Scott v. Baber. title to the slaves in the vendee, while the vendor should in fact remain the owner. We are not, however, under the facts presented, authorized to place this construction upon the agreement, but in the absence of proof explanatory of the nature of the transaction, and showing the intention of the parties, we must, from the agreement itself, deduce its legal interpretation. The first general principle in the construction of all contracts, whether verbal or parol, or under seal, is so to expound them as to carry into effect the intention of the parties, and this intention is to be collected from the whole agreement. Watts, Ex'r, v. Sheppard, 2 Ala. R. 425; Ely, use, &c. v. Witherspoon, 2 Ib. 131; Read v. Edwards, 7 Por. R. 508; 2 Bov. Bac. Ab. 576. If the terms of the contract be doubtful, it must be construed most strongly against the party who stipulates, lest by the obscure wording of his agreement, he should find means to evade it. Evans v. Saunders, 8 Por. Rr. 497. Again: The court will take care so to expound the instrument as, if practicable, to give efficiency to every part of it. Platt on Con. 145. Applying these general principles to the case at bar, let us ascertain the legal effect of the agreement executed and delivered by Scott, the purchaser of the slaves to the defendant-" that he (Scott) was not to interfere with or disturb the possession of said negroes, mentioned in said bill of sale, and that if he did, then he was to pay the defendant the sum of $2,000." If the reservation of the possession of the slaves to Baber, the grantor, is to be considered without limitation, then it would be utterly inconsistent with the estate created by the conveyance of the slaves to Scott, and, considered as a part of the agreement by which the estate is created, and being a condition, in this view of the case, repugnant to the estate, it would be void. It is held that a condition upon a feoffment in fee not to alien, is void because it is repugnant to the estate. Co. Litt. 223; 2 Bac. Ab. (Bouv. ed.) 301. So, if a man makes a feoffment in fee, provided that the feoffor shall have the profits, the condition is void. Co. Litt. 206. But, as the parties intended the contract to be operative, and we must sustain it if not inconsistent with the law, the above construction, which renders it nugatory and invalid, is consequently not the cor Scott v. Baber. rect interpretation. Neither is it true, as contended for by the counsel for the plaintiff, that the possession was barely permissive, and without consideration. This view is opposed to the concession of the counsel, that the two agreements, contemporaneously executed by the parties, in reference to the same subject matter, form but one contract. 9 Ala. R. 24. The effect of the contract is a sale of the slaves, reserving to the vendor the possession. The agreement of Scott that he will not disturb, or interfere with the possession, does not amount to a sale, but is an acknowledgement that he merely purchased the title without the right to the immediate possession. The only construction which we can give this contract, and which will accord with the general rules above laid down, is, to consider it a purchase by the plaintiff of the slaves in controversy, reserving to the defendant the possession of them during his life, and at his death, (if the contract be otherwise bona fide,) the plaintiff will be entitled to possess them. This construction gives effect to the agreement, and upholds the respective stipulations of the parties. The defendant, by the execution and delivery of his deed, conveyed to the plaintiff his right to the property; the plaintiff agrees he will not in any way interfere with or disturb the defendant's possession. The defendant, having parted with the title, none can be transmitted to his representatives after his death, and retaining only the right of possession, this ceases with his capacity to hold. The contract, then, vests the property in the plaintiff, postponing his right to possession until after the death of the vendor. That such contracts will be sustained, see Banks, adm'r, v. Marksberry, 3 Litt. R. 275; McCutchen, adm'r, v. McCutchen, 9 Por. R. 650; Sewall v. Glidden, 1 Ala. Rep. (N. S.) 52; Myers v. Peek's adm'r, 2 Ib. 648; Oden v. Stubblefield, Ib. 684; McRae, adm'r, v. Pegues, 4 Ib. 158; Wilkes v. Greer, at the present term. It is manifest from what we have said, that the charge asked of the court by the counsel for the plaintiff, was properly refused, and that the charges given were equally as favorable to the plaintiff as the law will authorize. The remaining point relates to the testimony which was Scott v. Baber. objected to, but allowed by the court. It is insisted that as the commission to take the testimony was made returnable to a day when no court was holden, it must be considered as a nullity, and that the deposition taken by virtue thereof should have been suppressed. We have no statute which authorizes this conclusion, and it would be most inconvenient in practice, to permit the misdirection of the clerk to the commissioners as to when they should have the deposition before the court, (and which could not injure any one except the party who seeks to use the testimony,) to defeat the ends of justice by excluding the proof. We think the insertion of the time when the court is to be holden in the commission, may be regarded as surplusage, and that it would be quite sufficient, had the clerk required the commissioner to return the commission to his office with all convenient speed. The cases of Kirk v. Suttle, 6 Ala. R. 679, and Brown v. Lipscomb, 3 Stew. R. 331, relied upon by the plaintiff's counsel, bear no analogy to the case at bar. In the first case, the commission was issued to one person, and executed by another-the other, was a case in which the original writ of capias ad respondendum was made returnable to a time when no court was holden. The distinction between such writ, and a commisssion, is too obvious to require illustration. The court also very properly refused to suppress, because the commissioner was related to the parties. If the plaintiff could have availed himself of such objection in the manner he proposed in the court below, it is perfectly clear, that the commissioner being equally related to both plaintiff and defendant, any bias which might be presumed to result from relationship, must be regarded as balanced, and he stands equally indifferent, as though he were related to neither. Motions to suppress depositions, which have been taken according to the requisitions of the statute, are considered as within the sound discretion of the court, and when sprung for the first time, at the trial, should never be allowed, as their effect is to take the opposite party by surprise. Cullum v. Smith & Conklin, 6 Ala. Rep. 625; 7 Ib. 851; 9 Ala. Rep. 744. The question objected to as leading, and which was in Kirksey v. Prior. part allowed by the court, we do not think objectionable. It certainly does not suggest to the witness the answer which he is to make. See 1 Greenl. Ev. 481; 1 Stark. Ev. 149. From what we have said, it follows there is no error in the record, and the judgment of the circuit court is affirmed. KIRKSEY v. PRYOR. 1. In actions against a sheriff for failing to serve process of garnishment on a supposed debtor of the defendant in attachment, the judgment recovered by the plaintiff in the attachment suit, is evidence prima facie of the injury sustained, without producing the note on which the judgment was founded. Writ of Error to the Circuit Court of Greene. Hon. J. D. Phelan. Before the THIS was an action on the case, at the suit of the defendant in error, to recover damages of the plaintiff, for the failure, as sheriff, to serve a garnishment placed in his hands, on Robert Leachman, a supposed debtor of G. B. Ross, against whose estate the plaintiff below had sued out an attachment. The declaration alledges, that the cause of action against Ross was a promissory note, states the proceedings thereon, and avers the recovery of a judgment against him by the plaintiff. On the trial before a jury, the plaintiff did not produce the promissory note described in the declaration, but he laid before them the judgment recovered by him in the action against Ross. Thereupon the defendant prayed the court to charge the jury, that they must find a verdict in his favor, as the plaintiff had failed to adduce the note described in his declaration. But this charge was refused, and the jury were instructed that the attachment and judgment offered in evi Kirksey v. Prior. dence, were sufficient proof of the debt to sustain the present action, if it were otherwise maintainable. To the ruling of the court the defendant excepted; and a verdict and judgment being returned for the plaintiff, a writ of error has been sued to this court. J. B. CLARK, for the plaintiff in error, cited 2 Stark. on Ev. 740, (ed. of 1834;) 2 Chit. Pl. 737, (note f.;) 2 Esp. R. 477; 5 Id. 160. W. COLEMAN, for the defendant in error, cited 2 Ala. Rep. 393; 17 Wend. R. 543; 1 Saund. R. 481. COLLIER, C. J.-In an action against an officer for neglect of duty, on mesne process, the rule as to damages is, the amount of injury sustained, and not the amount of the debt. 9 Conn. Rep. 379; 5 Mart. Rep. N. S. 125; 5 Watts & Serg. Rep. 455. But in an action for any default or neglect of duty by the officer, which seems to have occasioned the loss of a debt, the judgment in the suit against the debtor is prima facie evidence of the measure of the injury which the plaintiff has sustained. Such evidence may, however, be controlled, and the officer in mitigation of damages may prove any facts which show that the creditor has suffered nothing by his default or neglect-as the inability of the debtor to pay, or fraud or collusion in obtaining the judgment. 2 Mass. Rep. 526; 10 Id. 470; 2 Greenl. Rep. 46; 1 Conn. R. 347; 5 N. Hamp. Rep. 438; 5 Har. & J. Rep. 485. Perhaps these principles are not controverted in the present case, but it is insisted that as the declaration alledges the indebtedness of the defendant in the attachment to have been evidenced by a promissory note, it was necessary for the plaintiff to have produced it on the trial of this cause. If the declaration had not gone farther, and stated, that in the suit on the note a judgment was recovered, we would be inclined to think that the argument was well founded, but the allegation as to the judgment being direct and special, it was quite enough to entitle the plaintiff to recover, to produce the |