Garrett v. Ricketts , 9 Ala. 529 ( 1846 )

ORMOND, J.

The decree of a Court of Chancery, is certainly conclusive as between the parties to it,'of all the facts put in issue. But in this case, -there was no final decree made by the Chancellor, upon the case made by the bill. The decree pro coñfesso against Gunter, was interlocutory merely, subject to the future action of the court — to be set aside if the party appeared and answered, or confirmed by the final decree. The bill being dismissed, the interlocutory decree can have no effect as an admission of facts,' alledged in the bill. The transcript of the record, therefore, of the Chancery cause, was evidence merely that such a bill had been exhibited, injunction awarded, <fcc. For what purpose it was introduced, or for what reason objected to, the record affords no information, we are not therefore able to say, whether the court erred or not, in refusing to exclude it.

From the argument of counsel, it would seem, that the objection was to the reading to the jury, as evidence, an exhibit to the bill, purporting to be a transcript of the commissioners’ court of Marshall county, by which that court revoked a license previously granted to Gunter, to establish a ferry. It is very clear, that the act of the commissioners’ court could not be established by the transcript of the record of the Chancery suit, in which it was an exhibit; it was in fact merely a copy of the transcript of the record in the commissioners’ court. . No question however is made, as to the propriety of this exhibit as evidence, nor are we able to say from the record, that it was relied on as evidence. And as the record of the Chancery suit between the same parties, might have been evidence for some purposes, we cannot say that the court erred in refusing to exclude it.

The instruction of the court to the jury, raises the question, whether a license to establish a ferry,' can be revoked, without notice to the licensee to renew his bond.

The grant of a license to establish a ferry, is an incorporeal hereditament, subject to be revoked if a sufficient bond is not executed, within ten days after such requisition is made. [Lewis v. The Intendant of Gainsville, 7 Ala. Rep. 85.] It is now insisted, that the act of 1834, (Aik. Dig. 2 ed. 642, § 7,) is still in force, By that act, the Judge of the County Court is authorized to revoke a license for a ferry, if the bond is not renewed every three years, and to grant a license to any one who will apply for the same. In 1839, (Clay’s Dig. 513, § 26,) an act was passed which was evidently intended to supersede the former law on this subject, as it goes fully into detail, and embraces most of the provisions contained in the former acts, with some new modifications. It was considered by the compiler of Clay’s Digest, as consolidating and repealing the former acts, and such was the opinion of this court in the case cited from 7 Ala. Rep. 85. If then, it were conceded, that the Judge of the County Court, under the act of 1834, could revoke a license to establish a ferry, without notice to the lincensee to execute a new bond, ten days notice is expressly required by the act of 1839.

The reason assigned by the commissioners’ court, for the revocation of Gunter’s license, as appears from the exhibit to the Chancery suit, is, that “ Gunter ha§ left the State without renewing his bond, as by law required,” &c. As the grant of a license to establish a ferry is an incorporeal hereditament, it is the subject of transfer by sale, and would descend to the heir of the licensee ; it results therefore necessarily, that the absence from the State of the original grantee of the ferry, would be no sufficient reason for revoking the license. The franchise might doubtléss be lost by abandonment, or forfeited by a refusal to execute a new bond when demanded by the County Court, and such bond, as is said in the case previously referred to, “might as well be exacted from the heir, alienee, or lessee, of the ferry, as from the licensee.” [7 Ala. Rep. 89.] From these views, it follows, that the court erred in its charge, that the license might be revoked, without notice to renew the bond.

What influence, if any, the injunction was calculated to exert on the right of Gunter’s representative, to demand the rent of the ferry, whilst the injunction was in force, is a point not made in the court below; and although adverted to in argument, as it is not made upon the record, we decline expressing any opinion upon it.

Let the judgment be reversed and the cause remanded.