Traun v. Wittick. Traun, to recover eight slaves. The verdict of the jury, and the judgment thereon rendered at the Fall term, 1852, are set out in the third plea to the complaint in that case, which see. At the Spring term, 1853, the judgment was amended nunc pro tunc, as described in the replication to the third plea; and from the amended judgment the defendant now appeals, and assigns the same for error. WM. M. BYRD, for the appellant. CHILTON, C. J.-It is laid down as a general elementary rule, that a verdict is void if it find only a part of the issue. See 6 Comyn's Digest, tit. Pleader, (S.) 19, and cases there cited. It must also be certain-that is, must find the fact clear to a common intent.-Ib. § 21. Keeping in view these long-settled elementary principles, we have no difficulty in arriving at a correct conclusion upon the verdict in the case before us. We may concede, that had the jury found that the defendant unlawfully detained seven of the eight slaves sued for, naming them, and omitting Ann, it would have been equivalent to a verdict for the defendant as to her; but they have not done this. Their language is, "We find for the plaintiff, and assess the value of the slaves sued for," &c., proceeding to name seven of the slaves, valuing each separately, but omitting the slave Ann. As Ann was one of the slaves embraced in the issue, and the jury find for the plaintiff, and say they assess the value "of the slaves sued for", but omit her name in the assessment of the value, they leave it in great uncertainty whether they intended to find one way or the other as to her. The most reasonable construction of the verdict is, that they intended to find her with the others, but accidentally overlooked her when they came to assess the value. Be this as it may, it would be ruinous, in many cases, to allow the rights of parties to be concluded by such verdicts. The court must not be left to infer or guess at the meaning of the jury, and to arrive at a conclusion as to the extent of their finding by argument and doubtful inference; but the facts must be found with such reasonable certainty as will Williams v. McConico, guardian, &c. enable the court to pronounce a satisfactory judgment, definitively settling the rights of the parties. This cannot be done in the case before us, and we think no judgment could properly have been rendered upon the verdict; much less could it be amended, so as to render a judgment nunc pro tunc for Ann. The judgment must consequently be reversed, and the cause remanded. RICE, J., dissenting. 27 572 f120 86 f120 87 WILLIAMS vs. MCCONICO, GUARDIAN, &c. [APPLICATION BY WIDOW FOR LETTERS OF ADMINISTRATION ON ESTATE OF HER DECEASED HUSBAND.] 1. Sufficiency and approval of appeal bond.—When an appeal is taken from a de- APPEAL from the Court of Probate of Sumter. MRS. ELIZA A. WILLIAMS, the appellant, having made application for letters of administration on the estate of her deceased husband, James O. Williams, the guardian ad litem of the decedent's minor heirs appeared, and contested her right to administer on the ground of her unfitness. On the trial of this issue, the applicant proved the death of said James O. Williams, that she was his widow, and that she was Williams v. McConico, guardian, &c. over twenty-one years of age, and a resident of this State. The contestant then introduced evidence, showing that the applicant had separated from her said husband some time in the spring previous to his death, and went to reside in Choctaw county; that she accused him of inconstancy, and said that she would never live with him again; that she manifested great animosity towards him, and continued to live separate and apart from him up to the time of his death; that her said husband left his business in a very confused condition, and was involved in many lawsuits; that the applicant had funds in her hands, belonging to her minor children by a former husband, of whom she was sole guardian when she married Williams, which she would not deliver up on settlement, and which (as the witness thought) she would hold against any other person offering to administer. The applicant also introduced evidence, tending to show that she was of good business capacity and good moral character, and that any one who administered on her husband's estate would be compelled to obtain her assistance. The applicant demurred to the testimony introduced by the contestant, of which the substance only is stated above, but the court overruled the demurrer. She also offered to the court a good and sufficient bond for the faithful performance of the duties of the administration, but the court refused to receive it,and refused also to grant to her letters of administration on said estate; and to these rulings of the court she excepted, and now assigns them for error. The appeal bond in the record is dated September 28th, 1853, and is made payable to Christopher S. Mc Conico, the guardian ad litem of the minor heirs. The appeal was taken to the January term, 1851, of this court, and the bond is endorsed by the probate judge, "Approved February 18, 1854, as of the date of the execution of the bond"; but he certifies, in answer to a special certiorari, that the bond was in fact approved by him at the time of its execution, though he did not make the endorsement of its approval until Feb. 18, 1854. R. H. SMITH, for the appellant. A. A. COLEMAN and JOHN F. VARY, contra. Robertson v. Davenport & Patterson. GOLDTHWAITE, J.-In relation to the objections which have been urged against the appeal bond, it is only necessary to say, that under the law regulating this appeal (Code, § 1898), security for the costs only was required; and in such cases a simple acknowledgment in writing is all that is necessary, to the effect that the surety acknowledges himself security for the costs of the appeal.-Riddle v. Hanna, 25 Ala. 484. Here, the obligation is to pay the costs of the appeal, which is described with sufficient certainty, and it was approved by the proper officer, as his amended return shows, at the time the appeal was taken. This we regard as a substantial compliance with the law. In relation to the case upon the merits, the record sets out the whole evidence, and shows that the application of the appellant, as the widow of the intestate, for letters of administration, was resisted, on the ground that she was an unfit person to act as administratrix. It being established that she was the widow, she was the first person entitled to administer (Code, § 1668); and under the law, every one is a fit person, unless disqualified by some one of the causes specified in section 1658. Allowing every legitimate inference in favor of the contestants upon the evidence offered by them, it is clear that it did not establish any ground of unfitness covered by the section of the Code to which we have referred; and they should have been required by the court to have joined in the demurrer (Alexander v. Fitzpatrick, 4 Port. 405), and judgment on it should have been rendered in favor of the applicant. Decrec reversed, and cause remanded. ROBERTSON vs. DAVENPORT & PATTERSON. [ACTION UNDER CODE ON OPEN ACCOUNT FOR GOODS SOLD AND DELIVERED.] 1. Recoupment of damages on breach of contract.-Plaintiffs contracted to deliver to defendant, who was a grocer, a certain quantity of Cincinnati hams, at a Robertson v. Davenport & Patterson. stipulated price per pound; to be delivered during the season as defendant might want them, and to be paid for on delivery. After the delivery of a part of the specified quantity, the price of hams rose, and plaintiffs became unable to complete their contract; and defendant having refused to pay for those already delivered, they brought suit for the price: Held, that defendant, if he then knew that plaintiffs were unable to complete their contract, might refuse to pay; and might recoup his damages. APPEAL from the Circuit Court of Mobile. Tried before the Hon. C. W. RAPIER. THIS action was brought by Davenport & Patterson, as partners, against Thomas H. Robertson, on an open account for $159 33. The defendant pleaded only a special plea, alleging, in substance, that in 1853 he entered into a contract with plaintiffs, by which they promised and agreed to sell and deliver to him fifty casks of Stagg & Shay's hams, at the price of 10 cents per pound, and to furnish them to him as he might require during the then ensuing season; that, under and pursuant to said agreement, plaintiffs did furnish him with twenty casks of said hams, which he received and paid. for at the stipulated price, excepting a small balance, which is the sum sued for in this action; that they wholly failed and refused to furnish the remainder of the casks contracted for, although he was ready and willing (and so informed them) to receive and pay for the same according to the stipu lations of said contract; that by reason of this failure on their part, the price of said hams having risen in Mobile to 16 cents per pounds, defendant (who was a grocer in Mobile) sustained damage to the amount of about $500, which he insists he has a right to recoup in this action, and therefore claims judgment for the balance in his favor. A demurrer was interposed to this plea, but the court overruled it; and a trial was then had on issue joined. (On the trial, as appears from the bill of exceptions, "it was shown that the hams sold, the price of which was sued for, were part and parcel of fifty tierces of hams which the plaintiffs had agreed, in December, 1852, or January, 1853, to furnish to the defendant during the coming year (until new hams came into market), as he should want them, and as they could be obtained from Cincinnati within a reasonable time after notice; the defendant being a grocery merchant in the |