Volume 28 — Alabama Reports

Fbom the Circuit Court of Walker. Tried before the Hon. Thos. A. Walker.

Feom the Circuit Court of Marion. Tried before the Hon. Thos. A. Walker. INDICTMENT for polygamy, charging “ that Allen Thompson, before the 'finding of this indictment, having a wife then, living, unlawfully married one Roxanna Wilkerson, against the peace and dignity of the State of Alabama.” The defendant excepted to the charge of the court, under which ho was convicted, and which is the only matter now assigned for error.

<p>[INDICTMENT EOIt TKADING WITH SLAVE WITHOUT MASTER'S CONSENT.]</p> <p>1. Ownership of slave how proved. — The ownership of a slave, when alleged in an indictment, cannot ho proved by general reputation.</p> <p>2. Charge upon credibility and sufficiency of evidence held erroneous. — Where a witness for the prosecution is impeached by proof of his contradictory declarations' on a material point, it is-error to instruct the jury, “that they must believe the witness for the State, unless they believe that the contradicting witness is entitled to more weight and credit than said witness for the State.” Such a charge invades the province of the jury, who are the sole judges of the credibility and degree of credit to be accorded to each witness; and it. is also objectionable, because the contradicting eyidence, though less credible than the testimony of the witness for the' State, may yet be sufficient to raise a reasonable doubt in the minds of the jury, and thus secure the defendant’s acquittal.</p>

Froh the Circuit Court of Baldwin. Tried before-the Hon. C. W. Rapier. JohN J. Stalls was indicted, at the November term, 1854, for harboring or concealing a runaway slave, knowing him to be a runaway, and was tried at the November term, 1855.

APPLICATION by Thomas G-. Banks for a mandamus to the city court of Mobile, Hon. Ales. McKinstry presiding, to obtain a change of venue in a criminal case.

<p>Ebom tbe Circuit Court of Barbour.</p> <p>Tried before the Hou. Nat. Cook.</p> <p>Jambs L. SweeNEY was indicted at the January term, 1854, for gaming, and was tried at the May term, 1855. The bill of exceptions, which was taken by him on the trial, is as follows : “ The State proved, that the defendants played a game of cards, in Barbour county, within twelve months before the finding of the indictment; that the place where said playing took place was in a room over a country store; that said room was entered on the outside, by steps, and was disconnected from the store; that the furniture of said room consisted of some chairs and a mattress; that it was sometimes used as a sleeping place by the proprietor of the store, who kept the key of said room; that no goods of any descrip-' tion were kept or sold in said upper room, but that sometimes, when the store was crowded, persons who wished to adjust their accounts in private went up, by special permission, for that purpose; that such persons never went up while the defendants, or any other persons, were playing cards there. It was shown that goods and merchandise were sold in the store beneath, but not that any spirituous liquors were sold or given away there. When the playing took place, the door of the upper room was closed and locked, and nobody was allowed to enter, except upon being recognized and approved, nor could anybody enter without permission ; all others were refused admission. It was not shown that there was any passing in or out of said room during said playing, except that one witness swore he knocked at the door; and; upon making himself known, was allowed to enter. Only four or five persons were present at the playing, which took place with the assent of the proprietor, who furnished the de" fendants with the key for that purpose. It was shown, also’ that persons playing in said upper room could not be seen from the road on the outside, and that there was no communication between the store and said upper room, by door or otherwise. Upon this state of facts, the court charged the jury, that the place where the playing took place was a public house, within the meaning of the statute; and that, if they believed the evidence, they must find the defendant guilty. The defendant excepted to this charge, and he now assigns it for error. •</p>

Feom the Circuit Court of Coosa. Tried before the Hon. Geo. D. Shortridge. INDICTMENT against Henry A. Huffman, in the general form prescribed by the Code, for gaming.

G-co. D. Short-ridge presiding, to compel the dismissal of a certain suit pending in said court, wherein Cicero D. R. Woodruff is plaintiff, and Jared Cole is defendant. The grounds of the application are stated in a bill of exceptions, which is embodied in a transcript of the proceedings had in said cause at the October term, 1855, and made part of the petition.

FROM the Circuit Court of Perry. Tried before the Hon. Geo. D. Shortridge. Tnmotm-ent against Jefferson Ward, for. an assault'and battery on one Henry Chambles, found at the Fall term, 1853, of the circuit court of Autauga, and removed, on the defendant’s application, at the Spring term, 1855, to Perry county.

Tried before tbe Hon. Robert Dougherty. was arrested under a warrant issued by a justice of the peace, on'the affidavit of Mary Ann Hill that he was the father of a bastard child with which she was then pregnant, and which was afterwards born in December, 1854.

Feom the City Court'of Mobile. Tried before the Hon-. Alex. McKinstry. INDICTMENT eor arson against Francis Martin and Michael Flinn, containing four counts.

Ebom the City Court of Mobile. Tried before the Hon. Alex. McKinstry. Indictiients for setting up, or being concerned in setting-up, or carrying on a lottery, without the legislative authority of this State ; one against A. M. Salomon found at the May term, 1855, and two against Milton Boullemet, found at the July and November terms, 1855. In each case a bill of exceptions was taken to the rulings of the court, which present the only questions for revision in this court.

<p>[application fob bail aster its refusal bt circoit judge.]</p> <p>1. Bail in capital cases. — Under the provisions of the constitution (Art. I, § 17) and laws (Code, §§ 3669-70), a person indicted for murder is entitled to bail, as a matter of right, unless the court to which the application is made is of opinion, on the evidence adduced, that he is guilty of murder in the first degree; and if the application for bail is made to a circuit judge, and is by him refused, the evidence in the case may be set out on exceptions (Code, § 3673), and application made thereon to the supremo court.</p> <p>2. Murder in the first degree not here shewn. — Upon the evidence set out in the bill of exceptions (for which in full see statement of the case), the defendant was held entitled to bail as a matter of right, because the court could not, uponthat evidence, say that he was guilty of murder in the first degree, as defined by section 3080 of the Code.</p> <p>3. Amount of bail. — That the defendant is a man of fortune is a fact which may-well he considered in fixing the amount of his bail.</p>

Tried before the Hon. Robert Dougherty. In the matter of the last will and testament of David Dunlap, deceased, which was propounded for probate, on the 18th September, 1852, by James J. Robinson, who was the father of the beneficiaries provided for in it, and was contested by the appellants, who were the brothers and heirs-at-law of the testator.

Tried before the Hon. JOHN E. Moore. ' Edward Peaesall, the appellant, obtained a judgment against Alexander A. McCartney, at the September term, 1841, of the circuit court of Morgan, for $580 92 debt, and $85 80 damages, besides costs, on which hé caused an execution to be issued on the 14th June, 1850, and levied on certain lands, slaves, and other property belonging to said McCartney.

<p>[BILL Hi EQUITY TO ESTABLISH BY PAROL RELULTING TRUST IN LANDS.]</p> <p>1. Resulting trust founded on presumed intention, and not raised between parent and child. — The resulting trust which, in equity, arises in favor of the person who advances the purchase money of land, is founded upon presumptive intention, and is designed to carry that intention into effect. It will not he created in opposition to the declarations of the person who advances the money, nor in opposition to the obvious purpose and design of the transaction. The mere fact that the purchase money was advanced by a parent, while the conveyance was taken in the name of a child who is not shown to be provided for, is not sufficient to raise the presumption of such a trust.</p> <p>2. Múdeme in this case held insufficient. — Bill filed by two sisters, against widow and devisee of deceased brother, to establish resulting trust in lands purchased by decedent in Ms own name, but paid for with money advanced by his mother. The complainants were all of lawful age when the purchase was made; the bill was not filed until after the expiration of more than sixteen years from the purchase, more than nine years after the death of the old lady, and more than three years after the death of the son; and the only excuse alleged for the delay was disproved. The complainants’ evidence consisted principally of the old lady’s declarations, made in her son’s presence, that her money had paid for the land; the son’s admissions of that fact; and his promise to his mother that he would “ do what was right between his sisters, after she was gone, in relation to the land.” The other evidence in the cause showed that the son lived with his mother, and managed her business, for six or seven years before the purchase was made, and from that time until her death; that his services to her, for which he was not shown to have received any compensation, were worth more than the price of the land ; that he was an economical and industrious man; and that his mother knew, several years before her death, that he claimed the land as his own. The court refused to establish the trust; holding that the declarations of the parties were reconcilable with the non-existence of the ' trust, or with its waiver and-discharge before the old lady’s death, and that the evidence, under all the circumstances of the case,.was not sufficient.</p>

John May died, in Greene county, in 1853, after having made and published his last will and testament in writing, dated April 25, 1849, and attested by three witnesses, which was duly admitted to probate on the 27th June, 1853, and which contained the following provisions: The first clause directed the payment of all his just debts; the sixth clause appointed his son, Pleasant May, and his son-in-law, James A. Moore, as his executors; and the other clauses were in the…

<p>Appeal from tbe Circuit Court of Perry.</p> <p>Tried before tbe Hon. Edmund W. Pettus.</p> <p>This action was commenced in October, 1851, and the trial was bad at the November term, 1854. The bill of exceptions purports to have been “ signed, sealed, and made a part of the record, in term time,” and is signed by the presiding judge; but his seal or scroll is not appended to his name. Errors were assigned, and the cause was argued on its merits;' but it is unnecessary to notice any of the points made, except the motion to strike the bill of exceptions from the record.</p> <p>contended, 1st, that the case was governed by the old law, because the action was commenced before the adoption of the Code; 2dly, that the old law required that the bill of exceptions should be sealed by the presiding judge; and, 3dly, that the bill in this case did not conform to the requirements of the law. He cited Mazange v. Slocum & Henderson, 23 Ala. 668; Clay’s Digest, 307, § 5; Eloyd v. Fountain, 17 Ala. 700;- Kitchen v. ¿oye, ib. 143; Haden v. Brown, 22 ib. 572; Kenan v. Starke & Moore, 6 ib. 773; 2 Bibb, 14; 1 Marsh. 587; Hall v. Hudson, 20 Ala. 284; Hudson v. Hudson, ib. 364; 4 Phil. Ev. (C. & H.’s Notes) p. 813.</p> <p>insisted, 1st, that the bill of exceptions was governed by the provisions of the Code (§§ 1315, 2333), which do not require the seal of the presiding judge; 2dly, that the bill was sufficiently sealed under-the old law; and, 3dly, that if it was defective, the appellant should be allowed to establish it.</p>

Heard before the Hon. Wade Keyes. This.bill was filed by Gray Little, the appellee, against David M. Russell; and its material allegations were, substantially, as follows: That on the 7th April, 1848, complainant purchased certain lands from one Blake Little, at the price of $10,000 to him in hand paid, and received from him a conveyance in fee for the same; that at the time of this purchase, and thence until after the happening of the matters hereinafter mentioned,…

Tried before the Hon. C. W. RapieR. BjectmeNT by Seneca Saltonstall and Louisa, his wife, against James Riley and Wm.

Tried before the Hon. Ales. McKinstry. The proceedings in these cases were instituted in the name of the commissioners of pilotage of tho bay and harbor of Mobile, on the… Held: that no penalty was incurred unless the boat had left the port of Mobile without making the registration prescribed. So far as this was a question of fact, the decision, even if erroneous, is not revisable in this court; and, so far as it is a question of law, the decision is undoubtedly correct.

<p>[APPLICATION POR PROBATE OP WILL OP MARRIED WOMAN.]</p> <p>1. Wife’s right to dispose by will of- her separate estate. — Where there is an agreement between, husband and wife, before marriage, that she shall have either the whole or a particular part of her personal property to her separate use, she may dispose of it by will, without the consent of her husband.</p> <p>2. Ante-nuptial agreement established on secondary evidence. — In this case, the probate of the wife’s will being resisted by the husband, the execution of an ante-nuptial agreement between them was established on the testimony of two witnesses, who had often seen and read it, in connection with evidence of the husband’s subsequent declaration that he had burned it; although there was evidence of the wife’s declarations, to several persons, that there never was any marriage contract between her and her husband; and although the witnesses who testified to its existence could not recollect the language of it, and did not agree as to its precise terms.</p> <p>3. Presumption contra spotialorem. — A husband, in resisting the probate of his wife’s will, can derive no advantage from any obscurity or uncertainty in the secondary evidence adduced of the contents of an ante-nuptial agreement between him and his wife, when the paper produced by him, on notice, is materially different from that to which the witnesses depose, and there is evidence of his declaration that ho had burned the marriage contract. The maxim, omnia presumuntar contra spoliatorem, applies with full force against him.</p> <p>■i. Party’s answers to interrogatories, admissibility of. — A party’s answers to interrogatories, under the statute in aid of discoveries in common-law suits, if his adversary declines to read them, cannot be considered by the court as evidence for him for any purpose.</p> <p>5. Emandment of cause on reversal of decree. — On the reversal of a decree of the probate court, disallowing the prohate of' a will, the cause having been heard before the judge without the intervention of a jury, although the appellate court might (Code, § 3034) render the decree which the probate court ought to have rendered, the safer practice is to remand the cause.</p>

' Tried before the Hon. C. W. Rapier. The record in this case shows the following facts : On the 16th March, 1852, James H. Saint, the appellee, commenced an action of assninpsit against John Bettis, on a promissory note for $56 12, dated March 24, 1846, and payable one day afterdate; but the writ was returned-by the sheriff “not found.” On'the 15th September, 1858, Saint instituted suit, by summons and complaint under the Code, against James B- Bettis, the appellant, as…

<p>Erroe from the Circuit Court of Dallas.</p> <p>Tried before the Hon. Nat, Cook.</p> <p>This action was brought by the plaintiffs in error, as heirs-at-law of Hume R. Field, deceased, against Thornton B. Goldsby, “ as well to try titles, as to recover damages for the detention, use and occupation of the south-west quarter of section eleven, in township seventeen, range eight, in the district of lands subject to sale at Cahaba”, and lying in Dallas county. The action was commenced in the spring of 1846, and the trial was had in November, 1852, The only plea was the general issue.</p> <p>On the trial, as the bill of exceptions discloses, the plaintiffs made out a prima facie case, by proving their ancestor’s title, their own title as his heirs-at-law, the defendant’s possession, the value of the rents-, &c.; and rested their case. The defendant then introduced a transcript from the records of the orphans’ court of Tuskaloosa, which is made an exhibit to the bill of exceptions, and which contains the following proceedings : ..</p> <p>On the 30th April, 1835, Constantine H. Perkins, as administrator of said Hume R. Field, deceased, filed his petition in said orphans’ court, praying an order of sale of the real estate of his intestate, which embraced the land now in controversy. 'This petition, which is sworn to, states, “that the heirs and distributees" of said estate are the following— that is to say, Nancy Field, relict and widow of said Hume R. Field, who resides in New London, in .the State of Connecticut; Harriet H. Perkins, daughter of said Hume R. Field, who resides in Williamson county, Tennessee; Eliza A. Perkins, who is the wife of petitioner; Edward R. Field, who resides in Pulaski, .Tennessee; Emily M. Royall, who is the wife of John H. Royall, who resides in the State of Tennessee; Mary F. Tarver, who is the wife of John A. Tarver; Jane M. Field, who is an infant within the age of twenty-one years; and Henrietta S. Field, who is an infant within the age of twenty-one years, and residing in New London, in the State of Connecticut.” The order of sale is prayed on the ground that, “owing to the number of heirs and distributees of said estate, the distance which many of them reside from the above-described lands, and the various separate parcels of said land, scattered in different sections of the State, said lands cannot be equally, fairly, and beneficially divided among the said heirs and distributees, without a sale thereof.”</p> <p>■ On the filing of this petition, it was ordered by the court “ that Henry A. Snow be appointed guardian ad litem to Jane M. Field and Henrietta S. Field, who are infants within the age of twenty-one years; and that citations issue to said John A. Tarver and Henry A. Snow, guardian as aforesaid. And it appearing to the court, from the affidavit of the petitioner, that said Nancy Field, Harriet H. Perkins, Edward R. Field, John H. Royall and Henrietta S. Field do not reside within the limits of this State, it is therefore ordered by the court, that publication be made in some newspaper printed in the town of Tuskaloosa, notifying the above-named legatees to be and appear before the judge of our said court, on Monday, the 15th day of June next, and defend against said petition, if they see cause.” But the record nowhere shows that the terms of this order were complied with.</p> <p>After two continuances by the administrator, the petition was heard on the 4th August, 1835, when the following decree was rendered: .“This day came on to be heard the petition of Constantine Perkins, administrator of the estate of Hume R. Field, to sell the real estate belonging to said estate; and due and legal notice having been given to all the heirs of said estate that were of age, and to the guardian of those that were minors; and the answers of said guardian, denying the allegations contained in said petition, being filed; and it appearing to the satisfaction of the court, by the depositions of Z. B. Snow and Robert Ellyson, that the tracts of land in the petition described, of which said Hume R. Field died seized, cannot be equally, fairly, and beneficially divided among the heirs and distributees of said estate, without a sale thereof: It is ordered and decreed, that” three persons, whose names are mentioned, “be, and they are hereby, appointed commissioners with full authority to sell the lands described in said petition”, which are particularly described in the order; “ the commissioners giving notice of the time and place of sale, by written advertisements set up at three public places in said county of Tuskaloosa, at least forty days before the sale, and publishing the same in one of the newspapers printed in the town of Tuskaloosa, for three weeks successively before the day of such sale, — sell said land on a credit until the first day of March, 1836,'requiring the purchasers to execute their bonds, with good security; and report their proceedings to this court to be holden after such sale.”</p> <p>The next entry, which is dated November 18, 1835, recites that the commissioners came that day, and made their report, which is set out at length in the minute entry, and which shows that Thornton B. G-oldsby had become the.purchaser of the quarter-section now sued for. The entry then proceeds, — “ And it appearing to the satisfaction of the court that the terms of said sale have been complied withj it is - therefore ordered and decreed by the court”, that the said commissioners make conveyances to the other-purchasers for the lands bought by them; “and it is further ordered and decreed, that the above-named commissioners do make unto the said Thornton B. Goidsby a title as aforesaid to the following described- land — viz.,'1 the south-west quarter of section eleven, in township seventeerf, and range eight, in the Cahaba land-district.”</p> <p>The defendant also offered in evidence the deed executed to him by -the commissioners, under this order.-</p> <p>“This evidence being before the jury, the court charged them, that the said proceedings of said orphans’ court, and the said deed, gave the defendant a title to the land sued for, and the plaintiffs could not recover; to which charge the plaintiffs excepted”, and which they now assign as error.</p> <p>contended,—</p> <p>1. That, on the death of Field, the lands of which he was seized and possessed in fee descended to his heirs, eo instanti; subject, however, to be divested by the action-of the orphans’ court, 1st, for the payment.of debts, or, 2dly, for the purpose of making a fair, equal, and beneficial division among them.</p> <p>2. That the orphans’ court is one of limited and special jurisdiction, and has no power to order a sale'of a decedent’s lands, except under and by virtue of the statute. — Olay’s Digest, 224, § 16. The court cannot, of its own motion, exercise this extraordinary jurisdiction; but its record must affirmatively show that the facts specially set forth in the statute were alleged and proved. — Bishop’s Heirs v. Hampton, 15 Ala. 767; Taliaferro v. Bassett, 3 ib. 670; McCartney v. Calhoun, 11 ib. 110, 119; Thatcher v. Powell, 6 Wheat. 119; Williams v. Peyton’s Lessee, 4 ib. 77; Borden v. Fitch, 15 Johns. 141; Dakin v. Hudson, 6 Cowen, 224; Blann v. Grant, 6 Ala. 110.</p> <p>3. The statute requires the administrator to set forth, in addition to the ground on which the sale is sought, the names of the heir?, “particularly stating which. are of age, and which are infants or femes covert.” Unless this is done, the court does not acquire jurisdiction. — Griffin’s Heirs v. Griffin’s Executors, 3 Ala. 623; Cloud and Wife v. Barton, 14 ib. 348; Blann v. Grant, 6 ib. 110. The petition in this case does not comply with the statutory requisition.</p> <p>4. The statute further requires citations to be issued and served at least forty days before the order can be granted, and publication to be made against non-residents. The record is defective in these particulars, and the recitals in the decree cannot aid it. — Bloodgood v. Hartley, 16 Ala. 233; Butler v. Butler, 11 ib. 668; Molett v. Kenan, 22 ib. 484; Starr v. Scott, 8 Conn. 480; Wattles v. Hyde, 9 ib. 10.</p> <p>5. Before the.court can take jurisdiction to order a sale, when the allegations of the petition are denied by the answer, it must be satisfied by proof, taken by deposition as in chancery cases, and filed in the cause; and the mere recitals in the record are not sufficient. — Clay’s Digest, 225, § 19; McMekin v. Bobo, 12 Ala. 273; Hill v. Hill, 9 ib. 793.</p> <p>6. It has been held, under the other branch of the statute, where the sale was ordered for the payment of debts, that the proceeding was in remj but those decisions do not cover this case. Here, the heirs are the only persons interested; in the other case, they have no interest, if the property is needed for the payment of debts. No judgment can be held conclusive on a party, until he has notice; and the statute is explicit in requiring notice to the heirs.- — McCurry v. Hooper, 12 Ala. 823; Blann v. Grant, 6 ib. 110; Jennings & Graham v. Jenkins, 9 ib. 285.</p> <p>7. It is somewhat difficult, in a case like this, to ascertain what is necessary to be done to divest the title of the heirs, as the authorities are slightly conflicting. Wallace v. Hall’s Heirs, 19 Ala. 367, and the authorities there cited, show that the title of the heirs is not divested, until a final decree ordering conveyances to be made to purchasers. The record, then, must show that all things, required to be done before this decree, were done. The statute (Clay’s Digest, 225, § 24) requires notice of the sale to be given by the administrator or commissioners, by advertisements posted up at three or more public places in the county in which the lands lie, for at least forty days before the sale, and by publication in some newspaper for three successive weeks before the sale.— Wyman v. Campbell, 6 Port. 245; Gantly’s Lessee v. Ewing, 3 Howard’s (U. S.) R. 707; Hawkins v. Kemp, 3 East, 410.</p> <p>8. The record nowhere shows that any citations were issued, except by a general allegation that due and legal notice was given; and nothing in the record shows that any parties appeared. The authorities above cited show that this was essential to give the court jurisdiction, and that it ought distinctly and affirmatively to appear of record.</p> <p>9. The court is nowhere directed to order what notice of the time and place of sale shall be given, but the statute itself prescribes the notice. In Wyman v. Campbell, 6 Porter, 245, it is conceded that, unless the commissioners pursue the terms of the order, the sale would not be valid. Is not the statute as imperative as the order of the court ? and are not the commissioners as -much bound to pursue its terms ? It positively appears that the commissioners, in this case, did not give the notice required by the statute, in the county in which the lands lie. Is not the purchaser bound, at his peril,-to see whether the notice required by the statute has been given? Why is he not as much bound to take notice of this, as to see that the petition sets forth sufficient grounds to give the court jurisdiction, or to know that an administrator cannot sell property at private sale? Any act, in contravention of a positive statute, is not merely voidable, but void. — Fambro v. Gantt, 12 Ala. 298; Ventress v. Smith, 10 Peters, 161.</p> <p>The case of Wyman v. Campbell, cited for defendant, was decided under the act of 1820, which does not require the names of the heirs, &c., to be set forth; and the dicta in the other cases cited are based upon it. The case of Brown v. Lanman, 1 Conn, 469, has been overruled by the later cases above cited,</p> <p>argued,—</p> <p>1. That the petition substantially complies with all the -requisitions of the statute, even if the jurisdiction of the court depended on the statement of the ages of the heirs. The statement that two of the heirs are minors, is an implied statement that the others are not, on the maxim “inclusio unius est exclusio alterius.” This is the plain and obvious meaning of the petition, and any other construction of it would be hypercritical. The orphans' court was created for the mass of the people, who are unskilled in the technical language of the law, and who use words in their common and ordinary acceptation; and the statute, under which this sale was made, is remedial. To construe such proceeding by strict, technical rules, requiring “ certainty to a certain intent in every particular,” would defeat the object of the statute, and render it worse than useless to the great majority of those for whom it was intended.</p> <p>2. That the jurisdiction of the court was not dependent on the statement in 'the petition of the ages of the heirs, but attached on the filing of the petition by the administrator, stating one of the statutory grounds for ordering a sale; that the proceedings wore in rem against the estate, and therefore valid without personal notice; and that the several objections urged against their1 validity, were mere irregularities or errors, which could not affect them in a collateral proceeding. — Wyman v. Campbell, 6 Porter, 245; Duval's Heirs v. McLosky, 1 Ala. 708; Perkins v. Winter, 7 ib. 864; Duval's Heirs v. P. &M. Bank, 10 ib. 636; Bishop’s Heirs v. Hampton, 15 ib. 766; Thompson v. Tolmie, 2 Peters, 157; G-rig-non’s Lessees v. Astor, 2 Howard’s (U. S.) R. 342; Brown v. Lanman, 1 Conn. 469; 4 Ohio, 129.</p>

<p>Appeal from the Chancery Court of Cherokee.</p> <p>Heard before the Hon. A. J. Walkee.</p> <p>This bill was filed by John C. West and wife, the appellants, against John.M. Hendrix and W. W. Jackson; and its material allegations were the following : That on the 26th June, 1847, complainant Sarah, who was then unmarried, and whose name at that time was Sarah Smith, was seized of a certain forty-acre tract of land, and said John C. West was at the same time indebted to said Hendrix, by open account, in the sum of $53 71; that said Hendrix, pretending to be anxious to secure said debt, proposed to complainant Sarah that, if she would convey said tract of land to him, he would give West until the first day of January then next to pay said debt; that complainant Sarah assented to this proposal, and executed to said Hendrix a deed for said land, taking from him at the same time a bond, of which the following is a copy:</p> <p> </p> <p>am held and firmly bound unto Sarah Smith, in the just and full sum of one hundred dollars, good and lawful money, for the payment of which I bind myself, my heirs and assigns forever. In witness whereof,' I hereto set my hand and seal, this 26th day of June, 1847. The condition of the above obligation is such, that whereas the said John Hendrix has this day bought of the said Sarah Smith a certain tract of land, known as the south-west fourth of the north-east quarter of section No. 6, in township No. 10, range No. 10, in the Coosa land-district, for and in consideration of the sum of $53 71, to her in hand paid : Now, if the said John M. Hendrix shall, on the payment of the sum of $55 91 on or before the first day of January next, re-convey the said tract or parcel of land to the said Sarah, by making such title as he may possess by virtue of her deed of this date, then the above obligation to be void”, &c. (Signed by said Hendrix, and attested by Polly Wester.)</p> <p>The bill alleges “ that said deed and bond were mutually executed for the purpose of securing to said Hendrix the .payment of said sum of money due to him by said West, and for no other purpose, — that being the way, according to the representations of said Hendrix, in which said security could best be given”; that complainants are ignorant of the force and effect of legal instruments, and confided in the honesty of said Hendrix, who himself drew up the writings; that Hendrix, when the money became duo, expressed a willingness to wait until complainants could procure it, if within a short time; that complainants were married on the first day of March, 1849; that in March, 1849, he instituted suit against them to recover possession of said land, and recovered a judgment for it at the Pall term of the court; that Jackson claims to have bought said land from Hendrix about the time said money became due; and that on the first day of June, 1851, complainants tendered to him the “full amount_ of principal and interest due on said obligation”, and demanded a re-conveyance of said land, which he refused.</p> <p>The prayer of the bill is, “ that your Honor, upon final hearing, may decree either that said Hendrix’s deed to said Jackson, if any such appears to have been made, be canceled, and the sale set aside, so far as complainants’ rights are concerned, and that said Hendrix re-convey said land to complainant Sarah, on payment of said money and interest; or, if it should seem more equitable to your Honor, that said Jáckson be decreed to convey, said land to said Sarah, on payment of said money and interest”; that the said judgment at law be enjoined; and for other and further relief.</p> <p>Hendrix and Jackson filed a joint answer, but it is unnecessary to notice the allegations which concern the latter. The answer admits all the allegations of the bill, except as to the purpose and intent with which the deed and bond were executed, and the alleged tender to Jackson; and avers that the transaction between Hendrix and complainant Sarah ovas an absolute and unconditional sale and purchase of the land, in absolute payment of the debt due from West to Hendrix, and that the execution of the bond was a mere voluntary act on the part of Hendrix, to allow complainant Sarah to repurchase the land on the terms therein specified. The answer alleges, also, that said tract of land was entered by said West, in the name of said Sarah Smith, by whom he had several children, with money belonging' to said Hendrix; and that, on the latter remonstrating with West about it, the land was finally sold and conveyed to him by said Sarah, in payment of the money due from West.</p> <p>A demurrer to the bill, for want of equity, was overruled by the chancellor; and the cause was submitted for final decree, on bill, answer, exhibits and proof. The witnesses examined on behalf of the complainants, were Polly Wester, James Wester, Joseph Reed, D. C. Webb, and John Angle; and on the part of the defendants, John S. Wilson, A. Wester, Joseph Smith, and George Wester. The substance of their evidence may be thus stated :</p> <p>Polly Wester. — “ Mr. Hendrix and the said Sarah came to my house together, in June, 1841; and Mr. Hendrix asked me to sign a bond with him. Upon my stating that I was no scholar, and did not wish to sign any paper, Hendrix replied, ‘There is no harm in it; I am taking a lien on the said Sarah’s land, or certificate, to secure an account I have on John C. West; and the bond is only for the forthcoming of the certificate. If the money on my account is paid the first day of January coming, or any time through the winter, I am no ways particular.’ The demand he had was in writing, and he called it an account; I do not know what it was for. Hendrix brought the said certificate and bond together, and, whilst in my presence; gave the said account to the said Sarah. I know of no proposition or conveyance other than I have stated. I did not hear of any deed from said parties. Hendrix stated that he had taken a lien on said Sarah’s land •to secure the payment of his account against West, and gave her the bond and the account. I witnessed said bond. I never signed any other papers for the said parties, either on that day or any other day. I did not see the said Sarah give Hendrix any paper.’ Hendrix had a paper when he came to my house, which he said was a certificate of the said Sarah’s land.” [Cross-examined.'] “ I am a sister of John C. West. I cannot read or wifite. Hendrix read said bond to said Sarah. I am certain he told her that the bond was for the forthcoming of said certificate, provided the money on his account was paid by the first day of January, or during the winter; I am not mistaken about this.”</p> <p>James Wester.- — “ I had (?) a conversation with Hendrix at the steam-mill in Cedar Bluff; I believe it was in the spring . of 1848, — -it was the spring after he got the deed from Sarah Smith. Hendrix came to John West, and.,asked him if he had his money for him yet. West said the money was owing to him by the steam-mill folks, but he had not got it. Hendrix said he was- obliged to have money, and he thought he could get money by putting the land in pawn to McElrath. West told him, if he could get the money for twelve months by letting McElrath have the land in pawn, with the right reserved for him to redeem it, that he thought he could have his money for him in that time. Hendrix said he would do' it, — that he did not want (the land ?), that all he wanted was his money, for he was needing money. The land was worth, in June, 184T, §150 to §200. I do not know that he then told me what money it was he took the deed to secure. Hendrix told me, after this suit commenced, that he took a lien on the land from Sarah Smith to secure a debt that West owed him for money he had used of a co-partnership transaction between them. John West was in possession of the land, with Sarah Smith, at the time the deed was made. She kept house for him; after which he married her,’ and has been in possession of the land ever since the marriage. It. was notorious in the neighborhood that they claimed the land as theirs, and always contended that Hendrix only had a lien on it. I had a conversation with Jackson, after he bought the land, and asked him if he did not know, when he bought it, that he would have a fuss about the title. He said that he knew it, but it made no difference, — that Hendrix was bound to put him in possession, and if he did not it was no trade.”</p> <p>Joseph Reed. — “Heard a conversation between West and Hendrix at the steam-mill at Cedar-Bluff in Cherokee county. West was to have the money for him by a certain time, but witness does not now recollect at what time. Heard.Hendrix say, at another time, that he took a deed from Sarah Smith to secure the money of his that West had used to enter the land with; but witness does not recollect the time and place of this conversation, but it was after the deed was made. The land was worth, in 1841, $100, or thereabouts. Complainants were living on the land at the time the deed was said to be made to Hendrix, and at the time Jackson bought it of Hendrix, and claimed it as their own, which was notorious in the neighborhood.”</p> <p>JD. C. Webb. — “I was present at one time, and saw West have a roll of money, but did not see how much there was. He said to Hendrix, that he wanted him to sign a deed to that land, and that he had the money to pay him. When West first began to talk, Hendrix turned off and left, without saying any thing; and West then called on me to witness.”</p> <p>John Jingle was examined as a witness for the defendants, but his deposition was read in evidence by the complainants. He testified, “ that West told him that he had met Hendrix somewhere between his (West’s) house and steam-mill; that he does not recollect all that West said, but it was about a mortgage or deed of trust on the land that Hendrix wanted to secure himself, — that Hendrix wanted to sell the land, and to give West twelve months to redeem it, and that West told Hendrix to go Sarah, or not to go to Sarah, witness does not recollect which; that he heard West say, some time afterwards, that he would not give Hendrix possession, because he had practiced'a fraud on Sarah by obtaining a deed when it was represented as á mortgage; that West said he objected to Hendrix selling the land to Jackson, because he thought Jackson would not lét him redeem it; that Hendrix said he would sell the land to McElrath, and that West should have one year to redeem it in, and that Sarah was to have the land whenever he got the money that he claimed from West.”</p> <p>Joseph Smith. — “ Lived on said land about one year, in 1848 or 1849, and built the house in which he lived. Applied to said John C. and Sarah West for leave to reside on said land, and they told him that he must see Hendrix in order to get leave, — that the land was the said Hendrix’s, unless he (West) paid him some money by a certain time; that Hendrix had given him a certain time to raise the money, and that, if he raised it, Hendrix was to let him have the land.”</p> <p>George Wester testifies, that West, at and before the time when the land was entered, was insolvent.</p> <p>A. Wester testifies, that West told him “ he intended tendering Hendrix the sum of money for the land in controversy, but that he (Hendrix) should not have the said money”; and that he heard Hendrix say, at a time not recollected, “ that he had taken a deed to the land in controversy in payment of what West owed him, and that the land was to be West’s if he redeemed it at a given time.”</p> <p>John S. Wilson testifies, that he once had a deed in his possession for the land in controversy, executed by Sarah Smith to said Hendrix; that the deed was given to him by Hendrix, to be recorded, witness then being clerk of the county court of Cherokee; “ that he presented said deed to. said Sarah, who acknowledged it, stating to Hendrix, who was present at the time, that she desired him not to sell said land.” He also proves the handwriting of Hendrix to a receipt, appended to an account against West showing a balance of $53 71, which was in these words : “ Eec’d the above, fifty-three dollars and seventy-one cents, in full, of J. C. West, pr. Sarah Smith.” (signed) “ J. M. Hendrix, June 26, 1847.”</p> <p>The chancellor, on final hearing, dismissed the bill, and his decree is now assigned for error.</p> <p>contended,—</p> <p>1. That the deed and bond for title, in connection with the sole fact that the deed was founded on a pre-existing debt, upon their face constitute a mortgage. — Hinson v. Partee, 11 Humph. 587; Marshall v. Stewart, 17 Ohio, 356; Bacon y. Brown, 19 Conn. 29; Keinp y. Earp, 7 Iredell's Eq. R. 167; Hammond v. Hopkins, 3 Yerger, 525. In all the cases decided by this court, bolding that a bill of sale, with a de-feasance, is not on its face a mortgage, the payment of the purchase money and interest is not stipulated; with the single exception of McKinstry y. Conly, 12 Ala. 618, where other ■words in the defeasance clearly showed its character.</p> <p>2. That the written contract, controlled and explained by the parol proof, constitutes a mortgage. The undisputed facts of the case show all the indicia of a mortgage: there was an existing debt due, not from the grantor, but from a third person; Hendrix told the witnesses to the bond,, at the time it was executed, that he was taking a lien on the land to secure the debt which West .owed him; the possession of the land remained in the grantor, without any contract to pay rent; and the land was worth three times the amount of the purchase money stated in the deed. — Turnipseed v. Cunningham, 16 Ala. 508; Eiland Y. Radford, 7 ib.724; Russell y. Southard, 12 Howard, 189; Hudson y. Isbell, 5 Stew. & P. 77; May v. Eastin, 2 Porter, 426.</p> <p>'■ 3. That parol proof is admissible to show that the transaction was intended as a mortgage. — Eiland y. Radford, 7 Ala. 724; Hudson y. Isbell, 5 Stew. & P. 77; McKinstry v. Conly, 12 Ala. 678; Robinson y. E-arrelly, 16 ib. 476; Russell y. Southard, 12 Howard, 139.</p> <p>4. That the delivery and receipt of West’s account, at the time the bond and deed were executed, did not extinguish the debt; and that the declarations of Hendrix, at the time of the transaction and subsequent to the law-day mentioned in the bond, showed that he considered the debt against West as still subsisting. — Turnipseed v. Cunningham, 16 Ala. 508; Locke’s Executor v. Palmer, 26 Ala. 322; Russell v. South-ard, 12 Howard, 139; Brown y. Dewey, 1 Sandford’s Oh. R. 67;' Bacon y. Brown,. 19 Conn. 34.</p> <p>5. That, if the evidence even left it doubtful whether a mortgage or a conditional sale were intended, it would be held a mortgage. — Locke’s Executor v. Palmer, 26 Ala. 322, and cases there cited.</p> <p>insisted,—</p> <p>1. That, admitting that the transaction, on the face of the deed and bond, might be construed either a mortgage or a conditional sale, its true character was to be determined by the intention of the parties, as ascertained from the attendant circumstances. — Poindexter v. McOannon, 1 'Dev. Eq. R.' 372; Freeman v. Baldwin, 13 Ala. 246; McKinstry v. Oonly, 12 ib. 678.</p> <p>2. That there can be no mortgage, where there is no mortgage debt to be secured. — Conway’s Executors v. Alexander, 7 Cranch, 218; 2 Edwards’ Ch. R. 143; McKinstry v. Conly, supra.</p> <p>3. That the evidence shows that the debt against West was extinguished, and that no new debt was created. — Powell on Mortgages, vol. 1, p. 335.</p>

<p>Appeal from the Circuit Court of Sumter.</p> <p>Tried before the Hon. Geo. D. Shoetbidge.</p> <p>This action was brought by Gray Little and Patrick S. -Cromwell, the appellees, against James Hair and Sterling H. Jones, “to recover damages for breaking and entering the plaintiffs’ close, and carrying off sundry slaves, mules, and wagons, the property of plaintiffs.” The defendants pleaded, jointly and severally, in short by consent, not guilty, with leave to give in evidence any special matter of defence. All the evidence in the case is set out in the bill of exceptions; but it is only necessary to notice particularly the facts bearing on the points here decided.</p> <p>The plaintiffs claimed the slaves and other property under a purchase from one Blake Little, by bill of sale dated May 29, 1848, which purported to be made “ in consideration of the sum of 132,000 in hand paid”; while the defendant Hair claimed the slaves under a purchase from said Blake Little, by bill of sale dated May 26,1848, which recited a consideration of |3,539 55. The plaintiffs offered in evidence the deposition of Henry G. Little, who was a son of Blake Little, and the subscribing witness to the conveyance from said Blake Little to the plaintiffs. The fourth interrogatory pro-: pounded to this witness, and the answer thereto, were as follows : “ Int. 4. — 'What did Gray Little and Patrick S. Cromwell give or do, or what were they to do, or what did they assume to do, in consideration of the said conveyance and bond ? If they assumed the payment of debts for the said Blake Little, please state what amounts they assumed, and to whom they were payable. What kind of a sale was it ? What was said at the tifne, or at any other time, about its being a mortgage or deed of trust”? Answer. — “ They were to give about the sum of $32,000. They assumed to pay debts in favor of Bliss, Russell, Mrs. . Vandegraff, Ash, Abner Hearts, Steele, and others not recollected. ' The amounts also not recollected. I heard the sale made, and never' heard any thing . said about a mortgage or deed of trust.” The defendants objected to that portion of this answer which is italicized, on the ground that it showed a consideration different from and inconsistent with the consideration recited in said bill of sale”; but the court overruled their objection, and 'they excepted. This witness further testified, “that he saw no money paid at the time the bill of sale was given, and heard no agreement to pay money; that he saw Gray Little, a few days after the sale, pay Blake Little $700 or $800, blit he does not know whether it was in consideration of the sale or not.”</p> <p>The plaintiffs then offered in evidence the deposition of said Blake Little, after proving the execution of a release from themselvps to him, which was attached to the deposition. This deposition -was taken on interrogatories and cross-interrogatories; and the defendants, before filing their cross interrogatories, reserved the following exceptions to the competency of the witness : “ The defendants except to the competency of Blake Little to impeach any contract made by him with the defendant Hair; also, to prove that, subsequent to his conveyance to Hair of the slavesmentioned in the interrogatories, he conveyed them to another or others; also, to his competency to prove the validity of such subsequent sale and conveyance, and the invalidity of his sale to Hair; also, to his-competency to prove any facts tending to any of said foregoing matters; and defendants except to each and every interrogatory tending to obtain such testimony.” The defendants objected to the reading of the deposition of this witness, “ on the ground that it showed the witness to be incompetent from interest; but the court ruled that he was competent, and allowed the deposition to be read; to which the defendants excepted.”</p> <p>Slake Little testifies, among other things, that he and Hair were joint administrators on the estate of one Jenkins; that he purchased certain negroes, at a sale made by them, to the amount of about §3,000, but had given no note for them; that Hair had filed a bill in chancery against him, for the purpose of having the amount coming from the estate of Jenkins to Mm (Little) settled upon his (Little’s) wife; that Hair came to his house, with the bill, to get him to acknowledge service, and said that they would prefer to have the negroes, and to let the money go to pay his debts; that it was agreed that he should keep the negroes until the chancery suit was ended, at which time those not settled on his wife were to be returned to him, and he was to pay the balance due by him on the purchase of the negroes at the sale; that under these circumstances he gave Hair the bill of sale; that the negroes were not produced, no particular price was put on them, and there was no change of possession. He further testifies, that his conveyance to the plaintiffs was made a few days before he left the State, and that they paid him §800 on the day of 8ale; and he appends to his deposition, .as an exhibit, an obligation executed to him by said Blake Little and Cromwell, on the 31st May, 1848, by which they bound themselves, in consideration of their purchase on the 29th May of all his land, negroes, and other property, to pay outstanding debts against him to the amount of §35,000.</p> <p>The plaintiffs then proved that they had paid all the debts specified in this obligation, except two small ones amounting to about §450, as to the payment of which there was no proof. They then introduced one Hiram Steele as a witness, who testified that, at the time the conveyance to plaintiffs was made, he and one Buffington, since deceased, were overseers for said Blake Little on his two plantations; “ that said Little did not tell him he had sold the property he was over-seering, nor that he was going away not to return any more, but told him that he was going to the springs for his health;” that plaintiffs afterwards agreed to pay his wages, and he continued to act as overseer for them; and that he saw two of the negroes now in controversy on the plantation which Buffington was superintending. “ The plaintiffs then asked said witness, whether he had heard said Buffington, while in possession of the property, and after said Blake Little had left, say under whom he was holding the possession of the plantation and slaves over which he was overseer. To this question, 'and to the answer thereto, the defendants objected; but the court overruled their objection, and allowed the witness to anáwer; who thereupon stated, that said Buffington said, he was overseer for Gray Little and Patrick S. Cromwell, — that he had had one master, and now he had two’; and to this ruling of the court the defendants excepted.”</p> <p>“ The plaintiffs introduced one Tureman as a witness, who proved that, in November, 1848, he was in the employment of the defendant Hair, who was a practicing lawyer; that one Sunday evening in that month, the next day being the first day of the Pall term of the circuit court of Sumter, one of the negroes now sued for came to Hair’s house, with a letter informing him that the negroes sued for would be sent to Mississippi the next day by the plaintiffs, to be sold, unless he came up and attended to his own interests; that- witness and said Hair started off immediately to the house of Mrs. Little, said Blake’s wife, after the negroes sued for; that Hair left directions for a wagon to follow after them, to bring down the negroes; that 'they got fresh horses at Gainsville, and arrived at Mrs. Little’s about midnight; that Hair went into the house, and told Mrs. Little he had come for said negroes; that the negroes were all inside of Mrs. Little’s yard, and said Hair, assisted by witness and the defendant Jones, brought them away; that Mrs. Little was living on the plantation on which said ■ Blake resided at the time he left, and is a sister of said Hair’s wife; that they took some mules and horses from the stables on the premises occupied by Mrs. Little, and used them in bringing said negroes away, until they met Hair’s wagon, when they were sent back; and that they got back to Livingston about 10 o’clock the next day. The plaintiffs then proved the value of the negroes sued for, both at the time they were taken and since, but the proof showed that their value since they were taken was much greater than at that -time; and the evidence of their value, at the time of the taking and since, was conflicting.’</p> <p>The defendants, after giving in evidence Hair’s bill of sale for tbe negroes, read the deposition of Mrs. Little, the wife of Blake Little, who testified, that said Blake was indebted to Hair, to the amount of about $8,300, due January 1, 1847, for property sold by him as administrator of one Jenkins; that the slaves in controversy were sold and conveyed by said Blake to Hair, in her presence, on 26th May, 1848, in payment of this debt; that a fixed price was put upon each; that the sale was absolute and unconditional; that Hair hired the negroes to said Blake, after the sale, and they continued in said Blake’s possession; that Blake left the country a few days after the sale; that she was in actual possession of the . negroes when Hair took them, and of the premises and stables, which belonged to Dr. Allgood; that the plaintiffs never had possession of either the premises or the slaves. They also offered the deposition of Mrs. Beavers, which corroborated the testimony of Mrs. Little; the deposition of Robert' E. Smith, tending to prove the bona f des of Hair’s purchase; the depositions of Mrs. Buffington and Dr. Allgood, corroborating Mrs. Little’s testimony as to the possession of the slaves; evidence showing that the premises, on which the alleged trespass was committed, did not belong to the plaintiffs; evidence showing that Blake Little was insolvent at the time the conveyance to the plaintiffs was executed, that suits were pending and judgments recovered against him, and that he left the State under the pretence that he was going to.some springs for his health; and a transcript from the records of the orphans’ court, showing that Hair, on final settlement of the estate of Jenkins, was charged with the amount of Blake Little’s purchases. •</p> <p>The plaintiffs propounded interrogatories under the statute to Hair, and read his answer to the second interrogatory as rebutting evidence; in which answer Hair states that, at the time of his purchase from Blake Little, he hired the slaves to Little, by a written contract, for the sum of $10, until the estate of Jenkins should be settled. The defendants read in evidence said Hair’s answers to the other interrogatories, in which he stated that he purchased the slaves from Little, and paid him a full and bona fide consideration for them. '</p> <p>This is the substance of all the evidence in the cause; and the bill of exceptions states, that, “ among other questions in the cause, were these : first, whether the sale of the negroes by Blake Little to said Hair was fraudulent, either in law or fact; and-, secondly, if it was, whether the plaintiffs were subsequent bona fide purchasers of the same negroes from said Blake.”</p> <p>“The court charged the jury, among other things,—</p> <p>“ 1. That if either party alleged fraud in the conveyance under which the other claimed, the burthen of proving it lay on the party alleging it; but, after that attack was made, and the conveyance impeached, it devolved on the party setting-up the conveyance to show that it was"bonafi.de and for a fair consideration.</p> <p>“ 2. That, ordinarily, if the consideration of a conveyance is proved to be different from or inconsistent with the consideration recited in it, it is a badge of fraud; but that this ■rule only applies where the consideration proved is less or greater than that recited,.and does not apply where a money consideration is expressed, and something else of equal value is proved to have been paid or promised.</p> <p>“ 3. That if the jury should find for the plaintiffs on the ground of title, the measure of damages would be the highest value of the slaves at any time between the taking and the trial; that, in addition to this value, they might allow interest thereon, or might look to the value and hire as some guide in coming to a conclusion, but were not bound by them; and that, in addition to the damages thus ascertained, the jury might, if the taking was with circumstances of aggravation, give smart money, or exemplary damages; and playfully remarked, in the way of illustration, 1 such as would teach the old gentleman not to violate the Sabbath, nor injure his health by riding in the night, nor interfere with the rights of others.’ ”</p> <p>The court also charged the jury, at the request .of the plaintiffs,—</p> <p>“1. That if Hair’s purchase on the 26th May was valid, and he then hired the negroes to Blake Little from that time until the estate of said Jenkins should be settled up; and if said Little, before the termination of said hiring, sold them to plaintiffs, and gave them possession, — they became entitled by the purchase to the possession and service of said negroes until the estate of Jenkins was settled up; and that if Hair, in the meantime, took the negroes from plaintiffs’ possession forcibly, or without their consent, he was guilty of a trespass therein, and is liable to plaintiffs to the extent of the value of the services of the negroes for the remainder of the term for which they were hired; and that the jury may, in their discretion, if the taking was with circumstances of aggravation, add smart money to the actual damage.”</p> <p>The defendants excepted to each one of these charges; and they now assign them as error, together with the rulings on the evidence to which exceptions were reserved.</p> <p>made these points :</p> <p>1. To enable the plaintiffs to recover, it was necessary for them to prove that they were purchasers for valuable consideration and in good faith, and that Hair was not; and to do this, it was necessary for them to prove, among other things, the consideration expressed in their conveyance. — Eddins v. Wilson, 1 Ala. 231; Bryant v. Hall, 21 ib. 264. The consideration expressed, was an executed, money consideration; while the consideration which the evidence established, was not money, and was executory. The objection to this evidence, therefore, ought to have been sustained; for, when a conveyance is impeached for fraud, by a creditor or purchaser of the grantor, the party claiming under it will not be allowed to prove, in support of it, any other consideration than that expressed. — Murphy v. Br. Bank, 16 Ala. 90; Eckles & Brown v. Carter, 26 ib. 663; Sewall v. Baxter, 2 Md. Ch. Decisions, 447; Betts v. Union Bank, 1 Har. & J. 175; Hildreth v. Sands, 2 Johns. Ch. 35; Jones v. Sasser, 2 Dev. & Bat. Law R. 452; 2 Phil. Ev., (C. & H.’s Notes,) p. 369; 4 ib. 619, n. 369. The rule recognized by this court in the two cases above cited, and by the courts of Maryland, New York and North Carolina, is in exact conformity with the English decisions, and is founded on good sense, good morals, and public policy; and the facts of this case peculiarly show the necessity for adhering to it, whenever a conveyance is assailed as having been fraudulently made.</p> <p>The case in 7 Pick. 533, cited by the counsel for the appellees, is not sustained by any authority. The cases in 3 Watts, 16 Wendell, and 4 Porter, were between the parties to the conveyance, and therefore within the rule adopted in Eckles & Brown v. Carter, supra. The case of Graham v. Lockhart, 8 Ala. 9, proceeds on the ground that the evidence offered did not vary the quality of the consideration, and is in exact conformity with the general rule.</p> <p>2. Blake Little was an incompetent witness from interest. He was interested in sustaining the conveyance to the plaintiffs, and their release did not restore his competency. — Wood v. Braypard, 9 Pick, 322; Woods v. Skinner, 6 Paige, 76, and cases cited on page 81. If the witness spoke the truth, his interest was not balanced; the sale to Hair not being real, but intended to secure a benefit to Little’s wife. — Jones v. Hoskins, 18 Ala. 489.</p> <p>3. The declarations of Buffington, although he was in possession of the property, ought not to have been admitted in evidence. The plaintiffs themselves had proved that his possession was acquired as overseer of Blake Little; and the character thus given to it was to be presumed to continue until the contrary is shown. — Powell v. Knox, 16 Ala. 370. The contrary could not be shown by his declarations; for the effect of such evidence would be, to prove a contract between him and the plaintiffs, or between them and Blake Little. Mims v. Sturdevant, 23 Ala. 664.</p> <p>4. The first charge given by the court, of its own motion, is erroneous. The plaintiffs were bound to prove, to entitle themselves to a recovery, not 'only that Hair’s purchase was fraudulent in law or in fact, but that they were purchasers for a valuable consideration and in good faith. The burthen of proof was on them, as plaintiffs, not only to impeach Hair’s purchase, but to prove the bona Jides of their own. — Eddins v. Wilson, 1 Ala. 237; Nolen v. Gwyn, 16 ib. 725; Jewett v. Palmer, 7 Johns. Ch. 65; Bryantv. Hall, 21 Ala. 264; White & Tudor’s Leading Cases in Equity, vol. 2,parti, pp. 112-13.</p> <p>5. The second charge given was erroneous. — Brackett v. Wait, 6 Vermont, 411; Borland v. Walker, 7 Ala. 269; 11 Sm. & Mar. 469.</p> <p>6. The third charge given is erroneous for several reasons. 1. Because it did not lay down the measure of actual damage correctly. The value of the property at the time of the taking, with interest on that value, is the measure of actual damage; and no other damages for the detention or conver-’ sioncanbe given. — 2 Greenl. Ev. (3d ed.) § 253; 1 App. (M.) 361; 20 Conn. 211; 4 Blackf. 348; Sedgwick on Measure of Damages, 549. 2. Because it authorized the jury to impose exemplary damages, which were not allowable. — 2 Greenl, Ev. (3d ed.) § 253, note 2. If, however, such damages are recoverable as a general rule, there was no evidence in this ease which authorized their recovery. — 14 Ala. 698; 4 Blackf, 348; Sedgwick on Damages, 549. 3. Because that portion of the charge which related to exemplary damages, was calculated to prejudice the jury against Hair. 4. Because it assumed that Hair had violated the Sabbath, which was a question for the determination of the jury; that Hair was an “ old gentleman,” when there was no evidence of the fact; that he had injured or would injure his health by riding in the night, when there was no evidence to that effect; and that he had violated the rights of others, — the very question which the jury were to try. — Hollingsworth v. Martin, 23 Ala. 591; Whitsitt v. Slater, ib. 626. 5. Because the charge should have been restricted to Hair’s liability.</p> <p>7. The first charge given at the request of the plaintiffs, was erroneous for several reasons, but principally because it asserts that if Little, while holding the slaves under a contract of hiring, sold them to the plaintiffs, and delivered the possession to them, the plaintiffs thereby acquired Little’s right to the unexpired term, and that Hair, by taking them without their consent before the expiration of the term, became a trespasser. The sale by Little to the plaintiffs, accompanied by delivery of possession, was a conversion, and a breach of his contract of hiring, and authorized Hair to take peaceable possession wherever he could find them; and since the proof showed that he did take them peaceably, he could not be a trespasser. — Story on Bailments, §§ 396, 413; Sargent v. Gile, 8 N. H. 325; Nelson v. Bondurant, 26 Ala. 341; Sanborn v. Coleman, 6 N. H. 14; Abney v.' Kingsland, 10 Ala. 365; Hooks v. Smith, 18 ib. 342; Moseley v. Wilkinson, 24 ib. 416; Tucker v. Magee, 18 ib. 104; Earrant v. Thompson, 16 E. C. L. R. 62; 3 Stark. Ev. 1493. The hiring of a slave is, in many respects, analogous to a leasing of land; in which caso, if the tenant convey in fee, it is a disseizin, which authorizes the landlord to enter, or to bring trespass or ejectment, — 3 Peters, 49; 7 Wheat. 107; 1 Johns. Cases, 36, 43; 5 Cowen, 134; 5 Peters, 402.</p> <p>contended,--</p> <p>1. That the evidence of Henry !&. Little only showed that the money mentioned in the consideration clause of the deed was not paid in fact, but only agreed to be paid; and that parol evidence is admissible for that purpose, even when the conveyance is impeached for fraud. — Eckles & Brown v. Carter, 26 Ala. 563; Johnson v. Boyles,, ib. 577; Burbank v. G-ould, 15 Maine, 120; McRea v. Purmort, 16 Wend. 460; Bullard v. Briggs, 7 Pick. 533; Johns v. Church, 12 ib. 557; Jack v. Dougherty, 3 Watts, 151; Harvey v. Alexander, 1 Rand. 252; Duval v. Bibb, 4 Hen. & Munf. 119; Steele v. Washington, 1 Ohio, 352; Brooks & Brown v. Maltbie, 4 Stew. & P. 105; Phil. Ev. (C. & H.’s Notes,) vol. 4, part 2, p. 619.</p> <p>2. That Blake Little was made a competent witness for plaintiffs, who were his grantees, by their release.</p> <p>3. That the declarations of Buffington, who was proved to be dead at the time of the trial, and who was in possession of the negroes when the declarations were made, were competent to show how and under whom he held possession, and were offered for no other purpose. — Mims v. Sturdevant, 23 Ala. 644.</p> <p>4. That the charges of the court were correct.</p>

<p>Appeal from the Circuit Court of Mobile.</p> <p>Tried before the Hon. C. W. Rapiee.</p> <p>This action was brought by the appellants, Caroline Caldwell, Alexander Harvey and Matilda, his wife, as heirs-at-law of Sebastian Shade, against Andrew Thorpe and Charles Thorpe, “ to recover a parcel of land in the city of Mobile, situate to the south of Dauphin street, and bounded thereon, and measuring fifty feet, bounded on the west by the property of George Davis, and extending with the same width one hundred feet”; and was. commenced on the 27th October, 1845. The defendants pleaded, in short by consent, the general issue, and the statutes of limitation of ten, twenty, and thirty years.</p> <p>The trial was had at the May term, 1854; and the bill of exceptions then sealed, at the instance of the plaintiffs, presents all the matters covered by the assignments of error.</p> <p>The plaintiffs rested their case, after having offered in evidence an agreement, which had been entered into between the attorneys of the respective parties, and which was as follows:</p> <p> </p> <p>ple, and was in possession of, the land sued for in this case, until the 20th day of August, 1818; that, on that day, the defendants, and those under whom they claim, went into possession, and have held the same adversely, ever since that time, under claim of title, to this time; that said Shade was the ancestor of the plaintiffs, and that they are his only heirs; that said Shade died, in the State of Alabama, in the year 1820; that plaintiffs were minors at the death of said Shade. It is further admitted, that said heirs married before the termination of their minority; and that the records in the office of the county, of any papers having reference to this cause, may be read in evidence, without objection to the non-production of the originals.”</p> <p>(signed) “ STANLEY, for Pl’ffs.”</p> <p>“ Lockwood, for Deffts.”</p> <p>“ The defendants then proposed to give evidence tending to show that the plaintiffs had no title to the premises sued for; to which the plaintiffs objected, on the ground that they were concluded by said agreement. . The defendants then examined Mr. Lockwood, before the court, who testified, that he, as defendants’ attorney, entered into said agreement; that it bore his signature, a part of the body of it was in his handwriting, and the other part in Mr. Stanley’s; that he, however, had no recollection whatever of the agreement; that, when he entered into it, and until recently, he supposed the plaintiffs were suing for their right lot; that he now believed they were mistaken in that supposition, and, had he known as much when he entered into the agreement, he would not have entered into it. Mr. Lockwood said, also, that he had signed said agreement under an entire misapprehension of the facts as to the titles to the lots, and without consultation with the defendants. Defendants proved, also, that they had given notice to the plaintiffs, several days before the trial, as 'soon as the error was ascertained, that they would not abide by said agreement as to the right- of plaintiffs to the lot in 1818; and produced another (and subsequent) agreement, relating to said cause, as also to the case when it was in chancery, of which the following is a copy :</p> <p>‘ Caldwell & others vs. Thorpe, In the Circuit Court.</p> <p>‘ Thorpe vs. Caldwell & al., In Chancery.</p> <p>‘ In these cases it is agreed, that the records, or the copies from the records, of the circuit or county court, or of the register’s office, of the county of Mobile, which either party may wish to use on the trial of said causes, or either of them, may be used in evidence without further proof.’</p> <p>March 21, ’50. (signed) W. C. Stanley.</p> <p>‘ Lockwood & Hitchcock, for Thorpe.’</p> <p>“ On the day before the trial, this cause being called, the defendants called the attention of the court to the agreement just above exhibited, and the mistake under which it was entered into; and desired to know, before venturing to trial, whether the court would compel them to abide by the agreement. The court refused to give any opinion, but informed the counsel that he was supposed to know the effect of his agreement, and that the cause must go on to trial. On the trial of the cause, the agreement was read to the jury, subject to the charge of the court as to its effect, after the evidence was through; the court announcing that, if it should appear that the defendants’ counsel entered into the agreement through mistake, and that the plaintiffs’ ancestor never was in fact in possession of or owned said lot, he should charge the jury, that the defendants were not bound by the agreement. In Mr. Lockwood’s examination as to this agreement, he also said, that he always supposed the lot in controversy was the proper lot called for in the plaintiffs’ deed, until the mistake (or supposed mistake) in the copy of the deed to Chamberlain, Smoot and Slade was called to his attention, some short time before the trial now had. The court ruled, that the defendants were not concluded by said first agreement, but that he would hold it good until rebutted, and would allow the defendants to show that the plaintiffs had no title to the premises sued for; to which ruling the plaintiffs excepted.</p> <p>“ It was admitted, that the title to three hundred feet on the south side of Dauphin street in Mobile, beginning on the west at the corner of Royal street, and running east on Dauphin street three hundred feet, and running back south — feet, was in Forbes & Co.; and defendants gave in evidence a record copy, of a deed from Forbes & Co. to Wm. H. Robertson, and a record copy of a deed from -said Robertson to plaintiffs’ ancestor”, which are appended as exhibits to the bill of exceptions. The deed of Forbes & Co. to Robertson was dated October 28,1817, and conveyed lots Nos. 7, 8, and 9, in square No. 1, lying south of Dauphin street, and having a front of twenty-five feet each; and the deed of-Robertson to Sebastian Shade, dated January 24, 1818, conveyed said lot No. 9, describing it as follows: “ All that piece or parcel of land, situated in the town of Mobile aforesaid, and butted and bounded as follows : lying on the south side of Dauphin street, namely, one lot or parcel of land, being lot No. 9, of square No. 1, of lots and lands sold by James Inne-rarity, John Forbes and John Innerarity to W. H. Robertson, lying as aforesaid, and butting and bounding on the south side of Dauphin street for the length of twenty-five English feet, on the west southwardly bounded by a lot sold by James Innerarity, John Forbes and John Innerarity to Col. B. S. Smoot and others, on the south eastwardly by a lot belonging to Col. Louis Judson, and on the east north-wardly by lot No. 8 of the said square.”</p> <p>The defendants then offered in evidence a letter from Sebastian Shade to John W. Simonton, and a record copy of a deed from said Simonton to Thomas Shields. The letter from said Shade to Simonton, dated August 20, 1818, was as follows : “ Dear Sir : I received your letter of the 17th, containing the proposition of Mr. Shields, which I will accept, •provided we understand each other perfectly. The manner the house is to be finished, which you say is agreeable to the original contract, with the following exceptions," &c. “ The whole will be finished by me in as short a time as possible. The payments will answer; and if no objection is made (to) the manner I understand the house is to be finished, you will please to close the bargain. I will be in town shortly, and will comply with any agreement pointed out in your letter. Tour agreement with Mr. Shields will be conclusive and binding on me. Any trouble you may be at, will be thankfully paid, by your friend,” &c. The deed of Simonton to Shields purported to be executed by Simonton as agent of Sebastian Shade, and conveyed to Shields said lot No. 9, describing it as follows : “ All that lot or parcel of land, situate, lying and being in the town of Mobile, on the south side of Dauphin street, containing twenty-five feet front on said street, and running back southwardly sixty-one feet, bounded on the north by Dauphin street, east by the lands of James Innerarity, on the west by Smoot and Chamberlain, and on the south by Louis Judson.”</p> <p>The plaintiffs objected to this letter and deed, “ on the ground that the letter was no authority to Simonton to convey; but the court overruled the objection, and permitted the evidence to be read, — not as a conveyance, but merely as color of title to show the Iona ftdes of the possession had under it; and plaintiffs excepted.”</p> <p>The defendants then offered record copies of a deed from Shields to Batre & Chighizola, for said lots Nos. 7, 8, and 9, dated January 27,1821; a partition deed between said Batre and Chighizola, by which lot No. 7 was assigned to said Batre, and lots Nos. 8 and 9 to said Chighizola; a deed from said Batre to Jotham Clark, dated February 15, 1834, conveying- said lot No. 7; and a sheriff’s deed, dated April 6, 1840, conveying said Clark’s interest in said lotto the "defendant, Andrew Thorpe. “ To each of these deeds, as offered, the plaintiffs objected, because they were the written assertions of strangers, by which plaintiffs were not bound; and because, secondly, they are subsequent to the date of plaintiffs’ title. The court overruled the several objections, and permitted the evidence to go to the jury; and plaintiffs excepted.” The defendants then offered the record of the judgment against said Jotham Clark, under which said lot was sold by the sheriff. The plaintiffs objected to it on the same ■ grounds; but the court overruled their objection, and they excepted.</p> <p>The defendants then offered in evidence the deposition of said Simonton, and the plaintiffs raised several objections to it, which, however, it is unnecessary to notice, as the deposition is nowhere copied in the record. They then offered the deposition of H. Y. Chamberlain, and the certified copy of a deed appended thereto as an exhibit. Said Chamberlain testified as follows : “ Witness, Henry B. Slade and Benj. S. Smoot bought a lot on the south-east corner of Royal and Dauphin streets, at an auction sale by John Forbes & Co. This was in the year 1817, as per copy of deed hereto appended, marked ‘ A.’ My recollection is, that we fronted on Dauphin street one hundred feet. I cannot say whether Robertson bought the east, or not; but he claimed said lot, and built thereon, as the agent of Thomas Shields, as I believe. The south boundary line of the lot was a little less than the front line, in consequence of the way the streets ran. The first lot described in said deed, marked ‘A’, I think is correctly described therein. In the second lot described in said deed, there has been a 'mistake made in copying the deed : it should be twenty-five feet front on Dauphin street, instead of seventy five feet. The deed hereto annexed, marked ‘B,’ is, I think, a true copy of-the partition deed between the parties therein named; and the property described therein is all the property on Dauphin street purchased by witness, Slade and Smoot at said auction sale. [Cross-examined.] I cannot say, from my recollection, whether the property mentioned as lying on the south-east corner of Dauphin and Royal streets, was all offered for sale at one time, or in separate parcels. I cannot recollect how it happened that there were two descriptions in the deed, instead of one. I cannot tell, without a reference to the deed, which of the two lots, one of seventy-five feet, and the other of twenty-five feet, lies farthest easterly. According to the best of my recollection, Addin Lewis had seventy-five feet appropriated to him on Dauphin street; the share appropriated to Toulmin lay between the land owned by witness and Addin Lewis; witness’ lay at the corner of Royal and Dauphin, and there was some twenty-four or twenty-five feet on Dauphin. The land was divided, I - think, by agreement between the parties. I do not remember who were the witnesses to the partition deed, or when the partition was made, or who witnessed the deed from Forbes & Oo., or when the said auction sale took place. [Re-examined.] The facts are, to the best of my recollection, correctly stated in the partition deed. At the time this partition was made, I had an agreement with Toul-min for my interest in said lot. My recollection of which lot fell to me is imperfect, and I must refer to the deed for positive information as to how much fell to each party. I never, to my recollection, compared the original deeds, of which copies are hereto annexed, with the record book of Mobile county.”</p> <p>The deed from Forbes & Co. to Chamberlain, Smoot and Slade, as appended to the deposition of this witness, is dated October 25, 1817, and conveys the following lands : “ One lot, with some old buildings thereon, forming the south-east corner of Royal and Dauphin, streets, butting and bounding northwardly on Dauphin street, seventy-five feet, English measure; southwardly on a lot belonging to Louis Judson, sixty-nine feet, or thereabouts; and eastwardly on the lot next mentioned, sixty-seven feet, more or less. One other lot, butting and bounding northwardly on Dauphin street, seventy-five feet; westwardly on the foregoing lot, sixty-seven feet; southwardly on Louis Judson’s lot, twenty-four feet, or thereabouts; and eastwardly-belonging to Wm. H. Robertson, seventy feet, or thereabouts. One other lot, having thirty feet front on Royal street, by one hundred feet in depth; bounded eastwardly by Royal street; northwardly and westwardly by premises belonging to John Forbes & Co.; and southwardly by a lot belonging to George Fisher.” The partition deed between Chamberlain, Toulmin and Lewis, which is dated January 1, 1822, recites that the parties are tenants in common of a certain parcel of land in the city of Mobile, which is described as being “ bounded north by Dauphin street, east by lots and lands belonging to J. Chighizola, south by the premises of Louis Judson, and west by Royal street, having a space on said Dauphin street of ninety-nine feet, and sixty-four feet on Royal street”; and which is then divided among in severalty.</p> <p>“To so much of the deposition of said Chamberlain as tended to contradict the deed thereto appended, the plaintiffs objected, on the ground that the transcript of the record of the deed was, in the absence of the original deed, the best evidence of its contents; and that the deposition of Mr. Chamberlain was not admissible, in a court of law, to contradict the record, or to correct a mistake in the record. The court overruled the objection, and allowed the evidence to go to the jury; and the plaintiffs excepted.</p> <p>“ The defendants read in evidence a written agreement, entered into just before the trial commenced, as follows: That the original deed from Forbes & Co. and Innerarity to Chamberlain, Smoót and Slade was lost, or destroyed, and could not be found; that the defendant, and those under whom he claims, have been in possession of the land sued for since August, 1818, claiming the lot as their own; and that the defendant is now in possessiofi.’ They also proved that the premises sued for began one hundred and fifty, and extended to one hundred and seventy-five feet, east from Royal street, on Dauphin, down Dauphin; and contended that the plaintiffs’ land, to which they really had a title, began at one hundred, and extended to one hundred and twenty-five feet, down said street from Royal. The main question in the cause was one of location; and whether the lot sued for was the plaintiffs’ true locality, depended upon whether Chamberlain, Smoot and Slade’s lot extended down Dauphin street one hundred and fifty feet, or 'only one hundred, — if the former, the plaintiffs have sued for their right land; if the latter, they have not. The testimony above set out was all the evidence in the cause, except as to rents and improvements; and except that it was in proof, and not contradicted or called in question, that the lot sued for began at one hundred and fifty feet from Royal street, and extended twenty-five feet, fronting on Dauphin as before set forth.</p> <p>“ The court charged the jury, among other things, — '</p> <p>“ 1. That they were to determine from the evidence before them whether there was a mistake in entering into the agreement first above set out; that if they found it was entered into by mistake, they should not hold defendants bound by it; and that if they found that the plaintiffs had sued for the wrong land, it would be evidence that the agreement had been entered into through mistake.</p> <p>“ 2. That the record copy of the deed to Chamberlain is presumed to be correct, and they ought not to hold it to be incorrect, unless satisfied by the evidence that the clerk had made a mistake. And the- court remarked, that it felt much difficulty on this part of the case, but did not think it would be justice to permit a party to suffer by a mistake of the clerk.”</p> <p>The plaintiffs excepted to these charges, and asked the court to give the following instructions to the jury : ,</p> <p>“ 1. That, in the absence of the original deed, the record is the highest evidence of its contents, and ’ should be received as superior evidence to the deposition of Mr. Chamberlain on the question; which charge the court refused, and the plaintiffs excepted.</p> <p>“ 2. That the location Of the lot sued for is solved by reference to the Chamberlain, Smoot and Slade deed, and for what is covered by it the jury will look to the certified copy of the deed, and not to any other proof offered; which charge the court refused, and the plaintiffs excepted.</p> <p>“ 3. That the record, and the transcript of such record certified by the clerk, is to be received by the jury as good and effectual, and available in law, as if the-original even (?) were now produced and proved; and that this means, that the jury, in the absence of the original, are to look at the record and transcript' thereof, to ascertain the contents of the deed, and are not to look to the deposition of Mr. Chamberlain. This charge the court refused, and the plaintiffs excepted.</p> <p>“ The plaintiffs then handed the court Clay’s Digefet, open at page 155, § 25, and asked the court to read that section to the jury, and to tell them that it was a statute of this State, in force as to this trial, and furnished the rule by which the contents of the deed to Chamberlain, Smoot and Slade were to be solved; which the court did, adding, ‘provided you are satisfied from the whole evidence that the deed was correctly recorded by the clerk.’ To this qualification of the charge the plaintiffs excepted.</p> <p>The court charged the jury, also, that the deed from Simon-ton, as Shade’s agent, was void, — the power being insufficient, and the deed not being in Shade’s name.</p> <p>“ The defendants then asked the court to charge the jury, that.if they believed from the evidence that Shade sold the lot in suit to Shields, in 1818, placed him in possession, and received the whole purchase money; and that the defendants, and others holding under Shields, have been in quiet possession ever since, — then they might presume that a proper deed was made by Shade, though none was found (?). This the court refused, but finally gave the charge, with this qualification, ‘ provided the evidence did not tend to negative such a presumption’; and to the charge thus given the plaintiffs excepted.”</p> <p>These rulings of the court are now assigned as error.</p> <p>1. The main question in the case is as to the location of the premises in controversy; and this depends upon the question, whether a record copy of a deed, the original being lost, is evidence of its contents, or whether the memory of a witness can be admitted against the record; and, if admissible, whether such evidence is of as high character and great weight as the record. The appellants contend that the record is the best and only secondary evidence; and this question seems to be settled by the express words of the statute. — Clay’s Digest, 155, § 25; Code, § 1215; Evans v. Bolling, 8 Porter, 546; Hogan v. Smith, 16 Ala. 600; Sturte-vant v. Robinson, 18 Pick. 119; Mills v. Barnes, 4 Blackf. 438; Coman v. State, ih. 243; 1 Green. Ev. §§ 84, 85, and. note; 1 Conn. 387.</p> <p>2. The admissions of Lockwood were binding on his clients. No mistake in entering into it was shown, except by presumption. The court did not make the defendant’s absolution from it depend on whether the plaintiffs had been induced to act upon it. — 1 Green. Ev. §§ 186, 206; Starke & Moore v. Kenan, 11 Ala. 818; Wetherellv.Bird,7 0. & P. 6.</p> <p>3. The letter from the plaintiffs’ ancestor did not authorize a conveyance, and was not evidence conducing to show color of title. It had no other effect than to mislead the jury, by inducing them to connect it with Simonton’s deed.</p> <p>4. The deeds objected to had no relation to, and in no wise affected, the plaintiffs’ title, and should have been excluded. -The partition deed between Chamberlain and his partners proves that, when that partition was made, they only owned or divided one hundred feet; but it tends to prove nothing as to the original grant.</p> <p>The defendants claim from Simonton, and not from Shade. They claim adversely to Shade, and, by their assertion of title from Simonton, insist that Shade had no title. How, then, can they ask the court to presume that Shade conveyed to them? To presume a grant in such a case would be a fraud on the statute of limitations. The doctrine of presumed grants only runs against the government, or against some body against whom the statute of limitations does not run.— 3 Phil. Ev., pp. 496-8; 4 J. J. Mar. 316, 527.</p> <p>made the following points :</p> <p>1. There can be no doubt as to the mistake, shown by the parol evidence, in the recorded copy of Chamberlain’s deed, making his lot front one hundred and fifty feet instead of one hundred; but the appellants contend that such evidence could not be introduced to show the contents of the original deed. The answer to this position is, that the record itself is but secondary evidence of the contents of the deed, and that there are no degrees in secondary evidence. — Oowen & Hill’s Notes to Phill. Ev., vol. 3, pp. 1211, 1475, -notes 221, 254, 295. The statute, on which the appellants rely, only provides one mode of proof, in case of the loss of the original deed, but does not exclude other modes of proof.</p> <p>2. The defendants do not claim lot No. 7 through the plaintiffs’ ancestor, and the question raised on his deed to them does not arise. But, if the record copy was right, and No. 7 was in fact the lot bought by plaintiffs’ ancestor, then defendants have been in quiet possession ever since 1818, before the death of Shade; and payment in full being proved, ‘the law will presume that a proper deed was afterwards executed, though none was proved. — 1 Green. Ev, § 46; Wallace v. Maxwell, 7 Iredell’s Law R. 135; Bierce v. Bierce, 15 Ohio, 529; Cowen & Hill’s Notes, vol. 1, pp. 498-9.</p> <p>3. An agent is always a competent witness for or against his principal. If, however, Simonton was interested, he was properly released. The letter attached to the deposition, with the deed to which it related, was only admitted to show the bona fides of the defendant’s possession.' Besides, the power of attorney to make the deed will be presumed. — 6 Martin’s La. R. 153; 1 Greenl. Ev. § 21; C. & H.’s Notes, p. 365, n. 311.</p> <p>4. The deeds objected to were entirely relevant, and each was a link in the chain of title.</p> <p>5. The agreement introduced by the plaintiffs was entered into only for a previous trial, and was waived by the subse-sequent agreement. It was, moreover, made through mistake, produced by the false record. — Dorsey v. Gassaway, 2 Har. & J. 402; 1 Greenl. Ev. §§ 27, 206.</p>

<p>[BILL IN EQUITY EOR REDEMPTION UNDER ALLEGED MORTGAGE.]</p> <p>1. Sow non-resiclmt infant defendants may be made parlies. — Non-resident infant defendants, whose father is dead, and whose mother is a non-resident, may be made parties to a bill by publication and sending a copy of the order to their mother, with whom they live, at her known place of residence; but sending a copy of the order to Elizabeth Lewis, “ as the mother of said infants,” when their mother’s name is shown by the record to be Mary A. Lewis, is not a compliance with the rule.</p> <p>2. Decree reversed fen error prejudicial to infant defendants. — When non-resident infant defendants are not properly brought in as parties, the decree will be reversed by the appellate court, and the cause remanded, although the error escaped the notice of the solicitors and chancellor in the court below, and was not specially assigned as error.</p>

Heard before the Hon. James B. Clabk. This bill was filed by James Hair, as administrator of Mildred Walker, deceased, and Etherlin T. Croxton, against Bryant Avery and Pinckney Jones, and alleged… Held: that the common law will be presumed to prevail in other States of the Union, until the contrary is shown. Can it not be shown in this court, in the first instance, by the production of the properly authenticated statutes?

Heard before the Hon. Wade Keyes. This bill wasfiled by David Danforth, the appellant, against Charles D. Laney, to enforce the specific performance of an alleged parol contract for the purchase of a tract of land.

Tried before the Hon. JOHN E. Moobe. The appellants, suing as partners, obtained a judgment before a justice of the peace against Henry Gillespie and Lucy Gillespie, which was removed by certiorari, on the petition of the said Lucy Gillespie, to the circuit court. The plaintiffs there filed a complaint on a bond; to which Lucy Gillespie pleaded coverture, and her co-defendant nil debet.

Tried before the Hon. E. W. Pettu@. This was an action on an injunction bond, brought by Samuel Wallace against Hudson W. Nelson, as administrator of Henry W. Robertson, deceased, and was commenced in August, 1854.

<p>[MOTION TO AMEND RECORD HUSO PRO TUNC.]</p> <p>1. Amendment of record on allegation of fraud. — The general rule, which requires some matter of record, entry, or memorandum in the handwriting of the judge, to authorize an amendment of the record .nunc pro tunc, does not apply to cases in which the entry is impeached for fraud; and though these cases generally arise collaterally, yet an entry relating to a grant of letters of administration may be amended on a direct application, of which the opposite parly must have notice, setting forth the fraud specifically, and making the necessary proof.</p> <p>2. Allegation of fraud must be specific. — If the motion simply states, as the ground for the amendment asked, that the record states a fact which was not proved, that as it stands it operates a fraud on the rights of the plaintiff in the motion, and that it is void in law, on account of fraud in a legal sense, the allegation is not sufficiently specific to authorize the introduction of parol evidence to prove that the fact recited was not true.</p>

<p>Appeal from the Chancery Court of Macon;</p> <p>Heard before the Hon. James B. Claek.</p> <p>This bill was filed by Alfred T. Grady, Joseph Morelandj Charlton Wright, and Phoebe Key, against Alexander J. Robinson, to obtain a divestiture of the legal title to a certain tract of land held by the defendant, and to enjoin an action at law for its recovery. The complainants claim to be sub-purchasers from R. J. Grigg and Adam Hardin, who bought from James 0. Watson & Go.; and they allege that the defendant was a member of the firm of James C. Watson & Go., at the time of the. purchase by Grigg and Hardin ; that he was bound as a partner, and under a special contract with said Hardin, to obtain a patent for said lands in the name of the company ; and that he fraudulently procured a patent in his own name, under which he has instituted an action at law for the recovery of the land. The firm of James C. Watson <fc Go. was formed for the purpose of speculating in Indian lands; and the bill alleges that, at the time they sold to said Grigg and Hardin, they held a claim on said land, by virtue of a contract made with the chiefs of the Greek Indians, known and generally called the “Big Contract.” The contracts between the said James 0. Watson & Go. and Grigg and Hardin, which are under seal, and dated December 27, 1842, are appended to the bill as exhibits A and 0. The bill alleges that possession was taken under the contracts, the purchase money paid in full, and valuable irn-prdvemen'ts erected on the lands.</p> <p>The defendant answered the bill, and the material parts of his answer are stated at length in the opinion.</p> <p>The chancellor, on final hearing, 'on pleadings and proof, so modified the injunction as to allow the defendant to proceed- with his action at law for the recovery of the possession of the land, but enjoined him from recovering any damages, and taxed him with the costs; and from this decree the complainants now appeal. ^</p> <p>The action of the chancellor in suppressing certain portions of the depositions of Peter 0. Harris and Littleberry Strange, is also assigned for error. The fourth and sixth direct interrogatories to these witnesses were as follows :</p> <p>“ Ini. íth. — Look upon said exhibits [A and 0, attached to the bill], and state all you know that will tend to show that the agreements therein stated were entered into by said J. 0. Watson & Co. .as therein set forth. Do you know the handwriting in which the name of J. 0. Watson & Co., appended to said exhibits, is written, from having seen the person who signed it write ? If yea, in whose handwriting is said name written, and what authority had the person who wrote the same to enter into the agreements contained therein in the name of J. C. Watson & Co.?”</p> <p>“ Int. 6iA. — State all you know that will tend to show that unpatented lands, belonging to the persons composing said conjpany, were, at the date of said exhibits, the subject of sale by said persons, in the name of J. 0. Watson & Co., or that said agreements are not less binding on said persons than if executed by each and every one of them in his own proper handwriting.”</p> <p>The answers of said Harris were as follows :</p> <p>“ To the 4th interrogatory he answers, that he has examined said exhibits, and states that James C. Watson was fully authorized to make such a contract; that the ‘ James C. Watson & Co.’ is in the handwriting of said James C. Watson; that he knows it is the signature of said Watson from having often seen him write.”</p> <p>“ To the 6th interrogatory he answers, that James C. Watson was fully authorized to sell all the lands embraced in the Watson contract J</p> <p>The answers of said Strange were as follows:</p> <p>“ To the 4th interrogatory he answers, having examined the signature of J. C. Watson & Co. to said exhibits, that the signature thereto is in the handwriting of said James C. Watson; that he knows it from having seen him write frequently; that said Watson was trustee for said company of J. C. Watson & Co., and had full authority to sell and convey the real estate belonging to said company.”</p> <p>“To the 6th interrogatory he says, that if James C. Watson had authority to sell any land, whether patented or not, other than the lands of said James 0. Watson & Co., he does not know it, but he had full authority to sell and convey any lands of said company, whether patented or not.”</p> <p>The chancellor, on motion of the defendant, suppressed the italicized portions of these answers, on the ground that the authority of said Watson was in writing, and could not be proved by parol.</p> <p>All the other material facts of the case, as here presented, will be readily understood from the opinion.</p> <p>1. The defendant's answer to the Collins bill is evidence against him, as also his admissions to the witnesses. — Brandon v. Cabiness, 10 Ala. 156; Julian v. Reynolds, 8 ib. 680; Holman v. Bank of Norfolk, 12 ib. 370; 9 Wheat. 831.</p> <p>2. An equivocal answer is entitled to but little weight, especially when it is contradicted by other writings and statements of the defendant. — Gamble v. Johnson, 9 Mo. 598.</p> <p>3. The evidence establishes the fact that the defendant was a partner in the firm of James C. Watson &. Co., and the complainants have an undoubted right to treat him as such. His answer to the Collins bill contains his own admission of the fact, and no public notice was ever given of his withdrawal. — 6 Porter, 138; 2 Ala. 502; 5 ib. 173; 10 ib. 156; 12 Sm. & Mar. 538; 4 Shep. 261; 2 Watts & S. 411; 7 Miss. 414; 7 Blaekf. 170; 12 Yermont, 291.</p> <p>4. The functions, rights and duties of partners comprehend those of trustees and agents. — Collyer on Partnership, §§ 182 to 186. A partner cannot undertake incompatible duties, nor become an actor in a transaction to the prejudice of one dealing with the partnership, nor acquire a title adverse to the partnership vendees. — McGehee v. Lindsay, 6 Ala. 16; Crutchfield v. Haynes, 14 Ala. 52; Story on Agency, § 217.</p> <p>5. If the defendant was not a partner, and did not obtain the patent as the' agent of Hardin, still his conduct and declarations induced Hardin and his vendees to believe that he was acting for them; he is estopped, therefore, from setting up a purchase in his own name, which enures to their benefit, 20 Conn. 563; 14 Penn. StateR. 343; 7 Blaekf. 170; 10 Ala. 400; 22 ‘ib. 543. .</p> <p>6. The allegations of the bill, as to the fraud in procuring a patent, are abundantly proved. — Kennedy v. Kennedy, 2 Ala. 577; Bishop v. Bishop, 13 ib. 475; 10 ib. 156.</p> <p>7. Purchasers for valuable consideration, without notice of a prior equity, are entitled to pay for improvements made. Patrick v. Marshall, 2 Bibb, 45; Woods v. Patrick, 3 ib. 20; 3 Litt. 399; 1 A. K. Mar. 246, 389; 3 Dana,'245; 6 Mon. 557; 4 J. J. Mar. 170; G-oodwin v. Lyon, 4 Porter,'297; 3 Paige, 545; 1 Story, 478; 13. Ala. 43; 4 Gill, 87; 4 Litt. 370; 1 Johns. Oh. 344.</p> <p>contended,—</p> <p>1. That the defendant was not a member of the firm of James C. Watson & Co., at the time of the sale to G-rigg and Hardin. He was not present at the formation of the company, and was not one of the contracting parties. He was not present at the meeting in August, 1837, when a half share was assigned to him by the original contractors; and hence he did not thereby become a member, unless said share was afterwards accepted by him, either in writing, or-by some act. After said half share was assigned to him, his membership in the company depended upon certain conditions; one of which conditions was the payment of $6,000 on each full share, and the like proportion on each part of a share, within twenty days from the time of said meeting; and also certain other duties required by the seventh resolution of the company. None of these conditions was ever complied with by the defendant. He denies that he was a member; and there is no proof of any act done by him binding him by the resolutions of the company. His admission, in his answer to the Collins bill, that he was a member, cannot estop him in this case. That admission may (and indeed must) have been made in consequence of wrong advice as to his rights and liabilities in relation to the’company; and such an admission cannot estop him, unless the complainants acted upon it, or were misled by it. — Gamble v. Gamble, 11 Ala. 976. That question is now directly put in issue; and the evidence fully shows that he was not a partner, either in law or in fact. He could not be a member of a company for speculating in lands, except by some instrument in writing signed by himself, or by his duly authorized agent. — Collyer on Partnership, 3, note 2; Larkins v. Rhodes, 5 Porter, 195; Duren v. Parsons, ib. 345.</p> <p>The answer states, in explicit language, “ that, at the time said contracts of purchase with Jas. C. Watson & Co. are alleged to have been made, this defendant was not a member of said company.” This plain and positive denial is directly responsive to the allegation of the bill. The statement of facts which is afterwards inserted in the answer, is a mere relation of the organization of the company. The simple denial, of itself, would have been sufficient; but the statement of the additional facts cannot subject the answer to the charge of evasiveness and vagueness. If, however, the answer were obnoxious to this charge, the complainants should have excepted to it for that reason; but they cannot construe it into an admission of the allegations of the bill, in face of the gen-ral and positive denial. — Whitney v. Belden, 3 Edw. 386.</p> <p>2. But, if the court should hold the defendant a partner in the company, then we contend that the company was not bound by the contracts of G-rigg-and Hardin. These contracts -were made by James C. Waison, who had no authority to sell any lands, except as he was authorized in writing: his only authority was to sell the lands patented. — 12 Ala. 580; Story on Partnership, §§ 101, 168; Collyer on Partnership, § 1131.</p> <p>3. If-the defendant was a partner at all, he was only a dormant partner, whose liability does not extend to speculations in the purchase and sale of lands. — Collyer, 3, note 4; Story, § 83; 4 Mass. 424; 3 Sumner, 435.</p> <p>4. The complainants, having purchased with a knowledge of the defects in their titles, are not entitled to pay for their improvements. — 2 Story’s Equity, §1238; Lamar v. Minter, 13 Ala. 40; Hanriqk v. Herbert, 16 ib. 581; 8 Wheat. 82; 4 Cowen, 168. ' .</p>

Tried before the Hon. Andrew B. Moore. Henry L. Reynolds, the appellee, commenced a suit against James Irons by original attachment, which was levied on a slave woman named Patsey, to whom a claim was interposed by Mrs. Catherine Irons, the appellant, who is the wife of the defendant in attachment.

<p>Appeal from, the Circuit Court of Pickens.</p> <p>Tried before the Hon. E. W. Pettus.</p> <p>This action was brought by the appellants, infants suing by their next friend, against John W. Mustin, to recover three slaves and some other articles of personal property, which the plaintiffs claimed under a deed of gift from their maternal grandfather, and which were held by the defendant as his administrator. On the trial of the cause, as the bill of exceptions states, the plaintiffs read to the jury, by consent, an agreement of counsel, in these words:</p> <p>“We hereby agree to go to trial, in the above entitled cause, upon the construction of the paper writing purporting to be a deed of gift from Paul Walters to Sarah Elmore, wife of Charles Elmore, and to her children, as to the right of Elmore to recover, without regard to the character in which said Elmore sues; and aDy right which said Mustin has, as administrator of said Paul Walters, affecting his creditors, is hereby waived. And it is further admitted, that some of Mrs. Elmore’s children were born before, and some after, the 30th day of April, 1845; and that she died before said Paul Walters, her father. It is further agreed, that Willison, a man about twenty-two or twenty-three yeax-s of age, is worth $850, and his hire $100 per year; Becky, about eighteen or twenty years old, worth $800, and hire worth $55 per year; Alfred, a boy nine or ten years old, worth $675, and hire worth $30 per year; that these slaves were all in the possession of the defendant at the time of bringing suit; that Alfred is the child of Becky, named in the deed; that Mary, another child of Becky’s, about four years old, was given by the will of said Paul Walters to one of his daughters, named Susannah Williams; and that the above slaves went into the possession of the defendant, about 1st January, 1855, as administrator of said Paul Walters, and are so held by him.”</p> <p>’ The plaintiffs then read in evidence an instrument in writing, entitled “ Deed of gift”, which was in these words :</p> <p> </p> <p>and State of Alabama, farmer, for and in consideration of the natural love and affection which I bear unto 'my youngest daughter, Sarah M. Elmore, wife of Charles Elmore, (and) in consideration of the sum of one dollar to me in hand paid by-my said daughter, at and before the sealing and delivery hereof, the receipt whereof I do hereby acknowledge, have given, granted, bargained, and sold, and by these presents do give, grant, bargain, ^nd sell, unto my said daughter, Sarah Elmore, the following named property, and to her children, the natural heirs of her body, at her death — namely : One negro man named Willison, likewise one negro woman named Becky, and her child AJfred, likewise one cross-cut saw, one large trunk, two yokes of steers, one new Jersey wagon, fifty dollars in money, one rifle-gun, and shot-gun; to have and to hold all and singular the above named property, hereby given and granted, unto the said Sarah Elmpre, my daughter, her executors and administrators forever, as her and her children’s property. The condition of the above named gift is to take place at my death; until then, the property is to remain as my own. In witness whereof, I have hereunto sét my hand and seal, this April 30th day, in the year of our Lord 1845.” his</p> <p> </p> <p>This writing was admitted to record, in the proper office in Pickens county, on the 9th June, 1845, on proof by one of the subscribing witnesses of its execution; and the bill of exceptions states that it was admitted to have been duly executed, proven, and recorded.</p> <p>“ A paper, purporting to be the last will and testament of said Paul Walters, was also, by agreement of counsel, admitted and read in evidence”, which was dated October 8, 1852, and by which the testator, after devising and bequeathing real and personal property to other children and grandchildren, gives his daughter Sarah two dollars. This will also contained a bequest to Susannah Williams of a negro child named Mary, and all the testator’s stock of cattle, “ yutli the exception of the oxen gifted to Sarah Elmore”: and it was admitted to have been duly admitted to probate.</p> <p>“This was all the testimony in the case; and upon this evidence the court charged the jury, that the writing executed by Paul Walters on the 30th day of April, 1845, and in evidence before them, was an executory devise, and not a deed; and that the plaintiffs, on all the proof, were not entitled to recover in this action.” The plaintiffs excepted to this charge, and it is now assigned as error.</p> <p>contended,—</p> <p>1. That the instrument under which the plaintiffs below claimed is a deed in form, is called a deed by the maker, can operate as a deed, and was manifestly intended so to operate; and although the character of an instrument be equivocal, yet, if its execution is perfected by delivery, the courts, to prevent the maker’s intention from being defeated, will hold it to be a deed. — Golding v. Golding, 24 Ala. 128.</p> <p>2. That the deed gave Mrs. Elmore an estate for life, with remainder to her children living at her death, subject to the life estate of the grantor. — Williamson v. Mason, 23 Ala. 481.</p> <p>made the following points :</p> <p>1. The alleged deed of gift was properly held a will.— Dunn and Wife v. Bank of Mobile, 2 Ala. 152; Shepherd v. Nabors, 6 ib. 631; Thompson v. Johnson, 19 ib. 59; Walker v. Jones, 23 ib. 448; Golding v. Golding, 24 ib. 122.</p> <p>2. If said paper be held a deed, and not a will, it .created an estate tail in Mrs. Elmore, which, by operation of the statute then in force (Clay’s Digest, 151, § 31), was turned into a fee; and consequently the plaintiffs have no title.</p> <p>3. But, if said paper, as a deed, created a life estate in Mrs. Elmore, with remainder to her children, the children in esse at the time of its execution took that remainder; and, since the action is brought jointly by the children born before and after the date of the deed, there can be no recovery. Therefore, the charge of the court, though grounded on a wrong reason, is correct. — Thomas v. Denton, 15 Ala. 583; Bell v. Hogan, 1 Stew. 536; Miller v. Eatman, 11 Ala. 609.</p> <p>4. There is no evidence in the record that the plaintiffs are the children of Mrs. Elmore.</p> <p>5. If the paper be held a deed, and.be construed to create . a ’life estate in the donor, remainder to his daughter for life, and remainder over to her children living at her death; or, if it be construed to create a life estate in the daughter, with remainder to her children living at her death, -reserving the use and possession to the donor during Ms life, — in either case, the remainder over to the children can only be sustained * as an executory devise. — 2 Kent's Com. 352.</p>

<p>Appeal from the Chancery Court of Macon.</p> <p>Heard before the Hon. A. J. Walker.</p> <p>This bill was filed by Mrs. Margaret King, suing by her next friend, to obtain a divorce from her husband, William King, who is the present appellant, on the ground of cruel and inhuman treatment. The parties were married in 1834, and the bill was filed in 1854. There were no children born of the marriage, but the defendant had several children by a former marriage living with Mm. In Ms answer to the bill, the defendant denied the alleged acts of violence on his part, and alleged that the complainant’s' own misconduct and violent temper produced all their family difficulties, that she compelled him to send Ms children away from home, that she allowed him to have no peace or comfort, refused to treat him with common civility, calléd him by abusive names, &c.</p> <p>The evidence set out in the record, is very voluminous, but a statement of it in detail is unnecessary. Many exceptions were taken to the rulings of the chancellor on the evidence, in receiving the confessions and declarations of-the party, and in refusing to suppress depositions on account of defects in the commissioner’s returns; but these matters require no particular notice. On final hearing, on pleadings and proof, the chancellor granted the prayer of the bill; and, in decreeing alimony to the complainant, declared that she was entitled to 'an amount equivalent to .her dower interest-and distributive share under the statute, as if she had survived her husband; and he therefore allowed her, out of the defendant’s estate, “a sum of money equal to the legal interest on one-third of the value of the defendant’s real estate, as it existed at the commencement of the suit, together with a sum of money equal to one-fifth of his personal estate," choses in action, and money held by or -belonging to him.” The decree of the chancéllor is now‘assigned for error, together with his rulings on the defendant’s exceptions to the complainant’s testimony.</p>

Tried before the Hon. Robert Dougherty. This action was brought by James Maddox, agaihst the appellants, to recover damages for entering upon certain lands in Chambers county, cutting down the trees, digging up the soil, &c. The defendants pleaded separately, in short by consent, not guilty, with leave to give in evidence any special matter in bar of the action. The plaintiff having died, the suit was revived in the name of his executrix, who is the present plaintiff.

<p>[question of prioeity between judgment creditors.]</p> <p>1. Construction of Vith section of Code. — The term “proceeding”, as used in the 12th section of the Code, which declares that “no action, or proceeding”, commenced before its adoption, shall be affected by any of its provisions, does not include a judgment, which is an entire act, — an act which cannot, in any proper sense, be said to be “ commenced” before a certain day.</p> <p>2. Lien of judgments on land. — The provision of the Code (§ 2456), which makes a judgment a lien on the real estate of the debtor only from the time of the delivery of an execution to the sheriff, applies to judgments rendered before its adoption.</p>

Tried before the Hon. ANDREW B. Moore. This action was brought in August, 1854, by James M. Boyldn against Daniel Rain, to recover the possession of a certain tract of land, which the plaintiff claimed in right of his wife, together with damages for its detention.

<p>Appeal from the Chancery Court of Pike.</p> <p>Heard before the Hon. Wade Keyes.</p> <p>The material facts of this caso, as disclosed by the pleadings and proof, may be thus stated : On the 8th September, 1843, one William B. Darby executed a deed to his brother, Jeremiah Darby, by which, in consideration of natural love and affection for his niece, Sarah Eliza Hanchey, he conveyed a negro woman and her children to said Jeremiah, in trust for the support and maintenance of the said Sarah and her children; and the deed contained the following provisions: “ Said property is to be held by the said Jeremiah Darby in trust for the maintenance and support of the said Sarah, during her natural life, and the heirs of her body, should any be begotten; and, at the death of the said Sarah, the same is to be divided equally and proportionally between her children, should she have any. To have and to hold the aforesaid property, to him, the said Jeremiah Darby, and his heirs, in trust, however, for the use and maintenance hereinbefore named. And it is hereby understood by these presents, and expressly declared* that the aforesaid property is to beheld by the said Jeremiah Darby in trust for the use of the said Sarah and her children, should there be any, during the life of the said Sarah; and at her death, the same is to vest absolutely, and become the absolute property of ,tlie children of the said Sarah, which she may hereafter have by the said John Hanchey,- and the legal heirs of such as may be deceased, to be by them held and enjoyed forever. And it is further understood, that if, during the life of the said Sarah, it should become necessary, in the view of the said Jeremiah Darby, to sell off a part, or the whole of said property, for the benefit and maintenance hereinbefore named, then, and in that case, it shall be lawful for the said Jeremiah Darby to dispose of a part or all of said property, at public or private sale, and apply the proceeds arising'from such sale to the use hereinbefore named; and should the said Jeremiah Darby deem'it necessary, during the life of the said Sarah, to dispose of said property, or a part thereof, it shall be lawful for him to execute titles to the purchaser in his own name, thereby barring the interest of the said Sarah and her children in said property, which they may have either in law or equity. In witness whereof”, &c.</p> <p>• At the time this 'deed was'executed, William B. Darby, the grantor, had no title to the slaves conveyed, nor did he have possession of them; but the slaves belonged to Wiley White, who was the father of the said Sarah, and who made a fraudulent sale of them to the said Darby, in order that the latter might convey them by deed to said Sarah, — the who,le transaction being a scheme to defraud said. White’s creditors, and this fact being known to the said Sarah at the time. The trustee named in the deed, after his acceptance of the trust, became insane, and was removed by the chancery court; and on the 21st October, 1845, said court,, on the application of Mrs. Hanchey, appointed Eli Henderson as trustee, in his stead,- who thereupon accepted the trust, and entered into bond, At the time said Henderson accepted the trust, he • was privy to the fraud attending the transaction, and the negroes had been privately removed to Arkansas, with his knowledge, to avoid the debts of said Wiley White.</p> <p>On the 8th November, 1845, Mrs. Hanchey, whose husband had previously died, executed to Henderson a power of attorney, authorizing him to go .to Arkansas and sell the ne-groes, and to apply the proceeds to the payment of White’s liabilities ,on his official bond as sheriff, on which Henderson was bound as surety. Henderson 'accordingly went to Arkansas, took possession of the negroes under the power of attorney, carried them, to Mississippi, and there sold them for $700, which was about the average market price of slaves. With this money he returned to Alabama, and Mrs. Hanchey then gave him a receipt for the amount, acknowledging that it had been applied according to the provisions of the deed of trust; but, at the time this receipt was given,'Mrs. Hanchey knew that the money was to be applied to the payment of White’s liabilities as sheriff, and consented thereto, and Henderson accordingly so applied it.</p> <p>In December, 1846, Henderson applied to the court for a final settlement of his trusteeship, and a final settlement was made in November, 1847. On this settlement, Henderson charged himself with the $700 realized from the sale of the negroes, and obtained credit for the amount specified in Mrs. Hanchey’s receipt, and then resigned his trust; but there was no order discharging him by the court,</p> <p>In June, 1851, Mrs. Hanchey, having intermarried with Hugh R. Segars, filed her bill in chancery, by her said husband as nest friend, against said Henderson, praying that said final settlement and receipt might be set aside and held for naught, that an account' might be taken of the trust property which had come to the hands of Henderpon as trustee, that he might be removed from the trusteeship, and her husband appointed in his stead; and the prayer for other and further relief was added. The bill alleged the execution of the deed of trust, the removal of the first trustee, the appointment of Henderson, and his acceptance of the trust; that complainant consented to his sale of the negroes, on his representations that it was necessary for her support; that he applied the proceeds of sale to the payment of liabilities against himself and others, and afterwards, by repeated im-portunities, and by taking advantage of his confidential relation, obtained from complainant the receipt which he used as a voucher on the settlement of his trusteeship, and thereby obtained credit to the amount therein specified.</p> <p>An amended bill was afterwards filed, bringing in as parties complainant Hugh R. Segars, in right of his -said wife, Mary A. Segars, an infant daughter of said Hugh R. and. Sarah E. Segars, and John W. Hanchey, a minor son of said Sarah and her first husband.</p> <p>The defendant answered the bill; admitting his acceptance of-the trust, and all the other material facts alleged;- setting up the final settlement and receipt, and the original fraud in •the execution of the deed, in bar of the relief sought by the bill; and demurring for want of equity.</p> <p>The chancellor rendered a decree in favor of the complainants, which is now assigned for error. ■</p> <p>1. If all the complainants are not entitled to relief, the bill must be dismissed. — Moore v. Moore, 17 Ala. 631; Wilkins v. Judge, 14 ib. 137.</p> <p>2. Under the terms of the deed, Mrs. Segars did not take a separate estate in the slaves, but her husband (Hanchey) took an estate in them during her life; and Mrs. Segars, therefore, was not entitled to any decree against the appellant. — Lamb v. Wragg & Stewart, 8 Porter, 73; Cook v. Kennerly & Smith, 12 Ala. 42; Pollard v. Merrill & Eximer, 15 ib. 169; Strong v. Gregoi-y, 19 ib. 146; Bender v. Reynolds, 12 ib. 446; Gayle v. Br. Bk. at Mobile, 21 ib. 414.</p> <p>3. But, if Mrs. Segars took a separate estate in the slaves, then, -after the death of her first husband, she had the undoubted right-to dispose of her separate estate in any manner she thought proper, and a court of equity would -have compelled the trustee to hold her interest for the use of her alienee. — Greenleaf’s Cruise, m. p. 448. Even if she had been a feme coveré at the time she authorized the appellant to dispose of the property, she would have had the right to make such a disposition of her interest in it, if she chose. — Hooper v. Smith, 23 Ala. 639; Bradford and Wife v. Greenway, Henry & Smith, 17 ib. 800.</p> <p>4. The evidence shows that the negroes conveyed by the deed were liable for the debts of White, that the proceeds of their sale were applied to the payment of his debts, and that Mrs. Segars, with a full knowledge of the application of the money, and after she had consulted counsel, signed the receipt set up by the appellant. The proceeds of sale were thus applied as the law, upon a proper proceeding being had for the purpose, would have decreed their application; and the trustee was authorized to make such an application, since the law would have compelled Mm to make it. — Elliott v. Horn, 10 Ala. 348. Mrs. Segars cannot' now object to the application.</p> <p>1. The deed executed by Darby created a separate estate in Mrs. Segars, so lar as her husband was concerned. — Hill and Wife v. McRae, 27 Ala. 175; Rugely v. Robinson, 10 ib. 703; 2 Beavan, 63; 3 ib. 20; 3 Hare, 185; 1 Leigh, 443.</p> <p>2. The estate of the wife was inalienable. The only right she had was to a support out of the property during her life, the corpus of the property being given to her children after her death. This right to a support was not capable of being identified and separated from that of the other cestuis que trust. How could a creditor or purchaser reach it, or ascertain and set apart the extent and amount, of it ? A conveyance of such an interest must be inoperative, since the subject-matter is so locked up and hedged in as to be incapable of separation without prejudice to the rights of others. — Spear ■v. Walkley, 10 Ala. 328; 12 ib. 652; Andrews v. Hobson, 23 ib. 219; Hill and Wife v. McRae, 27 ib. 175.</p> <p>3. If Hanchey ever had any interest in the negroes, under the dfeed, that interest Was merged by his death. — 4 Leigh, 550; 11 Humph. 425; 2 Swan, 460.</p> <p>4. The trustee, by accepting the trust, incurred all the responsibilities which attach to the relation of trustee and cestui que trust, and is held to the validity of the deed as a bona fide conveyance. — Godwin t. Yonge, 22 Ala. 553; Andrews v. Hobson, 23 ib. 219; 7 ib. 652; Roden v. Murphy, 10 ib. 804; Marler v. Marler, 6 ib. 367; 1 Yesey, sr., 522.</p> <p>5. The receipt is open to explanation, and does not estop the complainant. — Johnson v. Johnson, 5 Ala. 95; Saunders v. Hendrix, 5 ib. 225; McCravey v. Remson, 19 ib. 430; Ware v. Cowles, 24 ib. 449 ; 9 B. & C. 577; 6 Pick. 445. ■</p>

Tried before tbe Hon. Nat. Cook. This action was brought by John A. Urquhart, as administrator of Eli S. Shorter, deceased, against Elizabeth Shorter and George Hargraves, as administratrix and administrator of James H. Shorter, deceased, to recover damages for the conversion of a slave by the defendants’ intestate in his life- • time; and was commenced in March, 1849.

<p>[DETINUE JOB SLAVES BY REMAINDER-MEN AGAINST PURCHASER AT SHERIFF’S SALE UNDER EXECUTION AGAINST TENANT EOR LIFE.]</p> <p>1. Husband’s right to wife’s chattels — In this State, prior to the passage of the . several statutes securing to married women their separate estates, if slaves were bequeathed to one person for life, with a vested remainder to á married woman and others as tenants in common, and, with the assent of the executor, went into the possession of the person having the life estate, the interest of the wife vested in the husband, no adverse possession being shown, and ho became tenant in common with the other remainder-men.</p> <p>2. Misjoinder of plaintiffs fatal. — In detinue for a slave, by several remainder-men, tenants in common, after termination of precedent life estate, if the wife, whose interest is vested in her husband, be joined as co-plaintiff with him, the misjoinder is fatal to the entire action.</p>

<p>Appeal from the Chancery Court of Cherokee.</p> <p>Heard before the Hon. James B. Clark.</p> <p>This bill was filed by Mrs. Jane Machem, the appellant, against William Machem, as the executor of her deceased husband, James Machem, to enjoin an action at law for the recovery of certain slaves, and to have them set apart as her separate estate under the will of her father, Merry Hall, or as her distributive share of her husband’s estate. The bill was filed in October, 1849; the action sought to be enjoined was before this court, on writ of error, at its January term, 1849, and may be found reported in 15 Ala. 873; and the clause of the will, under which the complainant claims the slaves, is in these words: “ I leave to Jane Machem two negroes, Tamar and Prince, during her life, then to her bodily heirs; if there should be no heirs, for the said negroes and increase to go back to the heirs, and an equal division made amongst the heirs.”</p> <p>Th& bill, as amended, alleged that said James Machem, before his marriage with complainant, and when he asked her father for her hand in marriage, was distinctly informed by the said Merry Hall that it was his intention, by his last will and testament, to settle her portion of his estate upon complainant for her separate use, and to exclude the marital rights of her husband; that said James expressed himself satisfied with this arrangement, and consented that the property should be so settled; that said Merry Hall, after the intermarriage between complainant and said James Machem, departed this life, in South Carolina, where he resided, after having made and published his last will and testament, which was duly admitted to probate after his death, and letters testamentary granted to the defendant, as executor, by the county court of Cherokee county, Alabama; that the testator intended, by the clause of his will above quoted, to give complainant a separate estate in the slaves during her life, and, in the event of her death without children, that the slaves should then go to the testator’s heirs; that this was the construction put on the will, both by the testator and by said James Machem; that said James, after the testator’s death, refused to receive' the slaves, and directed the executor to deliver them to complainant as her separate property; that the executor accordingly delivered them to her, and she held them as her own separate property during the life of her said husband, who uniformly disclaimed all interest in them, treated and recognized them as belonging to his wife, required her to pay their taxes and other necessary expenses, and kept them separate from his own negroes; that said James made no disposition of said slaves by his last will and testament, declaring to a.friend that he considered them his wife’s property, that he desired her to have them, and that he would not interfere with her rights by attempting to bequeath them; that said James was possessed of a large estate at the time of his death, and left several children by a former marriage; that complainant dissented from his will within the time prescribed by the statute; that the executor has sold most of the .personal estate, and paid most (if not all) of the outstanding debts; that he has commenced suit against complainant, in the circuit court of Cherokee, to recover these slaves, to whom she is much attached as they are family ne-groes; and that more than eighteen months have elapsed since the grant of letters testamentary to the defendant. The prayer of the bill is, “ that said negroes may be set apart to complainant under the will of her said father and the intention of her said husband, or as her portion of the estate of her said husband dnder the laws of distribution; that the defendant be perpetually enjoined from proceeding with his said action at law; and for such other and further general relief as may seem meet and consist with equity.”</p> <p>The executor answered the bill, — denying that the will of Merry Hall was intended to create a separate estate in the slaves m the complainant, or that her husband so recognized and treated them, or that possession was delivered to her .by the executor, or that her husband uniformly disclaimed all interest in them, or that' he intended complainant to have them after his death; and alleging, on the contrary, that the legal effect of the will* was to vest the property in the husband, that he reduced the slaves to his possession, and that, if he ever declared them to be the separate property of his wife, such declarations were made in ignorance of his rights, and are therefore of no binding effect.</p> <p>■ The evidence taken in the cause is quite voluminous, but it is not deemed necessary to give an abstract of it.</p> <p>, The chancellor held, 1st, that the complainant could not retain the possession of the slaves against the demand of the executor, and ask a court of equity to set them apart to her as her distributive share of the estate; 2d, that the alleged agreement between the complainant’s father and husband, prior to her marriage, even if proved, could have no effect on the construction of the father’s will; 3d, that the will did not create a separate estate in the complainant; 4th, that the evidence was not sufficient to prove the allegation that the husband refused to receive the property, or that he always disclaimed any interest in it; 5th, that the declarations of the husband, after reducing the property to possession, to the effect that it belonged to his wife, would not, if made through ignorance or mistake of his rights, create a separate estate in the complainant; and, 6th, that his failure, either through ignorance or mistake, to reduce the property to possession as husband, prevented his marital rights from attaching. He therefore, dismissed the bill, but without prejudice to the right to file another, and dissolved the injunction; and his decree is now assigned as error.</p> <p>The property in the slaves in controversy, at law, is in the defendant, as was decided in Machen v. Machen, 15 Ala. 378; but it is there strongly intimated that the complainant might have relief in equity, and that intimation is reiterated in the case of Williams v. Maull, 20 Ala. 721. The testimony in this record is stronger than it was bn the trial at law, and is sufficient, upon legitimate argument, to sustain tbe bill.</p> <p>These slaves, being a legacy from the wife’s father, are a mere chose in action, until the husband asserts his marital rights; and if he does not do this in his lifetime, the right of property does not go to his personal representative, but survives to the wife; and he must reduce them to possession with the intention of asserting his right as husband, and not as trustee. — Andrews & Bro. v. Jones, 10 Ala. 400; Hogan v. Bell, 4 S. & P. 286; Jennings v. Blocker’s Adm’r, 25 Ala. 422; 4 Rawle, 468; Wall v. Tomlinson, 16 Yesey, 413; Blount v. Bestland, 5 ib. 515; Baker v. Hall, 12 ib. 497; 7 ib. 294; 1 Wms. on Ex’rs, 616; Clancy on Rights of Married Women, 139-40.</p> <p>In this case, the evidence abundantly proves that the husband never received the property as husband, but, on the contrary, at the time it was delivered to his wife by the executor, he disclaimed any interest in it, and so treated it during his whole life; always showing, both by act and declaration, that he regarded it as his wife’s property. He suffered her to control the slaves, made her pay their taxes, doctor’s bills, and other necessary expenses out of her own money, and in all respects, so far as was practicable, treated them as her' separate property; and these acts and declarations are admissible evidence against the defendant. — Andrews & Bro. v. Jones, 10 Ala. 427; Burnett v. Branch Bank, 22 ib. 642.</p> <p>Courts of equity recognize and enforce contracts between husband and wife, which a court of law cannot regard; and whenever the conduct of the husband is such as to lead, fairly and reasonably, to the conclusion that he had released his rights in favor of his wife, or had set apart property for her separate use, or had made a gift of the property to her, the right of the wife will be sustained, in a contest between her and the personal representative of her husband. — Williams v. Maull, 20 Ala. 721; Puryear v. Puryear, 12 ib. 13; Gamble v. Gamble, 11 ib. 974. Where stock was purchased by the husband, in the name of himself “and wife, on his death it was decreed to her as survivor. — Rider v. Kidder, 10 Yesey, 367; also, Sledge v. Clopton, 6 Ala. 589. The bill does not, in terms, allege a gift, or a relinquishment, or a failure on the part of the defendant’s testator to assert his marital rights; but it charges the facts which, in law, constitute a relinquishment or gift, and the court will so declare it.— Bishop y. Bishop, 13 Ala. 475; Eldridge y. Turner, 11 ib. 1050; Gilchrist y. Gilmer, 9 ib. 985.</p> <p>It is competent for the owner of property to release any right, to any hind of property, which he has not in possession; and equity will Uphold a release or relinquishment by a husband to his wife. — Sheppard’s Touchstone, yoI. 1, p. 322; Andrews & Bro. y. Jones, 10 Ala. 427, 461. A relinquishment of personal property may be made as well Yerbally as in writing; and if complainant’s husband, at the time it was delivered by the executor, had made a written relinquishment of it to his wife, there can scarcely be a question of its validity, especially when it is remembered that it was never revoked or repudiated by him.</p> <p>The complainant’s father bequeathed these slaves, under the belief that he was securing them to her sole and separate use; and the husband received them under the same belief, and with full notice. In such case, a trust arises in favor of the wife, which a court of equity will enforce. — Betts v. Betts, 18 Ala. 787.</p> <p>This is an equitable fund, which could not be reached, in the hands of Merry Hall’s executor, in a court of law; and a court of equity, before it would enforce the rights of the husband, would require him to make a reasonable provision for the wife. — Upchurch v. Norsworthy, 12 Ala. 532; Andrews & Bro. v. Jones, 10 ib. 461; Terrell v. Green, 11 ib. 216; Inge v. Forrester, 6 ib. 421; 2 Story’s Equity, § 1403. It is competent for the husband to do voluntarily what a court of equity would have- compelled him to do; and the provision was a reasonable one, under the circumstances in evidence.</p> <p>The circumstances of the case authorize the court to presume a gift by the husband to the wife, which will be good as against the husband’s executor. — Puryear v. Puryear, 12 Ala. 13; Andrews & Bro. v. Jones, 10 ib. 427; Williams v. Maull, 20 ib. 721.</p> <p>In decreeing in favor of the complainant, the court would! but carry out the intention of her husband, who, if he had not supposed that these slaves already belonged to his wife, would have bequeathed them to her. If any mistake then was made, the husband was not misled by it, but did that only which he would have done in more unquestionable form had he known his rights. — Juzan v. Toulmin, 9 Ala. 662; •Jones v. Watkins, 1 Stew. 81; 1 Story’s Equity, § 110.</p> <p>The complainant has not an adequate and complete remedy at law, and is therefore entitled to come into equity. Her claim is based not merely on the fact that her husband never asserted his marital rights, but on the additonal ground that he relinquished or gave the negroes to her ás an 'equitable provision, and that this fact is not available at law. — Williams v. Maull, 20 Ala. 732; Anderson v. Hooks, 9 ib. 704; Teague-v. Bussell, 2 Stew. 420.</p> <p>1. In equity, the complainant can hold the property by virtue of some trust in her favor, which a court of law could not establish.</p> <p>2. That the will of Merry Hall does not create such a trust, see Machen v. Machen, 15 Ala. 373; and that the will cannot be reformed, see 1 Story’s Eq. § 179, and cases cited.</p> <p>3. The bill does not pretend that complainant’s husband, by his declarations, ever created; or attempted to create, any trust in her favor in the property; but, on the contrary, it positively negatives the idea that he ever assumed to do anything whatever with it.</p> <p>4. The only effect of the admissions and acts of the husband, charged in the bill, would be to prevent his marital rights from attaching; in' which event, complainant, as the survivor, holds the legal title, and has a full and adequate remedy at law. — Puryear v. Puryear, 12 Ala. 13.</p> <p>5. The allegations of the bill, as to the husband’s disclaimer of his marital rights at the delivery of the property, are not supported by the proof. The witnesses Milly and Thomas Hall are positively contradicted by Paine; besides, they vary materially from each other, and their evidence is on its face unreliable. The bill alleges a refusal by the husband to receive the property as his own, and a direction to deliver it to complainant, while the proof shows only an agreement to hold the property as his wife’s separate estate; and this variance is' fatal. — Owens w. Collins, 23 Ala. 845;, Make & Freeman v. Day Co., 22 ib. 132; Gibson v. Carson, 3 'ib. 421; Julian v. Reynolds, 11 ib. 960.</p> <p>6. The admissions and declarations of the husband were made in ignorance of his marital rights, and cannot affect him. — 13 B. Monroe, 213; Smith v. Shackleford, 9 Dana, 416; Leferce v. Robinson, Littell’s Select Oases, 22; Moore v. Hitchcock, 4 Wend. 292; Hawley v. Bennet, 5 Paige, 104; Freeman v. Boynton, 1 Mass. 488; Warden v. Tuckei', ib. 452; Gamble y. Gamble, 11 Ala. 916; 1 Story’s Eq. § 130.</p> <p>1. The delivery to the wife, unaffected by the declarations of the husband, vested the property in him. — Machen v. Ma-chen, 15 Ala. 313. This decision is conclusive of the law of this case; but, even if it were permitted to go behind it, it is amply sustained by authority. — Magee v. Toland, 8 Port. 36; Pitts v. Curtis, 4 Ala. 350; Chamber v. Perry, 11 ib. 129;. Hopper v. McWhorter, 18 ib. 229; McDaniel v. Whitman, 16 ib. 344; Lenoir v. Raney, 15 ib. 669; Whitaker v. Whitaker, 1 Dev. 310; Granberry v. Mhoon, ib. 456; Pcttijohn v. Beasley, 4 ib. 512. In these cases, no actual intention of asserting his marital rights was shown by the husband; and yet it was held that they attached, and, in most of the cases, as against the wife surviving.</p> <p>8. As to the rights of the surviving wife, the maxim applies, equitas sequitur legem. — 1 Madd. 411-8; 1 Story’s Eq. § 64; Law Library, vol. 59, top p. 106.</p>

<p>Appeal from tbe Circuit Court of Barbour.</p> <p>Tried before tbe Hon. John G-ill Shobteb.</p> <p>This action was brought by John B. Henry against Samuel Jones, in September, 1852, to recover damages for the defendant's wrongful act in entering on plaintiff’s land, pulling down a gate, and erecting a fence thereon, thus obstructing plaintiff's right of way. The only plea was the general issue, with leave to give any special matter in'evidence.</p> <p>“ On the trial,” as the bill of exceptions states, “ it was proved that the plaintiff, early in the year 1850, became the owner in fee of the lands described in his declaration, and has ever since owned, used, and possessed them as his plantation; that he thus became the owner of said lands by purchase from one Beard; that the defendant, early in the year 1851, by purchase and conveyance from one Fraley, became the possessor and owner in fee of a section of land adjoining plaintiff’s said lands; that defendant, whilst he was on a treaty with said Fraley for his land, promised plaintiff that, if he succeeded in buying the land from Fraley, he would let plaintiff have forty acres of it, at a price to be afterwards agreed-on, if it did not conflict with his interest; that after defendant had made said purchase from Fraley, and early in 1851, he and plaintiff tried to agree upon and designate the forty acres which defendant had so promised to let plaintiff have, but had not agreed; that plaintiff thereupon told defendant, that all he wanted said forty acres for was to procure a right of way for himself, his family and vehicles, from his dwelling-house to his said plantation, over and through the land bought by defendant from said Fraley; that defendant there- ■ upon told plaintiff, that, if that was all he wanted, he should have a right of way through said land, if lie would erect and keep up a good gate at the place where such road would pass through and intersect the fence which separated the cultivated land of plaintiff from the cultivated land of defendant, and would keep said gate closed or fastened; that plaintiff accepted this offer, and thereupon both parties agreed to it; that this agreement was verbal, and no writing was ever executed between the parties; that defendant’s said land was situated between plaintiff’s dwelling-house and his said plantation; that the distance from his dwelling-house to his said plantation, by the road so agreed on, was about a mile, and without this road, some three or four miles; that plaintiff, immediately after said agreement, built a bridge over a creek running through defendant’s said land; and also erected a gate at the place where the road so agreed on intersected and passed through the fence which separated th'e cultivated lands of the plaintiff and defendant; that said gate was hung on hinges, on a large post prepared and imbedded for the purpose; that said gate and post were erected entirely by plaintiff, and were entirely on his said plantation, (being the land described in his declaration,) but only a few feet from the line which divided his plantation from the defendant’s said land; that the fence which separated their cultivated lands was built, before either of their said purchases, and some five or'six years ago, by said Eraley, with the assent of said Beard, and upon the line as run by a county surveyor; that a considerable (if not the greater) part offsaid fence was in fact on the line, but the panels of the fence immediately adjoining said gate, as well as said gate and post, were entirely on plaintiff’s land described in his declaration; that said road was opened in 1851, as soon as said gate was erected, and said bridge built; that it was used in 1851, and until May, 1852, when said bridge.was washed'away by a large freshet; that plaintiff, soon after said' bridge was washed' away, commenced getting timbers to rebuild it, whereupon defendant, early in June, entered upon plaintiff’s said land, took down said gate, and built a fence in its place across said road) uniting the fence as it was before the erection of the gate by the plaintiff; that defendant, a few days afterwards, admitted to witness,' who was a brother in the church, that he had done this, and that in so doing lie had done wrong; that defendant stated, in this same conversation, that he had agreed to let plaintiff have the road on condition that he would put up a good -gate and keep it closed, and that plaintiff had failed to comply with this condition. There was evidence, also, tending to show that, at several times before said gate was taken down, by defendant, it was in bad order, and insufficient to keep stock out of defendant’s field, if there was any stock in plaintiff’s field; that in 1851 some stock had got out of plaintiff’s field into defendant’s field; that the outside fence of plaintiff’s field was in bad order; and that defendant’s crop had thereby been slightly injured.</p> <p>“ This being all the evidence in the cause, the court charged the jury, that if the gate and fence in controversy divided the cultivated lands of the plaintiff from.the defendant, it was a partition fence; that if it was a partition fence, either plaintiff or defendant might lawfully repair it, if it needed repair ; .and that if such partition gate or fencing was out of repair, and insecure for the protection of the defendant’s plantation, and if it was necessary for the repair to remove the gate, and to connect the panels of the fence by rails, and the defendant did remove the gate for that purpose, and connect the panels of the fence by rails, he. was not guilty of a trespass.</p> <p>“The plaintiff excepted to this charge, and asked the court to instruct the jury, that if the gate was erected by the plaintiff on his own land, and the defendant entered upon the plaintiff’s said land, without the plaintiff’s consent, and took down the gate, — then defendant was guilty of a .trespass; and that, although the gate and fence, might be a partition fence, and needed repair, yet, if it was not necessary in effecting the repair to remove the gate, or if defendant did not remove it for that purpose, he would, be guilty of a trespass. This charge the court gave, but further charged the jury, that if the gate and fence formed a partition fence, and was so used and recognized by both plaintiff and defendant, and was out of repair, and it was necessary in its repair, to take down and remove the gate, and defendant took it down and removed it for that purpose, and repaired the fence, — he was not guilty of a trespass, although the gate was on plaintiff’s land; and to this charge also the plaintiff excepted.”</p> <p>The charges of the court are now assigned as error.</p>

Tried before tbe Hou. Johh G-ill Shoetee. Tbe record in this case shows tbe following facts : Pratt & McKenzie commenced suit against Keils & Sylvester, on certain bills, of exchange,-in April, 1855. At tbe May term, 1855, to which tbe summons was returnable, tbe defendants, by attorney, filed six special pleas; and at tbe same term a judgment nil dicit was rendered for tbe plaintiffs.

Heard before the Hon. Wade Keyes. This bill was filed by James H. Thompson, the appellant’s intestate, on the 20th November, 1845, and alleged the following facts: That on the 29th February, 1840, A. H. Christian and J. H. Carr (the former professing to act as trustee, and the other as the authorized agent of W. H. Carr, who was the other trustee, under a deed of trust which they pretended had been executed to said trustees by Pollard & Carr, a mercantile firm in the town of…

Tried before the Hon. C. W. RapieR. This action was brought by John S. Gliddon against Alexander McKinstry, and the complaint was as follows: “ The plaintiff claims of the defendant $225, due on an order drawn by John A. Cuthbert, on the 27th day of June, 1846, 'as follows: ‘Alex.

<p>[ASSUMPSIT ON THE COMMON COUNTS FOB SEBYICES RENDERED.]</p> <p>1. Admissibility of evidence of plaintiff’s general good character. — Where plaintiff and defendant are both examined as witnesses under the statute, in assumpsit on the common counts for services rendered, and contradict each other in some particulars, and the defendant then introduces a witness who testifies to conversations of the plaintiff which, in some particulars, contradict her testimony on the trial, the plaintiff cannot he allowed to prove her good character, by the declarations of the defendant, or in any other manner.</p>

Tried before tbe Hon. Ales. McKinstry. This action was brought by Grant & Nickels, late partners, suing for tbe use of John D. Hutchinson, against David Stodder, to recover damages for tbe conversion of eighty boxes of tobacco.

<p>[assumpsit on the common counts Por money had and received.]</p> <p>1. Oonslriwiion of policy of insurance. — A provision in a policy, that “property held in trust, or on commission, must he insured as such, otherwise the policy will not coyer it,” includes everything in which the insured has only a qualified interest, with the xwsscssion, while the ownership is in a third person. '</p> <p>2. When assumpsit for money had and received does not Ik. — Assumpsit on the common counts cannot he maintained to recover money received hy the defendant from an insurance company, under a policy effected hy him, in his own name, on certain property some of which belonged to the^plaintiffs, when the money was not received, either in whole or in part, on account of plaintiffs’ property, and their property was not in fact oovered hy the policy.</p>

<p>[ASSUMPSIT ON NOTE GIVEN FOR PURCHASE MONEY OB' SLAVE — PLEAS, FAILURE OF CONSIDERATION AND FRAUD.]</p> <p>1. Warranty in bill of sale of slave construed. — In a bill 'of sale of a slave, the words, “ which said negro I do warrant and defend unto him, the said L., his heirs and assigns forever,” are a warranty both of soundness and title.</p> <p>2..Sill of sale construed most strongly against malcer. — The salutary rule, that a written instrument, the language of which is of doubtful' import, or capable of two constructions, must be construed most strongly against the maker, is applicable to bills of sale of slaves. •</p> <p>3’. Binding effect of judicial decisions. — In the construction of a warranty in this case, the court adhered to the construction placed on a similar warranty in Duff v. Ivy, 3 Stew. 140; and the decision was based, partly, on the fact that that case has been acquiesced in for more than twenty-five years, and has probably be'en acted on as a rule of property in many instances.</p> <p>4. General warranty of soundness covers what defects. — A general warranty of soundness does not cover visible and external defects, which are plain and obvious to the purchaser, — such as the eye can discover and enable him to comprehend; but it covers all other defects, even though the purchaser is informed of their nature, character and extent.-</p>

<p>Appeal from the Chancery Court of Macon.</p> <p>Heard before the Hon. James B. Clabk.</p>

Tried before the Hon. Thomas A. Walker. This was an action for a malicious presecution, and was commenced in September, 1854. The defendants pleaded the statute of limitations of one year, to which plea the plaintiff demurred. The court overruled the demurrer, and the judgment entry recites that, “ by reason of this ruling, the plaintiff was forced to take a nonsuit, which he did;” but the point was not reserved by bill of exceptions. This ruling is now assigned as error.

<p>[Bill is equity by wife against husband fob specific performance of POST-NUPTIAL AGREEMENT.]</p> <p>1.' Variance between allegations and proof. — In a bill for specific performance, tlie failure to prove an alleged stipulation of tlie contract which, the law implies is no variance; as where the bill alleges an agreement by the husband to settle property on the wife, for her sole and separate use, and the evidence fails to show the exclusiveness of the promised gift.</p> <p>2. Certainty requisite in contract. — It was objected in this case, on the part of the defendant, that the uncertainty in the terms of the contract was an insuperable obstacle to its specific execution; but the court, while admitting that great certainty and precision in the averment and proof of contracts, whether verbal or written, were indispensable pre-requisites to their specific execution, held that, in view of the looseness and inaccuracy of language which showed that the parties and witnesses were uneducated, and construing the inartificial expressions of the parties by their subsequent declarations showing the meaning which they attached to the words, the terms of the contract were sufficiently certain.</p> <p>3. Contract must be fair, just, and reasonable. — It is an unquestioned doctrine of equity, that only those contracts vhipli are fair, just, and reasonable, will be specifically execute^.</p> <p>4. Inadequacy of consideration. — When the inadequacy of consideration shows that the contract is unfair, inequitable, or unconscionable, even though it might not be sufficient, if the contract were executed, to induce the court to rescind or set it aside, a specific performance will be refused.</p> <p>5. When equity will sustain and enforce post-nuptial voluntary settlement in favor of wifi. — Equity will sustain a post-nuptial voluntary settlement in favor of the wife, when executed, and will specifically enforce, as against any other • person than the party himself, an agreement to make such a settlement; but it will not specifically execute such an agreement against the party himself, because, until executed, it is revocable.</p> <p>6. What consideration will sustain specific execution of agreement to make such settlement. Neither the moral obligation of the husband to provide for his wife, nor the fact that he received property byher, nor both these considerations together, will justify a specific execution of a post-nuptial agreement on his part to make a settlement on her; but when, superadded to these, there is a valuable consideration, irrevocably executed on the part of the wife, a specific performance will not be refused on account of the inadequacy of that consideration. In this case, the court decreed a specific performance of an agreement to settle on the wife slaves valued at more than $4,000, in consideration of her relinquishment of dower in certain lands sold at $2,600; it being also alleged and proved, that the husband received the slaves, with other property, by the wife, and that there were no children of the marriage to be provided for-</p> <p>7. When contracts concerning personally will be specifically enforced. — Generally, equity will not specifically enforce contracts concerning personal property, because there is a remedy at law in a suit for damages; but where there is no remedy at law, as in case of post-nuptial agreements between husband and wife, a specific performance may be decreed.</p> <p>8. Removal of husband as trustee. — Whore the wife files a bill against her husband to compel the specific execution of an agreement to make a settlement on her, and does not allege that she is separated from him on account of his improper conduct, or that ho intends toremovo from the State without her, or that she has reasons to apprehend a denial of her right to the property settled on her by the court, or that his habits are such as render him incapable of or unfit for the discreet and proper management of the estate, the court will not appoint another trustee in his stead, nor forbid his interference with the property.</p>

<p>Appeal from the Circuit Court of Shelby.</p> <p>Tried before the Eton. E. W. Pettus.</p> <p>The facts of the case are stated in the opinion of the court.</p>

Heard before the Hon. James B. Clark, The transcript in this case was filed at the June term, 1854, to which the appeal was taken. Errors were assigned at the same term; and, after joinder in error, the cause was argued on the merits, and submitted. At the January term, 1855, an opinion was pronounced, which was afterwards withdrawn, on petition for a ro-hearing, and a re-argument in writing ordered at the next term.

Tried before the Hon. Geo. D. Shortridge. This suit was commenced on the 12th September, 1854. The return of the sheriff was in these words : “ Executed the 23d September, 1854, by leaving a copy of this summons with each of the defendants.” Judgment by default was rendered against the defendants, at the term to which the summons was returnable, on the 27th October, 1854; from which judgment they now appeal, and here assign- the following errors: “1.

<p>Appeal from the Court of Probate of Butler.</p> <p>The proceedings in this case were had on the petition of Anna E. Cadenhead. by her guardian, for distribution of the estate of her mother, Sarah A. S. Willis, of which George T. Willis, the surviving husband of the said Sarah, was the administrator. On the hearing of the petition, as appears from the bill of exceptions, the petitioner proved that the said Sarah A. S. Willis, whose maiden name was King,first intermarried with-one Isaac N. Cadenhead. and'afterwards gave birth to the petitioner, who is her onh living child; that the said Isaac N. Cadenhead then died, and the said Sarah after-wards, on the 3d October.lm ...intermarried with the defend ant, George T. Willis; that the -aid Sarah died on the rim July, 1853, and the said delendant administered on hoi eM.iti on the 26th August, 1853; and that more than eighuen months had elapsed, after-the grant of said letters of admin istration, before the commencement of this proceeding.” The petitioner ■ then introduced a deed of gift from Henry King; dated October 5, 1845, by which, in consideration of natural love and affection, he conveyed certain negroes to the said Sarah, who was his daughter, “to have and to hold to the said Sarah, in her own separate, right, free and exempt from all debts or contracts whatever of any husband she may hereafter marry, and her heirs forever, in fee simple;” “ which said deed was regularly proved and recorded as the law directs.” She further proved, “ that the slaves mentioned in said deed were returned by said administrator as a part of said estate; and that said deed was executed and delivered to her mother at the time it hears date. And the petitioner thereupon insisted, that she was the sole distributee of said estate, so far as the negroes named in said deed are concerned, and entitled to a decree of the court ordering the administrator'to deliver them to her as such.”</p> <p>“The defendant proved, that he lived with the deceased, as her husband, from the time of their marriage until her death, on the 21st July, 1853; and that said slaves were in the possession of the deceased, under said deed, at the time of his intermarriage with her, and remained in his and'her possession until her death. And he thereupon insisted, that said slaves were subject to distribution between himself and said petitioner, and that the court ought to decree that he retain one-half of said slaves.”</p> <p>“ Upon this state of facts, there being, as appeared from the proof, sufficient property, aside from said slaves, to more than pay all the debts of the estate, the court ordered, adjudged, and decreed, that the petitioner was entitled to the entirety in said slaves, and that the defendant deliver the same to her; whereupon the defendant excepted.”</p> <p>This decree is now assigned as error.</p>

Tried before the Hon. Nat. Cook. This action was commenced in February, 1858, and was founded on an injunction bond, the condition of which, as alleged in the complaint, was, “ that if the said Jemima M. Cater, or her sureties for her, or her or their heirs, executors, administrators, or assigns, shall pay to the plaintiff, his executors, administrators, or assigns, all costs, loss, or damages, that he may or shall sustain by the illegal, wrongful, or improper suing out of…

' On the final settlement by Lewis P. Leonard of his administration on the estate of Martha Scears, deceased, at the October term of said probate court, 1855, the following proceedings were had: “It1 appeared in evidence, that the heirs of the said estate were, Willis Pollard, Richard Pollard, Lewis P. Pollard, and the heirs of Austin Pollardj deceased, (namely, Austin Pollard, jr., Oscar Pollard, Osborne H. Pollard, and Martha W. Armstrong, wife of Thomas T. Armstrong,) who…

'Tried before the Hon. Thomas A. Walker. The record in this case shows the following facts: On the 28th June, 1854, Temperance Shipman made affidavit, before the clerk of the circuit court of Sumter, “ that a certain judgment, recovered in said court at its May term, 1844, for the sum of $532, besides costs, wherein Hiram Jackson, administrator of Randall Jackson, deceased, is plaintiff, and Peter Jackson is defendant, belongs to, and is the property of this affiant; that…

The will of Enoch Travis, which was admitted to probate in Sumter county, in April, 1841, contained the following provisions: “ In the first place, it is my will and desire, that my plantation in Sumter county whereon I now reside, containing about eight hundred and ninety-seven acres, and all of my negroes on said plantation, consisting of about thirty-five in number, with all of my stock, consisting of horses, cattle, hogs, sheep, osen, and all of the household furniture…

Heard before the Hon. A. J. Walker. This bill was filed by the appellants, late partners, against Yincent M. Benham, as administrator de bonis non of Samuel Savage, deceased; and its material allegations were as follows : That on the 29th September, 1841, complainants! who were commission merchants in the city of New Orleans, accepted for one Geo.

The record does not show the name, of the presiding judge. This action was brought by Joseph W. Hall against 'Samuel W. Cockrell, and the complaint was as follows : “ The plaintiff claims of the defendant $850, for the breach of an agreement entered into by him on the 7th March, 1854, as follows: ‘ The following agreement was made and entered into this 7th day of March, A. D. 1854, by and between Joseph W. Hall, of the first part, and the intendant and council of the town of…

Tried before the Hon. John E. MooRe. This action was founded on a promissory note, of which the following is a copy : “ $140. .Twelve months after date, I promise (to pay), to. the order of Thomas A. Nelson, one hundred and forty dollars, for the hire of George for the year 1852.

Heard before tbe Hon. A. J. Walker. This bill was filed by George W. Carroll against Goodloe W. Malone and John L. Malone. Tbe material facts of tbe case are stated in tbe opinion of tbe court. On final bearing, on pleadings and proof, tbe chancellor dismissed tbe bill; and bis decree is now assigned as error. 1. Independent of our statute in reference to tbe assignment of bills, bonds, &c., Carroll would be entitled to tbe i\e-lief- sought by Ms bill.

Heard before the Hon. A. J. Walker. The facts of this case, as stated in the opinion of the court, were as follows: The bill was filed by the administrator of Philip O’Reilly, a deceased partner, against Michael B. Brady and Dennis C. Tynan, the two surviving partners, for an account and settlement of the affairs of the partnership.

Tried before the Hon. Thoma? A. Walker. This action was brought by the appellee, to recover of William Woosley, the appellant, the amount of his unpaid subscription to the capital stock of said railroad company. The summons was issued on the 5th September, Í854, and was returnable to the ensuing September term of the court; but the summons was not executéd twenty days before the return day, and the cause therefore stood for trial at the next term.

<p>Appeal from the Court of Probate of Clarke.</p> <p>In the matter of the last will and testament of John Dar-rington, deceased, which was propounded for probate by Edmund A. Deslonde and Robert D. James, as executors, and was resisted by the appellees. An issue being made up, and submitted to a jury, who returned a verdict against the validity of the will, the court rendered judgment against “ the plaintiffs, or proponents”, for the costs of their witnesses, and disallowed the probate of the will. The minute entry then proceeds as follows: “Thereupon came Edmund A. Deslonde, one of the proponents of said will, and craved an appeal, in open- court, to the next term of the supreme court, which is granted; and thereupon said Deslonde entered into bond, with E. A. Cowles and Wm. S. Trigg, security for the appeal, in the sum of $200.” The condition of the appeal bond is as follows: “ The condition of this obligation is such, that whereas the above bound Edmund A. Deslonde hath applied for and obtained an appeal, in a certain suit heretofore pending and determined in the probate court of Clarke county, in which the said John T, Carter and Eliza, bis wife, and Robert Darrington, are defendants, and said Deslonde and Robert D. James are plaintiffs, in tbe matter of tbe contest of tbe will of John Darrington, déceased, returnable to tbe next term of tbe supreme court, at Montgomery, on tbe first Monday in January, 1856 : Now, if tbe said Deslonde shall prosecute said appeal to effect, and pay and satisfy tbe judgment which shall be rendered in said cause by said supreme court, then this obligation to be void.”</p> <p>On these facts a motion to dismiss tbe appeal was made.</p> <p>1. James was one of tbe proponents of tbe will, and is one of the defendants to tbe judgment; while the appeal is prosecuted by Deslonde alone, and is therefore fatally defective.— Moore v. McGuire, 26 Ala. 461; Williams v. Tbe State, ib. 85; Dumas v. Hunter, at the present term; Wiswell v. Mun-roe, 4 Ala. 10; Savage & Darrington v. Walsh & Emanuel, 24 ib. 293; Portis v. Carroll, 4 Porter, 332; Swift v. Hill, 1 ib. 277; Webster v. Yancey, Minor, 183; Adams v. Robinson, ib. 285; Caller v. Brittain, ib. 27; Jameson v. Colburn, 1 Stew. & P. 253; Billinslea v. Abercrombie, 2 ib. 24; Whitaker v. Patton, 1 Porter, 9.</p> <p>2. .If it be said that James is not a party to tbe judgment, then the appeal bond is fatally défective, since it describes a judgment against Deslonde and James. — Williams v. The State, 26 Ala. 85.</p> <p>3. An amendment of' tbe appeal cannot be allowed, for there is no statute to authorize it. The sureties have a right to stand on the terms of their contract. Besides, the court must have jurisdiction before it can amend: it cannot give itself jurisdiction by an amendment.</p> <p>1. The whole record shows that James was not a party to the proceedings in the court below, and that the insertion of his name in the judgment entry is a mere clerical misprision, which is amendable by the record. — Smith v. Redus, 9 Ala. 99; Hood & Stinnett v. Branch Bank, ib. 335; Drummond v. Wright, 1 ib. 205; Patterson v. Burnett, 6 ib. 844; Moody v. Keener, 9 Porter, 252; 24 Miss. 2. The sufficiency of the bond depends upon the question, whether it is a valid security for the costs. That it is a substantial compliance with the statute, see 'Williams v. McOonico, 27 Ala. 572; and that it is, at all events; ;valid as a common-law bond, see Whitsett v. Womack, 8 Ala. 466; Meredith v, Richardson, 10 ib. 828.</p>

Heard before the Hon. Wade Keyes. This bill was filed by Theophilus L. Baker against Ossian Gregory and Susan, his wife; and its material allegations, as contained in the original and amended bills,… Held: that the right to subject Mrs. Gregory’s separate estate to the payment of the debt, even admitting that Peck might have enforced it, did not pass to the complainant by the transfer of the note. He therefore dismissed the bill; and his decree is now assigned as error. 1.

Tried before the Hon. JOHN E. Moore. This action was brought by the appellant, as the administrator of James Gillespie,' deceased, to recover a negro woman, named Hester, and her children, whom the defendant claimed under a purchase from the widow of said Gillespie. , On the trial, as the bill of exceptions states, the plaintiff offered in evidence a written agreement, signed by the defendant’s attorneys, in these words: “ In this ease it is admitted, that plaintiff is the…

Heard before the Hon. A. J. Walkeb. This bill was filed by Mrs. Elizabeth Rawdon, the appellant, by her next friend, asking a divorce from her hnsband, Isaac Rawdon, on account of his alleged insanity at the time their marriage was contracted.

Heard before the Hon. A. J. Walker. This bill was filed by James H. Smith against Benjamin W. Walker and Mary E., his wife, alleging that, in December, 1852, said Mary E., then the wife of said Benjamin W. Walker, being possessed of a steam saw-mill as a part of her separate estate which she then owned and enjoyed, and being-desirous to hire slaves to work in and about said mill, entered into a contract with complainant for the hire of two slaves, for the year 1853, at a…

<p>[trial OS' RIGHT OP property is slave.]</p> <p>1. Insolvency of defendant in execution, when admissible evidence, and how proved. — On a trial of the right of property in a slave, where the claimant derives title under a conveyance from the defendant in execution, which is attacked on the ground of fraud, the plaintiff may show that, at the time of the execution of the conveyance, the defendant in execution was insolvent; and evidence of notes outstanding against Mm at that time, and of a judgment rendered on one of such notes, is admissible as tending- to prove the fact of insolvency.</p> <p>2. Error¿without injury in rendering judgmentfor costs against surety on claim bond. — The rendition of a joint judgment for costs against the claimant and his surety on the claim bond, even if erroneous, is no.t prejudicial to the claimant, and lor that reason is not available on error.</p>

Tried before the Hon. Thomas A. ’Waleer. The appellant was fined by the municipal authorities of the town of Livingston, for a violation of a town ordinance, arid took an appeal to the circuit court.

Heard before the Hon. J. W. LesesNE. ' This bill was filed by the appellees, as heirs:at-law of Samuel Acre, deceased, to redeem a certain… Held: in 19 Ala. 372, that the alienee of the widow cannot defend an ejectment by the heirs, and that her title is not the subject of alienation; but this decision seems to be a departure from the cases of Murphy v. Inge, and Shelton v. Carroll, (14 Ala. 289; 16 ib. 146,) as also from the spirit of the statute, which gives the widow the…

<p>[TROVER AQAINST CONSTABLE FOR TAKING HORSE EXEMPT FROM EXECUTION.]</p> <p>1. Instructions io jury properly confined to matters in issue.- — Where issue is joined on a defective replication, tlie defendant cannot, by a request for instructions to the jury, claim the benefit of the plaintiff's failure to prove a fact which, because not alleged in the replication, is outside of the issue.</p>

<p>Appeal from tbe Circuit Court of Shelby.</p> <p>Tried before tbe Hon. Andrew B. Moore.</p>

Tried before the Hon. John Gill Shorter. This suit was instituted by the appellee, by notice and motion for a summary judgment against John McKenzie, William C. Wright, and Benjamin Gibson, on a promissory note for $1,000, dated September 29,1846, payable five years after date to the Branch Bank at Montgomery, and payable and nogotiable at said Bank.

<p>Appeal from the Circuit Court of Chambers.</p> <p>Tried before the Hon. Bobert Dougherty.</p> <p>The record shows these facts : In December, 1853, John B. Tucker brought suit against Felix Gresham before a justice of the peace, and recovered a judgment on the 11th March, 1854, for $18, but the costs were imposed on him. The justice’s docket then states, that Gresham “ prayed an appeal, gave bond, the case was brought before a jury, and they made a mistrial” ; a special act of the legislature, approved December 31st, 1841, authorizing jury trials before'justices’ courts in that county. Gresham then appealed from the justice’s said judgment to the circuit court, where the plaintiff filed a statement, claiming $24 for tuition fe'es due him as a schoolteacher ; to which the defendant pleaded the. general issue. After two continuances, and a mistrial, the cause was submitted to a jury at the Fall term, 1855, and on their verdict judgment was rendered for the plaintiff; from which judgment the defendant now appeals to this court.</p> <p>contended that the circuit court had no jurisdiction of the .case, and should have repudiated it, because there was no judgment in said cause, in the justice’s court, a’t the time the appeal was taken, and there cannot be an appeal in a case where there is no judgment.</p> <p>cited Vaughn v. Bobinson, 22 Ala. -519 ; Wetumpka & Coosa Bailroad Co. v. Bingham, 5 ib. 657 ; Code, §§ 2368, 2401, 2405.</p>

<p>[BILL IN EQUITY FOR SPECIFIC PERFORMANCE OF PAROL CONTRACT OF SALE.]</p> <p>1. Variance between allegations and proof. — The rule which requires a correspondence between the allegations and proof, is especially strict in cases for the 'specific execution of parol contracts for the sale of land. Where the con-, tract al.eged was,’that the complainant should execute his note for one half of the purchase money of two lots bought by defendant, that the two lots should be equally divided between them by .an east and west line, and that each party should immediately enter into possession of his half; while the contract proved contained the additional stipulation, “ that whenever either of them wished to sell, the other should have the preference or refusal”; held, that the variance was fatal to relief.</p> <p>2. Amendment not allowable, on reversed of devree, when it makes new case. — In reversing a decree for the specific performance of. a parol contract, on account of a fatal variance between the pleadings and proof, although the evidence shows that the complainant has a good cause of action, the appellate.court will not remand the cause, in order that the bill may be amended, if the amendment required would make a new case ; but will dismiss the bill, without prejudice to the right to file another.</p> <p>3. Costs divided. — The chancellor’s decree in this case being reversed, and the bill dismissed, but without prejudice, on account of a variance between the allegations and proof, the costs were equally divided.</p>

Tried before the Hon. C. W. Rapier. Detinue, by Louisa Patton, against George M. Hamner, for a slave named Sarah.

<p>[TROVER BY TOES FOR CONVERSION OF HER SEPARATE CHATTELS.]</p> <p>1. Husband incompetent witness for wife. — The rule which renders husband and wife, unless in a few excepted cases, incompetent to testify for or against each other, has its foundation not only in the identity of their legal rights, hut in a wise public policy; and there is nothing in any of the statutes of this State, securing to married women their separate estates, which requires that an exception should bo made of cases in which the husband is called upon to testify to his acts in the capacity of trustee for his wife.</p> <p>2. Wife’s right to property purchased by husband with her separate funds. — If the husband purchases property with money belonging to his wife’s separate estate, other than the income or profits thereof, and takes the title in his own name, the law will compel him, at the instance of his wife, to convey the property to her; and therefore, if he voluntarily conveys it to her, though for the purpose of preventing his creditors from taking it in payment of his debts, his conveyance will be sustained.</p>

Heard before the Hon. Wade Keyes. This bill was filed by the appellants, in October, 1854, to enforce the payment of a debt, due to them by the late firm of Simmons, Stewart & Co., out of the estate of Austin A. Stewart, a deceased partner, and alleged that the said firm and its surviving partners were insolvent.

<p>[BILL IX EQUITY FOR RESCISSION OP CONTRACT ON GROUND OP FRAUD.]</p> <p>1. Statute of limitations, how applied in equity. — The statute of limitations applicable to actions at law is not binding on the chancery court, in cases of exclusively equitable cognizance ; but that court, besides refusing to interfere whore there has been gross laches, or a long or unreasonable acquiescence in the assertion of adverse claims, often adopts, in cases to which the statute of limitations does not strictly apply, a period within which its aid must be sought, similar to that prescribed in analogous cases at law.</p> <p>2. Laches fatal to relief. — A bill for the rescission of a contract of purchase, on the ground of the vendor’s false representations, was filed thirteen or fourteen years after the discovery of the fraud, and, although it alleged that the complainant abandoned the land on the discovery of the fraud, showed no act on his part which would have precluded him from enforcing the specific execution of the contract, ü a favorable fluctuation in the price of the land had made it his interest to do so ; and the laches was held fatal to the relief, on demurrer for want of equity.</p> <p>3. Legal defence to note no ground of equitable jurisdiction. — Whero a note, given for the purchase money of town lots, at a place which was the contemplated terminus of a railroad then in process of construction, was made payable “ when the first locomotive engine on the M. railroad should arrive” at the town, the fact that the-railroad company was sold out, and the road completed by another company subsequently incorporated, is available (if at all) as a defense at law, and therefore constitutes no ground for a resort to equity.</p>

<p>[action by married woman on promissory note, executed to her while SOLE, AND CLAIMED AS PART OP HER SEPARATE ESTATE.]</p> <p>1. Demurrer to evidence, object and effect of. — The object of a demurrer to evidence is not to substitute the judge for the jury as a trier of the facts, but to ascertain the law upon an admitted state of facts; and its eifect, when issue ip joined, is to admit every fact which the testimony establishes, or tends to establish: the court does not stand in the place of a jury, to render such a judgment as the jury ought to have rendered, but to render a judgment against the party demurring, if the jury could legally.have done so from the evidence.</p> <p>2. Gift of money, facts held, on demurrer, not sufficient to show. — In an action to recover money loaned, qilaintiff proved that her grand-father, with whom she was then living, loaned the money to defendant, and toot his note payable to her; that he stated, at the time, that the money was his, but that he intended it for plaintiff, at his death, if she remained with him until that time, and pleased him; that she afterwards married, and left her grand-father’s house; and that he subsequently went to defendant, gave him up the note, (which defendant then destroyed,) and took another note payable to himself: Held, on demurrer to this evidence, that it showed no right of recovery in plaintiff.</p> <p>3. Joinder in demurrer to evidence, when court may require. — Where the evidence introduced by the plaintiff does not tend to establish his right to recover, and the defendant introduces no evidence, but demurs to the plaintiff’s, the court is authorized (Code, § 2349) to require the plaintiff to join in the demurrer.</p>

Tried before the Hon. C This action was brought by Lorenzo D. Owens and Nancy,, his wife, against William H. Chambliss, as the administrator of William Ivey, deceased, to recover $900, the alleged price of a slave named Jinney, who was hired by plaintiffs to said Ivey, and sold by him while in his possession under the con* tract, on the 1st January, 1853 ; and the complaint also contained the common counts for money loaned, money had and received, and money paid and expended.

<p>[bill in equity by assignee OE PATENT-BIGHT, to enjoin action at law on NOTE GIVEN BOB PURCHASE MONEY, AND POE DISCOVERY IN AID OP DEPENSE.]</p> <p>1. When hill for discovery merely may he dismissed with costs -If a defendant in an action at law files a bill in equity for a discovery merely, in aid of his defense, without first making application to the plaintiff for an admission of the facts sought to he elicited, and the answer denies some of the facts alleged, the bill may be dismissed", with costs; and if the action at law is brought in the name of one person, for the use of another, it is not sufficient to allege an application to the nominal plaintiff, and his refusal, to admit the facts as to which the discovery is sought.</p> <p>2. Estoppel in pais against setting up defense to note. — If the maker of a promissory note induces a third person to trade for it, by assuring him that he has no set-off against it, and that he will pay it promptly, he cannot afterwards assert any ground of relief against the purchaser.</p> <p>3. Objection to competency oftoilness, when made.- — An objection to the competency of a witness, on the ground of interest, must be distinctly made at the first opportunity, or it will be hold to have been waived.</p>

<p>[CASE TO RECOVER DAMAGES EOR INJURIES TO HOGS.]</p> <p>X. Admissibility of defendant’s declarations.- — In an action on the case, to recover .damages for injuries done to plaintiff's hogs, by defendant’s children and servants, while driving them out of his field, the defendant’s declaration, “ that plaintiff’s hogs were in the habit of running in his field, and that they should not-do it any more”, is admissible evidence for plaintiff, because it tends, though remotely, to show that the hogs which were injured belonged to plaintiff.</p> <p>2. Evidence confined to matters in issue. — If the declaration alleges that the injuries complained of were done by defendant’s children and servants, plaintiff cannot bo allowed to prove injuries done bythe defendant himself in person; and defendant’s threats that he would kill the hogs are therefore inadmissible, because they tend to show that he did kill them.</p> <p>3. General objection to evidence, of which part is legal. — A general objection to evidence, of which á part is legal, may be overruled entirely. ■</p> <p>4. TVhat authorizes recovery by plaintiff. — To authorize a recovery by plaintiff, in such an action, it is not necessary to prove that the particular act complained of, if done by defendant’s children and servants in the performance of their duty and service, was commanded by the defendant; nor that the defendant’s dogs were vicious, and that he knew it; nor that the injury was done entirely by the defendant’s dogs.</p> <p>5. Unnecessary averment, if descriptive, must be proved. — If the declaration alleges that the injury was done with the defendant’s dogs, the averment, though unnecessary, cannot be disregarded, since it is descriptive of the cause of action.</p>

<p>Appeal from the Circuit Court of Blount.</p> <p>Tried before the Hon. George D. Shortridge.</p> <p>This action (Samuel Foust v. John Yielding) was .commenced before a justice of the peace, and was founded on an open account for $15 *75. The defendant claimed a set-off of $40, and the justice rendered a judgment in his favor for $20; from which judgment the plaintiff appealed to the circuit court. The bill of exceptions states the following facts :</p> <p>“ On the trial of this cause, the plaintiff proved his account for $15 *75, due January 1,1854, which was not controverted by the defendant. The defendant then proved, under the plea of set-off, by one John Anderton, that plaintiff, defendant and himself entered into a recognizance with one William Patterson, a negro claiming his freedom, for the appearance of said Patterson to abide his trial; that a short time after they had entered into the recognizance, and on the same day, while the three were standing together with said boy, Patterson wanted to know to whom he would first go, — that he was willing to give his labor to his sureties until he obtained his freedom; that Yielding wanted to have the boy a portion of the time, but was willing any way; that witness preferred Foust to keep him; that they went to Foust’s store, and were 'separated for two hours; that Yielding said, he wanted to have a better understanding with Foust, on what terms he was to keep the boy, and witness told him to wait until Foust had leisure; that after this they had another conversation with plaintiff, at the counter, (the boy not ‘being present,) when witness said, that he would prefer, under the circumstances, that plaintiff should keep the boy, as he would be better able to rescue him, if he should be taken' or forced away; that witness asked, if plaintiff was willing to take the boy, and to pay each of the other sureties in proportion to the boy’s work and labor, and, if they could not agree, they would leave it to men; that plaintiff replied, that was fair, and he was willing. Witness further stated, that the boy had requested him, previous to entering into said recognizance, to go his security, and said that he would labor until witness was satisfied; that he did not communicate this promise to either plaintiff or defendant, but prevailed on them to go security with him, in order to secure a trial for the boy. Defendant then proved the value of the boy’s services for one year, and that plaintiff had had him twelve months.”</p> <p>The plaintiff then offered evidence tending to reduce the amount of tbe set-off claimed by the defendant, by showing that he (plaintiff) had paid out divers sums of money, and incurred considerable expense, in the prosecution of said Patterson’s suit for freedom; but this evidence was excluded by the court, and the plaintiff excepted.</p> <p>“ This being all the evidence, the court charged the jury, that the defendant was entitled to recover of the plaintiff one third of the value of the services of said boy for one year, after deducting the amount of plaintiff's account; to which charge the plaintiff excepted.”</p> <p>The charge of the court, and the rulings on the evidence, are now assigned as error.</p>

Tried before the Hon. ANDREW B. Moore. This action was brought by Michael Cook against Hilary T. Cook, “ to recover $60, with interest from the 1st January, 1852, for that much money had and received by defendant, to and for the use of the plaintiff.” The defendant pleaded, 1st, non assumpsit; 2d,'payment; 3d, set-off; 4th, accord and satisfaction; and, 5th, fraud.

Tried before the Hon. John Gill Shorter. This action was brought by S. Oullom & Co. against Peter B. Mastín, to recover the amount of certain fees which had been illegally exacted by the defendant, as sheriff ■ of Montgomery county.

<p>Appeal from the Circuit Court of Autauga,</p> <p>Tried before the Hon. Geo. D. Shortridge.</p> <p>This action ivas founded on a promissory note, of which the following is a copy :</p> <p>“ On or before the first day of January next, I promise to pay James A. Lawler, sheriff and administrator of R. H. Gaston, deceased, sixty dollars for rent of land of said deceased. March 23,1854.” (signed) “ A. B. Norris.”</p> <p>The bill of exceptions states that the plaintiff read this note in evidence, and then proceeds thus : “ It was also in evidence, that plaintiff, as the administrator of said R. H. Gaston, deceased, had publicly advertised the lands of said deceased for rent, and had failed to rent them for want of bidders; that he rented them, in a short time afterwards, to the defendant, who gave the note in evidence therefor; that defendant did not take possession of the lands; that no one else was in actual possession, and he was not prevented frpm taking possession; that the lands lay adjoining defendant’s lands; that no notice was given to the plaintiff that defendant did not take possession of the lands, until a month after the date of the note; that the lands were not rented to any other person during that year; and that it was too late, after plaintiff received notice that defendant did not take possession, to rent out said lands for that year, to make the usual crop. This was all' the evidence in the cause. The court charged the jury, that if they believed the evidence in the cause, they must find a verdict for the defendant; to which charge the plaintiff excepted”, and which he now assigns as error.</p> <p>contended that the defendant was estopped from setting-up the defense that the renting of the land was unauthorized, and cited the following-cases : Lampkin v. Reese, 7 Ala. 17B; Alderson v. Harris, 12 ib. 586; McCravev v. Remson, 19 ib. 430; McRae v. Russell, 12 Ired. L. 225.</p> <p>argued that the note was void, because the administrator had no authority to rent the land privately. — Leavens v. Butler, 3 Porter, 380; White & Gayle v. Lester & White, 2 Stew. 331; Caines’ R. 147; Eambro v¿ Gantt, 12 Ala. 298.</p>

<p>[ASSÜitrSIT ON COMMON COUNTS FOR SERVICES RENDERED.]</p> <p>1. Relevancy of rebutting evidence. — In an action by an attorney, to recover for services rendered by him as defendant’s agent in going to Louisiana, plaintiff proved a conversation between himself and defendant, in which the latter requested him to accompany him to Louisiana as his agent, and he agreed to go; and that they both left th’e county in which they resided at the same time. Held, that defendant, 'to rebut this evidence, and to show that they in fact went to Texas, and not to Louisiana, might prove that plaintiff had land and slaves in Texas, and had stated that he had gone to Texas with defendant.</p> <p>2. Relevant evidence, though insufficient, admissible. — Evidence which is relevant to the issue, is admissible, without regard to its weight or sufficiency.</p>

Tried before tbe Non. Andrew B. Moobe. This action was brought by Mrs. Rebecca J. Dorman, as tbe executrix of ber deceased husband, Daniel A. Dorman, against William B. Richardson; was founded on an open account for medical services rendered by . the deceased as a physician, during the months of July and August, 1853; and was commenced on the 2d March’, 1854. The pleas were, non assumpsit, payment, and set-off.

<p>Appeal from the Court of Probate of Pickens.</p>

Tried before the Hon. JoHN G-ill Shorter. Trover by Jaque Houseman against James J. Stewart, to recover damages for the conversion of a stock of goods; plea, not guilty, with leave to give in evidence any special matter in bar of the action.

Tried before the Hon. Thomas A. Waleeb. This action was brought by the appellant, and was founded on two promissory notes. The defendant pleaded the statute of limitations of sis years, to which the plaintiff replied a subsequent promise; and the defendant rejoined, that said subsequent promise, if any was made, was made on Sunday, and was therefore void.

<p>[MOTION TO DISMISS APPEAL.]</p> <p>1. Appeal bond insufficient, which misdescribes judgment. — If the appeal bond misde- ■ scribes the judgment, as where the judgment is against the appellant and another, and the bond describes a judgment against the appellant only,, the appeal will be dismissed on motion.</p>

<p>[MOTION TO DISMISS APPEAL.]</p> <p>1. Transcript not filed in time. — The appeal in this case was dismissed, on motion, ■because the transcript was not filed until the third term after the appeal was talren.</p>

<p>Appeal from Court of Probate of Lowndes.</p>

<p>Appeal from the Court of Probate of Cherokee.</p>

Tried before the Hon. John Gill Shorter. INDICTMENT against William Ogletree, for an assault on Stephen H. Tiller, with intent to murder Mm. The bill of exceptions'states the following facts: “The State introduced one J. S. Mitchell as a witness, who testified, that an altercation commenced between himself and Ogletree, before the drug-store; that Ogletree, with a stick in.

Tried before the Hon. C. W. Rapier. This action was brought by Andrew Lambert against Robert Barlow and Uriah Barlow,-and was founded on the defendants’ promissory note for $175, dated January 1, 1853, and payable twelve months after date. The pleas were, a tender before suit brought, and the general issue, with leave to give any special matter in evidence as á bar to the suit..

Tried before the Hon. ANDREW, B. Moore. The appellants were plaintiffs in execution against Sturde-vant & Jones, and levied on certain negroes, as tbe property of said Jones, to which a claim was interposed by the appellee under a mortgage from said Jones.