Pinson v. Gilbert

STONE, J. When the trial of this case was entered upon, “the defendant moved the court to suppress the deposition of Henry McDaniel, on the ground that said witness-was alive, and lived within ten miles of the court-house, and that the cause for which it was taken does not exist, and that the defendant wishes to examine him orally on the stand. The court overruled the objection, and permitted said deposition to be read in evidence, and defendant excepted.” After the deposition was read, “ defendant moved to exclude the testimony, on the ground that the witness was alive and in the jurisdiction of the court. The court refused to exclude the evidence, and defendant excepted.” The foregoing is all the record shows bearing on the question therein sought to be raised. It will be observed that, in each motion,* the counsel stated the grounds on which it was made, but the record fails to show that the grounds stated exist as facts, unless such inference arise out of the language quoted above. In the case of Rupert & Cassety v. Elston, 35 Ala. 79,. objection was made to the competency of the witness, “ because it appears upon his examination voir dire that lie-had indemnified defendant’s testator against any loss arising from.the said claim sued on.” Other objections to the competency of the witness were stated, and the bill of exceptions ■ contained this clause: “which objections the court severally overruled, and the plaintiffs excepted.” We said: “The record does not inform us what testimony Mr. Dixon gave on his examination voir dire. From any thing which we can affirm, the court may have overruled the objection of the plaintiffs, because said ground of objection was not shown to exist in fact. The question would b.e analagous if the competency of the witness had been objected to, because it appeared upon his examination voir dire that the record of recovery in this suit would be evidence for the witness Dixon in another suit. This would not be an averment that the fact existed, but that plaintiffs had made such objection.” So, in this case, the record does not affirm that the state [39] of facts was shown to exist on which defendant based the objection to the reading of the deposition. It- only shows that defendant made such objection. We can not presume the existence of any fact not shown, and make it the ground for reversing the judgment of the Circuit Court. — See 1 Brick. Dig. 775, § 29 — 781, §§ 118, 120. As we said in the case from which we have quoted, “ there “ivas not shown to be any evidence before the court to justify the decision invoked, [and] we feel bound to decide that the court did not, in this particular, commit an error.” The charges given and excepted to, each, assert substantially the same legal propositions. They correctly declare the law applicable to the case made by the evidence. There was no trust account to be settled requiring the exercise" of chancery powers. The slave Sukey had been converted into money, and there is no evidence in the record that such money was re-invested by Mr. Gilbert in another slave, or slaves, to take the place of Sukey. The testimony tends to show that he did not, by any subsequent purchase, intend to put the slave thus bought, and hold him, subject to the trust under which he held Sukey. If slaves had not been emancipated, the present plaintiffs could not have recovered, by suit, any slave which Mr. Gilbert subsequently bought, for the plain and simple reason that we are not informed that he made a purchase which he intended should stand in the place of Sukey. He, then, received the proceeds of Sukey; kept such proceeds till his death, or converted them; and at his death — not till then — a right accrued to plaintiffs to have an account of the slave Sukey. Having converted her, without re-investing the money, Mr. Gilbert armed the plaintiffs with the right to waive this omission of duty, and to sue for the proceeds, as so much money had and received by him for their use.—Kavanaugh v. Thompson, 16 Ala. 817; Hitchcock v. Lukins, 8 Por. 333; Vincent v. Rogers, 30 Ala. 471; 1 Brick. Dig. 150, §§ 228,229; lb. 141-2, §§ 89, 90,110, 111. If Gilbert, under the power contained in the deed of separation, had exchanged Sukey for another slave, or with the proceeds of her sale had purchased another slave, and had received and held such substituted slave subject to the same trust under which he held Sukey, then the emancipation of such slave, by the act of the Government, would have relieved his estate from all liability over to his children in remainder. But he did not do so. He used or converted the money, and made no pretense of re-investment. He did not [40] lose the money by the emancipation of the slaves; and his estate must be charged with it as still in hand. In the several charges given and refused, the Circuit Court ruled substantially in accordance with the views above expressed, and the judgment is affirmed.