— 1. If the testimony in the present record be believed, there can be no question that, the plaintiff made out a prima facie case for recovery. Proving that the dam was of the corpus of her statutory separate estate, it followed that the *477offspring was hers. Partus sequitur ventrem.— Gans v. Williams, 62 Ala. 41; Williams v. Auerbach, 57 Ala. 90.
2. When the attachment was levied, both the plaintiff and her husband claimed that the property was hers. The property was carried away by the officer. A few days afterwards, they together visited the magistrate, and repeated to him that the property belonged to his wife. He, the justice, informed Mrs. Walker that, if she could prove the property was hers, she could recover'it. The justice then expressed an unwillingness to try the case, and proposed to procure another justice to preside over the trial. Both plaintiff and her husband expressed confidence in the justice, and a willingness that he should try the case. No affidavit of claim had been, or ever was made, and no jury was summoned, or'spoken of. — Code of 1876, §§ 3676, etseq. It was then agreed between the justice on one hand, and the plaintiff and her husband on the other, that the trial should be had on the next Saturday. On the day appointed, the plaintiff and her witnesses appeared before the justice, and, without a jury, offered testimony to prove her ownership of the property. The plaintiff in attachment did not attend. The justice continued the hearing until the next Monday, when the plaintiff appeared, and submitted his testimony. Thereupon, the justice decided the property was subject to the attachment. This proceeding, or trial, is relied on as an answer and defense to th q prima facie case, which it is claimed the plaintiff had made out; and the Circuit Court so charged the jury.
We need not, and do not decide, whether it is competent for a married woman, with the concurrence of her husband, to submit to arbitration a disputed right to her statutory estate. There was no agreement to have an arbitration in this case. The plaintiff in attachment never was consulted, and made no agreement to arbitrate. Manifestly, he would not have been concluded by what was done. And it is equally manifest the plaintiff did not understand she was going into an arbitration. The negotiation and agreement between her and the justice, were not that the latter should try the case as an arbitrator, but that he should try it, instead of another justice of the peace, to be procured by him to take his place.' A judicial trial was what was intended; and what the parties did, was coram non judice, and a nullity. The justice had no jurisdiction of the contention, in the absence of a claim interposed according to the statute, and conducted in the manner the statute prescribes. Consent can not give jurisdiction of subject-matter.
Many of the rulings of the Circuit Court are inconsistent with these views; notably, the refusal to give charge No. 2, asked by plaintiff.
Reversed and remanded.