Barrell v. Hanrick, adm'r, et al. upon the ground that the statute being intended to prevent fraud, its original design would be thwarted, if it could be used as a cover under which fraud could be successfully perpetrated. Such has long been the established doctrine of this court.-See Kennedy v. Kennedy, 2 Ala. 571, in which the principal authorities are collated, and the question is elaborately discussed, in a thorough and very able opinion by Collier, C. J. See also, Tiffany & Bullard on Trustees, t. pp. 189, 195; 1 Story's Equity Jurisprudence, sec. 184 and notes, on pages 186, 187. But conceding the proposition as above announced to be correct, still it is contended that to constitute fraud, and suspend the operation of the statute, there must be deceit, or misrepresentation, or evidence that the subsequent failure to fulfil the engagement, was the result of an original fraudulent design. It is admitted that there are high authorities which hold such to be the correct doctrine, on the ground that "those who choose to rely upon an oral assurance, in cases where the legislature has required a writing, must trust to the honor of those with whom they deal, and cannot look to the law for indemnity for the breach of an agreement which it has solemnly deprived of all legal value." (2 L. C. in Eq. 708.) But the contrary doctrine is also well sustained by authority, and we are precluded from considering the question an open one, by the previous decisions of this court. In this State, while it is well settled that the fraud which avoids a specialty at law, must relate to the execution of the instrument, it is equally as well settled that the jurisdiction of chancery is much more extensive; and that "fraud, as denounced in equity, includes all acts, omissions, or concealments which involve a breach of a legal or equitable duty, trust, or confidence, justly reposed, which are injurious to another, or by which an undue, or unconscientious advantage is taken of another." (Kennedy v. Kennedy, supra.; Hence, Dargan, J., Bishop's Heirs v. Bishop's Adm'r, 13 Ala. 483, says: “The ground upon which courts of equity undertake to establish trusts of this character, is that of preventing the fraudulent use of a deed; for although there is no fraud in the execution of the deed, if it be afterwards converted to a in Barrell v. Hanrick, adm'r, et al. fraudulent purpose, or to one wholly different from the one intended by both parties at the time of its execution, equity ought to interpose, and prevent such an improper use of it, and establish the trusts for which it was executed. See 6 Paige's R. 147; 1 Dallas Rep. 424." - There is no reason to believe that Hanrick practiced any fraud or deceit in procuring the bequest to him in the will of Charles Barrell; on the contrary, there is every reason to believe, that at the time of the execution of the will, Hanrick intended, honestly and fairly, to execute the trust in question; and, doubtless, his death alone prevented it. But having died without complying with his agreement, equity and good conscience forbid that the property should go to Hanrick's heirs; and the failure of Hanrick to execute the trust, from whatever cause, is a constructive fraud, against which relief should be decreed.-Lessee of Thompson, et ux, v. White, 1 Dallas, 424; see also, Kennedy v. Kennedy, supra; Tiffany & Bullard on Trustees, t. pp. 189, 195; 1 Story's Eq. Jur., sec. 184, and notes on pp. 186, 187. It is contended, however, that the bill cannot be entertained, as it sets out on its face that the agreement from which springs the trust, was made with a view to evade the confiscation acts of the government of the Confederate States; and that therefore the appellant does not come into equity with clean hands. This precise question was made in Blassom v. Van Amringe, and decided by the supreme court of North Carolina, at the January term, 1867.-(1 Phil. Cases in Equity, 133.) The court held that the objection would have been fatal, if taken before a court of the de facto State government, which formed a part of the Confederate States; but that the supreme court of North Carolina was a co-ordinate branch of a rightful State government forming a part of the United States, and could not entertain such an objection. We concur in this conclusion, which is decisive of the same point in the present case, and is not in conflict with the previous decisions of this court, relative to the enforcement of executory contracts based on the treas Alabama & Florida Railroad v. Watson. ury notes of the late Confederate States, after they had become the currency of the country. We deem it unnecessary to elaborate this proposition, as the reasons for the distinction indicated will readily present themselves. The cross assignments of error, makes, under a rule of this court, two causes between the same parties. In the case of George Barrell, appellant, the decree of the chancellor dismissing the bill, so far as it seeks to establish the trust as to the realty, must be reversed. In the case of Edward Hanrick, administrator, et al., appellants, so much of the decree as declares and establishes the trust as to the personalty, must be affirmed; and George Barrell must recover his costs in this count, as appellant in the one case, and as appellee in the other. The court below will render a decree declaring and establishing the trust, as to both the realty and personalty remaining after the payment of the debts of the estate, and the specific legacies; and the principal cause must be remanded for further proceedings in conformity with this opinion. BYRD, J., concurs in the result, but not in the distinction drawn in the last branch of the case as to the point settled and the executory contracts based on Confederate treasury notes, as it is not conceived necessary to the decision of the case. ALABAMA & FLORIDA R. R. CO. vs. WATSON. [ACTION FOR BREACH OF SPECIAL CONTRACT FOR HIRE OF SLAVES.] 1. Demurrer; agreement as to.—An agreement between the parties to a suit, in open court that, "the demurrer to the complaint was to be deemed as duly filed, and every ground of demurrer which could legally be set down, or specified, was to be deemed as duly set down and specified, and a joinder in demurrer was to be deemed as duly filed," does not conform to the requirements of the Code, § 2253, (Revised Code, § 2656,) and can not render nugatory its provisions. And where Alabama & Florida Railroad v. Watson. it appears that "the court, upon full consideration, and of the argument thereon, overruled said demurrer, to which ruling and decision of the court, the defendant excepted," and the record fails to show what were the points of objection raised in the argument, this court will presume in favor of the ruling of the court below, even if there had been a good ground of demurrer, which might have been specified. (Per BYRD, J.) 2. Pleas; agreement as to.-An agreement between the parties to a suit, "that every matter and thing which could be legally pleaded in bar should be deemed as duly pleaded, and that every matter and thing which could be legally replied should be deemed as duly replied, and that every issue which could be legally joined as to the matters in barshould be deemed as duly joined ;" and upon such agreement the parties went to trial, no pleas being filed, amounts to a plea of the general issue, and joinder therein by the plaintiff. (Per BYRD, J.) 3. Same; verified by affidavit.—Such an agreement is not equivalent to a plea, verified by affidavit, as required by the Code, § 2279, (Revised Code, § 2682); and under said agreement, the defendant could only in, sist on such pleas as could be plead without verification. (Per BYRD, J.) 4. Plaintiff a competent wilness in a suit against a corporation.—In a suit against a railroad company, the plaintiff is a competent witness for himself under the act 14th February, 1867, (Revised Code, § 2704.) 5. Evidence; declarations of third person.-Held, upon the authority of Abraham & Bro. v. Nunn, present term, that the admission as evidence against the objection of defendant, of the declarations of a third person, in no way connected with the suit, made to the plaintiff, being a witness for himself, is illegal and will reverse the case on error, although it does not appear that any injury resulted from such admission, to the defendant, the bill of exceptions not purporting to set out all the evidence introduced on the trial. APPEAL from the Circut Court of Montgomery. THIS action was brought by Perry Watson, against the Alabama and Florida Railroad Company, to recover damages for the breach of a written agreement, entered into by the defendant with the plaintiff on the 29th day of January, 1861, and was commenced on the 4th day of November, 1862. The substance of the agreement, which was set out in the complaint, was, that defendant hired from plaintiff, from the 1st January, 1861, to the 1st January, 1862, certain slaves, and among them, one named Spencer, to work on defendant's road, and each party agreed to do certain specified things in regard to said slaves. The agreement was signed by the plaintiff, and "Samuel G. Jones, Superintendent, for Alabama and Florida Alabama & Florida Railroad v. Watson. Railroad Company." The breach assigned was the failure of defendant to comply with certain parts of said agreement, and by reason of said failure, the slave Spencer, who was taken sick, while in the employment of said defendant, died, and was wholly lost to the plaintiff. Judgment was rendered against the defendant on the 5th day of March, 1865. Upon the trial the plaintiff offered the said agreement as evidence, and read the same to the jury, after first introducing a witness, who testified that the signatures to said instrument were genuine, and that they were made to said instrument on the day the same bears date; that Samuel G. Jones was, at that time, the superintendent of said Alabama and Florida railroad; that he was in the habit of employing and making contracts for the hands who worked on said road, and that the hands employed by him under and by said contract, worked on said road and for said company. The defendant objected to the reading of said instrument as evidence to the jury, and set forth several grounds of objection, but the court overruled the objection and permitted said instrument to be read to the jury as evidence, and to this ruling defendant excepted. The plaintiff was allowed to testify as a witness for himself against the objection of the defendant. He testified, amongst other things, that one Comer, who was an overseer on defendant's road, in charge of the slave Spencer, “told him, plaintiff, that said Spencer had been sent by him to the hospital at the depot at Montgomery," and to the admission of this evidence, the defendant excepted. There was an agreement as to the demurrer and pleadings, which will sufficiently appear from the reading of the opinion of the court. The defendants appealed to this court, and assigned as error, the several rulings of the court on the demurrer, and the admission of evidence. RICE, SEMPLE and GOLDTHWAITE, for appellants. BYRD, J.—The bill of exceptions shows that "the defendant demurred to the complaint, and by consent of parties, in open court, the demurrer to the complaint was |