May v. Rockett.

Mrs. Rockett, the mother of the ward. In reply to this cause of error, it is submitted:

1st. That the record does not show, that the point was raised in the court below. Sessions v. Reynolds, 7 S. & M. 130; Talbert v. Milton, 9 Ib. 9. The fault, if it really is one, was apparent on the face of the papers, and the proper subject for demurrer; after verdict, judgment, and writ of error, it is too late to avail defendant below. Whitaker v. Cormfort, Walk. 421; Statute of Jeofails, Hutch. Code, 848.

2d. The only effect of administration on the estate of Mrs. Rockett, would have been to place the property where it was at the time of its seizure by the defendant below; as the entire estate passed to the only child, no distribution was necessary; and unless creditors complain, which they do not, the expense of administration would have been useless and without an object. When the injury is done to property in the possession of a guardian, he must sue, and may recover; the administrator cannot. This principle is stated in the elementary books; and in Fuqua v. Hunt, 1 Ala. R. 198, a case similar to this in every respect, save that the point was there raised by demurrer, it is decided, that for an injury to the possession, the guardian is the proper party plaintiff.

3d. The taking by the defendant below was tortious. Then replevin will well lie against the trespasser. Parsons v. Barnard, 7 T. R. 142, and authorities there cited; Sawtelle v. Rollins, 10 Shep. 196; Pierce v. Van Dyke, 6 Hill, 613; Haythorn v. Rushforth, 4 Harr. 160; McIsaacs v. Hobbs, 8 Dana, 268.

4th. The verdict is clearly supported by the evidence, and from the uniform decisions of this court will not be disturbed. 5th. It is submitted, that the damages are not excessive. If, however, I err in this, a remittitur for the excess will be entered.

6th. The ruling of the court below is sustained by 1 Greenl. Evid. 224; 1 Phil. Evid. 81. The act called the women's law of 1839, was designed for the protection of femes covert, and but one mode of conveying their estates is allowed.

Mr. Chief Justice SMITH delivered the opinion of the court.

May v. Rockett.

This was an action of replevin brought in the circuit court of Chickasaw county, by the guardian of Richard M. Rockett, a minor, against the plaintiff in error, to recover the possession of certain slaves.

The jury found a verdict for the plaintiff, whereupon the defendant entered his motion for a new trial, which being overruled, he filed a bill of exceptions, which contains a full statement of the facts of the case.

From which it appears, that the slaves in controversy, as it was alleged on the part of the plaintiff, were the property, acquired by donation from the plaintiff in error, of Mrs. Rockett during her lifetime, who was the wife of the plaintiff, and the mother of the said Richard.

Mrs. Rockett died in possession, and the property is claimed by the said Richard, who was her only child, under the act of 1839, passed for the protection and preservation of the rights of married women.

The pleadings in the case admit the character in which the plaintiff sued; and, conceding that Mrs. Rockett was proved to be the absolute owner of the slaves at the time of her death, the question arises, whether the title thereto vested in her administrator, or directly in the ward, by operation of the statute?

This question was considered in the case of Marshall v. King, 2 Cushman, 85; and it was decided, that slaves held by a feme covert under the statute above cited, did not vest in her children upon her death, but in her administrator.

We perceive no sufficient reason why we should depart from that decision; and shall, therefore, adhere to the rule therein laid down.

It was in proof on the trial below, that administration had been granted upon the estate of Mrs. Rockett; there was, therefore, an investiture in fact of the legal title in the administrator. So long as that title remained in him, he, and not the heir or distributee, was the only person who could maintain an action at law for the recovery of the possession of the said property.

The proof also shows, that there had been no distribution

May v. Rockett.

made of the estate of Mrs. Rockett, nor had the said slaves been delivered or turned over to the ward or to his guardian.

The ward, therefore, never had the legal title to the slaves; hence he had no right to the possession which remained in the administrator.

But the right of possession or a right of property, which, when it exists in reference to a chattel, generally carries with it a right of possession, is the necessary foundation of the action of replevin. The defendant in error not having the legal title or the right to the possession, was not entitled to recover. The verdict was, therefore, wrong, and should have been set aside.

But it is said, the defendant in error was legally in possession of the slaves, and that they were taken out of his possession wrongfully. The evidence may sustain this position; but in order to authorize the maintenance of this action, it was indispensable that the right of possession should have been in the ward. We have above seen, that the ward never had the right of possession, and it is not pretended that he ever had possession in fact. During the life of Mrs. Rockett, the defendant in error was in possession jointly with her, or had possession by virtue of his marital rights; but upon her death his right of possession ceased, and all of her rights went to her administrator. But if it were admitted, that he had the right of possession at the time of the alleged wrongful taking, such right of possession would authorize a recovery in his individual character, but not in his capacity of guardian.

Let the judgment be reversed, cause remanded, and new trial awarded in the court below.

Haynes v. Ezell.

JAMES P. HAYNES US. WILLIAM EZELL, use of J. WALKER.

The statute of jeofails is very broad, but it cannot be extended to a case where the declaration shows on its face, that the right of action in the instrument sued on is not in the party suing. Held, that the judgment is erroneous.

IN error from the circuit court of Lowndes county; Hon. F. M. Rogers, judge.

On the 28th of June, 1851, Ezell, for the use of Walker, sued out a writ in Lowndes, and on the 2d of July another, to Noxubee, from Lowndes, in the same case, as a branch writ, and indorsed as such. The writ to Lowndes purports to be executed on the 26th of June, 1851, on Conner.

The cause of action as indorsed on the writ is, that "the action is founded on a promissory note indorsed by defendants to plaintiff,” and is copied as on a note to this effect, namely:

"January 1, 1849.

"One day after date I promise to pay William Ezell, or order, two hundred and twenty-one 22-100 dollars, for value received.

The declaration is in the name of Ezell for the use of Walker, and alleges that Eldridge, the maker, had been sued to insolvency; describes the face of the note, and as payable to Ezell or order; then avers, that Ezell transferred it, by delivery, to the defendant in the suit, James P. Haynes, "who thereby, then and there, became the owner thereof;" that Haynes transferred the same, "by writing on the back," to said Conner, (the other defendant in the suit,) and that Conner transferred said note, "in writing," to Josephus Walker, the usee, whereby Conner "guaranteed" the payment of said note to Walker, and delivered it to him.

On the 23d of September, 1851, a joint general judgment was entered, by default, against Haynes and Conner, whereby

Haynes v. Ezell.

it was considered by the court, that the plaintiff recover of the defendants the sum of two hundred and sixty dollars and sixty-two cents, his damages sustained by reason of the nonperformance of the promise and assumption in the declaration mentioned, &c., when Haynes prayed this writ of error.

James T. Harrison, for appellant.

1. The proceedings do not, authorize or support the judgment. The liability, if any, is separate, and not joint.

2. The damages are excessive, and are not warranted by the face of the papers. The judgment is for too much.

3. The papers affirmatively show, that plaintiff has no cause of action at all, and that no perfection in the pleadings can give him a legal cause of action. There is a total absence of a cause of action, and the statute of jeofails cannot supply one. Winston v. Miller, 12 S. & M. 554.

4. The declaration shows, that no judgment could be rendered, and that it was utterly impossible for such a suit to be maintained. The payee of a promissory note, payable to himself or order, brings suit in his own name, as having the legal title, for the use of a remote indorsee, against two intermediate indorsees.

5. The declaration avers, however, that the title passed out, by delivery, from the payee, and that Haynes thereby became the owner; that he indorsed it to Conner; and that Conner, in writing, transferred and guaranteed the same to Walker, the usee; how, then, can any such action be supported in the name of Ezell for the use of Walker, or against Haynes as indorsee, or Conner as guarantor? The declaration shows no legal liability on the part of either defendant. There was neither demand nor notice.

6. If Conner is liable at all, it is upon his guaranty directly to Walker himself; and Haynes cannot be liable as indorser, without showing the legal title out of Ezell.

7. The writ was issued to Lowndes on the 28th day of June, and professes to have been executed on the 26th of June.

8. A branch writ could not have been issued in such a case, and the jurisdiction of the person was illegally acquired.