Guilford v. Hicks, 36 Ala. 95

Guilford v. Hicks

36 Ala. 95 | Ala. | 1860

STONE, J.

The trial of this case was had before Geo. W. Williams, judge of probate for Flenry county, and not before the probate court of that county.-Code, §§ 8710, et seq.; Ex parte Bennett, 30 Ala. 461. Hence, the judgment of that tribunal can not be brought before this court for review, by appeal. — Code, § 3016.

[2.] Conceding, however, that the case is before us on a proper motion, let us inquire whether the applicant is entitled to any relief. The petition avers, that Patience L. Iiicks and her child are free white persons. The bill of exceptions, sealed on the trial, sets out certain evidence-as given in, but does not affirm that it contains all the evidence. The judge of probate, after hearing the evidence, decided, in terms- most emphatic, that PatienceL. Flicks and her infant child, Cassy Ann, are free white persons. Under a well settled rule, we are unable to affirm that he decided incorrectly, in the absence of in*97formation that the record, contains all the evidence on which he pronounced his decision. On the contrary, we are bound to indulge the presumption, that his decision was justified by the evidence. — Shep. Dig. 572, §145; Stewart v. Hargrove, 23 Ala. 420; Donnell v. Jones, 17 ib. 689; Glass v. Glass, 24 ib. 468; Price v. Gillespie, 28 ib. 279; Shep. Dig. 567, § 78; School Comm. v. Godwin, 30 ib. 242.

[3.] The parties who were restrained of their liberty being white persons, they could not, under our law, be slaves. Nor could any question arise as to another’s right of property in them, for the obvious reason, that no person can have property in a white person. In Field v. Walker, (17 Ala. 80,) it was correctly asserted, that persons of color could not try their right to freedom on habeas corpus. But that principle has no application to this case. Nor does section 2049 of the Code make any provision for such a case as this. That section, by erroneously employing the word slave, evidently means negro, or person of color. These parties, if white persons, could not possibly bring themselves within the provisions of that section.

Appeal dismissed.