover agreed price.— A sale by the wife alone, without the concurrence of her husband, of property belonging to her statutory separate estate, is absolutely void, and passes nothing to the pure'..: i ,■ ; and the wife cannot maintain an action at law, in. her own name, to recover the value or agreed price of the prop- erty. Appeal from the Circuit Court of Barbour. Tried before the lion. Jxo. Gill Shorter. The complaint in this case was in the following words: "Mary 6. Raulsbury "| The plaintiff claims of the vs. > defendant fifty-six 05-100 dol- Ezekiel Alexander. ) lars, due by account lor goods and merchandize furnished by plaintiff to defendant, at his instance and request; which account was payable on the 1st January, 1.854, with interest thereon. The plain- till' avers, that, at the time of the purchase of said goods OF ALABAMA. 437 Alexander v. Sanlsbury. and merchandise from her b}- the defendant, and at the Commencement of this suit, she (the said plaintiff") was a married woman, and had a separate estate secured to her separate use by virtue of a statute, passed by tne legisla- ture of Alabama, coMraouly called 'the woman's law;' and that. Baid goods and merchandize, so furnished to defendant at his instance, were a part of her said separate estate." The defendant demurred to the complaint, on the following grounds: "1st, bscausc, on the facts stated in the complaint, the plaintiff has no right to maintain this action in her own name; 2d, because, on the facts stated in said complaint, the plaintiff's husband should have been joined as co-plaintiff with her; and, 3d, because the facts stated fail to show such separate estate as will authorize the maintenance of this suit by her alone." The overruling of the demurrer, with other matters which require no particular notice, is now assigned as error. E. C. Bullock, for appellant, cited Pickens v. Oliver, 29 Ala. 51)2; and Gibbons v. Marquis, ib. 072. GoLDTnwAiTE, Rice & Semple, contra, cited High v. Worley, 33 Ala. 196; Saunders v. Garrett, 33 Ala. 454; Smyth v. Oliver, 31 Ala. 39; Drake v. Glover, 30 Ala. 382; and Duncan v. Stewart, 25 Ala. 408. R, W. WALKER, J.— [Feb. 14, 1SG1.]— A married woman, having a statutory separate estate, sells and de- livers to the purchaser a portion of the same, without the coneurrence of her husbaud; can she, by suit upon the contract, in her own name, recover of the purchaser the value, or agreed price of the property '.' Our opinion is, that this question must be answered in the n< ction 213] of the Code provides, that "husband and must be joiu d, either as plaintiffs or defends when the wife has interest in the subject-matter of the. 438 SUPREME COURT ___ Alexander v. Saulsbury. suit, unless the suit relate to her separate estate, wheu she must sue or be sued alone.-" The effect of this sec- tion was vpiy carefully considered by the court, in Pickens v. Oliver, (29 Ala. 528;) and it was there held, that the rule established by the latter clause of this section, "must be confined to suits for the corpus of the property, and for damages to the property itself, as distinguished from its use." This is clearly not a suit "for damages to the property" constituting the wife's separate estate. If it can be maintained at all, it must be upon the ground, that it is a suit for the corp u s of the property. Although all the property of the wife, held by her previous to her marriage, or which she may become entitled to after her marriage, in any manner, is her separate estate, and is not subject to her husband's debts; yet all such separate estate "vests in the husband, as her trustee, who has the right to manage and control the same, and is not required to account for the rents, income or profits, to the wife, her heirs, or legal representatives." — Code, § 1983. Thus it will be seen, that the corpus of the property belongs to the wife, while the right to control and manage the same, free from accountability for the rents, income, or profits, is vested in the husband. Section 1984 provides, that "the- property of the wife, or any part thereof, may be sold by the husband and wife, and conveyed by them jointly, by instrument of writing, attested by two wit- nesses." This provision is obviously restrictive of the right of disposition, and was doubtless intended to prohibit the sale of the wife's property, except such as might be made by the husband and wife. — Smyth v. Oli- ver, 31 Ala. 43. See, also, Whitman v. Abernathy, 33 Ala. 159; Rogers v. Boyd, 33 Ala. 175; Drake v. Glover, 30 Ala. 389. We thiuk, therefore, that a transfer of her statutopy separate estate by the wife, without the concur- rence of the husband, in the manner provided by the statute, is, in a court of law at least, absolutely void, and passes nothing to the purchaser. — See Smith v. Plower, 15 East, 607. The title to the property so transferred is OF ALABAMA. 4SD Alexander v. Saulsbury. in nowise affected thereby, and the property remains, as before, the separate estate of the wife. By the common law, a married woman can neither sue nor be sued alone, and all contracts made by her are void. 1 Parsons on Con. 286. These disabilities of coverture the Code modifies, but does not destroy. Beyond its ex- press provisions, married women are no more sui juris than they were before its adoption. — Pickens v. Oliver, 29 Ala. 528. Hence it follows, (sq far, at least, as a court of law is concerned,) that a married woman has no legal capacity to contract in relation to her separate estate, ex- cept for the purpose, and in the manner, provided by the statute ; and as a sale of such separate estate, made by the wife alone, without the concurrence of the husband, is unauthorized by the statute, every such contract of sale is void; and being void, it can form no foundation for a suit at, law in the name of the wife. It will not do to say, that a married woman, having a separate estate, is capable of electing to have either the property sold, or the value or agreed price thereof; and that, on her electing to receive or sue for such value or agreed price, it becomos her separate estate, in lieu of the property sold, which she is, by such election, esto from ever claiming thereafter. If this be so, of what avail would be the provisions of the stat.ute, that the hus- band shall manage and control the estate, and receive the profits without liability to account to the wife, her heirs, or representatives; and that no part of the property shall be sold without his concurrence? If we are to yield obedience to the statute, we must hold, (whenever, at least, the question arises in a court of law,) that a married woman is incapable, bv any independent act or contract of hers, of converting, th >>t her separata estate. It is true that, in the case of a wrong-doer gelling prop- erty without title, the purchaser, while he holds under a contract of sale, cannot resist the payment of the pur- -money. — Duncan v. Stewart, 25 Ala. 418. But it was understood, that a person, by contracting with a married woman, admitted her right to puc in her own 440 SUPREME COURT Manly's Adm'r v. Turnipseed and Wife. name on the contract, or precluded himself from pleading her • coverture in bar of such a suit. On the contrary, the rule of the common law is, that if the wife sell any thing, her husband alone has the right to recover the price. — 1 Parsons on Contracts, 286-7. As the rulings of the circuit court were in conflict with these views, the judgment must be reversed, and the cause remanded. MANLY'S ADM'R vs. TURNIPSEED and WIFE. , [DETINUE FOR SLAVKS.] 1. W of limiiai • run. — The statute of limita- tions does not begin to run against an intestate's estate, until the appointment of on administrator : but it is not necessary that there should be a domestic administrator, when the intestate dies in a foreign State, and administration on his estate is there granted by the proper tribunal, although such foreign administrator may have never had his letters recorded here, as authorized to do by the act of 1821. (Clay's Digest?, 227, g 31.) 2. What constitutes adverse possession. — A knowledge on the part of an adverse holder that his title is defective, does not, of itself, pre- vent the operation of the statute of limitations in his favor. APPEAL from the Circuit Court of Calhoun. Tried before the Hon. B. D. HALE, This action was brought by M. J. Turn ley, as the ad- ministrator of Washington Manly, deceased, to recover a negro woman named Elizabeth, and her five- children ; and was commenced on the 12th March, 1857. The de- fendants pleaded, "in short by consent, ne ungues admin- f'y/ni/nr. the statute of limitations of six years, and the geni ial issue, with leave to give in evidence any matter that might be specially pleaded." The woman Elizabeth, OF ALABAMA. 441 Manly's Adm'r v. Turnipseed and Wife. as appeared from the evidence adduced on the trial, be- longed to said Washington Manly at the time of his death, which occurred in June, 1838, at his residence in Stewart county, Georgia ; he dying intestate, and leaving a widow and several children. In October, 1838, the wid- ow and children removed to Calhoun county, Alabama, bringing the slaves with them. In December, 1838, the orphans' court of Calhoun appointed William Walker guardian of said intestate's minor children ; and he con- tinued to act in that capacity, having the control and management of the slaves, until the 23d January, 1840, when he resigned, and Henry Amarine was appointed guardian in his stead. Some time during the year 1842 said Amarine married the intestate's widow, and he con- tinued to act as the guardian of the children, having the possession and control of the slaves, until the 3d March, 184*, when he resigned, and William Barker was appoint- ed by said court guardian of said children. In Novem- ber, 184S, said Barker applied to said court for an order to sell the slaves; alleging, as the ground of his applica- tion, that the intestate's widow (then Mrs. Amarine) was entitled to a distributive share of them, and that they could not be equally divided without a sale. The court granted the order, and the slaves were sold, pursuant to its terms, on 28th December, 1848, and were purchased at the sale by said Amarine, who, on the 6th Decem- ber, 1855, sold and conveyed them to the defendants. The plaintiff's letters of administration were granted, by the probate court of Calhoun county, on the 10th March, There had been no previous administration on said estate in this State; but letters of administration had been granted by the proper court in Stewart county, Georgia, on the 11th January, 1847, to one George L. Smith. On the foregoing tacts, the court charged the jury as follows: " If the jury believe, from the evidence, that Washington Manly died in Georgia, in 1838, the owner of the woman Elizabeth ; and that the other negroes sued for are the children of Elizabeth; and that said negroes, 29 442 SUPREME COURT Manly's Adm'r v. Turnipseed and "Wife. shortly after the death of said Manly, came to Alabama with his widow and children; and that in December, 1848, Barker, acting as the guardian of said children, held and claimed the negroes, as such guardian, in g faith, and, on that day, sold them under an order of the orphans' court of said county, believing that he was sell- ing and conveying a good title; and that Amarine be- came the purchase!* at said sale, in good faith, and at a fair price, believing that he was buying a good title ; and that ho complied with the terms of the sale, took posses- sion of the slaves, and, in good faith, openly held, claimed and controlled them as his own, until the 6th Decem- ber, 1855, and then sold them to the defendants, for a fair and fall price, believing that he was selling a perfect title; and that the defendants purchased in good faith, believing that they were obtaining a good title, and held and claimed the slaves openlv as their own, down to the commencement of this suit ; and that George L. Smith was appointed administrator of the estate of said "Wash- ington Manly, in Stewart county, Georgia, on the 11th January, 1847, (as shown by the record which has been read in evidence.) where said Manly died; and that said Smith, at the time of his said appointment, had notice that said slaves were in the county of Calhoun or Ran- dolph, Alabama, — then the statute of limitations had, at the time this suit was brought, barred any action to re- cover the slaves by an administrator of said estate, and they must tind for the defendants." The plaintiff excepted to this charge, and requested the court to give the following charges, which the court re- fused to give, and the plaintiff excepted to their refusal, to- wit : "1. If the jury believe that the slaves were originally the property of Washington Manly, who died in Georgia, in 1839 ; and that said slaves were removed into this State in 1839, by the widow, without any administration thereon, and have continued in this State until the present time; and that there was no administration on Manly's estate, in Alabama, until the plaintiff was appointed in 1857, OF ALABAMA. 443 Manly's Adm'r v. Turnipeeed and Wife. — then the statute of limitations would not run in favor of tbe'defendants until the plaintiffs said appointment. "2. If the jury believe that the slaves were once the property of Washington Manly, and were removed from Georgia, by the widow, without any administration there- on, and have eonlinued in this State until the pre.-ent time; and that there has been no administration on said slaves, in this State, until the plaintiff 1 was appointed irr 1857. — then the statute of limitations did not run in fa- vor of the defendants until the plaintiff was appointed administrator, although George L. Smith was appointed' administrator of tate, in Georgia, in thoyear 1 s f 7 . "3. If the jury believe that. Amarinc, at the time he purchased the slaves, had a knowledge that there had been no administration on Manly's estate, then he took no title by his purchase ; and if the defendants had no- tice of a defect of title, when they purchased from said Amarinc, they took no title. "4. Th'c appointment of Barker, as guardian of Man- ly's children, give him no rights over the property of Manly's estate here. . If the slaves were originally the property of Wash- ington Manly, who died in Georgia in 1839, and were removed here by bis -widow, without administration, and have continued in this State u^ to the commencement of this suit, — then the appointment of Smith in 1*47, as shown by the record, did nol vest the property in him as administrator, and the st f limitations could not run against plain tifl until his own appointment. "0. If the jury believe that Amarine bought, at the , guardian's sale, with a full knowledge tii had never been administered npon, either in this State or in /ia. then his pui >od faith, and statute would not run in his furor; and then, if th< fendanfs have not bold the i than y purchased from Amarine, the statute would not effect a bar in their f.ivor, although Smith wa- ap- pointed in 1847 in Georgia. "7. If the jury believe, from the evidence, that the wo- 444 SUPREME COURT Manly's Adm'r v. Turnipseed mid Wife. man Elizabeth was the property of plaintiff's intestate at the time of his death in Georgia in 1833, and was brought to Alabama, shortly after said intestate's death, by his widow : and that said widow married Henry Amarine in this State; and that said Amarine took possession of Baid slaves, as the guardian of said Manly's children, know- ing that said slaves had [not] been administered ; and that the slaves afterwards went into the possession ofBar- kcr, as the guardian of said minor heirs, atid were sold by him as such guardian, knowing that no administration had been had on them, and were purchased at the sale by Said Amarine, with such knowledge, and the defendants had knowledge that said slaves had never been adminis- tered upon., — there could be no good faith in said several sales and purchases." The charge given by the court, the refusal of the sev- eral charges asked, and the rulings of the court on ques- tions of evidence, to which exceptions were reserved, (but Which require no particular notice,) are now assigned as error. G. (/. Wjiati.ey, for appellant. — When a person dies intestate, the statute of limitations does not begin to run against his estate, until the appointment of an ad- ministrator who is capable, of suing. — Lawson v. Lay, 24 Ala. 186; Wyatt v. Kambo, 29 Ala. 510. As the phi": i iff'a letters were granted only a few days before the suit v:,i< commenced, and there had been no previous ad- mini strati oil on his intestate's estate in this State, his claim could not be barred by the statute, unless the appointment of an administrator in Georgia, in 1847, brought, the case within the operation of the statute. But no such effect can be attributed to the foreign adminis- tration. In the absence of statutory regulations, a grant of letters of administration has no extra-territorial ope- ration, and an administrator can neither sue nor he sued in another State.— Vaughan v. Northup, 15 Peters, 2; Har- rison'?. Mahorner, 14 Ala. 834. Under our statute, (Clay's Digest, 227, §31,) a foreign administrator may sue here, OF ALABAMA. 445 Manly's Adm'r v. Turnipsecd and Wife. upon, complying with certain conditions; one of which •conditions is, that he shall first have his letters recorded here, and give bond "for the faithful administration" of the assets; and the statute expressly provides, that he shall not be entitled to receive pr recover any property of the estate, until he has complied with these requisitions. A compliance with these provisions makes an ancillary administration here. — Robinson v. Robinson, 11 Ala. ['00. A foreign administrator is not hound to sue here: it is not his duty to sue here, and he is not guilty of a devas* tacit for a failure to sue. — Davis v. Smith, 5 Geo. 29i. If the Georgia administrator was not bound to sue here, and could not demand or recover the property without first complying with the requisitions of our statutes, no right of action vested in him by his appointment, and the stat- ute of limitations did not begin to run against him. — Bacon's Abr. 39^, note a; Johnson v. Wren, 3 Stew. 17!'; 1 Kelly, (Geo.) 3$0. If he had complied with, all the conditions imposed by the statute, and then com- menced suit to recover the slaves, his action might have been defeated by the appointment of a domestic udmiBr istrator. — Broughton v. Bradley, 34 Ala. b'J4 ; o Mass. 540. An executor may commence suit before 1. quali- fies; but the statute of limitations does not begin to run, until his qualification and acceptance of the trust. — 6 Geo. 310". li. To render a plea of the statute of limitations avail- able, there must be an adverse possession ; and toco tote an adverse \ n, the holding must be in g i faith, and without notice. The defendants had actual knowledge of the defect in their own title, and an- charge- able with implied notice of the plaintiff's claim.— John- son v. Tbweatt, 18 Ala. 717; Nelson v. Allen ,t Harris, 1 Yerger, o n, save ■•• who are acting in a trust capacity, is bound to sue. The right of suit i- : and the operation of the statute is grounded upon the idea, that persons having the perm f the law to »ue, forbear to do .-.., but acquiesce in the assertion of a hostile right. Tl euey ot th< statute would be Utterly . and it» 448 SUPREME COURT Manly's Adm'r v. Turnipseed and oommand disregarded, if it were allowed no operation t where there was an obligation to sue. It is contended, however, that the right of suit does not attach to the foreign administrator, by virtue of hia for- eign appointment, hut grows out of his recording the let- ters of administration, and giving bond, as required by our statute; and that, upon complying with those requi- sites, an ancillary administration springs up in this State, under which the suit is maintained, and the assets re- ceived. This argument is supposed to be favored by the fact, that this court, in Robinson v. Robinson, (11 Ala. 947,; spoke, arguendo, of the recording of the letters of administration, and giving the prescribed bond, as "in effect an ancillary administration." We do not think the argument, is supported by the incidental remark alluded to. The court intended nothing more than to convey the idea, that a foreign administrator, who had complied with the statute, bad authority, like that of an ancillary administrator appointed in this State, to re- cover assets ot the estate, wine)) were the subject of an administration in this State. That a foreign administra- tor, who complies with our statute, does not become an ancillary administrator, and recover assets here in a new Capacity, derived in this State, is conclusively shown iu the case ot B rough ton v. Bradley, 34 Ala. Gi>4. W such I .''n administrator became an ancillary administrator, within the jurisdiction of this State, it would follow, that no ancillary administrator could afterwards be appointed in this State, and that the authority of the foreign admin- istrator could not be overthrown by the appointment of an ancillary administrator ; yet the reverse of these things is held in the ease referred to. The conclusion can not be resisted, that a foreign ad- ministrator, under our statute, is permitted to act in this State, by virtue of his foreign appointment, and in the capacity derived from that appointment. The langui of the statute itself does not admit of any other conclu- sion. It bestows the right upon the foreign administra- tor to maintain any action, to demand and receive any OF ALABAMA. 440 Manly's Adm'r v. Turuipseed and Wife. debt, ami to exercise all the right* and privileges wh : ch he would have done if duly appointed and qualified in this State. It does not even require that the letters of administration should be recordea before suit is brought^ The foreign administrator is permitted to sue here, with- out a solitary preliminary step. This conclusively shows, that our law recognizes in him a right -of action by vir- tue of the foreign appointment. The requisition, that the foreign administrator shall, before receiving any assets of the estate, record his letters of administration, and give bond, does not militate against the operation of the stat- ute. The prescribing of conditions, necessary for the security of persons interested, as a preliminary to a rem- edy, can not justify an exception from the statute. If it did, there could be no prescription against an action which the law required should be preceded by the giving of security for cost, or other bond; and yet, we apprehend, an argument for the exemption of 6uch eases from the statute would not be made. The statute of limitations was designed to be one of repose. Its effect is beneficent. It quiets titles, lessens litigation, and promotes justice, by requiring the settle- ment of controversies before tunc has obliterated any of the evidence. Its operation ought to be maintained with a steady hand. Tins we should not do, if we allowed it no effect against a foreign administrator, clothed by our law with a right to sue. A foreign administrator, if he is not affected by our statute of limitations, might design- edly fold his hands, and remain quiet, until time should destroy nil the evidences upon which a just defense de- pended, and then obtain an unrighteous r It would be a most unjust ami unreasonable discrimination, to bar by the lapse of time the claims of our own adtnin- ' no limit to the right ol the same claims, in 1 n administrator; yetthil discrimination the appellant I 'make. When the a righ! ign admini tors it must have intended that they should to the same dministrah i 450 SUPREME COURT utor v. Speer and Wife. [2.] The bill of exceptions contains the entire evi- We clearly perceive that the ruling of the court, in refusing to suppress the answer mentioned in the brief of appellant's counsel, even if erroneous, did not affect the result of the trial, and did the appellant no in- jury. A knowledge on fhe part of an adverse holder that his title was defective, would not, of itself, prevent the operation of the statute in his behalf. We do not deem it necessary to notice particularly each separate charge asked, and each ruling upon evidence. What we have said covers all the points made by the counsel. There is no reversible error in any of the rul- ings of the court below, and its judgment must be af- firmed. GREENE'S EXECJJTOR vs. SPEER and WIFE. [final hetti.ksiknt ami distribution of decedent's estate.] 1. A I f partial intestacy. — Tn cases of partial intes- tacy, a Ivancementa are ao.t re luired lo be brought into hotchpoti Le, \\ L582, L596,) to entitle the parties to share in the property undisposed of by the will. Appeal from the Probate Court of Marengo. In the matter of the estate of Richard Greene, deceased, on final settlement of the accounts of Thomas J. Woolf, the executor, and distribution of that part of the estate which was left undisposed of by the decedent's will. The decedent died in August, 1856, leaving a widow and six children. By his last will and testament, which was executed on the 14th August, LSo2, and duly admitted to probate soon after his death, he gave the bulk of his estate, which consisted of lands, slaves, money, &c, iu OF ALABAxM A. 451 Greene's Executory Speer and Wife. specific legacies to his wife and children ; but died intes- tate as to certain personal property, which had been acquired by him after the execution of his will, and which was sold by the executor under an order of the probate court; the proceeds of sale, after deducting the costs and expenses of administration, amounting to more than $7,000. The executor filed a petition in the probate court, alleging that the testator, after the execution of his will, had given to his daughter Julia, the wife of William S. Speer, two negroes, valued at $2,200, and $600 in money, and that this property was given to her as an advancement; and praying that Speer and wife might be required to bring this property into hotchpot, or be excluded from the distribution of the funds in his hands arising from the sale of the property undisposed of by the will. The court sustained a demurrer to this peti- tion, and, on the final settlement, decreed to Mrs. Speer a distributive share of the funds equal to the shares of the other children. The executor excepted to this decision and decree of the court, and he now assigns the same as error. Brooks k Garrott, for appellant. — Section 1582 of the Code requires, that advancements, made by an intestate in his life-time, shall be brought into hotchpot; and sec- tion 1596 expressly provides, that, in cases of partial intestacy, "all property not disposed of by will must be distributed :is in cases of intestacy." As the were «\> scific, anil could not be adeemed, the distribution could only be equalized by bringing the property into hotchpot. "A ease of parti d intestacy tails under the ral law applicable I of that character, which | for distribution of the property not thed, as if no will at all had been made." — Bryan v. \ :\ Ala. 205. . T. 1. v • 2 «>f the Code ap. | i only to the iown by the cntiro chapter of which it form- a part. The statutes 452 SUPREME COURT Greene's Executor v. Speer and Wife. relative to advancements, and all the legal principles which the courts have applied to the subject, are in- tended to effectuate the presumed desire and intention of parents, in making an equal aud impartial distribution of their estates among those who have equal claims on their affection aud bounty. To apply the same rule in cases of partial intestacy, instead of equalizing the distribution, would, in most cases, creategreat injustice, and violate the intention of the testator. Whether a gift is to be con- sidered an advancement, is a question of intention, and depends on the circumstances attending the transaction. The subsequent execution of a will, without noticing such gift, is strong evidence of an intention that the gift shall not operate as an advancement; aud equally strong evi- dence would be afforded, where the gift was made after the execution of the will, if no corresponding change, by amendment or codicil, was made in the will. These views are fully sustained by the following authorities: 2 Wms. on Exrs. 128b*; 2 Lomax on Exrs. 3G3, 3G5; Thompson v. Carmichael, 3 Sandf. Ch. 120; Newman v. Wilbourne, 1 Hill's Ch. 10; Snelgrove v. Snelgrove, 4 Dess. 274;' Donneli v. Mateer, 5 Iredell's Eq. 7. • STONE, J.— [June 28, 1861.]— We have duly consid- ered the single question presented by the assignments of error in this case, and are. satisfied the judgment of the probate court must be affirmed. Section 15&2 of the Code, which declares the rule for bringing advance- ments into hotchpot, refers alone to estates of intestates. Looking only to this section, it would require bold inter- polation to bring under its influence estates of testators who left portions of their estates undisposed of by their wills. The argument for appellant rests mainly for its support on section 1596 of the Code. The argument carries the language of the statute too far. It (the statute) provides only for "property uot disposed of by will." What property? Certainly, property owned by the testator at the time of his death ; not property which lie had previously OF ALABAMA. 453 Greene's Executor v. Speer aiul Wife. given off. This property "must be administered and dis- tributed as in cases of intestacy." The doctrine of hotchpot rests, for its justification, on the presumed desire of decedents to equalize the portions of all distributees standing in the same relation to them. In cases of intestacy, it operates with justice and equality, tor it bears alike on all vrho have been advanced. This would rarely be the case, where there is a will. In a ma- jority of cases, parents, during their life-time, have made gifts, by way of advancement, to their older children : and when they come to make a will, they usually attempt to make up to the children not advanced, what they, in their discretion, intend as the equivalent of the advancements previously given off. In other words, the advancements given off, and the bequests contained in the will, are, col- lectively, the distribution which the testator desires to make. Now, let it be supposed that a testator, after exe- cuting his will on the theory above supposed, should ma- terially increase his estate by his industry, or by receiving a legacy; and as to such after-acquired estate, should die intestate. Would not the doctrine here contended for lead to the most shocking inequality ? And yet, in a ma- jority of cases, this precise result would follow. Any rule we lay down, in reference to advancements and hotchpot i rv cases of partial intestacy, must be uniform, and operate alike in all cases, unless the testator lias given express directions to the contrary. We think a rule which should require advancements to be brought in, in cases of partial intestacy, would work much greater oppression, than to follow the letter of section loS2 of the Code, and limit the doctrine to cases of intestacy proper. We have thus far considered this question on the lan- guage of the statute, and the spirit which dictated its enactment. The authorities, both English and American, fully sustain our views. Sir Wm. Grant, speaking of this doctrine, said, "I conceive, the provision in the statute of distributions applies only to the case of actual intes- tacy."— Walton v. Walton, 14 Vesey, 324. Chief-Jus- 454 SUPREME COURT Espy v. Jon< tice Ruffin, in Donnell v. Mateer, (5 Iredell's Equity, 11,) said, "With respect to a personal residue, it has been always held, that it is to be divided equally amongst the next of kin, without regard to gifts, either in the life-time of the testator, or by his will." In Thomp- son v. Carmichael, (3 Sandf. Ch. 129,) it was said, "When one has advanced a part of his children, and then by will devises property to the residue, leaving other property undisposed of; it is a legal and reasonable presumption* that he intended the latter to go to both classes of his children equally, if any of it remained at his death. As to one class, lie has been his own executor; as to the other, he has by his will placed them on an equal footing with the first class." To the same effect are Twisden v. Twisden, 9 Vesey, 426; Johnson v. Johnson, 4 Ired. Law, 9; Sinkler v. Sinkler, 2 Dess. 189; Snelgrove v. Snel- grove, 4 Dess. 291 ; 2 Wms. on Exrs. 1286; 2 Lomax on Exrs. 365, § 15; Newman v. Wilbourne, 1 Hill's Ch, 10. Decree affirmed'. ESPY vs. JONES. [ACTION FOB B4CZACR OF PROMISE TO liAKKY.] 1. Admi nihility of seduction in aggravation of damages. — If evidence o| seduction can be received, in any case, to aggravate the damages in an action for a breach of promise to marry, it is only where the seduction follows the promise, and is effected by means of it: seduction prior to the promise is not admissible evidence. 2. Charge misleading jury. — A charge which predicates the plaintiff's right to recover on the proof of a promise and breach thereof, and entirely disregards the evidence adduced by the defendant tending to Khow a justification of the breach, is erroneous. 3. Assent of parties to contract. — It is essential to the validity of a con- tract to marry, that there should be reciprocal promises between the parties ; but, if a man makes an express offer or promise of OF ALABAMA. 455 Espy v. Jones, marriage to a woman, her acceptance and reciprocal promise may be established by proof of her conduct and action at the time, as well as by express words. ■i. Justification of breach of promise to marry. — If a man promises to marry a woman whom he believes to 1"' virtuous and modest, and afterwards discovers that she is loose nnd immodest, he is justified in breaking his promise; but, to entitle him to a verdict on that ground, the jury must be satisfied that the plaintiff is a loose and immodest woman, that the defendant broke his promise on that account, and that he did not know her character at the time he made the promise. 5. Admissibility of plaintiff** toant of chastity in mitigation of damages. Acts of fornication, committed by the plaintiff prior to the de- fendant's promise to marry her, and in which the defendant him- self participated, are not admissible evidence for him in mitigation of the damages. Appeal from the Circuit Court of Marengo. Tried before the. Hod. Robert Dougherty. This action was brought by Maria F. Jones, against David Espy, to recover damages for a breach of promise of marriage. The defendant pleaded the general issue, "in short by consent, with leave to give any special mat- ter in evidence." On the trial, as the bill of exceptions states, one of the plaintiff's sisters, who was examined as a witness on her behalf, testified, "that she heard defend- ant, in 1853, u>k plaintiff's mother for her, and that, in 1854, plaintiff prepared her dress to marry defendant;" and this witness and another sister both testified, that on the 5th March. 185G, in their presence, defendant prom- ised to marry plaintiff in ten days, in order to induce her to sign a paper, which he had prepared, instructing the circuit clerk to dismiss certain proceedings under the bastardy act, which she had instituted against him; that be repeated the pr<>nii-c after the plaintiff had signed the paper; that the plaintiff several times prepared her clothes, in anticipation of the marriage, and that tl. Pendant always failed to come. It appeared that the plaintiff had given birth to an illegitimate child, on or about the 1st March, 1864, and had instituted pr< ings under the bastardy act against the defendant as its 456 SUPREME COURT Espy v. Jones. putative father; and the circuit court allowed the plain- tiff", against the defendant's objection, to read the record of these proceedings as evidence to the jury ; but after- wards instructed the jury, "that they were not to con- sider the record and papers in the bastardy case as evidence to prove the promise of marriage, or any issue in the cause." The circuit court also allowed the plain- tiff, against the defendant's objection, "to introduce her child for the inspection of the jury, in order to prove, by its alleged resemblance to the defendant, that said child was begotten by him; but there was no other evidence before the jury, tending to prove that the defendant was the father of said child." The plaintiff adduced evidence, "tending to show that, until her acquaintance and associ- ation with the defendant, her character was good;" while the defendant's evidence tended to show, "that her char- acter for chastity was bad, before and after the promise of marriage testified to by plaintiff's sisters, and before ever he became acquainted with her." The defendant read in evidence the deposition of Dr. Vaughn, a prac- ticing physician, who testified, that he attended and pre- scribed for plaintiff, in 1849, when she was infected with a venereal disease; "and there was no evidence tending to show that defendant, before he made such alleged promise, had any knowledge or information of her condi- tion as testified to by Dr. Vaughn, or that she had any venereal disease." The defendant reserved several excep- tions to the rulings of the court on the evidence, which the decision of this court renders it unnecessary to state at greater length. The circuit court charged the jury, among other things: "2. That if they should find, from the evidence, that the defendant had promised to marry the plaintiff", and that there had been a breach of that promise, and that this action was commenced within twelve months from said breach, tlun they must find for the plaintiff"." "3. That if they believed the testimony of the plain- tiff's sisters," as to the defendant's conduct and declara- tions on the 5-h March, 1856, "and that the plaintiff OF ALABAMA. 457 Espy v. Jones. assented to the proposition"' then made by him, then there was a contract of marriage between the parties; and .that if the defendant afterwards failed and refused to marry the plaintiff, this was a broach of said contract on his part." The defendant excepted to these charges, and requested the court to instruct the jury — "1. That if the defendant committed fornication with the plaintiff, and got a bastard child by her, and if she has been wronged in so doing, the law has provided proper remedies for such wrongs; but the jury can give no damages in this case on account of such acts, if they were committed before the 1st January, 1855, if the con- tract relied on was made on the 5th March, 1856. "'2. That if the plaintiff committed fornication with the defendant, and had a bastard child by him, before the 1st January, 1855, the jury may consider that fact in mitigation, but not in aggravation, of the damages arising from the breach of any promise subsequently made. " 3. That if they believed the plaintiff had committed fornication before the defendant's promise was made, and that fact was unknown to him when he made the promise, lie had the right to refuse, on that account, to marry her; and, in such case, they must find for the defendant. "4. That if they believed, from the evidence, that the plaintiff had a venereal disease before the defendant made the promise, and that lac! was then unknown to him, he had the right to refuse, on that account, to marry her; and, in such case, they must find for the defendant.'' The court refused each ot these charges, and the de- fendant excepted to their refusal ; and he now as error all the rulings of the court to which he reserved exceptions. Lomax & Primoh, and Wm. M. Bbooks, fbr appellant. I. W. Gaki; f ra. R. YV. WALKER, J.— [Feb. 15, 1861.]— It has b much questioned, whether, in an action to recover dam- 80 SUPREME COURT Espy v. Jones. for the breach of a prouise of marriage, damnges for seduction may be recovered. It has been distinctly held in Kentucky and Pennsylvania, that in such action seduction cannot be given in evidence in aggravation of the damages. — Weaver v. Bachert, 2 Barr, 80; Burks v. Sbaio, 2 Bibb, 341; see, also, Perkins v. Kersey, 1 R. I. 493. On the other hand, the rule adopted in Massachu- setts, New York, and several other States, is, that where seduction has been practiced under color of a promise of marriage, the jury may consider it to aggravate the dam- ages in an action on the contract. — Paul v. Frazier, 3 Mass, 73 ; Whalen v. Layman, 2 Blackf. 104; King v. Kersey, 2 Carter, 402; Tubbs v. Vankleek, 12 111. 446; Wells v. Padgett, 8 Barb. 323; Green v. Spencer, 3 Miss. 318; Conn v. Wilson, 2 Overton, 233. Mr. Parsons suggests, that damages for seduction should be excluded, where the plaintiff was in actual or constructive service, or lived in a state in which the statute law gave her an action for the seduction; and not otherwise. — 1 Parsons Contr. 553. But we need not consider this question in the present case. It is very clear that, if seduction can ever be allowed to aggravate the damages, where the action is for breach of promise of marriage, it is only in those cases where the seduction follows the promise, and is effected by means of it. We can conceive of no princi- ple, upon which a seduction before the promise of mar- riage, and which, therefore, could not have been a con- sequence of such promise, should be permitted to swell the damages in an action on the contract. — Burks v. Shain, 2 Bibb, 343; Tubbs v. Vankleek, 12 111. 447- The court erred, in refusing to give the first charge asked by the defendant. [2.] The second charge given was erroneous. It af- firms, in efiect, that if there was a promise to marry, and breach of that promise by the defendant, the jury must find for the plaintiff, without regard to any testimony which had been introduced tending to justify the breach. As the judgment must be reversed for the errors OF ALABAMA. 459 Espy v. Jones. already pointed out, we need not go into a "particular examination of the other questions presented by the record. It will be sufficient for the future conduct of the cause, if we lay down some general principles which govern actions of this sort. [3.] It is essential to the validity of a contract to marry, that the promises should be reciprocal. But, if a man makes an express offer or promise of marriage to a woman, the acceptance thereof by the latter, and the promise made by her in return, may, so far as it is neces- sary to be proved, in order to enable her to sustain an action against the man for a breach of his engagement, be established through the medium of i.er conduct and actions at the time, as well as by express words. If a man offers to many a woman, provided she will come from America to England, or any distant part, and marry him ; and the woman forthwith undertakes the journey, and is ready and willing to marry at the place appointed, this is evidence of the acceptance of the offer, and of a reciprocal promise on her part, which will enable hei to maintain an action for a breach of promise of marriage. — Addison Contr. 677 ; Ilutton v. Mansell, Mod. 172; Daniel v. Bowles, 2 C. & P. 553; Wetmore v. Wells, 1 Ohio, 26 ; Wightman v. Coates, 15 Mass. 1. [4.] The general rule, as to what will justify the breach of a promise of marriage, cannot be better stated than in the words of Abbott, C. J., in Irving v. Greenwood, 1 C. & P. 350. "If any man has been paying his addresses to one that he supposes to be a modest person, and after- wards discovers her to be a loose and immodest woman, he is justified in breaking any promise of marriage he may have made to her; but, to entitle a defendant to a verdict on that ground, the jury must be satisfied that the plaint id* was a loose and immodest woman, and that the defendant broke hit promise on that account ; and they must also be satisfied that the defendant did not know her character at the time of the promise; for, if a man knowingly promise to marry such a person, he is bound to do so." See, also, Capchart v. Carradine, 4 Strob. SUPREME dm'r. 42, ; »k, I !'.-;>. 256; Palmer v. Andn 7 Wend. 144; Boynton v. Kellogg, 3 Mass. 188; v. Merrick, 1 Cafr. & E. 468. [">.] It is to l»e inferred from what is said in Beach v. Merrick, 1 Carr. & K . a,) that although a \)vc\ act of fornication by the plaintiff, which was known to the defendant when he made the promise, will be n ■ to tin action, still it will go to lessen the dam Bee 1 Parsons Cotitr. 550, note (n commenced ; that he never afterwards returned, to her, and t he property ; and that she held and claimed it, as her own individual property, for a continuous id of more than twenty j APPEAL from the Circuit Court of Wilcox. Tried before the lion. John K. Henry. Turs action was brought by the administrator of Mrs. Lucy Bell, deceased, agaipst Williara C. Bell, to recover pertain slaves, which the defendant- held and claimed as the administrator «d' W, Bell, deceased, who was in his life-time the husband of the plaintiff's iutesl and was commenced on the 10th March, 1858. Thecase re this court at its June term, 18G0, and may he found reported in 36 Ala. 166-82. The ftiets in proof on the second trial, aa se( out in the hill of exceptions, were substantially the same as on the first trial, and may he thus stated : W. and Lucy Bell were married, in this Slate, in the year i I Lucy being then widow of John Raiford, di .: and tbey lived together as man and wife, in Clarke count}-, until 1821, 1822 or . (the witnesses could not r< the precise time,) when Bell left his wife and family, ami went to Mobile, where he continued to live until his death, which curred in til . (two oi- lier abandonment by her husband,) Mrs* 1 to Wilcox co . er live chil- dren (three by tlaii >rd, and two by Bell) with 1. ido there until her death, in i Bupportii r child tan without any a and. Ii. of John Raiford ite, a negro woman 1 Linda, who, will, | bal tim ' nued in the uni I n individual p I all the ordinal - jhip over tl 2 SUPREME COURT Bellv. Bell's Adm'r. ap t<» the time of her death. Letters of administration on the estate of George W. 15. '11 were granted to the de- fendant on the 4th October, 1855, (whether before or after the death of Mrs. Bell, the record nowhere shows.) and he soon afterwards took possession of the slaves, claiming them as apart of his in testate's estate, and returned them as such in his inventory. Letters of administration on the estate of Mrs. Lucy Bell were granted to the plaintiff on the 17th December, 1£ "On the' fbregoing evidence, the court charged the jury, that if they believed, from the evidence, that the plaintiff's intestate, Mrs. Lucy Bell, received the e sued for from the administrator of her former husband) as her distributive Bhare of said estate; and that tie fendant's intestate, George W. Bell, at and before that time, had abandoned his wife, the said Lucy, and never lived with her any more; and that the plaintiff's ii tate retained the said slaves in her undisturbed possession for a period of more than twenty years before her death, and up to and alter the death of her said husband, with- out any claim to them being set up on his part ; and that' the plaintiff's intestate, during this whole period of twenty years possession, had the entire and undisturbed control of said slaves, exercising acts of ownership over them, and openly and notoriously claiming them as her own individual property all the time, — then the law would raise the presumption from these facts, if unex- plained, that Bhe acquired the property in such way as to prevent the marital rights of her husband from attaching, and to vest the property in her to the exclusion of her husband's marital right.-; and this, notwithstanding said George W. Bell died before the twenty years possession had elapsed, and there was no administrator on his estate until after the twenty years possession had elapsed." The defendant excepted to this charge, and requested the court to instruct the jury, "that, if they believed all the evidence, they mtifit find for the defendant;" which charge the court refused to give, and the defendant ex- cepted to its refusal. OF ALABAMA. Bell v. Ball's Adru'r. The charge given, and the refusal of the charge risked, are now assigned as error. Byrd & Moroait, with L. 8. Lude, for appellant. — The doctrine of prescription is founded on the pre- sumption of acquiescence in t!i tiori of a hostile claim, and requires an adverse possession to support it. — Cockrell v. Brown, 38 Ala. 38; Rouhdtree v. Brantley, M:i. 544. But there can be no adverse possession be- ind and wife. At common law, the po siou of the wife, during coverture, is tl i ssion of the husband, and cannot become antagonistic to his rights. There can be no presumption of acquiescence on his part in the assertion of a hostile claim by the wife, because he has no remedy by action against her. To say that he has a remedy by simply asserting his marital rights, and that lis failure to assert them during coverture shows an abandonment of them, is, in effect, to make the wife's title depend, not on the doctrine of prescription, but on the husband r, which, as WAS decided on the former appeal, can hi ich effect. — 36 Ala. 466. D. W. Baine, contra.— I ion, in i: tech- nical sense, is not a a ingredient of a title by [de- scription. If it were, the doctrine of prescription would be entirely u od meaningless, since the title would, in every case, be compb te, under the shorter statute of limitations, personal property is in < troversy,) long before the prescription could be invo The doctrine imption, d by the charge of • below, thing more than the old - mon-l.iu :h;in a statute of limita- tions. These latter bai dy, and operated on the title only in that way. But the doctrine of \ lion pply to i . which ti n by t d in McArthur 2. It requires for its appli- . i laim <>f right, incoi SUPREME COURT Bell v. Bell's Adm'r. , . — — — ___ — _ with, and hostile to, the claim sought to be barred; and this is the true test, as established by many aualogous ions. Thus, it has been hold, that an administrator, who makes an illegal and void sale of the property of the tate, is estopped by his own act from suing for the prop- erty ; and that the statute of limitations does not begin to run in favor of the purchaser, as against the estate, until the appointment of a succeeding administrator; in other words, that the purchaser cannot be considered as holding adversely, in the strict technical sense of the term, until there is some one who has a right to sue. — Pistole v. Street, 5 Porter, 14; Hopper v. Steele, 18 Ala. 828; Lay v. Lawson, 24 Ala. 188; Wyatt's Adm'r v. Ranibo, 29 Ala. 525. Yet it has been held also, in an equal number of cases, that if the purchaser holds posses- sion for twenty years, his title will be protected by the indulgence of the presumption, that a valid authority to sell originally existed. — Gantt v. Phillips, 23 Ala. 275; Lay v. Lawson, 23 Ala. 301; McArthur v. Carrie, 32 Ala. 75; Wyatt's Adm'r v. Scott, 33 Ala. 317. So, it has been held., that the p ^session of a mortgagor or purchaser of lands cannot be adverse until the debt is paid; (Byrd v. McDaniel, 33 Ala. IS; Relfe v. Relfe, 34 Ala. 505;) yet, if such 1 , m continues twenty years, the title becomes perfect by the presumption of payment. It is said in the case last cited, that "it would be a violation of all principle to allow the acquisition of title by the lapse of time;" yet the same result is attained by apply- ing the doctrine of presumption,— thus clearly recogniz- ing the difference between the two principles. — See, also, Harvey v. Thorpe, ,28 Ala, 2G-1; Rhodes v. Turner, 21 Ala. 210. The cases above cited show, that, after the lapse of twenty years, a deed, payment, grant of administration, regular order of sale, or (to use the language of the court, in Sims v. Aughtery, supra,) "almost anything ele>e, will be presumed, to (juiet the possession. Why cannot the principle be invoked by the wife, in a case Jike this? OF ALABAMA. V 465 Bell v. Roll's Adm'r. Her possession, it is true, is, technically, the possession of her husband; but in the same sense the possession of the mortgagor or purchaser is that of the mortgagee or vendor. On the facts supposed in the charge, her pos- session has been under claim of right, and has continued more than twenty years ; and it is the duty of the courts, when asked to disturb her possession, to presume that she claimed a separate estate in the property, or anything else that will perfect her title. A. J. WALKER, C. J.— [June 10th, 1861.]— When this case was before in this court, we announced the prin- ciple, applicable to cases governed hy the common law that the wife can not possess personal property; that her possession is the possession of the husband, and that this principle resulted from th-e unity of husband and wife. It is not the same principle which applies to the relation of mortgagor and mortgagee, and of landlord and tenant. In those cases, the doctrine that the possession of the one is the possession of the other, grows out of the law of estoppel. The possession of the wife is the j n of the husband, because her legal existence is merged in his, and the wife is positively incapable of a possession, in the if the law, distinct from that of the husband. From this principle it is an inevitable deduction, that the law is the husband of Mrs. Bell to have been, through her, in p a of the properly in controversy up to his death. This being tl vas no antagonism of possession ou the part of Mrs. Bell to her husband. It •ntended, and indeed it could not be, either upon authorit;. on, that the presumption, which is drawn for tl ing of tit! sa from the lap-.- of time, is per- ible in tl of any enjoyment of the right al to ttial sought to he bar: e think it clear, that 1! i in of n of Bell, under a claim of title in herself, would 1 derived, under t SUPKKME COT'RT Bell v. Bell'a A-lin'r. mon law, would enure to the husband ; and thus we would have the wife's antagonistic • in divesting the hus- band's title, which would by operation of law be in the husband. We do not intend, in any thing we have said, to in- fringe the doctrine, that in equity the wife is deemi to her separate estate, a femme sole. It may he tin a wife were in possession of property, claiming openl that it was conveyed to her as a separate estate, so as to exclude the husband's marital rights; and if she had con- tinued to possess and enjoy the property, under claim of it as a separate estate, for more than twenty years, the law would presume, against the husband, that the claim was founded on a valid conveyance creating a separate estate. In a court of equity, the wife is allowed to assert her claim to a separate estate in antagonism of her husband's rights. But those principles can not aid !. It raises the presumption, not upon the fact of the long-continued assertion by Mrs. Bel) of a claim that the slaves were conveyed to her as a separate estate, but upon the fact that she was deserted by her husband, and claimed and possessed the slaves "as her owirindividual property." There is a clear distinction between the claim of a separate estate, created in sn manner as to exclude the husband's marital rights, and a naked claim of title in the wife against the husband. A wife may claim that a separate estate was vested in her. She can not claim thai Bhe holds property in p u ad- versely to her husband, except upon the ground that it is a separal ; for her possession, except so far as chancery recognizes her right to hold a separate estate and confers upon her, in reference to such estate, the privileges of a femme sole, is the possession of the hus- band. The possession by Mrs. Bell, claiming that the slaves belonged to her, and that she held them adversely to her husband, no matter how long, could never avail. An adverse p >n, or an antagonistic enjoyment, for twenty years, may create the presumption of a title in favor of persons iui juris. It never can create the presump- OF ALABAMA. 467 "Watt's A'lm'r v. Watt's IHstribateos. tion of a title in the wife clothed with the quality of an exclusion of the husband's marital rights. If the absurd- ity could be conceived, ot a wife's holding adversely to her husband, what reason or authority is there to support the position, that she thereby not only acquired a title, but a title of such a character as to exclude the husband? There was no evidence conducing to show that Mrs. Bell ever claimed to hold the slaves under any conveys Bnce which created a separate estate. The court, there- fore, erred in refusing the charge asked by the defendant, as well as in the charge given. Reversed and remanded. WATT'S ADM'R vs. WATT'S DISTRIBUTEES. [FINAL KFTTI.F.MFNT OF ADMINISTRATOR'S ACCOtTHTS.] 8 of final decree. — A decree of tlio pi mrt, which purports to have b m final settlement "I' the accounts and and vhich had come t.. his hands, the amount of his disbursements, and tl i"fi En his hands fbr ribution among creditors-; and by which i- it ie ordered, ad- jud that the account, a& stated by the i illowed, i tid Bled a- a final -< • 1 1 lt>- ive, until reversed by the ]. ro- ll ich .■ n( of tli- ■ ,n Un- tile forn • SUPREME COURT Watt's Adm'r v. Watt's Distributees. i ion of said allowed claims, be equally di among the four minor heirs of" the decedent, — has not | Bites of a final decree, and will not support eith :ecution or an appeal. Appeal from the Probate Court of Sumter. In the matter of the estate of George L. Watt, d< on final settlement of the accounts and vouchers of Joel "Watt, the administrator. The citation was issued on the 12th March, 1860. The administrator appeared at the ensuing April term, and moved the court to dismiss the proceeding on the ground that the estate had been de- clared insolvent in September, 185"), and that he had made a final settlement of his administration on the 17th January, 1857; and, in support of his motion, offered in evidence the decrees rendered by said probate court at ■ times. "After hearing the evidence, and the argu- ment of counsel, the court overruled said motion; where- upon the defendant excepted. The court then proposed aside and vacate so much of the said decree of Jan- uary 17, 1857, as declared said settlement to be final : to which action of the court the defendant objected. The court overruled the objection, vacated so much of decree as declared said settlement to be final, and pro- ite an account in accordance with the cita- tion ; to which the defendant excepted." The decree of January 17,1857, and the decree from which this appeal was taken, are in the following words: "January 17, 1857. This day came up for final action and decree, in pursuance of a former order of this court, and after advertisement for three successive weeks in the Mint-current and vouchers of the administrator for a final settlement of his administration of the estate of George L. Watt, deceased ; which, upon examination, shows a receipt of assets to the amount of . and disbursements, properly vouched, to the amount of £355 40; leaving a balance of §1585 88 for dis- tribution among the creditors of said estate. And it ap OF ALABAMA. 4fi9 Watt's Aditi'r v. Watt's Distributees. pearing that said account is legally and fairly stated, and properly vouched, it is ordered, adjudged, and decreed, that the same b i r< ceived, passed, allowed, recorded and filed as a final settlement of said estate. After a careful examination, the following claims were rejected and dis- allowed, for want of legal proof of their correctness," (specifying them.) " It is ordered, that said estate pay eighty per cent, on the claims (iled and allowed against said estafr '• Probate Court oi Sumter, April term, 1860. "This day came up for action and decree, in pursuance of an order made at the March term, 1800, the account stated by this court, under section 1817 of the Code of Alabama, against Joel Watt, administrator of the estate of George L. Watt, deceased; and notice having been issued and executed upon said Joel Watt, requiring him to file his account-current and vouchers for a final settle- ment on this day, and notifying him that, if he failed to file them, the court would pass the account heretofore stated against him; the said Joel Watt came into court, and moved to dismiss said proceedings against him, be- cause the citation w;. • inse raid estate was declared insolvent, and final settlement of it made in January, 1857; the apart has no juris- diction over the matter, and because neither the creditors DOr the heirs of said I I are parties to the proceed- ing. Thecourl overruled said motion { and the said Joel Watt refusing to file his account-current and vouchers for a settlement, the court proceeded to examine and pass the account her inst him. The ac- count thus stated by the gainst the said ad mi nil-; Irator, charges him with the followii nich are shown to have come into hi- ion, and not to have accounted for or dial i by him, and which were totally omitted in bis form incut — to-wit," to the amount of 81 The d< then allows credits to the administrator, amountii %•.» ; 48, and pr — "Ami it appearing to the 470 SUPREME COURT - Adm'r v. Watt's Distributees. satisfaction of the court, that the said amount I 99) bharged against said administrator as aforesaid, came into his p m as such administrator; and that he omitted to account for, or charge himself with said sum, in his settlement made on the 17th January, 1857; and that only $223 48 of said sum lias been disbursed on behalf of the estate, the creditors, or the heirs-at-law; and it' fur- ther appearing to the court, that the omission of the ad- ministrator to charge himself with the amount of said account of sales and inventory, in conformity with the first subdivision of section 1802 of the Code, as well as his failure to distribute the same, renders void the decree made on the settlement of January 17, 1857, — it is now therefore considered, ordered, and decreed by the court, that so much of said decree as declares the said settle- ment of January 17, 1857, to be final, be, and the same is hereby, so amended and altered as to make the same — what it was in fact — a partial settlement and distribution of said estate, and to render the said Joel vVatt, adminis- trator of said estate, accountable to this court lor the goods, chattels and moneys of his intestate, which he is shown to have omitted charging himself with in his ac- count gassed upon the 17th January, 1857. It is also considered and decreed by the court, that the claims which were allowed by this court in the settlement of 17th January, 1857, be paid in full, and that whatever sum shall remain, after the satisfaction of said allowed claim-, be equally divided among the four minor heirs of the said George L. Watt, deceased; and it appearing to the satisfaction of the court, that said administrator has overpaid several of the creditors heretofore, by reason of the rejection of their claims, it is considered and decreed- that he retain, in all such cases, whatever may be still due them on their allowed claims, to reimburse him for said payments on claims that were rejected. It is fur- ther ordered, that the judgments on execution docket Ho. 10, in favor of the creditors and heirs-at-law of the said George L. Watt, be, and the same are hereby, made a part of this record, and that executions may issue on said OF ALABAMA. 471 Watt's Adm'r v. Watt's Distributees. Judgments, for the amounts due said creditors and heirs- at-law respectively. It is further (ink-rod. that in order to make up a complete record of the said Case, the inven- tory, account of sales, and settlement made on the 17th January, 1857, be, and the same are hereby, made a part of the record in this cae The overruling of the motion to dismiss the ] ings, and the decree rendered by the court, are now signed as error by the administrator. Coleman & Van deGraff, for appellant. STONE, J.— [July 11, 1861.]— In January, 1857, a final settlement was had of the administration of appellant on. the estate of George L. Watt, deceased. Thus the mat- ter rested for three years, when these proceedings were set on foot to bring the administrator to another settle- ment; and in such new proceedings, the attempt was made to hold the appellant accountable for other assets of the dfctate, which, it is alleged, were in his hands at the time of the first nt, and were not accounted for. To these proceedings the administrator inter] ■ bar the decree on the former final settlement. This defense the probate court overruled, and thereupon \. ted the former judgment as a final decree, and pronounced it to he only a partial settlement. On what evidence the probate court acted in vacating the former decree in part, and rendering a new one, we are not informed It is obvious that the record did not furnish evidence that there had b.eu any clerical error in the matter of entering up the decree which the court in I le. On the contrary, it is clear that the judicial mind did pass and pronounce on the question of the amount of assets in the administrator's hands, and announced the result. It is also clear that the probate court did decree aud determine that the settlement then le was — what it purported to be — a final settlement. 81 A decree rendered under such circumstances, is binding • partii . until it is reversed in the pr< court rendering it has rto pov< or annul it." — Barnctt v. Tarrcn Allman en, 31 Ala. 161 \ v. L 3 Ala. 2 Norman v. Norman, . Duke v. I» mona v. !'■ Via. 406; Matthew Doutliitt, 27 Ala. -T'"'-. Caution \\ I this term; ih. 15 Ala Landreth v. Landreth, . Morrison v. Morrison, v. Ins. (',,.. 1 ! A:. i. rkins v. Moore, IG Ala. 12. Al t liouLfli it may be, and probably is true, that in the settlement of January, 1857, there wasa failure t< tin 1 appellant with certain assets of the estate in his ha: yet tin 1 final decree then rendered must forei the door to a re-investigation <>('iliat question, in that court. That tin an end of litig ad that the sanctity ami inviolability of the judgments of the courts having competeut jurisdiction are of infinitely grei importance than the complete justice of an individual . arc propositions vindicated alike by reason and uthority.— -1 i We have Baid thus much on the merits ol tliis ca and from the principles above announced, it is manifest that, in the proceeding of the probate court of Sun since January, 1857, thai court has mistaken its powers. It should . II orderi ii has made, in what we have characterized a.- the renewed proceedings. But, under later proceedings, there does not appear to have any final decree rendered. True, the principles of a decree arc laid down ; but no judgments were rendered, rtaining any amounts due to t lie various persons, — the distributees in particular; nor, indeed, are the name the distributees mentioned in the record. The balance is not ascertained, and the persons betweeu whom the money is to be divided, are described simply as "the minor heirs of said George J;. AVatt, deceased." Nothing • lone which placed the case in a condition for collection, or for the issue of executions for the collection OF ALABAMA. 473 Crymesv. WhiteSi Johnson. of the amount. That is not a money judgment, which does not authorize the issue of an execution ; and no exe- cution could issue forth lined balances. The judgments, to be final, should have been spi cific, and in favor ol the several distrib j name. — Brazeale v\ Braaeale, 9 Ala. 491; Merrill v. Jones, 8 Poi Bettfl *-. Blackwell, 2 8. &P. 873; JudgeofLime nch, 8 S. & P. 263; Ilollis v. Caughman, 22 Ala. 478; Harri- son. . 7 Ala. 739; Andrews v. Hall, There being no final decree in the matter of the renewed proceedii e appeal must he dismissed. CRYMES 05. WHITE k JOHNSON. riOS ON OM I FOR GOODS SOLD AXD DELIVERED.] 1. toitwotry ni taw.— Where to tho ndant in an acti >n i of disprovin . -■■ \\ hich ny liis adn ^ ■with a ; a* where he plead ■ ue to was i f .• i ually, be i t)i l( th< ■ ■ I ■td ■ - i vi«l . 1 2313,) in i b > said J »v :n.: . • * | 81 474 S UPREM E COURT mes v. White & Johnson; Appeal from the Circuit Court of Macon. Tried before the lion. Robert Dougherty. This action was brought by the appellees, suing as late partners, and was founded on an open account for goods,, wares ami merchandize, sold and delivered to the defend- ant during the years 1853 and lb54. The defendant pleaded, "that he is not indebted to the said firm of "White & Johnson, as the plaintiffs have above com- plained," kc. ; and issue, was joined on that plea. The only matter in controversy on tho trial was the validity of eci tain payments made by the defendant to the plain- tiff Johnson; and the only questions presented for revis- ion in this court, relate to the rulings of the circuit court on the admissibility of evidence touching that matter. The material iacts are stated in the opinion of the court. Gunn & Strange, for appellant. Clopton & Ligon, contra. R. W. WALKER, J.— [July 3, 1861.] — 1. The plaintiffs propounded interrogatories to the defendant, under the statute. The defendant had interposed the plea of pay- ment; and the plaintiffs, with the view of meeting this defense, among other questions, inquired of the defend- an', with whom, and at what time, he had settled the nuts sued on, how much of the same he had paid in money, and how much was paid in individual debts due iiom -Johnson, one of the plaintiffs, to the defendant. TIk defendant, in answering, stated, that he had settled the accounts sued on with the plaintiff Johnson ; that he had paid the same partly in cash, and partly in medical a. .mints due from Johnson to him ; and in reference to the account of 1853, he adds: "Defendant made said payments, and said credits were made, after said White had sold out his interest in the concern of White & John- sou, and while Johnsen was the sole owner of the goods, notes, books of account, &c." On motion of the plain- tiffs, this part of the defendant's answer was suppressed OF ALABAMA. 475 Crvmos v. White & Johnson. by the court. Giving to the sections of the Code (§§2330-6) Authorizing the examination of parties by interrogatories, the same construction which was put upon the old stat- ute on that subject, (Clay's Digest, 341, § 100,) we must hold, that the court erred in suppressing that portion of the defendant's answer above quoted. According to our former decisions, interrogatories under the statute are governed by the same rules that apply to bills of discov- ery in chancery, so far as relates to the nature of the dis- covery sought, and the effect of the answers as evidence when made. In Kaltmarsh v. Bower, (22 Ala. 221,) this subject underwent a careful consideration ; and it was there held, that, as- in an answer to a bill of discovery, nothing can be considered impertinent, which tends to disprove the existence of the cause of action or defense set up in the bill ; so an answer to interrogatories under the statute, whether it is purely responsive, or contains affirmative irresponsive allegations in avoidance of the demand, cannot be made the subject-matter of exception. See, also, Pritchett v. Munroe, 22 Ala. 501; Wilson v. Maria, 21 Ala. 350. In the present case, the plaintiffs sought to elicit from the defendant the fact, that all of the payments he relied on had been made to Johnson, and that in part they were made by discharging the indi- vidual indebtedness of Johnson to the defendant. Ac- cording to the principle settled in the cases cited supra, the defendant was not bound to confine himself to a sim- ple admission or denial of the facts thus sought to be elicited. If he admitted the facts to be as indicated by the interrogatories, be had the right to accompany that admission with such an explanation of them as the justice of the case required. lie had the right to confess and avoid. His admission that he had paid the accounts to Johnson, in individual debts of the latter to him, would, if unexplained, have deprived the pay meat of all value as a defense to thia suit; and he had the right to aceompany his admission of that fact with the statement of such other facts as showed that the payment operated a legal dis- charge of the demand. 476 SUPREME COURT Cry b v. White £ Johnson. 2. The defendant introduced evidence tending to show that the plaintiff White had sold out his interest in the goods, notes, books of account, &c, of the firm, to his part- ner, Johnson ; and that, after this sale, the defendant had paid the accounts sued on to Johnson, by crediting the same on individual debts due from Johnson to the de- fendant. It appears that, after the introduction of this evidence, the plaintiff White was offered as a witness under the statute, to prove the correctness of the demand sued on, the requisite notice having been previously givenJ On his examination, he was allowed to state, that the co-partnership of White & Johnson had not been dis- solved; that he Lad made no sale to Johnson ; that John- son had no authority to settle the books by any individual debt of his due the defendant ; and that he was a co-part- ner with Johnson, and interested in the goods sold in 1853 and in LS54, and in the books. It was not the de- sign of section 2313 of the Code, under which the plain- tiff was introduced, to make the parties general wit- nesses. — Waring v. Henry, 30 Ala. 724. All that the plaintiff is competent to establish, is the correctness of the demand. It is true, as was held in Jordan v. Owen, (27 Ala. 155,) that the plaintiff cannot be permitted, under this section, so to shape the facts, which he proposes to pvove by hie own oath, as to deprive the defendant of the right to prove by his oath that the demand has been paid. In cases falling within this section, 'the correctness of the demand' must be regarded as not proved by the plain- tiff's oath, unless he swears that it has not been paid. Hence, he must not only state facts which, if proved by other witnesses, would make out a prima-facie case of indebtedness of the defendant to him, but he must go further, and swear to the fact of non-payment of the in- debtedness. But where, as in this case, the defendant sets up, as a defense to the action, a payment not made to the plaintift; and the validity of such payment as a defense, depends upon an alleged previous transfer of the claim to the person to whom the payment was made, it is not allowable for the plaintiff to testify in rebuttal of theevi- OF ALABAMA. 477 Lawrence v. Ware. deuce of transfer ottered by the defendant. If the plain- tiff was permitted to contradict the evidence offered by the defendant, of an independent fact of this sort, it would be difficult to fix any limit to his right to testify- in the case. It is obvious, that the testimony of the plaintiff — that the partnership was not dissolved, that he had made no sale to Johnson, and that the latter had no authority to settle the books by any individual debt of his due the defendant — was not evidence necessary or proper to establish the correctness of the demand, in the first instance, and was irrelevant, except so far as it went to disprove the alleged transfer to Johnson, or the valid- ity of the defendant's payment to him. In any aspect, it. was strictly rebutting proof; and we hold, that the court erred in permitting the plaintiff to testify to the facts above mentioned. — vSee, further, West v. Brunn, 85 Ala. 263; Flash, Ilartw'ell & Co. v. Ferri, 34 Ala. 180; Ben- nett v. Armistead, 8 Ala. 507 ; Kirkman v. Eaton, 35 Ala. 212. Judgment reversed, and cause remanded. 'E i LAWRENCE vs. WAKE. i kCTIOM OH PKOKIMORY NOTE, BY ASSIGNEE AGAINST VAKKR.1 i ofjudgmt >,< as bar. — Where a promissory note, which har collection by suit : and, payment having tsed, th.' s to an attorney, « ho, not be ing informed "t (!.■■ name of the r»'::l owner, brought sull on it in tin' name of the agenl . and tided, .on the | tint tbe . I meat in thai > tion on the note by tli>- owner, who was not shown to have li.nl notice of tin' ;>■ n.lency of that action. 478 SUPREME COURT Lawrence v. Ware. AiTKAL from the Circuit Court of Shelby. Tried before the IIou. \V.\i. S. MuDD. Tins action was brought by Noah Lawrence, against Horace Ware ; was founded on the defendant's promis- sory note for $87 87, dated 25th May, 1854, and payable on the 1st January, 1855, to Matthew Lee or order; and was commenced on the 3d August, 1858. The de- fendant pleaded a former judgment on the note, in his favor; and issue was joined on that plea. On the trial, as the bill of exc states, after the plaintiff had read in evidence the note on which the suit was founded, the defendant offered in evidence the record of the suit on which he relied as a bar. That suit was brought in the name of one L. Vandever as plaintiff, and against the de- fendant in this case; was founded on the same promise note which is the foundation of the*action in this case; ami judgment was rendered, on the 11th March, i on the verdict of a jury, in favor of the defendant; but the record does not show what pleas were interposed. "It was admitted, that on the trial of that suit, under the plea of set-off, the defendant proved, that he had employed Mat- thew Lee, the payee of said note, to transport a large quantity of pig-iron for him, in flat-boats, down the Coosa river to Wetumpkaj that said iron was sunk in the Coosa river, in consequence of s^l Lee's failure to perform his duties in reference to the transportation, and was thereby wholly lost to the defendant, and that the value of said iron was greater than the amount of the said note. It was admitted, also, that the only issue tried in that suit was the validity and sufficiency of the said set-off, and that the jury found their verdict for the defendant on that issue. It was admitted, als*, that Lawrence, the plaintiff in the present suit, held said note # by transfer from said payee by delivery, and that said transfer was for a . valuable and sufficient consideration. It was proved by said Vandever, on the trial in this case, that said plaintiff (Lawrence) delivered said note to him, and requested him to call on Ware, collect the money, and, if paid, send the OF ALABAMA. 479 Lawrence v. Ware. money to him; that said witness called on defendant for the money, who failed and refused to Jsay the same; that he then informed plaintiff, who resided in Calhoun county, of the defendant's failure to pay the note, and was in- structed by him to place it in the hands of an attorney, for collection by suit; that, being unacquainted with any attorney in Shelby county, he handed said note to one Moore, to be delivered by him to ;m attorney, but did not tell said Moore to whom said note belonged ; and that he (witness) had no interest in said note, and had no know- ledge that the suit had been brought in his name until after the same hod been tried. Il was admitted, that the suit was brought by the attorney in the name of said Van* dever, because he was informed that it. was sent by him, and the name of no other owner was disclosed." On the facts above, stated, the plaintiff proposed to prove, "that the alleged set-off; proved by the n< fendanl on the trial of the former suit, was unju>: . untrue, and improperly allowed; that the defendant su> aiued in fact no loss or damage ii of the sinking • f the iron in the river; that the nil I.e. for the transportation of the iron, was made aft. i ll •• de- fendant had notice of the tranefer of said note b; Baki plaintiff; and that said note was in faei gi\ a debt due. from said defendant to plaintiff, (ex< mall balance due from said defendant to Lee,)and v iven : Lee informed defendant that he v. : the note to plaintiff." dence, and charged the jury, "that, if they beli evidence, tl find for I • ndatrt." The plain- till excepted to the ruling of the court in el u evidenci by him, and to the charge to the jury; and he no.v error. S. Leipkr, for appellant. M.m; i i /. A. .1. WALKER, ('. J.— [June 7. 1- d.J- principle is, that judgments aa 1 . ling SUPREME COURT Lawrence v. "Ware. on parties and privies. The plaintiff in this suit was mother a party nor privy to the former suit which 19 pleaded in bar. With the person in whose name the for- mer suit was brought, the plaintiff occupied no relation- ship, in reference to the property in the note, which would constitute privity. — 1 Greenleaf on Evidence, §§ 189, ">23. The only relationship which existed between them, was that of a temporary agency on the part of the plaintiff in the former suit, to demand payment of the note, and, in default of payment, to deliver it to an attorney for collec- tion. It was decided in Mayer v. Faulkrod, (4 Wash. C. C. 503.) that where the suit was brought in the name of an improper plaint ill, and a recovery had, and paymentmade, there being no collusion, the payment would- constitute a defuse to an action by the true owner of the cause of action. But that decision is put expressly upon the ground oi' a payment made by the legal and compulsory sentence of a competent tribunal ; and it is admitted that, in the absence of such payment, the former judgment would be no defense. Besides, the correctness of that de- cision is doubted. — 2 Part Cow. & Hill's Notes to Phil. Ev. (3d ed.) 107. • It is true that the court will always inquire who are the real parties, in determining whether a former judg- ment is a bar. But there is nothing in the record in this case, which authorizes the inference that the plaintiff was the real party in the former suit. The other suit was, as to him, res titer alios acta. He had no right to control the proceedings in the case, or to produce or cross-examine witnesses, or to appeal ; and it does not at all appear that he participated in conducting it,- or even knew of its existence. Reversed and remanded. OF ALABAMA. 481 Cleveland v- Pollard. CLEVELAND vs. POLLARD. [bill in EQUITY TO subject separate estate of siakfikd woman TO pay- ment OF DEBT. I 1. Sufficiency of service. — Where one of the defendants was described in the original bill as Charles T. Cleveland ; and the sheriff re- turned the subpoena "executed on Charles //. Cleveland, and Charles T. Cleveland not found "; and the bill was afterwards amended by substituting //. for T. as the initial letter of the mid- dle name, — held, that the service was sufficient, and that the vari- ance was, at most, an immaterial misdescription. between trustee and cestui que trust. — To subject a married woman '8 separate estate, created by deed or will, to the payment of a debt contracted by her with her trustee, or with a partnership of which he is a member, it is not enough for the complainant to aver and prove that " the articles were furnished by her express desiiw under the faith and credit ofJier separate estate, and were suitable and proper to her condition in life": he must repel the imputation of bad faith, which the law casts upon him, by show- ing that the prices charged were reasonable, and that he made no profit by the transaction. Appeal from the Chancery Court of Russell. Heard before the Hon. James B. Clark. The bill in this case was Hied by Charles T. Pollard, Samuel (}. Jones, and William C. Tonga, as partners and joint owners of the "Chewacla Lime Works," against Mrs. Elizabeth E. Clo\ land, Charles T. Cleveland, her husband, ami William C. Yongc, her trustee; and sought to subjeel Mr-. Cleveland's separate .held under the will of her .i father, t<> the payment of a debt contracted by her with the complainants. It all sged, that the complainants had furnished lumber, lime. &nd other material.-, ami had advanced money, towards the struetion of a dwelling-house on a lot belonging to Mrs. Cleveland; that "tl furnished to her, by hei desire, during the 1856, ami 1857, vari- 482 SUPREME COURT Cleveland v. Pollard. ous articles suitable and proper to her condition in life, and advanced various sums of money to her, and for her benefit, in the same way, and all under the faith and credit of her said separate estate"; and that said separate estate consisted of two slaves, a tract of land containing about eighty acres, and a four-acre lot on which her dwelling- house was situated. In the original bill, Mrs. Cleveland's husband was described as Charles T. Cleveland; but, the sheriff having returned the subpoena "executed on Charles IT. Cleveland, and Charles T. Cleveland not found," the bill was afterwards amended, by substituting H. for 7. as the initial letter of his middle name. Decrees pro confesso were entered against all the de- fendants, in default of their appearance; and at the ensu- ing term, the cause having been submitted for decree, the chancellor held the complainants entitled to relict, and ordered a reference to the master, to ascertain and report the amount of the complainants' debt, the value of Mrs. Cleveland's separate estate, in what it consisted, and what part of it could be sold with least detriment to her interests. At the next term, after the master's report had been made, the defendants Cleveland and wife sub- mitted an application to set aside the decree pro confesso against them, and for leave to file an answer; and their application was supported by several affidavits. The chancellor overruled the application, but without preju- dice to a renewal of the application by Mrs. Cleveland alone; and afterwards overruled her application, founded on new affidavits, confirmed the master's report, and or- dered a sale of a part of her separate estate, unless the complainants' debt was paid by a giver, day. It is now assigned as error — 1st, that the bill ought to have been dismissed, for want of equity; 2d, that the de- crees pro confesso ought to have been set aside, and the defendants been allowed to file auswers; and, 3d, that the final decree is erroneous. Chilton & Yancey, and Wm. P. Chilton, Jr., for ap- pellants. OF ALABAMA. 483, Cleveland v. Pollard. Geo. D. Hoofer, with Goldtiiwaite, Rice & Semple, contra. STONE, J.— [June 6, 1861.]— The point made on the sufficieuc}^ of the service on Air. Cleveland, must, we think, be overruled. We do not doubt that the true party was served with subpoena ; and hence we disregard that portion of the sheriff 's return, which affirms that "Charles T. Cleveland [was] not found." The variance is, at most, a misdescription of the initial letter of Mr. Cleveland's middle name. Under the principle ruled in Edmundsou v. The State, (17 Ala. ISO,) such misdescription is imma- terial. — See Lynes v. State, 5 Por. 236. The view we take of a question after considered, ren- ders it unnecessary that we should say much on the sub- ject of setting aside the decree pro confesso. The chan- cellor attained the conclusion, that the defendants had betrayed great want of diligence ; and we are of the same opinion. We have not been referred to any adjudged case, nor have we found any, which is precisely like the present. This is not the case of a sale of trust property by a trus- tee to himself, nor of a purchase of the trust estate by the trustee from the cestui que trust. If such were the facts of this case, the law applicable to it is well defined. See Thompson v. Lee, 31 Ala. 304-5, and authorities I ; Hill on Trustees, 157-8 ; 8 !q. Jur. §§ 321-2. The bill in this casi ct, charges that the account, for the recovery of which this suit is brought, is for arti- Bold to Mrs. Cleveland at her instance and reqi We ti t th< if the bill charged that Mrs. Cleve- land purcha* mi the complainant- by ex- ! - contract. The language of the bill is, "Your ora- tors also jointly furnisl I Mrs. Elizabeth E. Cleveland, by h . during the . and 18. r )7, with various articles suitable and pi to her condition in life, and advanced various sums of money to her, and for her benefit, in the same way. - ' But immediately in connection is found the averment, that ail SUPREME COURT __^ Cleveland v. Pollard. this was done "under the faith and credit of her separate estate." The plain import of this language - is, that the complainants, of whom one is the trustee of Mrs. Cleve- land, intended by the sale to create a charge on her trust estate. It is difficult, if not impossible, to distinguish, in principle, this transaction, from the ordinary case of a purchase of the trust estate by the trustee. " A. trustee is never permitted to partake cfthe bounty of the party for whom he acts, except under circumstances which would make the same valid, if it were a case of guardian- ship. A trustee can not purchase of his cestui que (rust, unless under like circumstances; or, to use the expressive language of an eminent judge, a trustee may purchase of his cestui que trust, provided there is a distinct and clear contract, ascertained to be such, after a jealous and scru- pulous examination of all the circumstances; and it is clear that the cestui que trust intended that the trustee should buy; and there is no fraud, no concealment, and no advantage taken by the trustee .of information ac- quired by him as trustee."— 1 Sto. Eq. Jur. §§ 321, 307; Fox v. Maekreth, 2 Bro. C. C. 400. In the case of Thompson v. Lee, (31 Ala. 304,) we stated, as the result of the authorities, many of which are there cited, that contracts of parties, between whom there exists some peculiar confidential or fiduciary relation, " are regarded, primafacie, as constructively fraudulent ; and the onus is cast on the party seeking to set them up, of proving the bona fides of the transaction, and of repelling the imputation of bad faith and oppression which the law casts on him." — See, also, Greenfield's estate, 14 Penn. State Rep. 504, et seq. ; Taylor v. Taylor, 7 How. U. S. 199; Hill on Trustees, 157, et seq. ; McKnight v. Wilson, 2 Jones' Eq. 491 ; Puzey v. Seneir, 9 Wis. 370. While we concede, that such a transaction as this may be upheld, if there be no bad faith or oppression on the part of the trustee; still, under the principles above de- clared, the onus rests on the trustee, who seeks to enforce such a contract, of repelling the imputation of bad faith and oppression. Applying these principles to this case, OF ALABAMA. 485. Owsley v. Montgomery & West Point Railroad Company. the bill must be pronounced defective. True, it liters that the articles were supplied to Mrs. Cleveland by her express desire ; but it is not stated that the articles thus furnished were reasonably worth the sum charged ; nor, when bought, for the use of Mrs. Cleveland, does it in all cases appear that no profit or enhanced price was charged against her. All the averments of the bill may be true, and }-et the charges for the various items be unreasona- ble. The onus being on the complainauts, they have not brought themselves within the rule. The decree of the chancellor is reversed, and the cause remanded. OWSLEY vs. MONTGOMERY t WEST POINT RAILROAD COMPANY. [action FOK FOK malicioos PROSECUTION, AND FALSE imprisonment.] 1. W/,al actions lie against corporation. — An action of trespass for false imprisonment lies against a corporation, but an acti i case for a malicious prosecution does not. 2. ]>iti • • ■•mitts in case and in trespass. — A count which that the defendants, maliciously and without probable < out a warrant, commonly called a peace-warrant, against the plain- tiff," is in case for a malicious prosecution ; an" ml which avers that the defendants, ' r< ckli -ly ami without probable i through theii agent and servant, eausod and procured a ]>• warrant to 1." bu< <1 out," Sec, "on which .-aid warrant plaintiff* was arrested, and brought before the said justice of the peace, who, on hearing tie' evidence advanced by the defendants, d plaintiff from the arrest un ler said warrant ;" buta count whioh ra that th^ d< -]>', and with- out probabli .hi-. 1! ed the plaintiff to h an, Fir&l Baptist Church v. Schenectady Co., o Barbour, 7'J; Mel>.>ugalv. Bellamy, 18 Geo. HI ; Commonwealths Proprietors N. B. I*. ridge, 2 Gray, 3 to ; 12 Barb. 196 ; Smoot v. Mayor, 488 SUPREME COURT Owsley v. Montgomery & West Point Railroad Company, 24 Ala. 112. And upon this same reasoning, a corpora* tion may be sued in trespass for false imprisonment. In like manner, when the action of a corporation be- comes injurious to the public at large, the public may have its remedy by indictment. But it seems to be the law, that, inasmuch as a malicious motive and criminal intent cannot be attributed to a corporation, in its corpo- rate capacity, it is not indictable for those crimes, of which malice, or some specific criminal intent, is an essen* tial ingredient. Thus, in Reginav. Great Northern Co., (9 Ad. &' Ell. N.' S. 315,) Lord Denman used this lan- guage: "Some dicta occur in old cases— 'a corporation cannot be guilty of treason or felony.' It might beadded, * of perjury, or offenses against the person.' The court of common pleas lately held, that a corporation might be sued in trespass, (Mauud v. Monmouthshire Canal Co., 4 M. & Gr. 452 ;) but nobody has sought to fix them with acts of immorality. These plainly derive their character from the corrupted mind of the person committing them, and are violations of the social duties that belong to men and subjects. A corporation, which, as such, has no such duties, cannot be guilty in these cases; but they may be guilty as a body corporate, of commanding acts to be done to the nuisance of the community at large." So, in Commonwealth v. Proprietors of New Bedford Bridge, (2 Gray, 815,) it was said : "Corporations can- not be indicted for offenses which derive their criminality from evil intention, or which consist in a violation of those social duties which belong to men and subjects."— Sec, also, 1 Leading Cr. Cases, p.' 141. The distinction seems to be between acts injurious in their effects, and for which the actor is liable, without regard to the motive which prompted them, and con- duct the character of which depends upon the motive, and which, apart from such motive, cannot be made the ground of a legal responsibility. If this distinction is well taken, it would follow, that since a corporation, as such, is incapable of malice, it is not liable to be sued for a malicious prosecution. — See Childs v. Bank, 17 Mis* OF ALABAMA. 489 Boadurant v- Sibley'a Iloirs. souri, 213; Stevens v. Midland Counties Co., 26 Ettg. L. ftEq. 410; McClellan v. Cumberland Bank, 24 Maine, 566; State v. Great Works M. Co., 20 Maine, 41. And such appears to us to be the better opinion, although we are aware that there are authorities which seem to sustain the idea, that an action for a malicious prosecution may be maintained against a corporation. — See GoodenftV v. East Haddam Bank, 22 Conn. 530 ; P. W. & P». R. R. Co. v. Quigley, 21 How. (IT. S.); Natioual Exchange Co. v. Drew, 32 Eng. L. & Eq. 1. [2-3.] It results from what, we have said, that the de- murrers to the 1st and 2d counts were properly sustained. But the 3d count is not a count in case for malicious prosecution, but a count in trespass for false imprison- ment, , (Shcppard v. Furniss, 19 Ala. 760; Ragsdale v. Bowles, 16 Ala. 62; Code, p. 554,) which, as we have seen, will lie against a corporation. No sufficient objection to this count is stated in the demurrer to it; nor was the misjoinder <>f counts assigned as one of the grounds of the demurrer to the entire complaint. The demurrer to the 3d count, and the demurrer to the entire complaint, should, therefore, have been overruled. Judgment reversed, and cause remanded. BONDURANT vs. SIBLEY'S HEIRS. [BILL IN Kv'IITY HV .11 DGXEITT DBSfM fTlR KEDEJIin MM.] 1. Whn arc parties defendant- — A person Against whom proa prayed, and who the 1'ill prnvs may be roqufctd to answer, is thereby made a [art-. ml. notwithstanding tli" want of appropriate allocations showing his interest in the litigation. 2. Amended hill irer of irregularity. — An amended bill, or matter of amendment brought forward in a bill of revivor, will bo stricken out on motion, if filed without leare 32 400 SUPREME COURT Bondurant v. Sibley's Heirs. previously obtained ; but, if no such motion is made, and answers are afterwards filed, treating the amendment as properly made, and it is recognized and acquiesced in, both by the parties and by the chancellor, the appellate court will consider the irregularity as waived, 3. Appointment of guardian ad I i ton for infant defendant. — The ap- pointment of a guardian ad litem for an infant, who is not at the time a party to the suit, is a nullity ; but, after the infant has been made a^iarty, the appointment of a guardian ad litem for him, even if made without any previous service of process, and otherwise ir- regular, is voidable merely, and not absolutely void; yet such irreg- ular appointment, although it will work a reversal on error of a de- cree against the infant, and may be vacated by the chancellor on motion, is vulid until reversedor set aside; and the subsequent ap- pointment of another guardian, while the former is unrevoked, is void. 4. Service of process on infant. — Personal- service of process on an in- fant, who is under fourteen years of age, is irregular. 5. Dismissal of bill for want of prosecution. — Where the complainant refuses, after his bill has been pending for several years, to pursue the course suggested by the chancellor, and which is the only propi r course, to bring in a party, who, though made a defendant; has not been brought before the court, the bill may bo dismissed, on motion, for want of prosecution ; and the complainant cannot ex- cuse his negligence in failing to proceed against the absent defend- ant, on the ground that he was not a necessary ftarty to the bill. Where the complainants are infants, suing by their next fiiend t the more usual, and, ordinarily, the proper practice, is to remove the next friend; vet, if the chancellor, in the exercise of his dis- cretion, oismisses the bill, the appellate court will presume that he did so because the interests of the infants did not require a fur- ther prosecution of the suit. f). Who are necessary parlies to bill for redemption. — The heirs-at-law of the deceased purchaser of lands sold under execution, he having died intestate, are necessary parties to a bill for redemption fded by the judgment debtor. Appeal from the Chancery Court of Perry. Heard before the lion. James B. Clark. The original bill in this case was filed, on the 20th March, 1848, by Joseph II. Bondurant, against the per- sonal representative and heirs-at-law of Charles Sibley, deceased; and sought to redeem certain lands, which had been sold under execution against said Bondurant, and OF ALABAMA. 4P1 Bondurant v. Sibley's Heirs. which were purchased at the sale by said Sibley. Mary Perkins, the wife of A. N. Perkins, was alleged to be one of the children and heirs-at-law of said Sibley; and the^ bill prayed that she and her husband might be made de- fendants, that subpa-nas mfght issue to them, and that they might be required to answer. On the 22d May, 1848, after the administrator had answered the hill, and after said A. N". Perkins had also filed an answer, in which he alleged that his wife, Mary Perkins, died on or about the 20th February, 1348, the register granted leave to the complainant to amend his bill, by inserting at the proper place the following words : "That on the day of February, 1848, the said Mary Perkins died, leaving au infant, without a name, about four months old, surviving." On the 21st June, 1848, on motion of the complainant, the chancellor made an order, appointing the master "to act as the guardian ad litem for the infant defendant men- tioned in the amended bill." At the June term, 1850, the complainant's death was suggested, and' leave was granted to revivethe suit i n the names of his heirs-at-law ; and abill of revivor was accordingly tiled, on the 14th February, 1851, in the names of his children as heirs-at-law, all of them being infants, and suing by their next friend. The bill of revivor recited the leave to amend the original bill, and alleged, "that the said bill was accordingly amended as therein shown ; that by the said amendment of said bill it was shown that Mary Perkins died on the day of February, 1848, leaving an infant, only four months old, surviving her, and that said infant is named Charles S. Perkins." The bill of revivor stated, also, that no guar- dian ad litem had been appointed for said infant, although he was made a party to the bill by the amendment; claimed tin- right to revive the suit against the defendants, naming Charles S. Perkins as one of them ; and prayed that he might be required to answer both the original bill and the bill of revivor, and that subpcBoaa might issue to him and the other defendants. But, notwithstanding the leave to amend the original bill, and the recitals of the bill of revivorthat the bill had beeu accordingly amended, SUPREME COUKT Bond n rant v cil>ley s Ifeir.y. the amendment wa3 pot in fact made, either by interline- ation, or on a separate sheet of paper. A subpoena was issued on the bill of revivor, directed to Charles S. Perkins with the other defendants, and vraa returned by the sheriff, on the 20th March, 1851, "exe- cuted;" and answers were afterwards filed by the several adult defendants. At the June term, 1851, on motion of complainant?' solicitor, the chancellor appointed A. JfT. Perkins as the guardian ad litem of Charles S. Perkins; the order reciting that the infant "is under the age of fourteen years, and'that service as to him has been per- fected by the service of subpoena on him;" and an answer was filed for the infant, by said A. N. Perkins,. on the next clay. At the November term, 1852, the cause was argued before the chancellor, on the demurrers incorporated in the answers of the several defendants; and, in his opinion overruling the demurrers, the chancellor noticed the fact that the original bill did not seem to .have been amended, in •accordance with the leave granted for that purpose, and suggested that it might, be "well to consider whether the hill has been ever so amended as to bring in the infant de- fendant." At the November term, 1855, the cause was submitted to the chancellor, on pleadings and proof, for final decree; and it was insisted before him, by the coun- sel for defendants, that Charles S. Perkins had not been brought before the court. The chancellor overruled that point, and held that the infant was property represented by his father, A. N. Perkins; but he dismissed the bill, on the ground that it did not contain a sufficient allega- tion of the delivery of possession without suit. At the January term, 1857, on appeal to this court, the chancel- lor's decree was reversed, and the cause remanded; this court declining to decide on the merits of the case. — See 29 Ala. 570. On the 16th June, 1857, a subpoena was issued to Charles S. Perkins, which was returned by the sheriff, "executed by handing copy of the within to A. N. Perkins, his ather, for the said Charles S. Perkins." At rules before he register, on the 16th .November, 1857, on motion of OF ALABAMA, 493 Bondiirant v. Sibley's Heirs. the complainants, J. II. Harrieon was appointed guardian ad litem for said Charles S. Perkins: and, on the - day, said Harrison filed his consent in writing to net as sue!) guardian, and (iled an answer for 1 he infant. At the nber term, 1857, the complainants asked have to amend the original bill, in accordant© with the amend- ment allowed by the register, as above stated, in May, ; and also to amend that amendment, by strikingorft the words '-without a name," and inserting in lieu thereof the words "named Charles S. Perkins;" and, at the same tim s, the adult defendants moved to dismiss the bill for want of prosecution. The chancellor overruled the de- motion, and granted the complainants' motion; and the original bill was accordingly amended by infer- lineation. At the same time, th^ chancellor made an or- der, , . vacating and setting aside the last sub- a which had been issued to Charles 8. Perkins, together with the appointment of Harrison as his guar- dian ad litem, and the answer filed by said Harrison ftS such guardian. At the December term, 18' ause was again submitted to the chancellor, on pi and proof, for final decree; and the defendants again that I S. Perkins was not pro.pcrly before the court, and moved to dismiss the lull for want of :ion. The chancellor refused to dismiss the bill, but held that the infant had not been brought before the court in a proper manner, inasmuch as the Be r Vice of the first snb- i <:i him, and the appointment of A. N. Peiki his guardian adliiem, were both irregular and e. i and he. therefore placed I e back on tin' docket, in order that proper proceedin, ht be had to vacate that appointment, and to b< I ment ov- poD it. At the dune term, . motion (d th.' compl . iitor, th- ■ the '.litmeni of A. X. Perkins ;i s the guardian c Charles 8. Perkins, and all th.' had paplaiuanta' next friend; hut, on the next day, on motion oi the ^ame soli- citor, th' o, and the form* i 494 SUPREME COURT ____^ Bondurant v. Sibfoy's Heirs. _ . ______________ ted by it were reinstated; the last order of the court reci- ting, that said solicitor moved to set aside the order of the previous day "because the complainants' next friend was dissatisfied with him for having made the motion to vacate said appointment," &c. At the same time, the complain- ants' solicitor moved to set aside the order vacating the appointment of Harrison as the guardian ad likm of Charles S. Perkins, and 1 lie adult defendants again moved to dismiss the bill for want of prosecution. The chancel- lor refused to.grantthe order asked by the complainants, and dismissed the bill, on defendants' motion, for want of prosecution. The decretal order made at the December term, 1857, setting aside the second subpoena to Charles S. Perkins, the appointment of Harrison as his guardian ad Idem, and the answer filed by said Harrison ; the decretal order set- ting aside the appointment of A. N. Perkins as guardian ad Idem ; the refusal to set aside the order vacating the appointment of Harrison, and the final decree dismissing the bill, are now aligned as error. Goldthwaite, Rice & Se.mple, for the appellants. 1. Charles S. Perkins was properly brought befo-e the court, and Harrison was regularly appointed his guardian ad litem; and the chancellor had no power, at a subsequent term, to vacate his appointment, and suppress the answer filed by him. — Anslev v. ttobinson, 16 Ala. 793; iStatc Bank v. Johnson, 9 Ala. 307 ; Paige, 371; 2 A. K. Mar. 342, 168; 14 Peters, 156; 1 Dan. Ch. Pr. 218. 2. As the complainants were infants, they ought not to be held responsible for the negligence or misconduct of their next friend. Instead of dismissing the bill, the chancellor ought to have removed the next friend, and appointed another person in his stead; or, at least, to have referred it to the register to inquire what course the interests of the infants required. — Smallwood v. Putter, 3Eng. L. k Eq. 210; Naklor v. Hawkins, 2 Myl. & K. 243." 3/ Sibley 's heirs were not necessary parties to the suit, OF ALABAMA. 495 Bondnrant v. Sibley's Heirs. their interests being fully represented by the administra- tor. — Castleberry v. Pierce, 5 Stew. & P. 150; 5 Dana, 285. 4. Even if the heirs were necessary parties, and there was a failure to perfect service on one of them, whose in- terest is defined and separable, the complainants were entitled to a decree against the other defendants, to the extent of their interest in the lands. I. W. Garrott, contra. — The complaiuants' bill was pending in the court for twelve years, and yet Charles 8. Perkins was never brought before the court. This omis- sion was repeatedly pointed out by the defendants, and made the ground of several motions to dismiss; and the complainants' attention was directed to it by sugges- tions from the chancellor at different times. Yet, instead of taking the proper steps to remedy this defect, the com- plainants' next friend obstinately refused to act on the Suggestion of the chancellor. The 28th rule of chancery practice, requiring that a bill shall be dismissed, if the complainant does not take proper steps to bring in the defendant before the second term after the tiling of the bill, is peremptory ; but, if it be only matter of discretion with the chancellor, his decision in not only amply justi- fied by the facts, but cannot be revised by this court on appeal. A. J. WALKER, C. .1.— [July 11, 18G1.]— [1-2.J The infant defendant mentioned in^the amended bill, was not a party to the suit at the time the master was appointed I as guardian ad litem for him. The bill of revivor, however, made Charles 8. Perkins a party defendant. The want of appropriate allegations, showing his inti in the litigation. m him from becoming a party by virtue of the prayer that he should answer, and the prayer for pi .nn-t him. — Walker v. Bank of Mobile, 6 Ala. 452; ! Bank of Darien, 2 Is Tims far, the bill of revivor was a bill of amend- ment; and the amendment thus brought forward, having 496 SUPREME COURT Bondurant v. Siblfty'a Heirs. been made without leave previously obtained, would have been strickefl out on motion. — 1 Dan. Ch. Pr. 468. But no such motion was made. Answers were filed by the defendants, treating the amendment as properly made; and there was afterwards a long acquiescence in, and re- cognition of the amendment, both by the parties, and by the court. Under these circumstance's, we do not think that the amending feature of the bill of revivor, as it is denominated, ought to be regarded as not belonging to the record, notwithstanding it may not have .been made in pursuance of a previous order. — Farmers' Loan £ Trust Co. v. lieid, 3 Edw. Ch. 414. [3-4.] As the infant defendant mentioned in the amended bill was not a party to the suit at the time the master was appointed to act as guardian ad litem for him, that appointment was a- nullity; and it seems to have been so treated by the chancellor. But, as Charles 8. Perkins was made a party by the bill of revivor, the chan- cellor then had jurisdiction to appoint a guardian ad litem for bim ; and the appointment, even if made without any previous service, and otherwise irregular, would not be void, but voidable merely. — Preston v. Dunn, 25 Ala, 507. The appointment of A. N. Perkins, at the June term, 1851, as the guardian ad litem of Charles S. Perkins, no matter how irregular it may have been, was not void; because the infant was a parly to the suit when it was made. It was, however, irregular; and this court would, on account of the irregularity, have reversed a decree against the infant. The irregularity consisted alone in the fact, which is shown both by the return on the sub- i and by the order making the appointment, that the subpoena was served on the infant personally, who was at that time only three or four years of age. — 20th Jiule of Chancery Practice, 24 Ala. V; Clark v. Gilmer, 28 Ala. 265; Sanders v. Codley, 23 Ala. 473: llodges v. Wise, I 6 Ala. 606 ; Walker v. Bank of Mobile, 6 Ala. 452. The chancellor had, unquestionably, the power to vacate this irregular interlocutory order; and it would have been his plain duty to Jo so, on the motion of the complainants. — OF ALABAMA. 497 Bondurant v. Sibley's HeirS. 3 Dan. Ch. Pr. 1616, 1807; Walker v. Bank of Mobile, 6 Ala. 452. The register's appointment of Harrison, as the guar- dian ad litem of Charles S. Perkins, wa9 clearly imp roper | because there was then an existing appointment, which was valid until set aside. Harrison's appointment was strictly analogous to the appointment of a second admin- istrator without revoking the appointment of the first. As the second appointment of an administrator would be void, so also is ihe second appointment of a guardian ad litem in this case. If it were not so, there would be two separate and distinct guardianships at the same time. As Harrison's appointment was void, the order of the chan- cellor setting it aside was correct. [5-6.] The order netting aside the appointment of A. N. Perkins, as the guardiau ad litem of Charles S. Perkins? was vacated on motion of the complainants' solicitor; ;md the solicitor seems from the record to have made the mo- tion, because his client was dissatisfied with him for ob- taining the vacation of the appointment. The appellants cannot complain of the action of the chancellor in thus ing aside the order vacating the appointment of Per- kins, although it may have been improper, because it was made at their instance. It would have been improper for the chancellor to grant the complainants' motion | aside the order vacating the appointment of Harrison. The order setting aside the appointment of Perkins, which thecomplainants would not permit to remain when it had been made, and would not ask Wi.cn it was ted by the chancellor, was the only possible means by which the infant could be represented in court it lar manner. The complainants re! t only ; it was necessary to prepare the cause fora hearing . to permit I : iaill when it had made. There was, thei tsal on their potto it in a regularand legal manner: and we think the chancellor had authority to dismi of prosecution, as he did, on the 'motion. In- stead ol disi the bill, he undoubtedly might have 408 SUPREME COURT M'('<.]lum v. Prewitt. removed the next friend of the infant complainants; and that would have been the more usual, and, ordinarily, the proper course. It is, however, a matter as to which the chancellor fnust, we think, be allowed some latitude of discretion. We cannot presume that he acted in disre- gard of the interests of the infant complainants. On the contrary, we think it fair to presume that he adopted the course that he did, only upon a reasonable conviction that the interests of the infants did not require a further pros- ecution of the suit. It is argued, however, for the appel- lants, that Sibley's heirs were not necessary parties to the suit. But, if it were conceded that they were only proper, and not necessary parties; it would be the duty of the complainants nevertheless, having made them parties to the bill, either to amend the bill, and omit them from it, or to proceed with proper diligence to bring them before the court. The heirs, however, were clearly indispensa- ble parties; for the object of the bill was to divest them of a legal title which had descended to them. — Batre v. Auze, ."> Ala. 173; Erwin v. Ferguson, 5 Ala. 158; Ken- nedy v. Kenned}-, 2 Ala. 573; Jennings v. Jenkius, 9 Ala. 286- 1 Dan. Ch. PI. 211, 256. The decree of the chancellor is affirmed. McCOLLUM w. PREWITT. |BILL IN EQUITY FOE iN.n NOTION OF JUDGMENT AT LAW.] 1. Equitable relief against judgment at laio,on ground of discover;/. — Af- ter the rendition of a judgment at law against a party, he cannot maintain a bill in equity for a discovery as to matters of purely leg:.: nee, without showing a sufficient excuse for his failure to take the proper steps to obtain' the discovery, either by bill "in equity, orbv interrogatories under the statute, while the action at law was pending. 2. Same, on ground of usury — Usury in the note on which a judgment OF ALABAMA. 499 McColIum v. Prewitt. at law is founded, constitutes np ground for equitable reliefagainst the judgment, unless a sufficient excuse is shown for the failure to make the defense at law. 3. Same, on account of surprise, accident, mistake, or fraud. — A party who seeks equitable relief against a judgment at law, on grounds which Were available as a defense at law; and who simply shows that he- had a valid defense to the action, and a sufficient excuse for his failure to be present at the trial term, at which the judgment was rendered ; but fails to show that he had employed counsel, or i um- moiied witness^-, or taken any other steps to defend the action, although it was pending more than six months before the . was rendered,- does not relieve himself from the imputation of negligence, anil, consequently, is nut entitled to relief. 4. Same, 071 account of irregular affiriHa rlificate. — The affirm- ance of a judgment by the supreme court, on certificate, at the term next preceding that to which the appeal is taken, may b< rected on motion, and, consequently, furnishes no ground for equitable relief against the judgment. Appeal from the Chancery Court of Fayette. Heard before the Hon. James 13. Clakk. The bill in this case was tiled, on the 30th September,. 9, by James K. McColIum, against John W. Prewitt; and sought to enjoin a judgment at law, which said Prew- itt had recovered against said McColIum. and others. The action at law, in which said judgment was rendered, was Commenced on the 20th September, 1858, and was founded on a promissory note for $10o0, executed by said McCol- Ium and others, dated the 8th July, 185G, and payable six months afterdate; and the judgment was rendered, on the verdict of a jury, on the l-'th April, 185U. The consideration of said note, according to the allegations of the billj ed by said Prewitt to said McCol- Ium, and an t, for about $100, which M lum's son had contracted with .-aid Prewitl : the residue consisting of usurio >ti the money loaned. F-i addition to the ; usury, the complainant alb had delivered to the defendant, I tion of -..;•; .1 idgm bales of cotton, "upon tin -t and confidence that he (saiil defendant) would take eoutrol of .( . dis- 500 SUPREME COl McCoHum v. Prewitt; pose of the same, and appl} fche proceeds to the di of said debt"; that the defendant sold the cotton, but failed to give the complainant credit on the note for the amount of trie proceeds of sale, and refused to inform him of the amount realized by the sale; and that the com- plainant knew no person, the defendant, by whom he could prove the trust on which the defendant received the cotton, and the price, for which it was sold. In ex- cuse of his failure to appear and defend the action at law, the complainant alleged, that his residence was twelve miles from the court-house : that his wife was dan- gerously ill during the entire term of thecourt at which the judgment was rendered, and required his constant attend- ance; that he sent an agent to the court, to make his ex- cuse ibr non-attendance, and to ask a continuance of the cause; that said agent informed him, on. his return, that the. cause had been passed by the court, in order that he might have an opportunity to submii ;.u affidavit, stating the cause .of his absence and the grounds "of his defense;, and that the cause would be continued, or at ' t. so much of it as he proposed to litigate, on the re. ion of his affidavit; that he accordingly made an ai before a justice of the peace, stating therein the; inds of his defense and the cause of his personal sil . and for- warded it to the court; and that he. did no, learn, until after the adjournment of the court, that his application for a continuance had been disregarded, and a judgment render". 1 against him for the full amount of the note and interest thereon* The complainant further alleged, that, on or about the 1st July, 1859, he sued out an appeal from judgment, returnable to the next January term of this court, and gave bond, with sureties, to supersede said judgment; and that on or about the 14th July, 1859, the defendant procured an affirmance of said judgment in this court, on certificate, "by improperly representing, through his attorney, that said appeal was taken to the June term, '!, of said court, and suppressing the fact that it w;.s taken to the January term, 1800." The prayer of the bill was for an injunction of the judgment, a discovery as to 4 OF ALABAMA.. 501 IVfcCollum v. Prewrtt. the proceeds of the cotton, an account, and general relief. The chancellor dismissed the bill, on motion, for want ol equity; and his decree is now assigned as ettor. . W. P. Chiltox, with Thos. M. Peters, for appellant. E. W. Peck, with E. A. PoWeli, contra. STOXH. J.— [July 15, 1S01.]— The first point relied on in support of the equity of the present bill is, that it can be sustained as a bill for discovery. It has long been settled in this State, that a party who is sued at law, and suft'ersjudgr inent to go against him, can not afterwards maintain a hill for discovery of matters of purely legal defease to the action at law, unless he shows sufficient excuse for not defending at law, and brings himsell within the rule which, in cer- tain eases, allows a party, alter trial at law, to have a re- trial in equity. — See Powell v. Stewart, 17 Ala. 71Q; 1 Keav. Dig. 2 96. Under this principle, bills for dis- covery, after judgment at law, arc placed in the same cate- gory with other hills for relief against judgments at law, on account of alleged fraud, or the site party. [2.] The second ground relied on is, that there is usu- rious interest charged in th< vered by the judgment. This around stands on the same footing as the other, and cornea too late, unless a sufficient ei be rendered for not defending at law. — See Mallory v. Matlock, 10 Ala. 5! 5; dote- v . Kirksey, ih. &T9. {'■'•. \ must, then, he disposed of without any reference to the points above noted, further than they tend to show that complainant had a good and valid de- fense to the action R1 law. It was early settled in this court, and has never been departed from, that equity will not interfere after a judgmental law, unless the party can impeach the justice of the judgment by fa of which he could have availed himself, and was prevented from ' y fraud, accident, or the Bite party, n \rL — 702 SUPREME COURT Bovkin & McRae v. D.ddonde Shannon v. Reese, adra'r of King, both at the present term. In the present caso. Mr. McCollum had been sued some seveu months before the judgment was rendered. He probably shoVs a sufficient excuse for not being pres- ent at the term. of the court when judgment was given against him. But for his omission to make preparation daring all the time intervening between the commence- ment of the suit and the trial, he offers no excuse. lie filed no bill, and served no interrogatories for discovery, in aid of his defense at law; and if he employed counsel to defend him, or summoned witnesses to testify in his behalf, he has no': informed us of it. This does not re- lieve him from the imputation of negligence. — Haughey v. Strang. 2 Por. 177 ; Pharr v. Reynolds, 3 Ala. 521 ; Stin- nett v. Branch Bank, 9 Ah. 120; Foster v. Bank, 17 Ala. 072: Hair v. Lowe, 10 Ala. 224; Perrine v. Carlisle, lb. 686; Watte v. Gayle, 20 Ala. 817; Talliaferro v. Branch Bank, 2.°, Ala. 755; Allman v. Owen, 01 Ala. 1G7 ; Moore v. Lesueur, :):) Ala. 243. [4.] The irregularity in the affirmance of the judgment by this court, could have been corrected on motion, and tarnished no ground for equitable interposition. — Mc- Glure v. Colclough,-6 A In. 492. Decree of the chancellor affirmed. BOYXIN & McRAE vs. BOIILONDE & CO. | ACTION FOK I'RTCE OF GOODS SOLD AND DELIVERED. J }■ Statute of frauds as to promise to answer for debt, t&c, of ano whether promise is original or collateral. — In determining whether a parol promise to pay for goods delivered to a third person is within the statute of frauds or not, the decisive question is, to whom was the credit given : if the credit was given altogether to the defend- ant, his promise is direct and original, and not within the statute; OF ALABAMA. 503 Boykin it McRae v. Dbhlonde & Ce. 'secus, if any credit at all was given to the person to whom the goods were delivered. 2. Same. — It is the province of the jury, in such case, to determine to whom the credit was given ; and it is their duty, in deciding that question, to take into consideration the extent of the under- taking, the expressions used, the situation of the parties, and all the other circumstances of the case. The fact that the goods were charged, on the plaintiff's books, to the person to whom they were delivered, if unexplained by other circumstances, would be very strong, if not conclusive evidence, that the defendant's promise was collateral ; and, on the other band, the fact that the plaintiff and defendant have both acted as if the credit was given solely to the defendant, if unexplained by other evidence, would be a cir- cumstance strongly tending to show that his promise was direct and original; yet neither of these facts is conclusive, but they are susceptible of explanation, and their weight as evidence must de- pend upon the circumstances of the particular case. Appeal from the City Court of Mobile. Tried before the Hon. Alex. McKltfSTRY. This action was brought by F. Dohlonde k Co., against the appellants, to recover the sum of $1687 60, the price of certain goods, wares and merchandize sold and deliv- ered. The complaint contained two counts; the first al- leging the sale and delivery of the goods to* the defend- ants themselves, on the 31st March, 1860 ; Snd the second alleging the sale and delivery to R. S. & T. D. Weir, at the special instance and request of the defendants, on and before the 31st March, 1860. The defendants pleaded the general issue, and the statute of frauds. It appeared on the trial, that the plaintiffs were grocers in Mobile, where the defendants also were engaged in business; and that R. S. . Weir, to whom the goods were furnished, were, merchants at Enterprise, Mississippi. The transac- tions between the plaintiffs and the Weirs commenced in April, 1858, when the latter wrote a letter to the plain- tiffs, requesting them to send goods to the writers at En- terprise, and referring them to the defendants for pay- ment. The plaintiffs, through their cleric, exhibited this letter to the defendants, and inquired whether they would pay for goods forwarded to the Weirs; to which the de- SUPREME COUftT Boykin & VfcKae v. Dohlondc X I ! ied, as plaintiffs' clerk testified, that they would pay for the goods if the accounts were presented rnonilily. The plaintiffs forwarded the goods to the Weirs, and forwarded other goods at divers times, up to the l>t March, 1860, amounting in the aggregate to over $34,000; charging them on their books to the Weirs, and r monthly accounts to the defendants. With the exception of three payments, made by the Weir-', at different times, directly to the plaintiffs, and amounting in the aggregate to $3411, the accounts were paid monthly by the defendants, up to the 1st March, 1860, when a bal- ance of $15S7 60 was due to the plaintiffs. The Weira ime insolveut about the 1st Marcli, I860, ami trans- ferred all their assets to the defendants. The plaintiffs presented their account, on which the suit was founded, and which was then made out against the Weirs, to the defendants for payment, about the 1st April, 1860 ; and the defendants then refused to pay it, and denied their liability for it. The defendants read in evidence seven letters, written to them by the Weirs at different times, between the 29th April, 1858, and the 30th September; 1859; requesting them to pay the writers' accounts with the plaintiffs. "The court charged the jury, (among other things,) that they must ascertain whether the goods were furnished on the credit of the Weirs, or of the defendants; that if they Were furnished on the credit o\' the Weirs, and. the de- fendants were guarantors or srlreties, then the plaintiffii could not recover; that all promises? for the debt, default, or mi-carriage of another, are void by the statute of frauds, unless in writing; that, as this promise was not in writing, it was void, if it came within the statute; and that this is t\id law as to any assurances or representa- tions concerning the dealings of any other persons. If, however, the goods were famished on the credit of fie: defendants , and would not have been forwarded unless the defendants had agreed to pay all the bills that were tendered monthly, it does not come within the* statute of frauds; and if the jury believe that the plaintiffs for- OF ALABAMA. 505 Boj kin & McRae v. Dohlohdi warded the goods to the Weirs, time and again, from April, 1S58, to April, 1860, .and the defendants regularly Acknowledged their liability by the payments of the ac- counts when rendered, and did not notify the plaintifft that they should not continue to do so, until after the insol ! the W td their insolvency occurred after the March bill of goods had been forwarded, — such acts of t!i" defendants were circumstances to look . m s; what they con the contract to b The defendants excepted to th" :, and r< ral other charges, of which the court refused th lowi; "4. To make ; i liable for goods delivered to ano;' re must be an original undertaking l>y him, so that the credit w. solely to him, or there must be a c ml . a< t in writing. goods were charged on the plaintiffs' hooks to the Weirs, being made by the plaintiffs themselv the tiir." of the sab . isive plaintiffs' claim a nd; . as the original p ir 1; the jury believe, fi evidence, that the '3 were liable at all tothe.pl; fur- hen the lia- ble, ran find for "7. i '' finally liable ; and i not Tin and tl the 1. J.— [Ju i \'T ■ for the d< dscarriagc of another, ^\■ niltiea have arisen, and many perplexing ii taken. But one unci.. of dec; in this try, thai when th? promise of the <1< feiidant pay for articles to be furnished to a third p n, if ■ rangacti third person is r ble to the person who suppli les, the promise of the defendanl ' nd, ii' oral, not'binding. '.e principle decided in the 1 myrv. Darpall, 2 Lord Raymd. ,, 1 Hulk. leration that the plain tift' would his horse to one English, the defendant promised that ;ld return him safe. Holt, C. J., Gould and >f opinion, that the casa was not williin the statute, because thought that Was not liable upon the contract. Mr. Ju ys diflered. The chief-justice and his associates in opinion that if i r was given to English, : rould be within th ite ; but I that do en dit> had been given to him. The er for further eonsideration ; and t 1 jus- w ith the judges of the court < as finally determined, that, as English might on the bailment, in detinue, on the original deli' e made by tl lanl was in the reason and words of the statute. The s; laid down in Matson v. Wharam, (2 ' Buljer, J., who said, U T1 ral line now . that, if the person for whose iods are y a third :i to pay thai debt musl be in writing; other, a yoid by I hi oi frauds, -. : I !ar. II, c. 3." e rule thus declared is adopted In ut Wil- liams, as a correct construe! ■, in his note ETiriJa v. Stanton, 1 Wm. ►Saunders, 211 (a), and has tied by a great weight of authority in in G reat Britain. Wb ; inst one, charging him with the value OF ALABAMA. 607 , Boykin 1 Co. $ goods delivered to another, and on hia promise to pay; and it, is sot up in defense, that the pron i to pay . tlic debt of another, and was not in'writi isive ion is, to whom was the credit given. If the credit /ivcn solely to the defendant — that is, th< reallysold to him, thongh delivered to another — the statute is thou out of the ease. But, if«thc whole credit was not given to the def ndaUt — that is to say, if any credit at all fiven to the par' goods — the promise of the defendanl is collateral, am! within the statute. For, in tli • the plaintiff would haw- a ren iust th"e party receiving tl ; and all the cases show that it does not upon which of the two parties the plaintiff principally depends for payment, so long as the person i'ov wl are' furnish cJd is at all lia- ble to him. — Authorities supra : Anderson v. Hay man, III. Black. 120; Barber V. Pox, 1 Starte B. 270; < v. Day, 17 Johns. 114; K land, 13 Wend. 114, 121 : Brady v. S : I S. C. K. 511; Cahill v. Bigelow, IS Pick. s v. Milton, iperton v. f,great importance, in determining to whom credit was given. Being made, by the seller, it is, of <•■ mi; li greater weight when against him, than when it his claim. If, on production of the plaintiff's . it appears that the defendant was not originally ■debited there, but that the goods were charged against the person receiving them, this fact, if unexplained by oth< . would be very strong, if not conclu- sive evidence, that credit was given to the person v ing the goods.— Storr v. Scott, G C. & P. 241 ; llazcn V. Bearden, 4 Sneed, 48; Belaud v. Creyon, 1 McCord, 100; Matthews v. Milton, 4 Yerger, 576; Flanders v. On 1 puer, 20G; 1 Parsons Contr. 499 ; Browne's Slat, Fr. § 198 ; 1 Smith's Lead. Ca. (m. p.) 134, note. I3ut, as the question, to whom credit was given, must depend upon the intention of the parties, the fact that the goods are OF ALABAMA. 509 Boykin v. (kfoRae v. Dohlcmch & Co. charged to the person receiving them, is not conclusive, but may be explained, and made consistent with the as- sumption of the defendant's primary liability. Other circumstances in the I y show (as was done in San- ford v. Howa , and Ilazen v. Bearden. pra,) that the account was 80 kept lor convenience, and to avoid confusion and misunderstanding; and that in point of fact the credit was given to the d< fendant, and considered liable for the goods. — See, also, (hit- ler v. Ilinton, 6 Rand, 509 : Loomis v. Smith, 17 Conn. Ho. On the other hand, if the defendant has been treated ,e person selling the goods, and has himself acted as if he were the sole party liable, that, if not explained by other evidence, would be a circumstance conducing to show that his promise was not collateral. But it fs ini- pecify any one let. or set of facts, on which the question, to whom the plaintiff dit, is to be determined; and the weight to which any particular fact may be entitled, must vary with the varying circumstan- ces with which it may he found connected. Consequently, o there is any conflict of evidence upon the Bub the weight to In- given to any particular circumstance should he left to the jury, who, in deciding the question, to whom the credit was given, should take into consider- ation "the extent of the undertaking, th< ions used, the situation of the parties, and all the circumstan- ces of th "—Elder v. Warfietd, 7 i Ila- zen v. Bearden, 4 Sneed, Stat. Frauds, § 199. jiii cut musl be i lore pointed out, and as what we have all id will proba- bly turn luct of the cause nother trial, we do not. deem it i mine I and n >r the to. Judgment use remand 510 SUPREME COURT n v. 3uck< IIERRiX vs. BUOKBLEW. tOM JUSTICI 1. (' :e.— Where several promi notes, each for a less Bum ihan fifty dollars, are execute! at one and tlie .same time, lor a single deht amounting their several sums, and fire made payable on the same da}-, such notes aire within the civil jurisdiction of a justice of the pea L from the Circuit Court of Randolph. ■ the Hon. Robert Dougherty. The agreed facta of tins case are these : On the 26th January, Stephen W. Herrin borrowed $1260 from F. W. Buekelew, and, to secure the repayment thereof, w twenty-eight promissory n< sach, till dated on said 26th January, 1858, and ble on the 25th December next after date; which notes, were also signed by J. M. 'Baker and James as sui for said Herrin, and co-makers with him. These notes being uupaid. at maturity, Buekelew insti- tuted separate suite Qti them against the makers, before a justice of thi • q\\ the suits being commenced on ■ day. The defendants pleaded in abatement to the jurisdiction of the justice; but a« demurrer was tained to their plea, and judgment rendered against them in each of the cases. The eases were removed by < into the circuit court, and were there consolidated. defendants again pleaded in abatement, and a de- murrer was again sustained to tin ir plea ; and this ruling of the court, to which they reserved an exception, is the only matter assigned as error. Heflin & Forney, i'ov appellants.— 1. The several notes were executed at one and the same time> for the same debt, and as parts of one and the same contract; ALABAMA. _ 51t Herrin v. Buckdew. find they ar< jtrtimeut. Glassed v. Chapman, 13- Ala. 50; Strong's Execfctors \\ Brewer, 17 Ala. 706; Elliott v. McClelland, 17 Ala. . ; Dumas v. !! 'arby, 24 [min v. Crane, L6 Ala. 57(i; Tripp Tiippe, 29 Ala, G37. The notes are only ili" evidence of th< 2. A single and entire cause of action cannot be split lip into several suite. — Oliver v. Holt, 11 Ala. 574; Oe iry, 3 Porter, 921 ; O'Neal v. Brown, 21 Ala. : Wittick "v. Trail n, 87 Ala. 562 ; i. Bpn, 81 Ala. 162; 15 I, 5&T. 3. At common law, aj oi the peace had no civil jurisdiction. — Betuer v. ' 11, J7 Ala. 830; Elli 40; 7 \\ ■. Under the CO tuition of this State, (art. V, §10,) his civil jurisdiction is limited I n which the amount in control rs. To allow the pi cich a de- irs in this case, to evade th | i, would enable them to do indirectly wbal I could not do directly, and 1 fraud on the on of the justice. Moreover, consent of the an not gij of a Bui ted by law. — Wyatt v. .1 7 ; \Vinn v. ile, 19 Ala. 171; Merrill v.Jo 34 ; Oak- k, 552. ( !. !>. [luDt: ra, cited Xibbs v. ft) 1\ 198 ; V, iusti ., v. A.J. • d.— [June 7, 18G1.]— The only . whether a justice has jurisdiction ill under fifty doll iadivicl i , . fiitj dollai V an fifty dol 512 SUPREME COURT Strickland's Adooi'r v. Walker. .mount in controversy is under fifty dolli .ith- etanding each note may be for a part of a <1 ' i amount. ThesplitMugup of a debt into sums under fifty dollars, involves no fraud upon the jurisdiction of the court. The creditor may lawfully, by his own rate act, bring by a receipt a debt over fifty dollars within the jurisdiction of a justice of the peace; and i may the same thing be done by the concurrent act of the creditor and debtor, in dividing a debt into several debts, each for an amount under fifty dollars. These pro] tions are well sustained by the authorities, and we need" not elaborate them. — Fortescue v. Spencer, 2 li 63; Dew v. Eastham, 5 Yerg. 297; JSTibbs- v. Moody, 5 St. &', P. 198 ; King v. Dougherty, 2 St. 437 ; Baird % ■2 Port. 186. This court said, in Nibbs v. MoOdy, , that there was nothing, either in the constitution, or in the act defining the jurisdiction of a justice, to pre- vent the parties from reducing a debt, originally for more, to a less sum, and making it the amount in con- 1 : and thai that might be done by the joint act of 1 dividing the sum into new notes, by payment of part, and entering a credit on the note, or by the cred* itor's voluntary relinquishment of part. # This statement of the law is entitled to our fullest approbation, both on account of its obviou id the long and un- interrupted acquiescence in it for more than twenty years. firmed. STRICKLAND'S ABM'R w. WALKER. S PROMISSORY NOTE, BY PAYEE AGAINST MAKJ 1. Statute of limitation* ; mb%< hnowledgment — To re- vive a debt 1 the statute of limitations, the sul>s<"|"crit lear and explicit; but it is not OF ALABAMA. 51B Im'r v. Walker. iry that th which that promise br acknowledg- ment is establ i i Appeal from the Circuit Court of Tallappc Tried before the Hon. Robert Dougherty. This action was brought by William Towns, as the ad- ministrator of the estate of Silas Strickland, i] agai«st John Walker and Joshua Strickland ; was founded on the defendants' promissory note for §1,000, dated the 26th December, 1843, and payable one day after date, to said Towns, administrator, &e.; and was commence^ oti the 10th day of March, 1852. The defendant Strickland not being served with process, a discontinuance \v; tercd as to him; and the action was revived, before the trial, in the name of Allen Eiland, as the administrator dc bonis non of Silas Strickland. The defendant Walker pleaded, among other things, the statute of limitations of six years; and issue was joined on that idea. The note, which was read in evidence on the trial by che plain- tiff, had a credit of §204 34 endorsed on it, dated the 1st January, 1851, and signed by said Towns, as administra- tor. The plaintiff's evidence tended to show, thai this credit was entered, with the consent of the defendant ker, ou a settlement of accounts between him and said Towns, and was written by one Wheaton ; while the defendant's evidence conduced to show, thai ras- ed to the entry of the credit The court charged the jury— "1. That the I the defendant Walker, to the entry of the lere prob: bil i ties ; but, before the plaintiff can recover, he must licit, that W. did c iin- tiff h eir minds on thi find ;'■ n ndant. "2. That 1 1 inly >14 SOI Strickland's idm'r v. Walker. : to .said the time it was brougbt, the plaintiff can not recover." Tin.'.-*' charges, to which the plaintiff except ( ow . ed as error. ;■'. i'\ Rice, with' Cloptos & Ligon, for appellant. o. W. Gi:nn. STOKE,- J.— [Feb. 11, 1861.] — The first charge given and excepted to in this case, asserts that, to revive a debt barred by the statute of limitations, the promise or ac- kno. rtt must be proved by and We have duly weighed this language, in connection with the authorities, and feel constrained to ce it erroneous. The promise, or acknowledg- , must be clear and explicit. No doubtful, ami or indeterminate lauo swill avail. It must he, in terms, unequivocal ah erminate. If it be aproni- s an unequivocal promis : if an ackuowl incut, that acknowledgment urns' . the length of ad* mi: sent exi ; , which the party is willing to pay. These princ : fully settled, in this State, by numerous adjudi ;. — Ross v. I 20 Ala. 105 ; Townes i. Ferguson, 1 7 ; Bryan v. Ware, &£-.• 687 ; Moore v. Lesueur, 1 i; Boxley v. Gayle, .la. 151 ; Pool v. Eteli la. 701 ; Pitts v. Wooten, 24 Ala. 474.; Jordan v. Hubbard, 26 Ala. 438; Rolstonv, Langdon, 26 Ala. 660; Evans v. Carey, 23 Ala. 99; Bell v. Morrison, 1 Pet. 8. C. 360. Bui there ie a wide 1 difference between the , or acknowledgment, and the evidena by which that promise or acknowledgment is made to appear. The former, no matter how clearly it be proved — even though it be iu waiting — is not sufficient, if' its terms be equivocal or in- smiuate. But there is no ride which requires that the proof of such promise shall be different in measure, or more strict than that which is required to establish any disputed fact in a civil suit. Evidence which satisfies the minds of the jury, is enough. OF ALABAMA. 515 ' ilm'r. We suppose th*e circuit court was misled by an inaccu- rate expression found i 1 ' the opinion in ■ of Bell end oid for want of unadmini i ode, 21720,) althon light be irregJilar and i • 4. I' »irt, Jor (/< the pro' ate court, fbr th sale of a d sc< dent's 1 pur- pose of division among the heirs, obtained by an admini bou, inted, is not rendered void by the prior d. of tin- land to the heirs, the payment of all the debts, and if the personalty by the administrator in chief; aid: »d grounds of in the j irt, to the granting of the order. . —In an action on a fori money of land, sold by an administrator under ■ -bate court, a defect in the I suit, if the court had jurisdiction to oi Appeal from the Circuit Court of Choctaw. Tried before the Hon. 0. W. Rapier. The complaint in this case was in the following words: "A. R. Davis, adra'r of the estate oi A\ m. Collins, dee'd, [* Watson, ,1. W. dwell, G. B. Walk "The plaintiff claims of (he defendants the sum oi onfi hundred and sixty-one 60-100 dollars, duo by their prom- issory note, made by them on the 9th August, 1856, and ble on the 1st January, 1857, with interest thereon J the said sum, when collected, being assets oi* the estate of William Collins, deceased.'' To which the following plea was filed : "Th Ian* C. L. Watson, for answer to the complain; that the note mentioned in the comnlaint was made and exe- OF ALABAMA. 517 is' Adm'r. cuted by him for the payment and purcha tain land in said count; -ribingit,) "whic id plain- Iministrator Wil- liam Collins, formerly of Gre nty, elect and undertook in sell a-' an an mi of said and which, upon audi oft-ua>, in 7 : and I hal the laud bad belonged to * land law of the • lid Collii gran : of all whb ntiff had no t knew nothi ' said ! : nd, oi \V. Q*r. heirs of said Collins, and e ' of the i there is a want and total failure of < said note made by nim as aforesaid." The court sustained a demurrer to this plea, and its judgment on the den ?igned as error. llant, cited veil, 9Ti iller v. J 7; Mattl v. Douthitt," 27 Ala. . ■ I;. W. WALK&R, J.— [June 23, 1SG1.]— [1-2.] In the mar. I e complaint, the plaintiff is styled "admin- istrator of th sof William Collins, d :." This, uld he mere descripti but the i plaint allege.3, that the sum sued for will, "when colh be assets of the estate of William Collins, deceased, which is sufficient to show that the suit is brought by the plain- tiff in hi itive character. — See v. Plantf 31 J )• Arrington v. Hair, 1!) Ala. 24:}; Tate v. Shacjdeford, 24 Ait. 210. Hence, n plea, al which show tba( the plaintiff's letters of administn are void, for want of jurisdiction in the court 1 •.hi I'.' a good plea in bar. — Miller v: Jon . i7. [3.] But we do no1 think tl filed by the de- fendant does this. Unfler onr I; vvs, it is only when the intc- out of* 1 1 I he time of his death, that the in the rv to court jurisdiction. Consequently, the non-exist- ence of assets ii ould not make an adminis- tration void, if the intestate was an inhabitant of the county at the time of his death. — Code, § 1067. Nor do we think that an administration dt ranted by the probate court of the county in which the intestate had his domicile at the time of his death, would be void for want of unadministered assets, although it might be ir- i!:u- i.nd revocable^ — Code, § 1720. OF \. Parish v. Parish. [4-5.] Neither does the plea show that the court : no jurisdiction to order the sale. The prior d the land to the heirs, the payment oi and the ibution of the personalty by the administrator in chiet, would not render mid an order of sale for division, obtained by a legally appointed admihistratoi although t 1 oy might constitute a good ground of ol tion, in the probate court, to the granting of t: A.fld if the court had jurisdiction to order th de- fect in the title is n,p -defence to .a suit for the purchaser mon n kin v. 7 Ala. 179.; Worth in gto n V. L4 ; S. C, 9 Ala. 297 ; Jennings v. Jen- : Pool v la. 752; Itamilton, 33 Ala. 210. Judgment affirmed. . PARISH. L IN KQVn J i thi> prop of my [li ■ h," n- ■ '■ Tir: hill in f William !i ; and i heir hire, and the c: anient, by which the complainant hud ro- ll his inter* - to William The complainant claimed the from Amy Parish, dated the 21st June, 1844, and them in his | n, aa he alle >m the time conveyai .1, until February, 1S;J4, v William Parish, by fraud and misrepresentation, suc- ceeded in obtaining the ; ion of them, and induced! the complainant to release all interest in them to him. The hill alle Parish had posse the slaves, held them adversely to William Parish, and claimed title to them as the property of the estate of Edward Par- ish, d !, of which he was the administrator; and that William Parish had instituted a suit against him to them. The bill also prayed an injunction of this? suit, and general relief. Amy Parish, William and Roger Parish, and the com- plainant's wife, were the children of Edward Parish, de id, who died in 'South Carolina, where he then re- sided, in 1822. The last will and testament of said Ed*- I Parish, which was dated the 5th dune, ^822, and admitted to probate on the Oth August, 1822, and of which said Amy Parish was appointed the executrix, contained the following clauses: "First, 1 give and bequeath to my beloved daughter, Amy Parish, two negroes, viz., Bid and r; also, one plantation, or tract of land, lying and being as follows," (describing it,) "to be her right and property during her life-time, and her heirs' after her, to- gether with their increase; hut, should she die without an heir, then the said property to be equally divided among the rest of my heirs. Secondly, I give to said Amy Par- ish all the rest of my estate, real and personal, to be dis- d of by her as she thinks lit among my lawful heirs ■y death/' Amy Parish duly qualified, in South .Caro- lina, as the executrix of said testator's will, and afterwards brought the slaves to this State, where she died, in the latter part of the year 1853, without children, and having never married. The slaves in controversy arc the de-* OF ALABAMA. 521 Parish v. Parish. scendantsof the woman Sid, mentioned in the first clause of said will. The defendants filed separate answers. William Par- ish admitted, that Amy Parish owned the absolute prop- erty in the slaves, and had conveyed them to the Com- plainant; and he alleged, that he had purchased thecora- plaiuant's interest in them, for a fair and valuable consid- eration, without any fraud or misrepresentation. P Parish admitted, that the conveyance from the complain- ant to William Parish was procured by fraud and other improper means, and ought to be set aside ; but he denied that Amy Parish owned the absolute property in the Blaves, and insisted, on the contrary, that she took only a life-estate under the will of Edward Parish. Each of the defendants demurred to the bill, for want of equity, for misjoinder of parties, and because the complainant had an adequate remedy at law; and William Parish prayed that his answer might be taken as a cross-bill for the recovery of the slaves from Roger Parish, with an ac- count of their hire, and for general relief. At the November term, 1858, by agreement of counsel, the cause was submitted to Chancellor Kkves, for a decree on the legal effect of the will of Edward Parish ; and he held that, under the first da id will, Amy Parish took an absolute estate in th< At the May terra, . on final hearing nd proof, Chancellor Saffold presiding, the complainant's bill was dismissed, at his cost; and a decree I, directing P h to deliver up the i William Parish, and to •unt with him for the hii The appeal i - ted by ' ' 'arieb • and, in i ■ : 1 1 of ily matter a rror which i i the uction • will. LDTHWAl . with whom was L. L. Oato, cil fan- ner v. Livingston, 12 Wendell, 83; Toi I Nutwell, 13 Md. 415; Findlay v. Riddle, 8 Binney, 148; 34 SUPREM1 is, 4 Tei souri. Ilainm . - r > Ala. -"'7- ; lv A.J. WALKER, C. J.— [June 17. 1861.]— Th inbt that the chancellor ling, that Amy Parish took the and that the word hei ' limitation, and not of pure! nothing in the context which shows that the hildren. The limi- tation < i of the first taker witl heirs, with tl that the property should he then divided, >t qualify ive the i children. There ia no qualification wh ; ii ta the heira generally, lineal or collateral, king. The evident meaning of the I that all ; who might be tin' heira of Amy i t her th, might and they can not take as pup- chasers. "When they take in the character of Ik I take in the quality of heirs." The rule in Shelley's aud raergea the limitation over to the heirs in the life-estate, and enlarges or cxpanda the life-estate into a fee.— Price v. Price, 5 Ala. 578 ; Hamner v. Smith, ; Bwing v. Btandifei \ a. 400; Machen v. Machen, L6 Ala. 878; [shell v. Maclin, 24 Ala. 315; ford v. Bull Ala. 418; Lloyd v. Rambo, Ua.709. In pursuance of th< I of counsel, the approval of the chancelloi ion, upon the single point which we have noticed, must work an alii nuance. ALABAMA. K- ^-v aughn r. Heath. :i\ r . he \TII. [tki H F!<):c.]t.1 l. 1 charge to givevindic - they believe, from fli" evidence, that t!i \ . e to the plaintiff's house by night, with a pii to -'11, whii g of the which nd, •elf in th that he I and D >* the ] s and when the plainth ad- sr ':t__ Devaughn v. Heath, ants ran oft"; but one of them was overtaken by the plain- tiff and Hammond. Hammond, who was introduced as a witness by the plaintiff, testified to the information which the plaintiff received of the defendants' plot, and to the facts which occurred on the plaintiff's premises on the occasion referred to. The defendants proved, that the plaintiff had made inconsistent declarations at different -. when speaking of the occurrences at his house on the night of the alleged trespass; and that he or his wife had given two or three pairs of old pantaloons to De- vanghn's slave, who had formerly belonged to Mrs. Heath's first husband. The court charged the jury, at the request of the plain- tiff, "that if Devaughn's slave had been an old family ne- gro of the plaintiff's wife, then the plaintiff, or his wife, had a legal right to give said slave several pairs of old pantaloons, without the knowledge or consent of his mas- ter." The defendants excepted to this charge, and re- quested the court to instruct the jury, "that they can not give vindictive damages, unless they believe, from the ev- idence, that the defendants maliciously entered the plain- tiff's lands, in a rude, aggravating, or resulting manner, and committed the trespass alleged in the complaint." The court refused to give this charge, and the defendants excepted; and they now assign as error the charge given, and the refusal of the charge asked. Allison & Andrews, Richards & Falkner, for appel- lants. Brock & Barnes, Chilton & Yancey, contra. STONE, J.— [June 28, 1861.]— The charge asked by the defendants in the court belo'w, and refused by the court, assumes that, to justify t,he jury in awarding vin- dictive damages, in an action of trespass quare dausuffl fotgit, the defendant must have entered the land malicious- ly, in awivde, aggravating, or in manner. -These con- joint words evidently erected too strict a standard of lia- bility. Trespasses might be so wantonly or recklessly committed, as to justify the imposition of vindictive dam- OF AL A B VMA. Devaughn v. Heath. ages, without any evidence of actual malice towards the owner of the property tr< I upon. The word aggra- vating was probably employed as the synonym of ojfeni \ or insulting. According to it this meaning, eases may be imagined, which would call for exemplary damages, v the act complained of was neither tumultuous, gros ly abusive, couteniptuoUs, nor strictly insulting. It has been ruled that, "in cases attended with circumstanc aggravation, the jury may give exemplary damag Mitchell v. Billingaley,i7Ala.394; Parkerv.Mise,27Ala. 48-3. When the circuin of the trespass are rudej or insulting, malice may be inferred from them. So, malice or ill-will may be found to exist, when there are no accompanying acts of rudeness or insult. The charge was properly refused. — 2 Greenl. Ev. nd note. [2.] The charge given asserts, that Mrs. Heath had the legal right to give to Ralph, the slav :. Devaughn, three or four pairs of old pantaloons, without the know- ledge or consent of the latter. We have looked into this question with much care, and cannot iind that the circuit court erred in giving this charge. The articles are harm- character, and, if gicen, could not possibly have injured Mr. Devaughn. 'We have no statute which forbids the giving of articles like these to The stance of the charge was, that Mrs. Heath had the right to abandon the ownership and \ n of the property to the slave. When tl 1 by delivery, the articles became the property of Mr. De- vaughn, the slave's ma . ;. in a leadi e on this subject, (Fable v. Brown, 2 Hill's Oh. 3&7,) the court 'Tf one having good title to personal property, should transfer it into the ion of l won;. id; the title would be changed, but the title and ;i v. Hnntsville Bank, 1 b on Si. 2; Williams v. Ash, 1 1 . 13. 1 he j udgnmut ol the circa. d. 526 SUPREME COURT Orinond v. Martin. OKMOXD vs. MARTIN. [BILL III BQUITT FOB PARTITION l 1. Adverse pos si tle.—'Wht re a pur- chaser enters into ■ i of land under a vendor's bond, conditioned t title by a specified day, which must arrive before a part of the purchase-money is due by the terms of the contract,):)- a cannot be considered adverse to the dor, until the day appointed for the conveyance of the title ; and where such bond is e by one who professes to act B agent of several joint owners, for one of whom he lias no authority to act. and is thus conditioned for the conveyance of tide by them, r of the purchaser's possession is the same as to all the owners. ion. — The act of February C, " to regulate the ) partition suit i >n Acts 1 ith the necessity of an action at law, ti tie a controverted question of legal title arising in a chancery suit for the partition of lands. 3. Liability ion for i i '-'.—In a • eery suit for the partition of! uids, by analogy to the rule p by statute for real I law, (Code, g 2216,) a defendant, who holds possession under color of title, in good faith, will not be charged with rent for more than one year before the commei ment of the suit ; and he will be allowed compensation for the value of improvements him during such possession, not exceeding untof rents oh rinst him. Appeal from the Chancery Court at Tuskaloo- Heard before the Hon. J umes B. Clark, The bill in this ca ie was filed, on the 12th February, 1857, by the children and heirs-at-law of John F. Martin, deceased, against John J. Ormond; and sought a parti- tion of a certain tract of land, of which the defendant had the possession, and of which the complainants claimed to be entitled to an undivided fifth part, as tenants in common with him, together with one-fifth part of the rents accruing during the defendant's possession. The OF ALABAMA. 627 Ormond v. Martin. land in controversy belonged to William A. Martin, who died in Augu * tte, without wife or children, and leaving live brothers and sisters as his heirs-at-law, one of whom was John F. Martin, the father of the com- plainants. Letters of administration on the estate of said William A. Martin were granted, in September, 1842, to James M. Bradford, who was the husband of one of the decedent's sisters and heirs-at-law. In December, 1 Bradford, professing to act as the agent of the heirs at- law of said William A. Martin, all of whom were then of full age, sold the tract ot land now in controversy to the defendant, and executed to him a bond for titles, dated the 19th December, 1S45, and conditioned "to make to the said Ormond, and to cause to be made by the heirs- at-law of William A. Martin, a title in foe-simple to the said lands by the 1st of July next." By the terms of the contract, $3,000 of the purchase-money was to-be paid by Ormond during the then " present season," and the bal- ance in two equal payments, of $1577 50 each, on t|ie 1st January, 1847, and 1848, with interest from the 1st Jan- uary, 184G. Ormond entered into the possession of the land, under the contract, on the 1st January, 184<) ; con- tinued in the . ip to t lie commencement of this suit, and erected valuable improvements. John F. Mar- tin, the father of the complainants, died in February, 1840, having never conveyed his interest in the lands to the defendant, nor otl I the sale by Brad- ford; but all the other heirs of William A. Martin promptly ratified the sale, and executed conveyances to it. The lant dem i the bill, for want of equity, and pleaded I ; limitations of ton years. The ellor overruled the d r, and, on final hearing on pi in- • plainants; holdii atnte of limita- t tained i . that the dant mde a on the Ian COURT 1 v. Martin. the time hie ion commenced. E icellor's decree is now assign ror. E. W. Peck, far appellaut. — 1. The demurrer to the bill onght to have been sustained, because the complain- ants had not established their title at law. — ; Com. 864-5, note a; "Wilkin v. Wilkin, 1 Johns, i 118; Phelpa v. Green, 3 Johns. Ch. 302; Clapp v. I3i agban, 9 Cowen, 530. 2. The pica of the statute of limitations Jl tony. complete defense to the suit. The defendant , ,1 the land from one who represented that he was authorize I, and whom he believed to be so author- ized; and his possession, taken in good faith under that purchase, was under color and claim of title, and i tinned for more than the length of time j d by the statute as a bar. — Jackson v. Smith, 13 Johns. 406; Clapp v. Bromaghan, Co wen, 550-5G ; Jackson v. Wheajt, 18 Johns. 40; Jackson v. Newton, 18 Johns. , v. Vermilyea, 6 Cowen, 677 ; Smith v. Bur- , 9 Johns. 180. 3. The defendant ought not to have been charged with rent for a longer period than one year before the com- mencement 6i the suit. — Code, § 2216. 4. If the defendant is liable for rents, he is entitled to Compensation for improvements. — Tones v. Ward, 10 Ter- L69; McKinley v. Holliday, 10 Yerger, 477; Hot ledge, 29 Ala. 4 i \V. Col ad S. F. Hale, contra. — 1. There was no for an action al law to establish the complain- ants' title.*— Ilorton v. Sledge, 29 Ala. 478; Delony v. Walker, 9 Porter, 498 ; 6 Dana, 374. 2. The statute of limitations begins to run only from the commencement of an adverse possession. — Tillol v. D< . Kennedy, 5 Ala. 410; 4 Wash. C. C. 3 The defendant went into possession under a title-b< which expressly recognized the title to be in the hell William A. Martin ; and his possession could not p OF ALABAMA. Ormond v. Martin. bly become adverse to them, until the 1st July, 1846, i, by the terms of the contract, their title was to be conveyed to him. — 11 Ohio, •!")•>. bury v. Stewart ■ Ala. 217. The defendant's "i not being adverse to John P. Martin at the time of hi* death, and the complainants being infants at that time, the statute of limitations could not bar their N"or are the facts shown which are i .• to itute adverse possession between tenants in comi Benjc v. Creagh, 21 Ala. 156; Harrison v. Pool, 16 Ala, 17-1: Cotten v. Thompson, 25 Ala. 680; Johnsou v. Toulinin, 18 Ala. 50; 5 Wheaton, 1: 3. On tl ■ and improvements, the ap- pellees rely ou Horton v. Sledge, 21) Ala. 478, andautbor- U. W. WALKER, J.— [July 11, 1861.]— 1. The land, a partition of which is sought, belouged to William A. Martin in his life-time, and on his death descended to his heirs, one of whom was John F. Martin, the father of the complainants. Ormond went into possession oi theland about the 1st ot January, l^lG. John F. Martin (the father of the complainant inFebruary, L846. The ion to be determined is, whether tl n of Ormond, commencing ou January, John F. Martin, \ I in the ding tuiplaina at the d on was at that time . his ph . of limitations must fail. > ■ 9 and to i : the I • I . with "nil I i ._ SUPREME COURT rtin. to Ormond, and to cause to be made by the heir-at-law of William A. Martin, a title in fee-simple to the land by the 1st July, 1846. The answers of the defendant show, that Bradford professed to be the agent of* the Ik : "William A. Martin, all of whom w . that dt fendant believed that Bradford was authorized*to Bell the land; that, so believing, Ik- made the purchase from Bra< ford, relying on the power and authority of the latter to make the sale, and that he entered into the p ;i of, an t continued to hold the land, under and by virtu said purcl to all of the heirs John F. Mar- tin, it is shown that Bradford was authorized to make the sale; for they ratified the same, and severally oon- i to Ormond. But the interest of John F. Martin was never conveyed to Ormond ; and, under the pleadings and evidence, it must be held, that Bradford had ^no au- thority to sell his share. Where a party enters into the possession of land under a bond conditioned to make titles when the pure! money is paid, his ] n, so long as the purchase* money remains unpaid, is held to he in subordination to itle of the vendor; and in an aetion by the latter for the recovery of the land, the vendee cannot claim the pro- tection of the statute of limitations, on the ground of ad- jion under color of title. — Seabury v. Stewart fc.Easton, 22 Ala. 207; McQueen v. [vey, 36 Ala. But, when the vendee has complied with the terms of the contract on his part, by paying the purehase-money, such a bond is color of title; and if he thereafter remain in ession, claiming the land as his own, for the period prescribed by the statute of limitations, the legal title will be barred. — McQueen v. Iv Ala. 308, and easel In the present case, the bond \vlts not conditio to make titles upon the payment of the purchase-money, but by a day named, which would arrive, according to the term of the contract, before a part of the purchase- money would be due. The precise question, whether, iu such a case, the possession of the vendee can be consid- ered adverse, before the time appointed for the convey- OF ALABAMA. 531 Ormotxl v. Martin. ance of the title to him, has never been considered by this court. But we think that the rule deducible from the authorities is, that, until the time appointed for the conveyance of the title, a possession under such a bond must be considered as held in subordination to the title of the vendor, or person whose conveyance ia stipulated for. The principle seems to be, that where one enters under an executory agreement for a future conveyance, his possession cannot be deemed adverse, until he is, by the terms of the agreement, entitled to the conveyance, ■r, 12 Johns. 400; Fosgate v. Herki- mer Co., 12 Bar!. tper v. 'Griffin, 12 Geo. 457; LaFrombois v. J . 8 Cow. 597; Briggs v. Pro 14 Wend. 228; Jacksou v. John n, 74 (91-2;) Higgiubothara v. Fish back, 1 Marsh. 506. As, by the terms of the contract, Ormond had no right to demand a deed from the heirs for whom Bradford authorized to sell, beiore the 1st July, 1816, it fol- lows, under the nil e abov . that hi- ion was, until then, not adverse to them. Was the case different i the heir whose agent Bradford professed to be, but who never ratified t bom, we must, upon this record, hold he was not authorized to act ? Every clement in the definition of what constitul title by ad\ • ion. rau vise the ; ou will not confer title under thi lim- itations.— Groft v. VVeaklan m is but a link in the chain of title by ad\ holding. It is th< with an in; laim list the true owner, which render try and ion ad\ i that he holds in subord • the in which all the I SUPRE irtin'. or continued, are tho only tests. — Angell 1. 1, 386, 390, and author!! 1. . Now, it is certain that, < >rmoud's intention I the chai -ion, it was to all the itended to hold ad- !y to John P. Martin, then he intended to hold ad- sly to ti lieirs. His 1 pied the sam »n towards John F. Martin that he occupied Is the other heirs. His intention was to hold under the bond. I!'' did not claim to hold o than under the bond; and, as that recognized the as in the heirs, hie -ion must have been in subordination to their title. Where the very instrument under which one holds recognizes the title to the land as in another person, ii n *1 stipulates for a future con of the same to the possessor, it is impossible in the nature of things that the latter can intend to hold ad- sly to the person whose title he thus recognizes. — Authoriti ra. The precise question we ar . was considi in the case of Stamper v. Grim' i, (20 Geo. -1::.) where it Was held, that one who holds land under a bond for titles, in the name of the true owner, docs not, so long as the purchase-money remains unpaid, hold adv. o the true owner, even though the bond be a' forgery ; provided ii to he the he. id of the true owner. The .mentis put in so striking a light by Denning, .1., who delivered the opinion of the court, that we transcribe rtion of it. il i' available under the statute of lim- itations, has to ho adverse to the title of the true owner. ion of no person can be adverse to the title of the true owner, unless the person intends it to he ad'. No one can intend a possession to he .;d- • to the title of the true owner, which possession he considers hin holding under the true owner. 1/ one who holds his ; on under a bond for ti le by the true owner, must, if the purchasi remains unpaid., consider himself as holding under the OF A LA RAM A. Oi-nioii'l v. Martin. true owner. The re I'm-.', no one who bo holds, can intend his | i to bo adverse to the title of the true owner; and therefore, the po one who so holdi adverse to that title. So equally every one who holds his pi i under a bond tor titles, not made by the true owner, but which he believes to hav rnude by the true owner, and not by some man personating the trine owner, must, purchase-money remains unpaid, ider himself as holding under the true owner. That be his thought, if he believes the bond to be genuine, whether it be genuine or not. Therefore, no one \vl holds can intend his | adverse to the title of the tru r; and therefore, the possession of no one. who so holds, is adverse to the possession of the true owner. In these two sorts of possession, the result is ' precisely the same, whether the bond be spurious or nine: because, in the* two sorts of] >n, the i of the holder is the same. Iti each, he intends his ]>os- ion to 1 ion under the true owner; and intending this, he cannot intend tl sssion to be adverse to the true owner's title. * * <4 To illustrate: C. is the owner of a lot of land ; A. goes to B., and -avs to him. that he is the agent for C. the lot, and sells the lot to B., with the understanding that the title is to be made by C, when the purchase-money shall have been paid by B., and that he is to get from for B., C.'s bond to tl ; A. brings a bond to B., with 1 as a bond of l , bond is a forgery; B. ta it, — B. d d to hold adversely to C, b< be thinks he ilding under C; and so thinking, it cannot, be sup- posed thai I '." rtained I ion ol ( f Johp l'\ Martin. to tb ad ford was author- i \vn, . Marti; wine it. SUPREME COURT Borum v. King's Adm'r. •_'. The rule of law which requi action at law settle a controverted question ^l' legal title, arising in a chancery proceeding tor the partition of land, is char statute in this State ; and it is not now indispensable that such suit should be had.— Acts '57-8, p. 294. 3. Section 2216 oi the Code provides, that "persons holding | »r of title, in good faith, are not responsihle for damages, or rent, for more than one year before the conm ent of the suit." Although this section is part of a chapter which relates to real ac- tions in courts of law, we think that a court of chancery should apply to a case like this, which is in the nature of an equitable ejectment, a rule analogous to that which tatute prescribes for the action at law. llcnee, we think that the chancellor erred, in charging the appellant with rent for more than one year before the commence- ment of the suit. The appellant is entitled to the value of the improvements made by him after the 1st July, 1840, at which time the bond under which he ent became color of title ; hut it .must be borne in mind, that he can in no event be entitled to compensation lor im- provements made, beyond the rents charged against him. Horton v. Sledge, 29 Ala. 498, and authorities there cited. . Decree reversed, and cause remanded. BOKTM vs. KING'S ADM'R. [bill in equity to enforce voluntary executory trust.] 1. Consideration of deed. — Love and affection for a grandson is not a valuable consideration for a deed. 2. Transfer of note ; presumed existence of conwion law in sister State. — By the common law, (which will be presumed, in the absence of evidence to the contrary, to prevail in a sister State,) to transfer OF ALABAMA. in v. King's Adm'r. the I ;al title to a prom ithout delivery, it is n y that there should 1 cent on the note itself, or on her paper attached to it. 3. Vo ■'. — A court of equity will not eni mtororhi itative, a purely voluntary executory trust in favor of a grand-child. Appeal from the Chancery Court of Macon. rd before the Hon. James B. Clare. Tin: bill in this case was filed by William B. Borura, against the personal representative of his maternal grand- father, William King, deceased : and sought to enforce the s] tecific cutiorj of a trust, created by a deed of which the following is a copy: " State of Georgia, 1 Know all men, by these pres- Ilarris county, /cuts, that I, William King, of the State and county aforesaid, for and on account of the relationship and love that I have for my grandson, Wil- liam Benjamin Borura, do, by these presents, give and convey unto my grandson one note of hand, for the amount of $475, on Benjamin F. Borum, the father of my grandson, due the 30th November, 1859 ; and I. give to my said grandson the further sum of ! $1, 000, law- ful money, to be paid to the said William B. Borum at my d\ | appoint I nt, and guardian of D and- son, to manage and control the before-mentioned sum SUPREME COURT Borum V. 7\iiiL''-< Adin'r. of money, to the best advantage, for m\ [he] may, ifhe thinks proper, pay the ml money to the clothing and educating of my said ^rand- sop. It is no f, that the money should in no wise be paid into the hands of Benjamin F. Boru#n, the father of my grandson, but that a guardian be ap- pointed by the court from out of the relations of my grandson's mother, which guardian may act agreeably to the instructions above s] for Harvey King. More- over, if I should die, and make no will, this gift to my grandson is to be considered in full of all of my grand and is to forever prevent him, or his father, from any claim on my estate. In witness whereof, I have hereunto set my hand and seal, this 1st December, A. D. 1840." "William Kino, [seal.]" "Wm. B. Pry or, "Osborn Crook." The bill alleged, that this deed was executed in Geor- gia, where the grantor then resided, was delivered by him to the complainant, "so far as the circumstances of the case would admit, and caused to be spread upon the records of the proper office "; that the grantor afterw collected from Benjamin F. Borum the money due on said note mentioned in said deed, but never paid any part of it, or of the §1,000 mentioned in said deed, to the complainant ; that said grantor removed to Macon County, Alabama, in theyear 1845, and there died in October, 1 that letters of administration on his estate, cum testamenta annexo, were duly granted to the defendant, who ref to pay complainant any part of said moneys; that Harvey King died in the year 1856, and that the complainant was o\ er twenty-one years of age. The prayer of the bill was for an account, a money decree against the adminis- trator for the amount which might be found due to the complainant, and general relief. The chancellor dis- ied the bill, on motion, t for want of equity; and his decree is now assigned as error. ' I OF ALABAMA. 537 Boium v. Kind's Adin'r. Geo. W. Gunn, with W. P. Chilton, for appellant CLofTON & Ligon, contra. A. J. WALKER, C. J.— [July 10, 1861.]— We think it is clear that the decision of the chancellor was correct. Love and affection for ■ grandton is not a valuable con- sideration, as we decided in Kinnebrew v. Kinnebrew, !.'.. 628. The deed of William King was, therefore, purely voluntary. The deed did not convey the legal title to the note therein described. Supposing the com- mon law to have prevailed in Georgia, where the deed was executed, the note not having been delivered, an en- dorsement on the paper itself, or at least ou one attached to it, was necessary to transfer the legal title. — Hall v. M. Bank of Mobile, 6 Ala. TGI. We have, then, so far as the note is concerned, "an instrument purporting to be a conveyance, or assignment of property, * * * but which does not operate to divest the grantor of the legal estate (title);" and which, therefore, does- not 'con- vey a perfect executed trust. The execution of such an instrument, it beingpurely voluntary, will not be enforced in equity against the party himself, or against his rep- resentatives after his decease. — Hill on Trustees, 187; Ellison v. Ellison, 6 V< . 1 Lead. Cas, in Eq. 167, and notes by Hare &.\Vallace; 2 Storj Jur. i a ; Crompton v. Va Ala. - 2.3!>: Kinnebrew v. Kinnebrew, supra, g i far as tb< and dollars men- tioned in the do ed, if the instrument can be operative inter vivos, it is settled in Kinne- brew v. Kinnebr he trust will not be en- d in equity. V\ ;o the r< and author- 1 in the case lasl <>n this point. VVe deem it pro] mark, that the ar authorities of thi llor ha- i aa to sion of this case, and, indeed, bave left us but little to do save to concur in his c Affirm< 35 £38 . SUPREME CO v. Mct'ampbell. DAVIS vs. McCAMPBELL. [PETITIO.N WUN'i AFTER FINAL JUDGMENT AT LAW.] • 1. Security for cost* of appeal. — On appeal from a judgment of the cir- cuit court, dismissing a petition for rehearing after final judgment, (Code, \\ 2407-15.) the surety on the supersedeas bond, being a party defendant to the judgment appealed from, cannot become a surety for the costs of the appeal; and if there is no other surety for the costs, (Code, \ 3041.) the appeal will be dismissed on moti itt. 2. lie hear i: '. — Section 2407 of the Code, authorizing a rehearing after final judgment at. law, on account of a lost receipt or discharge of the claim sued on, which has since been found, does not apply to a case where the action is founded on a promissory note, and the receipt only shovs a payment of the original consideration of the note. •;e,on account of surprise, incident, mistake, or fraud. — Where the defendant in an action at law is required by tho court, as the con. dition of a continuance, to confess a judgment for a part of the pi dntiff'fi demand, and confesses judgment accordingly, lie cannot itain a rehearing as to the confessed judgment, (Code, § 2408,) on the ground of surprise, accident, mistake, or fraud. Appeal fro hi the Circuit Court of Calliouu. Tried before the Hon. S. D. Hale. TnE original action in this case was brought by Jai A. MeGampbell, against J. L. Davis, and was founded on the defendant's promissory note for §340 37, dated the 27th April, 1858, and payable one day after date. The defendant pleaded not guilty, want of consideration, failure of consideration, fraud in procuring tho execution of the note, and set-oft'. At the May term, 1859, a judgment Wae rendered against the defendant, by confession, for $175; and the cause was continued as to the residue of the jplaintifTs demand. On the 3d September, lb'59, the defendant filed his petition, duly sworn to, asking a supersedeas of the execution which had been issued on the confessed judgment, and a rehearing of the cause; and OF ALABAMA. 539 Davis v. McCampbell. executed a supersedeas bond, as required by the statute, With M. J. Turnloy as his surety. The petition alleged, that the note was executed by tlie defendant as the ad- ministrator of the estate of one William Mallory, deceased, and was given for the amount of an open account, which the plaintiff' claimed to hold against said Mallory; that one item of said account was $180 60, paid by plaintiff to one McNutt on the 18th October, 1853, and another item -was #71 63, taxes paid by plaintiff in November, 1853, — both of said payments' having been made by plaintiff, as he claimed, lor said Mallory in his life-time; that the defendant, believing he had a good defense against the note, asked a continuance of the cause at the trial term, but was unable to make a satisfactory showing, and was therefore required by the court to confess a judgment, as above stated, for a part of the plaintiff'! demand, as the condition on which a continuance would be granted as to the residue : and that, after the rendition of this judg- ment, he hail found receipts showing the previous pay- I of the two items above mentioned, whieh receipts • lost or mislaid at the time the judgment was ren- dered. The court having overruled a demurrer to the petition, the plaintiff in the judgment filed a plea, deny- he truth of the facts therein alleged; and issue wa3 joined on i^ud plea. On the trial before the jury, as the bill of exceptions shows, the petitioner offered in evidence the plaintiff's Inswers to int< rrogatories under the statute, the receipts ioned in th n, and testimony tending to shew the judgment \\ 1 under the circumstai 1 in the petition. Tie , it which was the ori- consider; tion of the note, was made an exhibit to dntiff, and also to one of the jinal action ; and while said Elbcount contain. :ainst the defendant for the 'ems a him" credits for two ry nearly corresponding with those items, both in d amounts. The petitioner d several ex- ious to the rulings of the court on the evidence, .i:\ik « . jury, that th ntiff ill tlic juil to which cl I dismissed the petition ai 1 rcud< and his i ■ nd tlii- judgmenl t with the ruling j of the 1 on the pl< and cvi I. on tl ; ir wan! M. .1. TuitSLET, r<>r appellant. M \irnv, If STONE, J.— [.Jui: b a motion 1 made in this the appeal, for waul rity " feel bound I d r<» it. Tl taken from tho judgment of the ci >urt, disti ini: I That judgment was rend linst .1. \j. Davis, and M. J. Turnley, his surety on li md : the ju I both of \ hemi M. J. Turnley is the only surety for costs of the appeal to irt. Being a party to the judgment appei 1 from, tl: tiou by him of the obligation intended as arity fo t a compliance with' section ', of tl There is i \\ for costs, and the ap- peal urn The appeal, however, may be amended, or a new appeal cuted, as two years have not elapsed since the judgment appealed from was pronounced. We will, therefore, <1 the merits of 1 1 We DISTRIBUTION Or DBCKDBNT'B ESTATK.J s, — Money, or property, given by a parent to a child, will be presumed to have been intended as an advancement, unless such pr< id by the nature of the gift, or by other evide ving that it was intended, as an absolute gift. To show that an absolute gift, and not a mere advancement, was in- mtemporaneons declarations of the parent are admis- sible evidence for the child ; '•and when the question arises be- tween distributees, there is much reason, as well as authority, in support of the proposition,'' that the subsequent declaration the parent, <• .■•. of his intention in parting with the prop- erty, a;v .• > for the same purpose. But in this ig the admissibility of such subsequent declarations, And considering them in connection with the other tacts proved, they are not sufficient to show that the primary court erred in de- ciding that the property was inl Ivancement. Appeal from the Register in Chancery at Claiborne, sitting as Probate Judge for Monroe county. In the matter of the final settlement and distribution of the estate of Alexander Autrey, deceased, on the sug- gestion of the administrator, that the decedent had made advancements in his life-time to Anonymous I). Am his son, which ought to be brought into hotchpot. Op the trial (»f the issue joined on this suggestion, as the hill of exceptions states, "the only evidence adduced waa the following " : 1. The answer of said Anonymous B. Autrey, on oath, as required by the act of February 8, 1858, "to better OF A LABA MA. __ 543 Autroy v. Autivv's .Vlm'r. ascertain advancements," &c. 1857-58, p. 305,) in the following words: "Affiant 3ays, that his father, Alexander Autrey, gave him the following de- scribed property, to-wit : In the year 1828, household fur- niture, valued by said Alexander Autrey at the time of the gift at $25; one Albert, valued at, and worth $400; in the year 182t, or 1822, one colt, worth $6; in the year 1851, one negro man, Dick, valued by said Alex- ander Autrey at $1,000; and in the year 1854, in cash, $1,980. The above is the only property affiant received from his father, as a gift or advancement. There property given by said Alexander Autrey to all his children ; but affiant cannot positively say; whether the property wassogivi n as an advancement, to be accounted for on the final settlement of the estate of said Alexander, or was intended as a gift to said children." 2. The testimony of Parthenia B. Autrey: "Alexan- der Autrey in his life-time gave to Anonymous B. Au- trey, his son, on< boy, Albert; one negro woman, Oily; also, one } T oung horse, five or six head df cattle, four or five sheep, one bed and fumitute; worth, in all, about $1-00. Said property was given about the . lie also gave to said Anonymous, in the , a likely negro man, named Dick Hunter, worth about $1,000, and $2,000 in gold : and he . ,e to Anonymous, in informed by said A r and Anonymous An; rev." 8. '. ny of Willie Darby: "Anonymous B. Autrey told witness, in 1864, that Alexander Autrey let him huv. ) t given it to him at that tii; • then lived in '; i by him." 4. The t< stimony of R. T. Ba Au- told witn< - . ;n ion had at his iir* that, he bad i ty to I The W'oi . id that that ; ick into my cstat to live.' In,. id thai >44 SUPREME COURT Autrey v. Autrey's Adm'r. made a will, and showed it to witness, and witness read it. 'Now, the property in my possession is all that is included }n that will. I have named no property in that will, only the valuation of it, which is $12,000 worth of negro property for my living children'; §0,000 for < of his children, if that much was on hand, in money. He then said, there would probably be thirty-live or negroes left for his wife, during her life; and at berdt ath, he wanted those negroes all divided equally among his grandchildren included. This conversation was in 1S53, or 1854. Witness heard said Autrey repeat the same on other occasions subsequently, and heard him say. thajt what he had given his children was theirs, and not his; that he had given it to them as a present; that they had helped him to make it, and [he] wanted to see them enjoy it while he lived ; and that if they spent it he could not help it. He often told witness, that lie never wanted the property lie had given to them to come hack into his i r to he divided among his heirs; this was subsequent to the first conversation spoken of. Witness has heard him say the same thing, in substance, ten or twelve times, more or less." (Cross-examination.) " Autrey never named any property he had given to any of his children ; but he told witness, that he had given more property to his sons, than to his daughters. He never told witness what his intentions were when he gave oft' his property to his children. In the conversations alluded to, witness can't say that said Autrey used the language, 'I never intended,' or l I don't intend'; but thinks he said, ' I don't Intend. ' 5. The testimony of A. L. 'Autrey, a son of Anony- mous B. Autrey : " About November, 1855, I went to live with my grandfather, Alexander B. Autrey, and re- mained with him until his death. During that time, he tently told me, that he made advancements of prop- erty to his different! children, but had always intended such advancements as absolute gifts, and did not wish or intend that they should ever be brought up on the final disposition of his estate. I have heard him say, that he OF ALABAMA. 545 Autrey v. Autrey's Adm'r. had loaned a negro girl to Anonymous B. Autrey, to keep until he (said Alex.) could get a negro boy for him J that said negro girl died in the possession of said Anony- mous, but belonged to him (said Alex.) at the time of her death, and he did not hold said Anonymous accountable for her value." (Cross-examination.) "I would further state, that I now recollect of no person being present whensaid Autrey and myself had the conversations men- tioned above; but they were repeated frequently while I was with him. He also said, that he made a will at one time, but had destroyed it : and that he did not wish his property to be divided, or taken from those to whom he had given it, if he should die without- making another will. I believe Oily was the name of the girl which said Autrey said he had given to said Anonymous. I do not know her value." " Thereupon, the said Anonymous B. Autrey moved the court, that he be not charged with any advancements; but the court overruled his motion, and held that he was chargeable with $6,300 as an advancement from his father, which he should bring into hotchpot"; and this ruling and decision of the court, to which an exception was re- served by the said Anonymous, is now assigned as error. Torrey & Lbslih, for appellant. — The evidence set out in the record elearly shows, that, the court below erred in charging the appellant with $6,300 as an advancement. As ip i obji ction was made to any portion of the evidence, dmissibility was thereby conceded, and cannot now be questioned, As to the admissibility of the decedent's Subsequent declarations, if the court should hold that that can be here considered, the appellant relies on the following authorities : Phillips v. Chappell, 10 Geo. I6 ; £ 1 v. Smith. appeals $8 Penn. St. (11 Han . Johnson v. Belden, 2fr Conn. Went/, v. Dehai \ K. 312; Butli rv. Mer. . 14 Ala. 777; Mitchell 'v. Mitchell, 8 Ala. 421- r . W. '. — The decree of the court below is 546 SUPREME COURT A u trey v. Autrey's Adm'r. fully sustained by the evidence. The subsequent d rations of the intestate, if admissible for any pur] are not sufficient to outweigh the other facts in proof; and they are not competent evidence. — Rumbly v. St ton, 24 Ala. 712 ; Martin v: Hard, sty, 27 Ala. 45S ; Gil- lespie v. Burleson, 28 Ala. 552; May v. May, 28 Ala. R. W. WALKER, J.— [July 3, 1861.]— The rule is, that when either money or property is given by a parent to bis child, it will be presumed to be an "advancement" under the statute, unless the nature of the gift repels such presumption; as in the case of trifling presents, money expended for education, &c. But the presump- tion, that property given by a parent to his child was in- tended as an 'advancement,' may be repelled by evidence showing that a gift, aud not an advancement, was in- tended : and for this purpose, the contemporaneous dec- larations of the parent are admissible. — Mitchell v. Mitch- ell, 8 Ala. 414, 421 ; Butler v. ?Ier. Ins. Co. 14 Ala. 777. And where the question aris.'S between distribul whither property received by one of them was intended as an 'advancement,' or as a pure gift, there is much rea- son, as well as authority, in support of the proposition, that the declarations of the intestate, made subsequent to the delivery, expressive oi his intention in parting with the property, are admissible in favor of the child to whom it was delivered. — Phillips v. Chappell, 1C Geo. 10; Sher- wood v. Smith, 28 Conn. Rep. 516; Lawson's appeal, 2.'5 Penn. St. Et, 85; Johnson v. Belden, 20 Conn. 322; 2 Pbill. Ev. (C. &. Jl.'s notes, edit, of 1850,) 705. We need not, however, decide this question in the present case; for, assuming the admissibility of all the evidence set out in this record, we are not so well con-, vinced that the register erred in his conclusion, that we are willing to reverse his decree. The appellant tiled his answer to the allegation,. as required by the act of Feb- ruary 8, '68, (Acts '57-8, p. 305); and in that he states, that in 1828 he received "household furniture, valued by said Alexander Autrey at the time of the gift, at §25, OF ALABAMA. £tt* Autrey v. Autrev's Adm'r, j? and one negro, Albert, valued at and worth $400;" ao/f that in 1851 he received "one negro man, Dick, valued by said Alexander Autrey at $1,000." The fact thait.tjjfe property Wtt9 given and received at a specified \ftlu£, seems to indicate that it was intended as an advance- ment, and not as a pure gift. At any rate, it ia^cleSr from the appellant's answer, that the alleged intent/ion f>f the intestate, that the property should be held a^'jp gift, and not as an advancement, was not communicated Jo the son, cither when the property was delivered, or at any time afterwards. This ■■•circumstance, we think, •raises a Strong presumption against the existence of such .aiy.in- r tention. The only evidence to repel this presumption consists of the subsequent declarations of the pa»ent, testified to by two witnesses, one of whom is the son of the appellant. The 'declarations detailed by thywitness Baggett, are reconcilable with the idea, that the intestate intended that the property should be considered an ad- vancement; and that all that he meant to stat<5 to the witness was, that the property which he had d< tovered to />*" his children, had not been simply loaned to them, but- ' that he had .given them the absolute title. When \ve/«' consider the relation of the other witness to the appel-./"" hint, and the caution with which evidence of declara- ' tions, made in casual conversations, should always be received, we are not convinced that the register erred in deciding that this testimony was insufficient to overturn the presumption of an 'advancement' arising out of the other facti in the case. The record docs not show that the girl Oily constituted a part of the advancements with which the appellant was charged. On the cJfStrary, the inference from the record is, that the sum with whichJpjF was charg 1 waa exclusive of her value. Decree affirmed. /A 3 SUPREME COURT 3edell's Adm'r v. Smith. BEDELL'S ADM'R vs. SMITH. .. | ACTION FOK BREACH OK Vr.NDOli's TITLE-BOND.] % 1., Tender of deed, and eviction, as prerequisites to right of action on ten- doi\ bond. — Where the vendor has no title, and, for that reason, refuses to make a title when requested, the tender of a deed by the purchaser, to be executed, is not necessary to perfect his right of action on the title-bond : and an actual eviction of the purcha- ser is not necessary, since his right of action accrues so soon as the bond is broken by a failure to convey. 2. Admissibility of declarations of vendor 'and his administrator, showing refusal and inability to make title. — In an action on a title-bond, mst the personal representative of the vendor, the declarations of thArendor in his life-time, and of thetlefendant after his quali- fication's administrator, showing a refusal and inability on the part of-each to make title, are competent evidence for the plaintiff 3. Limitation of act ion for breach of title-bond. — Under the law existing ^before 'the adoption of the Code, (Clay's Digest, 327, \ 81,) there wis no statute of limitations applicable to an action for a breach of a vendor's title-bond. 4. Partial satisfaction of bond. — A deed, executed by the vendor at theiequestof the purchaser, conveying a part of the land em- , braced in the title-bond, with covenants of warranty, to a third person, may be accepted by the pun baser as a partial compliance with the condition of the bond ; and being so accepted, its admis- sibility and validity are not affected by a mistake in the descrip- tion of the land conveyed, nor by the fact that the vendor had no title to that part of the land. 5. Who is pmper party plaintiff. — The obligee is the proper party to sue for the hreach of a vendor's title-bond, {Code, §2129,) although he bought "ivpart of the land for the use of a third person, and has sold the "residue. Appeal from the Circuit Court of Macon. Tried before the Hon. Robert Dougherty. Tins action was brought bj- George Smith, against the personal representative of Thomas J. Bedell, deceased; was founded on the decedent's penal bond, dated the 11th April, 1838, and conditioned that he should, on or before OF ALABAMA. 549 Bedell's Adm'r v. Smith. frhe 25th December, 1339, make to the said George Smith "good and sufficient titles" to a certain tract of land, sit- uated in Wilkes county, Georgia, containing three hun- dred and twenty acres, and described in the bond as "the east half of section number one, township nineteen, and range twenty-live"; and was commenced on the 15th September, 1857. The complaint set out the bond, and alleged as a breach of the condition, that the said dece- dent in his life-time, and the defendant as his administra- tor, had each been requested to make titles to the said tract of land, according to the condition of said bond, and had failed and refused so to do ; and that neither the de- cedent in his life-time, nor the defendant as his adminis- trator, had ever had a good title to the said tract of land. The defendant demurred to each breach assigned in the complaint, because there was no averment of the tender of a deed, and because there was no averment that the plaintiff had been evicted from the land. The court overruled the demurrer, and the defendant then pleaded the statutes of limitations of ten and sixteen years. There was also an agreement, "that any matter of defense might be given. in evidence, as if legally and properly pleaded, and that all proper and legal replications should be con- sidered as filed." On the trial, as the bill of exceptions states, the plain- tiff read in evidence the bond on which the suit was founded, and proved that the lands, on the 25th Decem- ber, 1839, were worth $3,000; also, "that he called on the defendant's intestate, at the maturity of said b#nd, and demanded of him a title to said land ; that the said intes- tate replied, that he did not have a title, and could not then make one"; also, "that he again called on said intes- tate, in 1841, or 1842, and demanded a title to said lands; that said int< plied to this demand as before, and asked f«>r further time to comply with his bond"; "that he again called on the intestate, in 1S52, and demanded titles to said lands; that said intestate replied as before, and further said, that the man had run away from whom he had purchased the land, and that he had been unable SUPREME COURT Bedell's Adm'r v. Smith. to find him ; that plaiiitiil" thereupon told him, that he had I'm ployed counsel to bring suit on the bond ; to which Raid intestate replied, that the statute <5f limitations would soon give title to the land, and that he would get a potent for the land, if plaintiff would not sue him on the bond, and make him a title, and asked for further time to make title"; "that in June, 1857, plaintiff called on defendant, and demanded a title to said lands; and that defendant replied, that she had no title to said lands, and did not know anything about the title, and had not been aide to find out from whom her intestate had purchased .said lands." The defendant objected to the admission of the declarations of herself and her intestate, as above stated, and reserved exceptions to the overruling of her several objections. "The. foregoing being all the evidence introduced by the plaintiff, the defendant then proved, that the plaintiff went into the possession of said lands, in 18-30, and re- tained the possession of one hundred and sixty acres thereof for several years, and then sold the same to Miss Susannah Hugely, who went into the possession thereof immediately after the sale, and lias cultivated the same, and remained in possession ever since, undisturbed ; that the other half of said land was purchased by plaintiff for his mother, who went into the possession thereof in 1839, and has been in possession thereof ever since, cultivating the same as her own. The defendant offered to prove, that, on the 12th December, 1853, at the instance of the plaintiff, said intrastate made a deed to Miss Hugely for one hundred and sixty acres of said land, and that plain- tiff received said deed as a compliance, to that extent, with the obligation of the bond; but, because the range named in said deed was, by mistake, different from that stated in the bond, the court excluded said deed from the jury, on the plaintiff's objection ; to which the defendant excepted. In connection with said deed, and the accept- ance of the same by the plaintiff, the defendant offered to show, that the land described in the bond was the land intended to be conveyed by said deed; but the court ex- OF ALABAMA. 551 Bedell's Adm'r v. Smith. eluded this evidence also, and the defendant excepted. The defendant offered to [trove, also, the value of the rent of the land so possessed by the plaintiff, since the plain- tiff went into the possession thereof; but the court ex- cluded this evidence also, and the defendant excepted. The defendant also proved, that she obtained ! administration on the estate of hor intestate, on the lGth October, 1856, and, immediately thereafter, made publi- cation as the law directs."' The defendant also read in evidence two letters; one from the commissioner of the general land-office at Washington, dated the 28th Decem- ber, 1857, which stated, that the land described in the bond was an Indian reservation, and was not subject to entry as public land; and the other from the plaintiff, to the defendant's attorney, dated the 27th September, 1858, and stating, that plaintiff had bought one half the land for his mother — that the title was "going" to his mother — that the suit was brought in his name, because the bond was in his name — ami that the intestate had made a deed to Miss Hugely for the other half of the land. "This being all the evidence, thai'eourt charged the jury, that, if they believed the evidence to lie true, the plaintiff was entitled to recover the value of the land on the 25th December, 1839, with ii from that time to the present"; also, '-that the declarations of the defend- ant's int< • proved, if they believed that they were made as proved, would prevent the statute of limitations from being a bat to this action"; and that, "the suit hav- ing been ci d within eighteen months after the grant o! Iminist ration ou the intestate's es- tate, the jury had nothing to do with the plea of the statute of non-claim, and need not ascertain whether the claim was presented to the defendant before the com- cement of the suit"; to each of which charges the adant excepted. The rulings i. f the court on the pleadings and evidei and the charg< - to the jury, as before stated, are nov. signed as en SU PREME COURT . _ Bedell's Ailm'r v. Smith. If. Watts, Cloptox & Li&on, and N. S. Gbab for appellants. — 1. Each breach assigned in the complaint is demurrable, because there is no averment of the tender of a deed, and no averment of an eviction by title para- mount. — Wade v. Killough, 4 Stew. & P. 450'; Johnson v. Collins, 17 Ala. 324, and authorities there cited ; Banks v. Whitehead, 7 Ala. 81. 2. The statute of limitations was a complete bar, under the facts proved; and neither the declarations of the in- testate, nor those of the defendant, could prevent the statute from running. — Crawford v. Childers, 1 Ala. 482 3 McVay v. Wheeler, 6 Porter, 205; Duffic v. Phillips, 31 Ala. 573; 11 Wheaton, 309; 3 Md. Ch. 398; 16 Geo. 114; 11 Ired. 427 ; Angell on Lim. 247, § 28. 3. The deed to Hugely, for a part of the land, being executed at the request of the plaintiff, and accepted by him, was a partial satisfaction of the bond; at least, it ought to have been allowed to go to the jury, that they might determine whether it was so accepted. — Collins v. Johnson, 20 Ala. 485; Gibbs v. Jemison, 12 Ala. 820. 4. The first chaf%e to the jury was erroneous for sev- eral reasons. In the first place, it was an invasion of the province of the jury, because there "was a conflict in the evidence. — Allman v. Gann, 29 Ala. 240; Freeman v. Scurlock, 27 Ala. 407. In the next place, the plaintiff was not entitled to recover at all, because he was not the party really interested ; having bought one half of the land for his mother, and having sold the other half to Hugely. In the next place, if the plaintiff was entitled to recover at all, the charge asserted an erroneous mea- sure. of damages. — WVitesides v. Jennings, 19 Ala. 784. Gunn & Strange, contra. — 1. The complaint alleges facts which dispense with the necessity of averring an eviction and the tender of a deed. — Johnson v. Collins, 17 Ala. 318 ; Garnett v. Yoe, 17 Ala. 74 ; Allen v. Greene, 19 Ala. 34. 2. The statute of limitations prescribed by the Code, (§ 2476,) does not govern the case, because only four years OF ALABAMA. 555 Bedell's Adm'r v. Smith. intervened between the adoption o£ the Code and the commencement of the suit. — Henry v. Thorpe, f4 Ala. 103; Rawls v. Kennedy, 28 Ala. 420. The act of 1802 (Clay's Digest, 327, § 81) does not include penal bonds conditioned for any thing else than the payment of money. Williams v. Talbot, 16 Tex. 1 ; 7 Johns. Ch. 556 ; 1 Saun- ders, 38 ; 17 Johns. 165 ; 33 l'enn. St. R. 435; 2 Martin's La. (N. S.) 545 ; 4 Texas, 159 ; 16 Arkansas, 122 ; 21 Bar- bour, 351. 3. If the statute of limitations be applicable to the case, the repeated promises of the intestate would prevent its operation. — Evans v. Carey, 29 Ala. 99; 30 Vermont, 262; 14 Geo. 661; 8 Rich. (8. C.) 113. 4. The admissions of the defendant and her intestate, having been acted upon by the plaintiff, were' not only competent evidence, but might amount to an estoppel. Garrett v. Garrett, 27 Ala. 651; Gwynn v. Hamilton, 29 Ala. 232. 5. The deed to Hugely could have nothing to do with the case, because the land conveyed by it was not the land mentioned in the bond ; and because, if the land had been the siime, the grantor had no title to it. A. J. WALKER, C. J— [June 18, 1861.]— The declara- tion was not objectionable, for the want of ah avermeat of the tender of a deed to be executed by the defendant's intestate; because it shows that the vendor had no title, and also that he refused to make a title, when requested, for the reason that he had none. The law does not re- quire the useless ceremony of the preparation and tender of a deed under such eireunistanees. — lohnson v. Collins, 17 Ala. 318 ; Garnet* v. Yoe, ,/,. 74. The plaintiff' had a right of action as soon as the coudition of the bond broken b} a failure t< j •; it was not necessary that there should have been an eviction of the plaintiff before the action was brought ; and, of course, an averment of such i . in the declaration was not indispensable. Havii ■ thus found the only two objections to the declara- tion urged in this court to be untenable, we decide that CTRT I's Adtn'r v. Smith. on. leclarations of the defendant and her in r . •v. both :i refusal >»n the pai i make title, and an inability rbieh wera important facts in this that m, and probably for other reasons, tl 'Ions tie evidei [8.] The plaintiff's cause of action accrued before the tit into operation, and is statute of limit ire that time.-^Pamphlct I, j>. 71 ; Martin v. Martin, 85 Ala. 560. h: the law ting at the time when tl went into operation, there was n<> Btatute of limitati lioable to a suit upon a peual bond, conditioned Tor the discharge of a duty, and not for the payment of money. The b ... which prescribes a limitation of sixteen yean, in- clude* only action- upon leasee under soal, single or penal lulls for the payment of money only, obligation* with [ition for the payment of money only, and awards under the seals of arbitrators for the payment of mouey only. — Clay's I> ; 31. A bond conditioned, as is the one here in suit, to make a title to land, is obvi- ously not a cause of action embraced within that statute. It rc.-uks. that there was uo error in any ruling of the court adversely to the defense of the statute of limita- tioi \-\.\ We think the court erred in excluding the deed offered in evidence. The purpose of its offer was to Bhow the acceptance of an act as a compliance, pr with the condition of the bond ; and we think it ought to have admitted in evidenoe, in connection with proof oj its being made at the request of the plaintiff, and of its acc.j.tanee by him. as a compliance with the condition of the bond yro Oatto. It is true, parol evidence was not ad- miaaikle, to Bhow the mistake in the description ofthe land. Such evidence would only be admissible in a direct pro- ceeding tor the. reformation of the deed. The deed of- fered iu evidence contains a warranty of title, Uponwbieh OF ALABAMA. Stubbt ini'r. the grantor would b giving of tliis deed, with ;i covenant of warranty, although the grantor may have had no title to the land described in it v a valuable consideration t<> Bapporl the plain! at to accept it as a complianc . with the condition of the boti n of \tpro tanto ; and thai agreement, being tl dbya valid ■ ration, must I" 1 upheld. If it w< suit that, while the dt fen clan t wonld be denied I h of it in this suit, she mighl be held responsible at tl:' of the third person, in whose favor the deed waa m for a breach of warranty. Ii I, the would not be changed. The warranty in it would still be a valuabl i for its acceptance as a faction of the bond; and it would be most bnrea . that the defendant should be deprive the ': f the partial tion,aud still held under ►risibility to a third j erton, upon the deration of the agreement that it partial compliance with the bond. nk there is any thing in the point that not in the name of the proper party plaintiff. d. LDM'R. hi« in.«ol . had col- ' S riMiKV RT Stnl>!..* v. \ilm'r. lected the money on \)xe note, and of his promise to pay it. | tenl evidence !'■»• the creditor. 2. Duty and liability of attorney. — An attorney, receiving a njT'« right to commisttonifor exi cution of process regular on its/ace, h\ii -A sheriff is not entitled, as against the sndanl in execution, to retain his commissions out of the pro- ceeds of the sale of property under an execution regular on its face, but issued on a judgment which is void on account of die in- competency of the presiding judge; although the statute (< $ 2"J> 1 | protei I bin in the execution of BUch proet Appeal from tic Circuit (^ourt of Shelby. Tried before the Eon. -Iamis B. Martin. This action was brought by John P>. Wilson, again at Henry J. Sawyer, I -urn of about g ! 560 SUPREM E COURT Wilson v. Sawyer. money retained by the defendant as his commissions, as" sheriff, on the sale of property under an execution against the plaintiff'; and -was commenced on the 13th August, 1860. The execution was issued, on the 13th March, 1858, on a decree rendered by the probate court, on the 9th March, 1858, in favor of Martha J. Wilson, against the plaintiff; went into the hands of the defendant, as sheriff of the county, and was by him levied on the plain- tiff's property ; and the property was sold, under said execution, in July, 185S, and brought about $8,500. The decree of the probate court, on which said execution issued, was reversed by this court, at its June term, 1860, (before the commencement of the present suit,) and the cause remanded; the reversal being placed on the ground, that the decree was void on account of the incompetency, from interest, of the probate judge before whom the pro- ceedings were had. — See the case reported in 36 Ala. 655* All the facts of that case, as shown by the printed report, were in evidence, and were admitted to be there correctly stated ; 'and it was agreed, that the report might be con- sidered a part of the bill of exceptions. It was further admitted, ''that said execution was regular on its face in all respects." This being all the evidence, the court in- structed the jury, if they believed the evidence, to find for the defendant; to which charge the plaintiff excepted, and he now assigns the same as error. Alex. & Jno. White, for appellaut. S. & J. T. Leiper, contra. R. W. WALKER, J.— [June 19, 1861.]— The question presented by this record is, whether a sheriff, who has sold property under aji..fa. regular on its face, but issued upon a judgment which was void, because the judge was incom- petent to try the case, (Code, § 560 ; Wilson v. Wilson, 36 Ala. 655,) is entitled, as against the defendant in the execution, to retain his commissions out of the proceeds of the sale. The Oode provides, that "whenever it appears that the OF ALABAMA. 561 Wilson v. Sawyer. process is regular on its face, and is issued by the compe- tent authority, a sheriff, or other ministerial officer, is justified in tire execution of the same, whatever may be the defect in the proceeding on which* it was issued." — Code, § 2284. This section was designed to give legisla- tive sanction to the just and salutary rule, adopted by some courts independently of legislation, that ministerial officers are not responsible for executing an}' process reg- ular on its face, if the court from which it issues has i^an- . eral jurisdiction to award such process, although il had not jurisdiction in that particular case. — See Rogers v. Mullincr, 6 Wend. 597; Lewis v. Palmer, ib. 367; Sava- Co61v.Boughton,5Wend. 170; Coon v. Cougden, 12 Wend. 496; People v. Cooper, 13 Wend. 379, \384-; Noble v. Holmes, 5 Hill, 194; Peopie v. Warren, 5 Hill, 440; Watson v. Watson, 9 Conn. 140; Jones v. Hughes, SSerg. & R. 299; Forward v. Marsh, 18 Ala.* 645, 648 ; Clarke v. May, 2 Cray, 410 ; 3 Phil. Ev. (C. k II. notes, ed. 1843,) pp. 990, 107-8-9, 1078. But the rule which justifies an officer, who acts under process apparently regular, though really void, is one of protection merely. "It la a shield, but not a sword. The officer, when sued, may defend under such process; but he cannot build up a title upon it, which will enable him to maintain actions against third persons." — Ilorton v. Ilcndershott, 1 Hill, 118; Sturbridge v. Winslow, 21 Pick- 83, 87. The execution in this case, though regular upon its face, was in fact void, and, in the very nature of tilings, no right can arise out of it. The statute exempts the sheriff from responsibility; hut it was not designed tore- ward or compensate him for executing such process. It would be most unjust, indeed, t<> take the property of a oitizen to pay for the execution of proc< inst him which was issued without authority of 1 aw. The principle is a sound one, that "noright can lie derived tmin an un- lawful act, in favor of a sheriff who <]i>r> the unlawful act.'' (Collier v. Windham, 27 Ala. 29-1 ;) and hence we conclude, that where thejudgnieut is void, the sheriff is not entitled 562 SUPREME COURT Smith v. Johnson. to commissions tor executing the Ji. fa. issued upon it. — See Nowlin v. McCallcy, 31 Ala. 682. Judgment reversed, and cause remanded/ SMITH vs. JOHNSON. [PROCEEDING BEFORE PRORATE COURT FOR ASSIGNMENT OF DOWER.] 1. Validity of contract contravening policy jof public land-laws. — A con- tract between A and IJ, by which it is agreed, that the former shall enter a tract of land, under the graduation act of 1854, (10 U. S. Statutes at Large, 574,) in his own name, but for their joint use and benefit, anfl that the latter shall furnish the purchase-money, — being in contravention of the policy of that statute, as indicated by the affidavit required of the party making the entry, is illegal and '■void. 2. Specific performance of illegal contract. — A court of equity will not decree the specific execution of a contract which is illegal and void, because in contravention of the policy of the public land- laws, although the parly asking it is in possession of the land, and has made valuable improvements. 3. When probate court may assign flower. — In proceedings before the probate court for an assignment of dower, (Code, \\ 1300-7:2,) it is no defense to the application, that the lands in which dower is sought, and of which the decedent died seized and possessed, are in the possession of a third person, who claims an undivided half interest in them, under a contract between him and the decedent, by which it was ngreed, that the latter should enter the lands, under the graduation act of i 85 I. in his own name, but for their joint use and benefit, and with money furnished by the former: such con- tract being illegal and void, the person in possession is not an alienee of the decedent, and the fact that he has made valuable improvements on the land does not take away the jurisdiction of the probate court. Appeal from the Probate Court of Barbour. In the matter of the petition of Mrs. Anna E. Smith, formerly the widow of Emanuel Johnson, deceased, for OF ALABAMA. • 663 Smith v. Johnson. an assignment of her dower in the lands of her said de- ceased husband. The decedent died on the 14th Febru- ary, 1856, and the petition was filed on the 6th April, 1859. William W. Johnson, who was the administrator and brother of the decedent, and who had possession of the lands in which dower was sought, contested the petitioner's right to dower ; contending that the decedent had aliened to him an undivided half interest in the lands, and that therefore the probate court had no juris- diction to assign dower to the petitioner ; and pleading the statute of limitations of three years. It appeared on the hearing of the petition, as the bill of exceptions shows, that the decedent entered the lands, at the land-office in Elba, at twenty-live cents per acre, under the act of con- gress approved August 4, 1854, commonly called the "graduation act"; that the purchase-money, with which the entry was made, was furnished by the contestant; that the entry was thus made, and the purchase-money thus furnished, in pursuance of a verbal contract between the decedent and the contestant, by which it was further agreed, that the entry was to enure to their joint use md benefit, — each party to have one half of the land. It fur- ther appeared, that the decedent, after entering the land, deposited t he certificates of entry with Mrs. Sarah Johnson, who was the mother of' himself and the contestant, "re- questing her to keep them for himself and \Villiam until the lauds should be divided, and stating, at the same time, that one half of the lands belonged to said William"; thai in ilv afterwards disclaimed the absolute ownership of the land, and admitted that one half of it belonged to the Contestant; that he and the contestant jointly occupied, cultivated, and improved the land, up to the time of his (hath; that the contestant then con- tinued in the possession, cultivated and improved the Uud, by clearing, erecting fenw ind returned one half of it in his inventory, as administrator of the d and that the land had never been divided between them, nor other- 1 of. On tl -, the probate di 564 .• BFPREME COURT Smith v. Johnson. the petition; and its judgment thereon, to which the petitioner excepted, is now assigned as error. . J. Buford, for appellant. — It is against public policy that lands shonjd be entered, under the graduation act, by one person for the use of another ; and the party mak- ing the entry is required by the statute to make oath to the contrary. — Dunlop's Digest II. S, Laws, 1442. The alleged contract between the decedent and the contestant, being against public policy, was illegal and void, and \vou\d not be specifically enforced by a court of equity. — Dial v. Hair, 18 Ala. 7H8 ; Evans v. Kittrell, 33 Ala. 440; Story on Contracts, §§ 545, 569, 581, 615 ; Story's Equity, §§ 751, 769. As the contestant had neither a legal title to the land, norsuch an equitable interest as might be enforced in chancery, he cannot be considered an alienee or purchaser from the decedent, within the contemplation of section 1369 of the Code. Pugh & Bullock, contra. — If the coutract between the decedent and the contestant, and the partial performance thereof, as disclosed by the evidence, amounted to a valid alienation of the laud, the petition was properly dis- missed — 1st, because the court had no jurisdiction ; and, 2d, because the statute of limitations was a complete bar. Code, §§ 1369, 1372 ; Session Acts 1857-8, p. 47 : 23 Ala. 616. The payment of the purchase-money, possession under the contract, the erection of valuable improve- ments, and the continued admission, by word and deed, of the contestant's title, take the case out of the opera- tion of the statute of frauds. The only question, then, is, whether the validity of the contract is affected by the graduation act, under which the entry was made. Bat, if the contract be void, as being contrary to the provis- ions or policy of that statute, then the entry also is void, and the petitioner has no title. T.he contestant has pos- on, and relies on the maxim, jiotior est conditio possi- dentis ; and the petitioner cannot assail his title, without at the same time destroying her own. OF ALABAMA. 565 Smith v. Johnson. A. J. WALKER, C. J.— [June 17, 1861.]— All the ob- jections made to the appellant's petition, rest, as their basis, upon the ground that the appellee was apurehaser from the appellant's former husband, of a moiety of the land in which dower is claimed. The purchase is claimed to have resulted from a contract made between the ap- pellant's deceased husband and the appellee, that the for- mer should enter the land, under the act of congress entitled, "an act to graduate and reduce the price of the public lands to actual settlers and cultivators," and that the appellee should furnish the entrance money ; which contract was followed by an entry of the land, in pursu- ance of it, with money supplied by the appellee, and the subsequent joint occupation and improvement, by the deceased and the appellee. This contract, being parol, was within the statute of frauds. — Ilenly v. Brown, 1 St. 144; Kizer v. Lock, 9 Ala. 2Gf). From this it results, that the appellee could have acquired by the agreement, the payment of money according to its terms, and the subsequent improvement, a right to go into equity for a Specific performance of the parol contract; which right might be denominated an equitable title to the land, if, under the facts, a court of equity would have granted the specific performance. It follows, that the entire ques- tion, whether any right to the land ever vested in the appellee, depends upon the sufficiency of his claim to a specific performance in a court of equity. [1.] The third section of the graduation act of con- gress, ;ibovc referred to, requires, as a preliminary to the entry of land under it, an affidavit of the applicant, that lie enters the same for his own use, and for the purpose of actual settlement ami cultivation, or for the use of an adjoining farm or plantation owned or occupied by him ; and that, together with the entry, he has not acquired from the United State-, under the provisions of the act, more than three hundred and twenty acres, according to the established survi j s. — 10 U. S. Statutes at Large, 574. The agreement above se1 forth comes directly within the inhibition contained in the affidavit required, and would 566 __ SUPREME COURT Montgomery & West Point Railroad Company. be illegal and void, upon the principles settled in Tenni- eon v. Martin, (13 Ala. 21,) Hudson v. Milner, (12 ib. 667,) and Dial V. Hair, (18 Ala. 798.) [2.] Because the contract is illegal and void, a court of equity would not compel a specific performance of it, notwithstanding the party seeking the specific perform- ance might be in possession.— Dial v. Hair, supra. It ia a maxim, that in pari delicto potior est conditio possidentis. But this maxim was never designed to infringe the prin- ciple, that the courts will not aid in the enforcement of a contract violative of the law. In this case, the appellee seeks to set Up an illegal contract, for the purpose of showing an equality of fault in the making of such con- tract, in order that he may obtain the benefit of it. [3.] As there was no contract by which, either in equity or at law, any right vested in the appellee, it can not he said that there was any alienation by the deceased, or that the appellee was an alienee. The entire defense, upon which the appellant's petition was resisted, is untenable ; and therefore the decree of the court below is reversed, and the cause remanded. DOUGLASS vs. MONTGOMERY & WEST POINT RAILROAD COMPANY. [ACTIOS AOAINST RAILROAD COMPANY, AS COMMON CARRIER, FOR NEOLI OENCE.] 1. When nonsuit, with hill of exceptions, may he taken. — A nonsuit may be taken, with a bill of exceptions, (Code, ? 2357,) in consequence of the suppression of the plaintiff's deposition, on motion, before the trial is entered upon. 2. (o7n.pde.nci/ of. plaintiff, in action against common carrier, to prove con- tents and value oj lost baggage. — In an action against a railroad com pany, as a common carrier, to recover damages for the loss of a Of ALABAMA. 567 Douglass v. Montgomery & West Point Railroad Company. passenger's baggage, the plaintiff may prove the contents and value of his trunk by his own oath. o. When deposition of "patty may be taken* — When a party is competent to testify in his own favor, his deposition may lie taken, as in case of other witnesses. AppbAl from the Circuit Court of Montgomery. Tried before the Hon. S. I>. Hale. Tuts action was brought by Jules Douglass, against the Appellee, as a common carrier, to recover damages for the loss of the plaintiff's baggage while traveling on the de- fendant's railroad between Montgomery, Alabama, and Columbus, Georgia. When the cause was called for trial, as the bill of exceptions states, and the plaintiff had an- nounced himself ready, the defendant submitted a motion to suppress the plaintiff's deposition, (which had been taken on interrogatories and cross-interrogatories,) on the grounds — •" 1st, that there is no law authorizing the taking of the deposition of a party plaintiff; and, 2d, that the plaintiff was not competent to testify in his own favor*.'' At the time of filing cross-interrogatories, the defendant had also objected to the taking of the deposition, "on the ground that the law does not authorize the plaintiff* to be examined, to prove the correctness of his demand, in a suit against a corporation." The plaintiff then showed to the court, that he resided in [the city of Baltimore, Maryland, which was more than one hundred miles from Montgomery, and that his deposition had been taken on that account; and stated, that he only proposed to read in evidence so much of his deposition as tended to prove the contents and value of his lost baggage, and to make out the rest of his case by evidence aliunde. The court sustained the defendant's motion, and refused to allow the plaintiff to use any part of his deposition for any pur- pose. The plaintiff excepted to this ruling of the court, and, in consequence thereof, at the next term, took a nonsuit; and he now assigns said ruling as error, and moves to set aside the nonsuit. 5C,$ SUPREME COURT lass v. Montgomery & West Point Rnilroad Company. W. A. Gunter, tor appellant. — On principles of public policy and necessity, the plaintiff, in an action against a common carrier for negligence, may prove the contents and value of his lost baggage by his own oath, after estab- lishing the delivery and loss by other competent testi- mony. — 1 Greenl. Ev. §§ 82,348; Herman v. Drinkwater, 1 Greenl. Rep. 27; Clarke v. Speuce, 10 Watts, 335; Gilmore v. Bowdcn, 3 Fairf. (Me.) 412 ; 1 Yeates, 34; 2 Watts & Ser. 369; 3 Ban-, 451; 10 Barr, 45; Story on Bailments, § 454, note 4; 2 Smith's Leading Cases, (II. & W.'s Notes,) 131. 2. If the plaintiff, being present, was competent to tes- tify for himself, his deposition might be taken as in case of any other witness. — Moore v. Hatfield, 3 Ala. 442. GoLDTiiWAiTE, Rice & Semple, contra — 1. Section 2357 of the Code authorizes a nonsuit, with a bill of exceptions, only from decisions. made "on the trial of a cause;" that is, after the trial has begun. That this statute is to be strictly construed, see Palmer v. Bice, 28 Ala. 430. In this case, the motion to suppress the deposition was made, as the statute (Code, § 2328) requires it should be made, "before entering on the trial;" aud the nonsuit was taken at the next term. 2. The plaintiff was not competent to testify in his own favor. — I Greenl. Ev. (7th ed.) § 348, note 4; Snow v. Eastern Railroad Co., 12 Metcalf, 44. 3. If be was competent, there is no statute authorizing his deposition to be taken. Section 2318 of the Code applies only to witnesses, and does not include parlies. STONE, J.— [June; 18, 1861.]— It is urged by appellee that, inasmuch as the decision of the circuit court, which, is sought to be reviewed, was pronounced on a motion made and heard before the trial was entered upon, the case is not within the provisions of section 2357 of the Code, which applies only to decisious of the court made on the trial of a cause. The argument is not defensible. Section 2353 of the Code confers the power of reserving, OF ALABAMA. 569 Douglass v. Montgomery & West Point Railroad Company. 'by bill of exceptions, "any charge, opinion, or decision ■of the court, which would not otherwise appear of record."' Yet this section contains almost, the identical words which are found in section 2357. Its language is, "Either of the parties in any civil case, during the trial of the cause, may reserve by bill of exceptions," &c. If we were to confine the operation of section 2357 to decisions pro- nounced on the final trial, by the same rule we would be required to limit the operation of section 2353 to charges, opinions, and decisions, made during the trial in chief. Yet it is the universal practice, sanctioned by repeated decisions ot this court, to reserve by bill of exceptions questions arising on decisions pronounced in the prepar- atory stages of the suit, provided those decisions bear on the final result; and questions thus reserved are reviewed in this court. — Shepherd & Gordon v. Spriggs, 29 Ala. 673; Peavey v. Burket, 35 Ala. 141. We place the same construction on each cited section of the Code, and hold that we will consider of I he question. [2.] The main question in this cause has not before been considered in this court. We confess that, what- ever rule we may declare, we perceive probable hardship and injustice in Us application. Corrupt men may per- vert the privilege of being witnesses in their own causes, to their personal profit; while, on the other hand, to deny to a party the right of testifying in a case like the present, is almost the equivalent of withholding from the travel- ing public all remedy for losses of their baggage. As we said on a former occasion, the "result of the introduction of steamboats mid railroads is, that common carriers have, great extent, taken exclusive possession of the public thoroughfares of the country." — Steeled Burgess v. Town- send, at the last term. So, we may add, that railroads and steamboats have almost a monopoly of the public travel on their respective routes. The traveler is under tumoral necessity to accept the car or the boat's cabin; ami it is part and parcel of that necessity that he shall submit his valuables to the carj and control of the em- ployees of such public lines of conveyance. To require of 37 '0 SUPREME COURT Douglass v. Montgomery it West Point Railroad Company. a traveler, whose baggage has been lost while in transit on a railroad, that, the loss being established by other testimony, ho shall also prove by disinterested witni each article of his wardrobe and its value, is simply to de- clare railroads cannot beheld accountable for their faults and breaches. of contract, because of a defect in the law. We arc aware that, in the case of Snow v. Eastern Rail- road Co., (12 Mete. 44,) the supreme court of Massachu- setts, in a case like the present, excluded the evidence of the plaintiff; holding, that the rule only applied where the defendant, or the employees of the defendant, had been convicted by other evidence of an act of spoliation, or of felony. But the authorities explode this distinction. In a case against a common carrier before Montague, B., "a question arose about the things in a box; and he de- clared, that that this was one of those cases where the parly himself might be a witness propter veccssi/aton rci. For ovciy one did not show what he put in his box." — 12 Viner's Abr. 24, pi. 34. Mr. Greenleaf says, "Such evidence is admitted, not solely on the ground of the just odium entertained, both in equity and at law, against spoliation, but also because, from the necessity of the case and the nature of the subject, no proof can otherwise be expected: it not being usual even for the most prudent persons, in such cases, to exhibit the contents of their trunks to strangers, or to pro- vide other evidence of their value. For, where the law can have no force hut by the evidence of the person in interest, there the rules of the common law, respecting evidence in general, are presumed to be laid aside ; or rather, the subordinate are silenced by the most transcen- dent and universal rule, that in all cases that evidence is good, than which the nature of the subject presumes none better to be attainable." — 1 Greenl.Ev. § 348, and authori- ties cited. See, also, Cow. k Hill's Notes to Phil. Ev. (3d ed.) vol. 1 of Notes, 56-7 j and authorities on appellant's brief. We hold, that the plaintiff was a competent wit- to testify of the contents of bis trunk, and the values of the several articles. OF ALABAMA. 571 Taylor v. Strickland. [3.] Having ascertained that the plaintiff was a com- petent witness to testify in his own behalf, to the extent to which his testimony was offered, the right existed to take his testimony by deposition, as in case of other wit- nesses.— Code, § 2318; Moore v. Hatfield, 3 Ala. 442. Judgment (if the circuit court reversed, nonsuit set aside, and cause remanded. TAYLOR vs. STRICKLAND. [▲CTIOt) ON PROMISSORV NOTE, IiY ASSIQNKE AGAINST MAKER.] 1. General objection to deposition. — A separate objection to "each sen- tence of each deposition," is nothing more than ageneral objection to each deposition ; and if each deposition contains some legal evi- dence, such objection may be overruled entirely. 2. Mistake in payee's name in note. — When a promissory note is, by mistake, made payable to Aaron Forviey, instead of Aaron Furvihy,. the latter may sue upon it in his own name, alleging that it was made payable to him by the name therein inserted, and may prove on the trial, by parol evidence, that he was the person intended ; and bis assignee may sue in like manner, making the same aver- ments and proof. (Overruling Gayle v. Hudson, 10 Ala. 11(5.) Appeal from the Circuit Court of Randolph. Tried before the lion. James B. Martin. Tnrs action was brought by "Wilson Strickland, against Jesse R. Taylor; and was founded on a promissory note,, of which the following is a copy: " On or before the 1st January, 1858, I r as trustee for Alary Ann Taylor and Eliza Ann Taylor, promise to pay Aaron Foriney, or bearer, four hundred dollars, being balance of purchase-money -for land DMf Rock Mills, in Randolph county, Alabama, value received, September 20, 1866/' Signed) "Jesse R. Taylor." 572 SUPREME COURT Taylor V. Strickland. The amended complaint contained two counts; the first describing the note as payable to Aaron Fonmbj, and alleging that it was the prop'erty of the plaintiff; and the second averring, that it was made payable to Aaron Formby, by the name of Aaron Formey. The defendant demurred to the amended complaint, "on the ground that the note therein specified cannot be sued on, and a recovery had thereon in a court of law, before said note is reformed in a court of chancery" ; and his demurrer being overruled, he pleaded the general issue, with leave to give any special matter in evidence. On the trial, as the bill of exceptions shows, wheu the plaintiff offered to read to the jury the note above copied, the court excluded it on the defendant's motion. The plaintiff then offered said note in connection with the depositions of several witnesses, who testified, in substance, to a sale of land by Aaron Formby to the defendant, and the execution of a note for $400 by the latter, for a part of the purchase-money. The de- fendant "objected separately to the depositions of each of&ttid witnesses, and also objected separately to each sentence of each deposition, and also objected separately to the reading of said note as evidence." The court over- ruled each of these objections, and allowed the note and depositions to be read to the jury ; and the defendant excepted. The court charged the jury, "that, if the note sued on was made 1ry the defendant, payable to Aaron Formby, by the name and style of Aaron Formey, and delivered to him, then the plaintiff was entitled to recover; and that, in determining whether said note was made payable to Aaron Formby, by the name of Aaron Formey, they might look to any evidence showing a sale of land by said Aarc* Formby to said defendant, at the time said note was gr^en, if there was any such evidence before them." The defendant excepted to this charge, and requested the court to instruct the jury, that they could not find for the plaintiff, although they might believe all the evidence in the cause, and although they might believe that the OF ALABAMA, 573 Tavlor v. Strickland. name of Aaron Formey was inserted in the note by mis- take, instead of Aaron Forniby. The court refused these charges, and the defendant excepted to their refusal. The several rulings of the court on the pleadings and evidence, the charges given, and the refusal of the charges asked, are now assigned as error. IIeflin & Forney, for appellant, cited Oayle v. Hud- son, 10 Ala. 116; Minis v. Flournoy, 17 Ala. 36 ; Mims v. Snorter's Adm'r, 18 Ala. 655 ; 1 Story's Equity Jar. §§ 164-5. J. Falkner, contra. R. W. WALKER, J.— [July 11, 1861.]— The objection "to each sentence of each deposition" was nothing more than a general objection to each deposition ; and as each deposition contained some legal evidence, the objections were properly overruled. — Milton v. Rowland, 11 Ala. 732; Donnell v. Jones, 13 Ala. 490. [2.] It is well settled, that though a promissory note, or bill of exchange, be drawn payable to a person in a wrong name, the error will not affect his title, nor destroy his right to transfer the paper. And if a note be made to a person by a wrong name, the payee may sue upon it in his right name, alleging that the note was made payable to him by the name therein inserted, and he may show by evidence on the trial that he was the person intended. In like manner, where the suit is by an endorsee or trans- ferree of a note purporting to be payable to Aaron Formey, and the complaint avers a promise to pay Aaron Formby y by the name of Aaron Formey, the plaintiff may show by evidence that Aaron Formby was lhe person really meant. Willis v. Barrett, 2 Starkie's R. 29 ; Moller v. Lambert. 2 Campb. 548; Leaphardtv, Sloan, 5 Blackf. 278 ; Medway Co. v. Adams, 10 Mass. 360; Sterry v. Robinaon, 1 Day's R. 11; New York A f. 8oc. v. Varick, 13 Johns. 38 : Pat- terson v. Crave?, 5 Blackf. 593; Jester v. Hopper, > s Kng. 43: Leonard v. Nelson, 2 Cr. & M 689 ; Bylcs on Mills, m. p. 60 ; Chitty on Bills, (Am. ed. 1854, by Perkfos,) .574 S UPREME COURT Jones v. Jones' Executor. m. pp. 154, 5<5l, 566, 625; Edward* oh Bills, 251, 685; 1 Starkie's Ev. 472; Angell Corp. §234. See, also, May v. Hewitt, 33 Ala. 166; Alabama Coal Co. v. Brainard, 35 Ala. 476. It follows, that there was no error in the several rulings of the court here complaiued of. We will not now inquire whether the decision which was made in Gayle v. Hudson, (10 Ala. 116,) is consistent with the rule we have just laid down. Unless there, is something in the nature of the instrument there Biied on, the state .of the pleadings, or the other facts disclosed, which distinguishes that case from this, and renders inap- plicable the rule above declared, that decision cannot be sustained as a correct exposition of the law. Judgment affirmed. JONES vs. JONES' EXECUTOR. [bill in' equity by executor, tor construction of will, and 3ettli- ment of Estate.] 1. Lapsed legacies; statutory provisions. — Under section 1605 of the Code, a legacy or devise to a child or other descendant of the tes- tator, who dies before the testator, leaving children or other de- scendants who survive the testator, does not lapse, and does not Vest in the administrator of the deceased legatee or devisee, but passes directly to his children or other descendants, in the same proportions as if they took as his heirs-at-lavT or distributees ; and his widow takes no interest in it. 2. Emancipation act of I860 not retroactive. — The act of February 25, I860, "to amend the law in relation to the emancipation of slaves,"' (Session Acts 1859-60, p, 28,) does not affect wills which had been admitted to probate before its passage. Appeal from the Chancery Court of Dallas. Heard before the Hon. James B. Clark. The bill in this case was filed by the executor of the OF ALABAMA. . r ,7f> Jones v. Jones' Executor. last will and testament of Edward S. Jones, deceased, against the widow, devisees and legatees of said testator and the widow, children, and personal representatives pi Richard Jones, deceased; and sought a judiehd construc- tion of the testator's will, and a settlement of his estate. The testator died in Dallas county, where he resided, in December, I808. By his will, which was executed in March, 1858j and admitted to probate in December, I said testator devised and bequeathed the greater part of his estate, both real and personal, to his only son, Rich- ard Jones; and made provision for the emancipation of Severn! slaves, directing their removal to a non-slave bo I dr ing State, and the payment of a pecuniary legacy to each of them. Richard Jones died, intestate, a few weeks be- fore the testator, leaving a widow and two infant children as his hei'rs-at law and distributees. The testator's widow dissented from his will; and her share of the estate was allotted to her in this suit, without objection from any of the other parties. The chancellor held, that the legacy and devise to Richard Jones, under section 1605 of the Code, did not lapse b} his deatli before the testator, and did not pass directly to his children, hut vested in his ad- ministrator, to be administered and distributed by him under the statute regulating the distribution of iu estates; and this part of the chancellor's decree is here led as error by the children. K. W". Phttos, for the appellants.— Section 1005 of the Code was designed to promote equality in the distribu- tion of estates. The evil to be remedied was, that where a testator directed his property to be divided equally be- tween his two children, the law would carry the direction into effect, if both the, children survived him; but, if one of the children died before the testator, the surviving child would take three-fourths of the whole etifate, (that ie-half under the will, and one fourth under the Stat* uteof distribution,) while the descendants ot the d< ceased child would take only the remaining fourth. But it was no part of the object of the statute to provide tor the wi- 576 SUPREME COURT Jones v. Jones' Executor. 7. Our statute departs from the tenor of the English statute, where the clause prohibiting the lapse ends. It omits the emphatic decla- 578 SUPREME COURT Joftes v. Jones' Executor. ration of the English statute, as to the manner in which the devise or legacy shall take effect; hut, in the place of it, Bays, that the legacy or devise shall vest in the de- scendants left by the legatee o? devisee, as if such, devisee or legatee had survived the testator and died intestate. This variance from the language and departure from the tenor of the English statute, forbid that we should take the construction of it as our guide. The legacy or devise, under our statute, must vest in the descendants of the devisee or legatee, and it must vest as if the devisee or legatee had survived the testator', and died intestate. The legacy or devise must vest in the persons named, and it must vest as if the specified contingency had occurred. Can we find an harmonious effect for hoth these require- ments of the statute? We do not accomplish that object, if we make the descendants of the legatee or devisee take under sueh legatee or devisee as heirs or distributees. If the descendants so take the personal property, a legacy would not vest at all in the descendants of the legatee, hut would vest in his administVator, for the purposes of the administration, and the descendants would only re- ceive any residuum, which, upon the settlement of the administration, might be for distribution. — Reese v. Har- ris, 27 Ala. 301. The law would cast the title upoa the administrator; and thus the legacy would, in fact, vest in the administrator, in contravention of the expr< ss com- mand ol tht; statute that it should vest in the descendants of the legatee; and if the estate should be insolvent, tfeiB descendant would he denied even a remote-, be nefit from property which the law declares shall be vested in him. It is apparent that such a view of the law would impair the force of one of its features, and in some cases utterly destroy the effect of that feature. On the other hand, we think the words, "as if such devisee or legatee had sur- vived the testator, and died intestate," have an office as- signed them* perfectly consistent with their import, if we understand them as laying down a rule for dividing the property among the descendants. It vests in them as if the devisee or legatee had died, intestate, after the testa- * OF ALABAMA. 679 Jones v. Jones' Excutor. tor; that is, it vests in them in such shares or propor- tions as if the property had come to them as heirs and distributees of the legatee or devisee. This construction of the statute, doing violence to none oi its words, al- lows an harmonious operation to all its parts. For these reasons, we adopt it, and decide, that the children of Richard Jones must, as devisees or legatees of the testator, take the property, real and personal, bequeathed to said Richard, to the exclusion of Richard's widow and admin- istrator. Our conclusion in this case is also sustained by the Pennsylvania and Kentucky decisions in reference to a somewhat, similar statute, collected on the brief of the appellant's counsel. Descendant, in the statute which we have been construing, can not be understood to include the widow of the legatee or devisee. The natural signi- fication of the word is not broad enough to embrace the widow, and there is nothing in the context, to force upon the word a meaning differing from its natural import. [2.] The act of 2oth February, 18G0, entitled "an act to amend the law in relation to the emancipation of slaves, - ' does not affect the bequest in the will of F.dward S. Jones, in relation 'to the emancipation of slaves. — Acts 3. That will became effectual, at least, upon its admission to probate; and as it was admitted to pro- bate the passage of the act above named, it is ex- i from the operation of that act by the 5th section. — Hall's Heirs v. Hall's Executors, at this term. \Vvd> not notice in, this opinion any other question 1 bv the assignments of error, because no other ques- tion i ''d bv the counsel, either in oral ar- gument, or in tin* hr R and remanded. 580 SUPREME COURT McQ-ehee v. Rump. McGEHEE vs. RUMP. [action for breach of warranty of soundness of slave.] 1. Admissibility of parol evidence to affect bill of sale. — If the parties to a contract, for the sale or exchange of two slaves, recijxrocally ex- ecute to each other bills of sale, which show on their face that the transaction was a sale ; and an action is afterwards brought on one of those bills of sale, to recover damages for a breach of the war- ranty of soundness contained therein, — parol evidence is admis- sible, to show that the contract was in fact an exchange, and not a sale. 2. Difference between sale and exchange ; validity of sale of slave by un- licensed negro-trader. — A contract for the exchange of two slaves, of unequal values, is not converted into a sale, by the payment of a sum of money for the difference of value, and the insertion of a money value as the consideration in tho bill of sale; and on the other hand, if the transaction was really a sale of one of the slaves, whicli was void by statute, (Code, \\ 309, 400,) because the vendor was an unlicensed neuvo-tiader, the acceptance of another slave, in part payment of the price, could neither change the nature of the contract, nor render it valid. Appeal from the Circuit Court of Macon. Tried before the Hon. Nat. Cook. This action was brought by Allen C. McGehee, against James Rump, to recover damages for a breach of war- ranty of the soundness of a slave named Myra, alleged to have been sold by defendant to plaintiff on the 29th Jan- uary, 1854. No pleas appear in the record. On the tiial, as the bill of exceptions shows, the plaintiff read in evi- dence, after proving its execution, the bill of sale execu- ted to him by the defendant, (which is copied in the opinion of the court,) and then adduced evidence tending to show the unsoundness of the slave at the time of the sale. The defendant then read in evidence, after proof of its execution, a bill of sale executed to him by the plaintiff for a slave named Viney, (which is also copied in the opinion of the court,) and proved by one Foster, OF ALABAMA. 581 McGehee v. Rump. who was a subscribing witness to both bills of sale, "that the} 7 were both signed and delivered on the same day, and at the same time; that lie (witness) understood from both parties, at the time, that they had swapped negro girls, and that the defendant gave the plaintiff some $200 differ- ence between the girls." "It was admitted, that the plaintiff, at the time of said trade, was a negro-trader, residing in Columbus, Georgia, and had not taken out a license to sell said girl Viney. This was all the evidence upon the matter, as to whether said trade was a sale or an exchange of slaves. The court thereupon charged the jury, that if said bills of sale were executed at the same time, and were in fact parts of the same transaction, and constituted the transaction, then the contract between the parties was a sale, and not an exchange of slaves; and that the plaintiff could not, by parol evidence, ex- plain or contradict the bills of sale, so as to show that the transaction evidenced by them was an exchange." To this charge the plaintiff excepted, and he how assigus the same as error. Cloiton & Ligon v for appellant, contended — 1st, that the transaction between the parties, as evidenced by the bills of sale alone, was an exchange, and not a sale of slaves ; and, 2d, that if the bills of sale showed the con- tract to be a sale, parol evidence was admissible, to show that it was in fact an exchange; citing the following authorities : Strong v. Gregory, 19 Ala. 146; Ilamner v. Smith, 22 Ala. 433; Saunders v. Saunders, 20 Ala. 710 ; Pollard v. Ma.Jdox, 28 Ala. 321; Ecklesfe Brown v. Car- ter, 26 Ala. .563. Goldthwaite, Rice & Semple, contra, cited Gunter r. Leckey, 30 Ala. 501 ; Ridgway v. Bowman, 7 Cushing, 268; Small v. Quincey, 4 Green!. 497 ; Bradford v. Bush, 15 Ala. 322; West v. K.-lly, 19 Ala. 363; Bishop v. Hampton, 19 Ala. 792 ; Bayard v. Malcolm, 1 Johns. 467 ; Brigham v. Rogers, 17 Mass. 571; Brooks v. Malt- bie, 4 Stew. & P. 06 ; Pay-ant v. Ware, 1 Ala. 160 ; Hair v. LaBrouee, 10 Ala. 548; Spann v. Cole, 13 Ala. 637. 582 PREME O M.t i.'hfo v. Hump. 'ONE, J.— [.Inly !>, IS6I.3 — This record | but n pi-i lion. The plaintiff wm ft negro-trader, liv- ing in the State of Georgia. He instituted suit to rec< of defendant damages for a breach of warranty of sound* ness of a slave named Myra. The defendant's hill of sale is as follows: "Received from Allen C. MfcGehee six hun- dred dollars, for ne:_ r ro girl Myra, twelve years old. The right and title of the said girl I do warrant, ami defend agajf 8t the claims of all persons whomsoever, and warrant sound, and healthy, both in body and mind ; as witness," SO. Ootemporaneoasly with the execution of this hill of sale by defendant, the plaintiff executed to him a bill of sale, as follows: " Received from James Rump a negro girl by the name of Myra, in part payment, and two hundred dollars in money, full payment for a negro girl Viney, thirteen years old. The right and title of the said slave we do warrant and defend against the claims of all pier- sons whosoever, and warrant sound and healthy, both in body and mind; as witness," fee. Both hills of sale were under seal. The trade was made in Macon county, Ala- bama ; and the plaintiff had obtained no license to sell, or to offer said slave lor sale. The defense relied on in the court below was, that the bill of sale on which the action was founded was executed in the purchase of the slave Viney ; and that the sale by plaintiff was void as to him, the seller, under section 400 of the Code. — SeeGun- terv. Leckey, :'.<» Ala. 591. In avoidance of this defense, the plaintiff offered parol proof, tending to show that the real transaction between the parties was an exchange of slaves, and not a sale. The ruling of the circuit court excluded this evidence from tin- jury, and this presents the sole question for our consideration. There arc few questions of evidence on which more has been said, thnn that which seeks to vary by parol the terms of a written contract; and we may add, there are few legal quest ions on which there is a greater con- flict of the authorities. As early as 1823, Ch. J. Tilgh- nian characterized the adjudications on this question as a " wilderness of cases ;" nor has modern jurisprudence OF ALABAMA. 583 >!<•< tehee v. Ramp. blazed a clear path through that wildernejs. We will not attempt the task ourselves, further than may be ren- dered necessary by the wants of this case. There is no repugnancy of decision on the general prop- osition, that parol proof shall not be heard, in a court of law, to vary, enlarge, or diminish the binding obligations of a written contract, as between the parties. In suits on such written contracts, if there be no question of fraud in the execution of t lie instrument, the parties must #and or fall by the evidence they have furnished of their own contract; and what the terms of that contract are, is a question ot law for the court, and not a question of fact for the jury. But, when the question presented is not among the controlling or primary purposes of the writ- ing, but concerns an incident, rather than the direct ob- and aim of the contract, less .stringency of rule has generally been enforced. Here commences the conflict of authorities, which, for the welfare and repose of society, it were well to have reconciled. We think we are in safe bounds, when we assert that, in the advancing history of both England and the most of the States of America, we iver a disposition in the courts rather to relax the rule, than to make it more stringent. The decided weight of the modern authorities, as our after citations will si • thatthe consideration clause of a deed is open to the influence of parol proof, except for two purposes : first, it is oof permissible tor a party to the deed to prove B different consideration, if such change vary the legal effect of the instrument; and second, the grantor in a deed, who acknowledges the re- ceipt meat oftl si ion, will not he alio bydi _;-i.;: t, to 'stahlish a resulting trust in ■ v. < :>} Ala. W9 : h 1.4 Phil. I'.v. (0. * II. N( ition of 18, . The pl pory tht inly not | or dt tinite. I I "ally which if sd com; i d as soon k upon I turnout ; and 581 SUPREME COURT AlcG-ehee v. Rump. quently have also an indirect or incidental effect, which is brought to view by proof of some outside or extrinsic fact. Does the principle include both, or only the first named of these classes of cases ? On principle it would seem obvious, that parties to a deed would have in con- templation the effect of the instrument as a transfer, or muniment of title; and hence, to allow parol proof to vary or add to its provisions or stipulations any term, con- dition, or fact, which would change either the quality of the title conveyed, or the binding covenants of the gran- tor, would let in all the mischiefs which the rule under discussion was intended to guard against. — See Murphy v. Br. Bank, 16 Ala. 90. But both principle and authority, as we conceive, pro- claim a different rule, when the proof offered does not tend to change the covenants, or to vary the title con- veyed by the deed, but simply to repel an inference to be drawn from some extrinsic fact. Such fact is brought to the notice of the court by extrinsic proof, in the absence of which, the deed would be amply operative as a con- tract of bargain and sale. The parties, in drawing their contracts, are not presumed to have had in view these extrinsic facts ; and hence should not be concluded by apparent facts, which, in the absence of the extrinsic fact, have the same legal significance as those which the party seeks to prove. In speaking of the effect of recitals in deeds, Mr. Green- leaf, after enumerating several classes of these recitals, among which is, "the number of tons in a vessel char- tered by the ton," adds — " these are but incidental and collateral to the principal thing, and may be supposed not to have received the deliberate attention of the par- ties." These, he declares, are not within the rule which excludes .pa-rol proof. — 1 Green 1. Ev. § 26. In the notes of Oowen & Hill to Phillipps on Evidence, •the principle is thus stated: "The American cases re- gard the ordinary clause of a deed of conveyance, ac- knowledging the receipt of the consideration money, as essential, in connection with its other terms, to express OF ALABAMA. 585 McGehee v. Rump. the intention in regard to the estate or interest granted or transferred ; and hence, so far, and as between the parties or their privies, it is not open to impeachment, save in equity. But, when the intention in this respect is not disputed, nor the operation of the conveyance, as such, sought to be changed, the clause in question is treated as formal merely, like the date, and may be con- tradicted or varied by parol."— Vol. 4, ed. of 1850, 583. In another place, the same annotators said, " The English decisions, therefore, whatever may be said of their dicta, do not appear to have gone beyond the point of disal- lowing proof to show a consideration ot a different spe- cies, so as thereby to change the nature of the deed." And they instance the case of a deed, which on its face purported to be a sale for value, and which could not operate as such. In such case, the English rule would forbid that the deed should lie set up as a voluntary con- veyance.— Vol. 4, p. 619; see, also, ib. 584-5. In McCrea v. Punnort, (16 Wend. 473,) the court of errors of New York, Judge Cowen delivering the opinion, said : "A party is estopped by his deed, lie is not to be permitted to contradict it; so far as the deed is intended to pass a right, or to be the exclusive evidence of a con- tract, it concludes the parties to it. But the principle goes no further." In that case, it was held, that although the deeds to the lauds expressed money paid as the consid- eration, it was competent to show that the real consider- ation was iron of a specified quantity, valued at a stipu- lated price. The case last sited contains an elaborate discussion of both the principle and \\iq adjudged c. In the caseof Gully v. Grubbe, (1 J.J. Marshall, 887,) the supreme court of Kentucky, speaking of this ques- tion, said: "Receipts, and other writings which only acknowledge toe existence of a simple fact, each as the payment of money for example., may be Bttsceptible of explanation, and Liable to contradiction by w : ti In the same case it w . that "whenever a right is *«*ti d, or reated, or cxiingni.-hcd, by contract or other- wise, and writing is employed f>r that purpose, parol tes- 33 586 SUPREME COURT McOebee v. Rump. timony is inadmissible to alter or contradict the legal or common-sense construction of the instrument." — See, also. Jack v. Dougherty, 8 Watts, 151; Gale v. William- son. 8 Mees. & Welsby, 405 ; Mildmay's case, 1 Rep. 176; Belden v. Seymour, 8 Conn. -504; Harvey v. Alexander, 1 Rand. 219; Bullard v. Briggs, 7 Pick. 538; Pott v. Todhunter, 2 Coll. 'Ch. 76; Steele v. Worthington, 1 & 2 Ohio Rep. 350; Bedell's rise, 7 Rep. 39; Rex v. Scaminonden. 1 T. R. 474 ; Rockhill v. Spraggs, 9 Ind. 30 ; Meeker v. Meeker, 16 Conn. 387 ; Pritchard v. Brown, 4 X. H. 397; Morse v. Shattuck, lb. 229 ; Rexv. Lainden, 8 T. R. 376; 2 Path. Ob. 181; Wilkinson v. fecott, 17 Mass. 257; 2 Hill's Pr. 292; Stallvvorth v. Preslar, 34 Ala. 511 ; Tyler v. Carleton, 7 Greenl. 175 ; Burbank v. Gouhl, 15 Maine, 118; Wallis v. Wall is, 4 Mass. 135; Gale v. Colmer, 18 Pick. 397; Ilayden v. Mentzer, 10 Serg. & R. 329. We have cited and collated this immense array of au- thorities, mainly for the purpose of showing the spirit of the rule under discussion. Perhaps sach elaboration was not necessary in this case. In the case of Eckles v. Car- ter, (26 Ala. 5ti4,) this court passed on the precise ques- tion we are considering, except, that the object of the proof in that case was not to repel an* illegality, brought to view by extrinsic evidence, hut to let in a defense which was otherwise illegal. Much of the reasoning, however, employed in that case, is equally applicable to this ; an-d we think the true rule is there stated — namely: " Where the deed is not impeached (for fraud), we are unable to perceive any reason why any consideration, which is sufficient to support the deed, may not be shown. In such a case, we see no middle ground to occupy, and must either hold that the clause is conclusive, operating by way of estoppel, or must throw it entirely open to explanation." And this court, in that case, fully adopted the doctrine of McCrea v. Purmort, and threw open the consideration clause to explanation, in cases where the deed was not attacked for fraud. Some of the cases cited above, particularly those from OF ALABAMA. 587 Mc(«ehee v. Rump. Maine, Connecticut and New Hampshire, carry the doc- trine farther than \vc need go,, and farther than we are inclined now to commit ourselves. We cite them, how- ever, with others, as showing, conclusively, that the doc- trine contended for by appellee is opposed to the weight of authority. That there are authorities opposed to this view, we will not deny. In some of them, the conflict is more apparent than real. Many of them state the prin ciple loosely, while most of them, on a close criticism, may be reconciled with the principle wc have announced. "We cite them that the profession may examine what has apparently been said on the other side of this question. Whitlock v. Whitlock, Cow. 270; Garrett v. Stuart, 1 McC. 514; Betts v. Union Bank, 1 H. & Gill, 186; Watt v. Grove, 2 Sch. & Lef. 500; Bridgmau v. Green, 2 Vesey, sr .627 ; Ilinde v. Longworth, 11 Wheaton, 212; Jackson v. Delancey, 4 Cow. 427. Most of these cases were marked bj T strong badges of fraud, and are there- fore within Judge Goldthwaite's exception, as laid down in Eckles v. Carter. The following authorities relate to a different principle, and are not in point: Ridgway v. Bowman, 4 Cushing, (Mass.) 271; Small v. Quincey, 4 Greenl. 497; Coal k Banking Co. v. Ryerson, 8 Dutch. 466-7. See, also, 1 Md. Ch. Dec. 394 ; 2 Tay. Ev. § 818. Where a deed to lands has been executed, reciting that the consideration money has been paid, the plain effect of such deed, unexplained by outside proof, is to vest au absolute and indefeasible title in the purchaser. Yet, on bill filed to assert the vendor's lien, parol testimony is admissible, to show that the purchase-money has not been paid, and thus contradict the recital. This principle is so well settled, that no one now questions it. — See Saunders v. llendrix, 5 Ala. 221; 8 Phil. Ev., C. & IL Notes, (ed. of 1850,) 384. The incidental effect of this proof is, to convert an absolute title into an interest closely akin to that of a mortgagor's equity of redemp- tion. Directly, it does not affect the right and title con- veyed by the instrument ; but indirectly it defeats it. 5S3 SUPREME COURT Mitchell v. Turner et al. in this case, the proof made by Mr. Rump — namely, that. Mr. MeGehee was a negro-trader, without license to sell — did not directly impair or affect the title which Mr. MeGehee had conveyed to him, or the covenants con- tained in that title. The influence it exerted was but an incident. The fact proposed to be proved by the plain- tiff' was also incidental in its character, and should have been admitted. [2.] If the spirit and substance of the transaction, with- out which no trade would have been made, was an exchange of slaves, and the money was employed as the menus of equalizing the supposed values, then the fact that a money value was inserted In the bills of sale can not convert it into a sale. Ti.e practice of inserting a money value in title deeds, when an exchange only is intended, is conve- nient, and is believed to be very common. It cannot convert areal exchange intoa sale. — See Gunter v. Leckey, 30 Ala. 596; Addis on Contr. 154; 1 Parsons Contr. 437, note; Anon., 3 Salk. 157; Mitchell v. Gile, "12 TSt' m H. 395; Vail v. Strong, 10 Verm. 457. If, on the other hand, the real transaction was a sale, although another piece of property was taken in part payment, then any attempt to screen it from public scrutiny by a pretended exchange would be abortive. Whether this was a sale or an exchange, it is not for us to determine,, aud we inti- mate no opinion upon it. Reversed and remanded. MITCHELL vs. TURNER et al. . [action on sheriff's official bond. J 1. Action at law between co-evreties on official bond, — One of the sureties on a sheriff's official bond cannot maintain an action at law on the bond, against the other sureties, for their principal's default. OF ALABAMA. 589 Mitchell v. Turner et al. 2. What is good pica in tar.— That the plaintiff is one of the obligor* on thft bond which is the. foundation of the suit, is properly pleaded in bar, and not in abatement. Appeal from the Circuit Court of Tallapoosa. Tried before the Hon. lioBflRl DoUGHBBTY. Tins action was brought by William M. A. Mitchell, against Green L. Turner, Simon B. Smith, James T. Shackleford, William Paige, and Wyatt H. Whatley, as thesuretiesoq theoffieial bond of Hugh Lockett, deceased, late sheriff of said county. The complaint averred the execution of the bond, set out the condition, and alleged, as a breach thereof, the collection of money by two of the sheriff's deputies, under process on a judgment in favor of the plaintiff, and their failure to pay it over to him on demand. The defendants craved oyer of the bond and condition, (which were thereupon set out,) and pleaded in bar, that the plaintiff was one of the joint makers and obligors of said bond, and equally liable with them for any breach of the same, and was the identical W. M. A. Mitchell whose name was signed to said bond. The plaintiff" demurred to this plea, "because the same is no answer to the complaint, and because it does not present a valid defense to the action, and because it is insufficient in law." The court overruled the demurrer, and the plaintiff was thereby compelled to take a nonsuit, with a bill of exceptions; and he now assigns as error the ruling of the court on the demurrer. J. Falkner, for appellant. — 1. Under the provisions of the Code, joint bonds, covenants, and promisee in writing, are declared several, as well as joint; and the plaintiff may, at his election, sue one, several, or all. — Code, L43, 2149, 2154, 11 . .131. The sureties on official bonds have no right of action against each other, until they have actually paid oil the liability; and if they could not support a suit until payment, tiny could not set up the right by way id' plea. — Code, § 143. -. If the matter of the pica u as available at all, it could 590 SUPREME COURT Mitchell v. Turner et al. 2 . only be by plea in abatement. — Boswell v. Morton, 20 Ala. 235; Henderson v. Hammond, 19 Ala. 340. Brock k Barnes, contra, cited Chandler v. Shehan, 7 Ala. 251; Tindall v. Bright, Minor, 103; Ramsey v. Johnson, Minor, 418; Matn waring v. Newman, 2 Bos. & P. 120. • R, W. WALKER, J.— [July 11, 1861.]— The English rule is, that a person cannot be a plaintiff in an action against others, on a contract made by those others jointly with him. — Mainwaring v. Newman, 2 Bos. & Pull. 120; Moffatt v. VonMullingen, 2 Chitty's Rep. 539; 3 Rob. Pr. 301. Without at this time committins: ourselves to this rule, in the broad terms in which.it is here stated, we are satisfied that one of the sureties on a sheriff's bond cannot maintain an action at law on such bond against his co-sureties. The plaintiff, being co-surety with the defendants, and bound equally with, them to make good the sheriff's default, cannot recover the whole amount of them. The loss must be apportioned among the sureties, and this a court of law is incompetent to do. — See Tin- dall v. Bright, Minor, 103; Chandler v. Shehan, 7 Ala. 251; Carroll v. Bowie, 7 Gill, 34, (41-3;) Milburn v. CodcT, 7 B. k Cr.419. [2.] There is nothing in the objection, that the plea was a plea in abatement, and should have been sworn to. A plea in abatement ought to give a better writ; but the matter alleged in this plea shows that the plaintiff' can have no action at all, and was therefore properly pleaded in bar. — Mainwaring v. Newman, 2 Bos. & Pull. 121; Moffatt v. Vpn Mullingen, 2 Chitty, 539. Judgment affirmed. OF ALABAMA. 591 McLemore v. Nuckolls. McLEMORE vs. NUCKOLLS. [dbtimlk tor SLAVES, AGAINST SIIE1UFK.J 1. Decree in chancery construed ax authorizing issue of fi./a. — A decree in chancery, rendered on pleadings and proof, underabill filed by tlic secured creditors, against the trustees in a deed of trust, charg- ing them with waste, negligence, and misapplication of the assets ; adjudging that, the complainants are entitled to relief, and order- ing the master to state an account of the several debts due to the complainants respectively, and the several amounts with which each trustee is chargeable, ami to ascertain the pro-rata dividend of each creditor; and a subsequent decree, confirming the muster's report, — though informal, are, when construed together and in connection with the lull and the master's report, equivalent to an order for the payment of the several sums of money ascertained to be due from each of the trustees to each of the creditors, and suffi- cient to authorize the issue of a/;", fa. 2. Admissions of cestui que trust admissible against /> ustec. — in an action brought by the trustee of a married woman, suing for nor use, her admissions are competent evidence against him. 8. Admissibility of bill m chanterv as evidence in another suit. — A bill in chancery, sworn to by the complainant, is competent evidence ;..-t him in another suit ; and the fact that the complainant is a - covert, suing by her next friend, does not vary (he principle. mpeteney of distributee as witntss for estate.— On the death of a married woman, pending an action brought by her trustee for her use, a distributee of her estate is not a competent witness for the plaintiff. :">. Admissibility dence. — In detinue by the wife's trustee Huhi^ f>»f her use, to recoverjslaves which he had bought at under mortgage executed by the husband, and winch were after. . wai nd sold by the defendant, as sheriff, under execution against the husband ; the defendant having introduced lend iw,Jthat the money, with which the plaintiff paid for •< furnished by the wile, and was in fa t, as to the . : :tors of the husband, hi? property.-- the ree>.rd of a chai luit, instituted by the. plaintiff individually niter hi.- purctu the slaves at the mortg the purpose "t foreclosing a mortgage oh other slav< • I by the husband; to whi< 1. uitthe defendant wi rty, and in which the plainti with certain m \< paid him by the wife), is not competent evi- m s r 1 >} I E M E COURT McLemore v. Nuckolls. * f<>r tli" plaintiff, " to show that creditors of the husband had aires ved the money paid by the wife to the plaintiff:" ai to the defendant, it is res inter alios arta. ■i! conveyances ; who are creditors or debtors. — A 1rustc\ un" der ri deed of trust for the benefit of creditors, becomes their debtor from the time, he receives money which, by the terras of tne deed, it to be paid over to them, wtthout any subsequent violation of duty on his part, or demand made by them; and the fact that the creditors are non-residents, does not affect the principle. 7. Abstract charge. — A charge to the jury cannot be considered ab- stract, when the bill of exceptions recites evidence tending to show the existence of the facts on which it is predicated*, ai 1 !i' the rd fails to show Buch evidence, the appellate court will pre- sume that a charge given was not abstract, when the bill of ea tions does not purport to set out all the evidence. chii/ of voluntary conveyance, — A contract between husband and . by which a separate estate is created in the wife in the future earnings of herself and her domestic servants, is void as to the ex.* isting creditors of the husband ; and slaves purchased for her by a third person, and paid for with her earnings under such contract, are subject to the existing debts of the husband, like any other property purchased for her with the husband's money. '.'. J imption in favor of judgment. — When a charge is requested, which, on the facts hypothetic-ally stated, asserts a correct legal proposition ; but those facts might be met and avoided by proof of other facts, which would render the charge erroneous,— if the bill of exceptions does not purport to Set out all the evidence, the ap- pellate court will presume, in favor of the ruling of the primary court, that such additional facts were proved. 10. G ndusivcness'of admission under' oath. — When a bill in chancery, under oath, is offered in evidence against the complainant in a Bi\bse pient suit, he is not thereby estopped from denying its aver* ments. .Appeal from the Circuit C«urt of Montgomery. Trier] before the Hbn.lS. D. Hale. Tim action was brought by Moses McLemore, as trus- tee for Mrs. Matilda S. Pinkflton, the wife of James K. Pinkston, and suing for her aa.e, against George 13. Nuck- olls, to recover a negro woman, named EJaster, together with damages for Iter detention; and was commenced on the 10th January, 1854, The defendant pleaded non detinet, and Issue was joined on that plea. It appeared ou OF ALABAMA. 508 McLemore v. Nuckolls. the trial, from the evidence adduced by tlie plaintiff, that the slave originally belonged to said James K. Pinkston, ■who, on the 2d December, 1844, mortgaged her, with two other slaves, to the Branch Bank at Montgomery, to se- cure a bona -/nic debt which he owed to said bank. The mortgage contained a power of sale, under which the slaves were sold on the 5th February, 1849, and were bid off aftlie sale by the plaintiff, at the price of $1325. The assistant bank-commissioner, by whom the sale was made, executed a bill ol sale for the slaves to the plaintiff'; and the latter gave his bill of exchange, accepted by Ana Harper, dated the 5th February, 1850, (?) and payable on the 1st January next afterdate, for the price; which bill, not being paid at maturity, was renewed by another bill on Ann Harper, and the latter bill was afterwards paid by plaintiff. On the 0th February, 1S49, the plaintiff ex ecuted a bill of sale for said slaves, at the specified price of $1422 17, to William J. McLemore, who, on the same day, and at the same specified price, reeonveyed them to the plaintiff, "in trust for the sole and separate use of Mrs. Matilda S. Pinkston, and to be disposed of as she may direct, by will or otherwise, at her death, amongst her childreu then living." In the latter part of December, 1853, or about -the 1st January, 1854, the defendant, as sheriff of Macon county, 1 an execution on the slave now in controversy, as the property of dames K. Pinkston; and sold said slave, under said lev}-, on the 1st Monday in February, 1854. This execution was issued on a decree in a chancery cause, in which Br- Solomon nd others were plain- tiffs, and said Pinkston and one Whil were defend- ants. T),<' bill in that case was filed by the complain* ants, on behalf' of themselves and certain other creditors of C. J*. McCall & Co.j who were secured by a deed of trust executed by said MoCall £ I id Pinkston and Whitesidesi aid trustees with waste, negligence, and misapplication of tl ts which had e to their hands* and sought an acooanf and settle- ment of the trust. The ' was dated and exc- 594 ■ SUPREME COURT McLemore v. Nuckolls. cuted on the 3d February, 1838; and conveyed to trustees a large stock of goods, with the outstanding notes and accounts, and all the other personal assets belonging to said McCall & Co. as partners, in trust to sell, on such terms as the said trustees might deem expedient, and, after paying the expenses incurred in the execution of the deed, to apply the residue of the proceeds, first, to the payment of the debts due from said McCall & Co. to cer- tain creditors residing in New York, and the balance to certain other specified creditors. The trustees accepted the trust, entered on the execution of the duties thereby imposed upou them, and sold the goods, &c, conveyed to them. At the July term, 1847, on hearing on pleadings and proof, the chancellor held, that the complainants were entitled to relief, and ordered an account to be taken by the master, to ascertain the amount of the trust funds which had come to the hands of each of the defendants, the amount due to each one of the complainants from McCall & Co., and their pro-rata dividend of the funds with which the defendants were chargeable; "reserving the question of costs, and all other questions, for further directions on the coining in of the report." The master reported, at the July term, 1849, that there was of the trust funds the sum of $4,830 27 in the hands of Pink- ston, and $4,906 33 in the hands of Whitesides; and also ascertained the pro-rata dividend to which each creditor was entitled of these amounts. At the same term, the chancellor confirmed the master's report, and adjudged the costs of suit against the defendants. The execution which, as above stated, the defendant levied on the slave in controversy, was against Pinkston alone, and com- manded the sheriff to make the sum of §4,8?0 27, which Brewster, Solomon & Co. and other creditors, specified by name, "recovered of him on the 5th July, 1847., by a decree of the chancery court," &0. On the trial, as appears from the bill of exceptions, after the plaintiff had proved his own title, as above stated, the seizure of the slave by the defendant, her value, and the value of her hire, the defendant offered in evidence the OF ALABAMA. 595 McLemore v. Nuckolls. deed of trust from McCall & Co. to Pinkston and White- sides; proved the said trustees' acceptance of the trust, their sale of the goods, &c. ; and then offered in evidence the record of the said chancery suit, the execution, sheriff's endorsement thereon, &c. "The plaintiff objected to the introduction of the proceedings in said chancery suit, on the ground that there was no decree in said cause; and to said execution, on the ground that there was cot such a decree as would sustain it, and that said execution was void." The court overruled these objections, and admit- ted the evidence; to which the plaintiff excepted. The defendant then offered in evidence a transcript, duly certified, of a bill in chancery filed by Mrs. Pink- ston, suing b} r her next friend, against her husband, James K. Pinkston, Moses McLemore, and Rebecca Smith; accompanied by proof that the slave Easter, or Esther, therein mentioned, was the slave here in contro- versy. This bill was filed on the 8th January, 1852, and was sworn to by Mrs. Pinkston. It sought to enjoin said McLemore and Rebecca Smith from further proceedings at law, to.subjoet certain slaves and other personal prop- erty, in which the complainant claimed a separate estate, to the satisfaction of their several judgments against said James K. Pinkston. It alleged, in substance, that said Pinkston, in 1831' or 1840, placed four domestic servants under the sole control of the complainant, under an agree- ment that, after defraying all the family expenses, the balance of the proceeds of their labor and her own might be retained by her for her sole and separate use and ben- efit; that under this contract, by the exercise of industry and economy, she was enabled to realize a sum which, after paying all the current family expenses, and assisting her husband in the payment oi his debts and the educa- tion of their children, amounted, in 1850, to over (2,000; that in February, 1840, laid McLemore purchased for her, at a mon . . i Je, the slave Blaster and two others, at the pri |1&25j which af&OUl I she paid to him out of the funds belonging to her separate estate under the said contract between herself and herhusband. 598 SUPREME COURT MeLemore v. Nuckolls. See the case reported in 31 Ala. 308. The plaintiff ob- jected to the admissions of this transcript, on the follow- ing grounds: "1st, because it was only the admission of aferne covert, and was therefore incompetent; 2d, because Pinkston'8 title was only equitable, and was not the sub- ject of litigation, and, consequently, was not an issue be- fore the jury; and, 3d, because Mrs. Pinkston was not a party to the suit, and her admissions were not evidence." The court overruled all these objections, and admitted the transcript; and the plaintiff excepted. It was admitted, that Mrs. Pinkston died, in July, 1857, in Mississippi, where she and her husband then re- sided. The plaintiff offered said James K. Pinkston, her husband, as a witness. The defendant objected to his competency, on the ground that, by the laws of Missis- sippi, he waa one of the distributees of her estate; and read in evidence the statutes of Mississippi, regulating the distribution of intestates' estates; and it was agreed, that these statutes might be read in this court, on appeal, from the Mississippi Code, as if they had been incorpora- ted in the bill of exceptions. The court suttained the objection to the competency of the witness, and excluded him; to which the plaintiff excepted. It was admitted, that the plaintiff had collected about §2,000, by suit, from Mrs. Ann Harper, as the acceptor of the hill of exchange given, as above stated, for the three slaves bought by him at Ihe mortgage sale. "To prove that the creditors of James K. Pinkston had already received from the plaintiff' the money paid to him by Mrs. Pinkston," the plaintiff offered in evidence the record of a chancery suit, instituted by himself, individu- ally, against said James K. Pinkston and others. The bill in that case was tiled for the purpose of foreclosing a mortgage on several slaves, which was executed by said James K. Pinkston, on the 19th May, 1845, and the law- day of which was the 1st January, 1846. The mortgage was given to Graham & Rogers, to secure the payment of a promissory note for $1,000;. and was assigned by them, on the 20th March, 1847, for valuable consideration, to OF ALABAMA. 59T McLemore v. Nuckolls. Solomon Thompson, whose administrator assigned the same, on the 12th February, 1840, for valuable consider- ation, to said McLemore. In May, 1849, the slaves were sold under executions against said Pinkston; and. the several purchasers at the sale were made defendants to the bill. A decree pro covfesso was entered against Pink- ston. The other defendants answered; alleging that the money, with which McLemore purchased the mortgage, was furnished to him by Pinkston, through his wife, and that the transaction was intended to place the slaves be- yond the reach of Pinkston's creditors. On the final hearing, on pleadings and proof, the chancellor held, that the mortgagor was entitled to a credit for the money ad- vanced by Mrs. Pinkston to McLemore, but ordered a foreclosure as to the balance of the purchase-money paid by McLemore; and his decree was affirmed by this court ? on appeal, at its June term, 1857. — See the case reported in 31 Ala. 26G. On motion of the defendant, the court excluded the record, and the plaintiff excepted. The court charged the jury, "that from the time Pink- ston received any money under the assignment from McOall & Co., which was to be applied to the payment of the debts specified in the schedule, he became the debtor of those creditors, and the fact that they resided in New York made no difference; and that if he thus became in- debted to them, and the slave sued for was transferred or conveyed by him to his wife, under the agreement set forth in the bill in chancery filed by her against him and others, or was bought by McLemore, for her separate use, with the earnings derived by her from the property which she received from said Pinkston under stid agreement, and said agreement was made after said Pinkston became so indebted, then the said slave would be liable to tho payment of a judgment or decree obtained by any such creditors again s1 Bald Pinkston, founded on said indebt- edness/' The plaintiff excepted to this charge, and re- quested the court to instruct the jury, "that if the cred- itors under the assignment resided In Xew York, Pink- ston, the trustee, who resided in Montgomery, where the 598 SUPREME COURT McLemore v. Nuckolls. assignment was made and the business transacted, was not in default for not paying them, until they demanded payment of him, and was not their debtor, in the sense the law requires, until he failed to pay on demand." The court refused to give this charge, and the plaintifl: ex- cepted to its refusal. The plaintiff also requested the following charges in writing: "1. If the jury believe, from the testimony, that the slave sued for belonged to James K. Tinkston in Decem- ber, 1844; that said Pinkston, on the 2dDecember, 1844, executed in good faith the mortgage which had been read in evidence, to secure the payment of the debts therein described; that such debts were due and owing by him, in good faith, to the Branch Bank at Montgomery; that afterwards, Baid debts being unpaid, said slave was sold by the assistant bank-commissioner, under said mortgage, to pay said debts, and was purchased at said sale by said McLemore; that said McLemorc, on the 9th February, 1840, executed to William J. McLemore the bill of sale whieh had been read in evidence; that said William J. McLemore, on the 9th February, 1849, executed to said plaintiff the other hill of sale, or deed for said slave, which had also been read in evidence; that said plaintifl", lor the purchase-money of said slave, gave said bank his bill of exchange, accepted by Ann Harper, and afterwards {aid said bill with his own money, and not with the money of James K. Pinkston; and that he has not been repaid by said James Tv. Pinkston, or with money of said Pinkston, but by Mrs. Ann Harper, — then the plaintiff is entitled to a verdiet, if the defendant was in the possession of said slave at the commencement of this suit. "2. If the plaintiff purchased said slave, at a sale made by the Branch Bank at Montgomery, under the mortgage executed by James K. Pinkston to secure debts due to said bank in good .faith, and paid the purchase-money from his own funds, and did not use the money of James K. Pinkston for that purpose, and was not repaid by said Pinkston, r nor with said Pinkston's money, but with the OF ALABAMA. 699 McLemore v. Nuckolls. money or funds of Mrs. Harper, — then the plaintiff is en- titled to a verdict, if the jury further believe that the deed of the bank to plaintiff", of February 5th, 1819, was then executed to him, and that the bill of sale from him to William ,J. McLemore, and the deed from said William J. McLemore to him, both dated February 9, 1849, were severally executed at that time, and that the defendant had the possession of said slave at the commencement of the suit. "3. If plaintiff purchased said slave, at a sale made by the Branch Bank at Montgomery, under the mortgage executed by Pinkston, which was read in evidence, and which was honestly made to secure debts due from him to said bank in good faith, and paid the purchase-money with his own funds, and not with the money of Pinkston, (although he may have purchased said slave for the sole and separate use of Mrs. Pinkston, and at her request; and although Mrs. Pinkston may have placed in his hands, to buy said slave, money which belonged to her said husband, but'whicfa he used in some other way for her;) and if he has not been repaid the money which he thus paid for said slave, by said Pinkston, or with money or funds belonging to said Pinkston; aud if the several instruments read in evidence — the deed irom the bank to McLemore, the deed from him to William J. McLemore, and the deed from William J. McLemore back to him — were executed as they purport to be; and if the defend- ant was in possession of said slave when this suit was commenced, — then the plaintiffis entitled to a verdict. "4. If Mrs. Pinkston placed money in the plaintiff's hands, for the purpose of buying aaid slave for her, for her sole and separate use, which money was, in law, the money of her said husband ; and plaintiff, instead of using said money in the payment for said slave, in fact paid for her with his own mone}*, and not with the money or funds of Pinkston; and he has never been repaid, cither by Pinkston or Mrs. Pinkston, or with Pinkston's money, for the money thus paid out by him; and if said mort- gage by Pinkston to the bank was executed, as it pur- I SUPREME COURT McLomore v. Nuckolls. portdl to be, in good faith, to secure the debt* therein stated; and said debts were due by him, in good faith, to su'ul bunk; and the slaves therein mentioned, including the slave now in suit, were sold under said mortgage, in February, 1849, and were bought at said sale, as aforesaid, by Moses McLemore; and the several instruments read in evidence — the deed from the bank to Moses McLemore, and from him to William J. McLemore, and from him back to Moses McLemore — were executed at the ^ime they purport to have been ; and said slave was in the de- fendant's possession at the commencement ol this suit, — then the plaintiff is entitled to a verdict. "5. Although Mrs. Pinkston may have made state- ments in a bill in chancery, which were sworn to by her, this does not preclude her from showing that she was mistaken: it is only an admission, and its being sworn to only raises a stronger presumption of the truth of the statement, or of her belief in its truth, but does not con- clusively establish the truth of such statement, if there is sufficient evidence before the jury to satisfy them that she was mistaken, either as to the truth of the statement, or as to the inferences which she or others might draw from it. "6. That the order, judgment, or decree, made in the case of Brewster, Solomon k Co. and others against Pinkston and "Whitesides, which had been read in evi- dence, is not such a final order or decree that an execu- tion could issue on it, except for costs. "7. That the execution issued in said cause is void. "8. That the decree in said cause cannot be looked to or regarded by the jury for auy purpose, and the execu- tion issued on it cannot be looked to or regarded by them for any purpose." The court refused each of these charges, and the plain- tiff excepted to their refusal. The court charged the jury, at the request of the de- fendant, "that if they believed, from the testimony, that the assignment read in evidence was executed at the time Of its date, and that the debts mentioned in it were real OF ALABAMA. 001 _ McLemore v. Nuckolls. and botiajide, and that said Pinkiton accepted the assign- ment, and took possession of all or part of the goods and notes assigned, and sold the goods so taken possession of in 1838, and failed or neglected to pay over the naoney received from the sale to the creditors who were entitled to it under said assignment ; and if they believe, also, that the decree read in evidence wai bused upon such failure or neglect, and that an execution was issued on said decree, and was levied by the defendant, as sheriff", on the slave sued for; and that said slave was sold by the defendant, under said levy; and that said Pinkston, iu 1889 or 1840, made with his said wife the contract stated in tne bill in chancery iu which she was complainant, which had been read in evidence by the defendant; ami' that said slave was purchased with the earnings of Mrs. Pinkston, derived from said contract, — then said slave was subject to the execution issued on said decree in chancery against said Pinkston." The plaintiff excepted to the giving of this charge. All the rulings of the court to which, as above stated, exceptions were reserved by the plaintiff, are now as- signed as error. Thos. Williams, and J no. A. Elmoue, for appellant. "Watts, Judoi & Jackson, contra. A. J. WALKER, C. J.— [June 7, 1861.]— It was ob- jected in the circuit court that there was no decree for the payment of money, upon which thd fieri, facias levied by the defendant could issue. We think the decree of the chancellor in which he makes a reference to the regis- ter, and the decree confirming the register's report, when construed together,and in reference to the bill and tothe report confirmed, amount to an order for the payment of the several sums of money reported by the register to be due by the defendants severally to the respectirr credit- ors, notwithstanding the formality of the dec Huffaker v. Boring, 8 Al. larlund v. Eastland, Har- din, 500; Honor*' v. Coliuesnil, 1 J. J. Marsh. , r »06. 39 SUPKEME COURT t..* 602 McLemore v. Nuckolls. [2-3.] Mrs. Pinkston being the party really Interested, and for whose benefit, the suit was brought, as shown both by the complaint and the evidence, her admissions were competent evidence in favor of the adverse party. The bill in chancery, which was given in evidence, was swdrn to by her, and was, therefore, not the mere allegation of counsel, but a statement of facts, admissible again s't.'hfcr. Durden v. Cleavcbnid, 4 Ala. 225. Her coverture at. the time when the affidavit was made of the truth of her separate bill, does not exempt her from the operation of the rule, that declarations are evidence against parties making them. The separate answer of a feme covert, made under oath by her, is admissible against her; and so also must be her separate bill, when sworn to by her. — 1 Dan. Ch. PI, & Pr. IDG. For these reasons, there was no error in the admission of Mrs. Pinkstoh's bill in evidence against the plaintiff in this suit. [4.] It has been decided in this State, that the husband of a distributee of an . estate would not be a competent witness for the contestants of a will, where the interest of such distributee would be enlarged by the setting a^side •of the will.— Walker v. Walker, 34 Ala 469. Of course, the distributee would, under like circumstances, be an incompetent witness. A recovery by the plaintiff, in this case, would have precisely the same effect, in swelling the distributive share of the distributees of Mrs. Pinkston's estate, as the setting aside of the will in the case cited would have had. "We therefore, decide, upon the author- ity of that Ciise, that a distributee of the estate of Mrs. Pinkston is an incompetent witness for the plaintiff; and thatihere was no error in the refusal to permit James Iv. Pink-ton, who was a distributee, to testily. [5.1 The argument, upon which the defense in thiscase rested, was, that the slave in controversy was sold under a mortgage executed by James K. Pinkston ; that the slave was bought at that sale by Moses McLemore ; that Moses McLemore conveyed the slave to Wm. J. McLe- more, who conveyed her back to Moses McLemore, in trust for the separate use of Mrs. Pinkston, the wife of •^ OF A LABAMA. * 003 • • McLemore v. Nuckolls. James K. Pinkston ; that the money, with which Moses McLemore bought and paid for the slave, wag furnished by Mrs. Pinkston ; that this money, as to the creditors of James K. Pinkston, was, Upon the principle settled in Pinkston v. McLemore, (31 Ala. 308,) the property of the husband ; that the complicated transaction, which resulted in a conveyance to Mrs. Pinkston, was a contrivance to vest her with the title ; and that the whole transaction amounted to nothing more than a gift by James K. Pink- ston to his- wife, which was void as to the debts under which the property was sold, because they were existing at the time of that transaction. The plaintitl' offered to introduce evidence, for the purpose of showing that the money received by Moses McLemore from Mrs. Pinkston was not appropriated to the payment for the slave, but in a different manner. We do not say that the purpose, for which the evidence was offered, was illegal ; but we think the means by which it was proposed to make the proof, was wholly inadmissible. The chancery record, which was offered in evidence for that purpose, was res inter dlips-acta&s to the defendant, and, therefore, not evidence against him for any purpose. [6.] One of the objections made to the first charge given by the court, is, that a trustee, under a deed of trust made for the benefit of creditors residing in another iState, 4Mb not become the debtor of the creditors, when be re- ceives moneys which, by the terms of the deed, were to be paid over to such creditors ; but that lie could only be- come the debtor of the creditors, alter a violation by the trustee of his duties, or after demand made by the cred- itors. This question is conclusively settled, adversely to the appellant who makes the objection, by the decisions of this court in the cases oi Foot v. Cobb, (18 Ala. 080,) and Gnnnard v. Eslava, cJ' 1 Ala. 782.) In the former of ffcfBe cases, it was decided, that an agent, who has sold the slave of his principal on a credit, and promised to pay the purchase-money, when collected, to his principal, is, within the meaning of the statute of frauds, a debtor; and in the latter, that the grantor in a deed containing a 604 SUPREME COURT « J McLemore v. Nuckolls. general covenant of warranty, there being an outstanding adverse title, was a debtor of the grantee, within the meaning of the Fame statute. — See, also, Hitchcock v. Lukens, 8 Por. 833. The fact that the creditors resided in another State, can make no difference.. No distinction can be predicated upon the residence of the creditors. [7.] We do Dot think this charge obnoxious to any of the other objections made to it. It is certainly not ab- stract. The evidence, according to the bill of executions, certainly conduced to show, that Pinkston, the trustee, received money belonging to the trust within three' months after the date of the deed of trust, (Feb. 3, 1838;) and the bill in chancery of Mrs. Pinkston shows, that the agreement between her and her husband was made in 1839 or '40; so that the bill of exceptions positively in- dicates a tendency of evidence to support the proposition, that the indebtedness of Pinkston existed before the agreement between himself and his wife was made. If, however, this were not the case, we would presume, in> favor of the charge, that it was not abstract; there being nothing in the record to the contrary. [8.] In the case of Pinkston v. McLemore, (31 Ala. 308,) it is distinctly decided, that the contract between Pinkston and his wife was void, as to the existing cred- itors of the former; and that the earnings of the wife, and the servants put under her control, under that con- tract, were, as to such existing creditors, the property of the husband. It follows, that if the slave in controversy was bought by McLemore, the plaintiff", for the separate use of Mrs. Pinkston, with her earnings accruing under the agreement with her husband, then the transaction was, as to those who were the husband's creditors at the time of such agreement, a purchase of the property for the wife, with the husband's money. The property so purchased would, as to creditors, belong to the husband, and be liable to their demands. We understand the charge to assert nothing more than this. [!>.] The plaintiff asked eight charges, which were severally refused. The first four of those charges affirm OF ALABAMA. 605 • JH. — — McLeraore v. Nuckolls. the plaintiff's right to ft verdict, if the jury believe cer- tain facts therein specified. The facts specified in each one of those charges, whatever might be their legal effect, it not met and avoided by other facts, certainly do not rise to an irresistible inference in favor of the plaintiffs right to a recovery. For example : if it be conceded that, upon the facts presented in each one of those several charges, a title, good as to the creditors of Pinkstou, would have vested in the plaintiff; yet no right to a recovery would result, upon those facts, if it was shown in reply, that such title had been, before the levy by the defendant, di- vested in some legal manner, and vested in Pinkston, the defendant in execution. The bill of* exceptions does uot profess to set out all the evidence, and we can not pre- sume that it does. — S. M. Ins. Co. v. Holcombe, 35 Ala. 327. As the facts upon which the plaintiff, in the charges asked, predicated his claim to a verdict, were of such a nature that their legal effect would be susceptible of being ,'{t avoided by other facts; and as the bill of exceptions does | not inform us whetheror not such other facts existed, we can not decide that the refusal of those charges Was er- roneous. We can not presume, for the purpose of at- tributing error to the court, the non-existence of the facts requisite to justify those refusals. — Phillips v. Peteet, 35 Ala. 696; Kupert v. Klston, ih. 79; Wynttv. Stewart, 34 Ala. 71(3; l>uekworth v. Butler, 31 Ala. 164. [10.] In refusing the fifth charge requested, the court erred. A party is not estopped from denying the aver- ments of a bill in chancery, although sworn to, when they are offered in evidence, in an independent suit, against such party. The charge was not abstract; for the bill of exceptions sets forth ovid« n< e of I payment for the slave. in a hill ofexchai pted by Mrs. Harper, which bad collected by McLemore from the afceptor. m what idy been said, n* to the admissibility of the execution in evident, it Poults that the 6th, 7th, and 8th charges requested, were properly relus. 1. There was no error in giving the charge which wai 606 % SUPREME COURT Heath v. Devaughn. asked by the defendant. The reasons are indicated in our remarks as to the first charge given. Reversed and remanded. r HEATH vs. HE VAUGHN". [slander.] 1. What w >rd» are actiomih'.e. — Words spoken of another, imputing to him the statutory offense of trading with slaves, (Code, £3285,) are not actionable, since the offense does not involve moral turpi- tude, and the punishment affixed to it is not infamous. Appeal from the Circuit Court of Chambers. Tried before the Hon. John Gjll Shorter. The complaint in this case was in the following words: "James Heath ^ The plaintiff claims of the de- vs. Vfendant ten thousand dollar* as dam- Samuel Devaughn. J ages for falsely and maliciously charging him with the crime of trading with slaves, by speaking of and concerning him, in the presence of divers persons, in substance as follows: 'Have you not been trading with my negroes' ? (meaning the negro slaves of defendant;) ' You have been trading,* with my negroes, you old rascal ' — to-wit, on the 17th August, 1857. "The plaintiit* claims of the defendant ten thousand dollars, also, as damages for falsely and maliciously charg- ing him with the crime of trading with slaves, without the consent of the master, owner, or overseer of such slaves, by speaking of iuid concerning him, in the pres- ence of divers persons, in substance as follows: 'Have yon not been trading with my negroes'? 'You have b^efj,*trading with my negroes, you old rascal *; ' He has OF ALABAMA. * [607 ' m Heath v. Devaughn'. becu trading with my negroes ' — to-wit,'<>n the 17th Au- gust, 1857." The court sustained a demurrer to the complaint, ou the ground that none of the words charged were action- able ; and its ruling is hero assigned as error. Brock k Barsj:s, for appellant, cited the following cases: (Jogburu v. Ilarwood, Minor, 'Jo ; i'erdue v. Bur- nett, \b, 138; Ilillhouae v. Peck, 2 Stow, k I -John- son v. Morrow, !> Porter, 526; Dudley v. Horn, "J 1 Ala. 379; Smith v. Gailard, 31 Ala. 4f>; J3n?soll v. Cornell, 24 Wendell, 3.~»4 ; Brooker v. Coffin, 5 Johns. 188; " 13 Johns. 124,275. Allison & Andrews, omlr% cited Brooker v. CoiHu, 5 Johns. 188; Widrig v. Oyer, 13 Johns, 124; Martin v. Stillweil, 13 Johns. 275; Gibbsv. l)«wey, 5 Qow^c, Fox v. Vanderbeck, :i,ol3; Goodrich v. YVoleott, 3 Cov.v;i,231 : 8. C, 7 Coweu, 714; Derdarest v. Ilaring; ti i ..wen, 7b: Shaker v. Kintzer, 1 Binnoy. 542; Frisbie v. Fowler, 2 Conn. TUT : Chapman v. Gillett, 2 Conn. 01; Hopkins v. Beedie, 1 Caines' Bop. 347; Walker v. Winn, 8 Mass. 24.^; Miller v. filler, 8 Johns. i>6 ; Sheely v. Biggs, 2 liar. & J. 3G3 ; House v. House, 6 liar. 6 J. 126; DotltU v. Henry, 9 Mass. 262. STONE, J.— [July 5, INGI.]— We deem it an Decenary, in tijis e,ase, to consider whether the language averred in the complaint to have been ipoktti by the defendant, suf- ficiently identities and the otfense denounced by section 8385 of the Code. — See Code, § 2224 ; Perdue v. Burnett, Min. 1B8 ; Stargenegger v. Taylor, 2'Brev. 180.. On another ground, we think the judgment of the circuit court iiiust be ailinued. The punishment for trading illegally with slaves in a money due,. to which may ho added imprisonment in the coUutyjaij, ndt exceeding months. A mere trading with Blaves, without the cbft- ut of the master, own- r, or overseer of such sla\ no!, //< T .><, iir, ■>. . e iiiui :.i turpi! ude ; and the pu nidi ment I 608 SUPREME COURT Ex parte Northeast and South-west Alabama Railroad Company, is not infamous:, in that sense which constitutes the words actionable of themselyes. — Hillhouso v. Peck, 2 S. & P. 395; Johnson v. Morrow, 9 Por. 525; Dudley v. Horn, 21 Ala. 379; Andres* v. TCoppenheafer, 3 S. & R. 855; McClung v. Ross, 5 Bin. 218; Birch v. Benton, 2G Mo. (5 Jones,) 153; Speaker v. McKcnzie, ib. 255; Qninn v. O'Gara, 2 E. D. Smith, 388 ; Young v. Miller, 3 Hill, 22 ; McKee v. Ingalls, 4 Srnm. 30. See, also, Shuttleworth v. The State, 35 Ala. 415, and authorities on appellee's brief. Judgment of the circuit court affirmed. i Ex Pabte NORTH-EAST & SOUTH-WEST ALA. RAILROAD COMPANY. | AIM'I.TCATION FOK 1SANDAMUS TO CIRCUIT COURT.] 1. Legislative pou-rr to alter summary remedy of corporation against de- faulting stockholders. — A summary remedy against defaulting stock- holders, given to a corporation by the act of its incorporation, is no part of its corporate franchises, and may be altered or modified by the legislature at pleasure. 2. " Stay-law" applies tu summary proceedings. — The. first section of the act "to regulate 1 judicial proceedings^" approved tho J 8th Feb- ruary, 1861, and commonly known as the "stay-law," (Acts of Called Session of 1861. p. 3.) winch prohibits the rendition of .judg- ment at the return term of any "suit, writ, summons, complaint or bill," applies to a summary procecdiqg by notice and motion, on the part of an incorporated railroad company, against a delin- quent stockholder; although the, charter of the company author- izes the rendition of judgment in its favor at the return term of the notice, provided it has been served twenty days previous thereto. 3. Continuance and discontinuance of summary proceeding. — A summary proceeding by notice and motion will be discontinued, unless some action is had on the notice at the return term, although the ''stay- law " prohibits the rendition of judgment at that term; yet the OF ALABAMA. 609 Ex parte North-east and South-west Alabama Railroad Company. plaintiff may keep alive his notice, by having it docketed, accord- ing to the rule of practice adopted at this term, or by some action of the court continuing its existence. Application for a mandamus to the circuit court of Tut- kaloosa, Hon. Wm. S. Mudd presiding, to compel that court to render judgment in a certain cause therein pending, wherein the Norrth-east and South-west Alabama Kail- road Company was plaintiff, and one John McClelland was defendant. The plaintiff was incorporated by an act of the legislature of this State, approved Dec. 12, 1853, (Session Acts 1853-4, p. 270 ;) and the 14th section of its charter gave it a summary remedy by notice and motion against delinquent stockholders, or subscribers for stock. The suit was commenced by notice, which was served on the defendant more than twenty days before the return term. The circuit court refused to render judgment at the return term, on the ground that the fourth section of the "stay-law" of February 8, 1861, applied to such cases; and this refusal is made the ground of the present application to this court. Yj. W. Peck, for the motion. R. W. WALKER, J.— [July 12, 1861.]— By the 14th section of the act "to incorporate the North-east and South-west Alabama Railroad Company," it is provided, that upon the failure of any stockholder to pay his calls of stock, the corporation "may move the circuit court of the county in which the stockholder resides, for judg- ment at the time at which rucIj motion is made, twenty days' notice being given him of said motion. Thenotice may be issued by ihe president of the corporation, and served by the sheriff, who shall be entitled to one dollar therefor, to be t:ixcd in the bill oi ; and upon judgment, execution shall issue as in other cases." — A 185&-4, p. 275. [1.] Of the power of the legislature to control and modify, at its pleasure, the summary remedy here be- 610 SUriiF.MK COURT Ex pari- North-east and South-west Alabama- Railroad Company. stowed upon the corporation, to the same extent that it can regulate the PfernedfieB for the enforcement of con- tracts between private individual!*, we entertain no doubt. Bank of' Columbia v. Okely, 4 Wheat. 244-5; Howard v. Ky. & Lou. ins. Co., 13 B. Monr. 285-6; AngeU Corp. | 760. [2.] The question is, whether the legislature has exer- cised the power here asserted. The court below decided that it has, and held, that the 'remedy given by the 14th section of the act of incorporation is so far affected by the act approved February 8, 1861, commonly known as " the stay-law," that the corporation is not entitled to have its motion heard at the term to which the notice is returned, although the notice has been served more than twenty days before the motion is made. The 1st section of the act last referred to provides, " That hereafter, in the commencement of any mi it in any of the courts of law or equity in this State, the court to which any suit, writ, summons, complaint, or bill, may be made returnable, shall be deemed and held as the re_ turn term of sUch suit, writ, summons, complaint, or bill, and the same shall stand for trial at the next succeeding regular term of such court appointed by law to be holdeii after such return term ; and the parties in the law courts shall not be required to plead at the first' term, except that pleas in abatement shall be tiled as now required by law."— Acts of Called Session of 1861, p. 3. The language here employed is certainly as compre- hensive, as could be desired. The words of this section, standing by themselves, are broad enough to embrace a summary proceeding, by notice and motion, in the cir- cuit court. ' Such a proceeding is a suit in a court of law; and the words here used are, kk in the commencement of any suit in any of the courts of law or equity in this State, the court to which any suit, writ, summons, com- plaint, or bill, may be made returnable," &c. The use of all these terms clearly implies, that the statute was in- tended to apply to suits not begun by writ, summons, or <"omplaint, fca well as to those which are. In Alabama & OF ALABAMA. 611* Ex parte North-east and Soutli-w.st Alabama Railroad Company. Tennessee Rivers K, R. Co. v. Harris, (£5 Ala. 232,) it was held, that a proceeding by notice and motion on, the part of a railroad company, against a delinqu* Judder. is " a suit" within the meaning of"/' section 2398 <>f the Code. So, in Ex parte Robbins, (29 Ala. 77,) it was de- clared that an action, commenced by original attachment, is within the provisions of section 2o ( JG of the (."ode, though the words of that section, literally const .rued, seem applicable only to suits begun by summons and complaint. In Stanley v. Bank of Mobile, (•_'.; Ada'. 662,) it was hold that, in a proceeding by notice and motion, the issuing of the notice is the commencement of the suit, and prevents the statute of limitations from creating a bar. although the motion for judgment is afterwards delayed. And the notice serves the double, purpose of writ and declaration. — Jemison v. P. k M. Bank, 17 Ala. 754; Stanley v. Bank, supra; Griffin v. Batik, 6 Ala. 908 (910). But we are not left alone to the words of the 1st sec- tion. T^he 5th section provides, that "the provisions of this act shall not be held to apply to suits of any descrip- tions or judgments in any court against defaulting public officers, for tailing to pay over money, or for any bread) of the duties required of them by law." It is plainly to be implied from this, that, but for the special exception here I lmmary proceedings by notice and motion againsi sheriffs and other public officers, would be sub- ject to the provisions of this act. The object of the leg- islature \. h all suits, except those especially ntlBttd in the 5th section : and suits in which judg- ment is obtaiind on notice and mol Ion, are ;i s much with- on ot tiip law, a- those cV>3. It is probable, that the position which has been taken in this State, upon this subject, is irreconcilable with the position of the appellate court of Mississippi, in reference to a kindred question. — Clark v. MeCreary, 12 S. & M. 347 ; Duncan v. Johnson, 23 Miss. 130. But the doctrine announced by this court irily controls the title of property to a large extent, and, having been recognized as law for ten years, is not now open for controversy. We d<« not wish, however, to be understood as insinua: ing a doubt of the correctness of it ; for we are inclined to think, that it is sustained by satisfactory reasoning in the •ion of Kidd v. Montague, where it was first an n on need. 616 SUPREME COU RT Anderson's Executor v. Anderson's Heirs. [2.] By virtue of the principle above stated, James A. Anderson had a right, notwithstanding the act of March 1st, 1848, to go on and reduce to possession his wife's dis- tributive interest in the slaves of her father's estate ; and if he did so in his life-time, a complete title vested in him, to the exclusion of his wife. The division, by the con- curring consent of all the distributees, may not, accord- ing to previous decisions of this court, have had the effect of vesting the respective distributees with the legal title. But, as the debts of the estate were paid, and a final set- tlement of the administration had been effected, the divi- sion, and reciprocal conveyances of the distributees, cer- tainly had, at least, the effect of investing each with the equitable title. — Marshall v. Crow, 29 Ala. 278; Vander- veer v. Alston, 16 Ala. 494 ; Bethea v. McColl, 5 Ala. 308; Miller v. Eat ma Q, 11 Ala. 609. A court of chan- cery would, upon a suitable application, have ordered ft division ; and those who were interested may, by consent, do that which might have been accomplished through the agency of a court of chancery. The wife of James A. Anderson having, by the division and deed, acquired a title to the slaves Jane and her children, even though it was purely equitable, and having possession thereafter, the husband, by virtue of his right to reduce to possession his wife's choses, acquired at least an equitable title, which is not affected by the married woman's law. Y-4 The executor was guilty of a palpable breach of duty in surrendering the property thus held by his testator, and the court properly charged him on account thereof. [3.] The executor was not entitled to a credit for the fee paid his counsel, on account of services rendered in stipportof the attempt to relieve himself from the charge for the slaves Jane and her children. The litigation upon that subject was produced by his own error, and by an attempt to obtain the sanction of that error by the court. For the fees of counsel in such a litigation, the estate ought not to be charged. — Smith v. King, at June term, 1860. [4.] If there was any error in making the allowance to OF ALABAMA. 617 Lawrence v. Jones. the guardian ad litem, it was one which did not prejudice the appellant. It is not necessary for us to notice the rulings on ques- tions of evidence. They have not been presented by coun- sel in argument; and it is very clear that the court has committed no error in those rulings, which would have changed the result. Affirmed. LAWRENCE v*. JONES. [motion to amend execution.] 1. Damages an affirmance $f judgment. — On the affirmance of a judg- ment which has been superseded, (Code, $3032,) the ten per cent, damages should be computed <>n the amount of the original judg. ment, and not on that sum wiih the interest thereon up to the time of the affirmance. Appeal from the Circuit Court of Montgomery. Tried before the lion. John K. IIi>nry. The appellant in this case recovered a judgment against the appellees, in the circuit court of Montgomery, on the 9th June, 1859; for $8,000 damages, besides costs. The defendants removed the case, by appeal, to the supreme court, and gave bond with surety to supersede the judg- ment. The judgment was aflirmed by the supreme court, at its June term, 1860 ; and that court rendered a judgment against the defendants, "for the amount of said judgment, ten percent, damages thereon, and costs." Wlen this judgment was certified to the einuit court, the clerk of that court is>ne,l an execution again*! the defendants, for $x,0()0, the amount of the original judg- ment, ''and §800 damage* awarded by the supremo court, besides the sum of #70 25 costs." At the next 40 618 SUPREME COURT Lawrence v. Jones. ensuing term of the circuit court, the plaintiff moved to amend the execution, by striking out $800, as the dam- ages awarded by the supreme court, and inserting in lieu thereof ten per cent, of the original judgment with the interest thereon up to the day of the affirmance. The circuit court overruled the motion, and the plaintiff' excepted to its decision; and he now assigns the same as error. Goldtwhaite, Rice & Semple, for appellant. Watts, Judge & Jackson, contra. STONE, J.— [February 27, 1861.]— Section 3032 of the Code declares, that when a money judgment, which has been superseded by appeal to this court, and bond with surety given, is affirmed in this court, the judgment here iendered shall be "for the amount of the affirmed judg- ment, ten per cent, damages thereon, and the costs of the supreme court." In this case, we are required to de- cide, whether the ten per cent, damages is limited to the «um shown in the face of the judgment appealed from, or includes that sum with interest thereon up to the time of the affirmance. If this were a new question, uncontrolled by the pre- vious practice of the courts, it might admit of contro- versy, what is the true amount of the affirmed judg- ment, on which the ten per cent, damages should be com- puted. We do not, however, feel at liberty to enter upon this inquiry at the present advanced epoch in our judicial history. A statute, similar to the one under dis- cussion, was in force in this State for forty years.-— See Clay's Digest, 309, § 20. We are convinced, that the uniform practice of the courts has been, to compute the damages only on the principal sum of the judgment. "This having been the construction of the act for so long a time, aud the practice having been so universal, we do not feel at liberty to disturb it." — Ijaras v. Rice, 17 Ala. Affirmed. OF ALABAMA. 619 Harrison v. McCrarv. HARRISON vs. McCRARY. [bill is equity for specific performance of award, settlement of partnership accounts, injunction, ac.] 1. Injunction of action at laic. — A court of equity will not enjoin an action at law for a trespass, on the ground that the plaintiff there- in is, and was at t lie time of the alleged trespass, indebted to the defendant on account of other matters, and is insolvent. 2. Dissolution of injunction, without dismissal of bill. — An injunction may properly be dissolved for want of equity, where the allega- tions of the bill are nut sufficient to authorize the interference of the court by injunction, although the bill may be retained for other relief. Appeal from the Chancery Court of Dallas. Heard before the Hon. James B. Clark. The complainant in this case, L. C Harrison, and P. R. McCrary, the defendant, formed a mercantile partnership in, October, 1851 ; the business to be conducted in the town of Summcrfield, in Dallas county, and to coutiuue for the period of five years, unless sooner dissolved by agreement. On the 22d December, 1853, Harrison bought out McCrary's interest in the firm, andemployed him, at a fixed salary, to collect the outstanding debts; and the profits and losses of the business up to that time, as shown by the books, were adjusted between them by written agreement. It was soon afterwards discovered that the dataon which this agreement was based ware incorrect, and the parties thereupon entered into another written agree- ment, which provided, in substance, that the settlement be- tween them should be made according to the principles of the original articles of partnership, instead of the secoud agreement above mentioned. Not being able to settle the partnership accounts between themselves, the parties entered into a written agreement, under seal, dated the 23d September, 1857, to submit the matters in dispute to 620 SUPREME COURT Harrison v. McCrary. arbitration ; the award to be entered up as the judgment of the circuit court, under the provisions of the Code. On the 4th May, 1858, an award was made by two of the arbitrators, deciding that McCrary was indebted to Har- rison in the sum of $5,707 57. This award was filed in the office of the circuit clerk, and an execution was there- on issued against McCrary, which was levied on four slaves; and these slaves were afterwards sold under the execution, and were purchased at the sale by Harrison. At the term of the circuit court to which the execution was returnable, McCrary made a motion to quash it, and to set aside the award ; and his motion having been over- rule i, he excepted to the ruling and decision of the. cir- cuit court, and sued out an appeal to the supreme court, where, at the June term, 1860, the judgment of the cir- cuit court was reversed, and the cause remanded, — the supreme court holding, that "the award was, at least prima facie, void." — Seethe case reported in 36 Ala. 577. Soon after the levy of the execution on the shaves, (at what precise time does not appear.) McCrary brought an actiou of trespass against Harrison, to recover damages for the taking of the slaves; and that action was pending on the 7th July, 1860, when Harrison filed his bill in equity against McCrary, — -alleging, in addition to the facts above stated, that McCrary was largely indebted to him on account of the partnership transactions between them, and was insolvent. The prayer of the bill was, that the action at law might be perpetually enjoined, and the award specifically performed; or, in the event the court should decline to decree a performance of the award, that, an accountjmight be taken of all thepartnership transactions, and that the value of the slaves, with their hire, might be applied to the satisfaction, pro ianio, of the amount which might be found due to the complainant ; and the general prayer, for other and further relief, was added. On the tiling of this bill, an injunction was granted by a circuit judge. After putting in an answer, in which was incorporated a demurrer, the defendant moved the chan- cellor to dismiss the bill for want of equity, and to dis- OF ALABAMA. 621 Harrison v. McCrary. solve the injunction. On the hearing of this motion, the chancellor dissolved the injunction, but refused to dismiss the bill for want of equity ; and the dissolution of the injunction is now assigned as error by the complainant. Byhd & Mobgan, for appellant, cited Story's Equity, §§ 8U3-97, 001, 002, 005, 907, 957-58 ; Ilarrell v. Ells- worth, 17 Ala. 576; Burden v. Stein, 27 Ala. 104. Pettus, Pegues & Dawson, contra, cited Hamilton v. Adams, 15 Ala. ~AHj\ Wiggins v. Armstrong, 2 Johns. Ch. 144; Norris v. tforris, 27 Ala. 519. R. W. WALKER, J.— [June 28, 1861.]— There was no error in the decree dissolving the injunction. The com- plainant admits that he committed a trespass in taking and carrying away the defendant's slaves; and he seeks to enjoin the action for that trespass, on the ground that the defendant is indebted to him on account of part- nership transactions, and is insolvent. The well-settled rule, that a creditor at large, or before judgment, is not entitled to an injunction, to prevent the debtor I o fraudulently disposing of his property, (Wiggins v. Ann- strong, 2 Johns. Ch. 144; Mercer v. Downs, Hopkins Oh. 365,) would seem to be decisive against the right to an injunction in this case. For, if the creditor can take his debtor's property by force, to secure his debt, and hold on to it by enjoining the action of trespass, he is permitted to accomplish by force, sanctioned in equity, that which the court would not allow him to do without force. To sutler that to be done, would be a plain viola- tion of the familiar and wholesome principle, that, a right cannot grow out of a wrong —Sue, further. Hamilton v. Adams, 15 Ala. o'.ui. En addition to this, a court of law is the proper tribunal to ascertain the damages, to which a party is entitled for a trespass upon his] * Smart money, 1 or rindiotive damages) can be r I at law; but a court of equity cannot consider that tion at all, and therefore ean not ascertain the dan n 622 SUPREME COURT Ward v. Cameron's Adm'rs. The effect of sustaining: the injunction, in such a case, must be to deny the .right of the injured party to smart money. It is hardly necessary to add. that where a bill does not warrant an injunction, the injunction may properly be dissolved, although the bill may be retained for other relief. — Xorris v. Norris, 27 Ala. 529. Decree affirmed. WARD vs. CAMERON'S ADM'RS. [application for revocation of letters of administration.] 1. Presumption in favor of ruling of primary court. — In a probate case, where the correctness of the ruling of the primary court depends on the proof, and the record does not purport to set out all the evidence on which the probate judge acted, the appellate court "will presume that his decision was justified by the evidence. 2. Revocation of letters of administration. — If letters of administration are granted by the probate court, within forty days after the death of the intestate is known, in contravention of the order of prefer- ence prescribed by the statute, (Code, \\ 16G8-6P,) the largest credi- tor of the estate may proceed to obtain a revocation of such letters ; but, to entitle him to make an application for that purpose, he must show that he is the largest creditor of the estate ; and he can- not complain, on error, of the refusal of his application, when the record does not show that he proved that fact. Appeal from the Probate Court of Henry. In the matter of the estate of Angus Cameron, deceased, on the application of John Ward and Christopher Ward for the revocation of letters of administration previously granted to Sarah Cameron' and Richard T. Hudspeth, and the grant of letters to themselves. The refusal of the application is assigned as error. I OF .ALABAMA. 623 Ward v. Cameron's Adm'rs. Martin, Baldwin & Sayre, for appellants. Pugh & Bullock, contra. A. J. WALKER, C. J.— [June 8th, 1861.]— An appli- cation was made by the appellants, for the repeal or the letters of administration of the appellees. The parties making the motion filed a petition, which is set out in the record. In the petition they claim to be the largest credi- tors of the estate. The entry of the judge, overruling the petition, does not set out all the evidence which was adduced on the trial, and there is no bill of exceptions. We have, therefore, presented t\\a case, which has been unfortunately of very frequent occurrence, where the correctness of the ruling of the court below depends upou the proof, and we do not know what the proof was. In such case, we must presume in favor of the correctness of the judgment, and award an affirmance. — Morgan v. Morgan, 35 Ala. 303; Taylor v. McElrath, ib. 330; South- ern Ins. Co. v. Holcombe, ib. 327 ; Rupert v. Elston, ib. 79. [2.] It is uot shown that the appellants proved that they were the largest creditors of the estate, or, indeed, that they were creditors at all. We have decided, that where an administrator was appointed within forty days, iu contravention of the order of preference prescribed by the statute, the largest creditor of the estate might pro- ceed to obtain a revocation of the administration. — Cur- tis v. Williams, 33 Ala. 570; Curtis v. Burt, 34 ib. 729. But, unless the petitioner was a creditor of the estate, he . would have no right to move for a revocation of an irreg- ular appointment, and no ground for complaint that the court overruled his motion. As it does not appear that the petitioners were creditors, we can not affirm that there was no sufficient reason for the action of the court. Aftinnt'd. # 624 SUPREME COURT Coker v. Pitts. COKER vs. PITTS. [sale of slaves jjy prouate court FOR PARTITION.] 1. When tale for partition may be decreed. — Under tlie act of February 5, 1 ion Acts 1855-46, p. 20,) an order for the sale of slaves, for partition among the several joint owners or tenants in common, should not be granted by the probate court, on the ap. plication of the guardian of infants, without proof that the sale would he to the interest of the infants ; but, when the application: is made by adult part-owners, such proof is not necessary, although some of the parties interested are infants. Appeal from the Probate Court of Tallopoosa. "Wm. II. Barnes, for appellant. McCraw & Oliver, contra. STONE, J.— [June 28, 1861.]— The present applica- tion, for the sale of slaves for division, was made under the act approved February 5th, 1856, which act was amenda- tory of the act of February 15th, 1854, and of section 2677 of the Code.— See Pamphlet Acts of 1855-6, p. 20; Acts of 1853-4, p. 7. The petitioners in this case were not guardians of infants, or 'persons of unsound mind; but petitioned in their own right, they being adults. The proof taken in the cause conclusively shows, that an equi- table "partition or division" of the slaves can not be made without a sale; but it is not shown, that it would be to the interest of the infants, who are part-owners of this property, to sell the same. It is here contended, that the order of sale should not have been granted in the absence of such proof. In support of this position, the appellants rely On the 5th section of the act of February 5th, 1856, which declares, that, "before granting any application un- der this act, the said judge of probate must be satisfied by evidence, taken as in chancery cases, that an equitable partition or division can not be made; and, when the ap- OF ALABAMA. 625 Alabama & Tennessee Rivers Railroad Company v. Oaks & Mills. plication is by the guardian of any one or more of the infants or persous of unsound mind, the judge of probata must not only be satisfied that such property can not be equitably divided, but that it would be to the interest of such infants or persons of unsound mind to sell the same for the purpose of partition and division." This argument can not be maintained. It runs coun- ter to the express language of the statute, and to the fa- miliar maxim of the law, inclusio unius est exclusio alterius. Moreover, there is strong reason for requiring proof that the interest of the infants would he promoted by a sale, when the guardian is the actor in the proceedings. In such case, the guardian alone manifests a wish to sell ; and sound policy would dictate that his wish should not be gratitied^inless it would be to the interest of the infants to sell. The case is quite changed, when adult part- owners ask a sale for division. Their interests are coequal with those of the infants. Their right to have the pos- session of their property, and to have their wishes in the premises gratified, is to he respected equally with the in- terests of the infants. It would be monstrous to hold, that adult part-owners should be kept out of the enjoy- ment of their property, merely because other part-owners were infants, and the interests of such infants did not re- quire that the property should be sold. Judgment of the probate court affirmed. Let the costs of this appeal be paid by the appellant, Thomas J. Smith. ALA. k TEXX. RIVER8 RAILROAD COMPANY vs. OAKS kMIL] [ACTION AGAINST KAII.l:" ID I "UPANY AS COMMON CAli! I. 25 nurt. In appeal casea from ajtutice'i court, where the amount in eontro- 626 SUPREME COURT Alabama k Tennessee Rivers Railroad Company v. Oaks & Mills. versy exceeds twenty dollars, the statute authorizing either party to he a witness in his own behalf, (Code, \ 2770,) has no application to suits by or against corporations aggregate. Appeal from the Circuit Court of Shelby. Tried before the Hon. James B. Martin. Byrd & Morgan, for appellant. R. W. WALKER, J.— [July 2, 1861.]— This was an appeal from a justice's court. The plaintiffs (who were partners) claimed over twenty, and less than fifty dollars; and one of them offered himself as a witness. He was objected to as incompetent to testify, on the ground that the defendant was a corporation ; but the court overruled the objection, and permitted the witness to testify. The Code provides, that "when the matter in contro- versy, or damages claimed, exceed twenty dollars, either party may be a witness in his own behalf, unless the party against whom the testimony is offered swears that the testimony proposed to be given is untrue." — Code, § 2779. The language here employed plainly implies, that this provision was designed to apply only to those cases, in which the party against whom the testimony is offered has the legal capacity to take an oath. A corporation aggregate can not take upon itself an oath, and upon that oath swear that the testimony proposed to be given is untrue. The section of the Code (§ 2313) construed in Yonge v. Mobile & Ohio R. R. Co., (31 Ala. 422,) bears a strong resemblance to the one we are considering; and the decision of the court in that case supports the opinion just expressed, that the clause of section 2779, above quoted, has no application to suits by or against corpora- tions. Judgment reversed, and cause remanded. A. J. Walker, C. J., not sitting. OF ALABAMA. 627 Coate v. Coate's Adm'r. COATE vs. COATE'S ADM'R. [tuover for COttTBRBloN of slaves.] 1. Competency oj transferror as witness for transferrre. — A distributee of an estate, who is shown to have released to the other distribu- tees his interest in the subject-matter of a suit brought by the ad- ministrator, in his representative character, is not incompetent as a witness For the plaintiff under section 2290 of the Code. ijideneij of distributee as witness for administrator. — But such dis- tributee, notwithstanding such release, is not a competent witness for the administrator, on the ground of interest, although he might be rendered competent by a release of his entire interest in the estate. 3. Competency of witness as affected By interest — An obligor in a bond given under section 1691 of the Code, when administration is committed to the general administrator, the sheriff, or the cor- oner, conditioned for the payment of the feesand allowances made by the court on such administration, " if the property of the es- tate is insufficient therefor," is nut, under section 2302 of the Code, incompetent as a witness for such administrator, in an action brought by him in his representative charaoter. Appeal from the Circuit Court of Clarke. Tried before the Hon. John K. IIenky. This action was brought b} T E. P. Chapman, as the administrator of William F. Coate, deceased, against Burr J. ( i recover d:i or the conversion of several slaves;. The defendant pleaded not guilty, and I itatute of limitation! yean, with leave to give toy special mutter in evidence. "On the trial," as the bill of ezceptioi . "the plaintiff introduced one Andnw J. Coate as I witness ; to whose competency the defendant objected, y : iurt, without a previous application to the circuit court, enjoining furthej by the probate judge : and the aj • nrall- !v of the conscript. ■ commonly called I it u tea at I 638 SUPREME COURT Ex parte Hill, in re ..Willis et til. v. Confederate States. Congress, 1st session, p. 39; A. 2d session, p. CI,) are constitu- tional. (PerBtovK, J.) Application by L. II. Hill, an officer in the provieional army of the Confederate States, and the enrolling officer of the district including the county of Montgomery, for writs of prohibition, to be directed to the probate judge of said county, enjoining and restraining him from fur- ther proceedings in the matter of the petitions of Asa J. Willis, E. P. Johnson, and Calvin Reynolds, respectively, for the writ of habeas corpus, by which said petitioners sought to obtain their discharge from the custody of said enrolling officers. The application was made on a regular motion day, during the January term, 1863; present, Hon. A. J. Walker, C. J., and Stone, J. The opinion of Chief-Jus- tice Walker was pronounced on the 4th March, 1863, and an opinion was pronounced by Justice Stone a few days afterwards ; but the latter opinion was subsequently withdrawn, and that herewith published was substituted in its stead. The case was argued at the bar, by P. T. Sayre, on be- half of the Confederate States, and by S. F. Rice and Jno. A. Elmore, with whom was A. B. Clitherall, for the petitioners in the court below. No brief or memo- randum of their arguments has come to the hands of the Reporter. A. J. WALKER, C. J.— [March 4th, 1863.]— Three persons, who were taken and detained in custody under the conscript law bv the enrolling officer, severally peti- tioned the probate judge for writs of habeas corpus, predi- cating their prayers for a discharge upon the ground of exemption from conscription on account of physical dis- ability ; and the writs were awarded by that officer. The enrolling officer, contending that the judicial tribunals of the State have no jurisdiction over the matter of his detention of those persons as conscripts, now applies to this court for writs of prohibition. Thus the duty de- volves upon this court, of deciding whether a State tri- OF ALABAMA. 639 Ex parte Hill, in re Willis et al. v. Confederate States. bunal has authority to discbarge one who has been taken and is detained by the enrolling officer as a conscript, upon the ground of 1 1 is exemption for the reasons aUove stated. The first section of the act of congress, approved April 16th, 1862, authorizes the president to call (kit and [dace in the service of the Confederate States men between the ages of eighteen and thirty-live years, who were not legally exempted from military service. The amendatory act of the 27th September, 1862, in language similar to that employed in the original law, extends the authority to men between the ages of thirty-five and forty-live; and requires the president, if he should not call out all the persons between the specified ages, to discriminate, by limiting his call to persons of some particular age under forty-five. By an act, approved 21st April, 1862, certain descriptions of persons were exempted from enrollment for service in the armies of the Confederate States. That act was repealed by one adopted on the 11th October, 1862, which exempts "from military service in the armies of the Confederate various classes of persons therein described. The two acts of 16th April and 27th September impose upon the authority to conscribe a restriction to persons not legally exempted. The persons exempt arc not de- scribed by name, but by classes, defined by reference to bodily or mental incapacity, to the incumbency of certain offices, the practice of certain useful arts, the profession of some specified religions creeds, and other distinguish- ing pecnliarit'n . As the authority to conscribe does not extend to the individuals who compose those classes, it can only be exercised by ascertaining the prisons to whom the peculiarities distinguishing the different el; pertain. Tb tain men t of the legal subjects of con- scription is an unavoidable si ep in the proceeding. In quiry and decision, upon this point, are necessarily in- volved in thi >wer fo con- scribe all within the pretori bed ages, "who are not legally exempted from military sen, 040 SUPREME COURT Ex parte Hill, in re Willis et al. v. Confederate States. The selection irom the community at large of the sub- jects of conscription, involving inquiry and decision as to the status of every man, was obviously susceptible of accomplishment by the executive department of the gov- ernment, only through the agency of officers, clothed with the requisite authority. Congress therefore has authorized the appointment of such officers. By the third section of the act of 16th April, 1862, the president is empowered to appoint officers, charged with the duty of enrolling conscripts, "in accordance with rules and regu- lations to be. 'prescribed by him." A later act, approved 8th October, 1862, directs, that enrollments shall be made under instructions from the war department, and reported by the enrolling officer. Furthermore, an act, approved Oc- tober 11th, 1862, authorizes the assignment of oue or more surgeons to the dutv of examining those enrolled ; and declares, that "the" decision of such surgeon or sur- geons, " under regulations to be established by the secretary of wdr" y as to physical and mental capacity, shall befinak The employment of appropriate officers to execute the conscript law, is thus clearly authorized. Every act of conscription by such officers must be done pursuant to a decision based upon an inquiry, in which the hearing and weighing of evidence must often, if not always, be neces* sary. Without an inquiry and judgment as to the lia- bility to conscription, no enrollment could be made, be- cause it could not otherwise be determined who were subject to conscription. This authority to inquire and decide is not, however, left to implication from the na- ture of the act. There is an express authority to decide upon the question of exemption on account of mental or physical incapacity, and the decision of the tribunal de- . signated is made final. The existence of such authority is clearly indicated in the phraseology of the law, declar- ing, that "all persons who shall i\e hell unfit for military service in the field, by reason of bodily or mental inca- pacity, -under the rules to be prescribed by the secretary of war," shall be exempt. The holding or deciding per- sons to be unfit for military service, under rules prescribed OF ALABAMA. 641 Ex parte Hill, 'in re Willis et al. v. Confederate States. ^ ; - by the secretary of* war, must be by the officers appointed to execute the law. The authority to bear evidence and decide, is a plain inference from the provision in the act of 11th October, 1862, that the claim of certain classes of artisans is to be supported by affidavit, which shall only be prima -facie evidence of the facts stated. Furthermore, the general idea, that the power of investigation and de- cision is a part of the authority to be exercised by tho respective officers, is very clearly brought to view in the clause of the same act, which requires the secretary of war, upon evidence, to judge whether the exempted arti- sans have, by their conduct, forfeited the privilege. It must be noted, too, that the duties of the officers are to be discharged under rules and regulations to beprcscribed by the secretary of war. Surely, these rules and regula- tions are not contemplated to be merely the guides-ofthe subordinate officers, in performing the acts of writing down the names of the conscripts, and taking charge of them. They were destined to control and direct them in the higher, more important, and more difficult office of inquiring and judging as to the liability to conscription. The execution of the law is utterly impracticable, if there be uo authority to ascertain and'judge who are the legal subjects of conscription. With the utmost confidence, I assert the proposition, that the officers employed in the execution of the law are clothed with authority to judge what persona fall within its operation. The exercise of this authority i an official duty, to be performed under the guidance of rules prescribed by the secretary of war- A State judge, in discharging one taken as a conscript' Upon the ground ibat he was not legally liable to con? scription, would supervise and control an officer of the Confederate States, in the performance of an official duty, and in the exercise of a legal authority. He would, fur- thermore, annul the decision which such officer was au- thorized to make, and abrogate the enrollment 1 upon that decision. Th the question of amenability to conscription is within the scope of the authority exercised. An incorrect decision would bo an 642 SUPREME COURT . • i Ex parte Hill, in re Willis et nl. v. Confederate States. erroneous exercise of a subsisting authority — not a mere usurpation. The officer is perfectly within the limit of his authority, when he investigates and decides; and, though he may err, he is not an usurper. Neither the absolute invalidity of the conscription, nor a liability in trespass, would result from an incorrect decision. — Duck- worth v. Johnson, 7 Ala. 578; Savacool v. BoughtoD, 5 Wend. 170 ; Easton v. Calender, 11 ib. 90. The principle ; s illustrated in the case of a justice, err- ing the exercise of his authority to commit offenders; and of assessors, who incorrectly decide that a given per- son belongs to a class liable to be taxed. The levy of a fieri facias by a marshal of the Confederate States, upon property not belonging to the defendant, does not pre- sent an analogous question. He is simply authorized by the process to do a particular thing. He is not called upon by the law to decide anything. He has none of the attributes of a tribunal armed with authority to investi- gate and decide questions. His judgment, of course, he exercises, in determining whetln r the property upon which he levies belongs to the defendant; but, upon aprinciple of public policy, he decides at his own peril. The exer- cise of his judgment is for his own protection, and not by authority of law. His process authorizes him to levy upon the defendant's property — not to adjudge the ques- tion of the title to property. It neither requires him to construe a law, nor to decide upon evidence as to the cases that come within its operation. The law under which he acts, and which governs him, unlike that under which the enrolling officer acts, has not deemed it neces- sary to bestow authority for an investigation and quasi- judicial decision, preliminary to his action ; but, in re- quiring him' to act at his own personal peril, has expressly repudiated such an idea. No act of congress prescribing a marshal's authority, nor any construction thereof, can be drawn in question in a suit against him for the levy ot process against one, upon the property of another. The simple inquiry, in such a suit, would be, whether the particular chattel. UDder the general law governing prop- OF ALAB AMA. _64S Ex parte Hill, in re Willis et al. v. Confederate States. erty, belonged to the one person or the other; while at every step in the cases now before us, the court must ex- pound the act of congress marking out the authority of the officer. The decisions, therefore, as to the power of the State courts over the United States marshals, erring in the execution of their process, have no hearing upon the question before us. The same distinction applies to an arrest of one person, by virtue of process against another.— ^Bruen v. Ogden, C Hals. 870; Dunn v. Vail, 7 Mar. La. 41G ; Slocura v. Mayberry, 2 Wheaton, 1. The officer charged with the execution of the conscript law, not only has authority to investigate and decide, but he is required to do so according to regulations prescribed by the secretary of war. The question of these cases, then, is narrowed down to this: can a State judge, by writ of habeas corpus, supervise, control, and annul the act of officers of the Confederate States, done in the ex- ercise of authority given by the law of that government, and required to be done under regulations prescribed by the secretary of war? It is proper to approach the interesting question above stated, by an observation in reference to the relation existing between the government of the Confederacy and the government of the several States which compose it. The government of the Confederacy possesses the powers delegated by the constitution ; and the States retain their original powers, except so far as they may be affected by the grants or prohibitions of the constitution of the Con- federate States. While the Confederate government ex- ists by virtue of delegated authority, its powers, within their appropriate boundary, are not subordinate to those of the States. On the^contrary, it is expressly declared in the constitution, that the constitution, and the laws of the Confederate States made in pursuance thereof, and all treaties made under the authority of the Confederate States, shall be the supreme law of the land. The au- thority of all governments must be exercised, and must reach the subjects of its operation, through the agency of officers. The officers of the Confederate States, and of 644 SUPREME COURT Ex parte Hill, in re Willis et al. v. Confederate States. the several States, must exercise their functions, and apply the authority of their respective governments/ within the same territorial area. It is the clearest deduc- tion of reason, that the officers of neither of these dis- tinct powers, operating within the same territorial limits, and performing proper functions, can be subordinated to the other, except as authorized by the constitution, with- out detriment to the harmonious working of our compli- cated system, and peril to the rights and benefits which that system was designed to secure. The analogy (in all respects which concern our subject) between our government and that of the United States enables me to draw from the history of the past an illus- tration .of the idea which I am striving to develop. The fugitive-slave law was passed to protect and maintain a clear constitutional right of a class of citizens in the United States, whom the fluctuations of time had local- ized in less than a moiety of the States. In most of the other States, an antagonism of sentiment to that right gradually intensified into fanaticism, and extended to the persons to whom the right appertained. A right of sub- ordinatingthe authority of the officers deputed to execute that law, to the control of local State tribunals, infected by the feeling prevalent in those States, was asserted and' maintained. In many localities, the execution of the law was, by this means, prevented ; and the just claim of the people of the slaveholding States, to the maintenance of a constitutional right, was defeated. The powers of the Confederate government are given to it for the bene- fit and protection of all the people in all the States ; and the historic lesson teaches us, that the execution of the laws, passed by virtue of those powers, can not be safely left to the control of local tribunals. 'The absence of the danger, under our system, can only be argued by arro- gating to ourselves a freedom from the frailties of human nature. * The supreme court of the United States, faithful to the constitution, while every other branch of the govern- ment seemed to conspire its overthrow, through its veu- OF ALABAMA. 645 Ex parte Hill, in re Willis et al. v. Confederate States. erable ami illustrious chief-justice, announced an opinion upon the assumption by the court of Wisconsin of the authority to thwart the execution of* the fugitive-slave law in that State. The case was Ableman v. Booth, and the United States v. Booth, reported in 21 Howard, 506. The entire opinion seems to have had fhe approval of each one of the nine judges c imposing the court; which was rarely the case, where questions of constitutional law- were presented. In that opinion it is said: "Thepowersbf the genera] government, and of the State, although both exist, and are exercised, within the same territorial limits, are vet separate and distinct sovereignties. aetingseparately and independently of each other, within their respective spheres. And the sphere of action appropriated to the United States is as far beyond the reach of the judicial process issued by a State judge, or a State court, as if the line of division was traced by landmarks and monuments visible to the eye." In this extract, and in other parts of the opinion, the proposition is maintained, that neither government can pa^-s the Jine of division between their respective powers; and the court further asserts, that the United States marshal, after legally showing his authority to the State tribunal, would be bound to resist its further interference. The practical e fleet of the law, as declared in that case, is, that a State court, or officer, has no right of control over the conduct of the officers of the general government, in the exercise of an authority bestowed by its law. Nor was this principle, when announced in the case above named, at all new in the jurisprudence of the United States. I avail myself of Chancellor Kent's con- densation of the decisions upon that subject, and of the authority of his great name, in behalf of ni}' argument, in the following extract from his Commentaries: — "No Slate can control the exercise of any authority under the Federal government. The State legislatures cau not annul the judgments, nor determine the extent of the jurisdiction, of the courts of the Union. This was attempted by the legislature of Pennsylvania, and de- 646 SUPREME COURT Ex parte Hill, in re Willis et al. v. Confederate States. clared to be inoperative and void by the supreme court of the United States, in the case of the United States v. Peters, 5 Cranch, 115. * * ' * * It has also been adjudged, that no State court has authority or jurisdic- tion to enjoin a judgment of the circuit court of the United States, or to stay proceedings under : t. This was attempted by a State court in Kentucky, and declared to be of no validity by the supreme court of the United States, in McKim v. Voorhies, 7 Cranch, 279. No State tribunal can interfere with seizures of property, made by revenue officers under the laws of the United States; nor interrupt, by process of replevin, injunction, or otherwise, the exercise of the authority of the Federal officers; and any intervention of State authority, for that purpose, is unlawful. This was so declared by the supreme court, in Slocum v. Mayberry, 2 Wheat. 1. Nor can a State court issue a mandamus to an officer of the United States. This decision was made in the case of McCIuns; v. Silli- man, 6 Wheat. 598; and it arose in consequence of the supreme court in Ohio sustaining a jurisdiction over the register of the land-office of the United States, in respect to his ministerial acts as register, and claiming a right to award a mandamus to that officer, to compel him to issue a final certificate of purchase. The principle declared b} r the supreme court was, that the official conduct of an officer of the government of the United States can only be controlled by the power that created him. If the offi- cer of the United States who seizes, or the court which awards the process to seize, has jurisdiction of the sub- ject-matter, then the inquiry into the validity of the seiz- ure belongs exclusively to the Federal courts. But, i£ there be no jurisdiction in the instance in which it is asserted — as if a marshal of the United States, under an execution in favor of the United States, against A, should seize the person or property ol B — then the State courts have jurisdiction to protect the person and prop- erty so illegally invaded ; and it is to be observed, that the jurisdiction of the State court in Rhode Island was ad- mitted by the supreme court of the United States, in OF ALABAMA. 647 Ex parte Hill, in re Willis et al. v. Confederate Suites. Slocum v. Mayberry, upon that very ground." — 1 Kent's Com. 409-10-11. See, also, McNut v. Bland, 2 How. 17. As the officers authorized to execute the conscript law, have jurisdiction to examine evidence and decide upon the question of amenability to conscription, the authority of Chancellor Kent, as exhibited in the foregoing extract, is wholly opposed to the jurisdiction claimed for the pro- bate judge in these ca3es. Judge McLean, of the supreme court of the United States, holding a circuit, court in In- diana, in a charge to a jury trying a case wherein a mas- ter sought to recover damages for the taking of his slaves from his custody under a habeas corpus issued by a Michi- gan court, held, that a State tribunal could not release from custody persons held under the authority of the United States, and procured from the jury a verdict for the full measure of the master's damages. — N'orris v. New- ton. 6 McLean, 92. Judge Neisou, of the supreme court of the United States, in a charge to the grand jury, main- tallied the same doctrine in 1851. — Hurd on Habeas Cor- pus, 198. Judge Cheves, of South Carolina, in a learned opinion, reported in the 12th vol. Niles' Register, declined to take jurisdiction over the matter of the discharge of one imprisoned under process issued by the authority of the United States; and the recorder at Charleston has recently followed the principle of that decision, in refu- sing to interfere under a writ of h< person is naturally exempt from taking up arms in n, until it has beeu referred by the Utter officer." In the light of these statutes and these rules, I hold, that the petitions brought to view in the j 658 SUPREME COURT Ex parte Hill, in re Willis et al. v. Confederate States. show no ground which the judge of probate was author- ized to inquire into or try. They do not aver that the petitioners had been "held unfit for military service in the field, by reason of bodily or mental incapacity or imbecility," under rules prescribed by the secretary of war. They set forth the grounds on which they severally claim the right to be enlarged ; and when those grounds are examined, they are found wholly insufficient. They are as unimportant as the assertion of any other indiffer- ent fact; such, for instance, as that the petitioner was a white man, was the head of a family, &c. A petition, claiming enlargement on a ground so utterly frivolous as those supposed, could scarcely command the serious con- sideration of any court. I have shown above, that congress, in granting the privilege of exemption on the ground of mental or physi- cal unsoundness, has reserved to the secretary of war, and to surgeons for whose appointment it makes provis- ion, the right of passing upon- the question of unsound- ness. In other words, the statute exempts only such persons as are decided by the surgeon, or board of examin- ation appointed by the president, to be incapable of bearing arms. This, I think, was very natural and neces- sary. It brings the adjudication of this very difficult problem within the control of experts, and saves the pub- lic service from delay and detriment, which, in some instances, might result from ignorance or favoritism. It avoids inequality, by providing a stationary and uni- form board of examination, whose decisions, we must presume, would be much more likely to be right, than the opinions of any and every practicing physician who might be called to testify. Be this, however, as it may, the acts of congress give to the surgeon, and to the board of examination, the exclusive right to pass on the ques- tion of mental or bodily incapacity ; and that takes from State courts all right to inquire into the question. — See Federalist, No. 82 ; 1 Kent's Com. 390, marg. ; Houston v. Moore, 5 Wheat. 1 ; Sturgis v. Crowinshield, 4 Wheat. 193; Prigg v. Commonwealth, 16 Pet. 625 ; Moore y. OF ALABAMA. 659 Ex parte Hill, in re Willis et al. v. Confederate States. Houston, 3 S. & K. 179; Blanchardv. Kussell, 13 Mass. 16; Livingston v. Van Ingen, 9 Johns. 507 ; 2 Story's Com. § 1755-6, and note 2; Martin v. Hunter, 1 Wheat: 304 ; Ex parte Gist, 26 Ala. 156. I take a further step. The acts of congress cited in this opinion, and the instructions framed under their authority, commit the determination of the various ques- tions raised by the petitions for habeas coiyus, to certain officers and agents of the Confederate government, and declare, in terms, that the decision thus pronounced shall be final. Under these circumstances, the State leg- islatures have no authority to create a new forum, or clothe it with power to settle or retry the question of .mental or physical capacity for military service. — See Wayman v. Southard, 10 Wheat. 1; U. S. Bank v. Hal- stead, ib. 51. It would be passing strange, if State courts, in the absence of legislation/ could perform functions which the legislature can not confer upon them. Whether Confederate courts have, or can exercise, any greater powers over the question under discussion, is a subject not before me, and I will not decide it. It may be contended, however, that while ,the forego- ing argument may prove that State courts have no au- thority to discharge persons from military service, on account of physical disability, not show7i to exist in the manner pointed out by the acts of congress, and the rules is- sued by the secretary of war ; still, I have failed to estab- lish the proposition, that State courts may not, in such case, issue the writ of habeas corpus, and inquire of the legality of the imprisonment. To this I answer, first, that the petitioners for habeas corpus, by placing their claim to enlargement on a fact that is, in law, utterly indifferent and frivolous, fail to sfyow on the face of their petitions that they are illegally restrained of their liberty. The petitions do not contain the averment, common in such cases, that the petitioners are illegally restrained of their liberty. The averment is, that they are "prisoners restrained of their liberty;" and they then set forth the ground, to-wit, physical un- 660 SUPREME COURT Ex parte Hill, in re Willis et al. v. Confederate States. soundness, on account of which, they aver and say, they are "advised by counsel and believe their imprisonment To be illegal." Hence, there is a want of jurisdiction, in this, that the petitioners show themselves rightfully re- strained, yet ask the writ of habeas corpus, that the legal- ity of that restraint may be inquired into. But, secondly: Jurisdiction is the right to hear and deter- mine, a cause. — United States v. Arredendo, 6 Pet. 691, 709 ; Sheldon v. Newton, 3 Ohio State Rep. 490, 499. Jurisdiction, says Bouvier in his Law Dictionary, is "a power constitutionally conferred upon a judge or magis- trate, to take cognizance of and decide causes according to law, and to carry his sentence into execution." In the case of Rhode Island v. Massachusetts, (12 Pet. 657, 718,)- Mr. Justice Baldwin said, "Jurisdiction is the power to hear, and determine the subject-matter in controversy between parties to a suit ; to adjudicate or exercise any judicial power over them." Now, it seems to me to be clear beyond all question, that the power, or rather the absence of power, in the probsite judge, over the subject of complaint brought to view !»y the several petitions for habeas corpus, demonstrates an entire want of jurisdiction in that officer, under each and all ihe definitions above set forth. The gravamen of each petition is, that the pe- titioner is physically unable to perform military service. Jurisdiction is the right to inquire into the alleged fact of such physical disability. The probate judge lias no authority to inquire into, or try that question; there- fore, the probate judge has no jurisdiction of the causes made by the several petitions. If it be contended further, that the judge of probate had jurisdiction, because he had authority to decide, as a judge, that he would not and could not enter upon the trial 4f the question of physical disability ; the argument is just -as strong, and no stronger than would be the assertion, that every court which dismisses or repudiates a cauge for want of jurisdiction, thereby affirms its juris- diction, and disproves the truth of its own solemn sen- tence. It is rarely the case that any court attains the OF ALABAMA. 661 Ex parte Hill, in re Willis et al. v. Confederate States. conclusion it has not jurisdiction of a given subject, with- out construing some statute, or announcing some legal or constitutional principle, which deprives it ot jurisdic- tion. In the great case of Dred Scott v. Sand ford, (19 How. 393,) the supreme court of the United States decided, that neither itself nor the circuit court had juris- diction of the case made by the plaintiff; still that courfe enunciated some of the most important principles ever , decided on this continent; and was compelled to decide many of them, to reach the conclusion that it had not jurisdiction of the cas For these reasons, 1 hold, that the judge of probate las no jurisdiction of the cases made by the several etitions. In an opinion, recently delivered by the chief-justice of the supreme court of North Carolina, I find that lie con- curs in denying to the courts power to retry the question of mental or physical incapacity. When, on a former day, I delivered an opinion in these cases, I limited the operation of my remarks to cases which are in principle like the present, because there had not then been a conference between all the members of the court; and as I felt inclined to differ from the chief-justice, on some propositions contained in his opin- ion, I purposely withheld my views until a full consulta- tion with our absent brother could be had. That consul- tation has now been had; and although I am aware that, in what I am about to say, I go beyond the wants of the present case, I feel it a duty we owe to the public, that I make known certain other conclusions at which we have arrived. A majority of the court, holds, that the S nrts have jurisdiction of the writ of habeas corpus t in all cases which come within either <>i' the following classes : First) where the petitioner claims that the c mseript laws do not reach him, or authorize his enrollment as a conscript, because he is under or over age, uot a white man, or not a resident of the Confederate ■/>(/, where tho 662 SUPREM E COURT Ex parte Hill, in re Willis et al. v. Confederate States. party claims that he stands absolutely and uncondition- ally exempt from military service, because he belongs to some sect or class, which the act of congress declares operates an exemption ; such, for example, as Friends who have complied with the law, and officers, judicial and executive, of the State and Confederate governments. 'Questions may arise under the regulations which permit the putting in of substitutes, over which I would not hesitate to exercise jurisdiction ; but, for reasons satis- factory to myself, I prefer not to define, at present, the extent to which I would exercise such jurisdiction. Wherever, as in the present case, the privilege of ex- emption is granted on conditions, the adjudication of which is expressly reserved to certain officers named or provided for; or, where the acts of congress declare that the exemption shall cease and determine on the happening of certain events, to be judged of and determined by the sec- retary of war, or other designated officer, I hold, that such condition is a legitimate limitation on the boon of exemp- tion, which congress had the clear right to impose*; and that State courts have no authority to supervise the ac- tion of such officers, thus provided for and exercised, or to retry any question thus exclusivelj' conferred on an officer of the Confederate government. To entertain jurisdiction in such cases, would lead to the most embar- rassing and disastrous collisions between the authorities of the two governments. I am of that school who believe, that the Confederate government is one of limited and defined powers, and that great care should at all times be exercised, to pre- vent it from enlarging its powers by construction. Our compound system of government, perhaps, exposes the States to encroachments upon their reserved rights, more than any other form of constitutional government could do. This grows in part out of the fact, that, within the sphere of their operation, the constitution of the Con- federate States, and the acts of congress passed pursuant thereto, are the supreme law of the land. The constitu- tion, in addition to its enabling clauses, which confer OF ALABAMA. 663 Ex parte Hill, in re Willis et al. v. Confederate States. powers on the government, contains several restraints upon State authority. Under these clauses, an appellate jurisdiction' was built up in the supreme court of the United States, which, in my opinion, was, in some in- stances, carried to an extent of doubtful propriety. I will not discuss this question here, further than to say, that I' think many of the imputed errors which crept into the old .system grew out of the mistaken theory of the oneness of our distinct governments, and the too great subordination of tho State to the Federal government. One source of alleged encroachment of Federal upon State authority has been removed, by a wise amendment of the second section of the third article of the constitu- tion ; and other amendments have also shorn our young government of much of the power which the old one wielded to our detriment. I hope that, when the Con- federate judiciary shall be fully organized, the heresies which aided in overthrowing the old Union, will not be allowed to enter the sanctuaries of the new. I do not mean, in what I have said, to question the distinguished ability which has, at all times, marked the long and brilliant history of the Federal supreme court. My precise meaning is, that, in my judgment, false views of the powers of the Federal government, and especially of the relations which the States sustain to that govern- ment, found utterance at au early day; and that the court, in later years, although it burst some of the fetters by which early precedent had sought to confine it, left many of those errors unreversed. Let us avail ourselves of the much good bequeathed to us by the many able minds which have adorned that bench at every period of its history; but let us avoid the errors which time and experience have made manifest. I have said that an early error crept into our system, as to the relation which the Federal and State govern- ments sustain to each other. In my opinion, we should struggle, from the very threshold of our existence, to keep the powers and functious of the two governments as distinct as possible. The dividing line of jurisdiction, 661 SUPREME COURT Ex parte Hill, in re Willis et al. v. Confederate States. where no territorial boundary marks it, must, in the na- ture of things, be sometimes difficult of ascertainment. Still, the line exists, and, when discovered, must be respected. It is history, now made sadly impressive by the ocean of noble blood which it has caused to flow, that by transgressions of this boundary line, sometimes by the Federal, and sometimes by State governments, our once prosperous and happy country is now the thea- tre of a war of almost unprecedented malignity and atrocity. That enlightened jurist and venerated patriot, Chief- Justice Taney, speaking for the court, felt and ex- pressed the necessity of preventing encroachments by one jurisdiction upon the other ; bat his counsels came when fanaticism had well nigh matured its parricidal plot, the culmination of which is now converting portions of our rich domain into a desolation. — See Ableman v. Booth, 21 How. 506; Dred Scott v. Sandford, 19 ib. 393. The jurisdictional area of each government, should be kept distinct — restraining the Confederate government within the boundaries of its delegated authority, and not allowing the State governments to trespass on Confede- rate jurisdiction. The powers conferred on that govern- ment by the Confederate constitution, the laws enacted under its authority, and treaties made pursuant thereto, are the supreme law of the land. Let us respect and obej' them as such. Let us not weaken or destroy our Confederate power, by embarrassing that government in the manly exercise of those functions with which the States themselves have clothed it. This will neither destroy nor impair the sovereignty of the several States. They are not despotisms. For certain general purposes, they have conferred on the Confederate government cer- tain attributes of their sovereignty ; but they retain the others. They have thus become constitutional, instead of absolute sovereignties. This no more destroys State sovereignty, than does the surrender of certain attributes of natural liberty destroy civil liberty. In upholding and maintaining each government in the exercise of its constitutional authority, each will necessarily be kept OF ALABAMA. 665 Ex parte Stringer. within the appointed orbit of its powers. This, I hum- bly conceive, would effectually prevent all collision of Jurisdictions. It need not, and would not, interdict the comities and kind offices which belong to good neighbor- hood. These should be cultivated and strengthened, as the life-blood of our confederate existence. R. W. Walker, J., not sitting. I Ex Part* STRINGER. [application for habkas cop.pi;b.J I.. Conscientious scruples against bearing anus, as ground of exemption i military service. — A person Who "conscientiously scruples to bear arms," may claim exemption from military duty, under the provisions of the State constitution, (art. iv, militia, \ 2,) upon pay- ment (if an equivalent for personal service; yet he is not entitled, on that account, to exemption from military service in the armies of the Confederate States, unless he belongs to one of the religious denominations specially exempted by the acts of congress. Application by Levi M. Stringer, for the writ of habeas corpus, to obtain his discharge from the custody of Major \V. T. Walthall, commandant of the camp of instruction near Talladega. The petitioner alleged, that he was held in custody at the said camp of instruction as a conscript; that he was a regular member of a "Christian church", and had conscientious scruples against bearing arms ; that he was therefore exempt from military service, under that provision of the State constitution which declares, that "any person who conscientiously scruples to bear arms, shall not be compelled to do so, but shall pay an equiva- lent for personal service," and claimed the right to pay an equivalent for personal service, as therein provided; that he had applied to the Hon. John T. IIeflin, one of 43 666 SUPREME COURT Ex parte Stringer. the circuit judges of the State, for the writ of habeas cor- pus, churning his right of exemption from military service on the ground above stated ; and that said judge, on the hearing of the writ, had refused to discharge him. L. E. Parsons, for the petitioner. STONE, J.— [March 4, 1863.]— The acts of congress, known as the "conscript laws," are constitutional — Ex parte Hill, in re Willis et at, at the present term. Those acts authorize the enrollment and cotscription of citizens within the conscript age; and this, without invocation of State authority. The power of the Confederate govern- ment to conscribe the citizen, is derived from the Con- federate constitution, and is not at all dependent on the constitution of the State of Alabama. The petitioner does not show a case which entitles him to exemption from military service under the acts of congress. Con- scientious scruples against bearing arms, unless the party entertaining them belongs to one of the religious sects mentioned in the statute, presents to the courts of the country no legal ground for declaring the petitioner ex- empt from military duty. As the opinion of the entire court is not yet announced, nor indeed formed, on the broad question of jurisdiction of State courts in cases like the present; — and as we feel no hesitation in refusing the present application on the merits, we place our refusal on the ground stated above. The prayer of the petitioner is denied. li. W. "Walker, J., not sitting. OF ALAJ3 AMA. 667 Ex parte Hill, in re Armistcad v. Confederate States. Ex Parte HILL, in Re ARMISTEAD vs. CONFED- ERATE STATES. [application for prohibition TO PKOBATE JUDGE. J Ex Parte DUDLEY. [APPLICATION FOR MANDAMUS IN MATTER OF HABEAS CORPUS.] 1. Jurisdiction of State courts (o discharge enrolled conscript from cus- tody of Confederate States officer. — On petition for habeas corpus, by a person who, being liable to military service under the act of con as approved April llith. 1862, commonly called the " first con- script law," procured and placed in bis stead a substitute, and' was thereupon discharged ; but, after the passage of the "second con- script law," approved September 27th, 18(12, was again arrested, by the enrolling officer, on the ground that his discharge had be- come inoperative, because, his substitute was personally liable to service under the latter law,— the State court or judge to whom the application for the writ is made, has jurisdiction to determine the question of fact, whether the petitioner placed in his stead a substitute, and was thereupon discharged ; and also the question of law, whether such discharge exempted the petitioner from lia- bility to service under the latter law, his substitute being within the conscript age as therein specified. (A. J. Walker, C. J ..dissenting.) 2. Same. — The commandant of conscripts, _at one of the camps of instruction, having vacated, on the ground of fraud, a discharge procured by a person who, being liable to military service under the "conscript laws" of congress, had furnished a substitute in his stead; mid the decision of the commandant having been ap- proved by the secretary of war, — a State court or judge has no ju- risdiction, on habeas corpus or otherwise, to revise or control the action and decision of the commandant, at the instance of the pei son whose discharge is thus vacated, on the ground that ex-partc affidavits were received against him on the trial, or that be was not notified of the time and place of taking testimony, or that he was not allowed an opportunity to cross-examine witnesses. (R. W. Walker,.!., dissenting.) 3. Liability of principal to military service under "second conscript law," having furnished substitute under first. — The Oth section of the "first conscript law" of congress declaring, that persons not liable to military service "may be received as substitutes for those who are, 668 SUPREME COURT a&& !&^ ti Ex parte Hill, in re. Armistead v. Confederate States. under such regulations as may be prescribed by the secretary of war"; and the general orders (No. .17) published by the secretary of war on the 19th May, 18(32, providing, in reference to exemp- tions procured by furnishing substitutes, that "such exemption is valid only so long as the said substitute is legally exempt,"— a per- son who was liable to conscription under said law, and who, after the publication of said general orders, placed in his stead a sub- stitute, who was between the aires of thirty-five and forty years, and thereupon obtained his discharge, became again liable to con- scription, on the passage of the "second conscript law," and the president's call for men between the ages of thirty-five and forty years ; and the same principle applies to persons who furnished substitutes after the publication of the general order (No. 64) dated September 8, 18G2, which declares, that " a substitute becom- ing liable to conscription renders his principal also liable." (Per tot cur.) These two cases, though decided together, were argued and submitted at different times. The first was an appli- cation by L. II. Hill, an officer of the provisional army of the Confederate States, and the enrolling officer of the district embracing the county of Montgomery, for a writ of prohibition to the probate judge of said county, enjoin- in;,'' and restraining him from further proceedings in the matter of a petition for habeas corpus, sued out before him by YV. B. Armistead, who sought thereby to procure his release from the custody of said enrolling officer, on the ground that lie had obtained a discharge from military service by placing a substitute in his stead. This appli- cation was made on a regular motion day of the January term, 1863, and was submitted at the same time with the last preceding case: being argued at the bar by P. T. fcJAYRE, on behalf of the Confederate States, and by S. F. Rice and J no. A. Elmore, with whom was A. 13. Clith- \ if! SHALL, for the petitioner Arrnistead. The other case was an application by. Charles II. Dud- ley, for a mandamus, or other remedial writ, directed to the Hon. N". W. Cocke, the chancellor of the southern chancery division, by which the petitioner sought to ob- tain a full hearing on habeas corpus before said chancellor, and a discharge from custody as a conscript. All the OF ALABAMA. 669 Ex parte Hill, in re Armistead v. Confederate States. material facts of the ca.se are stated in the opinion of Stone, J. The opinions were delivered, at different times, daring June term, 1 STONE, J. — The precise line of division which scpa- •ratcs State and Confederate judicial authority, is not al- ways easy of expression, if indeed it be easy of ascertain- ment. Operating, (within the sphere of its appointed powers,) as each government confessedly does, upon the same territorial area, and upon the came persons, it re- quires, in some cases, the closest scrutiny to prevent encroachment by one power upon the other. If either government, in the performance of its functions, by mis- take or otherwise, transgress the boundary line which separates them, and trespass on the domain of the other, such conduct does not conclude the other government, nor estop it from asserting and enforcing its own rights. On the other hand, if either government, or its officers, act within the sphere of its powers, although such action may be. erroneous and reversible, it is not, except in cer- tain specified cases, within the power of the other gov- ernment to control its action thus performed, nor to cor- rect the errors that may be committed. The distinction is between a want of authority over the person or thing, and ati erroneous exercise of authority possessed. If the subject-matter be within the legal cognizance ot the offi- cer acting, no matter how far that officer may err in ad- judicating or applying the law to such subject-matter, the redress, if any, musi, as a general rule, be sought in the courts of the government whose officer has committed the error. But, if the officer exercise authority over a subject or pei.vm not within his official cognizance, the judicial officers of the other government may give redress* if the subject-matter be within tlu3 general scope of their jurisdiction. The distinction attempted to be drawn above may be illustrated by the two "locum v. Mayberry, (2 Wheat. 1,) and McClung v. .silliman, (6 Wheat. G70 SUPREME COURT Ex parte Hill, in re Armfctead v. Confederate States. The case of Slocurn v. Mayberry arose under the 11th section of the embargo law, approved April 25, 1808, (2 U. S. Stat, at Large, 501,) which authorized the collec- tors of the customs "to detain any vessel ostensibly bound with a cargo to some other port of the United States, whenever in their opinions the intention is to vio- late or evade any of the provisions of the acts- laying art embargo, until the decision of the president of the United States be had thereupon." Under this act, the collector of the port of Newport, Rhode Island, had a vessel, with its cargo, seized by Slocum, the surveyor of the port; and Mayberry, the owner of the cargo, brought his action of replevin for the same in the State court of Rhode Island. The question was, had the State court jurisdic- tion ? The supreme court of the United States, Chief- Justice Marshall delivering the opinion, decided, that if the question had arisen on the seizure of the vessel, the State court would have had no jurisdiction ; but, inas- much as the collector had no power or authority to detain the cargo, the act of congress not making provision for its detention, the State court had jurisdiction of the case. In the case of McClung v. Silliman, the attempt was made to control, by mandamus from a State court, the official conduct of a register of a land-office of the United States, in the matter of a pre-emption claim. The court ruled, that the State court had no authority to direct or govern the official conduct of the register of the United States land-office. So, it has been ruled, that if a marshal of the United States levy on goods under process against A, and B claim that the goods are his property, in a suit by B against the marshal, State courts have jurisdiction of the question, whether the property belongs to B or to A. — Dunn v. Vail, 7 Mar. La. 41G; Bruen v. Ogden, 6 Hals. 370. See, also, United* States v. Peters, 5 Cranch, 115, 135 ; McKim v. Voorhies, 7 Cranch, 279; Diggs v. Wol- cott, 4 Cranch, 179 ; Kitteridge v. Emerson, 15 N. II. 227 ; McNutt v. Bland, 2 How. U. S. 9. Chancellor Kent's statement of the principle . under OF ALABAMA. A 671 Ex parte Hill, in re Armistead v. Confederate States. discussion is as follows: "If the officer of the United States who seizes, or the court which awards the process to seize, has jurisdiction of the subject-matter, then the inquiry into the validity of the seizure belongs exclu- sively to the Federal courts. Bat,' if there be no juris- diction in the instance in which it is asserted — as if a marshal of the United States, under an execution in favor of the United States against A, should seize the person or property of B — then the State courts have jurisdiction to protect the person and the property so illegally in- vaded." Springing out of the principles settled in the cases of Slocum v. Mayberry, and McOlung v. Silliman, supra, I think the following propositions may be laid down : First: Whenever an officer, under authority in the premises conferred by the government under which he is acting, is in the performance of official duties ; and, in the performance of such duties, there is expressed, or necessarily implied, the right to decide upon qualifica- tions, or to draw inferences from facts, then any error of conclusion, or of judgment, into which he may fall, is not subject-to revision or correction by the officers of the other government, nor is the officer acting subject to the coercive control thereof, unless the constitution or laws give to the officers of the latter government such control or power of revision. Second: Whenever the question is—not whether the officer correctly decided or acted in a matter within the scope of his power and jurisdiction — hut, the inquiry is, has he erroneously applied his authority or jurisdiction to a person or subject-matter not within its scope, then the courts of the other government, if the subject and person be of a class which comes within their jurisdic- tion, may inquire id' and determine the question of such erroneous application of authority, unless the law, in its terms, inhibit such inquiry. There is scarcely any human action that is so entirely independent of all others; that in its performance it docs not presuppose the existence of Borne other fact, past or 672 SUPREME COURT Ex parte Hill, in re Armistead v. Confederate States. present. These do not necessarily inhere in the subject- matter in hand, but are the accidents of the particular case. All actions are shaped or moulded, more or loss, by their accidents, and the decision which Jthe actor pro- nounces upon them. Slocum, iu seizing the vessel and cargo, construed the act of congress for himself, and at- tained the conclusion, that it was his duty to detain the cargo as well as the vessel. In this, he traveled beyond bis authority. The act of congress clothed the collector with authority to decide, in the first instance, whether it was the intention to violate or evade any of the provis- ions of the acts laying an embargo ; and if, in his opinion, such was the intention, he was authorized to detain the vessel. He had no authority to detain the cargo. The question of detaining the cargo did. not inhere in, or per- tain to, the other and main question, namely, was there an intention to violate or evade the law? He erred iir deciding this question of law. So, in the case of the mar- shal who seized the goods of B under process against A. He went beyond his authority when he seized the goods of B, and by that act became a trespasser. True, in seiz- ing the goods of A, he must necessarily determine for himself, in the first instance, what goods belonged to A ; but the decision was rendered necessary only by the acci- dent that the goods of A and B were in a state of confu- sion. This is no more than the case of C and D, coter- minous land-proprietors, between whom the boundary is open and unascertained : if C, whether by mistake or oth- erwise, go over the line upon the lands of 1), and there cut timber, he is a trespasser, and it does not excuse him that, in endeavoring to find his own land, he must neces- sarily decide where the boundary is. The case of McOlung v. Sillimap, supra, illustrates the other phase of this question. In that case, the effort wa; made, through the instrumentality of a State court, to compel the register of the land-office to receive proof of the legal acts, and to prepare and furnish the documents which should initiate the applicant's claim to a pre-emp- tion interest in a tract of land. The register refused the OF ALABAMA. 673 Ex parte Hill, in re Armistead v. Confederate States. application. It will be observed, that the register was fin officer of the United States, and was specially charged with the hearing of such applications, and with receiving and acting on the evidences on which such claims were based ; and that all this was done under laws and rules enacted and established by t'he government of the United States. These several acts were part and parcel of the functions with which the la,nd-officer was expressly clothed, and pertained naturally an I universally to the service in which he was engaged. They were not the accidents of the case, but. were important functions committed to him, which were called into exercise >in every application for pre-emption made io his district. The supreme court of the United States denied the jurisdiction of the State court to control the action of the register by mandamus, saying: ll . The question in this case is as to the power of the State courts over the officers of the general govern- ment, employed in disposing of that land, under the laws passed for Jiat purpose. And here it is obvious, that he is to be regarded, either as an officer of that govern- ment, or as its private agent. In the one capacity or the other, his conduct can only be controlled by the power that created him." The precise facts of Mr. Armistcad's case, as made by the petition for habeas corpus, are as follows: In August, 1862, the petitioner, being liable to conscription, pro- cured and placed in the service of the Confederate States a substitute, who was over thirty-live years of age; said substitute was accepted by the proper military authori- ties, and was mustered into the service, and thereupon the said Armistead received his discharge. The enroll- ing officer, contending that the probate judge has no ju- risdiction of the questions presented bv Mr. Armistead's petition, makes application to us [or the writ of prohibi- tion to that officer. The questions which arise on the face of the petition for habeas corpus^ are: First, was a substitute for Mr. Armistead accepted by the proper government offic< 674 SUPREME COURT Ex parte Hill, in re Armistead v. Confederate States. 4 — • " " — and did he (Mr. Armistead) receive his discharge ? Second, is the legal effect of that discharge such as to exempt Mr. Armistead from conscription under the "act to amend an act entitled 'an act to provide for the public defense,' approved April 11. 1862," commonly called the "'second conscript act?" — C. S. Statutes at Large, 2d session of 1st Congress, p. 61. No question is made in this case on the fairness of the transaction by which lf it. I do not say 'hat congress can abridge Or qualify the jurisdiction of the State courts. The want of authority in the State tribunals, to supervise and control the exe- 688 SUPlfcEME COURT Ex parte Hill, in re Armistead v. Confederate States. eutive officers of the Confederate States, in the exercise of their appointed functions, by the writs of injunction, replevin, habeas corpus, or. other process, results from the delegation in the constitution of an unqualified power to execute the laws which congress may enact, and not from any denial of such authority hy act of congress. If a State court can not correct, under a writ of habeas corpus, the errors of the enrolling officers engaged in enforcing the law of conscription, it is because .the constitution bestows the power to execute the law without any quali- fication that it shall be done in a manner consistent .with the judgment of a State judge, and not because congress has suspended, or can suspend, the writ of habeas carpus. The constitutional power of executing the laws of con- gress, whether they touch the person or the property of the citizen, can not be subordinated to the authority of a State tribunal, by its supervision and control of the conduct of the executive officers aating within the area of their jurisdiction. This is an inevitable deduction from the proposition, that the general government is, within the sphere of its delegated powers, co-ordinate with the respective States, and their equal; and that, within the area of its appointed attributes, its authority is as paramount as that of the States within the bound- ary of the powers not delegated nor surrendered. No ingenuity can successfully controvert this proposition. It rests for its basis upon the unqualified character of the grants of authority by the constitution. It has the re- peated sanction of Mr. Calhoun, who, for years, applied' hi3 logic and learning to the investigation of the relations of the States with the government of the United States; who stood, in life, the vigilant guardian of the rights of the States, and a foe to the encroachments of the Federal government ; and who, dying, has left in his " Discourse on the Constitution and Government of the United States," his views as matured by experience and pro- tracted application to the subject. From this posthu- mous work I make the following extract: " The government of the States sustained to the for- OF ALABAMA. 689- Ex parte Hill, in re Armistead v. Confederate States. mer [the confederacy which preceded the constitution of the United States] the relation of superior to a subordi- nate, — of the creator to the creature; while they now sustain to the latter [the government of the Uuited States} the relation of equals or co-ordinates. Both govern- ments — that of the United States and those of the separate States — derive their powers from the same source, and were ordained and established by the same authority ; the only difference being, that in ordaining and estab- lishing the one, the people of the several Stales acted with concert, or mutual understanding; while in ordain- ing and establishing the others, the people of each State acted separately, and without concert or mutual under- standing, as has been fully explained. Deriving their respective powers from the same source, and being or- dained and established by the same authority, the two gov- ernments, Slate, and Federal, must, of necessity, be equal in respective spheres; and both being ordained and established by the people of the States respectively, each for itself and by its own separate authority, the constitu- tion and government of the United States must, of neces- sity, be the constitution and government of each, as much ho as its own separate and individual constitution and government; and therefore they must stand, in each State, in the relation of co-ordinate constitutions and governments." — Pages lb 6-1(37. "It is obvious from this sketch, brief as it is, taken in connection with what has b« eu previously established, that the two governments, general and State, stand to each other, in the first place, in the relation of parts to the whole ; not, indeed, in reference to their organization or functions, for in this respect they are perfect ; bui in reference to their powers. As they divide between them the delegated powers appertaining to the government, and as of courst each ' what the other , it naturally requires the two united to constitute one entire g< iverumeut. thin the sphm of thi then ihcy stand with istain the relation 690 SUPREME COURT Ex parte Hill, in re Armistead v. Confederate St of co-ordinate governments, has been fully established. As co-ordinates, they sustain to each other the relation which subsists between the diflerent departments of gov- ernment — the executive, the legislative, and the judicial, and for the same reason. These are co-ordinates, because each, in the sphere of its power ■ . al to, and independent of the others, and because the three united make the gov- ernment. The only difference is, that, in the illustra- tion, each department by itself is not a government, since it takes the whole in connection to form one; while the government of the several States respectively, and that of the United States, although perfect governments in themselves, and in their respective^ spheres, require to be united, in order to constitute one entire government. They, in this respect, stand as principal and supplemental, while the departments of each stand in the relation of partsto the whole." — Pages 197-198. ••That they are both governments, and as such possess all the powers appertaining to government, within the sphere of their respective powu-s — the one as fully as the other — can not be denied. - ' — Page 241. See, also, pages 226, 212, 213, 252, 253. The preamble to the constitution of the United States represents that instrument to be ordained ami established by "the people of the United States." The preamble to the constitution of the Confederate States represents it to he ordained and established by "the people of the Confederate States, each acting in its sovereign and inde- pendent character." The latter is precisely what Mr. Calhoun construed the former to be. — Discourse on Con. and Gov. of U. S., p. 128. The pertinency of Mr. Cal- homi's observations to the question in hand is, therefore, not affected by the difference in language just noticed. Under our compound system of government, the gen- ral government and the States are the peers of each other; and the authority of each, within the scope of its powers, is paramount pver the other. To each there is a like negation of right to control the other in the exercise of its authority. The State cau no more control the gen- OF ALABAMA. 691 Ex parte Hill, in ro Armistead v. Confederate States. eral government in the exercise of its power* through its appointed agents, than can the general government con- trol the States in the exercise of their respective powers. The courts of the general government are limited in their jurisdiction. Aside from this consideration, and as a mere question of governmental power, the State tribunals can no more release from the custody of the executive officers of the general government one taken as a soldier, because, in the judgment of such tribunal, such person was not within the operation of the act of congress, than could a tribunal of the general government take from the custody of a State officer one taken as a State soldier, because, in its judgment, such person was not within the operation of the act of the State legislature. This must be so; otherwise, the two governments are not co-ordi- nate or equal. Chief-Justice Taney, speaking the unanimous opinion of the judges of the supreme court of the United Sti but carried the propositions of Mr. Calhoun to their obvi- ous and necessary result, when, in the case of Ablemau v. Booth, (21 How. 516,) he penned the following m'ii- tence : "The powers of the general government and of the States, although both exist, and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and independently of each r within their respective spheres. And the sphere of action appropriated to the United States is as far beyond the reach of the judicial process issued by a State judge, as if the line of division was traced by landmarks and monuments visible to thee;. While this sentence has been criticised for even its guarded application of the term \ttj to the government of the United Slates, and its import, but the embodiment of a great principle, obviously dcducible from the teach- ings of Mr. ( 'allumn. The principle for which I .(intend, is not only - tained h. ing drawn from the relation of the gov- ernment aud ( Jonfederate, to each other, 1 , er id 692 SUPREME CO URT Ex parte Hill, in re Armistead v. Confederate States. bound to respect, if not to obey. The embargo act of 1808 authorized collectors of customs to detain vessels, whenever in their opinion there was an intention to vio- late the provisions of the act ; but it was silent as to the cargo. A vessel and Us cargo having been detained, Chief-Justice Marshall held, that an action could be maintained in a State court for the recovery of the cargo, because the act of congress gave no right of seizure or detention as to it; but that an action for a vessel torti- ously seized could only be brought in the Federal courts ; and that the officer having a right to seize for a supposed forfeiture, the question, whether that forfeiture had been actually incurred, belonged exclusively to the Federal courts, and could not be drawn to another forum. — Slo- cum v. Mayberry, 2 Wheaton, 9. The opinion says : "Had this action been brought for the vessel, instead of the cargo, the case would have been essentially different. The detention would have been by virtue of- an act of congress, and the jurisdiction of a State court could not have been sustained. But the action having been brought for the cargo, to detain which the law gave no authority, it w&3 triable in the State court." If there were no law authorizing conscription, and yet a citizen had been conscribed into the army, a case would be presented analogous to that over which the jurisdic- tion of the State tribunal was maintained in Slocuni v. Mayberry. The case actually presented is one where there is a law authorizing conscription, and it is alleged that the proper officer has erred in the execution of the law, and wrongfully taken a citizen. This case is strictly analogous to that o(' which, it is declared, the State court has no jurisdiction. It is analogous to the case which would have been presented, if a collector of customs, authorized to seize vessels characterized by an intent to violate the law, had erred, and seized one not so charac- terized. In reference to such a case, the opinion above referred to declares, that the question, whether the for- feiture has actually been incurred, belongs exclusively to the Federal courts, and can not bo drawn to another OP ALABAMA. 693 Ex parte Hill, in re Arrnistead v. Confederate States. lorum ; and tbat it depends upon the final decree, whether the seizure shall be deemed rightful or tortious. So, in the case in hand, the act of congress empowers the officer to coiisci'ibc persons characterized by certain qualities of age and capacity; and the question, whether the persons COnscribed possess those qualities, belongs, so far as the controlling of the officer is concerned, exclusively to the Confederate courts, and can not be drawn into another forum. By the supreme court of the United States it has been held, that a mandamus, to compel the register of a land- office to perform an official duty as to an entry of the public land, could not be issued by that court, because it could not exercise original jurisdiction over such a sub- ject. It was held, also, that the writ for such purpose could not be issued by the circuit court of the United States, notwithstanding the judicial power of the United States under the constitution extended to such a case. This latter decision is put upon the reason, that congress had not, by the judiciary act, delegated the judicial power of the government to control the register of the land- office by mandamus. Although it thus resulted, that no judicial tribunal of the United States, under the existing legislation, could give to an it jured party redress, by com- pelling an officer to permit an entry of land, it was decided, that a State court had no jurisdiction over the subject, and an attempt to exercise it was rebuked, as "an instance of the growing pretensions, of some of the State courts over the exercise of the powers of the gen- eral government." — Mclntyre v. Wood, 7 Cranch, . r <04 ; McClungv. Siliiman, 2 Wheat. 369; McCluog v. Silli- man, 6 Wheaton, 698. See, also, Marbury v. Madison, 1 Cr. 137; Lytle v. Arkansas, 22 How. 193; Barnard v. Ashley, 18 How. 45. The question is the same, whether the injury results from an error of omission or com- mission ; and the principle which governs in the former case, must apply in the latter. Other cases of like char- acter are collated by Chancellor Kent iu his Commenta- 694 SUPREME COURT Ex parte Hill, in re Armistead v. Confederate Stat. ries, as will be seen by reference to an extract from that work made in my former opinion. The principle which I assert is most clearly sustained and forcibly illustrated by the eases growing out of the fugitive-slave law. The act of 1850 authorized the recla- mation of fugitive slaves, by the procurement of a warrant from a commissioner, or by seizing and taking the fugi- tive before a commissioner, whose duty it was to grant a certificate, authorizing his removal to the State from which he escaped.— Brightley's Digest, 29b', § 8. The proceeding before the commissioner, under that law, was summary, and ex-parie, and might be based upon affidavit made in the State from which the fugitive escaped. The courts of the United States held, that a State court had no power to interfere with the owner or marshal engaged in executing that law; and the South applauded the decisions, .as' asserting the only principle by which an execution of the law could be had in a community made, by fanatical opposition to slavery, unmindful of constitu- tional duty. The principle asserted in those cases, arising under the fugitive-slave act, is identical with that which I am endeavoring to maintain. It is a well-established doctrine, that where two courts have concurrent jurisdic- tion, the exercise of the jurisdiction by one of the courts ousts the authority of the other. It is admitted, there- fore, that the denial to a State court of jurisdiction as to a particular subject, over which a Federal court has com- menced to exorcise its authority, affords no argument against the existence of a concurrence of jurisdiction. If, therefore, it were true, that the commissioner, in issu- * ing a warrant- for the seizure of a fugitive slave, acted as a court, and exercised a part of the judicial power of the United States, the negation of all authority in the State courts to interfere with the execution of the process might be referred to the doctrine just stated. But the commis- sioner who issued a warrant for the seizure of a fugitive slave, did not act as a court, or exercise judicial author- ity. His authority was in its nature judicial, or quasi- judicial, as contradistinguished from judicial authority. OF ALABAMA. 695 Ex parte Hill, in re Armiatead v. Confederate States. It is precisely the character of authority which the enroll- ing officer exercises under the conscript law, when he determines the question of liability to conscription. Chief-Justice Pearson, of North Carolina, in the mat- ter of Bryan, before the supreme court of that State, argued against the proposition, that the officer executing the conscript law exercised g^asi'-judicial power, upon the ground that the vesting of such authority in an officer would break dov\ n the distinction, which the constitution carefully draws, between the executive and judicial departments of government. In this argument, it seems to me, the learned chief-justice overlooks the difference between judicial authority, and that which is quasi-]\idi~ cial, or merely judicial in its nature. The bestowment of any part of the judicial authority of the United States, upon an officer appointed rmd qualified as were the com- missioners who were empowered to issue warrants for the seizure of fugitive slaves, aifd to authorize their return to the States from which they escaped, would have infringed the provision of the constitution which pre- scribes the mode of appointing judicial officers, and their, tenure; and the proceedings before such commissioners would probably have been violative of the constitutional provision on the subject of jury trials. The constitution- ality of the fugitive-slave law can only be maintained upon the ground, that the commissioner is not a judicial officer, and docs not exercise judicial power. Upon that ground, it has been maintained by the courts of the United States, and by some of the Suite courts. — Prigg y. Commonwealth, 16 Peters, 622; Opinion of Judge Cheves, of South Carolina, in Rhodes' case, 12 Niles' Register, 264; Charge of Judge Nelson to the grand jury for the southern district of New York, 1 Blatchford, 635, 644 ; Ex parte Robinson, 6 McLean, 355, 35'J ; Sims' case, 7 Cush. 302-808 ; Ex, parte Jenkins, 2 Amcr. Law Reg. 149; Ex parte Gist, 26 Ala. 156. See, also, United States v. Ferriera, 13 Howard, 40, 51 ; Gaines v. Harvin, 19 Ala. 498. 1 make the following extract from the above mentioned «96 SUPREME COURT Ex parte Hill, in re Armiatead v. Confederate States. charge of Judge Nelson : "It has been made a question upon this act [the fugitive-slave law], whether or not it was competent for congress to confer the power upou the United States commissioners to carry it into execution. As the judicial power of the Union is, by the constitu- tion, vested in the supreme court, and in such inferior courts as congress may from time to time establish, the judges oif which shall hold their offices during good beha- viour, it has been supposed that the power to execute the law must be conferred upon these courts, or upon judges possessing this tenure. It is a sufficient answer to this suggestion, that the same power was conferred upon the State .magistrates by the act of 1793; and which, in Prigg v. Commonwealth of Pennsylvania, was held to be constitutional, by the only tribunal competent under the constitution to decide that question. * * * The judicial power mentioned in the constitution, aud vested in the courts, means' the power conferred upon courts ordained and established by and under the consti- tution, in the strict aud appropriate sense of that term — courts that compose one of the three great departments of the government, prescribed by the fundamental law, the same as the other two, the legislative and the execu- tive. But, besides this mass of judicial power belonging to the established courts of a government, there is no inconsiderable portion of power in its nature judicial — gwasi-judicial — invested from time to time, by legislative authority, in individuals, separately or collectively, for a particular purpose and limited time. This distinction in respect of judicial power will be found running through the administration of all governments, and has been acted upon in this since its foundation. A familiar case occurs in the institution of commissions for settliug land claims, and other claims against the government. * * * * The same answer may be given, also, to the objection founded upon the seventh amendment of the constitution, which provides that, in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. * * * The OF ALABAMA. 697 Ex parte Hill, in re Armistead v. Com federate States. proceeding contemplated by the clause of the constitution in question, is not a suitat common law within the mean- ing of that amendment. It settles conclusively no right of the claimant to the service of the fugitive, except for the purpose of the removal to the State from which he or she fled ; no more than the proceeding in the case of a fugitive from justice, for the purpose of removal, settles his guilt. The question of right to the service in the one case, and of guilt in the other, is open to a final hear- ing and trial in the States whence the fugitives escaped." Language equally pointed and clear will be found by reference to the other authorities above referred to. Our own court, in Gaines v. Ilarvin, (supra,) used the follow- ing language: ,: We not understand by this provision in the constitution, that it was the intention of its framers to deny to the legislature the power to confide to minis- terial officers, who do not constitute a part of the judici- ary properly' so called, many duties involving inquiries in their nature judicial. The practice of this, as of all other governments having their executive, judicial, and legisla- tive departments separate and distinct, very clearly shows that, in the administration of the laws, inquiries partak- ing of the nature of judicial investigations are confided to persons other than judges, whose acts have never been questioned on constitutional grounds. Auditors ami commissioners appointed in certain cases, and for specific but temporary purposes; commissioners of roads and mue, op for the allotment of dower; the sheriff, in executing writs of inquiry in certain cases; so, also, the masters in chancery, the commissioner of patents of the United States, and commissioners under the late act of congress in regard to the extradition of fugitive slaves, all perform duties in their nature judicial; but we have seen uo case holding their acts to be unconstitutional." If it were true, as argued by Chief-Justice Pearson, that to confer on the secretary of war and his subordi- nates the power of determining who is liable to conscrip- tion, would be " totally at variance with every principle of our government," then the fugitive-slave law, in its 45 698 SUPREME COURT Ex parte Hill, in re Ar mis tead v. Confederate Si bestowment of power upon the commissioners, Violated the constitution ; and the law investing the registers of land-offices, and even* department of the government; with gMon'-ja.dicid] power, is unconstitutional. The au- thorities which I have cited, as well as those from which I have made extracts, fully illustrate and sustain the dis- tinction which I have drawn, and I need not. further discuss the point. I think it can not he controverted, bv any one who respects judicial precedents and fair argu- ment, that the commissioner who issued a warrant for the arrest of a fugitive slave, was no judge, held no court, did not exercise judicial authority, issued no pro returnable to a court, and really put. forth no judicial pro- cess ; notwithstanding, in the careless use of language, his process may have been so characterized. The com- missioner was as much a ministerial, or executive otiicer, as the officer charged with the execution of the conscript law ; and their powers are alike quasi-judicial, as distin- guished from judicial, in their character. Upon what ground, then, can it be maintained, that the State courts can interfere with the execution of the conscript law. and yet were without power to interfere with the enforcement of the fugitive-slave act? I proceed to notice some of the decisions and rulings made in the non-slaveholding States by the judges who were endeavoring to maintain the supremacy of the con- stitution and laws of the United States, opposed and re sisted with a boldness and* ingenuity without a parallel in the history of the country. Judge ISTelson, of the su- preme court of the United States, in the charge to the grand jury already referred to, used the following lan- guage: "There have been difierentopinions entertained by the judges of the States as to their power under this writ [the writ of habeas corjms'] to decide upon the validity of a commitment or detainer by the authority of the United States. But those who have been inclined to entertain this jurisdiction admit that it can not be upheld, where it appears from the return that the proceedings belonged exclusivel}' to the cognizance of the general government. OF ALABAMA. 0*9 Ex parte Hill, in re Armistead v. Confederate States. This necessarily results from the vesting of the judicial power of the Union in the Federal courts and officers, and from the iourth article of the constitution, which declares that "the constitution and laws of the United States, which shall he made in pursuance thereof, and all treaties made, or which shall he made under the authority of the United States, shall be the supreme law of the hind, and the judges in every State shall lie hound thereby, an}- thing in the constitution or laws of any State to the con- trary notwithstanding." If the exclusive power to exe- cute the law : s in the Federal judiciary, aud the act is to be regarded as the supreme law of the land, and to be obeyed as such, it is difficult to see by what right or au- thority its execution can be interfered with, through the agency of this writ, by State authorities. Any such in- terference would seem to beadirect infraction of the con- stitution. It is proper to say, in order to guard against misconstruction, that I do not claim that the mere fact of the commitment or detainer of a prisoner by an officer of the Federal government bars the issuing of the writ, or the exercise of power under it. Far from that. Those officers may be guilty of illegal restraints of the liberty of the citizen, the same as others. The right of the State authorities to inquire into such restraints is not doubted ; and it is the duty of the officer to obey the authority by making a return. All that is claimed or contended for is, that when it is shown that tin) commitment or detainer is under the constitution, or a law of the United States, or a treaty, the power of the State authority is at an end, and any other proceeding under the writ i //"/>. judicc and void. In such a '';vse — that is, when tliQ prisoner is in fact held under process issued from a Federal tribunal, under the constitution or a law of the Unit - 3 ■-. or a treaty — it is the duty of the officer not to m up or allow him to pass from his hands at any f the proceedings." Judge McLean, one of the judges of the sr.preme court of the United States, in reference to a case wfyere aKentuckian, the owner of slaves, seized them in Michi- 7 00 SUPREME COURT Ex parte Hill, in re Armistead v. Confederate States. gan without a warrant, held, that the owner having a war- rant issued by a commissioner, or having seized his slaves in the absence of a warrant without a breach of the peace, upon the return of either of those facts, the authority of the State court under a writ of habeas corpus would cease, because it would then appear that the prisoner was held under the authority of the constitution and laws of the United States. — Norris v. Newton, 5 McLean, 82. A case is reported in 5th Am. Law Reg. 659, September, 1857, (Ex parte Sifford Marshall et a?.,) which was decided in an able opinion by Judge Leavitt in the district court of Ohio. In that case, some persons had resisted the mar- shal in the arrest of a fugitive slave. Those persons were arrested under a warrant upon the charge of resisting the officer. An attempt was made to take the prisoners out of the custody of the marshal by virtue of a writ of ha- beas, coyy us issued by a State judge. For an assault and batter} 7 committed in resisting this attempt the marshal and his posse were arrested under a warrant issued by a justice of the peace. A habeas corpus was obtained from the district judge ; and he, in passing upon the power of a State court to interfere with the custody of prisoners held by the marshal under a warrant, used the following language : "The doctrine seems now to be settled, that a State judge has no jurisdiction to issue a writ of habeas corpus for a prisoner in the custody of an officer of the United States, if the fact of such custody is known to him before issuing the writ. And it is well settled, that if, upon the return of the writ, it appears the prisoner is in custody under the authority of the United States, the jurisdiction of the State judge is at an end, and all further proceedings by him are void." The same judge, in an opinion of great ability in another case, in 1856, alter ex- amining the authorities, held ,as follows: "If judicial de- cisions are entitled to any consideration, it -is clearly es- tablished that, though it maybe competent for a State judge to issue the writ of habeas corpus in a case of im- prisonment under the authority of a law of the United States, when the fact is made known to him his jurisdic* OF ALABAMA. 761 Ex parte Hill, in re Armistead v. Confederate States. tion ceases, and all subsequent proceedings by him are void." — Ex parte Robinson, Am. Law Reg. for August, 1856, vol. 4, p. 617 ; Ex parte Robinson, 6 McLean, 85. In the celebrated Sims' case, (7 Cash. 285,) the supf< court of Massachusetts declined to issue a writ of h corpus for a fugitive slave, claimed in the petition to be free, who had been arrested under a warrant issued by a commissioner. The court, in an opinion delivered by- Chief-Justice Shaw, while admitting the general proposi- tion, that a State court ''can not issue a writ of habi r pus to bring in a party held under color of process from the courts of the United States, or whose services and the custody oi whose person are claimed under authority derived from tb,e laws of the United States," denies the universality of the proposition, and instances the cases of soldiers and sailors held by military and naval officers under enlistments complained oT as illegal and void, as exceptions. Th'e distinction intimated can only be main- tained upon the supposition, that the principle involved, would yield at the judicial will to suit the wants of the case. Finally, the. subject was presented to the supreme court of the United States, in the two cases of Ableman v. Booth, and the United States v. Booth, in which Chief- Justice Taney delivered the opinion of the court, which ported in "21 Howard. In one of those eases, the Wis- consin court discharged Booth from imprisonment under a commitment by a commissioner for resisting the execu- tion of the fugitive-slave iaw. Tu the other, the court of the same State discharged the same person from inipr ment under a judicial conviction for the same offense. The supreme court of the United States, as will be by reference to pp* 528-524, placed its decision upon the ground, that a State court can not interfere with the cus- tody of one held under the authority of the Unit- After conceding the right of a. State court to ascertain by what authority a prisoner within the confines of its territo- rial jurisdiction is held, the court uses the loilowin. phatic language: "But alter the return is made, and the 702 SUPREME COURT parte Mill, in re Armistead v. Confederate Sfci State judge or court judiciallyjapprised that the party is in custody under the authority of the United States, they can proceed no further. They then know that the prisoner is within the dominion and jurisdiction of another government, and that m ither the writ of habeas corpus, nor any oilier pro- acts issued under State authority, can pass over the line of di- vision between the tiro sovereignties. He is then within the dominion and exclusive jurisdiction of the United Stat. ii' he-has committed an offense against their laws, their tribunals alone can punish him. If he is wrongfully im- prisoned, their judicial tribunals can release him, and af- ford him redress. And although, as we have said, it is the duty of the marshal, or other person holding him, to make known by a proper return the authority under which he detains him, it is at the same time imperatively his duty to obey the process of the United States, to hold the prisoner in custody uncrbr it, and to refuse obedience to the mandate or process of any other government. And consequently it is his duty not to take the prisoner, nor suffer him to be taken, before a State judge or court, upon a habeas corpus issued under State authority. No State judge or court, after they arc judicially informed that the party is imprisoned under the authority of the United States, has any right to interfere with him, or require him to be brought before them. And if the authority of a State, in the form of judicial process or otherwise, should attempt to control the marshal, or other authorized offic or agent of the United States, in any respect, in the cus- tody of his prisoner, it would be his duty to resist it, and to call to' his aid any force that might be necessary to maintain the authority of law against illegal interference. No judicial proqess, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries in nothing less than lawless violence." It has been objected, to the authority of this opinion, first, that the court and the great jurist who delivered it did not really mean what is said ; and secondly, that it OF ALABAMA. 703 Ex parte Hill, in vo Arrnistead v. Confederate States. must at all events be treated an an obiter dictum — as the opinion of an able lawyer on a question not presented by the facts before the court. In reply to the former objec- tion, I have only to say, that when the ease of Ableman v. Booth was decided, the supreme court of the United States, with its nine judges, in the high qualities of lofty integrity'and profound learning, had no superior, if it had an equal ; and it is incofleeivable that the language of so Important an opinion should have obtained the unani- mous sanotion of such a tribunal, unless it afforded a true index to its opinions. The second objection is as ground- less ;u the first. The deoision of the case in which there had been a conviction and a sentence, might have been put upon the principle, that the judgments of judicial tribunals, within the area of their jurisdiction, arc con- clusive. In the other case, where there was simply an arrest and commitment by authority of a commissioner, that proposition would not have decided the case; for the authorities hereinbefore cited show, that it is now the es- tablished doctrine, however mueh it may have been con- troverted in the past, that the commitment of one to answer before a court for an offense does not involve the of judicial power. Although an often der may have been committed by a commissioner, to answer a charge, the truth of the accusation may be investigated on habeas corpus issued by a judge of a Federal court, and also I e, if he has a concurrence of jurisdic- tion, rlicularly the opinion of Judge drier in the »f Jenkins and Crosson, reported in the Amer. Law- fur January, 18M, p. 144. In order to cover both . it was, therefore, necessary for the supreme court of the United States to find some broader principle; and .ms to me that they have laid down the, only princi- ple which could have controverted the State jurisdiction in both casi But it may be said, that the court should have restricted 'ctriue to the very facta of the ease, and, instead of aanouu in" the broad and comprehensive principle, that the jurisdiction of the general and State government.- are 704 SUPREME COURT Ex parte Hill, in re Arrnistead v. Confederate States. as distinct as if separated by visible marks — that neither can cross the line which divides their jurisdictions, and that, therefore, a State tribunal can not interfere with the custodj^of one held uuder the authority of the United States — should h ave 'emasculated the principle, by adding the proviso, that its application should be confined to cases of imprisonment under the warrant of a commissioner, ... or under a conviction in a Federal court. It is not riffht to denounce the statement of a principle as an obiter dic- tum, because it is large enough to cover other cases than those decided. To do so, would bauish from the bench the assertion of those comprehensive and leading doc- trines which give stability and harmony to jurisprudence, and require the judicial mind always to present principle narrowed down by the facts of the particular case, and therefore unfitted to be a rule of conduct in the affairs of life. The great doctrine stated by the supreme court of the Unked States was applicable to the cases decided, and controlled their decision. It is, therefore, not an obiter dictum. As the result of my long review of the decisions grow- ing, directly and indirectly, out of the fugitive-slave law, I confidently assume, that the principle which I have as- serted is fully supported by them, and that it has the sanc- tion of the supreme court of the United States, which, under the old system of government, would have been a commanding authority. I admit, as I have heretofore done, that many State decisions — in New York, New Hampshire, Massachusetts, Pennsylvania, Maryland, and Virginia — maintained the power of State courts to inter- fere with the custody of persons held under the authority of the United States. Many of those cases are noticed in my former opinion, and they are collated by Ilurd in his work on Habeas Corpus. All the State courts did not decide the same way. •The question seems to have been decided both ways in Georgia. So, also, the decisions were contradictory in South Carolina. — Rhodes' < 12 Nilcs' R. 264; In the matter of Merritt, 5 Amer. Law Journal, 497. In the former of those cases, Judge Cheves OF ALABAMA. 705 Ex parte Hill, in re Armistead v. Confederate States, delivered an able opinion, controverting the State juris- diction. In the latter, Judge Nott recognized the juris- diction, without noticing the point. So, also, in North Carolina, the jurisdiction was exercised without any notice or discussion of the question. — Ex parte Mason, 1 Mur. 336. In New Jersey, Judge Southard, speaking for the court, avoids the question of jurisdiction ; but for himself remarks, that it would require a "great struggle of feel- ing and judgment for him to ever arrive at the point where he would be prepared to deny the State jurisdic- tion." — State v. Brearley, 2 Southard, 555. In the Federal courts, the jurisdiction of the State courts was never acknowledged. In Veremaitr's case it was ex- pressly denied. — Hurd on Habeas Corpus, 197. In the case of Keeler, (Hempstead's R. 306,) it was doubted, if not denied. No American law-writer has conceded the jurisdiction, except Mr. Hurd, whose book was written, in Ohio, in 1858, during the struggle of the State courts, in the non-slaveholding States, to defeat the enforcement of the fugitive-slave act; and who exhibits his own pro- clivities, by the expression of doubts as to the constitu- tionality of that act — pp. 648, 640. Chancellor Kent as a judge iii New York denied the State jurisdiction, and afterwards in his commentary only yielded the point to a later decision in that State so far as to Bay, "the question was therefore settled in favor of a concurrent jurisdiction in that case, and there has been a similar decision and practice by the courts of other States"; but there is no evidence that he ever abandoned the views expressed by him from the bench. — Ferguson's case, 9 Johns. H. 239; In the matter of Stacy, 10 ib. 328; 1 Kent's Com. 401. Sergeant, in his work on Constitutional Law, (p. 282,) treats the question as unsettled, and contents himself with giving the decisions on both sides of it. In Duer's Treatise on Constitutional Jurisprudence, (p. 180,) pub- lished in 1856, the subject is thus disposed of: "Under what circumstances, and how far, the judges of the State courts have power I corpus and decide on the validity of a commitment or detainer under the au- 706 SUPREME COURtf parte Hill, in re Armistead v. Confederate States. th'ority of the national government, are questions which have been variously determined in the States, and never definitely settled in the supreme court of the United States, where the ultimate right of determining them re- sides." In 1842, Conkling's Treatise on the Juris- diction of the Federal Courts issued from the press. That work, in reference to this subject, employs the fol- lowing language: "Whether, and if so under wliat cir- cumstances, the judges of State courts can rightfully ex- ercise this power, are questions which have been variously- decided in the courts of the several States. It seems .to have been agreed on all hands, however, that, admitting the power to exist, it ought to be exercised with great caution and reserve; and among the advocates of the power it has generally been supposed, that it ought to be limited to the inquiry, whether the court or officer, in virtue of whose process or order the prisoner was con- fined, had jurisdiction of the case." In this unsettled condition the supreme court of the United States found the question in 1858, when it decided the case of Able- man v. Booth. That decision, on account of the high character for learning, integrity and patriotism of the judges, the relation in which the court stood to other tri- bunals, and the sound reasoning which it developed, ought to have settled the question ; and in all probability the point would never again have been agitated, if we had continued to occupy our former relations to the United States. Tenvpora mutardur, nos el mutamitr v>, tills. Ingenuity may suggest the reply to my argument, that the conscript law bestows no authority to enroll those who are exempt for any of the reasons specified in the law; and that, therefore, the officer who visits conscrip- tion on one not liable, does not act under the authority of the government of the Confederate States. To this reply I rejoin, that there is a necessarily implied authority in the officer to determine who are amenable to conscrip- tion; for how can lie enroll those liable, and exempt those not liable, without determining who belong to the respective classes? The officer, in ascertaining who are OF ALABAMA. 707 Ex parte Hill, in re Armistoad v. Confederate States. within the age of conscription, as clearly exercises an authority bestowed by act of congress, as he does in en- rolling a man of undisputed liability. A youth is pre- sented to an enrolling officer — his age is doubtful: the law commands the officer to enroll him, if he is eighteen years of age; the officer does not know whether he is of that age; must he, because he is thus uninformed, dis- charge the young man ? He must do so, unless lie has authority under the law to investigate the question of age; for, as an officer, he can do nothing for which the law does not afford a warrant. The authority to deter- mine the question of liability to conscription is necessa- rily involved in the power to conseribc; for there can be no conscription without the ascertainment of its proper -subjects. An officer must have the power necessary to discharge his duty. Certainly the officer may err: so may all the officers of the general government — the col- lector of customs, the post-master-general, the commis- sioner who commits persona held to have violated the criminal law, and all others who exercise powers which concern the pecuniary interest, the property, or the lib- erty of the citizen; yet it will scarcely be contended, that it is the province of a State tribunal to visit a controlling authority over those officers, in order to coerce the cor- rection of their errors. One government cannot thus control the officers of a co-ordinate government. If it can, the two governments arc not co-ordinate and equal within their proper spheres— the latter is subordinate and inferior to the form If the officer charged with the execution of the con- Bcrrpt law has no authority to decide the question of lia- bility to conscription, it is competent for any State officer, authorized to issue a writ of habeas corpus, to treat every llraent as a nullity, and to discharge every man en- rolled, when in his judgment there was not a liability. Tie' officer b liable to a conviction foi im- minent, if a ourt differs from him upon the tion which he is bound to decide. He may l.ave de- cided and acted precisely as he thought to be right, and 708 SUPREME COURT Ex parte Hill, in re Armistead v. Confederate States. as the judicial tribunals of the government, whose officer he was, would approve; and yet he may be punished as a criminal, because some judicial officer of another gov- ernment entertained a different opinion. An army raised in a particular State, and deemed liable to conscription by the executive and judicial departments of the Confed- erate government, and of the State where it was raised, may, upon reaching some other portion of the Confed- eracy, find some officer, clothed by the State law with power to issue the habeas corpus, whose peculiar views will lead him to disband the army in a day. The tribunals of a single State, differing from those of the Confederate States and of every other State, may utterly subvert the application of the power to raise armies to that * State. They may even invite the people from other States, by peculiar rulings, to fly to their jurisdiction as a shelter from the enforcement of the law. It is to be apprehended that our government will not be permitted to pass through its infancy, without experiencing some or all of the ruin- ous consequences which are (as I believe) probable results of the proposition, that State courts have the jurisdiction claimed for them. Congress has power, granted by the constitution, to suspend the privilege of the writ of habeas corpus, wheD, in cases of rebellion or invasion, the public safety may require it. — Constitution of the United States, art. I, § 9, "j[ 2; Constitution of the Confederate States, art. I, § 9, T[ 3. An unavoidable sequence of the proposition, that there is a concurrent jurisdiction in the State tribu- nals, in reference to the custody of persons held under the authority of the general government, is, that the sus- pension by congress applies to State courts and judges. Upon the hypothesis of the concurrent jurisdiction, the suspension would be utterly vain and nugatory, unless it affected State tribunals; for, if it were restricted to the tribunals of the general government, an applicant for re- lief under the writ would only find it necessary to address his prayer to a judicial officer of the State, instead of the Confederate States. I am not prepared to admit, that OF ALABAMA. 709 Ex parte Hill, in re Armistead v. Confederate States. the franura of the constitution ever intended to subject the use of the great remedial writ of habeas corpus by the States to the control of another government. Habeas corpus is the instrument by which the State tribunals re- dress wrongs, varied and extensive in their character, which can not affect the general government, either in peace or in war, in times of domestic quietude or rebel- lion. I do not think that the convention which framed the constitution aimed to bestow any authority to inter- fere with the use of that writ by the State judges. The object, of the States was to delegate only such powers as would enable the government "to do that which either could not be done at all, or as safely and well done by them as by a joint government of all." In the clause in reference to habeas corpus, there is a great departure from that prime object, if it be understood to apply to the em- ployment of that writ by the State tribunals. As the writ of habeas corpus was never suspended by the government of the United States before the secession of the southern States, we can find in its annals no deci- sion upon the exact question in hand. Nevertheless, I think Chief-Justice Marshall and Chancellor Kent have announced a principle irreconcilable with the supposition that congress can suspend the issue of the writ by State judges. The former of those two eminent jurists, in Barron v. The Mayor, &o., of Baltimore, (7 Peters, 247,) used the following language: "The constitution was or- dained and established by the people of the United States, for their own government, and not for the government of the individual States. Each State established a constitu- tion for itself, and in that constitution provided such lim- itations and re^triclions on the powers of its particular government as they supposed best adapted to their situa- tion, and best calculated To promote their interests. The powers they conferred upon the government were to be exercised by itself; and the limitations on power, if ex- pressed in general terms, are naturally, and we think ssaHly, applicable to the government created by the instrument. They arc limitations of power granted in 710 SUPREME COURT Ex parte Hill, in re Armi.stead v. Confederate Stales. the instrument itself; not of distinct governments, framed by different persous, and for different purposes." In the same opinion, the principle is distinctly stated, that no limitation of the action of the government of the United States on the people would apply to the State govern- ments, unless expressed in terms; and that in every in- hibition in the 0th and 10th articles of the constitution, intended to act on State power, words are employed which directly express that intent. Chancellor Kent's views upon the same subject are thus expressed: ''As the con- stitution of the United States was ordained and estab- lished by the people of the United States for their own government as a nation, and not for the government of the individual States, the powers conferred, and the limi- tations on power contained in that instrument, are appli- cable to the government of the United States, and the limitations do not apply to the State governments except in express terms. * * The people of the respective States are left to create such restrictions on the exercise of the power of their particular governments, as they may think proper; and restrictions by the constitution of the United States, on the exercise of power by the individual States, in cases not consistent with the objects and policy of the powers vested in the Union, are expressly enumer- ated." — See, also, In the matter of Smith, 10 Wend. 449; Livingston v. Mayor of N. Y., 8 ib. 85-100; Barker v. People, 3 Cow. G36-700; Murphy v. People, 2 Cow. 315- 320 ; ]N T olcs v. State, 24 Ala. 672-690 ; Boring v. Williams, 17 Ala. 510-516. While the provision of the constitution implies an au- thority to suspend the privilege of the writ of habeas cov- jms, it restricts that authority to occasions when, in cases of rebellion and invasion, the jtfublic safety may require it; and it likewise restricts judicial authority by a pro* hibition to relieve under the writ, when there is a consti- tutional suspension. I can not perceive how this limita- tion of judicial authority can, consistently with the princi- ple stated by Chief-Justice Marshall and Chancellor Kent, be made to apply to the judicial department of a State OF ALABAMA. 711 Ex parte Hill, in re Armistead v. Confederate States. government. A theory, which necessitates the imposi- tion of such a restriction upon the authority and power of State judges, cai> not, it seems to me, be corn If it be understood that the Slate judges can not dis- charge persons heM under the authority of the Confe 'cr- ate States, perfect harmony in the operation of the two systems is preserved. Neither the States collide with the genera] government, when it, in the exercise of its pow- ers, take a per sou into custody; nor the latter with the States, when exercising their proper judicial functions. And the States will be left, as if was intended they should, in the undisturbed exercise of powers, extending "to all the objects which, in the ordinary course of affairs, con- cern the lives, liberties, and properties of the people, and the internal order, improvement and prosperity of the State/ —Federalist, No. XLV. 216. The privilege of interfering with the general govern- ment, in the execution of its laws, is no compensation to the impaired and wounded sovereignty of the States, for the concession to another power of the authority to sus- pend the right of their citizens to obtain the writ of habeas corpus from their judge-;. This question, so far as I have discovered, was noticed in only one of the State conventions, which ratified the constitution of the United States. In the Massachusetts convention, . Judge Sumner, discussing the clause as to the suspension of the writ of habeas corpus, said: "Con- have only power to suspend the privilege to person- commit ted by their authority. A person committed un- der authority of the States will still have a right to the writ."— 2 Elliott's Debates, 109. I concede, and never intended to be understood as con- troverting, the authority of State courts to inquire into the cause of imprisonment of the citizens of the State, On the contrary, I hold, as do all the authorities, that a State judge ought to take jurisdiction, until he ascertains that the petitioner is held under the authority of the Confederate £ and that as soou as he is so informed, whether by the petition itself, or the subsequent proceed- SUPREME COURT Ex parte Hill, in re Armistead v. Confederate States. in-~. he ought to repudiate the cause. — Ableman v. Booth, supra; also, Sims' case, 7 Cash. 285; Watkins' ci 3 Peters, 201 ; Ex parte Passmore Williamson, Amor. Law Kegister for November and December, 1855, vol. 4, p. 81. I fully concur with my brother Stose in the conclusion attained by him in the Dudley case. I concur with him, also, in his construction of the law and regulations on the subject of substitution. As far as the question of juris- diction is concerned, I rest my conclusion upon my own argument, and do not assent to the reasoning which con- cedes jurisdiction to the State courts in some cases, and denies it in others. This opinion has been swelled to a great length by the numerous and extended quotations made in it. My apology for this is, that I have felt solicitous to vindicate my position with; the bar of the State; and I thought it would be better to make the literal extracts found in this opinion, because many belonging to the profession may not have the time or opportunity to examine the works from which the quotations are made. At the time when I wrote my first opinion, there had been only one or two adjudications upon the subject in the Confederate States. The question has been now, expressly and by implication, passed upon by several of the appellate State tribunals in our Confederacy; and in no case known to me has an ap- pellate State court sustained the doctrine which 1 main- tain. Both of my brother judges differ from me. There has not yet been established a supreme court of the Con- federacy, which could serve as a common arbiter, to whose decision all would submit. Under the circum- stances described, I must treat the question as settled for the present; and although not convinced of any error in my reasoning and conclusions, I shall, so long as those circumstances continue to exist, suffer the State jurisdic- . tion to be exercised to the extent agreed upon by this court, without further controversy. R. W*. WALKER, J.— This case presents the question of the power of the State courts to discharge, on habeas OF_ALABAMA. 713 Ex parte Hill, in re Armistead v. Confederate States. corpus, persons illegally held in custody by the enrolling officers of the Confederate States, under the asserted au- thority of the acts of congress popularly known as- the " conscript laws." I am strongly inclined to the opinion, that the jurisdiction of the State courts to issue the writ of habeas corpus, to. bring in persons held as conscript* under the alleged authority of these laws, and to try the lawfulness of their detention, is concurrent and co-extensive with the jurisdiction of the Confederate courts in the premises. At all events, I am thoroughly satisfied, that whenever a person in the custody of an enrolling officer in this State shows that he belongs to any one of the classes of persona eipressly ''exempted " from military ser- vice by the laws of congress; or that, having furnished a substitute, he lias obtained a discharge, which is still valid and operative; or that he is not of conscript age ; or that, because of non-resideuce, color, or other legitimate son, the law of conscription does not apply to him, it is not only the right, but the sacred duty of the judges of the State courts, to discharge him on habeas corpus. The only question necessarily presented, and, as I un- derstand it, the only question actually decided in /.'• parte Hill, at the last term, (in which I did not sit,) was as'to the jurisdiction of the State courts, on habeas corpus, to discharge on the ground of physical incapacity, persons in the custody of the enrolling officer, who fail to show- that they have been '■'-held unfit for military service, by reason of bodily incapaeit}-, under the rules prescribed by tary of war." On that question I prefer to with- hold an opinion for the present; contenting myself with aaying, that if the Stafe courts have no power to dis- charge in such a case, it must be because a person who has not been "held unfit for military service, by reason of bodily incapacity, under the rules prescribed by the sec- ry of war," i^ not legally exempt from conscriptior , although he may be in fact unfit for military service on account of such incapacity. If that be so, the enrollment and detention of such a person aa a conscript arc author- ized by law; and consequently, the judges of the Confed- 46 714 SUPREME COURT __ Hill, in re Armietead v. Confederate States. erate courts would not, any more than those of the State courts, have power to discharge him on habeas corjms. The application for the prohibition is placed upon the ground, that the probate judge, in issuing the writ of s corpus, and taking cognizance of the matters therein mentioned, has "acted without authority of law, and usurped jurisdiction of matters which are only cognizable before the judicial or military tribunals of the Confeder- ate States." I think it should be overruled, even if it should appear that the state of facte set forth in the peti- tion for habeas corpus docs not with complete certainty exclude the idea that the petitioner may be now liable to enrollment. The writ of prohibition ought not to be granted in such a case, unless it is plainly shown that the judge was proceeding to try a question, or exercise au authority, out of his jurisdiction. As the subject is one of the gravest import, and as the state of my health disables me at present from stating at large the grounds of my opinion as to the existence and extent of the jurisdiction of the State courts, on habeas comus, in cases arising under the conscription laws, I wish to reserve the privilege of preparing and filing here- after another opinion in this case, in which I will express more fully my views on this interesting and important question. Note by the Reporter. — The foregoing opinion of R. W. Walker, J., applies only to Armi6tead's case, and seems to exclude the expression of an opinion in Dud- ley's case. But Judge W. afterwards instructed the re- porter, in publishing the cases, to state that he dissented from the decision of the court in the latter case, unless, in the meantime, he himself prepared and Sled another opinion, expressing more fully his views. OF ALABAMA. , 715 Ex parte McCanls. Ex Parte McCANTS. [habeas corpus.] 1. Liability of person having substitute in Confederate army to service in /State militia. — A person who, being liable to military service in the army of the Confederate States under the " conscript laws" of con- gress, procured a discharge from that service by furnishing a sub- stitute in bis stead, is nevertheless subject to militia duty under the State, laws, and is liable to the draft ordered by the governor on the 17th June, 1863, under the requisition of the president of the Confederate States fur teven thousand troops from the militia of tlii- State. The petitioner in this case, Allen G-. McCants, applied to the probate judge of Montgomery county for the writ of habeas corpus, by which he sought to obtain his dis- charge from the custody of Col. John II. Cogbo urn, com- manding the 24th regiment of the militia of this State. The facts of the case, as shown by the petition and the return to the writ, which were uncontroverted, arc these: In January, 1863, the petitioner, being liable to military duty under the k - conscript laws" of congress, procured a discharged from service in the army of the Confederate .^tutes, by furnishing a substitute who was accepted in Bis stead. In June, 1863, the president of the Confeder- ate States made a requisition on the governor of this State for se ven thousand troops from the State militia, to be mustered into the service of the Confederate States, withinti Alabama, for the term of six months. The governor thereupon, on the 17th June, ordered a drafl ilitia. — General orders, No. 1<>. The draft was held on the 25th July, and the petitioner was drafted as one of the seven thousand troops. On these facts, the probate judge refused to discharge him from cus- tody ; holding that his discharge from service in Hie Con- federate States army, as above stated, did not exempt him from liability to service in the State militia under the 716 SUPREME COURT i.wo. by agi ind submitted on tin transcript <>r bill of ■ A. B. Clithirall, for the petil w.m. r. Chii a. J. WALKER, c. J.— {Sepl is made a requisition apon •ii th< usund of the militia, I • within the State, for six month? from the itioner was. on the 25th July, dr;it*' militia-nian under that requisition. Having i previously enrolled as a conscript, he was <>n the nary last die -•• he had furnish* The question of the case thu ! is. ther this discharge exempts him from liability to servt tnfederate States as a militia-man; and for the i which we proceed to state, we decide it in the negal The milita gth of the Coufederat< divided into two departments ; the army proper, embrac- ing the provisional and permanent organization, and the militia. The army proper has been created by virtue of uthority, bestowed in the constitution, "to raise and support armies." The government employs the militia under the separate and distinct constitutional power " to provide for calling forth the militia, to execute the lawi of the Confederate States, suppress insurrections, and ■is." The service of the citizen in these two different departments is exacted by the authority of dis- tinct {'" anted in distinct clauses of the constitu- tion. The government may exercise those different for different purposes, and may impqse upon citizens, in net departments, duties altogether variant iu their character and objects. There is no stion upon the employment of the army proper, excepl OF ALABAMA. 717 Hits. may bo implied from the Limited powers of our Confeder- ate government, [t may be required to serve in an aggi ar in for »r in building or gar- • ificationa in times of ; r to do any Other military duty, which ; irnment may 1 mutely i The militia, however, can be called forth only for the three purposes specified in tin 1 constitution, the laws, suppressing insurrections, and rc- peili: It may happen, that the Boldier in the arm and tin- militia-man, may be engaged in the sami : but the obligations of the former, and the by far the more extensive, and Lore perilous and arduous, more dia- tani and prol Thi .m m>i render actual service, Bimul- . in both the military departments ; and, there- •rnment can not p'-mire it. But#t has the I authority t in reference to any citizen, ol the proper caj . dis- . and to require in eith military departments forbearance of I rn- h and tuk'.- any or given < iti- can . :ain from can the irmy prop* r, hind the • do t i, lar duty ■ ion§ i by i the 718 SUPRE ME COU RT Ex parte McCants. army proper, or define conditions upon which they might be granted, for the reason, that, in an emergency, the services of the discharged soldier may still he made avail- able for local defense, the suppression of social disturb- ance.-, and the enforcement of the laws; and the citizen may well be supposed to have reconciled his sense of patriotism with the act of leaving the army, by the reflec- tion that he could still serve the country as a militia-man. It can not, therefore,^ successfully contended that the discharge was contemplated, either by the government or by the citizen, as an emancipation from the restricted and specific duties which may be devolved upon the mi- litia. A discharge from the army proper alone can have no effect upon the obligation to render service as a part of the militia. It may be said, that the petitioner's discharge was not Bimply fr/fin the army as a conscript, but was a general and comprehensive discharge from the military service of the Confederate States; and that, therefore, Ihj argu- ment which \yc have made has no application to the case. The discharge was granted under the authority of the ninth section of the act of congress, approved April 16tb, 1862. That act simply provides, "that persons not liable for duty may fee received as substitutes for those who are, under such regulations as may be prescribed by the secre- tary of war." Interpreting the transaction between the government and the petitioner in the light of the act, it amounts only to this: that the petitioner, by virtue of the law owing service in the army proper, tenders a man to render it in his place ; the government accepts him, relieves the petitioner from that particular service, and remits him to his original status. He is discharged only from the service which another renders in his place. The- government exempts from no duty except that which another binds himself to render as a substitute. It dis- charges from duty in the army proper, which the law authorized it to exact, and not from the militia service. in which he had no substitute. Whenever only a portion of those within the militia OF ALABAMA. 719 Ex parte McCants. age are placed in the army proper, the substitutes will be found to consist, to a large extent, of men belo.u'gin the militia. The history of the war now pending will show many instances of the substitution of militia-n n. If the petitioner's claim to exemption is well founded, whenever a substitute and the principal belong to the militia, two men are lost to the militia service; the prin- cipal, because he has a substitute in the army; and the substitute, because he is in fact in the army. If the gov- ernment were to take one half the militia as conscripts, and they were to employ the other half as substitutes, there would, upon the argument for petitioner, he no militia, notwithstanding half of them were at h 1 lowing their accustomed vocations. The argument to the absurd and shocking conclusion, that a law, simply extending the privilege of substitution to the people, had converted all those who might, by the aid of friendship or money, procure substitutes, into a privileged class, from* the constitutional obligation to serve the Coo- federate States in the militia, even though every other person belonging to that arm of the public service was in the army. Such an argument can not be sound. It is contended, that he who has furnished a substitute, .-lively in the army proper, and that he can not he required to render the incompatible service ol tie militia-man. In certain cases, the law from .. rom- infers facts, without any regard to their actual exist- ence. These facts are called constructive. Thus we have int. law constructive fraud, constructive noti struct:--* housebreaking, and the like. The inf< ti its is made upon principles and policy whicl not apply here, and their application would lead I irdities. The» constructive fa not presumed to a single purpose; but the law- adopts them, and follow i in their c If, then, the principal ie one purpose, the law mas all that [uent upon it. The principal si. pay, and all : s and exemptions provided by 720 SUPREME COURT Ex parte McCarits. the law for the soldier in service; and he should sutler for the desertion, or other misconduct of the substitute. It can not be necessary to argue this point. From the very nature of the thing, the doctrine of construction is incapable of any application to the case. Qui facit per •ilium, faeit per se, is a. maxim of the law: but it has no pertinency to the question. lie who furnishes a substi- tute, does not serve through his substitute. The latter, on the contrary, serves in his place — is mustered into ser- vice, and discharges all the offices of a soldier, as an in- dependent, distinct person, and not as the representative or agent of another. There can be no such thing as do- ing military duty through an agent. The nature of the service, and the constancy, fortitude, and heroic qualities which it requires, are such as to exclude the idea of any representation by an agenl in the army. The principal is always entitled to the agent's earnings in the business of the agency ; and therefore, if the substitute were but an agent, the principal should receive the pecuniary com- pensation, and the higher rewards of honor, and fame, and gratitude, which await the faithful and gallant sol- dier, and stimulate him to exhibitions of valor. These reasons, we think, justify the conclusion which we announced at the outset, and which was attained as the result of a consultation, in which all the judges ot the court participated. The petition must be overruled, and the petitioner must pay the costs of the proceeding. STONE, J. — As I understand the term militia, found in the 15th and 16th clauses of section 8, article I, of the Confederate constitution, it does not mean thai body of mm, organized under State authority, who are known as State militia. The State might fail to make, or even to provide for, an organization of the militia; and still the right and power of the Confederate government to call "forth the militia to execute the laws of the Confederate States, suppress insurrections, and repel invasions," would remain unimpaired. Clause 16 reserves "to the OF ALABAMA. 721 Ex parte McCants. States respectively the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by congress;" but all other powers are to be exercised by or under Confederate authority. I will not say the State authorities may not, if they will, be employed and aid in calling forth the militia; but such assistance is not necessary to the exercise of this power by the Confederate government. The State is armed with no power to defeat the call, by refusing to respond to it; but congress may disregard State agency altogether in the execution of this power, and provide for a direct call on the people, when either of the exigencies mentioned in the fifteenth clause arises. Congress has, also, the clear right to define and declare what persons- shall be subject to militia duty, under the call of the Confederate government ; aright which was frequently exercised under the government of the United States. — See Brightly's Digest, tit. "Militia." My construction of the word militia,,' -as found in the constitution, is, that it is not confined to any organiza- tion ; but that its true and exact import is, that portion of the people who are capable of bearing arms — the arms-bearing population. This definition of the term will facilitate the solution of many of the disputed questions, which have arisen on the construction of that part of the constitution which provides for calling forth the militia. Saving thus set myself right on the question of the construction of the term " militia," it is not my inten- tion to otter ai y comments on the opinion of my broth- ers supra,) some portions of which do not meet my appro- bation. INDEX. ACCOUNTS. I. Proq) i made by deceased clerk. — Books of account, kept by a It, and all other eat: i a >randa made in the eoursc of business or duty, by one who would be at the time a com* petent fact which he registers, are held competent evi- dence from the pre mm id neces ity of the case ; but, the reason of the rule ceases, and the rule itself consequently fails, wh n it appears that there i' other and better evidence of the same facts j as where it is shown to lx> the custom of a bank to payout money only on the checks of it nk of Montgomery v. Plaunett's Adm'r 17S ACTION. 1. When in his own name. — A bailee for reward, having deliv- ered • aril his barge to a steamboat, to be carried to their d may maintain an action in his own n t the i1 for the negligence and carelessness of their servants in the tr n.-portation of the goods, whereby plaintiff lost his rewap -died to pay damages to the owners of the g"ods. McGill v 28(5 2. Whet tut — Under the provisions of the Codp, (§§ 2036, 2182,) a _ sue in his own name, for the ur a ■ ill making the affidavit required by the Matute (Cod . ;.T1 tries. — An adult p n com- pos mentis, is liable on an implied contract for nee I him, suitable to >u lition in life; and where uo guardian has been a] inaction for the valo must necer thing- tnn . 400 724 INDEX. ACTION— CONTINUED. 5. Whit actions lie against corporation. — An action of trespass for false im- prisonment lies against a corporation, but an action on tbc ca-e for a malicious prosecution does not. — Ows'ey v. Montgomery & West Point Railroad Co 485 6. Action, ct lata between UHtureties on official bond. — One of the sureties on a Sheriff's official bond cannot maintain an action at law on the bond, against the other sureties, for their principal's default. — Mitchell v. Tur- ner 5SS ADVANCEMENT. See Estates ok DCCXDBNTS, 1-2. ADVERSE POSSESSION". 1. Whale possession. — A knowledge on the part of an ad- verse bolder that hi-> title is defective, does not, of itself, p event the operation of the statute of limitations iu I113 favor. — Manly 's Adm'r t. Turnipseed 1 440 2. Adverse postewion Ixtween husband and wife. — At common law, the posses- sion by the Wife, during coverture, is the possession of the husband, and can not ripen into a perfect title i i her, as against the husband's admin- istrator, although it is shown that the husband had abandoned her when her posses ion commenced ; that he never afterwards returned to her, and never asserted any claim to the property ; and that she held and claimed it, as her own individual property, for a continuous period of more than twenty years.— Bell v. Bell's Adm'r 460 ;;. Adverse possession by purchaser, under color of title. — Where a purchaser enters Into the possession of land under a vendor's bond, conditi ed to m»ke title by a specified day, which must arrive before a part of the purchase-money is due by the terms of the contract, his possession can not be- considered adverse to the vendor, until the day app inted for the conveyance of the title; and where such bond is executed by one who professes to net as the agent of several joint owners, for one of whom he has do authority to act, and is thus conditioned for the c-on- veyance of title by them, the character of the purchaser's possession is the same as to all the owners. — Ormond v. Martin 52(f 4. Prescriptive easement. — A tolerated or permissive user of an easement can n v< r ripen into a title by prescription, while a user wh ch te ad- verse, independent, or as of right, it continued for a period correspond- ing with the statutory bar to a right of entry upon land, will confer an absolute right ; but the use of a ditch and levee on a party's own land, which is in itself rightful, can not confer a prescriptive right to inju- riously overflow the lands of an adjacent proprietor many years after- wards, when the ditch has become gradually filled up with the sand and dirt accumulated and deposited therein by the continued flow of water. Polly v. McCall 246 6. Same — The English doctrine, that a right to have aneient windows un- obstructed can arise from mere uninterrupted enjoyment for the period prescribed by the statute of limitations as a bar to actions for the re- covery of laud, does not prevail in this country. — Ward v. Neal 413 INDEX. 725 AGENCY. 1. Agency vel non. question of fad; charge invading province of jury. — Wiiere the fact of agency is controverted, and there is any evidence ten liny; to establish it, the sufficiency of that evidence is a question for the jury, under appropriate instructions from the court; and a charge, asserting that tin 1 evidence is not sufficient to prove the agency, i^ erroneous. Bank of Montgomery y. Plannett's Adm'r 178 2- Note signed by agent, for principal, held prima facie contract of principal. A promissory note, beginning thus. "Twelve months after date, vc prom- ise to pay," &0. ; and signed thus, "For the Montgomery lion V J. S. \\\, president, 8. J., secretary," — is, prima facie, the contract of the principal, and not binding on J. S. W. personally. — Honey's Adm'r v. Winter •- M AMENDMENTS. 1. Of -A complaint may be amended, (Code, § 240".) by strik- ing out the name of one of the plain' iffe, who was dead at the com- mencement of the suit. — Jemison v. Surih. MO 2. Same.— Under tile provisions o!" the Cole. (§§ 2402-3,) where the sum- mons is in the name of the plaintiff individually, the complaint may be so anr nd d as to show that he sues as guardian of a minor, and for the use of his ward. — Longmire v. Pilkington 293 3. Same, after demurrer sustained. — Under the Code, (§ 2255,) if plaintiff amends lis complaint, after the court has sustained a demurrer to the original, and proceeds to trial on the amended complaint, he docs not thereby waive his right to assign as error the judgment on the demur- rer, unless the record shows that, in consequeuce of the amendment, he sustained no injury by that judgment. (Overruling Sluppajrd v. Shelton, S4 Ala. 652, and limiting Stuffings v. Newman, 26 \la. 300, to cases commenced before the Code.) — Williams v. Ivey 220 4. Of affirmed judgment, — The affirmance of a judgment by the supreme court, on certificate, at the term next preceding that to which the ap- pftil is taken, may be corrected on motion, and, consequently, furnishes no ground for equitable relief against the judgment. — McCollum v. Prewitt 498 See, al -o. Chakosbt Pleading ahd Psacticx, 19, 20, 21. ATTACHMENT. 1 . Action an bond ; malice, and nndidivt damages. — In an action on an attach- ment ltoiid, if the attachment was not vexatious as against the defend* ant in the process, the fact that the attaching creditor was actuated by malice towards a third person, who, though a joint obligor with the de- fendant in attachment, was not a party to the process, affords no ground for the K coTery of vindictive damages.— V» ood v. Barker ' 311 2. Same ; admimbUitg of declaration*, « part of res gestct, — The declarations of the plaintiff in attachment, to his attorney, as to his reasous for su- ing out the process, made at the time of suing out the writ, are. :. sible evidence, in an action on th<> attachment l>ond, as a part of the ret gestae I ' 311 IN DEX. i ACHMENT -continued. H. Tl to plaintiff in garnishment. — Theal'owance of a set-off claimed by tbe garnishee, against the claims admi'ted by him to be due to the defendant, tr to his transferree is not a matter of ■which tbe plai complain on error, when the record shows that he contest d the transferree'* right to the claims, and that the jury found the issue in favor of the transferree. — Union India-Rubber Company v. Mitchell 317 ATTORNEY-AT-LAW. 1. Duty and liability. — An attorney, receiving a note for collection, is not hound to file it as a claim against the insolvent estate of the deceased debtor, and is nol guilty of any negligence in failing to file it, when it appears that tl e debtor was living at the time the note was put in bis bands, and it is not. shown that he had knowledge of the debioi's sub- sequent death — Stubbs v. Beene's Adm'r 655 AUCTIONEERS. 1. Tax on .—The tax imposed by law on the gross amount of auction sales, (Codt . § 391, subd. 17,) is to be assessed against and paid by the auctioneer, and not by the owner of the property sold. — Tho State v. Lee & Norton 102 BAILMENT. v 1. B liter's right to terminate bailment. — If the bailor of slaves, when deliver- ing possession to the bailee, declares that he giv.>sor lends them to her, ' "but subject to his call at any time," bis righ* to terminate the bail- ment, and reclaim the slaves, is not necessarily limited to the life-time of the bailee. — McGehee v. Mahone 212 2. When bailee may .me in his own name. — A bailee 'for reward, having de- livered the goods on board his barge to a steamboat, to be carried to their place of destination, may maintain an acion in his o«n nunc against the own. rs of the steamboat, for the negligence and careless- ness of their servants in the transportation of the goods, whereby plain- tiff lost his reward, and was compelled to pay damages to the owners of tbe goods. — MeCill v. Monette 285 Z. Common carriers ; liability for jiegligence, — A common carrier cannot limit his common-law liability by any general notice, but may so limit it by a special contract with the shipper ; and a bill of lading, given by the carrier on the receipt of the goods, and accepted by the shipper, is a special contract within the meaning of this rule ; yet such special con- tract cannot be pleaded by the carrier, as au exemption from liability for any loss or damage resulting from his own negligence. — Steele & Burgess v. Townsend 201 4. Sa7>ie ; burden of pr vof on question of negligence. — Where the bill of lading contains an express stipulation, that the carrier is "not accountable for rust or breakage," proof of injury to the goods by breakage neverthe- less makes out a- prima-facie case of negligence against him; and the omw is then on him to show the exercise of due care and vigilance on INDEX. 727 BAILMENT— continued. , * his part to prevent the injury ; unless the na'ure of the injury, or of the goods, of itself furnishes evidence that due care am! dilig. nee could not have prevented the injury • 201 & Liability of steamboat-mat, as commvn carriers, in mailer of transhipment of freight. — A transhipment of freight is only justifiable in cases of ne- cessity, and, if made in the absence of such necessity as constitutes a legal excuse, subjects the ca'rier to liabi'ity for the si beequent loss of the freight on the vessel to which it i-- transfer-red ; anil the mere grounding of a steamboat on an inland river, from which she could relieve herself, with safety and convenience, by temn/va ilv placing a part of her.«cargO on the bank, and afterwards take it on board ajain and finish her voyage, doca not constitute Mich legal excuse. — Cox, , Brainard & Co. v. Fos-ue 419 6. C«- ' plaintiff, in OC nmon carrier, to pr- nil, l>/ !o punish slave, and liability for abuse of — In ;ho absence of qualifying stipulations in the contract of hiring, the hirer a'qu.ires the master's au hority t.o inflict reasonable punishment on th< b] ive ; and in determining what, is a reasonable pun- ishment.— a question which admits of no certain and uniform solu- tion,— regard nn;st be bad to the nature o. >tie offense, and to the tem- per of the Blave while receiving the punish men ; since obstinacy, re- rebclliousneei on his part, justifies Bcverer punishment than would otherwise be right and. prop r.— Tillman v. Chadwick 332 8 Same.— A e'ldrge to the jury, assertiug that, ff the punishment inflicted by the hirer on a slave "was beyond wlut was right a d proper under the circumstances, then the onus was on him to pr ve that lie was au- thorixi 1 by the slave's conduct to whip him time severely, and beyond what would hive been right and proper,"— id calculated to mislead and confute the jury, arid is properly refused 382 BILL I I ; —A bill of exceptions, which is without date, and which is not shown by the record to lime prefer bed by th( Statute, (Code, § 2358,) will I , on motion, as forming nopartol : e record. — Union India-Rubber Co. i Mitchell 317 «\liCUm .nd to in the bill, as consiitutng a part of it, but 728 INDEX. BILL OF EXCEPTIONS— continued. are neither copied into it, nor sufficiently identified to be regarded as part of it, it cannot be established 196 4. When nonsuit, with bill of exceptions, may be taken. — A nonsuit may be taken, with a bill of exception?, (Code, § 2357,) in consequence of the supp r ession of the plaintiff's deposition, on motion, before tbc trial is entered upon. — Douglass v. M. & W. P. Railroad Co 506 BILLS OF EXCHANGE, AND PROMISSORY NOTES. , 1 . Note signed by agent, for principal, held prima facie contract of principal. — A promissory note, beginning thus, "'Twelve months after date, we prom- ise to pay,"' &c. ; and signed thus, "For the Montgomery Iron Works, J. S. W., president, S. J. secretary," — is, prima facie, the contract of the principal, and not binding on J. S. W. personally. — Roney : s Adm'r v. Winter . 234 2. I/legality of consideration, of note — If the consideration of a note is partly illegal, ic avoids the whole note; but the maker, when sued on the note, may nevertheless waive th« illegality, and insist on a failure of the con- sider -tiou. — Wynne v. Whisenaut 282 3. J-ailurc or want of consideration of note. — In an action on a note given for the purchase-money of land, sold by an administrator under an order of the probate court, a defect in the title is no defense to the suit, if the court had jurisdiction to order the sale. — Watson v. Collins' Adm'r.. . . 515 4. Transfer of note — By the common law, (which will be presumed, in the abset.ee of evidence to the contrary, to prevail in a sister State,) to transfer the legal title to a promissory note, without delivery, it ie ne- cessary that there should be an endorsement on the note itself, or on another paper attached to it. — Boruni v. Ling's Adm'r 584 5. Mistake in payee's name in note. — When a promissory note is, by mistake, made payable to Aaron Formey, instead of Aaron Formby, the latter may sue upon it in his own name, alleging that it was made payable to him by the name therein inserted, and may prove on the trial, by pirol evidence, that he was the person intended ; and his assignee may sue in like manner, making the same averments and proof. (Overruling Gayle v. Hudson, 10 Ala. 116 ) — Taylor v. Strickland 671 <5. Alteration of note by subsequent verbal contract. — The maker and holder of a promissory note may, by subsequent verbal agreement, founded on sufficient consideration, change the rate of interest which it bcar9 ; yet the holder cannot, in a 6uit on th« uote itself, recover on sucVmodified contract. — Uunt's Executor v. Hall 034 BONDS. 1. Validity and consideration of bond of officer de facto. — A bond executed by the intendant of an incorporated town, with others as his sureties, which recites that, by virtue of his election as intendant, he " is thereby made ex officio a justice of the peace," and is conditioned for the faithful discharge of his duties as such justice, will be upheld as a comtnou-law obligation, (although there is no law requiring the intendant to give bond.) when it appears that he was at least a justice tit faci-j. and that INDEX. 729 BONDS — CONTINUED. the bond ia supported by a sufficient consideration ; and if it was given for the purpose of procuring for the intendant patronage and business as a jus:ice of the peace, and he did receive patronage'and business as a justice on the faith and credit of it, it is supported by a sufficient con- sideration. — Williamson and McArthur v. Woolf 296 2. Partial satisfaction of bond. — A deed, executed by the vendor at the re- quest of the purchaser, conveying a part of the land embraced in the title-bond, with covenants of warranty, to a third person, may be ac- cepted by the purchaser as a partial compliance with the condition of the bond ; and being so accepted, its admissibility and validity are not affected by a mistake in the description of the land conveyed, nor by the fact that the vendor had no title to that part of the land. — Bedell's Adm'r v. Smith 548 3. Tender of deed, and eviction, as prerequisites to right of action on vendor's lond. — Where the vendor has no title, and, for that reason, refuses to make a title when requested, the tender of a deed by the purchaser, to be executed, ia not necessary to perfect his right of action on the title- * bond; and an actual eviction of the purchaser is not necessary, since ins right of action accrues so soon as the bond is broken by a failure to convey 648 4. Estoppel by bend. — The sureties on a bond, which recites that the prin- cipal obligor 'has been duly elected intendant of the town of C, and is thereby made ex officio a justice of the peace," are estopped, when sued on the bond for the default of their principal, from alleging that he was not a justice of the peace ; it appearing tliit he was at least a justice de facto, and received much business as a justice on the faith and credit of the bond — Williamson and McArthur v. Woolf 296 5. Same.— A delivery bond, executed by the defendant in detinue, which does not recite any fact showing that the defendant had possession of the property at the service of the writ, docs not estop him from show- ing, in defense of the action, that he did not have the possession of the property at that time ; nor doe9 the giving of such bond operate an es- toppel en pent against him.— (Explaining and limiting Wallis v. Long, 16 Ala. 738.)— Miller v. Hampton 357 CHANCERY. I. Jumsdiction. I. Equitalik attachment ; bequest to trustee, for comfort and support if debtor, but ' .' debts. — Where a sum of money is bequeathed to a trus- tee, in trust for a debtor, "not subject to any debt or debts he may have contracted, but for his comfort and support," it mar be subjected by equitable attachment (Code, § 2956) to the payment of his existing debts. — Smith v. Moore 342 'ofls, and '". — After dower has been allot- ted to the widow by the probate court, she BUT come into equity to recover d.imagCH for its detention ; and the measure of her damages, where the husband left no descendant", would be one-half of the rent, from the death of her hueband, until the assignment of dewer. — McAl- iieter v. McAllister 366 47 730 INDEX. CHANCERY— continued. 3. Equitable sn-off against claim for mesne profits. — If fie executor carries on the plantation of the deceased husband with the labor of the slaves, pays all the debts and expenses of administration out ol the income, thereby saving the entire persoual estate for distribution, and distri- butes to the widow, uuder an order of the probate court, her distribu- tive share of the residue of cuch income, this constitutes no defense to the widow's claim lor mesne profits ; yet, if he acted in good faith, be is entitled t9 a credit out of the assets for tlu amount of damages re- covered from him by her ; and if the amount received by her as a dis- tributee exceeds her proper share, to be ascertained after deducting the amount of her recovery from the entire fund for distribution, he may, under appropriate pleadings, recover the balance from her, and have it adjusted in the suit for mesne profits 36(5 4. Injunction of action at law. — A court of equity will not enjoin an action at law for a trespass, on the ground that the plaintiff therein is, and w^s at the time of the sieged trespass, indebted to thedefendaut on account of other matters, and is insolvent. — Harrison v. McCrary CIO 5. Eqaitahlv relief ag linst judgiru nt at law, on ground of diseovery. — After th9 , rendition of a judgment at daw against a pa:ty, he cannot maintain a bill in equity for a discovery as to matters of purely legal eogn izance, without showing a sufficient excuse for his failure to take tie p:oper 'Steps to obtain the discovery, either by bill in equity, or by interroga- tories uuder the statute, while the action was pending.— McCollum v. Prowit i ^ 498 §. Same, on ground of usury.— Usury in the note on which a judgment at law is founded, constitutes no ground for equitable relief against the judgment, unless a sufficient excuse is shown for the failure to make the defense at law <19S 7. Same, on account of 'surprise, accident, mistake, or fraud. — A party who Beeks equitable relief against a judgment at law, on grounds which were available as a defense at law ; and who simply shows that he had a valid defense to the action, and a sufficient excuse for his failure to be present at the trial term, at which the judgment was rendered ; but fails to show that he had employed counselor summoned witnesses, or taken any other steps to defend the action, although it was pending more than six months before the judgment was rendered, — does not re- lieve himself from the imputation of negligence, and, consequently, is m t entitled to relief 498 8. Same, on account of irregular affirmance on certificate. — The affirmance of a judgment by the supreme court, ou ceitificatc, nt the term next preced- ing fiat to which the appeal is taken, may be corrected on motion, and, consequently, furnishes no ground for equitable relief against the judg- ment 493 9. Partition; liability fir rents, and co for improvements. — In a chancery suit for the partition of lands, by analogy to the rule pre- scribed by statute for real actions at law, (Code, £ 2216,) a defendant, who holds possession under color of title, in good faith, will not be charged w.th rent for more than one year before the commencement ol the suit ; and he will be allowed compensation for the value of improve- INDEX. 731 CHANCERY -continued. nv.Mit] mule by him during such possession, not exceeding the amount of rents charged against him. — Ormond v. Martin 62<> 10. Partner — Although the defen 1- ■ ants may n9t have committed such acts of misconduct, or been guilty of such willful violation of the terms of the contract, as would authorize a court of (-quity to decree a dissolution of the partnership for that cause; yet a dissolution will be decreed, where it appears that tbejr refuse o carry out one of the terms of the articles of partnership, ami insist that, in order tocooduot the partnership business successfully, that stipula- tion must be either changed or disregarded : that they have refu/ed to the complainants, on matters connected with the pa t- ncrship business; that the state ol feeling between the parties justifies the r; d, that the joint business can' be no longer prosecuted to the if all the partners; that there is no partner- ship property rhich might be sacrificed by a sale, and th it a dissolu- tion would not probably inflict any material injury on either party. — Meaner v. Cox, B ■ainard & Co 15C 11. Same ; ju dation providing for referenct to urbi- ulation in articles of partnership, providing tor a sub- til to arbitration of all matters of controversy which may among the partners, does not take away the juris action of equity to decree a dissolution 156 (rust not enforced. — A court of equity will not en- force, Kgai n tor or bis personal representative* a purely vol- untary executory trust in favor of a grand-child. — Borneo v. K Adm'r 501 :! contract. — A court of equity will not de- cree the spei ii'.e execution »f a contract which is illegal and void, he- cause i of the policy of the public land-laws, although the party ask tug it is in possession ofthe land, and baa made valuable imr>i Smith t. Jebnaon 562 try of legacy. — Where a residuary 1« ting a debt due from the testator to the leg thai be had made an unauthorized sale oi int< i , t of land, to be deducted from the amount of the I g- ■■ infants, and consequently, ineai able u sale, — the chancery court alone cao ma i, and i--, therefore, the appropriate forum for the set- • Ttaiument of the legacies.— Bush and W i ; :V21 II. 15. II — .The beirs-at-law of tin ition, he having d d intes- tate, ..■ , lied by tbc judgment deb Hcin It. W and who tie bill pia; d to anew INDEX. CHANCERY — CONTESTED. party defendant, notwithstanding the want of appropriate allegations showing his interest in the litigation 43> 17. Sufficiency of service. — Where one of the defendants was described in the original hill as Charles T. Cleveland ; and the sheriff returned the subpeona " executed on Charles IT. Cleveland, and Charles T. Cleveland not found" ; and the bill was afterwards amended by substituting //. for T. as the initial letter of the middle name, — held, that the service was sufficient, and that the variance was, at most, an immaterial misdescrip- tion. — Cleveland v. Pollard 481 18. Service of process on infant. — Personal service of process on an infant, who is under fourteen years of age, is irregular. — Bondurant v. Sib- ley's Heirs 48» 19. Appointment of guardian ad litem for infant defendant.— The appointment of a guardian ad litem for an infant, who is not at the time a party to the suit, is a nullity ; but. after the infant has been made a party, the appointment of a guardian erf litem for him, even if made without any previous service of process, and otherwise irregular, is voidable mere- ly, and not absolutely void ; yet such irregular appointment, although it will work a reversal on error of a decree against the infant, and may be vacated by the chancellor on motion, is valid until reversed or set asid«; and the subsequent appointment of another guardian, while the for mer is unrevoked, is void 489 20. Amendment of bill. — Under the act of Feb. 8, 1858, " amendatory of proceedings in chancery," (Session Acts, 1857-8. p. 230,) any amend- ment of a bill, either as to parties or averments, which may be- come necessary to meet the justice of the case, or to meet any state of the proof that will authorize relief, must be allowed by the chancellor, upon such terms a,s he may deem just and equitable; but <0he statute does not authorize the allowance of an amendment, which would con- vert the bill of the wife into the bill of the husband, and enable him to assert a claim barred by the statute of limitations. — King and Wife v. Avery * 124 21. Same ; filing without leave, and waiver of irregularity. — An amended bill, or matter of amendment brought forward in a bill of revivor, will be stricken out on motion, if filed without leave previously obain d ; but, fjif no such motion is made, and answers are afterwards filed, treating the amendment as properly made, aud it is recognized and acquiesced ia, both by the parties and by the chancellor the appellate court will consider the irregularity as waived. — Bondurant v. Sibley's Heirs .... 489 22. Statute of limitations to amended ML — If a bill is filed, by mistake, in the tame of the wife as a feme sole, to recover her interest in slaves which accrued to her before marriage, and which vested in the husband by virtue of his marital rights ;,and an amended bill is afterwaid9 filed, in the name of husband and wife, after the statute of limitations has barred the husband's right of action,— the statute is a bar to the relief sought, although the statutory bar was not complete when the original bill of the wife was filed. — King and Wife v. Avery 124 23. Multifariousness. — A bill, filed by a widow, jointlv with her only child by her first husband, against the administrator and heirs-at-law of her INDEX, 733 CH ANCERY— CONTINUED. second husband, asking an account of the hire of coram slaves, in which the widow had a life-estate at the time of her first marriage, dur- ing the period of her second husband's possession of th«m, a partition of the slaves between her and her child, and the recovery of her distri- butive share of her second husband's estate,— is multifarious, since it asserts separate and distiuct rights, in which the complainants have no community of interest.— Bean v. Bean's Adm'r 205 . 24. Dismissal for multifariousness.—' Although the chancellor seldom should, he nevertheless may, sua spottte, dismiss a bill for multifariousness ; and if the objection really exists, the appellate court will not reverse his decree 265- 26. Variance between allegations end proof.— The bill alleged, tha the slave in controversy, in which the complainant claimed a separate estate under a Contract between her hu band and one J., was sold, conveyed, and delivered by her husband to said J., in consideration of the latter'a agreement to become surety for him in a certain law-suit, and to pay whatever judgment might be recovered aga'nsthim ; "and that what- ever might be left of the value of the negro, and her hire, after satisfy- ing the judgment that might be recovered against B. (the husband), and the girl herself, if she was not taken io satisfy the judgment, J. was to convey to, and settle upon complainant, in her own right, and as her own sole and separate estate, and to her heirs." The proof was, that B. delivered the flare to J. to iudemuify him against his liability as surety for the costs of the law-suit, "upon condition that, if the suit should go against B, the negro was to be sold, and the proceeds of sale to be first applied lo the payment of the costs of the suit, if necessary, aud the residue, if any. to be paid over to the complainant ; but. in the event that B. gained the suit, the negro was to be put in the possession of the complainant, as her own and separate property, and J. was to trausfer to her all the title, interest and claim that he had to the negro, for her separate use and benefit." Held, that there was a fatal variance between the allegations and proof.— Burns v. Hudson 321 20. Same.— So, where the bill alleged, that J, in pursuance of his pre- vious contract with B., verbally sold and delivered the sjave to the complainant as her s parate estate, in consideration of her promise to secure and indemnify him against his liability as surety for B. in the law-suit ; while the proof only showed, that he delivered the slave to her, and said that he made no further claim to the slave, — the variance was held fat-al : '-1 07. Same,— &0, where the bill alleged, that the complainant afterwards delivered the eiave to the defendant, upon his promise and agreement to indemnify J. against his liability as surety for B., to satisfy whatevot judgment might be recovered against B., to keep the slave hired out »t B •pecified price, to return her to the complainant after it waPhsrer- tained what he had to pay on the Judgment against B., if the negro was not taken to satisfy the judgment, and to account for her hire; while the proof thawed, that the defendant's agreement was, totnko the place of J. as surety for B., and to dispose of the slave, at tht termination of 734 INDEX. CHANCERY— CONTINUED. the suit, in like manner as J. was to have disposed of her under his agreement with B.. as above stated,— the variance was held fatal 321 28. Dismissal without prejudice. — The complainant in thjg case being a married woman, suing by her n>xt, friend, and there being a fatal vari- ance between the allegations and pi oof, the bill was dismissed without prejudice . . '. 321 29. D ■ want of prosecution. — Wber? the complainant refuses, after his bill l.as been pending for several ye«rs, to pursue the course sug- gested by the chancellor, and which is the only proper course, to bring in a party, who, thoagh made a defendant, has not beeii brought before the court, the bill may be dismissed, on motion, for want of profccu- tion ; and the complainant cannot excuse his negligence in failing to proceed against the absent defendant, on the ground that he was not a necessary party to the bill. Where the complainants are infants, suing by their next friend, the no ore usual, and, ordinarily, the proper prac- tice, is to remove the next, friend; yet, if the chaucellor, in the exer- cise of his discretion, dimisses the bill, the appellate court will presume that lie did so because the interests of the infants did not Require a fur- ther prosecution of the suit. — Bonuurant v. Sibley's Heirs 489 30. Dissolution of injunction irithoiU dismissal of bill. — An injunctio > may properly be dissolved for want of equity, where the allegations of the bill are not sufficient to authorize the interference of the court by in- junction, although the bill may be retained for other relief. — H irrison v. McCrary 619 31. Action at law in suits for partition. — The act of February 6, 1858, " (o regulate the practice in partition suits," (Session Acts, 1857-58, page 294,) dispenses with the necessity of an action at law, to settle a contro- verted question of legal title arising in a chancery suit for the parti- tion of lauds— Ormond v. Martin 526 CHARGE OF COURT. 1. Al . — An abstract charge, or one which is not shown by the record to have been predicated on some evidence before the jury, is properly refused. — McGuire t. The State 69 2. Same. — A charge to the jury cannot be considered abstract, when the bill of exceptions recites evidence tending fo show the existence of the facts on which it is predicated ; and if the record fails to show such evidence., the appellate court will presume that a charge given wa« not abstract, when the bill of exceptions does not purport to set out all the evidence. — McLemore v. Nuckolls ; 591 3. a uctkm and effect of other charges, — Where the court, after having charged the jury orally, gave several charges in writing at the request oi the defendant, aud then added, "that the jury would receive ,the written charges, in connection with the charges and law as giv?u and abounded orally .from the bench, as the law of the case,"- that this was not erroneous. — Pcott v. The State 23 4. Charge, if correct, must he ghen as asked — Since the statute (Code, g 235.5 ) ii* per.itively requires, that a charge to the jury, if correct and not abstract, must be given in the language in which it is asked, the INDEX. 735 -CHARGE OF COURT— coktinuko. do:trine of err >r without injury cannot be applied to the refusal of such charge, although the legal propos'i iou embraced in it was substan- tially enunciated in a other charge given by the court. — Polly v. McCall, 246 5. Oh by jury on retirement. — Wheu charges to the jury, in wr ting, are giveu by the court at the request of a party, it is the duty of the cou.t to allow the jury to take such charges with them on their retirement, and the refusal to do so is err. r : the statute (Code, § 2355) is mandatory, and not simply directory.— Miller v. Hampton 357 <5. 0} fury. — A charge asked, which is calculated to confuse and mislead the jury, is properly refused. — Til man v. Chad wick T;32 7. Same. — In an action to recoyerdam g s for a breach of promise of mar- riage, a charge which predicates th i plaintiff's right to recover on the proof of a promise and breach thereof, and entirely disregards the evi- dence adduced by the defendant tending to show a justification of the breach, is erroneous. — Espy v. Jones 454 '8. Charge invading province qf j'wy. — Where it is necessary to infer an ad- ditional fa t, not proved, from the f.cts which are proved, a general charge on the evidence is uu iuvasion of the province of the jury, and is, consequently, erroneous. — W ird v. The State 65 Also, Smith v. The State -. 83 M. &C Railroad Co. v. Bibb 630 Barker v. Bell 375 9. Same. — Where the fact of agency is controverted, and there is any evidence tending to establish it, the sufficiency of that evidence is a ion for the jury, under appropriate inst: actions from the court; and a charge, asserting that the evidence is not sufficient to prove the agency, is erroneous.— Bank of Montgomery v. Planuett's A m'r 178 CODE OF ALABAMA. I. g 891, subd, 17. Tux on auction sales.— State v. Lee & Norton 102 2T §§ 397-99. Keeping nstaurat without license — lluttenstein v. The State. . 64 3. §jj 3H9-400. Sale of slave by unlicensed negro-trader. ^ — McGehee v. Bump 5S0 4. i: 1U5G-5D. I Irituom liquors. —Thompson v. The State 58 5. §1359. Widow's quarantine. — McAllister v. McAllis'er 366 6. §j5 1300-72. Assignment of dower by probate court. — Smith V. Johnson.". . 562 7. § 1651. — Ragland & Howell v. Wynn's Adm'r 270 Also, Boy kin k McRa- t. Dolhonde vt Co 502 8. ; ■■ of partial intestacy. — Greene's Ex'r v. Speer and Wife. . * 450 -Jonee v. Jones' Executor 574. 10. g§ 1667-8, 17¥>. ' .— Watson v. Co liiis' Adm'r. . 515 Also, Ward v. Cameron's Adarrs 022 II, — Becue's Jdm'r v. Phillips, rins 310 \ im'r 556 12. 6. Gaming with slave. — Ward v. The State f.5 49. 3' 3257. Disturbing religious worship. — Kinney v. The State 104- Also. Harrison v. The State 61 60. §§ 3280-81. Selling liquor to student or minor.— Merkle v. The State. . . 45 61. g§ 8297-98. Negligent treatment of slaves.— Oheek v. The State 107 52. § 8812. Homicide of white person by skive— Scott v. The State 23 Also, I^hara v. The State 93 53. §3361. Sureties to keep peace.— Es jporte Coburn 117 64. § 3 '.78. O-uh of petit jury.— MctJuirs v. The State 69 65. § 3570. Service of copy of indictment un prisoner. — Scott v. The Stat. 66. §§ 3588^85. i of juror. — Aaron v. The State 12 Also, Murphy v. The State 48 f>7. i 3600. Conviction on testimony of accomplice. — Sin th v. The Stite. ... 84 Also, Bass v. The State 87 58. § 3614. Change of venue.— Aaron v. The State 12 Also, Scott v. The State 23 59. § 8931. Removal of convicts to penitentiary ; sheriff'* fees. — Greece v. McGehee 119 COMMON CARRIERS.— Sec Bailment. COMMON LAW. 1. Presumed to exist in oilier States.— In the absence of evidence to the con- trary, the courts of this State will presume that the common law pre- Tails in other States. — Conuor v. Trawick's Adm'r 258 Also, Berum v. King's Adm'r 534 CONFLICT OF LAWS. 1, As to rate of interest. — A promissory note, made in this Slate, but paya- ble in New Orleans, bears iuterest according to the laws of Louisiana, unlees a different rate is specified in the note i tsel f . — Iluut's Executor v. Hull 634 "CONSCRIPT LAWS."— Sec Constitutional Law. CONSTITUTIONAL LAW. 1. In summary remedy of cor p • —A summary remedy against dcl&ulting stockholders, given to a corporation by the act of its incorporation, is no part of its corpo- rate tran -hUes, and may be altered or modified by the legislature at pleaeure. — £x/v;Vfc North-east and South-west Alabama Railroad Co. 48 738 INDEX. • CONSTITUTIONAL LAW— continued. 2. Sufficiency of indictment — An indictment under the act of 1868, "to prevent nuisances and illegal trafficking with slaves," (Session Acts 1857-8, p. 285,) which charges that the defendant "kept, or was engaged in th^ keeping of, a public nuisance, by h vving permitted slaves, or free persons of color, habitually to visit, assemble, or stop at, or loiter about, the house or prenvses kept or occupi.-d by him," — is sufficient, b r ing in the form authorized by the third section of the act, and is not violaive of any constitutional provision. — Schwartz v. The State 75 3. Jurisdiction of Slate courts to discharge person in. custody for violation of criminal laws of United State.-. — The courts of this State have now (July 9, 1861,) no jurisdiction to discharge lrom custody a person who was ar- rested prior to the passage of the ordinance of secession, charged with a violation of the criminal laws of the United States within the limits of the State of Virginia ; the question of his right to be discharged, or his transfer to'the proper court in Virginia for trial, apperiaining to the jurisdiction of the district court of the Confederate States — Lx parte Kelly 91 4. Can. titutiona/ity of conscript laws. — The several acts of congress, com- monly called the "conscript laws," (0. S. Statutes at Large of 1st Con- gress, 1st session, p. 29; ibl 2d session, 61,) are constitutional. {Per Stone, J.)— Ex parte Hill, in re Willis. liST 5. Jurisdiction of State courts to discharge enrolled conscript from custody of ftder.i'c Stain officer. — The courts and judicial officers of the State have no jurisdiction, on habeas corpus, to discharge from the custody of an en- rolling officer of the Confederate States, on the ground of physical in- capacity for military service, persons who have been enrolled as con- scripts under the several acts of congress 637 6. Same. — On petition for habeas corpus, by a person who, being liable to • military service under the act of congress approved April 16th, 1862, commouly called the "first conscript law," procured and placed in his stead a substitute, and was thereupon discharged ; but, after the passage of the "second conscript law," approved September 27th, 1862, whs again arrested by the enrolling officer, on the ground that his discharge had become inoperative, because his substitute was personally liable to service under the latter law, — the State court or judge to whom the ap- plication for the writ is made, bas jurisdiction to determine the question of fact, whether the petitioner placed in his stead a substitute, and was thereupon discha-ged ; and also the question of law, whether such dis- charge exempted the petitioner from liability to service under the lat- ter law, his substitute being within the conscript age as therein speci- fied. (A.J. Walker, C. J., dissenting.) — Ex parte Hill, in re Armistead. 667 7. Same. — The commandant of conscripts, at one of the camps of instruc- tion, having vacated, on the ground of fraud, a discharge procured by a person who, being liable to military service under the "conscript laws" of congress, had furnished a substitute in his stead'; and the decision of the commandant having been approved by the secretary of war, — a State court or judge has no jurisdiction, on habeas corpus or otherwise, to revise and control the action and decision of the commandant, at the instance of the person whose discharge is vacated, on the ground that INDEX. 739 CONSTITUTIONAL LAW— continued. ez-parte affidavits were received against him on the trial, or that he was not notified of the time and place of taking testimony, or that he was not allowed an opportunity to cross-examine witnesses. (R. W. Walker, J., dissenting*) — Ex parte Dudl-y 667 8. Liability of principal to military service under "second conscript law", having fhrnished substitute under first, — The 9th section of the "first conscript . law" of congress declaring, that persons not liable to military service "may be received as substitutes for those who are, under such regula- tions as miy lie prescril>ed by t!ie secretary of war"; and the geueral orders (No. 37) published by the secretary of war on the 19t:i .Vay, 1S62, providing, in reference to exemptions procured by furnishing substitutes, that "such exemption is valid only so Ion* as the said sub- stitute is legally exempt," — a person who was liable to conscription un- der said 1 iw, and who, after the publication Of said general orchis, placed in his stead a substitute, who was between the ages of thirty -five and forty years, and thereupon obtained his discharge, became again liable to conscription, on the passage of the ''second conscript law," and the president's call for men beiween the ages of thiity-five and forty years ; and the same principle appl : es to persons who furnished substi- tutes after the publication of the general order (No. 64) dated Septem- ber 8, 18(5.', which declares, that "a substitute teconiiug liable to con- scription renders his principle also liable." (Per tot cur.) 667 9. Conscientious scruples against bearing arms, as ground of exemption from mil- itary service. — A person who "conscientiously scruples to bear arms," may claim exemption from military du'y, under the provisions of the Stale constitution, (art. iv, militia, § 2,) upon payment of an equivalent for personal service ; yet he is not entitled, on that account, to exemp- tion troin military service in the armies of the Confederate States, un- less he belongs to one of the religious denominations specially exempted by the acts of congress. — Ex parte Stringer 6C5 10. Liability of person having substitute in Confederate army to service in Sta'e militia. — A person who, being liable to military service in the army of the Confederate States under the' "conscript laws" of congress, pro- cured a discharge from that service by furnishing a substitute in. his stead, is nevertheless subject to militia duty under the State laws, and le to the draft ordered by the governor on the 17th June, 1863, under the requisition of the president of the Confederate States, for seven thouiand troops from the militia of this State.— Ex parte Mc- Cant« ^ 716 CONTRACT-. 1. Assent -It is essential to the validity ef a contract to marry, that them should he reciprocal promises between the parties ; hut, if a man makes in express offer or promise of marriage to a woman, her acceptance and reciprocal promise may be established by proof of her conduct and actions at the time, as well as by express words. -Espy v. Jones. 464 2. Jusfijicilion of breach. — If a mm promises to marry a womau whom he believes to be virtuous and modest, and afcrwards discovers that Bhe is 740 ■ _ INDEX. . OONTR A.CTS — C05JTINUKD. loose and immodest, be is justified in breaking Lis promise; but, to en- title liim to a verdict on that ground, the jury must be satisfied that the pliiutdl is a lo.;se and immodest woman, that the defendant broke his promise on that account, ami that he did not know her character at the time he made the promise # 454 3. Damages for breach. — Iu an action for a breach of contract, — by which plaintiff agreed to serve defendant, in the capacity of an overseer^ for the term of one year, but was discharged, without fault on his part, be- fore the expiration of the year, — if the suit is commenced before the expiration of the year, the plaintiff can only recover unliquidated dam- ages for the breach of contract; aud it c mnot be assumed, as matter of law, that the stipulate! wages for the entire year would be the measure of damages. —Wright v. Falkner 231 4. Illegality of consideration. — If the consideration of a note is partly illegal, it avoids the whole note; but the maker, when sued on the note, inav nevertheless waive the illegality, and insist on a failure of the con- sider -tion — Wynne v. Whisenant 282 • 5. Validity of contract made irith slrnv. — A promissory note, given to a sl'.w . for money borrowed from him by a white man, is void, and will not BUbport an action. — Martin v. Reed 154 6. Same — Although the sole of any article to a slave, without the con- sent of the master, specifying the article-, is a penal offense under the laws of this Stilts ; yet, if the contract has been fully executed, and the property delivered to the slave, it does not lie in the mouth of a third person, when sued by the master for a trespass to the property, to al- lege the illegality of the contract — Sterrett's Executor v. K:v ter 404 7. Validity of contract for be -•. — If the master knowingly per- mits his slave to acqniro money, and to pay it out to a third person, in a fair business transaction, be cannot afterwards reclaim it ; bu^, if such third person receives and holds the moiv y for the benefit of the slave, and as his bailee, and it is afterwards used, without the knowledge of the master, in purchasing the slave for himself from the master, the contract is void, and does cot divest the title of the master. — Webb v. Kel'y 344 8. Gift to slave. — There is no statute or rule of law in this State, which prohibits a, gift of old clothe3. or other articles harmless in their nature, to a slave, without the knowledge or consent of his master; but the title and possession, on the delivery cf the articles to the slave, must be referred to the'master. — Devaughn v. Heath 523 9. Validity of contract contravening policy cf public land-lau-s. — A. contract between A and B, by which it is agreed, that the former shall enter a tract of land, under the graduation act of 1854, (10 U. S. Statutes at Large, 574,) in his own name, but for their' joint use and benefit, and that the latter shall furnish the purchase-money, — being in contraven- tion of the policy of that stitute, as indicated by the affidavit required of the party making the entry, is illegal and void. — Smith v. Johnson. . 502 10. Difference between sale and exchange ; validity of nale of slave try wdia- negro-trader. — A contract for the exchange of two slaves, of unequal values, is not converted into a sale, by the payment of a mm o! money INDEX. 741 CONTRACTS—'continoed. for the difl" rence of value, and the insertion of a money value as the consideration in the bill of sale ; and on the other hand, if the transac- tion was really a sale of one of the slave-', which was void bj statute, (Code, §§ :j09, 400,)becans s the vendor was an unlicensed negro-trader, the accepta"cc of another slave, In part payment of the price, could neither change the nature of the contract, ner render it valid.— McGe- hee t. Rump 680 1 1, Alteration of written, by mbsequ mtract. — The maker and holder of a promissory note may, by subsequent verbal agreement, founded on Sufficient consideration, change the rate of interest which it hears ; yet the holder cannot, in a suit on the note itself, recover on such'modified coutract. — Hunt"s Executor v. Hall 634 12. Implied contract of lunatic. — Au adult person, 'who is non compos itis, is liable ou an implied contract foir necessaries furnished him, suitable to hi* estate and condition in life; and where uo guardian has been appointed for him, an action for the value of such neccss ries inusl -arily be prosecuted against him personally. — Ex parte Northing- ton 400 CORPORATIONS. 1. Judicial notio ons aichardnbh corporation. — The courts of this State will take judic'nl notice of the fact, that the society of free-ma- sons is a purely charitable corporal; n. — Burdine v. Grand Lodge of Al- abama 385 2. Competency of corporator a$ juror, and «-s- witness for corporation. — The so- ciety of free-masons being a purely charitable corporation, a member of the Bdbiety cannot be said to have the smallest pecuniary interest in the event of a suit to which the society is a party ; con equently, he is a competent juror, and a competent witness for the society 3S5 3 Varianci m description of corporation. — The society of free-masons in this State being incorporated by the name of the "Most Worshipful Grand Lodge of Ancient Free-masons of Alabama and its Masonic Ju- risdiction," and suing by that name, a charter granted by the ''Grand Lodge of thi- State of Alabama," authorizing the persons to wh< in it is directed " to form themselves into a regular lodge of ancient free-masons, by the name of Ymkville Lodge No. 131," sufficiently ap- n is-ii«'d by said corporation, and the misdescription not amount to a material fiance 385 4. What y means of the fal-e pret» use charged, the defendant obtained < "sixty five dollars in moil*-. lently definite and c rtain, with- out an additional averment of the value of the money 11 16. 8mm nt.-jjAa instrument of writing, purporting in its commencement to be atflfridcnture between two par- 744 IN ?^ CRIMINAL LAW— continued. ties, reciting that the pirty of the first part, for a valuable considera- tion, "has sold, and hinds himself to deliver, to the said party of the second part, all of his present crop of cotton now planted, or so much of it as will satisfy his indebtedness to the said party of the second part; that '• this conveyance is intended as a security fur the payment"' of a debt due fromAe party of the first part to the party of the second part, " which payment, if duly made, will render this conveyance void, a-ul, if def tult be made in the payment of the above sum, then the said a party of the second pirt, «ad his assigns, are hereby authorized to sell his certain crop of cotton, or as much of it as will pay all of his dues to the said party of the second part ;" and signed and sealed by the party of the first part, — is sufficiently described in an indictment as a "deed of trust, -1 and is admissible in evidence under that description 41 17. Adultery; sufficiency of indictment, — An indictment, charging that a man ami a woman "did live in a state of adultery or fornication,' 1 but not stating that they thus lived with each other, nor otherwise showing that they were guilty of a joint offense, is demurrable for duplicity. — Maull v. The S:ate C8 IS. Gaming ; wliat is public house. — A lawyer's office is a public house, within the prohibition of the statute against gaming. (Code, § 3243;) and where it consists of two rooms, front and back, connected by a door, in each ot which profe-sional business is transacted, the two rooms arc equally within the statute. — Smith v. The State 81 19. Same ; conviction on testimony of accomplice. — Where a witness testifies, thtt he was present while the several defendants played a number of games with cards ; that at the request of one of the players, who did not understand the game well, he sat behind him, and from time to time, during the whole continuance of the games, instructed him how to play ; that he took a card, on one or two occasions, from the hand of said unskillful player, and threw it down on the table for him, and, on one occasion, during the momentary absence of said player, played one of his cards for him ; and that he was also engaged in reading a part of the time, — the court may refuse to instruct the jury, that said witness was an accomplice, (Code, § o600,) and that a conviction cou'd not be had on his uncorroborated testimony 64 20. Betting at ten-pins; constituents of offense* — Under the act of 1S54, (Ses- sion Acts, 1853-4, p 30,) as amended by the act of 1858, (Session Acts, 1857-58, p. 267,) it is betting at ten-pin3, and not merely playing the game, that constitutes the offense ; but it is not necessary that the game should be played at one of the places enumerated in section 3243 of the Code.— Bass v. The^State 87 21. Same; conviction on testimony -of accomplice. — A person who engages in the game, and does not participate in the bettiDg, is not an accomplice, within the meaning of section 3C00 of the Code, which forbids a con- viction on the uncorroborated testimony of an accomplice 87 22. Gaming with slave ; xehat constitutes offense ; general charge on evidence. — To constitute the offense of playing cards with a slave or fr«- rt, in reference to the amount oi whir r a plantation slave 107 34. iS ■■/nig quantity of meat furnished to de- fi> . — The indictment having been found in May, 1SG0, and the prosecution having proved that, in the year 1S59, all the meat on the d<. i ndant's plantation was consumed by midsummer, and that meat was after wards sup plied to the plantation from his residence,— it ia com- petent for ; Mit to prove that, in December, 1^58, (outside of the time covered by the indictment.) a specified, number of bogs wi re killed on the plantation, the meat of which was kept theic for the use of the slaves 1 07 16. When indictment /;'« far f>rcnch of duly I Us suJJJ- cienrii — An indictment lies against the lessee of the city water-works of Mobile, for a breach of the public duty imposed on him by bis contract wit irate authorities, in failing to furnish the city with a sup- ply but, Bince his contract only hinds him to supply water to the city from Three-mile creek, and contains no stipulation as to the quality of the water to be supplied, an indictment which simply charges, in effect, that the water supplied by him was not good and wholesome, sli i> "f duty resulting from the contract. — St in v. The State .' *f 16. Nuisance; menl-lks, and its t -Selling and furnish- ing unwholesome and poisonous water to an entire community, is a nui- for which an indictment will lie ; but, if the indictment docs not ill defendant, his agents or Bervants, poisoned the water, W imputed to it its unwholesome quality, it must aver his knowledge of its unwholesome or poisonous quality 29 :t7. Same: —Under an indictment for a nuisance, in selling and furniekipg unwholesome water to an entire community, the prosecution ___^ INDEX. T4T CRIMINAL LAW— continued. may adduce evidence, showi Efecta "'' '■ ' watet on particular persons, members of the community, not named in the in-, dictmont 38. Same; admissibility of sla Ions.— The d complaining of sickness, and detailing kis symptoms, ai idence on tl case, though made to a person who is not ?. • -'' 3?. Statutory nuisdnce ; {ra[ ; on undei ■' nuisance Acts 1857-8, p. 285,) alt! reputnion it, or tha: of his »r traffic^ bod, it is not o should fi : to be proved ; nor i to permissioo or con >uld about his i , iot is it nee retailer. — & 40. 8 ent. — An u it the def< spt, or wa keeping of, a public I person habitually! about, iu form authorized by the third section of the ao1 • ' '' 41. . us liquors; removal of .'<'•' -The mere removal of a He count] . it under The State .- • ' 12. I. prohibiti I y of Liquor to "Bt >de, a to fermented liquors irit- cle v. The State 43. Same . f witness, admissibility lve ~ qucn; I; and who ca their ■■..•tout ::0t a r *8 com- ■ e v. The State of indictment* — L that cacl 46. * in indict,.. natur i giug to the jamu fai . hcuncit. :e the same. — Otwley v. Tl 748 ^5 L ?: CRIMLNAL LAW— coxTiN&ED. Also, Oliver v. The State. 41 Cheek v. The State 107 47. Sufficiency of verdict. — A goueral verdict of guilty, under an indict- ment charg rig two offenses, properly joined in different counts, is suffi- cient to authorize a judgment and sentence for the punishment pre- scribed for one of the offenses. — Cawley v. The State &'.> 48. Regularity of proceedings presumed, against irregularities of minute-entries in transcript. — The appellate court will not presume that the prisoner was tried and sentenced without an ind etinent, simply because the several minute-ent ics, showing the trial, conviction and sentence, are copied iltto the transcript before the indictmont 5v 40. Seriice of copy of indictment on prisoner. — If a copy of the indictment, as originally fouud by the grand jury, is served upou the prisoner while in confinement, (Code, § 3576,) the validity of the service is not affected by the (act that, a nolle- prosequi had been entered as to one of the counts. Scott v. The State S8 60. Change of venue; sufficiency of clerk's certificate to transcript. — On change of venue in a criminal case, if the clerk's certificate, appended to the transcript, states that it ''contains a true and complete transcript of the caption of the grand jury, and a copy of the indictment, with the en- dorsements thereon, together with the recognizances of the witnesses, and all the orders and judgments had in the case, all of which is as full and complete as the same appea-3 of record," — this is a substantial compliance with the requirements of the statute, (Code, § 3613.) 23 61. Same; sufficiency of certified transcript ; organization of grand jury. — Where the regular term of the circuit court commenced on the second Monday after the fourth Monday in October, which was the eighth day of November ; and the indictment, as copied into the certified trau- ecript on change of venue, purported to have been returned into court oa the ninth day of November ; while the transcript stated; in its caption, that the grand jury was organized at a term of the court begun and held on the second Monday after the fourth Monday in November, which was the sixh day of December, — held, that the transcript did not show- that the grand jury was organized at the regular term of the court ; but, if a;, wrong dite was inserted in the transcript by a clerical mis- prision, (there being a reversal of the judgment on other grounds,) the ' mistake nay be corrected before another trial. — Aaron y. The State. . 12 52. When objection to grand jury may be made. — The objection cannot be raised for the first time in the appellate court, that the record fails to show that the grand jurors were regularly selected, and euinnroued. — Bass v. The State 87 53. Competency of juror. — A mere occupant and tenant, under a yearly letting, of a room used by him as a sleeping apartment, is not a. free- holder, within the meamng of the statute (Code, § 3583) specifying the grounds of challenge to jurors in criminal cases. — Aaron v. The State. . 12 64. Challenge of jurors.— la all trials for capitaljor penitentiary offenses (Code, § 3585,) the State may, at its election, challenge for cause a juror who has a fixed opinion against capital or penitentiary punish- ments ; yet the statute does not impose on the court the duty, ex mcro ^ INDEX* - 749 CRIMINAL LAW— continued. molu, of setting aside a juror for this cause ; nor can the prisoner com- plain if the State waives or forbears to exercise ita right of challenge. Murphy v. The State 48 65. Oath of pc'it jury. — If the jury, in a criminal case, are sworn "well and truly to try the issue joined," this is a substantial compliance with the requisition of the statute, (Code, j? 3478,) and is sufficient. — McGuire v. The State G9 66. Jurisdiction of State courts to discharge person in custody for violation of criminal laics of United States. — The courts of this State have now (July 9, 1861,) no jurisdiction to discharge from custody a person who was ar- rested prior to the passage of the ordinance of secession, charged with a violation of the criminal laws of the United States within the limits of the State of Virginia; the question of his right to be discharged, or his transfer to the proper court iu Virginia for trial, appertaining to the jurisdiction of the district court of the Confederate States ; — Ex parte Kelly 01 57. Jurisdiction of probate judge to revise proceedings of magistrate under ]>eace warrant. — A probate judge has no jurisdiction, on habeas corpus or other- wise, to revise an order made by a justice of the peace, requiring a party to give security to keep the peace, and directing his imprisonment until such e ecurity is given ; the only mede of revising the action of the justice, is by an appeal to the circuit court under section S361 of the Code. — Ex parte Cobui n 117 DAMAGES. 1. For breach of contract. — In an actios for a breach of contract, — by which plaintiff agreed to serve defendant, in the capacity of an overseer, for the term of one year, but was discharged, without fault on his part, be- fore the expiration of the year, — if the suit is commenced before the expiration of the year, the plaintiff can only recover unliquidated dam- ages for the breach of contract ; and it cannot be assumed, as a matter of law, that the stipulated wages for the entire year would be the mea- sure of damages. — Wright v. Falkner 231 2. Fbr breach of warranty of soundness of daw.— In ascertaining the pur- chaser's damages, resulting from a breach of warranty of »he sound- ness of a slave, proof of tbe value of the slave a lew months after the sale is admissible, as shedding light on the question of value at the time of the sile.— Stone & Best v. Watson 288 8. Same; proof of medical bill, as part of damages. — It is permissible for the purchaser, in an Action to recover damages on'account of the un- soundness of a f-lave, to prove at whose request a physician whs called in to the slave, and as whose property the physician attended her ; but the physician's accou i t for services rendered to the slave, which was paid by the purchaser, is not admissible evidence for him, until it has been proved that the services were rendered as charged, for the treat- ment of a disease existing at the time of the sale, and that .the charges were correct ,.. 238 -4, For ovtrjlrxing land. — In as action to recover damages for overflowing 7 50 * £NDEX. DAMAGES— continued. lands, a recovery cannot be had for injuries accruing after the com- mencement of the suit; but evidence of such injuries is admissible, with a view ef affording information to the jury of the consequences of the diversion under similar circumstances before suit brought. — Pol- ly v. McOall 246 5. Inaction on attachment bond — In an action on an •;, if the attachment was not vexatious as against the def ndant in the pro- cess, the fact that the attaching creditor was actuated by ma'ice to- wards a third person, who, though a joint obligor ftith the defendant in attachment, was not a party to the pro Is no ground for the recovery o! vindictive damages. — Wood v. Barker , SI 1 6. In — On the execution of a writ of inquiry, after judg nent by default, in trespass for takinj prop- erty, the fact that the property was, at and before the l«vy of the exe- cution, which constituted the trespass complained of, in the possession of the defendant in execution, is competent evidence for the defendant, in mitigation of damages, as tending to show that he acted in go d faith in having the levy made. — Sterrett's Executor v. Kasti r 404 I. Sum. — In such case, the judgment by defauH estops the defendant from Bhowing, even in mitigation "of damages, that the plaintiff had not such a title as would authorize a recovery ; yet he nviy s' ow, in miti- gation, that the plaintiff was not the owner of the property, a<5 that fact is not necessarily inconsistent with the plaintiff's right to recover.. 404 8. In trespai ■■ . — In trespass quare elan ihejury, asserting that they can not give vindictive darniges, "unless they be- lieve from the evidence, that the defendants maliciously entered upon the plaintiff's finds, in a rude, aggravating, or insulting raauneiy' is er- roneous, because it improperly restricts the standard of liability. — De- vaughn v. Heath 523 9. In action for breach of promise to marry ; ad vation of damages. — If evidence of seduction can be received, in any case, to aggravate the damages in an action for a breach of promise to marry, it is only whore the seduction follows the p-oinis,:, an d is effected by means of it : seduction prior to the promise is not ad a issible evi- dence.— Espy v. Jones 454 10. Same; , tuff's leant of chastity in mitigation \i)f dama- ges. — Acts of fornication, committed by the plaintiff prior to the defend- ant's promise to marry her, and in which the defendant himself partici- pated, are not admissible evidence for him in mitigation of the dam- ages 454 II. On. affirmed judgment*— On the affirmance of a judgment which hi been superseded, (Code, § 3032,)' the ten per cent, damages should be computed oh the amount of the original judgment, and not on that sum with interest-' thereon up to the time of the affirmance. — Lawrence v. I Jones 617 » V DEEDS. ,«' 1. Consideration. — Love and affection for a grandson is not a valuable con- sideration for a deed. — B:rum v. King's Adm'r '34 I ^-' INDEX. 751 DEEDS— CONTINUED. % 2. Desa 'ted in indictment — An instrument of writing, purporting in its commencement to bj an indenture between two parties, reciting that the party of the first part, for a valuable consideration, " has sold, ana bin If to deliver, to the said party of the second part, all of his present crop of cotton now planted, or so much of i atisry his ind to the said party of the second part;" that " this eon- veyan le 1 as a security for the payment" of a debt due from the p . first part to the party of the second part, " which pay- ment, if duly ma le, w 11 render this ■ be , • made in th above sum, then part, and ' are hereby authorized tin crop of cotton, pr b '■< as will pay all of hh the Bee led by the party [bed in an indictment as a "deed of tru admi der that description.— Oliver v. The State. . . 41 3L Delivery or d .—At common law, in the ab- sence of an • »,f the property itself, a gilt could on conM r other instrument under seal; not because ^7 the delivery oi dicfcl delivei proper- * ty, but . pie of estoppel. —Connor v. Trav • .< . 4. A -Par >1 evidence is admissible, to show thai a nd tf as in fact executed on a different day «' J[j from thai stated in it. — Miller v. II unptdn 3jL7 See, also. Frauds,- Statute of. +. r DEPOSITION jf a 1. '.-. — An objection to' a deposition, on the ground. that no no en of the time and place :it which it would be taken, canm' tide when the deposition is offered^ a evi- dence on I McGill v. Monette , 285 2. G .'..ion to "each sentence of each de- position," is nothing more' than a general objection to each deposition : and i' ".stion contains soi rideoce, sueh objection may be over: i, —Taylor v. Strickland 571 3. Ob — When a deposition^ laken with- out filing o objection to a qriestwo, on the ground that it i=t le it the examination of the witness, andjeomes too ! tor the (ir~t time at the trial.— Memphis tjjb >rles- ton I Bibb v .- *. . . V r. . . . 630 4. Noisup R -T^lr'lficV'that ami a led, i taken, fiy Btrik- •:' tin'. pl;i ntift's, who wu d< ad. "a t/tho' com- mencement of t Ot a sufficient ground for to tog of Such .irh r t4% 140 •'■ I £Scle, that the act 'to compel the pergonal attendant 1 *-' of witnesses in civil cases." •7-8, p. 34,) docs not apply to aw je confiaod in jail mider a judicial sentence; but, if the proper affidavit has been 752 INDEX. DEPOSITION— continued. made, and the attendance of the witness can*be procured, the deposi- tion ought to be suppressed. —Webb v. Kelly 349 6. When deposition of party may be taken. — When a party is competent to testify in his own favor, his deposition may be taken, as in case of other witnesses. — Douglass v. M. k W. P. Railroad Co 6G6 DETINUE. 1. Release of surely on detinue bond, and examination as witness. — The surety on a detinue bond may be released, and examined as a witness for his principal, on the execution by the latter of a new bond, with other good and sufficient sureties ; but it is not permissible to er.ise the surety's name from the bond, against the objection of the obligee, and substitute the name of another surety in his stead. — Webb v. Kelly 349 DISCONTINUANCE. 1. Of summary proceeding. — A summary proceeding by notice and motion -..will be discontinued, unless some action is had on the notice at the re- turn term, although the "stay-law" prohibits the rendition of judgment at that,term ; vet the plaintiff may keep alive his notice, by having it docketed, according to the rule of practice adopted at this term, or by ''sorae'acfion of the court continuingits existence. — Ex parte N. E. & S. W. Railroad Co 608 •DOWER. 1. JExtent of widow's quarantine. — A plantation, about five miles distant from the town in which the husband resided at the time of his death, from he drew his supplies and derived his entire income, and the super- intendence of which constituted his only bus ; ness. is not so connected with his residence, (Code, § 1359,) as to entitle the widow to the posses- sion or rents thereof, until her dower is assigned. (A. J. Walkkr, C. J., dissenting.) — McAllister v. McAllister 366 2. Mesne profits, and measure thereof. — After dower has been allotted to the widow by the probate court, she may come into equity to recover dam- ages for its detention ; and the measure of her damages, where the hus- band left no descendants, would be one-half of the rent, from the death m of her husband, until the assignment of dower 366 3. When probate court may assign dower. — In proceedings before the probate court for an assignment of dower, (Code,§§ 1860-72,) it is no defense to the application, that the lands in which dower is sought, and of which the decedent died'seized and possessed, are in the possession of a third per- son, who "claims an undivided half inteiest in them, undera contract be- tween hinVaud *the decedent, by which it was agreed, that the latter should enter the lauds, under the graduation act of 1854, in his own name, but for their joint use and benefit, and with money furnished by the former : such. contract being illegal and void, the person in posses- sion is not an alienee of the decedent, and the fact that he has made val- uable improvements on the land does not take away the jurisdiction of 4 tke probate court. — Smith v. Johnson 662 INDEX. 753 EASEMENT: See Advkrse Possession, 4, 5. ELECTION. See Cbancbby, 14. Criminal Law, 32. ERROR AND APPEAL. I. Wiikn AvrEAL Lies. 1. From probate decree. — A decree of the probate court, which purports to have, been rendered on final settlement of the account? and vouchers of the administrator of an inso'vent estate ; which corrects certain sup- posed errors and mistakes in a former settlement, thereby showing a larger balance in the administrator's hands for distribution among the creditors, and declares the former settlement to be partial only ; and by which " it is considered and decreed," that the claims allow the former settlement, wfJich were then declared entitled to a dividend Of eighty per oent, " be paid in full, and that whatever sums shall re- main, after the satisfaction of said allowed chums among the four minor heirs of" the decedent, — ha? not the requisites of a tinal decree, and will not support an appeal. — Watt's Adin'r v. Watt's Distributees 4.67 2. From judgment of f tuit, —A nonsuit may be taken, with a bill of ex- ms, (Code, ? 2357, )i in conscqucuce of the suppression of the pi. Stiff's deposition, on motion, before the trial is entered upon. — Douglass v. M. & W". P. Railroad Co 556 II. Bond, and Security kor Costs. — da appeal from a judgnunt of the cir:u t court, dis- missing a petition for rehearing after goal judgment. (Code, §§ 2407- 15.) th ■:• surety on i ' u liond, bciDg a party defendant to the Jed from, cannot become a surety for the costs of the appeal ; and if there is no other surety for the costs, (Code, § 3041,) the appeal w ill be dismissed on motion. — D<;v's v. MeCampbell III. Practice.' 4. What u rentable. — In civil causes, the appellate court will not noi" any l - ■:' error which is not insisted on in the argument of the appellant's counsel.- -McGill v. Monette .• Wi in garnishment. — The allowance of a set- off claimed by the garnishee, agaiust the claims admitted by him I due ( . !ant, or to his transferrer, is not a matter of whic plaintiff can complain on error, when the record shows that he cor- thc claims, and that the jury fou: e in favor of the 6. b i or ftdmh. tr.tT canuot complain, on error, of the allowance of compensation to tardian ad sounta an.i ndiced — Ai son's Executor v. Anderson's Heirs 50 754 IND&g. _______ ERROR AND APPEAL— coxtin. 7. Error without injury in admission and subsequent withdrawal of evidence. The erroneous admission of evidence, which is afterwards withdrawn from thejir.7, and whLh they are expressly instructed by the court not to regard lor any purpose, is, at most, cr.or without injury. — Wiliiain* v. Ivey 220 8. Szmc, in admission of redundant evidence. — Where the probate of a will 18 shown by a transcript from the records of the proper court, duly cer- tified, other parts of the transcript, containing entries relating to (ho testator's estate, which can have 1.0 cher effect than to strengthen the conclusion that the will was admitted to probate, are merely redundaut evidence ; and their admission as evidence is, at most, error without in- jury. — Jeiuison v. Smith 140 9. Softie, in sustaining demufrer to special ylea. — The sustaining of a demur- rer to a special plea, if erroneous, is not available to the defendant, when the iefrord shows that he had the full benefit of the same defense under the general issue. — Kannady v. Lambert 814 10 Safne, in refusal of charge ashed. — Since the statute (Code, § 2S55) im- peratively reqwircs, that a charge to the jury, if correct and not ab- stract, must, be given in the language in which it is asked, the doetiine of error without injury cannot be applied to the refusal of sachchwrge, although the legal proposition embraced in it was substantially enunci- ated in another charge given by tha court. — Polly v. McCall 246 11. Presumption in favor of ruling of primary court. — In a probate cai where the correctness of the ruling of the primary court depends on the proof, and the record does not purport tj set out all the -evidence on wh eh the probate judge acted, the appellate court will presume that his decision was justified by the evidence. — Ward v. Cameron's Adm'rs 622 12. S'.tme. — When a charge is requested, which, on the facts hypothetical- ly stated, asserts a correct legal proposition ; but those facts might be met and avoided by proof of other facts, which would render the charge erroneous, — ; f the bill of exceptions does not purport to set out all the evidence, the appellate court will presume, in favor of the ruling of the primary court, that 6uch additional facts were proved. — McLemore v. Nuckolls 59 1 13. Same. — So, the appellate will presume that'a charge given was not abstract, when the bill of exceptions does not purport to set out all the evidence 591 7, 4. Same. — When no pleas appear in the record, the appellate court will presume that proper pleas were filed to let in the evidence which the primary court admitted. — Wynne x: Whisenant 282 15. Same. — In a criminal case, the appellate court will not presume that the prisoner was tried and sentenced without an indictment, simply be- cause the several minute-entries, showing the trial, conviction and sen- tence, are copied into the transcript before the indictment. — Cawley v. The State .• 59 16. Prenumjption of injury from error. — If evidence is erroneously excluded by the primary court, on a single specified ground, the appellate court will presume injury from the error, although it appears that the evi- INDEX. 75S ERROR AND APPEAL— r ontinied. dcnce was, prima facie, inadmissible en another ground, ttliieh, if the objection had there been raised, might have been obviated by the intn - duction of other cv.dence. — Moseley's Adm'r v. Mastin IT 1 17. Sctmz. — Under the Code, (§ 2255,) if plaintiff amends bis complaint, after the couit has sustained a demurr r to the original, and pro to trial on the amended complaint, he does not thereby waive his right to a= sign as error the judgment on the demurr 1 shows that, in. ci > of the amendment, he Loo injury I y that judgment. (Overruling 34 Ala. 652, and lim- iting ' lommenoi d b fore the Code.)— Williams v. Ivey » 280 18. D in the affirmance of a judgment which been superseded, (Code, § 3032,) the t n per cent, damages should be computed on the amount of the original judgment, and not on that sum with the interest thereon up bo the time of t'ie affirmance. — Lawrence v. Jones t G17 ESTATES OF DECEDE3N 1. Ad . or property, given by a parent to a child, will Vic pr SUtned to have been inteuded as an advancement, unless such pr sumption is repelled by the nature of the gift, or by ether evidence showing that it was intended as an absolute gift. To show that an ac- ute gift, and not a mere advancement, was intended, the eontempoia- neou- declarations of the pan-nt are admissible evidence for the child ; "and when the q i distributees, there is much «on. as well as authority, in support of the proposition," that the subs quenl declara I parent, expressive of his intention in parting With the property, are admissible evidence for the same purpose. But in this case, conceding the admissibility of such subseqiii nt declarations, and ectfon with the other facts proved, they arc not suftl ient to show that i court erred in deciding thai prop' rty ■<] as an advancement. — Autrcyv, Autrey's Adra'i y.— In :ases of paHlal Intestacy, ad ance- not required to be brought into hotchpot, (Cod. utitle the parties to share in the property undisposed of by the will.— Execul r V. Speer and Wife 400 :t. Vi . — A plantation, about live miles distant from the town in which the husband resided at the time of his death, from which h«* drew his supplies and derived his entire income, and the superi- or which constituted his only bus' ne68, i.-? not so con? ■ entitle the widow to tl i :. until her dower is assigned. (A. J. Waikxr, C. J., 3Cti nst the estate of a deci a»ed j» rs< bai . ntative wit months after the grant ol en'arvor of administration, (C" representative to givo notice to creditors, as rtquin tatute. — Bosk of Mont- gomery v. Plannett's Adm'r r ! 756 INDEX. ESTATES OF DECEDENTS— continued. 5. Validity of order of sale by probate court, for division. — An order of the probate court, for the sale of a decedent's lands for the purpose of divi- sion among the heirs, obtained by an administrator de bonis non legally appointed, is not reudcred void by the prior descent of the land to-the heirs, the payment of all the debts, and the distribution of the personalty by the administrator in chief: although those facts might constitute good grounds of objection, in the probate court, to the granting of the order. — Watson v. Collins' Adm'r 515 6. Distribution of estate by content. — Where the slaves belonging to a d' ce- dent's estate remain undivided, after the payment of his debts and the final settlement of the administration on his estate, and are afterwards divided by consent among the several distributees, who execute recip- rocal conveyances to each other for their respective shares ; — the hus- band of oneof the female distributees thereby acquires a complete equi- table titie to the s'aves allotted to him and his wife; and, on his death, while thus in possession of them, his personal representative is charge- able -with th( m as belonging to his estate. — Anderson's Executor v. An- derson's Heirs ,. . . 612 See, also, Executors and AdmikistbaIOBS. -»• ' PEL 1. By bond. — The sureties on a bond, which recites that the prin- cipal obligor '-has been duly elected intendaut of the town of C, and is thereby made ex officio a justice of the peace," are estopped, when sued on the bond for the default of their principal, from alleging that he was not a justice of the peace ; it appearing that he was a f least a justice de facto, and received much business as a justice on the faith and credit of the bond. — Williamson and Me Arthur v. Woolf 296 2. Same, and en pais.— A delivery bond, executed by the defendant in det- inue, which does not recite any fact showing that the defendant had possession of the property at the service of the writ, does not estop him from showing, in defense of the action, that he did not have the posses- sion of the property at that time; nor does the giving of such bond operate an estoppel en pais against him.— (Explaining aud limiting Wallu v. Long, 16 Ala. 73JB.) — Miller v. Hampton 35? S. By deed. — At common law, in the absence of an actual delivery of the property itself, a gift could only be consummated by deed, or other in- strument under seal ; not because the delivery of the deed was held a symbolical delivery of the property, but on the principle of estoppel — Connor v. Trawiek's Adm'r 253 4. By judgment. — On the execution of a writ of inquiry, after judgment by default, in trespass for taking personal property, the judgment by default estops the defendant from showing, even in mitigation of damages, that the plaintiff had not such a tit'e as would authorize a recovery ; yet he nay show, in mitigation, that the plaintiff was not the owner of the property, as that fact is not uecessarily inconsistent with the plaintiff's rixbt to recover. — StCtrett's Executor v. Kaster 404 k INDEX. 757 ESTOPPEL— CONTINUED. r. Conclusiveness of ad '. — When a bill in chancery, under oath, is offend i'i evidence against 'he complain mt in a subsequent suit, he is not thereby (.stopped from denying its averments. — McT-emore v. Nuckolls 591 EVIDENCE. I. Admissibility and Rilkvanct. 1. Rel nee by common Carrier. — Irian action against a common carrier, to recover damages for injuries to (or where the same matter in relied <>n as ;i de- fense against an action by him to recover freight,) the fact that similar goods, shipped by sea to the port of delivery, us'.ally arrived safe and uninjured, would be admissible evidence against bim, as a oircumi tending to show t at any damage by breakage was the result of negli- gence ou his part; and - eonverso, the fact that such goods usually ar- rived in a damage ! and broken condition, is admissible evidenc for him, as tending to show that the breakage was not the .result of negli- gence on his part. (Explaining and 1 miting first head-note in O'Qrady . v. Julian, 34 Ala. 88.)— Steele k Burgi sa v. Townsend 201 2. St 1 1 nt of slave — One of the questions in the ruse being, whether the purchaser was guilty of negli- gence in his treatment of a female lave, during the time she remained in his possession, b tore he tendered her back to the vendor ; and it having been proved that, ti s badly burned, while in his pos- session, by the accidental exp'osion of a fluid lamp, whereby her value was greatly impaired, and was afterwards sent, by him, by the public to the place of the vendor's residence, — it is permissible for him to prove that the slave violated his orders in using the lamp, and that he was advised by a physician, whom he consulted, that he might send her by the »t ige with pafety. — Stone & Best v. Watson 286 :; /' -In ascertaining the purchaser's damages, re- sulting from a breach of w.rranty of the soundness of a slave proof of the value of the slave a few months after the sale is admissible, as shed- light oo the question of value at the time of the sale 2<% ibed in the bill of sale as a seamstr bs, it i* p jrmis lil le I >r the purchaser, in an action to recover damages on ac- coun' of her unsoundness, to prove what would have been b. r value, if sound, ''t.king into oo D the fafct that she was a good, 'No. 1 seamstress " 986 .-.- In proving th< \ aluc of a slave, o witness cannot be allowed to • value ■won: • which she 2C»S 8. /' —It is permissible for the in an action to it of the un- soundness of a slave, W;!S called In to the slave, and as who*e proper! ian attended ber ; but the physician' re, which WAS paid by the pan for him, until : been proved that I, for the treat- 763 INDEX D EN CE— CONTINUED. ient of a disease existing at the time of the sale, cud that the eh - were corree t , 7. Relevan iss. — In trespass for an assault and bat- tery, and for false imprisonment, evidence of an arrest and fmprisc men* without legal process, or under legal process which is void on its face, is relevant and admissible ; sccus, as to evidence of an arre6t and imprisonment under process which is not void on its face. — Williams v. ivey 198 -On the execution of a writ of in- quiry, after judg nent by default,, in trespass for taking personal prop- erty, the fact that the property was, at and before the lnvy of the cation, which constituted the trespass complained of, in the possession cf ;.he defendant 'n execution, is competent evidence for the defendant, in mitigation of damages, as tending to show that he acted in good faith in having toe levy made.— Sterrett's Executor v. Kastf-r 404 '.>. Same in action for •breach of pri arry ; seduction. — If evidence of seduction can be received, in any case, to aggravate the damages in an action for a breach of promise to marry, it is only where the seduction follows the p-omise, and is effected by means of it : seduction prior to fhe promise is not admissible evidence.- Espy v. Jones 10. Stme ; want of chastity. — Acts of fornication, committed by. the plaintiff prior to the defendant's promise to marry her, and in which the defendant himself participated, are not. admissible evidence for him it) mitigation of the damages 454 11. & erflovnng land. — In an action to recover damages for overflowing lands, a recovery cannot be had for injuries accruing after the commencement of the suit ; but evidence of such inj tries is admis- sible, with a view of affording information to the jury of the consequen- ces of the diversion under sifiailar circumstances before suit brought. Polly v. M cOa'l 246 12. R Uh.—In trover by the wife, after the death of the husband, for the conversion of a slave belonging to her statutory separate estate, which went into the defendant's possession under a mortgage executed by the husband with- out authority of Liw, and was accidentally drowned while thus in his pusses-ion, it is wholly immaterial whether the death of the slave currcd before or after the death of the husband; consequently, the ex- clusion' of evideuce bearing on that question is not a matter available on erf or. — Patterson v. Flanagan. 427 13. Proof oj\ demand by-judgment and receipt. — In an action by t!:e bailee of goods, agdnst the owners of a steamboat, for negligence, the fact in issue being, whether the owners of the good* had demanded of plaintiff compensation for the damage sustained; the record of a judgment re- covered by them against him, for the injury to their goods, and their re- ceipt for the money paid by him in satisfaction of their demand competent evidence to prove the demand. — MeGill v. Monette 2So 1 J -- i' e. — Where the probate of a will is shown by a trans- cript from the records of the proper court, duly certified, other parts of the transcript, containing entries relating to the testator's estate, INDEX. ToO EVIDENCE— CONTINUED. which can have no other effect than to strengthen the conclusion that the will was admitted to probate, are merely redundant evidence; and their admission ns evidence is, at most, error without injury — Jemison v. Smith 140 15. Homicb 'bility of character ofdeazised, as evidence for prosecution. On a trial for murder,, the prosecution cannot adduce evidence of the peaceable character of the deceased, when it has not been assailed by the prisoner.— Ben v. The State !) 16. Disturbing nlijious worship ', < Under an indictment for disturbing religious worBhlp, the defend ml has aright to adduce evidence of his good character ; but, until he has done so, the prosecu- tion cannot 'prove his bad character as a disturber of public worship. Harrison v. The State 61 17. B of disturbance, — Evidence of the fac:. that sim- ilar a< arbanee hail been perpetrated by other persons in the same church, without objection or notice on the part of the meuib irrelevant, and inadmissible CI 18. / ■:ncr. — Und'-r an indictment for a nuisance, in selling and flirniahin 'unwholesome water to an entire community, the prosecution may adduce evidence, showing the deleterious effects of the Writer on particular persons, members of the community, not named in the in- dictment. — Stein v. The State ■ .—The indictment having beeu found iu May, ISfiO, and the pros"eutiou having proved that, in the year 1859, all the mi at on the defendant's plantation was Consumed by midsummer, and tbatmeatwas afterwards supplied to the plantation from ce, — it is competent for the defendant to prove that, in December. i£5S, (out- ( the time covered by the indictment,) a specified number of hogs w, re killed on the plantation, the meat of which was kept there for ti.e use of the slaves.— Check v. The State 107 II. Admissions, Oosj Declarations, R 20. J /. — The declarations of a person who ins the - lion of slaves, lo the effect "that they had been leaned to him by the widow of S., and were held ondi r the will of S., to be returned al to be divided as directed by-said will," are competent evi- dence against a Bub-purchaser from him by subsequent cot. tract : so also are his declarations, " that there was a dispute about the title, and he JUCh title as he got from the Bberiff.as he-was informed that the hi irs of 8. would claim them at tho death of his widow.'' — Jem '• son v. Smith \i0 81. A Plain vl having proved, that t'. y were not y tlie idant in the schedule "f liis tax ible property, wh to the assessor on oath, and werr- ::-. liudi I ; property, which .me time by . in the defendant's presence; lowed, for the purpo-e of rebutting the presumption arising from this <•', [di pi ovc that 760 ' INDEX. . EVIDENCE — cosmnujh), be afterwards corrects i his schedule, and what reaoons he then assigned to the assessor for his former conduct; and the fact that, when first giring in his schedule, "he asked leave of the assessor to correct any mistake, and said something about getting advice. - ' does not affect (he principle. — McGehee v. Mahone 212 22. Admissibility of parly's for him. — The declara- tions of a party are, prima facie, not admissible evidence for him ; and the fact that a witness, when cross-examiued, "for the Fole purpose of coutradict ng him/' touching his own declarations at a particular time and place, states "that he cannot answer the question without giving the declarations of the defendant made at the same time,'' is not. of it- self, sufiioient to show error in the exclusion of the defendant's declara- tions 212 23. / explanatory of possession, and against interest.— Declarations, m.ido by a person who has the p session of a slave, to the effect that he holds under a will, and claims only a life-estate in the slave, are competent evidence on the principle of res gestae, and as admissions against interest, without the production of the will. — Patterson v. Flan- agan A 127 24. Declarations of rendu- and his administrator, showing refusal and inability to make title.— In an action on a title-bond, against- the personal repre- sentative of ihe vendor, the declarations of the vendor in his life- time, and of the d -fondant after his qualification as administrator, showing a refusal and inability on the part, of each to make title, are competent evidence for the plaintiff. — Bedell's Adm'r v. Smith 54S 25. Admi: tui (jar trust admissible against trustee. — In an action brought by the trustee of a married woman, suing for her use, hor ad- missions are competent evidence against him. — MeLemore v. Nuckolls, 591 26. Admissibility of bill in chancery as evidence in another suit. — A bill in chancery, sworn to by the complainant, is competent evidence against him in another suit ; and the fact that the complainant is a feme covert, suing by her next friend, does not vary the principle 591 27. OonclU8wene8S of such admission'. — When a bill in chancery, under eath, is offered in evidence against the complainant in a subsequent suit, he is not thereby estopped from denying its averments 691 28. Declarations of grantor, t. — To show that an ab- solute gift, and not a mere advancement, was intended, the contempo- laneous declarations of the parent are admissible evidence for the child; "and when the question arises between distributees, theieismuch rea- son, as well as authority, in support of the proposition," that the sub- sequent declarations of the parent, expressive of his intention in parting with the property, are admissible evidence for the same purpose. — Au- trey v. Autrey's Adm'r 542 29. Admission of one defendant, in action against two. — In an action against two defendants, the admission of one, being competent evidence against the maker, cannot be excluded fioni the jury on motion ; his co-defend- ant must limit their operation by a request for proper instructions to the jury.— Polly v. MeCall 246 30. Admissibility of dcclar itiohs as part of res gesta, — The declarations of the IN T DEX. 761 EVIDENCE— CONTINUED. plaintiff in attachment, to his attorney, as to his reasons for suing out the writ, arc admissible evidence, in an action on ihe attachment bond, as a part of tbe res gestae. — Wood v. Barker 311 31. Same, — The declarations of the vendor of a slave, made "a few days after the sale,' 1 to the effect that, If he had known that tbe slave was not going to Texas, (whither the purchaser had represented that he intended to carry him.) he would not have sold him, are not evidence for the de- chrant, as a park of the res gestae, in a suit, involving the validity of the sale.— Webb v. Kelly 849 32. D -The declarations of a save while sick, as to the nature and symptoms of his disease, are competent evidence on the priuciple ol - well as 1'oin theneces-iiy of the case, although mode to a person who is not a physician. -^Stein v. The State 29 Aho, Stone & Best v. Watson 286 33. Confessions >u criminal case. — The constable who had the custody of the prisoner, a Slave, having said t'o him, ''If you did it, you had better con- fess ; it w«m d be best for you to tell the truth; truth is always the best policy; but, it you did not kill him, we don't want you to say so," — held, that there was nothing in these facts to show that the prisoner's confes- .tly made to the constable in the same conversation, were e!ici;ed through the influence of either hope or fear ; and that the confessions were admissible evidence. — Aaron v. The S:ate 12 34. Dying declarations. — The dying declarations «of the deceased, re- specting the state of feeling which existed between himself and the prisoner, arc not competent evidence for the prosecution. — Ben v. The State 9 36. Books if science, — Extracts from standard medical books arecompetent evidence, and may be read to the jury.— Merkle v. The Stare 45 III. Burden of Proof. 36. On ■ i.tylitjcncc by common carrier. —Where the bill of lading contains an express Stipulation, that the carrier is ' not accountable for rust or breakage," proof of injury to the goods by breakage neverthe- nat & prima-facic case of negligence against him; and the - • exercise of due care and vigilance on his part to prevent the injury; unless t'/c nature of !'• inj ry, or of ••If furnishes evidence that due care and dili; could n<.t hive j, r . vented the injury. — Steele & Burgess v. Townsend. . 201 37. On question prove due in enforcing the d< • on : but wheth gently failed to procun y, or failed to i r obtainn g . ■ ■ e of proper diligence, he might hav. :. — Wilkinson v. Hunter 88. On question of prescriptive easement. — If a person divert waters from'its 51 762 INDEX. EVIDENCE— CONTINUED. natural channel, by means of a ditch and levee on his own lands, and thereby injuriously overflow? the lands of an adjacent proprietor ; and this injury continues, without increase, for ten years, —the jury may in- fer from these facts, in the absence of all other evidence, that the use was adverse, and of right. — Polly v. McC.tll 246 i)9. In proceeding for recovery of legacy. — Iu a proceeding before the pro- bate court, after the expiration of eighteen months from the grant of letters testamentary, for the recovery of a residuary legacy, from which is to he deducted, by the terms of the bequest, a debt due iroui the tes- tator to the legatee, it is incumbent on the legatee, and not the executor, to prove the amount of the indebtedness to him ; and unless he makes such proof, and thereby shows that there will be a sufficiency of asset? remaining in the bauds of the exeeutor to pay all the debts, chargea, and prior legacies, he is not entitled to a decree. — Bush and Wife v. Cunningham's Executors 327 40. la action on special contract and commoii counts. — In an action against an incorporated railroad company, founded on an instrument of writing executed by its secretary and treasurer, which, ai't. ant must limit their operation by a request/or proper instructions to the jury.— Polly v. McCall 24G 51. Error without injur;/ in admission and subsequent withdrawafyf evidence. — The erroneous admission of evidence, which is afterwards withdrawn from the jmy, and which they are expressly instructed by the court not to regard for any purpose, is, at most, error without injury. — Williams v. Ivey 220 VI. Opinion. 52. At to v.atur .'■/)/ of liquor. — A witness who has frequently drunk fermented liquors, and who can distinguish them by their taste, though he has no special knowledge of chemistry, is to expre on on the question, whether lager beer is or is not a fermented liqui r. - Merkle v. The State 45 -Under an indictment for willfully or mali- ciously .- i rqale, a witness who was acquainted with the mule both before and after the infliction of the injury, but who has do >kill in veterinary or medical science, may state his opinion as to the extent of damage caused by the wound. — Johnson v. The State. 72 64. As expat. — A person who has ecrved in the capacity of an overseer 764 INDEX . EVIDENCE— CONTINUED. oil plantations for sixteen months, is competent to give his opinion, as an expert, in reference to the amount of food which is sufficient for a plantation slave. — Cheek v. The State. 107 55. To what witness may testify. — A witness may testify that a slave looted sick,- although he is neither a physician, nor an expert — Stone & Best v. Watson 2SG VII. Parol and Written*. 56. Admissibility of parol to vary date of deed. — Parol evidence is admissi- ble, to show that a deed'-or bond was in fact executed on a different day from that stated in it. — Miller v. Hampton. '. 357 57. Same, to affect hill of sale. — If the parties to a contract, for the sale or exchange o! two slaves, reciprocally execute to each other bills of sale, which show on their face that the transaction was a sale ; and an ac- tion is afterwards brought on one cf these bills of sale, to recover dam- ages for a breach of the warranty of soundness contained therein, — parol evidence is admissible, to show that the contract w. S. and J. S. were "sworn executors;" and other entries, showing that the persons so appointed discharged several exe- ^ cutori.il duties, and were recognized by the court as executors, -must, „.- • under the constitution and laws* of that State, ns proved in tins case " he regarded as .showing the probate of the will, and the appointment and qualification of the executors .\ . . - 140 .66. .- of time. — Authorities" cifSJjjTon the question, whether the probate of a will, Dearly sixty years ohj"would be presumed from lap-e of time, under the circumstances of^thie case MO 'iiy of record as em .wit. — In detinue for a- slave) brought by the vendor against the purchaser,.— -the material inquiry being, whether the purchase-money was furnished *by the defendant , or by the slaT himself; and the defendant, for 'The pyjJSsfiTpf showing that the plaintiff, before the sale, "knew'ftfat the sl.ve'h'rid moi ey, .and permitted him to have, use and die competent evidence to prove tin de- mand. — McGcill v. Monette 285 XI. Substance or Proof, and Variance. TO. Variance in description of corporation. — The society of free-masons in this State being incorporated by the name of the " Most Worshipful Grand Lodge of Ancient Free-masons of Alabama and it- Masonic Ju- risdiction," and suing by that name, a charter granted by the "Grand Lodge of the State of Alabama," authorizing the persous to whem it is directed "to form themselves into* a regular lodge of ancient free-masons, by the name of Yorkville Lodge No. 131," sufficiently ap- pears to^iave been issued by said corporation, and the misdescription does not* amount to a material variance. — Burdiue v. Grand Lodge of Alabama : 385 71. Same, in action en note. — The maker and holder of a promissory note in>y, by subsequent verbal agreement, founded on sufficient considera- tion, change the rate of interest which it bears ; yet the holder cannot, in a suit- op, the no'e i'self, recover on such modified contract. — Hunt's Executor y. .Hall,. * 63* 72. Same, in claim against insolvent estate. — When an attorney's receipt for • a note, placed in uiifhandg. for collection, is filed a3 a claim against his insolvent estate; and the* accompanying affidavit of the creditor states, INDEX. 767 EVIDENCE— continued. that the attorney failed, through ncgligeucc, to present and file the note as a claim against the insolvent estate of the deceased debt iy -proof of the attorney's admission that he had collected the money on ffhe note, and of his promise to pay it, is not competent evidence for th;> creditor. Stubbs v. Bccne's Adm'r '555 73. Same, in description of middle name, — A. misdescription of the initial let- ter of the defendant's middle name is, at most, an immaterial variance. Cleveland v. Pollard 481 74. Homicide ; variance in name of deceased. — Where the indictment alleged the name of the deceased to be Louis Boudet, or Boredet, while his real name was proved to be Louis Burdet, and to be sometimes pronounced a8 if sp' It. Bourcdet ; and the circuit court thereupon charged the jury, "that if Lis real i.ame was the samejn sound as if written Br.redet, or 60 nearly the same that the difference would be but slight, or scarcely perceptible, and he would have been readily known by his name being pronounced as if written Boudet or Boredet, then the vari- ance would not avoil the defendant," — held, that the ruling of the courc was substantially correct* — Aaron v. The State 12 75. Larceny; variance in name of owner of stolen goods.— Whero the indict- ment alleged the stoleu go»ds to be the property of Jut 't Antoine, while the proof showed that they belonged to a Frenchman, whose name was Juii Antoine in French, and wi>o was "generally called as if his name was spelled Jules Antoine,'-' — held, that there was no variance or misnomer.— Point v. Thts State 54 EXECUTION. • 1 . What propt rty is exempt from levy and sale. — If the defendant in execu- tion, being the head of a family, owns but one horse, and no mule or oxen, the horse is exempt from levy and sale under execution, (Code, § 2462,) although said de'endant aL:o owns slaves,— Cook v. Baine 37 1 2. Bight of defendant in execution to sell or exchange property exempt from levy and sate.— The act of February 14, 1854, (Session Acts 185;i-4, p, 242,) iing section 2464 of the Code, also repealed the prior act of Feb. 7, (t'h 69.) amendatory of said section ; and the repeal of these statutes removed all restrictions on the right cf the defendant in execution to sell or dispose of property exempt from levy aud sale 371 3. Jctwn by purchaser of exempt property, against officer making levy.— A. pur- chaser from the defendant in execution, of property exempt from levy and sale, ma/ maintain au action against the sheriff, for a subsequent lew and sale, without making the affidavit required by the .-tatute( Code, 106) from the defendant in execution 371 4. Sheriff's right to commissions for execution of process regular on its face, but issued on void judgment— k sheriff is not entitled, as against the de- fendant in ex cution, to retain bis commissions out of the proceeds of the sale of property under an execution regular on its face, but issued on a judgment which is void on account of the incompetency of the presiding judge; although the statute (Code, § 2284) protects him in the execution of such process.— Wilson v. Sawyer 55, i 768 INDEX. EXEOUTORSAND ADMINISTRATORS. 1. Validity of grant of administration. — The failure of an administrator to give boud, as required by the order appointing him, renders the grant of administration voidable only, and not absolutely void. — Ex parte Max- well • 306 2. Slime.— A grant of letters of administration in chief, when there has been in fact a previous administration, which had terminated by the death of the administrator, (these facts not appearing in the second grant,) is valid as a grant of administration de bonis non, and void only as to the excess of authority which it purports to confer.— Moselcy's Adm'r v. Ma tin 1?1 S. Same —A grant of letters of admini-tntion is not void, on account of the non-existence of assets in this State, if the intestate was an inhab- itant of the county at the time of his death, (Code, § 1667 ;) nor are letters of administration de- bonis non, gi anted by the probate court of the county in which the intestate had his domicile at the time of his death, void for want of iroadministered assets, (Code, § 1720,) although they might be irregular and revocable. — Watson v. Collins' Adm'r. . . . 515 ■1. Plea of nc unqim administrator. — In an action brought by an adminis- trator in his representative character, a plea, alleging facts which show that his letters of administration are void, for want of jurisdiction in the court by which they were issued, is a good plea in bar 515 5. IIoiv administrator may or must declare. — The words "administrator,'.' &c., following the plaintiff's name iu the margin of the complaint, are, of themselves, mere descriptio persona; but an averment in the com- plaint, that the money sued for will, when collected, be assets of the decedent's estate, is sufficient to show that the plaintiff sues in his rep- resentative character 515 6. Same. — The appellate court will take judicial "notice of the fact, that the word "oefcaV," following the plaintiff's name in the complaint, is an abbreviation for the word administrator. — Moseley's Adm'r v. Mastiu.. . 171 7. Revocation of letters of administration. — If letters of administration are granted by the probate court, withiu forty days after the death of the intestate is known, in contravention of the order of prefereuce pre- scribed by the statute, (Code, §§ 1668-69,) the largest creditor of the estate may proceed to obtain a revocation of such letters ; but, to enti- tle him to make an application for that purpose, he must show that he is the largest creditor of the estate ; and he can not complain, on error, of the refusal of his application, when the record does not show that he proved that fact. — Ward v. Cameron's Adm'r. 622 8. Burden of proof on question of ddigence or negligence by administrator. On final settlement of an administrator's accounts, it being shown that a decree was rendered by the probate court in his favor, ordering his predecessor in the administration to deliver up to him certain choses in action belonging to the estate, the onus is on him to prove due diligence in enforcing the delivery of such choses in action ;■ but, whether he negligently failed to procure the delivery, or failed to collect them af- ter obtaining the possession, the onus is on his successor to prove the amount which, by the use of proper diligence, he might have collected. Wilkinson v. Hunter 225 INDEX. 760 EXECUTORS AND ADMINISTRATORS— cortixueu. 9. Liability of administrator for negligence, and proof thereof. — An ad- ministrator is chargeable, on filial settlement of his accounts, not with the nominal amount of certain cboses in action belonging to the estate, whifth his predecessor in the administration was ordered to deliver up to him, but with the amount in money which, by the exercise of due dil ge ht have collected on them ; he can not be charged with the amount of an account on a third person, one of such chosce in ac- tion, mercy on proof of the solvency of the debtor; nor with the amount bate court in favor of his pre l< c againi e r.witboit proof of t^e solvency of.the defenda' t in sai 1 decre • or his sure ics ; nor with the amount of a judg- ment q favor of his predeces^ r, on proof that one of the de- t of land, the value of which is not shown, and that, tie other defendant r ite be- fore he became administnt -r, and afterwards returned ami sold a t act Of hind ?25 executor. — On final settlement of the ac- counts of an executor or administrator, he is not entitle ! to . counsel fci a paid by him on account of services rendered in conies proper charge against him. — Anderson's Executor v. Anderson's 11. A ■■'-. — An executor or adminis- trator can ;i"' complain, on error, of the allowance of compensation 10 the gua of the infant distributees, on final settlement of his accounts and vom her-, siece he is not thereby prejudiced 61 _' See, also, Limitations, Statute or. 1. FRAUD. 1. What constitutes, — In an action on a note given for the purchase-money of land, a special plea, averring the vendor's misrepresentations as to a material matter, and consequent injury to the purchaser, but contain- ing no averment tha*; such misrepresentation misled the purchaser, or constituted an inducement to the purchase, or was relied ou by him, fails to make out a case of fraud. — Kannady v. Lambert 814 FRAUDS, STATUTE OF I. Promise to answer for debt, Sfc, of another ; whether promise is original or 'literal. — (a determining whether a parol promis: to pay for goods delivered to a third person is within the statute of frauds or not, the decisive question is, to whom was the credit given : if the credit was given altogether to the defendant, his promise is direct and original, and not withiu the statute ; secus, if any credit at all was given to the person to whom the goods were delivered. — Boykin &. McR; ejv. Doht- onde & Co 50'J 3. Same, — It is the province of the jury, in such case, to determine to whom credit whs given ; and it is their duty, in deciding that question, to take into consideration the extent of the unler taking, the expressions used, the situation of the parties, and all the other circumstances of the case. The fact that the goods were charged, on the plaintiff's books, to the 52 770 INDEX . ___ FRAUDS, STATUTE OF— continued. person td whom tbey were delivered, if unexplained by other circum- stances, would, be very strong, if not conclusive evidence, that the defend- ant's promise was collateral ; and, on the other h^iid. the fact that the plaintiff and defendant have both acted as if the credit was given solely to the defendant, if unexplained by other evidence, would be a circum- stance strongly tending to show that his promise was direct and origi- nal ; yet neithe n of these facts, is conclusive, but they a-e susceptible Cf explanation, and their weight as evidence must depend upon the circumstances of the particular case 602 3. Sume. — A decree having been rendered against a sheriff and the sure- ties o:i his official hond, oa final settlement of his accounts as adminis- trator virtute officii, a verbal promise by the sureties, made to the plain- i D the decree, that they would pay an item cf costs which, by mis- take, had not been taxed, in consideration that he would allow a i C raie decree, which, as they contended, had been rendered for more than was justly due, — is an original undertaking, founded on a new consideration, and is not within the statute of frauds. — Ragland & How- ell v. Wynnes Adnrr 270 4. Fraudulei . — When an attorney's receipt for a nob his ctioa, U Bled as a claim against his insolvei failuj ify the amount of the note is no objection to the claim provided the amount be shewn by other proof.— Stubba v. ]!. *Adru'r 5y- Varia . — When an attorney 1 ! placed in his hands lor collection, is filed as a claim against his ineol- avlt of the credito tat • the al . .], through n gligeucc, to present and file I \ .'iit estate of til proof of [mission tl at he had collected the money o and ot his INTEREST. '. On y note. — Tim maker, and bolder of a promise may, ot, founded on suffieiei ra- tion, change the rate i f interest whicli it hears : yet the i.oi . the no;e i s If, recover on such modified c( Mint's eutor v. Hall JUDGMENTS AND DECREES. C ' as bar. — Where a promissory not'\ which had [ the tran-i bands of . ti,>ns to present it to the maker for payment, and, if the payment was refnsed, to put it in the hands of ai for collection by .suit; and, paymen' having been refused, the agent m attorney, who, not being informed pf the name of the real owner, brought suit on it in the name of the agent, and the action wa»Bace( asfuUy defended, on the plea of set-off against the payee, —held, that the ju lgmeot in that aotioa was not a bar to a subsequent action on tli' he owner, who whs not shown to have had notice of the pendenej *>;' that action. — Lawrence v. Ware 47 , -. Same. — The recovery of a judgment against a Bberiff.and his sureties, in au action on his official bond, by two joint owners of a chattel, for his wrongful acts in selling the entire interest in the chattel under execu- tion against one of the joint owners, and in making the 9j1c at a place \ not authorized by law, is a bar to a sul sequent action of troi him, by the joint owner who was not a party to the process, for file con- version arising from the wrongful sale of the entire interest ; and tbc 'i the bar is not affected by the fact, that only nominal ■damages were recovered in that action; nor by the further fad, that the action itself was not strictly maintainable. — Hopkinson v. Shelton, Sol", INDEX. 773 JUDGMENT AND DEGREES— coxtinced. 8. Same, as evidence. — On the execution of a writ o r inquiry, after judgment by default, in t'.espass for taking persona] property, the judgment by da- ' fault estops the defendant from showing, even in mitigation of damages, that the plaintiff had not such a tit e as would authorize a recover)' ; yet he may show, in mitigation, that the plaintiff was not the <■ property, as that fact is not necessarily inconsistent with th right to recover. — Ste r< tt's Executor v. Caster 4. i isof foittl decree, — A decree of the'probate court, which ) ports I i ed on final 8e( (lemi Dt vouchers of the administrator of an insolvent amount which had come to his bands, th bursements, and the balai ct Le t in his hands fi creditors; and by w! ich "it is ordered, adjudged, a tlie account, as stated by th ■ court, " led and 6ied as a final Bcttlerne i of sai elusive, until reversed by ti ribunal, and car; or annulled by the probate court at another term; — • u'r v. Ytati I, i; oi i' e probate court, w] a rendered on finalst ttlemeirtof the accounts and \ idministrator of an ineoiv i supposed errors and mistakes in a former settlement ing a larger balance iii the administrator's bands for distribution among the creditors, and declares th e forme at to be partial only; and by which '• it is considered and decreed," that tl the former settlement, which were tben declared entitled to a dividend :i:ty per cent., " be paid in full, and that whatever sums shall re- main, after the satisfaction of said allowed claim lly divided among the four minor heirs of " the decedent, — has not the requisites oi a iin.il decree, and will not support an execution or an appeal 467 0. / •-' in rendered on pleadings and proofs under a bill filed bj tl cured creditors, against the ition of the .--. i g that the complainants are entitled to relief, and ordering the nuutur to Stat count of the several debts due to the complainants respectively, and tl imountfl with which each trustee i de, and to rata dividend of each creditor; and .. ort,— though informal, are, whe« ther and in conncc ion with the bill and tl,- port, » . I«, 5vl 7. R Path of thf nomiirt in ■ judgm ran of his personal repi of the beneficial ; norai' ual pltriiitill".— Baker, Pry i 774 INDEX. JURISDICTION. See Constitutional Law, 3, 5, 6, 7. Criminal Law, 56, 57. Dowkr. ::. JlXTHf OF THE PeACK, 1. JURORS. 1. Competency ef juror. — The society of froe-maso- s being a purely charit- able corporation, a member of the society cannot be said to have the smallest pecuniary interest in the event of a suit to which the society is' a p-rty; consequently, he is a competent juror. — Burdiae v. Grand Lodge of Alabama , 2. Same, —A mere occupant and tenant, under a yearly letting, of a room used by him as a sleeping apartment, is not a. freeholder, within the meaning ot the statute (Code, § 8583) specifying the grounds of chal- leng ! to jurors in criminal cases. — Aaron v. The State 12 3. Challenge of furor. — In all trials for capital or penitentiary offenses, (Code, §3585.) the State rniy, at its election, challenge for cause a juror who has a fixed opinion against capital or penitentiary puuish- ments : yet tl e statute does net impose on the court the duty, ex mero mota, of setting aside a juror 'or this cause; nor can the prisoner com- plain if the State waives or forbears to exercise its right of cba'lenge. — Murphy v. The State 48 4. 0. iuror. — If the jury, in a criminal case, are sworn "well and truly to try the issue joined," tfcis is a substantial compliance with the requisition of the statute, (Coda, § 3478,) and is sufficient. — MoGuirc v. The State, JUSTICE OF THE PEACE. 1. Civil jurisdiction. —Where several promissory notes, each for a less sum than fifty dollars, are executed at one and the siime time, for a single debt amounting to the aggregate of their several sums, and are made payable on the same day, such notes are within the civil jurisdiction of a justice of the peace. — Herrin v. Buckelew 670 2. Authority of intendant of Camden as justice of the pecce. — The 4th section of the act "to incorporate the town of Camden in Wilcox county," (Session Ac's, 1841, p. 54,) taken in connection witli the aat ''to incorporate the town of Eutaw in Greene county," to which it refers, although it may not make the intendant of the town, ez officio, a justice of ihe peace, con- stitutes at least a valid foundation for a honn-fuk claim of office by him ; and if he proceeds to perforin the duties of & justice of the peace, or the faith of his election as intendant, he is at least a justice de facto. — Wil- liamson & Mc Arthur v. Woolf 296 Examination of parties as tsitnesses, in appeal case from justice's court. lu appeal cases from a justice's court, where the amount in controversy '•iceeds twenty dollars, the statute authorizing either party to be a wit- ness in his own behalf, (Code, § 2779,) has no application to suits by or against corporations aggregate. — Ala*. & Tenn. Rivers Railroad Co. v. Oaks & Mills «25 INDEX. 775- LEGACY AND DEVISE. "keirs of the ?;.xfy" construed to vest in children as purchasers. — Where the testator devised and bequeathed hie entire estate, l>oth real and personal, to his wife during life or widowhood, aud directed tbat, on her death or marriage, his red estate should be sold, aud all his prop- erty be divided into seven equal parts, '*and then disposed of as /< '' the body of Sarah Ji. Ihis daughter | one , said .use and ben during her 1*/$ but r dis- pose tl , and it appeared that Sarah B. was married, and had children living at the time the will was made, and that the testator, in another clause of his will, bequeathed a specific earn in i her directly, in the event, that he did not make an advanc rju&l amount to her during his life, — held, thai the children • , who living at the death of the testator's widow, t. rs un- •dvrs the bequ rat, and that the rule in Shelley's case did not apply. — (Sto i ) — Roberta and Wife v. Ogbourne 122 !<■!/• heirs a/ i v be- quest, of slaves and land to the testator's daughter, "to be her right and property during her life-time, and her heirs' aftei with i Be; hut, should the diewithput an heir, then the prop- ")iig the rest of my [his] heirs"; followed by a general residuary bequest to her, i f all the rest of his b real and personal, "to be disposed of ks fit among my [hie] law- ful heirs at my [his] death," — un ration of the rule in Shel- ntlie daughter ai I estate in the s!av a -Par- ish v. Parish 51 for life, with remainder over; uncertainty; r< "[ will and bequeath to my beloved wife Elizabeth one negro woman. I Jane, to her her life-time ; then sh<\ :ind all her increase from te '97, to be equally divided among the five children, if living at if not, to thai" heirs lawfully begotten ofthi ' none such heirs, to be equa'Iy divided amoi g themselves when I child conies of age ; and after my wife's life-time, the wench to lie hired her cl.il Ircu ; if her labor will not support her children, t.'iey must all help her, as they .ire to reap the property ; and my de- ■eo should he kept, together, and schooled upon the hire of the ti il they come ( ,i age t" demand them— the ra of age; and till then, ihe ■•'all the children, both black and wbito | I the children sir uld die .before it nally divided among them ; and if any all Bhall make him < qual with tbemsi Ives." ii uncertainty, bu i lifc- V five cliildi and the 1 ror of n v. Smii 140 : *!1 h : - teal and person il, nqu 11 v di rTG INDEX. CY AND DEVISE— continued. among his wife and three children, share and share alike; and tfai entire estate should be kept together and managed by his executors, (who were also appointed guardians of his children.) until his , : chil |, lid attain his majority, when h's share w;i- ;spart to him ; the share of each daughter to be allotted to her when ttaioed the age of tweuty-o \r married before that time, with the consent of her guardians. The s eond clause was in these werds : " I t i- my will a ad desire tba t. Trer all my just debts and lia- bilities shall have been paid, the sraid executors and guardians of my er to my said wife, from time to time, as she may call for the same, such portion or part of theanoual increase or profits of all my said pri ire ; the remainder to be by them ted for the benefit of my id children"." Thefou in town lot, to pure 1 • r suitable lot in the same vil'age, ected thereon a dwelling 1 * ■, "for the residence and 1: in St of my [hisj said wife, after such d direct."' The third clause directed the sale of the plantation on which he r^ded, and the li'th and s ; tie of certain personal property ; while the seventh , that if the widow or any ^ne of the children should fore the allotment to the latter of their respective shares, the Biirvh I of the deceased; and that if all the children should die before their respective shares had been allotted to them, then the widow should "have the proceeds and profits of all the property during her life.'' Held, that while the widow was entitled, under the secoud clause, to demand and receive from the cxeculors the entire annual profits of the property after the payment of the testator's debts, .-he had no light to use them for the purpose of investment, or for her own exclusive benefit in any other manner: that the children took an equal interest with her in such profits, and were entitled to be maintained and educated by her out of such profits ; and that, while she had a right to use and enjoy, in common with the children, the house and lot purchased by the executors under the fourth clause, the house and lot were the property of the estate, and subject to distribu- tion under the first clause. — Wynne and Wife v. Walthall 27- 5. Lapsed legacies ; statutory provisions^ — Under section 1005 of the Code, a legacy or devise to a child or other descendant of the- testator, who dies before the testator, leaving children or other descendants who sur- vive the testator, does not lapse, and does not vest in the administrator of the deceased legatee or devisee, but passes directly to his children or other descendants, in the same p oport : ons as if they took as his heirs-at law or distributees; and his widow takes no interest in it. — "Jones v. Jones' Executor 574 0. Validity of bequest of freedom to dace. — In this State, a direct bequest of freedom tut for his com: I pport,-' it may :ted by ^qu I (Code, § 2966) to the pay-' — Smi h v. Moore 312 .,-. after mab [uests that ! vided into three equal parts, bequeathed one of these parts to 1.1; drcn of a debased brother, and added to the bequest these w.or Che amount I now am indebted to them is deducted," — held, thai ■ pose upon the children an abandonment of their dt'Ms -t the estate, as a condition upon which they should take th< ae\, but ouly required a deduction of the debts from the legacy in making this deduction, the aggregate amount of the debts mui subtracted from the entire legacy to the children collectively ; and that the :. mount to which the children were entitled under the bequest must be ascertained as in cases where property is brought into ho'ch- iay, after-deducting the specific bequest t!i e am >: mt of the debts doe to the children must be first added to the ral resi luuno of the estate, and then deducted from one-third of that amount. — Hush and Wife v. Cunningham's Executors 327 10. Proceeding for recovery of legacy; election. — Where a residuary legacy contains a clause directing a debt due from the testator to the legate**, 5 from the fact that he had made an unauthorized sale of their a tract of land, to be deducted from the amount of tin cy ; and some of the legatees arc infants, and, consequently, incapable of electing to ratify tli<- sale,— the chancery court alone can make an election for them, and la, therefore, the appropriate forum for I thment of th»» •••jfate and the ascertainment of the legacies \1. Same; burden of proof. — la a proceeding h'fore the prolate court, after the expiration of eighteen months from the grant of lett» testamentary, for the recovery of a residuary legacy, from which is to he deducted, by the t^rmr; of the bequest, a debt due from the tes- tator to the legatee, it is incumbent on the legatee, and not the executor, 53 DEVISE— CDNTISCED. toprr • nint of the indebtedness to\im ; and unless be hi I0W6 that chore will be 8 - to pay al u.nd prior legacies, he is not en; *■ • UTK OF. ' up- I mnftl, the act of 1821 Adm'r v. Tu nipeeed and Wife o I , »■ '•' ( ' '' breach of a contract, is nol fone year, (Code, §2481.)-' ''■ Same, to collector. — The State not being expressly inch Digest,' :;29. > 90 ) wh <■ . pre*' :•* sis the limitatioi. of actio:'!- tiesofpub- . b'c ol^ statute doe-' not apply to a summary proceeding again -t ' t ix-coll i sureties, instituted in the name of the comptroller of pi ita, for the use of the Stale — Ware v. Greene 388 S - . libs of the wife as a fe ne sole, to recover her interest in slaves which accrued to her before hot marriage, and which vested in the husband by virtue of his marital tights ; and an amended bill is afterwards Bled, in the name of the husband and wife, after the statute of limitations has md's right of action, — the statute is a bar to the ivlief h night, although the statutory liar was not complete when the original bill of the wife was filed.-— King and Wife v. Avery 124 1 Subsequent promise or ach ; — To revive a debt barred by the Statute of 1 mitationa, the subsequent promise, or acknowledgment, must be clear and explicit ; but it is no; uecebsary that the t that promise or acknowledgment is established, should be clear and ex* plioit. — Strickland's Adra'r v. Walker SeO, also. A.DVSRSX Posshssioh. LUNATICS. ). Liability for , — Ai: adult person, wl • ''*> _________ INDEX. 779 LUNATICS— costixvkd. is liable on an implied contract for i I liini, gait- able to h ;,1 con lition in life ; ami when.' no guardian has been appointed for him, an action for tbe valao of Buch necess »riea must : him personally. — Ex parte Nortbing- ton 400 2. L i an action is I ej to be uppomted by the court, if necessary; an^ the pla stiff pr ceed with bis action, ''unless he first I ;rdian appointed l>y the probate court, and notify t ''ney >i bo awarded by th supreme court, al f the i at ot an attorney for Uk . ies.<— In ao . - tos is, if tne court refuses to let tbe pi im i bis action, court, and y the^guard icy of the suit," a m ivill be f tbe' supreme court, ut the instance of l pel the appointment of ma forth- >n . • A notice, an u:i- recoi q sale -t the inoir j t:i • plain a mortgage, and the defendant end-.'r a purcba - tule . ge to the jury, in favor of the pl.ti ' !eover, is erroneous, unlea i fc tbe moit. ily recorded, or that the dol'en -a:; - . . iceof Barker v. Bell ST.) Hon a' lav - te, a sale of mortgaged lauds, under execution at bw, . Mart ot" tbe mortgage I s no title qi i I I • (ho p.r- i been a previous Burn il title by such surrender cannot be i.i a court of law, f , objection •' the Mile ; urged, nor is tin * purchaser at the « • with :n aa , u at taw tion of a ui the mort- gagee ftgtiust lia v IHty as his surety on a note d\:o to >- ll •" of the note, au'l the eul » 780 INDEX. MO BTG A G ES— costikc ed. • ontsurty; and tbc :nortgage being thereby extinguished*, it. cannot then be aligned to the surety on the new uote. for his indemnification, i though the assignment be made with the a^ent of the mortgagor, for valuable consideration, and contemporaneous with the cance'.la- lion and substitution of the notes. — Brooks v. Ruff Ho ■<. Parol mortgage. — A mortgage of personal property, given to indemnify the mortgagee against liability on a note as surety for the mortgagor, being afterwards extinguished by the cancellation of the note, and the tuti mi of a Dew note in its stead, with a different surety : a verbal agreement between the mortgagor, the mortgagee, and the surety on the new hot*, made coufcemporaneou-ly with the cancellation and sab- tution of the notes, to th effect that 1 lie mor';-. Biirety, constitutes a valid mortgage as between the parties n)'> i mortgage wife's separate estate. — Under the Code. nd has no right or power to mortgage, for his own • lu;vl debt, i slave belonging to the wile's statutory separate os- d v. Flanagan ii~, NON-CLAIM. Estates or Deix-dent?, 1. KIT. J. When nonsuit, with bill of . taken. — A nonsuit maybe taken, with a bill of exceptions, (Code, § 2357,) in consequence of the 5 oppression of the plaintiff's deposition, on motion, before the trial is utefed upon.— Douglass v. M. & W. P. Railroad Co 566 2. Nbntyit on verdid/ai" leas than $50. — In an ac ion on a note giv«n for the purchase-money of a slave, damages for a misrepresentation or breach of warranty of soundness constitute a good set-off, (Code, S '2240 ;) and if th? amount of the plaintiff's recovery is thereby reduced to le^a than fifty dollars, he cannot be nonsuited under section 2265. — Wood & Kim- brough v. Fowl .r 2P6 OVERRULED CASKS. :. Oayle v. Hudson, 10 Ala. 116, overruled by Taylor v. Strickland 571 2. Sheppard v. Shelton, 84 Ala. C52, overruled, ,es to first head-note, by Williams v. Ivey 220 3. Stalling* v. Neuman, 2(5 Ala. 3<)0, lira ted, as to first head-note, to cases commenced before the Code, by Williams v. Ivey 220 4. Wallit v. Long, 16 Ala. 738, explained and limited, as to second head- note, by Miller v. Hampton 357 PARTITION". 1. When sale for partition may be decreed. — Under the act of February 5, 1856, (Session Acts 1855-5G, p. 20,) an order for the sale of slaves, for jtartition amoti^ the several joint owners or tenants in common, should not be granted by the probate court, on the application of the guardian INDEX. 781 PARTITION— continued. of infante, without proof thai the sale would bo to the interest of (be infanta; but, when the application is (bade by adult p ', Bach proof is not necessary, although some of the parties interested are in- fants.— Coker v. Pitts «'-' > See, also, Chancer v. 9. 31. % . PARTNERSHIP. l. What constitutes partnen . en two Btearnboat com] eogaged in carrj i and freight between M Mobile and New Orleans, by which it was 31 i • company should furnish a specified r.umber ol' boat?, of which the ould rota n the property and-assume the risk ; that all i sses, inju- ries, and damages, caused to third persona or their propel •_ by accidi nt, negligenc , want of bkiil, or o' >hoi:hl be borne solely by the owners of the boat causing or austa ning such loss or dam- age ; that the compensation of agents, ut sp to attend t<> the joint business, and all I I for injuries and damages on cot- ton shipped from ho river above through to New (Jrl< t be a charge again t the joLt fund, and be borne .by th .ordmg to- their respective interests; that the proceeds and earnings of each I.. .at. deducting therefrom the ru aaes, should bt ascertained monthly, and be div.ded between the parties in proportion to the num- bered boats furnished by them respectively ; that uniform pi ices should be established, and through tickets be good on all the boats; and that neither party should be l. in any Other boal running on the same route, or make any private contract for his own advantage, which might be injurious to the others, — constitutes the par,ti B inter —Mealier v. Cox, Brainard & Co : 1. Admission of new partners. — New members cannot be introduced into an ug rartnership, even by a majority of the partners, without the ut of the others; yet, if the Otbert recognize and treat t e new iers tvs partners, aud coniuue the business with them \iud< r is suflicient to make them partners, and to render the oiiginal articles operative us between them 156 3. )> uisolulion. — Although the defendants may not committed such acts of misconduct, or been guilty of such willfjl v.olatkn of the terms of the contract, as would authorize a court of y to decree a dissolution of the partnership for that cause; yet a ittion will be decreed, where it appears tint they refuse to Carry out one of the terms of the articles of partnership, and insist that, in oiler to conduct the partnership business successfully, that stipulation be either changed or disregarded; that they Ii iv< • • ed to DOr- re.'pjnd with the complainants, on matters connect* d with the I artnor- • of fading between the partiec •tension, that the joii an be no longer prosecuted to the mutual advantage of all thp partners ; that thee is no partnership rty which might be sacrificed by a tale, and that a dissolution would not probably inffct any material injury 01 • y 156 t. Same ; jurisdiction not affected ly stipulation providing. : I NDEX. ;T.\EKSH1P— continued. tration. — A stipulation in articles of partnership, providing for p. ion to arbitration of all mattecs of controversy which may arise among the partners, does nut take away the jurisdiction of equity to decree a dissolution l :• ■ PLEADING AND PRACTICE. I. Parties. proper parh -The oblige; is the proper party to sue for the breach of a v nda 29,) al hou a part of i.he land for the u se ol a third person, and has sold the resid Bedell's Adm'r v. Smith ' ~. When I ■. — A bailee for reward, having de- livered the goods on board his • \ steamboat, their o, may m intain an action in his own cam- against the owner eamboat, for the negligence and card . its in the transportation of pl&i tiff 'ost his reward*, and was compelled to pay damages to the <:. McGill.w Monette .';. I'.., tn may sue — Under the provisions of the Code. (■£§ 2036, 2132) a guardian may sue in, his own name, for the use of Lis ward; to recover damtges for the c inversion oft ,e wa d's property. — Longmirc v. Pilkington 4. H —When au action is brought against an adult person who i~ non eov^ be must beflefended by an attorney, to •pointed by fcfte c urt, if necessary ; and if the court refuses to let the plaintiff proceed with his action, " unless he first have appointed by the prolate court, and notify the guardian of the pei. of the suit," a mandamus will be awarded by the sup'eine court, at ihe instance of the plaintiff, to compel the appointment of an attorney for the delendant. —Ex parte Northiug ton -fi. i — Iu a summary proceeding collector and his sureties, (Code, g§ 2596-97, 2628,2632,) for his !': to pay into the State treasury the taxes collected by him, the unex- plained om'ssion of one of the sureties from the notice is fatal to the proceeding. — Ware v. Greene 38f. i>. Parties to set. fa. — On the death of the nominal plaiutift" in a judg- ment, a scire facias to revive it must be prosecuted in the name of his peisonal representative, and cannot properly be issued. in the name of the beneficial plaintiff alone, nor in the name of the deceased nomi- nal plaintiff. — Baker, Fry & Co. v. Ingersoll 416 II. DECLAMATION, OR COMPLAINT. 7. Afi'jnmcnt of general and special breaches. — In an action by the purchaser, against the vendor of several slaves, a count oh a subsequent contract, — by which it was agreed, on account of the unsoundness of one of the slaves, who was warranted sound, that the vendor should lake buck said slave, and should pay the purchaser a specified sum of ni which sum the count seeks to recover, — does not require the assignment of a special breach, (Code, § 2235 ;) nor is a special breach required in INDEX; ' . 783 PLEADING AND PRACTICE-. a count on an alleged rescission of the original contract, by subsequent ment, oh account of the unsoundness of on. 5 of the slaves. — Stone & Best v. Watson 236 ment that a slavi ie unsound, is th ' , aad not of a conclusion from facts 236 " administr ifce., following (he plaintiff 'fl name in the margin of the complaint, are, of thi but an averment in . ' loi v.H, v. <1 . r.— Watson 515 the '■'." following the plain v reviation for the ys Adm'i .. 17! •'. — The fo l.iint precrib d I , (p. 554,) "fbi '• td battery," :'/ fraud. — In an aetion on a note given for the purchase-money of land, a special plea, averring the vendors misrepresentations as to a ma'erial matter, and consequent injury to the purchaser, but contain- ing no averment tha f . such misrepresentation misled the purchaser, or constituted an inducement to the purchase, or wa9 relied on by him, tails to make out n case of fraud. — Kannady v. Lambert . . . . 814 2 4. What is available under general issue.— In an action on a note given for the purchase-money of land, a promise by the vendor to cancel and de- stroy the note, in consideration of the fact that the land was subject to overflow, when he had represented that it was not, is available as a de- fense under the pica of the general issue ; but the vendor's misrepre- INPES .__ _•__ PLEADING AND PRACTICE— coxtO icntatior.s as to any material matter, which constituted an induce* to the purchase, and on which the purchaser relied, is only available under a special by virtue of section ?J40 of the Code. . . 3H 25. Error inff demurt .lin- ing of a demurrer to a Bpe sial pica, if err. neous, is notavailab] ■ to ti e defendant) -when tbo record shows that he had the full benefit of the. earue defense under the genorul issue '14 ■ tmption as to pleading. — When no pleas appear in the record, I appellate court will presume that proper pleas were filed tu let in the evidence which the primary court admitted.— Wynne v. Whiaenaot PRESCRIPTION. See AnrrKss Possession. 2, 4, 6. ONS. 1. Presumed c.zi-. -.— In tVe absence of evi- doai be courts of this State will presume that the common law prevails in other States,— Connor v. Tra wick's Adm'r. ... Also, Boruoi v. King's Adm'r 2. Presumption of i me. — Au th or i ties cited on the, qucs- . tion. whether the probate of a will, nearly sixty roars old, would be. presumed from la] ..•.•under the oircums'arces of thN case* — Jemisoo r. Smith 140 HIBITION. 1, WhtniLlies. — Where a pwbate as granted the wiitof Kabeat corpus to an enrolled conscript, whose petition for the writ shows on its face that said judge ha'= no jurisdiction to inquire into the validity of his enrollment, a prshih'tion will be awarded by the supreme court, without a previous application to the circuit court, enjoining further n'fcbafe judge ; and the application for the WTit nuy . id. 1 by th.- enrolling officer who b is the custody of the cdnscrlp . Willie Cli", RIHEARING AT Li I '1 tOT of the Code, au- thorizi iring after final judgment at law, on account of u lost I on, which has place been fo dor s not apply to a c; :l>e action is founded on a pronii- m>te, and it of the original cons'dera- tioM of :. ais v. McCaropbell r fraud. — Where the de- . died by the ourt, as the condition of a conUnoaoee, I .^rncnt for a pari of the pi dntifF.s demand, and confesses ju he cannot afterwards ohtiin a • jig a? to tl d judgment 2K»8,) on the ground -urprisc, accident, Bwtake or fraud 533 786 INDEX. ] J i the death of tl I plaintiff in a judg- , ive it mas! Cuted in the name of and en: not propt-rly be issued in the name '.cial plu'ntiir alone, nor in the name of the deceased norai- (i r plaintiff. — Baker, Fry & Co. v. Li. SBT-OPF. I. tyfiat. is available. — : be purchase-money ■ oi a shwe, damages for a mier i ; or breach of warranty cf soundness c i good set 08', under section 2240 of the Code. — i & K mbrough v. Fowler 292 vted'.-in an action on a note given for the purch:.se-money of land, the "vendor's mi repi tali on as to any material natter, which < tuted an inducement to the purchase, and on which the purchaser re- tted, is available under a special pl->a of set-off, by virtue of ?< of the Code, but is not: available under the -ne. — Kan- rl 314 1FI<\ I. (' ■ iff convicts to penitentiary. — In conveying a con- vie', to' the penitentiary, it is the duty of 'the sheriff to travel ''the land 1 •)'..• 1 sually travelei" within this State, (Code, § 3031 ;) and he has tiority to carry him through other States, although "the land route usually traveled," between the court-house of the county and tljc penitentiary, may be through those States. — Greene v McGehee II i *. Commissions for execution of ■ • ■- on Us face, but issued on e y&Agment. — A sheriff is not entitled, as against the defendant in execu- tion, to r< tain his 1 out of the proceeds of the sale of prop-, city under an execution reguhr on its face, but issued en a judgment which is void on account ol the incompetency of the presiding ji although the .sta'.mc- (Code, ■§ 2284) protects him in the execution of such p! .""'S3. — Wilson y. Sawyer 559 1 . What •■> ••■■■ arc actionable. — Words spoken of another, imputing to him tiio statutory offcuse of trading with slaves, (Code, § S2S5,) are not ac- tiona'ile, since tbe offense does rot involve moral turpitude, and the pfinlsthment affixed to it is not infamou?. — Heath v. Devaugbn. 60(J SLAVES. I. Validity of contract made with slave.- — \ ry note, given to a dare, for money borrowed from him by a white man, is void, and will aot BUpport an action. — Martin v. Reed 1C -1 *.. itdJfM.— Although the sale of any article to a slave, without the con. of the master, specifying the article, is a penal offense under the lawn of this State ; yet, if the contract has been fully executed, and (lie property delivered to the slave, it docs not lie tn the mouth of a third person, when sued by the ma's ter for a trespass to the property, to al- lege the illegality of the contract.— Sterrett'e Executor v. Raster 404 INDEX. 787 SLAVES— CONTI?wKD. S. Validity of contract for ;■< >r knowingly permits his slave to acquire money, and to pay it out to a third person, in a fair busine* transaction, he cannot afterwards reclaim it; but, il third person rec< ivea and holds the money for thebenefit ol and as his bailee, and it is afterwards used, v. ithout the fa r, in purchasing the. slave for himself fro i the n aster, th< tract is void, and do ■■■ the master's title. — Webb v. Kelly » 4. Gift to slave. — There is no statute or rule of law in this Sti liibita a gift of old clothes, or other art i e, to a slave, without the kuo ■ ■nseut of h itle and possession, ou the de'ivery of the /'erred to the master. — Devaugan v. Heath » . 593 b. Validity q freedom to slaves is void, unless their emancipation i d by som» special legislative provision : and wl is author- ized, by a special statute, to emanoip'. ' I is required, as a condition precedent, previously to convey a cert quantity of land to the judge of the county court, i:i trust for their as a security that they shall not become a public charge; a devise of the land to the slaves themselves, in a will which is a< itly at- tested to pass real estate, is not a substantial compliince with the sta ate, and the bequest and devise are both void.— J«ick v. Doran's Ey- ecutors 222 ntary trust f\ w. — A testamentary trust tor the emancipation of slaves-, the .execution ei which is made to depend on the election of freedom by the si i, is void, because they have not the 1< :y to make the election ; and the same principle applies, where theciccutor is dir to carry the -laves, for the purpose of emancipat ng them, "to 6ome bod slavehokHog State, or to the republic of Lib' may prefer." — Cresswell's Executor v. Walker i84 1. Etna 1800 not retroactive.— Thee lary 25, 1860, "to amend thclaw in relation to the emancipation of slaves,"' (Session Acts 1859-60, p. 28,) does not affect wills which probate before its passage. — Jones v. Job - Rfa LMARY PROCEEDINGS. 1. Parties to . collector ci , | 96-97, 2628,2632,) fo to pay in*. >. - nry the tax y him, the of one of the sureties from* the notice \b proccedirg. — V> ! in the act of 18.32, (Clay's D • . -irsa* the limitation il aet'o I ' cm not ftp] ;| - rendition of judgment at the return term of any "su ; t, writ, summon^, complaint or bill," applies to a summary pro- and motion, on the part cf an Incorporated raili. company a . the charter of the a aj.in .- aU'bortZfi ' . rot at the I has been Se ■• 1 twenty days previous thereto. SURETIES -. h A new contract between the creditor and the principal debtor, made withoct th ■ consent of tbe surety, and founded upon valuable consid- eration, by which tbe tkne of payment iseztended, discbarges the surety, igh DO other day of payment is fixed.— Cox v. Mobile &.Obio I road Co 2. Saint; U3vry. — in agreement by the principal debtor to pay usuri' inter, at in future, in consideration of the creditor's promise t:> extend the day of payment, beim: void, does not discharge the surety ; wheth- er the actual payment of usurious interest, by the principal would dis- . ge the surety, quaere? 885 . A ■ Wk -. ureties -•;< official '>onJ.— One of the sureties on a sheriff? official hon 1 cannot maintain an action at law on th* bond, against the other sureties, for their principal's default.— Mitchell v. Tur- ner 588 TAX 1. Tux on a&ction'talci. — The tax imposed b y law on the gross amount of auction suits, (Code, § 301, tiibd. 17,) in to be assessed against and ' paid by tbe auctioneer, and not by the owner of the property sold. — The State v. Lee k Norton 102 TAX-COLLECTORS See Si'MMwtv Proceedings, 1, 3. TRESPASS. !. Actim ',jeorporation.— An action of trespass, for fsl#c impris- onment, lies against a corporation. — Osvslpy v. M. & W. P. Railroad Company 481 Whit coniHM ■>/. — Where a botMfl is erecttd partly on the hud* of th,!iea- ite of a » ' • . . . . 140 relation! < | aod 1 c the latter, ; t | r |] I ;•■>':■■ I " (!> , ! ... 674 I VIBE. I < I ' ■ r u»f, n I plaintiff—] I _ I I by the ad; on: latin* C'l'. y the com - not, . : ctent as a witn aistrator, in tai ght b; 0. l ' ivil < OSes," • apply to a witness who i- fined in jail undi r aju oee ; but, if the pro; uceofthe wiUic.-s can he pro >a ought to • Kelly 84t ■ on b detlnqe bond may be relea.-ed, and examined witness for his piin'cipal, on the execution by (he latter of a new bond good and suflk-i' i , but it is not permissible to en irety's name from the ootid, agaiust the obji ction of the oblige . titute the: -urety in his stead ' •''. to prove cotU '.■ -In an action again t a railroad company common carrier, to recover damages tor the loss of ; shag* the plaintiff may prove the contents and value of his trunk by hi* own oath. — Dou glai - v. M. & W. P. Railroad Co 68C 9. Examina \rtits as witnesses, in • ''s eour'.. In appf;il cases from a justice'* court, where the amount in controversy exceeds twenty titute authorizing either party to he a wit- i.i his own behalf, (Code, £ 2779,) has no application to suits by or 't oorporatio is aggregate. — Ala. £- Tean. Rivers Railroad Co. v. t-ll s