Wier v. Buford. to him, as the agent of Eleanor Williams, and the sum promissd to be paid, was for the hire of two negroes, to wit: Fanny, Daley and child, from the date of the note to the 25th December, 1842. It also provided that the slaves should be delivered to Thomas Buford, as agent, at Demopolis, at the end of the time. At the trial, the defendant produced a witness, who testified that he was present the latter part of December, 1841, when Thos. Buford, as the agent of Eleanor Williams, hired out, at public auction, the two slaves named in the note, and that they were bid off by Wier; Fanny at $120 50. Also, that in the month of April, or May, 1841, the woman, Fanny, ranaway from the house of Wier, and that, at the request of Wier, the witness accompanied him to the residence Mrs. Eleanor Williams; that on their ar⚫ rival there, Wier inquired of Mrs. Williams, if the woman, Fanny, was at her house; Mrs. Williams replied in the affirmative; then Wier inquired, if she intended to give her up. Mrs. Williams replied, that according to the terms of the contract of hiring by Wier, he was bound to pay for the hire of the slaves, and that he had no right to retain them if he treated them cruelly; or if they were dissatisfied. Wier replied, that he did not wish to have any difficulty with Mrs. Williams, and informed her, that unless she returned the slave, Fanny, by the next day, he would consider his contract of hiring, as to her, at an end. Also, that the slave did not afterwards to return to Wier. It was further shown, by the evidence, that the slave was frequently seen at the house of Mrs. Williams, during the remainder of the year, and was not again in the possession of Wier. The plaintiff thereupon introduced Samuel J. Williams, the husband of Eleanor Williams, who testified that the slaves mentioned in the note, did not belong to his wife, but belonged to the minor children of himself and her; that the children have no legal guardian, but his wife had requested Buford to hire out the negroes. The defendant objected to this evidence upon the grounds-1st. That Williams was not a competent witness. 2d. That it is incompetent for the plaintiff to show by parol evidence, that he acted in a different character from that disclosed by the note. This objection was overruled. The Court charged the jury, that if they should believe that Mrs. Williams had a husband, at the time of the demand of the slaves, by Wier, that Wier was bound to make the demand of the Wier v. Buford. husband, instead of the wife, so as to rescind the contract of hiring; and that if Mrs. Williams had no title to the slave in question, she could not consent to a rescission of the contract. Also, that if Wier gave her all the next day, after his application for the slave, to decide whether she would determine to return the slave, then he was bound again to apply for her. A deed of gift was also in evidence, showing that Fanny belonged to the children of Mr. and Mrs. Williams. No proof of any demand, or effort to recover Fanny, by Wier, was offered, other than as before stated. The slave was also frequently seen going about the streets of Demopolis, apparently under the control of no one. The defendant excepted to the several matters before stated, and are now assigned as error. HOPKINS, for the plaintiff in error, made the following points; 1. The husband was not a competent witness. [4 Ala. Rep. 696; 4 Term. 671, 679.] 2. It was not competent for the plaintiff to contradict, by parol, the written admission on the note, that he was the agent of Mrs. Williams. [Mead v. Steger, 5 Porter, 498; 2 Ala. Rep. 571.] 3. As the contract was made with Mrs. Williams, through her agent, it was competent for her, by her acts or declaretions, to rescind the contract. [5 Porter, 320, 325; Story on Bail, 255, 256, 262; 1 Salk. 65; 1 Ala. Rep. N. S. 423.] PECK, contra, insisted that Williams was competent, because the money for the hiring was due, properly speaking, to the children, and not to Mrs. Williams. The recital in the note, that Buford was her agent, estopped no one, and the defendant, Wier, was not authorized to treat with her, as having a separate, or any other estate in the slaves. GOLDTHWAITE, J.-1. We think there was error, both in the admission of the husband as a witness, and in the several charges given to the jury. It may be, that the plaintiff was not estopped from showing that the slave in question did not belong to Mrs. Williams, but was the property of her children; but however that is, the evi Wier v. Buford. dence, when this was made to appear, had no effect, whatever, on the rights of the parties. Concede that the slave did belong to the children, it then proves only, that the hiring by Buford, was an act authorized by the wife, the benefit of which would probably enure to her husband, if the hiring is to be considered a conversion of the hire. Even if there was evidence, from which his assent to the hiring could be inferred, it would amount to the same thing, whether the hiring was to be paid either to her use, or to his. The test of the husband's interest, is the fact, that if Buford shall receive the money upon this contract, he cannot dispute, that Williams or his wife, is, one of them, entitled to receive it. He cannot dispute their claim to it, unless some other persons interpose and compel a payment. In this view, we think it clear, that Williams was an incompetent witness. 2. The more material inquiry, however, is, as to Wier's right to treat with Mrs. Williams as the principal in the contract, and to claim a discharge through her acts. And this seems to rest on grounds very similar to the other point. At the hiring, Buford announces that he acts as the agent of Mrs. Williams; the note expresses the same thing. Now, it is not very material, whether Wier knew that she had a husband, or whether he was ignorant of the fact. If he knew it, it was fair for him to presume, either that the wife had a sole and separate estate in the slave, as Buford acted as her agent, and not as her trustee; or that her husband permitted her to act for herself. Whatever was the fact, the contract was made substantially with her, and until Wier had notice, that in legal effect, it enured to the benefit of others, he was entitled to treat with her as a principal. So too, if in point of fact, as seems to have been shown, she, or her husband, had no title to the slave, this is a matter, that neither will be allowed to dispute, so as to cast a liability upon Wier, different from that assumed by him. By the hiring, she held herself out as entitled to act in the premises; her agent cannot refuse credit to her acts, and receive the benefit of the contract at the same time. 3. The remaining question, that it was necessary for Wier to make a demand of the slave, after the day during which he permitted her to be so returned, scarcely requires an examination. If his interview with Mrs. Williams, is to be considered as a de Manning v. Manning, et al. mand on his part, and a refusal on hers, there he might have rested the matter; but if, instead of doing so, he consented to receive the slave, if she would return the next day, this did not bind him to demand her again. Judgment reversed and cause remanded. 8 138 123 458 MANNING v. MANNNING, ET AL. 1. A note, or other security, given in consideration of money won at gaming, is void in the hands of an innocent holder, for a valuable consideration, unless he was induced to take it, by the representations of the maker. 2. The payee of a gaming note, who has transferred it to another, is a competent witness for the maker, and may be compelled to testify as to the consideration of the note, upon a bill in Chancery, filed by the maker against the indorsee. 3. Whether his testimony could be used against him, as an admission, upon a criminal prosecution for gaming-Quere? 4. Where the allegations of the bill were, that the indorsee of a note, knew when he obtained it, that it was made upon a gaming consideration, and he is called on by an interrogatory, to state under what circumstances the same was assigned to him, his answer, that before the note was indorsed to him, the maker informed him, it was good, and he had no off sets against it, is not responsive to the bill. Error to the Chancery Court of Madison. The bill was filed by James Manning, who alledges, that he left his signatures on blank sheets of paper, with Robert J. Manning, with the distinct understanding, that they should be used only in business transactions; that on the 11th October, 1839, by writing his own name, and the form of a note, over one of these signatures, R. J. Manning made the joint note of himself and complainant, negotiable and payable at the Branch Bank at Decatur, for $1,900, payable twenty-four months after date, to defendant, Blevins, who indorsed it to Kavanaugh, by whom it was indors Manning v. Manning, et al. ed to Turner, who obtained a judgment on the note, against R. J. and James Manning, in the Circuit Court of Madison, by default. That R. J. Manning has left the State, and gone to Texas. That the note was executed to Blevins upon a gaming consideration, to which the complainant gave no consent, and of which he had no knowledge. That he is informed, and believes it to be true, that Kavanaugh and Turner, at the time they respectively became the assignees of the note, knew that it was founded solely on a gaming consideration. That from an inspection of the note, it appears, there was once a credit of one thousand dollars upon it, which has since been partially erased, but is still legible. The prayer of the bill is, that all these parties be made defendants, and answers thereto be required to make, &c., &c. "Your orator calls on each of the parties to state the consideration of said note, according to his knowledge, information, and belief. Let said Kavanaugh and Turner each state, for what consideration, and under what circumstances the same was assigned to him, and let them all state how the credit came to be erased." Blevins denies knowing any of the matters in relation to the note, between complainant and R. J. Manning; admits he received the note from the latter, in consideration of money won from him at cards. That he assigned the note to Turner, (having procured Kavanaugh to indorse it for his accommodation,) in the purchase of a race horse and two hundred dollars; does not know that Turner, or Kavanaugh, knew of the consideration of the note.. Kavanaugh admits he indorsed the note for the accommodation of Blevins; did not know any thing about the consideration. Turner admits the purchase of the note from Blevins, in the fall of 1839, for his interestin the race horse Bustamente, and two hundred dollars in addition, which he has paid. "That before he received said note, he asked the complainant if he had any off sets, and told him he was about trading for the note. That complainant informed him he had no off sets, and the note was a good one," and thereupon he took the note; and that after he received the note, he again informed complainant of it. That he knows of no gaming between Blevins and R. J. Manning, so far as this note is concerned; nor did he suspect that such was the case, when he purchased said note, nor did he ever hear that the note was given for money won at cards, until the filing of the bill. The credit up |