Walker v. Smith

28 Ala. 569 | Ala. | 1856

RICE, C. J.

When a married woman, owning a steam saw-mill as part of her separate estate, hires'slaves of another to work in and about it, at a specified price' and for a specified term-, and receives them into hef service, her separate estate may be subjected by a court of equity to the payment of such price, although no note was given for it; and the bill for that purpose may be filed against her and her husband.— Ozley v. Ikleheimer, 26 Ala. 332; Calvert on Parties, 269; Dyett v. N. A. Coal Co., 20 Wend. 570; Waldron, Isley & Co. v. Simmons, at the present term.

If, during the- term of hire, the slaves run away from her, and are taken up and committed to jail as’ runaways in this State; and, with notice of this, she permits them to remain in jail until the expiration of the term; and the owner, to regain possession of them, is compelled to pay their jail fees, —he thereby acquires a right to reimbursement of the sum thus paid, out of her’ separate estate. It was her duty to pay these fees, and,to restore the slaves to their owner at the expiration of the term of hire. — Story on Bail. § 397. As she disregarded her obligation in this respect, the owner, at the expiration of the term, had the right to pay such fees, in order to regain the-possession of his slaves, apd to obtain reimbursement out of her separate estate. • The jailer had a right to detain, the slaves until the fees were paid. The owner has been compelled to pay a debt, which, in equity and good conscience, she should have paid, and therefore his right to reimbursement rests upon sound principle. — Plummer v. Sherman, 29 Maine Rep. 555; Ticonic Bank v. Smiley, 27 b. 225; Mix v. Hotchkiss, 14 Conn. 32.

The bill in this case asserts no liability against the husband. It shows nothing for which either the husband or wife can be charged personally. It sets forth a demand for which her separate estate is liable, 'if the allegations of the bill are established. The 'frame of the bill is such, that if a decree cannot be rendered against her separate estate, no relief whatever can be granted under it. It is clearly a bill to subject her separate estate to the payment of the demand therein set forth. There is no “ misjoinder of defendants,” nor of “accounts.” — Calvert on Parties, 269-273; Gerald and Wife v. McKenzie, 27 Ala. 166.

As the defendants filed a joint and several answer, embracing a demurrer specifying five distinct grounds, and did not by demurrer or otherwise, in the court below, raise the objection, that the bill contains no special prayer for a decree against the separate estate of the wife, and that under the general prayer no such decree can be made, we will not even consider that objection. By failing to raise such an objection in the court below, where, if it be a sound one, it might and ought to have been remedied by an amendment, the party loses the benefit of it in the appellate court.— Code, § 2900.

The subpoena- issued in this case embraced both husband and wife, and was returned by the sheriff, “executed.” This return means that he served both husband and wife, and shows that she was made a defendant in compliance with our 4th rule of practice in chancery. — Hollinger v. Bank, 8 Ala. 605.

The evidence convinces us that the substantial allegations of the bill are true, and that the' slaves of the complainant were not hired upon the mere credit and personal liability of the husband. — Dyett v. N. A. Coal Co., supra.

Two depositions of Thomas B. Jones, and two depositions of Bython Smith, appear in the record. The deposition of Jones last taken, and the deposition of Smith last taken, were taken by the defendants, .and certainly contain nothing which would authorize either of the defendants to ask for their suppression; yet the record shows that Mrs. Walker moved “ to suppress the depositions of Thomas B. Jones and Bython Smith as evidence against her”, and that the motion was overruled. This motion to suppress is general. It specifies no ground on which the suppression was asked. It does not even show that it sought to suppress only one of the depositions of Jones, and only one of the depositions of Smith. Its language is broad'enough to admit of the construction that it sought to suppress both depositions of Jones, and both depositions of Smith. Thus construed, it is clearly not sustainable; and if such general.motions can be considered at all on an appeal, the strongest construction which they reasonably admit of, against the party making them, will be placed upon them. .

There is no error in the decree, and it is affirmed, at the costs of the appellants.