
    HUMPHRIES vs. DAWSON.
    
      [DETINUE FOR SLAVES.]
    i„ Amendment of complaint — Where the plaintiff sues as “ trustee of -L. H. and F. D.,” two married women, the complaint may he amended, (Code, § 2403,1 by adding the words “ and for the remainder-men who are their children.”
    fi. Plea-in. abatement of pendency:of another- acüon. — ‘The priority, and not the mere pendency, of another suit founded on the same cause of action, is available under a plea in abatement; but neither a bill in. chancery, nor an action brought' id anotheif State, is good matter'in ¡abatement.
    3,' Compelmey. of .donor, as witness for»donee, — ¿The .donoir of a slave is- a . competent witness for the donee, or- one olaiming.under the donee, in a suit involving the title to the slave.
    4- Identification of exhibit to deposition. — Where the cotamissiener cortil fi.es, “ that the annexed deed, hereto attached, marked ‘ A,’ was shown to the witness, and by him examined and recognized to he the original deed by him signed and delivered,” a deed which is shown to have been enclosed in the package containing the deposition, and which is> marked as stated in the certificate, is sufficiently identified, as the exhibit referred to.
    5, Construction--of deed, as to respective rights: of trustee-and beneficiaries*.. Where a female slaye is conveyed by deed to a trustee, “ in trust that-he shall take and receive alkthe profits and income arising from the said slave and her ine^sase, and apply the aame to the education and maintenance ofi.L, and H.,” his two .daughters,..“and in trust, upon, the marriage or coming of age of the said D. pond- H., to permit them to have the full use, authority and command over the said slave and her increase, ($>ydivision or partition having been made,) for and during- the natural-lives of the said L: apd H.;„ and»,after their deaths intrust further-to convey the respective portions of the property to their children, iit fee-simple forever,” — if the-slaves are divided between the two daughters, .on their.marriage .or coming of age, and the respective-portion of each.- delivered to her by .the trustee, ho cannot afterwards, during;pie lives of the daughters, maintain detinue against them, or any one. holding under thapi, to recover the slaves; and'if, without making;a.division,he delivers all the slaves to one of the daughters,/»! her-marriage, and afterwards conveys other property to the other daughter iu liaiv of her- interest in the slaves, he cannot maintain detinue for.the slaves, against a purchaser from the daugh, ter to whom they were delivered.
    Appeal-from, the Circuit Court’of Chambers.
    Tried before tbe Hon.. Robert Dougherty.
    ' This action was brought by Samuel Dawson,, against John R. Humpbides, to recover a negro woman named Becky, with her four children, and damages for their detention. The original complaint is nowhere set out in the record; but the bill of exceptions states, “that-the plaintiff moved to amepd bis complaint, by adding,, after the words ‘ trustee of Leonora Hobbs and Frances Dillard,’ the words £ and fqr the remainder-men which are their children f.to which amendment the defendant, objected, as-changing the character in ..which the-plaintiff,sued, and as putting a new title in issue ; -.but. the*court overruled..the objection, and allowed tbe amendment to be made, and the defendant excepted.” The defendant then prepared and tendered a plea in abatement, duly verified by affidavits alleging that, on the 24th May, 1858, before tbe complaint in this case was amended, a bill in equity was filed on the chancery side of, tfie circuit court of, Lo,wndescounty, .Mississippi, in the name of Samuel Dawson, as trustee of Leonora Hobbs and Frances Dillard and their children, against the defendant in this suit and others, to recover the slaves here in controversy; which suit,, the plea averred, was still pending and undecided, and involved the same title that was put in issue by the amended complaint. The court rejected the plea, on the ground that it came too late; to which the defendant reserved an exception.
    The plaintiff claimed the slaves under a deed from John B. Dawson, which was executed in South Carolina, dated March 1, 184L, and in the following words: “Know all men by these presents, that for and in consideration of the natural love and attention I have and bear to Leonora and Frances, daughters-of Samuel Dawson, and for and in consideration of the sum., of one dollar to me in hand paid at and before the sealing and delivery of these presents, the receipt whereof I do hereby acknowledge, have bargained, sold, assigned, and set over to the said Samuel Dawson, all my right, title and' interest in and to a negro girl, named Becky, and her increase; to have and to hold the said negro girl and her increase, unto- the said Samuel Dawson, Mis heirs, and assigns,...to his and their own proper use and behoof forever; in trust, nevertheless, that the said Samuel Dawson take and receive all the profits and income arising or to arise from the said- slave and her increase, and apply the same to the education and maintenance of Leonora and Frances; and in trust, upon the marriage or coming of age of the said Leonora and Frances, to permit them to have the full use, authority and command over Becky and her increase, (á division or partition having been made,) for and during the .natural lives of them, the said Leonora and Frances; and after their - death,, in trust further to convey the respective portions of the above-named property to the children of the said Leonora and Frances, in fee-simple forever. In witness whereof,” &c.
    For the purpose of proving the execution and delivery of this deed', the plaintiff took the deposition of said John D. Dawson. Before the trial began, the defendant moved to suppress the deposition of said Dawson, “ on the ground that he was the donor of the property sued for, and because he cannot be received as a witness to prove the execution of said deed, unless the testimony of the subscribing witnesses thereto is shown to be inaccessible.” The court overruled the objections, and the defendant excepted. The defendant also moved to suppress the original deed, which was made an exhibit to Dawson’s deposition, “on the ground that it is notdn any wise attached to said deposi-. tion, nor certified by the* commissioner.” The commissioner stated, in his certificate to the deposition, “that the annexed deed of conveyance, -’hereunto attached, marked s A,’ was shown to the‘witness, and by him examined and recognized to be the original deed by him signed and delivered.” The deed, on inspection, 'was found'd© be endorsed “A,” and was shown 'to have been enclosed in the package containing the deposition of the witness, and' to have been attached to the interrogatories after-the deposition had been opened. The court refused to suppress’the deed,- and 'the defendant excepted.
    The evidence showed that, soon after the marriage of Leonora with A. BL Hobbs, which was in 1-841, she and her husband removed to this State, and brought the slaves with them; and that, in 1845, they sold* the slaves'to one Lawrence, who afterwards sold and-conveyed them to the defendant. The defendant also introdueedrevidence showing that Samuel Dawson delivered the slaves to said Hobbs and wife, soon after their marriage, and consented "that they might bring the slaves with them to this State-; and that the subsequent sale by Hobbs and wife to Lawrence was made with his approbation, and by his authority. There was other evidence in the case, also,- but it-requires-no particular notice.
    The court charged the jury, among other things, as follows: “3. That the deed from John D/Dawson to Samuel Dawson required that a partition or division-of said slaves should be made, before the trust could be executed in favor of said Leonora, so as to vest the legal title to any portion, of said property; and that, unless the proof showed that such division or partition had been made, ITobbs and wife had no legal interest which they could dispose of.” The defendant reserved an exception to this charge, and requested, among other charges, the following: “5. If the jury believe, from the evidence, that on the marriage of Leonora with said Hobbs, plaintiff delivered the property to them under the trust created by the deed from John D. Dawson, for the purpose of letting, them keep the entire property without division or partition; and that after the marriage of. Prances with, Dillard, plaintiff paid them in other property, ,or agreed to .do so; and that they consented to such arrangement; and that plaintiff, in pursuance of ■such agreement, paid them a tract of land; and that they received .the .same in part payment of their interest in the slaves .sued .for sin -this action, for the purpose of letting Hobbs and wife keep the entire property in the slaves; and that all this took place before the slaves were sold by Hobbs and wife to .Lawrence, — then the .plaintiff cannot recover in this action, if the defendant has acquired the interest of said Hobbs and wife.” The court refused this charge, and the defendant excepted to its refusal.
    All the rulings of the- court, to which, as .above stated, exceptions were- reserved -by the .defendant, are now assigned as, error.
    Richards, & Falkner, for appellant.
    Goldthwaite, Rice & Semple, contra.
    
   R. W. WALKER, J.

The -original complaint described the plaintiff as “trustee of Leonora Hobbs and Frances Dillard.” Upon the trial, against the defendant’s objection, the plaintiff was permitted to amend the complaint, by adding, “and for the remainder-men which are their children.” In this we think there was no error. The original complaint averred'that the plaintiff was suing, not as an individual, but in a representative capacity. The amendment is but a further and niore accurate description of his representative capacity, and did not substitute a new cause of action. If the complaint had been by the plaintiff individually, he could have amended it, so as to authorize a recovery in his representative capacity. — Crimm's Adm'r v. Crawford, 29 Ala. 626. In that case, it is said — -“Such an = amendment does not substitute a new- cause of action. The cause of action is really the same. The amendment merely' inserts that which is necessary to secure a recovery upon* the existing cause of action, which was imperfectly set’ forth.”

The matter of the plea in? abatement, which was'-rejected by the court, would not have been 'available to the' defendant; and hence its rejection-could work no injury to-him. It is the priority of a suit, that abates another" founded on the same cause of action. — 1 Chitty’s Pl. 215 ; Renner v. Marshall, 1 Wheaton, 215. If there be any reason which renders this principle inapplicable in the present case, a fatal objection to the plea is found in the' other principle, that the pendency of a suit in another State' is no cause of abatement of a suit instituted iir-this State. Browne v. Joy, 9 Johns. 221; Walshe v. Durkin, 12 Johns. 99; Salmon v. Wooten, 9 Dana, 422 ; McGilton v. Love, 13 Ill. 486 ; Drake v. Brender, 8 Texas, 352 ; 2 Parsons on Contracts, 232 ; Hatch v. Stafford, 22 Conn. 496, et seq. It appears, also, that the pendency of a bill in eqpity has not' usually been considered sufficient ground for a plea in abatement of a suit at law. — Colt v. Partridge, 7 Metcalf, 570 (576); Blanchard v. Stone, 16 Vermont, 234; Hatch v. Stafford, 22 Conn. 495-6 ; Story’s Conflict of Laws, § 610 (a), Bennett’s edition.

The motion to suppress the deposition-'of-John D.~ Dawson was properly overruled. The donor is a competent witness for the. donee, or one holding under the latter. Jones v. Hoskins, 18 Ala. 489.

There was no error in overruling the motion to suppress the original deed of gift.

The bill of exceptions does not show that any exception was taken to the ruling of the court iii relation to the offer i<af the defendant to read a portion of the former deposition • of John D. Dawson.

It will not be denied, ¡-that, if, on the marriage, or coming of age of ¡the. daughters, the property had been divided, and their respective portions delivered-to them by the trustee, he could not afterwards, and during the lives of the daughters, have maintained detinue for the recovery of the slaves, against the daughters, or any one holding under •them. Eor, whatever might be the case as to the continuance of the legal title in the trustee, it is obvious that, on the facts supposed, the trustee would not, during the lives *«f the daughters, have the legal right to the possession -of the slaves. ¡On the «contrary, the right to the possession would, according to the stipulations of the deed, be in the ■.daughters; and where the deed stipulates for the possession •-of the cestui que trust, the trustee, though he may be ■•clothed with the legal ‘title, cannot maintain detinue against the cestui que trust. — Gunn v. Barrow, 17 Ala. 247.

Now it is obvious that the deed contemplated a division •of the property on the marriage .or coming of age of the • daughters. That is the period indicated as the time at •■which it was-the duty of the trustee ¡to make the division. It is obvious, moreover, that the direction that the division ■.should be then made, was intended mainly for the benefit »©f the daughters; .its purpose being, to secure to them, .after their marriage, or .coming of age, and during their lives, the separate use and enjoyment of equal shares of thé ¡property. The division then -made would, it is true, have •the secondary effect of ascertaining ¿he respective portions ■■of the property to which 'the rights of each set of remain•der-men would-attach. But it is not to be doubted, that '•the primary purpose of-making the division at the particular time designated by the donor, was what is above stated. It appears, however, thsitthe trustee failed to perform the ¡¡duty caát upon him, to divide the property on the «marriage or coming of age of the daughters. The evidence itended to show that, without making any such division, he nlelivered.all the slaves to one of the daughters after .heir marriage. The bill of'exceptions discloses, moreover, that there was evidence tending to show that, after the marriage of tire daughters, an arrangement was effected, to which--tfhe trustee was a party, and-the validity of which he is therefore in -no -condition do question1, -whereby Mrs. Dillard-received-from the trustee other'property-, in lieu of her'interest in-the slaves,-' for ■ the purpose * of ■ Vesting in Mrs. Iiobbs,- who was then- in possession, the’entire interest of both daughters under the deed ;• and-that in pursuance of this arrangement,-'Mrs. Ilóbhs and her husband remained in possession1 of the entire -property until they •sold to Lawrence.

Omth-is state of faóts, it is obvious that;*so far'as'the interests of the daughters are concerned, the necessity for a division is obviated, by the arrangement whereby the two interests weremerged, and vested in one-of-the daughters. Id is also* clear, that if the facts were as here supposed,.‘the division of the property which, under the deed, it was the duty of the trustee to-make; on-the marriage or coming of age of the daughters, was no longer practicable when this suit was begun.- The division' intended by the donor was to-’be made, as wo have seen, omthe marriage or-coming of •age of the daughters. The property consisted of a female slave and her increase. From the- nature-of the'property',-., constant changes must be going on in its value- and-amount, so* that, at the time this-.suit was brought, it was manifestly impossible to make-the very division-which should have been made at the- time ■ appointed”by the deed. - In other words, it would not be practicable to so divide the property, iml-S53, as to allot to' each daughter the'very share which would have falten to her if the 'division ha'd been made four or five years sooner. So-far-as the interests of the remainder-men are concerned,- ¿division madSnow would be no ■more in conformity with the requirements'of the deed than one*-which may be" made 'at- the terminatibm off'-'the life-estate. Thé trustee has suffered the time appointed for the division to pass by.'" The donor intended that the division should take' place on the marriage or coming of age of the daughters, before the delivery of the property to them, and when both daughters had an interest in the property, and each might be considered as representing her own children, the remainder-men after her, in the making of the division. By the act of .the-.trustee, the making,.of ■ the division at the time, and. under the circumstances intended by the donor, has become impossible ; -and'' so fair ■ as the interest's of the remainder-men, or the purposes of the donor in regard to them,-are concerned,..there is no- reason- why the division may not- be made -at the termination ■■ of the life-estate, as well as at this, time., -

The ground,on which the trustee’s right to redhcethe property to’hfe' possession--is placed, that the trust."in -reference to the.division has not" been executed. But,,as we have seen, there was evidence tending-to show thatrby the agency of the trustee himself;-a state‘of facts has been* brought about which renders the execution of that trust, as contemplated by the deed, no -longer-practicable ; and oua-.npinion is, that? if the-facts referred to were established by. the evidence, it was not essential to the defense of.this suit to show, that there had .been an. actual division or partition of the property. Wé think that "-the court erred^in the third charge given; and in refusing to give the fifth charge asked by the-defendant..

We do not intend, by. anything we .-have, said, to express - an opinion adverse to the continuance of the legal title in--,the trustee ; nor are we to be' understood as indicating any opinion upon the question of . the .-right - on duty of thé trustee to protect, by proceedings in ..another,.forum, the interests of the remainder-men.

Judgment.reversed, and cause remanded.  