Sims v. Boynton , 32 Ala. 353 ( 1858 )

RICE, C. J.

The proof made at the spring term, 1857, authorized the amendment of the judgment entry made at the fall term, 1856, in relation to the taking and setting aside the non-suit. There was no error in allowing that amendment, and in placing the case on the docket for trial. — Reese v. Billing, 9 Ala. R. 263; Edwards v. Lewis, 18 ib. 494; Chighizola v. Doe ex dem. Eslava, 24 ib. 237.

[2.] From the complaint it does not appear that the plaintiff, Boynton, sues here as the administrator of-Jas. A. McEwen, deceased. But it is settled, that an administrator, who as such has had possession of personal chattels of his intestate, is not obliged to sue in his representative capacity for their recovery; and that he may sue for and recover them in his individual capacity. — George v. English, at the last term.

Although the complaint does not, on its face, show that Boynton claims a recovery here as administrator of McEwen; yet, as he might recover under it upon his title and possession as such administrator, he had the right to prove that it was in his representative capacity that he here claimed a recovery. The return of the appraisers, as offered in evidence by him, tended to show that he claimed a recovery in that capacity, and was admissible for that purpose. — Calvert v. Morrow, 18 Ala. 67.

No plea of ne ungues administrator appears in the record. But, if such plea did appear, the evidence shows it to be untrue; and that Vm. M. Lapsley was the administrator in chief, and the plaintiff, Boynton, the administrator de bonis non of McEwen. The defendant could not be entitled to a verdict on a plea which was thus disproved; and there was, therefore, no error in refusing the 18th charge asked by the defendant.

[3-4.] The construction of the order appointing Boynton administrator of the estate of McEwen, was a matter for the determination of the court. — Wyatt v. Steele, 26 Ala. R. 639. There was no evidence tending to show a want of jurisdiction in the probate court of Dallas county to make that order. It was, therefore, the duty of the circuit judge, who presided at the trial of'this cause, to have told the jury, that the order was valid, and made by a court having jurisdiction to make it. In not telling them so, the circuit court erred. But the error was in favor of the defendant, who here complains of it. By committing that error’, and making the validity of the order dependent on parol proof, the circuit court gave to the defendant an additional chance for a verdict, to which he was not legally entitled. He certainly is not entitled to a reversal for an error which clearly did not injure him, but actually gave him one more chance for success than the law allowed. — Eslava v. Elliott, 5 Ala. R. 264; Miller v. Jones, 26 Ala. 247; Alford v. Samuels, 8 Ala. 95; Code, §§ 670, 672, 673, 675.

[5.] As it was the duty of the court to have pronounced the order valid, it was not erroneous to charge that, in the absence of evidence to the contrary, the law présumed that the decedent died intestate. A valid grant of letters' of administration, by the domestic tribunal of exclusive jurisdiction, is prima-facie evidence of the death of the alleged intestate, and of the right of representing himi Brickhouse v. Brickhouse, 11 Iredell, 404; Peterkin v. Inloes, 4 Maryland Rep. 175.

[6.] The letters of administration may have been unnecessary, or redundant evidence. But the refusal to exclude such evidence, when, as here, the refusal could not injure the party objecting, furnishes no ground of reversal. — Elliott v. Eslava, 5 Ala. R. 264; Kyle v. Mays, 22 Ala. 692; Garrett v. Garrett, 27 Ala. 687.

[7.] When a plaintiff in detinue has shown a prior possession, and made out a prima-facie case, the defendant cannot defeat a recovery, by showing merely an outstanding title in another, with which he has no connection. — Dozier v. Joyce, 8 Porter, 303; Traylor v. Marshal, 11 Ala. R. 458; Lowremore v. Berry, 19 Ala. 130; McGuire v. Shelby, 20 Ala. 456; Harker v. Dement, 9 Gill, 7.

[8.] After evidence had been adduced, tending to show that the plaintiff, as administrator of MeEwen, was in possession of the slaves in controversy; and that after such possession, and before this suit was commenced, he had hired them to Doctor Howell, in the summer of 1855, for the balance of that year, and had placed them in his possession; and that while they were thus in his possession, and before the commencement of this suit, the defendant took possession of them, without the consent of the plaintiff or Dr. Howell, and kept them until after this suit was brought, — it was proper to allow the plaiutiff to prove by Dr. Howell, that “ when the slaves were taken away from him, he went to plaintiff, and told him he would not sue for them, nor pay hire, if they were not returned to him, and requested plaintiff to sue for.them.”. That evidence certainly tended to prove, that the defendant had no connection with the title outstanding in Dr. Howell for the unexpired term of hire, if that title should be considered as an outstanding one; and it also tended to bring the case within the influence of the following principle, to-wit, that where slaves, during a bailment, are .taken and converted by a,third person, and the bailee thereupon refuses to proceed .-for the tort, and gives notice thereof to the bailor, and requests him to sue for them ; and thereupon the bailor brings detinue against the tort-feasor, the latter cannot defeat the action, by showing merely that the bailment was unexpired at the commencement of the suit. — Addison on Contracts, (edition of 1857,) 416, 417. Such conduct on the part of the bailee restores the right of possession to the bailor, and forfeits or surrenders his own accruing rights under the contract. Grant v. King, 14 Vt. Rep. 367; Farrant v. Thompson, 5 Barn. & Ald. 826; Sanborn v. Colman, 6 New Hamp. Rep. 14; Hall v. Goodson, at the present term.

If the final judgment is not in the proper form, it is fully as favorable to the defendant as it should have been. It does not deprive him of any legal right; and he has no ground for complaining of it.

What we have above said disposes of all the matters relied on for reversal, and requires us to affirm the judgment.

Judgment affirmed.