Townsend v. Jeffries' Adm'r , 24 Ala. 329 ( 1854 )

LIGON, J.

There was no error in overruling the motion of the defendants to dismiss the suit, on account of a supposed discontinuance, because the names of Routt and wife, as executor and executrix, had ceased to be used as plaintiffs, and that of Thomas, as administrator, had been substituted on the record before the motion ivas made. The defendants were in court, and consenting to the order made at the August term, 1850, by which Thomas ivas substituted for Routt and wife as plaintiff, and at a subsequent term, the case was continued on their motion ; and they will not bo allowed, after both their agency in making Thomas a party, and their long acquiescence in the order by which he was admitted to prosecute the suit as plaintiff, to object to the order by -which he was made a party. The objection should have been taken at the time he was proposed to be substituted for the original plaintiffs, if such substitution were irregalar ; as it was not, it must be considered as waived. There was no discontinuance of the suit, as it was regularly continued from term to term from its commencement to the final trial in the court below.

If there was a change in the administration of Jeffries’ estate, as the record clearly indicates, between the commencement of the action and the time at which the order was made admitting Thomas, administrator of Jeffries, as a party plaintiff, wc could not say there was craor in his becoming such. On the contrary, such an order is fully authorized by our statute (Clay’s Digest 22! § 80); for the declaration clearly shows, that the wrong complained of was committed upon a slave belonging to the estate of the testator, and the amount of damages recovered will be assets of the estate.' It was proper, therefore, that the suit should be brought, and prosecuted in the name of his personal representative: and if, during its pendency, there was a change of representatives, there may also be a change in the party plaintiff to the suit.—Graham v. Grant, 12 Ala. 105; King & Clarke v. Griffin, 6 Ala. 387.

Neither was there any error in sustaining the demurrer to the plea in abatement. There is no such variance between the Avrit and declaration, in legal effect, as Avouldhinder the former from being amended, on motion, and where this is the case a plea, in abatement, if demurred to, Avillnot be allowed. Caldwell v. The Branch Bank at Mobile, 11 Ala. R. 549.— Pleas in abatement are never favored by the courts, and in them matters of form become matters of substance"; and if they are technically deficient in form, a demurrer will be sustained. The plea here undertakes to defend <¡ the wrong and injury," Avhen the action is trespass, and the books require the form of defence to be to "the force and injury.”—20 Ala. R. 404; Elmes & Co. v. McKenzie, 5 Ala. 617; Stephens’ Plead. 434-479; Chit. Pl. 231, 460, 463.

The third error assigned is predicated upon the ruling of the court on the objection of the defendants to a portion of the testimony of the witness Dale. The ansAver, a portion of Avliich was objected to, is directly responsive to the question. It appears that the interrogatories were served upon the counsel of the defendant, Avho took no exceptions to them at any time. If a party fail to object to a question when asked, it seems, he will not be allowed to object to the answer when made, if it directly respond to the question, which is the case here. Were the rule otherwise, it would give the party the advantage of the answer, if it was favorable to him, and the right to exclude if it was unfavorable — a privilege which neither common justice nor the rules of evidence will extend to him. —Anderson v. Snow & Co., 9 Ala. 247; Bradford v. Haggerthy, 11 Ala. 698.

The question is, “ Bid you not see said defendants, or either of them, commit any trespass, about the last time named, on any slave?” To this the witness replied, “I did see them commit a trespass on said negro slave, Lewis,” <fcc. The question itself was objectionable ; but, as that was permitted to pass without exception, the jdaintiff was entitled to an answer, and if that answer was responsive, it was too late for the defendants to object to it. The opinion of the witness, however, seems to be fully justified by the facts which he discloses in the same answer, as he goes on to state that the defendants inflicted a most cruel whipping upon the slave, without authority, or even well founded excuse, for so doing.

There was no error in sustaining the demurrer to the second plea of the defendants. The matter of that plea, in the manner in which it is therein set forth, forms no bar to the action ; at most, it could only tend to mitigate the damages. No person has the right to inflict chastisement on his neighbor’s slave, without the consent of the owner, unless such authority is given him by statute, as in the case of patrols, and on his own premises when such slave is found there without the permission of his master or overseer, &c.; and even in these cases, the plea, to be good, should set out and aver the authority under which the party acted. When acting with the warrant of law, the party may forfeit its protection, if the chastisement inflicted by him is cruel and excessive.

There is no error in the record, and the judgment is affirmed.