author: HÍTCHCOCK, C. J.

text:
    COVY VS THE STATE.

      Touching indictments under the gaming acts.

      As to indictments against defendants jointly, undef these acts.

      1. An indictment may be sustained under the act of 1826, (prohibiting gaming on one's premises,) which charges the person with permitting gaming to be exhibited in his house.
    2. An indictment against one, for permitting gaming to be carried on in his house, which states the offence to have been committed at ■---- in the county of T. (describing the county,) is a sufficiently certain description of the place where the offence is committed, to sustain the indictment.
    3. Indictments for misdemeanors may well charge in several counts, different offences, — the judgment upon each of which being the same.
    4. For the offence of keeping a gaming house, under our statutes, two or more persons may be indicted jointly, and one be convicted, and the others acquitted.

      5. It is not available in error upon a judgment rendered against one for keeping a gaming house, that the jury assessed in their verdict a less fine than is prescribed by the act.
    John C. Cabiness and Ransom Covy, were indicted in the Circuit Court of Tuskaloosa county, for keeping a gaming house. The indictment consisted of several counts, charging—
    First — That the said Cabiness and Covy, on the nineteenth day of September, A. D., eighteen bun-: dred and thirty-five, at-in the county aforesaid, (Tuskaloosa,) then and there knowingly did permit and suffer, a Faro Bank for gaming, to be carried on and exhibited, in a house, then and there occupied by the said Cabiness and Covy, &c.
    Second — That the said Cabiness and Covy, on the said nineteenth day of September, in the aforesaid year, at-in the county aforesaid, did then and there knowingly permit and suffer to be carried on and exhibited in their house, a Faro Bank, kept for gaming, &c.
    Third — That the said Cabiness and Covy, on the said nineteenth day of September, in the year aforesaid, at-- in the county aforesaid, did then and there knowingly permit and suffer a Roulette table kept for gaming, to be carried on and exhibited, in a building then and there occupied by the said Cabiness and Covy, &c.
    The cause under this indictment coming on for trial, the said Cabiness and Covy filed a demurrer thereto, which was overruled. The defendants then moved the Court for permission to plead separately, which was allowed. They then moved for leave to sever in their defence, which the Court refusing to allow, the defendants plead not guilty, and verdict was rendered acquitting Cabiness, and on the first and second counts finding Covy guilty; and thereon assessing a fine against him of one hundred dollars.
    Afterwards the defendant, Covy, moved the Court in arrest of judgment, which being overruled, that, as well as the judgment of the Court upon the demurrer, were reserved for the decision of the Court here.

      Ellis and Peck, for the plaintiff in error.

      Attorney General, contra.
   HÍTCHCOCK, C. J.

— This was an indictment in the Circuit Court of Tuskaloosa county, against Co-yy and Cabiness, under the gaming acts.

There are three counts in the indictment. The first charges them with “ knowingly permitting and suffering a Faro Bank for gaming, to be carried on and exhibited in a house occupied by them.”

The second count charges them with “ knowingly permitting and suffering to be carried on and exhibited in their house, a Faro Bank for gaming.”

The third count charges them with “knowingly permitting and suffering a Roulette Table, kept for gaming, to be carried on and exhibited in a building occupied by them.”

They are charged in all three counts jointly, and the offence is laid, “at--in the county of Tuskaloosa.”

There was a general demurrer to this indictment, which was overruled, and the point reserved for the consideration of this Court.

' The .defendants then pleaded separately, and asked leave to sever in their defence, which was refused. They were then tried, and Cabiness was found not guilty; Covy was found guilty on the two first counts, and not guilty on the third, and a fine of one hundred dollars was assessed by the jury.

The defendant then moved an arrest of judgment, which was overruled, and the point reserved for the consideration of this Court, as novel and difficult.

The defendant has made the following points upon the questions referred to this- Court—

1. That the act of eighteen hundred and twelve, under which this indictment was framed, was repealed by the act of eighteen hundred and twenty-six, on the same subject.

2. That the indictment is uncertain in not stating the place where the house, in which the offence is charged to have been committed, is situated.

3. That the indictment is double, the third count charging a separate and distinct offence from the first and second , and

4. That the defendants should have been charged separately, as well as jointly.

1. There can be no doubt, that notwithstanding the act which establishes the Digest of the statute laws, made by Mr. Aikin, if there are laws in that book, which come in conflict with each other, the latter law must repeal the former. The rules of construction in this particular, must apply; and if it be true, that the act of eighteen hundred and twelve is repealed by the act of eighteen hundred and twenty-six, and this indictment is founded upon the act of eighteen hundred and twelve, the demurrer should have been sustained.

By the act of eighteen hundred and twelve, the offences described in this indictment are prohibited from being carried on in any “ house, out house, or other building,” of any person, or persons. By the act of eighteen hundred and twenty-six, the same of-fences are prohibited from being carried on, “ on the premises'1 of any person, or persons. The penalty under the act of eighteen hundred and twelve, is to be not less than one hundred dollars, nor over two thousand dollars, and standing in the pillory one hour on three successive days. In the latter, it is to be not less than five hundred dollars, nor more than two thousand dollars, and imprisonment not less than two, nor more than twelve months.

It is evident, from this state of the case, that if the indictment can be sustained under the act of eighteen hundred and twenty-six, the question of the conflict of these two acts, does not arise. In the latter act, the word premises is used, instead of the words, house, out house, or other building — a word more comprehensive in its meaning, and which includes all the other words ; for there can be no doubt that a man’s premises may include his house.

The difference in the penalty can have no bearing upon the question arising upon the demurrer. The inquiry then properly arises, under the second point raised, whether the allegation, that the offence was committed in the county of Tuskaloosa, “in the house occupied by the defendants,” as in the first and third counts, or “ in their house,” as in the second count, is a sufficient description of the premises, under the statute.

In the case of J. Anson vs Stewart — Mr. Justice Buller remarked, that in the indictments for keeping a bawdy house, the “ indictment must state the place where the house is situate, and the time“ for the offence is the keeping of the house.” Under the authority of this decision, it is contended that this indictment is insufficient; that the place, where the house was situated, should have been designated with a greater degree of certainty, so that the defendant might know how to prepare for his defence; and also to enable him to plead the record of a former recovery or acquittal, as the case might be.

The case above cited, was an action for a libel, in charging the plaintiff with being a swindler. The Court decided, that a plea of justification to such an action, must state the-particular instances of fraud, upon which the charge was made; and that it was not sufficient to state that the plaintiff “ had been illegally, fraudulently, and dishonestly concerned with a gang of swindlers and common informers, and had been guilty of deceiving and defrauding divers persons, with whom he had dealings, &c.and in the illustration of this position, the judge made use of the expressions above quoted.

It is admitted, that every material fact, which is a necessary ingredient in the offence, must be stated. Hence the place is material; it must be on the premises, which in this instance, is stated to be the house of the defendants, within the county of Tuscaloosa. Formerly, it was necessary in England, to name the town, hamlet, parish, or hundred, or the manor, castle, forest, or other known place, where the offence was committed, besides the county. This strictness was required, because the jury came from the place described. But in England, since the jury are returned from the body of the county, it is sufficient to state only the county in the venire, to which the jurisdiction of the Court extends ; and in indictments for offences created by statute, if any ingredient mentioned in the statute, be stated in the words of the statute, the indictment will be good.

In this State, the jury comes from the body of the county, and we have no subdivisions into parishes, hamlets, &c.; and though in some of our counties we have incorporated towns and cities, yet our juries do not come from them, and the jurisdiction of the Circuit Coui’t is not confined to them; they form a part •of, and are properly included in the general designation of the county, in which they are situated, and this must be the sense, in which the expressions used by Mr. Justice Bullet' were understood by him.

The place, therefore, where the house is situated is sufficiently described, and would be sufficient to enable the party to avail himself of the record, in pleading a former acquittal, or conviction — a plea which often requires parol proof to make out a case of identity.

3. As to the third point, that the indictment is' double, the third count charging a distinct offence, from that in the first and second, it is sufficient to remark, that the authority relied upon by the counsel for the defendant, only goes to show, that two or more offences cannot be charged in any one count. The books are full of authority to show, that indictments for misdemeanors may contain several counts for different offences, provided the judgment upon each is the same.

4. As to the fourth point, that the defendants should have been charged separcditer, as well as jointly, it is only necessary to remark, that this is proper only where a number of persons are included in the same indictment, for keeping different disorderly houses. This is the law, as stated in the authority referred to the defendant’s brief. But when the offence wholly arises from the same joint act, which is in itself criminal, as keeping a gaming house, although the offence of several can not but be several, because one man’s offence cannot be another’s; yet the defendants may be indicted jointly and severally, or jointly only, for it sufficiently appears that all are joined in such act — each must be guilty, and therefore some may be convicted, and some acquitted

We are, therefore, of the opinion, that there was no error in overruling the demurrer.

It is well settled, that that which is not good on demurrer, is not good in arrest of judgment. Whatever is fatal to the demurrer is, therefore, fatal to the motion in arrest of judgment. The only objection that can be assigned for error on the latter motion is, that the fine assessed by the jury was less than the law of eighteen hundred and twenty-six authorised.

To this it may he replied, that the defendants can not complain if the line is less than what the law considers their just deserts; no one can allege an error in his own favor.

The judgment must, therefore, be affirmed.

COLLIER, J. — Not sitting.

       iT.it.754

      Arch. 38.

       Arch.55.

       fibei.

      1 Rus!;.™ crimes, oOl 8 East. 46.

       563.Bacon’


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    GLIDDEN VS LEONARD.

      As to sci. fa. against bail.

    1. It is not essential, in a proceeding by scire facias against bail, to set out the affidavit, or order for bail.
    This was a proceeding by scire facias, issued in the name of James Leonard against John S. Glid-den ; and was founded upon a bail bond, executed by the said Glidden, as the bail of one Walker.
    The scire facias was in the following terms, to wit—
    “The State of Alabama, Mobile County — to the Sheriff of said County, Greeting — Whereas, heretofore, to wit, on the twenty-second day of October, in the year of our L ini, e'gbteen hundred and thirty-two, a writ of cafas ad respondendum, issued from the Circuit Court of Mobile county, in favor of James Leonard, returnable to the fourth Monday after the fourth Monday in October, eighteen hundred and thirty-two, against Thomas G. Walker, in a plea of trespass on the case; upon which said writ was an endorsement, requiring the sheriff of Mobile county to hold the defendant to bail, in the sum of five hundred and ninety dollars and sixty-six cents, according to the statute in such case made and provided ; — which said writ was, on the twenty-fourth day of October, eighteen hundred and thirty-two, delivered to Joseph Bates, jr„, the sheriff of said county, to be executed and returned : and wSjereas the said sheriff did, or the twenty-skrtk day of October, in the year eighteen hundred and thirty-two, by virtue of said writ, arrest the body of said Thomas G. Walker, and thereupon the. .raid Thomas G. Walker, together with John G. Gliddcn, and David Abbott, who has since departed tills life, gave to the said sheriff a certain bond or obligation, commonly called a bail bond, in the penal sum of live hundred and ninety dollars and sixty-six ceñís, conditioned that the said Thomas G. Walker, appear at the Circuit Court of Mobile county next thereafter, to be holden on the fourth Monday after the fourth Monday in October, eighteen hundred and thirty-two, and answer to James Leonard, in a plea of trespass on the case, and perform and abide by such order and judgment as might be rendered in the premises, — and then and there delivered the said bond to the said sheriff, who thereupon discharged,the body of the said Thomas G. Walker — upon said bail; which said writ, together with said bail bond, the said sheriff after-wards returned to the clerk of the said Court at the return term thereof, with an assignment on the back of said bond to the .said plaintiff, signed by the said sheriff, in pursuance of the statute in such case made and provided. And whereas afterwards, to wit, at the term of the Circuit Court, held in and for the said county of Mobile, on the eleventh day of May, in the year of our Lord, eighteen hundred and thirty-three, by the consideration of the said Court, the said James Leonard recovered against the said Thomas G. Walker, the sum of three hundred and seventeen dollars damages, and also the sum of twenty dollars and eighty-seven cents for bis costs and charges by him about his sail, in that behalf expended; whereof, the said Thomas G. Walker is convicted, as appears to us of record: and although judgment thereof be rendered, and our writ of execution thereon issued, commonly called a writ of capias ad satis-faciendum, on the second day of October, eighteen hundred and thirty-three,. directed to the sheriff of Mobile county, which was duly delivered to Joseph Bates, junior, sheriff of said county, to be executed according to law, — yet the said Thomas G."Walker has not abode the judgment aforesaid, but ever since the giving of the same, has avoided, so that he could not be found; and the aforesaid sheriff hath returned upon the said writ into our said Court, on the nineteenth day of November, eighteen hundred and thirty-three, when and where the said writ was made returnable — that the defendant in said writ was not found in his said county, to satisfy said execution ; and so returned said writ, in no part satisíied. And the said James Leonard says, the judgment aforesaid is still altogether unsatisfied, and remains in full force, whereby the said bond and condition thereof have become forfeited, and of which said proceedings now remainingof record in this honorable Court, reference being thereto had, will more fully and at large appear: wherefore, the said James Leonard has besought a remedy in this behalf.
    Now, to the end that justice be done, you are hereby commanded to make known unto John S. Glid-den, who was bail and surety for the said Thomas G. Walker, and who still survives upon the original process, whereupon the judgment aforesaid was given, not only for his appoarance to answer the plaintiff upon the process aforesaid — but. that he should abide by and perform the judgment and order of said Court that should be given thereon, — that lie be and appear before the honorable, the Judge of the Circuit Court of Mobile comity, on the first Monday after the fourth Monday in March, instant, to show cause, if any he has, wherefore the said-James Leonard should not have judgment against the said John S. (Hidden, for his damages and costs aforesaid, and further to do and receive what our said Court shall consider of him in the premises. And have you then and there this writ, with your doings thereon. Witness, &c.
    Upon this scire facias, judgment was rendered against the defendant, Glidden, for want of a plea.
    It was here assigned upon writ of error—
    First — That the said scire facias was not sufficient in law to authorise the judgment.
    Second — 'That it did not appear that an affidavit to hold to bail was made.

      Gordon and Goldthwmle, for plaintiff in error.

      Ellis and Peck, contra.
   PER CURIAM.

— A sci. fa. against bail need not state the affidavit and order for holding to bail: the proceeding according to the English forms is all sufficient.

All irregularities, as to taking bail, may be taken advantage of, on motion, at. the return term. Whe-. ther it can afterwards, is questionable.

The judgment must be affirmed.


author: COLLIER, J.

text:
    LEE VS CAMPBELL'S HEIRS.

      As to special verdicts — how f ar amendable bp the Court.

      As to the entry of judgvunt ill rton.

    1. This Court will not aid a defective special verdict, by reference to extrinsic facts, which appear upon the record.
    2. A special verdict should disclose all material facts upon which it is founded, and which may be essential to authoi ise the entry of judgment thereon: and one not showing intelligibly, the fads upon which the right of a plaintiff, or of a defendant, to recover, is founded, can not be aided by intendment, and thus become the subject of a judgment.
    In error to the Circuit Court of Montgomery.
    In this case, an action of trespass to try titles was brought by the heirs of Archibald Campbell, deceased, against the plaintiff id error, for the recovery of three lots pf land, lying, situate and being in the town of Montgomery, and known as lots numbered 18, 10 and 20.
    The pleas were, not guilty and liberum tenementum; and upon them a special verdict was rendered, on the twenty-fourth day of November, eighteen hundred and thirty-four, in the following words, to wit— “ We find that the defendant has failed to prove, to the satisfaction of the jury—
    1st. That the administrator gave bond in compliance with the requisition of the law.
    2dly. That he failed to prove the requisite notice and publication,

      3dly. That he failed to prove the requisite citation to the heirs.
    4thly. That he failed to prove the appointment of guardians to the minors.
    Sthly. That he failed to prove the appointment of commissioners for the sale of (he land.
    Gthly. That he failed to prove that commissioners conveyed the title to the property in question; but, on the contrary, that it was conveyed by the administrator.
    “ If, in the opinion of the Court, such failures totally invalidate, and make void such conveyance— then we find for the plaintiffs, for lots number 18, 19 and 20 — -.otherwise, for lot number 18, only, and as--sess damages at one cent.”
    And thereupon, the same being seen and considered by the Court, it ivas determined that the law arising on the fads found by the jury, was with the plaintiffs — it was, therefore, further considered, that the plaintiffs recover of the defendant the said lots, number 18, 19 and 20, &c.
    On the second day after the eutry of this verdict, the plaintiffs’ counsel moved the Court, that a minute of the evidence be made, and a transcript of all the evidence of title, produced by the plaintiffs, and the defendant, be taken ; and that the said minute of the evidence of plaintiffs and defendant, and the transcript of the deeds and other evidences of title, form a part of the record ; and that the same might be taken as a portion of its proceedings, in order that the application of the finding of the jury and the judgment of the Court, might be apparent of record, and be fully understood. Which motion was opposed by the tTefenuanl’s comiso!, and they refused to join in making the minute aforosr.it!. But the Court, granted the motion of (lie plaintiffs’ counsel, and ordered the minute of the evidence: and the transcript of the deeds and other evidence of title to be taken as a part of the record and proceedings in the case. And, after this motion was allowed, the plaintiffs’ counsel appeared, and testified to the truth of the minute of evidence filed.
    To the allowance of whirls motion, the defendant excepted, and took his writ of error.
    In addition to these facts, the record contained a voluminous entry of evidence, produced upon the trial of the cause, and a bid of exceptions as to sundry opinions of the Court- — -none of which the report of the ease renders it necessary to disclose.
    Thoringion, for the plaintiff in error.

      G or don, contra.
   COLLIER, J.

— Tiie defendants in error, brought an action of trespass in the Montgomery Circuit Court, to. try titles, &c., to lots numbered eighteen, nineteen, and twenty, situate on the south side of Washington street, in the town of Montgomery.

The cause was tried on issues formed on the pleas not guilty and libemm tenementum, and the jury returned a special verdict in these words — “We find that the defendant has failed to prove to the satisfaction of the jury—

“First that the administrator gave bond in compliance with the requisition of the law.

“ Second — That he failed to prove the requisite notice and publication.

“ Third — That he failed to prove the requisite citation to the heirs.

“ Fourth — That he failed to prove the appointment of guardians to the minors.

“ Fifth — That he failed to prove the appointment of commissioners for the sale of the land.

Sixth — That he failed to prove that commissioners conveyed the title to the property in question; but on the contrary, that it was conveyed by (he administrator.

“ If, in the opinion of the Court, such' failures totally invalidate and make void such conveyance, then we find for the plaintiff, for lots number eighteen, nineteen, and twenty ; otherwise, for lot number eighteen only, and assess damages at one cent.”

The record discovers, that two days after this verdict was returned and the jury discharged, the judge, from his own recollection of the evidence, the accuracy of which was verified by the counsel for the defendants in error, on their motion, allowed the evidence in the cause to be entered on the proceedings of the Court, though objected to, by the counsel for the plaintiff' in error. On the verdict, the Court rendered a judgment for the plaintiffs below, to reverse which this cause comes here.

Several exceptions were taken on the trial to the instructions of the judge to the jury, but as they have not been noticed in the argument, we will only enquire, whether the verdict is a sufficient warrant for the judgment.

In referring the facts found by them to the Court. for its judgment, the jury seem to have entirely overlooked the evidence introduced by the plaintiffs below ; but their inquiries, so far as we are informed by their verdict, seems to have been directed, rather to ascertain what failures there were in the proof of the defence, than what facts were shewn favorable to the right of recovery. The failures of proof are so briefly stated, as not to enable us to determine how far they affected the material points in the de-fence. It has, however, been insisted, that for .the purpose of learning what proof was offered by the plaintiff below, it is competent for this Court to look into the proof, which was made part of the record in the Circuit Court, and also to refer to the bill of exceptions, taken at the instance of the plaintiff in error. To sustain this position, we have been referred to 2 Dun. Pr. 664, and 1 Salk. 47. These authorities certainly countenance the idea, that if a special verdict is defective, it is amendable by the notes of counsel or the judge, and even by affidavit of what was proved on the trial. To determine a verdict to be amendable, supposes the Court to possess the power, to employ the manual process necessary to effect a literal amendment. To amend is, in effect, to reform, to do which, according to all correct reasoning, requires the same power as to make.

We do not feel ourselves authorised to aid the verdict by a reference to other facts, on the record.— Were we to do so, the verdict, instead of being the act of the jury, would be that of the Court. Such an assumption, we would consider a palpable, if not alarming invasion of the rights of the jury.

In M’Arthur vs Porter’s lessee the special ver-diet referred to a deed of conveyance, which was described, but not set out substantially, or literally.

A deed was found in the record, but not being part of the verdict, the Court determined that they could not say it was part of the finding of the jury, and that they would not refer to it in aid of the verdict.

So in Jenks, et al. vs Hallett, et al. — it was held, that the Court can not intend any thing on a special ver-dit, which is not found by the jury. The principle of these cases is, that the verdict must be complete in itself, and can not be aided fiom any extrinsic source.

In Seward vs Jackson — it was held to be of thi essence of a special verdict, that the jury should find the facts, and not the evidence of facts. Such a conclusion seems necessarily to result from the consideration, that it is the peculiar province of the jury to pass upon the credibility of witnesses; to compare testimony, and to draw inferences from all they have seen or heard.

In Barnes, et al. vs. Williams — it was decided, that where the jury, in a special verdict, do not distinctly find the essential facts, although there is sufficient evidence to establish them, the Court would not render a judgment upon such an imperfect special verdict. To the same point are — Hob. -2t,2— 1. Caine’s Rep. 60 — lArch. Pr. 191 — 3. T. R. 198— 1. Hen. & Munf. 236.

It is competent-for parties, by consent, in a Crurt of original jurisdiction, to withdraw the decision, upon evidence, from the jury, and substitute in their stead, the judge, by making a case agreed. And this is done on demurrer to evidence. But where the jury determine upon the evidence, and return a special verdict, they must find the facts, that the judge may adjudge the law understandingiy.

We are not to be understood as deciding, that the jury should disclose, in a special verdict, every fact, with the proof of which they are satisfied. If they return facts, intelligently set forth, which shew no right to recover, or which shew a good cause of action, without any available defence, it would certainly be the duty of the Court to render a judgment;

But the verdict in this case, disclosing no facts to, shew the right of the plaintiffs below to recover, or the insufficiency of the defence, and nothing being allowed to be intended in favor of either, the judgment must be reversed, and the cause remanded, that a venerie facias de novo may be awarded.

       I Peters, 6516

       *Cain*'s

      ^80(Powen’

       41i5Wheat‘


author: HITCHCOCK, C. J.

text:
    WATERS VS CARLETON.

      As to orders for the payment of money, not aufhoris* ■ ing an action.

    1. A mere request or authority in writing to an attorney, to pay money out of a particular fund, when collected, can not be made the foundation of an action against the drawer.
    2. Such an instrument is not embraced within the statute of 1807, authorising suit by an assignee.
    Charles Carleton, assignee of James K. T. Walker, declared in Montgomery Circuit Court, in trespass on the case, against Philemon Waters, upon a written instrument, in the following words, to wit—

      “ Messrs Golthwaite & Campbell,
    “ Pay to James K. T. Walker, two hundred and thirty-eight dollars and forty-eight cents, out of any money you may collect in the case in which Hiram Cheeseborough is plaintiff, and James Pritch-ard is defendant — and this shall he your receipt for the same. P. Waters.”
    . “ January 17, 1833.”
    The declaration averred an acceptance of this writing by the drawers — a failure of the acceptors to pay, and the insolvency of the said Pritchard, from whom the s,aid fund was to be derived. And upon a demurrer to the declaration, judgment was given for the plaintiff.

      The defendant., upon writ of error, complained in this Court of the said judgment upon demurrer.

      Gollhwaite & Campbell, for plaintiff in error.
    Dargan, contra.

      Aikin’s Digest 32S.

   HITCHCOCK, C. J.

— This was an action of as-sumpsit, founded upon an instrument in writing, of which the following is a copy—

Messrs. Goldthwaile and Campbell :

“ Pay to J. SC. T. Walker, two hundred and thirty-eight dollars and forty-eight cents, out of any monies you may collect in the case, in which Hiram Cheeseborough is plaintiff and James Pritchard is defendant, and this shall be your receipt for the same.

“ (Signed) P. WATERS.

“January 17, 1833.”

The declaration avers the acceptance of the order, iby Goldthwaite and Campbell, according to its terms; its transfer by delivery to the plaintiff; the ¡return of nulla bona, against Pritchard, and notice to the defendant: to which there was a general demurrer, which was overruled, and judgment final for the plaintiff, the défendant having failed to plead over.

The question is, whether this is such an instrument, as is the foundation of an action. It is evident •'that it is not a bill of exchange, which is an order for the payment of money absolutely. By the terms of this instrument, the payment is to depend upon a contingency, which may never happen. The sufficiency of the fund in this case, having failed, the order has become invalid

In a case,the Court held, that the bill being drawn on a particular fund, it would not make the drawer personally liable, and therefore, it is not a bill of exchange within the custom of merchants ; for it is essential'to such a bill, that it depends upon the personal responsibility of the parties whose names are on it.

Neither is it such an -instrument as comes within the statute, relating to the assignment of bonds, bills, &e., which authorised suits, as in cases of inland bills of exchange.

It is, at most, but an appointment, or authority, to the person, to whom it is addressed, to pay so much money out of a particular fund, which, if they refuse to do, no recourse can be had on the instrument itself, against the drawer; but recourse must be had to the original debt, if any such existed, which induced the making of the appointment.

Let the judgment be reversed.

       Chitty on Bills, 42.

      iBibb503

      tAik-D 328

      tiBibb490


text:
    SADLER et ux, et al. VS HOUSTON & GILLESPIE.

      As to testimony by a husband in favor of the wife.

      As to agreements by the wife to pay a note signed by her husband, out of her separate- estate.

    1. The deposition of a husband, taken in a Chancery cause in which the wife is a party, is not competent as testimony, either for or against her.
    2. A note signed by husband and wife, under an admission by her, that it is given for their mutual debt, and accompanied by her written undertaking to discharge it, is a proper charge, in equity, upon her separate estate, as secured by ante nup-tual agreement.
    3. Such note, after repeated admissions of a liability, can not be defeated in the hands of an assignee, by allegations as to a failure of consideration.
    4. This Court has no authoiity to amend the decrees or judgments of inferior Courts, (they being such as should have been rendered,) by authorising their immediate execution. -
    In error to a decree of the Circuit Court of Morgan, exercising Chancery jurisdiction.
    In this case, Houston & Gillespie, the assignees of Ann Rossell, filed their bill in Chancery, to compel the payment of a promissory note, bearing the singar-tures of Isaac and Mary Sadler — out of a separate estate, which Mary Sadler held, under marriage articles.
    The answer of the defendants admitted, that the note had been signed by Isaac Sadler, with his own and wife’s name, and that the consideration thereof was for the benefit of the wife. It, however, resisted a recovery — alleged the marriage articles, anda failure of consideration : averred, that the note had been given for land, which was to become a part of the trust estate; and insisted on the allegation that, the payee of the note had acted fraudulently.
    In the course of the trial, it was attempted to introduce the deposition of Isaac-Sadler, as evidence in the cause, but which was rejected, by the Chancellor. Some other exception was taken to the introduction of witnesses, not material, in view of the cause as decided, to be noticed.
    The proof being ample, that the wife did approve the contract made by her husband, and under which 'the note was executed, the Chancellor rendered a decree in favor of the claim of the complainants, and ordered its satisfaction out of the trust property; appointing the clerk of the Circuit Court of Morgan county, a commissioner, to carry the "decree into effect.
    From this decree the defendants took a writ of error.

      M’ Clung, for the'plaintiffs in error.

      S. Parsons, contra.
   COLLIER, J.

— The defendants in error filed their bill in the Circuit Court of Morgan, against Sadler and -wife, and Wallace, a trustee, (in an anti-nuptial agreement, made between the husband and wife,) praying.that the separate estate of the wife might be subjected to the payment of a promissory note, made and subscribed, with the names of the husband and wife, payable to Ann Rossell, and by her assigned to the defendants in error.

The agreement secures to the wife all estate, both real and personal, of which she was possessed, before, or might become possessed after, coverture, and invests her with powers quite as extensive as are usually conferred by such agreements.

On the hearing, the Circuit Court disregarded the deposition of the husband, which had been taken at the instance of the plaintiffs in error," without any previous order for that purpose ; refused to reject the depositions of Bestor, Fields, and Sapps, taken, at the instance of the defendants in error, and rendered a decree in favor of the defendants in error, directing a sale of the separate estate of the wife, as asked by the bill.

The rejection of Sadler’s deposition, the refusal to reject the depositions of Bester, Fields, and Sapps, and the rendition of the decree, are the only matters assigned for error.

■ It is an universal rule, as applicable to civil causes, that the husband and wife can not give evidence for, or against each other. Under the influence of this rule, without making an inquiry into the extent of his interest, the deposition of Isaac Sadler was properly disregarded by the Court.

Without inquiring whether the depositions of Bestor, Fields, and Sapps, should be excluded, so far as they speak of a written authority to the husband, to sign the name of the wife to the note : the admission by the wife, that the note was the note of her husband and herself, and that it was to be paid from her separate estate, is an adoption of the signature made by the husband for her, and is as effectual for all purposes, as if a previous authority had been given. — ■ That the wife i.hus adopted it, is satisfactorily shewn by the depositions of Chapman, Peters, and Sapps, to say nothing of the circumstances of corroboration furnished by other depositions in the cause.

In regard to the correctness of the decree, the wife has expressly undertaken in writing, in conjunction with her husband, to pay the note in controversy. Upon a full review of the authorities in the case of Forest and wife vs Robinson, at this term we decided that such an engagement was a proper charge upon the separate estate. The consideration of the note in question, was for the separate benefit of the wife, and redress might well have been sought in equity.

The failure, or want of consideration, which the plaintiffs in error attempted to set up against the payment of the note, even if sustained by ‘proof, could avail nothing. The repeated admission of a liability, and expression of a determination to pay it, after the defendants in error became its assignees, prevent them from denying as against its present proprietors, the sufficiency of the consideration on which the note was made.

Our attention has been called to the latter part of the decree, by the defendants’ counsel, with a view to have it so corrected here, as to authorise its immediate execution — the time appointed for that purpose having expired. We have no right to. cause amendments to be made in decrees and judgments of an inferior Court, unless they are not such as “ should have been rendered,” but that must be left to be done by the Court below.

We are of opinion, that there is no error, and the decree is therefore affirmed.

       Ante,44.


author: HOPKINS, J.

text:
      F. & E. PECK VS DINSMORE et al.

      As to parol testimony upon written agreements.

      As to, proof upon a bill of lading.

      1, A bill of lading, not declared upon, is not evidence, in an action to recover for goods lost by a carrier, without proof of its execution.
    2. Where a bill of lading is produced, in an action, to recover for goods lost by a carrier, such production is an admission, that the undertaking of the carrier, is in writing — and parol proof that the goods carried were shipped by the shipper, as the agent of the plaintiff, is not admissible.
    S. In an action to recover for goods lost by a carrier, evidence, that the goods were shipped in the name of one, as the agent of the plaintiff — and were the property of the plaintiff — is not testimony alone of an undertaking to carry.
    This was an action of trespass on the case, for the recovery of damages, for the loss of cotton, undertaken- to be carried upon a steam-boat; and was prosecuted by the plaintiffs in error, against the defendants in Mobile Circuit Court.
    Upon the plea of not guilty, a verdict was rendered for the defendants; and by bill of exceptions and writ of error, the cause was removed here.

      It appeared from the hill of lading, that the cotton had been shipped by and in the name of one Alexander Wemyss. The plaintiffs produced the bill of lading and then offered to prove by the said We-myss, that he shipped the cotton as the agent of the plaintiffs, and that the cotton was theirs; and thereto offered the hill of lading in evidence. This testimony, the Court rejected.

      Ellis & Peck, for plaintiffs in error.

      Stewart and Thornton, contra.
   HOPKINS, J.

— It appears, from the bill of exceptions in this case, that the plaintiffs in error, produced, at the .trial of the cause, the bill of lading, which showed that the cotton had been shipped by, and in the name of one Weynass. The bill of exceptions states that they then proposed to prove by Weymss, that he shipped the cotton as their agent, and that the cotton belonged to them ; “ and then offered the bill of lading in evidence, which testimony the Court overruled, and refused to allow to go to the jury.

We understand, from the record, that the bill of lading was not read as evidence to the jury, but that the Circuit Court rejected it, when the plaintiffs offered to read it as testimony. It was offered without any proof that it was executed by the authority of the owners of the steam boat, or of the hand-writing of the person, whose name was signed to it as clerk.

The declaration was not upon the bill of lading; it was not, therefore, without proof of its execution, competent evidence; but the production of the hill of lading, was an admission by the plaintiffs, that the undertaking of the owners to carry the cotton to the city of Mobile, was in writing, and as they failed to prove the written contract, they had no right to prove a parol agreement, not in writing, to transport the cotton. The witness Weymss, was offered to prove, that they owned the cotton, and he shipped it as their agent, but not that the owners agreed to carry it. .Such evidence alone, did not tend to prove, that the owners of the boat undertook to carry the cotton; .and when the only testimony of an undertaking, on their part, was properly rejected, it was proper to reject, also, the evidence of the witness, because it was irrelevant. The facts, which the plaintiffs proposed to prove by the witness, that the .cotton belonged to them, and he shipped it as their agent, could not affect the owners of the boat, and evidence of them was, therefore, incompetent, after the only testimony, that was offered of an undertaking, .on their part, to carry the cotton, had been rejected.

Let the judgment be affirmed.


text:
    SIMPSON VS WILEY et al.

      Questions touching libel.

    1. The publication .of a libel can not be established by a comparison of one paper, which is not proved to have been published, with another, published, but not produced, on the trial, nor its absence accounted for.
    2. Admissions of a defendant, in a letter, as to the publication of a libel, cannot be proved, where the letter itself is not produced, or its absence accounted for.
    3. Evidence of a general impression, that defendants are the editors of a paper, in which a libel is charged to be publish-lished — is not testimony that they are joint-partners and editors thereof.
    In error to the Circuit Court of Dallas.
    This action was trespass on the case, by Simpson, against Wiley, M’Guire and Henry, for the recovery" of damages, for publication of a libel, in a certain paper, of which the defendants were charged to. be proprietors and editors; and whereby ’the plaintiff was charged as having violated his duty, as a post master.
    The defendants - demurred to the declaration, which demurrer being overruled, they plead the general issue, and upon which a verdict was rendered for the defendants.
    On the trial of the cause, a bill of exceptions was taken, which showed the following facts to have transpired on the trial.
    On the trial of this cause, the plaintiff produced a witness, Dr. Hogan, who was sworn and examined. The plaintiff produced and placed in his hands, a newspaper, entitled “Alabama State Intelligencer;” following which title, were the words, “ by Wiley McGuire & Henry — Wednesday morning, April 13, 1831(which paper was referred to.) The witness stated, that previous to the thirteenth day of April, eighteen hundred and thirty-one, he took a paper of the above title, printed at Tuscaloosa; and that he took it after that period, and may have done so at that date, but could not say positively. Plaintiff then asked the witness, if the paper he held in his hand,'bore a resemblance to the one he took from the office of the Alabama State Intelligencer. This question was objected to by the defendants; and the objection was sustained by the Court.
    Plaintiff then asked the' witness, whether it was the general reputation at Tuscaloosa, and other parts of the country, that defendants were partners, or joint editors, in the publication of the Alabama State Intelligencer. This question was objected to by defendants, on the ground that such facts could not be established, legally, by general reputation; and the Court sustained the objection.
    ■ The plaintiff introduced one Tarver as a witness, who said he was before, and on, the thirteenth of April, eighteen hundred, and thirty-one, a subscriber, and took a newspaper, styled the Alabama State In-telligencer, printed at Tuscaloosa; that he believed he once paid the defendant, Wiley, a portion of his subscription for that paper. He was then asked, if the paper then taken by him, did, or did not, contain an article, the same as the one contained in the paper exhibited in Court; and whether the same was, or was not, in all respects, similar to the one he then took from that office. The paper alluded to, purported to contain a copy of the article, charged against the defendants as a libel, and commenced — “ Col. Richard M. Johnson has,” &c. The defendants objected to the question being answered; because the paper the witness took, was not produced: and the Court sustained the objection.
    The plaintiff further produced as a witness, Joseph J. Borden; who testified, that he had correspondent with Wiley, the defendant,' as one of the editors of the Alabama State Intellligencer, and he received replies from him to such correspondence. To a.question by defendants, witness answered, that such correspondence was in writing: whereupon, defendants moved the Court, that the evidence was inadmissible- — the letters not being produced; and requested the Court so to pronounce, and that it should not go to the jury as evidence. The Court sustained the motion, and the evidence was directed to be withdrawn.
    The witness,'(Borden,) having stated, that he was post-mastor at Cahawba, and that the newspaper styled the Alabama State Intelligencer, came there, and that about the thirteenth of April, eighteen hundred and thirty-one — he was asked to look at the pa- • per, (before mentioned, and the same attached to the bill of exceptions,) and say whether it resembled those which came to his office entitled as above. The defendants objected to this question being answered by the witness; and the Court sustained the object on; and it was not answered.
    Borden was further asked, if he had, or had not, written and sent to Wiley, the defendant, a letter, (of which a copy was purported to he given in the article contained in the paper presented, and to which he was referred, and which purported to be written by him, [Borden] to Wiley.) The answering of which was objected to by defendants. The Court sustained the objection, and it was not answered— the letter not being produced or accounted for.
    The deposition of William T. Barry was offered tobe read to the jury as evidence; but it was objected to by defendant, on the ground that a letter referred to by deponent, as signed Thomas H. Wiley, was not produced. The objection was sustained ; and the Court excluded the deposition, which was attached, with the affidavit and notice upon which the commission issued, and was sought to be a part of the bill of exceptions.
    To all which opinions, sustaining of motions, exclusions of evidence, ami every other in after, as above set forth, plaintiff excepted; and ashed for the same as his bill of exceptions.
    Which was accordingly done, and the plaintiff took his writ of error.
   HITCHCOCK, C. J.

— This was car action brought by Simpson, against Wiley, et ah, in the Circuit Court of Dallas county, for a libel.

The matter charged as libellous, is alleged to have been written and published by the defendants, in a paper called the Alabama State Intelligencer, printed at Tuskaloosa, under date of the thirteenth of April, eighteen hundred and thirty-one.

The questions presented by the record, arise upon a bill of exceptions, take:* by the plaintiff below. They are all of asimilar character, and relate to the exclusion by the Court, of testimony offered by the plaintiff’, to ÍI:;. the publication upon tho defendants. They arc us follow—

1. A witness, Doctor Hogan, was produced, by whom ho proved, that previous to the thirteenth of April, eighteen hundred and thirty-one, fee took a paper called the ‘‘Alabama Citato Intelligencer,” from the cilice of that paper, printed in Tuokaloosa; but whether lie took it at that elate, he could not positively state. Ho wan Ikon asked, if the paper presented to him, which was a paper styled the “Alabama State Intelligencer,” following which words, were the words, “ by Wiicy,-McGuire & Henry — Wednesday morning, April 13, 1831,” bore a resemblance to the paper taken by .him from the office. This question the Court decided to be illegal.

2. The witness was asked, whether “ it was the general reputation at Tuskaloosa, and other parts of the country, that the defendants were partners and joint editors of that paper.” This question was also decided to be illegal.

3: A Mr. Tarver was produced as a witness, who swore that he had paid Wiley, one of the defendants, for the “ Alabama State Intelligencer.” He was asked, whether the paper fee paid for, did not contain an article, in all respects, similar to the one shewn to him. The paper received by the witness was not produced. This question was decided to be illegal.

4. A Mr. Borden was then produced, who swore, that he had corresponded with Wiley, as one of the editors of the “Alabama State Intelligencer,” and received replies from him. Such correspondence was in writing, and the letters not being produced, this testimony was excluded.

5. The witness stated, that he was post-master, at Cahawba, on the thirteenth of April, eighteen hundred and thirty-one, and that the newspaper above alluded to, came to that office. He was then shewn a number of that paper, dated the thirteenth of April, eighteen hundred and thirty-one, and asked whether the paper which was shewn him, resembled those sent to his office. This question was pronounced illegal.

6. He was then asked, if he did not write a letter to Wiley, a copy of which is purported to be given in the article contained in the paper shewn to him. This question was also decided to be illegal.

7. The deposition of William T. Barry was produced, to prove a publication by Wiley, in which he states, that he received a letter, signed Thomas H. Wiley, in which was enclosed a printed paper, (the libel declared on,) .but the letter was not produced, for which cause the deposition was excluded.

A verdict and judgment was rendered for the de^ fendant below ; the case has come here by writ of error, and the several exclusions of evidence, as above stated, assigned for error.

They present three points—

1. Can the publication of a libel be established by the resemblance of one paper, which is not proved to have been published, to another which lias been published, but which is not produced, nor its absence accounted for.

2. Can a publication be proved by any admissions in a letter, when the letter is not produced, or its absence accounted for'?

3. Can a publication be proved by evidence of the general impression, or reputation, through the country, that the defendants were joint partners and editors of the paper'?

The first, third' and fifth questions propounded to the witnesses, relate to the first; the fourth, sixth and seventh, relate to the second, and the second question relates to the third point.

It is admitted, that before a libel can be read at the trial, it must be proved to have been published by the defendant, or by others, with his privity, and when this is attempted to be done by other, than direct and positive evidence, such as, that the witnesses saw the defendant circulate the paper produced ; .but when it is attempted by cireumstanciai proof, ■the party must proceed by the ordinary rules of evidence.

In relation to the three attempts, embraced by the first point, it is analagous to an offer to prove the paper by. a comparison of hand-writings, with this additional objection, that the paper with which the comparison is to be had, was not before the jury. Admitting the evidence to have been received, -it would not still have established the fact of publication by the defendants, as it would not have proved the publication of the paper produced by the defendants, which was the issue in controversy.

It is only necessary to say, on the second point, that the best evidence of the facts contained in the letters referred to, would be the production of the letters themselves. No notice was proven to have been given to the defendants to produce, on the trial, the letters between Borden and Wiley, and the fact, that the post master general thought proper, for reasons of public policy, to withhold the letter received by him, will not authorise the Court to euopend the rule of evidence, and allow that which is ceccndary.

As to the third point, the evidence offered could amount only to hearsay, which belongs to another class of cases, and if proven, would not establish the main fact, to wit, the publication, by the defendants, of the paper produced on the trial.

It is true, that the connexion of the defendants with the “ Alabama. State Intelligencer,” and that the paper produced was issued freír, that office, both of which facts, it was nccexruy to prove, might depend upon proof of many circorcteKccs, independent of each other, yet each fa;*,:;, or circumstance, must be established by evidence, legal in its character, and the difficulty of getting at the main fact, which, in England, has produced a statute upon the subject, does not authorise the Court to relax the established rales of evidence.

There being, therefore, in our opinion, no evidence of a legal character excluded, the judgment must be affirmed.


text:
    ST. JOHN VS GARROW.

      As to acknowktlfjments, tailing a contract without the statute of limitations. a
    1. In actions, ex contractu, any expression which amounts to an admission that a debt is due, or that, a liability exists, will take a case without the statute of limitations, and revive the original cause of action.
    2. Such admission has the same effect, whether made to a creditor, or a stranger; and is proper proof under a general replication to a plea of the statute of limitations.
    Samuel fu. Johsa, jr. decís?.red in Mobile Circuit Court, against Samuel EL GLutow, as indorser of a bill of exchange. The defendant relied upon non-assrauRii, n:i;i the plea of the statute of limitations; and under these pleas, the jury found a verdict for the clofenuant.
    On the trial of die cause, the plaintiff produced and read in evidence the bill of exchange, declared on, and preved protest for non-payment,, demand of acceptance, refusal, and notice to defendant; and to take the case out of the statute of limitations, he introduced a wiinm, who testified, that in repeated conversations with the defendant, about a year after the bill was returned, that he spoke of the said bill as a then existing liability, and assented to an arrangement which had been made with a previous indorser, by which time- had been given him for more than a year, to pay the same.
    The p lain tiff requested the Court to instruct the jury, that a recognition of the demand, as a .subsisting debt, in which the defendant was then liable, was sufficient to prevent the statute of limitations from beginning to run from the time it was dishonored ; and that the statute of limitations did not bar a recovery on the said bill, until after six years had elapsed from a recognition of the same, as an existing demand; and that an acknowledgment of the same, as a subsisting debt, within six years, was sufficient to prevent the operation of the statute — • which charge the Court refused, and instructed the jury, that after the statute began to run, from the dishonor of the bill, a new acknowledgment was not sufficient to prevent the statute from running; that it required in addition thereto, a promise to pay; and that, in law, there was no difference, whether the six years had expired, or had commenced running. — All which was excepted to; and the plaintiff took a writ of error.

      Gordon & Golthwaite, for plaintiff in error*

      StewartS? Thornton, contra.
   HOPKINS, J.

— This was an action of assumpsit,-brought by the plaintiff against the defendant as an indorser of a bill of exchange, dravvn on the nine-' teenth day of February, eighteen hundred and twenty-five, at ten days’ sight, presented to the drawee, for acceptance, which he refused to make, on the twenty-fourth of March, in the same year, and protested for non-payment, on the sixth of April afterward.

Upon the trial of the plea of non-assumpsit in the Circuit Court of Mobile County, the plaintiff proved every thing that was necessary; and to support the issues which he had taken to the pleas of the statute of limitations, he proved by a witness, that about a year after the bill was returned, the defendant frequently mentioned the bill to him, as a liability which then existed, and assented to an arrangement that was made with a prior indorser, by which more than a year was given to that indorser, to pay the bill. Upon this evidence the Circuit Court refused to instruct the jury, that proof of the acknowledgment of the debt, within six years before the commencement of the action, removed the bar created by the statute — and did instruct them, that, to take the case out of the statute, an acknowledgment and a promise to pay were both .necessary.

A bill of exceptions was taken by the plaintiff, to the refusal of the Court to give the instruction for which he asked, and to that also, which was given.

We think the principles are settled, that in actions ex contractu, any expression which amounts to an admission that the debt was due, or the liability existed at the time, takes the case out of the statute, and revives the original cause of action.

Such an anknowledgment is an implied promise to. pay, and is equivalent to an express promise. It has the same effect, whether it be made to the creditor, or another person, before the time had elapsed, which would have created, but for the acknowledgment, the bar of the statute, or afterward.

As an acknowledgment revives the debt, proof of the admission, supports the cause of action, stated in the declaration, and is proper, under a general replication to a plea of the statute. A cause of action is held to accrue, from the tinte an acknowledgment is made: the effect of one is, therefore the same, whether made before or after the bar of the statute was created. An acknowledgment tobe followed by these effects, must be an unconditional one, that the debt is due, or the liability exists, when 4 Port. 223acknowledgment is made, and not merely that the demand was originally just

The acknowledgment in this case was, we think, sufficient i to remove the bar oí the statute; and the Court erred, both in refusing the instruction, for which the plaintiff asked, and giving that, to which exception was taken.

Let ^ie ju<%raeat he reversed, and the cause re? ^nded.

       SuwhSx joh¿s 3X5 C.L.R245; ¿¡Wash, o 'CB.ep.404 892-3;’ if srBhnlt íímaió— oTIim^of act’ns.Vo


author: PER GURIAM.

text:
    MOORE VS CLEMENTS.

      Ás to damages upon bills of exchange.

      As to demand of payment of a Mll of exchange.

    1. The act of the twenty-first of December, eighteen hundred1 and thirty-two, reducing the damages on bills of exchange,'— applies only to bills of which the Bank of the State of Alabama, or one of the Branches, is the owner; and not to bills owned by private persons.
    2. The protest upon a bill of exchange, is evidence of the facts' of a demand, &c., unless these facts be put in issue by other testimony.
    In error to the Giren It Court of Bibb.
    This action was assumpsit upon a biil of exchange,by Clements, the endorsee, against Moore, the drawee.-The biil was protested for non-payment; and the defendant plead, non-assumpsit; paymentand accord and satisfaction ; and a verdict and a judgment were had for the plaintiff.
    On the trial below, the defendant requested the Court to charge the jury—

      First — That the damages, in the event of the plaintiff's recovery, could only be assessed at five per centum. This the Court refused : and charged the jury — that the damages should be assessed at ten per centum.

      Second — That a demand of the Cashier of the' Bank, at the counter of the Bank, was not a sufficient demand : and if so, it was necessary to prove that the demand was made during hanking hours. This charge was also refused.
    All which was excepted to.

      Stewart and Thornton., for plaintiff in error.

      Ellis and Peck, contra,
   PER GURIAM.

— The defendant in error brought his action against the plaintiff in error, (in the Circuit Court of Bibb,) on a bill of exchange of which he was drawer, payable at the Bank of the State of Alabama, to David R. Boyd, which, bill having passed through several hands, became the property of the defendant, by a regular chain of endorsements. On the trial, the judge was requested to charge the jury, that on a protest for non-payment, the defendant in error was only entitled to recover five per cent, damages, which was refused ; the Court instructing the jury, that ten per cent, damages were recoverable.

The Court were also requested to instruct the jury, that a demand of the Cashier of the Bank at the .counter of the Bank, was not a sufficient demand, and if so, it was necessary to prove the demand was made during banking hours; which instructions were also refused by the Court.

In regard to the damages recoverable on such a bill, after a protest for non-payment,’ it is clear that the instruction of the Court was correct, and that the first section of the act of the twenty-first of December, eighteen hundred and thirty-two, “ to reduce the damages on bills of exchange, purchased by the Bank of the State of Alabama, or either of its branches,” relates only to bills of which the bank, or one of its branches, is the proprietor.

It appears that the protest for non-payment was before the jury, which by statute, is made evidence of the facts of presentment, non-acceptance, nonpayment, &c., and dispenses with the introduction of further proof, as to these points, by the defendant in error. The latter instructions asked, then, unless it appeared, that there was evidence opposing the facts and inferences, deducible from the protest, were immaterial, and might well have been refused,

Judgment affirmed.

       328 — ’9

       tjb_ 3S7.


text:
    KENNEDY VS HITCHCOCK.

      As to evidence of a demand, in a proceeding for und lawful detainer.

    1. In a proceeding for unlawful detainer, by A, for the use of .B, — a demand by B, in his own name, is not evidence of the’ demand required before the. jury.
    In this case, Henry Hitchcock, who sued for the use of Thadeus Sanford, exhibited his complaint for unlawful detainer, against the plaintiff in error, before a justice of the peace, of Mobile county, and obtained a judgment upon verdict of a Jury.
    Upon the trial, a notice and demand of the premises were produced, purporting to have been made in the name of “ T. Sanford,” — which the said Kennedy objected to, as not in conformity with the requisites of the law; but the Court overruled the objection, and admitted the demand and notice, as proper.
    The case was taken by Kennedy, by certiorari, into the Circuit' Court, where the proceedings of the justice, were affirmed, and judgment rendered for the plaintiff below.'
    Kennedy thereupon took a writ of error, to this Court.

      Stewart and Thornton, for plaintiff in error.
    Gordon, contra.
   HOPKINS, J.

— The only question, which it is necessary to determine in this case, is, whether the demand and notice required by the statute, and which was given in the name of Sanford, for whose use Hitchcock sued out the precept for an unlawful de-tainer against the plaintiff in error, was evidence upon the trial by the jury'? it was admitted as testimony against the objection of Kennedy.

The demand of the delivery of possession, must be made by the person, his agent, or attorney,- entitled to the writ of unlawful detainer, before it issues, and that it was so made, must be proved upon the trial. In this case, the demand was made by Sanford, in his own name, and not as the agent or attorney of Hitchcock. The evidence of the demand ought to have been rejected by the justice of the peace, and the Circuit Court erred in affirming his judgment

Let the judgment be reversed.

HITCHCOCK, C. J. — Not sitting.

       aosfiLif: 011A- ^


text:
    GAYLE VS RANDLE.

      As to pleas in short.

    1. Pleas, filed in a case, in short, by consent, must be such as contain substance — -form only, being waived by such mode of pleading.
    2. A plea in debt iri an action, against a co-obligor of a bond, (though in short by consent,) that the holder was requested to sue the principal in time — should state that the debt was lost by the failure, and that the notice was in writing.
    This was an action of debt, by Randle against Gayle, in Dallas County Court, upon a note under seal, signed by Stephen Miller, Matt. Gayle, and James Goodwin. The pleas were entered as follow—
    “ The defendant pleads — first, payment. Secondly, that he was only security, and requested suit brought against Miller, principal, whe has since become insolvent, and absconded. Taken in short.”
    To the second plea there was a demurrer, which was sustained, and judgment given for the plaintiff; from which he took a writ of error.
    Clark, for plaintiff in error.

      Philips & Edwards, contra.
   PER CURIAM.

— The judgments in this cases must be affirmed. The demurrer to the second plea was properly sustained.

When special pleas are agreed to be taken in short, by consent of counsel, it can only be understood by the Court, that matters of formare waived, —they must contain substance, or that which, if admitted, will make out a case for the party pleading.

By reference to. the case in 1 Stewart, 11, relied on by the plaintiff in error, it will be seen, that the plea does not state facts sufficient, under that decision, to make out a defence. It does not state, that the means of recovering the debt, have been lost by the negligence of the plaintiff; neither do.es if state? that the notice was in writing.-


text:
    WILLIAMS AND HITCHCOCK VS TAYLOR.

      As to actions to recover the value of a slave, killed on board a boat, where hired.
    1. The strict rule now recognized in relation to the responsibility of carriers of goods, — does not apply to a conveyance of slaves.
    2. The owner of a steam-boat, who employs a slave thereon, is only liable to the owner of the slave, in the event of his being killed, for gross negligence.
    3. Where the owner of a slave, who hires him upon a steamboat, at the time clearly knows of defects existing in such boat, — he assumes the risk of such accidents and iujuries as may occur therefrom.
    4. Trustees, authorised to receive the profits of a steam-boat, on which a slave is hired, are not liable for injuries to such slave, while on such boat, — it not appearing that they had a right to the possession of the boat, at the time of the injury.

      5. Nor will the acts of one Trustee, without proof that they were authorised by the other, fix the liability of both in such a case.
    In this case, Henry W. Taylor, prosecuted an action of trespass on the case, in Mobile Circuit Court, against Nathaniel F. Williams and Henry Hitchcock, for the recovery of the value of a negro man, slave, who had been hired on board a steam-boat, of which the defendants were charged to be owners; and which slave had been killed, as was alleged, through the carelessness and mismanagement of the agents and servants of the defendants. And the defendants plead the general issue — upon which judgment was given upon a verdict, in favor of the plaintiff.

      ' On the trial, the plaintiff, in support of his action, proved, that the slave, to recover the value of whom, he commenced suit, was of his property, and had been hired by the plaintiff’s agent, to one George Davis, who had previously owned the steam-boat Little Erie; and that the said slave was employed on the said boat in the capacity of steward: that Williams, one of the defendants, on being informed of said hiring, assented to it: that Williams had hired the clerk, and hands on said boat, or directed them to be hired, but that he told the clerk, at the time, that they must look for pay, to the profits of the boat, and her earnings. It was further in proof, that said boat had been conveyed by said George Davis, to the defendants, as Trustees — so that they might receive the profits of said boat during a certain period, and then sell her, and apply the proceeds to the payment of several judgments and debts due by the said George Davis: that the deed of trust was upon record; and that after the trips of said boat, the books, accounts and monies, were handed over to said Williams. It was proved, that the slave was killed while the boat was ascending the river, after the making of the deed of trust — as supposed, by slipping and falling into the pit of the fly wheel of the boat, as she was running, and as he was passing. The plaintiff relied upon the fact, that the fly wheel was not sufficiently protected by strips or slats nailed across posts, or uprights in the frame, oh each side of the fly wheel — the posts being there, but the slats being off. Several captains and pilots testified, that it was customary to have these slats — and that it was very unusual to run a boat without them — it being dangerous. It was also in proof, that the boat was in the same condition when the slave was hired, as when killed.
    Upon these facts, — the Court charged the jury, that if they believed there was negligence in the defendants, in running the boat, without slats; and that by reason thereof, the said slave was killed: and if the defendants caused the boat to be run, and hired hands for her — receiving the proceeds — that they assented to the hiring of the said slave, — then the defendants were liable, although they were but trustees.
    The Court further charged, — that the owner of the slave was not bound to enquire into the situation pf the boat at the time he hired the slave; and if the boat was wholly unsafe, by reason that the fly wheel' was not protected, and that the boat was thus used,. ■ — then there was such negligence as would make the defendants liable.
    The Court was asked to instruct the jury, that negligence alone, was not sufficient to charge the defendants — that it should also appear that there was no negligence on the part of the slave: that there was a distinction between slaves, and other property — the law requiring slaves to take reasonable care of themselves.
    Also*. that if the slave was hired to Davis, the owner of the boat, and was employed under a contract with him, he not being agent of the defendants —the plaintiff should look to him.
    Also, that if when the slave was hired, the boat was in the condition, as when he was killed, and the situation of the boat was known, — the risk of' accident was assumed by the plaintiff. All which instructions the Court declined to give.
    Bill of exceptions, and writ of error.

      Stewart for plaintiffs in error.

      Gordon and Goldlhwaite, contra.
   HOPKINS, J.

— This is an action of trespass or the case. It was brought by Taylor, in the Circuit Court of Mobile county, against the plaintiffs in error, as the owners of a steam-boat.

The object of the action was to recover the value of a negro man that belonged to Taylor, who, as it is stated in the declaration, had been employed as a steward on the boat, and during such employment was killed, from the carelessness of the agents and servants of the owners.

Upon the trial of the cause, a bill of exceptions was taken by the defendants to the action, from; which it appears, that the slave was killed, as it was supposed, by slipping and falling into the pit of the fly wheel of the boat; and the negligence relied on, to make the defendants liable was, that the fly wheel was not guarded by strips, nailed across posts in the frame, on each side of the fly wheel — the posts having been in the frame, without any strips.

From the bill of exceptions, it appears also, that the boat was in the same condition, when the employment of the slave' commenced, as it was when he was killed, and that captains and pilots of steamboats deposed, it was customary to have strips; that they never knew a boat without them, and it was unsafe to run one without them.

From the instructions which the Court gave to the jury, we understand, it was the opinion of the Court, that any degree of negligence makes owners of boats liable for the injuries suffered by their agents and servants, while they are engaged in the business they had undertaken to do on a boat.

It was anciently held, that a carrier of goods, for hire, was responsible only for ordinary neglect. — t This rule, so far as it related to the conveyance of mere goods, ivas changed long since; but the strict rule upon the subject, which is now recognized, does not apply to the conveyance of slaves as passengers, by a carrier for hire; as the, Supreme Court of the United States decided, in the case of Boyce against Anderson. For such passengers, a carrier is liable only for ordinary neglect. In that case, it was determined also, that if claves paid no hire for their passage, the carrier would be responsible only in a case of gross neglect. A less degree of negligence makes a carrier liable to a passenger, who has, or is bound to pay his hire, than is required to make him responsible to one, from whom he is to receive no reward. It must require as great a degree of negligence to make an owner of a boat liable to an agent, or a servant, engaged in business on his boat, as it would to give a right of aption against him, to a passeuger, who was bound to pay no reward for his passage. Neither such a passenger, nor a servant, who is hired to do business on a boat, pays any reward for his passage. By the engagement of such a servant, were he a freeman, he would incur an,obligation to go on the boat, and acquire a right to be there; aud for his services while there, would be entitled to corn* pensation; but for his passage he would pay noth* ing.

In this view of the case, if the servant be a slave, his owner would be entitled to the compensation for his services, and the owner of the boat would be lia-> ble to the master only, for the degree of negligence, which would make him responsible to the servant, if he had been a free man, and had suffered an injury, which did not cause his death. In such a case, a carrier is liable only for gross negligence, which is defined to be the want of slight diligence, or a failure in the lowest degree of prudence, or an omission to exercise the diligence, which men, habitually careless, or of little prudence, generally take in their own concerns

The instruction of the Court to the jury, that if they believed there had been negligence, without specifying the degree of it, the defendants to the action were liable, was erroneous. But we do not think the rule, which regulates the liability of a carrier to passengers, who pay no reward for their passage, is applicable to the case of an agent, or servant, who is a free man, and knows when he enters into an engagement with a carrier, that the seat of the coach, which he agrees to drive, is without a railing, or that the coach itself is unfit to be used; or, that there is a defect in a boat, which must be a source of danger to him, while he shall pursue the business, that he undertakes to do. The agent, or servant, takes upon himself the risk of accidents and injuries from causes, of which he has knowledge. He acquires a right by his contract, to go on the boat, and to compensation for the business he may do there, and knows when he enters into his engagement, that he will be exposed to danger while he shall be employed in earning his wages. The carrier exposes himself to the peril for the purpose of earning freight, and the prospect of gain induces the agents and servants to incur the same hazard. Bui the only object of a passenger of any description, is, to be carried safely. If the servant be a slave, and the master, or his agent, who made the engagement for the servant, knew, when he entered into it, of the defects in the boat, the same' rule is applicable, which would apply, were the servant a free man, and had made the contract himself.But as it does not clearly appear, from the record, that Taylor, or his agent, who hired the slave on the boat,knew of the defect in it, when the contract was made, the judgment would not be reversed, for the refusal of the Court to give the instructions, which were asked upon this point.

From the bill of exceptions, it appears, that the boat had been conveyed to Williams and Hitchcock, as trustees; they had power to receive the profits for a limited time, and at the expiration of the period, to sell the boat, and apply the proceeds of the trust fund to the payment of several debts due from one George Davis, who created the trust; was the former owner of the boat, and to whom the slave was hired. But it does not appear, whether the trustees had a right to the possession of the boat before the day when they would be authorised to sell, and when the slave was killed. If, at the time of the death of the negro, they had no right to the possession of the boat, they are not liable in any event. The fact stated in the bill of exceptions, that after Davis hired the slave, Williams assented to it,, lias no effect if the trusteees were not entitled to the possession of the boat; he assented to what he had no power to prevent. If Williams hired other hands, when he was not entitled to the control of the boat, the fact does' not affect a case, which has no relation to the hands he did hire. In no event can the acts of Williams affect Hitchcock, without proof that the latter au-thorised them. Trustees have all equal power, and ought to unite in their acts. They can not act separately, so as to charge each other

The last point which we have noticed, was argued and has been examined, because the case must bere-manded; but it need not arise on a future trial, if it Should be proved, that Taylor, or Ms agent, knew of the defect in the boat, when the slave was hired to Davis.

Let the judgment be reversed, and the cause remanded.

HITCHCOCK, C. J. — Not sitting,

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    WILKINS AND HALL VS WILKINS.

      As to parties to a Chancery cause.

      As to a decree upon, a judgment, pro confesso, without proof.

    1. A decree in Chancery will not be reversed, because the heirs of a mortgagor do not appear to be made parties, — they not seeming, from the record, to be material parties.
    2. A decree can not be rendered in Chancery upon a bill to foreclose a mortgage, ordering a sale, without production of the mortgage deed, and proof of its execution.
    3. A judgment pro confesso, in a Chancery cause, will not au-thorise a decree, without proof.
    4. The personal representative of a mortgagor, is an essential party, in a suit to foreclose — but if he appears, (without formal order,) and asks and obtains time to answer, he is estop-ped, in error, from alleging the absence of proceedings to make him a party.

      This was a bill in Chancery in Baldwin Circuit Court; and it was filed by William Wilkins against Benjamin S. Bromley, for the purpose of foreclosing a mortgage. The bill recited the mortgage, and prayed a sale of the mortgaged premises for the satisfaction of the plaintiffs’ claim. Among other allegations, the bill also averred, that one Charles Hall, had purchased the premises mortgaged, from the mortgagor, with notice; and made him also a defendant.
    After the issuance of subpoena, the following entry was found in the record, to wit—
    “April term, 1833 — Order of Court; death of Bromley suggested — -sci. fa. to issue to his representatives.”
    The record showed then, a scire facias to the representative, James Wilkins, returned executed.
    Then followed the subjoined entries, to wit—
    “From the Docket of November term, 1833 — ■ William Wilkins vs. James Wilkins, administrator of B. S. Bromley, deseased. Defendant asks and obtains leave until the next term, to file his answer.”

      “ From the Docket of April term, 1834. Same vs Same. Order of this term. • Bill taken as confessed, and referred to Clerk as Master, to make calculation of amount due.”
    Then, instanter, followed a report, upon which the Chancellor rendered a final decree, ordering a sale, &e.
    All which was assigned for error here.
   COLLIER, J.

— The defendant in error exhibited his bill on the equity side of the Circuit Court of Baldwin, against the plaintiff, Charles Hall, and the intestate, B. S. Bromley, for the foreclosure of a mortgage, executed by the intestate, in January, 1831, of a saw-mill, and its appurtenances, situate in that county, for the security of a sum of money, due from the mortgagor to the defendant, as well as to secure the payment of the debts, owing by a late co-partnership, existing between the intestate and the defendant, which, on dissolution, the intestate had stipulated to pay. Pending the suit in the Circuit Court, the mortgagor died; whereupon, the following entry was made on the Chancery docket—

“ Death of Bromley suggested, and sci, fa. to his representatives.”

The record then shews a scire facias directed to the coroner of Baldwin county, on which the following return was made—

“ Received 28th October, 1833. Executed 28th October, 1833.”

(Signed) “ C. M. Godbold, coroner.”

The record then sets out twó memorandas, taken from the Chancery docket, the first made at the Fall term of eighteen hundred and thirty-three, and the latter at the Spring term of eighteen hundred and thirty-four, which are as follow—

u William Wilkins, vs Jas. Wilkins, adm’r. of B. S. Bromley, dec’d.”

„ Defendant asks and obtains leave until next term, to file his answer.

Barrie vs Same.

Bill taken as confessed, and referred to Clerk and Master, to make calculation of amount due.”

Whereupon the Clerk and Master'forthwith made a report of the amount due upon the mortgage; and the judge immediately rendered his deoree confirming the report, and 'directing the mortgaged premises to be sold to pay the sum due, and the plaintiffs jointly to pay the costs.

From this decree, a writ of error is prosecuted by the plaintiffs, who here assign for error—

First — The omission to make the heirs at law of Bromley, parties.

Second — *Thé rendition, of a decree against Hall.

Third — That James Wilkins was not before the Court for the purpose of a decree; together with several other matters, which do not appear to require a particular notice.

First — In regard to the objection of a neglect, to make the heirs at law of Bromley parties, wc think ■it not avaiiable ; there is nothing in the record to shew them to be material parties in interest; and the intestate had, as alleged in the bill, parted with all his interest in the mortgaged property to Hall. If this were controverted, or a purchase disavowed, by Hall, it would be necessary to make them parties. But situated as the case was in the Circuit Court, there was nothing, against which the heirs of Bromley could legitimately defend, and it would have been improper to have brought them before the Court,

In the case of the Mechanics Bank of Alexandria vs Seton — it was decided that, although an objection u,|-or want 0f pr0per parties, might be taken at the hearing, yet the objection ought not to prevail upon an appeal; except in very strong cases, and when the Court perceives' that a necessary and indispensable party is wanting. No one need be made a party, against whom the plaintiff can have no decree. In the present case, no objection was made in the Circuit Court, to the want of proper parties ; nor could a decree be made against the heirs of Bromley, if it be true that the intestate, in his life-time, conveyed to Hall, his interest in the premises.

Second — The record does not disclose any proof ill the cause, nor does it appear from the decree itself, that any proof was before the Court, to authorise its rendition. The failure to produce and prove the mortgage, may have been occasioned by the belief, that the parties being in default, its non-production was dispensed with, by a decree pro confesso. If such an idea influenced the proceedings below, it was certainly not well founded. It is declared by statute, that, “Before a decree is pronounced on a bill, taken pro coofesso, the Court shall be satisfied by sufficient evidence, of the justice of the complain-* ant’s claim or demand.”'

The statute does not prescribe the grade of evidence, but it must certainly be such as will guide and direct the mind to a conclusion, or else it cannot satisfy it that the claim or demand is just. Perhaps a less amount of evidence should be deemed sufficient in such cases, than where a defendant appears and defends the suit. Such was the opinion of the Court of Appeals of Virginia, in the case of Morrison vs Campbell, et al. But, neither reasoii or authority would warrant a decree in such case, with any proof.

The evidence read in a cause in Chancery, becomes matter of record, and when the case is removed for revision to a higher Court, makes part of it and nothing can be intended to have been proved, which the record does not discover. It is important to the decree, that the record should shew, affirmatively, enough to sustain- it. To do this, the mortgage should have been produced and proved, and its non-production is error — the more especially, as- it is not exhibited with the bill, but merely recited in general terms.

Third — The personal representative of Bromley',, is certainly an essential party, as representing the personal, estate of the intestate. It would be his duty to prevent a recovery for a larger sum than was due upon the mortgage, in as much, as" the- assets in his hands, would be liable to pay so much, as might be unsatisfied by a sale of the mortgaged property. Besides, if the purchase-by Hall was fair, as between the intestate and himself, the estate would be liable to reimburse to Hall the purchase money and costs', The administrator is certainly not made a party by any formal order, yet he comes in, as the record informs us, and asks and obtains time to file his answer. By this step, he has admitted himself in Court, and can not now be heard to allege, that he was not made a party.

We can not forbear the remark, that the record in this case, is extremely imperfect. Instead of furnishing full and complete entries, of the orders made by the Circuit Court, from time to time, during its pend-ency there, it contains mere abstracts, ox memorandas, from the Court docket, which were, doubtless, intended, and should have been entered formally in the minutes of the proceedings.

Our conclusion is. that the decree was unauthoris-ed by proof, appearing of record, and must be reversed. But as the defendant, in all probability, has a just right, which he can make appear, it is ordered and decreed, that his bill be dismissed without prejudice; and it is further ordered and decreed, that he pay the costs of this Court, and of the Circuit Court.

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