Cowan and Wife v. Jones. No attempt was made to amend the bill; but the complainants continue to urge the ground first assumed by them, that by reason of fraud the whole decree should be opened. The rule is settled, that where errors or mistakes only are shown to exist in the account, the account will not be opened, as will be done where fraud is shown, but the party alleging the error or mistake in the account will be permitted to surcharge and falsify it.-Danl. Ch. Pr. p. 764; Story's Eq. Jurisp. § 523; 1 John. Ch. R. 550; Vernon v. Vawdry, 2 Atk. R. 119. The distinction between opening an account, and surcharging and falsifying it, is important; because, when opened, the whole of it may be unraveled; but when permission is given merely to surcharge and falsify, the onus is upon the party who alleges mistakes to prove them. The account, prima facie, stands as correct; and if the party can show an omission for which he should have a credit, it is added (surcharged); or, if a wrong charge has been made. against him, it is deducted, which is called a falsification. As the bill before us does not contain any allegation of mistake or errors as the basis for an order to surcharge and falsify the admission in the answer that a mistake exists cannot entitle the complainants to a decree. The decree must be made upon the allegations of the bill-upon the case made by the bill, and the title to relief therein asserted must be substantially shown. The court pronounces its decision, it is said, secundum allegata et probata (Story's Eq. Pl. § 500), so that no relief can be granted for matters not charged, although they may appear in other parts of the pleadings and in evidence. See 1 Danl. Ch. Pr. pp. 377-378, note 2, and cases there cited; also, McKinley v. Irvine, 13 Ala. R. 593, 695 et seq.; Evans v. Battle, 19 ib. 398; Paulding v. Lee & Ivey, 20 ib. 753–758. It follows, that as there is no fraud as alleged, and the bill is not framed to surcharge or falsify the account as settled by the decree of the Orphans' Court of Greene county, the complainants are barred by the decree, which is valid and conclusive until it is impeached in some of the modes pointed out by law; and they cannot, therefore, have a decree for the two hundred dollar item set forth in the answer. The decree is final until opened, or leave obtained in some way to 27 326 131 413 Leaird v. Moore. overhaul items which are, or should have been, embraced in it. Cole v. Connelly, 16 Ala. R. 271; Cox v. Davis, 17 ib. 714-717; Sankey's Distributees v. Sankey's Ex'rs, 18 ib. 713. As to the pittance due upon the final settlement, it is too insignificant to justify a resort to equity, or to uphold its jurisdiction; and it is not attempted by the appellants' counsel to sustain it solely for that sum. It would, perhaps, have been well for the chancellor to have dismissed the bill without prejudice to filing another to recover for the share due the complainants of the $200; but we think their right is not foreclosed by the present bill, which makes a different case from a bill which would seek the attainment of that object. If, however, their right to a new bill would be prejudiced, we should not reverse for this reason, since they had ample opportunity to amend their original bill, making it one with a double aspect, so as to embrace the correction of this mistake, and they failed to do so. Their laches would be a good ground for refusing such modification.-Rumbly v. Stainton and Wife, 24 Ala. R. 712. Let the decree be affirmed. LEAIRD vs. MOORE. [ACTION ON PROMISSORY NOTE-CONSTRUCTION OF STATUTE OF AMENDMENTS, CODE, § 2403.] 1. Sole plaintiff's name cannot be stricken out and that of another substituted.—Under the statute authorizing amendments of the complaint (Code, § 2403) “ by striking out or adding new parties plaintiff, or by striking out or adding new parties defendant," the court cannot allow the name of a sole plaintiff to be stricken out and that of another person to be substituted. APPEAL from the Circuit Court of Barbour. The record does not show the name of the presiding judge. THIS was an action under the Code on a promissory note for $210, executed by the defendant, Lewis J. Leaird, and Leaird v. Moore. payable to William Smitha, or bearer. The original complaint was in the name of J. C. Wellborn as plaintiff, and it was averred that the note was his property; but at the Spring term, 1854, after the cause had been pending one year, his death was suggested, and Mary A. Wellborn, as his executrix, was made a party plaintiff; and at the same term another order was made in the cause, as follows: "Upon motion of Kelly Moore, the complaint is amended in this case, by adding the said Kelly Moore as a new party plaintiff, and also amended by striking out the plaintiff, Mary A. Wellborn, executrix; and the defendant, by his attorney, excepts to the ruling of the court.' "The action of the court in permitting a change of parties plaintiff," is now assigned for error. E. C. BULLOCK, for the appellant, contended that the statute authorizing amendments of the complaint (Code, § 2403), being in derogation of the common law and the long established principles of pleading, must be strictly construed; that its object, as evident from the language used, was to provide a remedy for the nonjoinder and misjoinder of parties, and it ought not to be extended by construction to the substitution of one party for another; that if the amendment in this case was made by first adding the name of Moore, it was erroneous as a misjoinder of parties, and if it was made by first striking out the name of Mrs. Wellborn, there was nothing left to which the name of Moore could be added, and no case in court. LEWIS L. CATO, contra, insisted that the statute must receive such a construction as would effectuate its object, which was (as he contended) to prevent cases from being thrown out of court for want of proper parties, or because improper parties had been made; that the court had the power to allow separate amendments, by first adding Moore's name, and then striking out Mrs. Wellborn's, and there could be no objection to allowing the two amendments at one and the same time, and under the same motion; and that the word "add", as used in the statute, did not refer to the party named in the complaint, but to the complaint itself. Rowan v. Hutchisson. GOLDTHWAITE, J.-By the Code (section 2403) the courts are required to permit the complaint to be amended, "by striking out or adding new parties plaintiff, or by striking out or adding new parties defendant, upon such terms and conditions as the justice of the case may require." The only question is, whether, under this section, the sole plaintiff can be struck from the record, and another person substituted in his place. Judging from its language, we think the object of the statute was, to cure defects arising from a nonjoinder or misjoinder, without turning the case out of court. The words do not naturally go further than this; and they should do so, before we would be authorized to allow a change so radical to be made by amendment. The statute is in derogation of the common law; and if the sole plaintiff is struck out, there are no parties, and, consequently, no case. If we were fully satisfied that it was the intention of the statute to go so far, the words might, perhaps, authorize us to give effect to that intention; but we could not do so without going beyond their plain and literal meaning; and we think it is better to adhere to the plain meaning of the words, unless such a construction leads clearly to a wrong result. It is impossible for us to say that the legislature, when it used the words "adding new parties," meant substituting a different party altogether; and if the latter was intended, it is better that the alteration should be made by the legislature, than that the judges, by construction, should run the risk of extending the statute to cases which it is at least very doubtful whether it was intended to reach. Judgment reversed, and cause remanded. ROWAN vs. HUTCHISSON. [DETINUE AGAINST SHERIFF FOR SLAVES TAKEN UNDER ATTACHMENT.] 1. Declarations of ownership, unaccompanied by possession, not admissible evidence.-Declarations of ownership of a slave, made by a party who is not shown to Rowan v. Hutchisson. have had possession at the time, are not admissible evidence for him in a suit involving the title. 2. Declarations of slaves inadmissible on question of ownership.-The declarations of an old female slave, who lived at the same house with her grandchildren, respecting her possession of them, are not admissible evidence on the question of ownership, since (other reasons aside) she cannot have such possession as will authorize their admission. 3. Admissibility of other evidence to prove ownership.—In detinue against a sheriff for slaves taken under attachment, the question was whether the slaves belonged to plaintiff, or to his brother, the defendant in attachment, who had gone to California before the levy of the attachment, leaving the slaves in the house in which he last resided: Held, that defendant, to repel the idea of abandonment on the part of said defendant in attachment, and to show title in him, might prove that, while in possession of said slaves, he had mortgaged them; that when the steamboat on which he left was about quitting the wharf, he declared his intention soon to return; and that plaintiff, after his brother's departure, had returned an assessment under oath of his own property, in which said slaves were not included. 4. Deed received in evidence as an admission in writing. 5. Charge respecting the effect of three years possession of personal property, under statute of frauds, held correct. 6. When damages assessed to defendant.-If the plaintiff in detinue, by giving the statutory bonds, causes the possession of the slaves sued for to be taken from the defendant and turned over to himself, the jury trying the case are authorized by the act of 1848, "to amend the law in relation to the action of detinue," (Pamphlet Acts 1847-8, p. 82,) to assess the damages and the value of the slaves. 7. Judgment on verdict for defendant.-Issues being joined on the pleas of non detinet and justification under legal process, a verdict finding the defendant not guilty, and assessing the damages and the separate value of the slaves, is sufficient under this statute to support a judgment in his favor. APPEAL from the City Court of Mobile. Tried before the Hon. ALEX. MCKINSTRY. DETINUE by B. C. Rowan against James F. Hutchisson, for two slaves-Tom, about seven years old, and Mary (alias Louisa), about nine years old; pleas, non detinet, and justification under certain attachments sued out by third persons. against Michael M. Rowan, a brother of plaintiff, and levied by the defendant, as sheriff of Mobile county, on said slaves as the property of said Michael. The record shows that the plaintiff executed the statutory bond, and that the slaves were thereupon delivered into his possession. On the trial of the cause, as appears from the bill of exceptions, the plaintiff offered the deposition of his sister, Maria |