Mitchell v. Cowsert , 20 Ala. 186 ( 1852 )

Phelan, J.

When the record does not purport to set out all the evidence, no presumption adverse to the correctness of the judgment can be indulged. King v. Crocheron, 14 Ala. Rep. 822. The bill of exceptions in this case does not profess to set out the whole of the evidence.

A bill of exceptions must always be taken most strongly against tbe party excepting. Mallory v. Stodder, 6 Ala. Rep. 801. For any thing that appears by this bill of exceptions, it was shown on the trial in the court below, that there was both a wrongful taking and an unlawful detainer of the slave in controversy by the defendant below before the marriage of the plaintiffs, and that consequently, at the time of the marriage, nothing remained to the wife but a chose in action■, or right to recover by suit her property, which had been wrongfully taken and detained before marriage. That in such a ease, husband and wife must join in the action for the recovery of the chattel, is too well established to admit of controversy.

Whether the plaintiffs derived title from the gift by the grandmother before the marriage, or by the deed of 1850, does not affect the decision of the case, under the state of facts supposed in reference to the taking and detention of the slave, and as such a presumption may properly be indulged in favor of the judgment, we must hold that there was no error in refusing the charge asked by the defendant below.

The judgment below is affirmed.