Hall v. Dargan

4 Ala. 696 | Ala. | 1843

GOLDTHWAITE, J. —

The omission of a formal issue is not a matter which ought to cause a reversal of a judgment in any case, but the more especially in this, where only one and that a prescribed issue could be tried by the jury. [Digest, 168, §45.] In Abercrombie v. Moseley, [9 Porter. 145,] when speaking of a similar omission, we say “it is always within the power of the plaintiff or defendant to require the pleadings to be in the regular form, and they can respectively claim judgments of default or non pross if the regular steps are omitted. With this right completely in their power on the circuit, it^is unjust that parties should be permitted after a trial, as if an issue was made and submitted to the jury, to reverse the judgment for the omission of a replication or rejoinder.” The same reasoning applies with equal if not greater force, to cases like the present; and we do not hesitate to declare that it must govern.

2. It is next urged, that the omission of the jury to state the sir-name of the defendant in execution in the verdict, which declares the slaves in question to be his property, is a sufficient reason to avoid the judgment. We cannot think so, because the whole sentence could be rejected without impairing the verdict,or the name would be supplied by intendment; for the only just conclusion is, that it is omitted by the clerical mispri-son of the jury or of the clerk in recording it. In no aspect is it a matter to cause a reversal.

3. The refusal of the Court to enter satisfaction of the judgment upon which the execution issued, or the motion of the defendant in execution, was proper enough for several reasons; firstly, because on the payment of the bill of exchange by Jackson, he was right in requiring of Dargan either to assign the judgment or prosecute it for his use against Hall, who was a prior indorser; but chiefly because the motion had no connex-ion or relation to the issue then before the Court. This principle was settled in Bettis v. Taylor, [8 Porter. 564,] and Stone v. Stone, [1 Ala.Rep. N. S. 582],

4. If the witness who was offered and rejected, had stood merely in the relation of a defendant in the execution, he would have been competent, unless the title passed from him to the claimant coupled with an express trust for his benefit; or unless one would result to him from the circumstances of the conveyance; but in addition to this relation, it appears that his wife was the individual to be benefitted by the successful prosecution of this claim. Husbands and wives can never be witnesses for each other, and it makes no difference in the principle that the interest of the wife is only equitable in consequence of the legal title being vested in a trustee. Such was the case of Davis v. Dunwoody, [4 D. & E. 678,] where the action was trover against the Sheriff, for seizing and selling goods conveyed in trust for the sole and separate use of the wife of the witness. The action was in the name of the executrix of the surviving trustee, and the husband was offered as a witness to prove the identity of the goods. The Court of Kings Bench held him to be incompetent, on the ground of public policy.— Other cases might be adduced in support of the exclusion, but they are deemed unnecessary, as the point is too clear to admit of illustration.

Our conclusion is that there is no error in the judgment, and it is affirmed.