added, "the presiding judge may set down for trial for the third week any civil business undisposed of during the first week of the term." Code 1886, p. 225, note. It is insisted that the judge made no order setting this cause down for trial for the third week, and for this reason the judgment ought to be reversed. Whatever force there might be in this suggestion, had the judgment been one by default merely, or had the defendant appeared and objected to proceeding on the ground that no such order had been made, it has no force in the present state of the record. The defendant is shown to have appeared, and to have withdrawn such appearance on the day the judgment was rendered. He said nothing in bar or preclusion of the plaintiff's demand in the lower court, and that was a waiver of his right, if such he had, to raise the objection that the judgment was rendered without setting the cause to be heard during the third week.

2. The insolvency of the estate of Heifner, the intestate of the appellant, Mrs. Mount, did not affect the liability of the sureties on her appeal-bond, which was approved by the justice of the peace. The obligation was to pay such judgment as to debt and costs as might be rendered against said administratrix. The judgment rendered against her was for the same amount as that against her sureties. The only difference was that no execution could issue against her in view of the insolvency of the estate, such judgment being required by statute to be certified to the probate court. Code 1886, § 2251. The discharge of the administratrix as to a part of the judgment, by reason of the insolvency of the estate of her intestate, was effected by operation of law, without the consent or procurement of the creditor. It did not, therefore, operate to discharge the sureties of any part of the obligation of their original contract. State v. Parker, 72 Ala. 181; Phillips v. Wade, 66 Ala. 53; Phillips v. Solomon, 42 Ga. 192; Brandt, Sur. § 128; Bean v. Chapman, 62 Ala. 58.

3. The statute authorized the rendition of judgment against the sureties on the appeal-bond, upon the rendition of judgment against the principal on the trial of the appeal de novo in the circuit court, not only for the amount of the debt or demand, but for the costs of the inferior and appellate courts. Code 1886, 3410; Code 1876, § 3125; Neff v. Edwards, 81 Ala. 246, 2 South. Rep. 88.

We discover no error in the record, and the judgment is affirmed.

TANNER & DELANEY ENGINE Co. v. HALL.

(Supreme Court of Alabama. March 1, 1889.)

1. PARTNERSHIP-EVIDENce of.

In an action to charge defendant as a member of an alleged partnership, evidence that it was a matter of common notoriety that a certain business was carried on in the name of the alleged partnership is not admissible, in the absence of evidence that the debt sued for was contracted because of such notoriety, and related to such business.

2. PRINCIPAL AND AGENT EVIDENCE.

Where it is sought to affect one with the acts of an alleged agent, the declarations of the latter are not admissible to prove such agency, in the absence of independent evidence of it.

3. EVIDENCE-BEST AND SECONDARY.

In an action to recover the purchase price of certain property, where the defendant claims that the property sold had been taken back by the plaintiff, oral evidence offered by the plaintiff that he had taken such property in attachment proceedings is not admissible.

Appeal from circuit court, Geneva county; J. M. CARMICHAEL, Judge. This was an action brought by the appellant against the defendant, as one of the firm of Hall & Mobley, and was based on several promissory notes,

made to the plaintiff by and signed in the firm name of Hall & Mobley. The evidence for the defendant tended to show that there was no partnership existing between the defendant, Hall, and said Mobley. To prove the existence of said partnership, and for the further purpose of showing notice to the defendant that the business was carried on in the firm name of Hall & Mobley, the plaintiff undertook to prove by the deposition of one Butler that "it was understood and common knowledge in and around Chipley, Fla., that Hall was a partner of the firm of Hall & Mobley, in the saw-mill business." On motion by the defendant that this evidence be excluded from the jury, the court excluded the evidence, and the plaintiff thereupon excepted. The notes, which were the basis of this action, were given for the purchase of an engine sold by the plaintiff. The defendant testified as a witness for himself that the said Butler "took the engine, sold defendant by plaintiff, back, representing himself that he was the agent of plaintiff, and that said Butler sold said engine for one thousand dollars." The plaintiff moved to exclude said evidence of the defendant from the consideration of the jury, on the ground that "the fact of Butler's agency could not be established in that manner." The court overruled the motion, allowed the evidence to go to the jury, and the plaintiff excepted. The plaintiff then proposed to prove by said Hall that "before said Butler took said engine back it had been sold under attachment proceedings in the state of Florida, and that at said sale plaintiff became the purchaser for $400, and afterwards made sale of the engine for $1,000, and that this was the manner in which said Butler took said engine back." The court refused to allow such proof to be made, on the ground that none but oral evidence was offered to prove the attachment proceedings. To this ruling by the court the plaintiff duly excepted. The suit was brought for $1,000. There was verdict and judgment for $500, and the plaintiff now prosecutes this appeal, and assigns the several rulings of the court on the evidence as

error.

M. E. Milligan, for appellant.

SOMERVILLE, J. 1. It was not competent to prove the existence of a partnership between the defendant, Hall, and Mobley by general reputation or common rumor. Carter v. Douglass, 2 Ala. 499; Humes v. O'Bryan, 74 Ala. 64. The court, under this principle, properly excluded the testimony of the witness Butler, to which exception was taken by the defendant. If the fact had beer proved that the saw-mill business was openly carried on in Chipley, Fla., in the name of Hall & Mobley, as partners, perhaps the common notoriety of this fact might also be proved to charge the defendant with probable knowledge of it, in order to show that by culpable silence or express agreement the defendant had permitted himself to be held out to the public as a partner, provided it were further proved that the debt sued for was contracted on the faith of this fact, and related to the alleged partnership business. But that is not this case. Humes v. O'Bryan, supra; Woods v. Transportation Co., 84 Ala. 560, 3 South. Rep. 475; Fertilizer Co. v. Reynolds, 85 Ala. 19, 4 South. Rep. 639.

2. The record contains no evidence tending to prove that Butler was the agent of the plaintiff, having authority to take possession of the engine. His declaration, therefore, representing himself to be such agent, when he took possession of the engine, was not admissible against the plaintiff without independent evidence of such alleged agency. Martin v. Brown, 75 Ala. 442; 3 Brick. Dig. p. 21, § 40. The court erred in not excluding the testimony of the defendant as to Butler's representations that he was acting as an agent for the plaintiff in assuming authority to take possession of the engine.

3. There was no error in excluding the proposed oral evidence of the attachment proceedings in Florida, under which it was claimed that the engine had been sold and purchased by the plaintiff. Those proceedings were mat

ters of record, and constituted material evidence affecting the validity of the seizure of the property, and the amount of the plaintiff's recovery in the action. This record should have been proved by certified transcript, and not orally by secondary evidence.

Reversed and remanded.

COBBS et al. v. BRYANT.

(Supreme Court of Alabama. March 1, 1889.)

NEGOTIABLE INSTRUMENTS-TRANSFER-PROOF OF OWNERSHIP.

Under Code Ala. 1886, § 1761, providing that a negotiable instrument payable to a person or bearer shall be construed as payable to such person or order, a person other than the payee, who brings suit on such instrument without indorsement, and who is shown to have been the agent of the payee, and originally brought the suit in that capacity, but amended by striking out the name of his principal, has the burden of proving, if his beneficial ownership is denied, by evidence other than the mere possession of the note, that he is the beneficial owner.

Appeal from circuit court, Geneva county; J. M. CARMICHAEL, Judge. This suit was brought by J. C. Bryant against the appellants, A. A. Cobbs et al., and was founded on a promissory note alleged to have been given by defendants to the Singer Manufacturing Company. There was a sworn plea 'by defendant Cobbs denying the execution of the note as to himself, and also denying the ownership of the note by plaintiff. Upon the evidence defendants asked the court to charge the jury in writing "that if they believed the evidence they must find for the defendants." The court refused to give this charge, and the defendants duly excepted, and now assign this refusal by the court as error. There are other assignments of error, which it is not necessary to set out or notice on this appeal.

W. D. Roberts, for appellants. J. F. Roper, for appellee.

SOMERVILLE, J. The note sued on is payable to the Singer Manufacturing Company, or bearer, in the sum of $70.50. Under the provisions of section 1761 of the Code, a bond, bill, or note, except those issued to circulate as money, "if payable to an existing person or bearer, must be construed as if payable to such person or order." Code 1886, § 1761; Blackman v. Lehman, 63 Ala. 547. Construing the note to be payable to the payee named, or order, and there being no indorsement of the instrument by the payee,—no written order directing its payment to another, --the legal title was clearly not in the plaintiff, Bryant. The note being a contract for the payment of money, and at the same time not being commercial paper, an action on it could be prosecuted in the name of "the party really interested," or the beneficial owner, whether he had the legal title or not. Code 1886, § 2594. The title of the plaintiff is disputed by a sworn plea denying that he is the beneficial owner, in accordance with the requirements of rule of practice No. 29, (Code 1886, p. 810,) and this cast on the plaintiff the burden of proving such ownership. Ordinarily possession of personal property is prima facie evidence of ownership, but the possession of an agent does not prove an ownership in him of the principal's property. The plaintiff is shown to have been the agent of the Singer Manufacturing Company, the payee of the note. This suit was originally brought before the justice's court in his name as such agent, and was afterwards amended by striking out the name of his principal. There is other evidence also of such agency. He proved no title to the instrument except a naked possession of it. The case of Jarrell v. Lillie, 40 Ala. 271, is a direct authority against the right of the plaintiff to recover on such a state of facts. In that case there was a plea, verified by affidavit, denying that the plaintiff was the real owner of the notes sued on, which were payable to certain named payees, or bearer. The plaintiff was the attorney of the payees,

and sued in his own name, relying on the fact of his possession as evidence of ownership. It was held that the possession of a note by an attorney, as such, was not sufficient to authorize a recovery by him in his own name, his ownership being denied by sworn plea.

The court erred in not giving the charge requested by the defendant, instructing the jury to find for him if they believed the evidence. Reversed and remanded.

GOODWIN v. SIMS.

(Supreme Court of Alabama. March 1, 1889.)

1. JUDGMENT-RECITALS IN RECORD OF PROBATE COURT-CONCLUSIVENESS.

A recital, in the record of proceedings in probate court for the sale of a decedent's lands, that plaintiff, one of the heirs, being a non-resident, was notified of the application for the sale, and of the day set for hearing, by publication in a newspaper published in the county, is conclusive on collateral inquiry unless falsified by the record itself.

2. SAME-CLERICAL MISTAKE.

The record contained a preliminary order, dated December 4, 1878, reciting that "on this day" a petition for an order to sell decedent's lands was presented, and appointing January 15, 1878, as the day for hearing the petition, on which date the hearing in fact occurred, and the order of sale was granted. The petition mentioned was verified December 4, 1877. Held, that the record corrects itself, and makes it manifest that the date of the preliminary order was a mistake, and should have been December 4, 1877.

8. SAME-DEPOSITIONS TAKEN AS IN CHANCERY CASES.

Code Ala. 1886, § 2114, provides that no order for the sale of land belonging to any estate shall be made when there are minors interested in the estate, unless the probate court has taken evidence by deposition as in chancery proceedings, showing the necessity for such sale; and that a sale made without compliance with this provision shall be wholly void. A decree of sale recited: And it appearing to the satisfaction of the court, * * * from the depositions of" certain named witnesses, "which depositions are ordered to be filed of record," that a sale is necessary, etc. It also appeared from the record that on the same day on which the order of sale was made a commission issued to take the depositions of the same witnesses named in the decree, and the commissioner certified that the witnesses were examined on the following day. Held, that the recitals of the decree are, in effect, that the depositions had been taken as in chancery cases, and are therefore conclusive when collaterally attacked, notwithstanding the commissioner's certificate, and the depositions appearing in the transcript.

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

This was a statutory action of ejectment, brought by the appellant, Henry T. Goodwin, as one of the heirs of Thomas Goodwin, deceased, against the appellee, Robert Sims, to recover lands owned by the said Thomas Goodwin at the time of his death. There was a judgment for defendant, and plaintiff appeals.

Plaintiff based his right to recover on the ground that he was one of the 12 heirs of said Thomas Goodwin, who died seised of the lands in controversy. The appellee claimed under a sale made by the administrator of the estate of said Goodwin, under an order of the probate court, for the purpose of division among the heirs. Under this order the administrator sold and conveyed by deed the lands in controversy to one Thomas Sims, and Sims sold and conveyed to the appellee.

A. Y. Harper, for appellant. Hewitt, Walker & Porter, for appellee.

CLOPTON, J. The admission that Thomas Goodwin was seised and possessed of the land sued for at the time of his death, and that plaintiff, who is appellant, is one of his 12 heirs, shows prima facie a title which entitles the plaintiff to recover an undivided one-twelfth interest, unless his title has been divested in some legal mode. In order to show that it had been divested, the defendant introduced in evidence, against the objection of plain

tiff, a transcript of the proceedings in the probate court, under which the land was sold and conveyed to defendant by the administrator of the deceased. The question arises on the validity of the order of sale, which is impeached on the ground that the record does not affirmatively show the jurisdictional facts.

That the jurisdiction of the probate court to order a sale of the lands of a decedent is statutory and limited, and that it must appear from the record, has been placed, by the repeated decisions of this court, beyond the pale of discussion. No intendments will be made in favor of the jurisdiction from its mere exercise. But it is also well settled that the jurisdiction attaches when a petition is filed by a proper party, setting forth any of the statutory grounds for a sale, and that, jurisdiction having once attached, any intervening errors or irregularities in the proceedings will not avail to avoid the sale, when collaterally impeached. It has accordingly been held that though the failure to issue citation to the resident heirs, or to make publication to the non-residents, will be sufficient to reverse the proceedings on appeal, such failure does not affect the validity of the order of sale on a collateral attack. Field v. Goldsby, 28 Ala. 218. But no intendment of notice need be indulged in the present case. The record recites that the plaintiff, being a non-resident, was notified of the application for the sale, and of the day set for hearing the same, by publication in a newspaper published in the county. This recital is conclusive when not negatived nor falsified by the record itself.

It is further objected that no day was appointed for the hearing of the application before the decree of sale was made. There appears of record a preliminary order, setting a day for the hearing of the petition, and for the issue of citations to the resident heirs, and that the plaintiff, being a non-resident, be notified by publication. It is objected, however, that this order, as appears from the record, was made December 4, 1878, nearly 12 months after the decree of sale. The petition was verified December 4, 1877. The order recites that "on this day comes Joseph Martin, administrator of Thomas Goodwin, deceased, and presents to the court his petition in writing, and under oath, praying for an order to sell the lands," and appoints and sets January 15, 1878, as the day for hearing the petition. Though an error, which may have occurred in a duly-certified transcript of judicial proceedings, cannot be corrected or amended by parol evidence, when an inspection of the entire record discovers the nature and extent of the error, it corrects itself, and the court will regard it as corrected when the validity of the proceedings is collaterally impeached. King v. Martin, 67 Ala. 177. As the preliminary order recites that the petition was presented on the same day on which the order was made, and sets January 15, 1878, for the hearing of the petition, which was several months prior to the date of the order, as shown by the record, and as the record discloses that the petition was verified on the same day of the same month of the preceding year, it is manifest that a mistake occurred in the date of the preliminary order. The record corrects itself; otherwise, it would present the absurdity of an order setting a day for the hearing of an application several months anterior to its rendition.

It is further objected that the record does not show affirmatively that evidence was taken as in chancery proceedings establishing the necessity for sale. The statute declares that no order for the sale of land belonging to any estate, for the payment of debts or for division, must be made, when there are minors interested in such estate, unless the probate court has taken evidence by deposition as in chancery proceedings, showing the necessity for such sale, and that any order of sale made without a compliance with these statutory requisitions shall be wholly void. Code 1886, § 2114. The decree of sale recites: "And it appearing to the satisfaction of the court, from the allegations contained in the said petitions, and from the depositions of Thomas O. Ferguson and William Weems, disinterested witnesses, taken upon interrogatories,