[Comer v. Bankhead.]

hibiting a claim to certain money and slaves in the custody of the officers of the State of Georgia. Chief-Justice MARSHALL, delivering the opinion of the court, said: "The claim upon the governor, is as governor; he is sued not by his name, but by his title. The demand made upon him is not made personally, but officially. The decree is pronounced, not against the person, but the officer, and appeared to have been pronounced against the successor of the original defendant. . In such a case, where the chief magistrate of a State is sued, not by his name, but by his style of office, and the claim made upon him is entirely in his official character, we think the State itself may be considered a party to the record. If the State is not a party, there is no party against whom a decree can be made: No person in his natural capacity is brought before the court as defendant."

This same view is held in McCauley v. Kellogg et al., 2 Woods' U. S. Cir. Ct. Rep. 22, and the principle announced, that an action instituted against executive officers of a State, in their official capacity, to compel them to execute a contract of the State, authorized by its law, is, to all intents and purposes, an action against the State, and, as such, is violative of the Federal Constitution. In that case, WOODS, Circuit Judge, discusses the cases of Osborn v. The Bank of the United States, 9 Wheat. 738, and Davis v. Gray, 16 Wall. 203, which are cited and relied on by appellant's counsel in this cause, and shows that they establish no principle contravening the views expressed in McCauley v. Kellogg et al. See, also, Tracy v. Hornbuckle, 8 Bush, (Ky.) 336. A somewhat similar principle was settled in People v. Ambrecht, 11 Abbott's (N. Y.) Prac. Rep. 97 (104). This was an action of ejectment against an agent of the Federal government, who was in possession of a tract of land in the State of New York, which was claimed by the United States, under a grant from the State, for the purpose of a military post and fortification. After declaring the principle, that the United States were not suable, except in such cases as were authorized by act of Congress, the court say: "Ejectment could not therefore be brought against the United States, any more than an action of assumpsit; and it seems to follow, that they can not be indirectly sued in the persons of their agents and officers, and the title and claim thus subjected by indirection to the jurisdiction of the State courts."

Under this view of the case, the bill was not maintainable, the universal rule being, that no State can be sued in its own courts, without its own consent; this being an attribute, or privilege of sovereignty, and being now embodied in the State Constitution, as section 15 of the Declaration of Rights, providing that "the State of Alabama shall never be made defend

[Comer v. Bankhead.]

ant in any court of law or equity."-Langford v. United States, 101 U. S. 341; Divine v. Harvey, 18 Amer. Dec., note, p. 200.

The bill being without equity, there was no error in dissolving the injunction, even though done on other grounds, and the decree of the chancellor is affirmed.

STONE, J.-I fully concur in the argument and opinion of my brother SOMERVILLE, which he has fortified with such an array of authorities. Although negotiated by the warden of the penitentiary, Comer's contract did not become binding, until it was approved by the Governor; and then it became the contract of the State, not of the warden. The consideration proceeds from the State, and the promise of Comer.to pay hires enures to the State. The money, when paid by him, is the property of the State. If Comer were to violate his contract, any suit for its breach would be in the name of the State. Bass, in negotiating the contract, did not transcend his authority, at least, for one year. He did what the law constituted him an agent to do; and when his act received the ratification and sanction of the Governor, it became a contract; not the contract of himself, but of the State, whose authority he had for making it, and which authority he did not transcend, to the extent of one year's hiring, at least. It would be a novel doctrine, if we were to hold that an agent, disclosing his principal, contracting in the princpal's name, and within the scope of authority conferred on the agent, failed to bind his principal, or imposed any liability on himself. In such case, the agent is the mere instrument of the principal-is dwarfed out of sight; and the contract is that of the principal, and may be declared on as made by him. Qui facit per alium, facit per se. apprehend, if the right to sue the State had not been taken away by the constitution, no one would seek to enforce this contract, or have it specifically performed, without making the State a party. It would seem, on principle, that in a suit against the agent alone, no relief can be obtained which has the effect of compelling the principal to perform its contract. If the complainant have any remedy, it is not against the State, nor by bill for specific performance of the contract.

BRICKELL, C. J., dissenting.

VOL. LXX.

We

[South & North Ala. R. R. Co. v. Small.]

South & North Alabama Railroad Co. v. Small.

Appeal from Judgment of Justice of the Peace.

1. Amendment of complaint, in statement of plaintiff's name.-On appeal or certiorari from a judgment rendered by a justice of the peace, though there can not be an entire change of parties, a mistake in the plaintiff's christian name, though no objection was made to it in the justice's court, may be corrected in the complaint filed in the Circuit Court; and if only the initials of his christian name, or an abbreviation of that name, was used in the justice's court, the full name may be used in the complaint filed on the appeal.

2. General charge on evidence; when properly refused.-In an action against a railroad corporation, to recover damages for domestic animals killed by its trains, although there is no direct evidence of the killing, the jury must pass on the sufficiency of the circumstantial evidence adduced, and a general charge on the evidence, against the plaintiff's right to recover, is properly refused.

APPEAL from the Circuit Court of Cullman.

Tried before the Hon. LEROY F. Box.

This action was brought to recover damages for a sow and three pigs, alleged to have been killed by the defendant's trains through the negligence of its servants; and was commenced before a justice of the peace. The complaint filed in the justice's court, or statement of the cause of action, was in the name of Jas. M. Small, and was signed J. M. Small. Judg ment by default was rendered by the justice, for the amount claimed, with costs; and the case was removed by the defendant, by appeal, into the Circuit Court, where a complaint was filed in the name of John M. Small as plaintiff. The defendant objected to the filing of the complaint, and moved to strike it from the files; which objection and motion being overruled, the defendant excepted. The defendant then pleaded not guilty, and that the claim was not presented in writing within sixty days, as required by the statute; and issue was joined on both of these pleas. "On the trial," as the bill of exceptions states, "the plaintiff introduced evidence tending to show that the stock killed was his property, and was of the value of twenty dollars; that the three pigs were found dead on the railroad, at or near a road-crossing, one afternoon in September, 1880, shortly after a work-train had passed, and the sow was found near the same place next morning, torn all to pieces; that the sow was not killed on the afternoon the pigs were, but was

killed that night. Plaintiff's wife testified that she believed, from the appearance of the sow and pigs, they were killed by passing trains, though she did not see the killing. The plaintiff testified, in his own behalf, that he presented his claim for the stock so killed, to the depot-agent at Hanceville, within sixty 'days after the killing, and which claim was sent to J. F. Whitfield, the claim-agent of said railroad company. There was no other evidence in the case, nor any evidence, other than as above set out, that the stock was killed on the railroad, or by the trains or servants of the defendant. On this evidence, the defendant requested the court, in writing, to charge the jury, that they must find for the defendant, if they believed the evidence; which charge the court refused, and the defendant excepted." These two rulings of the court are now assigned as

error.

GEO. H. PARKER, and HAMILL & DICKINSON, for appellant, cited Shannon v. Jackson, 47 Ala. 329; Davis Avenue Railroad v. Mallon, 57 Ala. 168; Bell's Adm'r v. Troy, 35 Ala. 184; Sheppard v. Furniss, 19 Ala. 760; 1 Brick. Digest, 335, § 3.

BRICKELL, C. J.-It is certainly true, that on appeal or certiorari from the judgment of a justice of the peace, in the appellate court, there can not be an entire change of parties. They must remain as they were in the inferior court, unless there be a necessity for a revivor, or a case is made in which, under the statute of amendments, parties may be stricken out, or added.-1 Brick. Dig. 113, § 68. If the proceedings before the justice are, without objection, conducted in the name of a party suing, or being sued, by the initials, or by an abbreviation of the christian name, or by the wrong christian, name, the true name may be introduced into the complaint filed in the appellate court. This is not a change of parties, but the mere correction of a defect in the proceedings before the justice. The defect is also of that character which the statute requires should be disregarded, commanding that the trial shall be de novo.-Couch v. Atkinson, 32 Ala. 633.

There was evidence having a tendency to show that the hogs were killed by the train of appellant. The sufficiency of the evidence was for the jury; and of their province, the charge requested was a clear invasion. The court could not, without error, have given it.

Affirmed.

[Donegan v. Wade.]

Donegan v. Wade.

Bill in Equity for Partition of Lands.

1. Condition annexed to legacy or devise, forbidding contest of will. A testator has an undoubted right, in disposing of his property, to provide that any legatee or devise who contests his will, or seeks to set it aside, shall forfeit all interest under it.

2. Same.-Where the clause of forfeiture declares that any child who "resists the probate" of the will, "or petitions to break or set it aside,' shall forfeit all interest under it, and the property devised or bequeathed to him shall then go to those who have not opposed" it; a child who, without making himself a party to a contest instituted by another devisee, actively interfered in behalf of the contestant, advising and aiding him, is equally within the prohibition; and his interest under the will is forfeited, although the contest was never brought to a trial, but was abandoned.

3. Contested probate of will; proof of grounds of contest.-When the probate of a will is contested, the grounds of contest are required to be filed in writing (Code, § 2317), and become part of the record; and secondary evidence of them can not be received, without proper proof of their loss or destruction, as in case of other writings.

4. Same; same.-Such written grounds of contest being matter of record in the Probate Court, and properly deposited there, proof of recent search for them in that office is, generally, a necessary predicate to the introduction of secondary evidence; and without proof of such search, a certificate of the probate judge, attached to a transcript which purports to contain “a full, true and perfect copy of all the proceedings" in the matter of the probate of the will, and which does not include any written grounds of contest, is not sufficient to authorize the admission of secondary evidence thereof.

APPEAL from the Chancery Court of Madison.

Heard before the Hon. H. C. SPEAKE, as special referee, selected by the parties under the provisions of the statute approved February 23d, 1881.-Sess. Acts 1880-1, p. 66.

The bill in this case was filed on the 14th May, 1877, by William H. Donegan, against David Wade, Harriet Wade, and Amanda Wade, the latter being sued individually and as executrix of the last will and testament of David Wade, senior, deceased; and sought a partition of certain lands, of which the complainant claimed an undivided one-third interest, by a purchase at execution sale against said David Wade, the defendant, and which were in the possession of said Amanda Wade, claiming under the will of said David Wade, senior, deceased, who was the father of the defendants. The lands belonged to said David Wade, senior, at the time of his death, which occurred on the 18th May, 1861; and were devised by him, by