Volume 26 — Alabama Reports

<p>From the City Court of Mobile, on points reserved as novel and difficult. Hon. Ales. McKinstry, presiding.</p> <p>The indictment in this case, which was found at the October term, 1854, of the City Court, charges, “ that John Case feloniously took and carried away from a store-house” certain enumerated articles, whose value is specified, and which are alleged to be the “personal property of WilliamS. Crockett.” Having been found guilty by the verdict of the jury, the defendant moved to set aside the verdict, and also in arrest of judgment, on the ground that the jury had failed to assess the value of each article separately, but had assessed their aggregate value at $18. This motion the court refused, but reserved the question presented as novel and difficult under the Code, and certified it to the Supreme Court for decision.</p> <p>The bill of exceptions also discloses the following facts:</p> <p>“ The State introduced one Crockett as a witness, who testified, that, seeing an advertisement in the newspapers by the prisoner offering to sell out his store, he called upon him about the last of June or first of July, 1854, to make inquiry respecting it; that he had never seen the prisoner before to know him ; that he called again on the prisoner on the third of July, when the prisoner agreed to take, and Crockett to give, $800 for the goods in the store, in a lump as they were— $400 cash, and the balance to be secured by two notes, of $200 each, with security, payable the first of November and the first of September ensuing; that the parties then immediately proceeded to take an inventory of the goods, in order that Crockett might learn the selling prices ; that this labor was concluded on the morning of the 4th of July, when Crockett paid, and Case accepted, the $400 in cash; that while the negotiations for the purchase of the goods were pending, on the morning of the third of July, before closing the bargain, the prisoner, at the request of Crockett, sent for the owner of the house in which the goods were, viz., Mrs. Julia Soto, from whom Case had rented it, in order that Crockett might rent the said house, which consisted, besides the room devoted to the store, of apartments above, used as a dwelling-house and then occupied by the prisoner’s family, — it being the understanding of the parties, that the prisoner’s family were to move out, and Crockett’s to move in ; that Mrs. Soto did not come, but her son came, and, in the presence of the prisoner, consented that Case might rent the house, and Case then hired the house to Crockett for the balance of the year, the rent to commence from the first of July, 1854 ; that Crockett has ever since, pursuant to said contract, paid the rent to Mrs. Soto ; that after the $400 in cash were paid, as above stated, Crockett remained about one hour in the store by himself, officiating behind the counter and supplying goods to customers ; that the prisoner then came in, and asked Crockett to go down town with him, to have a bill of sale drawn, and the notes executed, to which Crockett agreed; that Crockett proposed to shut up the store during his ab-senee, when tbe prisoner suggested, for Crockett’s benefit, that Ms (tbe prisoner’s) wife bad better tend the store for that interval, lest customers might be diverted from the store by seeing it closed; to which proposal Crockett assented, and proceeded down town with the prisoner; that the parties were absent on their errand until late in the afternoon, without effecting their purpose, owing to the prisoner’s not succeeding in getting such a bill of sale drafted as he would express himself satisfied with, when finally Crockett returned to the store alone, and remained there some time, and sold some goods to customers ; that Crockett then, being about to go home, said something to the prisoner about shutting up the store, when he again suggested that it would be better for him (Crockett) to leave him (prisoner) in charge during the evening to keep it open, so that the store .might not lose custom ; that Crockett assented, and went home, and on the next morning early (the fifth of July) he came to the store, and was admitted by the prisoner, who unlocked the door from the inside ; that the key had never been delivered to him by the prisoner ; that when he came in, he saw that some goods which were there the day previous were missing, but he said nothing about it at that time ; that about 9 o’clock the prisoner requested him again to go down town again to execute the notes, saying that he wanted the matter closed, but Crockett refused to go until some of his family, who were to move into the dwelling part of the house that day, came; that the prisoner expressed himself urgently to Crockett, when the latter offered to pay the cash then rather than go out, and finally they went down town together, to the store of Chamberlain, whom Crockett had proposed as his endorser ; that Chamberlain declined to endorse the notes, but stated to the prisoner, that he was acquainted with Crockett, and that the notes should be paid ; that the prisoner expressed himself satisfied with this, and executed a bill of sale of the goods, which was left with Chamberlain and executed in the absence of Crockett, who went back to the store where the goods were immediately after executing his notes, and before the bill of sale was executed by the prisoner.</p> <p>“ Chamberlain stated, on his examination, that he was under the impression that the understanding of the parties was, that the notes, with security, should be given before the bill of sale was executed, but he could not say what was the understanding of the parties in regard to the possession of the goods in the meantime. Crockett testified, that he considered his possession complete from the time he paid the §400 ; that the prisoner never came about the store after the fifth of July but busied himself, as he had been previously, in removing, to make room for Crockett’s family, some of his furniture from the larger room of the dwelling part of the house, to a smaller room, which it had been agreed the prisoner should retain to put his furniture in until he had a chance to carry it away ; that the prisoner’s family left the house on the. 6th or 7th; that up to the 5th of J uly, the keys of the house and the house continued as usual in the possession of the prisoner.</p> <p>“ There was other evidence. On this evidence, the pris-soner’s counsel requested the court to charge the jury, that although they may believe that the contract was complete on the 4th of July, and the title to the goods vested in the prosecutor, and the defendant stole the goods ; yet, if they believe that the control of the house and store was left with the prisoner until the 5th of J uly, then, in the interim between the 4th and 5th, if the defendant took the goods from the store-house, of which he liad the key, possession, and control, then he is not guilty of stealing from a store-house, within the meaning of section 3170 of thé Code. This charge the court refused, and charged the jury, among other matters, that if they believed from the evidence that the defendant was guilty of the larceny of the goods, as charged in the indictment, they must ascertain whether they were taken from a store-house or not — if not taken from a storehouse, the offence could not be more than a simple larceny ; but if they found that the house was a store-house, they must then ascertain whether the larceny was committed before or after the store-house was delivered to Crockett by Case — if they found that the larceny was committed before the hiring and delivery of the store-house to Crockett, the defendant would be guilty of simple larceny only; if, however, they found that the larceny was committed after the store-house had been rented and delivered to Crockett, then the defendant would be guilty of the statutory offence of larceny from a store-house»</p> <p>“ The presiding judge, being of opinion that the questions arising on the refusal to charge as requested and the charges given are novel and difficult, and should be reserved for the opinion of the Supreme Court, has directed the execution of the sentence to be delayed until the 10th day of March, A. D. 1855, and, at the request of the prisoner, here refers the questions therein for the consideration of said Supreme Court.”</p> <p>The refusal to set aside the verdict and arrest the judgment, the charge given, and the refusal to charge as requested, are now assigned for error.</p> <p>[Mr. Dargan argued orally at the bar the point presented by the motion to set aside the verdict because the jury had assessed the aggregate value of the stolen articles, but he submitted no brief of his argument-on that point. He also submitted a written argument, in which he made the following points. — Rep.] '</p> <p>Under the Code, it is made the duty of this court, to examine all the errors in the record, even though they are not specially assigned; and the motion in arrest of judgment tests the sufficiency of the indictment. Is it not defective, in that it does not allege who was the owner of the house from which the goods were stolen? , Such is certainly the law in England. — Barb. Crim. Law, 187 ; 3 Chitty’s Crim. Law, 949. The Code does not in language require that the owner of the goods should be alleged, yet it is necessary that their ownership should be averred ; so, also, it does not in words require an allegation of the ownership of the house, yet it is necessary.</p> <p>Section 3143 of the Code punishes all clerks and agents who fraudulently convert to their own use the goods of their masters which have come to their possession in consequence of their employment. It is the employment, and not the compensation, that determines the question of the relation existing between the clerk, or agent, and the owner of the goods. That the want of compensation for the agency does not affect the relation, is fully established by the following cases : Rex v. Smith, 1 English Crown Cases, p. 516 ; Barker’s case, Dow. & Ry. 19, referred to fully by Mr. Roscoe in the last edition of Ms work on Criminal Evidence, (top) pp. 440, 441 ; 6 Car. & P. 626. Neither can the length of time the relation has existed vary the case. The sole question is, Did the relation exist at the time of the conversion ? If it did, the party must be liable. The true distinction between an agency and a bare charge is this : one has powers, the other not; and these powers cannot be made to depend upon the compensation the agent is to receive for executing them, nor to the length of time such powers have existed. Is there any evidence here, as disclosed by the bill of exceptions, which tends to prove that Caso was entrusted with the power of an agent ? It is shown that he and his family occupied the'room above the store, — that the key was left with him, and the store open and in his charge, to prevent the loss of custom.. This being the object and reason of the power confided to him to keep open the store, that power, to be effectual, must enable him to carry out that object; for it is a correct rule, that a general grant of a power, unless there are express restrictions that defeat the exercise of the power, must be so construed as to carry out the object of the grant. If the object hero of leaving the store open in charge of Case, and the key in his possession, was to prevent the loss of custom, how could this be done without supplying such customers as might call with goods ? T.he evidence, then, at least tends to show that the defendant was authorized, if it became necessary to prevent the loss of custom, to sell goods ; and if so, he was a clerk or agent under section 3143, and cannot be convicted under section 3T70. The charge, therefore, as it withdrew from the jury the consideration of the question of agency ml non, and assumed that the defendant might be convicted independently of that question, — was erroneous.</p> <p>1. The offence was either larceny, or embezzlement. Could the defendant be convicted for embezzlement under section 3143 of the Code? Our statute is very nearly the same as the 7th and 8th Geo. IY. ch. 29, § 47, cited in Roscoe’s Criminal Law, p. 437 : and it has been held under that statute, that no casual procuring a person to receive a sum of money will render bim “ a person employed for the purpose, or in the capacity, of a clerk.”; — Cases of Nettleton, Freeman and Burton, reported in Roscoe’s Criminal Law, pp. 431 to 444 ; all of which were held not to be cases of embezzlement. In the case at bar, the prisoner’s attention to the prosecutor’s store was a mere casual one : he was not employed as clerk, or agent, and therefore it cannot be embezzlement.</p> <p>2. Is it a case of larceny ? It may be said that the possession was lawful, and that no subsequent conversion of the property could make it larceny, unless the animus fwrandi existed at the time the prisoner came into possession; and that this is the law, is not intended to be denied. It is a clear maxim of the law, (2 East’s P. C. 564, 682,) that when one has the bare charge or custody of the goods of another, the legal possession remains in the owner; and the party may, in fraudulently converting the same to his own use, be guilty of trespass and larceny. Thus, a butler, who commits larceny of his master’s plate ; a shepherd, of the sheep; a servant, of the goods entrusted to his possession.' — The People v. Call, 1 Denio 120; United States v. Clew, 4 Wash. C. C. 100; State v. Self, 1 Bay 241 ; Commonwealth v. Brown, 4 Mass. 580 ; State v. Gorman, 2 Nott & McC. 90 ; Commonwealth v. James, 1 Pick. 375 ; Roscoe 600 ; 1 Hale’s P. C. 505 ; 1 Leach 266.</p> <p>3. If it be larceny, is it larceny from a store-house under section 3170 of the Code? The case of Chambers v. The State, 6 Ala. 856, is not applicable to this : that case was under a statute which required an entry into the house ; and the prisoner being a lodger, the court held that an indictment would not lie where the entry was permissive. — Clay’s Dig., p. 425, § 55. But our statute against larceny from a storehouse, &c., is very similar to the English statute of 12th Anne, st: 1, ch. 7, (cited in 2 East’s P. O. 629,) and does not require an entry ; and, like that, it was made to guard against servants and clerks, as well as strangers.</p> <p>4. Stealing from a dwelling-house by the owner of the dwelling, has been held larceny under the statute 7th and 8th Geo. IY. ch. 29,'§ 12. — 1 Russ, on Crimes, p. 853 ; 1 Car. & Kir. 147. It may be doubted whether the authorities generally go to that extent, but they certainly include all other per-sods than the owners themselves. — Roscoe, p. 591; 1 Russ. 417 ; 1 Moody's C. C. 89. In this case, the prisoner was not the owner, but merely the occupier of the up-stairs portion of the house.</p> <p>5. It is not necessary that the value of the goods should be assessed at all, mueh less each article separately : it has nothing to do with the prisoner’s guilt.- — 13 Ala. 157.</p>

Tried before the Hon. John E. Moore. The indictment in this case, which was found at the September term, 1853, of the Circuit Court, is as follows : “The grand jurois of said State upon their oaths present, that Henry Stanley and William B. Elliott, late of said county, on the 20th day of July, A. D. 1853, in the county aforesaid, did sell spirituous or vinous liquors to one John 6-.

ERROR ■ from the Circuit Court of Dallas. Tried before the Hon. Nat. Cooe. Joseph Noles was indicted, at the Spring term, 1853, for the murder of one George T. Sharp; was tried, and convicted, and sentenced to be hung, but the judgment was reversed at the June term, 1854, of the Supreme Court, and the cause remanded. — See 24 Ala. 612. A second trial was had at the Fall term, 1854, which resulted in another conviction, from which this writ of error is prosecuted.

<p>Errob to the Circuit Court of Dallas.</p> <p>Tried before tbe Hon. Nat. Cook.</p> <p>John Stewart, George M. Gordon, and John Gordon, were indicted (under the Code) for an assault with intent to murder committed on one Nathaniel J. -Lilly. The defendant Stewart being on -trial alone, “ the State was permitted to prove what George Gordon said to Mrs.,'Lilly (wife of the prosecutor) and one Mrs. Roscoe, during the time the offence charged is alleged to have been committed; said Gordon being indicted with defendant, and the proof showing Mm a particeps criminis with defendant, and defendant being present at the time the words were spoken. To this defendant objected, and his objection being overruled, he excepted. It was proved that the offence was committed at the prosecutor’s house in the night-time, his family being present. The State was permitted, also, to make proof of the contents of letters written by said George Gordon to the prosecutor some time before the offence charged is alleged to have been committed; which said letters made no allusion or reference to the defendant, nor to the offence charged against him, and alluded only to the prosecutor’s wife, and to the conversation and charges made by her against said Gordon, and were in effect and substance as follows : That the wife of said prosecutor had been using offensive language, and making unjust charges against said Gordon, and that he (Gordon) desired the prosecutor to make his said wife hold her tongue and cease talking about him ; that he (the prosecutor) did not know who he was dealing with, and if he had anything against him (Gordon), and wanted satisfaction, he (Gordon) would fight him in any way, from the point of a needle to the point of a cannon. It did not appear in evidence that defendant was in any way concerned in writing said letters, or that he had any knowledge of the writing or sending of them; and they were permitted to go to the jury without any proof of the knowledge or participation of defendant; to which defendant objected, and his objection being overruled, he excepted.”</p> <p>Other rulings of the court were excepted to during the progress of the trial, which it is unnecessary to state the assignments of error cover all the exceptions shown by the record.</p> <p>The court erred in permitting the State to prove the contents of the letter written by Gordon to the prosecutor some time before the commission of the assault. The acts and declarations of one defendant cannot bind another, unless they were made or done under a concerted plan, and in furtherance of a common object. The mere declarations of the party cannot establish such concert, nor does the mere participation in the assault. The State should have been held to prove the combination or conspiracy, before the previous declarations of one defendant can bind the other. — 1 Phil. Ev. 93, 94 ; 1 East’s P. C. 96, 97; 2 Stark. Ev. 232, 234, 235; Roscoe’s Cr. Ev. 76 ; 6 Term R. 527. The declarations of one defendant, amounting to a mere recital of past events, cannot be admitted to bind another : they must amount to acts in furtherance of a concerted plan and a common purpose, or they must accompany the transaction. — 1 Phil. Ev. 95, 97; 2 Stark. Ev. 286. The letter does not appear to have any connection with the transaction, nor with any concerted plan or common purpose; and such connection must appear, either upon the face of the instrument, or by proof aliunde. — 2 Stark. Ev. 234 ; Eoscoe’s Or. Ev. 79 ; Poster's C. L. 198 ; 2 Stark. Cas. 140 ; Hardy's case, 24 Howell’s State Trials, p. 452; 2 Burr's Trial (by Eobertson), pp. 538-9 ; Apthorp v. Comstock, 2 Paige 488 ; 1 Hawks 442; Ex parte Swartwout, 4 Cranch’s E. 75; 1 East’s P. C. 119 ; 4 Black. Com. 80.</p> <p>Gordon’s letter to the prosecutor did not tend to prove a conspiracy; but it did tend to show the feeling — the design— the malice — the threat of Gordon to commit a felony on Lilly; and afterwards a felony was committed on Lilly by Gordon and others. This letter, then, can be read as an act to show the nature and tendency of the conspiracy alleged, and which, therefore, might be read as the foundation for affecting the prisoner with a share of the conspiracy. — 2 Stark. Ev., top p. 235; 1 Green. Ev., § 111; 3 ib., § 93; The People v. Mather, 4 Wend. 261. The distinction is this : After the conspiracy is shown, and the offence committed and proved, that makes the conspirators a unit; and then the letters of any one of them, written to the person upon whom the felony was committed, and in relation to the offence charged, would elucidate the nature of the intent, and would be admissible evidence against all. — 4 Wend. 261, supraJ 2 Esp. Cas. 719. No authority can be found, which, after the conspiracy is proven, excludes the previous acts or declarations of one of the conspirators in relation to the conspiracy; because the proof of the conspiracy makes one act, one offence, and one offender in law. If Gordon was on trial alone, his letter would certainly be admissible against him; and if a conspiracy is shown, in which Stewart was concerned, he is Gordon.</p>

<p>1. Tinder an Indictment for retailing without a license in the general form allowed by the Code, (§ 1069,) the defendant cannot require the prosecuting attorney to state and elect, before any evidence is offered, for which one of the different varieties of retailing he intends to proceed.</p> <p>2. But after the State has once made its election by offering evidence of one particular offence, it will be held to that election through all the future proceedings, and on a second trial under the same indictment will not be allowed to offer evidence of a different offence.</p>

<p>1. If the order for a change of venue, in a criminal case, directs the clerk to transmit “ the original papers in the cause,” it is nevertheless his duty (Code, § 3613) to transmit a transcript; and such order, even if erroneous, is no ground for a reversal of the judgment and sentence of conviction.</p> <p>2. The failure of the clerk, after a change of venue has been ordered, to transmit a transcript to the clerk of the court to which the trial is removed, and the failure to have the cause entered on the docket of that court at the term next after the order of removal, is no discontinuance of the prosecution.</p> <p>3. The court to which the trial is removed may (Code, § 3615) issue a certiorari to the clerk of the court in which the indictment was found, requiring him to transmit certified copies of any and all papers and entries in the cause, and may order the original papers to he returned to him.</p> <p>4. It is not necessary that an indictment, under the forms prescribed by the Code, should be signed by the solicitor.</p> <p>5. The certified copy of the indictment may be read to the jury on the trial; and therefore, if the entire transcript, containing a copy of the indictment, is offered to the jury, and the defendant objects to it as a whole, his objection may be overruled.</p> <p>6. A verdict finding the defendant “ guilty of murder in the first degree, and penitentiary for life,” is sufficient to support a judgment of conviction and sentence of confinement in the penitentiary for life.</p>

Tried before the Hon. Aiídrew B. Moore. The indictment in this case, which was found at the Fall term, 1852, charged “ that John Chambers, late of said county of Perry, on the first day of October, A. D. 1852, at, to-wit, in said county, did unlawfully then and there fail to procure license therefor, and did then and there engage in the business of negro-trading without such license, and did then and there unlawfully exhibit for sale divers, to-wit, twenty negro slaves,…

Tried before the Hon. Geo. D. Shortridge. Jesse W. Bryan, the appellant, was indicted at the Fall term, 1854, of the Circuit Court of Pickens, for gaming; the indictment charging, in the alternative, all the offences enu* merated in section 3243 of the Code.

AppeaIi from tbe Circuit Court of Pickens. Tried before the Hon. G-eo. D. Shortbidge. The appellants were indicted (under section 3248 of the Code) for gaming.

Errob to the Circuit Court of Dallas. Tried before the Hon. Nat. Cook. The plaintiff in error was indicted, at the Eall term, 1854, for arson.

Error from the Circuit Court of Dallas. Tried before the Hon. Nat. Cook.

<p>Appeal from the Circuit Court of Limestone.</p> <p>Tried before the Hon. JOHN E. Moobe.</p> <p>INDICTMENT for gaming against Colley C. Elliott, David Elliott, Thomas Owen, and G-aines Smith, of whom the first two’only were taken, and tried jointly on the plea of not guilty. It appears from the bill of exceptions, that “ the State introduced as a witness one John G-. Russell, who testified, that he saw the defendant David Elliott play at cards in August, 1858, in a room of a tavern kept at a public watering-place in said county; that the other defendant on trial wag not engaged in the game, and in fact was not at the watering-place at that time. The State then introduced one William Hamilton as a witness, who testified, that he saw the same playing by tbe said David Elliott testified to by the witness Russell; that on another occasion he and defendant Colley C. Elliott, with one or two other friends, went to the same tavern, and called for a private room for the night, and were shown into a different room from the one in which the other playing took place ; that they went in, and locked the door, and engaged in a game of cards-in which the said Colley C. Elliott participated; but on this occasion defendant David Elliott was not of the party, and was not at the watering-place at that time. The witness Russell had never seen Colley C. Elliott play at that tavern. The State then introduced as a witness one Henry M. Stanley, whose testimony was substantially the same as that of the witness Hamilton, except that he stated that said playings were near a month apart. The defendants introduced no evidence, and this was all on the part of the State.</p> <p>“Upon this evidence, the defendants requested the court to charge the jury, that both defendants could not be convicted, unless there was proof of a playing at the same time and place. This charge the court refused to give, but charged the jury, that if it was proved to their satisfaction that the defendants played, as charged in the indictment, at a tavern, though they may not have plajred. on the same day, nor together, and though there may have been no community of design between them, nor any connection between their playing, yet each defendant might be found guilty under the indictment ; to which charge, as well as to the refusal to charge as requested, the defendants excepted.”</p> <p>The defendants also requested the court to charge, “that if the evidence showed that they played in a room in a tavern-house, which they had rented for the night, under lock and key, having called for it as a private room, they could not be convicted as for playing at a tavern”; which charge the court refused, and the defendants excepted to the refusal.</p> <p>These rulings of the court are now assigned for error.</p> <p>If the charge of the court can be sustained, you may convict A and B under the same indictment for gaming, when the former played in Mobile in January, and the latter in Huntsville in March; or you may convict them for a joint assault and battery upon C, when A beat him in Mobile in January, and B in Huntsville in March. The statement of the position shows its fallacy. — 1 Archb. 'Grim. PI. 97, and n. (2).</p> <p>cited the following authorities : 2 Hale’s P. C. 174; 1 Chitty’s Criminal Law, pp. 254, 255, 270, 271 ; 5 Bac. Abr. 84; 8 Wend. 211; 8 East 46 ; 1 Blackf. 431 ; 7 Serg. & R. 476.</p>

Tried before the Hon. C. W. Rapiek. 1. The indictment against Paine was for a felony; and, under the Code, bail could only be taken in open court, or by a judge in vacation. — Code, pt. iv, ch. 8, tit. 2 ; 15 Ala. 108. 2. The order of the court for the discharge of the prisoner, upon his entering into bond, was a nullity, as the court had no right to delegate its power. — Butler v. Poster, 14 Ala. 328. 3.

Tried before the Hon. B. W. Huntington. It is unnecessary to state the facts of the case as shown by * the assignments of error and bill of exceptions. The appeal was dismissed by the court ex mero motu.

<p>1. Under an indictment for failing and neglecting to keep in repair a certain turnpike road, which defendant and another were authorized by private act of the Legislature to construct, the court cannot take judicial notice of the charter if it is not set out, but must look only to the allegations of the indictment ; and if it alleges that the defendant alone accepted the charter, and erected toll gates and took toll by its authority, but does not allege that the charter authorized him to accept alone, or required him to keep the road in repair, it is fatally defective on demurrer. — Code, § 3501.</p>

Tried before the Hon. Ales. McKinstry. The indictment in this case was found at the Juneterm, 1854, and charged, “that William H . Spivey inveigled, stole, carried or enticed away a slave named Joe, the property of Jo-sepb H. Skinner and George W. Skinner, with the intent to convert said slave to his own use.” The defendant pleaded not guilty, was. tried, convicted, apd sentenced to the penitentiary for five years.

Tried before the Hon. Robert Dougherty. Jefferson Brock, the plaintiff in error, was indicted at the March term, 1854, of the Circuit Court of Shelby, for arson ; the charge being, that he “ wilfully set fire to and burned an out-house of John A. Griffin.” On his application the venue was changed to Talladega, where he was tried at the Fall term, 1854, and convicted, and sentenced to three years’ confinement in the penitentiary.

<p>Error from the Circuit Court of Bibb.</p> <p>Tried before the Hon. Andrew B. Moore,</p> <p>At the Spring term, 1853, of the Circuit Court of Perry, an indictment for the murder of one John Rickard was found against the following named slaves, viz., Wash, George, Collins, Brister, Ctesar, Jeff, Bill, John Rodgers, Jerry, John Wallace, and Archer ; the indictment charging that Wash struck the mortal blow. At the same term of the court, a nolle pros, was entered as to the defendant Jerry; the defendants John Wallace, Wash and George were tried, convicted, and sentenced to death ; and the cause was continued as to the other defendants, on their application. At the next term of the court, on the application of the defendants, the venue was changed to Bibb county, where a trial was had at the ensuing Fall term, 1854. Several exceptions were taken to the rulings of the court during the progress of the trial, which are stated in the bill of exceptions as follows :</p> <p>“ The defendants objected to going to trial, on the ground that a copy of the indictment had not been served on them or their counsel, two entire days before the trial; but it being shown to the court that a copy of the copy of the indictment set out in the transcript sent up by the clerk of the Circuit Court of the county of Perry was delivered by the clerk of the Circuit Court of Bibb to the counsel of said defendants at the last term of this court, the court overruled the objection, and decided that said defendants should go to trial, so far as the said objection was concerned ; and said defendants thereupon excepted.</p> <p>“ All of said defendants further objected to going to trial before the Circuit Court of Bibb county, on the ground that the following transcript did not show thatthe facts therein set forth did not appear of record on the records of the Circuit Court of Perry ; and further, because the clerk showed by his certificate that he was certifying the proceedings in a different case from that shown in the indictment and in said transcript; and, 3d, that said defendants could not be legally put on their trial on said transcript.” The transcript referred to is then set out at length in the bill of exceptions, showing the organization of the grand jury by whom the indictment was found, and containing a copy of the indictment, with the endorsement thereon, and all the orders of the Circuit Court of Perry in pelation to the cause; and appended to it, is the certificate of the clerk of that court, that it is “ a full, true, and perfect transcript of the organization and caption of the grand jury, the indictment, with all the endorsements thereon, and all entries relating thereto, and the order for the removal of the trial, and all other orders in the cause, embracing the recognizances of the State’s witnesses, and all other proceedings had by the court aforesaid, in the case of the State of Alabama (plaintiff) against John Wallace, Wash, George, Collins, Caesar, Brister, Jeff, Bill, John (alias John Rodgers), and Archer (alias Archie), slaves, as defendants ; all of which appears to us of record.” The bill of exceptions then proceeds : “ But the court overruled their objections, and all the said defendants exeepte'd.</p> <p>“ In selecting the jury for their trial, after the (State ?) had accepted a juror named Walker Fitts, and the defendants Jeff, Cassar and Brister had acknowledged themselves satisfied, and also accepted him as a juror by whom, with others, to be tried, said juror was challenged by three others of the defendants, viz., Bill, John, and Archer; and the court, against the objection of said Jeff, Brister, and Crnsar, allowed said challenge, and rejected said juror; and thereupon said Jeff, Brister, and Cassar excepted.” Eight other jurors, who had been accepted by the State and said Jeff, Brister, and Casar, were in like manner rejected by the court on the challenge of the other defendants ; and to each rejection the defendants Jeff, Brister and Cassar excepted. Six other jurors, who had been accepted by the defendants Bill, Archer, and John, were challenged by the other defendants, and set aside by the court; and to each rejection the three first-named defendants excepted.</p> <p>“ On the trial of the cause, the following facts appeared in evidence : That the body of John Rickard was found interred in the bank of a ditch in Perry county about the 28d of February, 1853 ; and on examination of it, it was found that two wounds had been inflicted on the side of his head, which had fractured his skull, and produced his deaththat lie disappeared about the 12th of January, 1853, and was not after-wards seen until his body was discovered, as above stated ; that the deceased was a ditcher by trade, and at the time of ftis death was engaged in cutting a ditch on the plantation of Mr. S. F. Pool in Perry county, about twenty feet in width ; that he had thirteen negro men (slaves) in his employment as a ditcher, who worked under him in ditching, among whom were the prisoners and three others, viz., John Wallace, Wash, and George, who had heretofore been tried, convicted, and executed for the murder of deceased ; that the deceased and said thirteen slaves lived on the plantation aforesaid, and together occupied a cabin thereon, about sixteen feet square, in which they slept at night, and in the centre of which the fires wore made ; that the deceased was the only white person that staid with or where said slaves were; that some time after he disappeared, suspicions were aroused amongst the neighbors that he had been killed by said slaves, who still continued to work together on the ditch, which deceased was cutting when last seen, under the direction of John Wallace, who was the foreman of the deceased; that by a previous understanding some sixteen or seventeen of the neighbors, some of whom were armed with double-barreled guns, others of them having negro whips commonly used by overseers, and others with sticks, went, about the 23d February, 1853, to the place where said slaves were staying on said Pool’s plantation ; that one of the company also carried along a' pack of negro dogs, which were known to be such to all the prisoners, Jeff, Caesar, Brister, and John Rodgers ; that at the cabin, where said Rickard had staid, they found one of the boys who was in the employment of Rickard, and that he was placed in charge of the company; that others of the company went down to the ditch, about two hundred and fifty yards from the cabin, where said slaves were at work, and, after getting them all together, took them in custody, the prisoners being included in the number taken ; that one or more of said company took each one of said slaves in charge, and in this way they were all marched up to or near said cabin ; that Thos. Phillips, one of the company, carried the boy Caesar to the cabin, and on the way, as said Phillips testified on the trial, he discovered that Caesar was much alarmed, so much so that he trembled ; that Phillips told him not to be alarmed, — that all they had come here for was, to find what had become of old man Rickard; that after the slaves were assembled near said cabin, some of them were tied, and the company then separated, them a short distance from each other, for the pur* pose of examining them, — the place, however, being 'open, so that any one of them might see what was being doné to the others, and they not being so far separated but that they could hear any blows that might be inflicted on any of them in whipping ; that before they were separated the last time, near the cabin, some one of the company stated in their hearing that they had come to find out what had become of the deceased ; that Phillips again took the boy Caesar in charge, to examine him, and that he denied all knowledge of the deceased being killed. One of the witnesses, a slave who was a witness on the trial, testified, that according to his best recollection, one of the company commenced whipping Bill, in view of the prisoners Jeff, Brister, Cmsar and John Rodgers, before any confessions were made by any of said slaves except a boy by the name of Ned; but another witness, a white person who was one of the company, testified, that he did not recollect whether the confessions were made before or after the commencement of the whipping of said slaves.— There was some conflict in the testimony, as to whether the confessions were made before or after the boy Bill Stokely (one of the accused) was whipped. A witness for the State, one J. P. Pool, was then introduced, and testified, that he was one of said company that took up said slaves; that soon after said slaves were separated near said cabin, and were being examined, it was announced so that said slaves (including said Brister, Jeff, Ctesar, and John Rodgers) could hear it, that the boy Ned confessed; that said Pool then went to Oaiser, and asked him what part he had taken in the murder. Caesar then, by his counsel, objected to his confessions, made in answer to said question, being received in evidence : but the court overruled the said objection, and allowed said confessions to bo received, and said defendant Ctesar excepted. Said Pool then testified, that in answer to said question, Caesar confessed that a plot had been mentioned to him by John Wallace to kill the deceased, and that he had assented to it, — that he was in the house when the deceased was killed, but was asleep and had no hand in the killing, — and that after deceased was killed he had assisted in conveying him to the grave and burying him. To these confessions, thus obtained, said defendant Caesar objected, and moved tbe court to exclude the same from the jury; but the court overruled the objection, and allowed them to go in evidence to the jury ; and defendant Caesar excepted.”</p> <p>Said Pool further testified-, that he asked each one of the other defendants separately the same question, viz., “ What part did you take in the murder of the deceased V’ — that Brister confessed “ that John Wallace told him there was a plot to kill the deceased, — that he (Brister) assented to it, — that he was in the house when deceased was killed, but was asleep, and- had no hand in the killing, — and that he had assisted in digging the grave for deceased ” ; that J’eff confessed, in answer to said question, “ that John Wallace had told him there was a plot to kill the deceased, — that he assented to it, — that he was in the house when deceased was killed, but was asleep, and had no hand in the killing, — and that he helped to dig the grave”; that John Rodgers confessed “ that John Wallace had told him there was a plot to kill the deceased, and that he had assented to it, — -that he was in the house when deceased was killed, but was asleep, and had no hand in the killing, — and that he went with those who carried the deceased to the grave, but did nothing else.” Brister, Jeff, and John Rodgers each made the same objections to the admission of their confessions that Caesar had made, as above stated, and excepted to the ruling of the court in admitting them ; the objections and exceptions of each one being expressed in the same language used in the case of Caesar in the last paragraph.</p> <p>“ On cross-examination by defendants Brister, Caesar, Jeff, and John Rodgers, said Pool stated, that in stating the confessions of said defendants he did not pretend to give their language, or that of any one of them — that he used his own language in testifying, and gave his best recollection of the substance of the language used by them ; and thereupon said defendants again severally moved the court to exclude each -of their confessions above mentioned from the jury, but the court overruled the several objections, and the defendants severally excepted. Said Pool, on cross-examination, further deposed, that in testifying to the confessions of said Brister, Caesar, Jeff, and John, he stated the substance of all that he recollected each of said defendants said, according to his best recollection, but that they may have said more, which he does not recollect; and thereupon said defendants again severally moved to exclude their said several confessions, so deposed to by said Pool, but the court severally overruled their motions, and defendants severally excepted. On re-examination said Pool testified, that he had testified to the substance of all that each of said defendants stated on that occasion, but that they may have stated something he did not recollect; that said Brister, Omsar, Jeff, and John Rodgers all said, when • they made said confessions, that they had nothing to do with killing said deceased, and that he was killed by George and Wash ; that Jeff further said, he did not know when the deceased was killed ; and that John Rodgers said he did not assist in killing him.</p> <p>“ There was evidence that, when said defendants were taken up, and after said confessions were made, defendants were required by the persons, who had taken them up to point out the grave of deceased; and that the persons having them in charge made them turn their backs to the ditch, and took one at a time, and made each one put' a mark on the place which each one severally pointed out as the place of the grave. A witness (Cunningham) testified, that on the'morning after the day of the disappearance of the deceased, he went to the ditch where the negroes who had been in charge of the deceased were at work on the ditch, and found all the thirteen slaves which the deceased had had at work with him, except Archer, (including the prisoners,) and then asked the slaves present where Mr. Rickard was, (addressing the crowd, and no one in particular) ; that they hesitated in giving an answer, and looked at each other, and some one of them told witness to ask John Wallace where he was,- — they supposed he could tell where he was. It was shown, also, that John Wallace was Rickard’s foreman, and always had charge and control of. said slaves in the absence of deceased. Said Cunningham further testified, that he did ask John Wallace, and he said that the deceased had gone to New.Orleans. There was no evidence introduced to show that Wash struck -the blow, or blows, that killed the deceased; and there was no testimony to show that Wash and George were parties to the plot to kill the deceased.</p> <p>“ The testimony in behalf of the State being closed, and before, any testimony was introduced by the defendants, the following defendants, to-wit, Archer, Bill, and Jeff, offered to demur .severally to the evidence introduced by the State against them severally ; and the court, upon the ground that the court was not bound to take the responsibility of settling and passing upon the testimony, but that the jury should pass on the case, refused to allow said defendants to demur to the said evidence, and to this ruling of the court they severally excepted. The said defendants then severally insisted upon the court passing on their said demurrer to the evidence after all the testimony on both sides was closed ; and the court again declined to dispose of said demurrers, on the ground that the jury should, in all cases, pass upon the testimony, and that the court, in such a case as this, was not bound to do so ; and to this ruling of the court said defendants Archer, Bill, and Jeff severally excepted.</p> <p>“ The defendants Brister, Csesar, Jeff, and John then proposed to introduce as a witness their co-defendant Archer, on the ground that there was no evidence against him to authorize him to be put upon his defence, — the only evidence against him being that he was on the place when the deceased was killed, and was seen at the cabin where the deceased was killed, on the morning after the night on which the killing took place, about daylight, and was one of the slaves at work with the deceased at the ditch for some days previous to the killing ; and on'the day the body was found, the said defendant Archer pointed out the grave, saying, that the place which he pointed out was where the other negroes told him they had buried the old man; and saying at the same time, that he had no knowledge of the killing, and had no hand or part in it. But the court overruled this motion, and said Cassar, Brister, Jeff, and John Rodgers severally excepted. These defendants then moved the court (to) direct and allow the jury to return a verdict of acquittal as to their co-defendant Archer, on the ground that there was no sufficient evidence of his guilt to require him further to defend ; which motion the court refused, and said defendants (Caesar, Brister, Jeff, and John Rodgers) excepted.</p> <p>“ The defendants requested the court to charge the jury—</p> <p>“ 1. That, if they believed the slaves John "Wallace, George, and Wash killed the deceased, and that the accused worked with them from that time until they were taken up, and that there were others of said slaves who had not been charged with the murder of the deceased, and who knew where his grave was and pointed it out, and who also worked with the accused, — that these facts might account for the accused knowing where the grave was, because they, might have been told where it was; which charge the court refused, and said Cassar, Brister, Jeff, and John Rodgers severally excepted.</p> <p>“ 2. That, if the jury cannot determine, beyond a reasonable doubt, that the confessions made by Brister, Cassar, Jeff, and John Rodgers to Mr. Pool were made before Bill (one of the defendants) was whipped, — then they must exclude their confessions from their consideration entirely; which charge the court refused, and said Osesar, Brister, Jeff, and John Rodgers severally excepted. The court, after refusing said charge, stated to the jury, that they might look to any other facts in the case to solve this doubt.</p> <p>“ 3. That under the indictment in this case, if there was no evidence that the boy Wash struck the blow, or blows, the jury must find the defendants not guilty ; which charge the court refused, and the defendants all severally excepted.</p> <p>“ 4. That under the indictment in this case, if the jury cannot determine from the evidence whether John Wallace, George, or Wash struck the blow or blows which produced the death of the deceased, they must find the defendants not guilty; which charge the court refused, and the defendants Cffisar, Brister, Jeff, and John Rodgers severally excepted.</p> <p>“5. That, if there was no evidence that Wash and George were parties to the plot to kill the deceased, and if they were satisfied from the testimony that Wash and George did kill' the deceased, then they could not find the defendants guilty; which charge the court refused, and defendants severally excepted.</p> <p>“ The court charged the jury—</p> <p>“ 1. That, if they found that Cunningham, on the morning after the deceased disappeared, went to the ditch, and inquired of the slaves there for the deceased, and they hesitated or failed to answer him that question, and that the prisoners were present when the said question was asked, — they might take that as a circumstance tending to show their guilt; to which charge the defendants severally excepted.</p> <p>“ 2. That the true test is, whether you believe the confessions true or not; and if you believe them to be true, the State must have the benefit of them as evidence. The defendants severally excepted, to this charge.</p> <p>“ 3. That they might believe one part of the confessions, and reject the other, and might look to all the circumstances connected with the case to ascertain whether the whole, or only a part, was true; and to this charge the defendants severally excepted.</p> <p>“ 4. That,df they believed the defendants were present, and encouraged another to commit the murder, they were as guilty as if they struck the blow, and concealment of the crime, if they knew it had been committed, is a circumstance for the consideration of the jury as to their guilt; and to this charge the defendants severally excepted.</p> <p>“ After the jury had retired to consider their verdict, the defendants Brister, Csesar, Jeff, and John Rodgers were remanded to jail, and while in jail the jury returned into court; and on being asked if they had agreed upon a verdict, replied through their foreman that they had. The court then directed the clerk to receive and read the verdict, and the clerk received and read it aloud accordingly, in the presence of the court and a large number of by-standers; the prisoners Bris-ter, Caesar, Jeff, and John Rodgers not being in court at the time, and being in jail. The court then observed to the jury, that they were discharged, and the jury started- out of the court-room, but had not got out of the bar. It was then discovered that the prisoners were not in court, and the court immediately stated to the jury that they were not discharged; and ordered the clerk to hand the papers in the cause back to them, and directed the sheriff to bring the said prisoners into court. "When the prisoners were brought into court, they objected to the clerk receiving the verdict of the jury, on the ground that the verdict had been received by the court and read aloud in their absence, and that they had been deprived of their right to have the jury polled. But the court overruled the objection, received said verdict, and ordered the same to be read in the presence of the said prisoners; which was done accordingly, and said prisoners excepted.”</p> <p>The defendants Brister, Caesar, Jeff, and John Rodgers then moved the court, 1st, to set aside the verdict of the jury; 2d, “ that they be ■ discharged, the verdict of the jury being received in their absence” ; 3d, in arrest of judgment; and, 4th, for a new trial. In support of these several motions, they relied on the facts above stated in reference to the verdict being received in their absence, and also introduced evidence of the misconduct of some of the jury while considering their verdict, in separating from each other without the charge of an officer, and in conversing with other persons; but upon all the evidence, which it is unnecessary to state at length, the court overruled each motion, and the defendants severally excepted to each ruling of the court.</p> <p>The jury returned a verdict of guilty against the defendants Caesar, Brister, Jeff, and John Rodgers, and not guilty as to Bill and Archer; and the court thereupon pronounced sentence of death on the four first-named, but ordered the execution to be suspended until the decision of the Supreme Court could be had upon the points reserved by the bill of exceptions, all of which are now assigned for error.</p> <p>I. The Code, (§ 35*76,) and also Clay’s Digest, (p. 459, § 53,) require that a copy of the indictment shall be served on the prisoner, if in custody. In this case, it was served on the counsel, not of record, or the same who appeared for the de-fence at the trial, so far as the transcript discloses.</p> <p>II. The confessions were obtained under circumstances, a bare recital of which is sufficient to show that they ought not to have been admitted. The defendants are slaves, — were on the plantation of S. F. Pool, without any white person near them to whom to look for protection, — were taken into custody by sixteen or seventeen white men, who went on the place armed with double-barreled guns, negro whips and sticks, and accompanied by a pack of negro dogs, known to be such by defendants. They were told what these white men had come for — viz., to find out what had become of the old man Rickard; they were separated for examination, but kept in custody, and some of them were tied, and so near that each could see and hear what was done to the others; it was announced in their hearing that one had. confessed, and then the witness approaches each one of the defendants and asks him, “ What part did you take in the murder ?” (thereby assuming his guilt). If to all this it be added, that it was proved or even left doubtful that one of the number was whipped before the confessions were made, it is too clear for argument that defendants confessed under the “ torture of fear,” or rather, under the fear of torture. It is not surprising that one of these unprotected slaves was so terrified at this formidable display of men and things most dreaded by them, that he actually “ trembled” ; and to hold that a confession drawn from this defendant, quaking with fear and agony at what he saw and heard, would be equivalent to holding that no amount of fear which could exist in the mind, should render confessions extracted under its influence illegal. — Wyatt v. The State, 25 Ala. 9 ; 1 Green. Ev., §§ 214, 219, 222, 225 ; 3 Ph. Ev., (C. & H. Notes), part 1, 429, note 259.</p> <p>2. It was incumbent on the State to show that the confessions were voluntary, — not on the defendants to show that they were not; One witness testified that the whipping commenced before, the confessions were made; another (a white person) that he could not say whether the whipping commenced before or after the confessions. This doubt, even under the circumstances, was sufficient to require the exclusion of these confessions. — Wyatt v. The State, supra; 1 Green. Ev. 219.</p> <p>Ill; Confessions, like all other admissions, when attempted to be detailed, must be fully deposed to. Part cannot be given, and part not. The precise language used must be given, if possible ; if not, then the'substance of all that was said must be stated by the witness. — Davis v. The State, 17 Ala. 854, (357-8); Dennis & Strickland v. Chapman, 19 ib. 29; 1 Green. Evidence, §§ 218, 214; 3 Ph. Ev., (C. & H. Notes,) 425»</p> <p>The testimony of Pool, as to the confessions, falls far short of this. He says, that he does not “ pretend’fto give the language of defendants, or the language of any one of them; that “ he stated the substance of all he recollected that each defendant said, according to his best recollection, but that they may have said more which he did not r60011601” (p. 14-15). How vague! He does not pretend to use defendants’ language, nor does he give the substance of all they said, but only the substance of all, or so much as he recollected. How much may he have forgotten 1 He himself admits that they may have said more than he detailed, and which he did not recollect. If such testimony is admissible, then the lives of men are dependent, not on what they may admit or confess, but on the imperfections and frailties of those who hear them, and who judge and pass on what they suppose to be the substance of what is said, and then detail so much of that as they happen to recollect.</p> <p>IV. The defendants had a right, by demurring to the evidence, to withdraw their case from the jury, and throw themselves upon the judgment of the court. The constitutional right to be tried by a jury is secured to every citizen, and if a defendant is disposed to waive this right, the tribunal before which he is tried has no right to decline to pass on his case, and to force .Mm before a jury by whom he is not willing to be tried, and who may be influenced by prejudices which are supposed never to reach the bench.</p> <p>V. There was no evidence against Archer that could raise even a suspicion of his guilt, and under section 2288 of the Code, he ought to have been admitted as a witness.</p> <p>VI. The circumstance that defendants pointed out the grave of deceased having been introduced against them, the defendants sought to explain by showing that they might have obtained their information from othei’s with whom they had for some time associated and who had knowledge of these facts. But the court, by refusing the, first charge asked for, in effect asserted that this knowledge of the accused could not be thus accounted for. This was wrong. — 3 Ph. Ev., (C. & H. Notes), part 1, p. 417; The State v. Guild, 5 Hals. 188.</p> <p>VII. As the court, on the preliminary examination, declined to exclude the confessions of defendants, then the question ought to have been referred to the jury, and the court should have charged them that, if they believed that the confessions were improperly obtained; they'should disregard them. — The State y. Guild, 5 Halstead, 188; 3 Ph. By., (0. & H. Notes,) part 1, p. 423-4, 429, 301; 5 Pick. 477, (496).</p> <p>YIII. The indictment charges that defendants and others, including boy Wash, with a club-axe, which Wash then held in both his hands, killed deceased. There was (says the bill of exceptions,) no evidence to show that Wash, struck the blow ; and the court was asked, and refused to charge, that if this material averment in the indictment was not proved, that they must find defendants not guilty. That it is material, is shown in 1 Archb. Or. PI. 89, (2), note 2.</p> <p>IX. There was no evidence (page 16) that Wash and George were parties to the plot to kill deceased. The plot, so far as the proof shows, was between John Wallace and defendants. The proof shows that Wash and George did the killing. The refusal of the court to give the last charge, therefore, asserted the preposterous position, .that if defendants and John Wallace conspired to kill deceased, and afterwards Wash and George, having nothing to do with this plot, killed the deceased, then the defendants are guilty; in other words, if defendants and John Wallace conspired to kill deceased, but did not do it, and some other person with whom they had no connection did it, then defendants are as guilty as if they themselves had done the killing.</p> <p>X. The first charge given at the instance of the State, (page 18,) cannot be sustained. The fact that Cunningham addressed a crowd of thirteen slaves, the defendants being among them, and that defendants, who do not seem to have been in part or in any way called 'on to answer, “ hesitated/7 or failed to answer, surely ought not to be used against them. They had a foreman who was their spokesman, and it was natural that they should refer to him, as the proof shows they did, to answer the question.</p> <p>XI. The last charge asked for is abstract and calculated to mislead the jury. There was no evidence to show that defendants were present, in legal sense, and encouraged the striking of the blow. The proof shows that most of them were asleep, where they were bound to be; and if asleep, they could not encourage the deed. Nor was there any evidence to show any act of concealment of the crime. The bare fact that one does not tell what he knows, cannot be held to make him responsible for all acts of which he has information.</p> <p>XII. The second charge given, at the instance of the State, is also erroneous, — because the true test as to confessions is not whether they are true or not, but whether properly obtained or not. If the position asserted in the charge be correct, confessions obtained on the rack would be admissible.</p> <p>XIII. The dispersion of the jury vitiated their verdict.— People v. Douglas, 4 Cowen 26, (38) ; Smith v. Thompson, 1 ib. 221, note a, p. 235-6-1; Woods v. Hart, 3 Caines’ R. 95 ; Dana v. Roberts, 1 Root’s (Conn.) 134; Oliver v. Trustees of Presby. Oh. of Springfield, 5 Cowen 283.</p> <p>2. The presumption is that injury results from the dispersion 'qf the jury, and it must be shown affirmatively that injury did not result, or the verdict will be set aside. — McCann v. The State, 9 S. & M. 465, (461); Hines v. The State, 8 Humph. 591, (9 U. S. D. 343, §§ 21, 22); Boles v. The State, 13 S. & M. 398, 401-2 ; Durfee v. Eveland, 8 Barb. Sup. C. R. 46 ; Overbee v. Commonwealth, 1 Rob. (Va.) 156; 1 Archb. 118-19, (note), where the authorities are collated.</p> <p>XIY. Verdict cannot be rendered in the absence of the prisoner. — The State v. Hughes, 2 Ala. 102 ; 2 Hawkins 619, § 2 ; Rex v. Landsingham, 1 Raym. 193.</p> <p>XV. It is the duty of the court to keep the jury together, and if it fails, then it commits an error, — because it has not complied with what the law imposes as a duty. This is matter which can be reached by writ of error, apart from all considerations of motions in arrest of judgment, new trial, &c.</p> <p>1. After a change of venue, it was too late for the defendants to raise the objection that a copy of the indictment had not been served on them. — State v. Williams, 3 Stew. 463. This decision was made upon a statute clothed in the same language with that used in the Code. — Toulinin’s Laws of Ala. ; Aik. Digest. The action of the court will be presuifi-ed to have been regular. — Morris v. The State, 25 Ala. 59.</p> <p>2. But the record shows that a copy was served on the defendants’ counsel, and this is sufficient; for two reasons — 1st, because such has been the general practice of the State, which the court will judicially recognize (Millard’s Adrn’r v. Hall, 24 Ala. 224) ; and, 2d, 'because the party is bound by the acts of his-counsel: whatever is “ done by him in the pendency of a cause, is considered as done by authority of his client, and is binding on him.” — 2 Md. Ch. Dec. 143 ; ib. 425 ; 13 U. S. Digest, p. 67, § 6 ; Lewis v. Sumner, 13 Metcalf’s R. 269 ; Courcy v. Brenham, 1 La. Ann. R. 397 ; Flake & Freeman v. Day &■ Co., 22 Ala. 132 ; 4 Ired. Eq. 485 ; 3 Dev. 62 ; 6 How. (U. S.) 106 ; 3 Crunch, 297 ; 1 Burr. 59 ; 11 Ala. 820.</p> <p>3. There was no error in allowing to each defendant his peremptory challenges. — Hawkins v. The State, 9 Ala. 141 ; Bixbe v. The State, 6 Ohio R. 86.</p> <p>4. It was a matter of discretion with the court, whether or not to direct an acquittal as to Archer ; and its action cannot be reviewed on error. — The State v. McLendon, 5 Strobh. 87 ; 2 U. S. Digest, p. 538, § 347 ; Code, §§ 3594-5.</p> <p>5. It is conceded, that a defendant, in a capital case, has the right to be present when the verdict is rendered ; but in this case, the defendants had the substantial benefit of that right. The mere fact that the jury handed the verdict to the clerk, by whom it was read aloud in the absence of the prisoners, did not injuriously affect them, if by such action they lost no right which then existed. The record shows that the irregularity was discovered before the actual dispersal of the jury ; and that the jury was immediately recalled, and the verdict rendered in the presence of the prisoners-. The order dismissing the jury was a judicial act which could be set aside so long as the jury remained within the control of the court. But, even if the action of the court was erroneous, the prisoners were not on that account entitled to their discharge. The State v. Hughes, 2 Ala. 102 ; The State v. Battle, 7 ib. 259.</p> <p>6. The court properly refused to allow the defendants to demur to the evidence. In all the prosecutions by indictment or information, the constitution (Art. I, §§ 10, 28) is mandatory that the-trial shall be by jury. These defendants could only be tried by indictment, and an indictment can only be found by a grand jury. It is plain that a party could not, by appearing in court, admitting his guilt, and waiving the indictment, subject himself to punishment; because the constitution is imperative, that^an indictment shall first be found, to give the court jurisdiction; and after the indictment is found, it is equally imperative as to the mode of trial. If the indictment, then, cannot be waived, no reason is perceived why a waiver of trial by jury could be made. — Doss v. Commonwealth, 1 G-ratt. 557.</p> <p>7. The rule as to confessions, whether made by white persons or by slaves, is the same. — Clarissa v. The State, 11 Ala. 62. That they are slaves, and ignorant, are facts for the consideration of the jury in weighing the testimony. — Sea-born and Jim v. The State, 20 Ala. 18. The confessions must be freely and voluntarily made, and uninfluenced by promises or threats ; and they are sometimes rejected, when made in response to a question which assumes the party’s guilt. But the mere fact that the parties are in custody, will not exclude confessions. — Seaborn and Jim v. The State, 20 Ala. 18 ; Wyatt v. The State, 25 ib. 12 ; Spence v. The State, IT ib. 197 ; Carroll v. The State, 28 ib, 28. The negroes in this case, it is true, were all arrested, by men who were armed ; but no threats or promises were made : on the contrary, it was announced in the presence of the negroes, that they need not be alarmed, — that the party had only come to find out what had become of Bickard. The only hypothesis, upon which the confessions can possibly be excluded, is, that they were made after the boy Bill had been whipped. This fact, however, must affirmatively appear. One witness swears, that according to his best recollection, they were made after-the whipping; while another witness is unable to remember which occurred first; and the bill of exceptions says, “ there was some conflict of testimony” on that point. The rule is, that the bill of exceptions must be construed most strongly against the party excepting ; and it is evident from the language here used, that there was other evidence on that point not set out in the record. For the purpose, then, of sustaining the judgment of the court, it will be intended that there was evidence sufficient upon which to predicate the ruling of the court. The question propounded by the witness Pool to each one of the prisoners, did not assume the guilt of the party addressed : it was tantamount to asking whether he had taken any part in the murder. All the other cases decided in this State, in which confessions have been ruled out on the ground that they were made in answer to questions assuming guilt, were based on the.fact that the question assumed guilt affirmatively, and on the principle that the slave could not deny the assertion of the master. — Clarissa v. The State, 11 Ala. 62. In this case, no guilt is assumed, but the party is left to make such answer as his feelings might prompt. The case of Clarissa is not regarded as authoritative, and the true rule is laid down in Carroll’s case, 23 Ala. 28.</p>

Hon. James B. Clark, presiding. The petitioner (John S'. Rowland) alleges that he filed a bill in equity, in April, 1853, against one Samuel Whitman, for the settlement of certain partnership accounts ; that after the defendant had answered, and had also filed a cross bill, a written agreement was entered into between them, “ that the said original bill, cross bill, and answer, and all the claims set up in the same, should be totally abandoned by the parties, as though they…

Tried before tbe Hon. Alex. B. Clitherall. The appellant, with Bird Ivey, William T. Hawkins, William H. Davis, Joseph May, and Robert 0. Bealle, was indicted, at tbe Spring term, 1854, of the Circuit Court of Pickens, for gaming.

The petitioner alleges, that he is a slave, the property of Hon. Samuel F. Rice; that he was arrested, on the 28th of December, 1854, by a constable of said county, under a warrant from a justice of the peace, which was issued on the affidavit of one Samuel Adler that petitioner “ did, on or about the 2d day of December, commit the crime of burglary, or break open a store-house the property of said Adler” ; that the said justice, after hearing all the evidence adduced before…

<p>Error to the Circuit Court of St. Clair.</p> <p>Tried before the Hon. Edmund W. Pettus.</p> <p>Thomas J. McGehee, the plaintiff in error, was indicted at the Spring term, 1852, of the Circuit Court of St. Clair, for resisting process in the hands of a constable. The offence was charged to have been committed on the first day of March, 1852 ; while the process, which is set out in the indictment, was returnable on the tenth day of January, 1852, before the justice of the peace who had issued it. Having been found guilty by the verdict of a jury, the defendant moved in arrest of judgment, “ because the indictment does not charge any offence against him; but defendant not being in court, the 'motion was overruled, and defendant’s counsel excepted.”</p>

<p>Appeal from the Circuit Court of Pickens.</p> <p>Tried before the Hon. Geo. D. Shortridge.</p>

A. J. Walker, chancellor, &c., on the petition of Jerome B. Gist 'to obtain his discharge from confinement in the county jail of Madison. Held: that territorial courts are no courts, within the meaning of the constitution, in which the judicial power conferred by the constitution can be vested. Thus, we sec, that if the justice be a ministerial officer, Congress cannot appoint him. Is the petitioner entitled to the writ of habeas corpus ?

ERROR from the Circuit Court of Pick ens. Tried before the Hon. Geo. D. Shortridge.

Hon. Robert Dougherty, presiding. . .The petitioner (Joseph E. Garlington) alleges that a suit was instituted against him, in the Circuit Court of Chambers, by M. H. Gladden, endorsee of Julius O.Eckles ; that he af-terwards entered into a written agreement with the real plaintiff in said suit to submit the matters in controversy therein to arbitration; that at the succcccding term of the court he proved this fact to the court, and moved to strike said cause from the docket,…

Tried before the Hon. John Gill Shorter. Teial op the right op property in thirty-three bales of cotton and other personal property, between Isaac Kirksey, plaintiff in execution, and Hugh Montgomery, claimant.

Tried before the Hon. Nat. Cook. This action was commenced in May, 1852, by attachment, sued out by the appellee against the steamboat Farmer, .to recover damages for injuries done to seventy-eight bales of cotton, belonging to the plaintiff, by a collision between the steamboat and a flat-boat on which the cotton was shipped.

Tried before the Hon. Turner Reayxs, This was an action foi’ money had and received, and was commenced (by summons and complaint) on the 4th March, 1853.

Tried before tlie Hon. Alex. B. Clitherall. Held: a court of equity, which it is insisted has alone jurisdiction in such cases, will allow him a deduction for all such moneys as have been expended for the benefit of the wife. But it is apparent that a court of law is wholly inadequate to adjust the rights of the husband and wife, growing out of the trust estate of the wife.

Tried before the Hon. Alex. McKiNStry. Detinue by Franklin (4. Held: or bo wrongfully converted by strangers or third persons, the Probate Court of any county in this State wherein the same might be found would have jurisdiction to grant letters of administration, and letters of administration upon such a state of facts would be valid, and would confer upon the plaintiff the right to sue for such…

AppEAL.from the Court of Probate of Macon. Is- tbe matter of the estate of Edwin C. Walker, deceased, on tbe application of Ms executrix for a final settlement of her administration. The testator died in September, 184:7, after having executed' his last will and testament, in which he appointed Ms wife Ms executrix, and which contains the following clauses: “ Item 1.

Tried before the Hon. Nat. Cook. This action (Spencer Adams and Wife v. John Adams) was commenced in March, 1853, The complaint was in these words: “ The plaintiffs claim of the defendant twenty-five thousand dollars, due from him by account of the 5th day of July, A. I). 1851, which sum of money, with interest thereon, is now due. “And for.that whereas, heretofore, to-wit, on the 1st day of July, 1841, there was a certain matter of controversy between said defendant and one…

Heard before the Hon. James B. Clabk. This bill was filed by Lewis Tyus and Henry D. Holmes against William P. De Jarnette and James T. De Jarnette ; and its object was, to obtain participation for the complainants in certain securities which the defendants had procured from one Lewis Simpson, for whom complainants and defendants were co-sureties.

Heard before the Hon. James B. Clark. This bill was filed in April, 1852, by Daniel Buck and S. D. Hale against the appellant, as the administrator of Mrs. Margaret 0. Blevins, deceased. Held: that the property acquired and settled on appellant’s intestate, by the decree of the Chancery Court of Madison county in 1846, was such an estate vested in her as would be liable in equity to the payment of her bond contracts.

<p>Appeal from the Circuit Court of Cherokee.</p> <p>Tried before the Hon. Thomas A. Walkeb.</p> <p>This was an action of slandeb for words spoken, brought by John Stallings against John Newman; the words charged in the first count, which are alleged to hare been spoken to one William Stallings, the brother of plaintiff, are as follows: “ Your cían (meaning the clan of plaintiff’s said brother, and thereby meaning plaintiff) has murdered my (meaning defendant’s) son” ; “ John Stallings, your brother, (meaning plaintiff) murdered my (meaning defendant’s) son”; “Your brother (meaning the brother of said William Stallings, and thereby meaning plaintiff) has murdered my son,” (meaning defendant’s son, one Cornelius Newman.) In the second count the words charged were, “ I (meaning defendant) am satisfied that he (meaning plaintiff) murdered him, (meaning defendant’s son, one Cornelius Newman,) or took - him (meaning defendant's said son) to where he (meaning plaintiff) knew it would be donethereby meaning and intending to charge plaintiff with having murdered defendant’s said son, or with having been accessory to his murder.</p> <p>The defendant demurred to each count in the declaration, and his demurrer was sustained ; and thereupon plaintiff, having obtained leave to amend his declaration upon paying the costs of the term, amended each count by adding an averment that said Cornelius Newman, before the speaking of the words charged, “ had died, or had been killed in said State.” To the declaration as amended the defendant pleaded not guilty, and issue was joined on that plea.</p> <p>“ On the trial,” as the bill of exceptions.states, “the plaintiff offered proof tending to show that, in May preceding the commencement of this suit, one William Stallings, who was plaintiff's brother, and James Newman, who was defendant’s son, had some angry words, and were about closing to fight, when they were separated by persons present; that defendant then came up, a good deal excited, and said to said William Stallings, ‘ Your brother murdered my son, Cornelius Newman’ ; and proved-that plaintiff was the only brother of said William Stallings at that time. Plaintiff also proved by one Clayton, that at another time defendant said to him, that he (defendant) did not believe that plaintiff had murdered his son with his own hands, but that he had taken him where he knew it would be done. On cross-examination, this witness stated that, when this was said, witness and defendant were alone with each other, and no other person was present; that they were very friendly, and had been so for a number of years; also, a number of other things stated to him by defendant in said conversation brought out by the plaintiff; and said, also, that at the time of said conversation, he and defendant were going from defendant’s house to the house of a neighbor, to get that neighbor to read a letter which defendant said he had received relating to the death of-his son, neither witness nor defendant being .able to read; and that they did go and get said neighbor to read said letter. Plaintiff then closed.1</p> <p>“ Defendant, after having introduced the testimony of other witnesses, called said Clayton back to the stand, and by leave of the court was permitted to cross-examine him as to facts omitted ; and asked him, whether said conversation between him and defendant was not private and confidential. Plaintiff then asked the witness, whether defendant so stated such conversation to be at the time it was had ; and witness said, he did not remember that defendant did. Plaintiff then objected to the question ; but the coux-t overruled the objection, and permitted the question to be asked, and plaintiff excepted. The witness then answered, ‘ I so received it and understood it.’ Plaintiff then asked the court to exclude this answer; but the court refused- to do so, and plaintiff expepted. Plaintiff then renewed his objection to both question and answer, and asked that each should be excluded, and also that both should be excluded ; but the court overruled each objection, and permitted both to go to the jury, and the plaintiff excepted.</p> <p>“ Defendant asked said witness, also, if defendant was not much distressed at the time on account of the loss of Ms son, and whether defendant did not tell, him, in the same conversation, that his (defendant’s) wife was much distressed on the same account. Plaintiff objected to what defendant said about his wife, as being irrelevant, but the court overruled the objection ; witness answered, that defendant did tell him so, and plaintiff excepted.</p> <p>Upon this state of facts, the court charged the jury, in writing—</p> <p>1. This is an" action brought by the plaintiff to recover damages of the defendant for words spoken of and concerning the plaintiff. Slander may be defined to be, the false, wilful, and malicious speaking or publishing of another any defamatory words, charging him with being guilty of a felony or crime.</p> <p>“ 2. In this action, to authorize the plaintiff to recover, it is necessary for him to prove that the defendant, maliciously and falsely, spoke, of and concerning the plaintiff, the words charged in his declaration, or some of them ; and when plaintiff proves, to the satisfaction of the jury, that defendant, falsely and maliciously, spoke or uttered, of and concerning plaintiff, the words charged in the declaration, then he may recover such damages as he has sustained.</p> <p>“ 3. To charge one of murder by killing another is actionable and slanderous, and, if falsely and maliciously spoken, warrants a recovery of such damages as the jury may think the party has sustained, commensurate with the injury sustained.</p> <p>“4. The charge'must be falsely made; but the falsity of the accusation is to be implied until the contrary is shown.</p> <p>“ 5. Malice is essential to the support of an action for slanderous words; but if one, falsely, wrongfully, and wilfully charges another with a felony, the law will imply malice until the contrary is shown. On the part of the defendant it is insisted, that the words spoken by him were spoken under such circumstances as to rebut and repel all malice.</p> <p>“ 6. Whether this be the case or not, the jury must determine from all the proof.</p> <p>“ 7. For the purpose of rebutting and repelling the idea of malice, the defendant has the right to prove and explain all the facts and circumstances surrounding the speaking of the words; also, he has the right to show and explain all the facts and circumstances surrounding the speaking of the words in mitigation of damages.</p> <p>“ 8. Confidential communications, made in the usual course of business, or of domestic or friendly intercourse, should be liberally viewed by juries : they should look whether the words were spoken with intent to defame, or in good faith to communicate facts interesting to one of the parties.”</p> <p>To the last charge the plaintiff excepted; and he now assigns it for error, together with the other rulings of the court above stated, in sustaining the demurrer to the declaration, and in the admission of the evidence objected to.</p> <p>1. The demurrer to the declaration was improperly sustained. The words used convey a direct charge of murder, and are of themselves actionable ; and no colloquium was necessary, stating the death of the person charged to have been murdered. If he was still alive, or had come to his death in any other way than by the hand of a murderer, it was matter of defence to bo shown by the defendant. — Hall v. Montgomery, 8 Ala. 510 ; Lea and Wife v. Robertson, 1 Stew. 138 ; Holly v. Burgess, 9 Ala. 728 ; Green v. Long, 2 Caines’ R. 90; Coons v. Robinson, 3 Barb. S. C. R. 625; Cock v. Weatherby, 5 S. & M. 625 ; 1 Starkic on Slander, p. 85. The decision in Chandler v. Holloway, 4 Port. 17, does not conflict with the view here taken. In that case the charge was, that the plaintiff had “ killed” a certain person; which charge might have been true, and yet plaintiff not have been guilty of a felony.</p> <p>2. We are authorized by our statute to assign for error the judgment on the demurrer, though an amendment was allowed ; especially as the plaintiff was required, as a condition to the allowance of an amendment, to pay the cost and prove the death. — Code, § 2255, The suit, having been brought before the Code was adopted, is governed by the old law, which is more comprehensive. — Clay's Digest, p. 38.4, § 121 ; Fontaine v. Lee, 6 Ala. 889 ; Smith & G-arey v. Awbrey, 19 ib. 63.</p> <p>3. The court erred in admitting the question put to Clayton and his answer thereto, viz., that, though he did not recollect defendant's telling him that his communication was private and confidential, yet he “ so received and understood it.” It was but the statement of. the conclusion or opinion of the witness, and his answer shows that he did not know the facts upon which the Conclusion depended. The words used were actionable in themselves, and the law implies malice in their use. This malice is what the law intends to punish, and it cannot be affected by the manner in which the words were received by the person who heard them. If the fact that the charge was communicated to the witness when no other person was present, is to protect the defendant from damages, might he not repeat the same story to every citizen in the county in the same manner, and if they, though not requested, received the communication “as private and confidential”, then invoke these circumstances to protect himself against the punishment which he deserves ? The rule which allows the defendant, under the general issue, to prove all the circumstances under which the words were spoken in mitigation of damages, contains this proviso, viz., that the circumstances' offered to be proved must tend to show the absence of malice, or to rebut its presumption. For any other purpose the attending circumstances have never been admitted ; and if they do not tend to this purpose, they are incompetent. — Root v. King, 7 Oowen’s R. 613 ; Wormouth v. Cramer, 3 Wend. 395 ; Arrington v. Jones, 9 Port. 139 ; Douge v. Pearce, 13 Ala. 127. The evidence here, so far from showing the absence of malice, discloses the character of a cool, deliberate, and astute slanderer ; cunningly and secretly blackening the name of his victim in the estimation of those with whom he may most injure him, and at the same time protecting himself from exposure and punishment by leaving the impression that his communication is “private and confidential.” Such an abuse of the rule will not be tolerated.</p> <p>4. To ascertain whether the evidence was relevant, is to determine whether it tended to prove the issue joined. The issue join.ed was, whether the defendant spoke the words laid in the declaration ; with liberty to him, if he had done so, to show the absence of malice in mitigation of damages. Under this issue, the defendant was allowed to prove, that he told the witness, in the same conversation in which he used the words laid, that his wife was greatly distressed on account of the death of her son. The statement of this evidence is sufficient to show that it was illegal, and that its only effect could be to mislead the jury, by creating in their minds a false and illegitimate sympathy for the defendant. It is said, that this evidence was competent, because it was a part of a conversation called out by the plaintiff. But the rule here invoked goes no further than to allow all the conversation that is competent and legal within itself, and relevant to the issue joined, and is only illegal because made by the declarations of the party desiring to use them. — 7 Phil. Ev. 340.</p> <p>5. The eighth charge given by the court was erroneous. Privileged and confidential communications have a technical legal meaning. They form an exception to the general rule, that the law implies malice from the use of words which are actionable in themselves. What privileged and confidential communications are, is fully shown by the case of White v. Nicholls, 8 How. U. S. R. 266 ; and that case is fully sustained by the following authorities : Proser v.,Bromage, 4 Barn. & Or. 247 ; Pasley v. Freeman, 3 Term R. 51; Yanspike v. Cleyson, Cro. Eliz. 541; Jarvis v. Hatheway, 3 Johns. 180 ; O’Donaghue v. McGovern, 23 Wend. 26 ; Easley v. Moss, 9 Ala. 266 ; Sewall v. Catlin, 3 Wend. 291. To bring a case within the first exception, the author of the slander must have' acted in the bona fide discharge of a public or private duty, legal or moral, or in the prosecution of his own rights or interests. But this charge assumes, that one man may slander his neighbor to any extent; provided, he does it in a private and social way, and one of the parties feels an interest in the subject. If this be the law, no slanderer could be too vile to escape. The law, however, demands that the communication should be required for the protection of the interest of one party or the other. — Grimes v. Coyle, 6 B. Mon. 301. Conceding that such a construction could be given to this charge as to make it conform to the law, it would still be erroneous, because there was no evidence upon which to predicate it. It is evident from the proof, which is all set out in the bill of exceptions, that the jury were bound to find a verdict for the plaintiff; and that they did not do so, can only be accounted for on the supposition that they were misled by the charge, which was its necessary tendency. — Hollingsworth v. Martin, 23 Ala. 591; Carter v. Chaudron, 21 ih.'l2 ; Seawell v. Henry, 6 ib. 226 ; Toulmin v. Lesesne, 2 ib. 359 ; Cothran v. Moore, 1 ib. 423 ; Morrison v. Judge, 14 ib. 182 ; 23 ib. 655.</p> <p>1. The demurrer to the declaration ought to have been sustained. Each count was defective in not averring the death of the person ‘alleged to have been murdered. If the words, “ He is a murderer,” are in themselves actionable, and require no colloquium alleging the death of any particular person, it is because of the well-known fact that many murders have been committed, and the charge would imply that the accused was guilty of some of them. But where the charge goes further, as in this case, and specifies the particular individual alleged to have been murdered, it is no longer a general term of known legal import, but requires an additional averment of the death of that individual to make it actionable. A charge of the murder of A, who is known to be still living, is not a crime punishable by law, and cannot subject the accused to the penalties of the law against murder. In support of this position, see Chandler v. Holloway, 4 Port. 17 ; 1 Starkie on Slander, p. 79.</p> <p>2. The testimony of the witness Clayton was properly admitted. Under the plea of not guilty, the defeiidant was authorized to prove all the circumstances attending the speaking of the words in mitigation of damages. — •Williams v. Cawley, 18 Ala. 206 ; Wright v. Lindsay, 20 ib. 428. It was shown that defendant and Clayton were intimate friends of long standing ; that defendant had received a letter in relation to the death of his son ; that he and his wife were much distressed on account of their son’s supposed death ; that he and Clayton were alone, going to a neighbor’s house to get him to read the letter. All these circumstances conclusively show, that the words were spoken in private confidence, and that they emanated- from a sorely troubled heart, and were uttered in deep grief and'not in malice. The evidence objected to was not the statement of a conclusion or opinion of the witness. The witness knew, from the intimacy and friendship long subsisting between Mm and defendant, and from all the circumstances attending the communication, that it was pri-1 vate and confidential; and he .did not need to be told so by the defendant.</p> <p>3. The communication was certainly, not only private and confidential, but'also privileged. — 1 American Leading Cases, p. 180'. .The evidence was admissible, not only because the communication was private, and confidential, and privileged, but for the purpose of showing the circumstances under which the words were spoken, as tending to show the want of malice. Williams v. Cawley, and Wright v. Lindsay, supra.</p> <p>4. The same authorities show that the charge of the court on the subject of private and confidential communications was correct.</p> <p>5. Plaintiff having proved a part of the conversation between Clayton and the defendant, the latter had a right to the whole of the conversation, and all the attending circumstances.</p> <p>6. If the evidence objected to not only failed to show the want of malice, but, as the appellant insists, “ disclosed the character of a cool, deliberate, and astute slanderer,” how was the appellant injured by the admission ?</p>

Heard before the Hon. James B. ClaRK. This bill was filed in July, 1852, by Wm. Held: which two sums together made the amount expressed in the deed as its consideration ; that this was the full value of the property at that time ; that the negroes were the individual property of Wm.

Tried before the Hon. Nat. Cook. This action was commenced in March, 1854, and was founded on a promissory note, of which the following is a copy: “ $1500. On the first day of February, eighteen hundred and fifty-four, we promise to pay Henry G. Duramus fifteen hundred dollars, for value received February 1st, 1852.

Heard before the Hon. James B. ■ Clark. This bill was filed in September, 1850, by Edward Ikel-heimer against Gilbert Ozley and Barthena his wife.

<p>Appeal from the Chancery Court of Morgan.</p> <p>Heard before the Hon. E. D. Townes.</p>

<p>Appeal from the Circuit Court of Perry.</p> <p>Tried before the Hon. Nat. Cook.</p> <p>TRESPASS vi et armis by John P. Bondurant, Sarah Bon-durant, Mary E. Bondurant, James K. Armstrong and Lucy his wife, and Rebecca Bondurant, suing by her next friend John F. Bondurant, against Samuel Nelson, Joseph Gouldman, Z. B. John, Andrew Jackson, and Richard M. Booker, “to recover damages for the unlawful beating and killing by said defendants of a certain slave, named Sam, the property of the said plaintiffs.” The declaration contained two counts, the first of which, after alleging the commission of the trespass complained of and the slave’s death in consequence thereof, averred, that afterwards “ the said defendants were duly prosecuted before one Young L. Roylston, then being a justice of the peace in and for said county, for the supposed felonious killing of the said slave ; that afterwards, to-wit,” <fcc., “ the said defendants, before, and in pursuance of the order and requisition of the said justice of the peace, entered into their recognizance for their appearance at the then next term of the Circuit Court in and for said county, to be held on the fifth Monday after the fourth Monday of September, A. D. 1850, to answer the State of Alabama to the charge of committing the felony aforesaid; that afterwards, to-wit,” at said term of said Circuit Court. “ the said defendants were duly prosecuted before the grand jury of said county, for the supposed felony aforesaid, and that said grand jury did then and there diligently inquire into the said charge against the said defendants, and did then and there find and prefer no bill of indictment against the said defendants, or either of them: and plaintiffs say, that said prosecution of these defendants, upon the charge aforesaid, was then and there ended and deter-inineá, and that no bill of indictment was found, either at said term or at any other subsequent term of said court, nor any other prosecution commenced against these defendants, or either of them, for said supposed felonious killing of said slave.” In the second count the allegation is, “ that said defendants, at a term of the Circuit Court held in and for said county on the — day of-, A. D. 1850, wore then and there duly prosecuted before the grand jury for said county, for the supposed felonious killing of said slave, and that the said grand jury did then and there diligently inquire into the charge aforesaid, and did then and there find no bill of indictment therefor against said defendants, or any or either of them; and plaintiffs aver, that the said prosecution has been ended and determined, and that no bill of indictment has been preferred, or further prosecution had”, &c.</p> <p>The defendants demurred to each count in the declaration, but their demurrers were overruled, and they then filed several pleas ; the defendant Samuel Nelson pleading separately, 1st, the general issue, and three other pleas, substantially as follows:</p> <p>2. That before and at the time of the alleged trespass on the slave, this defendant owned, and had rightful and legal control, and actual possession and management of said slave, by virtue of a contract of hiring from plaintiffs for the year 1850, and that said term of hiring had not expired when said supposed trespass was committed; that the said slave ran away and escaped from him, and refused to obey his lawful and reasonable demands, and went to the plaintiffs; that said John F. Bondurant, acting for himself and his co-plaintiffs, then whipped the slave, and committed the said supposed trespass complained of in the declaration, and returned said slave to defendant; that the slave still refused to obey defendant’s lawful commands, and forcibly resisted the exercise of bis lawful authority, and endeavored with a knife and axe which he seized to cut and strike defendant and all within his reach who attempted to assist in subduing him to obedience to defendant’s reasonable commands; that defendant then whipped said slave, in consequence of his said resistance, and in self-defence, and with a whip inflicted moderate correction upon him ; that he did not inflict any cruel or unnecessary punishment, but only such moderate castigation as was absolutely necessary, and that all the whipping he inflicted was insufficient to subdue said slave.</p> <p>“ 3. That plaintiffs did not in any manner prosecute defendant in a criminal proceeding for committing said supposed felony in plaintiffs’ declaration alleged, before any justice of the peace or grand jury in and for the State of Alabama, or otherwise, or in any manner endeavor legally to try or convict this defendant criminally for said supposed felony ”, &c.</p> <p>“ 4. That plaintiffs did not prosecute this defendant before the grand jury of the county of Perry, or any other grand jury in this State, for the commission of the supposed felony, or offence, in plaintiffs’ declaration mentioned, by any criminal prosecution or otherwise, and did not endeavor to try for or convict this defendant of said supposed offence in any manner whatever.”</p> <p>The pleas filed by the other defendants severally are the same as those above stated, except that, in their second plea, they aver that they were accidentally present when their co-defendant Samuel Nelson was endeavoring to subdue said slave, and that, at his special instance ■ and request, they assisted him in overcoming the slave’s forcible resistance, and in inflicting such moderate and proper punishment as was absolutely necessary to subdue him.</p> <p>The minute entry recites, that the plaintiffs took issue upon the first plea, “ and demurred to the second, third, fourth and fifth pleas ; which demurrer, being considered by the court, was sustained as to the second and fifth pleas, and overruled as to the third and fourth.”</p> <p>It appears from the bill of exceptions, that the evidence adduced on the trial showed, in substance, the following state of facts: That the slave Sam was hired by the plaintiffs to the defendant Samuel Nelson for the year 1850, and was in his possession under the contract at the time of the alleged trespass ; that on Saturday night, in the latter part of April, the slave wanted a pass to go to his wife’s house, but Nelson told the overseer not to let him go until the next morning, as the creek was so high that it was dangerous to cross it at night; that the overseer accordingly told the boy not to go until the next morning, but the latter disobeyed his orders and went that night; that when the overseer went into the field where the slaves were at work on Monday morning, Sam picked up a club, as soon as he saw him coming, put it under his arm, and left; that he went to John F. Bondurant’s, who tied him and whipped him, inflicting about thirty blows with a handful of switches, and then sent him back to defendant Nelson by Mr. Jackson; that when the boy was brought back, Nelson took hold of him by the collar, intending to punish him, but the boy drew a knife out of his pocket, caught Nelson by the collar, and cut him with the knife in several places; that Nelson continued to struggle with him, and called to his wife to bring him a rope, but when she ran to his assistance the boy cut her in the face with the knife, and als'o attempted to stab a negro woman who ran up to her relief; that Nelson succeeded in throwing the boy, who, in falling, struck his head upon a root or stump ; that the other defendants came up to the spot while the struggle between Nelson and the boy was going on, and with their assistance the boy was finally secured and tied, and was then whipped by Nelson, Jackson, and Booker ; that between thirty and forty blows were inflicted on him with a whip, some of which cut the skin; that the boy resisted to the last, and was insolent and rebellious after he was finally turned loose.</p> <p>This whipping was inflicted on Monday morning. The boy afterwards walked about the house and yard, but complained of being sick, and did no work ; and on the Sunday morning following he suddenly died. The defendants offered evidence, tending to show that, at the time they whipped the boy, they did not know that he had been whipped by said Bondurant as above stated. A post-mortem examination of the body was made by several physicians, some of whom testified, in behalf of the plaintiffs, that the slave’s death was caused by the whipping which he had received ; while others testified, for the defendants, that the wound on the back of his head, received in his struggle with Nelson as above stated, was, of itself, sufficient to have produced death. On this point the bill of exceptions states, that “ the physicians all-concurred in the opinion, that if the death in this case was the result of the injuries the boy had received, it was impossible to attribute his death to any portion of those injuries — that it was the result of all the injuries taken together, and that all contributed their proportion; that the whipping which the boy received after being tied did not, of itself, cause his death, and that he might have died from some other cause than the injuries inflicted.”</p> <p>“ Upon this state of facts, the court charged the .jury-—</p> <p>“1. That if they believed from the testimony that Bon-durant, one of the plaintiffs, whipped the boy, and that the boy’s death was caused by that whipping alone, then these defendants would not be liable; or, if they believed that the injury which the boy received in the fall, while' engaged in conflict rvith Nelson, was the sole cause of his death, then defendants were not guilty, and could not be made liable. But if the testimony satisfied them that the defendants whipped the boy, or were present and assented to and concerned in the whipping by the other defendants, and that the boy was tied hand and foot when he received the whipping, and that the whipping which he thus received from the defendants was by itself the cause of his death, or that the whipping which the defendants gave him, in- connection with the other injuries, any or all of them, was the cause of the boy’s death, the defendants would all be liable for his value.</p> <p>“ 2. That if they believed the whipping was done by the defendants after the boy was securely tied, that Nelson had a right to whip him, and that he had a right to call assistance in punishing the boy ; yet, if the whipping thus given, either by itself or in connection with-other injuries which the boy might have receiv ed before the whipping, caused his death, defendants would be liable for his value to plaintiffs in this action.</p> <p>“ 3. That although they believed that Bondurant whipped the boy, and that he received a severe injury from the fall while engaged in conflict with Nelson ■ yet, unless they believed that one or the other or both of these injuries, of themselves, caused the death of the boy, and that the whipping by the defendants had nothing whatever to do with his death, the defendants would be liable to the plaintiffs.”</p> <p>The defendants excepted to each one of these charges, and also to others which the court subsequently gave on the request of the jury for further instructions ; and they requested several charges, which the court refused to give.</p> <p>The rulings of the court on the pleadings, the charges given, and many other things which it is unnecessary to notice, are now assigned for error.</p> <p>1. The killing of the slave being prima fade a felony, the civil remedy is merged in it. — McGrew v. Cato’s Executor, Minor’s R. 8; Morgan v. Rhodes, 1 Stew. 70; Holmes v. Middleton, 3 Port. 427; Minter v. Blackburn, 22 Ala. 613.</p> <p>2. The declaration does not set out a sufficient prosecution of the criminal offence to entitle the plaintiffs to maintain their suit. It does not aver that plaintiffs gave evidence before the grand jury, or the justice of the peace, or in any way aided in the prosecution ; nor that any witnesses were summoned before the grand jury, nor that anything was done by any person: the only averment is, that defendants “ were duly prosecuted”; and this is not enough. The owner of stolen goods can only have restitution by bringing an appeal and giving fresh suit: if guilty of neglect, he is not entitled to recover. — 2 Hawk. 241, §§55-6; ib. 238, §48; ib. 239, §§ 50 to 52; 1 Hale’s P. C. 540. Plaintiff must give evidence, or he cannot recover. — 1 Hale’s P. C. 546. Restitution was only allowed on conviction, or outlawry, or what was equivalent thereto. — 2 Hawk. 240, § 53. If a thief takes goods from two, conviction must be had for both crimes : OAvner can only have restitution on his own conviction, or what is equivalent thereto. — 1 Hale’s P. C. 545; 2 Hawk. 240, § 52. If an indictment is found, and a nolle pros, entered, a civil action does not lie. — Goddard v. Smith, 1 Salk. 21; 6 Mod. 261.</p> <p>3. The fifth plea, to which a demurrer was sustained, is . merely the plea of not guilty, drawn in strict conformity to the law. The court clearly erred in sustaining the demurrer to it.</p> <p>4. The action should have been case, instead of trespass. The slave was hired for the year, and died before the expiration of the term of hiring. The injury, if any, was to the reversionary rights of the plaintiffs, and not to their possession. 1 Chitty’s PI. 175; Campbell v. Arnold, 1 Johns. Rep. 511; Hilliard v. Dortch, 3 Hawks’ Rep. 246; Copeland v. Parker, 3 Ired. ,513; Hogan v. Carr, 6 Ala. 472. That the hirer is owner for the year, is shown by the cases of Ricks v. Dilla-hunty, 8 Port. 133, and Hogan v. Carr, sicpra.</p> <p>5. The first and second charges are severally defective, in that they assume that plaintiffs could maintain their action without proof of possession, which is essential to such an action. — Castillo v. Thompson, 9 Ala. 937; Phillips v. McGrew, 13 ib. 255.</p> <p>6. The third charge assumes, that the only fact necessary to a recovery is, that the whipping inflicted by the defendants had something to do in producing the slave’s death. All the Other evidence is withdrawn from the minds of the jury, and they are told that, if the whipping had any agency in producing the death of the slave, it was enough. All the circumstances under which the whipping was inflicted, showing that defendants were endeavoring to subdue the slave, are left out of view. The court erred in thus limiting the jury to the specific facts stated in this charge. — Holmes v. The State, 23 Ala. 16; Dill v. Camp, 22 ib. 249; Edgar v) McArn, ib. 796; Ladiga’s Heirs v. Rowland & Heifner, 21 ib. 9.</p> <p>7. The main question in the case is this: How far can a hirer, or any other person than the owner, go in endeavoring to subdue an obstinate and rebellious slave ? It is submitted, that if one has the right to control the slave, he can inflict proper, moderate punishment upon him (as chastisement, and not in anger or revenge) until he is subdued ; and if the slave is not made to yield by the application of such punishment, but continues rebellious, the hirer • (or other person having control) may continue to inflict proper and moderate punishment, and, if death ensues, he will not be responsible to the owner. There cannot be any middle ground between the liberty of the slave and his absolute, unconditional submission to his master : if the slave cannot be compelled to submit by proper and moderate punishment, the rule of the master is at an end, and.tbe slave becomes a freeman. — Dave v. The State, 22 Ala. 23. “Every effort to-extend to him positive rights, is an attempt to reconcile inherent contradictions.” — Kinloclc v. Harvey, Harper’s (S. 0.) Rep. 514. “In the very nature of things he is subject to despotism.” — Ex parte Roylston, 2 Strob. Law R. 43.</p> <p>■ 1. No action for a malicious prosecution will lie,- until a discharge or acquittal; yet, if a bill be returned “ Not a true bill this is such a discharge as will authorize the bringing of the action. — Payn v. Porter, Cro.' Jac. 490 ; White v. Port, 3 Hawks’ R. -267.</p> <p>2. If a bailee destroy the thing bailed, trespass may be supported. — 1 Chitty’s PI. 169, 172, and authorities there cited.</p> <p>3. The plaintiffs did all in their power to secure the prosecution and conviction of the defendants : they caused them'to be tried before a justice of the peace, and.to be recognized in sufficient bonds for their appearance at court; and caused the matter to be brought before the grand jury, and diligent inquiry to be made. In the very nature of things they could not testify, as the trespass was committed by a bailee on property in possession of the defendants.</p> <p>4. The killing of. the .slave by a barbarous whipping or beating, though without intention to kill, was unlawful.— Olay’s Digest, p. 413, §§ 6, 7. If any illegal act be done, the party doing it, or causing it to be done, is responsible for all consequences resulting from the act. — Burton v. McClellan, 2 Scam. 434. It is not necessary that the act should be wilful : even if it be accidental, the plaintiff is'entitled to recover. Leame v. Bray, 3 East 591, and numerous authorities there cited; Schuer v. Yeeder, 7 Blackf. 342 ; Blin v. Campbell, 14 Johns. 432.</p> <p>5. The right of Nelson to punish the slave for insubordination, and to use proper force to subdue him, is admitted ; but it is insisted, that he had no. right to kill the slave, unless in self-defence. If the slave was tied hand and foot, perfectly in the power of Nelson, and Nelson and the other defendants were in no danger ; and if they continued to whip him, while thus bound, and the slave died in consequence of such whip-. ping, then the defendants became trespassers ab initio, and are responsible. The charges of the court, tested by these principles, are correct.</p>

<p>Appeal from the Circuit Court of Conecuh.</p> <p>Tried before the Hon. Nat. Cook.</p> <p>Trial op the right op property in a yoke of oxen, between William C. Morrow, plaintiff in execution, and Jordan R. Floyd, claimant. The plaintiff’s execution was issued on a judgment for $41 17, which he had obtained against one James W. Ritchie, and was levied by a constable on the property in controversy on the 9th.August, 1854. -The claimant having executed the statutory bond, a trial was had before a justice of .the peace and a jury of seven .men, which resulted, in a verdict and judgment for the claimant; from which judgment the plaintiff appealed to the Circuit Court. On the trial in the Circuit Court, “ the plaintiff proved a levy made upon certain property in the possession of James W. Ritchie, and established its value, and then paused and the claimant then offered in evidence a mortgage, dated May 18, 1854,.together with the clerk’s endorsement showing that it was proved and recorded on 3d June, by which the said James W. Ritchie conveyed to him certain articles of personal property, which are thus described in the deed : “ Four yokes of steers, two mules, two sorrel mares, one sorrel three-year old colt, twenty-five head of. cattle, thirty head of hogs, two wagons, one set of blacksmith’s tools, household and kitchen furniture, and plantation tools, and the hire of Bill, Beck, Nathan, Lucy, and Henry, or the use of them the present year, and whatever negroes I may hire nest year to make a crop with, and the entire crop I may make this year and next.” The condition of this mortgage is, “that if the said Ritchie shall and does well and truly pay, or cause to be paid, unto the said Floyd, or his certain attorney, the full sum of $787, ($534 80 due the first of January next, and $252 20, due the first of January, 1856,) together with any debt the said Ritchie may contract with the said Floyd, during this or the next year, for the redemption of the mortgaged property, then these presents,” &c., shall be void, &c.</p> <p>“ The claimant then offered to show by evidence that the property levied on was the property with which the defendant in execution was making the crop the present year, which was mortgaged to claimant, and mentioned in the said mortgage, and offered the mortgage as evidence. To this the plaintiff objected, and the court sustained the objection to the introduction of the mortgage, both separately and in connection with the evidence offered; and thereupon the claimant excepted.”</p> <p>This ruling of the1 court is now assigned for error.</p> <p>1. The mortgage was certainly unobjectionable on its face. The mortgage of the crop growing, and to be grown, is lawful. — Mauldin, Montague & Go. v. Robinson & Caldwell, 11 Ala. 980, and authorities there cited.</p> <p>2. This mortgage gives the mortgagee the right to the possession of the property immediately.</p> <p>3. The mortgagee can claim the property • and when such claim is made, it is the duty of the execution creditor, before he can sell the property, to pay the mortgage debt. — Code, §' 2595.</p> <p>4. The oxen levied on were included in the mortgage, and it was proposed to show this ; and also to show that they were engaged in-making the crop of 1854, which was itself mortgaged to the claimant. If the oxen, themselves mortgaged, can be levied on, the defendant in execution could not make the crop, in the making of which they were engaged; and thus a double injury would be done the mortgagee — the loss of the mortgaged oxen, and of the mortgaged crop. In this view of the case, it is insisted, that even if the mortgagee could not, ordinarily, claim until the law-day of his mortgage, yet, when he has a present right, the plaintiff in execution cannot disturb it. '</p> <p>5. Section 2595 of the Code would be useless,-if the mortgagee cannot claim until there has been a forfeiture. Independently of that statute, he could claim after a forfeiture.--1P. & M. Bank v. Willis & Co., 5 Ala. 781; Hooks v. Anderson,'9 ib. 704; Magee v. Carpenter, 4 ib. 469. This statute says, that “ the mortgagee” of the property levied on,,may,, claim, &c. He is as much mortgagee before as after the forfeiture. The cases of McGregor v. Hall (3 Stew. & P.) and Purnell v. Hogan (5 ib.) were decided before the passage of the act of 1845 authorizing the mortgagee to claim ; and that uses nearly the language of the Code. To hold now that the. mortgagee cannot claim before the lawjday of his mortgage,, would be to decide that the act of 1845.and section 2595 of the Code have accomplished nothing.</p> <p>The mortgage deed offered in evidence • did not entitle the appellant to the possession of the mortgaged property untjl the first of January, 1855, the day on which" the-first debt-fell-'due. It is settled law, in this State, that the mortgagor |‘g.. entitled to the possession of the property until the law-day o-f the mortgage, unless the mortgage itself provides that the mortgagee shall take the possession before that day anuyes. P. & M. Bank v. Willis & Co., 5 Ala. 780. There is no provision in this mortgage that the mortgagee shall take the possession before the law-day ; the mortgagor had the right of possession until the first day of January, 1855, and the-equity' of redemption, and was in possession at the time of the levy; and the interest which he had was a valuable and clearly ascertained interest. The Code (§ 2455, ¶ 3) expressly subjects the equity of redemption, in either real or personal property, to execution, and provides that, when any interest less than the absolute title is sold, the purchaser is subrogated to all the rights of the defendant, and subject to all his disabilities. The defendant in execution, then, at the time of the levy,- and oven at the time of the trial, had such an interest in the property as was subject to levy. Section 2595 declares, that “ wbcn personal property, mortgaged to another, is levied on by execution, the mortgagee, or bis assignee, may discharge the mortgage debt; and then the sheriff shall sell, as well for the payment of the- mortgage debt, as for the satisfaction of the execution.” The issue, upon a trial of the right of property, is, (§ 2588,) “ that the property levied on is the property of the defendant in execution, and liable to its satisfaction.” Now all these sections must be construed together, so as to give effect to each one of them, and no construction should be placed upon them which would lead to any absurd result. The policy of the law is, to subject all property (except what is specially exempt from execution) and-all interests to the payment of the owner’s debts.</p> <p>There are many reasons why section 2595 should not be construed to allow the mortgagee to interpose a claim before the law-day. He is not bound to receive the mortgage debt, ■ nor is the mortgagor bound to pay it, until it becomes due; ■ and the mortgage may, as in this very case, be intended to secure, not only certain specific debts, but also debts that might afterwards be contracted for the purposes specified in the deed. ' In such case, it is impossible for the plaintiff in exe--Oution to know the extent of the mortgage debts ; and if he does not know the amount for which the property is thus bound, how can he know the amount he must pay, or offer to pay, for the satisfaction of the mortgage debt ? Suppose the mortgage debt is $10,000, and does not fall due for ten years, —that the mortgaged property consists of several articles each one of which is sufficient to pay the debt, and that an execution for only $50 is levied on a small portion of the property ; can it be contended that the fact of the levy makes the whole mortgage debt become due, and compels the mortgagor to pay it or be deprived of his property ? Such a conclusion would be absurd, and would entirely defeat the creditor’s right, secured to him by section 2455, to subject the equity of redemption to the payment of his execution, without paying the mortgage debt. It is true, the act of 1845 allowed the mortgagee to interpose a claim to the mortgaged property before the law-day of his deed ; but then the equity of redemption was not subject to levy and sale, unless accompanied by possession. The Code (§ 2455) subjects to levy and sale under execution an interest which was not subject by the previous law; and to hold that the right to interpose a claim, secured by section 2595, extends only to the right to put in a claim after the law-day, will harmonize the two sections, and no absurd consequences will follow. When the equity of redemption is sold before the law-day, the purchaser will be entitled to the possession until that day, and to the right of redemption ; and after the law-day the mortgagee is bound to receive the mortgage debt; which is then easily ascertained. If the mortgagee is about to sustain any loss or injury by the sale or removal of the property before the law-' day, equity can afford him ample relief now, as it could before the adoption of the Code.</p> <p>Again; the mortgage was properly rejected as evidence, because it provides for the payment of debts that might be contracted after its execution, and is therefore fraudulent and void on its face as to. execution creditors of the mortgagor.</p> <p>It is also void as to the appellee, because it mortgages property not then in existence, but to be afterwards grown.</p> <p>There was no proof, nor any offer to prove, that any debt was due from the mortgagor to the claimant; and the recitals in the deed itself are not evidence against the plaintiff in execution. — McCain v. Wood,' 4 Ala. 258.</p>

<p>1. Tile Words of a devising clause in a will cannot, ordinarily, De carried beyond ■their just legal import and legitimate meaning, by any supposed general intent to be gathered from the preamble, or introductory part of the will; and it is only in cases of doubt, where, the words of a bequ.est may,, without doing violence to the apparent intent and the rules of law, be construed more ways than one, that resort is had to the introductory part of a will to aid in . solving sueh doubt. • • ■ •</p> <p>2.' An express bequest of an estate for life negatives the intention to give the absolute property, and converts a. superaclded right of disposition into a mere power.</p> <p>3. The introductory part of a will was in these words : “I, J. D., "being at this time of sound mind, and in full possession of all my menial faculties, and knowing that I have to die, and desirous of leaving this will ”, &e., “ desire that my person and property shall, after my death, be disposed of as.follows”, &c. In the first seven clauses next succeeding, the testator gave specific bequests of slaves to his several children, giving his sons the absolute property, and limiting the interest of each daughter to a life estate “ not subject to the debts of her husband, and after her death to be equally divided among the heirs of her body”; and in the eighth clause he bequeathed to his wife several negroes, all of his household and kitchen furniture, stock of horses, cattle, &c., and plantation tools, “all of which she is to have and hold - during her natural life, and at her death 'to dispose of at her will and . pleasure.” There was no residuary clause, and no bequest over in default of disposition by the wife : Held, that the widow took but a life estate in the property bequeathed by this clause, with power to dispose of the remain-P der.; and she having died intestate, that the property went to the testator’s personal representatives, to be by Mm administered as in cases of intestacy. .</p>

<p>1. As to the distinction between guests and boarders at a hotel, and the liability of the landlord to each for the loss of goods.</p> <p>2. If a boarder at a hotel fails to take such care of his watch as a person of ordinary prudence should take, the landlord will not be responsible for its loss.</p> <p>3. On the request of the jury for further instructions, the presiding judge said, “ I perceive from your questions that your minds have been misled by a case read by defendant’s counsel ”, and then stated to them, “ that they should receive the law only from the court, — that counsel often read books to the jury to explain themselves more clearly and forcibly, but that they must not receive them as law, except so far as sanctioned by the court Held, that there was no error in these instructions.</p> <p>4. The refusal of the court to allow counsel, after the argument has been closed and the cause submitted to the jury, to explain a distinction applicable to the case, is not revisable on error : such matters properly belong' to the conduct of the cause, and are entrusted to the discretion of the presiding judge.</p> <p>6. It is error to instruct the jury, “ that the main charge was to be with therq the controlling part of the charge.”</p>

<p>Appeal from the Circuit Court of Franklin.</p> <p>Tried before the Hon. Thomas A. Walkeb.</p> <p>Detinue (under the Code) by John W. Harris against Joseph Hillman, for a slave named Burley; plea, not guilty. The plaintiff claimed under a deed of trust executed to him, as trustee, by one F. O. H. White, dated March 18, 1844, and duly recorded in Franklin county, to secure a debt due to one Oscar H. Rolf; and the defendant claimed as purchaser at sheriff’s sale, under an execution which was issued on a judgment in favor of Wiley, Banks & Co. against said White, which was rendered in March, 1852.</p> <p>“ The plaintiff proved, that he, as trustee, had advertised the negro to be sold for the payment of the debts secured by the deed, on the very day the execution was levied on him. At this stage of the trial, the defendant introduced a witness, who testified, that he (witness) was in possession of the slave at the time the suit was instituted, having hired him from the defendant, soon after his purchase of him, for the remainder of that year. The plaintiff’s attorney then moved the court for permission so to amend the complaint that it might be for damages for the conversion of the negro by the defendant, instead of a recovery of the negro himself, and insisted upon this right under the Code of Alabama; but the court overruled the motion to amend the complaint, and the plaintiff excepted.</p> <p>“ The court then charged the jury, that the plaintiff could not recover in this suit, being an action of detinue, if they were satisfied from the evidence that the negro was not in defendant’s possession at the time the suit was instituted, but had been hired out by him for the remainder of that year to another person, in whose possession the negro was ; and to this charge, also, the plaintiff excepted, and took a non-suit.”</p> <p>These two rulings of the court are now assigned for error.</p> <p>1. The court should have allowed the amendment of the complaint. The defect, (if, indeed, there was any defect at all) was one of form. The object of the suit was, to recover the negro, or his value; and the true question in the case was, who had the better title, the plaintiff as trustee under the deed, or the defendant under his purchase at sheriff’s sale. It was immaterial to both parties by what form of complaint their respective rights were determined — whether by an action for the recovery of the slave, or for damages for his conversion. A judgment against the defendant in this action would have been satisfied, if the negro was not in his possession to deliver to the sheriff, by paying his value. It is a mere technicality that requires the defendant in detinue to be in the actual possession of the slave at the commencement of the suit; and it is not required where he wrongfully got the possession himself, or wrongfully parted with it. The amendment of the complaint would not have .taken the defendant by surprise, and would not have done him any injustice ; his rights would not have been at all affected, and he would have relied on the same evidence to sustain his title in both cases. Code, §§ 2402, 2403.</p> <p>2. The charge of the court was erroneous. The case of "Walker v. Fenner, 20 Ala. 192, on which it was based, is not authority since the adoption of the Code, which declares (§ 2402) that “ all causes must be tried according to the rights of the parties, without regard to forms.” It was certainly the intention of the Legislature, in the adoption of the Code, to abolish all technicalities and forms, as far as possible, so that all causes might be determined according to the rights of the parties. But, even if Walker v. Fenner is still to be regarded as a correct decision, the principle upon which it was decided is not at all applicable to this case. There is a marked distinction between the two cases: Walker was never in possession of the negro after Fenner became entitled to it, but had parted with the possession under a contract of hiring, as he had a perfect right to do, owning a life estate which had not terminated at the time of hiring ; but the defendant in this case, knowing that plaintiff claimed title to the negro under his recorded deed, wrongfully acquired the possession in the first instance, and wrongfully parted with it; and therefore, on the authority of what is said in Walker v. Fenner, he was liable in detinue, and could not deprive plaintiff of his right to that action by hiring out the negro- to another.— Hunter v. Sevier, I Yerg. 134 ; Haley v. Rowan, 5 Humph. 301; 1 Wash. 12 ; 1 Hayw. 12 ; 1 Chi tty's PL 120 ; and other authorities cited, in R. W. Walker's brief in Walker v. Fenner, supra.</p> <p>contended, 1st, that the Code does not authorize an amendment which would change the nature of the action, any more than the previous statutes authorizing amendments in matters of form. — Aiken’s Digest, p. 265, § 44; Clay’s Digest, p. 321, § 50.</p> <p>2. That the charge of the court was fully sustained by the case of Walker v. Fenner, 20 Ala. 192.</p>

<p>1. Evidence cannot be received in the appellate court to contradict the record in the primary court; nor will this court, on error, look to the American State Papers, as published under the authority of Congress, to show a mistake in the certified copy of a public document contained in the transcript.</p> <p>2. The act of Congress of May 8,1822, (3 U. S. Stat. 699, 700,) “confirming claims to lots in Mobile,” &c., confirms only those claims “which, in the opinion of the commissioner, ought to be confirmed”; and the commissioner’s report, on which the act is based, only recommends for confirmation, of all the claims embraced in register No. 11, “ the claims to such lots as were inhabited and cultivated under the Spanish Government, or such as were built upon by permission of the Spanish authorities.” Therefore a claim to</p> <p>. a lot which was inhabited and cultivated by one of the claimant’s ancestors while Mobile was under the dominion of Groat Britain, though included in the commissioner’s report, does not come within the provisions of the act of confirmation, when it is shown that the mansion-house, with all the improvements, was burned down during the siege of Mobile by the Spaniards in 1780, and there is no proof of any subsequent inhabitation or cultivation under Spain.</p> <p>(This applies to the claims of the heirs of A. Rochon, numbered 74, 75 and 76, in the register (No. 11) of claims “ founded on private conveyances, which have passed through the office of the commandant, but which are founded, as the claimant supposes, on grants lost by time or accident.”— See Commissioner Crawford’s Report, in 3d vol. Ainer State Papers, p. 32.)</p> <p>3. The case of Doe ex dem. Parmer’s Heirs v. Eslava, reported in 9th How. U S. Rep. 421, in which a similar claim was held to be within the act of confirmation, cannot be regarded as a judicial determination of the point presented in this case, since no question was there raised as to the fact of confirmation.</p>

<p>1. The rule as to form in pleadings is not as stringent in equity as at law, but the substance of the rules is the same in each court; and it is a principle of universal application in pleading, founded on reason and good sense, that the plaintiff’s title should be stated with sufficient certainty and clearness to enable the court to see plainly that he has such a right as warrants its interference, and the defendant to be distinctly informed of the nature of the case which he is called upon to defend.</p> <p>2. Where a bill in equity was filed to protect complainant’s remainder in certain slaves, alleging that her father died in Kentucky in 182S, leaving a widow and complainant his only child; that letters of administration were granted on his estate, “ and some time afterwards dower was allotted and assigned to the said E. (the widow) in her husband's estate, and among the negroes so allotted was a negro woman” (who was particularly described in the bill, and was alleged to bo the mother of the other slaves in whom the remainder was claimed); and “ that by the statute laws of Kentucky, at the time of the decedent’s death, and the allotment of dower to the widow as aforesaid, she was only entitled to a life interest in said slave, and the estate in remainder vested in complainant”: It was held, that the bill was fatally defective, in not setting out the proceedings by which the widow’s dower was assigned, and the statute which gave the widow only a life estate in the slaves allotted, with remainder to the complainant.</p>

<p>Appeal from, tbo Circuit Court of St. Clair.</p> <p>Tried before tlie Hon. Edmund W. Pettus.</p>

<p>Appeal from tlie Circuit Court of Tuskaloosa.</p> <p>Tried before the Hon. TurNER Reavis.</p> <p>Assumpsit on tbo common money counts, by Samuel B. Ewing against Elijali W. Peck, to recover money paid by the plaintiff under a pluries execution against himself, which was issued on a judgment in favor of Peck & Clark. The money was paid to the sheriff one day after the return day of the execution, which had been levied on said Ewing’s land ; and at that time there was a motion pending to quash a previous execution on the same judgment, on account of the defendant’s discharge in bankruptcy, which motion was afterwards granted, but the court refused to order satisfaction of the judgment or a perpetual stay of execution.</p> <p>On these facts, the court charged the jury, in effect, that they should find for the defendant; and this charge is now assigned for error. .</p> <p>1. The judgment quashing the alias ji. fa., based (as it was) upon the ground that the judgment on which the fi. fa. issued was discharged by the certificate of discharge in bankruptcy, vacated and annulled the pluries ft. fa., and rendered it no protection to the defendant in retaining the money collected under it. No direct proceeding was necessary to quash the pluries execution, which was but a continuation of the first: if the first execution was vacated, or declared void, for want of vitality in the judgment on which it was founded, a subsequent one was rendered void by the same proceeding.</p> <p>2. That assumpsit -is the proper action to recover back the money paid under the execution, see the following authorities: Williams v. Simmons, 22 Ala. 425; Roebuck v. Dupuy, *7 ib. 484; Burdine v. Roper, ib. 466; Ewing v. Peck & Clark, 17 ib. 339.</p> <p>3. It cannot be successfully contended, that the payment by Ewing was voluntary. In the first place, it was paid to the sheriff in whose hands the execution was at the time, and who had under his control, in virtue thereof, property of Ewing to a sufficient amount to satisfy it. As.well might it be,said, that a criminal, condemned to death, voluntarily submitted to the sheriff’s halter, and was thereby a felo de se, as that a payment made under such circumstances was voluntary. Whether the money was paid before or after the return day of the execution, can make no difference in determining its character. The payment was made to the sheriff of a county remote from that in which the judgment was rendered, and to which the execution was returnable, and it was made only one day after the return day of the execution. The charge, under such circumstances, amounts to this: ’ That the jury cannot doubt, that Ewing knew, the precise day on which the court to which the execution was returnable commenced; that he knew the sheriff had no power to sell his property levied on under the execution in his hands — that it was functus offi-cio; and that Ewing, from some unknown motive, under no restraint whatever, but of his own free will, and understanding all the facts, paid the amount of the execution to the sheriff as the authorized agent of. Peck & Clark. As to voluntary payment, see Evans v. Governor, 18 Ala. 659 ; Rutherford v. Mclvor, 21 ib. 750.</p> <p>1. The judgment on which the pluries execution was issued was a valid judgment: it bad not been reversed, vacated, or set aside ; and consequently the said execution was lawfully issued. — Cog-burn v. Spence, 15 Ala. 549.</p> <p>2. The money sought to be recovered in this cáse was either paid under the said execution, or it was not. If paid on the execution, it cannot be recovered back, because paid on a valid execution; if not paid on the execution, then it was a voluntary payment, in satisfaction of a lawful judgment, which, ex cequo et bono, the appellant may retain — Jones v. Watkins, 1 Stew. 81; University v. Keller, 1 Ala. 406; Dupuy v. Roebuck, 7 ib. 484.</p>

<p>Appeal from the Circuit Court of Perry.</p> <p>Tried before the Hon. Geo. D. Shortridge.</p> <p>Assumpsit by the administrator of David Yarborough, deceased, against James C. Harrell and Joseph Pickens, “to recover the amount of thirteen promissory notes made by the defendants and one John Reed the 16th day of January, 1848, and payable one year after date to L. A. Weissinger, late executor of the last will and testament of said David Yarborough, in the sum of $45 each ; which notes, as a part of the unad-ministered assets of the said Yarborough's estate, were turned over by said Weissingor, as executor, to plaintiff.” The suit was commenced in January, 1850.</p> <p>The defendant Pickens separately pleaded non assumpsit, payment, fraud, failure of consideration, want of consideration, and throe other special pleas, which were as follows:</p> <p>“ 1. That he is surety for said Harrell, his co-defendant, on the several promissory notes sued on in this case, and that he, as such surety, at-, to-wit, in the county aforesaid, on the first day of February, 1844, gave notice in writing to said L. A. Weissinger, (lie being then the qualified executor of said David Yarborough,) according to the statute in such case made and provided, requiring said Weissinger, as such executor, to bring suits on said notes, against the makers thereof, as soon as the law would permit; and said defendant in fact says, that said Weissinger, executor as aforesaid, did not, in a reasonable time thereafter, and after said notes became due, commence suits on said notes, and proceed with due diligence, by the ordinary course; of law, to recover judgment for, and by execution to make, the amounts due on said notes, although said Weissinger continued for a long space of time after said notice was given, to-wit, for the space of three years, to hold the office of such executor ; and said defendant further avers, that no suit was ever brought on said notes, until this suit now pending wras instituted.”</p> <p>“ 2. That heretofore, to-wit, on the first day of February, 1844, be gaye the executor of the estate of said Yarborough verbal notice to sue, and that suits were not brought; and that defendant was thereby injured in this, to-wit, that if suits had been brought when required, the money could have been made out of his principal.”</p> <p>“ 3. Same as first, except that notice in writing was waived.”</p> <p>Issue was joined on all these pleas, and the trial resulted in a verdict and judgment for the plaintiff ; and against the defendant Ilarrell a judgment by default was taken.</p> <p>On the trial, as appears from the bill of exceptions, after the plaintiff had read in evidence the several notes on which the suit was founded, the defendant Pickens introduced one Hugh Davis as a witness, “ whose evidence was, in substance, as follows : That he was the attorney of John Y. Cawthorn, and as such had charge and control of a note for $5,000, signed by James C. Harrell and David Yarborough, for the purpose of collecting tlie same ; that he brought suit on said note, in the Circuit Court of Perry county, against said Iiar-'roll, and recovered judgment for the whole amount due thereon in November, 1843 ; that said Yarborough died, and Leonard A. "Wbissingor became his executor ; that the estate of said Yarborough was largely insolvent, and on the 15th day of August, 1844, decrees were rendered by the Orphans’ Court of said county, in favor of creditors of said estate, against said executor, for amounts severally due to them from the assets of said estate ; that said note of Cawthorn’s was presented by witness against said estate, and on said 15th August, 1844, a decree was rendered in his favor for the per-cent due from said estate on his note, amounting to the sum of $1,100, against said executor ; that said executor was anxious to make some arrangement with the creditors of said estate who had obtained decrees against him, by which some indulgence should be extended to him, lie agreeing- to convey his property to secure said creditors ; that witness, as agent or attorney of said Cawthorn, was not willing to assent to said arrangement, without some further security than that proposed by said executor; that thereupon said Weissinger agreed to place, and did place, in the hands of witness, the notes in plaintiff’s declaration mentioned, to be held as collateral security to said Cawthorn’s decree in said Orphans’ Court, witness then being, as before stated, said Cawthorn’s attorney to collect said claim ; that Harrell had paid about $1,500 on the judgment against him in the Circuit Court, which had not been credited thereon, and that it was understood and agreed between witness, Harrell and said executor, that the whole amount of said judgment should be collected by execution from said Harrell) without regarding said credit of $1,500, and that enough of the moneys collected in place of said credit should be applied in discharge of the notes mentioned in plaintiff’s declaration to satisfy the same ; that this course was agreed on and adopted as a summary method of collecting said thirteen notes ; that said executor desired to hava said notes collected in this way, so that the moneys due thereon should be ready, at a proper time, either to be distributed with the other assets of said estate, or to be used in discharging said Cawthorn’s decree in the Orphans’ Court, in the event that the same should not be paid from some other source (but there was no evidence to show that said Davis had authority to collect said notes in any other way); that this arrangement was entered into about the time, or in a short time after the date of said decree in the Orphans’ Court.</p> <p>“Said Davis further testified, that he considered himself the agent of said Leonard A. Weissinger; that after said notes were thus placed in the hands of witness, to-wit, in the fall of 1844, Alex. Graham, Esq., the attorney of said Pickens, under the written instructions of said Pickens, gave notice to said Davis, that Pickens was only the surety of Haimell on said .notes, and to bring suit on said notes against the parties thereto, and sat down at a table and commenced drawing a written notice, which said Davis waived, and said he would admit notice, and then told Graham that Pickens heed not give himself any further trouble about said notes, because an arrangement had been made by which the same would be paid without resorting to him for the money due thereon; that at the time said notice was so given, said Harrell was solvent, and so continued until the summer of 1845, and that if suits had been brought on said notes within a reasonable time after said notice was given, the money thereon could have been made out of said Harrell; that Harrell had been insolvent since the fall of 1845, and still so continued; that said notes remained in the hands of said Davis four or five years after they were so placed there.</p> <p>“ Plaintiff then introduced said Leonard A. Weissinger as a witness, who stated the following, in substance: That in the latter part of the year 1844, he was desirous of giving a deed of trust on his lands, and at that time said Cawthorn, for whom said Hugh Davis was acting as attorney, had a judgment against him as the executor of Yarborough’s estate; that he went to Davis, to see if he, as attorney for Cawthorn, would assent to his giving the deed of trust, and would remove any liens that might be in the way of his making said deed ; that Davis refused to do so, unless he as attorney and the rights of his client could be protected ; that witness then placed in the hands of Davis, as attorney for Cawthorn, the notes now sued on, as collateral security for the payment of the decree, and for that purpose only ; that Davis was not his agent, and was not acting as attorney for him in the collection of said notes, but that said notes were placed in his hands for the indemnity of his client, Cawthorn; that he was never notified to bring suit on the notes now sued on, and that if he had been notified, he would have sued on the same ; that an arrangement was made between Harrell and Davis, such as the one mentioned by Davis, but that he was not a party to the same. He further stated, that he was once present when Davis told A. Graham of the arrangement made by which the money could be realized from a sale of Harrell’s property to pay said notes, and that Graham expressed himself satisfied with the arrangement; but witness had no recollection of being present at any time when Graham had given notice to Davis for Pickens to bring suit on said notes. On cross-examination by defendant Pickens, Wcissinger deposed, that Harrell was the principal maker of said notes, and that Pickens was his surety on the same ; and that he continued executor of the estate of said Yarborough more than twelve months after said notes were so placed in the hands of said Davis.</p> <p>“All the foregoing evidence of the witness Davis was then objected to by the plaintiff, and the court sustained the objection, and excluded the same from the jury, on the ground that it was not sufficient to show such agency in Davis as that notice to him to sue on said notes would discharge said Pickens as surety on the same ; and also, that, although said Davis held said notes as collateral security to said Cawthorn’s claim, notice to him to bring' suits on said notes would not discharge said Pickens ; and to this ruling of the court said Pickens excepted.</p> <p>“ Said Pickens then offered to prove, that in a conversation between himself and said Davis, in January or February of the year 1845, that Davis, while said notes were in his possession as aforesaid, told Pickens to give himself no further uneasiness about said notes; that the notice which he had given him (Davis), through Mr. Graham, would discharge him as surety on said notes. To this evidence plaintiff also objected, and the court sustained the objection, and excluded'the same from the jury; and said defendant thereupon excepted.”</p> <p>These two rulings of the court are now assigned for error.</p> <p>1. Davis held the notes as collateral security ; and no other person, not even Weissinger himself, had the right to control them, or to collect the money due thereon, by suit or otherwise. He was, therefore, the only person to whom notice could have been given: notice to Weissinger, after he had parted with the notes, would have been futile. As to the rights of holders of collateral securities, see Trotter v. Crockett, 2 Port. 401; Russell v. Hester, 10 Ala. 586.</p> <p>2. Davis deposed, that he was Weissinger’s agent, and that he, Weissinger, and Harrell had made an arrangement to collect these notes; while Weissinger, who was introduced by plaintiff below, denied this ; and thereupon the court excluded all the evidence — that is, the court assumed the right to determine from this conflicting evidence that Davis was not the agent of Weissinger. The court should have allowed the evidence to go to the jury, and let them decide who should bo believed, and whether or not Davis was agent in fact; in this, the court clearly invaded the province of the jury. Notice to the agent is notice to the principal. — Story on Agency, § 140. Whether Davis was authorized to grant indulgence to Weis-singer, or to receive this collateral security, does not appear; but from the facts deposed to by him, it seems clear that he was Weissinger’s agent and attorney for collecting said notes, and notice to him. therefore, would be sufficient. To allow a recovery against Pickens, after what is shown to have passed between him and Davis, and between his attorney and Davis, would be to allow the perpetration of a fraud ; because he was completely lulled into security thereby, and prevented from proceeding to have the money collected from Harrell at a time when he was solvent. — See Teague v. Russell & Moore. 2 Stow. 420, whore the question is settled.</p> <p>3. The evidence .of Davis, that he “considered himself” Weissingor’s agent, was not objected to on the ground that it was illegal: it was allowed to bo introduced, and was then excluded by the court, not on the ground that it was illegal, but because it “was not sufficient” to establish the fact of agency. The appellee cannot raise a question here, which was not raised in the court below, and on which that court did not pass.</p> <p>1. The holder of collateral security for a special object has not the legal title, and is not the owner’s agent, except for the special purpose for which it was placed in his hands. Davis was not the general holder of the notes ; his agency was expressly limited to the single purpose of collecting from Harrell in the manner stated. ' He was not the agent to collect from any other party to the notes than Harrell, and from him only in a particular manner. If ho had been clothed with authority to collect generally, he would have had the right to sue; but it is .shown that he had no right to sue. and had not even the right to receive the money. Notice to the agent is only binding on the principal “ when it arises from, or is at the time connected with, the subject-matter of the agency.” — Story on Agency, §§ 126, 133, and n. 1, 140.</p> <p>2. Graham was the authorized agent of Pickens in this particular matter, and Davis explained to him the understanding and arrangement for the collection of the notes, and consequently his authority. Pickens, then, knew the extent of Davis’ authority, and cannot complain.</p> <p>3. The declarations, admissions, or acts of an agent, to bind his principal, must be in regard to the matter to which his authority relates, and then they must be part of the res gesta.- — Story on Agency, §§134-5-6, and n..l; Greenl. Ey., §§ H3, 114.</p> <p>4. The evidence was correctly ruled out, because it was illegal.</p> <p>5. The notice was clearly insufficient. Davis only waived notice in writing; and if it had been in writing, it would have been insufficient. It was not a statutory notice, and was not good as a common-law notice. — Sliehan v. Hampton, 8 Ala. 945.</p> <p>6. There was no conflict between the testimony of Weissin-ger and that of Davis: the latter did not say that he was agent, but that he “ considered himself” agent; while Weis-singer expressly says he was not. -</p> <p>I. There was no fraud on Pickens ; and, even if Davis did commit a fraud on him, this could not in any way affect the rights of Yarborough’s representatives. Weissinger could not authorize the commission of a fraud ; and if Davis committed a fraud without authority, he alone is responsible for the consequences.</p>

<p>Appeal from the Circuit Court of Lauderdale.</p> <p>Tried before the lion. Geo. D. Shobtridge.</p> <p>Trespass quabe clausum eregít by Robert M. Patton and James Oarutlicrs and Henry I). Mason, as executors of Henry Smith, deceased, against Isaac N. Grow, as well to try titles, as to recover possession of tbo east half of fractional section seven, township three, range eight, situate and being in Lauderdale county.” The only plea was, “not guilty, in short by consent.” The bill of exceptions is in these words:</p> <p>“ Upon the trial of this cause, after the plaintiffs had introduced as evidence to the jury the following will of Henry Smith, (setting it out at length,) upon motion of the defendant’s attorneys, the court charged the jury, that the said Caruthers and Mason, as the executors of Henry Smith, had not such an interest in their said testator’s real estate, by virtue of said will, as would authorize them to maintain this suit, and there was a misjoinder of the plaintiffs, as the deed under which they derived title was made to the said Patton and Henry Smith, the testator ; to which opinion of the court the plaintiffs excepted, and took a non-suit.”</p> <p>The will of said Henry Smith, as set out in the bill of exceptions, contains this clause : “I desire that my executors shall dispose of all my real and personal property, except such as is hereinafter mentioned, at such time as they may think most to the interest of my estate, and on one, two, and three years’ credit, with three good securities and mortgage on the property until final payment be made. Should it be necessary to raise money for the payment of my debts, I desire it to be borrowed until it can bo collected from sales of property.” The testator then gives several specific legacies, and after-wards follow these clauses : “ After carrying into effect the foregoing provisions of this will, I give one half of the remaining portion of my estate to my niece Mary Jane Stod-dert and my nephew Henry D. Mason, to be equally divided between them. I also give to Mary Jane Stoddert and Henry D. Mason, in trust for my niece Rebecca Dancy and Joseph D. Mason, the other half of the remainder of my estate, to be equally divided between them.”</p> <p>A deed of trust from John R. Henry and S. S. Henry to Samuel Mosely as trustee, conveying the land in controversy on certain specified trusts, and another deed from Mosely to said Patton and Henry Smith, conveying the land to them by virtue- of his power and authority as trustee, are copied into the record ; but no reference is anywhere made to them in the bill of exceptions.</p> <p>The charge of the court is the only error assigned.</p> <p>1. If the deed from Mosely to Smith and Patton is a part of the record, the error of the charge is clear. Joint tenants and parceners must join in ejectment. — 1 Chitty PI. 54, (5th Am. edit.)</p> <p>2. But if the deed is not a part of the record, still the error of the court is manifest. ■ Independent of the statute of 1889, (Clay’s Dig. p. 199, §■ 36,) the will set out in the bill of exceptions gives the executors such an interest in the testator’s real estate as would authorize them to maintain ejectment. Lucas v. Price, 4 Ala. 682 ; Dabney v. Manning, 3 Ohio 321. But without any aid from the will, the effect of the act of 1839 is such that these executors could maintain ejectment. Clay’s Dig. p. 199,-§ 36 ; Golding v. Golding, 24 Ala. 122-9.</p> <p>3. Where a bill of exceptions states enough to put the court in error, the court, if consistent with the facts, should insert enough -to set itself right; and if it fails to do so, no presumption can be indulged in support of the judgment. Davis v. The State, 17 Ala. 415 ; Sewallv. Henry, 6 Ala. 226.</p> <p>In charging the jury that the executors had not such an interest in their testator’s real estate as would enable them to maintain the suit, a manifest error was committed, and it was the duty of the court to insert matter (if consistent with the facts) to set itself right. Failing to do this, it is a case of reversal.</p> <p>The error of the second branch of the charge is even more obvious. This was that “ there was a misjoinder of plaintiffs, as the deed under which they derived title was made to the said Patton and ITenry Smith, the testator.” The court here states to the jury as a fact, that the deed under which the plaintiffs derived title was made to Patton and Smith, and instructs them, that because the deed was so made, there was a misjoinder of plaintiffs. Now taking it to be true, as here affirmed by the court, that the deed was made to Patton and Smith, that, so far from showing a misjoinder of plaintiffs, establishes that the action was properly brought by these plaintiffs — Patton and Smith’s executors.</p> <p>It is immaterial, therefore, whether the deed from Mosely to Patton and Smith is properly a part of the record, or not. The court relieved us from the necessity of making it a part of the record, by assuming, and asserting it as a fact, that the deed was made to Patton and Smith. The charge of the court is embodied in one continuous sentence, but asserting two distinct propositions. If the error of either of the propositions is shown, the court will reverse. There was error in charging that the executors had not such an interest in the testator’s real estate as would authorize them to maintain the suit. What facts are set out to correct this error ? There was error in charging that “ as the deed under which plaintiffs derived title was made to Patton and Smith, there was a misjoinder of plaintiffs.” Thus the record clearly establishes that the court erred, and contains no facts whatever to relieve it from its false position.</p> <p>Injury is presumed from error imless the record itself rebuts the presumption. — Mims v. Sturdevant, 23 Ala. 664-1 ; Fri-erson v. Frierson, 21 Ala. 549 ; ib. 558 ; Dave v. The State, 22 Ala. 25. When the charge excepted to is affirmative, and given by the court of its own motion, or at the instance of the other party, it is unnecessary to set out the evidence on which the charge is founded. — Kirksey v. Jones, 1 Ala. 622 ; Peden v. Moore, 1 S. & P. 11; Ware v. Dudley, 16 Ala. 142.</p> <p>The distinction is, that if an exception is taken to the refusal to charge, the bill of exceptions must embrace enough of the evidence to show that the charge asked was not abstract; but if the charge actually given be excepted to as mistaking the law, no part of the evidence need be stated. Peden v. Moore, 1 S. & P. 11; Tharp v. The State, 15 Ala. 149 ; Ware v. Dudley, 16 Ala. 142. If an affirmative charge is erroneous as a proposition of law, the case must be reversed, as this court will intend that it was not abstract. — Moore v. The State, 18 Ala. 534 ; Ware v. Dudley, 16 Ala. 142.</p> <p>The charge given would mislead any jury. It was, in effect, instructing them that the plaintiffs, as executors, had not such an interest in the testator’s real estate as would authorize them to bring ejectment, and that because the deed was made to Patton and Smith there was a fatal misjoinder. See Cothran v. Bell, 1 Ala. 423 ; Bckfordv. Wood, 5 ib. 136 ; Sherrod v. Rhodes, 5 ib. 84. Besides, in the latter part of the charge the court assumed facts, and thereby invaded the province of the jury. — Phillips v. McGraw, 13 Ala. 255.</p> <p>1. The charge given was abstract, and will not be revised on error. The bill of exceptions fails to set out any evidence that shows the pertinency of the- charge to the case before the jury. This court will not revise such a charge on error. Ogburn v. Ogburn, 2 Port. 126 ; ITollinger v. Smith, 4 Ala. 366.</p> <p>2. But it is submitted, that the charge, construing the bill of exceptions most strongly against the appellants, is correct. It contains two propositions : 1st, “ that the said Caruthers and Mason, as the executors of Henry Smith, had not such an interest in their said testator’s real estate, by virtue of said will, as authorized them to maintain this suit” ; and, 2d, “ that there was a misjoinder of the plaintiffs, as the deed under which they derived title was made to the said Patton and Henry Smith, the testator.” The first proposition contained in the charge is the correct construction of the testator’s will: the will does not give the executors any such interest as authorizes them to maintain ejectment for their testator’s real estate. That power is given them by the statute. — Clay’s Digest, p. 199, § 36 ; Golding v. Golding, 24 Ala. 129 ; Harkins v. Pope, 10 ib. 493. The proposition is correct, also, in another point of view. The right of the executors to recover real estate of their testator, in ejectment, depends upon their right as executors to the rents and profits of the real estate in controversy. — Golding v. Golding, supra. Now, in order to reverse for error in this branch of the charge, the court must presume that the executors were entitled to the rents of the real estate, — that there had been no transfer by the testator of the right to the rents of the real estate in question, and that the estate was solvent. In Golding v. Golding, supra, this court presumed that the estate was solvent; but that presumption n 'is acted upon, not to reverse, but to sustain the action of the primary court.</p> <p>3. The second proposition of the charge, iii the aspect in which the record presents it to the court, is also correct. Why hare the appellants suppressed the evidence of the estate of their testator in the land in controversy ? Is it not because its production would show the charge of the court to be correct ? Under these circumstances, this court -will indulge all presumptions which are not contradicted by the record to sustain the judgment below. — Morrison v. Morrison, 3 Stew. 444. If necessary to sustain the judgment, this court will presume that the deed to Patton and Smith gave them an estate as trustees, which, by operation of law, survived to Patton alone.</p>

<p>1. When the defendant pleads not guilty to an action (under the Code) on an .open account for services rendered, and judgment is rendered against him on the verdict of the jury, he cannot avail himself of the mispleading on error.</p> <p>2. Husband and wife may join, under the Code (§ 2131) as at common law, to recover upon a promise made to the wifp for services rendered by her during coverture.</p> <p>3. Section 2490 of the Code applies only to all partial payments, or attempts to avoid the statute of limitations by subsequent undertakings, made since the Code went into effect, but not to verbal promises made previous to that time.</p> <p>4. In assumpsit by husband and wife, to recover on a promise to pay for services rendered by the wife to the defendant’s intestate in his lifetime, it was shown that the intestate, on one occasion, wont to defendant’s house to get the latter to write his will, but did not find him at home ; that on his return he met witness, and, after telling' him' the object of his visit, stated, 1 that ho was satisfied he would not live long, and' never expected to see B. (defendant; again; that he wanted him (witness) to bear witness that he wished B. to pay Mrs H. (plaintiff’s wife) (!500 for the services she had rendered him’: Held, that this admission was not in the nature of a testamentary bequest, but was a distinct acknowledgment of the services rendered by the wife, and a positive direction to the defendant to pay the specified sum in consideration of them, and was sufficient (before the adoption of the Code) to remove the bar of the statute of limitations.</p> <p>5. When husband and wife sue jointly for services rendered by the wife during coverture, her admissions of payment cannot be received in evidcuco against them.</p>

Tried before the Hon. Alex. B. OlitheRALL. This was an application for a mandamus to the appellee, as county treasurer of Marion county, to compel him to pay to the petitioners (who were Allen Haley, John M. Frederick, John T. Sanders, and Willian Warren) the sum of $500, which he was directed to pay to them by the act of the Legislature, approved February 2, 1850, entitled “An act for the relief of the securities of John Douglass, late clerk of the Circuit Court of Marion…

Heard before the Hon. James B. ClaeK. This bill was filed by the appellants, to foreclose a mortgage on certain town lots in the city of 'Wetumpka, executed to them by one William B. Maxwell on the 29th November, 1845, to secure the payment of a promissory note which he owed them for $416 38, dated October 25,1845 ; and also to set aside a deed of trust dated January 28, 1845, by which the said Maxwell conveyed the same lots to one Allen Light-foot, as trustee for his wife.

<p>1. Although the deed of an infant is voidable only, and not absolutely void, yet he will not be required, in a court of law, to refund the purchase money, when it is not shown to have been in his possession, either actually or constructively, after he attained his majority, as a pre-requisite to au avoidance of his deed by suit for the land.</p> <p>2. After a recovery of the land by the infant, in such case, the purchaser may recover back the money by suit, especially where he was induced to enter into the contract by the infant’s false representation that he was of full age.</p> <p>3. It seems, however, that if the infant, after ho arrives at full age,. is possessed of the consideration paid him, whether it be property, money, or choses in action, and either disposes of it so that ho cannot restore it, or retains it for an unreasonable length of time, this amounts to an affirmance of his contract.</p>

<p>1. The statute which provides that, “ in all actions to recover damages for torts, the plaintiff shall recover no more costs than damages where the damages do not exceed five dollars, unless the presiding judge shall certify that greater damages should in justice have been awarded,” (Clay’s Digest, p. 316, § 25,) does not apply to an action of debt on an attachment bond to recover damages for the wrongful and vexatious suing out of the attachment.</p> <p>2. The overruling of a motion to nonsuit the plaintiff, when the verdict in his favor is for a less sum than the court can take cognizance of, on the ground that his affidavit does not comply with the requisitions of the statute, (Clay’s Digest, p. 325, § 75,) is not revisable on error.</p>

<p>1. An administratrix having- received money, “to which plaintiff was entitled as one of the distributees of the estate, all the other distributees having received their respective shares”, let her husband have some of it, at his request, to lend to another person ; her husband loaned it out accordingly, taking a note payable to himself, which he “ deposited with his said wife for the use and benefit of plaintiff, that she might got the money”; after his death, his executors demanded and received from her the said note and the money on hand, with notice that they belonged to plaintiff and not to their testator, and subsequently collected the money due on the note: Held, that plaintiif might maintain an action at law against them for the money thus received and collected, and that satisfaction of the judgment recovered against them would be an extinguishment of the debt due from the administratrix.</p>

<p>Appeal from tbe Court of Probate of Tuskaloosa.</p>

<p>Appeal from the Circuit Court of Tuskaloosa.</p> <p>Tried before the Hon. G-eo. D. Shortridge.</p> <p>This action was commenced before a justice of the peace, by Ransom Covey agailist Shandy Jones, to recover $36 50, the amount of an open account for boarding one Stephen. Walker at defendant’s request. The justice having rendered judgment against the plaintiff, the latter removed the cause, by certiorari, to the Circuit Court, and there filed his statement in the usual form. The defendant filed a special plea in answer to the complaint, in which he averred, that said Stephen Walker and others had previously instituted a suit against one Richard Field, under the statute, to recover their freedom; that pending the suit, the court made an order (which is set out at length in the plea) requiring the plaintiffs therein to enter into the statutory recognizance ; that pursuant to this ordeji, defendant and others became bail for said Walker ; that afterwards defendant, for himself and his co-sureties, surrendered said Walker to the sheriff, in discharge of their said bond, and the sheriff received him, and committed Mm to jail; that plaintiff's claim now sued on is for keeping said Walker in jail after said sumender, but before the trial of his said suit for freedom; and that on the trial of the said petition, the plaintiffs therein recovered a judgment declaring them to bo free. The plaintiff demurred to this plea, and his demurrer was sustained; and this ruling of the court is now assigned for error.</p>

<p>1. When an execution from the probate court against an executor or administrator has been returned “ no property found”, an execution may issue against him and his sureties, (Code, § 1922,) but the court is not authorized to render a judgment against the sureties on such return ; and if one of the sureties die before the return of “no property” against his principal, the summary statutory remedy entirely fails as to him, and cannot be revived by scire facias,</p>

Tried before the Hon. Johu Gill SHORTER. Trespass ON the case by John McGar against R. k R. Williams, for that (as alleged in the first count) the said defendants, who were partners and tinners by trade, and carried on the business of putting tin roofs on houses, being desirous to procure plaintiff to employ them to cover a certain building which he was then erecting in the city of Montgomery, with a tin roof, at a stipulated price, wrongfully contriving and intending to…

<p>Appeal from the Circuit Court of Perry.</p> <p>Tried before the Hon. Thos. A. Walker.</p> <p>Trespass ON the case by William McTyer against William Hendrix, William S. Hanna, and John C. Steele, as common carriers, to recover damages for defendants’ breach of duty and contract in failing to deliver to the consignees fifteen bales of cotton, which were shipped by plaintiff on board their flat-boat, and were consigned to McDowell, Withers & Co. at Mobile. The defendants severally pleaded not guilty, in short by consent.</p> <p>On the trial, as the plaintiff’s bill of exceptions shows, “ the plaintiff offered in evidence a bill of lading, or receipt, which was in the following words and figures, to-wit :</p> <p>‘ Received of W. McTyer fifteen bales of- cotton, in good order, which I promise to deliver in the port of Mobile, in like condition, to McDowell, Withers & Co., at $1 per bale ; marked thus, W. McTyer; 2 bales of the lot marked W. McTyer the bagging and rope excepted, and J. K. April 6, 1852’. (Signed) ‘J. C. Steele’.</p> <p>“ Plaintiff then offered evidence, tending to show that he-had placed on a flat-boat fifteen bales of cotton at the time and place mentioned in the bill of lading and declaration ; that the boat had been run on a log or snag in the Oahaba river, so as to submerge and ruin the cotton, and cause a total loss to the owner. He also offered testimony, tending to show that the said boat was purchased by John C. Steele, but at the time of the purchase he directed the builder to call on Hendrix and Hanna, the other defendants, for his pay ; also, that before the delivery of the boat Hendrix called upon the builder, and said to him, that he wanted the boat upon which plaintiff’s cotton was shipped, and also another boat, as soon the river should rise; and it was proved, also, that said Hanna did afterwards pay for said boat. Plaintiff then offered to prove as a circumstance in the case, that said John C. Steele, at the time of giving said receipt, or bill of lading, was and had been notoriously insolvent; but to the introduction of this proof of Steele’s insolvency, the other defendants (who alone, appeared and defended the suit) objected, and the court excluded the same; and to this plaintiff excepted.</p> <p>“ Plaintiff proposed to prove, by parol, in order to connect said Hendrix and Hanna with said Steele and bill of lading, and show them liable to plaintiff, that said Steele was the chief officer on said boat, to-wit, pilot or captain thereof; and then proposed to prove, by one 0. Belcher, that he (Belcher) had been for many years a captain, or pilot, on a flat running said Cababa river, and that it was a part of the captain or pilot’s duty to give receipts and bills of lading for freight, such as was given in this case for freight received on said boat; and that said boat was, and was known to be, the property of said Hendrix and Hanna. To this evidence said Hendrix and Hanna objected, on the ground that no liability could be fixed on them by such parol evidence, after plaintiff had introduced and shown said bill of lading for the cotton sued for. The court sustained the objection, so far as said Hendrix and Hanna were concerned, but allowed it to go to the jury as against Steele; and to this ruling of the court plaintiff excepted.</p> <p>“Plaintiff then proposed to prove, by parol, that said Hendrix and Hanna had, as partners, been engaged for several years as common carriers in the transportation of cotton on said river ; that notwithstanding said Steele had, in some instances, given a receipt, or bill of lading, to others for cotton shipped on the same boat, yet said Hendrix and Hanna, in other instances, had given receipts and bills of lading in their own names to others, for cotton shipped on the same boat. This evidence, on the objection of said Hendrix and Hanna, the court ruled inadmissible, and to this plaintiff excepted.</p> <p>“ Plaintiff further offered to prove, by parol, with a view, in connection with other facts, to show the liability of said Hendrix and Hanna as common carriers, and in order to connect said Hendrix and Hanna with said Steele in his liability to plaintiff,' — -that acts of ownership were exercised over said boat by said Hendrix and Hanna, both before and after the same was wrecked, in the presence of plaintiff and others; that they received freight for the same, and gave bills of lading therefor in their own names. This evidence, also, on the objection of said Hendrix and Hanna, was held inadmissible, and plaintiff excepted.</p> <p>“ The court then charged the jury, that the bill of lading sued on in this case, was of a two-fold character — first, a receipt ; and, secondly, a contract to carry and deliver cotton in Mobile ; that, as a receipt, it may be explained or contradicted by proof; but, as a contract for carrying and delivering cotton, <fec., it cannot be contradicted by parol proof; and therefore the parol evidence offered by plaintiff, to connect said Hendrix and Hanna with said bill of lading, and thus to fix a liability on them, was inadmissible as to them, and therefore excluded, but admissible and good as to Steele. To this charge, also, plaintiff excepted.”</p> <p>In consequence of these rulings of the court, the plaintiff was forced to take a nonsuit; which he now moves to set aside, and assigns all the rulings of the court against him for error,</p> <p>1. The insolvency of Steele was proper evidence for several purposes: 1st, to show the relationship of the parties ; 2d, to show that the contract, although signed by him alone, must have been signed as master, or as agent for himself and his co-partners ; 3d, to rebut the presumption that credit was given to him alone.</p> <p>2. The owners of a vessel, employed in the transportation of merchandise and produce, are responsible on a bill of lading signed as this was, when it is shown that the person signing it is master of the vessel; and this may be shown by such proof as was proposed in this case. — Story on Contracts, p. 287, §§ 368, 370, 371; Story on Bailments, p. 326, §§ 506, 507 ; May v. Babcock, 4 Ohio 334; Deford v. Seinour, 1 Smith’s E. 325, cited in 10 U. S. Digest, p. 208, § 313.</p> <p>3. The testimony excluded tended to show a joint ownership in the boat; and as the owners would be liable under such a contract as here shown, the testimony ought not to have been excluded. The question was not whether it was sufficient, but whether it was legal. If the defendants were partners in the boat, or in the transportation of cotton on the boat, as alleged, then they Would be liable on a contract in regard to the' business of the partnership, though made by one partner in his own name. — Story on Partnership, §§ 103 to 101; Collyer on Partnership, § 886; Owings & Co. v. Trotter & Scott, 1 Bibb’s R. 157.</p> <p>4. The court was clearly in error, in supposing that this evidence tended to vary or contradict the bill of lading. It had no such effect. — Story on Agency, (4th ed.) § 270, n. 3.</p> <p>5. If the cotton had been delivered in Mobile, the defendants could have recovered from plaintiff the price for the freight, by showing that Steele was their agent, and received the cotton for them, although ho signed the receipt for it in his own name. — Edwards v. Golding, 20 Vermont R. 30. If so, plaintiff can enforce the contract against them, by making the same proof, as the contract must be mutual.</p> <p>1. The rule is inflexible, that if a written instrument is perfect and complete in itself, parol evidence cannot be received to add another term to it, or change its legal effect. West & West v. Kelly’s Executors, 19 Ala. 353 ; Walker v. Clay & Olay, 21 ib. 797. It is conceded, that receipts for the payment of money, or in discharge of a contract, may be explained by parol proof; but there is a broad distinction between receipts of that nature, and the bill of lading in this case, which was the foundation of the action. So far from being the discharge of a contract, th# writing was the commencement of the liability. This distinction was taken in Smith v. Brown, 3 Hawks’ R.. 581, a case very similar to this; and it was there expressly decided, that parol evidence is not admissible to vary or contradict the writing. To the same effect are the following authorities: 1 Greenl. Ev. § 305 ; Barrett v. Rogers, 7 Mass. 297 ; Benjamin v. Sinclair, 1 Bail. 174; May v. Babcock, 4 Ohio R. 334. The plaintiff proceeded upon the contract as valid and subsisting ; while it is only by repudiating it as fraudulent that he is permitted to vary or contradict it by parol proof. — Dixon v. Barclay, 22 Ala. 380.</p> <p>2. The insolvency of Steele had nothing to do with the liability of the other defendants. — Donley v. Camp, 22 Ala. 666.</p> <p>3. The evidence of Belcher, as to the length of time he had been on the river, was entirely irrelevant. The object in offering it probably was, to prove a custom; but the proof does not pretend to show a custom, and, even if it did, it could have nothing to do with the construction of a contract.</p> <p>4. The fact that Hendrix and Hanna had given receipts, in their own names, for cotton shipped on the same boat, can throw no light on the bill of lading in this case. Each case must stand or fall by itself. Hendrix and Hanna might well be the owners of the boat, and still in no way liable.' — Sims & Scott v. Jones, 6 Port. 138. Steele, Hendrix, and Hanna might each bind himself separately as a common carrier, although all were on the same boat. — McClure v. Bichardson, 1 Bice’s B. 215 ; 1 Sup. U. S. Digest, p. 245, § 101.</p> <p>5. Even if Steele was a partner with the other defendants, he had the right to bind himself individually; and the bill of lading clearly shows, on its face, that he intended to bind himself only.</p>

<p>Appeal from the Circuit Court of Greene.</p> <p>Tried before the Hon. Geo. D. Shobtbidge.</p> <p>This action was commenced by Sears & Walker against Robert Harkness, before a justice of. tbe peace, in March, 1854, to recover “ damages in a sum not exceeding fifty dollars for trespass.” The defendant took an appeal from the justice's judgment to the Circuit Court, where another trial was had, which resulted in another judgment against him under the rulings of- the court.</p> <p>The bill of exceptions shows these facts : “ On the trial, there was evidence offered by the defendant, conducing to show that one McCullough was the owner of ten acres of land in the vicinity of the town of Clinton, on which he resided and carried on his trade as a cabinet workman; that for the purpose of assisting him in his trade and work, about five years since, he erected on said lot a turning-lathe, which was propelled by horse power, and a large cog-wheel, let into the ground, on a block of wood, upon a pivot, and a band-wheel connected with said turning-lathe and cabinet shop, all like the running gear of a gin, and used by said McCullough alone for the purpose of his trade; that in July, 1853, said McCullough sold said lot of land to plaintiffs, and conveyed the same to them by deed, without specifying any part of said machinery, lathe, and cog-wheel. There was evidence, also, conducing to show that said McCullough remained on said land until December, 1853, and, as he was about to remove from the State, he sold said turning-lathe, cog-wheel, and band-wheel to one P. Freeman, for fifteen dollars; and that the defendant, as the agent of said McCullough, delivered and hauled said turning-lathe, cog-wheel, and band-wheel to said Freeman, a few days after said sale.</p> <p>“ The court charged the jury, that if they believed from the evidence that said cog-wheel was, attached to the said lot ■of land, in the ordinary way, on a pivot resting on a block of wood in the ground, in the same manner in which the running gear of a gin is attached, then the said cog-wheel was a fixture, and passed -to the plaintiffs by said deed ; to which charge the defendant excepted, and asked the court to charge the jury, that under the state of facts in evidence, as above recited, the said cog-wheel was not a fixture, and did not pass with the freehold under said deed ; which charge the court refused, and the defendant excepted.”</p> <p>The charge given, and the refusal to charge as requested, are now assigned for error.</p> <p>A fixture is defined by Chitty to be, “ a personal chattel annexed to the freehold.” — Chitty on Contracts, p. 314. 1. It must be fixed or fastened in or to the ground — actually annexed. — Walker v. Sherman, 20 Wend. 636. 2. It must be adapted or appropriated to the use or enjoyment of the realty to which it is annexed. — Ib.; Teaif v. Hewitt, 1 Ohio St. R. 530; Amos &F. on Fixtures, p. 11. 3. The intention of the party making the annexation may be inferred, 1st, from the nature of the article; 2d, from the structure and mode of annexation ; and, 3d, from the use or purpose for which it is made. — Teaff v. Hewitt, supra.</p> <p>Applying these criteria to the case at bar, it will appear that the cog-wheel was not a fixture, and did not pass with the land. 1. It was slightly attached or set on a pivot, and could be removed without injury to the freehold. 2. It was not adapted to the use or enjoyment of the freehold, as the running gear of a gin on a cotton plantation, as in the case of McDaniel v. Moody, 3 Stew. 314. 3. It was erected and used by McCullough for the purpose of his trade, as shown by the structure and mode of application.</p> <p>Machinery let into caps, or blocks of timber, have been held removable. — Chitty on Contracts, p. 321; Davis v. Jones, 3 B. & A. 165; Lawton v. Lawton, 3 Atk. 14; 5 Den. R. 33T.</p> <p>The taking away of the cog-wheel, even if it were a fixture, could only be sued for by action of trespass quare clausum fregit, and not by suit before a justice. — Sturgis v. Warren, 11 Vermont R. 433.</p> <p>It is to be observed, that the question here arises between vendor and vendee, and not between landlord and tenant; and therefore the rule in the latter class of cases has no application, and the cases are not authority.</p> <p>For the appellees it is insisted, that the cog-wheel has all the requisites necessary to constitute a fixture — that is. 1st, it was annexed to the realty; 2d, it was stationary in its character, and appropriated to the use and purposes of the work-shop, and that part of the realty with which it was connected ; and, 3d, the person who placed the wheel on the land was, at the time, the owner of the fee, and it must therefore be intended that the annexation was made as a permanent accession to the freehold, and so intended by McCullough when he made it. — See Teaff v. Hewitt, 1 Ohio St. R. 52240, and cases there cited.</p> <p>Upon a careful examination of all the authorities, these two propositions will be found true: 1st. That the relaxation of the rule in relation to fixtures, in favor of trade, applies only as between landlord and tenant, and not as between vendor and vendee, nor between heir and executor. 2d. The motive power of machinery, which is stationary in its nature, as between vendor and vendee, is always regarded as a fixture, and passes with the freehold ; whilst the machinery propelled is sometimes regarded as a fixture, and sometimes as a personal chattel, dependent upon the manner in which it is annexed or attached to the realty. — McDaniel v. Moody. 3 Stew. 314; Hancock v. Jordan, 1 Ala. 450; Miller v. Plumb, 6 Cowen’s R. 606 ; Sparks v. The State Bank, 7 Blackf. 471; Colegrave v. Dias Santos, 2 Barn. & Cress. 76 ; 9 Serg. & Low. 30; Goddard v. Chase, 7 Mass. 433; Noble v. Bosworth, 19 Pick. 314 ; Walker v. Sherman, 20 Wend. 636; Elwes v. Maw, 3 East’s R. 37; Powell and Wife v. Monson & Brim-field Man. Co., 3 Mason’s R. 459; Union Bank v. Emerson, 15 Mass. 159 ; Vorhis v. Freeman, 2 Watts & Serg. 116 ; Pyle v. Pennock, ib. 391; Winslow v. Merchants’ Ins. Co., 4 Mete. 306 ; Despatch Lino of Packets v. Bellamy Man. Co., 12 N. II. 154 ;' Farrar v. Stackpole, 6 Greenl. 154.</p>

<p>Appeal from the City Court of Mobile.</p> <p>Tried before the Hon. Alex. McKiNstry.</p> <p>This case was submitted to the decision of the court below, as appears from the bill of exceptions, on the following agreed statement of facts:</p> <p>“ The plaintiffs (B. F. Rowland & Co.) regularly obtained their judgment, before a magistrate, against the defendant (H. C. Benje), for $21 26, besides costs. The money not being made under execution on said judgment, a garnishment process was issued, in due form, and in strict accordance with the law, which garnishment was regularly served upon the city of Mobile. Said city, by its mayor, duly appeared, and objected to make answer in the case, on the ground that said city could not be garnisheed, under any circumstances, in such a case ; and, also, upon the further ground, that said Benje was one of the police guard of said city, and that, his wages could not bo thus attached, for reasons of public policy, in such a case. These objections on the part of the city were overruled by the magistrate, and said garnishee was ordered to answer. Said city then made answer, by its mayor, and under its proper seal, ‘ that said Benje is one of the members of the police guard of said city, and is paid $66 66 for his services monthly, payable at the end of each month; that at the end of the present month, said city will be indebted to said Benje, on account of his said wages, in the sum of §66 66.' This answer was made in July, 1858, and the magistrate rendered judgment thereon against said garnishees, which judgment was in due form, and for the correct amount dne on said original judgment. From this judgment said garnishees appealed to said City Court, and now insist upon their exemption from said garnishment process. Whereupon the court determined, that said city was subject to the process of garnishment, and that the facts disclosed by the answer would not protect the salary of said Benje from the attachment : to which determination of the court said city excepted.”</p> <p>The rendition of judgment against the appellants, on the facts disclosed by the record, is now assigned for error.</p> <p>1. Can a corporation aggregate be garnisheed under our laws? Section 2516 of the Code provides, that an attachment may be executed by summoning “ any person indebted, or having in his possession, or under his control, property belonging to the defendant.” Section 2517 provides, that “ such person” shall appear, and answer on oath, according to the terms of the citation, and may, if required by the plaintiff, be compelled to answer orally in the presence of the court. If these acts stood alone, there could be but little doubt on the question; but the first section of the Code says, that the word person shall include corporations as well as natural persons. This latter statute can have no effect in all that great variety of cases where the word person is used, and where a corporation by reason of its artificial character could not be reached ; in other cases, corporations were included without the act. — See Ang. & Ames on Corp. 195-6. Being, therefore, affirmative of the common law only, it must be construed to mean this : “ That in all cases where the word person is used in the Code, it shall include corporations, except where such a construction would be inconsistent with the terms of the particular act wherein the word is used. For instance, it could not be included in-any of those sections relative to partnerships, because two corporations cannot form a partnership (Angelí & Ames, p. BIB; 7 Wend. 412); nor to any penal statutes (Angelí & Ames, p. 313); nor to section 2175 or 2651 of the Code. Long before the adoption of the Code our court, in two cases (1 Ala. 396, and 4 ib. 753), suggested that there was a doubt whether a corporation aggregate could be garnisheed. Both these cases assert, that a corporation can only answer under its seal; yet the act says, the garnishee must answer “ under oath”, and if he fails to do so, unless the plaintiff waives it, a judgment may go against the garnishee. The acts also say, that the plaintiff may require an oral answer “ in open court”; yet a corporation cannot be brought into court,- nor can it answer by agent, because the cases last referred to declare that not even the answer of the cashier on oath will in any way bind a bank. Is it not clear, therefore, that the word persons, as used in these garnishment acts, do not (and were not intended to) include corporations?</p> <p>The right of garnishment is a new and strictly statutory remedy, unknown to the common law ; and to give it such a construction as would include corporations, would be to add to the act a new provision, which the Legislature intentionally left out; for it is to be presumed they were aware of the decisions above referred to, and the law of corporations as it stood at the time of passing the Code. — 1 Paine;s C. C. R. 400; 3 Mass. 288. It is true, the plaintiff may waive the answer being under oath, and may waive the person’s being present in court; but suppose he rather chose not to waive it, and to take his judgment for default ? But besides, the defendant in execution is to be concluded by the answer (Code, § 2563; 9 Port. 390) ; lie too has the right to demand the oath, and has, perhaps, too much at stake to be satisfied with a mere statement under seal, for which no one’s conscience is liable. In 2d Mass. R. 37, the right to garnishee a corporation, (under their trustee process,) under acts similar to ours, was fully and ably argued by counsel; but the court, without hearing counsel for the defendant, unanimously decided, that a corporation aggregate could not be summoned as trustee, and that effects and credits in the hands of a corporation could not be so attached. — Lidderdale v. Montrose, 3 Durn.-& E., top p. 441; 3 ib. 367 (682); 1 H. Black. 627 ; 3 Bos. & P. 324; 7 R. 413; Story on Contracts, § 577.</p> <p>2. But does not public policy protect the wages of a police officer from attachment ? Money due from a government or state is thus guarded for the benefit of the public. The law says, the state must be-permittcd to select its own officers, from any condition or position in society, and cannot be made subject to the power of individual creditors to drive their selections from service when they choose ; nor can the creditor be permitted to paralyze the energy or in any way cripple the efficiency of a state’s officer by taking from him the means afforded by the state which gives bread and clothing to himself and family, — Searg. on Att. 62, 140 ; also,' 12 Ala. 597. The government of the city is a part of the state government. It is the exercise of a portion of the state sovereignty, and should in like manner be upheld by the same public policy.</p> <p>3. Is the answer sufficient to authorize the attachment of the defendant’s salary? On this point, the attention of the court is called to the difference between the answer of the garnishee as set out in the record, and as it is stated in the bill of exceptions. The statements are very different, but in either view it does not warrant a judgment. On looking at sections 16, 24 and 44 of the charter, it will be seen that any of the officers of the corporation may be removed at any time, and that the compensation ceases on removal. All public officers have, also, the right to resign at their pleasure. The answer, as stated in the bill of exceptions, says, “ there was nothing due until the end of the then month. The answer itself, copied in the record, says, “ an order had been given by Benje for tlic salary of the then month, but there would be the S66 G6 for the next succeeding month, provided he did not resign, or was discharged.” The court will see, therefore, there was no contract, or absolute indebtedness depending only upon time. But whether there would ever be an indebtedness, depended upon two uncertainties : 1st, whether the mayor would remove him ; and, 2d, whether he did not voluntarily resign ; the latter of which would very certainly happen, if the pay was garnisheed beforehand. Besides, if the city could be garnisheed for future dues, and a judgment rendered, they would then, even if the debtor was willing to continue, be driven in self-defence to keep in their employ many times worthless and inefficient officers, because they were already bound to pay ; or, if an officer found himself about to be discharged for ignorance, inefficiency, or corruption, he could, by obtaining a garnishment to be levied, thus secure his place for the next year, or at least the salary for the year. This would be to subvert both law and justice. Sound policy requires that the corporation should not only have the free right to remove, but also to adjust accounts at any time ; to deduct for lost time, breach of duty and losses by wilful omissions or default of duty. In this way, such men as form the city police can be made to feel a proper responsibility to the city, and soberness and energy in their profession insured. Again, the corporate authorities, who vote the pay, have the right to examine and pass upon the accounts to be paid. The public has a right to demand, that this privilege be awarded to them. While the mayor can approve or not of ordinances granting compensation, he has not the right to order payments made without the concurrence of the other co-ordinate branches of the city government; and yet, if the mayor can be constantly summoned to answer process of garnishments, and his statements alone of sums are to be entered up as absolute judgments against the city, then as to these particulars, the law and authority of the other branches of the city legislature is by the judgment of the justice of the peace repealed. — 3 Mass. 288 ; 8 ib. 247 ; 7 ib. 259-60.</p>

Tried before the Hon. C. W, Rapier. Detinue by Thomas G-aillard against Charles M. Chamberlain, for a slave named Adam. The defendant pleaded non detinet, and two special pleas which were, in substance, as follows : 2.

<p>Appeal from the Circuit Court of Talladega.</p> <p>Tried before the Hon. John Gill Shorter.</p> <p>■The appellant, having obtained a judgment against James A. Fowler, summoned the appellee by process of garnishment as Fowler’s debtor; and the garnishee answered in writing as follows: “ Some time in the early part of the year -1851, James A. Fowler, by himself, and through Alexander White, Esq., furnished me with one hundred and fifty dollars in money, or thereabouts, and gave me (his note for ?) fifty-one dollars. In consideration of said money and note, executed to me on the 24th February, 1851, I agreed to enter in the land-office at Lebanon, Ala., for the said Fowler, one quarter? section of land, and subsequently filed in said land-office a land-warrant calling for one hundred and sixty acres to be located for said Fowler ; but one of the officers having doubts whether the warrant could be located in the shape desired by Fowler, the location was delayed for a time, and since I was garnisheed by Lundie I have made no efforts to locate the same. In addition to the fifty-one dollar note on said Fowler, he owes Bradford & Lawler thirty dollars, with interest since January, 1839, and some cost on the same. I know of no other effects of said Fowler, nor do I know of any one who owes him anything.” On this answer the court discharged the garnishee, and its judgment is now assigned for error.</p> <p>On the state of facts disclosed by the answer, the plaintiff was entitled to a judgment against the garnishee. There is no question that Bradford had two hundred-dollars in money belonging to Fowler at the time the garnishment was served, and that Fowler could, at any time before he entered the land, have notified him not to enter it: and on such notice being given, he could have sued Bradford for the money, if the latter failed to re-pay'it. What Fowler could do of his own volition, the law empowers his creditor to do by service of the garnishment. A proceeding by garnishment is the institution of a suit by the attaching creditor, and is governed by the general rules applicable to other suits. It is a legal remedy, and is to be so treated. — 5 Ala. 442 ; 8 ib. 516. There is no ground for saying that this is a mere agreement to enter the land. The answer does not bear such a construction. It shows that Fowler furnished the money with which Bradford was to enter the land. It does not show a valid and binding contract, by which Bradford acquired a right or title to the money, and Fowler only the benefit of a contract with him. As the land is not yet entered, whose is the money ? is it not Fowler’s, unless the garnishment holds it ? — Mann v. Buford, 3 Ala. 312.</p> <p>contended, that the answer showed that Bradford owed Fowler nothing, and was only bound to the performance of his agreement to enter the land, upon the discharge of which he had already entered when the garnishment was served ; and they cited Blair v. Rhodes, 5 Ala. 648 ; Mims v. Parker & Coffman, 1 ib. 422.</p>

<p>1. An. objection to the competency of a witness, on the ground of interest, must be distinctly made at the first opportunity, and cannot be subsequently ■ raised ; and if the party, in accepting service of interrogatories, stipulates that he thereby waives no objection to their legality, pertinency, relevancy, or competency”, this will not enable him afterwards to object to the competency of the witness on account of interest.</p> <p>2. If the holder of anote, having bound himself by written contract to account for it to the owner, recovers judgment on it in his own name, and by private agreement witli the sheriff, after sale under execution, takes the property at the purchaser’s bid, he thereby becomes liable to the owner of the note for the amount in money, and cannot raise objections to the sale of which the defendant in execution might avail himself; and if the amibunt was lessened by expenses, court costs, &c., the anus of proving it devolves on him.</p> <p>3. Nor is he entitled to a deduction for expenses incurred by him in pursuing the defendant in execution, who had secretly left the county, taking his property with him, when such expenses arc not shown to have been necessarily incurred, nor to have been such as the bailor would be bound to pay. -</p> <p>4. Evidence of a demand of specie by the sheriff, by the direction of the plaintiff in execution, after the property had been bid off, and of the purchaser’s offer to pay in current bank-notes with the difference between them and specie, is admissible as part of the res gestas.</p> <p>5. A general objection to an entire deposition, when a portion of it contains legal evidence, may be overruled.</p>

This was an application by Rempson R. Hardy, the appellant, to have admitted to probate,-as the last will and testament of Jesse Hardy, deceased, a paper of which the following is a copy: “ State of Alabama, ) Know all men by these presents, Dallas County. f that I, Jesse Hardy, for the natural love and affection that I have for my son Rempson Hardy, and for and in consideration of the sum of one dollar to me in hand paid, at and before the delivery of these presents, by the…

Tried before the Hon. Nat. CooK. This action (which was commenced in August, 1853) was brought by Martha P. Plamilton, wife of William Hamilton, against Thomas M. Williams, to recover $1490 72… Held: that this doctrine is applicable in a suit like the present, against a judge of probate, for omitting to take security from a guardian. — Phelps v. Sill, 1 Day’s Conn. Hep. 315.

. 'Lsr the matter of the last will and testament of Jacob Hoffman, deceased, which was propounded for probate by the ap-pellees, and contested by the appellant. Held: that the plaintiff could not recover, because the statute of Geo. IY, adopted in May, 1828, required the promise to be in writing. — 9 Bacon’s Abr. 222. That statute only regulated the manner in which subsequent promises should be proved ; it was a question of evidence.

Heard before the Hon. Wade Keyes. Tris bill was filed by Mrs. Louisa S. Owen against Hope H. Slatter and Mrs. Ann P. Holly, on the 7th February, 1853, to obtain an assignment of her dower in certain city lots in Mobile, of which George W. Owen, her deceased.husband, died seized and possessed, and which were sold on the 15tli February, 1841, under an order of the Orphans’ Court of Mobile, on the application of complainant as administra-trix of her deceased husband ; and at…

<p>1. Under the Code (§ 2570), in a suit commenced by attachment, a judgment by default cannot be taken on the first day of the term to which the writ is returnable ; .but if the suit is brought in either the Circuit or City Court of Mobile, and the attachment is levied more than twenty days before its return, judgment by default may be taken on the first day of the term under the provisions of the act of February 17, 1854, (Pamphlet Acts 1853-4, p. 91, § 6.)</p> <p>2. And if the attachment is not sued out against a non-resident, but is levied on the defendant’s goods and chattels, and no garnishee is summoned, there is no law requiring any notice to be given.</p> <p>3. A complaint in the form prescribed by the Code (p. 551), “ on promissory note, by payee against maker”, is sufficient to support a judgment by default 5 and its legal effect is the same as if it contained an averment, in express terms, that the note was payable to the plaintiff.</p> <p>4. When the judgment entry recites, that “ the plaintiff came by attorney, and the defendant having failed to file his plea within the time prescribed by law, it is considered by the court, that the plaintiff have and recover of the defendant”, &c., “the damages due by the two promissory notes declared on”, it will be presumed on error, that the complaint shown by the record (although the day on which it was filed is not endorsed on it, as required by section 2247 of the Code) was filed before the rendition of the judgment by default.</p>

IN the matter of the petition of Daniel Johnson, as trustee of Sarah Johnson, against Mrs. Phebe Hamlet, as executrix of Robert Hamlet, deceased, who was the father of said Sarah, for distribution of a lapsed legacy. The only clauses of the testator’s will which have any bearing on the questions presented in the.case, are the third and the twelfth, which are as follows: “ 3.

Tried before the Hon. John Gill Shorter. Action of covenant by Eckles & Brown against Hirain Carter, to recover damages for defendant’s breach of warranty of the soundness of a slave. The bill of sale was under seal, and the consideration was expressed in it to be eight hundred and fifty dollars.

Tried before the Hon. Nat. Coos. . IN the matter of William P. Molett’s application for the establishment of a public road, which was contested by thu appellant, M. J. Keenan.

<p>1. Defendant, being indebted to plaintiff by open account for goods sold and delivered, gave him a note for a larger amount on a third person, and agreed to take up the difference in goods at cash value as he might want them, and received part of the goods the next day; but plaintiff, discovering a few days afterwards that the maker of the note was insolvent, thereupon tendered back the note, and demanded a rescission of the contract, and then brought suit on the account for goods sold, &c.; to which defendant pleaded payment and set-off: Held, that if plaintiff received the note in payment of the account, without any fraud or misrepresentation on the part of defendant to induce him so to take it, then the delivery of the note operated a payment and extinguishment of the account, and plaintiff became bound to defendant for goods at cash value to the amount of the difference between the note and account; but that this liability for goods, coupled with the disaffirmance of the contract on the part of plaintiff, could not be used as a set-off in this suit, so as to entitle defendant to judgment for the difference between the note and account.</p>

C. W. Rapjeb. TROVER by Martha L. Boyles, Solomon Boyles, and Thomas J. Boyles, infants suing by their next friend, against Lewis Johnson, for tbe conversion of two slaves named Eliza and Mary ; plea, not guilty, in short by consent.

<p>BbeoR to the Chancery Court at Greenville.</p> <p>Heard before the Hon. J. W. Lesesne.</p> <p>The original bill in this case was filed in September, 1846, and the defendant answered in February, 1847. At the July term, 1847, on motion of the defendant, the bill was dismissed for want of prosecution, under .the thirty-third rule of chancery practice. In March, 1848, in vacation, the complainant hied a petition, asking that the order of dismissal might be set aside, and the canse be reinstated on the docket; and at the ensuing term the chancellor made an order granting the prayer of the petition — setting aside the previous order of dismissal, and reinstating the cause, on the payment of all costs; lf>'and from this order the defendant, by his solicitors, in open court, prays an appeal to the Supreme Court, which is granted accordingly.” The bill was subsequently amended, and the cause proceeded regularly to a hearing: depositions were taken by each party, service of interrogatories accepted, and cross-interrogatories filed ; and the defendant made motions to suppress some of the complainant’s depositions. The record does not show when the cause was submitted for final decree, nor when the final decree was rendered : it only shows that, on final hearing, the chancellor revoked and annulled the order reinstating the cause, and dismissed the bill, with costs; holding that the cause could not be reinstated after the close of the term at which it had been dismissed for want of prosecution.</p> <p>The decree of the chancellor is now assigned for error.</p> <p>1. When a bill is dismissed for the failure of complainant to appear at the time it is called for hearing, under the thirty-third rule of chancery practice, the power of the court to grant an application to set aside such default and dismissal is not limited or confined to the term at which such dismissal was made. Any other construction would render the last sentence of that rule nugatory ; for, without any such provision as contained in that sentence, the court could grant such application at the term at which the dismissal was made. The only object of that provision in the rule was, to make it clear that the court could grant such application at a subsequent term. — Read v. Walker, 18 Ala. 333.</p> <p>2. The court having the power to set aside the dismissal at a subsequent term, and having exercised that power by setting aside the dismissal and restoring the cause, it was erroneous to dismiss it at a subsequent term, in the manner and for the cause shown in the record. — State Bank v. Johnson & Jeffries, 9 Ala. 361.</p> <p>3. The cause was finally dismissed, not for want of equity, nor for staleness of the demánd, but solely because the court thought it had not power to set aside the default and dismissal. The court being thus “ very erroneously influenced ” to dismiss the bill finally, the dismissal must be reversed. — G-rimshaw v. Walker, 12 Ala. 101; Oullum v. Casey & Go.. 1 ib. 351 ; Shackelford v. King, 13 ib. 435.</p> <p>4. Even if there was irregularity in setting aside the dismissal, the defendant, waived all right to make objection thereto, — which waiver is evidenced in many modes in the record. — Hair v. Moody; 9 Ala. Rep.; Lampley v. Beavers, 25 ib. 534.</p> <p>The cause was first rightfully dismissed, under the thirty-third rule of chancery practice ; the complainant not having appeared, either in person, or by counsel. The application to set aside this default should have been made at the same term at which the bill was dismissed. The “ timely application”, contemplated by the thirty-third rule, is an application within the term at which the default is made. The cause having been dismissed at a regular term, the court had no power over it at a subsequent term, and could not reinstate it. — Oullum -v. Oasoy & Oo., 1 Ala. 353.</p> <p>Courts of chancery have distinct terms for the transaction of business, as well as courts of law; and it is an established principle in this State, that a court cannot grant a new trial after the close of the term at which the trial was had, unless a motion for a new trial was made and continued at that term. Fitzpatrick v. Hill, 9 Ala.-784; Barr v. White, 2 Port. 342.</p> <p>At the regular term at which the cause was reinstated, the defendant objected to the irregular and illegal action of the court, by praying an appeal to the Supreme Court. What else could he do ? It is said, that he afterwards crossed interrogatories, &c., without protest. But was he required, every time anything' had to be done after the cause had been reinstated against his consent' and objection, to do itunder protest? It would be nonsensical to require this, He appealed, or craved an appeal, from the decision reinstating' the cause, which shows that he objected fo the action of the court. The cause having been reinstated without his consent, he was not required to abandon it, nor to do everything afterwards under protest. What course could he have pursued to have the error of the chancellor corrected ? It was an error of which he could avail himself only after final decree. Hair v. Moody, 9 Ala. 399, is wholly unlike this case, and it cannot be sustained on principle, if the exception to the ruling of the court was properly taken and presented.</p> <p>Note et Reporter. — The arguments of counsel on the points touching the merits of the case are omitted, because those points are left undecided by the court.</p>

Tried before the Hon. EdmüNd W. Pettus. Trespass vi et armis by Alex.

Tried before the Hon. John Gill Shorter. In this action (Henry T. Dawson v. Cyrus Cotton) the writ was in assumpsit, and the declaration in debt, on a promissory note of which the following is a copy :— “ $442. Twenty days after date I promise to pay to James Thompson, or order, four hundred and forty-two dollars, value received. Given under my hand and seal, this 22d day of December, A. D. 1835.

Tried before the Hon. Thos. A. Walker. Detinue by the appellants against John E. Snodgrass, for a slave named Alick; plea, non detinet, in short by consent. Held: that this was an executory devise to the grandchildren and the surviving daughters, and not a remainder, tvliicñ be barred by the first taker.

<p>Appeal from the Chancery Court of Tallapoosa.</p> <p>Heard before the Hon. James B. OlaRk,</p>

<p>Appeal from the Circuit Court of Dallas.</p> <p>Tried before the Hon. Nat. Cook.</p> <p>Assumpsit by Fail & Patterson against Bowen Bennett, on a promissory note for $2,100, which was shown to have been given for the purchase money of three slaves sold by plaintiffs to defendant; pleas, non assumpsit, fraud, failure of consideration, and want of consideration.</p> <p>On the trial, after the plaintiffs had offered in evidence the note declared on, the defendant proved that it was given for the purchase money of three slaves — Mary Jane, Nancy, and Judy — sold by plaintiffs to him at one time on 28th January, 1852, and as one entire contract, and then introduced the bill of sale, containing warranties of soundness and title. The circumstances under which the sale was made, as deposed to by the witnesses, are stated at length in the bill of exceptions, but they present no point for consideration in this court. On the part of defendant, Doctors Biddle, Howell, Robbins, and Hutchinson were examined as witnesses, and they testified, substantially, that they had examined each one of the negroes a few weeks after they had went into the defendant’s possesssion ; that Mary Jane had syphilis, Nancy chronic gonorrhea, and Judy umbilical hernia ; that their professional opinion, founded on their personal examination of the slaves, was, that each of these diseases must have existed from a period anterior to the sale to the defendants ; and that the slaves, at the time of their examination, stated such to be the fact. On the part of the plaintiffs, Dr. Mathoson testified, that he examined the slaves about six weeks after the sale, at the request of the plaintiffs, and his professional opinion was, that Mary Jane and Nancy had not been diseased more than three weeks, and that Judy’s disease was not a bad case of hernia, but was curable, and did not greatly impair her value ; and Doctors Troy and Bythwood, who were examined for the plaintiffs, stated that they did not concur with Dr. Biddle, from the symptoms which he described, as to the character and degree of Mary Jane’s disease. There was other evidence on the question of unsoundness, which it is unnecessary to detail.</p> <p>“ The plaintiffs offered to prove, also, by one Quartcmus, that within a few weeks past, and since the last term of this court, he saw the. slave Mary Jane at the house of one J. H. Campbell in this county; and that she appeared to be healthy. The witness was a mechanic, who had been working on said Campbell’s house. The defendant objected to the introduction of witness for that purpose, but the court overruled the objection, and the witness testified to the facts stated ; and to this the defendant excepted.”</p> <p>The defendant offered in evidence a letter written by himself to plaintiffs, which was produced by them on notice, and also their reply thereto, of which the following are copies:—</p> <p>“ Mr. D. A. Patterson & J. Eail: — The man you sent the note to me, that was given for the negroes, the next week after I purchased them, I told him to tell you that the negroes were unsound. I apprise you that one of them is under the doctor’s attention, and he declares her unsoundness of some years’ standing. I do not believe he can cure her. I tender you the negroes back before more expense occurs.</p> <p>“ March 1,1852. . “Bowen Bennett.”</p> <p>“ Camden, March 1, 1852.</p> <p>“ Mr. Bowen Bennett: Dear Sir — We received your note, stating that the negroes we sold you were not sound. You should have tendered the negroes sooner; but if you can prove that there was any latent or hidden disease, yon can certainly make us accountable. We have a bill of sale, that will make us safe. You should have delivered the negroes before this late hour.</p> <p>“ Yours, D. A. W. Patterson & J. Eail.”</p> <p>The defendant introduced one Burns as a witness, who testified, “ that on the 14th or 15th February, 1852, he was sent by plaintiff Patterson, with the note, to Bowen Bennett, to collect it, or get a payment upon it; that Patterson told him to get the money on the note, or, if he could not get the whole of it, to get him to pay four hundred dollars on it, as he was pressed for money, but that if he would do neither, then to offer to take back the negroes, and if Bennett would not do that, then to stay and board it out with him ; that when Bennett refused to pay the money, he did offer to take the negroes back ; that he made this offer but once, and did not press it, and he could not state what reply Bennett made at that time to the proposition ; that Bennett refused to pay the note, and gave as a reason for not doing it that the negroes were unsound, and told him to tell Patterson so, and that he would.not pay the note, and for him (Patterson) to come and take his negroes away. He stated, also, that he communicated this to Patterson on the same 'day, who was then within about sis miles of Bennett’s residence surveying, and thatPatterson did not deny the unsoundness. It was further in proof, that the plaintiffs and the defendant lived from twelve to fifteen miles apart, and that the Alabama river intervened.</p> <p>“ The plaintiffs, in reply, offered to show by one Kane, that after this suit was brought and pending, and another one by defendant on plaintiffs’ warranty, plaintiffs offered to give defendant the note sued on, and to take the negroes back, and that defendant refused to do so. Defendant objected to this, but the court allowed the witness to be examined, and he so testified ; and defendant excepted.</p> <p>“ The plaintiffs next offered in evidence the record of the undetermined suit of defendant against them on their warranty, and the defendant objected; but the court overruled the objection, and allowed the record to go to the jury, and the defendant excepted.</p> <p>“ The foregoing evidence being before the jury, the court, among other things, charged the jury, that the foregoing letters in proof did not show a rescission of the contract of purchase ; to which charge the defendant excepted.</p> <p>“ The court charged the jury, also, that the testimony of physicians was matter of opinion merely, but that they should be controlled by the weight of evidence, and the superior conviction it made upon their minds ; to which charge, also, the defendant excepted.”</p> <p>The defendant asked three charges, which were severally refused, and to each refusal he excepted. They were—</p> <p>“ 1. That defendant’s letter to plaintiffs, dated March 1,1852, and plaintiffs’ reply of the same date, taken together, make a rescission of the contract, if defendant’s said letter and tender was written and made within a reasonable time, and the slaves were unsound at the time of the purchase, and plaintiffs knew it.</p> <p>“ 2. That if the note sued on was procured by fraud, plaintiffs cannot recover, whether there was an offer to return the slaves or not.</p> <p>“ 3. That no offer to re-deliver the slaves was necessary, after plaintiffs’ refusal on the first of March, 1852, to receive them back on defendant’s tender by letter, as the law does not require an unnecessary act to be done-”</p> <p>The rulings of the court on the evidence, the charges given, and the refusals to charge as requested, are now assigned for error.</p> <p>1. On the question of fraud in the original contract, see Kennedy v. Kennedy, 2 Ala. 571; Huckabee v. Albritton, 10 ib. 657 ; Milton v. Rowland, 11 ib. 732; Swift v. Fitz-hug'h, 9 Port. 39 ; Forrest v. Camp, 16 Ala. 642; Carter v. Castleberry, 5 ib. ; Stokes v. Jones, 21 ib. 731; 5 Cowen’s R. 67 ; 1 Smedes & M. Oh. 375; 4 Coke’s R. 786 ; 15 Johns. 121 ; Andrews v. Montgomery, 19 ib. 164 ; Ross v. Lane, 3 Smedes & M. 695 ; Barringer v. Nosbit, 1 ib. 22 ; Dill v. Camp, 22 Ala. 249.</p> <p>2. That the facts showed a rescission of the contract, sec Burnett v. Stanton & Pollard, 2 Ala. R. 182 ; Duckworth v. Johnson, 8 ib. 309 ; Whitehurst v. Boyd, 8 ib. 375 ; Martin v. Chapman, 6 Port. 344 ; Magee v. Billingsley, 3 Ala. 679 ; Dill v. Camp, 22 ib. 249 ; Milton v. Rowland, 11 ib. 732.</p> <p>3. That the court erred in its charge upon the testimony of the physicians, see 7 Wend. 78 ; 1 McNally on Evidence, pp. 329-35 ; 8 Mass. Rep. 371; 9 ib. 225 ; 5 Miller’s R. 275 ; Washington v. Colo, 6 Ala. 212 ; Patton & Burgen v. Rambo, 20 ib. 487 ; Tullís v. Kidd, 12 ib. 648; 1 Phil. Ev. 290 ; 1 Greene’s R. 232.</p> <p>4. That the court erred in admitting the testimony of Kane, see Jackson ex dem. Gulden v. Rich, 7 Johns. 193.</p> <p>cited the following authorities : 1. To show that there was no rescission of the contract, Burnett v. Stanton & Pollard, 2 Ala. 181; Barton v. Stewart, 3 Wend. 236 ; Dill v. Camp, 22 Ala. 259.</p> <p>2. To show that the charge of the court was correct, which asserted that the testimony of physicians was matter of opinion merely, 1 Greenleaf’s Ev., §§ 440, 441, and notes.</p>

<p>1. "When the equity of a bill rests upon the existence of a particular fact, that fact must be clearly alleged in the bill: an allegation that complainant “ is advised and believes,” is not sufficient.</p> <p>2, A bill was filed, setting up an equitable estoppel, to perpetually enjoin the defendant from asserting his legal title to a tract of land which he had verbally sold to one W., who sold to S., who sold to complainant. It alleged, that W. agreed to sell to S. if defendant would sanction the sale and recognize his verbal contract, and that they together called on him to ascertain whether he would do so; that defendant replied, that he did recognize the validity of his contract, that ho was willing that W. might sell to S., and that he would look to the former for the payment of his purchase money. The answer admitted those facts, but denied that defendant thereby intended to surrender his right to look to the land as a security for tho purchase money, or to do more than recognize tho validity of his verbal contract: Held, that the injunction was properly dissolved on the coming in of this answer, as the facts admitted by it were not sufficient to create an estoppel.</p>

<p>Appeal from the Circuit Court of Macon.</p> <p>Tried before the Hon. Nat. Coos.</p> <p>TRESPASS on the case by McLaren, Ragan & Co., late partners and proprietors of a steam saw-mill, against Joseph W. Bradford, to recover damages sustained by plaintiffs by reason of defendant’s violation and breach of his written contract, dated Macon county, June 11,1841, of which the following is a copy :</p> <p>“ I hereby sell to McLaren, Ragan & Co. all the timber owned by me, suitable for saw logs, on the place on which I now live, being three hundred and twenty acres, not including what is now under fence, in consideration of a note of seventy, five dollars, of this date given to me by them.”</p> <p>“ Joseph Bradford.”</p> <p>The declaration set out this agreement, and averred, that the said defendant thereby also intended to grant to the plaintiffs the right and privilege, without lot, hindrance, or molestation, of cutting and carrying away said timber from said land, and all other rights and privileges incident and necessary to the Ml use and enjoyment thereof; that the said defendant, not regarding his said contract, but contriving &c. to injure plaintiffs in that behalf, did not, nor ever would, in accordance with the tenor and effect and necessary import of said contract, suffer or permit said plaintiffs to cut and carry away all the timber on said land suitable for saw logs, and for sawing up into lumber, but, on the contrary, afterwards, and before said plaintiffs had cut and carried away all of said timber suitable for sawing up into lumber, to-wit, on the 11th November, 1847, exhibited his bill in chancery, andpro-cured an injunction, restraining and enjoining said plaintiffs until the November term, 1850, of said court, (when said injunction was dissolved, and said bill was dismissed,) from cutting down, or carrying away from said land, any other timber than such large heart-pine trees as were suitable for sawing up into rail-road railing, or string pieces ; and plaintiffs aver, that by reason of the premises they were wrongfully deprived of the use, benefit, and advantage of sawing up into lumber twenty-five hundred trees, then and there standing on said land, and which were of great value, &c.; and in consequence thereof said trees were wholly lost to plaintiffs ; to their damage, &c.</p> <p>The court sustained a demurrer to the declaration, and this is now assigned for error.</p> <p>contended that the declaration was sufficient, and cited Myers v. Gilbert, 18 Ala. 469.</p> <p>contended, 1st, that the procuring of the injunction was no legal breach or violation of defendant’s contract; that a resort to the courts of the country, whenever their aid is deemed necessary, is the right of every citizen; and that for the abuse of this right by defendant, plaintiffs had two remedies — an action on the injunction bond, and an action on the case for the damages which they had sustained. — Marshall v. Betner, 19 Ala. 347.</p> <p>2. That if the injury complained of would support an action op the contract, then the declaration must aver malice, and negative the ground on which the injunction was sued out.— Spivey v. McG-ehce, 21 Ala. 4-20; 1 Bac. Abr. 142 ; Tiller v. Shearer, 20 Ala. 527.</p>

Tried before the Hon. Lyman Gibbons. Assumpsit by Jonathan Emanuel and Charles Walshe, as assignees of Sidney Smith and David Stodder, trustees of the Planters and Merchants’ Bank of Mobile, against John B. Savage, John Darrington and James Savage, on a promissory note, of which, with the endorsement thereon, the following is a copy ; “ Macon, May 10, 1847. “ $3468 23.

<p>Appeal from the Circuit Court of Lawrence.</p> <p>Tried before the Hon. Thos. A. Walker.</p> <p>Trespass ON the case by Claiborne G-. Appleton against John Moore, “ to recover damages sustained by plaintiff, growing out of certain acts performed by plaintiff, in the capacity of agent for defendant, in the year 1846, in dispossessing and removing one Aaron B. Quinby from a certain tract of land lying in Lawrence county, Alabama, and known as the place on which said defendant now keeps a toll-gate; which act of dispossessing and removing said Quinby was done at the special instance and request of defendant, and while plaintiff was acting as his agent.”</p> <p>The declaration contained two counts ; the first alleging, in substance, these facts: That defendant, in 1846, constituted and appointed plaintiff his agent, generally and specially, to do and perform such acts and things as he might request plaintiff to do during the year 1846: that afterwards, and while plaintiff was acting in the capacity of such agent for defendant, and at defendant’s special instance and request, and as such agent, “ plaintiff took possession of certain goods and chattels, to-wit,” &c.; “ which goods and chattels, defendant then, and before plaintiff so took possession of them as such agent, stated and represented to plaintiff, wore the property of said defendant, and to the possession of which defendant represented to plaintiff that he (defendant) was then entitled, which statements and representations plaintiff then believed and acted on in so taking possession of said goods and chattels that afterwards, in March, 1847, one Aaron B. Quinby instituted suit against plaintiff and defendant, in the Circuit Court of Lawrence, to recover damages sustained by Mm in consequence of the taking possession of said goods and chattels by plaintiff; that after certain proceedings were regularly had in said suit, a judgment was rendered against plaintiff and defendant, in favor of said Quin-by’s administrator, for $200 damages, besides costs, which amounted to $435 58 ; that an execution was duly issued on this judgment, on which plaintiff was compelled to pay $325 97; that in addition to this, plaintiff was obliged to pay out large sums of money in defending said suit, attorneys’ fees, &c.; whereby plaintiff has been greatly damaged, &c.</p> <p>The second count, after alleging the agency as above stated, averred that plaintiff, “ while acting in the capacity of such agent for defendant, and as such agent, and at defendant’s special instance and request, and by his direction, and on his behalf, purchased from one Sarah Quinby certain goods and chattels,” &c.; “ that afterwards, and after said purchase was made, defendant ratified the same, and proceeded to and did take possession of said goods and chattels that Aaron B. Quinby afterwards instituted suit against plaintiff, to recover damages for the taking away of said goods and chattels ; that judgment was rendered in said suit, on which execution issued, and- plaintiff was compelled to pay, &c.; whereby he has sustained great damage, &c.</p> <p>The defendant demurred to each count in the declaration, but his demurrer was overruled, and he then pleaded not guilty, with leave to give in evidence any special matter of defence. The defendant also demurred to the plaintiff’s evidence, but the court held it sufficient, and judgment was rendered accordingly.</p> <p>The rulings of the court are now assigned for error.</p> <p>1. If two persons jointly commit a tort, and the injured party recovers damages, and one of them pays the demand, there is no implied promise in law to contribute by the other. Chitty on Contracts, p. 400 (m.); Black & Manning v. Oliver, 1 Ala. 450 ; St. John v. St. John’s Church, 15 Barb. S. Ct. R. 352 ; 4 U. S. Digest, p. 67, •§§ 214, -215. No express promise is averred in either count of the declaration, and none is shown in the evidence.</p> <p>2. The second count is demurrable, also, because it shows clearly par delictum, in which potior esi conditio defendcntis; or else it shows that both Moore and Appleton were deceived and imposed upon by Rarali Quinby, and that they wore equally innocent. If they are equally innocent, then the law will not say which of the two shall suffer.</p> <p>3. Appleton’s trespass was the ground of Quinby’s recovery against him, and the proof shows that he knew he was committing a trespass; and no court will lend its aid to a man who founds his suit on an illegal act. — St. John v. St. John’s Church, 15 Barb. S. 0. R. 352 ; Oliittv on Contracts, p. 570; Merrywoather v. Nixau, 8 TermR. 186 ; 1 Cranch’s R. 345 ; 2 ib. 453. The test is, whether the plaintiff relies on such illegal acts, to establish his case. — Chitty on Cont., supra ; 1 Caines’ Gas. 104; 6 Ohio R. 21 ; 11 Serg. & R. 164 ; 4 Pick. 314 ; 11 Wheat. 258 ; Paley on Agency, p. 62.</p> <p>4. An express, promise by a principal to indemnify his agent against the consequences of an illegal act, is- void, unless the agent acted in good faith, not knowing that he was committing a trespass. — 15 Barb. S. C. R. 348; 17 Johns. 142 ; 9 Cowen’s R. 155-6 ;■ 2 Johns. Cas. 56 ■ 13 E. C. L. R. 343 ; Story on Agency, pp. 456-8. And an express promise will not bind the principal, if the agent knew the act to be a trespass. — 15 Barb. 348 ; Dunlop’s Paley on Agency, p. 152.</p> <p>5. An agent can claim reimbursement from his principal, for a trespass committed by him at his principal’s bidding, only when he had no knowledge or suspicion that it was wrong, and acted in perfect good faith. — 15 Barb. 348 ; Adamson v. Jarvis, 4 Bing. 66; Story on Agency, p. 348.</p> <p>1. The demurrers to the declaration and to the evidence involve the same principles of law, and present the question, whether the facts bring the case within any of the exceptions to the general rule, that the principal is under a legal obligation to indemnify the agent for losses sustained by reason of his employment. An agent, who' commits a trespass by direction of his principal, if at the time he had no knowledge that it was a trespass, but acted in good faith, is entitled to reimbursement from his principal for all the damages he sustains- — -Story on Agency, § 339; Powell v. Trustees of New-burgh, 19 Johns. 284; Coventry v. Barton, 17 ib. 142; Gower v. Emory, 18 Maine R. 79; Avery v. Halsey, 14 Pick. 174; Adamson v. Jarvis, 4 Bing. 66 ; Barney v. Dewey, 13 Johns. 224 ; Aliare v. Ouland, 2 Johns. Cas. 52 ; 1 American Lead. Cases, pp. 692-3 ; Betts v. Gibbons, 2 Ad. & El. 57 ; Smith’s Mercantile Law, p. 110, and cases cited ; 8 Term R. 186 ; 1 Camp. 343; 2 Dow. & C. 288 ; Bigelow v. Dawson, 6 Cush. Mass. 97; Parsons on Contracts, p. 36, note (x); 2 Car. & P. 417. These cases show that, to deprive the agent of his right to indemnity, he must know at the time that it was a wrong. The-declaration and evidence both bring this case within the principles settled by these authorities.</p> <p>2. If the evidence was good under the first count, and sufficient to entitle plaintiff to a recovery under it, then, though the second count were defective, it would be error without injury, the record itself rebutting all presumption of injury ; and so, also, if admissible under the second count, and sufficient for a recovery, the appellant lakes nothing by showing that the first count is defective.</p> <p>3. On demurrer to evidence, all reasonable presumptions are made against the party demurring ; and the court is not bound to render judgment in conformity with what should have been the verdict of the jury, but with what it legally could have done. — Hearing v. Smith. 4 Ala. 432 ; Carson x. State Bank. ib. 148; 7 Port. 426 ; 11 Wheat. 171.</p>

<p>1. A motion to exclude evidence, a part of which is legal, may be ovenuled, since the court is not authorized to reject that portion which is proper, nor required to sift the evidence so as to separate the legal from the illegal.</p> <p>2. The construction of an order of sale, made by the orphans’ court, is a question for the court, and not for the jury, and must be determined from an inspection of the record alone, without the aid of evidence aliunde to show its meaning : similar orders, made by the same judge in other cases, are res inter alios act®.</p> <p>3. The opinion previously pronounced in this cause (23 Ala. It. 704), construing the order of sale of "perishable property” as authorizing a sale of slaves, must stand as the law of the case, when remanded to the primary court for another trial, and when brought up again on appeal.</p> <p>4. If an administrator sells slaves under an order of sale of “ the perishable property” of his intestate’s estate, the validity of the sale, if it was conducted publicly and according to law, is not affected by his opinion or belief that the order did not authorize him to sell the slaves.</p> <p>5. If the court, after deciding a question of law against the plaintiff', refuses to instruct the jury, on his request, that they have nothing to do with the decision of that question — thereby impliedly admitting their right to revise its decision — the refusal of the charge gives the plaintiff an additional chance for a verdict, and is, therefore, no cause of reversal in his favor.</p> <p>6. When the jurisdiction of a court depends upon its ascertainment of a preliminary fact, the exercise oí jurisdiction implies the previous ascertainment of the jurisdictional fact, and its decision as to that fact cannot bo collaterally called in question ; and therefore, whore an order of sale is made by the orphans’ court, the necessity for the order, being a jurisdictional fact, must be considered as having’ been ¡nado apparent to the court, and cannot he inquired into in a collateral proceeding.</p>

Tried before the Hon. Thomas A. Walker. Detinue (under the Code) for a slave named Wilson, by Joseph F. Fenner, in his own right and as administrator of Robert Fenner, deceased, Thomas B. Fenner, Richard H. Fenner, Julius Johnson and Mary Ms wife, Julius Johnson as administrator of the respective estates of John H. Fenner and Fredonia Fenner, both deceased, Margaret E. Fenner, Ann M. Fenner, and Lucy M. Fenner, (the last two being infants, who sue by their next friend,…

<p>Appeal from the Circuit Court of Montgomery.</p> <p>Tried before the ITon. John G-ill Shorter.</p> <p>COVENANT by George M. Bates against Eckles & Brown, to recover damages for the breach of a warranty of soundness, contained in a sealed bill of sale of a slave named Toney, sold by defendants to plaintiff in January, 1851.</p> <p>On the trial, as defendants’ bill of exceptions discloses, a groat number of exccptidns were saved to the rulings of the court in the admission and exclusion of evidence on the question of the slave’s unsoundness ; but of these it is only necessary to state such as are decided by this court. The plaintiff first read in evidence the bill of sale containing the warranty of soundness, and then offered the deposition of Doct. Peterson, who testified, that he had been called to see the slave professionally by the plaintiff, and had visited him af-terwards during his sickness, and had made a post-mortem examination of his body. This witness described with great particularity the symptoms and character of the disease, and in his answer to the fifth interrogatory by plaintiff, among other things, used this language : !! In conversation with the negro, 1 teamed from him, though he made the statement with extreme reluctance, that he had leen subject to similar attacks before, and had been very ill from one such attack years previous. r omitted to give those statements in my answer as to the facts which determined mv treatment of the disease. * * * From the. statement of the negro, and the symptoms of the disease, together with the post-mortem examination, my medical opinion is, that the negro had been tmsound for yearsl’ The defendants moved to exclude from the jury, “as illegal and irrelevant,” those portions of the above answer which arc italicized; but the court overruled each motion, and the defendants excepted.</p> <p>The plaintiffs offered in evidence, also, the depositions of Mrs. Mary Treadwell and Miss Sarah Stevens, taken on in* terrogatories, to the third and fourth of which, before crossing them, the defendants objected, “ on the ground that the testimony sought to be obtained by them is illegal and irrelevant.” These interrogatories, with the answers thereto, were as follows :</p> <p>“ 3. Did you ever hear said slave, when sick and suffering under disease, in reply to inquiries as to the complaint under which he was suffering, speak of said complaint, and of its symptoms, and of the length of time during which he had suffered under said complaint ? If so, state when this was, and where, and to whom such statements were made by said slave, and how said slave came to make them ; and then state all that he said in that connection, and the condition of the slave when he made them.</p> <p>“ 4. Did you ever know said slave to complain of being sick? If so, state what he said as to his condition when making such complaints, and to whom this was said, and where.”</p> <p>Mrs. Treadwell answered these interrogatories as follows :</p> <p>“ Ans. to 3d int. — At a time when said slave was suffering under the illness of which he died, he made frequent suggestions as to the treatment to be used, which led to inquiries on my part whether he had ever before been afflicted in the same way. He replied that he had been subject to similar attacks, and had generally been relieved by drinking soap-suds. Ho was at that time laboring under severe pain in the stomach, and it was in the stomach that he complained of pain. This was on Saturday, a few hours after being attacked, and he died on the following Monday. He opposed the use of the remedies which we had been applying, and insisted on the use of those which he had been in the habit of using; and the remedies which he suggested were used, and seemed to afford momentary relief. The statements were made to Mrs. Bates and myself, at the residence of Mr. Bates in Barbour county. He was at that time suffering intensely, and remarked, that he had been as bad off before with the same disease. In addition to drinking soap-suds, he said, he had also been benefited previously by being put in a barrel of warm water.</p> <p>“ Ans. to 4th int. — At the time said statements were made, he appeared to be suffering in the stomach, and his conduct and movements were such as to induce the belief that he was laboring under a severe attack of the colic. These were the complaints made by him at that time. This was the only time I ever knew him to complain, or be sick, although I had seen him before, but never had any conversation with him.”</p> <p>The answers of Miss Stevens were as follows :—</p> <p>“ Ans. to 3d int. — I have heard said slave, when suffering under pain in the stomach, as he stated, and also as indicated in Ms action, say that he was suffering under such fain, and suggest the use of red -pepper, which he usually carried in his pocket and used habitually. Such complaints and suggestions I have frequently heard Mm malee; and he often asked for syrup, and said meat would hurt him. His ordinary movements about the room were slow, and in a stooping attitude. I resided in the family of Mr. Bates, but was not at home when said slave was attacked with his last illness. I got home the day before his death, and he,had then all the indications of severe pain in the stomach.</p> <p>“ Ans. to 4th int. — In my answer to the third direct interrogatory, I have stated all I know in answer to this.”</p> <p>The bill of exceptions states, that “ there was no proof before the court that Mrs. Treadwell was in any manner medically informed as to the nature and character of diseases, and there was no proof that Miss Stevens was medically skilled.” In addition to their general objections to the third and fourth interrogatories propounded to these witnesses, the defendants objected to specific portions of each; also, to the entire answer to each interrogatory, and to such portions of each, separately, as are italicized. All of these objections the court overruled, and admitted all the evidence; and to the ruling of the court on each separate objection the defendants excepted.</p> <p>These rulings of the court arc now assigned for error.</p> <p>cited the following cases : Thompson v. Mawhinney, 11 Ala. 366; Fairlie v. Hastings, 10 Yesoy’s R. 123 ; Parris v. Jenkins, 2 Rich.’Law R. 106 ; Jones v. Nirdlinger, 20 Ala. 488 ; Stephens v. Chap-pell, 3 Strob. Law R. 80.</p> <p>cited and relied on Rowland v. Walker, 18 Ala. 749 ; Turney v. Knox, 7 Mon. 88 ; Aveson v. Lord Kinnard, 6 East’s R. 188.</p>

<p>Appeal from the City Court of Mobile.</p> <p>Tried before the Hon. Alex. McKinstry.</p> <p>Action (under tbe Code) on an open account for $84, due March 1,1853, by Charles C. Langdon against John Rolston. The defendant filed several pleas, viz.:—</p> <p>“ 1. That he does not owe the amount of said account, never did owe it, and never promised to pay it.</p> <p>“ 2. That ho has paid the debt for which this suit is brought.</p> <p>“ 3. That said account is barred by the statute of limitations, both of three and six years.</p> <p>“ 4. That plaintiff, at the time said summons was sued out, was indebted to him in the sum of $500, for money paid out and expended in the purchase of a buggy for plaintiff, and in divers other ways, to aid said plaintiff to be elected to Congress ; and in the further sum of $2,000, for work and labor, care and diligence, bestowed about the business of plaintiff, and for services rendered to him.”</p> <p>The plaintiff filed several replications to these pleas, viz. :</p> <p>“ 1. That the defendant does owe the account sued on, has owed it for a long time, has been dunned for it times innumerable, and has made at least one hundred promises to pay it.</p> <p>“ 2. That defendant has never paid said account, but has, at different times, paid on account of the same $21 50, with which he has been duly credited ; the last payment being made on the llth February, 1852, at which time the defendant acknowledged the correctness of said account, and promised to pay it, but has never complied with his said promise.</p> <p>113. That said account is not barred by the statute of limitations, either of three or of six years.</p> <p>“ 4. Plaintiff denies that, at the time said summons was sued out, he was indebted to said defendant in the sum of $500, for money paid by him in the purchase of a buggy for plaintiff, or in divers other ways expended to aid him (plaintiff) to be elected to Congress ; but, on the contrary, plaintiff believes that, by the pretended friendship of defendant, and by his pretended efforts to aid in plaintiff’s election to Congress, he (plaintiff) lost one thousand votes, which being estimated at two dollars and fifty cents per vote, plaintiff says ho has sustained damage, at defendant’s hands, to the amount of §2,500-independent of the account sued on. Plaintiff denies, also, that he owes defendant the further sum of $2,000, for work and labor, care and diligence, bestowed by defendant about plaintiff’s *business, or for services rendered by him to plaintiff ; but, on the contrary, defendant has been paid in full by plaintiff, in publishing the heavy political articles written by said defendant from Baldwin county, and in publishing, at defendant’s earnest request, divers effusions of what he (defendant) called poetry.”</p> <p>On the trial, the defendant excepted to several rulings of the court, which are thus stated in his bill of exceptions :</p> <p>“ To support his case, plaintiff introduced as a witness Levi- Langdon, who testified, that he was, or had been, the book-keeper of the plaintiff, and that the account sued on was correct. On cross-examination, he was asked, whether he knew, of his own knowledge, that the first two items of said account were true ; to which he said, he did not, of Ms own knowledge, but supposed they were. He was asked, also, whether he knew, of his own knowledge, that defendant subscribed for the “Daily Advertiser,” for the years beginning with November 1, 1843, and running to November 1, 1849 ; to which he answered, that ho did not, but that defendant frequently came to the desk and got a paper ; that no paper had, during that time, been ordered to be left at his office or residence ; and that the balance of the items were of his own knowledge. He further stated, that on the ilth February, 1852, defendant subscribed for the “ Daily Advertiser,” and paid ten dollars on account, and at the samo time subscribed for said paper for one year from that date, the price being ten dollars; that no account was presented to defendant at the time, and nothing was said about an account, the amount, or anything about it, except that defendant paid ten dollars on the general account; that no account had previously been presented to defendant; that afterwards, to-wif, in 1853, an account had been presented to him for payment, that he did not admit it, but said that it was not just and he would not •pay it; that the account sued on had never been presented to him, but he (witness) thought it was a copy (or near it) of the one which had been presented to him. He further stated, that defendant had written several communications for the paper, which were published, &c., but he did not know whether he had been requested to do so by plaintiff.</p> <p>“ Daniel Langdon was then put on the stand, who testified, that he had presented an account to defendant, but defendant did not admit its correctness, nor did he promise to pay it ; and that the account sued on was not the account presented. Henry Jones, who was then put upon the stand, testified, that the account sued on was made out by him from a copy which Mr. Langdon handed him. The defendant then offered some evidence, conducing to prove what would be the value of a column of matter prepared for a paper, supposing it was approved by the editor or proprietor, and was of value to them or their paper.</p> <p>“ The court charged the jury, among other things, that it did not make any difference whether the defendant wrote for the paper, and his communications were examined and approved by the editor, and were of value to the paper — that unless there was a request, on the part of the editor, to write</p> <p>them, defendant could not set them up as a set-off in this case, but, on the contrary, the editor had a right to charge for putting them in his paper ; to which charge the defendant excepted.”</p> <p>The defendant asked the following charges :—</p> <p>“ 1. That if the statute of limitations had perfected a bar,</p> <p>then, to authorize plaintiff to recover, there must be a subsequent promise, with a full knowledge of all the facts ; which charge the court refused, and defendant excepted.</p> <p>“ 2. That if an account is barred by the statute of limitations, a subsequent payment, to take it out of the statute of limitations, must be made on the account; and if no account was presented at the time, and nothing was said about an account at the time, then the payment is .not sufficient to take it out of the statute ; which charge the court refused, and the defendant excepted.</p> <p>“ 3. That if defendant wrote for the paper, with the knowledge and approval of the editor or proprietor, and the communications were of value to the paper, though nothing was said at the time about payment, still the defendant is entitled to reasonable compensation therefor ; which charge the court refused, and the defendant excepted.”</p> <p>The charge given, and the refusal to charge as requested, are now assigned for error.</p>

<p>Appeal from the Circuit Court of Montgomery.</p> <p>Tried before the Hon. Robert Dougherty.</p> <p>Action on the case by Francis M. Gilmer and William Taylor against the City Council of Montgomery, “ to recover damages,” as the endorsement on the writ states, “ for defendant’s negligence and carelessness in permitting the rain water to run upon plaintiffs’ lots, Nos. 1, 2, 9 and 10 in square No. 2, known as the Bibb & Nickels warehouse, from-street in the city of Montgomery, and thereby washing and undermining plaintiffs’ said lots, and injuring the same.”</p> <p>The .plaintiffs’ bill of exceptions shows these facts :—</p> <p>“ It was in evidence, that plaintiffs bought lots Nos. 9 and 10, named in the declaration, on the 4th January, 1850 ; and that said lots lay in the city of Montgomery, at the point where Moulton and Water streets intersected. There was evidence, also, tending to show that when said lots were thus bought, a ravine existed in Moulton street, running from the river several hundred feet back into Moulton street; that said ravine was, in part, also, upon a portion of said lots, and that it had increased on said lots, in width and depth, after said purchase, up to the summer of 1851; also, that said ravine had been commenced as early as 1833, by the wash of rain water, which naturally found its way to the Alabama river at the point where said ravine was formed ; that within ten years previous to the bringing of this action, said city council had, by annual working upon the streets, and by forming ditches and filling up hollows in said city, up to the year 1851, diverted a considerable quantity of rain water, which naturally found its way into said river at other points than said ravine, into the said ravine, and had thereby increased the quantity of water which ran into said ravine through Moulton street. The defendant proposed to ask a witness on the stand, ‘ if there were not other ravines in the city which had increased in size for the last twenty years in as great a proportion as this ravine had increased.’ Plaintiffs objected to this question, but the court overruled the objection, and allowed the question to be put; and to this the plaintiffs excepted. Witness answered, that there were.</p> <p>“It was in evidence, also, that plaintiffs, some time in 1851, gave notice to said city council, that they desired to commence improving their said lots, and that said council should take steps to protect their said lots and improvements from damage by reason of said ravine and the flow of water therein in Moulton street; that said city council considered upon said notice, and, after repeated urging, appointed a committee to investigate the matter ; that said committee was raised on the 23d June, 1851, and discharged on the 12th August, 1851, and did nothing but throw a little brush into the head of the ravine, which only made it worse; that in July, 1851, plaintiffs commenced filling up said ravine on their said lots,, and building 'a brick wall on the line of their said lots, in said ravine, and built a wall, twenty-two feet high and three feet wide at the foundation, with hydraulic cement, and built it two hundred and twenty-five feet on Moulton street, and eighty feet on Water street, and made an embankment in said ravine on 'Moulton street, by the side of their wall, about eight feet wide, and seven or eight feet high above the bottom of tbe ravine; and that said ravine was about twelve feet deep. There was evidence, also, that said work extended on the line of said lots nearly across said ravine, to within about ten feet from the bluff of said ravine, which was in Moulton street; that said bluff was as high as said wall, and that said wall and embankment narrowed the aperture in said ravine through which the water flowed. The defendant proposed to ask a witness, who had been engaged in building brick houses and brick walls for the last seventeen years, if he did not tell said E. M. Gilmer, William Taylor not being present, ‘ that if he built said wall in said ravine, it would fall by reason of the floods in said ravine.’ Plaintiffs objected to this question, but the court overruled the objection, and allowed the question, to be asked; and to this plaintiffs excepted. Witness answered, that he did tell him so.</p> <p>“ There was evidence, also, that about the first of September, 1851, a heavy rain occurred, and the wall was washed down, and a large quantity of earth was washed out of said lots. There was evidence, also, tending to show that plaintiffs had not quite filled up that part of said ravine on their said lots, but had filled it up some eight feet deep, leaving about three feet in depth below the level of the balance of said lots; that plaintiffs had left a gap on the top of their said wall in Moulton street, the bottom of which was five feet above the level of the surrounding earth, and that, when the wall fell, all that fell was that part included between the river on Water street and one side of that gap. The only witness who testified as to that gap, swore that the water did not rise within five feet of that gap, and that no water had flowed into the lots through that gap, and that there was a distance of twelve feet, or more, between the edge of the gap and the nearest edge of the water that ran into the lots from Moulton street. There was evidence, also, tending to show that the flood running into the ravine undermined the high bluff of the ravine, and that it fell across the ravine, and filled it up, and knocked down the wall, and that the flood poured over the broken wall, and washed out the dirt in the lots ; also, that the water which fell in said lots had accumulated against the wall, and washed it down ; that there were a few gullies running through said lots, emptying themselves in said ravine when said wall was built, and that some of the water came from off plaintiffs~ warehouse.</p> <p>"Upon this evidence, the defendant's counsel asked the court to charge the jury as follows :-</p> <p>"1. That if plaintiffs built their wall partly across said ravine, and near the opposite bank of it, and then threw up a side-walk, six or eight feet wide and six or eight feet high, on the outside of said wall, and thereby caused the current to be forced against the opposite bank, and the same was undermined, and washed down, and fell against the said wall, and in falling knocked down the said wall,-then plaintiffs could not recover; which charge the court gave, and the plaintiffs excepted.</p> <p>"2. That if the jury believe from the entire evidence that the injury done to plaintiffs' property was effected by the plaintiffs' own acts and imprudence, then they cannot recover; which charge the court gave, and the plaintiffs excepted.</p> <p>"3. That if they believe from the whole evidence that the damage done to plaintiffs' property was effected, partly by their own acts and imprudence, and partly by the acts, negligence, and imprudence of the defendant, then plaintiffs can only recover so much damages as they have experienced by the defendant's net; which charge the court gave, and plaintiffs excepted.</p> <p>"4. That if they were unable to apportion and separate the injury done by plaintiffs from that done by defendmit to said property, then plaintiffs cannot recover; which charge the court gave, and Plaintiffs excepted."</p> <p>The rulings of the court on the evidence, and the several charges given, are now assigned for error.</p>

<p>1. When an attachment is sued out in a case not authorized by law, a motion to quash it is not the proper remedy, nor is the refusal to quash on motion re-vísatele on error.</p> <p>2. But if a motion to quash were proper in such case, the objection is waived by the failure to make it at the iirst term, and by afterwards appearing and pleading to the merits.</p>

<p>Appeal from the Court of Probate of Marshall.</p> <p>In the matter of the final settlement of the estate of Sarah Farmer, deceased, by Isham H. Fennell, administrator.</p> <p>The said administrator, wishing to discharge himself from the payment of interest on the funds which he had received, made the following affidavit: “ That he has always had on 'hand, or within his immediate control, a sum amply sufficient to pay the distributive shares of Freeland Farmer and. Townsend Farmer ; that the other distributees were paid'off, at or before the same was received by affiant; that he has always been ready and desirous to pay the distributive shares of the other two, .and has always been ready to pay the same, but neither of them ever applied for it, nor had any guardian been appointed to whom he could pay it, known to affiant. Affiant does not protend, or allege, that he has kept separate and apart the identical money of said estate, but has always kept himself prepared to pay the amount, and sent word to an uncle of the minors to become their guardian, that he might pay their shares. There was, also, a space of two or three years that affiant expected some one to be appointed their guardian.”</p> <p>On this affidavit, the distributees of the estate.moved the court to charge the administrator with interest on the money which had come to his hands; but the court held the affidavit sufficient to discharge him from the payment of interest; to which ruling the distributees excepted, and they now assign it for error.</p>

<p>1. The act of 1850, which provides (Pamphlet Acts 1849-50, p. 82, § 28) “ that partial settlements, whether of executors, administrators, or guardians, shall on final settlement bo considered as only prima facie correct,” does not retro-act upon settlements made before its passage.</p> <p>2. If, on an annual or partial settlement made by an administrator under the act of 1813, all tiro proper parties being regularly before the Court, an issue is made up respecting the validity of certain items, and fully tried by the parties before the court, the judgment given upon them, whether allowing or rejecting them, so long as it remains unreversed, is as conclusive as if rendered on final hearing, and may bo pleaded in bar on the final settlement.</p>

<p>Appeal from the Circuit Court of Cberokee.</p> <p>Tried before tbe Hon. Thos. A. Walker.</p> <p>Detinue by Robert Couch, John Couch, William Couch, Sidney Couch, William Baker and Eleanor, his wife, Harvey Hendrix and Margaret, his wife, Spencer Stegall and Mary his wife, Alexander Orr and Malinda, his wife, and William M. Jamison and Dorcas, his wife, against Harvey Anderson, for two negroes, a boy named Guilford, and a girl named Lucy.</p> <p>The plaintiffs claimed under a deed of gift from their father, John Couch, dated in February, 1824, of which the following is a copy:—</p> <p>“ State op South Carolina, ) Know all men by these pre-Pendleton District. ) sents, that I, John Couch, of the same State and district, for and in consideration of the natural love and affection which I bear my daughter Lucinda, now the wife of Thomas Montgomery, have given and granted unto my said daughter Lucinda, during her natural life, and at her death to the child or children of my said daughter, a certain negro girl named Mary Eleanor, about seven years of age, together with the future issue and increase of the said slave ; but, in case of the death of my said daughter Lucinda without lawful issue of her body, then the said negro girl, and her issue or increase, to return and belong to my other heirs. And I do hereby bind myself to warrant and defend the said negro girl, together with her issue or increase, to my said daughter Lucinda, as. above mentioned, against myself, or any other person or persons lawfully claiming the same. Given under my hand and seal,” &c.</p> <p>On the trial of the cause, the parties entered into an agreement, by which they admitted these facts : That a copy of the deed might be used as the original, the due execution and delivery of which were admitted ; that the grantee in said deed, Lucinda Montgomery, died in 1851, before the commencement of this suit, never having had any child or children ; that, the negroes sued for are the children of the negro girl mentioned in said deed ; that said girl was sold in the lifetime of said Lucinda Montgomery, by the sheriff of Greenville district, South Carolina, to satisfy an execution against her husband ; that notice of said deed was publicly given at said sale, and that the defendant elaims under said sale ; that said deed was duly recorded in the proper office in South Carolina ; that said John Couch, the grantor, is still living; that plaintiffs aro the only living children of said John Couch, and were born before said deed was made ; that the value of the negroes sued for is $500 each, and that defendant was in possession when the suit was brought.</p> <p>“ No other proof being offered, than said agreement and deed, and there being no conflict in the proof, the court charged the jury, that if they believed the proof, they should find for the defendant; to which charge the plaintiffs excepted,” and which they now assign for error.</p> <p>By the terms of the deed, Lucinda Montgomery took an estate for life in the slave Mary Eleanor, and her child or children, if she had any living at her death, the absolute estate ; but, if no such child was living at her death, or if she never had any such child, then, at her death, the property vested in the “other heirs” of the grantor. — Darden’s Adm'r v. Burns’ Adm’r, 6 Ala. 365; McGraw v. Davenport, 6 Port. 327 ; Powell v. (Jlenn, 21 Ala. 458 ; Flinn v. Davis, 18 ib. 132 ; Williams v. Graves, 17 ib. 62 ; Woodley v. Findlay, !) ib. 716 ; Keating v. Reynolds, 1 Bay’s R. 80.</p> <p>The words “heirs” and “heirs of the body,” when applied to personal estate, have been sometimes held to be synonymous with “ children.” — Jarman on Wills, 2d vol., m. p. 73 ; Powell v. Glenn, 21 Ala. 466 ; Doyle v. Bouler, 7 ib. 246 ; Fellows, Wadsworth & Co. v. Tann, 9 ib. 999 ; Williams v. Graves, 17 ib. 62 ; Dunn v. Davis, 12 ib. 135 ; Hodgeson v. Bussey, 2 Atk. 89 ; Wright v. Jesson, 5 M. & S. 98 ; Bowers v. Porter, 4 Pick. 208 ; Goodright v. White, 2 W. Black’. 1010 ; Doe v. Lawson, 3 East’s R. 278.</p> <p>The strictness of the ancient rule, as to repugnancy in deeds, is much relaxed. The intention is to be gathered from the whole instrument, rather than from particular clauses seemingly repugnant. — McWilliams v. Ramsay, 23 Ala. 813 ; Hamner v. Smith,- 22 ib. 433. The modern rule is, to give effect to the whole and every part of the instrument, whether it be a will, deed, or other contract — to ascertain the general intention, and permit it, if agreeable to law, to overrule the particular. — Greenleaf’s Cruise, vol. 4, tit. 32, cb. 12; Story on Contracts, § 659. In the construction of wills (and it is insisted, under the authorities above cited, that the same principle applies to deeds) the courts always look to the intention as the polar star to guide them. — G-ulliver v. Poyntz, 3 Wils. 141 ; Smith v. Bell, 6 Peters 84.</p> <p>A contingent remainder in personal property, after a life estate, may be created by deed. — Williamson v. Mason, 23 Ala. 488 ; Price v. Price, 5 ib\ 580. The rule in Shelley’s .case enlarges the estate of the first taker, only when his heirs general, or the heirs of his body, take by descent from him, and not as purchasers. Here, the life estate of the wife vested in the husband and his heirs, and the line of legal descent is different from those who take under the deed; and the rule, therefore, cannot apply. — Cases cited above.</p> <p>In regard to personal estate, it seems clear, that words dé-noting a failure of issue, following a bequest to children, refer to the objects of that gift. — 2 Jarm. Wills, m. p. 363.</p> <p>1. The deed speaks from the time of its execution, and must at that time define all the interests created by it. Even if the words “my other heirs” mean “ my other children,” it is uncertain whether the donor meant his other children then living, or those living at the death of the first taker without issue living at her death ; and in this state of uncertainty, a well-settled rule of "construction (Isbell v. Maclin, 24 Ala. R. 315) intervenes, and provides that they shall take as heirs, or by representation, and not by descent. In this state of uncertainty, it cannot be said that the deed creates and defines the estate which the other’children would take.</p> <p>2. In this view, also, it seems clear from the context, as well as from the use of the term heirs, that the donor intended, at the determination of the particular estate, (if an estate tail is not’created,) that a reversionary interest would fall back to his estate, and would then pass to his other heirs, whoever they might be ; for, doubtless, he expected that he would not survive his daughter and her children, and he provided accordingly. — Keyes on Chattels, § § 59, 300.</p> <p>3. Tbo term “heirs,” when used in a gift or bequest of personal chattels, always means “next of kin and to ascertain these, wo must leave the deed or will; and look to the statute of distribution for the definition of the term. This proves that the “ heirs” cannot take under the deed alone as purchasers, but under the statute by representation. — Eddings v. Long, 10 Ala. 208 : Malcolm v. Taylor, 2 Buss. & M. 416 ; Kay v. Connor, 8 Humph. 624.</p> <p>4. The remainder to the “ heirs”’ of the donor, upon a contingency, might be good, because lie might be dead when the particular estate determined ; but, if it should happen that the donor is still living at the determination of the particular estate, then the limitation over is at end : like all other contingent remainders, it is defeated if the person intended to be benefited cannot take when the contingency happens. — 2 Black. Com. p. 186.</p> <p>5. The limitation over is void for uncertainty, and also for remoteness. — Dunn v. Davis, 12 Ala. 185; Keyes on Chattels, p. 136.</p> <p>6. The donor seems to have studied to find terms which would avoid a designatio personarum, and to select words which would embrace indefinitely a class of persons who could take as heirs or as purchasers.</p>

The appellants, claiming' to be the children and legal dis-tributees of Robert Howard, deceased, filed their petition in July, 1854, for a citation against Robert L. Clark, as administrator of William Howard, deceased, to compel him to settle his intestate’s administration on the estate of said Robert Howard.

Tried before the Hon. Thomas A. Walker. This action (Benjamin Q. Harper v. William Allen) was commenced before a justice of the peace, whose summons describes the action as “ a plea of debt under fifty dollars due by account,” The justice rendered judgment for the plaintiff, from which the defendant appealed to the Circuit Court.— The record does not show that the plaintiff there filed any statement, or complaint; bnt the judgment entry recites, that “the parties came by…

Eebor from the Circuit Court of Madison. Tried before tbeHon. Thomas A. Walker. Held: that a party who is induced to adopt a particular course of conduct, by an express promise of compensation, may recover on the promise, without having given any other evidence of his assent to the contract, than by acting under it: And as persuasive to show that this is the true rule, the precedents of declarations on guaranties…

Heard before the Hon. J. W. LusesNE. The original bill in this case was filed in October, 1850, by W. W. Shearer, the appellant, against Albert G. Loftin, Henry R. Thornton, George B, Saunders,… Held: that the assent of preferred creditors would be presumed;,and if any preferred creditor should refuse to assent, that the deed would be good for the others.

Tried before the lion. Robert Dougherty. Trover by Aramanus L. Barnes and Eldridge M. Barnes against Warren L. Mobley, for the conversion of a slave named Bazo ; plea, the general issue, with leave to give any special matter in evidence. Eor the former report of the case, see 21 Ala. 232-9.

<p>Appeal from the Circuit Court of Shelby,</p> <p>The record does not show the name of the presiding judge.</p> <p>This action was brought by the appellants, on the 19th January, 1853, to recover a certain tract of land, which is particularly described in the complaint, together with damages for its detention.' The defendant pleaded in abatement the pendency of a previous action of trespass, brought by plaintiffs and others against him, for the recovery of the same land. To this plea the plaintiffs demurred, but the court overruled the demurrer, and, on their declining to plead over, rendered judgment quashing the complaint; and the judgment on the demurrer is now assigned for error.</p>

<p>Appeal from the City Court of Mobile.</p> <p>Tried before tbo Hon. Alex. McKihstry.</p> <p>The complaint in this case was as follows :</p> <p>“ Thomas J. Carver, assignee of] The plaintiff claims of Robert L. Walker, the defendant, as executor vs. [■ of Joshua Kennedy, de-William R. Hallett, executor of ceased, the sum of two Joshua Kennedy. thousand, seven hundred and fifty-live dollars, amount of compensation for his services as executor of the estate of said Joshua. Kennedy, as allowed by the decree of the Orphans! Court of Mobile county, rendered on the 3(1 day of December, 1845, with interest on said sum ; which claim lias been assigned to plaintiff.”</p> <p>In support of his complaint, at the trial, the plaintiff offered in evidence an order of the Orphans’ Court of Mobile county, in these words :</p> <p>“ In the estate of ] Orphans’ Court of Mobile Co. Joshua Kennedy, deceased, i December 3, 1845.</p> <p>“ On the application of the executors that an annual compensation be allowed them for services in the management of said estate, it is ordered, that a compensation of three thousand dollars per annum bo allowed to Win. R. Hallett, one of the executors, in lieu of" commissions, for his attention and services in the management of said estate, to commence from the date of 1ns letters testamentary ; and it is further ordered, that a compensation of three hundred dollars per annum, be allowed to Robert L. Walker, the other executor, in lieu of commissions, for his attention and services in the management, of said estate, to commence from the date of his letters testamentary.”</p> <p>The plaintiff also proved the assignment of this claim by-said Walker to himself before the institution-of this suit.— On an agreed statement of facts, which it is unnecessary to notice further, the court gave judgment for the defendant, and its judgment is now assigned for error. ■</p>

In the matter of the appellants’ petition for the distributive share of Mrs. Miller (formerly Mrs. Flournoy) in the estate of her former deceased husband, Marcus A. Flournoy, whose will contained the following clauses, in addition to others which have no bearing on the case : “ Fourthly. — It is my will and desire also, that my wife, Eliza A. Flournoy, shall keep together, and with her and under her care and protection, all my children ; and for the better enabling her to do…

<p>1. A surety, who receives from his principal a mortgage, or other security, is regarded as a trustee for his eo-surety, and held to the exercise of the duties which attach to that relation; and if he afterwards, without the consent of his co-surety, surrenders or abandons the security, merely because the mortgagor objects to giving up the property, he cannot obtain contribution from his co-surety.</p> <p>2. An abstract charge, which asserts a correct legal proposition, is no ground for reversal, when the record shows that it could not have misled the jury.</p>

<p>1. The holder of endorsed nicreanlilo paper before maturity, is presumed in law to have acquired it bona fid': and for valuable consideration : and Ihe party who seeks to defend against it, by reason of some, payment, set-off, or equity against.the payee or some intermediate holder, is required to show that the holder did not give value for it, or to raise a presumption of that fact sufficient to require an explanation from the holder of the mariner in which he received it.</p> <p>2. A deed of trust, if properly recorded, is constructive notice of the lion in all contests respecting the properly ; hut this constructive notice does not run with mercantile paper, secured by the deed, so as to charge a bona fide holder before maturity with knowledge of its recitals : if there is nothing on tho face of the paper itself which could give the holder such notice, or put him upon inquiry, he cannot ho affected by any payments, discounts, sots-off or equities existing between the antecedent parties.</p>

<p>.ERROR from the Circuit Court of Montgomery.</p> <p>Tried before the Hon. Robert Dougherty.</p> <p>ActioN ON the Case against a common carrier, to recover damages for the loss of plaintiff’s trunk and its contents. The facts proved on the trial, so far as they are material to an understanding of the case as here presented, were as follows: The plaintiff, in traveling from Mobile to Charleston, purchased at the stage-office in Montgomery a through ticket from that city to Charleston, and traveled by railroad to West-Point, the eastern terminus of the road ; at that point the passengers, with their baggage, were transferred to coaches, in which they proceeded towards Atlanta, Georgia ; on arriving at Lagrange, Georgia, the coaches were changed, and on reaching a station beyond that place it was discovered that plaintiff’s trunk was missing. The plaintiff was traveling under the charge of Mr. Pratt, and the defendant was on the line at the time. Mr. Pratt informed' the defendant of the loss of the trunk, as soon as it was discovered ; and the defendant thereupon told Pratt that he was one of the proprietors of the line of coaches, promised to have diligent search made for the trunk, and wrote his name across a memorandum containing a list of the articles in it. The defendant was the proprietor of the line of coaches which ran between West-Point and Lagrange, while the route between Lagrange and the station at which the loss of the trunk was first discovered was owned by Peters & Boman; and the bill of exceptions states, that the “ evidence tended to show that the said Peters & Bernards line was separate from that of defendant — -that defendant had no interest in their line of coaches and horses, and that they had no interest in his line.” There was evidence, also, tending to show that plaintiff’s trunk vps lost beyond Lagrange, on that portion of the line which was owned by said Peters & Beman.</p> <p>The court charged' the jury, “ that if they believed from the evidence that plaintiff left Montgomery, in this State, for Charleston, South Carolina, and traveled with a through ticket, and that defendant received, or was to receive, under any contract or agreement, any part of the money paid for. said through ticket by plaintiff', and that defendant was the proprietor of any portion of the route over which plaintiff traveled in going to Charleston, then the defendant was, as to the plaintiff, a co-partner with the proprietors or owners of the other portions of the route; and that if plaintiff’s trunk contained her baggage, and was lost on any portion of the route between Montgomery and Charleston, then defendant was liable to plaintiff' for the value of the trunk and its contents.” To this charge the defendant excepted, and he now assigns it for error.</p> <p>To charge the defendant with the loss of plaintiff’s trunk and its contents, it was necessary for the plaintiff to show, either that tliey were lost by the defendant, or that lie was a co-partn or with the person by whom they were lost. The mere fact that tlie.sevoral proprietors of the different portions of the route for transporting passengers between Montgomery and Charleston employed the same agent to collect their fare, did not make them all partners, either amongst themselves, or as to third persons: there was no communion of profits between the several proprietors. — Collyer on Partnership, §§ 18, 21, 22 ; Porter v, McLure and Tourtellot; 15 Wend. 187 ; Jackson v. Robinson, 3 Mason’s R. 141.</p> <p>The evidence tended to show that the defendant was interested in the proceeds of the through ticket to Charleston; and the fact that he owned the coaches and horses of a portion of the route only, did not, as to third persons, destroy his liability as a partner with the proprietors of the other portions : the through-ticket arrangement made him liable to any passenger bearing a through ticket. — Story on Bailments, § 506; Champion v. Bostwick, 18 Wend. 175 ; Bostwick v. Champion, 11 ib. 580 ; Fairchild v. Slocum, 19 ib. 329. If Ellsworth was not interested in the through ticket, why did lie not demand pay of the passengers? Tie was on the line at the time of the loss ; ho made no objection to the through ticket, but recognized his liability in case of loss; he told the witness Pratt that he ivas interested “ in the line”, and wrote his name on the list of articles in the trunk, for the purpose of showing the passenger to whom to look in case of the ultimate loss of the trunk.</p>

<p>Appeal from the Chancery Court of Cheroke'e.</p> <p>Heard before the Hon. James B. Claek.</p>

<p>1. If the parties to a pending suit, under the mistaken impression that the costs ■ haye been adjudged against the defendant, enter into a verbal 'contract, by which plaintiff agrees to pay the costs in the first instance, and defendant promises to re-pay them, and also the note on which the suit is founded, and whiph he admits to be just, in good accounts due the first day of January next thereafter, the promise is binding, and its validity is not affected by the mistake.</p> <p>2. And if the plaintiff, on the verbal agreement being afterwards reduced to writing, fails to inform the defendant of the mistake, and conceals from him the fact (which he had himself discovered, and of which he knew defendant was still ignorant) that he had taken a nonsuit, this does not amount to a fraud on the defendant, nor enable him to avoid the written contract.</p>

Tried before the Hon. John E. Mooke. CoyENANT by Wilson Nesbitt against Nicholas McGehee, to recover damages for the defendant's breach of this contract:— “ Articles of agreement, made this 28th day of January, 1841, between Wilson Nesbitt, of the one part, and Nicholas McGuhee, of the other part, witnesseth, That the said McGehee covenants and agrees to deliver to the said Nesbitt, at the water’s edge, at his steam-mill at Cedar Bluff, all the stocks for string timber for…