Jones v. The State. 2 Russ. subject of felonious conversion by the possessor. 108. But whenever a special property in the goods vests in the holder, by reason of a contract creating a bailment, there is no doubt but that it is sufficient to describe the chattel as belonging to the bailee. The indictment may charge the property to belong either to the general or special owner. Examples are given in the books of this character, such as a lessee for years, a bailee, a pawnee, a carrier, and the like. 2 Russ. 157. It is clear to my mind, that Speight having received the pistol to keep, until demanded by the State, and having given his bond for its return, has a special property in it, and the fact that it was left with his overseer, on his farm, cannot alter the case. The overseer's possession was the possession of his employer, who was bound for the return of the chattel. The employer is then as much in possession of this article of property as of any other in the charge of his overseer. See cases referred to in the defend ant's brief. 2. That the jury did not find the value of the property stolen, is not erroneous; but if it was, it is an error of which the prisoner cannot complain. It has no effect upon his guilt or innocence, but is only important as it relates to the restitution of the property stolen. That he is not required to restore the property, or that the jury have not, by their verdict furnished the party aggrieved by reason of the larceny, with the means of obtaining judgment, under our statute, for the value of the pistol against the prisoner, is certainly no injury to him, and not having been injured, he cannot complain. 3. The remaining inquiry relates to the legality of the charge as qualified by the presiding judge. We are informed by the bill of exceptions, that there were strong circumstances tending to show the prisoner's insanity, from a period anterior to the commission of the alledged offence, down to, and at the trial. A physician, who heard the testimony, gave it as his medical opinion, that he was afflicted with progressive insanity from a period some time before the time of the alledged offence, and was greatly insane at the time of the trial. Now we agree with the court, that if the prisoner was sane at the time of the commission of the offence, the jury should not Jones v. The State. have returned a verdict in his favor. It is beyond question, that insanity intervening between the time of the alledged offence and the trial, cannot have the effect to exculpate the prisoner. There is then no error in the charge of the court, but the only matter of any difficulty is this. The evidence strongly indicated, perhaps was conclusive, of the prisoner's insanity at the time of the trial. Under such circumstances, it was not proper that he should have been put upon his trial. By the humanity of the common law, a party who was insane at the time of the trial, could not be arraigned. If he became insane after his conviction, he could not be executed while he remained thus demented. See 1 Hawk. P. C. 3, § 3; 1 Hale, 34-5; 1 Russ. 13; 4 Bl. Com. 25. In the Commonwealth v. Seth Braley, 1 Mass. Rep. 102, the prisoner was brought into court, and the indictment for killing his wife being read to him, he was asked the usual question whether he was guilty or not guilty, the prisoner said he did not know what to answer, it seemed to him he had seen her since. The court suspended the arraignment, giving the prisoner time to consider, and after another attempt to have him plead, which was ineffectual, being satisfied from his appearance and conduct he was insane, a jury was immediately impannelled and sworn "well and truly to try between the commonwealth and the prisoner at the bar, whether he neglected and refused to plead to the indictment against him for murder, of his free will and malice, or whether he did so by the act of God." The jury found he did so "by the act of God." Whereupon he was remanded to jail. But in the case before us, the judge did not see proper to test the prisoner's sanity, by any preliminary inquiry to ascertain whether he was capable of pleading to the indictment-he did plead, and a'trial and conviction was the result. Although we are of opinion that the facts disclosed in the bill of exceptions, might well have warranted the preliminary inquiry as to the prisoner's mental condition, yet this must be left to the sound discretion of the court. If, amid the mystery and veil which shrouds the phenomena of mental aberration, so difficult to penetrate, the judge should be mistaken, and try an insane man, (as we incline to think has been done in the case before us,) it will present a case in Reynolds v. McClure & Wilson. which there may be a strong appeal to executive clemency. We cannot, from the record, see that error, such as we can judicially notice, has been committed. The judgment of the circuit court is therefore affirmed. REYNOLDS v. McCLURE & WILSON. 1. A plea in abatement of a pending suit, commenced by attachment, is bad, unless it alledges that the attachment was levied. The allegation that the attachment is still pending, is not sufficient. Writ of Error to the Circuit Court of Cherokee. THIS was an action of debt at the suit of the defendants in error, on a bill single. The defendant pleaded two several pleas in abatement-1. That previous to the institution of this action, the plaintiffs caused an attachment to be issued against his estate for the same cause of action, returnable to the county court of Cherokee, which was still pending and undetermined. 2. The second plea is similar to the first, save only that it alledges the attachment was returnable to the circuit court. The plaintiffs demurred severally to these pleas, and their demurrer being sustained, the defendant declined to plead further, and judgment was rendered by nil dicit. WOODWARD, for the plaintiff in error. The pleas not only contain matter of abatement, but were properly pleaded. 1 Bac. Ab. tit. Abate. 28; 7 Ala. Rep. 601; 10 Id. 958; 3 Chit. Plead. 903. COLLIER, C. J.-There can be no question but the de Reynolds v. McClure & Wilson. fendant's pleas are unexceptionable in point of form, if they are good in substance-in fact, are framed in accordance with the most approved precedents. The question then is, do they disclose such matter of defence as would authorize the abatement of the plaintiffs' suit. In Dean v. Massey, 7 Ala. Rep. 601, it was held that an attachment sued out, returnable into a court of record having jurisdiction of the case, when levied and returned, is the commencement of a suit, and may be pleaded in abatement to a suit subsequently instituted for the same cause. And in Brown v. Isbell, 11 Ala. Rep. 1019, we said, "an attachment is extraordinary process, and when levied and returned, becomes a suit in court." In the case at bar, the pleas alledge the suing of the attachment, when, by whom, and to what court returnable, but do not state that it was ever levied or returned, otherwise than it may be inferred from the allegation that it is still pending. Great strictness is necessary in pleas in abatement, and even defects in matters of form are available on general demurrer; they cannot be sustained by inference or intendment, but their allegations must be full, direct and complete. Where an action is brought in the ordinary mode, by writ requiring personal service on the defendant, if the process is returned "not found," the plaintiff may sue out an alias writ in order to bring the defendant in; but where an original attachment is the leading process in an action, if no levy is made, it becomes functus officio, and its vitality is as effectually lost, as if a formal entry of discontinuance were made. It has been said the lis pendens in chancery which affects a purchaser with notice, so as to prevent him from acquiring a title to the prejudice of the litigants, begins from the service of the subpoena after the bill is filed. 1 Johns. Ch. R. 566; 8 Ala. R. 570. Whether the service of the writ in a case at law is necessary to the creation of a pending suit, we will not inquire; for however this may be, an attachment which is returned, without having been levied, has spent its force, and cannot be made the basis of any farther proceeding. The Powell v. Wragg & Stewart. pleas then are defective in not alledging the levy and return of the attachment, so as to show the legal pendency of the suit, although the term to which it was returnable had passed by before the present action was commenced. Consequently, the demurrers were rightly sustained, and the judgment must be affirmed. POWELL v. WRAGG & STEWART. 1. The possession of personal property, obtained by a fraudulent contract, with one indebted at the time, will not ripen into a title by force of the statute of limitations, against the creditors of the vendor. Writ of Error to the Circuit Court of Tallapoosa. Before the Hon. S. Chapman. TRIAL of the right of property. The defendants in error levied an execution on slaves, as the property of David Powell, which were claimed by the plaintiff in error, and bond given to try the right. In the progress of the trial, a bill of exceptions was taken to the ruling of the presiding judge, which presents the following facts: The plaintiff in execution read to the jury, the execution levied on the slaves, against David Powell, issued from the circuit court of Macon county. The judgment on which it was issued, was rendered in Macon circuit court in April, 1839, on which execution had issued to Macon county, and was returned no property. The sheriff was examined by the plaintiffs, who testified that he levied on the slaves at the house where the defendant in execution and his family resided. It was proved that David Powell was the father of the claimant, and that the slaves |