text:
    Valentine Pruit and John Martin vs. Squire Lowry.

      Error from Madison Circuit Court — Before tbe Hon. John White.
    Where A. sells property to. B. and B. sells to C. and the property is levied on and sold to D. under an execution subsisting against A. in a suit brought by C. to recover from D. — A. is not a competent witness for C. •
    A levy and sale underran execution by one constable for.another, which levy and sale are recognised and returned by the latter — not void on .tile ground of false return.
    This was trespass, in the Court below, against Pruit and Martin by Lowry, for forcibly taking a negro slave. On the plea of not'guilty and issue, there was verdict and judgment' for the plaintiff. In the trial of this cause the plaintiff produced in evidence a bill of sale from one Cottrell to Townsend for sundry negroes, including the one in question. In order to explain circumstances connected with the consideration between Cottrell and Townsend, the plaintiff Lowry produced~Cottrell as a witness. His competency wcs objected to by the defendants, on the ground of interest. The Court held Cottrell a competent witness. It appeared from the record, that Pruit claimed;] title to the slave under a sale ■ made by a constable, in pursusnce of an execution levied on her at the suit of Pruit. Pruit held several judgments against Cottrell.,v- The levy and"sale'had been made by one Milam, as Martin’s bailiff, and on this levy, under Pruit’s execution, Martin justified.^ The Court charged the jury, that if the defendants jelied ^ on .the judgments, executions levy and sale, and they believed the sale was made without the direction and cognizance of Martin, who made the return — the same being false — Pruit could neither take title, nor Martin justi-. fy- The Court further charged, that it was necessary that the return of salo should be in writing on, or attached to thG. execution. To these points, and to the admission of Cot-trell’s testimony, the defendants excepted.
    In the course of the trial the defendant’s counsel moved the Court to instruct the jury, that if they found out that Pruit had not made out a title under his purchase, yet, if they believed the sale from Cottrell to Townsend was fraudulent, as against Cottrell’s creditors, and particularly as to. Pruit, then they should find, that as no title passed from Townsend to Lowry, and he having failed to make out a title to the slave in question, the defendant was entitled to a verdict. The Court declined to give this charge, but instructed the jury, that however fraudulent the sale from Cottrell to Townsend may have been — if they believed the slave to have been in possession of the plaintiff at the time of levy, he was entitled to recover on that possession — that if they found that the judgments and executions, and the sale under them, vested no title in Pruit, and formed' no justification for Martin — then . it was not important for the-plaintiff to show a regular sale to himself, but sufficient to prove a possession of the property,. To all these positions of the Court, the defendant excepted,' and now assigned them as error.
    Hutchison, for Appellants.
    R. Cottrell was interested to support the title, if any, he passed to Townsend, under whom Lowry claimed. The Court below supposed he was no more interested than if this had been a controversy to try the right betwixt Pruit as the crédi-to).’, of Cottrell, and purchaser' under his judgments, against him on the one hand, and Lowry the claimant under his ven-dee-7-rwhen if Pruit had failed, the slave could not have been sold toward satisfaction of his executions, and his judgments would: have remained unpaid — and where if'he had succeeded, Lowry would have went on the supposed warranty of Townsend, and he on that of Cottrell. Then indeed, trell would have stood equipoised in interest. Not so here : the slave was sold, and the product, pro tanto, satisfied Pruit. Whether he succeeded or not in this case, the credit returned on the executions would remain. Cottrell’s interest, therefore was solely in favor of the title he passed to Townsend ; and the interest though not immediate, was certain. But thé policy of law did not permit him either to support or impeach the sale he had made. In the transfer of a note by delivery, there is an implied warranty that it is genuine, and the trans-ferror cannot testify to sustain its validity, nor to impugn it— 15 John. 240 — 16 John. 501. So an indorser — 3 John. 185— 2 John. 165 — 14 John. 270. If indeed, a payee and indor-sor be called to testify certainly and Only against his own direct and immediate interest, and do not himself object, he maybe sworn : but this is not calling him to validate the instrument he endorsed — l.Stew. 199. A vendor or alienor of realty may not testify in favor of the title he communicated— 2 John. 394 — 6 John. 523. Where the bailee of a chattel sues a strangér, the bailor cannot testify as to his general property — Chesleyrs. St. Clair, Adams*s Rep. ¿92. Becausé too, in the sale of a chattel or slave, there is an actual or implied warranty of title, the vendor may not give evidence to sustain that title — 6 John. 7 — 2 Har. & G. 176 — 7 JIar. & J. 458 — 5 Am. D. 250. Nor can the declarations of a vendor made after his sale, be proved, to show the sale a sham; 1 Stew. 198. Where, indeed, the vendor sold to both plaintiff and defendant, being biased equally both ways, he was admitted — 1 Sleio. 419. Cottrell’s evidence was plainly material, and by being illegally received, the judgment must be reversed.
    The Court erred in instructing the jury that if they believed the sale of the slave was made by Melam, without the immediate direction and sanction of Martin, the return of sale on the execution vras false, by being made by Martin, and Pruit acquired no title, and Martin could not justify; Me-}am was an officer of equal grade ; the executions were delivered to him with Martin’s request that he should make the sale — he received the executions — caused the sale to be made before a large crowd at the court house, and there is no circumstance of unfairness. Martin by making the return re-cognised his act. If Melam acted as bailiff, it was well— 1 Salk. 285 — 2 id. 589 — 2 T. R. 156, 157 — 7 Comyris Dig. 287— Hunt v. Burrell, 15 John. 137. Being of equal grade, the special property of Martin passed to him, and his sale passed the ownership to the purchaser, who cannot be affected by the irregularity of a return subsequent to his purchase, if the return were defective : it was the sale that passed the right — 10 John. 381 — 13 John. 97 — 5 Am. D. 262.
    Then as to the refusal of the court to allow Lowry’s title to be questioned, and the instructions on that score, the principles applied contravene the plainest dictates of reason and justice. In trespass, indeed, a plaintiff may rely on possession or constructive possession, only"as against a wrong doer, having no title. That action is based on .the possession, whilst trover rests on the ownership. But when he, as here, evolves all his evidence of title, and relies on it, and not on possession merely, it is surely with the defendant to interrogate the witnesses, to object to the fraud manifested, and to give further proof on that score. The plaintiff thus puts himself in the predicament of a physician, who is sued for the in-. jury he has inflicted on his patient, who shows his diploma, and attempts to prove his professional skill: the other party may show he is an educated dancing master! — 5 Day, 260. Where a plaintiff does not attempt himself to show title, a defendant, who shows none himself, cannot introduce the title of his adversary for criticism and reprehension — because it is not put in issue, and because the plaintiff would thus be unprepared to meet the objections : but when he himself introduces his evidences of ownership, he must abide the consequence*.

      Hopkins, contra.

    — 14 John. 407, 415 — 10 John. 185 — 13 John. 222 — 13 John. 141, 256 — Alabama Rep. 400.
   By Mr. Justice Thornton :

This was an action of trespass, brought by the defendant in error, Lowry, (who was a purchaser from one Townsend, who held by bill of sale from Cottrell,) against the plaintiffs in error, for forcibly taking a negro from the possession of Lowry.

The first error assigned, is the admission of Cottrell to testify in said cause, who was introduced by the plaintiff below. The witness was objected to on the ground of incompetency ; and the relation in which he stood to the parties was, (as was made to appear to the Court) as vendor of the negro to said Townsend, who sold to Lowry — and as defendant in sundry executions in favor ofPruit, by virtue of which, the defendant Martin had levied on the negro in question, and sold to Pruit. As a general proposition, N it must be admitted, that a vendor of property is directly interested in maintaining the title of such property, when it is brought into contest by action against his vendee : his liability over in case of a recovery, is a direct consequence. In a ease however, where the consequences would be the same to him, let the contest be decided in either way — as where he had .conveyed the same subject to both litigants ; an equipoise of interest would render him competent. So in the ordinary case of .a trial of the right of property, under our statute, where the property is levied on as his own after a sale of it, and his vendee is the claimant, here it might reasonably be supposed that he would be interested to subject the property of another to the payment of his debt, and so interested against the claimant, but his liability in such event to his vendee, the claimant, would bring about an equilibrium of interest, and leave him a competent witness. But here there was, as I conceive, an interest inclining the witness to the side of the plaintiff Lowry, and no conceivable interest to countervail the bias — for the execution could not be levied again on the same negro, and the amount produced by the sale was a credit upon the execution to which Cottrell would be entitled, no matter how the title might be determined. For this cause alone the judgment would be reversed, and the cause remanded. It is, however,' deemed proper to decide now upon the point which is brought to view by the other assignments of error, as it constituted a material portion of the cause on the former trial, and will inevitably arise in its further progress below. The bill of exceptions discloses that the negro sued for, was taken by defendant Martin, by virtue of executions in his hands as constable, issued upon judgments against the witness Cot-trell — and that the sale of the negro was made, as the return of the executions shows, by the said Martin. Proof was adduced by the plaintiff to contradict this return in the last particular, showing that the actual exhibition of the negro at the time of sale was by one Milam, and that the crying off, as it is termed, was done by one Caldwell an auctioneer, who was procured by the said Milam — but that Milam acted in the part he bore in said sale, for defendant Martin, and under his sanctioh. All the instructions given by, and the refusal of that asked for, of the. court, evidently proceeded from the position of law assumed to be true — that the sale under the executions, not being made under the immediate direction and cognizance of Martin, but according to the manner disclosed in the testimony above recited, was void, and that neither the justification of the officer Martin, nor the title of Pruit derived from the sale so made, could be maintained. We consider that the sale so conducted was not void, and that the jury should have been so charged. As to any other points raised in the argument from the view above taken, it is unnecessary 10 respond.

Let the judgment be reversed, and the cause remanded.

The Chief Justice, Lipscomb, dissented as to the competency of Cottrell.


source: Caselaw Access Project

author: By 5ír. Justice Sapfold.

license: Public Domain

text:
    Alexander Sommerville vs. Joseph Merrill.

      Errar from Franklin Circuit Court — Before the Hon. Sion L. Perry.
    On demurrer to a plea, the court will look first to the declaration, and give judgment on its sufficiency before noticing the .defects of the plea. In a declaration against a common carrier for negligence, it is essential to aver that defendant accepted, or undertook to carry the goods.
    This was an action on the case, to recover damages of the defendant as a common carrier, for not conveying safely to Orleans a quantity of cotton which had been entrusted to him. It was charged, that in consequence of the defendant’s negligence, a portion of the cotton was damaged, whereby the injury had accrued to the plaintiff.
    The defendant pleaded specially, that previous to the institution of the plaintiff’s action, he, the defendant, had brought suit against the now plaintiff, to recover the freight for con-, veying the very cotton to Orleans, which was now the subject of the plaintiff’s claim — that in that suit (then settled and determined and remaining unreversed) the plaintiff pleaded in defence thereto, the same negligence of the defendant, and the same damage to his cotton,' in bar to the actioñ ; but that his defence after being so adjudicated, was considered insufficient, and that the now defendant obtained judgment for his freight. To this plea the plaintiff demurred.
    In the record it appears (presumed by misapplication) that the consideration of the court below was on the “ defendant’s demurrer to the plaintiff’s declaration,” and judgment was for defendant. The plaintiff now here assigns for error, that the judgment of the eourt'below was erroneous.

      ORMOND, and Hopkins, for Plaintiff.
   By 5ír. Justice Sapfold.

This was an action of trespass on the case, brought by the present plaintiff against the defendant as a common carrier1. To the declaration was filed a special plea in bar. To this the plaintiff demurred, and on the hearing and consideration of the demurrer, the court rendered judgment for the defendant. This judgment is the matter assigned as erroneous. It is' proper to premise, that according to the transcript of the record, the names of the parties to the demurrer have been misapplied. 'It reads “that the defendant’s demurrer to the plaintiff’s declaration being heard by the court, &c. it is considered the declaration is insufficient,” &c. In as much as the legal effect of the plaintiff’s demurrer is to subject his own declaration, as well as the plea to the scrutiny of the court — and as, if the former is found insufficient, the court must visit the demurrer upon it, this apparent mistake in the record may be disregarded, and the case may be examined as though the question had been formally-presented. The effect of the issue is to test, first, the sufficiency of the declaration, and if sustained, then the quality of the plea.

The case having been submitted without argument, or any suggestion of the points mooted below, or those mainly relied on here, I propose to investigate only so much of the case as is thought necessary to a decision of the question pre-. sented. This relates exclusively to the sufficiency of the declaration. The declaration is unusually brief — which however is no objection if it be found to contain in substance all the material allegations. It begins by a recital of the defendant’s being and having been a common carrier of goods, &c. ' ■ and of the plaintiff having caused to be delivered to defendant thirty-five bales cotton, of great value, to wit, -of the value of one thousand dollars, to be safely and securely carried by him from the one place mentioned to the other — -and at the latter to be safely and securely delivered for a reasonable 'reward, •&c. then without any further description of the liability or nature of the bailment, whether’ the carrying contemplated was to have been by land or water,- or whether there was any exception to the defendant’s absolute responsibility for tlje success of the enterprise (such as the dangers of the river) and without any averment of the defendant’s having accepted or received the cotton — or of his having agreed or undertaken safely to carry it : the declaration proceeds to aver a breach or non-performance of the duty in the usual form. It concludes with an averment that the defendant so carelessly and negligently conducted himself in the premises, that the thirty-five bales of cotton were wet and damaged, and greatly injured, to the damage of the plaintiff two hundred dollars. The question may be worthy of consideration, whether or not the manner or kind of transportation intended should not be explained or defined by the declaration — especially if understood to have been done by means of any water craft. If there bé a difference in the extent of the general liability, or in the exceptions to it, this consideration might suggest the necessity of defining the mode or manner of the intrusted conveyance. Such is believed to be the current practice— at least in reference to water transportation, whether on the high seas or navigable rivers. The omission in the declaration to aver that the defendant accepted, received, or undertook to carry the cotton, is believed to be the omission of a substantial allegation required by the precedents, and the general requisitions of the law regulating the remedy against carriers of various descriptions.

For these insufficiencies, chiéfly-the latter, we think the judgment below must be affirmed.


author: By Mr. Justice Saffold :

text:
    James Lathan vs. John Berry.

      Error from Madison Circuit Court — Before the Hon. John M. Taylor.
    In slander, the defendant, under plea of justification, will not Be permitted to vary the issue tendered.
    Where one lias been guilty of uttering slanderous words of another, he will not be allowed in an action against him, to give evidence of his subsequent qualification of the words — thus creating evidence for his defence.
    This was an action of slander.
    The declaration charged the defendant in the court below,-Lathan, with having accused the plaintiff, Berry, of swear--ing to a lie, in reference to a suit in which Berry had been a witness. The pleas were justification, and not guilty ; and there was a verdict for the plaintiff on both issues. It ap~ peared from the record and the bill of exceptions sealed in the cause, that some time previous to the commission of the wrong by Lathan, there was a suit existing between the said Lathan and the State of Alabama, for a failure of the former to return a recognizance which he had taken as a justice of the peace. In this suit Berry was a witness. The justification set up in the present action was, that Berry in the before mentioned suit, had sworn that the recognizance had been executed at the house of Lathan. Lathan’s witnesses proved it to have been taken at the house of one Barbary Lathan, two and a half miles from the said Lathan’s residence. During the trial of the present suit, the counsel for the defendant asked one of the witnesses, who had testified to the charge of perjury, whether the defendant Lathan had not, a few days after he had made the charge, and before this ■•action was instituted, qualified it by stating to the witness, that all he meant to impute to Berry was his evidence in relation to the place of executing' the recognizance. On this question being objected to, the court determined it to be improper, and would not suffer the witness to answer it.. The defendant excepted to this decision of the court, and now have assigned the same for error.
    S. Parsons, for Plaintiff in error,—
    Assumed that the words here spoken as qualified by La-than, did not form the ground of an action prima,'facie — and cited 20 John. 349.
    The injury in actions of slander arises from the danger of criminal prosecutions; and a mere injury to feelings or honor — no cause of action.
    And the rule is, that if a party uses words in themselves actionable, but qualifies them, it is no slander. The qualification lessens the injury.
    So in this case — witness might have proved the spirit with which the words were spoken, and thus divested them of injury. A voluntary retraxit by a party, showshe had no malice, which is the ground of the wrong, and the court should have permitted the defendant to show this in mitigation of damages.
    Peck, contra.

    In actions of slander, no matters can be given in evidence to mitigate damages, but
    First — General bad character — 6 Mass. R. 514 — 1 Nott & McCord, 268.
    Second — Grounds of suspicion, to be shown from facts and circumstances — and these grounds .of suspicion must not consist in vague conjecture, but in such circumstances as may influence a man of sound mind — 3 Conn. R. 463 — • Siarlde on Slander, 409.
    Third — Matters which diminish the' malicious intentions — 3-Conn. R« 466.

      None of these facts can be, however, given’ in proof, where the party.relies on the plea of justification.
    A retraxit cannot make amends for the injury to the plaintiff, when by plea of justification, defendant has spread upon the record the slander he has previously uttered.
    The plea of justification itself contradicts the idea of the charge being made innocently ; and the rule is,- that no man is permitted to make evidence for himself. The plea ofgen-eral issue, combinfed wiih.that of justification, will not aid the defendant. The pleas are repugnant. Under our statute they cannot be pleaded — 1 Pick. 1,
    Parsohs, in reply.
    No state but Massachusetts, if I recollect right, has decided but that these two pleas may be used. The law permits this for purposes of justice, and our statute is conclusive, because it is intended to give a party as many pleas as his defence requires. The' plea of justification, however, cannot preclude our defence, in as much as it does not aver the truth of the words spoken — only explains them.
    A voluntary retraxit by a party, shows that he has not malice, which of itself is sufficient to admit the evidence of it to a jury. '
    Malice is the ingredient of this action ; and there is a difference between making evidence, and repairing an injury done.
   By Mr. Justice Saffold :

Berry, the defendant in error, having sued Lathan for slanderous words, obtained a judgment ¿gainst him for'five hundred dollars, in the Circuit Court of Madison county ; to revise which, Lathan prosecuted this Writ of error. The pleas on which Lathan relied,' were justification, and not guilty. The only matter excepted to, is the decision of the court., excluding .frpm the jury evidence offered by Lathan, to prove that a few days after using the slanderous word’s, he explained to the person before whom the same were expressed, the nature of the charge he had intended to impute to Berry. The substance of the evidence was, that the plaintiff below, had proved by several witnesses, that the defendant, on or about the day mentioned in the declaration, speaking of a suit in which the false evidence was charged to have been given, (and which related Jo the failure of Lathan, as a justice of the peace, to return a recognizance,) said, the plaintiff had sworn to a lie against him, in saying that the recognizance was taken at the house of James Lathan, when in fact it was taken at the house of Barbary Lathan, two and a half miles from James Lathan’s residence. The plaintiff also proved by another witness, Ball, that the defendant told him, that plaintiff Berry had sworn to a lie on the same trial, against him, without specifying the circumstances.

Lathan’s counsel then proposed to interrogate Ball to the fact, whether or not, a few days afterwards, and before the institution of the suit, Lathan had explained the charge, and informed him in what the lio consisted, as before charged. This evidence being objected to, was excluded by the court. The exclusion of this testimony is the cause here assigned for error. Some of the principles embraced by the argument, are conceived not to be necessarily involved in the question presented for the consideration of the court. Whether in an action of slander, where the defendant pursuant to the statute, pleads justification, and also thé general issue— any facts are admitted of record, so as to vary the proofs that would otherwise be necessary or admissible on either side, (even if it is to be viewed as res integra, in this court,) is considered immaterial in the determination of this cause. It was the defendant below who moved the introduction of this testimony, which consisted of his own declarations or assertions, made on a day subsequent to the utterance of those for which he was charged to answer, and of course in a different conversation. If it could be conceded that this plea of justi-ficatio'n, in conjunction with that of not guilty, (Superseded tlie necessity of proof on the part of the plaintiff, of the truth of the allegations, accoi-ding to the Massachusetts decisions; or if the contrary principle, of more' general prevalence, be reecognized, yet the rule is uniform that an offending party can. not, after the commission of the offence, purge it by his own declarations, and thus manufacture evidence for himself. Nor can a defendant, who has pleaded in justification, and therein varied the state of the facts from those alleged (as is here suggested to be the case) be allowed any greater privilege in this respect. In this case, however, the words attempted to be justified, are substantially the same with those charged, as they must necessarily have been. A defendant is not permitted by such plea to vary the issue— ^ie lmlst confess the words as laid. One against whom slander has at any time been uttered, has a right to sue for the same, and to found his action on the most offensive words. For these alone, with such qualification, explanation, &c. as then accompany them, within the hearing of the same persons, the defendant is responsible. Any thing said by him at a different time or place, either of denial, mitigation, br aggravation, is not evidence for any purpose, except so far as the plaintiff may choose to- use it as such. The right contended for on the part of the plaintiff in error, tO' mitigate the damages, by introducing evidence of his subsequent explanatory conversation, is believed to derive no sanction from any authority referred to in argument. The case of Buford McLung, cited in opposition to the right, recognises the

principle of many other cases — that facts and .circumstances, showing a ground of suspicibn, though not amounting to actual proof of guilt, may be available in mitigation of damages. The evidence in question related to the bad character of the plaintiff. The decision in Baily vs. Hyde, maintains the same principle. But it is argued that this case may be assimilated to an action of trespass for taking and carrying away the plaintiff’s goods, and that there the defendant would be permitted to prove a subsequent return of the article in mitigation. If the principle be admitted, the analogy between the cases is conceived tobe very slight. In the one case, the injury is to property, and consists not only in the taking and carrying away, but also in depriving the owner of the use and value of it, if not returned. If returned in a short time, in-the same or nearly the same condition, the injury is rather nominal than real, and the damages are obviously mitigated, so as to admit of a satisfactory computation of the amount. Not so with respect to this subsequent and explanatory conversation. The defendant below may have uttered the slanderous words in the hearing of many, yet proof of it by one, or a few, would be sufficient to sustain the. plaintiff’s action. If one of these same witnesses who heard the imputation, af-terwards received an explanation, mitigating the nature of the chai-ge, it does not follow that all of them have; or that the same witness would communicate the explanation to all to whom he or others may have disclosed the matter. To render the case supposed, parrallel to this, it would appear necessary to maintain the right of a defendant in trespass, to introduce evidence of his own declarations subsequently made, to establish the authority for, or motive of his action, and thereby show that the plaintiff’s injury was less than it would otherwise appear to be.

We are of opinion that the judgment must be affirmed.

       Stark. on Sl. 339.

      1 Noot & M'Cord, 268.

      3 Con. Rep. 463.


author: By Mr. Justice Tíiorntox :

text:
    Joseph Reeves vs. William B. Wallace.

      'Error from Lauderdale County Court.

    Where A. in consideration of work and labor to be performed by B. covenants to convey land to B, aud B. ascertaining A. has no title, abandons the contract before its completion; he cannot in the common count on quant, val. recover for the work actually performed.
    Trespass on the case for work and labor.
    The plaintiff brought his action to recover of the defendant, for clearing and grubbing between ten and twenty acres of land. It came up in proof that there was a written agreement between the parties, as to clearing the land now pin question ; and on its production, it appeared, that in consideration of certain clearing, fencing, ¿be. to be performed by the plaintiff, the defendant had undertaken to convey a certain portion of land therein mentioned, to the plaintiff. Plaintiff offered in excuse for abandonment of this contract, to prove that the defendant had no title to the land which he had undertaken to convey : but the court held that this action did not lie, there being a written agreement, to which the plaintiff should resort. The plaintiff excepted to the opinion of the court, and assigns the same for error here.
    Wm. B. Martin, for Plaintiff-
    Cited 1 Comyn, 249 — 1 Conn. It. 175 — 1 Caine1 s R. 47— 19 John. 205 — 4 Cranch, 421.
    Hopkins, contra.

    — 4 Cranch, 239 — 240—19 John. 205— 18 John. 451 — 1 Chitty, 98 — 1 Bibb, 595 — 2 Mum, 344 — 7 John. 132 — 12 John. 276 — 13 John. 94 — 1 John. 326.
   By Mr. Justice Tíiorntox :

This was an action of assumpsit, with iLe common counts, for work and labor done, &c. It ¡rspeared in evidence that there was a covenant entered into between the plaintiff and defendant, in which the latter co/cnauted to convey to the former by general warranty deed, a certain quantity ef laud therein mentioned, in consideration of certain clearing and fencing of other lands belay; first done and performed. This work and labor was that for which ike plaintiff now sought to recover remuneration. Et dees not appear that iko defendant was invested with the title to the land which I:o had covenanted at a future time to convoy to'• the plaintiff. The plaintiff performed a portion of the work, and for that per- ■ tion now sought to recover in the present action. The court instructed the jury, that this suit would not lie if they believed the work and labor now sued on, was the same mentioned in the covenant, and commenced under it.

The question of law prelected by the assignment cf error, is whether, when a covenant is entered into between parties, whereby one covenants that he will do a certain act at a future time, in consideration of the performance by another of certain other act, as work and labor, and the act first to be performed is entered into and abandoned, without any new „ contract, or fraud alleged and proved in the covenant, the party so abandoning the work before its completion, can recover in the common counts, upon a quantum vdlebat. I feel satisfied he cannot. If there had been a fraud practised by the 'defendant, either in the execution cr consideration of the covenant — or if it had been rescinded by the parties, then by a special action on the case; or in case of a rescission, perhaps on the common counts, a recovery might be had ; but whilst ’ the covenant remains in force, as it did for aught that appears in the case, it must constitute the foundation of the action, and be declared on.

Judgment affirmed.


text:
    George C. Wilson vs. The State.

      Error from Dallas Circuit Court — Before the Hon. H. W. Collier.
    Til an indictment charging the larceny of promissory notes, omission to charge the value of the notes is a material defect.
    An indictment for larceny will not lie, if it appear that the articles alleged to be stolen, have been transferred, so as to create any trust, right, or property, by any consideration express or implied, or agreement. And this is a question to be considered by the jury.
    The description of such notes as being of certain amounts, is not tantamount to averments of their being of that value : nor a compliance with-the established rule “ that indictments for larceny must state the value of the articles.”
    In order to render bonds, notes, &c. th‘e subjects of larceny, they must be, at the time of taking, legally valid, and subsisting securities for the payment of money or some specific article of value.
    False pretences or artifices to obtain another’s property, by one entertaining a felonious design, will make larceny, provided it does not appear that a temporary trust or possession was extended to the'party.
    This case was decided on points reserved — and was an indictment for larceny.
    The defendant was charged in two counts, with the larce - ny of four promissory notes. The first count set out that the defendant had feloniously stolen, taken,- and carried away, four promissory notes of one hundred dollars each,' the property of one Grice, and concludes, “ the same being found, feloniously did steal, lake, and carry away, the said sum of four hundred dollars, then and there unpaid, and contrary to the form of thestatute, &c.” The second count charges the larceny of four promissory notes of one hundred dollars each, made by said Grice, and payable to said Wilson, and to become his property on the payment of four hundred dollars in cash to said Grice, concluding, “ contrary to the form of the statute, and against the peace and dignity of the state of Alabama.”
    On the trial it appeared, that the several promissory notes ', mentioned in the indictment, had been originally executed by •Grice, for the purpose of being sold to, and discounted by Wilson, under a previous agreement entered into between them: that Grice after making the notes retained them a short time, and then delivered them to Wilson, on his promise, that if Grice would accompany him, Wilson, to the place where he kept his money, five or six miles distant, ho, Wilson, would pay the sum agreed on; that in conformity with this promise, Grice accompanied Wilson, when the latter escaped from the presence of Grice, and subsequently left the neighborhood, having first disposed of the notes as his own property.
    On these facts, the court instructed the jury, that if they believed Grice made the notes in question, for the purpose of being discounted by the prisoner, then retained them, and afterwards, at Wilson’s request, delivered them to him ; and that Wilson, at the time of such delivery, had formed the design of converting them to his own use, without paying Grice the sum stipulated, Wilson was guilty of larceny. ■

    On this charge, the jury found the prisoner guilty ; but the court considering the case involving a novel and difficult question of law, reserved the point for the consideration of the Supreme Court.
    Peck, for Plaintiff.
    This conviction being for stealing notes, the first count is bad, as it alleges, by fair construction, the larceny of money; at least, it does not charge the stealing of notes with sufficient certainty — 2 Hale’s P. C. 182 — 4 Chitty’s Bl. 306, and reference in note 10.

      The eo’.mi is farther defective in this, that it does not con-dado ns is required by toe constitution-of Alabama — Art. 5, Sec 17. They are words of substance necessary to describe the act as a public offence. The equivalent words, “ contra pacen,” fyc. regularly conclude each count in the English precedents — 3 Chilly’s. Crin. L. 733, 734, 7S5.
    The second count is defective for not averring the notes to be due — Cee .Forms — Archibald, SG — 3 Chiüy’s C. L. 734. N either does it aver their value, which is material — 2 East’s C. L. 773 — 4 BL Com. 307.
    Notos are placed by our statute, with regard to larceny, on the came fluting- with other property — Dig. 103, s. 17. As larceny could not be committed. of notes at common law, because they imported no property in possession — 4 Bl. Com. £34 — tho statutes creating the offsr.ee must be founded on the presumption of a future or prospective value to their owners ; which does not arise in the case of a note held by the maher himself,and not issued. The notes here had no value between the immediate parties,- being obtained by fraud— (Chilly on Bills, 70j — and their future or contingent value in the hands of a bona fide holder, could not have relation back to the time of the illegal acquisition — at which time the crime must have been complete. As the notes, by the indictment, were to be sold,for the same amount of money called for on their face, find this amount being due to the obligor, ffrem the moment he parted with the notes, was an available offset against cny subsequent holder — Dig. 328, .329, 281. A void note cannot be the subject of a larcency. — Philpoe’s ease, 2 East’s C. L, 533. Every public offence must also be a private wrong — 4 BL Com. 5. However valueless the notes to cither party, the evidence chows a sale and delivery of possession by the maker to Wiicon,'which destroys the spe- ■ ciffsc nature of the crime charged — Leach, 401.
    ,Tho Judge’s charge was wrong, hs it authorised a conviction for a mere conversion, not coupled with a felonious intent — the felonious intent being the gist of the crime- — 4 BL

      Horn. 232. It also assumed the value of the notes without proof, and excluded the defence which might have arisen to the prisoner from any formed design of the maker of these notes, when he disposed of them to the prisoner, to get his money without paying the notes.
    In mutual fraud there could be no theft.
    See, in addition to above authorities* 1 Camp. 376.
    Attorney General, contra.
   By Mr. Justice Saffold :

This was an indictment under the statute, against the prisoner, Wilson, charging him with larceny, the subject of which was four promissory notes of one hundred dollars each, being the property of Grice, the prosecutor. The prisoner was convicted in the Circuit Court of Dallas county. The case is presented for revision to this Court, on points reserved as novel and difficult, by the presiding Judge of the court below, pursuant to the authority of the statute in such cases provided.

All the questions of law arising upon a statement of the fects in evidence, and the instructions of the Circuit Judge to the jury, as well as the sufficiency of the indictment, are referred to the consideration of this court. The indictment contains two counts. The first of which, charges briefly, that the prisoner did feloniously steal, take, and carry away four promissory notes, for the payment of one hundred dollars each, and of the value of one hundred dollars each, the property of Carpenter Grice ; the said sum of four hundred dollars being then and there due and unpaid, contrary to the form of the statute, &c. without any further description of the notes, or the manner of the taking. The second cbunt sets out the special circumstances — describing the four promissory notes to be for the payment of one hundred dollars each, due one day after date, drawn by said Carpenter Grice on a day mentioned, “payable to the said George C. Wilson, or bearer,” which said four promissory notes were to be delivered to the said George C. Wilson, and to become his property, when, and as soon as he should pay to the said Carpenter Grice the sum of four hundred dollars in cash— the said four promissory notes being yet unsatisfied, and they yet being the property of the said Carpenter Grice ; and the said George C. Wilson not having paid the said sum of four hundred dollars in cash to the said Carpenter Grice,” &c. It then concludes in the. usual form, that these notes the prisoner did then and there steal, take. &c. “ contrary to the form of the statute in such case made and provided, and against the peace and dignity of thé state of Alabama.”

This count contains no averment more positive as to the value of the notes charged to have been stolen.

, The material facts in evidence were, that those notes were drawn by Grice, the prosecutor, to be discounted by Wilson,’ according to a previous understanding between them to that effect. That after the notes were drawn, the prosecutor retained them a short time in-his possession, when he delivered them to the prisoner at his request, and upon his promise that if he, the prosecutor, would accompany him to where he kept his money, five or six miles distant, he would pay him the sum agreed on for the notes ; that the prosecutor accompanied him; that the prisoner on arriving at the place, did not pay, but made excuses, and repeated assurances that he had the money in his pocket, and would pay ; that eventually he escaped privately, having previously disposed of the notes as his own.

On this state of facts, the court instructed the jury, that if the prosecutor made the notes for tire purpose of being discounted by the prisoner, and retained them in his possession i for a time, and afterwards, at the request of the prisoner, delivered them to him and the prisoner at the time of the delivery and his reception of the notes, had formed the design of converting them to his owiu use, without making payment, and otherwise satisfying the prosecutor, and pursuant to this design had converted them to his own use, he was guilty as charged.

The counsel for the prisoner assigns for error,

1st. That the indictment is insufficient, and no conviction shou1d~ have been had upon it.

2d. rJlhat the facts as stated in the record, if true, do not constitute the crime of larceny.

3d. The court erred in the chargé to the jury.

1. By statute, paper securities, among other bonds, bills of exchange, and promissory notes, for the payment of money, or of any specilic property, are made the subjects of larceny; and it is provided, that such larceny shall be punished in the same manner as larceny of goods and chattels. This principle is not contested. It is insisted, howeve~, that the first court is insufficient; tlat it alleges by fair construction, the stealing of money, not notes; and that it does not conclude as required by ~he constitution, "against the peace and dignity of the state."

As the first branch of this exception is peculiar to this case, depending on the particular phraseology of the concluding sentence in the court, and not likely again to occur, it is sufficient to say, that by a proper c~nstruction, with reference to the preceding description of the notes, charged to have been stolen, the words `~the said sum of four hundred dollars being then and there due and unpaid," must be1understood as referring to that amount secured by the notes, and not to so much cash taken. The conebsion obviously falls short of of the constitutional requisition, which, besides its paramount authority, is subsequent to the statute, which has dispensed with the necessity of at least part of this conclusion: but, the Attorney Geneneral insisted, that this insufficiency, if any, is cured by reference to the conclusion of the second count, which is in the form requi:ed. Whether a defect in the conclusion of one count, as this is conceived to e, can be aided by reference to another, especially if such or be also defective, is a question, the solution of which is found unimportant in disposing of this case; and as it was not particularly investigated in the argument, by reference'to authorities, I decline the expression of any decisive opinion upon it.

As respects the second count, it may be observed, that the omission to charge the value of the notes, is a material defect, unaided in any manner.

The description of the dotes' as being of certain amounts, is not tantamount to an averment of their being of that value, nor a compliance with the well established.principle, that in- ’ dictments for larceny must state the value of the articles. The notes may have been .spurious, satisfied, or had never acquired validity ; the contrary of which is necessary to be shown, by charging them to be of a certain value, and this is a traversable fact. It is also a question, whether the circumstances under which the notes were concocted and passed into the hands of the prisoner, as charged in this count, are sufficient to constitute larceny : but, as the same question is presented by the facts as given in evidence, and the charge of the court upon them, the further consideration of the principle will be referred to that branch of the. case.

2, and 3. The two latter assignments are dependent on each other, and can only be examined in connection.

They involve, as a question vital to the prosecution, the inquiry, whether the notes were sufficiently consummated and valid, as legal securities for the payment of money, to be the subject of larceny ; and whether the charge was correct in assuming, that the .property in, or claim to the notes, had not been transferred and delivered to the prisoner as his own, on at least a short time given him by the prosecutor, for making the payment; or, in considering this latter fact immaterial, one of which appears from the statement of the record.

If any one entertaining the fraudulent and felonious design', of getting a hold on another’s property, and converting it to his own use, resort to a false pi’etense.or artifice to effect his «bje.ct, as the prjdfeer appears to have done, provided in fact, the prosecutor did not intrust him with, not oniy the tempo.. rary possession of the notes, but the supposed property in them, on the faith of his promise afterwards to pay them; and if they were ~the proper subjects of larceny: the principle i~ established by `numerous authorities, that such taking and conversion, would constit ate larceny.

Yet it is indispensibly necessary, that where bonds, notes, &c. are the subject, they must be, at the t~ine of receiving them legally valid, and subsisting securities for the payment of money, or some specific article of value. If these notes, for the want of consideration, or the incomplete state of the contract, had acquired no validity in the hands of any one, against the maker, no larceny could be committed in taking them; ~nd the principle applies with peculiar force in this stale, where the makers of bonds, notes, &c. are authorised, by statute, to avail themselves, as matter of defence, of any payment, set off, or discount, even when sued on the same by either indorsee or bearer of such securities.

The current of decisions by this court, has also been, that the word dis~ount in the statute, embraces tl1e want of consideration, fraud, or i11e~a1ity in the creation of the contract. The principle is recognised in the English courts, that if~a check be given on a verbal condition, wMch the drawer finds to be broken or eluded, he has a right to stop the payment; and in s~ich case, the instrument is but as waste paper, in the hands of anothers-Weenholt vs. Spilta, and others. In Philpoe's case, an indictment was preferred, under the statute of 2d Geo. II, which is similar to ours, conc~rning the larceny of notes, &c. It charged the prisoner with robberij, in the manner of obtaining the note in question from the prosecutor. The facts were, that the prosecutor had been inveigled 10 the prisoner's ]touse, where he was detained ~.y ~force for three hours, and compelled, under a menace of death, to draw the promissory note in question, on a stamp previously prepared, and which the prisoner attempted to get discounted the next day without succ~ss. This was held not to be robbery-that it was one continued act — so that the note was obtained1, by duresse — -not by stealing ; and that the paper being of no value, was not the subject of robbery. On the part of the state, the case of Rox v. Walsh, is cited as an authority to sustain this conviction. But the distinction between the two cases is marked by the fact alone, that the articles there charged to have been stolen, were bank notes, the validity of which were not questioned ; they were understood to be available while in the hands of the prosecutor, or any other person who might get possession of them.

The particular question now under consideration, was not involved in that case; but the principle only, already noticed,, relative to the motive and character of the taking, which was-determined to have been felonious. The court remarked, that whether the prisoner had, at the time he received the notes, to be immediately exchanged for gold, the animus fu~ randi was the sole point on which the question of guilt turned. That “ as to what had been said with regard to the parting with the property, it had in truth never been parted with at all: That that could only be done by contract, which required the assent of two minds, and there was not the assent of tbe mind either of the prosecutor or of the prisoner ; the prosecutor only meant to part with his notes on the faith of having the gold in return, and the prisoner never meant to barter, but to steal.” The manner of -obtaining possession of the bank notes by the prisoner in that case was similar to that by which the present prisoner gained possession of the promissory notes, as charged by the prosecutor; and, on the supposition that the jury trying this case, so determined the facts, the consequence would have been the same, but for the objection, that these notes thus- fraudulently obtained, without consideration, had not yet acquired validity as available securities for the payment of the money mentioned in them. Tlie case of King vs. Aikles, which is also cited by the Attorney General, affords more plausibility to this conviction,, than any other cited in argument; yet it will be found mater I ally distinguishable from this. In that case, the article taken, was a bill of exchange drawn by the prosecutor, and accepted by another. The prisoner was indicted for laceny, in' taking and carrying it away. There an agreement having been entered into between the prosecutor and prisoner that the latter should discount the bill, the former delivered it into his hands, to satisfy himself of the genuineness of the acceptance, which was done, but the prosecutor not intending to trust the prisoner with the bill, without receiving the money, directed his clerk to follow the prisoner to the place where the money was to be paid, and not to leave him without receiving it; but the prisoner contrived to runaway with the bill, without making payment. The court held the crime of larceny to have been committed — the property therein not being transferred before the payment of the money. The material distinction between that case and this is, that there the article taken being an accepted bill of exchange, which, by the law merchant, a part of the common law, was purely a n -gotiable security ; would have been available against either drawer or acceptor, at the suit of any innocent holder who may have received it in the usual course of trade. The notes on account of which, this conviction was had, are so obviously of a different nature; so clearly unavailable in the hands of any one, until the property in them was transferred, by actual delii ery on a legal consideration, (or something tantamount thereto, which does not appear in this record) that we have no hesitation in deciding that they were not in a condition to be made the subject of larceny ; and that the Circuit’ Court erred in treating them ás such, in the instructions to thejury.

If this objection did not exist, we are also of opinion, that the Circuit Court ought to have submitted the question of fact to the jury, whether or not the claim or property in the notes was not actually transferred to the prisoner by the agreement, and delivery of the notes by the prosecutor, on the faith of the prisoner’s promise afterwards to pay for them. This in'quiry, the instructions, as stated, precluded from the consí-deration the jury. In the case of Aildes, to which I have referred, one of the main questions submitted by the Court to the jury, was, whether the prosecutor intended to part with the note to the prisoner without having the money paid first ? the negative of which was found by the jury. If these notes, •^having been drawn by the prosecutor on no other consideration, were not delivered with an intention of transferring the property until payment made, until then this could acquire no validity ; or if the interest in the papers, as promissory notes, was intended to have been transferred, and they were delivered accordingly on the faith of the prisoner’s premise of subsequent- payment, then the dominion over the notes was legally acquired by the prisoner, and the manner of taking ’-.and disposing of them could not have been felonious. Therefore, the Circuit Judge should have submitted the question to the jury, whether or not the prosecutor intended to part with the notes to the prisoner, without being first paid; unless he had determined the case, as we think he should have done, by adopting the principle, that in either hypothesis, the alleged larceny could not have been committed.

Under all the circumstances, as charged in the second count in the indictment, and as proved on the trial, according to the statement of the evidence ; we feel satisfied the law will not sustain a future conviction, on the true facts of the case.

We therefore reverse the conviction, ■ and direct the prisoner to be discharged.

       Aik. D. 1O3~ sec. 17.

       Art 5, s. 17.

       2 Hale’s P. C. 183.

       Aik. D. 328, s.6--330, s18

      3 Camp. 376

      2 East P.C. 599.

      4 Taunt.273

      , b2 East C, L,


author: By Mr. Chief Justice Lipscomb :

text:
    Thomas McKinney vs. David Low.

      Error from Limestone County Court.

    If one consents toa suit in a different county; from that wheréin he resides, and is a freeholder, he will not be permitted afterwards to plead his privilege.
    This was an action before a justice of the peace, from whose judgment an appeal was taken to the County Court.
    On the trial, the defendant pleaded, that at the time of issuing the summons at the suit of the plaintiff, hé was a resident citizen and freeholder, in the County of Lauderdale. To this the plaintiff replied, that the defendant had waived his privilege, in that he had agreed to leave the matter in contest between them to the settlement and adjudication of a justice of the peace in Limestone county. The defendant demurred to this reply, and the county court sustained the demurrer, and gave judgment for the defendant.
    The plaintiff here assigns for error, that the court erred in not requiring the defendant to plead over, and in sustaining the demurrer.
    P. Martin, for Plaintiff.
   By Mr. Chief Justice Lipscomb :

The plaintiff sued the, defendant before a justice of the peace for Limestone county, and obtained judgment. The defendant appealed to the County Court, where he pleaded, that at the time he was sued, he was a resident and freeholder in the county of Lauderdale. The plaintiff' replied, that the defendant had waived his residence in another county, and consented to be sued in the county of Limestone. -The defendant demurred to this replication, and the demurrer was sustained by the court.

The matter in controversy was under twenty dollars, and was not therefore subject to the technical rules of pleading. All such matters of defence should be set up by proof. It appears from the record before us, that this defence was not made before the justice of the peace ; on the contrary, that the judgment was rendered by consent. It was certainly competent for the defendant when sued out of the county of his residence, to waive the objection ; and if he did so before the justice of the peace, he will not be permitted to set up the defence on an appeal to the Circuit or County Court. In this case, we infer from the record, that the objection was waived by the defendant before the justice of the peace.

The judgment must, therefore, be reversed, and remanded.


author: ' By Mr. Justice Thornton :

text:
    William R. Cox vs. Champion Easter.

      Error from the Commissioners Court of Limestone County.
    The authority granted to the Court of Commissioners of Roads and Re'' venue, to establish ferries, must be exercised with reference to public benefit and private injury.
    The Court has no authority to decide that the title to the land on which a ferry is sought to be established, is illegal.
    The bill of exceptions sealed in this cause, relates that Easter and Cox applied on the same day to the Judge and commissioners of Limestone county, foy a license to establish a ferry over Elk river, at a place called Jones’s ferry. It was in evidence that Cox had entered the land embracing one • . of the banks of the river, at the point where it was proposed to establish said ferry, and where the public road crossed the same. It also appeared that the land entered by Cox, had been relinquished by Easter, and that the register of the land office had permitted Cox to enter the same by a line of division running from the eastern boundary of the said land, west, to said river. That the effect of this division was to include the bank of the river crossed by the road as aforesaid. The commissioners’ court, believing this division to havebeen, illegal on the part of the register, granted the right of the ferry to the defendant in error, to which determination the plaintiff excepted, and now prays a reversal in this court, on. the ground that it was illegal and void.
    Hopkins, for Plaintiff

    — Aihin's Big. 363, sec. 27.
    P. Martin, contra.

   ' By Mr. Justice Thornton :

The parties in this cause both applied at the same time to< the court of commissioners of roads and revenue for Limestone county,, for an order to establish a ferry at the same place on Elk river. The order was made in favpr of the defendant in error, and refused to the .plaintiff; whereupon, the latter took a writ of error to this court.

The legislation upon the subject of establishing ferries, is' exceedingly meagre ; but it is apparent that great latitude of discretion is allowed in the matter to the commissioners court. If that discretion had been exercised in this case, and from a consideration of all the circumstances proper to be weighed, the court had determined that the license to the ■defendant in error, would produce the most public benefit* and the least private injury ; a different question from the one now before us, would have been presented. In this record,, the idea is expressly negatived, that any consideration, was? had of those circumstances, relative to public benefit and prr-vate injury, on which the statute evidently contemplates that the adjustment of any such question as may arise upon it, is to rest. The court below decided, that (he certificate of the register of the land office, held by Cox, was illegally granted, so as to include the eastern bank-of the river at the point where it was proposed to establish the ferry ; and on this supposed defect of Cox’s title, is expressly rested the determination of the question. Now it is clear, that the title thu3 acquired and held, is good at least against all the world ex ■ cept the general government.

The decision of the .court below, being evidently founded upon an erroneous supposition, must be reversed, and the matter Remanded,


text:
    James Rather and Wife vs. The State.

      Error ■ from Tuscaloosa Circuit Court — Before the Hon. A. Crenshaw.
    Where process is issued against parties, under the statute for obstructing public roads, returnable to a'particular day in court, such process may be continued from day to day by the court, and heard and determined oü another day than that named in the process.
    It is not error that such process is issued in the name of the state, for the use of the county. .
    In a proceeding of this hind against a man and his wife, where he is acquitted, and she is convicted, thejudgment is bad, and will be reversed.
    This casé was founded on a notice issued bythe Attorney General against the plaintiffs in error, preparatory to a motion for j udgment, for the obstruction of a public road by Harriet Rather, the wife of the plaintiff James. The notice was issued in the name of the state, returnable on the 2d Monday of the term, and was continued from time to time, until disposed of. A motion was made by counsel, as amicus caries, to dismiss the rule because not made at the time mentioned in the notice, and in favor of the proper plaintiff — which was overruled. A plea in abatement on the same positions was then tendered by the defendants, and a demurrer to the same sustained by the court. The jury having taken the case on the plea of not guilty, found Harriet Rather guilty, and acquitted James Rather. The judgment of the court was, that “ James Rather go hence without day, and that Harriet Rather forfeit to the state of Alabama, for the use of Tuscaloosa county, the sum of eight hundred and seventy dollars. The court, however, reserved the whole case for the opinion of the Supreme Court.
    Wilson, for Plaintiff.
    The court should have dismissed the motion; because the same not being made at the time stated in the notice, does not advise the defendants of what they are called upon to answer.
    The plaintiff in the cause should have been either the overseer, the solicitor, or the county, and in no event the state, because the state is not named in the act, and in no event interested in the motion. See Aikin's Dig. 362, sec. 22 — 360, sec. 15 — 366, sec. 35 — 1 Sfew. 349 — Aik. Dig. 361, sec. 19. The court should not have sustained the demurrer to the plea in abatement.
    In summary proceedings, the notice is considered the original writ, and the motion the declaration. There is a variance between the notice and motion in the party plaintiff, and the cause of complaint. The notice is in the name of the Attorney General, and for the wife’s obstructing the road, and the motion is in the name of the state, alleging the of-fence to have been committed by husband and wifév Judg— meHt should not have been rendered, against the wife separately, but against the husband and wife — this being a forfeiture under a penal, statute — Reeves Dam« Rel,. 69, 73 — 1. JBac. Ab. 487 — 10 John. Rep. 247.
    Attorney General, contra.

   By Mr. Justice Saffold :

This case has been brought up on- points reserved in the Circuit Court. The proceedings are founded on a notice given by the Attorney General to the defendants, to answer a motion made against them, for judgment at the rate of five dollars a day, (during the continuance of the nuisance) for failing to remove a fence which Harriett Rather, the wife of '. James Rather, had Greeted across the public road. On the day mentioned in the notice, a mo! ion was made by-the At- • torney General for judgment in favor of the state, for the amount forfeited, according to the provisions of the statute, in such case pro /ided, against both the defendants, which motion was ordered to be continued from day to day until disposed of. - Afterwards, during the same term, the motion, being under consideration, exceptions were taker. — first, by motion of counsel, as amicus curiae, and afterwards by plea in-abatement, by the defendants in person, on.the ground that the motion was not made at the time stated in the notice, nor-ia favor of the proper plaintiff — both of whicn were considered by the court, and overruled — the pica having been decided on demurrer. Issue was then taken between the state and the defendants, which beingiried by the jury, a verdict was rendered on a plea of not guiiiy; finding the defendant, Harriet Ra ther, guilty of erecting a fence across the load, and failing to re-move it, for the term of one hundred and seventy-foiir days, and finding the other defendant, James Rather, not guilty; whereupon, the said James Rather was discharged, and judgment entered against Harriet Rather — that- she should forfeit and nay to the state, fob the use of the county, eitrht hundred and x J . " ^ * seventy dollars, being at the rate of five dollars per oay, during the continuance of the nuisance. The record further shows, that the defendants made proof that the road in question was a new one, or at least an alteration of an old one, running through tire field and possession of the defendants— that it was first opened on the thirty-first day of March, and the obstruction made afterwards — that the court,' on motion, refused to instruct the jury, that if they believed the road obstructed was a new one, and not opened until after the first ■day of March, they should acquit the defendants. Error is attributed to the Circuit Court.

First. In overruling the motion to quash, and in sustaining the demurrer to the {dea in abatement.

Second. In refusing the instructions requested.

Third. In rendering judgment against the wife separately.

As respects the first assignment, it is to be observed, that the defendants had the full benefit of notice to resist the motion. That the motion having been in fact made on the day of the term appointed by the notice, and then continued by order of the court from day to day until k was hoard and disposed of, there could be no room for surprise, and no insufficiency of notice. The supposed variance between the no! ice and motion, rospeciing the party in whose name the judgment was sought, is understood to consist in not malting the overseer or Attorney General the plaintiff in the motion, instead of the state. To sustain this exception, reference is made to the case of Bettis vs. Nicholson. In that case • prosecution was commenced before a justice of the peace, by civil process, for a failure by the defendant to work on a public road. In that case, it is true, this court recognised the right of the overseer to sue in his own name foi;the use of the county. The statute expressly requires the overseer, for that offence, to prosecute by warrant from a justice of the peace — directs the fine when collected, to be paid over to him, to be appropriated to hiring hands to work on the road, and exempts him from any 'liability for costs, in case the de-" faulter shall be exonerated from the fine ; from which it re-suits that the overseer is the proper party in a suit for that of-fence. But in the case referred to, there was no decision relative to the proper party, further, than that such suit could not be sustained in the name of the county, it having no capacity to sue ; and that after the warrant had been issued in the name of the county, the proceedings could not be sustained in the name of the overseer ; that it was a change of parties in the progress of the suit. It could not have been contemplated by the statute, that all fines and forfeitures under the road law, should be collected in the name of the overseer of the road, or any in the name of the Solicitor or Attorney General. Motions, as well as indictments, are authorised against the overseer in like manner with those against other offenders ; and for neglect of his own duty he may be prosecuted in the Circuit Court, on notice and motion by the solicitor. The clerk of the court, and other officers, for neglect 0f their duties, are liable to the same form of proceeding; and in all cases where fines and forfeitures may be recovered, on notice and motion' by the solicitor in the Circuit Court, for the use of the county, it is conceived to be proper to proceed in the name of the state, for the use of such county. In this prosecution the overseer had no interest or indispen-S^e aSency* The solicitor was authorised to proceed on his information, or on presentment by a grand jury ; or it may have been done on' information otherwise acquired. As in ,the case of most other informations or presentments, this prosecution is believed to have been properly instituted in the name of the state. That the notice did not designate the plaintiff, is not a material defect-the nature of the prosecution sufficiently implied it.

Secondly. In considering the propriety of the instructions to the jury, which the court refused to give, it must be conceded that the statute is explicit, that no new road shall be cut out between the first of March and the tenth of July, in any

year, and that no new road shall be opened through an inclosure while there is a crop growing on the same. But whether the question as to what constitutes a neW road, in contradistinction to variations, in an old road, is proper for the consideration of a jury, or for the court — or to what extent an overseer may alter the course of an old road in repairing it; and whether, if even a new road has been illegally opened at an improper season of the year, it is not afterwards entitled to legal protection, leaving the offender responsible for his tort; are points of some impon anee and difficulty. In as much, however, as the argument in this case .was ex parte; and the next assignment is decisive of this case, we decline the expression of any opinion upon them.

The last assignment presents for our consideration, the question, whether for an offence of this kind, a feme covert is subject to a conviction and judgment for the forfeiture, without being joined with her husband. To establish error in the judgment, reference is made to Reeves' Domestic tions, where it is said, that “ for offences by the wife against the laws, where the punishment inflicted is nothing more than a fine, the husband is liable with the wife in all cases.” That it is otherwise where imprisonment or corporal punishment is to be inflicted. He also says, “ if the wife be liable to the penalty of a s tute, the husband must bé a party to the action or information.’’ The principle is said to be general — that for fines and forfeitures incurred by the act of the wife, for which the husband is liable, either separately or conjointly with his wife ; he must be made a party to the judgment, and equally subject to arrest and imprisonment, to enforce the payment. This doctrine is more particularly applicable to arrests under civil process ; but where the penalty consists of a pecuniary forfeiture merely, the principle is the same regardless of the form of the prosecution. The policy of the rule is to create a sufficient inducement for the husband to exert himself to discharge the debt, and exonerate both.' For the commission of various indictable offences, especially f°r crimes of the higher grade, by a feme covert, she may be punished without her husband, if he were not present or in any manner encouraging or assenting to them. It is a legal presumption, that whatever the wife does in presence of her husband is done under his coertion — so as to subject him to the punishment — and (in respect to some offences) to exonerate her ; yet the husband may show the contrary — that the act was committed against his will, and thus discharge himself from liability to any infamous or corporal punishment, though the wife be subject to the same.

There are crimes malum in se, for the commission of which by the wife, the presence and presumed coertion of the hus* band afford her no impunity — such as treason, mrrder, &c,.

This case must be governed by the law applicable to the j:ade of crimes and misdemeanors; and the nature inferior of the offence, and character of the punishment, more than the form of the prosecution, must determine the relative liability of the parties. In Kew-York it has been held, that the husband was liable in a qui tarn action for a forfeiture under their statute, incurred by the wife, by retailing liquors in his absence. Besides the policy of the principle already alluded to, the additional reason exists for the liability of the husband, that being entitled to his wife’s portion, and all her earnings, he alone has the means of discharging the forfeiture.

■ As respects the form or character of this prosecution, it is considered sufficient to say, that it is in the nature only of an information to recover a fine or forfeiture for the .violation of a penal statute — that having been commenced, as it should be, against the husband as well as the wife ; she was not subject to a conviction, unless he had'been also convicted. That on the acquittal of the husband, the wife was also entitled to her discharge — consequently there was error in the judgment, for which it must be reversed.

      1 Stew. 349.

       Aik. D. 361, soc. 10.

       Aik.D. 362, 363, s.20, 25.

       Ak D "62 sec. 22.

       Aik D. 365, sec. 31.

      Aik. D. 362, sec. 21.

      73,Dom. Rel. 69.

      Dom. Rel. 74- 1 Hawk P. C. 5 & Ba. Ab. tit Baron and Feme.

      10 John. 256


author: By Mr. Chief Justice LlFSCOMB :

text:
    Nathan Hughes vs. Edward T. Parker.

      Error from the Circuit Court of Tuscaloosa County — Before the Hon. A. Crenshaw.
    Ths cbcision of an inferior court upon an abstract question of law, having no apparent connection with the issue before it, is no ground of reversal, in error.
    Where the decision of a court on a question of law is excepted to, the record muR show the relevancy between the point involved and the issue..
    Trover for the conversion of seven clocks.
    The points involved in the decision of this case, came before the court on a bill of exceptions, which sufficiently explains its nature.
    On the trial, the defendant, by his counsel, moved the court to instruct the jury, that if a general agent sell the property of his principal, (there being some evidence that the principal was known, and some that he was not) in discharge of his own debt previously contracted, such sale vested the. property sold in the purchasing creditor of the agent. Also, that if the jury believed the agent was entitled to. receive payment of Ids wages out of the proceeds of the property to be sold, then, if ' he agent sold the property of his principal in payment of his own debt, provided that debt did not exceed the value of the property sold,- such sale would vest the property in the purchasing creditor. The court having refused to give this charge, a bill of exceptions was tendered, and the refusal, aforesaid is now here assigned as error.
    Wilson, for Plaintiff.

      Aikin, for Defendant.
    Before considering the legal doctrines relied on by the. ' plaintiff, it will be proper to inquire, do they really arise out of the record ; and if so, how far is their application modified by the peculiar features of the case itself. The first step towards a correct decision, is to fix clearly the subject to be decided. This court cannot act upon vague suggestions. Although constituted for the correction of errors, yet it will not travel out of its way to find them. To sustain the proceedings of the inferior courts, when right, is as much its duty, as to reverse them when wrong. It will, never presume error— but on the contrary require it to be shown- Nor is it suffici.ent that the alleged error is merely probable: it must be certain and manifest. If this court can presume at all, it will presume most strongly against the plaintiff in error; and will believe his case, as exhibited by the record,, to be the most far-voable to him, which the real facts will warrant. As in the court below, the plaintiff can succeed only by clearly showing his right, so here, he can prevail only by showing with the same clearness, the wrong which he seeks to correct. Uncertainty is as fatal in the one case as .the other. This doctrine is agreeable to common sense, and accords with the whole theory of legal presumption. It is substantially incorporated into a standing rule of this court, which requires the plaintiff suggesting a diminution of the record, to show cause, before a pertiorari is awarded him but grants it to the defendant, upon mere application as a mere matter of course. The requisition that error must be made manifest before a reversal, would seem, if any inference can be drawn from the language of judicial proceedings, to be as ancient as the writ of error itself — for it grounds the interference of the Superior Court upon the fact that “ manifest eripr kathiniervcn-ed.” Fortunately, however, a principle of such consequence, is not left .to, be collected from these loose evidences.' It is affirmed in a long train of authorities — 2 Bac. Ah. 529 — Bill of Exceptions — 8 East's Rep. 280 — 2New. Rep. 36 — Shower’s
      Pari. Cases, 120 — 2 Caines, 169 — 5 John. Hep. 467 — 8 John, flep. 396 — 3 Litlell’s Rep. 16 — 2 Binney, 168, Oui- statute of 1814, giving 'the bill of exceptions, is not couched in ” terms calculated to abate the strictness required in the authorities just cited — Aikhis Big-. 254, sec. 5.
    Among the consequences of this principle, is the one which applies directly and forcibly to the present case ; that where the error complained of, is the refusal of the Judge below, to charge the jury as requested, the matters of law contained in that charge must be shown by evidence, in the bill of exceptions, or other part of the record, to be connected in a pertinent manner with the cause he was frying — otherwise this court cannot determine whether they were important or not;- or if the Judge committed an error, whether that judgment reached to and vitiated the judgment- To declare the law correctly, is a duty certainly, but yet circumscribed by the objects for which it was imposed. It extends to only such law as has a material bearing on the case. To refuse an impertinent instruction, even when involving a proposition true in the abstract, is an obligation no less imperative on the Judge, than to give it when true and pertinent: because the giving such a charge would tend to delude the jury into a belief that the Judge thought it required by the state of the evidence, and would thus virtually amount to an instruction on a matter of fact. A contrary doctrine would lead to the most pernicious results. No judgment could stan<¿ unrevésted, if the successful party were compelled to abide the hazard, that every opinion delivered by the Judge in the course of the trial, whether relevant or not, was a correct one. Counsel who wished to make litigation endless, would only have to reduce to a schedule a few of the vexed questions of the law, interlarded with some of its more recondite or forgotten doctrines, and gravely propound each point successively to the judge ; and the contest in the inferior courts would be, not who could best unfold the merits of his case, but who could most adroitly surprise the Judge into a wrong opinion, upon a point foreign to the merits. The force of these considerations has?. not been lust on this coart heretofore, as appears by their opinion in the case of f-Vihon vs. Jackson — Min. Mcp. 2 b 9. Besides, the real ground of complaint is, that the judgment following the verdict, i< wrong in point of law. Now, as e? e- . ry general verdict includes ¡aw as well as fact, it follows, that where no facts are supplied by the record, this court can never know what principle of law was combined with the facts in the formation of that verdict — nor if the charge was wrong, whether the jury may not have disregarded it, and returned a verdict embracing the opposite doctrine. In reversing a judgment thus situated, the court may perchance correct the law — but it clearly runs the equal, hazard of changing the finding of the jury on a matter of fact, which is their exclu sive province.
    On examining the record, it will be perceived, that these doctrines, so essential to certainty injudicial proceedings, apply in a pointed manner to the case before us. It does not appear that any of the doctrines on the subject of agency were at all relevant. It is not shown who was the agent, what was the nature of the agency, or how the agent’s acts related to the subject of controversy.
    But, were the court even authorised, by the state' of the record, to adjudicate this cause upon the points made in trgu-. ment, they could not avail the plaintiff. From the bill of ex-, ceptions it is clear, that the jury might have found,the'fact, that the principal was known to the person dealing with the agent — and the instruction being asked unconditionally, was properly refused, unless it would have been right under such a finding. But the instruction that a general agent thus t-i-. tuated, could sell his principal’s goods for his own benefit, would have been wrong for another reason: because the objects of the agency not being shown, its powers are not sus-, ceptible of a definition. They must be collected from the course of trade and the nature of the employment., and are therefore, as much diversified as human concerns ; for any of them not forbidden by law, may be committed to an agént— '2 Mod. 100 — Willes, 406 — 1 Camp. N. P. C. 258 — 15 East, 407 — 1 Liv. on Agency, 107 — 2 ib. 193.
    There are many general agents whose authority extends only to the custody, and not to the saie of the goods — and for any thing appearing on the record, tho agent here may have been of that class. But supposing the charge to have been asked under such an implied qualification as would be warranted by the circumstances of the case, still the settled doctrines cf the law are against the plaintiff — 1 Liv. on Agency, 94, 104— Í Taunt. 349, 350 — 23 John. Rep. 332 — 3 Stewart's Rep. 26. Besides, this circuitous transaction, included, subst mtially, in the first instance, a purchase of the principal’s property by the agent, which is forbidden — 1 Liv. on Agency, 416, 417, 418. So indexible is the rule, that a general agent, cannot exceed his ostensible powers — that a factor whose duty is to sell cannot pledge the goods for his own debt, even where the principal is unknown — 2 Sir. 1178 — 1 M. & S. 140 — 2 Slur’;. 21 — 4 B. & A. 443 — 2 B. if A. G39 — 3 B. & C. 342.
    The second instruction, which related to the agent’s lien, was properly refused, because it was coupled with a condition utterly absurd in itself. But apaxt from this condition, the right to receive compensation for selling out of the proceeds of the property, if it be a lien on the money in the agent’s hands, before it is paid over, can never amount to a lien on the specific property itself. L lion is good only while united with possession. On parting with the possession, the lien is forfeited — 2 Livermore, on Agency, 76, 78. Here it is evident, that this legal requisite to the validity of a lien could never arise : for the agent’s compensation for selling, which is insisted on as a lien, is not due until the service is fully performed : that is, until the property is sold, and possession transferred to the vendee.
    Hopkins also argued on the same side-
   By Mr. Chief Justice LlFSCOMB :

The bill of exceptions in this case, shows tfekt the court: refused to charge the jury, as requested by the counsel for Hughes, who was defendant in the court below. The record does not show any connection between the charge prayed and the issue. It appears that the Judge was ashed to respond to an abstract question of law, having no relation to the facts' in the case then on trial. In the case of Wilson vs. Jackson, and Keith vs. Patton, it was decided, that the record must show the relevancy of the charge p’rayed, to the issue. A decision pn an abstract question of law, if clearly wrong, is no ground of reversal. The Judge in this case, declined responding to the request of the counsel, and it may have been because he( looked upon it as irrelevant — and as its pertinan-cy is not shown by the record, we must infer that to have been the case.

The judgment must be affirmed;

      1 Ala.R.399

       38.


text:
    Lemuel E. Singleton vs. Charles Finley.

      Error from Pickens Ciruit Court — Before the Hon. S. L. Perry.
    Mere right of possession,' arising from the right of property, is not sufficient to authorise a recovery under the summary remedy, for forcible entry and detainer, or for forcible or unlawful detainer.
    The claim of a party in this proceeding, must show that he has, by himself or tenant, enjoyed ihe actual possession of the premises within the three years mentioned by the statute.
    Lemuel E. Singleton commenced proceedings in a justice’s court, against Charles Finley, for the unlawful detainer of a. certain parcel of land mentioned in his complaint. Judgment being had against Finley, and a writ of restitution awarded, this case was taken to the Circuit Court of Pickens County, by writ of certiorari. Finley there assigned for error, in the justice’s court, among other immaterial points—
    1st. That the complaint did not show Singleton to have been either tenant for life or years.
    2d. That the complaint did not show that he ever had, or ever was entitled to possession!
    3d. That the proceedings before the justice did not evidence his jurisdiction.
    4th. That there was a variance between the summons and complaint.
    The evidence and record disclose the following facts :
    The complaint of Singleton, was for the detainer of the land in question, and the summons was for a forcible and unlawful detainer.
    Finley pleaded peaceable possession for three years, and no testimony was produced that any possession was ever had by Singieton; neither did; the complaint show any such possession, either by himself or tenant. On these facts, the Circuit Court reversed the entire judgment in the justice’s court, and that reversal is now here assigned for error.
    R. K. Anderson, for Plaintiff.
    , G. B. Frierson, contra-.

   By Mr. Justice Saffold :

/ Singleton complained before a justice of the peace that Finley unlawfully detained from him a tract of land therein described, of which, he, Singleton, was the lawful owner in fee simple. Singleton obtained a verdiet and judgment before the justice, which, on certiorari, were reversed in the Circuit Court. One of the assignments of error, in the Circuit ' Court, and the only one necessary to be noticed, is, that the complaint does not show that the plaintiff ever had possession, or was entitled to possession of the land in question. The alleged ground of error in this Court is, that the Circuit Court wrongfully sustained the assignmsnt of errors. The question is now presented for the consideration of this court, on the ground on which the reversal is presumed to have been had in the Court below. It is, whether the record exhibits a cause of action, for which a remedy has been provided by the statute, concerning forcible entry and detainer. That the statute, by this summary mode of procedure before a justice of the peace, did not contemplate a tviü. of the right of property, or of the right to possession derived merely from the strength of title, sufficiently appears from the grade of the tribunal, and from various expressions contained in the statute. Such has been established as the rule of construction by this coul.(;5 [n t!ie cases of Childress and McGehee,and Lecalt and Stewart. In both these cases it was held, that the record must show that the plaintiff has had actual possession of the premises, so that these cases are decisive of the present one, if the same objection applies. The plaint which is the leading process, alleges title only in the plaintiff, and unlawful detainer by the defendant. The notice to the defendant^ claims the right and title of possession, and charges, that the defendant holds without authority. The summons alleges a forcible and unlawful detainer by the defendant on the land of the plaintiff, without any showing as to the mode or man- • ner by which the defendant entered. There is nothing in the nature of this claim, or in any of the averments, to exclude the presumption, that the plaintiff may have purchased . the land of the government, while, occupiod by the defendant ; , or that he may have.purchased of some individual, between whom and the defendant, there was no privity of contract— they may even have held adversely, under conflicting titles.

The mere constructive right of possession, arising from-the right of property, is not sufficient to authorise a recovery in this summary mode. The statute forbids any inquiry into the estate, or merits of the title, on any complaint of this nature ; and applies the remedy exclusively to such lands, tenements, or other possessions, as shall be forcibly entered and detained, or forcibly or unlawfully detained. Here a forcible entry is not charged, but only an unlawful detainer, by the plaint to the magistrate — and by the summons, a forcible and unlawful detainer. Waiving this discrepancy, and giving the plaintiff the benefit of either, yet his ground is insufficient to justify this remedy. He should have sho>vn by the record of his claim, that he had enjoyed the actual possession in person or by tenant. If it were admitted, that in this case the evidence was sufficient to establish the necessary possession by the plaintiff, yet the proceedings do not describe a legal 'cause of action. This defect is the more fatal, in as much as the defendant, besides the general issue, pleaded peaceable possession for three years. A cause for this action may once have existed — and it may have been barred by the lapse of time, or change of the right of possession; therefore the evidence in this case cannot cure the defect in the proceedings.

The judgment of the Circuit Court must be affirmed.

      1 Al. R. 134

      2 Stew. 474.

      Aik. D. 205, s. 20.

      Ib. s. 7.