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Full text of "Report of cases argued and determined in the Supreme court of Alabama"

UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 



SCHOOL OF LAW 
LIBRARY 

Faculty Library 



DENNIS & CO.. INC. 

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251 MAIN STREET 

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KEPORTS 



^ « or 



f X/d' 



CASES ARGUEli AND DETERMINED 



12) THS 



SUPREME COTJET OE ALABAMA, 



*1' 



DCBINO 



'^ .JANUARY TERM, 1855. 



BY J. W. SHEPHERD, 

STATE REPORTER. 

VOL. XXVI. 



COWAN & MARTIN, PRINTERS. 
1855. 

9i . 







»«• 









:^ 



# 



OFFICERS OF THE SUPREME COURT, 

DURING THE TIME OF THESE DECISIONS. 



Hojj. WM. p. CHILTON, Chief Justice. 

Ko^. OEORGB GOLDTHWAITE, { ^^.^.i^te Justice^ 
Hon. SAMUEL F. RICE * | Associate Justices. 



M. A. BALDWIN, Attorney General. 
JOHN D. PHELAN, Clerk. • 

' <»_ 

^ * Eleetod by the legislature to fill the vacancy caused by the resigriiation of the Hon.' Darid 

,' G. Ligon. which took effect on the 1st January, 1865. 



I V 






i'm*- 



•y '*•' 



ft .-■ 



-. 4.^.., 



TABLE OF CASES. 



Adams and Wife v. Adams, 272 

Allen V. Harper, 686 
An(Jer8, guacdiau, &c., ats. Klrby's 

Adai'r, ' 466 

Anderson ats. Cdfecb, G76 

Antonez v. Tbe State, 81 

Appleton ats. Moore. 633 

Barnes ats. Mobley. W8 

Bates ats. Eckles & Brown, 655 

Bennett v. Fail 5: I*atters(Tn. (505 

Blevins v. Buck. * 292 

Bondurant ats. Nelson, * 341 

Boyles ats. Johnson, .j76 

Bradford ats. Lundic, " 512 
Bradford ats. McLaren. Ragan & Co., 616 

Bradford ata. Stewart. 410 

Briefer et aL (slaves) v. Tlie State, 107 

Brock V. Tlie State, 104 

Brown & Eckles v. Bates. 655 

Brown «fc Eckles v. Carter. 563 

Bryan v. The State, 65 

Buck ats. Blevins, 292 

Byrd v. McDaniel, 582 

Carrierev. Ticlmor, .')71 

Carter ats. Eckles & Brown, 563 

Carver v. Hallett, executor, &c., 722 

Ckse V. The State, 17 

Chamberlain v. Gaillard, 504 

Clmraberlain & Co. v. Masterson, 371 

Chambers V. The State, 59 
City Council of Montgomery ats. 

Gilmer & Taylor, 666 

Clark ats. Haley, 439 

Cockrelland Wife V. Gurley, 405 
Commissioners' Court of Dallas Co. 

ats. Keenah, 568 

Cotton ats. Dawson, 591 

Couch Y, Anderson, 676 



Covey ats. Jones, 


464 


Cowles ats. Jones, 


612 


Crow ats. Hudson, 


515 


Crow ats. Patton, 


426 


Darringtoa& Savage v. Walshe & 




PJmaouel, 


619 


Dawson v. Cotton, 


691 


Dearing v. Moore, 


686 


De Jarnette ats. Tyu.-^. 


280 


Denson v. Mitchell and WHe, 


360 


Doe ex dem. Rochon's Heirs ats 




Kennedy's Executor. 


384 


Downs ats. Gill, 


670 


Duke's Adm'r v. Duke's Distrib's, 


673 


Durami^v. Harrison & AVfiitman, 
Eastma,ffv. Hobljs. " 


826 


741 


Eckles & Brown v. Bates. 


655 


Eckles & Brown v . Cai-ter, ^ 


563 


Elam.v. The State, 


48 


Elliott v. The State, 


78 


Elliott & Stanley v. The State, 


26 


Ellswortli V. Tartt, ,, 


733 


Emanuel & Walshe ats. Savage & 




Darrington, 


619 


Ewing v. Peck, 


413 


Ex parte GarlingtAi, 


170 


Ex parte Gist, 


156 


Ex parte Rowland, 


133 


Ex parte Vincent, I** 


145 


Fail & Patterson ats. Benncrtt, 


'605 


Farmer's Distributees v. Farmer's 




Adm'r, 


071 


Farmer (Ownei-s of Steamboat) v. 




McCraw, 


189 


Fcnner v. Kirkman, . - ^. 


650 


Flournoy's Heirs ats. Miller and 




Wife, 


724 


Floyd V. Morrow, 


353 



TABLE OF CASES. 



Gaillard ats. Chamberlain, 


504 


Garliagton, Ka- parte. 


170: 


Gill V. Downs.. 


670 J 


Gilmer & Taylor v. City Council of 


j 


Montgomery, 


mb 


Gist. Ex parte. 


156 


Garley ats. CockroU and Wife, 


405 


Halej V. Clark. 


439 


Hall V. HOlcombe. 


720 


Hallutt, executor, &c ,M,s. Carvor 


722 


Hamilton v. Williams, 


627 


Hamlet v. Johnson, 


557 


Hardy v. Hardy's Heir.s, 


524 


Harkness v. Sears & Walktr. 


493 


Harper ats. Allen, 


680 


Harrall r. The State. 


52 


Harris v. Hillman, 


380 


Harrison & Whitman ats. Duramus 


,326 


Hillman ats. Harris, ^ 


380 


Hobbs ats. Eastman, 


741 


Hoffman v. HofTman. ' 


635 


Holcombe ats. Hall, 


720 


Howard's Distributees v. Howard's 




AdmT, 


682 


Hubbard and Wife ats. Jordan's 




Adm'r, 


433 


Hudson V. Crow, 


515 


Huguenin ats. Letondal. 


552 


Ikelheimer ats. Ozley, 


.332 


Jenkins v. McConico, '" 


213 


Johnson ats. Hamlet, 


557 


.Johnsoit ats. Manning, 


446 


Johnson v. Boyles, 


576 


Jolley V. Walker's Adm'rs. 


690 


'*iones V. Covey, 


464 


Jones V* Cowles, 


61^ 


Jones V. The State, 


156 


Jones' Adm'r ats. Miller, 


247 


Jordan's Adm'r v. Hubbard & Wife 


,433 


Keeaan v. Commissioners' Court ol 




Dallas Co., 


568 


. Kennedy's Ex'r v. Rochon's Heii-s 


,384 


Kirby's A4m'r v. Anders, guard- 




ian, &c., 


466 


Kirkman ats. B'enner, 


650 


Kitksey ats. Montgomery's Ex'rs, 


172 


Landman v. Snodgrass, 


693 


Langdon ats. Rolston, 


660 


Letondil v. Hugueuiu, 


552 


Lightfoot ats. Stiles & Co".', 


443 


Locke's Executor v. Palmer, 


312 



Loftiu ats. Shearer, 703 
Lmidie v. Bradford, •512 

Manning w Jolinson, 446 

Martha (a slave) v: The State, 72 

iiartin's Hcirsi v. Tenison, 738 

Masterson v. Chayiberlain & Co., 371 
Mayor, &c., of Mobile v. Rowland 

&Co.i 498 

McAllister v. McDow, 453 

McCauley v. The State, - 135 

McConico ats. Jenkins. 213 
McCraw ats. Owners of Steamboat 

Farmer, * 189 

McDaniol ats. Byrd. 582 

McDow at-5. McAllister, \ 453 

McGar y. Williams, 469 

McGehee ats. Nesbitt. '748 

McGehee v. The St|^e, 154 

McGuire ats. Moore, 461 
McLaren, €lagan & Co. v. Bradford, 616 

McTyer v. Steele. 487 

Miller v. Jones' Adm'r, '247 
Miller and Wife v. t^louruoy's Heirs, 724 

Minell & Co. v. Reed, "30 

Mitchell and AVife ats. Densgu. 360 

Mobley v. Barnes. 718 

Moiitgomery's Ex'rs v. Kirksey, 172 

Moore ats. Dearing, 586 

Mopru V. Appleton, 633 

Moore v. McGuire, * 461 

Moore v. The State, 88 

Morrison ats Taylor, 728 

Morrow ats. Floyd. 353 

Morrow ats. Turney's Adm'r. 389 

Nelson v. Bondurant. 341 

Nesbitt V. McGehee, 748 

Newman ats. Stalliugs, 300 

Noles V. The State, ' 81 

Owen V. Slatter, 547 

Owners of Steamboat Farmer v. * 

McCraW, ^ 189 

Ozley V. Ikelheimer, 332 

Palmer ats. Locke's Executor. 312 

Patterson & Fail ats. Bennett, 606 

Patton V. Crow, . 426 

PauUing v. Watson, 205 

Pearson ats. Smith, 603 

Peck ats. Ewing, , 418 

Pickens v. Yarborougli's Adm'r, 417 

Prater v. Stinson and Wife, 456 

Reed ats. Minell & Co^ . 780 



TABLE OF CASES. 



Rochou's Heirs ats. Kennedy's Ex'r, 384 

Rodgors V. The State, 76 

Rolston V. Langdon, 660 

Rowland, Ex parte, 133 
Rowland & Co. ats. Mayor, &c., of 

Mobile, 498 
Savage & Darrington v. Walshe & 

Emanuel, 619 

Seal's & Walker ats. flarkness, 493 

Shearer v. Loftin, 703 

Slatter ats. Owen, 547 

Smith V. Pearson, 603 

Snodgrass ats. Landman, 593 

Spivey v. The State, 90 

Stallings v. Newman, 300 

Stanley & Elliott v. The State, 26 

State ats. Antoncz, 81 

State ats. BristA- ct al. (slaves), 107 

State ats. Brock, 104 

State. ats. Bryan, 65 

State ats. Case, 17 

State ats. ChamUers. 59 

State ats. Elam, ■ 48 

State ats, Elliott, 78 

State ats. HarraU. 52 

State ats. Jones, 155 

State ats. Martha, 72 

State ats. McCauley. . i 135 

State ats. McGehee, 154 

Stat« ats. MDore. 88 

State ats. Noles, 31 

State ats. Rodgers, 76 

State at,*-. Spivey, 90 

State ats, Stanley & Elliott, 261 



State ats. Stewart, 44 

State ats. Tims, 166 

State ats. Williams, 86 

State ats. Windham, 69 

Steamboat Farmer V. McCraw, 189 

Steele ats. McTyer, 487 

Steele ats. AVyatt's Adm'r, 639 

Stewart v, Bradford, 410 

Stewart v. The State, 44 

Stiles & Co, V, Lightfoot, . 443 

Stinson and Wife ats. Prater, 456 

Tartt ats. Ellsworth, 733 

Taylor v. Morrison, 728 

Taylor & Gilmer v. City Council of 

Montgomery, 665 

Tenison ats. Martin's Heirs, 738 

Ticknor ats. Can'iere, 571 

Tims V. The State, 165 

Turney's Adm'r v. Morrow. 339 

TyuR V. De Jarnette, 280 

Vincent, Ex parte. 146 
Walker v. Walker's Distributees, 262 

Walker's Adm'rs ats. JoUey, 690 

Walker & Sears ats. Harkness, 493 

Walshe & Emanuel ats. Savage & 

Darrington, 619 

Watson ats. Paulling, . 206 
Whitman & Harrison ats. Duramus, 326 

Williams ats. Hamilton, 527 

Williams ats. McGar, 469 

Williams v. The State, 86 

Windham v. yhe State, 69 

Wyatt's Adm'r v. Steele, 689 
Yarborough's Adm'r ats. Pickens, 4'17 



ERRATA. 

la Stewart v. Bradford, p. 412, second line, for " same proof" read ''^some 
proof" ; and in the sixth linfr on the same page, for ^'from-* read "form.'' 

In McTyer V. Steele, p. 487, last line of the first head-note, iafter " oivnP 
insert " nome." 

There are, doubtless, several other typographical errors, which the reader 
can readily correct, as they do not, so far as noticed, change one word into 
another. • 

Note, also, that in the cases of Denson v. Mit<^ell an4 Wife", p. 369, apd 
McLaren, Ragan & Co.- v. Bradford, ip. 61G, Mr. Justice Rice did not sit, having 
been of counsel for the appellants, in each case, before his election to the 
beach. ^ 



' t' 



TRIBUTE OF RESPECT TO THE MEMORY OF 
HON. DAVID G. LIGON, DECEASED. 



At a meeting of the Members of the Bar of the Su^reiiie 
Court, held at the capitol on .Friday^ the 10th February, 
1855, James E. Belgcr, Esq., was called to the chair, and 
John D. Fhelan, Esq., ajDpoipted secretary ; and on motion of 
Wm. M. Murphy, Esq., the chairman was requested to pre- 
pare, and report to an adjourned meeting. Resolutions express- 
ive of the sentiments of the Bar in reference to the death of 
the Honorable David G. Ligon, late one of the Associate 
Justices of the Supreme Court, 'deceased. 

At an at^urned meeting, held on the next day, the sub- 
joined Resolutions were reported, and unanimously adopted ; 
apd ^fr. I^efser was ftistructed to present tljAn to thx? Court, 
and to request tl^at they.be entered on ils irikiutes. 

In presenting the Resolutions to the Of>urt, dti Monday 
morning, 19th February, Mr. Belsersai^ 

" May it please the Court— In the observance of a time-hon- 
ored custom, I have been deputed by my brethren of the Bar 
to present this, the last token of inspect, which they, as a 
body, can render to the memory of the Hon. Davib G. Ligon, 
deceased. 

" While perfoi-ming the melancholy service assigned me, it 
is not my purpose to pronounce a studied eulogiurti on the life 
and character of the deceased. Indiscriminate panegyric is 
no honor to the dead, and no benefit to the living ; b«rt to 
listen to the solemn admonition of our transitory existence, 
is useful and conlmendable, and may instruci us in the Value 
of life — its purposes, its duties, and its destination. 

"A short time ago. Judge Ligon was with us, in all the 
vigor of health, actively engaged in closing his judicial busi- 
ness, and in making "preparations to return to the pursuits of 



ii. TRIBUTE OF RESPECT TO THE 



the law. Vain calculation ! That intention was doomed to 
disappointment, and those who esteemed and loved him will 
isbe him no more. My infprmation is, that he died in Moulton, 
Lawrence county, where he resided, shortly after one of his 
pulpit ministrations — at his po§t. as a Christian minister, 
proclaiming to his fellow-men the Scriptures of Truth, and 
honoring the pure morality they teach. -^. . 

" I respectfully move the Court, that tfiese l^esolutfons may 
be entered on its minutes : 

" 1. Resolved, That the members of this Bar, and the officers 
of this Court, deeply regret the sudden death of the Honor- 
able 'David G. LiobN. ' 

" 2. Resolved, That we cherish, withra warm and jitst remem- 
brance, the purity of his professional life, und those amiable 
Social qualities which so well adorned his personal character, 

■'3. Resolved, That, to tt'stlfy these sentiments. \ve will wear 
the usual badge of mourning. 

"4. Resolved, Tiiat the chairman communicate these pW- 
ceedings to the Supreme Court. 

"5. Resolved, That tkeseci-etary make them known ta the 
family of the deceased." '^ 

" To which the Cliief-Justice responded as follows : 

" Gentlemen bf the Bar^-The membei% of this Court unite 
with you in the "tribute of respect and regai'd which you have 
been pleaded to pay to the memory 'of onr late worthy associ- 
ate, the Honorable David G. Ligon, a»d we fully concur 
with you in the estimate you place upon his many virtues. 

" We have known him long and intimately, and for the last 
three years he has labored by our side as a member of this 
Court. His varied attainments, quick perception, and love 
of justice, united with his excellent social qualities, and 
extended benevolence, made him a valued Judge, and a highly 
useftfl and honored member of the coiriniunity. 

" Little ^id we suppose, when he took his leave of us at the 
comviencement of the present session, that he was bidding us 
a final adieu, and that we should be called thus early to mourn 
his less. Buoyant with hope, and apparently in good health, 
ho left us for his loved " mountain home," with the confident ' 
expectation, as he assured us, of often revisitiftg this sce»e of 
his labors, and engaging in the discharge of profeseional duty. 
But Death h9.s suddenly put an end to his earthly hopes, and 



taMORY OF HON. DAVID G. LIGON. iii. 



they now lie buried with him in the grave. Let this visita- 
tion teach us, that here we have no permanent abiding place; 
that, ere long, each one of us, in his turn, must yield obedi- 
ence to the solemn mandate. ' Dust thou art, and unto dust 
shalt thou return.' Thus admonished, does it not behoove us 
to be also ready ? 

" As a memorial of our common grief, we order the Reso- 
lutions wiiich yoi> have presented to be entered ou the record 
of this Court." 



it 



ADDENDA ''^ 

TO THE CASE OF CHAMBERLAIN vs. GAILLARD, p. 504. 



Note by Reporter. — Mr. Manning, who was of counsel 
for the appellee in the case of Chamberlain v. Gaillard, has 
recently furnished a brief of his argument, which is here in- 
serted at his request. 

A. R. Manning, for the appellee : 

1. The first special plea was no aus\^er to the action, and 
the demurrer to it wa.s, therefore, properly sCistained. 

2. The plea on which the trial was had (itself bad, though 
the demurrer to it was overruled) was not sustained by the 
evidence! One of its averments is, that the title to the slave 
Adam was a material question in the action of assumpsit by 
the appellant against Gaillard. This was not proved by the 
witness McKinstry, if it were proper to have proved it by 
him ; nor was it proved by the record* of that suit. That 
action was against Gaillard, a^ bailee of C4iamberl£Cin, for 
the use and hire of the slave a long time previous ; in which 
action title is not inquired into, and accordingly is not alleged* 
in the precedents. — 2 Chitty's PI. 61 ; 2 Saunders on Plead- 
ing asd Evidence, p. 566 ; Lewis v. Wmis, 1 Wils. 314 ; 
Richard v. Holditch, ib. The averment of Chamberlain's 
ownership of the slave, in that action, was therefore immate- 
rial, and not being descriptive, it was not necessary to prove 
it — it was mere surplusage. — Gould's PI. (3d cd.) 164 ; United 
States V. Burnham, 1 Mason's R. 57 ; 31 M-ainc R. 184 ; Winn 
V. White. 2 W. Bla, 840. |ndeed, the adversary claiais of 
Chauiberlain and Gaillard to the slave are not only not proved 
to have been decided in that-action, but they could not have 
been decided under the declaration. — Crow#. Boyd's Adra'r, ' 
17 Ala. 51 ; Jones v. Hoar. 5 Pick. 285. 



ADDENDA. 



3. On the admissibility of parol evidence to sustain a plea 
of former recovery, there are some loose decisions, and more 
loose dicta. Who were the persons that, under certain names, 
have been parties to a suit, and what was the property, or. 
other subject-matter about which the .suit was brought, may 
be proved by other evidence than that of the record ; for they 
cannot be filed away, with the papers of the cause, in the 
office of tlie clerk, to be afterwards inspected ; and, besides, 
the mere identity of these, in general, can be easily established. 
But for a court to inquire or be informed what questions in 
respect to that subject-matter it or another court decided, not 
by the record of the proceedings and the nature of the action, 
but by the testimony of persons of difiTerent degrees of intel- 
ligencej integrity and memory, who might have been present 
when the cause was decided, and to call things thus proved 
(and so dependent on the lives and memorj'- of witnesses) res 
judicatce, would hardly satisfy the ideas whidi- those words 
suggest even to common understandi-ngs. In the case of 
Davidson v. Shipman, 6 Ala. 27,, (as this court admitted;) it 
was abundantly proved by the presiding judge, and others 
who were present at the trial of another suit between tiie 
same }>arties, that the validity of a certain* mortgage under 
consideration had been hotly contested between them, charged 
on by the coui't, and referred to the jury as tlie main question 
for their determination : " still," said this court, after looking 
into the record of that suit, " it was not necessary to decide 
it, 9iid therefore. ?io» comtat that the^ (the jury) did decide it.*' 



^, 



B'.^'H .' 



'*: 



4 



REPOETS 



OF 



CASES ARGUED AND DETERMINED %f 



' AT JANUARY TERM, 1855. 



\ 



CASE w. THE STATE. 

1. Under an indictment for larceny from a atore-hx)use, (Code,,§§ 3170, 3175,) 
if the jury assess the aggregate (instead of the separate) value of the stolen 
articles, the irregularity is not available to the defendant, either on motion 
in -arrest of judgment, or on error. 

2, If the defendant was a mere servant of his exnployer, having charge of the 
store-house and goods without any authority to sell, he may be convicted 
under section 3170 of the Code ; but if he was the agent of his employer, 
and had authority as such agent t« furnish goods to customers, he can only 
be indicted atrd convicted under section 3143. If, however, he obtained his 
agency with the felonious intent of stealing the goods, he may be convicted 
under section 8170. 

From the City Court of Mobile, on points reserved as 
novel and difficult. Hon. Alex. McKinstry, presiding. 

The indictment in this case, which was found at the Octo- 
ber term, 1854, of the City Court, charges, "that John Case 
feloniously took and carried away from a store-house" certain 
enumerated articles, whose value is specified, and which are 
alleged to be the "personal property of William S. Crockett." 
Having been found guilty by the verdict of the jury, the de- 
fendant moved to set aside thp verdict, arid also in arrest of 
judgnnent, on the ground that the jury had failed to assess 
the value of each article separately, but had assessed their 
aggregate vatue at $18. This motion thd court refused, but 
2 



IS ALABAMA. V; 

-. « , -1 ■■ . ■»., ^ ■ 

t Case V. The State^ 

reserved the.question presented as novel and difficult under 
the Code, and certified it to tire Supreme Court for decision. 

The bill of exceptions also discloses the following facts: 
■ ^ " The State introduced one Crock?ett as a witness, who tes- 
tified, that, seeing, an advertisefeient in the ne^^spapers by the 
•prisoner offering to sell out his store, he called upon him 
about the last of June or first of July, 1854, to make inquiry 
respecting it ; that he had never seeurthe pi^soner before to 
know him ; that he called again on the prisoner on the third 
of July, when tlie prisoner agreed to take, and Crockett to 
give, $800 for the goods in' the store, in a lump as they were — 
$400 QashJ^ and the balance to be secured fey two notes, of 
$200 each, with security, payalJle the 'first of November and 
tjie first of September ensuipg ; that the parties then imme- 
diately proceeded to tak-e an inventory of the goods, in order 
^' that Crockett might learn the selling prices ; that this labor 
Was concluded on the itorniflg t)f the 4th of July, when 
Crockett paid, and Case accepted, the |400 in cash ; that while 
tfee negotiations for the purchase of the goocfes were pend- 
ing, on the. morning of the tliird of July, before closing the 
bargain, the prisoner, at the request of Crockett, sent for the 
owner of the h#u^e lii which the goods were, viz., Mrs. Julia 
Soto, from whom Case had rented it, in o^'der that Crockett 
might Tent the Said hotise, which ccyisisted, besides the room 
'devo'ted to the store, of apartttients above, «sed as a dwelling- 
house and then ocrapicd by tlie prisoner's fauii-ly, — it bping 
the understanding of the parties, that tljie prisoner's family 
were to move out,' apd ' Cjt*ockett*fe to move in ; that Mrs. 
Soto did hot .come, ,but Imv son came, and, in the presence, of 
* the prisoner, consented ^lat Case might rent the house, and 
Case tljen hjired th^ hous^ to- Crockett for the balance of the 
year, the rent to canimence from the first of , Jujy, 1854 ; that 
Crockett has ever since, ^pursuai^ to said contract^ paid ttie 
renf to Mrs. Soto ; that after the |400 in cash were paid, as 
a^ove stated. Crockett remaijiQd about one hour in the store 
^y himself, officiating behind the Qouiiter and supplying goods 
to customers; that the j3ri§ongt- t]^en came in. and asked 
,(^rockett -jto go down town with .him, .to hav» a bill of sale 
di*q,wn, and the notes executed, to wkiph Crockett ag^'^^d ; 
tkat .Crockettf proposed Cp shut up tfie-store d'uring., Jiig a*b- 



• JANFARY TERM, 1855.' l#^ 

iCase. t. The State. 

sence. when the prisoner suggested, for Crockett's benefit, 
that his (the prisoner's) wife had better tend the store for 

" that interval, lest customers might be diverted from the store 
by seeing it closed, to which proposal Crockett assented, and 
proceeded down town with the prisoner ; that the parties 

^were absent on their errand until late in the afternoon, with- 

. out effecting their purpose, owing to the prisoner's not suc- 
ceeding in getting such a bill of sale drafted as he would ex- 

■ press himself satisfied with, when finall)' Crockett returned 
to the store alone, and remained there some time, and sold 
some goods to customers ; th^t Crockett tiien, being about to 
go home, said something to the prisoner about ghufting up the 
store, when he again suggested that it would be better for 
himj( Crockett) to ^leave him (prisoner) in charge during the 
evening to Tieep it open, so that the store might not lose cus- 
tom; that Crockett assented, and went home, and on the 
next morning early {the fifth of July) he came to the store, 
and was admitted by the- prisoner, who unlocked the door 
from the inside ; that the ..key had n^v^r been delivered to 
him by the prisoner ; that\vhen he^ camean, lie s^w that some 
goods which wei*e there tlie day previons were missing, but 
he said nothing about it at that timej that, about 9 o'clook 
the prisoner requested him again to go ^own to wo. again to 
execute the notes, saying that he wanted the matter closed, 
but Crockett refused to go until «ome of his family, who were 
to move into fh^ dwelling pai^'of tbe-house that day, came ; 
that the prisoner expressed himself urgently to Crockett, when 
the latter offered to pay the cash then rather than go out, and 
finally, they went down town together, to the store* of Cham- 
berlain, whom Crockett had proposed as his endorser ; thats 
Chamberlain declined to endoree the notes, but stated to the 
prisoner, that he was acquainted with Crockett, and that the 
notes should be paid ,; that tlie prisoner expressed himself 
satisfied with this, and executed a bill of saJe of the goods, 
whicJi was left with Chamberlain and executed in the absence 
of Crockett, who went back to the store wJiere the goods 
W6re immediately after executing his notes, and before 1|^ 
bill of sale was executed by the prisoner. • ". y.' 

'• Chamberlain stated, on hig examination, that, he was un- 
der the impression that the understanding of the parties was, 



ALABAMA.: 1*?5<.^; 



Case V. The State. 



tliat the notes, with security, should tee given before the bill 
of sale was executed, but he could not say what was the un- 
derstanding of the pal"ties in regard to the possession of the 
goods in the meantime. Grpckett testified, that he considered 
Ms possession complete from the tiniQ he paid the $400 ; tiat 
the prisoner never came about the store after the fifth of July , 
but busied himself, as he had been pveviougly, in removing, to 
make room for Crockett's family, some of his furniture from 
the larger room of the dwelling part of the house,'to a smaller 
room, which it had been agreed the prisoner should retain to 
put his furniture in ui\til he had a chance to carry it away ; 
that the prisoner's family left the house on the 6th or 7th ; 
that up to the 5th of July; tlie keys of the house and the 
house -continued as usual in ihe possession of th© fwisoner. 

" There was other evidi^nce. On this evideHce, the pris- 
soner's counsel requested .the court -to charge the jury, that 
although they may believe that the contract waa» complete on 
the 4th of Jilty, and tlie title to the goods vested in thepros- 
ecutor, and the defendant stole tiie goods ; yet, if they -be- 
lieve that the control' of the house and store -was left with 
the prisoner until the 5th of July, theft, in the interim be- 
tween the 4th and 5th, if the defendant took the goods from 
the store-house, of wliich he had th^ key; possession, and con- 
trol, then ho is. not guilty of stealinig from a store-house, 
within the meaning of section 3170 of the Code. This 
charge the court refused, and charged the jucy, among other 
- msktters, that if they believed from the evidence that the de- 
fendant was guilty of the larceny of the goods, as charged 
in the indictment, they must ascertain whethep they were ^a- 
r km from «. store-house or not-^^'if .bXxt *ak6n froni a store- 
• house, the offence could not be rnore than a simple larceny ; 
but if they found that the house was a store-house, they must 
then ascertain whether the laweny Vas- committed before or 
after the store-house was delivered to Croekett by Case — if 
they found that the larceny was committed before the hiring 
and delivery of the store-house to Crockett, the defendajit 
would be guilty of simple larceny only ; if, however, they 
fQund that the lardeny was committed after the" store-house 
had been rented and delivered to Crockett, -then the defend- 
ant would be guilty of the statutory offence of larecsny from 
a store-house. 

/ 



- „ ; JA NUARY TERM, 1855. . 21 

C^e V. T&e State. 

" The presiding judge^ being of opinion that the questions 
arising on the refusal to charge as requested and the charges 
giteu are novel and difficult, and should be reserved for the 
opinien of <3ie Supreme Court, has directed the execution of 
the sentence to be delayed until the 10th day of March, A. 
D. 1855, and, at the request of the prisoner, here refers the 
questions thecein for the consideration of said Supreme 
Court." . ■■ . . ■ ■ ■ . / 

The refusal to set aside the verdict -and arrest the judg^ 
ment, the charge given, gnd the refusal to charge as requested, 
are now assigned for error. • 

E. S. DlAlKJAN, for the prisoner : , 

[Mr. Dargan argued orally at the bar the point presented 
by the motion -to set aside the verdict because the jury had 
assessed the aggregate value of the stolen articles, but he sub- 
mitted no brief of his argument on that point. He also sub- 
mitted a written argument, in which he made the following 
points. — Rep.] 

. Under tii^ Code, it is made the dtity of this court, to ex- 
amine all the errors in the record, even though they are not 
specially assigned ; and the motion in arrest of judgment 
tests the sufficiency of the indictment. Is it not defective, in 
that it does not allege who was the owner of the house from 
which the goods were stolen? Such is certainly the law in 
England.— Barb. Crim. Law, 187 ; 3 Ohitty's Crim. Law,, 
949. The Code does not in language require that the owner 
of the goods should be alleged, yet it is necessary that their 
ownership should be averred ; so, also, it does not in words 
require an allegation of the ownership of the house, yet it is 
necessary. 

Section 3143 of the Code punishes all , clerks and agents 
who fraudulently convert to their own use the goods of their 
masters which have come to their possession in consequence 
^f their employment.* It is the employment, and not the 
compensation, that determines the question of the relation 
existing between the clerk, or agent, and the owner of the 
,g6ods. That the want of compensation for the agency does 
not affect the relation, is fully established by the following 
cases : R^x v. Smith, 1 English Crown Cases, p. 516 ; Bar- 






fe*' 'itLABAMA. 



Case V. The State. 



• it 



ker's case, Dow. & Ry. 19, referred to fuUy by Mr. Roscoe in 

the last edition of his work on Criminal- Evidence, (top) pp. 

440, 441 ; 6 Car. & P. 626. Neither can the length of time 

' the relation has existed vary the case. The sole question ie, ^ 

Did the relation exist at the time of the; eonversion ? If it ' 

did, the party must be liable. The true distinction between 

• an agency and a bare charge is this : one has powers, the 

, ofjier not ; and these'^o*'ers cannot be lo^de to depend' upon 

' tlie compensation the agent is to receive for executing them, 

^'n6r,io the length, of time Such powers have existed. Is ther6 

■*iaji/"''evidence he'be, a^ disclosed by the' bill of exceptions, 

•• which tends to pfov^ that Case was entiAisted with the power 

of an agent ? It is shown that he and bis family occupied 

the rootn above the store, — ^that the key was left with* him, 

"■ and the store open and in his charge, to prevent the loss of 

custom. This being the object ind reason of the power coii- 

fided to him to keep open the store, that power, to be effectual, 

■ TDttust enable him to carry out that object ; for it is a corredt 

• r,ule, that a general grant of a power, unless there- are ex- 
• press restrictions that iJefeat the ex^cise -of the'^wer, must 

. • JW^.SD construed as. to catry out "the object of the grant. If 
thfe object here of leaving the st6l-i§ open in charge of Oase, 
and the key in his possession, was to prevent the loss of cus- 
'tom, how cdlil4 this be done without supplying' such customers 

* as might call with goods ? The evidence,'then, at least tends 
, to .show that the defendant was authorized, if it became neces- 
.sary to prevent the loss- of custom, to sell gootls ; and if so, 

he was a clerk'or ag^nt under section 3143, and cannot be 
convicted under section 3170. The charge, therefore, as it 
withdrcT^ from ther jury the consideration of the question of 
•■ agency vel non, and assumed that the defendant might be con- 
vieted iodcpeadently of that question, — was erroneous. 

M. A. iBALDWlS^^Attorney General, cwi^ra ; 

1. The offence was either larceny, oV embezzlement. Could 

, the defendant be convicted for embezzlement under section 

, 3143 of the Code ? Our statute is very nearly the same as 

the 7th and 8th Geo. IV. ch. 29, § 47, cited in Roscoe's Crim-* 

inal Law, p. 437 : -and it has been held under that statute, 

that no casual procuring a person to receive a sum of money 



JANUARY T^Itti; 1855. 23 '-.' 

, 4 - - , ^ ^ ■ . r- -■ . ■ jT, — ■• — ' ' ■■ ■ . f * > ■ « -f 

^— ' ■■. ' • V n-^— - ■ ', 7-T-- '-T ■■ 

will render him *- a person OQipl(!>Yed for the' purpose, or in the - 
capacity, of a olerk."-^Ca9e* of Nettleton, Freeman and 
Bm'ton, reported in Roscoe's Criminal Law, pp. 437 to 444 ; ' ' 
all of which were held jiot to bo cases of embezzlement, ^n 
the case at bar, the prisoner's attention to the prosecutQr's " ^ 
store was a mere casiial one ? he- was not employed as clerk, 
or agent, and*therefore'rt cannot be embezzlement. -^'* 

2. Is it a case of larceny? It naay be said that the ^- 
session was lawful, a«id that no subsequent conversion of the ' 
" property could make it larceny, unless the animus furandi ex- 
isted at the time the prisoner came into possession ; and that 
this is the law, is not intend6d to be denied. It is a clear 
maxim of the law^ (2 East's P. C.^6,4,, 682,) that when one 
has the bare charge or custody of the goods of another, the 
legal possession remains in the owner-; and the party may, in 
fraudulently converting the game to his own use,- be guilty .of 
trespass and larceny. Thus, a butler, who. cohimits larceny of 
his master's plate ;. a^ shepherd, of the sheep ; a servant, of 
the gpods entrusted ^to Ms possession.^ — The People v. Call, 1 
Denio 120; .United ^tates v. Olew, 4 Wash. C. C. 700; State 
V. Self, 1 Bay 241 ; Commonweaith y. Brown, 4 Mass. 580 ; 
State V. Gorman, 2 N&tt & McC. 90; Gpmmonwealth v. 
James, 1 Pick. 375 ; Roscoe,60'0.; l'^ale>*:?. C.^Sl^'^; . ' 
LeaGh266. , . ' /'' '^ ; ' .''*;.■ 

.'l^r If it be larceny-, is,tt larcen^ from a store-hou^e «nder 
section 3l70 ef the Code? The case of Ctiambers v. The ■ 
Btate; 6 Ala. 856, is not applicable to this ; that case was un- 
der -a statute which required an entry into flie house ; and the 
prisoner being a lodger, the .court held that an indictment 
w,ould not lie where the entry-was permissive. — Clay's Dig., 
"p. 425, § 55. But our statute against larceny from a store- 
house, &G., is veiy similar to the English statute of 12th 
A^nne, st. 1, ch. 7, (cited in 2 East's P. C. 629,) and does not 
require an entry ; and, like that, it was made l+o guard against ^" 
servants and clerks, as well as strangers. - Jj • - •.*«L^ ' ^ 

4. Stealing from a dwelling-house by the owner ofnife . 
dwelling, has been held lar<;eny ujader the statute 7th and 8th 
Geo.'lV. ch.'29, § 1 2.-^1- Rttss." on Crimes,^p.,853.j ,1 Car> & ,. 
^!ir. 147. It mav be doubted whether the authorities gener- . . 
ally go to that exteot. but tfeey oertainly-^uaclude (Ul other per- 



f4 '._ yU ALABAMA. 

Case V. The State, 



sons than the owners themselres.-^Roscoe, p. 597-; 1 Russ. , 
417 ; 1 Moody's C. C. B9. In this case, the prisoner was not 
the owner, but merely the occupier o^f the up-stairs portion of 
the house. ..-•.• • ' • > 

5. It is not nec^sary that the value of the goods should 
be assessed at all, much less each article separately : it has 
nothing to do with the .prisoner's guilt. — 13 Ala. 157. 

CHILTON, C. J. — The prisoner was iudicted and convicj- 
ted of larceny from a store-house. Several articles, consist- 
ing of shoes, thread, cloth, &c^are alleged to have been felo*- 
/niously stolen by him. The ^ry found the aggregate value 
' of the goods to be eighteen dollars ; but did not assess the 
separate value of any article. The prisoner moved to arrest 
the judgment for this reason, but the court overruled his mo- 
tion, and certified the point to^this cpurt. 

"We think the decision of tfie court upon this pdiht was cor- 
rect. There is no essential difference between the provision 
contained in thfe Code, and the statute coiitained in Clay's 
Digest, and which we construed 'in Jomjs v. The State, IB 
Ala. 153. In that case, no value was found ; her6, the ag- 
gregate value. As' the Object of the statute was, to enable 
■the court to render judgment against the prisoner in favor of 
the party to whom the goods belonged, and as no judgmelit 
can be rerfdered Unless the verdict ^nds flue separate value of 
each article, the two cases stand upon the same ground. In 
neither could a judgmpnf for the price of the goods be ren-. 
dered agaiftst the, prisoner. . But tb allow Jdn'iio take advan- 
tage of this, when the omission' has not even IHe most. remote 
bearing ^^pon his guilt or innocence, and when he is put in a 
better condition bv tlie omission,' would bo to disregard the 
numerous decisions t)f this court wlijch hold, tliat a party can- 
not reverse a judgment vvlfich' could not possibly have woi'ked 
• any injury to him. ' ' " " ** 

• 2. As respdcts th'& ruling of the prirnary court -in ib€ m- ^ 
structions given to the jiTry": WcfUiink' there -^as so^ie evi- 
dence tending to prove that the prisoner was the agent of 
Crockett to whom he. had sold the goodl. Whether thie ev?- 
dence was sufficient to establish this faci, was a question 
which the jury should have pa^.sed'upon, and" which is virtu- 
ally excluded from tlieif consideration bv 'tlie charge. 



. JANUARY TERM, 1855. , 25 

Case ▼. The State. 

If tiie prisoner was* a mere servant of Crockett, having the 
charge of thfe goods without anthority to dispose of them for 
Crockett and as his* agent, then he is properly convicted un- 
der this indictment ; but if he was Crockett's agent, with 
power not only to keep the store open that custOniers mfght 
not be lost to the, establishment, but to furnish goods to such 
customers in behalf of his prinoipal, Grockett,Hhen he falls 
within the influence of section 3143 of tie Code, and must 
be tried under; that section. • . ■ • .. 

The line of distinction between a servant* alid an agent, 
who comes under the character of bailee, as respects the of- 
fenoe of larceny, is not vei-y (Nearly drawn by the books; yet 
they-.all agre^,, that very important resuks depend upon it. If 
a servant steal the goods of his mastftr, left in his charge, he ■ 
was by thevcommon lawgoiiity of larceny. Jf, however, an 
{igent-'Vho is s& bailee emljezzle-them, not breaking the bulk, 
he was considered as guilty of a breach of tru^t merely. 

With-out entering at large upon the discussion of the dis- 
tinction in -this place, it may be sufficient, to say, that if the 
goods were left in eharge of tli£ .prisoner merely to keep with 
the store-house or room, and without. any superadded duty re- 
specting them, (as^for exttmplcan authointy to sell and dispose 
of them,) he must be regarded in the light of a servant: but if, 
in the contemplation of thfe parties, the prisoner had authority 
to proceed and sell flie goods to customers, on t)ehalf of the 
prosecutor, Cxockett, under a contract, express or implied, to 
account for the proceeds, we„arc unable to perceive upon what 
principle he could be distingiiished from *ageats or factors, 
P^ro hac vice, changed with the sale of merchandise as in ordi- 
nary ca'Sets. It drSes not requirq' Wat tFior(5 should be a spe- 
cial contract, fixing upon compensation,' or limiting the period 
for the terminfttien oi' the agencji, - iW a must have regard to 
the natufeand«haracter of thesei'viceoi'^ctstobe done; we 
must determine whetiter the prisoner was vSnbsti|uted, in the 
matter of tfie custody and §a]e of th^ goodfe, io the place of 
the principal,, invested with d,isGi-etioJt jn the trans'action of 
the business as his^^igeut, or bailee, and., ^incling the principal 
by bis Acts done within the scope ot his employment; or 
whether, as a mere servant, h§ was to act as he was acted 
up,0ii,9T diiiected by, the master-r-in other words, whether he 



Stanley & Elliott v. The State. 



had more than tbe bare charge of the house and goods to 
keep them for the master, 'and to abide his bidding in refer- 
ence to them. — 3 Auchb. Ck. PL, {i)j Waterman.) pp. 443. 
et seq. /, '*•-.!' "'*^" '■' • '?X>.. 

The court lost sight of this distinction in its charge, and the 
effect of the charge is, to exchide from the jury the consider- 
ation of the evidence tending to prove an agency, and in this 
view, such instruction was erroneous. — Dill, guardian, &c., v. 
Camp, 22 Ala. 249 ; Edgar v. McArn, ib. IM ; Holmea v. 
The State, 23 ib. n. 

If the prisoner <was an agent, as contemplated by section 
3143 of the Code, he must be Convicted, if at all, under that 
section. He is then guilty of petit or grand larceny accord- 
kig.'as'the jiiry may ascertain ^e value of the articles stolen. 
On the other hand, if he be a mere servant, and not an agent 
within the meaning of the section above referred to, he may 
be found guilty under section 3170; fop stealing from a store- 
house. He, is also guilty under this last section, if at the time 
he obtained his agency he did so with the felonious intent.:©! 
stealing the goods. — 2 Waterman's Archb., p. 384, note ••'^^ 
f '-Judgment reversed, apd cause remanded. :-*^ 

•■'■,'■• ■%■- — T^ 



■ . %■ • , . - ■ »' • .. .^ 

«> . % . • . ■••" ' . *2«*3. 

■'^ . • STANLEY & ELLIOTT vs. THE .STAmy/if v. 

. i,-: Whether a persou is " a maa of known intemperate kftbits," is a question or 

'Tact to which a witness may depose. 

^ , 3S" Under an incTictment for retailing without a license, (Code, § 1059.) evi- 

• '* *dence that the intemperate habits of the person to whom the liquor was sold 

' ' 'i'f^'GPC generally known in the community, is irrelevant and inadmissible : the 

' ' ; 3 ^t that his intemperate habits were generally known in the community, 

does not justify the inference that they were known to the dtrfendant. 

I Appeal from' the Circuit Court of Limestone. #^*,€^ 

Tried before the Hon. John E. MooRE^' ^ *"' 

' . • , ' ,*••'■ 

^^HE indictment in ihis «Case, whfch was 'found at the Sep- 
', tember teYm, 1853, of the Circuit Court, is as follova.* •***'' 

* • 



JANUARY TERM, 1855. ^ 

Stanley & Elliott v. The State. 

5".*f The graad jurofs of said State upon their oaths present, 
that Henry Stanley and William B. Elliott, late of said 
county, on the 20th day of July, A. D. 1853, in the county 
aforesaid, did sell spirituous or vinous liquors to one John G. 
Russell and others, without first having obtained a license 
from the Probate Court of said county for that purpose, con- 
frary to law, and against the peace and dignity of the State 
of Alabama.'^ • ♦ ' 

On the triSil thfe State injtpoduced said. John Gr. Russ^pll as 
a witness, who "testified, " that, within twelve months prior to 
the finding of the indicfmenfe, he frequently bought whiskey 
from the defendants, in quantities- not less than .a quart, which 
he took home to drink ; that ke never bought whiskey fropa 
them in quantities less than a quart;- and had never bought 
any to drink on the defendants' premises. The State then 
introduced one Japies M. Lane, who testified, that he had 
been for a long time acquainted with said Russ6ll, and that 
he (Russell) was a man of known intemperate habits. To this 
le8timon5' the defendants objected, on the ground that the 
witness must state the actual habits of said Russell, and leave 
it to the jury to determine whether or not they amounted to 
intemperate habits ; but the court overruled the objection,^ 
and admitted the testimony, and the defendants excepted." 
Several witnesses for the State testified, "that said Russell 
was generally known in the community to .be a man of intem- 
perate habits" ; to which testimony, in each <;ase, the defend- 
ants ol^iected, and also excepted to the ruling of the court in 
admitting it. 

The defendants asked the cou^t tq charge iheflfcy, "tjiat 
they should not find defendants guilty, unless they find that 
said Russell was a man of known intemperate habits, and that 
his habits were known to them when the whiskey was sold to 
him ; which charge the court gave, but charged the jury also, 
that if they found from the evidence that said RusseU, at the 
tinie he purchased the whiskey from the defendants, was a 
man of known infemperate habits in the community from the 
use of liqiu)r, then they might from this evidence infer a 
knowledge on the part of defendants ; and to this charge the 
defendants excepted. The court charged the jury, also, that 
they must disregard the testimony of Lane and the other wit- 



•ALABAMA. 



Stanley' & Elliott t. The State. 



tiesses founded upon mere o{>imon, and *couM onlyr find the 

defendants guilty upon* facts ;*tfeat Tuale^S' the evidence ^Ss 

that Russell was a man of knoKvn 'intempferarteliabits from -an 

intemperate u§e of spirituous liquors.- they must find for the 

defbndants." ' . o . -^ 

* 

The rulings of the court in the admission of the evidencis 
objected to, and in the charge given, afe now assigned for 
■erpor, together with otlter nrntter^ not necessary tfjfian' utider- 
standing of the points Ii^-e decided. /* * 

■ '■ ■•' '••■•■■ ^ ■ ' ' ^ 

^•^■^^OBiNSQN & Jois'ES, f«9T <the« appellants,, fcott^nded^-^. '■*» 

i. That it was not permissible to estahlrshthe habits of the 
person to whom ttie liquor wai6 sold by the kind of ' eyidence 
adduced in this case ; 13iat the testimony, of -th^^-vfitnesses, as 
tO*ilus3fell being " a man of known intemperate habits," was 
t)ut the statement of a legal eoriclusion ; that they shotlldhavd 
stated the facts which go to make 4ip Ijhat character, and left 
the t;ourt atKl jury to d^'aw the legal conclusions to be deduced 
ft*«m those facts.-^Parker v. Haggerty, i Ala. 632 ; Blevins 

. V. Pope, 7 ib. 3T4 ; 'Bank at Moiftgomerv v. Parker, o ib, 736 ; 
McOurryv; Hoopei', 12 ib. 827. ^•^•v>.'v/ ><•>'»>;; #;- :r •<?* r; r^ 

, 2. That the afdrpission of this illegal cfvld^Ce was iidt cta!^ 

by the withdrawal of it from, tha jury in the ''charge of the 

. cvHrt.— M«Curfy v. Hobper, 12'Ala. 828;' * ^;^^> 

.3. The cdnr't should have gh^en tlia chafge* asked witlioiit 

qualification, bfccauae the proof fails entirely to show th^t the 

defbndaiitg wefe feo sittiated that tliey rnpst have , known 

Russell's common reputation for intemperate habits- : unless 

this was^own in gome way, either by near^ residence, inti- 

tnate -association, or ii> some other' legal^ mode, "the couFt 

canno,t' presume ' that tbe (jlefen d ai>ts knew it. ' • *' 

■'. . _ ' :. ■., _'.. . r ^ '. ■ ■ ■ ^ 

M.^ BALDWIN, Attemey (Gfenm'fil, ?i)w«ro^ cifei the easft 

"of Elam v. T^d State, 25l)h Ala. 53j 

M^riOOLD'^HWAITE" (r.-^The^rg^qHestfoh presented upon 

the record'iall^ as to tfee ttctibn 'of thfe cdurt in- refusing to 

exclude from" the jar3J the ^aiement of one of t!ie witnesses, 

• that Russeli, the party to whom l^e licfiior- was s6ld,wasa 

. ^^s«ft' of known rnteniperttie 4ia%its. .It,i9«tni6; that the 



JANUxVRY TERM, 1855. 29 

Stanley & Elliott v. T6e State. 

general rule' forbids the opinions or legal conclusions of wit- 
nesses from ijeing given in evidence ; but the question as to 
intemperate habits is purely one of fact, and it can make no 
difference in principle, that being the case, that the matter in 
relation to which the. witness is required to speak is made up 
of mor^e than one fact. That it is a- conclusion, is true ; but 
it is no more bo than that a man. is embarrassed with debt, 
which we have held to be competent evidence. — Massey v. 
Walker, 10 Ala. 268. There are legal conclusions which the 
law alone is authorized to draw^but this is not one of them; 
It follows, that as the evidence to the fact to which we have 
referred was proper, and the objection general, the court did 
ik)t err ia overruling it. '>^ 

We regard, however,. the refusal of the court to exclude th^ 
evidence that the intemperate habits of Russell were generally 
kaowninthe community, a"5 erroneous. The question was 
simply whether these habits wete kftown to the defendants 
(Elam v. The St^te, 25 Ala. 53), and unless the evide;ice tend- 
ed to bring tame this knowledge to them, it was prima fade 
irrelevant. We are aware that the proposition that the gen- 
eral knowledge of a fact m a neighborhood, raises an inference 
is to the knowledge of eacli individual in the same neighbor- 
hood, has, on more than one occasion, received the sanction of 
this court ;"but on ai carefftl examinatii>n of the question, we 
ar,e. satisfied that the rule as laid down caanoit be sustained. 
We agree, that whete a fact is* of such a nature, or is sur- 
rounded by such circumstances, as to impress itself upon a 
neighborhood, or particular community, it will then create a 
•presumption, more ot less strong, as to tlie knowledge of each 
individual composing the community. This is nothing more 
than the assertion of tlie common principle, that whatever 
affects the whole Siffects the parts; and the inference then 
feats upon the positive eharticter of the fact itself, vor the 
attending circumstanceB. But because a fact is generally 
hoown, it dees not follow that it is universally known ; on 
the (Contrary, as that which is withift the knowledge of the 
gi-eater portion of the communtty, may be properly said to be 
genei-ally 'knoi^n, the proposition is unseund and illogical, 
a*s it makes thatVhich afffects a part only, extend to the whole. 
-It }ias_ b§en urged, that the whole theory of circumstantial 



i^ ; »; ALABxiMA. 



Stanley & Elliott v. The State. 



evidence is.founded on the doctrine of piK)babilitieg, and this 
may be conceded, without admitting the rule as broadly as con- 
tended for. It is not enough, however, that there should be 
a mere prqbability. A presumption is " an inference as to a 
fact not actually known, arising from its necessary or usual 
connection with others which are known." — 1 Stark. Ev. 24. 
Here, the know.n fact is the knowledge by the community 
generally ; the inference is, the knowledge of the community 
universally .; or, ip other words, the pa'oposition may be stated 
thus : It is usual for the wbofe community to know, whatever 
the greater part of the community knows. We have care- 
fully examined the English cases, and can find none which 
sustains the proposition — nothing in ,the text writers ; — and 
the entire absence of authority in relation to a rule of such 
general application, is convincing against its existence. 

In this court the doctrine was first advanced in Ward^v^f' 
Herndon, 5 Port. 382, in which the aiction wag for a deceit, 
in representing one Simpson to be solvent, atid worthy of 
credit, under the influence of which representations the plain- 
tiff sold him goods to a large amount. On the trial,- the 
representations as to the solvency and credit of Simpson were 
established, and it >was also proved that he was generally 
reputed to b^ inselyent ili the neighborhood in which both the 
defendant and himself resided. This* last evidence was ob- 
jected to, and pu, error held to be admissible to bring home 
k^nojrledge of the repu^tion.to the defendants, on4he ground 
" that no man is presumed to be so much of a recluse as not 
to kn^ow whsit is generally known and talked of in his neigl> 
liorhood." While with deference, we dis^nt from.tiie reason- 
ing, we agree that the decision' was correct, on the ground 
tliat, tlie defendants oecupied a relation to the party whom 
,th^y reoompiended, which should have put tkem on inquiry as 
to his credit ; and his general reputation where the law pre- 
sumed he was best known, was a fact affecti,ng his credit. — 
Lawson v.^Orear, 7 Alji. 784. In The Bank v.' Parker, 5 Ala. 
731, the game doctrine w^is again asserted, and Ormond, J., 
dissented ; but .it will be found on an examination of that 
case, that what wa$ .there said upon the question we are now 
discussing was a dictum merely, as the point did, not arise 
upon the record. The subsequent decisions rest entirely upon 



JANUARY TERM, 1855. 31 

... NoJe8.r. The State. 

iilt'j ti TT -« — '• ■> >• 

the cases we have referred to, treating the question as de- 
termined 1)}: them, without any examination into their cor- 
rectness, or any new a;r^gumcnt in tlieir support. It is a 
matter of no small importance, that a rule whicli goes to the 
admissibility of evidence in so large a class.of cases should be 
con-ectly settled ; and sa.tisfied that it cannot he sustai:fied as 
broadly as it has been laid down,,we are bound to repudiate 
it. We would not, however, be undergtood as holding that 
the kjiowledge of a fact by one party; will not, in any case, 
warrant the inference tliat it was communicated by him to 
another : we go no further than to deny the general proposi- 
tion, that the knowledge of an individual as to any and every 
fact may be inferred li'om the mere cirx^u^nstance that it is 
generally known in his neighborhood. ^ , ■ 

The views w« have expre^ed apply tp the charge of the 
'ctturtj'and as it fs probable the othef qjiesfciefis presented on 
the re"eord may not arise on another trial, we deem it unne- 
cessary to decide thQm. 
ji^udgment reversed, and cause remanded. 



4 



NOLES vs. THE STATE. 



Ik^To cjsciise » homicide j "there must exis) on llie part of the slayev an actual 
necessity to kill iu order to prevent the commission of a fePouy or great 
'.bodily harm, or a reasonable belief in his" miud that such necessity exists. 

Tt While every, citizen has the right to resist dny attempt to put an illegal 

, 'restraint upon his liberty, his resistance must not be in enormous dispropor- 
tion to the injury threatened. He has no right to kill, to prevent a mere 
trespass which is unaoconipaniad by any imminent ^danger of great bodily 
Jiarm or felony, and jrhichdoeS not produce in his mind a reasonable belief 

^' of such danger. - 

3. The charges of the court in this ease, and its refusal to give the charges 
asked by the prisoner, tested by these priiKyplas, and held correct. 

i. Any fact which tends to prove the real illptive of the prisoner in killing 

' the deceased, or the purpose of the deceased in going to the prisoner's house, 
or that the prisoner knew, at the time of the killing, that the deceased and 
his companions did not intend to commit any felony, nor to do him any great 
bodjly hai'm, is relevant evidence. 



>:*^f ^ALABAMA.;:?>/i4; 



Noles V. The Stale, 



6.A,-A verdict,- fittdingilie pr^oaer *' guilty of murder ia-the first degree, and 
,d{pnite.ntiary for life," is sufficient to support a jiidgment of conviction and 
■ *1Sfccfcene'e 'of confinement ifl the penitentiaiy foi- life. 

>".S ^k -■•■''■.■,»* •*? 

*!^i/RROR'«frofti* tiie Circuit Court of Dallas. " **"- 

•* Tried bdforre tM Son. N>r. Cook. 

'''JTosBpH NoLife %afe indict&d, ^t tHe ^ring terili, 1853, for 
the Aurder of one Cleorge T. Sharp '," was tried, and' con- 
vifcted, and sentericecl tO* be hung, but "the jiidgment was 
reversed at thfe June term, 1854, of 'the Supreme Court, and 
thfe eause remariderd.-^See 24 Ala. 6'T2.'' A second trial was 
had at the Fall te'rm, 1854, which re^fit^ iii another convic- 
tion, from which this writ of error is "prosecuted. 

The bill of excepti«ofis ^elfe Ijtit t,ll th'e evidence, which, 
with "such alterations as are ndfcesSdry \o mak'e k intelligible 
in print, is as follows : ' ' ' ' ' ■ 

"James H. Burns, who iC^s' the first witness "swoiM, ^iS, 
he was an acting justice of the peace''in the be'at where tlie 
prisoner lived, at and before" the time, and when the murder 
. was charged to have been committed. Here an affida^t, 
' made before BurAs by the wife of the prisoner, and a warrant 
issued by Burns, were offered by the State, and objected to 
by the prisoner ; wMch objection was sustained by the court, 
and both the affidavit and warrant excluded from the jury. 
The State then offered to provfe the fact that the prisoner's 
wife had made aifafifid&vit'Jiigainst him, and that this fact was 
communicated to the prisoner ; which was objected to by the 
prisoner, -but his' objection was overrule'd, and he excepted. 
Burns then testified, that Mrs. Noles^ had made an affidavit 
bjsfore him ; that he read the affidavit to the prisoner, who 
demanded an investigation ; that he told thO prisoner he had 
no constable or officer to arrest him, and that he would not 
try him unless he Vas regularly ariesteS, but, if he would sur- 
render himself to some one, he (Biirns) would appoint such 
person •constable and investigate it ; that Noles replied, he 
would see about it; atid then left ; thart this was on the morn- 
'' ing of the day Su^rp was l^illed. The'prisoner again objected 
to this evidence, and moved .to exclude it ; but the court over- 
ruled the objection; ai^ the'prisoner excepte'd. Burns also 
testified, that both Sharp and Noles verfe itt the village of 



JANUARY TERM, 1855. 33 

Noles V. The State. 

Burnsville on that day ; that Sharp at first refused, but, after 
being pressed, agreed to go and arrest Noles ; that he author- 
ized him to go by appointing him special constable, there 
being none in the beat ; that he gave him the paper he had 
issued, and Sharp said that he would go. The prisoner ob- 
jected to so much' of what this witness said, saying that he 
gaye Sharp authority to go, and that he gave Sharp the paper 
he had issued ; but the court overruled the objection, and the 
prisoner excepted. Burns said, this was after Noles had 
talked with him, and that Noles .was not present ; that Sharp 
went off towards Noles's house ; that this was in the morning 
of the day on which Sharp was killed ; that Sharp consented 
at the solicitation of others. He said, a young man named 
Cole, then a clerk in his store in Burnsville, had a double- 
barreled gun in the store, which the young men sometimes 
hunted with, and which was kept loaded at night ; that this 
young man (Cole) was now dead ; that he (Burns) did not 
see the party when they started to go to Noles's house, nor did 
he examine the gun after the killing of Sharp, nor did he know 
that this was the gun Sharp had at the time he was killed. 
" Lewis Kirkland testified, that he was in Burnsville on the 
■day Sharp was killed ; that Noles, in the morning of that day, 
was in Burnsville, and had a quarrel or difficulty with a man 
by the name of Perry, in the house of Mrs. Kelly ; that Mrs. 
K»elly requested Sharp to take Noles out of her house ; that 
Sharp went into the house, and talked with Noles, and they 
came out in a friendly manner ; that Noles then went off to- 
wards home ; that shortly after this Sharp summoned witness, 
with six or seven other persons, to go ^nd arrest Noles, who 
lived some short distance from Burnsville ; that when Sharp 
and his company got within forty or fifty yards of Noles's*. 
house, Noles came out into the yard, with his gun in his hand, 
and ordered Sharp and his party to stand off ; that he said, if 
- we abused him, he would shoot some of us ; he said to them, 
' they were a drunken, rowdy set, and if they would go away 
and send some old men, he would go with them, or, if they 
would send a ten-year-old bx)y, he would go with him.' This 
witness said, he had not been drinking, hut that Perry had, 
but was not drunk, and nom were, and was the man JYoles had 
quarreled with that morning in Burnsvilk{?) thajt neither Sharp, 
3 



34 ■< ALABAMA. 

Noles V. The State. 



nor his company, had any gun or other arms that he saw or 
knew of; that when Noles ordered them to stop, they did so ; 
that Sharp told Noles not to shoot, that they would not rush 
upon him, but that he would return in the evening and arrest 
him ;"that Noles replied, he would be at home ; that Sharp and 
his party then left ; that they were all peaceable and iquiet 
men, and none of them drunk. He further testified that Sharp 
and his company returned to Burrisville, and Sharp then got 
a double-barreled gun, but (witness ?) did not know where he 
got it from ; that Sharp summoned Wm. B. Hall and a man 
named Coxe (these men were older than the others were) to 
return to Noles's house, for the purpose of arresting Noles ; 
that the gun was given to Avitness, which he carried until 
they got in sight of Noles's' house, when he gave it to Sharpy 
that the company rode on, Hall and Coxe in front some thirty 
or forty yards ahead of Sharp ; that witness was behind Sharp, 
some ten or fifteen yards off, on his left ; that Noles came out 
into the yard:' that he then had his gun in his hand, and 
ordered the company to stop, raising his gun, to his face, and 
saying, if they advanced, "he would slioot some of thera*; that 
he only heard one command to stop ; that they all stopped, 
and Sharp, who was then sixty or seventy yards off, stopped-, 
and dismounted quickly on the left side of his horse, holding 
the gun in an elevated position in his left ha'hd «bout the 
middle of the gun, and the bridle in his right hand ; that 
Sharp's horse pulled baclv ; that -he saw the gun of Noles 
waive,»as if directed from Hall and Coxe, who wei'e on the 
left of Sharp, so as to bear on Sharp ; that he kept his eye on 
Sharp, expecting him to shoot, as he had the warrant and 
gun f that as soon Sharp was On the ground, and' fairly erect, 
' Noles's g\in fired ; that Sharp did not present his gun to 
shoot, as he saw ; that he cchfld have shot very quick, if Noles 
had not shot him- first — that he only had to bring his right 
hand to the gun, and he would be ready to shoot ; • that he 
'teard but one report ; that he did not examine Sharp's guu^ 
noi- did he kftow whether it was loaded, .although he carried 
it a part of the way ; that Sharp lived about ten minutes after 
he was shot ; that Noles lied. . ' ' 

" " Wm. li.-H'all went to Burnsville on the da,y Sharp was 
killed, and beliweeti ^ and 4 o'clock of that day Sharp sum- 



JANTTARY TERM, 1855. 35 

Noles V, The State. 

moned him to go and aid in arresting Noles ; that he went, 
and several other persons also went ; that Sharp had a double- 
barreled gnn with him ; that witness and a man by the name 
of Coxe were riding together, in advance of Sharp and. the 
balance of the company some twenty or thirty yards ; that 
when he first saw Noles, he had his gun in his hand, and or- 
dered the company to stop ; he said he would not be intruded 
on, and if they did not stop he would shoot ; that Sharp and 
the company behind stopped, but witness and Coxe did not, 
but advanced, and witness saw from ' the cut of Noles's eye ' 
he was about to shoot, and attempted to throw himself from 
his horse in such a way as to avoid being shot ; that he called 
out, ' He is about to shoot,' or ' We are about to catch it ' ; 
that Sharp wa§ behind him some distance, and at this time he 
did not see him, but he saw Noles move his gun quickly, and 
the gun fired, and Sharp was killed ; that Noles fled, and he 
pursued him some distance, but did not overtake him ; that he 
heard but one report ; that the company went^ up to Noles's 
house in a peaceable and quiet manner — did not attemgt any 
pei'sonal violence on Noles; does not remember saying, ' Shoot, 
he is going to shoot us ' ; he had no arms with him. 

" C. B. Coxe testified, that be was summoned by Sharp, in 
the afternoon of the day on which Sharp was killed, to go and 
aid in arresting Noles ; Sharp had, a guu, and witness had a 
pistol in bis pocket, but- did not draw it ; witness and Wjn. B. 
Hall went together, and in advance of Sharp and the rest of 
the company, spme tWrty or -forty yards ; when they had got 
within some twenty or thirty yands of the house, he sawNoles 
as if he came around dne corner of the house ; that he did not 
then have his gun in his hand, and he forbid the approach of 
the persons any further, saying that he would not be iniruded 
upon ; Sharp, and the party behind witness and Hall, stopped; 
Hall said to witness, ' Let u3,go on.' ;.they -did so, when Noles 
stepped to the corner t)f the house he had come 3,rou»d; and 
took' up his gun, .^ud ordering them again to stop, and saying, 
if they did not he would shoot them ; the- gun was then pre- 
sented, whei^ Hall immediately njade an effort to get from his 
horse, and cried out, ' Shoot him, he's going to. shoot us ' ; at 
this moment Noles passed his gun from witness and Hall to- 
wards Sharp, and very quick the gun fir^d ;^ yitness said he 



m ' - ^^> ALABAMA. 



Noles V. The Stale. 



distinguished two reports, but he thought one at the time, and 
still thinks that the report was from the echo at the house ; 
after the shooting he found Sharp's gun on the ground, near 
where he was shot, the right hammer down, and the cap was 
either burst or off ; he did not examine otherwise whether the 
.gun was loaded. 

" F. Garson was present in the morning when tjie company 
first went to arrest Noles ; he forbid their approach, and said, 
that they were a drunken set, and he would not be intruded 
on ; when ordered to stop, they did so, forty or fifty yards off; 
Sharp said, he would not arrest him then, but would return in 
the evening and do so ; Noles said, ' You will find me here ' ; 
' the party ha"d no gun, or other arms, — they w"fere peaceable 
and quiet, — wef e not drunk ; they all went bacj: to Burnsville, 
and Sharp got a gun, and summoned ' some more men, (Hall 
and Coxe,) and when they ca^e in sight of the house witness 
, and aever£fl others were behind Sharp ten or fifteen yards, 
and were off to his rig*ht ; Hall and Coxe were some distance 
before ; the first witness saw, Noles was m the yard, with his 
gun, and ordered thB party to stop, and said", if thtey rushed 
on him he would shoot some o5 them ; his gun was pointed at 
Hall and Coxe ; Sharp, who was then on his horse, got down 

• quick, and Noles th'en waived his gun from Hall and Coxe to 
Sharp ; this was not until Sharp had got down, or had started 
to get down from his Iiorse, and the gun did not fire*until 
Sharp was fairly on his feet ; \dtness did not hear any one 
say, ' Shoot him '; he was behind Sharp, -who had let his horse 1 
go before he was shot ; he only heard one report. 

"Mr. Lassiter' was with the party in the morning, and 

' proved about the same as the other witnesses ; was present, 
also, when Sharp was killed; the first 4ie saw of Noles, he 
was in the yard, with his gun in his hand pi'esented ; he said^ 
' Stop, or I will shoot ', — he would not be rushed on, and the 
gun fired nearly as soon as the words "were out of his mouth ; 
he did not hear any b^dy say, ' Siioot'; the gun was not pointed 
at Sharp until he got down, and when he got down he'had his 
v^ ^gun in his left hand ;. witness was behind Sharp some tiiirty 

- paces ; Sharp had let his horse go, with tSie bridle reins over 
his neck, before he'wks shot, ^ti'd was on t'li-e ground when he 
Vas shot ; witoess-lieard but one reporfc^ • *~ ,^, . .♦i :,■ 



JANUARY TERM, 1855. ^ 

^''^~~'' "~ Nolea V. The State. 

"Dr. Gee examined the wounds of the deceased ; his death 
was produced from the wounds iie examined ; they were in 
the left side ; there were two wounds on his left arm, both in- 
flicted b7A)ne shot,^ — where the shot entered, and where it 
passed out, making two wounds ; this wound was about two 
or two-and-a-half inches below the point of the shoulder where 
it passed out ; where this' shot entered the arm it must have 
broken the bone, if the arm had been down ; it could only 
have taken the direction it did when the arm was raised. Dr. 
tree's opinion was, that this arm was raised level when this 
shot struck it ; that it passed up the arm, and went out at the 
point of the shoulder. 

" Mr. McCain was not present at the shooting ; followed 
the prisoner into the Sta.te of Georgia, where he arrested him, 
and brought hjin back to Alabama. B. T. Sharp was brother 
to the deceased ; saw Noles when he shot ; was one hundred 
an4 fifty yards off still, behind all the company ; thinks his 
brother's gun did not fire ; the horse deceased rode was a 
very wild horse, and deceased knew he could not shoot off of 
him. This was all the evidence given by the State. It was 
then admitted by the State, that Mrs. Bai-rett, if present, 
would prove that she heard two flistinct reports of guns, in 
quick succession, between a quartfer and a half-mile from the 
place, and at the time Sharp was killed. West proved, also, 
that Hall, one of the witnesses for the State, told him that, * 
when they went to Noles's, they did not want to take him, but 
wanted him to go away. ^ 

"■ His Honor, among other things, charged the jury: 
, "I. That . Sharp' and his party, in^ going to the house of 
Noles to arrest him, not having any warrant to do so, and no 
charge of felony against him, were all trespassers ; and that • 
the prisonpr had the right so to consider them, and to tr6at 
them as sufch. 

" 2. But, notwithstanding this, if neither Sharp, nor his 
company, intended to commit any felony against Noles, (as by 
killing him, or doing him great bodily harm, stealing his ^ 
goods, or burning his house, or the like,) and that neither ' 
Sharp, nor any of his company, said or did anything which 
might induce Noles to apprehend that they intended to com- 
mit a felony, or such things as are above referred to, — then 



8« ^ ALABAMA. 



Noles V. The State. 



Noles could not justify killing Sharp, but would be guilty at 
least of manslaughter, and of murder if the killing was of 
malice, as the court will hereafter explain. 

"3. That the law regarded the liberty of the* citizen as 
sacrefl, and every arrest of a citizen without warrant (where 
no felony actually committed was charged, and where the ar- 
rest was not to prevent the commission of a felony) was a 
trespass, and such arrest was unlawful ; that such unlawful 
arrest was, in law, a great provocation, sufficient to excite 
and heat the blood of the party arrested ; and that, if, under 
such heat and excitement, the party about to be arrested, to 
prevent it, kills the trespasser, — it would be only manslaughter. 

" 4. But, if in this particular case the prisoner knew and 
believed that Sharp and his party only intended to arrest him, 
and carry him before Esquire Burns, to answer the complaint to 
keep the peace, and to |)revent this he killed Sharp, with what 
the law calls malice, as already explained to the jury, — tlien 
ke.wbuld be guilty of murder, notwithstanding the tmlauful' 
ness of the arresfifig so intending to carrying him before Justice 
Burns. ' 

-'''**-^he prisoner excepted to the charge of the cou^t, and 
'vTrate out and asked the following charges : 

" 1. If the deceased and his company went to the prisoner's 
house in order to arrest Mm, having no warrant or authority 
to do so, then they were all trespassers, iand the prisoner was 
• '^^ot bound to submit to their arrest, and, in forbidding their 
approach, he did no more than he ha^ a right to do ; and if 
*^the company, or any of them, refused to stop, but still ad- 
vanced, intending to arrest him, and he could only prevent the 
arrest by takiftg up and presenting his gun at the patties so 
* advancing, he had the right to do so ; and if, when he so pre- 
sented his gun, ' still forbidding their approach, one of the 
party called out to Sharp to shoot the prisoner, — if Sharp had 
a gun, and dismounted immediately, and did then any act or 
'acts calculated reasonably to satisfj^ the prisoner that he was 
*V l^en in danger of being immediately shot by Sharp, — then it 
^ -was lawful for the j)risoner to shoot, and if he killed Sharp, 
it wats neither murder nor manslaughter, and the prisoner was 
entitled to an acquittal. This charge the court gave. 

" 2. That the perbon of every free white-man is sacred in 



i 



JANUARY TERM, 1865. 39 

Noles V. The State. 



law", and ev^y arrest, or attempt to arrest him, without war- 
rant OT*- other legal authority, is a violation of his rights, to 
whieli he is not bound to submit, and if he can only prevent 
such unlawful aurest by taking the life of the aggressor, he 
has a right to do so ; therefore, if Sharp and his company, 
having no warrant or other legal authority to arrest the pris- 
oner, went to his house, intending to arrest him, arid then and 
there attempted to arrest him, and* such arrest could only be 
prevented by taking the life of Sharp, then- the prisoner is 
entitled to an acquittal. This charge the court refused, and 
the prisoner excepted. 

" 3. If Sharp and his company went to the prisoner's house 
to arrest him, without warrant or other legal authority, the 
prisoner was not bound to submit to that arrest, nor was it 
necessaiy for him to feal" or believe that Sharp and his com- 
pany intended to commit a felony, or to commit such violence 
on his person as to produce to him -great bodily harm ; but, in 
order to preserve, protect, and defend his liberty, he had a 
right to resist and prevent this unlawful arrest ; and if, while 
doing so. Sharp and his party still, persisted in their determi- 
nation and attempt to arrest the prisoner, then the killing of 
Sharp is not more than manslaughter at the most ; and if the 
arrest of the prisoner could not be prevented otherwise than 
by killing Sharp, then such killing is neither murder, nor 
manslaughter, and the prisoner should be acquitted. This 
charge, as a whole, the court refused, and the prisoner excepted. 

""4. If Sharp and his Company went to the prisoner's house, 
intending to arrest him on any charge not amounting to fel- 
ony, and the prisoner had fled, or refused to submit to the ar- 
rest, then, if Sharp and his company could not arrest him 
vrithout taking his life, and the prisoner had been killed by 
Sharp, — theli such killing would have been murder in Sharp 
and his company, so consenting to the same. This charge 
the court gave." 

(The fifth charge requested is not stated in the record.)' /, • 

" 6. When a man acts under a necessity, malice is not im- 
plied from such acts, but such acts are referred to the neces- 
sity under which he acts. This charge the court gave as 
asked." 

The jury, by their verdict, " say, they[find the prisoner guilty 



4S - •• ALABAMA. 



Noles V. The State. 



of murder in the first degree, and penitentiary for life" ; and 
the court thereupon sentenced him to confinement in the pen- 
itentiary for life. 

All the matters covered by the exceptions Above stated, to- 
gether with the judgment rendered on the verdict, are now 
assigned for error. 

^tTHOS. Williams and Geo. W. Gayle, for plaintiff in error: 

1. The court erred in admitting parol proof that the pris- 
oner's wife had made an affidavit against him, when the cou^t 

, had just excluded the affidavit itself. . ^i, 

2. The court eiTcd, also, in permitting Burns to testify that 
he had authorized Sharp to go and arrest the prisoner, and 
that he\gave him the paper which |;ie had issued, when the 
court had previously excluded the warrant itself. 
. 3. As to the charges given and refused : Self-defence in- 
cludes the right "to preserve, protect, and defend-" • personal 
liberty, as well as life, limb, or property ; and therefore, " to 
preserve, protect, and defend " his p^sonal liberty, a man has 

. the same right " to repel force by force" that he would have 
to defepd life, limb; or proper^'. — Constitution of Alabama, 
(Code, p, 30,) §§ 9, 11; 12 Ala. 840 ; ,-8 Pick. 183 ; 8 Durn. 
& E. ,79 ; 3 Ired.- 92. Every arrest of a freeman without 
warrant, unless it be under a, charge of felony, is unlawful, 
and he may use as much force as is necessary either to prevent 
the arrest, or to effect his escape if arrested ; and if he can- 
not prevent this unlawful arrest, or regain his liberty, but by ^ 
slaying the aggressor, he has the right to do so, and cannot 
be convicted of any offence for so doing — at least, not of mur- 
der in . any degree. — Stevenson's case, 1.0 State Trials 462 ; 
Tooley's case, 2 Ld. Raym. 12Q6 ; Pickett's case, 3 Camp. 68; 
1 Stark. Rep. 246, or 2 Serg. & L. 376; Thompson's case, 2 
Moody's Crown Cases, p. 80 ; Curvan's case, i6. 132 ; 1 Hale 
455-6 ; Cro. Car. 371 ; Cook's case, ib. 537 ; Fost. 319 ; 8 
Pick. 133 ; 1 Russ. on Crimes, m. p. 630-1; Roscoe's Cr. Ev., 
m. p. 751; 1 East's P.. C. 310; ^yerg,459; 1 Mann. (Mich.) 

fihll l?V^harton's Am. Cr. Law, p. 254. 

M. A. Baldwin, Attorney Qreneral, contra: 
V,,.w=l. There was no error in permitting witness Burns, the jus- 



J 



JANUARY TERM, 1855. - ' Ij -, 

Noies V. The State. 



tice, to state that the wife of Noles, the prisoner, had made 
an affidavit before him, and that he (Burns) communicated 
this fact to prisoner, and read him the affidavit. No ground 
of 'Objection is stated. — Sallyjs Adm'r v. Caps, 1 Ala. 1^1; 
-Planters' & Merch. Bank v. Borland, 5 ib. 543 ; Baldwin t. 
Carter, 17 Conn. 201; 12 S. & M. 161. ;. > 

2. The charges given by the court are more favorable to 
the prisoner than the law really is. 

3. Both the second and third charges Risked were correctly 
refused ; for, although a man may repel force by force in de- 
fence of his person, habitation or property, against all who 
manifestly endeavor, by violence or suspicion, to commit a 
known felony, (lEast P. C. 272 ; 1 Hale P. C,445; Whar. 
Cr. Law 254.) yet the law' will not justify him in taking life 
for the purpose of preventing a mera trespass ta property, or 
an assaidt upon his person, which does not threaten a felony 
or great bodily harm.-:— 1 East. 287 ; 1 Russ. on Crimes 519 ; 
Whar. 235; Okver t. The .State, 17 Ala. 598 : Carroll v. The 

.State, 23 ti. 36 ; The State v. Morgan, 3 Ired. 192 ; McCoy 
v. The State, 3 Eng. 454 ; Commonwealth v. Drew, 4 Mas^ - . 
396 ; United States v. Weltberger, 3 Wash. C. C. 521; The 
State v. i^mith, 3 Dev. & Batt. 117; United States v. Travers, 
.2 Wheelex's Cr. Cas. 497, oQi) ; The State v. Craton, 6'ired. 
173 ; People v. John Doe, 1 Mich. 456. 

4. Killing an officer for arresting one illegally^ is extenuated 
"^ manslaughter. — 1 Chit. Cr. Jjaw 23 ^ 1 Russ. 51^ ; Whai>. 
236-7; 1 Rues. 512.. ' - ." 

5. If the party killing upon provocation- (as fi)T an assault, 
illegal restraint, and the like) make use of a deadjy weapon, 
it is murder. — 1 East P. C. 233 ; 1 Russ. 515, and notes ; 

jJacob y. The State, .3 Humph. 517. , 
,6* An attempt illegally to arrest a person is no greater 
.trespass and provocation than an assault upon his person. 
For assaults on the persoji, no one is justified in taking the 
life df the assailant, unles^" Jo save his own life, or prevent 
some great personal irfjury ; and tlie necessity must be immi- 
nent, and the party assailed must retreat, unless in so doing 
he endangers the chances of safety .—JRoecoe 770; l.R^ss. 517. 
7. The nature of the weapon used must be looked at, to 
determiiie^ l^.4"?&^^ ofjioij^i^e .— ;Arck. 414 i .A^BflSg. 52Q. 



42 " KijABAMA. 



Noles V. The State. 



"^-■8. The charge mtist be coneidered in reference to the testi- 
mony in the case. The charge asked should have contained 
a i]fe'oviso to the effect that Noles had used all means in liis 
power otherwise to save his own life, or prevent the intended 
harm ; su'ch as retreating as far as he could, or disabling his 
adversary, without killing bim, if 4n his powen — ^1 Mich. 456; 
People V. John Doe, supra. , 

9. No arrest had been made or attempted when the killing 
took place. — 4 Mass. 396 ; 1 Mich. 456. 

10. Was the killihg under suc^ a necessity, real or apparent, 
as the law requires before one is allowed to take the life of 
another? • 

11. The verdict is plain and intelligible, aad that is all 
that is necessary.-— See Code, § 3080 ; The State v. Stephen, 15 
Ala. 534 ; Nanoe v. The State, 6 i6. 48^ ; Noles v. The State, 
34 ib. 694 ; Pettis v. Bingham, 10 N. H. 519 ; Schlenker v. 
Bisley, 3 Scam. 483; Bank v. Batty, 4 ib-. 200; State v. Yancey, 
3 Brevard 144; State v. Fuller, 1 Bay 243; Hstwks v. Crofton, 
2 Bur. 698; NabOrs v. The State, 6 Ala. 201; 1 Chitty's Cr. 
Law 644. 

RICE, J. — To excuse one individual for taking the life of 
another, there must exist a necessity to prevent the-commission 
of a felony or great bodily harm, or a reasonable belief in the 
mind of the slayer that such necessity does exist: 'If there is 
neither the existence of auch necessity, nor any reasonable . 
belief of its existence, the law will not acquit tJie slayer of ^ 
all guilt.— O'liver Y. The State, 15 Ala. 587; Pritchett v.-thQ 
St^te, 22 ib.Zd. 

- The case of a mere trespass upon the person and liberty of 
the slayer, which created no reasonable belief in his mind 
that any of the trespassers would commit any felony or do 
him any great* bodily harm, cannot be allowed to cohstitute 
gfn exception to the foregoing rulee. When such trespass Is 
threatened or committed, he hag no right to kill,' unless ^e 
^unlawful act, when properly and lawfully resisted by him, is 
persisted in by the trespasser, until it ultimately results either 
In an actual necessity on his part to kill in order to • prevent 
the commission of a felony or great bodily harm, or in the 
reasonable beUef by him of the existenee of such neeessity. — 



JANUARY TERM, 1855. 48 

' Noles V. The State. 

Carroll v. The State, 23 Ala. 28; State v. Craton, 6 Ired. 164. 

Believing the foregoing legal' propositions to be correct, 
and being bound to construe the charges and refusals to 
charge in connection with the evidence, we cannot do other- 
wise than declare, that there is no error in the charges given, 
nor in the refusals to charge as requested, of which the pris- 
oner has any right to complain. 

We admit the right of any citizen to resist any attempt to 
put any illegal restraint upon his liberty. But his resistance 
must not be in enormous disproportion to the injury threat- 
ened. He has no right to kill, to prevent a mere trespass, 
which is unaccompanied by any imminent danger of great 
bodily harm or felony, and which does not produce in his 
mind any reasonaMe belief of such danger. We cannot sanc- 
tion the charges asked by the prisoner and refeed by the 
court, to the full extent to which they go. 

Any fact which tended to prove what was the real motive 
of the prisoner for killing the deceased, or the purpose of de- 
ceased in going to. the house of the prisoner, or which tended 
to prove that at the time of the killing the prisoner knew 
that the deceased and hi^ cdinpan\ons did not intend to com- 
mit any felony, or do him any great bodily harm, was relevant 
evidence. In this point of view, the evidence excepted to by 
the prisoner was admissible. 

The prisoner did not olyect to this evidence on the gVo^und 
that the affidavit and' warrant were not produced ; they had 
just been oflfered by the State, and been excluded on the ob- 
jection of the prisoner. The only question raised by the 
objection was as to the relevancy of the evidence as offered; 
and as it was relevant, there was no error in overruling the 
objection. If the prisoner had objected on the ground that 
the affidavit itself and warrant were not produced, and the 
affidavit and warrajit had not then been produced, we would 
have been called on to decide whether such an objection 
should have been sustained. But as it is not presented in 
that way, we do not intimate an opinion on that question. — 
Allen V. Smith, 22 Ala. 416. 

The verdict is sufficient to sustain the judgment and sen- 
tence.— Noles V. The State, 24 Ala. 672. 

We are fully convinced that there is no error against the 



44 • -ALABAMA; *'^ -I 

Stewart y. Th& State. 

prisoner, in any of the proceedings, which authorizes a reversal 
of the judgment aitd sentetice pronounced by the Cirpuit 
Court of Dallas county ; and we affirm said judgment and 
sentence, and direct said sentence to be carried inta execution. 






V*'-. 

STEWART vs. THE STATE. 

i ■ ■ ■ ^ , , , 

-I'b. Where three are jointiy indictSd for an asgaalt with intent to murder, but 
are tried separately, a letter written by one of them to the prosecutor some 
time before the commission of the assault, showing malice and ill-will on the 
part of the writer towards the prosecutor, is not admissible evidence against 
another who, though parUceps criminis in the assault, is not shown to have 
bad any connection whatever with the writing of the letter, nor to have 
acted in concert with the writer, ppj? to have ^paijticipated in ^ ill-will to- 
wards the prosecutor. ". ' * ' ^•. 
2. But, it 9eems. if the defendants had entered into a coifepiracy to kill .the 
prosecutor, and the Jetter was subsequ^tly vsritten by one of- them to bring 
on the difiBcnlty, or in furtherance of their 'common design, it would be ad- 
missible evidence against all of them ; the act of each, in furtherance of the 
' common design, being deemed in law th6 acJt of all. 

Error to the Circuit Court of Dallas. ■ ;"«ff 

^ • Tried before the Hon. ^Tat. Cook. 

. f ' ■'"'■• " ', ' '* 

-I'John StewiSirt, George M. Gordon, lind John Gordpn, were 
indicted (under the Code) for an assault with intetit to 
r&urder committefd on one Nathaniel J.Xilly. The defendant 
Stewart being on trial alone, " the State -w^as permitted to 
prove what Gfforge Gordon said 'to Mrs. Lally (wife of the 
pl-osecutof) and one Mrs. Roscoe, during the time the offence 
charged is alleged to have been" committed ; said Gordon be- 
ing indicted with defendant, and the proof showing him a 
particeps ctiminis with defendant, and defendant being present 
at the time the- words were spoken. To this defendant ob- 
jected, and his objection beiug. overruled, he. exeepted.V-it 
was proved tlmt.'the Q^ence was cdraraitted at the'^rosecutor's 
house in the- night-tinje, his family being present; The State 
was permitted, also, to make proof of the contents of letters 



_^ JANUAttY TERM, 1855. 45 

Stewart v. The State. 

written by said George Gordon to the prosecutor some time 
before the offence charged is alleged to. have been committed; 
which, said letters made " no allusion or reference to the de- 
fendant, nor to the oflFenCe charged agaifist him, and alluded 
only to the prosecutor's wife, and to the conversation and 
charges made by her against said Gordon, and were in eifect 
and substance as follows : That the ■^ife of said prosecutor 
had been using offensive language, and mai^ng unjust charges 
against said Gordon, and that he (Gordon) desired the prose- 
cutor to make his said wife hold her tongue and cease talking 
about him ; that he (the prosecutor) did not know who he 
was dealing with, arid if he had anything against him (Gordon), 
and wanted satisfaction, he (Gordon) would fight him in any 
way, from the pdint of a needle to the pbint of a cannon. It 
did not oppear in evidence that defendant was in any way 
concerned in writing said' letters, or that he ha4 any knowl- 
edge of the writing or sending of them ; ^nd they were per- 
mitted to go to the jury without any proof of the knowledge 
or participation of defendant ; to which defendant objected, 
and his objection being overruled, he excepted." 

Other rulings of the court were excepted to during the 
progress of the trial, Vhich ii is unnecessary to state ; the as- 
signments of error cover all the Exceptions shown by the record. 

•. S'.E. Blake and ^eo. -W. .G-ajle, for the plaintiff in error: 
The court "erred in permitting the State to prove the con- 
tents of tl^e letter written by Gordon to the prosecutor some 
time before the commission of the assault. The acts and de- 
clarations of one defendant cannot bind another, unless they 
were made or done under a concerted plan, and in furtherance 
of a common object; The mere d^ci^ration^ of the party 
cannot establish such coneert, nor does the mere participation 
in the assault. The Statue should have been held to prove 
the combination or conspiracy, before the previous declarations 
of one defendant cauvlsind the other. — 1 Phil. Ev. 93, 94 ; 1 
East's P. C. 90, .97; 2 Stark. Ev. 232, 234, 235; Roscoe's Cr. 
Ev. 76 ; 6 Term R. 527. The declarations of one defendant, 
amounting to a mere recital of past events, cannot be admitted 
to bind another : they must amount tojacts in furtherance of 
a concerted plan and a yamim^ purjPPS?' S^ ^^^^ ^^^^ ^S^5^' 



46 ALABAMA. [^-K 

Stewart v. The State. 

pany the transaction.— 1 Phil. Ev. 95, 97; 2 Stark. Ev. 236. 
The letter does not appear to have any connection with the 
transaction, nor with any concerted plan or common purpose ; 
and such connection must appear, either upon tlie face of the 
instrument, or by proof aliunde. — 2 Stark. Ev. 234 ; Roscoe's 
Cr. Ev. 79 ; Foster's C. L. 198 ; 2 Stark. Cas.140 ; Hardy's 
case, 24 Howell's State Trials, p. 452 ; 2 Burr's Trial (by 
Robertson), pp. 538-9 ; Apthorp v. Comstock, 2 Paige 488 ; 
1 Hawks 442; Ex parte Swartwout, 4 Cranch's R. 75; 1 East's 
P. G. 119 ; 4 Black. Com. 80. 

M. A. Baldwin, Attorney General, and William M. Mur- 
phy, contra: 

Gordon's letter to the prosecutor did not tend to prove a 
conspiracy; but it did tend to show the feeling'— the design — 
the malice — the threat of Gordon te commit a felony on Lilly; 
and afterwards a felony was committed on Lilly by Gordon 
and others. This letter, then, can be reaid as an act to show 
the nature and tendency of the conspiracy alleged, and which, 
there'fore, might be read' a.s the foundation for affecting the 
prisoner with a share of the conspiracy. — 2 Stark. Ev., top p. 
235; 1 Green. Ev., § 111; 3 ib., § 93; The People v. Mather, 
4 Wend. 201. The distinction is this : After the conspiracy 
is shown, and the otfencc committed and proved, that makes 
the conspirators a unit ; and then the letters of any one of 
thejn, written to the person upon whom the felony was com- 
mitted, and in relation to the offence charged, would elucidate 
the nature of the intent, and would be admissible evidence 
against all. — 4 Wend. 261, supra; 2 Esp. €as. 719. No au- 
thority can be found, which, after the conspiracy is proven, 
excludes the previous aots or declarations of one of the con- 
spipators in relation to the conspiracy ; because the proof of 
•the conspiracy makes one act, one offence, and otje pffender 
in law. If Gordon was on trial aloije, his letter would cer- 
tainly be admissible • against him ; and if a conspiracy is 
shown, in which Stewart was 'CouQerned, he is Gordon. 

■ CHILTON, C. J.— There is no' pretence that the appellant 
Stewart had any connection whatever with the writing of the 
letter by Gordon to Lilly, which was read in evidence against 



-H^^ JANUARY TERM, 1855. * 4t 

\ Stewart v. The State. 

hira, — no evidence that he was cognizant of it, or acted in 
concert with Gordon, or in anywise even partook of the ill- 
feeling which is evinced by the letter as existing between. 
Gordon and Lilly at the time the letter was sent. Neither 
does it appear that, at the time when the offence was com- 
mitted by Gordon, and in which the prisoner participated, 
anything occurred whidi could connect the prisoner with this 
letter by relation. All that does appear is, that Stewart was 
a '^particeps crkainis" — that is, as we understand it, the pris- 
oner participated in the assault niade upon Lilly by Gordon ; 
but it does not follow from this participation, that he is to be 
charged with or affected by the wrongful acts of Gordon an- 
terior to that time, which have.n* connection with the offence 
intrinsically, and with which he is not shown to have been 
connected by concert or otherwise. Gordon may have 
been influenced by the most settled and deadly hostility, and 
yet the defendant, Stewart,^may have acted upon some sudden 
ebullition of passion, in the absence of aH prefionceived ma- 
licious design. In such case, he might be a particeps with 
Gordon in the assault, and yet not partake of his previous 
aicts evincing his malice. If, however, with a knowledge of 
this malice an the part of Gordon^ towards the prosecutor, 
Stewart entered into a coijspiracy with «him to kill Lilljr, and 
this letter was written afterwards- by Gordon to Lilly to bring 
on the diiBculty, or in furtherance of the common design, then 
we should not be prepared to hold that it would be incom- 
petent. The rule is, that every person entering into a common 
design, already formed, is deemed in law a party to all acts 
(i«ne by any *of the other partieg, before or afterwards, in fur- 
therance of the common design. — 3 Greenl. Ev„,§93, and cases 
there cited. This rule, ^hich is generally af^^icable to the 
offence of conspiracy,. is grounded upon the reason, that by 
the act of conspiring together, the conspirators have jointly 
assumed to themselves as a body the attributes of individu- 
alitgr, so far as regauds the prosecutiop of the common de^ii, 
thus making the act of each a pari; of the res gesta and. the 
act of all. ■ ^ ' 

But it is very clear, that the acts or declai;ations of neitljer 
party, which occurred before any conspiracy was formed, fall 
lyithin the pi^inciple of admisgitjjytij^.—^SG^ 






v»- 



'^ M * <^^g;f ALABAMA. ',^, 

~^- . T " ' - '■ — ■ — ' " ' ■ 

John Elam v. The State. 

V * 2 Riiss. on Crimes (ed..l853) 696-8 ; 1 Phil.Ev. (9th ed.) 201; 
' f' 1 East's P. C, ch. 2, § 37, p. 96 ; 2 Stark. Ev. 326 ; Regina 

' * ,y. Murphy, B.C. & P. 2^7: Regina v. Shellard, 9 ib. 277. 

' '*'*')5he yie.w which- we entertain upon this point shows that 
the court erred in admitting the proof of the letter written 
by Gordon to Lilly ; and as the other questions which are 
raised will not likely recur upon another trial, we deem it 
unnecessary to decide them. 
. iiett^e judgment be. reversed, and the cause remanded. 



■m 



•^ 



*^ 



.^^■? 



JOHN ELAM vs. THE STATE. 



1. ITbder an indictment for retailing without a license in the general form af 
lowed by the Code, (§ 1059, )_ the defendant cannot rsquire the prosecuting 
attorney to. state and elect, before any evidence is offered, for which one of 
the different vai'ieties of i-etailing he intends to proceed. 

2. But after the State has once made its election by offering evidence of one 
particiilar offence, it will be held to that election .throng all the future pro- 
ceediiigs, and on a second trial under the sanje indictment will not be 

allowed to offer evideqce of a different offence. ' ^ _ . 

' - ■ ■ ■ - ' ---;i' - i, ■ • ■-'.■, 

Appeal from the Circuit Court of fl^uskaloosa. 
Tried before the Hon. Edmund W. Pettus. • 

The appellant was indicted at the 'September term, 185S, 
of the Circuit Court of Tuskaloosa, for retailing, and was 
conyicted ; biirf>hav,ing taken an appeal to the Supreme Court 
at its June term, 1854, the judgment of conviction was re* 
versed, and the cause reilianded. — ^See 26 Ala. R. 53. Another 
trial was had ai the 'September *tei'n^, 1854, tfn the pleas of 
not guilty and foi'mcr acquittEtl ; but before any evidence was 
introduced, as the bilt of exceptions states, " the defendant 
movefl the court that the solicitor for the State be required to 
state and elect for which of the three offences of retailing the 
fldendant'wa's t© be'tried ; ^hlch motion was overruled, aiyi 
the defendant excepted." ' , j"* ;' 

' '"Plie State then introduced evidence tending to show that 



.- -^^ 



JANUARY TERM, 18^* • ">^'- ' -tHk'- /' 

■ ■ i "^* , ■ / >,; .,3S» t ^-* ' • 

John Elam V. The State. ^\ ' ^ *'»"■»■ 

■ ^' "Ji.T* 



the defendant, in the month of August, 1853, sold a quart of 
whiskey to one James McDowell ; that said James was then, •?* 
and had been for many years before, a man of intemperate 
habits ; that he then lived in the neighborhood of defendant, 
and tiiat his reputation in that neighborhood was then, and »./♦ 
had been for many years, that of a very intemperate man ; '-' \ 
that said James w^s, on the 4th of July, 1853, drunk at de- ' *\ 
fendant's house,. and in his .presence." The defendant then "^^ '. 
introduced and read an indictment found against him at the ^ ^ 
September term, 1853, of the Circuit Court of Tuskaloosa, . *.^ 
which was identical in every respect with that under which y . 
he was on trial ; " and proved that a trial bad been had under ' ; 
said indictment at the present term of the court, on the pleajpf >>Mi^ 
not guilty, and that the verdict of the 'jury was not guilty ,t.^ . 
that a judgment of acquittal was rendered by the court on .f 
said verdict, and that said judgment was in full force. He 
then proved, that the act of retailing sought to be proved by 
the State on said trial was for selling a half-gallon of whiskey 
to the said James McDowell, on the 4th day July, 1853, and • 
suffering the same to be drunk on o^r about his premises ; that *' * 
on the former trial of this cause, when defendant was con- 
victed, (and the conviction reversed and remanded by .the ■ 
Supreme Court,) one of the acts of retailing sought to be . . 
proved by the'Sitate against him was for selling the said half ' 
gallon of whiskey to the said James McDowell on the 4th 
day of July,- 1853, and that the State (|id not, on said last 
named trial, offer any proof of the selling by defendant of 
spirituous liquor^ by the quart to the said McDowell in the 
month of August, 1853. The defendant then insisted, that 
th<3 State should be confined on tlie present trial to the same 
acts of retailing for which the defendant was convicted on the 
previous trial of this cause, and moved the court to exclude 
from the jury thB evidence relating to the selling of said quart 
of whiskey in the month of August, 1853 ; but said motioh ' ' 
was overruled, and defendant excepted. 

The court gave several charges to the jury, which were also . . \ 
excepted to, and which are now assigned for error ; but it is 
unnecessary to state them, as they are not noticed in the 
opinion. The other assignments of error embrace the rulings 
of the court above stated. ;•"'''. , ' •> .'':'*",v*" 

4 ,_'•'■ ' '' ■ ■^ ^ ■ 



''^' ALABAMA. -^ 



John Elaiq v. The State. 



1h ' ^ * ■ 



W. Peck, for the appellant, contended,— 
That the court should have required the prosecuting 
attorney to elect for which of the three kinds of retailing 
specified in the statute the party charged was to be tried. 
- Although the Code (p. 244, § 1059) authorizes any act of 
retailing to be proved, yet it does not authorize every act of 
retailing that may be committed, and every kind of retailing, 
to be successively gone into on the same trial. 

2. The State should have been confined, on the second trialj 
to the same oflfence of which the defendant had been convicted 
on the first trial. 

Sy^. The evidence sustained the plea of former acquittal, and 
^.. therefore the charge £)f the court was wrong. Where the 
!' same evidence will support both indictments, autrefdis acquit 
is a good defence ; and these two indictments being in the 
same words, and found at the same term of the court, the 
same evidence would support either. — 1 Chitty's Criminal 
Law, top p. 369. * ■ - , * 

" ■ ^ .M. A. Baldwin, Attorney G.etieral, ccnUra ;; 

1. It' is a matter of discretion with thfe court, whether or 
jtot the prosecuting 'officer shall be compelled to elect for 
'whieh offence he will proceed. The practice generally is, to 

refuse such motions, and leave the matter to th'fe T)ption of the 
• solicitor. . ' 

2. After the case had been remanded for anotlier trial, I 
know of no rule of-law confining the Statfe to the same evi- 

i*' dence that was adduced on the first trial. Any offence against 
the law of retailing, not barrel by the statute, and upon 
which np conviction or acquittal had 'been had, might be 
given in evidence on the- second trial, whether it Sad been 
given in evidence on the fornrer trial -or not. * ' 

3. Both the charges given are in strict confoa'mity with the 
decision of this conrtan 25th Ala. R. 53. 

r ..GOLDTHWAITE, J.— We see no, error in the actidh of 
the court in overruling the motion made by. the defendant 
below, to require the solicitor to statfe in advance for which 
of the different varieties of retailing he was to be proceeded 
against. The indictment, it is true, is general in its form,' 



JANUARY TERM, 1855. ^ • 

John Elam v. The State. 

but its suflBciency was determined when this ease was last 
here (25 Ala. 53) : but the faet that it is general and broad 
enough, under the .Code, to allow evidence of any yiolation 
against the law of retailing, is not a suflBcient reason for 
cequiring the prosecuting oflScer toi st^te beforehand -the par- 
ticular offence he intends to prove. At tiie common law, 
under an indictment containing but a single count, ovidence • .- 
of either one -of -several distinct and separate offences Hiighi " '• 
be ^iven in evidence, as in cases of different assaults commit- 
ted on the same person,- differeut affrays between the same 
persons, and ,ra many- other, cases. If a defendant were to • ^ , 
announce that he had committed several assaults on the per- . • 

son named in the indictment, and not knawing for which of f «, 
these- assaults the indictment was found against him, ask as a 
right that the prosecuting officer should state for which one 
of these offences he intended to proceed, we apprehend the 
Court might Very pi'operly overrule his motion. The case^at 
bar may be stronger than the one put,. but. it depends upon 
identically the same principle. » 

We think, however, the court erred, in not confiiiing the ^ ^| 
State to the same offence in relation to which evidence had 
been offered on the former trial. The rule of the common '! ' 
law was, that where but one offence was charged, the evidence ' * 
must be confined to one ; and the Code has not changed that 
principle, and- could not, perhaps, do so without violating the 
constitutional right which the defendant has of halving the '■ ■ 

offence passed upon by a grand jury. It allowsj it is true, in 
certain cases, more than one offence to be charged, even in 
the same count (§ 3506) ; and when Hiis is done, evidence as 
to each offence may be oflei^d. The general* form of- the 
indictment allowed by section 1059 of Code, against retailers, 
does not, if followed, include more than one offence ; and the 
provisions in the same section, which allow any act m violation 
of the law to be proved under such an indictment, cannot, 
upon any sensible rule of construction, be 'intended to mean 
more than one^ct. In civil actions, if but one act, is charged 
in the declaration, Mie plaintiff cannot give evidence of any 
other ; and it is- also laid down, that if he prove one, he 
cannot waive tjiat, and prove another .-^6 tante- v. Pricket, 
1 Campb. 473 ; 2 Greenl. Sv. § 86. In criminal cases, where *' 






52* -V- i^m-m^SM ^ ^-^iX •'■ ■ 

~~ Aan-all v. The Stule. 

the grand jury have by their bill found but a single offence, 
the presumption is, unless it otherwise appear from the indict- 
ment, that the act to which the evidence offered by the State 
relates, is the one to which the indictment refers ; and if that 
presumption is correct, it would necessarily exclude evidence 
as to any other. The true rule, therefore, is to hold the State 
to the act to which the testimony relates, if it can be covered 
by the indictment, and but one offenee is charged. If the 
prosecuting officer deepis it for the interest of 'the State, that 
evidence as to different offences should, be offered, he must 
frame the indictment accordingly ; which is.in:'6vcry «a3e" 
very easily done. We have ' laid down the rUle generally, 
and think that, after 'the election is once made by offering 
evidence on the payt o^ the Srtate,- it holds- through all future 
stages. The same reasons exist for its application on the 
second trial as on the firet. The election once made, in the 
mode we have stated,- becomee an act^in the eause,.and cannot 
be separated from it. • » , ^ *^ . ?.»'*• 

Judgment reversed, and caiise remanded. • i* *' 



^•■ 



ft 



HARRALL vs. THE STATE. 



'j*^. 
U 



'|;,If the order for a change of venue, in a criminal case, directs tfie cFerk to 
•/transmit " the original papers in the caitse," it is nevertheless his dnty (Code, 
§ 3613) to traasmit a transcript ; and such ordet^ even if erroneous, is no 
ground for a revers^hof the judgment and sentence of conviction. 

2. The failure of the clerk, after a change of venue has been ordered, tor trans- 
V ,»iBit a transcript to the cVrk of the court to jvljlch the trial is reiflovatl, and ■ 
;,5r4he-failBre to bavelihe cause cnterM on the flo<^et of that court at the term 

pext aftei^ thp order of t'emovaJ, is no>yiscontinua"hce of the prosecution. 

3. The coujt to which the tri^Lis reniQvetl may (Code, § 3615) issue a certiorari 
', io the clerk of the court in whieh t^ie fndicfment was found, recfujring.hira 
\ Iq transmit certified copies of any and all papers and entries in the cause. 

and may order the original papers to be reiurned to him. - ' 

4. It is not n^eeaary that an indictment, tinder the forms prescribed by the 
Code, should be signed by the solicitor. 

6, The certified copy €ff 'the indictment may be read to tlie Juryon the f rial ; 
''tni therefore, if the entire transcript, containing a copy of the indictnaent, 



JANUARY TERM, 1855. ' , ^ 

U» . U , . '. . I .1 »» •>!. .« I Iff I 

Harrall v. Tlie State. 

is offered to the jury, ^d the d«fendaut ol^ec.t^ to it ae a whole, his objection 
may be overruled. , s 

•6. A vei'dict fiudiiig the defeiulaat " guilly of murder in the first degree, aDd 
**jT)enitentiary for life," is sufficient to support a judgment of coavif tic^ ajibd 
sentence of confinement in the penitentiary for life. ,yV.!'««* • ti 

1 ■ * ■ * ■ • .' 

Appeal from tl\e Circuit Couivb of Dallas. 
<i« Tried before the Hon. Nat. GdOK. ♦ • 

Hbnry HABii*LL,,tHe appellaot, jvas* iridicted at the Pall 
t^r^^ 1853, of the Circujt Court of Wjlcox, for th,e murder of 
one John T. Daniel,— was arrested and arraigned at the same 
term, and-pleaded, not guilty, and a day was set for his trial. 
Ob a subsequent day of the term, before the day appointed for 
his trial, he made affidavit for a, change of venue, which was 
granted hy the (^urt ; whereupon it was agreed that the trial 
should- Be r:einov<}d Jo Dallas, county, and it was ordered* by 
the court " that the clerk of this cpurt transmit, by safe and 
convenient mode, to tl^e clerk of the Circuit Court of Dallas, 
seeureiy sealed up, the* original papere 'and "copies of all 
orders and entries made in said cause, under his hand, official 
seal, &c.; and, also, that Thursday of. the second week be a^ 
apart for the trial of this cause by consent." M 

At the Spring ^erm, 1854, of the Circuit Court of Dallas, 
on motion of. the solicitor,, the prisoner being present in per- 
son, it was ordered " that a certiorari issue to the clerk of the 
Ci^?cuit Court of Wilcox, commanding him to send to this 
court a complete, traneoript of thi^ cause, including the caption 
of the grand jury, a copy of the indictment, and all the orders 
made in said cause, under hi* hand and seal, by the next term 
of this court" ; and it was further ordered, " that the clerk of 
said court have leave to withdraw the original indictment, 
and all other original papers, which he has sent to this court." 
At the same term,, when the case was regularly called on the 
docket, " the defendant asked. leave to withdraw his plea of 
.not guilty,, for the purpose of moving to strike the case from 
the docket as having been discontinued by the State, and, on 
failure of such motion, to demur to the, indictment ; which 
-motion was continued- by i^ia court, together with the cause in 
which it is made." 

At the Fan term, 1854, tfie coart having, granted the de- 



M ALABAMA. 



Harrall v. The State. 



fendant leave to withdraw his plea of not guilty, he renewed 
his motion to strike the case from the docket on account of 
the alleged discontinuance ; and on the hearing of this motion, 
in addition to the proof of all the proceedings and orders as 
above set forth, •' it appeared in evidence, that the Fall term, 
1853, of the Dallas Circirit Court adjourned on the second 
day of the term, and that, at the time of said adjournment, no 
papers in this case, nor transcript of the proceedings, had 
been received from the clerk of Wilcox Circuit Oowrt, nor 
was the case placed upon the dockfit of the Dallas* Circuit 
Court. It was further in evidence, that the transci-ipt from 
- Wilcox Cipcuit Court was not recdtqd until the 13th Febru- 
iwry, ia54.- The clerk of the Circuit Court of Wilcox wa-g 
then- introduced, who testified, that he did irot make but the 
transcript until after the adjournment of Dallas Circuit -Court, 
and his reason for not doing so was, that he had heard the 
court was adjourned.'"'- The Court oveiTuled the motion lo 
stl'Jke the case from the docket, and the defendant -excepted. 
?^ The defendant then demurred^ to the indictment, "because 
li -was not signed by the solicitor of the circuit, but by one 
'A. Tomlinson, eo\. pro^em. 2d Qircuit' ; which demurrer the 
Court overruled, and the defendant then pld&,ded-not guilty." 
"''•The attorney for the State offered in evidence to the jury a 
j^per purporting to be a complete transcript of aH the pro- 
ceedings in the case had in the Circuit Court* of Wilcox, 
ectntaining a copy of the original indictment, certified under 
the hand and seal of the (?lerk of that* court ; to the reading 
of which transcript the, defendant objected, but his-objection 
was overruled by the court, and he «xc6pted. - " ?,^-«^ 

The jury returned a verdict finding the prisoner " guilty «f 
murder in the first degree, and penitentiary for life" ; and on 
this; vefdrict* the '-coutt rendered a judgment of eonviction and 
sentence of confinement in the penitentiary for life. 

The errors now a,ssigned are, 1st, that thi? court erred '"^ 
overruling the denittrrer to' the indictment f 2d, in granting a 
certiorariXoilne clerk of the Circuit Oouri of Wilcox ; Sd,in 
not striking the case from tiie docket as having been discoH-' 
tinued ; 4th, in rendering judgment on the vei'dict ; 5th, in 
the several matters shown in the bill of exceptions. '^^• 

'«- . ■.*■,-.'■ ■.■■,■... . ■. ■ 



JANUARY TERM, 1855. 0t 

Harrall v. The State. 

Geo. W. Gayle, with whom was B. Williamson, for ap- 
pellant : ■ '■■ 

1. The indictment is defective, in npt being sjgned by the 
BoliGLton It is drawn under the Code, and the statute adopt- 
ing the form is mandatory. — Gode, § 3502 ; Ex parte Simou- 
ton, 9 Porter 390. . > 

2. The Circuit Court of Dallas had no jurisdiction of ^e 
case ; it could not try on the original indictment, and had no 
right to award a cerUorari requiring the clerk of the Circuit 
Court of Wilcox to violate the instructions of another judge. 
Spencer, V. Barber, 5 Hill (N. Y.) 568 ; 2 Sup. U. S. Dig. 
848, § 10 ; Lynes v. The State, 3 Porter 348 ; Starr v. FpaE- 
cis, 22 Wend. 633 ; 4 Hill 554. -■ .*" 

3. The prosecution had been discontinued by not sending 
a transcript from Wilcox to the first court in Dallas. — Ken- 
non V. Bell, Minor's R. 98 ; Drinkard v. The State, 20 Ala. 
9 ;> Griffin v. Osbourne & Co., ib. 594 ; 2 Hawk. P. C. ^416, 
§ 84 ; ib. 417, § 88. The appellant was entitled to a " speedy 
public trial" :- if such delays are tolerated, a man may be kept 
in jail until his witnesses die, or move away. — Const. Ala. 
§ 10. The prisoner could exercise no control over the mat- 
ter, and it was not his fault. — Code, § 713. The prosecution 
had been discontinued, also, by striking the case from the 
docket of the Wilcox court under such instructions to the 
clerk that no other court could take jurisdiction, of it. — Drink- 
ard V. The State, supra. 

4. No judgment could be Tendered on the verdict. In 
criminal matters, nothing can be taken by intendment.- — The 
State V. Seay, 3 Stew. 123. '> .. ;^. 

M. A. Baldwin, Attorney General, contra : 

1. The indictment need not.be signed by the solicitor: it 
derives its authenticity from the action of the grand jujy.: — 
Ward V. The State, 22 Ala. 19. 

2. Although certiorari is a writ issuing from a superipr to 
an inferior court, yet the authorities sustaining it, in such 
cases as this, from one circuit court to another, are too 
numerous to be now questioned : the power is grounded, piiin- 
cipally, on the necessity of the case. — Calhoun v. The State, 
4 Humph. 477 ;. Barnes v. The State, 6 Yerg. 182 j. The St^te 



J9f^ 



^' 



66 ALABAMA, y:^/^ 

Harrall v. The State, 

V. Collins, 3 Dev. 119 ; The State v. Craton, 6 Ired. 166 ; 
The State v. Reid, 1 Dev. & Bat. 377 ; 1 Chitty^ Criminal 
^Law, p. 364^ Code, §§ 3613, 3015. 

3. The verdict is sufficiently certain ; although not so full 
as \t might have been, its meaning is- clear. — Code, § 3080 ; 
The State v. Stephen, 15 Ala. 534 ; Nance v. The State, 6 
Ala. 483 ; N'oles v. The State, 24 Ala. 694 ; Poindexter v. 
Commonwealth, 6 Rand. 667 ; Pitts v. Bingliam, 10 N. H. 
519 ; -Sdilenker v. Risley, 3 Scam. 483 y Bank v. Betty, 4 ib. 
2 f Porter v. Rummery, 10 Mass. 64 ; Sitate*- v.- Yancey, 3 
Btev. 144 ; 1 Bay 243 -, Hawks v. Crofton, 2 Burr. 698 ; 
Nabors v. The State, 6 Ala, 201 > 1 Chitty's Crim. Law, 
p. 644. - V- > ,' 

. * RICE, J.-^Section 3613 of the Code provides^ thaft, " when 
an order removing the tri<il in a criminal case is made, the 
clerk must make'oUt a transcript of the caption of the grand 
jtiry, the indictment, with the endorsement thereon, and all 
entries relatiBg- thereto, the undertakings or recognizances of 
the defendant, and all the orders and judgments upon the 
same, the order for the removal of the trial, and all- the other 
orders in the cause, — attach his certificate thereto, and for- 
ward it, sealed up,rby a 'special messenger, or 'deliver such 
transcript and cei'tificatc to the clerk of the court of the 
^county to which the trial is ordered to be removed." 

The clerk is a mere ministerial officer, and his duty as such, 
in the cases provided for by the section of the Code above 
quoted, is "clearly prescribed by that section. No court can 
relieve him from the performance of that duty, thus prescribed 
by statute. The rules and practice of the court, established 
by the court itself, may sometimes be made to yield to circura- 

-«tance&,'to promote the ends of justice." Not so as to a 
statute ; it is unbending, requiring implicit obedience, as well 
from the court" as from its suitors and its clerk. The court 

:*|)0*8€ssse9 HO dispensing power as to a statute. — Jackson v. 
'Wiseburn, 5 Wend. R. 136 ; Caldwell v. Mayor, 9 Paige's 

aB. 512. 

), 'It fbllows from what we have above said, that the prisoner 
can obtain no benefit here from the fact, that in the order for 
the removal of the trial, the court directed the clerk to trans- 



JANUARY TERM, 1855. 57 

•Harrall v. The State. 

mit " the original papers, and copies of all orders and entries 
made in said cause" ; for, notwithstanding that direction, it 
still remained the duty of the clerk to transmit such a tran- 
script'ES is required by section 3613 of the Code. 

Whether the order of the Circuit Court of Wilcox, direct- 
ing its clerk to transmit " the original papers, and copies of all 
orders and entries made in said cause", is proper or improper, 
so far as it relates to " the original papers", we need not 
decide; for, conceding it to be improper to that extent, it 
certainly furnishes no ground for the reversal of the judgment 
of the Circuit Court of Dallas. It could not, and did not, 
disable the clerk of the Circuit Court of Wilcox from per- 
forming the duty prescribed to him by section 3613 of the 
Code : that clerk might have sent such a transcript as was 
required by that section, and also '' the original papers." 

It is evident, that there has been no discontinuance of this 
case, unless the omission of the clerk of the Circuit Court of 
Wilcox to perform the duty required of him by section 8613 
of the Code, for two terms after the order was made for the 
removal of the trial, produces a discontinuance, under the 
circumstances shown in tliis record. 

After examining all the provisions of the Code upon the 
subject of removing a trial in a^ criminal case, and many 
authorities upon the subject of discontinuances, our opinion ie, 
that such omission of the clerk does not work a discontinu- 
ance, and that there has been no discontinuance in this case. 
— Wiswall V. Gliddon, 4 Ala. R. 357 ; Calhoun v. The State, 
4 Humph. R. 477 ; The State v. Collins, 8 Dev. R.419; 
Drinkard v. The State, 20 Ala. R. 9. ' ^ 

In Drinkard v. The State, 20 Ala. R. 9, the defendant had 
never been arrested ; the cause was taken from the docket 
by the solicitor, with the permis'sien djf the <jm<r^,aud no process 
issued thereon for more than two years. This court correctly 
held, that the cause was thereby discontinued. But in that 
case, tiie court admitted, that the dofendaitt could not be 
allowed to take advantage of the omiesions of the clerk, a 
mere ministerial oflScer, to perform his duty. It was the active 
interference of the prosecuting attorney with the cause, by the 
permission of the court, in the manner above stated, which 
worked the (^SQpiUiuWdAi;*!^', ii^$l}^thdt c^e, nor any othor 



is f ;• .'.ALABAMA. 'AX 

^ , , I , . ■ . - | ■ I. . . I I . I ^ : I. .. 1 ».r,-. ,1 ,1 t :..».,, . 

Harrall v. The State. • 

ifnown to us, gives any countenance to the proposition for 
which the prisoner contends in this ease, to-wit, that the fail- 
ure to docket the case at the Fall term, 1853, of the Circuit 
Court of Dallas, and the failure to furnish -the clerk -of that 
court with any transcript until after that term, and the failure 
to get a proper transcript to that court until the Fall term. 
1854, amount to a discontinuatice. This proposition is no- 
thing more than the assertion; that the mere neglect of minis- 
terial duty by a ministerial officer, works^a discontinuance of 
a prosecution. We do not understand this assertion to be 
any part of thei law of this State. 

As th€ court to which the trial of a criminal case is re- 
moved, is. authorized by section 3615 of the Code'todk^ct 
the clerk of the court from which it was removed " to certify 
any portion of the recoi'd whi^h he has omitted, or to rectify 
the same",- we think h<xrtiofari is a proper mode of directing 
• and requiring the olerk to certify any and every part of the 
record which he has omitted : and when " the original pa- 
pers"- have been sent to the ^oirrt to which the trial is 
removed; that court may- iMSstor^- them' to the clerk of, the 
court in which the indictment was fouiid. . -- • 

In Ward v. The State, 22 Ala. R. 17, it was correctly de- 
ci^'ed, that it was not necessary that the name of the solicitor 
should be signed to-an indictment. The absence of his name 
is the only obijectioii" made to the indictment in this case ; we 
hold the indictment tq be good.. ^* 

' When the trial of a criminal case is removed from one 
okcuit court to another, section-iSGlo of the Code requires the 
defendant to be tried on- " the cop3r of the Indictment", (Certi- 
fied as .directed- in section 3613,' It could not, therefore, 
possibly, be erroneous to read to -the Jury " the copy of the in- 
dictment''^ so certified.— The- State a^.. ']yjfe,tthews, 9 Porter's 
R. 3*70, and cases fliereiir cited ; Lanier v. Br. Bank, 18 Ala. 
JR,. 626. . The transcript offered tti the jury in this case was 
thus duly cej^tified, and contained a copy of the indictment. 
The objectioh of the prisoner was'generfil, and was made to 
the transcript as a whole.' As part of it was clearly legail, 
to-wit, the copy of the indictment, there wasno error in over- 
ruling the objections as made. — Hrabowski v. Herbert. 4 Ala. 
R. 265 ; Troutman v. Melton, 15 Ala. R. 535>Y::i^^;-^r<4<rf' 



JANUARY TERM, 1855. i» 

.- _ . . ' 

Chambers v. The State. 

'^ .The verdict is sufficient to authorize the judgment of con- 
viction and sentence of confinement in the penitentiary for 
life. — Noles v. The State, 24 Ala. R. 672, and other cases 
cited on the brief of the Attorney General. 

There is no error in the record, and the judgment, of -^e 
Circuit Court of Dallas is affirmed, and the septGnXje'..iiFO- 
nounced by it must be executed. , ' '/ v 



fc*iR» ^ ■ 



CHAMBERS w. THE STATE. 



wj--. - J ' - - » J 

1., If a part of a coDversation is adduced in evidence by the State, as proving 

• *^ttie defendant's declarations or coilfessioris of guilf, he tas the right to Call 
.^'for the whole of what was said'hi'that conversation relatire to th& subject- 
matter in issue. <^ v 

2. Under an indictment against.a negro trader for exhibiting slashes for sale 
without a license, (Paraph. Acts 1849-50, p. 8,) after evidence has been of 
''''•fered'^f a particular act of sale within th^ time covered" by tiie indictment, 
v. evidence of a previous act more than twelvemonths before the finding •of 
l^j^kc indictment is admissible for the State, as 'tending to show that the ^e- 

tj|fendant was engaged iu the business x)f negro-trading. ^ ^ ^^ 

.$» If the defendant was engaged in ihe busine^ of negro-trading, proof of 
'.f* •dne actj in pursuance of such business, within the county in 'which thft'in- 

• dictment was found, is sufficient to support a conviction. 
.•;^..:.. .. ■ . 

^ Appeal from the Circuit Court of Perry. 
. ' iTried before the Hon. Andrew B. Moore. 

•^•The indictnaent in thfs 'case^ which was found at the.F»li 
terra, 1852, charged " that John Chambers, late of said county 
of Perry, on the first day of October^ A. D. 1852, at, to-wit, 
in said county, did unlawfully then and there fail to procure 
license therefor, and did then and there engage in the busi- 
ness of negro-trading without such license, and did then and 
there unlawfully exhibit for sale divers, to-wit, twenty negro 
slaves, contrary to the form of the statute," &c. On the trial, 
" the State introduced and examined a witness, who testified, 
in substance, that in the month of July, 1852, the defendant 
had in his possession, at Woodville in said county, four slaves, 
and then and there told witness that they were for sale, and 



Chambers v. The State. 

offer 3d to sell them to him ; that he (witness) then and there 
bargained witli defendant -^r two of them, and by agreement 
between him and 'defendant the latter was to deliver said 
slaves to witness at his house in Marengo county, and then 
Witness was to exechte liis note to. defendant for the purchase 
money ; that defendant, on the evening of the same day, car- 
ried said slaves to the house of •witness in Marengo county, 
and remained there all night ; and that on the next day wit- 
ness then and there executed his note to defendant for the 
purchase money, and defendant executed to witness a bill of 
sale for said slaves. The defendant then offered to prove by 
said witness, on his eross-examinfttion, that at the very same 
time, and in the same conversation, when defendant told wit- 
ness that the slaves irei?e tor sale, and offered them for sale, 
and when witness bargained for them as aforesaid, he (de- 
fendant) told witness tha»t he was not engaged in the business 
of negro-trading ; which testimony was ^rejected by the court, 
and defendant excepted. Defendant then offered to prove 
tkat Be fhrther saiS to th0 witness' in the same conversation, 
th£^t be lived in Tuskaloosa, and was then (and had been for 
isome years) engaged in keeping a store in that town ; that he 
had owned these negroes for about four years, and had kept 
one of them about his store in Tuskaloosa. ; all which evi- 
denee; on motion of the solicitor, was r.ejected^by the court, 
and thereupon defendant excepted. •<.,•..,••' 

" The State also inti-oduced witnesses, who testified, against 
the defendant's objection, that in March, 1851, 'defendant was 
in and near Wo6dville in said county, in possession of some 
ten or twelve negrjOQs,rand tjien and thei-e offered them for 
j^ale, and did sell two of them ;. biVt the objection was oyer- 
ruied l)y the court, and iljie defendant exeepted. 
.^, ^L^TUe fopegojng, was^iljL ^ubst^nQ^, all the inaterial testi- 
mony in the case ; and' thereupo4i the defendant asked the 
,<i0iirt to (^h^vgp-the jury, that, before they would be author- 
ized, to, ^o'nvict t\kfi defendant, the £acts and- circumstances 
sl^oruld be so convincing, a,s to lead their minds to the conclu- 
jjtQH that the accused cannot be innocent of having engaged 
itt, the business of negro-trading, in P^rry county, within 
twelve months previous to the finding of the indictment. 
This charge the court refused to give, but charged the jury, 



JANtJARY TERM, 1855. &f 

Chambers v. The State. 

that if the defendant Was engaged in the business of negro- 
trading, within the State' of Alabama, and either sold, or of- 
fered for sale, any negroes in the county of Perry, in the 
month of July, 1852, they niust find him guilty ; that they 
might look to the pYoof showing that he offered for sale and 
sold negroes lii said county" in March; 1851, as la circumstance 
tending to show that he was engaged in the business of ne- 
gro-trading in July, 1^52, but that they would not be author- 
ized from that circumstance alone to finlJ him guilty." To 
the refusal to charge as requested, and to the charge given, 
the defendant excepted', •' '• ' ^'^^ 

No errors are- assigned on the record.' ^ "• '* 

-.,•.••• ■ ' -, ■ ■■ / ■- ,- ,: . 'jtec- 

''<^"^Wm. M. BEOOKS,^'for the appellant* * ' •• = v, ;tft j*< 

""^1. The court erred in rejecting th'e'declai'ations of Cham- 
bers : they were a part of the same conversation already 
taught out by the Stdte ;" tHey appertain to the same subject 
matter, were material, and therefore admissible. — Nelson "i^. 
Iverson, 24 Ala. 9 : 1 Green. Bv., pp. 233, 252, 253. '^ 

■^12. These declarations were made at the time Chambers 
had the negroes in possession, and offered them for sale ; 
they accompanied the act, and were a part of the res gesta, 
and therefore admissible. — ^Pitts v. Borroughs, 6 Ala. 733; 1 
-Green. Ev. 108, 109. 

3. The court erred in permitting the State to prove that 
the defendant had negroes in possession and offered to sell 
them iu March, 1851^ This evidence did not legitimately 
tend to show the character of his business in July, 1852, 
when he offered the other negroes for sale. It was not a part 
otf, or in any manner connected with, the aet for which the 
defendant was indicted. . > ^ • . 

4. The court erred in refusing to give the charge asked. — 
The defendant was. not guilty, unless U« had been engaged in 
the business of negro-tradiog in the county of Perry, and, 
while so engaged, sold, or offered for sale, negroes in said 
county. — Pamph. Ai^ts 1849, p. 8. The charge in the indict- 
ment is, that " he did then and there engage in the business 
of negro-trading without a license," &c., " and did then and 
there sell, or offer to sell," &c. The effect of the charge 
asked was, to require the State to prove the allegations of the 



ALABAMA. 



Chambers v. The State. 



indictment. The jury should not have found the defendant 
guilty, unless the facts and circumstances were so convincing 
as to lead their minds to the conclusion that the accused can- 
not be innocent. — State v. Murphy, 6 Ak. 846 ; 3 Green. 
Ev. 29, 3Q. ,. 

5. The charge given is erroneous, not only for the reasons 
above stated, but because it required the jury to convict the 
defendant if they believed he was then engaged, or had at 
any time been engaged, in the business of negro-trading, any 
tohere in the' State of JiUibama, and had either sold, or offered 
to sell, negroes in th^ county of Perry in the month of July, 
1852. The defendant could not be convicted, unless he of- 
fered negroes for sale at the same time when he was engaged 
in the business of negro-trading ; and neither was he guilty 
unless he had been engaged in the business of negro-trading 
witliin the county of Perry within twelve months before in- 
dictment found. The evidence did not authorize a conviction. 
This charge is s^lso erroneous, in stating that the fact of the 
defendant's having in possession and selling negroes in 1851, 
tended to prove that he w^s engaged in the business of negro- 
trading in July, 1852. This .evidence did not legitimately 
tend to prove any sujch thing ; but, at all events, it was the 
exclusive province ^of the jury to determine what the evidence 
proved, or tended to prove. . ^ ■ > 

M. A. Baldwin, Attorney General, contra : 
1. Declarations of a defendant, in a crimiiial case, although 
tfotemporaneous with the crime alleged, cannot iae given in 
evidence by him on ihe trial, unless they form part of the 
res gestee, or are given ill evidence against him. — 1 Bail. 332; 
Stark. (Pal-t I) -4^; Commonwealth v. Hide, Thacker's Crim. 
Cases, 19 ; Commonwealth v. Kent, 6 Mete. 221 ; Scaggs v. 
State, 8 S. & M. 7221 ' * • ' 

• 2. it was proper for the State to prove that in March, 
1851, defendant was in the possession of slaves in the county 
of Perry, which he offered for sale and did sell, as a cirvum- 
stslnce which might, be ta^en into eonsideratibn to show 
•whether or not defendant wa« engaged in the business of ne- 
gro-trading.— *1 Aid. & El. 733 ; 1 Green. Ev. § 110 ; Com- 
(iloliwealth v.; Hopkins, 2 Dana 418 ; Lawson & Swinney v. 
The State, 20 Ala. 65. v^ '-- ^•■^^- >** 



JANUARY TERM, 1855. 63 

Chambers v. The State. 

3. The charge asked was propefly refused, in connection 
with the charge given. It takes a series of acts to make up 
an employment or -engaging in ^ particular business ; and 
many acts, committed outside of the county, may be given in 
evidence, to show the character of the act in the particular 
county.— 2 Dana 41.9, st^ra. 

CHILTON, C. J.' — The State having proved, by an exam- 
ination in chief, that the defendant, in July, 1852, having pos- 
session of four slaves in the couiity of*Perry, told tlie wit- 
ness they were for Sale, and offered to sell them to him, and 
that thereupon a bargain was struck for two of them, which 
the defendant delivered, to said witness in Marengo county, — 
the defendant oSered to prove by the sam€ witness, upon his 
cross-examination, that the defendant said, in the same coe- 
versation, and at the same time he told the witness that the 
slaves were for sale, that he (the defendant) was not engaged 
in the business of negro-trading. This proof the court ex- 
cluded, and the first question presented is, whether the court 
properly rejected it." - - » 

The proof that the defendant told tlie witness he had the 
four negroes for sale, was offered by tlie State as declarations, 
or confessions, tendiilg to establish his guilt ; and the gener- 
al rule is. that the whol© of 'what the prisoner said on the 
subject, at the time of making the confes^on, should be taken 
together. " This -rule," says Professor Greenleaf, "is. the dic- 
tate of reason, as well as humanity.'' " If," says he, "one 
part of a conversation is relied on, as • proof of a confession 
of the crime^ the prisoner has a right to lay before the court 
the whole of wJiat was said in that conversation, not being 
coniined to so much only as is explanatory of the part already 
proved against him, but being permitted to give evidence of 
all that was said upon • that occasion relative to the subject- 
matter in issue." — 1 Green. Ev. § 218, and authorities cited 
in notes. Of course, it is for the jury to say" what weight 
shall be given to the confession :-^they may beiieR-e that- part 
which charges the prisoner, and reject that which tends to 
exculpate him, if they see sufficient grounds for so doing. — 
Rex V. Higgins, 3 C. & P. 603; Rex v. Steptoe,4t6. 397; Res- 
publica V. McCarty, 2 Dall. 86; Bower v. The State, 5 Miss. 364, 



ALABAMA. !#>■ 



Chambers v. The State. 



r 2. There was no error in allowing the State to prove that 
the defendant had slaves and offered to sell them in March, 
1851, as shown by the bill of exceptions. This was a cir- 
cumstance tending to 'show that he was engaged in the busi- 
ness of negro-trading, and is fully warranted by the decision 
of the court in the 2d of Dana, 418 ; see, also, Lawson v. 
The State, 20 Ala. 65. 

Under the provisions of the act of 1849-50, (Pamph. Acts, 
pp. 8 — 11,) any negro trader, broker, or agent, could obtain 
a license from the clerk of any county court, for the sale or 
exhibition for sale of slaves in any part of the State, upon 
paying ten dollars for each slave to be sold or exhibited; but 
if such trader, broker^ or agent engage in such business with- 
out obtaining a license as aforesaid, the fifth section of the 
act above referred to subjects him to an indictment, to be fined 
ai^ si^ra the jury may assess^ 
./•i;A. slave merchant or trader may engage in this business 
without being located ia any particular county. He is often, 
migratory with his slavey, and accorjling to the construction 
of this act contendeil for by the coiiasei for the accused, he 
might make one sale at least in each county in the State with- 
out license, witlioui infringing the law. Such is not our un- 
derstanding of the, meaning, of the Jiegislature. On the 
other hand, we are of opinion, that if he follows this busi- 
ness anywhere in the State without license, he may be in- 
dicted and tried ip. any county in which he sells or exhibits 
his slaves for sale, in pursuance of such business. If trading 
in slaves be his business, he is following that business when 
he makes a sale of them in pursuance of such business ; and 
it makes no difference, if the jury are satisfied that he follows 
the business anywhere in the State at the time of the act 
complained of, whether he made one or a number of sales ia 
pursuance of it in the county in which he is indicted. .^^ 
, What we have said will be sufficient to guide the future 
progress of the cause. 
>*Xet the judgment be reversed, and the cause remanded. - , 



J*A,.-.;>j^-;.;- .,;>,«:. ij^l . i w M,.t£ 



JANUARY TERM, 1855. 



Bryan v. The State. 



BRYAN vs". T^E STATE. 

1. .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 effect, when issue is joined, is to admit every fact which 
the testimony tends to establish. ' , . , 

2. Under an indictment for gaming, (Code, §•3243,) upon.demuvrer tathe evi- 
dence, the defendant may be convicted on proof of his having played a gaijie 
of " ramps" in a store-house where spirituous Kquors were at the time re- 

♦r. 

** Appeal from the Circuit Court. of Pickens. • . i',^ 
Tjie^ before the Hoft,,,GEO.-D. Shortridge. . •„ •« 

■JfissE W.. BbYAN, the appellaatf was indicted at the Tall' 
term, 1854, of the Circuit Court of Pickens, for gaming ; the 
indictmenfcliargidg, in the alternative, all the offences e^Ur 
merated in section 324'Bof the Code. Gn the trial, the de- 
fendant, jaaving introduced no evidence hilnself, demurred to 
the\evidence adduced; in behalf of the State ; and the State 
having joined in the demurrer, the -court held the evidence 
sufficient to support a conviction, and judgment was rendered 
accordingly. The evidence, as set out in the record, was p,s 
follows : * . ;j 

-' " The defendant, \tithin twelve mc^nths before the finding' 
of the indictment, played at a game called '- ramps," in .a store- 
house where spirituous liquors were at the time retailed, in 
the county of t'ickens. The game was played with a set of 
dominoes, consisting .of twenty-eight pieces ; the dominoes a^e 
picQes of bone, numbered fr'qm.one .to six, besides one siw^ 
being blank ; there are seven suits,-— blank, aces, deuces, <fec. y 
an^ each suit is subdivided, — as, ace t)lank, ace deuce, 4^9- 
The game is played by turning the numbered sides of the 
pieces flat on the table ; -the players theji turn over one each, 
and the player turning over the one which has the highest 
number of spots upon it wins the trump; the faces of these 
pieces are then turned down again, and all the pieces are then 
shufl&ed ; each player then draws five pieces,"and one of them 
turns over another piece as a truinp for. the player who won 
the tiTimp ; the player who won the trump may then discard 



66 AL ABAMA. ?<!»^;. 

5rya* V. The Stater 

^one of the five pieces he drew-, and take the trump in lieu of 
it, or he may discard the trump and his hand besides, draw 
six more pieces, and discard one^; any other player mjiy dis- 
card the five pieces he drew, and draw six more and discard 
one. In playing, each player must follow suit, if he can ; and 
if he cannot, he may trump. xVny player ^yho fails to take a 
trick is " ramped." In making the game, the players fix upon 
a numbi3r (usually fifteen) for each. If only two are playing, 
the party who does not tci,kie a tfick is " ramped," by which 
five is added to the fifteen, and five taken from the fififceen of 
the other player ; and so on, until one player or the other 
gets out — that is, reduces the fifteen -with which he started tp 
nothing. The stake is a treat, or cigars, from the party who 
is " ramped." No money was bet by the defendant ; but the 
game is a mixed game of skill ajid chance, and money may be 

• tvon and lost a^t it. There is iio game played with dice sim* 
ilaf to the game of " ramps." In " ramps," the trump iB played 
out 'by the person who won it : but. ti^e winner of the trump 
isneithet obliged to play the.fi^e pieces .he,drew,.i^or draw 
aoLpre : He may throw up fiis jiand altogether, and let the other 
playefs go on ; if he does so, he canno^t be "rapped" on that 
l^imv The only games of cards in which the trump is played 
out' ar^'eucre and whist. ': , '., 

" The State then introduced another witness!, who testified, 
that a game usually played with cards* ctiuld be plg-yed with 
dominoes ; that he had, at this instance of the court and coun- 
sel, on th|s forenoon, in the presence of the jury who tried a 

. similar case to the one at bar, played said game,' called " thir- 
teen-and-the-odd,"" both wij;h cards, and with dominoes, \yith a 
like result, and on the same principle. He 'further testified, 
.that the game of " i-amps" could bg played with cards, by tak- 
into the twenty-eight cards from ace tp §even inclusive of each 
sAit; and, at the' instance of the court and counsel, played 
with another the said garfte of "ramps," firfet with cards, and 

. then with dominoe^, ih the presence of the jury ; antl witness 
testified, that the mode of pro.oedure' and the result obtained, 
were the sam6 in eacli instance ; further, that he liad never 
known or h6ai;d of argame'of cards callted "ramps/' nor a game 
played with dominoes calledf " thirteeii-and-the-odd," except 



JANUARY^ TBRM» 1865. 



Bryaii v. The^tatei 

= . . .. ; ^^-, .. . , : . ,:,■ 

tration ; that if there had been such gam^, 'he thought he- 
would have known or heard of them 5 thatiu playing '"ramps" 
•^tth dominoes for u treat, the game was not ended until each 
player but one had made lus points, and the last one out paid 
thetfeat: but in playing said game for money, when one 
player had made his points, hie took all the stakes, and the 
game ended ; and that he had oft^n seen the game played -folr 
money ; by ' points' tlie witness fneans the score of fifteen, or 
other number determined on by the players, the winning of 
which was necessary to-make any player wi?^ the game, as far' 
as his hand was concerned." 

This being all the evidence^ the court held it sufficient to 
convict the defendailt, send therefore overruled the demurrer. 
#No errets aje assigned on ike record. 

T. Reavis and S. F. Hale, for the appelknt. *JK- , 

.♦M. A. "Baldwin; AWorney.G-eneral, contra. < "'.^\ 

f GOLDTHWAiTE, J.— The only ^estiOn pi«^ented by 
the record arises upon the ^ction of the 'court on the de-" 
murrer to th^ evidence. Tiiej^bJQct of a demurrer to evidence 
is. not, as hassometimesHjeeia shpposed, to SHbstitut6 the judge . 
ip the plac^ of tlie jury as ^ trier of the facts ; for, if tlmt'wfls 
,, the case' it would destroy due ef;t}i^ chipf charactertsties of 
^e common^ law, which sephratod, by a' clear and distinct line, 
ihe duties of the judge gind jury ,-r— giving tff the one the^^etetv 
pjination of the, facts,- and confixiing the- other to questioaS of 
law. The ©ffi(5e of a demurrel' to evidence is precisely the 
♦ga-me, as a denjurrer to the jDjeading * each is intended' foAhe 
purpose of ascertainip^ the kw u^on a pa4'*icular ^ate of the 
facts, but the proceedings' are necessarily different. " In the , 
one. case, the facts are alleged in wri;ting in ihe pleading ;.~iiil 
the other, the evidence is subm'ittedHo the jury, and if it does 
not tend to establish the".i€sue, the objection goes to itsadmis- 
sibility. If admissible, the jury *re ,tlte So]e, judges o^ tlje 
weight to be given it, and they, and -the^ ^Mijah, are to deter- 
mijie how far it conduces to the proof of the facts. If thede* 
fend ant believes that the facts which thfe evidence conduces 
to prove would not be sufficient to maintain the action in a 
civil case, or make put Jh6 ofifenqe ia^ crjjainal prosecutioa, 



m' ALABAMA;. 



Bryan v. The State. 



iie may call upon the court to declare the law upoA the fact&,J 
and this he does by a demurrer to the evidence. If, however/ 
the evidence is loose, uncertain, contradictorj, or circum»^ 
stantial, he cannot call upon the court to draw the inferences.* . 
or to determine how far it goes to establish the fact : these 
are matters for the jury. If he wishes, therefore, m a ease 
of tliat kind, to submit the law to the court, he must admit 
every fact which the testimony tends to prove, and this is the 
effect of the demurrer if issue is joined. This is the whole 
theory of the demurrer to evidence, and hence we held in 
Young v. Fostoi', 7 Porter 420, that the court does not in 
that proceeding stand in the place of a jiiry to render, such 
judgment as the jury ought to have done, l>ut to render suclk 
judgment as the jury. fVom- the evidei(ce c6uld have ren- 
dered ; and this principle is re-aflBrmed in Carson v. The 
. Bank, 4 Ala." 148 j see, also, Du^rhagen v. Unifed States In- 
SHrance Co., 2 S. & R. 185.; Maus v. Montgomery^ llib. 329. 
Applyiag this principle to tl^e case before us, thei»e is no diffi- 
Cfitj^' The recorii shorws that,ev;ery ingredient in the offence 
eharged was clearly established, except the fact as to whether 
the game wa(S played wit^ a^ substitute qr dgyice for carets ;, 
and undei* the rul^ w^ have ad^rted tp, .if tiiore was any 
evideiipe tending to prove that fact, on cfemurrer we are 
bound io consider the fact established. The record discloses, 
that the game, altljough played with dominoes, could as welj. 
be played, with car^s, — 'that tjie dominoes are shuffled, a trump 
is made, and the players must follow suit if tUey can, aud if 
i\Dt, are allowed to trump, — tricks are taken, and* points made. 
Here, then, we have a game which can be played with caries, 
and is played on the same pryaciples which govern some games 
in cards, and in which the same cant phrases and terms &xe 
Hiadeuse-of. We cannot, say with positive . certainty, upon 
this evidence, that the dwminoes Avcre used' by the appellant 
as a devic6 or substitute for cards, but we are very clear that 
the evidence we liavi& state.d tends tef establish that fact, and 
there was fov that reason no ewor in the judgment of the 
C®urt. 
. . Judgment affirmed. . . 

\ "-■'-■ 

. I-.V-V '■ 



JANUARY TERM, 1855. * 

— . — . , 1 -. , — . .. — 

Wiudham et al. v. The State. 

WINDHAM KT Ah.^vs. THE STATE. 

1. ^f he terni " public placeT" as used ih the statute agaiast gaiptng, (CtxJe, 
' I § 3243,) does not iiiclnde-any of the places therein before specifically men- 
tioned, but embricei? all otli^r piijjiic places, whether they are public ^ct* ae, 

4* or become public merely by Ibrce of cu'cuinstances ; and thereforp, if the 
♦ evidence shows that the defendants played cards at a "public liouse,'^ they 
cannot be convicted of*playing at a ''public place.-' 

2. A room in a warehouse for storing cotton on the bank of a navigable rfvet, 
whicli is used ))y the clei^ both for the transaction of business and as a 
sleeping room, is a ''public house " withiii the statu^p against gaming, but 
not a "public place/' 

3. The aame distinction is applicable to the cases of^urdine v. The' State (25 
.' ^la. 60),6herrod v. The State {ib. 78), Roquemore v. The State (19 ib. 628), 

and Clarke V. The State (12 i*. 492). 

4. "When the gaming is at a •' public house," or at any one of the other places 
specifically enumerated in the statute, no mattet what secrecy "may be used, 
nor how fetv the number present, it ie a violation of the statute. 

, Appeal tfrom the Circuit *Court of Pickens. 
* Tried before the Hon. (jIeo. D. Shortridge. 

The appellants were indicted (under section 3243 of the 
Code) for gaming. Oii the trial, as appears from the bill of 
exceptions, " it was proved that the defendants played at a 
game with cards in a room of a house used for storing goods, 
X;c., on the bank of a navigable river in the county, and about 
one hundred yards from the cotton sheds where cotton to be 
Shipped was stored ; that the occupant of said room was the 
clerk of the warehouse,* and made out and distributed cotton 
receipts in said room ; that it was the office of the concern, 
where business with steamboats was settled ; that the playing 
was in the day-time', with the front door locked, and the win- 
dows closed, so that the parties playing could not be gfeen 
from' the outside; that the back door, which opened into an 
alley, was closed and locked, except when the occupant passed 
in and out, at his option, to deliver cotton receipts to negroes 
hauling cotton to the sheds ; that no person, except those 
playing, visited the room during the time, and that the door 
of the adjoining store-room was locked ; that the parties play- 
ing were there by invitation of the occupant of said room, bat 



lie • ALABAMA. ^.-^^ '', \ 

, i-^-^ , 11 , ■/ ^ ::-— ^ — T. . 

Windham et al. v. The State. 

, te did not play ; tha»t he occasionally, 'about that time, invited 
pelTSons there to play catds, and they 5id play ; that lie some- 
times let on^ Dr.^Windljam have the»key of said room, with 

•permission to jjlay there, 'and' they did play. The witness 
stated, however, that these defendants were planters, living 
in the county/ and that thistvas the only game they ever 
plaryed .there ; further, that the "river-, at the time of the play- 
ing afcove-mehtioned; was too low for tiie boats to run, and 
that all gaming ceased there so soon as t(ie river opened and 
the boats commenced" running. ' «' ' < 
* *" Upon this evidence, at the request of the solicitor, the 
^our't charged the jury, tljat if they believed the occupant of 
the sa.id,room was m the habit of inviting his friends there 
l^'pl-fty «ards, ^hd they did-play, and others canle to* him for 
permission to play, cards, wliieh he nevef refused, and- these 
likewise played, tlien the place was a public place^'; to which 
■charge the ■ defqndants excepted 'and Which th'0y now assign 
for error. . 

♦ - ♦ 

S. F. Hale, fqr the -appellants. , - . 

. M. A. Baldwin, Attorney General, contra. 
.\^„ « ■•■ ';,:• ; .. . ►■ ■ ; . 

»., '^C|^ J.-r-gecti(to ^243 of.ihe Code is a substantial tf^n- 
,ecript of the law atgainst. gaming which had been of force at 
Ifa&t from .1842 nntiL the -.Code ffook ^flfect. I'hat section is 
jjj^jjq folio wjing.,wdl'^s: "If.an^ person plays at an/ game With 
♦■cards, or dice,- or with any^deviceK)r substitute for the same, 
i^t any tavern, inn, store-hous^for retailing spirituous liquoi^, 
jiPF house "oi; pl^ce where -^pirituoi^ liquor is I'etailed or given 
^^^yj .or ant/ public house, or highway, or.m any .p'ffier public 
^ace; or in Any outhouse where people resort, such person, 
0^ conviction, must be fined not less than twenty or more 

• than fifty dollars.'"' ".n '"'"'>■• •*'i\(^ 

The, words " public place," as used in this kectrdn^ iflo not 

•laean or .include any of the places therein before specifically 

Unentioned, — that is -'tavern, inn, store-house for retailing 
spirituous liquor, or house or place where spirituous liquor is 

, retailed or given way ; or any public .house, or highway" — 
however public any of these specified places may bte. But the 
words " public place," as therein used, do mean and include 



f^ 



JANUARY TERM, 1855. . / Sll 

Windham et al. v. The'^t&te. 



'^11 '!roM€r"'phipes whicli; are public, whether 'they are puljlie 
per s€\ or become' public merely by fprce of circumstauces.— 
'■ Public hojise*' iu this s^tute is a specific term, and is fol- 
lowed by p. term, of morS comprehensive meaning — that ia, 
" any other jniblic place.'' And therefore, upon a well estab- 
lished principle; it has been decided, that although a person 

-may be. guilty of playing ciirda at a " highway," (*' or public 
house,") such person cannot lawfully be convicted for pljaying- 
•cards at a "public place." — Bush v. The State, 18 Ala. 415. 

In Johnson v. The State, 19 Ala. 527, it was decided, that 
a room in the second* story of a two-story house, which was 
accessible^ only by means of a flight of steps leading up to it 
on the outside, and. which was us^d by one of the proprietors 
of the house as a sleeping apartment,^ (the lower room being 
used by the proprietors for retailing spirituous liquor,) was 
within the prohibition of the statute against gaming .at a 
" store-house for retailing spirituous liquor, or house or place" 
where spirituous liquor is retailed or given away." Believ- 
ing this decision to be correct, we are under its influence im- 
pelled to the conclusion, that if the eyid^ice set forth in the 
bill of exceptions in the present case be true, the room jn ' 
which the plaintitfs in eiTor played was, at the time of the 
playing, a " pubtic house'\ within the meaning of the statute. 
In Clark' v. The St,ate, 12 Ala. 492, Chief Justice Collier 
(a majority of the court concuiTing w|th him) held, that if a 

• lawyer,, or a physician, " invites . a few friends to his office, 
either in the day-time or -night, and close& the door so as to 
exclude all others, that he may spend > a social hour at cards 

; 'tor dice' with these friends, it ceases to bp Orpitblic place, within 
' \'^e meaning, of the statute." The principle of that decision 
••' .ifas followed in Roquemore v. The State^l9 Ala. 528, in Bur- 
dine V. The State, 25 Ala. 60, and in Sherrod v. The State, 
25 Ala. 78. -We do not now feel at liberty to overrule those 
cases. Tl^e charge of the court below is opposed to those 
-; vjdecisions, and is not sustained by Campbell v. The State, 17 
..♦Mv-Ala. 369, which held a shoe-maker's shop a "public place," 
■ mainly on the ground that raany passed into and out of it 
during the playing ; which case we here re-affirm. Nor is it 
-sustained by the case of Mills v. The State, 20 Ala. 86. 

* v,y Sut it must be noticed, that in Clark v. The State, svp-a^ 



72 ALABAMA. 



Maftha (a slave) v. The State. 



Chief Justice Collier conceded, that the OflBce of the lawydr 
or physician was a '^public house" which was not denied by 
any of the judges in tljat cage, aiyi which is not denied or 
questioned in Burdine v. The. Slate, or Sherrod v. The State, 
aboved cited. 

When t\^ playing is in a public house, or in any of the 
other, places specifically enumera*ted in the statute, no matter- 
what secrecy there may be in the playkig. nor how few the 
friends who may be spending their " social hour- at cards or 
dice," they arc violators of the stajtute, and incur its penalty. 
-Bythwood v. The State, 20 Ala. 47. 

-• If the court below had charged the jury, tha*t if they be- 
lieved all the evidence set forth in the bill of exceptions, the 
room in question* wus a " public hftuse", we should have sus- 
tained the charge, fiut- ju charging'- that the room was a 
" pjublic place", the court below erred ; and. therefore we re- 

. feitie its judgment, and remand the cauee. 

v*%■tvi^.■^■|J•> • •«i • ... 



MARTHA (A SLAVE) ^5. THE STAT>B. 

' ' • ■ , ' • k • 

1. In an indictraeat for arsoh under the Code, as at common law, the Qwn^r-. 
ship of , the house burned mnst be alleged, and must be, prov^ as luid. 

•2. If the proof of the OMTiershJp varies from tBe alkgotion, aud a nolle pros. 

« is thereupon entered, this, is no bar .to a subsequent prosecution under a 

, second indictment, in which the ownership is alleged to btjin a-different per- 
son ; and if the second indictment contains several cpunts, in one of w^ich 
the allegation of ownerslup is the same as hi the firgt indictment, and tBe*. 
'* defendant pleads to the whole hidicttocntawfr(?/oMac5i«iti? and discontiinuance, 
the record of the former prosecution does not sustain either plea. -« ■- . 

8. It is the duty of the court to declare thfe Fegal effect of a record which is of- 
fered to Isu^ain the plea of aptr/foia qcquit or discontinuance, and the re- 
cord itself cannot be gainsayefl by parol evidence ; therefore, the court may 
charge the jury that the pl«as' axe not sustained by the proof, when that is 
.4he fact.. .»•».• 

• .*■<'.. , 

Eerob to the Circuit Court of Dallas." 

Tried before the Hon. Nat. Cook. 

The plaintiff in etror was indicted, at the Fall term, 1854," 



JANUARY TERM, 1855. 13 

Martha (a Blave) v. The State. 

for arson. The indictment, contained four counts, of which 
thfe first alleged the house burned to be " a dwelling-house of 
James E. Todd"; the second^ " a dwelling-house, the property 
of James E. Todd, occupied as a dwelling-house at the time 
aforesaid, to-wit, before the finding of this indictment, • by 
Allen W. Coleman"; the third, " a 'dwelling-liouse; the pro- 
perty of James E. Todd, and occupied at said time by Allen 
W. Coleman"; and the fourth, " a dwelling-house of Allen W. 
Coleman." The prisoner pleaded, in short by consent, 1st, not 
guilty ; 2d, autrefois acquit; and 3d, that the prosecution was 
discontinued by the State, at the last term of the Circuit Court 
t)f said county, by dismissing the same. 

On the trial, the prisoner proved, to sustain he^ pleas, that 
at the last Spring term of the Qovirt she had beeof put upon 
her trial on an indictment, found against- her at that term of 
the court, for burning " a. dwelling-house of Allen W.Gole- 
jnan"; " that she pleaded not guilty to that indictment, and a 
jury was thereupon elected, empanneled, and sworn to try 
said indictment ; that all the witnesses in "said cause were 
examined, and the solicitor for the S'tate, then finding that the 
proof showed the house burned, which was alleged in the in- 
dictment to be the property of Allen W. Coleman, belong^ed 
to one James E. Todd, dismissed the prosecution, against the 
consent of the defendant, and obtained leave of the court to 
file another indictment ; and that the jury was then discharged, 
without defendant's consent. The defendant further proved, 
by all the witnesses 6f the State, tliat the acson charged in 
the present indictment was the same identical arson about 
which they were examined at the said Spring term of the 
court ; that the house set on fire was the same about which 
41iey were then and now« examined, and the burning and at- 
tempt to burn the same." Tiie order of dismissal rendered at 
the previous term, which is copied into the bill of exceptions, 
after stating the variance between the allegation and ju'oof 
of ownership, proceeds thus : " The prisoner refused to allow 
an amendment, so as to make the allegation correspond with 
■the proof ; and thereupon the solicitor dismissed this prosecu- 
tion, and moved the court to re-commit the prisoner, to un- 
'8wer a new indictment ; which motion is granted, and the 
prisoner re-committed as aforesaid.". \, oj, •^'/.i -r;' -^*j*^..' -- 



•♦■ 



74 ■ '- ;,^X-H^ALABAMAi>^A. 

Martha (a el,ave) v. The State. 

fv^^-The foregoing being all tKe.^Jvidefice' before the jury, the 

feo'iirt charged them, that the i5leas-of autrefins acquit and dis- 

coritinuauce -were not sustained by the proof; to which 

charge the defendant Excepted", and which she now assigns 

for error. 

.^^Gsp. W. Gayle and Wm., M. Jij[ujRPiiy,^or plaintiff in error. 
M. A. Baldwin, Attorney General, co7i^ra.. -y. 

CHILTON,^ C. J.— ^Th'e counM 'for the prisoner is mig- 
taken, in supposing that the Code does not recfaire the own- 
ership of the house alleged to have been burned' to be averred 
iij indictments for arson. — See forms Nhjs. 52 and 58,. pp. 704-5. 
The Coda makes no change upon th6 cominon law in this 
respect. East (in his Crown Law, p, 10^) says, "It is 
plain a,n indictmen;t for arson must, upon the- face of it,-appear 
to be of the iiouse" i)f another, and It must also, state ^ho^ 
•house, and with tliat th*e proof mnst a^ee." , ' >' 
c. • .In this. case, it appears the proof did riot agreed-upon the 
trial of the' &rst' indictment, \fi1^*theat'erin.ent of ownership, 
and the defendant failing to consent to an amendment ^as pro- 
vided for -by the Code, §§^3529-30-31), a nolk pros.-v^as en- 
iered, and a new indictmei^t was preferred arid found by the 
grand jury, in which the ownership of the-houBCwJis averred 
to be* in another arid, different person from the one' charged to 
•be "the owner in the fir^ indictment. • This appears to conform 
-Substantially to the provisions of the Code above referred to. 

If, however, the withdi-awal of the- cause from the jury, 
i^pon the triul of iho first indictment, could be' regarded as a 
discontinuance of that prosecution, or was equivalent to an 
acquittal of the offence there charged, it is perfectly clear, 
that g, disooritinuance of a prosecution for wilfully and ma- 
liciously burning the house of AlleffW. Coleman, dr an ac- 
quittal upon an indictment for'such offence, would be no bar 
to a subsequent prosecution upon an indictment for arson in 
burninfg4he hqjise of James E.'Todd.' We liavd^ seen,i that 
the indictment must aver Whose kous\9 it was,- and that nd 
conviction can be had unless the proof sustains this averment. 
•2 East's Crown Law 1034. Why is -this? The reason is ob- 
vious : the record of the odnvietiori Would otherwise furnish 



JANUARY TERM, 1855. 75 

Martha (a slave) v. The State. 



no bar to a subsequent indictment charging: the arson to be 
of a dwelling-house the property of another person than the 
one named in the first indictment as the proprietor of the house. 
In other words, it would be to charge^the prisoner with burn- 
ing one house, and to find her guilty of burning another. 

As, tlierefore, the oflfences charged in the two indictments 
are distinct and difterent, the record showing the discoutiuu- 
ance of, or acquittal upott the prosecution of the one, would 
be no bar to a pi-Osecution for the other. 

It may be said, however, .that one count in- the It^t indict- 
ment is^for burning the dwelling-house of Coleman, and that 
this count agrees with the first indictment- So it does ; but 
the pleas go to all the counts, and not merely to this one. The 
prisoner's counsel insisted upon the' former record as a corn- 
plete bar to the sev.eral counts,, one of which charges the 
"house to be the property of James E. Todd ; another charges 
•the burning of a dwelling-house of James B. Todd, occupied 
at the time by Allen W.. Coleman. 

As the record. showed the two indictments to be for differ- 

.€»it' offences, ana* as a record cannot be gainsay ed by pa^ol 
evidence, it was entirely proper for the court to charge the 

• jury that the pleas of autrefois of quit an4 discoi\tinuance were 

'not sustained by 'the proof. This was no invaeion by t^e coiy^t 
of the province of the |ury ; for it was the duty of the pourt 
to declare the legal effect of the jiecoj^ insisted upon by the 

^prisoner as sustaining her pleas. As ^ matter of law arising 
upon the effect of the record, the pleas remained wholly, lyn- 
Bustained. ^ - 

We do not enter taih a doubt as to the correctness of the 

^ruling of the primary court. Its judgment is consequently 
affirmed, and the sentence of death, pronounced by said court 
upon the prisoner, must be carried into execution. 






>76 . :-^^'' ' ALABAM^-i'^'^*^-^ 

• Rodgers v.* The State. 

- . ' 1 . 



•ifi^. 



ROUGERS vs. THE STATE. 



1. l/nderaii i'tldic1;ai^nt for bettiiig, " at a game of,poorat,a pttblic place enu- 
* raerated in settion 3^43 bf the Code," t"he defendant .may be convicted on 

-? •tproof that he played po(4 at a table, »egularly licensed for billiards as a 
license to keep a billiai'd ta,h\e does not autjieiize its use for the game of pool. 

2. An indictment for betting '' at a game of pool at a house where spirituous 
liquors were retailed," or (as alleged in a second count) " at a public place 

^^'^numeratM in section '3248 of the HJode," confornp sabstantially to the 
requisitiouB of^il^g Codes, and iS< therefore sufficient. 

Error from tli'e Oircuit Court ctf Dajlas. 
.■ Tried befor.e tbe Hon. Nat. Cook. 

* The indictment in this cas6, found at thg Fall term, 1854, 
is as follows : ' , / * ' ' ' ' " , ' • 

"The grand jmy of Said' county" charge, |hat before the find- 
ing of this indictment, Alsey'F. ^ftodgers did bet at a. game of 
pool tit a houSe where spirituous liquors werp^ re tailed; and the 
^and juiV of said county further charge, that Alsey F. Rod- 
■^ers did bet at a.gam'e of pOoi" at a. publift place enumerated 
in seclioft 324"^ of the Code, ag^in^ the peace, and dignity of 
the State. of Alabama." ' '^' " 

The defelitiant demurred to the indictment ; but hig" demu*' 
I'er was overruled, and he excepted.^ On the trial, "it was 
proved that ^he table-on which" .defend aht 'flayed and bet had 
been, and wasit the tim6 of bettings regularly" licensed ag a 
billiard table, and was then and there kept and exhibited for 
playing billards and pool ; that "the game of pooh was played . 
on ' a table in all resj^'eets like a billiard taljle, except that* it 
s6;netiraes'had no pockets ; that the players each put in a cer- 
tain sum, and that the first one who, by skill or chance, made 
thirty-one points, neither more nor less, entitled, himself to the 
stake, deducting fiv*e cents for each player which went to the 
exhibitor; that the game was played, indiscriminately, upon 
tables with and without pockets, which are sometimes called 
pool tables, and sometimes billiard tables ; that the game of 
pool is one of the varieties of the game of billiards, played on 
billiard tables with pockets (called " old pool") or without 
pockets (called " Spanish pool"), with the ordinary billiard 



JxVNUARl^ TERM, 1855. 77 

Iloclgers,v. The State. 

tables, cues, and balls. • The- court .charged the jury, that the^ 
defendant would be liable to conviction- for betting at the 
game of pool played on a regularly licensed billiard table f 
to which charge the defendant,exceptedi"*«^i; • . 

These two rulings of the court are now assigned for error. 

Wm. M. MuRPilY, wi.tii wh«m was C. C. Pegijes, for plain- 
tiff in error. ■ , • 
M. A. Baldwin, Attorney Genel-ai, cmtra. 

GOLDTHWAITE, J.— In the present case, it is only ne- 
cessary to consider whether by the laws in force previous to 
the act of 17 February,. 1854,.(Acts 1853-54, p. 30,) a license 
to keep a billiard table conferred upon the party obtaining it 
the right to use the table for the game of pool ; for, if he did 
not acquire such a right, it is obvious that the statute referred ' 
to, whicj; makes the betting at pool at certain places an in-' 
dictable offence, did not iflipair the obligations growing out' 
of his licence t6 keep a billidfd -fable.-.. Wit^^ reference to' a 
correct decision of th'is question,. it is necessary to determine 
whether the fourth clause of section 397 of the Code uses the 
terra "billiard table" merely ^slhe syhonym of "pool" table, 
whicli is found, in the same clause ; for, if the Code makes a- 
distinction between the two tables^ and requires a license tc 
be taken <)ul;'for each, it ig in effect drawing a distiactibn be- 
tween the games of pool and billiards, it being obvious'that 
in such case the Legislature could never have intended that a 
license to keep one table should in effect confer the right of, 
keeping both. Looking"to the werds of the clause to which 
we have referred, we think it clear that the distinction we have 
adverted to- was intended to bodrawn, for otherwise the use of 
the word " pool" would be entirely superfluous. We find that 
the act of 6th of March, l«48,.(Acts 1847-48, p. 32,) ex- 
pressly recognized this distinction. The words are, "for keep- 
ing a billiard .table, fifty dollars ; for keeping a- pool table, 
fifty dollars'^ : and the stibsequcnt acts, although there is a 
alight change of language, evidently mean the same ; and al- 
though one might, by taking out the two licenses, acquire the 
right to keep the same table for both pool and billiards, he 
could not obtain this privil^e without doing so. It follows 



"He- ALABAMA. 

"^ Elliott V. The, State. 



that as the betting in this case was at pool, upon a billiard ta- 
ble, it fell within the provisions of the act of 1854, unless it 
was shown that the table was licensed for pool as. well as bil- 
liards— which the?record does not show., ' . • ''".r 

In relation to the demurrer to the indictment, itfis only'ii^e- 
cessary to say, that it conforms substaiitially to the requisi- 
tions of the Code, and is therefore sufficient. 

Judgment affirmed. 



■*,» 



t.'^ - . * * • ' */*... -.^v y,'. .•V' 



; •' ELLIOT,T>^: THE STATE^•• ' 



a - 

i^- Ah indictment which, up(» if* fac3, charges several' flefendarits for several 
J offences committed hy them independently, of each other, (some of which 
were committed by some of the . defendants at one time, and some by others 
,^*qf the defendants at, a different time,) is fatally defective. 
"2. If an indictment is unobjectionable on its face,' no conviction under it can 
-be had on proof of facts which, if stated in the indictment, would make it 
^jjTatally defective, and ena'ble the defondanta, after fconViction, tp, arrest ot re- 
' verse the judgment.^ ^ ^ •' ■ 

3. Therefore, if A and B are jointly indicted and tried for gaming, and the 
evidence shows that A and others played at one time when B was not pres- 
. ent, and Jhat B and others played at andther ttme^ when A- was not present, 
* tio.(y)aYictiQn can be had against them. 

*' APralL from the Circuit -Court of Limestone. 
Tried bei'ore the ^on. John E. Moore.' 

■ Indictment for gaming against Colley C. Elliott,. tJaVid 
Elliott, Thomas Owen, and Gaines Smith, of whom the first 
two only were taken', and tried jointly on the plea of not 
guilty. It ap^pears from the bill of exceptions, that " the State 
inti'oduced as a witness one* John G-. Russell, who testified, 
that 'he saw the defendant DaVid Elliott play at cards in Au- 
gust, 1853, in a room of a tavern kept at a public watering- 
place in said county ; that the other defendant on trial was 
not engaged m the gatne, and ip fact was^not at the watering- 
pMce at that time. ' Thfe Slate then introduced one William 
Hamilton as a witness,- who testified, tha* he saw the same 



JANUARY TERM, 1855. 79 

Elliott V.' The State. ' 

playing by the? said David Elliott testified to by .the witness 
Russell : tliat on another occasion he and deferida-nt Colley 
C. Elliott, witli one or tw,o other friends, went to the same 
tavern, and called' for a private rooiji for the night, and wer^ 
shown into a diffei'ent- room from the one in whjch the other 
playing took place ;■ that they went, in, and locked the door, 
and engaged irw a ganre ef tjards in whicb the? said Colley C. 
Elliott participated; but on this occasion defendant David El- 
liott wg,s not of the party, and was not at the watering-place 
at that time. The witjji^ss Russell had never seen Cdley C. 
Elliott play at that tavern." The State then introduce'd as a 
witness one Henry M. Stanley,' whose testimony was sub- 
stantially the same as that of the .witness Hamilton, except 
that he stated that said playings were near a month apart* 
The" defendants introduced .no £yid€iice, and this was all on 
the part of the State. '^f*^^\^ ' 

" Upon this evidence, the defendants requested the court toi 
charge the jury, tli^t both defendants -cQuld not be convicted,' 
unless there was prooj" of fl, playing ,at the same time and 
place. X' This charge the court refused )to give, but charged 
the jury, that jf it was proved to their satisfaction that, the 
defendants played, as charged in the indictment, at a tavern, 
though they may not have pla'yed on the same day, nor to- 
gether, aind though, there may have been no community of de- 
sign between them, n.or any connection between tlipir playing, 
yet ea,ch' defendant might be found guilty under the indict-* 
ment ; to Avhich charge, as well as'tojt^e refusal to charge ay 
requested, the defendants excepted." .•■' • • ■■>^' 

'"'■The defendants alsa requested the court to charge, "that if 
the evidence showed that they played in p, room in a tavern- 
house, which they had rented for -the night, under lock and 
key, having called .fof it as d private rbpra,- they could not be 
convipted as fOr playing at 3: tavern"*; which' charge the court 
refused,' and the defend^^ilts excepted to tJie refusal. 

"fFhe^e ruKngsof thec^urt &reii<5w assigned ^or eri'or. 

• ♦,.. .■■ /'•••>-' > .' .. \' . ■■■■.■,, J" 

-.^H'OBiNSO^ k . Je:^ES, Jbr plaintiff in esrbr : » ' ^ 

If the charge pf the court, can b^ sustained, you may Co^\ 
vict'A and B under' the same indictment' for gaming, when 
%be former played in Mobile in January, find th« latter in 



80 ALABAMA. 



Elliott V. The State. 



Huntsville in March ; or jou may convict them for a joint as- 
sault and battery upon C, when A beat him in Mobile in Jan- 
uary, and B ii; Huntsville m March. The statement of the 
position, shows its fallacy ^^1 Ai'chb. Crim. Pl;97, anda. (2). 

• ■ ■ ' 
M. A. Baldwin, Attorney General, contra, cited the follow- 
ing authorities :, 2 Hale's P. C. 174 ; .1 Chitty's Criminal 
Law, pp. 254, 255, 270, 271 ; 5 Bac. Abr. 84 ; 8 Wend. 211; 
a East 46 ; 1 Blackf. 431 ; 7 Serg. & R. 476. - 

RICE, J. — The genei-al nile as to the joinder of defend- 
ants, as laid down in works of good authority, is, that where 
the same evidence, as to tlie -act which Constitutes the crime, 
applies to two or more, they may be jointly indicted. — Oom- 
monwpalth v. Elwell, 2 Met. 190. If the offence arise out of 
the same act, though the parties stand in different relations, 
tliey may be joined. " If several be engaged in the commis- 
sion of the same offence, though each may act a different 
p^rt in the commission of th^t offence, they may be joined. 
1 Waterman's Archb/ Cr. PI, 96 ; Wharton's American Cr. 
Law 110. , ' 

In Wa,terman,'s Archb. Cr. PL, 07, the statute of 14 and 15 
Vict., c. 100, §. 15, is quoted, whi^h enacts, that any number 
of accessories to a felony, or , receivers* of stolen property, 
may be changed with substantive felonies in the same indict- 
ment. In reference to tliat statute, and immediately after; 
quoting it, the following statement is nxade : " But this is the 
only case, in which several persons can.be joined in the same 
indictment, for several offences cpmraijited by them indepen- 
dently of each other." , ♦ " 
,- We have no statute similar to.tliat of 14 and* 15 Vic. abov« 
referred to* We are, tlierefor^, clear in the opinion, that afl 
indictment would be fatally, defective, if upon its face It 
diarged several defepdants for several offences committed by 
them ^independently of each other^ spme of which were com- 
mitted b}' somp of the defendants at one time, and some of 
which were committed by others of the defendants at a dif- 
fei-ent time. " ■< 

Where these facts do not appear upon flie face of the in- 
dictmQUt, b»t (Jo. appear .on tlie trial from the evidence, the 



JANUARY TERM, 1855^ ^ 

Aatoaez v. The State. 

, ^ 1 - l-rA -r- 

defendants are as much entitled to the benefit and pfotec'tien 
of the rules of law above laid down, as if the indictment had 
fairly stated the facts, And tl\us given them an opportunity to 
demur to it, or to move in arrest of judgment. The mere 
form in which an indictment may be drawn by the prosecu- 
ting attorney, ought never to be allowed to evade or destroy 
any substantial legal right of the defendant. However unob- 
jectionable, on its face, an indictment may be, a conviction 
und^r it cannot lawfully result from proof of the indentical 
facts which would, if distinctly stated in it, vitiate the indict- 
ment:, and enable the defendants, even, after conviction, to ar- 
rest or reverse any judgment rendered on it against them. *^ ' 
. The charge of .the court below is not sustained by any of 
the ' eases . cited by the. Attorney -General, and therefore we 
need not express our opinion as to the merits of those cases, 
further than to say tha\. if they, are in conflict with our tiews 
as above expressed, we could' not follow them. , .- '> • 
For the error in the charge of the court below, its'.fut^- 
mdnt is reversed, &,nd thfe ca«se remanded. 



ANTONEZ ,vs. THE STATE. 

1. A sheriff has no power under the Code to admit to bail a pei-son charg^ 
wHth a felony after indictment I'eund, nor can. jiat power be delegated ta 
him by an order of the Circuit Court in the§e words ; "And it appearing to 
the court that the offence with wtiach the prisoner stands charged, namefy; 
murder in the second degree, js bailable; 'jt is ordered that, upon the prisoner 
giving good and sufficient Tjail, according to law, for his appearance at the 
next term of this court, in the sum Of Jl.OQO, then said prisonejf be discharged 
.from custody until the next term of this" coutt." * 

2. Section 3408 of the Ctode, req'ttiring the magistrate to endorse on the warrant 
of commitment the fimoant of bail required, applies only to preliminary pro- 
ceedings before indifttm«iit found, aad*not to commitments after inciictment. 

Appeal from ti)j6 Circuit Court of Baldwin. 
Tried before the Hon. C. W. Rapier. 



si 



* BjAtim. 



Antonez v. The State. 



Percy Walker, for tEe appellant : , .. , /- 

■ 1. The indictment against Paine was for A felony; and,u!l^' 
4er the Code, bail could only bet. taken ^iii open court, or by qi. 
judge in vacation. — Code, pt. iv, ch. 8, tit. 2 : 15 Ala. 703. 

2. The order of the court for the discharge of .the prisoner, 
ttpon his entering iato bond; was a I nullity,' as the court had 
no right to delegate its power. — Butler v. Foster, 14 Ala. 323. 

3. The bond, judgment nisij and scire facias did not corres- 
pond with the indictment : tliey varied 'frotn the charge des- 
<?ribed in the indictment, and" were therefore' wrong. — Howie 
V. The State, 1 Ala. 113 ; Farr v. The State. 6 ib. 705; Faulk 
v. The State, 9 ib. 919. The .judgment nisi describes the 
charge as murder, while the bond describes it as murder in the 
second degree : this, .under ' the authorities supra, is a fatal 
variance. . ;:*'* 

4. The Code requires bojidfl" and recognizances,- in criminal 
oases, to be made payable to the^ State of Alabama. This re- 
(^irement, we think, is imperative ;' "and the bond in this case, 
laoi: being SfT drawn, was of no binding force. 

M, A. Baldwin, Attorney General, contra : 
1. It is not intended to controvert the decisions in the cases 
of Butler v, Foster, 14 Ala. ^23. 4nd Governor v. Jackson, 
15 ib. 703. 

. ^. -A circuit judge is a magistrate (Code, § 3339), and under 
section 3408 of the C'ode.has the right to authorize the sheriff 
to take bsril in all bailable cases. The sheriff is restricted ^o 
cases of nii§demea,nors in taking jDonti, unless endorsed as 
iibove. — See section 3546. , , 

., 3. .The circuit judge, then, by enflorsing on the commitment 
the amount of bail required, authorizes the sheriff to admit to 
bail, This authority does not depend ujDon the fact that it is 
endorsed on the , commituvent. The authority may be placed 
upon the minutes of the court — Gr^-y v. The State, 5 Pike 265. 
4. The commitment aiid the authority of the sheriff are in 
th'e same order, and it is not for the sheriff to question the 
right of the court to make this order. This case is unlike the 
eftse in 14 A-la., supra. In that case, the order of the court 
was .to take a recognizance,' or a sum of money on deposit. 
A recognizance is au obligation of record, entered into before 



JANUARY TERM, 1855. 53 

" '~ Antonez v. The State. 

■ ■■ ' n '. v ^ *^^■ ^ • 7r_, 

a court or officer duly authorized. — 2 Bouv, Law Die. 413. 

The recognizance need not be signed by the conusors : it 
is a judicial act, and cannot be delegated. The order by th^ 
circuit judge in this case is not to take a recognizance, but a 
bond, — not to perform a judicial act, but a ministerial one. 
.J^ bail bond is a specialty, or obligation under seal, by which 
a party becomes bound in a penalty for his appearance at 
court. — ■! Bouv. Law Die. 168. The judge may authorize the 
sheriff to take a bond independent of section 3408 of the Code; 
it' is a power incidental to his office of circuit judge. It is 
not admitted, however, that a sheriff does not possess the 
powev to.take bonds and recognizances ; he certainly had this 
power in the early lystory of that office. — State v. Mills et al., 
2 Dev. 556. " . • " 

, 5.*^ {There ^s. no good reason why section 3408,f!hotil4 be 
limited to initiatory proceedings, or proceedings before in- 
dictment. This construction would be more liberal on the 
side of defendant than that section will warrant. If it had 
been the intention of the framers of the law to limit that sec- 
tion to initiatory procped^gs, it.wauld,not have been left to 
inference. - ** ^' • . V . ,■••• 

6. It is not necessary that the bond should be payable as 
provided in the Code, § 3676.— See §3684 of the Code, and 
Clay's Dig. 480, §27. 

CHILTON^ C. J.— At the: ISfovBAberterm, 1853, of the 
Circuit Court of Baldwin county, one John Paine was indicted, 
under the Code, for killing one William Cameron and one 
John — '■ , whose surname was to the grand jurors unknown. 

Th^ prisoner being in custody, and it appearing to the sat- 
isfaction of the court that the jail of Baldwin county was in- 
sufficient for his safe-keeping, and that the jail of Mobile 
county was the nearest sufficient jail, 4t w:3s ordered by the 
court that the prisoner be delivered by the sheriff of Baldwin 
to the sheriff of Mobile county for safe-keeping in the jail of 
that county until the next term of the Baldwin Circuit Court. 
The entry further proceeds as foirows : "And it appearing to 
the court ihat the offence with whiph the prisoner stands 
charged, namely, murder in the second degree, is bailable, it 
is ordered that, upon the prisoner giving good and suffi.cient 



fe4 AtABAMi. 



^ ^ ^ , . . . Antonez v. The Stale. s » . »^^ . i 

bail, according to law, for his appearance at the next term 6t 
this court, in the sum of one thousand dollars, that then said 
prisoner be discharged from custody until the next terra of 
this court." 

It further appears that on the 10th day of November, 1853,* 
■ jJames W. Lang, the sheriff of Mobile county, to whom the 
^ prisoner had been delivered, received a bail bond from said 
Paine, the prisoner, signed by the appellant, in the penal sum 
of $1,000, conditioned for the prisoner's appearance at the 
next term of the Baldwin Circuit Court, to answer to a charge 
of murder in the second degree. 

Paine failed to appear at the next term, — a judgment nisi 
Was rendered, on which a sci. fa. issued, -and judgment final 
was rendered. Upon the return of the sci. fa., the appellant, 
. by his counsel, appeared, and made divers motions, viz., to 
dismiss the sci. fa., to arrest the judgment nisi, and to quash 
tlie bond. These motions were severally overruled by the 
court, and its rulings are here assigned for error. 
. The question as to ^;he liability of the appellant turns upon 
the legal sufficiency of the bond, and this depends upon the 
power of the sheriff to take it. Before the Code, the sheriff 
^ad no power to admit a party to bail who was charged with 
a felony. — Butler v. Foster, 14 Ala. 323 ; Governor v. Jack- 
son, 15 ib. 703. Has the Code altered the law in this respect? 
We think not. If the offence is a misdemeanor, the sheriff, or 
his deputy, must discharge the defendant upon his giving bail. 
Code, § 3546. Section 3408, reiquiring the committing magis- 
trate to endorse on the warrant of commitment the amount of 
bail required, does not apply to commitments after indictment 
•found, but to commitments upon preliminary proceedings had 
for the arrest of offenders. There is no provision which au- 
thorizes the Circuit Court to delegate to the sheriff the power 
to admit to bail, except upon the trial of a habeas corpus (Code, 
§§ 3736-7-8) ; and without such statutory provision, the power 
does not exist.— Butler v. Fostei:, 14 Ala. 323. Indeed, the 
■Order in this case is not that the sheriff may admit to bail, 
but the prisoner is to be kept until he give bail " according 
• Ifo law." The effect of^he order is mei'ely to determine that 
. ihe offence Is bailable, and to fix the sum. "Whether, upon 
^labeas corpm to be admitted t© bail, tl^^i^^ge trymg the 



JANUARY TERM. 1855. 



Williatas v. The State. 






.same would be bound by such order, is a question we need not 
now discuss, It is clear that, so far as it may be construed 
as a delegation of authority to the sheriff to take bail, to that 
extent it is null and void. 

It-follows, as the sheriff had no power to take the bond, it 
is no more than so much blank paper, and the judgment ren- 
dered upon it is erroneous. It is therefore set aside, and this 
court, proceeding to render the judgment which the court be- 
low should have rendered, orders that said bond be quashed. 

Judgment accordingly. ^^. 






WILLIAMS vs. THE STATE. 



/■> 



-^'•A jddgnqpnt in favor of thfe prosecutrix in a bastardy proceeding, " for tier 
costs in fliis )>ehalf expended," and requiring the defendant to enter into 
bond "conditioned that he pay to the judge of probate fifty dollars on the 
first day of January in each year for the term of ten years,-' &c.. — is mate- 
rially different from a judgment requiring him to enter into bond " condi- 
tioned to pay fifty dollars a year for the period of ten years on the first Mon- 
day in January in each year," &c. '• 
2. If the appeal bond, as set out in the record, describes a judgment materi- 
ally different from that shown by the record to have been rendered in the 
cause, and does iiot show any undertaking for the costs of an appeal from 
the real judgment, it cannot be regarded as security for the costs, and the 
appeal will be dismissed. 

Appeal from the Circuit Court of Fayette^ 
Tried before the Hon. B. W. Huntington. 

It is unnecessary to state the facts of the case as shown by 
the assignments of error and bill of exceptions. The appeal 

yas dismissed by the court ex mero motu. 

.t^ . .>^. 

'.' • E. W. Peck, for the appellant. ' # 

"^ M- A. Baldwin, Attorney General, contra. 

RICE, J. — This is a proceeding in bastardy, and an app^ 
in such case is governed by section 3821 of the Code, which 
is in the following words : •; kw. .4?i?jfcr &«« .'V 






^ViUiams v. The State. 



'■' "Either party may appjeal to the Supreme Court within 
fihirty days after judgment. If the appeal is taken by the 
■^State, the complainant must give security for the costs of the 
appeal if the judgment is affirmed ; and the defendant also, if 
'the appeal is taken by him, must give the same security, to be 
'Approved by the clerk of the Circuit Court, the names of tli^ 
•securities certified with the record to the appellate court^ 
'and execution may issue for the costs of the appeal against 
'them from such court, if the judgment of the Circuit Court 
is affirmed." 

The clerk has certified the names of the sureties for the 
costs of an appeal, and shows how they became such sureties 
by certifying as part of the record the copy of two bonds 
which appear to have been Intended as bonds to secure the 
payment of tlie costs of an appeal "in the cases respectively 
described in them. The first of these- bon^^S'is dated and ap- 
proved on the 12th day of October, 1854, the same day on 
♦•wMqIi the judgmotit of the Circuit Gport was rendered. The 
^second bond is dated and approved on the 23d 'day of Decem- 
ber, 1854 — more than " thir,ty days after judgment." 
; Tlie fir$t%ortd«rocitest tha-t t;he appeal therein mentioned is 
-taken in a case of bastardy x)n the complaint of one Susannah 
' W instead, in which John H. Williams had been convicted in 
;%e Circuit Court of Fayette county on the l2th day of Oc- 
"tbber, 1854, and on conviction had been required by the judge 
•'^f said court " to enter into the bond provided for such cases 
by section 3808 of tl^e Code of Alabama" ; and that he had 
given said bond with, security, duly approved by said judge, 
in Ihe sum of one thousand dollars, payable to the State, and 
*' conditioned to pay fifty dollars a year for the period of ten 
y£ars, on the first Mmiday in January, m ea<;li year, for the 
;snpport and education of said child." This first bond does 
not recite or show that any judgment for costs was rendered 
against said Williams in the case described iij it, arfd-in which 
the appeal it mentions was taken.' 

This bond does not describe the judgment which was actu- 

• ally rendered by the Cnxjuit Oburt in the present case. For 

Jk*hat judgment is a judgment in favor of the State, for the 

it^se of Susannah Winstead, for " her cost in this behalf eX' 

pended", and does not require the said Williams to enter into 



JANUARY TERM, 1855. ^T. 

Williams v, Xhe State. 

^he bond pi-ovided for §ueh ceases by section 3808 of the Code, 
but does- require liini, to" enter into a bond materially diflferent . 
in a legal Sense — to-wit. a bond " conditioned that he pay to 
the judge of probate fifty dollars on thejirst day of January 
in each year, ^or the teiin of ten years, for the maintenance of 
?aid bastard cliild.*' The judgment entry shows that he en- 
tered into the bond which tlie judgment required of him as 
^:ebove de^&rib"ed. 

It is clear, that if this court were to affirm the said judg- 
ment rendered by the Circuit Court, no judgment for costs 
could be rendered here against tlie sureties in the first bond, 
and no execution for the costs of the appeal could issue against 
them from this court ; because the judgment described in that 
bond is materially different in its terms and legal effect from 
the judgment rendered by the Circuit Court in this case. A 
bond conditioned to pay^ fifty dollars on the first Monday of 
Januar}' in each year for ten years, is materially different 
/rom a bond conditioned to pay fifty dollars on the first day- 
of January in ea^h year • for ten years. Sureties who are ^ 
bound in respect' to the- former, are . not thereby bound in 
cespect to the latter. — Curry v. Barclay, 3 Ala. 484"; Tarver 
"v. Nance, bib. 712. 

As the bond first above mentioned (to-wit, the one bearing 
-Sate 12th October, 1§54) does not describe the judgment 
'.rendered by the Circuit Court in this case, or show any un- 
dertaking for the costs of an appeal from that judgment, that 
bond cannot be regarded as security for the costs of an appeal . 
from that judgment ; — and therefore no appeal was taken by 
that -bond. — Carey v. McDougald, 25 Ala. 109. 

The second bond, which is dated and approved 23d Dec. - 
1854, contains a description of the judgment rendered below, 
which would be sufficient to make it a good bond for the costs 
of an appeal from the judgment, if it had been executed and ' 
approved within tliirty days after the" judgment was rendered;, 
but not being executed until after the thirty days, we^ must 
dismiss the appeal M, the CQste of the appellant. . J^'. , 

Let the appeal be so disrfiissed. 



. ■•ii*^*^'-: J^ 



TAvi ALABAMA. '' . ' '' 

* - ,-vr' ' 



Moore v. The Stkte. 



■V. 

•1^ MOORE vs. THE STATE. 

.1. Under an indictment foi; faiHug. and neglecting tp keep iu repaii-a certain. . 
turnpike road, wbicli defendant And another were' authorized" by private act 

• ■ of the Legislature to construct, the court c^rtnot take judicial notice of the 

charter if it is not set out, but must look only to the allegations of the indict- 
ment; and jf it alleges tliat the defendant alone accepted the chartei-, and 
erected- toll gates and took toll by its authority, but does not allege that the 
■ ~'^ charter authorized him to accept alone, or required him^to keep the road in 
«* repair, it is fatally defective" on demurrer.— Code, § 350Jt. , ^ ': 

4 • > • ' '..»; 

>t Appeal from the CirQiiit, Court of Lawrence. 

* "Tried before the Hon. Jobn E. Moore. -i" 

f -. '^ ■'■••■■ > . , . ■ • ■■ ■ 

.V*Thelact»of the case wiW be readily understood from th^ 

fi)pinion. 

•^.-- •;. ■ . ^i.. .^ . .♦ • •• ' 

x> , / B^yiP P- Lewis, for the appellant. 

■'- 'J|. A..^,Baldwin, A'ttorney General,, contra. 

C^&ILT'ON, C. J.— The court below oi^rrnl'e^'a demurrer 

:.-'which was interposed to the indictment, and the questions for» 

■,^our examination arise upon its sufficiency. 

) It avers, in substance, that by an act of the Legislature of ' 

5 -this State, passed on the 3d day of February, 1846, the de- 

," fendant Moore, aridc One David G. Ligon, w-ere authorized to 

j, turnpike a certain road which is described,-— that said Moore 

' ■ accepted the provisions of said act,' and in pursuance of the 

- .entbority thereby conferred, did e^ect gates, and charge toll 

..©f persons passing thereon from the 1st March, 1838, until 

•■the finding of the indictment ; that sajd Moore from the 1st 

; ^iday of March, 4853, until the finding of the indictment, did 

. Vfail and neglect to keep said turnpike road in repair, &c., but 

.■'rsuffe.red .a section of it, which is described in the indictment, 

. to remain. uncleared, out of tepair, *aji(3 not in the eondition 

required by tlteir charter, for the" space of ten days at one 

time, to-wit, between the 1st. of March, 1853, and the finding 

of the indictment, not being hindered by high water, bad 

weather, or other good and sufficient cause, &c. •)• 



• • JANUARY TERM, 1855. ' ' m*^' 

- — ■ ■ — ■ — ■ — — •* 

Moore v. The State. 

It is needless to inquire whether this indictment -could be 
supported, according to the rules of the common l^w, the 
Code having made material changes as to the form required, 
and by this we must be governed. ■ Section 3501 declares, 
'* that the indictment must pontain — -Ist, thje name of this State, 
. the county, court, and term in wliioh it is preferi'cd ; 2d, 
a statement of the facts constituting the offence, in ordinary 
^nd concise language, without prolixity or repetition ; and in 
such a manmr as to enable a person of common understanding to 
'Jcnow lohat ivas intended'\ &c. Does tjic indictment before us 
conform to these requisitions ? '\% to. the first, it is conceded 
tihat it does ; but it .is insisted that it does not as to the 
second, and we are . of this opinion. The charter is not set 
j^Mij and being a private aot, we cannot take judicial notice 
of it. The indictment, then, is not aided by the charter, but 
"must rest upon its own averments. It fails to charge that it 
was made the duty of Moore by the ch9,rter, to keep the road, 
• 4c., in repair. The charter, moreover, was to Moore and 
liigon, and the indictment shows that Moore .alone accepted ; 
but there is no , avermeift that the charter authorized him 
.alone to accept. It is said, he /erected gates by authority of 
4h5 charter, and has taken toll, &c. ; but this is a legal con- 
clusion in the absence of ^the facts, for thccourt might draw 
«, very different conclusion as to -the question of power or 
•'authority had that portion of the charter been set out. Be- 
eides, it does not follow from this that Moore was bound by 
the charter to repair, _ This inust be shown by the avermentSr.' 
5 Bur. 2700.;. 2 Sound- 158'b.^(9)*'j ^ Oh. Cr. L. 571 ; 8 WendS 

,^14. ../■ . V- ' ; .-.' 

Judgment reversed, and cause, remanded. %•'• 






%0 **"*^ ALABAMifT'^'^'i 



Spivey v. The State. 



^.^^^^v..;.^ ».,->•;•■ 



SPIVJjy vs, THE.ST4TK;* 

irThe statute, of this State regpectin^fhe- stealings InTeifeling/ &cf., of gJares 
(Code, § 3130) yyas intended to affdrd aijipler protection and security to 
slave propei'ty than was afforded by the rules of t-he common law. and makes 
J, sfevcral radical changes in thecoipmon law, ^ ■ ■ . ^. 
* 2. When one man, has carried away Jh^ slave of -another", the question wfifetUer 
ot not he is guilty of a felony (under section' 8130 of the Code) depends oy 
the intent with which the act was done ; whenever there is not. clear' and 
'* satisfactory proof of the felonious intfent denounced by the statute, Qoncur- 
' *ring with the act of carrying awfl.y, there is no ground for a, conviction. 
.8'. ^t cftmmoii laws a taking was necessary to constitute larceny ; but oot so. 
I "'.' * as to all the oSeuces created by this statute. 

Mfc At common law, a bailee, who had acquired posse'ssioa of goods wlthQ'\ifrftpy 

i^';;;, intent at the time to steal them, could^ not, during the continuance of tho 

■ t,;,-. bailment, comm.it larceny as to such goods, unless lie broke the bulk or 

« package; but this statute rriakes no such exception: it includes. 'jany person*' 

' who commits either one of the acts denounced by it with the felonious intent 

indicated by its terms ; it embraces the carrying away^'&c^ of "any slave," 

• whether in the actual- possession of th6 o,vv]jer, ,m .of ^ b»Uee> pr w the mltiely 

conslructive possession of the owner. *- .-■'■..'-■■<'' .,: , ■ ■•-,••. i**. 

'5. Conversion, andcaiTyin^ away, are TieitJierBynotiyms, nor cfthyertibletenns: 

a felonious carrying away of a slave necessadly includes A conversion, but 

"■ff & conversion does not n(?cegsarily include a carrying away ; and a mere con- 

•• «f^ version, even with ,a crftninal intent, is nq^.felony, unlpss there is also a car- 

>,, rying away, ,. . •', •,.. ,_ . ^ ,' 

.0. A charge is err6heo\^s. which instructs the jury "^Ijat, if they foun'dlh^rp 

* was a copflict between the special charges givertby Phe court, at tlie defence 

ant'«request, and the main chafge, then the latter raust'iprevaii."' " .. - • 

i 'j^. The defendant's Ueclfirations, made \«hile he was iij possessiop of the slave, 

^.V. "as to the manner, in wlUph hp ttoughtrhim," aue jiot, 'admissible eridei^e 

. ♦■. for him undor*au indictment for stealing the slave '(Code, ^ 3130). .'- .. 
^ '. 6. But any evidence tending'to p/ove that the de/endaut honestly believed that 
•v. he liad the right ie oarrf'axvnj aud'sell the sfavc, is admissible for him ; and 
therefore, wheite defendant had possession of -'the slaVc under a bailment 
0:om the foi'racr owner, (siHce deeejvaed.) the dljclavations of tha bailor* tend- 
ing to show a .sale to defendant', arc competent e<^idence. although referring 
to a pa'per which is not produced and wliWse 'absence is not accounted for. 

Appeal from the City Court- of Mobile. 
'. Tried 'before the Hon. Alex. MtKiNSTRY. 

The indictment in this case was found'at the June term, 1854, 
iftDd eharged, "that William H . Spiv&y inveigled, stole, car- 
iwed or enticed awaj a slave named Joe, tl^e property of Jo- 



■v 



* JANITArY term, 1855. ' "gl 

Spivey v. The State. 

veeph H. Skinner and Geqrge W. Skinner, with the intent to 
corivert said slave to his own use." The defendant pleaded 
iiot guilty, was tried, convicted, and sentenced to the peni- 
tentiary for five years. During the progress of the trial he 
excepted to several rulings of the court, which are set out in 
the following bill of exceptions: 

" On the trial of this cause the State introduced one Jo- 
seph W. Skinjier as a witness, who testified, that he was the 
fson of Henry A. Skinner, deceased, who died on the 4th day 
of October, 1853, in Mobile; that defendant had possession 
• 6f the boy Joe, in the year 11B5^, for scnfie time before the 
death of H. A. Skinner, but witness had no personal knowl- 
edge of the means by which defendant Jiad, acquired the pos- 
'session ; that said boy Joe had always been in the possession 
<>f H. A. Skinner, up to the time of his going into defendant's 
|>ossession ; that the mother of said boy belonged to said H. 
•A. Skinner before the birth of Joe, and was in his possession 
•when Joe was born ; that said Joe belonged to witness and 
»'his brothers George and "William Skinner ; that witness was 
' nineteen years of age, and liis brother George about seven- 
leen, and that William died several years since aa infant ; 
- Ithat the mother of Joe had 'been given, before Joe's birth, to 
'Witness and his said brothers by on^ Ann H5,zzard, who had 
purchased her at sheriff's sale under an execution against said 
A^itness' father, H. A. Skinuei-^ that he (witness) was absent 
'from Mobile, at sea,' from the year 1852 until after the death 
hf his fathpr in October, 1853 ;. that some time in April, 18,64, 
*he saw defendant in Baldwin county, and asked him for the 
])oy Joe ; that defendant tlien told him that .he had sold Joe 
./|n. New Orleans for $600, and that he had purchased the boy 
•'.from witness' father, in April, 1853, iii this manner, viz., that 
.one George Strickland, from Q^eorgia, was in Mobile in 1853, 
;' ^ho was indebted to him (Spivey), and" witness's father \5ras 
■.indebted to said Strickland ; and that the two debts were 
paid by the sale of the boy Joe by witness' father to defend- 
. vant. The witness further testified, that Spivpy told him, iji 
^ the same conversation, that witness' father, at the time of the 
«',i§ale, had said to him, 'I wish you would not dispose of the 
; boy before the fall, as I wish to get him back if I can raise 
:*.the money to pay for him.' These declarations of the defend- 



92 --:'^' ALABAMi?^*^' " • •■ 

Spivey v. The State. , 

ant were brought out by the State in ib examination of the 
witness. 

" Mrs. Skinner, the mother of the last witness, was then in- 
troduced by the State/ and. proved that the mother of the boy 
Job had always remajnefl in the possession of her deceased 
husband, H. A. Skinner; that (,/oc?) had also, until about 
January, 1853, when he was placed by said Skinner in the 
possession ,of the defendant ; that the defendant, who at that 
time was living: in Mobile, applied to Baid Skinner to let him 
have Joe to nurse his (defendant's) children, saying that he 
was too poor to hire a slave, or to buy one-; that thereupon 
she and her said husband permitted defendant to take the boy; 
that it was not stated, at the time, Joe was delivered, how 
long defendant should retain him ; that witness was well ac- 
quainted with the business of her late husband, and that he 
was in the habit of communicating to her all his business 
transactions ; that she removed to Alabama with her said 
husband about twenty years since, and had continued to live 
in Clark county until within the last three years, and in Mo- 
bile since that time ; tliat her husband came through Georgia 
on hie way out, but he. had never been in Georgia since that 
time : that she had never known oi' heard of any such man 
as George Strickland ; that she never knew or heard of his 
being indebted to George Strickland, or having any business 
transactions with any one of tlie name of Strickland, anct 
that she knew nothing of any sale of the boy Joe by her hus- 
band. 

»^ "F. S. Blount Avas then introduced by the State, and tes- 
tified, that several years since he, as an attorney at law, h^d 
recovered three judgments in the Qircuit Cotlrt of Clark 
county, against iJenry A. Skinner, one in favor of Skin- 
ner, one in favor of Charles Skinner, and the third in favor 
of Ann Hazzard for about $400 ; that in 1846 certain negroes 
belonging to said Skinnei* were levied upon under the execu- 
tions in favor of • Skinner and Ann Hazzard, and were 

sold to satisfy -the sanie ; that at said sale he purchased for 
Ann Hazzard a negro woman, but he did not know whether 
she was the mother of Joe or not; that said Ann Hazzard was 
a governess in the family of said H. A. Skinner, and that the 
said judgment in her lavor was for wages due for her services; 



JANUARY TERM, 1855. 9&>^ 

Spi\^y V. The State. 

_ ,. , it 

and that she was related to, or connected with, said Skinner'ffi 
family. The State here closed its case. 

" The defendant then introduced one Couch, \^ho testified, 
that in 1853 he was the clerk of said H. A, Skinner, who 
kept a wood and lumber yard in Mobile, but he had nothing 
to do with said Skinner's business or -estate after his death ; 
and that he knew that Joe was delivered to defendant by 
said Skinner in January, 1853. The defendant then offered 
to prove by the witness, that a short time after said Skinner's 
death, he (defendaut), who had been residing in Baldwin^' 
county for some months, came to Mobile, and asked witness * 
this question, 'Who had charge of the business of Henry A, 
Skinner? that he wished to learn whether the family or rep-*- 
resentatives of the latter desired to reclaim Joe.' The court, 
ruled this to be inadmissible, and excluded it from the jury ) '• 
to which ruling the defendant excepted. 

" The defendant then introduced one Longmaster, who tes- 
tified, that in March or February, 1854, defendant came to 
witness' house in Mobile, and placed the boy Joe there for ' 
sale ; that frequent and open efforts were made by defendant 
to sell the boy ; that several persons called at witness' house, 
to examine the boy with a view to purchasing him ; that the 
boy remained at his house for about ten days, and during that 
time defendant took him in public places and offered him for' 
sale ; that defendant removed the boy from witness' house, 
and placed him at a slave depot on Royal street, kept by one 
Harkey. The defendant then offered to prove by this witness 
declarations made by defendant o'f the manner in which he 
bought him, made at the time he brought the boy to witness' 
house ; but the court ruled these declarations to be inadmis- 
sible, and refused to allow them to go to the jury ; to which 
defendant excepted. 

"The defendant then introduced one N. S. Morton, who 
testified, that in April, 1853,. he was' at H. A. Skinner's place 
of business in Mobile, and then heard Skinner say to defend- 
ant, * Notwithstanding the acknowledgment, or arrangement, 
(witness Aot being oettain which word was used,) in that pa- 
per, (referring to a paper then in the defendant's hands, which 
witness did not read, and the contents of which he did not 
know,) I wish you not to dispose of Joe before the fall, so 



Spivey V. The State. 



tha|; I may redeem him if I can.' The court ruled this state- 
ment of Skinner's to be inadmissible, unless the paper was 
produced, .ot 'its absence acqounted ior ; to which defendant 
excepted. 

" There was other evidence before the jury. There was no 
objection to the n^ain charge given by the court, but the court: 
charged the jury, among other things, that, to make out the 
offence, it was not necessary that there should have been a 
felonious intent on the part of the defendant when he first 
acquired possession of the boy, and that, although the defend- 
ant's possession may have been lawful, yet the offence was 
mffde out, if he subsequently fraudulently and feloniously 
converted the^boy to his own use ; and that, though the de* 
fendant may have held the boy as bailee before he sold him^ 
still he w;ould be guilty, if the jury believed from the testi- 
mony that he had fraudulently- and feloniously converted 
the boy to his own use ; to which charges the defendant ex- 
ce})ted. 

" The defendant asked the court to charge as follows : 

"1. If the jury believe from the evidence that Spivey ac- 
quired possession of the boy from H. A. Skinner under a 
contract of bailment, and that he converted him to his own 
us& while so possessed by him, they could not convict ; which 
charge the court refused, and the defendant excepted. 

*' 2. If the jury believe from the evidence that, at the time 
Spivey first acquired possession of the boy, he intended to 
convert him to bis own use, he could not-be convicted under 
this indictment ; which charge the court refused, and the de- 
fendant excepted. • , • 

"The defendant also asked the couvt.to. giy'e the following 
charges, viz. : If the jury believe from the evidence that 
there was a sale of the boy by H. A. Skinner, to defendant, 
they must acquit ; iihat if the jury have a reasonable doubt, 
whether- there was a sa],e or not, th.ey must acquit ; that thd 
declarations of the prisoner, brought out by the State, must 
be considered by the jury as evidence'ln the cause, and, un- 
less they were shown by proof to be untrue, such declarations 
must be taken by them as showing a claim of title in Spivey; 
that if the jury believe from the testimony that Spivey had a 
plaim of title to the boy at the time he sold him, he could not 



JANUARY TEtlM, 1855. 95 

Spivey v. The State. 

be convicted ; that, to authorize a conviction, the proof must 
be clear and- convincing, and exclude every other supposition 
than that of innocence; which charges the c.ourt gave. There 
was some discussion by the defendant's counsel, while he was 
asking charges, which produced some confusion, and. the court 
then told th<^ jury, thtit, if they found that there 'was a con- 
flict between the. special charges asked by the defendant and . 
given, and the main charge, theii the latter must prevail ; to 
which the defendant excepted." 

All the rulings of the court, above stated, to which excep-, 
tions were saved, are now assigned for error. • • . 

Percy Walker, for the plaintiff in error : . 

1. Though the statute under which the indictment was 
framed contemplates an offence different from larceny, yet, tor* 
apply the statute understandingly to a particular state of facts/"^ 
we must resort to thB rules of law applicable to larceny. The* 
rule is familiar^ that where goods have -been delivered into 
the hands of a bailee for a special purpose, who thereby ac- 
quires a right to the possession, and who, if he converts them 
to his own use while in his possession as bailee, even animo 
furandi, is not guilty of a trespass, he is not guilty of larceny. 
1 Hale's P. C. 504 ; 4 C. & P. 24I ; 1 Moody's C! C. 474 ; 
Russ. & Ry. 92. This rule, it is conceived, is directly appli-' 
cable to the case at bar. The indictment is, in effect, a charge 
of larceny ; it contains the essential element of a charge for 
that crime, viz., tlie fraudulent intent of conversion to the ta- 
ker's use; without siich an ititcnt, th'fs offence designated in 
the statute (Code, § 3130) would not be complete. The cases 
of Mooney v. The State, in 8 Ala., and WilliamB v. The State, 
in 15 Ala., do not mjlitate against this construction. 

The bill of exceptions shows,' that Spivey^s possession, in 
the first place, was that of a bailee. H. A. Skin^er, the party 
holding and exerci^ng ownership- over the slayd, voluntarily • 
delivered hito to the defendant. It is immaterial whether H. 
A. Skinner was the real owner of the slave, or not : as the ^ 
lather and natural guarjilan of his* children, he had the right- 
ful possession and control ; and tlie defendant, in receiving 
the slave from him, acquired a lawful possession. The case is 
toe of bailment. The possession was parted with by the 



m Ai^iAyii.-^ 



ISpivey v. The State. 



bailor without any fraud on the part of the defendant, and 
nothing was afterwards done to determine the privity of con- 
tract ; the subsequent conversion was no trespass, and conse- 
quently no larceny. — 2 Russ. on Crimes, pp. 34-5, 56; 2 Archb. 
Cr. PL (Waterman's ed.) 882, and note ; ib. 387. And though 
the conversion did not take place until after the death of H. 
A. Skinner, still no crime was committed ; the defendant's 
possession was lawful, and would have entitled him to an ac- 
tion for damages done to the slave. 

There is nothing in the record showing any inveiglement or 
enticement. These terms (inveiglement and enticement) appl^' 
to acts operating on the mind of the slave. Mbteover, it is 
submitted, the words "inveigle and entice^' ^PP^y tf> those 
cases only whe^-e the slave is induced or persuaded to leave 
his owner's possession-— that is, that the slave, is in .the actual 
possession of his owner when the attempt to entice or inveigle 
him is made ; and when, as in this case, the possession was 
lawful in the first instance, and continued for a long time with 
the knowledge and consent of the owner, the subsequent 
fraudulent conversion by the bailee cannot be regarded as an 
inveiglement or enticeoient within the statute. These words 
were used by the legislators with reference to the allegiance 
which the slave owes to his master, and must (as before ob- 
served) be restricted in their application to cases where the 
slave is in the actual possession of his owner ; and therefore, 
where A hires a slave to B, or places him in B's possession for 
his use, if 'the latter, without having any fraudulent intent at 
the time he receives the slave, subsequently fraudulently con- 
verts him to his own use, neither one of the offences prohib- 
ited by section 3130 is made out : it is a mere breach of trust. 

To make out either on^e of theoflfencies ci'eated by section 
3130, there must be, not only a felonious Intent, but both a 
taking and a carrying away. The words " steal" and •' car- 
ries away," as^sed in the sCatute, are synonymous with " take" 
and " carry away,'' "which were essential in a common-law in- 
dictment for larceny.. The word " tajke" does not mean the 
act of asportation, but tlfe*^act of layiij^ hold upon an article, 
wiih or without removing the same. — Bouv. Law Die. p. 549. 
If a man takes hold of a package with a felonious intent, but 
does not remove it, the offence is not .complete : there must be 



JANUARY TERM, 1855. ^ 

Spivey v. Tho State. 



jtn actual asportation — a complete severanxje of the possession; 
and this cannot be done without a carrying away. In several 
cases, a slight removal lias been held sufficient, (as removing a 
package from the head to the tail of a wagon ; taking sheets 
from a bed and carrying them to an adjoining room ; taking 
plate from a. trunk, and placing it on the floor, with intent to 
carry it away, &c.,) but it has always been held that there 
must be an actual asportation. " " ' ' - . "^^ 

% J^i The court erred i» excluding from the juVy the decla- 
rations of the delendaht made to the ' witnesse's Couch and 
, -Longma^ter ; tjiey tended to show a claim of property in the 
alav^, an4, having ^een' made before the eonvei^sion, they 
should have been allowed to go to the jury, leaving the bona 
Jides to their consideration. — -See Wisdom's case, 8 For. 511. 

3. Thev6dJii-tf ej^ed, sd^r io' excluding from, the "jury t^ 
iltestimony of Morton, as to the declaration of H. A. Skinner 

to the defendant in April, 1853 : .that declaration formed a 
partofi thfe res ge$ta, -qflid should -have Tdccu received in eri- 
dence. Whether or not the paper referred to by Skinner was 

- produced, or. its absence accounted for, was iniraaterial : the 

' ^ witness was not called to prove the contents, of the paper; the 

inquiry was as to the nature and character of the transaction 

between Skinner and the defendant, and what was said by 

both parties was clearly admissible. This statement of Skin- 

,, . ner tended to elucidate the act of the defendant : it author- 
ized the inference that- there had been a sale of the slave, and 
its withdrawal from the jury .necessarily- worked injustice to 
the defendant; The admissibility of -a declaration depends, 
not merely on its accompanying an act, but on the light which 

'■ it throws on an act which is, in itself, relevant and admissi- 
ble.— Wright V, Doe ex d^nu Tatham, 34 E. C. L. it. 3-13; SB' 
ib. -126; Roscoe's Criminal Evidence, pp. 22 et seq. - ■■' 

4. The argument on the tirst point shows, tliat the main 
charges giveii by the coiirt were erroneous, and that tlie refa* 
sals to give the first and secorfd- charges asked by defendant 
were erroneous. The refusal to give the latter- charge was 

- also erroneous, because such feftisaliyasjuGonsi^ent "with thfr 

^. charges previously given. ' ' '" .*./•■ -' ■*"' 

0. The charge which instructed tier jtia^y,. " tbiCt'if -they 

found there was a conflict between the special charges asked 

•7 



■ '7 . X) ( f.:Jy f ^^ — ^ — ' " 

Spivey v. The State. 

jby defendant and given, and the main cha,rge, then the latter 
must prevail," was erroneous^ it tended to give an undue pre- 
ponderating power to the main charge, and to weaken and neu- 

■ tralize the eifect of the special charges, which the court ought 
not to have given at all unless they \^ere in accordance with 
the law ; it also referred a question of law to the decision of 
the jury, viz., whether or not there was a conflict between 
the main charge and the special charges. — Cothran v. Moore, 
1 Ala. 423; 3 ib. 237; 5 Porter 64 ; 2 Stew. & P. 193; 1 Ala. 
P2>J^. 599; Sib. 607; ib. 737 ; 6 ib. 631 ; 9 Porter 40^ 

4 

'i^. Baldwin, Attorney General, contra : .' 



.7" 



*» 



li To have suffered the different declarations of the pris- 
oner made to witnesses Couch and Longmaster, would have 
been a violation of that rule which prevent8. a party from man- 
ufacturing testimony in his own case. — Oliver v. State, Xli ■ 
Ala. 595. > 

* 1^. The testimony in relation to the }>aper was properly ^|^ 
eluded, the loss of the paper not being proved. 

,3. The bill of exceptions states that there was other testi- 
mony not set, out. The presumptiqiv ii, tlnere was testimony 
upon which an aflirmative charge is based. In this view, the 
charge of the court is correct 5 for there- are cases in which a 
party Gomes into the possession of property,, and a/subsequent 
conversion is felony ; for instance, carriers and bailees, who 
" terminate the contract by some tortious act. — Roscoe 597-|,. 
and note (3); 1 Hale 505; ,2 East 659„682. r.^ 

4. Suppose the owner, Skinner, had requested the prisoner 
' to return the slave, and he had refused : or, suppose defendant 
had taken the boy from the service, lor which he was obtained, 
to-wit, nursing his children, and had placed the boy to rafting 
logs. In both instances the contract of loan would have been 
determined, and the possession thrown upon Skinner, the 
owner (23 Ala. 534, and 18 ih. 348).' A fraudulent conver- 
sion after this would have been a felony. . 

b. The loan was for an indefinite tim4, bilt, by virtue of 
law, terminated on the death of Skinner, th<fe lender, and an 
administration of his estate (see Code, § 1724). And if a 
conversion is made after a completion or termination of the 
contract, it is felony. — Commonwealth v. James, 1 Pick. 385. 



Vf • 



JANUARY TERM, 1855. 99 

/ , Spivey V. The State. 

^— lb,— I- .■■..! ■ ■ ■ , „ ■ „ . ■ ■. ... . --...,1 ■ ■■■,.,.■,■■ ■ 

'■'6. But it has been said by this court, that from the phrase- 
ology of this statute, and the mischief intended to be pre- 
vented," it wets ,the intention of the Legislature to create an 
offence essentially distinct from larceny at the common law. 
The possession of neither party makes any difference, if the 
slave is induced by persuasion to leave his master's service.— 
Mooney v. State, 8 Ala. 333 ; Williams v. State, 15 ib. 263^ 
7- As the charges in chief of tlie court are not set out, it 
does not g,ppear how the prisoner has been injured as to the 
charge that charges in chief must govern where there is con- 
flict between them and special charges. 

RICE, J. — To constitute the offence of larceny, according 
to the common law, there must bo a taking from the possess- 
ion, a carrying away against the will of the owner, and a fe- 
lonious intent to Qonvert the -thing taken to the ofi"ender's 
use.— 3'Chitty's Or. Law 917. /. ' ' ,;. 

According to section 3130 of the Qode-f " any person who iif* 
Teigles, steals, carries, or entices gfwaV any slave, with intent 
^to convert such slave to his own use.Aor the use^ of another, or 
to enable such slave to reach a state, or countiT where he 
would enjoy his fi'eed'om, must, on'*«onvictii&u,' be imprisdned 
in the penitenti§^ry not le^s iMaiT'*fi\'ie or more" thftfl/'twenty 
years." ' ' ;• . - ■. ' -♦. ' . r . • i> . 

This section is, in substance, a transcript of ^ former statute, 
which had been examined and commented on by this court as 
long ago as 1845. — Mooney v. The State, 8 Ala. 328.. 

Experience h^d^demonstratedf that t^ mere a'pplifca'tion of 
, the rules of the cominon law, upon 'the subject of larceny, to 
slave propejty, was totally inefficient to protect this, the most 
valuable, species of persbnal property^owned -^in thi^. (jpuntry. 
To give the most ample protection to this kind' of property, 
it became necessary to make a radical change in the common 
l?b^ ' Slaves, being intelligent creatur^Si, possessing volitibn, 
as "vfell as the power of locomotion, — capable'of being deluded 
by art and persuasion, as well as of being compelled by fear 
or force, — it was proper, in making the eftaftge of the common 
law, to resort to terms suited lo tlie natiire of the property 
intended to be protected. The section above cited was, there- 
fore, intended literally, as it is expressed, to embrace all who 



■^ 



•;.,.' r ; ^^ ■ _ ■■■:.■■ ■. 

'V^f .-.„." • -i.?:..^ ..-.. . -••. ..... 

^ j, ... ,,■ ■ *' < ■ ' /^^. '' V.S .. ' —- » y . ; ■ . ■» . ■. ,^ . ^. .. ' . ' t ' f_ ■ 

' Spivey v. The State, 

should either " inveigle, steal, carry, or entice away any slave", 
with either of the intents therein ex]3ressed. — State v. Miles^ 
2 Nott & McC. 1; State v, Covington, .2 Baile/s Reji. 569 ; 
•State V. Haskell, 33 Maine 127. - ^ 

Where one man has carried away the slave of another, th^ 
question whether he is guilty of a felopy or not, iinder tectioa 
$130 of the Code, depends on" the intent with which it was 
doht. .^ The criminal intent, arid the act denounced by that 
«^tiea,\Bttet bbjh concur., to constitute a felony. If the slave, 
was carried awayl3y the consent of the" owner, or of any per- 
son authorized to give such consent, such carrying away could 
notlbo a felony. So, if " the carrying away W^s without any 
intent to deprive tlie owifer of the subsequeilt use and' benefit 
of the slave or of his value, it would- not amount to a felony. 
S^ if the parrying .away was unpler an hp;iest belief, in the 
mind of the persQti wh6, carried away the slave, or' caused him 
to be carried a'v\'ay, that he had the right to carry hitn away, 
aif to cause it to be doiie, ih^ per^ij acting under such honest 
belief does not thereby become a felon, although he may be 
wholly niista^cu jn such belief. In short, whenever there is 
not clear and satisfactory proof of the felonious or corrupt 
intent denounce^ by the statute; cpncurfing with the carrying 
aWay of the slave, there as iw gtound for a conviction for car- 
rying away the siave. — Oliver v. The State; 17 Ala. 587. 

y^e have selected the words »' carrj- away * in the foregoing 
ectfumente, for the sake <)f perspicuity ; and having begun 
upon them, we shall make no special comment on the other 
words, 'Mnxeigle, stea,]»OF(-ei;ticQ. away." 
'. The following circumstance's ought to be carefully eonsid- 
ered, in construiug the.section_^above cited. At common law, 
a.takmg wa^ essential tcu constitute, larceny. -5^0* so,* as, to 
all the offences created by this section. ' 1" his omfs'sion in the 
statute of la taking is sigtiilioaint,.': At common law, certain 
peFsons (for iastance, bailees), whq. bad* acquired possession of 
goods without any intent at the^time to steal, them, could not 
commit krceny as to such goods during the tinie for which 
i^y .wpre by contract to* keep po5?^ssion.of them, unless they 
brqke the bulk or package. But this section makes no ex- 
peption— it includes ''any persons'^ who may do either of the 
giota denounced by it, with the felonious intent in(licated by 



i^ 



JaNITARY term, 1855, 101 

Spivey r. The State. 



its terms. It embraces the carrying' away of "any slave^, 
whether in the actual possessiQn of the owner, or of a bailee, 
or in the, mere coirstructive possession of the owner. 

The property of the owner, in a slave hir^d or bailed by 
him to another, is recognized by law. There is as much rea- 
son for proteqting it. againsi the feTonious carrying away*df 
the bailee, as against the felonioils carrying away of a third 
person. The law lias established bounds between the inter- 
ests of the bailor and bailed in the thing balled. If the bailee 
transcends these bounds, 'and invades the rights of the bailor 
in the slave, by a carrying away of the slave, with the felonious 
intent expressed in 'the statute, he thereby incurs its penalty. 

Conversion, and carrying away, are not synonyms, nor con- 
vertible terjns. An unauthorized, illegal, and felonious car- 
rying aw;ay of a slave necessarily includes a conversion. But 
a conversion does not necessarily include a carrying away. 
There may be a conversion, without any' carrying, away; and 
in that case, there is no felopy. although the intent of the 
conversion is criminal. 

In determining whether there has been a carrying away, 
the common-law rules in relation to the asportavit in larceny 
ought to govern, — with this qualification, that the bailment, 
dr hiring, itself cannot be regarded as giving the consent of 
the owner to any asportavit of the slave by the bailee, when 
coupled with the felonious intent expressed in the statute, nor 
as authoriziijg any asportavit with «uch intent, — The State v. 
Covington, 2 Bailey's R. 569 ; 4 Black. Com. -231, andnpteX. 

Sound exposition requires effect, to be given to every sig- 
nificant clause, sentence, or word in a statute. The common 
usage of the words at the time of the enactment is the true 
criterion by which to determine their meaning.— -Smith's 
Com. on Stat. 630, 710. 

The letter and spirit of the s.ection in 'question seefm to'us 
to require the construction which we have above indicated. 
Any other construction would render at least some material 
part of the section utterly inoperative. — State v. Miles, 2 N. 
& McC. 1. 

If there seems to be any hardship in this construction, we 
are not answerable for it ; the Legislature has so made the 
law, and we must give it effect. But we confess we see nd* 



tm ALABAMA. 



Spivey v. The State. 



tiling very shocking in punishing any man, who by bailment 

: Ijias been entrusted with the use and possession of a slave, and 

.•who after wa,rds, in disregard of the bailment, carries- him 

. away with the corrupt intent of depriving the own(3r of his 

pro}>erty in him, and of converting him entirely to his own use. 

■.i ^ven under the common law, it" has, been decided, that if a 

jaaan steal Ms own goods from his own bailee, though he has 

/BO intent to charge the bailee, but his intent is to defraud the 

^ingj yet, if the boMee Iifld an interest inpte pos^esswn, and could 

have withheld it from the pvmer. the taking is a larceny (Rex v. 

•Wilkinson, Euss. & Ryan VC.^C. 470)-; and algo, that if a 

part owner of .property ste'als it from tlie person in whose cus- 

• tofiy it ts, and whp is responsible for its safety, he is guilty 
of 4arceyy.f— 7i. 478. Why, then, shoiilc^ it be thought harsh, 

'^T' the*Legis}&,ture to detlar^ that a bailet3 might be convicted 
of felony, if he carried away' a slave with either of the intents 

.. specified iij th« statute now under cqnsfdjeration ? Is not such 

. parrying away as flagitious an inyagion of .tte right of pro- 
perty of the owner, as a taking fromliis actual possession and 

'carrying away with -the same criminal intent? . Although the 
actual injury to theownei* may njot be quite as 'great in the 
one case as in the other, yet' themjuty, in legal contemplation, 
,■^8 equally clear in each case.. And our opinion is, that both 
'these cases are alike embraced by the letter, spirit, atid inten- 
^on of the section of tlie Code in question. 

Under this construction of the statute, the error of that 
part of the main charge of tlie court which is set forth in the 
'^ill of exceptions, consists in its assertion, that the defend- 

>ant was guilty, "if he had fraudulently and. feloniously con- 

• verted the boy to his own use", without referring to the jury 
th^ true question, whether he had. carried away the slave with 
the felonious intent to convert him. to his own use. 

There was no en*or in refusing the charges asked by the 
, defendant. 

• There is error in the charge which informed the jury, that, 
. \f they found that there was a conflict between the special 

• charges asked by the defendant and given, and the main charge, 
'.then the latter must prevail. It was the legal right of the 
defendant to ask charges to be given. It was the duty of the 
court either .tp give oi* j^refuse them, . If they were refused, 



^TANUARY TERM, 1855. ' 103 

-.-y^a. : , 

Spivey v. The State. 

the defendant had the right to take his excerptions, and ob- 
tain a revision of the refusals in this court. If they were 
given, the defendant was thereby deprived of .his right of ex- 
ception and revision. It is manifestly unjust, as well as un- 
latvful, after the defendant's right of exception and revision 
has been taken away by the giving of his charges as asked, 
to tell the jury, that they ought to deny him any benefit from 
those charges " if they found that there was a conflict " between 
them and the main charge. Whether there was such a con- 
flict, was a question exclusively for the court. If such a con- 
flict existed, the court should either have withdrawn that 
portion of the main charge which conflicted with the special 
charge asked, or have refused the special charge. The court 
cannot avoid the decision of any question of this kind, by de- 
volving that task on the jury. — Long v. Rogers,' 17 Ala. 548; 
DeGrafienreid v. Thomas, 14 ib. 681. 

♦ There was no error in rejecting the proof which defendant 
oflered to make by the witnesses Couch and Longmaster. — 
McBride v. Thompson, 8 Ala. 650^ Thompson v. Mawhinney, 
17 ib. 362 ; 17 ib. 109, 216, 314. 

There was eiTor in excluding 'the statement of Skinner 
which the defendant offered to prove by the witness Morton. 
It was a material question, whether the defendant honestly 
believed he had the right to carry away and sell the slave in 
the spring of 1854. If the defendant obtained the slave from 
said Skinner, and honestly believed that Skinner was the real 
owner, and as the real owner had conferred on him the right 
to carry off and sell the slave, and under such belief carried 
away and sold the slave, he is not guilty of any felony. In 
this point of view, it is clear that the statement of Skinner 
above referred to should have been allowed to go to the jury. 
We do not say, that the jury were bound to believe it, nor 
how much weight it was entitled to. We say it was admis- 
sible, and that the failupe of. the defendant to produce the 
paper, or account for its absence, did not render the statement 
of Skinner inadmissible. Such failure goes to the credibility, 
but not to the competency, <3f the testimony. Evidence is 
often competent, although entitled to little or no credit. 

For the several errors of the court below, above pointed 
out, its judgment is reversed, and the cause remanded. 



im "* ALABAMA. 



Brock V. The State. 



BROCK vs. THE STATE. 

f: Wti the Vial of an Indictment for arson, after the State has prored the'bu'm- 

Ting of the house as charged, and offered evidence tending to show that the - 

defendant was the person who set fire to it, evidence showing that another 

house Ijeloaging^ to the prosecutor was subsequently burned, is irrelevant and 

Inadniiasible ;.nori3 it jnade relevant bv being offered in connection with 

proof of defendant's declaration, made after the first but before the second 

- burning, that he was not yet done jvith the prosecutor, especially when the 

•J .declaration is, shown to have been made in a conversation, in which 'tno 

".„ jeftrende was madi,^ to either of the buruinge, bijt the parties were speaking 

of a tfyil SfLndf which d;j fondant had btfo^e the prosecutor as. a justice of the 

' 'peace, afld ill VJicli defM^ant xo'eipjaraed the prosecutor-bid •frea ted bijii'' 

• rascally." V'' . . * ,"*"' " • '* 

2.. -When female *relatives of fli^. defeudaat, whose evidence. is material to his 
d9feuoe,.are examined on hig behal(.at the trial, they cannot be impeached 
by proof that they were pijese^t at»t};e examination Jaefore the Committing 

' 'ifi%i8trat'(*. and w<^e'n'ot then exarainefl as witnesses, although .the* same 

• evidence Vf&s Iheu adduced against him as upon the tl'ial. " •.•*.'•. 

KftROIi to the Ciiteuit Court ef Talladega. 

r.^T^e^d before the Hon. Robert DouGHEFtf 7/ • 

• .f , - . ' ■ > . ' .',.-' . - ^ . 

JbFIpersoj^ -]Sro€K, the -plaintiff in error, was indicted at,*. 
the Matoli terra, 1854, of the Gircirtt Court of Shelby, :R)Ki 
arson ; the charge being, that he '* wilMly set fire to and 
burned an out-house of John A. Griffin." On his application 
the venue was changed to Talladega, where he was- tried at 
the Fall terni, 1854, au,d convicted, and sentenced to three 
years' confinement in the penitentiary. He excepted to sev- 
eral rulings of the court -during the progress of the trial, which 
are thus stated iu the bill of exception^ :*•.'■,• ^y*.-^-!,^. 

" The Static, having proved that, a hofiSe b&Btig^g to one 
GriflBn, which was filled with oats at the time, had been burned 
about midnio'ht on or about ^the 21"st August, 1853, and hav- 
ing introduced evidence tending to show that defendant had 
set fire to it.-^proposed to prove by a witness that another 
house belonging to said Griffin had been burned subsequent 
to the burning of said out-house for which defendant is charged 
in this indictment. To the introduction of this evidence 
defendant objected,^ because it was illegal and irrelevant f^* 



■ J 



^ JANUARY TERM, 1855. lOl"^ 

Brock V. Th6 State: . 

thereupon the State offered this evidence in connection with" 
evidence of a conversation had by this witness with th'er "* 
defendant, between the first and the second burning, in whicli • 
conversation defendant said, that he was not yet done with^* 
G-riffin. The witi^ess stated, that in. this conversation not o. *'. . 
word was said in. reference to the burnings, or eitherof them, ' 
but they were speaking of a civil case which defendant had iu . '• 
a justice's court in April before, and in which defendant co^l'^ * 
plained that Griffin, as justice of -tKe j:feace,^had treated him ■ 
rascally. In this connection the court allowed said, evidence 
iq go to the jury, and th^ defendant excepted. ,. ' .... , 
.^ "The defendant introduced Ms motheV as a witi?,eg^, wh^ 
testified, that. she was. quite sipk on the night when Griffin'i^'^.' ; • 
out-house was burnt, and . did not go to bed or sleep thai* • '. 
night ; that defendant was, at. her.hiouse'on that night, an^*' 
went to bed early, and did. not. leave <the ,hou€e -that nighi^. 
The State then offered to prove by tliis witness, that she wa? ' 
present when defendant was tried before the pommittiug.court 
upon this charge ; that the evidence for" the St^te, lipon that 
trial, was the same that it is upon this ; that she knew the 
same facts at that time that she now deppsed to ; and that she 
iiras not examined as q, \^tness oa said tt^-ial before the conv*-^ • 
mitting court. The defendant objected to thi-s evidence, a?'"* 
J)eing illegal, and irrelevant ; but his objection uli-s overruled,-' 
^nd the evidence admitted, and defendant exce-pted. 

" The defendant introduced another witriess, who was his 
sister,, for the purpose, among other things, of proving that - 
<wi^ A^^en, the State's witj^^ss.^tlidto^d her- before .'defendaiA* 
w&s indicted,, that if he was prosecuted' by defehdtint's brother' 
for stealing bacon, he would swear the burning of Griffin's- 
out-house on defendant ; which^ s^q did^ ^he'proper p^edicatp 
being laid, and said Allen having denied, ofi his orosg-exami; 
nation as a witness tor the State-.on this tyi^l, ever making • 
any such statement. The Statfe jihen proved by* ^is eajue 
witness, on eross-examinatibn, that she was- present when? . 
(lefendant was tried before the committing court ; that, said 
IkUen, who was then a w.itnese, proved 'm sul)s{ance th&^^ijni? 
tilings that he had on this trial ; that she was axarained as' a 
witness at the same time, and did not testify as to said con- 
tradictory statement of Allen. To the making of this proof 



f06 ALJl^K^K. 

Brock V, The State. 



<7l 



by the State, on the ground that it was illegal and irrelevant, 
the defendant objected ; but the court overruled the objection, 
and admitted the evidence, and defendant excepted.'' 
- The rulings of the court are now severally assigned for error. 

'> : - ' ' [ " 

. ' - MoEQAN & Martin, for the plaintiff in error. 
M. A. Baldwin, Attorney General, cqfitrcc, 

CHILTON, C. J. — 1. There Is- fio cDnneetion whatever 
between tlie offence for which the prisoner was charged, and 
the declaration that " he was not done with Griffin yet," 
made afterwards. On the contrarvj the evidence shows that 
no allusion was made to the burning, but t6 judicial proceed- 
ings had before Griffin aS a justice of the peace. Neither is 
there any evidence connecting the prisoner with the subse- 
quent burning. These facts, being discannected, independent 
circumstanced, afforded no fair or reasonable inference tend- 
ing to establish the guilt of the prisoner in respect of the 
charge upon which he was tried. A presumption is a proba- 
hk inference which qur' ceinmotn sens^ enables- ns to draw 
from circumstances usually occurrijig in such cases — an act of 
reasoning, by w^iich the existence of one fact is inferred from 
the-fexigtenCe' of other facts wh^ch'aye ATjpigTt.' In the case 
before us. no presumpti'on of giiilt can be in'dulged as deduci- 
ble from the prisoner's declaration; and from the second 
butning, without first aspimiTig ,tliat' such declaration had 
reference to the first burning, as an iriiplied admission of the 
prisoner's guilty agency in it*, and as evidence of his intention 
to repeat the offence in future. This assumption cannot be 
indulged, especially in the fac'e of the testimony, which 
Wrongly tends to point the declarations to a different matter. 
Thei'c is, therefore, ito known feet, or premise, furnished by 
^feei p»6of o"bjected to, fi-om A^^hicli a* reasonable and fair infer- 
ence can be di^wn . Felice ! w6 itr^ 'of cjpipion, tlie proof wag 
improperly admitted. • ■ ' ' s 

2. We are further pf the opfnion', th^t the- court erred in 
permitting tlfe State to pi'dvo, as* a means of impeaching the 
mother and sister of the prisoner, ^ho were examined as wit- 
nesses on Ms behalf 'that ^e same 'proof was ^v.eii .against 
the prisoner before the committing magistrate that was made 
upon the trial,— that they were botk pr^ent and ww^ not 



JANUARY TERM, 1855. 107 

Brister et al. (slaves) v. The State. 

examined ; it appearing that their testimony, was material to 
his defence. Although related to the prisoner, they were not 
bound, at the hazard of being impeached, to thrust themselves 
as witnesses upon the court. The known delicacy of the sex 
usually makes them slirink from examinations of the kind, and 
no inference prejudicial to their veracity - could be legiti- 
mately indulged from their failing to volunteer as witnesses 
"before the magistrate. A presumption that they had sworn 
falsely, predicated upon the circumstance that they jvere not 
sworn before the examining magistrate, i% too strained qnd 
Yar-fetched to be allowed. ' / ' * . .. * " 

•Let the judgment be reversed, and tho'cause remanded'^ " " ';• 



BRISTER ET AL. (slates) vs. the -STATE. 

V .■■•■•:. ', ' '- '■ '*■■■■• . ■• ^v '■ \ ; ' •■'..'■ 
•^J! Every person jofdictad fera'capkaf offepce;.i^he ie ip .Actual qpntiii^ment, is 

Snti'tled to have a copy of the iaaictment delivered to him atleftst two entire 

days before the day appointed for his trial (Code, § 8576) : delivery to his 

counsel is not sufficient. ,, . , «, • ^ • . 

1 But if the defendant objects to g^ing tcrtrfal, ^''OJi thfe gM)und t^iat a copy 

J of the indictment has not been served oiiJiim or his counsel two entire days 

before the trial'", and it is shown that a copy was delivered to his counsel 

two entire days before the trial, there is no errdr in overruling the objection, 

as the form in which it is made is a waivar of the right to perso.ual«^rviQe . 

if a copy has been delivered to counsel.'., . ■*.• \ *V ^ * -* "^ 

When the venue is changed on the delenflaiiJ;*s app^cation -(Code, § 3615) 

♦ the certified copy of the indictment become.s so i'ar an originai, in the court 

*" to which the trial is removed, that a copy of -it, when delivered to the pris- 

C oner, will be a sufficient compliance 'w:ith the statute, and have the same 

effect that a copy of the actual original could have. ' 

2. If the transcript furnished by the clerk, on change of venue, i^ duly certified 
by him to contain a copy of the caption of the grand jury, the indictment, 

^ with all the endorsements thereon, and all the entries and orders made in 
relation to the cause, including the order for the removal of the trial, as 

V required by the Code (§ 3613), the ^^eftjndants pay b«s tried on such tran- 
script. ► , *.: -^'.■« jV^ik-"'' ■ •♦- ." . sss ■-■ 

3. Where there is a joint ti^l under a Joint fhtKctment eaciS defendant may 
challenge the whole number of jurors to which he wi)uld Ije entitled if tried 
separately. . . 

i. In crixoiaal prosecations, neither party can be permitted, except hj matufil 



BV * ALABAMA. * 



. • Bristey et al. (slaves) v. The State. 

i * • ; ' ". - — ! : :; ■ ■^ 

corfsent, to witHdrawthe trial from the jury He the court by a demurrer to 

the evidence. *» ". ' ■■ , . ^♦^ 

8.j;A witness who is introduced by the State to prove the defendants' confes- 
*sions, and who states, on re-examination, "that he had testified to thesub- 

? stance of all that each of said defendants stated on that occasion, but that 

" they ipay have stated something which he difl not recollect'*/ is competent to 
testify ta the confessions, if in themselves admissible. * . "■' • 

♦J. The general rules stated, which should govern the* court-'in decfdijkg u^mn 
the competency of confessions, and the. jury iu deteraiining their credibility 
and effect after they' hare be^n a(Jmi,tted'«by,-the court. Distinction also 
stated between the spl^ere of the judge and, the sphere of the jury. 

7. As to the construction of tii£ bill of exceptions, which showed two separate 
'otgections by the defendants to the aftmlseion of U»fcir confessions : It was 
held by a majority of the court,, tMat,* the, last of these objection** was so made 
ft?to present the questioH. whQth'ev uroa the evid^iee preyiously set out in 
the bill of exceptions the confessions S'ere admissible, and that the court 
below erred in overruling this objection and admittitig ^the confessions ; 
while Rice, J., dissentift'g, held<that th^re was so ernw s^«wnby»the record 
in overfilling either of «aid.objecti6ns. " >. ^ 

S. Charge of the court on lhe,su(y«ct of cjurfessioiu, ant} its i^efitsal to oharge 
as requested, held correct. . ■ ' ' , ' , ■ 

9. When several defendants 'are joinfty indicfed and tried, if there 18 any evi- 
dence against one, ^fie co'uri may overrule the ihotidrts of his cor^efendaats 
'•to introduce "}iiA as"_ii witness, on the.^roiMid' f^at •theiT*'^ was no evidence 
agafn'st him to autjiftrizc him to be put oii hi5 (Jefenee- , and " to direct and 
allow th(? jury to return a v^dici/)fiacqaittal &%tohini,jop the^ound that 
there was no silfi8ci<jnt eVideUCi t)f bigr gaili t'>ceq<lir5 Mm further t^ defend." 
Code, § 3594. • v *'.,..' / - '%, ' ' 

10. An absttact charge properly refused. ' ' , ' , . ■*_•'?'-. 

11. If the indictment chai*ges thai, A gavt"^'h« Hit)P^*Wow,,4ud tHat 'fe(*an* iJ 
were present uiding and abotting^ while the evidence •sho)vs-tltat B struclc the 
blow, a%d that A an<J. were present aiili&g and aTictting, this is not a mate- 
rial variance, fty -the blew is adjndgetfHif l^w t<J^bJ9 the sti'oke of eyery one 

^of them. • • ' . » . . . • / 

1^. Chjif ges of J,he coart examined ^kd held correct. 

l(3<*If ^Ue vewiict of tjie juiy^s i^'ceived,.and read aloud iu open court, iu the 
absence of-tho/prisont^s {ind the jury are theu told by tli€ court that they 
are discharged;' it is wittfin the power of the court to call tjiem back before 
they have left tlie bar-; and if they arc immediately recalled, upon the dis- 
flbvcry being made that the pfiseuers art* not in- court, and the papers in the 

f (u^use are headed back to tlxpni'. the prisoners are not deprived of their right 
to poll the jury, nor- can they comjtljvin on error of' this action of the court. 

14. The impr(Jper,condvct,()f the juvy^ after tijej^ have retired to make up a 
verdict, is not .a ground for a -motion in arrost-pf'judgraent. 

15. Misconduct of the jury is a ground for a motion for a new trial, but the 
action of the court iu refusing a new trial on that ground is not revisablc on 

• «fFor. 

Error from tlie Oiretiit t'ourt of Bibb. ^^.j. 

Tried before the Hon. Andrew B. Moore. -^Js^ ' 



JA'^^UARY term, 1855. ' 10^ • 

Brister et al. (sla\'es) v. The Sta^tii. 

■ . . ; ^ .T, . , ,_ 

At the Spring term, 185B, of tlie Circuit . Court -of Perry 
an indictment for tlie murder of one John Rickard was found 
against the following named slaves, viz., Wash, GeorgC: Colv. 
lins, Brister, Caesar, Jeif,^ Bijl, John Rodgers, Jerry, Johd*. . 
Wallace, and Archer f the indictment charging that Waslj/ 
struck the mortal blow. At' the same tenn of the court, & 
nolle pros, was entered as to the defendant Jerry ; the defend- 
ants John Wallace, Wash and George were tried, convicted^. ' 
and sentenced to death 5 a^dthe .cause wa8'continu,ed'as tqt . 
the other defendants, on their application. At the next term, 
of the court, on the application of the defendants, the venug * 
was changed to Bibb county, wherq a trial. wag had at-jW 
ensuing Fall term, 1854. Several exceptions were taken' td'-f 
the rufings of .the court during the progress of the tria), which ' " 
are stated in tlip bill of exceptions as IoUqws : . • 

" The defendants, objected to going to trial, on"the ground 
^at a copy of the indictment had not been served on them or 
-^^sir' counsel, two entire day§^ before tfie trial ; but it being 
Shown \o the, coyrt. that a copy of the copy of the indictmenfr 
•3^t out in the trauscript Sent up by .theclei-k .of the' Circuit 
Court of.fhe county of Perry was delivered by, thoitelerk of 
the Circuit Court of Bibb to the counsel of said defendants 
at the last terra of thi?j oourt, the court overruled the objec- 
ttou, and decided that said defendjknts should go k) trial, s^ ' • 
fj^r as the said objection was* concerned : and said ^efendanta^ 
t^iereupon excepted. ^ - ' , ' ■ - * 

*^ " All ef said defendant^ further objected to going to trisjl 
•before the Circuit Qourt of Bibb county,- on the ground thajf 
^e following transcript did ijiO\ show tliat the facts therein set, " 
forth d\d not appear of recoi'd on the? records 0:^ .the Circuit. 
, Court of Perry ; and furflier, because ^the clerk showed by- 
Ms certificate that he was certifying the proceedings in a dif- ' 
lerent case from 4batshow]j in the indictment and in said 
transcript ; and, 3d. that said defendants Qould not be legally 
^ut on theirtrial on said transcript.". The transcript referred 
to is then set out at length in the bill of exceptions, showing 
t]ie orgauization of the gi-and jury by whom the indictment 
was found, and containing a copy of the indictment, with the 
endorsement thereon, and all the orders of the Circuit Ooui'i ,' 
> %f Perry in relation to the cause ;. and appended to it, is the 



X 



_* :^ _ — - 

Brigter et al. (slaves) v. The State. 

certificate of the clerk of that court, that it is "a full, true, 
and perfect transcript of the organization and caption of the 
grand jury, the indictment, with all the endorsements thereon, 
and all entries relating thereto, and the order for the removal 
of the trial, and all other orders in the cause, embracing the 
recognizances of the State's witnesses, and all other proceed- 
ings had by the court aforesaid, in the ease of the State of 
Alabama (plaintiff) against John Wallace, Wash, George, 
Collins,, Caesar, Brister, JefF, Bill, John {alias John Rodgers), 
and Archer {alias Archie), slaves, as defendants ; all of which 
a,ppears to us of record." The bill of exceptions then pro- 
cee'(is : " But. the court O^jerruled their objections, and all the 
"said defendants excepted. ^ 

■^ " In selecting the jury for their trial, after Ihe {State 7) had 
accepted a juroi* named Walker Fittsrand iHe defendants 
Jeff, Caesar and Brister had acknowledged themselves satis- 
fied, and also ax^cepted him as a juror by whom, with others, 
to'jbe tried,, said juror wafe challenged by three others of the 
defendants, viz.. Bill, John, and Archer ; and the court, 
against the objection of said Jeff, Brister, and Caesar, allowed 
said challenge, and rejected Baid juror ; and thereupon said 
Jeff, Brifeter, and Caesar excepted." Eight other jurors, who 
had been accepted by the State and said Jeff, Brister, and 
Caesar, were in like manner rejecte'd by the cpurt on the chal- 
lenge of the other defendants ; and to each rejection the de- 
fendants Jeff, Brister and CajsaT excepted. Six other jurors, 
who had been accepted by .the defendants Bill, Archer, and 
John, were, challenged by the other defendants, and set aside 
by the court.; and • to- ^ch rejection tjie ttipee first-named de- 
fendants excepted. •* ■ ■'''- ^ .,' "^ 

'" On th^ trial of tlie cause, the following facts appeared in 
evidence :*,That the body.of Jolin Rickard' was found interred 
in the bank of a ditch, in Perry county about the 23d of Feb- 
ruary, 1853 -; and on exs^minatioh of it, it was found that two 
wounds had been inflicted On 'the side of his head, which had 
fractured his skull, and produced his death ; that he disap- 
peared ;about the 12th Of. January, 1858, and was not after- 
wards seen until his body was discovered, as above stated ; 
that the deceased was a ditcher by trade, and at the time of 
his death was engaged in cutting ia ditch on the plantation of 



t« 



i;-v^-4.5 



.; .,\i,.x ■ , ■ ' . 

* "■ Brister et al. (slaves) V. The State. 

^ ^. _ . ■ - ■ — > ^ _ ■ , • 

ifr. S. F. Pool in Perry county, about twenty feet in width j;,^ ." ^ ,. 

JAi&t he had thirteen negro men (slaves) in his employment aa*' " :• 
a ditcher, who worked under him in ditching, among whom *... , 

were the prisoners and three others, viz., John Wallace, Wash-^ . '^ • 
and George, who had heretofore been tried, convicted, an^; 
ipxecuted for the murder of deceased ; that the deceased and ■ ,•'• 
'said thirteen slaves lived on the plantation aforesaid, and to^ . ./ ■ 
gether occupied a cabin thereon, about sixteen feet square, m\ ^' . .^ 
A^hich they slept at night, and in the centre of which the fires-' ..;' • 
were made : that the deceased was the only white person that*,\. .^ 
staid with or where said slaves were ; tliat some time after hgr V '* 
disappeared, suspicions were aroused afnongst the neighbors-; . 
that he had been killed by said slaves, who still continued t^*'- \ 
work together on the ditch, which deceased was cutting whetf* *• •. " 

, feist seen, under the direction of John Wallace, who was thcr --^ . " 
foreman of the deceased ; that by a previous understanding. ■'? * / 
some sixteen or seventeen of the neighbors, some of whoffl. . 
^re armed with double-barreled guns.'others of them havinif, . • 
iiegro whips commonly used by overseers, and others with ' ' 

sticks, went, about the 23d February, 1^53, to the plg,ce. 
where said slaves were staying oli said Pool's plant^tioa | " 
that one of the company also carried along a pack of negr6-. 
dogs, which were known to be such to air the prisoners, Jefff 
Caesar, Brister, And" John Rodgers ; that at th,e cabin, where 
said Rickard had staid, they found one of the boys who was* -. " • ** 
in the employment of Rickard, and that he was placed iri^ ' . 
eharge of the compapy ; that others of .the compaiiy wetffc. ■ 

• down to the ditch, about two hundred and fifty yards from the' 
cabin, where said slaves were at work, and, after getting them * V ' , 

, all together, took them in Custody, the prisoners being inic , -.^ 
eluded in the number- taken ; that one or more of said com- 
pany took each one of said slaves in charge, and in this way "... 
.they were all marched up to or hear said cabin ; that Thos.; • • 
Phillips, one of the company, carried the boy Csesar to the* ' "• • 
cabin, and ofl the way, as said Phillips testified on the trialv ..' '. ' 
he discovered that Caesar was much alai-med, so much so that 
■ he trembled ; that Phillips told him not to be alarmed, — that 
all they had come here for was, to find what had become oi-. ^, ; . 
old man Rickard ; that after the slaves were assembled nea|^ * • 
Baid cabin, some of them were tied, and tiie company thea|l .' * .' ' 






112 • .**: ALABAMA, •'■^r. 



Bi'istet et al. (slaves) v. The State. 



-v^ 



••. -"^^arated them a short , distance from each other, for the pur* 
^bse^f examining ttiem^j— the place, howevey, t)eing open, so 
tfcat any one of them might see what was "being done to the 

• ; , others, ajid ^the^'- not being so far separated but that they could 

he%r ahjj^»43loFS tHal might be inflicted on, any of them in 
whipping ;■ that l3efore they, were separated the last time, near 
. . ' the cabin, some one of the company stated in their hearing 
•*. that .tliey had come, to find out what had" become of the de- 
ceased ; that Pliillips again took the boy .Caesar in charge, to 

• examine him; and that he denied all knowledge of the de- 
*iP ceased being killed. One of the witnesses, a slave who was 

,a,witnesson the trial, testified, that according to his best 
. vlniiffecdllection, one '6f the company commenced whipping Bill, 

• iD«yiSw of the prisoners, Jeff; Brister» Cae§ar and John Rodg- 
era, teFore any^ confessions were made by any of said slaves 
except a boy by the name of , Ned ; but another witness, a 
white person who was one of -tjie company,' testified, that ke 

• , did not recollect whether the cb|lfes§ions wore made before or 

after the ^mmencement of' the whipping of eaid slaves. — 

There was ^ome Cbnfliet in tlie testimony, as to whether the 

' coyttfessions were made befo^-e oc after fhe boy.^ feill Stokely 

' (one of the accused)* was whipped. A witness for the State, 

one J. F- Pool, »was then introduced, anjil testified, that he 

• wa^- one of sjiidr fscnupany that.\oak up' ^aid . slavfes ; ;. that 
soon after said slaves. wftre separated near said cabin, and 
w-ere being examined, 'it was auuounced feo -that said slaves 

. #Qcluding said Bdster, Jeff, Cee^r, and John Rodgers) could 
■ "hfrar it, that the boy Ned confessed ; that said Pool then 
' went to. Caesey, and.a.sl^ed him, what part he had taken in the 
^ UXufSfer: , Cffisay then, bj lijs txnmsel, .olijected to his confes- 
. . s\on^, mafle in answer- 19 ?ar4*<ii\eetion, bein^ received in evi- 
..* dei>ce:.bufr tile aourt ov^TuWd the said -objection, and al- 
lo\yed sald^ ^loufeasions to^lJe received, jp,nd s^id defendant 
'.' * CsBsa;* excepted.' iBaid^popt then tpstifre^, tVat in answer to 
said question,, Ca3garc(yifesftcd that , a plot had been men- 
tioned to, him, by J^hn^^^-aJi^Q. to kill the deceased, and that 
h€"h^d ass6nted-<o it,-:*-.ttaf he. was in- tile house when the de- 
ceased was Ivilled, lAit was .asleep and -had no hand in the kill- 

* ing, — and that after deceased wacj killed he had assisted in 
• Gonveying him to the grave and burying him. To these cou- 



v , . '■•...• .. • . . /* . » 



/ JANUARY TERM, 1855. 113 

Blister et ^1. (slaves) V. TUe State. * * • ^ 

■ fessioiis, thus obtained, said defendant Csegar objected, ana 
* moved tiie court to exclude the same from the jury ; but iXie 
pourt overruled the objection, and allowed them to go in eid- ." 
-dence to the jury ; and defendant Cassar excepted." ^.,_ 

'' ' Said Pool further testilied, that he asked each one of the ' 
•'•jOther defendants separately the same question, viz., "What part 
did you take in the murder of the deceased ?"-^that Brister 
Qonfessed " that John Wallace told him there was a plot to 
kill the deceased,^ — that he (Brister) assented to it, — that he 
4 was in the house when deceased was killed, but was asleep, 
and had no hand in the killing, — ^nd that he had assisted in 
digging the grave ^'or deceatscd "' ; that Jeti' confessed, in an-, 
.|wer to said question, ".that John Wallace had told him ther^; ' 
Was a plot to kill the deceased, — that he assented to it, — that 
lie was in the house when deceased was killed, but was asleep, 
^iid had no hand in the killing,. — and that he helped to dig 
the grave" ; that John Kodgers confessed " that John Wal- 
lace had told hj.m there was a plot to kill the ^ceased, and 
that he, had assented to it, — that he was in thejttouse when 
deceased was killed, but was asleep, and had no handvin'the 
killing, — and. that he went with those who carried the de- 
ceased to the grave, but did nothing else." Blister, Jeff, anii^ 
John Rodgers each made the same objections to the admission 
of their coniessions that Caesar had jnade* as above stated, '-^ 

und excepted to the ruling of the court in admitting them j 
the objections and exceptions of each one being expressed in the 
same language used in the case of Gassar in the lagt paragraph. 
"On cross-examination by defendants Brister, .Cassar, Je|f, 

■ and John Rodgers, said Pool stated, that in stating the con- 
' fessions of said defendants he did not pretend to give their 

■ language, or that vof any one of them — that he used his own 
language in testifying, and gave his best recollection of the 
Substance of the language used by them ; and thereupon said 
defendants again severally moved the court to exclude each 
of their confessions above mentioned from the jury, but the 
court overruled the several objections, and the defendants 
severally excepted. Said Pool, on cross-examination, further 
deposed, that in testifying to the confessions of said Brister, 
Csesar, Jeff, and John, he stated the substance of all that he 

. recollected each of said defendants said, according to his best 

8 t 



« 



'114 ALABAMA. • ^ 

• . . . . — (ji ft 

Brieter et al. (slave?!) V. The State. 

. <iv — -5. 

K recollection, but that they may have said more, which he does 
not recollect ; and thereupon said defendants again severally 

t moved to exclude their said several confessions, so deposed to 
by said Pool, but the court severally overruled their motions, 
and defendants severally excepted. On re-examination said 

* . Pool testified, that he had testified to the substance of all that 
■ . each of said defendants stated on that occasion, but that they 

^ . may have stated something he did not recollect ; that said 

Brister, Caasar, JefT, and John Rodgers all Said, when they 

• J0 made said confessions, that they had nothing to do _with kill- ' 
. * ** . ing said deceased, and that he was killed by George an4 

jkWash ; that Jeff further said, he did not know when the de- 
, ' ceased was killed ; and that John Rodgers said he did not 
assist in killing him. 
* i< There was evidence that, when said defendants were ta- 

* " kfeQ up, and aftei* said confessions were made, defendants were 

required by the persons who Jiad taken them up to point out 

" . the grave o^ deceased ; and that the peirsons having them in 

charge made them turn their backs to the ditch,' and took one 

• at a time, and made each one put a mark on the place which 
each one severally pointed out as the place of the grave. A 
witness (Cunningham) testified, that on the morning after the 

• „ day of the disappearance of the deceased, he went to the 
/' ditch where the negroes who had been in charge of the de- 
ceased were at work on the ditch, and found all the thirteen 
slaves which the deceased had had at work with him, except 
Archer, (including the prisoners,! and then asked the slaves 
present where Mr. Ri'ckard was, (addircssilig the crowd, and 
no one in particular) ; that they hesitated in giving an an- 

' ewer, and looked ai, each other, and some one of them tol^ 
witness to ask John Wallace "where he was, — they supposed 
he could tell -where he waia. J'^ was showh, -also, that John 
Wallace was Rickard's foreman, and always had charge and 

* control of said, slaves in the absence of deceased. Said Cim- 
ningham further testified, that he 'did ask John Wallace, and 

.. he said that the deceased had gone to" New Orleans. There 

was no evidence introduced to shotv that Wash struck th§ 

. blow, or blows, that killed the deceased ; and there was no 

, testimony to show that Wash and G'eorge werp '.parties to the 



JANUARY TERM, 1855. 115 

■ — ■ ' — — — — — — — — — — -^p 

BrisU-r et al. (slaves) v. The State. ^. 

: . 1^^ 

" The testimony in behalf of the State being; closed, and be- 
fore any testimony was introduced by the defendants, the foL- 
lowing defendants, to- wit, Archer, Bill, and Jeif,- offered to 
demur severally to the evidence introduce -by the State 
against them severally ; and the court, upon the ground that 
^he court was not bound to take the i-espousibility of settling 
and passing upon the testimony, but that the jury should pass 
on the case, refused to allow said defendants to demur to the 
said evidence, and to this ruling of, the court they severally 
excepted. The said defendants then severally insisted upon 
the court passing on their said demurrer to the evidence after 
all the testimony on both sides was closed ; aiid the court 
again declined to dispose of said demutrers, on the ground 
that the jury should, in all cases, pass upon the -testimony, 
and that the court, in such a case as this, was 'not bound to 
do so ; and .to this ruling of the court said defendants Arch6t,. 
Bill, and Jeff severally excepted. * 

; " The defendants Brister, Caesar, Jeff, and John then pro- 
posed to introduce as a witness their co-defendant Archer, on 
the ground that there was no evidence against him to author- 
ize him to be put upon his defence, — the only evidence against 
him being that he was on the place when the deceased was 
killed, and was seen at the cabin where the deceased was 
killed, on the morning after the night on which the killing 
took place, about daylight, and was one of the slaves at work 
with the deceased at the ditch for some days previous to the 
killing ; and on the day the body was found, the said defend- 
ant Archer pointed out the grave, saying, that the place which 
he pointed out was where the other negroes told him they 
had buried the old man ; ^nd saying at the same time, that he 
had no knowledge of the killing, and had no hand or paf t in 
it. But the court overruled thismotion, and said Caesar, 
Brister, Jeff, and John Rodgers severally excepted. These 
defendants then moved the court (to) direct and allow the 
jury to return a verdict of acquittal as to tSheir co-defendant 
Archer, on the ground that there was no sufficient evidence 
•of his guilt to require him further to defend ; which motion 
the court refused, and said defendants (Caesar, Brister, Jeff, 
and John Rodgers) excepted. 
" The defendants requested HjAj^ixft to charge the jury — 



IMp -'• - ALABAMA. ' 

S— — . ■ ' * ' -^ ■ — . -■ 

Brister et al. (slaves) v. The State. 

<> S i> * < ' * — " — ~ ■ -■ ' 

**•**. 1. That, if they believed the slav-es John "Wallace, George, 
and Wash killed the deceased, and that the accused worked 
with them from that time until they were taken up, and that 
tfeere were others of said slaves who tad not been charged 
with the murder of the deceased, and who knew where his 
grave was and pointed it out, and who also worked with the 
accused, — that these facts might, account far the accused know- 
ing where the grave was, because they might have been told 
where it was ; which charge the court refused, and said Caesar, 
Brister, Jeff, and John Rodgers severally excepted. 

'' 2. That, if <the jury cannot determine, beyond a reason- 
4ible doubt, that the confessions made by Brister, Caesar, JeflF, 
and John Rodgers to Mr. Fool were made before Bill (one of 
the defendants) was whipped, — then they must exclude their 
"confessions from their consideration entirely ; which charge 
the court refused, and said Caesar, Brister, Jeff, and John 
Rodgers severally excepted. The court, after refusing said 
charge, stated to the jury, that they might look to any other 
facts in the case to solve this doubt. 

" 3.. That under the indictment in this case, if there was no 
evidence that the bpy Wash struck the blow, or blows, the 
jury must find the defendants not guilty ; Xvhich charge the 
court refused, and the defendants all severally excepted. 

"4. That under the indictment in rthis ease, if the jury can- 
not determine from the evidence whether John Wallace, 
George, or Wash struck the blow or blows which produced 
the death of the deceased, they must find .the defendants not 
guilty ; which charge the court refused, and the defendants 
Caesar, Brister, Jeff, and John Rodgers severally excepted. 

"5. That, if there was no, evidence that Wash and George 
were parties to the plot to kill the deceased, and if they were 
satisfied from* the testimony that Wash and George did kill 
the deceased, then they could not find the defendants guilty ; 
which charge the court refused, and defendants severally ex- 
cepted. 

" The court charged the jury — , • 

" 1. That, if they found that Cunningham, on the morning 
after the deceased disappeared, went to the ditch, and inquired 
of the slaves there for the deceased, and they hesitated or 
foiled to answer him that question, and that the prisoners 



^ JANUARY TERM, 1855. 117 

Brister et al. (slaves) v. The State. 

vere present when the said question was 'asked,-^they' might 
take that as a circumstance tending to sho^ th^ir guilt ; to 
which charge the defendants severally excepted. 

" 2. That the true test is, whether you believe the confes- 
sions true or no* ; and if you believe them to be true, the State 
must have the benefit- of them as evidence- The defendants 
severally exceptedHo this charge. •• 

"3. That theyi might believe ctoe part of the eonfessions, 
and reject »the other, and might look to all the circumstances 
connected with the case to ascertain whether the whole, or 
o»ly a part, w^s true ; and to tliis charge, the defendants sev- 
erally excepted. 

" 4. That, if they believed 'the defendants were present, and 
encouraged another to cfmimit tjie murder,. they were as guilty 
as if they struck the blow, and concealment of the crime, if 
they knew it had been committed, is a circumstance for the 
consideratiott of the jury as- to their guilt ; and to this charge 
tJhe defendants severally excepted. 

" After the jury had retired to consider their verdict, the 
defendaHts. BristcF, €a3gar, Jeff, and John Rodgers were re- 
toanded to jail, and while in jail the jury returned into court; 
and on behjg asked if they had jigreed upon a verdict, replied 
through flieir foreman that they had. The court then directed 
the clerk to receive and read the verdict, amd the clerk re- 
ceived and read it aloud accordingly, in the presence of the 
xjolirt and a large number of by-standers ; the pi-isoners Bris- 
ter, Cffisar, Jeff, and John Rodgers not being in court at the 
lime, and being in jail. The court then observed to the jury, 
that they were discharged, and the jury started out of the 
court-room, but had not got- out of the bar. It was then dis- 
covered that the prisoners were not in court, and the court 
immediately stated to the jury that they were not discharged ; 
and ordered the clerk to hand the papers in the cause back to 
them, and directed the sheriff to bring the said prisoners in- 
to court. When the prisoners were brought into court, they 
objected to the clerk receiving the verdict of the jury, on the 
ground that the verdict had been received by the court and 
read aloud in their absence, and that they had been deprived 
of their right to have the jury polled. But the court over- 
ruled the objection, received said verdict, and ordered the 



ALABAMA. t^> . 



Brister et al. (slaves) v. The State. 



M,me to be read in the presence of the said prisoners ; which 
was done accordingly, and said prisoners excepted." if 

The defendants Brister, Csesar, JelF, and John Rodgert" 
then moved the court, 1st, to set aside the verdict of the jury; 
2d, " that they be discharged, the verdict of the jury being 
received in their absence" : 3d, in arrest of judgment ; and, 
4th, for a new trial. In support of these several motions, they 
relied on the facts above Stated in reference to the verdict 
being received in their absence, and also introduced evidence 
of the misconduct of some of the jury while considering their 
verdict, in separating from each other without the charge of 
an officer, and in conversing with other persons; but upon all 
tjie evidence, which it is unnecessary to state at length, the 
outlet overruled each motion, and the defendants severally 
excepted to eat;h ruling of the court. 

The jury returned a verdict of guilty against the defend- 
ants Caesar, Brister, Jeff, and John Rodgers, and not guilty 
as to Bill and Archer; and the court thereupon pronounced 
sentence of dea,tli on the four first-named, but ordered the 
execution 'to be suspended until the decision of the Supreme 
Court could be had upon the points reserved by the bill of 
exceptions, oil of whickare-^ow assigned for eryofi. ^ 

I. W. Gaerott, with-whoto was J. R. John, for the. plain- 
tiffs in error : 

I. The Code, (§ 3576,) and also'Clay's Digest, (p. 459, § 58,) 
require that a copy of the indictment shall be. served on the 
prisoner, if in custody. In this case, it was served on the 
counsel, not of record, or the same who appeared for the de- 
fence at the trial, so far as the transcript discloses. 

II. The confessions were obtained under circumstances, a 
bare recital of which is sufficient to show that they ought not 
to have been admitted. The defendants are slaves, — were on 
the plantation of S. F. Pool, without any white person near 
them to whom to look for protection, — were taken into cus- 
tody- by sixteen or seventeen white men, who went on tlie 
place armed with double-barreled guns, negro whips ^nd 
sticks, and accompanied by a pack of negro dogs, known to 
be such by defendants. They were told what these white 
men had come for — viz., to find out what had become of the 



/•i 



JANUARY TERM, 1855, 119 



Brister et al. (slave*) v. The State. 



old man Rickard ; they were separated for examination, bat 
kept in custody, and some of, them were tied, and eo near that 
oach could see and hear what was done to the others ; it was 
announced in their hearing that one had confessed, and then 
the witness approaches each one of the defendants and asks 
hini, " What part did you take in the .murder?" (thereby as- 
suming .his guilt). If to all this it be added, tliat it was 
prov^ed or even left doubtful that one of the number was whip- 
ped before the confessions were made, it is too clear for argu- 
ment that defendants confessed under the *' torture of fear," 
or rathyr^ und§r the fear of torture. It is not surprising that 
one tjf these unprotected slaves was so terrified at this formid- 
able display of men and things most dreaded by them, that 
he actually " trembled" ; and to hold that a confession drawn 
from this defendant, quaking with fear and agony at what he 
saw and heard, would be equivalent to holding that no amount 
of fear which could e^ist in the mind, should render confes- 
sions extr.acted under its influence illegal. — Wyatt v. The 
State, 25 Ala. 9 ; 1 Green. Ev., §§ 214, 219, 222, 225 ; 3 Phu 
^v.» (C. & H. Note^), part 1, 429, note 259. ,,^3, 

2. It was incumbent oi) the State to show that the conies- 
eiong were voluntary,- — not on the defendants to show that 
they were not. One witness testified that the whipping com- 
menced before the confessions were made ; anotlier (a white 
^person) that he could not say whether the whipping com- 
menced beibre or after. the confessions. This doubt, even 
under the circumstances, was sufficient to require the exclusion 
of these confessions. — Wyatt v. The State, supra ; 1 Green. 
,Ev, 219. 

. III. Confessions, like all other admissions, when attempted 
to be .detailed, must be fully deposed to. Part cannot be 
given^ and part not. The precise language used must be 
fgiven, if possible ; if not, then -the substance of. all that was 
said must be stated by the witness. — Davis v. The State, 17 
Ala. 354, (357-8) ; Dennis k Stricyand v. Chapman, 19 ib. 
29 ; 1 Grepn. Evidence, §§ 218, 214 ; 3 Ph. Bv., (C, & H. 
Notes,) 425. 

The testimony of Pool, as to the confessions, falls far short 
of this. He says, that he does not " pretend" to give the lan- 
guage of defendants, or the language of any one of them; that 



120 ALABAMA; 

Brister et al (slaves) t. The State. 

"he stated the substajice of all he recollected that each d6^; 
fendant said, according to his best recollection, but that they 
may have said more which he did not recollect" (p. 14-15). 
How vague ! He does not pretend to use defendants' lan- 
guage, nor does he" give the substance of all* they said, but 
only the substance of all, or so much as he recollected. How 
much may he have forgotten ! He himself admits that they 
may have said moi'e than he detailed, and which he did not 
recollect. If such testiftiony is admissible, then the lives of 
men are dependent, not on what they mky admit or confess, 
but on the imperfections and frailties of those who hibar them, 
and who judge and pass on what they suppose to be the' sub- 
stance of what is said, and then detail so much of that.as they, 
happen to recollect. • *'■''»' **? ' 

■ IV. The defendants had a right, by demurring to the evi- 
dence, to withdraw thfeir case* from the jury, and throw thifemf- 
selves upon the judgment of the court* The iconstitutional 
right to be tried by a jury is secured to- every citizen, and if 
a defendant is disposed to waive this right, the' tribunal be- 
fore which he is tried has no right td decline to pass on his 
case, and to force him before a jury by whom he is not wil- 
ling to b,e tried, and who may be influenced by prejudicea 
which are supposed never to reach the bench. ' • 
* V. Thefe was no evidence against 'Archer that could raise 
efven a suspicion of his ^hilt,. and under section 2288 of the- 
Code,, he ought to have been admitted as a witness. 
^ VI! The circumstance that defendants pointed out the grave 
of deceased having been introduced against them, the de- 
fendants sought to explain by showing that they might have 
obtained their information from others' with whom the;^ had 
'for some time associated and who had knowledge of these 
facts. But the court, by refusing the first charge asked for, 
in effect asserted that this knowledge of the accused could 
liot be thus accounted for. This was wrong.-— 3 Ph. Bv., (0.- 
& H. Notes), part 1, p. 417; The State v. Guild, 5 Hals. 188.*" 
VII. As the cburt, on the preliminary ■examinatix)n; declined 
to exclude the confessions of defendants, then the question 
ought to have been referred to the jury, and the Court should 
have charged them that, if they believed that the confessions 
Were improperly Obtained, they should disregard them. — The 



JANUARY TERM, 1$55. Mf 

Brister et al. (slaves) v. The State. 

Stole V. Guild, 5 Halstead, 188 ; 3 Ph. Ev., {Q. & H. Notes,) 
part 1, p. 423-4, 429, 301 ; 5 Pick. 477, (496). 

YIII. The indictment charges that defendants and others, 
including boy Wash, with a club'axe, which Wash then held 
in both his hands, killed deceased. There was (saiy^ the bill 
of exceptions,) no evidence to show that Wasli struck tlie 
blow ; and the court was asked, and refused to charge, 
that if this material averment in the indictment was not 
proved, that tliey must find 9efendants not guilty. That it is 
material, is shown in 1 ^rchb. Cr. PL 89, (2), note 2. 

* IX. There wa^ no evidence (page IG) that Wash and George 
were parties to the plot to kill deceased. The plot, so far as- 
the proof shows, was between John W^llaqe and defendants. 
The proof shows that Wash and Gcprge did the killing. The. 
refusal of the cQurt to give the last charge, thei;efore, assented 
the preposterous position, ^that if (iefend^nts ajid John Wal- 
lace conspired to kill deceased, and afterwards Wash and 
George, having fiothing to do with this plot, killed the de- 
ceased, then the defendants are guilty 4 in other words, if 
defendants and John Wallace conspired to kill deceased, but 
Aid not do it, and some ether person with whom they had no 
connection did it, then defendants are as. guilty as if they 
themselves had done the killing. 

X. The first charge given at the instance of the State, 
(page 18,) .cannot be sustained. The fact that Cunningham 
addressed a crowd of thirteen slaves, the dfifendants being 
among them, and that defendants, who do not seem to have 
been in part or in any way called on to answer, " hesitated," 
or failed to answer, surely ought not to be used against them. 
They had a foreman vho- was their spokesman, and it was 
natural that they should refer to him, as the proof shows they 
did, to answer the question, 

XI. The last charge asked for is abstract and calculated to 
mislead the jury. There was no evidence to show that de- 
fendants were present, in legal sense, and encouraged the 
striking of the blow. The , proof shows that most of them 
were as^leep, where they were bound to be ; and if asleep, they 
could not encourage the deed. Nor was there any evidence 
to show any act of concealn^ent of the crime,. The bare fact 
that one does not tell what he knows, cannot be held to make 



122 •-. • ]^LABAMA. 



Brister et al. (slaves) v. The State. 



him responsible for all acts of whidh' He has 'i^dformataon. 
• XII. The second charge given, at the instance' of the Sf^te, 
is also erroneous, — because the true test as to confessions is 
liot ^whether tlrey are true or not, but whether ,propei«ly o\b- 
tain^ or not. ■ If the position asserted in tile ch^r*e be cot- 
rect, confession^ obtained on the rack wonld be admissible.' 

XIII. The dispersion of tlie jury vitiated their yerdict^Hui 
People V. Douglas, 4 Cowen 2(h'(88)'; Smith v^ Thompsoti>,^ 
ib. 221, hote a, p. 2;?5-G-7 ; Wooits >.* H^rt, B Caihes' E.yS*, 
Dana v. Roberts, 1 Root's (Conn.fl-84: ^ Oliver v. Trueteas 
of Pre§Wy. Ch: of Springfield, ,6 Co"^n 283^ 

2. The presitmption is that injury ^emilts from the di^pereion 
of the jury, and it must be sliown affirmatively that injury did 
liot result, or th'e verdict will be s^t aside. — McCanrt v, l^e 
Stalle, 9B. &, M. 465,' (467) ; Hines v.*The §tate, 8 Humph. 
5^1, (9 U. S. D. 343, §f ii, 22) ; Soles V. The State,-i3.S: 6: 
M, ^98, 401-2 ; Duvfe« v. Evelaud. 8 Barb. Sup. C* fti46 ; 
Overbeev. CommonwKialth, 1 Rob* (Va.) 756;*!' Arohb. 478- 
-19, (note^ wliere the authorities are collated. ^ ."'», 
»^- XIV. Verdict cannot *be rendered in the abseMce of'^lie 
prisoner.— The State v. Hughes, 2 Ala. 1U2 : 2 Hawkins 619, 
§^ ; Rex v. Landsingham, 1-Raym. 193. - " • . 

Xy. It is the duty of tlie court to keep the jftry together, 
and if it fails, then it conuirits • an error,^— because it JiaS not 
complied with what the laV impose^ as a duty. This ismat- 
*ter which can be readied by-W^i-it of error, apart from all con- 
siderations of motions in arrest of judgment, new.'t?ia},-^c. 
• • ■ . ■ » . . . 

P. T. Saybb, forithe Attorney OeneraJ, ewt^ra ; 

1. After a change of venue,at \^as too Ute fpr the defen^- 
•ants to raise the objection that a copy of the* indictment had 
not been served on them. — State v. Williams, 3* Stew. 463. 
This decision was made upeip' a statute clothed in' th<? same 
language with that used in the Code.-^Toulmin'g Laws of 
Ala. ; Aik. Digest. The action of the court will be presum- 
ed to have«heen regular. — Morris v. The State, 25 Ala. 59. 

2. But the -record shows that a copy was served oii the de- 
fendants' dbunfeel, and this is sufficient, for two reasons — iBt, 
because such has been the general practice of the State, which 
the court tvill judicially recognize (Millard's Adm'r v. Hall, 



^•t,* 



JANUARY TERM, 1855. 128 

Blister et al. (slaves) r. The State. 

24 Ala. 224) ; and, 2d, because the party is bound^by tbe acts 
of his counsel : whatever is -'done fey him in the pendeijcy of 
a cause, is considered as done "by authority of his client, and 
is binding on him."'— 2 Md. Ch.' Dec. 143 ; ih. 425 ; 13 U. S. 
Digest, p. 67, § 6 ; Lewis v. Sumner, 1» Metc^lf's R.-269,; 
Courcy v. Brenham, 1 La. Ann. R. 397 ; Flake & Freeaau 
V. Day & Co., 2% Ala. 132 ; 4 Irod. Eq. 485 ; 3 Dev. m ; 
6 How. (U. S.) 106 t,3 Cranoh. 297.; 'l Bui-r. 59 ; li Ala. 820. 

3. There was no error in allowing to each defendant hip 
peremptory challenges. — Hawkins v. The State, 9 Ala. 141 ; 
Bixbe V. Thg State, 6 Ohio fe. 86. 

4. It was a matter of discretion witli the court,Avhether or 
not to direct an. acquittal as to Archer ; and its action cannot 
fee reyiewQd on error. — The Sta^Q v. McLendou, 6 Strobh. 85^ 
,2 U. S. Digest, p. 533, '§ 34X ; Code, §§ 3594-5. 

5. Ijtsis conceded, tha^^ defendant, in a capital case, has 
the right to be present when the verdict is yepdered ; but in 
,thi^ case, the defendants had the j^ubst^tial benefit of th^t 
right. The mere fact that the juiy handed the verdict tp the 
clerk, by whom it was r^ad aloud in the absence of the pris- 
oners, diil not injuriously affect them, if by such action they 
lost no riglit wiuch then exiated. The record shgws that the 
irregularity was discovered before the actual dispersal of the 
jury ; and that the jury was immediately recalled, and the 
verdict rendered in the presence of the prisoners. The order 
dismissing the jury was a judicial act which could be act aside 
so long.as the jury remained .within the control of the court. 
But, even if the action of the court was eiToneous, the prison- 
ers were ,not oji .tliat account e^tftled to their discharge. 
The Sta^ v. Hughes, 2>.la. ij02 ; The Sta^e v. Battle, 7 
ib. 259. ,' . _ . . _ • 

6. The court properly recused to allow the defendants to 
demur to the evidence. Li all the prosecutions by indictment 
or information, the cpnstitution (Ai;t. I, §§ 10, 28) is manda- 
tory that the trial shairbe by jury. These defendants could 
only be tried by indictment, and ah in4ictment can only be 
found by a grand jury. It is plain that a party could not, by 
appearing in court, admitting his guilt, and waiving the in- 
dictment, subject himself to punishment ; because thp consti- 
tution is imperative, that an indictment shall first be found, 



124 '^ ALABAMA. 



Briefer et al. (slave?) v. The State. 



to givie the "court jurisdiction; and after the indictment is 
found, it is equally imperative as to the made of trial. If the 
indictm&nt, then, cannot be waived, no reasoii is perceived 
why a waiver of trial by jury could be made.— Doss v. Couf 
monwealth, 1 Gratf. 557. ' 

' *l. The rule as to confessions," whether made by wliite per- 
sons *or by slaves, is the Same. — Clarissa v..The State, 11 Ala. 
62. That they are slaves, and ij^norajit, are facts for %fe 
ccmsidetatibn of the jury iii weighing the testimony. — Sea- 
born and Jim v. The State* ''20 Ala. 18. The confessions 
must be* freely and voluntarily made, and uninfluenced by 
promises or threats ; and they are sometimes rejected; when 
made in response to a question which assumes the' party'-s 
'gailt. But the mere fact thii^ the parties ^re in custody, will 
not exclude confe^ions; — Seaborn and Jim v. The State, 20 
'Ala. 18 ; Wyattv. The' State, 25 ib.'n^ ; Spence v. The State, 
.17 ib. 197 ; Carroll v. The State, 23 ib. 28. The ne^uoes in 
this case,' it is true, wer# all 'arrested, by men wlto \piere 
armed ; but ho threats or promises were made * on the con- 
trary, it tvas 'announced in the presence of the negroes, that 
they h^ed ngt be alarmed,— 'that the party had only come to 
find (Alt What had become of Rickard. The iJnly hypothesis, 
upon which the .confession!? can possibly be excluded, is, that 
they ^Gre mac^^ after tfie boy Bill had teen, whipped. This 
Tact, hdrvi^ver, must affirmatively appear. On^ witness swears, 
that a(!cording to his best recollectidh, they were made. after 
th^whipping ; while another witness is unable ta remember 
which occurred first ; and the bWl of exceptions says, " there 
was some conflict of testimony" on that 'point. The rule is, 
that the bill of exceptions ffiust be construed most strongly 
against the party excepting ; and it is evident from the laii- 
guage here used, that there was»other evidence on that point 
not set but in the'record. For the purpose, then, of sustain- 
ing 'the judgment of the court, it wi}l be intended that there 
was evidence sufficient upon which to predicate the ruling of 
the court. The question propounded by the witness Pool to 
each one of the prisoners, did not assume the guilt of the party 
addressed : it was tantamount to asking whether he had 
taken any part in the murder. All tlte other cases decided 
in this State, in which* confessions have been ruled out on the 



^^ JANUARY TERM, 1855. 125 

Brister et al. (slaves) v. The State. 

ground that they were made in answer to questions assuming 
guilt, were based on the fact that the cfUestion assumed guilt 
affirmatively, and on the princijtle that the slave could not 
deny the assertion of the master. — Clarissa v. The State, 11 
Ala. 62. In this case, no guilt is assumed, but the party is 
left to make such answer as his feelings might prompt. The 
case of Clarissa is not regarded as authoritative, and the true 
tule is laid down in Carroll's case, 23 Ala. 28. • 

*■ 

RICE, J. — The indictment is for a capital offence, and w^as 
found in the Circuit Court of Perry, against the plaintiffs in 
error and divers other slaves. The trial of the plaintiffs in 
error, on their application, was removed to the Circuit Court 
of Bibb, under the provisions of sections 3608 to 3616 inclu- 
sive of the Code. These plaintiffs have been in actual con- 
^nement ever since the indictment was found.' When they 
-were brought into the Circuit Court of Bibb for trial, they 
objected -to going td trial, " on the ground that a copy of the 
indictment had not been served on them or their counsel two 
entire days before the trial." But it being shown to the court 
that a copy of the copy of the indictment set out in the trans- 
cript sent up by tiiekjlerk of the Circuit Court of Perry was 
delivered by the clerk of the Circuit Court of Bibb to the 
counsel of the plaintiffs in error at the preceding term of the 
Circuit Court of Bibb, the court overruled the objection, and 
the plaintiffs in ferror excepted. 

If the ground of objection had been, that a popy of the in- 
dictment had not be^i delivered to them two entire days be- 
fore the trial, and no other proof of delivery had been 
adduced than- that alx)ve shown, we- should, without hesita- 
tion, have reversed the judgment ; for the right is ccyiferred, 
by section 3576 of the Code, upon every person indicted for 
a capital offence, if he is in actual confinement, to have a copy 
of the indictment delivered to him at least two entire days 
before the day appointed for his trial. — The United States v. 
Curtis, 4 Mason's Rep; 232 ; Smith's Com. on Stat., pp. 685-6. 
But our dutiee-as a court for the correction of errors committed 
by inferior tribunals are defined by law, and confine our ex- 
amination to the actioUfOf thecouft below upon the objection 
$LS there made. We cannot allow to the prisouers the benefit 



126 ALABAMA. 

Brister et al. (slaves) v. The State'. 

of an objection they did not male e below, and of which they 
deprived themselves by the objection, which they did make. 

The rule is, tha^ we can indulge no presumption adverse to 
the correctness of the action of the primary court, but must 
make all intendments in its favor not inconsistent with the 
record. — Morris v. The State, 26 Alfi. 57. We cannot, there- 
fore, know or say that the court below would not have sus- 
tained the objection, if the gi^ound of olyection had been that 
ft copy of the indictmeat had not been delivered to the pris- 
oners two entire days* before the trial. The form in which 
the graund of objection was stated — " that a copy of the in- 
dictment had itoi been served on them or their counsel two en- 
tire days -before the trial "-^was treated by the court be- 
low as a waiver of the right of the prisoners to have 
a eopy-delivered to them, if a copy.had been served on their 
counsel two entire days before the trial ; and therefore, oil 
proof being made to the court that a copy had been deliv€a-ed 
to their counsel by the clerk more than two days before the 
trial, the court overruled the objection as made by the prisoners. 
We cannot decide that the court err^ed in this. JVwi constat, 
the State might have proved a delivery of a copy to the pris- 
oners themselves, more than two days before the trial, if the 
objection had been put on the ground that a copy had not so 
been delivered to them. They relieved the State from the 
necessity of making such proof, by placing theil* objection on 
the ground selected by themselves. — 93d Maxinj in La,w G-ram- 
mar, p. 76. , .* 

t-^Wheu the trial of siich a case as thie is removed^ as this 
was, section 3615 of the Code provides, that the prisoners 
''must he tried on the copy of the indictment", certified in 
tlie manner directed by SectioA 3613. In-such case, the copy 
so. certified becomes so.far an original, in the court to which 
i;hi3 trial is removed, tliat a copy of such copy wljen delivered 
to the prisoners will have aH tiie effect that a delivwy of a 
copy of tlio actual original could have. ,' - 

^ 2. Thp transcript furnished by the dei^k of tlie Circuit Court 
of Perry in this case, to.tbe Circuit Court of .Bibb, duly cer- 
tifies a copy of the caption of the grand jury, the indictment, 
with the endorsements thereon, and all entries relating 
thereto, aud^.tbe order for- the removal of the trial, and 



JANUARY TB»M, 1855. M 

. x-yr^-vrfV'- - . - :. . ^ . ., — ^ ■ — i , ^^^„^,.,-- ,^ . 

^ ^ Brister et al. tslaves) v. The State. 

ell other orders in the eanse, as required by section 3613 
of the Code. There was no error in overruling the objection 
made by the prisoners to going to trial before the Circuit 
Co'urC of Bibb on' said transcript. 

3.' In Hawkins v. The State, 9 Ala. 137, it was decided, 
that if there is a joint indictment, ftnd joint trial of several 
persons, each may ehallenge the wliolo number of jurors to 
which he wou-ld be entitled if tried separately ; and that no 
man .ought to &it as a juror, upon a joint trial, who was not, 
in the estinmtion of all the prisoner«j indifferent as te all. 
'this decision is sustained by high authority, and is fully ap- 
proved by us. Thef^ is, therefore, no error in the rulings of 
the court below as t« the challenge of jurors. * ■ *' *^ 

4. It has been long*settled in England, that In a crimmal 
prosecutitDji, the crown officer is- not bound to join in a de- 
nrait-er to'-evidenee feniered by the defendant.—! Chitty's 
Crim. Law*623- (mar. page). The right of a prisoner to com- 
pel the State to join in a demurrer tq, evidence is not given 
by tiie common law, or 1:^ statate, or by the constitution'^ 
and we hold, (as the General Court of Virginia has heretofore 
held,) that neither the State nor the party accused can be per- 
mitted, except k)j mutual consent, to withdraw, by a demurrer 
to evidence, the trial of the cause'from the 'jury to the cour4. 
J)oss V. The Co;nmon wealth, 1 Gratt. R. 557. 

'5. Where the court conMnits an error by admitting evidence, 
wliich, at the time of its admission, was not admissible, such 
error is cured, if the record affifmatively shows that the evi- 
dence so admitted becaifte admissible by reasOfn of other tes- 
timony subsequently introduced. — Lawson v. The State, 20 
Ala. 65. This principle disposes of the ^veral exceptions 
taken Ijy the prisoners durin|^ their cross-examination of the 
witness Pool, -^provided the cohf^sidns of the prisoners (if 
proved literally) do not appear to us to have been inadmissible 
confessions : which is a matter we shalj examine as soon as we 
add a few words relating to the exceptions last above named. 
, The record shows, that, " on re-examinatiou, said Pool tes- 
tified, that he had testified to the substance of all that each of 
'Sai<l defendants stat^ed on that occasion, but that they may 
feave stated sometWng that he did not tecollect." This was 
as much as the law exacted, to entitle him as a witness to 



128 ALABAMA. 



Blister et al. (slaves) v. The ^te. 



testify to any voluntary and admissitsle confessions of the 
pj-isoners ; and all the exceptions taken to the testimony of 
Pool -are miavailing to the prisoners, unless t^e reeord shows 
us that the confessions of the prisoners are such as the law 
rejects. . ' * . 

6. We now proceed to 4;he consideration of the important 
subject of confessions. Wp shall treat it with becpming cau- 
tion, and ^lall ooniine ourselves as much as possible to the 
langua,ge used by wha^t we &^em the highest and best authori- 
ties on the subject. 

In the first place, we shall state the general rules which 
siiould govern- tlie judge in deciding upon the competency-^ 
the admrssibility of confessions. 

Before any confession can be received in evidence, in a 
criminal c^se, it must be shown that it- w^s voluntary-^that 
is, that it was made without the aj^iianoes of hope or fear, 
by any othfer person. Whether it' was so made or not, it is 
for the judge (before he admits it) to determine, -upon consid- 
eration of the ag^ condition, situation and character of the 
{)risoner; and the circumstances under which it was made. 
The material inquiry ie, whether the confession has been ob- 
tained; by the influence of hope or feaJr, appiied by a third 
person to the prisoner's nvnd. — 1 GreenL^Ev., §219 ; Wyatt 
V. The State, 25 Ala. 9 ; ^pence v. The State, 17 ib.ldl; Sea- 
born and Jim v. The State, 20 iB. 15* 

But all the foregoing must be taken -subject to the qualifi- 
cation necesssrrily implied from the existence of a certain other 
well-settled rule, m sub'stacce as^follows: Although, by. the 
flattiry of hope, or' by the tortur6 of fear, information ^as 
been obtained frftjn the prisoner, yet, if in consequence of such 
information so obtained from him, the- body of the person mwr- 
dered, or any other materiftl fact, is discovered, it is competent 
to show that such discovery was made conformably with the 
information given by tho prisoner, and to show that he stated 
that the thing "would be foand . at a particular place, and to 
prove that i* was accordingly so found ; for the statement as 
to his knowledge of the place where the body or other evidence 
was to be found, being thus confirmed by the fact, is proved 
not to have been fabricated in consequence of any inducement 
or infiv£nae. And this coincidence between his statement and 



JANUARY<T]piM, 1855^. m 



Brlster et al. (slaves) v. The Stote, 



the thing discovered is a raattei!; which the law will not wrth- 
liold from a jury. This rulfe, and its limitation, will be fo-und 
in 1 Greeol. Ev., § 231 r sec, also, 2^Phil. Bv. 241), note 225 ; 
2 Russ. on Crimes, (ed. 1853-,) pp. 862-3. • • •• 

Where promises or threats havq loeen us€fd, yet,- if it appear 
to the satisfection of the judge that thdr- infiuen(^ u-as totally 
done away before the confession was made, tlife evidence will 
be received. — 1 Groenl. Ev., § 221. 

In the next place, we shall state the- ruies which should 
govern the parties and the jury after confessions have been 
admitted by th*e judge. ■.-•->■'*!' < 'f - 
"•Whenever a confeesion is admitted jay the court, the jury 
must take it : they can-not I'eject it ag incompetent : they are 
confined to itsr credibility and effect. „ 

■Either party -has the right t6 prove to th(f jur^ the same 
facts and .circumstances- whieli were legally proved to the 
cQurt when it was called upoil to -decide the question of Com- 
petency, and all other circumstances applicaWe to the con- 
fession or having' any legal bectring o*i its credibility or effect ; 
and if, in'vie^^* of all the facts and circumstances proved, the 
jur'Jr -entertain a reasonable doubt as to the tiirtli of the cott- 
iession, they 'mar disregard j-t, in their decision of the case, &s 
being i?iwedibk, although _ttiey cannot j'(^ect it ix^ incompetent. 
The Commonwealth v. Dillon, 4 Dallas lt6 ; Conjmotiwealth 
v. Knapp, 10. Pick. 477-49^ ; State v. Giuld, 5 Halst. 163 ; 
2 Phil. E V. 235-240, -notes 205 and 207 . If they entertain rf» 
sitek reasonable doubtj they ought not ta disregard jit,'although 
they may believe it was. obtained by the appliailCeS- of 4iope 
or fear to the mind of the ppisoner. - .^ 

TJie rules/Ubove laid down recognize^the sphere of the judge 
and the- sphere of the jury as distinct ; and, whilst they pre- 
vent the jury from invading the province of the judge, they 
alike prevent l»m frort invading their prdvinci!. These- rules, 
aLso, preserve the great safeguard thrown aroUnd e%'^ery per- 
son; charged with crime— the right to claim at the hands of 
a^ jury tile benefit of every tcasdnable db«bt. arising from tbfc 
evidence. -. ^ * •' - 

7. A majority of the court aT»e of opinio^n, that the confess- 
ions in this case, under -the previous decisions of this court, 
%iBr-e improperly received, and that tlie motion to exclude 



t$S 4-LABAMA. ; ' 

Brister et al. (slaveg) v. The State. 

them fronl the jury, which ^ays, " to these confessions, thus 
obtained, the prisoners objected, and moved to exclude'', &c., 
must be considered as referring to the preceding proof show- 
ing the manner in which the confessions were obtained. They 
are of opinion, that, although the bill of exceptions fails to 
set forth all the proof, yet it shows that the decision of the 
court w?LS predicated upon that which is set out ; and as 
enough proof is set out to put the court in error, if there was 
other proof, it was the duty of the court to set itself right by 
setting it out. 

• In my opinion,, the prisoners halving i>bjec<;ed to the con- 
fe'^ious, as being elicited by a question assuming their guilt, 
viz., " What part did you tajvc m the murder ?" and this ob- 
jection having been overruled, and the confessions adpiitted 
in evidence, the objection and motion to exclud'e immediately 
following— namely, "to these cc^ifessions, thus obtained," &c., — 
r^ers to thi&lr being- obtained a« previously Stated by the 
preceding objection — that is, in answer to what the counsel 
supposed to be an improper question assuming their guilt. I 
tUinlj^ the bill of exceptions fairly admits of tjiis construction, 
and as it sustains the judgment, (Carroll v. The Sta^te, 23 Ala. 
28,) numerous decisions of .this court require that we should 
so construe it. I do nyt think eiiQugh is shown in the record 
to put the §ourt below in error. ' 

8. In this connection, it is proper to say, that it fallows 
f^om the 3:ules above statod, that there^was no error in the 
second charge given by .the pourt, Jior in refusing the second 
charge asked by the prisoners. If tliis second charge asked 
had been given, the jury would have been thereby forced to 
" €a;c/wrfe theiii confessions frojn their' consideration ew/zVie/y'', 
although they were convinced beyond a reasonable doubt that 
the confessions were ime, — merely because they could not de- 
termine beyoncl a/r^asonable d0«l\t that the cenfessions were 
made before the slave Bill was whipped. 

9. There was some evidence against the sle'te Archer, tvho 
was put upojj his trial with the plaintiffs Jh error. The juiy 
mi^lit have believed that part which tended to fix guilt upon 
him, and havo disbelieved that part Avhich tended to excul- 
pate himv Ther^ was alo error. in overruling the several mo- 
tions of the prisoners, which were made for the purpose of 



J JANUARY TERM, 1855. m 

Brist«r et al. (slaves) v. The State. 

enabling them to use their co-defendant Archer as a witness 
for them.— Code, § 3594. ^ , . 

■ 10. The bill of exception^ fails to show that there was any 
one of the thirteen slaves who were living and working with 
deceased when he was killed, who had not been charged with 
his murder ; and it also fails to show, that any of said thirteen 
slaves, except the plaintiffs in error and Xrcher, knew where 
the grjive of the d€ceased was^and had pointed it ojit. The 
first charge g,sked "by the prisoners assumes that there was 
evidence -of these facts. There was no error in refusing that 
charge, for it was abstract, and not authorized by the evidence. 
Waters. V. Spencer, 22 Ala. 460 ; Brpoks v. EMveth^ib. 469; 
Swallow V. The State, ib. 20 ; Carey v. Hugl^s, Vijb. 388. 
\ J,\. If the indictment cliaj^ges that A ga.ve the mortal blow, 
and that B and C were present, aiding and abetting, «fec., but 
on the evidence it appears that B struck, and that A and C 
were present, ajdifig and sJoetting^^c, this is not a material 
variance^ for the stroke is adjudged in law to be the stroke 
of every one of them, and is as strongly the act of the others 
a,s if they all had held \he weapon, and iiad all together struck 
{he deceased.— 2, Russ. on Crimes, (ed. 1853,} pp. 793-4; 2 
Hale's P. C. 292. Therefore, thete was no error in refusing 
the^third, fourlji, and fifth charges asked by the ^risoners.-^ 
Rex v. MacAlly, 9 Rep. 67; Sai^char's casp^iS. 119 a. 

The fifth charge .asked is liable to another insuperable ob- 
jection; It a^jiipos it to be.la,w, that alMiough the prisoiiei:*- 
may have been parties to the plot to kill the deceased^ and 
although they may have been present, ajdii^g and abetting and 
escicouraging ^^a^h and Qeprge- in ,the murder^ yet, if Wash 
and George did th^ jkllliug,. md were not parti'es to the plot, 
the prisoners iqustl)e totally exonerated from the guilt of the 
jnurder,,^me?:ely because ^^ash .ofld George were not parties 
i^o the j^]M. ^. . , . , .*-.., ' . .* • 

1*2. ^e have'cgpefully exajnin^d the mii, ihwd ana fourth 
^iftrg^es gjven by, fehe ^ourt, and are satisfied there was no 

ror iii ^ving.them.— ^ee the authorities aoove cited ; and 

SQji V- The Stiate, 17 AV 618 ; Campbell* v. The State. 

ib. 28 ; Smith v. The State, 9 ii. 990. ' 

3.^ 'J'h^rule of Igiw is undoubted, that on^ tried for a crime 

fts a' right to be present M'heu the jury return their verdict 



ii ' ' I ■ -^ • — r ■~— — ' '- • 

^ I .... Bri^ter et al. (slaves) v. The State. 

against him. But the reason — the only reasoii — of this rule 
iSj that he may examine them by the pt>ll, to ascertain if they 
assent to his conviction. — The State v. Hughes, 2 Ala. 102. 
When it is clear that the reason of this rule has been fully 
satisfied, the rule itself is satisfied. When the jury returned 
with their verdict in this case, and announx^ed that they 
had. agreed; the prisoners were not in court, but in jaih 
But the court, hot knowing this, directed tK^ clerk to receive 
ahd read 'the verdict, and the clerk did read it aloud in the 
presence of the court and a large number of bystanders., 
'* The court theti oijserved to the jury, fhat'they werie dis- 
charged, and the jury started out of the court-room, but had 
not got out of the bar. It was then discovered, that the pris* 
oners were aot in cdurt, anH the (Jo'uft immediately stated to 
the jury, tJiey were not discharged, and ordered the clerk to 
hand the papers in the caus6 batk to them, and directed the 
sheriff to bring the prisoners into courf. When the prisoners 
w'ere brought into coiirt, they objected to the court's receiving 
the verdict of the jury, on the ground that the verdict had 
been receive^ by the cOurt-and read aloud in tlieir absence, 
and that they had been deprived of their right to have the 
jury polled ; but the c'ourt overruled the objection, received 
said verdict, and ordered the same to read in the presence of 
the said" prisoners. ; which was done accordingly ^./and said 
prisoners excepted." ' . ' • "^ , 

Upon these facts, wfe hold that the jury ^erS not discharged, 
in legal contemplation,* bj the occurrences which transpired 
in the absence of the prisoners. The observation of the court 
to the jury, that they wore discharged, was revocable by the 
CGiurt for a tiijie, and was revoked in due •time. The revoca- 
tion was in time, because it was almost instantaneous and 
whilst the jury, as a body, were still continuing to be in the 
bar, and in the presence and power of the court. This revo* 
cation being in time, we think the court had the power to 
return the papets in the cause to the jury, and to do what it 
then proceeded to do. Such a course of proceeding did not 
deprive the prisoners of the right nor the opportunity to ex- 
amine the jury by the poll. There is nothing sound in the 
•argument that the right to poll was prejudiced by the fact 
that the verdict had been preyiously read aloud in court ; for 



JANUARY TE RM, 1855. ^ 



Ex. parte Rowland. 



the right to poll the jury eannol he exercised in a»y case 
ijntil the verdict has. been read aloud in court.— 72 Hale's 
P. C. 299-300. ...*,.'. 

14. The improper Conduct of a jury;, aCter tHey have retired 
to make up a verdict^ is not a, ground for a motion in arrest 
of judgment. — McQann v. The State, 9 Sm. & Mar, 46$ ;^^ 
Waterman's Archb. Cr. PI. 178-31, and note (2). ' ' ",. 

15. Misponduct of ajuty is a ground for moti^il.for a new 
trfal. — Wharton's Cr. Law 895; Waterman's Archb. Cr. PI. 
J.'iJ8-19. 3ut it is too firmly settled in this State nqw to be 
questioned, that this cpijrt cannot revise the action of <^e 
Circuit Court refusing a new triaJ. 

We have carefully deliberated upon every question pre- 
sented by the record, and the result is, that while I think the 
judgment and sentence should be affirmed, my brethren be- 
lieve there is error in admitting the confessions ; and for that 
errqr the judgment and sentence pronounced in the court 
below mus4 be reversed, an^ the cause remanded. 



. ^1 ' Ex PARTE ROWLAND. 

-^ ■■• .'iP . • • • 

1. Mandamus from the Sapreme Court does not lie to' compel the chancellor 
to dismiss a cause, on m^jtion, in pursuance of a written agreement between 
,*^e parties to that effects ■ \ 

AiTLiCATioN for a mandamus to the Chancery Court of 
Perry. Hon. James B. Clark, presiding. 

The petitioner (JcJimi "S. Rowland) alleges that he filed a 
bill in equity, in April; 18'53, against one Samuel Whitman, 
for the settlement of «ertam partnership accounts ; that after 
the defendant had answered, and had also filed a cross bill, 
a written agreement was entered into between them, " that 
the said original bill, cross bill, and answer, and all the 
claims set up in the same, should be totally abandoned >y 
the pajtieg, as though they had never existed,— -each party 



134 



•***' 'ALAftAMA.^^''- 



Ex parte Rowlfeiud. 



JjayiJi^ his oavti costs*'; that Whitman, at the nexf term''6f 
th'0 Court, moVed to s6t aside' this Agreement, on the ground 
of fraud, and filed affidavits in su|)port of his motion, and at 
the same term petitioner moved the court to dismiss the cause 
'M pursuaince of said agreement : 'and a"t the. pext ternf 6f the 
court, both these motions were overruled and refused,— with 
leave to petitioner to move to modify the injunction, and 
'te^RHbut prejudice to Whitman's right to proceed by supple- 
mental bill (or othel^v^se)" to have said' agreement vacated. 
And on these facts "thff petitioner now asks for a rule liisi 
against th6' chancellor, to show'*feause why a peremptory 
mandamus should not issu^ from tliis court, to compel him to 
dfemigs said cause in pursuance bf said yf hieli agreement. 
. > . ■■ • f ■ ^ 

■*«■-' I. W. Ga^rott, for *the*mofion, to sliow that h.andafrhiis was 
'^« proper rehiedy, cited Stephenson v. Manfeony, 4 Ala. 320; 
Mallory v. Mattock, T iZ>, 757,' same case, 10 ^. M)7; Tafver 
V. Commissioners' Court of Talladega, 17 ii. 527 ;' Tapping 
on Mandamus (67 Law Lib.), top p. 58-9. 

Jos. R. John, contra, contended that this was Hot a proper 
c|ise for a mandamus,' QlVl^ cited thje following authorities: 
, Board^of Police t)f Attala Co. v. -Grant, 9 Sm.^ M. 8§; Ex 
farte MilHer^ 6 Eng. Law and Eq. Rep. 373 ; TkeiPeo.ple v. 
Judges of Duchess C. P., 20 Wead. 65§ ; Ex %^e Elston, 
25 Ala. 72 ;' Ex parte Henry, 24 i6. 638 ; Ex' pq,tiiG\\.Y Coun- 
cil of Montgomery, ib. 98. *** Vi^ 



4 .' 



^■.? 



PER CURIAM.— Motion refuseS, oii tljlftitl^t}' of ^x 
parte Blston,, 2^ Ala. 72; Ex /^rte Sm^lv^. W^ t^» parte 
City Council of Montgomery, £4 iL 98^apM'pases cited. 






^-it 



-'^- 



JANUAHY TERM, 1855. H/A 



MijCauley v. The State. 



McClULEY vs. THE STATE. 

1. A lawjer's' ofiicts tliwigh a ' public liouae" witliia the .statete ag^iiMt 

• gaming, (Code. § 3243,) is not a. "public pJace.'-* , . , . j. . 
•^ a'be constitutipnal guarauty of a trial by jury, •' in uU criiuinal proseCu- 

* tions,'' includes the right to have the delilwrations of the jury continued, 
when ohce they have *i)e<rnH the triaVaftd }reai*d i\ny evidence, until the 

• oocurtence of a sufflciont legal roa«on for their discharge, airtl the clianbe of 
» a verdict of aoquittaj at their bands during iill that time : and therefore the 

unaaithorized discharge of a jury in any critninal case, either fot a misde- 
meanor or a felony^is etiuivaJent to an acquittal. (Chilton, C. J., express- 
ing no opinion.) * " , 
3. But, since the court-tJas power to€lisc|>arge the jury ia Cases of necesshy, 
or when the prisoner consents to it, a plea of a previous withdrawal of the 
cau.se.from the Jnry after issue joined, '' without tjie consent of defendant, 
arid against his objection", is defective jon demurrer : it should ^so (legative ^ 
the existence of any necessity for such withdrawal. 

• Appi;al from the Circuit Court of Pickens. 
Tried before the Hon. -Alex. B. Clktheball. 

The appellant, with Bird Ivey, William T. HawKifts, 
William H. Davis, Joseph May, and Robert 0. 3eaJle, was 
indicted, at the Spring term, 1854, of the Circuit Court of 
Pickens, for gaming. He filed a special plea to the indict- 
ment, in which he avers, " in short by consent, that at the 
present term of this court he was charged upon this identical 
indictment, for the identical offence charged therein, and for 
which he is now put on trial, together with one William T. 
Hawkins and one Joseph May, and that for his plea to said 
indictment he said he was not guilty, and issue was thereupon 
joined by the State of Alaba-ma, and said cause was put to a 
jury of twelve good and lawful men in said Circuit Court, 
duly elected, empanneled, and sworn to try said issue so 
joined as aforesaid : and Alfred E. Van Hoose, Esqr., the 
solicitor who prosecuted said cause on behalf of the State of 
^labama, proceeded to examine a witness to prove tlie issue 
on the part of the State of Alabama ; and after said cause had 
been put to said Jury, so elected as aforesaid, upon the issue 
joined as aforesaid, and after the solicitor aforesaid, had pro- 
ceeded to examine a witness to prove said cause on behalf of 



136 .^-^; ALABAMii rr^M 



McCauley v. The Stpie* 



the State as aforesaid, the honorable the Circuit' Court of 
said county, without the congent of this defendant, and against 
his objection, on mptipnef said solicitor, gr£|,nted him leave to 
sever the trial of the parties who had jointly put in the plea 
of not guilty to the charge in -said indictment, and withdrew 
the cause as to this defendant from the juty to whom, as afore- 
said, the same hhd been submitted for trial ; all of wtich thjs 
defendant is ready to verify* by the i;eco]^l." . \ . .. 

The court sustained a -demurrer to tWe special plea, anid the 
defendant then pleaded ciot gaiky ; on wlttch plea issue hat- 
ing been joined, a trial was had, and" flie defendant found 
guilty and convicted. Erom tlie bill of exceptions it appears, 
" that the evidence showed that the defendant played .a g^me 
with cards, in the office of Z; L. Nabors, a practicing attorney, 
in the town of Carfojlton in said county, whi6b is the county 
site ; thdt the office is on the same lot w^th the said, lawyrcr^s 
dwelling-house : It A'onts on the street, — the enclosure of the 
dwelling-house runnipg to the front corner ■ «f said office ; • a 
young man, a minor ^yho wjis in the empfoy'of oaid la\^er in 
hfs printing Office, which is disconnected with said office, 
sleeps in it ; that ihe game played by McCauley was in'the 
nightrtimej by thc'colisent of liic. young man,, who did not 
engage in the game' ; J^iatthe application for l^ve,came from 
McCauley, or from someone in his conxpany ; that the play- 
ing comnjenced about Jiirib^'^'clock at night, when the doors 
^^e locked ?ind tlte curtains of the windosfs drawn, so that 
the .'inmates could not be« 6e<3n from the oiirtside ; that the 
number engaged in the playing were four o^ Jive, and therJ3 
" »(fag no person present who 4id iiot engage in the playing, 
except the minor above mentioned.>-.It>was in evidence, also, 
.that on several occasions before. I^is time, aj^licatioils had 
been- made to the young man for leave to play eardsin thig 
.office^ which he granted ; that he had no. permission from his 
employer (the said lawyei-) to jiermit gajniijg ia said office, 
•\)utf on the coittrary, his employer h&d expressly forbiddep. 
him ; but whether this was before or aftef the playing he 
could not tell. • It was also. -in evidence, that there had been 
playing 4n said office on a Sunday ; but tljese was 'no proof 
ponnecting defendant- with it. 
"vi iiPpoQ this evidence, the court charged the jury, that, if 



JANUARY TERM, 1855. 13? 

McCauley v. The State. 



they believed the evidence, the defendaipit was guilty of play- 
ing cards in a public place, within the purview of tj^e statute ; 
to which charge the dcfcHtfant excepted." 
No errors are assigned on the xecord. 

S. I^. Hale, for the appellant : 

1. After a criminal cijiuse* has been submitted to the jury, 
and some evidence offered by th"fe State, a withdrawal of the 
case from the jury, unless ^r some of t)ie causes allowed by 
the statute, operates as aij acquittal, and the. prisoner cannot 
be again put upon his trial for the same offence. — Mount v. 

''The State, 14^0hio 295 ; The People v. Barrett *& Ward, 
2 Gaines' R. '3D4 ; The State v. McKee, 1 Bail. 651 ; Com- 
monwealth V. Cook, 6 S(?rg. & R. 577. The cases referred to 
loj the Attorney G eneral ^.re not in point : the Virginia c^se 
(7 Gfatt. 6^67) was on a statute ; and. the New Jersey cas'e 
(4 Halst. 257) was one'of 'jiecessity',' as one of the jury had 
escaped. . " ' / 

2. The charge Was '^rroneotis. — Burdine v. The State, 25 
Ala. 60. 

• M. A. 3ALDWIN, Attorney. General, and P. T. Sayrb, c(mtra: 
If the court suffe]*s a ease to be withdrawn from the jury 
after some evidence has been submitted to them, this does not 
entitle the defendant to "H discharge under that indictment. 
Dye'v. CommonweaJth, 7 Oratt..667 ; Hall v. The Statfe,-4 
Hfilst. 257 ; The Peopte v. Elli^, 15 Wond. 371- The People 

V. Detiton, 2 Joiin: Gas: 271 ; The People a^. Qlcott, 1 ib. 8t)l ; 
8 Co wen's R. 127 ; 9 lyeigh's R. 614 ; Mahaia v. The State, 

:10 Yerg. 535 ; The State y. Brooks, 3 Humph. 70 ; The State 
V. Morrison, 3 Dev. & Bat. ITS* 

■ ■ -:-■■■' •• , ■ . .■■'». ... V 

.,. KI(JB,-^*^~UpGn the authority pf the case, of Windham 
et. al. V. The ^tciie, decided at the present term, we must hold 
the charge of Jhe cou^*t to.be erroneous ; fo*r,* although the 
office where the pl?iying oc(?iirred4s a " public house", it is not 
" a public place", within the meaning o^f section 3243 of the 
Code. , . ,' ' ,.. , . 

As the cau^e must be remanded for the error aboveoioticed, 
it is proper that we should expr^^s our, opinion upoa the iin- 

;pprtsuit questions wh^ch ate connected with the matter stated 



McCaulev V.' The state. 



in the -special plea, to which a demirt*per wae ^u^ained. • The 
first of these questions is. whether thbre can be, in this State, 
any such thing as the unautli'oriz.e(t discharge of a jury,' in tiio 
case of a misdemeanor. If there is. the- next question will be, 
whether such discharge is equivalent to an acquittal. And 
if that be so, the renminitig question will be, whether^ the 
facts stated in said special pica establish such djscharge. ,^ 

Uo such questions have heretofore been presented) tp, pr 
^liecided by this court, in the case of a misdememwr.- . » 

'"■' In Ned v. The State, 7 Porter's R. 187, (a capital case,) 
o«r predecessors, upon a review of the leading English and 
American authorities, decided (among other things), that 
courts have not, in capital cases, a discretionary authority to 
discharge a jury, after evidence giv«n ; that a court does pos- 
sess the po-wer to discharge a jury, in any case of pressing 
necessity ; that, although the judge determines the existence 
of the facts, yet, when they are "ascertained, the law deter- 
"V mines whether they constitute a case of necessity ; and that 
tlie unauthorized discharge of a jury is equally as fatal to any 
subsequent trial, as an acquitial or conviction. 

In Cobia v. The State, 16 Ala. 781, (an indictment for 
murder.) this court held, that tlie discharge of the jury, before 
verdict rendered, "must be understood to mean a /e^ai? dw- 
cAar^c", and that the, result of th^ authorities^ was, "that if 
the prisoner be put on his trial ilpbn a s'ufficient indicttaent, 
and the evidence Jut support of the charge is submitted to the 
jury, the court ,cappot arbitrarily interfere and arrest the trial 
by dischargingHhti'jury ; and if the court shoidd discharge the 
jury before they deliver tlieir verdict, without a sufficient legal 
reason for doing it, the prisoner shaJLnever be tried, again." 

Every (decision of this l^nd rests upon this solid ground : — 
that such decision is essential to preserve inviolate -to the 
prisoner 7Ae right of trial by jury, aS guara»tied by the col^ 
stitution. This right cannot mean less than a right to have 
the deliberations of the jury, when once they have begun the 
tfial and heard any evidence, continued until the oecurrerice 
of a sufficient legal reason for their discharge, and the right 
to hav^, during the entire period of such continuance, the 
chance of a verdi-ct of acquittaPat the hands df that jury. It 
is impossible for any judg^ to say, that' ihe jury would not 



JANUARY TERM, 1855. , ''fl9 

, — . _ — _ : : 1 — 

McCaiUey v. The State. 



have acquitted him." *It is efj[imlly impossigible Tdr any judge 
to say, he can get another jury who will atrquit him. The 
law does say, if any jury ever doe?* acquit him, their verdict 
shall not be set afside by any court, however unwarranted by 
the law and the evidence in the case that vei'dict may be. 
The chance of a verdict of acquittal, at the hands of each jury 
to whom the cause and any evid<6nce have beea submitted, is 
obviously important to a ^prisoner, and is clearly embraced- 
*in the guaranty of trial by jury. To depinve the prisoner of 
this chance, by the lawless act of 'the court in disclmrging the 
ijury, is a flagrant wrong, for which there is no remedy,- except 
to treat such deprivation as equivalent to* an acquittal. To 
hold that there is no remedy for such a wrong, i^ to hold that 
the right of trial by jury has' ceased to be a right ; for if, by 
•such Lawless^ act of the court, one jury may bfe discharged, an 
indefinite number may be discharged-'in the 'same manner. 

That the ground above stated is the unassailable ground 
'upon which the -decisions above cited must rest, is evidetit 
from the fact, that wliilst they hold th'at the unauthorized dis- 
charge of a jury before they render a verdict will protect tlie 
prisoner' against a subsequent trial as fully as a verdict of 
acquittal, they also hold, that if the prisoner has been actually 
convicted, and the judgment ^as been reversed, or a new trial 
granted, at hisinstance,' be "may be tried a^in. The pfinci- 
' pie which reconciles th^se Wo positions, thus maintained in 
these decisions, may be tlius stated : The constitutional guar- 
aitty of trial by jury is broken by the fewless discharge of a 
jury after they hear some evidence and* before they render a 
verdict • but, wheye a trial ie actually had, and .a verdict :6f 
gyiity rendered, that guaranty^ nof broke» by mere ■errefe- 
committed on that trial, for tlie correction of which a remedy 
ig provided by lq,w. If the prisoner has not been lawlessly 
deprived of his chance of a verdict of acquittal, by an unau- 
'thorized discharge of a jury, but has had a trial by jury and 
been found guilty, — in that case, although " errors may have 
been committed by the court on the trial, to his prejudiiee, he 
has his remedy whereby he can procure from a revising court 
the correction of such errors — the reversal of the conviction, 
and another chknce for a verdict of acquittal on a subsequent 
trial. If, however, the prisoner has-been deprived of his 



140 .-4- ALABAMA. .- 

■ 4- ■ : ; 

McCauley v.\Ti^e State. 



chance of a vordict of acq.uit|;a*by a jury who have beguii ^is 
4rial and heard some evidence, by the lawless discharge of 
that jury, there, is no remedy anywhere foj- this lawless 4is- 
charge, exeept to treat it as equivalent to an acquittal, ^o 
withhold the only remedy in such a case, is to surrendej- to 
the lawless ^ispretion of the judge the cojistitutional right of 
trial by jury. .- •» * 

We concede, that before; ia, ^uyy'is empanueled to tcyaorim- 
inal case, the couyt lias the discretionary -^wwer to sever the 
trial or continue the case ; " but," as the Supri3me Court of 
Massachusetts hay^ weM said, " when a jury, ife empanneted 

' for the trial of an indictment, the defendant the7i acquires new 
tights, which the court will protect." "When once put on his 
trial, and a jjiry sworn for iiat ^purpose, it is his 'right to have 
t/tem pass upon, his case. Their verdiet will be a bar to an- 
other .in.dictment for t^he same offence : a Twlle prosequi will not. 

• Mtf is entitled to this bar. The Attorney General, finding his 

vttvidence insufiicient, might discontinue for the purpose of 
commencing another •prosecuticm, and' then subjecting the 
defendant to another trial: This the lam will not permit. In 
t/ds stage of the proceedings, a nolle ^prosequi cannot be entered 

i*without the consent of the defendant." — Commonwealth v. 
Tuek,.20 Picli. So6 ; see, also, :^ount v. The State, 14 Ohio 296. 
fr^^^It is a well undeustood maxim of our law", say the Su- 

- pT^eme Court of Tennessee, "that 1*ie judg^es are to expound 
the law, and the Jury to ascertain the facts, neither of which 
has tiie power to.»i»te;i;fepe witfe the province of the otlk&c. 
The jury, m their dfeliberatki^ 'i^&mi thS facts, are as inde- 

i^ndent.of _th§ court, as tlie ju'jl^'e^ in detgrmimng the law, is 

.^ *he juiy ; and the Conse/^ence iSj that when a case has*^m 
submitted fo a jnry, there jt. must remain until it has been de- 
cided^by them, jar is with'drawn from their, consideration, not 

,-atih-e"will.and pkasur^.cf fht- caart, but* under circumstaMes 

justified by /a?^."~Ma^iala v. Thei>tate, 10 Yerg. 235. » • 

;Tae casee of Maliahi v. The State, siipra, and of -Ned v. "Kie 

St«tte, 7'P.^rt. 48J, tjiintain saclr a review of the authoriti^, 

^«inl so correct an exposition of the huv, en the subject under 

consideration, as to relieve ur from the citation of any great 

.-arra-y of author! ties. • 

The earliest American oases \\]ion the subject of the power 



JANUARY TERM^ 1855. ^ 

McCauley v. The State. 

of the court to discharge a jury without a verdid:, in cases of 
misdemeanors, which we have been able to find, are The People 
v"! Denton, 2 Johns. Cases 2^5, and The People v. Olcott, ib. 
301. In both these cSiEes,' the necessity for a discharge of the 
jury is one of the grounds of decision. It is the only defen*^ 
gillie ground; for the'other ground of decision was the bald 
assumption, that the power of courts to discharge a jury, in 
cases of misdemeanor^, is analogous to their power in civil cases, 
and pests in discretion.; • 

Both these decisioits were made in 1801, and whilst the 
justly distinguished Judge Kent was a giember of the Supreme 
Court of N"e^ York. ' He concurr(3d in the first case, and de- 
tivered the opinion in the last. He continued to be a member 
of the* same court .until 1805, when the same* question, in the 
case of a misdJemeanor, again came before that court, in 'the 
case of The People v. BaVrett, 2 Caines' Rep. 305 ; and not- 
withstanding Judge Kent and that court Had apparently been 
committed by the cases above cited from 2 Johnson's Case^i 
he and the whole ^onrt decided, that the discharge of a jiiry, 
in a case of misdemeanor, '' merely because there be not testi- 
mony sufficient to convict, with a view to another trial, falls 
within the reason, of none of the authorities", and entitled the 
prisoner to his dischpirge ; and the prisoner was discharged 
accoWingly. 

"But notwithstanding this signal and practical repudiation 
by that very able court of th^ doctrine " that the ^ower of 
courts to discharge a jury, Hk{j^fe of misdemeanors, is "analo- 
gous to their power in a"m7 case^, and rests" in 'discretion," — 
tbe error gf its promulgation w?is not entirely 6ured thereby : 
ft)r some judges have' followed that e^ror and adopted it dtf 
the authority of the case of The"People v, Olcott, without 
noticing or seeming to be awnre that it was practically, repu- 
diated by the* same court in The People v. Barrett, 2 Caines' 
Rep. 305. Other judges have adopted {he s^me error, -^ithout 
giving any reason for it. . < ■ • • 

We think it is a great mistake^ to assert that the common 
law made no substantial distinction between the power of a 
court to discharge a jury in a civil case, and its power to dis- 
charge a jury in the case of a mis'demeanor. It is universally 
conceded, that Sir William Blackstone was thoroughly ac^ 



142 ,v s ' ALABAMA, l --* .. 

MQCauley v. The State^ 



qijaiuted witU th^ oommon law. The distinction between trial 
by jury in civU cases, and trial by jury in criminal cases, is very 
clearly stated in his Commentaries. He says ; " The trial by 
jury is that trial by the peers, of every Englishman, which, as 
the grand bulwark of his liberties, is secured to him by the 
great charter. * * The an4;iquity and excellence of this trial, 
for the settling of civil property, has before been explained at 
large. And it will hold much strmiger in criminal cases; sincfe, 
in times of difficulty and danger, more is to be apprehended 
from the violence and partiality of the^ ju>4ges appointed by 
the crown, in suits between the king and the stcbject,- than in 
disputes between one individual and another, to settle the metes 
and boundaries of private property. Our law has, therefore, 
wisely placed this strong and twofold barrier of a preseniment 
and a trial by jury between the liberties of t%e people and the 
pi'erogative of the crowns — 4 Bl. Com. 349. 

He also says : "In many instances where, contrary to evi- 
dence, the juiy found the prisoner guilty, their verdict hath 
been mercifully set aside, and a new trial granted by the Court 
of King's Bench ; but there hath yet been no instance of grant- 
ing a new trial where the prisoner was acquitted, on the first." 
4 Bl. Com. 361. In The King v. Mawbey, 6 Term Rep. 639, 
the doctrine that " defendants who have been acquitted in 
criminal cases cannot be tried a secoad time", was statecj, and 
not denied or questioned. In that case. Lord Kenyon, C. J., 
asserted that, in offences great^ than misdemeanore, it ^ad 
been held, no new trial couWi bigranted, even in favor of a 
prisoner who. had -been coni'i^jed, but that in misdemeanors, a 
new trial could be granted iq^ favor of "those who have been, 
convicted," |n the same case, Lawrence, J., g^id, "Arguments 
drawn from civil cases are^iot applicable to the present.'^ 

In 1 Chitty's Crown Law 657, it is laid down, tlmt "a new 
toioJ, cannot, ii^ general, be g'ranted in fp,vor of. the prosecutor, 
after the defendaMt has l>cen acquitted, whether on an indict- 
ment for a misdemeanor or a felony, even though the. verdict 
appears to be against eyide»ce,.oi' ura^s .ijpou the qijsdireotion 
of the judge." , ♦, • .... 

The common la^v, aj to ^i,e power-to grant oejf. trials, ae 
fita.ted in tlip foregoing (3xtj;acts fr^om JJIacl^staiie and Chitty, 
has ever beep reooguized as.part of our law ; and oonsequeutlvj 



:h. 



JANUARY TERM, 1855.' ' 1^ ^ 

McCauley v. The StaU. 

np i\ew trial has ever been granted, or can be granted in thi^. ' 
^ta4;e, in. any criminal case, wliere the defendant has once been 
acquitted. . 

In a civil case, the court may, at its pleasure, and without 
liability to revision, set aside a verdict, whether for the plain; 
tiff or the defendant, and grant a new trial : and it is because 
the court possesses this unlimited (liscr(3tion to grant a new 
trial in a civil case, that it may, in such a case, before verdict,, 
arrest the trial, and order the cause to be tried by another 
iury. — Ex parte Edward Henry, 24 Ala. 638. 

*Our law allows an equal number of challenges to each party 
in a civil case ; iii the ease of a misdemeanor, six challenges 
are allowed to the prisoner, but ouiy four to the State. In a 
civii case, the verdict ought to be rendered for that party in 
whose favof there may be a mere preponderance of the evi- 
dence ; but in the case of a misdemeanor, although there may 
be a preponderance of the evidence for the State, the jury ought 
not to iind against the prisoner unless they are satisfied beyond 
a reasonable doubt of his guilt,— State v-. Murphy, 6 Ala. 845; 
State v^ Newman, 7 ib. 69. An appeal is allowed to either 
party in a civil case, from the ^nal judgment ; but no appeal 
or writ of error is allowiBd to the State, from a judgment ren- 
dered on a ^^erdict of acquittal in the case of a misdemeanor,' 
although the prisoner, if convicted, is entitled to a writ of error. 

As our law ever has made, and still makes, such a broad 
distinction between a civil ease and a case of misdemeanor, 
we ought not to .rQcognize as authority any decision whicli is 
founded upon tlie assumption that there is no distinction, in 
these two classes of cases, as to the power of the court to dis- 
charge a jury before verdict rendered* The unavoidable effect 
of such decisions would be, to arm the' judges of the primaiy 
• courts with a tremendous power to oppress the citizen, and 
to place the improper ■exercise of* this terrific power beyond 
the •' superintendence and coutVol" of the Supreme Coflrt,and 
ef the laws and constitution of the Stat§. ; 

>,->t6«r .constitution guarantiee the rigiit o^ iricd. by. jury " m 
«l/r criminal prosecutions" (for misdemeanors, as well as for 
capital offences). This right must remain inviolate. New 
and arbitrary methods of arresting trials, in criminal cases, 
even in misdemeanors, cannot be tolerated. "These inroads 



144 itABAMA.- 
» 

McCauley v. The State. 



Upon this sacred bulwark of the imtion a're fundamentally op- 
posite to the spirit of our constitution ; and, though begun iii 
trifles, the precedent may gradually increase and spread, to 
the utter disuse of juries in questions of the most momentous 
Goncern."— 4 Bl-.'^Jom. 350. 

Our opinion is, that, in this State, any disdharj^e of a jury, 
which w(iiTld protect' a* "person indicted for a capital offence 
from a subsequent ti'ial, will work the same result in favor of 
a person indicted for g, misdemeanor ; that, in this respect, 
there is no middle ground— no difference between a capital^ 
case and a c5,se of misdemeanor, as the constitution guarantees , 
the right of trial by jury "in all criminal prosecutions"; that 
any unauthorized discharge of a jury, in anj criminal case, is 
equivali^nt to an acquittal ; that the court possesses tlie pOVer 
t6 discharge a Jury in cases OftieceBsity,*'or when the prisoner 
consents to it, i)ut in no "other cases ; that the discharge of a 
jiiry without the consent of the prisoner, and without a Tieces- 
si'ty for the dischai^ge, is unauthorized ; that the sudden ill- 
ness of a juror, or of the prisoner, so that the trial cannot 
procefed, are ascertained cases of necessity, and serve as exam- 
ples to show what the law means by' a case of n(^cessity. ' 

We GomC now to tl\e last question 'for our consideration—^ 
that is, v^ether the special plea is good. "Although it is i 
gefneral rule, that 'the allegata and probata must correspond; 
and that a pjirty need not allege more than he is bound to 
pTove, tet the rule is not of universal applicaticta. : sometimes 
a party is required to negative tlie existence of a fact, the 
oriw5 of proving which rests upon 'his adversary." 'Thus; when* 
the* surety sets up as 'a d'efence an 'extension of the time of 
pjlyment given' by the, Creditor tto hiS principal; the Surety 
imist ttver that the indulgence was given without his consent. 
Car}>enter v. Devon,' G Ala. 71'8. So, when a prisoner pleads 
^at a' jury'^was "discharged'by the coul-t, after the trial had 
Bef^h, *e 'mtis't not oilly aver 'tliat such disohaTge was- without 
hi-s consent, but he must go fai'thef, and aver that such dis* 
chai'ge-was withoiit any necessity. The plea in' this case does 
^o't negative the exi'stolicc of any necessity for the' discharge 
^ the jury ; and for this omission in the plea, it is bad, and 
^lief e was-no Brnor ^n snstainfng the demurrer to it, Ih «ii 
o^her respectg, the plea is suflScient. i**/» 



-H. 



JANUARY TERM, 1855. iflflb 

Ex parte Vincent (a slave). 

^ After several defendants are put on their trial before the 
same jury, the court cannot allow a severaijce, and withdraw? 
the case as to one, of the defendants from that jury, without 
his- consent, unless there existed at the time such a necessity 
as would hare authorized the court to discharge the juryj ae 
to that defeudant, without his conseut^aiid without a sever- 
ance. Such withdrawal of the case of one defendant fr^m 
the jury is a virtual discharge of the jury as to him whoae 
case is'^o withdrawn, and its legality "tnust 'be determined 
alone by tlie rules which determine the legality of any other 
discharge of ar juiy ux a criminal case. ^ • ''^• 

If the special plea is amended by^ifisertiHg in it an addi- 
tional averment negativing the existence of any necessity far 
the withdrawat' 0i the ease from the j«ry, ijwill then bef*k 
good plea. - 

For the error in tbfe charge of the court below, above re- 
ferred to, its judgment is re^rers^d, ^nd th« cause remanded. 
», .• ^ * • ' * * - . ' 

. CHILTON, C.^*^I .^Jgi-ee in the resul^^to-wit, that the 
playing was not at a public place, and that the plea, failing to 
negative, the idea that the judge, in ordering the severance, 
acted within the scope of his legal discretion, was properly 
held bad on demurrer! A&. to ike power of the court in with- 
drawing causes from a- jury, aud whethfer this power is the 
same i^ respect of felonies and cases of mere misdemeanor, I 
(Jesire to be Cipnsidered i^ expressing^oo opinion, since in my ; 
judgment the^ queaitiona are -noji- raised ujion the present 
record. •,• . ^ » . ' • • 

^^. ^ . < V ^ ' " ^ ' 

ia ■ 

Mi 

^''' 'Ex fAiSTE 'VINCENT (i' slave). 

♦ 4. . '.'■■..-. , -^^ 

. )^A.^o-8toried houae of-whieh, the^&ont room on the first floor was used as 
a store:ljouse, aud tbe back, room (wbich also. CQiitained a few boxes of goods, 
and communicated with tfte front by a door id the partition) as a sleeping 
room by the owner, while his clerks, who were nnmarried men aud took their 
meals at a hotel, slept4n the rooms onr the second floor, — held a dwelling- 
house, both within the cooimoa^law- defldiition -of burglary, and under sec- 
tions 3o08-9 of t^e Gqde. - .. ,...-. 

2. When words are used ia a statute which, when used in refetence to the 



146 ALABAMA. 



Ex parte Viacent (aelave). 



,^, jpaiue subject, have obtained a fixed and definite meaiving at common law, the 

inference is that they were intended to be usefl in their common-law sense. 
3. The term " dwelling-house,'' as used in section 3308 of the Code, has fae 
same meaning as in the definition of burglary at common law : and the fol- 
fi iowing section (8309) was intended to soften the rigor of the old statute 
%^ (Clay's Digest, p. 472, § 4), by narrowing the meaning of the term, in requir- 
ing that there should be a white person in the house at the time the offence 
"was committed, and that the building should be joined to and parcel of the 
f»Wlweirmg^hou8e. , . , 

Application for the writ of habeas corpus, or other appropri- 
ate? procesa, to obtain the petitioner's discharge from custody 
in the county jail of Talladega under a charge of burglary. 

The petitioner alleges, that ho is a slave, the property of 
.^Q. Samuel F. Rice ; that he was arretted, on the 28th of 
December, 18o4, by a constable of said county, under a war- 
rant from a justice of the peace, which was issued on the afiS- 
daviit oi one Samuel Adlet- that petitioner " did, oa or about 
the 2d day of December, commit the crime of burglary, or 
break open a store-house the property of said Adler" ; that 
the said justice, after hearing all the evidence adduced before 
him, committed petitioner to the county jail, as standing 
" charged with the crime of burglary'' ; that he afterwards 
made application to the Hon. A. J. Walker, Chancellor "of 
the Northern Chancery Division of the State, to be discharged 
from custody upon habeas corpus, but the said chancellor, after 
hearing the evidence, remanded the petitioner to jail ; that 
petitioner, by his counsel, excepted to the rulii^g of the chan- 
cellor in refusing to discharge him, and at his request the 
chancellor signed and sealed a bill of exceptions, which shows 
what proceedings were had before him, an4 which is prayed 
to be taken as a part of his present petition. This bill of 
exceptions, as copied into the transcript appended to the peti- 
tion, is as folio W9 : . ' . 

" The prisoner, by his counsel, for the purposes of a trial be- 
fore me, admitted that he did, some four or five weeks ago, a 
short time before the trial had before the justice of the peace, 
break into the front room of the' house, 6n the square in the 
town of Talladega, known as " Adlers store", in the night-time, 
and took therefrom goods. It wasproved, that Samuel Adl^r 
and his brother, at the time the house was so broken into, 
were sleeping iu the back room of the sajd store-house, and, 




JANUARY TERM, 1855. . lAl 



Ex parte Vibcimt (a slave). 



twd Or tiiree young gcntlemeil (clerks in the store Of Samuel 
A'dlef) were sleeping abore stairs in the'said house j that said 
kouse was divided below into two rooms by a pai^tition ; that 
these two rooms were connected together bj a door iij the 
partition ; that ki the fi*ont room, which was upon the square 
in the said town, the «atd Adler Imd, at the time said house 
was broken into, opened a stock of goods, which he was sell- 
ing £Lt retail, and* that in the back l-oam below there* were 
Some boxes of shoes, put there "in cOnseqiieiice Of want of room 
in the front room; that said Adler and his brother, and the 
saM clerks,' tp'ei'e at the said store, engaged in selling goods, 
^ind carrying on the trade of retail merchants ; that they were 
$0 engaged at thd.time said house was broken into, and some 
time lioth 'before and since, and "that tliey slept there'; that 
Samuel Adler slept in a bed in fhe back room below, and the 
clerks above stairs-; that they always slept with the door 
opiBn in the partition between thfe twp rooms, and it was open 
when the hous6 was broken into ; that the said Adlers and 
their clerks ate at the hotel in said town, except on Sunday 
mornings, when their meals w6re usually sent to them fVom 
Said hotel ; that their washing was not done at the said house; 
that the goods were taken from the front room ; that all the 
sai'd -persons were uamarried men ; that said hotisc was called 
in the town, and known, as ** Adler's stoj'e-hou5?ie," and that 
Samuel Adler himself called it his store ; that on the trial of 
said slave two justices of the peace presided, and that they 
were requested by said slave, through his counsel, to call in the 
probate- judge, and summon a jury, and try the case npqn its 
merit-s, which they refused to do, and committed said slave to 
jail to answer an indictment -to be preferred at the next term 
of the Circuit Court of Talladega ; that the'said Samuel Ad- 
ler, in the affidavit made to procure a warrant for the arrest 
of'«aid slave, called the said house ' a store-house.' The wit- 
nesses said, that they had not heard said house called a dwell- 
ing-house except on this trial. These were all the facts 15e- 
fore'me as chancellor; and the, said slavfe thereupon, through 
his counsel', moved foi^ his discharge. I refused to discharge 
him from imprisonment, and remanded him to jail ; and the 
said slave, by his coimsei, excepted." 
In the petition presented to this court, it is also alleged 





148 jj^^, AI^ABAMA>;jy'j^L 

" * Ex partp Vincent (a slave). 

^_ . : 

tiiat, " in addition to the evidence set out in said bill of excep- 
tion^, there was e^iidencc tending to show that petitioner did 
B,ot, break and enter §aid store-hou^e." i,^ 

' ^ Morgan & mabtin. for tl>e prisoner : 
,^, This application i^ made H^Don the authority of the follow- 
ing cases: Ex parte Edward ^tiff, 18 Ala. 4^4; t^x parte 
Groom & May, 19 ib.oi^l . ^The question presented is, whether 
tl^e petitioner js legally iijjprisoned, and is to be lield to an- 
gw;er an indictment to be 4>roiEerred at, tlie i|ext term of the 
Talladega "Circuit Oom't, for the offence prescribed in section 
3308 of the Code; or, whether the fcicti^ if the evidence is 
sufficient to con.vi«t; 4q aot|fiho*^.that he .committed the o^ 
fence -prescribed bv seT^tiou 5310. If the evidence shows that 
he is guilty under ^the latter section, it was the duty of the 
justice before, wljcm he ?vas tried and committed, to have as- 
sociated with himself ^he judge of probate and another jus- 
lice, and put the prisoner uppii his» trial as requi],'ed by sec- 
ti^ 33 1§. This the justice, was re^u^ted to do, but refused, 
apd committed tlie prisoner to- answer a charge of burglary. 

, We may concede, that tire facts here show^ Avould haya 
aiaounted' to burglga-y at the oommpn law,-^l Euss. on Or., 
^. 784. Our jjenitentiary code, as found iii Clay's Digest, 
iaopts the common law, by simply declaring that " every per- 
son who shall commit the crime of burglary," &c.-— p. 426, 
§ 64. And in reference to slaves, it also declared that " evej;y 
sla,ve who ghall commit the crime of burglary," &c. — p. 472, 
I 4- ;The Co4e, however, changes the law on tliat subject as 
to white person^ and defin^ sgecific^Jly what shall amount to 
burglary in thi§ State. — Code, § 3183; There is, then, in this 
State, no such crime as^ burglary as it existed at the common 
]j|w. :,.the defiuitiojis are wh^iQlly, different, jJud the punishment 
is different, even as to whit,e persons. From this the infer- 
eoce^is cleaj[v, that the Legislature was, not satisfied with the 
la,V «0 it was found in our old statute apd at (jommon lavFi^^ 
Rutland t. Mindon, 1 Pick. 154. So far, then, as slaves are 
coticerneji, the^i'C is no such oifence as burglary of which they 
c;a« be jgfiiltij^ 

It is contended, however, that the defendant is guilty of the 
0^oi£c statutf^^ol^js^ 49&fi^ ^y section 3308 of the Code. 



JANUAUt TirR¥, 1866, M 



The "terra" ^Mwening-house", in tlie definition b? l5nrgiaTy at 
common law, has a teclmioal meaning, including adjoining 
hoiifees,-out-koitses tiSc^iin' cOn'hection with the dwelling, and 
all other house? within the curtilage : but it is clear that such 
is not the strict, literal, or popular meaning of the term. — 1 
H^yw; 241.- Th^ malii question here,' then, Js;' Iri what sense 
is'the term used in this section of the Code? We insist, that 
it must receive a strict, literal, and popular construction — that 
it was used-iri the sen^ fei which it ib commonly .understood in 
the' community'; because, 1st, such ig the well-established rule 
in the construction of all statutes, — a~ rule founded upon the 
common sense of jtistice td lhos(^ who arc to be governed by 
the law.— Favers v.GIas's, 22 Ala. 624 j TKent's Coin. 46 if 
9 Pick. 2^5 J -r Mass: 5^3'; 1 Selden's "R. 9." H^nce. in th(? 
interpretation of ancient statutes, the safest mode is to' g(T 
back and ascertain in what sense the langimge in which the^ 
are clothed was undorstooti at the time of their adoption.-^—' 
Smith Qn Statutes, p. 63t), §482. The great desideratum is, 
to arrft'eat the intention of the law-maker ;'\ind, as il'il^^W^' 
be presumed that he addressed hims'elf to those who were td* 
be governed by the Idws, in language which' they would un- 
derstand, there is no'^afer mode'of arrivitig at that intentioil 
than by aCsc'fertaining^the meaning given to the language bV 
the people themselves.— B. §§ 488, 747, 748. The bare men- 
tion of a " dwellifig-house^' suggests to every mind a houg^' 
mainly and expressly (not incidentally) intended for the re^- 
denceof a family — a house withdrawn from the active bustFe' 
of biisiiiesp ; a hoase 'wh^e the- cte'talns of privacy and retire- 
ment are drawn around its inmates, who there instinctively 
feel a security alforded by no other situation in life ; a house, 
too, whicli we approach with a kind" of innate reverence and 
respect: It does not mean a lav^-office, in which a young man 
may happen to sleep ; no^i a stable, which may be occupied at 
night by -an cfstler ; not a regular retail store, on the publfc 
square in a village, in "tlie back room of which a clerk may 
happen to sleep, and to which the ^blic are invited and so- 
licited to come day' and night;' *''""^' ^ 

Statutes are not to receive a teelmical construction, unless 
it is plainly intended by the Legislature. — 8 Pick. 370 j id.' 
514 ; 4 Mass. 471. Modern statutes, even in civil cases, are 



150 y - *^ ' ALABAMA. 

Ex parte Vincent (a slave). 



to be construed strictly.— Bradley v. Clarke^ 5" Durn. & B5* 
156. Penal statutes are to receive lA strict iij-terpj-etation, in 
favor of the defendant ; general words must be restrained in 
his favor-; because it is better that the courts should fail to 
punish whete the l^w-raakers intended punishment, thajQ tliat 
the courts should punisli where the law-makers had not in- 
tended that it should be done. — Staith on Statutes, pp. 854,to 
85Tj 8 pick- 870, 514; 4 Masa» 471. And where th^re^s a 
doubt as to the construction of a statute, it will never be so 
construed as to create a felony, or to increase the punishment. 
3 Mass. 254 ; 17 ib. 360; I Pick. 420. 

Again ; the Code must be treated as an entire act, and 
its several parts be construed in pari materia. Every part of 
a statute must be looked to, in construing any portion of it. 
9 Bac. Abr. 239; 4- Gill. & John. 152. Construing the Code 
thus, it will be found that the offence committed here is fully 
and entirely covered by a succeeding section (3310). The 
term "other building", as here used, evidently includes " store- 
house", and excludes "dwelling-house"; and if the defendant 
had been proceeded against under this section, he -could not 
h^tvc defended oh the ground tljat the proof showed him to be 
guilty under segtion 3308. The offences prescribed in these 
two sections are. wholly different; .the punishments are differ- 
ent ; the courts which .try the offe^&der are different. One 
offence is not included in the other. — 7 Mass. 523 ; 8 Pick. 
37p. If a store-honse had been specificaU^^ i^entioned ii) sec- 
tion 3510, it is eridetft that th« proof here would not warrant 
a conviction under an indictment for. breaking and entering a 
dwelling-house', and yet a. store-house would not. then have 
been m,9re clearly ineluded, tha^j it how is under t^-e term 
"any oier building."— BHsh. v. The State, I'S Ala.415; Milk 
V. The. State, 20 ih. 86. The Code was intended to introduce 
a system of statute lawg, plain and simple in their character, 
divested of all ^echnioalities, and speaking wha,t they mean ; 
and siysh has been the coiyse of construction^ — Alabama <fe 
Tennessee JKiver Railroad Co. v. Harris, 25 Ala. , 

TJi'e constructio4i for which we contend is reasonable and 
just, while the opposite is unreasonable and unjust ; and when 
this is the case, the presumption is in favor of the former. — 
Commonwealth v. Kimball, 24 Pick. 366. 



JANUARY TERM, 1856. \6t 



Ex parte Vincent .(a slave). 



M. A. Baldwin, Attorney General, eontra :. - -^ ' '• •' 

1. The question is, Was the store-house a dwxlling-house, 
within the meaning of sections 3308-9 ? Burglary, as defined 
by ihose sections of the Code, does not alter the common-law 
requirements to constitute that offence, except in this ; there 
must be some white person in such house at the time the of- 
fence is committed, and the building must be joined to, and 
part and parcel of the dwelling-house. 
• 2. The term dwelling-house has a technical meaning, and 
not that meaning which is attached to it in the common ac- 
ceptation. Every house for the dwelling or habitation of 
man is taken to be a dwelling-house, in which burglary may 
be committed. It is not necessary that a family, or any par- 
ticular number of persons, lodge in or inhabit the house. Ev- 
ery house in which a man usually sleeps is considered a dwell- 
ing by the common law. — 3 Humph. 379 ; 1 Hayw. 242 ; 1 
Hale's P. C. 557; 1 Leach 396 ; 1 N. & McG. 583; 1 Hawk, 
ch. 19, § 18, pp. 133-4-5 ; 4 Black. Com. 225-6 ; 2 East 496 ; 
2 lioach 931. The definition of a dwelling-house in defining 
the crime of arson (in section 3186) is the correct one — to- wit, 
"Any house, prison, or other building which is occupied by a 
person lodged therein at night." 

GOLDTHWAITE, J.— The building broken into was a 
house of two stories, in which one Adler kept goods for sale. 
.The house below was divided into two rooms, communicating 
by a door in the partition which divided them. The goods 
were in the front room, which was used for carrying on the 
business, and the back room contained a few boxes of shoes, 
and at and before the time of the breaking was used as a 
sleeping room by Adler. The second story was slept in by 
the clerks of the store, and the proof was, that they were all 
single men, and took their meals at a hotel in town, except 
on Sunday, when their breakfasts were usually sent to them ; 
and that their washing was done away from the house. The 
only question upon these facts is, whether the house was 
a dwelling-house within the meaning of section 3308 of 
the Code. 

At the common law, any house was a dwelling or mansion, 
in a, burglarious sense, in which any person resided, or dwelt ; 



iSit .^-'^ ALABAMA l^f^ 

Ex parte Vincent (a slave).' 

S,nd witk refereuoe tt> iihe offence which could only be com- 
mitted in the night, we tliink the true test is, whether it was 
permanently used by the occupier, or any member'of his fam- 
ily, as a place to sleep iu. Tl\us, if neither the owner, nor 
any member of his family, slept in the house, k is not his 
dwelling-house, though he had used it for his meals and all 
the purposes of his business. -^Rex v. Martin, E,. & R.. 108. 
So burglary may be conimitted in a lodging room (1 Leach 
8^) ; or in a garret used for a workshop and rented together 
with an apartment for. sleeping (1 Leach 237). .So to break 
^ • and eater a shop r^t'pajrpel of the mansion house, in^w^hich 
the shop-keeper never lodges, but only works or trades there 
in .thp day-time, is not burglary, but only larceny ; but if 
he; 'or hj^ servagat, usually or often lodge in the house ^t night, 
it is then a mansion house in which burglary can be commit- 
ted.-— -1 Hale Pv C^-557-^ Jn<^eed, jt is obvious that there 
CQuldi in general^ be .J30 • other ^tftsts than the one we have 
mentioned as to single persoijs, as they could not properly be 
said to live or dwell in any house in which they did not sleep; 
air4 if t^c house which • was ■ permanently used by them fc^ 
that pui'pose was not their dwelling-house, thqy could ]iq,ve 
none. We have no doubt, that a,t the^ common law, upon the 
facts as stated, the building must be regarded as the dwelling- 
house of Adler. 

But it is said, that the .term dwelling-house, in section 3308 
of the Code,, is npt, used in the same sens^ in which that terrn^ 
is used at the common law with reference to the offence of 
burglary. It must be remembered that, at the. common- law,- 
the crime of breaking into a dwelling-house in the night-time, 
with tlio intent to steal or commit a felony,- was called bur- 
' ' glary (2 East's P. C. 492-3) ; and in view of the mischief to 
which the crime relates, we have seen i\\a,t the term " dwelling- 
hi)}tse>" received a teclinical signification, differing in some 
respects from its popular meaning. By the old law (Clay's 
Dig. 472, § 4), this offence, when committed by a slave, was 
punished.with death. By the CodQi(§ 330^ it is provided, 
that " every slave who breaks into and enters a dwelling- 
house in the night, with the intention to steal or commit a 
ffilcmy, ^ust oil opnxiQtion suffer death";, and by the follow- 
ing section (3309), that " no building must be deemed a dwell- 



JANUARY TERM, 1855. 153 



Ex parte'VInceBt (a slave). 



ing-house, or any part tliereof, unless some white person is in 
such'house at the time the act is done, or tlie oficnce com- 
mitted ; and no building which is not joined to and parcel of 
such dwelling-house must be considered as infeluded in the 
preceding section." 

If section 3308 stood alone, we should give to the term 
precisely the same meaning which it bears in burglary proper, 
for the reason, that the statutory offence would differ in no 
material respect from the common-law crime. The same 
words ar6 used that are found in the definition of burglary as 
given by the text-books ; and when words are used by the 
Legislature in relation to a matter or subject which, when used 
in reference to "the same subject at the common law, have 
obtained a fixed and definite meaning, the inference, we think, 
is irresistibly, that they- were intended to be used in their 
common-law sense. It. would be ,a strange thing, if the legal 
sense of " breaking into a dwelling-house in the night-time", 
meant one thing by the statute, and another by the common 
law. 

If we had, however, any doubt upon the question, it would 
be dispelled by section 3309. At the tfommon law, not only 
the dwelling-hoii^ proper, bijt all •other buildings Within the 
curtilage, or some coH^mon fence, were deemed part thereof 
(2 East's P. -C. 492-3) : and consequently a barn, stable, 
kitchen, or smoke-house^ although separated from the main 
building, might be part of the dwelling-house within the mean- 
ing of burglary. But it; is evident that neither of the^e 
buildings would, in - 6uch- qase,. .be a" dwelling-house in - tire 
popular acceptation of that term ; and on the supposition that 
it .was used in tliat sense in the "pi'eceding section, why should 
the Legislature say*: -it should 'not apply to oertain cases to 
which it could not apply if used in its popular sense only ? 
The meaning of the two sectioils, taken tog^eth^er, is obvious. 
The old law, which punished capitally every case of burglary 
when committed by fi slave, was regarded as too severe, and, in 
order to soften its rigor, the meaniag of the dwelling-house 
under the former law "was narrowed. It^was required that 
there should be a white person in the housd at the time when 
the act was committed, and also that the building must be 
actually joined to and parcel of the dwelling-house. Subject 



IH ' ALABAMA. 



McGebee v. The State. 



to these qualifications^ we must construe the term referred t» 
in section 3308 as meaning the same as that term .in burglary 
at the common law. . - .^ ' 

Motion refused. • ' - . 

Rice, J., not sitting. 



McGEHEE vs. THE STATE. 

1. Under an indictment for resisting process, if tiie time of ttie commission of 
the offence is shown by the indictment itself to have been after the return 
day of the process,' it is fatally defective on error. 

Error to the Gircuit Gourt of .St. Clair. 
Tried before the Hon. EJdmund W. Eettus. 

Thomas J. McGehee, the plaintiff in -errxg*, was indicted 
at the Spring term, 1852, of the Circuit Court of St. Clair, 
for resisting process in the hands of a nonstable. The offence 
was charged' to'havebei&ft'committed on the- first day of March, 
1852 ; while the process, which is set out in the indictment, 
was returnable ^n the tenth day of Januai-y, 1852, before 
the justice of the pea^ce. who had: issued it. Haying been 
found guilty by the verdict of a jury, the defendant moved in 
arrest of judgmebt, " because the indictment does not charge 
any offence agaipsit him ; but defendant not being in court, 
the motion was oyerruled, and' defendant's counsel excepted." 

B. T. Pope, |(w: the plaintiff dn error. 

M. A. Baldwin, Attorney General, contra. • 

CHILTON, 6. J/— TJie indictmlent is fatally defective, the 
alleged resistajice being" charged to have been committed af- 
ter the process had spent its force and was functus officio. 

Judgment reversed, f^nd cause remanded. 






JANUARY TERM, 1855. *fl6 



Darling Jones v. The State. 



DARLING JONES vs. THE STATE. 

1. Under an indictment for gaming, the defendant may be convicted on proof 
"that he and another each put up money and threw dice for it, by placing 
the dice in a box and throwing thrfee times each, the one throwing the high- 
est number taking the money'" ; although it is also shown " that the mode 
of procedure and of throwing Ihe dice was the same as in the casfe of raflSing 
for property" • 

Appeal from the Circuit Court of Pickens. ^^ 

Tried before the Hon. Geo. D. Shortridge. 

Alex. B. Clitherall, for the appellant. 
, M. A. Baldwin, Attorney General, contra. 

CHILTON, C. J. — The defendant was indicted for gaming 
at one of the places prohibited by law. It was proved, " that 
he and another, within twelve months before the finding of 
the indictment, at a store-house for the retailing of spirituous 
liquors in the county of Pickens, each put up money, and 
liirew dice for it, by placing t.he dice in a box and throwing 
ttree times each, — the one throwing the highest number 
taking the money. ItVas shown, that the mode of procedure 
and of throwing the dice was the sam^ as in the case of 
raffling for property." The court charged, that if the jury 
believed the evidence^ the defendant \ras guilty ; and such is 
our opinion. It was a game played with dice in the strictest 
sense of the term, and, although conducted upon the principles 
of a raffle, it was not the latter. A raffle, it is true, is a game 
usually played with dice ;. but in this, property or something 
of value is put up as the thing to be raffled for, the owner 
receiving the value in the sal;C of chances. Here the parties 
bet money upon throwing the dice, which money is to be won 
by the party throwing the highest number. Why the Legis- 
lature should virtually license by taxing the one, and condemn 
the other, is a question whicli addresses itself to the Legisla- 
ture and not to the courts. 

Judgment affirmed. 

•*•< i ■•■■■• ^ ,'Jt^f ■■■I'll. / > w -^^ ■• ,.,.<«•. I .. vi ■' . \ J"« ^i.' ■ »■ ' »»' i- ' 



f^ ■'-■'— ALABAMA.! 



Ex parte Gist. 



Ex PARTE GIST. 

1. The thirty-thjrd section of the judiciary act of 1789, (U. S. Statutes at Large, 
; vol. i, p. 91,) which empowers justices of the peace and other officers therein 

named to arrest and commit (or bail, as the case may require) persons charged 

-with a violation of the criminal law of the United States, is not unconstitu- 
• tional : the authority thus conferred on justices of the peace is not -'judicial 

power" within the third article of the Federal constitution, nor does the ex- 
. erciee of it make them Federal officers within tl^^ second clan^ of the secoQid 

section of the second article. ..^, V^ ^- ,.. ^^ ,.,y ,;, .^^. .Vj,,^,-; .', „^,^j. 

Application for tKe Afrits of habeas corpus- audi certiorari \xi 
bring before this court (with the body of the petitioner) cer- 
tain proceedings h^d before the Hon. A. *J. Walker, chan- 
cellor, <fec., on the V petition of Jeroine B. Gist to obtain his 
discharge from confinement in the county jail of Madison. 
The petition averred that the prisoner was arrested by the 
United States marslial of the" Northern, District of Alabama,' 
under a warrant issued to him by a justice of the peace irf 
Madison county, upon the affidavit of the postmaster at Hunts- 
ville charging'said Gist with having robbejfl the United States 
mail ; and th'e ground of the application was, that the justice 
had no authority to act in the premise^ The chancellor re- 
fused to discharge the prisoner, who MURsifttitions this court 
for Mief. ^ w^*.KH 

•'*• Robert C. BRiCKELk for the' petitioner: 
"^The power conferred" by the 3Bd section of th^ "juidiciary 
del" \ipon justices of the peace, is, to arrest, imprison, or bail, 
as the case" may require, persons chai'ged ^YitTl a violation of 
fh6 criminal law of the United Siates. The power thus tbU- 
ferred is judicial, as contra-distingliished from ministerial. The 
mere arrest may b(5 ministerii^l • but the iiiiprisonment, or 
holding lo bail, is judicial. * Under this act, the justice miist 
inquif ef whether a crime or offeAbe against the United States 
has been committed, — whether there is reasonable ground to 
believe that the person charged committed the offence ; and 
must then determine whether the offender shall be bailed, and, 
if bailed, in what sum. To determine these matters^ he must 
hear evidence ; and hearing evidence includes tjie power to • 



JANUARY TERM, 1855. 157 

Ex parte Gist. 

determine what is admissible, and what inadmissible evidence. 
The exercise of these powers, no matter on whom devolved, 
is the exercise of judicial power. In 1 Salk. 199, it is said, 
" Whenever a power is given to examine, hear, and punish, it 
is a judicial power, and they in whom it is reposed act as 
judges." "A public officer, lawfully appointed to decide liti- 
gated questions of law, is a.judge." — 1 Bouv. Law Die, p. 724. 
This court, in Butler v. Foster, 14 Ala. 325, say, that the au- 
thority to admit to bail cannot be delegated, " because a jja- 
dioial officer cannot delegate to another the powers and au- 
thority entrusted to him." 

If the power be judicial, it is a part of the judicial power 
of the United States. This cannot be controverted. It is 
the law of the United States that has been violated ; that law 
creates the offence, affixes the penalty, and provides the mode 
of arrest, trial, and conviction. No such offence is known to 
any other law. The law is designed for the protection of a 
departraetit of the United States Government — a department 
exclusively under the control of that Government. Then, if 
the power exercised be a part of the judicial power of the 
United States, the inquiry is. Can Congress confer any part 
of the judicial power of the United States on State tribunals? 
The constitution provides, that the judicia,! power of the 
United States shall be vested in one Supreme Court and such 
other inferior courts as Congress may, from time to time, or- 
dain aad establish. This clausfe of the constitution has under- 
gone a judicial construction, in Martin v. Hunter, 1 Wheat. 
323 ; in which Mr. Justice Story holds, that it is the duty of 
Congress .ta vest the whole judicial power of the United 
States in courts established by itself. On page 328, he pro- 
pounds this inquiry : " How otherwise could crimes against 
t^G United States be tried and punished ?" On page 336, he 
says : " No part of the criminal jurisdiction of the United 
States can be delegated to State tribunals ";" and on page 330, 
he says : " Congress is bound to create some inferior courts, 
in which to vest all that jurisdiction which, under the consti- 
tution, is exclusively vested in the United States." The test 
of this exclusive jurisdiction is shown on a subsequent page 
(335) to be this : " Had the State courts, before the adoption 
of the constitution, jurisdiction ? and does the case arise ims 



158 ALABAMA. 



Ex parte Gist. 



der the constitution, laws, and treaties of the United States? 
If the case arises under the constitution, laws, and treaties of 
the United States, and the State courts had not jurisdictioB 
prior to the adoption of the constitution, they have it not now, 
and it cannot be conferred on them by Congress." In this 
case, the State courts, prior to the adoption of the constitution, 
had not jurisdiction of the offence charged against the peti- 
tioner : it is impossible that they cduld have possessed such 
jurisdiction, because the offence itself did not then exist ; it 
is created by a law passed pursuant to, and in execution of, a 
power delegated by that constitution l!0 the General Govern- 
ment ; it is a eonseq-uence of a department established by that 
Government, and designed for its protection. In the case of 
United States v. Lathrop, 17 Johns. 4, C. J. Spencer holds, 
that State courts have no jurisdiction of criminal offences 
against the United States, "nor of the penal law of the United 
States ; nor can jurisdiction be conferred upon them by Con- 
gress. That case was a suit instituted to recover a penalty 
given by an act of Congress, which authorized tuits therefor 
in the State courts. A similar decision was made in Ely V. 
Peck, 7 Conn. 239. > . 

^•' 'The precise question here presented arose in Almeida's case, 
before Justices Hanson and Bland, in Maryland, in 1817 ; 
their opinions may be found in the 12th vol. Niles' Register, 
pp. 114, 231". In that case, the "petitioner was discharged, 
because bis arrest aiid coramitfnent by a State magistrate, for 
an offence against the United States, were -unwarranted by 
law. Subsequently, Judge Cheves decided the case of Ex 
parte Rhodes'; holdings that the arrest and commitment under 
similar circumstances were legal. His opinion, which will be 
found in r2th vol. Niles' Register, p. 264, is rested on two 
grounds, viz., that the duty performed by the justice of the 
peace is not judicial ; and that he, as a judge of a State court, 
oould not take cognizanoe of the- case. The argument is, that 
justices of the peace were originally m^re conservators "of the 
peace, and that the power which they exercise under the act 
of Congress is merely incipient and ancillary to the judicial 
powers of the United States. In determining whether a par- 
{ienilar power is judicial or ministerial, it is immaterial to 
faquire on whom it is conferred, or the character of the officer 



JANUARY TERM, 1855. 169 

Ex p£W"te Gist. 

by whom it is to be exercised : it is the duty to be performed, 
and not the character of the officer performing it, that fixes 
the distinguishing- character of the duty itself. If an inquiry 
into the character of the officer performing the duty is mate- 
rial, is it not apparent from the chameter of the officers upon 
whom this duty is devolved, concurrently with the justices of 
the peace, that the duty is judicial ? By the act, this duty is 
to be performed" by any justice or judge of the Ubited States, 
or by any justice of the peace." Did Congress intend to de- 
grade its judicial functipnaries into mere ministerial officers 
of the courts over which they preside? But, says the judge, 
the power to be exercised is only jncipient and ancillary to 
the judicial power. Coneede this to be true, and it does not 
alter the oase. The importance of the duty is not the ques- 
tion. , What is that duty ? and how is it to be performed ? 
ar^ the inquiries. A man may exercise judicial power, ia 
determining litigation involving one dollar, equally with him 
who, determines litjgatiou involving one thousan.d dollars. 
The function he is required to perform is, to h^ar, weigh, and 
determine the effect of evidence. If sq, then his power — his 
duty — is judicial, not ministerial. 

Suppose we concede that the justice acts ministerially;- how 
does that affect the question ? Of what power is he the min- 
isterial officer? Certainly not of the State of Alabama. 
Then he must be the ministerial officer of the General Gov- 
ernment. An office is a charge or trust conferred by public 
authority. — 7 Porter 371. Bacon and Bouvier define an of- 
fice to be, a public function or employment; and whoever 
exercises this function or employment by legal authority, with 
the right to take the emoluments appertaining thereto, is an 
officer. If he be an officer. Congress had not the authority 
to appoint him. By the constitution, the President has the 
authority, by and with the advice and consent of the Senate, 
to appoint " all officers of the United States whose appoint- 
ments are not herein otherwise provided for ; but Congress 
may, by law, vest tlie appointment of such inferior officers as 
they think proper in the President alone, in the courts of law, 
or in the heads of departments." It has been held by the 
Supreme Court, that a clerk of the District Court is an infe- 
rior officer, within the meaning of the constitution. — Ex parte 



160 ALABAMA. ■^>^'"- 

— — — f ■ » r .1 . 

Ex parte Gist. 

Hennen, 13 Peters 230. In the case of Amer. lus. Co. v. 
CanteiV 1 Peters 511, it. is held, that territorial courts are n o 
courts, within the meaniBg of the constitution," in which the 
judicial power conferred by tire constitution ca.n be vested. 
Thug, we see, that if the justice be a ministerial officer, Con- 
gress cannot appoint hina. . 

Is i:he petitioner entitled to the writ of habeas corpus ? 
He is, unless 'the justice of the peace had the power to com- 
mit him to jail ; and this is the inquiry on the writ of habeas 
corpus. — Cable v. Coeper, 15 Johns. 156 ; Spalding v.'Peo. 
pie, 7 Hill 30. Nor is it any objection that the case arises 
under the lawfe of the Uni-ted States. If those laws authorize 
■die prisoner'^ detentibn, the court "will decWethaf detention 
legal; if they^o not aiithorize his detention, then a pretence 
of authority from those laws is no better than any other pre- 
teuc€.— ^tate v.'Dimtntcki 12 N. H.n96. The State cotiFts 
have concurrent jurisdiction with the courts of the United 
States in all such cases.— 7 Barr 336 ; 11 Mass. 63 to 83; 24 
Pick. 227; 7 Cowen 471. 

. ■ The attention of the court is particularly requested to the 
article on page 377 of the 12th vol. Niles' Register, entitled 
" National Question," which is* an able I'eview by Judge 
Bland of Judge Che ve^ opinion in'the case of Rhodes ilx 
parte. * , ' ' " '" 

Justices of the peace -have no jurisdiction, except such as'is 
conferred on them by' statute. — Bridge v. Ford, 4 Mass. 641. 
Our decisions, in effect, assert the same pfiildple. — Williams 
V. Hinton, 1 Ala. 297. The Code, specifying the powers of 
a justice (§ 712), concludes tlrae : "To exercise such powers 
as are or may be conferred on him liy law." Section 3378 
confers the power on them to issue warrants of arrest. The 
opinion exjpregsed by Chanceilftr Kent,-th£(!t it is the law and 
usage of nations to deliver up persons charged with felony, 
or any other high crime, -to the sovereignty whose law has 
been violated, is.riotsiisfiainied'b/ authority, andhasrio't been 
followed by other courts of this country. — 2 Brock. 493 ; 10 
Serg. & ^. 123; 2 Gaines' R. 212 ; 12 Verm. 631; 14 Peters' 
R. 540; 2 SuRi. 482 - 14 Johns; 340. 

But, even if the principle asserted by Chancellor Kent be 
correct, and applicable to the case, the petitioner is neverthe* 



JAi^UARY TERM, 1855. ,;.: .l^jvi^^. ""S^ 



, . ' Ex parte GUst. 



'Ilil'^htrtjed to "his d^charg^. A * reasonable tiiHe'^ has \)een 
afi'orded"for the foreign •government to make the Requisite 
application to the proper anthorities for his surrender"; a 
terili of the court, at which, if guilty, he should have iSeen 
".' indicted, h?t8 passed ; "n'o eoi^t wj^ lieTd; no step wjis taken 
to surrender him, n6r -to expedite /lis release from i^nprisoli- 
raenl. For more' than Six niouths ke has^ been rostraified of 
hi* libbrtyj'-awaitjng tKe actibk of those charged wifh Ks 
prosecuti^ii. ** Nx) pnnd^l6(Jf'cd?iiit5''can i-equilre Jais further 
imprisonmeiit. ' • * ■ ' * . * , ** ' ^ 

CHILTON, C. J. — The petitioner was com^mitted to jail, 
atid detJlined lin^der a wairant of commitment foi; robbing tht 
United States mail, fssti*!^ by a^ jli^tice of .the peace of Madison 
county, in confoiTnity to fe ^"3d section of the act of Congress, 
approved 24th fejeptember, 17-89 — l.Stajr. at Large 91, §33. 

t\ is m)l denied that Congress may constitutionally pass 
'the law .for the violation 6f which the prisoner stands com- 
mitted ; "but'lfis insisted for th<3 petitioner, that the 33d sep- 
tion of' the judicikry act confers judicial power upon a Stai^ 
ojfcej", in violation of seftloh 1, article JII, and the seeorid 
•(i^i!i^e' of sectiofl 2, article II,. of the Federal constitution. 

Wo con«ed<3, .that the power or authority conferred by this 
section of the judiciaiy act ife in tts nature jiKHcial. The jus- 
tice of .the peace is called upoil to exercise judgment and dis- 
• ci'etion :*he is to' .jlt^g^of tlie'sir^eienoy oT the afB'davit on 
■^ich tltp warraiit of arrest 'is founded*; he xnust'dctennine, 
iipan''the eVidenco adduced, againat flie pHaoner, whether 
there' is a reUsonabro grdimd of suspicion against him, so as 
to' require tMt'h6'.shbuld*"be put .upon trial. f6r the offence ; 
And Jic ^s to'>mf)rigoii,'6r, take bai] for..th§ appeftranfe of the 
}>ai'ty af cohrt to abide his triaj. • ■ * * 
^ Biit, although sudi^utho^-ity invetfs'ies ih^ts exercS^ judicial 
fuiicti(Jii», ive are Very clear it dooe iiot fall within the inean- 
ing of ''judicial p&wer" in' the sense in '^^hicli that term is 
used in the third, articie of the constitution. 

In the distribution of" powers possessed by the Federal 

Government upon three separate bodies of magistracy, the 

CQiistitiition "deal$ ill general language. All its legislative 

powers are tested in Congress, — the executive powers in the 

11 



•l ' *•■ 






% 



!r'\::.,-.:..r fta-i^LABAMA.^ 



. Ex parte Gist. 



• Pre4ident,-^apd "the judicial power shall be vested in one 
Supreme Court, and in such inferior courts as the Congress may 
frcnn time to time ordain and establish." 
'"4 lit is manifest, we think, that by the tei-nt "judicial power" 
is here meant fliat power with which the courts are to be clothed 
for the purpose of \h(^ trial and determining of causes. The 
judges of these courts are to hold their offices during good be- 
harior ; and this "judicial power ^' m to extend to all "cases", 
in law and equity, arising under the constitution, <fec.. It was 
not intended by the general terms here employed to deny to 
the otlier departments ike e^^xche of powers." in their nature 
judicial, if essential to render the powers expressly delegated 
to them effectual. Hence- it is, that Congress, having the 
^t>Wi<3rt6 organize the PoStofiiee Department, ■^nd to provide 
for the punishment of offenders against the laws enacted for 
the protection of the mail, have, as a further necessary inci- 
.■4e»t, ^he power tq prbvide^f iho.arj^t and safe-keeping of 
such' offenders, until, by i\m exercise of the judicial powier 
proper, on the part of the cAurts having jurisdiction of such 
,(fe^s,*they «bi*e indicted^ and .tried fipr the^ .(?rime. So, also, 
although the President is the executive officer of the Govern- 
ment, he is constantly called on in the dj^scharge of his duties- 
te^perform a'cts in th^ir nature ofi5ci«,l, 1. The same may be 
said of tlie heads of tEe rcspecjthe dppaf-tments of the £rov- 
ernmeut, ,\ ' , .^ . 

We, ho^em', -fleeyi it unnecessary io ev-tey at length upon 

the djscus^ipn of the constitutional question, whether Congress 

may not' as a liccessary and proper means for th© accomplish- 

me^it of ^an end clpajdy witliiri the ^scope of its legitimate 

pgwer.,'enactiaws. conferring powers judicial in their nature 

^o«^tate magistrates. I'^is right has Ijeen recognized by 

^^very department of 4he Government «ver since the adoption 

M>f ^e Fgolei'al constitution,— "has received,* on nf ore occasions 

than one, the solemn sanction* of the Supreme Court of the 

United States, and has virtually been affiri^ied by the Supreme 

.'Cotfrt ,of this State'.* TJt^e ket uijder consideration was passed 

at the first session of Congress after the adoption of the con- 

.stitution, and has remained upon the statute book until the 

•prf^ent. It was followed "tiyiinqjtlier act of the 12th February, 

i793, which authoriaed State magistrates to give a certificate 



M 






JANUARY T|IR^ 18$5^;* 



p^'" >' Ex .parte -Gisfc^ -^ ' •* 




|pi;^j^.^x,kq,d4troji of fugitives i^TQmlabiO -•' - 

This ktter act was caUed iu que&tion,.siiitl the. pow.^ of.Cofl- ' .-^ 
gress to pascj siich laws was cldscly sm-ntiaizibd bt iQ§,rjied 
CQunsel, in tlie'grea;(;.cas© 0d["'Pi'igg v. Tlie-C<MHiponwealth'9f • 
Pennsylvania, 1{> Peters 5S9 ; ^ind theeourt there held ti^ ,• 
folloAviiig lang-uage : . '''A*s to the authority so conferred upoa 
li^tatQ magistrates, while a diiference of opinion haB exifsted, . ..-^ 
jand may "s^ll exist, on tlic point,, in different States, Avliether : 
.State magistrates are bouiwl to act under it, ?ip7?e is entertained • 
by this fcmrt that State magistrates may, if' ihey c/ioose, exercjse 
that authority, miless prohibited iy State legislqfioiu't>»vt:: ''^^^4. 

So, in Moore v. The People of Illinois, (14 How.), tHis caae 
is vii'tu^Uy re-affirmed ; and in The United States v. Foj^Tiera 
(13 i^.f^^), 'OUief- JustitevXanej, sgeaking_^of 'the ^wer^ ^om* ,- 
ferred upon certain officers under the trealty with Spain of • , 
1819, said: "The powers conferred Ly Congress upon tjie ' . ' 
jftdge, a§ wfl^ as the secreinvy. arc, it is trae, judicial in their ' .* • 
^jiaiture ; for judgniont and discretion must ha. exercised by'\''" 
bobth of theni. But it' is not judicial in either case, in the .'. \ 
s^Bse4ij w^iljch judicial power ^ii. gra,nted by^ the const! tntiojp. 
to the courts of the United States." ■ . . . , , s ,. , •■ 

The- same doctrine received fui*ther CQUsi^^ratioji ih the* "*■ 
matter of Kane _(14,Hom*tt)Q); ,apd -although ih^, Supreme 
Court Was divided upon, the question of jurisdiction which 
-that coui;t possessed over th^ case as made by tjie petitian^r, 
it appears . th;a.t» ^l th.e j.udges conceded the ponstitutian^,! ^ 
Kight of Congress to pass the law in question, vesting powers 
judicial in theif. ng-ture in officers, to be exercised by.tjjtea^ 
not jitting in* Ihe c^a«ii.y ♦of- courts of tlie Ui^teS. States. . V 
.^So likewise, fn .out oWu court, in the case of'Gainfes v. Har- 
vinr (19 Ala. 491-8), a similar provision in dur,Stat^congtitu- 
tion ■eanjeounder review ; ^ild .we there held, tliat it was not 
the intention. of. the Sramers qf the constitution to deiy- tp i^^ 
Leo4slatur.e the pawey to confide to mimstexial offic(jrs,,wbp. 
do nqi constitute- a part of the judiciary' ptoperly so called, 
many duties. involving inquiries i« tjiqir nature judicial. It 
was said-: 't The practice of this, ds of alj other governments 
havingi their "judijjial, executive and Legislative departments . 
separate and distinct, very -<?learly shows that,, in the admiqig- 
tration of the laws, inquiries partaking of the nature of jii- 



^S" 



^"^^ ALABAMA:' '^^^'^^ »'_ . 



Ex'^-art^Wst. 



diciai investigations «,re CDiitided topersons other than jncigea, 
whose acts have never been queetioiied on constittitiofiJli 
grauads.'"' ' 

As the question before ns is not whether Cohgress, acting 
within the sphere prescribed by the constitution, lias the 
power to provide for the arrest and commitment of offenders 
against the crimiual laws of the United States, but merely 
whether, under the claase of the oonStituti'ou a"bove alluded 
to, this power has been properly exercised, tlie same rules of 
construction which would apply to a similar provision in our 
State constitution iwoald "supply to the article under consid- 
eration. ■ _ • •• 
But to concltide f The act in question was passed by the 

^ Irst Gomgi'ess which ^<^»»s©nibl#d ai\el' fhe adopliioh of the con- 
stitution. iThe government \^as then principally adininistcred 
by those who had framed that instrument. It must be re- 
garded as a contemporaneous legislative exposition of the 
constitution, niade aftei" very mature deliberation and dis- 
cussion. It has been' acquiesced in ever since, and has been 
repeatedly recogiiized as a valid' law .liy^very department of 
the government ; and if any question •Shohld be considered as 
put to rest by long acquidscence, conte^iporaneous expositions, 
and extensive and uiiiforin recognition of its validity, the one 
before us would certainl5^ fait witlim that ojifegory ; and if we 

■were doubtful as to the co4"istitutionality of this law, these 
considerations would go far, if indeed Ave should not be re- 

. ^trirfed uncler thcJde&igiOn.^ of the SHppeme €onrt of the United 
Stwtes, td determine in favor of its validity. — Stuart v. Lafrd, 
LGfandi 299;- Martin v. fiupter,* 1 Wheat. 204 ; Cohen v. 
Corfimonwealth of Virginia, 6 tJ. 264^ Prigg" v. ThO-GomrnQn- 
wealjh of Pennsylyania, 1^ Petehs 621. 

There is nothing in the objectimi that the exercise of this 
<p«Jwer makes the justice a ESd^l officer'AYithin tTie meaning 

• of the second clause of the second section oT article II of the 
ftoqstitntion. He refldefs a voltintary service, and in an en- 

'fexgfed sense is, pro hoc vied, ah pfficer, but not one within the 
meaning -of the clause above referred to. He is an officer of 
the State, and permitted by the State to aid the Federal Gov- 
ernment in securing offenders against the criminal laws of the 
Union, so that they may be brought to trial before the Fed- 



JANUARY term:, 18^5. m 

rr ' ■ ' • r-» — -»* 

r Tims V. The 'State. * t 

%:l_ , — ^ . a— 

eral courts : and this power, we. a"re .of opinion,, he ip^y eOn- 
stitutionally exercise. 

The petitioner liaving- sh.own tlifit he ife nb"t entitled to the 
relief which he &eeks, .:the application' ii5r Aoieas corpus and 
certiorari ranst be overruled, with '.g^gt^^, 



*' • 

'^ - TBIS m.,TBtti\ STATE. . V:' 

1. The constitutioiuil guaranty oi' a trial' ,^y jury '• in all prOiiecutious by in^ 
cllctment or information,". (Art. I^ § 10,) does not apply to offences created 
by statute since the adoption of the constitution, except in the specified 
eases ; but it is vyithiu the power of the Legislature to make such offences 
ti'iable before a justice of the' peace without indictment. 

2. Nor does the provision contained in the twenty-eighth section of the same 
article, which declares that "the trial' by jury shall remain inviolate," ex- 
tend the right of a jiuy trial to cases which were unknown, at the time of 

'flie adoption of the constitution, either to .the common or to the statute Jaw. 

3. The third section of the act of februai-y 7, 1854, (Pamphlet Acts 1853-4, p. 
^47,) which makes defaulting overseers of roads triable before a justice of the 
peace, is not violative of tlie right to a trial by jurj^, as secured by the tenth 
and twenty-eighth sections of the first article of the constitution ; bu-t it is 
unconstitutional (Art. V, § 10,) iu that it makes no provisioo for an appeal, 
and the general law regulating ^appeals (Code, § 2811) is inapplicable to 
the CEVse. . , , 

^. • A repealing clause in an uncenst^tutiWtlal fet^tljte, declaring " that alJlaws ' 

contravcjiirig the provision's of this act be^jin^the 8aiB^«are hereby, repealed" , 

does not affect the previous lawg, , * ■ i . ' 

' » ■ * » * 

"Ereor from the Circuit Court; of Pickens. 

Tried before the, ELon. Geo. D. Shortridgb. 

'The indictment-in ttris case, which was fonftcf at the Spring*- 
teym, 1854, of the Circuit Court of Pickens, is in these words:' 

" The grand jury of ^aid county charge, that, .before the 
finding of this indictlnent, Daniel Tims, an overseer of roads 
in said county, failed to discharge his duties as such overseer, 
against the peace and dignity of the .St^te pf Alabama." 

At the Fall term, 1854, the proceedings which were had 
ace tku^ set oat in tkQ record : 









V. 



— ■^. 






v» ».w " . • •' ' TiiH3 V. The State, 



'■^^'l*? *T^e sai'd-rDaniel Tims, in his own proper person, and 
by attorn^j:, corries into open court, and in^slibrt by consent 
V . -demurs "to" tKe bilj o|'in(^c^ent against lijm, because (he says) , 
he is ftot chai^eableljy law as set out in said indictment; and ' 
further, that this cpurthas not jurisdiction iii such cases. * 
"2. jH^e'^says, that tfiis' court ought not to take further ju- 
risdiction of this cg,tise, becanisfe, pretioug to the finding of 
said bill of indictment^ tlje Legislature has pa^ssed a special 
" . • , act, giving all such cases, to "the different justices of the peace 
in. Pickens county, who alou^ have jurisdiction in such origi- 
.; njtl suits.— See Pamphlet , Acts 1853-4, N^, 388, § 3. He' 
; _ jtherefbre prays the coiirt "to 'discharge him from further 
' . pleading in Ijhis case, and (hat he. may have ' JH^dgment io' go 

.-.- .ife^ce:".t&c.' ' :;^ .**. ;■• • '. ..;; ;.;;\,;-:: -:' 

• : . . 'f^'THe recQrd then sko^g- vflie 'following '* Ordpr^:"— 'VFjFst 
. ' » jdemurrei-" to* iaAdTbttrnt ovpftruled* ; "Second >d6muri:er 40 
defendant's secdnd plea'^^stairied" •• affter which follows the" 
^* . judgment entfy^ which purports to have been rendered on the 
,'. verdiet X)f a jury:X)o ij^up -joined upon the plea of not . guilty, 

r . The bill of exceptions" is then set out, which is as-follows : 

*;.'. " On the trial of tliig case^ the default, of the def^dant,. as 
■» , charge'd-lf^ the indietJ^ent, was proved^totave^otfcurijed sub-, 
sequent to' the 8th day of February last. The defendant re- 
quested the court ,tQ charge the jury/ that ujiless they were 
•Jl^ satisfied from the evidence thsit •th'& default of the defendant, 
iAC^ any had been ])roved, occni'red before the 8th day of Feb- 
'fi ' / fuaryiast, thev^njust find t^je defendant not guilty ; but the 
. i • court refused to givq this charge^ an'd thereupioit the defgid- 
,^ '-^ ^t e:s|ej)ted." 

■ - '; 'l^UBiTER RE;Ayis and-S; F. Sheltok,. !br the- appellant. 

M, -A. Baldwin, Attorney General, contra. 
[ •; » v'^N9^^rieis..h'9,ve come to the hands of the Reporter.) 

. /■ , 'J;"'G6LDTH'WAITE, J.— By the Code (§ 1179) certain da- 
faults and omissions of duty on the part of overseers of roads 
axe declared to ha misdemeanors, and were therefore indicta- 

* .'•• 4)le offences (Code, § 3074). 'By the third section of the act. 

*• * kM 7th January, 1854, (Acts of 1853-4, 247,) it, is enacted, 
. * Iksit defaulting overseers on roads shall be triable before a 



*%. 



f. 



JANUARY TERM,, 185a. 



•> 



Tiihs v.'Tbo gtate; 



t » 



justice of the peace of their respective' precincts- svibjeetf tft 
the same penalty as required by the iaw 'rtow j-egulatiing the 
same under higher iurisdictiohs" : and the .*arao 'section con^ 
tains a clause repealing all laws contrary to the provisions of 
the act. The only question raised upon the record js/as to 
the constitutionality of the section referred to. r ' 

On the part of the State if is urged, tliat it i?; in violation 
of the tenth section of the d6clar9,tion of righis, which is in 
these words : "In all criminal prosecutions, the accifsed has a 
right to be heard by himself and counsel ; to demand the na- 
ture and cause of the accusatldri, and have a copy thereof; to 
be confronted by the witnesses against him ; to have compul- 
sory process for obtaining witnesses in his favor ; and in all 
prosecutions by indietment or information^ a' speedy public trial 
by an impartial jury of the" county, or district, in wTiich the 
offence shall have been committed ; he shall not be compelled 
to giv^ evidence;, against himself, nor shall he be deprived of 
his life, liberty, or property, except by due course of law." 
It is clear, that no part of the constitutional provision we have 
quoted is affected by tlie act of 1854, unless it bci^that portion 
which gives to the accused the right to a trial by jury in all 
prosecutions by indictment or information, for the reason, that 
all the other requisitions of that section can be complied with 
in the proceeding before the justice. But without the au- 
thority of the law conferring the power on the justice, he 
would have no means of summoning and compelling the at- 
tendance of a jury ; and no such power is conferred. In- 
deed, it IS obvious that, as no provision is made for a jury by 
the general. law, so far as- justices •aro< Concerned, and ngne 
by the particular statute which gives them authority to try, a •'• ^ \l 
jnry trial was not contemplated by the Legislature under. 'the. 
act of 1854;. V^■^•^--^^* ^» * -V'-;,- •!» >> t.,<: 

But the benefit of a tria;l by jury is not reserved by the 
constitution to every one who is accused of a vioktion of the 
lawr It is conferred as a right, by the tenth section, only in 
cases of prosecutions by "indictment or information"; and 
where an offence is created by statute since ' the adoption of 
the constitution, no right to a jury is conferred, except in the 
specified cases. We confine ourselves guardedly to the single 
case we have put, and make no intimation as to offences, which 



^ 



^' .^^^^A^^^^^^- 



Hms V. The State. 



h^ the. law in force at the adoption of the constitution were 
or could be proceeded against bj- either indictment or infor- 
mation. The affences which the statute was intended. to reach 
were unknown to, the common l^w, and.lia.ve been created 
si«ice the period we have named ; and there was, therefore, no 
want of power in the liOg-isKture to make them triable be- 
fore -a justice without a,tl iiadictmenti, Having full authority 

' over tliia class of cases, so far as the denial of ,a jury trial is, 
ooncerned, it was competent for them to change tlie character ' 
of ..the-offejice, by the repeal (if^thejaw which njadQ it indict- 
able, and to reach it in another mode. This they have do^e 
in^Ue present instance, by making the offence cognizable bq^ 

; fore^ jptioQ^ w^iQae. jm'isdiction'in crimiijal 'case,^s not^HiHro 
ited by the constitution, altliough in civil matters it extend* 
to no ease in which the. amquut -iii, controversy exceeds fifty 
dQ41ars;-^cm'., A>t. T", § 10.- \, , 

. -^What we liave said in relation io the te^'m." iiidictinents'', 
ai jased in the constitutional plause referred to, applies equally 
to ? informations.'' That term js used in it§* tfechriical seitse, 
^a4 refers to a common-law proceeding, by whic^ the crown 
, "it^, enabled to reach inclictable oflCences of a .grave nature, 

'"HicCUicrat the medium of a grand juty, upon'the complaint of 
the Attorney General tiled by leave of the^ court. — 1 ChittJrJs 
Oi-im. L., 842. The statute evidently has no 'HdferGnce io.^ 
proceeding of t|jat character. Y^ .. • JJ'- 

But it, is also urged, tliat the act is in conflict with the twen- 
ty-eighth' section of the bill' of" rights, vhjch declares "that 
the trial by jury sliall remain inviolate." In i-.elaticJn to tWs 
position, it is oaly nocessai^y.-ip' obserVi), that it wa^ not in- 
.tendedby this clause of tUg constitution to extend, the right 
of juiT k'ial.to cases which .were unknown, either to the com- 
OK)i\ Of statute law, at- the time of the adoption of* tllat instroi- 
ment. — Boring v. Williaiiis, IT AJai 510.- • • •. , 

, These are the only objections which have beea.. raided .,ii> 
argaqjent.figainst the vfilidity o^ the statute ;. but t]iere is one 
which, although it has not been adverted to, it is not the less 
our.d.uty to uotice. ,. It is founded' on the tenth section of the 
fifth^article of the'Qonstitijtitwi,, vhich is in these words : "A 
competent number of justices shall be appointed in and for 
each county, in such mode, and for such t^ti3^,9£iiP^^aL,^e 



JANUARY TERM, 1855. 169 

- •' Tims V. The State. 



^Geoeral Assembly may direct. Their jurisdiction tp. civil 
cases shall be limited to causes in which the amount iir con- 
troversy shall not exceed fifty dollars ; and in all cases tried 
by a justice of the peace> the right of appeal shall be secured, 
under such rules and regulations as may be prescribed by law4»i' • 
There can be no mistalce in the moaning of the last clause. 
It gives an appeaLto Uie individual, s\sa right, in every case— 
cyeil or criminal^tri«d beft)re. a justice ; and the wisdom of 
the* provision is a4)parent, when it is, remembered that the coij: 
stitutiou fixes no limits to the jurisdiction qf a justice in 
criiniji£|.l cases. . Th& exercise of tEe righj; may, >it is true, ^e 
regulated andlmiited b^' the Legislature ; but it must exist 
ia some shape. Thi^ statute, which makes the offence t^-iable 
before a justice, makes nc^ .provision for un appeal. But it 
may be urged^ tiratthe general lav, allowing' appeals to be 
taken upon any judgment rendered by ^ justice of the,pe^ce,> 
(Code, § 2811)* fulfils the constitutional requisition.' The 
provisions of the Code are, in this respect, substantially tlie 
same as the old law '(Clay's Dig. 314, § 9) ; and it is evident 
they were not intended, aad iXideed i^ould be wholly inade- 
quate to meet the exigencies* of the cases covered by the 
statute under consideration. The bond, or undertaMng, which 
is required before the appeal is takeh, is to be payable to the 
person in whose favor the judgment is rendered (Code, § 2811); 
and notice of the appeal is to be given the appellee. By the 
Code, (§ 3625), as well as by the former law (Clay's Dig. 441, 
§ 22), imprisonment was required to bo imposed on the of- 
fender, if the fine was not paid or judgment confessed ; and the 
apt^of 1854, in express terms, subjects -the defendant, if con- 
victed, to the same penalty. But the law of a,ppeals provides 
no means for securing the personal attendance of the appellant, 
|0 that it might become impossible to enforce the penalty of 
imprisonment. In any aspect in which we are able -to vjew 
it, we cannot. regard tliegeueral law regulating appeals from 
a* justice as applicable to the conviction of an overseer under 
the act we have considered. ' The Ig^w.^e haye referred to 
having no application^ and the act itself not providing for an 
appeal, the constitutional right. is not secured, and it is our 
duty to declare the third section of it invalid, except so feif 
as it repeals the laws in conflict with the provisions of the 



no .-*•. :2VLABAMA. 



E< parte Garlington. 



otKier section's which have no relation to the trial before'thc* 
magistrate. ' . - ^ 

But it is insisted, that eoncedlpg the act to be void in the 
respect we htive declared^— slill the Legislature had the powei* 
to repeal the previously existing laws in conflict with this 
provision. This is unquestionable ; and if the repealing clause 
had- declares that so hixKib t>f the previously existing laws as- 
made defaults of overseers cognizable by indictment, was re- 
pealed, a different case would have been presented. But the 
evident intention of the ^Legislature was, that; the provis- 
ions of the former law were only to be repealed if in conflict 
with the act. The words are, " that all laws contravening 
the provisions of this act are hereby repealed." If the new 
law is void, the provisions of the former law. cannot with 'pro- 
priety be said to be in conflict or contravention of it. 

Judgment affirmed. 



Ex PARTE GARLINGTON. 

' ' i\. Mandamus from the Supreme Court does not lie to compel the Circuit Court 
^ •'-♦ to gtrike a causy from thp docket, on motion, on the ground that it has been 
discontinued "hj a submission to arbitration. 

Application for a inandcmus to the Gircuit'Coyrtof Chara- 
feeirs. itbji. Robert JDoughbrty, presiding. 

The petitioner (Joseph E. Garlington) alleges that a ^uft 
was instituted against him, in the Circuit Court of Chambers, 
by M. H. Gladden, endorsee of Julius C. Bckles ; that he af- 
terwards entered into, a written agreement with the real 
plaintiff in said suit' to Submit the matters in controversy 
* thei^ein to arbitration; that at the succeeding term of the 
court he proved this 'fact to the court, and moved to strike' 
said cause from the docket, on the ground that said submission 
"to arbitration operated a discontinuance of the suit ; but the • 






'*;^' 

JANUARY TERM, 1855. *flt 

-* : ; -^ 1 — < 

. , . Ex p^*te Garlington. 

• , \ • • ^ — .'■■ -^ 

court ovetrujed his motiou, aii^ he excepted to its ruling. 
Appended to the petition, as a part thereof, is a transcript of 
the proceedings had in said cause, containing a bill of excep- 
tions, signed by the presiding judge, in which the facts al- 
leged in the petition are set' out ; and on these facts the pe- 
titioner asks for a rule ?im against the judge of the ninth 
judicial cirouit, sitting for the county of ■ Chambers, to show 
cause why a peremptory mandamus should not issue from 
this couri, requiring hiiii to strike said cause from the 
docket. 

L. E. Parsons and/J. W. Shepherd, for the motion : 

1. That the submission to arbitration was a discontinuance 
of the suit, see Camp v. Root, 18 Johns. 22: Miller v. Yaughan, 
iaf..3li] St^Ypnson y..Beecker, 1^., 492; Bean- v.. Parker, 17 
Mass. 591; Ex par^e -Wright, ,6 Cow. 899; Van Cortlandt y. 
Onondaga C. P., 1 Wend. 314; Larkin v. Robbins, 2 ib. 
50&; Town v. Wilcox, ^2' ib. 503 ; Hatchings v. Buck, 32 
Maine 277. . . 

2. That mandamus lies on't^p refusal of the Circuit Court 
to strike thecause from the doclf-et, -stte 1 Wend. 314 ; 12 ib. 
503 ; 6 Cow. 399 ; Dixon v. Fields, ^ Eng. 243 ; Cortleyou 
V. Ten Eyck, 2 Zabr. (N. J.) 45^; 4 Ala. 320; 7 ib. 757; 10 ib. 
598; 17 ib. 527. 

J. E. BELSEE.forthe plaintiff" in the suit, 'resisted the motion. 

.■*••, \» ' 

PE!fe 'CURlAH.-^The application must' be overruled, on 
the authority of several adjudged cases.— See Ex parte Elston, 
25 Ala. 72 ; JEx parte Small, t6. 74; Ex parte Rowland, at the 
present term. 






*1fc 



1T2 ; ALABAMA, 



Montgomery's Executors v. Kirksey. 



14 I 



. .^.MONTGOMERY'S EXECUTOItS i)^ KIRKSEY. 

1. 'The relatioushiJ)'Of ajl tjie parti^sto a deed of trust mad* by an Insolvent 
' debtor furnishes no predicate for a legal presumption or conclusion of fraud, 
although it is a circumstance which may go to the jury, to be considered bjT 
them, in connection with the other facts iu the. cause, in detei-raining the 
question of fmud in fact ; but if the cpur*, In charging bypothetically upofa 
the facts, predicates the conclusion of fraud upon the fact of such relation- 
ship, in connection with othei- facts which, if true, are in themselves sufficient 

' to. render the deed fraudulent in law, th« diarge is too favorable to the claim^ 
apt under the deed, and he thej-efore cknnot comptain of it on error. 

2.»^-decd of trust, executed by an insolvent debtor, conveying all his property 
in trust to secure the payment of a portron of his debts then past due, leaving 
other creditors unprovided for, and stipulating that the' grar^tor should retain 
the possession of all tht- property until the law day ofthe deed,iind for such 
.longer period as the sale might be postponed bj' the secured creditoi's, and 

- fhat the surplus after paying the secured debts and expenses should be j-e- 
funded to him, — is fraudulent and void iu law a^ against the unsecjn^ 
creditors. ' ' ^ ' ' * . • * '; ■•". 

i>. The facts that the dtf«idant's father "became t"h:e'pm'chaser of all the-^i^ 
perty at the 'trustee's sale urylor the deed, ivnd sufficed it to go back fO the 

^ defendant's possession immedMtely after the sale, " with permission to get^ a 
§Ul^istence for himself and family', but to turrf over all -beyond this to his 

' •jfalher, and that the property was to )je und^r the general supervision and 

- ^'odutrolof h?s brother as agent of his fatlier,'" do riot, if the deed was bona 
fide, and the purchase fairly and hone^Uy made, justify any presumption /bf 
fraud, nor raise any question under the statute respecting thre^ years' possess^,, 
ion under a pretended lohn. .The uncer tain ty.irf the amount of compensation 
by way of maintenance, is a circumstance for tHe consideration (rf the jury 
^n determining the (juestioa of fraud, which, if all tlie previous transactions 
were bona fide, the fact of relationship flioy sotvc to explain ; and the rule 

.;V "wjuch makes ^he retention of possession of personal property by "the vendor 
-prima facie evidence of fraud, does not apply to sale^ .at public auction 
after notice, .■• . 

4. tJnder the statute iu relation- to pretended loans of personal property, 
l[Glay's Digest, p. 254, § 2.) three years' uninterrupted possession by the loaoefe 
'is required to make the property subject to his^ debts : if the lender, with the 
view of avoiding the effect of the statute, resumes the posses.sion before the 
expiration of three years, and retains it for one or two days, this cuts off the 

* seatute at that point, and the loanee's subsequeat possession will date ti"oni 
the time when the property is restored to him. 

6. Although three years' possession of slaves by the loanee makes them under 
tills stg,tute subject to his debts, this does not give his creditors a right to 
crops partly grown by them, or other products of their labor, which have not 
been in his possession three yeacs. 






JANUAr.Y TER^i,^55.V' .^•r. 



r** 



Moatgomcry's! Executorp .v Ifksey. 



Appeal from the CirQuit Court" of ialia<i^'a.' 

Tried before the Hon! JoHisr Will Shorter. . 

■ ' - , ■ .....,.,., v^._ 

♦ • . • J 

Triaj. of thb RiGHEtT OF PROPERTY \ii thirty-tliiop bales of 

cotton and other personal property, between Isaac" Kirks^, 
plaintiff in execution, and Hugh Montgomery, elaimaut. "the 
plaintiff's exeeutibh was issued on a"^ judgment which he bad 
recovered against William Montgomery, In the Circuit Court 
of Talladega, on the 7th of November, 1842, for $791, besides 
CQSts, and was levied on th^ property in controvei'sy on' 'the 
19th of January, 1^50 ; and the- claimant,- who was the father 
of said William Montgoraeiy, relied on a purchase at a public 
saM.raade-by the trustee ih" a Certain deed of trilsf exjocutepl 
by said William Montgomery, whieh'is hereinafter more par- 
tioularly described. 

On the trial, as appears from the claimant's bill of e:S;9ep- 
tions, the plaintiff read in evidence to the jury the executit)h 
under which the levy was made, with the endorsements 
thereon, "and also made out o.. prima fade (^ase by proof of 
possession of the property levied on "'; and llie claimant then 
read in evidence, after proving its execution and due regis- 
tration, a deed of trust from said William Montgomery to 
'James Montgomery, dated the 11th of June, 1842, conveying 
to the said James, as trustee! certain real and personal ]]to- 
"^ferty^ to secure the paymept of 'certain debts of the granfor 
then past dUe. The debts secured by this dieed are the fol- 
rqwjng : to Hugh Montgomery, several debts,. due by promis- 
sory notes,' amounting in all to about -$3^500 ; to Andrew 
'Cunningham, a debt of $770 ; to Cunningham & Story, a mer- 
cantile firm, a debt of aboiit $120 ; to Daniel H. Jackson, a , 
debt of $100 ; and to the Branch Bank at Huntsville, a bal- 
ance of about $200— amounting, exclusive of interest, to nearly 
$5,000. The property conveyed cojisists of tbe grantor's 
plantationj on which he then resided, containing about two 
hundred "acres, together with the growihg crop ; also, titie 
growing crop On fifteen acfes of rented land, ten negroes, two 
mules, two horses, forteen h6ad of cattle, thirty-five hogs, four- 
teen sheep, a wagoh and harness," farming utensils, and house- 
hold and kitchen filrnitute. -^e trusts specified iii^ the deed 
are as follows : " ' '**" *• ' * ' V" ■* " 



m , '• >AiABAMA. 



Montgomery's Executors v. Kirksey, 



.^""'Tbat if, on the first day of October, 1842j all or any of 
said debts afid liabilities shall remain du^.and unpaid, then, 
and in that event, th<3 said James Montgbmerry shall proceed 
to sell, for cash, to the highest bidder, before the court-house 
door in the town of Talladega, at public auction, firgt.giving 
ten da}-s' notice of the time and place of such sale by publica- 
tion in some, newspaper published in this Stat^,.or by written 
advertiseraeiit put .yp at the said coUrt-house door in the town 
of Talladega, all of said real and personal property, or so 
much thereof as may be necessary to the full and complete 
payment of* -all said debts then a'nd . thereafter remaining due 
and unpaid;, and the 'proceeds of said sale are to be applied 
by said James Montgomery to the, payment of said debts ; 
and if the said property should be insufficient to pay all of 
said deists, then the said proceeds are to be applied to the 
^yment of said debts in propgrtion to their several amounts, 
aijd the excess, if any, after ' paying all Iiecessary expenses 
upon the execution of this deed of trust, to be paid over to 
said William Montgomery, or his representatives. And it is 
al-SQ expressly understood and agreed, that a-ll of said property, 
both real and personal, is to remain in the "'possession of said 
WilHam Montgomery* until tiie day of sal6. And it is further 
understood and agreed, that, if thp^parties for whose benefit 
this deed is m&^e shall thyik^pyoper to -postpone the sale of 
said property beyond the time hereinbefore mentioned, they 
shpU Jiave full power to postpone a^id delay the sale to such 
time SLS they pay thihk proper*} ih .wliicE ev^t, the said pro- 
perly is still to remain in the possesion of said William 
A|ontgomery (but tJie ^giid James Montgomery is to be fully 
(jnlitled ,to the growing crops) until the sale shall be made .by 
J9^<ier oi" the said partigs.for whose benefit this 'deed is made.*' 
■* , ".The 'claimant then proved, that on the 14-th of April, 1843, 
after nqticf, in. writing of ^he tihie and place X)f sale in accord- 
ance wi^i the terms of^saiddeed, the property therein named 
Wits put up j\t public sale at the court-ljousie door iti the to.wn 
of Talladejja, and sold to the^highest bidder for cash. There 
Kas eyideiipe, .offered by plain tifif yi execution^ tending to 
sfiow that said sa.le, and the purchase made imdei* it, -were 
fraudulent ; but there was also evidence, ofi'ered by the claim- 
ant, tending -to sbow that the sate and purclmse w«re fair and 



JANtJAttY TERM, 1855. 17^ 

— __ ^ ^-_ , — ■ . — . ' i ^^. 

' ;• • Montgomery's Executors v. Kirksey, ' - ■;V' ' 

r , ,., 1- ^ , ' ^ ~ ■ ■! ■ 

bona fide. ' At this sale Hugh Montgomery, the father of said 
William Moutgomery, became the purchaser ,of ail said pro- 
perty. After said sale, the property was carried back to the - 
residence of William Montgomery, and remained in his pos- 
session (except as hereiup-fter stated) up to the time of th& 
levy. The claimant oft«red evidence, also, tending to show 
that the debts liamed in said deed oi" ti^st were bona fide ; 
and plaintiff offered evidence tending to show that they, were 
not. The evidence tended to show, also, that the debt^ 
named in said deed were all the debts the said William Mont- 
gomery owed, except the d(?bt due to plaintiflT. in execution, 
and a security "debt of about $1^500 which he owed to the 
Branch Bank at Decatur, which his co^swety aftei:wards paid ; 
and that the sureties of the debt ,to the Huntsville Bank, 
mentioned in said deed of trust, were near relations of said 
William Montgomery. 

'• The plaintiff's execution in this case is founded on a judg- 
ment obtained on a note given by said William Moutgomery 
for land sold by said plaintiff in execution (IsaacKirksey),t^ 
him. The said land, being bound for the said purchase money 
at the time the deed was executed, was afterwards sold by 
said plaintiff in execution, und^r a decree, obtained,' on a bfll 
filed by him for that purpose, to sell said land for the payment 
of the purchase money ; and at the sale under said .decree 
James Montgomery becajne the purchaser.. This is tjie same 
land contained in the deed of trust, and was sold under said 
deed, and purchased by Hugh Montgomery, before iSirksey 
filed his bill to assert, this lien. 

" The evidence conduced to show, also, that the property 
sold under said deed was returned by said Hugh Montgomery 
to the possession Of said William Montgomery,. with permissi©» 
to get a subsistence for himself and fainjly, but to turn over * 
to him all beyond this ; and that the property was to b? under 
the general su]3ervision and control of James Montgomery, as 
the agent of said Hugh. The claimant offered evidence, fur- 
ther tending to show that the property was thus held by 
William Montgomery from the time of the sale up to the date 
of the levy. It tended to show, also, that William Mont- 
gomery never claimed the property as- his OAvn after the sale 
in April, 1843, but acknowledged it to be the property of the 



•1T6 ALABAMA. 



Moiu^Ojptry's Executors v Kirksey. 



dafmant.' TTii<r^ -^loiit'croTncry ; th'at JataeS ]Vrontgomfe!'^;''^s 
ageut for said Hiigli, i?a;l takea the slaves out of said William's 
possessi6ii> without consulting hiiD, at 1txt6rvals; of 'less 'than 
three years frotri the.tini^ of tlie"*sale, up to the time of the 
levy, arid retained possession of them for a day or two at a 
fhne" controlling them a:s the propeffjj of said Hugh. The 
evidence* conduced to show/also,' that "said James took pos- 
session of said slaves, as agent as aforesaid, for the purpose 
<5T avoiding' the statute of tJwee years" posSfession. -The evi- 
dence also fuj-ther tended to shotv, that said James, as agent 
as afores,aid, controlled the cotton crops, selling, them, and re- 
ceivitig tlfe money «for fhcm^ibuf tli^t William' used and dis- 
posed 'of all the oth^p crops raised on th^ place ; and it was 
further shown, that William and Jana'esMptttgomery occupied 
different farms. ' . ' ' *'^***. '' 

" On the other hand, the plaintiff in execution offered evi- 
dencej tending to sliow that Williiihi Montgomery controlled 
this slave property and other property in all respects' as his 
0wn, from' the date of the deed up' to the date of the levy ;, 
and that 'when the' property was taken o.ut o'f -his possessi*on 
bj James Montgomery, aS aforesaid, it "was returned to him 
again Without any new' understanding or agreement with him; 
that it ^eht back to his possession imfikediately after the sale 
in April, 1843, and (with the exception of the times when the 
property was tkkcii /rora Ills 'ppssfessio^ to- a[void the statute, 
as aforesaid) had remained' in' hi's po'Ssession ever since, abd 
had been under hi§ exclusive manageinent. 

"The evidence further tended to. show, that shx)rtly after 
the sale in April, 184^, William IVTontgoiitery left the land on 
which he resided at that tiinGS, and for" which he had given 
•plaintiff the note on wliich this judgment arid Mecuti on were 
obtained, and Aventto Kre on laud purchased for him by said 
JardeSi as 'agent as aforesaid for said Hugh, iuid paid for by 
hito, aJs fetich agent, "but of flic proceeds of crops raised by the 
labor of said slaves. The cotton levied 'qu Avas the crop made 
by said slaves on the laHi"d thuJ; purchased by said James, as 
agent as aforesaid, during the year preceding the IcA-y. The 
evidence 'conduced to show, also, that all James Montgomery, 
had done in reference to the property'Ke did as ageut for Htijgh 
Montgomery) aa^ by his-corigent, and under his instructions. 



. 1 5«.'^1» 



■>'•■ 



S' •* • 'XANtJARY TERM, 1855/ ' 1%, 

I «. j.^^i** — '~~~ ~"~~ — ■ — ~~ — ■ — ~~~~" ~" ^' -■ - . . , 1 ■ 

S Mputgomery'a Executors v. Kirksey. ♦ . >. 

"Upon this state of facts, the court charged the jury — ^^ ' 

" 1. That the deed of trust, made by William MoDtgomerj^ . 
to James Montgomery was not fraudulent upon its face ; but,'* 
if all the parties to the deed were related to each other, and 
there were other creditors of William Montgomery than those ,. ' ,' 
named in the deed at the time of its ex'ecution, and this was ' - 
known to all the parties who were provided for by said deed, 
and all the property which William Montgomery owned was • . 

included in said deed, — that then said deed was fraudulent •' ' * 
and void as to such excluded creditor. 

"2. That if they believed that the negroes named in said •••'": • . 
deed, after the purchase by Hugh Montgomery, were permitted 
by him to remain in the possession of said William Montgom- 
erj under a loan, without deed or -writing recorded, for thi'ce 
years previous to the levy, and that the cotton levied on was 
produced by the labor of the negroes on the plantation occu- 
pied. '^by William Montgom^jcy, thfJl the- cotton levied on 
would be subject to plaintiff's execution, although James 
Montgomery, ,as the agent of. said Hugh, had taken said ne- 
groes into hia possession, fpr-a day or two at a time, at Inter- 
vals of less than three years, if they believed that such pos- 
session was had by arrangemeut or collusion with William 
Montgomery, with a view to -pi^event the operation of the " 

statute of three years. 
"The claimant asked the court to charge the jury — ^ 

" 1. /.That if tt»ey believed t^ie property was purchased by 
Hugh Montgomery in good faith at said trust sale, and was 
carried to the preniises of Hugh or James Montgomery ; and 
that William Montgomery was (buffered to live upon said ••,-.' 
premises, and to use the property purchased so as to obtain a 
subsistence for his family out of the same, and was bound to 
account to Hugh Montgomery^ or his agent, for the surplus, 
and did so account ; and that the place was tinder the super- 
vision of James Mautgomeyy, us agent for said Hugh,— then 
the statute respecting pretended loans did not apply. This* 
charge was given» with the qualification, if .William Montgom- 
ery and family resided on, the same farm with James or Hugh '^ - 
Montgomery ; but, if he and his family cultivated and lived - '.'* / 
upon €u separate farm, then the statute would apply. ;." • \'-^ 

ii{'ij^ .That if they bv'lieved the cotton levied on was the joint 



Its ALABIMA. 

-. . . ; > .. — _ _ __ r ■ _ ? , rH 

. .'■ V .4 Montgomery's Executora v. Kirksey. , . ^" • 

.»<Ma, , .,(. V* - . — — — — ^ , J » - y vft/'A * 

procluct of tlie land of James Montgomery and the negroes 
purchased under said deed of trust by Hugh Montgomery, 
and that the Cotton had not been in the possession of William 
Montgomery for three years at the time of the levy, then it 
was not subject to plaintiff 's^ex<ee«tiou under the statute of 
three years. > it* . *l. 

" The court refused each one of the charges as asked ; and 
to each refusal, as also ta JtIi«-oharges given, the claimant sep- 
arately excepted.'' ^j^'.-'.'i , >^. 

The charges given, and the I'efusals to charge as requested; 
,^jianow assigned for error. 

White & Parsons, for the appellauts : 

1. The deed of trust from William to James Montgomery is 
not fraudulent on its face. The provision that the sale may* 
be postponed by the parties for whose benefit the deed waa* 
made does not, as the appellee's counsel insists, render it 
fraudulent. This court has decided, that where it cannot 
clearly see that a deed is fraudnlent* on its face, the question, 
of intent must be submitted to the jury in connection with- 
all the other facts and circumstances. — Johnson v. Thweat, . 
18 Ala. T41 ; Elmes v. Sutherland, 7 ib. 262 ; '8 ib. 106 ; also-,. 
2 Metcalf 's R. 99. There is nothing on the face of the deecf 
to show that tlie grantor was insolvent, or in failing circum* 
stances ; and the fact that perishable articles are conveyed 
by it, with a reservation of the use to the debtor, does not 
alter it. The resei-vation of the use to the grantor until the 
law day of the deed, is nothing more than the law would 
have given him without any express reservation in the deed* 
Diibose V. Dubose, 7 Ala.; Elmes v. Sutherland, supra. Tlie* 
grantor only retained the right of possession until the sale^ 
and whatever surplus (if any) might remain after satisfying 
the secured debts and the expenses of the trust ; and these' 
were open to his creditors. That his possessory interest migh^ 
be sold, see Williams v. Jones, 2 Ala. 314 ; Planters <fe Mer* 
chants' Bank v. Willis, 5 ib. 771 ; Magee v. Carpenter, 4 iK' 
469. There is nothing in the terms of the deed inconsistent^ 
with good faith, and it does not necessarily hinder or delay 
creditors. If the ti'ustee were to refuse to act promptly, or' 
^yithi^ ^.r§§,aQB|4>l§:tii4§j he m^ht.be ^compeUed to do so ia 



;t,\/^^'« 'January term, isssl ' ^ '^ V '|^ 

' ■«* V ■■!' 1'^ " J M *! ^ ■ 1 ■ 




Kirksey. 



T— Evans v. Lamar, 21 Ala. 336. It will be time enough >' 4 
to cry fraud, when the creditors attempt to postpone the sale ' • .!'* 
in such a manner as to hinder or delay the unsecured credi- * *,V 
tors. It will be ol^erved, that the deed only provides that 
the gecured creditors 7nai/ postpone the sale, &c. Now, unless 
this power was actually exercised in a fraudulent manner, -i' • 
how can it be said that the deed hindered the other creditors V ' '•* • 
But it will be seen from the evidence, that tlic sale took place ■ .' ^ 
in April, 1&43, and therefore no fraudulent use was made of 
the deed.— -Jones v. Williams, 2 Ala. 314 ; Anderson v. Hooks, 
9 ik 704 ;' 4 ib. 379 ; 9 Porter 566. As to the right of the 
unsecured creditors to have the -trust closed, and the surplus 
paid over to them, see Dubosc v. Dubose, 7 Ala. 235 ; Pope -., . 
V. Wilson, ib. 690 ; Graham v. Lockhart, 8 ib. 9. Again ; 
the granite must participjit^' in the fraudulent intent on the 
part of the grantor, if there was one; to invalidate the deed. 
Hooks V. Anderson, supra. And the embarrassment of the 
debtor, life relationship to the credi toi*, nearness of residence, 
&c., are n,ot sufiicient to warraiit the inference of fraud, ^♦. 
because all this may be consistent with good faith. — 7 Ala. 
143 : 9 ib. 704 ; Garland v. Chambers, 11 ^. '& M. 337. 

2. There was no evidence going toshow that all the parties 
to the deed of trust were related to each other ; and therefore 
the ^st charge is. eri*on€OT»s.' That cliarge withdrew from 
the jury the consideration of the bona fides of the grantor and 
the other parties to the deed, and madg the whole question 
tut-n on the"r<ilation'ship of the geciared cvetlitors to the grantor 
and their knowledge that He had other creditors unsecured by 
tlic deed, and that all his property was conveyed by the deed. 
All these facts might consist with good* faith and fair inten- 
tion.—Stokcs v. Jones, 21 Ala. 731 ; Bank v. Taylor, ib. 582 ; 
Bank v. Lanier, 18 ib. 629 ; 17 ih. 611 ; 9 ib. 944'; 18 ib. 745 ; 
7t&. 142; 9 2*. 712. 

..^ 8. The error of the second charge is apparent : the statute 
inquires an uninterrupted possessioji of three years, while the 
charge says this is not necessary^ — Stubblefield v. Oden, & 
Ala. 651 ; Brainard v. McDcvitt, 21 ib. 124. If an interval 
of a day or two may be disregarded. What is there to prevent 
a greater interval from being disregarded ? The letter of 
the statute, where thr? plaintiff's title depends upon it^ must 









'it 




• ' .' ;• 180 JF- . * %^i ALABAMA. i^ '•"* - . ' 

t» • . *. *. ' . ' Montgomery's Executors v. Kirksey, *'' 



*. 



•5 -.t" ; • be followed. By the return of the negroes to the possession 

•»v' ,. of their owner, the right of the loanee and those claiming 

{• '♦ , •> under him was gone : and upon their return, the statute began 

k"^^' ' to operate anew. As between the lender and loanee, property 

i\l^ \ held under a gratuitous loan remains the property of the 

',./ " original owner, although it may have been in the possession 

■'; '• • of the loanee for ^lore than three years. After the expiration 

of tlie three years it is subject to the loanee's debts, and the 

i creditor's right attaches to it, provided he has acquired a lien 

•"•' . . bj placing his execution in the sheriff's hands. while it is yet 

'•* in the possession of the loanee ; but if the lender has resumed 

•' ' • the possession before the lien has attached, the property is 

no longer subject to the demand of the loanee's creditor. 

Maull V. Hays, 12 Ala. 500 ; McCoy v. Odom, 20 ib. 502 ; 

Knight V. Be"il, 22 ib. 198 ; 10 Leigh's R. 5. 

',• 4. The case hypothetically stated in the first charge asked 

• * "* by the claimant, does not make the relation of lender and 

* I?'**' loanee under the statute of frauds, but only a permissive 
occupation .of the premises and use of the slaves, coupled witli 
an interest in the family of the defendant, and an accounta- 

^».. - ..* bility to the agent of Hugh Montgomery for the proceeds of 
••*•■• *>' the labor of the slaves and products of the farm, with a 
*'.''"?. superintendence over the whole by that agent. — Johnson v. 
•;_ .*.^'"- Branch Bank at Montgomery, 7 Ala. 879; State Bank v. 
:1^- 1 i Croft, 6 ib. 622. 

••; ' , . >^^i The cotton was grown, on the land which Hugh Mont- 
' '■ gomery had purchased, by tlie labor of the slaves. There is 
no pretence for saying that the statute of three years' posses- 
sion applied to it, unless the fact of its being the prpduct of 
• • their labor is sufficient. The evidence does not show that the 
. . ' ' slaves had been in the possession of the defendant in excution 
fofi three years at the time the cotton was produced : and if 
not, then both the slaves and the cotton were the property of 
,, ,. the claimant, and not subject to dqfendant's debts. To sus- 
•/":/' tain this charge of the court, it must be assumed that the 
> ■ "f ■ cotton was liable to the payment of the debt, not because it 
was the product of the labor of slaves who were at that time 
liable to the execution, but because they afterwards became so. 
Branch Bank at Mobile v. Ford, 13 Ala. 431 ; 5 ib, 744. 

•:*■•.,./'■,'':;'' ••'■.■.*'.'' •'■■*•;.-•.'■'•■.'•:'••. ^- •■• 

.'•'" -""^ ' ■..*•. . .'- ■ iS ■"■ '■/-■». v.''' -r.* ■•■■ ' 



.V 



JANUARY TERM, 1856. 

Montgomery's Executors v. Kirksey 




JW'-JoHN T. Morgan, contra : 
"*^ I. The deed of trust demotes the whole of the grantor's i\,"4 
^*h)perty, real and personal^ to the payment of the debts to * 
his relations. Tlie grantor was insolvent, and owing debts to .'* 

a larae amount not secured in the deed. The debts secured * ' 
by the deed are all past due ; the law day of the deed is post- > _ , 
poncd for five months after the execution of the deed, and the '*'. ^.. 
deed contains a provision that all the property, real and per- 
sonal, is to remain in the possession of the grantor until the 
day of sale ; and if '' the parties for whose benefit the deed is , 
made shaU think proper to postpoTie the sak, beyond th€ time . ; ;• ' 
specified, they shall have full power to postpone and delay ■ Y'^ 
the sale to such time as they may think proper ; in which event, ' 

the property is still to remain in the possession of the grantor, 
until the sale shall be made by the order of the parties for -'-^ • . 
whose benefit this deed is made ; but the said James Mont- •'' .• 
gomery is to be fully entitled to the " growing crops". All • •*' • * 
these facts were known to all the parties when the deed was -^Vl' 
executed. These facts, if they were all distinctly incorpo- .;. \ 
rated in the deed, would make it fraudulent upon its face. •„ • , 

1. Because the deed, not being a deed of assignment, (by >;-^ -^ 
which all the creditors of the grantor are secured an interest -»' 
in all of his property,) does not in good faith devote the 
property conveyed, (being all that he had of every descrip- 
tion,) to the payment of the preferred creditors, but reserves 
ttre possession to himself, and puts it in the power of his rela- 
tives and preferred creditors to continue that possession in 
him so long as they may choose ; and in the meantime to take 
the benefit of the crops to himself except the ^''growing crop" 
which had already been specified in the deed, and which 
means the crops then growing. This is a stipulation of the 
deed, and it will not do to say that the parties benefited by 
the deed may order a sale of the property conveyed very soon. ^ .' 
Suppose they do not ; if the grantor has the right to incorpo- 
rate such a provision in the deed, and if it is not inconsistent 
with honesty of intention to do so, the parties benefited may 
keep him in possession for twenty years, consistently with the , -•■ ■ 
provisions of the deed, and keep off the creditors not embraced ' ; 
in the deed. Such a provision in the deed of an insolvent 
man, or one in failing circumstances, is utterly inconsistent 

■■*■'.♦-' " . ■ 









Mout^omery-s Executors v. Kirksey. 



'*. 



with any sound ideas of honesty.— Gazzam v. Poynts, 4 Ala. 

382 ; Hindman v. Dill, 11 ib. 689 ; Grimshaw v. Walker, 12 

ib. 102 ; Planters & Mer. Bank v. Clarke, 7 ib. 770 : Wiswall 

;,1^•*'^ ' V. Ticknor & Day, 6 ,ib. 178 ; Bullard v. Hazzard, 1 Porter 

.•,.*■• 139; Rugely v. Harrison, 10 Ala. 731; Pearson v. More- 

,;/.'*', '■ land, 7 S. & M. 609 ; Cummings & Cooper v. McCollough, 

''■,/;• ' 5 Ala. 324 ; Herrin v. Morford, 9 Dana, 450. 

;. " ,-. 2. The reservation of the right of possession of perishable , 

; property (such as cattle on a farm, grain, growing crops, and 

■\ ' . ' all household furniture, shee|) and hogs, upon a plantation,) 

■•-■. ' / is equivalent to a reservation of the use of that property, when 

■■"*'■''. it appears that it is all the man has to live upon; can it be 

. ' '. . ; intended to support the bona fides of such a reservation, that 

the grantor was willing to starve himself in order to g•i^'e a 

. preference to creditors ? There is no stipulation in this deed, 

> ;. ' •. that the possession of the grantor of the property is, for the 

benefit of the trust fund ; and if there was such a stipulation, 
I'.* •■.• it would read strangely in connection with the other recitals, 

> ' \- whicli the judge's charge incorporates on t^ it, Viz.*, the grantor 
•;.•'" is insolvent; owes other debts; conveys all his property; 

^, . "4 and all the beneficiaries of the deed are his relations. , Could 
','• ,' « he havcretained the possessiouf for the sole and pure purpose 
',•..*'' of making the trust estate secure the debts? — Johnson v. 
Thwcat. 18 Ala. 741 ; Soraerville v. Horton, 4 Ycrger 550*; 
cited in Ravisios v. Alston, 5 Ala. 302. >f 

• 3.- But, if it is amderstood that the deed conveys the crops 
then growing, and to be grown during the period that the 
beneficiaries might allow the grantor to remain in possession, 
and that it was one of the purposes of the deed that these, 
crops should be -applied to the payment of the debts ; this 
view of the case does not relieve the deed from its fraudulent 
character. A debtor has no right to tie up property in the 
hands of a trustee, until the remits and profits may discharge 
the debt. — 'Cases cited supra, and Vernon v. ]\rartin & Smitli, 
8 Dana 263. 

4. All that was wanting to make the deed fraudulent upon 
its face, was for it to have shown that William Montgomery 
was .insolvent, and had conveyed all his property in the deed, 
and owed other dcl)ts at the time the deed was made, not 
nr nviHftd for in the dfiftd. These facts being shown, adm itted 



i >■ 



JANUARY TERM, 1855. 183 



Montgomery's Executors v. Kirksey. 



of no explantioii, and it was the duty of the court to pronounce ' fc' 
the judgment of the law upon the case. 

5. West, Oliver & Co. v. Snodgrass, 17 Ala. 549, shows 
the limit to which our court will go, in support of the assign- 
ments of insolvent debtors. ' ". * * 

6. The degree or character of fraud, which would authorize 
a court, upon the facts stated on the face of the deed, to 
declare it void, need not be idifferent, or stronger, than that 
which would authorize a jury to find the fraud, upon the same ^ . '• 
state of facts, not embraced in a deed. The court must con- ' • ■ « 
strue every deed, if called upon, either by its four corners, or 

in connection with facts in proof; and in this discharge of 

duty, the court will look to all the facts, and decide each case 

upon its own features. — Johnson v. Thweat, ^wjora. The evi- , .* » 

dence need not be sufficient to exclude a doubt, but only to 

raise a presumption of fraud. — Borland v. Walker, 7 Ala. 269; * 

Petrie's Ex'r v. Wright, 6 S. & M. 647 ; Swift v. Fitzhugh, 

9 Port. 39. 

II. The second charge given aflSrms that if the cotton was 
produced by negroes loaned by Hugh to William Montgomery, 
upon land in the possession of William Montgomery, it was . - .%; 
subject to the execution. This is a correct proposition, for if 
the negroes were loajied to William Montgomery, he could 
certainly enjoy the benefit of their labor, and it was of no 
consequence how often, or when they went back into the 
possession of the bailor. But the other propositions con- 
tained in the charge are correct, if they are in condition to be 
considered. ' ' ' 

1. If there was a loan, and a possession under that loan for 
three years, without deed recorded, &c. The mere fact that 
the possession was taken, by the agent of the bailor, ybr a day 
or two at a time, at intervals of kss than three years, cannot 
defeat the operation of the statute. Such an agent might *, •' m^ 
take the possession, at suck intervals, and keep it for that ' - 
length of time very consistently with the right of the bailee * ■ 
to hold it under thc^original loan. And besides, the attempt 
to defeat the statute by a collusive change of the possession 
is not the prosecution of the claim by due course of law, but 
is only an addition of actual fraud to the constructive fraud 
which the statute attempts to guard the community against. 



y^- 



184 ."• '.*• ALABAMA. 



Montgomery's Execotors v. Kirksey. 



McLaughlin's Adm'r v. Daniel, 8 Dana 187. 189; Gressett v. 
Agee & Dumas, 14 Ala. 355 ; Myers v. Peek, 2ib. 638. The 
original loan would not be determined between the original 
bailor and bailee, upon a mere collusive change of the pos- 
session back and forth between them.— Stephens t. Barnett, 
7 Dana 259. ' ' . . - 

'.0^ 2. The possession of a loanee, under the first charge asked, 

^ "Would have been sufficient under the statute of frauds, for the 
possession of his family is his own possession. — McCoy v. 
Odora, 20 Ala. 502. The farm was in tbe-separatc possession 
of the loanee. The charge is silent tis to whether he ac-, 

^counted for the surplus proceeds of the farm annually, or at 

4lrhat intervals. — Myers v. 'Peek; eked sv-pra. 

• :- III. The second charge asked was properly refused. It 
called upon the court to say -that the purchase of the negroes 
under the deed <3f trust, conferred the title upon Hugh Mont- 
gomery, or James Montgomery,- without respect to the ques- 
tions of fraud raised in the case. It further called upon the 
court to decide that the statutes? frauds couJd not affect the 
title to cotton raised by negroes. 5f the negroes ''were pur* 
chased under the said deed of trusl", .an^ was raised on James 
Montgomery's land.* What deed of trust is " said deed of 
trust"? 

• .CfllLTON, -Gyii.-^l-J As to the iilfsV charge : We may 
leave out of view the relationship of tlie parties, as consti- 
tuting one of the conditions upon which the judge predicsited 
the conclusion of fraud, in this charge ; for, if this was an 
error, it was favorable to the appellants, requiring^ tbe jury 
to find that all the parties to the deed were related, when, in 
our opinion, aside from the relationship of the parties, if the 
~jury found the other faetshypotHetically stated in" the charge 
to exist, they might well have been instructed to find the deed 
fraudulent. The relationship of the parties, upon a question 
of fraud in factj wa» a drcumstatice whictr ntight properly 
enough go to the jury to be considered by them, in connec- 
tion with the other facts in the cause, in ascertaining the g%co 
animo the deed was made ; but it furnishes no predicate for a 
legal presumption or conclusion. 
.^ The charge, stripped of thia^fiftju^c 

.1 

«"• . . . 




4^ 



J-ANUARY TERM, 1855.- ^ '^ 



Moutgomcry's Executors v. Kirksey. 

the question, wliether a deed, made by an insolvent, of all his 
property, to a trustee, in trust for the payment of some of his 
debts, leaving other debts unprovided for, and containino; 
stipulations beneficial to the grantor — namely, that he should 
retain the property, the. use of which is valuable, for s6Veral 
months until the law-day, and for such longer period as the 
parties secured may postpone the sale ; and that the surplus, 
after satisfying the secured debts and the expenses, should be 
refunded to the grantor — is not, as a conclusion of law, fraud- 
ulent and void, if these facts were known to the parties to it? 
We do not hesitate to say, that had all these facts appeared 
upon the face of the deed, or been returned by a special ver- 
dict of a jury, we should feel constrained to hold, irrespec- 
tive of the intention of the parties, that the deed was fraudu- 
lent and void in law as against the creditors not provided for. 
It is not permissible for any one thus to avail himself of a 
part of his indebtedness to tie up all his property and exempt 
it from liability for his other debts, while he has the tempo- 
rary benefit of the use of it and a contingent residuum. Such 
assignments, when these facts appeared on their face, have 
uniformly been declared fraudulent in law. That the facts do 
not appear on their face, only puts the party upon whom the 
burden of proving fraud is devolved to the necessity of other- 
wise establishing their existence, and of showing that the 
beneficiaries were cognizant of them. Several adjudged cases 
of this court show that such deeds cannot be upheld. — Gazzam 
V. Poyntz, 4 Ala. 382; Hindman v. Dill, 11 ib. 68&; 7 ib. 770; 
6 ib. 178; 12 ib. 102 ; 5 ib. 324 ; 10 ib. 73l. 

There was, therefore, no error in the first charge given by 
the court, of which the appellants could complain. 

As to the second charge : We are not at all sure that it 
was warranted by the proof disclosed by the bill of excep- 
tions. It is said, the proof tended to show that the property, 
after the sale under the deed of trust, and the purchase by 
Hugh Montgomery, went back to the possession of William 
Montgomery, " with the permission for him to get a subsis- 
tence for himself and family, but to turn over to Hugh Mont- 
gomery all beyond this ; and that the property was to be 
under the general supervision and control of James Mont- 
gomery, as the agent of Hugh." There was other evidence, 









18^ . • ''::' M- ALABAMA, mif A 



^«-ii< -■ , » .». 



Montgomery's Executors v. Kirksey. 



tending to prove that William Montgomery, from the date of 
the deed until the time of the levy, controlled the property in 
all respects as his own ; that it had been taken into posses- 
sion of James Montgomery for a short time — a day or two — 
before the expiration of three years, for the purpose of avoid- 
ing the three years' statute as to loans the evidence of which is 
pot recorded, but was returned tp William Montgomery with- 
out making any new arrangement, and had been under his 
exclusive management and in his possession ever since. The 
proof conduced to show,, that the cotton wbicTi was the sub- 
ject of controversy was raised by these slaves, on land pur- 
chased by James Montgomery, as agent of Hugh Montgom- 
ery, and paid for by him out of cotton crops raised by the 
slaves. Such being the proof, Avhen stated in the strongest 
light for the appellee, we are much inclined to doubt whether . 
it raises any question as to the tliree years' possession under 
a pretended loan. If the deed was bona fide, and the pur- 
chase by Hugh Montgomery of the slaves and other property 
was fairly and honestly made, he had as much right to con- 
tract with his son, the defendant in the execution, to take 
possession of the property and work it on land which he would 
purchase, retaining a subsistence for himself and family as a 
compensation for his care and trouble, as he had to employ an 
overseer in the same way, or for a stated compensation. The 
uncertainty as to the amount of the compensation by way of 
maintenance, is a circumstance to which the jury may look in 
determining whether this was not a part of a scheme de- 
signed to secure the property to the sou, to the exclusion of 
bis creditors ; but, if all theprevipus tran"sactions by which 
Hugh Montgomery acquired the property are bona fide, the 
fact of relationship may serve to explain why the same degree 
of particularity as to compensation was not observed as 
would be likely to have obtained had the father dealt with a 
stranger. 

Neither can any presumption of fraud be predicated upon 
the isolated fact, that the property went back into the pos- 
session of William Montgomery immediately after the sale; 
The rule which makes the retention of personal property by 
the vendor jirima facie evidence of fraud, does not apply to 
gales made at public auction after notice, as in this case. If, 



>ir- 



JANUARY TERM, 1855. m^, •. : 

Moatgomery's Executors V. Kirksey. . ■.:'. 



%• 



then, there was an agreement that William should retain the ' > 
slaves and farm of Hugh, and deliver over the proceeds to 
the agent of Hugh, which might remain after deducting a ' •' 

subsistence for himself and family, and there was no fraud in 
the acquisition of the property in Hugh, the statute above al- 
luded to respecting possessions under loans for three years 
has nothing to do with the case. 

But, conceding that the facts brought the property into that 
category, we are still of opinion, the second charge was erro- 
neous, as to the alleged interruptions of the possession by 
Hugh Montgomery, through his authorized agent, taking pos- •' *. .^ 
session before the expiration at any time of three years' con- 
tinuous possession. 

The object of the statute doubtless was, to prevent persons 
/rom obtaining collusive credit, or lulling their existing cred- 
itors into false security, by the possession of property appa- " '-it^^ 
rently their own, and upon the faith of the liability of which, * * 
from long continued possession, to the satisfaction of flie pos- 
sessor's engagements, his creditors may well be deemed to 
have reposed. An actual, bona fide change of the possession, 
before the expiration of the three years, cuts off the statute at 
this point, and the loanee's subsequent possession as to its du- 
ration must date from the time the property is, returned to 
him. Nor is it material that this change was designed to '• ' 
avoid the effect of the statute. The, owner had a right to 
avoid it, and by an open, ostensible act, retake his property 
and resume his dominion and control over it. Nor has the 
law fixed upon any specific period of time which the owner 
must retain the possession before its return, in order to con- 
stitute it such an interruption of the possession as shall pre- 
clude the operation of the statute. A mere constructive pos- 
session will not suffice ; that the owner has all the while, and 
it is what the statute strikes at when it is^.'oppoJ^ed to the 
claims of the actual possessor's creditors. "Nor will we say 
that a momentary interruption Avill suffice : but, if the posses- 
sion be actually and bona fide changed for a day, or two days, 
we see no reason why such change should not be as available 
as one month, or ono year. The charge assumes, that if the 
change of possession was by an arrangement between the par- 
ties, or collusive, &c. Now the parties might honestly have 



T f 



188 ■--'/■■'^^ ALABAMA. -^^ 

• Itfontgomery'a 'Executors v. Kirksey. 



• ^"^ arranged, witTiout any intention- of deluding or defrauding 

\ 'creditors or purchasers ; and if it was bona Jide, it could not 

aifect the rights of the lender. 
'^ -JVbm these e6nsideratioq(p,'^'6 a're of opwiitfa, the second 
cliargc was erroneous, — thatthe first charge asked by the a|>- 
pellaut sliould have bepn given as asked, and that the quali- 
fication superadded by ihe eonrt ^yas erroneous ; foV, in onf 
• Mew, it was wholly immaterial^ (conceding the facts stated in 
"this charge to be true, and the validity of the trust deed.) 
- ? whether William lived on the same farm with Hugh or Jamea 
.:^: • ."*Montgoraei'y, or lived upon and cultivated a place separated 
Trom theirs. » % . , 

The second charge prayed for lay the appellant should have 
been given. It by no means follows, because the law says, 
;;.^^ ^. 'that if William Montgomery has retained possession of the 
.'i[ '.^aves for more than three years on a pretended loan, thes6 
r .-slaves shall be liable to his debts, that other property belongs 
ing to him, the product of tlie labor of the slaves, but whicli 
has not been in his possession three y,ears, shall be liable: 
';^«'pftfperty is separate and' ctistinct. Th5re is no such n^ 
"Sessaiy connection between Ihe slaves and the cotton which 
their labor has contributed in part to produce, as that the one 
must occupy the conditioh' of the other. As between the 
loanee and the actual possessor, the property belongs to the 
former, notwithstanding three years have elapsed without 
•■^aitn made, &c., as reqt^red by the statute. Its pYodued 
mpy, by the agreement of the partios, occupy the same status^ 
The creditor's right is, to subject the property which has re* ■ 
main'ed with his debtpr for three years; and if he chooses to 
pass by that' and lex'y upon other property which has not 
been held for this period, we .know of no principle Avhich au- 
thorizes him to transfer his lien in this way, upon the idea '. 
that property which he might have subjected contributed to 
produce tKat levied upon. 

^p the error we Imve mentioned, the judgment of the Cii^ 
'Ooiirt must be reversed, and the cause retnarided. 

• >'' • ' : Rice, #^ did not sit in this case, having been of counsel' '' 
,•' -•■ . ' before his eleefion to the bench. ..^ii^ 

J: ■■■ -,'•■.* ^.' .'■: -V'-r:. .^ .-■•••■v' •' • -•".•.•■ 

\ . . : •>. ^v'^ " ' ' • '-- '''•■ ' •"' ■«-'••• '■" '' '. '■ • •'' ' ■- •• 
. .■ •«. ■»,' '.* .■■ ' . - *■ ■ ,' ' ■ . . • • • ■•••>..■- ••. ' • 



JANUARY term; 1851). 



1^ 



Owners of steamboat Farmer v. McCraw. 



OWNERS OF STEAMBOAT FARMER m. ArcCRAW. 

1. When an attachraeut is sued out agaiust a steamboat to recover damages for 

■ injuries caused by ber running into a flat-boat. (Pamphlet Aots 1843-4. p, 98,) 
the declaration must be against the boat itself, and n*>t against the owncre^- 
although the attachment bond Is raad« payable to the owners, and theft"; 
names are also stated in the affidavit on which the attachment was issued. 

2. The refusal of the primary court to strilie from the files adeclaratiou ag^iivst 
the owners of the boat, i.« a reversible error. 

3. Proper practice prescribed for declaring agdinst a boat under this statute, 
and for the intervention of her owners. .^ ; •. .^ !' 

4. The proceedings under this .statute, except sp far'M tb^ ard changed by the^^ 
act itself, must be governed by the rules of the common laVv ; and therefor 
any facts which would defeat an action on the case against the owners a< 
common law will have the same effect when pleaded to proceedings against 

. - the boat. ,, , ' ► ^ \. 

5. The general rule of the commoB lawt ii,-tbat if Ijoth v8s^l8 arc to blame, 
npitber can recover damages for injuries caused by the Collision ; but this' 
rule applies only to faults which oix-rated directly and immediately to pro- 
duce the collision. 

6. There is no infle.\ible rule, either of the river or of the road, the neglect of 
which by one party will, dispeqee with tb» exercise ,of coma>(»i caution by the 
other. ' ' ■ - - * ■ " 

7. " Ordinary care'' is altogether a relative term: anil in sneh cases as this, 
the want of it means nothing more yian the failiire tof use tho^ precautions 
which a just regard to the persons and property of others demands should be 

, used under the circumstances of each particular case. .^ 

8. A common chrrier, as he is not absolved fi'om liability to the owuer o.f the 
goods by the torts of tliird persons, has a right to maintain an action for the 
wrong ; and a recovery by him for the injiu'y doue to tlie goods will be a bar 
to a subsequent action by tlie x)wner for the damage or lo.^ re^ultiljg^ from 
the same injury. * ' 

9. But where the owner of the lost or damaged goods brings his action against 
the owners of the boat which caused the loss or damage by running into the 
flat-boat on which the goods were, a plea of a former i-ecov.ery by the com- 
mon cai'rier for the iiyuries caused by the collision, " which (it avers) are 
the same injuries in the plaintiffs declaration alleged to have been done to 
the goods of the said plaintiff," is not equivalent to an averment that the 
recovery was for the damage done to the goods dc&?ribed in the declaration 
— non constat, that it may not have been for damages doac to the goods of 

• some other person which were on board the flat-boat at the same time ; such 
a plea, therefore, is defective on demurrer. 

10. The owner of the flat-boat, who had charge of lier it^e time of the col- 
lision, is not a competent witness for the owner of the damaged goods, in an 
action against the steamboat for damages ; uor is he made a competent wit- 
ness by the Code (§ 2302). m^i* 



* * 



XQ^ . ALABAMA. 



.___ . 'W^. . ' ^ 

tit i' lf^^ -i— — r— ■ ■ — — — -ll-_ / < Hi^'jtt 

;^ \ ^^ ^ Owners of Steamboat Farmer V. MoCraw. 

^^ Appeal from ilie Circuit Oourt of Dallas. 
Tried before tlwi, Hon. "Nat. Cooe.- 

This action was -ii'ommenced in May, 1852, by attachment^ 
sued out by the appellee against the steamboat Farmer, to^ 
recover damages fqr injuries done, to seventy -eight bales of 
cotton, belonging to the plaintiff, by a collision between the 
steantboat and a flat-boat on which the cotton was shipped. 
The affidavit, on which the attachment was issued, allege^ 
that the steamboat, at the time of the collision, "was com- 
manded by Jjldward P. Shields, aiid claimed and owned by 
said Shields, Jacob B. Walker, and Daniel Walkisr" ; and the^ ; 
attaclmjent bond was made payable to them as such owners.* 
The attachmeat was issued by ajustice of the peaee,Najid was 
made returnable to the then next ensuing term of the Circuit 
Court of Dallas. The sheriff i-eturued the w:rit, " Levied this* 
attachment, the 19th Maj", X^o% upon tlie steamboat called 
the Farmer, with tackfe and apparel, as the property of Ed. 
F. Shields and ^others; which boat, with her tackle and ap- 
parel, wa» returned to the possessioa of the said Ed. ¥, 
Shields, upon his entei'ing into bond, with security," &l\- and 
the bond, which was returned with the Avrit, signed by sai^ 
Shields, J. B. Walker, Daniel Walker and otliers, was condi- 
tioned that the obligors should pay, or cause to l>e paid, to 
the said plaintiff, his heirs, <fec., " sucli judglnent as may b6 
rendered in such attachment proceedings, and shall further 
pay all costs that may accrue on the trial of the same." 

AtflieFallterm, 1852,Gf the Circuit Court, the plaintiff tiled 
his declaration, in which he " complains of Edward F. Shields, 
Jacob B. Walkjer, and Daniel" Walker, claimants and ownei* 
of the steamboat called and named Farmer, which were 
^attached to answer the said plaintiff in a plea of trespass oa 
the cagci." The declaration cofitains two counts, of which the 
first alleges, that plaintiff, at the time of the alleged collision, 
which was in April, 1852, was the owner of seventyeight 
bales of cotton, which wore shipped and freighted pn a flat-' 
boat, belonging to Wm. McCulloivgB and Alex, BraJne, thea 
afloat in the. Mobile river below the junction of the Tom- 
beckbe, and bound for Mol>ile ; tliat the defendants were, at . 
tlie same time, possessed of >he said stcdmbo^t," and then ahdf 



JANUARY TERM, 1855, Wt 

. ■ ^. ; ■ - ; ■■ — 



Owners of Steamboat Farmer v. McCraw. 



there had the care, dire(5tion, and management thereof; yet 
the said defendants, not regarding their duty in that behalf," 
<fec., " took so little and such bad care of their said steamboat, 
jn the direction and management of the same, that the said 
steamboat, by and through tbe carelessness, misdirection, and 
mismanagement of the said defendants, then and there, with 
great force and violence, ran against the said flat-boat, with 
the said soventy-eight bales of cotton of said plaintiff, and 
thereby greatly broke, damaged, and injured the said flat- 
boat, and thereby the said seventy-eight bales of cotton of 
said plaintiff, then on board of said flat-boat, became and were 
greatly wetted, damaged, and injured," <fec. The second 
count alleges, that, at the time of the collision, the defendants 
were possessed of the said steamboat, " and the said Edward 
F. Shields, as commander and captain, had the care, direction, 
and management of said steamboat : yet, not regarding his 
duty in that behalf," &c., ''■ took so little and such bad care of 
the said steamboat, in the direction and management of the 
same, that the said steamboat, by and through the negli- 
gence, carelessness, and mismanagement of the said Edward 
F. iShields, commander and captain as aforesaid, then and 
there, with great force and violence, ran against the said flat- 
boat," &c. "^' 
The defendants craved oyer of the attachment, and demur- 
red to the whole declaration, and also to each count sepa- 
rately ; but their several demurrers were overruled. They 
then pleaded, 1st, not guilty ; and, 2d, " that the running of 
the said steamboat against the said flat-boat, whereby the 
cotton of plaintiff, on board said flat-boat at the time, was 
injured^ if. injured at all, was caused partly by the fault, mis- 
management and imprudence of the person or persons who 
had the direction and control of the said flat-boat, and not 
wholly by the mismanagement, or naisdirection, or negli- 
gence, or carelessless, or fault of the person or persons who 
had the direction and control of the said steamboat at the 
time of the alleged trespass or injury." The court sustained 
a denmrrer to this last plea, and the defendants then, by leave 
of the court, pleaded, " in short by consent," " that the negli- 
gence and imprudence of the person or persons who had the 
control and direction of the said flat-boat, on which the 



Owners of Steamboat Farmer t. McCraw. '" ■ 

plaintiff's said cotton was shipped and freighted at the time 
of the alleged injury to said cotton by the running or striking 
-of said steamBoat against said flat-boat, caused or contributed 
to the said collision fcetweeu said boats, whereby the injury 
to plaintiff's cotton, as alleged in his declaration, if injured 
at all, was done" : and to this plea, also, the court sustained 
a demurrer. The defendants also filed a plea puis darrein 
continuaric€j in which they set up a recovery against the steam- 
boat by the owners of the flat-boat, '"which judgment (they 
aver) remains in full force, not having been set aside, or re- 
versed, or in any manner annulled ; and defendants aver, that 
the said attachment and judgment were and are for the inju- 
ries committed by the running or striking of the said steam- 
boat against the said flat-boat, and are the same injuries which 
a,r€! iu the plaintiff's declaration alleged to have been done to 
the said cotton of the said plaintiff; and so defendants say, 
that plaintiff ought not to recover in this case against defend- 
ant, for the reason that the. recovery has been had against 
said steamboat for the said injuries in the plaintiff's declara- 
tion complained of.". The plaintiff demurred also to this 
plea, and his demurrer was sustained. 

On the trial, the defendants moved the court to strike the 
declaration froqi the files, on the ground that it was a de- 
parture frofti the writ of attachment ; but the court overruled 
tlieir motion, and the defendants excepted. ^^ 

. The plaintiff" introduced one Y^m. McCullough as a witness^ 
, '^ho statef^f, on his vak' c&Ve, " th^t he was one of the owners 
of the flat-boat which was injured, and had command of it at 
the time of the collision ; that he had given a bill of lading, 
or receipt, to the owners of the cotton, for the cotton on board 
the injured flat, and was to receive ouq dollar per bale for 
freight of the cotton to Mobile ; and that he had a suit against 
these same defendants, pending in this court, for cotton of 
his own that was on the, flat-boat and injured by the collisioa* 
On these facts appearing, it was objected by the defendants' 
that said McCullough was incompetent from interest as a 
witness for plaintiff" ; but the objection was overruled, and the 
witness allowed to testify, and thereupon the defendants ex- 
cepted." 

The testimony in the case, which is all set out in the bill of 

• - ' '. 



JANUARY TERM, 1855. 193 

.,^.,.A>„..J„-. ».- M. _ _ . ^ 

■ Owners of Steamboat Farmer v. McCraw. •. 

— — -?*• 

exceptions, is very voluminous ; but, as no question was re- 
served touching any part of it, a brief statement of its sub- 
stance, sufficient to explain the charges refused, is all that is 
necessary. On the part of the plaintiff, the following wit- 
nesses were examined, viz., Wm. McCullough, who was the 
commander of the flat-boat at the time of the collision ; 
Nichols, Kinnard, and Zimmerman, who were all employed as 
hands on the flat-boat at that time ; John Saunders, who was 
on board the Farmer at the time of the collision, and was 
looking out for the flat-boats at the time, as he had friends 
on them ; and Sam'l Chesnut, who was in command of another 
flat-boat which was lashed broadside to the flat on which 
plaintiff's cotton was at the time of the collision. According 
to the testimony of these witnesses, the circumstances of the 
collision were as follows : Thq two flat-boats, which were 
loaded with cotton and lashed broadside together, were.floak- 
ing down the Mobile rivci, oetvveen eight and nine o'clock at 
night, about a mile below the point where the Tensaw river 
shoots off' ; the river was about two hundred yards wide at 
that point, and very crooked ; the night was dark and cloudy, 
and a heavy rain fell soon after the collision ; the steamboat 
was heard approaching some twenty or thirty minutes before 
she came in sight, and lighted torches were then placed at the 
outer corners of the flat-boats ; when the steamboat lirst came 
in sight, she was from two to three hundred yards distant 
from the flats, and seemed to be moving very rapidly ; the 
flats were in the middle of the river, but there was room ' 
enough on either side of them for the steamboat to pass ; the 
steamer Lowndes, which had passed the Farmer a short lime 
before, iad just passed them without touching ; the Farmer . 
attempted to pass on the right side, "but her wheels struck the 
corner of the outer fiat, on which plantifi^'s cotton was ; ou 
hearing the cry for h^lp, the steamboat rouuded to, and re- 
turned, and, after carrying the Aat.to the shore, spent the night 
in taking off the cotton and piling .up. v^at had fallen ovejr- 
board. ..•.,.! ^, - ^ 

The defendant's witnesses .w6re, one '^ge^, who w-as a pass- 
enger on the Farmer at the time of tlie collision ; ^tewart 
George, who had ijecn a pilot on the river ifor thirty years ; 
S. P. George, who h^-d been a steanj^aat. pilot foy three year^. 

13 ■''••■:■■ ■■ ' 








^ •• »• f - , Owners of Steamboat Farmer v. McCraw. 

■ 'i ' r\' — '^ — -■ — — — 

^ : ^ •■ ; aad was pilot of the Brooklyli ori, the night of the col 

;'. -iSKhd came uji with the Farmer soon after the accident had 

•.' • occurred ; Charles Bell, and one Clayton, who had been on 

. .'• • the river for several years as clerks on steamboats; Levi 

•Cobb, who was one of the engineers of the Farmer ; W. H. 

. Pendarvis, who had been on the river as a pilot for thirty 

• years, and was on the night of the collision the captain of the 

Sarah, which passed np the Tiver soon after the occurrence ; 

John Newton, first mate of the Farmer ; William Holland, 

• ,.•< watchman ; Walter C. Tuggle, who was in the pilot-house 
"^ ^ " 6.ssisting the pilot ; Alexander Shelton, who was at the helm ; 

; -'^slud' James R. Ingram, who had been running the river as 

;■ / ^^lerk and captain for eight or nine years. The testimony of 

. these witnesses was, substantially, as follows : That the Farm- 

leV, at Ihe tkn'e of "the collision, ha-d her full complement of 

.' ., . ^5fficers and men, who were skilful' and competent; that she 

\ '•■'-^^ was running at her usual spe^d, and was not racing with the 

'^ .'•', . .-jjowndies' ; that the "Mobfle river, for Several miles below 

• ■'* y. the point where the Tensaw shoots off, is very narrow, crook- 
•■ - ; -ed, and difficult to navigate— its width at the point where the 

collision happened variously estimated from one hundred to 

..•^ .". one hundred and fifty yards ; that the night was very dark 

' .' \' '. and cloudy ; that every effort was made by the steamboat, so 

■". ■■ • soon as the torches were seen, to avoid the collision ; that the 

'.' > collision was very slight, dind was not sufficient to sink or 

•^ : • • injure a flat-boat of ordinary strength ; that the timbers of the 

Injured flat were not more than one-half the usual thickness, 

' and the boat wftiS not hmtt as strongly as fl.at-boa.ts usually 

are ; that it is the usage and custom' of flat-boats, on account 

• ' ;x ^^ ^^^ ^^^^ ^^^^ danger of navigating that part of the river by 

■ ' v • i. night, ■'to tie up to the^'bank above thS'^oint where the riv^er 

."••,;/.• ^vides ; that the danger is much" increased by lashing two 

V .;'* ."flat-boats broadside together, as it makes them more unman- 

•r*-'^' Viageisible, and leaves less spaxje for boats to pass theiA ; Aatall 

'-■ *'• ;^ the steamboats navigating tl^e Mobile rfver, ascending and 

■ •" . '^. descending, pas^ this narrow part of it at night, and on the 
■'■ ," . night of the collision four boats passed. 

To rebut a portion of the defendants' evidence, the plaintiff 
'-• • ^ie-examined McCullough, Chesnut, and Kinnard, who testi- 
, • •*■ .; ' .^ed, that they knew of no custom requiring flat-boats to tie 



JANUARY TERM, 1855. :/.U, J 

Owners of Steamboat Fanner v. McCratp.* . ',' , V 



up to the bank for the night before entering the Mobile river, 
and had never done so themselves ; and that the planks of 
the injured flat-boat were of the usual strength and thickness. 
It was proved, also, that Edward F. Shields, one of the ow;i- , 
ers of the Farmer, had command of her as captain at the time ' 
of the collision ; that the plaintilF was the owner of the cot- 
ton sued for ; its value ; the amount of damage, &c. 

On this proof, the defendants asked th« following charges r 

"1. If the jury believe from the evidence that the danger 
and risk of collision were increased by lashing the two flat- 
boats togethei', and that this contributed to the collision 
whereby the boat on which plaintiff's cotton was shipped and 
freighted was wrecked, then plaintiff cannot recover for any 
damage he may have sustained by the collision of the boats. 

" 2. If, at the time of the collision, the steamboat had a 
sufl^cient number of skilful and comJ)etent officers, and a propw 
and sufficient crew foi: Ihe proper management' of the boat* ^ 
and if the officers and crew used ordinary <;are, prudence, and 
diligence tQ prevent and avpid a collision with the flat-boat, — 
then defendants are not liable for the consequences of the 
collision. ^"' ; ■ " . ■* : \^ 

^' 3. If the jury believe froto thb^ evidence* 'Chat th'e twnai- 
BoatS were lashed together, and thereby occupied a wider 
^aC6 in the river than was necessary, and that thereby the ' 
facility for the passage of steamboats safely was diminished, 
and the risk of collisiqn increased : ^nd that the lashing of 
tlie two flat-boats together did, in this case, increase' the risk 
and danger of collision with the steamboat Farmer ; and that, "' 
if the flat-boats "had hot bfeen lashed together,, the collision * 
with the steamboat would L^ve been avoided, — then the plain- 
tiff is not entitled to recover. , .} ■ ' ' * *^ * 
^ *' 4. If the evidence shows thai tliose *w1k) had' the control ' 
and direction of the flat-boat oh which plaintiff's cotton was, ' 
lathed it side by side with another flat-boaf, and permitted 
the two flat-boats thus to-'floa^ on^a dark- night, in a narrow 
and crooked part of th^'rfver', where m^ny steamboatlfesrej^o 
known to the manager? of sa(id flat-T)6ats to be in the habit of 
passing at night, the umna^ers of said flat-boats' woitlS be. 
'chargeable with' st want of jirop^r '(SKre and^ prudence, and the ' 
H^fehdants would hot be charge£ible witii the conseqdebiife of , 






^- ' --x. ALABAMA. 



Owners of Steamboat Farmer v. McCraw. 



the collisioa of said flat-boats with the steamboat, if the offi- 
cers and crew of the steamboat exercised ordinary care and 
diligence to ayoid and present the collision. 

"5. If the jury believe from the evidence that one of the 
owners of the steamboat Farmer was on board of her, and in 
command of the boat as master at the time of the collision, 
then the plaintiff is not entitled' to recover in this action. 

" 6. If the jury believe from the evidence that the night 
was very dark and cloudy, and that on such nights it was 
customary or the usage of flat-boats to tie up in the river 
above where the collision occurred ; and that the failure of 
th,e flat-boats to do so contributed to the collision, — then t^9 
plaintiff is not entitled to recover." , ; * 

The court refused eafch one of these charges, and the de- 
fendants excepted to each refusal. 

The jury having returned a verdict for the plaintiff, assess- 
ing his damages at $705 59, the cour4. thereon rendered judg- 
ment " that the said steamboat Farmer be condemned to the 
satisfaction of the plaintiff's debt and demand ;" and further, 
" that the said plaintiff recover of and from the said Jacob B. 
Walker, Daniel Walker, Joseph Hunter, Moses Waring, and 
Stephen Twelves, the said sum of $705 59, the sum assessed 
as aforesaid, and the costs in this behalf expended." 

The rulings of the court on the several demurrers, the 
refusal to strike the declaration from the files, the overruling 
of the objection to the competency of McCullough as a wit 
ness, the refusals to give the several charges requested, and 
^e .rendition of the judgment, arojiGw assigned for error. 

* ^ 

Jt. W. Lapsley, for the appellaats : 

1. The court erred in refusing to strike the declaration 
from the files. The plaintiff should have declared against the 
steamboat, and not against her owners. The statute, under 
Vhich the action was instituted, only authorises a proceeding 
ifi re?n, and not in personam ; and the declaration must follow 
the process.— 1 Chitty's PI. 279, 283; Otis v.' Thorn, 18 Ala.' 
i395. If the obligors in the bond should have been made de- 
fendants, still the declaration is defective : it does not conform 
to the bond, but omits several of the obligors. 
" % The court erred, also, in overruling the demurrer to the 



JANUARY TERM, 1855. 197 

Owners of Steamboat Farmer v. McCraw. 

attachment and declaration. This assignment, in addition to 
the question presented by the first, rais-es this further question, 
Is there any authority for the action, either at common law, 
or by statute? The act of 1844 is void for uncertainty, and 
is an absurdity. It is a bundle of incongruities and absurd- 
ities : it makes no distinction between the parties who are i^ 
the right and those who are in the wrong, but gives a remedy 
to the owners of the injured boat, whether guilty or not ; it 
does not provide against whom the declaration shall be filed, 
or who shall be parties defendant — whether, like a proceeding 
in admiralty, it shall be against the boat, or against her own- 
ers? OP against the obligors in the bond ; if no bond is given, 
it makes no provision for the disposition of the boat before 
or after the determination of the suit. If it is a proceeding 
in remr it inakea no provision for the release of the obligors 
in the bond after they have paid the value of the boat, but 
only provides that they may, upon application to a circuit 
judge, pay the value of the boat, and that the same shall be 
divided, pro rata, among the several suitors or judgments ; 
but it does not provide that the obligors shall be thereby re- 
leased. What, then, does it mean ? I§ it i .proceeding in 
rem? or in personam? or' both? It is a nondescript, without 
sense or meaning, and is therefore void. 

3. The court erred, also, in the rendition of judgment. The 
statute does not authorize a judgment against the owners of 
thp boat, nor against the obligors in the bond : it only au- 
thorizes an execution to issue on the bond. 

4. The court erred, also, in sustaining the demurrers to the 
second and third pleas, which allege that the collision was 
partly caused by the fault, negligence, and mismanagement of 
those who had charge of the flat-boats. In maritime law, if 
both vessels are in fault, each must sufiFer its own loss, and 
tlie damages may be apportioned. The well-settled rule at 
common law is, that there can be no'recovery when the plain- 
tiff 's boat was in fault in any degree ; and the court will not 
measure the degree of fault of the suffering boat. If there 
was any fault on the part of the plaintiff, and that fault con- 
tributed in any degree to the act which produced the injury, 
there can be no recovery. This is the well-established doc- 
trine of the English courts, the Supreme Court of the United 




ALABAMA. 



Owners of Steamboat Farmer v; McCraw. 

;» -^tates, and the courts of the different States.— Butterfield v.' 
" ' y.l'orrester, 11 East 60 ; Pluckwell v. Wilson, 5 Car. <feP.368; 
'" ■• ^Woolf v; Beard, 34 E, -C. Li Rep. 43'5 ; Barnes t/Colei; 24 
^; .'.Vend. 188; Hartfiekl v. Roper, ib. 615; Rathbun & West v. 
-Payne,. 19 ib. 399; Spencer v. Uticia & Schenectady Railrgad 
"Co., 5 Barb. 337; 'Prand v. Troy & Schenectady Rgiilroad Co., 
, 8 ib. 369, 383; Drew v. Steamboat C'h6sapeak^, 2 Doug. (Mich.) 
, * ft. 33; Ri'own v. Ma^tweil, 6 Hill (N. Y.) 592 ; Aurora Rail- 
*• ' road Co. v! Grimes, 18 111; 585 ; jLane v. Crombic, 12 Pick. 
. . ' ^77; 4 McLeap's R. 291 ; 12 Shep. 39 ;' 10 U. S. Dig. 394; 
'^ttgell onOalTiers, §§ 556', 633, 635, 64Si, 645. If the owners 
, '• ;pf the boat eann'otrecoyer oh account of the* fault on .their 
pi|,rt) ueithet' can the shippers'; f6i> clearly, the obligation of 
%he steambdat'Of its owners to ehipperf* oh the flat-boat cannot 
'be greater in degree than to the o^ijors of the flat-boat. The 
;. .. »«-liabiHty ilrust ^e the same : thei^ oi\jners »or iijiana^ef s of the 
V "'•■'flat were agefits of the 'shippers in this matter! The shipper 
■'■ ." *4iave another remedy, viz., ah actiop 'figaihst the owiiers-o^ 
..•; .ihli flat-boaf as coiiimoh' ciErriers ; ^aiwi ^t remedy is v^ 
. ■ ■Rmple. Tlie carrier is^ftn insurer agains't everything but fhe* 
..'v. *act of God and th6 public enemy .-r-Angetl 6n Carriers,. §14$. 
■?!Eh§^ /iabiht}'^ of t'he owners of 'the flat-boat to 'fthe shippers of 
' ... ; the cotton, under the^^yldence se4«qut4n the*recorS,*canDot 
:';.,•,. ^M^^-doirbt6d.,-*'. ^'- , '" ' ' . \- 

i . jjC ^'. 'The cotiri eryed^also, in sustaining the demurrer ta the 
'.. '4 ,' t>iea of a former recovery by the common carriers of the cot- 
. ton. The recovery was alleged to'have been b^ore a court of 
'•'" 'competent jurisdiction, for the injuries alleged and coiii]jlained 
. ,r-^f in this 'Case. Whether the reco^-ery was by the plaintiff 
■". '; ift this case, or by another party competent*to su?, can makp 
.' ^ ?nt) difference in principle i ote recovery for the same matler 
. .*43 all that the law permits. The owners of the flat-boat were 
competent to sue for and reoover all injury done the cargo. — 
••■ Story on Bailments, p. 144, § 148 ) Parsons on Coht., p. 633. 
. "^^^s /to farmer recovery or adjudication, see Pinny v. Bariaes, 
' n7 Conn. 42l) ; George v. GilleSpie, 1 Iowa R. 421 ; 9 Humph. 
^ 342; Thompson v. Winfield, 1 Miss. 243 ; Pender v. Mts,"2 

• .,- S. & M. 535; Cummiiigs v. McGehee, 8 Port. 349; O'Neal ^.. 
' ■ ' "Brown, 21 Ala. 482 ; 3 C. & H.'s Notes to Phil. Ev. 830 f4 
.; -Greenl.Ev. §§52^528. -^'-^ 



JAWARY TERM, 1855. ' -^^ 199 

»». ? |>» f • . V 1 r : - — : 

'■■*'• Ownei"? of Steambdat Farmer V. McCiaw. 



v# 



6. -The captain and part owner of tlie flat-boat was not s^ ••'-' 
competent witness for tlie plaintiff, and ithe court therefore . .,*.» 
erred in overruling- the motion to exclude him. A recoveryV-'- - 
by the ])laintiff in this case will be a protection to the owneij&.' ,' . ; 
of the flat-boat, and the record in this case would be evidence ■,". . ' 
for them in any suit afterwards brought against them by thQ ^ ■•/^ 
plaintiff; he is, therefore, directly interested, and of cours^- ','•** i.' 
incompetent. — Otis & Jayue t- Thomj 23 Ala. 469. . '^\'^'.»''*' 

7. As to the charges requested : The first asserts the prin- 'fi.'^''\f 
ciple embraced in the second and third pleas, as to which see.:/* v" : 
authorities Cited ^;?rff: The refusal of 4;he second charge wa6 *; . ,«•», 
equivalent to charging the converse of it, viz., that extra- '• ''.f'\ 
ordinary diligence was required on the part of the steamboat,* 
under thte; cirCuinstances ; a^B this,'^t»o, wlie^ the managers 
of the flat-boats were highly culpable. • This is not the law : 
the owners of the steamboat discharged their duty, in pro- 
viding; a sufficient number of eompetent officers and men ; an^-J 
if the officers and men used that care and diligence whicn 
competent officers and men, engaged in the same business, are 
accustomed' to exemse undey sin;ilar circumstances, this will 
excuse the owners, and is all the law requires. Of course, 
their nesponsibility is greater in their character of carriers. 
The legal presumption is, that the master of a vessel will <io 
what is right, and will follow the regular and correct course 

•of trade. — Angell on Carriers, § 643... Tlje third charge as- 
serted, in effect, that if the collision .was "brought about 
directly or indirectly by the unskilfulness and mismanagement 
of those who had charge of the flats, tlie owners of the steam- 
* boat were' nqt. responsible ; and this analysis, it is believed, 
v. demonstrates its correctness. The fourth charge asserts, in 
X ' . substance, that if those who had charge of the flat-boats acted 
r - in a manner which necessarily increased the risk and danger ■ 
of a collision with steamboats, and the officers and crew of 
the steamboat exercised ordinary care and diligence to avoid 
t* a collision, her owners would not be responsible. Ordinary 
^ care — that is, such care as the genei'ality of persons engaged 
in the same business are accustomed to exercise — is all the , 
law requires in ordinary cases ;' g,rid a fortiori, it ought to be 
held sufficient against a party who is guilty, of gross negli- 
gence. The fifth charge contains a proposition relating to 



MiA^AMA. 



Owners of Steamboat Farmer v, McCraw. 



the pleadings ; and the sixth asserts a principle similar to 
that contained in the first and second, somewhat modified and 
•VTaried in the statement. As to all these charges reference is 
• made to the authorities above cited. Charges will be con- 
strued in reference to the proof. — Perry v. Hardman, 12 Ala. 
'. .€04; Lock wood v. Nelson, 16 ib. 294. The steamboat, so far 
' . -hs the proof discloses, was not at all in fault ; no want of care 
.'*" Or diligence on her part is shown, but rather the contrary ; 
•;'. Wliile the flat-boats are sliown to have been in fault in several 
'particulars. Want of care and diligence will not be pre- 
sumed, but must be proved. — Parsons on Contracts, p. 606 ; 

• •% Humph. 184. ■ ■ .{_ 

r V ^ Wm: M. MurpS y^ sonf-ra : 

. '; v. * The casent bar if5*distin^«i3ha:^}le from that 5f Otis v.- Thorn, 

• ^ A4a. 395, which is relied on to susBtaiu the first three as- 

- »..^o-nments of error. That-ea^ decides, that, ■■' after the'issu- 
; • %nce of dh attachment agarnst the steamboat, the -proceedings 

should so 'far conform to thenatwre of the admiralty practice, 
as that the declaration be filed against the boat itself, and not 
against, the owners, and the owners be allowed to intervene 
and make themselves parties, if they desire to do so." In that 
case, ther^ was no proof of oWnejship ; in the case at bar, the 
ownersKip is admitted : the owners did intervene, made them- 
■ *.6clve3 parties, and defended the suit. The declaration is 

- /-iKgainst the boat ; the parties are brought into court by the 
. , ''■;^toceeding against the boat; and the proceedings are assim- 

;^jlated as nearly as may be to the admiralty practice. The 
ifourth section of the act provides, that " the declaration and 
subsequent proceedings shall conform to an action on the case 
for tfie injury." It is believed to be impossible to obey this 
act and yet conform entirely to the admiralty practice : there 
is nonsuch proceeding known to admiralty as an action on the 
. "'6ase, and none known to the common law as an action on the 
/«ase, a proceeding in rem. The attachment is in rem ; but 
* -when it is executed, aud bond given, the declaration and sub- 
sequent proceedings must be in personam. The " subsequent 
.jproceedings " are, the plea, verdict, and judgment. Every 
word in this declaration in personam may be stricken out, 
aud yet a good declaration against the steamboat will remain* 



JANUARY TERM, 1855. 201 'f 

Owners of Steam hoat. Fiinmr v McUniw. 

The second and third pleas are bad. They are irrelevant, 
and the evidence to sustain them would be irrelevant. . The ^ ; 
only issue was, whether the collision took place through the 
fault of the steamboat; if it did, the owners are responsible. 
Otis & Jayne v. Thorn, 23 Ala. 469. Th^se pleas may be true, 
and yet the steamboat may be in fault ; and pleas admitting 
of two constructions must be construed most strongly against 
the pleader. — Lacy v. HoPirook, 4 Ala. 88; These pleas are 
also bad for uncertainty.— 1 Chitty's PI. 539. 

The fourth plea, which sets up a former recovery by the - ■ 
owners of the flat-boat, is also bad, because the recovery is 
not between the same parties, nor their privies. There is cer- 
tainly no privity between the plaintiffs in that suit and the 
plaintiff in this : both have separate and independent rights 
of action for their respective iiyuries. — Davidson & String- 
fellow V. Shipraaii, 6 Ala. 30; 1 Stark. Ev. 191; Duchess of 
Kingston's case, 20 State TKials. 

. McCullough was admitted' to testify under section 2302 of ■*' 
tlie Code. The. case of Otis & Jayne v. Thorn, supra, decides * 
the law of evidence before the adoptuin of the Code, and is 
founded upon section 396 of Ist'Ofeenleaf !s Evidence, which • 
expressly asserts, that the record Would be :no evidence 
against the servant or agent who was called' as a witness. 
The trial in this case was had since the adoption of thcCode, 
.ftnd the witness does not come under the Qxceptions enume- 
rated in section 2302. ^ . »- • . " 

j&OLDTHWAITE, J.^-Tfee^fiiist ^ueatien i^ upon the ac- 
tion of the court in refusing to set aside the declaration. The 
attachment was issued under the act. of ,17t.h. January, 1*844, 
(Acts 1843-4, 98,) and directs tlie sheriff to seize and take 
possession of the steamboat Farmer, with her tackle, apparel, 
and furniture, ,and to keep aiid retain the same in his posses- 
sion, to answer to the judgment which may be rendered, 
unless the master, owner, or some other person for them, enter 
into bond, &c. The first oojant of tlie;declara^ion " complains 
of Edward W. Shields, Jacob B. Walker, and Daniel Walke^ 
claimants and owners of the steamboat called the Farmer"; ■ 
, and alleges that they had the care, direction afld management 
of the Bame, and that by the carelessness and misdirection of 






Ownefrs of Steamboat Farmer v. McCraw. 



"■said! defendants in the management of' said steamboat, she 
ran into the flat/' <fec. The second count differs from the first, 
only in alleging that " the said Shields, as commander and 
captain, had the care and management of 'the steamboat, and 
that the flat was run into by his carelessness and misdirec- 
tion." We have referred particularly tt) the declaration, in 
order to show that it is againat the plirties named therein, as 
defendants, and not the boat itsejf ; ^nd this being the case, 
it falls directly within the d*ecision of this court in Otis \. 
Thorn. 18 Ala. 39.5, \t'here tile attachment was issued against 
.a steamboat under the same statute, and the , declaration was 
againfeftwo of the* obligors in th4 r^levy -bond as- o'wners. 

' The defendants moved the court to set aside the declaration, 
which .w^as rjsfused, aijd the correctness of the action of the 
(S)tJ!rMn this respect was the question on error. It was held, 
that the declaration must be against the boat itself, and not 
the owners ,• ftnd that the refusal "of tJae court to set aside the 
declaration,' was <p, reversible error. 'It is' supposed, liowever, 
by the counsel for-the appellees, that the fact that the defend- 
ant« are admitted by th*e -affidavit, on which the attachment 
issued, to be the owners of the steamboat, atid by the attach- 
ment* bond, which' is' payable to then! as' such, takes the case 
at bar out of the influence of the dedision to which we have 
referred. But, we do not thiyk.sio. The- ground on which it 
rests is, that the ^oi of 1844 gSA^, the remedy against the boat 
alone, and, although persons interested as owners would have 
the right to intervene and defend, the deelaration must be, in 

'^^conformlty with fhe ppoftdss'arfd. object -ef the statute, against 
the boat, and not its owners. There is no difficulty in fram- 
ing a declaration to meet this decision. It should complain 
of the boat itself^ aiM" allege the ih/urj* io have been dpne by 
it, through the carelessness and negligence of those having its 
direction and management. It would be unnecessary, in view 
6f the puFpose of the statute, arid the judicial construction it 
has received, to state the names of the' persons whose careless- 
ness caused the vessel to commit the itijury, although the 
naming of themi would not " be '<5bjectionalfle'. Anjf of the 
owners would have the right to come in and defend the suit; 
and, by analogy to the practice in admiralty, this should be 
done by application to the court, stating that the applicant is 



' JANUARY TERM, 1855. im 

■ • ' y i »* < S^ *» ^ — " — '-^ 

Owners of Steamboat Farmer v.- McOiraW. 

interested in the* steamboat seized, as owner, and shiMJld be ' 
sworn to bj' him if within the State; and not at an inconveni- 
ent distance, — otherwise, by his agent (The Adeline, 9 Cranch 
244 ; Dunlap's Ad. Pr. 161-2)^; and an entry should be made 
upon the minutes of the court; admitting him to defend as 
owner. 

As the proceedings, except so far as they are varied by the 
statute, must be governed by the rules of the common law, 
any facts which would defeat the action, had it been brought 
in case against the owners, will have the same effect when 
pleaded to this proceeding against- the boat. The general 
rule of the common law unquestionably is, tliat if both vessels 
are to blame, neither can recover. — Vanderplank v. Miller, 1 
M..&M. 169: A^errall v. Garner, 1 Cromp. &- Mees. 21; 
Lack V. Seward, 4 Q. & P. 106; Luxford v, Large, 5^ib. 421f 
Woolf V. Beard', 8 ib. 373; Kent v. Etetob, 3 Eagt 18' ; Keii- 
nard v. Burton, 25 Maine 39; Broad well v. Swigert, 7 B. Mon. 
39; Rathbun v. Payne, 19 Wen. 399. But thisirule must be 
understood with reference to faults •which operated directly 
and immediately to produce the collision. — Gummips v. Spru- 
a4oe, 4 Harr. 315. Because a flat-boat- runs at night, when 
she should not, or ties up" in the wrong plaae, would not 
justify a steamboat m running into her, any more than a stage 
coach would be jnstified in wilfullyor^oarelesaly running over 
a man lying asleep in the road ; and in all such cases, if the 
act causing the injury could have been prevented by the use 
of ordinary^ care, the failure 'to use it will render the patty 
liable. There is no inflexible rule, either of the river or the 
roa(3, the neglect of vrhich by the one party Avijl dispense with 
the exercise of 4C0»JEnmon' caution by th;© otheT.«-*Abbott on 
Shipping 238, and cases cited. But "ordinary care" is alto- 
gether a relative term ; and in cases Jike those we have put, 
the want of it means "nothing ' mpje tlian , the faiFure'-to, use 
those precautions which a just regard to the persons and pro- 
perty of others demands should be used under the circumstan- 
ces of the particular case. Of couree, a vessel not in fault would 
not be obliged, in order to escape a collision, to risk her own 
safety, or endanger the lives of her passengers ; but she should 
at least use the best skill and judgment of her officers, and 
the^employment of the means at their command, in order to 



204 ALABAMA. 



Owners of Steamboat Farmer v. McCraw. 



prevent the occurrence of any act fraught with peril to the 
liveaaud property of others. 

Applying the principles we have laid down to the matter 
of the second and third pleas, it will be seen that they were 
both defective, for the reason, that the collision might have 
been remotely and partly caused by the imprudence and neg- 
ligence of the flat running at night in a certain part of the 
river where it was unusual and dangerous for such boats'to 
r6n, or by mismanagement in being fastened broadside to 
another flat ; but we have already seen that neither of these 
circumstances would have excused the steamboat, if notwith- 
standing, she could, by the exercise of ordinary care on her 
part, have passed them without striking. 
■ 'In relation to the fourth plea, there is no doubt that a com- 
mon carrier, as he is ndt absolved from his liability to the 
owner of the goods by the torts of third persons, has the 
right to maintain an action against them for the wrong ; and 
it is equally certain that a Hecovery and satisfaction by him, 
for the injury done to the goods, will be a bar to an action 
b-y the owner for the damage or loss from the same injury .-»^ 
Story on Bail., § 685; ib. § 94. T]ie plea here is artfully 
drawn, and seeks to escape the actio.n^. by setting out a recov- 
«ery by the^ carrier, for the injury committed by the running or 
striking of the steamboat against the flat, which, it avers, 
•' are the same injuries which, the plaintiff's declaration alleges 
to have been done to the said cotton of the said plaintiff." 
But this is not- equivalent to an averment that the recovery 
was for the effect of such injury upon, the same cotton des- 
cribed in the declaration. J^Ton constat, but that the former suit' 
was for the'damager done hy the collision to the cotton of 
some other person on board the same flat. The demurfef 
was properly sustained to this plea also. 
> In admitting the evidence of the owner and person in charge 
of the flat, the court erred, for the reason, that & recovery in 
the action would have placed the witness in a state of security 
'against any action the plaintiff inight bring against him. — 
Otis V. Thorn, 23 Ala. 469. It is urged, however, that he is 
made a competent witness by section 2302 of the Code. But 
if the law of the Code applied, whi6h we do not decide, he 
would not be competent, as the verdict and judgment in the 



JANUARY TERM, 1855. ^^. 

■ ' ' >** * 9 ' A' ' — ' — ~~~ — " — ' — ''1 

•^ Paulliiig V. Watson. • 

suit in which he was offered, if in favor of the plaintiff, might 
be evidence in his favor in another suit against him by the 
same party (Farwell v. Hilliard, 3 N. H. 318 ; Gilmore y. 
Carr, 2 Mass. 171 ; Wetmer v. Slatter, 2 Rawle, per Huston, 
J.) ; and the section referred to ex-pressly provides that the 
objection to the competency of a witness shall prevail in such 
a case. 

The charges are easily disposed of. The testimony on 
which they were founded did not tend to show that the con- 
duct of the flat was such as to contribute directly and imme- 
diately to the act of collision ; and the sple question, thero^. • 
fore, under the law, was whether the steamboat used ordinary 
care to prevent it. The first, third, and sixth charges asserted, 
in effect, that the fanlt of", one vessel, although not directly 
contributing to the collision, dispensed with the want of or- 
dinary care in the other to prevent it, and were therefore 
properly refused. The second 'and fourth shpald have beett • 
given, as they made the liability turn on the question of.ar^- 
nary care on the part of the steSmboat ; and in relation to" 
the fifth, as the correctness of its refusal is n'ot questioned, it 
is unnecessary to say anything. 

Judgment reversed, and cause remanded. 



PAULLING vs. WATSON. 

1. The right to a perpetual injunction of a judgment at law founded on a gaming 
consideration, although the plaintiff therein is an innocent holder for valu- 
able consideration, and no defence at law was attempted, is not affected by 
an erroneous decree of the chancellor dismissing the bill and dissolving the 
injunction ; and if the collection of the money is afterwards coerced by exe- 
cution, it may be recovered in an action for money had and received, if com^ 
menced within six years from the reversal Of the decree on error and tho 
award of a perpetual injunction. 

Appeal from the Circuit Court of Greene. 
Tried before the Hon. Turner Re a vis. 



206 AL!A.BAMA. i^fl^ ■' - ,. , 

' ju ,• /' *.-^.: . , PauUIng V. Watson. ; • , «'.. . : >•, .v^^ 

•'■• Tins was an action for money had and received, and wa^ 
commenced (by summons arid" CDnipla\rit) oil the 4th Marchf, 
1853. The facts of the case, as set out in the bill of excep- 
tions, were ■es fdlloifv^s : 

. " At^the Marcli term, 1838^ of the Circuit Court of Ma- 
rengo county, Watson recovered a judgment against Paullin^ 
for the sum of $1130 -80, founded upon a hote dated Septem- 
ber 17, 1836, made by said Paulling to one Rowland Edson, 
and endorsed by said Edson to Watson for a valuable consid- 
eration. No defence at law was made or attempted by Paul- 
ling. Watson seeking to^ collect the amount of his judgment 
by execution, Paulling tiled a bill in chancery, praying that 
he might be enjoined from its collection, and alleging that 
..•|be note was given for. a gaming consideration — money lost 
^t cards with Edson — wluch fact it is not charged was known 
to Watson. For the facts and proceedings had in this chan- 

• /eery case, reference ma,y be had in tlje Supreme Court to th^ 

^^cord of it there, 'and to the published report in 21 Ala. 280. 
The chancellor granted an injunction, and the case remained 

;^joined' until 'the December, term, 1850, of the Chancery 
Cou-rt of Greene, when the chancellor, upon the hearing of 
the case, dismissed .the bill, and dissolved the injunction. 

»>Wa{soa tliereupon sued ojit a new execution, and proceeded 
to collect his judgment. After the issuance of this execution, 
to-wit, on the 31st day of March, 1851, and before the pay- 
tnent of the modey thereon, Paulling sued out a writ of error 

• ^;^pon the depree of the chancellor, returnable to the then next 
''term of the Supreme Court, wiiere the case was regularly 

continued until the 2'9th' July, 1852. Paulling gave a writ-of- 

^ -r-irror bond on suing out this writ of error, but the injunction 

W;^s not re-instated, nor was a new injunction obtained ; but 

Paulling applied for aninjunction to a circuit-court judge, 

pending "the period the case^ migh|. .femain in tlie Supreme 

,^.jCourt, which was' rcfuseti. 'the sheriif proceeded under the 

•execution to collect tlie debt, ijater^est, and. costs from Paulling, 

and oft the 20 th 'May', 1*51,. paid. ot^r to Watsoii the sum of 

$2319 63, in full of'debt and interest, and the sunl of 126 

^43 court dosts ; and ,$6^^' 20 was collected as connnissions to 

the sher1^.„ but neitlior (3f mese last two sums was ]iaid to* 

Watson. After the receipt of this amount by Watson, to-wit, 



.J^'V-'^ .W»,^JW-»>^' 



.JANUARY TERM, 185&;V..^^^... 3l9 



Paujliug V. Watson, 



tA'j^e ^jh da}' of July, 1^52, the Supreme Court reversed 
the decree of the chancellor, and rendered a decree that said 
judgment be perpetually enjoined ; and in a few weeks af- 
terwards Paulling wrote to Watson, demanding the repay- 
ment of the money which had been collected from him by said 
execution ; and Watson replied, that he ' would examine the 
opinion of the Supreme Court, and ascertain if he was liable, 
and if he concluded that he was, be would pay without suit. 
In reply to a letter from PauUing's attorney, dated February 
2, 1853, he replied, that he would not pay. This suit was 
commenced at the first term to which a suit could be brought 
after notice thai he would not pay; and the summons was is- 
sued on the 4th March, 1853. 

" This was, in substance, alt the testimony on both sides; and 
the (Joort'cbarged the jury, that upon this testimony the plain- 
tiff was not entitled to reeo'yeiv; to which charge the plaintiff 
excepted." * ■ 

No errors are 'assigned "Oji th^ec'ord. 

J. R. John, iar.tlae appellant : 

When a judgment is reversed, the rights of the parties are 
immediately restored to the* same condition in which they 
were before its rendition, and the judgment is said to bfe mere 
waste paper .^ — Dupuy'V. J^oebuck, 7 Alat. 484; Simmons, 
adm'r, v. Price, admV, 18 ib. 405 ; Price v. Sifaimons, adm'r, 
21 lb. 337; Williams v.Bimmons, 22 ib. 425. 

If the above poSitioliibe true, then the injunction which the 
chancellor dissolved, being restored by the judgment of re- 
versal' ot this court, must fee considered as continuing, as be- 
tween the parties, all the tim'e from its first service ; cohse- 
quently Watson' collected the money wrongfully. Collecting 
the money by a nominal legal right, which has* been swept 
away from him by the decree of reversal, he cannot retain it. 
Williams v. Simmons, 22 Ala. 425. 

Watson shows no right to collect the money from Paulling, 
except the naked right given him by the judgment in the Cir- 
cuit Court of Marengo, Avhich has been taken from him by 
the decree of reversal of this court, and is as if it never ex- 
isted.' Coercing the money without right, he cannot be per- 
mitted to retain. He retains, if at all, by virtue of right 



'C\ ^,' ;'•' ALABAMA, v ^^ ' ■/ 

* ' Paulliug V. Watson. 

arising from, or out of, or connected with the reversed judg- 
ment. None of these things exist in this case. His securit)^ 
(the note) and judgment were void, and the decree of the 
chancellor vacated. 

The foregoing positions are also fully sustained by analogy 
drawn from the law applicable to real estate. A party un- 
lawfully dispossessed, so. soon, as he is i^estored to possessions- 
is regarded as continuing in possession all the time, and con* 
sequently may maintain trespass for injuries to the premises, 
as though he had been in the actual possession all the time of 
his disseizin.-^Morgan v. V,arick, 8- Wend. 587, 591; Dewey 
y. Osborn, 4 Cow. 329, 338. , " • 

' .. Watson stood on what lie insists were his legal rights itt 
collecting the money from Paulling, Paulling resisting ; and 
if he coUecteji without legal- right, as he certainly did, if the. 
judgment of reversal, restored the parties to all the rights 
which existed between tliem at the time of the rendition of 
the reversed judgment, then Watson cannot retain, but must 
refund. — Williams v. Simmons, 22 Aia. 431 j Sturgis v. Allis 
& Lee, 10 Wend. 354. ».- -, ' .^^^^ 

Watson asserts a right to the llioney cSollected of Paulling 
through and by virtue of. a gaming security — a judgment 
founded on £^ .note, given to 9ecu<i-e the payment of money lost 
at a game of cards. This security is utterly void. It can 
give him no right to ppliect, nor can it give, him a right tq 
retain. The facttlmt he has^tjie money cannot give it valjd* 
ity sufficient to i^tain.— See Clay's Di^. 257^§ 1 ; Finn.<fe Du- 
l^ney V. Barclay, 15 Ala. 626. . 

' , Money paid onr a gaming security may be recovered back, 
for the reason that tl^e security is utterly void. This was 
money coerced by means of a ^gaming security, and not vol- 
untarily paid, and therefore G«tn be recovered back by this 
action.— iStoify's Eq. PI. a2.4, §*30^; J^on. Jlq., l?i, 1, cli/.t 
1 6, note'c. ' ' ' ' 

There is a well-defined distinqtion takep iDctween illegal 
contracts exeputed avid unexecuted. .If an illegal contract 
(gaming for instance) be voluntarily and fully executed, in 
some cases an action .will r^ot be sustained for the recovery of 
the money back which has .beea Aptually paid. The courts 
leave tl^e parties- to the illegal contract where they roluntarily 



JANUARY TERM, 18S5. [. r 209 

; .. ' " f ■ ' ■ • ^ 

. Paulling V. Watsbn. . .^. 



place tbemselves. This is thp extent to which the cases of 
Tindal v. Childress & May, 2 Stew. & P. 250; Windham, use 
<fec. y. Childress & SJianes, 7 Ala. 357, and Samuels v. Ains- 
worth, 13 tft. '366." All these are (jases of vobintar/ andf full 
execution of the illegal contract by the a-ctual payment of the 
money or thing won. They go. no further, and it may be 
doubted on good authority whether they are correct. — Story's 
Eq. 323-4, §§ 3034, and Foreman v. Hardwick, 10 Ala. ^2o: ' '^ 

But if the contract has not been thus fully and voluntarHj^' • 
executed, money may be recovered. Money may be recov- 
ered back from a stake-holder by a simple notice not to pay 
to the winner, as in the case of Woods v. Duncan, 9 P. 227. 
If a simple notice be sufficient^ filing' a- blll,"&c., eertainlj^ is 
sufficient to show that the party disaffirms the contract, and to 
authorize a recovery. — Foremdn v. Hardwick, 10 Al^. 325. 
Paalling resisted all the time, and occupies a better ground 
than the parties in either* of these last cases. 

'This is not a case bf voluntary payment of money lost at 
plav, * It miarht' therefore be admitted that money lost at 
^tiling, if paid, eduld mt at conilno'n law b^' recovered back ; 
and. furtlier, that* money, lost *at pla^ and voluntarily paid, 
coultf'tot be recovered iTack under the .statute of ,1807 ; for 
tHis was a-cperciv.e payment by paeans ojf' a. gaming security, 
aitd*.the^efere Stdry's poSitioii* is cofrOct on' thiis point, and 
fully coyefs this, cale ; and he i§ fully sustained on this point 
bftthe nUtV c in" Fonb.— 1" Story's Eq., §304. 
""^An injunctioni^'grante'd and perpetttated because from the 
fticis, — ^whether they arise 6ut of a, statute or Otherwise,— it 
iB[ fC^ainst conscience tttidla^N^ thai "ftie partr should proceed. 
f Stm-y's Eq. 194, | 875 '; 3 Dan. Cli. PaStOv " / 

* ■*ir Hie above pasltion be trucfe'liow can a.party who tloes 
pi^ceeS thus'contrarj^ to eqwty, coBe«JeiK;e^ jvh^ laA^^, and by 
such proceeding and, by ixo- .other right collect luoneyj^ claim to 
h51d it on die grdiund of equi^' and good*consci(?nce ? J3ut 
dii.s is & stiir sfritnger 5a^ i 'h€re the injunction, being* pei:- 
pettiatod by relation, operates from its eefvico on Watson. 

After the erroneous^ dismissal of the bill and dissolution of 
t^c injunctio*n, Paulling ha<l nO certain &nd wpll-defined reni*- 
edy by which to prevent the collecfion of the money ; and 
oertainlv he canAot. suffer because of J3ie iij^c^er^tion of 



210 ALABAMA. 

■ _ ,; ^ _ — X ' 

•"••;■.' . PauUinsr v. Watson. 



the coiirt, nor can Watson acquire any riglit b}^ that improper 
action. He is held to know tliat his judgment was void, and 
that the dissolution of the injunction was erroneous. — Carpen- 
ter V. Garrow, 4 Stew. & F: 336 ; Boren v. Chisholm, 3 Ala. 
513 ; Ex parte Sanford, 5 ib. 562 ; Griffin v. Bank at Hunts- 
viUe^.9i6. 201. These Cases show that Paulling could not 
arrest the execution. He made an effort and failed. Did he 
not 'do all he could do to prevent the final execution of the 
illegal contract ? '.'"' 

V The decree of. this, court perpetuating the injunction ope- 
rates, as 'between", the parties to_ it, and upon their rights, in 
theJsamc manner .and to thcf same extent, as though it had 
bsert rendered on -the, d^;f* the chancellor dismissed the Mil 
and' dissolved tlic injunction. 'This court does just what the 
chancellor s'hould-have done, arfd the decree of this court ope-. 
mXps on 'the lights of tli^ parties' just as, if the -{jhhncelloF had 
perpetuated the injunction, ins^tead of dissolving it; the in- 
junction, in legal contemplation, ^operating b^ relation from 
'})« service as though it ha4. never b6'en dissolved.— Sturgis 
.Allis (fe'Lee, 10 Wend. 354 ; DutiCan v. ^virl^patrick, 18 
^g.. & R. 294 ; McJilton v. Love, 13 111. 494. 

•'.^%. H. Smith, cmtra: - , ; . . 

^■^'i'he ground of the actiom is, thdt plaintlff,«afta' the money 
was paid, and mo*:e than six *aonths. befcc^e siiit brought, ob- 
tained an injunction against paying it ; and the other fa^ts 
ai^e, that he was prosecuting a -suit for an injunction when the 
money was collected by legal process lawfully pursued. The 
lujtinetion was purely statutory : no jurisdiction was shown 
iil the case, except that under the statute, and without regard 
to Caches in suffering judgment. The poVer under the statute 
tbeo.wa's, simply Ho enjain^ the judgment as it was when the 
dfecree 6f the Siipreme Court was rendered. The power to 
recover Ijack the money was anothet- distinct statutory right, 
GQttfitied to the winner, ami. limited to six months from the 
payriient. If it had been sli.oWn, in the progress of the cause, 
that the mpney had been lawfully collected, the court would 
}i^vG possessed, no power to order tt to be restored, — 2 Bibb'§ 
Rep. 4. Can the indirect effect of an injunction be greater 
ttoj3j;)J|^ Mve been given dij-pctly by a decree? 



JANUARY TfeRM, 1855. 2ll 

PaulliDg V. WatsQp. 

_ ■ , ■ — . — ^ ■ . . „ 

But the money could not have been recovered of Watson, 
under the statute, within six months, he not being the winner. 
The statute so confines the right on its face ;' all the authorities ' 
so limit it : and the plaintiff admits this in-his argument. As 
between Paulling and Watson, tlie Jatter stands on the higher 
groon'd of equity. For public policy (not out of favor to the 
criminal loser) the collection of the money might have been 
resisted in a particular manner ; but Paulling has, by the com- 
mission of a crime, induced an innocent man to part with his , . 
money for the paper, who has lawfully, and by reason of Paul- 
ling's laches, obtained a legal advantage, of which no court - . 
will deprive him. in favor of' Paulling. If the parties were 
m pari delicto, the legal advantage fairly gotten rnight be i^e- • 
tained.— 2 Burr. 1005'; 'dib.Vdoi; 6 Mass. 381; 6 Cowen'431; . 
3. Pick. 446; 6 Mass. 84; 11 ib. 368. . .- - »■ * 

Watson has not only a bettei- standing in court for this rga-' 
§on, but the plaintiff has also lost his position by neglect :' he-- •' 
had no injunction, but could have got one ; he neglected to 
dq So, and.' lost l)y;^is^neglect. He had a day in cout-t, and* 
full means at command to pursue his advantage ; but he did 
not, and he now sues "to redress4iis loss arising from his own 
neglect.'--^. Ala. 5f^ ; Uk 458 ^ '9 Or. 201 ; 4 S. & P. 836 ; \3 
Dan. Ch. Pr. IBll^^n.d authorities tliereci ted ^ 8 Paig6,^i; . 
7, Johns.' 295. N. \.- • '■ * . ' - , ' ' ;. • ' 

j* The effect' of the injunctioji simply was ^fo restrain: It could- 
rio.t act On the' p;ist, and undo what had Been lawfully done. 
Its effect is, to prevent an act from being done.; its field of 
operation is the future; Its object is preventive and protective : 
,it seeks to -prevent a premeditated wrong, rather than to re- 
dness }m injury already done.— r2 Bland 461 ; 3 i6. 63 ; 2 Story's 
Elq.; § 863- In-- cases like th^ presenT, the' injunction is -ex- 
pressly limited % the statutfe to enjoin judgments at law. — 
Clay's Dig., p. 350, §28. --At the time the perpetual injunc- 
tion was decreed by-.the Siipreme Court, there was nothing ■ 
upon which it could operate : the money, the collection of 
which it restrained, wais already in the possession of Watson, 
and the judgment was satisfied. 

^ When a judgment has been recovered before a competent 
court, the party paying that judgment shall not recover back 
the money, in another action wliile the judgment remains iii 






212 ^ ALABAMA. 

Paulling V. Watson. 



force.^1 Root's R. 120; 7 Greenl. 45; 17 Mass. 394; 3 Conn. 
461; 1 Pick. 439; 3 Day's R. 36. The judgment upon which 

• Paulling paid this money is still in force. ,. The injunction 
. having been dissolved, the plaintiff (Watson) was at liberty 

to pursue his judgment, and collect his money under execution. 
^ *riie appeal did not have the effect of re-instating the injunc- 
" tion.— 3 Ala. 513; 9 ib. 201; 4 S. & P. 336; 7 Johns. 295. 

RICE, J.— tJnder'the act of ,1807, (Clay's Dig. 257, § 1,) a 
note, or other security, given id consideration of money won 
vEt gaming, is void, — even in the hands of an innocent holder 
for a valuable consideration.-^Manning v. Manning, 8 Ala.138. 

• The act of 1812 (Clay's Dig. 350, § 28) provides, that the 
courts of equity shall have jurisdiction in all cases of gambling 
consideration, so far as to sustain a bill for discovery, or to 
enjoin judgments at law. Under this act, a court of equity 

. is bound to entertain a bill, seeking to enjoin a judgment at 
law, which has been rendeixid on a security given for a gaming 
consideration, although the complainant in such bill could 
have defended himself at law, but did not do so. If such bill 
is filed in the proper county against the plaintiff in such judg- 
ment,- before the collection of the money, the right of the 
condplainant to a perpetual injunction of the judgment, when 
the facts alleged in the bill are admitted or proved, is a right 
given by statu^te', and is not depei^dent upon his giving any 
bond,, nor upon the infallibility of any chancellor. The error 
of a chancellor in dismisgiug such bill cannot permanently 
despoil the complainant of his right to a perpetual injunction, 
nor of the substantial benefits lawfully resulting from such 
injunction. If the chancellor, by such erroneous decree, tenff-. 
porarily deprives the complainant of his moneyj by enabling 
the plaintiff in the judgment ^to coerce it from him by exeeu- 
. tion, the reversal of that decree by tlie .Supreme Court, accom- 
panied with, the award of a perpetual injunction, restores to 

. the complainant both tlie legal, anxl equitable right to the 

-. Qjoney.— Finn v. Barclay, 15 Ala^ 626; Knox v. Abercrombie, 
il ib.^^l] Williams v. Simmons, 22^, 425. 

.; A decree, duly obtained under the act of 1812, above cited, 
perpetually enjoining such judgment, is, as between the parties 

•to it, a couclusive ascertaimueut that the judgment was 



;->',• 



JANUARY TERM, 1856. 21t ' 

•S _ • Jlmkins v. ItfcConico, adm'r, &o. 

founded on a gaming secarity, and that the plaintiff therein 
not only had no right to issue his execution, but that his judg- 
ment (in the language of the,act of 1812) is "utterly void and 
of no effect, to all intents and {jurposes whatsoever." — McCall ' 
V. McRae, 10 Ala. 313, and the cases cited above. 

Money collected by execution under such judgment before 
*t was perpetually enjoined, btit after the plaintiff therein had 
been made a party to the bill fikd to obtain such injunction, 
may be recovered batki'n an action for money had and re- 
ceived, commenced at any time within six years after the in- 
junction was made perpetual. — ^Williams v. Simmons/22 Ala.- . 
.425; Knox v. Abei-crombie, 11 ib. 997. 

** ' Upon the facts stated in the bill of exceptions, the appellant ^ 
is clearly entitled to recover, and the court below erred in 

^charging that he was not thus entitled. For this error, the^ 

'; .judgment is reversed, and the cause remanded. 



"A-^i.-.. 



JENKINS vs. McCONICO, Adm'e, &o. 

1. A deed of gift, executed in Virginia in 1824; conveying certain slaves, in 
consideration of natural love and affection, to the grantor's daughter, then a 
married woman, " and the lawful heirs of her body," contained this clause — 
" I do bind mytelf, my heirs, «fec., to make to the above named property a 
clear and undoubted a right, as much so as can be made by word or deed, 

' from the claim and claims from every person or persons whatsoever, to 
my said daughter and her lawful heirs as above mentioned" : Held, that 
the deed created a separate estate in tba ^i^ tuid ex(Jladed the husband's 
marital rights. '' "• \ » '»^:\i :, • -/ 

^ If a party reads in evidence tt» tBe jury ft'certified copy of a deed which 
purports to have been executed by husband and wife, without any attempt 

' to limit its effect as proof, he thereby concedes its genuineness, and cannot 

• be heard, in an appellate court, to say that it was not proved ; although, 
according to the memorandum endorsed on it by the clerk of the court in 
which it was recorded, it was admitted to record on the acknowledgment of 
the husband alone, and the party against whom it was offered "admitted 
that the original had been executed, proved, acknowledged, and recorded, as 
endoi-sed and certified on said copy."' 

3. Where personal property is conveyed directly ii^ ^^ Wfe J j^ ^^"^ ^^^^ ^^^ 



iHl •*. •" ALABAMA. 



Jenkins ,v. McConico, adm'r, &c. 



. . (Separate use j she and her husband may, by their joint deed, vest the legal 
, 0ie in trustees for their use <iud ,the use' of the survivor for life ; and the 
. ', husband, suryiving, may set up s[\6h pleed to defeat an action of trover 
. ^ brought against him by the wife's personal Representative. 
4. Antidmission that a deed wa^ executed implies that it was delivered, ana**;' 
delivery of the deed ^spenses. with the necessHyfor a delivery of the prcP^ 
perty conveyed by it. ;. • ' ' '• i 

6. If the husband s^l or dispose of the^ wife's separate personal* property with- 
out her consent, express or implteS, h^r right of action is suspended during 
coverture only: il" sSe survive, she m^y sue his personal representative for 
th6 coavej*slon ; and if he survive, hdi' pfergonal representative may sueJiim. 
6. In trover, wh$n the thing converted has. a fixdd* value, the true measure of 
damages is ^hat-value at the time of conversion, and the jury raaj^ give inter- 
est upon it; and if the valbe is fluctuating, tho. jury may take its highest 
'.,• value at any time between th'Q c^taversioh an& the trial. * 

■■<!»i.v'<^- •'• ''■•^' • '^^ "' •'. - ' ''■ '■ '• . "T 

- Appeal from tliQ. Circuit Court qf Sumter. >*^ 

^•^ll'rie.d b.qfore the Hon. AlM.* B. G^itherall. 

■■.'^^ ■ • ' -•■• . . •;. ."■>■'.' ^^ 

' 'Trover (under the Code) by'the appellee, as administrator 

of Mrs. Janette Jenkins, deceased, against her husband, Rich- 
ard Jenkins, for the conv^sion of twenty-one slaves, which 
the plaintiff claimed, aS the separate prcmerty of his injtestate. 
under a deed of gift from her f£ither,\John Williams, of whix3lfc 
Ihe following is a copy: , ' * '■ 

; " I, J®hn Williams, of the county of Henrico, anjd State of 

, Virginia, fcr the great love ^nd affection I bare for my daugh- 
ter Janett Jenkins, now the wife of Richard Jei^kins, I give 

' laTier, the -said Janett Jenkins, and the taivjull heirs 'of'lxer 
body, the following property, as followeth, ifo-iCTY^; four' ne- 
groes, by the names of Phebd, 3usau,*Wilsdn, and JT/oWa^, and 

■ i;heir inorease, forever', to thepmper 'USe aiid "behoof of, ray 

• ^daughter Janett Jenicins, and hei'^heii;^ as above meritioned. 
■ i do bind myself my heiirs, <fec., to raal<e the above 'named 

• property a c/giV and undoubted^ Hght, as much so as can be 

• made by wpr(J^6r deedf froii? th^ claim and daimes froin every 
pursoii or purson^ whatsever, to my said daughter and her lawfulh 
heirs, as above mentioned. Given from under my hand a;nd 
seal this tweelvth day of February, 1824. 

" In presence of " John Williams [seal]". 

^. ^ J. P. Camden, 

•. ' Wm. Carter, 
•>"**r-- Mitchell TV. Bradley." ' r^'^r- ' -- «'. 



• , jJANUARY TERM, 1855. 215 

. .•■ , - -^ . f^^i-.: ■ • ; « : ^ ^ 

Jenkins V. McConico, adm'r, &c. 

" On the trial of the cause, on ,the plea of not guilty, the 
. plaintiff read to the jury the following evidence : ' ' - 

* "1. interrogatories of the plaintiff to the. defendant, an4 
the defendant's answers tliereto," which are, in substance, as 
follows : He was married to Janette Williams, the daughter 
of John Williams, in Henrico county, Virginia, on the 14th 
February, 1^22 ; and at the time of their marriage, said John 
Williams was the owner of certain slaves, named Phebe, Susan, 
Wilson, and Maria. The original deed of gift, by which John ' 
Williams conveyed said slaves to said Janette, is not in his 
possession, nor does he recollect that he ever had it in his 
actual possession ; it was admitted to record in the County 
Court of Henrico county, Virginia ; believes the obpy ag* 
- pended to the interrogatories to be a correct copy. The deed 
"•*of trust from respondent and wife, hereinafter more particu- 
larly described, is not in his possession, nor under his control ; 
the negroes Snsan and Eliza, therein mentioned, are two of 
, the slaves conveyed by said deed of gift from John Williams ; 
.'i^/he supposes, seeing the copy appended, that he did execute 
the paper, but does not recgllect having done so ; he requires 
the paper to be duly authenticated and proved ; does not know 
where the original is ;. does not know whether the said papet, 
'is or is not !^ correct'copy of the paper of which it purports 
to be a copy, nqr whether it was executed by the other parties 
thereto- signed." He sold Maria in 1824 or 1825, and Wilson 
in' 1827 ; Mrs. Jenkins did not unite in the bill of sale ; all 
the other slaves are in his possession; or under his control ; . 
they are the same slaves, together with their' increase, origin- 
ally conveyed by said deed of gift ; Eliza was born in May, 
1824, and, the children of Susan were born after the 12th 
Februjiry, 1824.; a demand of said slaves was made- before 
suit brought; said original deeds were executed, if at all, in 
Henrico county, Virginia, and respondent supposes are there 
recorded. . V'^o'^- . ..iv. 'r.'' 

" 2. The copies attached as exhibits to the interrogatories ; 
which were admitted in evidence, in lieu of the originals, by . 
consent of the defendant's counsel ; and the defendant admit-* 
ted, also, the originals of said copies had been executed, 
proved, acknowledged, and recorded, as endorsed and certified 
on said <Jopies." The exhibits here Deferred to arp a^ follows : 



• -.,^ ALABAMA. 



'; * " V ■'* 'J^nMus V. McCoaico, adm'r, &c. V " *. "" 

J, r. ' A capy.of the deed of gift from John "Williams, dliove set 
out, to which is appended the certificate of the clicrk, in these 
yords : 

\ "In Henrico County Court, Clerk's Office, February 1(5. 
J824. This indenture' was proved by theoaths of J. P. Cam- 
dep, Wm. J^^ar-ter, '-and Mitchell W. Bradley, thl^; witnesses to 
the, same, anc( a^itted.to record. .Tpste J. ^. Whitlock^j 
C. H. C. ■ " . ' ' i 

• A copy. 'fest. Lo|in;N. EHett. C,_5,. C." 

,,, 2. A copy of. a deed,, d%ted November 14, 182*^,, by which V 
Sicl^ard Jenkins and his. wife, Janette conveyed ..twd slavq^. 
(Su^an and Elit^a) and some other personal property,-" fbraiid 
in consideration of thp naturj^l affection whi«h they 'bear to- 




iijxm 

Jawing trust^: "|^^ That the" said Gamdeir.and Williamson, their "i 

""{h^irg^ executors,, 4nd;.adraih;stratpr3, shall permit the saitf, \ 

Riotjard. Jejikiri^.and, Jaue^tfe iiie . wife;',. "during 'thdr uatura"^' -'• 

.iives, or the ijetitural life of tlie ^m"yiv'or"tif^..them, £o remain a^ ". - 

• .quiet and peaceable possession of. the iiforesaid slaves, an^', ^ 
^.eir ^f«t.ui;e inc'rejasej^anS othex personal pf opej-ty Hereby, coii|r \ \. 
■^;eyed, a^id to take the profi'ta thereof to their, own uscduriirg*' • 
^eii- lives.'' This deed "purports t6 hav.e'bcen-sig.Ji64 by all 

^ ^Q .pia^rtjiee; viz,,. jRi'chayd Jenkiii^^ Janette Jenkias^y^ ^. 
'Camden, and Samuel T. Williapfison, in the presenc^, of 't^^o 

_^^ubscribi}ig witnesses ; and the foUowiu.sr cei'tificate is ah- 

.;ftexe^toit: 

"In Henrico County Court, Clerk's Ofiice, Uecember 22, 

' ,1^27. This IndonturQ Tjvas acknowledged by Ripha^rd Jeiir 
king, 'a party to the same^ ahd ?^di%ltt^d tp i'ecord, Test^ 

.. ^of^InN.^Ellett, C. fl. a .. ',-;,*■ ' 

..f_,^^ ^ "A copy. Test. Loftin':^. Mett, C. H. C* 

'.•. ' '" 3. The depositions of Mrs. Kimb rough and Mrs. FerTcJl.'' 
, Mrs. Kimbrough's testimony, in ,3ubstance, may be briefly 

. ^ated as follows : She is the daijghtor of said John Wil- 

' ■ liams, and sister of Mrs. Janettc Jxinkins ; Richard iiud Ja- 

'.^^ette, Jenkins were married at her father's house, in Henrico 
county, Virginia, in the year 1822 ; at the time of said mar- 
riage aaid John Williams owned certain negrp.es, ^.omed 



JANUARY TERM, 1855. 217 

Jenkins v. McConico, adm'r, &c. , 



Phebe," Susan, Wilson, and Maria, which. ><tent into the pos- 
session of said Jenkins and wife shortly after their marriage.; 
does not recollect exactly how long they remained in said 
Jenkins's possession, but thinks it could not have been more 
than twelve or eighteen months before he sent them back to 
her. father ; a short time after tliey were sent back, they again 
went into the possession of Jenkins ; knows that Jenkins was 
acquainted with the manner in which her father intended the 
negroes should go, "because, as, before stated, he became 
offended because they.w^fe not givrai to hini'to 4o w^ith as he 
pleased" ; recollects that Jenkins came after the negroes him- 
self the second time they went into his possession, and, as 
witness then understood, took them home Again upon the 
terms on which her father was willing to give them — " that 
is, that they ^ere to be for his daughter and her issue'"' ; and • 
thinks, though i^ not certain, that a defed of gift was made by 
her father, " at or about the time the negroes went into the 
possession of Jenkins the second time, conveying them to his 
daughter and her. issue." 

Mrs. FerrelLtestified, substantially, as follows :, John Wil- 
liams was her husband, and Janette Jenkins was their daugh- 
ter f Janette married Richard Jenkins ; at tlie time of their 
marriage, John Williams owned the negroes Phebe, Susau^» 
Wilson, and Maria, who were afterwards in the possession of 
said Jenkins, "John Williams having given them to him and 
his wife ; the negroes were given to Jenkins for the benefit of.^ 
Janette and her children" ; they were afterwards in the pos- 
session of John Williams again, but witness does not know 
the cause of their returning to his possession ; Williams re- 
tained them in his own possession until he gave them to Jen- 
kins a' second time ; a deed of gift of these negroes was made 
by Williams, " for the benefit of Janette Jenkins and her 
Ireirs", but witness does not recollect the time when it was 
made ; " heard John Williams frequently speak of the man- 
ner in which he intended to give the 'property, but does not 
recollect whether these intentions were expressed before or 
after making the deed of gift ; he stated, that he intended 
giving the property to his daughter Janette and her children." 
On cross-examination she stated, further, that she is about 
eig^ty-eij^,t.^eaj8.old j ih&t her^mei^iy has beea good, -bat 



\ 



218 ALABAMA. 



Jenkine v. McConico, adm'r, &c. 



is not SQgood now— remembers matters thaVpccuBredT a long- 
time ago, better than those of more^ recent occurrence ; does 
not remember when Eichavd Jenkins was inarried. nqr wh^n 
John Williams died,*n6r\yhen. said deed of gift was made'; 
did riot read the deed, but heard it read by Williams ; did 
not hear nor know of ariy cQjitract, existing at the time said 
'. negroes we^'fe first delivered by Williahas to Jenkins ; does 
not know how long Jenkins retained possession of them a^ter 
•y' the first delivery, but it was not long ; does ijot know whether 
she was present wljen- the slaves vs^ere first delivered to Jen- 
* kinS, but thinks she. probably was ; does not recollect of 
heari'ng any cpnversation between Williains and Jenkins, in 
reference to these slaves, before Jenkins obtained possession 
of them. ■ % • 

"4. The Revised Code of Virginia of 1849, from which 
plaintiff read pagers 513 and 514 ; the Revised- Code of Vir- 
ginia of 1819, vol. 1, frpm' which plaintiff read Section 15 on 
page 365, section 51 brf page 432, section 6 on page 363, arid 
section 11 on page '364; 1st Munford's Virginia Reports, 
from which plaintiff rea'd the cas€ , stated af page 618; Ist 
Call's Virginia Reports, from which he read tlie case stated 
*at page 190 ; 12th Leigli^s Virginia Reports,. from which he 
<^fiad the case st£vted*at.page:445 :. 10th Leigh's Reports, from 
which he read the case stated on page 5'; 9th Leigh^s Re- 
ports, "from which he read .tll6 case stated on page 245 ;. 3d 
Grattaris Virginia Repor.t^, from .which he read' -the case 
stated on page 1 : 6th Randolph's Virginia 'Reports, from 
which he read ..tlie ca«e stated, on page 135 : and 6th Mun- 
ford's Virgi|iia Reports^ From y^'hich lie read the ease statc'd 
on page 581 ; arid it was agreed by counsel, that any statute 
of Virginia, and any decision of the Court of Appeals of that 
State, that either party T^ij^ht, wish to refer to in argument, 
either in this court, ei" iri'the, Supr^epie Court, if an appeal 
should be taken, should be considea-ed in evidence. 

" 5. Evidence tending to show the conversion and valtie ot 

the slaves sued' for ; in 'regard *tO;w.lycii talue thQre was a 

,. , conflict of evidence, but there was no controversy as to the 

• fgLct that two slaves, conveyed in the deed of gift from John 

''Williams to Jariette Jenkins referred to, 'had been sold "by 

the defendant. r.'.-»>;^A.Mi a^ .\,^if -,^^^t v^^-y^^' 



JANUARY TERM, 1855. 219 

-4, , . _j . U 

Jenkins v. McConico, adra'r, Ac. 

" Defendant then read in evidence the following depositions:" 

1. That of Jordan P. Camden, who testified, that he was 
present at Richard Jenkins's marriage, in 1822, in Henrico 
county, Virginia ; " there were negroes living with him after 
the marriage, by name George, Harry, Phebe, Dick, Betty, 
Susan, Wilson, Maria, Charles, Charlotte, and Albert ; all 
these he inherited from his father's estate, except Phebe, Su- 
san, Wilson, and Maria; these last four he acquired by his 
marriage ; said Jenkins exercised ownership and'control over 
said slaves ; he lived at a dist-ance of two or three miles from 
his father-in-law, John Williams ; witness believes that- Jen- 
kins paid taxes on said negroes' from 1822 until he left Vir- 
ginia somewhere between 1830 and 1835, except'on Wilson, 
whom he sold to Neal McCurdy of Richmond, dnd Phebe, who 
died before he left Virginia ; Jenkins always treated them as 
his own, and received the profits of their labor ;" witness dpee 
not recollect that Jenkins sold Mrfria, nor can he say when 
Wilson was sold, or for what price, or "whether said Johji 
Williams was then living; thinks Williams died intestate, 
because (as, witness knows) his son, Thomas returned from 
ii^abama and administered on his estate. .'- 

*■* 2. That of Neal McCurdy, who testified, fhat he knew 
Jenkins twenty-fitve yfears ago, Mtlien h^ lived in Henrico 
county, Virginia, some ten or twelve miles distant from wit- 
ness ; '' does not know how many negroes he then had in his 
possession, and. cannot. say anything as to ownei'ship or. con- 
trol of such negroes as were under him ; does not know where 
he obtained any of these negroes, or \vho paid taxes on them ;" 
witness bought a boy named Wilson from.. him several yep.i's 
before he left Virginia ; the price, as well as recollected, was 
$225 ; said Jenkins executed the bill of sale himself, and made 
the contrapt of sale. 

"This was all the evidence"; and thereupon the court 
charged the jury : 

• t;." That said deed from John Williams to Janette Jen- 
kins conveyed to her a separate estate, so that. the defendant 
took, no title thereby." 

J2. " That,, if the jury believed the evidence, the deed from 
Jenkins and wife to Camden and Williamson, did not oppose 
any obstacle to the plaintiff's recovery." 



220 ALABAMA. 

K, , : . 



Jenkins v. McGonico, adrn'r, &c. 



3. "That, if' the jury should find for the plaintiff, the mea- 
sure of damages would be, the highest value proved from the 
time of the demand %o the time of the trial or the value at the 
time of the conversion, .with interest on that value, except so 
far as the. two negroes alleged to have been sold were con- 
cerned ; and that, as to them, the jur\r might ftnd the. sums 
for which they were sold, with interest therein to tlie :time 
of the trial." ,. / . / - '" -' ■ ' .' ' " 
-, . /The defendant e?fc^ted ta'eacb One of these charges, and 
he now assigns them for otiw^^ '* 

I. W. GrARROTT, with wliom was J.'G. Baldwin, for the 
appellant : 

I. It is submitted that the deed of gift from .John Williams 
to Mrs. Jenkins, then the wife of appellajit. does not convey 
teher a separate estate. ■'..-»■ 1 

" The instrument is perfect -in itself ; and the first cliarge of 
. the court is, that this d^ed of itself, without extraneous aid, 
••€onye3^ed a separate estate- to -Mrs. Jehtics. The instrument 
is clear atid unambiguous, and thougK obnoxious, to criticism 
on the score of orthography and grammar, there is no tais- 
taking its sense and import. It contains, Is-t, the considera- 
1i<?n wjiicji moyfed the grantor tor make it*; 2d, the obJ6ei ot 
his bounty, and the^ language proper to carry 'into eflect his 
intention — '"I give to her the said Janette Jenkins and the 
lawful heirs'of her «body^*ttie followiijig ^r?iperty," &e. ; 1>d, 
the manner the grantor intended the property to be held — 
viz., *' to the proper usa^nd behoof" of my daughter .Janette 
Jenkins and her heirs'^ ; &,nd, 4th, the grantor binds liimsolf 
to-Hiake a clear and undoubted right to the property "from 
the claim or claims from every person or persons whatsoever, 
to my said daughter and her lawful heir's, as above stated'V^ 
inotluer words, John WiHiams bound himself to warrant the 
title to the property to his "daughter. ' ? v 

■*■■' Let, then, all the mattery in evidence as fehown in the reicord 
Ije- excluded for a mothenifc, 'and let this deed be' subjected to 
the proper tests, and it will ])c seoii that it docs not exclude 
the maiital rights of the husband. " The charge of the court 
is, that "said deed from John Williams to Janette Jenkins 
conveyed to her a separate estate, so that the defendant took 



JANUARY TERM, 1855. 221 

Jenkins v, McConico, adm'r, &c. 

. ___ , ^ j t, 

110 title to the property given thereby." The law favors the* 
rights of the husband, and " it is necessary that the instrument 
under which the claim is made must clearly speak the inten- 
tion of the donor to exclude the husband, otherwise he shall 
take the property."— Hale v. Stone, 14 Ala. 810. "The 
intention must be clearly and unequivocally expressed to crer 
ate a separate estate in order to exclude the husband." — Pol- 
lard V. Merrell & Eximer, 15 Ala. 174. " The language used 
should leave no doubt of the intention, and must be such as to 
forbid the court to speculate on what the probable object of 
the donor might have been." — 15 Ala. 174, supra., " The pur- 
pose jnust clearly appear beyond any reasonable doubt — other- 
wise the husband will retain his ordinary legal marital rights 
over it."^ — 2 Story's Eq. 1381, (quoted in 15 Ala. sup-a); also, 
Newman* v.i.James & Newman, 12 Ala. 29; Brown v. Johnson, 
17 ib. 232; Gould v. Hill, 18 ib. 83 ; Welch v. Welch, 14 ib. 
7-6; Mitchell v. Gates, 23 ib. 438; 2 Story's Eq., § 1383. ' 

1» The words here are, that the property is to be held •' to 
the proper use and behoof" of my daughter. There is no- 
thing in this language which points to the husband, and clearly 
nothing which indicates an iiitentiqn to exclude his rights. 
The following authorities clearly, show that these words are 
not sufficient to create a separate estate : — In Tyler v. Lakia 
6 Cond. Ch. R. 74,450, (quoted in Hall v. StQiie, 14 Ala. 811^) 
the trustees were directed to pay certain shares of, two femes 
covert " into their own'pixjper and respective hands, to and for 
their own proper use and benefit." These words were held 
by the Lord Chancellor to be insufficient. ^Sq the words " %t' 
her own use and benefit" are also insufficient.—- Kensington 
V, BoUand, 2 M. &K. 184, (quoted and approved in 14 Ala.. 
811). In Mitchell v. Gates^ 23 Ala,.. 438, t|ie words used were^ 
"to remain in peaceable possession," and '" to take the profits 
thereof to her own use and benefit during' her natural life," 
and "then to descend to he* heirs." In this- la^t cage, the 
court say — " 'To his us&,'-' to his- own use,' ' to his own proper 
use and behoof,* what are they but the same thing.'?" — See also 
Im this poiirt, IngCrV. F-of renter, 6 A-la., i418; Welch v. Welch, 
14 ib. 16: Pollard v. Merrell <fe Exitner, 15 J$. 169, aiidx5^ses 
cited in cases above referred to. .. 

'2, The Virginia cases do- not maintain adifierent doctrine. 



^^5 ALABAMA, jv, 

Jenkins v. McConico, adm'r, Ac. 

They are probably more, liberal in construing gifts, &c. in 
favor of femes covert, but they still maintain the great princi- 

. pie, to- wit, that it must appear that the marital rights of the 
husband were intended to be excluded. " I can find no'case 
where the husband or his creditors are excluded, except by 
express words. of exclusion, or words from which that inten- 
tion can be fairly drawn." — Scott & Wife v. Gibbon & Co., $ 
Munf. 90, on pp. 93-4 ; ^est v.. West's Ex'rs, 3 Rand. 373 ; 
Perkins v. Dickinson & Co.-, 3 Gratv B35, iand other cases in- 
volving the principle, in all of which it will be seen that the 
Court of Appeals resorts to a process of reasoning, to show 
either from the deed itself,, or from the circumstances under 
which it was made, that the marital rights of the husband were 
excluded — thereby plainly showing that it must be made to 
appear ill some way that the. rights of the husband did not at- 
tach — ^otherwise they would be regarded as in force. 

o. Having thus shown that the deed in this case, so far as 
examined, does not convey a separate estate, it is submitted 
that the balance can have no influence upon the question. As 
far as examined, tte conveyance is perfect — it uses proper lan- 
guage to convey, points out the grantee, describes the pro- 
. perty,,and then sets forth the manner in which this property 

^was to be held — to-wit, "'lo the proper use and behoof of" 
Mrs. Jenkins. There is no ambiguity thus far, every thing is 
as plain as could be .desired. The gran-tor then adds, " I bind 
myself, ray heirs, &c., to make the above property a clearand 
undoubted a right, as much so. as can be made by word or 
di^pd, -from the cjaim and claims frem every person or persons 
whatsoever, to my said daughter and her lawful heirs, as above 
mentioned." Thisiitiiounts to no. more than an obligation to 
warraptth^ title, a? if the,grautor had said, " T bind myself^ 
ray heirs, &c., to ^warrant the righl of said property against 
the claim; and claims from every person or persons whatso- 
ever, to my said daughter and h«r lawful heirs, as above men- 
tioned." This is the only construction that can be placed on 
fcliis portion of the deed, so as to make it consistent with the 
balance. It comes in the proper place for a warranty, and" 
the language used is appropriate to this object. It could not 
be intended to control in any way the preceding parts of the 
deed, because.no such idea is made to appear, and no auch 



^ JANUARY TERM, 1855. ^ 

' . ,^ « Jenkins v. McConico, adm'r, &c. 

suppo^t?on bah'be made without producing confusion. The 
grantor had already fixed the manner in wliich he intended 
the [fifoperty to be held — viz., " to»^e proper use and behoof 
of" his daugliter, arid if this letter portion of th6 deed was 
allowed to liave any influence, it would but obscure a sentence 
which, by itself, is perfectly j)l£tin. It could not be intended 
to have any influence on the way the daughter was to hold- 
the property, for tlie further reason that the donor binds him^ 
self to make a good right- to his* daughter, and doe.3;notiQ 
any way allude to what the daughter was to do with the pro- 
perty after she obtained the right. Consequently, as the hus- 
band only took* the- .p/o^erty fhrjDugh his'wife, and could only- 
get the right after it' Came to her: and as nothing is said 
showing an intention to exclude his marital rights after it did 
come, to her, it follows inevitably tha*t th.O' property vested in 
.jiim, the mbment title passed to his wife. .. . ,■■■': 

II.. The second charge is, that the deed of lili'. and Mi^. 
Jenkims to Camd(^ and Williamson, presented no obstacle to a 
Recovery in this' case. This is clqarl^' erroneous; because, 
cveii conceding that this deed conveyed to Mr^. Jenkins a 
separate estate, stiU.sheTia'd at^right to tionvey it as a, feme 
sole. This doctrine is fully shown in* 2 Story's Eq,, §§ 1391,, 

> 1393-94-95; 2 Leigh 183 { 9ib. 200 ; -3 Rand. 373, (377-); 23'* 
Ala. 639. The fact that the husband joined in the deed, show's 
hia consent thereto, and strengthens the defence of appellant. 
Til. The court charged the jury that the measure of dam- 
ages was the highest value proved from tftfe time of the de- 
mand to the trial.. This* is error. The measure. of damages 
is' not the highest value proved, bift the value at any time be- 
tween the demand and trial.' — Tatum v. Manning, 9 Ala. 144, 
(149); Lee v. Matthews,. 10 .?*.»682, (68S^9)'; Ewing j»'. Blounf, 
20>. ()94,(695). : >.' • ' - . ' ' 

,IV. The court also ej-red in its-cliarge.gjs to thettwa negl-oes 
sold ill 1824 or 1825, Q,r[d 182'7-^being tlwit the measure of 
damages as to therii was the p%)^ for ^wliieh.* they sold,! and 
interest thereon... • v-*" ^j'.:,= ,v^- , -, > •' '« 

■:. 4plst. The rule is not^tjie price -at which they sold, but the 
value; 2d, that the jury raay assess the damages either at 
the time of conversion, or between that time and the time oi 
ig^^u'The court had no right to limit them to the price fiw? ' 



224 Iv"^" ALABAMA. 



Jenkins v. McConlco, adm'r, &c. 



wliich they were sold, nor to the time of the conversion. It 
may be that the value between the date of the conversion and 
the trial, was less than at the time of the conversion ; and the 

A jury should not have been precluded from finding less dam- 

• • ages.by the charge of the court. 

2. The couft erred in charging the jury to find interest' on 
■ jf the value of the two negroes that were sold. When the hus- 
'band and wife live together, as in this case, and the husband 
receives and uses the proceeds of the wife's property, he can- 
not be made to account therefor. He could not be made to 
' account for the, hire of the slaves in this case ; and if he could 
not, then he could not be made liable for interest on the value 
'of those he had sold.— Clancy's Husb. & W. 352-3: Powell v. 
Hankey & Cox, 2 P. Wms. 82, (83). 

Y. But in no event can the husband be made to account for 
the rents and profits of his wife's separate estate in a court of 
law. He can only be made to account, if at all, in a court of 
equity, where complete justice can be done to all parties, by 
settling the' ^qpiities ^etween thenj.- let, it is litigation be- 
tween a trustee in ec^uity ahd a cestui que trust, and is there- 
fore a ra'atter of peculiar jurisdiction for a chancery court ^ 

•;• - i{<^;tftis a matter, of aocpunt extending through many years,. 

^ . Av*here the husband liks equitable rights as well as the wife, in 

, •' the nature of equitable sets-off for so much of the proceeds of 
th^ .wife's property as he may lia,v« applied to'lier benefit. For 
instance, if the husband was not of sufficient ability to main- 
tain his wife without the use of the profits of her separate 
estate, ^nd bad used such profits to maintain her in a manner 
suitable to her rank, there tlie husband would not be held fb 
account, or if to account, would be entitled to a deduction for 
all such sums as he had so" expanded. — Clancy on Rights 351-2. 
So, if the husband could show an express" authority from 
the wtfe to receive and use for his own benefit the profits of 

• \ her separate estate, he would Dot in equity be held to account. 

■ ^ Clancy 852. And if she neit^w acquiesced or objected to the 
reception of the rents and profits, Still the husband would not 
be held to ficcount.--i/>. 352. So also, if the husband had ap- 
plied the profits of t\ie wife's separate estate to the use of the 

^ family, or in the purchase of jewelry for her, he would not be 

1 held to account. — lb. 353. These authorities conclusively^ 






JANUARY TERM, 1855. 226 

' / ■ ' I ' ;— ' - '>l|.l » 

.'' . Jenkins V. McCouico, adm'r, &c. ^ "■ ' 



sfiow that the husband can only be held to account under 
peculiar circumstances, and when so held, a court of equity, 

, whictiit is insisted has alone jurisdiction in such cases, will 
allow him a deduction for all such moneys as have been ex- 
pended for the benefit of the wife. But it is apparent that a 
court of law is wholly inadequate to adjust the rights of the 

.'husband and wife, growing out of the trust estate of the wife. 

Turner Re a vis, contra: 

I. The deed from John Williams to Janette Jenkins creates 
a separate estate. The orthography, syntax, and form of the 
deed clearly show that it was written by a person not only 
entirely ignorant of legal forms. and technicalities, but inca- 
pable of expressing himself with any accuracy, clearness, or 
precision. Such a deed is construed with mtich more liberality 
than any other. — Saunders v. Saunders, 20 Ala. 716. The 
deed was made by a father to his married daughter and tlie 
lawful heirs of her body, in consideration of natural love and 
affection, to the proper ubc of his daughter and her heirs as 
above mentioned ; and the, donor, as if fearful that these 
words did not exclude, the marital rights of the husband, binds 
himself to make to her and her lawful heirs, as above men^ 
tipned, as clear and undoubted a right to the property as cjan 
be made by word or deed, free from the claim asd^lairas of 
every person or persons whatsoever. What stronger language 
could be used by an ignorant person, showing an intention to 
exclude the husband from any interest in the property? The 
case of Griffith v. Griffith, 5 B. Mon. 113, is fully and strongly 
to the point, that the deed gave a separate estate to Mrs. 
Jenkins. 

The deed was made in Virginia, where the courts, in the 
construction of gifts to married women, lean strongly against 
,the marital rights of the husband. In this respect, the courts 
be that State differ from the coui'ts of this.-^Scott v. Gibbon, 
5 Munf. 86 ; Smith v. Smith, 6 ib.bSV, West v. West, 3 Rand. 
373 ; Perkins v. Dickinson, 3 Grat. 335. The last two of 
these Cases are very strong ones, and are in direct opposition 
to the cases relied on by the appellant's counsel, in 12 Ala. 42, 
15 ib. 169, 21 ib. 414, 23 ib. 438, 2 Port. 463, 6 Ala. 418, and 
14 ib. 803. The last two cases cited from the Virginia Re- 
15 



ALABAMA. .%•. 



Jenkins v. McConico, adm'r, &c. 



■ ports show, also, that the courts of that State look to evidence 
dehors the conveyance, in order to ascertain an intent to ex- 
clude the marital rights of the husband. In construing a deed 

; Made there, the same rule must prevail here ; and if there be 
any doubt that John Williams intended that Mrs. Jenkins' 
husband should have no interest in the property, that doubt 

«h removed by the testimony of Mrs. Kimbrough and Mrs. 
JFerrell. The deed, then, according to the law of Virginia 
where it was made, creates a separate estate. It is not ma- 
terial, therefore, whether it would have that effect if made 
here, or not. 

But the deed creates a separate estate, no matter where it 
was executed. A gift to a married woman, "for her own 
proper use", was held to create a separate estate, in Snyder 
V. Snyder, 10 Barr 423 ; in Warren v. Haley, 1 S. & M.' Ch. 
Rep. 647 ; and in Griffith v. Griffith, 5 B. Mon. 113. The 

.deed now before the court shows a much clearer intention to 

exclude the marital rights of the husband than was shown in 

..either of these cases ; for it not onlj contains the same words 

, sKowing an intention to create , a separate estate, but others 

•-showing such intention. It warrants the property to her and 

-.the heirs of her body, " from the claim and claims of every 
person or persons whatsoever." , These terms alone are suffi- 
fcient to create a .separate estate, as was held in Brown v. 
Johnson, 17 Ala. 232 ; and they certainly do in conjunction 
with the words, "to her proper lise and behoof." In Brown 
V. Johnson, supra, a deed from a father to his married daugh- 
ter, "and her heirs after her, free from the claim or claims of 
anj person or manner of persons whatever", was held to 
create a separate estate. The deed before the court is from 
a father to his married daughter, and the lawful heirs of her 

"body, to the proper use and behoof of his daughter and her 
heirs above mentioned ; and he binds himself to make her as 

. clear and undoubted a right |o the property as can be made 
by word or deed, free from the claim and claims of every per- 
son and pei'sons whatsoever. 

In Newman v. James, 12 Ala. 29, a gift to a married wo- 
man, " to have and to hold the same for her use, benefit, a.nd 
right, without let, hindrance, or molestation whatever ", was 
held to create a separate estate. Such, also, was held to be 



•JANUARY TERM, 1855. 



Jenkins v. McConico, adm'r, &c. 



j,he effect of the wordjs " exclusively to her and the heirs of 
ifertbody forever ",up a bequest to a married woman, in the 
case of Gould v. Hill, 18 Ala. 84. Such, also, was held to be 
the effect of a conveyance to a married woman, " to and for 
her only use and benefit", in Cuthbert v. Wolfe, 19 Ala.B73. 
In Furlow v. Merrell, 23 Ala. 705, it was held, that a bequeajfe 
to a married woman, " entirely for her and her children , 
would create a separate estate. In Margetts v. Barringer, 7 
Simons 482, a bequest to a married woman, " for her own use 
and benefit, independent of any other person ", was held to 
crea:te a separate estate. In a case cited by counsel,' in 5 Ves. 
520, a disposition to a married woman, " for her own use ", 
was held to create a separate estate. The same words \vere 
• held to have the same effect, in Scott v. Gibbon, 5 Munf, 86. 
The same words were held to have the same effect, in a case 
decided by the Supreme Court of Pennsylvania — see note 1 
tgp'. 521 of 5 Ves., first Am. ed. In Hamilton v. Bishop, 8 
Yerg. 33, a gift to a married woman and the heirs of her body, 
to the use of herself and her children, and to remain in her 
possession for the use and support of- said children, forevei', 
♦^vas held to create a separate estate. The case of Johnson v. 
Thompson, 4 Dess. 458, is still more favorable to the wife 
than any of the cases cited. See, also, Taylor v. Stone. 13 
S.&M. 652. 

Now, the words of the deed before the court — " I bind my- 
self to make her as clear and undoubted a right to the pro- 
perty as can be made by word or deed, free from the claim 
.and claims of every* person and persons whatsoever" — ^re as 
Qxpressive of an intention to exclude the marital rights of the 
husband, as the words used in the case- of Brown v. Johnson, 
Newman v. James," and Margetts v. Barringer. And the 
terms "proper use and behoof", are equivalent to the terra 
" exclusive", in Gould v. Hill ; to the tprms "ior her only use 
and benefit", in Cuthbert v. Wolfe ; and to the term "en- 
tirely", in Furlow v. Merrell. See Webster's Quarto Diction- 
aryj for definitions of the several words. The terms " proper 
use and behoof" receive a different construction, when used 
in a deed of this description, from what they receive when 
used in other -conveyances. This is expressly decided in 
Griffith V. Griffith, 5 B. Mon. 118. What the court say to 



/ 



■•^ 









- Jenkins v. McConico, adm'r, &c. 

e^ ; 



# 



the contrary, in Mitchell v. Gates, 23 Ala. 447, was not ne- 
cessary to the decision of that case, and is unsustained by au* 
* thority: None of the.cases cited by the counsel for the appel- 
lant, which were decided by this court, have any resemblance 
to the case at bar; and the cases cited from other courts are 

gainst the weight of authority cited for the appellee. It is 
useless, however, to labor this question ; for the law of Vif- 
ginij;, is decisive that the deed to Mrs. Jenkins gives her a 
separate estate. * 

• II. The only question as. to the effect of the deed purporting 
to have been made by Jenkins and his wife to Camden and 
Williamson, which arises upon the record, is, whether the exe- 
.cution of the deed by Jenkins o/on^onveyed the legal title, 
so that the administrator of Mrs. Jenk^s cannot recover the 
property af law. It is very clear that it cannot have that 
effect — first, because the legal title was in Mrs. Jenkins, a^d 
he^could not convey it (Hooper's Bx'r v. Smith, 23 Ala. 639; 
i3 S.'&'M. 652; 8 1^. Mon. 33)'; ^econdly^ because the deed 
was not executed, accepted, or assented . to by the trustees 
<4 Gilm. R. 159; 10 Misso. 411; 4 Hei?. & Munf. 415). 

The question v^hether Mrs. Jenkins could convey a title td 
her separate estate, which could be s6t up at law, does not 
arise upon the record. The bill of exceptions states, that all 
the evidence before the jury-is set out in it, ^nd does not show 
that the deed was ever executed or delivered by Mrs. Jenkins, 
or that it was executed, accepted, or assented to by 'the trus- 
tees. The only, evidence of the execution or delivery of the 
deed is, first, the answer of Jenkins himself to interrogatories 
propounded to him by the plaintiff, that he supposes he exe- 
cuted it, but has no recollection of having done so ; tharfc he 
does not know whether the other parties executed it ©.r not ; 
and that he requires the deed to be duly authenticated and 
proved ; secondly, this statement in the bill of 'exceptions : 
" The plaintiff" offered and read to the jury the following evi- 
dence : 1st, interrogatories to the defendant, and his answers 
thereto ; 2d, the copies^ attached as exhibits to the interroga- 
tories, whith were admitted in evidence in lieu of the originals, 
by consent of the defendant's counsel. The defendant also 
admitted that the originals of said copies had been executed, 
prav4}, ackiMwIedged, and recorded, as endorsed a'nd certified 




# e 



^ flAo. % 



JAl^UARY TERM, 1855,.. . * - ^ 

— — — *- ■ : »^-v — — i — I ,^ » I' rt' . 

Jenkins v. McConicp, adra'r,.&c. • < 3 ' 



oA said copies." Tlie copies referred to are-the deed'df gift 
from John Williams to Janette Jenkins, and tlie deed pur- 
porting to have been made by hep and her husband to Camden 
and Williamson. The certificate endorsed on the deed of 
gift shows, that the deed Avas proved by three witnesses, and 
recorded. The certificate endorsed on the deed to Camden 
and Williamson shows that it was acknowledged by Jenkiiw'. 
► > only, and does not show that it was proved as to any of the 
other parties. It will be perceived from the bill of .exceptions^ 
that the admission of the execution of the latter deed is ex- 
pressly confined to the evidence of the fact furnished- by tEo 
certificate endorsed upon it. This admission goes to the same 
extent precisely that the admission of Jenkins in hia anst^er 
goes to, and is in exact agreement with it. The consent of 
the defendant's counsel that the copies should be read in lieu 
of the originals, was only a waiver of the production of the 
oiiginals, and not an admission that the originals had been 
executed. This is shown, not only by the fact that there was 
a subsequent admission as to their execution, but by the ex- 
press limitation of such admission to the evidence of the fact 

♦of their execution furnished by thon^ertificate endorsed upon 
them, and by Jenkins' statement under oath" that he did not 

, know whether the other parties to tbe deed purporting to be 
made by him and his wife (a fact which he must have known 
if it existed) executed it or not, and his requirement that it 
should be duly authenticated and proved. It seems entirely 
clear, then, that Jenkins not only cautiously avoided an ad- 
mission of the execution of the deed to Camden and William- 
son by any one but himself, and that there was 'no evidence 
of its execution by any of the other parties, but th^t he did 
not rely upon it in the court below. ' 

The fair inference from the .bill of exceptions is (and which 
is the fact) that the defence set up in the court below wa-s, 
first, that the deed of gift to Mrs. Jenkins did not create "a 
separate estate, and secondly j^ that the property had been de- 
livered to Jenkins shortly after the marriage, and was there- 
fore presumed to be an advancement ; and that consequently 
the subsequent execution of the deed of gift could not affect 
the rights he acquired by the first delivery.— -See the testi- 
mony introduced by the defendant. The bill of exceptions 



f 

4 



, ;^^'. • *^/ ALABAMA:, 

' * ' * ^%r ' ' ' '''' '* ^ " " " ' — ' ~ ' ' 

■ * ,^-l ' Jenkins V. McConico. tidm'r, Ac. 

also shows, that the copy of the deed purporting to be made 
by Jenkins and his wife was read in evidence by the plaintiff. 
<rhis was done for the purpose of rebutting the inference that 
the first delivery of the slaves was a gift, or advancement, as 
the fact that Mrs. Jenkins was named as a party to a deed 

^fcpnveying the same property, which Jenkins acknowledged 

i^^e executed, was a stf ong circumstance to show that he did 
npt consider the first deliverj' as a gift to him, but that he did* 

. • Consider the title to be in his wife. The charge of the court, 
tl^at the deed opposed no obstacle to the plaintift''s recovery, 
was merely in jeferenpe to tlie fact that it had been executed 
by Jenkins alone, and to prevent the jury from being misled 
by it. The idea that the deed was executed by Mrs. Jenkins 
al^o,'aHd barred the plaintiff's, recovery, is thus shown to be 

* altogether an after- thought. ' . . 

But if it is not entirely clear, that there was no evidence of 
the execution or delivery of the deed by Mrs. jjenkins, nor 
any admission of such execution, it is certain that the bill of 
exceptions admits of two constructions — one, that the execu- , 
tion of the deed by all the parties was. admitted ; and the other,' 
thai its execution by Jenkins. only was admitted. Now. the* 
rule is, that if a bill of exceptions admits of two constructions, 
that will bd adopted which will affirm the judgment. — Dozier ' 
" tl, Joyce, 8 Port. 303; Patton v. Hayter, 15 Ala. 18; Donnell, 
V. Jones, .17 ib. 689; Perminter v. Kelly, 18 ih. 716; Andres^ 
V, ■ Broughton, 21 ib. 200. Consequently, the effect of the 
deed, if it was in fact executed by Mrs. Jenkins, does not 
aHse upon the record ; but if it does, the charge of the court, 
that the deed opposed no obstacle to the plaintiff's recovery, 
was right, on the following grounds : • 

1. At common law, every deed of & feme covert is void : n(Jr 
can 2b feme covert make any contract which will affect her sep- 
arate estate, at common law. ' The separate existence, of sep- 
arate estate of a married woman is unknown to the common 
law : a separate estate is the creature of a court of equity ; 
and it is only in a court of equity that a married woman, hav- 
ing a separate estate, is regarded as a feme sole, and as such, 
allowed to dispose of it. — Clancy on H. & W. 321; 1 White's 
Lead. Cases,- 360 top p. (65 Law Lib.) ; Bell on Prop, of H. 
& W. 613 mar. (67 Law Lib.) ; Roper on H. & W. 235-240 






* , -. JANTTARY TERM, 1855. *281 

, • * Jenkins v. McConico, adm'r. &c. 

► - • '^ '^ : :. 

mar^;(32 Law' Lib.) ; 2 Story's Eq. § 1397; Bing. on Itif. & 
y. 237, and note 5; Marshall v. Rutton, 8 Term Rep. 547; 
cavanauffh v. "Brown, 1 'Pexas Rep. 481; Calhoun v. Calhoun,* 
5 Strob.'Eq. 236; Askew v. Daniel, 5- Ired. Eq. 321; George 
v.^ Goldsby, 23 Ala. 326. No case can be found, where the 
deed of a, feme covert, conveying her separate estate, was hel|^ 
valid, at law, except where the conveyance was under an ex- 
'pl;ess power to convey, in the instrument creating the estate, 
or was executed in conformity to a statute. The cq^e of 
^ooper's Executor v. Smith, 23 Ala. 639, does not decide that 

• th^eed of a married woman, conveying her separate estate, 
. 3 is 'good at law : nor can that case be sustainisd, either upon 
• principle or authority ; it stands "alone, and in opposition to 

principle and all authority. The very extract from Clancy, 
on which it is based, shows, that it is in equity that a married 

* woman, having a separate estate, is regarded as a feme sole, 
t and as such allowed to dispose of it. The attention of the 
.•♦'cJOTirt w^ not directed to the distinction between the effect of 

^* sjich conveyances at law and in equity. If it had been, the 
► ^ decision must have been different. It is therefore submitted, 
•that that case canno't be properly adhered to; and that if it can, 
it does not decide upon flie effect of a deed. Not one of the 
• other authorities relied on by the appellant's counsel decides 
t^^ that a conveyance by a married woman of her separate eStd^te 
is good at law. They all assert the. general principle, which 
is' not disputed, that in equity a married woman is regarded 
SiS & feme soky in respect to her separate estate, and as such 
allowed to dispose of it. To this extent the Virginia cases 
^ relied upon go, and no further; They are all equity cases, 
(except "West v. West,) and merely assert the general doctrine 
, of the courts of equity. The case of West v. West, 3 Ratfd. 
373, decides, in conformity with the general rule, that a mar- 
ried woman may dispose of her separate personal property, 
by will. But the reason why she may dispose of her separate 
personal property by will, so as to pass a title to the executor 
or administrator, at law, while she cannot pass a title at law 
• by deed, is, that the will does not take effect until after the 
- coverture ceases, ana the deed, if it take effect at all, must 
do so during the coverture. It seems clear from what has 
been said, that the deed of Jenkins and his wife, if executed 






^:** ALABAMA.' 



# 



^ -• • Jenkins v. McConico, admr, &c. 

■ ♦ 5 : 1 ! ■ ■.'-,- t 

. 9 , _ ^ •: :;^ -r^«*^* 

;. ,, by her, could not be set up in a court of law, to^^efeat^a re-, '* 
-•,,' • ,^ covery by her administrator. -'■'/•A ' ^^ 

' ' .; . •* 2. If Mrs. Jenkins could convey a title toliBr separate es- 
►'.'••. tate, which could be asserted in a court of law against heif^* 
%i ••. administrator, her "deed is void for the want of a privy exain^ 
.[■'*. ' ^^ation pursuant to the Virginia statute. — 1 Rev. Code of 
.i^"' *^irginia, of 1819, p. 3G5, §15 ; 1 Call 190; 1 Munf. 518; 12 
b-'. Leigh 445; 9 z6. 200; Code of 1849,' p. 513; Sess. Acts 1843-4, ' 
'.. " '• p, 53"^ It is contended, however, by the counsel for the a|)pelijt \ ^ 
\''./^ lant, that the statute does not apply to' personal property- f* • 
. • • •and Mr. Baldwin, in his written argument, says it w^ild^ 
', • '' •; amuse a Virginia lawyer, to tell him that it did.^ This Mro^ -\ 
* . ■ ganfassertion is denied and refuted in the opinion of distin-' < 
iite ■ • guished Virginia counsel, wliich Mr. Baldwin himself has filed 
,' ^ , '^ en behalf of the appellant. It is also contended by the ajf? 
; : pell ant's counsel, that if the statute applies, to personal prdi-* 
* ;-- ;, P^rty, it does not apply to separate estates. In this' respeje^ 
4' . Tilso, 'fehe Virginia counsel differs with the appellant WtmUfe*^^ 
••' .' .is sustained by the casfe in 9 Leigh 200. But while thevir- ' / 
,;• /".glnia counsel admits, in fiis writteri opinion, that the statute 
-t-p^Ues to separate personal property, heatgues, that ifmerely, 
nufhorizes a privy examination in Respect to conveyances of ' 
^€uch property, while it requires it in a conveyance of separate • 
Veal estate ; an(i the reason he gives for t^e distinction tSj-t 
that without the aid of the statute, a married woman could 
'bbnvey her separate personal property by her sole'act, but not # 
her real estate. Now this is not true in respect to the real 
' lestate ; for she has precisely the same power to dispose of-her 
^ -separate real estate that she has to dispose of her separate 
.; '.personal property. — 2 Story's Eq. §§ 1389-90, an^ cases cited 
> 191 note 3. As, therefore, the reason for the distinction does 
'. laot exist, thd argument falls to the ground ; and consequently, 
%• .if the statute requires the privy examination in a conveyance* 
• «if real estate, it requires it in a conveyance of personal. 
• ' The case in 9 Leigh 200, is decisive to show, that a |)rivy ex- 
^ amination is requisite to a conveyance of separate real estate; 
' *^ -ibut the effect of the statute in a conveyance of separate peij" . 
, "Bonal property is not passed upon. "^When, therefore, tM. 
•. ; f^Jourt say a married woman may convey her separate personal 
■X Restate by her sole act, the coui't must be understood as refet^ 



• i 



Jk: 



ff 






JANUARY TERM, ilk. i^- 

' ^ 4 . : ^s , — ^ * M* . 

. • . g Jenkins v. McConico, adm'r, &c. - ^ 

' ^^'•ring to licr power when unrestricted b^ the, conveyance * ' 
^iiCXeating the estate, and as having no referqnce to the restrainj^ " ' \ 

f ing effect of the statute. iNo question as to the effect of a *. 

•conveyance of separate personal estate, without a privy exam- ;• ' **' 
ination, was before the court, and of course none was decided. 



The statute, then, is not enabling ; for, according to the au- 
thorities cited, a married woman has precisely the same power 



U 



*' 






^ jj|o dispose of her separate real property .that she has to dis- ' 
i ' ' ^Pfli* ^ ^1^^' separate personal. If; therefore, she, might have* 
■ ■ ^onveyed either, without the aid of the statute, the statute 
:^ was unnecessary as an enabling statute, atid consequently can 
', pnlyj^e regarded as disabling, or as enabling to convey a title 
^» that would be good at law, which before could only be asserted 
in eqf§ty,. , The latter construction seems to be the true one, 
fio far as separate estates are concerned. As to the rule for 
construing a statute under such circumstances, see Smith's* 
" .Com. on Stat'., § 581 ; 4 Day's Rep. 60. ' There can, be no 
, -serifeus question tliat the. statute applies equally to personal 
' ' ^jpind real property. The term3 ''.any estate or interest" are 
.^* as^general and comprehensive as they can be to include both. 
,2 Bouv. Inst., p. 21^ § 1689.'* The proviso ip the statute is 
^ a mere limitation of the wife's liability upon* any covenantor 
Mvarranty in a deed by which she conveys real estate. The 
^ode of 1849, p. 513, in terms, includes personal estate. Thp ♦ 
I authorities for the section of .the Code of 1849, referred 'to,*^ 
^ show that no change had been made in the section of the Code 
of 1819. — See the Sess. Acts of 1843-4," p. 53.- As no change 
, ' had been made, and as the. Code of 1849 refers'in the margin 
, ■ to the Code of 1819, as authority for its provisions, the Code ■ _ • ' ,^ 
of 1849 must be' regarded as a legislative construction of tk^ 
Code of 1819, referred to in the margin. If these views bfe 
correct, they are decisive of the invalidity of the deed of Jen- 
kins an^ wife, so far as she is concerned ; and consequently 
the charge of the court to that effect was fight. -^ 

*' , 3. If the deed is A-oid, as a deed, or for the want of a priTy. 
examination, it cannot operate as a .paroL declaration of a 
. ^ trust, or a gift, or an appointment ; for by the laws of Vir- 
, ginia, all such gifts a*e void. — 1 Rev. Code of 1819, p. 432, 
. ] ;§ 51; 6 Rand. 135; 3 Grat. 1; 9 Leigh 245;, 10 i6. 5. For if 
a married woman is to be regarded as a feme sole, in respect 



V 

>?: 



«f 




I #^ ALABAMA. '- 

\ Jenkins v. McConico, adm'r, &c. 



ft 



jricc 



j-^i 



to hev separate estate, at law, as well as in equity, her^qystejr- * • 7 
' ""ances must conform to the statute in all re^]i<xi.s as i^he*» 
V. were in fact a single woman. Buttliis question does not arta> » • 
• upon the record. The charge was, that.^A^ iie^ prc^n^ no*,, 
■ .. obstacle. &c. -• ;^>?'yV=- •.:•*''' ■"^*^- 

• ..y| ^. There is not only no evidence in theTecord that Mrs. • 

'^ ■ . Jenkins executed the deed, but there- is none that .she ever . 
•' * delivered it, or recognized it. The mere fact that'it was ac- 0' 
knowledged by her husband is no evidence that it had be'en 4 
' • delivered by her, either to him or to tlie trustees, especially 

• when he swears that he does not kiiow whether she" exmited 

», it 01* aot. A delivery will not be presuijjed agains<i> ti *vif% *^ 
p-; ' who is presumed to be under the coercion of her hilfeband-j * ^^" 
"^. when the deed purports to give him an interest in he^'pro* 
^ * jperty .--Gamble v/Gamble, 11 Ala. 966; 2 Dev. & Batt. Eq." 
^ 65: 1 Stefw. & For. 56. ' . . . . ;* 

5. -There is lio evidence in th^- record, that t]i^'lru^0^8» 
I ,' 'either executed the deed, of accepted it, or ass^e^t^ir^' 
. . tintil they did one of the other, the deed was wjiolly inope- 
r^itiye at law. It was-not beneficial to them : on the contrary, 
• . ^;|Hmposed duties and liabilities upon them, without giviii||| 
*' ; *i1fem any ben6ficiat interest, -or cofiipensation. Their assen't, >• 
'■■^ under such circumstances, cannot be presumed.— Hulickv^ 

* Scovil, 4 Gilman's R. 159; Renfro v. Harrison, lOMissd. 411*, 

. ■> ^ * Kennedy v. Waller, 4 Hen. k Munf: 415'. ' , ^ ;• ,^/ ^V f 

■'i. ■- * . So then, whether the deed was void as to'MTS/ Jenltin8,'at • 



« 



•p'inmon law, or for the want of her privy examination, or for 
the want of delivery by her, or foi-' the want of execution",* ac- 
ceptance, and assent of tlip tiuste^s, itoppos^'d^ obstacle^ j 

* the plaintijff's recovery, . * ' ■"^•'•* ■' . *'• 
1^ Y^. At tlie time Jenjiins sold theiwo slaves, tlie legal title « 

ahd the right of possessioft were in his wife, so that the sale 
amounted to a conversion.— Hooper's Ex'r v. Smith,* 23 Ala. 

• t){J9; 13 Bin. ^feidar; 652. ' The rigjit of -action was suspended 
'during the coverture. Upon 'the death of Mrs. Jenkins," the 

legal aijd exjuitable title united' in her administrator, so that 
'^"(^euld have sued the pyi^hasei?s of^tli^ property and him • 
who converted it by selling it. It seems clear, that if the 
title vested in the administrator, &o that he could have sued 
the purchaser, it vested ifi hitn so- as to enable him to 3ue the 



JAjtUARY TERM, 1855. 2^, 

Jenkins v. McConico, adm'r, &c. 

... ' eeller. The title, in either case, relates back to the time of 

r -,the sale.— 20 Ala, 338: 21 ih. 458: 22 i&. 199: 13 S.&M.652. 

The plaintiff was, therefore, just as much entitled to recover 

• the value of the two negroes sold by Jenkins^ in Virginia, as 
he was to recover the value of those remaining in his pos- 
session. 

The case cited by the appellant's counsel, from 7 Leigh 66, 
|. . »has no resemblance to this. In that case, the husband had no 
remedy against the wife, either at law or in equity ; conse- 
quently, his administrator had none. In the case cited by 
the appellant's counsel, from 3 Leigh 255, the legal title was 
• in tlH husband, by his purchase, and consequently his executor 
*\ • was entitled to recover the property from the cestui que trust. mj^ 

That case, therefore, is not like the present. But if it were, * JS^ 
it only shows, there is a differetice between the law of Vir- ^ 

ginia and the law of Alabama, in relation to the remedy in ^^ 
such a case. That case shows that the remedy is in equity. ™ ' 

* Th0 cases decided by this court show, that where a convey* 
\^ ance is made to a married woman, without the intervention 

^. * of a trustee, upon the dissolution of the coverture the legal 
<ind equitable title unite, so that the wife or her administrator 
^ can sue or defend a suit for the property at law. — Knight v. 
*Bell, 22 Ala. 198 ; Powell v. Glenn, 21 ib. 458 ; Randall v. ^ 
^hrade», 20 ib. 338; Puryear v. Puryear, 12 ib. I'd; same par* 
ties, Uib. 491-2;' Cook v. Kennerly, 12 ib. 42; Gunn v. Bar- 
L row, 17 ib. 747. Conceding, then, that the case in 3 Leigh 
•255, shbws that the remedy of Mrs. Jenkins' administrator 
would have been in equity, it does not affect the plaintiff's 
right to recover here, where the remedy is different. The 
^ remedy is governed by the law of the forum. — ^2*Ala. 397-. * » 
The record does not show that any question was made i1^ 
the court below, as to the right of the plaintiff to recover 
the value of these two slaves, if he were entitled to recover, ♦. 
at all. The charge only relates to the measure of damages, 
*, in respect to them. It is too late, therefore, for the defendaflt 
belo'v*' to- object that he was not liable to account for theih 
, at law. , . • 

But it is objected, tttat the charge is wrong in respect to 
the measure of damages for the conversion of these two slaves. 
The charge of the court on this point was strictly correct, and 



?f 



ALABAMA. ^^? 



Jenkins v. McConico, adm'r, &c. 



in exact conformity with Lee v. Matthews, 10 Ala. 682. It 
is contended, however, that Jenkins was not accountable for 
the profits of these two slaves, during the coverture, and that, 
therefore, interest should only have been given from the time 

• Mrs. Jenkins died. It is a sufficient answer to this position, 
to say, that it does not appear from the record that Mrs. Jen- 
kins lived with and was maintained by her husband ; and 
it is only in 'that event that he would not be accountable for 
hire and profits. Besides, the sale of the slaves was a wrong: 
ful act ; if it be true, therefore, that if he had not sold the 
slaves he would nbt hav6 been acconntable for the profits, 

. having wrongfully sold them, he cannot bo heard to say^hat 
he shall be in as good a situation, notwithstanding, as if he 
'had not violated his trust. This answer to the objection 
seems to be conclusive. 

But it is contended, that there was no evidence of the price 
■fol3t which one of these slaves was sold, and therefore there 
could be no recovery as to that. This is a mistake. The bill 
of exceptions states, that there was " evidence tending to 
Show the conversion and value of the slaves sued for." This 
is a sufficient answer to that objection ; but if it were not, 

- the charge itself was right^ and if the verdict was wrong, it 
cannot be reached by writ of error ; a motion for a new trial 
was the proper remedy. '.,'\i: t\,.' . -» *.* f.; ';: .^"^ •'". 4'- 

It is contendtid, also, b)^*the appellant's cotttra'el, that the 
charge was wrong in respect to the measure of damages for 
the conversion of the othbi* slaves. The charge is, that " the 
measure of damages wdut'd be the highest value proved, from 
the time of the demand to the time of the trial, or the value 
a* .the time' of . the conversion, with interest on that valueu^ 
^ This is the genefal. rule. — Bwing v. Blount, 20 Ala. 694; Lee 

• '■ V;. Matthews, 10 i6. 682; Tatum v. Manning, 9 ib, 144; Sedgw. 
,^'oa' IJam. 502-3vWhich see particularly. If there be any error 

in the cliarge on this point, it is in favor of the appellant. 
'Besides, it was waived and cured by the agreement to be found 

- in' the judgment- entry, that the judgment, as to all the slaves 
•except the .two sold, inrgUt be. discharged by surrendering the 

f laves. • , „ 

>^IV. The claim now setup by Jenkins, that he is entitled 
,to the slaves jm controversy, jure maritl, is another after- 



JANUARY TERM, 1855. 231 ^^ 



Jenkins v. McConico, adm'r, &c. *l^ ' ■ , 



thought. There is nothing in the record upon which that ^.• 
question can be raised. But if there were anything, it is suf- V, 
ficient to say, that Mrs. Jenkins' administrator is entitled to 
recover the slaves for the purpose of paying her debts. It 
will be time enough for him to. set upth^t claim, when the 
estate cpmes to be distributed. 

Upon the whole, it is submitted for the appellee, rfiat there 
is 00 error in the charge of the court, and that the jadgment • ' 
stojuld be affirmed. #•*'•* 

CHILTON, C. J.— We shall first ascertain thqjegal 'effect 
of the deed from John Williams to his daughter Janette J'^.- '' 
kins. Did it vest in her a separate property in the slSr* * 
therein mentioned ? We are satisfied, upon a careful analy- 
sis of the whole instrument, that such was ffte inte^pn' of the . ■' 
grantor, and that according to the construction of^^h instru- ^ - 
Hients by the courts of Virginia where the deed' was mad^ ^P- 
such was its legal efi'ect there at the time of its execrftion. 
It is manifest from the face of it that it was drawn byan 
illiterate and inexperienced draftsman, and' such instruments J; , 
should not b^ subjected to those rigid rules of legal criticism, W 
which might properly enough be applied in the construing of 
more formal and technical instruments. The great point to ;,. " 
be attained in the construction of all written instruments, is 
to arrive at the true meaning and intentionof the parties to ' I 
them, and, if that intention be lawful, to give effect to it.— ^20 
Ala. 710 ; 22 ib. 433; • • ^: 

• In this deed, the father gives to his daughter, then a mai^ • 
ried woman, and the lawful heirs of her body, the slaves in -^ 
controversy, forever, to the proper use and behoof of said 
daughter and her heirs as aforesaid, j^nd binds himself, his 
heirs, <fec.", " to' make the above named property a clear and 
. undoubted a right, as much so as can be made by word or 
deed, from the claim and claims from every person or persons 
whatever, to my daughter and her lawful heirs as above men* 
tioned." 

' It is true, that the law favors the marital rights of the hul* 
band ; and in order to exclude him, there must be a clearly 
expressed intention. The language used should be such as to 
forbid speciilation as to what the probable object of the donor 



238 . ALABAMA* 



Jenkins v. McCoaico, adm'r, Sec. 



might have been. — Pollard v. Merrill & Eximer, 15 Ala. 174. 

• In the language of Judge Story, " the purpose must clearly 
appear beyond any reasonable doubt, otherwise the husband 
will retain his ordinary legal marital rights over it." — 2 Sto- 
ry's Eq. § 1381. At the same time, however, it is well set- 
tled, that no particular language or form is necessary to 
create a separate estate in a married woman : it is sufficient 

* g if, from the whole instrument by which it is limited, the 

\ '* intention clearly and unequivocally appear. — Cuthbert v. 

Wolfe, 19 Ala. 373 ; 17 ib. 232. In the case before us, the 

donor gives the property to his daughter, and to the heirs of 

-• her body, to the proper use and behoof of said daughter, and 

• r^inds himself to make her title as clear and undoubted as 
%( could be done by word or deed— a right free from the claim 

'• ■ of every person whatever, and, of consequence, from the hus- 
band's claim. It would be difficult to find language more 

^jtjb .comprehensive than the donor here uses. True, it is inserted 
somewhat informally, as a species of warranty in a deed of 
gift, which, being voluntary, is perh?ips nugatory ; but it 
serves to explain the oth^r portions of the instrument, and to 

^- show that the intention was to exclude every one from claim- 
ing and enjoying any right to the property except his daugh- 
ter, to whose proper or particular individual use he gives it. 
See Griffith's Adm'r v. Gdffith, 5 B. Mon. Rep. 113. It 
would seem absurd to say that he bound, himself to vest the 
right ia his daughter, to h^ proper use, free from the claims 
of all and every person, and consequently from the husband's 
claim, and at the same time. gave the property to the husband. 
•It is evident that the donor points to the husband, and the 

.. • manner in which he is conveying the title, and not to any 
supposed defect in the title growing out of his want of ability 
to confer a good one. He is to make her such title as will 
secure the property to h&c proper use, exclusive or free from 
the claims of every other person — the right is to be, in this 
respect, " as clear and undoubted as could be made by word 
or deed." It would, we think, among the illiterate, be very 
difficult to find language more expressive of an intention to 
give the property to the daughter, and to exclude the husband 
^ well as every one else. ^ 

As to the effect of the deed from Richard Jenkins and wife 



JANUARY TERM, 1855. 



Jenkins v. McGonico, adm'r, &c. 



(Janette) to J. P. Camden and Samuel T. Williamson, we have 
had some difficulty, and iind some conflict of authority. 

Before, however, proceeding to discuss this point, it is, , 
proper to observe, that the objection insisted on by the coun- 
sel for the appellee, that it was not proved to have been exe- 
cuted by Mrs. Jenkins, cannot be sustained. The appellee 
introduced the copy of the deed, and read it, to the jury him- 
self, not as the deed of the husband only, but as the deed of 
the parties whose names appear attached to it. The bill of 
exceptions states, in enumerating the items of proof made by 
the parties respectively, that the second item of proof offered 
by the plaintiff below was, " The copies attached as exhibits 

' to the interrogatories, which were admitted in evidence, ii^'. 
lieu of the originals, by consent of the defendant's counsel. 
The defendant also admitted, that the originals of said copies 
had -been executed, proven, acknowledged, and recorded, as 
endorsed and certified on said copies.'"' Having introduced 
and read them to the jury, generally, without any attempt to 
limit their effect as proof, the appellee cannot now be heard 
to say they were not proved. He conceded their genuineness 
by reading them ; nor is the concession at all restricted by 
the admission on the part of the counsel for the defendant in 
the court below, " that the originals of said copies had been 
executed, proven, acknowledged, and recorded, as endorsed 
and certified on said copies." This has reference to the regis-' 
tration of the instruments. It was an admission obtained for 
the benefit of the plaintiff below, designed to enlarge the 
effect of his proof, and not to limit the operation of the deeds, 
or to question their genuineness. 

Let us proceed to consider its legal operation, as respects 
the rights of the parties before the cpurt. 

The action is trover, by the administrator of the wife, 

against the husband, to recover for the conversion of slaves 

in whom, as we have shown, the wife had a separate estate, 

. secured by the deed of gift from her father. This deed pur- 

■ ports to convey these slaves to Camden and Williamson, in 
consideration of the love and affection which Richard, the 
husband, and Janette, the wife, bore towards their daughter, 
Ann Richard Jenkins, and for any child or children thereafter 

► .^,be born, to have aod to hold to t^^ ^aid jQajnden and ^i\- 



im- 



i^ • ■ *''>.^.t' ALABAMA. ' 

■1^ — i . _ :— -: ' «■ -T »' 

Jenkins v. McConico, adm'r, &c. 

liamson forevier, &o., "in trust, nevertheless, that they shall 
permit the said Richard Jenkins and Janette, his wife, during 
their natural lives, or the natural life of the survivor of them, 
to remain in quiet and peaceable possession of said slaves and 
their future increase, &c., and to take the profits thereof to 
their own use during their lives." 

If we concede the right and the capacity of the parties to 
convey, the effect of the deed would be, to vest the legal title 
in the trustees named in it, and the beneficial interest in the 
husband and wife during the coverture ; and if the wife sur* 
vived the husband, she would be vested with the complete 
title, as the trust, in that event, would be fully executed, no- 
thing remaining for the trustees to do ; but upon the death 
of* the wife, the husband surviving, the title remains in the 
trustees, in ti;ust for him during life, and after his death for 
tthe personal representatives of the wife. 
^' The question then arises. Is the deed valid ? Can husband 
and wife join and make a valid deed, transferring her sepa- 
Tate property in chattels to a third party, which can be get 
up by the husband, after the^death of the wife, in a <^ourt of 
law? In other words, can the wife create an interest, by 
deed, pending the coverture, in favor of her husband, in her 
separate personal estate, which can be regarded by a court of 
law? 

I have been not a little perplexed in looking into the aa- 
thorities to find the question left by them in so much uncer- 
tainty and doubt. 

Whatever may be the doctrine as held by sdhie of the States 
in the Union, it is now well settled in England, and is so held 
by the Supreme Court in this and some of the other States, 
that a feme covert, with respect to her separate estate, is to 
be regarded as a feme sole. The doctrine asserted by Lord 
Chancellor Thurlow in Fettiplace v. Gorges, (1 Ves. Jr. 46 ; 
S. G. 3 Bro. Ch. Rep. 8,) that where personal property is 
-given to a married woman to her sole and separate use, it is 
Subject to all the incidents of property .vested in persons sui 
juris, among which is the jus dispoiiendi, is generally received, 
and we think correctly, as a just and proper exposition of the 
law upon this subject. — 2 Bright on Hus. & Wife 220 ; Jaques 
■ V.^Methodist Episcopal Church, 17 John. 548 ; 20 Wend. 570; 



JANUARY TERM, 1855. '< 241 

Jenkins v. McCouico, adm'r, &c. 

Roper on H. & W. vol. 2, p. 182 ; Vizonneau v. Pegram, 2 
Leigh 183 ; Lee v. Bank U. States, 9 Leigh 200. 

In order to pass the title to the wife's real estate, by the 
common law, it was necessary that she and her husband should 
join in levying a fine ; and in England, since the act abolish- 
ing fines and recoveries, (3d and 4th William IV. ch. 74,) mar- 
ried women are enabled, with the concurrence of their hus- 
bands, and in certain cases without such concurrence, to 
dispose by deed, or relinquish any estate they may have, as 
^fi'ectually as they could do if sok; provided, such deed be ac- 
knowledged by her on privy exainination before some officer 
pointed out in the act ; and similar acts, providing for val- 
idating the deeds oi femes covert upon acknowledgments taken 
after previous examination apart from the husband, have 
been passed in most (if not all) of the States. These are 
enabling statutes, conferring upon the wife a power which slie 
did not before possess, and were not designed to take aw^y , 
any power which she previously possessed of making a valM 
disposition of her separate personal estate. Such we regard 
the\statutes of -Virginia, requiring a privy examination of the 
wife as a pre-requisite to her making a valid conveyance of 
her realty .—See Rev. Code of 1819, p. 365, § 15. Gifts, by^eed, 
or otherwise, -by. a married woman of her separate personal 
estate, reftiain unaffected by ttie statute, as respects the rights 
of the parties to thpm, and as between the parties themselves. 

"We refer' to'this mode, pointed out by the statutes, by which 
married women, in conjunction with their husbands, can pass 
the legal title to their real estate, and which is but -the sub- 
stitute for the common-law mode of fine and recovery, merely 
, to show the anomaly which would exist, if there was no 
method of passing the absolute interest in the wife's personal 
chattels. As such property so often changes hands ; — so often 
consists of articles of merchandize, and commodities which 
must needs be S9ld or exchanged, or become of little -or no 
value, — it would be very remarkable if they could not be diff^. 
posed of, so as to vest the right in the purchaser ; and not 
less anomalous to hold that each purchaser or person who ac- 
quires the right from the wife must be driven into a court of 
equity, or be liabto- at law for a conversion of the property 
and damages. ;-vj,»r*%^-^.'ii«ilrj!«»^y** r •yir^..^"-''^r 



# ■ 



Z4% , * ALABAMA. 



Jenkins v. McConico, adm'r, &c. 



The distinctioji which exists between dispositions o£ Teal 
and personal estate by married women, as respects the neces- 
sity of a private examination apart from their husbands, is 

.' very correctly alluded to in Lee v. The Bank of the United 
States, 9 Leigh 200 ; and in the views taken by the learned 
judges in that case., we fully concur. It it very clear, that 
no such: examination is required to render the t-ransfer of her 
separate personal estate available. 

We fully concur with the learned counsel for the appellee, 
that a married wom^n can, enter into no contract upon which 
, she can be charged in a court of law ; and this irrespective of 
whether she has a separate estate or not. The great case of 
Marshall v. Button, 8 Term R. 547, has settled the law in 
England, and this case has been followed generally in this 
country. That was an action of assumpsit against a married, 
woman for goods sold and delivered. The other cases re- 

I ferred to by the counsel show like efforts to make the wife 
liable, at law, upon her contracts. This, we concede, cannot 
be done. But it by no means follows, because she pannot 

• create a debt, OT incuc an obligation, which can -be mjide the 
ground of action at common law against her, or charged by 
legal process against her separate estate, that she may not 
transfer a legal right to anothery or such a right to the e'njoyT 

. , ment of her- personal property, which she owns separate and 
distinct from her husband, as a CQurt of law will regard and 
uphold. It is conceded by all that shjp.may dispose of such 
property by will ; why not in any other manner by which 
such property is ordinarily transferred? True, if she make 
the disposition by deed, she is hot, at law, liable upon the 

' covenants contained in it — no action can be maintained at law 
against her upon it ; but it is.:efiectual to pass all the interest 
slie has, and she has the unlimited right of disposition, as 

' though she were sole. - ', 

In relation to this point, Mr. Roper, in his work on Hus- 

, band and Wife, page 229, holds the following language : — " It 
having been once established, that a married woman might 

' lose tliat character, and act at law, by circuity through the 
iptervention of trustees, as a single woman, in regard to real 
or personal estate settled to her separate use and disposition, 
a court of equity, disengaged from legal forms, went further, 



JANUARY T EBM, 1855. € '■■f'^ 

Jenkins v. McConico, adm'r, &c. 

and held that it would supply the omission of trustees, ancj' 
raise a trust upon the apparent intention ; so that, whether 
there be trustees or'no trustees appointed, a married woman 
is now competent, at law or in equity, (although contrary to 
the rules and principles of the general common law,) to take ■ 
and dispose of property limited to her separate use as dLfeine 
sole." And on page 240 the same author says, "Where pro- 
pj8r1y'is limited to the separate -use of a married woraati 
generally^ without giving to her any particular power of dis- 
position, she may sell, pledge, or encumber it, in the same man- 
ner as if she were a feme sole." ^. 

, In the case of Dewey v. Bayntun, 6 East 257, it seems ta 
have been conceded by the court, that the husband and wife ' 
might contract pending the coverture through the, medium of 
trustees, she purchasing with "proceeds of her separate prO* 
perty certain furniture, pictures, and statuary belonging tQ' • 
him. ThQ (^^u^stion, on which tRe rule for a new'trial w-as* 
made absoliite, was, whether there was not such inadequacy 
in the price to be paid as stamped the transaction -as fmu^u- 
lent and a device to defeat the claims of the . creditors// M 
however, the parties could not liave contracted, in the view 
of a.court of law, in reference to the wife's separate property^, 
the court should have made the c&se turn upon that point, .and 
have" readily disposed of it by that objection, which met it at 
the threshold. . Iji commenting upon this cape. Lord JEldon. •. 
said, " From- the only aocotmt I haVe had ©fit, it appears td . 
have be(jn asserted, that a husband and wife could not, aftet - 
marriage, contract, -for a bona fide and valuable consideration, 
for a transfer of property from him to her of trustees for 'her. 
The doctrine is not so, either here or at lavjJ^ — Lady Arundell v^ ' 
^hipps, 10 Ves. 148 ; Bright on H. & W. 109. 
: • In Wright V. Button, 2 Yes. .R. &73, l^e Master'- of the 
Rolls takes the distinction between an'assignment in trust by 
indenture, executed by husband and wife, for tht; benefit of 
Ihe husband, of personal- property bequeathed to the wife in 
the hands of the executor, s^nd such an assignment of her sep*; 
arate estate, thus — " The clear distinction is, that in point of U 
law and the consideratron -of this court, a Hlarried woman has 
no disposing power, although she has a disposing mind* As 
to any property she has. the law and this court consider her 



, ■ - ■• • 

244 » '■ ALABAMA. 

Jenkins vs. McConico, aclm'r, &c. 

SO jnu(Jh under the coercion of her husband, that she cannot ' 
exercise any disposing power ; with this exception, that though 
at law she is totally devoid of any property, any person may 
makeJier a fe'me. sole as to particular property he gives her; but^ , ' 
as to any oth^r property- which the donor has not given to 
her sole and s^arate use, she is a person having no disposing 
power ; and the husband cannot, in any way, act with regard 
to any property in a trustee for her, or dispose of it, withoiit r 
the intervention of this court, as he may upon choses in ac- 
tion", &c. 

Suppose, in the case before us, the slaves had actually been • 
delivered to" the trustees named in this deed, and a stranger ■ 
had taken them out of their possession ; could not the trustees > 
have maintained an action at law for their recovery, for the 
purposes of carrying out the trust reposed in them ? It is 
certain that they could. Yet their right would have been ■* 
derived from the married woman-; and whetherfrom the deed 
or the delivery, makes no difference : it is still her act, or dis- 
position of them, which vests the title or ri^ht to maintain 
the action, %»> ;. . : ■ ;'^' '■ *'\^ -■ -"^ *>• v ' |i|i 

Upon the ■w1ii51b, without citing further ^autho^ty, we aire 
of opinion, that Mrs. Jenkins had the right, either with or 
without her husband, to make auy disposition of these 8lav.es ; 

. ushich she could have made had she been a single woman f" 
that she had a right to give them to her husband, or to create 
by deed, as sjie nas here done, a trust or use in his favoT ; and 
that the personal representative of tho wife cannot, in a court 
of laAv, in the face of this deed, recover the alaves of the hus- 
band. That the ' husband, who was the wife's " "equitable.* - 
trustee, joined in the transfer, makes no difFerience. The agree- 
ment, so far as the wife was concerned, was executed, anc 
the pcoperty IB where a court of chancery ivould place 
the husband resorted to no coercion or undue influence to 
obtain the transfer Or deed.. This is not an attempt, there-' 
fore,ito charge tiie wife, or her representative, upon her con-" 
tract ; but the husband alleges his possession to be lawful, not 

_ tortious, being secured in the use by the solemn act of his 
yife, upon which he has a right to repose. His possession 
and refusal to surrender the slaves is consequently no conver- 
sion.^See McCroau v. Pope, 17 Ala. 617 ; McGowan v. 



and 
it, ff : 



JANUARY TERM, 1855. ^ 345 

Jenkins v. McConico, adm"r, &c. 



Youug, 2 Steiv. & Por. 160; Lowremore v. Berrj^ 19 Ala. 1-30. 
We see no reason \^hy the' wife may not dispose of her siBp- 
arate personal estate, as well by deed, as by writing not under 
seal, or by parol. The only cflfect of eiflier mode of t^piisier 
is, to test the property in the person to whom ij; is.tt^nsferred. 
' The wife is not personally chargeable, at laio, upon any such 
contract ; but, when executed, it is operative to pass her in- 
terest. It is also readily conceded, th^t where the title is 
vested in trustees for the separate use of married women, they 
can only transfer an equitable interest, and not one which, at 
law, can over-ride the title of the -trustee. — Puryear v. Pur- 
year, 14 Ala. 121. But in this case, the donor conveyed the 
property to the wife herself; and if we concede that she could 
not, by reason of her coverture, take the . title at law, yet it 
would vest in the husband, he consenting to it ; and he is a 
party to the conveyance by which his present use is secured. 
In Hooper's Ex'r v. Smith and Wife, 23 Ala. 639, we held, 
that under the act of 1848, securing to married women their 
^separate estates, a feme covei't may sell, charge, or dispose of 
'^er property without the consent or concurrence of her hus- 
band. She need not resort to a court of equity for power to 
sell her personal chattels. She has the power to sell and dis- 
pose of them precisely as if sole; and it were vain to say she 
has the power and right to sell, and yet deny her the power 
of vesting a right in the purchaser. We de<^de nothing as to 
her poVer over her real estate, as that question is not in- 
volved. 

The case cited by tlie counsel, of George v. Goldsby, 23 
Ala. 336, has no reference to the Separate estate of the wife, 
and consequently is not opposed to the views we have above 
expressed. Neither will we say, that ^here the property is 
vested in trusteeg, she can transfer a legal right to it. All 
we decide is, that where personal property is conveyed di- 
rectly to the wife, to her sole and separate use, she and her 
husband can, by theii" joint deed^ vest the legal title in trustees 
for their use and the use of the survivor for life ; and that such 
deed may be set up by the husband who survives the wife, to.|r 
defeat the action of trover brought by the personal repre- 
sentative of the wife.— See, as to the wife's power of disposi- 
tion, Mc Groan v. Pope, 17 Ala. &17. 



•'■ 1 ■' ' '.:• .-«- . : 1— . 

Jenkins v. McConico, adm'r, &c. 

• ^B«t itvf8 S^ifl^this deed was never delivered, that the trus- 
tees nevfer accepted the'trust, and that there was no delivery 
of the^slaves. To this we answer, it was admitted that the 
tieedBras executed, which, implies a delivery. It was^joaore- 
oVei'j^iiitroduced and re4d, as we have before stated, without . 
objection, and as against, him who read it,. the opposite side, 
has the right to regard.it as legal testimony, and as available 
to the full extent o%its legal effect as a valid subsisting deed, 
liaving been offered without restriction as to its effect as tes- 
tiiiabuy. The execution of the deed rendered it unnecessary to , 
Jiake any fOrniaJ delivery' of the property* The law, more- 
over, docs' not reguito the mere useless ceremony ^f having 
We pi*o|ierty deliVcre'd by the husband and wife to the true- 
f^, that it mi|ht be delivered Jaack immediately to them, 
•^I'lia-t the trustees both executed" the deed, is evidence tllq.t 
tltfey cpnsentcd tof aot ayd accepted the trust. As to the ex- 
'«cif^ion of the dee^J, s^e'P^^ar c^^ Wallace v. Beard, trustee. 

ffa^ia.i2iv',;.:^'|-'--j^ 

.,^''* As to" thtT fwo sliSyes "^old by the husband while the^ 
were the' sppatate propeisty ^of Mrs. Jenkins, and before ti^ 
deed'^by her anxi hfer husbiuid to the trustees, weiieed only 

• remark' .fhat'the wife's' right'of actios was. suspended' .during 
iht cdverture, If she had •survived her hiisband, we 'entertain 
"tio dOiftJt that -she flight h'aye sued liis personal representative 
*lbr 'the conver^pii, if she did not' qxpressly or impliedly coh- 
sertfejto suck disposition ;,,an(i since d^ath has terminated the 
coverture by her deceas€i, we s*ee no reason wliy her personal 
representative may not bring the act'ion." If 'there be equita- 

,f)le sets-off, the party» wto- insists -upon them mu^t go into 

"t4inty for their allowance. 'We tjiink the cases in our" own 

bourt furnish abundant authority for sustaining the action. 

•iSee Cook v. Kennerly, 12 Ala. 42 },J|iHryear" v. Puryear. ib. 

f5; J6 A-la, 491 f Qunn v. Barro^/lT ib. 747; Randall, 

admj^ V. Shrader, 20 ib. 338 ; Powejl v. Glenn, 21 ib. 458 ; 

Knipt V. Bell, 22 .t6. 198. .. ' , ' 

"'As to the daiiiages :* The true measure ^f damaged; -in an 

'^-action of trover, where the thing converted has a fixed value, 

is that value at the time of conversion ; apd the jury may give 

interest upon it. If the value is fluctuating, the jury may 

take its highest value at any time between the conversion and 



JANUARY TERM, 1855. ^ 247 

Miller v. Jones' Adm'r. 

the trial .-^-^trotig v. Strong, 6 Ala. 345 ;' Tatum v< Manning, 
9 ib. 149 ; Lee v. Matthews, 10 ih. 688-1^ ; Ewing v. Blount, 
20 ib. 694. » 
Let the judgment be reversed, and the cause remandec 




I 



MILLER vs. JONES' ADMINISTRATOR. * i: 

1. The action of the courts of probate in granting letters testamentary, or of 
administration, though conclusive in those cases in which they have the 
power to act, may, like the sentences of all other courts, be assailed for want 
of jurisdiction ; and whenever a suit is brought by a person upon his title 
as administrator, a plea averring facts which show that the court from which 
his letters issued had no jurisdiction to grant them, ife good. 

2. When a plaintiff declares upon his title 9& administrator by virtue pf lettei's » 
granted to him in this State, a plea averring that his intestate was not a resi-' 

ent of this State at the time of his death, and that he had no effects here at 
^at time, does not show that the letters are void for«-ant of jurfsdiction in 
the court which granted them : the court of probate has jurisdiction to grant 
letters if property belonging to the estate is brought into the county after 
the intestate's death, although he was not a resident of this State and had no 
property here at the time of his de&th. — Clay's Digest, p. 303, § 33. • 

3. When application is made for letters of adnynistration on .the estate of a 
non-resident, if the petition alleges that •' there is prope^ within the county 
belonging to the heirs of said estate, which is likely to be wasted, or so 
disposed of as to be lost to the said heirs, unless some one should be ap- 
pointed to administer upon said estate," such an allegation, it seems, is equiv- 
alent to an assertion of title in the estate ; but whether it is or not is imma- 
terial, as it is not the a/legation in the petition, but the fact that there is 
property in the county belonging to the estate, which gives the court jurifr- 
diction to grant letters of administration, and the applicant ia not held down 
to the ground stated in his petition. 

4. In detinue for a slave, if ^e damages are not proved) a nominal sum only 
should be given ; and it Ib flierefore error to instruct the jury, that, in the 
absence of 'proof as to the value of the slave's hire, they, might give interest 
on the agreed value of the slave by way of damages. ^ 

5. A plaintiff in detinue may recover upon possession alone against one who 
has not as good a right to it as himself, and the defendant, in such case, can- 
not defeat his recovery by showing an outstanding title in a stranger, without m 
connecting himself with it; but when the plaintiff's right of recovery is 
based on liie title, it may always be disproved by showing title in another. 

6. If one who has possession of a .slave disclaims property in himself, and holds' 
it for the estate of his father,1ie ia estopped from denying the right of pos- 



. fe 



248 ^ ALABAMA. 



Miller v. Jones' Adm'r. 



"^ session to ]|p in the estate ^ and his declarations, in disparagement of his own 
title, are admissible evidence against him, or one claiming- under him, to 
show the character of his possession. 
7. When the defendant in detinue claims under a purchase at sheriff's sale 
^m one who was estopped from denying the right of possession to be in 
plaintiff's intestate, he cannot sejt up an outstanding title in a tiiird person 
without connecting liimself with it. 
By the Civil Code of Louisiana (p. 521, ch. 23, ^ 2) slaves without written 
^ititle may be prescribed by a possession of fifteen years; and slavfilB with writ- 
ten title (Ai't. 3444), by a possession of five years. 
♦ 

V* Appeal from the City Court of Moi)ilc. 
* Tried befor^the Hon. Alex. McKinstry, 

Detinue by Franklin G*. Kimball, as administrator of Isaac 

Jones, deqeased, against Thomas P. Miller, for a slave named 

Jane. The plaintiff 's letters of administration, which were 

. set out on oyer, were granted by the Probate Court of Mobile - 

' on the 28th day of December, 1852 ; and this action was com- 

:TDeuced on the 30tb of December in the same year. The de- 

^ejidan-t "pleaded — , . 

^^: "'T% : That the plaintiff is not, , nor ever hath been,'.adQ[^pl-' 

trator of the rights and credits, goods and chattels, which 

were of the said Isaac Jones, deiC5ea3e4J», manner and form as 

•* he hath alleged,"- &c. V ''.>.V*' .■•;■' • 

*» 2. That the said Isaac Jones, deceased, had not, at the 

"time of his d^th, a mansion-house, or any known place of 

residence, in the county of Mobile, or elsewhefe in the State 

■ cC Alabama '; and that he did not die in the said county, or 

. elsewhere in the State of Alabama, and had not any estate, 

-^ or property, in the said county of Mobile, or elsewhere in the 

State of Alabama ; and that the said Probate Court of Mobile 

county had no authority, or jurisdiction, to grant to said 

: plaintiff administration of the goods and chattels, rights and 

credits of the said- Isaac Jones, dec^sed ; and so defendant 

• saith, that said plaintiff is not, nor ever hath beeiij adminis- 

tralfer," &c. • 

"3. That the said Isaac Jones, decea^d, during his life- 

i time, resided in the State of Louisiana, and died in said State, 

more than eighteen years before the commencement of this. 

. suit, to-wit, on the — day of -^ A. D. 1833, at West-Feli- 

- ciana, to-wit, in the county aforesaid ; and that the said Isaac 



JANUARY TERM, 1855. ^ 249 

Miller v. Jones' Adm'r. 



Jones, at the time of his death, had not any mansion%ouse, t)r 
any known place of residence, in the said county of Mobile, 
or elsewhere in the State of Alabaina, and did not die in the 
said county of Mobile, nor elsewhere in said State of Ala- 
bama, and did not have any estate or property in said county 
of Mobile, or elsewhere in the State of Alabama ; and af- 
tei'wards, (and more than eighteen years after the death 
of said Isaac Jones.) to-wit, on the 28th day of December, 
A. D. 1852, in said county, one Julia P. Canfield pre- 
sented ^nd filed in the Probate Court of Mobile county her 
petition, wherein she stated to the effect following — that is to 
say, that she, the said" Julia P. Canfield, who was about to 
leave the State, and Elizabeth Ann, the wife of Newton Von- 
fleet, who resided in the State of Mississippi, and Robert 0. 
Jones and James P. Jones, of the parish of Wes*t-Feliciana in 
the State of Louisiana, were the only heirs of Isaac Jones, 
who died in the said last-mentioned parish and State about 
the year 1833 ; that her fiither [died?) leaving no will, and 
that letters of administration had never been taken out on his 
estate ; that there was property within this county belonging 
to the said heirs of the said Isaac^ deceased, which was likely 
to be wasted, or so disposed of as to be lost to the said heirs, 
unless some one should be appointed to administer upon said 
estate, to-wit, one mulatto girl; about eighteen years of -age, 
and of the value (as petitioner believed) of abflfUt two thou- 
sand dollars; — and prayed the said court^to commit the ad- 
ministration of said estate to the hands of such person, ot* 
persons as the said court might be pleased to select and ap- 
point ; and thereupon the said- Probate Court afterwards, to- 
wit, on the — day of A. D. 1.852', in said, county, made 

an order appointing said plaintiff administra1;or of the goods 
and chattels, rights and credits, which were of said Isaac 
Jones, deceased, in his life-time ; — all which will more fully 
appear by the record thereof, remaining of record in said Pro- 
bate , Court of Mobile county. And the defendant in fact 
saith, that the said Probate Court of Mobile county had no 
jurisdiction, or authority, to make said order, or to grant to said 
plaintiff administration as aforesaid ; and so defendant saith, 
that said plaintiff is not, nor ever was, administrator," &c. 
*' 4. That he doth not detain said slave," &c. 



t ■ 

250 ALABAMA. 



Miller v. Jones' Adm'r. 



* *' 5. That the said cause of action did not accrue at any 
time within six years next before the commencement of this 
suit/' &c. 

* The plaintiff demurred to each one of these pleas sepa- 
rately, and his demurrer was sustained as to the second and 
third. The grounds of demurrer specified in the second plea 
are, " 1st, becau^, though every allegation of matter of fact, 
upon. which defendant bases his said allegation of want of 
jurisdiction, in said Probate Court, were true, yet, if plain- 
tiif 's declaration be true, the said Probate Court had juris- 
diction in ^ premises" ; and, " 2d, because, though it be true 
that said decedent, at the time of his death, was not a citizen 
of, and did not reside iir, and had no property, estate, or 
effects, of any kind, nature, or description, in this State, yet, 
if Siher his death property belonging to his estate should be 
brougbt within the limits of the jurisdiction of the courts 
here, and the same sliDuld be here adversely held, or be wrong- 
fully converted by strangers or third peHfisons, the Probate 
Court of 4iny. county in-this State Avhorein the same might be 
found would ha^e jurisdiction to grant letters of administra- 
tion,- and letters af administration upon such' a state of facts 
would be valid, and would confer upon the plaintiff the riglit 
_to sue for such property*; especially as said plea does not show 
a right of property,* or a right to sue, in any body else than 
plaintifl,'; aSid so plaintiff says, tliat said second plea is bad, 
. and no answer to his suit as administrator, <fec." The same 
grounds of demurrer are specified, in short by consent, to the 
third plea,. ' ' , • . 

The evidence which was aaduped 'on the trial is all set out 
in the bill of exceptions,? a^d shows substantially the follow- 
irfg'facts : The intestate died in Louisiana, in 1833 or 1834, 
possessed of several slaves, and Ifli^v^ing a widow and six chil- 
dren. Soon after his death liis widow filed in the proper 
QOurt, according to the Civil Code of Louisiana, a petition 
for a renunciation of the community of acquits and gains be- 
tween herself and her deceased husband, praying that an in- 
"yentpr J" , of his estate might be made, and claiming as hei* 
separate property the negroes of which lie died possessed ; 
and an inventory was accordingly made under an order of 
court, which shows that the intestate's sepaifete property at 



JANUARY TERM, 1856. 261 

Miller v. Jones' Adm'r. 



the time of his death, consisting of articles of household and 
kitchen furniture, was estimated at about $90. The slave 
now in controversy was born, after the intestate's death, of 
one of those which the widow claimed as her separate pro- 
perty. The widow subsequently married one Daniel O'Dono- 
ghue ; and a suit arising between her and some of the intes- 
tate's children, the slave was run off from Louisiana by one 
Gayre, in consequence of said suit, and was afterwards deliv- 
ered by one Wharton to Mrs. Julia P. Canfield, who was a 
daughter of the intestate. Mrs. Canfield brought the slave 
with her to Alabama, and had her in her possessj|fn in 1852,. 
in Mobile county, when an attachment was levied on her, as 
the property of Mrs. Canfield, at the suit of Thomas P. Mil- 
ler, the present defendant. Jones B. Canfield, who was a son 
of Mrs. Julia P. Canfield, and whose deposition was taken 
by the plaintiff, testified, that his mother never claimed the 
slave as her own property, but as the property of her father's 
estate ; and that she told Miller, in the presence of witness, 
" that the girl did not belong to her, and that she held her as 
the property of the estate of Jones." The slave was sold at 
public auction, on the 24th of December, 1852, under an order 
of court rendered in said attachment suit, and was purchased 
by the defendant, for the sum of $850 ; and she was then de- 
livered by the sheriff to said defendant, and a bill of sale 
executed for her. It was admitted that the value of the slave 
was $850, but there \Vas no propf of the value of her hire. 
" For the purpose of showing what -stas the law of Louisiana 
in relation to Jhe rights of married women, and the inheri- 
tance and succession of the estate of deeeased persons, and in 
acquiring title to slaves 'by prescription, the defendant read 
in evidence to the jury, from the Civil Code of Louisiana, the 
following sections, viz., Nos. 866. 867, 870, 873, 875, 876, 
877, 878, 881, 882, 883, 884, 898, 928, 929, 934, 935, 936, 937, 
93^, 996, 1007, 1008, 1010, 1034, 1049, 1088, 1089, 1090, 1105, 
982, 1006, 1025, 1055, 2314, 2315, 2317, 2369, 2377, 2380. 
2382, 3492, 3487, 3420, 3421, 3437, 3439, 3444, and 3447; 
and the plaintiff, for the purpose of showing what was the law 
of Louisiana in relation to the same subjects, and that the said 
laws were different from the law as contended for by defend- 
ant's counsel, read to the jury certain other sections from the 



252 . ^' ALA^^AMA. 



Miller v. Jones' Adm'r. 



Civil Code of Louisiana ; and the said Civil Coder was de- 
Glared by the court to be in evidence before the juiy,"'- . 
-.Ou this evidence the court charged the jury as follows": 

" "^hat to entitle the plaintiff to recover in this case, he must 
show that he is entitled to the possession, or that he has the 
title with the right of possession. 

" That the question of title in this case Was between the 
title or right of possession of the plaintiff and the title or 
right of possession of the said Julia.»P. Canficld, through 
whom the defendant claimed ; and if the said Julia P. Can- 
field, wlijlflt in possession of the slave sued for, stated that 
she heldlne said slave for the estate, of said Isaac Jones, de- 
ceased, that declaration was evidence for the plaintiff that 
the possession she held was the possession of Jones' estate ; 
ajid if Mrs. Canficld hejd the possession of said slave for the 
estate of said Jones, and if the said estate had the title or 
, right of possession, the title of Mrs. O'Donoghue could not de- 
feat the action, unless the defendant conneeted . himself in 
some way with her title. . • ♦ 

'"l^hat the defendant could *not successfully defend himself 
ill this action by sTjowijig ^ala outstanding title in apy third 
person, other than Mrs. ,Can6eld, without connecting l^imself 
with such outstanding title. - * . .' '\ , * ■ 

" That by the laws of Louisi?iua,* where no written evid^ce 
,of title was shown, fifteen years' possession was necessary to 
gjy^e title to a s^ave by prescription. ' . ~; ^' 
. ,'. "•T'llat, if the jui^ fmmd ioi the plaintiff, they might give 
him hire for the negro whilst in the defendant's possession; 
and in the absence of any propf iis to what was such hire, tliey 
might allow him interest on the agreed value of the slave. 

"To all these charges the defendant cxcepjied, and asked 
the court to give the following ehargep : 

" 1. That, if the jury believe from the evidence that plain- 
tiff 's intestate, Isaac Jones, f esided and died out of the State 
of Alabama, and had not at the time of his death any man- 
* sion;;house or known place of residence in the State of Ala- 
bama, and had no property or effects in the State of Alabama 
jit the time of his death, tlie Probate Court of Mobile county 
nad no jurisdiction, on the 28th December, 1852, to grant let- 
ters of administration on his estate to the plaintiff, and the 



JANUARY TERM, 1855. 253 

Miller v. Jones' Adm'r. 

grant of letters of administration by said court to the plain- 
tiff was voidj and plaintiff was not (and is not) in law, by 
force of that grant, the administrator of the estate of said 
Isaac Jones, deceased, and the jury should find for the de- 
fendant. 

" 2. That, if the jury believe from the evidence that the 
slave sued for in this action was born after the death of Isaac 
Jones, deceased ; and that said Jones lived and died in the 
State of Louisiana ; and that by the laws of Louisiana, as in 
evidence before the jury, and by the other evidence before 
them, they further believe that the mother of the said slave 
was not the property of the said Isaac Jones, decreased, but 
was the separate property of the wife of said Jones, — then 
the jury should find for the defendant. 

" 3. That, if the jury believe from the evidence that the 
slave sued for was held in the State of Louisiana, for more 
than five years befoire the bringing of this suit, adversely to 
the claim of the heirs and other representatives of the said 
Isaac Jones, deceased ; and tliat by.the laws of Louisiana, as 
in evidence berore the jUry, sueh a^dverse possession gave a 
title by prescription to the slave to the person so holding such 
adverse possession, — then the plaintiff cannot recover the 
said slave in-tliis action, aild the jury should find for the de- 
fendant. : 

" 4. That in this" action th& defendant may show, under the 
pleadings, an outstanding title in ' any third person ; and if, 
from the evidence, such outstanding title in a third person is 
shown, the plaintiff cannot recover. 

" 5. That the fact that the defendant sued out an attach- 
ment against Julia P. Canfield, and under that attachment 
the said slave now sued for was levied on by the sheriff in 
the possession of said Julia P. Canfield, and was afterwards 
sold by the sheriff under an order of court made in said at- 
tachment suit, and at- such sale was bought by tlic defendant, 
and was delivered to him by the sheriff, — these facts do not 
prevent the defendant from defending himself in this case by 
showing an outstanding title in any third person." 

The court refused each one of these charges, and the de^ 
fendant excepted to each refusal ; and he now assigns for er- 
ror the rulings of the court, as above set out, in sustaining "the 



> 4^ 



264 ALABAMA. 



Miller v. Joues' Adm'r. 



demurrers to his second and third pleas, in the charges given, 
and in the refusals to charge as requested. 

Wm. Boyles and Wm. G. Jones, for the appellant : 
1. The grant of letters of administration to the plaintiff 
was made by a court having no jurisdiction : it was not 
merely voidable, but absolutely null and void ; and so the 
plaintiff was not, and is not in law, tlie administrator of Isaac 
Jones, deceased. In England, the granting of administration 
appertained, according to circumstances, either to the Eccle- 
siastical Court of a bishop, or of an arch-bishop. If it was 
made by a court not having jurisdiction, it was absolutely 
void. — 1 Williams on Ex'rs, 175, 181, note y : Prince's case, 
5 Coke's Rep. 30; The King v. Sutton, 1 Saund. R. 274, note 
3, and 275, note c. The same doctrine has been repeatedly 
held in the United States. — Griffith v. Frazier, SCranch 9'; 
Ex parte Baker, 9 Leigh 719; Wales v. Willard, 2 Mass. 120; 
Sigourney v. Sibley, 21 Pick. 101 ; Ewing v. Sneed, 5 Ji J. 
Marsh. 459; Creath v. Brent, 3 Dana 129; Wilson v. Frairier, 
2 Humph. 30 ; Echols v. Barrett, ^ Geo. Rep. 443 ; Slade v. 
Washburn, 3 Ired. 557; Springs v. Erwin, 6 i6.-27; Johhson 
V. Corpenning, 4 Ired. Eq. 216; Gayle & Piits v. Blackburn, 
1 Stew. 429. ' '>«^^.:;^:y^7»-: 

The Probate Court in Alabama is a court of limited' ^d 
special jurisdictipn. Hence itig jurisdiction to make any order 
must be shown b5' the record ; and if it makes a,n order in a 
case in which it has no 'jm'isdictiou, such order is not merely 
voidable, but absolutely null and void. — Gayle & Pitts v. 
Blackburn, 1 Stew. 429; Taliaferro v. Bassett, 3 Ala. 670, 674; 
Johnson "and Wife v. Gollirts, 12 ib. 322 ; Bishop's Heirs v. 
Hampton, 15 ib. 767. The grant in tliis case was made on 
the 28th December, 1852, before the new €ode went into op- 
eration. The Probate Court had no jurisdiction, except such 
aS was conferred by statute. These statutes are found in 
Clay's Digest 301, § 22, anS 303, ^33': they give jurisdiction 
to grant letters of administration — 1st, to the Probate Court 
of the county in which the decedent had. a mansion-house or 
known place fff residence ; 2d, if he had no such place, of 
residence, to the Probate Court of tlie county in which he 
died ; ar, 3d, in which his estate, or the greater part thereof, 



JANUARY TERM, 1855. 255 

Miller v. Jones' Adm'r. 



shall'be. " This case does not come under either of these heads. 

fi The law provides for administration, where any person died 

in this State, or died out of the State, having property in this 

'State at the tinjie of his death. It did not provide for^'tl*^ 
case of a foreigner, living- and dying out of this State, and 
having no property in this State. This is the manifest mean- 
ing of the words and spirit of the statute. The same statute 
has been expressly held in Mississippi not to apply to cases 
in which the decedent had no property in the State at the 
• time of his death, though property which had belonged to 
him was afterwards brought into the State. — Wright v. Beck, 
lO.S. & M. 277, 281. . 
When a plaintiff sues'as administrator, Ihe defendant may, 

-by special plea, set out facts shoAving that the grant of admin- 
istration to the plaintiif was void, either for want of juris- 

: diction in the court making it, or for any other cause. The 
same facts may sometimes be shown under the general __plea 

.of Tie ungues administrator; and where (as in this ca^e) the 
property never was in possession of the decedent, or the ad- 
ministrator;' they, woufd probably be a gpoddefenge under 

• the general issue of nan detinet,. which puts the plain tiflF on 
proof of his title.— 2 Stark. Ev.'siS, 317; 3 Chitty's PI. 940-1, ' 
and notes ; Stok^ v. Bates, 5 B. & c! 491 ; 2 Greenl. Ev. 341-2. 

' If these principles are correct, the court erred in sustaining 
' llie demurrer^ to the second and third pleas, and also. in re- 
, fusing, to give the first charge aske]3,by the def oxidant. 
t ^. As Isaac Jones lived and died in Louisiana, leaving his ^ 
property Iq that State, and .his widow, his children and heirs 
living in tliat State, 'tlie "right alid title to<sucli property are*** 
governed by the laws of Louisiana. By the laws of Louisiana, 
a married woman taay have and hold property separately, 
from her husband. If after his death -she r"fenQunces the a(>'. ■•■ 
quits and gains of the common property, and causes an inven- 
tory of his property to be made, she is entitled to take and 
hold her separate property. — Civir^ode of La., arts. 2314, 
2315, 2379, 2380, 2382, 2384. The evidence is positive, that 
the negro Jane was not born until after Jones' death ; and it 
conduces to show, that the mother of Jane was the separate 
property of the widow, and was claimed and held as such by 
the widow for many years, (more than five years,) in Louisiana, 






^r 



ALABAMA. 






Miller v. Joaea' Adm'r. 




^• 



■^ 



adversely to the heirs of Jones, who lived also in that State. 
The effect of this claim and possession of the widow is not 
weakened by the fact of there having been no administrator 
of Jones' estate appointed in Louisiana. There was no neces- 
sity for any such appointment : by the law of Louisiana, the 
Tight and title to all the estate, real and personal, of a de- 
cedent, is cast on the heir by the mere operation of law, just 
as real estate is by the common law ; and the heir may sue 
for any of it immediately. — Civil Code La., arts. 866, 867, 
870, 873, 875, 876-884, 898, 928, 929, 934, 935, 936, 939, 1007, 
1010, 1088, 1090. The heirs of Jones then, immediately upon 
his death, and without any grant of administration, might 
have sued in Louisiana any person holding any of Jones' 
property, real or personal, adversely to them. By the Lou- 
isiana law, title to slaves is acquired by prescription, by an 
adverse possession of five years in good faith (Civil Code 
La., arts. 3420, 3436, 3437, 3438, 3439, 3444, 3445, 3447) ; 
and prescription runs even against a vacant succession (i&., 
art. 3492.) The evidence conduced to show, first, that the 
slave never was the property of Jones, or of his estate, but 
was the separate property of the widow ; or, even if this was 
^ not sufficiently shown, it conduced to show, secondly, that the 
** widow claimed and held it i^ good iaith -ad'versely to Jones' 
heirs in Louisiana, for such a length of time a§ gave her a title 
V by prescription. Tlmt this is a good defence, against a suit 
brought by Jones or his representatives, for the' property in 
this State, is well settled.— Goodman v. Marks, 8 Porter 84; 
^Howell V, Hair, 15 Ala. 194; Jones v. Jones, 18 ih. 248, 253; 
Swfiwcombe'V* JLearitt, 22 ih. 631. ^^ 

3. In detinue, the defendant may defeat the plaintiff's action 
' by^howing an outstanding title in a third person. — Dozier v. 

Joyce, 8 Port.'gOQ: McCurry v. Hooper, 12 Ala. 823; Tanner 
V. Allison, 3 Dana 422. 

4. There was nothing in the proceedings of Miller under 
the attachment to constitute him a trespasser, so as to prevent 
him from defending himself in this ca«e by-S'hawing a superiolK 
outstanding title in a third person. - , ' "* 

5. There was no evidence whatever given to the jury as to 
. the hire of the n^gro, or the worth of licr hire or services 
^ whilst in the defendant's possession. If was undoubtedly 






'^??PHt^. JANUARY TERM, 1855. " ",. Ik f 



555. %• jw r 

: m — L-X- 

Miller v. Joacs' Adm'r. 




error for tlie court to charge that, in the absence of any such 
,. proof, the jury might give interest on the agreed value, in 
lieu of hire. 

John T. Taylor, contra : ^^r^ ■ 

1 . ,The letters of administration were not void on the ground 
that there was no property in the county of Mobile at, the 
♦ ,time they were granted. It is true, the record in one place 
alleges that the slave Jane, the property in question, was the 
property of the heirs of Jones, instead of alleging it to be the 
property of his estate ; but it is clear, on a proper view of 
the whole record, that the latter allegation was intended, — 
that the proof sustained it, and that the court viewed it in 
that light, and assumed jurisdiction on that ground. Nor ';' 

were the letters void on the ground that there was no property J^^ -rA 
in the county at the time of the death of Jones. The proper '^' ' ^ 
and only reasonable construction of the section of the act re- ^, 
lied on by the appellant, is, that there shall be property in . • 
the county at the time the letters issue. But, giving to the • ^ \ 
section the construction for which the appellant contends, still; V ^i 
it does not affect this case. General powers in all orphans'^ 
court maUers are given to the grobate judges ; and by sectioi 
31* (Clay's Dig., p. 303) and 'the 8th section of the act of 185.0'' 
. Xp- 22), the jurisdiction to issue letters of administration is 
•^ unrestricted, and given to all the- county-court judges. If thia 
section atooji alone, the powers in this case could ^ot bede-, i-.' " -f 
nied. The 22d section of»the act in Clay's Digest (p. 30f|^ .•> '^' 
merely restrains the general power in certain cases: when a j^. 

person -dies out of the State, and has no residence in the State, . •/ /. * 
but has property in a particular county at the time "of his 
death, then the court of the county in which the property is »' 

shall have the prior and only right to- issue letters ; but in a , ^ 
case where the intestate does not die in this State, and has no 
place of residence in this State, and no property here at the % 
time of his death, then this 22d section, if the appellant's 
idea of it be correct, does not bear upon it,, and leaves the 
general power given by the 31st section in full force. The ^ 

22d section is simply to establish prior rights, in certain cases, 
in certain counties. My position, then, is this : In a case 
where the deceased died out of the State, and had no I'esidence 

17 



.V , •. -.4 
k-- •*. ■.•- 



# * rW^ 



*.. .-.* ^ ••'/■■■■%: 



• ~«?-^ -m AVjar -■'. '. ■^»j5v-; 



M 



" ALABAMA. 



Miller v. Jones' Adm'r. 



. • 



^ 



■* 



■%iid no property in the State at tlie time of his death, and no 

V lettei^s have been granted in any other county inthis^Staife or, 
*'mk • any otiicr, and property is afterwards found*in oue cpunjy ittv.*"^^ j* 
t<it^ '-this 'State, and no fraud is charged, — then thi^P.robate Court' *, ', ■ 

^wliere the property is at the time the letters issue -has juris- . 

ttion VN'henever a necessity is shovfn. In thi^^^case a neces- ' 
/ ;s shown, by the statement in the record that the property 
would be lost or conv.ertcd unless an administratoi; was ap- ♦ 
pointed to prot^'lt. Besides, the record does not sJiow that '•. 
the property was in Louisiana at the time of the decedent's - 
death : it uses the word,s of the act, and must bear tlie same 
construction, and therefore be understood to allege that the 
^ \ property was in Alabama at. the death. ; :. . : ' ». -^. ;,-' \ v 

* ' 2. The proof shows that Mrs. Canfield r^eiv^'ff -flie^'pro-- - 
k* lia ^P^^'ty from and as belongiag to the estate; that she never ; 

". fWjfi^imerd it -as her own, but held it as the estate's; and that 

^ '> '*xhe appellant levied on it. as Mrs. Caniield's, had it sold as 

.. . hers, and bongi)t it,. knowing the character of her possession. , 

•*^ 'Mrs-. Canfield w:fis clearly estopped from setting up an out^ > 

li adding title, an* the appellant canppt assun^aa better posi- ^ 

jj^^n. than she had. *«^ . /^^ - - 

V : *^_ 3. But, even If die appellant«hpuld l?e tillow:ed to make this 
'"J|^yi||rtfenee, he entirely fdii.ed to make it out; and^j^e court there- , .•< 

.fore' cOri;e.ctly refused thu charges asked on this point. 'J'he*- ■ 
' ." figrpof fs positive' that the, le^^al title was in» Jones;, and the-^ , 

• •;•■' coijrt willsee that,' giving to thejappellant's evid.enc§ its fuU- 

* ■• ^jk scope, it only shows a claim on assertion, of titld, without ■ . ^ 



t** 




m proof of. a title in fffct. It is true, the evidence alludes \ ; 
slave named Jsinc, once in pj^ssession of Mrs. O'Donoghue; 
bift if-this is. the negro now Sued for^ whjch is not shown, still 
she got tfee possession from Jones? or took it after his death. 
But (it i.- - i'il) she kept this possession until it ripened into '^ 

^ -title by limitation under tlie laws of Louisiana; and the ^m 

■^ eourt was a^ed to ciiarge, that five years would give title 
under that law. /riiis charge was properly tefused, on two 
. ' grounds, viz., Ist,-t1ie full possession ^vas not proved ; and, 2dy 
.^ei^ause it-required fifteen years instead of five, (Civil Code, 
(•^tg, 3433, 3.^37, 3438, sl'ls, p. 521;,) and one setting up this ' 
^ prescription must prove a continuous, uninterrupted possession^ f » 
*. fojJbftittU, Jjinie,} j^ki^^pis not done in this case.— Art. 3466,^ 



#»• 












t...JxiNUARY TERM. 1855. 



Miller V. Jouts' 




¥■■: 



p. 525.' The statute of five years only a])plics where a written iTy 
title is shown and proved. — Arts. 3437, 3489, 3452. S^Cti 




». 



^"^OLDTH WATTE, J.— In England, as tll0*power to grant 

letters testamentary, or of administration, is lodged cxclu- *\j^ 

sively in the Ecclesiastical Courts, the act of those courts m 

'• cases in which they have the power to act, has always beep 

.•■•Ijeld conolusive (Cow. & Hill's Ph. Ev., 1 vol. 343) ; and the 

• same rule'is applied in the sai^e cases in this dbuntry, to those 

• courts to which this power is given by statute. — Wells' Will, 
■ 5 Litt. ^74 ; Brown v. Gibbon, 1 Nott & McC. 236 ; 1 Pick. 

535,*54r; 14 ib. 280. But the sentences of these courts, like 
tliose of every other court, are assailable for want of jurisdic- 
tion, .and Whenever a suit is brought by one on his title as 
administrator, if the facts in the plea show that the conr-t; 
which granted the letters had no authority to act, the plea, jp^, 
.. good.-^BuUer, J., in Allen v. Dundas, 3 Term K. 130; z Ct^wC*' 
. ♦& Hili's Ph. Ev. 364. The ground on which tlie second pfea , 
rests is, that the court had not the power to grant letters in 
any case wher&^the decedent was not ^ resident t)f, and -^ 
no effects in this State at* the time of his death ; but in'Rol>. 
inson v. Robinson, 11 Ala. 947, j^e held directly the contraEYj 
and we arc satisfied with the correctness of this depisioiif 
. The case last cited disposes of thfe second plea, and makes the 
. .'*third rest, alone. On the fact tlmt the application for letters * 
, ., did not aHege'that there was- any property belonging to the /" 
estate of the deceased within Mobile county. We incline to' 
the-opinion, that, looking at the whole application, and aj^ 
■p>ying the rules of constrtiction with the liberality which we 
"liWnk should obtain in regard fo proceeding^ In the Probate 
Court, the allegation of property in the" heirs was equiva- 
lent, under the circumstances, to an'assertion of title in tlie 
estate. But itis unnecessary to go so far; Xor we are satis- 
" fiM, that, giving to the application theeenstruction contended 
fo'r>>by ihe appellant, the applicant would not have been held 
dayru to the ground stated in the petition. It was not the ' 
aJleg*atioQ of tho petition which gave the court authority -to 
'act,'b\it the fact that there was property belonging to the es- 
,tate of the decedent within the State at the time the" letters 
were issued ; and as tlie plea does not negative the existence 




»^ 



hm 



f.4 



>. 
M 









*. 











Miller v. Jones' Adm'r. 



"of this fact, it fails to show the want of jurisdiction. The,.'* 
view we have taken is conclusive as to the second and third < 
pleas and the first charge requested. 
^^ In relation to the other points : The case must be reversed 
^ti the instructions given to the juifv, that in the absence of 
any proof as to what the hire of the slave sued for was worth, 
they might give interest on the agreed value of the slave by 
way of damages. The damages, in an action of detinue, are*^- 
for the detention of the thing sj^ed for ; and in case of slaves, * 
the value of the hire is the best, if not the only criterion of 
the injury occasioned by the detention. These damages • 
should be proved, and if not established by the evidence, a 
Itominal sum only should be given. It is true, that the hire 
of slaves is generally worth the interest on the money ; but ^ 
upon the same principle, if a slave was generally worth one 
'?,%undred dollars, or a horse thirty, we might dispense with 
■ ^. any proof of the value whatever. Such a rule would be en- • • •■ 
k* * , tirely too loose, especially in cases in which more satisfactory • 
^ evidence could always be offered ; and in such cases the fail- ,- 
W- ^ Tire to offer testimony would, upon a familiar principle, ope- 
, • .„ r*ate against the party on whom the law cast the onus. The 
A '^ measure of value- which the l|w fixes for the use or detention - 
' i0 bf money, cannot, w^th any propriety, be apj^^ed as the rule 
• 4 of compensation for tlie use of a sl^ve. , * 

. . ..'^ij^The question ^^e have just determined not going to th^\ 
! ,• merits, of the case, it is proper, with reference to the conduct . 
of the cause on another ti^al, to consider the other questions' ' 
presented upon the record ; the principal of which is, as to 
,* the right of thfe appellant to set up the title of Mrs.'O'Dono- 
•* * • ghue in order tor protect himself. " In discussing this question, ' 
} .' we do not consider it necessary to pass upon the evidence 

contained in the records * It was treated by. the court below .. ^ 
, as conducing to establish such a title, and we shall so conr ■ < 

■■^H .aider it. * , ' 

. V .It is certainly true, that in the action of detinue, the plain- 

,%■■ tiff may recover upon possession alone, against any one who , " 

• . ' has not as good a right to the possession as himself. He re* 

v- ., ; . covers on the right he has to have the thing delivered td him. • .j "*• 

Where the possession alone would entitle the plaintiff to B^t^' 

ye^viy^^ we do not see how tUMi4;b^^part)r o^ld defeat 4^ : ' 




"JANUARY TERM, 1855. 



Miller V. Jones' Adin'r. 




I 



^ '. BjppTOving title in a stranger unless he connected himself 
||^> with it, thus proving that lie had the better right. But 
' . . where the claim is based not upon possession, but on the title, 
there the claim may always be disproved by showing that the , 
V ^ title is not ii^ the plaintifl', but in another. Thus, if the plain- 
■•* tiff was to show that he was the owner at a period anterior 
*• to the suit, the defendant might well show that he had parted 
• ' with the title before the commencement of the action, and thus 
• defeat a recovery, — not by showing any right in himself, but -v. 
by proving that the other party did not occupy a position 
which would entitle him to recover. In the present case, -.^ 
therefore, the defendant below might properly have set up the 
title in Mrs. O'Donoghue, unless he was es,topped by the act 
of tiie party under whom he claimed, or unless the possession •, -^m 
> ; ' of the plaintiff prevented him. Conceding ,that Mrs. Can- 1^^ >.i 
field actually held the possession of the slave for the estate of \^ ' 
.' .. Jones, we think she would be estopped from denying the , .»' 
right of possession to be in that estate, because such a denial 'fif^ 
would be inconsistent with the relation she occupied'. It Jb -^^ 
clear, also, that her declarations to that effect, while in pfflp ** 
siesfeion of the property, would ^e evidence |Mpi, to the character, ; 
of her possession, — not conclusive, — but entitled to such weight m '^ 
as, under all the circumstances, they deserved ; but if they 
• satisfied the jufy of the fact that she so held, then her posse^- * 

ion would be' the possession of the estate, and the .appellant, \ 

f '.- claiming through her and obtaining her right only, could not 
_ s6t up a title in a; third person, at least without connecting 
himself with it., »' _.". ^ ^. " 

Applying these principles to the charges given, tne first ^ 
', charge was correct. The second was erroneous, as it asserted, 
in eflect, that although the claim of the plaintiff was based' 
upon neither the title nor the possession of the estate of Jones, 
a recovery could beJiad upon the evidence disclosed by the ^ ■ 
record. We sSy this was the effect of the charge, for the rea- 
son that, if the evidence proved that Mrs. O'Donoghue, as the ,. 
wife of Jones, held a separate estate in the mother of the ^ 

slave sued for, th^n, on the death of Jones, by renouncing the 
* A acquits and gains of the common property, and causing an 
.. « inventory to be made of the property of her deceased hus- ^'^ 
- band, she acquired a perfect title to her separate property ' 




^- ALABAMA. 

— ^-ft ; — ' 

Walker, executrix, v.. -Walker's Distrihutees. 






(Civil Code of Louisiana, arts. 2314, 2315, 2379, 2380, 2382, 
2384) ; and if the jury did not find that Mrs. Canfield held 
the possession of the slave for the estate of Jones, the right 
of the administrator to recover would turn upon the fact as to 
whether the title was in the estate ; and this would be dis- 
proved, by showinsT the title to be in another, without con- 
necting himself with it. 

In relation to the laws of Louisiana upon the question of 
title by prescription, we think the ruling of the court was coP- 
rect. By the Civil Code of that State, (Art. 2415,) it is re- 
quired that all sales of slaves "shall be made by authentic 
act, or under private signature" ; and all verbal sales of that 
species of property are ^declared null. By reference to the 
p^ ]w several articles of section 2, chapter 23, (page 521,) it willbe 
.^^ seen, that slavds without title cannot be pr<)scribed, excejH by 
1^ a possession of fifteen years. Article 3444, which was reliM 
'^^ on by' the appellant, allows a prescription for slaves with title 
^ by a, possession of five years ; but v.-e construe this article 
If with reference to article 2415, which, in effect, declares verbal 

titles to be void. . \ »^^ 

'. *»fr What we haveliaid'will be^puffioient for the cdfrfect conduct 
of the^cause upon another trial, upon the que^ions presented 
by the present record. . " " 

.<! Judgment reversed, and cause x'emanded. 

■ 4^ 



WALKER, Executrix, vs. WALKER'S DISTRIBUTEES. 

vi. Tlie a-'sent of ni> executrix to a specific legacy tj herself 'of a life estate in 
two slaves, will he presumed, when the facts are, that.she is the widow of 
the testator ; that she did not dissent from the will, although it would have 
^ been greatly to her pecuniary advantage to do so ; that she promptly quali- 

fied as executrix, and kept the estate together (under the will j for thl-ee years, 
' for the purpose of raising and educating the children ; that in the meantime, 
tjy her iodustfy, econoraj, and prudent management of the estate, she totally 
J. exonerated it (rom all indebtedness; and that she ceased to be executrijp' 

' ' after all the debts "Were paid, and claimed a credit on final settlement of her 
administration for services rendered by said slaves to the estate after the tes- 
tator's deatb. \: 



'• .« 



_JANUAEY TERM, 1855. 263 

Walker, executrix, ^. Walker's Distribatees. 

21 In sucli ca«e. h^r asseut, thdugli not given until all the debts of the estate 
were paid, or even until the day before she ceased to be executrix, relates 

. back to the testator's {leatli, and she is entitled to a credit for the value of 
the services of the slaves to tl)e estate, as proved. froiUi'the testator's death. 

3-, An executrix held entitled to a CredH, on final settlement, for lawful jail 
fees paid by her to re<i.aln the possession 'of certain slaves belonging to. the 
estate, who had been taken up and committed tojail as runaways, when the 
evidence showed the following facts : That the executrix was the widow of 
the testator, and no other p<ji'son than herself and her children was interested 
in the estate ; that the estate was kept together under the will, and the plan- 
tation kept up and cultivated ; that the overeeor employed by her was cruel 
and .severe towards the slaves, and several of them had previously run away 
on account of his cruelty, and had been taken up and committed to jail, 
".for whi^h and other jail fees allowance had been made"; that said overseer 
made good cropSj^ftjit was finally discharged by the executrix, in the fall of 
the same year, onr«fccount' of his severity^ the slavee. , 

'Appeal from the Oqjirt of Probate of Macon. 

In the matter of the estate of Edwin 0. Walker, decease^, 
on the application of his executrix for a final settlement of 
her administration. . . 

The testator died in September, 1847, after having executed 
his Jast will and testameilt, in which he appointed his wife his 
executrix, and which contains the following clauses : 

"Item 1. After all my just debts are paid, it is my will and 
desire, that the remainder of mj property, both real and jjer- 
sonal, shall be kept together for the benefit of raising and 
educating my children, and remain so until my wife Julia Ann 
does marry, or either of my daughters does marry or become 
of age. In case there should be a division, by marriage or 
otherwise, it is my will and desire, that the younger children's 
part of my estate should be kept together as a joint property 
for their benefit. Should I not purchase a farm before: my 
death, it is my will and desire, that my executrix or admin- 
istrator should purchase a farm, sufiicient to work my hands, 
out of any moneys that may. belong' to my estate; and the 
remainder and overplus, after the support of my family, to be 
expended for negroes, or any other ])roperty, for the benefit 
of said joint estate, or of the children's estate, as the case 
may be. - -* 

" Item 2. It is my will and desire, that Thomas P. and 
William S. Miller shall have, out of the joint funds of my 



«- 



#* 



264 ALABAMA. 



Walker, executrix, v. Walker's Distributees. 



estate, one thousand dollars each, to be given to them bj my 
executrix, &c. ; to be paid to them at the time they may be- 
come of twenty-one, discretionary with my executrix, or at 
the age of twenty-five, of each legatee mentioned in this item. 

" Item 3. It is my will and desire, that my wife Julia Ann 
shall have, during her lifetime, negro man Arnold, about 
V forty-five years old, and his wife Hannah, about thirty-five 
years old, and an equal distributive share of the remainder of 
my estate, both real and personal, with my children, during 
her lifetime, and at her death to be divided equally among my 
surviving children. 

"Item 4. It is my will and desire, that the remainder of 
my estate be divided equally among my children, as specified 
in the second item ; my daughters' part to be settled on them, 
during their lifetime, for the benefit of them and their heirs, 
in the hands of some qualified trustee, for their use alone. In 
case either of my daughters die without lawful issue, then 
their portion (shall ?) be equally (divided ?) between my sur- 
viving children. -■ « 

" Item 5. Whenever a division may take place of mv estatieV 
it is my will and desire, that the lands shall be valued; and 
the amount of the legatee's or legatees' part to be paid to them 
out of moneys arising from the younger legatees' joint estate, 
if Jit can be done without sacrificing or selling their negroes/% 

This will was attested by only two witnesses, and was ad- 
mitted to probate on the 14th September, 1847. Xhe widow 
qualified as executrix on the 18th October, 1847, and had 
charge of the estate from that time until some time in 1852 
(the record does not state the precise time.) On the final 
settlement of her administration, at the June term, 1853, she 
claimed a credit of $75.0 for services rendered to the estate 
by the said slaves Arnold and Hannah ; and presented three 
, vouchers for money paid to one W. F. Wade, <imoun ting to 
$34 50, jail fees for runaway negroes belonging to the estate. 
The evidence in relation to each one of these items is stated 
at sufficient length in the opinion of the court, and for that 
reason it is omitted in this place. The court refused to allow 
. any one of these credits, and the executrix excepted to each 
:. refusal ; and those rulings of the court are now assigned for , 



" JANUARY TERM, 1855. 2^5 

Walker, executrix, v. Walker's Distributees. 

Geo. W. Gunn, for the appellant : 

From the provision contained in the third item of the will, 
no doubt can be entertained as to when the right and enjoy- *• 
ment vested : itjs evident that the testator intended to confer 
upon his wife, during her life, the.slq.ves named, oyer and 
above what each one of his children "should take, and that the 
same should vest in her at his death ; and such being his in- 
tention, the same should prevail. ^ When a legacy is given 
generally, without appointing the time for its enjoyment, it 
vests immediately upon the testator's death. — Frierson v. 
Frierson, 21 Ala. 549 ; Capal's Heirs v. McMillan, 8 Port. 
197; Hunter V. Green, 22 Ala. 336. 

It is insisted, however, that the second clause requires the* 
estate to be kept together, and that, giving effect to the whole 
will, the widow is not entitled to the enjoyment of the ser- 
vices of these slaves until a distribution shall have been had 
under the provisions of this second item. If there is any con- 
flict or repugnancy in the will, it will be found in these two 
provisions ; and if such: repugnancy es;ists, the latter clause 
must prevail. — 1 Jarm. on Wills, pp; 893 to 403; 22 Ala. 336; 

5 ib. 143; 2 Stew. 170. But, sipce the law requires all the 
provisions of the will to be reconciled, if possible, the question 
arises, whether or not these two clauses can be reconciled 
with each other, and with the other provisions of the will. * 
For the appellant it is contended, that this may be done, by 
decreeing to the widow the present enjoyment of these two 
slaves, and allowing hire for their services. A different con-. • 
struction would defeat the testator's evident intention to give 
the widow the addi^tiqnal advantage of the services of the 

: slaves over and above each of his children. To say that the 
. .use of the property, with the rigM, did not vest in her until 
a distribution of the estate, would not only sacrifice the third 
clause to th.e second, but would sacrifice the specific bequest 
in the third clause to the general bequest in the second ; and 
this is not allowable. — 21 Ala. 549; 5 i6. 143, The pi-ovisions 
of this will differ from that in the case, of McLeod v. McDonnell, 

6 Ala. 236, and more nearly resemble that in Frierson v. 
Frierson, 21 Ala. 549. 

If this construction be the correct one, there can ]be no doubt, 
under the facts disclosed by the record, of the euor in the 



266 >"' ALABAMA. 



Walker, executrix, v. Walker's Distriblitees. 



refusal of the court to allow tlie "widow credit for the sef rices 
of the slaves. The proof is, that they were profitably em- 
-ip,*^ ployed in the service of the estate, and that their services 
were worth to the estate $250 per annum; 'and further, that 
she acted •iii'' good faith,; and freed the estate, partly by the 
services of these slaves, of large and heavy debts then hanging 
over it. 

The court; erred, also^ in refusing to allow the appellant 
credits fof the three vouchers paid to "W. F. Wade. The 
proof shoAvs, that she a^ted in good faith ;* that by means of 
her industry, econoni5vand prudent management, she relieved 
tne estate from tlie .embarrassment in which the testator left 
it ; that she dischargad the overseer because of his cruelty to 
. the slaves^ and it fails to show that she had notice c^Jiis 
cruelty until after the demands in question became a charge 
against the estate. It was necessary for her to pay these de- 

■ man^s, in order to get possession of the slaves taken up ; and 

there can be no justice in requiring her to pay them out of 

her own funds. All reasonable and proper allowances should 

be made in favor of *an executrix thus circumstanced. — Pinck- 

ard's Distributees v. Pinckard's Adm'rs, 24 Ala. 250; Moo;{-e's 

Executors V. Moore's Distributees, 18 z5. 242, . 

• t . . 

" , " V 

■ j. Clopton & LigOn, contra: 

The appellant being both executrix and legatee, her pd's- 

■ session of the Tiegroes during her administration of the estate 
will be referred to her right as an executrix, and not as 
legatee, unless she has done some act equivalent to an assent 
to the legacy ; and, if her acts' are equally applicable to her 
character as executrix,»as to her title of legatee, they will not 
constitute an implied assent. — % Lomax on Ex'rs, p. t33. The 
estate is shown to hate, been in debt ; and whilst the bill of 
exceptions states that she has freed it from debt, yet it does 
not state the time when these debts Avere paid. From the ac- 
count current of the executrix set out in- the record, we dis- 
cover th^t she was paying debts af^ late as August; 1852. She 
weuld certainly be considered as holdihg the negroes in her 
riglit as executrix so long as there were debts unpaid. Whilst 
she held them ag executrix, tlfe Estate would be eijtitled to 
'the proceeds of theif labor': she would not b6 permitted to 



JANUARY TERM, 1855- . S67 

. ? * »> • '■ — ■ 

Walktr, ■executrix. V. Walker's Distributee8<«f" 



take these proceeds, until s!ie elected to take them aS a lega- 
ted. For these 'reasons, the allowance asked for the hire of 
said negroes ought to have been refused. ■%, 

If, however, the above conclusion is not correct, the allow- 

'lince was properly refused, for another reason : The allowance 
was asked for the sum of $750, the full value of their hire from 
the time she took charge of the estate as executrix until the 

"time of her final settlement ; and she was certafnly not enti- 
•tled to hire for the first eighteen months. The statute giving 
to a legatee the right to sue for his legacy, at common law, 
limited that right to the expiration of eighteen monj^lis from 
the probate of the will. Having no right to sue for it, or, by 
parity of reasoning, no right to take the negroes as a legatee, 
she has no right -to their hire during that period. 
"^ But, if the judge below was wrong in the reasons and prin- 
ciples upop which he refused the allowance, the result which 
he attained was nevertheless correct, and the executrix was 
not entitled to an allowance for the hire of the. negloes, for 
ihe reason, that, upon a proper construction of the will, said 

.' negroes were to be kept together with the balance of the es- 
•tate, until the period for a division fixed in the will had 
arrived. Every attempt will be made to give the whole will 
such a construction as will render each part of it efi'ectual ; 
and, in the attainment of this object, the local order of the 

(-limitations is disregarded, if it be possible by a transposition 
of them to deduce a consistent disposition from the entire will. 

' 1 Jarm. on Wills, pp. 415-16; Walkerv.Walker, 17 Ala. 399; 
Stallsworth v. Stallsworth, 5 ib. 146; 2 Paige 122. The gen- 

, ' era] intent, although first expressed, will overrule the parti- 
cular. This is now well established. — 1 Jarm., p. 411, note, 
and cases cited ; 2 Williams on Ex'rs 714; 11 Gill & J. 206. 
Applying these principles to the construction of this will, 

: It seems evident, the intention of the testator was that these 
two negroes should remain and be kept with the residue of 
Tiis estate, for the benefit of raising and educating his children, 
Tintil his widow married, or either of his daughters mar- 
ried or became of age, when a division was to take place. 
What was the general intent of the testator, as ascertained 
•from a construction ef his whale will so as to make one 
part harmonize with the others? In the first clause of 





V. r^ 



-,.-■ '--^ 



268 JiF" ALABATJA. » 



.^Walker, executrix, v. Walker's Distributees. 



his wiH, he provides for keeping his estate together, after 
paying his debts. When, however, his "vvidow married, 

r6r , either of his daughters married or became of age, his 
. estate was to be divided ; and, in the third and fourth clauses, 

; his object was, to arrange the manner in which that division 
was to be made — that is, Arnold and Hannah were to be taken 
out of the estate, and then the remainder to be equally divided 

' between his widow and children. This manner of a division 
is'provided'for in two separate clauses, because he intended 
his widow to have only a lifetime estate in her portion. This 
construction is further supported by the fact, that, in the same 
clause in which he gives Ms widow Arnold and Hannah, he 
also gives her an equal distributive share in the remainder of 
his estate. The construction which gives her a right to the 

, possession of Arnold and Hannah immediately upon the pro- 

' ■ bate of the will, or earlier than the period fixed in the will 
for a division, will also give her a right to the same possess- 
ion of an eqpal distributive share in the residue of his estate, 

- and thus defeat the object of the testator to keep his estate 
together. ' » ■ ■ 

The other allowances, asked by the executrix for payments 

. made t^ W. F. Wade for apprehending and committing run- 
away slaves, were properly refused, for the reason, that these 
slaves ran away on' account of the cruel treatment of an over- 
seer, who was retained by the executrix ; and that, too, after 
she had been compelled to pay other fees of a similar kind in 

. a previous year, (which had been allowed her in former annual 
settlements,) an(i which were also caused by the cryel treat- 
ment of the same overseer. These expenses were incurred 
by the improper and cruel treatment of her own agent, and 

, by her disregard of her duty to protect said property. 

RICE, J.-— The bequest of the two slaves Arnold and 
Hannah, contained in the will of Edwin C Walker, to his 
wife during her lifetime, is* a specific legacy. Upon the evi- 
dence set forth in the record, the court below decided, that 
she was " entitled under the will to the possession and services 
of said two slaves, but as she had permitted them to remain 
in the service of said estate, of which she was possessed as 
• executrix, and not having signified her assent in any manner 



■ V ; JANUARY TERM, 1 855^ /r .^'^^ t! 'f^ 

Walker, oxecutrix, v. Walker's Distribntees. 

to take them as a legatee, she was not entitled to an allowance 
for their services." It becomes our duty to inquirje if hether 
this decision is correct. . 'v 

"We admit, that the assent of an executor is as necessary to-V> 
a legacy bequeathed to himself, as to a legacy bequeathed to' ^. 
any other person ; but this rests on the principle, that until 
he has examined the state of the assets, he is incompetent to 
decide whether they will admit of his taking the thing be- 
queathed as a legacy, and whether it must not of necessity be 
applied in satisfaction of debts. — 2 Williams on Ex'rs 850. 
It is a* a protection to the executor, that his assent to a legacy 
is required by law. — Ih. 843, 844. 

His assent may be either express or implied. When the 
legacy is to himself, he may not only in positive terms an- 
nounce his election to take it as a bequest, but such election 
may also be implied from his language or his conduct. — 2 
Williams on Ex'rs 850, 846. Any expression or act of the 
executor, which shows his concurrence to tjie thing bequeathed, 
will amouij,t to an assent. — 4 Bacon's Abr. 112. A small mat- 
ter will amount to an assent — an assent being but a rightful 
act ; especially where the estate is clearly solvent, and there 
is no probability that the legacy T^ill be needed to pay the 
debts of the estate.— 6 76. 331. 

In certain cases, the assent of ^he executor may be presumed, 
upon the principle that, in the absence of evidence, the 'exe- 
cutor shall be taken to have acted in conformity with his duty; 
as when an executor dies after the debts are paid, but before the 
legacies are satisfied. So, the assent of an executor may be 
concluded from the legatee's possessing himself of the subject 
bequeathed, and retaining it for some considerable time with- 
out complaint by the executor. — 2 Wms. on Ex'rS 848. And 
so, (we feel safe in adding.) the assent of an executrix to a 
specific legacy of a life estate in two slaves to herself, ought 
to be presumed, when the facts are, that she is the widow of 
the testator ; that she did not dissent from the will within the 
year after its probate, as she might have done, under the act 
of 1812, (Clay's Dig. 172-3,) greatly to her own pecuniary 
advantage ; that she promptly qualified as executrix, and for 
at least three years continued as such to keep the property 
together (as directed by the will) £or the purpose of raising, 



■¥ 



2Tb- 




Walki^SlBSBBUtrix, v. Walker's Distributees. 



, educating, and laenefiting the children of the testator ; that 
in the meantime, by her industry, economy, and skilful man- 
agement of the estate, she has totally exonerated it from all 

* ^. indebtedness ; that in all these matters she acted in.good faith ; 
*M|t that aftir all tht debts of ike estate were paid as aforesaid, she 

ceased to be executrix; and that in her account current for a 
final settlement of her administration, she claimed a credit or 
allowance for a certain amount for the services rendered to 
the estate by the two slaves specifically bequeathed to her as 
aforesaid, since the death of the testator. — Gantt v. Phillips, 
23 Ala. 275, From these facts, we feel bound to presume the 
assent of the executrix to the specific legacy of the said, two 
slaves to herself. 

It makes no difference, in this case, when that assent was 

given ; for, if not given until after all the debts were paid, nor 

until the day before she ceased to be executrix, it had re- 

' lation to the time of the testator's death, and entitles her to an 

allowance against the estate for the amount she proved the 

" services of these two slaves to have been worth to the estate 

' siuce the testator's death.— 2 Wms. on Ex'rs 849, 850, 876, 877. 

The Probate Court erred in refusing this allowance to the 
appellant. ,} 

We now proceed to inquire, whether the Probate -Court 
decided correctly, in refusing to the executrix any credit or 
allowaflce for the lawful jail fees set forth in the bill of excep- 
tions, which she paid to the jailor of Macon county to regain 

• ■ the possession of certain slaves of the estate, who had been 

arrested and lodged -as runaway slaves in the •jail of said 
county in August and September, 1852. 

If the executrix, after ascertaining that these slaves were 
in jail, had,»without some legal excuse, permitted them to re- 
main there, thus increasing the jail fees, and depriving the 
estate of their services, she would have been guilty of a viola- 
tion of her duty. No reason, or excuse, is shown why she 
should not have taken them out of jail. She could not get 
thein out, without paying the jail fees. Yet the court below 
has, in effect, decided that, although she did pay the fees, and 
thereby restored the slaves to the service of the estate, she 
shall lose the money thus paid for the benefit of the estate. 

The record sljpws, that, the testator left his estate jnuch in 



JANUAtlY TERM, 1855. 271 

Walker, execatrix, v. Walker's Distributees. 



debt ; that he directed his property to be kept together until* 
the occurrence of one of several specified events ; that neither 
of the events thus specified has yet occurred ; that the execu- 
trix- is the' mother of his children ; that she has kept the 
property together, and freed the estate from debt ; and that 
she and her children are the only persons who can po"ssibly 
lose anything by the abuse of the slaf es, or by any other im- 
proper management of the estate. The record also shows, . 
that in 1852, and prior thereto, the executrix had in her em- 
ploy an overseer who was cruel and severe upon slaves ; that 
some of the slaves had been severely whipped by him, and 
several of them had run away in consequence of his cruelty, 
and been taken up and committed to jail, for which and other 
jail fees allowance had been made ; that these things had oc- 
curred before the particular slaves ran away for whose jail 
fees a credit or allowance was now claimed by the executri:^ 
and that said overseer made good crops, and continued in the 
service of the estate until in the fall of 1852, when he was 
discharged by the executrix on account of his severity to 
slaves. Such is, in substance, all the evidence relating to the 
decision now under consideration. 

An executrix, .in this State, has all the rights and powers 
which she has by the common law, except so far as those rights 
and powers are abridged or modified by statute. — Woolfork 
V. Sullivan, 23 Ala. 548. Under such a will as that of the 
testator in this case, the law allows a large discretion to the 
executrix, in the management of the estate, and in the selection 
of overseers. In the exercise of this discretion, she is ngt to 
be subjected to liability, if her acts are not unlawful, and are 
attended with reasonable diligencejind good faith. — Hext v. 
Porcher, 1 Strob. Eq. 170. 

Whether the executrix acted properly or improperly in 
employing such an overseer as she did employ, we do not feel 
called on now to decide; for, if it be conceded that, in em- 
ploying him, she acted improperly, we all agree that the 
evidence does not prove that the running away of the parti- 
cular slaves as to whom the jail fees in question were paid, 
was the proximate result of her act in employing him. — Jones 
V, Donnell, 13 Ala. 491; Sedgw. on Dam. 74-5; Vickars v. 
Wilcocks, 8 East's R. 1; 2 Greenl. Ev. § 256. 



^ r ■*:^ '"ALABAMA. 



Adams and Wife v. Adams. 



'. Without deciding whether there are not other valid legal 
reasons, which would induce us to hold the action of the court 
below erroneous, in refusing to the executrix any allowance 
for the jail fees specially set forth in the bill of exceptions, 
to-wit, those paid by her in August and September, 1852, it 
is clear from the single ground above stated, that the Probate 
Court erred in this refusal. And for the errors in the several 
rulings above considered, the decree of the Probate Court is 
reversed, and the cause remanded. 



• • ADAMS Ax\D WIFE vs. ADAMS. 

1. A promise by defendant, upon valuable consideration, to give his daughter, 
who was plaintiff's wife, 'a full share of his property, which then and there 
was worth $25,000", is too indefinite and uncertain to support an action 
under the Code. 

2. It seems, however, that a promise by a father, upon valuable consideration, 
to make his daughter equal in property t6 his other children, (or to give her 
so much as would make her share equal to a given portion of his estate ; as, 
one-fourth, one-fifth, &c.,) is sufficient to support an action, if thfe parties 
contemplated its present execution upon the performance of the considera- 
tion. 

8, Such a contract, although its execution may be postponed by circumstances 
beyond a year and a day, and although the defendant's estate consists entirely 
of l£t\)ds, is not within the statute of frauds. 

4. When a contract admits of two constructions, one of which will destroy", and 
the other uphold it, the latter construction must prevail. 

5. When no time is specified for the performance of a contract, the law requires 
that it shall be performed within a reasonable time. 

6. When plaintiff below is appellant, and assigns for error the overruling of his 
demurrer to the plea, the judgment will be reversed, and the cause remanded, 
If the plea is bad, although the complaint also was demurrable. 

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

This action (Spencer Adams and Wife v. John Adams) was 
commenced in March, 1853. The complaint was in these 
words ; 



JA NUARY TERM, 1855. ^ 

i ' Adams aiM Wife v. Adatn3. 

. " The plaintiffs claim of the defendant twenty-five thousand 
dollars, due from him by account of the 5th day of July, A. D. 
l^oUwMch.&um of money, with interest thereon, is now dnfe. 
, • : "And for that whereas, heretofore, to-wit, on the 1st da;y of 
■J^uly, 1847, there was. a certain, matter of controversy between 
said -defendant and one Jane Candell, relative to thcwill and 
estate ef Spencer Adams, Sr., deceased; the defeudant prom- 
ised, plaintiff Spencer Adams, that, if he would make, or cause 
to W n^ade, ynto him, the said defendant, a good" and lawful 
.title to all the right, title, or interest, that the said Jane Can- 
dtll, daughter of the said Spencer Adams, deceased, had or 
has to the" north-west quarter 'of section thirty^ and the west 
half of the sonlh-west quarter of section thirty, in 4;ownship 
fifteen, range eiglit.-^being' two hundred and ^orty acres ; and 
would also abandon, or cause to "be abandoned, a certain suit 
hi chancery in respect to said controversy, about to be brought 
againstsaid defendant, (all of which said Spencer Adams then 
aud there prcymised and undertook to dd,) he, the said defend- 
a*)t,*^Y0uld»giv6 plaiiirtiff. Elizabeth Adams, who is sfvid de- 
fetidant's daughter, a ^11 share of his property, which then 
and there was worth t\v^nty-five thousand dollars ; and 
plaintiffs 'aver, that said Spencer Adams, djd, Well and truly, 
pejvft)j-m what he had so undertaken 'and promfsed, but that 
said defcndffnt, oft his paj't, bae utterly failed and refused to 
perform his said undertaking and promise ; to plaintiff's dim-^ 
age twenty-five thaireand dollars." •■ • . 

• ^"The defendant piejj,4€id, in short b^i consent, to the first 

joenfr — -• ' •'. *•"■*;' '•s:'-*' •* '■' ' ■■■ *'.-'•-*'' 
• '*!. That?'ij6 h not !rfifet4ed as:lM-eIn alleged,* or in any 
otjief mannel*, to the said plaintiff. . '' ' ■• 

• '." % The Bt^tote df linjitafions of three years, the first ct)UHt 
feeing for ftR open account'. • *, * 

• "'S. i*aynjrent of tl>e acQOunli 6p demand theibin alleged." 
Aiidftj' the 'second co>unt l^e pleadfed^ iii short by consent — 
*' 4* That ^e die not ptoiaiise* in manner and form as al- 

legeA"' &c. ',*.'■ . * • ' 

- ■":§.'• Uha* title said estate of t*he said defendant, in 'the s^econd 
count,of the complaint men-tioned, consists of* lands and real 
estate ; and tiiat defendant's^3romise,if any was made by him, 
as in tjie said socoiid cotiat alleged, was not in wi*iting, signed 
. 'l8 ^ 



' ^i ')^' ALABAMA. "^V:- [*' ■ . 

. ' Adams and Wife .v. Adatns. 

by^e defendant, or Vy £lny one by him, thereunto authorized. • 

" 6. That defendant's said promise, as alleged in said second 
count, if any such promise was made, was not to be performed, 
within oile year from the time,oS the making thereof, and was 
not {and is not) in writing, signed by defendant, or by any 
one by hija thereunto authorized. - • 

^ . " \. .That said promise, if any such was made, was without 

ooi^ideration. . Jy^ ■?**+ 

" 8. Tliafr if any promise' was made by defendant, as alleg^ 

in said §econd count, the consideration thereof was not, and- 

has not been pi^rformed. Av 

" 9. The Statu};e of limitations of six years. :*' 

" 10. The general issue, to each count in the complaint.'' *ii< 

, ' y^Jhe plaintifiE3.took issue on ail tiieee pleas,, except the fifth 
and the sixth,, to which, they demurred, "because }>}ain tiffs 
aver in their said count a, performance of their said contract, 
as set out in safid second '^CQuat*'" The couj^t overruled these 
demui-reir^, apd the plaintiffs then replied to the- fifth plea, 
'' that heretotore, Ho-wit, on.the day and year aforesaid,' the 
' sai'd Spei5o(jr Ada^*s,oflB of -the plaintiffs, in -pursuance of his 

^ promise, agreemei>t, and undertaking with .said .defendant, as 
set forth in the said, second count, did cause to be made to 
the said defendant a good aijd lawful iitle^to all the right or 
interest .that- the said, Jane-Candeli had or has* to the sa^id 
la»d descriVed in said count, by deed duly executed by the , 

. said Jane a'nd one Abner Candcll, hel" husband^ which said 
■ deed, plaintiffs aver,^ t^as received ai^d accepted by said de- 
fendant, and that unj^r §aid deed sai4 defendant is now, and 

.^ has been, in the quigt dnd peaceatlc possession and enjoyment 
of said itin'ds ; aiid^ plaintiffs a^er, moreover, that said Spon- 
cpjp-Adams di«d alciandou tlie bringing of Said su\t iii ehancory, 

,,■ as tlet forth iirsaid count, as he premised ahda*inderlook to 
^0 ^^n4. sa pUintiffs avej,* thcit ^id Spencer Adams hatii 
fully Sone-and performe^aH thayie uadertook hud jSromised ; 
, aud*tbis tliey are; read}' ^ to vpfi^-.'^ Co ttis l-eplicaticoi the 
defendant 'demuFred, "becavisjp said replication is, .in'-sub- 
stance, bat a re-assertion of-th^ allegations of the fiaid second 

.. county and n.o new issue is thereby ^raised ; and becstusp it is 

. 4(^t a sufficient reply to said filftk p-lea." This demurrer was 

■ sustained, and the plaintiffs thea took issue on the, fifth plea. 



^ Ath»m» and ^V^fe. V. AdanJ* • » , 

' ^ L^.j . . ^. . . — .'•'*y» ' • — —^ ■ — **■ 

On the trial, as the bill of exceptions "^ta^e^ "plain^ffs 
offered evidence tending t6 sJiqw that, some time iff the year 
18^8, a convepgatioH oceunre^i betweefe plaiivtiff , aod dtefenidr " 
ant, in whrcli defendant stated to plaintiff, that if he (plaintiff") 
would abandon-tlie U-inging of a then contemplated chancery 
suit against def^ntiant, In favor of his mother, and pi-ocure to 
be made to hini good warranty titles to a tract of land, "which 
had been before that tii»e purchased 'by defendant, and for , 
wh|ph be supposed kis t^tlesf Were ^jot perfect, eontaining.jweii 
liundred and forty acres ; and (-as some of t4ie witnesses stated) 
wcjuld in future 'let bim alone'-, Hdt ' tr«at him properly', then 
1* '•'wonl^ make the wife of pdaintSif; wnO'.was d^fendnnt^ 
daughter,^ '- erpuvl with his other -chiklren-Vor 'equal with his- 
other heirsv in; his estate' ;.a;«*d tliaVin that case, l^er portion 
of the estate would be woi;tli $15,0§0. There was no written 
evidence whatetcr OjP this a*o^^eement. Plainflfife furtli^r o?- ♦ 
ffered «pr«OQ;^ t^pding'to ^fbw jthtit! liiC liad' eojnplietl on his 
par*, ?jay i^baridonrng the bringkig of the^ chanoery suit, and 
geitiiig a warranty deed to the land ; b-ut there was evidence, 
a^so, •totidrBg to shd^- tiiajt pl»iittfffija(i no* ceased to annoy 
and vex (iefsHdant. -•lt'\ft^i\n-tifGr,mpfoof, that defendant's 
esta/tebon»i«ted ©^a large t^act of laijid in Dailu« oo«nty, and 
Ijfc Iarge';iJHm^> of- slaves, and other property. • - 

*V'^"^^u^4his4)iiciQf, tire courtft-harged the jury, ^hat,^ i^- def- 
f^dant's otSate-ceosiitad of lanji'a^wcll aspeVsonalpro|.)erty, . 
tlten,*itiidei^ tlie pleaflings ra 'this case, plaintiffs oouM not r^ 
cover in 4;hts actt<ju ; to» Avftich charge^plai^i tiffs exceptcd.'V.< " 
* AIL^thoruTrngS of tlre'Cou^t above s&t out aPe4i€Wassigned>. 

*■"■.* -r 

Geo* W"; GA-YLjJi fo^the app»liant8 4 /'»• ' - 
1. The cotfr^ below erred in ovtr'rnlifig tire demurrer to 
tlie fifth plea. That pba was ihtendied 5i? an answer to the/ 
seeorid <xjsnt of the efeclaration,*wR?feh sfe^'dut'the fs^eci'al coii»- 
tmct f)efrweert the parties, arid averred afull performahcfe;by 
the plain titfg." 'As a pl^a, then, of cotrfession and avoidance,, 
it is not good, because, if plaintiffs perfol-nied, the statut(^|>f ". 
frauds cftnnoV be pleadedc— Brock v. Codl?, '^ Port. 464^ 
Cifunning's'Ifeirav. Giii's Heir?, 6 Ala.*562 *, Rake's Ad^]3%'- 
V. Pope, 7 i^» 161 ; Waodwa»dv. Smith, i^i li2. 



^16, ^'■'■- ALABAMA. 



Adams and Wife v. Adama 



7rt||i-.Tlie same authorities show that the court erred, also, in 
OYerruIing the demurrer tt> tho sixth plea. This plea should 
^lave alleged, t-hat the contra(it was not to have been per- 
formed in a year and a day. — Chitty on. Contract^, p. 207. , 
V -B- •'There was €rror, also, in sustaining the demurrer to the 
yeplieation 'to the fifth plea <— Authorities §upra. 

4. The charge of the<;ourt was. erroneous ; because, 1st, it 
is justly to W© inferred "from tli£ contract th^t defendant's per* 
-•forTnarice was to be in money, on- property at a valuation, as 
%(5i himself valued the interest ©f a child ^t $15,000 ; and, 2d,- 
because issue was tak^ o» the fifth pl^a, which a,lleged' the 
whole estaite to be in la"ftds, while the proof showed that it 
consisted of lands and negroes : the plaintiffs' side of.the issue . 
was sustained^ and they should have had a verdiot. 

. f J, Ji, Camrbpll and J. W. liApsLET, cow/#-«; 
Ji/The rales of pleading require that a demurrer shall be-viS' 
#ed upon the first error that intervened in the pleadings, and 
Ikerefore^ a demurrer to a plea goes to a defect in the declpra* 
tioD:.- The /second c^unt of tbe declar^ion in this ease i« 
fatally defective : it does net allege a valid cause of action. 
If it be conceded that a sufficient consideration to support a 
promise is alleged, still no sufficient promise is alleged. The 
promise alleged is, •" to give Elizabeth A<lams, daughter of* 
defendant, and wife of plaintiff, a full sliare of his property; 
which was then and there worth. $25,001)." If this promise 
had been proved in the very terms in which it was alleged, •■ 
how could th^ jury render a sensible Txjrdict for the plaintiffs ? 
What is meant by a " full share" ? How many shares were 
there? When, and how*, was the gift to be made? The 
proof, to mak?e out a case for plaintiffs, must ha^e gone be- 
yond the aUegationg of the declaration. Though the Code 
dispenses with thfe formality 6f a common-iciw . declapatioijf 
still the complaint must contain the substance of a common- 
li^w tjeclaration— that is, it must state a complete and valid 
cause of actioji.: — ;Erwin & Wjlliams v. Erwin,..at the last 
tepm. 

But the fifth plea is good- It alleges that the promise re- 
la|;ed to lands and was not in writing. The promise, ther^- • 
foj^, was void uudgr the statute of frauds ; and being abso* 



JANUARY TERM, 1855. 277 

Adaws and Wife v. Adams, . • 

lutely void, plaintiff^s compHoSftce coum not mafee it binding. 
It is unnecessary to cite authorities to sustain this proposition. 

The sixth plea, which alleges that the defendant's promise, 
as set out in the second count, was not to be performed with- 
in one year from the time of the making thereof, and was not 
in writing, is certainly good under the statute of frauds. 
Clay's Digest, p. 254, § 1 ; Code, § 1551. 

The replication to the fifth plea is simply a re-assertion of 
the allegations of the cdmplaint, tiiat plaintiffs had performed 
their part of the agreement. If defendant's promise was void, 
the plaintiffs could not give it validity by any q-ct of theirs. 

The charge of flie court must be constixied in connection 
with the evidence, which would have authorized tlje court to 
instruct the jury that plaintiffs ccjnld not recover: at all. The 
defendant's promise, as proved, was not binding on him'; and 
even if it had been reduced to writing, and signed, no action 
Gould be maintained upon it, — the promiee proved being, to 
make his daughter " equftl with the rest of his childi'en", or 
equal with his other heirs." 'Phe promise, at all events, was 
Toid as to ^e lands ; and a contract void in part, by the 
operation of the statute of frauds, is void in toto. — Loomis v, 
Newhall,.15 Pick, 169 ; Van Alstine v. Wimple, 5 Cowen's 
R. 162. An^peement to procure another to convey land, 
not being in writing, is void.-^Gray v, Patton,'2 B. Mon. 12 ; 
Henley v. Brown, 1 Stew. 144 ; Ghitty on Coutpacts, p, 2(>8, 
note 1, The agj:eemeni of the plaintiffs, therefore,. as well as 
that of defendant, is v«id, and leaves d^efendant's fH"omise 
without congideration. * 

If there was-ewo*, the plaintiffs were no-t injured by it, an3 
therefore this court will not reverse. The whole record 
shows, that plaintiffs are not entitled to recover, ... 

' CHILTON, C, J,— The second count in the complaint 
avers, that, in consideration of the conveyance to the defend- 
ant of all title which Jane Candell had to a certain tract-of 
land, and the abandonment of a contemplated suit in chancery 
by the plaintiff in relation to said land, the defendant prom-., 
ised and agreed to give the plaintiff, Elizabeth Adams, who 
is said defendant's daughter, " a full share of his property, 
which was then and there worth twenty-five thousand dol- 



278 ALABAMA. 



Adams aa^J Wifie v.'Ad«*B!f. 



lats"-; that the plaintiffs di(! aAl they promised to do, aud thfe 
^efendanfwhoHy fiiiled 10 perform. • * ' 

.•■'^The defendant di^ not demur to thii^ count, bi»t filed several 
special pl&is in answer thereto. By ofie'of these (plea No. '5)^ 
the defend^t. says* that 4:h» estrftfe of -the defendant* in the 
»6cond count iH%ntiT>6ed, consisted entirely of lands and real 
estate, and that thftpramise- of /the defendant, if' any Vas 
'teade, as in tlie-secohd couilt is alleged, was-no^in writing, 
jngried' by the defendenlf, or by any* other "person thei'eunio 
lawfully autho'riaed liy 'Mpi. • To thi^ ple^ the plaintifisde!* 

■ ^jurretl,'bu1 the oourt o'^^ruted'theidenuii'rCT'. ' .*:^"' 
'"'The defendant,* by Ris'^si^tli' plea-'to me a^ond cgfent, 
averred tb^t' the promise, if ^ny Vras ifiade, was hof to b* 
performed wifliin a tear ana a day from tkfe timie of making 
it. To this tkere waft'also a demurrer,twmbk Jiie cotirt-ovej?- 

' We tliihk the sectJnd ^Dunt■of the declaratioTi,' or complaint^ 
t"hd both the above pleas, w^re bad — the count, because it 
sets fqrth an iJndertaKingjor contract, tfto iHieertain as t<y the 
part to bef p'erformed by the defisud*Bt| t>« be* executed by thQ 
cou'i^, 5r compensated for in datna<^: ' Tiie defendant was to 
■^fve»1;o Mrs. Adatns, hJs«d'aught5i> "a fuHsliare of lus proper- 
ty, "ifrhich then* apd tlferft'^was*- woi'th-4weat^^Te th9usand 
dollaiV Was the share, 'or the" whoj'flf pr^rty, "worth 
twenty rfiv'e thousand dollars? How wfe ^tj?^*i--'fiSl share" to 

'-"^fe agcertliiflbd'^' ?t is'n'ot.aA*ej'red' tlmt the*Q^ei*dant argteed 
to giVe her lis^ntucW aB^& had 'feevepally- given ftis other chil- 
dren"; or that she should be* entitled tO-share ill hiB»en tire 
Estate in tJie prtjpb'rtion ^diicli* one~jcMld Mf^ *to the' whole 
mimber f>f childVeii ; setting out' the fiisnouiitg -severally giv'en 
to the other childre*, or^he ttumber cif children and- value q^ 
tke entire estate, so as to furnish the data fey ascertaining the 
<lftt«ages.' The 'count; furnidiing^fiji means of ascert^ining'tlte 
full shaj-e; has indefinite: as, if the defendant had agreed' %• 
pajt"'**-^*' 9»m'<yf •mt)nK?y*', withoiitmentiening aify atoo^nt.* The 
Code 36e3 rfet dfgpense with stating a substantial canse df 

• -actiou, in '^ch mjmner ds that, pimafacie, tl\e coutt. shall be 
compet«ti(t to give judgmjent ftu' -ifs .bi'each. W«the plaintiff 
sets out a special contract, which iS so* uncertain as to be in- 

► capable of being enforced, it is void, and his declaration of* 



*ii 



^t 



JANUARY TERM, 18,55. 279 

_ . . :« 

Adtnas and Wife w. Adams. 

complaint would be liable to demurrer, equally Klider the 
Code as before its adoption. ' " . 

*• We do not desire, .however, to be understood as deciding 
that a good count n&,y mot be framed under the contract as 
brought to view in the biH of exceptions.* If the father, for 
a valuable consideration, agreed to make his daughter equal 
1 ki property to Ms oth^r ohtfdren-, — agreed to give her as much 
as he had giveri to his otlier children severally, or agreed to 
^ive her so much as' Would make her share equal to a given 
^portion of his estate, (one-fourth, fifth, or whatever it might 
toe,)" we see no reason why such contract cannot be enforced, 
if, in the conteraplafion of the parties^ they looked to the exe- 
feution of it presenttly upon the execution of that part of the 
c'ofttract to be performed -by the plaintiff as the consideration 
of the defendant's UHdertaking. Nor would it avail the de- 
f^ittlant, that the contract .wag Terlwri merely ; for, although 
his estate may be partly (or even entirely) composed of land) 
yet he may make the plaintiff equal with his other children by 
paying her a sum of money equivalent to the value of the 
property or money severally given to his other children. It 
is clearly, therefore, not a. contract for the sale of lajitl with- 
in the meaning of the statute of frauds. The rule is. that 
where a contract admits of tw() interpretations, one of which 
would destroy, and the ether uphold, it must be so construed 
as that it shall avail ; for the parties intended that it should 
have some operation. 'r • 

But it is supposed that the contract would be obnpxicm^ to 
another sectiort of the statute of frauds and perjuries— to-wit, . 
that it was not to be performed within a yeae^nd a day. To 
this we reply, non constat :~T'r\o time is given for its perform-* 
an,ce ; and the law, in such c^ses, requires that it should be 
performed within a reasonable time. 

In Wells V. Horton, ex'r &c., 4 Bing. R. 40, (S. C. 13 
Eng. C. L. Rep. 332,) A, being indebted to plaintiff, prom- 
ised him (the plaintiff) that in*^onsideration,of his forbearing 
to spe, A's executor should pay him ten thousand pounds ; it 
was held, that this was not a promise required by the statute 
of frnuds to be in writing. Best*, C. J., said, the plain meaning 
of the statute is confinectto contracts, which by agreement are 
not to be carried into execution ^'ithin a year, and does not 



289 ILABAMA. 

Tyu8«tal. >i. De JameUe et al. 

extend to such as may, by circurastaucSs, be postponed- beyood 
that period : otherwise, there is no.contrjtct which might not 
fall within that period. — See Petre v:.*CQmpton, Skin. R. 853 ;^ 
Fenton v. Emblers, 3 Burr. 1278; Miles v. Bouo-h,.3 Ad. & 
Ellis, ^. S. 845 ; (S. C. 43 Eng.-.'C. L. .Rep. 100-1-1010) j 
Rake's Adm'r v. Pope, 7 Ala. 1^1.. 

It i* argued, that the count being Isad, although the pleas 
wei^ bad', we shouH pot reverse, because the court behow 
.should have visited the demurrers upojB Mie count. Coneede 
that the court, mero motu, should liave done so ; yet it did not 
do it. If the demurrer Uad been sustained, and visited upQ« 
the count, the. plaintiff could havo amended., perhaps so a§ to 
have' made his pleading good ; but be WQuld be deprived pf 
this privilege, if we refuse to r-evei«e upon the groun.d tliili 
the count was demurrable. The plaintiff Cannot thus be de- 
prived af the benefit ol-a jadgnjejit respondeas ouster. — Mar- 
shall V. Betner, \1 A,la. 81J2, 

Judgment reversed, aa<f eause remanded. 



TYUS BT. At..*ys.. D'eJ JAI^NETTE et al! 

1. Tbe grla»iplei5^asser^ed in Wh|t» y. Banks, 21 ^la. 705, as to the ijight of 
contriburion among sureties, I'e-affirmed, aad applied to this case. 

2. Complainants and defendant bemg bound as*sMeties for one' S., to wlToin' 
defendant was indebted, S. projfosed to releai^e«def«fcdant from his llaHbilit^ 
-as stirety, by giving a new note with othej suretfes, if defendant would give 
biHua sight draft on his commission raercbaat for *he amount of his indebt- 
edness, ov', if he failed to procure d(^endant's release, that he would then 

. place defendant's notes in the hands of a tBird person to protect him alone 
' against his said suretyship ; and to this arrangement complainants assented : 
Held, that this was an expreeS waiy«f -oq the part of complainants of their 
right id, participate in tlye indemnity. 
8. }3ut the facts that" complainants objected to their principal making an as- 
signmeat for the benefit of his sureties, beo^-iise it would injure his credit, 
and agi'eed that he might pr6c»re the defendant's release from his suretyship, 

, if the latter would pay hini the ftmgun* of hfs individual debt ; and that de- 
fendant then said, in their hearing, that if their principal failed to carry out 
this arrangement for his relief, he should take measures to secure himself,— 
are not sufficieat to establish a waiver on the part- of complaiaants of their 



JANUARY TE^, 1S55. 281 

Tyus et al. v. -Dv JarnefCe et al. 



le§al right to shfti^ in .any iadenvnity or security which ^fendaat might 
obtaia. 
4. ^Yhere a dcc^ee in Chancery, dlsinipsiug a bill as to both of the defendants, 
was reversed on efror, and* the jooihplainants held to be entitled to relief 
against one of Hie defendants, the cbsts of the appellarte court were, appor- 
tioned ; cue half being taxed against the complainants, and the other half 
^.gainst the unsucae^sful defendjvnt. 

Appeal from the Chancery '(-oui't of Montgomery. 
, ip^eard before the Hjon» JajTes B. Clark. 

This bill was fifed by Le\^is Tyus and Henry D. Holmes . 
agaiftst William P. De Jarnotte and James T. De Jarnette ; 
and it% Qljject was, to'obtaitt participaition for the*compJain» 
ants jn certain securities which the defendants had procured 
from one Lewis Simpson, for whom copaplaiimnts and (Jefend- 
ants vere co.-supeties. ^ TUe allegations of the bill^ irj sub- 
stance, arQ as follows : That* on the 29tb ^pril, 1843, coiia- , 
pkinanis ai^d defenciants becaiue suretras for Lewis Simpson^,: 
op two promissory notes, for ^381,8 58 each, payabr© to oo** 
Joshi^j Hightower ; tlia;t judgment T^as recovered on said 
notes,, against all the parties ^hereto, irt the fall of 1847;- that 
Lewis.Simpson, at tke time of the rendition of said jadgment 
and for soipe time previous, was insoU-^nt, and paid i;io part ,--■ 
of said judgmeni ; and that said judgment was paid by com-w 
plainants and defendants, each paying one-fourth. 

The bill further alleges, that, at the time the parties thus 
became "sureties for said Simpson, ^pach of the defend^its was 
indebted to said Simpson ; that Simpson informed Complain- 
ants of that fact' before they signed ^id notes, and promised 
thegi, in order to induce theiji t^ becojne sureties for him, that 
thp amounts due from the defendants to him should be set 
apaj't and applied, ^ro tanto, to the payment and satisfaction 
of said security (Jebt, oi: sl^ould gtaad as collateral security 
for its payment; that Simpson ijiformed defendants, before they 
signed said notes, of this promise which he ha^ made to com- 
plainants, and. on this understanding defendants signed said 
notes ; that on the 20th July,'l844, said James T-. De Jarnette 
and Simpson had a settlement of thei? accounts, and said De 
Jarnette was found indebted to Simpson individually iu the 
sum of $292 14^ aad to the firm of Sioipson & Hightower in 



m ALABAMA. 

Tyus et'&\. v. Bfe Jarnette et al. 

' " ' • ■ -r- ■ — ■ '■ ' 

thBsum of 1905 47, for each of which siims^aid De Jarnette 
executed his promissory note ; thjit said James X- Be Jarnette 
was atso largely indebted. to the:firniof Simpson &, McBride, 
and on a settlement of accounts, "with Simpson on the 2d 
March, 184T, was found indebted tO them in the sum of $159 
"88, for which sura he also executed to th^tfi* his promisscfry 
note ; that on the 22d December, 18^6, said Simpson and 
William P. De Jarnette had a settlement of their 'accounts, 
and'Said De Jarnette was 'then found Indebted to "Simpson in 
the sura of $1420 30, for whickhe executed to s^id Simpson 
iti&'pT*on^issory ntrte. • * • 

••*^ie. bill further alleges, that in ^"^ebruary^ 1847, -lUl^ de- 
feia^hts,Tjy*some meah^ unkfiowii to complainants, amfwlth- 
Oflft their knowledge or consent, induoed said Simpson to place 
the*^^ea which Tie held on them in tjie hands of E. G*. CareV, 
W. W. Jekckson, and J*ohn- Gglsofi,' i«r* tbe* especial Benefit 
'i^iad' protection dl the said defendants 'against their liaWlity 
as. sureties for him,''^" saying t5 said X^^rew, Jackson and 
't}okt)n'"that he gave-iip iothAn nil claim or titlc^e held in 
■ these' no'fes, and tha* they shK^iiM ^livt^- them- td" the said 
Wm. P; and Jarae^ T. De JansettCj iK)' eath his own- note, 
•v^'hen'tliey arranged their propoTtionlal parts o^ said security 
deT)t to Hightower'^; tliat after the defendants paiG thdr res- 
pective proportions of the said jndgm^bt, as above S^tated, 
they called on Oar ew-,* Jackson and Golson, and receivVd h*bm 
them' their said note^, 'which had -been deposited with them 
by sai(>Simf)Son as aforessfid, and1:ha>t they iTave disposed of 
said notes'aiid converted ijiem, 'to theii'' own ^ use. Cbmplain- 
arits insist, that tfiey are eiifttled, by r5a!!*on of their being co- 
sureties with defendants, t<5 tha're in the partial indenmity 
afforded by these notes; .and they' therefere pray f^r an ap- 
count of the proceeds o^^^aid notes, to be apportioned equally 
amongthemselves and tti'e defendants, a'nd for general relief. 
-The dfefehddnts answered sepavat^eh*, birt their answej-s are 
substantially the §ame. They aStHit,* that they became co- 
Sureties with complainants for ^ald 9irapS«o,'on Iiis notes to 
Hightower f that judgment Was afterwai-dS recovered on thes© 
tolcs again*?t all the thakeps, acd'that this judgment was p*id 
as charged In the bill ; tli^t Sinipsoh Vras insolvent, and paiS 
no part of said judgment | thatvlhej^ were indebted to 8imj^ 



JANUARY TERM, 1855. , 283 

— . . 1 ^ .^ _ i . — : , — V 

Tyus et al, v." De Jara'«tte et al. 

son at the time tlijey" became sui*eties for-him, aud that they 
afterwards had a settlement of their accomits with him, and 
gave lym their notes for the balance foi>nd against thenv; that 
these notes yyere afteVw«,rds depoijitedl)y Si-mpson with Ca- 
rew and others,' for the- separate indemnity of defendants 
against the,ir li'ability as sureties for hina, and that they recei\:ed 
tb\3se notea,, as Qharged in the bill, -ekiOier they-hadpajd their 
respective portions of said judgment. They dei»y that Simp- 
son ever promised, complainairts, as alleged in the bill, that 
th^ amount of thek indfibt^dncss to him sheuld-beapi^lied to- 
wards the payment of said security debt, or should stand as 
collatQi-al ^equrity. for its payniencfc;.^a<J allege, that if any 
such promise was made by Simpson, they never had any 
knowledge or notice of it, until loi^g after their notes, which 
Simpson had deposited wi tit Carew-and others, had been de- 
livered up. to them. They allege, tliat Simpson, at the time 
be requested the^ to become sureties for him oa his nortes to 
HigIitow«r, promised thenf that he would not call on the'm *to 
pay tlie amount of thei-r indebtedness to him until the last pne 
of his n^tes to. said Higlitower fdi due, and that thfeir ind^t- 
edness to Inm shouM stand as a se'pai'ate indemnity for .^leip 
^ga^ust 'liability on the uotes to Hightewer. •*»; >**. '.. 

Tlje3% allege, a^o,;thai some time. after they had. become 
sureties for said Simpson, they became uneasy about their lia- 
bility onJ»^ account, and'T^n•intel^^^ifi\*on the subject was had 
between complainants, SjmpoiQn, and James T. De Jarjiette, 
(the latter 5,ctiBg for Irimself and his c^-deieudant,) at Simp- 
son's store; that Sina^jsou told tkem'at this interview that hp 
\?;as fully able to pay said notes to Hightowrer, and tivat thec>e 
was no danger to^ be gk^Dpj-ehended by then? ; that comjjtain- 
ants, upon this iniermalion being givgn, objected to Simpson's 
making an assignmejit to ^eeure thj^m, because It would injure 
his credit, aad said that they were not uneasy ;. that James 
T. De Jarnette stated tWt li« was uneasy about his liability, 
and insisted thats Sin^psoin •ebould eith^ .secure him and his 
co-defendant, or should relddse them from their liability on 
tlie notes ; that Simpson then proposed to release defendants 
from their liability on his notes; by giving new aotes with 
other sureties in their stead, if they would give him a sigltt 
draft on their copbmissiqji^.n^reh^j^t m M^obileJ^r tJi#!^agipw^ 



m ALABAMA*. 



TyHB et al. v. De Janiette et al. 



of their indebtedness to him, and that, if he failed to procure 
their release, he would then deliver up to them, for tliteir sep; 
arato iademnity and pl-otection, the notes -Which he held on 
them; that complainants -assented to this arrangement, and 
that J^mes T. De Jarnette accepted it on Lehalf of his ca-de- 
feiadant-and himself; thait Simpson faiJed to procure defend- 
9,nt5' release from liabiMty on the notes within the specified 
time, and afterwards deposited- the notes which he held on 
them with Carew and others, fn pufsuanca of said agreement, 
for their separate proijection against liability on Ms notes.. 
Thpy insist that they had a perfeclr right tjlius to aecure therti- 
selve's, and that compiaiiiEOats hSve no claim on j;hem for con- 
tribution. 'W'tir:;--.- ■ ^j fti V • .^*^- . . ';;:s- 
Simpson, who was exftpiteeiJ as a witness* by bothffSrtM, 
testified, " that he did iwt promise-coJnplainants thalrthe'notes 
of said defendants shonid sta»d as collateral security fpr tell 
the sureties on th^ notes to Hightower, but r«oollec|s that h6 
told complainarlts, in -a (Conversation had with each one sepa- 
rately, that defendants would owei^ia about ^5,000, and that 
Helmes "would owe him upwards of $40(?, antl that they were 
•all to be indulged until the last note fell due of the High- 
towel" debt ; that tiiis'conversfttion ffg.S'had before th'eootes 
were signed, and that the defendants did not know of said 
oonversation." He gives the following account of the inter- 
view between the parMes*a1; his SlofQ : " That complainants 
and defendant James T. Dc Jai*nette met at his store in Ver- 
non to make some arrangement to have themselves indemni- 
fied on account of tjieir liability crti sai<i'notes to Hightower ; 
that he does not recollect having«made any definite statement 
to fbem of the conditign of his aftaire ; that he made a pro- 
position to them, that if said defendants would pay their lio- 
MM ties to him, he would release them from the notes to Higtr 
tower, and would get other names instead t)f theirs to go on 
said notes with complainants, and thus reduce tfae liability of 
each of the complainants on said rwtes to abou,t $800 ; that 
he was to have- fom- -or five weel^stb effect this arrangeirtent ; 
that all parties assented to this proposition, and complainants 
expressed*- themselves better satisfied with this arrangement 
than they would be with an assignTneut ; that said James T. 
De Jarnette then said, in the presence of cookplaiDfants, that if 



JANUARY TERM, 1855. 28§; 

Tyiis et al. v. De Jarnette et al. 

___ — . _— .^P 

tbis arrangement could not be tjaVried into effect, then Be* 
would take measures to have himself ^cured; that he ok- 
pressed liimself uneasy about his own and hi^ brother's liabil- 
ity oa the notes to' High tower, to which complainant Holmes 
replied, that he did not feel uneasy." ■ - 

James T. De Jarnette was examined as' »■ witness for his, co- 
defendant, and testified to the same facts, in relation to what 
occurred at -the interview between the parties at Simpson's 

^ store, which he had stated in his answer.. 

Carew was also examined as a witness* by the defcndante, 
and proved the conditions on which he- received their notes 
from Simpson, and subsequently, delivered them <h. th^ per- 

• Iformance of those conditions. ' 

On linal hearing, on bill, answer^, an(J probfs, the chancel- 
lor dismissed the bill ; and his decree is now as'^gned for 
error. « 

T. Willi AMSf lor tie appellants : 

1. It is not necfessary to make the principal debtor a party, 
when he is insolvent ; nor to mak& an insolvepit co-surety a 
p^ty.— Couch v< Terty's AdiH'rs, 12 Ala. 2^26. 

5. A surety, who- pays the delDt" of his principal, is not en- 
i;itled to contribution from his oo-surety, when he owes the 
principal' debtor moi-e'than* he paid as surety .--Fitzpatrick r. 
Hill, 9 Ala. 783; BezzellV. White, 13 ib. 422,. 

3. Bnt a surety is entitled to the benefit of all securities, or 
liens, taken by the pfiiacipal creditor. — Brown v. Lang, 4 ib'50. 
■> 4. So, also, a sttrety is entitled to share with his fco-surety 
in all securities and' liehs which he may obtain from the prinr 
cipal debtor. — Fagan v. Jaeock, 4- "Dev. 263. The case of 
Moore V. Moore, 4 Hawks 358, is on the express ground, that 
the co-sureties 'had nort engaged in the same common risk. — 
Oregory v.-Murrell, 2 Ired. Eq. '233 ; Kerns v. Chambers, B 
ib. 576 ;. Hail v, Robinson, 8 'Ired. L. 56 f Bachelder t. Fisfc, 
IT- Mass. 464; I^ow v. ^msp't, 5 N'. H. 353. 
■'■*^. A principal and a co-surety cannot make any contract 
or agreement for the benefit of one co-surety, to the prejudice 
of another. — Hall v. Robin^dn, 8 tfed. L. 60. And therefore, 
where one co-surety, after having paid hia share of the prin- 
cipal debt, Sues the principal in his own name, and recovers, 



*1 



386 ALABAMA. '*^:- 

Z. .— v-r ■ ■ * ' ' ■ 

Tyus ^t al. v. De Jarnotte et al. 

his co-surety ie entitled to COfitribution in the amount obtained ^ 
on that recovery .^noolittle a-. Dwight, 2 Mete. 561. 
!>.' The debts* due from the De Jarnettes to the principal," 

: 4ebtefr were duti and owing at the time^e parties met, in- 
order to g6t security from Simpson, to-wit,'iu February, 1846; 
and as such the eom^Aainants had an existing equity in having 
those debts applied to the general discnafge of the sureties. 
No agreement by th^tn to surrender this right or equity to the 
De Jarnettes, without consideratioft; was binding ; and it is 
not pretended th'at any consideration . passed between the 
patties* * .?- . '^'..i- : - ■ .-;'•• "* V' •'. *»*.'^ 

, 7. TTieife never cbultl liarQ IJ^en the agreement pret'eft(^' 
by the defendants ; "for the time when the agreement is said 
to have' been maSile wgis prior t© the date of the note^ in ©e- 
ceaiberi 1^46. • • ' *»• 

8. But there is no such proof as to James ^. De Jarnett^, 
and no equity passed to Ijim by aj^ assent for Wm. P. ©e 

. Jarnette's benrlit, if any such*asseht was gjvni.- 

•9. If defendants had» paid th-e-whole^debt, and filed their 
Vili foi:«0Qtpi4)ntiati, Hoim^s ajidXTyu^ woi^ld oj^tre required 
to contribute a pycjrtiou of the excese above the amount of tiieir 
i;jdebtedness t^t^hluipson.— B^zoll v.- White, IS^la.* 422. 
,' 10^ Therekis no "eWde.i|ee tha^ Sifm^o» fead" the power -to 
aecui^ by maKi«g<aii assigna»^t ^ 119 proof «f ^Tliat he.had to 
assign. ■ . ' . ' ,.^.,''i • • . ,;: 

.,¥., Harris, contra:- .v'*^^ / ,^.* ^ ".* '!' - -t^' V*^.- 

■ ; 1. Th« agre'ejneBt uikder wWeh -Hie BOt0gT)f ilbe"apl3(ellfees 

were placed -in the han<is of Garew a«<>.otliers was not a 

•transfer of the KQ-tm as eollateral* eecuri.ty;; "^ vjte |ky»agree- 

'mcjit on, the part of Simj)aoB, t>ve pr>ficipftl debtor^tb repay to 

the appellees the aiK)uiit ih^y irnglit pay fot him in a particu- 

', 'feir manner .i It'^cl^f tlmt a debtoi* Ifas the righ^ to*pi'cfer 

one creditor to ano^j.er.' Tiie ftppeilapts afid appelleos,. tlie 

very moment they paid th^iv respective proportipns of t4ie 

■^bt"for which tlfey wQre boun d 4b^ Sim ipj^ou, became -Cr.€arli tors 

to the extent of their respeciivc paymente.'an.d Simpson had 

tho right to repay aijy one Of tliem the amount of his paytncnt: 

a«d if.such repayment was i?ia4e fojr this ex«l«ske benefit Tof 

ihe surety to wJjoHa irt was caajde, tJvi other, corsureties had iia 



f.>.-. 



JAirUARY TEEM, 1855. 28T 



TyH8 et al. V. Do Jaiuette'et »1. *▼ 



,claim'wljat<5ter tipon'hlm-foc conkibution. If Simpson had * 

retained in his possession tlie notes of the appell'ees until they 

• had paid the amomit for t\'-hich they were bound as his sure- 
ties, and then delivered to each one his notC fti ^-opayment ©f . 
the sum so paid by him, it •is clear Uiat the appellants wouk^' •. # 
have had no right whatever to call on the appellees for anys'** » ; 
pai:t of this amount; and thi^ being. so, does the fact that "«, , 
Simpson, par ted with the possession of t\ie notes befare the , . » 

4^inoney was actually paid by the. appellees, and directed the 
fiersojps to whom they were delivered to deliver thein^o the - r 

appellees respectivelj' when they ^lould have^paid their pro- ' ^ 
portions of the security debt, change the principle, a4l give the 
appellants a claim in equity against the appellees which they 
Fould not have had if Simpswi had, retain^ the notes uritil 
the debt was actually paid? N^o reasoais perceive(^^wliy the " .4 
principle should^ be different i-n the two cases. If the appelr '* ^^ 
.lees had paid Simpson l^ie amount of their indebjjedness to ^ 

him, and'he had retj^iaed the ;ttiOHey UB'til after they'bad'^jjaid 

! their respective proportions of thQ iJebt for which they were ^ 

. bound- as hie sureties, and then paid it batlj: to thepi in rejiaf*'-' 
menjtxif thS ajnount^sn^ijck tkey- ha5^pa>d fQr.lfim, 4lie ai»pel- 
lant^'certainly cogld not havacallectojj tlieuffor contribution •.«^ 
How, tlien, ca'u'it be insisted, that t^ause. the appellees gav* .- 
Simpson their «o1,e3-ft>ii» the amount of tiiatir jm'debtedness to 

' him, and he placed these notes in th€ hands of others, to be 
<Jclivered back-to theiB when* the^ paid their respective ppr- 
tion's of the ^e«<irity jd^bt, — that there|ere,ilie appellants* attS '-^ 
entitled to oontri^ution in these notes'? 

2< [The ri^it of^ooatritvution amon^ sureties doe^ not de- 
pend on any implied*<3ontr^ct, but i^ the' resuifbf an acknowl- 
edge principle of natural justice, -(^hicli. requjres-that thps#' " ' 
who voluntarily assume ii common burd^. should bear it Mt'"' 
^qual proportiaftt.-'-*WhitQ V'. Banks,. 21 Ala., 705^ W'h«^>"-.' 
fever, therefore, in any case, a fact or cii'cumstance'cxietgf 
whidi- would ren(Jer itjwpquital^leor ujnjust for one surety to 
fcall on anot-jier for oontFJbution, the xight to oonlribution does 
not exist ; and whenever the *ight of contributiow doea not 
exist, the person deprived of it can haVe no claim upoji any 
collateral security which a -cS-surety may have obtained fdr 
his own indemnity. The cases of W^t^v. Banks, yu^^ 






'^i 



* • 



JlfK^ • V ALABAMA.^ 

•* Tyus^t aL v. De Jaraette et al. 



>inp8on V. Adame,. 1 'Fceemau's- Cli. R. 228, and Moone v. 

• }ioore, 4 Hasvks 353, show, in wtuit cases a surety has no right 

to participate in a collateral security received by hjs €0-surety. 

» Bven suppoeija^that the appeHees' notes, were placed in Ca- 

' ..'^W's han<ls as collater^rl security only, tlie , appellajits, by 

• * -their conduct, have lost all-right to pardcipation in that fund. 
.♦- In fact, they may be- justly considered as having assented to 

• . the potes t)eing placed in.^a?gw's!*hands -fol" the appeHees' 
, • "^ s<Jle benefit. It would be inequitable and unjust, after the 
'appellants had prevented the pi'in'cipal debtor from making 
'a an assignment which woulfl ha^fe protected all his sureties, to 
allow thelfe now to eorae in and participate in a fund which 
the appellees have secured f«f themselves by tlieir own ex- 
ertions. % ^- . . « 
3. The agreement between Simpson and -th'e appellees, made 
w* at fhd, time they became hi| suretiee, whieb^is set vp iu the 
answers-, £^d fully establTsheidrby the testimony of Simpson, 
.' show^ that the appellees' indebtedness to him should be a fund 
•' ,' 'for their indemnity against liability for him, and comes within 
. ■ th^ principle of Mc/bre v. -Moore, supra, ^ny t>ne, on becom- 
,, '.ing -surety foi* another,* kiaj stipulate tor a-sepaMte 'indem- 
- ■ Bity ; or, aftef Keeomitig bo*und, sureties' ijiay rejiounee* all 

• •: 'benefit in a secm-ity r^g^ed. by a co-surety.^tiong v, Bar- 
.". :;:iDflitit, a'lred.'Eq.-e^l. lElhe Case of fJoolittle v.-Dwiglitj 2 

■ ••■• 'Ifetealf, cited by«appellants' counsel, dceahot decide Micprin- 

• •• tSp^ eontettded for : the ricovery in -tfial "fcaBe -was upon a- 
-V' ^rft caixse of aotioii fpr bt)lh suretie8.-T-pvi[^ft^ ►• *» • 

. •-• , * * •■ -^ '■ '■• 

' GGLQTHWAITBf J.— In-White vvB^feks,^! Ala, 705, 

welield, that fhv right di contriJ^Hticm'^rnQng* stH*eties /was 

' ' ■ ttot founded on contract,- but was the result of a "general equity 

■. -'JoiL the- ground of#iuaHty of burden an<i benefit; and this 

.'"'"•^e^lf, a* it. is based alone on the duties «f tf e parties e^rising 

' ■'■ Jfcom the pecnMar^ituation they bccupy to each other, is not 

affected by any agreement oj? arrangement «pade by one.1\ith 

' ^ •toe'principal for his individual benefit, during tjie existence 

of" that relations- Hence, the rhere fact that indBinuitr was 

obtained by one snre'ty, upon anunderstanSing with theprin- 

cif)al creditor that It should be used solely for his protection, 

. vottl4jQot prevent his companions from sharing in it on equi' 



fA^ 



■^ JANUARY TERM, 1855. ^^^ • 



Tyus et al. v. De Jarnette et al. •! 

tabic terms. We held, however, in the same case, that *as 
this rule was founded on principles of "natural justice, courts 
would not enforce it when the circumstances of the case ren- 
deredjts application inequitable. , * 

Applying this doctrine to the present case, the only ques- 
tion is, whether such a state of^fapts is made out by thc» 
evidence, as should take it but of th« general rule' and bring 
^it withth the exception. The answers deny that the debts 
which were received by the appellees as separate indemnity, 
were to be held, as collateral security for the principal debt ;. 
and the evidence of the witness Simpson shows, we think, 
very clearly, that there, was no such agreement. James T. 
De Jarnette, who was examined as a wilaaess on the part df 
the appellee Wm. P. De Jarnette, states that, after the parties 
had become sureties, the principal debtor told him, that h.# 
had promised Wm. P. De Jarnette that the amount owing by 
him (about fourteen hundred dollars) should be held as col- ' 
lateral security until the principal debt was due ; and if Wil- 
liam P. De Jarnette had anything to pay, it would not exceed, 
that amount. Conceding for argument's sake the competen- 
cy of this testimony, it certainly does not tend to establish 
any agreement, or understanding,. that the other sureties were 
to look- to this debt, as indBmuity for themselves. If any- 
thing, it tends to prove that, if Wm. P. De Jarnette paid, as 
surety, the ainount of his indebtedness to Simpson, he could, 
as that. debt was. to be indulged until the principal debt fell 
due, look to it to reimburse himself. There is no evidence 
tending to establish the charge that the debts owing by the 
appellees were agreed to be h^Ld -as .security for the benefit of 
all ; and as the testimony clearly establishes they were' re- 
ceived by- the appellees as the separate^demnity of each, the 
.tKttly questroii, as W^ have said, is, whether Jinder ^the circum- 
stanc'es the appellants arc entitled to share in them. As to 
Wra. P. De Jarnette, it is shown dearly, 4;hat the appellants 
consented, that JC Simpson failed to 'make the arrangement 
proposed by him, and assented to hf aTl the parties, then ht 
jnight receive his own notes for his separate indemnity. This 
N^as an express -wa,iver„ on the part of his.'cd-sureties, of tjieir 
right to participate in such indemnity, and we must hold 
them bound by it. , If it jrere ©otherwise) a i^ari^r ^migH be 

■' . . :•• - • ■; *•■ • .;■•>'. .. '';-V„ .*.. 



^ '<* lljua et-al, ▼. De Jarnette et °al. 

* lulled into a false sense of safety by the act of his companions, 
-aud tlius be prevented /rom effectually protecting himself by 

. obtaining. additionstl security. There are many caseg in which 
^ an equity can be waived or discharged by parol (Walker y. 
Walker, 2 Atk. 93 ; Lake v. Lalie, Amb. 126 ; Roe v. Pop- 
ham, Doug. 24 ; Price y. J)yef, 17 Yes. 356) ; and thq same 
principles "of natural justice, which create the equity of con- 
tribution between co-sureties, -wbuld discharge it, when the. 
parties themselves expressly consented to ■^aive it. . * 

As to the other party, James T. De Jarnette, there is more 
difficulty, ^he just application of the principles we have 
just asserted •requir.es, that the waiver of a surety to his right 
of contribution should be fully and clearly established by the 
.^i^ence ; and our first . impression was, that the testimony 

fj^s sufficient on this point as to both of -tiie appellees ; but 
B^oi^e mature consideration ha^ satisfied us, that our conclusion 

• ifl, this respect was wrong, and that sfe to James T. De Jar- 
nette the facts established by Simpson, who is the only witness 
so fp as he is concerned, dp. not prove a waiyer of their ' 

' equity on the part of the appellants. That the appellants 
were opposed to Simpson's making an assignment for the 
protection pf all the parti^,* for the* reason that it would in- 
jure his credit, is j^n titled to no weight upon tlie question we 
are now discussing. It tends to show that they, were not so 
much alaroied as to liheir situation as the .other pp,rty, aHd 

■ not so eager |.o obtain indemnity ; but it cannot be fairly re- 
gari^ed as a;iy evidence of an intention on their part to relin- 
quish' r^gkts to ti^ljich»they» wese- by law entk^,— tho'morc 
especially as another, proposition was mad«,'to which they alt 
consented^ and which left the relative equities of all precisely 
as they were. , Inde|^ndently of this evidenoe, t^ only fact 
w.e can look to,' as e^^en .tending to establish the- waiyer, is, 
that the appellants made no objection, when.Jatnes T. De 
Jarnette ^ai,d, in their hearing, that if Simpspn-failed to carVy. 
"(jait the arrangement which w-as to relieve him, he should take 

^measures to secure Irimself, and that .'when he . expressed his 
uneasiness ^s tq his situation, Holmes replied, thai he did not 
■fee^uneagy. .Tins' js n»t enough to satisfy. u» clearly ,th&t the 
appellants intended to waive any of their legal rights. There 
js qo:^ro|)OHtiou of this kind madQ., What was said amounts 



' ■ ■ ;* JANUARY TERM, 1855. 291 

Tyus et al. v. De Jarnette et al. 

to nothing more than a meTe declaration of intention on the 
part of one surety, in a certain event, to secure himself, 
made, apparently, without reference to the assent or dissent 
of his companions, and not naturally calling for an answer 
from them. Indeed it does not even appear tliat the remark 
was addressed to them. 

,I<t is most probable,' we -^gree, that \Sy this declaration he 
intended to express his intention of obtaining separate indem- 
nity, and the other -parties may have so undersJ;Qod him ; but 
we cannot 'say this, speaking from*tlt^. teslfiito¥y alon^^ -with 
any degree of certainty. They may have supposed that he 
intended to secure himself by obtaining full indemnity for this 
debt. The rule irf rdatjoh to admissions, to be inferred from 
acquiescence in the verbal statements of oth6rs, should be ap- 
pliied with great caution ; "and it' must plainly appear tjiat^ 
the lajiguage' was fuUy und'erstood by the party, before any 
i6ference>cari be drawn from his {)assiveness- or silence, and 
must be such as would properly and naturally call froin him 
some reply." — Greenl. Ev. §§ 197, 199. We have found no 
oase which has gone so far as to interpret mere silence, or 
^uch an answer as was given by Holifnefe, in-a case like the 
present, into a consent to give up a right, and should regard 
it as unsafe and dangerous to establish sucli a precedent. Our 
conclusion is, tha^jthe evidence fails to establish any dischg^Tge 
of the equity of the complainants below as to the indjem- 
nity received -by James T. De Jarn^ttQ, and- in that they .ihust 
be allowed to participate. ; * - . • 

The decree must be reversed, "ahd * the -cause, remknded. 

Bui; as to the. costs m this court, && the decree has b^en-im- 

•peached as to Wm. P. De Jarnette, we think it right that the 

appellants, as they have failed in the grpund taken in respect 

-to Mm, should pay half tfie costs ; the other- half miist b6 taxed 

against James T;.DeJarnetttt' ■. *' S* 

» ' » ., ' 



•*^»'>ii^> 



S92 fc^'? ALABAMA. 



^"\ "H Blevins, adm'r, v. Buck et al. 

m* »< * ^ 



>^c ■■ feL^ymS, Adm'r, &c., vs. BUCK et a^ 

1. The act of 1846, " to protect the rights of married women," (Pamphlet Acts 
. 1845-6, p. 23.) does not, of itself, and without any act on the part of the 
■^^ wife, destroy her right to a settlement out of her choses in action and equi- 
;ll4able interests as it existed beforc the adoption of that act ; but the intention 
•l^'iftf the act was, to tender to her what was supposed to be a more valuable 
, ■ jAjright, and to leave it to her election to claim the benefit of the act, or to assert 
iher equity to a settlement without regard to its provisions. 
^. After the rendition of a final decree, on a bill filed under this act, vesting 
the property in a trustee for the sole and separate use, support and main- 
tenance of the wife and her family, the wife may, during coverture, create a 
*' charge upon the property, which may be enfoi-ced by a bill filed after her 
^^* death, and by, a sal&of the, entire property, if necessary, jander a decree of 
^^ the coui't. « ■ "■ . 

3. The wife's children are not necessary parties to a bill, filed after her death, 
to subject personal property settled under the provisions of this act to the 
payment of a charge upon it created by her during coverture. 

4. When a note Under seal is executed by husband and wife, and is transferred 
'• *'for valuable consideration by delivery merely, the transferror and transferree 

may join in a bill to enforce its payment out of the wife's separate estate 
upon which it is .A charge. 

.^;% Appeal from the Chancery Court of DaJlas. 
*. ■>.>.. Heard before the Hon. James B. Clark. 
^■•.^,. 

•^^.This bill was filed in April, 1852, by Daniel Buck and S. 
■ D. Hale against the appellant, as the administrator of Mrs. 
Margaret X). Btevins, deceaseds it alleges that in March, 
1846, Mrs. Blevins, who was then the wife of John Blevins, 
filed her bill in Uie Chancery Court at Huntsville against her 
husband and the administrators of John Connally, deceased-, 
who was her father ; that said bill was filed under the pro- 
visions of the act of February 4, 1846, entitled "an act to 
protect the rights of married women," and its object was, to 
have settled upon said complainant, for her sole and separate 
use and benefit, her distributive sh^e of her father's estate, 
which was. then in the hands of his administrators, his estate 
not haviirg been settled ; that a decree was afterwards ren- 
dered in said suit in favor of complainant, " the legal effect 
of which decree was, as complainants are advised, to settle 



♦ '' 



V 

JANUARY TEUU, 1855. 293 

Blevins, adm'r, v. Buck et al. 



the dtBtribotive share of said' JVIargaret 0, Blevins hi lier 
father's-estate to her sole "and sepai-ate use, and as her sole 
and separate estate"; that under and by virtue of said decree 
Mrs. Blevins received a number of slaved, and other property 
of great value ; that after she iiad come into the ]X)ssession of 
this property, she and her said husband executed their 
promissory note, under seal, for $1345, to complainant, Buck, 
'who afterwards sold and transferred the same to his- co-com- 
plainant Hale ; that the principal ground upon which said 
bill was filed by Mrs. Blevins, and said decree thereon ren- 
dered by the chancellor, was the insolvency of said John 
Blevins ; that he continued insolvent from that time until his 
death, which occurred in the sprang of the year 1851, and was 
insolvent at the time he signed said note with his wife ; " that 
the legaJ effect of said writing obligatory was, to bind the 
said separate estate of the said Margaret 0. Blevins for its 
payment, and complainants aver that said sep&rate estate was 
and is liable for itfe payment. The bill further alleges, .that 
Mrs. Blevins died in September, 1849, intestate, leaving sev- 
eral children, aad that the defendant has been duly appointed 
axiministrator of her estate. 

4 A transcript of the proceedings had in said suit in the 
CJiancery Court at Huntsville, on the bill filed by Mr^. Blevins, 
is made an exhibit to the bill. The decree in that suit is in 
the following words : " It is ordered, adjudged, and decreed, 
that the share of Margaret' 0. Blevins iq the estate of her 
fether, John Connally, deceased, be,' and the same is hereby 
vested in Rodah Horton, as trustee, for her sole and separate 
uSe and support, and the support and maintenance of her 
family ; and that the administrators of said estate now 
acting, and all others who may be hereafter appointed, be 
enjoined and restrained from paying over such portion, or 
any part thereof, when ascertained, to any other person what- 
soever." . t 
The trustee named in the decree having died, James Wv" 
Mc Clung was afterwards appointed trustee in his stead by a 
decree of said Chancery Court at Huntsville ; and he also 
having departed this life before the filing of thi« bill, his 
executors were made defendants, and decrees pro confesso 
were taken against them. 



294 ALABAMA. 



Blevins, adm'r. V Buck et al. 



The administrator of Mrs. Blevins answered the bill, ad- 
mitting all its material allegations, but denying that said 
promissory note created any charge on her separate estate ; 
and he demurred to the bill for want of equity. 

The chancellor decreed in favor of the complainants, and 
overruled the demurrer to the bill ; "and his decree is now 
assigned for error. 

■;$ii»rWM; M- MuRPHY and Thos. J. Jupge, for appellant: 

1. A« to the question of jurisdiction : The bill states that 
Mrs. Blevins, in her lifetime, held the property now in the de- 
ffedant's hands as her sole and separate estate ; that she is 
<aEed;d,'attd that defendant is her administrator ; and that her 
■^"usband "and the trustee are both dead. .Upon these facts, 
the defendant should have been sued at common law, and 
e(jmty has n9 jurisdiction. — Vance v. Wells & Co., 8 Ala. 399; 
1*66 V. Muggeridge, 5 Taunt. 37. 
. i:2. 3i].ck should not have been made* a party complainant., 
Bf- flaie is a bona fide assignee, and the assignment was abso^ 
ltite,-as stated in the bill, bath of them ai^e not entitled to a 

, decree. — Wilkins v. Judge, 14 Ala. 135; Haixiemanv. Sim5, 

^. 747; Story's Eq. PL §392; (Sl^rkson v. DePeyster,'a 

•_I^ge-336 ; 2 Sim. R. 237; Trecothick v. Austin, 4 Mason's 

tt. 16 ; Field v. Maghee, 5 ib. 539; Sadler v. Houston, 4 

Port; 208. • • 

3. The separate property, secured to Mrs. Blevins by the 
decree of the Chancery Court at Huhtsrille, was for the sup- , 

• port and maintenance of her children and family as well as 
herself, and therefore was not subject to her separate contracts. 
The interest of the mother and her children, being collective, 
catihbt be divested. — Inge v. Forrester, 6 Ala. 418; Fellows, 
Wadsworth & Ca. v. Tann, 9 ib. 999.-. Mrs. Blevins^ could 
not charge this property with liabilities contracted by her a* 
the surety, of her husband. She held the property for a par- 
tiJJular' purpose— rDot only for her own support, but' equally 
"for the support and maintenance of hfer family." This is 
the language of the statute, and also of the decree. The 
trustee holds for distinct purposes, equally imposing. The 
words "" sole and separate use " are used in the statute to ex- 
Qbide. the husband's marital rights ; but there is a common 



JANUARY TERM, 1855. M 

Blevins, adm'r, v. Buck et al. 

usufructuary interest for her and her family. The principle 
on which the wife charges her separate estate, is, that she has 
the same control over it that she would have if slie were sole — 
that is, an absolute control. But under this statute, as the 
chancellor admits in his decree, she has not the right of absO' 
lute disposition. — Spear v. Walkley, 10 Ala. 328-; Rugelj^ v; 
Robinson, ib. 702. • ' ■' 

4. The act of 1846 settles the property upon the wife and 
children in precisely the same manner that a decree irl chan- 
cery would have settled it upon them, if a bill had beeii filed 
for that purpose ; and the act provides, in case of intestacy, 
that the property shall descend in precisely the same naanner 
in which it would have descended if it had been settled upon 
them by a decree in equity — that is, the separate and several 
interest of each to the next of kin of each. The act,, then, 
being cumulative merely, the children have the same interest 
vested in them by it that woald have vested by bill. That 
interest is a vested right, unless the wife expressly dissents 
from- their taking anything ; and here, the wife, taking under 
the act, has not dissented. The children, therefore, have a 
vested right, which cannot be appropriated to their mother's 
debts : • her interest only can be thus subjected, by a proper 
proceeding for that purpose ; and when their interest is to be 
asfeertaiued and severed, or affected in any way, they must.be 
parties to the proceeding. — 2 Story's Eq. § 1417, and authori- 
ties cited in note 1, p. 280 ; Murray v. Elibank, 13 Ves. 1 ; 
Munfopd v. Murray, 1 Paige 620; 1 White & Tudor's Lead. 
Cas. in Eq., p. 387, and authorities cited. 

5. The statute was affirmative and cumulative, and did nat 
change or propose to change th€ previous laws, except to pro- 
vide a cheaper and more expeditious remedy for the wife and 
children ; and it certainly ought not to be held to restrict 
their privileges, or the existing kindness of equity to them. — 
Smithy's Com. on Statutes, pp. 771-2. 

6. Statutes enacted at the same session of the Legislature, 
and on the same subject, ought to be taken in pari materia, 
and should receive a construction, if possible, which will give 
effect to each. — Smith's Com. 755. The act " to protect the 
rights of married women " was approved the 4th of February^ 
1846, and the act "for the relief of married women" was 



■. . * ■-••'■ 

296 . ALABAMA.. 

Blevias, adta'r, v. Bucket al. 

passed on the 31st of January, 1846; and this latter act gives 
a child the right to file a bill. — Pamph. Acts 1845-6, pp. 24-5. 
7. Mrs, Blevins had no power, during her lifetime, to sell 
or mortgage the property : the only power of disposition sh^ 
had over it was to dispose of it by will. When a statute gives, 
a new powerj and at the same time pi'ovides the means of ex- 
ecuting it, those who claim the power can exercise it in np 
other way. — Smith's Com. 777. That she could not have con- 
vej-ed by deed, see 1 Stery's Eq. § 97 ; Montgomery v. Agfi- 
cultural Bank, 10 Sm. & Mar. 576; 9 ib. 435. 

' i^liJ^' Byrd, conira: 

Tlae decree of the chancellor is correct, and the opinion 
written by him is clear and conclusive -upon the merits of 
this cause. < 

1. The. first and main point taken by the appellant is, that 
our remedy is ample and complete at law. We reply, that 
the bond of a feme covert is void at law, and can only be en- 
forced in equity, on the ground that she had a separate estate 
at t1ie time of the execution of the bond, which in equity is 
chargeable w^ith the payment of the same. — Forrest v. Robin- 
son, 4 Port. 44; ib. 208 ; 2 Bright on H. & W. 249 to 254 ; 
Vance V. Wells, 8 Ala. 399. 

2. The chancellor properly held, that the property acquired 
and settled on appellant's intestarte, by the decree of the Chan- 
cery Court of Madison county in 1846, was such an estate 
vested in her as would be liable in equity to the payment of 
her bond contracts. The act of 1846, relied on»by the appel- 
lant to defeat this cause, merely enlarges the jurisdiction of 
the Court of Chancery, and it does not, nor does the decree 
of the Chancery Court of 1846, vest any title to the corpus of 
the property in the "family" or children of Mrs. Blevihs.--- 
Pamph. Acts of 1845-6, p. 2^ ; 2 Bright on H. & W. 220 to 
241; ib. 249 to 254; Story's Eq. § 1390 to 1394, 1401; For- 
rest V. Robinson, 4 Por. 44; Sadler v. Houston, ib. 208; Vance 
V. Wells & Co., 8 Ala. 399 ; McCroan v. Pope, 17 ib. 612; 
Lee V. Muggeridge, 5 Taunt. 37. 

3. If the second point is sustained, then it follows that the 
children of Mrs. Blevins are not necessary parties to the bill. 
If the children had any vested interest in the property, it was 



JANUARY- tERM, 1855.» ' M'^ 

; ■ . -— ) 1 '. ■ 

Bleviiis, adti'r, v. Buck of aj. ' ^ • ■ 

only tlie right to the profits for .tnafntenandfe and support 
during the life of tlie mother ; for, at her ideath, she had the 
right to dispose of it by will. But.-if she had any separate 
interest in the property from her husband, she became liable 
in equity to pay said bond. — 17 Ala. 612. 

4. Hale and Buck wore proper p^,rties complainant. . The, 
assignor of a bond, though not a necessary paFty, may be 
made a party to the bill, either complainant or defijndant. — 
Story's Eq. PI.- § 1534 - Daniel's Ch>Fr.-243 to 251 ; Jieid 
Vj Maghee, 5 Paige 539; 6 ib. 598. 

. RICE, J.^-The equity of the i^ife to a settlement out of her 
choses in action and equitable interests, wfes a right welF 
known in this Sta,te, at and before the passage pf the act of 
February 4tl;, 1846, entitled " an act to protect the-^ights of 
married women." >■ , . ; 

By the first section of thai; act it t§ provided, ".that in all 
cases where a naaj-ried woman may be entitled to a legacy, Or 
to a distributive share of the estate of a deceased peF§on, or 
to any other chose in action, not reducedv to possession, she 
may, by filing a bill in qhancery' have such l^acy, distributive 
share, or choses in action, vested in a trustee fof her sole and 
separate use and support, ^nd for the support and maintenance 
of her famHy, if it s^ajl be ma^de to appear to tlm chancellor 
that the same would probably be lost tolier, if permitted to 
go into the hands of her. husband, either frop his insolvency, 
intemperance, or improvidence j and jn like manner, if she 
has an interest in lands belonging to the estate of a deceased 
person, either by descend or devisC; the same may be secured 
for the foregoing purposes, by filing a bill pursuant 4o , th^ 
provisions of this act, at any time before a division of- such 
lands shall have been made." , • . , v « 

By the second section, the proceedings mwier the act are 
prescribed. • ^ • ' 

By the only other section it is provided", "that such married 
woman shall have a right to dispose of, any such property, 
real or personal, by will; and in case of her death, without 
having made such disposition, the same shall be divided and 
distributed as in other cases of intestacy." 
J, The equity of the wife, as it existed at and before the pass- 



. ' Blevins, adm'r, v. Buck et al. 



age of the act above cited, did not irathorize the court to re-" 

' ;quire the tiusbanH to settle the whole of her choses in action 

ahd'eqaitable interests upon her and her children, btit a rea- 

.*;8ona;ble {proportion of them only. — 1 Bright on Husband and 

■'■'Wife, p. 240, ^ .' ■ 

,' fier^ehilfl-pen had no equity, in their own right,- which could 
bB asserted tigainst her wishes, or in Opposition to her rights. 
She had the right to waive her equity, even after the institu- 
tion otf her smij, at an^' titoe before ai^ or'der of ^ 'decree ; and 
if she did waive it, her children's right \vas thereby defeated, 
for thei]^ right was at her dispo^l -until an order or a decree. 
IBrigKt ©n H. & W., p|). '2^ to .244 ; 2 Story's Eq. Jurisp., 
^1402 to 1419. ' ■ •/^' ■ * 

It is obvious, that the act of TS^&'c'onfen'ed upon the wife 
the rlglit", iif all cases enrbfaced.by its pi;6vision«, to exclude 
her husband from, and secure to herself for the purposes 
therein mentioned, all her choses in action, legacies, distribu- 
tive shares, ahd equitable interests, real and personal, not re- 
duced to*pos9essJoft. This right* was generally, if not univer- 
sally, -more valua;ble to her than her equity to a settlement. 
But it* is evident,Jy incoiisisteiit with that, equity ; for she 
could not take^Ae wfhble under the act of 1846, without thei'eby 
destroying h6r equity to a settlement out of it. 

Our' opinion is, that tlie Intention pf the act* "ViTas n'(yt; |)y 
mere- force ♦of its provisions, withofttany aet bn 'the part of 
the wife, to Jestsoy her eqliity to'a getftement-^s if then ex- 
isted; but the intention tvas, to' tender to her by its provisions 
■what^was stippo^d to be^A morjfe valuable right, and to leave 
it to her election i6 assent her equity to a settlement without 
regard* to the act, or to a'yail herself of the right tendered by 
the act. ^' * • -'' 

TJiis construction com|)orts with the title of the act itself, 
and is in accordance with the spirit of our legislation in 
relation to marrfed wonien. 

Her election, when made and consummated by a final decree, 
would not only conolude her,TDut her children also ; for their 
riglit was dependent upon her and her' acts, as 'above shown. 

In the present case, the wife made her election to take the 
benefit of the act of 1846, and accordingly obtained the pro- 
perty under its provisions. Hence, it is clear, that the pro- 



JANUARY TERM, 1855. 299 

Blevins, adm'r, v. Buck et al, 

visions of that act became the law of that property, both as 
to herself and her children. 

Under the provisions of that act, and her bill filed in ptip- 
suance thereof, the decree of the chancellor vested the property 
in a trustee, for her sole and separate use and support, and for 
the support and maintenance of *hQr family ; and the act gave 
her the right to dispose of the property by will, and provides, 
that "in case of her death, without having made such dispo- 
sition,- the sanie shali be div-ided and distributed as in othw 
cases of intestacy." * 

Whether, during the life of the wife, ihe property Q,o\\\6\dkVQ 
been sold to satisfy a charge create^ upon it by ker, after the 
decree had vested it in the trustee as aforesaid, we do not de- 
cide, because it is unnecessary to decide that question.' But 
Tfe haVe no he^tation in holding, that after said decree h£^ 
been made,- she could, during her coverture, create a charge 
upon said property, and that such charge can be -enforced by 
a bill filed after her death, and by a sale of* the emtire propeily., 
if necessary to pay off such charge, uadei* a dtecree made^nder 
■such bill. . . - . 

This conclusion seems to us to be inevitable from the phrase- 
ology of the act of 1846, and the observance? of the following 
•established principles, to-rwit : 1st, that where property has 
bean settled upon a married woman to her separate use, «he 
is to be deemed in a court of equity as having ^U tlie power 
of a feme sok over it, except to the extent that her power 
may have been restrained, expressly or by clear impliijatien, 
by the instrument creating such separate estate, or by statute ; 
2d, that she may charge such separate estate for the pay- 
ment of her husband's debts, by an agreement freely and 
faii*ly entered into, unless restrained as aforesaid. — Brad- 
ford V. Greenway, 17 Ala, 797; McCroan v. Pope, i6. 612; 
Collins V. Rudolph, 19 «5. 6.16; Collins v, Lavenberg, i^-. 682; 
Ozloy V. Ikelheimer, at- the present term ; 2 'Stor;^^s Equity 
Jurisp. § 1398. ' ' * 

Conceding that, when, property is settle^ upon a trustee for 
the sole and separate use and support of a married woman, 
and for the support and maintenance of her family, under the 
provisions of the act of 1846, she and her family were to have 
the use of the property as a joijit fund until Iter deaths yet it is 



mi "" Avmi-sts:: 



Stallings v. Newman. 



clear, that- by ^tce of the provisions of the third section of 
the act, this right of her family ceases at li'er death ; and after 
her death, no member of her family can take any interest in 
the property, exeept as her legatees, devisees, or distributees. 
And as, after her. .death, they can only take as her legatees^ 
devisees^- or distributees, they are estopped frotn say\ng that 
it is not her property. ' 

, V . To a bill filed after her death, to subject personal property, 
settled under »the aforesaid act. to a .charge upon it, created 
by her during her coverture, her children are ^ot necessary 
parties. The admiuisti'ator of an intestate, in such a case, 
represents the distributees as to the personalty. 

When a note, under seal, is executed by husband and wife, 
anjd is transferred for valuable consideration by the obligee 
to, another, without, any WKJting, ar^d by delivery merely, the 
transferror and transferree may join as complainants in a bill . 
to enforce its payment out of the separate estate of the wife, 
ijpoil which it is a cliarge.-r^McLane v. Riddle, 19.Aki.l80, 
'Theye is no error in the.proceedings of the Chancery Court 
in this cause, of which the appellant can complain, and its- 
deci'ee is 'jJffirmed. 





> 




-»< •-•—» 



J* * STALLINGS «»:NfiWMAN. > 

l.^m shmde» fot-words spofceft xjharging ]^lalntifF wlih the<5riine of haying p^ur- 
dered defendant's son, U i|npt pecessary to aver the death of the person jsftid- 
to have been murdered. ' . ^ 

2. If a (Jemurrer is iTnpropei-ly sustained to a declaration, and the plaintiff tlieq 
amends, he thereby waives his right to review on error the decision of the 
court in snetaining the demurfCT. 

3^ What are privileged communications which will not sustain an action for 
slande*. 

9. A'witness may testifyvthat he received and understood the defendant's com- 
munication as private and coHfidential, in the -absence of any injlinction of 

, , (seweoy from the,d«fendant, op.of any declaration ou his part that they should 

.._ he so regartled ; but whether the communication was so intended by the de- 
Tendant, or, if so. intended, was nevertheless promptetl by jnaUcg^ is a que** 

■ ' lion for thd dettendJuathju of the jmyi ' . " • ,- , . , "; 



JANUARY TERM, 1855. 301 

Stallings V. Newman. 

.. ,. . , , — »X' 

5. The court having instructed the jury, "that couftdential communications, 
. made in the usual course of business, or of domestic or friendly, intercourse, 

should be liberally viewed by jurffcs"; held, that the charge was noterfOp 
nepus. » 

6. The words declared off as slanderous, charging plaintiff with liating mur- 
dered defendant's son, being shown to have been spoken while defendant 
and witness were alone together, going to a neighbor-s house to get him to 
read a letter which defendant had received relative to his son's death, held, 
that defendant's declaration to witness, made in the same conversation, " that 
his wife was much distressed on account of her 'feou's death'', was admissible 
evidence for him, as tending to show that the words spoken were prompted 
by grief rather' than malice. % 

r 

Appeal from the Circuit Court pf Cherokee. 
Tried before th^e Hott: THt)MAS A. Walker. 

■' This was an-actidn of slan&er for words spoken, brought 
,by John Stallings against John Newrfian ; the words charged 
in the first count, which are alleged to have been spoken to 
onB William Stallings, the brother of plaintiff, are as follows : 
"Your clan (meaning the clan of plaintiff's said brother, and 
thereby meaning plaintiff) has murdered my (meaning defend- 
ant's) son" ; " John.S tailings, your brother, (meaning plaintiff) 
murdered my (meapiug defendant's) son" ; " Your brother 
.(meaning the brother of said William Stallings, ^nd thereby 
meaning plaintiff) has murdered. 4ny son," (meaning defend- 
*ant'g son, one Cornelius N'e\^man.) In the second count the 
words charged were, " I (meaning defehdant) am satisfied that 
»he (meaning plaintiff) murdered hiiti, (meaning defendant's 
.'Bon, one Cornelius Newman,) or took him (meaning defend- 
''ti.nt's said son) to where he (meaning plaintiff) knew it would 
he done ;" thereby meaning and intending to charge plaintiff 
with havilig murdered defendant's said son,- or with "having 
been accessory tb his murder. '■• ' 

The defendant demurred to edch count in the ^declaration, 
■and his demurrer was sustained ; and thereuponj)laintiff, hav- 
ing' obtained leave to amend his declaration upon paying the 
costs of the term, amended each count by q,dding an avermeat 
""that said Cornelius Newman, before th« spealtlng bf'the 
words charged, "Tiad died, or had been killed in said State." 
To the declaration as amended the defendant pleaded not 
• guilty, and issue was joined on that plea. 



a02 ALABAMA. 



Stallings V. Newman. 



. " On- the trial," as the bill of exceptions states, " the plain- 
tiff offered proof trending to show that, in May preceding the 
commenceiiient of this suit, one William Stallings, who was. 
plaintiff's brother, and Jaraes Newman, who was defendant's • 
son, had some angry "words, and were. about closing to fight,, 
when they were separated by persons present ; that defendant 
then came up, a good deal excited, and said to said William 
Stallings, ' Your brotlier murdered my son, Cornelius New- 
man' ; and proved that plaintiff was the only brother of said 
William Stallings at that time. Plaintiff also proved by one 
Clayton, that at another time defendant said to him, that he 
(defendant) did riot believe tliat plaintiff had murdered his 
son with his own hands, JDut that he' hud taken him where he 
knew it would be done. On cross-examination, this witness 
stated that, «rheij this was said, witness and defendant wer« 
alone with each other, and no other person was present ; thait" 
they were vei'y friendty, and had been so for a number of 
years; ais«, a i^uinher of other things. stated to Jiim by de- ' 
fendant in said conversation brought out by the plaintiff; 
and said, also, that at t-he time of ^aid- conversation, he and 
defendant were going fropi defendant's iionse to the house of 
a neighbor, to get that- neigtibor to read a letter which de- 
fendant said he had received relating to the death of his son, 
neither witness nor defendant being able tpread.; and that 
they did go and g^. said neighbor to read»6ai(J letter. Elaiii- 
j^ff then closed. .*• •» r* i * 

t^ " Defendant, after havhig introd»eed the testimony of othe^ 
witnesses, called^satd Clayton back to the stand, arid by leave ' 
of the court was permitted to &ross-examine him as to facts* 
omitted ; and asked him, whetber,«6aid conversation between 
him -attd defendant was »ot private and confidential. . Plain- 
tiff then asked the witness, whetjiiefi defendant so stated such 
conversation to be at ^the tirae it was h^d ; and witness said, 
he did not remember t^iat defendant did* Plaintiff then ob* 
jected to the question ; but the court overruled the objection, 
and permitted the qjiestion to i)e asked, and plaintiff excepted. 
The witness' then answered,' I sp received it and understood 
it.' Plaintiff then asked the court to exclude this answer.;, 
but the court.refused to do so, and plaintiff excepted. Plain- 
tiff tlien renewed hi^ objection to .both question and answ«r> 



JANUARY TERM, 1855. ,x 303 

—I — 1 1 ■ . , ■ . ^ — r> k 

, StaHings v. NewoiMi. 



«nd askM that each skould be excluded, and . also "tlmt both 
should be excluded ; but the court overruled each objection, 
-jand permitted both to go to the jury, and- the- platintifif ex- 
cepted. • ^. . , . ., , 

" Defendant asked ngaid witjiess, also, if defendant was not 
jnuch distressed at the time on account .of the loss of his son, 
ijlnd whether defendant did not tell. him, in the same conversa- 
tion, that his (defendant's) wife was much distressed on the 
•eame account. Plaintifl' objected to what defendant said 
•about his wife, as being irrelevant, but the court overruled 
the objection ; witness answered, that defendant did tell him 
JBD, and plaintiff excepted. 

" Upon this state of facts, the court charged the jury, in 
•lijriting — 

;'■ "el. This is an action brought by the, plaintiff to recover 
damages of the defendant for words spoken of and concern- 
ing the plaintiff.. Slander may be defined. to be, the false, 
wilful, and malicious speaking or publishing of another any 
defamatory words, charging him with betn^ guilty ol" a fefony 
or crime. •' - •' . 

, -" 2. In .this-actioB, to" authorize the plaintiff to recover, it is 
•necessary for him to prove that the defendant, maliciously and 
•falsely, spoke, of and concerning the plaintiff, the words 
charged in his declaration, or some of them ; and when plain- 
-^iff proves, to the satisfaction of the jury, that defendant, 
falsely and maliciously, spoke or uttered, of and concerning. 
. :plaintiff, the words charged in the declaration, then he may 
.recover such damages as he has sustained, r*;, -,* • > .".*-," 

,' "3, To charge one of murder by killing 'another is actfofl- 
. Able and. slanderous, and, if falsely and maliciously .spoken, 
warrants a recovery-of such damages as tlie jnry may think the 
•party has sustained, commensurate with the injury sustained. 
'• "4. The charge must be falsely made ; but tlie falsity of 
Ihe accusation is to be implied until the contrary is shown. 

" 5. Malice is essential to the support of an action for slan- 

t^erous words ; but if one, falsely/ wrongfully, and wilfully 

. charges another with -a felony, thelaw will imply malice until 

:ttie contrary is shown. On the part of the defendant it is in- 

vsisted, that the words spoken by him were spoken under such 

.-^ircunistauces as to rebut and repel all malice. 



mk '■ f "■ ^r tmMMc. 



Stallings v. Newman. 



' '-'**&? Whether tWs be *he'-«£^0 ©r not, tlie jury must deter- 

: ''•s5*ii!ie from all the proof. ^T^^ ^''^ '"♦* ' *^''^ 

'*' " 7. For the purpose of rebutting and repelling the idea of 

.' -.malice, the defendant iias the right to prove and explain all 

•• ^he facts and circumstances surrounding the speaking of the 

words ; also, he has the right to show and explain all the 

facts and circumstances surrounding the speaking of the words 

in mitigation of damages. 

" 8. Oonfidential communicatioTis, made iiT the usual course 

.,,-«f business, or of. domestic or friendly intercourse, should be 

.*.lliberally viewed by juries : they should look whether the 

':!?ijirords wei^ spoken with intent to niefiame, or in good faith 

to comnTunicate facts infferesting to one of the parties." 

To the last charge the plaintiff excepted ; and he now as- 
signs it for Mirror; together with the other rulings of the Oourt 
•J.'Ubove stated, in stistaining the demurrer to the declaration, 

• And in the admissipa oJ[ the evidence.olyected to. 

. JaS, ]^. Mabtin* a^d D. W^ Baine, f5JS> appellant : K 

. 1. The demurrer to the declaration was improperly su^ 

.«%tai-ned. The words tised cgnvey-^ direct charge of murder, 

• >%3id are of themselves actiopabie ; and no colloquium was ne- 
-' "Vc^ssary, stating the death of the person charged to have been 

*»:i.*aurdered. If he was still alive, or had come to his death in 
' i'feny other way than by the hand of a murderer, it was matter 
»ri^ defence to be shown by the defendant. — Hall v. Montgom- 
^"ierj^, 8 Afe. 51t> ; I^ea and Wife .v. Robertson, 1 Stew. 138 ; 
sri[oily y. Burgess, 9., Ala. 728 ; Gb-een y..Lo^^, 2 Caines' R. . 
<^©0 f -Ot)ons V. •RQj)iri*Soa, 3 BarK S. C. R. 625; Cock v. 
" /-^^Weafeherby, 5 S. k\ M».-625 ; 1 Starfcie on Slander, p. 85. 
. .^sffhe decision in.Chandier Vv\Holloway,4 Port; 17, does not 
<^fcOnflict with" the view here taken. In that case the charge 
ywras, that the plaintiff had " killed" a certain person ; which 
. <charge*might h^ve been true, and yet plaintiff not have been 
-,«:guilty of -a felony. • , • > •■ . 

j'v''-2. We are authorized by otif^ statute to assign' for error the 
' 'jadgment on the d<ffmurrer, thotigk • an amendment was al- 
lowed ; especially as the plaintiff was required, as a condition 
. -to the allowance of an amendment, to pay the cost and prove 
;ihe death.— Code, § 2255. The suit, having been brought 



r JANUARY TERM, 1855. 305 

St'allings v. Newmdn. 

before the Code was adopted, is governed by the old law, 
which is more con^prehensive. — Clay's Digest, p. 334, § 121 ; 
Fontaine v. Lee, '6 Ala. 889 ;'Smitlr A Garey v. Awbrey, 19 
li. 63. , . . ■ ^ . ' '- 

3. The' court erred in- admitting thfe question put toCHy- 
fon and his an'stwer thereto, viz., that, though he did not recol- 

'* leet defendant's telling him that his communication was pri- 
-jtale and'confidential, yet he "so received an (J understoaci \f^ 
Ti was but the statement of the conclusion or opinion of the 
■w^^tness, an4 his answei: shows that" he did not know the facts 
upj)h which." th.e conclusion depended. The words used we're 
axitionable in themselvlBS, and the law implies malice in their 
usf. This malice is- what the law inteiids, to'pu'nish, and it 
cannot be affected by the manner in \ihicK the* words'' wfere 
received by the person who heard them. If the fact that the 
charge was c(5mriijinicate(3 to the witness when no other per- 
son was' pVesent, Is. to pro'tect the dcfendfint from -damages; 

, might 'he not repeat the gauiQ* story to 'every citizen in the 
county in the same manner, and if tliQy, though ript requested, 
received -the comnkmipation '"&s- private and clGmlrdentfiar-^ 
tllfeh invoke these circumstaiieesto protect himself against the 
punishment wliich he -deserves? .The riile which allows the 
defendant, under the *g,eue:;al is?sue, to prdve all the circum' 
stances under which the words* were* spoken ;in •mitigation of 
' danfages, contains this proviso, viz.. that the circumstances 
offpred to be prpved must tcnd^toehbw the absence of malie6, 
or to rebut its prgsumptibn. T^r ^iny -©ther purpose the at- 
tending tfi'cutnsiances have nerer-lje'en admftted ; and if they 
do not tend to tliis purpose, they are incompetent. — Root^. 
King, T-'Cowen's- R."613 ; ♦ Wormouth v. Qram^r, 3 Weild. 
39S.; Arrington v." Jones, 9 Port. 139.; Douge v.'Pearoe, 13 
^ia. 127. 'The evidence here, so fai* from showing the ab- 
•^eiic^ of ma-li(?«-, discloses the chacACteii of Of e«ol, deliberate, 
arid <as*u*e slanderer ; oUnrfingly and secretly blackening the 
name of his victim in the estimation of those with whom he 
may inost injure-him, ai>^ at the sa>me time protecting himself 
from exposure a,nd punishment Iry leaving the impression that 
his communication is '•private and confidential." SUch an 
abuse of the rule willnot be "tolerated* 
^.4* ,To ascertaiu whether the evidence was relevant, is to 
' ^0 



A^^. 



;1.L4BAMA. 



Sfalling^ V. Newman. ...■*'' - , •• 

— ' — -" — ■ ■ — ■ — •^— — ■ '—. ^.' fr. 



determine .whetlier it tended to:pi*ove- the issue joined. Thi$' 
issue joined was, whether the defendant spoke the words laid 
in the declaration ;■ withjiberty to him, ii'he.had done so,^ to 
sho\^ the absence of malice in mitigation of daQiages. Under, 
this issue, the defendant was a,lk)wed*to pj-ove, that, ho told 
the witness, in the gtime convo'rsation in whiSh he used the 
words laid, that his wife was greatly distressed oh ai^Souhtof 
the death of her son. The statement (Jf this eyidence is suffi- 
cient to show that it' was illegal, and that its only effect could 
be to mislead the jiiry. by cre9,ting'in their mind$ a false and 
•illegitimate sympathy for the'^defendant. It is sdid, that this 
evidence was competent, because it was a pa-rt of a conversa- 
tion called out by the plaintiff. But the rule here invoked 
goes no further than tjp allow all'the converstiticifi that iS'com- 
petent and legal within itself, and relevant to the issue joined, 
and is. only illegal because made by the declarations of Mie 
party desiring to use them. — 7 .Phi'- Ev' -S^t). 

6. flic eighth qharge given' by the court was erroneous. 
Privileged and confidenj;ial communications l\aye a technicad 
leg^l meaning.- They ^orpi 3n excQptjooito the general rule, 
that the law implies malice fr6n> the'use'of wx^rds whi'Ch' gPr^ 
jaetionable in themselves./ ,Wiiii.t pri^ieged^nd confidential' 
Qiftxraunications arfe, is ftilly^show;i by* the case .of Whitq y. 
Nicholls, 3" How.-U.^S. R. 26^; and that ca^'e is fully sustain- 
ed by the.f611owing^g,uthorilie6«j Proser \\ B^pmage^4 B^rn, 
ife Cr.,247 ; Pas'leyv. Freeman, 3 Terra R. ^1 V VaaspikQ-'f / 
Cleyson, Gro. Eliz. 541 ; ^aryis v. Hatheway, 3 Johns. 180 j 
O'Donaghue v. McGova-n;<2l Wend. 26; Easley V: Mcfss, ^ . 
Ala. 266 ; Sewall v..Catlin, 3 Wend. 29l. - ,To bring a case 
within the first exception, the author of tKe,slander must hate . 
acted in the hoim fdt discharge of a public or private duty, 
legal or moral, lor in the prosecution of his own rlgkts or iif- 
terests. But this charge' assumes, liliat oiife maft OKiy <6lsgidel~ 
his neighbor to any extent ; pwvtdedfhQ does it 4n^a private 
and sociar way, ^uid one of the parties /eefe an' interest in the 
sabjeQt. , I/ this be the law, no .slanderer could- be to© vile^tft 
escape. The law, howet^sr, dximan^s that the communicatioh 
should be required fw the protectiqn of the inteRest of one 
party or 'the other* — Grimes ty-*Ooyle).& B.. Man. 3(01. Con- 
ceding that "such a coustruction could be given to this charge 



JANUABYiTJFRM, 1855, '• 3aT 

Stalhngg.y.Newmanf. . * -.'.'.' 



a^' to Make it conform to the law, Ujwould' still fe erroneous, 
because there wasno.evicleneeiipoii wliicih to j^redicate it. It 

• is,e'videi\t fr0in;fhe propf; whioli is all set out it the bill o-f 
exception's, that the jury ,wei*e boifnd' to ilrtd a- verdict for tlie 
plaintiiF; and>tliat they did; not do^soVcaa only be acQouiited 
for on th& supposition thart they wore; rpisled by tthe fcharge, 

, which yds its necessary tendericy.— llollingjjworjih y. Martin, 
■• 23 Ala. 5^1: ; Cajter v.' C^iaudron, 2l'ib. 7*2*j;.Se'awelKv. Hea» 
. ry; 6 ib. 226; Toulmiu v,_,Lescsn(j, 2 i2>. 350 ;'"CGthran ^ 
]\loove^ 1 ih. 423 ; Morrfeon Vl Ju(ig-6; 14 ib. 182 ; 23 ib. 655..- 

. M. J, TuRNLEY, coTi^ra; ^ ^. V 

1 * TJie demurreii. to )5fe ^declaration pugfet to han^e been sai- 
'' tained.-, Each.eoutit.wa^g defective ii? "not avjerj-ii^Mbe dfeath"- 
of,,th6 pepsdn alleged .t© havp been i^qr^red/ I/" tlie t\-o3'ds, 
■ " He*is,^^ muiMerer,"^^-ij'ln^themseh'es aetionjible, and require 
iutc()//o^jizww» alleging tlfe ^ea-tlr (^ anypArticukr pd?son^ it 
■ 19 because '0^ the j\1]!lj-lthx)^n fact .that m^nv'mui'ders have 
been.committed/and the charge would imply tliat the accused 
was ^!iiijfyo/*s(^e-0f the«i. • B^fr where th^-dia-rge goe^ fus<^ 
thOr, a^. in" thfs (^se,%pd specifies tlte' particular "individual' ' 
alleged to ha>'e -be^ .niur«ler^, it i^^uo lougoi; a general tcru^ 
of known M^Hmpbrtf, 1)01? recfulfes an actditional a\':erA>(B|^ / 

• of '€ho '(iMth of that individual to i«ha^e,it»aetion«ljl'e. «A ' 
cl^argc-.of^ie murder. oC A; t^hp is-knowufo-'be stilkltvii%i^- , 
nGjb^A crime, pankhablc^bx ia^jjantf e^^OoVsHbje&t Iha^ao-^ 
cused to tl^e penalties* qf the ,fe.^egainstnlVcder,i li\ sfipport 
of this position, 'Soe 'Chandler v. H^olloway, 4 Port. IT ; 1 

• Staf-kie-9B SlahScr/p; f^ ^ 

- 2. Tiie t6sti«;i5»y of .the witness Clayton was properly ad- 
mitted. •K^i^cr the pica of iiat g^iilty, thed^fen^uit wem aw 
tlloi:il6^t(5r)tfoN»e»»ll blio cir^tti^itatiiiesaH^gBfidiyif tho^spsaking 
ofi<the;woa:ds m- mitig'ati'ou of Bam^ljfes.— «WiUiaiir&v. Cawley, 

. ig-Ak. m; , -Wright vcLi^>li<ayNv2»'tA.il2§^';lirwcw5 sho>wn 
tliM ^dcndaat.'-aiad i5la/ion. sy€Jte kitTHsarte.'^iends^ctf lom^ 
standing ;. thatvdofemkmt»h9iV,i?ec6ifeda fetten. inrrelation to 
the-death of hi* soUf^'thart ^efl^ad-liia wife were mych.diatress' 

• e5 ott-uccouuit. ©f j3jeir'6onV soppdseidjdfeath ;'that'he' and 
Clayton wer^ aione^ going 'to a neighbor's house to get him to 
read the letter. All these circumstances couclubively shov^. 



308 •/ .;. ALABAMA- 

Stallings v! 'Newman! 



th^t tlje words w'ece spf«cn, in private coijfideiice, ^nd that 
they emanated from a Soret^^ troubled heart, and were uttered 
in deep grief and not in malice^ The evidence .objected to 
was not the statement of" a •cancltisic^ oi* opinion of the w:it- 
ness. The witness knew, from the iiitimacy and friendship 
long subsisting between him and defendant, and from.all the 
circumsfcaDces attending tt]fe eq"tamunication, that it* was ^i^ 
vate and confidential ; and he di(;l' hot need^fo be fold so'by 
tjje defendant. ' i ' • ** 

:,/3. The communication was certainly, not only privatevand 
confidential, but also privileged. — 1 American Leading Cases, 
p. 180. The evidence Nyas admissible; not oply because the 
communication was private, and confidential, and privileged, 
but for the purpose of showing the circumstances under which 
the words wQre spoken, as tending to show the want of malic.e. 
Williams v. Cawley, and Wright v. Ldndsay, supm, ,. **/ 

4. The same authorities -show that the charge of the court 
on the subject of private and confidential communications was 
correct. 

*,6. Plaintiff having proved a part of 'the conversation bq-^ 
tween Clayton and the defendant, the lattei' had a right to 
the whole of the conversation, and all the attending, circuto- 
stances. . ' -'v*^'-'-' •• ' r ■ 

6. If the evidence'objected to not only failed t(f 'show'fhe 
want of malice, but, as the appellant insists, " disclosed the 
character of a cool, deliberaie, and astute slanderer" Jiow was the 
appellant injured by the admission. ? 

CHILTON, Q. J. — There aresoH^e pld^cafees .which wqjild 
justify the court in holding the original declaration in this 
case bad. The case of Sir Thomas Holt v. Aftgrigg, 2 Cro. 
R. 184, may be cited. In that, the words were, " Sir Thomjts 
struck his cook on the head with a cleaver, and cleaved his 
head ; the one part lay on one shoulder, and another part on 
i^e other." The verdict against the defendant was arrested 
iK^ the King's Bench, upon the ground, that '' slander ought to 
be direct, against which there mq,y not be any intendments." 
See also Prichard v. Hawkins, ib. ^IS ; Holland v. Stoner, ih. 
315 ; 4 Co. R. 20 ; Roll, Ab. 72 ; Hob. 6, 77, 177. 
^ . The doQtrine upon which these, and a number of odd cases 



JANUa4t TERM, ISSS. ' 'M 

Stallings v. Newman. 

nests, to-witj that slander must be direct so as-to exclude every 
intendment, and that words,,in.all cases, must be taken in mi- 
tiori sensu, has been exploded for more than a cenimy. As 
far back as 1721, the same court held, that to say of a certain 
person " that is'the man who killed my husband," is actiona* 
bJe. — ;8 Mod. 24. Pratt, C. J., in delivering his opinion, 
said, " We are to understand words in the same sense in 
which the hearers understood them ; but when" words stand 
indifferent, and arc equally liable to two distinct interpreta- 
tions, we ought to construe them in mitiori sensu; but we will 
never make any exposition again,st the plain, natural import 
of the words." , ,.\ . 

Eortescue, J., said,4he rule, to expound the words in iwe 
gilder sense, had at that time been exploded fifty or sixty years. 
,,*,.So,,itf a late case, Tomlinsen v.Brittlebaiik, 4. Bar. & Adol. 
6^0, it was field, the words "he robbed J. W." were actiona- 
i)le, as imputing an offence cognizable by law, and that if the 
■ wofds weie Used- in any other sfensQ, the defendant must 
9I10V it*. ... 

V The true, rule require?, that Words should rbe constrted ac- 
coitling to their obvious meaning, and taken in that sense in 
wMch'those who hear wtiuld understand them. — McGbwan v. 
3^anafee, 7 Mon. R. B15 ; Hoyle v." Young, 1 Wash. R. 152; 
flay.R. 116 ; .2.Dev.'&.Bat. R. 27-4, ;• 9'New Hamp. R. 156. 

Applying this rule to tlie facts averred in the declaration, 
we entertain no doubt that the declaration demurred to was 
sufficient. When it iS skid, A murdered B, the sense in which 
such expression would beiinderstood evidently would be, that 
ic. killed him under such circumstances as would constitute 
him guilty of the crime of murder ; and the words clearly im- 
puting an imputation of the crime of murder, we are not pre- 
pared to say, that if those in whose presence and hearing they 
were spoken had well grounded reason to believe the person 
said to have been murdered was dead, the plaintiff, who is the 
. sufferer by the slander, should not recover, although the de- 
fendant may prove that the person alleged to be dead is still 
.alive. That he would be so liable, was expressly decided by 
the Supreme Court of North Carolina. — See Tugart v. Carter, 
1 Dev. & Bat. 8. 

So in Tenney v. Clement, 10 New Hamp. 52, it was held, 



i. . :. ^ ."^ ■ " Stallings v. .Newjnan. ,. * " 

^:..-gA,-.;v ' ' ^/'v. . — ; ' * *'" , ■" ■ : ' ' ■ " — — 

in'an actionTor words charoinj^ ,the plaintiff wifli the cringe 
of murder, tliat it ^\^s .nol necessarj tp allege oj prove the 
death oi" '.tile person sa,i'd„tt) "be murdered'^ rtiUt it ^"-as suffi- 
cient if tlie existence of *the person alleged to have been mur- 
dered was not known to .those iji whose presence the words 
. tvere "spoken. TRis is meirely giving^ offeCttb the"Fule.preVi- 
biisl}' laid down--:-that is, con^suing^tJie words in the'sense 
ia which .the b}-standei^s niav: fj]jirly undersjiand them. 
. , ,. If fotldws iroin" wji^t we»ih(tve said-, thafr-flie equtt'improper- 
\y sustained the demurrer to •the'de,olaration- as it originally 
"Stotord. The plQ,inl>iff, hbwevei*; did -not repose upon the de- 
,.e&ioti,- and seek, a j-eversal. in this*court. sitopping* the ctiufie at 
mat stage of the proceeliiing, by suffering judgment to be xen- 
d|reicl.pn' the demurrer. .He-, amended his da,{;Jaration, an(i 
•vr^t to trial on %s dpclatiition as' amencled, ancj thn's.waived 
ms right foj-eview the deci-jiponof trie court upon' tlie d\?mur- 
jft^. 3ii6h was clearly' the law'be/ote the"^atutc'(Ca".dwell^ 
V. May. f.^few. 425)/and the stiitutc ouly'reserves'tliQ 'right 
t« review the deci^j^*^! oC the const upon the demurrer jvhen 
the coupXoYerriileȤueh demurrer, anji the.demuirattf -please 
ovcr.f^Clay's Digest, p.-ZM, § 121. "V ' Y /. '■ ' ' 

^ |.Jn relation to the (fohfiflejitial conimuuicatiqil jof thfe Vords 
cltairgfed la^'^lailderDus, as {Ji-o^ed by the'-^-itness Clayton, we 
i^ed only obsei-^^e, thaj;,^ although -they^do liof fall witlnn'the 
dlass oT^rivyeged dec!ar?itionig jyMch eonstitute exceptlolis to 
tiie general' intle of implving malice *fro"nl slaiadoronsexpress- 
ious, vet that they were deceived by an intiioete fricbd, to 
^■w2ipt» dlotie 't1i^*5\''ere cairiijiunicated at that tim^,'as- priva4;e 
and.coafidentisll, oei'tari«nly gq*es.as' a circumsta,nce -to mitigate 
the damages, as tending, to di^proVcmalicet , •.* . • 
Privileged commUnicatioria itro said ito. be^of fojir kinds— 

• »*'.'^ "* ■,* k ■'V*''' 

1. Where the aYithdr 6f ' tii^' alleirod slander' acted in the 
lonajide discharo^e tifsf^ublic or p^-ivatc duty, either legat or 
moral, or in 'the prosecfiition of liis.owa. rights* or interests.- 
*.2. Anything; said, or written, in gob^^ faith, by a' master, iH' 
giving- tlie character of Ills' servant whji haa been empltj^eci 
by him. '/'■^V . OW* 

3. Words'used in the course of ja legal or judicial proceed- 
ing, hovvev,er Jjard they may bftar upojti tilO-pA^ty of whom 
ttey are used ; and ' ' '• '* '' 



■1> 



JANUARY TERM, 1855. '#11 

\ ;T..ri/-t __ 



StaJliuKS V. Newman. 
t t 



' 4. Piifelipations duly mq^de in the ordiflary course of par* 
•liamentary. proceedings ; as a petirion4>yinted ami delivered 
to the members of a committee appointed by the Legislature 
to hear 9,nd determine grievances. — White v. Nicholls, 3'. 
Howard's- U^ Si.:Rej). '266. ' 

^0, also, ex|>ressioAS of suspicion, based upon facts detailed', • 
confidentially and prudently made to discreet persons, in good 
faith, to direct iixQU' watchfulness and enlf^t their aid in the ' 
detection of persons -supposed -to be .guilty, of felony, ^hich 
expressions are not more extended than the cii'cumstances of 
suspfcion .justify^ give 'the parljy* injured 'n6 right to maintain" 
an action of slfyiderr'since the public interest I'equires that 
such comrauhications should be made, that offenders may be 
detected. ' 

Appl}'ing ijhese rules to the case before us,, we think that 
Clayton might wejl tesitify that he received the communica- 
tion from the' defenjJant ag private and confidential, in the 
absence of an injuncti(;ni of secrecy , 6r of any declaration on 
the' part of the defendant tlyit the}" should b^ so regarded. 
That'he so received an3- undei^tood-^ the communication, was 
a fact to which he could testify ; but whether the words spo- 
ken were so intended by the defendant, or if so intended, they 
were notwitjjist^nding prompted by malice, was a question for 
theji>ry. - ^' - Jv :: ; 

. Noc ^'•as there any error in the charge, that confidential 
communications made jn the usual coui'se of business, or of 
domestic or.,friendl3(. intercourse„shQurd'-be Jiberaliy viewed 
by juries. ^ , ^ \ '- . ' ;^ ■ 

What {he -defendant* sai4 to Clayton^ as to thte distress of 
his wjfefby reason of.tlie receipt of -the news of the death of 
his son' was liot entirely foreign from this case. ' It served to 
show the condition of;the defendant ^at the time he spoke the 
words, and tended to show tliat these words rwere prompted 
by'grief, rather than by mdliee. It tended to explain the mo- 
tive, anxi may he considered aspaift Of the res. 

W^ have-' carefully examined the charges of the court, and 

are-of tht3 opinion, when they q,re referred to, the testimony 

in the cause on which they-.are ])retlicated, they correctly aa* 

sert the, law applicable tp.tiie case. 

:■■ '^here is no eErt>r in the record, and the judgment is affirmed. 



*<• 



312 .. • J.^Jr ALABAMA. 



f." 



Locke's Executor v. Palmer et al. 



I*. ■ . . 

:0 ,^,i:,OCKE'S EXECUTOR vs. PALMER ET-Ai, ., . 

I, On \ii)\ filedtoliaYe a deed^ absolute oft its fece declared a mortgage, 'i^\.'' 

writing exefeufed by 'the ^'aniee several' tnontll? after "the original deed, tS- 
» -citing that it was agreed between him and the grantor, at the time the deed 
>;.''*as executed, that if the latter re-paid to him by a specified da^ the amount 
s,-<>J" the consideration money expressed in the deed, then he .wQuld re-conrejt, 
•. to him all the property tKerein mentioned, and binding himself to re-convey 
.'jiificordingly, — is evidence of the highest character against the grantee ; and 
■'although it may not be sufficient, of itself, to show that the parties intended 
•j*he deed to operate as a mortgage, yet if the other evidence iu the case, ta- '^•^ 
ken in^cotinection with it, establishes that to have been the purpose of th« • -' 
parties, or even renders it doubtful .whether a mortgage or a conditional sat* 
M(rds'intended, it is enough to induce a court of equity to declare it'a mortgage . .• 
Ij? '*rhe inclination of the courts of (fquity always has beeii, to lean against • 
•<^.jC6nditiorial sales, because an erroi; which converts h' conditiynal sale into a ^'\ 
mortgage is not as injurious as one which changes, a mortgage into a condi- ^ • 
tiona,l sale ; and this inclination is strongly manifested, whenever tha trans- '^. 
atetion had its origin in a proposition . fol- a4oani '' or* thevrclation of debtor .< * ' 
•^Vnd creditor existed betweeh the partias. • '* ..*'*. 

3. The fact that the debtor's notes are given up to hipi by the creditdr,.aiid n^ ^. 
.acknowledgment or other evidence o^ the. debt retained, is a strong drcuin- 
starice to show that the relatipri of d'eiil.or and creditor was destroyed,, but it 
-is not conclusive. , ~ • ' ' * 

■ '9t.' Therefore, in this case,'a dee^ absolut&ofrits fiice was declared a mortgage, 
on propf of these facts : That the trarisactito'originatpd in a loan Of money, 
{ind the xelation of debtoY- and creditor existed between the pities- ; that 
i . some of the' articles of personal propei-ty conveyed were not enumerated id 
■''the deed ; that the creditor gave up the ilebtor'g notes, and retained iy q,vi-, "|» 
delice of th'eflebt : that thd creditor, about twQ months afterwards, acknowl- 
edged in writing that, at the time the deed Vas executed, it wJvs agreed. be- 
*'*.--. twpen them that, if' the debtor re-paid to him by a specified day the amount • • • 
.v^^jipressed as the consideration iu the deetl, then he would re-convey to him 
•; all the property therein mentioned, and bound himself to re-convey accord- 

• ingly ; and that all the property, bath real and personal, Remained in the 
debtor's possession, without any agreement for Tent or hire so far as the evi- 

,- ;^nce disclosed. ' * 

6. Equity looks with a jealous eye upoji saTes of^-the equity of redemption to ''• 
the mortgagee, and requires them to be established by the clearest and most 
convinchig proof. (Th^evidence in tbi»case>»was held insufficient.) 

•^ Ita portion of the mortgaged property has been sold with the mortgagor's 

.; '^Jogjisfyit, and-the proceeds applied towards the satisfaction of the debt, he 

' ^may file a bill to redeem the residue. '. , . 

7'. ' It seems, however, that even if there had been ntfsuch sale,;fche' mortgagor 
'might, at his option, proceed for a redemption of all or any portion of the 

* property ; but if be files a bill to redeem a portion, of it only, a decree in 



JANtJARY TERM, 1855. ai^ 

Locke's Executor v. Palmer et al. 



his favor would be a bar to any other proceeding of the like natiife upon Uie 
same contract. ■ * 

8. The statute* of nou-cjaim does not apply to e(5uitiefe of redemption^ 

9. If a bill to redeem slaves is filed by twa joint mortgagors, and the evi- 
dence shows that the i5l&,ves belonged -to one of them only, this is no material 
variance. 

Appeal from-the Chancery Court ef. Greene. 

Heard before tKe , Bton:' JiMEiS B.'.ClarI^. 

'••»..■ 

, This bill was filed.ii^ July, 1852, l^ Wm. ^. Palmep 041.9 • 
B. D. Palmer, late co-partners in trade doing business under 
the firm name of W. M, & B. D. Palmer, against Volney - 
Boardman, as the executor of Jolm Locke, deceased, and also • 
as the execjiitor of Wm. A. Locke,; deceased ; 'and its object^.; 
■waSj to redeem two slaves alleged to have been fnortgaged by 
complainants, in March, 1845, to'said Wiil. A. Locke. The 
malerial^ allegations of 'the bilj are a^ follows : That complain- 
-ants, being mucli embarrassed in their business, and hard 
pressed for money to meet their engagements, applied to Wni.' 
A. Locke for a loa;i or advance of moijey ; tbat said Locke 
agreed to, adva?ice» about $3504 '50 for them, it they would " 
secure to him" its re-payhient, and as they could not give him' 
personal .security „'he expressed a desire that,tlrey should make 
him an absolute oo'nveyalice, in fed simple, 01 Certain real and 
^personal property of which they wefe then seized and pos- 
sessed,; tijat'in.con^iderst.tioh of 'said Idan of .$3504 60, they 
accordingly e:j^ecute(l W siiid Locke a deed, dated March 19, 
1845, by whicK thjey conveyed to lyim, {absolutely , and uncon- 
ditionally on it^'f^ce, one hitndr^'and sixty^ aQr6s-of land, oij 
which they then resided, kn,owH. as " Greene Springs," to- 
gether with iwo« slaves named Oliver and Silvy, and all the 
arjicies ef hou^el^old and kitchen furniture th'eij in their pos- 
session at said watering-place • " that said deed, though a*bso- 
lute and unconditional *pn its face, was intgnifled .only to ope- 
rate as a mortgage io seSuiys the re-payment of ^ald sum of 
money, and was so received and* held by said L6cke ; that _ 
said Locke being in bad healtl;^. and complainants fearing that 
he might die before said money .was re-paid, they, applied ' to 
him to execute a writing setting forth the true; nature of their 
said contract, and in compliance with their request said Locke 



. » «■■ '. ■ — *' ■ ' * ' ' ' ; —w • r- —^ — -r-^ «! . ■ ' > Vn i ij i .'y i .'^ . v *" • 

/•:.■ ; , ' Locke's E\ecutor v. P^lliier*et al.' ., 

.' j ' 4 : ' ■ '' — ^^ -^ — ^ — '— ^^ ' — ; — : ^—^- ^-^- '.y''- 

e^ecuted^-to them, on- the '26th May, 1845, an mstrument in 

writing, commonly call efVa defeasance, whereb-y he bound 
himself to re-convey to complainants said land and negroes 
and other propierty, provided -they would' re-pay to him Said 
sum of money, loaned as aforesaid, on or before the first day 
of January next thereafter."' These two deeds (the original 
conveyance and the defeasance) are exhibited with the bill, 
and prayed to be taken as part thereof. , *. , v 
^^ The bill further alleges^ that com^.lal&ants'remaine4 in 
: peccable and" quiet possession of gaT4." land iind negroes, as 
well as of- all the other ,p5ope»1^\conve}'«d by*said deed, during 
the lifetime of said L6cke, and for, se?s^^at*y ears aftefvi^rds, 
•uiitil some tiijie in June^ I847vb'y and'witli -tire consent of said 
-Lp'cke and l^ia^jexecjitorV- by- paying -interestt pn' sd.id sum of 
inmiey -so advanced to them • thafsaid Locke died in .June, 
1845, after having nrndiC and puWisiJied- his last will and .tes- 
tament, of which he'' appbinted 'hjs brfjthpr,, John Locke,^. the 
eltecutor ; th'at said will was duly admitted to probate, 4rid 
^ai'd John Locke qualified as executor-^ that sojne tim^ iji the 
- spring of l&l7*sa*d fe^ec*>t(>r''q,i^plied to Co/nplajnante 'to ob- 
i tain their consent to sell said land anc> perishable property 
appertaining 'to 'sai.d .springs, and cotfipfainants, not> being 
able to refund , said money loaned -tp^-^tliem as aCovesaiel,' con- 
sented to'^' sale, thereof only reserving, the; said negMes aiid 
their Vigl^t'-to redeeir^ them : that thefeupoh^said Johtf Jjocke 
sold the said«»land to Henry Tjit^v^^f, ^rairpui $3,060, «i.nd 
all the' said perishable propert)" fof >afbout $245, and aboiit Uie 
jSametlnie "took' the :said negroes into his" posseg^iOn, by and 
*wtith complainants' consent ftl^at said negroes confinued in.his 
■possession until his ,dea^h,'whiljh oaeuVred in the yelarT''^48, 
during alj* of wiiich-time hfe recc^nize^.complainalits'.riglit to 
Redeem them*; that said Jqlin Locke, * previous to his^ death, 
had ma>de'and published, hiSr JErst'wiU and testament,.! which 
was afterVard^ duly admitted to ]:itrobafe, and pf which the 
defendj^ntj Volney-I^oardnjan, was appointed execut6r ; that 
said Boardn^an qim|i0M as " fejteciitOx, * ajKf took poese^sioii of 
s^'d ^aves, -and has continued to hold them up to 'the filing 6i 
the bill'; ".that on or about th^llth May, 1847, but tiftcr the 
sale to' safd Yutwylpr:', cianfplainamte^had a settlen^eut jvith 
said'iTofhii Looke in' regard 4oisaid t'ransaction,'ahd«6n said 



4:* 



' •^"'yrNUAEY TEiqtf, 1855. -gfe 

Lockti'p Extcutor v. I'alnur <;t al. 

, ^-. , ___ _^i_ ^ : i^: . L_ 

settlement wereNfoiind Webted" to him, on account tlrereiof, in 
the sum of $1168 92, ar oopy pf Avhich ^setttenipnt is- now in 
the possession of said Board man as executor; that complain- 
ants, notbeing able to pay said supi of money at. that time, 
agreed to surrender to ss^id Locke the possession of said slaves, 
as SQCurity for its^ payment. According to their original con^ 
tract with Wm'. A." Lockd, and said John Locke agreed to 
hoM said negroes as a security far saiS^ebt, subject to said 
jdefeasa«cG ; that he so continued to hold them, up to the time 
of^iis death, alwayfe.recogniziiKg complainants' right to redeepi 
them.iand never denying the'^ctme": that «since l^he said slav.es 
went intatUe possession of s^id Locke' thp girl Silvy jias had 
fiTree diildfen, : fliaVthey are now worth a great deal mor^ 
than th^ ^um of njoney^ for, which Wiey were pledged, and 
'tbeirjiieasonable ^ire .would rijiore thhru extinguish the balancfe* 
du6 oil 'the said' ^ent ; that eomplainarits Have several ting,e6 
app'^iod to';saiS Boardmau for a^^ettl^ment of tl>eir. accounts, . 
and tendered' t6 him whatever b^ance* might be foun4 due 
iiMi, if he- woftld surrender ^saicl slaves, &c. ' . '■ .' 
" '\ The prayer of the bill js, foi* an account- of the balanQcM^e 
€f^>s9;id^ debt, and "of ti^ehii'Q^of t^e negj'oes sinjze they w^ht ' 
into.theL posfession ■ of sftid vToiin Locke,* for*" a *dfeci>e€?' of re- 
demption, and foi; general reli6,f. , '•*» * *♦ ; 
, Tlte^ original deed^from.^ie. cQmplainaiits'tp-<said Wm. A. 
»Lt>ckc, a'hd the- writing dalled a defeasance, are naade .exhibits 
to the bill* The latter 'instinmient is as follows.: ' 

, V ^' Whereas,' on the ii[th day oflifarch la6t,J)£^st, Wiji. M^ & 
*B. B. Palmer, * by ,iheir deed of that datp, cpnteyed to me a 
certain qHar-ter-section pf lantl thei'cim described, being the ; 
«ame on vbiph tbc '^.Qreene»Sj3tyngs".afe situated, als© two 
negroes by the. nafiie ov &fl\;y and 01i^^^ and all the house- 
• hold or kitchen furniWe. be^ngin^ ^or aj^tached ,to said • 
• Springs"s &c^.| " all' jof wMch' ])roper,ty >i& Bi\ore particulafly 
(iescril'jed in" said deed, Cor the contji deration of about $3,587, ' 
as well as I- o.ow*recollect ; and whcueas it.'was agreed be- 
tween the said' Wnj.^I. & B. D. Ralmer and myself, at- tUe 
time of tlie exeftutioH of said conveyance, that if said Wdi. 
M. ^ B. D. Palmer, or; their assigns, should,, on or before the 
first day of January ne5J>,*i'e-p?iyJ;o.fl?e thPsaidstm^of |3,587, 
pr- whatever sum.'-is s{)^cified in.gaid deed^as t^ consideration 



# 



316 \ ^.-•: AMBAMA . ' ' • ■ • ' . • . 

Locke's Executor v. Palmer et al. 

thereof, then, and in that event,, f^ at I would re-convey to 
them the said quarter-section of land, the said two negroes, 
iiousehold and kitchen furniture'', &c. : ", Now, if said Wm. 
M, ■& Bt D. Palmer, or their assigns, shall, .on or before the 
first day of January ne;s:t, well and, truly pay to me, or to 
my assigns, the said sum of ^3,587, • or whatever sum -is men- 
tioned in said deed as thq ccyieideration thereof, I do -herphrj' 
bind niyself, my heirs,- and assigns, in thd event of sucli 
pavment, to re-convey .to. the said Wm. M. & B. D. Palme/^ 
qr their assigns, the said quarter-section of Itod,*^ 'ther said 
two negroes, household and Ijitchen fiirniture," &e,,,". con- 
veyed to me by sjiid dee.d, and immediately upon ^uch re- 
conveyance to, deliver possession thereof to the sai^ Woj; 
At. & B. D. Palmer,' or therr assigns. , ^ , . • 

''• "Given under my hand and^sal,this 2(ith'day of Ma.yyJ.845* 
V^^V^T^st': John Locke." _^ ♦ I'-Wm. i. Locke .f:seal]/''*j' 
•;. .The defendant answej'ed the bill, adu;iitting that Wn^- A. 
'Locke died in June, 1845, aiid that his will was duly probated 
on the-application of himself and hjs co-exei?utor, John Locke; 
ttiUt John Locke also died in 1848,^his will was- admitted to' 
probate, and letters testam^ntai*};t&ere<3n granted, to him on the 
6th November, 1848. He alljeges, tl>at he andiir? co-exequtor • 
h^d'a sotttement witli the Probate Court, of their administra- 
tion on Wm: A.'Lo.cke's estate, in August, 184^ ; that' com-' 
plainants never presented aiiy claim' to eitlier of them against* 
th^ estate of their- testator; nor did they present any claiipfto 
him, as. executor of John Locke, withm eighteen montKs aft'el* 
the grant of his letters testamentary, and- he had no,knowl-* 
edge whateve"p of. t|^e claim set uj\ in jthe bill*irtitil a sh^rt 
time before the bill was tiled. He denies that the deed was " 
intended as a mortgage or security for money lent, or that the 
writing afterwards 4gned b^ Wm. A: Locke was intended to 
be a defeasance ; alleges that, prior to the 19th March, 1845,- 
said Locke had loaned complainants about $2,000, for the, 
payment of which he 'held their notes without security ; that 
about that time they applied to him to borroAv more money, 
and proposed to secure its payment, together with the debt 
which they already owed him, by a* mortgage on property, 
bnt said Locke refused to make any such arrangement, and 
proposed to advance the money whieh* they needed if they 



^: 



JANUARY TERM, 1855. ZVU 

■^ . . — : — : . M- 

Locke's Exe(5ut*or v. Palmer et a,!. 

would sell and convey to him property' worth the amount of 
the suras which they then o\fed.and wisheci to borrow ; that 
complainants assented. to this -proposition, and executed said 
deed in pursuance thereof,' and said Locke tjien advanced the 
sum which they -wished to borrow, and gave up to them their 
notes which he already lield, which twi) sums together made 
the amount expressed in the deed- as' its consideration ; that 
this was 'the full value of the property at that time ; that the 
negroes were the individual property of Wm. M. Palmer, 
whcf execnted a bill of sale for ihem to Locke for the ex- 
pressed consideration of $800, a copy of which bill of sale jg 
appended as an exhibit to the answer. , • . , ;V- 

He farther alleges, that the writing exhibited tvith the bill, 
though executed by said Wm. A. Locke, is not a defeasance, 
but operates only as a contract to re-sell to complainants the 
pvpperty conVey;pd by'them, an^ that it is.-witkout considera* 
tion ; "thdt he and his co-executor returned these slaves in 
their inventory of Wra. A. Locke's estate, and they were so 
treated on the final settlement of bis estate ;• "that the settle- 
ment had between John Locke and* the complainants in 1847, 
which is referi^ed to in the bill,, and which is attached as an 
exhibit to.his ansVer, ^as-irotcojQ fined to the, transaction with 
"Wm, A. Locke, J3ut included other matters, '' and from that 
statement it would seem that John Locke purcliased the said 
slaves'from pomplainants by allojving theni on said settlenient 
•$1168 92 therefor." EJe denies. that John LocT^e ever held 
the slaves subject to complainants' alleged right of redemp- 
tion ; alleges that Jojia Locke. told him- on Ms death-bed, as 
well as a shgrt time previously, that complainants had an- 
noyed him v.ery much, in the then, feeble state of his health. 
by importunities to sell ihe slaves to some one (thinks Dr. 
Kittrell's name was mentioned) who would permit them to 
redeem at some future time, and that he had refused to do so: 
denies, also, that complainants were consulted about the sale 
of the Greene Springs. - , . ' ■ . 

On bill, answer, exhibits, and proof, the chanceHor decreed 
in favor of the complainauts, and his decree is now assigned 
i^T error., .v, 

JaMes D. Webb, for the api>ellant : 

Ix The deed is absQjute^ on its face, and the answer denies 



■ :^ r-T * — 

LoQke's Executor v. Palmer etal. 

that it was intended -aS a ^nortgage or security >for a debt. 
The complairtan,ts*,m\ist pfov'ek tliSU; it was- intended by thje par- 
ties to. be a security, aaid this proof ranst fee clear and con- 
vincing.— Chapman V. Hughes, 14 Ala. 218; nib. 247; 21 
ib:9'2] 2*Ired: B-q. .560;' 4 i\''dSfr:, The "fact t^at Wm.*A-; 
Locke gave up* to the .Palmers, when they executed' the deeU 
and bill of sale, the note!s whi^Ji he held.dn them as the evi- 
dence Of the-dieb't they* ow^dl^ hio\, »arid'(iid not*tak6*ai\y evi- 
dence of the indebtedness from them to him of the conSidera* 
tion expressed in the de^d, is a circumstance "which shows that 
it was a sale, and not a security.-— 'Robinson » v. Farelly, 16 
AJa. 4,75; Sewalln;. Henry.,.'9 26. S3: Locke could pot, if th'e 
property faifed to pay the debt- ?5n a sale, recover' the ^'^1-^ 
ance.— I^iland v.. Rajiford, 7 Ala. 727<^ The-a;iswer, derfies*" 
that Wml^ A. Locke loaned tiie complainants money on deed' 
of mortgage, or geelirity ; and insists- that Irej-efiised to ^o^so, 
and- that the cqnsideration: expressed in thoKleeduad^il] df 
SEtle'.was the' fair^falue.of <th€f,*pro^i-ty. •'^hk,quesftioH''dP 
mortgage of absolute sale^ is q^^questio'n Off fafcf.^^HQpJnns«Jj't ' 
Thompson, 2 Fbrt 433;'r yin tins ease,*it._is a mixed question 
of kwZ-CHtcf fatt,' to*be*ctetci'minec^'from' the bjU^^' answer;''' e:^- 
Bibits, and- proof. ' 1. The deed -is .ai)5oluCe on its face. '2.*^ 
The writing is nat a d^^feasance. - d, .fThe wi;/iting shows ihat 
it'Yfa^ a oonditiohal salfsv^u tu^ pdct,— *1^*^!&. 2^^,\2ly2i 
^Tt was a conditional sala,^iad npkjn considel"ation,^/e ade- 
t^te r^me^y' wa's'at -law, ajid not i^i.chaucer.y]' ..4, No wit- ■ 
n^s ^ ^xamirted'tb^Vdve ho#'Wm'.'A. ,Loak?»co-fifeid§f^d tif© 
teansa'ctioir; audit mattors ijljthowtJeMLocl^ 'treated it-^ 
ike q«estion.is, What was thc'cQ*4cactiftet^een Wm. A'. Lofleke .• 
««jid the compiaiU£yit^ ?'-*%•*. • '''^r^*' (*%\i- "M- 

, VII. Admit that .Wfii. A, Xocke Itttbhded it'as-a rabrtgag'd, 
«fnd that John Locke" so<«ndei»etGod*aud freatsd'it ; still 'thft 
allegatipns of the-b^J 8how-"\hkt.Jehri Ld^fto bongilit "the- eom- 
pla i nan tg*- equity flff Tetlem^iibrt, in th'e-sjfrv^srihe complain- 
ants allege in their bill, that uicy.lmd ti set4:l$meutVitirJohn 
Locke, on^he iitii Mayv t847,*'of th^'tFaoisactiQn with Wm^ 
A. Locke.— Langdo'n>je.Rt)aii^s Adfll't/tO-Aia. 518r Artdrew^' 
^ITobson's Adm'r, 23z5. 218. . • ' ■■•^■ 

r-TIL The claim set up iti the. bill, and g,ltempted to be e!i- 
forced, is barred by the statute of uou-claiiu. — Jolgs v. Light- 



..-;; MNUAUt f ElRM, 1855. '' ' V SH^'*; 

"■* . -- — '\ - ■ -'-*- ri. — < •;^ - '^^ ■ -^'^ ^ . t !^'*- 

Lbcke's ExeiJntor V. Pakner 5f £&.' '• ^ - 



foot,*10 Ata. 24 ; Hiiinphres r, Terrell, lib. 660; Freeman "vA*; 
Baldwhi, 13 i6. 247, 252. V • , .^ •. ' <V 

■ IV..Tte bill sh(^iild have been dismissed for misjoinder of^- ♦ 
partief^. * B. D. Palmer 4m^ no interest in-'the slaves' sought to 
be Tedeemed', except as if was acquired by T;he conditional 
"purchase frbili Wn^ A'. Loclje -by the writing of May 26, 1845: 
the'^avQg V^p^'the 'sepa^ate,,indivldu2fl property of 'Win, M*^ 
. Palmer. ' ' ;* ". 

1^^. P. Webb, contra * . ' k,^ • 

L *Th^ qnestfon presented by the pleadingfj is, whether the' 
contjuct between the Paliiners and;Loc^e, as shown by exhib- 
itgA 9tnd J^j^was' a mortgag^^ tJF-'ti'tojiditipnal sale. The 
Palmers sav it was a m'ortgage.' " Exhibit A is an absolute 
deed ; btit ex!iijjit B shows^ that;it -was agreed between the 
paa-ttes, at 'tl^e'timc of 'tlje execution of the'd^edy^tbat the Pal- 
mei-B migM redeem 'the pi'Op'erty; and Locke afterwards re- 
dace'd thq,t agreement to ■<^ritingT — Freeman v. BaldAvijp^lS . 
Ala; 25^; 4»Ken1^s qom.n'35,*l40, 141;»8 Iped. Eq. "R. 19t*:r* 
If it w'ere.^doubl^ful whether it wafe a mortgage or a salej^s, 
equity: will Jiold it a raorigage.^— Turnipseed v. Cunningham/-, 
l6*Alai 90^1,, d^xjairthortes* tliere ci fed; 8'Ired. Eq; R. 191;'^ 
The transaction* has all the badges? of a n^tA-l^agej'as laid down 

. -in thef«case^9f Eiland v.» Radford; <':^ra; 7.24, viz.,' 1st, tbe 
relation offdebtbr- alid credltc^vlj^tween the paMie*; ^d, the 
borrowing of. :m£)ndy by '|l*e Pa;lmers from X-ocke; and, 3d, the 

. disp;^rity between "tSe value of 'tlie property and tlie price. 
The,deed^and-defeaSartcS'.''mult bTe coA'stlued -together as one 
instrument and "one (?antrdtet.-«-S6*Yall;-v. Henry, 9 Ala. 24 to 
d^. ** A mortgag*e is a coiwe^ance of an estOite fo* tl^e secnrity 
/)f a debt> tlse tfef^dsance" is a. xjonditiori^iporf which tlie esr 
tate is conveyed/ usually ihsG^ed, though it niej be by a sepe-'* ■ 
,arat6 rrt^tru^ment'f arid the 'char aotSr «f tfi6 estate is deter- 
mined by^ the Intention of the pf|^rties.'to Joe derired from tlieir 
h-ngnag^.-— 4 K^nt^tTSrh., pp.'^lSS, 14Wrl41.» ■ XAicke"" bound 
himself, not tt) resell, but to re-6dnvey; finS" tfie Palmers re- 
. mained iii po-r^tssiou foy more ■fhaii'eTghte.en moijtbs. In Mc- 

. Einstfy V. t)t>T%, 1^ A^a. &?8,«4:k€i'woyd^">-^-5e^'' -was useds 
•and the court laj- great *tress ufxfn if. In Eiland v. Radford, 

• V «6^7^J•the wprd *' n-purckase'' was used, «8 also in Free* 



320 ;*> ALABAMA/- 



Locke's i'^xecutor v. Palmer et al. 



man v. Baldwin, 13 ib. 24fr; and in those cases the possession: 
■was. changed. 

II. The testimon}^ shows that the parties considered it a 
mortgage. — See the depositions of Kittrell and Boykin. The 

'»-#tateinent, or settlements made in May, 1847, calculates inte-. 
• -^rest on the debt, and gives cre3it for the sale of real estate, &c. 

•u III. The statute of *limitations cannot bar-tlie' right to re- 
deem, tis the six years did not begin t6.run.-iintjl tlie change, 
of possession in^'May, 184T.^ — Sims v. Oanfield, 2 Ala. 55a5 ; 
dFreeman v. Baldwin, 13 ib. 2^2.* * / - ,' 

•.';*-IV. ;T/he statutef of non-olaim dpes hot bar the equity of 
redemption. — Duval v. McLoskey^" 1 Ala. 745 ; Gordon v; 
Gibbs, 3 S. & M. 4^0: 11 Pick. 18-1. It is a tecli^iical trust, 
and not -a claim. — Kane v. Bloodgood^ 7 Johns. Ch. 9(>. 'The 
equity of redemption is not a claijn' to ])e presented to the - 
executor within the meaning of the statute (Clay's Digest,-p. 
195, § 17); the mortgage was only an incident to the .debt due 
from Palmer to Locke.' The statute of iioti-claim dores not 
affect the right to recover proper t}'' upon atrlaim of title, as 
in this case : this is a proceeding4o recover the slaves, and. 

, ^0% % monkey demai>d.< Can'tliB title to property, t^al; or 

'personal", 'li6 barr(?d' by tlie statilte 6fiion-claftn? — Johnson vt 
Ames, 11 Pick. lS%i ' The complainants, do net claim a debt 
from Lockfe*s ei:ec»tor,''b«t denfand-the performance of.*a,spe*.. 
cifie duty— the specihc performah't'e of a contract ; and the 
-statute of neij-claiAi is no answer'to th^nr-deqiand. . 

l^^'Bafc^ Jf«the coui'j; should hftld that the*stathte»Qf' nftn-^laim ' 
applies to an eqitity of redemption, then it is insisted, tliat the' 
proof shows tha't'^lie^PjilmeVs c^d elaii© the salne from John 
Locke? a3^,e;i:ecut<3y of Wm. A. 'iKKjke; 'apd ihat'be admitted 
their right ; and further, that the statute should have been* 
specially pleaded. — Mardis v. Stnifly, 2 Ala. 382; 

•V'^¥'' If it is insis'tediharfthe Ptdgiers should redeem all the, 
property .conveyed, the answer isjthat the land and otherpro- 
perty were sold by John Lock-c, as elecutpr of. Wm. A. Locke, 
with the consent of the Palmers, and the proceeds applied as 
a credit on the debt/ The sirle- of a part of the mortgaged 
property does not affect the right of the Palmers to redeem 
the slaves. — »JVil§on v. Troup, 7 JoLna. Ch. 37. 
. ^t^.yi. Tite " atateioent," or settlement, which is relied oU af 



JANUARY TERM, 1855. ^1 

Locke's Kxecutor v. Palmer et al. 

barring or relea&ing complainants' right of redemption, was 
not signed by either party, and merely, shows how the debt 
then stood between them. If the transaction was intended 
as. a mortgage, then the maxim applies, " once a mortgage, 
always a mortgage"; and the defendant must prove a release. 
If it was a sale of their equity of redemption, the price was 
inadequate. On these points, see McKinstry v. Confy, 12 Ala. 
682, and cases there cited. John Locke admitted to Boykrn, 
in 1848, as shown by Boykin's testimony, that he held only a 
lien on the property. If it- were doubtful whether complain- 
ants released their equity of redemption by the settlement in 
1847: .the court would hesitate to declare it, as the price stated 
w£ts only HJLSS. 92, when the testimony of Boykiii and Wil- 
liamson shows that the slaves were then worth $l,500.-^2 
Sch. & Lef. 673. *Anj subsequent parol agi'cement to pre- 
vent the equity- of redemption .is vt)id.-*-HeBry v. Davis, 7 
Johns. Ch. 42. Courts' of equity look with distrust and jeal- 
ousy on a sale of an equity of redemption. — Hitchcock's Heifs 
v. ir. .S. Bank, 7 Ala* 443-; Powell on Mortgages, vol. 1, p. 
123, note. . 

VII. The bill of sale by • Wm: M." Palmer to Locke was 
mude at thesame tirfie with the original deed, and for the satoe 
consideration. It can have no effect upon complainants' right 
to redeem, as it was not necessary to perfect Locke's title to 
the slaves ;. -and the defeasance expressly stipulates t^at comr 
plainants mighfVedeen), and that* Locke would re-convey. 

VIIL Ip. I'eply to the argument that the contract or agree- 
mefit, as.shoVrnby exhibit B, was without consideration, tYih 
answer is, that Wm. A. Locke says, in this defeasance, that 
that agreement was made contemporane<iiisly with the execu- 
tion of the original deed. 

'♦-■,',•:».■■".-• 

' aOLDTfiWi^TE, J.— The first quest?on is,, whether the 
transaction between the Palmers and William. A. Locke W9,8 
an absolute sale, or a mortgage. The first instrument which 
wa;fe executed conveys the title to the property uijconditiOnally, 
an4 would, if taken by itself,- be regarded as what it appears 
upon its face to be— an absolute sale. The instrument, how- 
ever, which wa.s executed in May, 1845, some two months af* 
terwards, by Looke, recites that it was agreed between himself 
21 



322 .?»?.v»r *ALABAMAi5rxi,i. - ^ 

Locke's Executor v. Palmer et al. 

and the Palmers, ;^t the tioie of the- ipr&t conveyance, that if 
the latter should re-pay to him, by the first day of January 
next thereafter, the an^ount of the copsideration money ex- 
pressed in the first deed, t|ien he wouM re-convey to them all 
the property therein mentioned. This recital is unquestion- 
ably written evidenjce of the very highest cliaracter against 
the party by whom it was executed, and, although it may not 
be sufficient to show that tiie parties intended the first instru-^ 
ment to operate as a mortgage, still, if the other evidence in 
thp cause, taken 'in connection with it, establishes such to 
have been the purpose of the parties, or even renders it doubt- 
ful whether a conditional sale or a mortgage was intended, 
it is enough to induce a court of equity to declare it a mort- 
gage. — Turnipseed v. Cunningham, 16. Ala. 501. 

There are, in most cases of this character, no tests which 
will enable a court to determine, with anything like positive 
certainty, whether a mQrtgage, or a ©onditional sale, was in- 
tended ; but the inclination of equity, in such cases, is always 
to Jean against the. latter, for the reason, that an error which 
converted the transaction into, a inortga;ge would noj; be as* 
injurious as a mistake which changed a mortgage into a con- 
ditional sale ; and this -leaning is strongly, manifested when- • 
ever tl^e , contract had its origin in, a proposition for a loan, 
or the relation of debtor and creditor existed between the 
parties (Crane v. Bounell, 1 Greene's Qh. 264; Robertson v, 
Campbell, 2 Call's R.42f ; Turnipeeed^v;. Cunningham, jrwpra) ; 
ttiese circumstances being regarded as amongst the circum- 
stances tending to show that a mortgage was intended. — 
Eiland v. Radford, 7. Ala. 724. 

Neither of these tests is wanting in the present case ; and 
in addition to these is the fact, that a portion of the articles 
are not enumerated in the bill of sale. The purchase appears 
to have been in gross, without ,the value of the property in 
detail being cQutemp^ated ; the re-sale is to take place, if the 
purchaser re-pays the purchase money ; and the buyer, instead 
of taking possession of the property, allows it to remain with 
the seller without hire — oj at least none is* proved — when a 
portion of it^was such as would readily have commanded hire, 
and another portien such as would have been liable to injury 
and deterioratiou in the year and tear resulting from its Use. 



JAKlTAt^Y TERM, 1855. n^ 

liocke's Executor v. Palmer etal. 



All these, and especially the possession of the property re- 
maining with the seller, are inconsistent with the idea of an 
absolute sale. It is true, that it does not appear that the evi- 
dence of the debt due from the Palmers to Locke before the 
transaction was retained, or any acknowledgment taken for 
the money advanced ; but this, though a strong circumstance 
to show that the relation of debtor and creditor was destroyed, 
is not conclusive.: — Turnipseed v. Cunningham, supra. ' Upon 
a careful examination ef the wjiole evidence, we have great 
doubt whetlfer the parties contemplated an absolute sale. 
The inclination of our mind is, rather, that security only was 
intended ; and such being the fair result of the evidence, we 
are bound by the principles which govern courts of equity in 
this class of cases, to declare the contract a mortgage instead 
df an absolute sale. 

But it is urged on behalf of the appellant, that, conceding 
the instrument to be a mortgage, it is shown that John Locke, 
the executor of William A. Locke, subsequently purchased 
the equity of redemption in the' slaves whiek were a portion 
of the pro'perty conveyed. Tlie evidence to sustain this posi- 
tion consists of the memorandum ef a settlement made in May, 
1847, ia tiie fdrm of a debit and credit a(^count, John Locke 
charging himself with the sales of the land conveyed, and the 
proceeds- or value of other property, some of which is not em- 
brajced by the deed; and the account is-balanced by giving 
credit of debts against tlie Palmers. The last item on the 
creiiit side of the account is, "Am't of Silvy and Oliver, 
$1168 92." This Recount is in the hand-writing of John 
Locke, aM not signed by either of the Palmers. They allege 
in the bill, it is true, thart, by a settlemeat witli John Locke 
they were found in arrears to the amount of $1168 92, and 
that he retained a memorandum of the settlement ; but. there 
is no positive evidence that this is the settlemeHt thoy^eler 
to,.and it certainly is entitle(Mo 'but little (if any) Voight to 
shflW that they consented to the la&t item on the credit sidfi, 
Which is not admitted by them, "-©nee ■& mortgago.'always 
a mortgage," is the rwle that wJbs correctly laid down \\\y the 
chancellor "; and under its influence, wheh the character of the 
insti'ument was^ determined, the- equity of redemption be* 
came a necessary incident, and ei^ysted With it until it 'was 



324 ;Wf ALABAMA. /f. 



Locke's Executor v. Palmer et al. 



pr,ov€d that they had parted Avith it. The testimony of the 
witness Bovkin shows the virtual admission of John Locke, 
after the settlement m 1847, of the right of the Palmers to 
redeem ; and theevidence of Dr. Kittrell is not irreconcilable 
with that right. , He was to purchase the slaves-from Locke, 
by assuming the. debt, then due, and hold them until the mort- 
gagors paid him the money, or until the debt was paid by 
their hire. This was, in effect, but little more than the substi* 
tutioii of a third person in the place of the mortgagee ; and 
the close and intimate relations which the same witness proved 
existed, between himself and the Palnmrs, might have been 
their inducement for -preferring him to become their "creditor 
instead of Locke. Equity.looks with a jealous eye upon sales 
of equity of redemptiofii-to.the mortgagee, (Story's Eq. § 1019, 
and cases there cited,) and requires them to be established by 
the clearest and most cqnvincing proof, which is far from 
having b<een done in ttie present case. ■ ^ • 

Another ground taken against the decree is, that as the 
contract was entire, the bill should have been filed, not to 
redeem the slaves .alone^.but <th« entire property conveyed. In 
reference to this, it is only necessary to say, that a portion of 
the property bad. been sold, and its proceeds applied to the 
satisfaction of the 'debt. If this, had not been the case, koi^.- 
ever, we are of the- opinion) that it is at the option of the 
mortgagor to proceed for the redemption of all or any portion 
of the property. That be seeks the aid of the court in rela- 
tiott to a part of the prcTioerty only, cannot injuriously affect 
the mortgagee, as. a decree for the redemption of that paH 
would be a bar to any other proceeding of the like natiwe 
upon the same contract. 

The statute of non-claim is also urged as a bar to the relief 
sought. That statute provides, that all claims against the 
eatateapf deceased persons shall be barred,, unless presented 
to theiCxe'cutor or administrato-r within eighteen months, after 
the grant of letters, or within that time after tlie claim shall 
accrue f with -an exceptiou in, favor of infants, married 
women, anti claims contracted out of the State. — Clay's Dig. 
195, § 17. '. We are clear, this statute does not refer to claims 
ef title, for the reason, that claims of such a charact^ eannot, 
iu any just 'sense, bo said ^abe claims against tiie "estate" of 



JA-NUARY TERM, 1855. 825 



L'oeke's Etccutor v. Palqper <?t al. 



■ < i-S . 



the deceased : on the contrary, the right to. recover is based 
upon -the fact that the. property claime'd does not belong to 
the estate,. ■ As to whether the statitte would f)ar the damages 
arising from the detention of the property as against the 
estate, it is unnecessaiy how'to detei*rairi6. ' The MTure tt) 
present the claim would not prevent the mortgagee from 
suing tlie pei'sonal representative ot the mortgagor, .in an 
action of detinue, jind recovering the pfoplferty, and at least 
nominal daraa^es.-^-Trecothick v. Austin,, 3 Mgss. Rep. 29 ; 
Johnson v. Ames, 11 Pick. .173. tn Sims v. Cq,nfieid,' 2 
Ala. 555, the bilf to redeem personal property Mas', 'in con- 
nection witli -the statute of limitations, assimilated to an 
action of detinue, and by analogy held to be barred in six 
yeaVs after adverse possession.' The same principle must 
obtain with regard* to the statute of non-claim. The equity 
of redemption is simply the right of the mdrtgagor to the spe- 
cific property after the debt for which it is bound-is discharged ; 
and iu' equity he is always considered as the real owner, until 
he is debarred from his right by judicial deftree, or in some 
other mode.— 4 KBnt's Com. 136. The bill to* redeem, in the 
aspect in wWcb we are considering it, fe governed" by the 
same principles as the bill*to forecld'se, and If the latter is aot 
affected by the statute of non-claim, the former cannot be. 
.- TJlie only remaining gr?)und of objection is, that the title to 
. the slaves was proved to j^e in one of the complainants alone, 
instead of both of them jointly. But this circumstance, as 
|he mortgage is executed by them in their joint nameg, can 
mate no difference. The bill is filed upon the eoAfaract aS it 
was made. The mortgagee, by becoming a party to, and .ac- 
cepting the joint instrument, recognized the title of the other 
party as joint, and having done -so, fhere is no good reason, 
in a suit of this kind, why he should be allowed to deny it. . 
Decree affirmed, with coste. 



• 



326 ALABAMA. V* 



Dnratmis y. Harrison & Whitman. 



DURAMuS vs. HARRISON *& WHITMAN. 

L Ip tbe adoption of the Code, the X-egisUture is presumed to have knowu 
,' the judicial construction which had been placed on the former statutes : and 
'therefore, the ^-e-euactment in the Code of provisions sabstantiaVly the 'same 

as those-contained in the former statutes/is a legislative adoption of their 

known judicial consttaction. 

2. la a suit oa a debt due. from defendant to plaintiff iudiviflually, the dte- 
Jendaut cannot set off a daJit due to him by open acsQunt from a firm of 
which plaintiff is a member. — Code," §§ 2142, 2143. 

3. Sectio'ns 2l42 and. 2143 of the Code construed. 

<•.■'■ -..•,..■ 

Appeal from 'the Circuit Cojirt of Lowndes. 
>^;Jned before the Hon. Nat. Cook. 

■itt'." ' ■ ■ y ' 

• Tliis action, was' commenced in March, 1854, and was 
fotiuded on a promissory note, of which the following is a copy: 
L\'''$loObr. ^n the'first day of February, eighteen hundred 
and {ifty-four,^wp promise to pay Henry ,G. Duramus fifteen 
L'ipdred dollars, for value received Febjuajry 1st, 18o2. 

* • (Signed) " James Harrison, 

'^''•' . ' ," James K. Whitman." 

' ■ '*rhe defendant Harrison pleaded as a set-off' an open ac- 
count due lo hint from the firm of ^bok & Co., of which firm 
plaintiff was a^n;,ember ; to which plea the plaintiff demurred, 
but the Court oVerruled his demuFrfer. The same question 
was again raised by thecharge 6f the court, and its refusal to 
charge as requested by the plaintiff. The plaintiff excepted 
to the rulings of the eourt, and 'took a non-suit ; and he now 
assigns /or error these several rulings of the court. 

't *Nat. Harris, for thfe appellantTC'^* 

■ A demand due by a firm cannot be get«off a-gainst a sepa- 
rate debt due to one of the partners. — Hoyt, Ford & Robin- 
son V. Murphy, 18 Ala. 316. 

The language of the Code (§ 2240), as to the right in which* 
the demand claimed as a set-off must exist, is the same as that 
of the old statute (Clay's Digest, p. 338, § 141) upon which 
the case of Hoyt, Ford & Robinson v. Murphy was decided, 
The debts must be mutual, not only under the old law, but 
also under the Code. 



JANUARY TERM, 1855. ^ 

Daramus v. IlaiTisoii & Wliitman. 

Geo. W. Stone, contra : 

1. There is -a wide- distinction between these two cases : 
1st, where a partnership sues, and the individual debt of one * 
of "the partnei's is sought to be used as a set-off ; and, 2d, 
where a partner sues on an individual demand, and a partner- 
ship liability is pleaded as a set-off. The one ease is an at- 
tempt to appropriate partnership effects to tWe payment of th4 
individual demandi^ of one of its merabei's ; the other is sim- 
ply compelling a partner to pay a firm debt out of his indi^* 
vidual funds. 

2. The leading case in this State on the point raised by the 
record, is Von Pheel & McGill v. Conally, 9 Port. 452, on 
the authority of which the subsequent case of Hoyt, Ford & 
Robinson v. Murphy was decided. The former case is based 
on the well-established doctrine of a want of mutuality, which, 
under the statutes then in force, was not considered perfect. 
At that time- there was no authority to sue the personal rep- 
resentative of a deceased prtrtjier, in the first instance, on a 
partnership liability : the liability to be sued, like the right 
to sue, was in the surviving pal-tner alone. But th€ personal 
representative of the deceased partner, while no action could 
be maintained against him at law on a partnership debt, 
could sue on the individual demand of his testator, or intes- 
tate. This, the court contended, disturbed the mutuality 0^ 
the debts, and on this idea alone they predicated their opin- ' 
ion in that case. 

3. The act of 1839, (Clay's Digest, p. 3^4, § 67,) which was 
passed subsequent to the decisi<yi of Von Pheel <fe McGdll v. 
Con'ally, remoVed some of th.e disabilities, but was clogged 
with qualificatijons and provisoes. The decision in Hoyt, 
Ford <fe Robinson v. Murphy, was made after the passage of 
that act ; btt it is worthy of remark, that the* decision is based 
on the former case, and no mention whatever was made of 
the statute. 

4. But it is not necessary for the purposes of this case that 
either of those cases should be assailed. This case may be 
affirmed, without disturbing either of them. The Code (§ 2142, 
last clause) now gives a perfect and co-equal right of action 
against " any one of the associates, or his legal representa- 
tives." The mutuality in the debts is now perfect ; and the 



328 ALABAMA.^' " 

. , t^ t-, , - : ~r—. 

Duramus.v. Harrispn & \Viiij;man, 

reason ceapin^. should not the rule be changed ? The statute 
now being perfectly clear, and no decision having; yet been* 
' made up«H it, will the doetrine stare decisis justify a diw'egard 
of its clear, express, unambiguous language ? . The decision 
in^Von.PheeVs case, -always doubtful in principle^ has never 
gwen satisfaction either to the bench ot" to the bai*; and in 
Hoyt, Ford & Rt)bim;on's it is not attempted to be justified. 
The recent change in the law now enables thQ court to get 
rid of the^vexed question, without disturbing former decisions. 

• . ' . . 

♦ifilJjCE, J.--The euct of 1818 contained the following pro- 
visioiiis.: ''Etefy joint bond, covenant, bill, promissory note, 
or judgment of any court of record of any State or territoi!^ 
of -the United States, shall be deemed and construed to hav^e 
tjie Bame eifeet in law, as a join-t ajid several bond, covenant, 
bill, promissory note, or judgment ; and it sh^l be lawful to 
sue out* process, and proceed to judgment, against any one or 
mar6of*the obligors, covenauttfrs, or drawers of ?iny such 
joint bond, covenant, bill, or promissory note, o"r against any 
one or more of the defendants to any such judguvent" * * * 
^ "Whenever any cause of actioH may exist against two or 
more partners, of any denomination whate^^er, it shalfbe law- 
ful to prosecute an action against any one or more of them." 
Clay's Dig. 323, §§61, 63. 

Many years ago a construction was "given by this courtto 
this statute, which has ever since been adhered to. That con- 
struction was, that 'the statute gave to the plaintiff the right 
to consider the-ebligationSv*of his debtors, when partners, as 
several as well as joint, and tO proceed againfet them accord- 
ingly ; but that this right of election was given to the plaintiff , 
and covAd not be exercised by the tiefendant. And, therefore 
it was held, that a defendant in a suit founded on a promis- 
sory note, executed by him to the plaintiff, could not, under 
the statute, a^ail himself of an open account^ due .to him by a 
partnership of which *the plaintiff was a member, as a set-off. 
Von Pheel & McGill v. Conally, 9 Porter's R. 452 ; Traun 
:y;'Oorman, 9 ib. 456. 

''•.•'About the time the foregoing decisions were made, the act 
•«£-1839 (Clay's Dig. 324, § 67) was passed, which gave a qual- 
ified right to any creditor of a partnership, to sue the repre- 



' JANUARY TI^RM, 1855. * - 32f 

L'urainiis v. Uarnsou <fe Whitman ' 

sentatives of the deceased. partner wittfout first having prose- 
cuted «the surviving 'partners- to insolvency. The decisions 
above cited -were not in any » way influenced by the act of 
1839, because it was passed after they had been commenced. 
But long since t^at act was passed, in a suit commenced long 
after its passage, the case of A'^on Pheel & McGill, mpra, w«,^ 
je-affirmed by this court in the case of Hoyt, Ford <fe Rob- 
inson V. Murphy, 18 Ala. drH. 

This lait decision was made in 1850. On the 5th February, 
1852, the act was passed which adopted the Code ; and un-.* 
der that act, 'the Code went, into effect on the 17th day of 
January, 1853. * • 

Section 2142 of the Code" provides, that any one of the 
partners, or their legal representatives, " may Be sued for the 
obligation of all. Section 2143, prbvides, that "when two or 
j||Baore persons are jointly bound, by judgment, bond, covenant, 
or promise jif writing of any description whatever, the obli- 
gation or prdmise.is, in laio, several as well as joint ; and suit 
may be instituted thereoil against' the' legal representatives of 
such as are dead." Section 2240 provides, that "mutual 
d^bts, liquidated or unliquidated demands not sounding in 
damages merely, subsisting between the parties at the time of 
Buit brought, may' be set oif, one against the other, by the de- 
fendant or his personal representative, whether thejegal title 
be in the defendant or not." " • • 

Although section 2240 is, in some respects, different from 
the former law as to matters of set-off, it is substantially the 
^ame as th^ former law, so far as it* has any bearing upon the 
case now under consideration. This is not denied by the ' 
•counsel of the appellees ; but he conteinds, that conceding this 
,to be so, that section, taken in connection with sections 2142 
and 2143, ought to be held sufficient to justify the allowance 
of the set-off relied on in the court belo^. In this, we differ 
froni the counsel of the appellees. * . 

The right to prove a set-off at the trial of a cause, and thus 
diminish or defeat a r^covery^ did not exist at the common 
law, but is the creature qf the statute. The extent to which 
this right is allowed, must be determined by reference to the 
statute. A set-off in this State has never been supposed to be, 
in all respects, like a sjiit, although it is in the nature of a 



330 ' ALAT^AMA. 



Duramus v. Harrisoa & Whitman. 



cross action.- Thus a set-off cannot be replied to a set-off ; 
defendant relying on a set-off of an account under the sum of 
one hundred dollars, was. not allowed to prove it by his own 
oath, although, if he had been plaintiff' in the suit on the same 
account, he could, under the act of 1837, have proved it by 
hie own oath. — Hall v. Gook, 1 Ala. 629 ; Hudnall v. Scott, 
'2 i6. 569; Bennfett v. Armstead, 3 ih. 507. 

We must take it for granted, that at the time the Code was 
" adopted, the Legislature knew> the construction which had 
been placed on the former statutes above referred to; by the 
several decisions above cited. , And if, with this knowledge, 
the Legislature has re-enact6d in the Code provisions which 
are substantially the same as those contained in the forfner 
statutes, suc*^ re-enactment is a legislative adoption of th^ 
known construction of those provisions. 

According to the decisions above cited, tWact of 1818 and<^. 
the act of 1839, taken together, did not, ^wr 5fe, change the 
^obligations of pscttners to pay an account -due by them, from 
joint to joint and geveral. But^^iose statilfes gave to the 
creditor of a partnership "merely the right' to sue, and by the 
^it alone to change the nature of a partnership obligation 
from joint to joint and several." In other words, the de- 
cisions cited settled th'e'rule, that a statute which authorized 
the Credifcor of a firm to sue any one or more of the partners; 
Or their legal representatives, did not, per se, make the obliga- 
tion of partners several. — Smith v, Mallory, 24 Ala. 628. 

As section 2142 of the Code does not declare that the obli- 
gation of partners is several, but merely authorizes all to ^ 
sued in the common name, or any one, or their representa- 
tives, to be sued for the obligation of all, we feel bound to 
apply to it the rule above stated, which was settled before the 
adoption of th6 Code ; and to hold, that there is nothing in 
that section, which, per se, changes the obligation of partners 
from joint to joint anxl several', or justifies the ruling of the 
court below in allowing tlie account against the firm as a set- 
off against the plaintiff, who was a member of that firm. 

We. are confirmed in the correctness of our conclusion, by 
exanjining the provisions of sTection 2l43. That section ex- 
pressly declares, that when two ot more persons are jointly 
bpund, by judgment^ boTidj CQ^gfy^^ OT,promi$e in writing of any 



JANUARY TEEM, 1855. ' 331 

DiiViimus V. HarripoB & Whitman. 

description whatevel*. the obligation or promise Is, in law, 
several as well as joint." Now we ask, why w^ there an 
omission to declare in section 2142, that the obligation of 
partners shoiUd be severed as well as joint? This omission is 
significant, when we compare it with the former law and the 
decisions thereon, and with the explicit declaration found in 
section 2143, that certain specified joint obligations should, in 
law, be deemed several as yreW as joint. 

Upon a careful examination of sections 2142 and 2143 of 

the Code, and the circumstances un^er which th§y were 

adopted, .we pronounce their true construction to be as fol- 

. ^ lows : Q'he'creditor of a firm may, if'he Riooses, commence a 

suit against any one of the partners, or his, representatives, 

' fof the debt of %% firm, whetlier it be due % iiccount or 

*otherwise. The eSect ot a suit so commenced \s, t6 chsmge, for 

^.'all the purposes of that siiit,^;he obligation of the partners 

from joint to' joint and'severalj by virtue-* of section 2142. 

Although no such suit is brought, yet if the firm is bound by 

a ^^ judgment, bond, covenant, or promise, in writing of any 

description whatever, the obltgatibn is, in law, several as well 

as joint," under Section 2143 : and,- therefore, may be used as 

a set-off in a suit on a demand not sounding in damages 

merely, broug!it by any member of the firm against the owner 

of such judgment, bond, covenant, or promise in writing. But , 

in such a suit, commenced by a member of the firm, neither of 

the sections above cited confers upon the defendant the right 

■ to use as a set-off an accoujit due to him by the firm of which 

- the plaintiff is a member. 

As the demand set up as a set-off ih the court below, was 
not a judgtnent, hand, covenant, ot promise in writing, against 
the firm, but only an account, the court below erred in charging 
that it could be allowed as a set-off in this p-ction ; and for 
.this error, its judgment is Veversed, the non-suit taken below 
set aside, and the cause remanded. 



'feif; -ift vi''-jTj>f^«'$f0 »%til;.v j|.yl'g;A4gi»^ y^ 'i-- 






. V: 

332 ALABAMA. 



4t/ 



•Ozley et al. v. Ifeelheimer. 



OZLEY ET AL. vs. IKELHEIMER. A 

1. A deed of gift, conveying personal property to a manned woman '• for her 
own use and benefit alone"', creates a separate estate in her, and excludes 

■ her husband's marital rights. 

2. Where a bilMn equity is filed against husband and wile to subject the wile's 
"separate personal estate to the payment of a note executed by her, if the 
defendants in their answers admit the existence of a separate estate in the 

• ^ wife as-charged in the biH, the court will not inquire into the regularity of 

*" the execution of the deed*under which she holds. 

3.. If a married woman ^ves her written obligation for the payinent«f mon«yi 

it will be presumed that she intended thereljy to charge her separate personal 

/ (estate ; and therefore, if her creditar files a bill in equity to obtain payment 

out of her separate personal estate, it is not necessary that he should aver 

or prove her intention to charge that estate. " i " > 

4. If the defendant does not take advantage in the court below,' by plea or de- 
murrer, of the wAn4 of proper parties to the bill, the objection cannot avail 
on error, unless the absent parties are indispensable to the rendition oJ a 
proper decree. 

6. One who signed the notg as cfr-maker with the wife, though he would be a 
proper party to a bill filed by tfle cre«litor»to subject the wife's separate estate 
to its payment, is not an indispensable party, when it is averred that he is a 
non-resident and has no property in this State. 

Appeal frcrni the Chancery Court of Shelbj^. . 'J 

•• Heard before the Hon. James 'B. ^lmik. 

This bill was filed in September, 1850, by Edward Ikel- 
heimer against Gilbert Ozley and> l^ar'thena his wife. It 
alleges, that Mrs. Ozley, together with one Thomas Cost, exe- 
cuied certain promissory notes payable to complainant, 
aLmiounting in all to about $800, which were still due and un- 
paid ; that slie has a " separate estate in certain personal 
property, consisting of thi'ee negroes tiud other things of less 
value, as will' appear more fully by a copy of the deed of gift 
of said property which is hereto appended, and marked ex- 
hibit No. 2"; that said Cost is a non-resident of this State, 
and has no property within its limits out of which to satisfy 
said debt, or any part thereof; "that Mrs. Ozley absconds, so 
that the ordinary process of law cannot be served upon her, 
and has with her the larger portion of her property, and will 
remove the remainder, unless restrained by the order and 



JANUARY TERM, 1855.1^ 333 

• Ozley et al. v. Ikelheimer. 

process of this court ; and that thereby complainant will lose 
.his debts, Qr have to sueibr it in another State." The pray0tr ^ 
.of the bill is for an attachment, for a sale of so much of the 
property attached as may be sufficient to satisfy complainant's 
debt, and for general pelief. 

The deed of gift, as ■exhibited, purports to be executed by 
'*Z. Cross", and conveys the property specified in it "unto 
Barthena^Ozley, for the respect that said Cross has foi- her 
and her heirs", " to have and to hold for her own use and 
benefit alone." The nameof " Z. Ozley" is signed to the deed 
as the grantor ; but' the clerk before vs^hom it was acknowl- 
edged certifies, that " Z.' Cross personally appeared", &c.^ 
" and acknowledged that he signed, sealed, and delivered thes^ 
above deed of gift." • . , » 

Gilbert Ozley answered the bill, alleging, that he and his 
said wife had separated before said notes were executed, and 
that a bill for divorce was pending between them at that 
time; admitting that his wife, at the time she signed the 
notes, had several negroes in her possession as her own pro- 
perty,' "-to which respondent s^ets up no claim whatever, and 
has no objection to their being made subject to the payment 
of her debts ; and respondent insists, that he had no. agency 
in giving said notes, and is in nowise responsible for the same, 
as he gave notices in writing, at the time he separated from 
said Barthena, t)f safd separatiou, and notified all persons not 
to trajde with her upon his liability." • • 

Mrs. Ozley also' filed an answer, admitting the execution of 
the notes as charged in the bill, but averring that she only 
signed them as surety for Thotoas Cost, who was her son ; 
also admits, " that at the time of, and before the execution of 
said notes, she was a married woman, the wife of Gilbert 
Ozley, and that she held a separate estate in certain personal 
property described in a deed of gift to her, and that exhibit 
No. 2 appended to compT!&,inant's,bill is a correct copy of said 
' deed of gift." ' ' • • 

On final hearing, the chancellor granted the relief prayed 
by. the bill, and his decree is now assigned for error. 

JJs. E. Belser and Saml. Leepeb, for the appellants : 
- .1. The inettument referred to in the bill as showing -that 



•if 
334 AXABAMA. 



Ozley et al. v. Ikelheimer. 



appellant has a separate estate, whicb is .set forth as part of' 
the bill, shows that she has not a separate estate. "It is not 
enough that the body, of the instrumefit was drawn in the, 
proper form : it is required to be signed and sealed, before itj 
could become the deed of any one ; and the signature and seal 
of one man could not make it the deed of another." As the 
body of the deed shows it was intended to bo executed by 
"Z. Cross", and as it never was .executed by him, nor by any 
person for him, but was signed and sealed only by " Z. Ozley", 
it is inoperative. — Townsend v. C6rning, 23 Wend. 442; Car- 
ter V. Doe ex dem. Chaudron, 21 Ala. 72-85. 

2. Before the appellant could be 'charged with the payment 
of the claim of the appellee, it must appear (by allegations 
and proof), first, that the property mentioned in the bill was 
her separate estate ; and, secondly, that she designed to charge 
it with the payment of the promissory notes set forth in the 
bill.— Conn v.\Conn, 1 Maryland Ch. Rep. 212-217. 

S. Even if the property was her Separate estate, and she 
designed to charge it with the payment of said notes, it was 
erroneoijg to make her separate estate *liable for the whole 
claim, because the insolvency of Thomfis Cost, tlie^ principal 
debtor^^is neither averr,ed nor proved.— ; Conn v. Conn, 1 Md. 
Ch., supra, 219. " ' ' • < 

4. As it is averred in th6 answer that she is only the surety 
of Thomas Cost on said ootes ; as- that 'averment- is proved.; 

-• and as the said Thomas Cost is not a party to the bill, al- 
though he is the principal debtor and a necessary party, — the 
d€cree for complainants fc erroneous ; and the bill should be 
here dismissed, because, after the fact was averred in the an- 
swer and duly proved, he went to trial without making Cost 
a party.— Batre v^Auze's Heirs,5 Ala. 173. The complainant 
ought to have made the principal a party, in order that the 
surety might be protected 1)^ the decree, and not be compelled 
again to litigate- the indebtedness alleged. -^OHver v. Dix, 1 
Dev, &, Bat. Eq. 15«; Dozier v. Dozier, ib.WQ; McM'aken v. 
McMaken, 18 Ala. 576; Woodward v. Wood, 19 ib. 213. 

5. In the absence of proof of the value of the: separate 
estate, or of the value of the hire of the slaves^, the decree for 
the speedy sale-of the slaves can«ot be sustained. — Bradfoi'd 
V. G2;eeiQway, 17 Ala. 797 ; Collijis v. Lavenbei'g, 19 ib. 682. 



JANUARY TERM, 1855. 335 

— ^ .. . , — . — . 

• Ozley et al. v. Ikelheimer. 

6. The bill cannot be sustained under the act of 1846 giv- 
ing attachments in chancery. — Morgan v. Sprague, 23 Ala. 
524; Wright v. Cogswell 1 McLean 471. 

7. The allegation in the bill, and the admission in the an- 
swer, th^t it was her Sjepayate estate as shown by the deed 
attached as exhibit 2 to the bill, is not the allegation ot ad- 
mission of t/ie fact that it was her separate estate, but is an 
allegation that the said deed showed it to be her separate estate. 
It is the allegation and admission of mattfer of law, and not of 
fact merely. Such allegations are not good as pleading, and 
such admissions are not evidence. — Crockett v. Morrison, 11 
Misso. 3 ; Wright v, Cogswell, 1 McLean. 471* 

8. ^he bill is fatally defective, and no admissions in t^e 
answer and no evidence can help "its defects.-»;-Sandford v. 
Ochtalomi, 23 Ala. 669. 

White -& ^arsons, contra: 

A married woman may bind her separate" estate by a promise 
in writing. — Roper on Hus. & Wife, vol. 2, p. 24 ; 2 Story's 
Eq., §§ 1398, 139©, 1400 ; Forrest v. Robinson, 4 .Port. 44. 
As to her separate estate she is regarded as &, feme sole. — 
Bradfqrd v. Greenway, Henry <fe Smith, 17 Ala. 797; Jacques 
V. M. E. Chtirch, 17 Johns. 548. 

If the bill alleges facts which, in law, amount to an allega- 
tion of intention on the part of the wife to bind her separate 
'estate, it is the same as a direct allegation of such intention. 
- The exhibit to the bill is evidently a mistake as to the sig- 
nature. The deed purports on its face to be the deed of Z. 
Cross, and. the clerk certifies that Z. Cross appeared before 
him and acknowledged, its execution.- Such a mistake will 
not be regarded, or will be considered as amended in this 
courit, — McBroom v. McBroom, 19 Ala. 176. But if it is not 
a-Maistake, respondents cannot now raise any objection to the 
deed, as they admitted- in their answers that she held a sep- 
arate estate under the deed. — Toney v. Moore, 4 Stew. & P. 
347; Harrison v. Mpck, 10 Ala. 185, 194. 

That Mrs. Ozley liad a separate estate i^der the deed, see 
Strong V. Gregory, 19 Ala. 148. 

Thomas Cost was not a necessary party to the bill, even if 
he had been within the jurisdiction of the court ; and the all§- 



S36 ALABAMA. 



Ozley et al. v. Ikelheimer. 



gation and proof of his non-residence, and of the fact that he 
had no property within the reach of the court, is, a sufficient 
r excuse for not making- him a party.* — 2 Port. 3*70 ^ 20 Ala. 
824; 10 Wheat. 168; 8 ib. 451, and note on pp. 454-6; 12 ib. 193. 
Tlie notes are joint and several, and the creditor's remedy 
was, as he might elect, against either one or both ; and any 
defence which could have been made by the princi'pal might 
also have been urged by the surety in this suit. 
!■ The bill is filed in two aspects — -urider the act of 1846 au- 
thorizing equitable attachments, and jx) subject the separate 
estate of a married woman to the payment of a debt contracted 
by her while covert. There is no intervening trust between 
l^r and the estate, and no joint estate, in the property. A 
court of equity may render a decree against her as though 
she were sole. • , 

CHILTON, C. J.— The bill is filed by the appellee to '^ub- 
* ject the separate g^tate of, Mrs. Ozley, a married lady, to the 
payment of certain note^ execnted by Thomas Cost and her- 
self to hinf. It charges that, at the time of the execution of 
the notes by her, she "was- the wife of Gilbert Oaley, and had 
a separate estate in thy'ee negro •slaves,* aad other personal 
property, which it is said wnt^ more fully appear by a deed of 
gift exhibited with the bill and made part thereof. This deed 
purports to be, a deed of gift from Z. Ci'oss, but is signed 
" Z. Ozley", and tho-clerk who certifies to the acknowledgment 
says, in his certificate, that Z. Cross appeared before him and 
acknowledged the same to be his deed,- 

If the deed had been executed by Crogs, there is no doubt 
that it would have created a separate estate in Mrs. Ozley, 
the property being limited " to her use only ", which would 
t&chide her husbamd as eftectua!ly as if the term "separate " 
^ had been employed. The intention clearly appears to create 
a separate estate ;• and where this can' be gathered from the 
instrument, the par.ticular language in which it is couched be- 
comes unimportant.T—See Jenkins v; Mc^onico, at the present 
term, and cases tli^ro cited. • ' • 

It is supposed, however^- by. tb.e counsel for the appellants, 
that because €his deed is not properly executed, the court 
^uld not regard Mrs. Ozley as. ppssessed of a separaite 



JANUARY TERM, 1855^ S3t 

Oaky et al. v. Ikelheimer. 

estate, — \he bill referring to it as vesting such estacte, and the 
answers of both the husband and wife admitting that the wife 
has a separate property in the chattels attempted to be con- 
Tjeyed by it, as appears by the deed. 

••t-JCt is a sufficient answer to this objection, that there is no 
■" issue made by the pleadings as to the existence of a separate 
estate : its existence is an admitted fact in the case ; and, 
under thesa circumstances, we will not stop to inquire into 
the regularity of the deed under which the defendant (Bar- 
theua) holds the property. We must assume that, although ,. 
the wrong name is signed to the instrument, it is in equity 
the deed of thciproper person — that is, that there exists a 
mistake in its execution which the court would rectify, and ^ 
the concessions of the parties are predicated upon the equitable 
maxim 'that the Chanceiy Court may consider that as done 
which ought to have been done, and which the court upon a 
proper application could order 'to be done., Even laying the - 
deed out of view, as beiilg informally executed, it is coHipetent" 
ta, limit a separate estate by a parol gift ; and as the true in- 
j%\|iry, in all such pases, \s v,'hetber the wife has a separate 
Qfntate whicli.itiay-.,ltfe charged with the demand sought to be 
enforced Against it, and not so much as'to the manner of its 
creation, we shpujd not be disposeci tq turn the complainant 
ou{,o,{c>aurt,-if be had properly f^verred the f^M, as to the ex- 
istence of a separate estate, although he may ha>e mistaken 
the evi(Jence of the existence of that fact. We repeat, how- ^,«. 
ever, that the existence of a separate, estate. is an admitted • 
ft\,ct in the case, and -^vhether it is created by the deed, as the 
ciomplainaut alleges, or exists otherwise, is a matter of no 
consequence. ' The defendants admit that the deed does create v. 
such estate, and it is not ibr the. court to refuse a decree be- 
cause it oannat understand how it i$ the deed creates it. 
There are, doubtless, such facts con p^cted .with it, dia^'m equity 
would make it available for this purpose. 

But it is said, it is neithtr averred nor proved that Mrs. 
Ozley, in signing the notes, intended to create a charge upon 
her separate estate. We think the law is now well established 
in England, (and we have followed' the English doctrine upon 
this subject,) that where a married woman gives her written 
obligation for the payment of money, it shall he intended that 

■*- • ' ♦ 



338 ALABAMA. 



Ozley et al. v. Ikelheimer. 



the parties did not do a useless thing : the obligation was 
intended to create a liability, so far as she was capable of 
binding herself. Being a married woman, she cannot bind 
herself personally, either in law'or equity^ so as to justify a 

• decree which shall bind her personally. — Francis v. Wigzell, 
1 Madd. Rep. 264. . As, therefore, Mrs. Ozley designed by 
signing the notes to accomplish .something, and nothing could 
be accomplished if her separate estate is not liable, upon the 

^ • maxim, '' ut res magis vakat quam pereat ", we are forced to 
^ . the conclusion that she intended to chc^i-ge her septirate per* 
,. sonal estate. ' '■•'', 

The doctrine, .which for sdmetiirie obtained in the English 

▼ chancery counts, that th^jgtfaerah engagements of a married 
woman in writing operate and are valid only as appointments 
madp of her separate estate {see 2 Atk. 37^ ; 2 .Ves. 142; 

^ §'.Mjl<id: fi^fib. ^^9^, ha$ been jiistly exploded ; and it appears 

'4 now'to'-be the settled doctrine of those courts, that n feme 
^?»e/*/,- as to her separate estate, can enter into contracts in 
tl>e s?lme'maHncres a, feme sole, and thatiier contracts, whether 
written or vei'bal, are equally binding, .and do not operate 
merely upon the principle of appointm^ts. Such was the 
"doctrine asserted by Lord Chancellor Brougham, in the elab- 

■ orate case of Murray v. Barlee, 8 My. & Keene 223 : see, also, 
Owens V. Dickinson, 1 Cr. &'Phil. 53; 1 Lead. Cases in Eq. 
(Hare &, Wallace's notes) -397, ct seq. 

!• j|^i. We entertain no doubt* as _ to the carrectriegs of the chan- 
' cellor's decree upon this point. 

In relation to the objection that T^homa^ Cost is. liotmad^ 
a party to the bill, it ig ontly necessary to observe, that the 

If objection was not raised I'n any way in -the court below, «fnd 
that it is well settled such defect must be taken advantage of 
by plea or demurrdr, and if -it is hot -tkiis brought to the 
knowledge of the court below, this tourt will not reverse for 
want of a proper party, if he be not indispensable to the ren- 
ditioti of a proper 'decree. In tfiis . case, Costi might very 
properly have been made a party, but he is not an indispen- 
sable party. A decree can as well be made without, as with, 
him before the tovtvt. The case of Rot)ert Conn v. James 
Conn, 1 Maryland Ch.Ilep. 212, 210, if it be conceded to be 
correct, does not apply to the case before us j for, in tljis case, 



JANtJARY TERM, 1855. ' ' 8^# 



Tuyuey's Adm'r V. Morrow. 






V 



it is averred by tEelaill, and admitted iti th© answer of Bar- 
theiia Ozley, that Cost' is a npn-resideftt of tins State, and has 
no property in the State lia&le to the demand. Such leing 
the case, the party coinithiina'nt mi^lit well have omitted to 
make him a party' as »io practical i)nrpose could have been 
attained by bringlnji- him before the court. — Marr's Executor 
V. Southwick, 2 For. 351-370, and cases cited. 
'■There is no error in the decree, aud it is consequently affirmed; 

" A»'-*^- -,- . '•■ • •■ . ' ..' ^- -^ :, »^ . 

.■^•**% 

1. A «mple coatract creditor, fritbo^if a Ifen, cannot go into equity for the 

colloctiou .of ills 4'i'Jt ; 'ahd .therefore, where ihe purchaser of i^lave6 at 

sherifl's sale left tjiem in tlie' posj^essioa of Ihe clt»feH(]aut ia executioiH under 

I ft-wVitteH agreement thattfie latter hHjjht be allo\ve(i,to re-puvchasse'them at 

\X stiptilatwl.'^»m withM..a tepcclfled tirap ; aad flie defendivut borrowed Ihe' 

,'\ri)10aeyAnd paid it over to the pur(JU«lser, who 'afte)f\vard§» without defeiidatit's 

. - aesQjit, assigaed "hi^bill, of sale fFom the shesiff to the Render, — ieid, that 

. 'th^ facts were not sulficient to enablT; the assignee to assert a cl&im to the 

■ •;\laves iii equity for tl^e re-imbursenieut of the money Which he had adtaaced 

*4cr the* defendant. ♦ • * 

'•■-'• ■•'■•;% 

'■ AppEAL'fronj»the. Chancery Court of Morgan. ■ y^''^ 

Heard before the Hon*. JE. p.vTowNES. 
• . • .. ■■ *•• -.^ • 

4' D-. 'C. Hu,\r'PHREY», for- the appelknt. 

■ j|'«os. M. Peters, conitrtk. 

•* - ■« 

i,*LIGON, J„ — The bill ia tliis case was filed by the appel- 
kint, as administrator of Daniel larney, deceased, for- the 
purpose of enjoining the execution of a judgment at law, and 
to assert and establish a trust in favor of his intestate in cer- 
tain slaves named in the bill, in which the defendant Morrow 
claimed the absolute property. . . 

•jjptlt appears from the record, that the slaves in controversy 
once belonged to Morrow, and were sold by the sheriff of 



'•"4^. 



.«(• 



340 ALABAMA. 



Turney's Adm'r v. Morrow. 



• Morgan county by virtue of executions in his hands against 
the goods of Morrow, and were bought by one Burlerson, "\vho ■ 

■ left them in the possession of Morrow, under a written agree- 
ment by which the latter, or any person for him, was allowed ' 
to re-purchase them at a stipulated sura to be paid to Burler- 
son on or before the 1st day of March, 1851. It further ■' 
appears that, about the 1st March, 1851, Daniel Turney, the 
appellant's intestate, loaned to Morrow eight liundred and 
fifty dollars of the money paid to Burlerson on the re-purchase ' 
of the slaves, and that Burlerson fissigued to Turney the bill 
of sale for the slaves which he had taken from the sheriff at . 
the time of his purchase ; but this was after he had entered. , 

'% ittto the contract for the re-puriihase as above stated, and after 
the slaves had been delivered to Morrow under that contract," 
and the sum stipulated by it had been paid to Burlerson by 
Morrow. As far as the record discloses, this assignment was 
made wdthout the assent of Morrow, who, from the proof, 
does not appear to have participated in it. It further ap- 
pears, that Morrow proposed trf give the intestat« a lien on 
some of the slaves, to secure the payniejit of the sum of eight 
hundred and fifty dolors which the latter had loaned him^ to 
enable him to eilect the re-purchase from Burlerson ; but that 
this offer was never fully accepted by Daniel Turney, nor any 
terms agreed upon or reduced to writing to carvy out tho 
propofsitioij made by Morrow. Upon this ease, the chancellor, 

, M the hearing on the pleadings and proof, dismissed the bill, ' 

' without prejudice, and from.liis 4eBreey«in appeal isproseeuted ' 
to this court. • .'/",-'.. ■\*'. ./:!•'-• ^ "• . ' 

The decree is correct. The appft\]ant's intestate had no 
lien whatever on the slaves, ^nd oceupi«s no higher poeition 
with regard to them than-any othg* 'simple contract creditor 
of 'Morrow. There is no trust raised in his favor, by the 
mere fact that Morrow ysed the money which he bbrroi^d 
from the intestate in paying Burlerson* the sura necessary to 
re-purchase the slaves. Nor is any trust in his favor created 
by the proposition or offer of*MoiTGw to give him a lien on 
the slaves,'to secure the re-jmyment of the sum loaned to him 
by Turney. Until this ofier was agreed to by Turney, there 
was nothing to hinder Morrow from withdrawing it at any 
time he pleased ; and there is no proof which shows that the 



•* # • ^^'W*. 



JANUARY TERM, 1855. 



Nelson et al. v. Dondarant et al. 

hcus penitentm was ever taken from' him during the lifetime 
of Daniel Turney, the intestate. 

The assignment of the 1)ill of sale from the sheriff to Burler- ' 
son, by the latter to tlie intestate, confeiTcd no right in th§ 
slaves on the assignee : first, because at the time of the traiilk 
ffer the slaves were not in the possession o1' Burlerson ; and, 
secondly, because he had, before it was made, parted with all 
claim he^eyer had tp thBin, by »eceiving the sum which, by his 
agreement witli MorroM', the -latter was to pay for their re- 
purchase. As Morrow had the possession of the slaves at the 
time the money on the re-purchase was paid to Burlerson, that^ 
possession drew to it the title, so soon as the payment of the ^ 
purchase mon^y W^ coiopie^^ .aCild Burlerson h^d ngthiHg 

to convey. . "'"^^'^'"^''"Ti^: " '"^ ' 

The mere assign nient of a paper title for personal property, 
when the property is in posses3ion of another under such cir* 
cumstances as are t^pwn in this case, confers* no right or 
claim, eithqr in law or equity, on the assignee.. 

Upon the whole, this must be regarded as an effort of a 
siiil{>le contract creditor, without a lien, to go into equity for 
the collection of his debt, >vhich cannot be allowed.* r,j 

, Let the decree of the chancellor be affirmed, at the cost m 
..tbe appellant in this court, and in the coui-t below. 



NELSON ET AL. vs. BONDURANT et al. 

% In trespass tib recorep damages for injuries ipflicted on a ^ave, whieb caused 
his <leath, it is not necessary to aver with particularity in the declaration 
everything that was.doue on the prosecution lor the felony, nor to state what 
witnesses appeared, or what testimony was offered : an averment that the 
defendants were prosecuted before a justice of the peace, by whom they were 
required to enter into recognizances for their appearance at the next term 
of the Circuit Court to answer the felony, and that at that term of the court 
they were duly prosecuted before the grand jury, who made diligent inquiry 
into the charge, but found no indictment against any of the defendants, is a 
sufiicient allegation of the prosecution. 
^^ A plea, averring that tiie defendant, at the time of the alleged trespass, had 



342 ALABAMA'. ^ ^^'' ^ 

■ ■ < 1 ■ ".' • -- — 'r-' ■ ■ • ■ '' 

' .- ',' -> '• ' Nelson et al. v. Bondurant fet al. 



ie rightful and legal control and poBsession of the slave, under a contract 

*» .of hiring from his owner; that the slave refused to obey him. and forcibly 

. . fj^^j^esisted the exercise of -his lawful authority ; and that he only inflicted such 

proper and moderate chastisement as was absolutely necessary to overcome 

Fueh resistance and to subdue the ^lave, is a full defence to such action. 

8-. The wrongful sustaining of a demurrer to a special plea, when the defendant 

•f had the full benefit of «U tl^e fe^jts alleged in it under his other pleas, is not 

^ a reversible error. . , 

*4- Trespass may be maintained by the owaer against the hirer of a slavie,' fbr 

an illegal and forcible injury, causlfig the slave's desCth, comraitted whtlc in 

the hirer's possession under his contract. . ' , 

5. In the absence of an express stipulation, the owner delegates to the hirer 

the same right to punish and correct thp slave which he himself has ; but if 

^4| ' ,th.e punishment inflicted by the hirer, when considered with a just regard to 

?'^ all the attendant circumstances, ie either cAiel or barbarous, he becomes ji 

• ^-^ trespasser ab initio, and liablelio damages at the suit of the owner. 

.■<. But the mere fact that the slave was tied when the punishment ^jis jnflicte^, 
•»;,>jind so secured as to prevent resistance on his part, does net aflfect the rights 
'•* or liabilities of the parties. 

Appeal from fhe Circuit Court of Perry. 
Tj?ied before the Hoa. Nat. Cook. 

'•^Trespass vi et armis by ^lin F. Bondurant, Sarah Kon- 
'durant, Mary E. Bondurant, James K. Armstrong and Lucy 
his wife, and Rebecca 'Bondurant, suing by her neit friend 
John F. Bondurant, against Samvfel Nelson, Joseph Goul^man, 
Z. B. John, Andrew Jackson, 'and Richard M. Booker, "to 
recover damages for the unlawful beating and killing by said 

* defendants of a certain slav6, named Sam, the property of the 
said plaintiffs." The declaration contained two counts, the 
first of wJiich, after alleging tike commission of the trespass 
complained of and the slave's death In consequence thereof, 
a\:erred, that afterwgfr.ds "the said defendants were duly pros- 
ecuted l^efore one Young L. Roylston, then being a justice of 
the pesace in and for Said county, foV'thcf supposed felbnious 
killing of the sai(J slave ; .that afterwards, to-wjt," <fec., " tiie 
said defendants, before, and ih pursiiauce of tl^e.ovder and 
requisition of the sa^'d justice of tiio peace, entered into their 
recognizance for their appearance'at the tlien next term of the 
Circuit Court in and for said, county, to be held on the filth 
Monday after the fourth Mopday of September* A. D. 1850, 
to answer the State of Alabama to the charge of committing 

th3 fvjloay afarcsaid J that afterwards, to- wit," at said ter» 



JANUARY TERM, 1856. • 84d 

.-.i., — ,— - — — . . . .-_ — . 

Nelson et al. '^. 13ondurant et nl. 

of said Circuit Court, "the said defendants were duly prose- 
cuted before Uie grand jury of said county, for the supposed 
felony aforesaid, and that said grand jui-y did then and there 
diligently inquire into the said charge against the said defend- 
ants, and did then and there find and prefer no bill of indict- 
ment aga^st the said defendants, or either of them ; and 
plaiutiffs my, that said prosecution of these defendants, upon 
the charge aforesaid, was then amd there ended and deter- ' 
mined, and that no bill of indictment was found, either at said 
term w at any other subsequent term of said court, nor any 
crther prosecution commenced against these defendants, or 
either of them, for said supposed felonious killing of saiJI 
slave." In the second count the allegation is, " that said de- 
fendants, ^t a tei'Daof the'Cireuit Court held in and for said 
county on the — day of — — , A. D. 1850, were then and there 
duly prosecuted before the grand jury for said county, for the 
supposed felonious killing of said slave, and that the said grand 
jury did then and there diligently inquire into the charge 
aforesaid, and did then and there find no bill of indictment 
therefor against said defendants, or any or either of them ; and 
plaintiffs aver, that the said prosecution has been ended and 
determined, and that no bill of indictment has been preferred, 
or further prosecution had '\ &:t^ ' 

The defendants demurred to each count in the declaration, 
but their demurrers were overruled, and they then filed several 
pleas ; the defendant Samuel Nelsoai pleading separately^ 
1st, the general issue, and tHrfie other ^eas, substantially as 
follows : ' • . 

2. That before.aad at the time of the alleged trespass on- 
the slave, this defendant owned, and had rightful and legal 
control, and actutil possession and management of said slave, 
by virtue of a contract of hiring fram plaintiffs for the year 
i.'i85l), and that said term of hiring had not expired when said 
' supposed trespass was committed ; that the said slave rau 
away and escaped from him< and refused to obey his law ul 
and reasonable demands, and went to the plaintiffs ; that said 
John F. Bonduraut, acting for himself and his co-p!ainti£s, 
then whipped the slave, and committed the said supposed 
.trespass complained of in the declaration, and returned said 
slave to defendant ; tliat the slave still refused to obey de- 



B44 - ALABAMA. 



Nelsoa et aL v. Boadurant et al. 



fendant's lawful commands, and forcibly resisted the exercise 
of his lawful authority, and endeavored witli a kniffe and axe 
which he seized to cut and" strike defendant aiid'all within 
hi^ reach who attempted to assist in subduing him to obedience 
to defendant's reasonable commands : that defendant then 
whipped said slave, in consequence of his said resisftatice, and 
in self-defence, and with a whip inflicted moderate correction 

' upon him ; that he did .not inflict any cruel or unnecessary 
punishment^ but only -such moderate castigatioh aswas abso- 
lutely necessary, and that all the^whipping-he inflicted .was 
insufficient to subdue said slave. . . 

♦' '-^SU'That plaijitiffs did not- in aay manner praseeute defend- 
ant in a criminal proceeding for committing said supposed 
felony in plaintiffs' declaration alleged,' before any justice of 
the peace or gra-nd jury in and .for the State of Alabama, or . 
otherwise, or in any manner endeavor legally to ti'y or con- 
'vi^ Jhis defendant criminally for said supposed felony", <fec. 
'*Ar*Vt< That plaintiffs did not prosecute- this defendant bel^re 
the' gi'and jury of the county, of Perry, or any other grand 
jury in this titate, for the commission of th« supposed felony, 
or offenoe, in plaintitFs' declaration mentioned, byiiny crimipal 
^ogecution or otherwise, and did not endeavor to try for 6r 
convict this defendant of said supposed ofiencc in any manner 
whatever." . . ^ 

}♦» The pleas tiled by the other defendants severally are the 

'*n^lTie as those above stated, except tliat, in their second plea, 
they aver that they war© accidentally present when tiieir co- 
dQfendant Samuel Nalson was endeavoring to subdue said 

• 'slave, jind that, tft hie special iuvStance and request, they as- 
sisted hiiu in overcoming the slave's- foi'cible rcsittance, a.,d 
in inflicting such moderate and» proper puiiishment as wa? ab- 
Bolutely necessary to subdue him. 

• ' • The minute entry recites, that the plaintiffs took igieue upon 

the first plea, "and demurred to' the second,- third, fomth and 
ffth pleas ; which demurrer, being considered by the court, 

• was sustained as to the second and Jifth {)leas, and OT^'roled 
as to the tlurd ahd fourth." *-«* »v«»-»*i ..•t^^iifj«'.4tl .'i 4*w < v 

It appears from the bill of exceptions, that the evidence 
adduced on the trial showed, in substance, the following state 
of facts : ' That the slave Sam was hired by the .plaintiffs to 



JANUARY TERM, 1855. J^ ' ' 

■ : i ;: • 

Nelson ct al. v. Bondurant et a>. 

the defendant Samuel Nelson for the year 1850, and was in 
his possession under the contract at the time, of the alleged 
trespass ; that on Saturday night, in the latter part of April, 
the slave wanted a pass to go to his wife's house, but Nelson' 
told the overseer not to let him go until the next morning, as 
the creek was so high that it was dangerous to cross it at 
night ; that the Qverseer accordingly told the boy not to go 
until the next morning, but the latter . disobeyed his orders 
and went that night ; that when the overseer went into the 
field where the slaves were at work on Monday morning, Sam 
picked up &> clul), ^s.soQn as he saw him coming, put it under '* 
his arm, and left ; that he went to John F. Bondurant's, wliQ ' * 
tied him and whipped him, inflicting about thirty blows ^ 
with a handful of switches, acd then sent hiai- b?ick to defend- 
ant Nelson by Mr. Jackson ; that when the boy was brought 
back, Nelson took hold of him by the collar, intending to 
punish him, but the boy drew a knife out of his pocket, oaught 
Nelson by the collar, and cut hiuL with, the knife in several 
places ; that Nelson continued tO struggle with him, and called 
to his wife to bring him a rope, but when she ran to his assist- ' '•" 
ance the boy cut her in the face with the k^iife, and also at- 
tempted to stab a negro woman who ran up to, lier relief; 
that Nelson succeeded in throwing the boy, who, in ^lUng, 
struck his head upon a root or stump ; that the otiier defend- 
ants came up to the spot while the struggle between Nelson 
and the boy was going on, and with their assistance the boy'':K|^ ,^ 
was finally secured and tied, and was then whipped by Nelson, 
Jackson, and Booker ; that between thirty and forty blows 
were inflicted on him with a whip, some of which cut the skin; 
that tlie boy resisted to the last, and was insolent and rebel- 
lious after he was finally turned loose. 

■ . This whipping was inflicted on Monday morning. The boy 
afterwards walked about the house and yard, but complained 
of being sick, and did no work ; and on thfe Sunday morning 
following he suddenly died. The defendants ofl'ered evidence 
tending to show that, at the timp they whipped the boy, they 
did not know that he had been whipped by said Bondurant 
as above stated. A post-mortem examination of the body was 
•ipade by several physicians, some of whom testified, in behalf 
■ of the plaintiffs, that the slave's death was caused by thQ. .' 



346 ALABAMA. 



Nelsott et al. v. Bon^araut 6t al. 






wliipping which he had feceived ; wliil^ others testified, for 
the defendants, that the wound on the back of his head, re- 
ceived to his struggle with Nelaon as sihov^ stated, was, of 
itself, sufficient to have produced death. On this point the 
.\jill of exceptions states, that "the physicians ail concurred in 
the opinion, that if .the death in this case was the result of the 
injuries the boy had received, it wa-s impossible to attribute 
his death to any portion of tiiose injuries — that it was the 
result- of all the injuries taken together, and that- all con- 
tributed their proportion ; that the whipping which the boy 
received after being tied did not, of itself, cause his death, 
•and that he might liave died from some other cause than the 
.injuries inflicted." " i't-f' 

'• Upon this state of facts, the court charged the jury-^ '■' 
"1. That if they believed from the testimony that Bon- 
durant, one of the plaintiffs, whipped tlie boy, find that the 
boy's death was caused by that whipping alone, then these 
defendants would noit be liable ; or, if they believed that tJie 
injury which the boy rdceived' in the fall; while engaged in 
conflict with Nelson, was* the sole cause of his d^ath, then 
defendants' were not guilty, and could not be made liable. 
But if the testimony s&.tiB6ed them that the defendants^whip- 
ped tl»e boy, or were present S,nd assentied to and concerned 
ift the whipping by the other defendants, and that the boy 
was tied hand and foot wh«n"^e receited tllfe whippi»^, and 
that the whii3ping which he Ihus received from the defendants 
was by itself th^ cause of -his death, or that the whipping 
n^ch the defendants gate liiie, tn connection with- the other 
iMjnries, &,Tty or all'of them, m^qs the cause of the boy's death, 
the defendants would "all be liable for his value. 

"2. That if they believed .the whipping was done by -the 

defendaate dfter'the boy was securely tied, that Nelson had 

■a right td whip him, atid that he had a right to call assistance 

in punishing tlie hoy : yet, if the wliipping thus given, either by 

itself -or in • connection 'xv'ith other ii(iuries which the boy might 

have receiv ed liefoVc the tvhipping, caused his death, defend- 

* Unts would be liable for his value to plaintiffs in this action. 

,'-• '^8. That although they believed tlu\t Bondurant whipped 

"^the boy, and that he received a severe injury from the fall 

while engaged in coaflict ^ith Nelsou j yet, uuleds the^ be- 



JANUARY TERM, 1855. M 

Nelson et al. v. Bondurant et al. 

lieved that one or the other or both of these injoriep, of them- 
selves, caused the death' of the boy, and that the whipping by 
the defendants had nothina: •\thatever to do with his death, 
the defendants would be liable tb the plaintiffs." 

The defendants excepted to each one of .these charges, and 
also to others which the court subsecjuently arave on the re- 
quest of the jury for further instructions ; and they requested 
several charges, which the court refused to give. 

The rulings of the court on the pleadings; the charges given, 
and many other things which it ig unnecessary to notice, are 
ROW assigned for error. . . - . • 

- " '» 

, I. W: Garrot^ and Jos. E. John, for the aj^eliants : /^ 

1. The killing of the slave being prima facie a felony, the 
civil remedy is merged in it. — McGrew v. Ca'to's Executor, 
Minor's R. 8; Morgan v. Rhodes, 1 ^tew; 70; Holmes v. Mid- 
dleton, 3 Port. 427; Minter v. Blackburn, 22 Ala. 613. 

2. The declaration does not set out a suflBcient prosecution 
of the criminal offence to entitle the plaintiffs to maintain 
their suit. It does not aver that plaintiffs gave evidence be- 
fore the grand jury, or the justice of the peace, or in any way 
^ided in the prosecution; nor that any witnesses were sum- 
moned before the grand jury, nor that anything was done by 
any person : the only averment is, that defendants " were duly 
prosecuted"; and this is not enough. The owner of stolen 
goods can only have irestitutton by- bi-inging an' appeal and 
giving fresh suit : \i guilty of neglectj he is not entitled to 
recover.— 2 Hawk. 241v§§55-6; k 238, § 48^ zi.*239, §§ 50 

.to 52; 1 Hale's P. C. 540. . Plaintiff must give evidence, or 
..he cannot .recover. — 1 Hale's P. C. 546. -Rettitutioi^ was 
'only allowed on conviction, or outlawry, or what was equiva- 
lent thereto. — 2 Hawk. 2-H), § 53. If a thief takes goods from 
liwo, conviction- mu^t b© had for both, criares ^ finvnrer can oply 
Irave restitution on his own conviction, or what is equivalent 
thereto.— 1 Hale's P. C. 545; 2 Hawk., 240, ^52. If an in- 
dictment is found, and a noUe pros, entered, a civil action does 
.not lie.— Goddard v. Smith, 1 Salk. 21; 6 Mod. 261. 
.V 3. The fifth plea, to which a demurrer was sustained, is 
merely the plea of not guilty, adrawn in strActcoafornaty to the 
• law. The court clearly erred in sustaining the demurrer to it. 



K 

348 ALABAMAl. ? 



Nelson et al. v. Bondurant etaL 



4. The action should have been case, instead of trespass. 
The slave was hired for the year, and died before the expira- 
tion of the terra of hiring. Tht? injury, if any, was to the 
reversionary rights of the plaintiffs, and not to their possession. 
1 Chitty's PI. 175; Campbell v. Arnold, 1 Johns. Rep. 511; 
Milliard v. Dortch, 3 Hawk»'Rep. 246; Gopeland'v. Pa,rker, 
3 Ired. 513;'Hogan v. Carr, 6 Ala. 4*72. That the hirer is 
owner for the year, is shown by the "'cages of -Ricks v. Dilia- 
hiinty; 8 P«rt. 138, and Hqgan v. Ocwt, mpra. '\ 

•■ 5. The first and^second charges are severally defective, iiT 
that they assume that plaintiffs could maintain their action 
without proof of posisession, which is essential to such an ac- 
tion. — Chtstiflo V. Thompson, 9 Ala. 937; Phillips v. MtGjfew, 
l3^6. 255. • • 

.'« 6. The third charge assumes, that tirfiotily fact necessary 
to a Kecd^ery is, that the whipping inflicted by the defendants 
had sofflething to do in producing the elave's death. All the 
other evidence is withdrawn from the minds of the jury, and 
they are told-»that, if the whipping had any agency in' pro- 
ducing the death of the slave, it was enough. All the circum-, 
stances under which the whipping was inflicted, showing that 
defendants were endeavoring to subdwe the siav6,iare left out 
of view. The court erred in thus Jimiting the jury to the 
specific facts stated-in this charge.— Ho! mes v.. The State, 23 
Ala. 16-; Dill v. Camp, 22 ih. 249; Edgar v. McArn, i6.-796; 

•'Ladiga's Heirs v. Rowland &' Heifner, 21 ih, 9. 

• ■' 7. The main question in the casQ is this: How far can a 
Wrer, or any dther pereon than the owner, go in endmvoring 
to subdue an obstinate and rebellious slave ? It is submitted, 
that if one has the riglit to control the slave, lie can inflict 
proper, uifoderate punighment qpofl hini (as ohastieetnent, and 
not in anger or revenge) until he i« subdued ; and if tke slave 
is not made to^-ield by the application of such punishment, 
but continues rebellious, the hirer (or other person having 
control) may continue to inflict proper and moderate punish- 
ment, and, if death ensues, he will not be responsible to the 
owner. There cannot be any middle ground between the 
liberty of the slave and his absolute, unconditional submissiott 
to his master : if the slave cannot be com|)elled to submit by 
proper and moderate punishment^ the, rule of the master is at 



JANUARY TERM, 1855. 349 

Nelsap et al. v. Bondurant et al. 

an end, and the slave becomes a freeman. — Dave v. The State, 
22 Ala. 23. " Every effort to extend to him positive rights, 
is an attempt to reconcile inherent contradictions.!'-— iKinlock 
V. Harvey, Harper's (S. C.) Rep. 514. "In the very nature 
of things he is subject to despotism." — Ex parte Roylston, 2 
StrQb. Law R. 43. , , • . 

■ ,Wm. M, Murphy, contra; 

;;4« No actiop for. a malicious prosecution will . lie, until ^, 
discharge or acquittal ; yet, if a bill be returned " Not a true 
bill", thif is such a discharge as will authorize the bringing of 
the action.— Payn v. Porter, Crc Jac. 4^0 ; White v. Fort, 
8 Hawks' R. 267. • , ' 

2. If a bailee destroy the thing bailed, trespass may be sup- 
ported. — 1 Chitty's PL 109,. 172, and authorities there cited. 

3. The plaintiffs did all in their power to secure the prose- 
cution and conviction of the defendants : they caueed them to 
be' tried befw.e a justice of the peace, and to be recognized in 
sufficient bonds for their appearance at court; and caused the 
matter to be brought before the grand jury, and diligent in- 
q^jiry to be made. In the very nature of things they could 
not testify, as the trespass was committed by a Ijailee on 
property in possession of the defendants. 

4. The killing of the slave by a barbarous whipping or- 
beating, thO'Ugh- withixulf intention to kill, was unlawful, — 
Clay'* Digest, p. 413, || 6, 7. If aay illegal act be done, the 
par.ty doing it, jor -causing it to be done, is responsible for all 
consequences' resulting from the act. — Burtofl v. McClellan, 
2Scam»-434. It ia. not necessary that the act should be wil- 
ful : even if it be accidental, the plaintiff is entitled to recover. 
Leame r. Bray, 3 East 691, and numerous authorities there 
cited.; Schuer v. Veeder, 7 Blackf. 342 ; *Blin v. Campbell^. 
14 Johns. 432. ■ . • . 

5. »The right of Nelson to punish the slave foy insubordi- 
Baftion, and to use ^-oper force to subdue him, is admitted ; 
but it is insisted, that he had no right to kill the slave, unless 
ia self-defence. • If the slave ivas tied hand and foot, perfect]j 
in the power of Nelson, and Nelson and the other defendanta 
were in no danger ;, and if they continued to whip him, while 
thus bound, and the slave died in consequence of such whip- 



m ALABAMA. 

Nelsoa et al. v. Boiidurant et al. 

-^ L Sl_ . 

pinf^, tFieff the defendants became trespassers ab initio, and are 
responsible. The charges of the court, tested by these prin- 
ciples, apc correct. - • 

GOLDTHWAITE, J.— The demurrers to the several 
counts in the declaration wero properly overruled. The aver* 
merits in the first count, that the defendants below were du!y 
prosoowted before a justice of the peace of the county for the 
killingofthesiaveiand' entered into a recognitance for their 
api^earance at the next Circuit Court to answer the supposed 
felony ; and that Jit such term they were duly prosecuted 
therefor before the grand j«ry, wIk) diligently inquired into 
tlic ciiLb.rge, and found no bi 1 against the defendants, of either 
of theih, we regard as- a- sufficient averment of the prosecution. 
It is not necessary to aver with particularity everything that 
was done, or to 'State what witnesses appeared, or^wlrat testi- 
m6ny was offered. If there was, in fact, no prosecution, or it 
was not carried -on rii good faitl>, or was not successful by 
reason of collusiofi'between the parties, the defendants c'ould 
obtain the benefit of these matters by pi-ovifig the facts. The 
allegation that they were duly prosecuted before a tribunal 
h'&ving jurisdictioTi, is sufficient. * 4v 

What we have said, in-relatioil to tbe first count, appliea 
equally to the second, which charges i^ the same language 
^ the prosecution of the appellants before the grand jury. 

In relation to the demurrer to the second plea, it is only 
necessary to observe, that w^e are satisfied thait the facts 
alleged in that *plea constituted a full defence to the action ; 
yet, as the record shows that the defendants had the full ben- 
efit of this plea by the evidence offered to the jury under the 
other pleas, the sustaining of the demurrer is not, under Buck 
circumstances, a reversible error. — Gfeodwia v. McCoy, 13 
Ala. 271. * . 

The statement ill the record to the effect that a demurrer 
was filed and sustained to the fifth plea, we presume must be 
a clerical mistake, as there is no such plea ; and being left 
entirely in the dark as to what plea the demurrer applied to, 
•^e are unable to pronounce. upon the judgment of the court ia 
sustaining the demurrer, to any other than the plea we have 
already noticed. » ' , 



JANUARY TER M, 1855> 351 

Nelsoa et al. v. Boiidurant et <ii. 



As to tlie charge of the- court, which, when taken in con- 
nection with the evidence on which it was based, may be 
regarded as asserting the proposition, tliat trespass could be 
maintained by the owner of a slave, for an injury causing his 
death, done by a person in possession under a contract of 
hiFiug, we think there was no evto]*. It is true thyt the gfst 
of the action of trespass, for injuries to real or personal pro- 
perty, is the damage done to tlte possession ; but a construct- 
ive possession is all that the kw req,uires, and it is deemed' 
constructive, when the party who brings the action is the 
owner at the time the injury is committed, and has as such' 
the right tp the poesessioil at' that" time ; ^s in case of tb*^° 
destruction of property by a common bailed, or cutting down 
trees by the tenant at will^ (Co. Litt* 57 a ; ti. 200 b,) in' 
which ease5«* says Mr. Greenleaf, the interest -of the wrong- 
doer is 'thereby determined, ^nd the possession immedfately 
r(5verts to the owner.-— 2 Greenl. Ev. § 615. Where, how- 
ever, the plaintiff's right to ' the property exists only in 
remaihder, or reversion, ^he action must be case (I Ch. Pf#* 
167) 5 for the reason, -that until the event happens, or the p**" 
riod arrives, which invests hira with the actual right of 
enjoyment, he cannot,- nndeiMiis title as remainder-man or 
reversioner, be entitled to the possession. But if he occupy 
a position which gives him the right to resume the possession .^ 
of his property upon the commission of th'e wrongful' act, then, ^^"^ 
the instant this right accrues, he is regarded, upon the prin- 
ciple we have already adverted to, as having the constructive 
possession, so as to authorise him to maintain trespass for the 
act. The application of this doctrine to tke particular case 
before us, is readily perceived. Iil every contract of hiring, 
the-o'wner transfers no greater rights in relation to the slave 
than he himself possesses ; and in every bailment of this char- 
acter, a reservation is implied, requiring the bailee to treat 
hitii with humanity, and to discharge those duties which the 
law regulating the relation of master and slave requires from 
him. If he fails to do this, tlie contract is broken, and th? 
owner can resume the possession.— Rasco v. Willis, 5 Ala. 38 j 
Hogan V. Carr, 6 Ala. 471. And if the act is forcible, 'as 
well as unlawful, the owner can maintain trespass ; the baileo 
nat being entitled, as a Tight, to the possession, for ihe 



352 ALABAMA,* - '/ 



NelfOQ et al. v. BoDdurant et al. 



remainder of the term. — Gillian v. Senter, 9 Ala. 395 ; Hilton 
V. Caxton, 2 Bail. 95. 

It appears from the bill of exceptions, that the court 
instructed the jury, in effect, that if the slave belonging to 
the plaintiffs, being first so secured as to be unable to resist, 
was whipped in that state by, the defendants, and the whip- 
ping thus inflicted was one of the causes of his death, they 
were liable for his value. This was clearly erroneous. In 
all this class oC cases, the question of liability mtist be referred 
to the character of the act. If lawful, there can be no liabil- 
ity ; while, if unlawful, the actor is always liable to the injured 
party, at least to the extent of the injury actually sustained. 
The owner of the slave has the right of punishment and cor- 
rection, being respoijsible to the law for its abuse ; and in 
hiring to another person, in the absence of ati^ expjsess stipu- 
lation, he delegates to such pei'son the same rights, in this 
respect which he himself possesses; and the master by hire is 
only liable when he exceeds or abuses the authority which 

' the owner and the law concede to him. He has the right to 
correct, but he has no right to be barbarous or cruel ; and if 
the punishment inflicted, when considered wjth a just regaid 
to all the circumstances which surround itr-the character of 
the ofl'ence, and the offender j the necessity of maintaining 
discipline and ejiforcing obedience — is- either the one or the 
Otljey, it is»denounce4 by our peaal code (Clay's Dig. 431, § 1)^ 
and being ujilawful, he i^ a trespasser ab initio^ and subject to 
images at tlie suit of the owner. The charge seems to lay 
some f^tress apon the fact of thfi slave being secured, so as to be 
ttnabla-.to resist a4 the time of the whipping ; but this cannot 
yiAnj^way affect the rights in respeci to correction. If it 
, is a,(Jminis:tered se as oot t.p be obnoxiQus to. the law-— sq the 
punishment is not cruel or barbarous — there is no liability 
even should death ensue. The charge of the court was erro- 
neous, as it held, the appellants re«pousible for the result of 
the act alone, without making their liability depend up9n the 
illegality of the act. s 

As the views we have expressed «rill probably be decisive 
of the case on another trial, we consider it unnecessary to 
pass upon the other questions raised upon the present record, 

J^ Judgtneat reA'^rsed, and cause remanded. . , / ^ , "bi^t 



JANUARY T|)RM, 1855.» . 353 



Tloyi V. Mofrow; 



. FLOYD vs. MORROW. 

1. When an execution, Either from a court of record, or from a justice's court, 
is levied by a slierrft'or constable on mortgaged property, t!ie mortgagee, or 

*his assignee, may interpose a. claim and try the right of property (Code, 
§ 2595) before the law-day of the mortgage. 

2. On trial of the j-ight of property between plaintiff in execution against the 
mortgagor' and the mortgagee as claimant, it is error to exclude the.*9laua-' 
aat's mortgage from the jViJ' ^^ i*' i^ '^^*' voidjbn its face". .. , '•: 

3. A mortgage conveying, Among other personal property, " the hire" of cer- 
tain slaves, " or the use of them the present year, and whatever negroes I 
(mortgagor) may, hire next year to make a crop with, and the entire crop I 
may make this year and next," is not void on its face. 

•■'»'■. i . 

■ Appeal ffom •fhe Circuit Court of Conecuh. 
* Tried before the Hon. Nat. Ccok. 
.''*.."■,• * '" 

" IPbtal 0P1HE RIGHT OP PROPERTY in' a yoke of oxen, be- 
tween William C. Morrow, plaintiff in execution, and Jordan 
R. Floyd, claimant. .The plaintiff's execution was issued on 
a judgm.ent for $41 17, wliich he had obtained against one 
James W. Ritchie, and was levied by a constable on the pro- 
perty in coiitrpversy on the 9th August, 1854. The claimant 
having cx^outdd the statutory l^cond, a trial was had before a ; 
justice of the peace and a jury of seven men, which resurted" '^'^gg 
"in a verdict and judgmen,t.for the 'claimant '; from which judg- 
nfen,t tKe plaintiff appealed to the Circuit Court! On the trial 
in the Circuit Court, " the plaintiff proved a levy made upon 
certain property in thfe possession of James W. RitcMe, and 
established its vaMe, and then paused ;" and the claimant then ^ 

offered in evidence a mortgage, dated May 18, 1854, together 
vrfth th« clerFs, endorsement showing that it was .proved and 
recorded on 8d June, by which the said James W. Ritchie 
conveyed to him certain articles of "personal property, which 
are thus described in the eieed : * Four yokes of steers, two 
mules, two sorrel mares, one sorrel three-year old colt, twenty- 
iive head of cattle, thirty head of hogs, two wagons, one set 
of blacksmith's todls, household and kitchen- furniture, and . 
plantation tools, and the hire of Bill, Beck, Nathan, Lucy^ 
and Henry, or the use of them the present year, and whatever* 
23 



'^^•* . ' ;;*,^y ALABAMA. ^\ ' •. *■ 



-/- 



Floyfl V. MoM'ow. 



negroes I may hire next year to make a crop with, and the 
entire ferop I may make this y^ar and next." The condition^ 
of this mortgage is, "that if tjie said Ritcliie shall and does 
well and truly paj^; or cause to" be jJaid, unto flie said Floyd, 
. or his certain attorney, the full sum of $787, ($534 80 due» 
the first of January next, and $252 20, due the first of 
January, 1856,) together with any debt tiie said- 'Ritchie 
inay contract with the said Floyd, during* this or tlje 
next year, for the redemption , of the mortgaged property, 
then* these presents," '<£c;, shall be void,'*&c. . ^ •' ' 

"The claimant then offered to show by evidence that the 
property levied on was the property with which the defend- 
ant in execution was making the crop the'presehf years which 
was mortgaged to claimant, and mentioned in th'e said mort- 
gage, and offered thd mortgage as evidence. To this the 
plaintiff objected, and the court sustained the objection to the 
introduction of the mortgage," bbtli separately and in con- 
nection with the evidence offered ; and thereupon the claimant 
excepted." ' / "^ - >' 

S'his ruling of the cquct'is- now assigned for error. 

> ■ . '■'■'''• 

' Watts, Judge & JACK§pN,"^r t\ie ^ppojlant : 

1. The mortgage ^as certainly imobjecttonable on its face. 
>The mortgage of the Crop groAvingr and to be grown, is law-. 
' fuL-^Maul^in, Montague & Co. v. Robinson & Caldwell, 11 
" ' AJa,. -^SO, an'd authorities" tlitrg .cited.. 

. :■ ' 2..' This mortgage gives Ilie mortgagee tiie^ right to the pos- 
session of the property ipi mediately. . • 

3. The mortgagee can elaim"the property ; and .When suqh 

claim is made, it is the duty of'theexeciftion ■creditor, befor« he 

eanseli the property,: to pay the, mortgage debt. — Code, § 2595. 

' \*,4. The bxenievfed en'WefO'iMcIujded in the iftor.tgag«, am'd* 

■' • it' was proposed to sKow this ; and also to show that they were 

■"'-' engaged in. making, the ■cr«p of 1854, which was itself raort- 

.;. gaged to the clajmant. If the OJten, .'themselves mortgaged, 

•' can be levied on, the defendant ia execution could not make 

^ the crop, in the making of which they were engaged ; and 

V thus a double injury would bc-done the mortgagee — the loss 

of the mortgaged oxen, and of the mortgaged crop. In this 

■ , ' view pf the case, it is insisted, that even if the mortgagee 



«J 



JANUABY TERM, 1856. il^ 



Ployd V. MorroW. 



could not, ordinarily, claim until the law-day of his m(fttgkg^ *. 
yet, wlien he has a present right, the plaintitF in execution 
cannot disturb it. 

5.' Section 2595 of tlie Code would be useless, if the mort-- •; 
gagee cannot claim until there has been a forfeiture. Inde^** " 
peRdejitly of that statute, he could claira after a" forfeiture:-*— 
P. & M. Bank v. Willis & Co., 5 Ala. 781; Hooks v. Ander- 
son, 9 i6. 704 ; Magee v. Carpenter, 4 ib. 469. This statute^ 
say*; that ""the ijiortgagee" of the. property levied, on*, may 

. claim, <^c. He is a§ much mortgagee before as after the for- 
f^tupe-^ The cAses of McGregor Y. Hall (3 Stew.. <fe P.) and 
^^"iKeli^v.Ht^an (5. ^.) were'decided before- the passage ef 

••^he a<;t of 1845 authorizing the mortgagee to claim ; and that 
ifees nearly the language of the Code. To hold now that the "•' 
mortgagee cannot claiih'' before 'the :law-day of Jiis mortgage;-' ' „ 
would be to 'decide that the act of 1845 and section 2595 of 
th^ Code have accomjjJi^hedjiV'itWiig'- 

■ jN. Harris, contra ; ' ' ^r . # .• ^ 

* The mortgage deed offered in evidence did not entitle the 
appellant to the possession of the naartgaged property until 
the firsj; of January, 1855, tho- day on which the fitst debt fell 
duo. It is^ settled law, jn this State, that the mortgagor is 
entitled to the possession of the property until^^the law-day of 
the mortgage, "unless the mortgage itself prervides that the- -/^" 
mortgagee shall take the possession before that day arrive^-. '* - 
P. & M. Bank v. Willis & Co., 5 Ala. 780. There 'is no pro- 
tision in this mortgage that* thp, naortgagee shall take the pos-* ■; '* 
session before the law-day ; the mortgagor had the right of* 
poSvS€ssiou until tha first day of Januapy, 1855, "and the equity^- • • 
of redemption, and ,v.as,4ii possessiort' at^'ih^ tfrae of tliJC^'' •" 
levy ; and the interest which-he had was a Valuable an-d tleiitiy*^. ■ 
asc'ertaiijed interest. The Code (§ 2455* 1 3) expteissly ssb-' • '■ 
jocts the equity of codeifiption, m eithei' real or peradiial pisdi** *^ 
pepty, to execution, and provides tliat, when any interest less"' 
than the ajljsolute title is sold, the purchaser, is subrogated to« 
all the rights of the' defendant, and subject to all %is disabfli- 
ties. Th§ defendant in execiition, then, at the time of the 
levy, and even at the time of the ti-ial, hud such an interest in 
the puoperty 48. vra^ subject to kvy. Section 259^ decldpes, 



^' ALABAMA.V :^:: 

..,.„_^ . . . — - — . ■ * 

Floyd v; Mortow.' 



thajt " when personal property, mortgaged to anotlier, is levied 
oa b.y execution', the mortgagee, or his assignee, may discharge . 
the mortgage debt', and then? ike sheriff shall sqII, as well for 
the payment of the mortgage, debt, as for the satisfaction of 
the execution." The issue, upon a trial of the right of pro- 
perty, is, (§ ^688,) *'«fehat the property' levied on is the pro- - 
perty of the defendant in execution, and liable to its satisfac- 
tion." ' .Now all these sections mu«t be construed together, so, _. 
as to. give effect to each one of them, and ho c<insti'uction% 
should be placed upon them which would lead to any absurd . 
result. The poliay of -the law is, to subject all pipperty (except 
what is specially exempt, froin "execution) /inc^ all interests to 
the payment of the owrief's debts. "" » ' , .* ' •' •■ '. '■ 

There are many reasons why section *2595 .abokldnofrb^-- 
construed to ajlow the mortgagee to iitterpose a claim before^ 
the law-day., .He is not bound to receive the mortgage debt* 
nor is the mortgagor • bound to.pfiy it, yntil jt becomes due ; 
and the mortgage May, as. iii this very case, 'be intended to 
secure, not only certain specific d(^bls, but als6 debts thp.t might 
afterwards be contracted for the piirjaQSgs specified in the 
deed. In such case, it is imposgibte foe the plaintiff in exe- • 
cution to know, the extent of tlie mortgage" debtg'; and if -he 
d9es not know the amount for which the property is thus-. 
bt^jHid; how can he know, the amount he must pay. or offer toi*- 
pay, for the satisfaction of the piortgage debt-? ■> Suppose. th&- • 
mortgage debt is $10,000, and does not Ml due for ten years»*, 
— ^^tliat the mortgage'd property consists of several articles 
eaoh one of whic^. i^ sufficient tcf |iay 'the debt; and that.Jan* . 
execution for only $50 is levied on a small portion of the proT\ 
perty ; can it be contended tjiat the fabt of the levy makes'. . 
the whole «aortgi^e debt bec9me dug, ajid compels the .mtjrt?, 
gagor to pay it or be deprived of "his pro^ej'ty ? ^uch a con-;.', 
elusion would be absurd^and would entirely'defeat the cred-- , 
iior's ligjit,. secured to Kim by secJfeioj>2455, to subject th©,^ 
equity of redemption- 15 the payment of his execution, without - 
paying the mortgage debt. It is true, the act of 1845 al- 
lowed the mortgagee ,to interpose a ckrm to the mortgaged 
property before the law-day of his deed ; but then the equity 
of redemption was not subject to levy and sale, unless accom- 
panied by possession. The Code (§ ^455) subjects to levy 



JANUARY TERM, 1855-.. -x:^v * ^57 

-'*^Ji ^-^-^ -■ .. 'Vf,-ti a . 

Floyd* V. Moirow. * ' » 

■__ _ ^ . '-L— *^^ --^.^-JH^ . . . ■ ;■- ■ . ,• 

'/.&,nd sale undfer exeoution an interest which was not subject by 

■the previons law ; and to hold that the right to interpose a 

. -claii^, secui'ed b-y scotion 2595, extends only to the right to 

•gut in a claim after the law-day, will harmonize the two sec- 

^'.tions, and no absurd ^consequences will follow. When the 

'equity of redemption is sold before the law-day, the purcjiaser 

' jw-iH be, entitled to ihe possession until that day, and to the 

' right of redemption ; 'and after the law-day the mortgagee is 

/bound to receive the moi^tg^ge debt, which is then easily as- 

* J^erta,ii;ied. If t%e<. moi-tgagee is about to sustain any loss or. 

injury by the sale or removal of the property befof e the law- 
^ ^;<^ay, equity can afifordjiim ample relief now, as it could before 
i j^e Jtxioptipn of thp Code. * , . 
' M Again ; the mortgage was properly rejected as evidence, 
•J^ecause it prbvides, for the payment of' debts that might be 
-'-contra'cted after^its e^cUtion,;^nd is therefore.fi'airdtifent and 
•^oid oh its face 'as td execution creditors of the mortgagor. 
■ ■ It is also' void 9,s to the appellee, because it mortgages pro- 
perlpf not thejfin exi'stence, but to'be afterwards grown. 
' ■'.There was no proof, *nor mij offer to prove, ^hat any debt 
'."^as .due from the mortgagor .to the claimant ; -and the recitals . 
"^Iji th^ deed.itself are not evidence against the jJaintiff in ex;e- ' 
"tSution.— McCain v. Wood, 4 Ala. 258.' 

• t' •'• • • ■"' , ' . ■ ■* ■ . ' 

« ' RI€Ei, \!r,— rWhen an^executiori from a court of record is 

levied' by the sheriff on personal property mortgaged to ano- 
ther, the mortgagee, or his assignee, may, by virtue of sectioa .. 
25"95 of[ the Code, try the right of property, as provided in ' 
'■"'chapter second of title second.of ^thB Code; hefbre the, lavpday -y 
' '"Pf the mortgage has arrived. ' ' 

-' To deny this, is to jdeny'sgay i^eaning to thd -words em- 
ployed in that section, which profess "to confer a right on the 
mortgagee or his assignee ; for it is very clear, that under 
section 2587, the mortgagee, or his assignee, is authorized to 
"try the right of pi-operty, whenever suoh execution is levied 
X)n such property after the law-day of the mortgage. 

Sound exposition ijequires effect to be given to every sig- 
nificant clause, -septence, .or word iti a' statute; and the two 
sections above cited must 1)6 h,eld operative to the full extent 
above indieated.-^-Smith's Com. on Stat. 710. 






*»*• ♦' ' " ^ jPloyd V. MorroTjV'. • 

.si iBuHntj cxoo«iioir,aiii(ier which tj*e levy- in. ♦this case vcas 
viitade, is an excC4itjon for IcsstJmn fifty dollars, issued by a 
jiiBtbce of .the peaceyanfl levied by^i constable., . J'he claim 4s, 
interposed under section 2833 of th6 Code^fotind in -title three, 
^which is apparently' devoted to "proceedings in civil, cases 
before jjastices.-oT the peade.'*' 3*he clam\ is. interposed by a 
.{jHortgagee, before the' law-day gf his mortga^'a-yrived. Sueh 
a. claim canii^t be sustained, ^unless section 2595- extends to 
tUcmortgaigee, or hfs assignel?, the sainq right, wheji the^eyy 
•••is made by acpfistable under a justice's execution, as when it ' 
', is made bj' a sheriff q^der an execution from axourt of record. 
' , It has. Qver, been, ai>d still- is, tbe^ right of an'^xecation 
^ creditor in t^is State, by suit in equity, to QOjnppl the cjed- 
.itor^,or bqnefipiavies pi-ovided for by/g, feir .and valid^deed of 
'. -trust pr raoFtgage to sell th(^. property, or clo^ tke tluist, Or 
. ec[ui table terms, whenever such deed, hy the long credit given, 
or lOthorwi^se, becomes oppressive or injinious.to him.— I^ubose 
.-y- Dubose^ 7 Ala. 2,35 j Pope v. Wilspn, 7 ib. ^^; Tarv^T v. 
Roffe, 7 , lb. 873.' ., . ^ > * ' • .- • , ^ . , . ^-^ ^'x ■ 
. .^TJntil the -act of . January 25lh, if 845, (I'am))!!: Acts, p. 136,) 
t^e mortgagee could not, by interposing a claim, or by^f^ny 
• a^ier proceeding at law^ prevent tlie 4)ersonal property c!n- 
bra,ced by his mortgage from levy and sale under execution 
against the mortgagor, before the law-day of the mortgage. 
Many sales' were madQ under execution of the mortgagor's ip-' 
torest, before ttie law-day.' Such sales, almost invariably, 
resulted in the sacrifice of the property, apd in working in- 
,JUTy both to tKe mortgagor and mortgagee. To^ prevept 
. such injury ^nd Such sacrifices of property, which had been 
. rfioptgaged in good failh, was doubtless the main object of 
the Legislature in passing the act of 1845, "and in ct substan- 
tial re-enactment of it in section 2595 of the Code. 

If personal property embraced by a valid mortgage, tbe 
law-day of wlych will not arrive for Several years, i^* permit- 
ted to be sold under execution at law, experience has proved 
that injury therefrom must result, either to mortgagor or 
mortgagee, op to both. This ought not to be, wjien they have 
, acted fairly in the execution of the mortgage. There is no 
necessity for such injury. The execution creditor can, as we 
have above shown, by bill in equity, obtain all he ought to 



JANUARY TERM, 1855. 35& 

Floyd Vi Morrow. 



have. "He is the pacty wJio ouglit W be compellted'to resort ■ 
• to chancery ; because the mortgagee? haVing fairly obtained' 
jl preference by his mortgage, ought to be permitted to stand- * 
on the defensive, and should not be forced (although he is al- ':^ 
lowed) to become an actor in a •court of equity, to maintain' 
an advantage honestly gained over other creditors. 

If the execution creditor resorts to a court of equity, lie must 
make the mortgagor' and mortgagee parties to his bill. When 
a sale is decreed under such a bill, all the parties will be pro- 
'tecfed and benefited. Purchasers, knowing that the title 
under such *a sale is free from encumbrances, will be more wiH- 
. ^ ing to give a fair price for the property. They will know 
. .*'\that" they are buying. The proceeds of such a sale will be 
' '/greater than could result from proceedings at law. The lion-. 
/lest mortgage and coifets of the Chancery Court will be first " 
paid out of those proceeds, and out of the surplus the execu- '. 
tion -ci-editor will be entitled to satisfaction. 

Although, in certain cases, where the amount of the mort- ' 

gage debt is known, .the execution creditor may, if he chooses, 

4)ay it off, a|[id sell, as shown in section 2595, yet he is not 

-^■vkJound to do^"sp in any case. He may resort to th,e Court of 

• ^ Chancery, as' above shown, if he prefers it. AnS so, although 

^•the mortgagee may resort to chancery now,Jn any case where 

he could have resorted, to it t»e*fore Ihe Co.de took effect, he is 

not bpund to do it. He may interpose" his claim, atld try the 

right of property, before the law-day of his mortgage, if he 

ppefei-s it. 

T*he effect of section 2595 i«, to secure to the mortgagee 
the right to .elect whether he vill interpose his claim at law, 
pr; resort to chancfery for the .protection of his interests under 
th« mortgage ; and if he elects to claim at law, hts claim, al- 
though interposed before the law-day,' must be sustained, if 
his mortgage. ia executed in good faith, and &r a valuable 
consideration, and is duly recorded. 

This ri^ht of electipn in the mortgagee is not confined to 
cases where tli© levy is made by- a sheriff under an execution 
from a court of record, but exists in cases where the levy is 
made by a constable under an execution from a justice of the 
peace. The letter, and eqility^.and reason of the statute, em- 
braitCe the One class of these oases as well as the other ; and 



360 :• ALABAMA. 



Denson et al. v. Mitchell and Wife. 



in conferring this right on the mortgagee,, no word is used, 
which excludes him from trying the right of property when 
the levy is made under a justice's execution. 

The fact that a' constable is not authorized to- sell, as well for 
the payment of the mortgage as of the execution, furnishes 
no sound objection to the conclusions above announced ; for it 
i^ obvious, there are many cases in which a mortgagee may, 
j^^ore the law-day, interpose his claim, but in which the exe- 
cution creditor cannot discharge " the mortgage debt." Fqf 
example, we state the case of a mortgage executed to s^Jcure 
ffhe sureties of «, public officer against loss by i*eason of his 
defaults. 'Y>''hat is '.'the mortgage debt," in such a case, be- 
fore half Ills official term expires?. No man, nor court, can 
tE^li "'It cannet be discharged by an execution creditor ; .yet 
imder such a mortgage, a claim mightSae interposed by the 
mortgagees. .This serves to show, that the Legislature con- 
ferred on the execution creditor a privilege much nf(fre res- 
tricted than was conferred on the mortgagee. 

The court' below erred in bxcludjng the mortgage offered 
in evidejice by the appellant, which embraced the property 
levied on and in controverey in this suit. — Willis v. Rhea,'10, 
Ala. 451 ; 5 ib. 531 ; 7 ib. 698. '^ 

That mortgage is not void qn its 'face.— Mauldin v. Robin- 
son, 11 Ala. 980. ' ' 

For the error of the court below in -excluding the mort- 
gage, its judgment is reversed, and the cause remanded. 



DENSON ET AL. w.»MITCHELL aud WIFE. 

' ■*• 

-J. .Tlie-words of a devising clause in a will cannofr, otdinarily, be carried beyond 

. their just legal- import' and legitimate meaning, by any supposed general 

intent to be gathered frons the preamble, or mtroductory part of- the will^ 

and it is only in cases of dodbt, where the words of a bequest may, without 

doing violence, td the apparent intent and the rules of law, be construed more 

-f** ways th^n tjoe, that resort is had to the introductory part of a will te aid ia 

., solving Buoh doubt. 



JANUARY TEBM, 1855. 361 

Denson »t al*. v. Mitcljell aad-Wif^. 

2. An express bequest of an estate for lid negatives the iufeution to give the 
* absolute property, and -converts 9> supecayltled right of. dii>position into a 

mere power. • * 

3. The introductory part of a wHl was in these words : " I, J. D., bemg at thfi 
* time of sound mind, and in full possession of all my mental faculties, and 

knowing that ],have to die, and desirous of leaving this will ", &c., " desire 
that my jierson and property shall, after my death, be disposed of as fol- 
lows'', &c. In the first seven clauses next succeeding, thetestator gave specific 
bequests bf slaves to his several children, giving his sons the absolute property, 
, and limiting the interest of each daifgliier to- a life estate " not subject to the 
' d^bts of her husband, and after her death to be equally divided among the 
, heirs of her body"; and in the eighth clause he l)€queathed to his. wife se\-. 
eral negi'des, all . of his househpld and kitchen furniture, stock o£ horses,.'' 
*- cattle, &c., and plantation tools, " aU of which, she isi to have and hold 
J . dttring her natural life, and a,t her death to dispQsq of at her will and 
pleasure.'' There was no reaiduaiy clause, and no bequest over in default 
of disposition by the wife : Held, that the widow took but a life estate in 
the property bequeathed by this clause, with power to dispose of the .remain- 
der; and she having died intestate, th^t the property ^ent to'the'test^a- 
tor's personal lepresentatives, to be by him admiijistergd as in cases of in- 
j;estacy. . . » ' 

Appeal from the Chancery Court of Barbour. 
Heard before the. Hon. Ji W. LhseSne. 

' #.'•-' '•/<.■' 

.- Jethro Denson died an the 8th Jxi^y; 18&1* in* Barbour 

county, Alabama, after having ihade and published*' his Ikst- 

"will and testamept, \diich web fittested by th?ee witnesses, 

■ ia.nd was as follows : • ; '■ ' - 

"'I, Jethro Denson, kreing at this 4im^ of. Bbttn<d mind, and 

in full possession of all my mental faculties; and knowiijg that 

•t'l have to die, and desirous of leaving this. will, and -after 

'^ commendiag my soul t(v the mercy ^nd safe-keeping of Al- 

;tnighty God, who gave it, desire that my person and property 

^ishall, after my death, be .disposed of 51s follows, tOrwit — - 

'■-', " 1. That my body be decently interred by my executors. 

"2. That my executors pay, out of thd "proceeds ofmy estate, 

'all my jtist debts. 

'• "3. Twill and bequeath to mji'^iiwi- Matthew Deneon my 

:fiegro man Moses. •. ■ '• *' ''^ .• -^v' 

"4. I will and- bequeath ^to'iay- soil. Archibald J. Denson 

my negro woman Nancy and- her children, p*ovMed he takes 

up his permanent residence in Barbour -county, Alabaana'; if 

^ he does not, then I desire my executors "to sell her (Nancy) 

"•and her childreii, at publio outcry, .to the highest bidder, and 



•',»■*♦ 



■•• -362 ALABAMA. 



Denson et al. v. Mitchell and Wife. 



- pay over the proceeds of sai^ sale into the hands'of Archibald 
J. Denson, as his part of the estate, ' , 
\ "5., J "will and bequeath to my dau^htet Mary Pitts my 
negro woman Violet and her chijdren,- and one girl named 
Silvy, to have .and to hold duringher natural life, not subject 
to the debts of .her husband, and after, her death to be equally 
divided among the heirs of her body. 

" 6. I will and bequeath to Iny daughter Naney Screws my 
negro woman Mahala and \\et: children, to have and to ti'old 
'diirfng'her natural life, not subject to the d^bts of her husband, 
and to be equally divided after ht;r death between the heirs 
of her body. I ako will and bequeath to my daughter Nancy 
Screws the ei^lith of a section of laiid on which she ala^ her 
- husband now reside," (particularly described,) "to. have and 
to hold during her natural life, not subject to the debts of -her 
htisband, and after "her death, to be sold at public outcry ,"*and 
the proceeds of the sale to be equally divided between the 
heirs of her body. . •' 

. "7. I will and bequeajth to my d^i^gliter'Ml^'rthaMitekell 
my negro woman Morning and her chiWren. 

^'8. I will and bequeath, to rpj wife Kebecca my negro 
•** woman known as Little -Ferriby, an$i her children a^d grand- 
children, with the exception of. her daughter Nancy. I further 
will and bequeath to my wife Rebecca negro, man George ; 
also ■» woman known a« Big Ferriby, and hpr thre? youngest 
children ; also, two negro men, Cupid and Jack;" also, a 
woman knowa as Old Nancy, and" all of my household and • 
kitchen furniture ; alsQ, fifteen .liead of stock cattle, fi.ve head 
of horses, one road wagon, and all of my stock of hogs, plan- 
tation tools, and farming utensils ; all oT" which she is to have 
and hold during her natural life, and at her death to dispose 
o£ at her own will a,nd pleasul'e. 

"9. I will and bequeath to my wife Rebecca my three negro 
men, Charles, Handy, and Joej also, two girls, Caroline and 
Clianey ; also, my pkntftttOn ; to have and hold during her 
natural life, and after her dea^th to be sold at public outcry, 
and the proceeds of such sale to be equally divided between 
my children. >• 

" I desire the above to be my last will and testament, and 
. ,-;:l|fireby appoint Randolph Mitchell and my wife Rebecca my 



JANUARY T ERM, 1855. m^ 

. ■ -• Deason et a}, v. Mitchell and Wffe. 

y ._■ — ^^ — v-^- — — — ^ — • . ■ .- — • 

f- execjitors,'and do hereunto affix and sign my name and seal", &c. 
, Of the testator's children ^named in this will, all of whom 
survived him; Martha, the. wife of Randolph Mitchell, w^as the 
only child of his wife Rebecca ; the others being born of a 
former wife. Mrs. Rebecca, Denson afterwards died, to-wit, 
* ift.January, 1852, intestate ; and the slaves and other property 
bequeathed to her by the testator went into tiie possession -of 
said Mitchell and wife, who claimed and held theiti as.' the 
separate 'estate of Mrs. Mitchell, a^ only heir-at-law of her 
iliother. This bill was filed against them by the testatdr's 
other jchildren, who insist that Mrs. Dfeuson took bi|t a life 
qstatef in the property' 5 and they pray for an account, distri- 
bution, and general relief. ^; ■_*] ''■ 

The chancellor dismissed the bill for w'ant of equity-; Kf^ld- ' 
ing, on the authority of Randall v.- Shrader, 20 Ala. 338, that 
tKe absolute property vested in Mrs, Denson under the eighth 
clause in the testator's will-; and his decree is now assigned 
for error. 

BuPORD & PuGH and Jas. E. Belser, for the appellants : 

1. The importance of the introductory clause and preamble 
,in a will, as manifesting an intention of complete and ultimate 

disposition, has been gradually declining in courts both of law 
and equity. "After some fluctuation, it is at length clearly 
settled, that, althoug-h they make profession of disposing of 
all the testator's property, ill the fullest manner, they will not 
operate to carry the word? of the devising clause beyond their 
legal sense and signification." — 1 Roberts on Wills 432-435; 
Vanderverker v. Vanderterker, 7 Barb. S. 0. Rep. 221. 

2. Whatever a testator does not grant by his will, remains 
in him, and reverts to his heirs and distributees, after the dis- 
positions actually made by liim arc over. — 4 Kent's Com. 353, 
Lecture 53. . 

■ ' 3. The extent of the estate gj-wen.to the ^idow is express, 
certain, and clearly defined — "to have and hold during her 
natural life "; the superadded power, " at her death to dispose 
of" (the very same property which was granted to her for lier 
life), is a distinct gift, not of an additional interest or estate, 
but merely of a power to dispose by will and not by writing 
inter vivos. Such a power of disposal, even if it were general, 






^^ ALABAMA. 



Cfeffeon et al. v. Alitchell anjfs^fe. 



irf connectix)n*with an express estate for life so clearl)' doflrfbd'm" 
cannot operate by way of enlaj'gempnt of the life estate ,into 
■ **fee. . The implication, to control the technical meanings o:^ 
Vords creating a previous express* estate, must al-?vays be* a • 
necessary implication. No such implication arises here. — 
iPaleb V. Field, 9 Dana's R. 346 ; Pate v.* Barrett, 2; 26. 4^6;' 
16 Johns. 588- Rubey'v. Barnfett, 12"Misso. 3; 1.0 Ves. 370 j ; 
1 P. Wms. 149 ; Etilliam v. Byrd, 2 Strpb. Eq. 134;. S^iitli v. . 
Hilliard, 3 ib. 214 ; Roith v. i^eymotti-; 4 Russ.' 26^; 1 S^lk. 
239; Archibald v. Wright, 9'Sim: 1&2; 3'liitt..4l5; Burwell 
V. Anderson, 3 Jjeigh's R. 355j Smith v. Bell, 6 .Peters' Rept.. 
•'t^-g; Ward v. Amory, 1 Curtis^ R. 419; K0yeg6n Chattels,^ 
§§156 to 170. , . ■ /- ^ Y/ '•" 

" The pxpress estate for life Jiegati'^es the intention to -give 
•tbe ab^olu-te* property, arid <3onverts these wqrds into words of 
mere power, which, standing atone, would have been construed 
to Gonvey an in,terest." /'Whsre'SUGhiiiconsikent life' estate 
is giyen, the fee does not pass;- for this^wholc matter' feists 
upon.intention." — 3 Leigh's R. 356-7^ and authorities sy,pra. 

A. bequeathed a slave to his^ wife for her Jife, and sffter her 
death to be eiiiandpated : Held, tliat although tl^e jTrovisibn 
for. the ^mancipation was'.v^id,' yet the sidy e did not, belong 
absolutely . to tlie". wife, but, -after her death, went, to' the 
next of kin, or passed 'by 'the ^^e^duary claiise,^, if ^there was' 
orib^^Cresswell v. Emberson, 6 L-ed^^q.-lSl; 'Tanflersbnv. 
Cktlbertson, 10 Sin. & M<trsH. 150; T'B^rli. S.' C. ifeep. 'a^L " ~ 
V^e principle of these cases is, .rtliat " the testator ^expresgly » 
liijftits the duration of . the estat(3 tj> t^e life of Hhe wife; .{ijjd 
there is to be ho' enlargement of tfiat estate by' implication. 

in a will, the grammatical construction must*- prevail, unless 
a contrary intent jofein/^ appeals.— Lg»ve" v. Lov^i; ^Jt^d.E^. 
•Rep. 201. .• 

-Elmore *& YIncey, jcmtra: 

1 . The law never f^vqrs 'an intestacy as to a*ny part of tlie 
personalty, when there is a teill. "' ''.'-,'' ;, " ". 

2. The general intention appar6rit'in'thelHll most preyail, ,. 
^less -forbidden by law.— Heirs of C^pelV. McMillan, ,8 For. 
i97, and autfioritiee cited on pp.'2d4-5.' -^ * '. ^ ' .;^ 

B» T^ ascertain the intention, evefy paft of the will is te- " 



JANUARY TERM, 1855. 365: 

._ . . ^ , . j^ s^ . ^ ^ . , 

, . . Depsoti 6t al\ v. Mitchell and Wifr. 

. — .-■ ^i - '■;>. ■ — ^ 

,. -amined and cornpared, the one with the other. In a case of 

*' doubt whether an absolute or limited estate is given, the in- 

J* troductory part of the will jliay be referred -to for the,purpiiSBe< 

• » of solving- it. — Schriver v. Meyer, (7 Harris,) 19 Penn. 87, 

.» where many of the cases are reviewed ; Wood v. Hills, ih. 513. 

. •* * ■^. Thig rule is educed : 'Wherever -tlie 'introduction «hows 

an intention to dispose of the whole of the testator's property, 

and it can be brought down to and connected with the devising 

clause, the introductory and devising clauses are construed 

together, and the inte^-est devised thereby is an absolute one. 

19 Penn. 87; 14 S. k R. 95; 10 Wheat. 204; 19 Penn. 513.. 

•• '. 5. The- property in the eighth clause of the will passed tg 

' .the. wife iibsolutely, 1st. A bequest of personalty for lifej-, 

with a general power of disposition, notlimited as to the objects, 
• or mode, gives the absolute estate.— Randall v. Shrader, 20 Aha?. 
338, and oa^es citedin the- opinion; 2 Wilson 6; 3 Yes. 299; 
'' 1 Leon.'256 ; 2 Yes. 588 ;-2 Atk.' 102;; .1 Wt^sli. (Ya.) 266 ;" 
. 10 Mod. 71;, 16' Yes. 135; 19 *6. 85.;"2d. The intention of 
theiestatgr was, to loestow.this property absolutely on hiSt- 
wife. The introduction dearly shows an' intention. to dispose 
of !'Jjis property" -(that is, of all his pi-of^erly) "as follows "- 
(that i&, as the, same is given in the f^Uowiiig nine clauses) ; 
and this necessarily connects the intrbd^ubiory and deyising 
clauses,. apd' of couree .the eighth, is gonnected^with tli^ intro- 
i^tion.- ..Th.e Janguage^and meaning of these clauses is,' then, 
iSm; tHap.h-e desires his property in thasul)j<3'ctsnained in the eighty 
plause to be disposed of as follows, &c. " • '. . 

, A^ain ; looking kt. tl^ese and the otiier parts of the will, 
the tariety of bequests and variety oJjimitatioha on the other 
bequests, and" .the -variance between the limitations in the 
eighth and'nihih clauses, the iafeVence is plain- — "^suoh as will 
. .satisfy- thd fconscienc6 of the court"' — that the object of 'the 
testator wa« to disptise of all Jiis property, and to dispose of 
all'tis-ihterG^ inthesabjects mentioAed in tha# clause. The 
eighth clause is by the terms of the introduction as much con- 
nected with it- as the first clause is. This being the intention-, 
the court. wiU (^iTy ft into effect, as. there is no prohibition oC • 
law against it. ' . •■ 

The question is on© iDf *iit€entions .We admit, when*the^ 
limitation is for life, with a^'power of disposition, and the qs-j 



§66 ALABAMA. 



Denson et al. v. Mitchell and Wife. 

i : ^ 



ercise of this power is resti'ained either as to the objects in • '„ 
whose favor it is to be exercised, or as to the manner in which "* 
it shall be exercised,, the intention. is- apparent that this is. but - ''i • 
a power, and not an interest. Or, if there was a limitation » ♦ 
over, in default of the appointment or exercise of the power, » 
then, also, this is evidence that the* power should not be an- • , 
interest, but an authority merely. On this view most of the 
conflicting decisions may be reconciled, — 1 Sugd. on Powers, 
mar. p. 127. We claim, however, the benefit,of the converse 
of these propositions — that when there is no limitation over 
on default of appointment, and no restriction as to the objects v 
or mod€ of exercise-6f the power, this is »eviden6e of the in- -» 
tention to (Jispose of the property absolutely. 

6. The words " at her death", followingJihe words "during 
her life", are "equivalent to " then"-, and will be considered as • 
words of relation, and not of time ; and that the remainder of 
the estate was to be disposed of at her will and pleasure ; and . . 
that such disposition wks to take eifect at her death, and not 
that she was at the moment of her death to have the power 
of disposition ; for that would mean after her death, which 
is impossible. — Tomlinson-v. Dighton, 10 Mod. 71; Boraston's . 
case, 3 Coke 21-2, *'i.^v* '•''--• *"'"'« *'.>* 

..•7* W^hen a genei-^tF poweif' of disposition is reserved or 
givenof property or a fund, in which the person having the 
power'lias no present interest, and can have none until a futui'e ^ . 
eyent, as his death, the pr6perty or fiind becomes his absolute "" j^ - 
est§Lte on the happening of the event, witliout any exercise of 
the power.— 3 Atk. 26^; 2 Vefn,.'l^l; ^'A^k. ^56; 1 tn^'ey 
2m; 2 Atk. 172; 3 Leigli 348; 12 Miss. 3. ■' ' - 

The principle of these decisions is, that he .who has .such a 
"pOwor of, disposition has all ^he attributes of ownership over . 
the property at the time theinterest is to take effect if the . 
power was exercised ; an (^ we assent to this asj sound sense, 
.and law, .Mrg.*^Denson liad an estate for life, wrth the" unlim- 
ited power to dispose of the property at her death. Has she . .v-' 
less of the attributes of ownership, than if she had been vested 
■ with the power of disposition at her death ? Has she a less 
interest in th^ remainder, than if it had been to the children 
jrf'Denson for the life of the wife, and at her death to be at 
aer disposition ? Y^t this is admitted by all the authorities 



JANUARY TERM, 1855. 367 

. — ^ — _ , I — — 1 ■ — — — ■ — ■ • 

Denfeoa«taL V. Mitchell and Witfe. 

■ •• • ' - m • ■ ' — — ■ — ■■ ■ — — —■'^ '-< 

' . to vest the absolute esfete-in her at her death. The particular 
, estate, and the power of disppsition, are the satne in both the 
' Sibove suppositions. Tiie only difierence is, in fact, the par- 
ticular estate is to be enjoyed by different persons. 

These cases assert the following doctrine : " Where there 
is a particular limited interest, and this sort of power, liberty 
or authority, though the latter without a particular partial 
interest pointed out might have amounted to an absolute gift, 
yet when both occur, the gift is held to be of the limited in- 
terest, and the other to be but a power, and not' an interest." 
To analyze thig : • When a limited interest is given, with an 
unlimited power of disposition, the limitation of the interest 
, is 9. limitation of the power. But if 'no " particular partial 
interest had been pointed out", but there had been a general 
interest pointed out, or no interest pointed out, then the power 
"might have amounted to £Cn absolute gift"; and these seem 
to have been adopted by American authorities as sound rea- 
soning. We think there are two errors in it : first, if there 
. had been algeneYal interest pointed out ox given, the power 
was unnecessary, and could not enlarge the estate ; and, second, 
■ the power is limited by the particular estate, and not the es- 
tate By. ihe power. The power succeeding the mention of the 
. property given is the limitation of the interest. liow would 
it be, if in his will he gave to his wife the unlimited power 0/ 
*dispositiopat her deatji, and gave to his cTiildren during hei; 
..life the enjoyment .of the property, and by a codicil had con- 
> firmed tliis will in all resijects, save that he^altered the estate 

* for -^fe.fr^m his children and. gate 'it to his wife ; or by will 
gave the property to his wife for life, and at hei- death to his 
children, and by a codicil revoked the gift 6f the remainder 
to hi« children, aiid gav« to his wife the unlimited power 0^ 
disposition at her .death ; can it be doubted what must be the 
constriction pxit i^pn tl^e will ? There is no diflFeren'oerin tbe 
cases, asf to the legal effect. There is no limitation over in 

• *tlie will on default of appointment; and the, children, not 
.being named, stand precisely in the condiliou of the hypothe- 
sis, where the pmitafion of the remainder to.tKem was revoked 

-. ty the codicil. •, ,,, . 'i^^^. ^.-.^.^^X- ■:■... \^j,^..- 

The rule in the above authorities is tjfie df constrtictwu. 
only. They say, such an interest being limited is evidence 



"♦. 



y& - ALABAMA. 



Densoa elTAl. v. Mitchell attd Wife. 



that ^e -testator did not niQan the" poVer to be an interest, 
but an authority iterely.- But if, from the other parts of the 
will, or the peculiar phrasfeologj^ it appears the testator did 
inteird this pQW(^r ;as an -interest', then these cases are of no • 
aiithority; and the court \Vill caiM'y the intention into effect. 

These cases hold; further, that i^ the testator give the pro- 
perty for life, w.itb directions to sell at -the death, and with a 
power to^the tenant for life to dispose pf the^preceeds of the ■ 
8ale,^the "te^iant fot Me takes an al>soltite estate •in.the whole 
proceeds. — -1 Vesey 2'67;' 3 L(5igh.3'48. It is inconceivable 
how a'bequestforJife, with power to disppse of the proceeds 
when sold at lierdeath,'is ;an absAiti'tfe estate, wokile a poWer. 
to dispose of the property itself is a mere authority. It is a 
distinetion without a difference • anjl t^ie cases lose ,th«ir 
weight as authority. ^ ■ ' ' ' ' ^ 

8. The -negroes mentioiidd in. the first sentdiice of the eighth 
clause were giv,en absolutely. The twolsequests in this clause 
q,re disjoined*, and the first is given without any liraitation.-*-t 
4 McCoi-d 6'0.; ^ Strob. Eq. 327; Doug. 730; 'BD.& IJast 64r 

Most of the^caseg cited byithe appellants are'cases'in which 
there was either, no-, power pf^ disposition, or there was a lira- 
it^tion ovej", or the ppwe^-was limited a^ to thfe objects or th^ 
mode of exercise. ' _^. .•*,,' * • ■ • 

••Randall v. Shrn,d^er-, 20 A-l^*..338, is idigniical with; the pre- 
senfcase ;' the differeyace, if any; being in fa^or of th^ pjr^sent 
cas6, as it IS a will; The.qurestioh in that case was, what in- 
terest did the wife tale uudej- the instrument? On the face 
of tEe writing, it was' held, ^he took an absolute estate.' The 
construction put on that Seed, ahd on this will must be the" 
same. Wfiat interest did Mrs. Denson take Tender this will? 
The provisions in the will and deod are, in, legal effect, and 
alqjost in language, the same. • The decision- was a (iorrect 
one, and .commends itself to the good ■sense of every Wind, 
legal or olher\vise. ' ' 

*■ On t^e qiiestion of inteirtiori r Lands to' a devisee, tO be fty * 
hirt freely possessed and- Enjoyed, 'passed the absolute estate, ' 
although no wjbrds'O'f 'inheritance were added, vitliout which • 
it was but a life estate ; but the iwtentio^i was upheld. — 1 S. 
& R. 144; 12 ib. 54. 



^ JANUARY TERM, 1855. 369 

Denson et al. v. Mitchell and Wife. ^ 

CHILTON, C. J. — The leading object in the construetion 
of every written instrument is, to arrive at the true intent 
and meaning of the parties to it ; and if the courts can give 
eflfect to such intention consistently with the rules of law, they 
will do so. In the construction of wills, especially, we must 
struggle to. arrive at the true desire and intent of the testator; 
and to do- this, we should look to the whole instrument — the 
introduction, preamble, and different items and clauses, and 
see the bearing of each upon the clause to be construed. At 
the same time, however, the words of the devising clause can- 
not be ordinarily carried beyond their just legal import and 
legitimate meaning, by any supposed general intent to be 
gathered from the introductory clause or preamble of the will. 
1 Roberts on Wills, pp. 432-5. It is only in cases of doubt, 
where the words of a bequest may be construed more ways 
than one, without doing violence to the apparent intent and 
the rules of law, that we resort to the introductory part of 
the will for the purpose of ai^ in solving such ddubt—lfl 
Penn. 87; ib. 513. • /•' ■ .;-e *>;A 

We are of opinion, that in the introductory clause of this 
will there is nothing inconsistent with the possibility of a re- 
version back to the estate of the testator of the property men- 
tioned in the eighth clause of the will. The language is : 
"I, Jethro Denson, being", &c., "and desirous of leaving this 
will", <fec., "desire that my person and property shall, after 
my death, be disposed of as follows, to-wit." Then follow 
the several clauses, seven in number, making dispositions of 
portions of his property among his children, vesting life 
estates in his daughters, with remainders to the heir^ of their 
bodies living at their death, until we come to the eighth, 
which is the clause we are called upon to construe, and which 
is.in these words j "Xwill and bequeath to^ my wife Rebecca 
my negro woman known as Little Ferxiby, and her children 
and grand-children, with the exception of her daughter Nancy. 
I further will ^nd bequeath to my wife Rebecca negro man 
'George ; also a woman known as Big Ferriby, and her three 
youngest children ; also, two negro men, Cupid and Jack ; also,- 
.% woman known as Old Nancy, and all of my household and: 
kitchen furniture ; also, fifteen head of stock cattle, five head 
of horses, one road wagon, and ail of my stock of hogs, plan* 
2^ 



STO ;^^ *ALABAMA. 



Mason et al. v.- Mitcliell aad Wife. 



tation. tools, aud farming utensils ; all of which she is to hnvc 
and hold during her natural life, and at her death to dispose 
of at her own will and pleasure." 

Taking a common-sense view of this bequest, it would rea- 
dily occur to the mind, that if the testator intended to vest 
the absolute property in his wife, he would have given it to 
her as he did other property to his sons. But he does not do 
so : when he comes to make provision for her, he expressly 
limits her interest to a life estate ; and to hold that the abso- 
lute property passes in the chattels, is to do violence to the 
testator's language, and, we think, would contravene his 
clearly expressed intention. 

■;t^he superadded right to, dispose of the pr.feperty at 'h'^r 
death, at her own will and pleasure,, we think, has not the 
effect of enlarging the precedent gift for life so as to vest the 
absolute propefi-ty^ Taking the. whole will together, and bear- 
ing in mind tlie language employed by the testator when he 
would create or vest an absglute property, and the peculiar 
and guarded manner ia whieh ,this bequest is expressed, We 
do not entertain a doubt that the "testator meant what he 
said — to give his wife but a life estate, and to vest her with 
ptywer and authority to dispose of the remainder ; ^nd, per- 
haps reposing with confidence upon the belief that she would 
execute- the power of disposition, he makes no provision as to 
what shall be done with the remainder iu default of appoint- 
ment. In that event, it goes back to his personal representa- 
tives, to be administered as in case of intestacy. 

The authorities, both English and American, see'm generaMy 
agreed in the i^esition, th§,t an express estate for''Ufe,glyeu. by 
will, negatives ihc intention to give the absolute property, 
and converts word^ conferring a rigl^f of disposition into 
Words of mer-e power. -See the-authorities, collated with nluch 
industry, upon the briefs of the learned counsel. • "- 

The case of Randall v. Sliradcr, 20 Ala. 838,' which arose 
u^on an ante-nir)3liaLjeoi*tract,.wasa-eGrrect decision ; foxtb^ 
husband, by the contract, effectually - excluded his marital 
.rights from attaching to the p\*operty. True, the reasoning 
^ts the deci^oti u^oh^notheiE ground, and tliie would ?eem 
to conflict with i he-views above expressed, unless a distinction 
Cl^ ^©.-^j^^tt Aaftween the construction of the clause author. 



JANUARY TERM, 1855. \ gb- 

Cbaftibcrlain & Co. V. Mtistersori. ■ •' '• 2L'' 

: : ^ 1- ..-, — : . ■ ■ - ■ >"- - ■■^ 1 ■ . . 

izinff the disposition" of the property by tlie tenant for lif^S^-'- ..* *" 
when employed in a will and in a deed. I shall not stop to 
inquire whether such distinction exists, ngr whether the rea- 
soning of that case caif be supported. As- we have already 
said, an almost unbroken current of authority, both Ilnglish 
and American, as. well as the principal text-writers upon this 
subject, have settled that words of disposition thus superadded, 
after an express, limitation of a life estj|tc,: merely confer a 
power, and not property. Theii- effect is not, therefore, to 
eulargiB by implication the previous estate; but, upon the 
death of the life tenant, and in default of appointment, a quasi 
reversion results to the representatives of the iestator, or it. ' . 
falls into the residuum, according as tjie will may direct. 

After a careful examination of all the authorities cited, and 
many which are hot found on the briefs, we feel constrainecl 
to hold, that the decree of the chancellor is' erroneous, and 
his deciyee must-thei*efore be toevtspfied, and thex^ause remandeJi^^ ' 



• CHAMBERLAIN & CO. tvv. MASTERSON. 

1. As to Jtbc distinctiou between guests and bottfcleK at a hotel, and the liability' 
of the laii41ord to each fof the loss of goods. * », » •• \. 

.2. If a boai'det at*a hotel fails to take such care of his. watch as a person of or- 
dioaVy prudence sho«ld take, tJie landlord <pill not be iTspbnsible f(t^ltg loss. 

3. On the request pf the jufy for further iastructiQns,Jihe ptesidingsjudft^ skid, 
. "I pereeive fr^ra your questi«;N» ftbat yooi' mind.? h^ivc befiu Baislfki ky a case 
; re^d by, defendant's .QounselY/' and. then stated tq them, " .tliat Jhtfy should 
» receive the laW goly frookthe court,— thiit counsel often Tead books to, the 

jury t» explain' tl»emsdves.2lorc cleai^y aod*forcibly,but th\t "theymust not 

"' rpQeive khcm ste liw, except so far.as san^tion€^ib5*tUB'cbii?t;":'. lielA^ (bat 

. there wa.s no* error in these iastruetions. '**> f.^ 'ii/ <»':J**f jv;^-^*' ^-.KW" 

4. The refusal -of the -court to allow counsel, aftef the ar^ment h^\)e^D clo^ 
and the cauSe submitted to tie jury, to eaplain p, distinction applicable to 
thfe case^ is not revisable on error : sugh matters properly belong to the coii- 
duot of the oaufer, apd ai'e entfusted to tlfe distretio'n of the presiding judge. 

6. It is error to instruct tlie 'jury, "that the main charge was t<),be-witl\ them 
the controlling part of thp charge," , , . , 



372 a;--^ ALABAMis"^ 



Chamberlain & Co. v. Masterson. 



Appeal from the City' OouH pf Mobile. 
. vTried bfefore the Hbn..Aia:x^MoKiifSTRY. 

.i/Tnis action was brought by Hugh Masterson against Cimm- 
bferlain & Co., to recover ''one hundred dollars damages for 
the value of a gold watch, chain and key, stolen from the room 
occupied by plaintiff, as ^he guest ox boarder of defendants, 
at the 'Battle House', then a public inft'of Mobile ; the said 
defendants then and there being the lessees and. proprietors 
of said houae ; and the said watch having been stolen, by one 
of the servants of said proprietoi-s of said house between the 
tenth and twenty-fifth of the month of— — , 1853." 

Other counts were added to the complaint, " by order of 
the court ", in one of which it is averred, that the watch was 
lost by plaintiff from a room which he occupied at the Battle 
House, then and there a public irm, of which defendants were 
at the time lessees and proprietors, and the plaintiff their 
guest ; in the second, that the watch was lost by plaintiff, 
without any fault or n'egligence on his part, from a room which 
he occupied as a.guest at the Battle Plouse, a public inn of 
which defendants were the owaers ; and in the third, that the 
watch was stolen from the room occupied by plaintiff in the 
Battle House, a public inn of wirich defendants were lessees 
and proprietors, and that it was stolen by one of the servants 
of said house then in the employment of said lessees and pro- 
prietors. 

To the first count in the amended complaint the defendants 
pleaded, " that the Battle House was not a public inn, and . 
that no watch was lost as charged"; and tp the second and . 
third counts they took issue, in short by consent. 

On the trial, as appears ft'om the bill of exceptions, " there 
was evidence tending to show that plaintiff was a guest 'at^ 
the Battle House, an inn, or hotel kept by defendants, as also 
to show that he was.a boarder ; that his watch which he wore* 
was taken from his rot)m in the Battle House ; that the room 
was attended to solely by the servants of the hotel, one of 
whom daily visited the room for the purpose of cleaning it; 
and that this servant kept a key to unlock thie as well as many 
other rooms on the same floor." 

" The court charged in full and at length on the liability of 



JANUARY TERM, 1855. ^ 



Cbaraberlttin & C9. v. Masterson. 



innkeepers and hotel-keepers to ^est&.and bOLarders,, and t^e 
duties'of guests an9 boarders ; «nd amg«g other charges, t\^t- 
if they believed that the watch was taken from plaintiff's room 
in the hotel, and was taken or stolen l>v the defendants, or by 
JJjjB servants employed .by them in the house, ox lost -tirrough 
the negligence of said servants, without any negligence on the 
part of plaintiff,, then the defendants were- liable to plaintiff, 
if he was either a gues4; 'or a JDoapder." 

The defendants excepted to this charge, and requested in 
writing'the following : " That, if the juvy believe that the de- 
fendants used ordinary cgte iu regard to the propef ty of the 
plaiu'tiff, and they find the plaintiff to have been a boarder, 
the defeijdants are not liable.; also, that if th,e jury believe 
Haigterson was a guesf. ^t the Battle Ht)use, -and that he w^s 
negligent, he cannot recover"; which charges the court gavje. 

''On the next morning, the jury came in, and requested 
some explanations in reference to the two»last charges given 
by the court at the request of the defendants ; in reply io 
which the court declined to say anything more than had al- 
ready been said-, except that the main charge was to be with 
them the controlliBg part of the charge ; to which defendants 
excepted. . • 

• 'After a time, the jury came in again, to- ask further ques- 
fio5is ; in reply to which the judge asked them, if they referred 
to a case which defend^ints' counsel had read in his argument 
from one of the English Reports. Their foreman said, 'Yes'; 
and the judge then said, 'I perceive from the questions that 
your minds h?cve been misled by the case that was read ', and 
then stated to them, that they should receive the law only 
from the court ; that the counsel often read books to the jury 
to explain themselves more plainly and forcibly, but that they 
must not receive them as law, only so far as they were sanc- 
tioned by th^ C9.ui(t.; to which defendants excepted. 
" "Tlie jury then retired, and -shortly afterwards sent a slip 
of paper by the sheriff to the judge, on which was written, 
' Question by "onp of the jurors : If the jury think that Mas- 
terson was a boarder, are the defendants liable as though he 
was guest ?' which the court read aloud, and, the defendants' 
counsel being in eOurt, <^alled his attention to it, and then sent 
for the jury, and repeated to them what had been said to them 






.«?^'^ Alabama. ^ "^ - •- 

-J : ^_-__., , . _>«i* 



Chatrtberlain &Co» t. MaSterson. 



' in the njain charge of the court ;. arjd^in answer to a -question 
•"bj^ one of tlie jury, as to what was the test of Masterson's 
negligence, the coart asked theul,-if they had come to any con- 
clusion aS' to the ^ fact whether Masterson \ras a guest, or a . 
boarder. The foreman answered, that tliey found that M-as- 
terson was a boarder, and that the defendants \yere innkeepers. 
The court then ch|irged the jury, tliafc'if Masterson took such 
' care as a reasonable and prUdent nian would take of his pro- 
perty, he wcftild'uot be guilt}': of .negligeilce,' aad that if he 
did not take such care- Be would be negligent ; and that if he 
•.did tafcogueh car« of his'wat^ Q,^.a. reflsot»a|?lefftnd prudent 
' . dian wotild- take of his property, and the |')voperty wa^ tJiken 
or stof^i by the servaTits of- thei defendants' employed in the 
bojise,* oK'iost t^irougW thiBir n^egli^'enije, the plaintiff was Ofntl- 
tied to recover ; to which cltarge the defendants ^xce^LJ'di;.* 
"The defendants' counsel »th en began to explain to the court 
the difference b^weeti a'^grfost and a boarder, btit the B&urt 
• declined to hear him", on the groiiitd that, the-'^othercoifijsel 

was.~not prefeent ; to whicl>h.e exoepfedA,"* - • "" .- 
V ".iJ^lThe appellants now fission for ei$'0|;-^ * 

:$> M i^ The charg'^ of ihe court making afe "innkeeper respon- 
'. sible for the loss of goods of his guest stolen by hijj serA^nt^, 
••«ry.2. The charge tnaking an ina&eeper sesponsible for Ifiss • 
"pfgodds of a boarder stolen by a sei-vant. 
., 'tf ^ 3. Error in f]ie charges genei-all);, . ^ ' 

\;V*' 4. Error generally in it3 colloquiums -with.the jury, and ife 
refusals to charge as req-uested.'' 
^. --,-■. '■■ ''" ■ , . . , 

•Jr^ijCaiLS, E. i Robinson, for the aj^^ellants : 

• The rule of law in the'Engli&h'courfs, as welt as of most of 
the courts of the United States; is, that "an innkeep&r is res- 
' ponsibje for losses happening ta goods of travellers becoming 
his guests, except such ds happen from thc-'act-of G^d, p\ibUc^ ^ 
eriemids? or by the cond"uct of thoj guest himself, his servant, 
or the companion he brings with him."-^Maspn v. Thonrpson, , 
9 Pick. 280,-. Galye's oage,' 8 Go'. ^2; Smith's Lead". Ga&,Tlpl, 
1, p. 266. But in deciding upona case for the iirst time in 
this court, it seems proper to consider the origin, causes, and. 
propriety of ^this rule, -and whether they -are &ueh as require 
our courts to recognize the same rigorous rule in all its ei^tent, 



JANUARY TERM, 1865. 

_ — — , , i — : . . , . i»«Wiy»rit ^ja^ 

Chamberlaio tt Co. .V. MasteBson 



or wlietber, at least,'"!! .sh'oul<}*'be'iiarrow€d te its stfietest 
limits. 

In the earlier and ruder times of Eiiofland, we readil}' find 
the cause and origin of the rule, and dif cover its justness. 
There was then but little genetal communication between the 
people of different sections "and districts ; the means and the 
habit of frequent intercourse, and the rapid circulation of 
trade and ideas,' had - not temo-ved the wide diffcFences tliat 
existed in the sympathy; knowledge, and feelings of distinct 
neighborhoods; the town wa& at a great remove from the 
co\intry,-«hid' an inhabitant* of onfe village felt rfs a stran'gey 
when bnsfness or pleasure-called hirn into another ; even an 
expedition to a neighboring fair or market was clothed with 
something* of die t^roj?arofa pilguimage toanknown countries, 
and a sense of insecurity accompanied every act of traveling. 
Traveling, too, had not on y its imaginary, but its real terrors : 
the' roads Were infested witli r^bbei^, ■th'ie^'^sf, «iid outlaws; 
it was in the power of any one, unlicensed, to become an inn- 
keeper ; and the comparative rudeness and lawlessness of the 
times invited unworthy j^ersons to tiiis calliiig, 'to abuse th^ 
confidence which travelers were, compelled to repose in them. 
The police power of. those times had nothing of the suificiency 
for« the" detection 'of'crim^ that now belongs to it. It was 
this weakness tliat ma.de the hundred responsible wherein a 
man was robbed, unless upon hue and cry the thief was taken ; 
and in this same weakness of the police power,— in the im- 
aginary as well as real dangers then attached to traveling, in 
the general want of rcspeetability in the calling of innkeepers, 
and in the temptation to collude with 'thieves and robbers to 
plunder unprotected travelers, we find the true and sufficient 
iarigin of tliis rigorous rule of the liability of innkeepers for 
iJi^the loss of the goods of travelers becoming their guests." 

But hardly one of these grounds remains nOw, in this age 
and coulitry, to uphold the rule. A common language, com- 
mon ideas, common laws, the habit of traveling, equal knowl- 
edge; and an active intelligence, have disarmed traveling of 
most of its terrors, both real and imaginary, and clothed the 
traveler with a citizenship wherever his journey leads him. 
The landlord of the present day, instead of being low in the 
scale of respectability, and in a position to invite unworthy 



376 • •. */^i ALABAMA. 



Chamberlain & Co. v. Masterson. 



suspicions, is always-— whether be swings his sign by the road- 
side, or holds his justice's court in a village tavern, or presides 
|imid the elegancies and splendors of a fashionable hotel — the 
feank, hon-est, intelligent, and hospitable gentleman, whose 
interests all lie upon the side of watchful honesty in regard 

;io the person and goods of his guests. No apology for the 
^gor of the rule can now be found, as in early times, in the 
Weakness of the police power : the laws, and an active, organ- 
ized police, are far more adequate now than then for- the de- 

'.-4ection and punishment of crimes. To this power belongs 
■ ^e duty : if it is inadequate, let it be improved and strength- 
ened. It is as unworthy and unjust to hold the respectable 
^nkeeper responsible for the crimes of others, to which his 
. Exposed situatii)n may make him a victim, as to re-enact upon 
the imiocent inhabitants of a hundred the ancient penalty for 

.' Jliie robberies and felonies committed within its limits. It is 
^ relic ojf h^lf-civilized times , airid- imperfect government, 

' ..w^hfch finds no support in the present well-ordered condition 
ftf society and the efficiency of government.. If, then, the 
jrfejtswis of the i:ulQ so entirely foil, why should -Hot tha r^le 

^, cease with them ? . , ■ 

■ j. It is begging the. question tp say, that " there is a confidence 

J jpeposed in the innkeeper that he will provide- honest servants, 
and that his negligence in this respect is a kind of implied 
^consent to the robbery." — 1 Black. Com., 430. What is the 
-business ofan innkeeper, but an ordinary-business — a necessary 
-ealling in the economy of society, distinguished by no peculiar 
privileges or emoluments? Why should it be loaded with so 
onerous a burden ? Id it, care and attention are bestowed 
lipou the pei-sons and goods of guests, in aonsi<leration of a 
price paid, and honesty and fidelity are required, as in cases 
of other ordinary paid bailees for service or hire, whom yet 
it was never thought to charge, except upon proof of negli- 
gence. What greater facilities have they, or what greater 
inducements, to abuse the trust, reposed in them, than the 

/ ^warehouse-man to whose sole custody untold thousands are 
.committed, and who, while bound to diligence and fidelity, is 
exonerated from liability for the embezzlement of his store- 
keepers or servants?— 1 gtew. 284; 13 Ala. 587; 4 Gill 406; 

' 9 Wend. 268. And where, in^the present condition of society 



JANUARY TERM, 1855. 



m^' 



Chamberlaiu & Co. v. Masterson. 



and the nature . of the business, do we find any ground for 
charging them for the criminal conduct of their servants?^ — 
Story on Agency, §456. 

But, liowever the law may be held as to the responsibility 
of innkeepers for the loss of goods " of travelers becoming their 
guests", the rule was early held inapplicable to boarders, and 
a distinction was early recognized between a guest and a 
boarder. A guest M'as a traveler or wayfarer ; but a person 
who came upon a special contract to board or sojourn at an 
inn, was not in law a guest, buta boarder, — Bacon's Abr., tit. 
"Inns", c. 5; Story on Bailments, §477; Comyu's Digest, tit. 
"Action on the case- fai:' negligence", (B) 12. The same lia^ 
Vility is not incurred in tegard to the goods of boarders as to 
the goods of wayfarers : to give a boarder a remedy again^ 
an innkeeper, the latter must have beefl guilty of culpable 
negligence.— Authorities supra ; Manning v. Wells, 9 Humph. 
746; Parsons on Cont., p. 628. The rigor of the' general rule, 
and its inapplicability to the times, should incline the courts 
to the recognition of this distinction.- 

The court erred in telling the jury that they were misled 
by a case read by defendants' counsel. The court is to decide 
jthe law, and not the case. It required a participation in the 
deliberations of the jury, to determine what was operating 
upon their minds, and enable the court thus to address them; 
and to tell them they were misled, without showing thenj ■ 
wherein, was calculated to confuse them. 

tTM. BoYLES, contra: 

The evidence tends to prove that the watch was stolen by 
one of the servants of the hotel, or lost by his negligence ; 
po other person having access to the room than the servant 
who was provided with a skeleton key, which was kept for 
the purpose of opening the door during Masterson's absence. 
The landlord is responsible for the dishonest or negligent 
«,cts of his servants. Masters, also, are answerable • for in- 
juries occasioned by the wrongs and negligence of their ser- 
yants, if committed in the exercise of the functions in which 
the servants are employed by their masters, even when the 
latter have no power to prevent them, and they are committed 
in their absence. This rule was established to make masters 



ft- ^' 






Chamberlain & Co. v. Masterson. 



•careful in the choice of those whom theyemnloy. . Innkeepers 
are held responsible tt)'as strict an extent «is common. bkiie^^, 
and the principle was taken from the Roman law. — Story oh 
Bailiji., §§ 470, 471; Story on- Agency, p. 637; 2 Kent's Com. 
592; .Walker V. Boiling,^ 22- Ala, 294..' 

k The case of Manning v. Wells, 9 Humph. 746, which is cited 
*l>y appellant's counsel, has no application to this case, as will 
be seen by refepeiice'to the fapts.- 

. GOLDTHWjlfP'l&VJ.--T|ie law held the innkeeper res- 
ponsible , to- travelers whet became Ma guests, for , all ' losses 
infra kospitium, ifi every C^e, n.nless Irepro'^fid that it was not 
owing to any default in'jiim or 1ii^s 'servants (Calye's case, 8^ 
Co. '32) ; and some of the cases go further, and hold him liable 
for the acts of -.other gupsts.^ — Jonbs Onr-Bailm. 94;' Stoi-y oji 
Bailm., § 470; 'Shaw v. Berry, 31 Main« 478. But'^there is a 
distinction between tlie liability of innkeepers towards guests 
and' boardeifs, which was taken at anieaLrly day:— jOaJye'st?ase, 
»upra; Bacon's Abr., "Inns -and InnkeVpers'', c. 5 ; Story on 
Bailm. (4th ed.) §.477 (3). If the goods lost belong to a 
boaMer, injor^ec t<5" charge, iho. innkeeper; he' would, be re* 
qiiired to show that the loss, was OM'ing to" the failure" on his 
part to discharge the duties which his situation as boarding- 
house-keeper, or the special centract^.-s^ith * the • other "party-,,' 
imposed on him ; aild these duties must be measured by the 
analogies of the law applicable to other species t)f bailments. 
The hotel-keeper employs the servants to atten^ to'the roctms, 
arid his boarders have a right to expect that h'^-will employ 
those who are honest ; and'if he fails to db so, and a loss is 
thereby occasioned, without negli'gence on the other side, hte 
is held responMble, precisely, on. the same principle that a 
steamboat owner is, if an injury is susta;ined by thefailure to 
employ a skilful pilot, or a careful engineer, or t competent 
captain. — Walker v. Boiling, -22' Ala. 'Ail bailees, are liable- 
to third persons for the acts of theii-agents^or' servants, doYie? 
in the course of their employment. We do not mean to say^ 
that it is not incumbent on- tbe boarder to use that "degree of 
care which ordinary prudence requires. The guest who, aftet 
exposing bank notes which he had in a box in the presence of 
many persons, left it in the,coimnercial room, was held guilty 



January term, i855. #« ' • 



C'hamberjain & Co. *v. Mastorson-. 



of gross negligenbe (Armstead t. White, -6 Eng-. LaV afid Bl^".' 
349) ; and if a boarder leaves money, or valuables, open- and 
exposed -in his room during his absence, it would be doubtful 
whether this would not be such negligence on his part as 
would prevent a recovery if they were stolen by a servant of 

i^tha touse. Neither gu6sts nor.boai*darg should tempt persons 
who occupy the situation of servants about hotels, in this way; 
and if the property was stolen under such circumstances, even 
by a servant .of 'the hotse, we^ar^^strOiigly indined to the 
opinion, that the keepeo-wpuld not.be liable. ' Here, however, 
no question of this kind, arises, as tiie record fails to show 
^]^y «egligeftee Gp.th.e pSr.tx)f t^l^^iioa^d'ei*,; aftd-altliougliv.it 
is td'be inferred from theclrarge given'by thejudg«,<asto what 
constituted negligence, that tlie question was raised, there 

' was no error -|n the" chaf^eai^n*;tlmt poinutj-wi^ioh was, in 

-efect, thatif tl^e -boarder, did not tako such care of his watch 
as a person of ordinary prudence should, the landlord would 
1104 be2. liable. 

Neither was there any error in what was said by the court 
to theijary, in relation to their beitig'nrtsled by the case read 
by the counsel for the defendants on the trial below. JVb?i 
constat that it l^vid down the law correctly ; but whetlier it 
did or not, we see no impropriety in the judge instructing the 
juty that thfey were not to r'fecoive it as Jaw farther than was 
warranted by the fcharge of tlie court. If the case read was 
regarded by the counsel, as a Qorrjpc^t exposition of tlie law, 
and applicable to the case on trial, lie njight properly "have 
requested a charge which asserted the same legal propdsition; 
but failing to do this, we cannot §ay there was any ei*ror in 
the action of the court in this respect. 

^j^..So, also, as to the refusal of the judge, after the argument 
^s closed and the cause submitted to the jury, to allow the 
counsel to explain the distinction' T3etwcen, a boarder 'and a 
guest. Those are matters properly .tjqlonging to the conduct 
of the cause, which are entrusted ve.iy pi'operly to the discre- 
tion of the judge trying the cause, and are not revisable here. 
But in instructing the jury that the main charge was to fee 
with them the controlling charge,' we think the court erred. 
When a charge is requested, which has not been given, is not 
abstract, and asserts a correct legal proposition, the party has 




>lt 'i '• 



HaiTis V. HiUraaa. 



the right to demand that it should be given, without any 
qualification. We do not meafi40 say, that after giving it, 
the court may not prevent its -undue effect by presenting the 
law applicable to the evidence on the other side, or any por- 
tion of it. It is frequently necessary, to prevent injustice, 
and to enable the jury to comprehend clearly the law appli-. 
cable to the case, that a legal principle which governs it in • 
one aspect should be pi'esented to the jury in. juxta-position 
with the law upon the facts in a different. aspect; and every 
one who has practiced before juries will understand that this 
course is frequently necessary to prevent one side from ob- 
taining an undue advantage over the otlier. But it might 
entirely' destroy the effect of the charge given, if, after giving 
it, the jury were told that thej*-mustbe governed by the main 
charge*, and such were, in -effect,* , the instructions given by' 
the court. We can imagifie no' case in Which such a charges 
would not have a tendency to mislead the jury. 

For this* ferfor, the judgment is reversed, and'' the cause 
ycemaaded; 






- H AREI& m. HIL£]|f^S. 

y - > ;.:•>■ .-vV^ • • 

i- The distinctions between the actions of detinue and trover are carei'ully 

; preserved in the Code, and an amendment of the c»mplaint wliich would 

convert an action of detiflne into an action qf tifover oannot be allowed. »!- 

Code, §2403. * * ■" ^ -. ^ • .».*. 

2. In detinue for a dave, a recovery cannot be had against ar purchaser at 

,T«heriff'8 sale, who, without notice that plaintiff intended to assert any right 

^ , iejhe slg,ve, parted witli the poseessioji .under a Contract of hiring before the 

suit was commenced. # . ,, 

"Appeal from the Cifc«iftf6^"t of Franklin. 
' ^ 7rie(J feefope the Hem. Thomas -^. Walker. 

'^'■^'ITETiinjB (und-er the dode) by John W. Harris agaihsf 
"Joseph Hillman, for a slave named Burley ; plea, not guilty. 
The plaintiff claimed under a deed of trust' executed to hinr, 



JANUARY TERM, 1866. 38i 

Harris v. Hillman. . *"'. 

as trustee, by one F. 0. H. White, dated March 18, 1844, 
and duly recorded in Franklin county, to secure a debt due 
to one Oscar H. Rolf; and the defendant claimed as purcha- 
ser at sherifif's sale, under an execution which was issued on 
a judgment in favor of Wiley, Banks & Co. against said 
White, which was rendered in March, 1852. 

" The plaintiff proved, that he, as trustee, had advertised 
the negro to be sold for the payment of the debts secured by 
the deed, on the very day the execution was levied on him. 
At this stage of the trial, the defendant introduced a witness, 
who testified, that he (witness) was in possession of the .slave 
at the time the suit wag instituted, having hired him from the 
djsfendant, soon after his purchase of him, for the remainder 
of that year. The plaintiff's attorney then moved the court 
for permission so to amend the complaint that it might be for 
damages for the conversion of the negro by the defendant, in- 
stead of a recovery of the negro himself, and insisted upon 
this right under the Code of Alabama; but the court over- 
ruled the motion to amelld the complaint, and the plaintiff 
excepted. 

. " The court then charged the jury, that the plaintiff could 
not recover in this-suit, 'being an action of detinue, if they 
were satisfied from the evidence that the negro was not in 
defendant's possession at the tinae the suit was instituted, but 
had been hired out by him for the remainder of that year to 
another person, in whose possession the negro was ; and to 
this charge, also, the plaintiff excepted, and took a non-suit." 

These two rulings of the court are now assigned for error. 

. Jno. a. Node, for the appellant : 

1. The court should have allowed tlie anaendment of the 
complaint. The defect, (if, indeed, there was any defect at 
all) was one of form. The object of the suit was, to recover 
the negro, or his value ; and the trye question in the case was, 
who had the better title, the plaintiff as trustee under the 
deed, or the defendant under his purchase at sheriff's sa^e. 
It was immaterial to both parties by what form of complaint 
their respective rights were determined — whether by an»ac- 
tion for the recovery of the slave, or for damages for his con- 
version. A judgment against the defendant in this action 



382 ' ALABAMA. 



^Harris v. Hillman. 



woiilS have been satisfied,nf the negro was not in his possess* 
ion to deliver to the sheriff, by paying his value. It is a 
mere technicality*thla,t rel^uires thedefendant in detinue to be 
■ ih the actual possession of the slave at the commencement of 
the suit ; and it ig not required where he wrongfully got the' 
possession himself, or wrongfully parted'with it. The amend- 
ment of the complaint would not have taken the defendant 
by surprise, and would, not have done him any injustice ; his 
rights would not have b<5en at' all affected, and he would have 
relied on the same evideticfi^ 4;o sustaia hi* title in> both cases. 
Code, §§2402, 2403.. \- * ,• ' • ' ' 

2. The charge of thje* court was Erroneous. ^ Th^'casfe of 
Walker v. Fenner, 20 Ala. 192, on which ii was based, is not 
authority since the adoption of the Code, which declares 
(§ 2402) 'that " all causes must be tried according to the rights 
of the parties, without regard to forms." It was certainly 
the intention of the Legislature^ in the*adoption of the Code, 
to abolish all technicalities and forms, as far- as possible, so 
that all causes might be determined according to the rights 
of the parties. But, even if Walker v. Fenner is still to be 
regarded as a correct decision, the principle upon which it 
was decided is n6t at all applicable to this case. There is a 
marked distinction between the two cases : Walker was never 
in possession of the negro after Fenner became entitled to it, 
but had parted*with the possession under a contract of biuitig, - 
as he had a perfect right to dp, owning a life estate which 
had not terminated at the time of hiring ; but the defendant 
in this case, knowing that plajntiff claimed, title to the negro 
under his recorded deed, wrongfully acquired the possession 
in the first instance, and wrongfully parted with it ; and there- 
fore, on the authority of what is said in Walker v-. Fenner, 
he was liable in detinue, and could not deprive plaintiff of his 
right to that action by hiring out the negro to another.^-- 
Hunter v. Sevier,/? Yerg*. 1 34 j- Haley v. Rowan, 5 Humph. 
301 ; 1 Wash. 12-; 1- Hayw.'l^; 1 Chitty's PL 120; and 
other Authorities cited in R. W. Walker's buief in Walker v. 
J^£nuer, supra. 

-Wm. Cooper, contra, contended, 1st, that the Code does 
• not authorize an ameudment which would change the nature 



JANUARY TERM, 1855. 383 

»__ : , .^^ ., , r^. 

' »■ fiarris v. HiHman. . ^ •'•.■;<;;'' *• 



of the action, any more than the previous statutes authorizing 
amendments in matters of form. — Aiken's Digest, p. 265, § 44; 
Clay's Digest, p. 321, § 50. 

2. That the charge of the court was fully sustained by the 
case of Walker v. Fenner, 20 Ala. 192, < 

RICE, J.---The well-known boundaries of the actions of 
detinue and trover, are distinctly marked, and carefully pre- 
served in our Code. A form of complaint is therein laid 
down for each of these actions. The form for detinue is un- 
der the caption, " For the recovery of chattels in specie", 
which aptly expresses the peculiar object of that action. The 
form for trover is undet the caption, " For the conversion of 
chp,ttels", which indicates. that conversion should continue to 
be, as it had ever, been, the gist of that action. — Code, pp. 
"552, 554. The judgmei^ in detinue is, that the plaintiff re- 
cover the, chattels, if to be had, (but if not to be had, their 
Value,) and damages for their detention. The judgment in 
trover is, that the plaintiff recover damages only. The evi- 
dence whicli will sustain detinuej-will n^ot, in many cases, sus- 

tain trover. , ^ - .' ' . 

*'<..*"' ' •' ' 

The pyescoit action is detmue. Tte complaint is in the 
ver}*^ form given in the "Code for that action, and is free from 
any' defect. The Circuit Court had no power to allow the 
plaintiff to couveirt thisjcompl^int iij.to a c6mplaint in trover, 
and properly overruled his motion to that effect. The power 
of that court-to allow amendments does not, and never did, 
extend so far aS 'to fallow -so^h change ifi a^ declaration or 
complaint.— Herring V. Glisson, 2 Dev. Law R. 156. 

It appeai:s that the defendant was a purchaser at sheriff's 
sale iof » J^rfiiary, i85SvOf the sl£sy«r h^i-e-sued' for, and thus 
"obfeined the possession ^in a manner which appeared to be 
lawful, and that soon thereafter hehii-ed the slave to another 
person. for thevreinainder of the year lrS53, wLthoat any notice 
that the plaintiff intended to assert any right to said slave, 
or to call in question th'e rigiit of (lefendant acquired at said 
slier iff 's sa!6'; and that soon 'aft^r ,lie thu§ parted witlj ,the 
possession under said hiring, tiiis- action of detinue was com- 
menced. 'Such parting --wiith the j5o3?ession under the con- 
tract of hiring,' without notice a'^ aftort^^jid, was not ^vrODgful, 



^S4' ALABAMA. 

Kennedy's Executor v. Doe ex dem. Rochon's Heirs. 

and the charge of the court is substantially correct, when 
construed in connection with the facts above stated. We do 
uot, however, inteQd to decide, that if it had appeared that 
the defendant parted with the possession of the slave under 
said hiring with notice that the plaintiff intended to assert a 
right to the slave, or to c^ll in question the right of defend- 
ant acquired at sheriif 's sale, that such parting with the pos- 
session would, of itself, have exempted him from liability in 
this action of detinue. — Walker v. Fenn&r,'20 Ala. 192. 

There is no error in tire record, and the judgment is af- 
fifjaved.. ' v 

.1 ,» t i i -m y g i - i f ii^ r i t , 1, 



lirENNEDY'S EX'R Jl'ftoijT^ btif. Itb^ON'S HEIl^ 

Ji JEvidence cannot be received in tlie appellate court to contradict the record 
.♦ in.tlie primary court ; nor will this court, on error, look to the American State 
Papers, as published under the authority of Congress, to shojv a mistake in 
the certified copy of a public document contained in the transcript. 

2. The act of Congress of May 8, 1823, (3 U. S. Stat. 699, 700,) "confirming 
'. claims to lots in Mobile," &c., confirms only those claims "which, in the 

. opinion of the conynissioner, ought to be confirmed"'; and the commiseioa- 
.er'fi report, on which the act is based, only recommends for confirmation, of 

i *dll the claims embraced in register No. 11, " the claims to such lots as were 
inhabited and cultivated under the Spanish Government, or such as were 

■ built upon by i)erraission of the Spanish authorities." Therefore a claim to 
a lot which was iqhabited and cultivated by one of the claimant's ancestors 
while Mobile was upder the dominion of Great Britain, though included in . 
the commissioner's report, does not come within the provisions of the act of 
confirmation, when it is shown ^hat the mansion-house, with all the improve- 
ments, was burned down during the siege of Mobile by the Spaniards in 
1780, and there is no proof of any subsequent inhabitation or cultivation 
under Spain. 

(Yhis applies to the claims of the heirs of A. Rochon, numbered 74, 75 and 

76, in the register (No. 11) of claifns " founded on private conveyances, 

^.- which have passed through the office of the commandant, but which are 

',^ founded, as the claimant supposes,' on grants lost by time or accident." — 
See Commis.sioner Crawford's- Report, in 8d vol. Amer. State Papers, p. 32.) 

3. The case of Doe ear dem. Farmer's Heirs v. Eslava, reported in 9th How. 
U. S. Rep. 421,- in which a similar claim was held to be within the act of 
confirmation, cannot be regarded as a judicial determination of the point 
presented in this ca8e,.,sia0e; np question was there raised as to the fact of 
confirmation. • ' . '♦ ' . 



JANUARY TERM, 1855. 



W 



KetMiedy's Executor v. Doe ex dem. RocHori'a H«rs. ., .• 

EHror from the f Circuit Court of Mobile. ''^' 

Tried before the Hon. Lyman Gibbons. 'f . 

Ejectment for a lot of land situated in the city of Mobile,' 
g,nd described as follows : " Beginning at the south-east cbr^-* 
ner of intersection of Conception and Government streets ; 
containing One hundred- and fifty-six feet front on said GoV". 
ernment street, by a depth of forty feet, more or less, on Coif-^* 
ception street ;• bpunded north by Government street, «ast by. 

the property of •, and south by the properly of the heir^ 

of -RochoB." ' " 

The action was commenced in June, 1849, and a trial was 
had in Maj', 1852, which resulted In a verdict for the plain- 
tiflfsi • The plaintiffs 'claimed as heira-at-law of* Augustin Ro'») . 
chc^n, deceased, whose tijle, as they insisted, was coi";firm<\€*" 
by thiJ act of Congress of May 8, 1822, " eonfirmijig claims ttir^- 
lots in the city of Mobile"; while the defendant, as the 6x^^' 
cutor of Joshua Kennedy, -deceased, derived title und^r -a ' 
Spanish concession to Th'omas Price in 1798, which "was con*''-, 
firmed by the act of Congress of March 2, 1829, and a patent-^' 
issued to Kennedy in 1837, rj • 

The defendant's bill of exceptions states, that " the plain- 
tiffs ^ave in evidence duly certified transcripts from the land- 
offic5 at- St: Stephens, Ala., showing the application of said 
Rochon, the- proceedings in the land-office, the report of Com- 
missioner Crawfor4 on .the claim, and also the survey of said 
lot as certified,; copieiS of all which documentary proofs pf 
title are hereto annexed in schedule A, and made a part of 
this bill of exceptions." The several documents set out in 
the transcript are correctly a!hd particularly described in the 
opinion of the court ; but there is no " schedule A" in the 
record, and nothing by which these documents can be ideati- 
fied with those referred to in the bill of exceptiong. 

The bill of exceptions further states, that " the defendants 
gave in evidence a patent ifesued to Joshua Kennedy, in right 
of Thomas Price ; also, th€i record of the proceedings in the 
land-office showing the applications for confirmation of sai3 
title of Price, maps, surveys, reports, <fec., as set forth in 
schedule B, hereto annexed as a part of this bill of exceptions. 
The defendant gave in evidence, also, the mesne convey^>- . 
25 



>^-: ALABAMA. 



• Kennedy's Executor v. Doe ex dem. Rochon's Heirs. 

ances from Price to Joshua Kennedy.; the death of Ken- 
nedy in 1838 ; his will, and the devise of the land to Hallett 
as his executor. The original Spanish concession, and the 
plat thereto attached, were also given in evidence ; and it 
appeared in evidence, also, that the lot sued for was embraced ■ 
within the said Price title, and within the portion covered by 
tjje first concession to Price." None of the documents here 
referred to as constituting the defendant's title are transcribed 
in the record, but there is an agreement of record, signed by 
the counsel of the respective parties, in these words : 
* ■ " " In this case it is agreed, that the record, plats, and doou- - 
ments constituting the Price title, with the certificates, plats, 
and evidences thereof, as foujid of record in the case of Doe 
ex d€'/n,.,Hunt, Hogan, and others, against Hallett & Walker, , 
reported in 7th Ala. Rep. 882, in this court, is made a part . 
of this record, and may be referred to as part of it, witli the 
repoi'ts thereof found in the public documents of the United 
States, (Amer. State Papers, tit. Public Lands, vols; 3 and 5,) 
the same being the Price title referred to in the bill of excep- 
tions, ^nd intended to be added to this record by consent, 
and now done." , 

I^he^bill of exceptions states, also,tkat " it further appeared 
in evidence that the land sued for was fenced in by the Uni- ' 
ted States, and taken possession of by its officers, at the time 
the Government took possession of Fort Charlotte, and it 
was held by the United States officers, enolosed as aforesaid, 
until about the time when the Fort-Charlotte lots were sold ; 
when this portion, and the lots arqjind it, were thrown out, 
as not appertaining to the Fort- Charlotte lots. It was further 
proved, that Mr. Acre -then setup some claim to it for the 
keirs of Rochon, and Mr. A. W. Gordon, claiming that he had 
•made an agreement with Mr. Acre to purchase the rights he 
represented,, entered-upon the possession of the lot now sued 
for and. the adjoining lots east and south of it ; but that tho 
lot now sued for was. afterwards claimed by the heirs of one 
Eapejo as b«longing to then?, apd Mr. Gordon gave it up to 
tljicm, and took possession of the other portions. The' heirs 
of Espcjo thus got itj enclosed it, and held it. Mr. Gordon 
held^the oth/?f .portions for somQ time, till they got into other 
hands by his deed ;.«,nd finally, nn 1&37, the parties holding 



JANUARY TERM, 1855. 38? 

* , K^ennedy's Executor v. Doe ex dem. Jlophon's Heirs. 

tUe other portions of the Rochon claim (being the lot south 
of the lot sued for) purchased the title and claim of the heirs 
of Rochon, being for the part shown in the plat south of the 
lot sued for, and exclusive of it. The heirs of Espejo re- 
mained in possession of the lot sued for, and Joshua Kennedy 
sued to obtain the possession from the tenant of Espejo; and 
it was suri"ender0 by the heirs of Espejo to Hallett in 1842, 
upon his paying them certain sums paid to the corporation for 
making side-walks, &c., for which the corppration had given 
a title to said Espejo ; and thus the said defendant obtained 
the possession. It appeared that Kennedy, and those under 
whom he claimed, had possession of the lands of the Price 
title in Spanish .times, and before confirmation, but no actual 
possession of this part. There was no»proof where the lot 
of (the name is illegible, but supposed to be Le Fkaux) was ; 
nor was an^ evi^epce given to locate the lot of Rochon, other 
th^' the purvey by the United States, and thjs cl^im by Acre 
as aforesaid, and tlje sale by them of the adjoining portions, 
and the assertion, of claim in their conveyance to it, and by 
offers t<? sell it at public afiction." 

- "^Uj)ou this evidence,. ithe defendant asked the court to in- 
struct the jury— ^ 

"1." Th^t the pp-tent tb Kennedy, and the confirjaaation of 
title by the United States location and survey of the said 
lands canqpded to Fricq^ gave^to said. Kennedy and thQse 
claiming^uuder him a good title to the land so j-'dtc: va. 
^ ,; .".2. That the act of 1822, of itself, gave no vested tit|e to 
Rochon or his heirs. .. 

-'"B., That no title could, under said act, vest in said Rochon 
oj* his heirs, until a location of the lot so confirmed to thena- 
w^a made or approved by. th& officers of the land-office, ascer- 
t(jiniugthe location and boundaries of.* the lot. 

" 4. That the survey shown and approved by the surveyor- 
general was not, of itsell^ sufficient to locate the said lot, as 
against the dpfendant's location evidenced by the pat<?nt^ 

"5. That before the si^rvey so ^own could prevail over 
the patent of the defendant, it must be shown to have been 
adopted,- sanetioned, qr approved by the register and receiver 
of the. land-office, and that no titlecould vest in the plaintiffs 
until such sanction was given by the land-officers. .• jga^:t 



388 '* ALABAMA. 



Kennedy's Executor "v. Doe ex dem. Rochon's Heirs. 

" 6. That the documentary title exhibited by the plairitiffis 
could not be sustained, because not in conformity with the 
requirements of the act of 1822, being for a quantity exceed- 
ing the limit of 7,200 square feet. 

" 7. That the claim of Eochon could not, under the act of 
1822, be divided into more than one cqnlirmation, so as to 
give more than 7,200 square feet to the claimants in the shape 
of two or more lots ; and that if they had already obtained 
the double lot, they could not claim more under said act. 

■" 8. That the record of confirmation was not sufficient evi- 
dence of title, the plaintiffs having produced no certificate of 
confirmation and no patent certificate. 

The court refuged these charges, and instructed the jury — 

" That it was true that the title of the defendant, as shown 
by the patent, would, if taken by itself, give a good title to 
the grantees thereof; but that, as against the title shown by' 
the plaintiffs; it would not ? that the confirmation of the plain- 
tiffs' title being in 1822, and prior in point of time to Ken- 
nedy's, it gave the better title ; because, when the confirma- 
tion to Kennedy was made, it, had no longer any title to 
grtint, and because plaintiffs' title was within tiie exception 
of the patent to j^ennedy." . 

"That 'the act of 1822 did vest a title is the heirs of Eo- 
chon to a lot, wherever such a one as described in the appli- 
cation could be found ; and when so found, it attached to ii, 
and the title related back to. the date of the act," 

" That if the lots described in the deed submitted to the 
commissioner can be ascertained by the jury from the evi- 
dence, and they comprehend the" loctcs^in quo, then the plain- 
tiffs would be entitle to recover : that to ascertain the loca- 
tion of this lot, the survey of the United States ofificer was 
competent evidence, but it was not conclusive evidence against 
the defendants, and the latter might impeach or contradict it ; 
and that if this survey offered by plaintiffs was the true loca- 
tion of the lot, then -the title exhibited by plaintiffs to the lot 
was superior to that of defendant, and would entitle the for- 
nler to recover." 

The defendant excepted to the several charges given, an4 
to the refusals to charge as requested ; and he now assigns 
these rulings of the court for error. 



' JANTTARY TERM, 1855. '^ 

Kennedy's Executor v. Doe ex denii Rochon's Heirs. 

Geo. N. Stewart and Wm. G. Jones, for the appellant : 
Tlie whole question to be examined turns on the validity of 
Rochon's title, and not on tliat of Kennedy. Rochon's heirs, 
it is conceded, show no title, either under Spain or Great 
Britain : their etaitfi is on the bounty of the United States 
merely. They claimed that their ancestor had a possession 
under Great Britain, but they claimed no possession or title 
under Spain. The acts of Congress, under which these claims 
were "presented befor6 Commissioner Crawford, allowed every 
description of claim to be laid before him. He passed on 
them, and divided them into classes, in which shape he f6- 
ported on them ; and the Rochon claim falls within the class 
numbered 11, the list of which is headed "Register of claims 
to lands in the district east of Pearl river in Louisiana, founded 
on private conveyances which have passed through the office 
of the commandant, but founded, as the claimant supposes, 
on grants lost by time or accident." — American State Pa- 
pers,- vol. 3, p. 32. The act of May 8, 1822, acted upon all 
these diflferent classes of cases ; and a title by grant is now 
claimed by Rochon's heirs by the force and effect of the third 
section of that act, which disposes of that class of cases, and, 
as they say, vests a title in them by the law itself, without 
any further act being required to complete it. We deny that 
the act of 1822 does bonfirm ihis title to them at all,- and in- 
sist that, consequently, they have no title. 

To determine whether the Rochon claim was confirmed or 
not, we must carefully examine the act of 1822, and the re- 
port of Commissioner Crawford on that claim; and for fur- 
ther certainty we may look to the claim itself as presented, 
arfd the proof relied on- to support it- before the commissioner. 
It was on this claim and proof that the commigsioner acted, 
and it was on his report that Congress acted. 

The act of 1822 (§ 3) does confirm many claims where no 
title was produced ; but they were confirmed in consideration 
of the possession which the parties had under Spain; and no 
claim was confirmed unless t^e commissioner had reported 
that, " m Aw opinion," it was entitled to confirmation. The 
lEtnguage of the section is, " that all claims," &c., " which hq,ve 
passed through the office of the 'Commandant, but founded, as 
the claimants allege, on grants lost by tijne or -accident, and 



. » r- . . . ~ - 

.•■-•/ 

390 rS^r ALABAMA, ''i" 

^ _■ ■ '' 

Kennedy's Executoi- v. Doe ex dem. Rochon's lleirs. 

which ought, in tlj£ opinion of the commissimier, to he confirmed, 
shall bie confirmed," &c. The act, then, is conclusive gn this 
point ; and the commissioner's deoision, that the claim is en- 
titled to confirmation, is indispensable. 

i^i* Lefcus now examine what the claim of Rochon's heirs was. 
Their petition to the commissioner is dated April 25. 1814 ; 
and by it they claim three lots of ground, by, virtue of a grant 
lost by time or accident, made in favor of B* F/Pieviie, and 
transferred to A. Rochon by bill (Jfsftle dated February 2, 
1775. Next follows a copy of an Engli.-h deed, from divers 
persons, to Augiistin Rochon, of theabOte«5ate, in the 15th 
year of the reign of Geo. Ill,, for one double lot and one 
single lot. Next is a translated copy of'a will, originally in 

•French, mhde by Louisfe Fievre, dated July 6, 1805, and re- 
citing that she was the widow of Rochon, and that she owned 
§ome lots — two w^ith a house on. Royal street, and five others 
in the environs of the fort>— which she -bought oi different 
persons in the time of the Frfenclrand English Government ; 
and declaring that her children have already, received the 

'*property of their father. We 'next find the depositions of 
two witnesses, Bart. Lorent and Wm. Mitchell, ni^de the 21st 

—April, 1814. Lorent deposes, that Mad. Rophon, sit the time 

■^the Spaniards came to take the fort of Mobile, lived in her 
house "built on her lots nigh tlu3 fort; that tbe^Englisli burned 
her house, with all her improvements ; that he^does not per- 
fectly recollect the number of lots she possessed, but thirds 
there ought to be nearly, five frorji^^'the extent of them, as sbe 
had upon them a targe yard, a lafge gafden with fruit trees, 
and a park ; that the lots were bounded on the Jiofth by the 
lots of the deceased John Baptists Le Fleaux and the fet^eet, 
to the south by the common, and to the east and west by the 
streets, the lots traversing the square from west to east.- 
Mitchell deposes, tha,t when the Spanish came to take the fort 
of Mobile, in 1780, Mad. Rochon lived in her house built on 
the lots she had nigh the fort and facing the common.; that 
daring the siege of the fort tfie English put fire to. her house, 
which was- burnt with all the other improvements ; that he 
^es not perfectly recollect the quantity she possessed, 'but 

r'lllat she had on said lot a large court, a large garden with 
fruit trees, and a park ; that these lots were bounded on the 



JANUARY TERM, 1855. ' ..r-iil 

, - 4th ;gy.- 

Kennedy's Executor v. Dofl ex dem. Rochon's HeirSl j *, 



north by, the lot of the deceased John Baptiste LeP-leauxftiiid 
the street, to the south by the common, and to the east and 
west by the streets, her lots traversing the square from east 
to west; This was all the evidence laid Wefore the commis- . 
sioner, and that on which he founded his report. 

The commissioner made his report on the 20th October, 
1814, and it was laid befqre Congress in 1816 by the commiS- 
'sioncr of the General Land-Office, R. J. Meigs, — Araer, State 
Papers renting to the Public Lands, vol. 3, pp. 31^ 32. In 
some of the registers the commissioner recommends the entire 
list of claims as in his opinion entitled to confirmation, and in 
others he reports the entire list as not entitled to be con- 
firmed ; but the list numbered 11, which comprehends this 
claim, does not in the heading profess to set forth his opin- 
ion. This list contains eighty-eight claims, and the commis- 

"^ sioner.setsr out, in tabular form, the special facts ascertained 
by him in each ease, which he deems material. The Rochon 
claim we find split up into three, each for one lot, numbered 
74, 75 and 76, and as to them the facts found are as follows : 

■ .^ By wliom claim.ed — Heirs of Rochon ; Quantity claimed — 
■Unknown; WherQ situated — Mobile; Inhabitation and cul- 
.tivation— Inhabited and cultivated about 36 years ago." His 

^«^ort, at the bottom of the list, is, " That the clainis to^stich 
lots as were inhabited and cultivated under the Spanish Gov- 
ernment, or such as were built upon by permission of the 
Spanish*au|horities, ought to be confirmed." We must; there- 
fore, to ascertain the effect of this report on each claim, apply 
these remarks to each case separately on the list ; and by so 
doing, we will find the effect to be, that he reports seventy- ' 
one cases as ifi his opinion entitled to confirmation, and sev- 
enteen cases not so entitled, and among the latter is the case 
of Rochon. In every case, he reports^ as was mude bis duty 
by the act of 1812 under which he was appointed, (Clarke's 
Land Laws, p. 608, § 5,) on the inhabitation and cultivation 
by the parties, and when ; and in Rochon's case, he reports, 
not a possession under Spain, but, in effect, a possession "about 
thirty-six years ago.'^ It must be here noticed, that there is 
an error, pr misprint, in tho, published copy of the commis- 
sioner's report, which makes it say " Inhabited and cultivated 
...4liliQui thirty-six yefir^," iaBtG^6ji["Jj^Xy^^.3^msq£d'^,ttui 



« r n I - I - f I -;j-i ■- - i '- ., , -i '- ■ - ■ - - < ■ -* 

Kennedy's Executor v. Doe ex dem. Rochon^s Heirs. 

certified copy of the record from the Land-Office shows the 

■ ' true report, and-the evidence laid before the commissioner, 

• which shows when the possession was, confirms it. The report 
being made in 1814, the period of the possession, " thirty-six 
years ago" carries us back to the }^ear 1*^78, when, as history 
informs us, Mobile was a British possession. It was taken 
from England, by assault by the. Spanish troops, in 1781, 
and became a province- of Spain- in 1783, by the treaty of 

• peace between England and Spain. — See Pickett's History of 
Alabama. It is clear, therefore, that .when the report shows 
a possession in 1778, none being pr^ended since that time, it 

• . cannot be taken as ia the opinion of the commissioner entitled 
-^confirmation, since he determines that only those who pos- 
sessed under Spain, or those whcbnilt on land by Spanish 

.a,Uthority, are so entitled. 

•v., ..It cannot be pretended that the commissioner's repout nreanl^ 
anything else than we have shown. " The report is the correct 

• . result of the proof laid befote him ; and there, was no proof 

of any possession under Spain^ and no pretence of aay in the 
petition. Ha\Nf could the commissioner report, or intend to 
report, a possession under Spain, when none was proved, nor 
pretended ? . The title .was confessedly a British one, if any . 

■ . ever existed. The commissioner well knew that Spain claimed. 
- forfeitures of such titles, and had the right to re-grant the 

lands ; and hence his requirement of either a Spanish occu- 
pation or a concession by Spaiiw How c^n .this^clalm be-(Jis-* 
tinguished from No. 87 in the sa'me lis.t, where the report was, 
■ " Inhabited while the British possessed West Florida"? It 
' cannot be pretended that the commissioner reported ir> favor 
of that claim ; yet Rochon's is, in eflfect, precisely a similar 
oa§e : in. neither one of them was 'there a possession und^er 
, ; Spain. We all know that, by the treaty between B'paiii and 
England, British subjects were entttled to a certain time to 
■, ^ii their possessions : and that, if they did not do so, their 
';< possessions were forfeited, and subject to be re-granted to 
-• others by Spain. — Doe ex dem. Faisner's Heir&* "v* Eslava, 11 
.vJLla. 1028, (a case sitailar to this). 

• - -fi^But we are not left to doubt i)n the question whether this is 

■a coriiirmed title or not : it has been' fully and expressly de- 

• 'r^^lf^hy this court ia the case of Hall v. Eoot,.l^ Ala. ^92, 

,•: 'f ... 



JANUARY TERM, 1855. 398 

■■ " I l» * ' l •! ■ ' < ■ ■ i . ...» II . . I I , - 

Keunedy's Executor v. Doe ex dem. Rochoa's Heirs. 

la that case, it was the claim of Daniel Johnson, (original 
claimant, John Lynder,) for 6,000 arpens ; and the report of 
the commissioner was, " Formerly inhabited and cultivated 
by Lynder ; the date of the bilLof sale to Johnson altered." 
It did appear by that report that the land had been inhabited 
and cultivated, but the ccrmmissioner did not say when, nor 
that it- was under Spain ; and in that case, as in this, he said, 
that those claims to lands which were cultivated and inhab- 
ited under the Spanish Government were, in his opinion, en- 
titled t6 confirmation. But this court said,. "We cannot, 
without violence to the report, consider this one of the claims 
recommenjied for confirmation." — p. 395. • That case was not 
so clear a one as ours, and a decision against us here could 
not be made without overruling that case ; and yet that pass- 
age in the opinion is correct, arfd no one can doubt it. We 
•insist, therefore, that this is a conclusive objection to the 
plaintiffs' action, and must defeat it, as the plaintiffs certainly 
have no confirmed title, and consequently no title whatever. 

A. R. MANNMifG, P. '^ALKER, D. CHANDLER, and R^ H. 

Smith, contra: 

The point particularly insisted on for appellant is this : 
That the commissi<oner Crawford by his report recommended 
for confirmation the claims to such lots only " as were inhab- 
ited or cultivated under the Spanish Government, or such 
as were built i|pon Ijy permission of- the Spanish authcarities ; 
that the claim of Rochon's heirs did .not come within this 
category; and that it was not therefore confirmed by section 
3 of the act of .1822, confirAing those claims "which ought in 
the opinion of the commissioner to be confirmed." • . 
■ Supposing,- for the present, that there was any reasoa for 
extending the bounty of the Government, or its justice, to 
/claimants irtider one of the- sovereigns which preceded it in 
its jurisdiction over the country about Mobile, rather than to 
the claimants under the others, and that it intended to^ido so ; 
what was the opinion o> report of tlie commissioner Crawford, 
in reference to the claims of the appellees, on which Congress 
acted? 

We are seekii^g to get at the meaning of an act of Congress. 
For a right interpretation of it w« must examine tl^e reports 



394 - ALABAMA, 'fel \' 

Kennedy's Executor v. Doe ex detn. Roclion's Heirs. 



t<> which it refers in the body of it, and upon whi«h St is 
predicated. It was enacted to quiet titles in favor of those 
who were supjiosed by Congress to be justly entitled to such 
relief, against it. The claimants and the friends of each, in . 
and out of Congress, obsefve the acts of that body, and tlie 
reports referred to therein ; and if, according to these solemn 

Jind open documents, th^ior ckiims'respectively are recognized 
and confif'med, of course, they rest content. The Government 
tl'iereby'Says to them, in effect : Trouble yourselves no more ; 
though there be otherovidenoe which you may procure, before 
witnesses die, or archives shall be removed or destroyed, make 
no efforts to secure and save such ^evklence ; here is the con- 
firmation of your title. To suffer such confirmation to be de- 
feated, twenty or fifty years afterwards, by an allegation that 
a public otficer had made a faistake in the report upon which 
Congress fCcted, would be but to set a trap to divest innocent 

^nd jueritorious citizens of what- might be their just rights. 

■ - What, then, was the repott on which Congress acted in 
reference to this claim, and which becatoe a part of the statute 

^by express reference in in*' S^ppellanf s cooinsel say«, it was 
one in which the commissioner, in October, 1814-, reported 
that the lot claimed was " inhabited und cultivated about 

.•tfeirty-eix years ugo ",-at whieh time the Spanish King had no 
siorainion in the country. We say, for th^ appellees, this is 

' not. so. TVue, the register of the land-office at St. Stephens, 
in a paper from thatoffiqe, certifies to a transcript of a writing 
purporting to be Crawford's report, in which tho word "ago" 
appeai:s. But this is not the report itself, upon which Con- 
gress acted, to which ib referred, and to-which the claimants 
and ethers must have looked for the ascertainment of the ex- 
pressed "opinion" of the commissioner. That report the 
•commissioner was at first, required. (by the act of April.25th, 
1812, § 7, 2 U. S. Stat, at Large 713) to make to the Secretary 
of the Treasury ; but afterwards, and before Crawford re- 

. ported, he was required to make it to the Commissioner of 
the General Land-Office. This Crawford did ; and that .officer 
(R. J. Meigs) in 1816, communicated the report to Congress. 
It is found as public document " No. 234, 14th Congress, 1st 
session, (from pages 6 to 36,) in the 3d volume of "American 
. State Papers" relating to public lands, — declared in the title- 



JANUARY TERM, 1855. 395 

— j_ . ^ • .-v> ■ — • — 



Kennedy's Executor v. Doe ex dem.'*Rochon'8 Heirs, 



page to be HDociunents Legislative and Executive of the Con- 
gress of 4;he United States", " Selected-,an4 edited under the 
inthority- of Congress, by Walter Lowrie, Secretary of the 
Senate, and Walter S. Franklin, 'Clerk of the House ot^ Rep- 
resentatives." On page 36 is the report of the claim of 
Rochon's heirs. Mr. Stewart, in h\s printed argument, (p. 5,) 
•refers to the s'ame, though he sinks the most important part 
of it in" a note at the bottom of his page. 

By "this report, then, upon Which Congress acted, (and which 
by adoption or express reference became a part of its statute,) 
the commissioner Crawford reported that the lot claimed had 
: been "inhabited and cultivated about thirty^six years." And 
as, during the greater ^part of the thirty-six years before 1^14, '; 
Mobile was un^Ser Spanish rule, this claim came plainly and 
expressly within tlie recommendation of the commissioner. 
Whether ther6»was an error or not in the report, it is needless 
to inquire. -Jf there were,- and ihe plaintiffs' own evidence 
show it, still it does not defeat the confirmation. The affi- 
davits, writings, and other evidence left by the commissioner 
■in the local' land-offices^ behind, ai'e not the things to which 
. Congress referred aS expreseilig '' the opinion " of the com- 
• missioner, but his report communicated to it ; and their effect 
upon the title does notdepend upon Reside which intrQduces 
thera. • These -papers, though, themselves show that the 
premises were occupied when the Spaniards: were in possess- 
ion of .the eitypf Mobile, and actually taking Fort Charlotte; 
and that the Spaniards did not disturb this possession, but 
the English troops. ' . < » 

Little. room is there for doubt that if the title of the heirs 
of Rochon were not considered as settled by the act of 1822, 
Congress could have been constrained, by the representations 
that would h^ve been made to it, to confirm it before or in 
the act by which it gratuitously relinquished the title of the 
United States in favor of the holders of the enormous Price 
claim (made to absorb upwards of 900 acres in the city of 
Mobile), which Commissioner Crawford reported in 1"817 as 
a fraudulent one (see 3 Amer. State Papers, supra, p. 11), and 
which has been made to swallow up many others of far more 
merit : for the proof shows that the premises claimed by 
Rochon's heirs had been a long time occupied, improved and 



396 : ALABAMA. V 

Kennedy's Executor v. Doe ex dem. Rochon's Heirs. 

claimed as private property, with a mansion, a payk and an 
orchard upon it,vright under the walls almost of old Fort 
Cliarlotte, the very seat of the power of the monarchs of 
Frd-oce,' England, and Spain, who successively had rule in 
Mobile. So long, indeed, had these lots been private property, 
that in the, act of sale ^thereof from Bellaque, Fievre, and 
oth^rs^ to A-. ^ochon in 1775, (twenty-three y^ears before tho 
initiation of the vast Price claim,") a house on them is spoken 
of as " almost rotten and falling to the ground "; and in 1780, 
the piansion of Madame Rochon (not the garden and orchard, 
which were doubtless still used afterwards) was destroyed by 
the English authorities, the better to enable 4;hem to defend 
thefort against the assault of the Spanish troops, who at that 
time captured it : all the city except the ffert being at the 
time in possession of the Spaniards. 

Doubtless the claimants supposed that this proofi showing 
how long the premises claimed had been recognized and noto- 
riously used as private property, and that the house on it had 
been destroyed under such circumstances, was the strongest 
case they could present to a Gk)vernment which had. succeeded 
the English and Spanish *aufhorities in their rights, and in 
whose action it was a fundamental principle that private 
property could not be taken for public use without due com- 
' pon'sation therefor : and if they had learned from the report 
of the commissioner and the act of Congress, .that their claim 
was^not intended to be confirmed, additional procff could have 
been had of their, right. 

But suppose the report of the commissioner, upon which 
Congress acted, had contained the words " inhabited and cul- 
-tivated G&OM^ thirty- sis years ago"; we may inquire whether 
■iiQ.did not still intend to recommend this claim for confirma- 
tion.- • The officers of the land-office at Jackson, Mississippi — 
who were authorized by the act of 1822 to issue their war- 
rabts for the survey of the Tots to which the titles were 
confirmed — evidently so understood the oommissioner : for, 
in thfe very next year (1823) after the enactment of the law, 
they issu^ed their warrants accordingly. 

Next, the act authorizing the appointment of the com- 
missioner (2'U.S. Stat, at L. 713) requires him to make '^ab- 
stracts from the records of the claims, in which the claims 



JANUARY TERM, 1855. • 5#f«t 

Kennedy's p]xeGutoi" v. Doe ex clem. Rochon's Heirs. 

shall be arranged into classes, according, to their respective 
merits and other circnmstanceg wliereby they may be diversi- 
fied"; and from the fourth section (p. 715) it appears that 
Congress did* nof Consider titles derived* from English or 
French authority any less worthy of fav£)r than Spanish titles. ' 

Again ; the abstract containing this claim is hdaded " Reg'- ' 
ister of claims"^ &c., ".founded on private conveyances, which 
have passed through the office of the commandant ", w'ho was 
a Spanish official : from which we must infer that the com- 
missioner intended to certify all these Cltytas as' having the ' 
sanction of the Spanish authorities, and all therefore entitled ^ 
to confirmation, except such as he expressly reports (as he 
does of several) as never having been inhaiiited or cultivated 
at 5,11, or not until' after the country passed to the United 
States, by the treaty of 1803 with France. 

This conclusion is strengthened' by the fact, that in this 
abstract he does not in any line of it refer to the nationality,*, 
whether. English, French, or Spanish, of the original grants, 
or inquire into it— they being lost ; and' knowing that the 
Spanish authorities had long and immediately preceded the 
United States in the occupation of the country, hcprobably 
never adverted tO the fact, that thirty-sVx years hpi'ore 1814 
would go back to the last years of the English occupation 
and the first of the Spanish. The word " about ", in the report, 
has a similar significance — " about thirty-six years", or " about 
tliirty-six yefera ago." - * 

There is not a particle of evidence justifying the suggestion 
that the Roohons or Pievres were British subjects, who might 
forfeit their rights of 'property under the treaty between 
Great Britain and Spain : and their names, the language they \^ 
use in their wiUs, &c., clearly indicate that, if not Spanish '• 
siibjeots, they belonged to the class of French settlers, derived 
from the country with which Spain was at that period ih close 
alliance against England. 

Note by- Reporter. — The arguments of the respective 
counsel on numerous other points presented by the record, 
which are not noticed in the opinion, are ojnifted for want pf 
space, and because they are deemed unnecessary to a correct 
updersta^ding of the points deeided. • . 



398 ^ . \i: ... ALABAMAv*-' > . 

Kennedy's Exeootor V. ,1)0€ ex dem. Rochoa's Heirs. 

CHILTON, C. J, — As every plaintiff in ejectment must 
recover, if at all, upon the strength of his own title, ouf first 
inquiry will be, whether the heys of Rochon exhibited such 
title in the court below, as would support <heir action. , K 
they failed to do so, and their failure results from an incura- 
ble defect, affirmatively showa by them in the proof which 
th^ submitted, it weje needless for us to go further and 
discuss the other points raised in the argumejit. 

They exhibited in the court below their petition to the 
commissioner, under date the 25kth April, 1&14, by which, t^^y 
claim three lots of ground in virtue of a grant,, lost by time 
or accident, .in favor of B. F. Fievre and transferred to 
A. Bochon by bill of salQ dated 2d February, A^ I). 1775. 
Then a deed from Frances Fievre," Marsha Dubroca, and 
Loujse A. Rochon. to Augustin. Rochon, dated 2d JFebruary, 
1X75, for ^ double lot and, a single lot of ground, atuate in 
the town of Mobile, bounded by streets and the lots of coter- 
minous proprietors as therein shown. ^ Next a will, made by 
Louise Fievre, dated 6th^ July, 1805, reciting that she was the 
widow of A. Rochon, and that she owned certain lot^, — two 
with a house on Royal street, and five others in the eavijjons. 
of .the fort, which sh<? purchased of different persons while 
the French and English govSruQieiits held possession.. In 
this will she also declares, that her children ha:4 already re- 
ceived the. property of their father, agreeably to the wjitings 
whick had been made at different epochs. Theft follow two 
affida-vits, one of Bartholomew Lorent, the other of William 
Mitcl^ell, showing Madam Rochon's possession ^during the 
British times, and the destruction of her house and improve- 
ments pending the siege by the Spanish authorities in 1780. , 

The foregoing was the evidence laid befoj^e the commis- 
sioner Crawford, as jljown by the certified transcript from 
the land-office, introduced by the plaintiffs below. In the 
same transcript is set forth the report of the comulissidner 
upon the claims as above pr^^pounded before him'. In this 
l:eport, it is stated by the commissioner that tjjie lots were 
" inhaljited and cultivated about thu"ty-^ix years ago.'' These^ 
with, two surveys by Wijlis Roberts, 4eputy surveyor, and 
transcripts from the registers of oerfificatcs and locations, 
jQQAsUtute th« do<;iwaeni^^.fiyi^eo(^.ad4uc((di;^ the plaiatil^jt 



JANUARY TERM, 1855. 



399 



Kennedy's PJxecutor v. Doe ex dem. Rochon's Heirs.» 



-V 



1. The first prominent objection urged by the counsel for 
Mr. Hallett against Rochon's title, is, that it was never con- 
firmee^ by the act of Congress of 8th May, 1822, (3 Statutes 
at Large of -the U. States, ppi 699-700). Let..us see whether 
tliis objection can be sustained. 

The act provides, " That all claims to lots in the town 
aforesaid (Mobile), reported as aforesaid, and contained in 
the reports of the commissioner, or of the register and re- 
ceiver acting as commissioners, founded on private, convey- 
ances, which have passed tlirough the office of the commandant, 
or other evidence, but founded, as the claimants allege, oq^-. "' 
grants lost by time and accident, and which ought, in the ' 
opinion of the commissloaer, to be confirmed, shall be con- 
firmed, in the same manner as if the titles were in existence : 
provided, that in all such claims, where the quantity claimed 
is not ascertained, no one claim shall be confirmed for a 
quantity exceeding seven thousand two hundred square feet." 
3 Statutes at Large, 699-700. ' . 

Among tlie reports referred to by t!^is act pf Congress, is. 
one by Commissioner Crawford, embracing a class of claims, 
numbered 11, the list of which is thus headed : — "Register of - 
claims to land in the district east of Pearl river in Louisiana,f"^' 
founded on private conveyances, which,, passed through the 
ofl&ceof the commandant, but founded, as th« claimaiit supposes, 
on grants lost by time or accident." This schedule embraces 
eighty-eight claims, and comprehends the claims of the heirs 
of Rochon. It is i»ade out in the following form : — 




The schedule' is signed by the commissioner^ and is accom- 
panied by the following : — " Remarks— Though the original 
gi-ants, upon which the preceding claims are founded, have 
been lost, yet it is conceived that the claims to such lots as 



400 . /•- V ALABAMA. 



Kennedy's Executor v. Doeexdem. Rochon's Heirs. 

were inhabited and cultivated under'the Spanish government, 
or such as were built upon by permission of the Spanish 
authorities, ought to be confirmed." — (Signed) "William 
Crawford, Commissioner." 

We are referred by the counsel of the appellees to the 3d 
volume of4he American State Papers, page 32, containing the 
report of Commissioner Crawford upon these and other' 
claims, an extract from . which report is set otit in the bill of 
exceptions, being certified from the land-office, and which 
corresponds, as respects" these claims, with the facts set forth 
in the above tabular statement. ' 

In the Araerican State Papers, however, the woYd " ago" is 
omitted, and, if we are to be governed by the printed rejX)Vt, 
as containedrin this volume, if. is very clear, the claim of the 
heirs of RochoA must'be regarded as confirmed ; for it appears 
by it, that the lots were inhabited and cultivated front a 
period anJ;erior to the tonquest of Mobile bythe Spaufsh 
from the British Government down to; the period of the 
muking of his report by the commissioner. The printed 
report, as contained in this volume reads " Inhabited and 
cultivated about thirty-six years." We are,.however, unable 
to perceive upon what principle we can receive evidence in 
"this court tO' contradict the record in the court below, or to • 
show a variance betweoh the transcript of the report intr®- 
difted by Rochon's heirs in the primary court as a part of 
their evidence of title, and the report as contained in ttie 
State Papers. We must intend, that the act of 8th May," 
1822, was passed with reference to the original report made 
by Mr.. Crawford, and not to the. printed copy of it as con- 
tained in. the American State Papefs. Indeed, the act. of 
Congress could not have been based upon the report as 
printed in this volume, for it was not printed until 1834, 
about twelve years after .the act was passed. Although these 
State Papers, having been published by authority of Congress, 
are evidence of liigh grade, yet we apprehend that it cannot 
be successfully maintained that the rights of parties in respect 
of private claims can be affected by the misprints which they 
may contain. In our opinion, the misprint may be shown by 
reference ta the original report on file in the government 
archives. ' It is, however, unnecessary to dwell upon this 



JANUARY TERM, 1855. 



Kenneaj's •Executor v. Doe e^: datfi. Ro^sboB^ wits. 



point, as it was not raised in the court below. 'The plamtifi^, 
as we have said, by the certified copy from the laud-office, ^ 
sht3wed to the court and jury upon the trial that the commis- ' • 
sioner's report was, that the land was " cultivated and inhab- 
ited about thirty-six years ago" — that is, about thirty-six 
years befol-e the; making of his report; and as this corres- 
ponds fully with thej-evidence accompanying his report, we 
doubt not: it is. correct, and, that the word " ago" is omitted 
through mistake in the printed report. " Wfe are inclined to, 
the opinion, that the certified copy by the proper custodian of 
the report, as originally made by tlie commissioner, would 
control, and should be allowed to correct the printed report. 
See Marshall v. The State, 14 Ala. 411 ; also, 2 Salk. 566. '. 
But it is unnecessary now to decide that question. 

Assuming the commissioner's report to be as was shown by 
the plaintiffs themselves in tlie c6urt below, let ns consider its 
effect, in connection with the act of 8th May, 1822, as to , 
whether it amounts to a confirmation of plaintiffs' claim. 
This act Of Coagi'ess is based lipQn the CQmmissianer's report, 
and' operates' only as a confirmation of such claims as, in the 
opinion of the commissioner, expressed in his report, ought to 
be confirmed.^ 

Turning to the report, in which are embraced the claims 
under consideration, we find none recommendegl by the com- 
missions for feonfirmatiDn, "fexcept snch lot? as " were inhabited ■ 
and cultivated wrider the Spanish government, or such as were built 
upon by the permission of the Spanish auf/iOfities." Does this ' 
claim fall within this category ? . *•'* '.' '. ' 

The report containing it was made by the commissioner to- 
the General Land-Office on the 2d January, 1816. The lots " 
were inhabited and cultivated about thirty«-six years before 
that time. Was this a habitation and cultivation under the 
Spanish government? Our first impression was, that it 
should be so considered ; but upon more mature consideration, 
we are satisfied that impression was wrong. It is matter of 
public history that the Spanish took possession of Mobile, hy 
conquest from Great Britain, on th6 14th March, 1780, 
(2 Pickett's History of Alabama, p. 41 ; Martin's History of 
Louisiana, vol. 2, p. 52) ; and if we go back thirty-six years 
from the time the commissioner reported, we shall go beyond 
26 



40^ ALABAMA. 

■ ^' ." • . « ■_ — ■ ■ ■ . 

*... ' • . Kennedy's Executor v. Doe ex dem. Rochon's Heirs. 



tTie time wlieii Mobile was taken from the English. When, 
howQver, we recni- to the proof exhibited to the commissioner 
'J'ift support of the claim, and submitted by him to the govern- 
ment, it is perfectly clear that these" lots were neither built 
upon, inhabited, nor cultitated under the Spanish government. 
The only witnesses examined, Lorent and Mitchell, both 
concur that the English put fire to the house of Madam 
Rochon, during the siege of the fort by the Spanish ; and it, 
"with all her improvements/ was burned; since which tim6, 
there was no proof of inhabitation . or cultivation under the 
Spanish government. When these iipprovements were de- 
stroyed, the English were in possession of the town ; the 
Spanish^ Q,uthority had not been established, or recognized. — ' 
Indeed it may well be questioned, whether the place could be '■ 
said to be under the Spanish government until it was so • 
recognized by the treaty Qf .peace. Mr. Vattel says (p. 386) 
that "Immovable possessions, lands, towns, provinces, &c,, . 
become the property of the enemy who. makes himself master 
of them ;. but it is only % the treaty af peaee, or tlie entii^e 
submission and' extinction of the State to which those towns 
and provinces belonged, that the acquisition is completed, 
and tlie property becomes stable and pei:fect." But .^dating - ' 
the Spanish rule from the capitulation of the fort, until which 
time the English certainly held ^ the actual possession m^ 
government ot it, it is'clear the iBhabit9,ti6n and cultivatSoU 
did not then exist. The imprpvem^nts had b^eeu destroyed,- 
and although their destruction may have been (and prqbably 
was) one of the results of war between England and Spain, 
yet, we apprehend, the United States did not intend,, by the 
aqts j)roviding for confirmation of titLe,' to make compensation 
fi>r . such casualties. 4f, during tlie siege, the inhabitants, 
1^^ ^eing sn,bjpct to tha govornmcut of, ,Grreat Britain, had • 
^stroyed all their imp^ovcmejJts,^and abandoned the place to 
the enemy, or capitulated,. and had never , re-possessed, them- ' , 
selves of thcira-espeGtive lots— rnad^neyer rCibuilt, or cultivated^ . 
in any way afterwarcis — it would be a contradiction in terms , 
to say Uiat they had inhabited and cultivated these lots under* . 
the Spatiish^overQinent ^ .and, wljjil .Would b» true of them, ia. • 
the aggregate. Is equally true" when applied to each -indi- 



. ,; • • JANUARY TSRM, 1855. 403^ . 

Kennedy's Esecu tor v. Doe ex dem. -Jloohon's Heirs. • '. 

a, . . ^- — :: : . . ,. 

not the Spanish government ; and this report, which certifies . 
the facts, and does not give in terms the opinion of the com-^'" • 
raissioner as to whether the claims should be confirmed, fails 
tp show that it falls within the class recommended for con- • 
firmatio;i. Claims of this kind might well, we think, have " 
constituted a distinct class, arid no doubt would have been 
reported upon as such, had the commissioner, under the . 
powers vested in himi deemed them proper for confirmation. 
Doubtless there were a number of similar sujfferers from the 
casualties of the war. But -they were not recommended as 
proper' to be Confirmed, and it is not for the courts to specu- .' 
late upon the justice or propriety of withholding the sanction- . 
of the government of their validity. -We rauSt take the act, 
with the report and the accompanying proof, as we find them ; ? 
and if from the report, as explained and aided by- the proof, 
w« ar6 unablQ to see that in. the opinion of the commissioner 
they ought to beMJon^rmed, it is our duty to hold that the act 
confers no title, or gives no validity to such claims. — Doe ex '^-^ 
dem. Hall v. I^oot, 19 Ala. 378-395. ^i 

. The appellees, however, insist that their confirmation is-, 
established by analogy to the case of Doe v. Eslava (9 How. > 
Rep. 421)j^wherfe the report was " Cultivartiop iand inhabita-" '• ; • 
tion : — A house built, in which R. Farmer lived for twenty 
years, and until the Spaniards took possession of the country." 
The proof in- that case,, also, -showed that«the house was 
burned when the Spaniards took possession of the country, .'. 
upon the treaty after th6 close of the American revolution. 

We havA looked into that case, and -it appears that no .' ' 
question as to the fact of confirmation was raised, either in ' ' 
the Supreme Court of this State, or of the United States. 
This point appears to liave passed unnoticed ; and" while this, , 
of itself, is persuasive tg show that the report in the case 
before us may recommend the cl^,im for confirmation, yet we 
do not esteem it in the light of a judicial determination of the 
question ; for if it could be viewed in that light, it would be 
our duty, as well as our pleasure, to yield to the decision. 
' * In conclusion, we feel quite confident that Madam Rochon's 
residence upon the lot in question while the British held pos- 
session, and the burning of her house and improvements by 
the British pending the siege by the Spanish army, in the 



404 . .4i ,y 4-LABAMA. 



Kennedy's Executw v. Doe ex dem. Roclion's Heii'S. 

afe$eiice of any proof that she afterwards dwelt upon or culti- 
vated the lots, do not show she inhabited and cultivated 
the lot under the Spanish government, as recommended by 
the report and required by the act of 8th May, 1822, in ordej- • 
to a confirmation. To meet the requisitions of the act, she • 
must have lived upon the lot,-^inhabited it and ^cultivated it 
after Spain took possession of the place. Constructive pos- " 
session, or the bare assertion. of a. claim, without an actual' 
possession, is not sufficient.y Slie must have dwelt upon, or 
inhabited thQ lot,— must have had such possession under the 
Spanish government as that the Spanish laws* would have 
operated upon it as a present actual possession. If we depart 
ffom the plain, common-sense meaning of the terms used by 
the commissioner, all is uncertainty. We will be at sea 
without chart or compass. If an inhabitation one day, or twO 
days, before the Spanish authority came in, may suflBce, why 
may not one year, or two years? Where shall wb stop ? and 
by what rule shall we be governed? Tbe only safe rule is, 
to require inhabitation and cultivation after the place was 
subject to the dominion of Spain and governed by Spani^ 
laws. * • 

As the claim, of the plaintiffs below was shown not to fall 
within tMs class of -cases, we feel constrained to hold, that it 
was not 'confirmed by the "act, and consequently, that they 
showed no title*to the lot sued for. The view we have felt it' 
our duty to take upon the question of confirmation is opposed 
to several of the charges given by the primary court ; and as 
it will- probably be conclusive of the case, so far as the State 
courts are concerned, wfe deem it unnecessary to notice the 
other points raised upon the argument. 
i- Judgment reversed, and cause remanded. ^ . 



«. 






JANUARY TERM, 1865. 406 



Cocki'ell and AVife v. Gurley. 



-• • sA 



COCKRELL AND WIFE vs. GURLEY. 
• ,♦.,,'•' 

. 1. The rtile as to form in pleadings is not as stringent Jtt'^uity as atYaw, !\^f 

^the substance of the rales is Mie same ia each gouv't ; aad it is a principled 

.*,j(*tiBiversaL application in pleading, founded 'on reason and good sense, thctt 

•-jihe plaintilf's title should '^e. stated with sufficient certainty and clearnes^^ 

• ^enable the' court J;6 see plainly that he.has such a right as warrants its iilter-^ 

ference, and the defbndant to be distinctly informed of the na'ture bfjhe casis 

• which he is callqd upon to defend. - . . « 
2/ iVhere a bill in equity was liled to protect complainant's reniaiDfler in certain 
•. slaves, alleging that her father died in !^eutucky ia 1825, leaving a widow 

^•'ftnd complainant his only child ; that letters of administration were granted 

on his 9state, " and some tipje afterward's dowet was allotted and assigned 

to the said-J3. (the widow) in her husband's estate, and, among the negroes 

so allotted Avas a negro woman'' (who was particularly described in the bill, 

and was alleged to bo the mother of the other slaves in whom the remainder 

wa^ claimed^ ; and " that by the .statute" laws of Kqntucky, at the time of the 

. decejjent's death, and the allotment of dower to the widow as' aforesaid, she 

\'\was dnly entitled to a life interest in said slave, and the estate in remainder 

~ 1'ested in complainant ": It was held, that the bill was fatally defective, in 

^ not setting out the proceedings by which the widow's dower was assigned, 

and the stg-tute which gave the wido\v^)nly aJife estate in the slaves allotted, 

with remainder tq the complainant. 

ApPEAi;froiii the Chancery Court of Franklin, 
Heard before the Hon. A J. Walker. 

Xms bill was filed by the appellants, John B. Cockrell and 
Jklary Ann bis wife, against Davis Gurley, to protect said 
jyjauty Ann's alleged remainder in certain slaves which were 
in the defendant's - possession. . It alleged, that Henry B. 
Haley, who was the father of complainant Mary Ann, died 
in 'Kentucky, 'irl 1825, ^'leaving his widow, Elizabeth Haley, 
and their said daughter Mary Ann, the sole heirs of his estate; 
that the widow afterwards married one William Dickey, who 
is still living and residing in Kentucky ; that letters of ad- 
ministration on the estate of said Henry B. Haley were 
granted in 1825, by the County o.r Circuit Court of the county 
in which he died, to one Maximilian Haley; "that some- time 
thereafter tlie dower was assigned and allotted to the said 
Elizabeth in her said husband's estate, and among the negroes 
10. allotted was a negro woman by ttie name of Chaney, then 



'4^6 ALABAMA. 



Cockrell and Wife' v. Gurley. 



about years of age, and of complexion "; that after 

the marriage of said Elizabeth with said Dickey, the latter 
sold the said slave Chaney, and the children whiph she then 
had, to one Isaac Parris, who afterwards sold them to the 
defendant; "that by the statute laws of Kentucky, at the 
time of the death of the said Henry, B. Haley,* and the allot- 
ment of dower to his widow as aforesaid, she'^was only entitled 
to a life-estate interest in said negro Cllaney and hen increase, 
■and the. estate in remaindei- vesCed-in the saici'*Mary An&J'tKe 
only child of said Henry B. and Elizabeth." 

The defendant demurred to the bill for want of equity, and 
the chancellor sustained the demufrer, on the ground that 
the bill did not stp,te the .complainants' title with sufficietit 
accuracy and clearness ; and his decree is now assigiied fpr 
error. ';" 

L. B. Thornton and Jno. A. IifobB,''for*'the a^^eH^nta:' 
The complainants' interest in the silave^,o]; t^le ifi remain- 
der, is alleged with' all the 'certainty* that is required' t)y the 
most stringent rules of pleading in equity. .. To entitle them 
to the relief sought by th'e^'bill, all that was require'd of them 
was, to .show, or allege the characfer of their title or interest 
in the slaves, and that their interest was in such jeopardy as. 
authorized them to ask the protection of chancery.- The alle- 
gation of complainants' title is sufiiciently (jlear to show what 
interest they claimed in the slaves, and that they relied -on 
the statute law of Kentucky to, sustain that title.. Much les§ 
stringency, in pleadings in equity is requtred- than -at ItlFw.' 
and all that is required in a declaration is, that the plain-tiff 
shall state the nature of his title with such.certainty that ,the 
defendant may know.what lie relies upon, or what he himself 
has to defend against. The bill in this case clearly notifies 
the defendant, that the complainant Mary Ann claims an estate 
in remainder in all the slaves named in the bill, .an<3 tliat she 
will rely, as evidence of her title, upon the statute laws ; of 
Kentucky, under which, as she alleges, her mother .is only 
entitled to a life-estate interest, and complainant to the estate 
in remainder. That the allegation is sufficient, under the most 
stringent rules of pleading adopted by this court, we refer to 
t^e foUQwiog authorities : — Gibson v. Carson, 3 Ala. 421; 



JANUARY TERM, 1855. y^-^Wf 

__j M ,/. , > .. ^ . . 

9oc^^^'cll and Wife v. Gurley. 



MfcKinley- v. Irvine, 13 ib. 6^3, and authbi*! ties referred to on 
pp. 694- YOO; M. &"C. P. Railroad Co. ^. Talraan, 15 ib. 485; 
Calhoun v. CousinB, 3 ib. 50L -.' .*^ ' 

The statute of Kentucky was a fact to be proved,' HlW ^ 
deed or any other instrument of titlo. It is not required that 
the statutes should have been alleged iyi kcec verba ; indeed, it 
would have been improper to encumber the record with them : 
it was only Uecessary to allege that the complainants claimed 
by virtue of the statutes, and to introduce them, properly au- 
thenticated, as eviiiejice., of tjieit (51aim« ^ 

• ,; Wit. Cooper, cdhtm., <c?ted th'ef follo-<^ing authorities .v— 
■ 'Wright y» Dame, 22 Pick. 55; Pardee v. De Cala, 7 Paige's 
Gli. -132; Wood XvC^eti^t. ^i^>..-13T; 2 Bland's R. 686; Har- 
.ding V. Handy; 11 Wheat. 103; Jackson v. Ashton, 11 Peters 
,2149;. Andrew^ & Bro, v. McCoy, 8 Ala. 92(?; Thomas v, War- 
ren, 15 ¥ferHj. IIO^. gnrith v, Ballantyne, 10-Paige Ch. 103 ; 
. 'Wlhite v.- Beiwis, ^, A. K. Marsh. 1123; ib. 315; 2 B. Mon. 1. 

.. ^' •■'GOLbTnWAiTE, J.— The objeS of the suit is, to pro-, 
te'ot the title of the co,Hipkinants to the remainder in certain 
aloyes,; and the'bill avers^ that one Henry B. Haley died in 
the Stfite of. Kentucky, in, 1825, leaving his widow Elizabeth, 
and the complainant Mary Ann Cockrell, then Mary Ann 
Efaley, his only child ; that Icttqrs of administration were 
taken out .Tjy o»e IVIaximilian |ialey, " and . I^liat some time 
thereafter, dower waB assigned and allotted to the said Eliza- 
beth in her said husband's estate, and among the negroes so 
allotted was' a. negro W:Oman by the name of Chaney", who is 
one of the slaves in relation to which the interference of the 
court is prayed, and the otlicrs are her children, alleged to 
.have t)een born since the assignment.' Thp bill also avers, 
" tliat by tRe statute laws of Kentucky, at the time of the 
death of the said Henry B. Haley, and the allotment of dower 

'; to his widow as aforesaid, slic was only entitled to a life 
interest in the said negro Chaney and her increase, and the 
estate in remaiifndcr^ vested in the said Mary Ann." These 
are the oijly allegations of title which are to be found in either 
the original or the amended bills ; and the only question is, 
whether, under the rules of pleadipg, the title of the coWci 
plainants is stated with sufficient clearness and accuracy. 



hL 



Cqcks^ aiia»Wife v. Guriey. 



: ,. ,*rj| will; ^e seen fiiOHf^ .the extracts we li^ve made from tiie 

" hii}, tliat^tlie complainautvs' titlerests entirely up©» tbc assi'gn- '^ 
mcnt of dower made to the widow of .'Henry B. Haley, and 
l^he,„statutQ law of Koutucky, wdiich (it is averred) invested 
ilie widow witli the life estate, and .the daughter with tlie re- 
niainder, in the slaves assigned. These is no allega.tion that 
the dovvi^r ■ftjaa allotted in conformity with the laws of'Ken- 
|;qckj^ or th^t.the proceedings werp had by the authority, or 
under the direction of any cour^. The rule as' to forin in 
pleading is »ot so stringent in equity as at law, but the sub- 
'tfflfnce of the rules is the same in each court; and it is a 
principle of,*unive^al -.applicatiofn in .pleading, foilnded on 
reason and good sense, that the title of the plaintiff should be 
stated with sufficient certainty and clearness to enable the 
court to*. 9ee ••clearly that he h^s siwh a right ^s warrajits its - 
interference, and the defendant to be distinctly informed of 
the nature of the case he is called upon to defend. We know 
that, -by the common laWj the widow.xas not entitle'd to dow-er 
in a chattel, and that the title to slaves vested in the legal* 
representative of the intestate. The common law must be 
presumed to prevail in Kentucky f jmd an .assignment of 

^ dower in a slave would confer no titlej'unless by the operation 
of the statute law of that State, and proceedings had in con- 
formity with that law. Conceding that the bill contains an 
averment, in substance, that by the statutes of Kentucky the 
widow is entitled to dower in slaves, we should still regard 
the bill as defective in not setting out the proceedings by 

• which the dower was assigned, as well that the defendant 
might take advantage of any want of authority in those acting, 

. * as that the court might see that they were authorized by the 
law of the jurisdiction in which the proceedings were had. 
We would not be understood as deciding, that where dower' 
was assigned by the decree or judgment of a court of record 
of a sister State, it would be necessary to set out the lawAiijd' 
the facts which conferred jurisdiction ; on the contrary, we 
incline to the opinion that the judgment of a coui't of record 
of x)ne State is prima fade evidence of juinsdiction in every 
other State. But however this may be, we entertain no dbubt 
that in suing upon such a judgment, it would be necessary to 
allege in what court it was rendered ; and neither at law nor 



JANUARY TERM, 1855. 409 

Cockrell an<l Wife» v. Gurley. 



in equity* would the mere allegation that a-judgment had been, 
rendered be sulficient. If the proceeding was not sanctioned 
by the judgment of a court, it is entitled to no faith or credit, 
except such a^ it can derive from the law. of the jurisdiction 
in whidi it was had ; and if in opposition to the course of the 
common law, it must be set out, as well as the procieedtogs ; 
and if suclr allegations are wantiti^, the court caniiot intend 
that -the dower was assigned in the mode provided by laws 
which it cannot judicially recognize, . and of which it is not 
advised by the pleadings. ■ , . 

But independently of the ground we have noticed, we are 
of the opinion, that the law of Kentucky which (it 4s averred) 
gave to the widow a life estate, in the slaves, and the remain^ 
der to the daughter, is not well pleaded. 'Mr. Chitty, in his 
work on Pleadings, (vol. 1, p. 216,) lays down the rule, that 
foreign laws must, in general, be stated in the pleadings, for 
the reason, that courts cannot, ex officio, take. notice of them ; 
and in Holmes v. Btoughtoo, 10 Wend, 74, where a plea set 
out a former recovery for the same cause of action in aiigther 
State, and a satisfaction of the judgment by appraisement of 
lands upon execution i^ued. upon such judgment, it was held, 
that such- satisfaction being a course" of proceedings unknown 
to the common law, the plea should have set out the statute, 
and that the general averment that the proceedings were ac- 
cording to the laws of the State where they were had, and 
fully authorized by them, was not sufficient. Th^e same prin- 
ciple has also been recognized by the Supreme Court of Massa- 
chusetts (Hempstead v. Reid, 1 Mass. 104) ; and we think it 
rests upon sound reason. As was^said. by the chancellor in 
his decree, "It is the province .of pleading to state facts, and 
not conclusions." In the present case, the averment is, that 
by the statute- law ojT Kentucky, and the allotment of dower, 
the widow became -entitled to a life estate,, and the daughter 
to the remainder in the slaves ; and this is simply stating 
what the pleader supposes to be the effect of the laW^s of Ken- 
tucky, ajid is clearly insufficient. 

Decree affirmed, at the cost of appellants. 



' * Stewart v. Bradford. . , 

: . — — ' . . •' -' t ■ ' > '- 

■'■•♦■ ♦•-' ■ V 

V 



. . . STEWART vs. BRADFORD. 

» ■ 

1. The exclusion of part of an answeu to an interrogatory, which was only 
admissible (if at all) upon the idea that, when fairly construed, it aniounted 
merely to an expression of the witnass' opinion that a slave was worthless, is 

' ' ' not a reversible error, when another part of t^ same answer, which Was retld 
in evidence^fiy the appellant, contain,ed a clear staiement of the witnes^ opin- 
. ion on that point. ^ " . , 

2. Held, on the authority of Prater v. Mifler,' 25 'A\a. 320, tba't a verbal 
promise to pay, or fo partwlth anything* valuable, in settlement of a contro- 

' ; '• \j versy not Jxisting in the fi>rin of a pending suit, cfuinot be .enforced in a 

^^^^ifirn: '^ coart of law, without some proof that^here was a reasonable ground for 

■ J^^'. such controversy; ani that, therefore, in a suit on a note given fot the price 

,* ■ Jt^ ■ of a slave, it was not error to refuse to instruct the jury-,- at the defendant's 

* • request, "that if they believed there was a «outfOversy between plaintiff 

and defendant te to-Avhether plaintiff had defrauded defendant in the sale W 

the negro, and thi\t plaintiff, in settlement of the controversy, agreed to 

, knock off one hundred dollars oit.th'e iIo(iB,xthen,<ffe"fendant would .beiyi titled 

to a deduction f6r that sum.'? ^ . • 

3. i7^«// alsou' on the authority 'of ^gusb v. fradford, 15 Ala. 917, that whpre 
V the purchaser of a .slave accents abill of salQ without warranty, which shows 

on its'face that he took theslav.9<at his oVn risk, he cannot defend a suit on 
the note given for the purchase money,, on the ground of " misrepreseata- 
tion without fraud." .. '♦ . . . ' ' 

Appeal from tlie Circuit Court of -"St. Cl^ir. ■ 

Tried before the' Hon. EDMi?Nii W. Pettxir. 
"^ " " ■ . ' . ' 

. , 'White '& Parsons, fov the «appellani.' 

Morgan & MA'RTiN/con^ra. 

• RIOE, J.~This suit is fourided on a note executed % the 
appelant to the appellee, for a part of the price of a female 
slave sold bj the lattoi* to the former. The contract of s^le 
is evidenced by a bill of sale, which does not contain any wa'r- 
I'aMty, but shows on its face that the appellant tookfthe ^a,ve 
■ " at his own risk." ' * . >* 

On the trial, after the note had been read in evidentje,"" <iie 
appellant offered in evidence the deposition of James M. Ed- 
wards, who, in his answer to the second interrogatory, makes 
the following statcftients : '♦A*^ few days after Mr. Stewart 
purehased her (the aforementioned slave), I was at his house, 



> ■ 




JAN UARY TERM, 1855. 411 

Stewart t. Bradford. » 

and examined her at his request, and found her to be so un- 
sound that I would not have had her as a gift," ***** 
"I do not consider the negro worth, any thing. I consider 
her an expense instead of a profit." 

The appdlee objected only to ^o much of said answer as 
reads as follows^: "And found- her to be so unsound that I 
would not have had her as a gift.'^ The court below sus- 
tained this objection, and the appellant excepted. The other 
parts of said deposition were read in evidence. 

If thq words embraced by the aforesaid objection were ad- 
missible as evidence, they were only admissible upon the idea,, 
that when fairly construed, they amounted merely to an er 
pression of the opinion of the witness that the slave was valu 
less. ' Whether such is a fair construction of those wor«Js, H]' ' 
■ do not say. But conceding that such construction wdvUl 
correct, and that there was error in excluding those wbi 
. yet it was error without injury, because the same witness, in 
the same answer, gives a clear statement 'of " his opinion, that 
the slave was not " worth anything," but on the contrai'y was 
" an expense instead of a profit ;" and thi^ last statement was ';; 
rea^ in evidence by the appellant.- This ruling of the co«||.^»^ .,' 
furnishes no ground for reversal. ' " ' •. ' 

The appellant excepted to the refusal to give two charges ^/^-^ 
asked by him, as follows : .^-f ;•' 

" 1st. That if the jury. believe there was a controversy be- ; ''. 
tw^en plaintiff and defendant as to whether plaintiff had de- 
frauded defendant 'in the sale of the negro, and that plaintiff, 
in settlement of the controversy, agreed to knock £)ff one 
hundred dollars on the note sued on, then defendant would be 
entitled to a de^Qction for 4liat sum. * /. 

"2d. That misrepresentation, without fraud, may be suffi- •:' 
cient to authorize such a defence as is attempted to be set up " • 
here." 

In Prater v. Miller, 25 Ala. 32.0, it was decided, that when 
a plaintiff founds his right of recovery upon a verbal agree- 
ment or promise of the defendant, he is bound to prov^ a con- 
sideration, in the ghape of something eithel- beneficial to the * 
defendant, or detrimental to himsellj that the mere existence 
of a '"controversy," not in the form of o. pending suit, is not, 
pet se, asufficient consideration to uphold a verbal promise made 



412 ALABAMA. 



Stewart v. Bradford. 






in settlement of such controversy ; and tliat tbere could not 
be a recovery on such, promise, " without same proof showing 
ft reasonable ground" for 4;he. existence of the controversy. In 
other words, it was held that orverbal promise to pay or part 
■ with anything valuable, iif settlement of a controversy nQt 
?existing in the from of a pending suit, canfiot be enfprc^d in 
ti court of law, without some proof that there was a reason- 
.-^'Able ground for such controversy. 

Upon 'the authority of Prater v, 'Miller, supra, we must 
hold that there- was no eri'or in refusing the first charge asked 
.ky appellant ; for, if that change had beep given, the jury 
ould'have been bound to give effect to the agreement there- 
h mentioned, although they might have Jjeliev^d that there 
. ^»f^s ^0 "reasonable ground" for the "controversy" referred 
V'5^0 .in that charge. 
f\ XFpon the authority of Bush v. Bradford, 15 Ala.' 317', we 
"hold, that there was no error in refusing the second charge 
asked by appellant. For, conceding that there may be cases, 
inVhich " misrepresentation without fraud" might ba suffi- 
cient to authorize the vendee of a slave, when sued for the 
.'.•purchase money, to ii^ake a defence, either total or partial, on 
afeco^int of the unsoundness of thd slave.;— ^yet it is ^lear, that 
•_^ n\) defence' can be founded on " misrfepresentatiofi without 
•V-fraud," in such a case as this, where the vendee has accepted 
' a bill: of. sale which contains no ^tarranty, biit shows on its 
face that he took the slave at his own risk. The court below 
. properly, refused to give the second charge, on the ground 
. that it was abstract. . ' ' ■ 

*-\ ^here is nothing in 'any of the rulings of the court below' 
, • Authorizing a reversal, and its judgment is affirmed. 



JANUARY TERM, 1855. 413 

« — — — — *-" ' 

Ewing V. Pec5. 



EWING vs. PBC]^. 

r. -A judgment quashing an execution, on the gi'oimd of the defendant's di.'<- 

' charge ih bankwiptcy. although the court refuses to order siatisfaction or 
discharge, of the original judgment to ]3e,entered, or a perpetual stay of exe- 
cution, relates Jjack to the original." judgment; arid its effect, so far as respects 
the rights of thp parties to tba1i» judgment, is to vacate all ptocess issued for 
it^ satisfaction." ' . • .• .\ 

2. .Money piiid under a phirien fi. fa., pending a motion to quash a previous 
execution on the ground* of ttie defendant's discharge in bankruptcy, may be 
recovered in assumpsit after the rendition of a judgment quashing J;he writ, 
unlcgs the party I'eceiving it can show some equity, ai'ising out of the same 
transaction, whifchjustifles its retention. ' . "f 

8. If the" money was voluntai'ily -paid after the return day of thfe executfon, " 
and under no mistake by the pjirty. paying it as to his rights, he cannot re- 
cover it ; but it does not -foUoxy that the payment was voluntary, merely 
because it was made after the return day of the execution, when there Y."as a 
subsisting levy on the defendant's land : whether it was voluntary or not, 
under such circumstances, is a question for the determination of the jury. ''• 

■■■■■... ■-.... . i 

.Appeal. from the Circuit Court of Tuskaloosa. ■; 

.Tried before the Hon. Turner Reavis. J 

Assumpsit on the common money counts, % Samvel Br 
Ewing against Elijah W. Peck, to recover money paid by the ' 
plaintiff under a pluries execution against himself, which w^s 
issued on a judgment in favor of Peck & Clark. The money* 
was paid to the sheritf .one (iay after * the return day of the 
execution, which had been levied on said EwJng's idiid ; and 
at that time there was a motion pending to quash a. previous 
execution on the sanife judgment, en account of the defend- 
ant's discharge in bankruptcy, which motion was afterwards 
granted, but the court refused to order satisfaction of the 
judgment or |i' perpetual stay .of'^ecution. 

On these facts, thfe court (Charged the jury, in effect, that 
they should find for the defendant ; and this charge is now 
assigned for error. 

J. L. Martin, for appellant : 

1. The judgment quashing the alias Jl. fa., based (as it was) 
upon the ground that the judgment on which the Ji. fa. issued 
was discharged by the certificate of discharge in bankruptcy, 



414 ALABAMA. 



Ewing V. Peck. 



vacated and annulled the pluries fi. fa., and rendered it no 
protection to the defendant in retaining the money collected 
under it. No direcrt proceeding was necessary to quash the 
pluries execution, which was but a continuation of the first : 
if the first execution was vacated, or declared void, for want 
of vitality in the judgment on which it was founded, a sub- 
sequent ofne was rendered void by the same proceeding. 

2. That assumpsit is the proper action to recover back the 
money paid under the exeoutioH, see the following authorities: 
Williams v. Simmons, 22 Ala. 425; Roebuck v. Dupuy, 7 ib. 
484 ]. Burdine v. Roper, ib. 466 ; Ewirig v. Peck & Clark, 
17 ih. 339. 

3. It cannot be successfully contended, that the payment by 

Ewing was voluntary. In the first place, it was paid to the 

sheriff in whose hands the execution was at the time, and who 

had under his control, in virtue thereof, property of Ewing to 

a sufficient amount to satisfy it. .As well might it be said, 

that a criminal, condemned to death, voluntarily, submitted 

to the sheriff 's Tialter, and Avas thereby a/e/o de se, as that 

a payment made under such circumstances was voluntary. 

Whether the money was paid before or after the return day 

of the execution, can make no difference in determining its 

chara(?ter. The payment was made to the sheriff of a county 

remote from that in which the judgment was rendered, and 

^o which the exeeutibn VTas re^rnable, an^ it was made on! j 

one day after the return day of the execution. The Charge, 

under suoh eircjimstances, amounts to this: That the, jury 

cannot doubt, that Ewing knew the precise day on whic^i the 

court to which the execution was returnable commenced; that 

he knew tiie sheriff had no power to sell his property levied 

on undor tlie execution in his hands — that it waS fundus offic 

do; and that Ewing, from some unknown motivp, under uo 

restraint whatever, but. of his o \vn free will, and und^rstaijd- 

ing all ^the facts, paf4 the* 'amgunt of the .execution to ;the 

sheriff as the authorised agent of Peck & Clark. As .to 

voluntary payment, see Evans v. Goveraor/ 18 Ala. 659.; 

Ruthcrfoi'd v. McIvorV^l ib, 750. --."'r^^' .-h ' 

• ^ ' '» 

E, W,. I'eck, pro se, contra: 

' ,1", Tl\e judgment onj. which the p/wrif^execution^^asissue^- 



JANFARY TEEM, X855. 415 

Ewing v.-Peck. 



was a valid judgment ; it had not been reversed, vacated, or 
set aside ; and consequently the said execution was lawfully 
issued. — Cogburn-v. Spen6^, 15 Ala* 549. 

2. The money sought to bo> recovered in this case was either 
paid under the said execution, or it was not. If paid bn the 
execution, it cannot be recgver.ed back, because paid on a 
valid execution ; if not paid on the execution, tl^en it was a 
voluntary payment, in satisfactionof a lawful judgment, which, 
ex (Bquo et bono, the appellant may retain— ^Joiles«v. Watkins, 
1 Stew. 81; University., v. KeMer, 1 Ala. 406; Ihipuy v.. Roe- 
buck, T ib. 484. * * 

CHILTON, C. J. — Ewing insisted that a judgment which 
Pe^k & Clark had obtained against him in the 'Tuskaloosa 
Cir.cui,t Cotirt'was discharg'ed in consequence of his certifi-. 
cateof dischaj'ge in bankruptcy, and moved in said Circuit 
Court to, quash an alias execution of -Jiej-i facias wliich had 
issued thereon, and had been levied on«his real estate, as wBll 
as to enter the discharge of the judgment, aijd for'a perpetual 
stay of execution. ^ . 

The court, upon the trial bf- the motion, refused to grant it, 
and gave judgment against Ewing for the epsts. This judg- 
ment was reversOd by this court, the case, sent JDack, the mq- 
tio"n re-tried, and Jtidgn^enl? entered, quashing* the ese"cuti<a^* 
but the court refused to entet the judgment as discharged i^> 
the certificate, or perpetually to stay execution. * - 

Pending the motion, and before the judgment quashing the" 
alias Jl. fa. was tendered. Peck & Clark sued out a pluries 
fi.fa.^ which was placed in the hands of the sheriff of Mobile, 
and by him levied on the real estate of Ewing^who paid the 
money to the sheriff on' the day after the commencement of 
the term of the Gourt to which said pluries execution was re- 
tHrnablc. Mr. ^ Peck then wrote to Mr. Adains of Mobile, 
requesting him, if he had notprevigusly sent the money which 
he had resdved'from the ^sheriff of Mobile, collected, on an 
execution of Pe.ck^& Clark against SamueJ B. Ewing, to pay 
it to,' Charles Hopkins, of Mobile, and it was accordingly so 
pa'id. . To recover this mcoiey, . so collocted and paid, the ap- 
pellant brought this action. The court charged the jury, that 
i| ,thej believed the. above -facts, they should fiHd for the de- 



416 iLABAMA. : 

Ewing V. Peck. 

fendant. This charge is assigned for Qrror, and presents the 
only point fcfr our revision. 

' ' We are of opinion, that thie effect of 'the judgment quash- 
ing the execution, upon the ground of Ewing's discharge in 
bankruptcy, was to vacate all process is^iqd for its satisfac- 
tion. The plaintiffs in that jiidgment were -tendered an op- 
portunity bf controverting the dischfirge, if it had been fraudu- 
lently obtained ; bift failing 'to do so, they are concluded by 
it, until it is- reversed, or in some way annulled. The dis- 
charge having- thus been judicially ascertained, and virtually 
enrolled as a part of this case, although the court refused to 
order the judgment to be satisfied or discharged, or a per- 
petual stay of execution, yet the discharge in bankruptcy re- 
lates back to the judgment, and operating a discharge of that, 
discharges or vacates all process dependent on it, so far as 
respects the righ^ts of the parties to such judgment. We say 
nothing hs to the rights of purchasers not parties or privies, 
wlio may have acquired property at a sale made under the 
process before the judgment quashing" the execution. 

Under this view of the case, although when the money was 
collected by the sheriff of Mobile, the execution in virtue of 
which it was collected was subsisting, yet, being vacated by 
matter posterior, this action for money had and received lies 
to^ recover it back, unless the party receiving it can show some 
equity, arishig out of tliiS same .transaction, which justifies its 
retention.— 5 S. <fe P. 119; 7 Ala. 848 ; 9 ib. 803 f 11 ib. ^99^ 
and cases there cited ; see, also, 15 Mass. 2^7; l^ Al^ .31?,;. 
22z6. 425. V -"'"ry^. -^^'.'V;- 

But it may be said, the judgment, although discharged by= 
the bankrupt',"? certificate, constituted a good moral conside- 
ration to support a payment, and if the plaintiff in this action' 
made a voltmtary payment to the sheriff, after the return day 
of the execution, and when the sheriff, as such, had no au- 
thority to receive it, he cannot recove;- it back. 

It is certainly true, that if the payment was voluntary, and 
made under no mistake a^ to the rights of the party making 
it, he cannot afterwards recover it back. But it does not fol- 
low that the payment was voluntary, merely because it was 
made when the sheriff's authority to enforce the collection 
had ceased. There was then a subsisting levy upon Ewing's 



JANeABY TEJtM, 1855, 1S^-^ 

« > t ; / — T»'. • r« ^j - ' - i J— T^: ' 



lj^j|fj^'afiid he w.asepgagei^ .by»tli« pendeiK^ 'af hifs inotion in 
.; .the Circuit Court, in an attempt to rid himself of the processi 
On the otliev; hand, the pL^intiffs in the judgment were in 
pursuit of their debt by icgal process, unwilling to await the 
', action of the court upon the motioii to (juash, and they treat 
* the uioney-as though it had 'been collected under -the ex e'cu- 
_ tion, adopting the sheriiY's act in receiving it. Nbw we will 
-Mhot sS,y,"{hat the jDayment, under these circumstances, may not 
, •'hav6"tieen voluntarily made.; but whether it \vas or not, wfis 
• t -^ question* for the jury, and' one which the- court could not 
properly determine,-— a' question of intent; as being tbe fr^fe' 
■ arct of the party, or as beiug' superinduced by the process or 
'.l6vy. If -'the payment was made to avoid the levy, or if,Ew- 
•'•i^g, to' avoid the s£\,le &f his ^and, had proipised the sheriff to 
'• pay.the 'rDoiiey, and in fulfilrhent'of the promise had paid it, 
-ther^B 'would be' no propriet}^ in saying that such payment was 
■ voluntary. 'X^ne, in ^ne scmisq, it is a willid^ payment; 'but 
• the win is influenced* or impelled by the circumstances, grow- 
ing out of the proceedings to enforce the collection of the 
judgnient. 
. ' Jftidgment^eversed, and cause remanded. 



«• '-, . 



nc^ENS vs. YARBOROUOH'S ADMINISTRATOR. 

' 1. If a debtor deposits with bis creditor, unconditionally, notes on a third per- 

' son as .collateraf security, the latter thereby acquires the control and direction 

' Qf their collectfon, and it becomes his duty' to talte all necessary measures to 

prevent the discharge of-any of the parties thereto ; and in euch case notice 

to bring- ^uit ob them should be given jio him. » 

2. If the crcditOT receives the notes ander a special agreement, bj which he ia 

^ riot to sue, but to c<!illect in any other mode, he mnst, as to al^ perlons with- 

•. . Girt notice of -the extent of his pct\vere, be regai-ded tis the general holder, and 

, notice to sue may be gjvQn to him. 
'3. Jt seems, that if a surety notifies the holder of the note of his suretysBin, 
and requires him to bring snrit against the princyf)al* this is a substantial 
' cfimpliance ;with the WquisitiOHs <5f the «tatute, (Clay's Digest, p 5^, § 6.) 

27 ' 



.#1^^ . ■■'■:/ :^ff^-^LABAMA. 



Pickeas v, Yarjoorough's Adm'r. 



.and tfie party eiiti tied te receive the notice may waive its oeing in writing ; 
.but, whether sufficieiit or n6t under the statutey^-ft iS^ood as a commoi-ld^ 
»*"liOtice,'when connected with proof of the holder's failure to^ue the princij^al 
• jE^ftB^ cooeeqaeat ttamage to the ^u^ty. 

■ • • •♦*;^-- '-,-:■;■ * • • • 
•■ -v^jSlppeIl from the Circuit Court of Perry. 

\ i ' ;; |^<i«4 WoVe Jtli^ Hon. .jpr^. -D, Siio^tbidge. 

* ' ■^^^A.^UMPSIT by the adrAiifi3tratoi' of David Yarbof ough, de-. 
, \ ^ceased, against James C. Harrell and Joseph Pickens; "to. 
. _ recover the ^amount of thirteen promissory notes^mfi-de byil^ . 

defendants and one John Reed the 10th day of January, 1843, 
' and payable one year £ffter date to L. A. AVeissinger, late ex- 
ecutor of the last will and testament of said t)ayid Yarboirough, 
. , iu tfic sum of $45 each ; whyih notes,* as a part of the undid' . 
ministered assets .of the said, Yai'borough's estate, wefe turned 
over by said Weigsingei;, aa execuior,-to plaintiff." The suit 
■■' wai commenced in January, 185Q:'. .^ . !, / «J. 

The defendant Pickens separately pleaded non assumpsU^ - 
pay nient, fraud, failure of 'con^ide^-atioh, ^ant of consideration, 
.r and three otjier spedal p>ea§, which" were as follows i' * , . 
••■ • "1. That he is surety for said Harrell.vhis co-defendant, on 
' . the several- promissory notqs sued on in this c^sej anti that 

hej as such surety, at , to-wit, iu tlie county! aforesaid, ♦ 

, on the first day \)f February, 1844, gave notice tti Writing' to 
said L. A. Weissinge?, (lie being then the qualified executor 
of »aid David yarborough,)ac(^ording to the statute in suck *• 
case made and provided, requiring said Weissingef, as such^ 
, . executor, to buing suits on said notes, against the makers - 
' thereof,, as soon as the law would permit ; artd said defendant 
i^nTact says, that said Weissinger, executor as aforesaid, did 
' . not,, in a reasonable time, thereafter, and after said notes.be- 
• . cajoie due, commence suits on said notes, and proceed witk.iglne 
diligence, 1j}' ^he ordinary course of law, to recover jud^m^nt 
jft)'r,' and' by execution to'^iake, the amounts due on said notes, 
althqugh said Weissinger' cOlitinued for a long space of time 
after said notice was givenr to-wit^for the space of three years, 
. * k> liold th^ofiice'of such executor ;' arid said defendant further 
'avers, tliat no suit was ever brough4: on said notes, until this 
'• Isiiitnoi^ "pfendlug was ini^tituted." ' ♦ " 

• • ' ^(:>\'^uTh£ii|i heretofore, tO'Wit, on the first day of February, 



' /.. ' \t, -.. J'ANJJARY. iTERjf, 1855. - ' <^ * ' 

, rfckens v. -Yiu-bCM-oaah's A,(3m}t. 

. • . ' : . — ■ : . I I " ;. ■ _ 

. 4"^44, he gave^tlje executor of the estate of- said Yarborough ; . _.. 

verbal notice to sue^ and tbat suits were not brought; and 

that- defendant was thereby injured iiv,this,to-\v4t, that if suits 

had been brouglrt when rtquired. the money o6uld. h^e been 

niade out of his prinoipal," , » , 

'• • , " 3. Same as firsts except that notice in WTJting was waived*^ 

• , ' Issue was Joined on all , these pleps, and' the. trial resulted . > 

' ^n a terdict and' judgment tov the plaiiitifl" ; and against the 

. '•. jjefendant Ilarrell a judgment by default was taken. • . 

. / On the trial, as,apj)par^Jir£iali. \h& bitl of exceptions^ after .'"* 

. t;h,e plaintiff had read, in evidence the -several notes on which • ■ 

the suit was founded, the defendant 'Pickens introduced one' . . 

Hugh DaVj^ as. a witness,." yhd^e evfdeneewas, in substance,, • " 

as follows : That he was the attorney of John V. Cawthorn, 

and as such had charge aitd control of a note for $5,000, 

sighted by Jamos.'C. Harrell and David Yarborough, for the 

.^purpose of collecting t,hfe sanvej t^at he brought suit on said . *.' 

• note, in the Circuit Court of Perry,county, against said Har- *r 

' • j^H» and r^cQvert d judgraent-for the whole amount due thereon 

in Noven[ibcr'J[843 ; that said Yftrbor'ough died,.and Leonard 

A.Weisginger became his executor ;. that the estate of said 

. ilt.aj'borou^ was Jargely insolvent, and on. the 15th day of . 

August, 1844, decrees were Tendel-ed by the Orphans' Court 

of said, county ;i, in favor »of creditors of said estate, against •',• 

sal d- executor, for amaiftrts severally due to» tliem from the 

assets of said estate ; that said note' of Cawthorn's was pre- - 

. .^ented by^ witness against s^aid estate, and on said 15th August, 

-1844, a' decree was rendered in.hiafayor for the per-cent due ' 

•••^,1'rom said estate on Iris note, amounting to the sum of $1,100,- 

'against said executor ^Hhat said executor was anxious to make 

some arrangement with the creditors of said estate who had 

ol^tained decrees against him, by which, some indulgence ' 

should be extended to bim, he agreeing.to convey his property 

to spcure said creditors; that witness, as agent or attorney. •• 

of said Cawthorn, was not willing to'assent to said arrange- 

^ .^ent, without some further security than that proposed -by... "• 

"^ said executor ; that thereupoasaid Weissinger agreed to place,* * "' 

and did place, in the hands of witness, the notes