This case was tried by the court without a jury. There were some special pleadings in the cause raising questions which are now assigned as error, but the record shows that the case was tried, without objec*608tion, strictly upon its merits, both, in respect of the general issue and the defenses made or attempted to be made by the special pleas, without regard to the rulings the court made on the demurrers to the special pleas ; and, in view of the conclusion we reach, on the facts, it is, in this condition of the record, unnecessary to determine whether those rulings were correct or not.

The dismissal of the detinue suit which is relied upon by the plaintiff as evidence of the wrongfulness of the detinue complaint, occurred under the following circumstances, shown without dispute : The plaintiff in the action (Houston) bad been sent to prison on conviction of a misdemeanor, and was at the time of the dismissal confined at hard labor in the prison at Coalburg, Alabama. Being thus confined, his attorney agreed with the defendant in the action, or his attorney, that the action of detinue should be settled by defendant (who had possession of the property) turning over to Houston’s wife two of the twelve hogs sued for, and that thereupon the action of detinue should be dismissed, which agreement was carried out, and the action of detinue was dismissed accordingly. The dismissal, as it appeared of record, raised only a prima facie presumption that the complaint was wrongful, and we are of opinion that the fact that it took place by actual agreement of the parties, under the circumstances stated, upon terms of the defendant in detinue giving up part of the property sued for, overcame the presumption. The judgment should, therefore, have been in favor of the defendants.-Baker v. Kennon, 88 Ala. 428.

Reversed, judgment here rendered in favor of the defendants .