
    BURNS vs. HUDSON.
    pBIIX IN EQUITY BY PEJIE COVERT, FOR RECOVERY- OJ? SLAVES, AS PART ’ OP SEPARATE ESTATE, WITII ACCOUNT OP HIRE, &C.]
    3. Husband's marital rights in and to wife’s personalty. — Prior to the adoption of the statutes of. this State securing to married women their ’ separate estates, if a slave was given by a father to his married daughter, or was purchased by the. daughter at the administrator’s sale of. her father’s estate, and was not in either, case settled to her separate-use, the husband’s marital rights-attached,-and the slave-became his absolute proi>erty..
    2. Variance between allegations - and proof.he bill alleged, that the slave in controversy, in which-the complainant claimed a separate estate under a contract between her husband and one J.( was sold, conveyed and delivered by-her-husband to said J.-f in consideration of tho latter’s agreement to become surety for him in a certain law-suit,, and' to pay whatever judgment might be recovered against him ; “and that-whatever might be left of the value of the negro, and her-hire, after satisfying .the judgment that might he recovered against-' B. (tho husband); and the girl herself,-if-she was not taken to satisfy the judgment, J. was to convey to, and settle upon complainant, in her own right, and as her own sole and separate'-estate, and to her heirs.” The proof was, that B.- delivered the slaV-eto-J. to indemnify him against his liability as surety for the costs of the law-suit, “upon condition that, if tho suit should go against B.,-the negro was to be sold, and the proceeds of sale to be first applied to tho payment of the oosts of the suit, if necessary, and the residue, if any, to be paid 'over to the complainant; but, in the event that B- gained tho suit,•the negro was to be put in the possession of the complainant,,as her ■own and separate property, and J. was to transfer to her all the title, interest and claim that' ho had to the negro, for her separate use and benefit.” llelil, that there was a fatal variance between tbs allegations and proof.
    3. Same. — So, whe-ro tho bill alleged, that J., in pursuance of his previous contract with D., verbally sold and delivered the slave to' the complainant, as her'separate estate, in consideration of her promise to seouro and indemnify him against his liability as surety-for B. in the law-suit; while the proof only showed, that he delivered the slave to her, and said that ho made no further claim to the slave, — the variance was held fatal.
    4-.- Same. — So, Where tho bilí alleged, .that the complainant afterwards delivered the slave to tlie‘defendant,upon his promise and agreement ' to indemnify J. against his liability*as surety for B., to satisfy whatever judgment might be recovered- against B., to keep the slave hired out at a specified price, to return her to the complainant after it was ascertained what he had to pay on the judgment against B., if the negro was not taken to satisfy the judgment, and to account for her hire; while the proof showed, that the- defendant’s agreement was to take the place of J. as surety for B., and to-dispose of-the slave, at the termination' of the-suit, in like manner-as J'l was to have disposed of her under his agreement with B., as above stated, — the variance was held fatal.
    5. Dismissal without prejudice. — The complainant in this case being a married woman, suing by her next friend, and there being a fatal variance between the allegations and proof, the bill was dismissed without prejudice.
    
      Appeal from the Chancery Court of Calhoun.
    Heard before the Hon. James B. Clark.
    Tup bill in this case was hied by Mrs. Mahulda Burns, tbe wife of A. S. Burns, suing by her next friend, against Samuel P. Hudson and the said A. S. Burns ; and sought a recovery of certain slaves in the possession of Hudson, in which the complainant claimed a separate estate, with an account of their hire. The complainant asserted title to the slaves under a verbal gift from her father, in South Carolina, in 1831, of the female slave who was the mother of all the others; a subsequent purchase of said slave at the administrator’s sale of her father’s estate, in South Carolina, prior to the year 1840 ; a verbal contract between her said husband and one John P. Jennings, made some time during the year 1842 or 1843, by which Jennings obtained the possession of said slave ; a subsequent verbal contract between Jennings and herself, by which she obtained the possession of the slave ; and a verbal contract, of later date, between herself and the defendant Hudson, under which she delivered tire slave to him. 'The defendant Hudson denied the title asserted by the complainant, and claimed title in himself under a purchase from said Jennings and A. S. Burns, made in the presence, and with the consent of the complainant. The material allegations of the bill, and the substance of the evidence, are stated in the opinion of the court. On final hearing, on pleadings and proof, the chancellor dismissed the bill; and his decree is now assigned as error.
    JOHN White, for the appellant.
    G-. C. Whatley, contra.
    
   R. W. WALKER, J.

There is no doubt that, When the contract was made between A. S. Burns and John B. Jennings, the negro girl Lucy was the property of the former ; for, whether we consider the original source of title, as a gift from Mrs. Burns’ father to ber, or as her purchase at tbe administration sale, it is plain that, as the slave was in no way settled to the separate use of the wife, the marital rights of her husband attached, and the property became his absolutely.

If, then, Mrs. Burns has now a separate estate in. the slave, or can justly claim a settlement of the same to her separate use, she must deduce her right from the transactions with John B. Jennings, or from the subsequent contract with the defendant. However well founded such a claim may be in point of fact, it can be of no avail to the'complainant in -this suit; for the reason, that the allegations and proof, in -reference to the matters which form the foundation of her title to relief, if she has any, do not correspond.

The amended bill alleges, that the complainant’s bus*■band, being engaged in a law-suit, or law-suits, with one .Hindman, sold, conveyed, and delivered the girl Lucy t® •JohnB. Jennings.; and that Jennings, as a consideration ¿therefor, contracted and agreed to become surety for Burns in said suit, or suits, in some way, and to pay what•ever might be .recovered against Burns; and whatever might he left of the ■ value of the negro, and her hire, after •satisfying the judgments that might he recovered against Burns, and the girl herself, if she toas not taken to satisfy the judgments, Jennings was to convey to and settle upon complainant in her own right, and as her oivn sole and separate estate, and to her heirs. Tbe only evidence in relation to tbe contract between Burns and John B. Jennings, •is the testimony of William M. Jennings, the son of John •B., who states, that Ms father became surety for Burns, for •cost, in a law-suit between Burns and one Hindman ; and that to indemnify Jeuniugs, Burns delivered the negro Lucy into his possession, upon condition, that if the suit should go against Burns, the negro ivas to he sold, and the proceeds of the sale first applied to the payment of the costs oj the suit, if necessary, cmd the residue, if any, to he paid ■over to the complainant; in the event,- however, that Burns gained the suit, the negro ivas ■ to he put in the possession of the complainant, as her own and separate property, and Jen-r-nings was to transfer to her all the title¡ interest, and claim that he had to the negro, for her separate use and benefit.

Tbe bill further alleges, that in 1843 Jennings, by a. verbal contract, sold and delivered t'lie negro Lucy to complainant, as her separate estate, and to her heirs, hr-pursuance of liis previous contract with Burns, in consideration of the promise of complainant “to secure and indemnify, and cause to be secured and indemnified, the said .Jennings against alb loss and liability, as surety for ' Burns in the suit or suits above-named.” The only evi- - dence introduced to support this allegation, is the testimony of. Win. M. Jennings and Mrs. Cowart. Tbe first-*named witness states, that on a particular occasion in 1843,, and in the presence of .the defendant,.-Mrs. Cowait, and the witness himself, John B. Jennings remarked, that defendant! was willing to take his place as surety, and asked the complainant if she was ■ willing ; to which she gave her assent. Jennings then sai.d to her, .“ There is your negro • Woman; take her, and dispose of her- as you choose.” Mrs, Cowart says, that Jennings remarked to the complainant, that he now delivered her negro girl to her, and made no further claim to her, There is no evidence of. an agree- - ment, on the part of the complainant,, to secure Jennings-against loss as surety for Bums, which is the alleged con-.-sideration for the transfer j nor is anything .said as to a . delivery to the separate use of the complainant. Cer- ■ tainly, the transaction, as proved, was'not an .execution of • the original contract between. Burns and Jennings.

„The-bill further alleges, that upon the same day on Which. Jennings delivered the girl to complainant, ,or:, shortly thereafter, ,the complainant and defendant made", a contract,-by, which tbe complainant agreed to, and did,, deliver .the negro Lucy to the defendant, and the defendant . agreed to secure and indemnify Jennings as surety for Burns, , and to pay and-satisfy .whatever judgments might be re-- - covered against-Burns that, to make him safe in so doing, lie would take tbe girl into bis possession — that be would keep her hired, at some good bouse, at six dollars per month ; that he would return the girl to complainant, after it was ascertained what he would have to pay on whatever judgments might be recovered against Burns in said cases' in order to save Jennings harmless, if said negro was n'ot -taken to satisfy the judgments that might be recovered therein ; 'and upon that agreement, and that lie would also account to complainant for the hire of said girt, the defendant took possession of said girl.” The only proof to sustain this allegation, is the testimony of the same witness,' J. M. Jennings, who states, that he delivered "the negro to Hudson, for complainant; and that the -slave was to he dis-'posed of in the hands of Hudson, at the termination of the law-suit between Burns and Hindman, in like manner as slie was to have been by John B. Jennings. He further states, that it was agreed, that Hudson should take the place of Jennings as surety, and become liable in like manner as Jennings. Now, looking to the téstimony of the same witness, to ascertain the manner in which the girl Was to have been disposed of by Jennings a'trthe termination of the suit between Bu-rns-vand Hindman, we find that the agreement was, that “if the suit should go against Burns, the negro was to be sold,-and the proceeds of the sale first applied to the payment of the costs of tbe suit, if necessary, and tbe residue, if any, to be paid over to complainant. In the event- -that Burns gained the suit, the negro was to be put in tlie possession of complainant, as her separate property.” The difference between this contract, and that which-the complainant alleges she made with Hudson, is obvious.

If is evident "from this review of the allegations of the bill,.and the evidence adduced in support of them, that in regard to each one of the successive transactions through which the complainant seeks to deduce her claim to relief — the original contract between Burns and Jennings, the subsequent transfer of the slave by Jennings ib the complainant, and “the contract between tbe complainant and defendant — the cáse as stated is not the case which is proved. Consequently, there was no error in dismissing the bill.

The evidence, however, does, as we have seen, tend to show that the defendant obtained possession of the negro under an agreement that he should take in all respects the place of Jennings — that is, that he was to become bound for Burns in like maimer as Jennings had been; and that, at the termination of the law-suits, he would make the same disposition of the negro which, by his contract with Burns, Jennings had agreed to make. Without in any manner committing ourselves to the validity of any claim which complainant may assert as growing out of these facts, we think that, under all the circumstances of the case as disclosed by the record, it is proper that the bill should be dismissed without prejudice. Accordingly, the decree -of the chancellor is reversed, and a decree here rendered, dismissing the bill without prejudice. — Danforth v. Herbert, 33 Ala. 499; Singleton v. Gayle, 8 Porter, 270; Cameron v. Abbott, 30 Ala. 419 ; Lang v. Waring, 25 Ala. 625 ; Edwards v. Edwards, 30 Ala. 394. The complainant’s next friend must pay the costs, both of this court and of the court below.

A. J. Walker, C, J., not sitting.  