Carlton v. Fellows, Read & Co. judgment, intend the court acted upon sufficient evidence. This argument would be plausible, had not the judgment entry informed us the reason why the petition was dismissed. It is there stated, "that this (the orphans') court has no jurisdiction of said estate of said Job Mason, deceased, having parted with its jurisdiction by its previous transfer thereof to the circuit court of Shelby county, Alabama." This is conclusive to show, that the court, whatever other reasons it may have had for dismissing the petition, was very erroneously influenced to do so by the order referred to. We think the case of King v. Shackleford, in 6 Ala. Rep. 423, indicates the remedy to be in the orphans' court, and as that court has not parted with its jurisdiction by the order referred to, as erroneously supposed by the judge, its judgment is reversed, and the cause remanded, that the appropriate steps may be taken for the settlement of the estate. CARLTON, v. FELLOWS, READ & CO. 1. Evidence of a parol agreement, cotemporaneous with an indorsement of a bond, that the indorsees should take other steps to collect the bond from the obligors, than the indorsement contemplated, and that they had performed the agreement, and that subsequently the indorser had recognized the agreement, and advised the continuance of the steps they had taken to collect the bond, is inadmissible, as it contradicts the legal effect of the indorsement. Writ of Error to the Circuit Court of Sumter. Before the Hon. S. Chapman. THIS was an action of assumpsit at the suit of the defendants in error against the plaintiff, as the surviving partner of W. Carlton & Co. The declaration alledges that Samuel B. Lacey and Austin Lacey, made a bill single, particularly des Carlton v. Fellows, Read & Co. cribed, payable to Henry McCall, which the payee indorsed to Messrs. Carlton & Co., and the latter to the plaintiffs. On the trial before the jury, the plaintiff's proposed to prove that simultaneously with the indorsement to them, it was agreed between the defendant and themselves, that they should take other steps to collect the bill single of the obligors, than the mere indorsement of the paper contemplated, and that they had performed the agreement on their part. Further, while they were thus endeavoring to enforce a collection against the makers, though perhaps after the defendant would have been discharged according to the law operating upon the indorsement, the defendant recognized his agreement, and told the plaintiff's attorney to continue to pursue the steps he had adopted, and try to make the money of Austin Lacey, (who was the only solvent maker,) in that way. To the admission of the evidence, either of the agreement or its recognition, the defendant objected, but his objection was overruled, and the testimony permitted to go to the jury. Thereupon the defendant excepted; and a verdict and judgment were rendered for the plaintiffs. REAVIS, for the plaintiff in error, cited 3 Stew. Rep. 371; 8 Ala. Rep. 247. M. I. HOIT, for the defendant in error, cited Clay's Dig. 333, 12, 14; 381, § 6; 2 Wash. 219; 1 Por. Rep. 359; 2 Id. 456; 6 Id. 428; 7 Id. 175; Minor's Rep. 173; 1 Ala. Rep. 159. COLLIER, C. J.-In Sommerville v. Stephenson, 3 Stew. Rep. 271, it was held, that the contract evidenced by the general indorsement of a specialty, has a specific legal import, and cannot be varied by parol evidence; that its effect in law is precisely the same, as if it had been expressed in totidem verbis, in the written transfer of the paper. To the same effect are Minor's Rep. 357; 2 Porter's Rep. 308; 8 Ala. R. 247; 3 Camp. Rep. 57; 8 Taunt. Rep. 92. These citations are quite sufficient to show that the indorsement could not have been varied in its effect by the verbal agreement simultaneously made; and we think the subsequent recognition of Carlton v. Fellows, Read & Co. this agreement, cannot impart to it a validity which it did not originally possess. It was certainly competent for the indorsers to have agreed with the plaintiffs by word merely, after the latter became the proprietors of the paper, that they should not be required to sue the makers at all, or with the promptness required by the statute. But we do not understand the recognition to be a new contract. It was nothing more than an acknowledgement of the previous agreement, an encouragement to the plaintiffs to proceed under it, and an expression of confidence that a collection might thus be made of one of the makers of the bill single. In all this, there is no ground to infer that the defendant was influenced by other than honest motives, or intended to lull the plaintiffs into a false security. Besides, it is fairly inferable from the facts recited in the bill of exceptions, that the plaintiffs had lost their recourse upon the defendant before the latter even recognized the agreement; for it is explicitly stated, that a writ issued against the solvent maker, (who lived in Mississippi,) had been returned to the county court of Sumter, "not found." The duty devolved upon the plaintiffs as indorsees merely, required that they should have taken prompt measures against the makers, in the state in which they resided, when the indorsement was made. This it is not pretended was done, and it is more than questionable whether so much time had not elapsed when the writ was returned, as to put it out of the plaintiffs' power to institute proceedings in Mississippi, so as to charge the defendant. The acknowledgement of the invalid agreement cannot be regarded as a promise to pay, and supersede the necessity of showing that the plaintiffs had taken the legal steps to fix the liability of the defendant. We have said that there is nothing in the conduct of the defendant of which a legal fraud may be predicated; and if there was, it might be asked if the plaintiffs could avail themselves of it in this form of action. The ruling of the circuit court is incompatible with the view we have taken of the law-its judgment is therefore. reversed and the cause remanded. Donnell v. Thompson. DONNELL v. THOMPSON. 1. A general objection to the reading of a deposition, as evidence, will not authorize the raising particular objections to it, in the appellate court. The objection must be specifically raised in the primary court. 2. It is competent for one, who hands a note to another for collection, to prove his own declarations made at the time, showing his ownership of the note. 3. Possession of a note, is prima facie evidence of ownership, in an action of trover by him, against one who shows no title to it. 4. The collection of a note, by one not entitled to it, is evidence of a conversion, and renders a demand unnecessary. 5. A purchaser of a note, payable to C, or bearer, from one who was not the payee of the note, and had not the right to dispose of it, cannot defend against the true owner of the note, by proving he gave value for it. 6. Where the rejection of a deposition, cannot, according to the rules of law, work any injury to the party offering it, its improper rejection, will not be an error for which the judgment will be reversed. Writ of Error to the Circuit Court of Montgomery. Before the Hon. G. D. Shortridge. THIS was an action of trover, brought by the defendant in error, against the plaintiff, to recover damages, for the conversion of a promissory note, executed by A. Martin, to Mrs. Amanda Converse, or bearer, for $125. The declaration described the note as dated the 24th December, 1843, and due January, 1845. It does not appear that the note was indorsed by the payee. To prove property in the plaintiff, the deposition of Jesse Thompson was read, who stated that he received the note from Drury Thompson, who requested him to send it to Montgomery for collection. That the note was handed to the witness, by the plaintiff, as his own property. The witness described the note, as dated the 26th December, 1843, and due January, 1845. The defendant moved the court to exclude this evidence, on the ground, that it was not evidence of ownership; and on the further ground, that the declarations of the plaintiff, cannot be given in evidence in his own favor. Donnell v. Thompson. There was also evidence, that the defendant had collected the money by suit, in the name of the payee for his use. suit was brought. That the money was collected since this There was also proof of a demand made by the attorney of the plaintiff, before this suit was brought, but the demand improperly described the note. The defendant offered to read as evidence, the deposition of one Shaw, who stated, that he received the note from Jesse Thompson, who was his partner, with instructions to collect it, and apply it to the uses of the firm. That not being able to collect, he received further instructions from Jesse Thompson, to raise money on it, and to appropriate the money to the purposes of the firm. That he then sold said note to the defendant Donnell. To the introduction of this evidence, the plaintiff objected, because the witness was interested. This objection was sustained. The defendant then offered to show, that the witness had been released by him, before he was examined, but the release described the note as payable to Mrs. Battell. It was admitted that Mrs. Converse had once borne the name of Mrs. Battell, but had intermarried with Wm. P. Converse, and that it was a mistake in the release, in describing the note as payable to Mrs. Battell; and then offered to read the deposition, which was objected to; the objection was sustained, and the plaintiff excepted. The plaintiff in error then requested the court to charge the jury 1. That the note sued for, being payable to bearer, if it came fairly into the hands of the defendant, for a valuable consideration, that the plaintiff could not recover. 2. That the possession of the note payable to bearer, being prima facie evidence of ownership, before the plaintiff can recover, he must show that the defendant had notice of his claim, before his purchase, or fraud on the part of the defendant in obtaining it. 3. That if Shaw had the authority to collect the note, from the maker, that he necessarily had the authority to transfer it to any one for value. 4. That if the plaintiff parted with the possession of the |