50 Ala. 342 | Ala. | 1874
On September 5, 1867, Joseph H. Presley, as plaintiff in the court below, commenced suit against Jeremiah Fail, as defendant, by summons and complaint in the statutory form, in an action of trespass vi et armis, for damages for killing a slave, named Israel, the 'property of said Presley, by whipping said slave until he died from the effect of said whipping, on July 7,1862. Afterwards, the defendant, said Fail, died, and the suit was revived in the name of his personal representative ; and then Presley died, and the suit was again revived in the name of his personal representative. On the trial below, there was judgment for the plaintiff; and the defendant brings the cause to this court by appeal. Here, he assigns twelve causes of error, which are noticed below, so far as is necessary to settle the merits of this case.
There was no error in this. The Code requires the clerks of the circuit courts of this State “ to keep a trial docket of civil cases, in which must be entered all civil cases standing for the trial term, at each term, in the order in which they were brought, the names of the attorneys employed, the character of the action, and the orders which have been made in each cause at any previous term.” Rev. Code, § 767. The first rule of practice under the general rules makes the entry of the attorneys’ names on the “book of appearances” equivalent to an appearance of record. Rev. Code, § 815. This court will infer that the trial docket is copied from the appearance docket, and used for this purpose, where the attorney does not deny the entry of his name. Less than this would make such entries mere snares to mislead the opposite party.
The decisions of this court are not altogether free from obscurity on the question thus raised. In McGrew v. Cato’s Ex’r, this court say, that such an objection is “ good matter of defence under the general issue.” Minor, 8. In a later case of Middleton v. Hornes (3 Port. 424), which was trespass for killing a slave, it seems that the demurrer in such a case as this would have been sustained. But, in the case of Blackburn v. Minter (22 Ala. 616) the court, in effect at least, came back to the principle settled in Minor, above quoted (Minor, 8); that is, that the objection to the complaint here attempted to be raised, is good as a defence to the merits, on a plea of not guilty. This latter plea was pleaded by the defendant, and issue was taken on it; and the verdict of the jury was against it. Then, the defendant cannot complain, as he has had the benefit of his objection by demurrer, on his plea to the merits.
But, before the demurrer had been pleaded, and before it had been heard, and before the cause was tried, the law on which the validity of this plea depended had been repealed, and this repeal was then in full force. At the trial, it was the duty of the court to charge the jury, that the law of so much of the defence as rested on the common-law principle of merger in such a case as this, had been overturned by the statute above quoted. Rev. Code, § 4423. Then, whether the court below erred in overruling the demurrer, or not, is now become immaterial ; for, if the cause should be reversed and remanded, because of the error in overruling the demurrer, it could not now be sustained, as the principle of law on which it is founded has been repealed. In such a case, there should not be a reversal. 14 Wall. 361, Pugh v. McCormick. The same would have been the case had the like defence been interposed by plea to the merits, and sustained by proof. A plea based upon a repealed law could not avail as a defence.
The charges numbered 1, 2, 3, which were asked by the de-, fendant, were properly refused. The evidence does not show, or tend to show, that Dr. Presley, the plaintiff’s intestate, sent the slave to the manager of his plantation, who was then the defendant, Fail, to be whipped or beaten to death, or that he gave his agent greater authority than to carry the slave to Fail for chastisement, for an offence which he was suspected to have committed. When the agent delivered the slave to Fail, his authority was at an end ; and if Fail went beyond the infliction of a proper chastisement, he took the peril of his abuse of his power upon himself. These charges are abstract. There is no evidence to sustain them.