Givens, et al. v. Tidmore.

judgment has been rendered against the complainant. The questions to be considered, are, does the case stated in the bill authorize the interference of equity, and is the decree supported by the proof?

It is explicitly alledged that the judgment was rendered against the complainant without consideration, fraudulently, and though no notice was given him of the pendency of the suit, by the service of process or otherwise. Taking this to be true, and it is clear that there was no opportunity to defend at law. If, under such circumstances, Chancery could not give relief, then the complainant, though he have moral justice on his side, and might have made defence at law, if he had notice, is now remediless without any fault of his. It may be that the sheriff's return is a matter of record, and cannot be falsified by a plea, yet we have have always considered, that it is not so conclusive but a defendant may alledge the want of notice as an excuse for not making defence at law. [See Brooks, et al. v. Harrison, 2 Ala. Rep. 209; Gibbs & Labuzan v. Frost & Dickinson, 4 Ala. Rep. 720.]

It does not appear, by proof so conclusive as to make it impossible to be otherwise, that the son of the defendant, Tidmore, signed the note in question instead of the complainant. Yet we think it cannot be reasonably doubted, that the note of which the witnesses spoke, is the one on which the judgment was obtained. They agree in their amounts and dates, and as it does not appear that the son ever signed more than one note for his father, it may be fairly inferred that the complainant did not unite with the father as a co-maker; especially, in the absence of all proof tending to such a conclusion.

The defendants do not positively affirm that the service of process was effected upon the complainant, but their answers are merely an expression of their opinion or belief. To overbalance such a denial of an allegation, it certainly does not require proof the most stringent and conclusive.

It is a general rule, that the party holding the affirmative of the issue, must sustain it by proof, but there are some exceptions in which the proposition, though negative in its terms, must be proved by the party who states it. One class of these exceptions, it is said, includes those cases in which the plaintiff grounds his right of action upon a negative allegation, and where, of

1

Givens, et al. v. Tidmore.

course, the establishment of this negative is an essential element in his case. But where the subject matter of the negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party. Such is the case in civil or criminal prosecutions for a penalty for doing an act which the statutes do not permit to be done by any persons, except those who are duly licensed therefor. So where the negative allegation involves a charge of criminal neglect of duty, whether official or otherwise; fraud, or wrongful violation of actual lawful possession of property, making the party the allegation must prove it. So where infancy is alledged, illegitimacy, (under some circumstances,) insanity, or death, where the presumption in favor of the latter cannot be indulged from lapse of time; the burden of proof is on the party making the allegation, notwithstanding its negative character. [Greenl. on Ev. 89 to 92; Gresly's Eq. Εν. 288-9; C. & H.'s Notes to Phil. Ev. 483 to 486, 490-1, 544-5; Carpenter v. Devon, et al. 6 Ala. Rep. 718.]

In respect to the objection, that the proof offered by the complainant, touching the note, should not have been received, we think it cannot be supported. The bill and answers all admit the existence of the note to which it is supposed the testimony relates, as the foundation of the action in which the judgment was recovered. It is conceded that such a note as is indicated by the record is really in existence, and the only question is, whether it was made by the complainant or some one bearing his name, The pleadings make the note, with all the proceeding at law thereon, evidence. Either of the parties may use it, if they think proper, but the failure to produce the note, will not render incompetent all evidence tending to show which of several persons of the same name made it. If such evidence is insufficient, without the production of the note in fact, of course the Chancellor will only accord to it its proper effect, but there would be no warrant for its exclusion in toto.

If it appeared from the writ, that it was served upon an individual of the complainant's name, the prima facie intendment would be, that it was duly executed, and that he had notice of the pendency of his suit. But whenever it was shown that the complainant was not a party to the writing, but it was made by another person of the same name, resident in the same county, then the presumption would be wholly repelled, and no inference

Parks v. Stonum.

adverse to the complainant could be predicated of the sheriff's return. In this predicament of the case, it would be incumbent upon the defendants to show that the complainant was served with process, in order to fix on him the imputation of neglect, and thus prevent him from asserting his defence in equity. It follows from this view, that the injunction was perpetuated upon satisfactory evidence; the decree is therefore affirmed.

PARKS v. STONUM.

1. The rendition of a decree by the Orphans' Court, for the distributive share of the wife, in the name of the husband alone, is a clerical misprision, and may be amended; it is not an error of which he can complain.

2. Where infants are cited and do not appear, it is not error to render a decree without the appointment of a guardian ad litem.

3. When the record states, "that the exhibits and accouuts, were ordered to be recorded, and spread upon the minutes of the Court, and reported for allowance," at a particular day, more than forty days afterwards, it is equivalent to stating that the accounts were examined and audited.

4. When the Orphans' Court of Conecuh directed notice to be published of the time of the settlement for six weeks, in a paper in Mobile, it is sufficient if the first publication is made as soon after the Court as might be.

Writ of Error to the County Court of Conecuh.

THE writ of error is sued out by those ascertained, by the final decree, to be entitled to distribution of the estate of Joseph Stonum, deceased, against George Stonum, the executor of said Joseph, to revise the proceedings had in said Court, on the matters of the estate, at, and previous to, the final settlement.

So much of the record as is material to the understanding of the errors assigned will be recited.

Letters testamentary were granted to George Stonum, on the 18th of April. 1836, and some time afterwards, (when, does not

Parks v. Stonum.

appear from the transcript,) he was appointed guardian to Seaborn, George, Sylvia, John, Henry, and Bryan, minor heirs of the said Joseph.

On the 11th of June, 1838, the executor presented an account, charging himself with the sum of $2,386, on account of notes belonging to his testator, as his part of the uncollected notes of the firm of Geo. & J. D. Stonum, as well as for some other items of personal property; also, two other accounts, showing assets to the amount of $7,365.

The Court ordered that the account should be received and spread on its records, and reported for allowance on the first Monday in August then next. Also, that notice according to law be given of the same. By a subsequent order, the date of which does not appear, this account was allowed, the necessary notice, as the record recites, having been given.

On the 3d of September, 1842, the executor, in compliance with an order previously made, (at whose instance, or when, does not appear,) appeared and presented his exhibits, accounts, and vouchers, for a final settlement of the estate. The vouchers were received and ordered to be filed in the clerk's office, and the exhibits and account ordered to be received and spread on the minutes of the Court, and reported for allowance at the regular return term of the Court, on the third Monday of October then next. The account thus reported for allowance, seems to be a full account of the estate, and ascertains the sum of $34,956 19, to be due from the executor, and divisible between six heirs, who are not named, making the share of each $5,826 03, due on the 1st January, 1839.

At the regular return term, held on the 17th of October, 1842, the executor came and made his application for a final settlement.

It appeared to the satisfaction of the Court, that the notice for the final settlement had been published for six weeks in the Mobile Advertiser, requiring all persons interested in said estate to appear at the time fixed for the final settlement, and except, plead, or demur to said exhibit, and no person appearing to except, plead, or demur to said exhibit, it was therefore ordered that the said exhibit be allowed to, &c., and that the same be held and taken as a final settlement. The Court then proceeded to ascertain that the executor was indebted to the several heirs of the

Parks v. Stonum.

said estate in the following manner, to wit: John Crittenden, in right of his wife, formerly Caroline E. Stonum, heir of the said Joseph D. for $5,826 03; in favor of George D. Stonum, another heir for the same sum; in favor of Henry B. Stonum, another heir, for the same sum; in favor of Joseph Stonum, another heir, for the same sum; in favor of Martha Stonum, another heir, for the same sum; and in favor of George Stonum, another heir, for the same sum; making the aggregate of the sum to be distributed. The Court then proceeded to render judgment in favor of Crittenden, in right of his wife, and in favor of said heirs, in the name of their next friend and guardian John Crittenden for the several sums so ascertained.

Afterwards, on the 25th May, 1843, the executor was appointed guardian to George D. and on the 2d of November, 1843, he presented his accounts as guardian of George D., Martha, John, Henry B. and Joseph D. the said minor heirs of Joseph D., and charged himself in that character with their several distributive shares, with interest from the 1st January, 1839. Afterwards, on the 13th February, 1844, he presented an account of his guardianship of Martha D., and exhibited the receipt of Isaac C. Parks, purporting to be in right of his wife, the said Martha.

At the same time he exhibited an account current between himself and Crittenden and wife, showing a payment of the-entire sum due them.

The writ of error is sued out in the names of the minors, they suing by their next friend, Isaac C. Parks; and Parks, in right of his wife, as well as Crittenden, are made parties.

The errors assigned are these

1. In rendering judgment for Crittenden, in right of his wife. 2. In proceeding to final settlement without the appointment

of a guardian, ad litem, for the minor distributees.

3. In not having audited and examined the account of 11th June, 1838.

4. In allowing that account, no notice having been given.

5. In not having audited and examined the account for final settlement.

6. In allowing the account-the notice required by law not having been given.

7. In rendering the order, or decree, for final settlement.