author: GOLDTHW AITE, J

text:
    GASTON vs. PARSONS.

    1. A return of “ no! fn>r to a writ, does not authorise the inference, that the suit ¡..¡ábandoned by the plaintiff.
    2. A plea in abatement, that a anil was pending for the identical cause of action, at the time of the i.«naneo of the writ, is supported by the i'ic. haiie-:) of the record ; and the replication-to such a plea shou'd ; resent the i: rue of mil ¿id record.

    3. A writ, as part of the. record, ir. proper and pertinent evidence to support such a pica, rv an i sue of vrl lid record.

    4. A defendant is out it - ' i ■■ yiluK'!'.! ’ ron pros, where no replication i; filed to ■/ :■ ic cbt-L -t.
    5. And a failure, on his.part, to more for judgment of nonpros, does not authorise the rendition of judgment agaiusthim.
    Errtn- to Vf licor: County court.
    Assumpsit on loIc.
    In this case, Cachón was cued by Parsons in the County court of Wilcox tounfy, and pleaded the pendency of another suit for the same cause of action, in abatement. No replication or bane appeared on the record., The judgment entry etc ted: !! this day came came the parties, by their attorneys, and the plaintiff has leave to dismiss his suit in the Cjircn.it court; and the defendant sayeth nothing further ia bar or in preclusion of the plaintiff’s right of action, hut against the.plaintiff leaves himself wholly undefended; it is therefore considered by the court, that the plukiUn recover of the defendant the sum of,” — then proceeding to assess the damages without the intervention of a jury. _ A bill of exceptions disclosed, that when the cause came on for trial, the defendant offered in evidence, a writ issued from the Circuit court, apparently for tire same canse of action, and offered to prove that it had never been dismissed or discontinued: but the court would not permit this evidence to be introduced, and gave judgment in favor of the plaintiff.
    The defendant below prosecuted his writ of error to this court, and assigned for error, that the County court erred—
    1. In rendering judgment against him, without disposing of his plea in abatement.
    2. In not permitting the introduction of the evidence, stated in the bill of exceptions.

      Proctor, for plaintiff in error.
   GOLDTHW AITE, J

— The judgment entry, unexplained, would induce the belief, that the defendant in the court below withdrew his plea, and assented to the rendition of a judgment for .the amount of the note; but the bill of exceptions satisfactorily shows, that the-plea in abatement was not withdrawn, or the defence abandoned. The defendant might have insisted on his right to a judgment of non -pros, for want of a replication to his plea. The omission so to do, did not place him in a de fenceless condition, or authorise the court to render any judgment against him; and the County court erred in so doing.

If we were even to presume that the usual replication to a plea of this description was filed, and that an issue of mil fiel record had been presented to the court for its determination, it would not better the condition of the defendant in error. The writ offered in evidence showed the commencement of a suit, apparently for the same cause of action, on the eighth day of May, eighteen hundred and thirty-seven. This was returnable to the Circuit court, to be held on the seventh Monday after the fourth Monday of March, eighteen hundred and thirty-seven; and the presumption is strong, if not conclusive, that the Circuit court was in session when the second writ was issued, on the nineteenth of .May, eighteen hundred and thirty-seven, returnable to the County court, and the foundation of this suit. The first writ was not executed on the defendant, and the return is ‘ not found;’ but this will not authorise us to infer an abandonment of the suit on the part of the plaintiff, even if that could avail him on the issue we have named.

The evidence offered was proper and pertinent to support the plea on an issue of mil tiel record, and ought not to have been rejected, if such was, in point of fact, the state of the record in the court below.

In either aspect of the case, there was error in the action of the County court; and its judgment is reversed, and the cause is remanded.


source: Caselaw Access Project

author: GOLDTHWAÍTE, J.

license: Public Domain

text:
    THE STATE vs. BRILEY.
    1. Where the act of eighte:-:; hundred and coven (Aik. Disc. 102,) speaks of disab’ing a limb or in moor, a permanent injury is contemplated, sue ¡ as at com.;¡o.i law would constitute mayhem: a temporary dfo:::> i a; y oí a unger, an ami, or an eye, is not sufficient to constitute the r ínfuíory cíicnee.
    2. Precision of description is unnecessary in ait indictment: all that the law requires, isa d .-.-cription of the offence in the words of the statute creating it,— except where technical language is used.
    3. Where an indictment charges an offender against a statute, with doing the unlawfu1 act, with malice aforethought, and contains proper a1 legations of time and p'ace, with a formal commencement and conclusion— it is. sufficient.
    4. After a conviction on ono count of an indictment, amotion in arrest of judgment, cannot prevail.
    Error to the Circuit court of Covington. ■
    Indictment for mayhem, triec^before Crenshaw, J.
    The indictment contained three counts — the first of which charged as follows : that defendant, “ with force and arms, in and upon one P J, did make an assault, and upon the left arm of him the said P I, with a certain stick, which he the said defendant then and there had and held in both his hands, did strike and break, and did oh purpose and of malice aforethought, unlawfully disable the said left arm of him said P Jp with intent him the said P J, then and there to maim, contrary to the form of the statute,” tj-'-c. A demurrer was filed to the indictment, which was overruled, and upon a plea of “ not guilty,” the, defendant was convicted, and the
      sufficiency of the indictment was reserved by the court' below for review.
    It was assigned for error, that the indictment was insufficient to sustain the conviction, and that the.demurrer thereto should have been sustained.

      Cook, for the plaintiff in error.

      Attorney General, contra.
    The- Attorney General

    contended that the declaration was sufficient. As to sufficiency of first count — (See State vs. Absence, 4 Porter.)
    ' Joinder of distinct offences no ground of demurrer or arrest of judgment — (1 Chitty’s C. L. 175; Arch. 612? Hale, 173.) Court may, in such case, however, quash, or compel prosecutor to elect — (Arch. 61; 2 Camp. 132.)
    Good and bad counts and general verdict — one good count sufficient — (State vs. Coleman, 5 Porter; 3 Murphy’s N. C. Rep. 12.)
    The jury, in this case, expressly found on the first count, which brings the sufficiency of that count only under review.
   GOLDTHWAÍTE, J.

— The only point reserved for the determination of this court, is, whether the indictment is sufficient to warrant the conviction; the jury having, by their verdict, found the defendant guilty of mayhem.

The second and third counts of the indictment, may be entirely discarded from consideration, as it is certain, neither charge that offence — the former being for an assault, and disabling the arm of the individual injured, and the latter for an assault only.

To ascertain if the first count is sufficient, it is proper to notice thev terms of the statute under which it seems to' have been framed. The act of eighteen hundred and seven (Aik. Dig. 102) enacts, “ if any person or persons, on purpose and of malice aforethought, shall unlawfully cut or bite off the ear or ears: or cut out or disable the tongue: put out an eye, while fighting or otherwise: slit the nose or lip : cut or bite off the nose or lip : or cut off or disable any limb or member of any person whatsoever ; such person shall be deemed guilty of mayhem.”

It is evident, that wherever the statute speaks of disabling a limb or member, a permanent injury is contemplated, as such was the common law notion of the extent of the injury necessary to constitute a mayhem. A temporary disabling of a finger, an arm, or an eye, would not be sufficient to constitute the statutory offence. But it would at all times be exceedingly difficult to frame an indictment, with a view to a specific description of the exact injury sustained. This precision of description is as unnecessary, as it is dangerous, in indictments bn statutes, and all that the law requires, is a description of. the offence, in the words of the statute creating it—(Arch; Crim. Law, 52.) The only exception that is known to exist to this general rule, is where a statute makes use of a technical term known to the. law; as burglary, robbery, &c.—(State vs. Absence, 4 Porter, 397.)

Having regard to this general rule, it would seem only to be necessary, that the indictment should charge an offender against this statute, with doing on purpose arid of malice aforethought, unlawfully, the act complained of. This, with the proper allegations of time and place, with a formal commencement and conclusion, would constitute a sufficient indictment. If we examine the first count, we ascertain that all these allegations are found there, connected with other matters, which, if superfluous, are neither repugnant nor inconsistent with the charge. The statement of-the assault and battery with the stick, and breaking the arm, are, indeed, but a history of the violence, which could have been.omitted. The super adding the intention to maim, is, when examined, nothing more than a reiteration of the idea previously conveyed to the mind, by-the words ‘on purpose, and of malice aforethought:’ the indictment is, therefore, sufficient to warrant the conviction.

If we were permitted’ to examine the point, as to mis-joinder of the counts, it would avail the defendant nothing, as it is clear, that after conviction on one count alone of the indictment, a motion in arrest of judgment could not prevail.

Let it be certified, that there is no error in the judgment rendered.


author: ORMOND, J.

text:
    JAMES vs. TAIT et al.
    1. A promise, under seal, to make a title in fee simple at some fu- ’• ture time, to land, provided, the passage of an act of Congress can be obtained to authorise such a conveyance; is properly rejected when offered as evidence, to establish title in a defendant in trespass.
    2. Trespass quare clausum fregit, will lie to recover possession of lands; and a writ of possession is properly awarded to the successful plaintiff.
    3. The conduct of a cause in court, is entrusted to the discretion of the presiding judge, and he may, when necessary, permit a . party to introduce evidence, after the testimony is closed.
    4. When a feme sole plaintiff marries pending a suit — the husband may make himself a party by motion; and where a suggestion is made that such a plaintiff has married, and a scire facias issues, calling upoh the husband to shew cause why he shall not be made a party — it is equivalent to a motion.
    5. After judgment, advantage cannot be taken of an entry on the record, that proceedings were stayed by injunction; and where the parties go to trial afterwards without objection — it will be presumed that the injunction was dissolved.
    6. .Objections to a declaration cannot be received after a plea of • not guilty.
    7. Ñor can an objection to the endorsement on the writ, be entertained, after the plea of not guilty.
    8. In trespass to try title, the plaintiff need only endorse on his writ, “ that the action is brought as well to try titles, as to recover damages” — any unnecessary description of the premises, or of the injury committed, is regarded as surplusage.
    9. Where the verdict responds to the issue, and judgment is rendered for the land described in the declaration — it is sufficient; and the use of the word “ tenement,” in addition to the description of the lands, does not vitiate the judgment.

      Error to Clarke Circuit court.
    Trespass quare'clausum, tried by Pickens, J.
    This was an action of trespass, to try title to a tract of land, brought by the defendant, against the plaintiffs in error.
    The writ was in trespass, and the cause of action was thus endorsed: “This action is brought to recover damages of the defendant, for unlawfully, and with force and arms, breaking and entering a certain close of the plaintiffs, to' wit, the west fraction of section thirty:six, of township five, range three, east, in the district of St. Stephens', lying in the county of Clarke, aforesaid, and cutting down the timber, &c.; and is brought to try titles, as well as to recover damages.”
    The declaration contained three counts. In the first count, the locus in quo was described as i: four closes of the plaintiffs, lying and being in the county of Clarke.”
    In the second count, it is described as l( the close of the said plaintiffs, to wit, the east and west fractions of section thirty-six, of township five, range three, east, in the district of lands offered for sale at St. Stephens, and situate in the county of Clarke.” The trespass is alleged to have been committed on the first of March, one thousand-eight hundred, and on divers other days and times between that day, and before the commencement of this suit.
    The third count described the premises as the “ fraction of section thirty, township'five,.range three, east”
    To this declaration, the defendant below pleaded not guilty. The cause was continued until the Spring term, eighteen hundred and thirty-seven, when this entry appeared: “ enjoined mid continued f and at the succeeding term, “continued, and the intermarriage of Martha Weatherford with Peyton Downey suggested, a scieri fa-cias to issue.” A scieri facias accordingly issued to said Downey, to appear and show cause why he should not be made a party plaintiff to the suit, which was returned, executed.
    A trial was afterwards had, when the jury rendered a verdict'for the plaintiffs, by which they found the defendant guilty of the trespasses in the declaration mentioned, and assessed their damage to nine hundred and five dollars — upon which the court rendered judgment in favor of the plaintiffs for the damages, and also for the “ tenements in the declaration mentioned, to wit, the'east and west fractions of section thirty-six, township five, range three, with the appurtenances.”
    During the trial, a bill of exceptions was taken, from which it appeared that the defendant below proved and offered in evidence, an instrument in writing or bond for title of the lands in controversy, executed by one Alger Nuoman, and proved that the plaintiffs knew of the execution of said bond, and of the possession taken under it, before the execution of the deed of the plaintiffs below from said Alger and. wife. The plaintiffs below claimed as heirs of Mary Dyer, and from said Newman and wife; and said Newman claimed through his wife, as another heir of Mary Dyer. ’The court refused to permit the bond to go to the jury as evidence of title, but permitted it to be read, to ascertain the damages.
    The court also permitted the plaintiffs below, after the defendant had closed, lo'¡v-examino n witness as lo new matter, which had not arisen in the examination of either party, and not appertaining to any point which had arisen on the examination in chief; the plaintiffs’ attorney stating, that he had inadvertently omitted to.prove the facts, on the examination in chief. The court permitted the prooff to be made, reserving to the defendants the right to reply to the examination. These matters were all excepted to by the defendant below.
    The instrument or. .bond, relied on by the defendant below, was in these words:
    “ Know all men, by these presents, that I, Alyer Newman, of the county of Monroe, and State of Alabama, am held and firmly bound, unto Robert D. James, of the county of Clarke, and State aforesaid, in the just and full sum of sixteen hundred dollars, for the faithful payment of which, well and truly to be made, I hereby bind myself, my heirs and assigns, executors and administrators, firmly, by these presents, signed with my hand^and sealed, this 18th July, 1832. ,
    “The condition of the above obligation is such, that whereas the said Robert D. James, has advanced to and paid for, and on account of said Alg-er Newman, the sum of four hundred dollars, at and before the sealing and delivery of these presents, the receipt and payment of which, as aforesaid, is hereby acknowledged; and whereas the said Alger Newman, in right of his wife, Elizabeth, and under and by virtue of the treaty with the Creek tribe of Indians, and designated as the treaty of Fort Jackson, his said- wife being one of the heirs of Mary Dyer, has become possessed of the legal claim to the undivided third part of a certain tract or parcel of land, situate, lying and being in the counties of Clarke and Monroe, and State of Alabama, and being the fractional section number thirty-six, in township five, range three, east, containing three hundred and twenty-four 95-000 acres, on the west side of the Alabama-river; and one hundred and twenty-four 66-100 acres, on the east side of the said river; and whereas the said Alger Newman, for and in consideration of the payment aforesaid, and a further payment to be made, as hereinafter mentioned, is desirous to transfer in fee simple, his said claim to the said lands above described, but is now debarred from conveying the same, by the treaty aforesaid; — he therefore hereby agrees, that he will use his best exertions to obtain, under a law of Congress, as soon as possible, the right to dispose of and sell the said tract of land; and should he obtain said right, he will forthwith convey the same in fee simple, to the said Robert D. .Tames, his .heirs or assigns. And the said Alger Newman further agrees, that in tile event he shall not be able to obtain said right to dispose of the same, then he will, on the first day of March, eighteen hundred and thirty-three, or previously thereto, secure by mortgage, one good, sound and healthy negro woman and child, of value equal to the penalty of this bond, to the said Robert D. James, for the sum of money which he shall have already advanced to and on account of the said Alger Newman, and also for the further sum of four hunered dollars, winch the said Robert D. James agrees to pay to the said Alger Newman; on the completion of the said mortgage; and the said Robert D.'James agrees for himself, his heirs, &e. that in the event the said title shall not he cumple-ted, in manner and form aforesaid to him, by the said Alger Newman, then, if the heirs and descendants of the said Newman, or his or their assigns, shall well and truly convey to him their representative shares, titles and claims to said land, on arriving at the age required by. said treaty, to entitle them to convey the same, he, his heirs, &c., will relinquish to each of them, respectively, a corresponding proportional share or claim, of and to said mortgaged property. Now, therefore, if the said Alger Newman shall well and truly ubserve, keep and perform the conditions and obligations, herein agreed to be by him kept and observed, then this obligation to be void ; otherwise, to be and remain in full force and virtue.”
    From the judgment of the court below, the defendant below prosecuted a writ of error to this court; and now assigned for error—
    1. The court below erred in allowing new evidence to be introduced by the plaintiff, after his evidence had closed ;

      2. in rejecting the deed set forth in the bill of exceptions ;
    3. In rendering judgment, for tenements not sued for, as shewn by the endorsement on the writ;
    4. In awarding a writ of possession, in an action of trespass merely;
    5. The wTrit, endorsement, declaration and verdict, are variant, inconsistent and insufficient';
    6. The judgment is uncertain, and does not sufficiently describe the property recovered, and is for tenements, and therefore not authorised by the statute, which allows a writ of possession for lands only ;

      7. In proceeding before the injunction was dissolved;
    8. In rendering judgment in favor of Peyton Downey, when he was not made a party;
    9. The .verdict is erroneous, because, for all the lands in the declaration — part not being described, part not sued for — and not specifying to be for the lands which are described, and because the lands are not sufficiently described or identified, which are recovered by the verdict ;
    10. The judgment being for premises described in the third count only, and the entry being therein laid more than twenty yea s ago, the right of entry of 'plaintiffs was tolled, and judgment could not be thereon given.

      Stewart^ for plaintiff in error.
    Porter, contra.
   ORMOND, J.

— It appears from the bill of" exceptions, that the bond from Newman to the plaintiff in'error, was offered in evidence, as establishing a title to the land in controversy, in the plaintiff in error. It appears to be a promise on the part of Newman, to'make a title in fee simple to the land, or some portion of it, to the plaintiff in error, at some future time, provided he could obtain the passage of an act- of Congress, authorising him so to do; and that failing to obtain such act, he would indemnify him for his advance of money, by a mortgage on a negro woman.

It is hot necessary to enquire, whether a Court of Chancery could have, under any circumstances, enforced a specific performance of this agreement; it was clearly unavailing; for the purpose for which it was offered in evidence, and was, therefore, properly rejected.— Whether it could have had the effect to show that the possession of the plaintiff in error was adverse to the defendants, it is not necessary now to discuss, as it does not appear to have been offered for that purpose in the court below.

The objection to the form of the action cannot prevail. In the case of Thrash vs. Johnson, (6 Porter’s Rep. 458,) the same objection was made as in this case, and overruled by the court. In that case, as in this, the action was trespass quare clausum fregit.

It cannot be assigned as error, that the court permitted evidence to be introduced by the defendant in error, after the close of the plaintiffs’ testimony. The conduct of the cause, in thó court below, is entrusted to the discretion of the presiding judge. We cannot presume that he has exercised that discretion improperly; nor is it a matter that we can revise,- but so far as we can judge of the decision, from the account in the bill of exceptions, it appears to have been entirely correct.

The assignment, that Peyton Downey was not made a party, is not sustained by the record. The statute provides, that when a feme sole plaintiff marries pending the suit, tlie husband may make himself a party to the suit, by motion. It appears from the record, that a suggestion was made, that said Downey had intermarried with Martha Weatherford, one of the plaintiffs, whereupon a scire facias issued to him, to show cause why he should not be made a party to the suit. This was an unnecessary proceeding, but must be considered as equivalent to a motion, especially as he is named as one of the plaintiffs, in all the subsequent proceedings of the cause.

No advantage can -now be taken of the entry on the record, that the proceedings were at one time stayed by injunction ; as the parties went to trial afterwards, without objection, we must presume that the injunction whs dissolved.

All the remaining objections, except those relating to the verdict and judgment,' are answered by the decision of this court, in the case of Sturdevant vs. Murreirs heirs, in which this court, under the influence of a statute of this State, held, that no objection can be taken to the declaration, after the plea of not guilty filed.

The court say, “ our conclusiouis, that, in the action of trespass to try title, the declaration should describe the land in controversy, with so much particularity and precision, as will inform the defendant what he is to defend against, and the court, for what it is called on to render judgment. But, in the present case, the plaintiff in error cannot avail himself of an objection to the declaration ; he is foreclosed, by having pleaded not guilty in the Circuit court. The statute is express to the point” —(Aik. Dig. sec. 46, p. 266.)

If no objection can be taken, after the plea of not guilty to the declaration, it necessarily follows, that none can be made to the endorsement on the writ. The statute does not require the plaintiff to do more than to endorse on the writ, “ that the action is brought as well to try titles, as to recover damagesthe rest may, therefore, be rejected as surplusage, especially after the plea of not guilty, to the declaration, is filed.

The objection to the verdict and judgment .cannot be sustained. The verdict of the jury, is responsive to the issue, and. the judgment of the court is for the land described in the third count of the declaration. It is insisted, also, that the word “ tenement,” employed by the court in rendering judgment, is not sufficient to entitle the defendants in error to recover lands. Without conceding that the objection is good, it is sufficient, that, in this case, a judgment is rendered for the lands claimed in the declaration, by the appropriate description, according to the United States’ survey; and this certain and accurate description cannot be vitiated by the use of the word tenement, in addition, even if it were of doubtful import, standing alone.

There is no error in the judgment of the court below, and it is hereby affirmed.


text:
    JOHNSON vs. ROBERTSON & WIFE.
    1. Where a scandalous imputation affects tho accused, in his office, profession or business, an action of slander will lie without averring special damage.
    2. Saying of a physician, “he has killed the child by givingit too much calomel,” is actionable.
    3. To charge a person with having killed another, without explaining or limiting the words, imports an accusation of murder, and isactionablc.
    4. Where words are actionable, in themselves, the law implies damage, and the action is allowed not only to compensate for pecuniary loss, but to afford redress for wounded feelings and prostrate reputation.
    5. Where words are actionable, in themselves, it is not necessary to lay special damages, and no evidence of special damage can be received, unless specially averred.
    6. An averment, that certain-persons who are named, “ and divers other persons, would otherwise have employed the plaintiff,”— is not sufficient to authorise proof of special damages, by others than those specially named.
    7. Though a plaintiff may enhance damages by proof of special damages, it does not follow, that the jury are confined, in estimating the damages, to the pecuniary loss proved; — they may compensate the injured party, taking into consideration, not only his pecuniary loss, but all the circumstances of the case.
    8. A witness cannot be asked, in slander, if he knows of other persons refusing to employ plaintiff, by reason of the slanderous words spoken, — than those mentioned in the declaration.
    Error to the Circuit court of Lowndes.
    Slander, tried by Harrís, J.

      This was an action of slander, brought by tiie plaintiff in this court, against the defendants, for slanderous words spoken by the wife.
    The declaration contained eight counts. To all the counts, except the second, a general demurrer was filed, which were sustained by the court.
    The second count differed from the other counts contained in the declaration, .in this ; — that it contained an averment, that in consequence of the speaking and publishing of the woi ds alleged to be slanderous, certain persons, mentioning their names, who otherwise would have employed plaintiff as a physician, had refused to employ plaintiff.
    Issue, on the plea of not guilty, being taken on the second count, the jury found a verdict for the defendants.
    On the trial of the cause, a bill of exceptions was taken, from which it appeared, that the plaintiff offered to prove by a witness, that other persons than those named in the declaration, had refused to employ the plaintiff as-a physician, by reason of the words spoken ; which was refused by the court.
    The plaintiff also asked a witness, if he knew of any person refusing to employ the plaintiff, by reason of the words spoken; which question was objected to, and the objection sustained by the court.
    The plaintiff moved the court to instruct the jury, that if he had proved any damages, the jury might give vindictive damages; which the court refused, and instructed the jury, that the measure of damages was limited to the extent of the injury proved to have been received: to which, exceptions were taken. These matters were assigned for error.

      Phillips, for plaintiff in error.

      James B, Clarice, contra.
   ORMOND, J.

— The judgment of the court below, sustaining the demurrers to the first, third, fourth, fifth, sixth, seventh and eighth counts of the declaration, cannot be sustained. The slanderous words charged in the four first counts of the declaration, are, in substance, “he (meaning the plaintiff,) has killed the child by giving it too much calomel;” which words, it is alleged, were falsely and maliciously spoken of the plaintiff as a physician, and in the way of h-,s profession and business, in his attendance upon the infant child if the defendant.

The only objection now made by counsel, to the counts which were demurred to, is, that the words are not slanderous. This is certainly incorrect, when the scandalous imputation affects the person accused, in his office, profession or business. An action of slander will lie, without averring any special damage; which is the form of the counts we are now considering. Scarcely any thing can be conceived, better calculated to injure a physician in his practice, than to acense him of killing his patients. The inevitable inference is, that he is grossly ignorant of his profession, or neglectful of his patients. If these words do not include a slanderous imputation, when spoken of a physician, it is difficult to imagine what words would be sufficient.

The remaining counts of the declaration, charged the defendant with having “ kil'ed the child ;” meaning, that the child, who was then dead, had been killed and murdered by the plaintiff. The words are slightly varied in some of the counts, but, in substance, they are the same. It is not alleged, that they were spoken of ■ the plaintiff as a physician.

To charge a person with having killed another, without any accompanying words, explaining or limiting the meaning of the words, imports an accusation of murder ■ —(See 6 Bacon, 207, and Chandler vs. Holloway, 4 Porter’s Rep. 17) — and are, of course, actionable.

The judgment of the court, therefore, sustaining the demurrers to each of the counts of the declaration, except the second, was erroneous.

The court also erred, in charging that the plaintiff could not recover damages, beyond the extent of the injury he had proven he had received by the slanderous charge.

It is true, as urged by the counsel for the defendant in error, that, in this action, the measure of damages is the extent of the injury received by the person slandered: but this he is not required to prove. When words are slanderous in themselves, the right to damages follows, as a consequence, from the speaking of the slanderous words; because, it is the inevitable tendency of slander, to injure the person slandered, in his reputation, profession, trade or business. It would frequently be difficult to prove any pecuniary injury from the slander, and always impossible to establish its full extent. Besides, the action is allowed not only to compensate for pecuniary loss, but to afford some redress for wounded feelings and prostrate reputation. Therefore, when words are actionable in themselves, the law implies damage.

The words being actionable in themselves, it was not necessary to lay special damage; but no evidence of special damage can be received, unless specially averred in the declaration. The averment, in the second count, that certain persons who are named, “ and divers other persons, who would otherwise have employed the plaintiff in the way of his said profession and business,” is not sufficient to authorise proof of special damage, by others than those specially named. But though the plaintiff may enhance the damages, by proof of special damage, it does not thence follow, that the jury are confined in estimating the damage, to the pecuniary loss proved to have been sustained. The jury may give such damages as will compensate the injured party, taking into consideration not only his pecuniary loss, but all the circumstances of'the case.

There was no error in the court’s refusing to permit a witness to be asked, whether he knew of any person refusing to employ the plaintiff, by reason of the words spoken. If the knowledge of the witness was derived from hearing such persons assign their reasons for not employing the plaintiff, it is open to the objection, of being hear-say testimony. If he inferred it from their conduct, they alone could explain the motives which influenced them. It is also obnoxious to the further objection, that it does not appear that the persons referred to, were those named in the declaration; and, if not, they could not themselves have testified.

The judgment must be reversed, and the cause remanded for further proceedings, in conformity with this opinion.

GQLDTHWAITE, J., not sitting' in this case.


author:
COLLIER, C. J.
      GOLDTHWAITE, J.

text:
    DEAN vs. FAIL.
    1. Matter admissible under a plea oí liberum tenementum,, may be given in evidence under the general issue.
    '2. The object of a plea of liberum tenementum, is usually to compel plaintiff to assign the place in which he alleges the trespass to have been committed, with greater precision.
    3. Where one rents land, for the purpose of making a crop, upon the condition that he is to give up possession in case the owner sells to a third person, before the crop is made; — it is not competent for the tenant, in case a sale is made, to object, that the contract oi sale is not evidenced by a deed conveying a perfect title.
    [I. The lessee of one who has neither possession nor legal title, cannot justify a trespass committed upon a party, in possession of the premises.
    2. To justify an entry on the possession of another, he who enters-must have a legal right of entry; or should eiiter under the license or command of one having such legal right.

    3. In trespass quare clausum fregit, evidence which makes out a case of justification, is only admissible under the general issue. Goldthwaite, J., in dissenting

    Error to the Circuit court of Wilcox.
    Trespass quare clausum fregit, tried by Pickens, J.
    Plea, not guilty. Verdict and judgment for defendant.
    The plaintiff in error declared against the defendant, in the Circuit court of Wilcox, in trespass quare clausum fregit, and went to trial on an issue taken on the plea of “ not guilty.”
    On the trial, the presiding judge, at the request of the plaintiff, sealed a bill of exceptions; from which it appeared to have been proved, that “ Jonathan Kennedy owned the tract of land on which the trespasses mentioned in the declaration in said canse were committed ; and that said Kennedy had rented said land in the spring, A. D. eighteen hundred and thirty-five, to said Dean, to make a crop, on condition, that if said Kennedy sold said land, said Dean should quit it; and that by virtue of said renting, said Dean had taken possession of said land, and worked there about five days, when he was dispossessed by said Fail. It was further proved, that said Kennedy had made a contract for the sale of said land, and had received a large portion of the consideration, some time-in the spring of said year eighteen hundred and thirty-five, with one Rives, and had told said ÍUves to go and take possession of said land. But it was not proved that said Kennedy had ever demanded possession of said land from said Dean; and it was further proved, that before any deed of conveyance of said land had been signed between said'Rives and said Kennedy, the said contract was rescinded, but that said Rives had rented said land to said Jeremiah Fail, before the recision of said contract of sale, and by virtue of said renting, said Fail had dispossessed said Dean of said land, and kept possession of it for the remainder of said year. In said cause, the judge that presided, instructed the jury, that if they believed ■ sail Fail had committed the supposed trespass in the declaration in said cause mentioned, and dispossessed said Dean of said tract of land, prior to the recission of said contract of sale, between said Rives and said Kennedy, they ought to find a verdict for said Fail.” To all which, the plaintiff excepted, &c. and now presented to this court, the questions of law arising upon the bill of exceptions for revision.
   COLLIER, C. J.

— It was not competent for the plaintiff to object, that the contract of sale by Kennedy to Rives, 'was not evidenced by deed, conveying a perfect title. The agreement between Kennedy and the plaintiff, was, that the latter should occupy the land, (on which the trespass is alleged to have been committed,) for the pur-" pose of raising a crop thereon, with.this condition, that if the former should sell, the plaintiff would relinquish the possession. Tlie bill of exceptions does not inform us how far Kennedy and Rives had advanced towards a consummation of title under their contract, so that there may (for any thing appearing to the,contrary) have been such written evidence of their contract, as would have authorised equity to enforce its completion, had either party objected.

But it is quite immaterial to the present inquiry, whether the agreement for a sale was such as could have been coerced. Objections to its validity concerned the parties themselves, and it was not for a stranger to supervise their contract, and shape his course according as he might adjudge it to be obligatory or not. The contracting parties might execute it, under a sense of honor, moral duty to each other, or mutual interest, and it . would be as valid from that period, as if it had been perfect in its inception. So far, then, as we are able to form an opinion from the proof in the record, the event on - which the right of the plaintiff to occupy the land under his agreement with Kennedy was to cease, did actually happen, as soon as Kennedy sold to Rives, with a right to the immediate possession.^ Kennedy might have brought his action.against the plaintiff, had he refused to quit, and, as a necessary consequence, may have au-thorised Rives to enter ; and this right, thus acquired by Rives, would extend to legalise an entry by his agents and servants, in obedience to his directions. It will, therefore, follow, that if the defendant entered under the authority of Rives, upon the possession of the plaintiff, he committed no trespass : unless, the manner of his taking possession, or subsequent acts, make him a trespasser.

No objection seems to have been raised in the Circuit court, to the admission of the evidence, yet, as the question comes up on the Instructions to the jury, it may, under the state of the pleadings, be well to consider it. The facts, when simplified, amount to proof of title in a third person, and the right to possession in the defendant himself.

There is no necessity for pleading liberum tenementum specially. The object of such a plea, usually, it is said, is to compel the plaintiff to assign the place in which he alleges the trespass to have been committed with greater precision—(Stevens vs. Whistler, 11 East, 51); and the defendant may give the matter admissible under such a plea, in evidence under the general issue— (Peake's N. P. 67; Willes' R. 222; Derisley vs. Neville, 1 Leon’s R. 301; Garr vs. Fletcher, 2 Starkie’s Cases, 71; Gilb. Ev. 258; Chambers vs. Donaldson, 11 East’s R. 72.)

In Argent vs. Durrant, (8. T. R. 403,) the point came directly before the court, when Lord Kenyon, in pronouncing his opinion, observed, “ It is now too late to discuss this question, which appears to have been settled in Lord Coke’s time, in a case in 1 Leon, 301. In trespass, ‘the defendant pleaded not guilty; and if he might give in evidence, that at the time of the trespass, the freehold was in such an one, and he, as his servant, and by his command, entered, was the question ; and it was said by Coke, that the same might so be well enough; and so it was adjudged in Trevilian’s- case; for, if he by whose command he entereth, hath right at the same instant that the defendant entered, the right is in the other, by reason whereof, he is not guilty as to the plaintiff; and judgment was given accordingly.’ Conformably to this doctrine, I have always understood that it has been the practice, to permit the defendant to give liberum tene-mmtum, in evidence under the general issue.” (To the same effect, is Dodd vs. Kyffin, 7 T. R. 354; Van Buskirk vs. Irving, 7 Cowen's R. 35; and Tuthill vs. Clark, 11 Wend. R. 642.)

There seems to have been no controversy in the Circuit court in regard to the evidence: the facts disclosed in the bill of exceptions are said to have been proved. We understand, then, that the verdict of the jury was influenced by the instructions of the court, on the solitary legal question, whether Kennedy’s sale gave a right of entry and possession, as against the plaintiff. On this point, our opinion is expressed already; and if Kennedy was entitled to enter, as against the plaintiff, either Rives or Fail might successfully defend themselves under his authority; from which, it follows, that the judgment must be affirmed.

GOLDTHWAITE, J.

— I am unable to concur in the judgment of the court now pronounced.

If the defence attempted, can be permitted under the plea of the general issue, it is material to enquire, whether the evidence made out a case of justification. To justify an entry on the possession of another, one of two things must exist he who enters, must have a .legal right of entry, or should enter under the license or command of some one having such legal right. In the present case, it seems to me, that Fail, the defendant, had no legal right, nor did he enter by the command or license of Kennedy, who had. If we test the evidence by a special plea, it would be stated, that the defendant entered the close in question, having legal title to the same, or that Kennedy had such legal title, and the entry was made by his license or command.

The evidence certainly would not support a plea, framed under the supposition that a legal title was in him, for his lessor neither had the possession, nor the title to the land. If the plea contained the averment of a license or command from Kennedy to enter, the party would fail in his defence, because no such command or license is shewn from the evidence. The permission of Kennedy to Rives, was neither a command or license to Fail to take the possession. This will be evident, if we suppose some act done by Fail in taking possession, which, independent of the trespass on the land, would have constituted him a tort feasor. Would Kennedy have become liable to Dean, in consequence of the authority given to Fail 1 I think he could not be made liable under the evidence, as no authority can be. implied from the circumstances of this case.

The Circuit court seems to have considered, (at least such is the inference I draw from its charge,) that a right of entry was conveyed to Rives, by the contract of sale, independent of any conveyance by which the title passed, and that this, was conveyed to Fail by the ease to him. Whether it is considered in this, or the other view which I have taken, there was, in my judgment, an error committed* as in neither event could Fail be justified under the circumstances disclosed.


author: COLLIER, C. J.

text:
    EVANS vs. SANDERS.
    1. In the construction of written contracts, the intention of the parties, as ascertained fr< m the terms and the subject matter, determines the meaning.

      2. And, in questions of doubt, the contract is to be construed most strongly against the party who stipulates the payment of a debt, or the performance of ■ a duty.
    3. Where the terms of a contract are susceptible of two significations, they must be understood in the sense most agreeable to the nature of the contract: — and where a clause is susceptible of different constructions, it must be taken in the sense that will give to it some operation, rather than that which will have none.
    4. Where one promised by a written contract, to pay money on the first day of January, eighteen hundred and thirty-six, with interest from eighteen hundred and thirty-five; it was held, that the intention of the contracting parties, was, that interest was to be paid from the first day of January, eighteen hundred and thirty-five.

      Error to Wilcox Circuit court.
    Assumpsit on note, tried 'by Judge Pickens.

    The defendant in error, brought an action of assump-sit against the plaintiff, in the Circuit court of Wilcox, on a promissory note of the following tenor: “ $1243 83.

      “ Wilcox county, So. Alabama, 20th December, 1834. On first January, eighteen hundred and thirty-six, (with interest from 1835,) I promise to pay Moses Sanders, or bearer, twelve hundred and forty-three dollars, and eighty-three cents, for value received.
    (Signed,) Harris Smith Evans.”
    Tfie only point made by the assignment of errors, arose out of a bill of exceptions, which was taken at the trial, to the charge of the presiding judge, in instructing the jury, that interest was recoverable on the note sued on, from the first day of January, eighteen hundred and thirty-five.

      Stewart, for plaintiff in error.
   COLLIER, C. J.

— It is an acknowledged rule, in the construction of written contracts, that the intention of the parties, as ascertained from its terms, and the subject matter, determines its meaning—(See Pothier, part 1, c. 1, s. 1, art. 7; Davis et al. vs. Barney, Harris & Gill, 382; Harper vs. Hampton, 1 Har. & Johns. R. 672; ibid. 658 and 661; Fallow vs. Martin, Harper’s So. Ca. R. 410.)

■ So, in questions of doubt, it is equally well settled, that the contract is to be construed most strongly against the party who stipulates the payment of a debt, or the performance of a duty — (Pothier, ut supra; Judkins et al. vs. Earl et al. 7 Greenl. Rep. 9; Withers vs. Thompson, 4 Monroe’s Rep. 329; Kimball vs. Cunningham, 4 Mass. Rep. 502; Conner vs. Henderson, 15 Mass. Rep. 319.)

Again: where the terms of a contract are'susceptible of two significations, we ought to understand them in a sense, which is most agreeable to the nature of the contract ; and where a clause is susceptible of different constructions, it should be takén in that sense ..which will give to it some operation, rather than that which will have none—(Pothier, ut supra; Falcon, adm’r, vs. Harris, 2 Hen. & Munf. R. 550.)

The.contract, in the case' at bar, it is admitted, is in an unusual form, and so expressed, as to require an application of the rules of construction. Without attempting any thing like an abstract critical examination of the word “ from,” which we are not quite sure would lead to the conclusion, that, when used in connection with time, always means' after the period has ■ transpired, we are satisfied, that it cannot be thus interpreted, in the present case. What effect would the terms, “ from 1835,” have, were we to take them as expressing after the determination of that year ? The legal effect of the plaintiff’s undertaking, independent of such a clause, would have subjected him to the payment of interest. The parties cannot be supposed to have used words, without any definite meaning in view ; and there is no pre-tence for saying that they contemplated an intermediate period, between the first of January, eighteen hundred and thirty-five, and of January, eighteen hundred and thirty-six. So, that the only interpretation which, in our judgment, is authorised by the rales we have laid down, and will effectuate the intention of the parties, is, to give interest from the first of January, eighteen hundred and thirty-five. There is, then, no error in the judgment of the Circuit court, and the same is affirmed.


text:
    TERRY vs. FERGUSON, adm’r.
    1. A tenant, who has enjoyed the possession of land, without interruption, for the entire period of his iease, cannot be allowed to avoid the payment of rent, by shewing a defect oí title in his landlord.
    2. A purchaser cannot resist the payment of the purchase money, for defects in the vender’s title, when he has taken pos-sesion of, and remains in the quiet enjoyment of the premises.
    3. Nor can a tenant, in ejectment, be permitted to shew that his landlord had no title at the time of making the lease — though, perhaps, he may prove that his landlord’s title has since that time expired.
    4. And the purchaser of a personal chattel has been inhibited, while holding possession, from resisting the payment of the purchase money, by alleging a want of title in his vendor— therefore;
    5. Where one accepted a lease from an administrator, and undertook to pay him rent, he was not allowed to object a want of title in the administrator.
    6. An administrator is not required to exercise a control over the real estate of his intestate, — yet, if he assume to lease it, he will hold the rent in trust for those legally entitled,

      Error to the Circuit court of Pickens.
    Assumpsit for rent of land.
    The defendant brought assumpsit against the plaintiff, in the Circuit court of Pickens, for the recovery of rent, which the second count in the declaration alleged that the plaintiff had assumed and promised to pay to the defendant, in consideration that he (as administrator of the estate of Bryant Ferguson, deceased,) had allowed him to occupy a parcel of land belonging to the estate of his intestate, situate in the county of Pickens. The case was tried on the plea of non-assumpsit, and an issue on the plea of tender. In answer to which, the jury returned a'verdict for the defendant in error, and judgment was rendered accordingly. To review the proceedings in the Circuit court; the case was brought here by writ of error; and the error assigned was, that an administrator had no right to rent the land of his intestate’s estate.
    Porter, for plaintiff in error.
   COLLIER, C. J.

— It is an old and well settled rule of law, that a tenant who has enjoyed the possession of land, without interruption, for the entire period of his lease, shall not be allowed to avoid the payment of rent, by showing that his landlord’s title was defective, or that he had no title—(See Perkins vs. the Governor, Minor’s Rep. 352.) So strict and unbending is the law in this respect, that'it has been often holden, that a purchaser of land cannot resist the payment of the purchase money, for defects in the vendor’s title, when he has taken possession, and remains in the qukt enjoyment of the pre-m'ses—(See Christian vs. Scott, 1 Stew. R. 490, and Wade vs. Killough, 3 Stew. & Por. Rep. 431, and cases there cited.) Nor, when sued in ejectment, will the tenant be permitted to show that his landlord had no title at the time of making the lease, though perhaps he may prove that his landlord's title has since that time expired— (Heckart vs. McKee, 5 Walts’ R. 385; Jackson vs. Rowland, 6 Wend. R. 666; 2 Caine’s R. 210; 7 Johns. R. 324; 19 Johns. R. 77.) And the rule has even been carried so far. as to inhibit the purchaser of a personal chattel, while holding possession, from resisting the payment of the purchase money, by alleging a want of title in his vendor — (Ogburn vs. Ogburn, 3 Porter’s R. 126.)

The second count of the declaration does not disclose an implied promise, resulting from a permission to use and occupy, but the promise is express, and the relationship of landlord and tenant distinctly shown. It is clear, 'that the duties of an administrator do not require, or even authorise him, in the ordinary course of administration, to exercise a control over the real estate of his intestate; yet, if he assumes to lease it, he will hold the rent in trust for those legally entitled. We lay no stress upon the fact, that the judgment was rendered on verdict, nor attempt to draw to its aid the doctrine of intendment, which, if necessary, might perhaps be successfully invoked ; but the declaration alleging a state of facts which show the plaintiff accepted a Lease of the defendant, and undertook 'to pay him rent, — we think the former cannot object a want of title in the latter. ’ The judgment must be affirmed.


text:
    SMITH & MARCH vs. PAUL.
    1. A declaration against defendant, as drawer of a bill, which does not allege presentment lor paymeut, and notice of refusal, is not a defect available in error.
    2. Where one draws a bill on himself, and accepts it, and is after-wards sued as drawer, in default of payment — he will be liable, without notice of non-payment, as it was his duty to provide for the payment of the bill, — and he must have had knowledge that it was unpaid.
    3. Where a judgment is entered up for more than the amount due, a motion by a defendant for a new trial will be refused, on condition that plaintiff remit the excess.
    4. And, in such a case, if the clerk issue execution for more than the amount due on the judgment, the remedy is to supersede the execution.
    Error to Tuscaloosa Circuit court.
    Assumpsit on bill of exchange, tried by Judge P. Martin.

    This was an action of assumpsit, brought by the defendant in error, as endorsee of a bill of exchange,, against the plaintiffs in error.
    The declaration was in the following words:
    “ State of Alabama:
    “In the Circuit court, March term, 1838. Tuscaloosa county, to wit; James Pau1, plaintiff, by his attorney, complains of Thomas A. Smith and Thomas C. March, partners, under the firm of Smith & March, defendants in custody, $*c. of a plea of trespass on the case on promises, &c. For that whereas the said defendants here-tofo re, to wit, on the first day of January, in the year eighteen hundred and thirty-seven, at Tuscaloosa, to wit, in the county aforesaid, made a certain bill of exchange in writing, dated the day and year aforesaid, and directed the same to Smith & March, Tuscaloosa, and thereby requested said Smith & March, twelve months after the date of that first of exchange, (second of the same tenor and date unpaid,) to pay to the order of Willis Banks, the sum of five thousand 68-100 dollars, negotiable and payable at the branch of the Bank'of the State of Alabama, at Mobile, for value received; which said bill of exchange was afterwards, to wit, on the day and year aforesaid, presented to the said Smith & March, the said defendants, for acceptance, and by them accepted ; and the said Willis Banks, to whom the sapne was payable, afterwards, to wit, on the day and year aforesaid, endorsed the same to John J. Webster, who then and there endorsed and delivered the same to the plaintiff, and thereby ordered and appointed the contents to be paid to the said plaintiff. Yet, the said defendants, although often requested so to do, have not yet paid the said sum of money to the said plaintiff, but so to do have hitherto wholly neglected and refused, to the plaintiff’s damage ten thousand dollars; and therefore, suit, &c.
    G. W. Crabb, Att’y for plaintiff.”
    To which the defendant pleaded non-assumpsit. There was a verdict and judgment for plaintiff below.
    The defendants below moved for a new trial; which motion was overruled, on the plaintiff’s agreeing to enter a remittiter for the sum of seven hundred and ninety-two dollars, and fifty cents.

      From this judgment, the defendant below prosecuted a writ of error, and assigned as reasons for reversing the judgment—
    1. That the declaration did not state notice to the defendants below, of the refusal of the acceptors to pay, the action being against the drawer of a bill which was accepted ;
    2. Because the action being against defendants below, as drawers of an accepted bill, they are not liable to an action, unless in default of the acceptors, which is not shown; ■
    3. Because the declaration did not state protest of the bill for non-payment;
    4. Because no final judgment could be rendered, and execution awarded; a new trial having been granted.

      Porter, for plaintiff in-error.

      Stewart, contra.
   ORMOND, J.

— The argument, in this case, is founded on the supposition, that the declaration is against the plaintiffs in error, as drawers of the bill of exchange on which the action is founded, and that the failure tb allege presentment for payment and notice of refusal, is a defect available on error. If the assumption were correct, the defect would be cured, after verdict, by the statute of Jeofails. But, on looking into the declaration, it is quite clear, that the defendants are charged as acceptors. ' The averment in the declaration is, that the defendants (plaintiffs in error) drew the bill on themselves, and accepted it; and if it were true, that .they were charged as drawers of the bill, in default of payment, they would be liable, without notice of non-payment, as it was their duty to provide for the payment of the bill, .and they must have had knowledge that it was unpaid. The reason of the law, in requiring notice, fails, in such a case—(See Chitty on Bills, 355, and cases there cited.)

The last assignment of error is not sustained by the record. The motion for a new trial is refused, on condition that the plaintiff below enter a remittiter, which, from the record, it appears the plaintiff agreed to.— Should the clerk issue execution for the whole amount of the judgment, the remedy would be, to supersede the execution.

The judgment is affirmed.


text:
    TEAT vs. LEE, adm'r.
    1. In distributing an estate, where parties in interest will not, or are incapable of consenting to an adjustment, the administrator should obtain permission to sell so much of the estate, as will enable him to make an equal division.

      2. The statute (Aik. Dig. 155,) delegates power to the judge of the County court, where the parties cannot agree, to ascertain, by testimony, th value of property brought into hotchpot, as a judicial officer; orto cause a jury tobe impanneled for that purpose. It is error, therefore, ior commissioners to make the valuation, or for the court to confer authority to that effect.
    3. The law no where authorises the rendhiou of decrees, and the award of execution thereon against distributees, for balances against them on distribution.
    Error to the County court of Lowndes.
    Decree for equalising distribution.
    In this case, the Orphan’s court appointed commissioners to divide the personal property — the estate béing clear of debt. They were ordered to value advancements under the law of hotchpot. The commissioners divided the estate, and charged the plaintiff with seven hundred and ninety-two dollars, and seventy cents, to be paid to the administrator, for the purpose of making the shares of the other heirs equal to that of plaintiff.
    Upon this report, judgment was rendered in favor of the administrator for that amount, and execution ordered. There was no final settlement or division of the estate.
    Plaintiff in error assigned — ■
    1. The court had no power to appoint commissioners to divide the estate brought into hotchpot. The commissioners could not value the advancements..

      2. The division of the estate ought not to have been sanctioned by the court, because it did not make an equal distribution of the effects.
    , 3. There was error in charging the plaintiff in error .with the sum of money specified, in favor of the other heirs, to make them equal.
    4. There was error in rendering judgment and execution for the sum specified, against plaintiff in error, and in favor of defendant; and also for charging plaintiff in error with costs.

      Cook, for plaintiff in error.
   COLLIER, C. J.

— Three points have been made upon the record, in this case.

First — It is insisted that the Orphan’s court should not have approved of the division and distribution of the estate of the defendant’s intestate, because it is unequal.

Second — That the advancements of the distributees brought into hotch-pot, have not been valued in the manner the law directs.

Third — There is no law which authorised the rendition of a final decree and award of execution against the plaintiff, as one of the distributees, for an excess of intestate’s estate (beyond his share) received on the distribution.

1. We are not aware of any law which would coerce a distributee to receive a larger portion in value of his intestate’s estate than his distributive share, and thus become chargeable to the administrator for the excess. In distributing an estate, consisting of slaves and other personal property, it is difficult so to equalise a division, that none of the distributees shall be better provided for than the others. To prevent all controversy, in such a case, where the parties in interest either will not, or are incapable of consenting to an adjustment, the only legal' course seems to be, for the administrator to obtain permission to sell so much of the estate as will enable him tomake an equitable division— (Aik. Dig. s. 12, p. 155.)

2. By the second section of the act of eighteen hundred and twenty-eight, entitled “ an act concerning the estates of deceased persons,” it is enacted, that “ when one or more of the heirs of any deceased intestate, shall have received property of the ancestor in his life time, and shall wish to bring the same into hotchpot, and the parties cannot agree as to the value of such property, the same shall be ascertained by testimony, and affixed by the judge of the County court of the county, where letters testamentary or of administration shall have been granted ; and it shall be his duty to do so, on the application of any person concerned in interest, on due nqtice to the other persons interested; and the said judge may, at his discretion, empannel a jury to assess the value"of the property in question; and on-the application of either party for a jury, it shall be the duty of the judge to cause the same to be empanneled; and in all cases, the value of the property at the time it was delivered, shall be fixed by said judge or jury, as the case may be; and the value so fixed, or the value agreed upon by the parties, shall be deducted from the share of such heir£or heirs” —(Aik. Dig. s. 16, p. 155, 156.)

In the case before us, we are informed by the record, that four o-f the five commissioners appointed by the Orphan’s court, to divide and distribute the personal estate of the defendant’s intestate, ascertained the value of the advancements of the several distributees brought into hotchpot. In doing this, it is conceived that the commissioners transcended the legal duties of their office, not the less, because, the court appointing them, undertook 'to confer such an authority. The statute, itself, delegates the power to the judge of the “County court,” as a. judicial officer, and does not authorise him to substitute others to act. in his stead, except so far as it permits him, in his discretion, to cause a jury to be impanneled; In departing, then, from .the course-of procedure prescribed by the law, we think there is error in the pro-" ceedings. of'the Orphan’s court.

- 3. In rendering a decree, and directing the issuance of an execution against the plaintiff, tiré Orphan’s court exceeded its authority, for the law is entirely silent in such a case. .The act of eighteen hundred and thirty, “ to extend the powers of the County and Orphan’s court in certain cases, and for other purposes,” declares,.that “all decrees made by the Orphan’s court, on final settlements oh the accounts of executors, administrators and guardians, shall have the force and effect of judgments at law, and-executionsmay issue thereon, for the collection of the several distributive amounts, against such executor, administrator or guardian — (Aik. Dig. s. 37, p. 252.) This act, it is clear, does not extend to authorise the rendition of decrees and the award of executions thereupon, against distributees for balances against them on distribution ; yet, it is the only statute which affords the semblance of aid, to legalise the proceeding before us.

In every view in which the case has presented itself to us, we think the decree of the Orphan’s court is erroneous, and it is therefore reversed.


author: GOLDTIIWAITE, J.-

text:
    THE STATE vs. WISDOM.
    1. The general rule on the subject, of permitting testimony to be given of matters not alleged, is, that nothing shall be given - in evidence which does not directly tend to the proof or disproof of the matter in issue.
    2. On an indictment for stealing a slave, evidence is not admissible of conversations, held by the prisoner, with other slaves, eighteen miles from the place where the offence is charged to have been committed.
    3. Though the fact, that such prisoner was at a particular place, not far distant from the point where the crime was perpetrated, might be shewn, m order to trace him, step by step, to the place where the larceny was committed.
    4. But evidence of any act, by the prisoner,-or his general conduct, not connected with the crime, should not be received.
    5. Evidence offered by a prisoner, of his assertion of a claim to property stolen, when he was arrested, cannot be received— such a claim must be asserted before, or at the taking, to enable the defendant to give evidence of his own declaration, and the hona lides of the assertion, is for the consideration of the jury.
    6. An instrument of writing, produced in pursuance of notice to • that effect, may beiead by the party who has required the production; but if he does not choose to give it in evidence, the mere notice will not have the effect to allow the party in whose possession it has been, to read it without proof.

      7. The stealing of a slave, cannot be established in any other or different manner, than the stealing of any other chattel endowed with volition, and the power of locomotion. Nor can ^an individual commit larceny in one county, who is at the time of its commission in another, and who is not near enough to assist those who are active in its perpetration.
    8. An individual to whom a slave is hired, is pro hac vice the owner of the slave, during the term for which he is hired, and may be described as such, in an indictment for stealing the .slave; but the insertion of the true owner’s name, in an indictment, will not render the pioof irrelevant. The indictment may be supported, by proof of possession by the person hiring the slave.
    9. There is no repugnance, in charging the ownership cf the slave in different persons, in different a unts of the same indictment.
    Indictment for negro stealing, tried before Harris, J.
    The prisoner'was indicted for negro stealing, ata térm of the Circuit court of Dallas county : on his application, the venue was changed to Wilcox county, where he was tried, convicted, and sentenced to death, by the Circuit court of the latter county. Several questions were reserved by the presiding judge, for the consideration of this court, which may be stated in the following order:—
    . 1. A witness was introduced on behalf of the State, who testified, that about the first of April, a few days before the larceny charged in the indictment was committed, he saw the prisoner on several different days, at Athens, in Dallas county, about eighteen miles distant from the place from whence the negro was stolen: that the prisoner was a stranger there, and had no apparent or ostensible business: that he saw the prisoner, on one occasion, holding a long conversation with a negro slave belonging to the witness, whilst no. white person was present, and that when the witness went to the place where the prisoner and the slave were conversing, the former ceased the conversation with the slave: and that he also saw the prisoner, on another occasion, holding a private. conversation with another slaye, in the same • town, shortly after.
    This evidence was objected to by the prisoner; but his objection was overruled.
    2. Another witness, on behalf of the State, testified/ that after the negro charged to have been stolen, ’had been some time missing, he traced him to Mississippi; and found him at a mill belonging to the prisoner;, about eight miles distant from1 which, he found the prisoner himself. There was no evidence adduced on the part of the State, either of the* acts or declarations of the prisoner, when he was arrested. The prisoner’s counsel then proposed to ask the witness, if, when he was arrested, the prisoner did not claim the negro as his own property, and whether he did not then produce a bill of-sale, made by one John Martin, to him.. The court refused to permit these questions to be answered. The prisoner’s counsel then proposed to offer in evidence the said bill of sale, without producing any proof of its authenticity : but the court refused to permit it to be given in evidence. It was then shewn, that the prisoner had received notice, from the solicitor, to produce said bill of sale on this trial. The court then ruled, that as the State had not offered the- bill of sale as evidence, and as no facts or circumstances were shewn, relative to its authenticity, the prisoner could not give it in "evidence.
    3. A witness testified, on behalf of the State, that the prisoner, about'the ninth day of April, eighteen hundred and thirty-eight, between ten and eleven o’clock in the day, was discovered by him near where the negro slave, Dick, was at work, about sixty feci from him: the prisoner was on a horse, apparently turning off from the place where Dick then was: that the prisoner then immediately went to a field, about three hundred yards distant, where a negro slave, named Peter, (who was stolen at the same time,) was at work, and rode up. to the fence, near where Peter was: the "negroes were missing about eight o’clock of the night of the same day. Another witness testified, i! at some time in the spring, of the year, eighteen hundred and thirty-eight, the prisoner arrived about eight o’clock in t e morning, at his house, which is about forty mile? distant from Cahawba, and in Perry county: that the prisoner had two negroes with him; one of them was the slave Dick, and the other the witness described, as other w'tncsses described Peter. There was no evidence that the prisoner was seen with the negroes in Dallas county, after ten or eleven o’clock of the day of the night during which they left Cahawba. The prisoner’s counsel requested the court to charge the' jury, that unless they believed the prisoner was in company with the negroes in Dallas county, at the time, or after they left Cahawba, he could not be indicted in Dallas county, and therefore, they should acquit him. The court refused to give this charge, but instructed .the jury, that if they believed the prisoner had concerted with the negro, to go oil' with him to Mississippi; and the negro, in pursuance of such concert, had left the possession of his master, and was then under the direction, and was acting’under the control of the prisoner; they were au-thorised to infer, (ho negro was in his possession from the time he left the possession of his master, although the prisonej’ might have been in Perry county.
    4. James M. Lenoir testified, that the negro, Dick, mentioned in the hill of indictment, was the property of Matilda Lenoir : that he was her guardian, and that at the time .when *the larceny was committed, the negro was hi#ed to Charles G. Edwards.
    5. The prisoner moved to quash the indictment, because the counts were repugnant to each other, in charging the slave to belong to different individuals; it being stated in one count, as the property of James M. Lenoir; in ¿mother, as the property of Matilda Lenoir; and in a third, as the property of-Charles G. Edwards; which motion the court overruled.

      Attorney General, for the State.
   GOLDTIIWAITE, J.-

-The correctness of thq several decisions made by the Circuit court, on the questions reserved by it, will be considered in the order in which they are presented.

1. The general rule on the subject of permitting testimony to be given of matters not alleged, is, that nothing shall he given in evidence, which does not directly tend to the proof or disproof of the matter in issue. A leading case, illustrative of tiiis principle, is cited in Philips’ Evidence, p. 170 — Upon an indictment for an infamous crime, an admission, by the defendant, that he had committed such an offence at another time, and with another person, and had a tendency to such practices, ought not to he received. Arehbold, in his treatise on Criminal Pleading, asserts, that, in fact, there is no exception to this rule in criminal cases, although there are some, which seem to. he so. It will be unnecessary to examine those cases which seem to present exceptions to this rule, as the one now to be considered, presents no claim to be classed as such. It is difficult to perceive, what other tendency, than to create a-prejudice against the prisoner, the proof that he was seen talking with other slaves, at the distance of eighteen miles from the place where the crime is charged to have been committed, could have. It certainly-did not, nor could, show his guilt in the particular transaction charged against him: If evidence'of this character is permitted to affect an individual, he ought to be allowed the chance to explain and controvert it, but this he never could be prepared to do, unless advised before the trial, of what was to be urged against him. The fact, that the prisoner was seen at Athens, a few days before the commission of the crime, was properly enough in evidence, as directly tending to shew, that he was in the same section'of the State where the crime was committed; and it might be important to trace him, step by step, from thence to the place of the larceny : but evidence of any act, or his general conduct, not connected with the crime charged, ought not to have been received. In a case otherwise doubtful, and depending purely on circumstancial evidence, a fact like the 011c detailed by the witness, might and would have a direct tendency to produce the most fatal coni equences, to the accused. The circumstance, in itself, is trivial and unimportant; hut connected with the charge laid in the indictment, ceases to he so, and would operate with fearful effect on a stranger. We cannot suppose, from the other facts which are detailed, that this evidence could have weighed a straw in the balance; but we are not sitting to determine the weight of the testimony, but to pronounce- the law as to its competency. It was improper evidence, and ought not to have been admitted., .

2. The evidence offered by the prisoner, of his assertion of a claim to the slave, when he was arrested, was properly rejected, as was also all the evidence touching the bill of sale. The- general rule, that one shall not be permitted to make evidence for himself, is familiar to every lawyer ; but the prisoners counsel supposes that the case of larceny creates an exception, as one who takes property under a bona fide caim of right, cannot be guilty of this offence. This claim of right must be asserted before, or at the taking, to enable the prisoner to. give evidence of his own declarations; and even then, the bona fides of the assertion, is always a subject for the consideration of the jury. To permit one, after the act committed, to give his own assertions in evidence to establish a claim, would, in most cases, defeat the ends of justice, if any reliance was placed on such assertions.

The notice given by the solicitor, to produce the .bill-bill of sale on the trial, did not authorise the prisoner to use it without proof. The rule as to the introduction of such evidence, is clearly, laid down by most elementary authors on evidence, and may he stated thus: If produced on the motion, it may be read by the party who has requested its production, but if he does not choose to give it in evidence, the mere notice will not have the effect to allow the party in whose possession it lists been, to read it without proof—(2 Starkie on Ev. 360.) A different rule would produce the result of making evidence, by the mere act of notice: and a false instrument might he introduced, which it would be difficult, if not impossible, to disprove.

¡\^y 3. The most important question presented, is the one arising out of the charge of the court. It assumes that the prisoner could commit a larceny in Dallas county, although he may not have been there when it was committed. The charge requested was, that unless the jury believed the prisoner was in company with the ne-groes in Dallas county at the time, or after they left Ca-hawba, he could not he indicted in Dallas county, and therefore, they should acquit.1” The instructions given were, “ that if they (the jury) believed the prisoner had concerted with the negro to go off with him to Mississippi; and the negro, in pursuance of that concert, had left the possession of the master, and was the* under the direction, and was acting under the control of the prisoner, they were authorised to infer that the negro was in his possession from the time he left his master, although the prisoner might have been in Perry county.” To determine whether these instructions were correct, resort must be had to the statute: this provides, “ if any person shall steal any negro or mulatto slave whatsosver, out of, or from the possession of the owner or overseer of such slave; the person or persons so offending, shall be, and are hereby declared to be felons, and shall suffer death.”

There is no new rule introduced by it, from which we can presume that the general assembly intended to provide that the stealing of a slave should be established in any other or different manner, than the stealing of any other chattel endowed with volition and the power of locomotion. Most of our sister States, possessing this description of property, have deemed it essential to the in.-' terests of their citizens, to make the inveigling or enticing slaves from their owners, high offences. It must be evident to all. that in many cases besides mere larceny, slaves may be wholly lost to their owners, by the acts or contrivances of others; and we cannot doubt the propriety of some amendment to our criminal code, in this particular. Our duty, however, is performed, when we decide on the laws as they exist, without suggesting alteration or change. To constitute larceny, there must not only be a taking, but a carrying away. A bare removal, however, from the place where the goods are found, though the thief does not make off with them, is a sufficient asportation or carrying away—(4 Blacks. Com. 231.) — As, for instance, if a man be leading another’s horse out of a close, and be apprehended in the fact. It must not be supposed, .that a literal interpretation is to he placed on the term, carrying away : if one entice a horse, hog, or other animal, by placing food in such a situation as to operate on the volition of the animal, and he assumes the dominión over it, and has it once under his control, the deed is complete: but. if we suppose him detected before he has the animal under his control, yet after he has operated on its volition, the offence would not be consummated. In the case of slaves, which not only possess volition, and the power of locomotion, but also intelligence, a further extension of the principle is called for, and must necessarily he introduced into the law of larceny, it cannot be supposed, that the legislature intended only to punish those who forcibly took possession of the slave, as well against his, as his master’s will: it was, without doubt, considered, that in many, perhaps most cases, the stealing would he effected by operating on the will of the slave. In such a case, actual control. at the Instant of stealing, would never be exhibited. The same' rules which apply to principals in the second degree, will, when examined, seem to afford the most direct analogies to cases of this description. It is not necessary that the party should he actually present, or even an eye witness of the transaction; he is, in construction of law, present, aiding and abetting, if, ' with the intention of giving assistance, he be near enough to afford it, should the occasion arise—(Foster, 347; Rex vs. Borthwick, 1 Doug. 207; Rex vs. Owen, R. & M. 96.)—but he must be sufficiently near to give assistance—(Rex vs. Stewart, R. & R. 363) — and the mere ^circumstance of a party going towards a place where a felony is to be committed, with intent to aid and assist in carrying off the property, and assisting in carrying it off, will not make him a principal in the second degree, unless at the time of the feilouious taking, he were within such a distance as to be able to assist in it—(Rex vs. Kelly, R. & R. 421.) And although an act be committed in pursuance of a previous concerted plan between the parties, those who are not present, or so near as to he able to afford, aid and assistance at the time when the offence is committed, are not principals—(Rex vs. Sears, R. & R. 25; Rex vs. Davis, ibid. 113; Archbold’s C. L. 4 a.)

If it is admitted, that the slave departed from the service of his master, in consequence of a concerted plan between the prisoner and himself, that the former might steal him, and that the latter would join him in Perry-county, the offence was not consummated until the prisoner was sufficiently near'the slave to aid him, if pursuit was attempted; or so near as to be capable of taking actual control over him; — if, then, his will consented to the act, the larceny would be, complete, and the prisoner subject to the punishment: until then, it could not be, because both the slave and himself might have repented; and the one have returned to his master, the other to his home.

Although the evidence was sufficient to warrant the strongest presumptions that the prisoner was with the slave in Dallas county, and could perhaps only be satisfactorily rebutted by establishing an alibi, the law does not authorise the charge given, because an individual cannot commit a larceny in one county, who is, at the time of its commission, in another, and, who is not near enough to aid and assist those who are active in its perpetration.

4. The next question is not very distinctly presented; it seems, however, to be this: whether the possession of one to whom a slave is hired, is the owner, within the meaning of the term, as used in the statute. Such an individual is pro hue rice the owner of the slave-, during the time for which he is hired, and may therefore be described as the owner. But we by no, means wish to be understood as deciding, that, in such a case, the insertion of the true owner’s name in the indictment, would render the proof irrelevant, or that such an indictment might not be supported by proof of possession, wTith the person hiring the slave.

5. The last question referred, may be shortly answered; that there is nothing repugnant in charging the ownership of the slave in different persons, in different counts of the same indictment. This was a precaution which is always advisable under similar circumstances.

For the error in admitting the evidence stated in the first point referred, as well as for the erroneous charge,— the judgment of the Circuit court is reversed, and the case is remanded, with instructions to cause the prisoner to be tried in due course of law.


text:
    BEAL & BENNETT vs. SNEDICOR.
    1. Where deiendants are described as “ late merchants, partners, &c.,” it is to be inferred, tiiat the co-partnership ceased to exist, before the commencement of the suit'.

      2. And where a partnership has ended, service of process upon one of the partners, cannot operate as a service upon the other members of the firm.
    3. But where both defendants appear, and judgment is rendered against them, advantage cannot be taken of the irregularity of the service.
    4. The general issue in assumpsit, may be pleaded by one of several defendants, in an action against deiendants, who were at a former time partners.
    5. A plea to an action by the assignee of a note — that the note has never been assigned, and is stilt the property of the payee, must be verified by the oath of the defendant, swearing that he verily believes the assignment tobe iorged — and until this is done, plaintiff need not prove the assignment.
    Error to the Circuit court of Greene.
    Assumpsit on a promissory note.
    -The defendant in error, as the endorsee of Méssrs. Brewster, Solomon &, Co., brought an action of assumpsit against she plain tiffs, in the Circuit court of Greene; and in his declaration, as well as writ, described the plaintiffs as “late merchants, doing business under the name, style and firm of Beal & Bennett.”
    The cause of action was a promissory note, in these words :
    “ $974 38-100. New York, Aug. 23d, 1836.
    “ Twelve months after daté, we, the subscribers, of Brie, State of Alabama, promise to pay to the order o^ Messrs. Brewster, Solomon & Co., nine hundred and seventy-four 38-100 dollars, for value received.
    (Signed,) Beal & Bennett.”
    In the declaration, it was stated, that the defendant in error was the endorsee of the note, and that by the endorsement, “the said Brewster, Solomon & Co., then and there, ordered and appointed the said sum of money, in the said promissory note specified to be paid to the said plaintiff, &c.”
    The only service of the writ, appearing on the record, was endorsed on the process, as follows:
    “ We acknowledge the legal service of this writ.
    Beal & Bennett.
    Aug. 26th, 1837.”
    In the Circuit court, James A. Beal, one of the plaintiffs in error, appeared and pleaded—

      First — Non-assumpsit, in due form ; and
    Secondly — That the defendant in error was not the owner of the note sued on, or any part thereof, at the time of the commencement of the action, but the same was then, and still was, the property of Messrs. Brewster, Solomon & Co.
    To these pleas, the defendant in error demurred; and his demurrer being sustained, and the plaintiffs declining to plead over, a judgment by nil (licit was rendered against them, in which it was recited, that the parties came by their attorneys, &c. “ and the court being satisfied that service of the writ had been accepted by James A. Beal, who, in accepting the service, signed the name of Beal & Bennett, as it appears on the writ, and the defendants saying nothing .further in bar or preclusion of the plaintiffs said action against them. It is considered by the court, that the plaintiff recover of, and from the said defendants, the sum of one thousand and seventeen dollars, and sixty-eight cents, the damages in the declaration mentioned, besides his costs in this behalf expended,” &c. The case was entitled, at the head of the entry of judgment, “Isaac C. Snedicor vs. James A. Beal and Washington W. Bennett.”
   COLLIER, C. J.

— From the terms in which the connection between the plaintiffs is stated upon the record, it is clearly inferrable, that it had ceased to exist before the commencement of the action. They could not, with propriety, upon any other hypothesis, have been described as 11 late merchants, partners? &c. The case of Duncan vs. Tombeckbee Bank, (4 Porter’s R. 185,) is directly in point, to show that such is a just interpretation of the terms.

The partnership, then, being at an end, the service of process on one of the plaintiffs, would not have operated as a service on both, within the meaning of our statute—(Aik. Dig. s. 57, p. 268; Duncan vs. Tombeckbee Bank, 4 Porter’s R. 184.) It was even doubted, at one time, whether, during the existence of a copartnership, it was competent for one partner, without the concurrence of the others, to enter an appearance for the firm ; unless all its members were served with process —(Hills vs. Ross, 3 Dall. R. 331, dicta of Chase and Iredell, justices; Taylor vs. Coryell & Co. Gow. on Partnership, appendix, 483.) But it never has been supposed, so far as our research extend:;, Cud e partner possessed this power after the dissolution of the partnership, as it respects antecedent contracts. The lav.' is clear, that the authority which exists (kv/usy the continuance of a partnership, from one partner to hind his co-partner, ceases on its dis-solution. indeed it would he a hardship to put a retired partner in the pc c:* cf i'T, late eo-phriuer, by authori-sing the Inttor to pledge his crccVt directly, or to make him a party defend an t to suits without his consent. Such on authority would he well calculated to discourage ail enter;ir;''.:-, depending for its successful prosecution, upon Üie association of capital.

We have, Usen, no hesitation in concluding, that the ■acknowledgment of, service of the writ by Beal, could not have the effect to bring Bennett into court; but the entry of the jm/’finvnt shews, :;i Idlidn:i verbis, that both the plaintiffs in error appeared, though but one pleaded ; so that it is immaterial what ¡nay be the truth in this respect, the record is conclusive on the point, so far as the action of tins ¡.ev.i l T concerned. The plaintiffs being concluded by ibeT appearance, there was no necessity for the introduction of evidence by the defendant, to show in what manner process was served; and though it was irregularly served, as to Bennett, the form of the judgment, as already shown, precludes him from taking advantage of the irregularity.

In respect to iho ¡dear!, it will be observed, that the demurrer, whether intentional or not, objected to both, as insufficient in point of law, and was sustained to both. ' The first plea is non-as.n;unpci¿, in usual form. True, tide plea is pleaded by Beal alone, and denies that he undertook and assumed in manncivaad form, as the plaintiff in his declaration alleged. Tin; declaration'charges him, as co-partner of Bennett, with having made the promissory note, and the note itself is prima facie evidence of his assumption, and throws on him the necessity of making good his defence by proof. To this plea, then, there is not the slightest objection: and we can only account for its having been demurred to, and the demurrer sustained, by its not being noticed, cither by the counsel for the defendant, or the court. The second plea, we think, cannot be maintained. The act of eighteen hundred and nineteen, to regulate tire proceedings in the courts of law and equity in this Otate,” enacts, “ when any suit shall be instituted by airy person or persons, as assignee or assignees of any bond or other writing, it shall not be necessary for the plaintiff or plaintiffs to prove the assignment or assignments, unless the defendant or defendants shall annex to a plea, denying such assignment-or assgnments, an affidavit, stating that such defendant or defendants verily believe that some one or more of such assignments were forged, or make oath to the same effect in open court, at the time of filing such plea”—(Aik. Dig. s. 144, p. 283.) The -direct tendency of the plea is, to controvert the endorsement of the note to the defendant in error, and in fact denies the allegation in the declaration, in which title is deduced from Messrs. Brewster, Solomon & Co. The term endorsement ex vi termini, when used in regard to commercial paper, implies a transfer, by writing thereon the name of the payee, or other subsequent party, in whom the legal interest is vested; and when it is said that the contents of a note or bill are ordered and appointed to be paid to a particular individual, we are to understand that there is an express direction of the payment, or an assignment of title to him by the person endorsing—(Clawson vs. Gaston, 2 South. R. 321; Tyler vs. Binney, 7 Mass. R. 479; Lovell vs. Evertson, 11 Johns. Rep. 52; Norris vs. Badger, 6 Cowen’s R. 449; Dugan vs. U. S. 3 Wheat. R. 173, 183.)

The second plea, as it puts in issue the fact of the assignment, should have been verified by affidavit, or have been sworn to in open court; neither of which modes of verification seem to have been observed; and it is bad in substance.

We will not enquire how far the matter of the plea presents an available defence, inasmuch as the point was not argued; nor will we consider whether it is bad, as stating facts, which, if a legal bar, are admissible under the general issue. These questions, we leave for future adjudication. For sustaining the demurrer to the first plea, the judgment is reversed, and the case remanded.