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REPORTS
.... w It
ft*
O F
CASES AT LAW AND IN EQUITY,
ARGUED AND DETERMINED
5/3"
SUPREME COURT OF ALABAMA,
During part of January Term, 1845, all of June Term, 1845, and part of
January Term, 1846.
BY THE JUDGES OF THE COURT.
TUSCALOOSA:
PRINTED BY M. D. J. SLADE.
- 1846.
OFFICERS
^2^
J/L-C ^.
THE SUPREME COURT
DURING THE TIME OF THESE DECISIONS.
HENRY W. COLLIER, Chief Justice
HENRY GOLDTHWAITE,
JOHN J. ORMOND,
Associate Justices.
THOMAS D. CLARKE, Attorney-General.
JAMES B. WALLACE, Clerk.
TABLE OF CONTENTS.
Abercrombie, et al. and Graham,et al.552
Acre and Taylor, 491
Agec V. Steele, 948
Alexander v. Alexander, 797
Alford «fe Mixon v. Colson, use, &c. 550
Alford V. Samuel, ^. 95
Allums.etal. v. Hawley, 584
Anderson V. Dickson, 733
Anderson v. Snow & Co. ctal 504
Andrews &. Bros. v. McCoy, 920
Andrews & Co. and Riggs, 628
Ansley and Carlos, use, &c 900
Ansley V. Mock,' 444
Ansley v. Pearson, et al 431
Armstrong v. Tait, ..: 625
Auld and Wilson, 8i2
Avery and Martin, ..^. 430
Avery & Speed, &c. and Lockhard, 502
Bebee, et al. and Doc ex dem. Ken-
nedy, 909
Bagby, Gov. v. Chandler, et al 230
Baker, Johnson & Co. and Hobson, 357
Ball V. Bank of the State of Ala.... .590
Bank Br. at Mobile and Blackman, 103
Bank, Br. Mobile and Crawford, 79
Bank, Br. at Mobile v. Murphy, 119
Bank, Br.at Mobile and Beard, 344
Bank, Br.Mob. and Hooks &Wright,580
Bank, Br. Mobile and HoUinger &
Wife, 605
Bank, Br. at Mobile v. Hunt, et al. 876
Bank of Mob. v. Sayre & Ledyard, 866
Bank of Mobile v. P. & M. Bank,... 772
Bank of the State of Ala. and Ball,. 590
B5nk, P. & M. and Bank of Mobile, 772
Barclay and Spence, 581
Bamett v. Gaines & Townsend,....373
Bayles, et al.and Bradford, 865
Beard v. The Br. Bank at Mobile,. ..344
Bell & Casey V. Thomas, 527
Bellv. Owen, 312
Blackman v. Br. Bank at Mobile,. ..103
Blackmaa v. Smith, 203
Bogan V. Martin, 807
Bolton & Stracener and Wright,.,. .548
Bond, heirs of, and Smith, ad'mr,... .386
Booth and Wife and Morris, 907
Boring and HufFaker, 87
Borland v. Mayo, 104
Bothwell, etal. V.Hamilton. etal. ...461
Bowling V. Bowling, Ex'r, 53S
Boyd and Haydcn, 323
Boyd and Whitehurst, use, &c. 375
Bradford v. Bayles, et al 865
Bradford and Lewis, 632
Broadnax v. Sims' Ex'r, 497
Brooks & Lucas v. Godwin, 296
Brooks and Mead, use, &c 840
Brown and Woods' Adm'r, 563
Brown and Woods' Adm'r, 742
Buchanan & wife and DufFee, Ad'r, 27
Buford and Wier, .T..134
Burden^ Adm'r, and Treadwell, 660
Burnett V. Handley, 685
Burns and The State, 313
Butler and Wife v. Merch'ts Ins. Co. 146
Cahawba <f- M. R. R.Co. and George,234
Cahawba &, M. R. R.Co. and Gayle, 586
Caldwell, exdera. v. Thorp, .253
Caller v. Vivian, et al., 903
Calvert's Adm'r and WiTson, 757
Carcy,et al. v. Pratt, 238
Carleton and Randolph, 606
Carlos, use, &c. v. Ansley, 900
Carnes and Snedicor, 65.'>
Caskcy, et al. V. Nitcher, 622
Cathcart and Fant, 725
Chandler, et al. and Bagby, Gov'r,...230
Chandler and Eiland, Judge, 781
Chandler v. Hudson, use, &.C., 366
Chandler ^ Moore v. Lyon, et al 35
Chaney, ex parte, 424
Chappell and Lowther, et al 353
Chaudron, ex dem. v. Magee, 570
Childs v. Crawford, 731
Chilton, et al. and Hendricks ^ wife,691
Church, Cong'l, v. Morris, 182
Clapp, ctal. v. Mock, etal 122
Cleggeand Woodward, et al 317
Cloud and Hargroves, 173
Clutc & Mead and Hobson, 357
CoatB, use, ^c. and Windham, et al. 285
Cole cj- Co. and Grant, 519
Cole, use, &c. v. Justice, 793
Colson, use,^c. and Alford <f Mixon,550
Cooper and Graves, 811
TABl.E OF CONTENTS.
Courtland v. Tarlton ^ BuUard, 532
Crafts V. Dexter, 767
Craigf, Adm'r, and Sorrrll, 566
Crawford v, Br. Bank of Mobile, 79
Crawford and Childs, 731
Crawford and Lamkin, 153
Crawford v. Whittlesey, 806
Crenshaw v. Harrison, 342
Crook, Adm'r, ct al. v. Turnipseed,.897
Dexter and Crafts, 767
Dickson and Anderson, 733
Dickson, use, &c. and Dobson, 252
Dobson, et al. v. Dickson, use, &c., .252
Doe ex deni Caldwell and Wife v.
Thorp, 2.'')3
Doe ex dcm. Chaudron v. ]Viagec,...570
Doe ex detn. Farmer's Heirs v. Mo-
bile, Corporation of, 279
Doe ex dem. Hallett ^ Walker v.
Forest, .: 264
Doe ex dcm. Kennedy v. Bebee, 909
Doe ex dem. Pollard's Heirs v. Greit,
etal 930
Doremus, Suydam &. Co. v. Walker, 194
Drew V. Hayne, 438
Duckworth v. Johnson, 309
DufFee, Adm'r, v. Buchanan «fe wife, 27
Dunn V. Dunn, 784
Eiland, Judge, v. Chandler, 781
Elliott V. Hall, 508
Ellison V. The State, 273
Evans, Adm'r, v. Mathews, 99
Evans, use. Sec. v. Stevens,'et al. ...517
Ex parte Chancy, 424
Ex parte Renfrb, 490
Fant V. Cathcart, 725
Farmer's Heirs, ex dem. v. Corpora-
tion of Mobile, 279
Fitzpatrick, Adm'r, v. Harris, 32
Flanagan v. Gilchrist, 620
Forest, ct al. and Doe ex dem Hal-
lett & Walker, 264
Foster et al.and Magee, 320
Foster and Mixon, 357
Frazierand Houston, 81
Frierson & Crow and Skinner, 915
Frow and Tait. use, &c., .543
Gaines and Johnson, 791
Gaines &Townsend and Barnett,...373
Ganaway v. GrifBn, 625
Garey v. Hincs, 837
Garner v. Green and Elliott,.... 96
Garrett, et al an,d Hughes, ct al.. . .483
Gayle v.Cahawba & M. R. R. Co.. ..586
Gewen and Leiper, 326
George v. Cahawba ^ M. R. R. Co. .234
Gilchrist and Flanagan, 620
Gilmer V. Wicr, 72
Givens and Marriott tf- Hardesty, ...694
Givens v. Tidmore, 745
Godwin and Brooks <^ Lucas, 29
I Gooden ^ McKee v. Morrow & Co. 486
Governor v. Chandler, 230
Governor, use, ^c. v. Knight, 297
Graham, et al. v. Abercrombie, et al. 552
Graham v. Lockhart, 9
Graham v. RufF, 171
Graham and Tankerslcy, 247
Grant v. Cole ^ Co 519
Graves v. Cooper, 811
Gretn & Elliott and Gamer 96
Greit ct al and Doe ex dem. Pol-
lard's Heirs, 930
Griffin v. Ganaway, 625
Hall and Elliott, 508
Hall V. Montgomery, 510
Hall and Turcott, .522
Hallett and The State, 159
Hallett & Walker ex dem. v. Forest, 264
Hamilton, Adm'r. and Bothwcllet al.461
Hampton and Shehan, 942
Hampton et al and Walker, 412
Handley and Burnett, 685
Hargroves v. Cloud, 173
Harris and Fitzpatrick, Adm'r, 32
Harrison and Crenshaw, 342
Hayden v. Boyd, 323
Hayne and Drew, 438
Hawley and Allumset al 584
Hendricks ^ Wife v. Chilton et al. 641
Herndon and Mabry, Giller ^
Walker, 848
Hill ajid Martin, Adm'r, 43
Hincs and Garey, 837
Hobson V. Baker Johnson &, Co 357
Hobson V. Clute ^ Mead, 357
Hobson V. Kissam, 357
Hodges V. The State, 55
Hogan&Co.v. Reynolds, 59
Holley etal. and Hollinger et al. . . .454
Hollinger & wife v. Br. B'k Mobile, 605
Hollinger et al. v. Holly ct al 454
Hooks 4- Wright v . Br. B'k Mobile, . 580
Hopper, Garnishee, v. Todd, 121
Horton v. Smith, 73
Houston V. Frazier, 81
Houston V. Prewitt, 846
Houst(^ and Smith, 736
Hudson, use, ^c. and Chandler, 366
Huffiiker v. Boring, 87
Huggins and Treasurer of Mobile, .440
Hughes et al. v. Garrett et al 483
Hunt et al. and Br. B'k at Mobile,. .876
Hunt V. Test, 713
Ivey and Mooney, use, &c 810
Johnson and Duckworth, 309
Johnson v. Gaines, 791
Johnson v. Williams et al 529
Jones V. Jones, 262
Jones and McLendon, 298
Jones and Wilson, J 536
Jones et al. v. Tomlinson, 565
TABLE OF CONTENTS.
Julian et al. V. Reynolds, et al 680
Justice and Cole, use, &c 793
Keenan et al. and Strange et al. 816
Kennedy et al. v. Bebee et al 909
Kennedy and Kennedy's Adm'r, 391
Kent V.Long, 44
Kent's Ex. and Simington, use, &c. 691
Kirksey V. Kirksey, 131
Kirksey et al. v. Mitchell, 402
Kissam & Co. and Hobson, 357
Knight and The Governor, use, &c. 297
Knotts V. Tarver, 743
Keeps and The State, 951
Lamkln v. Crawford, IJp
Lattiinore v. Williams et al 428
Leach v. Williams et al 759
Ledyard and Ohio Life Ins. &, T. C0.B66
Leiperv. Gewcn 326
Lewen and Stone ct al 395
Lewis v. Bradford, 632
Lewis and O'Brien ^ Divine, 666
Lockhard v. Avery & Speed, 502
Lockhart and Graham, 9
Lockwood et aland Pond, 669
Long and Kent, 44
Lowrie v. Stewart, 163
Lowtheretal. v. Chappell, 353
Lyon et al. and Chandler & Moore, . . 35
Mabry, Giller 4- Walker v. Hemdon,848
Magee v. Fisher et al 320
Magee and Doe ex dem. Chaudron, 570
Market al.andClappet al 122
Manning v. Manning et al ...138
Marriott & Hardesty v. Givens, 694
Marshall, a slave, and the State,... .302
Martin Adm'r v. Hill, 43
Martin v. Avery, 430
Martin and Bogan, 807
Massey v. Walker, 167
Mathews and Evans, Adm'r, 99
May and Watson and Wife, 177
Mayo and Borland, 104
McBride and Wife v. Thpmpson, . .650
McCoy and Andrews & Bros 920
McDougaldet al. and Scroggins, ...382
McGehee v. McGehee, 86
McGehee v. Powell, 827
McLemore et al. v. McLemore's AJ.687
McLendon v. Jones, 298
McRae and Tilman etal 677
Mead, use, &c. v. Brooks 840
Mer. Ins. Co. and Butler and Wife, 146
Mitchell's Dis. v. Mitchell's Adm'r, 414
Mitchell and Kirksey etal 402
Mobile Corporation of, and Doe ex
dem. Farmer's Heirs, 279
Mobile, Treas'rof v. Huggins, 440
Mobile, Corporation v. Rouse, 515
Mock and Ansley 444
Mock, et al. and Clapp, et al 122
Molett and Norman, 546
Mooney, use, ^c. v. Ivey, • 810
Mooney V. The State 328
Montgomery and Hall, 510
Morehouse and Smoot <f Easton 370
Morris v. Booth and Wife .....907
Morris and Cong'l Church, 182
Morrison v. Spears, 93
Morrow<f-Co.andGooden& McKee,486
Morrow &Nelson v.Weaver & Fro#,288
Murphy and Br. Bank at Mobile, ..119
Murphy v. Paul, 357
Nitcher and Caskey et al 622
Nixon V. Foster 357
Norman v.Malett ,546
O'Brien ^ Divine v. Lewis 664
Ohio Life Ins. & T. Co. v. Ledyard, 86G
O'Neil, Michaux &, Thomas v.
Teague 345
Owen and Bell 312
Palmer v. Severance & Stewart ....'..53
Parks v.Stunum 752
Parmlee and Sheffield cj- Co 889
Paul and Murphy 357
Peake v. Stout, Ingoldsby &, Co. . . 647
Pearson et al.and Ansley'. 430
Pollard's Heirs ex dem. v. Greit et al. 930
Pond etal. v. Lockwood et al 669
Powell and McGehee 827
Powell and Wright 560
Pratt and Casey et al 238
Prewitt and Houston 846
Rail R., Cahawba & M. and Gayle, 586
Rail R., Cahawba & M. and George,234
Rail Road, Tuscumbia, v. Rhodes, .206
Randolph v. Carlton ....- ; 606
Renfro, Ex parte, 490
Reynolds andHogan & Co 59
Reynolds et al.and Julian 680
Riggs V. Andrews& Co 628
Rhodes and TuscumbiaRail Road, 206
Roundtree v.Weaver ..." 314
Rouse and Mayor, &c. of Mobile, 515
RufFEind Graham 17 1
Samuel and Alford 95
Sankey's Ex. v. Sankey's Dis 6OI
Sayre ^ Ledyard and B'k of Mobile, 866
Scroggins v. McDougald et al 381
Seamans et al. v. White 656
Secor & Brooks v. Woodward 500
Severance ^ Stewart and Palmer.. ..53
Sheffield & Co. v. Parmlee 889
Shehan v. Hampton 942
Shrader v. Walker, Adm'r, 244
Simington, use, &c. v. Kent's Ex.. ..691
Simmons and Trammel 271
Sims* Ex. and Broadnax 497
Skinner v. Frierson &, Crow 915
Smith, Adm'r, v. Heirs of B^nd 386
Smith and Blackman 203
Smith and Horton - 73
Smith V. Houston 736
TABLE OF CONTENTS.
Snioot cf- jiaston v. Morehouse 370
Sncdicor v. Carncs 655
Snow &.Co. ct al. and Anderson 504
Sorrell V. Craig, Adm'r 566
Spann and Strawbridge 820
Spears and Morrison 93
Spencc V. Barclay 581
Spcncc and Spyker 3:J3
gpyker V. Spcnce 333
State v.. Burns 313
State and Ellison 273
State V. Hallett 159
State and Hodges 55
State v.Kreps 951
State V. Marshall, a slave 302
Statev. Mooney 328
State and Tuck 664
Steele v. Agee 948
Stevens ct al. and Evans, use, &c. 517
Stewart and Lowrie 163
Stone et al. v. Lewin .....395
Stonumand Parks 752
Stout, Ingoldsby & Co. and Peake...647
Strange etal. v. Keenanetal 816
Strawbridge v. Spann 820
Tail and Armstrong 635
Tait, use, &c. Frow 543
Tankersley v. J. 4- A. Graham 247
Tarlton tf- Dullard and Courtland, 532
Tartt and Travis 574
Tarver and Knotts 743
Taylor v. Acre 491
Teague & Teague v. O'Neil et al....345
Test and Hunt 713
Thomas and Bell ^ Casey 527
Thompson and McBride and wife, 650
Thorp and Doe ex dem. Caldwell and
Wife, 252
Tidmore and Gi vens 745
Tilman et al. V. McRae 677
Todd and Hopper, Garnishee 121
Tomlinson and Jones et al 565
Trammel v. Simmons 274
Travis v. Tartt 574
Trcadwell, Guar. v. Burden, Adm'r 660
Treasurer of Mobile v. Huggina,... ,440
Turcott V. Hall 522
Turk V. The State 664
Tumipseed and Walker et al 679
Tumipseed v. Crook, Adm'r 897
Tuscumbia R. R. Co. v. Rhodes 206
Vance V. Wells & Co 399
Vivian et al. and Caller 903
Walker, Adm'r, et al. v. Shrader» . .244
Walker v. Hampton et al 412
Walker and Massey 167
V^lkerand Doremus, Suydam & Co.l94
Walker et al. v. Tumipseed 679
Walker v. Watrous 493
Wall V.Williamson 48
Watrous and Walker 493
Watson and Wifev. May 177
Weaver and Roundtree 314
Weaver &Frow and Morrow& Nelson 288
Wells & Co. V. Vance 399
White and Seaman etal 656
Whitehurst, use, &c. v. Boyd 375
Whitsett V. Womack, use, &C........466
Whittlesey and Crawford ^...806
Wier and Buford 134
Wier and Gilmer 72
Williams et al. andLattimore 428
Williams, sheriff, etal. and Johnson, 529
Williams et al. and Leach 7.59
Williamson and Wall 48
Wilson v.Auld 843
Wilson V. Calvert, Adm'r, 757
Wilson V. Jones 536
Windham et al. v. Coates, use, &C..285
Womack, use, &c. v. Whitsett 466
Woods' Adm'r v. Brown 563
Woods' Adm'r V. Brown 742
Woodward etal. v. Clegge, 317
Woodward and Secor &■ Brooks 500
Wright v. Bolton & Stracener 548
Wright v. Powell 560
REPORTS
OF
CASES ARGUED AND DETERMINED,
JANUARY TERM, 1845.
ALEXANDER GRAHAM v. JOHN LOCKHART.
1. A deed of trust operative as a security for the payment of money, is not
fraudulent per se, on account of the reservation of uses to the grantor.
2. Quere^ Whether a deed conveying property for the benefit of sureties,
and fixing tlie law day of the deed to a time subsequent to the maturity of
the debts, for which the sureties are bound, is operative as a conveyance,
without the assent of the sm-eties.
S. So far as the particular creditor is concerned,' tlie debtor, with his assent
may stipulate that the effects conveyed may be continued, in trade or
planting, for a definite or indefinite period, but such a stipulation cannot
prevent any other creditor from his right to sell the resulting trust of the
debtor, in satisfaction of his execution.
4. Quere^ Whether a debtor, by the mortgage of his perishable personal es-
tate, for the security of one creditor, can prevent others from reducing that
estate to money, and thus to determine the risk there always is, of its des-
truction or deterioration in value.
5. The powers of a Court of Equity are sufficient to prevent injury to the
mortgage creditor, as well as injustice to tlie one who has no security.
6. Assuming tliat a deed of trust conveying property as a security, for the
benefit of sureties, and reserving the use of perishable effects, which may
be consumed in the use, has been made operative by the assent of the ben-
eficiaries, yet no other creditor is bound by the contract between those par-
ties. His right is to have all the debtor's estate reduced, at once, to its mo-
ney value, and if tlie secured creditors choose to become the purchasers,
and thus continue their relation with the debtor, a Coiut of Equity is com-
petent to let tliem in to the extent of their debts.
7. In claims interposed under the statute, to property which is levied on as
belonging to the defendant in execution, the bond required to be given may
2
10 ^ALABAMA.
Graham v. Lockhart.
be executed by those claiming the beneficial interest in the property, as
well as by him who is invested with the title.
8. To let in a deed as evidence, it ia not essential that the subscribing wit-
ness should remember its execution. His statement that his superscrip-
tion as a witness was genuine, and that it would not have been placed
there unless he had been called to witness it, is sufficient
9. Where the intention is declared to attack a deed of trust for fraud, it is
competent for the trustee to show that his action, with reference to the trust
property, has been in accordance with the deed, for the purpose of rebut-
ting any presumption which might arise from the acts of the grantor.
10. Where debts are described in a deed of trust, as the consideration upon
which it is founded, a misdescription, either as to the names of sureties,
dates, or smns, will not affect the validity of the deed, and evidence may
be given of debts created by notes, &-c. variant in some respect from those >
described in the deed.
11. Where notes and other written securities are described as tlie conside-
ration of a deed of trust, parol evidence may be given of them, without pro-
ducing them to the jury, when they are not within the control of the party
offering the evidence.
12. The admissions of a trustee having no beneficial interest in the property
conveyed to him, cannot be given in evidence to defeat a deed of trust exe-
cuted solely for the benefit of otliers.
13. Where one of the trusts of a deed was to pay certain outstanding judg-
ments, and afterwards these were superseded by writs of error bonds, it is
competent for the trustee to show their payment by him, after their afl^rm-
ance.
Writ of Error to the Circuit Court of Perry.
Claim interposed by Lockhart to certain property levied by
virtue of a writ oifi.fa. at the suit of Graham against A. B. W.
Hopkins. The Ji. fa. was issued the 6th of February, 1843.
The claim bond was not executed by Lockhart, though his name
is inserted in its caption as one of the obligors. At the trial
the plaintiff moved the Court to dismiss the claim for this rea-
son; but the Court refused to do so, deciding, that as the claim-
ant was a mere trustee his name as an obligor was unnecessary,
if the bond, in other respects, was sufficient, and executed by
those beneficially interested in the trust.
In the further progress of the trial, the claimant offered in ev-
idence a deed executed by Hopkins and Lockhart, dated the
1st November, 1841. It recites that the indentiture is made by
and between Hopkins of the first part, Lockhart of the second^
JANUARY TERM, 1845. 11
Graham v. Lockhart.
and Samuel G. McLaughlin, Henry C. Lea, and " other persons "
of the third part, and purports to be in consideration of the sum
of five dollars, paid by Lockhart, and the " debts as security,"
thereinafter mentioned. It then conveys to Lockhart thirty-
five slaves by name, 1080 acres of land, of which the several
parcels are described. "And also all his stock of horses, mules,
cattle, hogs and stock of any kind ; his corn, cotton, at that time
gathered or ungathered; his farming utensils, all his household
and kitchen furniture, carriage, sulky, and three waggons, and
harness of each ; all his notes, actions, accounts, suits, judgments
or claims, in or out of Court, after paying the expenses on the
same; all books, papers, rights of action, so far as the same can
be conveyed; all right or interest which he had, either at law
or equity, to the same, whether interested as an individual or as
one of the firm of Hopkins, McLaughlin & Co., or Hopkins &
Tarrant ; all interest which he had in a mortgage assigned to
him on the tavern establishment in the town of Greensborough,
called the Warrior House, formerly or now, with all its lots,
appurtenances, &c.; all his real and personal property, after
paying off the judgments heretofore rendered against him." It
then proceeds to declare a trust in these terms: "All of which
is in trust, nevertheless, for the satisfaction of my securities and
other creditors, and on the following express conditions, to wit:
that in the event that any one or more of the debts herein enu-
merated, or any part of any or all, should not be paid oflf, set-
tled, or in some way, by me, or by my agent, or representatives,
satisfied by the 1st day of January, 1843, then and in that event,
the said Lockhart, or his legal representative, shall, after hav-
ing given thirty days previous public notice, on the Court House
door of Perry county, and in one or more newspapers, if any be
published at the time in said county, put up and expose to sale,
at public outcry, to the highest bidder, for cash, the whole, or
any portion, of the previously described property, and pay off
the whole or any portion of the said debts, which remain at the
time unpaid. The undersigned, A. B. W. Hopkins to retain
possession of the said property for the purpose of aiding all the
time in effecting the object of this deed: and the proceeds to be
applied as aforesaid, in the same way as the balance of the pro-
perty— paying the incidental expenses — and the said Lockhart,
as trustee as aforesaid, or representative, to have the right to
12 ALABAMA.
Graham v. Lockhart.
possession at all times, whenever he deems it necessary for the
security of said debts."
It then proceeds to enumerate the debts to be secured and
paid. These are thus described ;
One note for the sum of .^8,041 8G, payable to George W.
Johnson &, Co., made by Hopkins, H. C. Lea, S. G. McLaugh-
lin, A. B. Moore, and others ; due 25th Dec 184L
One note for between 82,500 or $3,000, being an extended,
or part of an extended debt, with A. W. Fletcher and C. J. Phil-
ips, payable to the Bank of the State of Alabama.
One note payable at the Bank of Mobile, but discounted at the
Branch of the Bank of the State of Alabama at Mobile, made
by Hopkins with A.W.Fletcher and R.B. Walthall as his securi-
ties, for near $2,000, due about the 1st February, 1841.
One note made by Hopkins, with A. W. Fletcher as security,
for about $450, payable to .Tesse Crone.
One note, due about the 1st of January, 1841; made by Hop-
kins, for $275, with A. W. Fletcher as security, payable to P.
W. Sink, guardian, &c.
One note made fer the benefit of Hopkins, by W. J. Johnson,
with R. B. Walthall as security, for about $450, due about the
1st January, 1842.
To pay to Mildred H. Williams, or her heirs, a note payable
to her for $3,000, due the 1st January, 1843, made by Hop-
kins.
One note made by Hopkins, payable to S. G. McLaughlin,
for $1,000, or upwards, due about the ist January, 1842.
The balance of a note due Nancy Lea ; due 1842, for about
$1,300.
One note payable to Wiley, Lane & Co. for $1,423 04, dated
15th April, 1840, due eleven months after date, with current
rate of exchange when due, made by Tarrant & Hopkins.
One bill of exchange, made by the same, for $1,007 51, dat-
ed 8th June, 1840, due sixty days after date, drawn on Wm.
Stringfellow, Mobile, Ala.; provided these two last debts should
not be paid off by a deed heretofore made by Hopkins to L. G.
Tarrant, for that purpose, among other things.
Four notes amounting in all to $1,000, payable to E. D. King.
made by the same.
It then proceeds thus: "And in order that the property and
JANUARY TERM, 1845. 13
Graham v. Lockhart
effects above named, may produce the greatest amount for the
purpose herein specified, the said Lockhart is hereby authoriz-
ed to order applied, or apply, the present crop to the payment
of the executions or judgments now standing against me ; for any
of which any portion of said property is liable to be levied on,
or sold; to control my books, papers, property aforesaid; to
sell and do as herein directed ; to sell and do any thing, and
every thing, necessary to carry the object of this deed into
effect."
It is also required of said trustee, that should there be a de-
ficiency in the payment of the debts of the late firm of Hopkins
McLaughlin & Co., out of the effects of the said firm, then also
to pay one -third part, which is my portion of said deficiency, or
debts.
The said property may be sold on the premises, or at the
Court House door of Perry county, as may be deemed best by
the said Hopkins. And 81,000 of the demands in the hands of
Lea & Towns, may, under the direction of the said Hopkins,
be applied by said trustee, to such other debts or demands as
may be against said Hopkins."
The claimant called as a witness, one Godden, whose name
appears to the deed as a subscribing witness; he stated that his
signature was genuine, as was also that of M. A. Lea, another
of the subscribing witnesses, since dead, but that he had no dis-
tinct recollection of ever having seen the parties sign it, or exe-
cute it, or of ever having heard them acknowledge that they
they did so ; that he had a faint recollection that some such in-
strument had been signed by him as a witness, one afternoon,
some time before, but except from the genuineness of his signa-
ture to the deed, he could not say that he knew any thing posi-
tive about it. The plaintiff objected to the reading of the deed;
whereupon the claimant asked the witness, if he did not know
it was not his custom to sign such instruments without havino*
seen them executed, or having heard them acknowledgd by the
the parties, and whether he was not confident, that one or the
other had been done, before he put his signature thereto. The
plaintiff objected to this question, but the Court allowed the wit-
ness to answer it. The answer was in the affirmative, and the
Court allowed the deed to be read, notwithstanding the plain-
%
14 ALABAMA.
Graham v. Loekhart
lifF continued his objection. Afterwards the deed was proved
by another of the subscribing witnesses.
The claimant oflcred evidence of a notice and sale under the
deed, as well as other proceedings under it, pursuant to its pro-
visions, but subsequent to the levy of the plaintiff"'s^./a.; to this
the plaintiff objected, but the Court allowed the evidence, on
the ground that the notice of sale, if in accordance with the
deed, might go to the jury as evidence to rebut the idea of fraud,
for which the plaintiff declared it was his intention to assail the
deed.
The claimant offered to give in evidence an original execu-
tion, in favor of the Bank of the State of Alabama, against A. B.
W. Hopkins, N. W. Fletcher and Charles J. Philips, from the
office of the Clerk of the County Court of Tuskaloosa county,
for $2,489 70, besides costs ; for the purpose of sustaining that
part of the deed which asserts the existence of a note described
in the deed, as due that bank. To this the plaintiff objected,
on the ground that the execution was not duly certified; and
also, because it contained no sufficient proof of the identity of
the debt to be levied, with that described in the deed. It was
allowed to go to the jury. The claimant offered in evidence, a
note due 1st June, 1841, to P. L. Sink, made by Hopkins and
N. W. Fletcher, for $275, without any other proof of its identi-
ty with a similar note described in the deed, than such as arose
from the genuineness of the signatures. This note was produc-
ed from the files of Perry Circuit Court, in a cause in which
judgment had been rendered.
He also offered to prove, by William J. Johnson, the exis-
tence and contents of a note made for the benefit of Hopkins, by
W. J. Johnson, with R. B. Walthall as his security, for about
$450, due about the 1st January, 1842, without producing the
note, or accounting for its absence, except that the note was de-
livered to its payee. The witness was allowed to testify, and
stated that he himself had executed the note for Hopkins's
benefit.
The Claimant offered in evidence, a note made by Hopkins
to Mildred H. Williams, or her heir?, for $3,000, due 1st Janu-
ary, 1843, dated February, 1841, and proved Hopkins'
signature. It was also in evidence that Mildred H. Williams,
at the date of the note, and time of trial, was a married woman.
JANUARY TERM, 1845. 15
Graham v. Lockhaxt
He also offered a note made by Hopkins to L. Y. Tarrant, in-
dorsed by the latter to S. G. McLaughlin, for $1,284, due 1st
January, 1843, for the purpose of sustaining that part of the
deed which speaks of a note to McLaughlin, for 81,000, or up-
wards, due about the 1st January, 1842, and proved by Tarrant,
that when it was executed, it was designed for McLaughlin'a
benefit.
The claimant also offered in evidence, the indorsementof a writ
taken from the files of the Circuit Court of Perry county, con-
taining the description of a note by Tarrant & Hopkins to Wi-
ley, Lane & Co., for CI, 423 04, dated 15th April, 1840, due
eleven months after dale, with current rate of exchange, with-
out producing, or accounting for the absence of the note, oth-
erwise than the testimony of the clerk, that it was not on file,
and that judgment on it had been rendered.
Also, three notes made by Hopkins to E. D. King, all dated
21st August, 1841, one for $200 75, due 1st January, 1842;
one for the same sum, due 1st January, 1844, and the third for
$700, with interest from date, one half payable 1st January,
1842, and the other halt payable 1st January, 1843, and proved
the signature, and that they were obtained by him from King's
possession.
The claimant likewise offered a note made byS.G. McLaugh-
lin, Hopkins and N.W. Fletcher, for $1,000, due 1st June, 1842.
To this the plaintiff objected, because there was no proof that
Hopkins and Fletcher were securities, and because that describ-
ed in the deed, is said to be due 1st January, 1843.
All this evidence was objected to by the plaintiff, but admit-
ted by the Court, and thereupon the plaintiff excepted. The
plaintiff, in cross-examining one of the claimant's witnesses, ask-
ed what the claimant said and admitted about the deed of as-
signment, in which he was trustee. The claimant objected ta
this, and the Court ruled that Lockhart, being only a trustee, and
not having executed any bond for the trial of the claim, was a
competent witness for the plaintiff, if willing to be sworn, and
that no evidence of his sayings could be introduced.
The claimant, in reference to that part of the deed which is
supposed to require the trustee to pay off all judgments render-
ed against the grantor, before the making of the deed, intro-
duced sundry judgments, which had been recovered before its
16 ALABAMA.
Grahain v. Lockhart.
date, but which had been superseded afterwards by writs of
error to the Supreme Court, where they were afterwards af-
firmed against the principal and securities in the writ of error
bonds; and also offered evidence of the subsequent payment of
these judgments thus affirmed with damages and costs. The
Court overrul(;d the plaintiff's objection to this, as Evidence.
The plaintiff moved the Court to charge the jury —
1. That the deed was void on its face.
2. That it contained stipulations, promises and conditions
inconsistent with the statute of frauds, and condemned by it,and
was therefore null and void.
This was refused, and the jury instructed, that the deed was
not in itself fraudulent, and contained no provision inconsistent
with the statute of frauds, and unless fiaud in fact was estab-
lished by the proof, they ought to find for the claimant.
3. The plaintiff also requested the charge, that the last clause
in the deed was fraudulent, and being so, the whole deed was
void. The Court refused the charge as requested, but ruled
that clause was void for repugnancy with previous provisions
of the deed, but was not fraudulent so as to taint the whole trans-
action, and fender it void.
4. There was proof that the trustee, on the 13th April,
1842, hired an overseer for the plantation, and delivered to him
the field hands to manage and control, with instructions to con-
sult Hopkins as to the cultivation and management of the plan-
tation. On this the plaintiff requested the charge, that if the
jury should believe that Hopkins remained in possession of the
trust property, after the making of the deed, and used the pro-
visions from the same for himself and family, before and during
the year 1843, this was a badge of fraud. This the Court re-
fused, and instructed the jury, that the possession of the proper-
ty, before and during that year, by Hopkins, subject to the con-
trol of Lockhart, subsequent to the making of the deed, was not
inconsistent therewith.
The plaintiff excepted to all these several charges, refusals
to charge, and decisions of the Court, and now assign them as
error.
A. Graham and H. Davis, for the plaintiff in error, made the
following points :
JANUARY TERM, 1845. 17
Graham v. Lockliart.
1. The claim bond should have been executed by Lockhart.
[Clay's Dig. 211, §§ 52, 55 ; 213, §§ 02, 64 ; Minor's Rep. 406.]
If the trustee improperly refused his aid, recourse could be had
to a Court of Equity. [2 S. & P. 356.]
2. The evidence admitted by the Court was improper, as
parol evidence cannot be admitted of the contents of writings
unless their loss is shown, or their absence accounted for.
3. The evidence proving the admissions of Lockhart should
have been allowed, for it is certain he was not a competent
witness. [Green, on Ev. 347, 393-4.] His liability for costs
was sufficient to disqualify him. [lb. 401, 447, 455.]
4. The charges refused and those given, involve the princi-
pal question, which is, whether the deed, on its face, is fraudu-
lent and void. It is supposed to be so for many reasons.
1. Because partnership property is conveyed to pay individ-
ual debts. [4 Paige, 35.]
2. The grantor reserves a possessory interest and benefit to
himself. [4 John. 464 ; 5 Ala. Rep. 297.]
3. Because of the stipulation that the property shall not be
sold until the 1st of January, 1843, fifteen months after the exe-
cution of the deed. [1 1 Wend. 203 ; 4 Ala. Rep. 380.]
4. The deed does not name all the creditors and beneficia-
ries. [1 1 Wend. 203 ,- 4 Ala. Rep. 380.]
5. The conveyance is conditional, and every thing belonging
to the grantor is conveyed. [lb.]
6. The grantor indirectly, and by a secret trust, stipulates
for a pecuniary advantage to himself. [2 Kent's Comm. 535 ;
11 Wend. 201 ; 9 Porter, 571 ; 4 Ala. Rep. 379 ; 5 Paige, 374.]
7. Of this nature is the power of appointing creditors, [14
John. 463; 11 Wend. 188; 7 Paige, 563; 4 Ala. Rep. 380 ; 5
Cowan, 566.]
8. The trustee is authorized to sell either all or a part of the
property, to pay all or a 'part of the creditors, and the grantor
retains the power to determine between two places of sale. [9
Porter, 572.]
9. The deed is inoperative, inasmuch as it never has been
executed by the parties of the third part, and their assent can-
not be presumed, for it is not for their benefit to be delayed un-
til the period stipulated for.
3
18 ' ALABAMA.
Graham v. Lockhart
5. If the deed is void in part, as against the statute, it is void
intoio. [1 S. & P. 156; 14 Jolin. 466; 5 Cowan, 548; 4
Paige, 37.]
Hopkins and T. P. Chilton, contra, argued —
1. It is not material by whom the bond is executed ; the ob-
ject was security to the plaintiff in execution, and this is as
well attained by other names. A bond by one, when there
were more than one, has been held good. [Minor, 406.]
2. The claimant in the Court below, was properly attempt-
ing to show, that the debts mentioned in the deed were bona
fide^ and real. The evidence was offered, and admissible, for
this purpose, and was not, as supposed by the plaintiff, giving
evidence of writings, &c., without producing them. It was
entirely unnecessary to produce the notes, &c., nor would any
misdescription of the debts avoid the deed.
3. The question is not, whether Lockhart could have been
sworn as a witness, but whether evidence of his admissions
would be competent to defeat the deed . What he said or ad-
mitted, is not shown.
4. As to the question of fraud per se —
1. Many of the objections made to the deed do not affect this
question ; for, conceding the utmost weight to them, they would
be considered only as badges of fraud, and consequently would
be left to the jury to determine upon.
2. The deed must receive a reasonable construction ; thus it
cannot be supposed that a power is given to the trustee, to pay
one part of the creditors named, and to omit to pay another.
Its meaning is to pay all, or whatever part shall remain unsatis-
fied. So the provision for the sale, upon the day named, un-
less the debt was in some way paid by the grantor, is no reser-
vation of an interest: itis what would be the law of the case, if
no such clause was inserted, and therefore does not affect the
validity of the deed.
3. Conceding that the deed does assign the grantor's interest
in partnership property, it is neither fraud per se, nor a badge
of fraud. It may be a fraud on the partner, for his co-partner
to assign the effects of the partnership, to pay or secure his in-
dividual debts, but it does not affect the validity of a general
deed that it may cover a partnership interest.
JANUARY TERM, 1845. 19
Graham v. Lockhart.
4. The judgment creditors existing at the execution of the
deed, were properly paid, but if otherwise, that was a question
for a specific charge, and did not affect the validity of the deed.
5. Indeed, the only questions which do go to this extent, are
the reservation of the property fronn sale until the first January,
1843, and the appropriation of the $1,000, under the last clause
of the deed. Now the first of these points is supposed to be
covered by the decision of Ravisies v. Alston, 5 Ala. Rep.
297, 303.
6. The appropriation of the 81,000 out of the demands in
the hands of Lea & Townes, to be paid as the grantor might
direct, is not within the principle which governs the decision of
Gazzam v. Poyntz, 4 Ala. Rep. 378, inasmuch as there can
be no interference with either of the creditors named as prefer-
red, nor with the property. It is nothing more than a reserva-
tion of $1,000 out of the deed, to be paid by Hopkins to other
creditors than those named in the deed. If no appointment is
made, the whole remains to the named creditors. It is not a
power which could be used so as to benefit the grantor, for the
money is gone from him under any circumstances.
GOLDTHWAITE, J.— 1. The principal question here, which,
somewhat out of its order, we shall consider first, is that arising
out of the refusal of the Court to instruct the jury, that the deed
of trust, in evidence, is fraudulent and void, on account of the
reservations for the grantor's benefit, contained in it.
Since the cause was argued; two others, Elmes V.Sutherland
and Pope v. Irvin, have been determined by us, in both of which
the same general principles were involved, and m which we
held, that deeds of trust, operative only as securities for the pay-
ment of money, were not fraudulent per se, on account of reser-
vations of uses for the benefit of the grantor. [7 Ala. 262; id. 690.]
2. After a deliberate consideration of this deed, we are satis-
fied there is nothing on its face to warrant us in pronouncing it
as intended to delay, hinder or defraud creditors, and that such
cannot be the legal eflfect of it.
The intention is very apparent, we think, to appropriate the
debtor's property to the payment of the specified debts, and for
the indemnity of the persons who stand upon many of them as
sureties for the grantor. It is questionable whether this deed,
20 ALABAMA.
Graham v. Lockhart.
either as to creditors or sureties, according to wiiat is said in
Elmes V. Sutherland, has any efFect as a conveyance, without
the assent of the creditors, or sureties, or some of them. If
such an assent was given, then it operated as an agreement by
the creditor, to postpone the payment of his debt until the law
day of the deed, and its effect on the surety was to prevent him
from resorting to a sale of the trust effects, for the same period.
The reason why this deed does not at once operate as a con-
veyance in favor of the sureties, is, that it is not necessarily
beneficial to them, inasmuch as there is no reason why they
should assent to be responsible to the creditor out of their own
estate, if the effects of the debtor is sufficient to pay all his
debts. It cannot, at this day, be questioned, that a debtor has
the right to appropriate the whole, or any part, of his estate to
the indemnity of his sureties, and it is equally clear, that if the
same stipulations as are found in this deed, were contained in a
mortgage, no other debtor would have just cause of exception
to it. Every mortgage, or deed of trust, intended as a security,
necessarily contains a resulting trust for the debtor, and the
stipulation so customary in conveyances of these kinds, that the
debtor shall have the control and benefit of the estate, until the
law day,is no more than he is entitled to, without any stipulation.
3. It is a very different matter, however, when it is asserted,
that a debtor, under pretence of a mortgage, may continue his
effects in trade, or in planting, for a definite or indefinite period.
So far as the particular creditor is concerned, this is all a fair
subject of stipulation and contract, but it cannot interfere to pre-
vent any other creditor from his right to sell the resulting trust
of the debtor in satisfaction of his execution.
4. So, too, it is a subject deserving great consideration, wheth-
er a debtor can, by a mortgage of his perishable personal es-
tate, for the security of one creditor, prevent others from re-
ducing that article to money, and thus determining the risk there
must always be of its destruction, or depreciation in value; a
risk which might fall upon all alike, as the mortgage creditor
would have the same right as any other creditor, to look to the
residuum of his debtor's estate, or to that afterwards acquired
by him, in satisfaction of the debt, in the event of the deprecia-
tion or destruction of the mortgaged estate; and thus the unse-
cured creditors' fund might be lessened.
JANUARY TERM, 1845. 21
Graliam v. Lockhart.
5. All these difficulties could be avoided by an immediate
sale, and the powers of a (>ourt of Equity are amply sufficient
to prevent injury to the mortgage creditor, as well as to prevent
injustice to the one who has no security.
6. Assuming that all the creditors and sureties indicated by
the deed of trust, have assented to the proposed delay, in the
payment of the debts named, it by no means follows that an-
other creditor must wait the termination of this contract be-
tween these parties, if by a present sale of the property, any
thing would remain for his satisfaction ; nor is he bound by the
stipulations between others, that perishable property may be
consumed in the use of it. His right, is, to have all the debtor's
estate reduced at once, to its money value, and if the secured
creditors choose to become purchasers, and thus continue the
relations between them and their debtor, a Court of Equity is
competent to let them in to the extent of their debts, but all
beyond, in common justice, ought to bo fairly appropriated to
such other creditors as pursue the common debtor with legal
vigilance.
Under the views here expressed, it is obvious there can be
no well grounded fear, that debtoi's will make these sorts of
conveyances the means of delaying or defrauding other credi-
tors, and the great evil is avoided of vitiating securities, which,
in many, perhaps most cases, are honest and bona fide.
These conclusions necessarily dispose of all the charges re-
quested to be given, as the deed, if free from fraud in fact, is
valid in law.
7. The other points in the case will pow be examined, in the
order they are disclosed by the record. And first, of the mo-
tion to dismiss the claim, because the bond was not executed by
the claimant. The condition of the bond, as now required by
law, is for the forthcoming of the property, if found subject to
the execution, and for the 'payment of such costs and damages
as shall be recovered. [Clay's Digest, 213, § 62-] In prac-
tice, the claim is a distinct ^suit, in which the plaintiff in execu-
tion is the actor^ and the claimant is the defendant ; costs are
rendered against either, according as the suit is determined,
and damages are sometimes assessed against the claimant, when
it appears that the claim is interposed for delay. It is obvious,
therefore, so far as the cost and damages are concerned, that
22 ALABAMA.
Graham v. Lockhart
the bond is merely an additional security, inasmuch as the claim-
ant is already liable for them by force of the judgment. But
the bond is also intended to secure an indemnity, if the proper-
ty, after condemnation, is not re-delivered to the sheriff. This
indemnity may be equally benefical to the plaintiff without, as
with, the claimant's name to the bond ; and as cases may occur
in which it will be onerous on the claimant thus to bind himself,
we consider the proper construction of the act, to be such as
will advance the remedy intended by it. The intention of the
act, was, to give those whose property is seized under execu-
tions against others, the right to contest the party's claim to
sell it, instead of a suit against the sheriff, or persons purchasing
it. In a great variety of cases, the person having the legal ti-
tle may be, as he is here, a mere trustee ; and there is no reason
why he, instead of those actually interested in the property,
should give the bond. At a very early day, it was held by this
Court, that one of several claimants might give the bond,
(Marrs v. Gantt, Minor, 406,) and it is only an extension of the
same view, to hold, that it may properly be entered into by any
one claiming to be beneficially interested in the property levi-
ed on.
8. It is not essential, to let in a deed as evidence, that the sub-
scribing witness should remember, with precision, its execution
by the parties. If this was the rule, the imperfections of the
witness's memory would avoid the deed. Here, however, he
stated that his signature, as a subscribing witness, was genuine,
and that it would not have been placed there, unless he had
been called to witness the instrument. This, in our opinion,
was sufficient to let in the deed to the jury, though it would ob-
viously be of little reliance, if the question at issue had been the
execution, or non-execution, of the deed.
9. The plaintiff having avowed his intention to attack the
deed for fraud, it was entirely proper for the claimant to offer
evidence of every matter which could raise a contrary in-
ference. Although we are not prepared to say, that any act
or omission of action, by the trustee, would vitiate the deed, yet
an inference of fraud might be drawn, if the cestuis que trust
had permitted the property to be used by the debtor as his
own. In this view, it was entirely proper to show the action
of the trustee, with reference to the trust property, and in ac-
JANUARY TERM, 1845. 23
GrsJiam v. Lockhart.
cordance with the deed, to rebut any presumption which might
arise from the acts of the debtor.
10. The questions arising out of the admissions of the evi-
dence offered to sustain the consideration of the deed, or, in oth-
er words, the proof of the indebtedness described by it, are of
some importance, and call for a more extended consideration.
It is objected, that the description in the deed, is variant from
the proof, and also, that the indebtedness could not be shown,
without producing the notes, or accounting why they were not
produced.
The necessity for proof to sustain the consideration of the
deed, is shown by the decisions of Bradford v. Dawson, 2 Ala.
Rep. 203, and Ravisies v. Alston, 5 Ala. Rep. 297 ; but in nei-
ther of these cases is it asserted that the proof must correspond
precisely with the description in the deed. It is quite evident,
that in drawing deeds of this description, the draftsman, and the
grantor may be ignorant of the precise terms of the writing, evi-
dencing the indebtedness intended to be secured ; and it seems
most unreasonable that a conveyance otherwise bona jide,
should be avoided by a misdescription of the debt. There is a
dearth, quite remarkable, of decided cases, bearing directly on
this subject, and we have found but two in point. In Johns v.
Church, 12 Pick. 557, one of the questions was, whether parol
evidence was admissible to show, that a note for $256, produc-
ed at the trial, was the instrument described in a mortgage
given to secure it, as for the sum of $236 ; and the evidence was
held proper. In Commercial Bank v. Clapier, 3 Rawle, 335,
the testimony of the grantor of a deed was allowed, to show,
that a note different from that described in the deed, was the
one intended to be secured, and that the one described never
existed.
There is a marked distinction between letting in parol evi-
dence to show a different consideration from that stated in the
deed, when the contest is between the parties to it, and a stran-
ger. The rule is universal, that a stranger may attack a deed
by showing, either that it is without consideration, or is for a
different one than stated, (2 Starkie's Ev. 556;) and though it is
said that one who claims under a deed, will not be permitted to
show a consideration, in support of it, different from that ex-
pressed, (2 Starkie's Ev. 556,) yet we think this expression must
24 ALABAMA.
Graham v. Lockhart.
be understood as referring to a difference in the quality of the
consideration, and not that it must be shown to be precisely as
stated. Thus, in Garret v. Stuart, 1 McCord, 514, it was held,
that a greater or less consideration of the same character might
be shown. And in Hinds v. Longworth, 11 Wheat. 199, a
deed importing a voluntary conveyance from a father to a son,
being assailed by a creditor, the party claiming under the deed,
was allowed to shew the indebtedness of the father to the son,
in an amount equal to the value of the properly conveyed.
See also, Jack v. Dougherty, 3 Watts, 151 ; Rex v. Scamman-
der, 3 Term. 374 ; Williams v. Beaumont, Dyer, 146; a.: Duval
V. Bibb, 4 H. «fe M. 113 ; Eppes v. Randolph, 2 Call, 103 ; Har-
vey V. Alexander, 1 Rand. 219 ; Bullard v. Briggs, 7 Pick. 533.
When the matter of consideration is collaterally presented, as
it seems to be always, when a deed is to be supported by proof
of a consideration, or defeated for the want of it, the question of
letting in parol evidence, to explain or alter the written instru-
ment docs not arise. Lord Thurlow, in Coote v. Boyd, 2 Bro.
0. 527, puts the matter on its proper ground, when he says, "a
question of presiimptmi donee prohettir in conirarium luill
let in all sorts of evidence. When the presumption arises/ro?7i
the construction ofioords, merely as ivords, no evidence can be
admitted. In this case, the question is not one of construction,
but is of intention, and the deed is valid, or void, as there may
be a consideration or the want of it shown. In this connection
it is of little importance whether there is a mistake in the de-
scription of the debt, as the deed would be Sonaj^tZe, if there was
one substantially agreeing with the description, and if entirely
misdescribed, there is no doubt of the power of Chancery to
correct the mistake. In Brooks v. Maltbie, 4 S. & P. 96, and
Mead V. Steger, 5 Porter, 498, the conclusions to which we
have arrived, are stated as the result of the cases, though the
questions then before the Court were not the same as they now
are. See Stover v. Herrington, et al, 7 Ala. Rep. 142.
The decisions we have cited, lead directly to the conclusion,
that so far as there may be a difference between the debts de-
scribed as the consideration of the deed, and those shown in evi-
dence, either as to the names of the sureties, debts or sums, this
does not affect the validity of the deed, but at most furnishes
grounds for presumptions, as the scale of evidence may incline.
JANUARY TERM, 1845. 25
Graham v. Lockhart.
We are satisfied this is the proper consideration to be given
the subject and it seems the only one which will enable the
true merits of a conveyance to be put before a jury, in a con-
test between a creditor and one claiming under the deed.
11. With regard to the objection, that the notes and other
evidences of debt were not produced, or their absence account-
ed for, there is a different and sufficient answer. It is obvious,
that neither the trustee, nor the debtor's sureties, have the control
of the notes, &c. described in the deed. We do not know from
the bill of exceptions, whether it was the sureties or the credi-
tors, who availed themselves of the provisions of the deed, and
if it is the former, as seems most probable, no suspicion arises
that the originals were withheld from any improper motive.
It is very questionable if the trustee or the sureties could com-
pel the creditors to produce the notes held by them, to be used
in this suit, (Bell v. Lorilard, 10 Pick. 9 ; Mills v. Oddy, 6 C. &
P. 728; Scheleneker v. Maxey, 3 B. & C. 789;) though it is
said this is rather ihe privilege of the witness than of the party.
[Mills V. Oddy, supra.] But, h(5wever this may be, we think,
on other and more general grounds, there was no necessity to
produce the notes. The general rule is, that when the writing
is the exclusive medium of proof, it must be produced or its ab-
sence accounted for. [See cases collected in Cowan & Hill's
Notes, 1208.] Here the fact to be proved, is the indebtedness
of the grantor, or that the sureties named stood in that relation
to him, and both these may as well be proved orally, as by the
production of the writing. Indeed, it will admit of question,
whether the production of the notes, without further proof,
would be sufficient to establish either fact, on account of the fa-
cility with which such evidence might be fabricated. In Lamb
V. Maberly, 3 Monroe, ; the action was for the price of a
note» sold by the plaintiff to the defendant, and it was held,
evidence might be given of the sale, without producing the note.
In Spears v. Wilson, 4 Cranch, 398, evidence was given of a
deed of slaves, without producing it, to show the nature of the
possession vi^hich accompanied it. These cases seem to recog-
nize the rule just stated, and as there is nothing to authorize the
inference, that the notes themselves could be procured, or were
within the control of the party offering the evidence, we think
the objection cannot be sustained.
4
26 ALABAMA.
Graham v. Lockhart.
12. The next question is that which relates to the exclusion
of evidence of the admissions of the trustee, with respect to the
deed. What those admissions were, we are not informed, but
the inference is, they were offered to defeat the deed, and in this
view, we think the evidence inadmissible.
The English Courts seem generally to maintain, that the ad-
mission of the plaintiff on the record is always evidence, though
he be but the trustee for another. [Craib v. D'Aeth, 7 Term,
670, in note ; Bauerman v. Radenius, ib. 663.] In the latter
case, Mr. Justice Lawrence said he had looked into the books,
and could find no case in which it had been held, that an ad-
mission by the plaintiff on record was not evidence. To per-
mit a mere nominal party to defeat a suit by his admission, and
yet refuse the same effect to his release of the action, seems to
involve a contradiction of principle. However this is, it is cer-
tain the English Courts have held the latter doctrine. In Payne
V. Rogers, 1 JDoug. 407, where the defendant had procured a
release from the nominal plaintiff, the Court ordered it to be
delivered up, and permitted the real plaintiff to proceed with
the action. And a nominal plaintiff in ejectment, has been com-
mitted for a contempt, upon releasing an action. [1 Salk. 260.]
On the other hand, it is said, in Buller's Nisi Prius, 233, that the
answer of a trustee can, in no case be received against the
cestui que trust, and it has also been held, that the admissions
of neither guardian, or procAem ami, can be received against an
infant. [Cowling v. Ely. 2 Stark. Ca. 366 ; Webb v. Smith, 1
R. & M. 106; to the same effect is Isaacs v. Boyd, 5 Porter,
388.] In many of the Courts of this country, a rule different
from that usually recognized in England, has obtained very
generally; and the party having the beneficial interest in a
chose in action, is not affected by the admissions, or release, of
the nominal plaintiff. [See cases collected in Cowan & Hill's
Notes, 163 ; Chitty on Bills, 9, note 1.] In conformity with the
general current of decision, we held, in Chisolm v. Newton, 1
Ala. Rep. N. S. 371, that the admission of the nominal plaintiff,
made after the commencement of the suit, could not be given
in evidence to defeat the action. And in Duffee v. Pennington,
ib. 506, as well as Prewit v. Marsh, IS. & P. 17, it was con-
sidered the nominal plaintiff might be called as a witness by the
defendant and sworn, if he made no objection.
JANUARY TERM, 1845^ 27
Duffee, Adm'r, v. Buchanan and Wife.
It is true that most of the American cases are upon assigned
choses in action, but the principle on which they proceed is,
that one having no interest in the suit, ought not to be permit-
ted to defeat or affect it, by his admissions ; this seems equally
applicable to a trustee, who is invested with the legal title to a
specific chattel, solely for the benefit of others. Whether the
claimant, under the circumstances of the case, might have
been called as a witness, it is not necessary to determine, but
we may be permitted to remark, that independent of his rela-
tion to the cause, as a party upon the record, there seems no
objection on the score of interest. [12 East, 250; Duffee
V. Pennington, 1 Alabama Reports, N. S. 506; Mann v.
Ward, 2 Atk. 229 ; Hall v. Tyrrel, Bard. K. B. 12 ; Goss v..
Tracey, 1 P. Wms. 290; Craft v. Pyke, 3 ib. 181 ; Philips v.
D, of Bucks, 1 Vern. 230; 1 P. Wms. 595 ; Ballew v. Russell,
1 B. & B. 99.]
13. The deed authorizes the trustee to apply the proceeds
of the crop of the year, when it was made, to the payment of
the then subsisting judgments against the grantor. The circum-
sance, that these were afterwards superseded by writs of error
sued out by him, and subsequently paid by the trustee, was pro-
per evidence to rebut any presumption of fraud arising out of
the omission to show what had been done with the property.
From what we have said, it will be seen that we consider the
case as free from error, in all the points presented.
Judgment affirmed.
9
DUFFEE, ADM'R, v. BUCHANAN AND WIFE.
1. A testator declared in his will, that certain property " shall be equally di-
vided between my mother and my two sisters, H. and M." Held, that the
meaning of the will was, that each was to have one third part
2. An administrator is chargeable upon his settlement, with the amount of a
note due by him to his intestate, as money in his hands.
3. An administrator may subject himself to be charged with the notes of
third persons, as assets, upon proof of neglect or mismanagement ; and
28 ALABAMA.
Diiffee, Adm'r,v. Buchanan and Wife.
when the record recites, that the Court, upon the proof adduced, was sat-
isfied he was chargeable with such notes, it will be considered in this
Court, that the proof was sufficient, if no objection was made to it in the
Court below.
4. The administrator having appeared in obedience to the citation, is affect"
ed with notice of all the subsequent proceedings.
Error to the Orphans' Court of Tuskaloosa.
This was a proceeding, upon the final settlement of the estate
of Seaborn P. Gillespie, of which the plaintiff in error was ad-
ministrator, with the will annexed. The will is as follows:
First — It is my will and desire, that the proceeds of a promis-
sory note, due me from Matthew Duffee, amounting to eight
hundred dollars, or thereabouts, and another for about two
hundred dollars, shall be equally divided between my mother,
Margaret Gillespie, and my two sisters, Harriet Williams and
Mary Gillespie.
Second — It is my will and desire, that my mother and sisters,
above named, shall receive the amount of a debt, due me from
William McGuire, amounting to about thirty dollars, and also
the amount of a debt, due me from Mr. Samuel, amounting to
about five dollars, to be equally divided between them, as above
named.
Third — It is my will and desire, that my mother and sisters,
above named, shall receive a certain horse of mine, now in the
possession of Wm. Robinson, (after deducting the value of his
keeping,) also, a sulkey, to be divided between them as afore-
said.
Fourth — It is my will and desire, that my other little debts
and property, which I may have, after the same is arranged
and settled, shall be given as aforesaid, to my mother and
sisters.
Fifth — It is my will and desire, that Matthew Duffee, should
be allowed, as a set oflfto the amount due me, for the rent of
my house, any sum he may have expended in putting additions
to said house.
On the 19th April, 1844, the following order was made : It
appearing to the satisfaction of the Court, that Matthew Duf-
fee, administrator of the estate of Seaborn P. Gillespie, deceased,
JANUARY TERM, 1845. 29
Duffee, Adm'r, v. Buchanan and Wife.
has made no settlement of his accounts, as such administrator:
it is therefore ordered, by the Court, that a citation issue, to
said Matthew Duffie, to appear before this Court on the second
Monday in May next, to file his accounts and vouchers, and
make settlement of the said estate.
At the return of the writ, Duffee appeared and presented his
account and vouchers, for a settlement, and the Court received,
audited and stated said account, and reported the same for al-
lowance, at a term to be held on the second Monday in Au-
gust next, after, and directed publication to be made.
On the second Monday in August, 1844, a decree was ren-
dered as follows : Be it remembered, &c. that at this term, came
up for a final settlement of the estate of Seaborn P. Gillespie,
deceased, the accounts and vouchers of Matthew Duffee, ad-
ministrator of said estate. The account having been audited,
&c., heretofore, and due notice thereof given, as required by
law, the Court proceeded to consider the same, and the excep-
tions thereto. It was objected, that as the account took no
notice of the two debts stated in the will, to be due from the ad-
ministrator to the testator, and one also due from Moses Mc-
Guire, said account was not correct, and the Court, upon the
proof adduced, being satisfied . that said amounts should be
charged against said administrator, as well as the amount of
two hundred and eighty three dollars and fifty cents, in said ac-
count stated, and after deducting the amount charged, $293 88,
and $100 to the administrator, for his services, and $42 57
Court charges, there is left, calculating interest fiom the time
of testator's death, on the sum of $1,020, which remained after
deducting charges, from the credits of the estate, said testator
having died 26th February, 1834, the sum of $1,717 43, to be
equally divided, according to testator's will, between his mother^
Margaret Gillespie, and his two sisters, Harriet Williams and
Mary Gillespie. The sum of five liundred and seventy-two dol-
lars thirty-seven cents, is hereby decreed to be the distributive
share of Harriet Williams ; and it appearing to the Qourt that
Margaret Gillespie departed this life, before this settlement, and
that David Johnson is her administrator, it is hereby decreed,
that $572 is the distributive share of said Johnson, as adminis-
trator. It is hereby further decreed, that $572 is the distribu-
tive share of E.Buchanan and Mary his wife, formerly Mary Gil-
30 ALABAMA
Duffee, Adm'r, v. Buchanan and Wife.
lespie, testator's sister, which several sums, said administrator
is required to pay to the persons to whom they are rcspeclively
due.
From this decree the administrator prosecutes this writ, and
assigns for error —
1. That it does not appear at whose instance the citation is-
sued, or the account and other proceedings were had.
2. It does not appear that any of the parties, and particular-
ly Duffee, were present when the decree was made.
3. Duffee is charged, with the notes mentioned in the will,
without its appearing that they ever came to his hands, or con-
tinue unpaid.
4. The decree in favor of Buchanan, should have been for
one fourth, instead of one third.
W. Cochran, for plaintiff in error, upon the first point, cited
1 Ala. Rep. 596. If the administrator failed to bring into the
account, items supposed to belong to the estate, an issue should
have been made up on notice, or after attachment. [(Clay's
Dig. 226, § 28.]
An examination of the will, shows that the mother was enti-
tled to one half the estate, and the sisters to the residue.
Peck & Clarke, contra. The notes charged to Duffee, are
his own notes, with which he is chargeable as cash. No notice
was necessary, because he was already in Court.
The citation may be at the instance of the Judge of the Or-
phans' Court. [Clay's Dig. 226, § 27.] Having appeared and
delivered his vouchers, he is affected with notice of all the sub-
sequent proceedings.
ORMOND, J. — We consider the true construction of the
will to be, that the mother and the two sisters, took each one-
third part of the estate. The language is, "shall be equally di-
vided between my mother and my two sisters, Harriet and Ma-
ry." If the term equally had been omitted, there might have
been some plausibility in the argument, that it was intended to
create two classes of beneficiaries. In a subsequent clause of
the will, the same idea is conveyed, in language admitting of no
doubt, where it is said, " My mother and sisters above named,
JANUARY TERM, 1845. 31
Duffee, Adm'r, v. Buchanan and Wife.
shall receive the amount of a debt due me," &c. The plain
import of the will is, that his mother and sisters were to be
equally interested in his estate, and it would be doing great in-
justice, to change this natural interpretation of the whole will,
by a criticism upon a particular word, especially in a case where
the will being nuncupative, was reduced to writing after the
testator's death. In such a case, we must give effect to what
appears to have been the prevailing idea, in the testator's mind.
In respect to the note due by the administrator, to the deceas-
ed, there can be no doubt, he was properly chargeable with it
as money. It was assets in his hands for collection and distri-
bution, and as he could not sue himself, it was properly consid-
ered as cash in his hands. [Childress v. Childress, 3 Ala. Rep.
754.]
The note due by McGuire, stands upon a different footing.
As a general rule, executors and administrators are not charge-
able with notes remaining in their hands as money ; though cer-
tainly they may subject themselves to account for them, as as-
sets, upon proof of neglect or mismanasrement. [Douthitt, Ad-
ministrator, v. Douthitt, 1 Ala. Rep. 597.] In this case, the
administrator having had possession of the estate for about ten
years, appears in obedience to the citation, and submits an ac-
count for final settlement ; upon the final settlement, the Court,
"upon the proof adduced," being satisfied that he was correctly
chargeable with the amount of the note due from McGuire, de-
crees against him. If there was no evidence authorizing this
decree, it should have been shown by an exception. In the
absence of any objection, we must presume, either that it was
shown that the money had been collected, or that it was lost
by the neglect of the administrator, who was entitled to its cus-
tody, and upon whom the law devolved the duty of collecting
it. The record, it is true, does not show, that the administrator
was present when the final settlement was made, nor is it im-
portant whether he attended or not. He is one of the parties
in the cause, and having appeared in obedience to the citation,
is affected with notice of all the ulterior proceedings, of which,
indeed, the record states due notice was given.
We are unable to perceive any error in the decree of the
Court, and it is therefore afl[irmed.
32 ALABAMA.
Fitzpatrick's Adm'r, v. Harria.
FITZPATRICK'S ADM'R v. HARRIS.
1. Where the vendee of land pays to the vendor the purchase money, or a
part of it, and receives of the latter a deed of conveyance, the deed, in a
controversy between the parties, is admissible to show the amount of the
purchase money.
2. Where a party presents an account to his debtor, in which are stated botli
debUs and credits, he shall not claun tlie benefit of the former without sub-
mitting to the latter also.
Writ of Error to the Orphans' Court of Montgomery.
This was a proceeding before the Orphans' Court, for the
settlement of the estate of Joseph Fitzpatrick, deceased, which
had been reported insolvent by the plaintiff in error, its admin-
istrator. The defendant in error, as a creditor of that estate,
preferred a claim against the same, the correctness of which,
and the amount thereof, were submitted to a jury for decision.
On the trial of the issue, the plaintiff in error excepted to the
ruling of the Court. From the bill of exceptions it appears,
that the creditor introduced a witness, who stated that he was
present at a sale of land made by George Whitman to the in-
testate and the creditor, that he saw some money paid by the
latter, but could not say how much ; he saw'nothing paid by
the intestate, nor could he say what was the amount of the pur-
chase money of the land. Witness was requested to attest the
execution of the deed of conveyance from Whitman to the in-
testate and creditor, and saw it delivered to them, as both were
present, and believes the deed exhibited at the trial to be the
same. Thereupon the creditor offered to read to the jury, the
recital in the deed which acknowledged the receipt, by the
grantor, of four hundred dollars, in order to show the amount
actually paid by the creditor for the land. To this the defend-
ant objected, but the objection was overruled, and the testimo-
ny read to the jury.
The creditor then exhibited an account marked A, and offer-
ed evidence tending to prove some of its items, but adduced no
proof of its presentment, either to the administrator, or to the
JANUARY TERM, 1845. 83
Fitzpatrick's Adm'r v. Harris.
clerk of the Orphans' Court. The creditor then read to the jury,
an account marked B, and proved that he presented the same
to the administrator, in February, 1842, but offered no evidence
of its correctness, and stated that he did not seek to recover
thereon ; that it was intended, in connection with other evi-
dence, to show that the items charged in the account A, had
been presented to the administrator, within eighteen months from
the grant of letters of administration. Upon the introduction of
the account B, the administrator informed the creditor, that he
should claim the credits therein stated. The debits in A, were
$6,549 22, and the credits $1,570; the debits in B, were $9,827
74, and the credits $2,810 32. The items of which A was
made up were all embraced by B.
The administrator prayed the Court to charge the jury, that
as the creditor offered in evidence the accounts A and B, his
disavowal of a wish to recover on the latter, and declaration,
that in connection with other proof, it was intended to show a
presentment of the demands stated in the former, to the admin-
istrator, did not prevent the administrator from availing him-
self of the credits stated in B; and further, the creditor cannot
claim the debits shown therein. This charge the Court refused
to give, and charged the jury, that if the administrator sought
to avail himself of the credits in the latter account, then the
same would be evidence both as to charges and credits.
The jury returned a verdict for the creditor, for five thousand
two hundred and one 36-100 dollars, and a judgment was ren-
dej'ed that he recover his pro rata dividend thereof, when the
same shall be ascertained by the Court.
A. Martin, for plaintiff in error, made these points: 1. The
deed from Whitman to Fitzpatrick and Harris, was admissible
to aid the latter to fix a charge upon the estate of the former.
[Saunders v. Hendrix, 5 Ala. Rep. 227.] 2. The administra-
tor might avail himself of the credits in account B, without sub-
jecting the intestate's estate to the charges made therein
against it.
I. W. Hayne, for the defendant in error, argued, that the pay-
ment of the money by Harris, when the intestate was present,
the delivery of the deed to both of them, &c. made the recital
5
34 ALABAMA.
Fitzpatricks Adm'r v. Harris.
as to the price paid for the land, evidence of that fact. But if
it had been improperly received, then he proposed to abate from
the recovery in the Orphans' Court, the amount of this item in
Harris' account. He insisted that the principle was well set-
tled, that the debtor cannot avail himself of the credits stated in
the account of his creditor, without admitting the charges
against him as evidence.
COLLIER, C. J.— la Saunders v. Hendrix, 5, Ala. Rep. 224,
it was held, that an acknowledgement in a deed, of the amount
paid as the consideration of the conveyance of land, was in le-
gal effect a mere receipt, and as much open to explanation as
if indorsed on the back of the deed. So in Mead v. Steger, 5
Porter's Rep. 498, we determined, that where a monied conside-
ration is expressed in a deed, it is allowable to show the con-
sideration to have been greater or less than that stated ; for the
reason that it is not usual to state it with precision. The prin-
ciple deducible from these cases, does not deny the admissibili-
ty of a deed, to show the consideration paid by the grantor to
the grantee, it merely affirms its inconclusiveness as evidence.
That it would be competent in the present case, as against
Whitman, to show the amount which the purchasers paid him,
if an action were brought for breach of warranty, we appre-
hend would not be disputed ; although it would be allowable for
the vendor to prove that it did not recite the consideration tru-
ly. And we think it good evidence against the vendees, not
only in favor of the vendor, but as between themselves, upon
the ground that they were both present when it was executed,
and received it, without any objection to the correctness. This
conclusion, we think, results from the familiar rule, that silence
on the part of one, when a fact is affirmed, which is calculated
to elicit a denial, if untrue, shall be construed into an implied and
virtual admission. [Batturs v. Sellers, 5 H.& Johns. Rep. 119;
Coe V. Hutton, 1 Sergt. &; R. Rep. 398 ; Hendrickson, Adm'r,
V. Miller, 1 Const. Rep. 296; Vincent v. Huff's lessee, 8 Sergt.
&R. Rep. 381 ; Wells v. Drayton, 1 Const. Ct. Rep. 111.]
See the cases collected on this point in Cowan &, Hill's Notes
to Phillips' Evidence, 2 vol., 191 to 199, 213.
We place our conclusion on this point upon the ground, that
the vendor and vendees were all present when the money was
JANUARY TERM, 1845. 35
Chandler and Moore v. Lyon, et al.
paid and the deed delivered, and the fair inference is, that it
was read to, or by them all, so that all were informed of its con-
tents, and if untrue in any recital, would most probably have so
stated. This doctrine as to implied or virtual admissions, we
are aware, has been denied with regard to statements in writ-
ing, other than accounts ; that is, where those statements are
not subjects of conversation between the parties, or not deliver-
ed in person, but are sent from one to the other at a distance.
[2 C & H.'s Notes, 2 Phil. Ev. 195.]
In respect to the refusal to instruct the jury as prayed, as also
in the charge given, we think the Court ruled correctly. It is
a rule of unquestionable authority, that where a party presents
an account to his debtor, in which are stated both debits and
credits, the latter shall not claim the benefit of the credits, with-
out also submitting to the debits. The Court merely affirmed
such to be the law. [2 C. «fe H.'s Notes to Phil. Ev. 227 to
230.]
The order of the Orphans' Court is therefore affirmed.
CHANDLER AND MOORE v. LYON et al.
, C. borrowed the bills of an unchartered banking company, from one L. as-
smning to act as its President, and gave his note for the same amount, paya-
ble at a future day, with M. as his siuety. The bills received, were the bills
of the company, and made payable to S. Jones, or bearer, but not assigned.
The note given was payable ninety days after date, to L., or order. After
the note became due, C. procured other bUls of the company, and went to
the place where it transacted business, but found no one there to receive
payment, or give up the note. The company was composed of L. and S.
chiefly, and if of others, they are unknown. L. and S. both absconded from
the State soon after, and are entirely insolvent Afterwards, suit was com-
menced, in tlie name of the administrator of L., for the use of one MiUer,
against C. and M., who being unable to succeed in making any defence at
law, a judgment was recovered. Afterwards, an execution upon it was
levied on the property of M., in common with other executions, and his pro-
perty sold. A case was made between the several plaintifis in execution,
36 ALABAMA.
Chandler and Moore, v. Lyon, et al.
andtlie sherifF selling tlie property, to determine tlie priority oftlie execu-
tions, and such proceedings had, that tlie administrator of L. recovered a
judgment for the use of Miller, against the sherifF and his sureties. C. filed
his bill, setting out these facts, insisting that the company was contrived
and set on foot to defraud the public — that the death of L. was merely simu-
lated, to enable the other parties to carry their fraudulent plans into effect ;
that the note yet remained the property of the company, and that in equity
he was entitled to set off the notes held by him, and to enjoin the collec-
tion of the judgment against the sheriff, as C. would have to reimburse M.
if that was paid. The defendants demurred to the bill, for want of equity,
and this demurrer being overruled, admitted all the facts stated to be true,
if they were well pleaded : Held —
1. That suit being in the name of the administrator of L., the notes held by C.
against the company, were not legal off sets, and that on this ground tliere
was relief in equity.
2. That the circumstance that the notes were held by C. when the judgment
was obtained, or suit brought against C. and M. did not take away the equity,
as M. was a surety only.
3. That C. being entitled to his relief against the parties to the judgment at
law, it extended also to defeat the recovery against the sheriff, as without
this, the relief would be of no avail.
4. If the original transaction between C. and the company was illegal, it does
not defeat C.'s right to set off the other bills aflerwards procured by him.
5. [Upon the petition for re-hearing.] That although C. might have defeated
the suit at law, by pleading that L. was yet alive, or by showing that the
suit was collusive, and that the interest in the note sued on then belonged to
the company, yet his omission to do so, was no bar to relief in equity. The
suit being in tlie name of the administrator of L., C. is entitled so to consider
it, and it is no answer to the complainants to say, that by showing another
state of facts, he could have had relief at law.
Writ of Error to the Court of Chancery for the fourth dis-
trict of the Northern Division.
The case made by the bill, after divesting it of extraneous
matter, is this :
Chandler, in November, 1838, was desirous to borrow some
money, and was ignorant that unchartered associations were
prohibited from issuing notes, to circulate as money. He, in
that month, applied to the Wetumpka Trading Company, an
unincorporated association, transacting business at Wetumpka;
through one Isaac Lyon, as their President and agent, and re-
ceived from him six hundred dollars in post notes of the said
JANUARY TERM, 1845. 37
Chandler and Moore v. Lyon, et al.
company, payable at ninety days. These notes were in the
form of bank bills, of various denominations, and intended to
circulate as money. For these. Chandler, with Moore as his
security, gave his note for six hundred dollars, payable at the
ojflice of the said company, to the order of Lyon, sixty days af-
ter date. The note, although payable to Lyon, was a transac-
tion with the company. Chandler made a payment of one
hundred and eighty-two dollars on this note, in October of the
same year, and afterwards provided himself with notes of the
said company, to discharge the remainder, but when he came
to the office of the company, Lyon refused to be seen, and ab-
sconded the next day. The notes held by Chandler were pay-
able to S. Jones, or bearer. The company was set on foot for
the purpose of defrauding the public, and was solely owned and
controlled by Lyon, or by others who are entirely insolvent.
Lyon caused a report to be spread of his death, for the purpose
oi^avoiding pursuit and detection. Previous to his flight, he
abandoned the papers belonging to the company, and among
them the note above described, as valueless. Suit was soon
after commenced on the note, in the name of W. J. Campbell,
as administrator of said Lyon, for the use of one Jonathan Mil-
ler, who is the father-in-law of Lyon, and lends his own name
for the purpose of the suit, but has no interest in it, as the mo-
ney, if collected, is to be divided among the aiders and abettors
of the Wetumpka Trading Company; but these persons are un-
known to the complainants. Lyon and one Smith, the only
two persons known to be liable as members of said company,
are entirely insolvent, and reside out of the limits of the State,
in parts unknown. Although the suit is instituted on the note
in the name of Campbell, for the use of Miller, the interest in it
is yet in the Wetumpka Trading Company, or in Lyon, as its
owner. That the notes on that company held by Chandler, are
due him in the same right. Judgment was rendered in the suit
above described, the complainants asserting they were unable
to make any defence to it, by way of set off, by reason of the
difficulty of identifying and proving the notes, and because
'prima facie they were not due in the same right.
Execution having issued, was levied by Spencer, as sherifT,
on the property of Moore, and he having several executions
against that person, questions of priority of satisfaction arose
38 ALABAMA.
Chandler and Moore v. Lyon, et al.
between the several plaintiffs, which resulted in Campbell, for
the use of Miller, obtaining a judgment against Spencer, for
not paying over the money collected, or which should have
been collected, from the property of Moore, Chandler insists,
that if Spencer pays this judgment, Moore will have a claim
against him, (Chandler,) for so much money paid on account of
the note. The bill prays that Campbell and Miller may be en-
joined from proceeding against Spencer or the complainants »
that the notes held by Chandler may be set off" against the judg-
ment obtained by Campbell, as administrator of Lyon, for the
use of Miller, and for such other relief as may be necessary.
The defendants demurred to the bill, and set out the following
grounds of demurrer:
1. Because no equity is shown, to entitle the complainant to
the discovery and relief sought.
2. There is no sufficient excuse shown why the defence was
not made at law ; and because it could have been so made. •
3. Chandler has no right to control the judgment against
Spencer; neither has Chandler and Moore.
4. On the face of the bill, it is shown that the judgment against
Chandler and Moore is satisfied.
5. The bill is multifarious.
The Chancellor overruled the demurrer, and then it was
agreed between the parties, that all the facts well pleaded
should be taken as true. A final decree was therefore render-
ed for the complainants, the form of which is not called in ques-
tion here.
The defendants assign as error that the Conrt should not
have overruled their demurrer, but should have dismissed the
bill.
J. W. Pryor and W. W. Morris, for the plaintiff" in error,
argued —
1. The bill sets out an illegal contract, in which the com-
plainant, Chandler, participated, In such a condition of parties
the defendants have the best of it. [Monk v. Abell, 3 B. & P.
35 ; United States v. Owens, 2 Peters, 527.]
2. The complainants cannot come into equity for a new trial
upon any of the matters of fraud alledged in the bill ; and if this
fraud extended to the manner of executing the notes of the
JANUARY TERM, 1845. . 39
Chandler and Moore v. Lyon, et •bL
company, so as to give Chandler no right of action in his own
name on them, that point must be concluded also.
3. Whatever may be the apparent equities of the parties, it
is clear Chandler has sustained no injury ; the judgment against
him is satisfied, and it may be that Moore will never call on him
to refund.
4. If this is a proceeding by Chandler, to secure a debt due
him from the Wetumpka Trading Co., it will not be permitted
in equity, until he has exhausted his remedies at law. [Wig-
gins V. Armstrong, 2 John. Ch. 144 ; 1 Vern. 399.]
5. The judgment of the Court determining the priority of
the liens of the several plaintiffs in execution, and declaring
Spencer liable to Campbell, for the use of Miller, is a judgment
in rem, and binding on every one, whether before the Court or
not. [Gelstonv. Hoyt, 13 John. 139.]
6. The very circumstance that this money, under the decree,
may never be refunded to Moore, and that it may be appropri-
ated to other executions,is almost conclusive to show that there
is no equity as against Miller.
7. There is no connection between the demand on which
judgment was obtained, and those sought to be setoff, and it is
apprehended that no case can be found where a demand, col-
lectable at law, unconnected with a trust or other exclusive
matter of equitable cognizance, can be enforced until a judg-
ment at law is obtained.
8. The case of Schiefelin v Noxubee Co. recently decided by
this Court, shows that Chandler had a complete remedy at law,
and might have used the notes held by him as a set off.
W. P. Chilton and Bowden, contra, contended —
1. That the bills held by Chandler could not have been used
by him, in the trial at law, as a set off, however much they
might have conduced to prove a fraud. [French v. Garner, 7
Porter, 549.]
2. If they could have been so used, the insolvency and non-
residence of Lyon, is a sufficient reason to let in the equitable
jurisdiction. [Pharr v. Reynolds, 3 Ala. Rep. 523.]
3. Chandler, as a creditor, might pursue the demand in pro-
gress of collection, because he has no legal remedy in such a
case ; but the bill is not framed for that purpose. Chandler and
40 . ALABAMA.
Chandler and Moore v. Lyon, et al.
Moore seek to have the debt paid, by setting off one due in
equity, and not at law, to Chandler. Chandler could not sue
in his own nanfie on the bills held by him, and therefore could
not set them off. It makes no difference whatever, how near
the defendant, Lyon, has accomplished his intention, a Court of
equity can stop him at every point. [Treble v. Lane, 7 Mon-
roe, 455 ; Montague, 61 ; 19 Vin. Ab. 4G9 ; Ex parte Blagden,
3 Bibb, 255; Hughes v. McConnell, 1 Bibb, 256; Dale v. Sal-
let, 4 Burr. 2133; Green V. Farmer, 4 Burr. 2221; Jamesv. Kyn-
nier, 5 Vesey, 110 ; Payne v. Lodcn, 1 Bibb, 518 ; Barclay v.
Hart, 4 Burr. 1996; Talbot v. Warfield,2 J. J. Marsh, 86;
Talbot V. Banks, 2 J. J. Marsh. 548 ; Stewart v. Chamberlin, 6
Dana, 32; Merrel v. Fowler, 6 Dana, 305; Watkins v. Cham-
berlin, 8 Dana, 164 ; 6 lb. 224 ; 14 John. 53 : Chance v. Isaacs,
5 Paige, 592 ; Robbins v. Holly, 1 Monroe. 194.]
GOLDTHWAITE, J.— 1. The matters of fraud with re-
spect to the transactions of the Wetumpka Trading Company,
and the simulated death of Lyon, are so prominently set forth
in the bill, that our first impression was, that these were the sole
grounds on which relief was sought; but a more caerful ex-
amination has satisfied us, as it did the Chancellor, that the com-
plainants are entitled to relief on the ground of set oflf. It suffi-
ciently appears, from the bill and exhibits, that at the time
Campbell, as the administrator of Lyon, commenced his suit
against Moore and Chandler, the latter was the holder and
owner of notes of the Wetumpka Trading Company, of which
Lyon was a partner, if not the only individual composing it.
The bills held by Chandler are payable to S. Jones, or bearer,
and do not appear to have been assigned or indorsed by him.
Now, whether Lyon was a partner, or the only member of this
concern, it is evident he could not have been sued by Chandler
in his own name. Consequently he could not have set oflf the
bills to the suit against him and Moore, even if Lyon was the
only person liable ; but if he was a partner only, the liability of
his personal representative was yet more remote. The same
observations will apply to a defence of set off, made upon show-
ing that the suit, though in the name of Lyon, was in fact for
the benefit of the Wetumpka Trading Company. Chandler
could not have sued them in his own name, and therefore under
JANUARY TERM, 1845. 41
Chandler and Moore v. Lyon, et al.
repeated decisions of this Court, could not have given the bills
in evidence as a set off. [French v. Garner, 7 Porter, 549,]
2. It is a matter of no importance to the investigation of this
suit, whether Lyon is dead or living, or whether the one or the
other of the complainants are entitled to the relief. It is true»
there is no mutuality in the debt reduced to judgment, under the
statute of set off, but the decision recently made of Winston v.
Metcalf, 6 Ala. Rep. 750, shows that a debt due to the princi-
pal debtor may be discounted when the surety is sued; and of
course the same rule applies, where both are joined in the
action.
3. The circumstance that such proceedings have been had,
that a judgment has been obtained against the sheriff, by the
administrator of Lyon, although it involves the case, and ren-
ders it more complex, does not stand in the way of relief, as that
judgment is not in the nature of a penalty. It is only one
mode which the law allows to a party to get at money which
he is entitled to, but it gives him no right whatever to enforce
that to which he has no claim in good conscience.
4. With respect to the objection, that Chandler is a parti-
ceps criminis in the illegal transaction of circulating the bills of
the company, it is sufficient to say, that however that may be
as to the bills received for the original loan, it does not appear
to be so with respect to those which he afterwards obtained
for the purpose of making payment. The question, therefore,
is a fact not raised, to which our attention is called by the de-
fendants' counsel.
The form of the decree is not called in question by the errors
assigned, and therefore the judgment here must be one of af-
firmance generally, and with costs.
At a subsequent day of the term, Mr. Pryor, for the plaintiff
in error, submitted a motion to re-hear this cause ; and called
the attention of the Court to the decree made in the Kemper
and Noxubee Co. v. Scheffelin, 5 Ala. Rep. 492.
GOLDTHWAITE, J.— It is certain the case referred to by
the plaintiffs, was overlooked by me when the opinion was
written, nor did I at that time know of its existence. I may
now be permitted to 8ay, that I very fully accord with the prin-
ciples there settled ; but though this decision shows that the
42 ALABAMA.
Chandler and Moore v. Lyon, et al.
complainant, Chandler, might have cither sued the company in
his own name, or have asserted his set off against the suit by
the administrator of Lyon, upon show^ing that the suit, though
in this right, was in truth the suit of the company, yet he was
not bound to do so.
It is true, he asserts in his bill, that the suit against him in the
name of Lyon's administrator was collusive, and that the in-
terest in it remained in the Trading Company, but this is only
one of the aspects of the case in which he is entitled to relief.
The defence which he could have thus interposed to the suit at
law, by going behind it, and showing that the bringing it in that
name, was a fraud upon him, is a privilege which the law ac-
cords to him, but which involves no consequences, if he omits
to make it in that manner.
The argument amounts to this : the complainant kne wthe suit
was a fraudulent and collusive one, and could have defeated it in
that aspect; and because he omitted to do so, he ought to be depriv-
ed of his right to defend the suit, in the aspect inwhich it was fraud-
ulently presented. We cannot yield our assent to this proposi-
tion. The administrator of Lyon brings the suit, and in that par-
ticular aspect the notes for which Lyon, in his lifetime, was joint-
ly responsible, cannot be interposed as a set off, because the right
of set off, does not exist at law, under such circumstances. The
debt is gone against his representatives at law, except under pe-
culiar circumstances, and in no condition of which could the
liability sub modo, be asserted as a set off. It is stated in the
bill, that Lyon and one Smith were the only partners of the
company, known to the complainants, and that both were in-
solvent, as well as having absconded. Under this State of
facts, a clear and well ftcognized equity existed, for Chandler
to set off the notes held by him, against the judgment recovered
by Lyon's administrator. This is one of the grounds for relief
asserted by the bill, and meets the suit at law, as those interest-
ed in it have chosen to present it, and, in our judgment, it is no
answer to the complainants to say, that if another State of facts
asserted by them, is true; they could have had relief at law. It
may be that they could, but as before stated, that privilege is
accorded to those showing that the plaintiff is a simulated per-
son, but they are not bound to do so. Motion denied.
JANUARY TERM, 1845. 43
Martin, Adm'r, v. Hill.
MARTIN, ADM'R, v. HILL.
1. Where a joint obligation would survive upon the death of one of the obli-
gors, against his heirs and personal representatives, a judgment founded
it, will also survive against them, upon the death of one of the parties to
the judgment
2. When a party to a suit in this Court dies, pending the suit, and it is abat-
ed as to him, it becomes several as to him, and is not merged in the judg-
ment of this Court, against the other parties to the judgment, and their
sureties.
En'or to the Circuit Court of Montgomery.
This was a proceeding upon the settlement of the estate of
Joseph Fitzpatrick.
The defendant in error presented a claim against the estate,
consisting of a judgment obtained by him in the Circuit Court of
Macon, against the plaintiff's intestate, and others. For answer
to this demand, the defendant pleaded, that the judgment afore-
said, was by the defendant thereto, taken to the Supreme Court,
and bond given to supersede the execution. That whilst the
suit was pending in the Supreme Court, the death of his intestate
was suggested, and by the judgment of the Court, the suit wag
abated as to him, and judgment rendered against the other de-
fendants to the judgment. To this plea, the claimant demuiTed,
and the Court sustained the demurrer, and rendered judgment,
from which this writ is prosecuted. The error assigned, is the
sustaining the demurrer to the plea.
A. Martin, for plakitiff in error, cited 4 Ala. Rep. 9 ; 6 id.
422.
Harris, contra, cited 2 Saunders, lOL
ORMOND, J. — We think this case is within the equity of
the statute, providing that joint obligations shall survive against
the representatives of the deceased obligors. [Clay's Dig. 323.]
Judgments are not, it is true, specifically mentioned in the stat-
ute, but as the obligation itself would have survived, the judgment
founded upon it must have the same attribute.
44 ALABAMA.
Kent V. Long.
The principal reliance of the plaintiff in error, is upon the sup-
posed merger of the judgment of the inferior Court, by the
affirmance of that judgment in this Court, against the other
defendants and their surety, as was held in Wiswall v. Munroe,
4 Alabama Reports, 9. By the death of Joseph Fitzpatrick, the
original judgment, by the operation of the statute above referred
to, became several, and might be revived against his representa
tives ; and if not revived, became a debt due from them to the
plaintiff, upon which a suit might be brought. The prosecution
of this claim in the Orphans' Court, is, in effect, the institution of
a suit upon the judgment, which, we have seen, is maintainable.
The merger of the judgment against the surviving defendants,
has no influence whatever upon this question, as, by the death of
Joseph Fitzpatrick, the judgment, as to him became several.
Let the judgment be affirmed.
KENT V. LONG.
, The plaintiff, defendant and B. were joint sureties for Brown, in a bond
executed pursuant to the statute, by the defendant, in an action of detinue ;
previous to the termination of the suit, the plaintiff endeavored to obtain
possession of the property in controversy ; this was resisted by the defend-
ant, who was in possession of the same — saying he would keep it until the
trial, and be responsible for its forthcoming. But instead of so doing, he
delivered the property to the defendant in the action of detinue, who re-
moved it without the State ; by reason of which the plaintiff was put to
great trouble and expense, and sustained damages, &c.: Held, that a de-
claration framed upon these facts, in case, was good on general demurrer.
. A demurrer to a declaration containing several counts, will not be sus-
tained, if either of them is good, unless there is a misjoinder of counts; in
that case, it will be sustained, without reference to the sufficiency of the
counts when detached from each other.
, If " the declaration contains a substantial cause of action, and a material
issue be tried thereon," the act of 1824 declares, that the cause will not be
reversed, arrested, or otherwise set aside, after verdict, or judgment," for a
defect in " the pleadings not previously objected to ;" consequently, an ap-
JANUARY TERM, 1845. 45
Kent V. Long.
pellate Court will not regard the defects of a declaration, if a demurrer
has not been directly interposed, or the attention of the primary Court cal-
led to it, upon a demurrer to some other part of the pleadings ; and in the
latter case, the record should show such to have been the fact.
Writ of Error to the Circuit Court of Butler.
This was an action at the suit of the defendant in error, against
the plaintiff in error. The declaration contains several counts,
the first of which is in case, and all edges that the plaintiff, de-
fendant, and one Brown, were the sureties of William Burke, in a
bond for the forthcoming of a slave, named John ; which bond
was such as the statute requires to be executed by a defendant in
the action of detinue. The action in which the bond was given
was brought by Daniel S. E. Starr, against Burke, for the recov-
ery of the slave, and previous to its termination, the plaintiff be-
low became uneasy on account of his suretyship, and tried to take
possession of John, and deliver him to the sheriff of Butler, in
discharge of his bond. This the defendant refused to permit the
plaintiff to do, as he had the slave in possession, saying he would
keep him until the trial, and be responsible for his forthcoming.
But instead of so doing, he delivered him to Burke, who removed
the slave without the State, by reason of which, &c., the plaintiff
was put to a great expense, &;c., and hath sustained damage, «fec.
The common counts in assumpsit are also added.
The defendant pleaded in short non assumpsit, and a former
recovery ; on the first of which the plaintiff took issue, and to the
second replied. The judgment entry recites that the defendant
demurred to the replication to the plea of former recovery, that
his demurrer was overruled, and the issues were submitted to a
jury, who returned a verdict in favor of the plaintiff for two hun-
dred and fifteen 50-100 dollars, and judgment rendered accord-
ingly. Subsequent to the rendition of the judgment, the follow-
ing entry was made, viz : « This day came the defendant, by his
attorney, and moved in arrest of judgment, on the ground of a
misjoinder of actions, which motion being heard and overruled
by the Court — the Court having charged the jury in this case be-
fore they retired, no recovery could be had under the testimony,
by the plaintiff, under the two last counts in the declaration."
G. W. Gayle, with whom was WATTS,for the plaintiffin error,
made the following points: 1. There is a misjoinder of actions
46 ALABAMA.
Kent V. Long.
in the declaration ; the first count is in case, and in the second
arc embraced the common counts in assumpsit ; and the objec-
tion is available, either on demurrer, in arrest of judgment, or on
error. [1 Chitty's Plead. 208; White v. Kornegay, at the last
term.] 2. The verdict is general on a misjoinder of counts, and
the first count is bad.
T. J. Judge, for the defendant in error. Case is clearly an
appropriate remedy for the cause stated in the first count ; the
defendant shared in the proceeds of the slave when he was sold,
and by his neglect he was run ofT, and should therefore contri-
bute to the compensation of the plaintifTfor loss of time, trouble
and expense, in hunting up and bringing back the slave. As to
the misjoinder of counts, that was cured by the instruction of the
Judge to the jury, which was equivalent to a nolle prosequi of
the common counts. Although non assumpsit is not the gene-
ral issue in case, yet it will be considered good after verdict.
COLLIER, C. J. — The defendant, by his refusal to permit the
plaintiff to take possession of the slave, and deliver him up in dis-
charge of the suretyship, previous to the determination of the
suit of Starr against Burke, and instead thereof allowing the lat-
ter to take him into possession, furnished an opportunity for his
removal. These facts are alledged in the declaration, and in
addition, it is stated that the plaintiff, at the expense of much time,
trouble and money, recovered the slave ; that he had been sold,
and the proceeds, pro tanto, applied to the discharge of the judg-
ment against Burke, for which the defendant, plaintiff and their
CO- security. Brown, were liable ; that, that judgment was not
thereby extinguished ; besides this, the defendant had not con-
tributed any thing to defray the expense and charges consequent
upon the recovery of the slave. Assuming the facts stated to
be true, as we are bound to do, and we think they show that the
plaintiff has been injured by the improper conduct of the defend-
ant, and that the latter has actually received a benefit by the
plaintiff's industry, and expenditure of money. These grounds
certainly furnish a good cause of action, which may be made
available in the form adopted by the plaintiff. This we intimat-
ed when this case was here at a previous term, but in a different
form, Long v. Kent, 6 Ala. Rep. 100.
JANUARY TERM, 1845. 47
Kent V. Long,
We have repeatedly held that a general demurrer to an entire
declaration cannot be sustained if there be one good count, but if
there be a misjoinder of actions, without reference to the suffi-
ciency of the counts in themselves, the defendant is entitled to
judgment. [Chandler v. Holloway, 4 Porter's Rep. 17.] This
is the rule, where the objection for misjoinder is made on demur-
rer, and at commen law, perhaps, a motion in arrest of judgment,
or a writ of error would lie, where the plaintiff had thus united
distinct actions. But the act of 1824, "to regulate pleadings at
common law," (Clay's Dig. 322, § 53,) cures many defects in
pleadings. The first section enacts, " that no cause shall be re-
versed, arrested, or otherwise set aside, after verdict or judgment,
for any matter on the face of the pleadings not previously object-
ed to ; Provided, the declaration contains a substantial cause of
action, and a material issue be tried thereon." We have always
given to this statute a liberal interpretation in advancement of the
object contemplated by the legislature. It is clear that the decla-
ration contains a substantial cause of action, whether we consid-
er cither count, although they are improperly united. And the
record shows that a material issue was tried thereon. The plea
of non assumpsit may, after verdict, be regarded a denial of the
entire declaration, though inappropriate to an action on the case ;
for it has been frequently held, that « not guilty," will sustain a
verdict for the plaintifT, in an action of debt.
As, then, the defendant did not object to the declaration previ-
ous to the trial, its defects were cured by the act of 1824. Al-
though there was a demurrer to the replication to the plea of for-
mer recovery, which it would, perhaps, have been competent for
the Circuit Court to have visited upon the declaration, yet we
think the act cited, requires that the objection should have been
distinctly made by a demurrer to the declaration, or that it should
have been pointed out orally, by the defendant, in urging his de-
murrer to the replication. The intention and spirit of the enact-
ment cannot be carried out by any other construction ; and where
it is proposed to take advantage of any defect in the preceding
pleadings of the parties, the record should show that it was in-
sisted on in the primary Court.
The judgment must therefore be affirmed.
48 ALABAMA.
Wall V. Williamson.
WALL V. WILLIAMSON.
1. A marriage between two Indians, belonging to the Choctaw tribe, entered
into according to the laws and customs of that tribe, at a place Avhere such
laws and customs were in force, is recognized as a valid marriage, by the
laws of Alabama, the laws of Alabuma having been extended over the ter-
ritory where the parties so married resided. An exception to the general
rule, that a valid marriage is so every where, is said to obtain with respect
to incestuous or polygamous marriages, when asserted in the Courts of a
Christian State ; but however this may be, it cannot obtain with respect to
the wife of a Choctaw Indian, unless it is shown there was a previous
marriage.
2. The laws and customs of the Choctaws were not abrogated, so far as mem-
bers of the tribe were affected, by the extension of the jurisdiction of the
State over the country occupied by them. It is only by positive enact-
ments, even in the case of conquered or subdued nations, tliat their laws
are changed by the conqueror, but there is no merger, until one tribe or
nation is swallowed up, or lost in another, by the efflux of time.
3. When, by the laws of an Indian tribe, the husband takes no part of his
wife's property, it is a nocessary consequence, that the wife retains the ca
pacity to contract, and it is likely, means were provided by their laws for
the enforcement But if such was the case, it is not perceived how the
wife could, in our Courts of law, be sued alone, so long as the marriage
continued, as the case presented would be that of a wife with a separate
estate.
4. When, by the law of an Indian tribe, the husband has the capacity to dis-
solve the marriage at pleasure, and his abandonment of his wife, he re-
maining within the jurisdiction of his tribe, is evidence that he has done
so, the effect of this dissolution of the marriage is the same as if direct-
ed by a la^v'ful decree.
Writ of error to the Circuit Court of Sumter.
Assumpsit, by Williamson, against the defendant, as the ma-
ker of a promissory note. At the trial, upon the general issue,
the defendant produced evidence tending to prove, that she and
one David Wall lived together, as man and wife, from the year
1831 until the year 1839, in the territory belonging to the Choc-
taw Indians, until that was annexed to, and made the county of
JANUARY TERM, 1845. 49
Wall V. Williamson.
Sumter; after which they lived in the same relation, in that
county, near the same place where they previously had resided,
and until the said David left the State of Alabama, in 1839, and
went to the Choctaw country, west of the Mississippi. Both
were of Indian extraction, and of the Choctaw tribe ; that they
were regarded as man and wife by the tribe, and as having been
properly married, according to the laws and customs of the
Choctaws. The defendant had said, that she had been advised
that she had not been legally married ; that she had been mar-
ried in the Choctaw territory, by one Pistole, a justice of the
peace from Marengo county. It was also in proof, that by the
laws and customs of the Choctaws, the husband, by his marriage,
takes no part of his wife's property ; that among them, a man
takes a wife at pleasure, and dissolves the marriage whenever
he pleases, and that the men are allowed a plurality of wives.
Upon this state of proof, the defendant requested the Court
to instruct the jury, that a marriage under the laws and cus-
toms of the Choctaws, entered into in a place where such laws
and customs are in force, is recognized as a valid marriage by
the laws of Alabama, when the same are extended over the ter-
ritory where the parties so married reside.
This was refused, and the Court charged the jury^— 1. That
the living together of an Indian man and woman would not be
regarded by the laws of this State, as such a marriage as would
affect a contract entered into by the female. 2. That if the
defendant was abandoned by Wall, and she executed the note
after he bad left her, that she would be bound by her contract,
although she might have been married. 3. That if, according
to the customs among the Choctaws, the parlies to a marriage
can dissolve it at pleasure, by mere separation, and that the de-
fendant and Wall did so separate, then the defendant was liable
on her contract, as a/ewe sole.
The defendant excepted to the refusal of the Court to give
the charge requested, as well as to those given, and error is as-
signed upon the bill of exceptions.
Hair, for the plaintiff" in error.
Smith, contra.
GOLDTHWAITE, J.— Previous to entering upon the con-
sideration of the questions raised, by the refusal to give the
7
50 ALABAMA.
Wall V. Williamson.
charge requested by the defendant, it is not improper to ascer-
tain what facts had to be ascertained by the jury, from the evi-
dence. The existence of a marriage between David Wall and
the defendant, at the time when the note sued on was given by
Mrs. Wall, was one of the principal matters to be passed upon.
Once established, to the satisfaction of the jury, as having been
entered into, in conformity with the usages of the Choctaw tribe
of Indians, its effect, in connection with the laws of this State,
became a very material subject of inquiry. The defendant in-
sisted then, and now, that if this marriage was valid, by the laws
and usages of the Choctaw tribe of Indians, it is recognized as
valid by the laws of Alabama. The validity of the marriage,
and not the consequences of it, as to the defendant, was, at that
time, the subject for instruction. If the marriage is not to be
recognized as valid by our law, it was of no consequence to
the defendant, what further charge was given, for or against
her, because her entire defence rested on sustaining that propo-
sition. All the testimony in relation to rights of husband and
wife, under the Choctaw law, may have been of a disputable or
doubtful nature. These observations are called for, because it
has been assumed that this charge was immaterial, and that all
the case is covered, by the charge actually given by the Court.
1. With respect to the refusal of this charge, it is not unlike-
ly that the Circuit Court intended to be understood, by the coun-
sel, that the charge was refused, not as an incorrect proposition,
but for the reason that the case was clear for the plaintiff, even
if it was conceded. If such was the impression of the Court,
the charge should have been given, with the necessary expla-
nation to direct the jury to the consideration of those points
deemed fo be more material. The general rule upon this sub-
ject is, that a marriage, valid at the place where contracted, is
deemed to be valid every where else. [Story Confl. of Laws,
77, §§ 79, 103, 113, a.] It is said by the same author, that the
most prominent, if not the only exceptions to this rule, are those
marriages, involving polygamy and incest. [lb. §113, a, 114.]
These, the learned author says, Christianity is understood to
prohibit, and therefore no Christian country would recognize
polygamous, or incestuous marriages. Lord Brougham, in
Warrender v. Warrender, (cited in a note to § 114, 9 Bligh.
112,) says, "it is important to observe, that we regard it, (mar-
JANUARY TERM, 1845. 61
Wall V. Williamson.
riage,) as a wholly diflerent lhing,a different status, from Turk-
ish or other marriages among infidel nations; because we clear-
ly never should recognize the plurality of wives, and consequent
validity of second marriages, standing the first, which second
marriages, the laws of those countries authorize and validate."
If this doctrine is to be understood as leading to the conclusion,
that a Court can collaterally inquire into the existence of such
a relationship, as would, in a direct proceeding, annul the mar-
riage, it is very questionable whether it is sustainable. [1 Black.
Com, 434.] A parallel case, to a Turkish, or other marriage in
an infidel country, will probably be found among all our savage
tribes, but can it be possible, that the children must be illegiti-
mate, if born of the second or other succeeding wife ? How-
ever the true rule may be, it is immaterial to this case, unless it
can be shown, that when the law tolerates polygamy, there can
be'neither lawful wife or legitimate children, for here, the evi-
dence does not disclose any previous marriage.
The validity of the marriage may possibly have been denied
upon the impression, that having been contracted within the ter-
ritorial limits of the State, it cannot be affected by Choctaw
usages or customs, though both parties were of that tribe, and
resident within its bounds.
2. The refusal cannot be sustained on this ground. Waiv-
ing the consideration of the peculiar relation which these Indian
tribes bear to the States, within the limits of which they were
resident, and assuming that the individuals composing *he tribes
could, by the States, have been made subject to their general
laws, the question yet remains, whether, at the time of this sup-
posed marriage, the laws and usages of the Choctaw tribe had
been abolished or superseded ; or, whether they composed a
distinct community, governed by their own chiefs and laws. It
is not pretended, that any statute producing this effect was then
passed, and therefore, if lost at all, their local laws must have
been lost, in consequence of their living within the territorial lim-
its of the States. It may be difiicult to ascertain the precise
period of time when one nation, or tribe, is swallowed up by an-
other, or ceases to exist; but until then, there can not be said to
be a merger. It is only by positive enactments, even in the case
of conquered and subdued nations, that their laws are changed
by the conqueror. The mere acquisition, whether by treaty or
52 ALABAMA.
Wall V. Williamson.
war, produces no such effect. It may therefore be considered,
that the usages and customs of the Choptaw tribe continued as
their law, and governed their people, at the time when this mar-
riage was had. The consequence is, that if valid by those cus-
toms, it is so recognized by our law.
For that error, in refusing thus to charge, the judgment must
be reversed, and the cause remanded.
3. But although this result is arrived at, it yet remains neces-
sary to ascertain what further instructions ought to have been,
or should be given. The evidence tended to show, that by the
Choctaw law, the husband takes no part of the wife's property.
A necessary consequence of this peculiarity is, that the wife
must have the capacity to contract, for otherwise she would be
incapable, in many instances, to preserve or protect her proper-
ty. The bill of exceptions is silent as to any positive law among
them, as to this point, but the inference is direct and immediate,
from what was proved. Having, by their law, the capacity to
contract, it is also likely that means were provided by it, for its
enforcement; but if that was the case, we do not see how she
could be sued, in a Court of law, so long as the marriage con-
tinued. It would present nothing, but the case of a wife with a
separate estate to her own use. It may be possible, that the
objection to the form of action could not be urged at the trial,
but it is unnecessary to consider this point further, because we
are clear, that the marriage was dissolved according to Choc-
taw usages, by the abandonment of the husband.
4. Whatever may have been the capacity of the husband to
abandon his wife, and thereby to dissolve the marriage, if both
had become residents of Alabama, after the tribe had departed
from its limits, it is very clear that the same effect must be giv-
en to a dissolution of the marriage, by the Choctaw law, as giv-
en to the marriage by the same law. By that law, it appears
the husband may at pleasure dissolve the relation. His aban-
donment is evidence that he has done so. We conceive the
same effect must be given to this act, as would be given to a
lawful decree in a civilized community, dissolving the marriage.
However strange it may appear, at this day, that a marriage
may thus easily be dissolved, the Choctaws are scarcely worse
than the Romans, who pern'itted a husband to dismiss his wife
for the most frivolous causes. [Story Confl. of Laws, 169.]
JANUARY TERM, 1845. 53
Palmer, use, &c. v. Severance and Stewart
The jury then, should have been instructed, that notwith-
standing the marriage, if contracted according to Choctaw usage,
between members of the tribe, in their own territory, before
their laws were abrogated, was valid, yet the wife had the ca-
pacity to contract, and in case of a valid contract, was liable to
be sued as a /erne sole, if the marriage could, by the Choctaw
law, be dissolved by the husband, at his pleasure, and was so
dissolved, which might be inferred, if the husband abandoned
his wife, and went with his tribe beyond the Mississippi, or else-
where.
Judgment reversed and remanded.
[Note. — This cause was decided at June Term, 1844, and should have
been published in the 6th or 7th volume of Reports.]
PALMER, USE, (fee. V. SEVERANCE AND STEWART.
1. When a defendant is offered as a witness, to prove usury, he cannot be
confined in his testimony to the instrument upon which the suit is brought,
but may prove other transactions connected with it ; as that o Jier notes ex-
isted, which have been cancelled, the consideration of which entered into,
and formed a part, of the note sued.
2. A promise by the maker, to an innocent holder of usurious paper, to pay
it, if indulgence is given, is binding on him, and may be enforced, if the
delay is given.
Error to the Circuit Court of Russell.
Assumpsit by the plaintiff, against the defendant in error, on
several promissory notes. The defence was, that the notes were
usurious.
The defendants being examined as witnesses, the plaintiff ob-
jected to their proving any thing but the rate of interest, but the
Court permitted them to prove the entire consideration, embrac-
ing payments made by them, before their notes were given, which
54 ALABAMA.
Palmer, use, &c. v. Severance and Stewart
were but the renewal of other notes, given for borrowed money,
to all which the plaintifFexcepted.
There being proof conducing to show, that the first note of de-
fendants, bought by plaintiff, was made for the purpose of obtain-
ing a usurious loan, the plaintiff's counsel moved the Court, to
charge, that if this note was purchased by plaintiff, without any
knowledge of the purpose for which it was made, and without in-
tent to violate the law against usury, plaintiff was entitled to re-
cover the amount of said note, which charge the Court refused to
give, and plaintiff excepted.
There was also proof conducing to shew, that one from whom
the beneficial plaintiff bought the notes, after obtaining them, cal-
led on the defendants for payment — that defendants had previ-
ously objected to paying, on account of the usury, but on this oc-
casion, told the holder of said notes, that if he would wait with
him until the end of year, he would pay the note, and legal inter-
est— that the holder did wait accordingly. Upon this proof,
the plaintiff asked the Court to charge, that if the defendant had
agreed with the nominal, or beneficial plaintiff, or the holder, from
whom the notes were bought, upon consideration of time given,
to pay the principal and legal interest, and time had accordingly
been given, the plaintiff was entitled to recover the principal and
legal interest ; which charge the Court refused to give, and the
plaintiff excepted. The jury found for the plaintiff one dollar, for
which the Court rendered judgment.
The errors assigned are, the matters of law arising out of the
bill of exceptions.
Heydenfeldt, for plaintiff in error, submitted the cause, and
cited Clay's Dig. 590 ; 3 Ala. Rep. 158 ; 2 Taunton, 184.
ORMOND, J. — When the defendant is offered as a witness,
under the statute to prove usury, he is competent to prove any
fact which tends to establish the usury. He cannot be confined
in his testimony, to the instrument upon which the suit is brought,
but may prove other transactions connected with it; as that other
notes existed, which have been cancelled, and the consideration
of which entered into, and formed a part of the note sued upon.
From the ambiguous manner in which the facts are stated in
the bill of exceptions, we are at some loss to know, what the
JANUARY TERM, 1845. 65
Hodffes V. The State.
point was, intended to be raised by the first charge. Presum-
ing the fact to be, that the plaintiff acquired the note without
knowledge of the usury, and that the defendants executed another
note in lieu of it, the case of Cameron and Johnson v. Nail, 3
Ala. Rep. 158, is an authority in point, to show, that the substitu-
ted note, would not be affected by the original usurious considera-
tion, but that the principal, and legal interest, might be recov-
ered.
So in regard to the facts upon which the last charge of the
Court is prayed. Understanding the bill of exceptions to state,
that the promise of the defendant to pay principal and interest, if
the holder would wait until the end of the year, was made to one
who had acquired the note, by purchase, or otherwise, and not
to the original payee, the delay would be a sufficient considera-
tion to entitle the holder to recover; as he might thereby lose his
recourse upon the person from whom he obtained the note.
Such a promise, made to the person with whom the usurious
contract was made, would not be binding on the promissor, as it
would be without consideration.
From the interpretation we put upon the bill of exceptions, the
Court erred in both the charges given to the jury, and its judg-
ment is therefore reversed and the cause remanded.
HODGES V. THE STATE.
1. It is competent for the clerk of a Circuit Court to issue a writ of error to
remove to this Court, a cause in which a final judgment has been rendered
upon a forfeited recognizance, or for a fine or penalty, without a previous
order for that purpose.
2. Wherever a person charged with a criminal offence, is put upon his trial,
he is, by operation of law, committed to the custody of the sheriff", without
either a general or special order for that purpose.
3. The act of 1812, merely furnishes a remedy, by which a fijie assessed
against a party committed to custody, may be recovered of tlie sheriff", &c.,
or their sureties, in case of escape ; but in addition to this proceeding, the
party guilty of a breach of official duty, might be indicted, if the facts of
56 ALABAMA.
Hodges V. The State.
the case were such as constituted an offence at common law : consequent-
ly, the provisions of the Penal Code, which provide for the punishment of
escapes, are merely substitutes for the common law, and do not abrogate
the act of 1812.
4. The act of 1815, requires the county Ireaserer to proceed against delin-
quent sheriffs, &c., for the recovery of fines, &c.; consequently it is not
competent for the Court in which the judgment was rendered, to institute
the proceeding against the sheriff, mero motu.
Writ of Error to the Circuit Court of Barbour.
Pulaski Mann and Leroy Gunter, were charged in three seve-
ral indictments, with assaults and batteries ; on all of which they
were found guilty, by the verdicts of juries. In the first case,
the parties were fined eighty-five dollars each ; in the second,
eighteen dollars each ; and in the third, twenty dollars each.
Judgments were accordingly rendered against each of the de-
fendants for the fines and cost.
It is shown by the record, by a recital of the fact, that Mann
and Gunter were committed to the custody of the plaintiff in er-
ror, who was the sheriff of Barbour, and that he has omitted to
retain them in custody, but suffered them to escape. Thereupon
it is ordered, that rules be issued returnable to the next term, re-
quiring the sheriff to show cause why he should not be attached
for contempt in the premises. A citation was accordingly issu-
ed, executed and returned. The case thus made coming on for
trial, an entry was made, reciting, that the defendant showed for
cause, that said escapes were involuntary, and moreover, that
there was no order of record, committing said Mann and Gunter,
nor either of them, to his (defendant, Hodge's,) custody; and so
it appears from an inspection of the record of the said convic-
tions of the said Mann and Gunter, at the last term ; nor is there
any general order of that term, that prisoners convicted at that
term, be in custody till fine and costs are paid, shown to the Court,
as being upon the record of proceedings of said term. And fur-
ther, the said Hodges showed for cause, that after the adjourn-
ment of said last term, he took the said Gunter, but finding no or-
der of record for his detention, he released him. And now it is
considered by the Court, that said showing is insufficient, and
that the State of Alabama recover from the said Hodges, the sum
of $259 13, for the balance of fines and costs upon said con vie-
JANUARY TERM, 1845. 57
Hodges V. The State.
tions, of said Mann and Gunter, for which execution may
issue."
BuFORD, for the plaintiff in error, insisted that the rights of
Courts to punish for contempt, was restricted to cases of misbe-
havior in the presence of the Court, or for disobedience of any
party, juror, witness, or officer, to some process, rule or order of
such Court. [Clay's Dig. 151, § 5.]
The record shows, that there was no order for the convicts'
detention; and if there had been, the remedy is by indictment,
and on conviction a fine, from two hundred to one thousand dol-
lars. [Clay's Dig. 429, § 13.]
Attorney General, for the State, moved to dismiss the writ of
eiTor because it was issued by the clerk of the Circuit Court, when
the statute requires an order from this Court, or one of its Judg-
es in vacation. [Bourne v. The State, 8 Porter's Rep. 458.]
If his motion was overruled, he insisted that the proceeding
against the sheriff was authorized by the statute. [Clay's Dig.
247, §§ 4, 10.] The provision on which the plaintiff in error re-
lies, does not repeal the previous act, but is merely cumulative.
[Clay'sDig.429, §§12, 13.]
The record need not have shown, that Mann, and Gunter, were
committed to the sheriff by express order. It is no objection to
the proceeding, that the sheriff was required to answer for a con-
tempt ; such a requisition was proper.
COLLIER, C. J. — It has been always considered, that the
general law, which authorizes a clerk of the Circuit Court to
issue a writ of error, to remove to this Court, a cause in which
a final judgment, &c., has been rendered, embraces a case like the
present. Judgments on forfeited recognizances, or fines or pen-
alties, imposed without a previous indictment, or the verdict of a
jury, have been thus revised. The provision of the Penal Code
applies to judgments rendered on indictments, and does not re-
quire an application to this Court for a writ of error, where the
proceeding is by motion. [Clay's Dig. 470, § 2.]
It is provided by the act of 1812, among other things, that if
any person shall be committed to the custody of any sheriff, or
other officer, by any of the Courts of this State, until the fine, for-
8
68 ALABAMA.
Hodges V. The State.
feiture or amercement, for which he was committed, shall be
paid, who shall suffer him to escape, &c.; then "it shall be law-
ful for the Comptroller of Public Accounts, upon motion in the
Circuit Court, to demand judgment against such sheriff or other
officer, or their securities, for the fines, forfeitures, or amerce-
ments, mentioned in such writ, or for so much as shall be return-
ed levied, or for the amount for which the defendant, or defend-
ants, shall have been committed;" and such Court is authorized
to give judgment accordingly, and award execution thereon.
Provided, ten days previous notice of the motion be given. [Clay's
Dig. 247, § 4.]
By the act of 181.5, it is enacted that all fines and forfeitures
shall thereafter be paid into the county treasury, and not into the
State treasury, &c.; and the county treasurer is hereby required
to proceed immediately, against any officer who shall fail to
comply with the provisions of this section. [Clay's Dig. 249,
§ 10.]
The twelfth and thirteenth sections of the fifth chapter of the
Penal Code provide, that if any sheriff, &c., having the legal cus-
tody of any person, charged with, or convicted of a criminal of-
fence, shall voluntarily suffer, or permit, the person so charged
or convicted, to escape, he shall, on conviction, be punished by
imprisonment in the penitentiary, &c. And if, through negli-
gence, he shall suffer any prisoner in his custody, upon a convic-
tion, or upon any criminal charge, to escape, he shall, on convic-
tion, be fined, not less than two hundred and not exceeding one
thousand dollars. [Clay's Dig. 429.]
Whenever a person charged with a criminal offence is put up-
on his trial, he is by operation of law, committed to the custody
of the sheriff, and there is no necessity for cither a general or
special order, mandatory to that officer. From that moment the
accused is in legal custody, and the sheriff, as the executive offi-
cer, is charged with his safekeeping.
The act of 1812, merely furnishes a remedy by which the
fine, &c., with which the party committed was charged, may be
recovered of the sheriff, or other officer, or their sureties, in
case of his escape. Its effect is to impose on them a liabiUty in
numero, where an escape has been suffered. But the party guil-
ty of a breach of official duty, was still subject to an indictment,
if the facts were such as to constitute an offence. So the officer
JANUARY TERM, 1845. 59
Hogan & Co. v. Reynolds.
might have been twice charged, once on motion under the sta-
tute, to recover the fine, and again On indictment. This being
the law, the provisions of the Penal Code prescribing the punish-
ment for a voluntary and a negligent escape, are merely substi-
tutes for the common law, and do not repeal or abrogate the act
of 1812.
The act of 1815, directs, that « all fines and forfeitures shall
thereafter be paid into the county treasury," and requires the
county treasurer to proceed against delinquent officers, as it was
previously the duty of the Comptroller of Public Accounts to do.
The proceeding in the present case indicates that the Court me-
re motu, or, perhaps, at the instance of the solicitor, was the actor.
This is an irregularity which we think fatal to the judgment ; the
motion should have been made on behalf of the county treasurer,
and he should appear as the party seeking the judgment of the
Court. For this defect, the judgment of the Circuit Court is re-
versed, and the cause remanded.
HOGAN & CO. V. REYNOLDS.
1. It is irregular to permit a witness to give evidence of the general law mer-
chant
2. It is not improper to permit tlie parties to ask a witness, whether he in-
tended to convey to the jury a specified impression, by what he had previ-
ously stated.
3. A witness having stated, that one of the firm sued had borrowed a sum of
money from a third person, of wliich a part had been paid from the firm ef-
fects since its dissolution, also stated, tliat he thought the note of the firm
was given for tlie money so borrowed, but was not certain whether it was
the note of the firm sued on, or the note of another firm, of which the same
partner was a member ; under these circumstances the evidence is admissi
ble, altliough tlie note is not produced, or its absence accounted for.
4. A receipt in these terms, to wit : " Received of W. R. one of the executors of
W. W. two notes of hand on W. G. & J. McN. amounting te $1750, due
lat January, 1838, which we are to collect, or return the same to said R.
60 ALABAMA.
Hogan & Co. v. Reynolds.
with interest from the time it was due," is open to explanation by parol ev-
idence, so as to show whether the words toith interest, &c. was intended to
refer to the Tetum of the money, by the signers, or to the amount which
was to be collected from the notes.
5. The receipt being signed by a firm, and the question being, whether all
the members were bound, or only the one signing it, in the absence of all
explanatory evidence, the Court should give it tlie construction which will
operate most strongly against those purporting to be bound by it.
6. It is not within the ordinary scope of a partnership created for the mere
purpose of buying and selling merchandize, to receive and undertake to
collect notes.
7. If there is a distinction, as to the capacity of one partner to bind the firm,
between the borrowing of money and notes, it does not apply when the bor-
rowed note is taken for the purpose of receiving money upon it, and the
money is actually received.
8. If a partner has converted the money of another to his own use, and after-
wards appropriates the same sum to the purposes of the firm, the firm does
not thereby become a debtor to the person whose money has been convert-
ed ; but if one partner, in tlie firm name, but without the authority of his
partners, obtains money and applies it to the use of the firm, the firm is liable
the instant the appropriation is so made, although it would not be in the ab-
sence of such appropriation, because ofthe_defect of authority.
Error to the County Court of Talladega.
Assumpsit by Reynolds, against Hogan, Hardin & Tompkins,
as partners of a mercantile firm, doing business under the name
of James A. Hogan &, Co. The declaration, besides the general
counts, contains several in which the liability of the defendants is
charged to arise from a written instrument, in these terms :
"March 12th, 1838. Received of Walker Reynolds, one of
the executors of the estate of William Wilson, dec'd, two notes of
hand, on William Graham and John McNeil, amounting to sev-
enteen hundred and fifty dollars, due the 1st day of January, 1838,
which we are to collect, or return the same to said Reynolds,
with interest from the time it was due.
Jas. a. Hogan & Co."
Harden and Tompkins pleaded the general issue, and denied,
by affidavit, the execution of the instrument described in the spe-
cial counts, and therein alledged to be made by them, as well as
by their co-defendant.
At the trial, the plaintiff gave in evidence, articles of co-partner-
JANUARY TERM, 1845. 61
4
Hogan & Co. v. Reynolds.
ship between all the defendants, executed in May, 1837. These
articles recite, that the partnership was to be considered as form-
ed the 1st April, 1836, and continue five years. Hogan put in
$2,010 25, in goods on hand, besides certain real estate. Tomp-
kins was to put in $5,000, $2,010 25 of which had been previous-
ly put in by one R. H. Carr, into the firm, and the remainder in
money. Harden was to put in $5,000, in money. The busi-
ness was to be carried on by Hogan, under the name of James A.
Hogan & Co., and the profits of the business of Hogan, Simms &
Kerr, was to go to the benefit of the business of Hogan & Co.
The firm could be dissolved and its business controlled by a
majority of the partners. He also gave in evidence, the instru-
ment in writing before set out, and proved that the makers of the
notes therein mentioned were perfectly good, and that they were
paid as soon as presented. It was also in evidence, that the firm
of Hogan & Co. was a mercantile firm, of an ordinary character,
in which Hogan was the active partner, and the other defendants
were silent members. The firm was shown to have been dis-
solved in February, 1839, and its affairs committed to a trustee,
named by them, for settlement.
The plaintifFofTered evidence, showing that Hogan had obtain-
ed a note from one Sawyer, which called for $1,000, due from
one Jenkins. Hogan had collected the money on it, and the
witness who spoke of this transaction, thought the note was ob-
tained on the firm account, but was not certain whether it was
Hogan & Co. or Hogan, Carr & Co. Hogan stated at the time
he procured this note, that the firm owed Jenkins, and it would
answer the purpose of money. Hogan afterwards paid the wit-
ness the amount of the note then borrowed, partly in a claim
the firm held against the witness, but there was no proof that
this arrangement was known to the other defendants, or to the
plaintiff".
The plaintiff" then asked a witness, who was a merchant, wheth-
er it was within the custom of merchants, under the law mer-
chant, for any member of a firm to borrow money in the firm
name. The same question was asked of another merchant, and
permitted in both witnesses to be answered in the affirmative,
notwithstanding an objection by the defendants ; who thereupon
excepted.
The plaintiff" called a witness, who stated that he had a con-
62 ALABAMA.
Hogan & Co. v. Reynolds.
versation with defendant, Harden, whom he asked why he let
Reynolds sue him. Harden replied, Reynolds had a right to
sue him, he supposed, that the firm owed him money. Witness
then said to Harden — but Reynolds says you promised to pay
him the money. Harden replied — Reynolds told me he held the
note of the firm for money, but when I came to see it, it was a
receipt for the collection of notes — not a mercantile transaction,
and without the scope of the partnership. The defendants then
asked a witness, if Hogan could have borrowed this amount of
money on his own responsibility. The witness replied, he could,
from some persons. The plaintiff then asked the witness, if he
desired to be understood as saying, that Hogan could have bor-
rowed the money from Reynolds. To this question the defend-
ant objected, but the Court permitted the witness to answer ; and
he then said he thought not. The defendants excepted to this.
The defendants proved that the firm had a cash capital, at its
formation, of $12,000, which, with prudent management, was
sufficient to sustain the business without borrowing. The same
witness proved that collections were deferred in the fall and win-
ter of 1838-9. The plaintiff then proved that Hogan had bor-
rowed 82,000 in cash of one Ball ; that a part of the money, since
the dissolution of the firm, had been paid out of the firm effects, by
the consent of the partners. To all this about borrowing money,
the defendants objected and excepted.
The witness then stated that he thought Hogan gave Ball the
note of the firm of James A. Hogan & Co., but was not certain
whether it was that or the note of Hogan, Carr & Co, The
defendant objected to the witness speaking of the note, until its
absence was first accounted for, but the Court admitted the evi-
dence ; to which the defendant excepted. The defendants then
proved, that in August or September, 1838, a dissolution of the
firm was proposed, and preparatory thereto, Hogan made out a
statement of what he said were the firm liabilities and assets.
The witness then before the Court, produced a paper, which he
said was that statement, and the defendants asked if the debt
now sued for, was included in that statement. The plaintiff ob-
jected to this question, and to all evidence in relation to that pa-
per. The Court sustained the objection, and the defendants ex-
cepted.
The witness then stated, that he was the clerk of Hogan & Co.
JANUARY TERM, 1845. 63
Hogan & Co. v. Reynolds.
and familiar with their books, and that no writing within his
knowledge had ever been made concerning the notes mentioned
in the receipt, or their proceeds.
It was further proved, that the notes named in the receipt were
collected, and their proceeds applied under Hogan's direction.
Some seven or eight hundred dollars were shown to have been
appropriated to the firm liabilities, and as to the remainder there
was no proof as to its application ; nor was there any proof that
either of the other defendants knew of its appropriation to firm
purposes, or of their consent that it should be so applied, save such
inferences as may be drawn from the facts previously stated ; nor
was there any proof of objection by them, to the appropriation,
further than the facts previously set out. The defendants then of-
fered to prove, by a witness, that in a conversation had with Ho-
gan, in reference to the subject matter of the suit, Hogan told the
witness, that if the firm would not take the money he would, and
buy negroes, whose increase would be worth more than the in-
terest of the money. The plaintiflf objected, and the Court ex-
cluded the evidence ; to which the defendants also excepted.
This being substantially all the evidence before the jury, the de-
fendants requested the Court to charge the jury —
1. That the plaintiff" having produced the special contract, to
wit, the receipt, he must recover on that receipt, or not at all.
2. That if they should believe that the receipt sued on was giv-
en without the scope of the ordinary dealings of the firm of Hogan
& Co., Harden and Tompkins were not bound by it.
3. That should they believe,the firm of Hogan &Co.was a mer-
cantile firm,engaged in the ordinary business of buying and selling
merchandize, and not in the habit of giving receipts for notes for
collection, then Harden and Tompkins were not bound by the
receipt, unless they gave their assent to it, or in some way ratified
the act.
4. That to entitle the plaintiflf to recover for money collected
on the notes mentioned in the receipt, (if any was collected,) and
if the jury should find that the receipt was given without the scope
of the ordinary patnership dealings, and that the giving it was
not assented to, or sanctioned by Harden and Tompkins, the
plaintiff must show that the meney was used by, or came into the
firm, by the consent, or with the knowledge of Harden and
Tompkms.
G4 ALABAMA.
Hogan &. Co. v. Reynolds.
5. That if any money was collected from the notes, the plain-
tiff in no event could recover, without proving a demand of the
money before suit: and if the plaintiff had failed to prove a de-
mand, the jury should find for Harden and Tompkins on the com-
mon counts.
6. That a partner of an ordinary mercantile firm has no au-
thority to borrow notes on other individuals, and bind the fi^m for
their collection, or return, without the acquiesence or consent of
his partners ; nor does it alter the case, that the partner thus bor-
rowing the notes, intended to use the funds arising from their col-
lection for partnership purposes.
7. That if they should be satisfied the receipt exhibited was
given without the scope of the partnership dealings, and that
Harden and Tompkins never ratified the act, either directly or
indirectly, then the plaintiff is not entitled to recover against them,
for any money brought into the concern as the proceeds of the
notes, or applied to the payment of firm debts, without their know-
ledge or consent.
8. If they should find that Hogan was the active partner of
the concern, that did not authorize him to bind the firm, upon
contracts unconnected with the business of the firm.
9. If they should believe that Harden, under the representa-
tion of the plaintiff, that he held the note of the firm of Hogan &
Co., promised to pay it, this would not render the firm liable up-
on the receipt exhibited.
Each of these charges as asked was refused, and the jury was
charged in these terms :
" A receipt by a partner of a mercantile firm, the legal import of
which is to collect money on notes, is without the scope of the
partnership dealings; and if the jury, after taking all the evidence
should find, that this is a receipt solely, and only for collecting mo-
ney on notes, then they should find for defendants. But, should
the jury, from the force of evidence, as they can and may, be-
lieve, that the receipt contains such language and such terms as
will imply a borrowing on the part of Hogan, from Reynolds, of
money, and that the proceeds were realized from the notes, and
applied to purposes of the partnership, then the receipt does come
within that provision of law which says, that one pai'tner may
bind the firm, in all matters growing out of, or having reference
to the business thereof. The receipt, embracing a promise to pay
^ JANUARY TERM, 1845. 65
Hogan & Co. v. Reynolds.
interest, may be regarded by the jury, not so mtich a receipt
for the collection of notes, as an arrangement to borrow money,
as it is not usual for officers of the law, or collecting agents to
pay interest, and the law will not compel them to do so, until
after a demand and refusal.
"If the jury believe the arrangement was made^by Hogan,
to borrow money, and was not made by him in his individual
capacity, and applied to his individual use, then they should
find for the plaintiff.
If Hogan gave the instrument sued on, and a part of the mo-
ney was applied to the debts due by the partnership, the firm
is bound for the whole.
The receipt is not like the iron bed of Procrustes — it is the
foundation of the action, and must be taken in connection with
the other evidence in the cause ; and the jury ought to consider
any evidence going to show, that money was received on the
notes, by Hogan, and applied to the business of the firm. That
parol evidence is not admissible to vary a written instrument,
but the jury will give weight to any thing which tends to sub-
stantiate it."
The refusal to give the several charges requested, and that
given, were excepted to, by the defendants, and are row as-
signed as error, as is also the several rulings of the Court, upon
the matters of evidence excepted to at the trial.
W. P. Chilton, White, and S. F; Rice, for the plaintiffs in
error, contended —
1. That it was error to allow witnesses to give evidence of
the law merchant.
2. It was irregular to permit the witness to give his opinion
with reference to the fact, that Reynolds would not have lent
money to Hogan individually.
3. The allowing a witness to speak of a transaction in which
a note was given for borrowed money, without the production
of the note, is in direct opposition to a well known rule of evi-
dence ; and in the particular instance referred to, if the paper
had been produced, it might have shown the entire statement
to have no connection with the suit.
4. The principal question is, whether the firm is bound by
Hogan's undertaking to collect or return notes. Such acts are
Q
66 ALABAMA.
Hogan & Co. v. Reynolds.
not within the ordinary business of commercial partnership, and
therefore the firm is not bound. [Story on Part. 165, 169, 173,
175,221,225; Catlin, Peoples & Co. v. Gilder's Ex. 3 Ala.
Rep. 536.]
5. Nor does the fact that money thus raised without authori-
ty, is carried into the firm, make the other parties responsible.
[Whitaker t. Brown, 16 Wend. 505 ; 8 N. Hamp. 363 ; 21
Wend. 365.]
6. The borrowing of notes cannot be regarded in the same
light as the borrowing of money, for the reason, that there is
necessarily some limit to the power to borrow. Such an
act is not usual, and therefore the power to do it ought not
to be inferred. [Cook v. Branch Bank at Mobile, 3 Ala. Rep.
178 ; Mauldin v. same, ib. 502 ; Fisher v. Campbell, 9 Porter,
216.] It would not be contended, that land, slaves, &c., could
be borrowed, so as to bind the partnership, and it is difficult to
define the distinction between such acts and this.
Peck, contra, insisted there was no error in the several points
ruled at the trial.
1. It was irrelevant; perhaps, to ask any witness what the
law merchant was, but certainly a correct exposition of it ought
not to reverse a judgment.
2. It is a mistake to suppose that witness gave his opinion
upon the probability of Reynolds trusting Hogan alone. He
was merely asked if he wished to convey a particular impres-
sion to the jury, and very properly was permitted to answer,
that he did not.
3. It was impossible for the witness, or for the plaintifFto pro-
duce the note given by Hogan, for borrowed money to another
person. The inference clearly is, that it had been paid and
cancelled; however it may be, it is not within the reason of the
rule, or indeed of its letter.
4. The receipt is capable of no other construction, than that
the money was to be loaned if collected. It is therefore within
the general scope of the business of a mercantile firm. CoUyer
on Part. 103, 212, 219, Gow. 52, 53; Collyer, 215, note, 68; 1
Esp. 406.]
5. But one partner may not only bind the firm, in the ordina-
ry acts connected with its business, but also by acts out of that
JANUARY TERM, 1845. 67
Hogan &. Co. v. Reynolds,
course, if done with reference to matters transacted by the firm.
[Coliyer, 237, 271 ; Govv, 76, 74 ; 1 Salk: 291.]
6, The appropriation of the money to firm purposes, makes
the partnership responsible. [Gow, 57 ; G Conn. 497.]
7. The plaintiff was entitled to a charge, giving a construc-
tion to the receipt, and although some of the charges asked and
refused, may be correct enough, as mere abstract propositions,
they were properly refused, because not involved in the evi-
dence before the jury. It is possible too, the charge given may-
contain propositions which are debateable, yet they could not,
nor did, affect the merits, which are clearly with the plaintiff.
GOLDTHWAITE, J.— The investigation, severally, of each
of the questions raised in this case, would swell our opinion to
an undue length. We shall therefore limit ourselves to the de-
cision of those points of evidence which were made at the trial,
and the ascertainment of the rules by which, in our judgment,
the cause ought to have been governed in the Court below.
1. It was doubtless irregular to permit any witness to give
evidence of the general law merchant, and it is very possible, if
the objection was made to the relevancy of such evidence, the
exception would be of sufficient weight to reverse the judgment;
but this point being one of no importance, as we consider the
case, we decline any further expression upon it.
2. The next exception calls in question the propriety of per-
mitting a witness to say, that hi's testimony was not intended to
convey the impression to the jury, that he supposed the plaintiff
would have lent the money to Hogan individually. We see no
reason why such explanation should not have been given; the
question asked of the witness was, whether Hogan, on his own
responsibility, could have borrowed such a sum of money. The
answer of the witness was, that he could, from some persons;
and, as this was nothing more than the expression of his opinion,
there was no impropriety in ascertaining if the plaintiff was in-
tended to be included in his answer.
3. The only other exception to the evidence which is now
insisted on, is, that which questions the right of the plaintiff to
examine his witness, as to some money borrowed by Hogan,
from one Ball, for which either the note of Hogan & Co. or of
Hogan, Carr & Co. was given, because the note was not pro-
68 ALABAMA.
Hogan &. Co. v. Reynolds.
duced or accounted for. The true rule with respect to this
matter, is well stated in Cowan & Hill's notes, 1209, where it is
said, " but even where the law calls for the writinir as the best
evidence of the transaction to which it pertains, certain things
relating to the writing, or the matters evinced by it, may be
proved, without producing it, though they involve the fact of
its existence." Thus in an action for the purchase money of a
note, sold by the plaintiff to the defendant, parol evidence of the
sale may be given without producing the note, or accounting
for its absence. [Lamb v. Maberly, 3 Monroe, 179.] So the
existence of a deed for slaves, will not prevent parol evidence
from being given, without its production, for the purpose of
characterising the] possession which accompanied it. [Spears
V. Wilson, 4 Cranch, 398; see also, Rex v. Ford, 1 Nev. &
Mann. 776.]
It might also be said, in answer to this exception, that it was
not affirmatively shown that the note existed, and that the ordi-
nary presumptions were, that it was paid, and consequently
cancelled, or destroyed, though we prefer our decision to rest
on the general rule.
4. Having thus disposed of the preliminary questions of evi-
dence, we shall consider the rules which must govern the cause
on its merits. And, first, with respect to the effect of the re-
ceipt offered in evidence. We think undue weight is given to
this, by both parties, for each seems to consider it conclusive of
the case. In our judgment, it belongs to that class of writings
which is open to explanation. We do not now speak of that
explanation which all writings receive, from the circumstances
surrounding, and attending their execution, or which arises out
of the description of the parties to them; for we consider those
matters as proper in all cases; and as such they are held, by
elementary writers on the subject of evidence. [Philips on Ev.
643 ; Wigram on Ex. Ev. 59 ; Gresley's Eq. Ev. 201.] But
we refer to that explanation, which may be given to terms of a
doubtful, ambiguous, or double nature. That the notes describ-
ed in the receipt, were to be collected, and that they might be
returned,is very clear; but it is doubtful whether the last ex-
pression used — with interest from the time it was due — refers
to the return of the money, by Hogan & Co., or to the amount
which was to be collected from the notes of Graham and Mc-
JANUARY TERM, 1845. 69
Hogan & Co. v. ReynolAs.
Neil. It is upon the connection of this expression with the one
or the other of these matters, that the prima facie force of the
writing depends; for if those words refer to the payment of in-
terest by Hogan & Co., it is difficult to resist the conclusion,
that the parties contemplated a loan of the money, in the event
of its collection; but if they refer merely to the amount to be»
collected, then it is quite obvious they do not extend the mean-
ing of what precedes them, and the receipt is one for collection
only.
It would be strange indeed, if a writing of this description,
which every one will admit to be so ambiguous, that it is diffi-
cult to determine what was really intended by it, should be in-
capable of explanation by extrinsic or parol evidence ; but the
principle is well settled, that such evidence is admissible. Thus,
if one promises to pay another a sum of money for counsel, it
shall be intended to be* for counsel in law, physic or otherwise,
as the promisee maybe of either of those, or other professions.
[Powell on Con. 384.] So it has been held, where a bequest
was made of a female slave and her increase, that extrinsic evi-
dence was admissible, to explain and apply the term increase,
to those already born, or those to be so in future. [Reno's Ex.
v. Davis, 4 H. & M. 283.] The case of Cole v. Wendall, 8
John. 116, is very similar, in principle, to the one under consid-
eration. There, one of the parties agreed to receive from the
other, sixty shares of the stock of a certain bank, on which ten
dollars per share had been paid, by the seller, and he was to re-
ceive his note for $667, from the purchaser, who was to pay
the remainder in cash, and an advance of five per cent. It was
held, that parol evidence of the agreement between the parties
wa sadmissible, to show, whether the term five per cent, advance,
was applicable to the nominal amount of the shares, or the sum
paid for them by the seller. These cases are entirely satisfac-
tory, to show, that wherever language is used in a written in-
strument, which is capable of receiving two meanings, it is open
to explanation, by parol or extrinsic evidence.
The terms made use of in this receipt, are not so clear as to
authorize a Court to determine positively, and absolutely upon
their meaning. We arrive thus at the conclusion, that this receipt
may be explained, by extrinsic or parol evidence, so as to show
what the parties intended by the doubtful terms.
70 ALABAMA.
Hogan & Co. v. Reynolds.
5. But, however this instrument may be subject to explana-
tion and control, by evidence aliunde, the question may arise as
to its construction, in the event that no such evidence is given.
It is a most salutary rule, and of as much force here as in any
other case, that a written instrument is to be construed most
strongly against the promissor ; and when he has made use of
language of doubtful or double import, he will not be heard to
complain, that it is taken in its strongest sense. So too, as the
instrument is capable of two constructions, it should receive that
which will bind all the firm, as it purports to do, instead of one
which will bind a single partner only. Again, the rule is, that
every part of an instrument shall receive such a construction,
that none of it shall be rejected as insensible, if it is capable of
meaning ; and this cannot be applied to the last phrase of the
receipt, without construing it to mean an engagement by the
firm, to pay interest upon the sum of $1,750, (if collected from
Graham and McNeil,) from the time it was due from them.
6. If, however, the evidence before the jury, satisfied them,
that the doubtful phrase in the receipt, referred merely to the
collection of interest from Graham and McNeil, then the ques-
tion would have arisen, huw far the firm was bound by the act
of Hogan. It certainly is not within the ordinary scope of a
partnership, created for the mere purpose of buying and selling
merchandize, to receive, and undertake to collect, notes on oth-
er persons ; though we are not unaware that it is extensively
the practice for commercial firms, in one place, to send their
demands to other firms, or houses, doing business near the resi-
dences of the debtors. How far the assent, or concurrence of
all the members of the firm might be presumed, from the act or
correspondence of one, in the name of the firm, is not here the
question, and therefore calls for no consideration. Whatever
the presumptions in such a case might be, it is evident they
would not be the same where the party seeking the collection,
resided in the same vicinage with the house to which these de-
mands were committed, and when he possessed the same facili-
ties for collecting them in person, or for transmitting them to
others.
7. It is conceded that one partner may bind the firm, for
money borrowed in the firm name ; but the power is denied to
borrow notes on other individuals. We will not discuss this
JANUARY TERM, 1845. 71
Hogan & Co. v. Reynolds.
point further than to say, that if there is a distinction between
the borrowing of money, and notes, it does not apjoly, when the
borrowed note is taken for the purpose of receiving money up-
on it ; and such is actually received. No one can suppose the
giving a check upon a bank, or an order, or a draft upon a third
person, is not a loan of money, when that is afterwards received;
and we can perceive no reasonable distinction between these
cases, and the transfer of a note, followed by a similar payment.
8. It is doubtless true, that if one partner has converted mo-
ney to his own use, and he afterwards appropriates the same
sum to the purposes'of the firm, the latter does not thereby be-
come a debtor to him whose money has been converted ; but
such a state of facts is widely different from the case, where
one partner, in the firm name, but without the actual authority
of his partners, obtains money, and applies it to the use of the
firm. The firm, in consequence of the defect of authority,
might not be liable without the application of the money to firm
purposes ; but certainly becomes so, the instant the appropria-
tion is made.
This summary of rules, will enable us to determine all the
questions presented by the refusal to give the charges request-
ed by the defendants, as well as the charge actually given. It
is possible, that all the evidence before the jury was not sufiicient
to destroy the prima facie intendments arising out of the re-
ceipt ; but we cannot say there was no evidence to be consid-
ered in that connection. We cannot, therefore, coincide in the
plaintiff's view, that the charges asked are wholly abstract.
Without intending to be understood as having given a critical
examination to all the instructions refused, we may remark, that
the second, fourth, eighth, and ninth, seem to contain proposi-
tions entirely clear ; and therefore should have been given; but
it would also have been proper to have accompanied them with
such explanations, as would have prevented their generality
from misleading the jury.
The first and fifth charges were properly refused, because
the propositions therein contained are not correct, when appli-
ed to the facts of this case; and the third, because it assumes
the receipt to be one for collection only. The sixth, and se-
venth, were also properly refused, because not in accordance with
the rules deduced.
72 ALABAMA.
Gilmer v. Wier.
One error of the charge given to the jury is, that it leaves the
priina facie construction of the receipt to the jury, when the
Court should have declared it ; but this, in all probability,
did not prejudice the defendants. Another is, that the ap-
propriation by Hogan, of a part of the money collected to
the use of the firm, made it liable for the whole amount; with-
out drawing the distinction between the receipt as one for col-
lection only, without ratification by the other partners, and as
evidence of a loan of money. The last, and possibly the most
important, is, that parol evidence is not admissible to explain
the doubtful terms of the receipt ; for such we understood to be
the effect of the charge.
Let the judgment be reversed, and the cause remanded, that
further proceedings may be had, in accordance with this
opinion.
[Note. — This cause was decided at June Term, 1844, and should have
been published in the 6th or 7th volume of Reports,]
GILMER V. WIER.
1. One who, as administrator, improperly sues out an attachment, is liable to
respond in damages personally. He cannot, by his tortious conduct, sub-
ject the estate he represents, to an action for damages.
Error to the Circuit Court of Cherokee.
The action was brought to recover damages for improperly
suing out three attachments, against the defendant in error. The
defendant demurred to the declaration, which was overruled by
the Court, and judgment rendered for the plaintiff! The error as-
signed is, the overruling the demurrer to the declaration.
Moore, for plaintiff" in error.
JANUARY TERM, 1845. 78
Horton v. Smith.
ORMOND, J. — The objection taken to the declaration is, that
there is a misjoinder of counts. This objection rests upon the
fact, that in one count of the declaration, the attachment is al-
ledged to have been sued out by Gilmer, in his own name, and
in two other counts, that in suing out the attachment, he describ-
ed himself as the administrator of J. Waters, deceased. This is
certainly not a misjoinder of counts. In all, he is proceeded
against individually, and could not have been sued in any other
mode. He" could not be sued as the administrator of J. Waters,
because describing himself as such, and to recover a debt due
the estate, he improperly sued out an attachment; nor could he
subject the estate to an action for damages by his tortious con-
duct. He was therefore liable to respond personally for the in-
jury, and was properly sued in his individual character.
The statement in the declaration, is mere matter of description,
which was not necessary, but which does not vitiate. The judg-
ment must therefore be affirmed.
HORTON V. SMITH.
1. The mere right to personal property in the possession of a third person,
which possession originated, and is continued, in good faith, is not subject
to seizure under an attachment or execution; and where there is no evi-
dence tending to prove mcdajides, a charge to the jury, laying down the
law as above stated, is not erroneous, because it omits to refer to them the
bonajides of the adverse possession.
2. The admissions or declarations of a vendor, or assignor, of personal pro-
perty, made before the sale or assignment, are evidence against his vendee,
or assignee, claiming under him, immediately or remotely, either by act or
operation of law, or by the act of the parties. So they are in like manner
evidence against any one, coming after such admissions, or declarations
made, into his place, or representing him in respect to such rights and lia-
bilities. But the exclusion of such evidence, where it could not have
worked a prejudice, will not be available on error.
10
74 ALABAMA.
Horton v. Smith.
3. Sejnble : A derivative purcliaser, witliout notice, cannot be affected by a
notice to his immediate vendor ; and if he purchases with notice, he may
protect himself by tlie want of notice in such vendor.
Writ of Error to the Circuit Court of Lowndes.
The plaintiff in error sued out an attachment on the 14th Oc-
tober, 1842, against the estate of Lewis B. Talliaferro, who it was
alledged, resided without the limits of this State ; which being
levied by the sheriff of Lowndes, on certain slaves, the defendant
in error interposed a claim, and gave bond with surety, for the
trial of the right, as provided by statute. An issue was made up,
and tried by a jury, who returned a verdict for the claimant, and
a judgment was rendered accordingly. At the trial, a bill of ex-
ceptions was sealed, at the instance of the plaintiff, from which
it appears that the slaves in question descended to the wife of the
defendant in attachment as heir at law of the estate of Nicholas
Johnson, deceased, (her father;) that the defendant took posses-
sion of the slaves, and held them as such heir, during the year
1832. In 1833, he put them in possession of C. E. Talliaferro,
for his son N. J. and his daughter Harriett, who removed them
from Lawrence to Marengo county, where they remained up to
1836; the defendant in the meantime residing in the county of
Madison. The claimant deduced a title from N. J., the son of the
defendant, and introduced evidence tending to show a parol gift
of the latter, to his son, previous to his (claimant's) purchase, and
before the debt due the plaintiff was contracted.
The plaintiff then offered a deed, executed by the defendant,
which conveyed the slaves in question to C. E. Talliaferro, as
trustee for the use of N. J. Talliaferro. This deed was duly ac-
knowledged and certified, according to law, on the 23d Septem-
ber, 1840. It provides that the trustee shall hold the slaves em-
braced by it, in special trust and confidence, to the following uses
and intents, viz : that he shall annually pay over to the cestui que
trust, the hire and profits of the slaves, untU he shall attain the
age of twenty one years ; or the trustee may, in his discretion,
permit him to possess, employ, and work them, until he attains
the age of twenty-one years. Whenever the cestui que trust
shall attain to that age, it shall be the duty of the trustee, and he is
directed, to convey and deliver the slaves to him in fee : to have
JANUARY TERM, 1845. n
Horton v. Smith.
and to hold them, and the increase of the females, to the cestui
que trust, and his heirs.
Proof was also adduced, tending to show, that there never had
been a parol gift, from the defendant in attachment to his son, but
there existed a mere intention to give, which was not consum-
mated until the execution of the deed above recited. It was also
shown, that N. J. Talliaferro had sold the slaves to the claim-
ant, after that deed was made, before he was twenty-one years
of age ; and that he died previous to attaining his majority.
The plaintiff prayed the Court to charge the jury, that if they
believed, from the testimony, that the deed constituted the only
gift of the slaves, from the defendant in attachment, to the vendor
of the claimant, and that the latter had derived title to them in no
other way than under that deed ; that he sold the slaves to claim-
ant, and died before he was twenty-one years of age, then the
slaves were the property of the defendant in attachment, subject
to his debts, and they must so find by their verdict ; which charge
the Court refused to give.
The Court charged the jury, that if they found the facts as
stated in the instruction above prayed, then the defendant in at-
tachment would have a reversionary interest in the slaves, which
his creditors could not reach in this proceeding, and which no
one could recover, but by suit in the name of the defendant him-
self.
In the course of the trial, the plaintiff offered to prove that N.
J. Talliaferro, while he had possession of the slaves, and before
he had sold them to the claimant, but not in his presence, or to
his knowledge, said that the slaves had been given to him by his
father, after the plaintiff's and other debts then in execution, in
the sheriff's hands, had been contracted, and subsequent to the
date of the parol gift attempted to be established. But this testi-
mony was rejected by the Court, &c,
T. J.] JuDGjE for the plaintiff in error, insisted that the death of
N. J. Talliaferro, before he became twenty-one years old, caused
the slaves embraced by the deed, to revert to to the defendant in
attachment ; and having a legal interest which would support an
action at law, it might be levied on at the suit of his creditor.
True, the declarations of a vendor, are not admissible to defeat a
title which he has conveyed; but what he has said about his title
76 ALABAMA.
Horton v. Smith.
while in possession of the property, is always received as evi-
dence.
N. Cook, for the defendant in error, contended, that the abso-
lute estate in the slaves vested in N. J. Talliaferro, without re-
ference to his age, at the time of his death, and the distributees
provided by the statute, in cases of intestacy, became entitled ;
and the father could not take, if there were children of the intes-
tate, or brothers and sisters surviving. Further, if the father
took a reversionary interest, or, as a distributee, he had no such
right as could be sold under attachment or execution.
He insisted that the declarations of a vendor of real property
were, under some circumstances, competent evidence, but the
rule had not been extended so far as to admit such evidence, where
personal property was the subject of the sale. He cited, 5 Ja-
cob's Law Die. 446-7, 526 ; Sugden on Powers, 81 ; 1 Mad.
Chan. 252-3 ; 1 Ala. Rep. N. S. 582 ; 11 Pick. Rep, 50 ; 7 Cow.
Rep. 752 ; 8 Wend. Rep. 490 ; 1 Mass. Rep. 165 ; 1 Esp. Rep.
357; 2 Ala. Rep.526;'l Starkie's Ev. 306-7, note, (1); 2 Ala.
Rep. 648, 684.
COLLIER, C. J.— In Wier v. Davis and Humphries, 4 Ala.
Rep, 442, it appears, that an administratrix sold, at private sale,
a slave belonging to the estate of her intestate ; that afterwards, a
creditor obtained a judgment against her, in her representative
character, and caused an execution issued thereon, to be levied
on the slave, in the possession of a person who had purchased
from the vendee of the administratrix. It was held, that an ad-
ministrator is not authorized to sell the personal estate of his intes-
tate at private sale, and the purchaser, under such circumstances,
does not acquire a valid title. But the Court said, although the
title of the estate is not divested by the unauthorized sale, yet it
does not follow that a creditor can subject the property to sale,
under execution. « We have never understood, that an execu-
tion against the goods and chattels of any person, could b3 fo
used as to transfer a mere title, unaccompanied by the possession.
It is obvious, that such a rule would be liable to abuse, from col-
lusive arrangements, by which a person out of possession, and
with a doubtful title, would substitute another in his place, cloth-
ed with the more imposing title of purchase under a sheriff's sale.
JANUARY TERM, 1845. H
Horton v. Smitli.
Added to this advantage, the possession itself would be changed
by the seizure, and transferred to the purchaser." Further —
•« The relative condition of the parties would be entirely reversed,
and the unquestioned possession which before was held under a
defective title, would be turned into a mere right of action. We
apprehend it is well settled that the mere right of action of a de-
fendant in execution to personal property is not the subject of a
levy. [Commonwealth v. Abel, 6 J. J. Marsh. 476 ; Thomas v.
Thomas, 2 Ma?'sh. Rep. 430, and cases there cited."]
In the case from which we have so largely quoted, the Court
also cite Goodwin v. Lloyd, 8 Porter, 237 ; Brown v. Lipscomb,
9 id. 462 ; in which it was determined that a person who has a
mere right of action to personal property cannot transfer it, so as
to authorize a suit in the name of the purchaser ; and say that it
is always a question for the jury, whether the adverse possession
is bona fide; if this is wanting, the transfer, whether by sale or ex-
ecution will be inoperative.
We have cited thus, at length the case reported in 4 Ala. Re-
ports, because it seems to us to be conclusive of the present, both
upon the charge given and refused. The facts show that the
claimant holds the slaves in question, under a title adverse to the
defendant in attachment; whether it be superior, or not, is imma-
terial in the present inquiry ; for the conflict of title depends, not
upon the fact, that one is better than the other, but upon the oppo-
site pretensions which the parties set up to the same object.
It is not necessary, in the posture in which this case comes be-
fore us, to consider whether the slaves conveyed by the deed, in
trust for N. J. Talliaferro, reverted to the donor by the death of
his son, during his minority. If this be so, the mterest of the de-
fendant in attachment, we have seen, is a mere right of property,
not acquiesed in by the party in possession, and consequently not
liable to seizure, by mesne or final process.
The charge given, it is true, does not refer the bona fides of the
possession of the claimant to the jury, but assuming that it origi-
nated, and is continued in good faith, the Court say, that the rever-
sionary interest of the defendant can't be reached, by an attachment
sued out at the suit of his creditor. This charge, if there was evi-
dence tending to prove mala fides, would be objectionable, but as
there was no such proof, it was not necessary to embarrass the
inquiries of the jury, by laying down the law upon a point which
did not arise out of the evidence.
78 ALABAMA.
Horton v. Smith.
The admissions or declarations of the assignor, vendor,or holder
of personal property, made before the sale, assignment,or other de-
parture with his interest, are evidence against his vendee, assignee,
or other person claiming under him, immediately or remotely,
either by act and operation of law, or by the acts of the parties.
And his declarations, with regard to his rights and liabilities, are in
like manner evidence against any one coming after such declara-
tions made, into his place, or representing him in respect to such
rights and liabilities. In case of a sale, it is said, that such decla-
rations of the vendor made previous thereto, as would be evi-
dence against himself, are also admissible against his vendee.
And this without regard to the question, whether the vendor be a
competent witness, alive, capable of attending Court, and within
reach of its process. The cases on this point, are collected by
Cowen & Hill, in their notes to Phillips on Evidence, (2 vol. 596
to 603, and 656 to 669.) This statement of the rule will show,
that the evidence of the declarations of the claimant's vendor were
admissible upon principle; and the only remaining question is, was
the plaintiff prejudiced by their exclusion.
In Fenno, et al. v. Sayre & Converse, 3 Ala. Rep. 458, we
held, that a derivative purchaser, without notice, cannot be affect-
ed by a notice to his immediate vendor ; and if he purchases with
notice, he may protect himself by the want of notice in such
vendor. Sugden says, that although a deed be merely voluntary,
or fraudulent in its creation, and avoidable by a purchaser, viz:
would become void by a p erson purchasing the estate, yet it may
become good by matter ex post facto; as, if a man make a feoff-
ment by covin, or without any valuable consideration, and then
the first feoffor enter and make a feoffment, for a valuable con-
sideration; the feofee of the first feofee, shall hold the lands, not
the feofee of the first feoffor ; for although the estate of the first
feoffee was, in its creation covinous, or voluntary, and therefore
voidable, yet when he enfeoffed a person for a valuable considera-
tion, such person shall be preferred before the last.'' [Sugden on
Vendors, 471 ; Bumpass v. Platner, 1 Johns. Ch. Rep. 212 ; Ro-
chelle v. Harrison, 8 Porter's Rep. 351 ; Eddins v. Wilson, 1 Ala,
Rep. N. S. 237.] Now if the claimant was a bona fide purcha-
ser, without notice of a fraud, or of facts, which the law considers
sufficient to establish it, or from which it is inferrable, then he
could not be affected by a notice to his vendor. There is nothing
JANUARY TERM, 1845. W
Crawford V. The Branch Bank at Mobile.
in the record, as we before remarked, on which the imputation of
unfairness in the claimant's purchase can rest. This being as-
sumed, the liability of the slaves to the attachment of the plaintiff,
cannot be maintained ; for then the claimant's possession would
be bona fide, under a claim of right, honestly acquired, which, we
have seen, cannot be divested, by the levy of an attachment, or
execution. The rejection of the evidence then, did not injuriously
affect the plaintiff. The judgment of the Circuit Court is conse-
quently affirmed.
CRAWFORD V. THE BRANCH BANK AT MOBILE.
1. The Bank of the State and its Branches, being^public property, its books
are public writings, and when the books themselves would be evidence, if
produced, sworn copies are admissible in evidence.
2. A clerk of the Bank cannot testify to facts of which he has no knowledge,
from notes, or memoranda, taken from the books of the Bank.
Error to the Circuit Court of Mobile.
Motion by the Bank, against the plaintiff in error, as maker of
a promissory note. The defendant appeared and issue was
joined, on the plea of payment. The defendant, as appears from
a bill of exceptions, introduced the Cashier of the Bank, and ask-
ed him, if he had produced the books, agreements, &c., connect-
ed with a shipment of cotton by the Bank, and produced the
subpoena executed on him, and the President, requiring them to
produce them. The books not being produced, the Court allow-
ed the defendant to examine the witness as to their contents,
who testified that he had made but a partial examination of their
contents, and could not well answer. That he inferred from the
words, « on cotton," written on the back of the book, in red ink,
that the note was received in bank, in connection with a shipment
of cotton by the defendant, through the bank ; that the writing
was made by a clerk of the Bank, and that the transactions,
80 ALABAMA.
CraAvford v. The Branch Bank at Mobile.
termed cotton transactions, were kept separate, from the ordina-
ry accounts of tiie Bank. That he was of the impression, that
the Bank had received 190 bags of cotton of the defendant, for
shipment, but did not know to whom shipped, when sold, nor the
price of cotton in the market. The defendant then proved the
value of cotton in the market, and the average receipts by another
witness.
The plaintiff, in reply, introduced a clerk of the Bank, who tes-
tified, that he was not a clerk in the Bank at the date of the trans-
action referred to ; that he had made some of the entries in these
books, and was not the keeper of them, but had access to them.
He produced memorandums which he had just taken, shewing
both the description of a draft, and the note in dispute, which
note he stated had been discounted by the Bank, on the day of
its date, and his memorandum stated the amount that had been
paid for them ; these be stated, were based on a shipment of
cotton. He further testified, to a note having been discounted
in December, 1840, to settle the balance on the cotton shipment.
He was asked whether the last note was taken to settle the whole
transaction, or the balance due on the draft, but could not an-
swer with precision, and could not tell what the cotton sold for.
When this examination commenced, the defendant's counsel
objected to any question being asked apparent on the books or
papers of the Bank, and insisted that the books and papers, or
sworn copies at least, should be produced, and the testimony of
the clerk was not competent ; but the Court overruled the ob-
jection, and permitted the witness to speak from the memoran-
dums taken from the books ; to all which the defendant except-
ed. The plaintiff had judgment, from which this writ is prose-
cuted.
The plaintiff in error filed a written argument, in which he re-
lied upon the following authorities: 4 Ala. Rep. 159; Washing-
ton C. C. R. 51 ; 2 Sumner, 453 ; 1 Peters, 596 ; 9 Wheaton,
558 ; 3 Robinson's Law. R. 33 ; 3 Watts & Ser. 291 ; 5 Ala.
Rep. 784 ; 1 Phillips Ev. 290 ; 4 Ala. Rep. 46.
Dargan, contra.
ORMOND, J. — An exception to the general rule, that the
best evidence must be produced, obtains in the case of public
JANUARY TERM, 1845. 81
Houston V. Frazier.
writings, as it would be improper to permit them to be transport-
ed from place to place. [1 Phillips Ev. 428.] In England, it
has been held, that the books of the East India Company, and the
Bank of England are, for some purposes considered as public
writings, from the interest the public have in them, and"so far as
the books themselves would be evidence, if produced, sworn cop-
ies may be admitted in evidence. See the authorities referred
to by Phillips at page 428, and see also, 1 Starkie, 157 ; Mann v.
Cary, 3 Salkeld, 155 ; Philadelphia Bank v. Officer, 12 ; S. &
R. 49 ; Ridgeway v. F. Bank of B. County, ib. 256.
The Bank of the State of Alabama, and its Branches, are the
property of the public, and there can be no doubt, that its
books are public writings, within the meaning of the rule,
and that where the books themselves would be evidence, if pro-
duced, sworn copies may be received. How far the entries on
the books of the Bank would be evidence, either for or against it,
is a question not now before us.
In the present case, a clerk of the Bank was permitted, from
memoranda which he had taken from the books, to give parol
evidence of the facts there stated, on the part of the Bank.
We understand the bill of exceptions to be, not that the clerk pro-
duced in Court, a copy from the books of the Bank, of the fact to
be proved, but that he had taken memoranda, or notes, from the
books, from which he was permitted to give parol evidence of
the facts, of which he had no knowledge, further than as he found
them recorded on the books of the Bank. For this error, the
Judgment must be reversed and the cause remanded.
HOUSTON V. FRAZIER.
1. L. was indebted to F., and in pa5Tnent, sold him a promissory note, but
without indorsement, on A. This note was collected of M. as an attorney,
but the suit thereon was in the name of L. and did not show that any one
else was interested therein. F. demanded the money of M. after he re-
ceived it, and while H., who was about to become L.'s administrator, was
present, infonning tlie latter that he should claim the money of him, if he
XI
82 ALABAMA.
Houston V. Frazier.
received it ; to which M. replied that he could not recognize the right of
any one to tlie money but L.'s administrator. H. administered, received
the money of M., and returned it in the inventory as a part of L.'s estate :
Hdd, that assumpsit for money had and received, would lie against H., in
his individual capacity ; that the notice, and subsequent receipt and appro-
priation of tlie money, being a conversion of it, rendered a further dwnand
unnecessary.
Writ of Error to the Circuit Court of Sumter.
The defendant in error declared against the plalntifFin assump-
sit, for money had and received. On the trial before the jury,
the defendant below excepted to the ruling of the Court. It is
shown by the bill of exceptions, that the plaintiff proved, in Sep-
tember or October, 1840, he paid a debt of Bryan Lavender, for
$215, and Lavender, in order to refund the same, in part, agreed
to sell to the plaintiff a promissory note on David M. Abbott,
and the note was accordingly passed to him, but without indorse-
ment. This note was collected by suit, by John W. Mann, an
attorney at law, but the record does not show, that any other per-
son was interested in its recovery, than Lavender, vi^ho was the
plaintiff. While the money was in the sheriff's hands, and after
he had paid it over to Mann, the plaintiff in this action demanded
it of Mann, but he refused to pay, assigning as a reason that he
knew nothing of his right to it, and could not recognize the title of
any one but Lavender's administrator. The plaintiff once de-
manded the money of Mann in the presence of the defendant, and
notified the latter, who it was understood was about to adminis-
ter, that he should claim the money of him, when he received it.
The money was not demanded, except as stated, before the
institution of this suit; nor did it appear that the defendant ever
refused to pay, or deny the plaintiff's right to the money, though
he returned the same in his inventory as the property of Laven-
der's estate.
The defendant's counsel prayed the Court to charge the jury as
follows : 1. If the money in question was collected by Mann, as
the property of Lavender, and the defendant received it as assets
of the intestate's estate, and so returned it, in his inventory, the
plaintiff cannot recover in this action. 2. To make the defend-
ant liable to an action, it was necessary for the plaintiff to show,
that he demanded the money of him, or that he had disclaimed a
JANUARY TERM, 1845. 83
'-^
Houston V. Frazier.
liability to pay the same. Both these charges were refused, and
the Court instructed the jury, that if the plaintiff agreed with
Lavender for the purchase of the note, and the money thereon
due, and the note was delivered to the plaintiff, and the defend-
ant was informed before he received the money, that the plaintiff
claimed it, then a special demand was not necessary, to entitle
the latter to maintain the action, and to recover the money, and
interest. The jury returned a verdict for the plaintiff, and judg-
ment was rendered accordingly.
W. H. Green, for the plaintiff in error, made the following
points : 1. The defendant below received the money as an agent,
or trustee, and a demand must have preceded the action. [Sal-
ly's adm'rs v. Capps, 1 Ala. Rep. N. S. 131; Stewart & Pratt
V. Frazier, 5 id, 114.] 2. The money being received by the de-
fendant, as administrator, and so returned in his inventory, the ac-
tion cannot be supported. [Yarborough, use, &c. v. Wise, ad-
ministrator, 5 Ala. Rep. 292.] 3. There was no privity of con-
tract between the plaintiff and defendant, and the action if main-
tainable at all, should have been brought against him in his repre-
sentative character. 4. As the money was collected for the de-
fendant's intestate, he did right in receiving it; the plaintiff pro-
duced no evidence of his title to it, and by not demanding it after
the receipt of it by the defendant, the latter might infer that he
had abandoned all claim to it. 5. The plaintiff should have pre-
sented his demand to Lavender's administrator, as a creditor of
the estate, and the defendant did not, by the receipt of money,
become personally chargeable with the debt and interest. [Por-
ter V. Nash, 1 Ala. Rep. 452.] 6. E ven admitting that the note was
delivered by Lavender to the plaintiff, the fair inference from the
delivery by him to Mann, is, that he again became its proprietor.
R. H. Smith, for the defendant in error, insisied — 1. In the
absence of direct proof, it is inferrable, that the note was trans-
ferred by Lavender to the plaintiff before suit brought. 2. Mann
peremptorily refused to pay the money to the plaintiff, without
reference to his right to it, saying he would pay none but Lav-
ender's administrator. This rendered a further demand of Mann
unnecessary. 3. The defendant retained the money, not as a
bailee, but under a claim adverse to plaintiff's, and with a full
84 ALABAMA.
Houston V. Frazier.
knowledge of it, and to maintain the action a demand was not ne-
cessary. 4. If the money was received as assets, and had been
so disposed of, and the estate of Lawrence was insolvent, or
finally settled, perhaps the plaintiff would be remediless; but the
facts do not show such to be the predicament of this case. 5.
The objection of a want of privity between plaintiff and defend-
ant, cannot be supported ; Mann might have been sued by the
plaintiff, and the defendant is in the same situation, and liable to
the same remedies. If the defendant has been guilty of a tort,
that may be waived and assumpsit maintained. 6. There was
no necessity for suing the defendant as administrator; if he did
not receive the money wrongfully, his conversion was tortious.
[2 Lomax Ex'rs, 273.] 7. If the action can be surported, the
right to recover interest necessarily follows. [Porter v. Nash,
1 Ala. Rep. 452.] The counsel also cited. Black v. Briggs, 6
Ala. Rep. 687; Stewart & Pratt v. Frazier, 5 Ala. Rep. 1 14.
COLLIER, C. J. — The action for money had and received,
has been assimilated to a bill in equity ; and it is said, that when-
ever the defendant has received money, to which the plaintiff is
in justice and equity entitled, the law implies a debt, and gives
this action quasi ex contractu. Hence it has been held, that the
plaintiff is entitled to recover, where he can show, that the de-
fendant has received money belonging to him under any fraud,
or pretence, [Cowp. Rep. 795 ; 2 Burr. Rep. 1008 ; 4 M. & S.
Rep. 478 ; Bogart v. Nevins, 6 Sergt. & R. Rep. 369; Mowatt,
et al. v. Wright, 1 Wand. Rep. 360 ; The Union Bank v. The U.
S. Bank, 3 Mass. Rep. 74 ; Murphy v. Barron, 1 H. & Gill's
258; Tevis v. Brown, 3 J. J. Marsh. Rep. 175 ; Guthrie v. Hyatt,
1 Harr. Rep. 447.] And there need be no privity of contract
between the parties, in order to support the action, except that
which results from one man having another's money, he has not
a right, conscientiously, to retain. [Eagle Bank v. Smith, 5 Conn.
Rep. 71 ; Hall v. Marston, 17 Mass. Rep. 579 ; Mason v. Waite,
id. 563.]
Where one receives money, to which a third person, whose
agent he professes to be, has no right, and he have notice not to
pay it over to him, an action for money had and received lies
against such agent. [Garland v, Salem Bank, 9 Mass. Rep. 408.]
But if it is paid over, with intent to pass it to the credit of the
JANUARY TERM, 1845. 85
Houston V. Frazier.
principal, before notice is given to tiie agent, in general, no action
will lie against the latter for its recovery. [Frye v. Lockwood,
4 Cow. Rep. 454 ; Fowler v. Shearer, 7 Mass. Rep. 14 ; Pool v.
Adkisson, 1 Dana's Rep. 117; Dickens v. Jones, G Yerger's Rep.
483; Elliott V. Swartwout, 10 Pet. Rep. 137; Edwards v. Had-
ding, 5 Taunt. 815; see also, 8 Taunt. Rep. 136; Cowp. Rep.
565; 3M.& S. Rep. 344.]
So it is laid down generally, that the plaintiff may recover in
any case where the defendant has, by fraud or deceit, received
money belongjng to him ; for he may waive the tort, and rely up-
on the contract, which the law implies for him. [2 Starkie's Ev.
109, 110, and cases there cited.]
We will now consider the case in reference to the principles we
have stated. It may be assumed that the note on Abbott became
the property of the plaintiff, by the agreement between Lavender
and himself; assumed, we say, because, whether such was the fact,
was an inquiry which was submitted to the jury, and their ver-
dict is an affirmafion of its truth. This question being disposed
of, it is clear that the plaintiff became entitled to the money col-
lected on the note ; and this although the action brought for its
recovery, was in the name of Lavender, without indicating up-
on the record the plaintiffs interest. The money in the hands of
Mann, was the property of the plaintiff, and his right to it was
not divested by the payment of the defendant. If the latter had
received it in his representative character, and it had been appro-
priated in the regular course of administration, before he received
notice of the plaintiff's claim, then he would not have been lia-
ble, upon the principle, that an agent, who receives money in that
character, is not answerable for it to a third person, if he has paid
it over to his principal before he has notice of the adverse claim.
Here, the plaintiff not only demanded the money of Mann, but
informed the defendant that it was his property, and he should claim
it from him, if he received it. True, the defendant had not then
administered, but he was about administering, and the remark
was made to him in view of such a state of things. This was
quite sufficient to protect the interest of the plaintiff, and should
have induced the defendant not to treat the money as assets of
his intestate's estate. Such an appropriation of it was a conver-
sion, clearly manifesting a disregard of the plaintiff's claim, and
amounted to a refusal to account with him. ^
86 ALABAMA.
McGehee v. McGehee.
It is a principle of law recognized by us, whenever the point has
been made, that an agent who collects money, in the course of
some lawful employment, is not liable to an action, until a demand
has been made, or something equivalent has been done. But the
notice in the present case, and the appropriation of the money was
equivalent to a demand, or, rather, showed a conversion of it,
and a determination not to pay it to the plaintiff; and in such case
the law holds a demand to be unnecessary.
In respect to the objection that the defendant should have been
charged in his representative character, we think it#s not well ta-
ken. If an administrator becomes possessed of personal proper-
ty, as a part of his intestate's estate, and after demand made,
converts it, either to his own purposes, or in the course of admin-
istration, an action of trover will lie against him, personally.
This rule is too well established to require the citation of authori-
ty to support it. If the law were otherwise, and an administra-
tor could Qnly be charged in his fiduciary character, the rightful
owner of a chattel might lose it, without remuneration, if the estate
were insolvent. The principle, in I'espect to a wrongful appro-
priation of money by an administrator, is precisely the same.
From this view, it results that the County Court did not misap-
prehend the law to the prejudice of the defendant below, and its
judgment is therefore affirmed.
McGEHEE V. McGEHEE.
1. The Court will not permit the sheriff to amend his return, after judgment
by default, so as to show that the writ was not executed, unless it were
sho^vn that irreparable injury would follow from permitting the judgment to
stand, and tlien only upon terms which woidd not work a discontinuance.
It does not vary tlie case, that the motion is made by the defendant
2. Whether the remedy in such a case must not be sought by mandamus, if
the Court below improperly refuses to permit the amendment — (^uere7
Error to the Circuit Court of Lowndes.
JANUARY TERM, 1845. 87
HufFaker v. Borinor.
Hayne, for the plaintiff in error.
ORMOND, J. — After judgment rendered in the Court below,
by default, the defendant moved the Court, to permit the sheriff
to amend his return upon the writ, upon his suggestion, that it
was returned, executed, by mistake, and that the writ had never
been served on the defendant. The Court refused to permit the
return to be amended, and the defendant excepted.
In Watkins v. Gayle, 4 Ala. Rep. 153, we determined that the
sheriff had not the right to amend his return after a judgment,
when the effect would be to make the judgment erroneous. Here,
the motion was made by the defendant ; but we do not perceive
that the case is materially varied, by the substitution of the de-
fendant, for the sheriff, as his consent could doubtless always be
obtained. If it were shown that irreparable injury would be sus-
tained, by permitting the judgment to stand, as for example, if it
were made to appear, that the sheriff could not respond in dama-
ges, it would be the duty of the Court to set aside the return of
the sheriff, upon such terms as would prevent a discontinuance
of the action.
We have not thought it necessary to consider, whether error
would lie in such a case as the present, or whether redress in a
proper case must not be sought by mandamus, because we are
satisfied, that the decision of the Court was correct.
Let the judgment be affirmed.
HUFFAKER v. BORING.
1. In the complaint before a justice of the peace, it was alledged, that the
plaintiff " has the peaceable possession of the north east quarter of section
five, township eight, range eleven, east, in the Coosa land district, in the
west part of said quarter, being and lying in the State and county aforesaid,
dwelling house and other buildings, and fifty acres of land cleared, more
or less ;" and after alledging the forcible entry and detainer of the premi-
se, the complaint proceeds thus, viz : " detaining and holding the same by
88 ALABAMA.
Huffaker v. Boring.
such words, circumstances, or acting, as had a material tendency to excite
fear or apprehension of danger." Held — 1. That the description of the
premises was sufficiently specific. 2. That the allegation of force M'as as
direct and full as the statute requires.
2. A witness, on the trial of a forcible entry and detainer, produced certain
articles of agreement, entered into between himself and the plaintiff, by
which the latter stipulated to keep him in the peaceable possession of the
premises in question, until the first day of the succeeding year, (1844 ;) at
which time witness undertook to deliver peaceable possession of the land
to the plaintiff. Witness further stated, that he received an equivalent for
the undertaking on his part, and accordingly gave up the possession for the
plaintiff's benefit, even before the day agreed on. One of the subscribing
witnesses also proved tlie execution of the agreement Held, that tlie writ-
ing was admissible to show the plaintiff's possession, and how acquired ;
and that its execution might be proved, either by a party to it, or a subscrib-
ing witness.
3. The testimony of a witness, in a proceeding for a forcible entry and de-
tainer, that he " had fodder on the premises by plaintifi''s leave, and plain-
tiff told witness, that he could have the land, or part of it, during the year,"
&c., is admissible as to the first branch, viz : that witness had fodder on
the premises by plaintiff's permission ; because this tends to show an actual
possession ; but inadmissible as to tlie second, because it amounts to nothing
more than a mere assertion of a right by the plaintiff. Collier, C. J.
thought the testimony inadmissible in toto.
4. A verdict and judgment in the following words, to wit: "We, the jury,
find for the plaintiff. Upon which judgment passed for the plaintiff, for
the premises, and that defendant, George L. Huffaker, pay all costs," though
not formal, does not authorise a reversal of the judgment on certiorari.
Error to the Circuit Court of Cherokee.
This was a proceeding under the statute, at the suit of the de-
fendant below, for a forcible entry and detainer. The complaint
states, that the plaintiff below " was in peaceable possession of
the north east quarter of section five, township eight, range elev-
en, east, in the Coosa land district, in the west part of said quarter,
being and lying in the State and county aforesaid, dwelling house
and other buildings, and fifty acres of land cleared, more or less."
Further, after alledging the forcible entry and detainer of the
premises, the complaint then alledges the " detaining and holding
the same, by such words, circumstances, or actings, as had a ma-
terial tendency to excite fear, or apprehension of danger."
JANUARY TERM, 1845. 89
Huffaker v. Boring.
The defendant, previous to pleading before the justice, moved
to quash the complaint for defects apparent thereon ; but this mo-
tion was overruled, and the case submitted to a jury, who return-
ed a verdict subscribed by their foreman, in these words ; « We,
the jury, find for the plaintiff. Upon which," (as the justices en-
try recites,) "judgment passed for the plaintiff for the premises,
and that the defendant, George L. Huffaker pay all costs." On
the trial, objections were made to certain evidence adduced by
the plaintiff. It appears that a witness introduced by him stated,
that he had been in possession of the premises for the last four or
five years, that he became bound to give the possession to plain-
tiff, and that he did give it up for his benefit, with the expectation
that a third person, (whose name he mentioned,) would occupy it
as a tenant. The witness was permitted to introduce, and read
articles of agreement between the plaintiff and another of the first
part, and himself of the second part, by which the parties of the
first part, undertook to keep the party of the second part in the
peaceable possession of all the premises, on the north-west side of
a creek, running through the north-east quarter of section five,
township eight, and range eleven, east, in the Coosa land district,
until the 1st day of January, A. D. 1844 ; at which time the par-
ty of the second part, obliged himself to deliver peaceable posses-
sion of the same land, to the parties of the first part. This agree-
ment is dated the 8th April, 1843, and is signed and sealed by the
respective parties. The defendant objected to the admissibility
of this writing generally, and particularly, because it was irrele-
vant, and not proved : the justice was also requested to cause the
same to be withdrawn from the jury ; but the objections and re-
quest were denied, and the witness was permitted to state that he
gave up the possession for the benefit of the plaintiff previous to
the first day of January, 1844, and that the plaintiff had paid him
forty dollars, and the rent of the land one year, for the possession.
Plaintiff then offered another witness, who testified, that plaintiff
was never known, by him, to be in possession of the premises.
Plaintiff was then permitted to show, notwithstanding an objec-
tion by the defendant, that the witness had fodder on the premises,
by his permission, and that the plaintiff told the witness, that he
could have the land, or part of it, during the year 1844.
Plaintiff was also permitted to introduce one of the subscribing
witnesses to the written agreement above recited, to prove the
12
90 ALABAMA.
Huffaker v. Boring'.
same ; he also proved that the defendant told the plaintiff, that he
could do nothing with the person from whom the latter acquired
possession, and that the plaintiff might make the best trade he
could with him.
The case was removed by certiorari to the Circuit Court,
where the judgment of the justice of the peace was affirmed, and
to revise the latter judgment, a writ of error is prosecuted to this
Court.
S. F. Rice, for plaintiff in error, made the following points :
1. The complaint is insufficient ; it does not describe the lands in
controversy, with such certainty as to identify them, nor does it
alledge force in the entry and detention. 2. The articles of agree-
ment, and the evidence explanatory thereof, together with all the
oral testimony objected to, was improperly allowed to go to the
jury. 3. The verdict does not support the judgment, and the
judgment itself is too defective to authorize an execution. He
cited McRae v. Tilman, et al. 6 Ala. Rep. 487; Clay's Dig. 252,
§ 13.
No Counsel appeai'ed for the defendant in error.
COLLIER, C. J.— In Wright v. Lyle, 4 Ala. Rep. 112, the
complaint stated, that the plaintiff " was in possession of a certain
messuage and parcel of land, with the appurtenances, containing
thirty acres, be the same more or less, adjoining Thomas B. Watts
and others, in the county of De Kalb, until James C. Wright, on
&c., unlawfully entered thereupon, and forcibly and unlawfully de-
tains and keeps possession of said land, and appurtenances, &c."
This Court determined that the description of the land was not suffi-
ciently definite, but held, that the allegation of force showed an
unlawful detainer. In McRae v. Tilman &; others, 6 Ala. Rep.
486, the lands were described in the complaint, as " a certain mes-
suage with the appurtenances and lands, situate, lying and being
in, and a part of, township 14, range 1, west, and section 9 S. W.
qr. 80, lying in the county aforesaid, having had lawful and peace-
able possession of the said messuage and lands for the space of
five years," &c. Here, too, it was determined that the descrip-
tion of the land was too general ; and not being aided by the
verdict and judgment, the proceedings before the justice were
set aside.
JANUARY TERM, 1845. 91
HufFaker v. Boring.
The boundaries of the land alledged to be forcibly entered up-
on, it is said, need not be specially set out, and a warrant was ad-
judged to be sufficiently certain, which charged the entry '' by
Moore on one dwelling house, one kitchen, one smoke house, one
tobacco house, one stable, one com house, and sixty acres of ara-
ble land, twenty acres of pasture land, and forty acres of wood-
land, lying in the county of Madison, on the waters of Muddy
creek ; all of which was in the peaceable possession of Massie.''
[Moore v. Massie, 3 Litt. Rep. 296.]
In respect to the quantum of force necessary to sustain the pro-
ceedings for a forcible entry and detainer, it has been held, that
the bare entry on the possession of another, (with or without title,)
without his consent, is, in contemplation of law, a forcible entry.
[Brumfield v. Reynolds; 4 Bibb's Rep. 388 ; Henry v. Clark, id.
420; Chiles & Co. v. Stephens, 3 Marsh. Rep. 347.] So, a mere
refusal to restore the premises, is in itself force, within the statute.
[Ewing V, Bowling, 2 Marsh. Rep. 35 ; see, also, Swartzwelder
V. U. S. Bank, 1 J. J. Marsh. Rep. 44.]
Our previous decisions which have been cited, we think, are
clearly distinguishable from the case now before us. In the first,
the premises were described as adjoining Watts and others ;
whether on the north, south or where else was not stated, nor was
the locality of Watts shown; and for any thing appearing to the
contrary, he may have had a dozen tracts of land in De Kalb
county. In the second case, a messuage being in and a part of a
quarter section, was alledged to be forcibly detained, without stat-
ing how much, or where situate within the same. But in the case
at bar, the premises are described as fifty acres, situate within
the west part of a quarter section. This description, we think,
is sufficiently specific — perhaps as much so as was practicable,
unless its precise location could have been ascertained by a sur-
vey ; and if the party in possession was perverse, it would not be
easy to make a survey against his consent.
The allegation as to the forcible entry and detention, alledges
force, quite as directly and fully as the law requires. This is
so clear, from a comparison of the complaint with the statute, as
to relieve us from the necessity of endeavoring to make it plainer.
The second section prescribes the cases, in which forcible entry
and detainer is the appropriate remedy, and the seventh section
points out the essential constituents of the complaint. [Clay's
Dig. 250,251.]
92 ALABAMA.
Huflfaker v. Boring.
The written agreement, and all the evidence relating thereto,
and to the possession which it was intended to confer on the plain-
tiff, were clearly admissible. The object of this evidence, was
merely to show the peaceable possession of the plaintiff, at the
time the entry was made by the defendant, and its effect was to
prove, that t!.e person who relinquished the possession, had him-
self occupied the premises for several years, and parted with them
to the p'aint ff under a contract. In this point of view, the defend-
ant cannot be heard to object, that he was not a party to the writ-
ing, any mo;e than the defendant in an action to try the title,
could oppose the introduction of the documentary evidence of the
plaintiff, because it did not emanate from himself, or he was not
a party to it. As to the execution of the writing, this has been
proved by the party who executed it, and thereby parted with his
interest in the premises to the plaintiff; in addition to this, one of
the subscribing witnesses afterwards proved it. Its genuineness,
then, was twice established. [Falls & Caldwell v. Gaither, 9
Porter's Rep. 605.]
But the evidence that a witness " had fodder on the premises
by plaintiff's leave, and plaintiff told witness that he could have
the land," &c., was inadmissible to prove the plaintiff's possession,
or the defendant's entry. It was not offered as the declaration of
a party constituting part of the res gesta, but as proof of an inde-
pendent fact. To admit its competency, would, in my opinion,
be to hold, that a party's mere claim of right, and attempt to ex-
ercise ownership, are allowable to prove his peaceable possession.
Such evidence, even if it tended to establish the fact, would be
obnoxious to the objection, that it was a mere narration of what
the plaintiff himself said.
It is true, that the verdict and judgment are not very formal,
yet we think they are entirely sufficient. In finding for the plain-
tiff, the jury affirm that his case was made out by proof, and that
the defendant's plea is false ; and the legal effect of the judgment
is, that the plaintiff recover the premises. There was no neces-
sity for an express award of execution for the costs, or to restore
the possession. These were but consequences of the judgment,
as provided by the statute. [Clay's Dig. 252-3, §§ 13, 14 ; see,
also, Wheatly v. Price, 3 J. J. Marsh. Rep. 168.]
For the admission of improper evidence, the judgment of the
Circuit Court is reversed, and the cause remanded, that such fur-
ther proceedings may be had as are agreeable to law.
JANUARY TERM, 1845. 93
Morrison v. Spears,
GOLDTHWAITE, J.— As to the point upon which this judg-
ment is reversed, my opinion is, that the plaintiff could properly
prove, that the witness, or, indeed, any other person, had fodder
upon the premises in controversy, by his leave, because this was
proof of an actual possession of the land. Whether the forcible
entry of the defendaftit was an intrusion on this possession, or on
that of some other person, or by virtue of a previous occupancy
by himself, was matter for him to show; but the proof by the plan-
tiff was regular, though very weak. The evidence of his wil-
lingness to permit the witness to occupy the land for the year, in
which the trial was had, was incompetent, as showing nothing
more than the assertion of a right to rent the land. This asser-
tion neither proved, nor tended to prove, an actual possession, un-
less accompanied by some act connected with the assertion. In
this opinion I am authorized to state the concurrence of Judge
Oemond.
MORRISON V. SPEARS.
1. Reference may be made in the declaration to a previous count, for dates,
&c., which will be sufficient, although such previous count be held bad on
demurrer.
2. A count which does not show, either by an express allegation, or by re-
ference to some other count, that the note sued on was due, when the suit
was brought, is bad on general demurrer.
En'or to the Circuit Court of Bibb.
Assumpsit by the defendant, against the plaintiff in error, upon
an indorsed note, of which he was the maker. The declaration
contained four counts, all of which were demurred to, and the de-
murrer sustained to all, except the third count.
That count charged, that the defendant at, &c., to wit, on the
day and year aforesaid, made his certain other promissory note,
&c. &c., charging the indorsement of the note to the plaintiff, on
94 ALABAMA.
Morrison V. Spears.
the 16th January, 1843, without alledging when the note was
payable, but stating, " that the period had now elapsed."
Upon the trial of the issue, it appeared in evidence, that the in-
dorsement to the plaintiff was made on the 10th January, 1843,
and the defendant thereupon objected to the indorsement going to
the jury, because of the variance, which the Court overruled ; to
which the defendant excepted. He now assigns for error, the
overruling the demurrer to the third count, and the admission of
the indorsement as evidence.
T. B. Clarke, for plaintiff in error.
ORMOND, J.— The reference in the third count of the dec-
laration, to the previous counts, for the date of the promissory
note, is sufficient, although the previous counts were held insuffi-
cient on demurrer, as the allusion was, to the fact distinctly stated
in the first count, of the day on which the note was made, and
which, therefore, need not be repeated in the succeeding counts,
further, than by reference to the allegation previously made.
[Mardis' Adm'r v. Shackelford, 6 Ala. Rep.]
The count is still, however, defective, in not alledging, either
positively in the count itself, or by reference to a preceding one,
when the note became due. The allegation, " which period has
long since elapsed," does not tend to show, that the note was due
when the suit was brought, as the only point of time to which
the allegation can refer, is the date of the note. If, therefore,
it were admitted, that an allegation that the note was due at the
time the suit was brought, was sufficient, no such allegation is
made here. This count was, therefore, bad on general de-
murrer.
The objection in regard to the variance between the time of the
indorsement alledged, and that proved, need not be noticed, as
the case must be remanded, and it is not probable it will again
occur.
Let the judgment be reversed and the cause remanded.
JANUARY TERM, 1845. 95
Alford V. Samuel.
ALFORD V. SAMUEL.
1. Where the plaintiff, in a summary proceeding for the failure to pay over
money collected by a sheriff, on & fieri facias, recovers a verdict and judg-
ment for the amount of the damages given by statute, as a consequence of
the sheriff's default, and no more, the defendant cannot object on error,
that the verdict should have been for the amount of \hefi. fa. also.
Writ of Error to the County Court of Benton.
W. B. Martin, for the plaintiff in error.
S. F. Rice, for the defendant. ^
COLLIER, C. J. — This was a proceeding by motion against
the sheriff of St. Clair, for the failure to pay over money collect-
ed by him on a^en/aaas, atthe suit of the defendant in error,
against Boyt, Houston and Gilbert. The notice, and the judg-
ment which recites and adopts it, are very special in their reci-
tals, &c. But it is objected that the verdict and judgment there-
on, cannot be supported, because, although all the allegations of
the notice are affirmed to be true, the verdict is only for the amount ^
ofthe damages given by statute as a consequence of the sheriff's
default.
This objection questions the correctness of the judgment, be-
cause it shows, that the plaintiff below was entitled to recov-
er not only damages, but the amount of the execution also. This
error is beneficial to the sheriff, and consequently not available
for him. See, also, Moore v. Coolidge, 1 Porter's Rep. 280.
The judgment is consequently affirmed.
96 ALABAMA.
Gamer v. Green & Elliott
GARNER V. GREEN &, ELLIOTT.
1. When an act which is continuous in its nature, is proved to exist, its con-
tinuance may be presnnied until the contrary is shown.
2. G. was the owner of a ferry over the Coosa river, which was managed by
E. for a share of the profits. During high water, when the ferry was im-
passable, E. was in the habit of taking the boat, and the hand who assisted
him at the farry, and conveying passengers over a creek, which emptied
into tlie river above the ferry, to enable them to cross the river at another
point. Upon one of these occasions, a waggon with its lading, was lost,
by the negligence of the ferryman. Held, that to show that the ferry over
the creek, was an appendage of the ferry over the river, it was admissible
to prove the transportation of travellers, by E. across the creek, as well af-
ter, as before, the act which occasioned the loss.
Error to the Circuit Court of Benton.
Trespass on the case, by the plaintiff in error, against the de-
fendants in error, as common carriers.
Upon the trial, it appeared that the defendant, Green, was the
owner of a ferry across the Coosa river, near the mouth of
Beaver creek, and that Elliott was his ferryman. That when the
water was too high to use the ferry across the river, the ferry
flat used in conveying persons, and property, across the Coosa,
was employed, under the management of the ferryman, from time
to time, for a period of five years, in transporting persons, and
property, over Beaver creek, near where the same empties into
the Coosa. That the plaintiff came to the ferry over the Coosa,
and the water being too high to cross, Elliott, the ferryman of
Green, proposed to take him, his wagon, &c., across the creek,
by which means he could, at another ferry, cross the river; that
in atttempting to do so, by his neglicence, the waggon, team, and
load were lost. Elliott managed the ferry for Green, across the
Coosa, for a share of the profits. Green was not present when
the accident happened, but Uved within a quarter of a mile of the
ferry.
The plaintiff then offered to prove by a witness, that about
twelve months alter the commencement of this suit, the ferry-
JANUARY TERM, 1845. 97
Garner v. Green & Elliott
man of defendant, had conveyed him during high water, across
the mouth of Beaver creek, and charged ferriage, and the coun-
sel for the plaintiff, admitting that he could not connect this testi-
mony, further, than by the testimony already given in,the Court, on
motion of the defendant, excluded it from the jury ; which is the
matter now assigned for error.
Rice, for plaintiff in error, argued, that^the evidence rejected,
was relevant ; the object being to connect Green with the ferry-
man, in transporting passengers, and property, across Beaver
creek; and to authorize the jury to infer, that Green knew and
approved of it. For this purpose, proof of his acquiesence, after
the loss here sued for, should have been given in evidence, for
the purpose of strengthening the evidence previously offered.
He cited 8 Porter, 70, 511 ; 1 Ala. Rep. 83 ; 3 id. 16, 371 ; Les-
ter v. The Bank of Mobile, at the present term.
W. B. Martin, for defendant in error.
ORMOND, J. — The question to be determined, is, whether
the evidence excluded by the Court, was relevant. It appears
that Green was the owner of a ferry over the Coosa river, which
was managed by Elliott, for a share of the profits. It also ap-
pears, that during high water, when the ferry was impassable,
Elliott was in the habit of taking the boat, and the hand who as-
sisted him at the ferry, and carrying passengers over a creek,
which emptied into the river above the ferry, to enable them to
cross the river at a difTerent point. In an attempt to carry the
plaintifTs waggon across the creek, it was lost, with its lading,
and the effort at the trial, was, to fix the liability on Green. This
was attempted to be done by proving facts, from which the parti-
cipation of Green, in the profits, might be inferred. Thus, it was
proved, that Green lived within a quarter of a mile of the ferry —
that Elliott had frequently before transported travellers across the
creek, during high water, and had done so about a year after-
wards. The evidence of the act subsequently to the loss, was
objected to, and excluded by the Court, and this is the only ques-
tion presented upon the record for revision.
Presumptive evidence, is founded upon the connection, which
is found by experience, to exist, between the facts, which are prov-
13
98 ALABAMA.
Garner v. Green & Elliott.
ed, and those which are intended to be proved. The presump-
tion intended to be drawn from the facts in proof, in this case, is,
that from the contiguity of the residence of Green, to the ferry,
he knew of the acts of Elliott, in transporting passengers and pro-
perty over the creek, during high water, and from this knowledge,
the further presumption is attempted to be derived, that he would
not suffer the use of his property in such a hazardous employment,
without a participation in its benefits.
We are not prepared to say, that the evidence was admissible
upon this theory. Presumptions which may properly be made,
are only justifiable, where they are the natural, or necessary con-
sequence of the acts proved, and exclude every other reasonable
hypothesis. Yet it is by no means unreasonable to suppose, that
Green, may have allowed his ferryman the use of his boat, and
hand, as a gratuity, or perquisite, upon these extraordinary occa-
sions. The conclusion is not therefore sufficiently certain, to be
the basis of human conduct, either in the jury box, or in the ordi-
nary transactions of common life. And in this view of the case,
the evidence of the acts of Green, both before and after the act,
which occasioned the loss, would be alike inadmissible.
There is, however, one aspect of the case, upon which the
testimony should have been received. It appears that Green, and
Elliott, were jointly interested in the profits of the ferry, upon the
Coosa, and to prove that this custom of transporting passengers
and property over the creek, was a mere appendage of the prin-
cipal ferry, the evidence was clearly admissible. When a fact,
which in its nature is continuous, is proved to exist, its existence
subsequently, may be presumed. Thus when a partnership is
once proved to exist, its continuance will be presumed, until the
contrary is shown, and a fortiori, where a partnership is proved
to exist at two different periods of time, it will be presumed to
have existed during the intervening period. [3 Starkie's Ev.
1077.]
The fact that the ferry over the creek, during high water, was
but a temporary removal of the ferry over the Coosa, could, like
any other fact,be proved by circumstantial evidence, and any act,
tending to establish that fact, whether it happened before, or af-
ter, the act which occasioned the loss, would be legitimate testi-
mony ; the fact to be proved being continuous in its nature, and
having no necessary, or immediate connection with the point of
JANUARY TERM, 1845. 99
Evans, Adm'r, v. Mathews.
time when the act happened, which occasioned the loss. In Mc-
Leod V. Walkley, 3 Car. & P. 311, it was held, that an admis-
sion by one, that he was an editor of a paper upon one day, was
no evidence that he was editor on a subsequent day. This de-
cision must be based upon the fact, that the business is not neces-
sarily continuous; but we apprehend, that if it had been proved
that he was editor at two different periods of time, a presumption
would have arisen, that he was so, during the intervening space.
What influence the testimony excluded would have had upon
the jury, it is not our province to determine ; it may be in itself
very weak, and not entitled to much consideration, as it might
seem, that if the previous acts proved, did not establish the unity
of the two ferries, the single subsequent act, would not exert any
influence. This, however, is a speculation we cannot indulge
in; if the testimony was relevant, it was improperly excluded.
Such we have seen is the fact, and the judgment must be there-
fore reversed, and the cause remanded.
EVANS, ADM'R, v. MATHEWS.
1. Where the Orphans' Court orders the sale of the real estate of an intestate,
upon the petition of the administrator, alledging that the personal estate
was insufficient to pay debts, the administrator, although one of the heirs,
cannot object on error, that the evidence on which the decree of the Or-
phans' Court was founded, was ex parte; or that the record does not show
that the heirs residing in the county had personal notice that the petition
was filed ; or that the Orphans' Court, instead of appointing a guardian for
one of the heirs, should have required that heir to select one for herself.
These are irregularities that do, not show a want of jurisdiction in the pri-
mary Court, and cannot affect the administrator, and if important, he should
have prevented them by conducting the proceeding according to law.
2. The Orphans' Court ordered that an administrator, who made, what was
supposed an imperfect report upon the sale of real estate under its decree,
should be committed, until he made one more perfect ; a report was accord-
inly made: Hdd,\ha.t the order of commitment, whether erroneous or not,
furnished no ground for the decree which directed the sale.
100 ALABAMA.
Evans, Adm'r, v. Mathews.
3. An equitable title may be sold under a decree of the Orphans' Court, and
the purchaser will stand in the same predicament, as to title, as the heirs
did.
Writ of Error to the Orphans' Court of Wilcox.
The plaintiff in error filed his petition in the Orphans' Court, as
the administrator of Thomas Evans, dec'd, late of Wilcox county,
in which he represented that the personal estate of his intestate,
was insufficient to pay the intestate's debts; and alledging that he
died siezed and possessed of a tract of land, (particularly describ-
ed,) situate in that county, which should be sold and made assets
for the payment of debts. Petitioner further stated, that the in-
testate left three sons, to wit: himself, John Evans and Charles
Evans, and two daughters, to wit: Eliza, the wife of James Bat-
tle, and Carolina Evans; the three former reside in Wilcox, and
the two latter in Mobile ; all of whom, with the exception of Car-
olina, are of full age. The petition concludes with a prayer, that
such proceedings may be had, as the statute prescribes, in order
that the real estate of the decedent may be sold, &c.
The Court made an order, describing the land, reciting the ob-
ject for which a sale was asked, and directing that publication be
made forty days in a newspaper, requiring all persons interested
to appear, &c., and show cause why the prayer of the petition
should not be granted.
On the day designated, a decree was rendered, reciting the
substance of the petition, the order thereon, stating that Wm. C.
Gilmore had been previously appointed a guardian for Carolina
Evans, and had filed his answer, denying all the allegations of
the petition, and the other heirs had been served with personal
notice of the pendency of the proceeding. The decree also af-
firms, that the necessity of a sale appeared by proofs, regularly
' taken and filed, as in Chancery cases. Thereupon, the petitioner
was ordered to sell the land in question, on a credit of six months,
the purchaser giving bond with good and sufficient surety, &c.;
and that he make report, &c.
"^ere is no deposition or other evidence found in the record,
but the affidavit of J. P. Fairly, verified before the clerk of the
Court; at the foot of which it is stated that it is taken by consent
JANUARY TERM, 1845. ' 101
Evans, Adm'r, v. Mathews.
of all parties interested, subscribed by two or three of the heirs
or their representatives.
The land was sold, as required by the decree, and the defend-
ant in error became the purchaser, and executed his bond, paya-
ble six months after date, with surety. These facts being report-
ed to the Orphans' Court, they were directed to be recorded, and
the petitioner was ordered to make title to the purchaser, when
his bond should be paid, &c.
After the decree of sale, the administrator objected to the
sale to Mathews, on the ground that the land was a part of a 16th
section, of which his intestate became the purchaser, at a sale by
the commissioners, that full payment had not been made there-
for, or if it had, a patent had not been obtained by the intestate,
in his lifetime, or his heirs, since that event. But these objections
were overruled by the Court.
Bethea, [for the plaintiff in error, cited Simpson's adm'r v.
Simpson, Minor's Rep. 33 ; 5 Stewt. & P. Rep. 17,
Sellers, for the defendant, cited Clay's Dig. 525, § 2 1
COLLIER, C. J. — The supposed irregularities which have
been insisted on by the plaintiff in error, may be thus stated: 1.
The evidence on which the decree of the Orphans' Court was
founded, is ex parte, not being assented to by all the heirs. 2.
The record does not show that the heirs residing in the county
had personal notice that the petition was filed. 3. The first re-
port of a sale, which was made by the administrator, should have
been received by the Court, and he should not have been com-
mitted until he made a second, on which the final order was made.
4. The intestate, or his heirs, had no title to the land that could
be sold, under a decree of the Orphans' Court ; and, 5. Instead of
appointing a guardian for Carolina Evans, she should have been
called on to select one herself.
It must be observed, that the administrator who was the actor
in the proceedings in the Orphans' Court, is here complaining,
and it is incumbent upon him to show, not only that errors have
there been committed, but that they are such as prejudice him, or
at least affect the title, which the defendant acquired by his pur-
chase. Assuming this as a postulate, and neither the first, second
102 » ALABAMA.
Evans, Adm'r, v. Mathews.
or fifth points, conceding them to be well founded in fact, and as
abstract legal propositions, indisputable, can avail the plaintiff.
We have often held, that if in an application for the sale of the real
estate of a decedent, the jurisdiction of the Orphans' Court is es-
tablished, a decree rendered, and the proceedings consequent
thereupon, regular, the purchaser's title will not be divested, al-
though the decree should be reversed. And the same result will
follow, although the heirs may not have been served with a no-
tice of the petition, and the petitioner has failed to comply with
the directions of the law, as to matters to be observed subsequent
to the sale. Further, the reversal of the decree for error in the
record, only entitles the successful party to the purchase money,
but the purchaser shall hold the property. [Wyman, et al. v.
Campbell, et al. 6 Porter's Rep. 219; Perkins Ex'rs. et al. v. Win-
ter's adm'rx, et al. 7 Ala. Rep. 855.] This being the case, the
defendant has no interest in litigating these points ; no matter
what may be the judgment of the law upon them, the plaintiff can
recover nothing of him, or defeat his title, unless the jurisdiction
of the Orphans'^ Court, could be successfully assailed. This has
not been attempted, and our impression, from an inspection of
the record, is, that such an effort would be vain.
It might also be answered, to the objections we are consider-
ing, that if they are errors, they are attributable to the plaintiff —
it was his duty to have prevented them, by conducting the pro-
ceedings with regularity, and he cannot be permitted to urge
them, to annul a decree i-endered at his own instance
If it were granted that the report first made by the plaintiff,
correctly stated the facts, and authorized the final order, and that
his commitment until he made a second, was oppressive, and ir-
regular, and still it would furnish no ground for a reversal of the
decree. It was a m^iier occmnng post factum, and if the plain-
tiff objected to it, he should have interposed an objection while it
was in fieri. As the result was legal, if the process by which it
was obtained were set aside, the purchaser would still be secure
in his title.
In respect to the fourth point made by the plaintiff in error, with-
out stopping to inquire, whether, if available under any circum-
stances, he conld urge it, we need only remark that in Perkins' Ex.
et al. V. Winter's Adm'rx, et al., (supra,) we held, an equitable
title could be sold under a decree of the Orphans' Court, and the
JANUARY TERM, 1845. 103
Blackman v. The Branch Bank at Mobile.
purchaser would stand in the same predicament as to the title, as
the heirs did. We are, however, by no means certain, that the
title of the intestate was not legal.
This view is decisive of the case, and the decree of the Or-
phans' Court, is affirmed, so far as the writ of error in the present
case could present it for revision.
In the transcript, there is a copy of a bond executed by all the
heirs of the intestate, including the administrator, reciting that
the writ of error was sued out by them, and conditioned for its
prosecution, &c. If the writ of error was such as the bond re-
cites, the result would be such as announced, and it is therefore
unnecessary to inquire whether the writ might not be amended so
as to make it conform to the bond.
BLACKMAN v. BRANCH BANK AT MOBILE.
1. A notice for judgment, by motion, made by one assuming to be President
of the Bank, is sufficient, whether he be President of the Bank, de jure, or
not, if the act is adopted by his successor, who is legally President of the
Bank.
Error to the Circuit Court of Dallas.
Motion, by the Bank, for judgment on a note, made by Xosiah
Blackman, payable to Billups Gayle, Cashier, or bearer, negotia-
ble and payable at the Bank.
The defendant appeared and pleaded, that Edmund Harrison,
whose name is signed to the notice, was not, at the date of said
notice. President of said Branch Bank, but that one Theophilus L.
Toulmin, was at that time President of the Bank. To this plea
the plaintiff demurred, and the Court sustained the demurrer.
The defendant also pleaded a set off, and issue being joined
thereon, the jury .found a verdict for the plaintiff, upon which
judgment was rendered. The defendant now assigns for error —
104 ALABAMA.
Borland v, Mavo.
1. The judgment of the Court, in sustaining the demurrer to
the plea.
2. The plaintiff had not such an interest in the note, as to sus-
tain a motion on it.
Geo. Gayle, for plaintiff in error, cited 3 Ala. Rep. N. S. 186.
ORMOND, J.— In Curry v. The Bank of Mobile, 8 Porter,
373, we held, that the notice of an intended motion for judgment,
might be given by an attorney of the corporation. The plea, in
this case, is founded upon the supposition, that as Mr. Harrison
was out of office at the time notice was issued, it was invalid.
The charter requiring the President of the Bank to give notice,
does not contemplate that he should do it in person, but that no-
tice shall be given under his direction. The notice, in this case,
was issued under the direction of Mr. Harrison, acting as the
President of the Bank, and whether he was President, de jure,
of the Bank or not, is wholly unimportant, as the act was affirm-
ed by his successor.
The objection that it does not appear from the record, that
the Bank had the legal title to the note, is cured by statute. See
the case of Crawford v. The Branch Bank of Mobile, at the pre-
sent term.
Let the judgment be affirmed.
BORLAND V. MAYO.
1. As the plaintiff in execution, if succesful upon the trial of the right of pro-
perty, is entitled to a return of the specific thing, which was delivered to
the claimant, or its assessed value, it is allowable for him to offer evidence
to the jury, to show what was its value at the time of the trial.
2. The defendant in execution made a sale and conveyance of his entire es-
tate to the claimant, and the former made certain statements to his credi-
tor to induce him to accept the claimant for his debtor: Hddy that as these
statements were no part of the res gesta, viz: the sale and conveyance, the
JANUARY TERM, 1845. 105
Borland v. Mayo.
creditor to whom they were made could not be allowed to narrate them as
evidence.
3. On the trial of the right of property, the consideration of the cause of ac-
tion on which the judgment was recovered, is not a matter in issue, yet if
evidence to this point has been admitted, at the instance of the plaintiff in
execution, a judgment in his favor will not, for that reason, be reversed ;
unless it appear that the claimant was prejudiced by its admission.
4. With the view of showing that a sale of property on long credits was
fraudulent, by reason of the inadequacy of the price agreed to be paid, it is
permissible to prove, that the price stipulated is less than the property in
question would have commanded, on the time given.
5. The declarations made by a vendor, previous to the sale, are admissible to
contradict his testimony given on the trial of a cause in which the bona
fides of tlie sale is drawn in question.
6. The declarations of a vendor are admissible against his vendee, where the
purpose of botli was to consummate a fraud by the sale.
7. Where tlie vendor of a plantation and slaves, in giving testimony, with a
view to support the sale, stated that he acted as tlie vendee's overseer, it
was allowable for tlie adverse party to inquire of another witness, whether
he ever knoAv the vendor to act as an overseer of tlie vendee.
8. Evidence of declarations made by a defendant in execution, which are not
part of the res gestcB, are not admissible upon the trial of the right of pro-
perty against tlie claimant, who deduces a title from the defendant — ^the de-
fendant in execution is himself a competent witness.
9. With the view of showing the transaction to be fraudulent, it is competent
to show that the vendee, who purchases from his son-in-law all his estate
(which is a large one,) even on time, was himself greatly indebted at the
time of the purchase.
10. After the plaintifFhas introduced his evidence, the defendant his, and the
plaintiff rejoined, it is then a matter of discretion whether the Court will
allow the defendant to adduce further testimony.
11. Where the vendor of property remains in possession, his declarations in
respect to tlie same, are evidence against the vendee.
12. If a debtor in failing circumstances makes a transfer of his property,
which is intended, both by the vendor and vendee to prevent what they
consider a sacrifice by sale under execution, and thus enable the vendor,
afterwards to give a preference to his own proper creditors over those to
whom he was liable as a surety ; such a transaction is a fraud upon the cre-
ditors who are hindered or delayed in the collection of their demands.
13. Where an absolute sale of personal property is made, there must be an
actual bona fide delivery of the same to the vendee, in order to give a title
as against the creditors of the vendor, or some special reason or excuse shoinx
14
106 ALABAMA.
Borland v. Mayo.
for the retention of the possession by the latter ; and the fact, that the vendor
was the son-in-law of the vendee, is not a legal excuse.
14. Where there is a fraudulent sale, the parties may rescind it, and make
another contract in good faith, before liens attach upon the property as the
vendor's ; but where a sale is void ab initio for fraud inferrable from inade-
quacy of consideration, or otlier cause, it cannot acquire validity against
the creditors of the vendor, although the vendee may pay a sum beyond the
amount of the purchase money stipulated.
15. It cannot be intended that the vendor was aware of the vendee's insol-
vency, merely because he purchased all his estate on long credits.
16. If a father-in-law purchase from his son-in-law, who is in failing circum-
stances, all his estate, consisting of lands, slaves, furniture, &c., the trans-
action will be looked on with suspicion, and if there are other circumstan-
ces making its fairness questionable, then, altogether, they should be con-
sidered, by the jury, as adverse to the vendee, upon an issue of fraud, vel
non.
17. Inadequacy of price, upon the sale of property, is a badge of fraud, where
the vendor was greatly indebted ; though in itself it may not be sufficient
to avoid the sale, unless the disparity between the true value and the price
paid, or agreed to be paid, was so great as to strike the understanding with
the conviction that the transaction was not bonafde.
18. If mala fides is not attributable to the vendee, but he has acted with fair-
ness, his purchase cannot be pronounced void, at the instance of the ven-
dor's creditors, merely because its tendency was to defeat or delay them.
Writ of Error to the Circuit Court of Lowndes.
The defendant in error having obtained a judgment against
John H. Walker, caused 2, fieri facias to be issued thereon, which
was levied by the sheriff of Lowndes on a negro man named
Joshua, as the property of the defendant in execution, and the
plaintiff interposed a claim, and gave bond with security, as re-
quired by the statute, to try the right. As issue was thereupon
made up, and submitted to a jury, who found the slave in ques-
tion subject to the execution, and assessed his value at seven
hundred and fifty dollars, and judgment was rendered accord-
ingly.
On the trial, the claimant excepted to the ruling of the Court
It is shown by the bill of exceptions, that the suit in which the
plaintiff's judgment was recovered, was commenced in March,
1840; the execution was issued and levied in November, 1841.
In the examination of the evidence, the following questions were
JANUARY TERM, 1845. 107
Borland v. Mayo.
raised — all of which were duly reserved, viz . 1. The plaintiff
was admitted, notwithstanding an objection by the claimant, to
prove the value of the slave in controversy, at the time of the
trial. 2. A creditor of Walker testified, that after the sale to
Borland, Walker so arranged it as to induce the creditor to ac-
cept Borland as his debtor ; whereupon the claimant asked the
witness to state what Walker said to him, while he was endeav-
oring to induce him, (witness,) to accept the claimant's note for
his debt; but the plaintiff objecting, the witness was not permit-
ted to answer. 3. The plaintiff was allowed to prove the con-
sideration of the note on which his judgment was recovered, al-
though the claimant objected that such evidence was irrelevant.
4. So the plaintiff was permitted to inquire of a witness what
difference was usually made between sales, for cash, and on time,
for the purpose of showing that the purchase made by the claim-
ant of the defendant, was for a stipulated sum, below the value of
the property, considering the credit allowed. 5. The plaintiff
was permitted to prove, by a witness, what the defendant in exe-
cution said of his intention to sell, for what purpose, &;c., before
he made the sale, on which the claimant relies, notwithstanding
the claimant objected to the evidence, except so far as it went to
contradict the defendant ; but the objection was overruled, the
Court remarking, that such evidence was only admissible to show
the intention of Walker in selling, and to contradict him, but not
to affect Borland, unless he was connected with his vendor in con-
summating an unlawful purpose. 6. The plaintiff was also al-
lowed to show, by a witness, that the latter never knew the de-
fendant in execution to act as the overseer of the claimant ; this
evidence was adduced to contradict Walker, who stated that he
was Borland's overseer in 1841, and to prove that the property
which the latter claimed under a purchase from the former, had
never been delivered to the purchaser. 7. A witness adduced
by the plaintiff, was permitted to testify, that he was employed by
Walker, professedly as the agent of Borland, in the latter part of
1840, and the beginning of 1841, to act as the overseer of the plan-
tation and slaves, to which the latter asserts a title, under a con-
tract with Walker ; that Walker let him have some groceries,
and one of the farm horses when he left the plantation, with the
price of all which he credited Borland's account. Claimant offer-
ed to show what Walker subsequently said about the horse, but
108 ALABAMA.
Borland v. Mayo.
this, on objection, by tiie plaintiff, was rejected as inadmissible.
8. The plaintiff was allowed to prove, that Borland was greatly
indebted, in September, 1840, notwithstanding it was shown, that
he was a man of wealth, and had property of much greater value
than all his debts. 9. Al"ter the plaintiff had closed his testimony,
in rejoinder to the claimant, the latter offered to prove what
Walker said about the groceries and horse, he had furnished to
Graham, after the latter had received them, but this evidence was
rejected. 10, It was shown by the plaintiff^, that Walker remain-
ed in possession of the homestead, &c., which was embraced in
the sale to Borland, and that the plantation on which the slaves
labored was adjoining the land on which Walker continued to re-
side ; the plaintiff was then permitted to give evidence of Walk-
er's declarations, notwithstanding the claimant objected.
It was proved that the defendant in execution was the son-in-
law of the claimant, that they both lived in the same neighbor-
hood ; that the former was greatly embarrassed with debt, in
September, 1840, (when he sold all his property to the claimant,)
perhaps a hundred per cent, beyond the value of his estate; that
the sale was made on a long credit, the last payment not falling
due, until the expiration of twelve years thereafter ; that the claim-
ant made different statements, as to the price he was to pay for
the property ; that according to the largest sum stated by him,
the slaves might be so employed on the plantation as to yield a
profit large enough to pay the purchase money in eight or ten
years ; that there was no ostensible change of the possession of the
property sold from Walker to the claimant, &c.
The plaintiff prayed the Court to charge the jury as follows;
1. That if the vendor was a debtor in failing circumstances, in
September, 1840, and had creditors including the plaintiff in exe-
cution, not provided for by the sale to the claimant, who were
hindered in the collection of their demands, and that the tranfer
to the claimant was intended by the vendor and vendee to pre-
vent what they considered a sacrifice of the property, by sale
under execution, and thereby enable the vendor, afterwards, to
give a preference to his own proper creditors, over those to
whom he was liable as a surety, then the plaintiff was entitled to
a verdict.
2. If there was no actual and bona fide change of possession,
consequent upon the sale from the defendant to the claimant, and
JANUARY TERM, 1845. 109
Borland v. Mayo.
no special reason or excuse was shown, for the retention of pos-
session by the vendor, other than the relationship between himself
and the vendee, and the use the family of the latter had for the
property, then the plaintiff was entitled to a verdict.
3. If the sale by the defendant in execution, to the claimaht,
was fraudulent and void, as against creditors of the former, for
inadequacy of the consideration, on account of the long credit
given, or other cause, then it could not be made valid as against
the creditors, by the payment of the purchase money before it
was due, or by increasing the amount stipulated.
4. If it was the understanding and intention of the parties, that
so much of the purchase money as was not appropriated by the
deed, should be paid by Borland to such creditors only, of his
vendor, as the latter should subsequently direct, and who were
not provided for ; and it was intended by such means to hinder
and delay any of the creditors of the vendor, then the plaintiff
was entitled to a verdict.
5. If the deed embraced all the property of the defendant in
execution, then the jury were authorized to infer from that fact,
in connection with the disclosures made upon the face of the deed,
that the claimant was cognizant of the insolvency of the former,
at the time of the sale.
6. If the defendant in execution was in failing circumstances at
the time of the sale, and the claimant was his father-in-law, then,
this relationship was a just ground of suspicion, and if other sus-
picious circumstances were shown, it was to be regarded as a
circumstance tending to establish fraud.
7. If, considering the long credit given for the purchase money,
by the defendant in execution, to the claimant, or other cause, the
jury should believe the price agreed to be paid for the property
to be inadequate, and the vendor was embarrassed at the time,
then, such inadequacy was a mark of fraud.
8. If the object of the defendant in execution and the claimant
was to put the property out of the reach of the creditors of the
former, in order to obtain time to pay them, or to compromise
their demands, the sale was fraudulent and void ; and this al-
though the creditors may have been the gainers by the sale.
9. Although the claimant may not have intended any fraud,
or contemplated a dishonest or fraudulent purpose, yet if the ob-
ject or tendency of his purchase, was to place the property beyond
110 ALABAMA.
Borland v. Mayo.
the reach of Walker's creditors, and thus hinder and delay them,
then the transaction between claimant and defendant in execution
was void by construction of law.
10. Although the claimant may have paid more than the pro-
perty was worth, yet if the object and effect of the sale, was to
hinder and delay the creditors of the defendant in execution, then
it was fraudulent, and the jury should find for the plaintiff in exe-
cution. Which several instructions were given accordingly.
T. Williams, for plaintiff in error.
R. Saffold for the defendant in error, insisted, that the record
discovered no error for which the judgment was reversible. The
dec\sira.Uons o( a particep 3 fraudis before or after the act com-
mitted, are evidence against those associated with him, and the
proof of a combination by one witness of a vendor, who fraudu-
lently co-operates with his vendee, being in possession, is evidence
against the latter. [2 Phil. Ev. 177-8, C. & H.'s notes ; id. 452-3,
601-2, 772-3-4-5; 3 Car. & P. Rep. 94-9 ; 6 Rand. 285 ; 7 Cow.
Rep. 301.]
What was said by Walker about the groceries and horse, at
a time subsequent to that when they were delivered to Graham,
was properly excluded. [2 Phil. E v. 225 ; 13 Sergt. & R. Rep.
85.]
To sustain the several charges prayed of, and given by the
Court, he cited, 2 J. J. Marsh. Rep. 233; 8 Dana's Rep. 263;
2 Con. Ct. S. Caro. Rep. 125-6 ; 4 Day's Rep. 146, 150-2-6 ; 9
Johns. Rep. 243; 2 Peter's Rep. 107; 2 Ala. Rep. 313-8; 3
Stewt. Rep. 243-5; 2 Stewt. Rep. 50; id. 336; 5 Ala. Rep.
631 ; id. 770 ; 13 Peters' Rep. 101 ; 12 Sergt. & R. 198,201-2 ;
16 Wend. Rep. 523 ; 17 Wend. Rep. 53 ; 7 Paige's Rep. 163-5-6;
20 Wend. Rep. 25, 507, 524, 542 ; 5 Ala. Rep. 324 ; 9 Johns.
Rep. 337; 3 Johns. Ch. Rep. 481 ; 7 Cow. Rep. 732; 5 Sergt.
& R. Rep. 275; 2 Kent's Com. 412; 14 Johns. Rep. 458;
4 Johns. Rep. 536, 592-3-7 ; 20 Johns. Rep. 442 ; 1 Hopk.Rep.
373; 2 Mason's Rep. 252; 11 Wend. Rep. 189, 200-1-2; 4
Paige's Rep. 23 ; 9 Porter's Rep. 39, 566, 573 ; 3 Ala. Rep. 444 ;
4 Ala. Rep. 374-6-9, 380-1-2 ; 2 Phil. Ev. 452 ; 3 C & P.
Rep. 9.
JANUARY TERM, 1845. Ill
Borland v. Mayo.
COLLIER, C. J. — 1. It was clearly competent to permit the
plaintiff below to prove the value of the slave, at the time of the
trial. The claimant, by the regular interposition of his claim,
became the custodian of the property, until the question of the
slave's liability to the satisfaction of the^en/aczas, should be de-
termined. If the decision was favorable to the claimant, then
his bond would become inoperative ; but if otherwise, the bond
remains in full force, as the statute declares « it shall be condi-
tioned for the forthcoming of the property, if the same be
found liable to the execution, and for the payment of such costs
and damages as shall be recovered," &c. « And if the claimant
shall fail to deliver the same, or any part thereof, when required
by the sheriff," it shall be the duty of the sheriff to indorse the
failure on the bond, and return it to the clerk, &c.; whereupon the
bond shall have the force and effect of a judgment, and execution
shall issue against the claimant and his surety, for the, value of
the property not delivered, as assessed by the jury. [Clay's Dig.
211, § 52 ; 213, §§ 62, 64.] The latter section directs, that when
the jury shall find the property subject to the execution, they
shall find the value of each article separately, but does not, in so
many words, provide, that they shall be governed in their estimate,
by the value at the time the trial takes place, yet, we cannot doubt
that the plaintiff may offer proof to show, what the property was
then worth. This conclusion necessarily results from his right
to have the property to satisfy his execution, and if it cannot be
had, or the claimant will not return it, then he is entitled to the
value assessed. Whether the plaintiff may not elect to prove the
value at the time of the levy, if the property has afterwards de-
preciated, or been entirely destroyed, we need not consider.
2. It was not allowable for the claimant, to prove by a credi-
tor of the defendant in execution, what the latter said to the credi-
tor as an inducement to him to accept the claimant as his debtor,
instead of the defendant. Such declarations were no part of the
res gestae, which the plaintiff was impugning, but related to a
transaction subsequent in point of time to the sale to the claimant,
and which the plaintiff did not controvert.
3. The consideration of the note on which the plaintiff's judg-
ment was recovered, was not a question in issue, and could not
be controverted in a proceeding of this character ; the evidence
then adduced to this point was unnecessary, and should not have
112 ALABAMA.
Borland v. Mayo.
been admitted by the Court. But we are unable to discover how
the claimant could have been prejudiced by its admission, unless
it be conceded that the consideration, viz: services as an over-
seer, were so meritorious as to overreach and invalidate the sale.
This has not been pretended. No injury, therefore, resulting from
the evidence, its admission furnishes no sufficient ground for the
reversal of the judgment.
4. Where the question is, whether a sale of property on long
credits, is fraudulent, it is allowable to show the inadequacy of
the price, by showing the difference usually made between cash
and credit sales, with the view of proving that the amount agreed
to be paid, was less than the property would have sold for on the
time given. It cannot be objected that the law fixes the rate of
interest, and therefore, the true difference in price is, the addition
of the interest to the cash value for the term of credit. There
certainly^ should not be a greater difference, yet, if according to
the usuaf mode of dealing, parties are not thus restricted, the ven-
dor may enforce the contract, if he makes a fair sale, where the
difference is more than interest, unless it is obnoxious to the law
ao-ainst usury. The evidence upon this point was, then, proper-
ly received.
5. The Court did not admit the declarations of Walker, made
previous to the sale to the claimant, without qualification, but the
jury were informed that they were to consider them so far as they
went to contradict the testimony which Walker had given, in his
examination; but the claimant could not be affected by them, un-
less he was connected with his vendor in the consummation of a
fraud. As to the first purpose for which they were admitted,
their competency cannot be disputed ; and as it respects the se-
cond, viz : to show that the sale was fraudulent, under the qualifi-
cation laid down by the Court, we think their admissibility is
equally defensible. The declarations of a conspirator are admis-
sible against his fellow. [Phil, Ev. C. & H. 177, and cases cited.]
So, where there is proof tending to show fraud, on the part of the
purchaser of property, and a community of design with his vendor,
it has been held, that in a contest between the former and the
creditors of the latter, the declarations of the vendor are admissi-
ble against his vendee. [Clayton v. Anthony, 6 Rand. Rep. 285 ;
Reitenbach v. Reitenbach, 1 Rawle's Rep. 362.] And it has
been decided, where the vendor is left in possession of property,
JANUARY TERM, 1845. 113
Borland v. Mayo.
and exercises acts of ownership over it after sale, this proves
a combination to defraud creditors, and the declarations of the
vendor are evidence against his vendee. [Wilbur v. Strickland,
1 Rawle's Rep. 458 ; Willies v. Farley, 3 Car. & P. Rep. 395;
2 Phil. Ev. C. & H.'s notes. 178, 601-2.] The testimony recited
in the bill of exceptions shows, that the integrity of the transac-
tion between the defendant in execution, and the claimant, was
at least questionable, and that there was no ostensible change of
possession. This being the case, the proof of Walkei^s declara-
tions, comes within the principle upon which the authorities cited
rest, and are admissible against his vendee, if competent evidence
under the circumstances. The form of the claimant's objection to
the evidence we are considering, indicates, that he did not object
to it because it tended to impeach the credit of the defendant in
execution, by showing that he had made other statements of the
facts to which he testified, without first inquiring of him, wheth-
er he had made such statements. [Lewis v. Post & Main, 1
Ala. Rep. N. S. 69; 2 Phil. E v. C. 6z, H.'s notes, 771 to 775.]
But it was expressly admitted, that it was allowable to give evi-
dence of Walker's declarations, so far as they contradicted his
testimony; and as to the further object proposed by such proof,
what we have said will maliC it sufficiently clear, that its admis-
sion was placed, by the Court, on the true ground.
6. It was competent for the plaintiff to inquire of a witness,
whether he ever laiew Walker to act as the claimant's overseer,
for the purpose of countervailing the testimony of Walker,
who had affirmed such to be the fact, and also to show that there
had been no delivery of the property in question to the claimant-
True, such evidence may not be entitled to great weight, yet it
was pertinent, and entitled to more or less consideration, accord-
ing to the opportunities which the witness possessed for acquiring
knowledge upon the subject.
7. Evidence of what Walker said about the horse he previ-
ously allowed an overseer, employed by Borland, to have, at an
agreed price, was properly excluded. If those declarations were
admissible. Walker was prima facie a competent witness, and
could himself have been called on to relate them. They con-
stituted no part of the res gestae, viz: the witness' employment
and service as overseer, or purchase of the horse from Walker
15
114 ALABAMA.
Borland v. Mayo.
on the claimant's account, but they were post factum statements,
and according to all principle were properly excluded.
8. We can discover no objection to the admission of the evi-
dence, to showthatthe claimant wasgreatly indebted iji September,
1840, when the sale was made to him, of the entire estate of the de-
fendant in execution. Such testimony,it is true, might not establish
a fraud, yet, in connection with other facts,the indebtedness of the
claimant might exert a controlling influence. No matter what
may be the extent of one's property, prudent men, who are in-
debted, are less disposed to make heavy purchases, even on
time ; especially if they do not expect, or intend to realize by a
re-sale.
9. What we have said about the seventh objection to the testi-
mony, is conclusive upon this point. But it may be said in addi-
tion, that if the Court had misapprehended the law, in rejecting
the evidence, its decision would furnish no ground for the rever-
sal of the judgment. The plaintiff in execution opened the case,
and laid his testimony before the jury. The claimant then intro-
duced his evidence, and the plaintiff rejoined; after the trial had
proceeded thus far, it was a matter of discretion with the Court,
whether any other evidence should be adduced. It was at this
latter stage of the cause, when the testimony we are considering
was offered.
10. The view taken of the fifth objection will show, that the
evidence of Walker's continued possession of the property which
he conveyed to the claimant, was such as to make the decla-
rations of the former evidence against the latlfer. We do not say
that it was sufficient to negative the conculsion, that the posses-
sion was changed, but that there was proof on the point,
which the jury should have considered, cannot be questioned.
The declarations of the vendor were only admissible upon the
hypothesis, that he retained the possession, or himself and ven-
dee were co-workers in the purpose to defraud ; and the Court
perhaps so instructed the jury, if not, it was proper to call the at-
tention of the Court to it, and pray such a charge.
We will now briefly consider the several charges to which
the claimant excepted : —
1. This charge affirms, that if a debtor in failing circumstances
makes a transfer of his property to a third person, which is in-
tended, both by the vendor and vendee, to prevent what they con-
JANUARY TERM, 1845. 115
Borland v. Mayo.
sidered a sacrifice, by sale under execution, and thus enable the
vendor aiterwards to give a preference to his own proper credi-
tors, over those to whom he was liable as a surety, that such
transaction is a fraud upon the creditors, who are hindered or
delayed in the collection of their demands. There can be no
question but an assignment made under such circumstances is in-
operative, by the second section of the statute of frauds, which
expressly declares, that every gift, grant or conveyance of goods
or chattels, by writing or otherwise, made and contrived of ma-
lice, fraud, covin, collusion or guile, to the intent or purpose to
delay, hinder or defraud creditors of their actions, suits, debts, &c.
shall be utterly void. [Clay's Dig. 254.] If the vendor had re-
served to himself, by a stipulation on the face of the deed, the
right to direct the appropriation of the money, such stipulation
would have been void against judgment creditors, and the legal
conclusion must be the same, although the deed is silent upon the
subject, if the sale is the result of a traudulent combination be-
tween a failing debtor and a third person, to defeat the creditors
of the former.
2. The terms of the contract between Walker and the claim-
ant, contemplated an immediate change of possession, and if there
was not an actual and hona fide delivery of the property to the
claimant, in order to maintain a title , against the creditors of the
vendor, it devolved upon the claimant to show some special rea^
son, or excuse, for the retention of the possession by the vendor.
The fact that the vendor married the vendee's daughter, and the
family of the latter required the services of the slaves, &c. fur-
nished no sufficient excuse, so as to repel the legal inference of
fraud. This point is explicitly adjudged in the Planters' and
Merchnnts' Bank v. Borland, 5 Ala. Rep. 531, and cases there
cited.
3. If the sale to the claimant was void ab initio, for fraud, in-
ferrable from the inadequacy of the consideration, by the length
of credit given, or for other cause, it could not acquire validity
agianst the vendor's creditors, although the vendee might pay a
sum beyond the purchase money stipulated, and even before the
expiration of the term of credit agreed. The fraud of the trans-
action did not prevent the parties from rescinding it, and making
another contract, bona fide, before liens attached ; and the charge
does not deny such to be the law, it merely asserts, that if the sale
116 ALABAMA.
Borland v. Mayo.
was fraudulent against creditors, in its inception, it still continued
so, although the vendee shall have made the full paymerft.
4. What we have said upon the first charge, is equally appli-
cable to this, and shows that the Court, in giving it, did not mis-
state the law.
5. The mere fact, that the conveyance from Walker to the
claimant, transferred all Walker's pjoperty, does not of itself war-
rant the inference that the latter was aware of the insolvency
of his vendor. A man may sometimes be induced to sell all his
visible estate, preparatory to a removal from the country ; and the
fact that he provides for the payment of a large amount of debts,
by substituting the credit of his vendee for his own, may not pro-
ceed from his inabili;y to pay otherwise. He may find it for his
interest to sell on time, because a purchaser cannot be obtained,
who is prepared to pay the cash, or by giving credit, a better
price may be had. Besides, he may know that it is possible for
him to relieve himself from debt, by using the paper of his ven-
dee. And the vendor may thus act, though he has a large amount
of cash, which he supposes it will be more beneficial for him to
use in some other way.
No such inference can be drawn from the fact, that in this
case, a large amount of the purchase money, was payable from
seven,to twelve years after the sale. The vendor is usually com-
pensated for giving long time, and hence, if he thus sells, it neither
proves his solvency, or insolvency. The written transfer only
evidences such a contract as we have described, and does not,
when taken alone, or in connection with the fact supposed, show
that the claimant knew his vendor was insolvent, when he pur-
chased from him.
The fact of the relationship of the vendor and vendee, the con-
tiguity of their residence, and the actual insolvency of the former,
perhaps, would have authorised a jury to presume, that the claim-
ant was aware of Walker's situation ; the charge does not rest
the presumption on these grounds, but alone upon the purchase
of all the vendor's property.
In Yates and another v. Carnsew, 3 Car. & P. Rep. 99, the
question arose under the statute of46George III, ch. 135, wheth-
er a party dealing with a trader, knew him to be insolvent. The
defendant there had for nearly two years been buying goods of
the bankrupt ^t prices vastly below prime cost, and Lord Ten,'
JANUARY TERM, 1845. 117
Borland v. Mayo.
terden said to the jury, "it is for you, as men of business, to say,
whether the defendant could go on dealing with a man in this
way, for so long a time, without knowing that he was insolvent.
There is no doubt, that for the sake of getting ready money, great
sacrifices are often made, in one or two transactions, by solvent
men, but the strength of this case, on the part of the plaintiff, is,
there were, not merely one or two dealings between these par-
ties, but a continued series of them," in two several years. Here,
the vendee's knowledge of the vendor's insolvency was presum-
ed from extensive purchases of goods, repeatedly made, during a
long period of time, at prices far below cost; while, in the case at
bar, the Court was required to instruct the jury, that if the claim-
ant purchased all the property of the defendant in execution at
one time, it might be legitimately inferred that he was aware of
his vendor's insolvency. Such a conclusion, we have seen, can-
not be predicated of the premises.
6. This charge assumes, that if a father-in-law purchases from
his son-in-law, who is in failing circumstances, all his property,
including lands, slaves, horses, cattle, hogs, household furniture,
&c., the relationship of the parties will cause the transaction to
be viewed with suspicion, and if other suspicious circumstances
were shown, its tendency would be to establish a fraud. The
law is not laid down too stringently against the claimant. The
connection between the vendor and vendee, the embarrassment
of the former, and sale of all his property, certainly should cause
the transfer to be looked on with suspicion, and if there were
other circumstances making its fairness questionable, then all ta-
ken together, should be considered by the jury, as adverse to the
vendee, upon an issue of fraud vel non.
7. Inadequacy of consideration, where the vendor is greatly
indebted, is recognized as a mark of fraud. In this charge the
Court says nothing more than so to declare the law. True, it
might not be sufficient per se, to authorize a sale to be annulled,
unless the disparity between the true value of the property, and the
price paid, or agreed to be paid, was so great as to strike the
understanding at once, with the conviction, that such a sale never
could have been made bona fide. But it may be a mark of fraud
where the difference is not so great, and when other circumstan-
ces are associated with it, they may be conclusive.
8. What has been said in respect to the first and fourth charg-
118 ALABAMA.
Borland v. Mayo.
es, is applicable to this. It merely affirms, that if the facts be
such as are supposed, then the conveyance would be fraudulent
because intended by both parties, to delay and hinder creditors
in the collection of their debts. That such a conclusion is a ne-
cessary sequence, if the facts are affirmatively shown, we think
will not be seriously questioned.
9. This charge, we think, cannot be supported. It assumes,
that although the claimant may have been influenced by honesty
of purpose, in purchasing the estate of the defendant in execution,
yet if the object, or tendency of the purchase was to place the pro-
perty beyond the reach of the vendor's creditors, and thus hinder
and delay them, the transaction was void, by construction of
law. Now, every man may sell his property in good faith, if
neither creditor nor other person has a lien which is opposed to
such a right ; and this, although the consequence may be to de-
feat creditors in the collection of their demands. If the vendee
has meditated no dishonest purpose, but has acted with fairness,
his purchase can't be pronounced void, at the instance of the
vendor's creditors, merely because its "tendency" was to defeat
or delay them. The claimant cannot be injuriously affected by
the fraud of the defendant, unless he participated in it, or can, by
legal construction, be connected with it in some offensive manner.
If, in speaking of the effect of the sale, the word object alone had
been used, or object and tendency, instead of connecting the two
latter by the disjunctive " or,'' then the instruction would have
been proper ; but these terms could not have been employed be-
cause it was hypothetically admitted, that no fraud or dishonesty
of purpose was attributable to the claimant. In declaring, that
if either the object or tendency of the purchase was to defeat the
vendor's creditors, then the same was void, it is sufficiently shown,
that the Court did not correctly state the law.
10. For the reasons stated in considering the first, fourth and
eighth charges, this is unobjectionable.
We have thus considered the numerous points made upon the
record in this cause, with as much brevity as we could, in order
to make ourselves intelligible. The great and unnecessary length
to which the bill of exceptions is drawn, admonishes us of the
propriety of again declaring our disapprobation of a practice,
which causes bills of exception to be surcharged by the statement
in extenso of all the evidence adduced, as well oral as documen-
JANUARY TERM, 1845. 119
Branch Bank at Mobile v. Murphy.
tary. Such a practice is productive of benefit to no one — it im-
poses increased labor upon the counsel ; the case, instead of being
divested of every thing extraneous is mystified, and a heavy draft
is made upon the time of the appellate Court in denuding it, that
it may be seen what are the questions intended to be revised.
The points made being severally considered, recapitulation is
unnecessary, and we need only add, that the judgment of the Cir-
cuit Court is reversed, and the cause remanded.
BRANCH BANK OP MOBILE v. MURPHY.
1. The statutes of the State, unless otherwise expressed, take effect from
their passage, and an act done in the county of Clarke, on the day after
the passage of the law, will be governed by the statute, although it was im-
possible it should have been known there.
Error to the Orphans' Court of Clarke.
Blount, for plauitifFin error.
Peck, contra.
ORMOND, J. — It is unnecessary to consider any of the as-
signments of error, but those which question the regularity of
the decree of the Court, declaring the estate of the deceased in-
solvent. The decree was made on the 10th February, 1843 ; on
the 9th February, preceding, an act was passed " to amend the
laws now in force in relation to insolvent estates," which materi-
ally changed the mode of proceeding in such cases, but the pro-
ceedings were had in conformity with the former law. The
counsel for the defendant in error, maintains, that as it was im-
possible that the law should have been known in Clarke county,
one day after its passage, it ought not to affect this proceeding.
120 ALABAMA.
Brand) Banlc at Mobile v. Murphy.
The rule of the common law, that statutes are in force from the
date of their passage, when no time is fixed for the commence-
ment of their operation, has been repeatedly recognized by this
Court. [Weatherford v. VVeatlierford, 8 Porter, J 74 ; The State
V. Click, 2 Ala. Rep. 26.] The last case was an indictment for
carrying concealed weapons, and it was insisted that the act did
not operate, becausa it hud not been published at the time of the
commission of the offence ; yet it was held, that although the rule
might sometimes operate harshly, it was now too firmly settled to
be changed, in any other mode than by legislation. The same
decision was made in Thompson v. Stickney, 6 Ala. Rep. 579.
Nor are we able to comprehend what other rule could be adopt-
ed. The law must certainly be obligatory over the entire State,
if valid any where. Yet, according to this argument, its obliga-
tion would depend on the distance of the place, where the law
was violated, from the seat of government. In the case of a penal
law, the executive clemency would doubtless be extended where
it was impossible, that the law should have been known at the
time of its supposed violation. But in this case, there is really no
hardship. The decree of insolvency was but the initiatory step,
in the whole proceeding, and although when that decree was
made, the change of the law was unknown, yet when the change
was known, it was the duty of the parties to retrace their steps,
and commence anew. Instead of doing so, they have proceeded
to a final settlement, in utter disregard of the existing law.
We have not considered it necessary to look into the other as-
signments of error, as the same questions will not necessarily arise
again.
Let the judgment be reversed and the cause remanded.
JANUARY TERM, 1845. 121
Hopper, Garnishee, v. Todd.
HOPPER, GARNISHEE, v. TODD.
1. A garnishment to obtain satisfaction of a judgment, must issue out of the
Court in which the judgment was rendered; therefore, a garnishment can-
not issue out of the County Court, when the judgment was rendered in the
Orphans' Court
Error to the County Court of Montgomery.
This was a proceeding in the County Court of Montgomery,
by the plaintiff in error, who, by the oath of a credible person,
made affidavit before the Clerk of the County Court, that she
had recovered a judgment in the Orphans' Court of Montgomery
county, of one Anderson Thomas, that he had no property with-
in affiant's knowledge to satisfy the judgment, &c., and that the
plaintiff in error was indebted to him. Thereupon a writ of gar-
nishment issued, returnable to the next term of the County Court.
The garnishee appeared, and pleaded to the jurisdiction of the
Court, to which the plaintiff demurred, and the Court sustained
the demurrer. The garnishee then moved to quash the garnish-
ment, which motion the Court overruled, and the garnishee an-
swering, and admitting an indebtedness to the defendant, of five
hundred dollars, the Court rendered a judgment against him, for
that amount from which this writ is prosecuted.
Elmore, for the plaintiff in error.
Hayne, contra, contended, that the act of 1823, Clay's Dig,
260, § 3, intended to confer this jurisdiction, on any Court of re-
cord, without regard to the Court in which the judgment was ren-
dered.
ORMOND, J.— The act of 1818, Clay's Dig. 259, § 2, and
that of 1823, ib. 260, § 3, to enable a judgment creditor to gar-
nishee a debtor of the defendant to the judgment, have precisely
the same object in view. The precise object of the last act, was
to enable the party to make the affidavit before the clerk, either
16
122 ALABAMA.
Clapp et al. v. Mock, et al.
in term time or vacation, whilst by the former act, it could only
be made in Court. No other change of the law was intended, or
accomplished by it.
That the garnishment must be returnable into the Court which
rendered the judgment, is clear, from the terms of the act, and
such has been the uniform construction put upon it in this Court.
The garnishment, is merely auxilliary to the judgment, to obtain
satisfaction. In Blair v. Rhodes, 5 Ala. Rep. 648, it was con-
sidered "a consequential suit, in which the plaintiff seeks to ren-
der some third person liable to the payment of his judgment," and
in that case it was held, that the record of the judgment in the
original suit, might be sent up, to sustain the judgment upon the
garnishment.
The County Court proper, having no jurisdiction, its judgment
must be reversed.
CLAPP, ET AL. V. MOCK, ET AL.
1. M. became the indorser for L. of certain bills of exchange, upon an agree-
ment that they should be used in the purchase of the stock of a particular
bank, in which botli were equally interested, and both to be equally bound
for the payment of the bills. L., pursuant to an arrangement with H., trans-
ferred the bills to C, in payment of a debt due by H. to C, the latter be-
ing ignorant of the agreement between M. and L., relating to the indorse-
ment of the bills : Held, first, that C. could recover of M., the indorser, though
L., in the transfer to C, had violated the contract by which the indorsenients
were made. Second, that if L. was the dupe of H, in the contract by which
the bills were transferred to C, the fraud could not be visited on C, who
^ was ignorant of it, and did not participate in it
Error to the Chancery Court at Montgomery.
The bill was filed by Benjamin Lathrop, and Benjamin Mock,
jr., and charges, that the defendant, Clapp, had a real or pretend-
ed claim on oneHaynes, for $12,800. That Clapp represented
JANUARY TERM, 1845. 123
Clapp, et al. v. Mock, et al.
to Lathrop, that Haynes was the owner of ten thousand shares
of stock in the Bank of Rome, in Georgia, on wliich thirty-five
dollars per share had been paid, and proposed to Lathrop, to as-
sume the debt due by Haynes to him, and that Haynes should as-
sign one half of his interest in the stock to him. That Clapp pro-
posed to take in payment of the debt of Haynes, drafts of Haynes
on Lathrop, indorsed by Mock, upon the house of Cummings &
Spyker, in Montgomery. That Haynes confirmed the state-
ments of Clapp, and represented himself to be wealthy, and pro-
duced papers tending to prove that he was the owner of a large
number of shares in the Bank. That confiding in these repre-
sentations, the bills were drawn, and handed to Clapp, bearing
date the 10th May, 1840. That in consideration of these bills,
an agreement was entered into between Lathrop and Haynes, as
follows :
" Rome, Georgia, April 12, 1840.
Articles of agreement between B. G. Lathrop, of the one part,
and C. Haynes of(the other part. The said Lathrop & Haynes
have this day agreed to combine their interest, which they now
have in the Western Bank of Georgia, also to share equally in the
stock which either party may hereafter purchase, provided that
the said Lathrop, pays to the said J. W. Clapp, twelve thousand
eight hundred dollars, half of which is to be paid back to the said
Lathrop, in one hundred and twenty days from this date, and the
said Lathrop & Haynes do further agree, to join their interests in
said bank with R. A. Greene, and Wm. Smith, provided the
said Greene and Smith agree to the same.
, B. G. Lathrop,
C. Haynes."
Indorsed —
"Ninety-nine shares has been transferred to B. G. Lathrop, in
pursuance of the above, upon which thirty-five per cent, has been
paid, less five per cent, off", making $3,291 75. The memoran-
dum below, of the within, is not intended to affect the within
agreement. C. Haynes."
That judgments have been obtained upon the said bills of ex-
change, against Mock, the indorser. That since the judgments,
Lathrop has travelled into Georgia, and ascertained from one
Green, the President of the Bank, that Haynes was a swindler,
that he never owned any stock in the Bank, having never paid
124 ALABAMA.
Clapp, et al. v. Mock, et al.
any thing upon it; that no defence was made to the actions at
law, because it was believed the stock was a sufficient security
for the debt, &c.
An injunction was granted.
An amended bill was filed, in which it is alledged, that the
complainants had agreed to purchase stock in the Bank at Rome,
for which purpose, and no other, the bills of exchange were
drawn, and indorsed. That at the time an engagement in writ-
ing was entered into between complainants, as follows :
" Alabama, Montgomery county.
Know all men by these presents, that I, Benjamin Mock, have
this day indorsed three bills of exchange, (describing them.) The
above described bills, are to be used in purchaing Rome Bank
stock, and for no other purpose. The said stock, purchased with
said bills, to be equally divided between the said Mock, and B.
G. Lathrop, and all benefits arising from the same, either directly
or indirectly, is to be shared equally, by the above mentioned par-
ties'; and each one is to pay an equal share of the above named
bills. Given under our hands and seals, this 1 2th day of May,
1840. B. Mock, Jr.
B. G. Latiirop."
That both Haynes and Clapp knew of this agreement, previ-
ous to the transfer of the bills of exchange, and that the bills of
exchange had been executed for the purpose stated in the agree-
ment. That Clapp knew, that Haynes had no stock in the
bank. That Mock was a stranger, and had never been at Rome
until since the judgment; when he ascertained that Haynes never
owned any stock in the Bank, &c.
The defendant, Clapp, by his answer, positively denies all the
material allegations of the bill, and states the facts of the case to
be, that Haynes was the partner of one Bronough, in some
slaves ; that Bronough died, and Clapp was sent from Virginia, to
settle the affairs of the firm with Haynes. That Haynes was in-
debted in the sum for which the bills were drawn, including some
individual accounts against Haynes, in his hands for collection.
That Haynes promised to pay him at Rome, in Georgia, where
he professed to have funds. That Haynes failed to do so, and
he threatened to sue him, and attach the stock which he under-
stood he owned in the Bank at that place. That Haynes endea-
vored to prevail on him, to take Lathrop for the debt. That La-
JANUARY TERM, 1845. 125
Clapp, et al. v. Mock, et al.
throp promised to pay the debt in Montgomery, from what in-
ducement Clapp did not know. That Lathrop failed to pay in
Montgomery, alledging that he could not raise the money, but
promised to pay in Mobile. That he went to Mobile, where
Lathrop again failed to pay the money, and proposed to give
bills of exchange, which Clapp refused to take. That upon his
arrival again in Montgomery, he agreed to take bills of exchange
for the debt, if Lathrop would procure a responsible indorser.
That he proposed the complainant Mock, and Clapp having
made inquiries, agreed to take him ; and Lathrop set out, as he
said, to obtain his indorsement. About a week afterwards he
met with Lathrop, near Jacksonville, who informed him that he
had the bills, indorsed by Mock, and a transfer of the stock of
the Bank from Haynes, which he exhibited, and proposed to re-
turn to Rome, to make an examination of the Bank, to see if
Haynes had not deceived him. That he accordingly went to
the Bank, and assisted by one of the clerks, examined the books
of the Bank, as to Haynes' interest, expressed himself satisfied
with the result, and filled up, and handed the bills to him, Clapp.
He denies any knowledge, that the instrument executed between
Mock and Lathrop, was made, but supposed, that he was an ac-
commodation indorser. Denies that he made any representa-
tions to Lathrop as to Haynes' being the owner of stock in the
Bank, or that he induced, or persuaded him, to become bound for
the debts. That understanding that Haynes had some interest
in the Bank, he was about to commence a suit to subject it to
the payment of the debt, when he was prevented by Lathrop in
the mode above described. He denies all fraud, &c.
Haynes also answered the bill, but his answer need not be in-
serted, as it has no influence on the case.
To prevent a continuance of the cause, the defendant admitted
that Lathrop would prove, that the bills of exchange were deliv-
ered to him, to be used in the purchase of bank stock, for the
benefit of Mock and himself; and that Clapp knew these facts,
when he received the bills in payment of the debt of Haynes, &c.
All exceptions were reserved to the competency of Lathrop as a
witness. It was also admitted that Lathrop had been declared a
bankrupt, since this suit was commenced.
Much other testimony was taken, for which see the opinioji
of the Court.
126 ALABAMA.
Clapp, et al. v. Mock, et al.
The Chancellor considering, that it. appeared sufficiently, that
the bills of exchange were created for a specific purpose, the
purchase of stock, and that Clapp knew the fact, he was charge-
able as being accessory to a breach of trust, and could not re-
cover on the bills ; and accordingly he decreed a perpetual in-
junction to the judgQients recovered at law upon them.
This decree is now assigned as error.
Hopkins and Elmore, for plaintiff in error. The answer con-
tains a full denial of all the equity of the bill, and there is no proof
but that of Lathrop, who is incompetent because of intei-est, and
because he is a complainant on the record. [2 Ala. Rep. 100 ;
4 id. 285 ; G id. 97, 488, 442; Grossly Ev. 242; 1 Smith Ch.
P. 343; 2 Mad. 415; 1 Vernon, 230 ; Greenleaf Ev. 405.]
They further contended, that the case made by the complain-
ant, in his bill, and amended bill, was incongruous, and inconsis-
tent. That the answer was fully supported by the proof, where
it was not responsive to the bill. Lastly, that Chancery had no
jurisdiction, as the defence was purely legal, and no sufficient
reason shown for not making defence at law. [5 Porter, 547 ; 6
id. 24; 7 id. 549 ; 2 Ala. Rep. 21.]
Thos. Williams and Peck, contra, contended, that there was
testimony sufficient to fasten on Clapp, a knowledge of the pur-
pose for which the bills were made, and he was therefore acces-
sory to a breach of trust. That it was impossible not to see, that
Lathrop, and Mock, had been the prey of the artifices of Clapp
and Haynes, as it was perfectly clear, that Haynes never owned
any stock in the Bank, and Clapp knew the fact, or at least knew
enough to put him on inquiry. [5 Wend. 566.]
As to the jurisdiction of the Court, they contended, that the
Court of Chanceiy had concurrent jurisdiction with the Court of
law, incases of fraud, such as the present.
ORMOND, J. — We shall abstain from the consideration of the
•question, whether Chancery had jurisdiction of this case, from the
omission of complainants to make defence at law, or to account
satisfactorily for the omission, because, in our opinion, upon the
merits, the case is with the plaintiff in error.
The supposed equity of the bill is, that the bills of exchange,
JANUARY TERM, 1845. 127
Clapp, et al. v. Mock, et al.
upon which the plaintiff in error recovered a judgment at law,
were indorsed by Mock, upon an agreement with Lathrop, that
they should only be employed in the purchase of stock, in the
Bank of Rome, Georgia, in which Mock and Lathrop were to be
equally interested, and to be paid by them in equal proportions.
That with a knowledge of this agreement, between Mock and La-
throp, Clapp received the bills of exchange from the latter, in
payment of a debt due by one Haynes, to him, Clapp; Haynes
having induced Lathrop to believe, that he was the owner of a
large amount of stock in the Bank, when, in truth, he did not own
any.
It appears very clear, from the proof, that Haynes had an in-
terest in, or control over, a large amount of the stock of the Bank,
and that Lathrop had been at Rome, the place where the Bank
was located, endeavoring to obtain some of the stock of the Bank
before Clapp had visited Rome, or had any connection, or inter-
view with Lathrop.
Clapp was the agent of an estate, having a large claim against
Haynes, and went to Rome with the design of getting payment
of the debt, and was there informed by Haynes, that he had made
a contract with Lathrop, for a sale of his interest in the stock of
the Bank, for the purpose of paying the debt, which Lathrop
was to pay in Mobile. This appears from the answer of
Clapp, corroborated by the deposition of Haynes. It is also cor-
roborated by the bill itself In the first bill which was filed, an
exhibit is made, by which it appears; that on the 12th of April,
1840, which was about a month before the execution of the bills of
exchange, Lathrop made a contract with Haynes, for an equal
share of his interest in the stock of the Bank at Rome, for 812,800,
half of which Haynes was to pay back to Lathrop, in one hun-
dred and twenty days. This contract, Haynes, in his deposition,
says, was made for the express purpose of obtaining money to
pay the debt to Clapp. He also states, as does Clapp in his an-
swer, that Lathrop failed to obtain the money in Mobile, accord-
ing to his expectation, and proposed to give Clapp bills of ex-
change. It also appears, by the evidence of Pullum, that Lathrop
was in Mobile about this time, endeavoring to raise the credit of
the Bank. It is therefore very clear, we think, that the allega-
tion of the bill, that Clapp induced Lathrop to become the pur-
128 ALABAMA.
Clapp, et al. v. Mock, et al.
chaser of the stock from Hayncs, with a knowledge that the lat-
ter did not own any stock in the Bank, is without foundation.
It has already been stated, that Lathrop was at Rome, endea-
voring to obtain stock in the Bank, and anxious, as the witness,
Pullum says, to have an interest in it, before Clapp, who was a
stranger in the country, had been at Rome, to obtain payment
from Haynes. It also appears that Haynes, whether the owner
or not, had the control of a large amount of the stock of the Bank,
which, though standing in the name of other persons, he had pow-
ers of attorney to sell and transfer. He swears to the fact, posi-
tively, himself, and it appears from his testimony, and that of
others, that he subsequently caused to be transferred, on the
books of the Bank, to Lathrop, five hundred and eighty-seven
shares, on which thirty-three dollars had been paid on each
share.
There is not a particle of proof in the cause, that Clapp induc-
ed Lathrop to make his purchase of the stock of Haynes. He
positively denies it in his answer, and is corroborated by Haynes,
who says he proposed it to Lathrop himself; and from the testi-
mony of Pullum, a clerk in the Bank, it appears, that the bills were
not delivered to Clapp, until Lathi'op, by an examination of the
books of the Bank, and by obtaining information from the officers
of the Bank, had become satisfied of the extent, and value, of the
interest of Haynes in the Bank.
The equity set up in the amended bill, is, that Clapp knew of
the agreement, between Mock and Lathrop, and of the condition
upon which the latter indorsed the bills ; that they were only to
be used in the purchase of the stock of the Bank. This is posi-
tively denied by Clapp, who states, that after Lathrop had failed
to obtain the money in Mobile, to pay him, as he had agreed with
Haynes, on the 12th April, 1840, to do, he, Lathrop, proposed to
pay in bills of exchange, which Clapp agreed to take, if a respon-
sible indorser was procured. That upon Mock being proposed,
he" made inquiry, and agreed to take him ; whereupon Lathrop
went to obtain it. That he never saw Mock, and always suppos-
ed he was a mere accommodation indorser. This denial of
knowledge of the true character of the indorsement of Mock, is
supposed to be contradicted by the testimony of Haynes, but it
does not appear to us, that there is any contradiction between the
answer of Clapp, and the testimony of Haynes. Haynes was re-
JANUARY TERM, 1845. 129
Clapp, et al. v. Mock, et al.
quired to answer, whether Clapp knew, before he obtained the
bills, the purposes for which they were made. In answer to this,
he says, that Clapp, "did know that the bills were executed for,
and in consideration of purchasing stock, in the Western Bank
of Georgia." Now, this, by no fair interpretation, means, that
Clapp knew, that Mock was to have any interest in the stock.
Clapp himself, distinctly admits in his answer, that he knew, that
Lathrop was purchasing stock from Haynes with the bills, at the
same time that he expressly denies, knowing any thing of Mock's
interest in the transaction, or the character of his indorsement.
It appears from a previous deposition of Haynes, that he did not
know, that Mock had any interest in the stock. He says, he be-
came the drawer of the bills, at the request of Lathrop, and that
Lathrop did not inform him, that Mock had any interest. He is
therefore, in the answer above quoted, speaking of the bills, and
not of the indorsement on the bills. Nor indeed, was the ques-
tion calculated to elicit any other answer. If it had been intend-
ed to inquire of the witness, as to Clapp's knowledge of the con-
tract between Mock and Lathrop, by which the former became
indorser on the bills, it should not have been framed in this ambigu-
ous manner, but the attention of the witness should have been di-
rectly pointed to it. We cannot understand by his answer, that
he intended to affirm Clapp's knowledge of a fact, of which he, a
party to the bill, was ignorant. The plain, and evident meaning
of the witness is, that Clapp must have known, that the bills were
for the purchase of stock, because, as he says in his answer, Clapp
had by letter informed him, that Lathrop had failed to pay the
money in Mobile, as he had agreed to do, and had promised to pay
in bills of exchange. This is a corroboration of the answer, ra-
ther than proof to the contrary.
The answer, expressly denying all the material allegations of
the bill, and there being no proof in contradiction of the answer,
but the evidence which it was admitted Lathrop would give, if
competent to testify, it is unnecessary to consider, whether he, a
complainant in the bill, could be examined as a witness for his
co-complainant, with, or without an order from the Chancellor ;
the rule being clearly established, that the answer of a defendant
responsive to the bill, of facts within his own knowledge, cannot
be overthrown by the testimony of one witness, unless it be aided
by other corroborating circumstances. None such exist in tho
17
130 ALABAMA.
Clapp et al. v. Mock, et al.
case. The answer is clear, explicit, and probable. On the other
hand, the case made by the bill originally, and that set up in the
amended bill, are essentially dissimilar, if pot incongruous. The
equity set up in the first bill, is, thatClapp and Haynes fraudulently
induced Lathrop to believe, that Haynes was the owner of stock
in the Bank, and thus induced the latter to become the purchaser
of stock, which had no existence — whilst in the second, it is the
knowledge of Clapp,of the agreement betwccnMock and Lathrop,
by which the former agreed to indorse the bills of exchange, in
the purchase of stock. There is nothing then, to relieve the case
from the operation of the rule.
It appears to have been supposed, that if Haynes was not the
owner of stock in the Bank, the bills of exchange would be inva-
lid, in the hands of Clapp. This is certainly incorrect, unless Clapp
could be implicated in the fraud of Haynes, which has been shown
not to be the case. Clapp, as it appears, was a stranger in the
country, endeavoring to collect a debt from Haynes, who, wheth-
er the owner of Bank stock, or not, was certainly in possession of
large means, and wielding a large amount of money — Lathrop,
by his own act, in procuring the bills to be drawn, induced Clapp
to relinquish the pursuit of Haynes, to take the bills in payment
of the debt, and to discharge him from the debt ; and it would be
extreme injustice,to visit upon Clapp, the consequence of the im-
prudence of Lathrop, or the fraud of Haynes, if fraud there was.
Nor can Mock be in any better condition, than Lathrop. He
entrusted the latter with his name, and if an improper use has been
made of it, the consequence cannot be visited upon one ignorant
of the facts.
It is, however, by no means certain, that Haynes was not able
to comply with his contract with Lathrop. Whether he had stock
in his own name or not, it is very clear he had the control of a
large amount. He swears that he had the control of more than
two thousand shares, more than half of which belonged to himself,
and upon which thirty-three per cent, had been paid: and it is cer-
tain, that subsequent to his contract with Lathrop, he did cause
to be transferred to him, five hundred and eighty-seven shares.
Upon this stock, a certificate issued to Lathrop, to be delivered to
him, on his paying $10,000 in cash, and executing his note for
$9,000 more, and upon his failure to comply, the stock became
forfeited to the company.
JANUARY TERM, 1845. 131
Kirksey v. Kirksey.
We are not informed, why this forfeiture was permitted to take
place, nor what the value of the stock was in its then condition.
If one-third part had been paid on it, as appears to be the in-
ference from Haynes' testimony, it was still of value sufficient,
supposing the stock to be at par, to satisfy the bills of exchange.
If, however, Lathrop was the dupe of Haynes, as perhaps may
be inferred from Pullum's testimony, where he says, that "Haynes
had control of a sufficient interest in said Bank at that time, (the
time of the transfer of the stock,) to have secured Lathrop, if he
had not wished to put him off upon the Bank, and thereby secure
to himself, the interest held by him, which interest he afterwards
forfeited, by becoming indebted to the Bank," it would only shew
the ability of Haynes to comply with his engagements to Lathrop,
when it was made, and that by a subsequent fraudulent contriv-
ance, he overreached him. On what principle of equity, could
this be visited upon Clapp, who was neither a party to the con-
tract, or a participant in the fraud.
From every view, which we have been able to take of this
case,theChancellor erred in the decree made by him, enjoining the
collection of the judgments, upon the bills of exchange ; his decree
must therefore be reversed, and a decree be here rendered, dis-
missing the bill
KIRKSEY v. KIRKSEY.
1. A brother-in-law, wrote to the widow of his brother, living sixty miles dis-
tant, thaiifslw would come and see him, ke wovldlet her have a place to raise
her family. Shortly after, she broke up and removed to the residence of
her brother-in-law, who for two years furnished her with a comfortable res-
idence, and then required her to give it up : Held, that the promise was a
mere grauity, and that an action would not lie for a violation of it.
Error to the Circuit Court of Talladega.
132 ALABAMA.
Kirksey v. Kirksey.
Assumpsit by the defendant, against the plaintiff' in error. The
question is presented in this Court, upon a case agreed, which
shows the following facts :
The plaintiff* was the wife of defendant's brother, but had for
some time been a widow, and had several children. In 1840,
the plaintiff" resided on public land, under a contract of lease, she
had held over, and was comfortably settled, and would have at-
tempted to secure the land she lived on. The defendant resided
in Talladega county, some sixty, or seventy miles off". On the
10th October, 1840, he wrote to her the following letter:
" Dear sister Antillico — Much to my mortification, I heard,
that brother Henry was dead, and one of his children. I know
that your situation is one of grief, and difficulty. You had a
bad chance before, but a great deal worse now. I should like
to come and see you, but cannot with convenience at present. *
* * I do not know whether you have a preference on the
place you live on, or not. If you had, I would advise you to ob-
tain your preference, and sell the land and quit the country, as I
understand it is very unhealthy, and I know society is very bad.
If you will come down and see me, I will let you have a place to
raise your family, and I have more open land than I can tend ;
and on the account of your situation, and that of your family, I
feel like I want you and the children to do well."
Within a month or two after the receipt of this letter, the plain-
tiff" abandoned her possession, without disposing of it, and remov-
ed with her family, to the residence of the defendant, who put her
in comfortable houses, and gave her land to cultivate for two
years, at the end of which time he notified her to remove, and
put her in a house, not comfortable, in the woods, which he after-
wards required her to leave.
A verdict being found for the plaintiff", for two hundred dollars,
the above facts were agreed, and if they will sustain the action,
the judgment is to be affirmed, otherwise it is to be reversed.
Rice, for plaintiff* in error, cited 4 Johns. 235; 10 id. 246 ; 6
Litt. 101 ; 2 Cowen, 139; 1 Caine's,47.
W. P. Chilton and Porter, for defendant in error, cited 1
Kinne's Law Com. 216, 218 ; Story on Con. 115; Chitty on Con.
JANUARY TERM, 1845. 133
Kirksey v. Kirksey,
29; 18 Johns. 337 ; 2 Peters, 182 ; 1 Mar. 535 ; 5 Cranch, 142 ;
8 Mass. 200 ; 6 id. 58 ; 4 Maun. 63 ; 1 Conn. 519.
ORMOND, J. — The inclination of my mind, is, that the loss
and inconvenience, which the plaintiff sustained in breaking up,
and moving to the defendant's, a distance of sixty miles, is a suffi-
cient consideration to support the promise, to furnish her with a
house, and land to cultivate, until she could raise her family. My
brothers, however think, that the promise on the part of the de-
fendant, was a mere gratuity, and that an action will not lie for
its breach. The judgment of the Court below must therefore be
reversed, pursuant to the agreement of the parties.
134 ALABAMA.
Wier V. Buford.
REPORTS
OP
CASES ARGUED AND DETERMINED,
JUNE TERM, 1845.
WIER V. BUFORD.
1. When, by the tenns of a written contract, money is to be paid to one, as
the agent of a. feme covert, the husband is not a competent witness to sus-
tain the contract in a suit by the agent to enforce payment.
2. When a feme coveH appoints one as her agent, to hire slaves, which, in
point of fact, belong to her children, and a hiring is actually made, the per-
son hiring is authorized to treat with the feme covert as the principal in the
contract, until he has notice that the contract enures to the benefit of others;
and her acts and declarations with reference to the slaves hired, will affect
the contract in the same manner as if she had a separate estate in the slaves,
or was acting in the premises by her husband's consent.
3. When a hired slave has left the service of the person to whom it is hired,
and has gone to the house of the one hiring it, a second demand is unne-
cessary, when one is made, and the person hiring consents to take the slave
if returned the next day.
Writ of Error to the Circuit Court of Marengo.
^ Debt on a sealed note, by Buford against Weir and others.
The declaration describes the note as payable to Buford gene-
rally, but when produced in evidence, it appeared to be payable
JUNE TERM, 1845. 135
Wier V. Buford.
to him, as the agent of Eleanor Williams, and the sum promissd
to be paid, was for the hire of two negroes, to wit : Fanny, Da-
ley and child, from the date of the note to the 25th December,
1842. It also provided that the slaves should be delivered to
Thomas Buford, as agent, at Demopolis, at the end of the time.
At the trial, the defendant produced a witness, who testified
that he was present the latter part of December, 1841, when Thos.
Buford, as the agent of Eleanor Williams, hired out, at public
auction, the two slaves named in the note, and that they were
bid off by Wier; Fanny at 1120 50. Also, that in the month of
April, or May, 1841, the woman, Fanny, ranaway from the house
of Wier, and that, at the request of Wier, the witness accompani-
ed him to the residence Mrs. Eleanor Williams ; that on their ar-
rival there, Wier inquired of Mrs. Williams, if the woman, Fan-
ny, was at her house; Mrs. Williams replied in the affirmative;
then Wier inquired, if she intended to give her up. Mrs. Wil-
liams replied, that according to the terms of the contract of hiring
by Wier, he was bound to pay for the hire of the slaves, and that
he had no right to retain them if he treated them cruelly ; or if
they were dissatisfied. Wier replied, that he did not wish to
have any difficulty with Mrs. Williams, and informed her, that
unless she returned the slave, Fanny, by the next day, he would
consider his contract of hiring, as to her, at an end. Also, that
the slave did not afterwards to return to Wier. It was further
shown, by the evidence, that the slave was frequently seen at the
house of Mrs. Williams, during the remainder of the year, and
was not again in the possession of Wier. The plaintiff thereup-
on introduced Samuel J. Williams, the husband of Eleanor Wil-
liams, who testified that the slaves mentioned in the note, did not
belong to his wife, but belonged to the minor children of himself
and her ; that the children have no legal guardian, but his wife
had requested Buford to hire out the negroes. The defendant
objected to this evidence upon the grounds — 1st. That Williams
was not a competent witness. 2d. That it is incompetent for the
plaintiff to show by parol evidence, that he acted in a different
qharacter from that disclosed by the note. This objection was
overruled.
The Court charged the jury, that if they should believe that
Mrs. Williams had a husband, at the time of the demand of the
slaves, by Wier, that Wier was bound to make the demand of the
136 ALABAMA.
Wier V. Buford.
husband, instead of the wife,'so as to rescind the contract of hiring;
and that if Mrs. Williams had no title to the slave in question,
she could not consent to a rescission of the contract. Also, that
if Wier gave her all the next day, after his application for the
slave, to decide whether she w^ould determine to return the slave,
then he was bound again to apply for her.
A deed of gift was also in evidence, showing that Fanny be-
longed to the children of Mr. and Mrs. Williams. No proof of
any demand, or effort to recoverFanny,by Wier, was offered, other
than as before stated. The slave was also frequently seen going
about the streets of Demopolis, apparently under the control of
no one.
The defendant excepted to the several matters before stated,
and are now assigned as error.
Hopkins, for the plaintiff in error, made the following points;
1. The husband was not a competent witness. [4 Ala. Rep.
696 ; 4 Term. 671, 679.]
2. It was not competent for the plaintiff to contradict, by parol,
the written admission on the note, that he was the agent of
Mrs. Williams. [Mead v. Steger, 5 Porter, 498; 2 Ala. Rep.
571.]
3. As the contract was made with Mrs. Williams, through her
agent, it was competent for her, by her acts or declarations, to
rescind the contract. [5 Porter, 320, 325 ; Story on Bail, 255,
256, 262 ; 1 Salk. 65; 1 Ala. Rep. N. S. 423.]
Peck, contra, insisted that Williams was competent, because
the money for the hiring was due, properly speaking, to the chil-
dren, and not to Mrs. Williams. The recital in the note, that
Buford was her agent, estopped no one, and the defendant, Wier,
was not authorized to treat with her, as having a separate, or any
other estate in the slaves.
GOLDTHWAITE, J.— 1. We think there was error, both
in the admission of the husband as a witness, and in the several
charges given to the jury.
It may be, that the plaintiff was not estopped from showing
that the slave in question did not belong to Mrs. Williams, but
was the property of her children ; but however that is, the evi-
JUNE TERM, 1845. 137
Wier V. Buford.
dence, when this was made to appear, had no effect, whatever, on
the rights of the parties. Concede that the slave did belong to
the children, it then proves only, that the hiring by Buford, was
an act authorized by the wife, the benefit of which would proba-
bly enure to her husband, if the hiring is to be considered a con-
version of the hire. Even if there was evidence, from which his
assent to the hiring could be inferred, it would amount to the
same thing, whether the hiring was to be paid either to her use,
or to his.
The test of the husband's interest, is the fact, that if Buford
shall receive the money upon this contract, he cannot dispute, that
Williams or his wife, is, one of them, entitled to receive it. He
cannot dispute their claim to it, unless some other persons inter-
pose and compel a payment. In this view, we think it clear, that
Williams was an incompetent witness.
2. The more material inquiry, however, is, as to Wier's right
to treat with Mrs. Williams as the principal in the contract, and
to claim a discharge through her acts. And this seems to rest
on grounds very similar to the other point. At the hiring, Bu-
ford announces that he acts as the agent of Mrs. Williams ; the
note expresses the same thing. Now, it is not very material,
whether Wier knew that she had a husband, or whether he was
ignorant of the fact. If he knew it, it was fair for him to presume,
either that the wife had a sole and separate estate in the slave, as
Buford acted as her agent, and not as her trustee ; or that her
husband permitted her to act for herself. Whatever was the fact,
the contract was made substantially with her, and mitil Wier
had notice, that in legal effect, it enured to the benefit of others,
he was entitled to treat with her as a principal. So too, if in point
of fact, as seems to have been shown, she, or her husband, had no
title to the slave, this is a matter, that neither will be allowed to
dispute, so as to cast a liability upon Wier, different from that as-
sumed by him. By the hiring, she held herself out as entitled to
act in the premises ; her agent cannot refuse credit to her acts,
and receive the benefit of the contract at the same time.
3. The remaining question, that it was necessary for Wier to
make a demand of the slave, after the day during which he per-
mitted her to be so returned, scarcely requires an examination.
If his interview with Mrs. Williams, is to be considered as a de-
18
138 ALABAMA.
Manning v. Manning, et al.
mand on his part, and a refusal on hers, there he might have rest-
ed the matter; but if, instead of doing so, he consented to receive
the slave, if she would return the next day, this did not bind him
to demand her again.
Judgment reversed and cause remanded.
MANNING V. MANNNING, ET AL.
1. A note, or other security, given in consideration of money won at gaming,
is void in the hands of an innocent holder, for a valuable consideration,
unless he was induced to take it, by the representations of tlie maker.
2. The payee of a gaming note, who has transferred it to another, is a com-
petent witness for the maker, and may be compelled to testify as to the
consideration of the note, upon a bill in Chancery, filed by the maker
against the indorsee.
3. Whether his testimony could be used against htm, as an admission, upon
a criminal prosecution for gaming — Queref
4. Where the allegations of the bill were, that the indorsee of a note, knew
when he obtained it, that it was made upon a gaming consideration, and
he is called on by an interrogatory, to state under what circumstances
the same was assigned to him, his answer, that before the note was indors-
ed to him, the maker informed him, it was good, and he had no offsets against
it, is not responsive to the bill.
Error to the Chancery Court of Madison.
The bill was filed by James Manning, who alledges, that he
left his signatures on blank sheets of paper, with Robert J. Man-
ning, with the distinct understanding, that they should be used on-
ly in business transactions; that on the 11th October, 1839, by
writing his own name, and the form of a note, over one of these
signatures, R. J. Manning made the joint note of himself and com-
plainant, negotiable and payable at the Branch Bank at Decatur,
for $1,900, payable twenty-four months after date, to defendant,
Blevins, who indorsed it to Kavanaugh, by whom it was indors-
JUNE TERM, 1845. 139
Manning v. Manning, et al.
ed to Turner, who obtained a judgment on the note, against R. J.
and James Manning, in the Circuit Court of Madison, by default.
That R. J. Manning has left the State, and gone to Texas. That
the note was executed to Blevins upon a gaming consideration, to
which the complainant gave no consent, and of which he had no
knowledge. That he is informed, and believes it to be true, that
Kavanaugh and Turner, at the time they respectively became the
assignees of the note, knew that it was founded solely on a
gaming consideration. That from an inspection of the note, it
appears, there was once a credit of one thousand dollars upon it,
which has since been partially erased, but is still legible. The
prayer of the bill is, that all these parties be made defendants, and
answers thereto be required to make, &c., &c. "Your orator
calls on each of the parties to state the consideration of said note,
according to his knowledge, information, and belief. Let said
Kavanaugh and Turner each state, for what consideration, and
under what circumstances the same was assigned to him, and let
them all state how the credit came to be erased."
Blevins denies knowing any of the matters in relation to the
note, between complainant and R. J. Manning; admits he receiv-
ed the note from the latter, in consideration of money won from
him at cards. That he assigned the note to Turner, (having pro-
cured Kavanaugh to indorse it for his accommodation,) in the
purchase of a race horse and two hundred dollars ; does not know
that Turner, or Kavanaugh, knew of the consideration of the
note.
Kavanaugh admits he indorsed the note for the accommoda-
tion of Blevins ; did not know any thing about the consideration.
Turner admits the purchaseof the note from Blevins, in the fall of
1839, forhis interestin the racehorse Bustamente,andtwo hundred
dollars in addition, which he has paid. « That before he received
said note, he asked the complainant if he had any offsets, and told
him he was about trading for the note. That complainant inform-
ed him he had no offsets, and the note was a good one," and there-
upon he took the note ; and that after he received the note, he
again informed complainant of it. That he knows of no gaming
between Blevins and R. J. Manning, so far as this note is con-
cerned ; nor did he suspect that such was the case, when he pur-
chased said note, nor did he ever hear that the note was given for
money won at cards, until the filing of the bill. The credit up-
140 ALABAMA.
Manning v. Manning, et al.
on the note was indorsed in consideration of a bet, won by R.J.
Manning of him, and one J. R. Acklin, on the Presidential elec-
tion, which he entered witout consulting the parties, and that R.
J. Manning, being indebted to Acklin in a larger amount the lat-
ter agreed to receive payment from Acklin, of the bet which he
had won.
In an amended answer, he states that he purchased without
any knowledge of the illegal consideration of the note; « that he
had neither knowledge, information, or belief of it, at any time, at
and before the time, when he purchased and paid for it. He
never knew, or heard, or suspected any thing of the kind, until
long after all this, and does not now know, or admit it."
An order was made to take the deposition of Blevins, subject
to any exception to his competency, and also whether he was
compelled to testify. In his deposition, he states, that the note
was executed to him by R. J. Manning, for money won at cards.
Other testimony was taken not necessary to be recited.
The Chancellor, considering the answer of Turner, stating that
he applied to the complainant for information about the note, be-
fore he traded for it, responsive to the bill, and also considering,
that Blevins was not a competent witness, dismissed the bill.
From this decree an appeal was taken to this Court.
McClung and A. R. Manning, for plaintiff in error. The
ground upon which the Chancellor suppressed the deposition of
Blevins, is clearly untenable. The decision in Walton v. Shel-
ly, 1 Term. 296, upon which he relied, has been long since over-
ruled in England, 7 Term, 601, and also in this Court, 9 Porter,
225 ; id. 406 ; 3 Ala. Rep. 93; 5 id, 385.
Nor can he withhold his testimony, from fear of criminating
himself, as the statute compels him to make a discovery. [Clay's
Dig. 350; 3 Ala. Rep. 477.] But in this case, the statute of
limitations had operated a bar before the testimony was taken.
Turner, in effect, admits that the note was founded on a gam-
ing consideration, Blevins proves it, and the statute declares it
void ; it is so, therefore in the hands of an innocent holder, for
value. [Chitty on Bills, 111; 2 Dana, 414; 7 Porter, 256; 5
Ala. Rep. 353 ; id. 708.]
The answer of Turner, stating that the complainant informed
him that there was no objection to the note, and that he took it up-
JUNE TERM, 1845. 141
Manning v. Manning, et al.
on the faith of such representation, is incredible, and wholly in-
consistent, with the admitted facts of the case, but if entitled to
credit, it is not responsive to the bill, or to any allegation, or in-
terrogatory contained in it, and was therefore not testimony for
him. The interrogatory under which it is supposed this part of
the answer is responsive, merely calls on him to state the attend-
ing circumstances, which is nothing more than he would have
been required to do if there had been no such interrogatory. The
effect and meaning of the interrogatory, must be ascertained by
the stating parj of the bill, which is wholly silent as to any
such conversation. [Cooper's Eq. 11, 12 ; Story's Eq. P, §§ 35,
36, 38.]
If this were not so, there could be no recovery on the note, as
that is utterly void, but in an action upon the nnisrepresentation.
[1 Porter, 57.]
The counsel also cited, Douglass, 736 ; 2 B. & A. 590 ; 8
Price, 288; 2 Str. 1153 ; Bayley on Bills, 237 ; 5 Ala. Rep. 334.
S. Parsons, contra. Conceding that this note would be void,
in the hands of an innocent holder, for value, without notice, the
holder must recover in this case, because he took the note on the
representation of the complainant, that there was no defence to
it ; and although the note in its inception might have been void,
the new consideration upon which it was taken, would be suffi-
cient to sustain an action upon it, against such party, whether
the maker, or a third person. [Chitty on Bills, App. 816; 2
Starkie's Rep. 232 ; 1 Camp. 165 ; 4 B. & A. 212 ; 6 Bingham,
109 ; 2 Starkie Ev. 28-9 ; 16 Mass. 397 ; 12 id. 281 ; 5 id. 201 ;
2 Starkie Rep. 90.]
An examination of the bill, will fully satisfy the Court, that the
answer of Turner was responsive to the bill.
The statute giving Chancery jurisdiction, was not intended to
uproot all the rules of a Court of Equity, and where it would be
inequitable to grant relief, the statute does not apply. Upon a
statute similar to ours, in England, against gaming, the Courts
refused to set aside a judgment, upon a power of attorney made to
secure a gaming debt, when the party making it had declared to
the purchaser that it was valid. [1 B. & Adol. 142 ; see also, 3
Ala. Rep. 458.] He who seeks equity, must do equity, that is,
142 ALABAMA.
Manning v. Manning, et al.
must act justly ; and certainly nothing can be more unjust, than
such a defence.
Blevins was not a competent witness. The admissions of a
vendor, after a sale, are not evidence against the purchaser. [1
Smith C. P. 340.] He was also incompetent from interest, and
because he was a party upon the record, interested in the event,
as the decree would be evidence, as between him and Turner,
his indorsee, for a valuable consideration. [1 Gressly's Eq. 243;
2 Starkie Ev., 1 ed., 392 ; 3 Johns. C. 371, 612 ; 3 Atkins, 401 ;
1 Johns. Rep. 518.]
ORMOND, J. — The object of this bill is, to obtain relief against
the payment of a note, upon the ground, that it was executed up-
on the consideration of money won at cards. The decree is
sought upon two statutes of this State. One, passed in 1807, de-
clares, that "all promises, agreements, notes, bills, bonds, or oth-
er contract, judgment, &c., made, &c., upon any gaming conside-
ration, shall be utterly void and of no effect, to all intents and
purposes whatsoever." [Clay's Dig. 257, § 1.] And in 1812, it
was enacted, that " the Courts of Equity shall have jurisdiction in
all cases of gambling consideration, so far as to sustain a bill
for a discovery, or to enjoin judgments at law." [lb. 350,
§28.]
Upon the construction of this last act, it has been held by this
Court, that to give Chancery jurisdiction, it was not necessary to
assign any reason for not making defence at law, the design of
the legislature being to extirpate the evil practice of gaming, and
to afford every possible facility for putting it down. [Cheatham
V. Young, 5 Ala. R. 353.] In confirmation of this view, it may be
stated, that the legislature have since declared, that money actu-
ally paid, may be recovered back by the loser. So in Fenno v.
Sayre & Converse, 3 Ala. Rep. 458, it was held, that one ob-
ject of the statute, was to compel the winner to answer, which,
but for this statute, he might have refused, from his liability to a
public prosecution.
As it respects the act first cited, it has never been necessary,
hitherto, for this Court to determine its effect, in regard to the
rights of an innocent holder, for a valuable consideration, of a se-
curity given for money won at play ; but we entertain no doubt
whatever, that it is utterly void. The statute, in effect declares.
JUNE TERM, 1845. 143
Manning v. Manning, et al.
that it never had a legal existence, and makes it " utterly void,
and of no effect, to all intents aud purposes whatsoever." And,
indeed, if such were not the true construction of the statute, it
would, in effect, be a dead letter, as such securities, would always
be found in the hands of innocent holders, for value.
Such is the uniform tenor of the English decisions upon the
statute of 9 Anne, c. 14 ; see the cases cited on the brief, and the
authorities cited in the notes to Chitty on Bills, 9 Am. ed. Ill,
which in its terms is precisely equivalent to ours.
The same conclusion has been attained, in regard to a note
tainted with usury. [Metcalf v. Watkins, 1 Porter, 57.] Al-
though, therefore, the bill alledges, that Turner, the holder, knew
that the note was executed for a gaming consideration, when he
received it, it is wholly immaterial and need not be proved ; the
only question upon this part of the case, is, whether the note is, in
fact, a security given upon a gaming consideration.
Wo decline entering upon the consideration of the effect of the
answer of Turner.as to this point of the case, because the conside-
ration of the note is proven by Blevins,to have been money won at
cards. This testimony was rejected by the Chancellor, because
it was against public policy, to permit a party to a negotiable se-
curity to impeach its consideration. This doctrine, first asserted
in Walton v. Shelly, 1 Term Rep. 29G, has been long exploded
in England, and never was recognised in this Court, but the oppo-
site opinion asserted, in numerous cases, to be found in our books,
and cited by the plaintiff's counsel.
It is now further argued, that he was interested in the event of
the suit, as a decree founded upon the illegal consideration of the
note, would render him liable over to his indorsee. Conceding
such to be the fact, he was clearly competent to testify against
his interest, which was the attitude in which he was placed, by
being called by the plaintiff in error.
The witness objected to testifying, and his testimony was taken
subject to all exceptions ; it is now insisted, that he could not be
compelled to testify. The State, as already observed, requires
a party in the predicament of the witness, to answer, and thus to
give evidence against himself, and no reason is perceived why
he should be excused from testifying, when he has transferred his
interest to another. If that should be the construction of the sta-
tute, nothing would be easier than to evade it. No question as
144 ALABAMA.
Manning v. Manning, et al.
to his liability to a criminal prosecution arises in this case, from
this admission, not only because he had admitted the same fact
previously, in his answer to the bill, but also, because the statute
of limitations hud created a bar to a criminal prosecution, before
he was called on to give evidence. Whether in any case, the
testimony thus compulsorily drawn from a witness, could be used
against him upon a criminal proceeding, we need not inquire at
this time.
We now approach the only point of difficulty in the case —
the fact disclosed in the answer of Turner, that he took the
assignment of the note, upon the assurance of the plaintiff in
error, that it was valid ; and if so, whether the answer is, as to
this fact, responsive to the bill, and to be considered evidence in
the cause.
Whatever may be the rule at law, we are satisfied, that in equi-
ty, the maker of a gaming security cannot have relief against an
innocent holder, whom he has induced by his promise of payment,
or by an assurance, that the note was valid, to invest his money
in its purchase. To this effect are the cases of Beverly v. Smith,
1 Wash. 297, and Hoomes v. Smock, id. 390, upoh the principle,
that it would be a fraud upon the purchaser, to permit such a de-
fence to be made. It is therefore necessary to inquire, whether
the answer is, in this respect, responsive to any allegation of the
bill. The defendants are called on to state the consideration of
the note, and each is required to state, " under what circumstan-
ces the same was assigned to him^
The interrogating part of the bill, is not absolutely necessary;
its whole design seems to be, to point more specially to the charg-
es, and thus to sift the conscience of the defendant. Special in-
terrogatories, when introduced into a bill, must be founded on, '
and authorized by, the stating part of it, or they may be disre-
garded by the defendant; although, if answered, and replied to,
the matter is put in issue. [Fenno v. Sayre & Converse, 3 Ala.
Rep. 477 ; Coop. Eq. P. 11.] It is obvious, however, 'that where
the import of an interrogatory is doubtful, its true interpretation
must be sought in the stating part of the bill.
In the stating part of the bill, no fact is alleged from which it
can be inferred, that the complainant had any knowledge what-
ever, of the facts relating to the assignment of the note. On the
contrary, he professes utter ignorance of them. The leading idea
JUNE TERM, 1845. 145
. i . :
Manning v. Manning, et al.
which pervades the bill, is, that both Turner and Kavanaugh
successive assignees of the note, knew when they obtained it, or
at least had reason to believe, that the consideration was illegal.
This is expressly charged in the bill, and the interrogatory fram-
ed upon it, is to state the circumstances attending the assignment,
which indeed, is no more than would have been their duty, if no
such interrogatory had been inserted in the bill. The design
doubtless was, to get at some fact, or circumstance, showing a
knowledge of the consideration of the note, which appears to have
been supposed necessary.
The alledged conversation between the complainant, and Tur-
ner, is not a circumstance attending the assignment of the note, or
connected with it. It is evidently matter in avoidance, not in
the slightest degree hinted at in the bill. It is the defence of the
defendant, wholly distinct and separate from the case made by
the bill, and interrogatory, and which, to be available to him, must
be proved by him. This could not naturally have found its way
into the bill, and cannot be derived from the general interrogatory
above cited, which is founded on, and has reference to, a distinct
matter. See the case of Marshall v. the Huntsville Bank, 4 Ala.
Rep. 60, andCummings & Cooper v. McCullough,5 Ala. Rep. 333,
where this subject is quite fully considered.
The allegations of the bill, as to the manner in which the com-
plainant became a party to the note, are not denied, and although
not proved, must be considered as true, as they cannot be ex-
plained upon any other hypothesis. It is not pretended by Blev-
ins, or any of the defendants, that the complainant was present
when the note was executed. Yet we find that it was made pay-
able directly to Blevins, thus showing very conclusively, that it
must have existed in a blank form previous to that time. It could
not be evidence of a debt from complainant to R. J. Manning, be-
cause both parties appear as makers ; nor could it be a debt due
jointly by them, to some third person, because, in that event,
Blevins could not appear as the payee. The allegations of the
bill on this point, are entirely consistent with the admitted facts,
and must therefore be considered as true. It is, however, unim-
portant, whether the complainant did, or did not know of the ille-
gal consideration, as the statute vitiates the note, in the hands of
an innocent holder, for value. The defence set up in the answer,
that the defendant. Turner, was induced to take the note, by the
19
146 ALABAMA.
Butler and Wife v. The Merchants' Insurance Company of Mobile.
representations of the complainant, that it was good, not being
proved, it follows, that the complainant is entitled to the relief he
seeks by his bill. The decree of the Chancellor must there-
fore be reversed, and a decree be here rendered, perpetuating
the injunction.
BUTLER AND WIFE vs. THE MERCHANTS' INSU-
RANCE COMPANY OF THE CITY OF MOBILE.
1. By the third section of the bankrupt act of 1841, not only tlie property in
possession, but actions pending, and mere rights of action, of every one
who is regularly declared a bankrupt, vest eo instanti, in the assignee ap-
pointed for that purpose.
2. Where the husband conveys, by way of release, to the wife, for her sole use
and benefit, all the right, title and interest, he had acquired, by virtue of
their marriage, tc certain stock in an incorporated company, as also the
right to sue the company for permitting the unlawful transfer tliereof, such
a conveyance will be inoperative at law; and the rights of tlie husband at-
tempted to be released, will, upon his being declared to be a bankrupt, vest
in the assignee in bankruptcy.
Writ of Error to the County Court of Mobile.
The plaintiffs in error declared against defendants in an action
on the case ; stating that Helen N., at and before her intermar-
riage with her co-plaintiff, Thomas J., was entitled to, and pos-
sessed in her own right, and as her own property, of fifty shares
of the capital stock of the defendant, (a corporation,) of the value
of ten thousand dollars ; which stock was then, and previously,
standing in her name in the books of the Company. That He-
len N., before her mari'iage, and herself and husband since, were
entitled to the dividends, &c. accruing on that stock, and to have
and demand the same of and from the defendant. It is averred
that the defendant, in violation of the rights and property of Helen
N., before her intermarriage with her co-plaintiff, suffered the
fifty shares of stock to be transferred on the books of the corpo-
JUNE TERM, 1845. 147
Butler and Wife v. The Merchants' Insurance Company of Mobile.
ration, without her authority, (or that of any person duly author-
ized,) to Samuel St. John, jr., and the certificate that had been
previously issued by the Company to her was cancelled and re-
voked, so that the stock, with the dividends thereon, were wholly
lost, &c.
The defendant pleaded, that the plaintiff, Thomas J., after his
marriage with Helen N., and after the accrual of the several
causes of action in their declaration mentioned, became a bank-
rupt, under and according to the act of Congress, passed August
19, 1841; and the District Court of the United States for the
Southern District of Alabama, in pursuance of that act, previous
to the commencement of this suit, declared Thomas J. a bank-
rupt, and such further proceedings were had in that Court, that
he received his final certificate and discharge, &c. It is then
averred, that all the property, and rights of property, of Thomas
J., with the exception specified in the act, vested in Ptolemy T.
Harris, the assignee appointed by the District Court, &c. ; and
the shares of stock supposed to be held by Helen N., and claims
for dividends thereon, vested in the assignee.
The plaintiffs replied, that before their intermarriage, the de-
fendant had permitted the transfer of the stock as stated in the
declaration, and that after their intermarriage, but before the ap-
plication of the said Thomas J. for the benefit of the bankrupt
act, and before any decree was rendered against him, he did con-
vey, by way of release, to the said Helen N., for her sole use
and benefit, all the right, title and interest he had acquired by
virtue of their marriage, to the stock, as also the right to sue the
defendant for permitting the unlawful transfer thereof.
The defendant craved oyer of the release set it out, and demur-
ed. The release bears date six days before the plaintiff, Thomas
J. was declared a bankrupt, and recites that Helen N., previous
,jty the intermarriage of herself and co-defendant, was entitled to
certain property and estate, rights and credits in her own right,
and also to all the benefits secured to her by law as the heiress
of her father Joshua B. Leavens, then deceased; as well as the
benefits accruing to her under the will of her father, recorded in
the County Court of Mobile. All which estate of Helen N., then
unsettled, remained in the hands of the executor of Joshua B.,
undisturbed and undivided, not recovered, nor in any manner
reduced into possession by Thomas J. And Thomas J. having
148 ALABAMA.
Butler and Wife v. The Merchants' Insurance Company of Mobile.
determined not to take any steps to reduce the choses in action,
&c. of his wife into possession, but has elected to abandon the
same, and renounce all his marital rights therein, and release to
Helen N. his contingent marital right unto her said separate
estate and choses in action, and to vest in her full and exclusive
power to recover and reduce the same into her own possession,
should she think proper so to do, for her sole and separate use
and benefit, and the benefit of her heirs, &c. free from all claims
of her husbcnd, and all others claiming through or under him. —
The instrument then proceeds to release, &g., to Helen N., her
heirs, &c., forever, all his claim, right, interest, property, &c.
in and to every thing to which she was entitled, either in law
or equity, in consequence of his marriage with her, and which
he had not reduced into possession ; so that the same may
be recovered by Heleft N., and held and enjoyed by her in her
sole and separate right, &c. The demurrer was sustained, and
the plaintiff declining to plead further, judgment was render ed
for the defendant.
Dargan, for the plaintiffs in error, made the following points :
1. If an incorporated company improperly transfer stock stand-
ing in the name of a subscriber, so that the stockholder's right is
reduced to a mere chose in action, he may maintain an action
against the company. [9 Eng. Com. Law, 444 ; 2 Eden's Rep.
299.]
2. The right, of the wife, being a chose in action at the time
of the marriage, did not vest absolutely in the husband, and his
deed in favor of the wife, vested the entire and exclusive interest
ia her. [2 Brock. Rep. 285 ; 3 Paige's Rep. 440 ; 4 Id. 64 ; 10
Peters' Rep. 594 ; 1 Atk. Rep. 259, 270-1 ; 5 Ves. Rep. 78 ; 2
Swanston's Rep. 109.] And the subsequent bankruptcy of the
husband did not impart to the assignee the right to sue for the
improper transfer of the stock. [Owen on Bankr. 125 ; Eden on
Bankr. 192 ; 1 Term Rep. 356, 619 ; 3 Bos. & P. Rep. 40 ; 1
M. & S. Rep. 326 ; 1 P. Wms. Rep. 316.]
3. It is supposed by the defendant's counsel, that the plaintiff,
Thomas J., must have filed his petition in bankruptcy before the
deed of release was executed, because it bears date but six days
before the decree adjudging the petitioner a bankrupt was ren-
dered, and the act of Congress requires that twenty days shall
JUNE TERM, 1845. 149
Butler and Wife v. The Merchants' Insurance Company of Mobile.
intervene between the filing of the petition and decree. The
date is an immaterial part of a deed, and may be shown to be
untrue — it cannot outweigh upon demurrer, the allegation that
the deed was executed before the petitioner sought the benefit of
the bankrupt law ; otherwise the plaintiff would be prevented
from showing that the deed was made and delivered long before
it bears date. It must be intended from the replication that the
release was executed before the petition was filed.
The application of Thomas J. was voluntary, and could be dis-
missed by him at any time until the final decree was rendered ;
neither his wife nor creditors could control him in the prosecu-
tion of his suit. The interlocutory decree did not vest in the as-
signee, the wife's choses in action, or take from the husband the
right to relinquish to her his claim to them. The release does
not operate as an original conveyance, but as a mere renuncia-
tion of title to one who has a paramount equity. The husband
might refuse to reduce the wife's choses in action into possession,
and he may have avowed such to have been his determination be-
fore he filed his petition in bankruptcy ; if so, the institution of
that proceeding voluntarily, would not render the release inope-
rative,
J. A. Campbell, for the defendant. — The replication admits
the fact that a decree was rendered in pursuance of the act of
C ongress, but contradicts the release as to the time when the pe-
tition was filed. This contradiction could only be taken advan-
tage of by cravingoyer oftherelease, setting itoutand demurring.
[1 Chit. Plead. 415, 660; 1 Saund. Rep. 468, and notes.] Tak-
ing the date of the release to be true, and it is obvious that the pe-
tition was filed before it was executed ; and there must have been
twenty day's notice of the petitioner's application, in order to
make the decree regular — this it must be supposed was given.
[3 § of Bankr, Act of 1841 ; Eden's Bankr. Law, 205.]
The facts set forth in the replication does not avoid the bar of
the plea. [2 § Bankr, Act. of 1841.] A court of law recogni-
zes no dealing between the husband and wife ; though a Court
of Chancery will sometimes sustain a settlement or other equiva-
lent act by the husband, yet a court of law will treat it as inva-
lid. In a case like the present, the wife could assert her rights
against the assignee, under all the equities of the case. [2 Vem.
150 ALABAMA.
Butldr and Wife v. The Merchants' Insurance Company of Mobile.
Rep. 565; 1 P. Wms. Rep. 458; 2 Atk. Rep. 562; 1 N & McC.
Rep. 33; 1 Green's Rep. 398.] The choses in action of the wife
vest in the assignees of the husband, at least so far as to prevent
the latter from making any disposition of them. [Roper on H.
and Wife, 140 ; 1 P. Wms. Rep. 248 ; 3 Vesey's Rep. 617 ;
Clancy on Rights, &c. 476 ; 2 Kent's Com. 138.]
As to the plea, it is believed to be free from objection. [1 Chit.
Plead. 17 ; 15 East's Rep. 622 ; 11 Eng. Com. Law Rep. 348.]
COLLIER, C. J. — The third section of the bankrupt act of
1841, enacts " That all the property and rights of property, of
every name and nature, whether real, personal or mixed; of eve-
ry bankrupt, except as is hereinafter provided, who shall by a de-
cree of the proper court be declared to be a bankrupt within this
act, shall by mere operation of law, ipso facto, from the time of
such decree, be deemed to be divested out of such bankrupt, with-
out any other act, assignment, or other conveyance whatsoever ;
and the same shall be vested by force of the same decree, in such
assignee as from time to time shall be appointed by the proper
Court for this purpose," &c. " And the assignee so appointed,
shall be vested with all the rights, titles, powers and authority to
sell manage and dispose of the same, and to sue for and defend
the same, subject to the orders and direction of such court, as ful-
ly to all intents and purposes as if the same were vested in, or
might be exercised by such bankrupt before or at the time of his
bankruptcy declared as aforesaid ; and all suits at law or in equi-
ty then pending, in which such bankrupt is a party, may be pro-
secuted or defended by such assignee to their final conclusion, in
the same way and with the same effect as they might have been
by such bankrupt," &c. There is a pi'oviso, which excepts from
the provisions of this section, household and kitchen furniture, &c.
not exceeding in value, in any case, the sum of three hundred
dollars ; also the wearing apparel of the bankrupt, &c.
The terms of this enactment are exceedingly comprehensive,
and operate not alone upon the property of the bankrupt, of which
he is in possession, but upon actions pending, and mere rights of
action ; so that it is important to inquire, whether the husband at
the time of the application tobe discharged as a bankrupt,had any
right growing out of the cause of action stated in the declaration.
Marriage, it is said, operates as an absolute gift to the husband
JUNE TERM, 1845. 151
Butler and Wife v. The Merchants' Insurance Company of Mobile.
of all the personal chattels of the wife which were in her posses-
sion at the time of the marriage. Choses in action are mere
rights, arising from contracts expressed or implied, which must
be asserted at law for the purpose of being reduced into posses-
sion, as money due on simple contract or by specialty, damages for
the breach of promises expressed or implied, &c. When such
rights of action belong to a woman at the time of her marriage,
they become vested in her husband and he acquires a qualified
property in them ; that is he may reduce them into possession
during his wife's life-time, and then they become his property ab-
solutely ; but if he die without having reduced them into posses-
sion, they become his wife's by survivorship, and if she die in the
life-time of the husband, he shall have them only as her adminis-
trator. [Clancy on H. and Wife, 2-4 ; 2 Kent's Com. Lecture
28, on H. and Wife ; Legg vs. Legg, 8 Mass. Rep. 99-101 ;
Howes V. Bigelow, 13 Id. 384 ; Stanwoood v. Stan wood, 17
Mass. Rep. 57.]
The right of the husband to the wife's choses in action, is re-
cognized bylaw as something valuable, and may be disposed of
by him, so as to cut off her right of survivorship, though they be
not reduced into possession. Thus it may be barred by a settle-
ment, either before or after marriage ; by a release of the de-
mand ; by an award of payment to the husband ; by a judgment
and execution at the suit of husband and wife ; by husband's as-
signment for valuable consideration, &c. [Clancy on H. and
Wife, 110-136.]
It is a rule of the English Common Law, that a married wo-
man cannot possess personal property, and that every thing of
this nature to which she is entitled at the time of her marriage,
and which accrues in her right during its continuance, is vested
solely in her hnsband ; they are but one person, and all the rights
and duties which are her's at the period of the marriage, become
his during it s continuance. Hence, it is said that a man cannot
by any conveyance at the common law, limit an estate to
his wife, and if a joint estate be conveyed to husband and wife,
and a third person, the husband and wife would take a moiety.
The unity of their persons, disables her to possess personal pro-
perty, and the husband being the head of the wife, all that she
hath belongs to him. [Clancy on H, and Wife, 1, 2; 2 Steph.Com.
296; 2 Kent's Com. 136.]
152 ALABAMA.
Butler and Wife v. The Merchants' Insurance Company of Mobile,
These are the rights and disabilities of the wife, at law, so far
as it is necessary now to consider them. But the husband may
grant to, or contract with a third person, as trustee fo.i the wife ;
and if he conveys land to a third person, to her use, that will be an
effectual conveyance under the statute of uses. [2 Steph.Com.
297.] If the husband makes a gift to his wife to her separate use,
equity will regard him as a trustee ; and if a conveyance be thus
made by a third person without the interposition of a trustee, the
husband will be considered such. [2 Kent's Com. 136; Clancy
on H. and Wife, 256-261.]
The release (as it is called) to Mrs. Butler by her husband, is
not the mere abandonment or discharge of a right of action ;
whatever the terms employed may be. If operative at all, it must
be as a conveyance among other things of the husband's interest
in, or right to the choses in action of the wife, which have not
been realized by him. Releases, it is said, frequently operate as
conveyances. [2 Bouvier's Die. tit. Release.] Assuming such
to be the character of the writing under which the title of the
wife is attempted to be sustained, and the conclusion necessarily
follows, that it is inoperative at law for all purposes. The effect
of a conveyance (we have seen) from the husband directly to the
wife, is not to invest the latter with any rights which a court of
law will recognize ; but as it respects that forum, the thing grant-
ed remains in the same predicament in which it was before the
deed was executed. If the husband convey directly to the wife,
property of which he is in possession, if the conveyance could
operate to invest the wife with the legal title, as her head, and in
virtue of the unity of their persons, her title would immediately
vest in him : and a conveyance by the husband to the wife of
his interest in her choses in action, would be alike inoperative, to
take from him the right to sue for or assign them. A Court of
Equity, in such case, is alone competent to give effect to such
deeds, if they can be upheld. [2 Brock. Rep. 285 ; 3 Paige's R.
440 ; 4 id. 64 ; 10 Pet. Rep. 594.]
This brings us to the conclusion, that the wife, in the present
case, can claim nothing from the release ; and our inquiries might
now close, but we will add a few words upon the effect of the
husband's bankruptcy. It is said to be now settled, that neither
the assignment produced by the bankruptcy, or the insolvency of
the husband, will defeat the wife's title by survivorship to her
JUNE TERM, 1845. 153
Lamkin v. Crawford.
choses inaction. [Clancy onH. and Wife, 124.] Owen, in his
Treatise on Bankr. 118-122, says, that property, which the hus-
band is entitled to in right of his wife, either upon or after his
marriage, passes to the assignee, subject to the equity of the wife,
and if the same be in the hands of trustees, or executors, or in
other words not reduced into the husband's possession at the time
of the issuing of the decree, the wife may claim her equity for a
settlement; and if the assignee, in such case, file a bill in equity
to recover the wife's property, equity will not interfere to relieve '
him, except upon the terms of making a suitable settlement upon
the wife and children. But if the assignee can recover without
the intervention of a Court of Equity, it is said by the same au-
thor, that he will not be bound to make a settlement on the wife.
Whether, if the deed in question, before the husband applied for
the benefit of the bankrupt law, a Court of Equity would not give
to the wife the entire benefit of it, is an enquiry aside from the
present case.
The view we have taken, is conclusive of the cause as present-
ed by the record ; the consequence is, that the judgment of the
Circuit Court must be affirmed.
LAMKIN v. CRAWFORD.
1. A purchaser at sheriff's, sale, who refuses to comply with the contract of
purchase, is liable to an action by the sheriff, and the right to recover the
full price cannot be controverted, if the sheriff, at the time of tlie trial, has
the ability to deliver the thing purchased, or if that has been placed at the
disposal of the purchaser, by a tender. The loss actually sustained by the
seller, is, in general, the true measure of damages when tliC purchaser re-
fuses to go on with the sale.
2. When the sheriff has re-sold the thing which the first purchaser has refus-
ed to pay for, there is an implied contract by the first purchaser to pay the
difference, which is thus ascertained between his bid and the subsequent
sale ; and a count upon a contract to pay the same is good.
20
154 ALABAMA.
Lamkin v. Crawford.
3. Where a sale is made by private indviduals, tlie same rule does not apply,
and in such a sale, to let in a recovery of the difference between the
sales, it must appear that the one last made, was under such circumstances
as will indicate that a fair price has been obtained.
4. There is, however, an exception to the rule, that the sheriff may recover
the difference between the sales, and that is, when the first purchaser is
himself tlie owner of the property sold, as the defendant in execution, or
from having purchased it from tlie defendant in execution, after its lien has
attached. In such a condition of things, the surplus, after satisfying the
execution, belongs to the party purchasing.
5. It is no defence to an action by the sheriff, against a purchaser refusing
to go on with the sheriff's sale, that the thing purchased was not the pro-
perty of the defendant in execution. That is a matter to be ascertained by
the purchaser previous to bidding, and cannot be urged against an action
for the price. Quere — ^If relief could not be afforded by the Court upon a
proper application.
Writ of Error to the Circuit Court of Lowndes.
Assumpsit by Crawford, for the use of William T. Streety,
against Lamkin. The declaration has three counts, which were
severally demurred to. The first count sets forth, that Craw-
ford, as the Marshal of the United States for the Southern Dis-
trict of Alabama, had levied an execution, issued from the Circuit
Court of the United States for that district, in favor of one Hall
against Harden, Marcus, and Levi Pruitt, on a certain slave, and
on the 7th January, 1839, exposed the same to sale, at public out-
cry, upon the terms, that the highest bidder should be the pur-
chaser, and should pay cash upon the delivery of the slave ; that
Lamkin became the purchaser on these terms, at the price of
$1,000. And avers an offer of the slave to the defendant, who
refused to receive and pay for him according to his promise and
undertaking.
The second sets out the execution as for 8828, damages, with
interest from the 16th of April, 1838, besides $46 costs ; avers its
levy on a slave, as the property of Levi Pruitt ; that the sale was
advertised to take place on the 7th day of January, 1839, and
that it was then offered for sale at public outcry, upon the follow-
ing terms, with others, to wit : the sale to be to the highest bid-
der, to be paid in cash, on the delivery of the said slave. It then
avers, that the defendant became the highest bidder, at the sum
JUNE TERM, 1845. 155
Lamkin v. Crawford.
of $1,000 ; that the plaintiff tendered the slave to the defendant,and
demanded that sum, which he did not, nor would pay ; whereupon
the plaintiff again exposed the slave to the highest bidder, and it
sold for $750. It then alledges a liability in the defendant, to
pay the difference between his bid and what the sale of the slave
produced on the resale, and a consequent promise to pay that
sum. The third count is similar to the second, but states the right
of re-selling at the risk of the first bidder, as one of the terms of
the first sale.
The demurrers to the several counts were overruled, and the
defendant then pleaded — 1. Non-assumpsit. 2. That the slave
sold was not the property of the defendant in execution.' The
plaintiff demurred to the last plea, and his demurrer was sus-
tained.
At the trial upon the general issue, it was shown in evidence,
that Crawford, Marshal of the United States for the Southern
District of Alabama, by one Love, his deputy, having a ji.fa. in
his hands in favor of Hall v.Pruett and others,levied on a slave, as
the property of one of the defendants in execution, and after hav-
ing advertised the slave, exposed him to sale, when, the defend-
ant being the highest bidder, became the purchaser at one
thousand dollars.
Previous to the levy and sale, the deputy marshal had demand-
ed of the plaintiff's agent a bond of indemnity, against any dam-
age in making the levy and sale ; this fact was proclaimed by
the deputy marshal before the sale. After the sale, the defend-
ant offered to pay the purchase money if the deputy marshal
would either assign to him the indemnifying bond, or make him a
warranty title to the slave. The deputy marshal refused to do
either, but offered to execute the ordinary marshal's deed, and
deliver the slave, and the defendant then refused to pay the pur-
chase money. The deputy marshal then put up the slave and
sold him on the spot, when the brother-in-law of one Streety,
who was the real plaintiff, and had the control of the execution,
purchased him at $750. Streety, the real plaintiff, was present,
and gave a receipt to his brother in law for the bid, and paid the
marshal his costs.
On this state of proof, the Court charged the jury, that the mea-
sure of the damages was the difference in money between the
first and second sale.
156 ALABAMA.
Lamkin v. Crawford.
The defendant offered to prove the real value of the slave,
which, upon an objection by the plaintiff, the Court refused to
allow.
The defendant excepted to these several matters, and they are
now assigned as error, as is also the overruling of his demurrers
to the several counts of the declaration, and the sustaining the
plaintiff's demurrer to the second plea.
Thomas Willia3is, for the plaintiff in error, made the follow-
ing points :
1. The first count of the declaration is bad, because no injury
can afise out of the facts therein alledged, to the plaintiff, as mar-
shal. If the slave remains unsold, it is the property of the defend-
ant in execution, and he may not complain of any injury.
2. The second and third counts are bad, because they assume
the liability of the defendant to pay the difference between the
sale, and the resale. If the last had produced sufficient to discharge
the plaintiff's execution debt, the marshal is not injured at all, and
if there is a surplus upon the recovery of the 8250 from the de-
fendant, this, instead of belonging either to to the maii^hal, or the
plaintiff in execution, would properly belong to the Pruitts. In-
dependent of this, the difference between the sales is not the only
measure of damages, and therefore cannot be declared for eo no-
mine. [Adams v. McMullen, 7 Porter, 74.] So, also, the de-
fendant, under certain circumstances, might be entitled to the
surplus, after satisfying the execution, as he would be if he had
purchased the slave from Pruitt, after the lien of the execution had
attached, but before the sale. [Wheeler v. Kennedy, 1 Ala. Rep.
N. S. 292,]
3. If the defendant in execution had no title to the slave, or if
it did not belong to him, the defendant ought not to be forced to
complete a purchase made in ignorance of the fact.
4. The questions upon the instructions are substantially the
same as those arising out of the pleadings, but the proof might
have shown that the slave was worth less than the price bid at
first, and the plaintiff ought not to recover more than would satis-
fy the plaintiff in execution.
Elmore, contra, insisted, that all the questions raised have
JUNE TERM, 1845. 157
Lamkin v. Crawford.
been settled by previous decisions. [Aikin v. School Comm'rs,
5 Porter, 169 ; Robinson v. Garth, 6 Ala. Rep, 204.]
GOLDTHWAITE, J.— 1. The general question as to the
right of a sheriff to maintain an action against a purchaser refus-
ing to comply with the contract of sale, arising out of his bid, at
sheriff's sale, was settled in Robinson v. Garth, 6 Ala. Rep. 204;
but in that case there was no objection taken to the mode of de-
claring. The objection to the first count of this declaration, as
insisted here, is, that if the slave remains unsold, in the marshal's
hands, no injury has been sustained by any one, as it cannot be
known but more money will be produced by a resale. This may
be answered by a reference to the peculiar liabilities which the
law imposes on this officer, if, omitting to re-sell, and confiding in
the expectation that the purchaser will pay, he returns, that by
the sale of the slave, he has made the money which was bid. By
this, he would become personally responsible to the extent of the
sale returned, and his right to recover the full price, we think,
cannot be controverted, if the ability to deliver the slave contin-
ues at the time of the.trial ; or if it has been placed at the dispo-
sal of the bidder, by a proper tender. The seller of goods which
are not in themselves perishable, has the right, either to rc-sell,
and look to the former purchaser for damages, upon his contract,
or he may make a tender and keep it good, and recover the whole
original price. Such was the decision in Bement v. Smith, 15
Wend. 493. It is obvious however, that no recovery to that ex-
tent could be had, when the seller had, subsequently to the ten-
der, appropriated the goods to his own use, or again sold them.
In general, the true rule by which to ascertain the damages re-
sulting to the seller, from the refusal of the purchaser to go on with
the sale, will be the loss actually sustained. [Gerard v. Taggart,
5 ^. & R. 19 ; Mussen v. Price, 4 East, 147.] We think these
reasons are conclusive to show, that there is no valid objection to
the mode pursued in the first count.
2. The second and third counts assume, that the defendant is
liable for the precise difference between the sum bid at the first
sale, and that produced at the last ; and the only difference be-
tween them is, that in the one the legal liability is supposed to
grow out of the fact of purchasing at such a sale, and in the other,
that it was one of the conditions of the sale. In the School Com-
158 ALABAMA.
Larakin v. Crawford.
missioners v. Aikin, 5 Porter, 169, the declaration was the same
as the second count here, and would have been sustained, but for
the fact, that the plaintiffhad no authority to dispose of the school
lands under a minimum price; and consequently no implication
could arise of a right to re-sell, unless that price could be obtain-
ed. We put the decision upon the demurrer there, expressly on
these grounds, and say, if upon the second sale, the lands had
brought the minimum price, the declaration would have been
good. That, it will be seen, was an official sale, and we think
the same consequences grow out of every sale of this kind, and
thatthereis always animplied contract to pay the difference, which
is ascertained between the bid, and the subsequent sale. This is
peculiarly the case with sheriffs' sales, because the officer is bound
to make the money at his peril, and the only means which the
law gives him, is by a re-sale.
3. In the case of sales which are not made by official per-
sons, this rule has no application, because the sale is not a forced
one, and to let in the recovery of the difference of price, it must
appear that the subsequent sale was made under such circumstan-
ces, as will indicate that a fair price has be^n obtained. This is
the effect of our decision in Adams v. McMillan, 7 Porter, 74.
"We there say, where the right to re-sell lands, for a failure to
comply with the contract is one of the conditions, the difference
between the two sales is the measure of damages agreed on by
the parties, and is in the nature of stipulated damages ; but if no
such condition is entered into, as one of the terms of sale, the
vendor, upon a breach of the contract, would certainly be enti-
tled to recover such damages as he had sustained by its violation;
and the difference between the first and second sale would be a
good criterion of the damages sustained by the vendor ; not, how-
ever, as binding on the jury, but as fit testimony to be received
by them, as a means of coming to a correct conclusion. As a
general rule, therefore, we think it is implied as a condition in all
sheriffs' sales, that the officer may re-sell, if the contract of sale
is not complied with by the purchaser, and that the difference is
generally recoverable, as in the nature of liquidated damages.
4. We say generally recoverable, because there is one condi-
tion of the property, which may exist, in w^hich the purchaser
would clearly only be liable to the extent of the money to be col-
lected by the sheriff, and perhaps also such damages as he might
JUNE TERM, 1845. 159
The State v, HalletL
be amenable for, from a failure to return the money. This condi-
tion is, where the purchaser is in reality the owner of the proper-
ty sold, as the defendant in execution, or from having purchased
it from the defendant in execution, after the lien of the judgment
or execution had attached. In such a condition of things, the
surplus arising from the sale, would clearly belong to the purcha-
ser. [Wheeler v. Kennedy, 1 Ala. Rep. N. S. 292.] But this
is considered by us, merely an exception to the general rule,
which does not require a change in the form of pleading.
5. The demurrer to the second plea, we think, was properly
sustained, as the plea presents no ground of defence to the action.
The rule certainly is, that the sheriff is not understood as guaran-
teeing the property of the defendant in the thing sold. That is
a matter to be ascertained by the purchaser previous to bidding,
and cannot be urged against an action for the price. Whether,
upon a proper application, the Court from which the execution is-
ued, might not have the power to relieve a purchaser, under pecu-
liar circumstances, is not the question here, and calls for no ex-
pression of opinion.
Having now examined all the points raised in argument, we
have only to announce the conclusion, that the judgment must be
affirmed.
THE STATE v. HALLETT.
1. An intention to change the domicil, without an actual removal, with the
intention of remaining, does not cause a loss of the domicil.
2. Where one resident in Georgia, came to this State, for the purpose of set-
tling here, and leased land and purchased materials for the erection of a
foundry, and returned to Georgia for his family, and after some detention
returned with his family, and has ever since resided in this State — Held,
that he did not lose his domicil in Georgia, or acquire one in this State,
until his actual removal to this State, with the intention of remaining.
Novel and difficult questions from the Circuit Court of Talla-
dega.
160 ALABAMA.
The State v. Hallett.
The defendant was indicted, found guilty, and fined, for voting
in the last Presidential election, without being legally qualified to
vote.
From a bill of exceptions, it appears, that the defendant was a
citizenof Georgia, up to September, 1843 — that about that time,
being in this State, he declared his intention to settle in Talladega
county, if he could procure a site for an iron foundry, from one
•Robert Jemison. That between the 1st and 15th of September,
he leased fi'om Jemison a place in Talladega county, for this pur-
pose, for five years, which took effect from its date. That soon
after the lease was made, he employed Jemison to get lumber, for
the foundry, and left for the purpose of bringing his family to Tal-
ladega. That he was delayed from some cause, in getting back
with his family, and did not reach Talladega until the 26th No-
vember, 1843 ;and on his return explained to Jemison the cause
of his delay. He established his foundry; and has ever since re-
sided in Talladega county,and on the 1 1th November, 1844, voted
at the Presidential election. It further appeared, that on the day
of the election, and before he voted, he took the advice of a
lawyer, as to his right te vote, who told him that he had a right to
vote.
Upon this evidence, the Court was of opinion, that he was le-
gally guilty, as charged in the indictment, which is now certified
as novel and difficult.
S. F. Rice and Bovvden, for defendant. The quoanimo is the
real subject of inquiry. An implied residence is sufficient, if the
intention is clearly made out. [1 Kent's Com. 77 ; 8 Cranch,
253.] When the defendant leased the foundry, if his intention
was to become a resident of this State, he became so in fact, al-
though his family were in Georgia : nor did he lose his citizenship
by going to Georgia for them, because he had iheanimus rever-
tendi. The residence of the husband, or father, is not lost by the
failure or omission of the rest of the family to join him. The jury
were judges, both of the law.and fact.
Attorney General, contra. Two things must concur, to
constitute domicil, to wit: actual residence and the intention of
making it the home of the party. The animo et facto must con-
cur. [Story's Con. of L. 42, §44; 3 Ves. 198; 5 id. 750; 10
JUNE TERM, 1845. 161
The State v. Hallett.
Pick. 77; 5 id. 370; 2 B. & P. 228; 11 Mass. 423; 4 Cow.
note, 516.]
A mere intention to acqnire a new domicil, without the fact of
removal, avails nothing ; nor is an original domicil lost, until the
new one is acquired, «?iimo et facto. The residence of the fam-
ly, is the domicil, although the head of it may have another place
of business. But in this case, it does not appear, that Hallett
expected, or intended to be in Alabama, by the 11th November,
1843.
ORMOND, J. — The question presented upon the record, has
always been considered one of great moment, and has given rise
to much discussion, and ingenious, subtle, reasoning, both in the
civil and common law. It appears, however, to be well settled,
that when a domicil has been acquired, it is not lost, until a new
one is actually gained, facto et animo. The mere intention to
change the domicil, without an actual removal, with the intention
of remaining, does not cause a loss of the domicil.
Here the facts were, that the defendant, being domiciled in
Georgia, came to this State, with the design of settling here, and
manifested his intention of making this State his permanent resi-
dence, by leasing a piece of land, procuring materials for the erec-
tion of a foundry, and going to Georgia to bring his family. These
acts all mark, unequivocally, his intention to change his residence,
from Georgia to this State. These facts, however, are not suf-
ficient to cause a loss of the domicil he previously had. If, on
his return to Georgia, he had died before being able to carry his
purpose into effect, it can admit of no doubt, the Courts of
Georgia, and not of this State, would have been entitled to dis-
tribute his estate. The same rule must have prevailed, if he had
died upon the journey here, because until he had actually reach-
ed here, there would have been no change in fact, of the domicil.
In one case indeed, the intention to remove, has the effect to
change the domicil — where one, by residence, has acquired a
domicin different from that of his birth, and with intention to re-
sume his former domicil, sets out on his return. In that case, it
has been held, that the domicil, is re-acquired, frgm the time he
manifests such intention. [The Venus, 8 Cranch, 253.] This
proceeds from the fact, that the acquired domicil, was adventitious,
and may therefore be thrown off at pleasure. Sec also, the ca-
21
1G2 ALABAMA.
The State v. Hallett
ses of Jennison v. Hopgood, 10 Pick. 77 ; Bruce v. Bruce, 2 B.
and P. 228 ; and Williams v. Whiting, 11 Mass. 423. This last
case is expressly in point, and does not vary in any essential par-
ticular from this. There, as here, an intention was manifested to
change the residence of the party, but until it was consummated
by an actual removal, the Court held, the former domicil was not
lost.
The charge of the Court, therefore, upon the facts was strictly
correct, and its judgment must be affirmed.
GOLDTHWAITE, J., dissenting.— I am not disposed to
question the correctness of the principles upon which the decis-
ion of the Court is founded ; but I think they are mistakenly ap-
plied to the case before us. The peculiar condition of all new
countries is such, that the factum of domicil, or residence, is es-
sentially diffei'ent from what it is in an older country, or a city.
The domus, in the first instance, is either a tree top or a mere
hovel, and the hammer of the artizan and the axe of the wood-
man must, in most cases, precede the removal of the family of the
settler. His duties as a citizen commence with his first prepara-
tory act of settlement, and after ten days actual residence, he
may be compelled to defend the home which he is preparing. If
the duties of citizenship are thus imposed on him, I can see no
reason why his privileges should not date from the same period, if
they became perfect by a continuation of residence for the re-
quired time.
I think it should have been put to the jury to determine from the
evidence before them, whether the acts done by Mr. Hallett,
with relation to his foundry, were performed with the intention to
make a permanent residence amongst us, and if they so found
them, that his residence commenced with the first act, indepen-
dent of the then domicil of his family.
JUNE TERM, 1845. 163
Lowrie v. Stewart.
LOWRIE vs. STEWART.
1. Where the plaintiiFdeclares in tlie common counts in assumpsit, a plea of
the statute of limitations of three years is bad, unless it aver thatthe cause
of action is an open account.
2. B. was indebted to S., (his ftitlier-in-law,) or S. was bound to advance mo-
ney for him, B. sold to L. a house and lot, and took his note payable to S.
for the purchase money; B. had been a partner of F. in a mercantile es-
tablishment. Upon the dissolution of their partnership, the firm were in-
debted to B. more than $1,000, which he was to retain, and appropriate the
residue of the effects to the payment of tlie joint debts ; some of the de-
mands due B. and F. were placed by the former in the hands of S. as a jus-
tice of the peace to collect, who acknowledged their receipt from, or his
accountability to S : Held, that the inducement for taking the note and re-
ceipt in S.'s name was sufficient to free the transaction from the imputation
of fraud ; tliat a debtor may prefer one creditor to another, and the relation-
ship between B. & S. could not prevent tlie latter from securing himself;
further, that by making tlie note payable to S., L. admitted that he was en-
titled to tlie money, and cannot be heard to alledge the reverse.
3. Where a justice of the peace receives money in his official capacity, he
cannot detain it in satisfaction of a debt due him, in his private capacity, or
when sned for its recovery, plead a set ofi" against it.
Writ of error to the Circuit Court of Talladega.
The defendant in error declared against the plaintiffin assump-
sit. 1. On a promissory note, dated the third of November, 1838,
lor the payment of two hundred and eighty-seven dollars, twelve
months after date. 2. For money had and received. 3. For
goods, wares and merchandize, sold and delivered. 4. For mo-
ney lent and advanced. To each of these counts there was a
demurrer, which being overruled,the defendant below pleaded — 1.
Non assumpsit. 2. A set off. 3. Want of consideration. 4. Fail-
ure of consideration. 5. Statute of frauds, allcdging that the
cause of action in each count, except the first, is an open account;
and, 6. To all of the declaration, except the first count, defend-
ant plead's the statute of limitations of three years. On motion
of the plaintiff, the fifth plea was stricken out, issue was joined on
the others, and the cause was submitted to a jury, who returned a
164 ALABAMA.
Lowrie v. Stewart.
verdict for the plaintiff, for the sum of 8547 87 damages: and
judgment was rendered accordingly.
From a bill of exceptions it appears that the plaintiff had been
a partner in a mercantile firm with one Brasher, his son-in-law ;
upon a dissolution of their partnership, Brasher received the ef-
fects of the concern and undertook to pay the debts. Afterwards
Brasher formed a similar partnership with one Favour. This
latter firm being also dissolved, Brasher received its effects and
stipulated with his partner that he (Brasher,) would retain one
thousand and seventy-six dollars, the amount of his individual ac-
count against the concern, and appropriate the residue, amount-
ing to some thousand dollars, to the payment of the partnership
creditors. The defendant received for collection as a justice of
the peace some of the claims due Favour & Brasher ; for so much
as he had collected and failed to account for, this action was in-
tended, among other things, to recover.
There was evidence tending to show, that Brasher's object, in
taking the receipt of the defendant, in the plaintiff's name, was to
indemnify the latter from loss, in consequence of the failure of
the former to pay off the debts of Stewart & Brasher.
During the partnership of Favour & Brasher, they owned a
house, of which, upon the dissolution. Brasher became the sole
proprietor, by the purchase of Favour's interest. This house
and lot was afterwards sold by Brasher to the defendant, who, in
part payment, took the note described in the first count of the de-
claration, payable to the plaintiff.
On the 25tli of January, 1838, Favour & Brasher, made a note
for the payment of four hundred dollars, to one HoUoway, on
which there was an indorsement to the defendant, dated the 21st
August, 1838. The signature of the indorser was proved, the
date was not otherwise shown, but it was proved that the defend-
ant had the note in his possession previous to the 22d day of No-
vember, 1843, more than one year before this suit was com-
menced.
The bill of exceptions, after reciting with great particularity,
the facts above condensed, proceeds thus : " The questions were,
1. Whether the note of Favour & Brasher to Holloway, indors-
ed to Lowrie as above, could be set off against the note declared
on ; and, 2. Whether it could be set off against the claim for col-
lected monies. The Court charged the jury that the giving of the
JUNE TERM, 1845. 1G5
Lowrie v. Stewart.
note by Lowrie to Stewart, estopped him, under the circumstan-
ces, from asserting that it belonged to Favour & Brasher, so as
to justify a set off against them ; and that the giving of the receipt
to Stewart, although for effects of Favour & Brasher, or which
had belonged to them, had the same effect, and thereupon ex-
cluded the note from the jury." Thereupon the defendant ex-
cepted, &c. It appears from the judgment entry, that the sixth
plea was stricken out by the Court.
S. F. Rice, for the plaintiff in error, contended — 1. That the
sixth plea was good, and consequently should not have been
stricken out. [1 Ala. Rep. 124; 6 id. 509.] 2. If the transfer
of the claims due Favour & Brasher was merely colorable, or
fraudulent, as is shown by the evidence recited in the bill of ex-
ceptions, then the defendant below should have been allowed to
set off the note acquired from Holloway. 3. Neither the under-
taking to pay the plaintiff the sum expressed in the note declared
on, or giving him a receipt for the claims placed in the defendant's
hands by Brasher, estopped the defendant from insisting that the
transaction was fraudulent as between the plaintiff and Brasher ;
or prevent him from relying on the set off. 4. The three last
counts in the declaration are imperfect, and to them at least the
demurrers should have been sustained.
E. W. Peck & Clark, for the defendants in error, insisted, that
the declaration was good. The sixth plea was not an answer to
the declaration ; for the common counts are not necessarily found-
ed upon open accounts, and not alledged to be so. The striking
out of the plea is only shown by the judgment entry, and not by
the bill of exceptions — will it be considered by this Court? 2.
The note of Holloway was not good as a set off. It does not ap-
pear that the defendant acquired it, until after he made the note to
the plaintiff; but if he had it previously, he was estopped from
setting it up, by consenting to become the plaintiff's debtor, in-
stead of becoming liable to Brasher. In respect to the sum of
$1,076 dollars, which Favour and Brasher owed Brasher, cer-
tainly the latter had the right to use that sum as he pleased. He
transferred effects of the firm to that extent to Stewart, and that
it might be realized, he placed some of the claims in the defendant's
hands for collection. Thus far there is no right of set off. Again ;
166 ALABAMA.
Lowrie v. Stewart.
the defendant could not retain money collected by him, as a jus-
tice of the peace, in satisfaction of his own private demand.
COLLIER, C. J.— In Winston v.The Trustees of the Univer-
sity, 1 Ala. Rep. 124, it vv^as determined that in an action of as-
sumpsit on the common counts, a plea of the statute of limita-
tions of three years, which does not aver that the plaintiff's cause
of action is an open account, is bad on demurrer. If the plea
was no answer to the declaration, the defendant has not been pre-
judiced by the striking it out, and cannot complain that the plain-
tiff did not demur.
The three counts which were demurred to, are certainly not
so verbose as those furnished by most of the writers upon plead-
ing, yet it is believed that each of them states with clearness the
facts which constitute a good cause of action ; and that the liabil-
ity deduced from them is a proper deduction.
It Wfis clearly competent for Brasher to transfer his individual
property to Stewart, who had perhaps made advances for him,
or if he had not, was bound to pay money for him. The ar-
rangement between Brasher, the plaintiff and defendant, was, in
effect, a transfer of a portion of the purchase money, to be paid for
the house which the former sold to the latter. The validity of
this transaction, we think, cannot be impngned by showing that
Brasher also transferred the effects of Favour & Brasher to the
plaintiff, and that he preferred him to other creditors, because he
was his father-in-law. A debtor may prefer one creditor to an-
other, if liens already attaching are not thereby defeated or im-
paired. A relationship by consanguinity, or affinity, cannot pre-
vent the creditor from securing himself
It is not necessary to an estoppel that there should be a deed,
but it may be by matter in pais. By making the note paya-
ble to the plaintiff instead of Brasher, the defendant admitted his
liability to the payee, and that he was entitled to the money, and
cannot now be permitted to alledge otherwise. Such a defence
might be prejudicial to the plaintiff, who, in consequence of the
defendant's promise, must have pretermitted other means to se-
cure himself j07'o tanto.
In Prewitt v. Marsh, 1 Stewart & P. Rep. 17, the defendant
being sued for the recovery of money received by him as a jus-
tice of the peace, attempted to set off money due him from the
JUNE TERM, 1845. 167
Massey v. Walker.
beneficial plaintiff in the action. This Court said, « that a justice
of the peace who receives money in his official capacity, can-
not lawfully detain it in satisfaction of a debt due him in his pri-
vate capacity ; and that it cannot be the subject of payment or
set off," &c. Here is a case directly in point, and fully sustains
the decision of the Circuit Judge. See also Crockford v. Winter,
1 Camp. Rep. 124.
It results from the view taken, that the judgment of the Circuit
Court is affirmed.
MASSEY V. WALKER.
1. The refusal to quash an attachment, is a matter which caimot be re-exam-
ined on error.
2. A plea seeking to abate an ancillary attachment, on the ground that the
defendant had been previously arrested and held to bail, is bad on de-
murrer.
3. A replication to a plea in abatement, asserting that the arrest of the defend
ant and pendency of the suit spoken of in the plea, are part of the pro-
ceedings in the same suit, as pleaded to, should conclude to the Court, as it
is triable by the record.
4. In practice, no formal judgment of respondeas ouster is entered upon the
sustaining a demurrer to a plea in abatement. The sustaining of the de-
murrer is entered on the record, and if the defendant wishes to plead over,
he is permitted to do it.
5. An ancillary attachment may be sued out, although the party has been pre-
viously arrested on bail process issued in the same cause.
Writ of Error to the Circuit Court of St. Clair.
Walker on the 30th June 1842, sued out a writ in assumpsit
against Massey, returnable to the then next September term. Bail
having been required, the defendant was arrested, and entered
into the usual bail bond, with surety. Afterwards, on the 17th
188 ALABAIMA.
Massey v. Walker.
July of the same year, the plaintiff sued out an ancillary attach-
ment, which is returned levied.
At the return term, the defendant moved to quash the attach-
ment, which motion was refused.
He then pleaded in abatement of the attachment — 1. Because
the bail writ before sued out had been executed on the defendant.
In this plea the attachment is said to be the leading process in the
suit 2. A similar plea, showing the arrest of the defendant un-
der the bail writ, and leaving out the assertion that the attach-
ment is the leading process in the suit. Both pleas pray judg-
ment of the attachment that it may be quashed.
The plaintiff replied to the first plea, that there was no record of
any such attachment, forming the leading process in the suit, and
avers that the attachment sued out is ancillary to the suit com-
menced by the bailable process, and that both writs formed one
suit. To the second plea he demurred. The defendant took
issue " in short," to the plaintiff's replication to the first plea.
The judgment only recites that the demurrer to the second
plea was sustained ; the issue formed on the first plea in the count
was found for the plaintiff, and the defendant saying nothing fur-
ther in bar, or preclusion of the plaintiff's demand, it was consid-
ered, &c., rendering a final judgment.
The defendant now assigns, that the Circuit Court erred —
1. In overruling the motion to quash the attachment.
2. In sustaining the demurrer to the second plea.
3. In deciding the issue formed on the first plea in favor of the
plaintiff.
4. In not awarding a judgment of respowf/eas oMsier after sus-
taining the demurrer.
5. In rendering judgment final upon the state of facts shown
by the record.
6. In rendering final judgment, without having first awarded a
judgment of respondeas ouster.
7. In trying the issue joined, and in not submitting it to a
jury-
Rice, for the plaintiff in error, made the following points :
1. The estate of a debtor cannot be attached, on mesne pro-
cess after his body has been arrested in the same suit. [Daniels
V. Wilcox, 2 Root, 346 ; Brinly v. Allen, 3 Mass. 561.
JUNE TERM, 1845. 169
Massey v. Walker.
2. The issue growing out of the second plea should have been
submitted to a jury.
3. A judgment of respondeas ouster is the only proper one
which can be given on the plaintiff's demurrer to a plea in abate-
ment. [1 Lord Raymond, 338, 550; 16 John. 307; Cora. Dig.
142 ; Burntham v. Webster, 5 Mass. 266.]
F. W. BowDON, contra, argued —
1. The refusal to quash is not reviseable on error, (Reynolds
v. Bell, 3 Ala. Rep. 57,) but the attachment is regular. [Houn-
shell V. Phares, 1 Ala. Rep. N. S. 580.]
2. The issue was properly nul tiel record, and therefore to be
tried by the Court. [Gaston v. Parsons, 8 Porter, 469.] And
the record shows that the defendant declined to plead over.
[McCutchen v. McCutchen, 8 Porter, 151 ; Chilton and Bowdon
V. Harbin, 6 Ala. Rep. 171.]
4. The bail writ does not preclude the suing out of the an-
cillary attachment. A parallel case exists under the statute,
which gives a ca. sa. andj^. fa. at the same time. [Cary v.
Gregg, 3 Stewart, 433,]
GOLDTHWAITE, J.— All the questions made in this case,
may be briefly disposed of.
1. As to the refusal to quash the attachment, that is not a mat-
ter which is proper to be examined on error. At best, this is a
motion which the Court may entertain, but cannot be controlled
to do so. [Reynolds v. Bell, 3 Ala. Rep. 57.]
2. Our statutes which authorize attachments as ancillary to
causes already depending, make no distinction between suits
commenced by bailable process, and suits commenced in the or-
dinary mode. In either class, we consider the attachment pro-
per, if the statutory course for suing it out is shown. This con-
clusion is decisive of any supposed merit in the second plea in
abatement, to which the demurrer was properly sustained.
3. In relation to the issue growing out of the other plea, it is
entirely immaterial what it was, or whether formed, to the Court
or jury, as in either case it would have availed the defendant no-
thing. But in point of form the proper issue was nul tiel record^
and although we do not know what was shown to the Court, as
22
170 ALABAMA.
MajBBey v. Walker.
evidence, we would presume error in a case where the matter
was material, that the evidence supported the plea.
4. The proper judgment upon a demurrer to a plea in abate-
ment, when the demurrer is sustained, is one o{ respondeas ouster,
but in point of practice with us, no formal judgment is. in general
entered ; the mode generally is, to notice the sustaining of the de-
murrer, upon the judgment entry, as in this case. If the defend-
ant wishes to plead over, he does so ; if otherwise, there is no in-
jury done. Here no formal judgment is rendered on the demur-
rer ; the final judgment in this cause is only rendered upon the
failure to plead further.
We can see no error in the record. Judgment affirmed.
Afterwards, at another day in Court, a mandamus was moved
for, on behalf of Massey, to direct the Circuit Court to set aside
the ancillary attachment in this case, on the ground that at the
time of its issuance and levy, the defendant was in custody under
the bail writ. An affidavit was submitted, showing that Massey
had never been discharged legally from the arrest, and the record
of the case showed, that the motion to quash the attachment had
been made and refused in the Circuit Court.
Rice, for the motion, cited, Daniels v. Wilcox, 2 Root, 346 ;
Bradley V. Allen, 3 Mass. 561 ; 3 Ala. Rep. 57, 250, 363; 4 ib.
393, 687.
GOLDTHWAITE, J.— The statute under which the attach-
ment in this case was sued out, provides, that whenever a suit
shall be commenced in any Circuit or County Court of this State,
and the defendants, or any one or more of them, shall abscond, or
secrete him, her, or themselves,or shall remove out of this State,
or be about to remove out of this State, or shall be about to re-
move his, her or their property out of this StatO;. or be about to
dispose of his,heror their properly fraudulently with intent to avoid
the payment of the debt or demand sued for ; and oath being
made, &c., an attachment may issue, and when returned, the
same shall constitute a part of the papers in the original suit,
which may proceed to judgment as in other cases, [Clay's Dig.
62, § 35.]
The object of this enactment was to give the process of at-
tachment, when any one of the enumerated causes for its issu-
JUNE TERM, 1845. 171
Graham v. Ruff.
ance might exist ; and we can see notiiing in it which limits its
provisions to cases where the defendant has not been held to bail.
We have held, it is true, that an ancillary attachment can not be
sued out in an action of detinue, because no original attachment
can be issued for such a cause of action. [Le Baron v. James, 4
Ala. Rep. 687.] But here the cause of action is such as would
support an original attachment, being a liquidated debt ; and
therefore the ancillary one is proper, unless the previous arrest on
the bailable process prevents it. In our opinion, this does not,
The arrest on bailable process, has only a very remote analogy
to the final process by ca. sa., where the reason for the discharge
from arrest, if a sufficient levy is made, is, that there is a quasi
satisfaction by the levy ; but, even in that case, we presume, a
Court would require very satisfactory proof, that the levy would
be productive, before it would allow the defendant to be discharg-
ed. When the process, however, is under this statute, we think
there is no pretence to discharge the levy of the attachment, what-
ever the proceedings might be affecting the person of the debtor.
Motion refused.
GRAHAM V. RUFF.
1. An allegation in an affidavit, made to obtain an attachment, that the per-
son against whom the process is sought, " is a non-resident," is sufficiently
certain.
Error to the Circuit Court of Montgomery.
This was an action commenced by the plaintiff in error, by
attachment. The cause assigned for the suing out the attach-
ment, in the affidavit, is, that the defendant is a " non-resident."
For this cause the attachment was quashed by the Circuit Court.
From this judgment this writ is prosecuted.
172 ALABAMA.
Graham v. Ruff.
Williams, for plaintiff in error, argued, that the Court should
not have quashed the attachment, but should have put the party
to his plea in abatement. [6 Ala. Rep. 154.]
Pryor, contra— Where the want of jurisdiction appears upon
the proceedings, the Court may quash. He cited, 1 Sumner,
578 ; 6 Wheat. 450 ; 1 id. 92; 3 Ball. 382; 4 id. 12, 22 ; 8 Pet. 148
ORMOND, J.— The case of Wafer v. Pope, 6 Ala. Rep.
154, merely determines, that the want of an affidavit, or bond,
cannot be assigned for error, in this Court, if the objection has
not been taken in the Court below. The mode pointed out by
the statute, of taking the objection, is by plea in abatement, and
therefore a writ of error would not lie, for a refusal to quash.
But if the Court thinks proper to act in this summary way, and
repudiates the causefor want of jurisdiction, it cannot be assign-
ed as error in this Court, if the cause was sufficient, as in that
event the defendant has sustained no injury. We proceed there-
fore to consider, whether the cause assigned authorized the ac-
tion of the Court.
One of the causes for which an attachment may issue, is, that
«he or she resides out of this State.'' The cause assigned in the
affidavit, is, that the defendant " is a non-resident." As the Le-
gislature has declared, that « the attachment law of this State,
shall not be rigidly and strictly construed," it becomes necessary
to inquire, whether the language employed in the affidavit is of
equivalent import, with the statutory requisition.
It is urged, that the term " non-resident," is equivocal, and may
mean, that the person of whom it is affirmed, does not reside in a
particular county, in the State of Alabama, or in the United
States, and is therefore insufficient from its uncertainty. To as-
certain the meaning, we must look at the context, and the pur-
pose for which the allegation was made. The terms used, are
found in an affidavit made to obtain an attachment, according to the
law of the State, and as a non-residence in any particular coun-
ty in the State, is not sufficient for that purpose, it is reasonably
certain, that the plaintiff intended to swear, that the defendant did
not reside within the State ; and if, by fair and just interpretation,
this must be understood to be its meaning, it is sufficient. To
hold otherwise, would be to say, that it must be so certain as to
JUNE TERM, 1845. 173
Hargroves v. Cloud.
exclude every other conclusion, which would be a manifest vio-
lation of the statute.
If the defendant resides within this State, the plaintiff could not
escape the force of this reasoning, but would be clearly guilty of
perjury. It results from this, that the Court erred in quashing
the attachment for this cause, and its judgment is therefore re-
versed, and the cause remanded.
HARGROVES v. CLOUD.
1. The possession of property by a bankrupt, at the time of his discharge, or
immediately after, which by industry he might reasonably have acquired,
does not warrant the presumption that he did not make a full surrender of
his estate ; but if the value of the property is so great as to make it impro-
bable that it was earned since the filing of the petition in bankruptcy, it
devolves upon the bankrupt to show how he became the proprietor of such
property, when his discharge is impugned for fraudulent or wilful conceal-
ment
2. Where it appears that the defendant and alaintiff pleaded and replied " in
short by consent," it will be intended that the plea and replication contain
every material allegation that the law requires, to make them complete ;
but if the pleading could not be supported, if drawn out in form, a de-
murrer should be sustained, if so interposed as to reach the defect
Writ of Error to the Circuit Court of Russell.
The defendant in error suggested to the County Court of Rus-
sell, that on the 12th December, 1840, he became the surety of
the plaintiff in a promissory note for the payment of $250, to Da-
vid Golightly; that at the August term of that Court, holden in
1842, Wm. S' Chipley, as the administrator of the payee, recov-
ered a judgment on the note against the plaintiff below, for the
sum of $263 87. On the 5th of December, 1843, the plaintiff
paid off and satisfied the judgment thus recovered ; and thereupon
174 ALABAMA.
Hargroves v. Cloud.
he moved the Court for judgment against the defendant below*
for the amount thus paid by him, with interest, &c.
The defendant appeared and pleaded — 1st. That he was a
certificated bankrupt. 2d. Payment. To the first plea, the
plaintifT replied, that he had obtained his certificate fraudulently;
to which defendant demurred, and his demurrer being overruled,
issue was joined on both pleas. Thereupon the cause was sub-
mitted to a jury, who returned a verdict for the plaintifT, and judg-
ment was rendered accordingly.
From a bill of exceptions, sealed at the instance of the de-
fendant, it appears that the plaintiff offered to prove, that the de-
fendant had some negroes in his possession after filing his petition,
and after the decree of bankruptcy ; to the admission of this evi-
dence the defendant objected, but his objection was overruled,
and the evidence was permitted to go to the jury. The defend-
ant then prayed the Court to charge the jury, that they should
not regard any evidence tending to show that the defendant did
not render a complete schedule of the property in his possession
at the time of filing his petition. Further, that the possession of
property by the defendant, after obtaining a decree in bankrupt-
cy, is not admissible evidence to prove fraud in obtaining his cer-
tificate. Which charges the Court refused, and charged the jury,
that property in defendant's possession, immediately after obtain-
ing the decree, unless explained, was a circumstance which they
ought to take into the consideration as evidence of fraud. The
cause was removed to the Circuit Court, and the judgment of the
County Court there affirmed.
G. W. Brown, for the plaintifTin error, insisted, that the Court
below erred in the several points presented by the bill of excep-
tions. That although it appears from the record to have been
agreed that the plaintiff might reply " in shorf to the first plea,
yet this consent did not relieve the pleader from setting out spe-
cially, in what the fraud consisted ; and for its generality the re-
plication was defective. [3 Ala. Rep. 316 ; 5 Id. 451-]
S. Heydenfeldt, for the defendent in error. The replication
is entirely sufficient. The bankrupt act of 1841, provides that
the plea of bankruptcy may be met by proof, that the certificate
was obtained by fraud — the plaintifffirst giving a written notice
JUNE TERM, 1845. 175
Hargroves v. Cloud.
to the defendant of the grounds reUed upon. If the notice is spe-
cial, as the law requires, where is the necessity of disclosing the
facts in the plea, which tend to establish the fraud ? The record
does not set out the notice, or even al ledge that it was given, and
it could not with propriety be sent up, unless it was incorporated
by bill of exceptions ; but it must be presumed that it conformed to
the law.
COLLIER, C. J. — A discharge and certificate duly granted
to a bankrupt, under the act of Congress of 1841, for the establish-
ment of a uniform system of bankruptcy, shall, in all courts of
justice, be deemed a full and complete discharge of all debts,
contracts and other engagements of such bankrupt, which
are proveable under the act, and shall be and may be
pleaded as a full and complete bar to all suits brought in any
court ot judicature whatever, and the same shall be conclusive
evidence of itself in favor of such bankrupt, unless the same shall
be impeached for some fraud or wilful concealment, by him, of
his property, or rights of property, contrary to the provisions of
this act, on reasonable notice specifying in writing such fraud or
concealment." (See § 4.) The fraud and concealment of pro-
perty by a bankrupt, it is held, must be deliberate and intentional
to affect him ; but it is said, where property is discovered belong-
ing to the bankrupt's estate, subsequent to the issuing of the de-
cree, whi'^h had not been accounted for ; the intention of the bank-
rupt being apparent, his discharge and certificate will be disallow-
ed. , [Owen on Bank. 222-3.] What facts will establish fraud
or wilful concealment, so as to annul a certificate already allowed
must depend more or less upon the circumstances of every par-
ticular case. The possession of property by a bankrupt at the
time of his discharge, or immediately after, which by industry be
might reasonably have acquired, would not warrant the presump-
tion that he did not make a full surrender of his estate. But
where the value of it is so great as to make it improbable that it
was earned by him since the filing of his petition, it devolves up-
on him to show how he became the proprietor of such property:
whether by inheritance, bequest or purchase. This much the
bankrupt owes to his creditors as well as himself; and the onus
of relieving himself from the imputation of fraud, is, in such case,
176 ALABAMA.
Hargroves v. Cloud.
cast upon him, who is best acquainted with the origin and na-
ture of his title, and if fair may easily sustain it.
In the present case, the property in the possession of the bank-
rupt, was slaves. These, we know, are of too great value to be
acquired in a very short time as the earnings of industry, and if
they were purchased on credit, obtained by gift, &c., the fact
should be proved. It is not shown by the bill of exceptions how
long the case of the bankrupt was pending ; if for a long time,
the presumption of fraud would be weakened. But as all intend-
ments are favorable to the decision of a primary Court, it would
be presumed, if necessary, that the suit progressed regularly to a
hearing, without a continuance ; especially as the party excepting
has not shown by the record, that the reverse is true.
Without stopping to inquire whether the act, in requiring a no-
tice in writing, to the bankrupt, specifying the fraud or conceal-
ment, has any influence upon the form of the pleadings,we are satisfi-
ed that the replication in this case is good. It is explicitly stated
in the record, that both the defendant and plaintiff pleaded and
replied " in short by consent." This being the case, we have
repeatedly held, that it must be intended that the plea and repli-
cation contain every material allegation which the law requires,
to make them complete; and that an objection which supposes
the reverse, cannot be entertained. If the pleadings could, un-
der no circumstances, be supported, of course a demurrer would
be sustained, if so interposed as to reach the defect. But the
objection which is made to the replication, applies with all force
to the plea, and that being prior in order, would be adjudged bad,
if the demurrer could be entertained.
This view disposes of the case ; the judgment is affirmed.
JUNE TERM, 1845. 177
Watson and Wife v. May.
WATSON AND WIFE v. MAY.
1. The statute which gives a writ of error or appeal from all judgments, or
final orders of the Orphans' Court, does not take in cases in which neither
writ of error or appeal could be taken, by the course of practice in the
Courts of the civil or common law.
3. It is not necessary to the validity of proceedings by administrators before
the Orphans' Court, that parties should there be made except in cases pro-
vided by the statute. Even where the estate is ready for distribution, a
general citation to parties having an adverse interest was necessary, prior
to the last act,
3. Persons having an adverse interest, are not concluded by an erroneous
decree, but they cannot, without further proceedings, forthwith sue out a
writ of error.
4. The personal representative is entitled to examine and litigate the title
of any one who claims an interest in the final distribution of the estate.
5. When the proceedings by an executor or administrator have been in con-
formity to the rules prescribed for his action, there can be no review of
the facts upon which the judgment of the Court is founded, although per-
sons having an adverse interest were not apprised of the final settlement
intended by the administrator. On the other hand, the administrator can-
not prevent a re-examination, when the proceedings are erroneous, be-
cause tliose actually interested have not appeared.
6. When any on§ claims to have the right to examine the correctness of a
final decree, the proper practice is for him to propound his interest to the
Court in which tlie decree is rendered. Upon tliis, after citation to tlie
administrator, and his appearance or default, tlie person is made a party or
his petition is dismissed.
7. When a writ of error is sued out by persons who are not parties to the
proceedings below, the writ of error will be dismissed.
Writ of Error to the County Court of Sumter.
The writ of error in this case is sued out by Watson and
his wife, who is the Emily Easley hereafter named, and a mo-
tion is submitted to amend the writ of error in the parties plain-
tiff, so as to conform to the transcript sent to this Court. The
motion is resisted, and a cross one made to dismiss.
23
178 ALABAMA.
Watson and Wife v. May.
The record discloses these facts:
At a special term of the County Court of Sumter, held on the
3d June, 1839, probate of the will of Wareham Easly was grant-
ed, and letters testamentary issued to David Blackshear and
Thomas Ballzell, who are named by it as executors. By this
will, specific bequests are made to Creed T. Easley and Martha
Ann Foreman, two of the testator's children. Another bequest
of a right of action is made to Martha Ann Foreman, before men-
tioned, and Samuel W. and Christopher Easley, two children of
his sons, and the remainder of his estate, real and personal, is
given to his wife, Emily Easley, and to her children, until his
daughters, Catharine Maria, Elizabeth Jane and Virginia Noble,
should become of age, when the whole estate was to be equally
divided between them, his said children. His executors are also
invested with power to sell certain lands described in the will.
Both the executors resigned the trust on the 17th June, 1839,
and on the 8th July, Patrick May, the defendant in error, was
appointed administrator de bonis non cum teUamento, &c. In
August of that year, the administrator filed a petition praying
an order for the sale of certain lands therein described, and other
than those named in the will. In this petition he sets out, that
Emily Easly, the widow, Catharine M., Elizabeth J. and Maria
N., the children of the testator, are the only persons interested,
they being the devisees, &c. A guardian ad litem was appoint-
ed, who denied the allegation, and a decree was made the same
day that the petition was filed for the sale of the lands. Com-
missioners were appointed to conduct the sale, and their report of
sale was confirmed at the October term of the same year. Af-
ter a return of inventory, account sales and several accounts
showins: the hiring of slaves, the administrator, on the 27th Octo-
ber, 1842, applied for leave to make a final settlement, and there-
upon the 3d of January, 1843, was set for that purpose. On that
day, as appears from the recitals of the record, the administrator
appeared and presented his accounts for settlement; a settlement
was made, in which he appeared as having expended more than
he had received, ^1,650. This sum, by the decree, was to be
retained by him out of uncollected assets ; or out of assets which
should afterwards come to his hands ; or for which an execution
might issue, at his option, to be levied of the goods and chattels
of the estate, as soon as administered by some other person, It
JUNE TERM, 1845. 179
Watson and Wife v. May.
does not appear that any one appeared at the settlement of tlie
estate to contest the proceedings, and the administrator immedi-
ately afterwards resigned his trust.
R. W. Smith, for the motion.
F. S. Lyon, contra.
G0LDTHWA1TE,J.— 1. In testamentary matters, the Or-
phans', or, more properly to speak, the County Court, is invested
with jurisdiction of a peculiar nature, entirely different in many
essential particulars from that of a court of common law ; and
in the exercise of this jurisdiction from its inception, upon the ap-
plication of any one for the grant of administration, to its close,
by rendering judgment upon the final settlement of the accounts
of the executor or administrator, questions may arise which re-
quire the intervention of parties who would not be parties under
other circumstances. Thus when a will is presented for probate
the heirs at law are proper parties to contest the will, and yet,
after its probate, it might be that they could have no interest
whatever in the subsequent proceedings, or in the final settlement.
So also where two wills exist, the legatees or devisees under one
of them, have the right to contest the other, as well as the heirs at
law to contest both. Again, the real estate being charged by
statute, generally, with the payment of debts on the deficiency of
personal assets, and the personal representative having the ca-
pacity to ask for an order of sale of lands, the heirs generally, or
the particular devisee, may be entitled to contest the facts, upon
the existence of which this power may be called forth. In all
these cases, and our statutes present many similar, it is evident,
unless the parties interested can rc-examinc proceedings alledged
to be erroneous, their rights may be greatly prejudiced. It was
with reference to such matters as these, our statute was enacted,
which provides, that from any judgment, or order final, whether
in vacation or term time, an appeal or writ of error will lie to
the Circuit or Supreme Court, in the same manner as upon judg-
ments in the Circuit Courts. [Clay's Dig. 297, § 4.] When,
however, an appeal or writ of error is spoken of, the statute must
be understood as using these terms in their known and received
signification, and ought not to be extended to take in cases in
180 ALABAMA.
Watson and Wife v. May.
which neither could be taken, according to any course of practice
known either to the civil or common law.
2. Among the duties imposed by law, upon the Judges of the
County Courts, are some which may be exercised although the
proceedings may not necessarily assume the form of a suit, by
the appearance of contesting or litigant parties. Thus adminis-
tration upon the estates of decedents, when there is no applica-
tion for the grant, may be imposed on the sheriff, and it is not
essential to the validity of any proceedings by an administrator,
save only in cases specially provided by the statute, that parties
should actually be made. Even when the estate is ready for a
final settlement, and consequently for distribution, only a general
citation to all persons concerned in adverse interest, to appear
was necessary prior to the last act; and this may be given by
advertisement, or by other mode of publication. [Clay's Dig.
229, §41.]
3. But it docs not follow, either that persons having an adverse
interest, arc concluded by an erroneous decree, or that they can,
without other proceedings, forthwith sue out a writ of error to re-
view the decree or judgment.
We say it docs not follow that persons having an adverse in-
terest to the personal representative are bound by an erroneous
decree. This will be apparent, when it is considered, that such
may exist and be in entire ignorance of their rights. To hold
such to be concluded, without express legislation to that effect,
would scarcely comport with sound views of justice.
4. On the other hand it is alike apparent, if any one, by assert-
ing an interest in the final distribution, can attack the decree by
suing out a writ of error, without further proceedings in the pri-
mary Court, the personal representative would have no opportu-
nity to litigate or examine the title by which they pretented to in-
terfere in the suit. That the personal representative is so enti-
tled, was settled in this Court by the decree of McRae v. Pegues,
4 Ala. Rep. 158. See also, Public Adm'r v. Watts & Leroy, 1
Paige, 347 ; Kellet v. Rathbun, 4ib. 162.
5. In Courts, proceeding according to the course of the civil
law, no difficulty ever arises upon the questions of making new
parties to causes in progress. The Courts being always open,
the person claiming an interest in the cause, or the subject mat-
ter of the suit may always intervene, which is done by a petition
JUNE TERM, 1845. 181
Watson and Wife v. May.
or libel, in which he sets out his interest, or the title by which he
claims to come before the Court. If this title is denied or disput-
ed, an exceptive allegation is filed by the other parties, and, if
necessary, the interest is ascertained. [Public Adm'r v. Watts
& Leroy, 1 Paige, 347; 2 Brown's Civ. & Adm. Law, 402;
Reid V. Owen, 9 Porter, 181.] A similar rule obtains after a fi-
nal judgment has been rendered in admiralty suits, and the cause
may not only be examined as to the law, but the facts also, if the
proceedings have been by default. [2 Bro. Civ. & Adm. Law,
402.]
Under our statutes, however, it is evident enough,that the Le-
gislature never contemplated, or intended, a review of the facts^
when the proceedings by an executor or administrator have been
in conformity with the rules prescribed for his action, although it
might happen that persons adverse to him in interest were, in
point of fact, never apprised of it, or of his intention to proceed
to a final settlement. On the other hand, it seems to be alike evi-
dent, that he cannot prevent a re-examination when the proceed-
ings are erroneous, because those interested in contesting the mat-
ter have not appeared.
G. The course of practice, which seems the only one by which
the rights of all can be properly guarded, when there has been no
contested suit,is to permit all, or any of those who claim to have
the right to examine the correctness of the final decree, to pro-
pound their interest to the Court in which the decree was ren-
dered, upon which a citation to the personal representative would
be proper, requiring him to appear at a stated term, or in vaca-
tion, and contest their claim. If, after service, he remained in
default, the order would be, that parties should be made for the
purposes of the writ of error, or appeal, and the same order would
be proper, if the claim was supported against an exceptive alle-
gation of the other party. If, however, the exceptive allegation
was found to be true, the petition would be dismissed. This is,
in effect, the course of practice in the Eclesiastical and Admiral-
ty Courts, somewhat modified to meet the exigencies called for
by our statutes.
7. To apply what we have now ascertained to the case be-
fore us, it is necessary to recur to the facts contained in the re-
cord. Do the plaintiffs in error wish to question the coiTcctness
of the proceedings for the sale of the real estate? or, is it the final
188 ALABAMA.
Congregational Church at Mobile v. Elizabeth Morns.
settlement made by the administrator de bonis non with the
Court? And if the latter, how are wc at this time to know, that
ihe administrator may not have fully paid and discharged to them
all that they claim ? If the order of sale is the subject to be ex-
amined, that is already barred by lapse of time. [Boyett v.
Kerr, June Term, 1844.] And if it is matter pertaining to the
final settlement, the administrator is entitled to question the plain-
tiflfs right to call him to account, or to examine errors, which,
after all, may not affect them. If they have an interest to correct
any errors in the final settlement, they can place themselves in a
condition to examine them on error by pursuing the course we
have indicated.
There is nothing in the transcript either to warrant the writ of
error as it now is, nor can it be made available by amendment.
It must therefore be dismissed.
CONGREGATIONAL CHURCH AT MOBILE v. ELIZA-
BETH MORRIS.
1. The trae construction of the two acts of the Legislature for the relief of
Elizabeth Morris, is, that she was made capable of inheriting the lands of
her uncle, James D. Wilson, in the same manner as if herself, her motlier
and her uncle, had been native bom citizens. The declaration in the act,
that the land shall not escheat to the State, is a waiver of the right of the
State in her favor only, and will not enable her brother, who is an alien,
or was so at his uncle's death, to inherit as his heir.
2. When a certified copy of a registered deed is admissible in evidence, it is
prima facie a correct copy of the original, but may be shown to be incor-
rect, by comparing it, either with the original deed, or the record of it on
the Register's book. But where the difference between the record of the
deed, and the copy taken from it, consisted in a scroll, or written seal,
which was found in the copy, and did not appear upon the Record book,
when produced in Court, it was not error for tlie Court to leave it to the
jury, to say, whether the copy was not correct when it was taken, as the
JUNE TERM, 1845. 183
Congregational Church at Mobile v. Elizabeth Sforris.
original deed was in Court, in the possession of the other party, which he
declined to produce.
3. The wife of an alien, though an American citizen, is not dowable of hiS'
lands.
4. Whetlier the saving in favor of creditors in the statute of escheats, applies
to the land held by an alien at his death — Quere? But if it does apply in
such a case, the fact of such indebtedness would not prevent the escheat.
Nor could the land be sold by an administrator of the alien, for the pay-
ment of creditors, without authority from the Orphans' Conrt, as in other
cases.
Error to the Circuit Court of Mobile.
Ejectment by the defendant in error, for a lot in Mobile.
Upon the trial, as shown by a bill of exceptions, it appears, that
the plaintiff, to prove title to the premises, read in evidence a
statute passed 9th January, 1836, entitled "an act for the relief
of Elizabeth Morris," and proved that James D. Wilson was
her uncle ; that her mother was the sister of said James ; that"
herself, her mother, her father, and said James, were all natives
of Scotland, and not naturalized. That Wilson purchased a
piece of land, of which the lot sued for was a part, of William E.
Kennedy, and received from him a conveyance, dated in 1818,
under which he held the possession, and that he continued in
possession until he died, in the year , intestate, and without
children.
That the plaintiff came to this country with her mother, be-
tween the years 1820 and 1821, and has since resided here ; that
her mother died in 1822; that her father never came here, and
died in Scotland ; that her three brothers, David, Charles and
George, also came to this country, but that George alone is liv-
ing. It also appeared, that Wilson had a brother in Scotland, but
it was not known whether he was living or not.
The plaintiff further gave in evidence, a duly certified copy of
the conveyance of Kennedy to Wilson, purporting to be a copy
of the registration of the instrument, in the clerk's office, (having
laid the grounds for the introduction of secondary evidence.) and
by the copy so offered and certified, there appeared a seal, or
scroll, affixed to the name of William E. Kennedy, so as to make
it a deed, or sealed instrument. It was further shown, that Ken-
nedy was in possession before the sale to Wilson, and that he
184 ALABAMA.
Congregational Church at Mobile v. Elizabeth Morris.
claimed under a concession by the Spanish Government, made to
Thomas Price.
The defendant proved, that on the 9th August, 1836, it pur-
chased the lot from one Johnson, for $ , and received from
him a deed of conveyance of that date ; that he was in posses-
sion of the property at, and before that time ; that they gave a
full value for the lot, and expended on it $13,000.
The defendant further proved, that Wilson married in this
country, a native American wife; that when he died she remain-
ed in possession of the property, and continued in possession until
she sold it. That she was appointed administratrix of the estate
of Wilson, and paid a portion of his debts. That among other
debts, was one to James H.Garrow,who transferred it to Bartlett
& Waring. That the widow married one Lord, by whom she
had a son, who is still living. That Lord died, and she married
one Morgan Brown, who is still living, but that she is dead. That
Wilson left no personal estate of any value, and that on the 12th
March, 1835, Brown and wife, for 86,050, conveyed the premi-
ses to Bartlett & Waring, and put them in possession.
The defendants, to show, that the conveyance from Kennedy
to Wilson, was not a sealed instrument, but a simple contract,
introduced the original book of records, kept in the County Court,
from which the copy shewn by the plaintiff purported to have
been taken, and in which original record, there appeared no seal
or scroll to the name of Kennedy, and in this respect the record
book differed from the copy ; but it was in proof that the origi-
nal deed was in Court, in the possession of the defendant's coun-
sel, who refused to introduce the same.
They further read to the jury, a Spanish concession made to
Thomas Price, in 1806, and a conveyance thereof from Price to
William E. Kennedy, previous to the deed from him to Wilson ;
also, a deed from William E. to Joshua Kennedy, in 1824, and
also a patent from the United States to Joshua Kennedy, upon
the confirmation of the grant, dated April, 11836, which embraced
the land sued lor. Joshua Kennedy died, and left children as
his heirs, in 1838.
Upon the above state of facts, the defendant moved the Court
to charge, that the plaintiff could not recover, by reason of any
descent cast from her uncle ; also, that she could not recover the
whole title, as she had brothers. That she could not take as a
JUNE TERM, 1845. 185
Congregational Church at Mobile v. Elizabeth Morris.
grantee of the State, as for lands escheated to the State. That
the wife of Wilson would be entitled to dower in the land, and
that the title made by her to Bartlett & Waring was superior to
that of the plaintiffs.
These charges the Court refused, and charged, that the effect
of the two acts of the Legislature, was to vest in the plaintiff a
good title by descent, as sole heiress of James Wilson, if she was
his niece, and he died intestate and without children, notwith-
standing she had brothers and another uncle, all being aliens.
That the act enabled her to take alone, the whole estate. That
the wife of Wilson being a native American, made no difference,
her husband being an alien, she was not entitled to dower; and
that the plaintiff could take without office found of the escheat of
the lands.
The defendant further asked the Court to charge, that unless
Wilson had the legal estate, or fee simple to the property, there
could be no escheat, and if the conveyance of W. E. Kennedy
was not a sealed instrument, or deed, the legal title did not pass
to Wilson by it. That if the fee was in the United States, till
after Wilson died, there could be no escheat. That the original
record of the deed of William E. Kennedy, no seal thereto ap-
pearing, was conclusive against the evidence of the copy that
there was no seal. These charges the Court refused to give,
except the first, and charged the jury, that there could be no es-
cheat unless Wilson had the legal title, but that the patent was
only a confirmation by the United States of the Spanish title, and
did not operate as a new grant of the land, to prevent an escheat.
That it was for the jury to determine, whether the deed of Ken-
nedy was sealed or not, from the copy and the original record ;
that both were before them ; that the record was not conclusive,
and they might infer, if they thought proper, that the clerk had
done his duty in making the copy, and that when it was made,
there was a seal, although none now appears. To all which
the defendants excepted.
The assignments of error embrace all the matters presented
by the bill of exceptions.
Campbell and Stewart, for plaintiff in error made the fol-
lowing points:
The title of the plaintiff derived from the two acts of Asscm-
24
186 ALABAMA.
Congregational Church at Mobile v. Elizabeth Morris.
bly, must cither operate as a grant, or in removing a disability*
The latter only was intended ; the statute does not grant the title*
but confers on her the privilege of taking by descent, notwith-
standing her alienage.
It is one of the first principles of the law of descent, that it
must vest at the time of the descent, or it cannot vest at all ; but
Wilson died in 1824, and her capacity to take by descent did not
exist until long afterwards. [2 Hill, 67.] Nor can this capaci-
ty be conferred by the Legislature, as it cannot create a fact. See
also, 2 Howard, 589; 8 Wheaton, 1.
The estate derived through the widow, having vested, could
not be thus divested. It might grant the land to her, if it had the
power. Has it done so ? That point was decided when the
case was here before, under the first statute, 9 Porter, 270 ; the
last act has merely removed another disability.
The State had not the power to grant. The act itself declares
that the land shall not escheat — and the plaintiff, by the act, is
to take as if Wilson, herself, and her mother, were citizens.
The land, in point of fact, did not escheat. At the time of the
death of Wilson, the title was incomplete, and the warranty of
Kennedy did not pass to the State, with the land. [Shep.
Touch, 200 ; Lincoln College case, 3 Rep. last page of the case.]
When, therefore, Kennedy received the title from the United
States, he took it discharged from the obligation of his warranty.
Whether the property would revert to Kennedy, or belong to the
first occupant, it is clear it could not escheat to the State. [3 P.
Will. 32, note; 16 Vin. title Occupant; 3 Vesey,423; 1 Coke's
1st. 228 ; Cruise Dig. Escheat ; 3 Vol. 286, 296 ; 1 Hilliard's
Ab. 23.]
At all events, the Court erred in saying that Miss Morris was
entitled to recover the entire lot. The statute gives the widow
one half, when there are no children. [Clay's Dig.] The wife
being a citizen, may take dower from an alien husband. [Cruise
Dig. 3 vol., 303 ; 9 Mass. 363.] An alien may sell, and convey,
or devise, [7 Cranch, 621,] and, as marriage is a purchase, he
may endow.
The Court erred in leaving it to the jury, to say, whether the
original record, or the false copy, should be believed by them.
They also cited, 5 Rawie, 112 ; 1 Lomax Dig. 604 ; 3 Pick. 221 ;
1 N. & McC. 292 ; 7 Com. Dig. 79 ; 1 id. 553; 4 Cranch, 321 ;
JUNE TERM, 1845. 187
Congregational Church at Mobile v. Elizabeth Morris.
1 Hay. 373; 11 Wheaton, 332 ; 1 Bro. 201; 1 Blk. R. 123;
1 Eden. 177 ; 3 B. Monroe, 252 ; 2 How. 589 ; 2 Peters, 434.
Phillips, contra. • /'
The title of the defendant in error is under the acts of 1836 and
1841, which show, that in her favor the State releases its
escheat — it declares, that she shall " take and hold," &c.
As the property of Wilson vested in the State, immediately on
his death, as declared by the statute, these acts must be construed
as a donation to her; for it cannot be considered that the State
yet holds this interest, in opposition to its own acts. At common
law, as well as by our statute, the property vested immediately
in the State, without office found. [Clay's Dig. 189 ; 15 Pick.
345; 16 id. 177.]
There is no incumbrance upon the property — for the widow
is not dowable, of the lands of an alien husband. [1 Coke Litt.
30 b, 31 a.]
A grant by the State to individuals, to hold lands in a corpo-
rate capacity, itself confers the corporate character. [2 Wend.
109 ; 3 Pick. 224.]
If a mere equitable right of escheat existed, the State would
take as the successor of Wilson, and take a complete title, as
Wilson would have taken, had he not labored under the disabili-
ty of alienage.
The certified copy of the deed, under the circumstances of this
case, is conclusive. He also cited, 3 Hill, 79 ; 2 Leigh, 109 ; 1
Johns. Cas. 400 ; 2 Term, 696 ; 7 id. 2 ; 3 Phil. Ev. 369 ; 1 Ala.
Rep. 273 ; 4 id. 86.
ORMOND, J. — The principal question in the cause, depends
upon the proper construction of the two acts of the Legislature,
passed for the relief of the defendant in error. The act of 1836,
is to the following effect : " Be it enacted, &c. That Elizabeth
Morris, an alien, of Mobile county, be, and she is hereby, author-
ized to inherit, and have and hold, such of the estate of her late
uncle, James D. Wilson, as she might have inherited by law, if
she had not been an alien, and that the same shall not escheat to
the State."
The construction put upon this act, in the case of Bartlett &
Waring v. Morris, 9 Porter, 269, was, that it merely removed the
188 ALABAMA.
Congregational Church at Mobile v. Elizabeth Morris.
disability of alienage existing in Elizabeth Morris, but did not
qualify either her mother or Wilson, her uncle, li aliens, to trans-
mit to her an inheritable estate. In eflcct, that it merely gave to
her the benefit of citizenship. To remedy the omissions of this
act, the act of 1841 was passed:
« An act to amend and explain an act entitled an act for the
relief of Elizabeth Morris.
« Be it enacted, &c. That Elizabeth Morris, an alien of Mo-
bile county, be and she is hereby authorized, and enabled, to have
and to hold, such of the estates of her late uncle, James D. Wil-
son, Vi^ho died in Mobile county, as she might have inherited by
law, had she not been an alien — had her mother, who was the
sister of said Wilson, not been an alien — and had the said James
D. Wilson not been an alien, but a citizen, capable of transmit-
ting inheritable estates. And that the true intent and meaning
of the act, of which this is amendatory, is, that said Elizabeth
Morris should have been made capable of inheriting from her
said uncle, in the same manner as if the said Elizabeth, her mother,
and her said uncle had been natural born citizens of the United
States."
Nothing can well be conceived more explicit than this last act,
to remove the obstacles which opposed the assertion, by the de-
fendant in error, of title to the land, as the heir at law of her uncle.
The defect, as we have seen, of the former law, was, that whilst
she was made capable of taking, her mother, and her uncle, being
aliens, were incapable of transmitting the estate. The effect of
the act, is, to give to all these persons the attributes of citizens,
and the only question upon this part of the case, is, whether she
has shown herself to be the sole heir of her uncle.
The uncle, it appears, died without children, and it does not
appear that he has any brother or sister alive; his nephews and
nieces are therefore his heirs at law. Of these, it seems, there are
but two living, the defendant in error and her brother George.
It does not appear that the latter was a citizen at the time of his
uncle's death ; but if he were, his mother and uncle being aliens,
could not transmit to him inheritable blood, and it is therefore the
same as if he were not in existence. [Orr v. Hodgson, 4 Wheat.
401 ; Smith v. Zaner, 4 Ala. Rep. 106.] The act of 1841 re-
moves the disability arising from the alienage of the mother, and
uncle, suh modo. It would be a most unreasonable interpretation
JUNE TERM, 1845. i^9
Congregational Church at Mobile v. Elizabeth Morris.
of the act, so to construe it, as to remove the disability as to all the
relations of Wilson. The act is for the relief of Elizabeth Morris,
and authorizes her " to have and to hold" the estates of her un-
cle, and to have her right to inherit through her mother, in the
same manner as if all the parties had been native born citizens.
The act, in a word, makes her capable of inheriting her uncle's
estates, and to accomplish this object, it removes out of the way
the impediments arising from the alienage of her mother and un-
cle ; as to all the rest of the world they continue to be, what they
died, aliens. This is the plain and obvious intent of the statute ;
any other construction, would defeat the object the Legislature
have, by two several acts, endeavored to accomplish. We think
therefore, that she is shown upon the record to be the sole heir of
her uncle, capable of inheriting his estate.
It is further urged, that the power to inherit must exist at the
time of the descent cast, and that as no such capacity existed in
the plaintiff, at the death of her uncle, it cannot be conferred by
the Legislature, which it is said cannot create a fact.
It was certainly competent for the Legislature, to waive the
forfeiture arising from the alienage of the plaintiff's uncle, and it
is wholly unimportant, in the present case, that this is done by
an act having a retrospective operation. The power of the Le-
gislature to pass acts of that description, affecting civil rights,
cannot be questioned, and has been repeatedly recognized by this
Court. The prohibition of the constitution of the United States
against the passage, by the States, of ex post facto laws, relates
to penal and criminal proceedings. [Watson and others v. Mer-
cer, 8 Peters, 88.] Whether the States can pass retrospective
laws, affecting vested rights, is a question not presented on the
record, as no right is shown to have existed, but the right of the
the State by escheat.
The case of the People v. Conklin, 2 Hill, C7, is unlike this
case, in the important particular, that there the State was enforc-
ing its right of escheat, against the descendant of an alien ; and
the Court held, that the naturalization of the alien, many years af-
ter the descent cast, would not retroact, so as to divest a right
which had previously vested in the State. It is obvious that has
no application to a case, where the State is not only not enforc-
ing its rights, but has, in the most explicit terms, declared that
the land shall not escheat.
190 ALABAMA.
Con^egalional Church at Mobile v. Elizabeth Morris.
It is further urged, that at the time of the death of Wilson, the
title was incomplete, being then either in Kennedy, from whom
he purchased, or in the United States, and that the warranty of
Kennedy to Wilson, did not pass with the land. It is stated in
Sheppherd's Touchstone, 200, that " he that comes into the land,
merely by the act of law, in the post, as the Lord by escheat,
and the like, shall never take advantage of a warranty." It is
not necessary that we should enter upon the inquiry, whether
the statute of this State, in relation to escheats, has not swept
away entirely, the ancient common law doctrine of escheats, with
its feudal appendages, by making the State, the successor to all
persons who are intestate, without heirs, whether the property
be real or personal ; because, from the record, it appears that
the fact is not as the argument supposes.
To establish a legal title in Wilson, at the time of his death,
the plaintiff offered in evidence a duly certified copy, from the
records of Mobile County Court, of the conveyance of the land
from Kennedy to Wilson, by which it appeared, that it was a
sealed instrument. The defendant, to prove that it was not a
deed, produced the original record book, from which the copy of-
fered in evidence was taken, and from that it appeared, that there
was no seal or scroll attached to the name of William E. Ken-
nedy, the grantor. The original deed was also in Court, in the
possession of the defendant's counsel, but which he declined to
produce in evidence. The Court left it to the jury to determine,
as a question of fact, whether the instrument was sealed or not,
and refused to instruct them, that the appearance of the instru-
ment in the record book was conclusive, that the original was not
a deed.
The object of our registration acts is two fold ; to give notice
of the existence of the instrument recorded, and as far as practi-
cable, to perpetuate its contents ; and if the deed be lost or des-
troyed, or not in the power of the party to produce, the statute
makes a certified copy from the record, evidence. [Clay's Dig,
155, § 25.] We apprehend, however, that the certified copy,
thus produced, is only prima facie evidence of the contents of the
original, and may be shown to be incorrect, as the record itself
is but a copy from the original.
The transcript offered in evidence in this case, might doubt-
less be confronted with the record, of which it purports to be the
JUNE TERM, 1845. 19f
Congregational Church at Mobile v. Elizabeth Morris.
transcript, and if it differed from it, must yield to it, as the record
is the original of the transcript. If the difference consisted in the
omission of part of the written contents of the recorded deed, or
in an alteration of its terms, and the record bore no marks of vio-
lence or change, there would be no room for doubt ; but the want
of a scroll, or flourish of the pen, against the name of the
grantor, does not appear to be of the same conclusive character
It must be recollected, that it is not shown by proof that there
was a mistake in the copy, at the time it was taken ; but such
mistake is sought to be inferred, because, at the time of the trial
of the cause, it did not appear by inspection of the record, that
there was a scroll appended to the name of Kennedy, the grantor.
Now, it may be that the scroll had once been there, and effaced
by mechanical, or obliterated by chemical means ; or it may have
been made so faintly, originally, as to have disappeared by efflux
of time. It must, however, be conceded that in the absence of
any proof throwing suspicion over the purity of the record, it
would be the duty of the jury to give effect to the record, against
the transcript, where there was a variance between them. But,
there is another fact in the cause which presses most strongly up-
on us, as it doubtless did upon the jury in attaining their conclu-
sion ; it is, that the original deed was in Court, in the possession
of the defendant, who therefore had it in its power to remove all
doubt from the question, by the production of the original, and
declined doing so. From this conduct, a strong presumption ari-
ses that the production of the paper would have established the
fact, that it was a deed, as otherwise it would clearly have been
its interest to produce it, and not to rely upon the weaker, and
contested evidence, afforded by the record, which, though legal
testimony, was inferior to the original deed.
Mr. Starkie lays down this rule in these words : " Although a
party may not be compellable to produce evidence against him-
self, yet if it be proved that he is in possession of a deed or other
evidence, which, if produced, would decide a disputed point, his
omission to produce it, would warrant a strong presumption to
his disadvantage." [1 vol. 489.]
So in Haldane v. Harvey, 4 Burr. 2484, the law is thus laid
down, and was the basis of the judgment of the Court in that case.
It is indeed, but a modification of the rule, that the party must pro-
duce the best evidence in his power.
192 ALABAMA.
Congregational Church at Mobile v. Elizabeth Morris.
As, therefore, the Court instructed the jury that the plaintiff
could not recover, unless Wilson had a fee simple title, the find-
ing of the jury in favor of the plaintiff, is an affirmance of the ex-
istence of such a title, at the time of his death, and there can be
no doubt that this was such an interest as would pass to the State,
Wilson having died intestate, and being an alien, incapable of having
heirs. The language of the act is — "The estateboth, real and per-
sonal, of persons within this State, who have died intestate, or who
may hereafter die intestate, leaving no lawful heir or heirs, shall be
considered as escheated to the State of Alabama." [Clay's Dig.
189, § 1.] This interest, or right of succession, by the act in fa-
vor of Miss Morris, the State waived, and removed all the disa-
bilities which prevented her from asserting title to the land as the
heir of the deceased.
It is further insisted, that the plaintiff is not entitled to recover
the entire lot, as Wilson left an American bom wife, who enter-
ed upon the land in virtue of her right of dower, and afterwards
sold and conveyed it to another. A widow has no estate in the
lands of her late husband, until her dower is assigned, but a meje
right to occupy the dwelling house, &;c. until her dower is allot-
ted. [Weaver & Gaines v. Crenshaw, 6 Ala. Rep. 873.] And
it does not appear that any assignment of dower was made in
this instance. Again, an estate in dower, is an estate for the
life of the dowress only, and if it had been assigned to her, would
have terminated at her death, which occurred before the suit
was brought. It is equally clear, that she could convey no
greater interest than she had herself.
Independent of these considerations, the widow was not enti-
tled to dower. An alien may, it is true, purchase land, but he
holds for the State ; in contemplation of law, he has no interest
in it, and therefore cannot transmit any. Nor can any one, by
operation of law, derive an interest by, or through him. It fol-
lows, that the wife of an alien, though she be a citizen, is not dow-
able of his lands, and such is the settled rule of law. [1 Thomas'
Coke, 662, 31, a ; Park on Dower, 229.] The sale and convey-
ance by her passed nothing, and interposes no obstacle to a re-
covery.
The question as to the right of creditors to have their debts
discharged out of the escheated lands, is not distinctly presented
upon the record. In the case of escheats at common law, there
JUNE TERM, 1845. 199
Congregational Church at Mobile v. Elizabeth Morris.
can be but little doubt that the crown would take the land, free
from the payment of the debts of the deceased ; to the payment
of which it was not in any case directly subject. In practice,
however, it appears the right of the crown is not asserted even
against the natural relations of the deceased. See Hubbach on
Succession, 74 ; and several acts of Parliament have been passed
on the subject.
The statute of escheats of this State, contains a provision,
« that nothing herein contained shall prejudice the right of credi-
tors, or other individuals having claims or legal titles, or who
shall be under the disabilities of infancy, coverture, duress, luna-
cy, or beyond the limits of the United States, untill three years
after the disability shall be removed." [Clay's Dig. 191, § 9.]
Whether this clause applies to lands of aliens which have escheat-
ed, or not, it is not proper we should now discuss. It is true, it
appears that a portion of the debts of Wilson are still unpaid —
that one of those debts belonged to Bartlett & Waring, who be-
came the purchasers of the lot from the widow of Wilson, and
her , husband, after her second intermarriage for $6,050. But
what the amount of the debt is, is not shown, nor indeed is it
shown that the defendant derives title through Bartlett &
Waring.
If it were conceded, that the creditors of an alien, were enti-
tled under the statute, after his personal estate was exhausted, to
the payment of their debts out of his lands escheated to the State,
it is apprehended the fact of such indebtedness would not pre-
vent the escheat, but would be a charge upon the land to which
the State had succeeded ; and that the land could not be sold by
an administrator of the alien for the payment of the debt, with-
out authority from the Orphans' Court, as in other cases.
If, then, it be true, that these debts are a charge upon the land,
and are not barred by the limitation of the statute, it would not
prevent a recovery by the plaintiff, who, whether she is consid-
ered as succeeding to the rights of the State, or by the removal
of the disabilities of alienage, is enabled to deduce her title as
heir at law of her uncle, would, in either event, be entitled to re-
cover the land, though there might be outstanding debts which
were a charge upon the land.
From these views, it results that there is no error in the judg-
ment of the Court below, and it is therefore affirmed.
25
194 ALABAMA.
Doremus, Suydam & Co. v. Walker.
DOREMUS, SUYDAM & Co. v. WALKER.
1. The plaintiff recovered a judgment against the defendant, on which a
fieri facias was issued, and levied on personal property, to which a third person
interposed a claim, and executed a bond with security to try the right as pro-
vided by statute ; afterwards the defendant filed his petition in bankruptcy,
and in the regular course of proceeding was declared a bankrupt and dis-
charged, pursuant to the act of Congress of 1841 ; on motion of the de-
fendant the levy of the _^.ya. was discharged and set aside: Held, that the
proceeding to try the right of property did not destroy the lien of the ^^a.;
at most, it was only in abeyance during their pendency, would be revived
and might be coerced as soon as the claim was determined to be indefen-
sible: FuHher^^haX the lien ofa judgment, or j?. /a. is preserved according
to the right of the creditor at the time the bankruptcy is established ; if the
lien is then absolute, it completely overrides the decree, and the creditor
will be let into the enjoyment of its fruits.
Writ of error to the Circuit Court of Lowndes.
This was a motion to quash the levy made and indorsed by
the sheriff on a writ o^ fieri facias. The facts, so far as materi-
al, may be thus condensed : A judgment was rendered on the
4th April, 1842, on which the ^. /a. in question was received the
7th May, 1842, and returned by the sheriff that he had levied the
same on the 15th June next thereafter, on certain slaves (naming
them,) that a claim had been interposed by a third person, and
bond executed, with surety, to try the right.
On the 15th August, 1842, the defendant filed his petition in
the District Court of the United States sitting at Mobile, and on the
second of May, 1843, he was declared a bankrupt, and fully dis-
charged from all the debts which he owed at the time of the ex-
hibition of his petition, pursuant to the provisions of the Bankrupt
act of 1841 . All which were vouched by the record of the pro
ceedings in the District Court, accompanied with the defendant's
certificate &c. Thereupon it was ordered that the levy in ques-
tion be discharged, set aside, and for nothing held, &c.
R. Saffold, with whom was BoLiNG,forthe plaintiff in error,
JUNE TERM, 1845. 195
Doremus, Suydam & Co. v. Walker.
made the following points : 1. The discharge of the defendant
under the bankrupt law, did not impair the lien which the plain-
tiffs acquired by their judgment, execution and levy. [2 Caine's
Rep. 300; Ex parte Foster, 5 Law Rep. 55; In the matter of
Cook, id. 443-4-5-6 ; Kittredge v. Warren, 7 id. 77 ; Kittredge
V. Emerson, id. 312-3; Button & Richardson v. Freeman, 5 id.
447,452; Ex parte The City Bank of New Orleans, 7 Law
Rep. 553; Mosby v. Steele & Metcalf, 7 Ala. Rep. 249;
Owen on Bankr. 181; Stead v. Gaiscoigne, 8 Taunt. Rep. 527.
See also, 1 Wash. C. C. Rep. 29; Clay's Dig. 208.J
A. F. Hopkins and T. Williams, for the defendant. The
levy of a fieri facias on personal property, merely invests the
sheriff with a special, while the general property remains with
the defendant in execution. [8 Johns. Rep. 486 ; Law Rep.
for June, '42, p. 65-6-7.] And where a claim is interposed by a
third person, and bond executed, with surety, as prescribed by
the statute, the special property of the sheriff is thereby divested,
and the possession revested in the defendant, from whom it was
taken. Pending the claim, the sheriff may levy on other pro-
perty, which could not be done, if the lien on the property claim-
ed still continued. [2 Porter's Rep. 51-2.]
The lien, after the claim, may be assimilated to the lien of an
attachment, after property attached has been replevied ; in the
one case it depends upon the judgment of condemnation, in the
other upon the fact whether a judgment is recovered by the plain-
tiff. And the lien being in this imperfect state, the property, so
far as the bankrupt is interested in it, is transferred to the assignee
in bankruptcy, who may litigate the right to it, and insist upon
devoting it to the bankrupt's debts. [Law Rep. June, 1842, p.
55, 64-5-6-7, 70, 72-3.] If the plaintiffs had a lien, the decree in
bankruptcy would prevent them from prosecuting it in a State
court ; but under the bankrupt act, the District Court should be
resorted to for its protection. [Law Rep. June, 1842, p. 72-3 ;
id. February, 1845, 120.] The decree placing the property in
the custody and under the supervision of that Court.
The object of an execution is to collect the debt, and if the de-
fendant is discharged from all his debts before it is satisfied, the
execution may be quashed.
If the defendant had sued out a writ of error and executed the
196 ALABAMA.
Doremus, Suydam & Co. v. Walker.
usual bond, the levy would have been discharged and the claim
consequent thereon, could not have been tried ; but the bond of
the claimant would become inoperative.
By the 3d section of the bankrupt act all the estate of the bank-
rupt, vests in the assignee, from the time his petition is filed. It
is not denied, that the assignee takes subject to all the rights, equi-
ties, &c. of third persons. [9 Ves. Rep. 100; Law Rep. Nov.
1842, p. 308.] But it is insisted, that liens by operation of law, as
judgment, execution, &c., are entirely divested by the decree
which authorizes the certificate of discharge to issue. [See 5
Ala. Rep. 676, 810 ; Law Rep. May, 1842, p. 19.]
COLLIER, C. J.— The eighth section of the act of 1807,
«< concerning executions," &c. enacts that " No writ oi fieri facias,
or other writ of execution, shall bind the property of the goods
against which such writ is sued forth, but from the time that such
writ shall be delivered to the sheriff," &c. « to be executed," &.c.
[Clay's Dig. 208, § 41.]
By the act of 1812, it is provided, that where a sheriff shall
levy an execution on property claimed by a third person, the
claimant shall make oath to the same, and give bond to the plain-
tiff, with surety in a sum equal to the amount of the execution;
conditioned to pay the plaintiff all damages which the jury, on the
trial of the right of property, may assess against him., in case it
should appear that the claim was made for delay, &c. It is
provided further, that the sheriff shall return the property levied
on, to the person out of whose possession the same was taken,
upon such person entering into bond with surety, to the plaintiff in
execution, in double the amount of the debt and costs, condition-
ed for the delivery of the property to the sheriff, whenever the
claim of the property so taken shall be determined by the Court;
and if the obligors in the last mentioned bond shall neglect or
refuse to deliver the property to the sheriff, the sheriff shall
forthwith return the bond to the clerk's office of the Circuit Court;
and the same " shall have the force and effect of a judgment,
ETnd execution may be awarded by the Court against all or any of
the obligors having ton days notice thereof." The execution, or
a copy thereof, (where it is issued from another county,) to-
gether with the papers pertaining to the claim, are returnable to
the Circuit Court of the county where the fieri facias was levied.
JUNE TERM, 1845. 197
Doremus, Suydam & Co. v. Walker.
[Clay's Dig. 210-11, 213, § 63.] A subsequent statute, passed
in 1828, repeals so much of the pre-existing law as required two
bonds to be taken for the trial of the right of property, and enacts
that the claimant shall execute a bond with surety, " payable to
the plaintiff in execution, and conditioned for the forthcoming of
the property, if the same be found liable to the execution, and for
the payment of such costs and damages as shall be recovered
for putting in the claim for delay." Further, it is made the du-
ty of the jury, in all cases when they find the property subject to
execution, " to find the value of each article separately ; and if
the claimant shall fail to deliver the same, or any part thereof^
when required by the sheriff, it shall be the duty of the sheriff to
go to the clerk, and indorse such failure on the bond by him re-
turned, with a copy of the execution." It is then declared that
the bond shall have the force of a judgment, and the clerk shall
issue execution against the claimant and his sureties, for the value
of the property not delivered, &c. And by this latter enactment
it is also provided, that proceedings for the trial of the right of
property shall in no case prevent the plaintiff from going on to
make his money out of other property than that that levied on
and claimed, if to be found. Act of 1828, Clay's Dig. 213-4, §§
62, 64, 67, 68.
The construction of the act of 1807 has been uniform, that the
delivery of o. fieri facias to a sheriff, or other proper executive offi-
cer,eo instanti operates a lien upon the goods of the dcfendant,and
takes from him the right to dispose of them free from the legal
incumbrance. And the creditor who has outstripped all other
competitors in the race of diligence, cannot be defeated, or over-
reached, by a junior ^en/acms unless he has allowed his execu-
tion to become dormant, or has omitted to sue it regularly from
term to term.
It may be conceded that the seizure of goods, under legal pro-
cess, merely invests the officer with a special property, and hav-
ing disposed of them as the law provides, his estate is at an end.
Such a concession cannot benefit or prejudice either party. It
proves nothing in respect to the lien, which the plaintiff in execu-
tion acquires. The sheriff may part with the possession, with-
out in any manner affecting the plaintiff's right ; and we appre-
hend, such has been the effect of delivering the slaves levied on,
in this case, into other hands, upon reciving a bond stipulating for
198 ALABAMA.
Doremus, Suydam & Co. v. Walker.
their return, in the event that they should be adjudged to be the
property of the defendant. The trial of the right of property as
provided by statute, is quasi a proceeding in rem — the specific
thing is to be restored if the claimant shall be unsuccessful.
This, v^^e think, cannot entirely destroy the lien ; it may keep it
in abeyance, but its active energy will revive, and may be co-
erced, so soon as the claim interposed shall be determined to be
indefensible.
It might, if necessary, be worthy of inquiry, whether the act of
1828, in modifying the law so as to require a single bond to be
executed, embracing substantially, the conditions of both the
bonds previously necessary, does not by implication require the
sheriff to deliver the property levied on, to the claimant instead
of the defendant in execution. Is this not clearly inferrible, from
Rives & Owen v. Willborne, 6 Ala. Rep. 45, and Langdon &
Co. V. Brumby's Adm'r, 7 id. 53 ? Be this as it may, it was di-
rectly decided in Mills v. Williams, et al. (2 Stewt. & P. Rep.
390,) that an execution does not lose any lien acquired by it, if
it is subsequently suspended in its operation on particular pro-
perty, by proceedings to try the right, even under the act of
1812.
So in Campbell v. Spence, et al. 4 Ala. Rep. 543, we say —
" where the right to issue execution is merely suspended, as in
the case of forthcoming bonds, and bonds to try the right of pro-
perty," the lien of the judgment will continue. See also McRae
and Augustin v. McLean, 3 Porter's Rep. 138; Hopkins v. Land,
4 Ala. Rep. 427 ; Bartlett & Waring v. Doe ex dem. Gayle &
Phillips, 6 Ala. Rep. 305, and cases there cited.
It is argued for the defendant in error, that although the lien
may not be impaired by the claim of property, that the third
section of the bankrupt law of 1841, vests all the property
and rights of property, &c. of the bankrupt in the assignee,
and that the eleventh section, and the last proviso to the
second section, do not exempt from its operation liens cre-
ated by act of law ; and if they do, such lien must be made
available through the instrumentality of the District Court.
The third section certainly employs terms of very extensive
meaning, and the eleventh, and proviso to the second, uses lan-
guage sufficiently broad to embrace liens, created either by the
law, or act of the parties.
JUNE TERM, 1845. 199
Doremus, Suydam & Co. v. Walker.
In Ex parte Foster, 5 Law Reporter, 55, Mr. Justice Story,
says, that an attachment for the recovery of a debt under the
laws of Massachusetts, when levied, does not create such an ab-
solute lien, as is entitled to protection, and priority, under the bank-
rupt act of Congress, but gives a contingent lien, dependent upon
the creditor's obtaining a judgment. That if the debtor should
be decreed a bankrupt, and receive a discharge under the act,
that discharge could be pleaded as a good bar to the suit, in the
nature of a plea^wis darrein continuance ; and therefore under
such circumstances ought to prevent the plaintiff from obtaining
a priority of lien over the general creditors of the defendant, on
the property attached in his suit. "Consequently," says the
learned judge, " the creditor ought to be enjoined against farther
proceedings in his suit, except so far as the District Court should
allow, until it should be ascertained whether the debtor obtained
his discharge or not."
But after judgment obtained, it was conceded, that no injunc-
tion should be awarded. " The proceedings in bankruptcy after
the judgment, can have no effect whatsoever upon the judgment,
or upon the property attached in the suit." The creditor's right
is then made perfect, being no longer conditional, or contingent,
but has attached absolutely to the property ; and the Court has no
authority to deprive him, or by an injunction to obstruct the pro-
ceedings on his execution. If the bankrupt obtains his discharge
it would be no defence to the due execution and discharge of that
judgment, in the regular course of proceeding thereon ; for the
debtor, after judgment, has no day in Court to plead any bar or
defence. In the matter of Cook, 5 Law Reporter 443. See al-
so Martin v. Martin, 1 Ves. Rep. 211-3 ; Lea v. Parke, 1 Kean's
Rep. 724.]
In Kittredge v. Warren, 5 Law Reporter, 77, the Superior
Court of judicature of New Hampshire, in a well considered opin-
ion, determine that an attachment of property upon mesne pro-
cess bona fide made, before any act of bankruptcy, or petition by
the debtor, is a lien upon property, valid by the laws of the State;
and within the proviso of the second section of the bankrupt act
of 1841. That the means of the attachment being saved by the
proviso, the means of making it effectual are also saved: and the
certificate of discharge of the bankrupt cannot, when pleaded,
operate as an absolute bar to the further maintenance of the ac-
200 ALABAMA.
Doremus, Suydam & Co. v. Walker.
tion. If pleaded, the plaintiff may reply the existence of the at-
tachment, in which case a special judgment will be entered, and
execution issued against the property attached.
The District Court of Maine, in Smith, assignee, v. Gordon and
others, 6 Law Reporter, 313, recognize the law as laid down in
Foster and in Cook's cases, holding, that after a lien upon the re-
alty of the debtor, by a judgment, or upon his personal estate by
B. fieri facias, a decree in bankruptcy subsequently rendered can-
not defeat it. In the same case, it was decided, that although all
the property, &c. oi the bankrupt passed to the assignee, yet the
assignee is not bound in all cases to take possession of every
part of it. If it would be rather a burden than a benefit to the
estate, he may allow it to remain with the bankrupt, and if the
assignee elects to take it, he must do so in a reasonable time ; for
if he lies by for an unreasonable time, and allows third persons
in the prosecution of their rights to acquire a lien on the proper-
ty, he will be held by such delay to have made his election not
to take.
In Ex parte The City Bank of New Orleans, 3 How. U. S.
Rep. the following question arose ; What is the true nature and
extent of the jurisdiction of the District Court, sitting in bankrupt-
cy? It was admitted, " that independent of the Bankrupt act of
1841, the District Courts of the United States possess no equity
jurisdiction whatsoever ; for the previous legislation of Congress
conferred no such authority upon them. Whatever jurisdiction,
therefore, they now possess, is wholly derived from that act."
The Court say, there is no doubt that liens, mortgages and other
securities are within the purview of the last ^rouiso of the second
section, so far as they are valid by the State laws, and are not to
be annulled, destroyed or impaired, under the proceedings in
bankruptcy; but they are to be held of equal obligation and va-
lidity in the Courts of the United States, as they would be in the
State Courts. Further, " We entertain no doubt, that under the
provisions ofthe sixth section of the act, the District Court does
possess full jurisdiction to suspend or control such proceedings in .
the State Courts, not by acting on the Courts, over which it pos-
sesses no authority, but by acting upon the parties through the
instrumentality of an injunction, or other remedial proceedings in
equity, upon due application made by the assignee, a proper case
being laid before the Court requiring such interference." But it
JUNE TERM, 1845. 201
Doremus, Suydom & Co. v. Walker.
was said, that although the District Court docs not possess such
a jurisdiction, there is nothing in the act which requires that it
shall in all cases be absolutely exercised. " On the contrary,
where suits are pending in the State Courts, and there is nothing
in them which requires the equitable interference of the District
Court, to prevent any mischief or wrong to other creditors un-
der the bankruptcy, or any waste or misapplication of the assets,
the parties may well be permitted to proceed in such suits, and con-
summate them by proper decrees, and judgments; especially
where there is no suggestion of any fraud, or injustice, on the
part of the plaintiffs in those suits. The act itself contemplates,
that such suits may be prosecuted, and further proceedings had
in the State courts ; for the assignee is, by the third section, au-
thorized to sue for and defend the property vested in him under
the bankruptcy, « subject to the orders and directions of the Dis-
trict Court ;" " and all suits at law and in equity then pending, in
which such bankrupt is a party, may be prosecuted and defend-
ed by such assignee to its final conclusion, in the same way and
manner, and with the same effect as they might have been by the
bankrupt."
We have cited these decisions thus at length, because the pro-
visions of the bankrupt law have not, to any great extent, been
drawn in question before us, and every case that arises, being
most probably decisive of others, we deem it peculiarly proper
to proceed with great caution. The case before us is certainly
one of no difficulty. Here, upon motion of the defendant in exe-
cution, the levy of a ^eHjfacias, which operated as a lien before
he was declared a bankrupt, after a decree and certificate of dis-
charge, is quashed. The property, rights of property, &c. of a
bankrupt, we have seen, all passed to the assignee, on whom it
devolved to prosecute and defend all suits pending against him.
The application for the benefit of the bankrupt act, did not invest
the debtor with other rights as it respects the property, &c. yield-
ed up by him, than he previously possessed, and it would not be
allowable, at his instance, to vacate the levy of process, after his
bankruptcy was established, for a cause that would not have been
previously available.
While it has been held, that the assignee may, by an injunction,
or some other remedial proceeding in equity, arrest litigation, to
26
202 ALABAMA.
Doremus, Suydam & Co. v. Walker.
which the bankrupt is a party in the State Courts, it is conceded
that there is nothing so potent in a petition in bankruptcy, and the
judicial action in such suit, as to inhibit the State tribunals from
entertaining a suit, to which the bankrupt or his assignee is a par-
ty. But until the extraordinary power, which it is said the act of
Congress has conferred upon the assignee and the District Court,
is put in requisition, there is nothing to impede the regular course
of procedure in the State Courts.
We have seen that the lien of a judgment is recognized as ope-
rative against the assignee, as it respects the real property of the
bankrupt, and that the personalty will be bound by the executioa.
In either case the lien is preserved according to the rights of the
creditor at the time the bankruptcy is established. If the lien is
then absolute, it completely overrides the decree, and the credi-
tor will be let in, to the enjoyment of its fruits. This being the
case, neither the bankrupt or his assignee could vacate the pro-
ceedings under \he fieri facias by moving to quash the levy, un-
less such a motion was founded upon something more than is
shown by the record.
It does not even appear that the bankrupt's schedule embraced
the property levied on, or that the assignee, as such, asserted any
claim to it, and (if necessary) we should perhaps infer from the re-
cord, that the schedule did not include it, as the claim had been
regularly interposed, before the petifion in bankruptcy, of the de-
fendant, was filed. But be this as it may, it is sufficiently shown,
that the mere fact of the defendant being a certificated bankrupt,
furnished no warrant for quashing the levy. The judgment of
the Circuit Court, rendered on the defendant's motion, is conse-
quently reversed, and the cause remanded.
JUNE TERM, 1845.
Blackman v. Smith.
BLACKMAN v. SMITH.
1. One who is summoned as transferee of the debt admitted to be due by
the garnishee answering in the suit, will not be permitted to take advan-
tage of errors in the proceedings, either against the original defendant or
against the garnishee.
2. It is of no importance, that two or more persons are summoned by the
same notice to appear and contest the plaintiiF's right to condemn a de-
mand which the garnishee suggests has been transferred to another, or to
others ; but if the objection was valid, it should be raised before submit-
ting to go to trial.
3. After a judgment against a transferee, an issue will be presumed, if one
was necessary.
4. When the transferee contests the plaintiff's right to condemn the debt,
he is subject to costs, if the plaintiff prevails.
Writ of Error to the County Court of Russell.
Judgment was obtained at the spring term, 1842, by Smith, in
a suit in Russell Circuit Court, against one Hunt, for ^20?. On
this judgment, Smith sued out garnishee process against one
Shearman, as a debtor of Hunt, Shearman appeared and an-
swered, that at the time of the service of the garnishment,
he was indebted to Hunt by two promissory notes, one for
$250, due the 1st January, 1843, and a credit upon it of $22 75,
which note is dated 31st May, 1842, but as to which note
he had, the day of making his answer, been notified by Burwell
Blackman, that the same had been transferred to him previous
to the time of serving said garnishment. The other, for $210
payable to , on the 1st January, 1844, as to which, one
Samuel Jones, previous to the service of the garnishment, notified
him that the last mentioned note had been transferred to the said
Jones. Also, that at the time of service. Hunt was indebted to him,
the said garnishee, $120.
On this answer, the Court made an order, in which the answer
of the garnishee is said to have been, that he was indebted to
Hunt, without setting out the amount or manner of indebtedness,
but stating, that since the service of the garnishment, he had
204 ALABAMA.
Blackman v. Smith.
been notified of the transfer of said notes, (none being previously
named in the entry, and there being no reference to the answer
made by the garnishee,) by Burwcll Blackman and Samuel Jones,
of the transfer of said notes, and that they held the same, which
are payable to said Hunt: Whereupon the said plaintiff, wishing
to contest the validity of said transfers, it was considered, that
the clerk issue process to the said Burwell Blackman, and Sam-
uel Jones, requiring them to come forward and contest the va-
lidity of the said transfers, as the statute directs.
On this order, a writ was issued to the sheriff, reciting the pre-
vious proceedings, and requiring him to make known to Bur-
well Blackman, and Samuel Jones, that they be and appear at
the next term of the Circuit Court, to contest the validity of the
said transfers, with the said plaintiff.
This was returned executed, on both the parties, and an issue
was tried at the spring term, 1844, as between Smith and Black-
man, in which the jury returned a verdict, that the note in con-
troversy was the property of the defendant. Hunt, on which a
judgment was given against Blackman for costs. Jones, the
other garnishee, not contesting the validity of the transfer of the
note for $210, payable as stated in this entry, toM. C. Goldsmith,
it was considered, that Smith should recover against Shearman,
the garnishee, the sum of $251 33, together with the costs in this
behalf expended, it appearing to the Court that there is an excess
in his hands, after satisfying the plaintiff's demand.
The writ of error is sued out by Blackman, but it names the
garnishee, as well as the other transferree, as defendants in the
suit of Smith.
It is here assigned as error —
1. That the notice to the transferees is joint, when the answer
of the garnishee shows no joint interest.
2. The notice contains no description of the notes to be con-
tested, in order to put the transferrees on their defence.
3. No issue was tendered to the transferees.
4. The finding of the jury is vague and uncertain.
5. The judgment condemns a note not placed in controversy,
by the answer of the garnishee, or by the notice to the trans-
ferees.
6. The costs are rendered, first as against the transferee, and
second against the garnishee.
JUNE TERM, 1845. 205
Blackman v. Smith.
7. The amount of the judgment is for 864 50 more than the
plaintiff's demand, as shown by the record.
8. In rendering judgment.
S. Heydenfeldt, for the plaintiff in error.
No counsel for the defendant.
GOLDTHWAITE, J.— 1. The plaintiff here,in theCourt below
was not a party to the cause in the first instance, but he is called
in at the instance of the garnishee, to assert or relinquish his
claim to the debt, which otherwise is admitted by the garnishee
to be subject to satisfy the demand of the creditor, at whose mo-
tion the garnishee was summoned. In this relation to the suit, he
can only be heard to complain of errors which affect himself.
The original debtor does not complain of the proceedings against
him, and the garnishee is also silent, and therefore, so far as the
transferee is concerned, must be presumed to have waived any
errors or irregularities which may be in the record. [Stebbins
V. Fitch, 1 Stewart, 180 ; Thompson v. Allen, 4 S. & P. 184.]
2. One of the supposed irregularities which affect this party, is,
that the notice by which he is called into Court, is a joint one,
that is, that another transferee is named in it, and was summon-
ed at the same time. We do not consider this objection as
of any importance ; the object of the notice, in this mode of pro-
ceeding, is, to advise the supposed transferee, that the plaintiff in-
tends to dispute his right to the debt, supposed by the garnishee
to be transferred. If he disclaims all interest in the debt sought
to be subjected, he is discharged, as a matter of course, and with-
out costs ; but if he, as supposed by the garnishee, asserts any
right, that is determined upon the necessary allegations, if any
are interposed, and in the event of an issue, that is determined by
a jury. It is obvious, that if the party objects to the sufficiency
of the notice, it must be done previous to the trial of an issue ;
therefore, if the notice in the present case was defective, it would
not now avail.
3. The objection, that no issue was tendered to the transferee,
comes within the often repeated decisions of this Court, that one
will be presumed in all cases, after verdict, as will all the plead-
ings necessary to support it, when there is no exception on the
record. [Wheeler v. BuUard, 6 Porter, 352.]
20G ALABAMA.
Tuscumbia, Courtland and Decatur Rail Road Co. et aL v. Rhodes.
4. All the other assignments of error except the one respect-
ing the judgment for costs, falls within the principles we have al-
ready ascertained, and in this particular, there is no error. As
soon as the party asserted a claim to the debt, as against the sup-
posed right of the plaintiff to condemn it, the cause assumed the
form of a contested suit, as between these parties, and costs fol-
lowed as of course, upon the judgment of the Court, ascertaining
that the right to the debt was in the judgment debtor. [Stebbins
V. Fitch, 1 Stewart, 180.]
There is no error in the record available to the present plaintiff.
Judgment affirmed.
TUSCUMBIA, COURTLAND AND DECATUR RAIL
ROAD COMPANY, ET AL. v. RHODES.
1. R. being indebted, by an open account, to an incorporated Rail Road
Company, the latter assigned the debt to one S., to whom the Company
was largely indebted, and by whom suit was brought against R., in the
name of the Company, and a judgment obtained thereon. Pending the
suit against him, R. paid for the Company a large debt, as its surety, which
debt existed previous to the assignment, by the Company, to S. Held —
that as the Company was insolvent, at the time of the assignment to S., of
the debt of R., the latter could set off in equity, the money he had paid for
the Company, against the judgment obtained by S.
Error to the Chancery Court at Tuscaloosa.
The bill was filed by the defendant in error. The material
allegations, are, that the Rail Road Company was incorporated
by an act of the Legislature, in 1832, and subsequently amended.
That in the year 1836, the Board of Directors represented, that
the Company could not sustain its credit, and meet its engagements
from the proceeds of the subscriptions to the then capital stock,
and that at an informal meeting of the Board, on the 27th June,
183G, the folio whig preamble and resolutions were adopted :
JUNE TERM, 1845. 20T
Tuscumbia, Courtland and Decatur Rail Road Co. etaLv. Rhodes.
« Whereas, it has been ascertained, from the report of the trea-
surer of this Company, that the amount of stock heretofore sub-
scribed, and which has been paid by the subscribers, is insuffi-
cient for the purpose of paying for the cost of the road, and other
improvements appertaining thereto. Be it therefore resolved,
that the books of the Company be opened, for the purpose of dis-
posing of stock, to the amount of one hundred and fifty thousand
dollars, including the stock heretofore forfeited to the Company,
and that subscribers for such stock be required to pay the same
in three equal instalments, by giving accepted bills of exchange,
with at least one good indorser ; said bills to include interest, at
the rate of six per cent, to be draw^n payable at five, eleven,
and seventeen months after the first day of August next, and that
upon the delivery of said bills, to the treasurer of the said Compa-
ny, certificates of stock, as for full payment, shall be issued in fa-
vor of said subscribers ; and further, that the subscribers, or hold-
ers of said stock, shall be entitled to draw dividends on the same,
for the year commencing on the first day of August next,
« Be it further Resolved, That the books shall be opened, under
the direction and superintend ance of the treasurer, and secretary
of the Company, who shall attest the said subscription."
At the time this resolution was adopted, complainant was ab-
sent from the State, and that his name was subscribed without his
authority, for seventy-five shares, and upon his return, and after
the books were closed, he signed his name to the list of subscri-
bers for seventy-five shares. But complainant charges, that the
resolutions, and subscriptions, under them, were in contravention
of the charter.
That Benjamin Sherrod was the President, and one David
Deshler the treasurer ; that they possessed the confidence of the
stockholders, and managed the affairs of the Company. That in
the year 1836, the treasurer of the Company represented to the
Directors, and some of the stockholders, that the Company requir-
ed the sum of fifty thousand dollars, to relieve it fi-om debt, and
that if that sum could be procured, the Company could continue
its operations with advantage, and that the said Benjamin Sher-
rod had oflTered to lend that sum, upon bond, executed by respec-
table persons, and urged complainant to become one of the obli-
gors in such bond, and make in this way the loan aforesaid. That
complainant consented thereto, and together with eleven others.
»
S08 ALABAMA.
Tuscumbia, Courtland and Decatur Rail Road Co. et al. v. Rhodes.
executed a joint and several bond, in the sum of fifty thousand
dollars to the said Sherrod; he having advanced to the Company
that sum of money.
At the time of the execution of the bond, to show for whose
use and benefit it was made, and for the purpose of guaranteeing
the payment of the bond, and indemnifying the makers thereof,
the Company passed the following resolution:
"At a meeting of the Board of Directors of the Tuscumbia,
Courtland and Decatur Rail Road Co., on the 27th June, 1836,
the following preamble and resolutions were adopted:
"Whereas, Benjamin Sherrod, has this day proposed a loan of
fifty thousand dollars to this Company, for the term of five years,
from the first day of January next, at eight per cent, per annum,
interest to be paid annually ; and whereas, the Directory have
accepted the proposition, and have this day executed their joint
and several bond, to the said Benjamin Sherrod, to secure the
payment of said loan : now it is hereby declared, that said bond,
though executed by the following persons in their individu-
al capacity, yet the money borrowed, is for the benefit of said
Company, and that said Company in its corporate capacity, is
hereby made liable for the same, and a pledge is hereby given
by the Company, that it will protect the individual makers of said
bond, against the payment of the same." The bond is signed by
twelve persons, including the complainant.
That in the early part of the year 1838, the Company became
insolvent, and so continue to this time. That after the insolvency
of the said Company, it transferred to Benjamin Sherrod, to in-
demnify him for certain claims, which he pretends to have against
the Company, all the property, choses in action, and assets of the
Company, and among other things, the said subscription list for
additional stock, subscribed by complainant, and also other
claims against him, amounting to $14,918 29.
That on the 4th Septembei", 1840, the said Sherrod, in the
name of the Compan)% brought suit against complainant, to re-
cover said amount. That on the trial of the cause, complainant
proved that all the obligors to the bond for $50,000, except three,
had become insolvent, and that about the 1st January, 1841, com-
plainant had been compelled to pay the said Sherrod, as his pro-
portionable share, the sum of twenty-six thousand dollars, and
upwards. But the Court held, that it was no defence to that ac-
JUNE TERM, 1845. 209
Tuscumbia, Courtland and Decatur Rail Road Co. et al. v. Rhodes.
tion, and that the complainant could only have relief in equity,
and a verdict was found, and judgment rendered against him, for
$14,918 29. And in addition to the sum he has paid on the
bond for the Company to Sherrod, he charges that the Company
are largely indebted to him, and is wholly insolvent, and prays
that the money paid by him for the Company, be set off against
the judgment obtained for the use of Sherrod.
Sherrod, in his answer, admits the assignment, to him by the
Company of claims due it,amounting in the whole to $29,118 29,
including the claim against complainant, which was done to in-
demnify him in part, for the sum of $196,196 14 paid by him, for
the Company, to the Decatur Bank, besides the sum of $33,714 90,
also paid by him for the Company, and is liable besides, for other
large amounts. He insists, that he did not look to the Company
for the loan of $50,000, but lent it on the faith of the parties to
the bond, and that the entry on the minutes of the board, was an
attempt on their part, to indemnify themselves. He admits the
insolvency of the Company, and denies all fraud.
The corporation also answered the bill, setting forth the assign-
ment to Sherrod, made by order of the Board of Directors, and
together with the answer of Sherrod, containing many state-
ments, admissions, and allegations not necessary to be stated.
Much testimony was taken, but as no material fact stated in
the bill is now controverted, it is not necessary to state it.
The Chancellor, at the hearing, considering that there was a
mutual credit, between the corporation and the complabant, as
well as upon the grounds of the insolvency of the corporation,
decreed that the money paid by him, to Sherrod, on the bond, as
the surety of the corporation, should be set off in equity, against
the judgment obtained by it at law, for the use of Sherrod.
From this decree, a writ of error is prosecuted by the de-
fendants, and assign for error the decree made by the Chan-
cellor.
Peck & Clark, for plaintiff in error. The principles upon
which Courts of Equity proceed, in cases like the present, may
be thus stated : 1. Before the statute of set off at law, and that of
mutual debts and credits in bankruptcy. Courts of Equity were
in possession of the doctrine of set off, upon principles of natural
27
210 ALABAMA.
Tuscumbia, Courtland and Decatur Rail Road Co. et al. v. Rhodes.
equity. [2 Story's Com. 656, § 1432 ; 4 Burr. 2220 ; 2 Paige,
581.]
2. When debts are mutual, though independent, yet, if there be
a mutual credit between the pdiVties, founded at the time upon the
existence of some debt, due by the crediting party, equity will
grant relief. By mutual credit, we are to understand a know-
ledge on both sides, of an existing debt, due to one party, and a
credit given by the other, founded on, and trusting to such debt,
as a means of payment. [Story's Com. § 1435; 7 Porter, 554.]
3. Courts of Equity follow the same general rules, as Courts
of law, as to sets off. [3 Johnson Chan. 359.] Courts of Equi-
ty will set off distinct debts, where there has been a mutual cre-
dit, to avoid circuity of suits. [5 Mason, 212 ; 1 Edwards, 404.]
So also where there has been an express, or implied agreement of
stoppage. [2 Edwards, 76.]
To apply these principles ; The debt transfeiTed by the corpo-
ration to Sherrod, was one which from its very nature, and the
object of its creation precluded the idea of a mutual credit, be-
tween the corporation and Rhodes. Nor did the corporation
owe him any thing, when the debt was created. Nor was the
corporation indebted to him, when the assignment was made ;
the transfer therefore to Sherrod, was not clogged by any exist-
ing equity.
Huntington, Cochran and Hopkins, contra, contended, that
the contract upon which the suit at law was brought, was void,
because not authorized by the charter, and also because it was
the exercise of banking powers. [Angel & Ames on Cor. 66 ;
2 Cowen, 664 ; ib. 678 ; 3 B. & A. 1 ; 5 Taunton, 792 ; 4 Ala.
Rep. 558.]
That as the right of the complainant to the off set, did not arise
until after the suit brought against him, it was not a good set off
at law, and it was therefore necessary to resort to Chancery. [3
Ala. Rep. 256.]
They also maintained, that to constitute a mutual credit, it was
not necessary that one should be a consequence of the other, or
that the credit should be given at the same time; like mutual debts,
they might arise at different times. [1 P. Wms. 326 ; 1 Atk.
228 ; Hop. 583 ; 2 Paige, 581 ; 5 Vesey, 108; 3 ib. 248 ; Bab.
on Set Off, 57, 72 ; 5 Paige, 592 ; 4 Term. 123.]
JUNE TERM, 1845. 211
Tuscumbia, Courtlaiid and Decatur Rail Road Co. et al. v. Rhodes.
The pledge of the assetts of the Company, made it one of mu-
tual credit.
The insolvency of one of the parties is a well established ground
of equitable jurisdiction, to allow a set off. [6 Dana, 38, 305 ; 4
Bibb, 356; 1 Monroe, 194; 4 Conn. 302; 2 Hammond Ohio,
432.]
That the assignment being, of an open account, was a mere
revocable power to collect the debts, or, in other words, a mere
equitable right to the debts, which is countervailed by the oppos-
ing equity of Rhodes. [1 Brock. 456; 1 W. C. C. R. 178; 7
Johns. 377; 10 Wend. 85.]
They also cited, 2 Eq. C. Ab. 10; 2 Vernon, 117; 1 Litt.
153 ; Litt. S. C. 325; Poth. on Ob. 590 ; 10 I. B. Moore, 198; 3
Vesey, 248 ; 4 Term, 123, 212 ; 2 Murphy, 30.
ORMOND, J.— The Tuscumbia, Courtland and Decatur
Rail Road Company, having brought a suit at law for the use of
Benjamin Sherrod, against H. W. Rhodes, the defendant in error,
and recovered a judgment against him, he has filed this bill to
obtain the benefit of a set off', for money paid for the Company,
after the suit was commenced.
Whatever may be the merits of the demand here attempted to
be set off, it is very clear it cannot be set off* at law, as it was not
a subsisting demand when the action was brought, [Cox v. Coop-
er, 3 Ala. Rep. 256 ;] the question therefore is, whether this is a
good set off* in equity.
The true nature and extent of the doctrine of set off*, in a Court
of Equity, is one of some difficulty, complicated as it is, in the de-
cisions made upon the subject, with the statutes of set off* at law,
where there are mutual debts, and of the statutes of bankruptcy,
authorizing a set off* where there are mutual credits. Mr. Justice
Story has discussed this question in his Commentaries on Equity,
2d vol. 656, and more at large in the cases of Greene v. Darling,
5 Mason, 201, and How v. Shephard, 2 Sumner, 409. Accord-
ing to his opinion, equity follows the law in regard to set off", un-
less there is some intervening natural equity, going beyond the
statutes of set off*. That such a natural equity arises, where there
are mutual credits between the parties, or where there is an ex-
isting debt, on one side, which constitutes the ground of a credit
on the other, or, where there is an express or implied agrement.
212 ALABAMA.
Tuscumbia, Coiirtland and Decatur Rail Road Co. et al. v. Rhodes.
that the mutual debts shall be a satisfaction pro tanto between
the parties.
To the same effect, is the opinion of Chancellor Kent, in Dun-
can V. Lyon, 3 Johns. C. 358, and of this Court in French v.
Gai'ner, 7 Porter, 549. In ex parte Stephens, 1 1 Vesey, 27, Lord
Eldon says. Courts of Equity were in possession of the doctrine
of set off, long before the law interfered ; though where the Court
does not find a natural equity, going beyond the statute, the rule
is the same in equity as at law. See also. Mead v. Merritt, 2
Paige, 402 ; Burkley v. Munday, 5 Madd. R. 297 ; Robbins v.
Holly, 1 Munroe, 194 ; Green v. Farmer, 2 Burr. 1214, and Ex
parte Harrison, 12 Vesey, 346, and to these might be added a
multitude of authorities, English and American, establishing the
same general principle.
What then is the natural equity, or to speak with more pre-
cision, what are the peculiar circumstances, attending this case,
which would authorize this Court, to set off the one demand
against the other.
The facts are, that Rhodes, the complainant, became a sub-
scriber with others, to the Rail Road Company, for seventy-five
shares of its stock, at one hundred dollars a share, which was to
be paid for, in accepted and indorsed bills of exchange, payable
in five, eleven, and seventeen months, interest included. The
object of the subscription, was to enable the Company to raise
funds for the payment of its debts. About the same time, Sher-
rod made a loan to the Company of fifty thousand dollars, for
five years, to secure the payment of which, Rhodes, and eleven
others, executed a bond to Sherrod for that amount, payable also
in five years ; the Company, by an order on its minutes, pledging
itself in its corporate capacity, for the payment of the debt. Sub-
sequently, the Company became insolvent, and being indebted
to Sherrod, in the sum of nearly two hundred thousand dollars,
money paid by him for it, assigned to him some of its effects,
and among other claims, the one against Rhodes for his sub
scription, which he had not complied with, by executing
bills of exchange; together with other claims against him.
Upon this demand against Rhodes, Sherrod brought suit in the
name of the Company, for his use, and subsequently Rhodes
paid to Sherrod. upon the bond for fifty thousand dollars, twenty-
six thousand dollars. A judgment was obtained by the Compa-
JUNE TERM, 1845. 213
Tuscumbia, Courtland and Decatur Rail Road Co. A al. v. Rhodes.
ny, for the use of Sherrod, against Rhodes, and he now seeks to
set off in equity, the money thus paid against the judgment.
It is not pretended, that there was in this case any express
agreement to set off, or extinguish the claim of the Company
against Rhodes, for his subscription, by the obligation entered in-
to by the latter, to guaranty to Sherrod, the payment of the loan
of fifty thousand dollars. Nor is there the slightest foundation
for supposing, that there was an implied agreement, having the
same object in view. Before such an implication could be made,
there must have been a debt due, or to fall due, which might be
presumed to be looked to by the parties, as the fund out of which
the debt attempted to be enforced, was intended to be satisfied.
So far is that from being the case here, that the Company debt was
not to fall due until several years after the bills would have been
paid. Besides, such a supposition would have been destructive to the
avowed object of the parties, which was to raise money for the
pressing exigencies of the Company, whilst this theory of the in-
tentions of the parties, supposes, that the bills were not to be
drawn, until the fact was ascertained, whether Rhodes would
become liable on his suretyship for the Company. As it is cer-
tain there was no express agreement to that effect, it is equally
as clear that none can be implied from the circumstances.
It is however argued, that although these transactions are not
strictly mutual debts, they are mutual credits, to create which, it
is supposed, it is not necessary that the debts should fall due at
the same time. Waiving for the present, the inquiry, whether
there was any debt due from the Company to Rhodes, before
the actual payment of the money by him, we proceed to inquire,
whether the term mutual credit has this meaning.
The statute of 2d Geo. 2d, which first allowed sets off at law,
as well as our statute on the same subject, only authorizes " mu-
tual debts" to be set off against each other. The term mutual
credits, was first introduced in the bankrupt laws of England, as
authorizing a set off in bankruptcy, which, in the English books,
is said to be a term of larger import than mutual debts. Thus in
Ex parte Prescott, 1 Atk. 230, it was held that a debt due the
bankrupt, payable at a future day, might be set off against a debt
then due to him, from the bankrupt ; his Lordship holding, that
although not a mutual debt, it was a mutual credit, within the
meaning of the bankrupt law. So where a bill of exchange, ac-
214 ALABAMA.
Tuscumbia, Courtland and Decatur Rail Road Co. et al. v. Rhodes.
cepted by A, got into the hands of B, it was held in accordance
with the same principle, that there was a mutual credit between
A and B, although the former did not know the bill was in the
hands of the latter. [Hankey v. Smith, 3 Term, 507, in note.]
So also, an accommodation acceptor to a bill, which did not
fall due until after the bankruptcy, and was then outstanding in
the hands of third persons, and paid by him after the commission
issued, was held entitled to a set off, under the w^ords mutual cre-
dit. [Smith V. Hodson, 4 Term, 211.] To the same effect
are Ex parte Wagstaff, 13 Ves. 65, and Arbouin v. Trottoire, 1
Holt N. P. C. 408.
Now, in all these cases, it is to be observed, there was a debt
due before the bankruptcy, though not payable until afterwards,
and the whole effect of the bankrupt law, in respect to the ques-
tion we are now discussing, seems to be, to dispense with those
circumstances, which would be necessary to give the Court of
Chancery jurisdiction in other cases. It must, however, to be
the subject of a set off, be a deht actually, and unconditionally
due, although it be not payable, until after the debt is due, against
which it is proposed to set it off. In Ex parte Hale, 3 Vesey,
304, the acceptor of a bill exchange, having become a bankrupt,
the indorser was compelled to take it up, and being indebted to
the bankrupt ninety pounds, prayed that he might be at liberty to
set oflf that sum, against the amount of the bill which he had
been compelled to pay. The Lord Chancellor said, « There was
no mutual credit. There was a debt created upon the estate,
and due at the time of the bankruptcy, but that debt was not
due to you, therefore in that respect the set off fails." To the
same effect are Chance v. Isaacs and Smith, 5 Paige, 592.
According then, to this extended meaning of the term mutual
credit, under the bankrupt law, the set off cannot be made in this
case, as with no propriety can it be said, that there was any debt
due from the Company to Rhodes, at the time this assignment
was made to Sherrod. It was at most a contingent liability, to
pay a debt for the Company, which might never be enforced
against him, and certainly not stronger, than that of the case of
the indorser of a bill in the cases cited from 3 Vesey, 304, and 5
Paige, 592. In the language of the Chancellor, in the latter case,
.at the time of the assignment, there were neither mutual debts,
JUNE TERM, 1845. 21&
Tuscumbia, Oourtland and Decatur Rail Road Co. etal.v. Rhodes.
nor mutual credits, which by the efflux of time, would necessa-
rily ripen into mutual debts, between Rhodes and the Company.
It is however urged, that the insolvency of the Company,
would give to Rhodes the right to set off in Chancery, the debt
due from the Company to him, and that Sherrod can be in no bet-
ter condition. Conceding, as such appears to be the weight of
authority, that he would have this right against the Company,
has he the same right against the assignee of the Company?
By the assignment of the Company for a valuable and full
consideration, Sherrod became invested with all the rights the
Company then had in the thing transferred, and the judgment has
ascertained, that this was a just claim, at that time, to recover the
debt. Can this claim be divested, by any subsequent equity,
arising between the assignor and the debtor, not coneected with
the debt so assigned ? In our opinion it cannot.
In Smith v. Pettus, 1 S. & P. 107, the Court declared that an
equity inherent in the contract, travelled with the debt, into the
hands of the assignee, and would be enforced against him. In
Green v. Darling, 5 Mason, 214, this precise point arose, and the
Court say, « Where a chose in action is assigned, it may be ad-
mitted, that the assignee take it subject to all the equities existing
between the original parties, as to that very chose in action, so
assigned. But that is very different, from admitting that he takes
subject to to all equities subsisting between the parties, as to other
debts, or transactions. There is a wide distinction between the •
eases. An assignment of a chose in action, conveys merely the
rights which the assignor then possesses to that thing. But such
an assignment, does not necessarily draw after it all other equi-
ties of an independent nature."
The equity in this case, between Rhodes and the Rail Road
Company, has no connection whatever, with the debt transferred
by the latter to Sherrod. They are totally distinct and uncon-
nected. By the payment of the surety debt, Rhodes merely be-
came the creditor of the Company in general, and although, in
equity, the .Company, being insolvent, would not have been per-
mitted to enforce their claim against him, Sherrod is not affected
by it, because his rights are to be admeasured, by the condition
of the debt at the time of the transfer. If Rhodes could not have
defended himself against the payment of it then, he cannot now,
unless he could show an equity inherent m the thing assigned, in
216 ALABAMA.
Tuscumbia, Courtland and Decatur Rail Road Co. et al. v. Rhodes.
which event he might enforce it against the assignee, although it
arose subsequent to the transfer.
The objection that the subscription for the stock was void, be-
cause contrary to the charter, cannot be raised in this Court ; all
such inquiries are foreclosed by the judgment and release of er-
rors at law.
It is further urged, that the debt so assigned by the Company,
was pledged by the Company for the payment of the loan of fifty
thousand dollars. It is as follows ; " To secure the payment of
said loan, it is hereby declared, that the said bond, though exe-
cuted by the following persons in their individual capacity, yet
the money is borrowed for the benefit of said Company, and that
said Company in its corporate capacity, is hereby made liable for
the same, and a pledge is hereby given by the Company, that it
will protect the individual makers of said bond, against the pay-
ment of the same." If it were conceded, that this was a pledge
of the assetts of the Company, and not a mere guaranty, it would
avail nothing, as it is utterly inconceivable that the Company
should pledge the bills of exchange, for the term of five years,
when the whole design of the subscription, and the loan, was to
raise money, to meet the demands, then pressing on the Compa-
ny. It is true, the bills of exchange were never executed, but
in ascertaining the meaning of this pledge, we must look to the
state of things then existing, and it was certainly expected by
the Company, that the bills of exchange would be executed by
the first of August, ensuing the arrangement, otherwise the whole
proceeding was solemn trifling. Whatever then be the mean-
ing of this pledge, whether a mere guaranty, or a pledge of its
existing and future resources, it could not have been the inten-
tion to pledge the bills of exchange, or if they were not executed,
the amount of the subscription for the stock, as that would have
defeated the very purpose of the arrangement. We cannot un-
der these circumstances, infer such an intention from the employ-
ment of, to say the most of it, an ambiguous phrase.
It results from the conclusions here attained, that the Chancel-
lor erred in his decree perpetuating the injunction to the judg-
ment at law, and it is therefore reversed. And this Court, pro-
ceeding to render such a decree as the Chancellor should have
rendered, hereby order, adjudge and decree, that the bill be dis-
missed, at the cost of the complainant.
JUNE TERM, 1845. 217
Tuscumbia, Courtland and Decatur Rail Road Co. et al. v. Rhodes.
On the petition of the plaintiffs in error, the cause was re-argu-
ed by Hopkins and Huntington, for the plaintiff in error.
Peck & Clark, contra. ^^.
GOLDTHWAITE, J.— The matters of doubt in this cause,
which principally induced us to allow a re-argument, are those
which arise out of the insolvency of the Rail Road Company,
when it made the assignment to Sherrod, of the debt due from
Rhodes, and from the fact that the debt which he now seeks to
stop, was not then due. To these we shall chiefly address our
examination.
The doctrine of set off, or the compensation of one debt by an-
other, seems to have been entirely unknown to the common law,
unless the setting off judgments of the same Court, against each
other, may be construed as asserting some original jurisdiction
over this subject. Its defect in this particular, must have been
perceived, when commercial transactions became in anywise
general ; especially when insolvency or intestacy happened and
there were cross demands existing. We may therefore expect
to find the development of the equitable doctrine, and its applica-
tion, ameng the earliest reported Chancery cases. We find the
English Chancery Judges frequently asserting the doctrine of
stoppage, which was known to the Equity Courts, anterior to
the statutes of set off and bankruptcy : but what this stoppage
was, or what equitable set off now is, does not seem to be finy
where very clearly explained, and it will best appear by d. col-
lection of some of the cases.
The first is Peters v. Soame, 2 Vern. 428, decided in 1701.
There the bill was by the assignees of a bond, against the obli-
gor, and the assignees in bankruptcy of the assignor, to compel
payment to the assignees. The obligor insisted, that the assignor
of the bond owed him a sum of money, for goods sold, and claim-
ed to retain it. The assignees in bankruptcy, that they, as re-
presentatives of creditors, had an equal equity with the assignees
of the bond, (that having been assigned as an indemnity merely,)
and having the legal title also, their claim was superior. It was
held, that the assignees of the bond had the better equity, as
against the assignees in bankruptcy, but the stoppage under such
circumstances, by the obligor, was considered a good equity. »
28 ^ '"
218 ALABAMA.
Tuscumbia, Courtland and Decatur Rail Road Co. et al. v. Rhodes.
Hawkins v. Freeman, 2 Eq. Ca. 10 c. 10, was decided some
years afterwards ; at least such is the inference, as later Judges
say it was by Lord Macclesfield. There the complainant and
the defendant's intestate, were both tradesmen, and mutually sold
each other goods. The complainants were indebted £30, to the
intestate, and he to them in £100, but dying intestate and insol-
vent, the defendants, as his principal creditors, took out adminis-
tration, sued the complainants at law, and obtained a judgment.
The bill was filed to have the debt of £30 set off, and it was so
decreed, as well as that the defendants should pay the balance,
in due course of administration.
It will be seen that the first of these two cases may have been
decided on the broad ground, that when the complainant sought
relief, upon an equitable title, it lot in a cross debt as a defence.
The second rests alone on the fact of insolvency, unless it is also
to be considered as sustaining the jurisdiction, in any case of cross
demands. Both were made previous to any statute of set off,
and before the general statutes of bankruptcy, though the tempo-
rary bankrupt act of 4 Ann, c. 17, was then in force, and in nei-
ther is it pretended, that the ground of jurisdiction rested on any
other principle than natural equity.
Dowman v. Matthews, Free, in Cfian. 580, was decided in 1721,
the same year with the passage of the general bankrupt act of
7 Geo. 1 ; and its facts are very similar to those of Hawkins v.
Freeman. Lord Macclesfield held the stoppage to be a good equity,
though generally, he said, it was no payment, and there were
cases in which it could not be done ; as a man might not stop his
rent for money due himself, nor that due upon a bond toward sat-
isfaction of a simple contract debt. Insolvency was not spoken
of in terms, but, he said, in cases oithis nature, the Court would
seize on the smallest circumstances to imply a mutual credit ; as
the carrying, or dealings for years, or if no interest had been paid.
It was said at the bar, that before the passage of the then recent
act 7 Geo. 1, the debtors of bankrupts were without remedy; but
the Lord Chancellor observed, the statute was passed because it
was reasonable to have been so before. The remark and the
answer evidently referred to suits at law, for Peters v. Soame
had, twenty years before, decided that an ordinary debtor could
have stoppage in equity, and the same was held in 1716, by Lord
Cowper, in Lanesborough v. Jones, 1 P. Wms. 325. In that
JUNE TERM, 1845. 219
Tuscumbia, Courtland and Decatur Rail Road Co. etal. v. Rhodes.
case, the assignees of the insolvent were seeking to foreclose a
mortgage, and the mortgagor was allowed to stop a legal debt
due from the insolvent. The assignees asserted, they took the
entire estate, and that the debtor was compelled to prove his debt,
under the commission, and take a pro rata dividend, but it was
determined, on principles of natural equity, that the debtor was
entitled to stop his debt against the bankrupt, and that his assignees
only stand in his condition.
In JefF. V. Wood, 2 P. Wms. 128, decided ten years after the
first general bankrupt act, the Master of the Rolls said, "it may
be a doubt, whether an insolvent person may recover against his
debtor, to whom at the same time he owes a greater sum ; though
I own it is against conscience, A should be demanding a debt of
B, to whom he is indebted a larger sum, and would avoid paying
it." He then referred to the cases noticed by us as establishing
that the least evidence of an agreement for stoppage, would let in
the set off.
In Whitaker v. Rush, Amb. 407, ihe Master of the Rolls, for
the first time, asserted, that the doctrine of set off, for a long peri-
od did not prevail in England, and was first introduced with the
statute 5 Geo. 2, and Lord Hardwicke, in Ex parte Prescott, 1
Atk. 230, says, that before its passage, a debtor of the bankrupt
being also a creditor, was obliged to prove his debt under the
commission, and receive a dividend only, and .that statute was
passed to remedy this great inconvenience. These rcmarlts must
be referred to legal suits and proceedings, by the commissioners,
for neither of these Judges could have been ignorant of the de-
cisions made on hills in equity, by their predecessors, which cer-
tainly held a different language. It will be borne in mind, that
the question before him arose on a petition in bankruptcy, and
was, whether the debtor of a bankrupt also a creditor, could re-
tain his debt, which was not then due. No cases being cited
on either side. Lord Hardwick said, he must make a precedent,
and held, the equity of the statute extended to that case, as it
gave the creditor whose debt was not due, the right to prove it,
and secure a dividend under the commission.
The equitable right of retaining was carried further, by the
same Judge, for in Ex parte Deeze, 1 Atk. 228, held, that goods
in the hands of a debtor of the bankrupt, could be retained until a
general debt was paid, though if there had been no bankruptcy.
220 ALABAMA.
Tuscumbia, Courtland and Decatur Rail Road Co, et al. v. Rhodes.
the debt could not have been set off against an action at law, for
the goods, the holder having no lien on them, or having a lien on
them for a portion only of his debt. At the time of these decis-
ions, and for many years afterwards, it was the settled law, in
the Courts of common law, that an accommodation acceptor, not
having paid the bill when the bankruptcy occurred, though he
afterwards did so, could not prove its amount under the commis-
sion. [Chilton V. WhifTer, 3 Wils. 13; Young v. Hackley, ib.
346.] Yet both the Courts of Law and Chancery, allowed him
to retain the same liability, after its payment, against the claim of
the assignees for a debt due to the bankrupt at the commission
of the act of bankruptcy. [Smith v. Hodgson, 4 Term, 212;
Ex parte Wagstaff, 13 Vesey, 65.] These decisions, so fully
carrying out the equitable doctrine of stoppage, left no room to
complain of hardships, and except the jurisdiction exercised by
the Chancellors in bankrupt cases, there was little space for its
exercise on the general principles. The English Chancellors
then began to doubt as to the nature and origin of the doctrine,
though in general they conceded that equity had jurisdiction to
some extent. [James v. Kyneer, 5 Vesey 108 ; Ex parte Ste-
phens, 11 ib. 24 ; Taylor v. Okey, 13 ib. 180 ; Ex parte Blagden,
19 ib. 465.]
In the comparatively recent case of Piggot v. Williams, G
Wadd. 95, Sir John Leach refused, where a bill was filed by a
solicitor to foreclose a security, by way of mortgage, to sustain a
demurrer to a cross bill, insisting upon a breach of duty, whereby
costs were occasioned, and said, the proper course would be to
retain it, until an issue oi quantum damnificatus was tried. And
in Whyle v. O'Brien, 1 Sim. & Stu. 531, the jurisdiction to set
off one legal demand against another, was expressly denied. In
Rawson v. Samuel, 1 Craig. & Ph. 161, Lord Cottenham says,
we speak familiarly of equitable set off, as distinguished from set
off at law, but it will be found that this equitable set off exists in
cases where the party seeking the benefit of it can show some
equitable ground for being protected against his adversary's de-
mand.
Perhaps it will hereafter be found, if it is necessary to deduce
general principles from all the existing English cases, upon the
subject of set off, that they may be thus stated : 1. That although
Courts of Equity at first assumed jurisdiction on the natural equi-
JUNE TERM, 1845. 221
Tuscumbia, Courtland and Decatur Rail Road Co. et al. v. Rhodes.
ty, that one demand should compensate another, and that it was
iniquitous to attempt at law to enforce more than the balance,
yet now they only exercise it when a legal demand is interposed to
an equitable suit. 2. When an equitable demand cannot be en-
forced at law, and the other party is suing there. 3. Or where
the demands are both purely legal, and the party seeking the ben-
efit of the set off, can show some equitable ground for being pro-
tected.
We think it clearly deducible, from the general scope of these
decisions, that insolvency was recognized as a distinct equitable
ground, entitling the party to relief, even in cases where both de-
mands were purely legal.
In the American Courts, the cases are more numerous, and
quite as decisive to show, that the same principle obtains in them
generally. In Sampson v. Hart, 14 John. 63, Judge Spencer as-
serts, that insolvency furnishes a strong and substantial ground
of equity, as a meditated fraud. Other decisions rest the juris-
diction on the ground, that without its exercise, the party having
a clear natural equity, would be without relief [Lindsay v.
Jackson, 2 Paige, 281 ; Pond v. Smith, 4 Conn. 302 ; Ford v.
Thornton, 3 Leigh. 695 ; Feazle v. Dillard, 5 ib. 30 ; Collins v.
Farquer, 1 Litt. 153; Payne v. LandoU; 1 Bibb. 519; Robbins
v, Holley, 1 Mon. 191; Rowzel v. Gray, Litt. S. C. 487; Dick-
inson V. Chinn, 4 Mon. 1 ; Dye v. Claunch, 5 J. J. M. 659 ;
Chamberlain v. Stewart, 6 Dana, 32 ; Merrill v. Louther, ib. 305 ;
Walker v. Chamberlain, Sib. 184 ; Sarchett v. Sarchett, 2 Ohio,
432 ; Cullum v. Branch Bank, 4 Ala. Rep. 21 ; Pharr v. Rey-
nolds, 3 ib. 521 ; Abbey v. Van Camper, Freeman Chan. 273.]
• The only case which seems to indicate a different conclusion, is
Green v. Darling, 5 Mason, 201, but in that, there was no con-
sideration of, or decision upon, this question, though it seems to
have been in some degree involved by the facts stated. Judge
Story also seems to infer, from Lord Hardwick's expression with
reference to the time when the doctrine ofset off was introduced,
that insolvency alone will not give jurisdiction. [2 Story's Eq.
§1436, note 1. J
Notwithstanding the doubt of this eminent jurist, we think it
may be considered as well settled, that insolvency furnishes a
ground for the interposition of equity, in cases over which, other-
wise, there would be no jurisdiction, as in the case of a debtor
222 ALABAMA.
Tuscumbia, Courtland and Decatur Rail Road Co. et al. v. Rhodes.
■who claims to set off a legal demand against his judgment credi-
tor, which he cannot enforce, or have an adequate remedy for at
law, by reason of the insolvency.
This conclusion, though it will aid us materially, does not dis-
pose of the case under consideration, as it yet remains to be con-
sidered, whether Rhodes' demand, arising from the fact, that he
was the obligor in the bond to Sherrod, for the {iccommodation
of the Company, is a debt which can be set off in equity. The
circumstances attending the case require, that this case shall be
considered in two aspects. 1. Whether this demand, at the time
of the assignment, was a debt, as distinguished from a contingent
liability. 2. Whether its not being due at that time, though af-
terwards paid by Rhodes, invests the assignee of the Rail Road
Company with the superior equity.
In the opinion formerly delievered, we considered Rhodes' en-
gagement as a contingent liability merely, and from that deduced
the conclusion, that he was invested with no rights or equities un-
til its payment. We then deemed it similar to the engagement
of an indorser, which in Ex parte Hale, 3 Vesey, 304, and
Chance v. Isaacs, 5 Paige, 592, was considered as giving no
right to retain, against a debt assigned before the maturity of the
debt, and payment of it. Our conclusion was based on these ad-
judications, and we are now satisfied, that the ground of our for-
mer decision is untenable. If it was important to draw a distinc-
tion between an engagement to pay a sum of money absolutely,
for another, as by accepting his bill, or, as here, by giving a bond
for his debt, and the indorsement of his note, there can be no ques-
tion, that Rhodes' engagement is precisely the same as that of an
accommodation acceptor, and the cases before cited, oi Ex parte
Wagstaff, 13 Vesey, 65, and Smith v. Hodson, 4 Term, 212,
show that such an acceptor, after paying his bill, may retain.
But the distinction supposed to be established by Ex parte Hale,
is not deemed to be a sound one in Collins v. Jones,10B.& C. 777,
and is at variance with that, as well as Ballard v. Nash, 8 B. & C.
105, where indorsers subsequently paying the bill, were permit-
ted to retain, even at law, against the assignees. Independent of
these adjudications, it is very difficult to conceive what differ-
ence there is between the equities of an acceptor and indorser.
If there was, the strange anomaly would be seen, of allowing the
retainer, if the party holding the bill was unable to negotiate it,
JUNE TERM, 1845. 223
Tuscumbia, Courtland and Decatur Rail Road Co. et al. v. Rhodes.
in consequence of the doubtful credit of him who afterwards be-
comes bankrupt, and refusing the same I'ight when the goodness
of the paper has been avouched for by the indorsement. It is
impossible that natural equity can be governed by distinctions so
subtle. We are constrained therefore, to concede, that if the de-
mand now asserted for Sherrod's benefit, was the property of the
Rail Road Company, Rhodes' right to set off his demand, in
equity, would be clear, by reason of the admitted insolvency of
the Company.
And this brings us, lastly, to consider, whether the right which
Rhodes, under such circumstances, would be entitled to, is over-
come by any superior equity remaining in Sherrod, and arising
from the fact, that the debt which Rhodes had bound himself to
pay, was not due when his own liability was assigned by the
Rail Road Company, though subsequently paid, upon the rendi-
tion of the judgment for Sherrod's use.
Many of the cases cited upon the first point examined by us,
show very distinctly, that the assignee of a chose in action takes
it subject to all the equities existing at the time of the assignment,
and that the right to set off a debt is one of these equities. [Pe-
ters v. Soame, 2 Vern, 428 ; Feazle v. Dillard, 5 Leigh. 30 ;
Chamberlain v. Stewart, G Dana, 32 ; Merrill v. Louther, ib.
305; Walker v. Chamberlain, 8 ib. 1G4.] Judge Story evi-
dently doubted the existence of such a rule, when he decided
Green v. Darling, for he there says, " it may be admitted that
the assignee takes the chose in action, subject to all the equities
existing between the original parties, as to that very chose in ac-
tion ; but that is very different from admitting that he takes it
subject to all equities subsisting between the parties, as to other
debls-or transactions. The assignment of a chose in action con-
veys merely the rights which the assignor then possesses, to that
thing, but it does not necessarily draw after it all other equities of
an independent nature."
The rule recognized by. the other cited cases, grows out of,
and depends upon, the fact that set off is a natural epuity, and
being so, it at once attaches itself to all demands, the legal title
to which is incapable of transfer. The observations made in
Green v. Darling, apply with full force to that class of choses in
action which are capable of being transferred, so as to invest the
legal title in another. Such as notes and bills transferred by in-
224 . ALABAMA.
Tuscumbia, Courtland and Decatur Rail Road Co. et aJ. v. Rhodes.
dorsemcnt, or other mode which passes the legal title, after they
are due. As to these, there is no inherent equity to set offa cross
demand, because the law itself permits the legal title to be trans-
ferred. The cases are numerous and consistent, that the party-
charged on such a bill, or note, can only examine the particular
equities growing out of that transaction. [Burroughs v. Moss, 10
B. &C. 558 ; Breedlove v. Robinson, 7 Porter, 541, and cases
there cited.]
Our statute, which makes bonds and notes assignable, extends
the right of set off to all demands had before notice of the as-
signment ; but if the law is, as seems to be supposed in Green v.
Darling, there would, in this State, be no equities which would
warrant a set off against an open account, after its assignment, as
it is with us prohibited by no statute, other than the general one,
nnd if the assignee is not charged with the natural equity, he
would recover in all cases. We apprehend, the legal rule is, that
so long as a debt must be sued in the name of the original credi-
tor, it is prima facie subject to be set off by the debtor, but that
Courts of Law, at the present day, as well as Courts of Equity,
now protect the interest of the equitable owner, so as not to af-
fect him with any set off obtained, or payment made, after notice
of the assignment.
The Kentucky decisions, before cited, seem to place the sub-
ject on its proper foundation, when they held, that to let in a set
off on the mere ground of insolvency, it must be shown to have
existed when the assignment of the demand was made. [Rob-
bins V. Holley, 1 Monroe, 191 ; Walker v. Chamberlain, 8 Dana,
164.] The equitable rights growing out of the insolvency at-
tach immediately, and as soon as it exists ; whatever these may
be, they can never be affected by a subsequent assignment, how-
ever meritorious the consideration, for the equity of the assignee
being posterior in point of time, must yield to that of the debtor
creditor, which is older. [Merrill v. Louther, 6 Dana, 305.]
What then was Rhodes' equity against the Rail Road Com-
pany, when the assignment was made, by reason of its insolvency?
The difficulty in finding the appropriate answer to this question,
grows out of the apparent injustice, on the one hand, of permit-
ting the debtor corporation to receive the benefit of their debt
when it is morally certain they never will discharge that for which
Rhodes was the sponsor, and which he has since paid ; while,
JUNE TERM, 1845. 225
Tuscumbia, Courtland and Decatur Rail Road Co. et al. v. Rhodes^
on the other hand, there seems to be no English precedents, inde*
pendent of those referred to on the construction of the bankrupt
acts, of retaining a debt presently due, to answer one that will on-
ly become so at a future time. The cases decided upon the con-
struction of the bankrupt statutes, are nothing more than the re-
cognition of a principle well known to the civil law, which per-
mitted a creditor having goods or effects, in possession of one af-
terwards becoming insolvent, to retain them until the debt was
paid. The doctrine is treated of by Pardassus, under, and in con-
nection with, bills of exchange, paragraph 183, vol. 1 ; 389 vol.
2 ; and afterwards, in treating of des failletes. See also, Ersk.
Inst. b. 3, c. 35 ; Pothier Traite des able, n. 441 ; Wood's Inst.
227; Brown's Lectures, 362. We do not intend, however, to
draw upon the civil law for reasons to sustain a proposition which,
if it exist at all, is capable of elucidation from cases decided either
at law or in equity, by those Courts from which we are author-
ized to look for binding precedents.
We have already referred to Ex parte Deeze, 1 Atk. 228,
where a packer, having goods of a bankrupt to be packed, was
permitted to retain, not only for the price of the packing, but also
for a general debt. In French v.Denn, Cook's Bank. 636, cited at
large in 8 Taunt. 499, the bankrupt had intrusted his creditor
with his interest in a string of pearls, to be sold, and the money to
he paid to the bankrupt. The creditor sold the pearls, after the
act of bankruptcy, and the assignees brought trover : but it was
held, that the creditor was protected, and might hold the money.
The decision in Prescott's case, before cited, though placed to the
credit of the bankrupt acts, would be equally sustainable upon
natural equity, in a case of insolvency ; and such was evidently
the opinion of Lord Eldon, when, in a controversy between the
assignees of two bankrupts, one owed the other a cash balance,
but was liable at the same time on bills for his creditor's accom-
modation, asks the question, if this creditor, while the paper with
his cebtor's name upon it was afloat, could have recovered the
cash balance? He answers, that he could not ; the debtor would
say, that the creditor had his name engaged, and it must be dis-
entmgled before the creditor could call for the cash balance.
[Et parte Metcalf, 11 Vesey, 404.] The same principle gov-
ern; the cases of Willis v. Freeman, 12 East, 656, and Wilkins
v. Casey, 7 Term, 711, though in neither is it so distinctly set
29
286 ALABAMA.
Tuscumbia, Courtlandand Decatur Rail Road Co. et al. V.Rhodes.
forth as by Mr. Chitty, who cites them as sustaining the position,
that a person who is an accommodation acceptor,ma5^ retain a debt
or fund in his hands, as indemnity to secure himself, if his princi-
pal becomes either bankrupt or insolvent. [Chitty on Bills, 348.]
Lord Ellenborough, in Madden v. Kempster, 1 Camp. 12, ex-
pressly concedes this to be true, in relation to a bill, and it would
be difficult to state a doctrine more obviously equitable, than that
a debtor becoming his creditor's surety, when solvent, should be
entitled to retain a debt in his hands, to secure himself, when his
principal afterwards fails.
A coutract is always implied for indemnity, between the prin-
cipal and his surety, [Chitty on Bills, 347,] and it is on this ground,
that the surety is permitted to file a bill against his principal, to
compel him to pay. It has even been decided, that a Court of
Equity will decree the specific performance of a contract for
indemnity. [Ranelaghv. Hayes, 1 Vern. 180; 2 Story's Eq.
850.]
We think the cases cited, and principles adverted to, evince very
satisfactorily, that one who stands to another in the relation of a
surety, may, if his principal becomes insolvent, not only retain
money in his hands, as indemnity to secure himself against loss,
but also that personal chattels in the hands of the surety, upon
bailment may be retained for the same purpose. The cases of
Ex parte Deeze, and French v. Denn, indeed go greatly beyond
this, and recognize the same right of retainer as to goods, as ap-
plying to a general creditor: and in Rose v. Hart, 8 Taunt, 185, it is *:
said, that French v. Denn has been followed by a string of cases, I
for more than thirty years, all professing to be founded on it, and \
some of them containing the fullest approbation of Ex parte '*^
Deeze. |
In our country, the cases are less numerous, but equally con- 1
elusive. In Feazle v. Dillard, 5 Leigh, 30, although the decision '
of the Court did not turn on the question, it was fully considered,
and the Court of Appeals held, that a surety for a debt not due,
when the assignment was made, was entitled to retain agfinst
the assignee, upon the insolvency of his principal, who was dso
his creditor by difl!erent transaction. It is there said, the insol-
vency constitutes a new ingredient in the case, and upon the prin-
ciple of the bill quia timet, a Court of Equity will permit the re-
tainer for the indemnity of the surety, unless the insolvent Mill
M
JUNE TERM, 1845. 287
Tuscumbia, Courtland and Decatur Rail Road Co. et al. v. Rhodes.
make some satisfactory indemnity. To the same effect is Abbey
V. Van Campen, Freeman, 273 ; Williams v. Helm, 1 Dev. Eq.
151 ; Battle v. Hart, 2 ib. 31.
To conclude then, it seems clear, that the entire equity of
Rhodes rests upon the insolvency of the Company, and that the
existence of this fact, introduced new relations between them,
whereby the former was entitled to retain the debt due to the lat-
ter, independent of the manner in which it was created, until the
Company either relieved him from, or indemnified him against,
his obligation ; as this equity existed when the assignment was
made, that of Sherrod is controlled by it, and the debt having sub-
sequently been paid by Rhodes, he is entitled to the relief which
he seeks.
The result of our protracted examination of this case is, the
affirmance of the Chancellor's decree, contrary to our first im-
pressions.
ORMOND, J. — In dissenting from the opinion of the majority
of the Court, I do not propose to enter upon an elaborate exami-
nation of the question. I have done so in the opinion previously
delivered, and after an anxious reconsideration of it, I feel myself
constrained to adhere to it. r
I am thoroughly satisfied, that the principle which is made to
govern this case, cannot be derived from the equity of our sta-
tute of set off, and has no foundation whatever in the "natural
equity" to which the doctrineof stoppage, or compensation, owes
its existence. On the contrary, I think it is demonstrable, that
the rule which is made to govern this case, has its origin in the
bankrupt law of England, by a liberal and equitable interpretation
of the term « mutual credit," to be found in that act, though want-
ing in the statutes of set off, which speak only of « mutual debts."
By an equitable interpretation of the bankrupt law, when debts
exist between two persons, they are each supposed to give the
other a credit, on the faith of the debt each owes the other, and
this has been carried so far, as to be held applicable, when one of
the parties was ignorant, that the other held a security upon him.
[Hankey v. Smith, 3 Term, 507, in note.]
Lord Hardwicke, who can't very well be presumed to be igno-
rant upon this subject, says, that before the passage of the act of
the 5 Geo. 2, no such right existed. He commences his judg-
228 ALABAMA.
Tuscumbia, Courtland and Decatur Rail Road Co. et al. v. Rhodes.
ment, by saying, " No case has been cited to me, either on one
side, or the other, and therefore I must make a precedent," and
after stating the case, to be, that of a debt not due, which was of-
fered against the assignee of a bankrupt, as a set off, and after re-
citing the act of 5 Geo. 2, proceeds to say: "Before the making
of this act, if a person was a creditor, he was obliged to prove his
debt under the commission, and to receive perhaps only a divi-
dend of 2s. Gd. in the pound, from the bankrupt's estate, and at
the same time pay the whole to the assignee, of what he owed
to the bankrupt; to remedy this very great inconvenience, and
hardship, the act was made." He concludes, that it is a case of
"mutual credit," within the equity of the statute.
Since that time, the construction of the statute has been gene-
rally in accordance with the rule thus established. But it ap-
pears to me, it can admit of no controversy, that without the aid
of the statute, no such decision could have been made. Such a
consummate master of equity, as Lord Hardwick, certainly knew
what had previously been the rule of decision, and if he was ig-
norant, the able counsel practising before him were equally so,
as they could cite no case in point. Some few, straggling, badly
reported cases, there were to be sure, not referrable to any es-
tablished head of equity. These remarks do not apply to Lanes-
borough V. Jones, 1 P. Will. 326, which is put by Lord Chan-
cellor Cowper, expressly upon the term « mutual credit,'' in the
4th Anne, c. 17, and in that case the debts appear to have been
due on both sides.
So in Jeff V. Wood, 2 P. Will. 1291, the stoppage was allow-
ed, because there were « mutual debts," and the balance was de-
creed ; the Master of the Rolls agreeing, that in the absence of
any agreement to that effect, there could be no stoppage, unless
the debts were due, when the balance only would be the true
debt. The later English authorities confirm this doctrine, and I
will merely refer to the cases cited by Judge Story, 2d Com. on
Eq. G58, 664.
The case Ex parte Deeze, 1 Atk. 228, was evidently deter-
mined upon the usage of trade, by which the « packer" of the
goods, retained a lien upon them, for the payment of the price of
the packing. Such being the case. Lord Hardwicke asks,
« what right has a Court of Equity to say, that if he has another
debt due to him from the same person, that the goods shall be ta-.
JUNE TERM, 1845. 229
Tuscumbia, Courtland and Decatur Rail Road Co. et aJ. v. Rhodes.
ken from him, without having the whole paid ?" He concludes
by admitting, that if there had been no bankruptcy, in an action
for these goods, the debt could not have been set off, yet that it
might come within the extended meaning of the term mutual
credit.
The case Ex parte Hale, cited from 3 Vesey, 304, was only
cited by me to show, that even under the bankrupt law of Eng-
land, a set off in bankruptcy, must be an absolute, and not a con-
tingent liability. The argument then made, did not rest on that
case for support. We have no bankrupt law here, under which
such an off set can be made, whether contingent or absolutej
That case was adduced, as fortifying the point, not as essential
to the proposition maintained.
Insolvency, is doubtless a sufficient reason in many cases for
the interposition of a Court of Chancery, and as such, has been
frequently recognized in this Court — as, where an insolvent man,
is seeking to coerce a debt from one, to whom he is indebted, but
which, from some cause, cannot be set off at law. As between
the debtor, and creditor, there can be no doubt of the power, and
the duty of Chancery, in such a case to interpose. But where
third persons have acquired rights, different considerations arise,
and according to my notions of equity, it would be unjust in a
Court of Chancery to interpose, and deprive an assignee of his
legal rights, unless there is a natural equity growing out of the
transaction itself, of which it is just that the debtor should be per-
mitted to avail himself
I can see none such in this case. The debts are not mutual
in any sense of the term, nor can there be any pretence of an
agreement for stoppage ; nor is there any equity inherent in, or
growing out af the debt, due from Rhodes to the Rail Road, which
a Court of Equity can give effect to. It is the naked case of a set
off, allowed against the assignee, which had no existence until
long after the debt matured, which the debtor owed the Compa-
ny, and which had been before assigned.
I do not deny that the Virginia, and Kentucky cases, do sup-
port the opinion pronounced. With all respect for those enlight-
ened tribunals, I would insist, that the^ are not based upon the
rules of equity, as administered in England, independent of the
statute of bankruptcy ; but are founded, as is shown by the cases
230 ALABAMA.
Bagby, Governor, &c. v. Chandler and Chandler.
themselves, upon decisions growing out of the bankrupt acts*
That these acts introduced a principle, unknown before to the
English Chancery, can, 1 think, neither admit of doubt or contro-
versy.
BAGBY, GovEROR, &c. v. CHANDLER AND CHANDLER.
1. The Court in which a suit is pending, may, in its discretion, set aside an
interlocutory judgment, and allow the defendant to make defence, at least,
if he interposes a general demurrer, or plea to the merits.
2. An action may be maintained, upon the official bond of a constable against
the principal and his sureties, without first establishing the default and li-
ability of the former, in a separate suit.
3. The bond of a constable, though payable to the Governor eo nomine and
his successors in office, is, in legal effect, an obligation to the Governor, as
the chief executive officer; and may be sued and declared on, without no-
ticing the obligee's name. Or, if the suit be brought in the name of the
nominal obligee, (describing him officially,) who was superseded in office
before its commencement, it will be regarded as an action by the Gover-
nor, and the name of the individual will be treated as surplusage.
Writ of error to the Circuit Court of Perry.
This was an action of debt, commenced in May, 1843, at the
suit of the plaintiff in error against the defendants, as the sureties
of James L. Chandler, for the performance of his duties as a con-
stable of Perry county. The breaches alledged are, the receipt
of two executions, (particularly described in the declaration,) on
which the money has been made, but not paid over on demand ;
and further, that the same have not been returned. A demurrer
was interposed by the defendants, which being sustained, a judg-
ment was rendered accordingly.
H. Davis, for the plaintiff in error, made the following points.
1. The suit was well brought, in the name of A. P. Bagby, al-
JUNE TERM, 1845. 231
Bagby, Governor, &c. v. Chandler and Chandler.
though he ceased to be Governor before its commencement. See
Clay's Dig. 364, § 9 ; 1 Stewart's Rep. 266 ; 3 Stew. & P. Rep.
18 ; 4 Porter's Rep. 90 ; 6 Porter's Rep. 32. If the objection
was available, it should have been pleaded. [6 Ala. Rep. 143.]
2. It was not necessary to ascertain the liability of the princi-
pal, in order to make the defendants, his sureties, liable on their
bond. [4 Stew. & P. Rep. 441.]
3. It is not necessary for a constable to renew his bond annu-
ally, to render his sureties liable for defaults, occurring more than
one year after its date. See pamphlet acts 1833-4, p. 7. The
statute there found, was not considered in the case in 5 Porter's
Rep. 27, and was perhaps inapplicable, as the bond was execut-
ed before its passage.
, 4. All the breaches assigned, might, with propriety, have been
embraced in the same declaration. [4 Stewt. & Por. Rep. 441,
445.]
5. The demurrer was interposed after a judgment by default
had been taken, and set aside. This it is insisted, could not have
been done.
T. Chilton, for the defendants. The statute requires the
bond to be payable to the Governor for the time being, and his
successors in office, and the suit must be brought in the name of
the person who is Governor at the time of its commencement.
The other objections which the plaintifFhas attempted to answer,
it is believed, are sufficient to have authorized the Circuit Court
to sustain the demurrer.
COLLIER, C. J. — No formal judgment, by default, seems to
have been rendered previous to the filing of the demurrer, but it
was merely noted on the minutes of the Court, that the plaintiff
claimed such a judgment, which was «to be opened on merits
shewn." It appears from the final entry, that the parties came
by their attornies, and the plaintiff's demurrer was argued by
counsel, &c. Here, instead of indicating an objection to the con-
sideration of the demurrer, it is clearly inferrable that it was as-
sented to by both parties. But suppose such an objection had
been interposed, is it competent to object on error that it was
overruled ? We think not. It is within the acknowledged pow-
er of a Court of primary jurisdiction, to set aside an interlocutory
932 ALABAMA.
Bagey, Governor, &c. v. Chandler and Cahndler.
judgment, and to allow the defendant to come in, and make de-
fence to the action. Whether a special demurrer, (where allow-
able,) or a plea which docs not litigate the merits, can be receiv-
ed, we need not inquire. A general demurrer is an admission of
the facts which are well pleaded, and refers the law arising there-
on to the judgment of the Court. [Cox v. Gulick, 5 Hal. Rep.
329; Neale v. Clantice, 7 H. dz^ Johns. Rep. 372; Tucker v.
Randall, 2 Mass. Rep. 284.] It is, according to the English
practice, an issuable plea. [Marsh v. Barney, 10 Wend. Rep.
540 ; Roane's Adm'r v. Drummond's Adm'r, 6 Rand. Rep. 182.]
The demurrer, then, so far as the record discloses the facts, was
properly received, and the question is, whether it should have
been sustained.
In the Governor, use, &c. v. White et al. 4 Stew. & P. Rep.
441, it was explicitly determined, that an action of debt may be
sustained jointly against a sheriff, and his sureties, upon his offi-
cial bond for a failure to pay over money collected by him, with-
out first establishing the default and liability of the sheriff, by a
separate suit. [See Governor v. Perkins, 2 Bibb's Rep. 395.]
This case is conclusive to shew that the sureties and their princi-
pal were jointly suable.
It does not appear from the declaration, that the plaintifTis seek-
ing to recover for a breach which occurred more than one year
after the bond in suit was executed, so that it is unnecessary to
consider whether the sureties undertook that their principal should
faithfully perform his official duty for a longer period than twelve
months. In Richardson v. Bean and Washington, 5 Ala. Rep.
27, we held, upon full consideration, that the sureties of a con-
stable could not be made liable for his defaults, occurring after
the expiration of a year, from the time of executing his official
bond. If no statute has been enacted, modifying the law, since
this case was decided, we should be disinclined to depart from it.
See Hewitt v. State, 6 Har. & Johns. Rep. 95.
Constables elected in the several counties of this State are re-
quired to enter into bond, with sufficient security, to be approved
by the Judges of the County Courts respectively, payable to the
Governor for the time being, and his successors in office, &c. [Clay's
Dig. 364, § 9, 366, § 18.] In the present case, no objection is made
to the form of the bond, but it is insisted, that as the person to
whom it is made payable eo nomine, had ceased to be Governor
JUNE TERM, 1845. 233
Bagby, Governor, &c. v. Chandler and Chandler.
before the institution of the suit, the action should have been
broufjht in the name of the individual who was the executive of
the State, when it was commenced. Certainly the bond enured
to the successor of the obligee, as the representative of the State,
yet it by means follows, that his name should be stated as plain-
tifTof record.
The duty, for the performance of which the obligors bound
themselves, attached, not the person, but to the office of the obli-
gee, and an action for a breach, we think, might be maintained, at
the suit of the Governor, without designating him by name. The
Governor is an officer created by the constitution, and regulated
by the constitution and laws, and is of continued existence, no
matter who fills the executive chair. As an individual, he is not
liable to costs, if unsuccessful in the suit, and can derive no per-
sonal benefit, from a recovery in his name. The bond in ques-
tion, is then, in legal effect, an obligation to the Governor, for the
benefit of the State, and may be thus declared on, without notic-
ing the obligee's name.
In Findley v. Tipton, 4 Hayw. Rep. 216, it appeared, that a
constable's bond was given to J. S., Governor, &c. though W. B.
was in fact the Governor ; the Court held, that the name of J. S.
might be rejected, as surplusage, and that the bond was good,
without inserting the name of the obligee. And in Smith v.
Cooper, 6 Munf. Rep. 401, it was said, that in declaring on such
a bond, it was not necessary to allege non-payment to the obli-
gee or his successors.
So a bond to the treasurer of a town, may be sued in the name
of the town — being in law a bond to the town. [Hopkins v.
Plainfield, 7 Conn. Rep. 286.]
The action in the case before us, we have seen, might have
been brought by the Governor, as an officer, without disclosing
his name upon the record ; but if, instead of thus suing, he states
the name of the obligee, the executive when the bond was con-
summated, who has been since superseded by a successor, it must
be regarded as a suit by the Governor, and the name of the indi-
vidual will be regarded as surplusage. If the name be stricken
out, the officer is sufficiently indicated, both by the writ and de-
claration, as the plaintiff". The authorities cited, and the reason
of the thing, all lead to this conclusion, so that it is unnecessary to
add more on the point.
30
234 ALABAMA.
George v. Cahawba and Marion Rail Road Company.
As to the frame of the declaration, no objection has been made
to it, and we have not discovered that it is defective in substance.
From what has been said, it results that the demurrer to the de-
claration should not have been sustained. The judgment of the
Circuit Court is therefore reversed, and the cause remanded.
GEORGE V. CAHAWBA AND MARION RAIL ROAD CO.
1. A set off cannot be pleaded to an action for unliquidated damages, aris-
ing out of the breach of a contract, in refusing to permit tlie plaintiff to
perform services which he had contracted to perform.
2. When the plaintiff declares in assumpsit on one count for unliquidated
damages, also on the common counts, to which the defendant pleads a gen-
eral plea of set off, upon which issue is taken, and offers evidence to sus-
tain this plea, it is error in the Court to instruct the jury, that the action
was subject to, and could be set off, as the effect of such a charge is to
preclude the jury from finding a separate verdict upon the different counts,
which would enable the plaintiff to remedy the mispleading.
3. When one contracts to perform work for another, at a stipulated price,
and is prevented by him from entering upon the performance, the measure
of damages is the difference between the cost of performing the work by
the party agreeing to do it, and the price agreed to be paid for it ; in other
words, the profits the party would have made.
Writ of Error to the Circuit Court of Dallas.
Assumpsit by George against the Rail Road Company. The
declaration, besides the common counts, has one, in which the
plaintiff counts on a special contract between himself and the
Company, by which he was to perform certain work, and labor,
on the road, for certain compensation to be paid him. The work
to be done was, the excavation and grading of the 11th and 12th
sections of the road, for which the plaintiff was to receive twenty-
five cents per yard, for excavating, and twenty cents per yard
for grading. The count avers, that plaintiff entered upon the
JUNE TERM, 1845. 235
George v. Cahawba and Marion Rail Road Company.
performance of the work, but that the defendant would not per-
mit, or suffer him to complete the same. It concludes with al-
ledging, that thereby the plaintiffhas lost, and been deprived of,
the profits and advantages, which otherwise he would have de-
served and acquired.
The defendant pleaded — 1. Nul tiel corporation. 2. Non-
assumpsit. 3. Payment and set off. These pleas are pleaded
by their names only, in short, by consent of parties, and there is
a joinder of issue in the same manner.
At the trial, the plaintiff, with the leave of the Court nolpros'd
the common counts of his declaration. The defendant, under the
plea of set off, pending the trial, introduced as a set off, four in-
stalments of plaintiff upon his stock, as a corporator of the Com-
pany, amounting to $400 ; the evidence in relation to which, be-
fore the argument of the case commenced, the plaintiff moved
to exclude from the jury, upon the ground, that the action was
for unliquidated damages, and was not subject to set off. This
motion the Court refused to grant, and allowed the jury to act
upon the evidence, and charged them, that said action was sub-
ject to, and could be set off.
The plaintiff asked the Court, to instruct the jury, that the mea-
sure of damages, in this case, was the amount which the defend-
ant, by the contract, would have had to pay the plaintiff, on the
completion of his part. This charge was refused, and instead,
the jury was instructed, that the measure of damages was, the
profit which the plaintiff reasonably would have made, on the
said contract.
These several matters were excepted to by the plaintiff, and
are now assigned for error.
G. W. Gayle, for the plaintiff in error, insisted — >-
1. That it was error not to exclude the set off, the action be-
ing for unliquidated damages. [McCord v. Williams, 2 Ala. Rep.
71.]
2. The contract declared on was special, or entire, and the
plaintiff should have been permitted to recover the whole amount
of the contract, subject to set off. [Cavender v. Funderburg, 9
Porter, 460 ; Pettigrew v. Bishop, 3 Ala. Rep. 440 ; Story on
Con. 10, § 17.]
386 ALABAMA.
George v. Cahawba and Marion Rail Road Company.
Evans, contra, argued —
1. The record does not disclose the particular circumstances
of the proof, made by the plaintiff, and therefore the question,
whether the defendant's set off could be allowed against unliqui-
dated damages, does not arise. The right to set off, against a
special count, exists whenever a recovery on the contract could
be had, under the common counts. [Chitty on Con. 332.] It is
not necessary the debts offered to be set off, should be of the same
nature, so that they are mutual debts. [Chitty on Con. 228.]
2. As to the measure of damages, he cited Shannon v. Corn-
stock, 21 Wend. 457 ; 3 Greenl. 51 ; Mahan v. Cooper, 4 Ala.
Rep. 060.
GOLDTHWAITE,J.— 1. The question in this case, of the
right to set off the instalments, due to the Rail Road Company,
by the plaintiff, against his action, is not one of difficulty. The
general rule in relation to set off is, if the moneys sought to be re-
covered under a special contract, for damages, may be recover-
ed under the common counts, then the defendant may set off.
[Chitty on Con. 332 ; see also, McCord v. Williams, 2 Ala. Rep.
71.] Let us test the plaintiff's special count by this rule. He
does not pretend that any thing is due him for the services actu-
ally rendered, though the assertion is made, that he entered on
the performance of his contract. The sole ground of his action
is, that the defendants would not permit, or suffer, him to pro-
ceed, by reason of which, he lost the profit he otherwise would
have made. It is impossible to say, that evidence of the viola-
tion of the contract in this particular, could be given in evidence
on the common counts. Whe think it clear therefore, that a plea
of set off, to the special count, would be considered bad if demur-
red to.
2. But such is not the condition of the record ; issue was join-
ed on the pica, and however iiTcgular or insufficient, the defendant
had the right to insist on evidence applicable to it. If then, the
Court had gone no farther, than to refuse the plaintiffs motion to
exclude the evidence of set off, it would be the same as Watson
V. Brazeal, at this term, where we held, that the truth of the issue,
and not its effect, was the matter to be ascertained by the trial.
[See also, Purdom v. Hazard, 3 Porter, 43 ; CuUum v. Bank, 4
Ala. Rep. 21,] Independent, however, of the refusal to exclude
JUNE TERM, 1845. 237
George v. Cahawba and Marion Rail Road Company.
the evidence of set off, the Court charged the jury, that the action
was subject to, and could be, set off. The effect of this, was to
preclude the jury from rendering a separate verdict upon the is-
sues submitted to them, which they had the right to do, and
which, if they had done, the injuiy arising to the plaintiff from
the mispleading, might have been obviated, by rendering a judg-
ment non obstante veredicto. We come to the conclusion then,
that the charge of the Court, in this respect, is erroneous, and as
injury has resulted to the plaintiff, the judgment, for this, must be
reversed.
3. It yet remains to consider the question made, with respect
to the measure by which damages are to be ascertained upon
this contract. It is perhaps impossible to ascertain any one rule
which will cover all classes of contracts, in regard to the dama-
ges which may be awarded to the injured party ; but we think it
clear, the one proposed by the plaintiff, was not proper to the
circumstances of the case, as disclosed by the pleadings, and we
are entirely ignorant of the proof. If the work had been per-
formed, a certain price was to have been paid, but this price is not
the measure of damages, because it is evident, the cost of the
work to the plaintiff, would necessarily have been something.
The difference, then, between this cost, and the price agreed to
be paid — in other words, the profits which he would have made,
is the general measure by which to ascertain the damages.
[Shannon v. Comstock, 21 Wend. 457.] This indeed, is the
measure which the plaintiff himself has indicated, when he says,
that by the defendant's breach of the contract, he has been de-
prived of the profits and advantages which otherwise he would
have acquired. There is no error in this particular.
For the error however already noticed, the judgment must be
reversed, and the cause remanded.
2S8 ALABAMA,
Casey, et als. v. Pratt
CASEY, ET ALS. v. PRATT.
1. D. C. & Co. being bound on certain bills of exchange, for another firm,
obtained from them, as an indemnity, a bill of exchange for $4,000, to be
held as collateral security. The debt, to secure which it was given, was
discharged by the acceptor, by payment, some time in April, 1837 ; not-
withstanding which, D. C. & Co. caused the bill for $4,000 to be protest-
ed for non-payment, on the 14th April, 1837. On the 12th (May, 1837,
' D. C. & Co. made a deed of assignment, of all their effects, to P. as trus-
tee, for the payment of debts, in which this bill was not included. On the
30th May, 1837, D. C. fraudulently put the bill for $4,000 in suit, against
C. C, who had indorsed it for the accommodation of the drawers, and by
his neglecting to make defence, a judgment was obtained, in the name of
D. C. & Co. against him, which he ineffectually attempted afterwards to
enjoin in Chancery. Subsequently, B. & W., creditors of D. C. & Co.,
obtained an assignment of the judgment from D. C. & Co. P. tlie trustee,
exhibited his bill, to get the benefit of the judgment, alledging, that it
passed to him under the assignment. Held, that as D. C. & Co. had no
title to the bill, upon which the judgment was founded, at the date of the
deed, none passed to the trustee by the assignment ; and, that he could
not deduce a title under the general clause of the assignment, by a frau-
dulent act of the assignor. That, although the grantor was estopped from
setting up a title in himself, by alledging his own fraud, yet, that a Court
of Chancery would not interfere, and divest the title of another, who did
not deduce his claim through the fraudulent act of the grantor;
Error to the Chancery Court at Mobije.
The bill was filed by the defendant in error, and alledges, that
the firm of D. Casey & Co. recovered a judgment against Chas.
Cullum, for the sum of 84,702 43, besides cost of suit, at the
February term, 1838, which was affirmed by the Supreme Court,
at the January term, 1839, against Cullum, and Joseph Wis wall
as. his surety. That the judgment was founded on a bill of ex-
change, drawn by Brown & Cawly, of Mobile, on Smith & Conk-
lin of New York, in favor of Cullum, for the sum of $4,000, dat-
ed 4th January, 1837, and was protested on the 14th April, of
the same year, for non-payment. That the draft was in the
hands of D. Casey & Co , at the maturity of the bill, and contin-
JUNE TERM, 1845. 239
Casey, et als. v. Pratt.
ued to be held as their property. That in May, 1837, D. Ca-
sey & Co. made a general assignment of all the effects of the firm,
to complainant, as trustee. That Casey did not deliver to him
the bill, or inform him that it was in his hands.
The bill further charges, that the firm of Bartlett & Waring,
claim an interest in the judgment, by an assignment subsequent
to his, and that one Joseph Wiswall also claims an interest, but
it is also charged, that they had knowledge of the prior right of
the complainant.
It is further charged, that a bill was filed in Chancery, by Bart-
lett &■ Waring, against D. Casey & Co., to attach the judgment
aforesaid, to which bill he was a party, but of which he had no
notice, and that no subpoGna was served on him. That a bill
was also filed in Chancery, by Cullum against D. Casey & Co.,
to avoid the judgment, in which all the facts are stated, and that
the same solicitors filed both bills, and therefore had notice of all
the facts. The prayer of the bill is, that Bartlett & Waring, and
Wiswall, be enjoined from collecting the judgment from Cullum,
and that it be assigned to him. Appended to the bill as an ex-
hibit, is the schedule of the assigned effects, but this bill of ex-
exchange is not enumerated among them.
John Bartlett, of the firm of Bartlett & Waring, answers, and
admits, that to obtain payment of a debt he had against D. C<isey.
he filed a bill to subject the judgment against Cullum, in favor of
D. Casey & Co., to which complainant was a party, but that be-
fore proceeding in it, his partner. Waring, called on complainant,
and informed him of the circumstances, when he disclaimed all
interest in the judgment, and that it was unnecessary to carry on
the suit on his account. In consequence of this disclaimer, the
matter was adjusted by the rendition of a decree by consent, in
favor of B. & Waring, and a release executed to D. Casey & Co.
for the debt due from them. He further insists, that D. Casey &,
Co. had no interest in the bill of exchange, at the time of the as-
signment to complainant, but that it belonged to Ransom & Spell-
man of New York, who, although partners of D. Casey, were
also doing business in New York in their own names. He also
states, that the judgment against Cullum has been assigned to
him, by Waring, who has no interest in it.
D. Casey, by his answer, denies that the bill was the property
of D. Casey &. Co., at the time of the assignment to complainant.
240 ALABAMA.
Casey, ct als. v. Pratt
He states, that the house of D. Casey & Co. had indorsed seve*
ral bills of exchange, for the house of Brown & Cawly, drawn on
Smith & Conklin of N. York; that before the bills matured, he be-
came uneasy, and applied to Brown & Cawly for security, and that
for his security, they furnished the bill of exchange described in com-
plainant's bill, as an indemnity. That the drafts of Brown &, Cawly,
for wliich the last bill was an indemnity, were not paid at maturity,
but were, to the amount of 83,726 95, paid by Ransom&Spellman,
with their own funds, and not with the funds of D. Casey & Co.
He admits the bill filed by Bartlett & Waring, to subject the
judgment against Cullum, to the payment of their debt ; and that
Ransom & Spellman being informed of it, interposed no objection,
and a decree was entered, in favor of Bartlett & Waring, they
releasing their debt against D. Casey & Co.
The bill was also answered by Waring, in substance the
same as that of his partner, and denying that he had any interest
in the matter.
Much testimony was taken, but it is not necessary to to be
here set out. The Chancellor decreed in favor of the complain-
ant, from which this writ is prosecuted.
Stewart and Dargan, for plaintiff in error. They contended,
that there was no equity in the bill. That the complainant trac-
ed his title to D. Casey, and that Casey obtained it by fraud.
That if the debt was valid, it did not pass by the deed — that all
the debts intended to be transferred, were included in the schedule,
and this was not one of them.
That at the time the deed was made, the bill on which this
judgment was founded, was not a debt due Casey & Co., and
therefore did not pass by the assignment. That the equity of
Bartlett & Waring, was at least equal to that of the complain-
ant, and this Court would not interpose between them, and for
this they cited 2 Stewart, 378.
Campbell, contra. This is treated by all the parties, as a va-
lid, subsisting judgment, and if it were not, it must be so consid-
ered, as the controversy is between parties, and privies. Nor is
there any evidence impeaching the bill of exchange. D. Casey
& Co., are estopped from saying it did not belong to them, as they
had it in possession previous to, and after the deed of assignment ;
JUNE TERM, 1845. 241
Casey, et als. v. Pratt
instituted suit thereon, and recovered judgment. To prove the
conclusiveness of the judgment, he referred to the cases collect-
ed by Cowan & Hill, in their Notes on Philips' Ev. 2 vol. 810.
ORMOND, J The object of the bill [s to give the complain-
ant the benefit of a judgment obtained by D. Casey & Co. against
Charles Cullum, upon the ground, that the bill of exchange on
which the judgment is founded, passed to the complainant, by a
genferal assignment to him, by D. Casey & Co., in May, 1837, of
all the effects of the firm, in trust for the creditors of the firm.
That the bill of exchange was not included in the schedule of the
assets accompanying the deed, but was fraudulently withheld,
by Casey, and subsequently sued upon in his own name.
The right to the judgment is also asserted, by the defendant,
Bartlett & Waring, who derive title thereto by an assignment of
the judgment, by D. Casey &Co.,obtained subsequent to the deed,
under which the complainant claims, but in ignorance as they as-
sert, of his title, and after he had disclaimed title to it.
The facts as they now appear, are, that Dennis Casey & Co.
were accommodation indorsers for the firm of Brown & Cawly,
on certain bills, payable in New York, on the 22d January, 1837,
for about $3,700. To indemnify them against responsibility on
these Bills, Brown & Cawly, handed to D. Casey & Co., for the
purpose of raising money thereon, or as collateral sccurity,a bill for
$4,000, on which Charles Cullum, was an accommodation in-
dorsee The bills drawn by Brown & Cawly, were not paid
promptly, at maturity, but were paid by Ransom & Spellman,
partners of D. Casey & Co. in New York, for the honor of the
firm of D. Casey & Co. Soon afterwards, but when does not
distinctly appear, certainly however, before the 22d of April, 1837,
Smith & Conklin, the drawers of the bills of Brown & Cawly,
repaid to Ransom & Spellman, the amount of the bills of Brown
& Cawly, which they had taken up for the honor of D. Casey &
Co. On the 14th April, 1837, D. Casey & Co. caused the bill
of $4,000, which they had received as collateral security for
their indorsement of the first mentioned bills, to be protested.
From this statement it is perfectly clear, that the title of D.
Casey & Co. in the bill for $4,000, was extinguished by the pay-
ment of the bills, for which it was merely a collateral security.
Nevertheless, it appears that D. Casey, about the 30th May, 183*7,
31
24^ ALABAMA.
Casey, et als. v. Pratt.
put the bill in suit against C. CuUum, the indorser, and by the
neglect of CuUum to make defence, obtained a judgment against
him at law, which he afterwards ineffectually attempted to en-
join, in Chancery, and the judgment is now in full force against
him.
As between the parties to this judgment, and those in privity
with them, the record is doubtless evidence, that such a judgment
was pronounced, and it is also conclusive evidence, of the facts
on which the judgment is founded. [Duchess of Kingston's case,
1 Starkie's Ev. 190.] Cullum, by permitting this judgment to be
rendered against him, has precluded himself from denying, that
he owed the debt on which it is founded, to D. Casey & Co. ;
and it may be conceded, that he is placed under the same inter-
dict, as it relates to each of the parties, who claim by assignment
from D. Casey & Co., and are therefore invested with all their
rights. The case has been strenuously argued, as if the solution
of this question settled the difficulty, but that, in truth, is not the
question presented on the bill. It is not whether this judgment is
valid, or invalid; but it is, whether, conceding the judgment to be
valid, the complainant has shown a title to it.
It is not pretended, that the title passed by actual transfer of
the bill, or by an equitable assignment, by virtue of the schedule
attached to the deed; but, it is insisted, that it passed in equity,
because it was the property of D. Casey & Co. at the time the
deed was made, and by the deed, all the effects of the firm of D.
Casey & Co. were conveyed to the complainant, whether men-
tioned in the schedule or not. The question then, is resolved in-
to the simple proposition, had D. Casey & Co. any property, le-
gal or equitable, in the bill of exchange, at the time the deed was
made. Now, at the time the deed, on whi^h the complainant re-
lies, was made, on the 12th May, 1837, the bill was not the pro-
perty of D. Casey & Co.; it had, by the payment of the debt, to
secure which it was made, become mere waste paper in the hands
of D. Casey & Co., and if they had actually transferred it to the
complainant, he could have acquired no title to it, because they
had none to confer. Can it be contended, that the deed of as-
signment, gives to the complainant a title, which he can enforce
against any one, to all the fraudulent acquisitions of the grantor,
merely because the inception of the fraud, dated back to a time
anterior to the assignment ? Even that pretension cannot be set
JUNE TERM, 1845. 243
Casey, et als. v. Pratt
up in this case, because, before the deed was made, the bill had
been discharged, and D. Casey & Co. had not the right even
to the possession of the paper, on which the bill was written.
It may be conceded, that if this controversy was between Ca-
sey & Co., and the complainant, the fact, that the bill was dated
anterior to the deed, would be conclusive against them, and they
would not be permitted to aver the contrary, and rely upon their
own fraudulent acquisition, subsequent to the date of the deed of
assignment ; but that is not the predicament of the case. Casey
& Co. have no interest whatever in this controversy, which is be-
tween the complainant and an assignee of the judgment, who is
not compelled to deduce his title, through the fraudulent act of
Casey & Co.; but who, it appears, paid a full consideration for
it, after the claim had been reduced into a judgment.
We do not, however, determine this case upon the compara-
tive merits of the two claims. If the aid of this Court was re-
quired to enforce either, it might perhaps be well doubted, wheth-
er the Court would lend its aid, to enforce a claim, which, though
matured into a judgment, it is now evident was not founded upon
an actual existing debt. But Bartlett &, Waring, are not asking
the aid of this Court. Our interposition is sought by the com-
plainant, who in effect, asks us to deprive Bartlett & Waring of
a right, by giving him the benefit of a fraudulent act of D. Casey
& Co. In such a scramble, for that which really belongs to an-
other, this Court cannot lend its aid. So far as the parties are
protected, and supported by legal presumptions, which cannot be
contradicted, this Court may not have the right to interpose, and
deprive them of them ; but when they seek our aid, to assist them
in enforcing them, the matter assumes a different aspect, and we
may then inquire, whether in equity and conscience, they are en-
titled to the aid of the Court.
This view is decisive of the present case, and renders it unne-
cessary to consider the other questions argued at the bar. The
decree of the Chancellor must be reversed, and a decree be here
rendered, dismissing the bill, at the joint costs of the complainant
and Bartlett; Waring, as it appears, having no interest in the
controversy.
ORMOND, J. — During the last term, a petition for a re-hear-
ing was made in this case, and continued until the present term^
244 ALABAMA.
Shradcr v. Walker, Adm'r, et al.
and upon further reflection, we are satisfied that a modification of
the decree formerly rendered is proper.
It is very clear, that Casey & Co. cannot assert a title to the
proceeds of the judgment against Cullum, as against Pratt his as-
signee, by alledging his own fraud. Yet that will virtually be
the effect of dismissing the bill, no other person than Bartlett as-
serting any title to it; Wiswall, who it appears was made a par-
ty to the bill, not having answered it, and asserting no title to the
fund. It is therefore ordered, that the decree heretofore made,
be set aside — that the Chancellor's decree be in all things affirm-
ed, except so far as it denies the right of Bartlett & Waring to
compensation out of the judgment against Cullum ; and a decree
will be here rendered, giving to Bartlett, who has succeeded to
the rights of Bartlett &. Waring, a priority in the payment of his
claim, and the residue to Pratt, as assignee of Casey & Co. Let
the costs of this Court, and the Court below, be paid out of the
fund.
SHRADER V. WALKER, ADM'R, ET AL.
1. A bill to enjoin a judgment, should be filed in a Court of Chancery of the
county in which the judgment was obtained, and caimotbe exhibited else-
where, unless the party interested in the recovery at law, will allow the
litigation to be had in another county. If such bill be filed in an unpro-
per county, it may be dismissed on defendant's motion.
2. Semble : A sheriflTis not a necessary, or proper party, to a biU for an in-
junction, merely because he has in his hands the execution sought to be
enjoined.
Writ of Error to the Court of Chancery sitting in Shelby.
The defendant in error, as the administrator of Agnus Black,
recovered a judgment against James Clark, in the Circuit Court
of Benton ; Clark filed his bill in the Chancery Court, which was
then holden at Talladega, for the county of Benton among others,
JUNE TERM, 1845. 245
Shrader v. Walker, Adm'r, et al.
obtained an injunction, and gave a bond for the prosecution of
the same, which was deposited with the Register of th^t Court,
to which the name of the plaintiff in error was subscribed, as
one of the sureties. It is alledged that the bill of Clark, upon a
reorganization of the Chancery districts, was, together with all
the papers in that cause, transferred to the Chancery Court of
Benton, and there finally disposed of, by dissolving the injunction,
and dismissing the bill with six per cent, damages, and costs, and
execution ordered to issue against the complainant therein, and
all whose names appear to the injunction bond, as his sureties.
An execution was accordingly issued, against the plaintiff in
error, with the other obligors in the bond, and delivered to the
sheriff of Shelby, (in which county the plaintiff resides,) to enjoin
which he obtained an order, gave bond with surety, for the suc-
cessful prosecution of the injunction, and filed his bill in the Chan-
cery Court of Shelby. The ground of equity set up, is, that the
complainant's name was forged to the bond as Clark's surety,
and that he was ignorant of the forgery, until the sheriff of Shel-
by demanded the money of him upon the execution. The de-
fendants to the bill are, T. A. Walker, John Griffin, and Jas. W.
Poe, of Benton, the two latter of whom were sureties in the in-
junction bond, James Clark, who has removed from this State, the
Register of the Chancery Court of Talladega, and the sheriff of
Shelby.
The bill was dismissed by the Chancellor, upon defendant's
motion, on the ground that it should have been filed in Benton.
W. P. Chilton, for the plaintiff in error. The bill has equity.
[5 Ala. Rep. 65 ; 6 id. 492 ; 12 Wheat. Rep. 64.]
T. A. Walker, for the defendants, insisted that the bill was
properly dismissed; that if it contains equity, it should have been
filed in Benton. [Story's Eq. Plead. 487-8-9 ; 1 J. J. Marsh.
Rep. 474-5-6 ; 4 id. 407-8-9 ; 2 Litt Rep. 86 ; 1 Dana's Rep.
109.]
COLLIER, C. J.— The act of December, 1841, divides the
State into forty Chancery districts, and provides that all causes
pending in the Chancery Courts, at the time of its passage, shall,
on the application of either complainant or defendant, be trans-
246 ALABAMA.
Shrader v. Walker, Adm'r. et al.
ferred to the district in which the defendant resides, &c. Pro-
vided, That it shall be lawful for all causes now pending in any
Chancery Court, to be and continue in such Court, and be there
disposed of, in the same manner as they would have been, if this
act had not been passed ; unless an order be made for their trans-
fer to some other Court, as is herein above provided for." [Clay's
Dig. 344, § 2, 348, § 1 1.] This enactment very clearly indicates
that it is not allowable to bring suits in Chancery, in any county
where it may suit the inclination, or interest, of the complainant
to file his bill, without reference to its subject matter, or the resi-
dence of the defendant. The chief object to be effected by di-
viding the State into so many districts, was to make the admin-
istration of justice as little oppressive as possible, by bringing the
Court near to the residence of the suitor. So strongly was this
object impressed upon the legislature, that the law was not left to
operate prospectively, but it was provided, as we have seen, that
suits then pending, might, upon the application of either party, be
transferred to the county of the defendant's residence.
It clearly results, from the act cited, that the suit could not be
prosecuted in Shelby, without the assent of Walker, the princi-
pal defendant. The sheriff of that county is improperly made a
party — it is not pretended that he has an interest in the contro-
versy, or is in any manner connected with it, except as an exe-
cutive officer, he was required to make the money on the exe-
cution.
The question then, is, should this case have been transferred
to Benton, instead of being dismissed. If it was instituted in a
county in which the Court could not take jurisdiction of it against
the consent of the parties, we cannot see how it could have trans-
ferred it without the same consent. The bill was filed a year
or two after the act of 1841 was passed ; and independent of its
provisions, was not, perhaps, exhibited in the proper court ; but
the spirit and intention of the act, if not its terms, put this question
beyond serious controversy.
The case of Lemaster v. Lain, 1 Dana's Rep. 109, is a direct
authority in point, and shows that a bill to enjoin a judgment at
law, must be filed in the Chancery Court of the county in which
the judgment was rendered. This has been the practice in this
State, ever since the organization of our courts, and we think
rests upon sound principle. If the law were otherwise, suitors
JUNE TERM, 1845. 247
Tankersley v. J. & A. Graham.
might be put to great inconvenience, by being compelled to de-
fend bills for injunction in one extreme of the State, when the judg-
ment enjoined was rendered in the other.
Let the decree of the Chancellor be affirmed.
TANKERSLEY v. J. &, A. GRAHAM.
1. The contract evidenced by a blank indorsement, is ascertained by the
law, and cannot be modified or changed by parol evidence.
2. When evidence is given to show, that the condition of the indorsement
of a note, was the sale of lands, and proof is also given, that the lands had
been patented to another, whose heirs were suing the defendants for a re-
covery, the evidence of the patent and suit may properly be excluded from
the jury, unless an eviction is also shewn.
3. When an agent was employed to sell land, and took from the purchaser
the note of another individual, indorsed by the purchaser, it is no defence
in a suit on the indorsement, in the name of the agent, to show, that the
principal has received the amount of the purchase money, unless it is also
shown, that it came from the maker or indorser of the note. The agent
paying the money to his principal, acquired such an interest in the note as
to entitle him to sue upon it
, Writ of error to the Circuit Court of Sumter.
Assumpsit by the Grahams against Tankersley, as their regu-
lar indorsee of a note made by James A. Terry, Stephen Regis-
ter, and John W. Hawthorn, payable to one Philip Jones, and
by the latter delivered to the defendant, who indorsed it to the
plaintiff.
At the trial, after the plaintiffs had made out a case, to charge
the defendant j9nwa/acie, he offered parol evidence, conducing to
show, that the consideration of the indorsement was to provide
the payment of purchase money for a fraction of land, bought by
the defendant of one Susannah McNiel, and that the indorsement
was made to Alexander Graham, as her agent. Also, that the
248 ALABAxMA.
Tankersley v. J. & A. Graham.
defendant refused to indorse the note, or to pay for the land, un-
less it should be agreed, that he was not to be held liable on his
indorsement, in the event that he did not get a good title for the
land, or if a better title took it ; and that the indorsement was
made on these terms. Defendent also proposed to show a patent
from the General Land Office to one Green, long issued, before
this action was brought, and that his heirs were then suing to re-
cover the land.
The Court ruled, that the undertaking of the defendant by his
indorsement, was, to pay the note, if the makers were duly pros-
ecuted to insolvency, and that so much of the testimony as went
to vary this undertaking, was inadmissible, and ruled it out ; and
refused to permit evidence of the pendency of the action by the
heirs of Green.
There was also evidence, by means of the deposition of Su-
sannah McNiel, brought out by the plaintiff's cross examination,
that she had been fully paid the purchase money, for said land,
before the institution of this suit. The judgment against the ma-
kers of the note, was shown by the plaintiffs, to be unsatisfied
upon the record, and they also offered evidence conducing to
show, that the note was indorsed in consideration of purchase
money due for different lands, bought of Zachariah Graham.
There also was proof that the defendant took, and has since had
possession, under the purchase from Mrs. McNiel, and also from
B. Graham.
The Court charged the jury, that their first inquiry was, as to
Tankersley's undertaking, and that was,thatif suit was brought to
the first Court, and the makers prosecuted to insolvency, he would
pay. This had been done. Second — that if the indorsement
was made in consideration of a land purchase from Mrs. McNiel,
and the defendant took, and has had the possession under her, he
cannot defend at law ; that although Mrs. McNiel has received
payment, for the land, that did not discharge Tankersley, unless
he produced evidence that he had paid the note ; or that the ma-
kers had done so.
The defendant requested the Court to charge, that if the jury
believed the consideration for the indorsement, was purchase mo-
ney due for lands, bought by the defendant of Mrs. McNiel, and
that the transfer was to Alexsinder Graham as her agent; and they
also believed that the whole of the purchase money had been
JUNE TERM, 1845. 249
Tankersley v. J. & A. Graham.
paid to Mrs. McNiel, the presumption was, that the defendant
had paid it, and if so, he could not be held liable on the note.
This was refused, and the jury instructed, that the defendant
must prove, that he had paid the note, before he could be discharged
from it.
The defendant requested the Court also to charge the jury,
that if they believed that plaintiffs had paid the purchase money
to Mrs. McNiel, without the defendant's request, the note could
not be recovered on, nor could they recover for money had and
received, unless they paid by the defendant's request. This was
refused, and the jury instructed that no payment by Graham could
satisfy the defendant's liability, although without his knowledge.
The defendant also requested the Court to charge, that if the
jury believed that Mrs. McNiel had in any manner settled the
judgment, obtained against Register* Hawthorn, and Terry, and
thus obtained payment for the land, then the defendant was dis-
charged from his liability. This the Court refused, and charged
the jury, the proof was the other way, as the judgment against
Register, &c. was unsatisfied.
The defendant requested the further charge, that the judgment
might be settled, although not satisfied on the record, and this
was given ; and the Court further charged that the defendant's
undertaking, by the indorsement, was to the plaintiffs, and pay-
ment for land to Mrs. McNiel, would not satisfy the demand, un-
less made by Tankersley, or some one for him.
The defendant excepted to the several rulings of the Court, as
also to the refusals to charge as requested, and to those given,
and now opens all the questions arising upon the bill of excep-
tions, by his assignments of error.
R. H. Smith, for the plaintiff in error, made these points —
1. That the evidence ruled out should have been left to the
jury. [6 Conn. 315, and cases there cited ; 3 Ala. Rep. 610.]
2. The charge that the indorsement was made to the plaintiffs,
was a charge upon a fact, which question ought to have been
left to the jury to decide. It was not sustained by the evidence,
but directly against it, as that showed the indorsement was made
to Graham, as the agent of'Mrs. McNiel. The indorsement was
in blank, and the defendant might properly show to whom, and
for what, it was made, otherwise no defence could be set up to the
32
250 ALABAMA.
Tankersley v. J. & A. Graham.
indorsement, for the want of ascertaining the surrounding circum-
stances. In this connection, the modification of the charge as
requested in the third instance, was an invasion of the proper
functions of the jury.
3. Upon the supposition that the indorsement was made to
Mrs. McNiel for the land, and that she had been paid the pur-
chase money, the Court erred in the charges given, as the pay-
ment left no consideration for the indorsement, and re-invested
the defendant with the title to the note. [Chitty on Bills, 248,
250 ; 2 Kent's Com. 616 ; 8 Term, 310.]
Hair, contra, argued —
1. That the attempt of the defendant to defeat this action, by
showing that Mrs. McNiel had been paid for the land sold, with-
out connecting the makers of the note, or the defendant, with the
payment, was to vary the effect of the written contract. [Pay-
sant V. Ware, 1 Ala. Rep. N. S. 160.]
2. If the defendant remains in possession of the land, it is un-
important whether the plaintiff had title or otherwise. [Clements
V. Loggins, 1 Ala. Rep. N. S. 622 i Wilson v. Jordon, 3 S. «& P.
92 ; Dunn v. White, ib. 645.]
GOLDTHWAITE,J.— 1. The defendant in the Court be-
low, seems to have placed his defence, in the first instance, upon
the ground, that he was entitled to show that his blank indorse-
ment, upon which the suit against him is founded, was intended,
and agreed upon, as a special contract, not to be enforced against
him, if he did not get a good title for the land sold him ; or if a
better title took it from him. In this view of his liability, he of-
fered to show that one Green had the government title, and that
his heirs were seeking to recover the land from him. So far as
this evidence had the effect to vary or change the contract, as-
certained by the law, from the blank indorsement, we think it was
properly excluded from the jury. In several cases we have en-
deavored to show, that the contracts imported by these irregular
blank indorsements, are ofa fixed, ascertained character, govern-
ed chiefly by the nature of the instruments indorsed. [Jordon v.
Garnctt, 3 Ala. Rep. 610 ; Milton v. 'Oe Yampert, ib. 648.] Af-
ter the legal effect of these irregular blank indorsements is as-
certained, they fall within precisely the same rules, which ob-
JUNE TERM, 1845. 251
Tankersley v. J. & A. Graham.
tain as to such as are perfect in their nature, and are alike inca-
pable of explanation, or modification by parol evidence. In Som-
erville v. Stephenson, 3 Stewart, 271, it was held by this Court,
that the contract evidenced by the general assignment of a spe-
cialty, could not be varied by parol evidence, as it had a specific
legal import. The same doctrine was held in Hightower v.
Ivy, 2 Porter, 308, in relation to the indorsement of a note. To
the same effect is Dupey v. Gray, Minor, 357 ; Free v. Hawkins,
8 Taunt. 92. These cases, it is true, seem to be indorsements
which were filled up ; but it is difficult, in principle, to perceive
how any distinction can be drawn, when the indorsement is blank,
for in either case, the contract has the same definite legal meaning,
and the same evils will flow from permitting the legal effect to be
varied. The case of House v. Graham, 3 Camp, 57, was the
case of a blank indorsement, and the same rule was considered
applicable. We are not unaware, that there are many decisions
to the contrary of this, in the American Courts. [See Cowen «fc
Hill's Notes, 1473, and Dean v. Hale, 17 Wend. 214.] But the
decisions of our own Courts have too firmly established a con-
trary principle, for us to depart from them, even if we did not en-
tirely concur in their correctness.
2. So far as the evidence went to show the consideration of the
indorsement, it was proper enough, and seems to have been con-
sidered by the Court below; but the attempt to show a failure
of the consideration having failed, in consequence of there being
no proof that the defendant had been evicted, the proof with re-
spect to Green's patent, and the suit by his heirs, was properly
rejected, as without eviction, these facts constituted no defence.
[Cullum V. State Bank, 4 Ala. Rep. 21.]
3. The othe points in the case seem to offer no defence to the
action. If, as one of the instructions asked for seems to suppose,
Graham acted as the agent of Mrs. McNiel, in making the sale,
and the plaintiffs have since paid her the price agreed to be paid
for it, they have thereby acquired an interest in this note, which
cannot be defeated, except by showing a failure of the considera-
tion, for the indorsement, or a payment of the note by the maker,
or indorsers. Such is the effect of all the instructions given, and
we are unable to see any error in the refusals of those requested.
The result of what we have said is, the affirmance of the judg-
ment.
358 ALABAMA.
Dobson, et aJ. v. Dickson, use.
DOBSON, ET AL. v. DICKSON, USE, &c.
1. Where the clerk of the Court, in entering judgment, commits an error by
confounding two suits, it may betunended nunc pro tunc.
2. Upon certiorari, judgment may be entered against a party to the origi-
nal judgment, who did not join in the bond to obtain the writ of caiuyrari.
Error to the Circuit Court of Randolph.
This proceeding was commenced before a justice of the peace,
by the defendant-in error, and was carried by certiorari to the
Circuit Court of Randolph, on the petition of the plaintiffs in
error.
From the record of the judgment, certified by the justice, it
appears that a judgment was rendered by him, for the defend-
ant, against the plaintiff in error, for $49 62 1-2, besides costs.
A statement of the cause of action being filed, at the spring
term, 1842, the following entry was made :
Charles A. Dickson, for the use of "^
Ransom Kitchens, I
vs. I Spring Term, 1842.
John Dobson, Matthew Dunklin, J
This day came the plaintiflT, by his attorney, and the death of
Ransom Kitchens, the usee, being suggested, and Louisa Kit-
chens and Benjamin Kitchens, adm'r of Ransom Kitchens, be-
ing made parties, by motion to the Court, and the defendants be-
ing solemnly called, came not, but made default. It is therefore
considered by the Court, that the plaintiff recover of the defend-
ant, the sum of one hundred and eighteen dollars damages,
&c. &c.
At the fall term, 1843, the following entry appears :
Charles A. Dickson, for the use of Joseph Edge, ) This day
vs. > came the par-
John Dobson, Matthew Dunkin, Croft Clark. 3 ties by their
attorneys, and it appearing to the satisfaction of the Court, by
legal and proper evidence, that the judgment entry in this case,
made at the spring term, 1842, of this Court, is incorrect, being
JUNE TERM, 1845. 25S
Doe ex dem. Caldwell and Wife, et al v. Thorp, et al.
in favor of the wrong usee, and for an incorrect amount, on plain-
tifTs application, leave is given to make a correct entry of the
judgment, nunc pro tunc. Here follows the entry of judgment
for $54 91.
The assignments of error are, the amendment of the judgment
and the rendition of judgment against Dobson, who did not join
in the certiorari.
S. F. Rice and T. D. Clarke, for plaintiff.
ORMOND, J. — We cannot perceive, from any thing in the
record, that the amendment was not fully authorized. It is evi-
dent from the record, that the clerk, in entering up the judgment,
had connected this with another case, and thus produced the
confusion that ensued. The parties appeared when the amend-
ment was made, and if there was no sufficient evidence by which
to amend the record, it should haye been shown by bill of excep-
tions.
The judgment was properly entered against all the parties to
the original judgment, before the justice of the peace, although
one of them did not unite in the bond for the certiorari.
Let the judgment be affirmed.
DOE EX DEM. CALDWELL AND WIFE, ET AL. v.
THORP, ET AL.
1. The proviso to the 7th section of the act of 1802, limiting the " right or
title of entry upon any lands," &c. which declares, " that the time during
which the person who hath, or shall have such right or title of entry, shall
have been under the age of twenty-one jeax8,feme covert, or insane, shall
not be taken or computed as part of the same limited period of twenty
years," does not except from the operation of the statute, a disability oc-
curring after the statute has begun to run. It applies to a disability ex-
isting at the time the right accrued, and if that disability be once remov-
254 ALABAMA.
Doe ex dem. Caldwell and Wife, et al. v. Thorp, at al.
ed, the time must continue to run, notwithstanding any subsequent disa-
bility, either voluntary or involuntary.
Writ of Error to the Circuit Court of Mobile.
This was an action of ejectment, at the suit of the plaintiffs, for
the "recovery of one lot, or parcel of land, being number nine, of
square number one, of lots and lands sold by James Innerarity,
to William H. Robertson, lying, &c. The defendants were let
in to defend, upon entering into the usual consent rule ; a verdict
was returned for the defendant, and judgment was rendered ac-
cordingly.
On the trial, the plaintiff excepted to the ruling of the Court,
The bill of exceptions recites, that the plaintiff proved title in Se-
bastian Shade, their ancestor, in the year 1818; that Shade died
in 1820, leaving as his only heirs, Caroline and Matilda, who were
then minors, and since intermarried, with two of their co-plain-
tiffs.
The defendant proved an adverse possession, under color of
title, commencing in 1818, and continuing to the beginning of the
year 1843.
The Court charged the jury, that if the statute of limitations
commenced running in the life-time of the ancestor, the period of
the minority of his daughters, Carolhie and Matilda, " was not to
be taken and computed as part of the time limited by the statute
for commencing the action."
The plaintiff prayed the Court to charge the jury, that the sta-
tute allowed thirty years after the accrual of the right, or title, or
cause of action, to bring the action of ejectment ; which charge
the Court refused to give, and charged the jury, that the time
limited by the statute for bringing the action of ejectment is
twenty years, when defendant holds under color of title.
J. A. Campbell, for the plaintiff in error. The statute of lim-
itations was suspended during the minority of the daughters of
Sebastian Shade. The proviso of the statute applicable to the
case, is unlike any thing found in the 4th Henry the 7th upon fines,
which was discussed in Stowell v. Zouch, Plow. Rep. 353, and
bears no resemblance to any clause in the statute of James, which
has been introduced injp the legislatisn of most of the States.
JUNE TERM, 1845. 2S5
Doe ex dem. Caldwell and Wife, et al. v. Thorp, et al.
[Sugd. on Ven. 460.] The only decisions which are in pouit,
are those of Kentucky, 4 Bibb's Rep. 43, 446 ; 6 Monr. Rep. 59.
See also, 3 Monr. Rep. 42; 3 Johns. Ch. Rep. 131.
Our statute expressly declares, that the time « during which"
"the person who hath, or shall have, such right or title of entry,"
shall have been a minor, shall not be taken as part of the twenty
years. These terms cannot be satisfied without allowing each
party who comes in by descent, to deduct the period of his infan-
cy from the operation of the act. Arguments drawn from poli-
cy, cannot be allowed to exert any influence, when the language
employed in the statute is plain, and unambiguous. The ques-
tion of policy is referable to the legislative, and it must be intend-
ed, has been passed on by that department of the government,
and the public inconvenience was not supposed sufficient to out-
weigh the injustice of concluding infants, by an act of limitations.
T!'he provisos to the different sections of the statute, sanction this
argument. Why should the Legislature have employed a va-
riety of language to express the same idea ? Why should the
statutes of other States have been so closely copied in all particu-
lars, save in this, if the Legislature had not intended to depart
from the policy of these statutes, in respect to the preservation
of the rights of those who labored, or might labor under disabili-
ties. He also cited the opinion of the minority of the judges in
Stowell v. Zouch; supra.
E. S. Dargan, for the defendant. When the statute of limi-
tations once begins to run, it does not stop, nor is it suspended in
its course by any subsequent intervening disability. [Adams on
Eject. 59; 15 Johns. Rep. 169; 18 Johns. Rep, 45.] It is what
it has been frequently called, a statute of repose. [5 Pet. Rep.
470.]
All statutes of limitations makes provision in favor of persons
laboring under disabilities ; but if the statute begins to run, it is
not impeded by any disability occurring subsequently. Our sta-
tute contains a proviso in favor of infants, &c. but differs from
the English statute in this, instead of allowing ten years after the
removal of the disability, it deducts the time of its continuance,
making the statute to begin to run, after the disability is remov-
ed, and requiring twenty years to elapse before the bar is com-
plete. If the exceptions in the English statute will not suspend
256 ALABAMA.
Doe ex dem. Caldwell and Wife, et al. v. Thorp et al.
its operation after it has once commenced, such an effect cannot
be accorded to the proviso in our statute.
There are two statutes of limitation in Kentucky, the one con-
tains a provision by which it is suspended in certain cases by ex-
press words ; the other employs different terms. This being
the case, it is fairly inferable that the Legislature intended the lat-
ter act should be subject to the known rule of construction ; and
that to avoid this rule in respect to the former, language of un-
ambiguous import was used.
COLLIER, C. J.— The statute of Fines, 4 Hen. 7 ch. 24, as
well as the statute of limitations, 21 Jac. 1, ch. 16, contain a sav-
ing clause with respect to those who labor under disabilities. See
Blanshard on the Sta. of Lim. 8, 114. By the former, it is pro-
vided, that an ejectment may be brought within five years after
fine levied, with proclamation, if the right of entry had then ac-
crued ; unless the party entitled, labor under some one of the
disabilities stated in the act ; in that case, five years are al-
lowed after the disabilities cease. The latter enactment pro-
vides, that the person having a right of entry upon lands, must
pursue his remedy within twenty years after the right accrues,
unless he comes within the saving clause in respect to infants, &c.
See Id. 8, 18 ; 15 Viner's Ab. 101 to 105.
It is said to be a settled rule, and applies, without exception,
to all the statutes of limitation, that when the statute has once
begun to run, it will continue to run, notwithstanding any subse-
quent disability. As if a fine be levied with proclamation, and
A has a present, or future right of entry, and becomes free from
disabilities, after a lawful title has once vested in him, to enter or
claim the possession, the fine will continue to run against him,
his heirs, &c., notwithstanding he rhay afterwards become disa-
bled, and notwithstanding he die, leaving heirs, &c., who are in-
fants, or laboring under some disability. But if the right first
accrue to a person who is at that time under a disability, the fine
shall not begin to run against him, until he is free from disability;
and successive disabilities, it is said, are a protection against be-
ing barred by the statute ; but any cessation of disability, it is
held, will call the statute into operation, and no cause subsequent-
ly accruing will arrest its action. [Blanshard on the Sta. of
Lira. 19.]
JUNE TERM, 1845. 867
Doe ex dem. Caldwell and Wife, et al. v. Thorp et al.
Wiikinson in his treatise upon the statute, remarks, that the 21
Jac. l,was passed to fix a shorter definite period than the com-
mon law presumption, from length of time allowed as a bar to a
recovery ; and though since the statute, judges seem always to
have favored the right of the plaintiff, where the debt appeared
to have been justly due, yet in an early case on the statute of
fines, followed by others on the other statutes of limitations, it
has been uniformly held, that where any of the statutes of limita-
tion had once began to run, no subsequent disability would pre-
vent its running. There is no calculation, says he, how far the
time might be extended, if several disabilities had been allowed.
This rule has been applied to different statutes of limitation, though
they are in very different terms, yet as observed by Lord Ten-
terden, the several statutes of limitation being in pari materia^
ought to receive a uniform construction, notwithstanding any
slight variation of phrase, for their object and intention is the
same. See Wilk. on Sta. of Lim. 51 ; Stowell v. Lord Zouch,
Plowd. Rep. 374 ; Doe ex dem. Duroure v. Jones, 4 D. & East's
Rep. 311 ; Doe ex dem. Griggs and another v. Shane, 4 D. &
East's Rep. 306-7 ; Doe v. Jesson, 6 East's Rep. 80 ; Cotterell v.
Dutton, 4 Taunt. Rep. 826 ; Murray v.E. L Company, 5 Bamw.
& A. Rep. 215 ; 1 Lomax's Dig. 627 to 630.
In Thompson, et al. v. Smith, 7 Sergt. & R. Rep. 209, it ap-
pears that the Pennsylvania statute in respect to lands, was twen-
ty-one years, with a proviso, that persons within the age of twen-
ty-one years, &c. may, notwithstanding the expiration of the time
prescribed, bring their actions within ten years after the removal
of the disability. Chief Justice Tilghman said, " that the limita-
tion of actions for the recovery of real property, is essential to
the peace of society, and therefore the construction of statutes on
that subject, ought not to be extended by equity, so as to contra-
vene the main object of the Legislature, by keeping up the un-
certainty of title, for a great and indefinite length of time." Again,
" The ten years are to be counted from the time of the ceasing
or removing of the disability, which existed when the title first
accrued. If other disabilities, accruing afterwards, were to be
regarded ; the right of action might be saved for centuries. The
descent of the title upon infant females, and the marriage of those
females, under the age of twenty-one, might succeed each other
ad infinitum." Such a construction would militate " with the .
33
258 ALABAMA.
Doe ex dem Caldwell and Wife, et al. v. Thorp, et al.
main object of the law, and is not agreeable to its words. It is
contrary also to the current, as well as the spirit of the authori-
ties." See also, Eaton v. Sandford, 2 Day's Rep. 523 ; Peck v.
Randall, 1 Johns, Rep. 165 ; Read v. Markle, 3 Id. 523; Sugden
on Vend. 461 to 464, ed of 1836 ; Den v. Mulford, 1 Hayw. Rep.
311 ; Dow V. Warren, 6 Mass. Rep. 328 ; Eager v. Munroe, 4
id. 182 ; Griswold v. Butler, 3 Conn. Rep. 227 ; Demarest v.
Wyncoop, 3 Johns. Ch. Rep. 129; Walden v. Gratz's heirs, 1
Wheat. Rep. 292-6; Hudson v. Hudson, 6 Munf. Rep. 352;
Faysoux v. Prayther, 1 Nott & McC. Rep. 296 ; Jackson v.
Wheat. 18 Johns. Rep. 40.
It is insisted by the plaintiff in error, that although the con-
struction placed upon the statutes of limitation in England, and
some of the States,to be such as has been shown, yet the phrase-
ology employed in our enactments will not admit of a similar in-
terpretation. The seventh section of the act of 1 802, enacts,
that " no person who hath, or hereafter may have, any right or
title of entry, upon any lands, tenements, or hereditaments, shall
make an entry therein, but within twenty years, next after such
right or title shall have accrued, and sbch person shall be barred
from any entry afterwards : Provided, always. That the time
during which the person who hath, or shall have, such right or
title of entry, shall have been under the age of twenty-one years,
feme covert, or insane, shall not be taken or computed as part of
the same limited period of twenty years." [Clay's Digest, 327,
§83.]
By thelst section of theact ofl843,itis enacted,that where lands
are sold under the decree of a Court of Chancery, to satisfy a mort-
gage, or other incumbrance, all rights of a person not a party to
the decree, who shall claim under the mortgagor, &;c. shall be for-
. ever barred, unless the suit for redemption be commenced with-
in five years from the execution of the decree. The second sec-
tion is as follows : " All actions for recovery of lands, tenements,
and hereditaments, in this State, shall be brought within ten years
after the accrual of the cause of action, and not after : Provided,
That five years be allowed, under both sections of thrs act, for
infants,/emes covert, insane persons and lunatics, after the termi-
nation of theu- disabilities." [Clay's Dig. 329, § 93.]
^\ie proviso to the limitation of act of 21 Jac. 1, so far as it re-
lates to actions for the recovery of real estate, provides, « that if
JUNE TERM, 1845. 259
Doe ex dem. Caldwell and Wife, et al. v. Thorp, et al.
any person," " that hath, or shall have such right or title of entry,"
"be at the time of the said right or title, first descended, accrued,
come, or fallen, within the age of twenty-one years," &c. "that
then such person," &c, shall, notwithstanding the expiration of
twenty years, bring action, &c.: so as such person, &c. shall, with-
in ten years next after his full age, &c. sue for the same, and at
no time after the said ten years. There is also a saving clause
to the sections of the statute, in respect to personal actions ; it
provides, that if the person entitled, "be at the time of any such
cause of action given, or accrued, fallen, or come within the age
of twenty-one years," &:c. that then, such person may bring the
same action, within such time "as other persons having no such
impediment, should have done."
In Kentucky, there is a statute, limiting the time of entry into
lands, which provides, that if any person entitled, shall be <• un-
der the age of twenty-one years," &c. " at the time such right or
title accrued, or coming to them ; every such person, and his or
her heirs, shall and may, notwithstanding the said twenty years
are, or shall be expired, bring or maintain his action, or make his
entries within ten years next after such disabilities removed, or
death of the person so disabled, and not afterwards." In respect
to this statute it has been decided, that if it begins to run against
the ancestor, but by his death the land descends to his heirs, who
are infants, the statute does not run on, but the infants shall have
the time allowed by the statute, after arriving at full age, to bring
their action. There is a difference, say the Court of Appeals of
Kentucky, in the language of the English statute and our own on
this subject. The English statute saves the right of infants, &c.
who were such "at the time when the said right, or title, Jirst
descended, accrued, or fallen." From the expressions used in
the saving clause, it obviously relates to the time when the right
first accrued, and the Courts of England have, therefore, proper-
ly extended it only to the persons to whom the right then accrued,
and not to those to whom it should afterwards come : so that on
the death of a person in whose life the statute first began to run,
his heir must enter within the residue of the period allowed for
making the entry, although he labored under a disability at the
death of his ancestor. But the saving in the Kentucky statute
evidently relates to the time when the right accrues, or comes to
those laboring under the disabilities therein mentioned ; not tq
260 ALABAMA.
Doe ex dem. Caldwell and Wife, et al. v. Thorp, et al.
the time when the r'lghtjirst accrued to those under whom they
derive their right. [Machin v. May, et al. 4 Bibb's Rep. 44 ; Sent-
ney, et al. v. Overton, 4 Bibb's Rep. 446 ; Mclntire's Heirs v.
Funk's Heirs, 5 Litt. Rep. 33; South's Heirs v. Thomas' Heirs,
7 Monroe's Rep. 61.]
In Beauchamp v. Mudd, 2 Bibb's Rep. 538, the Court adopt-
ed the English construction of the 21 Jac. 1, in regard to per-
sonal actions, because, as it was said, " the saving, or proviso" in
such cases, was expressed in language different from that used
where suits for the realty are limited as to time.
The only case that has come under our notice, which seems to
maintain, that a succession of disabilities can be united, so as to
prevent the bar of the statute, is, Eaton v. Spndford, 2 Day's Rep.
523. That case was greatly weakened as an authority, by what
was said in Bush and wife, et al. v. Bradley, 4 Day's Rep. 298,
and was overruled in Bunco v. Wolcott, 2 Conn. Rep. 27. True,
the saving in the Connecticut statute confines the disability to the
person entitled " at the time of the said right or title, first descend-
ed, accrued," &c. in the very terms of the 21 Jac. 1, but no par-
ticular stress seems to have been laid upon the word « first." In
the last case cited, the proviso of the statute, it was said, "regards
solely and exclusively the disabilities existing at the time of the
right, or title, first accrued ;" and thus to construe it, was in ac-
cordance with its terms, with private justice and public conve-
nience. It allows sufficient scope for the operation of the act,
while "it avoids the intolerable inconvenience of accumulated
successive disabilities, which, for an interminable period, might
subvert titles apparently well established, and produce the most
ruinous instability. And what is of no small importance, is in
harmony with the decisions of other States."
In Walden v. The Heirs of Gratz, 1 Wheat. Rep. 292, 297, it
was contended that the statute of limitations of Kentucky, to
which we have referred, will stop, although it had begun to run,
if the title passes to a person under any legal disability, and re-
commences after such disability shall be removed. This con-
struction, say the Court, " is not justified by the words of the sta-
tute. Its language does not vary essentially from the language
of the statute of James, the construction of which has been well
settled ; and it is to be construed as that statute, and all other
acts of limitation founded on it have been construed."
JUNE TERM, 1845. Wi
Doe ex dem. Caldwell and Wife, et al. v. Thorp, et al.
We have been thus particular in noticing the act of limitations
of Kentucky, and the decisions in respect to it, as it was insisted,
at the argument, that it was materially variant from the statute of
21 James, 1. With all deference, we must say, that in contrast-
ing these enactments, the Court of Appeals of Kentucky have
given to unessential variation in language, a potency which it can-
not claim, upon any just rules of interpretation ; and that what
was said in the case cited from the first of Wheaton, is entirely
consonant to our view of the statutes, if it were necessary to ex-
press an opinion.
The case at bar does not come within the act of 1843 ; for if it
be competent for the Legislature to prescribe a limitation, to bar
pending suits, they have expressly disavowed any such intention
by providing, " that no suit shall be barred by the operation of
this act within five years from its passage." Here the action was
commenced previous to 1843, and the case must be considered
in reference to the statute of 1802. The saving within which
it is attempted to bring the plaintiff, is expressed in terms some-
what different from that contained in the English statute — -it is not
so verbose ; yet it is apprehended, that in respect to the question
before us, it must receive the same construction. True it does
not in totidem verbis, limit the disability to the person who hath
the "right or title of entry, or shall be, at the time of the said right
or title first descended, accrued, come or fallen, within the age of
twenty-one years," &c.; but it declares, " that the time during
which the person, who hath, or shall have, such right or title of
entry, shall have been under the age of twenty-one," <fec. « shall
not be taken or computed," &c. It is clear that the person here
referred to, is him against whom the statute begins to run ; as to
persons coming in subsequently, there is no exception in their fa-
vor. The saving expends itself upon the person first entitled to
an action, if he is in the predicament to require the benefit of it ;
and if the "disability be once removed, the time must continue to
run, notwithstanding any subsequent disability, either voluntary
or involuntary.'' Ashurst, J. in Doe ex dem. Count Duroure v.
Jones, 4 T. Rep. 300. This conclusion is in perfect harmony
with the decisions in England, and the several States, with the
solitary exception that has been noted; besides it is promotive of
the policy of the statute, and makes it what all statutes of limi-
tation are intended to be, '• statutes of repose." Its tendency is
262 ALABAMA.
Jones V. Jones.
to quiet titles, by prescribing a limit to litigation, instead of de-
ferring it to an uncertain, or unreasonable time in the future.
No objection was taken at the argument, or in the assignment
of errors, to the refusal of the Circuit Judge, to charge the jury
as prayed by the plaintiff's counsel ; we will not therefore con-
sider the question of law arising upon it. From what has been
said upon the first point, it follows that the judgment must be af-
firmed.
JONES V. JONES.
1. Proof of a contract by which the plaintiff was to erect a dwelling house,
&c., on lands of the defendant's intestate, and occupy the same free of
charge, during pleasure, or remove from it, the defendant's intestate to
pay for the CEirpenter's work and materials furnished by the plaintiff, upon
his removal, will warrant a recovery on the common counts, although the
promise and liability is therein stated as arising in the lifetime of the in-
testate.
Writ of error to the County Court of Butler.
Assumpsit, on the common counts, by Joseph Jones against
Frances Jones, as the administratrix of James Jones, for a debt
due from the intestate. The promise to pay is alledged to have
been made by the intestate in his hfe time, and by the adminis-
tratrix since his death.
At the trial, the plaintiff showed, that in the year 1839 or '40,
an agreement was made between him and the intestate, by which
the plaintiff was to put up a dwelling house, and out houses, on
lands of the intestate, with hands furnished by both ; that the
plaintiff was to furnish such lumber and other materials, (that is,
sawed lumber, nails, locks, &c.) as could not be procured from
the forest, by laborers. The plaintiff was to pay for such work
done on the house, and other buildings, as was required to be done
by a carpenter. He was to live in the house, free from charge,
JUNE TERM, 1845. 263
Jones V. Jones.
during his pleasure, or remove from it. The intestate was to
pay back to the plaintiff, the amount he should expend for carpen-
tei^s work, and the amount paid for materials furnished by him.
The amount so paid was shown in evidence. It was also proved,
that the intestate died in the year 1842 or '3, and that the plaintiff,
after the intestate died, removed from the house, before the com-
mencement of the suit.
On this state of proof, the Court charged the jury, that the de-
mand sued for in this case, did not become due until after the in-
testate's death, and that the plaintiff could recover nothing in this
action, because the declaration is, that the demand was due be-
fore the death of the intestate.
The plaintiff excepted to this charge, and it is now assigned
as error.
Watts, for the plaintiff in error.
T. J. Judge, contra.
GOLDTHWAITE, J.— The charge given the jury is clearly
erroneous. The declaration is in the usual form, on the common
counts, showing a liability arising out of a contract in the life-
time of the intestate, and a consequent promise to pay. The ev-
idence, it is true, disclosed, that the money paid out by the plain-
tiff was not to be repaid him by the defendant's intestate, until a
certain event happened ; and before this event transpired, the in-
testate died. This state of facts does not differ, in legal effect,
from a promise to pay at a future day ; and it might as well be
insisted, that the death of the promissor before the maturity of
his promise, would impose the necessity of declaring in a special
manner. The promise is deduced from the liability to pay,
and in this case, that existed before the death of the intestate.
Let the judgment be reversed, and the cause remanded.
264 ALABAMA.
Doe ex dem. Hallett and Walker, Ex'rs, v. Forest, et als.
DOE EX DEM HALLETT AND WALKER, EX'RS. v.
FOREST, ET ALS.
1. The action of ejectment is barred by an adverse possession of twenty
years, unless the plaintiff can bring himself within some of the savings of
the proviso, of the act forbidding an entry into lands after twenty years.
2. A possession acquired under color of title, and acquiesced in for twenty
years, will bar a recovery in ejectment, although during a portion of the
time, the plaintiff in ejectment was prosecuting an application to Congress
for the confirmation of an imperfect title, derived from the crown of Spain,
to a tract of land, within which the land sued for was situate, and to which
his title was finally confirmed — he having been in possession anterior to
the alledged intrusion.
Error to the Circuit Court of Mobile.
Ejectment, by the plaintiffs in error, executors of Joshua Ken-
nedy, against the defendants in error, for a tract of land in the
city of Mobile.
The plaintiffs, to sustain their cause, introduced a translation
of the application of Thomas Price, to the Spanish authorities,
for a parcel of land in Mobile, with the orders and grants of the
Spanish authorities thereon. Also, a deed from Price to Wm. E.
Kennedy, and a deed from him to Joshua Kennedy ; also, the
proceedings before the Register and Receiver at St. Stephens,
5th vol. Am. State Papers, 126-8-9, 130, and in the 3d vol. same
work ; also, the patent certificate, and the patent from the United
States.
The plaintiff further proved, that Wm. E. Kennedy was in
possession of a portion of the Price grant in 1824, and at the
time of his death. That Joshua Kennedy died- in 1838, in pos-
session of parcels of the land in the patent claiming under it, and
that Joshua Kennedy devised his lands to his executors, the les-
sors of the plaintiffs.
The defendant, to prove his case, produced a deed from Ro-
bert Carr Love, to Charles Jimelat, dated in February, 1822, for
the lot in dispute ; a deed from Jimelat to another person, and a
deed from him to the defendant. It was also proved that the
JUNE TERM, 1845. 265
Doe ex dem. Hallett and Walker, Ex'rs, v. Forest, et al.
land was vacant, and unenclosed, until after the purchase by Jim-
elat, and that after his purchase he cleared and enclosed it in the
spring of 1822, and proved a continued possession to the time of
the trial.
The plaintiff moved the Court to charge the jury, that the evi-
dences of title, exhibited by the defendant, are not sufficient to bar
the plaintiff's claim. That the entry by Jimelat, under the deed
from Love to him, was the entry of a tresspasser, unless Love
was in possession, claiming title, and that the statute of limita-
tions afforded no protection to the defendant, claiming under him.
Instead of which, the Court instructed the jury, that if Jimelat
took possession under Love's deed, he was in under color of title,
and if he, and those claiming under him, had been in possession
twenty years before the commencement of this suit, the plaintiffs
were barred.
The plaintiffs further moved the Court to charge — 1. That
the title exhibited by the plaintiff, is superior to that of the de-
fendant.
2. That the statute of limitations did not commence running,
till the confirmation of the Price title, by the United States.
3. That the statute of limitations, of twenty years, did not bar
the plaintiffs' claim, if they find that Joshua, and William Kenne-
dy, were in possession of any of the lands in the Price claim, as-
serting title during the twenty years, which the defendants held
the lot in dispute. All of which the Court refused, and to which
the plaintiff excepted, and which he now assigns for error.
Stewart and Campbell, for the plaintiffs in error, made the
following points :
The clause of the statute forbidding an entry into lands, after
twenty years, must be construed in connection with the succeed-
ing clause of the same act, which secures the right to bring a
« possessory" action for the recovery of the lands, within thirty
years after the right or title accrued. So considered, it is evi-
dent, that if an entry be made within twenty years, the party
has two years longer within which to bring his action.
The tide of the plaintiff arises under the " Price claim," which
was a concession by Gay oso, in 1798, after his power to make
conveyances of land had been suppressed- [2 White's Recap.
245, No. 27 ; Preamble to Morale's Reg. 2 White, 234 ; and a
34
ALABAMA.
Doe ex dem. Hallett and Walker, Ex'rs, v. Forest, et al.
ratification by St. Maxent, Military Commandant at Mobile,
in 1806.] The confirmation of the claim did not take place un-
til 2d March, 1829, and the patent did not issue until 1837. The
defendant rests alone upon his possession. At the commence-
ment of this possession, (1822,) Kennedy was a suitor to the gov-
ernment, for a perfect title ; his proceedings were then pending.
No laches is imputable to the government, or any one claiming
under it, and Kennedy is entitled to be protected, during the time
the government required to examine the title.
It is said, on the other side, that Kennedy might have brought
suit upon the title obtained from Gayoso. This is denied. He
might, it is true, have sued upon his possession, acquired under
it, but not by force of the title. [13 Peters, 436, 498 ; 8 Cranch,
229.] The evidence, as well as the rights which Price acquired
under the inchoate title, became merged, and their effect declar-
ed by the patent. [7 Wheaton, 1 , 212 ; 4 id. 488 ; 6 Peters, 328 ;
7 Cranch, 359 ; Peters C. C. 291 ; 3 Peters, 337.]
That the suit could not have been maintained by Kennedy,
is evident from De la Croix v. Chamberlayne, 12 Wheaton 599,
and the cases of Hallett v. Eslava, in this Court.
Dargan, contra.
ORMOND, J. — The action of ejectment is brought to recover
the possession of lands — the superior, ultimate right or title, is
not, therefore, necessarily involved. To maintain this action, the
plaintiff must be entitled to the possession, and must consequently
have a right to enter upon the land ; when, therefore, he has, by
the lapse of time, lost this right, he cannot maintain the action.
The counsel for the plaintiff in error, not controverting this gene-
ral proposition, maintain, that although the statute forbids an en-
try after twenty years, yet, that if an entry be made within that
time, the act secures the right to bring the action, at any time
within thirty years, from the time the title accrued. This argu-
ment being founded upon the statute, it becomes necessary to con-
strue it.
The 7th section of the act of 1802, (Clay's Dig. 327, § 83,) is
as follows: "No person, who now hath, or hereafter may have,
any right, or title of entry, unto any lands, tenements, or heredit-
aments, shall make an entry therein, but within twenty years
JUNE TERM, 1845. 267
Doe ex dem. Hallett and Walker, Ex'rs, v. Forest, et al.
next after such title shall have accrued ; and such person shall
be barred from any entry afterwards, Provided^' &c.
The 9th section of the same act, (§ 85 of the Dig.) reads thus :
« Every real, possessory, ancestral, mixed or other action, for any
lands, tenements, or hereditaments, shall be brought and institu-
ted within thirty years next after the right or title thereto, or cause
of such action accrued, and not after: Provided^^ &c.
We believe it has been the general understanding, both of the
bench and bar, from the existence of the Territorial, and State
government, that an adverse possession of twenty years, would
bar an ejectment ; and if the maxim, that communis error facit
jus, is ever entitled to exert an influence, it is in the present in-
stance. The law has been thus stated, incidentally by this Court,
though we are not aware that the point has ever been expressly
raised before.
The supposed difficulty in reconciling the two clauses of the
statute, arises from the use of the terms, "possessory" and "mixed,"
in the 9th section. The common division of real actions, is into
actions " droitural,'^ and actions ^^ possessory;^' and these again
are subdivided, into other classes, not necessary to be noticed.
To the first head belongs the writ oi Right — to the last writs of
assize, writs of entry, and writs ancestral possessory. [3 Black.
Com. 175 to 197, and 1 Roscoe on Real Actions, 3.] All these
last mentioned writs, were to recover the possession, and were in
fact, as they were coWed, real possessory actions.
The actionoi ejectioaejirmae, was not originally a real action,
but was the appropriate writ, when the lessee of a term was
ejected by a stranger, to recover, not the term, but damages. [3
Black, Com. 199 ; 2 Roscoe on R. Ac. 481.] But which, in pro-
cess of time, became the common method of trying the title, where
the right of entry was lost.
The action of waste is a mixed real action, as the land was re-
covered, and damages for the injury. [3 B. Com. chap. 14.]
From this brief statement ofthe ancient common law actions for
the recovery of real property, it appears, that, properly so called,
all actions to recover the possession of land, are rea/ac/ions; and
that the modern action of ejectment, was not, at common law, a
real action. That the Legislature, in the classification of the ac-
tions which should not be barred until after thirty years, had re-
ference to the ancient common law classification, is evident from
268 ALABAMA.
Doe ex dem. Hallett and Walker, Ex'rs, v. Forest, et al.
the use of the terms, « ancestral" and « waste." The former is
without meaning, but by reference to the old common law writs,
where a different writ was necessary, when the demandant claims
in virtue of his own seizin, or possession, from that which was
proper, when! he claimed through the seizin, or possession of
his ancestor. All these distinctions, have disappeared under the
adaptation of the modern writ in ejectment, ta the trial of titles,
as it is wholly unimportant in ejectment, whether the title is de-
rived from the ancestor, or not.
The 7th section is not, in terms, a statute of limitations, and on-
ly becomes so, in ejectment, from an inability to make an entry af-
ter the lapse of twenty years from the time the title has accrued ;
whilst the object of the 9th section was to provide a statute of
limitation for real actions, adopting a portion of the statute of the
32 Henry 8, c. 2, as in the 7th section, a portion of the act of 21
James 1, c. 16, had been copied.
By the statute 4 Anne, c. 16, after an actual entry was made,
the action of ejectment must be brought within one year after,
and it has been argued that the design of our statute, taken alto-
gether, was, that after an actual entry, the party had ten years
further in which to bring his action. This construction is, we
think, untenable. The limitation of thirty years is, "after the
right and title hath accrued," and if it were conceded that a com-
mon law possessory writ, suited to the case, could be sued out
within thirty years after the title accrued, provided an actual en-
try had been made within twenty, still it is clear an action of
ejectment could not be maintained, unless the suit was commenc-
ed within twenty years; because, after that period, no entry
could be made, and therefore none could be presumed.
Our conclusion upon the whole matter is, that the action of eject-
ment is barred by an adverse possession of twenty years, un-
less it can be brought within some of the savings of the proviso.
It is further urged, that this statute did not commence running
against the plaintiffs, until after the confirmation of their claim by
the United States, and the issual of the patent authorized by the
act of confirmation. The title of the plaintiffs is derived from a
Spanish concession by Governor Gayoso, to Thomas Price, in
November, 1798, and a ratification oJfthis act by St. Maxent,the
Military Commandant at Mobile.in 1806. This claim was trans-
fen'ed by Price to William E. Kennedy, by whom it was laid
JUNE TERM, 1845. 269
Doe ex dem. Hallett and Walker, Ex'rs, v. Forest, et al.
before the board of commissioners, who, at first, reported unfa-
vorably upon it. Finally, a lavorable report was obtained, and
by the act of Congress, of 2d March, 1829, 1 Land Laws, 455,
the claim was confirmed, and in 1837, a patent issued for the
lands so confirmed.
The land lies within the lines of the patent. The defendant
derives his title by a possession of twenty years, under a deed
from one, asserting a title to the land in dispute. This question
appears to us to be settled by the decision of the last term, in the
case of Eslava v. The Heirs of Narmer, 7 Ala. Rep. 543. It
was there held, that it was not intended by the act of confirma-
tion, to legislate upon the title, further than to disavow any title
in the United States — the act is, by its terms, a mere relinquish-
ment of any title in the United States.
This argument is fully answered by the case of Eslava, at the
last Term. [7 Ala. 543.] It is supposed, that as time will not
run against the government, it will not run against the confirmee
of the government. But the government never intended by the
act of confirmation, to do more, than to relinquish any title which
might be in the United States ; and whether the confirmation be
considered a new grant, or the admission merely, that a good
title existed, derived from the Crown of Spain, in either aspect, it
was no;t intended that the act should have any retrospective ef-
fect, except as it regarded the government. This is shown by
the language in which the confirmation is couched.
The inception of the title, called the "Price claim," was an or-
der from Gov. Gayoso, in 1798, directing the petitioner, Thomas
Price, to be put in possession of the land, he solicited. On the
20th November, 1806, Price again petitioned St. Maxent, the
Commandant, to be confirmed in the possession of the land he
had obtained from Governor Gayoso, and for a further grant of
five hundred arpents, in consideration of arrears due him for his
salary, and also because of certain grants which had been made
and surveyed to other persons, within the limits of his first grant.
It also appears from the bill of exceptions, that William E. Ken-
nedy, who succeeded to the title of Price, was in possession of a
portion of the land covered by the " Price grant," as far back as
1824.
Whether the imperfect title derived from Gayoso, anterior to
ALABAMA.
Doe ex dem. Hallett and Walker, Ex'rs, v. Forest, et al.
the treaty of St. Ildefonso, was of itself sufficient, before confir-
mation by the United States, to support an action of ejectment,
we need not inquire, because it is evident that the whole merit of
the « Price claim," consists, in the supposition that the concession
of Gayoso, in 1798, and its ratification in 1806, by St. Maxent,
were genuine ; and that possession accompanied it, with asser-
tion of title by the grantee. This, Price expressly asserts in his
petition to St Maxent, stating that he had built a house upon the
land so conceded, and had resided there for several years ; and
St. Maxent, responding to the petition, says, that the facts are
within his knowledge.
The commissioners, in their reports on this claim. No. 103, of
William Crawford, and No. 3, of the Register and Receiver, all
state, especially the latter, that possession accompanied the grant,
and that it was inhabited and cultivated from 1798, the date of
the grant, *' according to the Spanish regulations." This is also
explicitly asserted by Joshua Kennedy, in his petition to the Re-
gister and Receiver of the land office at Augusta, dated 26th De-
cember, 1826, who says, "that inhabitation and cultivation were
made, according to the Spanish usages and customs.''
Now, assuming all this to be true, it is most apparent,that Ken-
nedy had such a title to the land, as would have enabled him to
have maintained a suit against a mere trespasser, and such it is
insisted we must consider the inception of the defendant's title.
The claim was confirmed, because it appeared to be genuine, and
had been possessed and cultivated, according to the Spanish usa-
ges and customs, although something had been omitted to make
the title perfect; but certainly the government did not intend, by
this concession, to cover the confirmee with its mantle, and in-
vest him with one of its sovereign attributes — that no laches should
be attributed to him, in any succeeding contest about the land, not
only during the long internal he was pressing this claim before
the government, but also long before the United States had pos-
session of the country. In a contest with an individual citizen,
about a portion of the land, the plaintiff cannot stand upon high-
er ground, than if their claim had been perfect in 1798, in which
event, it cannot be doubted, that the possession of the defendants
would have ripened into a title ; and if the fact were, (which
however is not shown upon the record,) that from the neglect to
JUNE TERM, 1845. 271
Trammel v. Simmons.
cause a survey to be made, and, the boundary thus not ascertain-
ed, the plaintiffs were unable to eject the defendants, they can de-
rive no benefit from their own laches.
Other points may arise upon the record ; we have confined our-
selves to those made in the argument. Let the judgment be af-
firmed.
TRAMMEL v. SIMMONS.
1. One who is ejected from land of which he was in possession, under pro
cess issued from a Court of Chancery, in a cause to which he was not a
party or privy, cannot, on error, avail himself of irregularities occurring in
the decree, or other part of the proceedings.
2. Semble, although Chancery may have power to put a party into possession,
of land, who purchases at a sale made under its decree, where the posses
sion is withheld by the defendant, or any one who comes mpendente lite, it
is not allowable to eject a mere stranger, having no connection with the
defendant, either immediately, or mediately.
3. The decree for the foreclosure and sale of mortgaged premises, directed,
that the purchaser be let into possession ; the purchaser found a stranger
in possession, of whom he demanded it, informing him, unless it was yield-
ed up, the Register would be moved for a writ of assistance, to eject him,
&c. The demand was disregarded, the writ issued, the individual in pos
session ejected, and the purchaser let in to its enjo3Tnent : Held, that the
party dispossessed cannot have the irregularity corrected on error, but his
remedy is by an application to the Chancellor.
Writ of Error to the Court of Chancery sitting in Henry.
The facts of this case, so far as it is necessary to notice them,
may be thus condensed. Moses Mathews obtained a decree for
the foreclosure of a mortgage, and a sale of the mortgaged prem-
ises, against John M. Kimmey. Among other things, the de-
cree directs that the Register « execute a deed, or deeds, of con-
273 ALABAMA.
Trammel v. Simmons.
veyance to the purchaser or purchasers, and that they respec-
tively be let into possession of the premises, which may be by
them purchased." The defendant in en'or became the purcha-
ser of a part of the land, and gave notice of the fact to Trammel,
demanded the possession, and informed him, that unless he yield-
ed it up, the Register would be moved for a writ of assistance to
eject him, and substitute the purchaser in his stead.
The demand was disregared, the writ was issued, Trammel
ejected, and the purchaser let into possession.
Trammel sued a writ of error, returnable to this Court, to re-
vise the proceedings consequent upon the decree of foreclosure
and sale, so far as they affect him.
E. W. Peck, and L. Clark, for the plaintiff in error.
No counsel for the defendant.
COLLIER, C. J. — The plaintiff's counsel have called our at-
tention to what are supposed to be errors in the record of the
cause between Mathews and Kimmey. It is enough to say, in
answer to these, that even if they were available in a direct pro-
ceeding between the parties to the decree, they cannot be noticed
at the instance of a stranger. ...
True, the decree directs, that the purchasers at the sale by the
Register, should be let into possession, but, if this order can ope-
rate, so as to warrant the adoption of coercive measures, it can-
not affect any one but the mortgagor himself, or, possibly, his
tenant. In Creighton, et al. v. Paine and Paine, 2 Ala. Rep.
158, it was held, that the Court of Chancery has power to put a
person in possession, who purchases at a sale made under its de-
cree, when it is withheld by the defendant, or any one who comes
in pendente lite. In that case we pointed out the course of pro-
cedure proper to be pursued, upon an application being regularly
made by the purchaser. It was there said, that if, on examina-
tion, the Chancellor is satisfied the possession is withheld by ojie
who is concluded by the decree, he will make a decretal order,
(unless the decree of foreclosure directed it,) to deliver the pos-
session to the purchaser.
If this order is disobeyed, an injunction will issue, commanding
the party in possession forthwith to deliver it up, then upon a re-
JUNE TERM, 1845. 273
Ellison V. The State.
fusal being duly made known, a writ of assistance to the sheriff,
to put the purchaser in possession, issues of course, on motion.
The recital of the facts in the present case, very clearly shows
that the proceedings complained ofwere not regular. But there
is no order operating directly upon the party ejected, and conse-
quently no action of the Chancellor, which can at his instance be
revised on error. In Creighton, et al. v. The P. & M. Bank, 3
Ala. Rep. 156, the person in possession made himself a party, by
appearing and resisting the order, and it was held that it might
be reviewed at his instance. Here, there is nothing but the no-
tice to Trammel, the affidavit of that fact, and his refusal ; the
application to the Register for the writ of assistance, the writ and
its execution, against which he can ask relief. It is clear that
the remedy of the plaintiff in error is not in this Court, he should
have applied to the Chancellor, whose powers are ample, for the
correction of any irregularity in the issuing or executing process
by its ministerial officers.
The writ of error is consequently dismissed.
ELLISON V. THE STATE.
1. A recognizance, conditioned that the party charged will appear and an-
swer to the indictment to be preferred against him at a named term of the
Court, and not depart therefrom without leave, may be extended at any
subsequent term, if an indictment is preferred and found at that tenn.
2. When the parties acknowledge themselves bound in the sum of $500, to
be levied severally and individually of their goods, &c., respectively, this is
a joint and several recognizance, and not the several recognizance of each
of the parties for that sirni.
3. Under our statutes, which allow a sci./a. without setting out the recogni-
zance, the defendant is entitled to crave oyer of the recognizance upon
which the proceedings are based, and to demur if there is a variance.
4. When a writ of error is sued out in the names of D. A. and others, it may
be amended by the transcript of the record, and the names of the proper
party or parties substituted.
35
274 ALABAMA.
Ellison V. The State.
5. When a judgment is erroneously entered severally against the parties
bound by a joint recognizance, the entire proceedings as to all the parties
will be reversed upon the writ of error sued out by one only, and the cause
remanded, that its vmity may be preserved.
Writ of Error to the Circuit Court of Dallas.
Sci. fa. upon a forfeited recognizance. The sci. fa. sets out
the judgment on the recognizance, which recites, that at the
March term, 1844, it appeared to the Court, that the defendant,
(David A. Armstrong,) together with John Murphy, R. W. Arm-
strong, and Robert Ellison, had, before Zachary Whandby and
Samuel Gilmer, justices, &c. acknowledged themselves to owe,
and be indebted to Benjamin Fitzpatrick, Governor of the State
of Alabama, and his successors, &c. in the sum of five hundred
dollars each, to be levied, &c. to be void if the said David A.
Armstrong, should make his personal appearance at the then pre-
sent term of the Circuit Court, and answer a charge of the State
against him, for an assault and battery, and thence continue from
day to day, and from term to term, until discharged by due course
of law. It also recites, that the defendant having been called to
answer said charge, and failing to appear, a judgment ni si was
rendered against David A. Armstrong, John Murphy, R. W.
Armstrong, and Robert Ellison, for five hundred dollars each, the
amount of their recognizance, so forfeited as aforesaid. The sci.
fa. was made known to Murphy, R. Armstrong and Ellison, and
as to D. A. Armstrong was returned not found.
The defendants served with process appeared, craved oyer of
the recognizance, and judgment, and then demurred for a vari-
ance. This demurrer was overruled, and they then pleaded — 1.
Nul tiel 7-ecord as to the recognizance set out in the sci. fa. 2.
The same as to that set out in the judgment ni si. 3. The same
plea as to the judgment. Judgment final was rendered for the
State, that it recover the sum of five hundred dollars each.
The recognizance was produced, under the pleadings, and sets
out, that the recognizors acknowledged themselves, held them-
selves firmly bound, &c. in the sum of five hundred dollars, to be
levied severally and individually, of their goods and chattels,
lands and tenements, respectively, if the said David A. Armstrong
should make default in the condition of the recognizance. That con-
JUNE TERM, 1845. 275
Ellison V. The State.
dition is, that the said David A. Armstrong should make his ap-
pearance at the fall term, 1843, of the Circuit Court, to answer,
&c., and do what shall be enjoined by said Court, and not depart
therefrom without leave.
All the parties against whom judgment was rendered, join in
the writ of error, or rather it is sued out in the name of D. A.
Armstrong, et al.
It is now assigned as error —
1. That the judgments should have been for the defendants, on
the demurrer, and on the pleas of nul tiel record.
2. That the judgment, if one could be rendered upon the sci.
fa. ought to be joint, for five hundred dollars and not several.
When the cause was called for argument, the Attorney General
moved to dismiss the writ of error — 1st. Because D. A. Arm-
strong is the plaintifFin the writ, and no judgment is given against
him. 2. Because those against whom judgment is given, cannot
sue out a joint writ. The counsel for the defendant moved to
amend the writ, so as to make it correspond with the record, and
if necessary to make Ellison the plaintiff.
Edwards, for the plaintiff in error, argued, that the recogni-
zance was only for the sum of $500, and that sum only could be
recovered by the State. The judgment therefore should be joint,
though it may be levied of the several goods, &c.
Attorney General, contra, cited Goodwin v. The Gover-
nor, 1 S. & P. 465 ; Howie and Morrison v. The State, 1 Ala.
Rep. N.S.I 13.
GOLDTHWAITE, J.— 1. If we are to understand from the
record, that oyer was given of the recognizance, then all the
questions presented here, arose upon the demurrer ; but if it is to
be understood otherwise, they must be considered in the exami-
nation of the evidence offered to sustain the issue of [nul tiel re-
cognizance. When the recognizance is inspected, we find, that
the recognizors bound themselves, that David A. Armstrong
should make his personal appearance at the fall term of the Cir-
cuit Court of Dallas, for the year 1843, to answer to a charge of
the State, for an assault and battery, upon one David Armstrong;
and further, to do what should be required by that Court, and
276 ALABAMA.
Ellison V. The State.
that he should not depart therefrom without its leave. At that
term of the Court, an indictment for that offence was returned by
the grand jury, but no proceedings on the recognizance, or against
the recognizors, was had until the spring term, 1844, when, the
principal being called, and not appearing, a judgment ni si was
rendered against each of the parties to the recognizance for the
sum of $500.
It is now insisted, that the recognizors not having been called
to produce their principal, at the fall term, 1843, were virtually
discharged from all liability to do so at a subsequent term. It is
said by Hawkins, that if persons be bound by recognizance for
the appearance of one in the King's Bench, on the first day of the
term, and that he shall not depart till he shall be discharged by
the Court ; and afterwards a nolle prosequi, as to the particular
charge, upon motion, is entered, and another is exhibited, on
which the defendant is convicted, and refuses to appear in Court,
after personal notice, the recognizance is forfeited ; for being ex-
press, that the party shall not depart till he be discharged by the
Court, it cannot be satisfied unless he is forthcoming, and ready
to answer to any other information exhibited, while he continues
not discharged, as much so, as to that which he was particularly
bound to answer to. [2 Hawk. 173.]
Our practice, in misdemeanor cases, is supposed to differ from
that pursued in England, inasmuch as the trial is always had when
the defendant is present, and he is considered in strict custody as
soon as placed on trial ; but even with this difference in practice,
the quotation from Hawkins is conducive to show, that the recog-
nizors are bound to produce their principal, to answer the charge,
and that they are not released by the omission to call out the re-
cognizance at the term at which the indictment is found. No in-
jury can ever arise to the recognizors, as they are entitled at any
time to surrender their principal, in discharge of the recogni-
zance. [Clay's Dig. 450, § 35.] Whether the recognizance
would continue in force, without some special order, when no
indictment was returned, at the proper term, is a question not in-
volved in this case ; nor is it supposed the decision made in Good-
win V. The Governor, 1 S. & P. 465, where a point somewhat
similar to that just adverted to was ruled, has any important bear-
ing on the matter just examined j pja this, our conviction is, that
JUNE TERM, 1845. 277
Ellison V. The State.
that the recognizance could have been properly estreated at the
spring term, 1844, and possibly also, at a period more distant.
2. With respect to the variance which is supposed to exist be-
tween the recognizance produced in evidence, and that described
in the judgment ni si, we think the objection well taken. By the
recognizance, the parties signing it admitted themselves bound in
the sum of $500, and this cannot be extended so as to make it the
several engagement of each of the recognizors to pay that sum
four several times. The words which follow the statement of
the sum for which they admit themselves to be bound, merely
show, that it was to be levied of their several, and respective,
goods, &c.
3. It is not very material to this case, whether the judgment
below is reversed, on the ground that the demurrer should have
been sustained, or that the issue of nul tiel recognizance should
have been decided for the defendants ; but as the question of prac-
tice is one which must frequently arise, it is proper to give it a
brief consideration. We have a statute which dispenses with
the recital of the recognizance in the sci.fa. when a judgment ni
si has been entered ; in which case it is " sufficient to recite the
judgment ni si, and the term of the Court at which it was ren-
dered ;" and to conclude by stating, that unless the defendant ap-
pears and show cause to the contrary, judgment final will be en-
tered up. It also provides, that no other averment, or statement,
shall be necessary to the validity of the notice. Another section
of the same act, provides, that a variance in setting out a copy of
the bond, or recognizance, or judgment ni si, shall not vitiate the
proceedings, unless it be a substantial variance. [Clay's Dig.
481, § 29, 30.]
This statute was evidently intended to simplify the proceedings
by sci. fa. and render them less subject to exception, than they
had been previous to its enactment. It is certainly entitled to be
liberally construed, but not in such a manner as to take away
from the defendants, who are called on to show cause, the right
to make a substantial variance apparent to the Court. Under
the law, as it was before the statute, the recognizance was always
set out, according to its legal effect, and the defendants were
entitled to plead nul tiel recognizance, either when there was no
record of the judgment, or of the recognizance, or it was untruly
stated in the 5d. /a. [Green v. Ovington, 16 John. 55. The
278 ALABAMA.
Ellison V. The State.
statute does not affect to take away this right, yet it is difficult to
perceive how a defendant can plead nul tiel record, or nul tiel
recognizance, when the plaintiff has not averred the existence of
any such proceedings. As there must be some mode, by which
the plaintiff can be forced to produce the proceeding upon which
he grounds the process and judgment ni si, it seems in accord-
ance with correct principles, that the defendant may crave oyer
of the recognizance, and when it is given may demur. Both
means were resorted to here, by the defendants, and without as-
serting that the plea of nul tiel recognizance is improper, we con-
sider the craving oyer, and then demurring for the variance, is
entirely proper. The judgment on the demurrer should have
been rendered for the defendants.
4. Since the decision of Howie and Morrison v. The State, 1
Ala. Rep. 113, the statute authorising amendments of writs of er-
ror, has been passed ; and though the writ here is sued out in the
name of D. A. Armstrong and others, without naming them, we
think that even such a case is within the statute, as the record
furnishes the names of those who might sue out the writ. [Clay's
Dig. 312, § 39.] As the counsel indicates, the defendant Ellison
is the party suing out the writ in this case, it will be amended, so
as to make his name appear as the sole plaintiff.
5. There is yet another difficulty in the case, which grows out
of the peculiar nature of those proceedings, in which a number of
parties are before the Court jointly, until the momentof final judg-
ment, and when, by that judgment, the proceedings assume a seve-
ral character. In ordinary cases, when the judgment should be, and
is several, the suing out the writ of error, by one, and the reversal
or affirmance of the judgment does not affect the judgment
against any other. Such was the case of Howie and Morrison
v. The State, 1 Ala. Rep. 113. But the reversal of the judg-
ment as to Ellison in this case, without reversing as to other re-
cognizors, would leave them severally liable, each for the sum
for which a joint judgment should have been rendered. Under
the decision made in Robinson v. The State, 5 Ala. Rep. 706, it
is probable the reversal of the judgment alone, as to Ellison,
would not create a discontinuance of the proceedings against the
Other defendants ; but it would place the entire cause in a condi-
tion not contemplated, either by the prosecutor or the defendants.
The harmony and unity of the proceedings will be best secured,
JUNE TERM, 1845. 279
Doe ex dem. Farmer's Heirs v. The Mayor and Aldermen of Mobile.
by reversing the judgment as to all the parties, R. W.Armstrong
and Murphy, as well as Ellison, and remanding it to the Circuit
Court, with instructions to amend the judgment ni si, and award
a new set fa. that further proceedings may be had upon it, not in-
consistent with this opinion.
Reversed and remanded.
DOE EX DEM. FARMER'S HEIRS v. THE MAYOR
AND ALDERMEN OF MOBILE.
1. A permission by one in possession of a lot, to another claiming a part of it,
to move the fence, so as to take in a part of the lot, may be given in evi-
dence, upon a question of boundary, as an admission of the person then in
possession, against his interest, though a stranger to the title. It would
not be conclusive, even if made by one claiming title, or by his authorized
agent.
2. The boundaries of a public lot, may be proved by general reputation, there
fore a deed for an adjoining lot, calling for the " King's bake house lot,"
as its northern boundary, is admissible to prove as general reputation, that
at the date of the deed, the Bake-house lot had an ascertained boundary ;
and the conduct of the party claiming under such deed, is also evidence of
the general reputation at the time; of the true boundary of the Bake-house
lot. Whether such evidence would be admissible in the case of a private
lot — Quere^
Writ of Error to the Circuit Court of Mobile.
Ejectment, by the plaintiff in error, against the defendant in
error.
The plaintiff produced a patent from the United States, for the
premises in question, which calls for " the south boundary of the
Bake-house lot" as one of the lines of the tract, which patent is-
sued on the 14th November, 1837, in virtue of the act of Con-
gress, of May, 1822, confirming the claim of the heirs of Rob-
ert Farmer, 3 vol. Am. State Papers, Public Lands, page 18.
280 ALABAxMA.
Doe ex dem. Fanner's Heirs v. The Mayor and Aldermen of Mobile.
The defendant relied upon the act of 26th May, 1824, and
claimed the premises in dispute, as part of the " Bake-house lot,"
granted to the city by that act. The defendants produced no of-
ficial survey, or patent from the land office, for the lot, but relied
alone upon the act. To establish the boundaries, they read cer-
tain depositions, which were objected to, because the evidence
was irrelevant, incompetent, and improper under the issue, and
went to contradict and change the legal import, and terms of the
patent, introduced by the plaintiff. The Court overruled the ob-
jection, and the plaintiff excepted.
The defendant called a number of witnesses, and examined
them as to the marks, and memorials that existed of the Bake-
house lot, as it was used and occupied in Spanish times, and as
to those which remained after the departure of the Spanish gov-
ernment, none of which appeared in the patent of the plaintiff,
either as land marks, or otherwise, nor were they now visible,
nor did any of the witnesses swear that they were the lines of
the lot aforesaid, nor was it proved who put them there.
The defendants also proved the facts of the possession of
the adjoining proprietors, Osomo, and Eslava, in Spanish times,
and that in 1824, when the lot was taken by the defendants, they
leased a portion to third persons, without objection from the les-
sors of the plaintiff, or the heirs of Eslava, that the witnesses
knew of, (and four of them were at the time members of the cor-
poration,) and both of whom claimed the lot south, and bounding
the King's bake-house lot, and no suit that they know of, had been
brought for the same. That improvements had been put by the
defendants, on the part now claimed by them. The object of this
testimony was to prove, that the defendants were not in posses-
sion of any land, which did not form a portion of the lot, and that
the courses, and distances, laid down in the patent, conflict with
their right ; which evidence was objected to by the defendants,
as irrelevant, and improper, but admitted by the Court.
The defendants, further to establish thier southern boundary
line, proved, that the lot next, was claimed by Joaquin D'Osorno,
in Spanish times, and was used and improved by him. That
he parted with his possession to Mr. Eslava, who was at the
time commissary, and store-keeper for the Spanish troops, and
who was in possession when De Vobiscey, the son-in-law of
Farmer, came to the State, and has been ever since controvert-
JUNE TERM, 1845. 881
Doe ex dem. Farmer's Heirs v. The Mayor and Aldermen of Mobile.
ing Eslava's right, and that his heirs are now in possession of
the lot, and have been for more than twelve years, and that
their claim to the possession, was not disputed by Eslava, or his
heirs.
The defendants produced the book of translated Spanish re-
cords, from the County Court of Mobile, and read a deed there re-
corded, from oneFontanella, toOsorno, for the lot south, calling for
the Bake-house lot as the northern boundary, bearing date in 1801,
against the objection of the plaintiff for irrelevancy, and because
there was no proof that the deed had ever been offered to the
commissioners appointed by Congress. There was no evidence
that the claim to possession was ever disputed by Eslava, or his
heirs, but there was testimony, that the defendants, shortly after
they took possession of the lot, procured the fence, that bounded
the Bake-house lot on the south, to be moved in the night time,
some thirty feet south, upon the premises claimed by the plain-
tiff, while De Vobiscey, one of the heirs of Farmer, was in posses-
sion thereof
The Court charged the jury, that the act of Congress of 26th
May, 1824, conferred upon the defendant as perfect, and conclu-
sive a title, and their title to the Bake-house lot, was equal in ev-
ery respect, under the act, with the title of the plaintiff under the
patent' That the question for them to settle, was, what was the
south boundary of the Bake-house lot in the Spanish times — that
such as it then was, it passed to the defendants.
The plaintiff's counsel moved the Court, to charge, that the
grant to the corporation was a mere donation, and that the Re-
gister, and Receiver, at St. Stephens, were authorized under the
act of Congress, of May, 1822, and other acts of Congress, to di-
rect the manner, and mode of surveying, and making the location,
and division, between these parties, and having done so, that pa-
rol evidence was not competent to change the location so made,
and set forth in the patent. Further, that no survey, plot, or other
description of the premises in question, can outweigh, or su-
persede, the survey set forth in the patent, under which the
plaintiff claims, unless it be shown by the defendants, in a patent,
or instrument of equal dignity. These instructions the Court
refused to give, and to the instructions given and refused, the
plaintiff excepted.
36
282 ALABAMA.
Doe ex dem. Fanner's Heirs v. The Mayor and Aldermen of Mobile.
The assignments of error cover all the matters set forth in the
bill of exceptions.
Test and Phillips, for plaintiff in error.
Campbell, for defendant in error, submitted the cause without
argument.
ORMOND, J. — When this case was before this Court, at a
previous term, we held, that the action of the officers of the Land
Office, in relation to the boundary line, between the " Bake-house
lot," and those of the adjoining proprietors, was not conclusive*
That if a difficulty should arise as to the boundary, "the precise
location must be ascertained by testimony, showing where the
south line was, when in the occupancy of the crown of Spain.
Such as its limits then were, it passed by the treaty to the United
States, and with these limits, it was granted to the corporation.'*
The only question therefore open for adjudication is, whether the
evidence admitted was competent.
The question to be decided by the jury, was, the precise loca-
tion of the south boundary of the King's bake-house lot, when in
the occupancy of Spain ; proof of facts therefore, by witnesses,
where this line was, by reference to former, or existing monu-
ments, as a well, and the remains of a picket fence, which once
enclosed it, was certainly proper.
It also appears, that when the grant was made to the corpora-
tion, in 1824, and they were about taking the necessary steps to
obtain the possession, they understood that the heirs of Farmer,
had by permission, enlarged their boundaries, and taken in a part
of the Bake-house lot, for the purpose of cultivation as a garden
— that the corporation determined to resume the possession —
that it was yielded to them by the person in possession, who
represented himself to be, and was recognized generally, as the
agent of the owners of the lot, who assented to the claim of the
corporation, and permitted the fence 1o be removed to its origi-
nal position.
We can perceive no objection to this testimony. The per-
mission to remove the fence, to what was supposed to be its
original site, was in the nature of an admission, against the inter-
est of the person then in its occupancy. This admission would
JUNE TERM, 1845. 283
Doe ex dem. Farmer's Heirs v. The Mayor and Aldermen of Mobile.
increase in strength, if made by the plaintiffs or their authorized
agent. It would not then, be conclusive, as it might have been
made inadvertently, or in ignorance of the facts ; but it w^as com-
petent testimony, to go to the jury, who were the proper judges
of the weight it was entitled to.
It appears from the bill of exceptions, that the lot south of the
King's bake-house lot, being the one in dispute, was claimed, both
by the heirs of M. Eslava, and the plaintiff". That after posses-
sion was taken by the corporation, a portion of it was leased by
the corporation to third persons, without objection, or suit, until
the institution of this, from the heirs of Eslava, or the plaintiffs.
This evidence, though not very conclusive, was certainly com-
petent, upon a question of boundary, being the acquiesence of
those interested, in opposing it, in the truth of the line, claimed
by the corporation. Its effect was a question for the jury.
The defendants were also permitted to read a deed, from one
Fontanella, to Joaquim De Orsono, made 1801, by which the lot
south of the Bake-house lot, was conveyed by the former, to the
latter, which calls for the Bake-house lot as the northern bounda-
ry— that Osorno, used and improved the lot, and parted with his
possession to Eslava, whose heirs have been in possession for the
last twelve years, contravening the right of Farmer's heirs to the
lot, and that their claim to the land in dispute, was never disputed
by Eslava, or his heirs. The plaintiff" objected to this testimony,
and to the deed, in addition, that there was no proof, that it had
ever been offered to any commissioner appointed under the acts
of Congress for the adjustment of private land claims.
From this testimony we understand, that the lot south of the
« King's Bake-house lot," is claimed both by the heirs of Eslava,
and the heirs of Farmer. That the former deduce their title,
from a deed in 1801, calling for the Bake-house lot, as their north-
em boundary, and that Eslava and his heirs have always admit-
ted, the line between the two lots as claimed by the corporation,
whilst the heirs of Farmer, are now insisting, that the line is situ-
ate, some thirty feet or more further north.
This is certainly an admission which would be competent tes-
timony against the heirs of Eslava, but is certainly not admissible
against the heirs of Farmer as an admission, of the true site of the
disputed line. They might, from prudential or other considera-
tions, decline to assert title to the disputed piece of land; but this
284 ALABAMA.
Doe ex dem. Farmer's Heirs v. The Mayor and Aldermen of Mobile.
certainly could not prejudice any other person, who did assert a
title to it. We incline however, to the opinion, that it was com-
petent testimony, though as it regarded the plaintiffs, mere hear-
say, upon a question of boundary.
In England, reputation, or the declarations of deceased per-
sons, are not evidence, in questions of boundary, between individ-
uals, though admissible in questions of public right ; but in the
United States a different rule has generally prevailed. See the
cases collected in 2 Cow. & Hill, 628. It is considered as a set-
tled question in this country, by the Supreme Court of the United
States, in Boardman v. Reid &. Ford, 6 Peters, 341. The Court
say, " that boundaries may be proved by hearsay testimony, is a
rule well settled, and the necessity, or propriety of which is not
now questioned. Some difference of opinion, may exist as to the
applicatioD of this rule, but there can be none as to its legal force."
See also, Ralston v. Miller, 3 Rand. 49.
The deed made in 1801, establishes the fact, as general repu-
tation, that the Bake-house lot, at the date of the deed, had an as-
certained boundary, and the conduct of those claiming under it,
is, as it respects third persons, proof of the same grade, where
that boundary was reputed to be. In the case cited from 3 Rand,
the Court say, " ancient reputation, and possession, in respect to
the boundaries of streets, are entitled to infinitely more respect
in deciding upon the boundaries of the lots, than any experimen-
tal survey, that can now be made."
In the present case, the disputed fact, related to the boundary
of a public lot, which it appears from the evidence, was enclos-
ed in the Spanish times, with a picket fence. The boundary of
such a lot, would be more apt to be known, than that of the lot
of a private individual; and we think the conduct of the adjoin-
ing proprietors, at a time when the boundary must have been
known, conceding where that boundary was, against their own
interest, is evidence of the general reputation at the time, of the
boundary of the lot.
The fact, that the deed had not been laid before any of the
boards of commissioners, is of no importance. It is not offered
as a muniment of title, but as evidence of a fact, disclosed by
the deed itself. The due execution of the deed is not controvert-
ed, and it appears to have been recorded in the book of translated
Spanish records in Mobile.
JUNE TERM, 1845. 285
Windham, et al. v. Coates, use, &c.
The objection, that all the evidence offered by the defend-
ant, tended to contradict the line, as set out in the patent of
the plaintiffs, was considered when this case was previously
here.
Let the judgment be affirmed.
WINDHAM, ET AL. v. COATS, USE, &c.
1. Upon an appeal from a justice of the peace, the defendant and his sureties
acknowledged that they were bound unto the plaintiff in a definite sum " for
the payment of the principal, costs, charges, and aU expenses attending the
suit," between the plaintifi'and the defendant, and that the latter had "ap-
pealed from the justice's court of Beat No. 3, for the county," &c, to the
Circuit Court, to be holden, &c. Hdd, that although the bond does not
conform literally to the act, yet it was substantially suiEcient, and was equiv-
alent to a condition " to prosecute the appeal to effect, and in case the ap-
pellant be cast therein, to pay and satisfy the condemnation of the Court"
2. The sureties in an appeal bond, are not liable beyond its penalty, and if a
judgment is rendered for a greater amount, though objected to, in the pri-
mary Court, it will be reversed on error.
3. The clerk of a Court is not authorized, without the consent of the plaintiff,
to receive before judgment, the amount for which the sureties of the defend-
ant are liable, and thus discharge them.
Writ of error to the Circuit Court of Coosa.
This was a suit instituted before a justice of the peace, at the
instance of the defendant in error, against the plaintiff, Windham,
for the recovery of $5 6 1-4. A judgment was rendered against
Windham, for the amount claimed, with interest and costs.
Thereupon he entered into a bond with his co-plaintiffs. Rose
and Beard, as his sureties, of which the following is a copy, viz:
"Coosa county, State of Alabama, know all men by these pre-
sents, that we, Stephen Windham, Howell Rose, our heirs, exe-
cutors and administrators, are firmly held and bound in the
286 ALABAMA.
Windham, et al. v. Coates, use, &c.
full sum of twenty dollars, for the payment of the principal, costs,
charges, and all expenses attending the suit between Nathan
Coats, the plaintiff, and myself, Stephen Windham, the defend-
ant, in which I have appealed from the justice's court, of Beat No.
three, for the county aforesaid, to the Circuit Court, to be held
for the County aforesaid, at the town of Rockford, on the third
Monday in April, in the year of our Lord one thousand eight
hundred and forty-four, this, the third day of February, 1844."
Signed and sealed by Windham, Rose and Beard, and attested
by the justice of the peace who rendered the verdict.
The plaintiffs in error objected to the rendition of a judgment
against them on the bond, because it did not conform to the sta-
tute, and because, previous to the disposition of the case against
Windham, he fully paid to the clerk of the Court, the amount of
the penalty of the bond. But their objections were overruled,
and the judgment rendered against all the obligors in the bond,
for the sum of $5 39, debt and interest, eighty cents damages, and
all costs, amounting to $193 35.
S. Heydenfeddt, for the plaintiff in error, insisted that the
bond was not such as the statute requires, and no summary judg-
ment could be rendered upon it. [4 Ala. Rep. 315.] That even
if it was good,no judgment could be rendered upon it beyond the
amount of the penalty. [6 Ala. Rep. 476.]
No counsel appeared for the defendant.
COLLIER, C. J. — It is provided by statute, that any person
aggrieved by the judgment of a justice of the peace, may, within
five days thereafter, appeal to the next superior Court, sitting
for his county, first giving to such justice, bond, with good securi-
ty, in double the amount of such judgment, conditioned to prose-
cute such appeal to effect ; and in case he be cast therein, to pay
and satisfy the condemnation of the Court. The bond in the
present case, does not conform literally to the act, but we think
it substantially sufficient. It recites the names of the parties to
the judgment before the justice, states that the defendant had ap-
pealed, contains a specific penalty, which is no doubt for the pro-
per sum, and if not, the obligors upon the state of the record, can-
not object to it. The bond is an acknowledgment that the obli-
JUNE TERM, 1845. 287
Windham, et al. v. Coates, use, &c.
gors are bound in the penalty designated, for the payment of the
principal, costs, charges, and all expenses attending the suit.
This we think equivalent to a condition in totidem verbis, to pro-
secute the appeal to effect, and in case the appellant be cast there-
in, to pay and satisfy the condemnation oj the Court.
In McBarnett and Kerr v. Breed, 6 Ala. R. 476, the penalty of
the appeal bond was $5 25, this Court said, that we would judi-
cially know, that the costs exceeded the penalty, and beyond that
sum the obligors in the bond were not liable. Here the amount
of the costs are not left to conjecture, but they are explicitly sta-
ted in the bill of exceptions. If no objection had been made and
overruled, to the rendition of a judgment by the Circuit Court,
for an amount exceeding the bond, we should have regarded the
irregularity as a mere clerical misprision, amendable at the cost
of the plaintiff in error. But the sureties there appeared by
counsel, and resisted a recovery against them, for any thing more
than the penalty ; and the act of 1824, authorises the revision of
the judgment on error. [Clay's Dig. 322, § 55.] The payment
of the amount of the bond, to the clerk of the Court, before judg-
ment, did not, in itself, absolve the obligors from liability ; inas-
much as the clerk had not authority, under the circumstances, to
receive the money. [Murray v. Charles, 6 Ala. Rep. 678.] To
have made the payment effectual, it should have been shown,
that it was assented to by the plaintiff, or that the money was
paid over.
The judgment of the Circuit Court must be reversed, and here
rendered, that the plaintiff below recover of Windham and his
sureties in the appeal bond, the debt, damages and costs, amount-
ing to $20, and for the residue of the costs, the judgment will be
against Windham alone.
288 ALABAMA.
Morrow and Nelson v. Weaver and Frow.
MORROW AND NELSON v. WEAVER AND FROW.
1. When a debtor has been arrested, and has given a bond to keep the prison
bounds, the creditor is not discharged by his making affidavit that the par-
ticular ground upon which he was arrested is untrue. Under the act to
abolish imprisonment for debt, he can be discharged by reason of this affi-
davit only, only when in custody of the arresting officer.
2. The act to abolish imprisonment for debt, is to be construed in connection
with the previous legislation on the same subject, and under it, when the
prisoner seeks a discharge by a surrender of his property, &c. or by swear-
ing that he has none, the application must be made to a judge, or two justi-
ces of the peace, as required by the previous acts : but if the schedule, &c.
be contradicted by the creditor, one justice will constitute a court compe-
tent for that purpose, under the act of 1839.
3. A plea in avoidance of a bond for the prison bounds, on the ground of a
discharge under the statutes relating to the discharge of debtors, is bad if it
does not aver that notice was given to the creditor, and which does not
show a discharge by a judge, or two justices of the peace, as provided by
the act of 1821.
4. If one in the limits under a prison bounds bond voluntarily surrenders himself
in the common jail of the county, and to the custody of the sheriff, in dis-
charge of his sureties, it is a discharge of the bond, although done before
the expiration of sixty days.
5. But if such surrender is colorable merely, and not intended to be for the
purpose of discharging the bond, it does not have that effect. The inten-
tion of the going within the jail, and the surrender to the sheriff, is a mat-
ter for the determination of the jury.
Writ of Error to the Circuit Court of Dallas.
Action of debt, by Morrow and Nelson, against Weaver and
Frow, as the sureties of one Parkman, on a prison bounds bond,
conditioned that the said Parkman, should continue a true prison-
er, in the custody, guard, and safe keeping of the keeper of the
prison, or of his steward, bailiff, deputy, or other officer, or of
some of them, within the limits of the prison bounds of said prison,
as by law established, until he should be thence discharged, by
due course of law, without committing any escape in the mean
time. Breach assigned, that the said Paikman, on the 25th
JUNE TERM, 1845.
Morrow and Nelson v. Weaver and Prow.
May, 1842, did escape, and out of, and beyond the limits of said
prison bounds, without having been discharged therefrom by
due course of law.
The defendants pleaded as follows, among other pleas, to wit :
That before the supposed breach of the said bond, as alledg-
ed in the declaration, the said Parkmari was discharged from
such arrest and imprisonment, by due cours* of law, by virtue
of his complying with the provisions of the act of the General
Assembly, entitled an act to abolish imprisonment for debt, by
making oath before W. F. an acting justice of the peace, in and
for said county, a person authorized to administer the same, that
the particular ground on which he was arrested was untrue, and
that he had neither estate, effects, or monies, whereby to satisfy
the debt, or liable for the same, and was thereupon released by
the arresting officer, to wit: the sheriff of Dallas county. Also,
that before the supposed breach of said bond, alledged. that the
said Parkman was discharged from such arrest, and imprison-
ment, by due course of law, by virtue of his complying with the
requisitions of the act, &c. entitled an act to abolish imprisonment
for debt, by rendering a schedule of all the estate he had in pos-
session, or was entitled to, and taking an oath before W. F. a
justice of the peace, &c. that he, the said Parkman, did solemnly
swear, that he had not any estate, real or personal, to the amount
of twenty dollars, except what was therein rendered, and such
goods and chattels, which, by law, were excepted from execu-
tion, and that he had not any other estate then conveyed or con-
cealed, or in any way disposed, with a design to secure the same
to his use, or to defraud his creditors ; and was thereupon im-
mediately released by the arresting officer, to wit : the sheriff of
Dallas.
These pleas were demurred to, but the demurrer being over-
ruled, issue was taken on them to the country, as it also was to
a plea of performance of the condition of the bond.
On the trial of these issues, it was in evidence before the jury,
that Parkman, the debtor, voluntarily placed himself in the cus-
tody of the sheriff, while on the prison bounds, and went into
close confinement in the county jail ; that while in said close con-
finement, he sent for W. F., a justice of the peace, who went to
the jail with the sheriff, when Parkman asked the justice to quali-
. fy him to an affidavit, appended to a schedule of his effects, made
37
290 ALABAMA.
Morrow and Nelson v. Weaver and Frow.
under, and agreeably to, the act for abolishing imprisonment for
> debt, which the said justice accordingly did. When Parkman
was qualified, the sheriff took possession of the schedule and affi-
davit, and immediately discharged Parkman, who afterwards left
the county, before the expiration of sixty days from the date of
the bond sued on ; the sheriff retained the affidavit and schedule
for some time, and then gave it to the justice, who received and
kept it, not as a court, or judicial officer, as he stated, but as a
private individual, until a short time before this trial, when it was
given to the counsel for the defendants. It was also in evidence
that neither Parkman, nor the sheriff, or the justice, or any one
for him, or them, had given the plaintiffs any notice of the mak-
ing of the supposed surrender and affidavit, until after Parkman
had been discharged by the sheriff.
On this evidence, the Court charged the jury, the plaintiffs
■could not recover. Also, that notice was unnecessary to be giv-
en to the plaintiffs, by any one, of the making of the surrender^
schedule, and affidavit, to entitle Parkman to be discharged un-
der the act.
The overruling the demurrer to the pleas and the charges giv-
en to the jury, are now assigned as error.
G. W. Gayle and R. Saffold, for the plaintiffs in error, made
the following points:
1. The first plea to which the demurrer is overruled is bad — -
1. Because it assumes that Parkman was under arrest. One
under bond, is not under arrest. [Clay's Dig. 275, § 9.] 2. The
discharge in the mode asserted by this plea, could not be had up-
on the facts set out, for the only discharge by due course of law,
when out upon a prison bounds bond is under the general in-
solvent law. [Clay's Dig. 272, § 2; 5 Ala. Rep. 130.] 3. If
the discharge from the bond could be had, under the act of 1839,
then it was necessary for the plea to have set out what the plain-
tiff had sworn, in order that it might be seen in what manner the
defendant had sworn that the plaintiffs' cause assigned for suing
out the ca. sa. was untrue.
2. In addition to the reasons before stated, the other plea is
bad, because it omits to state that notice was given to the plain-
tiffs, in order that they might controvert the truth of the schedule,
as they are allowed to do by the act of 1839. Notice is not re-
JUNE TERM, 1845. 8M
Morrow and Nelson v. Weaver and Frow.
quired in terms by the statute, but its necessity is apparent, to en-
able the party to do that which the act allows him to do. It is also
vicious, in not showing that Parkman delivered up all evidences
of debt, or effects, named in the schedule.
3. The facts in evidence do not show a discharge by due
courseof law, because the surrender was not made to a judicial
officer. [5 Ala. Rep. 130.] Nothing surrendered was given up;
nor any notice given as it is provided by the statute. [Clay's Dig.
272, § 2.]
4. The principal, by going into jail, did not discharge the bond,
nor was he thereby under arrest, or in custody. [1 Paine's C.
C. Rep. 368; 19 John. 233; 9 ib. 146.]
5. The act abolishing imprisonment for debt, contemplates the
debtor's discharge from the original custody only, when the sta-
tutory oath was taken ; if this is omitted, and the debtor goes
either to prison, or upon the bounds, he cannot afterwards be
discharged without notice to the creditor, and then only, upon
complying with the requisition of the previous enactments.
Edwards, contra, insisted that the questions upon the demurrers
were not material, if the evidence showed a discharge of the
bond, either by a discharge under the act of 1839, or by the re-
turn of the debtor to close confinement. The act of 1839, so far
as it provides for a trial before a jury, of the question of fraud,
is in violation of the constitution, for no such jurisdiction to pun-
ish can be given to a justice of the peace. Hence, if the act con-
templates notice to be given, it js only to enable the party to en-
ter upon a trial which would be illegal, and in this view the no-
tice is unnecessary.
The surrendor by the debtor, was an entire discharge of the
bond. He is required, at the expiration of sixty days, to return
to close custody, and unless he does so, this is a breach of the
condition of the bond. [McMichael v. Rapelye, 4 Ala. Rep 383.]
The effect of a surrender, whether by the principal or by the
sureties, is a discharge of the bond.
GOLDTHWAITE, J— 1. All the questions in this case, in-
volve the construction, more or less, of the act abolishuig im-
prisonment for debt, and cannot well be determined without as-
certaining its true meaning and extent.
292 ■ ALABAMA.
Morrow and Nelson v. Weaver and Frow.
The first section of this act provides, "that if a plaintiff, or his
agent, shall make oath of the amount of the indebtedness of any
one to such plaintiff, and that the debtor is about to abscond, or
such debtor has fraudulently conveyed, or is about fraudulently
to convey, his estate or effects, or such person hath moneys liable
to satisfy his debts, which he fraudulently withholds ; then, and
in that case, it shall be lawful to arrest the body of such debtor,
-either by bail process, capias ad satifaciendum, or other process
to arrest the body, known to the law ; but in case the debtor thus
arrested, shall make oath that the particular ground upon which
he is arrested, is untrue, and that he hath neither estate, effects or
means, whereby to satisfy the same, then he shall be released by
the arresting officer, immediately."
So far in the act, no very serious difficulty as to its meaning is
supposed to arise. The creditor is only entitled to cause the ar-
rest to be made, by making oath of the amount of his debt, and
swearing to one of the four facts named by the act. When the
debtor is arrested, he is dealt with in precisely the same manner
as he would have been, if this act never had been passed. If it
is mesne process, he either procures bail, or is at the risk of the
sheriff; if it is final, he either goes into close confinement, or is
allowed the benefit of the prison limits, upon giving the statutory
bond and security. But in either case, if he chooses to do so, and
his conscience will justify that course, he may make oath that the
particular ground on which he is arrested, is untrue. When ar-
rested on final process, in addition to the oath, he must also swear,
that he has neither estate, effects or monies, whereby to satisfy
the debt, or liable for the same. Whether this latter oath is
likewise required when the arrest is on mesne process, we need
not now inquire. Upon taking this oath, he is to be released im-
mediately.
It results from this brief analysis of this section, that the dis-
charge from the arrest can only take place, by reason of the
debtor's denial of the truth of the ground assigned for his arrest,
when the party is in actual custody of the officer. But it does
not, we think, follow, that he can never be discharged, if he omits
to take the oath, until after he is enlarged on bail, or on prison
bounds. This will be evident, when we consider, that on mesne
process he may at any time, be surrendered by his bail, and that
he is then held by the sheriff, under the original authority. Be-
JUNE TERM, 1845. 293
Morrow and Nelson v. Weaver and Frow.
ing thus held, there is tlie same reason to discharge him, upon his
taking the requisite oath, as there would be if the sheriff, during
the entire interval between his arrest and the surrender, had con-
tinued him in actual custody. The statute does not speak of his
being discharged by his bail, or by his securities for the prison
bounds, when the oath is taken, but directs that he shall be re-
leased by the arresting officer, immediately — that is, as soon as
the proper affidavit is made — for doubtless the oath must be in
writing, and delivered to the arresting officer, as his justification
for permitting him to go at large.
Under this section, it is entirely evident, we think, that the in-
tention of the Legislature was, to put oath against oath, without
requiring any notice wh atever to be given, or interposing any
restriction, except upon the conscience of the debtor. This con-
struction of the first section of the act, is sufficient to enable us
to determine that the first plea demurred to is- bad, as it asserts a
discharge by due course of law, in consequence of a denial of the
ground upon which the debtor was arrested. The discharge un-
der this oath, as we have shown, can only take place when the
debtor is in custody of the arresting officer. It is not necessary
therefore, to examine the other supposed defects of this plea.
2. The other plea asserts a similar discharge, as the conse-
quence of rendering in a schedule of his estate, under the second
section of the act. So much of that section as it is necessary to
construe is in these words : « When a plaintiff, or his agent, shall
take either of the alternative oaths required by the last section,
and the same shall not be controverted by the oath of the debtor,
then such debtor may discharge himself from said arrest, by ren-
dering a schedule of all his estate, effects, choses in action, and
moneys, which he has in his possession, or is entitled to, and tak-
ing" a particular oath, which it is not necessary to repeat here.
" And if the plaintiff shall desire to controvert the truth of such
oath, or schedule, then, on making oath that he believes the same
to be untrue, any justice of the peace shall be legally authorized
to summon a jury of twelve men, instanter, to try the question,
whether such oath or schedule is untrue, and fraudulent, or not ;
and said jurors shall be liable to the challenge of either party, as
in civil cases." The remaining section directs what shall be the
consequences of a verdict against the debtor ; one of which is im-
prisonment, not exceeding one year ; and another is, that he
294 ALABAMA.
Morrow and Nelson v. Weaver and Frow.
shall forever be debarred from the beneficial provisions of the
act.
It is this portion of the statute, of which it is difficult to ascer-
tain what the intention of the Legislature was ; but if it stood
alone, and unaided by other enactments in relation to the same
subject matter, it cannot, we think, be questioned, that a proper
construction would require the creditor, or his agent, to be noti-
fied, that the debtor intended to discharge himself, by rendering
in the schedule, and taking the oath prescribed by the statute ;
for otherwise, it would be impossible to give effect to that part
which provides, that in case of a verdict against him, the debtor
shall be debarred from the beneficial provisions of the act. This
part of the enactment, therefore, seems to indicate the intention,
that the debtor should not be discharged until after the contro-
versy between himself and the creditor. The difficulty of con-
struction however, is lessened, when the other statutes in rela-
tion to the same subject matter are examined. We have heretofore
held, in the case of Wade v. Judge, 5 Ala. Rep. 130, that the act
of 1839 was to be construed in connection with the other legisla-
tion upon the same subject matter, to ascertain how, and in what
manner, the property surrendered should be disposed of; and in
whom the title became invested by the surrender. The same
rule of construction will refer the matter of notice, left doubtful
by the act of 1839, to that of 1821, which provides, very fully,
how it shall be given, and when. By that act it is made the du-
ty of the judge, or two justices of the peace, to whom the applica-
tion is made for the discharge, to appoint a time and place, and
to cause at least ten days notice to be given to the creditors, their
agents. &c., if within the State, and twenty days notice, by ad-
vertisement, if without the State ; it also provides what the notice
when served on the creditor, shall, advise him of. [Clay's Dig.
275, § 9.] This act also provides the mode and manner in
which the hearing shall be had, and the discharge made.
The only difficulty there is, of engrafting the second section of
the act of 1839 upon that of 1821, is, that the former permits the
oath of the debtor, and his schedule, to be controverted before
one justice of the peace, while the former act requires the action
of two to receive the schedule and grant the discharge. This
difficulty is nothing more, however, than an incongruity, which is
sometimes found to exist in other cases, when several statutes to-
JUNE TERM, 1845. 2&5
Morrow and Nelson v. Weaver and Frow.
gether make one general system ; but it offers no serious im-
pediment to the operation of tiie law. The application for a dis-
charge must be made to a judge, or to two justices of the peace,
and they proceed to hear and determine the application for a
discharge, and make the requisite orders respecting the property,
&c. surrendered. If the creditor, beyond this, wishes to con-
trovert either the oath or the schedule, any one of the justices
would form a court, competent for that purpose, and we cannot
doubt, that the verdict of a jury, under the act of 1839, would
have the effect, as it is declared it shall, to debar the debtor from
the beneficial provisions of the act.
3. We need not perhaps have said so much, if our only object
was to show the badness of the other plea demurred to, for that is
evidently vicious, under the conclusions to which we have come,
in not averring notice to the creditor, and also, because, if that
was given, there has been no discharge by a judge, or two justi-
ces, as prescribed by the act of 1821.
4. It only remains to consider the charge upon the evidence,
which is, that under the proof before the jury, the plaintiffs could
not recover. The proof showed, that the defendant voluntarily
went within the common jail, and placed himself in the custody
of the sheriff, while in the prison bounds. If this was done with
the intention of surrendering himself as a prisoner, and in dis-
charge of his sureties, we cannot doubt that it was adischargeof
the bond for the prison bounds. Whatever may be the local law
of New York, with respect to the inability of a prisoner, or his
sureties, to avoid such a bond there, by his surrender, it is certain
that it may be done under our laws. Indeed, if the prisoner
omits, at the expiration of sixty days, to surrender himself, with-
in the prison walls, that is a breach of the condition of the prison
bounds bond, as, after that time, the limits allowed by law are the
walls of the jail. McMichael, et al. v. Rappelye, et al. 4 Ala.
Rep, 353.] To require a debtor to surrender himself at an exact
day, and not allow him to do it in advance of that day, is a mat-
ter which, we think, is not a fair construction of the statute.
5. But the intention with which the surrender was made by
the debtor, was a main subject of inquiry before the jury ; if made
with the intention to discharge his sureties, and to impose on the
sheriff, the duty of holding him by virtue of the ca. sa. it was a
discharge of the bond ; but if the surrender was colorable merely.
290 = ALABAMA.
Brooks & Lucas v. Godwin.
and not intended for this purpose' it cannot have that effect. This
is a matter which should have been left to the jury, and having
been withdrawn from their consideration, by the generality of
the charge, the judgment must be reversed and remanded.
BROOKS & LUCAS v. GODWIN.
1. Where an attachment is issued by a justice in one county, returnable to a
Court in another county, the objection may be taken on error, although it
was not made in the Court below, if it has not been waived, by appearing
and pleading to the merits.
Error to the Circuit Court of Macon.
Attachment, by the defendant against the plaintiff in error.
Dougherty, for plaintiff in error.
, Peck, contra.
ORMOND, J. — The attachment in this case was issued by a
justice of the peace, for Russell county, returnable to the Circuit
Court of Macon. This, in Caldwell v. Meador, 4 Ala. Rep. 755,
was held to be a fatal defect. It is now attempted to distinguish
this case, from that, because there the objection was taken in the
Court below, but we are unable to see that this varies the case.
The want of jurisdiction appears on the face of the attachment,
which is the leading process in the action, and as there has been
no waiver by appearing, and pleading to the merits, it is avail-
ble on error. Let the judgment be reversed.
JUNE TERM, 1845. 297
The Governor, use, &«. v. Knight
THE GOVERNOR, USE, &c. v. KNIGHT.
1. A judgment nisi rendered upon a recognizance, when it does not con-
form to the recognizance, may be amended nunc pro tunc ; and if a mo-
tion for that purpose be ovenruled, the refusal may be revised on error.
Writ of error to the Circuit Court of Randolph.
A judgment was rendered in this case, reciting that the defend-
ant. Knight, being solemnly called to come into Court, as he was
bound by his recognizance to do, came not, but made default;
therefore, it was considered by the Court, that the Governor of
Alabama, for the use, &c., recover of the defendant and his sure-
ties, &c. the sum of two hundred and fifty dollars, &c., unless
they appear at the then next term, and show cause, &c. Ac-
cordingly, a scire facias was issued, and served on Knight and
his sureties, who appeared and moved to quash the same, be-
cause the judgment nisi did not specify the offence which the de
fendant was balled to answer. This motion was granted ; £uid
thereupon, while the parties were still in Court, the solicitor mov-
ed the Court, to amend the judgment nisi, that it might appear
for what oflTence Knight was called to answer, so that another
writ of saVe/acfas might issue, requiring the appearance of the
parties at a future term. This motion was founded on the in-
dictment, and recognizance, which were sujfiiciently special. But
it was overruled, and Knight and his sureties discharged.
Attorney General, for the plaintiff in error.
S. F. RicEj for the defendants;
COLLIER, C. J — We have always considered cases of this
character, as mere civil proceedings, in which either party sup-
posing himself aggrieved by the judgment of a primary Court,
may appeako an appellate tribunal. If the present wasre* integra,
we should be inclined to think that the mere refusal to permit the
judgment nisi to be perfected nunc pro tunc was not revisable
on error, inasmuch as it would not be definitive. It would per-
38
298 ALABAMA.
McLendon v. Jones.
haps be allowable to submit the motion a second time, or of-
tener, to the same Court, and even if this could not be done,
an action might be maintained against the defendants, upon their
recognizance. There can be no question that the data furnished
by the record, was such as authorized the proper judgment to be
rendered.
We say if this were a new question, we should not be disposed
to entertain a writ of error. A mandamus certainly appears to
us, to be the more appropriate remedy, but our predecessors held,
that where a motion to complete a judgment nunc pro tunc was
overruled, a writ of error would lie to revise the decision. This
is nothing more than a mere question of practice, and as no in-
convenience can result from adhering to that adjudication, we are
contented to allow the maxim stare decisis to control us. [Wil-
kersonv. Goldthwaite, 1 Stew. & P. Rep. 159.]
It results that the judgment of the Circuit Court must be revers-
ed and the case remanded.
McLENDON v. JONES.
1. The Circuit Court, independent of express legislation, has the power to
substitute a judgment, roU, or entry, when the original record is lost, and
the substituted matter becomes a record of equal validity with the ori-
ginal.
2. The maimer of correcting the loss, is to show, by affidavits, what the re-
cord contained, the loss of which is sought to be supplied. The substitu-
tion can only be made after a personal notice of the intention to move the
Court, and the notice must be sufficiently explicit to advise the opposite
party of what is intended, as well as to enable him to controvert the affida-
vits submitted.
Writ of Error to the Circuit Court of Heniy.
The proceeding commenced with a notice, directed to Mc-
Lendon, or his attorney, by which he is informed, that Jones, as
JUNE TERM, 1845. 299
McLendon v. Jones.
the executor of Abner Hill, on the 3d Monday of April, 1844, at
the Circuit Court, to be holden for Henry county, would proceed
to establish a judgment against the defendant, in the above stated
ease. (i. e. John Jones, executor of Abner Hill, deceased, v. Joel
T. McLendon,) obtained at the fall term of said Court, in the year
1839, or thereabouts, for the sum of one hundred and fifty dol-
lars, or thereabouts. This notice is dated 23d March, 1844,
and is signed on Jones' behalf by an attorney, in his name. It is
returned by the sheriff on the 30th March, " executed," but on
whom, is not stated. '. .
At the April term of the Circuit Court, this entry was made:
" It appearing to the satisfaction of the Court, that the original pa-
pers in this cause have been destroyed by fire, it is therefore or-
dered by the Court, that a copy writ, declarations and pleadings
be established, in lieu of the papers destroyed, and also, that the
plaintiff recover of the defendant one hundred dollars, as also
costs of this suit, for which execution may issue."
There is now assigned as error, that the Court erred —
1. In rendering judgment for the substitution of the original
papers, without proof of what those papers were.
2. Because the notice is uncertain in being addressed to McLen-
don, or his attorney, and because it does not appear that it was
served upon the former.
3. In rendering judgment on such proceedings.
J. Cochran, for plaintiffin error, cited the act of 1843, entitled
" an act to establish lost records in Henry county," p. 88, and in-
sisted, that none of the directions of that act had been pursued.
The notice itself, the foundation of the proceedings, is directed to
the defendant or his attorney, when it seems clear that personal
notice is requisite.
No counsel appeared for the defendant in error.
GOLDTHWAITE, J.— 1. The transcript in this cause shows
nothing which is sufficient to support the judgment rendered by
the Court ; whether the proceeding is an original one, in the man-
ner of an ordinary suit, or whether it is looked upon as a pro-
ceeding to substitute lost papees, or to supply a new record in
the place of one destroyed by fire, or other accident. The con-
300 ALABAMA.
McLendon v. Jones.
sequence is, that there must be a reversal of the judgment ren-
dered. But, as we are, perhaps, authorized to infer, from a no-
tice found in the transcript, this may be an attempt to supply the
record, and proceedings of a cause, in consequence of the de-.
struction of a former record, it will not be irregular to examine
into the power of a Court to do this, either as conferred by the
common law, or by statute.
The particular act of Assembly, approved 14th February,
1843, entited an act to establish lost records in Henry county,
does not seem to confer any new authority on the Circuit Court,
in this particular, or in any way affect that which it had, unless
the approval of the action of the commissioners then appointed,
and making its judgment thereon subject to revision in this Court,
by writ of error, is to be so considered. [See Acts of 1842-3, p»
88.]
The general statute, conferring jurisdiction on the Circuit
Courts, and their judges, gives them power to examine, correct,
and punish the omissions, neglects, corruptions and defaults of
clerks, &c. Clay's Dig. 294, § 29 ; but independent of this ex-
press grant of power, which perhaps does not extend to the case
of supplying a new record, where one has been lost, the authori-
ity exists in virtue of the full and plenary powerawith which these
Courts are invested, to "minister ample justice to all persons, acr
cording to law."
Cases must frequently have occurred in which, by accident,
the records of Courts of justice have been destroyed or lost, and
it would seem strange, if the common law had provided no ade-
quate means, by which the injuries growing out of such accidents
could be averted, or remedied. Although, in the elementary
works upon the science, we can find no express reference to such
a power, yet this may arise from the fact, that its existence was
never questioned. In the first, and indeed only case, we have
found in the English reports, upon the subject, the substitution of
the entire record seems to have been considered quite a matter of
course. All that is said, is a neglect of entering judgment, and a
loss of the roll having been sufficiently shown to the Court, a
rule was made, that the clerk should sign a new roll, whereon is
entered the judgment signed in the cause in Michaelmas term,
1729. This was thirty years previous to the motion to supply
the loss. [Douglass v. Yallop, 2 Burr, 722.] Soo too, in Jack-
JUNE TERM, 1845. mi
McLendon v. Jones,
son V. Smith, 1 Caine's 496, the Supreme Court of New York al-
lowed the party to make up and file a new nisi prius record,
with apostea to be indorsed thereon, conformably to the min-
utes of the trial, and also, to enter up judgment and issue exe-
cution. This was done after a lapse of six years, upon an affida-
vit that the record roll had been lost or burned. In White v.
Lovejoy, 3 John. 448, afi. fa. upon a levy having been acciden-
tally burnt, the Court ordered a newji.fa. to be made out, and
delivered to the sheriff. In our own Courts, it has long been the
practice to permit the substitution of copies, when the original
papers have disappeared from the files, either by accident or de-
sign. [Dozier v. Joyce, 8 Porter, 303 ; Williams v. Powell, 9
Porter, 493 ; Wilkinson v. Branham, 5 Ala. Rep. 608.]
From the authorities cited, it seems clear, that judgment rolls
and entries, may be substituted, when the original records are
lost, and that the matters thus substituted, by order of the proper
Courts, become records of equal validity to those which are de-
stroyed.
2. The manner of correcting the loss appears, from the cases
cited, to be, to show by affidavits, what the records contained,
the loss of which is to be suppHed. Of course the substitution
can only be made after a personal notice of the intention to move
the Court, and this notice should be sufficiently explicit to advise
the opposite party of what is intended; and such also as will ena-
ble him to controvert the affidavits submitted in support of the
motion. If the affidavits are met with denials, by counter affi-
davits, it will obviously be necessary to proceed with the utmost
caution ; and when the evidence leaves the matter doubtful, or
uncertain, the motion ought to be denied.
In the present case, the notice is defective, as not containing a
sufficient description of the record proposed to be made anew, or
its conformity with that which is said to have been destroyed,
therefore it is useless to remand the case, as the motion ought not
to be entertained upon the notice given.
Judgment reversed.
302 ALABAMA.
The State v. Marshall, a slave.
THE STATE v. MARSHALL, A SLAVE.
1. Notwithstanding the enumerated causes of challenge in the Penal Code,
the Court may, in its discretion, reject such as are unfit or improper per-
sons, to sit upon the jury, and may excuse those from serving who, for
reasons personal to themselves, ought to be exempt from serving on the
jury. So, also, the Court may reject any juror who admits himself open
to any of the enumerated challenges for cause, without putting him upon
the prisoner.
2. An application to an attorney at law, by a colored person, to draw a peti-
tion to the Legislature for his freedom, is not a priviledged communication
between attorney and client Quere, if the disclosure had been of the
fads\ipon which he rested his claim to freedom.
3. The owner of a slave is a competent witness for the State, upon a trial of
the slave for a capital offence.
4. It is competent to prove, on the trial of a colored person for a capital of-
fence, charged in the indictment as a slave, tliathe admitted himself to be
a slave. But where the proof was, that the prisoner had brought to the
witness a bill of sale of himself to one E, transferred to the witness by E,
which was objected to, because the bill of sale was not produced — Held,
that although this might be considered as an admission by the prisoner, of
his status, and that it was not therefore necessary to produce the instrument
by which it was evidenced, yet, as the jury may have been misled, and pro-
' bably acted on the belief that the bUl of sale was proof, that the prisoner
■ was, or had been the slave of E, in favorem vit(B,it was proper there should
■" be a new trial.
Novel and difficult questions from Mobile.
•r The prisoner was indicted in the Circuit Court of Mobile, for
burglary. The indictment contained two counts, in one of which
the prisoner is charged to be the property of Joseph Bryan, and
in the other, the property of some one unknown. The jury
found a general verdict of guilty, upon which the Court passed
sentence.
Pending the trial, a bill of exceptions was taken, by which it
appears, that upon the empannelling of the jury, one George W.
Gaines was sworn to answer questions, touching his qualifications,
and to the question asked by the Court, " have you any fixed
JUNE TERM, 1845. 303
The State v. Marshall, a slave.
opinion against capital or penitentiary punishments ?" answered,
that he had as to capital punishments." Upon which the Court
set him aside as a juror, without calling upon either the prisoner
or the State to challenge him.
William B. Sayre, being also called as a juror, and answering
that he "was not a house holder, or free holder," was in like man-
ner directed to stand aside.
Another juror being called and empannelled, the counsel for
the prisoner, for the first time signified their dissent to the Court
setting aside jurors who were challengeable for cause, when the
Court recalled Sayre, and called upon the State to challenge or
accept him — the State accepted him, and he being put upon the
prisoner, and the prisoner neither accepting or challenging,
but standing mute, the Court directed the juror to stand aside.
Two other persons were also called as jurors, who, on being
questioned as to their qualifications, said upon oath, that they did
not understand the English language sufficiently well to serve
as jurors, and thereupon the Court set them aside, without putting
them upon either the State or the prisoner.
Upon the trial, the prisoner proved that he was a bright mu-
latto, and that for a number of years he had acted as a free per-
son— that he owned property, or claimed it, and had made con-
tracts as a free person, To prove that he was a slave, the State
offered as a witness Joseph Bryan, charged in the first count of
the indictment, to be the owner of the prisoner, who stated that
he did not consider himself to be the owner of the prisoner.
That some six or seven years before, a bill of sale of the prisoner
had been transferred to him, by Isaac H. Erwin ; that in his opin-
ion he had acquired no right of ownership under the bill of sale,
that it was brought to him by the prisoner — that he had not giv-
en Erwin any consideration for it, nor had he ever conversed
with Erwin in relation to it. The prisoner objected to the testi-
mony, because of the interest of the witness, and because he could
not speak of an instrument of writing not in Court. The
Court overruled the objection, and permitted the witness to tes-
tify.
The State then offered B. B. Breeden, Esq. who testified that
several years before, the prisoner had applied to him to draw up
a petition to the Legislature for his freedom. Witness said, that
he prepared the petition, but that the prisoner never called for it,
304 ALABAMA.
The State v. Marshall, a slave.
nor had he paid witness for it. The witness was an attorney at
law, and the application was made to him at his office. The
prisoner objected to this testimony going to the jury, because the
facts were confidentially disclosed to the witness as an attorney at
law, and because the prisoner could not admit that he was a
slave. The Court overruled the objection.
The prisoner being convicted, moved in arrest of judgment^
because the verdict of the jury was general, and did not state up-
on which count of the indictment they found the prisoner guilty, and
did not ascertain whether he was the slave of Joseph Bryan, or
of some person unknown. The Court refused to arrest the
judgment, and certified the several matters above as novel and
difficult.
Hopkins and Dargan, for the prisoner, made th6 following
points :
The jurors were improperly set aside by the Court, although
challengeable for cause. There was no authority whatever for
discharging the jurors who professed not to know the English
language. If that were so, of which there was no proof, they
were still competent jurors.
The confession to Breeden, as an attoniey at law, was a privi-
ledged communication. [2 Russ. 554 ; 2 Starkie, 400 ; 2 Brod*
& Bing. 1 ; 6 Madd. Rep. 47.]
The testimony of Bryan as to the bill of sale, was incompetent
proof, [Archbold's P. 106.]
Attorney General and Phillips, contra, cited 1 Porter, 309;
2 Mason, 91 ; 4 State Trials, 1, 750 ; 14 Pick. 422 ; 2 Starkie,
396; 6 Madd. Rep. 47 ; 1 Blackford, 317; 6 Rand. 667 ; 9 Por-
ter, 126.
ORMOND, J.— The Penal Code provides, that the existence
of certain facts, when ascertained in reference to one, summoned
as a juror, in a criminal case, shall be a good challenge for cause.
The plain design of the statute was, to secure a fair and impar-
tial trial, by the selection of an impartial, intelligent jury, and to
accomplish that object, it secures to the accused the right to ob-
ject to jurors summoned to try him, who are liable to certain spe-
cified objections. The argument, in effect is, that the provision
JUNE TERM, 1845. 305
The State v. Marshall, a slave,
is for his benefit, and that therefore, he has the right to waive the
objection, and accept the juror. It is only necessary to state
some of these causes of challenge, to see that this argument is un-
tenable. Can it be possible, that it must be left to the prisoner
to say, whether he will be tried by one connected with him, by
consanguinity, or affinity — or who has a fixed opinion, as to his
guilt or innocence — or who has an interest in his conviction or
acquittal? It is true, the proposition does not seem so clear,
when applied to the want of a house hold residence, as an objec-
tion to a juror, but as the Legislature have thought proper to
make this a challenge for cause, in legal estimation it stands upon
the same footing. The right to challenge, is a legislative decla-
ration of the unfitness of the person for that particular cause, to
serve as a juror, and therefore the prisoner, in contemplation of
law, cannot be prejudiced by his rejection by the Court ; the de-
sign of the Legislature being, not to enable him to select such a
jury as he might desire, but to secure to him the right of reject-
ing unfit persons summoned as jurors. In a word, it was not
the intention of the act, to furnish the prisoner with the means of
packing a jury for his trial, but to secure him a fair trial, by an
impartial, intelligent jury.
It was not the intention of the framers of the act, that these enu-
merated causes of challenge, should be exclusive of all others ;
as it does not include persons, who by law are rendered infa-
mous from a conviction for crimes — infants, idiots, insane, or dis-
eased persons ; yet, it is perfectly obvious such persons are not
qualified to serve as jurors. Further, jurors free from any ob-
jection at the time they were selected, and summoned, might be-
come so afterwards. It is equally clear, that it was not the de-
sign of the Legislature, to impair the discretionary power of the
Court, to set aside any one, summoned as a juror, who, from any
cause, was unfit to serve as a juror, or who, from reasons per-
sonal to himself, ought to be excused from this service. This
power, so necessary to the proper exercise of the functions of
the Court, is expressly recognized in the 13th section of the 10th
chapter, as it respects grand jurors ; and in the 50th section, pow-
er is given to the Court to discharge a juror, for sufficient cause,
after the trial has commenced — to supply his place, and com-
mence the trial anew. We are not aware that this discretiona-
39
306 ALABAMA.
The State v. Marshall, a slave.
ry power has ever been doubted, nor are we able to perceive how
justice could be properly administered without it.
Of all the discretionary powers of the Court, this would seem
to be least liable to abuse, as it is altogether conservative. Its
exercise is confined to the exclusion of improper or unfit persons
as jurors, and how this could prejudice the accused, it is difficult
to conceive. If, in its exercise, the Court should reject a person
qualified to sit as a juror, how does that prejudice the accused ?
If a juror disqualified by law, is put upon the prisoner, the case
would be different ; but if he is tried by an impartial jury, he has
sustained no injury. This is the decision of this Court, in the
case of Tatum v. Young, 1 Porter, 298, and it has not since been
questioned. To the same effect is the decision of Judge Story,
2 Mason, 91.
These views dispose of all the questions relating to the rejec-
tion of jurors, and we now proceed to the consideration of the
other questions raised upon the record.
Confidential communications between attorney and client, are
priviledged, and cannot be divulged. The rule is not confined to
communications in reference to suits in existence, or expected to
be brought ; it is sufficient if the attorney is consulted profession-
ally. [Walker v. Wildman, 6 Madd. 47.] As, if he be em-
ployed to di'aw a deed, [Parker v. Carter, 4 Munford, 285,] or
to procure a sale under a mortgage, where there is a statutory
foreclosure. [Wilson v. Troup, 2 Cow. 197.] No inference
can arise from the statement upon the bill of exceptions, that
the communication was confidential, but the inference must be
that it was not, as the only fact disclosed, was one which it was
proper to make public. If the disclosure had been of the facts,
upon which the prisoner rested his application to the Legislature,
it might be different. It is not sufficient to exclude the testimo-
ny, that the witness was an attorney at law. The privilege of
withholding the facts disclosed, does not depend upon that cir-
cumstance, but that the disclosure was made to him projession-
ally. That does not appear from the facts disclosed, or from the
nature of the employment, which was such as did not require le-
gal skill, in its execution. We think, therefore, that this case is
not brought within the rule.
The propriety of the admission of the witness Bryan, depends
upon the question of interest. An interest to disqualify a wit-
JUNE TERM, 1845. 307
The State v. Marshall, a slave.
ness, must be a pecuniary interest in tiie event of the suit, inclin
ing him to the side of the party calling him. He was called to
prove, that the prisoner w^as a slave, being charged in one count
of the indictment to be the owner of the prisoner. Upon the as-
sumption that he was the owner of the prisoner, he was clearly
competent to testify for the State, as it was his interest to prevent
a conviction, the consequence of which would be, the certain
Joss of one half his value, and the possible loss of his entire
value.
It is however urged, that he has an interest in the record, which
disqualifies him from being a witness. This argument is found-
ed on the statute making compensation to owners of slaves exe-
cuted for crimes, and is as follows : « Whenever, on the trial of
any slave for a capital offence, the jury shall return a verdict of
guilty, the presiding judge shall have the same jury sworn to as-
sess the value of said slave, and the verdict of said jury, shall be
entered on the record of the Court, and the master or owner of
such slave, producing to the Comptroller of Public Accounts, a
transcript from the record of the Court, regularly certified by the
clerk, and the certificate of the sheriff, that any slave has been
executed in pursuance of the sentence of the Court, shall be enti-
tled to receive a warrant on the Treasurer for one half of the
amount assessed by the jury, to be paid out of the funds herein-
after provided for that purpose." [Clay's Dig. 474, § 19.] The
succeeding section authorizes the jury to refuse compensation to
the master, when he has been to blame for the offence committed
by the slave.
From this, it appears, that the verdict, and judgment against
the slave, does not entitle the owner, or master, to the compensa-
tion provided by the statute ; that right, is to be ascertained by a
subsequent proceeding, and may be refused upon that proceed-
ing. The previous verdict and judgment establishes nothing, but
the condemnation of the slave ; the right of the master to com-
pensation, and its amount, depends upon the evidence to be ad-
duced upon the subsequent proceeding.
Objection was alsomade to the testimony itself; what theobjection
was, does not very distinctly appear; but giving to the bill of excep-
tions aliberal interpretation, it may be considered,as a motion toex-
clude that portion of the testimony of the witness, which related to
the bill of sale from Erwin, upon the ground that it was secondary
308 ALABAMA.
The State v. Marshall, a slave.
evidence. It is very clear, that the bill of sale, was not evidence
before the jury, it not being produced, and its execution proved,
or its absence accounted for, so as to let in secondary evidence of
its contents ; and if the object of the testimony, was to prove that
the prisoner had once been the slave of Erwin, it should have
been excluded.
It does not however, distinctly appear, that this was the pur-
pose for which the testimony was offered, as there is an aspect of
the case, in which it was certainly competent.
It appears, that the prisoner brought to the witness, a bill of
sale of himself, which had been transferred by Erwin to the wit-
ness, who had never conversed with Erwin in relation to it, or
had ever paid any consideration for it. This transaction occur-
red some six or seven years before the trial, since which time it
appears, the prisoner has been acting as a free man, as the wit-
ness stated, that he did not consider himself as the owner of the
prisoner.
Upon the assumption, that the prisoner knew that the paper he
gave to the witness, was a bill of sale of himself, transferred to
the witness, which we think from the circumstances may be fair-
ly presumed, it was an act distinctly admitting his status, and
can be understood in no other light, than that of a request ,to the
witness to stand as his nominal owner. Considered in this as-
pect, the mention by the witness, of the fact that the prisoner
brought him a bill of sale, was wholly unimportant, as it proved
nothing but the admission of the prisoner, that he was a slave,
which would have been quite as potent, without the bill of sale,
as with it.
It is probable however, that the jury considered the bill of sale
in evidence before them, and establishing the fact, that the pris-
oner either was then, or had been the slave of Erwin, and in fa-
vorem vitae, as the jury may have been, and probably were mis-
led, by the permission to the witness to speak of the bill of sale,
without limiting the evidence to the fact of the admission of the
prisoner, to be inferred from the act, we think there should be a
new trial. This renders it unnecessary to consider the matters
urged in arrest of judgment.
Let the judgment be reversed, and the cause remanded, for
another trial, or until the prisoner is discharged by due course of
law.
JUNE TERM, 1845. 309
Duckworth v. Johnson.
COLLIER, C. J.— I am inclined to think, that the fact of the
prisoner's carrying a bill of sale from Erwin to the witness, can-
not be construed as an admission by the former that he was a
slave. There is no proof that the prisoner was aware of the con-
tents of the bill of sale, or that previous, or subsequent to that
time, he had spoken to the witness on the subject, requested
the witness to purchase him, or admitted that he was in servitude
to Erwin or any one else. In other respects I concur in the opin-
ion pronounced by my brother Ormond.
GOLDTHWAITE, J.— My judgment, uninfluenced by the
opinions of my colleagues, would lead to an affirmance of the
judgment of the Circuit Court, on all the questions reserved ; but
in a capital conviction, I cannot consent that it shall stand when
any member of the Court entertains a serious doubt of its cor-
rectness.
DUCKWORTH v. JOHNSON.
1. The plaintiff sold to the defendant a mare, which the latter was to pay for
by the labor of his two sons, for four months, at sixteen dollars per month ;
agreeing that if one of the boys, (whose health was delicate,) lost any time
by sickness, it should be made up. Thereupon the boys entered the plain-
tiff's service, and six or seven days afterwards, the healthiest of the two was
slightly sick at night, and the next morning he directed them to go home —
saying they need not return at the price above mentioned, but one might
return and work eight months — neither of them ever labored again for the
plaintiff; nor did he require them to do so : Hdd, that the defendant was
not in default, and that the plaintiff could not recover the price of the mare
in an action of assumpsit.
Writ of Error to the Circuit Court of Bibb.
This was an action of assumpsit, at the suit of the defendant in
error. The questions of law presented, arise upon a bill of ex-
310 ALABAMA.
Duckwortli V. Johnson.
ceptions taken at the trial, by the defendant below. It appears
that the plaintiff proved that he sold a mare to the defendant, at
sixty-five dollars, to be delivered to Chesly Payne, and to be paid
for by the defendant,i7i the labor of his two sons, for four months,
at sixteen dollars per month. It was agreed, that as one of the
boys was « puny," he was to make up the lost time, if any occur-
red, through sickness.
The defendant proved, that he sent his two sons to perform the
labor as agreed ; that they worked six or seven days, when the
healthiest of the two had a slight attack of sickness, at night, and
the morning after, the plaintiff told them to go home ; and that
they need not return again at that price. As they left, the plain-
tiff told one of them, that he might return and work eight months ;
but neither of them ever returned.
The defendant's counsel prayed the Court to charge the jury,
" that if the defendant sent his boys under the contract, to per-
form the labor, and the plaintiff sent them home, telling them
they need not return again at that price, then the defendant was
not bound to send them back again till it was intimated to him by
plaintiff, that he would receive them." Which charge the Court
refused to give. Defendant's counsel then , asked the Court to
charge the jury, that if the defendant sent his two boys to plain-
tiff, to work out the price of the mare, agreeably to the contract,
and after working six or seven days, Johnson sent them home,
telling them they need not return again at that price, ■which was
the price agreed upon by contract, that then Duckworth was not
bound to send them back again, unless demanded by Johnson.
This charge the Court also refused to give, but charged the jury,
that defendant was bound to send them back, without any demand
from Johnson, until Johnson refused to receive them, or have
them, positively and peremptorily. The jury returned a verdict
for the plaintiff, and judgment was rendered accordingly.
E. W. Peck and L. Clark, for the plaintiff in error.
P. Martin and B. W. Huntington, for the defendant in error.
COLLIER, C. J. — The contract of the parties, obliged the
defendant to permit his sons to work four months for the plaintiff,
at sixteen dollars for each month, to be applied in payment of the
mare, which the latter had sold to him. Like all other agree-
JUNE TERM, 1845. 311
Duckworth V. Johnson.
ments, it should be executed according to its legal construction,
and it is incumbent upon the defendant to show a performance on
his part, or a sufficient excuse for his failure.
It appeared that the defendant sent his sons to the plaintiff's
house, to labor according to his undertaking ; that one of them
having a slight attack of sickness, at night, the plaintiff told them
to go home, and that they need not return again at the price he
agreed to allow for them ; but that one of them could return and
work eight months. This conduct was a direct refusal to re-
ceive the services of the defendant's sons on the terms stipulated
and a dismissal of them from the plaintiff's employment. To do
this, it was not necessary that actual force should have been em-
ployed; a command to cease laboring for the plaintiff, and that
they need not return again, at the price fixed by the terms of the
contract, furnished an ample apology for the defendant's failure to
perform his undertaking. The latter need not have made anoth-
er offer of his sons' services ; but the plaintiff, if willing to recive
them, should have given notice to the defendant. Whether, in
the first instance, in order to put the defendant in default, a de-
mand of performance should have been made of him, we need not
inquire, as the sending of his sons to the plaintiff, presupposes
such demand, or dispensed with it.
The offer of the plaintiff, to permit one of the boys to work for
him, double the length of time both were to labor, at the price
stipulated for each, was not within the contract of the parties,
and without the defendant's assent, was not obligatory upon
him.
It results from what has been said, that the Circuit Court should
have charged the jury as prayed ; its judgment is consequently
reversed and the cause remanded.
312 ALABAMA.
Bell V. Owen.
BELL V. OWEN.
1. An action for refusing to comply with a contract of sale, made with a sheriff
upon a sale of property under execution, is properly brought in the name of
the sheriff.
2. Although a contract for the purchase of land, at a sheriff's sale, cannot be
enforced, if not in writing, signed by the party, yet it is unnecessary to aver
this fact in the declaration.
Writ of Error to the Circuit Court of Montgomery county.
Assumpsit by Bell against Owen, for refusing to comply with
a contract for the sale of land. The declaration contains two
counts ; the first of which recites that Poe had obtained judg-
ment, and sued out a j^./a. upon it, against one Reed, which was
levied by the plaintiff, as sheriff of said county, on certain lots of
land, described in the declaration ; that these, after being duly ad-
vertised, were exposed for sale, according to law, on, &c., when
the defendant became the highest bidder for the same, at $710 ;
it then alledges, that the defendant, in consideration that the said
plaintiff, as sheriff, would make him a deed for the lots so purchas-
ed, promised, and undertook, to pay him the said sum, when he
should make titles to the land ; it then avers a readiness to make
titles, and an offer to do so, upon payment of the money, and the
defendant's refusal. The second count differs from the first, on-
ly in stating that the land was put up on condition that the high-
est bidder should be the purchaser, and should pay the cash upon
receiving the plaintiff's deed for the lots sold, and avers that the
defendant became the purchaser, and refused to comply with
these conditions, although the plaintiff was willing to make a deed,
and offered to do so, if the defendant would pay him the price
bid.
The defendant demurred to each count of the declaration, and
the Court sustained the demurrer. This is now assigned as
en'or.
Hayne, for the plaintiff in error, cited Robinson v. Garth, 6
Ala. Rep. 204, to show that the action was properly brought in
JUNE TERM, 1845. 313
The State v. Bums.
the name of the sheriff, and Wade v. Killough, 5 S. & P. 450, to
show, that the averments of an offer to make titles, when the
money was paid, was sufficient, without tendering a deed.
No counsel appeared for the defendant in error,
GOLDTHWAITE, J.— 1. The decisions recently made by
us, in the cases of Robinson v. Garth, 6 Ala. Rep. 204, and Lam-
kin V. Crawford, at this term, show that the action is properly
brought in the name of the sheriff.
2. We are not aware that there is any material distinction be-
tween the mode of declaring for the breach of a contract of sale,
whether the subject matter of the contract is real or personal pro-
perty. Although with respect to the former, the contract can-
not be enforced unless it is in writing, signed by the party to be
charged therewith, yet it is not necessary to aver, that it was so,
in the pleadings. With respect to the form of the counts, in this
case, they seem to be substantially the same as the more gene-
ral one in Lamkin v. Crawford, and under the authority of that
case, we consider them as good.
The consequence is, that the judgment of the Circuit Court is
reversed and remanded.
THE STATE v. BURNS.
1. When a white person is indicted for an assault, with intent to kill and mur-
der, and the jury by their verdict, find him guilty of an " assavU vnth intent
to kiU,^^ the legal efiect of the verdict, is, that the party is guilty of an as-
sault, or assault and battery, as the case may be.
Error to the Circuit Court of Mobile.
The prisoner was indicted, and tried for for an assault with
intent to kill and murder, one David Walker. The jury found
him guilty of « an assault, with intent to kill." Upon this ver-
40
814 ALABAMA;
Roundtree v. Weaver.
diet, the Court rendered judgment, and sentenced the prisoner to
be confined in the penitentiary for two years.
Stewart, for plaintiff in Error.
Attorney General, for the State.
-?^
ORMOND, J— The case of Nancy, a slave, v. The State, 6
Ala. Rep. 483, is decisive of this. In that case, as in this, the
indictment was for an assault to kill and murder, and the verdict
for an assault to kill only, and we held, that the necessary intend-
ment of the finding was, that the prisoner was not guilty of an
assault with intent to murder, but of an assault to kill only. This
is not, in the case of a white person, an offence punishable by
confinement in the penitentiary, but is a mere assault, or assault
and battery as the case may be. The verdict was therefore no
authority for the sentence of condemnation passed by the Court,
which must be reversed, and the cause remanded, that the ap-
propriate judgment may be rendered upon the verdict. The
prisoner will remain in custody, until discharged by due course
of law.
ROUNDTREE v. WEAVER.
1. If a sheriff has become liable for a failure to collect the money upon an ex-
ecution, and pays the same to the plaintiff, another execution cannot be is-
sued on the judgment for the purpose of reimbursing the sheriff.
2. Where an execution is superseded upon the petition of the defendant, it is
competent to submit a motion to quash it, not only upon the grounds dis-
closed in the petition, but upon any other that will avail.
3. Semble, if the defendant approves the payment of an execution against
him, made by the sheriff, in whose hands it was placed for collection, by
moving to quash an alias fi. fa. upon the ground of such payment, the sheriff
may maintain an action of assumpsit to reimburse himself.
Writ of Error to the County Court of Dallas.
JUNE TERM, 1845. 315
Roundtree v. Weaver.
The facts of this case are briefly these; the defendant in error
obtained a judgment against the plaintiff, an execution was duly
issued thereon, and placed in the hands of Thomas O. Holloway,
then sheriff of Dallas, which he failed to collect ; thus he render-
ed himself liable, and was threatened with a rule, unless he ad-
^fi|||fced the money, or made some arrangement satisfactory to
the plaintiffin execution, or his attorneys. Holloway according-
ly confessed a judgment in favor of the plaintiff's attorneys for
the amount of the execution, which he has since paid over to
them. One of the plaintiffs in this latter judgment, advanced to
defendant in error the amount of his judgment, and was refunded
by Holloway.
It was the habit of the plaintiffs' attorneys, to allow to sheriffs
the benefit of judgments and executions on which they advanced
the money that they had failed to collect ; and it was the under-
standing in this case; that the execution was to be kept open for
Holloway's benefit.
Holloway had ceased to be sheriff before the confession of
judgment in favor of the plaintiff's attorney, and the execution in
this case subsequently issued for his benefit, according to the un-
derstanding between him and the plaintiff's attorney.
Upon these facts being shown, the County Court refused to
quash the execution, which issued for Holloway's benefit, and
dismissed a petition upon which a supersedeas had been granted.
G. W. Gayle, for the plaintiff in error, insisted that a sheriff
could not pay off an execution, and use it for his own benefit.
[6 Porter's Rep. 432 ; 4 Ala. Rep. 321.]
C. G. Edwards, for the defendant, contended, that the petition
for the supersedeas was properly dismissed, as it was not sup-
ported by the proof Further, the plaintiff had no agency in
the arrangement with his counsel and Holloway ; there was no-
thing unfair or oppressive in it, and it should be upheld.
COLLIER, C. J In Rutland's adm'r v. Pippin and another,
7 Ala. Rep. 419, it appeared that the sheriff of Greene, on the 19th
May, 1842, paid to the agent of the plaintiff in execution, the
amount due thereon, saving sixty dollars, the attorney's commis-
sions, (which they afterwards received.) This payment was an
316 ALABAMA.
Roundtree v. Weaver.
advance by the sheriff, in discharge of an official liability conse-
quent upon his neglect. In respect to the question, whether the
defendants could avail themselves of the payment of the amount
of the execution, so as to destroy the vitality of the judgment, we
said, « this cannot be regarded as a disputable point in this State."
The cases of Boren, et al. v. McGehee, 6 Porter's Rep. 441^ JL
Foumier v. Curry, 4 Ala. Rep. 323 ; Johnson v. Cunningham, 1
Ala. Rep. N. S. 257, are cited and considered conclusive against
the right to sue an execution on the judgment.
The facts of the case before us are quite as strong as those
stated in any previous adjudication upon the subject, and bring it
fully within the principle above stated.
We have not looked into the petitiun to ascertain if it harmoni-
zes with the proof adduced. The petition should certainly have
stated the facts truly, but its object was to supersede the execu-
tion, and that being attained, it was competent for the defendant
to submit a motion to quash the execution, not only upon the
grounds stated in the petition, but upon any other that would avail
him. This conclusion is so obviously correct, and consonant to
the practice in such cases, that it is difficult to illustrate it more
clearly.
In Rutland's adm'r v. Pippin and another, supra, it was sup-
posed to be unnecessary to consider, whether, if the sheriff paid
the money at the request of the defendant, he could not maintain
an action against them for money paid, laid out &c., or whether
the motion to quash, and thus obtaining the benefit of it, would
not warrant the presumption of a previous request, or subsequent
adoption of it. We may now add, that if the defendant approves
the payment, by moving to quash, we cannot very well perceive
how he can avoid a recovery, in an action at the suit of the sheriff
for his reimbursement.
Without adding more, we have but to declare, that the judg-
ment is reversed, and the cause remanded.
JUNE TERM, 1845. 317
Woodward, et aL v. Clegge.
WOODWARD ET AL. v. CLEGGE.
t '^ >h When lands are sold, and a bond for titles given by the vendor, to the pur-
chaser, and notes with sureties given for the purchase money, the sureties
are not discharged, in consequence of the title being conveyed by the ven-
dor, without pa3rment of the notes.
2. A party whose acceptance of service is not spread on the record, in the
first instance, may cure the defect, by admitting the fact, at a subsequent
term, although there are other parties to the suit
Writ of error to the Circuit Court of Talladega.
Assumpsit by Clegge, against Woodward, P. E. Pearson and
E. A. Pearson, on a promissory note. The defendants were not
served with process, but on the writ is indorsed an agreement,
purporting to be signed and sealed by them, waiving the neces-
sity for service by the sheriff. The Pearsons pleaded to the de-
claration—
1. Non-assumpsit.
2. That the note declared on was signed by them as sureties
of John S. Woodward, to secure the balance due on two other
notes, which had been executed to the plaintiff, by Woodward,
and the said P. E, Pearson as his surety, which notes were giv-
en to secure the purchase money for a certain tract of land, to
wit: &c., and described in the bond for titles executed by
the plaintiff to said Woodward. And that afterwards, the said
plaintiff-took up the bond for titles, which all the time had been
in the custody of Woodward, and executed to him a fee simple
convej'^ance of said land, thereby parting with the lien which the
said plaintiff had upon the land, for the payment of the said note.
3. A plea setting out the same facts as the second, with the
additional one, that Woodward afterwards conveyed the land
to one Rimpson, which the plaintiff had before conveyed to him.
The plaintiff demurred to the special pleas, and his demurrer
was sustained.
Afterwards a judgment was rendered by default against Wood-
ward, without setting out the proof of his acceptance of service,
and against the other defendants upon verdict.
318 ALABAMA.
Woodward, et al. v. Clegge.
At the next term after the rendition of this judgment, Wood-
ward came before the Court, and on the plaintiff's motion, it then
appeared to the Court, that due proof of service was made at the
previous term ; and the said Woodward consented to a rendition
of the judgment nunc pro tunc, which was entered then as of
the former term. Both judgments are against all the defendants, ^J..
and for the same sums.
All the defendants join in assigning errors, which are, that the
Circuit Court erred —
1. In sustaining the demmurrers to the special pleas.
2. In rendering the judgment given, under the circumstances
disclosed by the record.
S. F. Rice, for the plaintiff in error, insisted that the sureties
were entitled, in the event of payment, to be subrogated to all the
securities held by the plaintiff; and that the lien upon the title .to
the land is one of them ; arid that if this has been relinquished, the
sureties can never be placed in the same condition, and are there-
fore discharged. [Brown v. Long, 4 Ala. Rep. 50 ; Lucas v.
The Governor, 6 ib. 826 ; 1 Lord Ray. 174 ; 1 Chitty,218 ; Mc-
Kay v. Dodge, 5 Ala. Rep. 388.]
F. W. BowDON, contra, insisted —
1. That these pleas are bad, because they state the conclusion
of the pleader, that the lien is lost, without setting out the facts
from which that conclusion can arise. It does not necessarily
result, that the lien is gone for the purchaser may have known
the facts. [Frazier v. Thomas, 6 Ala. Rep. 169.]
2. The pleas do not disclose the condition of the land, so that
it cannot be known whether the title was made to Woodward on
a day certain, or upon the payment of the notes. The covenants
of the bond are independent, and therefore no defence can be
made to the notes. [Boone v. Eyre, 1 H. B. 273 ; Campbell v.
Jones, 6 Term. 670; Carpenter v. Cress well, 4 Bing. 409.] ,,;<.
3. The contract for the sale of the land being still in force,
the fact that the vendor has no title,or has deprived himself of it,
is no defence at law. [Clay v. Dennis,'3 Ala. Rep. 375; Young
V. Triplett, 5 Litt. 247.]
GOLDTHWAITE, J.— Although the special pleas relied on
JUNE TERM, 1845. 319
Woodward, et al. v. Clegge.
as presenting a defence to the action, may be objectionable on
account of the omission of necessary allegations, yet we choose
rather to consider them on more general grounds. The argu-
ment in support of their soundness is, that a creditor having a se-
curity which he can enforce against a principal debtor, cannot
discharge it, without its having the effect to release the sureties.
If this is even true, when a collateral security is taken from the
principal debtor, we have seen no authority to extend the princi-
ple so far as to compel the creditor to hold an equitable lien for
the benefit of the surety. In McKay v. Grenn, 3 John. C 56,
the object of the bill was to obtain for the indorser of a note, used
by its maker in payment for lands purchased by him, the benefit of
a lien upon the purchased lands. Chancellor Kent there said,
that the notion that the indorser had an equitable lien upon the
land, because the note he indorsed was applied in part payment
of the purchase money, is entirely without foundation. So with
us, in the case of Cullum v. Emanuel, 1 Ala. Rep. N. S. 23, a sure-
ty insisted, when a mortgage had also been given, that the lands
should be exhausted for his indemnity, instead of being applied to
the security of other notes without surety, but we considered his
claim as having no valid foundation.
It is said by an eminent jurist, that the principle of subrogation
seems in former times, to have been considered as authorizing the
surety to insist on the assignment, not merely of collateral secu-
rities, properly speaking, but also of collateral incidents, and de-
pendant rights growing out of the original debt. [Story's Eq. §
599, a.] But the extension of the principle is denied by the more
modem cases, and must be considered as firmly established. [lb.
§ 499, c. d. and cases there cited ; see also, Foster v. The Athe-
na3um, 3 Ala. Rep. 302.]
In the present case, the lien arising out of the circumstance,
that a bond only was executed to convey title at a future day, is
a mere incident to the contract, and is not in any sense a collat-
eral, or independent security, and therefore the sureties to the
note, which the creditor also required to be added, cannot be said
to have any rights which are aflected by a conveyance of the
title. There was then no error in sustaining the demurrer to
these pleas,
2. The rendition of the judgment against Woodward, without
proving his acceptance of service of the writ, was irregular, but
820 ALABAMA.
Magee v. Fisher, et al.
this objection being personal to him, was cured, when, at a sub-
sequent term, he came in person, and admitted upon the record
that the proof had been made. Independent of this admission, it
was entirely competent for the Court to cure the error, by enter-
ing the evidence upon the record nunc pro tunc. [Moore v.
Horn, 5 Ala. Rep. 231.]
Judgment affirmed.
MAGEE V. FISHER, ET AL.
1. The terms " indenture," " covenant," " demise," "and to farm let," though
usually found in deeds, are not technical. The use of these terms, there-
fore, in the declaration, does not necessarily imply that the instrument in
which they were alleged to be, was sealed. That is only effected by the
use of the terms " deed," or " writing obligatory."
2. A profert in curia, of a parol contract, is surplusage, aud does not vitiate.
3. Where several persons become bound for the payment of rent, in contem-
plation of law, the lease is to all, where there is nothing in the body of the
instrument to negative that conclusion.
Error to the County Court of Mobile.
Debt, by the plaintiff in error.
The declaration describes "a certain indenture of lease," exe-
cuted by the plaintiff of one part, and the defendants of the other
part, of which profert is made, by which, " the plaintiff did lease
and to farm let, to the defendants, a certain messuage, &c., to
have and to hold for the term of one year, &c., yielding," &;c.
" And the said defendant, did then, and there, covenant, promise,
and agree, to and with, the plaintiff, to pay him the said sum of
8550, at the said several times aforesaid." It then avers an en-
try upon the land, in virtue of the lease, and assigns as a breach
the nonpayment of the stipulated rent.
The defendants craved oyer of the instrument sued on, which
is set out and demurred to. The instrument as set out on oyer,
JUNE TERM, 1845.
Magee v. Fisher, et al.
is an " indenture," between William Magee of the first part, and
Samuel C. Fisher of the second part, for the lease of certain prem-
ises for one year, at a stipulated rent, and concludes thus : « In
witness whereof, the parties to these presents, have hereunto set
their hands, the day and date above written.
S. C. Fisher,
John Hurtel,
Chas. a. Hoppin."
The Court sustained the demurrer to the declaration, and ren-
dered judgment for the defendants, which is now assigned as
error.
J. Hall, for the plaintiff in error, contended, that the instru-
ment was set out according to its legal effect, and being for a sum
certain, debt was the proper action. That if not a « deed," the
fact that profert was made, cannot prejudice. He cited 1 Chitty
P. 107; 1 Stewart, 479.
Stewart, contra. The terms, « indenture, lease, covenant,*'
have legal and technical definitions, and must be understood in
their appropriate sense. The pleader cannot declare in such a
manner that he can consider the instrument as sealed, or not, as
may best suit his purposes.
There is also a variance between the instrument, and the de-
claration. The latter declares the lease was made to all the
defendants, whilst the former shows, it was made to but one.
ORMOND, J. — The objection in this case, is purely technical;
nevertheless if well founded, we have no authority to disregard it.
It having been found in practice, frequently difficult to deter-
mine, whether an instrument was to be considered as sealed, or
not, the Legislature passed the following declaratory act : " All
covenants, conveyances, and all contracts, which import on their
face to be under seal, shall be taken and held to be sealed instru-
ments, and shall have the same effect as if the seal of the party
or parties were affixed thereto, whether there be a scroll to the
name of such parties, or not." [Clay's Dig. 158, §41.] The
evident meaning of this is, that where the parties declare their
intention that the instrument shall be sealed, it shall so operate,
whether it be in fact sealed, or not. Upon an inspection of the
41
322 ALABAMA.
Magee v. Fisher et al.
instrument in this case, it appears, that although in the body of
the paper they have used terms of doubtful import, they have not
expressed their intention to make it a sealed instrument, and
therefore it cannot operate as such. The terms « indenture" and
"covenant/' though usually found in deeds, have not a technical
meaning. An instrument may be indented,whether under seal or
not, and the practice has in fact become obsolete. A covenant
is a contract, and is a vv^riting obligatory, or parol promise, ac-
cording as it is sealed, or not. The same remarks apply to the
terms " demise," and "to farm let." They are generally found in
leases, but may be expressed by other terms, and are therefore
not technical. Nor does it add any thing to the obligation of a
contract of lease, that it is under seal. The use of these terms,
therefore, in the declaration, does not necessarily imply, that the
instrument in vi^hich they were alledged to be, was sealed ; that
is only effected by the use of the terms « deed," or « writing obli-
gatory ;" and even when these technical terms are used, it is cus-
tomary to add, in conformity with the precedents, " sealed with
his seal." No such allegation being found in this declaration, the
legal effect ascribed to the instrument, by the pleader, is, that it
was a parol contract, and such in fact it was.
Making profert in curia of the instrument, was merely sur-
plusage, which does not vitiate.
The legal effect of the instrument is not changed by the fact,
that it commences in the singular number, and is signed by other
parties, whose names are not found in the body of the instrument.
In contemplation of law, the lease is to all, who by their contract
have become bound for the payment of the rent, there being no-
thing in the body of the instrument to negative that conclusion.
Let the judgment be reversed and the cause remanded.
JUNE TERM, 1845. 323
Hay den v. Boyd.
HAYDEN V. BOYD.
1. The act of 1839, which provides that in suits upon accounts, for a sum not
exceeding one hundred dollars, the oath of the plaintiff shall be received
as evidence of the demand, unless the same be controverted by the oath of
the defendant, does not make the defendant a competent witness to be
sworn generally and give evidence to the jury.
2. The plaintiif repaired, the defendant's gin, under an agreement that he
should have all that he could obtain for it above fifty dollars, to compensate
him for repairs ; he kept it in his possession several years, endeavored to
sell it, but was unable to find a purchaser ; the defendant addressed a note
to the plaintiff, demanding the gin or fifly dollars, which concluded thus :
" if yon do not give one or the other, we will have to settle the matter some
other way." The plaintiif, upon the receipt of this note, pennitted the de-
fendant to take the gin into his possession. Hdd, that the inference from
the evidence was, that the plaintiff voluntarily assented to the defendant's
demand, and could not recover for the repairs ; unless, perhaps, it could be
shown that the defendant had sold the gin for more than fifly dollars, or
that the repairs made it worth more than that sum, and instead of selling
he had used it
Wi'it of Error to the County Court of Benton.
This was a suit instituted before a justice of the peace, to recover
thirty dollars, for work and labor performed by the plaintiff in
error, for the defendant. A judgment being obtained for that
sum, the defendant appealed to the County Court, where a judg-
ment was rendered, upon a verdict in his favor.
On the trial, a bill of exceptions was sealed, at the instance of
the plaintiff, from which it appears, that the plaintiff was intro-
duced as a witness to prove his account of thirty dollars. After
the plaintiff had given his evidence, the defendant was offered by
his counsel as a witness, and declared on oath, that the testimony
he would give the Court and jury, should be the truth, the whole
truth, and nothing but the truth. To the introduction of the de-
fendant as a witness, in the manner proposed, the plaintiff object
ed, but not to the form of the oath, and his objection was over-
ruled.
32^ ALABAMA.
Hayden v. Boyd.
It was shown, that the defendant's gin, about four years previ-
ous to the trial, was placed by him in the plaintiff's possession, to
be repaired by the latter, and sold, upon the agreement that he
should have all he could obtain for it above fifty dollars, to com-
pensate him for the repairs. Plaintiff repaired the gin, tried to
sell it, but had been unable to find a purchaser. Some four or
five months previous to the trial in the County Court, the defend-
ant addressed the plaintiff a note, substantially as follows : " I
want you to send fifty dollars by the bearer, or my gin, as it has
been on hand long enough to have something done with it. If
you send me fifty dollars, the gin is yours, if you fail to do so, the
gin is mine, and if you do not give one or the other, we will have
to settle the matter some other way." Immediately after the re-
ceipt of this note, and in a day or two after its date, the plaintiff
informed the defendant that he could take his gin whenever he
called for it, that he (plaintiff) would not pay him the fifty dollars
demanded. From that time the plaintiff held the gin subject to
the defendant's order, and ready to be delivered, and some three
or four weeks thereafter permitted defendant to take possession
of it, and he now has it. The testimony given by the defendant
is also set out, but the view taken of the case, makes it unneces-
sary to notice it.
The plaintiff's counsel, recapitulating the facts above recited,
prayed the Court to instruct the jury, that if they believed them
to be true, they should return a verdict for the plaintiff; this
charge was refused.
S. F. Rice, for the plaintiff in error, insisted that the act of
1839, did not permit the plaintiff to be examined as a witness; it
only allowed him, by a denial of what the plaintiff testified, to
cause the rejection of his testimony. [Clay's Dig. 342, § 161 ; 3
Ala. Rep. 507 ; 5 Id. 196, 374 ; 6 Ala. Rep. 783.] The plaintiff
was entitled to recover for the repairs upon the gin. [4 Stewart
& P. Rep. 262 ; 4 Porter's Rep. 435 ; 6 Id. 344 ; 1 Stew. & P.
Rep. 178.]
T. A. Walker, for the defendant, insisted that the defendant's
examination was in conformity to the statute, and authorized by
it. That the return of the gin, instead of the fifty dollars demand-
JUNE TERM, 1845. 325
Hayden v. Boyd.
ed, was a relinquishment of the right to compensation, and the
plaintiff could not recover.
COLLIER, C. J.— It is enacted by the act of 1839, that "in
all suits to be commenced upon accounts for a sum not exceeding
one hundred dollars, the oath of the plaintiff shall be received as
evidence of the demand, unless the same be controverted by the
oath of the defendant ; but this section shall not apply to the case
of executors and administrators, trustees and guardians, when
sued." (Clay's Dig. 342, § 161.]
Under the act of 1819, which permits the borrower of money
to prove that a usurious rate of interest was reserved, unless the
lender will deny on oath the truth of his testimony, it has been held,
that he could not be sworn and examined as a witness generally.
And where the record affirms that he was offered as a witness,
without stating the object, if there was a defence other than usury
set up, it cannot be intended that his testimony was restricted to
the latter. [Richards, et al. v. Griffin, 5 Ala. Rep. 195.]
In Bennett v. Armistead, use, &c. 3 Ala. Rep. 507, it was de-
cided that the defendant could not be examined as a witness un-
der the act of 1839, (cited above,) that his only privilege was to
deny on oath the truth of the plaintiff's testimony, and thus ex-
clude it from the jury. See also, Ivy v. Pierce, use, &c. 5 Ala.
Rep. 374 ; Anderson v. Collins, 6 Id. 783.
In the case at bar, it appears that the defendant was sworn
generally, and gave evidence to the jury, notwithstanding the
plaintiff objected ; this was an irregularity which affects the judg-
ment in question.
The note addressed by the defendant to the plaintiff, is a de-
mand of the gin, or fifty dollars, and informing the plaintiff, that
if neither of the alternatives are complied with, then they would
« have to settle the matter in some other way." Assuming that
the contract of the plaintiff entitled him to retain the gin, until he
could find a purchaser for it, and still we think the defendant did
not obtain possession of it under such circumstances as make him
liable to pay the price of the repairs. The defendant was not
bound by the terms of his contract to pay it, but the plaintiff Was
to compensate himself by retaining all that the gin would sell for
above fifty dollars. No undue coercion seems to have been em-
ployed to induce the plaintiff to part with it. The concluding re-
326 ALABAMA.
Leiper v. Gewin.
mark in the note cannot be construed into a tiireat, that other than
legal measures would be resorted to, in order to adjust the rights
of the parties. There is then, nothing to show that there was a
rescission of the contract, without the assent of both parties, or
that the defendant employed or threatened violent measures to
obtain Ihe gin. We must understand that the plaintiff voluntari-
ly gave it up. Under these circumstances, we cannot think, that
the mere reception and retaining of it, imposed upon the defend-
ant the legal duty to pay for the repairs. The rescission must bo
taken to be a rescission by mutual consent.
Whether, if the defendant were to sell the gin at a price beyond
fifty dollars, or if the repairs should make it of greater value, and
instead of selling it, he should use it, he would be bound to pay the
excess to the plaintiff, are questions which do not arise upon this
record. For the error in the point first considered, the judg-
ment of the County Court is reversed, and the cause remanded.
LEIPER V. GEWIN.
1. In detinue against a sheriff, for a slave seized under execution, as belong-
ing to the defendant in execution, the latter is not a competent witness for
the sheriff to prove property in himself.
Writ of Error to the Circuit Court of Lawrence county.
Detinue, by Leiper against Gewin, for a slave. At the trial,
the plaintiff made title under a purchase from the sheriff, who
sold the slave as the property of one Niel, by virtue of an execu-
tion against him in favor of one Owen. The defendant then
proved a.Ji.fa. at the suit of the Branch Bank of the State of Ala-
bama against said Niel, by virtue of which, as sheriff of Law-
rence county, he levied again on the same slave, as the property
of Niel, and offered Niel as a witness to prove that he furnished
the plaintiff, Leiper, with the money paid for the slave, at the first
sale, as well as fraud in that purchase. The plaintiff objected to
JUNE TERM, 1845. 827
Leiperv. Gewin.
Niel as an incompetent witness, but the Court overruled the ob-
jection, and permitted the witness to give evidence to the jury.
The plaintiff excepted, and now assigns the admission of this wit-
ness as error.
L. P. Walker, for plaintiff in error.
A. FjIHopkins, for the defendant, cited Martin v. Kelly, 1
Stewart, 198; Jones v. Park, lb. 419; Pruitt v. Lowry, 1 Por-
ter, 101 ; Prewitt v. Marsh, 1 S. & P. 17, Standifer v, Chisholm,
lb. 449; McGehee v. Eustis, 5 S. & P. 426; Stevens v. Lynch,
2 Camp. 332 ; Holman v. Arnett, 4 Porter, 63 ; Reimsdyk v.
Kane, 1 Gall. 630 ; Chitty on Bills, 417 ; 12 East, 38.
GOLDTHWAITE, J.— None of the cases cited go to the ex-
tent of the decision of the Court below. It is true, the defendant
in execution, with us, is admitted as a witness for his vendee,
when the contest is between him and the creditor, or officer mak-
ing the levy. [Standifer v. Chisholm, 1 S. & P. 449; McKen-
zie V. Hunt, 1 Porter, 37.] But there is a marked distinction
between his capacity to testify under such circumstances, and
when he is called to support his own title against one who does
not admit that his is derived from the same source. We are not
informed by the bill of exceptions, whether the defendant has
sold the slave levied on, and applied the proceeds to the satisfac-
tion of the execution ; therefore it is unnecessary to consider how
far that circumstance would affect the interest of the witness ;
but the position assumed by the Court below, seems to be no-
thing more or less, than calling one to subject property to his own
debt. If this witness is competent, there is nothing to prevent a
debtor from pointing out the property of another, to satisfy an ex-
ecution against himself, and sustaining the levy by his own evi-
dence. It seems too clear to admit of doubt, that the effect of
such evidence would be to benefit himself, by discharging his own
debt. This is the precise case of Bland v. Ansley, 5 B. & P.
331, the principle of which seems generally to have been recog-
nized in England, and in this country. Thus, in Upton v. Curtis,
1 Bing. 210, it was held, in an action of replevin, by an under-
tenant against the landlord, who had seized chattels for rent due
to the tenant in chief, that the tenant was not a competent wit-
328 ALABAxMA.
Mooney v. The State.
ness to prove the amount of the rent due from the undertenant ;
and in Pratt v. Stephenson, 16 Pick. 325, the debtor was rejected
as a witness for the attaching officer. See also, Waller v. Mills,
3 Dev. 515. So in foreign attachment, the debtor is a compe-
tent witness for, but not against the garnishee. [Enos v. Tuttle,
3 Conn. 247.] Most of the decisions bearing upon this question
are collected in Cowen and Hill's Notes, 84, 91, 120, 1522,and the
result seems to be, that the defendant in execution is not a com-
petent witness for the creditor, or attaching officer, except in ca-
ses where his interest is balanced, in consequence of his liability
as a warrantor, or unless he cannot be a loser by setting aside
the act of the officer. In the case before us, if the plaintiff does
not recover, the debt of the witness is discharged, to the value of
the slave; he is therefore directly interested to defeat him, and no
equipoise of interest is shown.
Judgment reversed and cause remanded.
MOONEY V. THE STATE.
1. The words inveigle, entice, steal and carry away, in the Penal Code, (Clay's
Dig. 419, § 18,) denote offences of precisely the same grade, and may be in-
cluded in the same count of the indictment; and upon proving either, the
State is entitled to a conviction.
2. The offence of inveigling, or enticing away a slave, is consummated, when
the slave, by promises, or persuasion, is induced to quit his master's ser-
vice, with the intent to escape from bondage as a slave, whether the person
so operating on the mind and will of the slave, is, or is not present when
the determination to escape is manifested, by the act of leaving the mas-
ter's service, or whether he is, or is not sufficiently near to aid in the es-
cape if necessary.
Error to the Circuit Court of Montgomery.
The indictment charged, that the prisoner, and two others,
*<did unlawfully, and feloniously, inveigle, steal, carry and entice
JUNE TERM, 1845. 329
Mooney v. The State.
away, two negro slaves, the property of Francis M. Bamett, with
a view, then and there, feloniously and unlawfully, to convert the
said slaves to the use of them, the said Henderson Brewer, James
McKowen, and John, alias Jack Mooney." The prisoner de-
murred to the indictment, and his demurrer being overruled,
pleaded not guilty.
Upon the trial, as appears from a bill of exceptions, the State
offered evidence, tending to prove, that the defendants with oth-
ers, had entered into a combination to steal negroes in the neigh-
borhood, and that on the night of the 29th March, 1844, the pris-
oner admitted that he was furnished with a horse, and ten dollars,
and told by Brewer, to go to the residence of Barnett, and see
the said slaves, at a place designated, near Barnett's House, and
inform the negroes, that they, Brewer, and McKowen, would be
at that place on the next night, and be then and there ready to
take them off. That he communicated the message to the slaves,
finding them at the place, and left them, telling Brewer what he
had done. That Barnett, being advised of the effort to steal his
slaves, with some of his neighbors repaired to the place appoint-
ed, on the night of the 30th March, 1844. That the slaves were
at the place agreed on, between them and Mooney; that Brewer
and McKowen, came riding up.onhorseback, to the place where
the slaves were, and after inducing them to go with them a few
steps, were hailed, and fired upon by the party who were watch-
ing, upon which they abandoned the possession of the slaves, and
galloped off. On the next morning, the prisoner. Brewer, and
McKowen, were seen about ten miles from the place, the for-
mer aiding the latter in getting a horse, to make their escape.
Upon this state of facts, the Court charged the jury, that if
they found that the prisoner was, on the night of the 29th March,
1844, to meet the slaves named in the indictment, at the place
where they were subsequently seen by him, and that he had in
accordance with, and in furtherance of, a common design to ob-
tain and carry off the slaves, visited them, and delivered the mes-
sage, and that this was done with the view of inveigling, or en-
ticing, or aiding, in the inveigling and enticing said slaves to leave
their mastei^'s service, and go away, and further found, as afore-
said, that this was done with a view to convert said slaves to the
use of said Brewer, McKowen, and Mooney, or any of them ;
42
330 ALABAMA.
Mooney v. The State.
and should further find, that in pursuance of such advice, and
persuasion, the said slaves u-ere on the next night induced to
start, for the purposes aforesaid, and did, for any period of time,
no matter how short, leave their master's service, for the purpose
aforesaid, then they should find the prisoner guilty, under the in-
dictment; and, whether he was actually or constructively pre-
sent, on the night when the negroes were taken, would make no
difference.
The prisoner asked the Court to charge, that unless the State
proved all the allegations of the indictment, they must find for
the prisoner ; which the, Court refused, and charged that if the
prisoner was guilty of inveigling the slaves, from the possession
of their master, with a felonious intent, it would be sufficient.
To the charge given, and to that refused, the prisoner except-
ed, and a writ of error being allowed, he now assigns for error —
1. The judgment on the demurrer; and, 2. The charge given
and refused.
Belser, for plaintiff in error. The 18th section of the 4th
chapter of the Penal Code, on which this indictment is founded,
must be construed in connection with the two preceding sections,
and, so considered, is defective in not alledging that the slaves
were taken from the possession of the master, or owner. [4 Por-
ter, 410 ; 1 Gallison, 497 ; 2 Hawkins, 249.]
The indictment is double, charging distinct offences. [2 Mass.
163; 2 Lord Raymond, 1572; 9 Wendell, 203; Archbold's
Crim. PI. 25.]
The Court erred in its charge, as the prisoner was not actual-
ly, or constructively present, when the slaves were taken, and
was therefore not guilty of either stealing or inveigling the
slaves. [1 Russell and Ryan C. C. 25, 99, 113, 142, 249, 332,
421.]
The charge in the indictment must be proved as laid. [3 Day,
283 ; 2 Nott & McCord, 3 ; 2 Dev. & Batt. 390.]
Attorney General, contra. The statute does not require the
slave to be stolen out of the possession of the master, as was the
fact in Brown's case, cited from 4 Porter, 410.
The indictment does not charge distinct offences, and if it did,
as they are divisible, and of the same grade, it would be no valid
JUNE TERM, 1845. 331
Mooney v. The State.
objection. [4 B. & C 330 ; 2 Camp. 583 ; 2 Lord Ray. 860;
Ros. C. Ev. 90.]
To constitute the offence of inveigling, or enticing away a
slave, it is not necessary that the slave should come to the actu-
al possession of the offender ; it is sufficient, if the slave is induc-
ed by such persuasion, to leave his master's service.
ORMOND, J. — The objection urged against the indictment,
is, that it charges several distinct, substantive offences. The lan-
guage of the act is, "Every person who shall inveigle, steal, car-
ry or entice away, any such slave, with a view to convert such
slave to his own use, or the use of any other person, or to enable
such slave to reach some other State, or country, where such
slave may enjoy freedom, such person shall, on conviction, be
punished by confinement in the Penitentiary, not less than ten
years.'' [Clay's Dig. 419, § 18.] There does not appear to be
any tangible, or substantial distinction, between the terms " in-
veigle" or "entice," as employed in this act. Both signify to al-
lure, to incite, to instigate, to seduce, to the doing some improper
act. It is true, " entice" may be used in a good sense, but that
is not its natural meaning, and when so used, it is figurative, and
shown to be so by the context ; here it is evidently used in its
natural, proper sense. The word " steal" being technical, ordi-
narily imports a larceny ; but here it is evidently employed, as
a synonime of "carry away ;"ior the act declares that the offence
shall be complete, though there is no intention to convert the
slave to the use of the taker, or of any other person, which is an
essential ingredient in larceny. These are, then, all offences of
precisely the same grade, although there may be a slight distinc-
tion between the two classes of " stealing and carrying away,"
and ".inveigling and enticing." Whether, then, they are consid-
ered as distinct offences, or not, as the same penalty is provided
for each, they may be included in the same count of the indict-
ment.
Thus, in The State v. Murphy, 6 Ala. Rep 846, it was held,
that one might be charged in the same count, with " receiving
and concealing" stolen goods, though the language of the statute
was in the disjunctive," buy, receive, conceal, or aid in the con-
cealment of stolen goods."
In The Commonwealth V. Eaton, 15 Pick. 173, an indictment,
332 ALABAMA.
Mooney v. The State.
upon a statute forbidding any person from selling, or offering to
sell a lottery ticket, which charged, an offering and selling, was
held to be good. In Rex v. Hunt, 2 Camp. 583, upon an infor-
mation for a libel, charging the defendant with composing, print-
ing and publishing a libel, it was held to be sufficient, to prove
the publishing and printing. Lord Ellenborough said, « The dis-
tinction runs through the whole criminal law, and it is invariably
enough to prove, so much of the indictment as shows that the
defendant has committed a substantive crime therein specified."
In indictments for forgery, the established form is, to alledge
that the prisoner « feloniously, did falsely make, forge and coun-
terfeit, and feloniously did cause, and procure, to be falsely made,
forged and counterfeited, and feloniously did willingly act, and
assist, in the false making, forging, and counterfeiting, a certain
bond," &c. [3 Chitty's Crim. Law, 1066.] Here, as in this
case, distinct and substantive offences are not charged, but differ-
ent grades of the same offence, punished by the same penalty,
and upon proving either, the State is entitled to a conviction.
The question made upon the charges given, and refused, are,
whether, to constitute the offence of inveigling, or enticing
away a slave, it is necessary that the slave should come to the
possession, or be under the actual control of the accused.
To a correct understanding of this statute, it is necessary to
look at the condition of our statute law, as to this offence, previ-
ous to the adoption of the Penal Code. The statute then in exis-
tence, made the offence of stealing a slave, simple larceny, punish-
able capitally — and in Hawkins' case, 8 Porter, 461, it was held,
that the offence was not complete, as the slave was not to be con-
verted to the use of the taker, but to be conveyed to a free State,
and enjoy freedom, and therefore the act was not done lucri
causa.
So in Wisdomes' case, 51 1 of the same book, it was held, that
the offence was not consummated, until the prisoner was suffi-
ciently near the slave to aid him, if pursuit was attempted, or so
near as to be capable of taking actual control over him. Such
being the state of the law, at the time of the passage of this act,
no other construction can be put upon it, than, that it was intend-
ed to make a radical change in the law in this particular, and to
make the offence consist, not in the actual manucaption, but in
the seduction ofthe slave from his master's allegiance, and thus
JUNE TERM, 1845. S«3
Spyker v. Spence.
to strike at the root of the evil. If an actual asportavit was ne-
cessary to the commission of the offence, it could scarcely ever
be established, as the slave, an intelligent being, could by his co-
operation, produce the same result as an actual taking, in ihe case
of the theft of any other chattel.
It is, we think, therefore, perfectly clear, both from the phrase-
ology of the statute, and the mischief intended to be prevented,
that it was the intention of the Legislature, to create an offence
essentially distinct from larceny at common law. It is not the
fraudulent taking the goods of another, with intent to convert them
to the use of the thief, which is denounced by the statute, but it is
the influence exerted over the mind of the slave, as an intelligent
being, to quit his master's service. This is consummated, when
the slave, by promises or persuasions, is induced to abandon his
master's service, with the intent to escape from bondage as a
slave ; whether the prisoner so having operated on the mind, and
will of the slave, is, or is not present, when the determination to
escape is manifested, by the act of leaving the master's service,
or whether he is, or is not, sufficiently near to aid in the escape, if
necessary. This is to "inveigle or entice away," under the
statute, according to its strict letter, as well as its obvious intent
and meaning ; and the construction of the statute, by the Court,
in its charge to the jury, being strictly correct, its judgment is af-
firmed.
SPYKER V. SPENCE.
1. The President of a banking corporation, the charter of which does not con-
fer the power, either expressly or incidentally, is not authorized, without the
permission of the directors, to whom are intrusted tJie management of the
concerns of the institution, to stay the collection of an execution against the
estate of one of its debtors ; and if a sheriff omits to levy an execution, in
consequence of such an order from the President, it will not become dor-
mant, so as to lose its lien.
334 ALABAMA.
Spyker v. Spence,
Writ of error to the Circuit Court of Talladega.
This was an action of trespass, at the suit of the plaintiff in er-
ror, to recover damages of the defendant, for taking possession of
the storehouse and goods of the former. The defendant pleaded
"not guilty," and several special pleas, justifying the trespasses
charged, as sheriff, in virtue of a writ o{ fieri facias, &,c. The
cause was tried by a jury, who returned a verdict in favor of the
defendant, and judgment was rendered accordingly. On the
trial, the plaintiff excepted to the ruling of the Court. It is shown
by the bill of exceptions, that the plaintiff proved the taking of
the goods by the defendant, out of his possession, and their value.
The defendant offered evidence tending to show that he was
sheriff, at the time of the seizure ; and that he levied on the goods
under an alias fi.Ja., issued from the County Court of Montgo-
mery, on the 23d day of February, 1842, and founded on a judg-
ment rendered by that Court, at its May term, in 184], j against
Cummings &c Spyker. That an original fi. fa. issued on that
judgment, on the 9th June, 1841, and was placed in the hands
of the sheriff of Montgomery ; at that time, the goods levied on
were in the possession of Cummings & Spyker, in Montgomery,
the execution was returned without any money being made there-
on. The defendant also offered to prove, that on the 1st April,
1842, a proposition was submitted by Cummings & Spyker to
the plaintiff in execution, to take the goods in the defendant's pos-
session, as shown by the letters of C. & S., the letter of the plain-
tiff, and the deposition of the Cashier of the Branch Bank — all of
which make part of the bill of exceptions.
The questions presented for the decision of this Court may be
thus stated: 1. The plaintiff objected to each of the interroga-
tories proposed by the defendant to the witness. Whiting, (the
Cashier of the Bank,) as leading and inadmissible, and the an-
swers made by the witness to the same, because the commission-
ers authorized to take the deposition had not regularly certified
the same. 2. Plaintiff also objected to the reading of a certified
copy from the minutes of the proceedings of the board of direc-
tors, of the proposition submitted to the Bank by Cummings &
Spyker, although the same was vouched by the deposition of the
Cashier of the Bank, (of which it made a part,) to be a true copy
of a genuine paper in possession of the directory. Both these
JUNE TERM, 1845. 335
Spyker v. Spence.
objections were overruled, and the evidence allowed to be read
to the jury. 3. Evidence was adduced to show, that the execu-
tion which issued upon the judgment in favor of the Bank against
Cummings & Spyker, on the 9th June, 1841, was returned by
the sheriffof Montgomery, indorsed thus, « stayed by order of
John Martin." Thei*e was no evidence of the authority of Mar-
tin to control the execution, unless the fact of his being the Presi-
dent of the Bank conferred such a power. Upon this point the
jury were charged, " that to make the stay of the execution ope-
rative against the Bank, the sanction of the directors of the in-
stitution was requisite ; that the President of the Bank, merely as
such, had not the authority to control the execution, and without
further proof of authority, express or implied, it could not be le-
gall}' inferred ; and if the President had no authority, it would be
the same as if not ordered at all : and the lien which may have
attached would continue operative." 4. It was proved that the
proposition of Cummings & Spyker, and to which the plaintiff as-
sented by his letter, was rejected by the Bank, and some days
afterwards, when it was ascertained that the Bank could find a
suitable purchaser for the goods proposed to be given up to it,
the directory took up the proposition and accepted it, with some
modifications, without a renewal of the plaintifl''s assent. Upon
this point the jury were charged, that if they believed " the pro-
position was made to the Bank by Cummings & Spyker, and ac-
companied by the proposition of plaintiff", was, when first acted
on by the board, rejected, and afterwards was taken up, acted
upon and accepted by the board, the same would not be binding
on the plaintifl^, unless he had subsequently assented to the same,
though he may not have communicated su(:h assent to the
Bank. 5. There was evidence tending to show that the defend-
ant sold a portion of the goods levied upon, before the plaintiff's
letter to the Bank was written ; and the plaintiff, by way of re-
butting testimony, offered to prove the value of such goods, but
the defendant objected, and his objection was sustained.
L. E. Parsons and E. W. Peck, for the plaintiffin error, made
the following points: 1. If the defendant was a trespasser in
levying on the goods, their subsequent sale by the Bank, though
made with the assent of the plaintiff, will not bar a recovery, but
will mitigate the damages merely. [7 Porter's Rep. 466 ; 8 Id.
336 . ALABAMA.
Spykerv.Spence.
191 ; 7 Johns. Rep. 254 ; 10 Id. 172.] This being the law, the
evidence to show the value of the goods sold by the defend-
ant, by way of rebutting testimony was clearly admissible. 2.
The objections to the deposition of the Cashier of the Bank, were
well taken, and should have been sustained. 3. The copy of C.
&S.'s proposition, was at most a copy, of no higher grade of ev-
idence than hearsay ; the original, which it is to be inferred was
in writing, if it could avail anything should have been adduced.
4. Conceding that the direction of the sheriff of Montgomery to
return the execution, was made without a sufficient authority,
and still it is insisted that there Was no operative lien as against
the plaintiff, who purchased bona fide, before the levy of the alias
fi,fa. of the vendee of C. & S. [8 Johns. Rep. 348 ; 9 Id. 132 ; 2
Johns. C. R. 284; Horton v. Smith, awte; 6 Ala. Rep. 891.]
5. The President might, in virtue of his office, have given the or-
der to the sheriff, to stay proceedings upon the execution, and
return the same unsatisfied. [1 Ala. Rep. 388 ; Id. 398.] The
charter requires him to take an oath to perform his duties faithful-
ly, and he is required to give a bond to that effect ; in the absence
of all proof upon the point, the reasonable inference is, that if his
powers as President, did not authorize him to control the execu-
tion, the directory had regularly conferred such authority. In
proceedings against clerks, sheriffs, &c. for official neglect, the
law presumes that they have done their duty, until the contrary
is shown ; and will not the same reasonable presumption be in-
dulged in respect to the President of a Bank. 6. The execution
then became dormant by the order to the sheriff of Montgomery
to stsrj'' proceedings upon it. [5 Ala. Rep. 44 ; 2 Johns. Rep.
422 ; 8 Johns. Rep. 18, 41, 348 ; 9 Id 132 ; 11 Id. 110 ; 15 Id,
429 ; 17 Id. 274 ; 2 T. Rep. 596 ; 4 East's Rep. 523 ; Salk. Rep.
720; 1 Ld. Raym. 251 ; 5 Mod. Rep. 377; 7 Id. 37; 1 Esp.
Rep. 205; 1 Camp. Rep. 333.] 7. The lien of the first ^./«.
was lost by the failure to levy it in Montgomery ; consequently
the alias fi. fa. to Talladega, could not relate back so as to de-
feat the sale of the goods made in the interim by Cummings &
Spyker. [5 Dana's Rep. 273.] 8. The proposition of C & S.
with the assent of the plaintiff was virtually withdrawn by its
rejection ; to make it a binding contract afterwards upon the
plaintiff, he should have had notice, that he might ratify it, if
necessary ; this was more especially necessary as the proposi-
JUNE TERM, 1845. 337
Spykerv. Spence.
tion was accepted with modifications. [9 Porter's Rep. 191 ; 5
Ala. Rep. 623.] The plaintiff had the right to stand on the pre-
cise terms of his offer to the Bank, and nothing more could be
required of him. [5 Ala. Rep. 388.] 9. Corporations are charge-
able with the acts of their agents or servants. [7 Mass. Rep.
169; 7 Cranch's Rep. 299; 12 Johns. Rep. 227; 14 Id. 118;
14 East's Rep. 6.]
A. F. Hopkins and W. P. Chilton, for the defendant. Con-
ceding that the President of the Branch Bank was authorized to
direct a stay of execution, and it is contended that the lien was not
discharged thereby ; to give to the delay that effect, it must have
been fraudulent. [5 Ala. Rep. 43 ; Id. 623.] The vendee of
the firm of Cummings & Spyker was one of the firm, and of
course informed of the unsatisfied judgment in their favor; and
the plaintiff who purchased from him, is merely substituted to
the situation he occupied.
It must be intended that the original^, fa. was returned at the
proper return day, « delayed by John Martin," [4 Ala. Rep. 534;
G Id, 248 ;] and the return is inoperative for all purposes. To
give it effect, it should at least have been shown that the execu-
tion was stayed by John Martin, the President of the Bank, in
his official character, and that he was authorized to give such
direction to the sheriff. Being President did not invest him with
such authority. [Clay's Dig. — , §§ 4, 5 ; 11 Mass. Rep. 94 ; Id.
288; 14 Id. 180; 17 id. 29; Id. 97; Id. 505; 12 Serg. & R.
Rep. 256 ; Ang. & A. on Corp. 243 ; 6 Peters' Rep. 51 ; 8 Id.
16.]
In procuring a sale of the goods to be made to the plaintiff in
execution, and ratifying it, (as the jury have found,) the plaintiff
surrendered whatever right he had to them, or damages conse-
quent upon the levy. The pleas merely put in issue the fact of
the fi. fa.' s having been in the sheriff's hands as alledged ; the
replications do not set up the delay as a matter that avoided
the liens. [3 Porter's Rep. 43 ; 7 Id. 167; 3 Ala. Rep. 382,]
As to the goods sold by the plaintiff, they are specifically set
out in the pleadings, and proof of their value, if material, should
have been part of his evidence in chief.
The copy of the proposition of C. & S. to the Bank, was not
used as evidence in the manner supposed. The proposition con-
43
338 ALABAMA.
Spyker v. Spence.
tained in the certified copy of the minutes of the directory was
verbally made by C. & S.; the original, or first of the several pro-
positions was in writing, and produced in the Circuit Court. Up-
on this point, there is no error. 1. Because the evidence was
upon a collateral inquiry. 2. Because the second proposition
was merely verbal, and the copy merely a transcript of the min-
utes of the board, upon which it was entered; and, 3. Because
the agreement to which all the parties assented, and which has
been executed, was before the Court.
They denied the application of the case cited from 5 Dana,
and insisted that later adjudications have explained it, so as to
show that it was not an authority favorable to the plaintiff.
COLLIER, C. J.— The act of 1807 declares, that no fieri fa-
cias,or other writ of execution shall bind the property of the goods
against which the same is sued forth, but from the time such writ
shall be delivered to the sheriff, &c. to be executed. [Clay's
Dig. 208, § 41.] Under this statute it has been held, that the lien
attaches as soon as the execution is received, upon the personal
property of the debtor within the county, and it will bind goods
that may be brought within its influence, while it continues ope-
rative. [Hester, et al. v. Keith & Kelly, 1 Ala. Rep. N. S. 31 6 ;
Wood V. Gary, et al. 5 Id. 43.]
When the lien once attaches, it cannot be lost without some
act with which the plaintiff is chargeable, or neglect which the
law makes prejudicial to his rights^ [Wood v. Gary, et al. supra.']
Certainly the removal of the property to another county, without
the consent or connivance of the plaintiff, will not impair it. The
lien, it is true, does not divest the property of the debtor ; he may
(certainly until a levy has been made,) pass the legal title to a
third person, by a sale, subject however to be defeated by a sub-
sequent levy, and sale, under the same, or another execution issu-
ed upon an operative judgment, regularly continued and connect-
ed therewith. [Addison, et al. v. Crow, et al. 5 Dana's Rep.
273 ; Claggett v. Force, 1 Id. 428 ; Collingsworth v. Horn, 4
Stew. & P. Rep. 237 ; Lucas v. Doe ex dem. Price, 4 Ala. Rep.
679; Hill v. Slaughter, 7 Ala. Rep. 632.]
These citations abundantly show, that the mere neglect of the
sheriff to levy afi.fa. will not have the effect to deprive the plain-
tiff of the rights which accrued in consequence of its delivery to
^
JUNE TERM, 1845. 339
Spyker V. Spence.
be executed. In the case cited from 5 Ala. Rep. it was said,
that "to render an execution dormant there must be some act of
the plaintifFinconsistent with the pursuit of the defendant, by exe-
cution to obtain satisfaction of the judgment." In the present case,
the goods on which the defendant is charged to have wrongfully
levied in Talladega, were in Montgomery, and in the hands of
the defendant in execution when the original^. /a. was delivered
to the sheriff. This being the case, it is material to inquire wheth-
er the sheriff was authorised to return the execution without levy-
ing it, or attempting to make the money thereon.
The charter of the Branch of the Bank of the State of Alaba-
ma at Montgomery, provides for an election by the General As-
sembly, annually, of a President, and twelve directors to manage
the concerns of the institution. To carry out this general pur-
pose, the President and Directors are jointly invested with cer-
tain enumerated powers ; the former is required to preside at all
meetings of the directory ; is authorized to move for judgment
against a defaulting debtor, after the service of notice, and certify
that the debt in question is bona fide the property of the bank ; he
is required to co-operate with the Governor, &c. in issuing State
stock, to create an additional capital, and to sign notes directed to
be issued by the President and Directors. [See Clay's Dig. 90
to 94.] These are the only^r principal powers and duties con-
ferred upon the President, IRconnected with the directory; all
his expressly delegated powers are as a member of the directorial
board.
The rights, authorities, and mode of transacting the business of
a corporation, depend, not upon the common law, but upon the
legislative act by which it was created, and where that is silent,
upon the principles of interpretation, and doctrines of the com-
mon law. But this latter source of power cannot control by im-
plication, an express provision of the charter, or create an author-
ity to do that which is not necessary to give effect to the inten-
tion of the Legislature ; or confer upon a particular member or
officer, the right to do that which the Legislature have made sev-
eral personSjOr a board of directors, competent to perform. [Fleck-
ner v. U. S. Bank, 357-8-9.]
The President and Directors of our State Banks are but the
agents of the State for the purpose of managing the affairs of the
corporation; the charters of incorporation are in some sense let-
340 ALABAMA.
Spyker v. Spence.
ters of attorney under which they act, and are not only enabling,
but are also restraining acts. [Collins v. The Br. B'k at Mobile, 7
Ala. Rep. — ; Salem Bank v. Gloucester Bank, 17 Mass. Rep.
29, 30 ; Lincoln and K. Bank v. Richardson, 1 Greenl. Rep. 81.]
A board of directors, authorized to conduct the affairs of the
company, may empower the President and Cashier to borrow
money, but the President, under an authority thus conferred up-
on the Cashier and himself cannot borrow money. [Ridgway
V. Farmers' Bank of B. Co. 12 Serg. & R. Rep. 256.] It has been
held that the President has not, ex officio, authority to transfer the
property or securities of a Bank ; but must have express author-
ity to that effect, from the corporation at large, or the directors,
as the case may be. [Hallo well & A. Bank v. Hamlin, et al. 14
Mass. Rep. 180; Hartford Bank v. Barry, 17 Id. 97.] Nor
can the President or Cashier charge a bank with any special lia-
bility, for a deposite contrary to its usage, without the previous
authority or subsequent assent of the corporation. [Foster, et al.
V. Essex Bank, 17 Mass. Rep. 505.] In Fleckner v. The United
States Bank, supra, it was said that the Cashier is the executive
officer, through whom, and by whom, the whole monied opera-
tions of the Bank, in paying or receiving debts, or discharging or
transferring securities, are to be conducted. The inducements to
a transfer by the Cashier, need not^pear ; but the Courts will
presume the transfer to have been j^perly made by the Cashier,
in the absence of proof to the contrary. This presumption how-
ever is not conclusive, but may be impeached. [Everett, et al.
V. United States, 6 Porter's Rep. 166.] Again; the Cashier of
a bank has a general authority to suspend the collection of notes
under protest, and to make such arrangements as may facilitate
that object, and to do any thing in relation thereto that an attor-
ney might lawfully do. [Bank of Penn. v. Reed, 1 Watts' Rep.
101.] But an agreement by the President and Cashier of a Bank,
that an indorser shall not be liable on his indorsement, is not bind-
ing on the Bank. [Bank of U. S. v. Dana, 6 Peters' Rep. 51 ; Bank
of Metropolis v. Jones, 8 Id. 16.] We have made these citations
to show that the Cashier is the executive officer of the Bank, and
that his acts, if apparently within the regular course of business,
in respect to the collection of its debts, will be presumed to be
within the scope of his official authority, until the contrary is
shown.
JUNE TERM, 1845. 341
Spyker v. Spence. >
But such an implication cannot be indulged to sustain the di-
rection by the President to the sherifFof Montgomery, in the pre-
sent case ; for although he is, in connection with the directors,
invested with " the management of the concerns of said Branch
Bank," yet, without their co-operation, he can only act in those
cases where the charter confers upon him a sole agency; or
where an authority may be deduced from the " doctrines of the
common law," or " the principles of interpretation." We have
seen that the act of incorporation does not devolve upon the Pre-
sident the duty of expediting or delaying the collection of the
debts due the bank, and such a power is not deducible from any
other source. Conceding therefore, that « John Martin," in his
official capacity, ordered the original fieri facias to be returned
unsatisfied, the lien which it acquired was not impaired; because
the order was unauthorized. The alias fi. fa. was issued in the
vacation which succeeded the term to which it was returnable,
and consequently drew to it the lien acquired by the original, so
as to overreach and avoid any transfer of the goods of the de-
fendants therein, made in the interval.
This view is decisive to show, that the plaintiff had no right to
the goods levied on by the defendant, as against the plaintiff in
the execution, if they were in Montgomery county while the ori-
ginal _^. /a. was in the sheriff's hands. The jury have affirmed
that such was the situation of the goods, or that the plaintiff as-
sented to the acceptance by the directors of the bank, of the pro-
position of Messrs. C. & S.; for upon one of these hypotheses, or
both, their verdict must have been found, as they seem to have
been the only primary questions of fact referred to the jury.
And whether the verdict was influenced by the solution of one
or both these questions, no injury could possibly have resulted
from the ruling of the Circuit Court. It will then be unnecessary
to consider the other questions raised upon the bill of exceptions,
as their decision favorable to the plaintiff, would not have enti-
tled him to a verdict. The judgment is therefore affirmed.
342 ALABAMA.
Crenshaw v. Harrison.
CRENSHAW V. HARRISON.
1. The sheriff is a mere executive officer, and is bound to pursue the mandate
of the process in his hands, unless otherwise instructed by the plaintiff on
record, or his attorney. But he cannot defend a rule for not making the
money, on the ground that the plaintiff had agreed with the defendant to
to set off a debt, when he has received no instructions from the plaintiff or
his attorney to that effect.
Writ of Error to the Circuit Court of Lowndes.
Motion by J. and S. Crenshaw, (in whose favor there was a
judgment for the use of Thomas WilHamson against'Caswell Gar-
rett, A. Gilchrist and N. Cook,) against Harrison as sheriff of
Lowndes, for having failed to make the money on the execution
issued the 7th November, 1844, on said judgment.
At the trial it was admitted by the sheriff that the defendants
in execution had a sufficiency of property in their possession in
Lowndes county, whereof he could have made the money on the
execution.
It was further proved, that on the 17th of November, 1842,
Thomas- Williamson assigned the judgment and execution to one
Moseley, and bound himself to make good the transfer against all
off sets ; to this assignment the sheriff was a subscribing witness,
and had notice thereof.
The sheriff then offered to prove by N. Cook, one of the de-
fendants in execution, that Williamson was indebted to him in a
sum equal to the amount of the execution, and had agreed with
Cook, that his indebtedness should go in discharge of the execu-
tion. This evidence, by Cook, was objected to by the plaintiff,
but it was admitted to the jury.
Upon this state of proof, the Court charged the jury, if this was
an agreement, between Williamson, the plaintiff in execution, and
Cook, one of the defendants therein, before the assignment to
Mosely, that Williamson's indebtedness to Cook should go in
discharge of the judgment against Garrett Gilchrist and Cook, and
the jury should be satisfied, also, of a subsisting indebtedness from
JUNE TERM, 1845. 343
Crenshaw v. Harrison.
Williamson to Cook, equal to the amount of the execution, then
such an agreement would be a sufficient excuse to the sheriff for
not making the money.
The plaintiff requested the Court to charge, that the matter of
excuse offered by the sheriff, could not be inquired of, on this
motion, and that the sheriff was bound to comply with the man-
date of the execution, without reference to the agreement be-
tween Cook and Williamson. This was refused, and the plaintiff
excepted to the several rulings of the Court. They are now as-
signed as error.
Elmore, forthe plaintiff in error, made the following points :
1. Cook was an incompetent witness, inasmuch as- the delay
of the sheriff was at his instance, and enured to his benefit.
2. The sheriff cannot be permitted to constitute himself an
umpire in questions arising between the parties to an execution,
and was bound to make the money independent of the agreement,
unless instructed . to omit it by the plaintiff. [Mason, et al. v.
Watts, 7 Ala. Rep. 703.J
GOLDTHWAITE, J.— Without expressing any opinion,
whether Cook was a competent witness for the sheriff, under the
circumstances disclosed, we think the facts in evidence furnished
no excuse to that officer for his omission to make the money. In
Mason v. Watts, 7 Ala. Rep. 703, we held that the sheriff could
not show a defence of his omission to make the money, that the
plaintiff had released one of the defendants. Generally speak-
ing, the sheriff is a mere executive officer, and is bound to pur-
sue the mandate of the process in his hands, unless otherwise in-
structed by the plaintiff upon the record, or by his attorney; be-
yond this, it is possible he may be permitted to recognize the in-
terest of a stranger, if that interest is admitted by the plaintiff
on the record, or his attorney. But he is not authorized to con-
stitute himself a judge, to determine questions of conflicting in-
terests ; to permit him to do so would lead to the greatest abuses.
In the present case, it is not pretended that the plaintiff, or his at-
torney had given any instructions to the sheriff, which authorized
him to recognize the agreement with Cook, as an executed con-
tract. On the contrary, it may be inferred, that the sheriff was
344 ALABAMA.
Beard v. The Branch Bank at Mobile.
informed of the assignment to Moseley, whose instructions it is
quite probable, he afterwards was bound to follow.
The result of these considerations is, that the instructions given
to the jury are erroneous.
Judgment reversed and remanded.
BEARD V. THE BRANCH BANK AT MOBILE.
]. A dismissal of one of the parties to a motion for judgment, is not a discon-
tinuance of the entire motion, though the party dismissed was notified, and
has appeared, and pleaded.
Error to the County Court of Mobile.
Motion by the Bank against the plaintiff in error. The notice
issued against the plaintiflf in error and two others, and was exe-
cuted on all. A. Godbold, one of the persons notified, appeared
and pleaded non est factum. The Bank moved to dismiss against
Godbold, and for judgment against Beard, which was granted.
The error assigned, is the dismissal of the suit as to Godbold.
Leslie, for plaintiff in error, contended, that the dismissal of
the motion against one of the defendants, who had appeared, and
pleaded, was a discontinuance of the entire suit
Fox, contra.
ORMOND, J. — It has been repeatedly held, that in these sum-
mary proceedings, the notice has not the effect of process, nor is
a suit pending, until a motion for judgment is submitted to the
Court upon it. [See Lyon v. The State Bank, 1 Stew. 442 ;
Bondurant v. Woods & Abbott, 1 Ala. Rep. 543 ; Griffin v. State
Bank, 6 ib. 91L] It follows, that the omission to proceed against
one of the defendants, cannot work a discontinuance of the mo-
JUNE TERM, 1845. 845
O'Neil, Michaux & Thomas v. Teague and Teague.
tion. The dismissal as to Godbold, was unnecessary, but can-
not prejudice. It amounts merely to a declaration, that the
Bank did not desire to proceed against that person.
Let the judgment be affirmed.
O'NEIL, MICHAUX & THOMAS v. TEAGUE AND
TEAGUE.
1. The declaration of a father, made to his son-in-law, when he delivered to
him several slaves, shortly after his marriage, that they were intended for
the use of the donor's daughter, and were not given absolutely as an ad-
vancement for her, are admissible evidence, where a deed was subsequent-
ly executed for the purpose of carrying out the intention.
2. Where a father conveys personal property to third persons, in trust for a
married daughter, and delivers the property accordingly, neither the se-
cond section of the statute of frauds, or the act of 1823, " to prevent fraud-
ulent conveyances," make registration necessary to its operation against
the creditors of the husband.
3. A deed purporting to convey certain slaves from a father to tliird persons
in trust for the " benefit" of a daughter, then recently married, provided
that the daughter, together with her husband, were to retain the posses-
sion of the slaves, with their increase during coverture, and the natural life
of the daughter ; should she die without issue, the slaves were to revert to
the donor, or his lawful heirs. Thus, as the deed declares, conveying the
legal inserest to the trustees in trust, and the possessory interest to the daughter
and " the heirs of her body forever, (if any,) if none, according to the terms
before set forth:" Held, that the deed conferred upon the husband and wife
the possession of the slaves during coverture, and the life of the wife ; that
upon the death of the wife, the possessory interest of the heirs of her body
commences, and the husband being in possession, the slaves were subject
to seizure and sale under an execution against his estate.
4. Semble; that a father who has settled property upon trustees for the bene-
fit of his daughter, is a competent witness for the trustees in a controversy
between them and the creditor of the husband, who is seeking to subject it
to the payment of the debts of the latter.
5. Where a written agreement contains more or less than the parties intend-
44
346 ALABAMA.
O'Neil, Michaux & Thomas v. Teague and Teague.
ed, or is variant from the intent of the parties, by expressing something
substantially different, if the mistake is made out by satisfactory proof,
equity will reform the contract, so as to make it conformable to the intent
of the parties. But such extrinsic proof, it seems, is not admissible in the
absence of fraud, or some legitimate predicate on which to rest its admis-
Writ of error to the Circuit Court of Shelby.
On the 4th of April, 1844, a writ oi fieri facias was issued
from the Circuit Court of Bibb, at the suit of the plaintiffs in error,
commanding that the sum of $3,096 11 damages, besides costs,
be made of the goods, &c. of James O'Hara, and James C. O'-
Hara. This j^. /a. was received by the sheriff of Shelby, on the
2d of May, and on the 16th of the same month levied on two
slaves, viz; Caroline, a slave aged about twelve, and Henry,
about eight years, old, as the property of James C. O'Hara. On
the next day, James D. Teague interposed a claim to these slaves
on behalf of himself and Eldred B. Teague, and gave bond with
surety to try the right, pursuant to the statute. An issue was
made up in due form, and the question of the liability of the
slaves to satisfy the execution, submitted to a jury, who returned
a verdict in favor of the claimants, and judgment was rendered
accordingly.
On the trial, the plaintiffs in execution excepted to the ruling of
the Court. It appears from the bill of exceptions, that the plain-
tiffs adduced their execution, and then proved by the sheriff, that
the slaves in question, were at the time of its levy, and before, in
the possession of James C. O'Hara, one of the defendants in exe-
cution ; that the girl Caroline was worth from $300 to $325, and
the boy, Henry, worth about $300.
The claimants then proved, that in the latter part of August,
1843, John W. Teague sent these slaves to his daughter, who,
a short time previously, had intermarried with James C. O'Hara,
designing them as a gift to her, and for her own use during life,
and to her children, (if any,) on her death, if none, then to revert
to him, (the donor,) or his heirs. The father informed the hus-
band of his purpose, at the time he sent the slaves, and that he
would have a deed made in order to carry it into effect. To the
admission of the proof as to the donor's object, in making the
JUNE TERM, 1845. 847
O'Neil, Michaux & Thomas v. Teague and Teague.
gift, and the terms of the gift, as stated by him, the plaintiff ob-
jected.
The donor testified that a few days after he had sent the slaves
to his daughter, he made the deed of gift ; he told the subscrib-
ing witness, whom he employed to write it, that he wished to
convey the slaves to the trustees, for the sole use of his daughter
for life, and her children after her death, but if she died without
children, then to revert to himself or his heirs. Plaintiffs object-
ed to all this evidence, and especially to the competency of the
donor, on the ground of interest; but their objection was over-
ruled.
The claimants then proposed to read to the jury the deed, which
is a deed of gift from the father to the claimants, as trustees of
the slaves, Caroline and Henry, for the benefit of Eleanor S.,
who it is provided, « with her husband, the said James C. are to
retain the peaceable possession of said negroes, with their in-
crease during coverture, and during the natural life of the said
Eleanor. And should said Eleanor die without issue, said ne-
groes to revert back to me, (the donor,) or my lawful heirs —
hereby conveying the legal interest to the trustees aforesaid, in
trust, and the possessory interest to the said Eleanor and the
heirs of her body forever, (if any,) if none according to the terms
before set forth." This deed bears date the 29th of August, 1843,
and by an indorsement thereon, appears to have been acknow-
ledged by the donor on the day of its date, and filed for registra-
tion on the 4tli of September of the same year.
The Court refused to allow the deed to be read as a recorded
instrument, but permitted it to go in evidence upon proof of its
execution, although more than twelve months had elapsed from
the time it was made. To its admission the plaintiffs objected.
Claimants also proved, that the indebtedness on which the judg-
ment was founded, was contracted in 1839, that the suit was
pending about two years, and before the gift, and that the judg-
ment was rendered in April, 1844.
The plaintiffs' counsel prayed the Court to charge the jury, that
if they believed that James C. O'Hara had the possession of the
slaves at the time of, and previous to the levy, then the deed cou-
pled therewith, vested in him such an interest as was the subject
of levy and sale. This instruction was refused, and the Court
charged the jury, that although the indebtedness of defendants in
UB ALABAMA.
O'Neil, Michaux & Thomas v. Teague and Teague.
execution occurred before the deed was executed, and the deed
was coupled with the possession, it did not vest in J. C. O'Hara
such an interest as could be levied on and sold by the plaintiffs.
Further, they prayed the Court to charge the jury, that if the
slaves, about the time of the execution of the deed, went into the
possession of James C. O'Hara, and so remained more than
twelve months, and the deed was not recorded, it would, as to the
previous creditors of James C. O'Hara, be taken to be fraudu-
lent, if it was not on a consideration deemed valuable in law.
This instruction was also refused, and the jury were informed,
that the deed was not of that class which the law required to be
recorded. The several points made by the bill of exceptions are
regularly reserved and presented for revision.
F. W. BowDON, with whom was B. F. Porter for the plain-
tiffs in error, contended^— 1. The parol evidence of the donor's
intentions, was calculated to mislead the jury, and went to ex-
plain or vary the deed, which was in itself unambiguous. [3 Stew.
Rep. 201 ; 4 S. & P. Rep, 96 ; 1 Porter's Rep. 359 ; 2 Porter's
Rep. 29 ; 5 Porter's Rep. 498.] 2. The deed does not vest in
Mrs. O'Hara the separate estate in the slaves, and the instruc-
tions asked by the plaintiffs upon this point, should have been giv-
en to the jury. [Clancy on Rights, &c. 262-8 ; 2 Porter's Rep.
463 ; 8 Porter's Rep. 73.] It attempts to create an estate tail,
consequently is thus far void, and the absolute estate vests in the
husband, [Clay's Dig. 157, § 37 ; 2 Porter's Rep. 473.] But if
this be not so, then it is insisted that the husband is entitled to the
slaves for the life of the wife, although they may pass to their
children, &c. after her death. [Dunn, et al. v. The Bank of Mo-
bile, et al. 2 Ala. Rep. 152.]
3. The deed was not regularly registered, and was only ad-
mitted upon proof made at the bar, of its execution. It is insisted that
the Court erred in instructing the jury, that the statute did not re-
quire such a deed to be registered.
COLLIER, C. J.— The declarations of the father of Mrs. O'-
Hara, made to his son-in-law when the slaves were delivered to
him, that he intended them for the use of his (donor's) daughter,
&c. were admissible, for the purpose of showing that they were
not given absolutely, as an advancement for her, and did not thus
JUNE TERM, 1845. 849
O'Neil, Michaux & Thomas v. Teague and Teagce.
vest jure mariti, so as to become subject to the husband's debts,
or render inoperative any settlement of them which the father
might make. Certainly it would not be allowable to expound the
deed by a reference to the previous declarations of the donor.
Where an act is consummated by writing, all oral statements
are merged, and cannot be resorted to for the purpose of ascer-
taining the meaning of the party making it; unless, perhaps, where
fraud is alledged, or an application is made to equity to reform
it, that the intention of the parties may be truly expressed.
It is not necessary to consider at length, whether it is essential
to the operation of the deed, as against the creditors of the hus-
band, that it should have been registered within a definite period,
after its execution. The cases of Swift v. Fitzhugh, 9 Porter's
Rep. 39 ; Thomas & Howard v. Davis, 6 Ala. Rep. 113, very
satisfactorily show, that neither the second section of the statute
of frauds, nor the act of 1823, « to prevent fraudulent conveyan-
ces," require such a deed to be recorded. It cannot come within
the first, because possession accompanied the deed and vested
in the donee ; nor within the second, because it is neither a "deed
of trust, or other legal incumbrance," in the sense in which these
terms are there used.
The important inquiry is, does the deed create a separate es-
tate in the donor's daughter, or in herself and children, if any ?
In order to solve this question, it is necessary to make an analysis
of the deed. The consideration of the gift is said to be, natural
love and affection for the donee, and one dollar paid by the trus-
tees, and the conveyance is made to the claimants, in trust for the
benefit of Mrs. O'Hara, and the heirs of her body. It is then pro-
vided, that Mrs. O'Hara and her husband are to retain the peace-
able possession of the slaves, with their increase during cover-
ture, and during the natural life of the former ; and should she
die without issue, then the slaves are to revert to the donor, or his
heirs. Thus, (as the deed declares,) conveying the legal interest
to the trustees, in trust, and the possessory interest to the daugh-
ter and the heirs of her body forever ; if none, then according to
the terms already stated. The first question which naturally
presents itself, is, does a conveyance to trustees, for the benefit of
a married woman, and the heirs of her body, confer upon her an
estate entirely separate and distinct from her husband.
An agreement by a husband, that "his wife shall enjoy and re-
350 ALABAMA.
O'Neil, Michajix &. Thomas v. Teague and Teague.
ceive rents and profits," it has been held, gives her a separate es-
tate. [Clancey on Rights, 263.] So also, a bequest to a mar-
ried woman, " for her own use, and at her own disposal ;" for the
necessary effect of the words " at her own disposal," in connec-
tion with those preceding them, was to give the legacy to the sep-
arate use of the wife. [Id. 263-8-9.] But it has been decided,
that a legacy to a feme covert, to " her own use and benefit,"
was not to her separate use. [Id. 267-8.] And vesting proper-
ty in trustees for a married woman, is not alone sufficient to ex-
clude the marital rights of the husband, and to vest in the wife an
exclusive property. [Id. 267; Lamb v. Wragg and Stewart, 8
Porter's Rep. 73.]
In Jamison's Ex'r v. Brady and wife, 6 Serg. & R. Rep. 466, it
was adjudged that a bequest to a married woman "for her own
use," conveyed an interest for her own separate use. But this
conclusion was attained not alone from the import of the words
used, but from what was supposed to be the intention of the tes-
tator, as gathered from the will, and inferred from extrinsic cir-
cumstances. The indebtedness of the husband to the testator
was remarked upon as indicating the testator's intention to vest
a separate estate in the wife ; otherwise his bounty would be of
no avail, but operate rather as a release of the husband. But
where the father gave personal property to a trustee, in trust for
a married daughter, « for and during the term of her natural life,"
and after her death to such child or children of her's as might
then be living, it was held, that the property was subject to the
husband's debts, at least during the wife's life. [Lamb v. Wragg
and Stewart, supra.']
In Crawford v. Shaver, 2 Iredell's Rep. 238, the testator be-
queathed all his estate, both real and personal, to his daughter C.
and son T„ to have and possess during their lives, and after
their death to descend to their children. If T. died without issue,
the property devised and bequeathed to him, was to vest in the
children of C. It was directed that the slaves given to C. and
T. were to be hired out, in, &c. and the profits equally divided
between them during life ; that the dwelling house of the testator
and tract of land on which he lived, should not be rented out, but
other lands were to be rented out as they might deem fit. At
the date of the will and testatoi''s death, C. was a married wo-
man. It was held, that the wife, under the expressions of the
JUNE TERM, 1845. 351
O'Neil, Michaux & Thomas v. Teague and Teague.
will, did not take an estate to her separate use ; the Court re-
marking, that a construction will not be forced to raise a trust for
that purpose, nor will they gather the intention that a separate
estate is limited to her, from terms that are ambiguous or equiv-
ocal.
It is said, that a trust to the separate use of a married woman
should be very distinctly expressed ; that as such claim is against
common right, the instrument under which it is made, must clear-
ly speak the donor's intention to bar the husband, else it cannot
be allowed. [Clancey on Rights, 262-7 ; Lamb v. Wragg and
Stewart, supra ; Hawkins, et al. v. Coalter, et al. 2 Porter's Rep.
463 ; Dunn v. The Bank of Mobile, 2 Ala. Rep. 152 ; Inge, et
al. V.Forrester, 6 Ala. Rep. 418.] And in Thompson, etal. v.
McKissick, 3 Hump. Rep. 631, the Court held, that the intention
to create a separate estate must appear plainly, by the use of
words that denote an exclusion of the husband, or a declaration
as to the enjoyment of the property, incompatible with his domin-
ion over it. [See Hunt, et al. v. Booth, et al. Freeman's Rep.
215.]
So where S., by deed of gift, conveyed to F. certain slaves in
these words, "in trust for the use and benefit of my daughter,
Ann, and her lawful heirs ;" " in trust for the proper use and ben-
efit of said Ann, and her heirs forever," it was determined that
the daughter took an estate, for her sole and separate use, and
that during her life it was not subject to the debts of the husband.
[1 Smede & M. Ch. Rep. 647,] But in a conveyance to a mar-
ried woman, the words " in her own right," would not, by the
common law, invest her with a separate estate in the property.
[TheG. G. Bank v. Barnes, et al. 2 Smede & Rep. 165.]
From this view of the law, it sufficiently appears, that a gift
to trustees for the benefit of a married woman, and her heirs,
does not impart an interest to her beyond the control and domin-
ion of her husband. There is no peculiar potency in the word
" benefit," which the terms " in trust for," and « for the use of," do
not possess. Every gift, either to a third person directly, or in
trust for him, is for his benefit, whether or not it is so declared in
totidem verbis; and the word, so far as the legal effect of the in-
strument is concerned, is a mere expletive, neither limiting or en-
larging the estate of the beneficiary. If, however, the isolated
expression were of equivocal import, as it respects the donor's
352 ALABAMA.
O'Neil, Michaux & Thomas v. Teague and Teague.
intention, the declaration that the husband and wife should re-
tain the possession of the slaves during coverture, and the life of
the latter, very satisfactorily shows, that it was not intended to
exclude the husband from the enjoyment of the property during
the life of the wife, or so long as he might live with her. The
subsequent provision, that in the event of Mrs. O'Hara's death
without issue, the slaves should revert to the donor or his heirs,
and declaring that the legal interest was conveyed to the trustees,
in trust, and " the possessory interest" to her and her heirs, can-
not impair the rights of the husband beyond the limitation pre-
scribed in the preceding part of the deed. The property was
only to revert, upon a contingency which could not be manifest-
ed until the wife's death. Perhaps it is not necessary to inquire,
whether the right, or the enjoyment thereof, vested in Mrs. O'-
Hara's children, during her life, or whether the term " heirs" is to
receive a technical meaning, and their right under the deed, vest
upon her death. In either event, the husband, under the terms
of the deed, vrould be entitled to the possession of his wife's inter-
est ; and this right, coupled with the actual possession, is the sub-
ject of levy and sale under the execution against the husband
alone. [Dunn and wife, et al. v. The Bank of Mobile, et al. su-
pra.'] The fact that the slaves are conveyed to a trustee, for
the benefit of the wife, if they come to the possession of the hus-
band, and she has no separate estate, they may be sold for his
debts, without a decree in equity. [Inge, et al, v. Forrester, su-
pra; Carlton & Co. v. Banks, 7 Ala. Rep.] We may, however,
remark, that considering the deed in all its parts, we cannot doubt
that it confers upon the husband and wife the right of possession,
during the coverture, and during the life of the wife. Upon the
death of Mrs. O'Hara, the husband's right of possession ceases ;
and after that event, the possessory right of the heirs (as it is call-
ed,) commences. From this view of the deed it results, that as
the husband was in possession of the slaves, they were subject to
seizure and sale for the satisfaction of the execution.
The conclusion attained, renders it unnecessary to consider,
whether the donor was a competent witness for the claimants ;
but we cannot very well conceive what interest he had in the re-
sult of the suit. True, (as it was natural,) the presumption is,
that his feelings were concerned for the success of the trustees,
they being the representatives of his daughter's interest. But
JUNE TERM, 1845. 353
Lowther, et al. v. Chappell.
the mere matter of feeling does not affect the competency, but
the credibility of a witness only.
Where the written agreement contains more or less than the
parties intended, or is variant from the intent of the parties, by
expressing something substantially different, if the mistake is made
out by satisfactory proof, equity will reform the contract, so as to
make it conformable to the precise intent of the parties. But
such proof is not admissible at law, at least under the circum-
stances of the case before us. [Paysant v. Ware & Barringer,
et al. 1 Ala. Rep. 170-l.J Whether such proof can be made as
will show a mistake, and authorize a Court of Chancery so to
modify the settlement as to secure to Mrs. O'Hara a separate es-
tate in the slaves, is a question not now presented, but proper for
the consideration of the parties interested ; and whether her chil-
dren, or those who may be entitled after her death, can protect
their future interest, is alike foreign to our inquiries at present.
The consequence is, that the judgment of the Circuit Court is
erroneous — it is therefore reversed and the cause remanded.
LOWTHER, ET AK v. CHAPPELL.
1. An admission made by the principal maker of a note, coupled with a pro-
mise to pay, will not revive the debt so as to take it out of the bar of the
statute of limitations as against a co-maker, who is his surety.
Writ of Error to the Circuit Court of Macon.
Assumpsit, by Lowther andTaylor, as administrators of Sam-
uel Lowther, against Chappell, as a joint maker of two promisso-
ry notes, dated 17th January, 1829, one payable three, and the
other four years after date. The suit was commenced 26th Au-
gust, 1843. The defendant pleaded non-assumpsit within six
years ; to which the plaintiff replied, that he did promise and un-
dertake, in manner and form as they had declared against him,
within six years next before the commencement of the suit.
45
854 ALABAMA.
Lowther, et al. v. Chappell.
At the trial, the plaintiffs produced and read in evidence to the
jury, the notes described in the declaration, which were signed
by Evans Myrick, John D. Chappell, George A. Chappell, W,
B. Head, and the defendant. They also proved by one Harde-
man, that he, in January, 1838, had received the notes for collec-
tion, and then presented them to Myrick, one of the makers, who
promised to pay what was due, in the fall of that year ; a calcu-
lation was made by Myrick and the witness of the sum due, which
was ascertained and agreed on. The evidence also conduced to
prove, that payments were made by Myrick on these notes, in
the years 1834, 1835, and 1836 ; also, that Myrick was principal
and the others his sureties on the notes, which on their faces pur-
ported to be joint and several.
Upon this state of proof, the Court charged the jury, that if
the debt sued on was barred by the statute of limitations, then
a promise made by Myrick, whether he was principal, or only a
co-prom issor, would not revive the liability of the defendant ; and
although the jury might be satisfied that Myrick had promised
within six years, prior to the commencement of this suit, to pay
the notes, the plaintiffs were not entitled to recover.
Also, that partial payments upon a demand prevent the run-
ning of the statute, but if more than six years had intervened be-
tween the last payment and the commencement of this action,
then a promise by Myrick would not prevent the statute from
running in favor of the defendant.
The plaintiffs then requested the Court to charge the jury, that
if they believed six years had not elapsed between the time of the
last payment, and the promise by Myrick, and that this suit was
brought within six years after that promise, then the plaintiffs
were entitled to recover.
This was refused, and the plaintiff excepted, as well to the
charges given, as to the refusal to charge as asked.
The assignment of errors presents the same questions to this
Court.
J. E. Belser, for the plaintiffs in error, argued —
1. It is well settled that payment of part prevents the running
of the statute. [McGehee v. Greer, 7 Porter, 537.] Here, in
1838, before the statute had run from the last partial payment, a
new promise was made by the principal in the note. This being
JUNE TERM, 1845. 355
Lowther, et al. v. Chappell.
made before the bar of the statute was complete, is supposed to
prevent it from running. [Torbert v. Wilson, 1 S. & P. 200 ;
Garrow v. St. John, 4 Porter, 223 ; Whitcomb v. Whitney, 2
Doug. 652; Parham v. Raynel, 2 Bing. 306; Jackson v. Fair-
banks, 2 H. Black. 340 ; White v. Hall, 3 Pick. 291 ; Dinsmore
V. Dinsmore, 21 Main. 433 ; Ballard v. Lathrop, 4 Conn. 336 ;
Burleigh v. Scott, 8 B. & C. 36 ; Fty v. Baker, 4 Pick. 382 ;
Sigourney v. Drury, 14 Pick. 387 ; Hunt v. Bridgan, 2 lb. 581.]
2. Here is a joint obligation, in which an admission by one
will be proper evidence to charge the others, so long as the con-
tract remains undischarged ; and the current of authority, as be-
tween partners, is, that the admission by one is the admission of
all. [King v. Hardwick, 11 East, 589 ; 1 Taunt. 103 ; 1 M. &
S. 249 ; Peake Ca. 203 ; 4 D. & K. 17 ; 3 Mun. 191 ; 6 John.
269 ; 15 lb. 409 ; 7 Wend. 441 ; 4 Conn. 336.]
3. An admission by one partner, after the dissolution of the
partnership, will take the demand out of the statute. [Smith v.
Ludlow, 6 John. 266; Hefllin v. Banks, 6 Cow. 650 ; Pollard v.
Cheek, 7 Wend. 441 ; Dinsmore v. Dinsmore, 21 Maine, 430.]
4. The case of Bell v. Morrison, 1 Peters, 351, is distinguisha-
ble from this, as that was the mere acknowledgement by a part-
ner, after the statute had run. [Sigourney v. Drury, 14 Pick.
397 ; Bostwick v. Lewis, 1 Day. 33 ; Howard v. Cobb, 3 lb.
309; Baird v. Lathrop, 4 Conn. 339; Clemenson v. Williams, 8
Cranch, 72.]
G. W. GuNN, for defendant in error.
GOLDTHWAITE, J.— The principle upon which the decis-
ion of Whitcomb v. Whiting, 2 Doug. 652, is rested, has often
been doubted in the English Courts, and frequently denied in our
own. Without reference to the many adjudicated cases on this
much vexed question, it will be permitted us to state, the constant
leaning now, of all Courts, is to restore the statute of limitations to
its proper standing, and give it the effect which its authors evi-
dently intended it to have ; i. e. to shut out all litigation upon the
expiration of the limited period, unless the original promise is re-
vived by something equivalent to an express promise to pay, by
the party sought to be charged. To this effect is Bell v. Morri-
son, 1 Peters, 351 ; Clemcntson v. Williams, 8 Cranch, 72 ; Jones
356 ALABAMA.
Lowther, et al. v. Chappell.
V. Moore, 5 Binn, 573; Levy v. Cadit, 17 S. ife R. 175; Ex'n
Bank v. Sullivan, G N. H. 137 ; and many other cases might be
added. When one person becomes bound with others, either up-
on a joint contract, or as a surety, there is no reason why the
admission of those with whom he is joined, that the debt is unpaid,
or their promise to pay it, shall operate to his prejudice, because
it seems entirely evident, that such admission, or promise, may
be made without a knowledge of the circumstances which exist
between the holder of the debt and the other parties, who are
sought to be thus charged. In many cases, where the contest is
with respect to the validity of the contract, there is great force in
the argument, that as all have a common interest under the con-
tract, the admissions of one shall operate against all ; but even
there it enterely fails, if the contract, in point of fact, was a seve-
ral one, and other parties are subsequently joined as sureties ; it
would be most unreasonable to allow the admission of a subse-
quent surety, to validate a defective contract, so as to bind his
principal; and on the other hand, it would be equally so by the
admission of the principal to extend the term for which the sure-
ty has consented to be bound. Conceding then, that the payments
made by the principal debtor, in this cause, in 1836, and his ad-
mission of the debt as existing, in 1838, coupled with his promise
to pay, had the effect to prevent the statute from running, as to
him, yet it in nowise prevented it from doing so as to the sureties.
The legal effect of their engagement is, to continue bound for the
principal for six years, after the period limited for payment, and
no act or admission, which is not their own, can impair this ef-
fect of the original contract.
It follows, that the Jaw was correctly ruled by the Circuit
Court.
Judgment affirmed.
JUNE TERM, 1845. 357
Hobson V. Kissam & Co. &c. &c.
HOBSON V. KISSAM & CO.
SAME V. CLUTE & MEAD.
SAME V. BAKER, JOHNSON & Co.
MURPHY V. JAMES PAUL.
NIXON V. J. R. W. & J. M. C. FOSTER.
1. A certificate by the proper officer, indorsed upon a deed of trust, that the
maker appeared before him, within the time prescribad by law, " and ac-
knowledged that he signed, sealed and delivered, the foregoing deed of
trust, to the aforesaid W. M. M." (the trustee,) is a sufficient acknowledg-
ment of its execution, to authorize its registration.
2. After a levy on property, and bond given to try the right, a junior execu-
tion cannot be levied on the same property, pending the trial. An execu-
tion issued on an elder judgment, but which has lost its lien, by the lapse of
a term, wiU be postponed to one issued on a younger judgment, during
such interval.
3. It is improper to send the original papers to this Coiui, and if sent, will not
be looked to, to settle any disputed question.
4. Upon a trial of the right of properry, the fact that an execution from the
Federal Court had five years before been levied on the same property, and
bond given to try the right, raises no question, until it is shown that the
trial is still pending, although the levy of such execution was first made.
Error to the Circuit Court of Tuscaloosa.
Trial of the right of property claimed by the plaintiff in error,
the defendant? in error being execution creditors of Baker
Hobson.
From a bill of exceptions, it appears, that the claimant derived
his title by virtue of a sale made under a deed of trust, made by
the defendant in execution, on the 25th March, 1839 — the exe-
cution of which he proved by one of the subscribing witnesses —
the plaintiff then read the certificate of the probate of the deed, as
follows :
The State of Alabama, ) Personally appeared before me, Cy-
Tuscaloosa county. ) rus A. Miller, a justice of the peace for
said county, the within named Baker Hobson, who acknowledged
358 ALABAMA.
Hobson V. Kissam & Co., &c. &c.
that he signed, sealed and delivered, the foregoing deed of trust,
to the aforesaid Williani M. Murphy. Given under my hand and
seal, this 23d of April, 1839. C. A. Miller.
Filed for registration the 23d of April, 1639, and on the same
day and year recorded, in book P. tfec.
Test : Moses McGuire, Clerk.
And moved the Court to exclude the deed from the jury, for want
of a sufficient certificate of probate — it not appearing thereby^
that the deed was executed on the day it bore date — upon which
motion the Court rejected the deed, there being no proof of ex-
press notice to the plaintiff, of the execution of the deed.
The claimant then introduced certified copies of six alias execu-
tions, which issued from the Circuit Court of the United States
at Mobile, in favor of Suydam & Nixon v. Baker Hobson, and
which were, on the 22d April, 1840, levied on the same slaves as
the present execution, and proved, that the said property was
claimed by the trustee, and bond given to try the right, and in-
sisted that the slaves were not subject to levy under this execu-
tion, because of the previous levies from the Circuit Court of the
United States, and bonds given to try the right of property. But
the Court held, that as it was not shown affirmatively, that the
suits for the trial of the right of property were still pending in the
Federal Court, it interposed no obstacle to the levy of the
plaintiff.
The claimant then introduced an execution from the County
Court of Tuscaloosa, in favor of Baker, Johnson & Qo. against
Baker Hobson and others, which came to the sheriff's hands on
the 24th August, 1839, and was on the 25th January, 1840, levi-
ed on the same slaves now in controversy, and that the claimant
gave bond for the trial of the right, which was still pending in the
Circuit Court of Tuscaloosa, and insisted, that in consequence of
this previous levy, they were not subject to the levy of the plain-
tiff's execution — but the Court held, that as both executions issu-
ed from the same Court, and as the trials of the right of property
were depending in the same jurisdiction, the said levy could be
made.
The claimant then proved, that the first execution in this case,
issued on the 8th March, 1839, and was returnable to the July
term of the County Court — that no other execution issued until
JUNE TERM, 1845. 359
Hobson V, Kissam & Co., &c. &c.
the 18th November, 1840, under which the levy in this case was
made, and insisted that by the lapse of an entire term, the first
execution had lost its lien, and that the levy on the last execution
must be postponed to those previously mentioned ; but the Court
overruled the objection, and charged, the jury, that the property
levied on in this case, was liable to the satisfaction of this execu-
tion. To all which the claimant excepted, and which he now
assigns as error.
Murphy and Jones, for the plaintiff in error:
The question upon the probate of the deed, has in effect been
decided in this Court, in Bradford v. Dawson &, Campbell, 2 Ala.
Rep. 203. The different acts on the subject, when collated, show,
that the probate is not of the substance of the requisition, neces-
sary to put a deed upon record, though to make it evidence, un-
der the statute, it may be, that the form must be strictly pur-
sued.
The case of Bradford v. Dawson has been repeatedly recog-
nized, and approved by this Court, in 2 Ala. Rep. 314 ; 3 Ala. R.
629 ; 4 lb. 469, and 5 lb. 297.
The levy of the execution of the Federal Court, placed the
property in the custody of the law, and it was not necessary to
show, that it was still pending. [10 Peters, 400 ; 6 Ala. Rep.
45.] The issue, in such a case as this, is to the time of the levy.
[5 Ala. Rep. 770 ; 6 Id. 27-] And having proved that there was
a levy, and a bond for trial, it devolves on the other side to show
it was at an end.
As to the execution of Baker, Johnson & Co., it was evident-
ly entitled to priority over the execution of the plaintiff.
Thornton, Peck and Crabb, contra :
The statutes of registration contemplated, two purposes, the
giving of notice, and the perpetuation of testimony. The
first is common to all the acts — the last is confined to ab-
solute deeds of real estate. The law merely requires deeds
of trust to be proved as deeds for real estate, and does not
make the probate evidence of the execution of the deed. The
case of Fipps v. McGehee, 5 Porter, 403, is not shaken by
the cases cited from 2 Ala. Rep. 203. That case merely deter-
mines, that where the deed is executed on the day of the pro-
360 ALABAMA.
Hobson V. Kissam & Co., &c. &c.
bate, the body of the deed may be looked to, in aid of the pro-
bate.
The statute has prescribed the manner in which the deed shall
be proved to admit it to record, and gives to it when thus proved
and recorded, the effect of actual notice. A registration upon
an irregular probate, cannot have the effect of constructive
notice, as has been repeatedly held. [4 Kent's Com. 174; 2
Binny, 45 ; 3 Cranch, 155.
As to the second point they contended, that to give effect to
the previous levy, it must be shown that the trial of the right of
property was still pending.
ORMOND, J The principal question in the cause, whether
the probate of the deed of trust offered in evidence by the claim-
ant, was sufficient to authorize its registration, depends upon the
proper construction of the statute. [Clay's Dig. 152, § 7.] "Any
deed of conveyance of real estate may be admitted to record if
acknowledged by the makers thereof, or be proved by any of the
subscribing witnesses thereto, and the following shall be the
form of the certificate of acknowledgment, or probate of all deeds:
Personally appeared before me, &c., the above named A. B.
who acknowledged that he signed, sealed, and delivered the fore-
going deed, on the day and year therein mentioned, to the afore-
said C. D." The succeeding part of the section varies the form
when the probate is made by the witnesses to the deed, but in all
other respects is the same.
The act of 1828 provided for the probate, and registration of
deeds of trust of personal, and real property, requiring the first
to be recorded in the County Court, where the maker resided,
within thirty days after the execution of the deed, and the last
within sixty days, in the County Court of the County where the
property is situated, « or to be void against creditors, and subse- .
quent purchasers without notice." A succeeding section declares
that " such deeds and conveyances of personal estate, shall be
proved or acknowledged as deeds and conveyances of real es-
tate." [Clay's Dig. 256, § 7.]
The design of this act is, to give notice of the deed ; for this
purpose it is to be recorded, and to authorize its registration, it
must be acknowledged by the maker thereof, or be proved by any
of the subscribing witnesses thereto, before one of the officers
JUNE TERM, 1845. 361
Hobson V. Kissam & Co., &c. &c.
named in the act. These are the conditions, and the only condi-
tions, prescribed by the act, to the admission of the deed to re-
cord, and when they are complied with, the party has the right
to have his deed registered.
The act of 1828 does not provide for the mode, or manner of
the probate, but by reference to the previous registry acts of ab-
solute deeds of real estate, and in Bradford v. Dawson & Camp-
bell, 2 Ala. Rep. 203, and again in Ravisies v. Alston, 5 Ala. R.
277, we considered, that the reference to the former act was
merely for the probate of the deed, and that it was not an adoption
of that portion of the act, which made the certificate of the pro-
bate evidence. Thus in the first cited case, it is said, " It is ob-
vious that proved, or acknowledged, must refer to the recording
of the instrument^ and nothing further. The effect of the pro-
bate is to admit the deed upon the record, and there it operates
as notice to all the world."
The design of the act of 1828 was to prevent frauds ; for that
purpose it declared the deed void unless recorded within thirty
or sixty days. The whole object of the registry was notice; it
subserved nothing else. It would.be therefore most unreasona-
ble to suppose, that the Legislature made any reference to the
" form" of the certificate provided by the act of 1812, when that
foim, if strictly pursued, could accomplish no object whatever.
The act of 1812, on the contrary, was not only intended for no-
tice of the transfer of the title, but also to provide evidence of the
due execution of the deed, by which the transfer was made. We
can see no reason whatever, for departing from the plain, and in-
telligible language of the act of 1828, that deeds of trust shall " be
proved, or acknowledged, as deeds of real estate ;" which is, hy
the acknowledgment of the maker, or hy proof of any of the wit-
nesses thereto.
The act of 1812, to which reference is made, proceeds further
to provide the « form" of the certificate, which the officer appoint-
ed to take the probate shall make ; the apparent object of this en-
actment was to produce uniformity in these certificates, which
by the terms of the act were to be evidence of the facts recited
in them, and by a succeeding section it is declared that they shall
be good, if they contained the " substance," whether in the form
or not, of that given in the act.
We need not stop to inquire what would be "form," and what
46
362 ALABAMA.
Hobson V. Kissam & Co. &c. &c.
*•■ substance," in a certificate of probate of an absolute deed of re*
al estate ; it would be strange however, if any thing could be con-
sidered matter of substance, which the statute did not require,
and that is peremptory, that the deed shall be recorded, if " ac-
knowledged, or proved, by any of the subscribing witnesses."
Certainly, however, that cannot be considered matter of substance
in the certificate of probate, which, if inserted, could accomplish
no purpose whatsoever. If any thing can be entitled to the ap-
pellation of form, it must be that which, if done, attains no ob-
ject. Such is the case here ; if the certificate had been drawn
out, in the form given in the statute of 1812, it would have ac-
complished nothing, beyond putting the deed on record, and to
that, by the express terms of the statute, the cestui que trust was
entitled, upon the acknowledgment of the execution of the deed,
by the maker. If he desires to claim any benefit under the deed,
against a creditor of the grantor, he must prove its due execu-
tion, as well as the adequacy of the consideration.
If it were conceded, that the form of the certificate ascertains
the extent, and character of the oath, or acknowledgment which
is required to be made, it could not be tolerated, that a mistake
in th^officer in making his certificate, when the proper proof or
acknowledgment had been made, should vitiate the registration.
Yet this would seem legitimately to follow, from the doctrine con-
tended for. When the party has complied with the law, and has
done all in his power, it cannot be vitiated by the ministerial act
of the officer of the law.
This question has been incidentally before this Court, in seve-
ral cases, in many of which the distinction is drawn, between our
registry acts, considered as such, iperely, and where the certifi-
cate is made evidence. See the cases cited in the argument of
the counsel for the plaintiffs in error.
The case relied on of Heister v. Fortner, 2 Binney, 44, mere-
ly establishes the general principle, that an irregular registration
of a deed, is not notice. In that case, the proof of the execution
of the deed, was made before an officer not authorized by law to
take the proof, and it was therefore in effect the registratiou of a
deed without proof. So in Hodgson v. Butts, 3 Cranch, 140,
the statute required proof of the execution by three witnesses, to
place a mortgage on the record, and the instrument was record-
ed on the proof of two only. There was therefore in this, as in
JUNE TERM, 1845. 363
Holjson V. Kissam & Co., &c. &c.
the last case, a want of power in the recording officer to make the
registry of the deed.
There are, however, highly respectable authorities the other
way, and going the entire length, that when the object is notice
merely, it is sufficient if the instrument is recorded. In Trudeau
V. Smith's Syndicks, 12 Martin, 543, 2 Con. Rep. Lou. 372, it
was held, that although the code required that mortgages should
not be recorded after the expiration of the legal term, without an
order of the Court given for that purpose, yet that a mortgage
recorded after the expiration of the term, without such order,
would be effective as notice to third persons.
Our decision is based upon the fact, that the statute does not
require any thing more to the registry of a deed, of this descrip-
tion, than that it be acknowledged by the maker, or its execution
proved by any of the witnesses thereto, within thirty days after
its execution, if of personal property, and within sixty if it convey
real property, and be recorded, it is then notice to all the world.
This regulation is not, as is supposed, for the protection of those
claiming under the deed ; on the contrary, as it respects deeds of
trust of personal property, it is a burden imposed on them, for
the benefit of creditors, and purchasers, as the deed, if valid, would
be effectual at common law, without notice to them, either actu-
al or constructive.
The deed is to be registered to give notice of its existence, and
is to be acknowledged, or proved to have been executed, before
it is recorded, merely to prevent a spurious instrument from be-
ing placed upon the records of the county. This is all that the
statute requires, and the entire object of the registry being notice,
it would be most unreasonable to infer, in the absence of any
statute requiring it, that the certificate of the officer taking the
probate, or acknowledgment, should state any thing which the
statute had not made a prerequisite to such registration. Wheth-
er the deed was executed on the day of its date, and all other
matters necessary to its validity, must be established by those
claiming under the deed, if their title is questioned. The state-
ment of these facts would be therefore wholly useless, to say the
least, in the certificate of the magistrate.
As it respects the trial of right of property, alledged to be
pending in the Federal Court, and relied on as a bar to the levy
of the plaintiffs' execution, we do not propose to consider any
364 ALABAMA.
Hobson V. Kissam & Co., &c. &c.
Other question, than that presented on the record ; and in that
we think there is no error. No presumption arises, that a trial
of right of property instituted in 1840, was pending five years af-
terwards, and until that fact was shown, no question could arise
as to priority of Zien, between the execution from the Federal Court
and that of the plaintiffs in execution. If the levy on the Fede-
ral Court execution has been abandoned, or is determined, it is as
if it never was haade, so far at least as it regards the claimant.
It appears that the first execution of the plaintiff, issued on the
8th March, 1839, and was returned to the next return term, in
July succeeding. No other execution issued until November,
1840, upon which the levy in this case was made. On the 24th
August, 1839 a ^en'yaaas issued at the suit of Baker, Johnson
& Co. against the same defendant, which, on the 25th January,
1840, was levied on some of the same slaves subsequently levied
on by the plaintiffs execution. It is well settled, that an alias ex-
ecution issued after the lapse of an entire term, after the original,
coming in conflict with an execution of a junior judgment credi-
tor, which had come to the sheriff's hands during such interval,
will be postponed to the latter. Such was the construction of
the act of 1828, relating to the satisfaction of executions, in Wood
v. Garey, 5 Ala. Rep. 50. In a contest therefore, between the
execution of the plaintiff, and that of Baker, Johnson & Co. the
lien of the latter will be preferred.
In Langdon & Co. v. Brumby, 7 Ala. Rep. 53, it was held,
that where property was levied on, and bond given to try the
right, the same property was not subject to levy by a junior ex-
ecution creditor, until the claim was determined. The same
principle was again affirmed in Kemp v. Buckey and Porter, lb.
138. In this case it appears that the execution of the plaintiffs, by
their omission to cause it to be re-issued, during an entire term,
had lost its priority over that of Baker, Johnson & Co., which at-
tached whilst the execution of the plaintiff was dormant in the
office ; it had therefore the superior lien, and bond being given
to try the right of property, the same property was not subject
to be levied on, by the plaintiffs, whose execution by their laches,
had become junior to that of Baker, Johnson & Co. This was
the precise point in Kemp v. Buckey and Porter, as the converse
had been held in Langdon & Co. v. Brumby, previously cited.
It does not vary the case, that both trials are depending in the
JUnIi term, 1845. 8«5
Hobson V. Kissam & Co., &c. &c.
same Court — the principle of the decision being, that the claim-
ant has given bond for the production of the property to the senior
judgment creditor, if he succeeds in condemning it, and it will be
no answer to his demand, that it has been taken from his custody
by proceedings at the suit of a. junior creditor. It follows, that
the Court erred in its charge upon this point of the cause.
It appears that there was a contest in the Court below, as to
the true date of the deed of trust, whether it bore date on the 23d
or 25th March. The bill of exceptions contains, what is called a
fac simile copy of the deed, from which it would seem to be
doubtful which was the true date. The original was produced
on the argument of the case for the inspection of thisCourt, which
the Court declined to notice. We have on several occasions ad-
verted to the impropriety of sending up the original papers, in-
stead of the record. This is objectionable, not only because it
puts in hazard the loss of the originals, by which the parties might
be prejudiced, but because this Court has only appellate jurisdic-
tion. All controverted questions of fact, must be settled by the
primary tribunal. In this case, indeed, there is no controversy,
so far as we can judge from the record, as it is stated that the
deed was dated on the 25th March, 1839, We may conjecture
that there was some difference of opinion as to the true date of
the deed, but whether its date was determined by the Court, or
left to the decision of the jury, is not stated. It is perfectly clear
however, that no question is raised upon the record in reference
to the date of the deed, and if there was, it could not be determin-
ed by this Court, by an inspection of the original.
These principles are decisive of all the cases, which must be
reversed, and remanded, except Nixon v. J. & J. Foster, which is
affirmed.
866 ALABAmI.
Chandler v. Hudson, et al.
CHANDLER v. HUDSON, USE, &c.
1. Interrogatories propounded to the plaintiff under tlie statute, are not in the
nature o^Sl. fishing hill, where, in connection with the affidavit made previ-
ous to their being filed, they state tlie existence of a pertinent fact, which
the defendant behevea to be within the plaintiff's knowledge, and calls on
him to answer in respect thereto.
2. Where interrogatories to the plaintiff are allowed, and an order made that
he answer them within a definite time afler the service of a copy, the Court
impliedly affirms their pertinency, and the defendant cannot be compelled
to receive answers irregularly verified or insufficiently authenticated.
3. Where the plaintiff, to whom interrogatories are propounded, is a non-resi-
dent, he may pray a commission to some one designated to take his an-
swers, as in other cases where depositions or answers in Chancery are to be
taken; but the certificate of an individual, describing himself as a justice of
the peace of another State, and affirming that the plaintiff there verified his
answers by oath administered by that individual, is not a sufficient verifica-
tion. The Court cannot judicially know his official character, nor is it
competent to prove it by the testimony of a witness who heard it said, at
the place where the answers were made, that the person certifiying them
was a justice of the peace.
4. Sejttfe/e; where the declaration states that Frederick W. C. made his prom-'
issory note, &c., and the note offered in evidence was made by F. W. C, it
is sufficiently described to make it admissible evidence.
Writ of Error to the Circuit Court of Randolph.
This was an action of assumpsit at the suit of the defendant
in error against the plaintiff. The cause was tried on issues to
the pleas of non-assumpsit, payment, set off, and accord and satis-
faction. On the trial, the defendant excepted to the ruling of the
Court, and the bill of exceptions presents the following points :
1. The declaration designates the plaintiff's name as Frederick
W. Chandler, and alledges, that he « made his certain promisso-
ry note in writing, bearing date on the day and year aforesaid,"
&c., while the note is subscribed with the name of "F. W. Chand-
ler." The Court held, that the note was not misdescribed, and
permitted the same to go in evidence to the jury. 2. An order
JUNE TERM, 1845. 367
Chandler v. Hudson, et al.
Was made by the Court, at a term previous to the trial of this
cause, requiring the beneficial plaintiff to answer certain inter-
rogatories exhibited by the defendant pursuant to the statute in
such cases. These interrogatories were answered, and the an-
swers verified before an individual who describes himself as a jus-
tice of the peace of Coweta county, in the Stata of Georgia; but
there was no other proof of his official character, save the state-
ment of a witness, that about three weeks previous to the trial,
he was in Georgia, and was there informed, that the person who
attested the verification was a justice of the peace of that State.
The defendant declined using the answers as proof, and moved
the Court to require the plaintiff to answer in proper form, un-
der oath or affirmation, and continue the cause, but the Court re-
fused to require the answers to be otherwise verified, or to order
a continuance. Thereupon the defendant moved to dismiss the
suit, because the truth of the plaintiff's answers was not suffi-
ciently vouched ; this motion was in like manner denied, and the
defendant ruled into trial. A verdict was ^-eturned for the plain-
tiff, for the amount of the note and interest, and judgment render-
ed accordingly.
F. W. BowDON, for the plaintiff in error. The proof of the of-
ficial character of the person who certified the plaintiff's answers
in Georgia, was clearly inadmissible. The evidence showing
that he was a justice of the per.ce would be the certificate of the
proper officer, authenticated by the seal of State. This not be-
ing furnished, the suit should have been continued or dismissed.
The note offered in evidence to sustain the declaration was
misdescribed and should have been rejected. [Greenl. on Ev.
78, u. 3 ; Cro. Jac. Rep. 558 ; Id. 640 ; Cro. Pliz. Rep. 879 ; 3
Taunt. Rep. 504.]
S. F. Rice, for the defendant The case of Mallory v. Mat-
lock, at this term, precludes all inquiry on writ of error as to in-
terrogatories exhibited to a party under the statute. If it does
not, it is insisted that the affidavit and interrogatories are in the
nature of a fishing bill ; being evasive, without stating that there
is a set off.
COLLIER, C. J Neither the affidavit or interrogatories
368 ALABAMA.
Chandler v. Hudson, et al
are drawn with precision, or accuracy, in the use of language.
The former is unnecessarily verbose, yet it affirms that the de-
fendant is entitled to a set off against the note declared on, for
$395 26, that he is informed, and believes, that Beadles, for
whose use the suit is brought, has no interest therein, but he is
made a beneficial plaintiff' to embarrass the defence. The inter-
rogatories then call on him to answer, whether the nominal plain-
tiff" was not the proprietor of the note, when the suit was com-
menced ; or if he is the owner of it, when and how he acquired
it, and what he gave for it ; whether the suit has not been brought
for his use, for the purpose of cutting off" a defence against the
nominal plaintiff". Did he not know, before he became interested
in the note, that the defendant had sets off" against it for a large
amount, and that he was entitled to a set off" of 8395 26.
This brief recital of the affidavit and interrogatories will suf-
ficiently show, that they are not so much wanting in point and
directness as to subject them to the imputation of being in the na-
ture oi a fishing bill; but that they alledge the existence of a per-
tinent fact, which the defendant believes to be within the plain-
tiff's knowledge, and calls upon him to answer in respect to it.
Mallory v. Matlock, is unlike the present case. There it was
determined that the refusal to allow interrogatories to be exhibit-
ed to a plaintiff" at law under the statute, was a matter which
did not enter into the judgment of the Court, and could not be re-
vised on error ; that if the defendant was prejudiced by their dis-
allowance, he had his remedy by mandamus, or some other ap-
propriate proceeding. Here the interrogatories were allowed,
and Beadles required to answer them, within sixty days after be-
ing served with a copy. The Court expressly affirmed their
pertinency, and could not force the defendant to receive answers
irregularly verified, or insufficiently authenticated. The statute
declares, that if the party to whom the interrogatories are pro-
pounded, shall fail to answer the same, or answer evasively, the
Court may attach him, or compel him to answer in open Court,
or it may continue the cause, and require more direct and expli-
cit answers, or if the^arty to whom such interrogatories shall
be propounded, be defendant in the action, it may set aside his plea
or pleas, and give judgment against him, as by default ; or if the
plaintiff", may order his suit to be dismissed with costs, as shall in
the discretion of the Court be deemed most just and proper.
JUNE TERM, 1845. 369
Chandler v* Hudson, et al.
[Clay's Dig. 341, § 160.] In the case cited, the Court refused to
act ; here it acted so as to render it unnecessary for the defend-
ant to file a bill for a discovery, and the error insisted on is, that
itshould have followed the act with the consequences which the
statute visits upon a failure to answer according to its directions ;
and this argument, we have seen, is well founded under the cir-
cumstances.
The CircuitCourtcouldnot regard thecertificate and attestation
of the individual who affirmed that the answers were made and ve-
rified before him, as a justice of the peace of Georgia. It could
know nothing of his official character, unless it was vouched by
the proper evidence. The testimony of a third oerson, that he
had some time previously when in Georgia, heara it said that the
person certifying the answers, was a justice of the peace, could
not with propriety be received as evidence of the fact.
It would have been competent for the plaintiff, or his counsel,
to have prayed a commission to some one designated therein to
take his answers, as in other cases where depositions, or answers
in Chancery are to be taken ; if that course had been adopted,
the authority conferred by the commission would have been suffi-
cient, and no inquiry would have been permitted, whether by the
laws of Georgia, the commissioner was competent to administer
an oath.
The declaration sets out the defendant's name at length, while
the note adduced as evidence is subscribed with the initials only.
We are inclined to think the note was sufficiently described to
make it admissible, and that it should not have been rejected for
the supposed variance. But upon the point previously consid-
ered, the judgment is reversed and the cause remanded.
47
370 ALABAJMA.
Smoot V. Easton and Morehouse.
SMOOT & EASTON v. MOREHOUSE.
1, When a bankrupt, previously to his bankruptcy, transferred a due bill for
a valid consideration, his indorsement made after his bankruptcy, will in-
vest the indorsee with a legal right of action.
2. The preference given by a bankrupt, by payment or assignment of effects,
to a creditor, to be void under the bankrupt act, must be a voluntary pre-
ference, not induced by an agreement between the parties, for the credi-
tor's security.
Writ of Error to the County Court of Mobile.
Suit was commenced before a justice of the peace, by Moore-
house against Smoot, on a due bill, made by the latter to one In-
graham. Smoot removed the case to the County Court by ap-
peal, and Easton is his surety in the appeal bond.
At the trial, the due bill was produced with Ingraham's name
indorsed in blank. The defendant then gave evidence conducing
to prove, that Ingraham had passed the note to the plaintiff, in
December, 1841, without indorsement, in payment of a debt of
several years standing, but that Ingraham had promised to pay
the due bill to plaintiff some time before — possibly in 1840. That
at the time of the promise so made, and when the due bill was
actually delivered, Ingraham was unable to pay his debts ; that
shortly after the delivery, he filed his petition in the United States
District Court, praying a discharge from his debts, and was sub-
sequently discharged, [as a bankrupt.] After his discharge, he
was called on by the plaintiff to indorse his name on the paper,
which he did. The defendant asked the Court to charge the ju
ry, that if, from the evidence, they believed the note was indors-
ed by Ingraham after his discharge under a decree of bankrupt-
cy, they must find for the defendant. Also, that if, from the evi-
dence, they believed the due bill was paid or transferred, in con-
templation of Bankruptcy, such payment was utterly void, and
they must find for the defendant. The charges were refused,
and the jury was instructed that a delivery of the note for a val-
uable consideration, would pass the interest in it, and, after such
JUNE TERM, 1845. 371
Smoos V. Easton and Morehouse.
delivery, Ingraham was only a trustee for Morehouse, and was
bound, whenever called on, to indorse the note. Also, that
there was no sufficient defence to the action, on the facts above
stated.
The defendant excepted to the refusal of the Court to charge
as requested, and to the charges given, which are now assigned as
error.
Stewart, for the plaintiff in error, insisted —
1. That by the bankruptcy, the legal title in the due bill pass-
ed to Ingraham's assignee, and the indorsement afterwards gave
no title to Morehouse. [Owen on Bank. Appex. 51.]
2. The assignee became a trustee of the legal title for More-
house's benefit, if the assignment of the note Was valid. And
the proper Court could compel him to indorse it specially. [lb.
236-7.]
3. All transfers -made in contemplation of bankruptcy, by the
act, are declared to be void. [lb. Appx. 50.]
GOLDTHWAITE, J The question raised here, as to the
authority of the bankrupt, under the circumstances of this case
to indorse the due bill, though entirely new in our Courts, seems
to have often arisen in those of England. Thus in Smith v, Pick-
ering, Peake's Cases, 50, the drawers of a bill who were also its
payers, delivered it to the plaintiff' for a valuable consideration,
but forgot to indorse it. They afterwards became bankrupt and
then indorsed it. In a suit against the acceptor, it was held that
the indorsement was valid. So in an anonymous case reported
(1 Camp, 422, in notes,) the bill was delivered to the indorsee,
more than two months before the commission, with intent to trans-
fer the property in it, but the indorsement was not in effect writ-
ten within the two months. Lord Ellenborough held, that the
writing of the indorsement had reference to the delivery of the
bill. In Watkins v. Maule, 2 J. & W. 243, it is said that the ad-
ministrator of a bankrupt may indorse a bill under such circum-
stances, for the transfer for consideration is the substance, and
the indorsement a mere form, which creates an equitable right,
entitling the holder to call for that form. The case of Pease v.
Hirst, 10 B. & C. 122, though not stated at length, in the Ameri-
can edition, seems to sustain the right of the payee under such
872 ALABAMA.
Smoot V. Easton and Morehouse.
circumstances to be discharged from a suit by the assignees. In
addition to the cases cited, Mr. Chitty has collected many more
bearing on the same question, and all seem to concur that the
transferee for a valuable consideration, is entitled to have the pa-
per indorsed, either by the bankrupt or the assignee, and that a
suit can be maintained, though the indorsement is put on the bill
or note after the bankruptcy. [Chitty on Bills, 227, 723-4.] We
think the same rule must obtain under our bankrupt act, which
vests in the assignee the only beneficial interest of the debtor.
In relation to the second question presented by the bill of ex-
ceptions, it is said the delivery of the due bill was made in De-
cember, 1841, in accordance with the provision to that effect pre-
viously made,, and possibly in 1840 ; that soon afterwards the
debtor applied to be discharged as a bankrupt. The charge ask-
ed for is, that if the delivery was made in contemplation of bank-
ruptcy, the payment was utterly void. The preference which is
spoken of in the second section of the bankrupt act, is also inhibi-
ted by the English bankrupt acts, and under them, the uniform
construction is, that the preference, to be void, must be a volun-
tary act of the debtor, and not arise in consequence of any pre-
vious agreement with his creditor for security. [Chitty on Bills,
235.J Under the circumstances in evidence, there was nothing
before the jury from which a fraudulent preference could be pre-
sumed, and therefore the charge requested was properly refused
for the reason that the question was not involved by the proof.
This point is not much pressed in the brief submitted, but we have
thought it best to give it this brief consideration, as it is not aban-
doned.
We can perceive no error in the action of the Court below,
and its judgment is therefore affirmed.
JUNE TERM, 1845. 373
Bamett v. Gaines and Townsend.
BARNETT v. GAINES AND TOWNSEND.
1. A purchaser of land, who with knowledge of an existing incumbrance pro-
ceeds to execute the contract in part, as by taking possession, he will be
required to execute it in full, and a fortiori will not be allowed to re-
scind it
2. A right of dower is an incumbrance.
Appeal from the Chancery Court at Talladega, upon the dis-
solution of an injunction.
The bill was filed by the plaintiff in error, and alledges that he
purchased from the defendant, Gaines, a tract of land, described
in the bill, and that by agreement in writing, Gaines bound him-
self to make to him, "good and legal title thereto, in fee simple,
when the purchase money was paid." That he has paid all the
purchase money, and has been let into the possession of the land.
That he has tendered a deed and demanded title, but that Gaines
refuses, and is unable to make a good title, as his wife refuses to
relinquish her dower. That Gaines is wholly insolvent, and that
the present value of the land, with the rents and profits, aside
from the dower interest, are not equal in value, to the purchase
money paid and interest.
The bill further charges, that Gaines has obtained a judgment
against him for $210, to which he prays an injunction, that the
land be sold and applied to the repayment of the purchase money,
and that the judgment be held as a fund to meet any deficiency
arising from the sale.
Gaines, in his answer, insists, that complainant knew when he
purchased, that his wife would not relinquish her dower, and that
he had transferred the judgment to one John H. Townsend, in
consideration of a debt due him.
The bill was amended, so as to make Townsend a party, who
by his answer, insists, that he is abonajlde purchaser of the judg-
ment without notice of complainant's equity, if any exists.
The Chancellor dissolved the injunction, from which com-
874 ALABAMA.
Bamett v. Gaines and Townsend.
plainant appealed to this Court — and which he now assigns as
error.
Rice, for the plaintiff in error.
L. E. Parsons, contra.
ORMOND, J. — There is not a particle of equity in this bill.
It is certainly true, that a dower interest in lands, is an incum-
brance, which in a proper case, would afford a sufficient excuse
to the vendee, for refusing to perform the contract on his part, if
it were still executory. But this contract has been fully execu-
ted, on the part of the vendee, who has paid the purchase money,
and been let into the possession of the premises, and who in ad-
dition, if that were important, must have known at the time, that
the incumbrance existed. It is the established rule in Chancery,
that if a purchaser with knowledge of an existing incumbrance,
proceeds to execute the contract in part, as by the taking posses-
sion of the land, he will be required to execute in full ; and a for-
tiori will not be allowed to rescind it, after an execution on his
part. Colton v. Wilson, 3 P. Will. 191 ; and see also Beck v.
Simmons and Kornegay, 7 Ala. Rep. 71, where this question was
fully considered.
If this were a proper case for equitable interference, there
would be no pretence whatever for the injunction prayed for, as
the equity of Townsend, a bona fide purchaser of the judgment,
without notice of the plaintiff's demand or equity, if any existed,
is superior to his, and there is no connection whatever, between
the judgment thus sought to be arrested, and the claim of the
plaintiff, so as to affect Townsend with constructive notice. In
every view which can be taken of the case, the bill is utterly des-
titute of equity, and the decree of the Chancellor dissolving the
injunction must be affirmed.
JANUARY TERM, 1846. 376
Whitehurst, use, &c. v. Boyd.
WHITEHURST, USE, &c. v. BOYD.
1. An undertaking in writing, by the defendant, to pay the plaintiff, as agent,
several distinct sums of money, for a consideration therein expressed, at
definite periods, provided the titles which the plaintiff, as agent, executed
to him for a tract of land, were " good and sufficient," is a promise, subject
to the condition expressed ; and it is competent for the defendent, when
sued for the money, to prove that the titles were not such as the condition
contemplated.
2. Semble; where different instruments in writing are made at the same time
between the same parties, and relating to the same subject matter, they
constitute but one agreement, and the Court will presume such priority in
their execution, as wUl best effect the intent of the parties.
3. Where a promissory note recites] that titles to the land had been execut-
ed by the vendor to the vendee, and undertakes to pay the purchase money
if the title was good and sufficient, it is not enough that the conveyance
be in due form; but the vendee may defeat a recovery if the title itself he
not such as is provided for by the contract.
4. Where the contract of the parties requires that a deed, simultaneously ex-
cuted, should convey a good title as a condition to the payment of the
purchase money, the vendee, when sued, may plead that the title is in a
third person.
5. A replication which answers the plea but in part, leaving a material part
unanswered, is bad on demurrer.
Writ of Error to the- Circuit Court of Macon.
This was an action of assumpsit, at the suit of the plaintiff in
error. The declaration was upon three writings designated as
promissory notes ; the first of which is of the following tenor,
viz : " On the first day of January, 1844, 1 promise to pay Sea-
born J. Whitehurst, agent of James K. Giddins, six hundred dol-
lars, for the east half of a section of land, in Macon couaty, Alaba-
ma, provided the titles executed to me by said agent are good
and sufficient, and there be no incumbrance against the said land,
by judgment, mortgage or any other incumbrance ; which is the
first of three equal annual payments. C. L. R. Boyd." The
second is in all respects like this, save only, that it is payable on
the first of January, 1844, and "is the second of three equal an-
nual payments ;" and the third only varies from the second in be-
ing payable on the first of January, 1845, and " is the third of
three equal annual payments."
The first count avers that the half section of land to which the
notes refer, is part of section thirty-six, in township sixteen, and
876 ALABAMA.
Whitehurst, use, &c. v. Boyd.
range twenty-two, lying in Macon county, and that the titles exe-
cuted therefor to the plaintiff, are good and sufficient, " free from
incumbrance, by judgment, mortgage or other incumbrance;"
and thence deduces the liability to pay. There is added a second
count, in which the condition on which the payment was to be made
is wholly omitted ; and a third count, in which the notes are ful-
ly described as in the first, with an averment that the defendant
immediately upon his purchase, went into the possession of the
premises, and still continues to occupy and cultivate the same.
The defendant demurred to each count of the declaration, and
his demurrer being sustained to the third, and overruled to the
first and second, he pleaded — 1. Non assumpsit. 2. That the
notes described in the second, are the same as those described
in the first count, and none others, admits that they were given in
consideration of the sale of the land in the first count mentioned,
by the plaintiff, as the agent of Jumes K. Giddins, avers that they
were only to be paid upon the contingency expressed upon their
face, and sets out a deed purporting to convey the land to the de-
fendant. That deed is dated the 15th January, 1842, "between
Seaborn F. Whitehurst, agent of James K. Giddins, and C. L. R.
Boyd," &c. " Witnesseth, that the said Seaborn F. Whitehurs-,
for and in consideration of the sum of eighteen hundred dollars,
to him in hand paid, at and before the sealing and delivery of
these presents, hath bargained and sold, and by these presents
doth bargain, sell and convey," &c. Here follows a description
of the land, and the name of the defendant as grantee, and a gen-
eral warranty of title by Whitehurt, his heirs, executors, and ad-
ministrators and assign^ to the grantee, his heirs and assigns.
The plea then avers, that the plaintiff had no title to the land thus
conveyed at the time the deed bears date, or any subsequent
thereto ; but the title to the north east quarter of the section des-
cribed therein was, when the notes were made, and down to the
time of pleading, in James K. Giddens ; and the title to the other
quarter section then was, and still is, in S. M. Haggerty & Co,,
and this he is ready to verify, &c.
To this plea the plaintiff replied, that admitting the notes in the
first and second counts of the declaration mentioned, are identi-
cal and correctly described in the plea, the deed therein set forth
was executed by the plaintiff in virtue of a power of attorney
from Giddins to him. Here follows a formal power from Gid-
JANUARY TERM. 1846. 3Ty»
Whitehurst, use, &,c. v. Boyd.
dins to the plaintiff, to sell, dispose of, and make and execute ti-
tles for the former, of the land described in the plea and convey-
ance, which purports to have been executed on the 12th Janua-
ry, 1842. The replication concluded with an averment that the
deed set out in the plea was good and sufficient. Thereupon the
defendant demurred.
The demurrer was overruled as to the plea, and sustained to
the replication. Whereupon the plaintiff declining to plead fur-
ther, the cause was submitted to a jury, who returned a verdict
for the defendant, and judgment was rendered accordingly.
Cocke, for the plaintiff in error, made the following points, viz:
1. The third count of the declaration is good, and the demurrer
to it should have been overruled. It has been repeatedly decid-
ed by this Court, that a purchaser of land cannot resist the pay- .
ment of the purchase money for defects in the vendor's title, where
he has taken and retained the possession. [1 Stew. Rep. 490 ;
1 Ala. Rep. N. S. 136.] This is upon the ground that posses-
sion is beneficial, and he must seek redress by suing upon his
vendor's covenant. [6 Ala. Rep. 785; 7 Id. 71, 129, 346.]
True, in these cases, the respective stipulations of the vendor and
vendee were by distinct instruments ; but that can make no dif-
ference ; for they both evidence but a single contract. [1 Bing.
Rep. 196; 2 B. & A. Rep. 680 ; 5 Pick. Rep. 181, 395 ; 10 Id.
302.]
Where a deed is executed, the purchaser cannot resist the pay-
ment of the purchase money, although he never goes into pos-
session. [1 Ala. Rep. N. S. 273; 4 Id. 83.]
2. The 2d plea is bad — 1. Because it does not negative the
averment of the declaration, that the conveyance was good and
sufficient. 2. Because it does not answer the second count,
which is itself good without noticing the condition upon which
payment is promised. [4 Mass. Rep. 414 ; 1 Ala. Rep. N. S.
136 ; Lockard v. Avery, et al. 8 Ala. Rep. 502.] 3. Because
it asserts a legal proposition which is in itself untenable, viz : that
the plaintiff was the grantor when he had no title to pass. " A
contract to give a sufficient deed, is fulfilled by a valid deed of
whatever title the contractor had." [12 Johns. Rep. 442 ; 16
Id. 268 ; 20 id. 130 ; 15 Pick. Rep. 546.]
3. The replication is an answer to the plea in re-asserting that
378 ALABAMA.
Whitehurst, use, &c. v. Boyd.
the deed of conveyance was good and sufficient, and the issue
tendered by it in accordance with the contract, as ascertained by
a consideration of its nature, and all its parts. [8 Porter's
Reports, 497.] Applying the rules of construction, and it
' "is contended, that the word " titles" in the proviso means
" de^" — " executed to me" means " signed, sealed and deliver-
r ed.'' The deed being executed by an agent, it is fair to intend
that in inserting the proviso, the purchaser merely designed to
guard against a defect of authority in the agent, or in the form of
the execution of the deed.
The deed is not only good and sufficient in form, but conveys
whatever title Giddins had ; but if this be not so, or the deed is
not such as the contract contemplated, it is then insisted that the
demurrer should not have been sustained, but it should have been
left to the jury to say, whether, by instituting the action, Giddins
did not adopt it as his own. [9 Porter's Rep. 305.]
McLester, for the defendant in error, insisted, that the third
count of the declaration is bad, because it does not aver a per-
formance of the condition upon which the writings declared on
were made payable. [1 Chitty's Plead. 309-10-11 ; 10 Johns.
Rep. 213; 20 Johns. Rep. 15.] These writings are not notes,
but are conditional agreements, and such is the evident intent of
the parties to them, as indicated by the terms employed. [9
Mass. Rep. 78.]
The deed made by the plaintiff, is his own deed, and not that
of the person whose agent he affirms himself to be. [Sugden on
Powers, 205 ; 9 Porter's Rep. 305 ; Fowler v. Shearer, 7
Mass. Rep. 14 ; 4 Hen. & Munf. Rep. 184.] It is perfectly
clear, that the contract contemplated not merely a formal deed,
but the conveyance of a good title. [Ellis v. Burden,|l Ala Rep.
N. S. 458 ; 4 Ala. Rep. 21 ; 4 N. Hamp. Rep. 444 ; 11 Johns.
Rep. 54 ; 14 Pick Rep. 293.] If one sells and conveys land
which belongs to another, the purchaser subjects himself to an
action of trespass, at the suit of the true owner, if he enter; hence
although the vendee may not be able to defend at law for a de-
fect in his vendor's title, yet he may resist a recovery for a total
failure. A note for the purchase money of land is recoverable at
law, if the vendor is in possession, where a bond has been exe-
cuted for the conveyance of a title ; because, there the doctrine
JANUARY TERM, 1846. 379
Whitehurst, use, &c. v. Boyd.
of independent covenants applies. [1 Salk. Rep. 172 ; 1 Ala.
Rep.N.S.138.]
The cases cited by the plaintiff's counsel, do not conflict with
these views. The defence was disallowed in 20th Johns. Rep.
130, where the action was founded on a covenant ; because, by a
statute of N. York, a specialty could not be avoided, except for
illegality of consideration. [See also, 2 Johns. Rep. 177.] In
11 Johns. Rep. 584, which was assumpsit for the breach of an
agreement to purchase land, by the terms of the contract, the
vendor and wife were to execute a deed, with warranty of title,
upon the payment of a certain part of the purchase money ; after
the purchase, the vendee learned that there was a mortgage on
the land, and refused to pay. It was held that defence could be
made at law. The case in 4 Ala. Rep. 83, was, where the ven-
dor undertook to make a title when patents should be received
for the land ; the notes for the purchase money being payable at
certain prescribed times, were held to be recoverable at law, ac-
cording to the terms of the contract — the vendee had agreed to
risk the vendor's title when the patent issued.
COLLIER, C. J. — The writings declared on, present a case
unlike any of those cited by the plaintiff's counsel. Here the de-
fendant promises to pay to the plaintiff's agent, &c. certain sums
of money, for a consideration expressed at definite periods ; pro-
vided, the titles which the plaintiff, as agent, executed to him, are
good and sufficient, &c. Now although times are prescribed
when these payments shall be made, yet the defendant's under-
taking is not absolute, but is subject to the condition we have sta-
ted ; and though it may not be necessary to entitle the plaintiff to
recover, that he should show that he conveyed a good title, and
that the land was unincumbered, it is competent for the defendant
to prove the reverse. He provided by the terms of his contract
that the existence of either of such a state of things should prevent
a liability from attaching, or absolve him from the undertaking to
pay. We can conceive nothing in the nature of the agreement,
or in the language in which it is expressed, that should prevent
the Courts from giving effect to it according to the intention of
the parties.
The rules by which the dependency or independency of cove-
nants are to be determined, apply with all force to unsealed wri-
380 ALABAMA.
Whitehurst, use, &c. v. Boyd.
tings. In such cases the intent of the parties are said to extend a
controlling influence ; and for the purpose of ascertaining this,
regard must be had to the whole instrument — no particular form
of words being necessary to constitute a test, whether the cove-
nants are, or are not independent. [2 Pick. Rep. 451.] In
Watts V. Sheppard, 2 Ala. Rep. 425, we said, that the first gen-
eral principle in the construction of contracts, is, if possible to
carry into effect the intention of the parties. To do this the sub-
ject matter of the contract, the situation of the parties, the mo-
tives that lead to it, and the object to be attained by it, are all to
be looked to. Further, that such a construction must, if prac-
ticable, be placed upon a contract, as will make every clause ope-
rative. To the same effect see my opinion in Bates & Hines v.
The State Bank, 2 Ala. Rep. 451 ; 2 Cow. Rep. 781 ; 3 Miss.
Rep. 447 ; 1 Harring. Rep. 154.]
The case before us, bears no analogy to George & George v.
Stockton, 1 Ala. Rep. 136, or any of our previous or subsequent
decisions in which the same legal questions are discussed. In
that case, it is said to have been " repeatedly adjudged, that the
vendee of real estate, who has executed his note for the payment
of the purchase money on a day certain, and received from the
seller a bond conditioned to make title generally, cannot success-
fully resist an action at law on the note, upon the ground that no
title had been made." " This principle rests upon a rule which
has been often applied to covenants, viz : when the money is to
be paid at an appointed time, and the day of payment is to hap-
pen, or may happen, before the thing which is the consideration
of the payment of the money is to be performed, the performance
of the thing is not a condition precedent to the right to demand
the money." The condition of the bond in that case, it is true,
was expressed in unusual terms, so as to leave its meaning open
to construction. After describing the land, it stated the amount
of the purchase money to be « four hundred dollars, payable on
the 25th day of December next : now if the above bound John
C. Stockton, shall make, or cause to be made, to the said James
C.George, a good and equitable title to the above described land,
then he, the said James C. George, shall pay the said sum of four
hundred dollars, then the above obligation to be void, otherwise
to remain in full force and virtue." We were of opinion, that
considering the note and bond, as evidencing but a single con-
JANUARY TERM, 1846. 381
Whitehurst, use,^ &c. v. Boyd.
tract, the making the title was not a condition precedent, to the
right to demand the payment of the note. See also, 1 Chit. PI.
315; 2Blacks. Rep. 1313; Willes' Rep. 146,496.
It is unquestionably true, that where different instruments of
writing are made at the same time, between the same parties, and
relating to the same subject matter, they constitute but one agree-
ment ; and the Court will presume such priority in their execu-
tion, as will best effect the intent of the parties. [3 Mass. Rep.
138 ; 9 Cowen's Rep. 274; 5 Pick. Rep. 395 ; 10 Id. 250, 302 ;
13 Wend. Rep. 114; 10 Mass. Rep. 327, 379; 11 Id. 302.J
And it may be added that such instruments are to be construed
together. [5 Pick. Rep. 181, 395; 10 Pick. Rep. 298 ; 13 Mass.
Rep. 87.] But this proves nothing adverse to the defence set up
hi the present case. Here, although the defendant promised to
pay upon certain days, yet he limited his liability by a proviso,
which we have already stated, and said that the existence of the
state of things against which it guarded would furnish a bar to
the action. See the Bank of Columbia v. Hagner, 1 Peter's Rep.
465.
An undertaking to convey a title, it has been held, means a le-
gal title ; and where the right to demand the purchase money is
dependent thereupon, the convepance of such a title is a conid-
tion precedent. [Clute v. Robinson, 2 Johns. Rep. 613 ; 10
Id. 266; 3 Munf Rep. 159; 6 Id. 170; 12 Johns. Rep. 436;
Wright's Rep. 644 ; 1 Blackf. Rep. 380 ; 2 Greenl. Rep. 22 ; 2
Sergt. & R. Rep. 498.] '
It is argued for the plaintiff that the proviso in the writing de-
clared on, is in effect nothing more than an undertaking to exe-
cute a " good and sufficient" deed of conveyance,, and that the
issue which it was proposed by the declaration and replication
to form, narrowed the inquiry to the sufficiency of the deed, in
point of form. We will not stop to inquire whether a covenant
to execute a deed of that character, refers merely to the deed and
not the title ; and is consequently performed by the delivery of a
formal conveyance. However this may be, we think it perfect-
ly clear the case at bar does not come within the influence of
such a principle. Here the writings recite that the deed was
already executed, and the defendants object was to be secure in the
payment of the money, by reserving to himself the right to scan
the title, which the plaintiff had undertaken to convey, and if it
382 ALABAMA.
Scroggins v. McDougald, et al.
should be found to be defective, or incumbered, then to withhold
the purchase money. The language employed, and the obvious
purpose of the proviso all speak such to have been its meaning.
In respect to the insufficiency of the deed to convey the legal
title of the plaintiff's principal, we need not inquire, since the plea
alledges that the title to one quarter section of the land which it
undertook to convey, was not in Giddins when the deed was ex-
ecuted, but was then, and had been ever since, in Messrs. Ha-
gerty «Sz; Co. This plea, if true, is an answer to the action, and in
the state of the pleadings, its truth is not open to contestation.
The view taken shows that the replication is bad ; it answers the
plea but in part, by asserting that the deed was executed under a
power, which is set out in extenso, and thence concluding that it is
« good and sufficient ;" while it leaves unanswered the allegation
of Giddins' want of title.
If the vendor cannot make a good title so as to authorize him
to demand the purchase money, perhaps a Court of Chancery is
competent to administer relief, so far as may be compatible with
the contract of the parties, and in harmony with the justice of the
case. But we will not undertake to prescribe a remedy. The
decision of this cause does not require it.
It remains but to add, that the judgment of the Circuit Court is
affirmed.
SCROGGINS V. McDOUGALD, ET AL.
1. When a vendee is in the occupancy of land, which the vendor afterwards
sells to another, to whom he transfers the evidence of legal title, the sub-
sequent purchaser is charged with notice, and will be considered as hold-
ing the legal title as a trustee for the first vendee ; but is entitled to be re-
imbursed money expended necessarily in completing the legal title.
Writ of Error to the Court of Chancery for the 14th District.
The case made by the bill is this :
Certain persons named in the bill were constituted commission-
ers of the town of Crawford, in Russell county, for the purpose
of selling lots therein, and conveying titles to the same. Some-
>*,
JUNE TERM, 1845. 383
Scroggins v. McDougald, et aL
time in the year 1840, these commissioners sold to one McLean,
a certain lot described as No. 27, and executed to him a certifi-
cate of the purchase. McLean went into possession of the lot,
improved it, by building a log cabin, &c. and afterwards, in
March, 1841, sold the lot for 8300, to one Bagly, and executed
to him a bond conditioned to make titles, whenever he should re-
ceive the purchase money. Afterwards, Bagly being indebted
to the complainant, transferred to her the bond which McLean
had executed to him to make titles. The complainant, at the
time of the transfer of the bond, went into possession of the lot,
and has remained in possession ever since. After the transfer
of the land, Bagly paid the notes executed by him to McLean for
the purchase money. McLean, after the transfer of his bond to
the complainant by Bagly, in the early part of the year 1842,
transferred the certificate issued to him by the commissioners to
McDougald, the defendant, without any consideration paid there-
for, and McDougald afterwards procured, the commissioners to
execute a deed conveying to him the fee simple title, upon which he
commenced an action at law, to recover the lot from the com-
plainant, and refuses to convey the title to her.
The bill prays thart McDougald may be restrained from pur-
suing his said suit, and compelled to convey titles to the com-
plainant.
McDougald admits that McLean purchased the lot from the
commissioners, as stated by the bill, and asserts that McLean
transferred the certificate to him in payment of a debt which had
been long due. He asserts also, that he was entirely ignorant
that McLean held, sold the lot to' any other person, or that any
one was in possession of it when the certificate was transferred,
and that he furnished McLean money to pay the last instalment
due the commissioners. He admits that a deed in fee has been
executed by them to him, which he exhibits. ,
The bill as to McLean was taken as confessed, and the testi-
mony shows that Bagly was in possession of the lot in the years
1841 and 1842, and possibly longer; also, that the notes given
by him to McLean, for the purchase money, have been paid.
It was also admitted by the solicitor for McDougald, that the
complainant lived with Bagly on the lot in question, and had no
other place of residence ; that she was a single woman, and had
384 ALABAMA.
Scroggins v. McDougald, et al.
no other relative, and lived there with Bagly, at the time when the
deed to McDougald was made.
The Chancellor dismissed the bill at the hearing, chiefly be-
cause it did not appear from the evidence in the cause, that Mc-
Dougald knew that the possession of the lot in dispute was with
the claimant when the defendant acquired his equitable, as well
as legal title to the lot.
This is now assigned as error.
S. Heydenfeldt and Peck, for the plaintiff in error argued the
following points :
1. The possession of the claimant was adverse at the time of
the execution of the deed, and the deed being void for this, [Dex-
ter V. Nelson, 6 Ala. Rep. €8,] the parties are thrown on their
respective equities, and that of the complainant being the oldest,
and accompanied by possession, must prevail.
2. If McDougald's purchase was fair, yet he is chargeable
with notice of the equity of the complainant, on account of her
possession at the time of McDougald's purchase. [1 Atk. 522;
2 Lorn. & Stu. 472 ; 2 Sch. & Lef. 315 ; 13 Vesey, 120 ; 14 lb.
433 ; 2 Paige, 574 ; 6 Madd. 59.]
3. McDougald is not a bona fide purchaser, ior a valuable con-
sideration, and therefore cannot protect himself even if without
notice. [4 Paige, 21 5 i 1,9 John. 282 ^ .30 lb. 637 ; 1 Ala. Rep.
N. S. 21.] ■'•;•■.:. -;-:••.:•■.
J. E. Belser, contra.
GOLDTHWAITE, J The admissions of the counsel for
McDougald, as well as the evidence of the only witness examin-
ed in the cause, establishes that the complainant and Bagly, under
whom she claims, had the actual possession of the lot at the time
when McLean assigned the certificate of the commissioners to
McDougald, by means of which he subsequently obtained the ti-
tle. The only question therefore, in this aspect of the case is,
whether the possession so held was a sufficient matter to put the
defendant, McDougald, upon inquiry as to the title of the occu-
pants, and thus affect him with notice, although, in point of fact
he had no information that the possession was thus held. It is
laid down very generally in the books, that whatever is sufficient
JUNE TERM, 1845. 385
Scroggins v. McDouguld, etal.
to put the purchaser upon inquiry, is good constructive notice.
[Atkinson on Marketable titles, 573 ; 2 Sug. on Vend. 290.] It
is difficult to conceive what circumstance can be more strong to
induce inquiry, than the fact that the vendor is out of possession
and another is in. Accordingly it has been held, that informa-
tion to a purchaser, that a tenant was in possession, is also notice
of his interest. [Hiem v. Wall, 13 Vesey, 120.] And if any
part of the estate purchased is in the occupation of a tenant, it is
considered full notice of the nature and extent of his interest.
[Atkinson on Mark. Tit. 574.] In the American Courts, the
rule is very generally recognized, that if a vendee i^ in posses-
sion of lands, a subsequent purchaser or mortgagee has construc-
tive notice of his equitable right. [Brown v. Anderson, 1 Mon-
roe, 201 ; Johnson v. Gwathney, 4 Litt. 317; Charterman v.
Gardner, 5 John. C. 29 ; Governeur v. Lynch, 2 Paige, 300 ;
Grimstone v. Carter, 3 lb. 421.] As the complainant in this
case was in the occupancy of the land at the time when Mc-
Dougald acquired it by purchase or transfer from McLean, it is
immaterial whether knowledge of the occupany can be traced to
him, because the law casts on him the duty of ascertaining how
that fact is. If a different rule was admitted, a purchaser resid-
ing at a distance from the land, would rarely be charged with no-
tice on this account.
McDougald being chargeable with notice of the equities of
the complainant, can take nothing by the transfer made to him
by McLean, but holds the title acquired from the commission-
ers as a trustee. [Legget v. Wall, 2 A. K. Marsh. 149 ; Pugh
V. Bell, 1 J. J. M. 403.] He will therefore be compelled to con-
vey it, upon the re-imbursement to him of the sum actually paid
to the commissioners, to perfect the right to a legal title.
The decree, instead ofdismissing the bill, should have declared
the defendant, McDougald, trustee for the complainant, and di-
rected a reference, to ascertain the sum paid by him to the com-
missioners, to perfect the legal title to the lot, and on payment of
this by the complainant, to vest in her the title of McDougald.
Reversed and remanded to carry out the measures here indi-
cated.
49
386 ALABAMA.
Smith, Adm'r, v. The Heirs of Bond.
SMITH, ADM'R, v. THE HEIRS OF BOND.
1. The exception in the statute of limitations, that where the debtor is ab-
sent from the State, at the time the cause of action accrues, suit may
be brought " after his return into the State," means, after his return within
the jurisdiction of the State, where the process of the Courts of the State
will run. A removal to the Indian nation, where the process of the Courts
of the State did not run, is not a return within the State, though within its
territorial limits.
2. To complete the bar of the statute, the debtor must have been within the
State subject to its process, during the entire period provided as a bar: but
such period of time need not be continues, but may be composed of dif-
ferent periods of time.
Error to the Orphans' Court of Sumter.
This was a petition by the plaintiff in error, for leave to sell
certain lands of his intestate to satisfy creditors.
The heirs appeared and pleaded severally, the statute of limi-
tations of three years to the open accounts, and of six 5'ears to the
promissory notes filed as evidence. Replication of a subsequent
promise by Bond, the deceased, and that he had removed, and
resided beyond the jurisdiction of the Court to the time of his
death. A jury was empannelled.
From a bill of exceptions it appears, that testimony was offer-
ed to prove, that Bond was indebted to Winthrop & Co., and on
1st December, 1822, executed to them two notes, one due at four,
and the other at twelve months from the date. That in Febru-
ary, 1823, he resided at Cotton Gin, in the State of Mississippi,
where he continued to reside until the year 1 827, when he set-
tled in the Choctaw nation, in what is now called Sumter county,
where he lived until his death, in the fall of 1831, but made occa-
sional visits to Mobile, and that during one of these visits, on the
22d February, 1826, betook the benefit of the insolvent debtors
law, and filed and swore to a schedule of his debts, among which
he represented Josiah Wilkins and Moses Seawall as his credi-
tors for $3,130.
JUNE TERM, 1845. 387
Smith, Adm'r, v. The Heirs of Bond.
Upon this testimony, the petitioner moved the Court to charge,
that if Bond, at the time he contracted the debts, lived out of the
State, or before they fell due, removed beyond the jurisdiction of
the Courts of Alabama, and continued so to reside until his death,
that the notes were not barred by the statute; which charge the
Court gave, with this qualification, that if he made occasional vis-
its to Mobile, within the jurisdiction, and this was known to the
creditors, and that during these visits, he could have been served
with process, then, although he resided abroad, the statute would
run in his favor. .
He further moved the Court to charge, that if the deceased re-
sided without the jurisdiction, and made occasional visits within it,
that the time only of his stay within the jurisdiction could be
computed, against the time provided by the statute as a bar.
This charge the Court refused, and charged, that the progress of
the statute could not be arrested, if these visits were known to
the creditors.
The Court was further moved to charge, that the schedule
contained evidence of a subsisting debt, at the time, for the amount
stated, and that if from that time until his death, in 1831, he re-
sided in the Choctaw nation, the debt was not barred by the sta-
tute : which charge the Court gave, with the same qualification
as above. To all which the petitioner excepted. The jury
found a verdict for the heirs, and judgment accordingly.
The errors assigned, present the propriety of the charges of the
Court.
Graham, with whom was Hale, for plaintiff in error.
The civil and criminal jurisdiction of the State, did not extend
to that part of the State called Sumter county, until the act of the
16th January, 1832,nor could any cause arising in Sumter,be tried
until the act of 12th January, 1833, when it was made part of
the seventh judicial circuit. So that Bond, from the time he con-
tracted these debts until 1831, the time of his death, resided be-
yond the jurisdiction of our Courts, and could not be sued.
The statute of this State, (Clay's Dig. 327,) is unlike most oth-
ers, as it declares that the time during which the debtor is out of
the State, shall not be computed. Although the deceased was
for a period of time within the limits of the State, he was without
the jurisdiction, and if not within the letter, was clearly within
the meaning of the law. [1 Johns, Cases, 80.]
388 ALABAMA.
Smith, Adm'r, V. The Heirs of Bond.
The debt of Wilkins & Seawall was not an open account.
[6 Wheaton 514; 8 Porter, 230 ; 1 Ala. Rep. 62 ; 5 Ala. Rep.
601.]
F. S. Lyon, contra.
ORMOND, J The principal questions presented upon the
record, arise out of the exception in the statute of limitations, re-
lating to absence from the State : " If any person, against whom
there is, or shall be any cause of action, as is specified in the pre-
ceding sections of this act, is, or shall be, out of this State at the
time of the cause of such action accruing, or any time during
which a suit might be sustained on such cause of action, then the
person, or persons, who is, or shall be, entitled to such action,
shall be at liberty to bring the same, against such person, after his
return into this State ; and the time of such person's absence
shall not be accounted, or taken as part of the time limited by
this act." [Clay's Dig. 327, § 84.]
The defendant in error contends, that the statute would com-
mence running, as soon as the deceased returned to the State, if
his visit was notorious, so that he could be sued, and having com-
menced, would continue to run, notwithstanding his subsequent
departure from the State. As it is the established construction,
thatthe statute of limitations, when it begins to run, continues to run,
notwithstanding an intervening disability to sue, if our statute had
merely provided, that suit might be brought after the return of the
debtor into the State, it is probable the true construction would have
been, that the statute commenced running from that time, if the
return was not clandestine, but open and notorious, so that the
creditor might, if he thought proper, institute a suit ; and having
commenced, would continue to run, notwithstanding the debtor
afterwards left the State. Such was the construction put upon
a statute of Massachusetts, almost in the precise language of this
part of the exception in ours. [Little v. Blount, 16 Pick. 369.]
The exception in our statute does not stop here, but continues
further, and provides, « and the time of such person's absence,
shall not be accounted, or taken, as a part of the time limited by
this act." The construction contended for, renders this clause of
the statute wholly inoperative, as without it, it is perfectly obvi-
ous, that the tirhe of the absence from the State, would not be
JUNE TERM, 1845. 389
Smith, Adm'r, v. The Heirs of Bond.
computed, up to the first open, and notorious visit to the State. It
is our duty, and such is the well settled rule upon the construc-
tion of statutes, to give effect, if possible, to every part of it, and
effect can only be given to this clause, by understanding the Le-
gislature to mean, that the statute would not run in favor of the
debtor, unless he had been within the State, during the entire pe-
riod of time provided by the statute as a bar.
By the Revised Statutes of Massachusetts, C. 120, § 9, a simi-
lar provision to the one now under discussion, was introduced,
and considered in Battle V. Fobes, 18 Pick. 532, more fully re-
ported in 19 Pick, 578, an attempt was there made, to bring this
last exception to bear upon the case. The Court, as we under-
stand the opinion, admitted, that under the influence of that ex-
ception, the statute would not be a bar, unless the defendant had
been within the State during the whole period of time provided
as a bar ; but it held, that the 'case was to be governed by the
statute in force at the time the plea was pleaded, which made the
statute run from the time of the return of the defendant to the
State, if such return was open and notorious, so that the creditor
if he had thought proper, might have sued.
Our opinion therefore is, that to make the bar of the statute ef-
fectual, the debtor must have been within the State, subject to be^
sued, during the whole period provided as a bar, but it is not ne-
cessary that it should be continuous, it may be composed of dif-
ferent portions of time, if the aggregate makes the period of time,
which is designated as a bar, which in this case would be six
years.
We are next to consider, what is meant by the terms, " out of
this State, at the time of the cause of such action accruing," and
« return into this State."
The manifest object of the statute was, to prevent the act
from operating as a bar, unless during the entire period, the debt-
or had been subject to be sued within the State, and it would seem
very clear, that a residence in the Indian nation, though within
the chartered limits of the State, but into which the process of our
Courts could not be sent, or executed, would not be a " return in-
to the State," within the meaning of the statute. The clear mean-
ing of the clause is, that the debtor must return within the juris-
diction of the State, so that he may be sued. Indeed the statute
is express, that the creditor " shall be at liberty to bring the same.
390 ALABAMA.
Smith, Adm'j, v. The Hdrs of Bond.
[a suit,] against such person, or persons, after his, her, or their
return into this State." A return, tljerefore, within the chartered
limits of the State, but to which the jurisdiction of the State did
not extend, would not be within the exception of the statute, any
more than a secret and clandestine return within the jurisdiction
of the State. In both cases the intent of the statute would be de-
feated, thei opportunity afforded the creditor of collecting, or
at least suing for his debt.
A similar construction has been given to other statutes of limi-
tations, in which the letter of the act has been departed from, to
give effect to the clear intent of the statute. Thus the term
« beyond seas,'' in the saving clause, has been held to mean be-
yond the limits of the State. [Murray's Lessee y. Baker, 3
Wheaton,541 ; Shelby v. Gay, 11, Id. 361 ; Faw v. Roberdeau,
3 Cranch. 174.] These cases are strongly analagous, but the
precise point was determined in Sleght v. Kane, 1 Johns. Cas.
76. The question to be decided was, whetfier the defendant
was within the State of New York, at a particular time, at which
he alledged a return to the State, so as to bring himself within an
exception of the statute. The portion of the State to which
he returned, was within the British lines, during the war of
the Revolution. The Court held, he was not within the
State, within the meaning of the statute, " because he was
out of the jurisdiction of the State; he was quasi out of the realm ;
he was where the authority which was exercised, was not deriv-
ed from the State, but from the King of Great Britain by the right
of conquest. No writ of the State could run there, consequently
« no suit could be brought against him' there."
It seems therefore perfectly clear to us, both upon reason and
authority, that the time of Bond's residence, in that part of the In-
dian nation, now Sumter county, before the jurisdiction of the
State Courts was extended over it, cannot be computed as part
of the time, during which he was in tjie State, nor his removal
there, a "return to the State," within the meaning of the statute.
There can be no doubt, that the admission made by Bond in
the schedule made to obtain the benefit of the insolvent debtors
[aw, was an admission of the existence of the debts there enu-
merated ; and whatever might have been their character before,
after that time they ceased to be " open accounts."
Let the judgment be reversed and the cause remanded.
JUNE TERM, 1845. 391
Kennedy V. Kennedy's Adm'r.
KENNEDY V. KENNEDY'S ADM'tt.
1. Where the genuineness of a copy of the proceedings of the Probate Court
of a sister State are authenticated by the attestation of its clerk, the cer-
tificate of tlie Judge to the official character of the clerk, and the formali-
ty of his attestation, and the additional certificate of the clerk, in the terms
of the law, to tlie official qualification of the Judge, its authentication is
complete,.under the act of, Congress of 1804, amendatory of the act. of
v79o/: i- ■'■■■■'■.'■:,■ . V,,.:'- V'-'^~:'T':.' '••■V--^'' ■ ;^'^'
2. A pers<Jnuppoiiited ah'&dihinistrator in another State, may maintain an
action as provided by the statute, if no pe rsonal representative shall have
been appointed and qualified here ; ■end where a debtor of the intestate has
been appointed administrator in this State, he may plead his appointment
and qualification in 6ar of an action by the foreign administrator brought
for the recovery of the debt
•;Writ of Error to the Circuit Court of Greene.
The defendant in error declared against the plaintiff in assump-
sit upon a promissory note made by, the letter, on the 23d De-
cember, 1842, for the payment of $963 18, to the intestate on
the 18th January next thereafter. To this the defendant plead-
ed— 1. That the plaintiff below was not the administrator, &c.
of Margaret Kennedy, " at the lipe of bringing the said suit," as
alledged in his declaration. 2. That before the institution of the
plaintiff's action, to wit, on the 12th February, 1844, the defend-
ant was duly appointed adnninistrator, &c. of Margaret Kenne-
dy, deceased, by the Judge of the County Court of Greene coun-
ty, Alabama,, exercising the jurisdiction of the Orphans' Court ;
that he qualified, and still is the administrator, &c. Wherefore
he prays judgment, &c. Issue was joined upon the first plea,
and the plaintifTdemurred to the second ; the demurrer was sus-
tained, the issue of fact tried, a verdict returned lor the plaintiff,
and judgment rendered accordingly.
At the trial a bill ofexceptions was scaled at the instance of
the defendant, in which is set out in extenso the copy of a paper
purporting to be letters of administration upon the goods, chat-
tels and credits of the intestate, granted to the plaintiff by the
392 ALABAMA.
Kennedy v. Kennedy's Adm'r.
Court of Probate of Kemper county, in the State of Mississippi,
with the attestation of the clerk and certificate of the Judge of
that Court. To the letters of administration it was objected, that
.it was not admissible evidence, because it was not authenticated
pursuant to the act of Congress ; but the Court overruled the ob-
jection, and permitted the paper to go to the jury.
W. & J. Webb, for the plaintiff in error, contended — 1. Con-
ceding that the plaintiff below administered on Margaret Kenne-
dy's estate in Mississippi, yet, if the plaintiff obtained letters of
administration in Alabama, he was not liable to be sued here by
the foreign administrator. [Clay's Dig. 227.] 2. The matter
■ of the second plea, was perhaps pleadable in abatement, but if
this be so, it was certainly good in bar. [1 Chitty's Plead. 8th
Am. ed. 445-6,457; 1 Saund. Rep. (note 3,) 274; Cloud v. Go-
lightly's Adm'r 5 Ala. Rep. 654, does not oppose this position,
and it is sustained by Jenks v. Edwards, 6 Ala. Rep. 143, and
Stallings v. Williams' Adm'rs, Id 510. 3. The defendant be-
low should have been permitted to amend his pleading — the only
discretion which the Circuit Court had upon the subject, was in
prescribing the terms of the amendment. [Clay's Dig. 334, § 1 19;
6 Ala. Rep. 510.] 4. The transcript of the proceedings of the
Probate Court of Kemper, should have been certified as an ex.
emplification of an office book, &.c. as required by the act of Con-
gress of 1804. [Clay's Dig. 619, 620.] There was no proof
that that Court is a Court of reco^, or it would be conceded that
the authentication conformed to the act of 1790. The objection
to the authentication is, that it has no sufficient certificate by the
clerk, (as required by the act of 1804,) of the official character of
the Judge. True, there is such a certificate, but it bears date
previous to the certificate made by the Judge.
H. I. Thornton, for the defendant, insisted, that the proceed-
ings of the Probate Court of Kemper were authenticated pursu-
ant to the act of Congress, He contended that Cloud v. Golight-
ly's administrator, 5 Ala. Rep. 654, very clearly established the
insufficiency of the second plea, and is not affected by the subse-
quent decision of Stallings V. Williams' Adm'r, 6 Ala. Rep. 510;
further, the first plea is treated in the replication as a plea in bar,
agreeably to the decision in Jenks v. Edwards, Id. 143.
JUNE TERM, 1845. 393
Kennedy v. Kennedy's Adm'r.
COLLIER, C. J.— In Hughes v. Harris, 2 Ala. Rep. 269, the
proceedings and judgment of the Court of a sister State were cer-
tified by the clerk, and attested by the presiding Judge, and in
form were such as were had in a Court of record ; we held, that
it would be intended, without further proof, that the Court ren-
dering the judgment was a Court of record — there being no plea
putting that fact in issue. Without stopping to inquire, whether
the same intendment should be indulged in favor of the Probate
Courts of Mississippi, we are satisfied, that the transcript of the
grant of administration to the plaintiff, made in that State, is not
obnoxious to the objections which the defendant below has made
to it. The clerk first attests the genuineness of the copy, then the
Judge certifies to the official character of the clerk, and the for-
mality of his attestation ; and lastly, the clerk vouches, in the
terms of the law, the regularity of the Judge's qualification, &c.
This is in conformity to the act of Congress of 1804, amendato-
ry of the previous enactment of 1790. The attestation of the
clerk, and several certificates consequent thereon, are all dated of
the same day, and must be intended to have been made in the
order in which they follow each other.
By an act passed in 1821, it is enacted, that when letters of
administration, &,c. on the estate of any intestate, &c. having no
known place of residence in this State, at the time of his death,
shall have been duly obtained in any other State, &c. and no per-
sonal representative of such intestate shall have been appointed,
aad qualified, in this State, the representative appointed out of this
State, " may maintain any action, demand and receive any debt,
and shall be entitled to all the rights and privileges which he, she
or they could have done, or would have had, if duly appointed,
and qualified within this State." [Clay's Dig. 227, § 31.] The
question arising upon this statute, in the present case, is, whether
a domestic administrator, when sued in our Courts, by one ap-
pointed abroad, should plead his appointment in bar.
In Cloud V. Golightly's Adm'r, 5 Ala. Rep. 654, we said, that
it was not necessary for a foreign administrator, suing in our
Courts, to negative by his declaration, that the intestate had a
known place of residence in this State at the time of his death, or
that his estate within the same had been committed to a domes-
tic representative. The dictum was also added, that if a debtor
50
394 ALABAMA.
Kennedy v. Kennedy's Adm'r.
of the estate denies the right of an administrator appointed abroad
to maintain an action, he should plead in abatement, the existence
of those facts which are fatal to the remedy.
In Jenks v. Edwards, 6 Ala. Rep. 143, the question was di-
rectly raised, whether, where a suit was brought in the name of
one person for the use of another, it was allowable to plead in bar,
that the nominal plaintiff was dead at the commencement of the
action. After a very full examination of the point we said, " Our
conclusion from the authorities is, that, where the plaintiff's disa-
bility is such, that it cannot, in rerum natura, be removed, at
any time in future the defendant may alledge it either in bar or
abatement." Again, the question is asked, why a plea in bar
would not be good? and thus answered: « The nature of
it, (the defence,) is such, that it cannot give the plaintiff a
better writ, that he may institute another suit ; and a verdict
upon an issue thus formed, against the plaintiff, will not bar
an action by his personal representative, founded upon the same
cause. Upon principle then, we think the plea" in bar well
pleaded.
The dictum in the first case, we are still inclined to think, cor-
rectly lays down the law, viz ; that a debtor of a deceased per-
son, when sued in Our Courts by a foreign administrator may
plead in abatement, that the deceased had a known place of resi-
dence in this State, or that his estate within the same had been
committed to a personal representative. True it is said that this
is the correct practice, yet it is not intimaed, either directly or
indirectly, that it is the only mode in which the debtor may ob-
ject to the want of authority by an administrator appointed abroad
to sue in our Courts. There is then nothing in the decision re-
ferred to, establishing that a plea in abatement is the exclusive
remedy for the defendant in the case supposed, though we will
not say that such is not the law. The citation is at most a mere
obiter dictum, and we should not be inclined to yield to it the
force of authority, but if necessary would examine the point as
res integra.
In Jenks v. Edwards, we supposed that if the plaintiff's disa-
bility be perpetual, it might be pleaded in bar, but if temporary
only, it was matter of abatement. Here the right of action, if it
ever existed, was entirely lost by the grant of administration to
the defendant, by the proper Court in this State. A foreign ad-
^ JUNE TERM, 1845. - 395
Stone, et al. v. Lewin,
ministrator is only permitted to sue here by the favor of the Le-
gislature, and then only when no domestic representative has
been duly appointed and qualified. If the defendant could be
considered merely as a debtor, and administration had been here
committed to some third person,the remedy of the foreign adminis-
trator would perhaps be in abeyance, subject to be put in action
whenever there shall cease to be a domestic representative ; and
in such case it may be that the suit could only be arrested by plea
in abatement. But the defendant pleads that he had been duly
appointed and qualified as an administrator in this State ; this be-
ing the case, if he was a debtor of the intestate's estate, he would
be chargeable with cash to the extent of his indebtedness. In
Childress v. Childress, 3 Ala. Rep. 752, we said — " True, it is the
duty of an executor to collect the debts due the estate he repre-
sents ; but there is no process by which he can coerce a collec-
tion of himself, and as he is the party who is both to pay and re-
ceive the money, the law will regard him as in possession of it,
from the time it became due." From the law as here stated, it
results, that the debt due by the defendant to the intestate's
estate, ceased to be a chose in action after its maturity ; but
became, in contemplation of law, so much money in possession.
From this view of the law, it would seem, that the matter of
the second plea constituted a perpetual bar, and was well plead-
ed. The demurrer was therefore improperly sustained; the con-
sequence is, the judgment of the Circuit Court is reversed and
the cause remanded.
STONE, ET AL. v. LEWIN.
1. The Supreme Court cannot be invested with jurisdiction to examine a
cause in Chancery by a writ of error sued out on a decree pro forma, enter-
ed by consent of the parties. It is competent for the chancellor to set aside
such a decree as having been entered without any sufficient authority.
396 - ALABAMA.
Stone, et al. v. Lewin.
Writ of Error to the Court of Chancery for the 22d District
of the Middle Division.
As neither the bill, answers, nor proofs are considered in the
judgment of the Court, it is only necessary to state so much of
the proceedings and decree as is covered by the opinion.
At the July term, 1842, the cause was continued, because the
Chancellor then holding the Court had been of counsel for the
complainant. At a special term, held in the same year, an ar-
greement was entered of record to take proof; that at the next
term of the Court, the Chancellor who had been of counsel, might
determine the question of diligence, in the event of an applica-
tion for a continuance, and that, when the cause is heard, should
he preside, a decree pro forma be entered for or against the com-
plainant as she might elect: at the July term, 1844, this entry ap-
pears : " This case is submitted for a decree on bill, answers,
and exhibits, by consent, with an agreement that a decree pro
forma be rendered by this Court, in favor of the complainant, per-
petuating the injunction heretofore in this case granted. It is
therefore ordered, adjudged, and decreed, that the said injunction
be, and the same is hereby, rendered perpetual, and that the de-
fendants pay the costs herein.
Peck and L. Clark, for the plaintiffs in error.
No counsel appeared for the defendant in error.
GOLDTHWAITE, J.— We suggested, in the recent case of
Elmes V. Sutherland, supra, that it was questionable if this Court
•was invested with any jurisdiction when a decree is not made by
the Chancellor, but is entered pro forma, by the consent of the
parties, in order to have a decision here more speedily, or from
any other cause. This case presents the matter of such a decree
so fully, that we must now decide the question, or consider it at
rest.
At the formation of our State Government, it was provided,
that "the Supreme Court, except in cases otherwise directed by
the constitution, shall have appellate jurisdiction only. This is
to be coextensive with the State, under such restrictions and reg-
ulations, not rej)ugnant to the constitution, as may from time to
JUNE TERM, 1845. 897
Stone, et al. v.Xiewin.
tihne, be prescribed by law." [Const. Art^. 5, § 2.] It is quite un-
necessary to speculate upon the reasons which induced the prohi-
bition contained in this section, as there can be no doubt of the
intention to exclude the exercise of any original jurisdiction by
the Court, as a Court. Our duty certainly is, to give it the effect
which its authors intended it should have, and this can only be
done by refusing to entertain jurisdiction of cases which have
not, in point of fact, been decided by the inferior Courts. It is
quite evident, that if the consent of parties can confer what is re-
ally original jurisdiction upon this Court, many cases will find
their way here, which otherwise might not come; and it might be-
come common to use the inferior Courts as mere offices for the
preparation of cases.
In England the jurisdiction of the several Courts is not as with
us, defined by a written constitution, but is chiefly ascertained
from long continued usage and practice. The Court of the Mas-
ter of the Rolls, though originally merely a branch of the Court
of the Lord Chancellor, had gradually acquired such considera-
tion, that Lord Elden, in Brown v. Higgs, 7 Vesey, 5G1, enter-
tained serious doubts whether he was authorized to entertain an
appeal from a re-hearing had by that Judge, and directed that mat-
ter to be argued before him. After hearing the argument and
ascertaining that the duty was imposed, he said, " it has been
thought, tha;t in cases of this sort, the Court might formally afiirm
the judgment, and suffer the cause to go to the House of Lords,
by reference to other cases, when it is conceived the parties mean
to go to the House of Lords. But I consider it contrary to
the duty of a Court of justice under any circumstances so to
act. The suitors have a right to the deliberate attention and
deliberate judgment of every Court, in every stage in which,
according to the constitution, the cause may proceed; and
there can be no circumstances jindcr which I should ever permit
myself to say, as the the cause is to go elsewhere, I give no
judgment."
It is true, every suitor has the right to be heard ultimately, in
this Court, but because this is so, it does not follow that he can
come here in the first instance, or what in effect is the same thing,
by consenting that the Court provided by the constitution to first
hear his cause, shall decline that duty, and give effect to his con-
398 ALABAMA.
Stone, et al. v. Lewin.
sent to remove it here. We are not to be understood as imply-
ing any censure upon the Chancellor in this particular instance,
as a very satisfactory reason existed why he should not deter-
mine the cause, and even if this reason was out of the way,
the practice has been so common, that pro forma decrees
might seem to be entirely warranted by the consent of the
parties.
We have endeavored to show, that this practice is in conflict
with the letter and spirit of the constitution, and earnestly hope
that it may be entirely eradicated, as it is frequently important to
a deliberate and correct examination of the cause in this Court,
that it should have received a careful examination in the subor-
dinate Courts. It is only when a cause is thus examined in the
Court of original jurisdiction, that the many mistakes of the par-
ties can be corrected, deficiencies supplied, and new views pre-
sented. If this examination is deferred until the cause comes
into the appellate Court, there can, in most cases, be neither
amendment or revision of the evidence, or frame of the proceed-
ings, and great injustice may result to suitors. The cause now
before us, is an illustration of the evil of this practice, as no evi-
dence was taken to sustain the bill, and the reversal of the Chan-
cellor's decree would conclude the complainant, when if the same
deficiency had been disclosed to him, he might have exercised his
discretion in permitting the party to take testimony. -
The parties were probably induced to the course taken here
by the circumstance that the presiding Chancellor had been of
counsel for one of them, previous to his taking the office, but
this cannot give the Court jurisdiction. If this matter stands in
the way of a decision, a change of venue could have been had
under the statute. [Clay's Dig. 356, § 73.]
We have had some difficulty, whether a reversal of the de-
cree, or a dismissal of the writ of error, is proper under the cir-
cumstances, as we find it stated to have been held, by the
House of Lords, in Blundell v. Macartney, 2 Ridge Part C. 557,
that a decision founded on an order made by consent, will not
be reversed. We have not access to that decision to ascertain
its precise extent, but think it would be going entirely too far to
say, the parties are concluded by their consent to \hL\s pro forma
decree. We think the proper course is to dismiss the writ of error,
JUNE TERM, 1845. 399
Vance v. Wells & Co.
and the party can then apply to the Chancellor to set aside the
pro forma decree, as unwarranted, and the cause will then pro-
ceed to its final termination.
Writ of error dismissed. . .
VANCE V. WELLS & CO.
1. Where several replications are made to one plea, the Court, on motion,
will strike out all the replications but one, and put the plaintiff to his elec-
tion which he will retain. Or the objection may be made by a demurrer to
all the replications, but not by a separate demurrer to each.
2. Where goods are furnished to a married woman, on the faith of her sepa-
rate estate, or she executes a note as the surety of her husband, there is
such a moral obligation to pay the debt, as will support an action at law on
a promise to pay, after the coverture has ceased.
3. Where a married woman, having a separate estate, executes a note in her
own name, it is prima fade evidence that the goods were furnished, or cre-
dit given, on the faith of her promise. • ^ ., •
Error to the Circuit Court of Russell.
Assumpsit by the defendant against the plaintiff in error.
The declaration is upon a promissoiy note. The first count is
in the usual form upon the note. In the second count, after de-
claring upon the note in the usual way, it proceeds to alledge that
in consideration of her liability upon the note, and in considera-
tion that the plaintiffs would indulge her for the space of three
months without suit, the defendant pronounced to pay the sum
due upon the note, on request, and an averment that the indul-
gence was given, and that on request she refuses to pay. To
this count the defendant demurred, and her demurrer being over-
ruled, pleaded the general issue. 2. Coverture at the date of the
note.
The plaintiffs took issue on the first plea, and to the second,
replied — first, that after the death of the defendant's husband, in
400 ALABAMA.
Vance v. Wells & Co.
consideration of indulgence for three months, she promised to pay
the note, and avers that the indulgence was given.
Second, that at the time the note was given by the defendant,
she had a separate estate, and after she became discovert promis-
ed to pay it.
Third, that when the note was executed by defendant, she had
a separate estate, and after she became discovert, in considera-
tion of forbearance, promised to pay the debt, and that the indul-
gence was given. .
• To each of these replications the defendent demurred. The
Court sustained the demurrer to the second replication, and over-
ruled it as to the first and third — upon which the defendant took
issue.
Upon the trial it appeared, that the defendant at the date of the
note was a married woman, living with her husband, and testimo-^
ny was offered, conducing to show, that she had a separate es-
tate, but there was no proof that the plaintiff gave her credit on
the faith of her separate property, or that any thing was said about
it, at the time ; or that the goods purchased, and for which the
note was executed, went to her separate use. It was also prov-
ed, that after the death of her husband, she promised to pay the^
note, if an indulgence of four months was given to her, which
was accordingly done. It did not appear that when she made
the promise, she was aware that she was not liable on the note.
Upon this state of facts, the defendants' counsel moved the
Court to charge, that before they could find for the plain-
tiff, they must be satisfied that credit was given to the de-
fendant by the plaintiffs, on account of her separate estate, -
otherwise the plaintiff could not recover on the subsequent pro-
mise.
2. That before the plaintiffs could recover, they must satisfy the
jury, that at the time the subsequent promise was made, the de-
fendant knew, that by means of the coverture she was not liable
upon the note.
3. That in this form of action, the plaintiff cannot recover, if
the defendant had a separate estate at the date of the note, out of
which she was bound to discharge it.
4. That no admission made by the defendant, as to her own-
ing a separate estate, made during coverture, and after the death
JUNE TERM, 1845. 401
Vance v. Wells & Co.
of her husband was admissible in evidence. These charges ik^
Court refused to give, and the defendant excepted. * / •
The assignments of error are — 1. In overruling the demurrer
to the second count of the declaration.
2. In overruling the demurrer to the first and third replica-
tions. ^. ,
3. In the refusal to charge as moved for.
Belser, for plaintiff in error.
No counsel appeared for the defendant. ^.
• ■ " ^ * • ■ * •
ORMOND, J. It i^ now objected that the Court should have
sustained the demurrers to the replication to the second plea, be-
cause more than one replication to a plea is not allowed. It is
true that this Court, in Gray v. White, 5 Ala. Rep. 490, and again
in Stiles v. Lacy, 7 Ala. Rep. 17, held that to be the law, but the
objection to this vicious pleading, has not been taken in such a
way, that in can be noticed by this Court. The proper mode
would have been, to move the Court to strike out all the replica-
tions but one, and the plaintiff would have been put to his election
which he would retain ; or it might have been reached by a gen-
eral demurrer to all the replications. A separate demurrer to
each, did not raise this question in the Court below, and for that
reason, it cannot be for the first time sprung upon the plaintiff in
this Court. We must therefore consider the sufficiency of the
pleadings brought to view by the demurrers — the second count
of the declaration, and the first and third replications to the se-
cond plea.
The law of this case, as expounded by this Court when the
case was last here, is, that the defendant was liable upon her pro-
mise made after the coverture had ceased, if the promise made
during coverture was supported by a moral obligation, and the
subsequent promise made upon sufficient consideration.
The moral obligation would be established, by showing either,
that the goods for which the note was given, were furnished on
the faith of the separate estate which it appears the wife had, or
that the note was executed by her as the surety of her husband.
That, was the case of Lea v. Muggeridge, 5 Taunton, 37, where
the question was elaborately considered, and we think that the
fact, that the defendant had a separe estate, and whilst a. feme co-
51
402 . ALABAMA.
Kirksey, et aL v. Mitchell.
vert executed the note in her own name, would be at least prima
facie evidence that the goods were furnished, or credit given, on
the faith of her promise to pay; and that consequently, there was
a moral obligation resting on her to pay the debt, which could be
enforced at law, upon her subsequent promise. Nor can it be
doubted, that the delay would be a sufficient consideration to sus-
tain it.
To apply these principles to this case. The demurrer to the
declaration was properly overruled, as it is perfectly good upon
its face. The fact of coverture when the note was executed,
does not appear in the declaration, but is disclosed by the plea,
in answer to which the plaintiff undertakes by his replication to
show, that notwithstanding such was the fact, he is still entitled
to recover. The inquiry then is, is the replication sufficient, ac-
cording to the principles above laid down. Neither of the repli-
cations are sufficient. It should have been averred, that the note
was given under such a state of facts, as would show that the de-
fendant was under a moral obligation to pay it ; as for example,
that the consideration of the note was goods, or money furnished
upon the faith of her separate estate; or that she became the sure-
ty of her husband, and that after the death of her husband, she
promised on sufficient consideration to pay it. The Court also
erred in refusing the first charge moved for by the plaintiff in
orror. Let the judgment be reversed and the cause remanded.
■Jv'ii^
KIRKSEY, ET AL. vs. MITCHELL.
1. D. sold sundry tracts of land to L. on a credit; L. sold one of them to B.,
and another to M : D. agreed with B. to release the tract purchased by"
him upon the payment of a certain sum of money ; but at the time of this
agreement D. was not informed that M. was a sub-purchaser of L ; D. ob-
tained a decree for the sale of the lands, to satisfy his equitable lien, and
assigned the decree to K : Held, that the land claimed by M. was not ex-
empted from the operation of the decree by the arrangement which D.
JUNE TERM, 1845. 403
Kirksey, et al. v. Mitchell.
made with B., nor could it be released by the payment of a sum corres-
ponding with what was paid by B., considering the relative value of the
two tracts.
2. Neither the purchaser of lands, nor his assignee, can be charged with
rents received upon a bill to enforce the equitable lien of the vendor ; and
if the assignee of the vendee becomes the assignee of the decree recover-
ed by the vendor, a sub-purchaser of a part of the land from the vendee
cannot relieve it from the decree, by compelling the assignee to appropri-
ate the amount received by him for rent, to the satisfaction of the decree,
pro tanto.
' Writ of Error to the Court of Chancery sitting in Talladega.
In April, 1840, the defendant in error filed his bill setting forth
that on the 17th day of August, 1838, he purchased of Robert L.
Lane, the east half of the north west quarter of section thirty-two,
in township sixteen, range six in the Coosa Land District, for the
sum of five hundred dollars, paid in hand, and received from his
vendor a bond conditioned to make « full and sufficient title" to the
same. At the time of his purchase, the complainant was put in
possession of the land, and thereupon improved the same, by clear-
ing and putting in cultivation one half, and inclosing with
a good fence the entire tract. 'The complainant supposed
he was purchasing an unincumbered title, but has recently learn-
edhy a newspaper printed in Talladega, that the land in ques-
tion was advertised for sale on the 4th day of May, 1840, by the
Register of the Court of Chancery sitting in that county, as well
as othv lands of Robert L. Lane, to pay to Eli M. Driver the
purchase money for the same. All of which lands the complain- •>
ant is informed had been sold by Driver to Lane.
It is charged in the bill that Lane had from time to time paid
Driver, on account of his purchase, different sums of money ; that
the land in controversy is the only tract included in Lane's pur-
chase from Driver which the former had disposed of, unless it be
another eighty acre tract, for which Driver has received pay-
ment since Lane removed from the State.
Complainant is informed that at the last term of the Chancery
Court holden in Talladega, Driver obtained a decree in equity,
subjecting all the lands purchased by Lane from him, to sale for
the purchase money ; and which is now advertised as above stOi-
ted. It is alledged that this decree was obtained through the
^m ALABAMA.
Kirksey, et al. v. Mitchell.
fraud and collusion of Driver and Lane, and is, as complainant
believes, for more than two thousand dollars, what is due to Dri-
ver, and embraces a large amount of usurious interest.
The lands purchased of Driver and which were left undispos-
ed of when Lane removed from this State, it is alledged, were
abundantly sufficient to pay off the demands of the former, with
costs and charges, without recourse to the eighty acres of which
the complainant is in possession.
It is then alledged that Lane absconded from this State, in
1839, and is now believed to be a citizen of Texas ; that Driver
resides in the State of Mississippi,bothofwhomitisprayedmay
be made defendants to the bill. The complainant further prays,
that the Register of the Chancery Court may be decreed to sell
the lands embraced by the decree referred to, in half quarter sec-
tions, that it may command a lair price ; that he may be enjoin-
ed from selling the land embraced by the complainant's purchase
until all the other lands directed to be sold shall have been dis-
posed of, and if these shall be sufficient to satisfy the demand of
Driver, then the injunction be made perpetual. And upon final
hearing the title of Driver and Lane may be divested, and vested
in the complainant, pursuant to the bond of the latter for title.
Lastly that the decree in favor of Driver against Lane, if ascer-
tained to be usurious, may be opened and corrected, and that
such other and further relief as may be proper, be granted.
Upon the coming in of the answer of the defendant. Driver,
the injunction was dissolved, on motion, and the bill continued as
an original. v
The defendant. Driver, in his answer, admits that he sold seve-
ral tracts of land to his co-defendant. Lane, and executed his
bond conditioned to make him titles when the purchase money
was paid. Further, that the eighty acres claimed by the com-
plaipant, were embraced by the sale to Lane, but respondent was
not informed of his purchase until his bill was filed.
Respondent admits that he obtained a decree as alledged in the
bill, for four thousand dollars, but denies that it was obtained by
fraud, or other unjust means, or for a greater amount than is re-
ally due him. He denies that decree is swelled by including usu-
rious interest, and concludes with a demurrer, pursuant to the
statute.
In August, 1842, a supplemental bill was filed by the com-
JUNE TERM, 1845. 405
Kirksey, et al. v. Mitchell
plainant, reciting the substance of the original bill, and stating
that since the decree was rendered in Driver's favor, all the lands
which were ordered to be sold, except the half quarter claimed
by the complainant, and the same quantity, to wit, the west half of
north east quarter of section twenty-seven, in township sixteen
m range six east, had been sole under the decree. This latter
tract had been previously purchased of Lane by Robert W. Ber-
ry, for which the latter paid six hundred dollars. After the com-
plainant's bill was filed. Berry exhibited his bill, and in like man-
ner obtained an injunction.
It is also alledged, that after the decree in favor of Driver was
obtained, and before the sale of the land under the same, Driver
sold all his interest in the decree to Isaac Kirksey, who then un-
dertook the sale of the lands. Previous to his purchase, and af-
ter the removal of Lane, Kirksey took possession and rented out
much of the land, for a sum amounting to five or six hundred dol-
lars— all which should be applied in extinguishment of the equita-
ble lien of Driver, §9 as to relieve the complainant. When Kirk-
sey was about making the purchase of Driver, he came to com-
plainant to borrow money to enable him to consummate it, say-
ing he would satisfy the decree from the other lands, excluding that
claimed by the complainant, and that the latter would be thereby
protected. Under the impression that such would be the result,
the complainant lent him three hundred dollars, no part of which
has ever been refunded.
Further, that Driver and Kirksey have confederated to bring
the complainant's land to sale, and to relieve the half quarter pur-
chased by Berry from the operation of the decree. Driver has
been fully paid oflfthe sum due him from Lane; that Berry has
paid to him two hundred dollars, (which should be entered as a
credit upon Driver's lien,) in consideration of which Driver and
Kirksey are to exempt his land from sale, and cause the complain-
ant's land to be sold. That if Kirksey would credit the decree of
Driver with " rents and profits," received by him, the sum paid
or to be paid by Berry, and the amount for which the lands sold,
the decree would be satisfied in full ; but this he refuses to do.
The bill makes Lane, Driver, Kirksey and Berry defendants,
and prays that an account be taken of the balance due on the
decree of the « rents and profits" received by Kirksey, and the
amount paid by Berry; and if any thing more be due on the de^ "
406 ^ ALABAMA.
Kirksey, et al. v. Mitchell.
cree obtained by Driver, that Berry may contribute with com-
plainant to discharge the same "pro rata: And upon the com-
plainant's bringing into Court his proposition, of the balance due,
then the bill prays that all title to the plaintiff's land may be di-
vested out of Driver, Lane and Kirksey. Further, that an in-
junction may be awarded to restrain a sale of the same, until the
further order of the Court. An injunction was accordingly or-
dered and issued.
' Kirksey answered, that he has no knowledge of the "transac-
tions stated in the original and supplemental bills, as between the
complainant and the other defendants," but so far as they affect
him, he insists that the complainant be put to strict proof. It is
true, the respondent " purchased of Driver the benefit of his de-
cree" against Lane, before the lands were sold, and that they
were afterwards disposed of by the Register, pursuant to the de-
cree. As to his taking possession before the sale, respondent
states that he held a deed in trust executed by Lane to him as
cestui que trust; the lands were sold by the trustee and purchas-
ed by respondent; thereupon, with the exception of one quarter
section, (which was not embraced by the sale,) they were con-
veyed to him. In virtue of that purchase, and not previously,
the respondent took possession of, and rented a small part of them
— not being able thus to dispose of the residue. The aggregate
sum agreed to be paid for rent, would not, it is believed, exceed
four hundred dollars ; but be it more or less, he is entitled to re-
tain it as his own, without being required to account to any one.
Respondent denies that he made to the complainant any such
promises as he represents, in respect to the exemption of his
lands from Driver's decree, and making the other lands yield a
sufficient sum to satisfy it, or that he undertook to save him harm-
less. As for the money borrowed, the respondent denies that the
loan was influenced by any such inducement as complainant in-
timates ; he gave his note for the return of the same, and ex-
pects to refund it « in due time."
If respondent purchased the lands at a low price, it was at a
fair sale, where he was the highest bidder. He admits that he
agreed that Berry's land should not be sold, but denies that there
ever has been such an agreement in respect to the complainant's
land. Respondent has no knowledge of any payment having
been made to Driver towards the .extinguishment of the decree ;
JUNE TERM, 1845: 407
Kirksey, et al. v. Mitchell.
he refuses to allow the rents to go towards its discharge because
they were his own ; and he refuses to alfow a credit for any thing
on Berry's account, because he has received nothing from him ;
nor does he know that Driver has received anything, but if. he
has, it cannot be admitted that the complainant is entitled to the
benefit of it. He also embraces in his answer a demurrer to the
bill.
Berry, in his answer, denies all knowledge of a combination
between Driver and Kirksey to exempt his lands from a lien for
the purchase money. He admits his purchase as charged in the
bill. On the 20th March, 1839, and before the transfer from Dri-
ver to Kirksey, of the interest of the former in the decree, respon-
dent agreed with Driver, to pay and advance to him two hun-
dred dollars, over and above the sum which he (respondent) had
paid Lane ; in consideration whereof Driver was to execute ti-
tles to Lane for his benefit, and discharge his land from the ope-'
ration of the decree. The two hundred dollars were paid, un-
der a fair and bona fide contract, not to affect the interest of any
one else, but merely to obtain Driver's relinquishment. This ar-
rangement respondent was authorized to make ; especially as he
had previously paid to Lane for his purchase, six hundred dol-
lars, the full value of the land.
Testimony was taken at the instance of both parties, but it is
not deemed necessary to recite the proof here.
The Chancellor was of opinion that Kirksey was not chargea-
ble with the rents in this suit ; that if he received the lands as a
purchaser at the trust sale, he was entitled to retain them, and if
he received them as a wrong doer they must be recovered in
« another /orwrn." But as Driver had released Berry's land from
his lien, in consideration of two hundred dollars paid him, he
could not throw a heavier responsibility upon the complainant,
who stood in the same predicament. Thereupon it was referred
to the master to estimate and report how much money should be
paid by the complainant to make his contribution equal to that
accepted from Berry ; upon the payment of that sum by the com-
plainant within thirty days, the injunction was made perpetual.
Should the complainant fail to pay within that time, the bill was
to be dismissed ; and in any event the bill as to Berry was dis-
missed at complainant's costs. . ; -
40§ ALABAMA.
Kirksey, et al. v. Mitchell.
T. D. Clarke and S. F. Rice for Kirksey and Driver who
alone assigned errors, made the following points: 1. The bills
contained no equity and should have been dismissed. [Abercrom-
bie V. Knox, et al. 3 Ala. Rep. 728.]
2. The lien of the vendor of lands exists against the vendee
having an equitable title. [2 Story's Eq. 480 ; 5 Ala. Rep. 397.]
The complainant and Berry stood in the same predicament with
Lane, and as the latter might have stipulated with Driver to ex-
empt any part of the land from his lien, and if he had retained the
equitable title. Driver might have proceeded against a part, for
the purpose of making his lien available, so it was competent for
Driver and Berry to make an arrangement which would have
that effect.
3. The bill does not alledge that all the lands were purchased
at the same time by Lane, and it cannot be intended that the pur-
chase was joint. This being the case, there is no pretence for
adjudging contribution, as it respects Berry's land, to aid the com-
plainant.
4. The doctrine of apportionment, or contribution, where there
is a mortgage in fact, does not apply to a case like the present.
If the complainant's land should be sold instead of Berry's, he
could not call upon the latter to contribute, and this is a fair test.
[1 Story's Eq. 461, and note 1, 462 ; 1 Johns. Ch. Rep. 409, 415,
425.]
5. If the two hundred dollars paid by Berry to Driver is to be
credited upon the decree, Driver to that extent must refund to
Kirksey, and of course is an indispensable party. The decree is
erroneous because he was not brought in by the service of a sub-
poena, or publication.
6. There was no proof as against Driver and Kirksey to show
the payment of two hundred dollars to the former by Berry ; the
answer of the latter was no evidence against his co-defendants.
If there was proof to this point, it is not perceived what benefit
the complainant could derive from it. Besides, the equities as
between the complainant and Berry cannot affect Kirksey. [3
Ala. Rep. 728.]
W. P. Chilton and L. E. Parsons,' for the defendant, argued,
that the lands sold by Driver to Lane, were charged with a gene-
ral lien ; each part ought to bear no more than its due proportion
JUNE TERM, 1845. 409
Kirksey, et al. v. Mitchell.
of the charge, and equity will compel each party who becomes a
sub-purchaser to contribute rateably. [Stephens v. Cooper, 1
Johns. Ch. Rep. 425.] Berry and the complainant stand in equali
jure, and equity in such case will decree contribution. [Duprey
V. Johnson, 1 Bibb's Rep. 562 ; Peck v. Ellis, 2 Johns. Ch. Rep.
131 ; Martin v. Lundie, 6 Ala. Rep. 429 ; 1 Dess. Rep. 500, 542;
1 Rand. Rep. 328 ; 2 Id. 384.] ...
When a mortgage embraces several pieces of Land, and there
are several purchasers, each one shall contribute, according to
the value of his interest at the time the mortgage was executed.
See as to Driver's lien, 15 Ves. Rep. 29 ; 4, Wheat. Rep. 256 ;
7 Id. 46 ; 5 Porter's Rep. 542 ; 3 Ala. Rep. 302.] Kirksey does
not occupy a more favorable situation than Driver, and cannot
enforce the lien to a greater extent than he could.
COLLIER, C. J. — It is well settled, that both the vendor and
vendee of lands, have their mutual liens, the former for the pur-
chase money due, and the latter for what he has paid, if the con-
tract is rescinded, or from any other cause the money is to be re- '
funded. [Foster v. The Trustees of the Athenaeum, 3 Ala. Rep.
302 ; Hall's Ex'r v. Click, 5 Ala. Rep. 363, and authorities there
cited ; 2 Story's Eq. 462, etpost; 1 Bibb's Rep. 313 ; 4 Id. 239 ;
4 Litt Rep. 169, 190, 196 ; 1 Id. 216 ; 3 Bibb's Rep. 183 ; 4 J.
J. Mai-sh. Rep. 169 ; 6 Monr. Rep. 199 ; 1 Mason's Rep. 212 ; 7
Wheat. Rep. 46; 9 Cow. Rep. 316.] In the present case this
rule is not controverted, but it is contended that the decree in fa-
vor of Driver, for the purchase money, must be enforced against
every distinct tract of land sold by him to Lane, according to the
value of each ; and that as this has been rendered impossible, by
the discharge of the land purchased by Berry from the lien, the
complainant's purchase must also be released upon paying a sum
bearing a like proportion to its value.
When different parcels of land are included in the same mort-
gage, aud are afterwards sold to different persons, each holding
in fee and severalty the parcel sold to himself; in such case, each
purchaser is bound to contribute to the discharge of the common
burthen, or charge, in proportion to the value which his parcel
bears to the whole included in the mortgage. [1 Story's Eq.
461.] It was accordingly held, that where six separate lots of
land were mortgaged, and the mortgagee afterwards released
52
410 ALABAMA.
Kirksey, et al. v. Mitchell.
four of the lots from the mortgage, leaving the original debt as a
charge on the others, that the two lots, (which had been transfer-
red to third persons,) were chargeable with their rateable pro-
portion of the debt and interest, according to the relative value of
. the six lots at the date of the mortgage. A creditor cannot, by
any act of his, deprive the co-debtors, or owners of lands con-
veyed by way of mortgage, of their right of contribution against
each other. [Stephens v. Cooper, 1 Johns. Ch. Rep. 423 ; see
also, Id. 409; Morrison's Adm'rs, et al. v. Beckwith, 4 Monr.
Rep. 76.]
This rule, it seems, is not confined to cases where the lien is
created by a mortgage, deed of trust, &c., but extends to the ven-
dor's lien for the purchase money ; and it has consequently been
held, that an equitable lien on lands held by several persons
should be enforced distributively against each, in proportion to
his interest in the estate. [Poston v. Ewbank, 3 J. J. Marsh.
Rep. 43; Stephens v. Cooper, 2 Johns. Ch. Rep. 430.]
It may also Jbe stated, as a well established rule in equity that
when one person has a lien upon two funds, and another a poste-
rior lien upon only one of them, the person having both liens will
be compelled first to exhaust the subject of his exclusive lien,
and will be permitted to resort to the other only for a deficiency.
[Piatt v. St. Clair's Heirs, 6 Ham. Rep. 233.] In Cheesebrough
V. Millard, 1 Johns. Ch. Rep. 409, t)ie Chancellor said, " I admit
as a principle of equity, that if a creditor has a lien on two differ-
ent parcels of land, and another creditor has a lien of a younger
date on one of those parcels only, and the prior creditor elects
to take his whole demand out of the land on which the junior has
a lien, the latter will be entitled, either to have the prior creditor
thrown upon the other fund, or to have the prior lien assigned to
him, and to receive all the aid it can afford him. This is a rule
founded in natural justice, and I believe it is recognized in every
cultivated system of jurisprudence.'' " He considers it well settled
in the English law, and cites cases to prove it. It is said in the
game case, that if a creditor exacts the whole of his demand from
one of the sureties, that surety is entitled to be substituted in his
place, and to a cession of his rights and securities, as if he were
a purchaser, either against the principal debtor or his co-sureties.
And if a prior creditor has put it out of his power to make the
cession, it seems that he will be excluded from so much of his
JUNE TERM, 1845. 411
Kirksey, et al. v. Mitchell.
demand as the'surety, or subsequent creditor might have obtain-
ed, if the cession could have been made. But if the prior credi-
tor, who has disabled himself from making the assignment, has
acted with good faith, and without a knowledge of the rights of
the -other creditor, he is not to be injured by his inability to make
the cession ; for the doctrine of " substitution rests on the basis of
mere' equity and benevolence." See also, Cullumv. Emanuel &
Gaines, et al. 1 Ala. Rep. N. S. 23 ; 1 Story's Eq. 472, et post,
and cases cited in notes ; Piatt v. Law, 9 Cranch's Rep, 458 ;
Read v. Simmons, 1 Dess. Rep. 552 ; Bank of Kentucky v.
Vance's Adm'rs, 4 Litt. Rep. 169 ; Taylor, et al. v. Porter, 7
Mass. Rep. 355.]
Let this statement of principles and citation of authorities suf-
fice to guide us to a conclusion in the present case. As between
Driver and Lane, his vendee, the former might have enforced his
equitable lien against all, or any part of the land embraced by
the sale; or he might have purchased of him one parcel for a less
sum than Lane agreed to pay him for it, and have collected the
residue of his debt from the other lands. Does a different rule
apply as between Driver and his assignee, and a purchaser from
Lane?
Driver denies any knowledge of the right set up by the com-
plainant until after his bill was filed, and his denial is not in any
manner disproved; consequently it must be taken as true. The
sale by Lane to Berry, as well as its confirmation by Driver, was
made long before the institution of this suit, and upon principles
of equity Driver should not be prejudiced. He was not bound
to inquire what disposition his vendee had made of the lands, but
might, with the assent of the latter, deal in respect to one parcel
of it, as if he was still the proprietor of the residue. The sale by '
Lane to Berry, with the subsequent assent of Driver, might be
treated as a repurchase by the latter, pro tanto.
The equitable right of the sub- vendees of land to compel the
original vendor to exert his lien for the purchase money against
the entire estate, that each separate parcel may be charged in
proportion to its value, must, like the doctrine of substitution,
have its foundation in equity and moral justice; and if the vendor
without a knowledge of the right of a derivative purchaser, has
disabled himself from thus proceeding, by an arrangement made
with his vendee, in good faith, his lien cannot be impaired.- A
412 ALABAMA.
Walker v. Hampton, et al.
rule the opposite of this, would be too severe, and in our judg-
ment cannot be supported either upon principle or authority.
Kirksey it is conceded, does not occupy a position more unfavor-
able than his assignor, and it may be admitted that every defence
that was available against the decree before its assignment may
still be made.
It is not shown by the proof, thai Kirksey took possession of
any of the lands, until after he became a purchaser at the trust
sale, under the deed executed by Lane for his benefit. His pos-
session after that time, must be regarded as the possession of
Lane, or rather as permitted by him. This is proved by the
deed, which invests the trustee with the power of sale, and the
evidence showing the execution of that power. The rents then,
received subsequent to Kirksey's possession under leases thereaf-
ter made by .him, became his own property, in virtue of the deed
and the consequent proceedings. It was clearly competent for
Lane thus to stipulate with Kirksey ; and as he himself would be
entitled to the rents, without being required to account for them to
his vendor, he might transfer the same right to another person.
See Chambers, et al. v. Mauldin, et al. 4 Ala. Rep. 477.
This view is conclusive to show, that the complainant is not
entitled to the relief which he seeks; the decree of the Chancellor
is consequently reversed, and the bill dismissed with costs.
WALKER V. HAMPTON, ET AL.
1. A sheriff who has lawfully seized slaves under an attachment is not liable
in an cuiion of trespass, if he refuse to permit the defendant to replevy
them, although a valid bond, with sufficient sureties may be tendered.
Writ of Error to the Circuit Court of St. Clair.
This action is trespass by Walker against Hampton and Che-
nault for taking and carrying away certain slaves from the pos-
JUNE TERM, 1845. 413
Walker v. Hampton, et al.
session of Walker. The cause seems to have been tried on the
general issue, as no pleas are set out in the transcript.
At the trial, the plaintiff proved his right of property in the
slaves named in the declaration, his possession of them in the
fall of the year 1843, and that one of the defendants, at the insti-
gation of the other, took the slaves from him.
The defendants then proved, that at the time of the injury
complained of, one of them, Chenault, was the sheriff of St.
Clair ; that as such sheriff, and under and by virtue of a valid
writ of attachment against the plaintiff's effects, he took and de-
tained the slaves.
The plaintiff then proved, that after this seizure, Chenault, as
sheriff, was tendered a formal and sufficient bond, with good sureties,
in order to replevy the slaves, as provided by statute ; and that
Chenault, under the advice and instigation of Hampton, refused
to accept the bond, and to return the slaves to the plaintiff's pos-
session, but kept and detained them, and refused to allow him to
replevy.
On this state of facts, the plaintiff's counsel requested the
Court to charge the jury, that if the sheriff, Chenault, refused to
receive the bond tendered, and continued to hold the slaves, then
he and every other person acting in concert with him, would be
trespassers. This was refused ; and the jury was charged, that
the failure of the sheriff to receive the bond, and his detaining
the slaves by virtue of an attachment and levy, did not amount
to a trespass, and would not sustain this action against him,
This is now assigned as error.
F. W. BowDON, for the plaintiff in error, insisted, 1, That
though a sheriff cannot be treated as a trespasser for a mere non-
feasance, yet he may be for a misfeasance, as in the case here.
[Ackenhead v. Blades, 5 Taunt. 197 ; The six carpenter's case,
8 Coke. 290; 43 Law Lib. 136; Winterbounie v. Morgan, 11
East, 305 ; Echester v. Papplewell, 1 East, 139 ; Lockrider v.
McDonald, 10 John. 253 ; Keor v. Sharp, 14 S. & R. 399 ; Hop-
kins V. Hopkins, 10 John. 379.]
2. So, if a sheriff continues in possession after the return day
of the bond, this makes him a trespasser, ah initio. [46 Law
Lib. 465; Gorgrove v. Smith, Salk. 221 : BuUer's N. P. 81.]
414 ALABAMA.
The Distributees of Mitchell v. Mitchell , Adm'r.
S. F. Rice, for the defendants in error, argued,
1. This action cannot be maintained when no trespass has
been committed, though a lawful act may, in consequence of a
subsequent unlawful act, and by relation, be a trespass : but even
in such a case, the subsequent act must be a trespass. [Water-
burg V. Lockwood, 4 Day, 257.]
2. One cannot be made a trespasser, ab initio,, by mere mis-
feasance. [Six carpenter's case, 8 Coke, 146 ; Gardner v. Camp?
bell, 15 John. 401 ; 3 Starkie's Ev. 1445.]
3. A judicial officer cannot be made liable as a trespasser, if
he has jurisdiction. Here, the sheriff, as to the taking of the bond,
is a judicial officer, and may reject or approve it, according to
his judgment. If liable at all, it is in case, for maliciously refus-
ing. [5 Mass. 547.]
GOLDTH WAITE, J We think the charge to the jury was
a correct exposition of the law of this case. The sheriff, by the
attachment, was authorised to seize the slaves, and it is not shown
that any act was subsequently done by him in relation to them,
which is unlawful. In the Six Carpenter's Case, 8 Coke, 290 ;
S. C. 43 Law Lib. 130, it is said, if the lessor distrain for his
rent, and thereupon the lessee tenders him the rent in arrears, and
requires his beasts again, and the lessor will not deliver them,
this not doing cannot make him a trespasser, ab initio.
This is precisely the present case, and shows the charge to be
correct.
Judgment affirmed.
THE DISTRIBUTEES OF MITCHELL vs.
MITCHELL'S ADM'R.
1. When either money, or property, is advanced to a child, it will prima fa-
de be an " advancement" under the statute, and must be brought into
hotchpot; but it may be shown that it was intended as a gift, and not as
JUNE TERM, 1845. 415
The Distributees of Mitchell v. Mitchell, Adm'r.
an advancement ; or unless it be of such a nature that it cannot be pre-
sumed to be an advancement, as trifling presents, money expended for
education, &c.
2. Where a father, by deed, conveyed real and personal property to two of
his minor children, declaring at the time that it was not given as an ad-
vancement, but was to be in addition to their equal share of the residue
of his estate — Held, that this was not an advancement, and that the testi-
mony was properly admitted.
3. A father kept an account with his son, upon his books, which was added
up, and at the foot of the account was written by the father, " accounted
for, as so much that he has had of my estate ; if it is over his portion, he
must pay it back to them." No question being made of this as a testa-
mentary paper — Held, that it was competent to explain the nature of the
items, and to detail a conversation the widow of the deceased had with him
in relation to it, to show, that tlie account was not a debt due from the son,
or an advancement under the statute.
4. If a father, who has expended more money upon the education of one of
his children, than the rest, wishes to make the others equal with him, by
giving hfan less of his estate, he must do so by a will ; he cannot accom-
plish it by considering the money so paid out, a debt, or an advancement
under the statute.
5. The Orphans' Court must decree to husband and wife the distributive,
share of the wife, unless it is shown that she has a separate estate in it A
Court of Chancery can alone compel him to make a settlement upon her.
6. When an issue is made up to ascertain the amount each of several distri-
butees have received from the estate, the costs of the proceeding is a joint
charge upon the estate, and cannot be taxed against those who are most
active in making objections.
7. A conveyance by the husband, to his wife, of a life estate in certain pro
perty, which conveys to her a present, vested interest, and is not testa-
mentary in its character, will not bar the widow of her dower.
Error to the Orphans' Court of Montgomery.
This was a proceeding to ascertain the share of the distributees
of the estate of Thos. J. Mitchell, who had been advanced in une-
qual proportions, by the deceased in his lifetime. The question
being, whether Thomas J. Mitchell and Theacot E. Mitchell,
had received certain property as an advancement, or as a gift, a
jury was empannelled, who found, under the charge of the Court,
that it was not an advancement, but a gift.
To prove that certain property was intended by the deceased
as a gift, and not as an advancement, they produced certain deeds
416 ALABAMA.
The Distributees of Mitchell v. Mitchell's Adm'r.
executed by the deceased, and duly recorded, viz : one dated 27th
November, 1843, conveying to Thomas J. Mitchell a negro boy,
named Joe, and one of the same date to Theacot E. Mitchell, a
mulatto boy named George. Also, a deed from the deceased to
Thomas and Theacot jointly, dated 27th October, 1843, in con-
sideration of a natural love and affection, certain tracts of land,
"which are described, including two mills, a dwelling house, all the
furniture thereto belonging, and the stock of hogs, cows and mules,
and the farming tools of every description, which may be on the
premises, "Provided, that should the said Thomas, or Theacot,
die during their minority, or without an heir, the surviving brother
shall heir the whole estate of the deceased, conveyed by this deed
of gift, reserving unto my wife, should she survive me, all and
singular, the rights, benefits, rents, and privileges of the afore-
mentioned premises, during the term of her natural life."
The value of the property thus conveyed, being in evidence,
the grantees proved, that at the time of the execution of these
deeds, the deceased said, the property therein mentioned, was
given in addition to the portion to which they would be entitled
on distribution of his estate, on account of their youth, inexperi-
ence, and want of education; and he wished them, on a division
of the residue of his property, to have an equal share with the
rest of his children. To the introduction of this testimony, the
the other distributees excepted, but the Court overruled the ob-
jection, and the jury found, that the said property was not an ad-
vancement, but an extra gift.
The advancement to Martha M. Griffin, daughter of the de-
ceased, and wife of B. S. Griffin, was next submitted to the jury,
and charges from the books of the intestate, debiting her with
the sum of $2,650, as part of her portion of the estate, was read
to the jury. The administrator then proposed to read a note, in
these words: "One day after date, I promise to pay Thomas
Mitchell eleven hundred and fifty dollars, value rec'd, this —
day of . Martha M. Griffin,
By B. S. Griffin."
This was offered, not as evidence of an advancement, but of
an indebtedness of Mrs. Griffin to the intestate. To the intro-
duction of this she objected, on the ground that the Orphans' Court
had no jurisdiction of the matter in controversy, and that it could
JUNE TERM, 1&^5.- 41*?
The Distributees of Mitchell V. Mitchell, Adm'r.
not be received on this issue, which jthe Court . overruled, .afid.
thereupon she pleaded non est facturrir,': ['^:\'^^^j^'';-^^'-':^^:k^^ .
The administrator then introduced a witness, who testified-, ■
that B..S. Griffin, was the husband of Martha, that they lived
together, that he was insolvent, but that she had a separate es-
tate. Another note was produced for fourteen dollars, signed B.
S. Griffin, Martha Griffin, payable to witness, the note, and .
signatures, being all in the hand writing ofB. S. Griffin, and had .;
never been paid. The witness proved that he had furnished B.
S. Griffin, with some lumber, some of which was charged to
Mrs. Griffin, and some to B. S. Griffin. Witness had seen him
purchase groceries in Wetumpka, for which he paid cash, which '. .
were carried home in his waggon,, driven, by a, negro man be*,,/
longing to his wife. '^•, > "' ;.':^ ' -S:f■^'•^';^^«:y^"^^^■■ ^:"^^
The administrator also produce(J an irisirument iti \vritihg, ptir- ' ]
porting to be between Mrs. Griffin and Totty & Beal, to do cer-_
tain work in the town of Wetumpka, whicb was sighed by B. S.
Griffin, as attorney of his wife, in his own handwriting. That
the work was done under the superintendence of the husband. /
Mirs, Griffin lived a mile or two from Wetumpka. There was
no proof that Mrs. Griffin knew any thing . of these transactions,
or ever saw either of the notes.
This being all the evidence to prove the execution of the note, ^•
Mrs. Griffin asked the Court to exclude it from the jury, on the '^^^
ground, that it was not sufficient in law to warrant a recovery '•:
on the note. The Court overruled the objection, and suffered -.
the testimony to go to the jury, as circumstances, from which they •
might infer the agency of B. S. Griffin, for his wife, to which she '
excepted. s : : • ; .H'"' ■''\V^
She further moved the Court to charge, that upon this testftno- '
ny, the plaintiff could not recover upon the note sued on ; which, ,
the Court refused, and to which' she also excepted.
She further moved the Court to charge, that unless it was prov-
ed that she sanctioned, authorized, or knew of the acts of her bus-
band, assuming to act as her agent, the testimony offered would
not afford grounds for a recovery in this action ; which the Court .
refused, and charged, they were circumstances from which they.':,
might infer the agency, to which she also excepted.
The advancements to Columbus W. Mitchell, were next subr .
53 V:-'
418 ALABAMA.
The Distributees of Mitchell v. Mitchell, Adm'r.
mitted to the jury, and entries from the books of the intestate
were read as follows :
C. W. Mitchell,
To Thos. Mitchell, Dr.
1836. To your expenses at College, $920 00 .
Cash at sundry times, 855 00
Cash " ^. .<,;»,; v. . , . 380 00
Do. for sulky and horse, . . . .■.',..«■..,. ... 420 00
Do. . .:V^ .^V;.'. iv. 117 00
1837. Cash atSprmgs and Tuscaloosa, 110 00
« received by you of Gerald, ......... 425 00
« per order to Gerald, , . 800 00
1838. " per self, . . . ,;. ,. . . 200 00
1840. " paid hire of negroes,, .■•,:,-;/-;';•;*.. . 205 00
1842, " Jesse, Minerva and Betty, negroes,. . . 1800 00
« paid estate of J. Thrasher, ......... 2400 00
^632 00
; ' Accounted for, as so much that he has received of his portion
of my estate. If it is over his portion, he must pay it back to
them. All of which w^as entered in his account book, in his hand
writing, and C. Mitchell admitted that he had received the full
amount charged, and more. He then offered his mother, widow
of the intestate, Emd offered to prove by her, that many of the
charges in the account, were for expenses at College, and at
Montgomery reading law, and expenses whilst on a visit to the
Springs, and New Orleans, whilst in his minority. Also, that
his mother remonstrated with the deceased,' against holding him
liable for the charges in the book, as he nfiight have prevented
his son from incurring these expenditures, w'hich intestate admit-
ted. And also, his declaration, in connection with these remarks,
that he had made these charges, that his family might know he
had made money, and what had become of it. To the admis-
sion of this testimony of Mrs. Mitchell the other distributees, ex-
cept the two youngest, excepted.
The jury returned their verdict, that John W. Mitchell had re-
ceived as an advance $2,200; McMorris and wife, $2,100; B.
S. Griffin and wife, $2,650, by way of advancement, and fifteen
hundred and thirty dollars ninety cents, indebted to the estate ;
JUNE TERM, 1845. 419
The Distributees of Mitchell v. Mitchell, Adm'r.
Columbus W. Mitchell, $4,825 27; Cook and wife^ $2,585.
Thereupon the Court decreed, that they had received these res-
pective sums as an advancement, and appointed commissioners
to distribute the estate, giving to the widow one fifth part of the
slaves.
From this decree this writ is prosecuted, and the distributees
aggrieved by the decree of the Court, now assign for error—
1. ,The Court erred in permitting testimony to explain the
intention of the grantor, in the conveyances to the minor heirs.
2. In entertaining jurisdiction for the recovery of the note of
Mrs. Griffin, in the testimony given, and the charges given, and
refused.
3. In decreeing the amount of the note of Mrs Griffin, to be
deducted from her portion of the estate.
4. In decreeing the distributive portion of Mrs. Griffin to her,,
and her husband.
5. In decreeing one-fifth part of the value of the slaves to Mary
Mitchell.
6. 'In-'taxing B. S. Griffin, and wife, with the costs of the issue
to determine the advancement made to Mrs. Griffin.
7. In taxing Griffin and wife, and Cook and wife, with the
costs of the issue to determine the advancement made to the
minors.
8. In the admission of the testimony of Mary Mitchell.
9. In not taxing C. Mitchell with the costs of the issue in his
case. ,
A. Martin for the plaintiff" in error, cited 7 Porter, 437 ; 8 Id.
176 ; 1 Camp. 43, note.
ORMOND, J. — The idea of requiring children who had been
advanced, during the lifetime of their father, to bring the money
or property thus received into hotchpot, when he died intestate,
appears to have been obtained in England, from the custom of
the city of London, and incorporated in the statute of distribu-
tions of 22 and 23 Chas. 1st, as stated by Lord Raymond, in Ed-
wards V. Freeman, 2 P. Will. 449 ; see also, Holt v. Federick,
lb. 356, and Elliott v. Collier, 1 Ves. sen'r. 17.
The custom of London, which was referred to, is, that which
420 ALABAMA.
The Distributees of Mitchell v. Mitchell, Adm'r.
divided the freeman's personal estate into three pai-ts, one of
which, after his funeral expenses were paid, went to the widow,
one to his children unadvanced by him, in his lifetime, and the
other third, called the dead man's share, he might dispose of by
will. [2 Bac. Ab. Customs of London, 249, c] And any of the
children who had not been fully advanced in the lifetime of the
parent, could by bringing the sum so received into hotchpot, share
equally with the others in the orphanage part.
Our statute upon this subject is to the following effect : "When
any of the children of a person dying intestate, shall have re-
ceived from such intestate, in his, or her lifetime, any real or per-
sonal estate, by way of advancement, and shall choose to come in
to the partition of the estate with the other parceners, such ad-
vancement, both of real and personal estate, or the value thereof
shall be brought into hotchpot, with the whole estate, real and
personal, descended ; and such party bringing such advancement
into hotchpot as aforesaid, shall thereupon be entitled to his, her,
or their portion of the whole estate so descended, both real and
personal." [Clay's Dig. 197, § 25.]
The question is, what shall constitute an advancement ? By
the custom of London, it appears it was not every gift that con-
stituted an advancement. It must be a marriage portion, or
« something to set up in the world with." [Elliott v. Collier, 3
Atk. 528.] Presents by the father of small sums, unless express-
ly given by way of advancement, are not to be brought into
hotchpot. [Morris v. Borrough, 1 Atk. 403 ; Elliott v. Collier, 3
Atk. 527.] Neither is money laid out in education or in travel-
ling. [Pusey V. Debouverie, 3 P. Will. 317, in note.] The cus-
tom was confined alone to personal property, and a gift of land
though expressly intended as an advancement, would be no bar
to the orphanage share. [Cevill v. Rich, 1 Vernon, 181.] The
father could also, by an act in his life, give away any portion of
his personal estate, to one of his children, provided he divested
himself of all property in it ; but if it was done in extremis, and
could be considered as a testamentary act, or if any power was
reserved over the subject of the gift, it was considered a fraud up-
on the custom, as it regarded the other children. [Tompkyns v.
Ladbroke,2 Vesey,scnr. 591 ; Elliott v. Collier, 1 Id. 15.]
This examination has been made of the custom of London, as
it was the original of that portion of the English statute of distri-
JUNE TERM, 1845. 421
The Distributees of Mitchell v. Mitchell, Adm'r.
butions, requiring advancements to be brought into Ao^c/ipo^, which
was the prototype of ours, and is therefore proper to be consider-
ed as an aid, in coming to a correct conclusion, as to its true in-
tent and meaning. Our opinion therefore is, that when either mo-
ney, or property, is advanced to a child, it will prima facie be an
advancement under the statute, and must be brought . into hotch-
pot; but, that it may be shown that it was intended as a gift, and
not as an advancement. Or, unless it be of such a nature, that it
cannot be presumed to be an advancement, as trifling presents,
money expended for education, &c. That it lays upon the chil-
dren to repel the presumption which the statute creates, is shown
in the strong case of Gilbert v. Wetherell, 2 Simons & Stu. 254.
The father had lent his son £10,000, to commence business, and
the. son being unfortunate in trade, the father on his death-bed,
directed the note which had been executed for the debt to be
burned. The Court held, this was merely an extinguishment of
the debt, but did not show that it was not intended as an advance-
ment. The theory of the statute is, that every parent wishes to
do equal justice to his children, and that money, or property, giv-
en to them during his hfe, is, and was intended, as a part of their
portion, unless he manifests the contrary at the time, or unless
such a presumption arises from the nature of the gift, or expendi-
ture, of which examples have already been given.
To apply this rule to the facts of this case. At the time of
the execution of the deeds to the two minors, Thomas andThweatt,
the father expressed his intention, that it was not given to them
as an advancement of the portion of his estate, they would be
entitled to it his death, but that it was in addition to their equal
share of the residue, in consequence of their youth, inexperience,
and want of education, and upon the principles above laid
down, was clearly not an advancement, within the meaning of
the statute.
The case of Columbus W. Mitchell is one of more difficulty.
It appears that the intestate kept an account against his son Co-
lumbus, which is added up on the book, and amounts to $8,632,
at the close of which is this entry; " Accounted for as so much,
that he has had of his portion of my estate, if it is over his por-
tion he must pay it back to them-" No question arises upon
this instrument, as a testamentary paper, nor does it appear to
have been proved as such- It appears to have been offered as
423 ALABAMA.
The Distributees of Mitchell v. Mitchell, Adm'r.
evidence of an advancement, or that he vi'as indabted to that
amount, to the estate of his father. Some of the items of which
the account is composed, are for expenses at College, whilst tra-
velling, and reading law. It is very certain that some of these
items could not be considered as an advancement under the sta-
tute, being expenditures which it was the duty of the parent to
make, or at least of the propriety of making which he was the
sole judge. It is true, a parent who had expended more upon
the education of one of his children, than upon the rest, might
think it his duty to make the others equal with him, by giving
him proportionably less of his estate, but he could onJy accom-
plish this by a will ; it could not be effected by considering it an
advancement, as is shown by the cases cited. How far the rela-
tion of debtor, and creditor, could exist between the father, and
son, we have not the means of determining; as to some of the
items of the account it is obvious it could not. Those for exam-
ple, relating to expenditures at College, and others no doubt be-
long to the same category.
The question which it appears was intended to be presented to
this Court for revision, is, not the law arising out of this account,
and written memorandum of the father, but whether the parol
testimony of the widow of the deceased was admissible. We
have already remarked, that this memorandum and account was
not treated in the Court below as a testamentary paper, nor was
any question made in the Court below in reference to it as such,
but it appears to have been offered in evidence, as proof that the
monies there enumerated, was a debt due from the son, or an ad-
vance to him. So considered we can see no objection to the
parol evidence. It merely went to show, that as to many of the
items, the relation of debtor and creditor could not exist between
them, as the witness states, that the expenditures were made dur-
ing the son's minority, whilst at College, and reading law ; or at
the Springs and at Tuscaloosa, and other places in quest of plea-
sure— that she remonstrated with her husband, for these reasons,
and because he could have prevented these expenditures, against
his charging his son with them. This was certainly competent
testimony to establish, that these items of the account did not
constitute a debt due from the son, or an advancement under the
statute from the father, and for this purpose were properly ad-
mitted.
JUNE TERM, 1845. 423
The Distributees of Mitchell v. Mitchell's Adm'r.
We can perceive no objection whatever to the ascertainment
by the jury, of the debt claimed of J^rs. Griffin, on the note exe-
cuted by her husband. Indeed, whether it was considered a debt
or an advancement, was wholly unimportant, if she was charge-
able with it, as in either, aspect there was a surplus coming to
her, of her distributive share; so that in this case the effect of her
owing a debt to the estate, was precisely the same, as if she had
been advanced by that amount.
The charge moved for, by her, upon the evidence offered on
the plea of non est factum, was equivalent to a demurrer to the
evidence, and should have been given, as asked. Conceding all
the facts to be true as stated by the witnesses, and drawing all the
inferences from them which could properly be drawn, there is no-
thing to show that the husband had any authority to sign the note
as her agent, or that he had a general authority to act as such,
she having, as it appears, a separate estate. No fact is proved
establishing her concurrence with, consent to, 6r knowledge of,
any of the acts said to have been done by him, in her name, and
she was therefore entitled to a verdict upon the evidence.
It does not appear from any thing in the record, that the Court
erred in decreeing the distributive share of Mrs. Griffin, jointly to
her and her husband. It is, to be sure, stated in the record, that
she had a separate estate, and that her husband was insolvent,
but how this estate was created, or in what it consisted, is not
shown ; and we cannot from this general expression understand,
that she had a separate estate in the distributive share of her fa-
ther's estate in the hands of the administrator. Nor is it easy to
comprehend how such an estate could be created, unless by the
act of the husband. In the absence of proof of such an estate ex-
isting in her, the Orphans' Court had no option but to decree in
favor of the marital rights of the husband; a Court of Chancery
could alone compel him to make a settlement upon her.
The Court erred in charging the costs of the trial of the issues
made up, to ascertain the amount of the several advancements
upon the particular distributees, who appear to have been most
active in contesting the lacts. The objections, though made by
a part of the distributees, were for the benefit of all, and the costs
accruing should have been a joint charge upon the estate.
There is nothing in the record from which it can be determin-
ed, that it was not proper to decree one-fifth part of the slaves to
424 ALABAMA.
Chaney, Ex parte.
the widow. In the absence of a provision made for her by will,
one-fifth part is the smallest portion to which she is entitled by
statute, and that there was no will is evident from the entire re-
cord. The deed executed by the intestate, giving her a life es-
tate in certain land, is not shown to have been testamentary in
its character, but conveyed to her a present vested interest, sub-
ject to the contingency of her surviving him.
From this examination it appears, that the only error upon the
record, is the refusal to charge the jury as requested by Mrs.
Griffin, and in charging her with the amount of the note as a debt
due from her to the estate ; and also, in not taxing the costs of the
issues, to ascertain the amount of the several advancements
against the estate generally. In all other respects, the decree of
the Orphans' Court is affirmed, and the cause remanded, that it
may be reformed in these particulars.
CHANEY, EX PARTE.
1. The fortieth section of the 8th chapter of the Penal Code, which declares
that no person charged with an offence capitally punished, shall, as a mat*
' ter of right, be admitted to bail when he is not tried at the term of the
Court at which he was first triable, if the failure to try proceeded from the
non-attendance of the State's witnesses, " Where an affidavit is made,
satisfactorily accounting for their absence," does not make it imperative
Upon this or any other Court, to admit the accused to bail, because such an
affidavit was not made and acted on by the Court in which the indictment
is pending; but it is competent for the Judge or Court which directs the
prisoner to be brought up on habeas corpus, to allow the affidavit to be made.
2. It is competent for tliis Court, under the constitutional provision, which
gives it " a general superintendence and control of inferior jurisdictions,"
to award a writ of habeas corpus upon the refusal of a Judge of tlie Circuit
Court, or Chancellor sitting in vacation, or in term time, and to hear and
decide upon the application for the prisoner's release, or adopt such course
of proceeding as would make its control complete.
JUNE TERM, 1845. 485
Chaney, ex parte.
3. It i? allowable for a Judge of the Circuit Court, or Chancellor, in vacation)
to award a writ of habeas corpus, in a capital case, though the accused was,
by order made in term time, committed to jail.
The petitioner was indicted for murder at the February term
of the Circuit Court of Mobile, holden the present year, and up-
on his application, the venue was changed to the Circuit Court of
Clarke, and the cause transferred accordingly. At the last term
of the Court holden for Clarke, the Solicitor was called on to say
whether he was ready to proceed with the trial of the petitioner,
and answered in the negative. Thereupon he moved to conti-
nue the case until the next term, and in support of his motion,
read to the Court a written statement, setting forth the names of
several witnesses ; the most of whom had been summoned, were
known to be material, but not in attendance, though it was be-
lieved their presence could be procured at the next term. This
statement was not verified-, nor " required to be sworn to by the
Court, or the counsel for the accused." The petititioner's coun-
sel announced his readiness for trial, and opposed a continuance,
but they were overruled by the Court, and the cause continued.
Afterwards, on the last day of the term, « the prisoner, at the re-
quest of his counsel, was brought into Court, when they submit-
ted a motion to admit the prisoner to bail, in conformity with the
Constitution and Laws of this State ; which motion being ar-
gued by counsel, and fully considered by the Court, was refused,
and the prisoner remanded to jail. But the Court, considering
the questions of law arising on said motion as novel and difficult,
and at the request of the prisoner's counsel, referred the same to
the Supreme Court for its revision,"
The petitioner has made known the foregoing facts to this
Ccurt by the production of the record, and prays that he may be
brought up on habeas corpus ; or that such proceedings may be
had as shall result in his release from imprisonment, upon enter-
ing into a recognizance with sureties ; conditioned for his ap-
pearance at the next term of the Circuit Court of Clarke.
J. Gayle and A. F. Hopkins for petitioner.
Attorney-General for the State.
COLLIER, C. J. — It is conceded that it was competent for
54
426 ALABAMA.
Chaney, ex parte.
the Court, in its discretion, to continue this cause at the instance
of the State, upon the statement made by the Solicitor ; and
that whether the discretion was wisely exercised or not, the de-
cision upon the continuance could not be revised. The only
question presented, is, whether the facts disclosed in the record
entitle the petitioner to be discharged on bail ; and the solution
of this question depends upon the construction of the fortieth sec-
tion of the eighth chapter of the « Penal Code." [Clay's Dig.
444.] This section declares that " No person charged with the
commission of an offence capitally punished, shall be admitted to
bail as a matter of right, when he is not tried at the first term of
the Court, at which he was properly triable, if the failure to try
his case proceeded from the non-attendance of the State's wit-
nesses, where an affidavit is made satisfactorily accounting for
their absence," &c.
This provision very strongly implies that one charged with an
offence of the grade to which it refers, shall be discharged on
bail, if not tried at the first term when he is triable, in conse-
quence of the non-attendance of the State's witnesses ; unless
their absence is accounted for by affidavit ; and when consider-
ed in reference to the pre-existing enactments of 1807 and 1827,
this implication is as conclusive as a positive declaration. These
latter enactments made it imperative upon the Court to discharge
the prisoner on bail,, upon the last day of the term, where the af-
fidavit was not made. [Ex parte Simonton, 9 Porter's Reports,
390.]
The act in question was intended, and did very essentially
modify the two preceding statutes, not only in the particular in
which we have noticed them, but also in other respects, While
the acts of 1807 and 1827 entitled the prisoner to bail, on the last
day of the Court, where he was not tried at the first term, in all
cases, unless the continuance was the consequence of the absence
of the witnesses for the prosecution, the modification merely de-
clares that he shall not be admitted to bail, as a matter of right,
on account of the absence of witnesses, where the affidavit is
made. But no time is prescribed within which the affidavit is
to be made, and there is nothing in the language employed, indi-
cating that it may not be made after the adjournment of the Court,
and we cannot doubt but such a statement may be verified any
time before the prisoner is actually discharged on bail.
JUNE TERM, 1845. 427
Chaney, ex parte.
We are by no means certain that it can be intended from the
transcript before us, that the affidavit was not made upon the ap-
plication for the prisoner's discharge ; but it is needless to consi-
der this question, as it is perfectly clear that the order of refer-
ence by the Circuit Judge does not authorize this Court to revise
his judgment as on appeal. The statute, which gives us juris-
diction of questions referred as novel and difficult, docs not con-
fer the power to adjudicate points thus referred, until the cause
is disposed of in the primary Court. But in virtue of the consti-
tutional provision which gives us " a general superintendence
and control of inferior jurisdictions," it is competent for this
Court, upon the refusal of a Judge of the Circuit Court or Chan-
cellor, sitting in term time or vacation, to award a writ of habeas
corpus, and hear and decide upon the application for the prison-
er's release, or adopt such course of proceeding as would make
its control complete. We might, upon the showing made, if we
judged it a proper case, direct the petitioner to be brought here,
but this would afford him no legal advantage which he cannot
otherwise obtain ; as the provision of the " Penal Code'' would
make it our duty to receive the affidavit (should one be tendered)
and remand the prisoner. If a habeas corpus were issued re-
turnable to this Court, it would occasion an unnecessary accu-
mulation of costs, and increase the facility of escape. We there-
fore think it best to deny the writ ; and that the prisoner may
not be prejudiced, would again remark, that it is competent for
the Judge of the Circuit Court, or Chancellor, notwithstanding
the decision at the Circuit, to issue a habeas corpus to bring be-
fore him the body of the prisoner, and if tKe affidavit contem-
plated, is not made, to admit him to bail. Upon an application,
duly made, to either of the judicial officers we have named, they
will award the writ, and dispose of the prisoner as we have indi-
cated, would be proper.
428 ALABAMA.
Lattimore v. Williams.
LATTIMORE v. WILLIAMS, ET AL.
1. Where the claim of a creditor is not already barred by the general statute
of non claim, at the time when the estate of his debtor is declared insol-
vent, he may file his claim at any time within six months after the declara-
tion of insolvency, and it will not be affected by his omission to present it
within eighteen months after grant of administration.
Error to the Orphans' Court of Montgomery.
"This is a proceeding in the Orphans' Court, between a credi-
tor of an estate and its executors, with reference to the liability of
the estate, and the right of the creditor to come in for distribu-
tion. It is not stated that the proceedings are with reference to
the insolvency of the estate, but this may be inferred, as other-
wise the Court has no jurisdiction.
It appears that an issue was made up and submitted to a jury,
which found for the defendant. On the trial, the creditor, Latti-
more, proved the existence and loss of the note sought to be es-
tablished as a claim ; that letters testamentary were granted
about seventeen months before the estate was declared insolvent,
during all which time there was no presentation of the claim.
Afterwards, within six months from the time the estate was de-
clared insolvent, but more than eighteen months from the grant
of administration, the claim was filed in the clerk's office of the
Orphans' Court of Montgomery county.
On this evidence, the Court charged the jury, that unless the
claim in question was presented to the executors, or filed with
the clerk, within eighteen months after the grant of administration
it was barred by the statute, and the plaintiff could not recover.
This was excepted to by the plaintiff, and is now assigned as
error.
Belser, for the plaintiff in error, ^ited Clay's Dig. 195, § 15.
Elmore, contra.
'■ %
JUNE TERM, 1845. 429
Lattimore v. Williams.
GOLDTH WAITE, J.— The general scope and object of the
act of 1843, providing for the settlement of insolvent estates, is to
withdrav^r the estate from the control of the administrator, after
the declaration of insolvency, and to permit the creditors be-
tween themselves to contest their several demands. It wrould
therefore seem, that a presentation to the administrator, after
this proceeding, would be entirely useless. The 14th section of
the act is predicated on this idea, and provides, that when the es-
tate has been declared insolvent, it shall be unnecessary to pre-
sent the claims against it to the administrator ; but that they may
be filed with the clerk, without any such presentment: Provided^
such claims are not [then] already barred by the statute of non-
claim. As the administrator, and other creditors of the estate,
are permitted to contest the claims presented against the estate,
when filed in the clerk's office, until the expiration of nine months
from the period when the estate was declared insolvent ; and as
every claim must he filed within six months, from the sanie period,
it would seem as if the introduction of the latter bar was intend-
ed to prevent the operation of the general statute of non-claim, if
that had not attached when the estate was declared insolvent. In
the recent case of Hollinger v. HoUey, (at this term,) we held that
the omission to file the claim within six months created an abso-
lute bar. This being the necessary construction of the statute,
it cannot, we think, be inferred that the intention was, that one
creditor should be allowed a shorter or longer period than anoth-
er to present his claim. The result of our reflections is, that the
charge of the County Court cannot be sustained.
Judgment reversed and remanded.
430 ALABAMA.
Martii; v. Avery.
MARTIN V. AVERY.
1. To authorize a judgment, against a surety of a non-resident plaintiff for the
costs of the suit, it must appear affirmatively upon the record, that the suit
was commenced by a non-resident — that the person sought to be charged
became surety for the costs — and the amount of the costs of the suit. No
notice to the surety is necessary.
• Error to the Circuit Court of Perry.
This was a motion by the defendant in error, against the plain-
tiff in error, as surety for the costs of a suit, prosecuted by one
John Mosely against the defendant in error.
The judgment entry is as follows :
And upon the motion of the defendant aforesaid, for a judg-
ment against the said Levi Martin, the security of the said John
Mosely, for the costs of prosecuting this suit, it appearing in proof
before the Court, that said Levi Martin had entered into an obli-
gation to be security for said costs of suit. It is therefore con-
sidered by the Court, that said Bryant Avery, have and recover
of the said Levi Martin, the sum of five hundred and five dollars
and twenty-five cents, for vehich execution may issue against
said Levi Martin, as well as against said John Mosely.
The error assigned is, that there is nothing in the record to sup-
port the judgment.
Thomas Chilton, for plaintiff in error.
ORMOND, J. — From the earliest period of this Court, it has
been held that to sustain these summary judgments, it must ap-
pear affirmatively upon the record, that every fact vt^as proved to
exist, which is necessary to confer the jurisdiction upon the Court.
That this rule is applicable to cases of this description, is shown
by the case of Barton v. McKinney, 3 S. & P. 274.
The facts which would authorize the rendition of such a judg-
ment as the present, are, the commencement of a suit by a non-
resident— that the person sought to be charged became surety
JUNE TERM, 1845. 431
Ansley v. Pearson et al.
for the costs — that the suit has terminated — and lastly, the amount
of the costs of the suit. Of these facts, but one appears from the
record to exist — that the plaintiff became the surety of one John
Mosely ; there is therefore no predicate shown to authorize the
rendition of such a judgment. The record in the case of Mosely
against the defendant in error, in connection with the bond of the
plaintiff in error, might, it is true, show all these facts, as the judg-
ment against the surety, is the consequence of a judgment against
the plaintiff in the principal suit ; and if a certiorari had been
asked for, it would have been granted to perfect the record. No
suggestion having been made, we are constrained to reverse the
judgment.
It is no objection that the surety was not notified of the motion.
The statute authorizes the Court to render judgment for the costs,
against the surety of a non-resident plaintiff, at the time of ren-
dering final judgment against his principal. [Clay's Dig. 31 7,. §
30.] Let the judgment be reversed and the cause remanded.
ANSLEY V. PEARSON, ET AL.
1. Certain slaves were mortgaged by G. to A., by deed dated in February,
1841, to secure two promissory notes, maturing on the 15th August of tlie
same year ; these slaves were levied on in March, 1841, by attachments, at
the suit of P. and others, and a claim interposed pursuant to the statute, by
the mortgagee, to try the right of property ; a trial was accordingly had,
and the slaves adjudged liable to the payment of G's debts : afterwards,
the mortgagee filed his bill in Equity, alleging that tlie validity of tlie mort-
gage was not controverted by the plaintiffs in attachment, but was rejected
by the Court as evidence, on the trial of the right, at the instance of the
plaintiffs, on the ground merely, tliat it did not tend to prove tlie issue on
the part of the claimant; which was, whether G. had such an interest in
the slaves as was subject to the attachments. The'plaintiffs in the attach-
ments and the mortgagor were made defendants to the bill, which prayed a
foreclosure of the mortgage, and that the judgment upon the trial of the
right of OToperty might be injoined, &c. — HM, that the judgment by
439 ALABAMA.
Ansley v. Pearson, et al.
which the slaves were determined to be liable to the attachments, did not,
under the facts alledged, impair the equity of the bill ; and that the bill was
not objectionable for multifariousness.
2. ^vfire : Where several levies are made upon the same property at the
same time, and several trials of the right are had, if upon verdict of con-
demnation, the jury assess the full value of the property, in each case, and
judgments are rendered accordingly, is it not competent for the Court in
which the trials are had, to correct its judgment, so that the claimant may
iiotbe charged beyond the value of the property ?
Appeal from the Court of Chancery sitting at Tuskegee.
In March, 1844, the plaintiff in error filed his bill, setting forth
that in February, 1841, he sold to Matthew R. Glenn, two slaves,
to-wit, Henny, a woman, and Jacob, her child, for the sum of se-
ven hundred dollars ; to secure the payment of which, the pur-
chaser, at the time of the sale, made his two promissory notes,
one for 8400, and the other for 8300, payable to the plaintiff, on
the 15th August next thereafter ; and a mortgage, bearing even
date therewith was executed by Glenn to the plaintiff, on the
slaves, to secure the payment of the notes. This mortgage, it is
alleged, was duly acknowledged and recorded, of which the plain-
tiffs in attachment had notice. The note for four hundred dol-
lars, was given in payment for the woman, and the other note for
the boy ; on the former, Glenn paid the plaintiff the sum of three
hundred and ninety six dollars and thirty cents, and gave him a
note for three dollars and seventy cents, which fully paid off and
discharged the same. The small note, and the note for three
hundred dollars are still unpaid.
It is further stated, that on the third of March, 1841, three se-
veral attachments were issued against the estate of Glenn, viz ;
one at the suit of John Day, for the use of Charles R. Pearson ; "'
another, at the suit of Felix Simonton, for the use of Pearson &
Simonton ; and a third, in favor of Charles R. Pearson — all re-
turnable to the term of the Circuit Court of Macon next thereaf-
ter to be holden. These several attachments were levied on the
slaves Henny and Jack, on the 7th March, 1841, then in the pos-
session of Glenn. The plaintiff, under the advice of counsel, in-
terposed a claim to the slaves, and gave bond, with surety, to try
the right, pursuant to the statute ; afterwards, a trial was had
upon the claim, in the Circuit Court, between the plaintiffs in the
JUNE TERM, 1845. 433
Ansley v. Pearaon, et al. '
attachments and the plaintiff in this cause, and the mortgage was
rejected as evidence, because the mortgagor was in possession of
the property, and the slaves were therefore adjudged liable to the
attachments. The jury estimated the value of Henny at four hun-
dred dollars, in each of the verdicts rendered by them, and Jack
at two hundred dollars, in the suit of Day, for the use of Pear-
son, and in each of the other cases at two hundred and fifty dol-
lars. It is stated that the plaintiff took possession of the slaves,
under the mortgage, and they have been demanded of him on his
bond, for their forthcoming, upon the right being determined
against him ; that he has delivered Henny to the sheriff, and
tendered him two hundred and fifty dollars, the highest value as-
sessed for Jack, but he refuses to receive the money, and has
returned the bonds in all the cases, forfeited, as it respects Jack.
Executions have issued in each of the cases for the value which
the verdicts have ascertained ; thus requiring the sum of seven
hundred dollars to be made, when the highest price at which
Jack was estimated, was two hundred and fifty dollars.
It is further alleged, that if the slave Jack is sold by the sheriff,
the plaintiff will probably lose his debt, as he may be removed
without the State, and Glenn is wholly insplvent, has absconded,
and gone to parts unknown.
Immediately after the trial oi the claim of property, the plain-
tiff was served with process of garnishment, at the suit of Matil-
da Daniel, requiring him to appear at the Circuit Court of Ma-
con, and state whether he was indebted, &c. to Charles R. Pear-
son ; which garnishment is still pending. Pearson is insolvent,
and has (as plaintiff believes) transferred his interest in the claims
on which the attachments are founded, &c. . » ,
The bill prays a foreclosure of the mortgage, &lc., and that all
proceedings on the judgments rendered on the trials of the right
of property, may be enjoined, &c.
Simonton asd Pearson answered ; publication was made as to
Glenn, and as to him and Day the bill was taken p7-o confesso.
But it is needless to recite the substance of the answers, as the
bill, on motion of the defendants, was dismissed as to Simonton,
Pearson and Day, for want of equity.
Williams and Pope, for the appellant.
• 55
434 ALABAMA.
Ansley v. Pearson, et al.
N. W. Cocke, for the appellees, made the following points :
1. Where personal property, at the time of the levy, is in pos-
session of the defendant, and a claim is interposed by a mortga-
gee, if the issue is general, a verdict in favor of the plaintiff in ex-
ecution, is a condemnation absolutely, of the property, to the sa-
tisfaction of the execution. [Davidson & Stringfellow v. Ship-
man, et al, 6 Ala. Rep. 27.]
2. A Court of Law may arrest the action of its own process,
or if an execution improperly issues, may supersede it. So far
then as the bill seeks to control the execution, either for its irre-
gularity or oppressive use, it cannot be entertained. [Lockhart,
et al. v. McEIroy, 4 Ala. Rep. 572.]
3. The bill is multifarious in seeking to foreclose the mortgage
as to Glenn, and to be relieved against the judgments recovered
by the other defendants.
COLLIER, C. J The precise form of the issue, which was
submitted to the jury in the trials of the right of property, is not
shown by the record, but as the only proper issue', was an affir-
mation by the one party that the property levied on was sub-
ject to the attachment, and a denial of that fact by the other, we
must intend that the issues were thus framed. If the defendant
in the attachments had the possession of the slaves in question, as
a mortgagor, with an undisputed right of possession as against
the complainant, then he had an interest that could be levied on
and sold, although the purchaser would take it subject to the in-
cumbrance. [P. & M. Bank of Mobile v. Willis & Co. 5 Ala.
Rep. 770.] The verdict and judgment upon such an issue as we
have supposed, if in favor of the plaintiff, would be an unqualified
condemnation of the property, to the satisfaction of the Judgment,
and execution. To avoid a result which must necessarily be un-
favorable to the claimant, wnere he has not a present legal right,
he should not interpose a claim at law, but seek the interference
of Chancery, '• for the purpose of ascertaining and separating the
interests of the mortgagor." Williams & Battle v. Jones, 2 Ala.
Rep. 314, See also, 5 Porter's Rep. 182; Davidson & String-
fellow V. Shipman, et al. 6 Ala. Rep. 35.
We are aware, that in several of the cases cited, it is strongly
intimated that a verdict against the claimant who was a mortga-
gee,'rendered upon the proper issue, would be conclusive of his
JUNE TERM, 1845. 435
Ansley v. Pearson, et al.
rights under the mortgage ; and this whether the mortgage was
forfeited or not. But these intimations were not points there aris-
ing in judgment, and must be regarded as mere incidental re-
marks, not of authoritative influence. We will therefore treat
the question as res Integra, and briefly inquire how the judg-
ments at law affect the complainant.
It is laid down generally, " that the judgment or decree of a
Court possessing competent jurisdiction, shall be final as to the
subject matter thereby determined." [Le Guen v. Governeur, et
al. 1 John. Ca. 436. See 1 Blackf. Rep. 360.] So it has been
held, that a verdict and judgment upon the merits in a former
suit, is, in a subsequent action between the same parties, where
the cause of action, damages, or demand is identically the sjime,
conclusive against the plaintiff''s right to recover, whether plead-
ed in bar or given in evidence under the general issue, where
such evidence is legally admissible. [Shaffer v. Stonebraker, 4
G. & Johns. Rep. 345. See also, 2 Pick. Rep. 20; 2 Taunt. Rep.
705; 7 Pick. Rep. 341 ; 8 Id. 171.]
Where the plaintiff* offers evidence in relation to a claim con-
tained in one count of his declaration, which evidence is reject-
ed by the judge, and instead of striking out the count to which
such evidence is applicable, the plaintiff" suffers a general verdict
to pass on the whole case, the judgment thereon will bar a new
action for the claim so attempted to be established. [Smith v.
Whiting, 11 Mass. Rep. 445; Irwin v. Knox, 10 John. Rep.
365; Phillips V. Berrick, 16 Id. 136.] In Wilder v. Case, 16
Wend. Rep. 583, the Court said, « it is well settled, where a mat-
ter is improper by way of defence, in a justice's court, (for ex-
ample by way of set ofi",) if a party will introduce it, and he
goes into the investigation with a view to make it available, and
it passes and is submitted to the justice, or a jury, it cannot be
heard again." But it is admitted, that if the demand had been
rejected in the former suit, on the objection being raised, it would
not have been barred ; but having been litigated, whether allow-
ed or disallowed, it was barred. The only way in which the
defendant in the former suit could have saved his demand from
being barred by the judgment therein, was, by stopping short
the moment its admission for the purpose proposed, was refus-
ed by the justice.
It has been decided, that where an action is brought against a
4illr^- ALABAMA.
Ansley v. Pearson, et al.
defendant on two notes indorsed by hrm, and the case is submit-
ted to the Court, who give an opinion in favor of the plaintiff, on
both notes, but afterwards permit him to withdraw one of them,
and then renders judgment in his favor for the amount of the
other note only, he is not thereby precluded from maintaining a
subsequent action against the defendant on the note that was thus
withdrawn. [Wood v. Corl, 4 Mete. Rep. 203. See also, Cur-
tis V. Groat, 6 Johns. Rep. 168 ; McLean v. Hugarin, 13 Id. 184 j
Wolfe V. Washburn, 6 Cow. Rep. 261 ; Skelding v. Whitney, 3
Wend. Rep. 154 ; Beebe v. Bull, 12 Id. 504 ; 2 C. & H.'s Notes
to Phil. Ev. 963-5.J
If the record shows what matters were in issue, and decided,
parol, evidence is inadmissible to prove that other matters not
within the issue were also decided. [Manny v. Harris, 2 Johns.
Rep. 24.] It is competent to explain, but not to add to, or con-
tradict a record ; and it may now be regarded as settled, in a
great majority of the American Courts, that the record of a for-
mer suit may be explained and the matters to which it relates
identified. Every fact which exists on record, must be proved
by the record ; but when the question is as to the real subject
matter of a suit, or to show a bar to another suit, or to lay the
foundation of an action of indemnity, the identity of the cause of
action, may be proved by other than record evidence. [3 Pick.
Rep. 429,434 ; 17 Serg. & R. Rep. 319 ; 6 T. Rep. 607 ; 1 N.
Hamp. Rep. 35 ; 2 Id. 26, 61 ; 5 Mass. Rep. 337 ; 8 Pick. Rep.
113; 10 Wend. Rep. 80: 3 Cow. Rep. 120; 2 Yerger's Rep.
467 ; 9 Porter's Rep. 397; 6 Ala. Rep. 27 ; 7 Ala. Rep.]
The learned annotators upon Phillips on Evidence, (p. 957,)
as a deduction from the authorities, say, "Where the matter to be
litigated in the second suit was involved in the former issue, and
essential to the finding of the verdict, we have seen that it shall
be taken conclusively to have been decided, (ante 594, p. 844 seq.)
Where the matter might,or might not, have been tried consistently
with the issue,it shall be taken to have been prima facie passed up-
on. And accordingly, if the record shows that the first suit was
apparently for the same cause of action sought to be litigated in
the second, it will be prima facie evidence, that such cause of
action has once passed in rem judicatem; and hence the onus
will devolve on the party against whom the record is used to
'■ ft. .f.i»ii^M*«. ^W'<f">'f«f «»/il»>i{/-* vijfl »(^»«r/i .'yTS?t,,httVii-;!!C\i*.#ft)'*ji%»:ir.:li'
JUNE TERM, 1845. 437
Ansley v. Pearson, et al.
show the contrary." [16 Johns. Rep. 136 ; 6 Cow. Rep. 225 ; 9
Sergt. & R. Rep. 424 ; 2 Verm. Rep. 111,1 14.] r-^^' •■:v.tV,
The complainant alledges that the validity of the mortgage
was not controverted by the plaintiffs in attachment, that it was
rejected by the Court as evidence, on motion of the plaintiffs, not
because it was objectionable as a security, but on the ground that
it did not tend to prove the issue on the part of the claimant j
which was, whether the defendant in attachment had such an in-
terest in the slaves as was subject to the attachments. Assuming
this allegation to be true, as we must, upon a motion to dismiss
the bill for want of equity, and it is perfectly clear that ihe validi-?
ty of the mortgage, (whether an inquiry within the scope of the is-
sue or not,) was not considered by the jury.
The cases of Smith v. Whiting, Irwin v. Knox, and Phillips v.
Berrick, supra, are not hke the present upon the point we are
considering. There the evidence was offered by the plaintiff, for
the purpose of sustaining one of the counts in the declaration, and
though it was rejected, yet the plaintiff did not strike out that
count, or enter a nolle prosequi thereon, but the jury were per-
mitted to render a general verdict upon the whole case made by
the pleadings. The record itself showed that the matter was
submitted for trial, while here the validity of the mortgage was
not necessarily passed on ; and in order to do justice, the com-
plainant should be allowed to -show what transpired at the trials
of the right of property. Such evidence, instead of contradicting,
is merely explanatory of the record.
It may be conceded, so far as this case is concerned, that it
was competent for the plaintiff to have waived all objection to the
admissibility of the mortgage as evidence, and then have shown
that it was invalid. Yet, according to the principles we have
stated, and the authority by which they are sustained, it is un-
questionably clear, that it was not allowable for the claimant to
show, that the mortgage instead of being admitted was in fact re-
jected. Such proof, (we have seen,) is permissible upon the
ground, that the matter though involved in the trial of the right of
property was not essential to the finding of the verdict. j
If the judgments upon the trial of the right of property were ir^
regularly entered, so as to charge the complainant with thrice
the value of the slaves; or if the executions were oppressive, or
unauthorized by the judgments, we are inclined to think it would
ALABAMA.
Drew V. Haynes.
have been competent for the Court of Law, to apply the corrective
in some form. But our conclusion upon the point first consider-
ed, renders the consideration of this unnecessary.
The objection to the bill for multifariousness, we think, cannot
be supported. In order successfully to resist and perpetually en-
join the judgments, it was necessary to show that the mortgage
was valid. In a controversy of this character the plaintiffs in the
attachments and the mortgagor, were all proper parties. The
prayer for an injunction was necessary to make a decree of fore-
closure available ; and a foreclosure, if the mortgagee was enti-
tled to the benefit of his security, was necessary to the final ad-
justment of the rights of all the parties in interest. If the slaves
are of value more than sufficient to satisfy the complainant's lien,
the attaching creditors are entitled to the excess to satisfy their
judgments. See Williams & Battle v. Jones, supra.
Upon the first question examined, the decree is reversed, and
the cause remanded.
DREW V. HAYNE.
1. When the defendant in a suit at law ftdls in his defence, because the wit-
ness relied on to make it appear to the jury, fails to remember the circum-
stances which he is called to give in evidence, this affords no ground for
equitable interposition.
Writ of Error to the Court of Chancery for the 19th District.
The case made by the bill is this :
In August, 1842, Drew purchased from Hayne a horse, under
the agreement that he should be allowed to return him within
three months, if he went lame of a certain defect, or failed in
riding ; in which events Hayne was to take the horse back and
return the note given for it. On this contract, Drew executed his
note for $125, with one Wm, B. Goodgame as surety. When
JUNE TERM, 1845. 439
_^ *
Drew V. Hayne.
the contract was made, no one was present but Drew, Hayne and
Goodgame. After a few days use, the horse was lanae, from
the particular defect, and was returned by Drew to Hayne with-
in three weeks after the purchase/ telling him in the presence of
one Holloway, that he returned the horse according to the agree-
ment. Hayne received the horse and turned him loose in the
yard. Afterwards Hayne sued Drew and Goodgame on the
note given for the horse, in the County Court of Dallas, in which
suit judgment was rendered. Drew made every effort in his
power to defend the suit, and states his belief that he would have
gained the same, if Holloway, who was sworn as a witness could
have remembered what passed between Hayne and himself
when he returned the horse. Drew asserts that he could not
make a witness of Goodgame, because he was sued in the same
action, but if he could have done so, he did not think it necessary
because he thought he could succeed on what he supposed would
be the testimony of Holloway. Long before the trial of the cause
Hayne had left this State for Georgia, and to some part of it un-
known to Drew, so that interrogatories could not have been filed
according to law.
The relief prayed by the bill is, that Hayne may be enjoined
from prosecuting his said judgment; that Drew may be permit-
ted to deposit a sum of money sufficient to answer the judgment,
and have leave to examine Goodgame as a witness.
At the hearing, the Chancellor dismissed the bill for want of
equity. This is now assigned as error.
G. W. Gayle, for plaintiff in error.
G. R. Evans, contra.
GOLDTHWAITE, J.— The principle which induced the
Chancellor to dismiss the bill, is one entirely familiar in this Court,
having been frequently acted on. A party cannot be heard to
insist, in a Court of Equity, upon a defence which could properly
have been interposed in the Court of Law, unless he has been pre-
vented from using it by fraud, or accident, or the act of the op-
posite party, unmixed with fault or negligence on his own part.
[French v. Garner, 7 Porter, 549; Cullum v. Casey, 1 Ala. Rep.
N. S. 357; Lee v. Col. Bank, 2 lb. 2L]
Here it appears that the parl^' was perfectly advised of bis
440 ALABAMA.
Treasurer of Mobile v.Huggins.
defence, but failed in making it appear, because the witness sup-
posed to be conversant with the facts, failed to establish them.
This sometimes happens, but it is not a reason for equitable in-
terposition, as the party might either have filed his bill for dis-
covery against the plaintiff at law, as a non-resident defendant,
and thus have obtained relief, even if he omitted to answer.
[Arnold v. Sheppard, 6 Ala. Rep. 299.] Or have filed his in-
terrogatories under the statute, which being served on the attor-
ney of record, would have produced the required answers, or a
non-suit. [Jackson v. Hughes, 6 Ala. Rep. 257.] The failure
then of the complainant in the suit at law, must be attributed to
his own laches, in not calling upon the defendant at an earlier day
for the discovery which he now seeks — or if otherwise, he is pre-
cluded from coming into equity at so late a period.
-' -Decree affirmed. ««
TREASURER OF MOBILE v. HOGGINS.
■f- • ■ -
1. The Judge of the County Court has no power to adjudicate upon the tajc
list, and ascertain the amount of insolvencies for which the tax collector
is entitled to a credit, except at the time provided by law, viz : the second
Monday in September of the current year, or at the succeeding County
Court, if the special Court is not held.
2. Upon the failure of the County Judge to act, the power conferred upon
the Comptroller to make the allowance, may be exercised by the Commis-
sioners' Court, upon the County tax collected during the period, when
State taxation was abolished.
Appeal from the County Court of Mobile. .'
Motion by H. Sttekney, treasurer of Mobile county, against
.the defendant in error, sheriff, assessor, and collector of taxes for
the year 1842, for five thousand three hundred and five dollars
and twentyrcight cents, balance due by him for taxes collected
JUNE TERM, 1845. 441
Treasurer of Mobile v. Huggins.
that year. The Court rendered judgment against him for two
thousand one hundred and thirty-four dollars and thirty-three
cents, from which the treasurer appealed to this Court.
From a bill of exceptions taken in the cause, it appears that
the sheriff claimed allowances for insolvencies for the year 1842,
and also for the year 1841, during which year he had also been
the assessor and tax collector. The treasurer insisted that he
was not entitled to the allowances claimed for either year, upon
the ground that they had not been passed upon, within the time,
and in the manner provided by law ; and that for the year 1841
the taxes had been fully settled, and a receipt in full for that pur-
pose passed to him. He further insisted, that an allowance had
been made to him by the Commissioners' Court, and that a fur- •
ther allowance could not now be made. Appended to the re-
cord is the proceedings of the Commissioners' Court, on the 22d '
May, 1844, by which the treasurer was directed, on the payment
by Huggins of four thousand dollars, to execute receipts in full
to him for the taxes for the years 1841 and 1842.
This motion was made on the 25th November, 1844, and con-
tinued until the 21st January, 1845. The County Judge consi- ,
dering, that the action of the Commissioners' Court was not final
— that the time had not elapsed within which allowances could be
made, and that the acceptance of a receipt from the treasurer for
the year 1841, did not preclude the sherifT from going into the
enquiry, permitted testimony to be introduced, showing the in-
solvencies for the years 1841 and 1842, and allowed them, and
rendered a judgment for the residue.
These matters are now assigned as error. •
Phillips, for plaintiff in error contended, that the County
Judge had no authority to sit under the statute. That as to this
matter his Court was one of special and limited jurisdiction, and
the authority to act should be shewn upon the i-ecord. [2 Stew.
334? 19 John. 7 ; 1 John. C. 20 ; Hill & Cow. Notes, 906.]—
He further contended, that there was no authority whatever for
ripping up the settlement made in 1841, and referred to the seve-
ral statutes. [Clay's Dig. 570, § 68, 69, 70, 244, § 11, 245, § 16,
19.]
■56 ' ■ '
442 ALABAMA.
Treasurer of Mobile v. Huggins.
Campbell, contra, insisted, that there was ho pretext for say-
ing the allowance was not just, and the only question was, whe-
ther the Court had jurisdiction, and relied upon the statute on
the subject.
ORMOND, J. — The only question presented upon the record,
is, whether the Judge of the County Court of Mobile had juris-
diction to pass upon the insolvencies, alleged to exist by the tax
collector in Mobile county.
By the general law, as it has existed in this State for many
years, a particular tribunal was created, for the ascertainment of
the amount of insolvents, included in the general list, showing the
gross amount of taxes, for which the tax collector stands charg-
ed. This tribunal, was a Court required to be held hy the Judge
of the County Court of each county, on the 2d Monday of Sep-
tember of each year, when an examination of the amount of in-
solvencies was to be made, ascertained, and certified to the
■ Comptroller. [Clay's Dig. 570, § 68.]
When, from any cause, this Court was not held, the Comp-
. . troller was himself authorized to make the proper allowance; [lb.
§ 69,] and by another section it was provided, that when the spe-
cial Court, above spoken of, was, from finy cause, not held, the
duty of making such allowance was devolved on the next Coun-
ty Court, [lb. § 70.]
As it respects taxes for county purposes, the general law au-
thorized the several County Conrts to levy taxes on the subjects
of State taxation, under the same regulations and restrictions, as
were provided for the State tax. Thus the law stood until the
9th January, 1836, when an act was passed abolishing State tax-
ation, and authorizing the Commissioners' Courts of the respective
counties, to impose taxes for county purposes. On the 13th of
February, 1843, an act was passed, again reviving State taxa-
tion, and authorizing the Commissioners' Courts to levy taxes for
county purposes, not exceeding thirty per cent, on the amount of
the State tax.
From this examination of the statutes, it appears, that the
Comptroller of the State had no power to act upon the subject in
controversy here, and that no tribunal, but that of the special
County Court, and the succeeding County Court, if the first was
not held, existed for the ascertainment of insolvencies. The pow-
JUNE TERM, 1845. 443
Treasurer of J^Iobile v. Huggins.
er conferred on the Comptroller, of making sucb allowances,
when the County Judge had failed to act, evidently relates to the
general State tax; but his allowance in reference to the State
tax, would also operate on the county tax, as the subjects of taxa-
tion were the same ; the county tax being a per centum on the
amount assessed as a State tax. During the existence there-
fore of State taxation, an ultimate tribunal was appointed for the-
settlement of such questions, but when State taxation ceased, and
by necessary consequence, the power of the State Comptroller
was at an end, no substitute was provided by law in regard to the
county tax, unless the Commissioners' Court, the financial organ
of the county, can, under the previously existing law, be consi-
dered sufficient for that purpose. Such, in our opinion, is the
correct construction of the law.
This Court, by the act creating it, is invested with ample pow-
ers for the settlement of such questions. "It is declared, that "they
shall have control over the funds in the county treasury,'' which
would seem to be an explicit grant of the power in question.
[Clay's Dig. 149s^ § 3,] As the act abolishing State taxation,
created no tribunal for the adjustment of this matter, other than
the County Court, which had power to sit only at certain pre-
scribed tinfies, and could not legally sit at any other time, we think
the Commissioners' Court, having the control and management'
of the county funds, had the power, upon the failure of the Coun-
ty Court to act, to make the necessary allowance.
It is, we think, very clear, that the Judge of the .County Court
has no power to make such allowances, but at the times and in
•the mode pointed out by the statute. The power conferred, does
not appertain to the office of Judge of the County Court, either as
a Common Law Judge, or as Judge of the Orphans' Court. It
is a special grant of power, which upon well established princi-
ples, can only be exercised upon the terms on which it is con-
ferred. This is also qlear from a consideration of the subject to
be acted on» and the evident design in conferring the power
The revenue of each year, is wanted for the expenses of that*
year, and all the machinery was provided, with a view to en-
sure its prompt collection. The intention was, that the revenue
should be collected during the year, to meet the current expenses
of the government, and that the accounts of the tax collector
should be closed during the year. It would be most mischiev-
444 ALABAMA.
Ansly V. Mock.
ous in its consequences, if the tax collectors could, by their own
act, diminish the revenue, by claims for insolvencies of preceding
years. To prevent such a state of things, especial care has been
taken, by the appointment of a special tribunal, to sit before the
close of the fiscal year, and if from any cause, it fails to sit, the
necessary deduction may be made by the Comptroller when the
taxes are paid in ; and if not paid, suit is promptly to be instituted.
All these provisions are hostile to the idea, that the time of hold-
ing the special County Court is directory merely. It is of the
very essence of the power granted, whether considered accord-
ing to its letter, or to its spirit and design.
These remarks apply equally to the county, as to the State
tax. The reason is the same, and the law has made no distinc-
tion between them. '
The taxes here involved, were collected in 1841 and 1842.
It does not appear that in either year, at either the special, or
general County Court, any application was made for an allow-
ance of insolvencies, and most certainly the County Judge had
no power afterwards to adjudicate them. We have already
stated, that the Commissioners' Court had the power to make the
proper allowance, although the power of the County Judge, by
lapse of time, was gone ; and iii this ease it appears the Commis-
sioners' Court has acted on the subject, and recommended a re-
duction of thirteen hundred dollars. This was certainly obliga-
tory upon the county, and for that sUm the defendant is entitled to
a credit.
Let the judgment be reversed, and the cause remanded for fur-
ther proceedings.
ANSLY V. MOCK.
1. The defendant in a suit at law, filed his bill to enjoin a trial, and pursu-
ant to an order for that purpose, entered into a bond with surety, condi-
tioned to pay the plaintiff " all damages which he might sustain by the
JUNE TERM, 1845. 446
Ansly V. Mock.
wrongful suing out of the injunction " &c. In a suit by tbe obligee against
the surety, tlie declai-atl on all edged thqit Uie injunction wus dissolved, six
or seven years after it was awarded ; o judginent tit law rendered for tlie
plaintiff— the amouijt thereof ; that r^-i facias was duly Issued thereon,
and by the sheriff returned " no property found ;" further, timfc when the
judgment was rendered and the cxeculioin issued, tlie defendant was insol-
vent, and unable to pay the same: By reason of all which the bond be-
came forfeited. &.C.: Held, that the breach was not well assigned, but it
should have been shown what was the condition of tlte principal obligor
when the bond was executed ; for if he was then insolvent, or became so
shortly thereafter, and before, in theoixlinarycourseof proceeding, a judg-
ment could have been recovered, if a trial had not been enjoined, the plain-
tiff would have sustained no " damages," and uotliing more tlifui the costs
in Chancery could be recovered. •. • ., •..-.. .-
2. The plea oinil debit toi*n actio a of debt on a bond, is J)ad on demurr(3r;
but if the plaintiff demui-s to it, tlie Com-t should visit the demurrer upon
the declara,tion, if it be defective in substance.
3. In an action agauist a surety upon a bond, executed in compliance with
the order of a Chancellor awarding an injunction to enjoin a trial at law,
the records of the suits in Chancery and at law are admissible to show the
dissolution of tlie injunction and the amoilnt of the recovery at law.
4. It is correct as a general proposition, that tlie penally of a bond limits the
. responsibility of one who executes it as a surety, and consequently he is not
,-• liable in the event of a breach for interest upon tlie penalty.
Writ pf Error to the Circuit Court of Macon. ,' ; ,; *
The defendant in error declared against the plaintiff, in debt,
setting forth that on the 23d September, 1833, he commenced an
action, &c., against Peter Robertson, and on the 31st of Octo-
ber, 1834, the defendant in that action prayed for and obtained
an injunction against the further prosecution of the same, upon
executing a bond to the plaintiff, in the penal sum of one thousand
dollars, conditioned to pay him "all damages which he might sus-
tain by the wrongful suing out of said injunction," &c. In pur-
suance of the order, Robertson and the defendant signed, sealed,
and delivered an injunction bond, dated the 31st day of October,
1834, in the penalty above mentioned, the condition of which re-
cites the proceedings at law, the bill in Chancery, the order there-
on, and undertakes the performance of what is there required
upon the contingency provided. The bill was filed on the day
446 ALABAMA.
Ansly V. Mook.
the injunction was obtained, and the injunction was served on the
the plaintiff on the 10th January, 1835.
It is then alledgcd, that the injunation was dissolved and bill
dismissed in July, 1840, and the plaintiff permitted to proceed in
his suit at law. Afterwards, at the spring term, 1842, of the
Circuit Court of Lowndes, in which the suit was pending, the
plaintiff recovered a judgment against Robertson for the sum of
f 1,071 32, and costs. Further, on the 10th May, 1842, an ex-
ecution issued on that judgment against the goods and chattels,
lands and tenements of the defendant therein, which was receiv-
ed by the sheriff, (fee, on, &c., and by him returned « no proper-
ty found."
The plaintiff then avers, that at the time the judgment was
•rendered, and the execution issued and returned against Hobert-
son, he was insolvent, and unable to satisfy the same. By
reason of all which, the bond declared on became forfeited, &c.
The defendant pleaded — 1. Nil debit. 2. Nultiel record, as
to the judgment alledged in the declaration. 3. That the plain-
tiff hath not been damnified by reason of any matter, cause, or
thing, in the condition of the bond described in the declaration.
4. A set off to an amount beyond the penalty of the bond. To
the first and third pleas the plaintiff demurred; his demurrer was
sustained to the first, and overruled to the fourth plea. An issue
was then joined upon the three last pleas, and the cause subfnit-
ted to a jury, who returned a verditt for the plaintiff, for $379 19^
and judgment was rendered accordingly.
On the trial, the presiding judge sealed a bill of exceptions at
the instancje of the defendant, which present? the following points :
1, The plaintiff gave in evidence a regularly certified transcript
of the record of the suit in Chancery, between Robertson and
the plaintiff, in which the bond declared on was executed, not-
withstanding the defendant objected to its admissibility. 2. He
also laid before the jury the record of the prooceedings and judg-
ment of the sujt-at law, to enjoin which the bill was filed, although
the defendant objected to its competency as evidence 3. The
issue upon the fourth plea required the defendant to prove a pro-
mise by the plaintiff to pay the debt proposed to be set off within -
six years previous to the commencement of this suit. To sus- * ■
tain this issue, it was admitted by the plaintifl', that Robertson
would testify that the defendant was entitled to a set off against
JUNE TERM, 1845. 44'r
l__ . : . . ^- ' ■
Ansly V. Mock.
the cause of action embraced in this suit, to the amount of five
hundred dollars or thereabout. That the set off consists of un-
settled claims against the plaintiff, which claims Robertson had
entirely lost sight of, as he considered the plaintiff entirely insol-
vent. It was admitted by the defendant that the set off claimed^
accrued before the institution of the suit at law, which had been '
enjoined, viz: previou'S to 1832. This was all, the evidence ad-
duced by the defendant, and the Court decided, that it did not es-
tablish a subsequent promise, so as to take the set off out of the.
influence of the statute of limitations'. ' 4; It was proved that the
amount of the judgment recovered in the suit at law was larger
than the penalty of the bond with interest thereon. The Court
charged the jury, that the measure of the plaintiff's recovery would
be the penalty of the bond with interest thereon from the return
of the execution against Robertson <^no property found." 5.. The
defendant prayed the Court.to instruct the jury, that the plaintiff
was' bound to prove the execution of the injunction bond by Ro-
bertson, the principal therein, and the transcript of the records,
which had been given irievidenee by.the.plaintiff, did not show
that fact : but the Court refused thus to charge.
It was proved that Robertson was solvent when the injunction
vwas awarded, but became insolvent before the dissolujiou there-
of. It was admitted by the plaintiff in error that a judgment was
confessed for part of the demand sued for, previous to the trial,
as stated in the argument of the; counsel for the defendant in
error.,-.-.- ' (\< ■*'';■.■■',;*■>■••'• .j-.*-;^,-;: \ . '..P-.^'-.r'- .-W'--^y-- '
T, Williams, for the pkintlff in error, made these pointer—
1. The ddmurrer to the defendant's first and fourth pleas should
have been visited upon the declaration. 2. The transcripts of the
records of the proceedings both at law atidin equity, should have
been excluded. 3. The Court should , not have instructed the
jury, that the evidence before them did not show a subsequent
promise by the plaintiff to pay the demands proposed to be. set
off; and erred in instructing them, that the plaintiff might recov-
er damages beyond the penalty of the bond. 4. It was essential
to the plaintiff's right to recover, tha;t he should have proved the
execution of the bond by- Robertson, and the Court should have
charged the jury that thei records offered by the plaintiff did not
establish the fact. •'. . - ^;-;- - • . , '• ^ ':.-'r.",V'' 't'.s^^'*'
448 ALABAJMA.
>Ansly Vi Mock.
;.J.. P. Saffold, for the defendant in error. The main ground
upon which the plaintlfl'in error hopes to reveree the judgment of
the Circuit Court, is, that the jury were charged that the measure
of damages was tbe penalty of the bond, with interest thereon
from the time the execution against Robertson, the principal obli-
gor, was returned " no property" found. It is admitted that the
authorities upon the general question are somewhat contradictory ;
but in a case like the present, where by long continued litigation,
the amount intended to be secured exceeds the penalty of the bond,
interest is recoverable^ [3'Caine's Rep. 48, and note (a) ; 2 Burr.
Rep. f094; 0 Ves. Jr. Rep. 92 ; 1 Vern. Rep. 349; Shower's
Pari. Cases, 15 ; 1 Kinne L. Comp. 151, § 23; 1 Gall. Rep. 348,
360 ; 9 Cranch's Rep. 104, 112 ; 2 Dall. Rep. 252 ; 3 Atk. Rep.
617 ; 1 Mass. Rep. S08.J The case in 4 Ala. Rep. 671, in
which the penalty of the bond is said to be tbe measure of the
recovery, is unlike the present, f That wafe a recognizance in fa-
vor of the State. > : - . .
The declaration it is: belie vecl, is free. from all objection, and
the demurrer of course could not have been visited upon it. [2
, Porter's Rep. 249.] No objection has been pointed out to the .
transcripts of the records, which were offered by the plaintiff;
and in respect to the proof of a subsequent promise to take the
'sets off out of the statute ofiiBaitatiQnSjj itJs enough, to say. jdwkt
none was given. ; ; "'. V. '■> . ' ■ ■ ''{■•• . ' ■•''•'''■?■
None of the issues thl'ew upon the plaintiff the burden of protr-
ing the execution of the bond by Robertson. The sets off it may
be remarked further, were against Robe^'tson, and if not barred,
are jnadmissible under the plea.^-;;;;.;'vy{-v>-.,W ;.;->t^/ x>';-^/,^«i'','
It is admitted by the plaintiffiii-errGf, that the retotd: is- iitiper-
fect, in not showing a confession of judgment by him, for the sum
of $723 21, at a term previous to the trial, in order to obtam a
continuance as to the residue of the demand sought to be recov-
ered. If then, the Court should be of opinion, that interest upon
the penalty is not recoverable, it is suggested that the proper judg-
men^t; soay be here rendered. ; ; > /
-■■':<'■'''•*-•' .■:••;, ■rv^■:■■^'■■■^'':■:•
COLLIER, C. J — 1. The declaration sedms to us to be fa-
tally defective. It recites the bond at length, avers that it was
taken pursuant to the order of the judge who awarded the injunc-
tion, alledges the dissolution of the injunction, the recovery at law,
JUNE TERM, 1845. 449
Ansly V. Mock.
the return of a fieri facias agtjinst Robertson "no property found,"
the insolvency of Robertson when the judgment was rendered
and execution issued, and as a consequence thereof, deduces the
forfeiture of the condition of the bond, and the liability of the de-
fendant. This is not a good assignment of a breach. It is not
co-extensive with the undertaking of the obligors, and does not
comprehend its effect. They engage to pay the plaintiff all dam-
ages he may sustain by the wrongful suing out of the injunction.
The extent of these damages do not depend upon the dissolution
of the injunction, the recovery of a judgment thereon, the insol-
vency of the principal obligor at that time and afterwards, and
the return of "no property found" to a feri facias on that judg-
ment. Yet the plaintiff deduces the liability of the defendant, the
surety, from these premises.
It is in general sufficient to assign the breach in the words of
the covenant, promise, &c. Thus in an action upon a covenant
to repair, it is enough to alledge that the defendant did not repair ;
or upon a covenant not to permit an escape without a warrant
from the sheriff, it is sufficient to say that the defendant permitted
the escape of A, without a warrant, without alledging how A
was arrested. [Mansel on Dem. 44-5.] But it is said not to be
always sufficient to negative the words of the condition of a bond.
Accordingly, where the undertaking was to secure certain lands,
&c. " free from all legal incumbrances, either by deed or mort-
gage, or otherwise now in existence, and binding upon the pre-
mises ;" the breach alleged was, that the defendants " did not free
the land from all legal incumbrances, either by deed, mortgage, or
otherwise, then in existence, and binding upon the premises."
The Court held the declaration bad in substance, for the insuffi-
ciency of the assignment, which did not necessarily show a breach.
[JuUiand v. Burgott, 11 Johns. Rep. 6. See further, U. S. v.
Spalding, 2 Mason's Rep. 478 ; Craghill v. Page, 2 H. & M.
Rep. 44G ; Winslow v. Commonwealth, Id. 459.]
Under the statute of 8 and 9 Wm. III. ch. 11, of which our
statute is almost a literal copy, it is held to be compulsory on the
plaintiff to assign breaches of all the covenants for the breach of
which he claims damages, [2 Caine's Rep. 329 ; 2 Johns. Cas.
406; 4 Johns. Rep. 213.] But the plaintiff has his election to
declare for the penalty only, and set forth all such breaches in
his replication to the defendant's plea of performance, or to set
57
46a ALABAMA.
Ansly V. Mock.
them forth in his declaration. If, however, he sets out the condi-
tion in his declaration as his cause of action, or a part of it, he
should show how it became absolute ; and this must be done, so
that it may appear, that there. has been abroach for which dam-
ages are recoverable. And if a good breach be not assigned,
the defendant may demur generally. [Mansell on Dem. 44.]
In Gentry v. Barnett, 6 Monr. Rep. 114, it was held, that to a
plea of conditions performed, the plaintiff may reply and assign
breaches, but having assigned one or more specially in his de-
claration, and been defeated by the pleadings of the defendant,
'he cannot afterwards assign new breaches. This may suffice
to show, that although the plaintiff might have declared for the
penalty of the bond, and set out a breach of the condition hi a
replication; or after judgment by default, or upon demurrer, have
suggested breaches on the roll, yet if he elects to do this in his
declaration, the breach must be well assigned. ■
In Dickinson v. McCraw, 4 Rand. Rep, 158, the Court say,
that in declaring on an attachment bond, it is not sufficient to al-
ledge, that the defendant « did not pay all such costs, &c. as ac-
crued," it must be expressly averred that costs and damages have
been sustained. An averment of a breach of a bond only entitles the
plaintiff to recover what he is legally entitled to by reason of the
breach. [McDowell v. Burwell, Id. 317; Flanagan v. Gilchrist,
at this term.
In the case before us, it is .not alledged that Robertson, the
complainant in Chancery was solvent when the injunction was
granted, and this cannot be assumed or implied from any allega-
tion in the pleadings. Now he may have been entirely unable
.to respond to the plaintiff when the judgment was recovered alid
execution issued, and yet have been entirely good when the pro-
ceedings at law were enjoined, and so have continued for a half
dozen years and more thereafter. Or he may have been insol-
vent not only at the latter, but at the former period also. The
declaration is at fault in omitting to alledge the condition of
Robertson at the time the injunction \tas obtained. And this
defect is a substantfal one ; for. if he was then solvent, and so con-
tinued for a sufficient length of time as to enable the plaintiff to
obtain a judgment and collect the amount according to the regu-
lar course of proceeding, had he not been enjoined, then the plain-
tiff would have sustained damages in consequence of the injunc-
JUNE TERM, 1845. 451
Ansly V. Mock.
tion, to the amount of the judgment and costs. But if he was
then insolvent, and so continued up to the rendition of judgment,
the only damages to which the plaintiff is liable is the costs to
which he was subjected in Chancery — and for these, no breach is
laid.
Having attained this Conclusion, the only question upon the
point is, should the demurrer to the pleas have been visited upon
the declaration. It is said to' be a rule, that on demurrer the-
Court will consider the whole record, and give judgment for the
party who appears to be entitled to it. This rule has its excep-
tions, but the case at bar is not one £>{ them. [Step, on Plead.
144-5 ; 1 Mass. Rep. 495 ; 2 Id. 84 ; 6 Id. 389 ; 16 Id. 1 ; 11
Pick. Rep. 70, 75.
The plea of nil debit was certainly bad, but the Court (as we
have seen,) should have looked at the entire record, and given
judgment against the party who committed the first fault in plead-
ing. Now although the proof upon this point was (as it would
appear) ample, and the instructions of the Court correct, yet this
could not cure the defect in the declaration.
2 and 4. No objection has been pointed out to the admission
of the records of the suits at law and in Chancery, and we think
they were prima facie competent to show the dissolution of the
injunction and the amount of the recovery at law. They should
not have been rejected upon the ground that they were res inter
alias. The liability of the defendant in the present suit, is acces-
sorial to Robertson, who was one of the parties to those cases,
and this it seems to us, is quite sufficient to have authorized the
Courts to admit the transcripts.
3. In the Bank of U. S. v. Magill, et al. 1 Paine's Rep. 669,
Mr. Justice Thompson, said, where a bond with a penalty is
given for the performance of covenants, the recovery must be
limited to the penalty, though damages may have been sustained
to a greater extent. That becomes the debt due, upon which
interest may be added, according to circumstances. According-
ly it has been held, that interest beyond the penalty of a bond
may be recovered in the shape of damages, even against a surety.
[Harris v. Clap, 1 Mass. Rep. 308.] And in Smedes v. Hoogh-
taling et al. 3 Caine's Rep. 48, Kent, C. J. said, « On a review of
all the decisions on this subject, the Court thinli this rule ought
to be adopted : That interest is recoverable beyond the penalty
452 ALABAMA.
Ansly V. Mock.
of a bond. But, that the recovery depends on principles of law,
and is not arbitrary at the discretion of a jury. See Paine v.
Mclntier, 1 Mass. Rep. 09 ; Carter v. Carter, 4 Day's Rep. 30,
and cases there cited; Maryland v. Wayman, 2 G. & Johns. Rep.
279 ; U. S. V. Arnold, 1 Gall. Rep. 348.
In Clark v. Bush, 3 Cow. Rep. 151, the question whether the
obligee could recover damages beyond the penalty was consider-
ed, and many authorities critically examined. The Court there
said, «, The weight of the authorities is, I think in favor of the doc-
trine, that in debt on bond nothing more than the penalty can be
recovered, at any rate, nothing beyond that and interest, after a
forfeiture, even against the principal obligor." But if the princi-
pal may be charged with interest thereon, still it is clear, the ex-
tent of the surety's liability " is the penalty of the bond."
In Branguin v. Perrot, 2 Bla. Rep. 1190, Ch. J, DeGrey con-
sidered that the penalty by consent of parties, ascertained the
maximum of the plaintiff's damages, and if that is paid him, he
^ can desire no more. Such was also the decision in White v. Sca-
ly, et al. Doug. Rep. 49 ; but afterwards, in Lansdale v. Church,
2 T. Rep. 388, Buller, Justice, declared he was not satisfied with
the decision in White v. Sealy ; and cited Elliott v. Davis, Bunb.
Rep. 23; Collins v. Collins, 2 Burr. Rep. 820, and Holdipp v.
Otway, 7 T. Rep. 447, in which the plaintiff had been allowed
to recover damages exceeding the penalty. Lord Thurlow, in
Tew v. The Earl of Winterton, 3 Bro. Ch. R. 490, jmd Knight v.
Maclean, Id. 596, held, that the obligor could not be charged be-
yond the penalty of the bond ; and the King's Bench and Com-
mon Pleas have subsequently so laid down the law. See Wilde
V. Clarkson, 6 T. Rep. 303 ; McCIure v. Dunkin, 1 East's Rep.
436 ; Hefford v. Alger, 1 Taunt. Rep. 218.
Many of the American decisions maintain that the obligee
, may recover interest upon the penalty from the time of the first
breach of the condition, if the damages amount to so much. Yet
these adjudications are contradictory upon this point, even as it
respects the principal obligor, and the learned Judge who deli-
vered the opinion of the Court in Clark v. Bush, supra, says Har-
ris V. Clap, in adjudging that the surety may be charged beyond
the penalty, stands « solitary and alone." [See Payne v. Ellzey,
2 Wash. Rep. 143 ; Hardy v. Martin, 1 Cox's Rep. 26 ; Hal-
JUNE TERM, 1845. 453
Ansley v. Mock.
ler V. Ardley, 3 C. & P. Rep. 12 ; Lloyd v. Hatchett, 2 Aust.
Rep. 525 ; Mackworth v. Thomas, 5 A^es. jr. Rep. 529.]
We might add to these many other citations, but we deem
this wholly unnecessary, as they may be found referred to in the
cases cited. Upon principle, we are entirely satisfied that the
penalty must limit the responsibility of the surety. The obligors
stipulate to perform a duty should the event provided for by the
condition, happen, or if they fail to do so, then to pay the penalty.
Although such is the undertaking, the penalty is not regarded as
an absolute debt, to which the obligee is entitled upon the obli-
gor's default, but the recovery is to be admeasured by the dama-
ges actually sustained. If these damages- exceed the penalty,
the surety is not liable for the excess ; for he has by his contract,
provided for his discharge, upon the payment of the sum stipu-
lated. If the law were otherwise, says Lord Kenyon, « an ob-
Hgor who became bound in a penalty of £1000, conditioned to in-
demnify the obligee, may be called upon to pay £10,000, or any
larger sum, however enormous." True, a Court of Equity has
sometimes rendered a decree in favor of the obligee for a sum
greater than the penalty. Thus, in Grant v. Grant, [3 Russ. R.
598,] where proceedings were restrained for many years by in-
junction, without misconduct on the part of the creditor, Lord
Eldon said, « In his opinion, the plaintiff's demand was not to be
limited to the amount of the penalty of the bond ; for he had al-
ways considered, on the authority of Duval v. Terry, (Show. P.
C 15,) that a party who had been restrained from proceeding at
law, while the debt was under the penalty, had a right in a Court
of Equity to principal and interest beyond the penalty of the
bond." Again, " With respect to the general jurisdiction, I en-
tertain no doubt whatever, that if a person indebted in a sum of
money by the bond, files his bill for an injunction, stating that he
is entitled by reason of equitable circumstances, to be relieved
from the obligation which presses on him at law, and there is no
neglect or default on the part of the defendant, this Court has a
right to consider the bond creditor as submitting to do equity
when he asks equity ; and whatever, abstruse and delicate rea-
soning there may be, as to whether the excess of the debt be-
yond the penalty, is a specialty debt or a simple contract debt,
this Court will find a way to give execution for the difference.
On the other hand, if it were the creditor's own fault that he had
454 ALABAMA.
HoUinger, et al. v. Holly, et al..
not enforced payment of his debt sooner, it would not be compe-
tent for him to take the benefit of the same rule." (See also,
Clarke v. Seton, 6 Vesey, jr. Rep. 411 ; Clarke v. Lord Abing-
don, 17 Id. 106.) But if it were allowable to apply this equita-
ble rule in a suit at law, it might perhaps be questioned whether
the record discloses such a case of protracted and vexatious liti-
gation on the part of the complainant in equity, as to authorise a
judgment for interest upon the penalty against the surety in his
bond.
Without stopping to inquire whether a recovery might be had
against the principal obligor, in an action upon the bond for a
larger sum than the penalty, we are satisfied that such a judg-
ment cannot be rendered against the surety. It remains but to
add, that the judgment is reversed, and the cause remanded. ^
. HOLLINGER, ET AL. v. HOLLY, ET AL
1. The act of 1643, which requires creditors to file their claims in the clerk's
ofiice of the'Orphans' Court, witliin six months after the estate is represent-
ed insslvent, creates a bar to all claims not so presented.
2. The omission to verify the claim so filed, by the affidavit of the claimant, is
not ground for rejecting the claim, unless an exception to it is filed with-
in the time allowed by the act
Writ of Error to the County Court of Mobile.
The writ of error in this case is -sued out by several of the cre-
ditors of the estate of James M. Ashton, whose claims were re-
jected by the Court, upon the final settlement of that estate as an
insolvent estate.
Albert Mudge presented for allowance, a judgment obtained
by him in the Circuit Court against James M. Ashton, in his life
time. The claim had been presented to the administrators with-
in eighteen months after letters granted. The administrators ob-
JUNE TERM, 1845. 455
HoUinger, et al. v. Holly, et aJ.
jected to it on the ground that it had not been filed in the clerk's
office within six months after the estate was declared insolvent.
The objection was sustained.
Thomas P. Fennel presented a similar claim, in which the
judgment was against the estate, upon sci. fa. against the ad-
mininistrators. This was rejected for the same reason.
William Magee presented a note upon Ashton, which had
been presented to the administrators within eighteen months af-
ter letters granted. This was rejected for the same reason.
John Hartwell presented an account, which had been present-
ed to the administrators within eighteen months after Jetters
granted. This was rejected for the same reason.
The administrator of D. McLean presented an account for
medical services rendered during the last illness of Ashton. This
was objected to for the same reason ; but the objection was over-
,ruled, and the account being proved, was allowed in full.
Peter Clark presented a note, made by Ashton in his life-time,
which had been duly presented to the administrators, and was em-
braced in the schedule of claims against the estate, filed by the
administrators when they applied to have the estate i'epresented .
insolvent, which schedule has remained in the County Coiltt ever
since. This was rejected for the same reason.
Wm. De F. Holly, the administrator of the estate, under set-
tlement, presented for allowance a judgment recovered by him in
the Circuit Court of Mobile, against Ashton in his life-time, which
in the report of insolvency made by him, is expressed thus —
Wm De Forest Holly, cash $19,780 34, in the schedule of claims
filed by said Holly when he applied to have the estate declared
insolvent. The schedule was sworn to by Holly, and was ac-
companied by a certificate of the clerk of the Court, stating that
Holly had recovered such a judgment, setting out dates, &c. &c.
This claim was objected to by William Magee, a creditor, on
the ground that it had not been filed in the clerk's office in six
months after the estate was declared insolvent. The objection
was sustained. •
Adam C. Hollinger presented an open account, for goods,
wares, (fee sold and delivered Ashton in his life-time. This had
been presented to the administrators in due time, and was also
filed in the clerk's office within six months after the declared in-
solvency. When filed it was sworn to as being correct, by one
456 ALABAMA.
HoUinger, et al. v.HoUy, et al.
Carr, according to the best of his belief. The administrators ob-
jected to the allowance, because the account was not verified by
the oath of the claimant The objection was sustained, and the
account rejected.
William Magee presented for allowance a note executed by
Ashton in his life-time, and which had been presented to the ad-
ministrators within eighteen months after grant of letters of ad-
ministration, and before the passage of the act of 1843, relating
to the settlement of insolvent estates. The administrators ob-
jected to this claim, that it had not been filed in the clerk's of-
fice within six months after the estate was declared insolvent.
-The objection was sustained, and the claim rejected.
The several creditors whose claims were rejected, excepted to
the decision of the Court, and they now join in the assignment of
errors.
Campbell, for the plaintiffs in error, insisted, that there was
nothing in the statute [Clay's Dig. 192,] which creates a forfeit-
ure, although the demand may not be filed according to the terms
of the act. The presentation to the administrator seems.provi-
ded as equivalent to the filing in the clerk's office.
In other States, where the statute is hold as a bar, it is so on
account of express terms, to that effect. [15 Mass. 264 ; 6 Pick.
330 ; 9 Verm. -143 ; 7 lb. 13G.] • ; ^
No counsel appeared for the defendants in error.
GOLDTHWAITE, J.— To" come to a determination of the
several questions arising from this record, it is necessary to refer
to statutes not now.in force. The course of proceeding, with re-
ference to insolvent estates, was first prescribed by an act pass-
ed in 1806. The Orphans' Court, after ascertaining the fact of
insolvency, and after directing the lands of the decedent to be ■
sold, was required to appoint two or more commissioners, with
full power to receive and examine all claims of the several cre-
ditors ; to accomplish this, they were required to cause the times
and places of their meethigs to attend the creditors lo be made
known in a certain manner ; and six months, and such further
time, (as the circumstances of the estate should require,) not ex-
ceeding eighteen months, was to be allowed to the creditors for
JUNE TERM, 1845. 4Sl
Hollinger, et al. v. Holly, et al..
bringing in and proving their claims before the commissioners :
at the end of the limited time these were to make their report,
and present, on oath, a list of all claims laid before them, with the
sum allowed on each respective claim. Notwithstanding the re-
port, any creditor, whose claim, in whole, or in part, was rejected,
or any administrator, &c., who should be dissatisfied with the re-
port, or a particular claim, might, for good and sufficient cause
shown to the Court, have the claims referred by the Court to re-
ferees, whose report and award thereon, was to he final and con-
clusive. [Aik. Dig. 152.]
Afterwards, by the act of 1821, it was made the duty of the
Judge of the County Court to audit and determine the accounts
relating to such estates, under the regulations before prescribed
for commissioners ; and creditors were allowed in all cases, to
file the evidences of their claims in the clerk's office. But the
Judge was permitted to appoint commissioners when in his opin-
ion the case should require that to be done.
It may be observed here, that under these acts, the administra-
tor retained the control of the estate, and was competent to dis-
pute with the several creditors the validity of their claims ; but
independent of this authority, the commissioners, under the first
act, and the Judge of the County Court, under the last one, were
invested with power to examine the accounts which were to be
proved before them. As the claims might be examined and were
required to be proved, it is scarcely possible that it was intended
a creditor might stand by with his claim, at the time fixed by the
Commissioners, or Judge for the hearing, and afterwards be let in
to receive a dividend. The permission to a creditor to except
to the report, and afterwards, on sufficient cause, to have a refer-
ence, is quite conclusive that he was concluded, if he omitted to
present his demand before the report was made up.
The act of 1843 evidently was intended to introduce a body of
rules, entirely new, to govern the proceedings in relation to insol-
vent estates. The mode by which the insolvency is to be ascer-
tained, the settlernent of the administrator with the Court in that
event, the nomination by the creditors of an administrator de bonis
. non, his appointment, or the retention of the administrator in chief,
in the event that no nomination is ma'de, are all specially provid-
ed for, and with much exactness. - '
58
458 ALABAMA.
HoUinger, et al. v. Holly, et al.
Then follows the particular section, which we are now to con-
strue. It is as follows, to- wit :
Every person having any claim against such insolvent estate,
shall file the same in the clerk's office of said Court within six
months after such estate is declared insolvent ; and every such
claim shall be verified by the affidavit of the claimant ; and the
clerk shall give a receipt therefor to the claimant, his agent or
attorney ; and shall endorse on such claim the day on which it
was filed; and shall keep a docket or list of all such claims, which
shall at all times be subject to the inspection of the administrator
and creditors of the estate ; and if no opposition shall be made to
the allowance of such claim, in the manner hereinafter provided,
within three months after the time when the said estate was de-
clared insolvent, such claim shall be admitted and allowed as a
good and valid claim against the said estate, without further
proof.
The manner of contesting the claims, is provided for by ano-
ther section, in these terms, to- wit ;
At any time within nine months after such estate shall be de-
clared insolvent, the administrator, or any creditor or creditors
of the estate, in the name of the administrator, may object to the
allowance of any claim filed against the estate, by filing in the
clerk's office such objection in writing ; and thereupon the Court
shall cause an issue to be made up between such claimant, as
plaintiff, and the administrator, or the contesting creditor in the
name of the administrator, as defendant, by pleading therein in
the same manner as if the claimant had sued the administrator
thereon at common law.
After ascertaining the manner in which the contest thus insti-
tuted shall be tried, the statute proceeds to declare that every ex-
ecutor, &c. of an insolvent estate, shall make a settlement of his
accounts as such, at such time (not less than nine nor more than
twelve months from the time such estate shall be declared insol-
vent,) as the Court may appoint ; and at such settlement the
Court shall adjudge and decree to such creditor whose claim shall
have been allowed as herein provided, his rateable proportion of
all monies then found due from the administrator ; reserving ne-
vertheless, in the hands of such executor, &c. a rateable propor-
tion of such monies for such claims as may be then contested and
undivided ; and a similar settlement and rateable distributioa
JUNE TERM, 1845. 459
HoUinger, et al. v. Holly, et al.
shall be made at least every six months thereafter, at such times
as the Court may appoint, until the estate shall be finally settled
and distributed.
When the act, from which we have made such copious ex-
tracts, is contrasted with the previous legislation, it will be seen,
that, formerly, the only opportunity given to the administrator or
creditors to contest the claim of another creditor, was at the final
settlement.
The act now in force, instead of this, gives the administrator
and creditors at least three months, in every case, to ascertain
the validity and correctness of every demand exhibited against
the estate or claimed from it Each claim must be filed within
six months after the estate is declared insolvent ; and if no oppo-
sition is made to it, within nine months from the same time, the
claim must be allowed.
Although the statute contains no terms which expressly bar a
claim which is not presented within the time provided, yet such
seems to be the result of the omission ; for the chief object of the
enactment would be frustrated if the creditors were permitted to
come in with claims after the period has elapsed within which
other creditors or the administrator are allowed to contest them;"
and the opportunity and time which is allowed, evidently for the
purpose of enabling those having an adverse right to examine in-
to the accuracy and validity of the several claims, would be ta-
ken ^way, if the claims themselves are presented only at the time
when the final adjustment and distribution of the assets in hand
is made. The practice which prevailed under the former sta-
tutes seems to favor this conclusion, and no instance is known or
remembered, in which a claim was acted on or allowed by the
Court, which had not been presented at the time fixed for the set-
tlement— whether that was made by commissioners or the Judge
himself.
It is supposed by the plaintiffs in error, that preferred claims
and judgments obtained against the administrator, or against the
decedent, form an exception to the general requirements of the
statute ; but there seems no room for -this exception, when the
general object is considered. It is possible the administrator,
may be liable to suit for a preferred claim whenever the assets in
his hands are sufficient to answer it; but however this is, it seems
certain whenever such a creditor comes into the special trijjunal
460 - .-v ALABAMA.
Hollinger, et al. v. Holly, et al.
created by the act, he comes as any other creditor, and is equal-
ly subject to have his claim examined and contested.
So too with the judgment creditor ; indeed, as to him, there is
an express provision of the statute, which seems to strongly for-
tify the general conclusion. It is provided that no suit against
the administi'ator shall be abated by the suggestion of insolven-
cy ; but when that is interposed, the suit proceeds on the other
issues to a final determination, and if the insolvency is ascertain-
ed, then the judgment is to be certified to the proper Orphans'
Court ; and upon a duly certified transcript of such judgment be-
ing filed as a claim against the estate, as provided hy the acty
then the plaintiff shall be allowed as a creditor, his rateable pro-
portion of the estate.
It is further supposed, that if the claims against the estate are
designated in the schedule, which the administrator is required to
present as a preliminary to ascertaining the insolvency, this
should be considered as equivalent to filing the claims themselves
in the clerk's office by the creditors, and the more especially
.when these claims are due to the administrator himself. The
answer to this is, that each creditor, under the act, has the right
conferred, to examine into the claim ol every other creditor, and
• can only ascertain who stands in this relation, by the assertion of
a claim in the manner indicated by the act. The creditors sum-
moned by the- administrator to contest the insolvency, may be
those whose demands are sufficient in amount to produce that
condition of the estate, but it cannot be known to other creditors
that they claim a participation in the assets, until they assert their
right in the mode'provided ; nor could any contest be originated
upon the schedule presented by the administrator.
The direction that each claim shall be verified by the affidavit
of the "claimant, does not seem to be of such a nature as to war-
rant the rejection of a claim for its omission, when no exception
is taken to the claim in the mode pointed out by the act. The
creditor or the administrator may doubtless require the claimant
thus to verify his claim, but if no exception is taken, there seems
no sufficient reason to reject the claim.
These considerations lead us to the conclusion that the provi-
sion of the statute requiring all claims to be filed in the clerk's of-
fice within six months after the estate is declared insolvent, is im^
JUNE TERM, 1845. 461
Bothwell, et al. v. Hamilton, Adm'r.
perative, and operates so as to entirely bar and exclude from
participation in the assets, all creditors who omit to do so.
When the principles here ascertained are applied to the seve-
ral claims of the creditors shewn upon this record, it will be seen
there was no error in rejecting those of Mudge, Fennel, Magee,
Hartwell, Clark, and Holly the administrator ; and that the claim
of Hollinger should have been allowed, as no exception was ta-
ken to the claim, when filed in the clerk's office, within the pro-
per time.
The writ of error, however, is irregularly sued out in the
names of these creditors jointly, and for this reason must be either
dismissed, or so amended as to make Hollinger the sole plaintiff)
and the administrator the sole defendant, as provided by the 14th
section of the act ; if so amended, the judgment of the County
Court, upon his claim will be reversed, and the cause remanded,
with directiojis to allow his claim.
BOTHWELL, ET AL. v. HAMILTON, ADM'R.
1. After a will has been admitted to probate, letters testamentary granted
thereon, and proceedings hadtliereon to a final settlement of the estate, the
propriety of the probate of the wUl, cannot for the first time be raised in
this Court.
2. When by a will a life estate is given to the wife in all the property of the
deceased, with remainder to the children, and the will is proved, and ad-
mitted to record, the Orphans' Court has no power to make distribution of
the property during the lifetime of the wife. Such a distribution, made
during the life of the widow, and at her instance, or by her consent, is not.
the act 6f the Court, but is in eflfectagiftof her life estate, and no matter
how unequal it may be, will not prejudice the interests of those in re-
mainder. - _
Error to the Orphans' Court of Jefferson. . * .•>
462 ALABAMA.
Bothwell, et al. v. Hamilton, Adm'r.
This was a proceeding upon the estate of Audley Hannilton,
deceased.
A will being offered for probate by Jane Hamilton, the widow,
on the 4th April, 1838, the Court directed a citation to issue to
James T. Bothwell and Ellen his wife, to show cause against it.
At a subsequent term of the Court, and after several continuan-
ces, theCourt made the following order, on the 23d October, 1838:
« William S. Earnest, one of the subscribing witnesses to said
will, being duly sworn and examined touching the execution of
the same, and he having to the satisfaction of the Court proved
the facts required by law to give validity to a will, it is ordered
that said will be recorded,as the last will and testament of Audley
Hamilton, dec'd."
The will is as follows :
The State of Alabama — Jefferson County.
I, Audley Hamilton, of said county, on this, the third day of
January, one thousand eight hundred and thirty-eight, of sound
mind, make this my last will and testament. My soul I return to
God, who gave it, and my body to the earth, to be buried in a de-
cent, christian manner, as my beloved wife may direct. My
children I wish equally, and well taught, the English language,
and in order to enable my wife, Jane Hamilton, to raise and edu-
cate my children, in the manner above stated, I will and give her,
all my personal and real estate, to be so managed by her, as she
may see proper, during her life, and at her death to be equal-
ly divided between my children. Except, however, a family of
negroes given her by her father, consisting of Esther, David,
Kitty, Tom, Bob, and Martha, which I wish to be" at her dispo-
sal. . By prudence and economy, I have money enough to pay
all debts ; the payment of them I leave to my wife ; and should
there not be enough, she may sell any property I have to raise -
funds for this purpose. In testimony of which, I subscribe my
name, and affix my seal.
.HIS
Audley ><| Hamilton, [l. s.]
MARK
In presence of Wm. S. Earnest, j , ,
H. D. Palmer, ^ - ^ ~^
N. G. Martin.
* Jane Hamilton, the widow, was appointed administratrix with
JUNE TERM, 1845. -463
Bothwell, et al. v. Hamilton, Adm'r.
the will annexed, and commissioners were appointed to appraise
the personal property, and also to divide the slaves among the
children ; also, an order for the sale of the personal property ex-
cept the slaves.
On the 25th February, 1841, the appraisers returned an in-
ventory of the appraisement of the personal estate, and of the di-
vision of the property :
To A. S. Hamilton, they assigned two negroes, valued at
$1,500, and other personal property, amounting in all to $1,973
To J. J. Bothwell, a negro girl, at $400, the hire of a negro
for seven years, $420, and personal property, amounting in all
to $1,116 50
To WiHiam C. Hamilton, two negroes, valued at $1,200
To C. T. Hamilton, two negroes and a horse, valued at 1,510
- To Frances S. Hamilton, two negroes, valued at 850
. To Elvira Hamilton, one negro, valued at 300
There is also found in the record, an account of the sale of per-
sonal property, signed by Jane Hamilton, to the amount of
$811 31, and an inventory of notes to the amount of $298 58.
Also, a list of articles said to bejetained under the will, amount-
ing in all in value to less than $259. .
On the 22d May, 1841, Jane Hamilton resigned her adminis-
tration of the estate, and on the 18th December, 1841, Andrew
S. Hamilton was appointed administrator de bonis non, with the
will annexed.
On the 3d October, 1843, he stated hisaccount, filed his vouch-
ers and made application to have the same allowed ; and final
settlement thereon made. The Court ordered that the settle-
ment be made on the- fourth Saturday of November next after,
and that publication be made, by notice set up at the court
house, and three other public places, notifying all persons to ap-
pear, &c.
On the 25th November, 1843, it being the fourth Saturday, the
following order was made. This day came Andrew S. Hamil-
ton, adm'r, &c., and made final settlement of said estate, which is
ordered to be recorded. Then follows a statement of the settle-
ment, by which it appears there is in his hands for distribution
the sum of $446 86, upon which the Court made the following
order:
By the final settlement of the estate of Andley Hamilton; de-
0 ^
464 ALABAMA.
Bothwell, et al. v. Hamilton, Adm'r.
ceased, this day made, there remains in the hands of the admin-
istrator, the sum of $446 86, and it appearing to the satisfaction
of the Court, that the widow of the said Audley has received the
full amount to which she is entitled under the will, and that he
left the following children him surviving, to wit : Andrew S.
Hamilton, Ellen, married to James J. Bothwell, Carter T.Hamil-
ton, Frances S., married to James Wilson, and Elvira S. a mi-
nor, who under the will are entitled to equal distribution. And it
appearing further to the satisfaction of the Court, that the said
legatees have received from said estate as follows, viz : [Here
follows a statement of the amount received by each as above.]
In order that they may be made as equal as may be, by the dis-
tribution, it is ordered, that the said sum of $446 86, be allotted,
and distributed to the said Elvira S. Hamilton.
From this decree Bothwell and wife prosecute this writ, and
assign for error —
■ 1. In admitting probate of the will, without notice, to the next
of kin.
2. The order requiring the sale of the personal property.
3. The order directing the division of the slaves.
4. The receiving by the. Court of the unequal and unjust dis-
tribution made.
5. The Court did not audit and state the account of the admin-
istrator de bonis non. ^
6. Forty days notice was not given as the law requires.
7. The Court erred in the final decree, and in*not appointing
a guardian ad litem for the minor.
. MuDD, for plaintiff in error, cited 4 Ala. Rep. 238 ; 7 Porter,
272 ; 1 Ala. Rep. 594 ; 5 Id. 473.
ORMOND, J. — The assignments of error present many ques-
tions which cannot be considered. No question can be here rais-
ed, upon the sufficiency of the probate of the will. After a will
has been admitted to probate, and has been acted on by the Court
without objection, the propriety of its probate cannot be inciden-
tally, and for the first time raised in this Court. The Orphans
Court may certainly, and of its own mere motion, repeal, or revoke
letters testamentary, and set aside the probate of a will unadvi-
sedly granted ; or, it may upon application confirm, or set aside
^ . JUNll' TERM, 1845. 46S
Bothwell, et aj. v. Hamilton, Adm'r.
a probate previously granted, and upon its action, or refusal to
act, a writ of errer may be prosecuted. But when, as in this
case, the probate has never been objected to in the Orphans'
Court, and has been the foundation of all the subsequent pro-
ceedings, it cannot be thus incidentally questioned. [Shields et
al V. Alston, 4 Ala. Rep. 248; Hill v. Hill, 6 Ala. Rep. 166;
Boyett V. Kerr, 7 Ala. Rep. 9.]
By the provisions of the will thus idmitted to probdte, and by
t the widow taking out letters of adrpinistration and thus assentmg
to the bequests, she became invested with th§ life estate in the
property conveyed by the will, with a VQsted ; remainder to
the heirs at law of the testator, who take a'S purchasers. The
Orphans' Court had therefore no jurisdiction to make the distribu-
tion, yvhich at the instaftce of the administratrix, it appears was
made among the heirs. This distribution is not the act of the
Coui"t, b.ut is the act of the adrpinistratrix, and if done at Her in-
stance, as appears tot)e the fact from liie record, is a gift of hep
interest^ to thc^e amongst whom the p'roperty was distributed.
The inequality of the distribution is. a mattefr which cannot be
questioned, as it does nofprejudice the rights of the -legatees, who
.V" take iK)'present interest under the' will, but at' the .death of their .
\ • mother will be' entitled to- their equal shate of the estate ; a right
which no act of her's can impair or abridge.' '
The Court was equaljy without jurisdiction to make the dis-
tribution", which it appears was made at th<d? instance of the ad-
ministratoi: de bonis non, as, by 'the will all the property of the
testator, roal and personal, was ySsled in the widow., during her
Ijfe,' with remahider to his heirs. • '* . \
TheSe considerations are detersive of thei case. No matter how
erroneous the action of the Coujrt may have been, as it had no
jurisdiction, its acts cannot prejudice any one, feeing merely void •
Let the jvrit of erroV be disptiisspd, there being no judgment of
which the plaintiff in error can complain. As it respects the de-
fendant in error, lie may, if he thinks proper, prosecute a writ of
error-to reverse the judgment which the Court rendered against '
tefls- ■ >■; . V ': . ' . • . . ;.•
- „ • ■ ■ • ' ' .
■■■.■■ 59- . . : ... ■
466 ■' \. ALABAMA.
. . Whitsett V. Womack, use, &c.
. ^ ;.^; ,^.-- T^ =-.•
WHITSETT V. WOMACK, USE, &c.
1. A statute provide'djthat where a steamboat, &c. was seized under process
issued upon a proceeding in the nature of a libel in admiralty, that'^
should be lawful for the mastdl, &c. to enter into a stipulation or bond,
with sufficient sureties to ans\<rer all the demands which shall be filed against
the boat, and the same shall be released and discharged from such lien :
JPurther, tlie clerk of. the Court in which the libel was filed shall take the
stipulation or bond; aiid it shall not be void for want of form, but shall be
proceeded, on and recoverqd according to the plain intent and meaning
thereof: Hdd^liisi a bond taken under this statute was neither void or
voidable, because it did not show that the obligors, or some one of th'em,
were claimants of the boat, or otherwise interested in the litigation I'es,-
pectingit; or because it was madQ payable to the officer who executed
the order of seizure, instead of the libelTant; or because it provided for
the return of the boat to the obligee,. in^ead of stipulating that the claim-
ant should pay the libellants such judgment as should be nendered on the
fibel; or because' it does not provide, that upon the payment, of sueh de-
cree as may be rendered, the obligors shall be discharged from their obli-
gation to return the boat..; Such a stipulation, if volunta^rily eilteripd into,
and not extorted colore officii, niay.be enforced, as a cpmmdn laW bond.
2. Where a statute requires a bond to be executed itf aprescribe(J form,, and
not otherwise, no recoveiy can be had on a bond professedly tdken undej
the authority of the act, if it does, not Conform to it ; but if a statute merely .
prescribes the fonA, without makiiig a prohibitign of any. ofjier, a bond
■ which varies from it may be good- at common laW^ So if part of the Con-
dition of a bond conform' to the statute, and pjirt does not, a- reccjvery may
be had for the breach. of the-former, where sojofiuch of the gon^titm as is
. fllegal is not wioZmwi in se. , ' '..,-•
, 3. A stferiff who has duly seized •goods, ijndef legal process, has a, special
property in them, and should privide ■ for their saft keeping. Where a
mode is provided by statute in which this may be done, and the appropri-
ate bond is taken, the officer is relieved fi-ora tiie obligation to keep it ;,&ut
where the statutory bond is not offered, h& may provide sonie other custo-
• • » dy — either retain the. possession himself, olc 'edmmit it to a bailee ; and if
■ the bailee execute a bond, it will be obligatory, although the plaintiff .will
not be bound to accept it in lieu of the officer's responsibility.
4. A bond which the declaration alledged ^as made payable to" a sheriff,
« did not state in totidejn verbis, that he was such officer : Held, that the un-
dertaking in the condition, 'tiiat the obligors should perform it to the obli-
4
^> -. JUNE TERM, 1845. 46?7>
— — .v.., ■ .."V.^v — ., : <, —
' W-hitsett V. Womack, use, &c.
gee,, or his successor in the office of sheriff, sufficiently indicated his offi-
cial character. Quere'? Would not the bond be prima fade good, so ap to '
devolve the onus of impeaching it upon the obligors, though it had omitted
to show who the obligee was, otherwise than by stating his name.
5. Quere'? Would a bond taken by a sheriff, who had seized a boat under pro-
cess issued upon a libel in nature of an admiralty proceeding, be void be-
cause he agreed tliat the obligors might navigate it to a point not very re-
mote, and unlade its cargo, as the master iiad undertaken to do. Or would
not tlie obligors be estopped from setting up such an agreement to Imppjr
their obligation ? • , * * ! '
6. Where the words of a bond were not sufficienliy explicit, or if litefalty
construed, their meaning would be nonsense, it must be construed in refer-
ence to the intention of the parties. . In doing this, it is allowable to depart
from the letter of the condition, to reject insensible words and' to Supply
obTTiolis omissions.
7. Tfhe obligors stipulated to deliver to the sheriff at a place designated, a
boat which h^ had seized under legal process, on demand, if a decree of
condemnation should be r^ndpred agfiinst it — the sheriff " having execu- '
tion then agapst :" Held, that the bond did not contemplate a demand at .
any particular place ; and that th6 form of the execution wliich-the sheriff
held when he made the denfend, "was immaterial ; if it was ope which war
rsfated the action of the sheriff against the boat.
8. The office of an ifiuendo is fp exj)lain, not to enlarge, and is the sameiin'
e^ect as " that^s to savj" whefher used f^r the piirpose of enlarging,- or
other unauthdr;z&d_^urposefj it is not issuable, ^.nd furnishes no warrant '
for sustaining a derhuri-er. to the declaration. * . * >
9. Parties w;ho hav^ entered into fi bond as the bailees ofproperty that had
been levied "bn by a deputy sheriff, cannot object that the deputy tran-
scended his powers, where the sherifThimself instead of objecting, affirms
-the act ; ' . ■
TO. The act of 1818, declares tjiat*all joint bonds shall have the same effect
in law as if they were joint and" several ; consequently, where a bond e?e- ,
cutcji y^y a number 'of persons requires that a 'demand of performance shall
be made in order to put tiiem in. default, itis enough to. prove a demand of
the obligof ..against .\yhom suit is brought '
11. In an action' upon a bond, if there i&^no issue which imposes upon the
plaintiffthe.onM5 of proving Its genuineness, it should not be rejected as- '"
evidence, because it has interlineations which he does not account for.
Perjiaps if it had been offered as ctideflce without 'having been made the '
basis of an action, and 1;lie interlineations' were Buch as to warr^t the sus-
picion tha^ they had been made ailer the l)ond was exefcuted, or without
authority, they should be accounted for. " '* . . '
468 ' - ALABAMA. - *
_ .-J — . ^ .
Whitsettv. Womack, use, &c.
■i«r
.i^
Writ of Error to the County Court of Sumter. ' i' ».<'-'.-
This was an action of debt, at the suit of the defendant in er-
ror against the plaintiff. The declaration contains five counts ;
the first alledges, that the defendant, together with John Hud-
dleston, (as to whom the suit is discontinued,) and Isaac Smith,
deceased, by his bond bearing date of the 7th of March, 1838,
bound himself to pay the plaintiff the sum of six hundred and eigh-
teen-dollars and forty two cents, on demand. Yet, &c. The
second coupt sets out that a bond of the same date and penalty
was executed by the parties,- payable on demand, subject to a
condition thereunder written, which with its recitals is to the ef-
fect following : Whereas, "Andrew Beirne, Lyle B. Fawcett
and John J. McMahon, then partners under the firm and style
of Beirne, Fawcett & Co. had prepared their libel ag9,inSt the
steamboat called the Triumph,' for the sum of three hundred and
nine dollars and twenty-one cents, the yalue "of certain goods,
wares and merchandize, to wit: twenty coils of. rd][^ and three
kegs of nails. On which said libel an order of? aeizur-e >had .is-
sued against said boat, her tackle, apparel and furniture, re-
turnablo to- the Circuit Court to be holden in and for said county
of Sumter, tit the court house thereof, on .the first Monday iii April
next, after the date of said writing, obligatory,- for further pro-
ceedings thereon, in Court. It;was».and is, provided that said-
writing obligatory should be void,..if said obligors, the jaforesaid
Huddleston, Whits&tt and Smith, should, in case judgment should
be recovered at the suit' of said libellants, m their said proceed-
ing against said boat,-hef t-ackle, apparel and furniture, produce
said boat, her tackle apparel and fumikire, to the said Womack,
or to his successor in office, [meaning such person as should suc-
ceed said Womack in the office of sherifTpf said county,] at the
port of Gainesville, where said boat then lay, [meaning at the
port of Gainesville in said county,] on demand therepf, at said port
by said Womack, his deputy, dr successor. in office, having exe-.
cution, [meaning thereby an order of $ale from said Circuit Court,
in said cause,] against said boat, her tackle apparel and furniture.
But otherwise, that said writing obligatory should be and remain
in full force and effect." It is then alledged, that pending the
proceedings upon the. libel, LyieB. Fawcett died, and his survi-
vors, Beirne & McMahon, ^t a Circuit Cou^t for Sumter county.
J--\.
JUNE TERM, 1845. ' 4^9
Whitsett V. Womack, use, &c.
commencing on the last Monday in September, 1841,. recovered
a judgment in said proceedings, for the sum 6f three hundred and
eighty-one dollars and thirteen cents, with costs of suit. After-
wards, on the 1st of November, 1841, an execution, in the form '
of an order of sale, was issued on that judgment against the "boat,
her tackle, apparel and furniture," for the sale thereof; which
execution, previous to the 23d November, came to the hands of
Mathias E. Gary, then, and ever since, sheriiff of Sumter, and as
such, successor to the obligee in the bond. On the last mention-
ed day, and while the said, execution was in full force and in his
hands^ said Gary demanded said boat, her tackle, .apparel and
furniture of the defendant, at the port of Gafnesville ; but the de-
fendant refused and neglected to deliver the same, or any part
thereof.; nor did Huddleston, the other survivor of Smith then
produce the same. • Nor was said boat, &c. then and there found;
•nor have they ever, since been produced and found — nor have
the Qbligees^Qrany of them, kept, or performed the condition of
their bohd,*but haye :jvholly failed, 6z;c. . '
The third count states, that Beirne, Fawcett & Co. commenced
their, suit by libel on the- 20th February, 1838 ; that the Triumph,
;her tackle, apparel. and furniture, were seized on the 7th J^Iarch
.thereafter, at the pQrt of Gainesville, as she. was on her passage'
and way upon th6 Tdmbe'ckbe, river, by the obligee, then sherifFof
Sumier. That the obligor, Huddleston, then clahning to be an
owner in said boat, with the absent of the libellants, executed a
bond, togethpr :^ith his co-obligors ^qs sureties ? conditionied, as
stated in the "second count, -that she might proceea on her way
and' passage, according to- its original destinaticm ; the penalty
and date of which bond lvere the same as statpd in the two pre-
ceding counts. . It is then,averred, tha;t upoji trbe execution and
receipt of said • bond, .^the plaintiff delivered <he boat, ,&.(i. to
Huddleston ; in other respects, this count i§ substantially the sam'e
asthe second." . . ;■.•.. .. ' •
^.^>T^e fourth couiit is similar to the third,. e;xcept that it.alledges
^' in addition, that- although the tond is. made payable to Wo-
. mack, yet it was in .faqt for the, use and benefit of the libell^nts.
Ijt is alledged in the fifth count, that the. bond with its condi-
tion, was made and gpfen by the obligors, as and for a bond Vf'ith
condition in form in such cage provided by ' law, and* was -taken
and received of them- by the obligee in the belief and expectation
470 ALABAMA.
Whitsett V. Womack, use, &c.
that such was its true character ; and in such belief and expecta-
tion the obligee delivered the boat, &c. to Huddleston. The
bond was voluntarily executed by the libellants, and its accep- .
tance assented to by the libellants. This count is in other res-
pects similar to the second.
The defendant demurred severally to each of the counts, and
his demurrers were overruled. In his demurrer to the first count
he craved oyer of the bond, and set it out in haec verba, viz:
"The State of Alabama, county of Sumter. Know all men by
these presents, that we, John Huddleston as principal, and John
C. Whitsett and Isaac Smith securities, are held and firmly bound
unto Jesse Womack, shei-iff of the county of Sumter, in sum of
six hundred and eighteen dollars and forty-two .cents to be paid
to the said Jesse Womack, or his certain attorney, or executor,
or assigns, firmly by these presents ; sealed with our seals, and da-^
ted the 7th day of March, A. D. 1838. The condition -of th^
above obligation is such, that whereas, Andrew Beii-ne, Lyle B. ,
Fawcett, and John J. McMahon, partners under the firm and style
of 'Beirne, Fawcett & Co. preferred their "libel against the pteam, '
boat callejl t]ie Triumph, for 'the sum of three hundred and nine
dollars and twenty-one cents, the value of certain goods,, wares,
and merchandize, to wit: twenty coils of rope, one keg pf.nails,
and two kegs of n^ils, whereon a,n order of seizure has • issued ,
against said boat, her tackle, 'apparel and furniture, returnable to.'
the Circuit Court to be holden in and for said county of Sumter^
at the ppurt house thereof, on the first Monday in April- next, for •
further proceedings in the premises. Now if the- said obligors
alcove named, shall in case judgment shall be recovered at the
suit of the said libellants, in their said proceedings against said
boat, her tackle,^ apparel and furniture, produce said boat, her
tackle, .apparel and furniture, to .said Wonjack, or hjs succcssoi's
in office, at the pQrt of Gainesville, where sbp npw lies, on de-
mand thereof, thdreat, by said Woniack,-by his deputy or suc-
cessor in office, having execution then agaiijst — rthen this obliga-, .
-tion to be void, otlierwise to remain in full force and effect.
'. . John Huddleston, (l. s.) .
• • • • . John C. Whitsett, (l. s.) , <
, ^ '"'' . Isaac Smith, (l. s.)**
"■ The declaration being adjudged gpod, the defendant pleaderdr-
1. Tbat* the bpnd Was taken^ without consideration. 2. That he
JUNE TERM, 1845. 471
Whitsett V. Womack, use, &c. ^
. ; Jl ■ .
had performed every thing on his part by the terms of the con-
dition required to be done and performed. 3. That he would
have delivered the boat, &c. at art^ time, if a demand had been
made by the sheriff, with an execution, but none was m^de, and
that the defendant has kept and performed his undertaking, &p.
4. That the Triumph was sunk by being snagged in the Chicka-
sawha, and has never been raised, so that she cannot be deliver-
ed. 5. That the Triumph was sunk by running against a con-
cealed snag, and has never been raised, &c.
The plaintiff replied by a brief denial of the truth- of all the
pleas but the second ; to that he replied, alledging breaches of the
condition of the bond specially ; but as no question arises upon
this replication, it need not be more particularly noticed. ^
J. R. Met/^alfe, for the plaintiff in error, made the following
points— ^1.' Each count in the declaration describes the bond as
payable to Jesse Womack, his heirs and executors, and the bond
doe's not show, that at the time it was taken there ,was any pro-*
cess in his hands, or that in virtue thereof, he had seized the boat,
&(i.;Vior-5Joes it appear that he -was a'sheriff, or other Executive
-officer.' 2. It. is not shown.by the bond that the defendant'was
tHe claimant of the*^boat, or "surety for the claimant. " 3. If the
bond in question wa^ intended as an official bOnd",.or td be^ paya-
ble to an officer as such, still it is illegal ; because it does not don-
form to the intention. 'A bond to an officer as obl/gee^ when it
should have been pays^ble to tTie plaintiff irr the §uit, is a nulllity.
[PiTrple Vs Pifi'ple,- 5 PJck. Rep. 226.} . A bond taken: by a she-
riff upon permitting a prisonef lo escape is void, [4. Mass. Rep.
374; 5- Id. 541; iTei'm Rep. 41-8,j and; upon the same princi-
pb, a bond given by a part^^ to an officer, upon receiving prppef-
ty from the latter^ ona.condition not prespribed by law, is alilv.e
• vofd..' la the condition of the bond, the, obligors 'undertaile to re-
turn the tpat to the f)laintiff,/in§tead o£fJix)viding that the claimant
shpuld.paythe libeHant such judgment 'as* should be rendered on'
the libel. '[Clay's Dig.- 130.] r ' The pbH^ors cannot be regarded
as. the mere custodians of the baat, .&c. for, the sheriff, if they
are nothing more than his bAilees^ thpn th^ were not authorized
to employ the' boat in the business of cav.ying. ,In respect td
-this identical bbiid, this Court hasNiepidcd that it did nqt release
the boat from the lien, and it was "^t within the jurisdiction of
:• ■ •••
472 "■ ALABAMA;.
Whitsett V. Womack, use, &c.
the Court, {2 Ala. Rep. 743.] From this decision it tesults,
that the bont was constructively in the possession of the sheriff,
and he might have taken it at any time. In Gayle v. Martin, 3
Ala. Rep. 597, a bond to the plaintiff, who released his lien, was
held to be good, but if the lien had still continued in force, it
would have been inoperative, in favor of the obligee, and could
not have been enforced against the obligors.
, i, 4. The law does not authorize any one but the claimant of the
boat to replevy, and another person cannot deprive him of his
right ; besides the. claim must be put in on oath. Here it does
not appear that any oath was made by the obligors, or that they
v-were claimants. Where, in a case commenced by attachment,
a replevy bond was executed by a person who was not the own-
er of the property, nor his agent or attorney, it was }\eld that
such bond was void, [2 Porter's Rep. 497,] both as a common
.^ law and statute bond. Here is a case analogous in principle to
"the present, and the reasoning upon which, it rests applies with
■ all, force. ' '
•• 5.. The condition of the bond is' insensiblcj uncertain, and the
obligation cannot be enfqi-ced. [2'3uls. Repi 133 ; Shep. Touch.
373.] While it provides for the delivery of the boat at, &c. to
the obligee, or his successors,>having..an executionj it Omits to
state against whom the execution is to be, (fee, and. what office
the obligee holds. . When the bond was considered by this Court
in this case, supra, it was hdd that the execution must be against
the defendants^ but the plaint jffs fdledge that it is to be in the na-
ture of an order of sale against the boat, &c. If the sheriffraeant
to take a -statutory bond, he must have iqtended'that the execu-
tion should have been a;gainst the obligol-s,^ .and they aVe substittt-
ted b.y law for the thing seized".- lihe inuendos as to the inean-.
iftg of this part of the. ponditjon, which is coiitaihed iri all flie
counts tut the first, is not. sustained by the-condition of the bond,
but adds to, arid cohtradicts it, which can rio more be dorie by
allegation than proof. The deela'raiioh is defective in ■ not al-
ledging that when 'the" boat wa,s demianded the sheriff Jiad an ej-; .
ecution against the obligors> •' ' "' .
6. The bond is objectionable for the further reason, that it '
does not pi'ovide, that ilp'ori the payment ol the amount of the judg-
ment, the obligors shall be relieved from the obligation to return
the boat 7.. The bt)nd eohteqnplates a demand of the obligors,
JUNE TERM, 1845. ^
Whitsett V. Womack, use, &c.
before they shall be liable for failing to return it, but the declara-
tion only alledges a demand of the defendant, without statiftg any
excuse for the failure to make it of Huddleston. 8. It appears
that the boat was taken by a deputy sheriff; conceding that the
obligee might make a contract which would bind him individually
in respect to property seized under process, yet a deputy could
not take upon himself to act as agent in suchcase.
9. The bond has several interlineations, and as these are fJSb-
surned to have been made after it was executed, and were not
accounted for, it should have been excluded as evidence. It is
misdescribed in the declaration, and defects attempted to be supf.
plied by inuendos which explain and add to it.
•
BALDwp, for the defendants in error, stated that the principal
question was, whether the bond was founded on a valuable con-
sideration,', and not opposed to public policy? If it was not ob-
noxious-.tO, either^ of these* objections, it was good as a common
law obligation, although it /did ifiot conform to the statute. The
. delivery of the boatlo the.principal obligor, was a^'siiffident coti-
s|deratiOD, and as -to tlfe objection -upoa the gro'und,of:poli^cyvfliiis.
believed to. be alike untenjable. '- • -• ' • / ^«
•Thec>ase of an indemnity to an officer not. discharging his du^
.ty,' is neither analogous in fapt,or .principle to the present. There,
the bond is' Void upon obvious grounds of policy.-; 'h<*re thg objec-
tion is to the form of* the security; arid not to- the consideration^ or
Inducfemenf which caused it to. be taken. Hejr<5 the sheriff cohi-?
raitted an honest.mist^ke, in endeavoring to disoharge a legal du-
ty, and the bond must be upheld. ■ '■■...-. t- .' ..
'I'he sheriff has. merely bailed th*e boat, '&c. to Hudtjleston-, and
all the obligors stipulated that; he should retyim it .in asceilahi
event. Nowif the event provided foi' by the condition has ac-
tually taken place, it is insisted .tiiat , the ^plkl has becom'e" ab&o- *
lute, and that the action is maintainable, *Wfiat is to hinder him
from bailing property levied on; it maj' b^ the*cheapest and safest
Hiode of taking careoflt; besides l^sjiabihty as an executive of-
ficer, to the plaintiff, still continues, and the bailee is responsible
'to him. The counsel of.the.'plaintifTin error.' seeks -to avoid the
effect of this argument by saying, that although the sheriff rpay
bail property he has seized, yet he cannot authorize the bailepto
use it. Now it will be observed, \that the declaration, (iJnLpss, it
60 '
474 ALABAMA.
Whitsett V. Womack, use, &c.
be the third count,) dops riot aver an authority to all or either of
the obligors to ply the boat ; and the 'bond itself is silent on this
point. But it is not admitt«ft that the sheriff might not employ
the boat, either under his personal direction, or through a bailee.
If she is injured by such use, he is responsible, but this is the only
consequence that follows. What rule of law inhibits a sheriff
from working a horse or slave which he has levied on, if he
treats him kindly ; especially when by so doing the costs are
lessened? , .
- As to the legal validity of the bond, see the authorities collect-
fed in 1 Pirtle's Dig. Tit.- Bonds ; 26 Wend. Rep. 502 ; -1 Wash.
Rep. 367 ; 2 Stew. 509 ; 2 Porter's Rep. 493 ; 6 Id. 414; 1 Ala.
R#p. N. S. 316 ; 3 Ala. Rep. 593.
As to the official character of the obligee of the bond, it is suf-
ficiently shown by the penal pari, of it ; in other respects the con-
dition of the. bond is not insensible; its meaning " mfiy be, aa*
certained by transposing words actually used, or. by supplying
others necessary to supply the obvious meaning of the parties.
The jconstrfiction given. to some'parts. of the condition, when this
case was here at a pnevious" term, \^as perHaps influenced by
the form of the transcript ; at any rate it was nbt a point in con-
troversy.. Bdt cdnceding .that the. language of the bond is sus-
ceptible of two meanings, aft6r verdict it -will be intended^ .that •
that allfedged in»the pleading w-as sustained by the proof. .
. The stipulation is to return'the boat^ this is" enough^ to show,
that the execution conten^plated, was to b,e against the boat, and
not against the obligors. It is admitted that the office of the
inuendo is to explain and defincj not to enlarge, and it is for this"*
purpose that it. is usjsd in the declaration — ^it is by no m^ans.
adrfiitted, that the declaration wduld be ^aftected if the inuendo^
wdre all stricken out. ...
Thd boodjby Ifegal construction, is joint and several, and though^
in -terms it may provide for a demand from the obligors, yet if it
ismade of either prie of them, as to him it Is sufficient But wag
any demand necessary^-was not the^service of the writ a suffi-
cient denpahd? • .
If the question really ariees, it is insisted that the deputy sherifT
had ail -the authority which his principal possessed, to bail the
boat.. But if the bond be good at-common law, the objections to
JUNE TERM, 1845. 476
Whitsett V. Womack, use, &c.
the declaration, at most go to the form of declaring,* and are not
a vailable on general demurrer.
In respect to the interlineations of the bond, arid its description _
in the declaration, it is enough to say that there was no plea de-^''
nying its execution, or the correctness of its description, but the
issues all admitted its existence.
Although the bond does not provide for the obligors' dis-
charge, without the return of the boat, it cannot be. doubted that
they may relieve themselves by paying the amount of- the judg-
ment upon the libel. • '
The omission to aver the value of the boat is not fatal on gen- .
eral demurrer; especially when it is averred that the plaintiffs
obtained judgment for a certain sum, and have sustained damage,
&c. These damages, it must be intended, were proved.
COLLIER, C. J. — ^It is said to be a general rule, that a bond,
whether reqfiirc.d by statute or not, if entered into yobntai-iiy,
and for a' valid consideration, and not repugnant to the letter or
policy of the law, is good af common law. [2 J. J.J^arsh. Rep.
418; 3ld.'437-8 ; I Ala. Rep. N. S. 310-; 3 Ala. Rep. 593.].' In
Sewall' V. Franklin, et al. 2 Porter's Rep. 493, this Court, after qn
extended "review of the authprities, concluded, that' « bonds taken •
by civil officers, and in relation to judicial proceedings, though
• witho.ut the authority of our statutes, (like bonds between iadivid-
uals tnder other circumstances,)- if they appear ta have been .
given on -valid and sufficient consideration, such ji's is nei-
ther illegal or immoral, may be good as common law b.orids."
T,he bond in that case did not conform to the statute, because it
was payable io the plaintif, instead'of the sheriff, andLalthoygh •
the Couri was dqually divided upon the CLuesti'on, whether it WQ^
operative, many adjudicaf ions were citqd "which'nfaintained, that .
when such a bond is excepted vcflqn^arily, it is good at com-
mon law. See 1 Call's Rep. 219 ; TMunf. Rep., 500 ;• 5 Massd
Rep. 314 ; 2 Stew. Rep.' ^9. But see Purple v. Purplo,'5 Pick.
Rep.22G. .....
Replevin, and other bonds required by statute hate frequently
been adjudged to be valid common law obligations,- though not
executed in obedience to the legislative direction. [7 Jplxn. Rep..
554 ; 2 Bibb's Rep. 199; 2 Litt. Rep. 30G ;. 4 Id. ,235 ; SMonr.
Rep.342; 4ld. 225; 5Mass. Kep..314.] ■
47C ' ALABAMA.
Whitsettv. Womack, use, &c.
.A Statute' of Kentucky required that a bond for building a
bridge should be made payable to the Commonwealth, but in-
stead thereof, the Justices of the County Court were made the
obligees. It wa«'held, that as there was «no statutory provision
making such a bond void," and the subject matter was such as
the parties had a right to contract about, the bond was valid, [2
J. J. Marsh. Rep. 473.]
- It is said that a bond taken by a sheriff, when the .constable
alone has the right to execute the process to which it relates, is
void. [3' J. J. Marsh. Rep. 181.] So is a bond given to an of-
ficer, in consideration of an act that he has no legal authority to
do. [3 Id. 621.J "Or'^as an indemnity to an officer to induce
him to perform a duty required of hinl by law. [5 Monr. Rep.
529.] Or to indemnify him for not returning an execution. [2
Bay's Rep. 67.] But jf it be given to a sheriff by one who
claims the property levied on by him, to indemnify him for not
selling, It is valid. [6' Litt. Rep. 273 ; ,2 Pick- Rep. 285.]
A bond taken of one in custody, by the officer who arrests him,
is unla:wful..and void. [2 Chi^. Rep. 11 ; 5 Masg." Rep. 641 ;
1 South. Rep. 319.] But a bond given for the prison liberties,
though not -strictly conformable to the statute, is_ not a bond for
ease and favor, and may be good at common -law,' [8 Mass.
Rep. 37S;'3 GreenLRep. 156; 5ld.240.] * "
If la. statute require that a bond shall be. tak^n in a certain
prescribed form, and not otherwise, no recovery can bchad there-
on, if it vary from the statute, or contain ' morfe than the statute
requires. [Gilpin's Rep. 155-] But if the 'statute does -not de-
clare, that the bond sliall not be takers in ahotjher form, a bojjd
hot conformable to thestatute may be good bythe commonla'w. [2
'Jr J.lMarsb. Rep. 473 ; 4Honr.vRep. 225 ; 4 Litt. Rep. 235.]
Where the^'authc^rity to take^a^'hond is wholly derived from the-
statute, if the bond be in a larger sun?\than is required, or on con-
drfions,. and be not voluntarily given by the obligors, it is void.
[7 Cranch's Rep. 287 ; 3 Wash. C. C. Rep. 10;] And so also»
is a hondi exacted h^ an officer, when he has no authority. [11
Mass. Rep. 11 ; 15Johns. Rep. 256; 2 J. J. Marsh. Rep. 418;
• 1 Leigh's 'Rep* 485.]' •
' 'A. bond variant froYn that presetibed by lav^, extorted from the
principal obligor and^his•.sUretie^,co/ore officii, it is said, cannot
be enforced. [8 Greenl. Rep. 422 ; 5 Pet. Rep. 129.]
JUNH TERM, 1845. 477
_ - _ . ^_ — .
Whitsettv. .Womack, use, &c.
If part -of the . condition of a bond conform to the statute
under which it was taken, and part does not, a recovery may be
had for the breach of the former, where so much of the condition
as is illegal is not malum in se. [Bates and Hines v. The Bank ; .
of Ala. 2 Ala. Rep. 484, 487; 4 Wash. C. C. lUp. 620 : 2 Bai-
ley's Rep. 501 ; 7 Monr. Rep. 317; 2 Green's' Rep. 479.] And
although a statute bond may not embrace every thing required to
be insej'ted in the condition, yet judgment may be recovered to
the extent of the brea(>h of the condition. [7 Yerg. Rdp. 17.1
■ A bond to indemnify against an unlawful act or omission al-
ready past, it is said, is not unlawful. [1 Caine's Rep,, 440.] In
Claasen v. Shaw, 5 Watts Rep. 4G8, it was determined that a
bond given by a stranger to a constable, who held an execution
against a third person, conditioned for payment of. the debt, in-
terest and costs of the execution, or the delivery of the property to
satisfy the same, at a certain time arid place, is not valid as a sta-
tutory obligation ; but is good" at common law. So where an
act, in relation to the prison limits was repealed, in March, 1821,
arid a bond to teep within the 'same Was taken in Novehiber of
the same year. The. bond was^payable to the creditor, as re-
quired by the repealed statute, which 'the parties supposed was
in iforce; an(5 the question was whether the bond* was valid. Jt
was objected that the bond was void on .the ground of ease and
favor ; but the Court said that the bond was payabl^> to the credi-
tor, and' was never Intended as a security to the officer. J^ur-
</ier„-the bondisnot void, because it restrains liberty,- and is thus
opposed to public policy. " The principles of the common law
glv6 validity to the bond. There is qo reason why the, bond
should^'not be good at commoitlaw, it having been' voluntarily en-
tered into for the benefit of the prihcipal, to procure a relaxation
of a lawful imprisonment, to which he could not be entitled with-
out giving bond, ^nd the bond being accepted by the obligee, he
is entitled to judgment. [Winthrop v. DockcndorfT, 3 GrCenJ.
Rep. 15G.] * • ■ . : ^ ^ ' . , . _
When a sheriff has duly seized gopds under a writ of fieri fa- '
ciaSf he has such a special property , in them as' to enable hirn' to
maintain trespass or trovpr. against any person who may take "
them out of his possession ; for he is answejable to the plaintiff
for the value of the goods, and the defendant is dischargpd frdm
the judgment, and all further execution, ^ the goods levi^^; wi
4^78 ALABAMA. .
Whitsett V. Woniq.ck,-use, &c.
amount to the debt, although, the sheriff does not satisfy the" plain-
tiff. [Watson's Sheriff, 191.] Further, it is said, that « the
sheriff may, if he please, take a bond conditioned to pay the mo-
ney into Court, on the return ofaji.ja. or to save him harmless
against a false return to aji.fa. — such bonds not being void for
ease and favor, under the statute of 23 Hen. VI. c. 9 ; that sta-.
tute extends " only to bonds given by, or for prisoners in cus-
tody on mesne process. But the sheriff, for releasing the defend-
ai^tfs goods, on taking a bond, v^^ould be liable to the plaintiff in
an action for a false return, and the sheriff must seek his remedy
over upon the bond." [Watson's Sheriff, 190.]
By the act of 1824, (Clay's Dig. 537-8,) proceedings. in the na-'
ture of a libel in admiralty are given for .the collection of certain
debts against steamboats, &c. And it is enacted, that if the mas-
ter, &c. of any boat, &,c. shall enter into stipulation or bond, with
sufficient sureties to answer all the demands, &c. against' the
boat, &c. the same shall be released and discharged from such
lien. Further, the clerk of the Court in which the libel is filed,
shall take the bond, or stipul£U;ion, and it shall not be void for
want of form, but shall be proceeded on and recovered according
to the plain intent and meaning thereof. ' . -
A subsequent statute, passed avowedly for the' security of-
«' merchants, mechanics and others furnishing materials or stores
to steamboats, ot other water craft, in the State of Alabama,"
enacts that- the claimants of a boat wl^ch has been seized,,
« may replevy by entering into bond with sufficient surety tp pay.
suah judgment as shall be rendered on the.libeL" [Clay's Pig»
139,, §23.] ' ^ -^ .
We have stated these principles, and cited some of the nume-
rous authorities by which they are supported, that it might be
seen how closely the law adheres to the . dictates of reason and
morality in carrying put the intuitions of -parties as evidenced by •
their contracts. If these citations are to be recognized as cor«-
rectly ascertaining the law, it is then perfectly clear, that tlie bond •
is not either void or. voidable, because it does not show that the
obligors, or some one pr mqre .of them^ were claimants of the
boat, or otherwise interested hi.the litigation respecting it ; or be-
cause it was notnjade payable to the hbellants, instead of ]the of-
ficer who executed the order of> seizure. It is clearly the duty
ofthesheriff to pro vide for "tlie safe keeping of goods which iie
JUNE TERM, 1 845. 479
Whitsett V. Womack, use, &c.
may seize under legal process. The statutes prescribe one mode
in which this may be done, and where the appropriate bond with
surety is executed, the officer is relieved from the obligation to
keep it. But it by no means follows, that these statutes were
intended to control the sheriff beyond what their terms indicate;
and if the bond they respectively require is not proposed to be
executed, he may provide some other custody. • Thus he may
retain it under his continued supervision, or if he think proper,'' he
may commit it to other hands, upon the be^ilee's undertaking,,
either with or without bond, that it shall be returned at some de-
finite time, or upon the happening of some event m the future ;
and such an engagement will be obligatory upon the baile<3, and
his sureties. True, a bond executed otherwise than as the sta-
tute directs, would not discharge the sheriff from liability to the
plaintiff, nor would the plaintiff be required to itistitute proceed-
ings there'on; Yet if the bond was made payable to the plaintiff,
it Is difficult to conceive of a well founded objection to the main-
tenance of an action thereon, in the event of a breach. Such a
suit would be the adoption of the act of the sheriff, and op«r£ite in
law, (at least between the obligor and obligee,) as-if the sheriff
had acted under an authority previously , granted by the latter;
and thus the obfigor would be estopped from insisting -upon the -
informality of the bond, or the irregularity of the sheriff's pro-
ceedings. . •
It is not' perhaps formally alledged, in some one ormoye o£tiie
counts that set out the condition of the bond, that the obligee Was
C^Lsheriff, or other officer, authorized by -process to seize the boat ;
yet this- substantially appear^ by the undertaking in the condition,
that the obligors should deliver it to his success:or in the pfficS of
sheriff, &c. Biit Would the bond. be;bad beCaUse jt did Qot dis-
close the -circumstances' uttder which itvAVas executed, or the au-
thority of the obligee for taking it ? ;Wou}'d not all presumptions
he indulged in favor of its validity, and iT it .is obnoxious to legal
objections, or is sustained by^no sufficient consideration, dt)es not
the onus of making this apparent, devojve upon the obKgoiJi?
These questions we think must te answered affirmatively*
True, the condition of the bond does not stipulate « to^ay ^ch
judgment as shall be rendered on the libel," but merely fol: the re- .
turn of the boat to the obligee and his succesS&rs.in the sheriffalty.
We should not suppose, if it were -not so alled^d in ofie count, .
480 ; ALABAMA.
Whitsett V. Womack, use, &c.
that the bond was intended to conform .to the statute ; but be this
as it may, we have seen that it imposes a common law obliga-
tion, if it was voluntarily entered into, arid is at least a good secu-
rity for the sheriff, against the obligors. Considered as the under-
taking of the custodian of the sheriff, the condition i& entirely legal
and it would seem most appropriate.
It does not appear from the bond, or the pleadings, that the
boat was bailed with the understanding that it was to be navi-
gated. In 9he or more of the counts, it is stated in substance,
that the seizure prevented it from being thus used, and by eom-
mitting it to the possession of the obligors, it was allowed to con-
tinue and complete its passage to the point of destination ; but it
is not alledged that this wasa.rhatter of stipulation between the
sheriff, or that it in any manner entere'd Into the contract of the
parties. Suppose however, that the obligee did assent to the
employment of the boat, can the obligors, after having availed
themselves of the benefit derivable from the contract, be permit-
ted to alledge its invalidity ? Or could there be any legal objec-
tion to, the navigation of the • boat; if the purpose was to go
to some point not ^Very remote, whero' its master had under-
taken to deliver goods, and there unlade ?• A contract cqn-
t6mplating,such an employment, it seems to us,; would oppose
no ruleof poHcy or law, and could not be prejudicial to either, of
the parties to the suit.
» There was nothing said by-us, when this case, was previously
here, that is decisive of any point ; now raised; True, we j-e-
marked, that 'fthe bond taken by the sheriff viri this case, is not
the one prescribed by the statute, and therefore the .lien was not
^scharged by it ; but continued' in full force, and the steamboat
is tob*^ considered as yet within the jurisdiction." This is no-
thing more than a declaration, that as the bond does not conform
to the statute, it did not rdlease the^boaffrom the right which the
pontiffs acquired by the seizure, to havelhe decree in their favor
satisfied by jts sale i or in othg- word^!, that the bond in question
did not, in virtue, of the statute^ irnxm to the plaintiffs, and was
not a s^bstitute for the boat. 'SThis proposition is not now con-
travrerted, ai;id is. entirely consistent with tlie idea, that the bond
i9^a'good common, law obligation. Does it follow that because-
tijie lien, upon the boat was 6ot discharged, that the bond was
gratuitously giy"(^ ? . ^ We think- not. The sherifi' may have giv-
■» > ■'^
JUNE TERM, 1845. 481
Whitse'it V. Womack, use, &c.
en some other equivalent for the engagement which the obligors
took upon themselves. Stich would be the leg&l intendment,
and the reverse cannot be presumed in the absence of a plea and
proof drawing the consideration in question.
In Cromwell v. Grundale, 12 Mod. Rep. 194, it was held, that
where the words of a bond are not sufficiently 'exj)licit, or where
their meaning if construed literally would be" nonsense, wo must
endeavor to discover the intent of th6 obligop,' and be guided
thereby. In giving a construction to a bond, the Court will look
to the intention of the parties at -the time it was-exccnted, and
expound it as the law thqn was. [Union Bank v. Ridgely, " 1
Har. & G. Rep. 324.] And the condition of the bond ought to
be so construed, by rejecting insensible words, as to fulfil the
intent of the parties. [Gdlly v. Gully, 1 Hawk's I^ep. 20.] The
Court may depart from the letter of the condition of a bond, to
carry into effect the intention of the parties; [Cook v. Grahani,
3 Cranqh's Rep. 229;. Minor, et al. v. The Mecljatiics' Bank. of
Alexandria, 1 Peter's Rcp»-4G.] . ., •' •
In Penny man v. Barry more, 18 Martin's Rep. 494, it was de-
tei^mined, that the words ^ fourteen huiidrcd and tei>,"in h bondv
may be understood to mean " fourteen hundied and tdh dollars/*
The cases here cited, rest upon a principle so reasonabfo^. and
well founded that their authority cannot be questioned ; applying,
them to the condition of the bond declared on, and there can be
HO difficulty in- adjusting its meaning. The undertaking of the
obligors as gathered ft'om the terms employed, is, that if the iU^
beHWnts- shall recover a judgment, or decree in the suit ' they
had instituted, against the steamboat Triumph, her tackle, &;c.,
then tliey would return her, with tackle, &c; to the obligee, or bis
successoi's in office, at the port of Gainesville, whore she then lay
— demand being made by theobligee,*or his*"sueces§or in o^cej
or Ihe deputy of either of them, having, an execution in HiS bands
issued. upoii the judgment or' decree. This exposition o»f tlie cop- ^
ditjon, seems to usVperfeptly clear, w-ithout'-doipg the least vio^
lence to the language employed. It was not contemplated that
a demand, should be made at any particular point; and the form
of the execution is wholly immaterial. If it was one that war-'
ranted 'the action of the sheriff against the boat, its sufficiency is
indisputable ; and as there was no stipulation* such as the statute
. ' 61 -',••:.•.. ..'' '.f ;-%.
483 » • Alabama.
Whitsett V. Womack, uscj &c.
requires, the most reasonable inference is, that it was process op-
erating in rem, and authorizing the sale of the boat.
The office of an inuendo in pleading, it is said, is to explain^
not to enlarge, " and is the same in effect, as that is to say." It
is used almost exclusively in practice, in actions for defamation,
and in such case the plaintiff cannot merely by force oi aniJiuendo
apply the words to himself. " The iriuendo means no more than
the words aforesaid." The introduction of facts under it will
not be deemed a sufficient averment of them; that which comes
• after it, is not issuable; if. an inuendo is repugnant, it may be re-
jected, or if intended to enlarge it will be treated as surplusage.
[4 Bac. Ab. 516 ; Corbet' v. Hill,, Cro. Eliz! 609 ; Dane's Ab. ch.
63, Art. 5 and 8, and citatipns there found.] It is immaterial then,
whether the inueijdo is used for the purpose of enlarging or oth-
er upauthorized purpose, it is not issuable, and furnishes no war-
rant for sustaining a demurrer to the declaration.
It is immaterial whether the bond ^was taken by the sheriff in
. person ; if the boat was bailed by a deputy, the inference would
be, that the act was authorized by the principal, or that it was
sanctioned and approved by him. In any event, if the obligors
had the bCQcfit of their contract, jjnd there was no effort by the
shejL'iff to disannul it, they cannot be heard to set up the "want of
• .i^uthority on the part of the deputy. • ' -
Let it be conceded that the bond contemplates;^ demand'as ne-
cessary to put the obligors at fault, and entitle tHe obligee: to
• wiaintaih an action against them, and still we think it clekr, that
' 'it is quite sufficient, if a demand has been inade of the defeftdtot
alone. .The statute of -1818 enacts, that" every joint bond shall
bedqemed and construed to have the sanje effect in law, as a joint
-and several bond; and it shall be lawful 'to sue out process and
proceed- to ■ judgijafent against any one or more of the obligors.
[Clay's Dig. .323, -§61;] --Thus we see that the obligors under-
took each" for himself and the others, -apd that the remedy of. the
obligee Js against cacli, or all, at his electiQil. This being tlie
lavi^j'we think'it will not admit of serious question, that a demand
of the jydrly sjiedy an.d a failure to cdrnply, entitled the plaintiff to
institute his action. .• ' ' .
Ih respect to the interlineations of the bond, it is perhaps
enough fo say, that ^here waS no issue which imposed upon the
plaintiff the owMs of ptoving its genuineness as declared on, or
JUNE TERM, 1845. , 483
'— ^ ——7 — ♦ -.
Hu^es, et.al.v. Garrett, etal.
set out on oyer, and we Cannot conceive that the plaintiff was
bound to account for its interlineations. If it had been offered"
merely as evidence, without being the basis of an action, then
perhaps, if the erasures or interlineations were such as to war-
rant the suspicion that they were made after the bond was exe-
cuted, or without authority, the obligee should account for
them.
This view is decisive of the cause as presenteH, and the con-
sequence is, that the judgment of the County Court is affirmed. ,
HUGHES, ET AL. v. GARRETT, ET AL.-
1. A surety in a claim bond, in which the principal is trustee for n. feme co-
vert, has no Equitable right to prevent the feme covert from removing th^
properly, covered by the condition of the bond, out of the ^tate, jtffevious'
to a forfeiture of the condition. ' " ^ »
Appeal ^om the Court of Chancery for the 39th District. ; ' s
• ■■'". ' . .' ' * '
The casje made by the bill is this : ' " " • ' '
Certain executions had been levied on slaves as the property
of Wai'-ner Washingtcm, a citizen of Cherokee county,;- which
-were claimed by William 'Gari'ett> jr., as trustee for Arianna
Washington, the wife- of ' Warner Washington ; and this Cldim-
ant, on the 9th August,.! 841, gave thd clafm Jbonds required 'by"
law, to which ho procured Hughes and McCluny, the complain-. ■
ants, to execute as his sureties. The suit growing out of this
claim is yet pending. . . ='' • .' .
One of the slaves covered by. the condition of the bond, •haa'''
been removed before the time of filing the bill, and the others
were then in the possession of Arianna Washington, the cestui',
que trust, and of her husband, who' were' about to remove thq
slaves out of the State, to parts unknown. That Garrett, the
claimant is insolvent, and connives at the removal of the slaves, or
484 ALABAlVlA.
*
Hughes, et al. v. Garrett, et al.
at least is unwilling to do any thing to prevent their removal, and
is. unable to respond to the complainant in damages, if the claim
is determined against him. The prayer of the bill is, for an in-
junction against removing the slaves out of the State, and for their
seizure, as in case of attachment, repleviable however if bond
shall be given for the delivery of the slaves, to answer the requi-
sitions of the law; when the claim shall be determined.
Gairett, Washington and his wife, the creditor at whose suit
the slaves were levied on, and the co-defendants of Washington,
in those suits are made parties defendant.
^ An injunction and attachment were directed by the order of a
Circuit Judge, but the Chancellor, on motion of the defendants,
dismissed the bill for \?vant of equity. This is assigned as e^ ror.
L. E. Pi^KsoNs, forthe appellants, admitted he was unable to
citq any case in which a Court of equity had interposed for a
surety, before the maturity of the engagement of his principal,
but argued, that relief was due in every instance of fi'aud, and the
removal of theslaves under the circurhstances set out in the bill
is. a fraud on the sureties. In Benson ' v. .Campbell, 6 Porter,
'4*57^ the .Court seemed to consideB that, a surety was entitled to
reliefj^ifthe principal is non-resident. If this was a debt, an at-
•tachment at the suit .of the creditor would lie, and there- is no rea-
son why the surety should not have a similar remedy in:ecfaity.
He also cited Rives v. Wilbome, 6 Ala. Rep., 47 ; Campb61l^v.
, "Macomb, 4 John. C. 534. .:■"... >
. '• W. B. Martin, contra. - :\''-' ' ..'■*'
, *' '." GOLjPTHWAITE, J. — It seems to us impossible to sustain
• tbis- bill, upon ^ any recognized principle of equity. The case
• ■■ iqade by the bill is, in effect, nothing nipre than a statement by
' . the complainants, t4mt.the Confidence they, bad in the integrity of
. the principal in the bond, when it was executed, has - ceasqd to
■ »~exist, and the only relief prayed, 6j: indeed which can be given, is,
■ that they tnay be indemnified By some xJounter security. It is
' " evidwit if such a course could be sustained, that every dissatisfied
Surety "vvbuld g6^ int6 equity for the indemnity which he might, in
■• the first instance,' liave stipulated for. There is no analogy be-
tween the principle asserted here, and that which governs bills
JUNE TERM, 1845. "^ 485*
Hughes, et al. v. Garrett, et al.
quia limet. Although these may be brought wlien the party
fears some future probable injui'y to his rights or interests, [2
Story's Eq 155,] yet it is believed no case has ever held, that
one would lie where the bill of the complainant dejicnds upon a
contingency which may never happen. It is said by the text
books, though, there are few cases in which a man is not entitled
to perpetuate the testimony of witnesses, yet, if upon the face of
the bill, the plaintiff appears to have no certain right, or interest
in the matter, to whicKhe craves leave to examine, in present or
in future, a demurrer will hold. [Mitford, 156 ; Story's Eq. PI.
§ 261.] ' . .
In the present case, it may be there never will be a necessity to
produce the slaves, as it is uncertain h6w the judgment will be
in the claim suit ; and until that is determined, the surety seems
to be entitled to no indemnity from his principal, in the absence of
all stipulations between thcnis One ground upon which equity
will permit a bill by a sui'cty to compel his principal to pay the
debt, or perform the duty after the maturity of the obligation is,
thqt then the principal is in default, and the surety is not requir-
ed to await the action of the creditor, because in the mean time
he may suffer irremedial injury. ' Though relief could doubtless
be had upon the^ more, general principle stated"" in the cases.
[Lord Randagh v. Kaynes, 1 Vern. 180 ; Lee v.. Rank, Mosley,
318.]. -
The case of Antrobus v. Davis, 3 Merrivale, 569, is very sim-
ilar to that made by this bill. There the Colonel of a Reg'iment
having^ taken a bond of indemnity from his agents, with arjOther.as
■surety, in respect to all charges, &c. to which he may becprpe lia-
ble by their default; thd" agents afterwards became bankrupt,
and the government having given notipe to the represcfhtativ^
of the Colonel, he being dead, of a deniand ;Upon his estate, by
virtue of an unliquidated ^Accourit, a bjll by his i\3^orQScntatives,
against the represerifatiVcs'of the surety, to pay the balance due
to the government,' arid also to set aside a sufficient sum oul'of
theit testator^s estate to ajiswer future contingent demands, wa^
dismissed, although atfernpted to be supported on th'e^ princiyjo
quia timet. Sir-William Gfarit, Mnstei- of the Rolls/ significant-
•ly asks the question, « Can' a siTi-ety say to hife priHciptil, bnng
money into Court, by vra^ Qf deposit, because it may cvtnttfally*
turn out that a debt may be found td' be tiue by the? pri^rfj^al,
ALABAl^A.
Gooden & McKee v. Morrow & Co.
for which the surety may become answerable ?" [See, also,
Campbell v. McComb, 4 John. C. 534.] If the answer is, that
he cannot, which we do not doubt, it applies equally to the per-
formance of a duty which is-contingent only.
Wc think the bill was propgrly dismissed, as it contains no
equity. Decree aifirmed.
. GOODEN & McKEE v. MORROW & Co.
''*.,-■ . '
1. Where three persons are sued as partners, upon an open account, in a£- ,
sumpsit, one against whom a judgment by default has been taken, is a com-
peten^t witness to prove that one of the defendants was not a partner, he
having pleaded the general issue. , . . ,
2. Thred persons being sued as partners, proof, that after part of the account
sued upon-was created, and the partnership dissolved, the retiring partner
paid tlie others a sum of money to cover his responsibility, for the firm
debts, is irrelevant and inadmissible. " - . »• •
•Error to the Circuit Court of Randolph. ' -
. Assumpsit by the plaintiffs, against the defendants in error, for;
money Had and received, &c. The declaration contains the com-
mon counts.
*Thed6fehdant, Morrow, pleaded the general issue, and pleas,
of sot off, failure, and want of consideration, and a judgment hy"''
default was taken, against CaTi^erOn .&• Lrikens, the other de-. ^
fondants. r , ■ , . '• • . ' '
Abillof ex;ceptions taken pending thetrid, discloses, that t'es-^
timony Was introduced, that |he defendants for four years were
pairtnerrs in the mercantile business, and wer6 also partners in the
business of ."gold miping, during Maxch, April, and a. part of ]\Iay,
1842 ; and that Cameron -was the active partner in milking pur-
chases-—thatCamei'on -& JtiikenSj purchased goods of the plain-
^^ '0
JUNE TEIIM, 1845. -487
Gooden & McKee v. Morrow & Co.
tiffs to the amount of.8200, which Cameron, in Februai^, 1843,
in writing, acknowledged to be correct
Thp defendant, Morrow, then proposed ta prove, by a witness,
the clerk of plaintiffs, that during a portion of the time, that the
account sued on v/as being made, the defendants were not co-
partners, and that the witness had heard of thQ* dissolution of the
partnership. To this testimony, under the pleadings, the plaintiff
objected ; also, because it was not competent testimony ; but tha
Court permitted it to go to the jury, and the plaintiff excepted.
The defendant. Morrow, also introduced the articles of co-part-
nership, dated 16th February, 1842, to which one of the plaintiffs
was a subscribing witness, between "himself, Cameron, Likens
and others, the material parts of which are as follows:
. First — It is agreed . by the parties to this instrument, that John
A. Cameron, be considered, and constituted, secretary and trea-
surer of the company, whose duty it is to contract for such ma-
terials as are necessary to the erection of the necessary machines,
that may be agreed on by the company. He- is at any time ne-
cessity may require, to draw on each one of the company for a
proportionate aniount of money to appropriate- to the ifse, and
benefit of the company, either for the erection of machinery, dig-
ging out the rock, or otherwise. And it is agreed, that each or
-any member of the company, who shall fail at any, or all- times,
to. pay over to the secretary and treasurer, his proportionate
amoant of money, shall forfeit his interest in the company to vthe
remaining members ; -provided always, that the secretary shill
give the delinquent a written notice of his default, and if he fails
fo pay over the sum required, his entire interest is forfeited to the
remaining members oiTthe company.
The second article provides the means, labor, &;c. to be-^fur-
nished by each of the partners. . ' v " .
• The third declares, that if either of the parties wish, to sell ©ut
his interest, he shall give the preference to the .re,maining-parfhers.
Signed and sealed. . ■'.,-... 'IIobe'kt Morrow, •
. »■ ' \ ....•'" ' John At Cameron,. ; ' .
.' " . . •. , J.L.Bennett,
• ■ . . . J . . ' : ..Conrad Hartwell^ ,
-.','• ' ' .' . Taos.' M. LiKtNs.
The defendant. Morrow, then offered as a witness, the 4efei)d'-
ant Likfens, against whom a writ of inquiry of damages was then
kit
#•
m
488 ALABAMA.
Gooden & McKee v. Morrow & Co.
pending, and who, against the objection of the plaintiff, was per-
mitted to testify, that in May,- 1842, Morrow sold out his interest
in the concern to him, for $200, and that on the 18th June, 1842,
Morrow paid to witness and Cameron J^225, to cover his pro-
portionate part of the liabilities of the concern, and that they exe-
cuted to him a receipt therefor, to which there was a subscribing
witness. The receipt was produced, but the subscribing witness
4o it not being' present, the plaintiff objected to proof of its con-
tents, or of the payment of the money by parol ; which objection
the Court overruled and the plaintiffs excepted. ' The witness
also stated, that he informed the plaintiffs of his intention to pur-
chase the interest of Morrow, and a few days after making it, in-
formed them of it; to which the plaintiff also excepted.
The jury found the issue in favor of Morrow, and damages
against Likens and Cameron. , The plaintiffs now^ assign for error
the' several matters embraced in the bill of exceptions.
- ' * ■ '- ^/■.- ■ ■ '■:','
Bo WDON, for the plaintiffs in error. ■• . ' -*
The rumor of th^ dissolution of the partnership, was not suffi-
cient to charge the plaintiffs; actual notice should have been
brought home to them, [Story on Part. 251 ; 2 Stew. 280.]* .
• The articles of co-partnership were not evidence against the
•plaintiffs. . ' ■ ■
Likens was an incompetent witness, being liable to Morrow
for the application of the money placed in his hands, to discharge
the, liabilities of the firm ; his interest therefore- was npt equcll'.
See l.Wend. 123; 4 Id 457; 4 HillN, Y. 549; 18 Pick. 29,;
3 Hill, 106 ; 2 Ala. Rep. 100 ; 12 PeterS,' H5 ; 13 Id. 219. '
T.he receipt was higher evidence than the parol testimony of
' its contents. . • ■ . ■ '
. S. F. Rice, contra. When this case was previously here, the
Court held Likens to be a competent witness, which is the law ^f
this case. Besides th.e objection -wag to the conjpetency ofLikens
to testify, and" not to his evidence when given in.
. A& the jury have not found that Morrow is not a partner, but
morely that he is not' liable, .this (Jef^ats the entire action; as he
must recover ' against all, unless he brings himself within the
statute. ' • ". - . "
ir.
JUNE TERM, 1845. 489
Gooden & McKee v. Morrow & Co.
ORMOND, J.— The case of Scott v. Jones, 5 Ala. R<^. 694,
is an authority in point, that the defendant Likens was a compe-
tent witness. In that case, as in this, the witness was a party up-
on the record — there, as here, a judgment by default had been
taken against him, and there as in this case, he was considered
competent to prove that his co-defendant was not a partner, be-
cause, in establishing that fact, he was fixing a liability entirely
upon himself, which otherwise he would have divided with an-'
other. The case cited also shows, that in such an action as this,
the evidence was admissible under the plea of non assumpsit.
It is also urged that Likens was an incompetent witness, because
he had received from Morrow a sum of money to extinguish the
liabilities of the latter for the firm debts, at the time of the disso-
lution, and that the testimony itself was incompetent evidence to
go to the jury.
It is certainly incontrovertible, that one partner cannot, by any
arrangement with his co-partners, shield himself from a li^^bility
to a creditor, created whilst he was a member of the firm. It is
distinctly stated in the bill of exceptions, that a portion of the aq^
count was created whilst Morrow was a member of the firm, Snd
for this amount he was certainly liable to the pldintifis. The
proof that upon the dissolution. Morrow paid to the continuiag
partners $225 to cover his proportion of the liabilities of the firm,
was wholly irrelevant, as he could not by such an act, prevent
the creiditors of the firm from holding on to his responsibility.
Being irrelevant, it should have been excluded, as its tendency
was to mislead the jury, and probably did mislead them, as we
find they discharged him from all liability, though a partpf the
account was created -before this arrangement was maxle. 'For
the portion of the account ci'eated previous to the dissolutiop,' thq
plaintiffs were clearly 'pntitleflito d. verdict.
We can perceive no. objection to the introduction of the articles
of co-partnership. They provided afnong other things, for the
mode of dissolving the partners&ip, and of these articles,^ as well.
as the 1act of the dissolution, it Appears from the testimony, thei'-
plaintiffs had notice. ; ' , ... • V '
These views being decisive of the ca^e, \t is unnecessal-y to
consider, the other questions argued at the baa*. " Let the judg*
ment be reversed and the cause reminded. • * •
.• . V 62 " •; ■'■ • . ■ "' '■ .•: .
*490 ALABAMA.
Renfro, by her next Jriend, Ex parte.
RENFRO, BY HER NEXT FRIEND, EX PARTE.
• • _.
1. A qause is not before the Supreme Court, so as ^o authorize that Court to
make an order in respect to it, until the term when the writ of error is re-
turnable.
2. The Supreme Court cannot set aside a supersedeas which has been issued
.upon the suing out a writ of error and executing a bond, on the ground of
• defects in the bond ; in such case the approprite remedy should be sought
in the primary Court
In this case the transcript of a record of the Circuit Court of
Macon has been presented, showing that since "the commence-
ment of the present term,' a writ of error was sued out by Reu-
ben KeUy, to revise a judgment recovered at the term of that
Court holden in the spring of this year, by Isabella Renfro, by her
next friend, &c. It appears that the writ is returnable to Janua-
ry, 1846, that bond with surety has been executed for the suc-
cessful prosecution of the same, and that the proceedings on the
judgment have been stayed in the meantime.
The plaintiff in the judgment, by her next friend, now moves t6
set aside the supersedeas, and for an order directing the clerk of
the Circuit Court to .issue an execution forthwith-, upon alledged
defects in the writ of error bond, which it is insisted, make it in-
^sufficient and void. "•
■ P. Martin, for the mo.tion. •. i ''! .
COLLIER,'-C. J. — The writ. of error 'being retumabte to the
next term, the cause is not now before us ; • and if it was, as the
bond" by which execution is*" superseded is consequential to the
wi;it of prroi*, and not at all essential to the jurisdiction of this
Court, itfe the appropriate duty ©f.the- primary Court to deter-
mine whether it is a sufficient warrant for e. supersedeas, and to
order, an execution to issue, if it shall be adjudged insufficient.'
In Mansony ex parte, 1 Ala. Rep. 98, we held that the jurisdic-
tion conferred.upon the Supreme Court to issue writs of "injunc-
tion, mMidamus, jfec." is revisory, and can only be exercised
where justice requires it, in order to control an inferior jurisdic-
t
JUNE TERM, 1845. 491
Taylor v. Acre. *
tion." And without undertaking to consider whether it w^s al-
lowable for us to award a mandamus to the ministerial officer of
another Court, we determined that we could not award it, for the
purpose of coercing the clerk of an inferior Cburt to issue £Ui exr
ecution on a judgment of that Court. Further,. thsit the proper
remedy in such case, is a motion to the Court below, for a man-
datory order to the clerk. This case is a conclusive authority
against the motion, and it is consequently denied.
TAYLOR V. ACRE.
1. When a suit by attachment is improperly c.ommenced'in the name of the
party to whom a note not negotiahle is transferred, yrithout indorsement,
instead of using the name of tlie person having tlie legal interest, and the
cause is afterwards appealed to the Circuit Court, the defect cannot then
' be cured by substituting the name of the proper party in the declaration :
Nor can the note be allowed to go to the jury as evidence under' the mo-)
liey counts in a declaration in the name of the holder, without 'progf of a
promise to jfeiy him the note. . .
'Writ of error to ihe Circuit Court of Lowndes.
* This suit was commenced by Taylor, against Acre, arid the.
process is an attachmefit, returnable bcforeajusticcof the peace.
Taylor had judgment, and. ^crte appealed to the Circuit Court,
where he filed a statement* in- the name of S, A. McMeUns, for
bis use, dcclarm'g on a promissory note for ^25, dated 6th Janu-
ary, 1838, payable -to S. A. McMeans or bearer.' This state-
ment was stricken from the "file on motion of the defendant, -cai
the ground that it '.made a change of parties.. The plaintiff
then filed a statement containing the common counts^ and under
this offe'red in evideniie the same promissory note which is^ des- .
cribed in the statement stricken out. This was excluded by Ifhe'
Court, the plaintiff not proposing to offer any evidence of the de-
fendant having promised to pay the same. •
"492 ALABAMA.
Taylor v. Acre.
The plaintiff excepted to these several rulings, and they are
now assigned as error. •
.. Doling, for the "plaintiff in error, argued, that the course pur-
sued was the only one open to the plaintiff. He could not pro-
perly swear the defendant was indebted to McMeans, when he
.himself held the evidence that the debt was transferred. Being
entitled to commence his suit by attachment, some means must
be provided to declare in such a suit, and here the only two pro-
per have been pursued. The introduction of McMeans as a par-
ty was a formal matter, which the Court should have allowed ;
or if this cannot be allowed, then the evidence of the note should
have been let in under the common counts. [Gillespie v. Wesson,
7 Porter, 459.] ' . , . •.. ■ .,.,.,
l^o counsel appeared for the defendant. ^
. GOLDTH WAITE, J.— This case is the same as that of Mof-
fat V. Wooldridgp, 3 StewaM, 332, and must be governed by
that decision, unless the circumstance, that the leading process
being attachment, creates a substantial difference. It is suppos-
. ed the-party holding th^ beneficial interest in a note, witliout the
legal title, must sue in his own name, as he is unable to swear the
defendant is indebted to the nominal plaintiff. We can perceive
ho difficulty in instituting a suit by attachment, which will notob-
tairi to the same extent, in bailable process; but in eitjier case the
■affidavit would properly be, that the defendant Wa^ indej^ted to
. the nominal, for the Ijenefit of the rerf/ party, and the bond would
■ fignform in its recitals to the- facts of thp cause.
. ", -The attempt to introduce the note,, under the statement filed
^ubsequQntly, was pYoperly repelled by the Court, under the cir-
• cumstances, for the plaintiff 'could not" be permitted to succeed,
without showing himself invested with' a legal right of action ;
and to make this out, a promise to pay the note to the party hav-
ing the beneficial interest was essential, in the absence, of an in-
dorsennent.
TherQ seerps to be no error ;in the record. .' Judgment' af-
firtned. "' .•',-. . • '; . ,.
JUNE TERM, 1845. 493
Walker v. Watrous.
WALKER V. WATROUS. •
1. A partition fence, between adjoining proprietors, is, under the statut^^e
joint property of both, and each is bound to keep the entire fence in good
repair. One cannot therefore maintain an action of trespass against the
other, for an injury consequent upon an insufficient fence.
2. If a partition fence is out of repair, and one of the proprietors will not aid
^in repairing it, the other may cause it to be done, and recover the value be
fore the appropriate tribunal, although viewers have not been appointed by
the County Court.
3. If adjoining proprietors enter into an agreement, one to keep up one-lialf
•the fence, and the other the other half, an action of trespass cannot bo '
maintained by one, against the other, for an injury caused by an insuffi
cient fence, but the remedy is fbr a breach of the contract. •
Error to the Circuit Court of Shelby.
• Trespass vi et armis, by the defendant against the plaintiff in
error, for injury done to the crop of plaintiff, by the cattle of the
defendant. '
The parties went to trial before the jury, upon the plea of not
, guijty. From a bill of exceptions found in the record, it ap-
• pears,- that the plantations of the plaintiff and defendant, were' se-
parated byn partition fence ; that one-half of this fence belonged
to each, and that the defendant's part was low, dilapidated, and
out of repair. It was alsoprovadthat the 'cattle of the jlefendant
jumped into the cotton field of \he plaintiff, and committee^ the in-
jury for, which damages were sought in this' action.
Whereupon the coiahsel of defendant, asked the Court to
charge, that before the plaintiff wa? entitled to recover, ha must
prove that ihe entire- partition fence was five feet high^ w*ell
staked and ridered, or sufHciendy locked, and so close,' that the
cattle in question could not creep, through.
That three household ei^s', yppn complaint being made by plain-
tiff to a justice, should have been appointed by the justice to view
the fence, and that th^r testimony was necessary to determine
whether the fence was lawful or ngt.
494 ALABAMA.
Walker v. Watrous.
That reviewers acting under the authority of the County Court
should h^vG found the fence insufficient, and that notice thereof
has been given to defendant.
All of which charges were refused, and' the defendant ex-
cepted. This is now assigned as error.
# T. A. Walker, for plaintiff in error.
ORMOND, J. — The decision of this case, must depend upon
the proper construction of the act of 1807, in regard to « fences
and enclosures." [Clay's Dig. 241.] The 4th section, which is
4;o regulate this enquiry, provides, that " For the better ascertain-
ing, and ' regulating partition fences, it is hereby directed, that
where any neighbors shall improve lands adjacent to each other,
or where aily person shall enclose any land adjoining to another's
land already fenced in, so that any part of the first person's fence
becomes the partition fence between them, in both these cases,
the charge of such division fenpe, so far as enclosed on both sides,
shall be equally borne and' maintained by both parties. To
which, and other ends in this law mentioned, each County Court
shall nominate, and appoint, so many honest and able men, as
they shall think fit, for each county respectively, to view all such
fences about which any difference may happen, or arise, and the
aforesaid persons in each county respectively, shall be the ^ol^
judges of the charge to be borne by the delinquent, or by both,j
or by either party ; / and of the sufficiency of all fences, whether
partition fences or others. And where they judge any fence to
be. insufficient, they shall give notice thereof to. the owners or pos-
sessors ; and If any one of the said owners or "possessore, refuse
the request of the other, and diie notice given by the said re-
viewers, shall Refuse to make or repaiV the' said fence or fences,
or to pay the moiety of the charge before made, being a -divrsion :.
fence, within ten day* after notice given, then, upon proof there-
of, before (wo justices of the peace, of the respe'ctive counties, it
shall be lawful'for the said justices, to order the person aggriev-
ed and suffering thereby; to- repair .the saidi^fence or fences, who
shall be reinnbursed his costs and charges, from the pe)"soh so- re-
fusing to make good the said, partition fence, or fences ; and the
paid costs and -charges sjiall be -ievied upon, the offenders goods
JUNE TERM, 1845. 495
Walker v. Watrous.
and chattels, under warrant from the said justice, by distress and
sale thereof."
This act was a most laudable and praiseworthy effort on the
part of the Legislature, to dry up the fertile sources of litigation,
and controversy, between neighbors, arising fi'om partition fences.
To accomplish this object, the act makes partition fences joint
property, equally belonging to the adjoining proprietors, and||||-
on each, and both, the duty is devolved of keeping them in good
repair. If one of the parties refuses to perform his portion of the
labor in keeping up the fence, and the fence is ascertained to be
out of repair, the other has the right to perform the labor him-
self, for which the statute affords him a prompt and adequate re-
medy.
It may be, that the County Court has omitted to perform its
duty by appointing the " honest and able men," who are to view
the fence and " be the sole judges of the chargcs'to be" borne by
the delinquent:" but this omission of-the County Court, to^ per-
form this important duty, does not repeal the law. Whether
they are appointed or not, a partition fence, whether it was ori-
ginally erected by one, or is the joint product of both the pro-
prietors of the adjoining lands, remains the joint property of both,
and upon each, and upon both, is devolved the duty of keeping
every portion of it in good repair. It results .necessarily, that
neither, can maintain- an action against the other, for an injury
caused by. an insufficient fence, because it is his own fence, which
it' Is his duty to keep in repair, and which, if either will not aid in
keeping up, the othe]f rtay repair at,his expense. •
If the viewers hav(^.not been appointed by the County Court,
the* insufficiency^ of tho fence could be established by thp proof of
witnesses ; 'and if upon iapplication by one adjoining proprietor to
another, he will not aid in repairing the fence, he may perform
the labor himself, and reooter the value, either before .a justice
oftHe peace, or in the Courts, of record, as the case may require.
. •• The bill of excoptiojis states,' that One half of the partition fence
belonged to each of the adjoining proprietors ; that the defend-
ants part was low and dilapidated, and out of repair, over which
the cattle of the latter'jumped into the cotton field of the plaintiff^,
and committed the injury complaijied of Ifby this we are to un-
derstand, that there was a special contract between these parties,
that one should keep up one half the fence, and the other the re-
496 ALABAMA.
Walker v. Watxoue.
maining half, it will not, in our opinion, vary the result, because
if that be the predicament of the case, the action should have
been for a breach of this contract. The precise object of the
statute was to' prevent these vexatious suits, which are so pro-
ductive of bad feeling among neighbors, and to provide a do-
mestic tribunal, which at little, if any expense, would settle these
controversies much better than they can ever be settled in Courts
■♦- dfJustice. An appeal to the Courts is effectually prevented by
making a partition fence joint property, as already explained, and
' if this law has been varied by a contract between these parties,
a suit should have been brought for its violation, and' not an ac-
tion of trespass, which, under the provisions of the statute cannot
be maintained.
It results from these considerations, that the Court erred in its
refusal to charge as asked for by the .defendant, and its judgment
is thej^fore reversed and the cause remanded.
COLLIER, C. J The act cited in the opinion of the Court,
provides, that partition fences made under certain circumstances
shall be kept up at the mutual expense of the persons whose in-
closures are thus separated ; but it neither expressly, or by- con*
struction takes from one of the parties whose grounds ha<^e been
trespassed upon, by the cattle of the other* in consequence of the
part of the fence which the latter should have repaii-ed, being di-
lapidated, tne right to maintain the action of trespass to recover
damages,; The remedy which the statute affords would not, nor
could have been'intended 'to repair siich an Injury.
Even if, as supposed by .my brethren, there was a contract be-
tween the plaintiff and defendant, that the partition fence across
which the Qattle passed, shouM be repaired by the' defendant, that
furnishes no defence to the g,ction,in me present case. In a suii
upon the contract, could damages be given for the trespass, or
would they be limited by the cost oif repairing? Be this as' if
mdy, lam satisfied that, if the action of^trespass isnottbe only, ij;
is maintainable as a cumulative remedy. These views lead me '
to dissent from the opinioii just pronounced. '■" .V"
• • *
.» ...-■■. y
\ ■■
JUNE TE:R]V1:,.1845.
497
Broadnax v, Sims' Ex'n
BUOADNAX v. SIMS' EX'R.
1. The testator bequeathed by his will to his children who were married, or
had attained their majority, property estimated at $1,190 ; the saine amount
to his younger children "in negro property," when they became of age ;
and to his younger daughters the same amount^ in the same description of
property, when they became eighteen years of age, or married. After
which the following clause was added : " It is my will, that all the proper^
ty that is not willed to my childrenj viz: negroes, lands, stock of all kinds,
farming utensils, household and kitchen fuirniture, or all of my remaining
effects that is now in my possession, 1 give unto my wife, E. S. during her
natural life, or widowhood, and at her death or intermarriage, then all the
property willed to her, to be sold, «nd equally divided amongst my above
named children. E. S, intermarried with T. G., and eighteen months
from the grant of lettei:^ testamentsury having expired, the husband of one
the testator's daughters, presented his petifibn, to the Orphans' Court, pray-
ing that a rule be made upon -the executor, requiring him to sell and dis-
tribute that portion of the testator's' estate, which was bequeathed toE.S.
during her life or widowhood : Hetd, that the estate in the hands of the ex-
e.cutor above what "^ras necessaiy to provide for the legacies was subject to
distribution, if the demands of the creditors have been satisfied, dr after
rfetaining enough for the payment of debts} the terms of the decrep should
'be^uch as will most certainly effectuate thq intentions ©f the testator, and
give to the children equal portions. ^ * ...-':■ .
Writ of Errpr to the Orphans' Court of Autauga. . . . " "
'The plaintiiTia error presented his petition to the Orphans*
Court", setting /orth that he w^s the husband of 3arah, op^ of the
daughters of the defendant'^ -testator, and was entitled, ii\ right
of his wife, to an undistributed share of..the decedeijit's ^Jate. In
thq' petition, the will is set out m eztensOf.fi^orh which it appears •
th^t the testator beC[ueathed tb'his cliildren who were marriM,oi*
had attained their majority^ property estimated at eleven hundred
and ninety dollars. He also gave to his younger sons, wii'en they
became of age,."eldvenhundi?edand ninety (dollars innegrp pro^
perty ;" and- to his daughters who were still in their minonty,.
"when they became eighteen years of age,' or married, property
of the sdme desQriptiori, ajid of thQ same value. The thirteenl^
clause is as follows : " It is my will that edl .the property that is
6S ■ '
i9d ALABAMA.
Broadnax v. Sims, Ex'r.
not willed to my children, viz: negroes, lands, stock of all kinds,
farming utensils, household and kitchen furniture, or all of my re-
maining effects that is now in my possession, I give unto my
wife Elizabeth Sims during her natural life, or widowhood, and
at her death or intermarriage, then all the property willed to her,
to be sold, and equally divided amongst my above named chil-
dren."
, It was shown that Mrs. Sims had intermarried with Theophi-
' lus Goodwin, that eighteen months from the grant of letters tes-
mentary had expired previous to the exhibition of the plaintiff's
petition, and that the will had been duly proved, &c. in the Or-
phans' Court of Autauga. The prayer of the petition is, that a
rulp be made upon the executor, requiring him to sell and distri-
bute that portion of the testator's estate, which was bequeathed
to Mrs. Sims, during her life, or widowhood. ' '
The executor admits the facts set out in the petition, affirms
that some of the sons of the testator provided for by the will are
under twenty-one years of age, and some of the daughters are
under eighteen and unmarried. It is therefore insisted that nei-
ther the petitioner in right of his wife, or other heirs or distribu-
tees, have a right to demand the sale and distribution of the pro-
perty, which their mother repeived under the will, until the young-
er sons and daughters attain the ages when they respectively
become entitled to their legacies. That the petitioner has re-
ceived the legacy given to his wife eo nomine, estijnated at eleven
hundred and ninety dollars, and cannot at this time claim more.
* The petitioner demurred to the answer of the executor ; his
cjemurrer was bv^rruled, and j[udgment rendered against the ap-
plication for a sale aid; distribution, and that Ihe petitioner ; ;pay
.cosis. ..■■»'■ ■."•■. • ' '
■ ' • ' < * .' " -y * / ■ •
V- . J. W; pRYOE, for the plaintiff in eiroit cited Clay^s Digest,
.196, §23. " ^ . . .i>.
■ ' ,■ - ■ "*>'','••'- V ', »■»'
I. E. Hayne, for the defendant, insisted that the legacies (Tid
not vest in the infant legatees in the Will, until the times appoint-
, ed for their payment respectively. The poHion of the estate then,
which vested in the widow, and to which, upon her death or mar-
riagej h^r children became entitled, cannot be ascertained before
these events. havd trans|rired'; an4' consequently it cannot be
JUNE TERM, 1845. 490
Broadnax v. Sims, Ex'r,
known sooner what has vested in the executor by Mrs. Sims'
marriage, which may be distributed ^eweraZ/y.
COLLIER, C. J. — The executor does not place his objection
to the distribution of the^property in respect to which the actidn
of the Orphans' Court is asked, upon the ground that it is not in his
possession, or that Mrs. Sims' sets up an adverse claim. We then
infer that Mrs. Sims has married, and thg.t the co9tingency has
occurred, which is provided for by the thirteenth clause of the
will.
In Marr's Exr'x v. McCuIlough, 6 Porter's Rep. 507, it i^ sta-
ted as a general rule, tl^at a legacy will be vested, if the testator
annexed time to the paymeid, only; but if to the gift, then it will
be contingent. But it cannot be inferred merely from the use of
a particular word, what the testatorfs meaning was, if from other
parts of the will, or the entire instrument, it appears tliat such a
construction would do violence to his intentions.
The testator, it will be observed, made no provision for the
maintenance of hi^ younger children, and must doubtless have
intended that they should have been supported by the proceeds
of some portion of his estate.' If might be supposed if their lega-
cies did not vest until the periods prescribed for their payment,
that the estate, rdal and personal, devised and beq^ueathed to their
mother, should be -charged with that burden, and that in the mean
time' she should retain what was ihtepded to make good their
legacies. But there is no necessity for resorting to 'such far-
fetched conjectures upon this point;, for the thirteenth clause it-,
self; would seem' tp indicate that it wjis not intended thai the por-
tions of the younger children should vest in their mother. ' AIL
the legacies specifically becfueathed are expressjy, excepted from
such a destination. It cannot be inferred that they were to re-
main with the execiit'of for a period longer than the law had ap-
pointed. Or was necessary tojcnable him to execute the ^royisi^ns
of the will, so fai* as they devolved on him. Under all these cir-
cumstances, we are^trongly inclined to think the legacies to the
minor children of the .testator vested before they are payable. '
But if the law were otherwise, the estate in the executor's hands
above what was necessgjy to provide for these legacies, is sub-
ject to distribution. If the demands of creditors have been sat-
isfied, or after retaining enough for the payment of debts.
50O ALABAMA.
Secor & Brooks, et al. v. Woodward.
We need not point out what should be the form of the decree
to be rendered in the present case. This must depend upon the
terms of the will. But we may remark, that eleven hundred and
ninety dollars should, beyond all contingency, be so secured, that
the sum may be invested for each of the younger children, when
they become entitled to the possession of it. In addition to that,
each oj the children designated in the will, are entitled to take
share andpkce alike of the property which may revert to the
estate by their mother's marriage. " .•"••^r'
The decree of the Orphans' Court, is reversed, and the catiSB
remanded. ' ' V
» i.
> .*i:>i«'; •<-?ssr
., SECOR & BROOKS, ET AL. v. WOODWARD.
J. A Court of Equity has no jurisdiction to injoin a judg^nent at law, merfely
because the process from that Court has not been serveti on the defendan^.
It is necessary further to" show, that the party, by the irregularity,, hag
been precluded from urging a valid defence. ^ .'. . i*. • *
* "iVVrit of Error to the: Court of Chancery" for.the 1st District. . •
■*" *f!uii case made by this bill is as follows :- ^'-.■•v>'' ^*-. 'X' '••-•/
• 'Woodward, the complain^pat, asserts that' S^'cor ^ Brooks,
for the use of'Huntington arid Lyon, 'llad recovered a judgment
■ against him in the Circuit Court of- Mobile county. That the
•writ in that suit was sued out against him and one Taylor, as
.partners, and the cause of action i^ stated thereoti as an open ac-
count. The writ, as to the complainant, was returned, not found,
but was not executed upon Taylor. At the time of suing out
this writ, no copartnership existed between Woodward and Tay-
lor, and One which had previously existed, had been dissolved,
and notice of the dissolution published, iwhich was known to the
JUNE TERM, 1845. 601
Secor d{. Brooks, et al. v. Woodward.
defendants, or some 'one of them. The first notice which the
complainant had of the judgment, was a demand by the sheriff,
upon an execution issued on it.
The bill prays an injunction, and makes the parties previously
named, defendants ; as also, Harris, the assignee in bankruptcy
of Secor & Brooks.
No answer was put in by any of the defendants, but they ap-
peared by counsel, and moved to dismiss the bill for want of equi-
ty. After a pro confesso decree, they again, at the hearing, urg-
ed the same matter, but a decree was rendered perpetually in-
joining the plaintiffs at lacw from proceeding on their judgment.
This is assigned a^ error.
Stewart, for the plaintiffs in error.
Campbell, for the defendant. -
GOLDTHWAITE, J.— There is no aHegation of any equity
in this bill which will authorise a Court to sustain it. There is no
pretence that the judgment is unjust, or that a defence could have
been made, or that one ever existed at law. ,
It is in effect, an attempt to question the correctness of the
proceedings in the Court of law, for the reason, that the process
in that Court was not served on the complainant. Now, we ap-
prehend that all Courts are capable of protecting their own suit-
ors against the consequences of irregularities committed either
by their own officers or by the adverse 'party . And inatters of
this -nature furnish no ground of equitable interpesitioH,' unless it
can also be shown that .the party has a just dpfence to" the action,
.which be h&s been precluded fro;n urging in the Court of law,, in
consequence of the supposed irreguhrity. [Bateman v. Willqe,
1 Sch. &L. 205.] . •■ ' <
. /The decfee mu^ be reversed; atid the bill dispdisscd.
■,■.•• <
602 ai:a"ba]Aa:
••
Lockhaxd v. Avery & Speed, use, &c.
■#
LOCKHARD v. AVERY & SPEED, USE, «fcc.
1. A note was executed on the 1st April, 1841, for Uie payment of $140, on
1st January after, with a memorandum underwritten " to be paid for when
started ;" held, that this was such an ambiguity as might be explained by
extrinsic proof.
2. It being proved that the note was given for a cotton gin, which the defend-
ant had the privilege of trying and returning if it was -not good — held, that
this was a condition for the benefit of the defendant, which he must take
advantage of by plea, and that the note might be declared on, as an abso-
solute promise to pay on the 1st January, 1842, without noticing the con
dition.
Writ of Error to the County Court of Sumter.
Assumpsit by the defendant' in error against the plaintiff, on a
promissory note of the following tenor ; .
$140. On the first day of Jahuary next, I promise to pay
Avery & Speed, one hundred and forty dollars, for value rec'd.
1 April, 1841. To be paid for when started. ^
' " Geo. Lockhard."
The declaration is in the usual form upon the note, as a debt
due the 1st January, 1842. Pleas, general issue, and failure of
consideration. , • ' ' .. ,'
. By a bill of exceptions, it. appears, that testimony -was introdu-
ced tentjing to prove, that the note sued upon' was giyen'for a
cotton gin, of Avery & Speed's manufabture, and that the note
was given upon the condition, to be paid for when the gin v^as
started, or set at work, and that if it did not perform well, a good
gin was to be put in its place, and that this was the purpose for
which the memorandum was placed upon the note. It was also
proved by a witness, that his farm joined .that 'of the defendant,
that he did not know, or believe, that defendant had any gin run-
ning upon' his plantation up to the' time tliis suit was brought.
Upon this testimony, the defendant move^ the Court to charge,
that if the testimony was believed by them, the note was variant
from that despribed in the declaration, and the plaintiff could not
JUNE TERM, 1845. 503
♦ Lockhard v. Avery & Speed, use, &c.
recover in this action, which motion the Court refused, and the
defendant excepted — which is the matter now assigned as error.
Smith, for plaintifFin error, submitted the cause. ,-*..
, ORMOND,J. — The question presented upon the record, by
the motion to exclude the note from the jury for a variance, is,
whether the note is described in the declaration according to its
legal effect. It is described as a note falling due on the 1st Jan-
uary, 1842, disregarding the memorandum attached to it, " to be
paid fbr when started.'' This memorandum, without the aid of
extrinsic proof, is without meaning, and neither anticipates or
postpones the time of payment agreed upon in the body of the
note. It^ppears therefore to belong to the class of latent ambi-
guities, and open to explanation.
By reference to the proof, it appears that the note was given
for a cotton gin, and that by the agreement of the parties, the note
was to be paid when the gin was « started," or in other words,
when the gin was set at work, and that if it did not perform well
another was to he substituted ik its place.
The intentioji of the parties doubtless was, that the defendant
should hctve an opportunity of trying the gin, and ascertaining, its
qualities, before he could be called on for payment. This was
,clearTy a condition inserted in the contract, for the benefit of the
defendant, and if the contingency had happened contemplated in
the condition, that the 'gin"*upon trial did not answer the purpose,
he should have pleaded it in abatement, or bar, as the case might
have requiced^ The plaintiff was not bound, to notice the condi-
tion, biit might declare upon the positive undertaking of the 'de-
fendant, to pay by the 1st January, 1842. "• In the case of a pen"al
bond with pondition,.the plaintiff may declare on the penalty with-
out noticing the condition, and between that, and the present case,
the analogy seems complete. ' We think therefore the Court. did
not err in refusing to exclude the note from the jury for a variance,
add its judgment is. affirmed. _
1r
604 ^ ALABAMA.
Anderson v. Snow & Co. et al.
ANDERSON V. SNOW & Co., ET AL.
1 . The contents of articles of partnership cannot be proved by the testimony
of a witness who states that he saw such a paper subscribed with the de-
fendants' names, and apparently attested by two other persons as subscrib-
ing witnesses, but witli the hand- writing of all whom he was unacquainted.
2. A partner, or joint promisor, who is not sued, is a competent witness for
his co-partner, or co-promisor, where he is required to testify against his
interest ; and where such evidence is within the scope of the issue, the
Court should not assume his incomjpetency, and reject him in limine.
8. Where the bill of exceptions merely states that tlie defendant offered to
show the contents of articles of copartnership by a witness, and that the
plaintiff's objection to the evidence was overruled, the fair inference is,
that the objection was made because it was not shown that the articles
' could not be adduced; consequently the evidence was improperly ad-
mitted.
4. Evidence was adduced to show that a private stage line had been stopped
by the attachment of its " stock," at the suit pf one, of the defendants.
Whereupon that defendantwa^permitted, upon pyoofpf the loss of the ori-
ginal, to give in evidence "the record of a mortgage," executed to him by
one of the alledged proprietors of the line : Held, that it can't be presumed
that tlie mortgage was inadmissible ; and the registry in the office of the
"^ clerk of the County Court was admissible as a copy.
• ■ t ' . •
; Wr|t of Error to the Circuit; Court of GhamjbejTS*
■:;:.': .^'' ■' ' ■ ■ ■ 'r\ ... ' ■ ' '/•"." , .■; - . '
* ^His;wasan aStion ofassurtipsit, atthe-suit of the plaintiff in
errbir, against the defendants,' who are, charged as partners in
.running the Defiance line of stages, under the name and style of
W. W. Snow &Co. The declaration ^lledges that the defencl-
ants are indebted to the plaintiff in the sum qfone hundred and
thirty-three dollars and twenty;eight cents for keeping and feed-
ing stage horses belonging to the deiendarits; and also for so much
money paid, laid out and expended, at their special instance and
request. The writ was executed on , Snow, Aikin and Havis,
and returned not found as to Robinson and Thompson, the two
other defendants against whom it was sued out.
Aikin appeared and pleaded — 1. Non assumpsit. 2. That he
y^s. n©t a, partner with the other defendants who were sued
JUNE TERM, 1845. 509
Anderson v. Snow & Co. et aJ.
. with him. A judgment by default was rendered against' Snow
andHavis; issues were joined on Aikin's pleas, and the cause
thereupon submitted to a jury, who returned a verdict for the de-
fendant, and judgment was rendered accordingly.
A bill of exceptions was sealed at the instance of the plaintiff,
which presents the following points : 1. A subscribing witness
testified that h,e was present when the several defendants enter-
ed into articles of co-partnership, for the purpose of rtinning the
Defiance line of stages; shortly after the articles were signed,
the defendant, Snow, who was appointed the general agent of
the company, purchased stock. That the line soon after, viz : in
1^42, went into operation, and continued until the summer of
1843. Evidence was adduced tending to show, that subsequent
to the execution of the articles of partnership, the defendant, Ai-
kin, had them in his possession. Notice was given " to two of
the defendants to produce the articles of co-partnership, and there-
upon secondary qvidence was offered as to their contents. To
prove which, a witness testified that he aided Snow in making
purchases fof the benefit of the stage line ; that he saw articles of
co-partnership signed with the defendailts' names, and attested
by two witnesses,l)ut he stated that he was not acquainted with
the hand- writing pf the parties." To tho testimony of this wit-
ness, the defendant objected; hils objectiQn was sustained, and the
plaintiff excepted. " .
2. The defendant then offered one-tovelace as a w]fness,whpm-
it was "shown was one of the firm of W. W. SnoW & Co., though
he wa? not sued in this action. ' To this witntigs the plaintiff ob-
jected, because he was interested; thereupon the defendant, Aikin,
. deposited in the clerk's office a sum of money sufficiently large
to cover the aniQiint of the judgment that might be recovered,
and also released the witness. The plaintiff still objected to the
competency of the witness," but his objection was overruled, and
the examination proceeded ; whereupon the plaintiff excepted.
3. The defendant offered to show the contents of the articles
of co-partnership, ^nd was 'permitted to do so, in despite of iatr
objection by the plaintiff, who thereupon excepted.
^ 4. Evidence was bflfcred by the plaintiff, to show that the stage
line was stopped by an attachment of the stock of tlie company
at the suit of the defendant, Aikin. , In reply to which Aikin was
permitted to give in evidence .'' tho record of a Mortgage/' execu-
64
506 ALABAMA.
Anderson v. Snow & Co. et al.
ted to him by Snow — the loss of the original being established. .
This evidence was objected to by the plaintiff, but his objection
was overruled, and thereupon he excepted.
-E. W. Peck and L. Clark, for the plaintiff in error, insisted
that Lovelace should not have been permitted to give evidence
fo:Cthe defendant; that he was, as a partner, liable to contribu-
tion, and the deposit of money could not make him competent.
[See Ball v. The State Bank, at this term.] The release was
ineffectual for the purpose intended. Aikin could not remove
the objection to the witness; if it could have been done, all the
partners should have joined in signing and sealing the release. » ,
J. E. Belser, for the defendant, contended that Lovelace was
a competent witness for the defendant, even without a release, or
the^ deposit of money. [5 Ala. Rep. 383; Id. 694; 6 Id. 715;
1 Id. 65.] But if he was incompetent, the deposit of the money,
and the release, without objection by him, removed all objection
to him. [5 Ala. Rep. 508 ; Ball v. The State Bank, at this term.]
The copy of the mortgage from the record > was admissible as
secondary evidence, the Joss of the original being shoW;n.
COLLIER, C. J. — :!. The testimony of the witness who wad
offered to prove the contents of the articles of partnership Was
properly, excluded. True, he saw such a paper in the hands of
one of the parties sued in this action, but he could not say that it
was signed by them, or by their authority, as he was unacquainted
with their hand-writmg. It was necessary, to establish its genu--
ineness— 4his fact could npt be ' assnmed, in the absence of all
proof to the point. ■ ' ' . .
2. It does not appear what facts the defendant proposed to
■prove by Lovelace, but he was rejected by th\3 Court zw limine,
thus declaring his incompetency to give eyidence to any matter
within the issue. The cases cited, by the. defendant's counsel''
from the first and fifth Alabama Reports, we 'think, Very satis-
factorily show, that a partner, or joint promisor, who is not a
party, is a competent witness for his partner^ &c. where he is^
called to testify against his interest. However extensive may
have been the. inquiry tolferatgd by the pleadings, ihafact of the
defendant being -a partner, and liis consequent liability, were ex-
JUNE TERM, 1845. 607
Anderson v. Snow, & Co. et«il.
plicitly put in issue. To prove this fact, Lovelace was certainly
competent. He was not joined as a defendant to the action, and
if he was a partner, he was interested in the plaintiff's recovery ;
for whether the plaintiff was successful or not, he might be called
on to contribute to the satisfaction of the judgment, yet his con-
tribution would necessarily be larger if it should be dcternii?jed
that the defendant was not also liable. This conclusion is so ful-
ly supported by the cases referred to, that to attempt to reason
further upon the point, would be the mere reiteration of what is
there said. In this view of the question, it is unnecessary to con-
sider, whether the release or deposit of money by the defendant,
could, if the witness were interested, make him competent.
3. The billof exceptions merely states that the defendant offer-
ed to show the contents of the articles of co-partnership, by the
witness, Lovelace, and the i)laintiff's objection to the evidence
was overruled. Now this may, or may not, have been admissi-
ble, according to the circumstances, and as the record is entirely
silent upon the point, we pannot jinow whether any foundation
was laid for the introduction of secondary proof; but after mak-
ing eveiy presumption which can reasonably be indulged against
the party 'excc[)ting, we think it would be too much to intend
that the proof of the loss was shown. The^most natural infer-
ence is, that the objection was made because it did not appear
that the articles of partnership could not be adduced.- The proof
offered by the plaintiff to let in Secondary evidence upon this point
could not avail the defendant anything ; for it was ifisufficicnl
to prove a loss, but was entirely consistent with hia possession
of the writing. ' .. •. , ' ..' ^
4. It may be assumed that tiie mortgage jvas admisBible, as
there is nothing to show' the contrary, and the Court so ruled.
This b<?ing the case, and. the loSs of the original being establish-
ed, the Qppy transcribed upbp the records of the County Court
was comjietent, because it was as good as any secondary proof
that could be adduco.d, and is made evidence by statute. [Clay's
Dig. 155, § 25.]
It follows from what -has been said, that the judgment of thfe
Circuit Court must be- reversed, and the cause remanded. .
/.
608 ALABAMA.
Elliott V. Hall.
ELLIOTT V. HALL.
1. The County Qqart has no jurisdiction of an action of trespass qnare
dausvm /regit.
Writ of Errpr to the County Court of MoBUe.
• The writ is at the suit of Hall against Elliott, and requires the
latter to appearand answer to the" plaintiff in a plea of trespass.
The endorsement upon the writ is, that the action is brought to
recover damages done by the defendant to the plaintiff by re-
moving locks and portions of locks from the doors, and otherwise
injuring the plaintiff's house.
The declaration is in trespass, Jbr breaking and entering into
a dwelling-house of the plaintiff in the city of Mobile, and avers
that the defendant took and held possession of the house for a long
space of time, and thjyt he then and there broke open divers doors
and windows belonging to the said dwelling house, and remov-
ed-, damaged, broke to pieces, and spoiled divers locks belong-
ing to said doors, and wherewith the same. were fastened, and
other wrongs, &;c.
The defendant came in proper person, and pleaded that the
County Court had no- jurisdiction of a ple'a of trespass qu'are
clausum f regit, and thus, &,Q. Wherefore he prayed judgment
if the said Court ought or would take further cognisance ojf the
cause. • ' ' • - ■• ' • . •
TBfe Court overruled this plea, 'and. thereupon the plaintiff's
] (Jamages were assessed by a jury,^ and a judgment rendered for
" ' the amount as assessed. . * -
The defendant assigns here as error, ♦ • •
> L The overruling of the plea to the jurisdiction.
2. In ascertaining the damages without first finding the de-
^ fendant guilty of the trespass.
3. That the verdict and judgment do hot conform to the ac-
tion.
K, B. Seawell, for the. plaintiff in error, argued, that the act
f . '#
JUNE TERM, 1845. 509
Elliott V.Hall. ^
of 1807, [Dig. 297, § 5,] expressly excludes jurisdiction in actions
of trespass, quare clausum f regit ; and though afterwards, by
the act of 1819, the County Court is invested with concurrent ju-
risdiction with the Circuit Court, of actions of trespass, this must
be understood of the action of trespass, in relation to injuries to
personal property. Several statutes indicate that the Legisla-
ture generally uses the terms trespass, and trespass quare clausum
fregiti as entirely distinct. [Digest, 320, § 43 ; Id. 297.]
The act of 1819 does not repeal that of 1807, [Dwarres on
Statutes, 574, 699, 700, 701 ; Dose v. Grey, 2 Term,3G5i 11
East, 377 ; Foster's case, 11 Rep: 63.]
The vdrdict qnd judgment do not respond to the action. [Moo-
dy v. Keener, 7 Porter, 218.J
Campbell, contra, insisted that the act of 1819 confers a gene-
ral jurisdiction over all actions of trespass. There is no reason
why the County Court should not have this jurisdiction, as the
title rarely comes in question in this form qf action. But the ac-
tion here is not confined to the breaJiing and entry of tHS house,
but is also to iredover for the injury done to the goods and chat-
ties.
• The plea is bad, because it assumes to answer the entire ac-
tion, but in truth, only answers a part. [1 Chitty's Pleading,
163, 523.]
■ GOLDTH WAITE, J.— When the County Court was estab-
lished in 1807, it was (Excluded fcom all jurisdiction over real ac-
tions, actions of ejectment, and. of trespass quare clausum fre^U
[Dig. 207, § 5.] When tPiis Court was rfcconstituted in 1819, it
was iQvested with concurrent jurisdiction with the Circuit Court,
of all actions of debt, assumpsit, case, covenant, trespass, and as-
sault and battery." [lb. § 7.] We think the evident intention oi
the Legislature, by the use of the term trespass in this connexion,
was, to invest the Court with jurisdiction of the action of trespass,
as a remedy for injuries to personal property, and that the exclu-
sion prescribed by the act of 1807, yet continues. Ih many of
the States, trespass.ryTMiire clausum fregit is the common action in
which the title to real estate is determined ; and even with us is
permitted for that purpose. Whatever reason may have induc-
ed this exclusion in the first instance, it seems clear that no attempt
610 ALABAMA.
Hall V. Montgomery.
has ever l)ccn made to authorise that Court to take cognizance
of suits involving an enquiry into the title of land. In the form of
action here presented, this might form the prominent subject for
investigation, as the defendant, under the general issue, would be
permitted to show title in himself ; and by a plea of Uberum ten-
ementum, could compel the plaintiff to new assign, and select the
specific boundaries of that alledged to be trespassed upo^. [1
Chitty, 490.]
As the Court had no jurisdiction of so much of the action as is
for breaking the close, it is unnecesary to consider whether the
•plea answers that part of the count which asserts the breaking and
destroying of the personal chattels, as there is but one county and
that for a matter without the jurisdiction.
The judgment must be reversed and remanded, as it is possi-
ble from the form of the writ, that a proper count in trespass
may be framed on it.
Reversed and remanded. • ,
» \
4
... HALL V. MONTGOMERY.
l". Th6 Registere and Receivers i)f the different knd offices, are constituted
■. by the aqts of Cojigress, a tribunal to" settle controversies relating to claims
to pre-eipption rights, and therefore an oatli administered- in such -a con-
troversy before the Register alone, is extrajudicial, and as perjury cannot
'. ' be predicated of such evidence, an action of dander caimot be maintained
for a charge of false swearing in such a proceeding. <
fi. An accusation of perjuiy implies within itself every thing necessary to
constitute the offence, and if the charge has reference to extra judicial tes-
timony, the onus lies on the defendant of showing it It is not necessary
in such a case to alledge a colloquium, showing that tlie charge related to
material testimony in a judicial proceeding.
Error to tl^o Circuit Court of Bepton.
JUNE TERM, 1845. 511
Hall V. MoHtgomery. *'
Slander by the plaintiff against the defendant in error. The
declaration contains fourteen counts. The first copnt after the
formal introduction, proceeds to alledge, that a certain matter
was pending before the Register of DeKalb county, who was
duly authorized to act in the premises, and try said matters of
controversy, when James L. Lewis, by virtue of the pre-emption
laws of the United States, passed in the year 1838, was claimant
of a certain quarter section of land lying in the district attached
to said land office, and a moiety of which said quarter section of
land one Charles D. Scroggins claimed adversely to the said
James L. Lewis, and the said Scroggins and Lewis, having on
the 6th June, 1842,' pursuant to previous notice, met at the said
office at Lebanon, for. the trial "of their respective claims, the said
Hall was then and there called on by the said Lewis as a wit-
ness, to testify in his behalf, and the said Thomas Hall did then
and there, and after being duly sworn on his corporal oath, before
Simpson O.'Newson, a notary public insaid county of DeKalb,
duly authorized and empowered to administer said oath+to the
plaintiff, give testimony in behalf of said Lewis, material to the
issue and mdtter then pending. The count then, omitting the
formal part, proceeds to alledge, that in a certain discourse, which
the defendant then and there- fiad, of and concerning the plaintiff,
in the presence and hearing 6f divers good and worthy citizens
of the State in the county aforesaid, falsely and- maliciously, spoke
and published, of and concerning the plaintiff, and of and concern-
ing the matter which had been so pending, and concerning the
said evidence so given in by the said plaintiff, the false, scanda-
lous, malicious, and defamatory words, following, that is to shy.
Hall, (meaning Thomas Hall, the plaintiff.) has sworn falsely re-
ferring to the evidence, and oath of the- said Hall, so taken an4
given as aforesaid.
"^ The succeeding eleven counts, are framed upon the same mat^
ter, changing the phraseology of the words alledged to be spoken,
in reference to the testimony of the plaintiff, upon the trial in the
land office. 13 count. -And afterwards, to wit,&c. in a certain
other discourse, which the said defendant then and there had, in
the presence and hearing of divers other good and worthy citi-
zens of the State, the said defendant further contriving, &c. then'
and tliere, in the Rearing and presence of the said last mentioned
persons, falsely and maliciously, spoke and published, of and coto-
612 ALABAMA.
Hall V. Montgomery.
corning said plaintiff, the false, scandalous and malicious, and de-
famatory words following, that is to say, he, meaning the plains
tiff, has perjured himself.
14 count. Same as the last, except that the words charged
are. Hall (meaning the plaintiff,) has perjured himself.
The defendant demurred to each count separately, and the
Gourt sustained the demurrer to all the counts. of the declaration,
and rendered judgment fox the defendant; This is now assign- .
ed as error. . ^ ^
■» ■
S. F. Rice andL. E. Parsons, for the plaintiff in error, argu-
ed that the Register, or Receiver, is a court to decide controver-
' sies, and may administer an oath. [Land Laws, part 1, 378-9,
§2,3; 431, §2, 3.] That the oath being' administered by the
notary public, in the presence of the Register, was the act of the
latter. [2 Conn. 40.]
"' . The two last counts are certainly good, as they all6dge the
'• charge of perjury, and a reference may be had to the previous
counts for dates, &;c [Starkie on Slander, $1, 54 ; 9 East, 95 ;
Cro. Jas. 648 ; 5 John. 211, 430 ; 6 Ala. Rep. 28I.J
W. P. Ghilton 9,nd-F. W. Bowdon, for defendant in error.
The twelve first counts are plearjy bad. They charge a con-
troversy before the Register of the land office, but the Register
alone cannot act ; the power to act is given him in. conjunction
- with the Receive'r. [Land Laws, 1 part, 165, § 3 ; 429, § 1 ;
437, §4; 2 part, 84; No.. 57; 729,^ Np. 682.] ' . .' '
The oath was administered by a notary public, 'instead of the
■ Register and Receiver, who are a statutory court, and was there-
fore ex^ra judicial. [Land L. part 1, 378-9, § 2, 3 ; part 2; 431,
tea] / ■ : / ; .
> The power conferred by the laws of this State on notaries
piiblic, does not extend to the offices of the f'ederal government,
'(Dig. 379,) and at common law he was merely. a" commercial of-
.ficer.
The oath being extrajudicial, no perjury'could be committed.
f2 Russ. 540 ; 3 C. & P. 419 ; 3 Salk. 269 ; 14 Eng. 0. L. 376 ;
1 N. & MqC. 547.] V '. '
The two last counts refer to the preced/ng, and partake of their
character. * ■>...■,'
JUNE TERM^ 1845. 513
Hall V. Montgomery.
The averment of special damage is insufficient. [8 Porter,
4a7.] • .
ORMOND, J. — The principal question presented upon the
first twelve counts of the declaration, is, whether the trial in
which the alledged falsq swearing took place, was a ju'diciar.pro-
ceeding. It appears, a certain matter of cohtrove.rsy was pend-
ing, before the Registe'r of the land . office, in DeKalb tounty,
wherein James L. Lewis, by virtue of the pre-emption law of
Congress ofthe. year 1838, was claimant of a quarter section of
land, a moiety of which was claimed by one Scroggin^ adverse-
ly to Lewis. , That the plaintiff was called upon as a witness by
Lewis in support of his claim — that he was sworn to testify in
.behalf of Lewis, by a notary " public, and that it was in reference
to the testimony so given in, that the defendant acQused him. of
swearing falsely.
The act of Congress of 22d June, 1838, «to grant pre-emption
to settlers on the public lands," gives to settlers on the public
lands, under certain limitations not necessary to be noticed, « all
the benefits and privileges of an act, entitled an act, to grant pre-
emption rights to settlers on the public lands, approved May 9»
1830," with a i)roviso,<that w;hen more than" Dne person had set-
tled on, iand cultiyated any one quarter section of land, each
should have an equal share, or interest. [1 Land Laws,. 574.]
.' This act' does not provide for the settlement of- controversies,
where more than one person 'claimed a pre-emption' upon' a^quar-
ter section of land, but by reference to the act *of 183P, which is
ia effpct embodied in the act of 1838< it appears by the thii'd sec-
tion, that " the proof ofscttlement "and ii^provement, "shoujd Jbe
made to the Register and Receiyev, of the land district in which
such lands , may lie, agreeably to ' the. rules to be prescribed 'by
the Commissioner of the General Land Office, for that purpose."
It is very clear, that the Register and Receiver were acting in
a judicial capacity, in thus ascertaining the facts upon which a
pre-emption was t© issue, and so it has universally been consid-
ered by the General Government. Such was the opinion of Mr.
Butler, the Attorney General, as expressed upon this law, in^an-v
' swer to inquiries upon this subject. He says, " In weighing the
evidence, and deciding on~ its' sufficiency, these ofiicers act iii.a
judicial capacity," and he proceeds to say, no other officer of the
65 ■ ■ ■
514 * ALABAMA>*
Hall V. Montgomery.
government can reverse their decision. [2 Land Laws, 84, No. •
57.] To the same effect is the communication of the Commis-
sioner to the Register and Receiver at Tallahassee. [Id. 729,
No. 682.]
This being then a special judicial tribunal, created by Con-
gress, it can only act in the mode, and upon the subjects pointed .
out in the law. The power being delegated .to tbe Receiver
and Register jointly, cannot be exercised by one of them sepa-
rately, and such separate action would be as destitute of legal- va-
lidity, as woul4 be liie joint action of both, ifpon a subje'ct not
within their cognizance. A reference has been made to the act
of 24th May, 1824, for the correction of errors in entries at the
land office, 1 Land Laws, 378, by the second section of which
power was given to either the Receiver, or Register, to admin-
ister the oath to the party, who-desired to change his entry, which,
was to be transmitted to the General Land Office. This act fs
upon an entirely different suibject, in no manner connected with
the present, as the Receiver, or Register, receiving the affidavit
had no judicial power conferred on them beyond the power of
administering the oath, and canTiave no influence whatever upon
the present question.
It results from this view, that the proceeding before the Regis-
ter alone, was extra judicial — that he did not constitute the Court,
appointed by Congress for the ascertainment of the disputed facts,
' and that conseq^uently, the oath administered, not being in the course
of a judicial, proceeding, perjury cannot be assigned upon it, or pre-'
dicated of the testimony, however wrong in a tnoral point of view
it might haye beeq,to have stated a falsehood «pon siich lexarai-
nation. . * " \ •
These considerations relieve us from the necessity of inquiring
whether the oath, though administered by a notary public, who
as such had no power to administer it, might not be considered
as the act of the Court, and administered by itsdirecticfn. It al-
so relieves us from the consideration of the numerous counts in
detail, in many of which it might perhaps be doubted, whether
the words as charged are actionable.
The two last counts of the declaration Which charge the speak-
ing of words actionable in themselves, stand upon a different foot-
ing.. The accusation of perjury, implies withinjtself^ every thing
necessary to constitute the offence, and if ihe accasation had re-
JUNE TERM, 1845. * 515
The Mayor, &c. of Mobile v. Rouse.
ferenQe ta testimony delivered extra judicially, the 07^2^5 lies on
the defendant of showing it. [Jackson v* Mann, 2 Caine's Rep.
91 ; Wood V. Clark, 2 John. Rep. 10.] And therefore in such
cases no colloquium, showing that the charge relclted to rnaterial
testimony in a judicial proceeding is nec6ssary.
It is however urged, that we must understand the 'two- last
counts as referring to, and adopting all the first count, except the
words spoken, and that therefore the declaration itself showsj
that perjury^ in its legal sense, was not charged. This is doubt-
less true, if the declaration could be so interpreted, but we do not
understand the reference in the two last counts, to the preceding,
to be any thing more,^ than an adoption of the formal part of the
first count, which for the sake of brpvity, is thus silently incorpo-
rated into these, and considered as if again repeated. So con^d-
6ring these counts, they are good, and the demurrers to thepi
were improperly sustained.
There is no special damage .^Hedged, as supposed, in these
counts of the . declaration. ,Thegenera| charge, that in conse-
quence of the words, «< divers el" his neighbors have refused to
have any transaction, acquaintance, or discourse with him," &c.
W9uld not have authorized proof of special damage, and amoOnts
to no more than a general allegation of dantagc, sustained by the
speaking of th^ words. • ■ ,
Let the judgment be reversed and the cause remanded,
V. • '. , ' \ ,», v* y
•• *
'•• THE MAYOR, &c. OF MOBILE v. ROUSE. '
1. The cofporate authbritieji of Mobile are invested with p6w6r to enact an
ordinance to requite tlie 'keepers of coffee-houses, taverns, &c. within the
city, where wine, &-C., are Bold by the retail, to obtain a licence from the
mayor for that purpose ; and to impose a fine of fifty dollars for retailing,
without first obtaining such license. It is no defence to a proceeding in-
stituted for the recovery of the fine imposed by the ordinance, that the Of-
fender ia liable to an indictment at the instance of the State. • -
516 ALABAMA.
»^
The Mayor, &c. of Mobile v. Rouse.
-' Appeal from the County Court of Mobile. • >' _
This was a proceeding instituted before the Mayor of th6 city, at -
the suit of the plaintiff in error agains't the defendant-, for the re-
00 very of tlje sum of $59, the amount prescribed by an ordinance •
of the" corporation for selling « drink, wine and spirituous li-
quors," within the limits of the sapae, without licens'e. Judgment
being rendered in favw of the plaintiff, the defendant appealed to
the County Court, where, upon a demurrer "to the statement of
the complaint, it ^yas adjudged that as the retailing of spirituous
liquors,' &c.," was' an offenee against the State, it was not compe-
tent foi' the corporatfon to punish it by imposing a penalty there- ' .
for. V. ' / ' . .
• mfe^Aiv, for the appellsiift.— No' •objection was, or coiil'd bia
taken to the form of the proceeding ; and it had been fully settled
by previous decisions of this Comi, that thie. Legislature might
confer upon an incorporated tow;I the power to regulate retailers
within their limits; and even ^prohibit It, if judged expedient.
[6 Ala. Rep. 653 ; Id. 899.] -; -; .^ v v. ;, . ^ ; ^^V
J» A. Campbell, for the def^dant. ' "t " .' *'^ '" ** ' ^* .
COLLIER, C. J.— The Mayor and Aldermeii, &c. of the •
city of Mobile are invested with authority by its act of incorpo-
ration, to provide for licensing and riegulating retailers of liquors *
within the limits of the city, and annulling the licJense, on good
and Bufiicient complaint, being made against any 'person holding
the same. In the statemenUmade by the plaintiff, so much of the
ordinance as is supposed to be material, is set out. From this it
appears, that .a fine of fifty dollar^ .is .imposed on every, person
who shall retail spirituous liquoi'S, &c. in Iqss quantities tHan a
quart, within the corporation. . Further, that every person in-
tending to keep a coffee-house, tavern, &c. where drink, wine or
spirituous liquors are to be sold by the retail,- shall obtain a license
from the mayor for that purpose. The charge is, that the de-
fendant did violate the ordinance in selling drink, wine and spi-
rituous liquors, &c., without having, applied for and obtained a
license, &c.
. The power conferred by the charter 'is very broad, ^d fully
authorised the enactment of the ordin'since. This is shown by
JUNE TERM, 1845. 517
Evans v. Stevens, et al.
the case of the Intendant,, &c. of Manon v. Chandler, [6 Ala. B,
899 ;] and both that case, and The State v. EstaBrook, [6 Ala.
R. 653,] affirm that the grant of such a power ig within the com-
petency of the Legislature, it cannotbe admitted,thatbecause the
existencQ of a certain state of facts js made an offence against the
Stale, therefore the corporate cltithorities. of a town can adopt no
punitive regulations in respect to the same, where they occur
within* its Jimits. Such a restriction would inhibit the punishment
of affrays and other breaches of the peace, keeping disorderly
houses, public gaming; &c. True; the powers of such a corpo-
ration, like all others, must belimitedby the expressed will 6f the
Legislature. " , • '
The punishmejit (if it may with propriety be so called.) \vhich
is denounced by a municipal corporation, is not intended to vin-
dipate the dignity of the State, but it is a mere police regulation,
intended to secure quiet and order within its own borders. Ther6
is no constitutionai provision, even when most liberally interpret-
ed, which prohibits the exercise of such a power, if conferred by
the Legislature,' and exercised according to law.
The cases cited, are conclusive to show, that it was competent
for the'LegiSlature.to graiit the power in qilesl^on; from the case
as presented, it spems to have been properly exercised. The
judgment is consequently reveirsed, .and the cause.remanded. •
. ' •• • . '
EYANS, use; &c. v. STEVENS, et AL. /
1. The Circuit Court>has no original jurisdiction of a summary proceeiiing
by motion agaitist a constable for failing to return an execution. The
statute only authorizes the motion to bo made before the justice of the
peace issuing the execution.
Writ of Error to" the Circuit Court of Barbour.
518 . ALABAMA.
Evans, v. Stevens, et aJ.
This suit was commenced in the Circuit Court, after notice
by motion of Evans, and is against Stevens for -failing as a con-
stable to return an execution placed in his hands, to be levied at
the* suit of Evans against one Commander.* The amount of the
execution, at the time of the motion, including interests, costs and
damage, exceeded fifty dollars. After the plaintiff had closed
his proo^ the Court, without any .motion beiilg made therefor,
dismissed the cause for want of jurisdiction. This is now assign-
ed as error. ,'
- .\ ' •' ■ , •- • '
P. T. SAYREjforthe plaintiffs in error, argijed that this'-specific
remedy is given before a justice of the peAce by the statute.
[Dig. 219, § 87.] . But a justice of the peace ba? no jurisdiction of
sums over fifty dollars, therefore in this case a justice could not
proceed. Hence results the necessitj^for the Circuit Court to ex-
ercise the jurisdiction, as otherwise^, the plaintiff will be reme-
diless. ,^ '.. ^ . t - / , .
No counsel appeared for the defendant. '
GOLDTHWAITE, J.— The Jegislation which authorizes
summary proceedings against constables, for neglect of duty in
failing to return executions, in failmg to make the 'money, on them
when they might do so by the use of diligerice, and in failing to
pay oyer money actually collected, is somewhat peculiar; for it
allows the pursuit of the remedy in the two last instances, in the
Circuit or County Courts, when the sum. in controversy, with
Jhe penalty, will exceed fifty dollars, and is silent as to those
Courts when the motion is founded on the failure of the constable
to return the execution. [Dig. 219^ § 87 to 91.] As the seve-
ral statutes inflict penalties as well as provide remedies', they
must be strictly construed, and cannot properly be extended be-
yond the expressed intention of the legislatui'e. In the present
case the amount of the execution, with the costs and interest,,
will exceed fifty dollars, but the statute authorizes the motion on-
ly before the justice issuing the execution. [lb. § 87.] It is sup-
posed there will be a failure of jurisdiction, if the party cannot
proceed in the Circuit or County Court, as the justice has no ju-
risdiction when the sum in controversy is more than fifty dollars ;
but it will be seen the case is expressly provided for of the failure
JUNE TERM, 1845. 519
Grant v. Cole & Co.
to make the money, if it can be made by the use of diligence ;
and this shows that the recovery, when there is a failure to return,
is a mere penalty ; no injustice therefore fg done by confining it to
the Court which the legislature has provided.; the more especially
as the remedy allowed by the common law, of an action on the
case i^ open to the party. . ' ' :
Judgment affirmed. * > ' : ' .* * % /
;^
• ; . GkANT v.'COLE & CO.. •
1. -The fact that a merchant and his clerks Tcept correct books, and charged
promptly all articles purchased at tlie store — that certain articles charged,
were suitable to' the wants of the defendant's famUy — that he traded with
the plaintifis, and was frequently at their store, are too remote to justify
the presiimption that a particuUir account is correct.
2. 'Entries upon the books, may be proved by jfroof of the hand-writing of a
deceased qlerk.
3. The " account," or statement of the items of charge, by the plaintifli, is
inadmissible as evidence to go to the juryi . . ,
4. , A noticp to one of the clerks, hot to furnish goods for defendant's fiunily,
yithcftita writtenorderfi'om himself, or Jiis Atife, is not notice to the prili-
cipals.of the house, .or the 9ther clerks. •
5. Tp "charge one for articles ^hich he, did not authorize the purchase of,
but which came to the use of his family, it roust appear-that he knew the
fact, and' did pot object, or offer to return them. .
E-rror to the County Cojjirt of Dallas. "•"
'^ . • '■ ■* '
Assumpsit by the defendants, against the plaintiff in error, up-
on a note, and also an open- account.
Upoii the trial it appeared, that the plaintiff, to establish two
open accounts, introduced as a witness their principal clerk, du-
ring the year 1842 and 1843, when the accounts were alledged
to have been contracted, amounting in all to one hundred and se-
ven dollars ; who prtov^d that in the early part of the year 1842,
52p . • ALABAMA.
Grant V. Cole& Co.
the defendant instructed hknnot to sell, or charge to him any ar-
ticle whatsoever,, unless purchased by himself or wife, or upon
their written order. It did not appear that further instructions
were given, or that these were communicated to the other clerks,
or the principals of the house. That defendant acted capricious-
ly, sometimes instructing not to trade with his wife, and at other
times sanctioning purchases made without his order.. The wit-
ness then testified to the amount of twenty-five dollars seventy-
two cents^r for goods sold to" Grant and wife, and upon their or-
ders, and also testified that ten dollars twenty-five cents of the
account was in the hand writing of a deceased' clerk, who he be-
lieved was accurate and eorrdct in his entries, but knew nothing
of the facts to whom the goods were furnished.
The plaintiffs then proved by another clerk, the- sale of other
articles charged in the account, bought by Grant himself,
amounting to thirty-one dollars and sixty-seven, cents. They
further proved by the ovei*peer' of the defendant, that he had
purchased an auger and file, charged in the ' account, ' and
carried them to the plantation, but'Could not say whether defcQd-
anthad any knowledge of it. ' The plaintiff then proposed to of-
fer the accounts to .the jury, as evidence, which the Court, against
the objections of defendant's counsel, permitted to go in evidence,
subject to the charge to be given ; to which the defendant ex-
cepted. ■ .. . • ' ..
The defendant moved the Court to charge the jury, that the
plaintiffs could not recover more than thpy had proved they had
sold to Grant and wife, 'in person, or to their' order r which the
Court refused, and charged the jury, that .Jhe instruction of the
defendant to the clerk, was not notice t6 the plaintiffs, unless it
■\yas pi-oved they were communicated t6 them-; and that if they
believed from the testimony, that articles were sold by the other
clerks, or by the plaintiffs, and carried on the pjantatiop, or came
to the possession of himself and family, and thus used,' and appro-
priated for their benefit, that the defendant was properly charge-
' able with them. In reference to the. accounts, the Court charg-
ed, that the items not proved by positive, might be established by
circumstantial testimony, such as the wants of the family ; that
defendant traded considerably with plaintiff, and was frequently
in their store ; the correctness, and 'accuracy of the plaintiffs and
their clerks as accountants, and their practice of making entries
JUNE TERM, 1845. 521
Grant v. Cole'& Co.
on their daybpoks immediately for all articles sold,' but that such
circumstances "were entitled to but little weight, unless the arti-
cles were of the kind and description necessary for the defendant,
about his plantatrcm, and in his femily. To which the 4efendant
excepted, an'd which he- now assigns as error.
■ G. W. Gayle, for plaintiff in error. '.•.'• '.
OEMOND, J. — There .can be no doubt that a merchant's ac-
count, like any dther fact, may be established by circumstantial
evidence ; buj these circumstances must bot be remote, or far-
fetched, but such a^ afford a reasonable presumption, of the facts
attempted to. be deduced from them. Thus, in this case, the fact
that the plaintiffs and their clerks kept correct book§, and charg-
ed propnptly all ai'ticles pui'chased at the store, did not warrant the
inference that the particular account was. correct. Such a pre-
sumption from the facte, was a mere conjecture. The same re-
nfiarks apply to the facfs in.^viden'ce, that the goods charged were
suitable to the wanfs. of the family of the defendant, and that he
traded cohsiderably with the plaintiffs, and was frequently at
th^ir ^tote. These are too general and indefinite, to warrant a
particular conohision, especially in a case, from its very naturfe,
susceptible of precise^ and'-definite proof. '< i " '"
The prpof of entries upon the books, by prodf of the hand^writ-
ingofa deceased clerkj was admissible "evidence. fClemei^ v.
PatitOQ & Co. -9th Porter, 289, and cases there cited.] v..
The « account " by which we understand the paper upon
which the items composing the aocount were stated, was not tes-
timony io the jury fgfr any pnrpose, as it is the qiere written dec-
laration of the party hirpself. TJie Court therefore, erred in per-
mitting it to go to the jury, against the objection of the defendant.
The fact that-the defendant gave notice to one of the clerks
of the house, not to furnish goods for his family without a written
order, or the pergonal directioh of himself or his wife, was not no-
tice to the principsils of tbe house or the other clerks ; but we
are not able to perceive the importance of this fact upon tfie case,
from any thing stdted in th^ record. If from the previous deal-
ings between the defendant and the plaintiffs, he had given his
children or servants a credit at the store, he certainly might limit
the dealing in future, and put a stop to further credit But in any
66
522 ALABAMA.
Turcott V. Hall.
conceivable pasCjif the goods came to his use' with his know- >
ledge or consent, he would be responsible. It would not be suf-
ficient to show that they came to his use merely— ^as for exam-
ple that they weve purchased by. his overseer for the use of the
plantation. [Pishefi-^jSf Johnson v.-Campbdl,' 9th Porter, 210.]
But to charge him for any article which he did not Authorize the
purchase of, it jnust be shown, that he knew the article was used
by his family, without objection, or offer to return it on his part.
Let the judgment' be reyers6d,' and the cause remanded/
' ; iV • . . . »
f "'
I'
*♦ TURcrotT v;%tAiiI'' ' • ''
1. The act of tJie-9th of DeeembeVj 1541, **For tiie better securing tnecHan-
ics in the city anjvcounty of Mobile," which provides a summary and ex-
' traordinary remedy, where the work shall.be dope towards "the erection
or construction of any buUdihg," in that city o'r county, by a journeyman,
laborer, cartman, sub-contractor, (fee. cannot be construed to ^ve- the re-
medy, provided, to one who has laboured under employment by a sUb-cpn-
tractor. . ' , .
2. Where it. is obvious from the proof furnished by JtHe plaintiff himself, that
he is not entitled to peover, no matter .wh^-t 'nlay' be th^ ruling of the
Court upon other points raised in the cause by" a pi'ayer fot instructions to
tiie jury, an appellate Court should.not'rexer^e a judgment which has heen
rendered in favor of the defendant . * .* ■ , .•..'•.*>'*'''
• •■ •' ; •.♦.-' v.- \ .,
.. Writ of Error to the Circuit Court. of Mobile; .•- ' , »•* ./
• . ' ■■ -*. '*
This was an adtion of assumpsit at the 'Suit' dl the plaintiff in
error. The declaration contains the conjmonr counts ; in the first
of which it is stated that the work and Jabor done by thc'plaintiff
was in the erection of a dwelling house in the citypf MiQbile, " ex-
ecuted under a contract between the said defendant arid, one Jas.
S. Deas. for the said defendant, and at his special • Instance and
request." To the first count there was a demurrer, and to^ the
JUNE TERM, 1845. 658
Turcottv. HalJ.
Others the defendant pleaded non assumpsit. No notice-was ta-
ken of the demurrer, but the cause was submitted to a jur-y, on
issue joined, a verdict returned for ihe defendant,. and judgnfient
rendered ac.cordingly. • - ■
On, the, trial, the f/laintffF excepted to the ruling of the presid-
ing judge. From the -till of exceptions it appears, that the plaio-.
tiff offered in evidence the following paper, viz: •
f " , . •
Mr, Samuel Elliott, ' , To Amarhle Turcott, Dr.
" To 32 days work oa Mr, Hall's- house in Government street,
Mobile (as a joui-neyman carpenter,) viz : from 9th December,
1841, to January, 1 th following, at 82 50 per day, . . . .$80 00
"The above sum is justly due me for work performed as fibove
specified. Mobile, January 31st, 184^.
Amarble Turcott."
Attest, Anthony M. Barnelle.
The attesting witness proved that he presented this account to
the defendant on the 2d of May, nekt after its date.. It was fur-
ther shown, "that 4he \v,ork'to wTiich the account refers, was per-
formed by the' plaintiff, upon a house cre^tedin the city of Mo-
bile for the defendant. That James S.-Deas contracted in: writ-
ing with the defendant fot- its erection; that Sariiuet Elliott 'was
a sub-contractor of 'Beas, for the building .of a, part of the hopse ;
Wiat the plaintiff was employed to work on the^house by Elliott,
and thatliis wages >from the 9th l>ecember, 1841, until the house
was"finished about the fii-st of February, thereafter, were unpaid.
The plaintiff further proved, th?it on tho' J^Oth May, 1842, there
wAs due from the defendant to I)ea's,'from three to four hundred
dollars, and at tl^e same time d,ue fromDeas -to Elliott about the
same amount, all of which still 'remained' ufipard. There was
no evidence that a copy of* the attested account was ever served
by the defendant upon Deas or Elliott. ^ ■
The Court charged the jury, that the act of the 0th o^ Decem-
ber, 1841, under which this action was brought, contemplated ftot
only a notice to the owner, but a submission to arbitration ; but
left it 4iscretionary with the owner to give the notice to his con-
tractor oF/iot ; and if the owner, when served with an attested
account, did not serve d copy upon his contractor, he could riot
be made liable qnder the act. That as the defendant did not give
",'j-tr'''
hMi^
Turfiott V. Hall.
such notice to his contractor he was not liable, and-they must find'
a verdict in his favor.
And the Court upon the prayer of the plaintiff's counsel fon'n-
structions, refused to charge the jury, that it Was the duty of the
defendant, when served with an attested account, to furnish his
contractor with a copy, and that, if he failed to do so, he made
himself liable, and the plaintiff must recover. * . , :;
K. B. Sewall, for the plaintiff in error, insisted, that the sta-
tute should not receive the interpretation the Circuit Judge had;
given it. The owner is required to furfiish his contractor Ayilh
a copy of the account, and if he does not, as a necessary conse-
quence he becomes liable to pay it. ' Such a construction should
be given to the act, that every 'part of it may, if possible, be ope-
rative. [Dwarres on S^tatutes, 699,]
J, A. Campbell, for defendant v >i , ^
':■-/• " •• '.. ' ' ■■. ■■ ,'' ^ :•■;* v "- .;.
"COLLIER, C. J. — It is conceded that this action is( sustaina-
ble under the act of the 9th December, 1841, '-For the better se-
curing Mechanics in the city and county of Mobile." The first
section of that act provides, that every mechanic, workman, or
other person, doing or performing any work tov\jards the ere(^tiQn,
or construction^ of any building in -the city or county of Mobile,;
or who may have furnished materials of any description for ,the
same, erected under a contract in vvriting or otherwise, between
the pwjier and builder, whether sqch work shall be perj(ol'med as
journeyman, laborer, cartman, sub-contractor or otherwise, and
whose demand for wprjc arid labor done and performed, or mate-
rials furnished towards the erection of such building, has not beeti
paid and satisfied, may deliver to the owner thereof an attested
copy of the amount and value of the work and labor thus perr
formed,, or materials /urflished, the amount unpaid thereupon, the
owner shall retain out of his subsequent payments to <the contrac-
ter the amount of such work and labor, or materials, for the ben-
fit of the person so performing the same.*., j . / , , ,', ' ,
The second section directs, that whenever ail account as pro-
vided by the first, shall be placed in the hands of the 6wner, or
his authorized agent, it shall be the duty, of such owner or agent
to furnish his or her contractor with a copy 'of such paper, so that
JUNE TERM,. 1845. 62S
Turc.ott V. HalL
if there should be any disagreement between such conti-actor and
his creditor, they may, by amicable adjustment between them-
selves, or by arbitration, as.cei'tain the true^ sum due. If the con-
. tractor shall liot, within ten days after the receipt of the accpunt,
give the owner written notice that he intends to dispute the claim,,
or if in ten days after giving such notice, he shall neglect or re-
fuse jto have the juatter adjusted as above provided, hp sliarjl be
considered as assenting to the demand, and the' owner shall pay
the same when due.
The thfrd section prescribes the mode in which arbitrators shall
be chosen, .and their award made, if the contractor disputes the
account of the jouraeyman, or other person, for ^ork, &;c.. and
the matter cannot be amicably adjusted.
By the fourth section' it is- provided, that if the contractor shall
not, within ten da^'s after the matter shall be adjusted,' pay the
amount due the creditor,^ together with the costs incurred, -the
owner shtill^pay the same out of wh^t he owes the contractor ;
and (his amount may be recovered by the creditor from the own*
er in an action for money had and ijeceived, if he owed the cori«
tractor so nvuch at the time the, first notice was given, or if it sub-,
sequently accrued.- The fift;)i and last, sect-ion has no applica-
tion to the present case, and consequently nedds-not be more par*
ticularly noticed. . ' ' , ; •'
We have thought it proper to recite this statute thus af length
because it is peculiar, and the present is the first case that has
arisen under it. The strikin^g similarity/of its provisions, with an
act of the legislature of New York,' passed ;in 1830, jxnd apply-
ing to mechanics, workmeilr or other- jDersons doing work to-
wards any bciildiog in the city of New York, Very clearly .-indi-
cates that that act was consulted in framirfg it. This being- the
case, the decisions of that Stat(i which determine the meaning of
its statute, are partiqularly pertinent, and may aid us in asccy-
tainhig what cOnstl'uction should he placed upon ours ;' especially
in a matter of doubt.
In Wood v. DonWdson, 17" Wdnd. Rep. 550, the question
arose, whether the creditor of a, sub-contractor could, proceed by
notice to the owner to recover his "claim in the manner prescrib-
ed by the statute. The Court said, "if the remote workman un-
der-the sub-contractor, in whose contract he has no interest, and
over which he can exercise no control, and which thercfore may
526 ALABAMA.
•Turcott V.Hall.
be injudicious and extravagant for aught that he can do, can, by
presenting his attested account to the ownev, collect it, so far as
any balance due the contractor exists in his hands, the whole
fund may be exhausted, in spite of the contractor, though the job
may have been but partially finished." . To illustrate the injustice
of such a constructior^ a- hypothetical case is -stated as follows :
«A agrees to build B .a house for $5,000, and kub-coptracts it- to
G for $4,000. C, by improvident conti'acts, -fin^s, when the? work
is half done, that he owes l]is workmen, and material men, the
$4,000, and absconds. They present their attested accounts to
the owner, who is bound « to retain out of his subsequent pay-
ments to the contractor, the amount of such work, &;c., for the
benefit of the persons performing the -same."
The Court admitted that the first section, gave some counte-
nance to the extended. construction contended for. In its terms
it includes every laborer upon the building, without auy limita-^
lion in respect to the perspns who mayhave employed him^ or
the character of his contract. But it was said all the provisions
of the statute must be- consulted, and if possiblp construe the first
section aiccording to the intent' of the legislature, as gathered
from the entii'e enactment — making it all consistent and ope-
rative. • • -* •
The statute qf New York, in decFaring .who shall be entitled
to its provisions, uses language almost identical with ours — cer-
tainly not more limited in its import, and the reasons assigned for
refusing to the creditor oj a- sub-contractor t^e right to proceeci
by notice to the owner, &c., are of great force. To these we
would howevenadd, that as the act is 'introductive of a new re-
medy, entif-ely out of the ordinary course of procedure, its inter-
pretation should be restricted ; especially where the adoption of
a different rule wpufd be lil>:ely to prodlice ev^ils quite as great as .
any for which the statiite was intended.t© provide. •
It does not appear that iYic attention of the Cirfcuit -Court was
called to the point we have considered, but it is explicitly stated
upon the bill of exceptions prepared by the plaintiff's counsel, as
■well as by the attested account which the plaintifffurnisbed to the
defendant^^ that he worked under the employment of a sub-con-
tractor. The plaintiflf himself has shown (from the view wie haVe
taken of the statute,) that he is not entitled to recover in the pre-
sent case. He cannot therefore have been prejudiced by the
JUNE TERM, 1845. 527
Bell and Casey v. Thomas.
charge of which-he. complains ; for whether the instruction was
given as p'rayed, or not, the jury should have rcturtied a verdict
for the defendant. This conclusion relieves usfroni the necessi-
ty of considering the legal questions- discussed at the bar.
•, The result is, that .-the judgment of the Circuit Court iS af-
firmed. ' * . - • , , '
BELL .ANP CASllY v. THOMAS, ••
1. It is premature; to render'^iKlgment upoi^ a replevy bond, conditioned for
the delivery of a steamlloat to the slieriff, at tlie same time that the boat
is condemned. - ,
2. If a bond for the delivery of a boat selze'd under process, in a libel suit, is
good- as a xjommon la;v bond, it maybe proceeded on as a stipulation, al-
though it does not cohform to tl?e statute. ' '•'"'. < •
^rit of Error to the .Qouhty Court of Mobile. * * ' ' .
Thomas, on the 25th January, 1845, .sued prcfccss of monition
and seizure upon a libei filed by him against^the steamboat Du-
quesne, alledging that the boat then waS lying at the t^arbor of
Mobile ;■ that' he, ^t the instance of the master of the siid boat,
performed services on board the same as second engineer, at $50
per inonth, in all amounting to $1(jO, the particulafs and items of
which appeJir by an account filed. He praysf the condensation
-of the said Srteam boat, Ijer tackle, apparel, &c, in satisfaction of
ni^ demand. , • ' -
The process of seizure was returned executed, without setting
out the mode of doing so, and in the transcript iga bond execut-
ed by Bell and Casey, thfe condition of which recites the seizure
of the boat by thb'sherfflf, and therefore they undertook and bound
themselves to deliver the steamboat to the sheriff of Mobile coun-
ty, on the IstMondayof March, 1845, by 12. o'clock hoon, or to
pay and satisfy such, judghjent as should bo rendered on the libel.
528 ALABAJMA.
Bell and Casey v. Thomas.
In, either event the bond was to be void, otherwise to retnain jn
foil force. This bond is payable to the plaintiff, .'f homas, and is
in double the sum demanded by the libel.
At the return of the process, no clairn or defence being' inter-
•posed, a decree was rendered for 'the libellant, for the sum claim-
ed, and the boat, with her tackle, apparel, &c. condemned to his
satisfaction.. It was also adjudged, that in case Bell and Casey
should fail to deliver- the boat, according tQ their stipCilation, then
the libellant do recover of them, the said stipulators, the said sum,
together with the costs in this behalf expended. And execution
was awarded. This decree was rendered the 3d of March,
1845. No subsequent' proceedings seem- to have been had, unless
the return of the sheriff upon the bop4 as forfeited, on the 3d
March, 1845, is to be so considered.
This writ'of error is prosecuted by^Bell and Casey^ who 'here
assign — . • * •
1. That the libel is insufficient, and-doeS not'conform ,to the
statute. . .
2. That judgment, in this form, should fiot have b^en -ren-
dered. ' \ I , • ' . ■ , , ■
3. That the decree is by default, ^d thb Court'cJidiiotreqyH'e"
a^refundingbond. •• • • ■'
4. That the judgnient against the stipulators was premature.^
• ."Addison Fox, for the plaintiffs. *'. . • . f . • —
3E. S. Darg AN, for the defendant., . ' • '• ' . •,"
'-.-•' ■ .« ". ••. * \ • :"■ \'
GOLDTHWAITE, J.^1, The judgment in this case, .so far
as the plaintifis in error are concerned, seems to have been pre-;
matwely rendered, inasmuch a^ the condition, of the bond is to
deliver thd boat to the sheriff on a particular day, or to pay .the
judgment of the CourJ;. In point of fact, the day fixed for the de-'
livery of the boat, is the same' as that upon which the judgment
was rendered.- It is essentially different from^a stipulation to
pay the amount for which judgment shall be rendered. It seems
to have beea taken under the act of 1841, [Dig..l4i0, § 28,] and
varies in its legal effect from, that required by. the previous act of
1836. [Dig. 139, §23.] , ' ^ ' .'
2. It is not important to inquire whether the bond taken is in
precise conformity with that required by statute, fdr if it was Va-
JUNE TERM, 1845. 529
Johnson V. -Williams, sheriff, et al.
riant frora''that, ahd could only be supported as a common IblW
obligation, yetit is within the jurisdictbn of a.Qourt,- prodqeding
according to the course-of admiralty practice^.to render iudgment
pn such an obligation as on' incident to the principal cause. [The
Allegator, 1 Gall. 145.] ' • / .... .j.
The Qther questions raised- in the oause,questidii the sufficieri-
cy ofthe-judgmentofcondemnatron against the boat, and cannot
be iavestigated l^y individuals interested only as jitipulators.
[Livingston v. Steamboat Taltapoosa,9 Porter, 1 11 ; Witherspoon
v.WaHis,2 Ala.."llep. 667. • ' • ' ' :
For the premature juc^gmtnt against the stipulEitorsinthebond,
the judgment, so far as it affects them, must be reversed, and if
the plaintiffchooses, he may. proceed to fix thoit liability. '> ■
.Reversed as to.Bell Jind Casey,/ w ". . -^ . ' .
. jOHNSt)N V. Williams, SHERIFF, :pT al. ,
1. Thq sheriff^ by brcler of the attorney ©f the plaintiff, rettirtteiJ an execu-
tion by mistake a week too soon,, and aii alias was not issued, until after
an execntion of a junjqr judgment creditor, ha^ b^en issued, and levied
pn the property pf the defendant* Held, that ^ it did- not appear, tl^at the
execution wa^ returned, or "its re-issuance ^ekyed, for the purpose of fa-
v^ng the defiSndAntjin ex^ution, and- ae a term had not> elapsed, be-
tween the retomi apd the issuance •of'ihe'oZtos, the prior execution had not
lost its fien. • '" { •* • ' ' ■ ■ V *. • '. ■'
Error to the Circuit Court of Perry. ■'.- i .■ ■
This was-a r>ule against the . defendant in error, ^s $heriff, for
an alledged failure to mafke th6 money on an execution of the
plaintiff, against one Sdmuel Child. The matte? was submitted
to the CoUrt-on the following state of facts ; , *
The plauitiffobtained judgment against Child, at the February
67
530 ALABAMA.
Johnson V. Williams, sheriff, .et al.
term, 1842, of Perry County Court, upon- which a- writ oferror
was prosecuted to the Supreme Court j and 'bond given to super-
sede the judgment, whicti was affirmed at the June term, 1844.
An execution jssued upon the affirmed judgrpent, and came
tothe sheriff's hands on the.Dth August, 1844. .
On the 19th December, l'843f, the State Bank^ued out execu-
tion against Child on judgments previously obtafned, which
came'to the^erifF'« haridkon the 8th April, 1844, and which, by
order of A. B. Moore, attorney- for the Bank> the sheriff returned
to the clerk's office at Tuscaloosa, on the 13th Apdl, 1844. Alias
executions issued on these" judgments qn the- 9th August, 1844,
(except one, which issued On thq 26th August,) came to the she-
tiff's hands on the 28th of the same month, and wereall levied on
the same day, on the same property, as that, levied on by the
plaintiff's execution. • • ' ■
A. B. Moore, attdrney for* the Bank, testified, that on the repre-
■ sentations of the sheriff, that he had not time -to m?ike tbe money
^nd did not want to be ruled, he direi^ted him, the 13th April,
1844, to return the execution ; both himself and the sheriff ^up-
^osing, the Court to which the execution was returnable, was to
beont|ie 5th dayfefMay, when in" fact it was held- one wedk la-
ter. That this was not done to favor the defendant in execution,
/and that he did not then know ofthe r^splirtion of- the board of
directors hca'eafter mentrioib6d, which Child did not comply with,
nor did the bank express a^y dissent from his ponduct.
The folfowiDg resolution of the hbard of ^ir^c'tors was also in
'evidence: , ' '. \ • ' ' " ■ '
Batik of'lheSt'dte of Alabamq. — Tuscaloosa, April I9th, 1844.
, Samuel Childs' comnsunieation was ponsidered, and on motion
it was ,.• ■ •■ ?' • .► ^,, '. '• . • ' .•-
Resolved, That on the. payment of one thousand dollar^ in cash
the sale of his property be postponed, provided no other execu-
tion will thereby obtain priority over the' Bank's, afnd "be pay A.
B. Moore for his services in attending to the businessj and on
filing -assent 'of all the parties to l^he- postponement.
Also a letter from the Cashier to Mr. Moore;, as follows-: With-
' in I hand you a resolution, adopted to-day, in relattop to Si
Childs' debt to this Bank. He has paid the $1,000, and when he
complies with the other stipulations of the resolution,, you will
JUNE TERM, 1845. 531
Johnson v. Willtama, sheriff, et al.
please take the necessary steps to carry "out the object of the
Bank. Very respectfully, . \
*- ^ * Wm. Haw \f Cask.
It was also agreed, that the defendant had no other property
thai^. -that levied oti. * Upon these facts the Court held,- that the
sheriff was not liable to^^he praintiffVas the ejcecutions* of the Banl^.
were entitled to be i^rst satisfiad ; from v^hich judgment this wjit
is prosecuted. • " ; ♦ • . , i" . ' • .•
. r ^ ■ ' /•- •. . * . . • • _
Davis, with whom was Peck, for plaintiff in error.
A. B. MooRE, Qontra, cited 5 AJa. Rpp. 43 ; () Id. 62^. v
PRMOND, J. — The principle settl6d in the case of Wood r.
Gary,. 5 Ala. Rep. 52,-is decisive of ti)is case. The factjof th^t
case were, that: a plaintiff iu execution, a short time before the^-
return day of the execution, directed the sheriff to return it, but
wjthoutintention-to Xaver the defendant in 'execution. The exe-
cution was not re-issued, urwil after one upon a younger jUdguicnt
had- been issued, and had come 1o. the' sheriff's hands, against the
same defendant; . This" Court held, that the order to- ret.mTi the
execution under the facts of the case, did not fender it co^iirtVuc-
tively fraudulent. And that the alias hchg issued before anoth-
er terni had, ^lapsed, the lien of the original eXecytion/Was pre-
served. -
The facts of fhis case al'e almost identical with that. We may
layout of view the order' of the board of dij-ectors, because it.ais
thorized the suspension of tho'eiecution tipon a^tx)nditton.whi'ch
was never complied with, and because in point of fact the rcfura
was directed to be mafle by.the attorney of the Bank, previous to
any action of the board upon the subject, both being ignorant of
the actidn of the other. This return it nppears was directed to
bo made in good "faith, because there was not time to' make the mo-
ney, arjd not to iavor the defendant. The case is. then to be con-
sidered| as- if the tsrxecution had beqn returned by tlie sheriff, with-
out any order from tlie bank or its attorncj. The only remain-
ing fact is, that the alias executions did not come to the sheriff's
hands, until a few days after the execution of the plaintiff was re-'
ccivcd by the sheritT. But as" a tej-m had not intervened^- thp
alias connected itself with the previousexecutions, and continued
532 ALABAMA.
Courdand v. Taxlton & BuUard.
the lien which had been thus acquired, and being prior to that of
the plaintiff, was entitled to precedence. •
Why the executions of the. Bank were not sooner re-issued,
we are riot informed. There 4s not however any fact in the case
which would authorize, the presumption that' they were withheld
by the direction of the Bank^, as the condition upon which ths
Bank bad agreed to a suspension had never beencomplied with.
Whether, if, during this interval, the ejfecution of the pJaintiffhad
been levied, and the property soid, the lien of the Bank Would not
have been lost, we need not inquire.
The facts present merely the case of art onoission to cause the
executions to be re-issued for about 4hi"ee 'months, but as it does
not appear that 'this omission was designed to favor the defendant,
and as the delay cpuld not, by possibility affect injuriously any
other creditor of the defendant, it canhot have the effect ^to ren-'
det the executions construetiv-e^y fraudulent, and give the pre-
ference to a junior execution creditor.
Our opinion therefore is, that the- Circuit Court decided cor-
rectly upon the faqfs in evidence, and its judgment is affirmed.
\
V. ^COXJ^TLAND. >?. TARLT0N & BULLARD, " '.
1. One of the de^ndants wrote'9, letter to the plaintiff, from which it appears
" that tlie latter had demanded the payment of three, notes which the defen*
• dants had given for his compensation in celling .'certain lots in Mobile :
the writer ©f the letter endeavors to convince the plaintiff of the. iiyustice
of the requisition, by stating that but a .small -part of the purchase money
had been collected, and proppses to pay him in proportion to the amour^t
• r^ceired of the- purchasers : Hejd, that this letter' ^^as a refusal to comply
'with the plaintiflF's demand, and an offer to pay what was believed to be
• right, evidently made with view to compromise, and consequently was in-
admissible as evidence against the defendants, • '.
2, Where a question' of \^yf, which should, have b6en decided against the
, party excepting, is refferredto the jury as an inquiry-ef ^ct,'^hose verdict
JUNE TERM, 1845. 533
Courtland v. Tarlton & Bullard.
effects the proper result, the judgment will not be reversed for the irregu-
larity. * ■
3. Whether the admission of fads, in a written propositioft to compromise, be
admissible evidence, or not, it i^ "ot error to charge the jury, that if the
paper was written with th^ view to a compromise, and the promises con-
tained iii it were made for-that piirpo^e, the defendant was-npt 'bound by
tJmn. Siich-a^charge does not deny effect to flieyad*. " ,
Writ of error to the' Circuit jCourt of Mpbiie. • ;.
This was an action of assumpsit, at the suit pf th? plaintiff in
error against the defen<Jants. The facts of the ca^e, so fjlr as it
is necessary to notic6 them, are substantially these. In the-spririg
of 1836, the defendants engaged the plaintiff to sell for them
three lots of land in the city of Mobile, agreeing to allow for his-
compensation what they sold for above certain limits prescribed;
sales were made by 'the pkintlff for. severaf thousand doHai's moi^e
than the prescribed limits^ and the purthasei's notes passed to'the
defendants without objection ; the defendants gave the plaintiff
their three hotes for his compensation- under the con^tract, paya-
ble at six,'tW€lve and eighteen months. The defendants had
realized one-third pf Ihe amount of. the sales, had released the
purchaser in one-instance, upon his giving lip to them the proper^,
ty, and iti the olhjei:s had foreclosed Updrtgages upon the proper-
ty purchased. . • ■
The plaintiff introduced letters pftlyj defendants, to him upon
thd subject of his claim, written in March, 1838 and'January,
1841. On the first of May, 1838, the plaiptiff brought a sfiit upon
the three notes in the Cij'cuit of the United States, and a verdict
was returned for the defendants in April, 1839 — the declaration
being upon the notes only. It was shown on. that trial that the
purchasers )iad not paid for the lots, and that the defendants were
not to pay the plaintiff until that was done ; that the defendants,
gave their own notes td the'plaintlfF, fecauso he said it would ac-
commodate him by enabling him to oi)tain money on them.
The Court charged the jury, that- if they believed ;thc letter of
Match, 1838, was wyittei;! with a view to compromise, and that
the promises therein contained were made for the purposes of
compromise, then the defendants were, not bound by them;
but ifin the last letter written in 1.841, and after this decision in
the United States Court; other promises were made, these last
534 ALAifelMA.
Courtland V. Tarlton & Bullard.
promises would bind the defendants. Whereupon the plaintiff
excepted. The jury returned a verdict for the defendants, and a
judgment was rendered accordingly.- , • '
K. B. Sewall, for the plaintiff in crrcfr, insisted, that the ad-
mission of the defendants^ in-thcletterpf M<}rch, 1838, does not ap-
pear to be confidential, or made with a view to a compromise.
Jf it was, the facts stated thferein, wc(uld, nofU-ithstanding,- be ad-
missible evidence. -[aStarkie'sEv. 22'; Greenl. Ev. 224-5; 2
Pick. Rep. S90'; 4.1d.' 37G; 4 Gow. .Rop. ^35-; 5 Conn. Rep.
416-426 I Anth. Rep. 190 ; 4 N; Ha.mp. R. 501-8-9 ; 2 Mass.
Rep. 175.] And it is even competent, to show that a syim of mo-
ney was offered by way -of the compromise of a claim tacitly ad-
mitted. [Greenl. Ev. 225 ; 4 Pick. Rep. '374; 4 Conn. Rep.
148 ; 1 MoQd.' «fe M. Rep. 446 ; 20 Johns. Rep. 57t> to 590 ; 2
Phil. Ev.;C. &^ ^I^s 'name's, 218-9-221-2-3.]' The admissibility
of the letter was a' questtDii for the Court, with which the jury
had nothijag to do, &nd it vvas ther-efore ifi^gular to refer it to
them to determine its character," ^Greenl. Ey. and noles; 2
Petprs' 'Rep. 25-44^121-137.] . ^ * ■.,-..
;.' .*' ^. ■ '■ ... i' .4
^. A. Campbell, for the <iefendaAt.r — The plaiigitiff declares. for
Siquan^icw, meruit, and disclaims tlie , intention. t-Qrecovei'. on the
'notes— adducing them mej-ely, as evidence to. show the excess of
the sales above the limits prescribed by the-defehdjints. The.
letter was evidentl}^ intended as a proposition to comprojiiise,.and
was thej-efore inadnVssible to show w^at the defendants offered
tovdo^ [2 Phil. Ev. C. & H's notes, 219, and eases there oitedj
. . .COLLIER, 'C^. J.— The letter in question was. written by the
/defehdant T^l'Ltpn' alone, and cprnnpences wjth an acknowledg-
ment of ihe receipt oi the plaintiff's letters. The writer says :
" In replying to that part of yourletttjf which «refej's to T, & B's
ndtes now unpaid, I ^wonld remark, that, ^he consideration for
. whic^- these notes were given, has in part, failed. The property
which you -have sold t^* D. & A., only one, note has be(jn
paid; that sold to B», one .pote has be^ paid ; ar^ that
sold to R. not one cent has been pait;^." The question is
thefl asked, if it would not be-Very ha^d for "the defendants to be
compellpd k) pay their three.uotes to the plaintiffj.when the sale
JUNE lERM, 1845. 53&
Courtland v. Tarlton ife Bullard.
ofthe lots *"macleby'. him turns out to be urrproductive. Avowing
his desire to do what was right, the wntei' declares his willing-
ness to pay him in proportion to the amount paid hy the purcha-
sers ; more he thinks qannot be asked. Should* any further siini
be collected, he assures the plaintiff that he shall have his pro-
portion.. He then remark^, that the amount that the defendants
owe the plaintiff, js a portion of the entire- sum due from the'pUr-
chasers, and that the latter never, expected to be paid, if the de-
Jfendants failed to make collections. That he infers irom the tenor
of the plaintiff's letter that the latter supposed the defendants had
made full collections, undeccivcs'him in that particular, and says
that if he will instruct him, he will see the plaintiff's proportioa
paid at once. ».-...
The fair inference fromthrs letter is, that the plaintiff demand-
ed payment of the three notes which the defendants had given
for the payment (5f his compensation, in selling the lots. ., Tarl-
ton e;ideavors to' convince him of the injustice of si:ich.a requisi-
tion, an4 "proposes to pay him • in proportion to the amount col-
lected of the purchasers. This -was certainly a refusal to comply
with the plaintiff's demand, and an o'ffer to pay him what wtis
believed ip be right. .What is this bul a propositiort for an ad-
justment, a promise made witb £i view 'to compromise. In this
view k i&unimportant-whether the true. ctiaracter of the letter be
a question of law or fact ; for whether it be the one or other, the
plaintiff is not prejudiced by .its refeVence t^ the' jury, W had an
additional chance of succ(?sa afforded ; .and 'cannpt, therefore al-.
ledge the.irrpgulanty as'an error. \ »
It is laid down, that a'a /offer to do something by way of com-
promise, as. to, pay a" sufT) of money,, allow certain prices, d.6liver
certain property, or make certain deductions, and the like, are in-
admissible evidence against.th^ party making thpm. This privi-
lege it -is said^ is Strictly constr.ucd; for it' tiie, proposition is
not made expressly without prejudice^, o,r, if it do not carry
on its face the character of ^ peace offering, the privilege
is gon6. .' [2 Phillies' Evitlence, C. &' H.'s 218-JX] Furl-fier,
both in England . and Am'ericg'^ the nature of - the negotia-
tion has been looked to; and -that the.offej' has been intended
to- be vvithout pi'cjudice, has beea i^iferred from its being plainly
anoffer with a view to compromise. "Offers of sums, prices, or
paytftents, made during an attempt to compromise, are tot ad-
636 J ALABAMA.
Wilson V. Jones.
missible, if not accepted." [Mills, J., in Evans v. Sraith'j 5 Monr. ■«
Rep. 363-4.] But it was said to be otherwise qs to the existence
of a fact. [See 2 Phil. Ev: C. & H.'s Notes,' 219 to 223.]
The Circuit Judge did not instruct the jury to discard the inde-
pendent facfs .stated in the letter of 1838 ; he veiy.explicitly charg-
ed them, that if the letter was written with a View to a compromise,
and the. promises contained in it were made for that.purpose, then
the defendants were not bound by 'them. That the proniises
were not obligatory upon them, and riot "that the entire letter
should be disregarded. . It (^oes not appear that the Court was
asked to give more specific instroctions. The letter we have
seen indicated its true character upon.its face ; the exposition of
the law was borrect ; and thejudgmentfof the Circuit Court is
therefope affirmed. . .- . ^ ., '
^ '■-• - . - .«, -rj .V ;* ■
•■■'•." • ' »'..-■
;;>:■'•;•-.■ .■.•'». •.■ ^ . ' ''■'■' - •■.•.;;/. ..^
' ... ■ V , WILSON V. JONES. , : ■ * ; *
J. A promise' to pay a sum of money in^labama bank or' branch notes, ig a
promise to pay in notes of the Bank 0f the State of Alabama ot its branch-
es, and- it is proper for a Cdurt to charge a.,jmy that such is the proper
construction, w^^out evidence' of the mep-nii^ of the terms used.
• W«it of Error to the Circirit Court of.Lawrence. •.' • •'
AssuAiPsiT by Jones against Wilson, to redover a surri of mo-
ney upon a note promising to pay three thousand five hundred
and sixty dollars and fifteen cents, for' value received, payable in
Alabama Bank or Branch notes. At the trial, after giving the
note in evidence to thejiiry, the phiintiflf offered a witness to prove
the value of the bank notes of the Bank of the 'State of Alabama
and its Branches, at the time when the note sued on fell due.
This evidence was allowed skgainst the objection of tbes^e-
fendant. ' ' '•. • ,' , ."
The Court mstrijcted the jury, that the proper construction of
JUN%TER¥, 1845., 68i
Wilson V. Jones.
l-he note was, that the defendant had promised to pay in the bank
notes of the Bank -of the State of Alabanaa 6r its Brariches ; end
if the evidence was believed the.jmy ought to find for the plain-
tiffin damages tlie <imount of the value of the sum named in the
note, according to the pKoof.
The defendant exoepte.d to the evidence admitted,, and to the
charge. Both points are now aligned as error.
V .... . .
L. P. Walker for the plaintiff in error iYisisted," ' 4
1. That the allegation and pvoof must agree.' The evidence
offered was inadmissible; 1, because it tended to establish a con-
tract variant from that declaimed on — [S Porter, 70 ; lb. 315;
Cowen &, Hill's notes, 428,- 429,]-r-2, because there iji no accor-
dant averment in the declaration that by the f)romise ma<^e,.the' de-
fendant became tbus'liable. ^ * * '
2.' The Court was bouni to know judicially tfeat there 'was, lia
such Bank as the^ Alabama Bank, and- therefore sbould have pro-'
nounced the contract void. [2 Story's 'Eq. 5^.] •
3. Ther.e wai no ambiguuty on the face of tlie note, and the
Cpurt could not therefore consti'ue it. [Gi^eenl. JEv. 340 to- 342 ;
2Step..N. P.1544.] ..... -
4. 'The question here is not abstractedly what is the leaning of
the pix)miser, but what ?s- his meaning by the words used,' (pop-
stock'V.^yanDuson, 5 Pick. 166,]and the words, used import dp
ambiguity ; there was nothing for the Court to constcvi^. >;
"VVm. CooPEfe, contra, .cited Lewis 'v. JPew,' 5 Johns., 1 ; Ward
V. Bilkley, lalb. 486 ; Evari& y. feteel, 2 Ala. Rep. 114. . . ■.
, . , ) - » _
GOLDTHWAiTE, J.— We thinHthe charge to the jury .up-
on the meaning to be attached to the wOrds •' Alabama Bank or
Branch Bank notes," was, eiaiirely coiTCct. It is . scarcely possi-
blefor Courts of justice to be 'ignorant of that which every one
besides would be pr^umed to know. It^thc present case, no evi-
dence could make the intention of the contract more clear than it
is expressed. In common jjarlance, the Bdnk of the State of
Alabama is frequently .termed the State Bank — the Alabama
Bank— the Bank of y^labama ; and the prcynisc to pay a sum of
money in Alabama iSaftk or Branch notes, has no other meanibg
' '■ - 68 ■ ' '
538 M- AI*ABAMA.
Bowlinrf V. Bowling, Ex'or.
than that which'the Court belovvj-gave it. ^ The cases cited by the
plaintiff's counsel are quite decisive to shew the correctness- bf
the charge. Judgment affirmed.'
"i ^ ••>4;.:' >.;■:_•
» f
. • .V BOWLlNa v! BOWLING, EX^'R.
■., '■/■- J . ■. ,. .,.'•.. ' ■ . ,
1. A will of lands may be admitted to probate on the proof of two of the sub-
scribing, witnesses, upon thQ additional jJroof that the other witness resides
. out of the State, and that he also subscribed ^is name as a witness by the
direction of tlie testator, arid iA hie presence, notwithst^ding tl|e wUl is
contested by tlie heir at law. ,
2. An opinion of a witness, thq,t a testatfi;-' vas insane at the time of making
liis win, is not competent 'testimony, he admitting at the same time, that
» •■ heknew'no fatt or cLrctimstance onwhicli his' opinion was founfled.
• ■ ^ ' ■ • . ' • .'
^ Writ ofError to the Orphans' Court of Lawrence.
f •. - . . -^ .,
".Application by the defendant in error, for probate of the will
of Alexander Bowlingi The will bekig contested uporfthe alle-
gation" that the testator Was not of dispoging mind and me'mory,
an issue was made up to try the fect, and submitted to a jury.
The defendant in error introduced two persons who were Wit^
nesses to the will, each of whom deposed to the due and proper
execution of the will, and that' the testator was of sound and dis-
posing mind and memory. . They also provied, that one Robert
Martin also -Witnessed the .will in their presence;, subscribing
his .name, thereto, in their presence, and at the testator's re-
quest. ' It further appeared, thai" said Martin had left the
State, and wag now jiving in. Arkansas, and no effort had been-
made to obtain his testimony, further than* by calling him a:t the
■court house door. Whereupon the ^contestant objected to the
sufficiency, in law, of the proof to establish the will, and request-
ed the Court so to charge the jury, which the Court refused, and.
he excepted. , " " •
The Qontestant als6 introduced a witness, who testified his
..J
JUNE TERM,- 1845. 539
Bowling V. Bowling, Ex'r.
opini(?n and belief to be, that the said decedent was not of sound
mind and disposing memory, about the time the instrument pnr-
porting to be his will was made, without stating the facts and
circumstances on which hisopjnion amd beKef was founded, and
admitted that he knew n© facts on. which to sustain this opinion.
Which testimojiy, on plaintift^'s request, the Court 6xclyded from
the jury, and the contestant excepted. .And the jury having
found the issues for the plaintiff, the Court gave judgiVient, estab-
lishing the will' ajid admitting it to probate. From which^this
writ is prosecuted. These matters are ^ow assigned as error.
McClung, for plaintiff in error. * ',■ .. • •
L. P. Walker, contra, cited 7 S, & R. 9^ ; S Starkie on Ev.
1707, note 2-; 4 Mass. 593 ; 3 Id. 330 ; 2 Starkie on. EV. 1Q81;
note 1 ; 1 McCord, 272 ; 5 Ala. Rep. 274 ; 3 Phillips'Ev; 1262.
< * • ■ .
OR'MOND^ J.— This being a will of lands,, the statute of this
State requires, that it should " be signed by the testator or testa-
f rixj or by some person in his or her presence, and by his, or her
dirocfion, and attested by .three or mOrc respectablp [reputable]
witnesses, subscribing their names- thereto, in the presence of
such" devisor, saving however to the widow of the testator," &c.
In,, England, the statute of 29 Charles 2, is' substantially the
same .as ours, and there it has always been held, thatone witness
who could swear to the executioij of tho will by the testator, and
thdthe subscribed the will, and alSo prove its attestation by the
other subscribing witnesses, is sufficient proof of the due execu-
tion of the. will, in a Court of common law. .[Longford v. Eyre,
1 P. Will. 741 ; see the authorities collected in 3C.6t H.^ofPhill.
on Ev. 1349.] This same rple.obtains in Chancery, where the
direct object of the bill, is not to cstabrish the will, but it is of-
fered as an instrument oi evidence. [Concailnon v. Cruise, 2
Mpnoy, 332.] When howevisr the bill is filed for probate t)f the
will, or when an issue is directed out of Chancery, to ascertain
whether the will.w'a? dvily executed, all the witnesses, if alive and
within the jurisdiction of tho Cburt, must be produced, or their ab-
sence accounted for. If the witnpss is dead, out of the kingdom,
insane, or has become incompetent to testify, his hand-writing
may be proved. [See Pojwell v. Cleaver, 2 Bro. C. C. 504; Car-
rington v. Payne, 5 Vesey, 41 1 ; Burnett v. Taylor, 9 Id. 881.]
540 _ ALABAMA. '■ •
^ -^ ' ^^
Bowling V. Bowling, Ex'r.
• In the United States, there have been a great number of decis-
ic«is to the same effect. InNalle. v. Fenwick, 4 Rand. 585, where
a will had beeli a{lmitte4 to probate on the proof of one witness,
and prdof that two others had subscribed it at the.fequest of the
testator, and iti his. presence, but that they resided beyond the limits
o"f the. State, th6 Court held it sufficient, as they were equally
beyond the power of the Qourt, as if they h*id been dead. To
the same effect is Chase v. Lincoln, 3 Mass. 236.'; S6^rs v. Di^
lingj:iam, 12 Id, 358 ; an^ see ^n this head, the cases collected by
the annotators on Phtlli'^, 3* vol. 13^54. "" . •
The will iij this ca.se was offered in the Orphans' Court for pro-
bate, and although it .might be sufficient in^a case where the v^ill
was not contested, to ddmit it to probate on the proof of one wit-
ness, who subscribed the will, he testifying also to the subscrip-
tion by the other witnesses, in the presence of, and at the request
■of the testator, weCare- clear that in a case like the present, when
the heir contests the wilj,'he has the right to demand that all the •
witnesses be called. •They • are rqquired by the statute for his
protection, and they are best qualified to speak, not "only of the
fact of jhe execution 'of the will, but .also of the capacity of the
testator, to make a will. Yet this right must yield to the necessi-
ty of the case. If a^ subscribing witness btf dead, or insane, or
from infamy or any other ©ause, arising afterwards, be incom^pe-
t§nt t9 testify, secondary evidence must, be -admitted, of great in-
justice would be dolle. The reason is the^ame- when the wit-
hess is beyond the jurisdiction of the Court, by his own act. His .
deposition, -if is true, might be taken,- hot without the wiM, which '
cdrtainly ought not to be sent out of the Sfate^his evidence would
not be more, satisfactory than .the secondary testimony here offer- ,
ed of the oth/3r subscribing >vitnesses, thaft he signed the will as a
witness, at the request, and in the presence of tlie testator. Such
we, understand to l^e the e^tablislied, prtictice, both in the United
States and in England. In addition to the' cases already cited^ '•
see those collected by Cow. &.HiIl, 3 vol. 1351, noteS31. ' .
, In this Court, in AppQrson v. Cottrell, 3 Pointer, 66, a will of
land had been admitted to probate, on the proof- of two witness-
es onlyj but as it did hot appeaf but. that the absence of the
third witness had been accounted for, ot any question made in
the Court below, as to the necessity of producing him, the Coutt
hdd the probate by the two sufficient • This is in eflfeot a direct-
' V
JUNE TERM, 1845. , 541
Bowling V, Bowling, Ex'r.
decision upon this poiftt, for the Qbjection taken vVas nvell founded^
if the absence of a witness "'beyond the jurisdiction, would not
excuse his production, either in person or by'deposifion.
The act of 1806, (Clay's Dig. .598, § li.) authorizing a commis-
sion to issue to take testimony where' the sutscribing witnessfes
to a will reside out of the State,, does npt affect -th? view-here
tak-en. The evident design of the act was, to provide for those
cases where all the witnesses to a will resided out- of the State,
and was probably intended- to authdriz^ the'tl'ansmission of th^
will beyond the Stp-te. . ■ " • .' -
The known and admitted exce^rtionto tfee general rule, that
witnesses must rebate facts, anji cadnot' detail opinions, is. confin-
ed to questions of sci&rice, trad^, &c; The difficult question of
insanity appears^at least to' some extent, and in some cases, to
fall within the same exception, Ifoni the diffidalty ih ntany cases
of detailing, to a jury, the facts Avhich induced in-the mind of the
witness the belief of insanity, and to form a correct conclusion
upon which*, would require a previous knowledge of the habits,
demeanor, and mode of tlimikitig, and aeting, of the individual sup--
posed to be insane. •' ' ' ' ' , '
Upon this subject, as might perhaps h.ave been expected, a
gfeat differfenee of opinion is found to exist between different
Coufts. ' Some. Judges holding, ihat^he witness can only relate
facts, whilst others hold, that thp opinion of witnesses in connec-
tion with the facts, may be given in evidence.- Upoji the first
branch, see Corlis v. Little, 1 Green, 233; Crowell v. Kirk,. 3
Dev. 356; and. upon the -second. Grant v.«Thompson, 4 Conn.
203 ; Pool V, Richardson, 3 Mass'. 330; Wogan v. Smatll, Jl S.
& R. 1 4 1 , and R ambler v. Try on, 7 Id. 90.- . '
In the 'State v; Brinyea, ^. Ala; Rep.. 24-3, the question canre
b6for6 this Court, and the genej-al i'ule is thus stated : " When it
is necessary to prove to a jnry,.thlit one is insane, this is done by
showing ^ series of actions, or declarations, which evince an alien-
ation of mind ; the conclusion of jnsanity is to \>q drawn by the
jury, and must be deduced from the actions, or declaratiohs of
which evidence is giyen." It is subsequently admitted, that tliere
may be. exceptions to the general rule, " arising out of some pe-
cuhar relation, or connection of the witness, with the persoif
whose sarjity is questioned.*' It, appears also to be conceded,
that when evidence has been given of the conduct, mariner, and
542 • :'*' -^^^^fALABAMA.
,iBdTvii|i^ V. Bowling, Ex'r.
general appearancsMBP'the- person, medical men have been al-
lowed to expiess theirs judgment as to the question of sanity. [1
Phil. Ev. 290.] , .' ^
■ Jn this case the witness was T:jot permitted to express his opin-
ion to the jury, he admitting at the same time that he knew no
facts, or circumstance's, on which the opinion was based. As it
would seem impossible 16 form an opinion upon any subject,
without something, either real or imaginary, on which it was pre-
dicated, it is piobable that the witness meant, that his opinion was
formed from the general conduct, and demeanor of the testator,
which impressed' his mind with the opinion he entertained, but
which, he. was unable to.explain to others. But even considered
with this qualification, we think the evideiice was properly ex-
cluded. If it could be brought within the exception, hinted at in
the case of the State v. Brinyea, previously referred to, still we
apprehend, a mere opinion, for which no reason could be assigned,
would not be evidence, as it would be mere conjecture. This
would be to abandon to the witness the peculiar p'rdvince of the
jury, if such opinion exerted any influence, over it.
The only case we have found, in which an opinion alone, with-
out the f&cts on which it was based, was permitted to go to the
jury, is the case of Wogan v. Small, 11 S. &;R. 141, where the
question, " did you think the testator fityor unfit, to niake a Will ?"
was permitt(?d to' be put i bot in that case we apprehend, that if
the witness had admitted, he had no reason to give for the opin-
ion he entertained, and that it was based upon no facts which he
was able to disclose^ his opi^iion would have been entitled to no
weight whatevpF, • . ' ' . '
It is not shown that this witness stood in any peculiar relation
to the testator, so as to give him opportunities of judging, superi-
or to others, and thtis to be able to detect the aberrations bf the
intellect, which others not so well acquainted with him, would
not have observed — he is offered as an ordinary witness, and as
such, under any .possible construction of the- bill of exceptions, he
was* properly excluded. •' • . . ,. .^
Let the judgment be af^J'med. - . • •» -♦ '.
JUNE TERM, 1^45. 543
Tait, use, &c.v.Frow.
.-../■■ ••
TAIT,USE,&c. v.,FRaW. . •:
1. Where a writ of capias ad satisfaciendum issues -at the suit of one man for
the use of another, the defendant is arrested thereon, and enters into bond
with sureties, payable to tlie nominal plaintiff, for the use, &c. as express-
ed on the face of the process ; conditioned that tlie defendant will continue
a prisoner \*^ithin the limits of the' prison bounds ; in an action brought
thereon in tlie name of the dbligee for the benefit of tlie pajiijr shown to be
really interested, a surety is not estopped frpm alledging that the obligee
died previous to the institution of the suit. Nor does the bond amount to
an admission that the obligee Was livip* wlieu it 'jras executed.
2. The statute renders unnecessary' .the revival of ft. suit brought in the name
of one person for the use of another, where the nominal plaintiff dies dur-
ing its pendency, but it ddes not authorise the commencement of a suit in
the name of such partyj if he be dead 5 and the defenda.nt may plead his
death either in bar or (tbatement. . ' .
Writ of Error to the Cii:cuit Court of DAllas.
This ^as an action- of debt, at the suit of the plaintiflf in er-
ror against defendant, on a bond dated the 29th March, 1842\ in
the penal sum of seven thousand seven hundred and twenty-six
dollars, executed by Elias Parkman as principal, and the defend-
ant, together with Philip J. Weaver as his sureties, and payable
to Caleb Tait, for the me of Edward W. Mark?' ; conditidned,
that Parkman, a prisoner in the jail pf Dallas county, at the suit of
Caleb Tait, yse of E. W. Mqrks, should continue a true prisoner
within the limits of the prison bounds, &c.
The defendant, among other plfeas, pleaded in bar, that the
nominal plaintiff', Tait, ' departed this life previous to the com-
mencement of the action. To this plea the plaintiff demurred^
and his demurrer being overruled, he replied, that the bond de-
clared on was taken in conformity to the statute in such cases
provided ; that Tait was a nominal plaintiff, and that the defen-
dant-well knew he was dead before the bond was executed. The
defendant demurred to the replication, his demurrer was sustain-
ed, and the plaintiff^ declining to amend, or plead further, a judg-
ment was rendered against him for costs. ;
'Sii ALABAMA.
Taft, use, &.c. v. Frow.
(?. W. Gayle, for thq .^Taiiiliff in error, made the following
points: ^ -' , ■. .; '
1. The^<lea.th of the ^Jjf^Jii^plaintiff ^ould have been plead-
ed in akatpmeut. It £houf(i^[p.ve been .averred in the plea that
Tait die^^iW^'the bond. was executisd, or if previously, that the
defendant was i^orant of the fact when lie subscribed the bond.
If TJiit wasdeadwheii the uond was made, Marks was in effect
the legal oTbligee, and might sue thereon in his own name.
3. The bond. is. itself a reciord, and no plea can attack its va-
lidity ; this can only be done -by writ of error. [1 'Chitty's PI.
355 ; 5 Sei^t. & R.Rep. 65 ; 16 Johns. Rep. -55.]
3. The replication is an answer to th^ plea; for if Tg^it was
dead when the bond was executed, and that fact' was known to
the defendant, he would be estopped from pleading it. £Chitty
on BiJls, 177-8, andno'te2 ; -1 .H. Bl. Rep. 288-; 1 Camp. Rep.
1,80, C ,- 1 Chitty'sPl.'249, and.note.l; 3 T^iunt. Rep.. 504; 1
Saund. on PI. and Ev.,.42.3 . • ' ' . .,;/.
' C. G\ Edwards, for the defendant, 'insisted, that a suit could
not be brought in the name of 9, dead man ; that the replication
did not set up matter of estoppel ; .and .that the "plea was good
either in abatement or bar. [Jenk? v. Edwards, use, &c. 6 Ala.
Rep.. 143.]. . • '. ..•..: . .
COLLIER, C. J. — ^^It IS a ruJe of very ext^sive application,
that where one admits a fact or deed^ either by reciting .it in an
instrument ex^^Uted by him, or by. acting under it,,he' shall not be
received to deny its existence, . But when thetrath appears from
the same deed or record, which, would atherwise work the es-
toppel, then' the adversifr party shall "pot he 'estopped to take ad--
vantage' of the truth. . The obligors- in the bond declared on do
not admit that Tai-t, thd nominal plaintiff in- the execution, was
living ; the recital which precedes the statutory condition merely .
states the fact, that Parkman, the principal obligor, was a prison-. "'
er in the jail of Dallas county, at the suit of Oaleb Tait, use of
E. W. Maiiis, &e- True, Tait, for the i^ of the same individual,
is tnade the obligee, yet tliis .was intended merely that the. bond
might conform to the statute, \yhich provides, that " Any prisoner'
imprisoned in a civil action may enter into .bond With sufficient '
security to the plaintiff in double the sum of the debt or damages.
JUNE TERM, 1845.
^
Tait, use, &c. v. Frow.
&c." It cannot be said that the.obligors have made any admis-
sion, either impliedly or expressly, in respect to the state or con-
dition of the nominal or real party in interest. They admit that
process, such as is recited, *was in the sheriff's hands, and that
Parkman had been arrested under it ; but whether that process
was at the suit of a livipg m^n, or in despite of all objections is va-
lidjare questions not within the scope, of the act done, and conse-
quently not concluded by it. 'This we think perfectly clear,
when the character of. the bond, and the circumstances under
which it Was prepared and executed, tire looked to.
It is provided by .statute, where amy person shall institute a suit
in the aan;e of another, for his own use, the death of the person
for whose use the suit is instituted, shall hot abate it ; but the
same shall progress and be tried in the same manner as if the
suit was instituted in the name of the person for whose use it was
broughti [Clay's Dig. 3 L3, § 3.] This act, it has been held,
renders unnecessary the revival o^ (he action, wh6re tho iiominal
plaiiltiffdiies during its pendency; but it does not authoi'iso the
institution of a suit in the name of him who appears' to have- the
legal interest in the cause ©faction, if hens dead. ' Sach a case
is unaffected by .statute in this State, and the personal representa-
tives must> as*at cofrtmOn law, be the actors of record. . |^Jeftks
V. Edwards, use, &.C., G Ala. Rep. 14^.] It is clear then, that' the
suit could not be instituted in the name of Tait after hia^ death ;
whether, as he was dead at .the time the bond was executed, the
legal interest enured to his personal representative, c'l' vested in
Marks, the beneficial plaintiff,^ at-e cfuestions which are not now
presented, and we consequently forbear, t6 consid;er 'them.
In Jenks v. Edwards, tf^e, &c. supra, it was held, that, where
a suit is brought in the name of one person for theiiseofanothei',
the defendant n^ay plead either in bar- oc abatement, that the
nominal plaintiff was dead at tJie cdmmehcement of the suit, ^he
objection to the plea,' that it doe^ not allege tliat Tait died after
the bond was executed, or. if previously, that the defendant was
then ignorant of the fact, is sufficiently shown by the view taken,
not to be defensible.
It results from what has been said, that the judgment must be
affirmed* •. • ■ ■ , " ■', • •
69
546 ALABAMA.
Norartui v. Molett.
V^
NORMAN V. MOLETT.
1. When a contract in reference to the said of laijd is -signed by the vendor
only, and the purchaser afterwards transfers the written contract to anoth-
er, by Lndorsenient, investing that person with all his interest and claim,
' the signature of the purchaser withdraws the contract from the influence
of the statute of frauds. * ."- ..'
.".' Writ of. Error to the County Court of Dallas.- ,
, AssuMi'&iT by- Molett against INformsn, to recover $200 and
interest agreed to be paid for -certain lands.- . . '
.At the trial, the plaintiff offered in support of his^action, awri-
ting in these words, to wit : " I have bargained and sold to Bent-
loy Normari, a ptece of land to contain five acres i, said piece of
land to be laid off" in the north-east corner oi^-^Lc, here follows
a piinute description of the lands, and the writing then proceeds
thus : « That lot shall be among the first surveys tbait I will have
executed^ immediately after which I will be ready to take a pro-
missory note of said Norman, for two hundred dollars, with in-
terest from this date, payable 1st January, 1889, and to give him
pay bond for titles, to be made when the note shall be fully paid.
December 1st, 1836. This is signed by the plaintiff", and on the
back is written an indorsement, in the hand-writing of the defend-
ant, in these worjds, to wit : " Warrenton, Dallas c6unty, August
12, 1840. For vaJue receivedyl assign all my right, title, claim
and interest -td the within described land, to Wm. DeC. Young-
blood. . .•• , ■ • J. B. Norman."
The question was, whether this was a sufficient signing with-
'in the statute of fi'aiids, and the Court instructed the jury that it
was. The defetidant asked the Court to instruct the jury, that
they ought not to find for the plaintirf, unless there was a con-
tract, or mepnOrandum of it, in writing, signed by Norman, and
further, that there was no such contract, or memorandum in evi-
dence. ■ • ' , . ' .
The defendant excepted to the ruling of the Court, and the
same, question is presented her,e by the assignment of error.-
•'<
JUNE TEilM, 1845. ^
Norman y. Moleft.
Edwards, for the plaintiff in error, insisted, the indorsement of
the agreement. to another perspn, w^s not sufficient to take the
case out of the statute. ' [Dig. ^2.07, § 1; 14 Johji. 489.] In this
State, the construction of th6 statute is moi-e. Strict' than in' Eng-
land, and our decisions, go far to restore' the -statutq to its origi-
nal and irrtende J eflfect. [S Ste\^art, ^4'; Meofiey v. Read, J^ne ^
Term, 1842.- ' .' ' - - , '• ■". '
'' ; i* •• ' -^^ .": ; •; ■ • • • '
' G. R. Evans, contria, cited Shipteyv. Derri^ori, 5 Esp. 191 ;
» Stark.' Ev. 605n; Gale v. Nixon, 6 Oowen, 445 ; 2 Leigh N. P."
1044; Steph. N, P. 1954,; SAtky. 503; 20- Jdin. 340; 14 lb.
210; 16 Wend. 460. - : • - • •• ;
' ■ • • ' . ' "' V " ,
GOLDTHWAlTEs J.— The object of the statute of frauds
is, to protect individuals from haying parol agi'eements imposed
on tbem against their consent; but it has unifprmly been held, not
to defeat a parol contract which is afterwards evidenced by a
writing signed by the party SQUght to be charged with it It is
not essential that the signstturcr slioald be upon the agreejneDt it-
self, it is sufficiei^t if it be indorsed on it as a notification of the
assent of the party, bi* if ifbe written in a letter or memorandsm ,
which refers to the agreement. [2 Stark, E v. 60^.] . In the pre-
sent casejthe contract between, the parties was reduced to wri-
ting, and signed by Molett, at the time it was entered into, \fut
was not the» signed by Norman* Afterwards. Norman conveys .
the' beneficial' interest in the contract to anothoi- person, and as-
signs, by indorsement, the written evidence, o-f the contract, which
he had received from Molett. This seems t6 bring -the cduse di-
rectly within the influence of the decisions in iShipley v. Derri-
son, 5 Esp. 190, and Gale v. Nixon,, 6 Cowan, 445. Indeed the
only difference between those cases and this, is in the Circum-
stance, that in those the indorsement referred to matters of sub-
sequent action between the parjties themselves, whilst in this, it
is the attempt to invest a third person with the right acquiredby
the contract, which was parol only. The mischief intehdod te be
prevented by the statute, cannot have place under the" matters
connected with this case, for if the signature of Norman Was ne-
cessary, to evince his willingness to be bound by th& original stip-
ulations, that is shown by his assigning his interest in it to
another.
54S ALABAMA.
■*> ; . .
•WrijSfht V. -Bolton & Stracener.
4
It is said,,however,-4here is nothing in the terms of the con-
trafct expressed in the instr,ument, which made it obligatory on .
Norman, to give his notes to, Molett, and that the indorsement ■
may have been accompanied with the. stipulation on.l^e part of
the indorser, to pay to Molett, the sum which he was to receive
as the c'onsideration of the sale of the land. If- this was conced-
ed, it would not change the legal aspect of the cause, inasmuch as
Norman becomes bound to pay the purchase money in' the sanr>e
manner, by his subsequent written recognition of the contract,- as-
if he had signed it^t the same time as Molett. ,
We think the law of the'.case was,correctly ruledij3i> the Court
below, audits judgjnent is -therefore affirmed. •.
*■.•'•"? ^ .*■ ' • .*'.'• -c ^ •
•.-'^•*; vr:v.,>;r ■■:'■'■■. : ;. '.*•■• r-; \\ :r-". -^
• • * WJRIGHT V. BOLTdN& ^TRACE^ER.
1. WhepG a cause jiepending before a' justice of the peace, is J)y agreement
of the parties, Submitted to arbitrators, who niade an award Which was
efiterftd jip as the judgment of the Court, and an appeal taken to the
■Circuit Court, the award is Imal, unless sgt ajside for corruption, want of
notice^ or "other imjH-opet conduct of the arbitrators, as well in the appel-
late ad in the inferior Courts. ^. " ' . ■ • .
Error to the Circuit Court of St. Clajr. . ' .' v"
\ . •' •
This Was a warrapt; by the plaintiff in error, before a justice of
the peace, for the value of a cow, killed by the defendant in er-
ror. Upon the trial before tlie justice, the parties by a verbal
agreement, left- the matter in dispute to the arbitration of threa
persons, who being sworn; and having heard the evidence, made .
their award in writing, and a^essed the plaintiff's damages- to
eleven dollafrs, which yras entered up by the justice as the judg-
ment in the ca^e ; from, which the ' defendant appealed to the
Circuit Court. Upon the-tric^l in ,that Court, the plaintiff again
proved, and relied on the award, as conclusive. This the Court
JUNE TERM, 1845. 549.
— — : ■ — *^ ,
. Wright v.Boiton&,Stracener. '
overruled, and proceeded to the trial of the eause de npvo, and
evidence being introduced tending to prove, that the defendants
vi^ere not guilty, of the trespass, he rendered a judgment for the
defendants, from which the plaintiffin error prosecutes a writ of
error to, this Court. ■ • "
Bowpojj, for plaintiffin err^r, contended, that the av^^ard, un-
less impeafched for fraud, oi' some improper conduct of the arbi-
trators, was conclusive of the fights of the pai:ties, and cited 2
Stew. 130; 4 Porter, <)5;. 1 Ala. Rep. 184, 27S ; 6 Cowan, 399;
14 John. 96 ; 1 Caines, 304 ; 15 John, 197, 497 ; 17 Wend. 410;
3 Caine, 166 ; 1 Litt. 322 i Litt. S. C. 264 ; 4 Monroe, 47, 247 ;
3 John. 367'. ' '•
S. F. Rice and, Pope, cOntra. ' . - -. ' ' .. .
ORMOND, J. — From the return of the justice of the peace,
it appears, that this was an award made pursuant to the statute,
(Clay's Dig. 50,) which declares, that the award shall be made
the judgment of the Court, "and shall not be invalidated, set aside,
or appealed from, unless it shall be made to appetn*, that the
award was obtained by corruption, evident partiality, or other
undue means." No such testimony was offered in the Circuit
Court, the evidence only tending to show, that the defendants
were not guilty of the trespass,, whilst the plaintiff" proved and re-
lied on the award. •
It is however wholly unimportant, whether the award is con-
sidered as made under the statute or not,' as it is eq;ually conclu-
sive as an award at common law, and c^n only be impeached
for fraud, want of notice, oT other improper conduct iji the arbi-
trators. In the absence of sUch pro6f, the award is final, and
conclusive upon the rights of the parties. . . • • < .
The judgment must be re versed, and remanded. • •■]■
V
-V' -'■
»
v650 ALABAMA,
difji ^_ .
Alford and Mixon v. ColSon,)6se^ &,c.
ALFofo AND MIXON ^v. COLS dr>, USE, &c.
I. Wh^re thera is a 'defect in pfoceedinge removed by appeal or certiorari
from a justice of the peace* to tlj6 Circviut or Coimty Court, a motion tadis-
• miss, if available, shpuld be made at the flrsl tewn after the parties Are in
Court, and before a continuance ofthe cause. ; . • .
I. An execution -v^as issue^ by a justice of the peace, at ^e suit df C. against
the goods and chattels of A, and levi9jd on' a slave, which A-made bath
was the property f6f W; and held by -the .affiant ;as his. agent : a trial of the
right of propeity was hgid between the plaintiff in execution gind A, as
agent, and tlie slave condemned to^ satisfy the execution ; A then, upon
his petition, obtained t certiotari and entered into bond with M as his sure-
ty, and the cause being jemqye^ to the Circuit Court, was dismissed,^ on
metion of C^ thereupon W appUed for a. wri£ of error,'tujd executed a bond
with surety for fts prosecution. ■^e/rf,,ihat i? W w^ the owner* of the
• ^q.ve, the claim of property and all Subsefquent proceedings- should have
a^n in his name^ instead of the name of A, as ag^nt ; thai W could not
prosecute a writ of error on the judgment of dismissal, pud that the judg-
. ment, was correct. , . . . ,. .
Writ of error to the Circuit Court of Monroe.
An execution was issui^d by a justice of the peace, at the suit
of the defendant in error against tt^e goods and chattels of the
plaintiff, A)ford, and levied on a' female slave, which Alford made
affidavit was not, his property, but that Henry D. Whippel was
her owner. A trial of tht right was thereupon had before the
justice, between -the plaintiff in execution and Alford, the agent
of Whippel, claimant, a . verdict was. rendered in - favor of the
plaintiff, and judgment rendered c6nde"ln|iing the slave to the sat-
isfaction of the execution. • ,..- '
Alford presented his petition pra.ying that certiorari might be
awarded, to remove the case to a higher Court for trial, which
being granted, a bond was executed by the petitipner, with Mixon
as his surety ; conditioned as usual in such cases. At the second
or third term after the caiise was removed to the Circuit Court,
the plaintiff in execution moved to dismiss it for the want of a
proper affidavit. T^ereilpon it was ordered that the claim be
JUNE T^RM, 1845. 551
Alford and IVf ixon v. Colson, use, &c.
dismissed, and that.the jpdaintiff reqpver of Alford and Mixon the
costs, &c.^
From a bond for the prosecution of a writ of -error, it appears,
that Whippel applied for the same, and entered into bond with
surety. The 'Cv'rit of en'or descrl-bes the cause idetermined in the
Circuit Courf to hate been between Colson, use, "&c, against Al-
ford and Mixon, withiHit noticing Whippeh . . .• ;
• . W". B; Leslie, for the pJaintifF in error, itisisted that the cause
should not have been dismissed by the Cirpuit Court, nor a judg-
ment for costs rendered against Alford artd his surety.
CQLLIER, C. .J..~ilf at any time the Circuit Court should
have entertained a motion to dismiss, for a defect in the aiBdavit
by which the claim x)f property'' was interposed before the justice,
it was certainly too late after one or more conti;iuanccs of the
caus6, subsequent to the, appearance of the parties. This point
has been repeatedly so i-uled in analagous cases.
If the slave was v the property of Whippel, the claim should
have beea. interposed in his name. But instead of thus proceed-
ing, the defendant ia execution declares that he held the slave as
the agent of Whippel, and the statement of the case befor.e the
justice, as well as the petition for a certiorari, and bond conse-
quent thereon, show that in' the character of agpnt, he was the
claimant. Conceding that ^Iford's possession was, as he affirms
in his affidavit, and still hi^ principal should have been the party
litigant, instead of himself. ' ',
It was clearly competent for the Courl.to have looked into the
case, and if it appeaa'cd that the clain/Was made by an improper
person, to have dismissed it on motion. ' This coiiyse could not
have been pi'pductive of injury ,to any onq ; for if the cause had
been tried upon an issue to the jury, 'and a verdict returned for
Alford, as agent, &c. the, judgment must have been arrested.
The fact that a writ of <3rro|- bond wafe execnted by Whippel,
and a writ of error applied for by. him, as the condition recites,
can Have no.effect upon the case. • . ,
We have extensive powers in respect to the amendment of
writs of error, so as to adapt them to the transcripts they are in-
tended to remove.' But here, tljerc is, no want of conformity of
652, ALA-BAMA.
Graham, et ai. v. Abercrombie, et al.
one to the other,- and consequently no Occasion for the exercise
of the power.
It- has been shown, that • although the daim could not have
been dismissed for a defect in the affidavit xjierdy, yet it was
properly disposed bi because the claimant was also the defend-
ant in execution, and if, as ag^nt, he could have made the neces-
sary affidavit and executed 4he btmd, yet the pi^oceeding should
have been in the name of his principal, and thus progressed to
the close. T lie consequence is, that thq judgment must be af-
firmed. ''•'.■ .
GRAbAM^ET AL v. ABERCRDMBIE, ET AL.
•1. When the petition of administrators claiming distribution as the represen-
tatives .of a distributee is dismissed, and tlie final settlement in the Or-
phans' Court is made with other parties, the proper mode to revise the pro-
. ceedinga .rejecting the claim is by certiorari,' and a writ of error will be
dismissed.
2; The interest of a distributee in an unsettled estate, is the subject of as-
signment ; if one is made, it divests the interest of the distributee, so that
no proceeding can be had hf hie repl-esentatives against the administrator;
his assignee is thereby invested with all his rights, and they may be as-
serted by him ill his own name. .• . ,
Writ of Error to the Orphans' Court of Lowndes.
T»E transcript of the'recol-d of this cause contains the entire
proceedings in relation to the estate of Alex. Abercrombie, from
the grant of administration to its final settlement. So much as
is necessary t© the correct understandhig of the errors assigned
here, will be recited.
Administration was granted On the 2d August, 1841, to Mar-
tha Abercrombie, the widow of the decedent, and Thomas Aber-
crombie ; at the same time an order was made, authorizing them
JUNE TERM,, 184^. 553
<j!raham,' et al. v. Aberprombie,- et al.
to sell tne pejjishable property of the estate, at public auctic«i, on
six months credit. ' > ' ■ ^
] On the 1st of Noveiiiber of the sj^me year, as the record recites,
Mrs. Abercrombip filed her petition, setting forth, that the dece-
dent died without issue, whereby she by htw is entitled to one
on6 half of his personal estate ; that'the estate is in no manner
embarrassed, or: in debt, and therefore she prayed an order for
the division of the- est^itd.^ An order tvas acpordjrigly made, that
the whole pf the persona? estate should be divided into two parts,
by certain commissioners then named, and that one part should
be set apart' to . her, to be determmed by lot What purports to
be a division and allotment is fourid in the transcript, under the
signatures of three of the persons named as cominissioners, and
at the foot is. written, « examined, admitted, and the. usual orders
to be-made." Signed by the judge of the County Court, on the
Sd January,- 1842. . • • '
On the 21st of No.vember, of the same year, Mrs. AberCrOm-
bie, as the record Recites, petitioned the Judge of the County
Court tQ award a 'writ of dower, she cflledging that her late hus-
band died seized and possessed of certain lands, described bn-the
minutes. The order for the writ was made the same day, and
the writ, which is oopjed into the transcript, was then issued. A
return of certain persons styling themselves commissioners, sum-
moned by the sheriff to. lay off the dower, (fee, appears, allotting
her one half the lands described in the return, which are the same
as mentioned in the previous order. This return bqars date the
21st January, 1842, and was exapiined and admitted. The clerk
was also directed to enter said dower upon record, and to file the
return as an office documentv
On the 3d July, 1842, Thomas Abercrorabie returned a sale
bill of one half of the personal property allotted by the commis-
sioners as before stated. . '
On the 27tli March, 1 843, Francis M. ATjefcJrorobie, and Alex.
Graham, as administrators of James Abercrombie, as the tran-
script recites, petitioned the Court to issue a rule to the adminis-
trators of Alex. Abercrombie, to show cause why they should
not make final settlement and distribution of the estate among the
several heirs; and a rule was accordingly granted for them to
show cause, on the 2d Monday of May, then next An alias rule
was ordered by the Court, on the 19th day of June, of the same
70 t
654 , ALABAMA.
Graham, et al. v. Abfircrombie, et al.
year, for the administrators to shovjic cause, on the first Saturday
in August, and no further proceedings seem to have been had up-
on the rule, until the 25th ofNoVernber, whem.tBo-ftiinutes recite
as follows ; ,. . • .
This day the petition of Francis W. Abercrotnbie and Alexv
Graham, administrators of James Abercrombie was considered
by the Court. Petitioners claimed to represent their intestate,
■who was an heir and brother of Alex. Abercrombie, and prayed
for a rule, &c. Upon the return' of the rule, the administrators of
Alex. Abercrombie deceased,, appeared- mCoUrt and put in their
plea, stating that James Abercrombie, in his life-tim'e,duLy assign-
ed his distributive share to be paid apd "delivered td William
Burroughs, and that they had duly promised and assumed to pay
the said Burroughs. The opposite party did not appear and
join issue; the cause was then continued to this term, and upon
evidence adduced, the Court was of opinion that said James Aber-
crombie had assigned away his interest ; and that his adminis-
trators have no interest in the estate of Alex. Abercrombie.
"Whereupon it is ordered by the Court, that said petition be dis-
missed, at the cost of the petitioners." The Court also ordered
the petition to be recorded in the minutes of the Court, and the
original, with the pleas, to be filed as office documents. After-
wards, at the same term, a final settlement of the estate was
made, and the following persons ascertained as distributees, to
wit : Thomas Abercrombie, Archibald Abercrombie, Mary Bur-
roughs, wife of William Burroughs, and James Abercrombie, to
William, Isaac, Cyrus, Mary and Eliza, children of Elizabeth
Billinsglea, the said Mary being the wife of David Long and the
said Eliza, the wife of Hamilton Moore.. All these persons nam-
ed as distributees are the brothers and sisters of the decedent, or
children of a sister. The partoCMrs. Billingslea to be divided,
share and share alike, between her children, and the part of James
Abercrombie to remain in the hands of the administrators, to
abide the process of the law. > The administrators were order-
ed to pay the several amounts ascertained to the distributees.
Another distribution was made of another portion of the assets,
one half to the same parties, and the other half to Martha Lowry,
formerly Abercrombie, she having since intermarried with Wm
Lowry, who by the intermarriage became, in right of his wife, a
co-administrator. •bV"<'v*^'
JUNE TteRM, 1845. 665
Graham, fet al, v. Abercrombie, et al.
The writ of eiTor is prosecuted by Alexander Graham and
Francis W. Abercrombie, as administrators of James Aberbrojm-
bie, against the other parties to the settlement, and the errors as-
$igned ai'e as follows : ' • , ,
l-.vThe actiiin of tlie Court in the featterof the petition of Mrs. '
Abercrombie for a -division o'f the personal estate of the de-
cedent. ' . •
2. ^The action of the Court in granting her petition for dower
in t)ie lands, without gi^^ing the legal notice.
■ 3. In allowmg the return made of the sale of the slaves of the
estate, ■ ' ' "
. 4. The action of the Court upon the'petitionof the plaintiffs.
5. In allowing the .account of the administrators without pro-
per notice.
. 6." The action of the Court in'' the final decree. ^ . •" ; •
A. Graham, for the plaintiff*" in errof, submitted the following
points : - v . .
1. The plaintiffs are parties to the final decree, as their infes*
tate is recognized as entitled to a distributive share,' therefore
they have the right to re-examine all matters affecting his in-
terest. , '
- 2. The order to divide the estate is irregular, as no other par-
ty was before the Court than the widow. The act evidently ap-
plies only to cases where the distributees are not the same per-
sons as the personal representatives. [Dig. 196, § 22.] But if
a division was proper under the act, parties were essential, and
none are made. If the proceedings are sought to be sustained
under the other enactment, [Dig. 173, § 5,] they are not con-
formable to it in any respect, [Gi'een v. Green, 7 Porter, 19.]
3. The allotment of dower in the real estate is erroneous, in
not conforming to the statute. [Dig. 173, § 6, Green v. Green,
7 Porter, 19.]
4. The sale of the. slaves, 6tfc. ought not to have been approv-
ed, as no necessity existed for the sale. [Dig. 196, § 22 ; Dear-
man v. Dearman, 4 Ala. Rep. 521.] As the sale was irregular,
the decree should have been for the property in specie, instead
of the price. [Dig. 305, § 43.]
5. The petition of the plaintiffs for distribution is founded on
the statute. [Dig. 196, § 23.] If the creditors or assignees of a
556 r.' ALABAMA.
Graham, et al. v. Abercrombie, et aL
distributee wish to assert rights to the distributive -share, they •
must resort to another tribunal, but the assignment pretended here
cannot be permitted to, interrupt the usual course of proceeding.
If it is conceded the matter shown wtis sufficient to dismiss the
petition; it furnished no gr^ound To direct the admmistrators to
retain-.thepo^'tion coming to Jame$ • Abercj-onlbie, or his as- >
signees. . "
. 6; The allowance-of the accounts was irregular, As no notice
was given, nor does' it appear when they^ were stated. There
is an entire omission to, conform to the statute. [.Dig. 229, § 41,
43 ; see aJso,, Robinson v. Steele,- 5 Ala. Rep. 473.] . . >,•
•. ' 1. • ' " ■ . • ■• . .
. ^. Cook, coHtra. •.-.».. , » -• .
0.OLDTH WAITE, J.— 1. • The first inquiry here, is With re- -
ference to the rights of these plaintiffs to sue out a writ of error
on the final decree. In terms, they certainly ate nbt parties to
it, and though in it the assumption is made, that James Abercrom-
bie once was entitled as a -distributee, yet the assumption also is
made, that his interest was assigned during his life-time to some
other person. The decree is neither in his, or his administrators*,
favor ; but the representatives of the estate then settled, are di-
rected to retain his distributive share to abide legal process. In
this particular, then, the decree i? a denial to recognize him as
entitled to distribution, and resolves the question into the same
one which the Court below decided, when it dismissed the plain-
tiffs' petition. . ,
In proceedings at common law, and usually in equity, the plain-
tiff sets out the nature of his claim upon the record, and that is
inquired into, at the same trnae as the other matters in dispute; but
the mode pf proceeding is different in testamentary causes, before
the eclesiastical coorts.. In these, the administrator, &c. in pos-
session of the fund, is entitled to call upon the party invoking the
aid of the Court, to. prppound his interest, and if the interest is dis-
puted, to controvert it by an exceptive allegation. [McRae v.
Pegues, 4 Ala. Rep. 158.] If the interest is made to appear, the
petitions is admitted as a party, and if, upon .exception, it cannot
be shown, the petition is dismissed, because it is the interest alone
in the subject matter of controversy, which entitles the one party
to call upon the other. In its very nature, this investigation is al-
3\J^^ TERMj 1845. 557
Grabfun, et al v. Abercrombie, et al. ■
ways a preluwnary proceedings and if dismissed, the party has'no
right to interfere with subsequent proceedings until he is reinsta-
ted, InCawthorne V.' Weissingci\ 6 Ala. Rep. 714, we applied
this rule to a creditor of an insolvent estate, .whose claim had
beeii rejected in la proceeding ccfmmenced prior to the act ©f lj843,
[Dig. 195, § 14,J and held, that the proper mode of examining the
order rejecting his claim, \vas by certiorari. The p'inciple af
that decision, is supposed to governthis .case, and shows, that the
proper mode to examine th^ order .dismissing the plaintiffs as
parties, is Jay certiorari, and not by writ of error. To avoid any
misGonqeption as to the eji^tent gf the decision, it "is proper to re-
mark, that by virtue ofthe actl)efore cited, a writ of error is now
given to the individual creditqr, apd to' the personal tepresepta-
tive when the contest is bfetween- them, upon the admission or re-
jection of a claim against an insolvent estate. ,
The result of this conclusion is, that the writ of error must- be
dismissed, but as the parties would probably jA'Oceed in the mode
indicated, without a decision upon their claim, it is proper fiow
to consider whether the plea assuming the fact stated by it as
true, is sufficient tcf bar the plaintiff from proceeding fo enforce
distribution. ' . / /
The act which provides, that any person*tentitled to the distri-
bution of an intestate's estate, may at any time after eighteen
months from the time of granting admininistration, petition the
Orphans' Court for a distribution, [Dig. 198, § 23,] merely regu-
lates the mode in which the Court shall procbed ; but its juris-
diction over the matter of distribution, may be referred to its gen-
eral testamentary powers, wbicfi are given by another act. [Dig.
300, § 21.] Indeed, this act seems to stand in the place of the
statute 22 and 23 Chas. 2, c.'lO, by vdiich the ordinaries in Eng-
land were invested with, jurisdiction to compel administrators to
settle the estate, and pay the same by due course oi eclesiastical
law, without the limitation imposed by the subsequent statute of
1 Jas. 2, c. 17, which restricted the compulsory jurisdiction, ex,-
cept at the instance of some person on behalf of a minor, a
creditor, or the next of kin. See these statutes cited 4 Burn. E.
L. 369.
It is evident, in the. very nature of things, that there must be
some mode, and some Court, by means of which an administra-
tor may be relieved from the responsibility of ascertaining, who
558 ALABAMA.
Graharfi, etal. v. Abercrombie,et al.
are entitled to the surplus in his hands, ^and under whose direc-
tion a. payment may be safely-made. ]lk true, no adjudication,
either English or American, is to be foUnd, which. touches the
point, biJt it seems in some degree established by the course of
proceedings in the eclesiastical cOurtsi Thus it is said, the credi-
• tors to>\vhom the testator owed any thing, «nd the' legatees to
whom the testator bequec^hed any thing, and all others having
an^ interest, ai^e to be cited to be present at the taking bf the ac-
count; otherwise, the account made in. their absence, and they
never called, is not prejudi<;iaj^6 them. And again, it behooveth
the executor, or administrator, when-he is cited by an/one of the
parties to renden an -account, to cite the next of kindred, in spe-
cial, and all others in general,, having, or pretending to have, in-
terest in the goods of the deceased, to be present if they think fit
at the rendering and passing of the account. And then, upon
their apj)earance, or contempt in not appearing, the Judge will
proceed'to give sentence, and the account' thus determined will
be final. And this is expedient to be done, whether [the account
is settled] at the instance of any party or not. [Burns E. L.
369, citing Swin. 468, and 1 Ought. 354.] After the Court has
pronounced on the validity of the accounts, the executor or ad-
ministrator ought to* be acquitted, and discharged from further
molestation and suits. [lb. 371.] In the Archbishop of Can-
terbury v. Tappan, 8 B. & C. 151, the Court of Kings' Bench
admits that an administrator has the right to require the sentence
of the ordinary for his own prqtection, and determined, that no
suit could be maintained on his bond without one. If then, the
administrator is pi^otected by the decree of the ordinary, when
there are distinct-claims for distributron, why should he not be
protected when the claim is between "the distributee and his as-
signee ? or what right can a distributee who has assigned his in-
terest be said to have, which will enable him to cite the adminis-
trator to an account ? We can find no answer to these questions
which do not go the whole extent of denying the validity of any
assignment of the interest. , • .
Now the general rule in equity is, that a chose in action is as-
signable, and vests in the assignee all the interest of the assignor.
^ [Story's Eq. § 1039 to 1057.] Beyond this it has been repeat-
edly held, that if the debtor assents to, the transfer, when the
chose in action is a debt, the right of the assignee is complete at law,
JUNE TERM; 1840- • 559
Graham, pt aL v. Abercrombie, et al.
SO that he may maintain a direct action against the debtor. [See
cases cited Story's Bq. § 1039.] A distributive share canliot be
said to be in the nature of a debt, as it is", entirely uncertain iii
amount, until ascertained by the settlement, and therefore no suit
fit common law can be maintained, in the nam^fe of the assignee.
But in equity he is entitled to proceed in l)is own- nan>e, directly,
against the cestui que trust, and we can see no just reason why
'he-niay not proceed in the same! mafiner in the Orphans* Coqrt,
where the transfer is, with sespeclfto a matter in which that
Court possesses concurrent jurisdiction certainly, (if not so ejf:-
clUsively,) with a Court of EquityV It i*s true the Statute-of 1843
seems to contemplate that the settlementof esti^tes shall be made^
by the personal repi'esentative on the one hand, with the lega-
tees, or 'distributees, on the other, as'it requires the party to file a
statement on oath, of the names ofthe heir's, or legatees of the es-
tate. pDjg. 229, § 43.] But we have seen that the same mat-
ter was necessary according to the common course of pr^ictice
in testamentary causes, and therefore the proper construction of
it is, to consider it. as merely affirmatory of what the law then
was, and as introducing no new rule. We are the nijore strong- ,
ly inclined to this view, as the entire scope of our legislation up-
on the subject of the rights of distributees and legatees, seems to
be, to give the Orphans' Court concurrent jurisdiction, to say the
least of it, .with Courts of Equity, of all rnatters affecting their
rights. Besides this, any other construction would throw either
the assignee or the administrators into a Court of Equity, to res-
train the action of those plaintiffs who, u^n the record, are shown
to have no interest in this litigation!
Our conclusion is thatif Mr. Abercrombie,in his life-time, assign-
ed his interest in this estate to another, his representatives are not
entitled to be heard in its settlement, add that all his rights have
devolved on, and may be asserted by, his assignee, in his own
name.
It will be seen, we have omitted to examine the other ques-
tions made by the assignments of error ; this is not because we
consider them unimportant, but because they do not affect the
plaintiffs, until they show themselves entitled to raise them, by
being parties to the record. j . . ' .
Writof error dismissed. " .'
500 ALABAMA.
Wright" V. Powell. •'
■■< <'i • ' • — r 7 ' ^-^
^ ■. . WRIGJIT V. PbWEl.L. '
1. One who contracted with two persons engaged in running a Stetimboat, aa
pilot, cannot charge a third person as a partner, who' was not in fact a part-
ner, and had never held himself out to th6 world as such, but who had done
■ some acts from which it might have been inferred he was a partner, but of
which the perSon so contracting, was at the time wholly ignorant, and did
npt engage as pilot in reference t© his -responsibility.
, Jirror to theCrfcuit CotirJ of DallajS.
-. /This action was, brought, by the plaintiff in €rror, against the
defendant, as late" partner qnd joint ovyner, with three other per-
sons, of thesteamt)oat NorthStar, upon a due bill of the clerk of
the boat, to. the plaintiff, as pilot of the boat, for $933 50.
Upon the trial, as appears from tb? bill of e^ceptipns,there was
evidence that plaintiff's intestate regarded Abram Powell, and
Eldridge Gardner, alone as the owners of the steamboat North
Star, until after their insolvency, and that he had contracted with
them, on their credit and responsibility alone. There was evi-.
dence that Hudson Powell, ,the defendant, had held himself out
to the public as an oWnei'j by calling the boat his, and contract-
ing for supplies, &c, for her. Under this testimony the Court
charged tlie jury, that if the plaintiff .looked on Abram Pow-
ell, and Eldridge Gardner, alpne as the owners, and contract,
ed on their credit and responsibility alone, he could not hold Hud-
son Powell liable, if not actuaHy an owner, although he might
have held himself out to the world as an owner, and was thereby
made liable to other third persons, who' might have contracted
on his credit ;, to which charge the plaintiff excepted.
The charge of the Court is now- assigned as error.
G. W. GaylS:, for plaintiff^in error, cited Story on Partnership,
95, 97 ; Watson on Part. 5 ; Gary on P, 45. < . .
Evans and R. Saffqld, contra, cited, 1 Camp. 404 , Chitty
on Con. 70, 243 ; 10 East, 264 ; 11 Wend. 87; Story on Part.
J UNB. TERM, 1845. , \:wi
Wrighfrv. Powell.
.96 ; CoHyer on R 44, 214 ; 3 Car. & P. 20^ ;/ 4 N. €ar. Jl. 127 ;
J Johi>.Ca* 171; G Pick. 372r 15 Mass. 339, -, ^ • •. .
" ORMOND, J.— The general principle that one who holds him-
solf,t)Ut to the world as a partner with others-, is liable for the
partnorshiji dpbis, although in factjle jnay -not be a pantner in the
conc.ern, or entitled to- share in the .profits, is uticioiiblGd, and is
not Qontrovqrted.in this case: Putit is'insisted, that a^ this fact
^as unknown -to the plaintifTin error, and as. he gave credit.to those
wlio in fact were partner's in the colicern, the rule does Hot ap-
'ply. ' Such is our opinigri. • Tho pule is doubtless laid down by ■
th? text writers in terms sufficiently broad, tCv cover the proposi-
tion as aontended for by the counsel fo;i* the plaintiff in error^ but
in applyiijgit, regard must -be had :to the'reason of the rule, and
the necessity which led to its establishment. •' .
In the leading case of Waugh v.Garver,2.H. R,54^,in the judg-
ment of Gi Justice Eyre, the rule, and the reason upon w;hich it is
founded, are both stated in the most lucid mattner: ** Nbw.a.casc
may be stafedi in which it 4s the. clear sense of the parties to the'
contract, that they shall not be partners ; that A is to contribute
neither labor nor money, and to' go still farther, not to receive any
profits. But if he will lend his name as a partner, he becomes, as
against all the rest of the world, a partner, not upon the ground of.
the real transaction between them, but upon principles of gene-
ral policy, to prevent the frauds to -w-hrdh creditors would be lia-
ble, if they were to suppose that they lejit their mohcy upon the
apparent credit of three, or fcur. "persons, when in- fact they, lent it
only to two of them, to whpm without tho others th6y would have
lent nothing.'' . .• v .r, . .
It is very clcjir, from this Qpinion,.that the reason of the rule is,
the credit which is presudied to be giveo by- one, thus holding
himself out to the world as a partner, or peniMtting his name to -
appear as one of the partrtci's, .and the injury which would ac-
-crue to the creditor, if the suppo$ed pai-tricr Was afterwards per-
mitted to contradict it. So in De Berkom v. Smith & Lewis, 1
Esp. N. P. 31, Lord Kenyon says, "'though in point of fact par-
ties arc not partnci'S in trade, yet if one so .rqji-escnts himself,
£«id by that means gets credit for- goods' for the other, both shall
be liable." '. ' .;
The decision of Lord Mansfield in Voung v. Axteil, cited in 2
71
553 ' v, * AtABAMAv
Wright v..PowelL
H. B, 242^ frorp tn^nwscript, is reTled wi as aij authority, that if
the defendant had held himself out at «ny lime as a, partner in
running the "bo^t, by clainaing to be a part owner, and contract-
ing for supplies, ho Woulcibe responsible M the plaintiff^ though
he did not know of these' acj«, and did not contract in reference
to his responsibility, 'but to thijt of others, who were in truth the
only"persons engaged in I'unning the boat, as partners. In th'e'
case eked, Mrs. Axteli suffered he?^ nttnle te be'used in carrying -
on the business, and upon, that -ground the decision turned, and
the expressions used by Lord Mansfield were made. That " as
she suffei'ed her name to .be used in the busines, and* held' herself
out as a partner, she was certainly- Iiable,'th6ugh the praintifFdid
not, at the time -of (lealing, know that she was a partner, or that her
name was used." The reason t)f this decijiion evidently is, that hy
permitting her name to be used in the firm transactions, she gaVe ar
credit to the partnership to the public genei'aHy ; she was osten-
sibly a partner, and therefore whether one dealing with the firm
was ignorant, or not of the fact, he was entitled to treat her as a
■ partner, as she had by her conduct precluded herself from deny-
ing it. ^
No such fact qxists in this case. -The defendant had not per-
mitted his name to. go before the world as one of the partners in
the firm transactions, he had merely done acts, from which one
cognizant of them, might have presumed he was a partner, and
and if, acting on that presumption, he had given credit to the firm
considering him as one of its members, there would be great
reason in. holding him responsible, for the false confidence thus
induced. But that is not this easel The defendant was not in
fact a partner, nor had he done any act to induce the plaintiff to
consider him as one of th? firm, nor did the plaintiff, in entering
upon his engagement as pilot of the boat, look to his responsibili-
ty for the payment of his wages, hecannot therefore succeed in
this action. -
The principle here laid down, ils abundantly sustained by the
authorities. See the cases cited by the counsel for the defendai^t
in error.
Let the'judgment be affirmed. .:
JUNE TERlVIi 1845. , 563
Wood's Adm'r V. Browji.
• » • ■ ■ » > ■
'.,; ^ • WOOD'^ ADM'R V. BiROWN. ',..-
1. The act of December, 1644, declaring thq,t " itshaH.not h^ lnwFbl for aqy
of ,the Jiidges of the Circuit or County Codrts," to sign bills of excep-
tion,after the adjournment of tfie Courts ■unless by -counsel's ^consent, in
writing, jbl longer time, Jiot beyond ten days ba-^iven ; is mandatoiy. in its
' terms, and ititended,- to provide for an evil wbifeh reqtures that it sliould be
intei7)reted according to tl\e import of the language employed ; consequent-
; .jj a, consent exteji^iogtlie time for perfeq^ting the bill mugt be In waiting. •
Writ of Error to the County Court of Dallas. '•*'..'
The defendant in error moves to strike 1;he IjiU of exceptions
from the record, on the ground that it Ayas signed arjd sealed by
the presiding judge after he ha^l adjourned hhs Cpurt fo?^ the term.
The facts are substantially these,- viz: Certain -questions were
reserved at the trial, and a bill of exceptions was drawn up by
the defendant's counsel, and handed to the judge during the term;
as usual in such cases, the judge gave it tQ.the plaintiff's .counsel,
who then, or not long afterwards, requested that time might be
allowed for examining and no'ting' objections to the bill. There-
upon the defendant's counsel expressed a wish to be present when
the bill was being examined and passed upon, aiKl asked that a
day might be fixed for that purpose. The docket was exceed-
ingly heavy, and being satisfied that the bill could not convenient-
ly be examined during the tcj'm,m_ compliance with the request
of the defendant's counsel, a day«was a|)poitited exceeding a week
from the adjournment of tho court. This arrangement, it was
understood, wns verbally assented tq, by the counsel on both
sides. Accordingly, on the day appointed, the judge was fur-
nished the notes of objections, alterations and additions of the
plaintiff's counsel, and with the ^jd. of the suggestions of the
counsel of the respective parties, prepared and- signed the bill
now found in the record. When the bill was signed, the presid-
ing judge had no intimation that the act of 5^0th Decennber, 1844,
which prohibits the allowance and signing of bills of exception in
564 ALABAMA.
Wood5» A^m'rv. Browfi.-
•>.
vacation had passed, nor is th<5re reason to believe that the coun- '
sol on eithpr sMc were a wfire^ of the existence of the fict. • .
GrW. GaYi^b^ for the plaintiff ^n error« , -'. - ..''.v'" ''
C. G. EftwABDs, for the defendjtttt. . ' * ;- . * ' *. r • '" '
; [pOLLlER, C. J.^B.y thqapt^of 2Sr)"th Decomber, h4i,Jt "rs
dnaclfid, '• that hereaftw it shdllno^ be lawful for any of the judg-
es of the Circuit or Couinty. Courts' to. -give or sign bills of excep-
tion, after the adjournment of the.Gourt, .at' whidi they -may pre- •
side, at which the exception may,betajien: Provided how&per,
by- the consent of counsel reduced to- writing, a longer time may
be allowed, not to extend beyond ten days from the adjournment
of said Court." Further, " it shall be" the duty of each judge of .
the Circuit and Cpunty Courts, when they sign bills of exceptions, '
to add thereto the correct jdate of such signing." . ' .. '•
- Theterms of -this enactment- very clearly indicate, that'it-is. •
notjaiereiy directory to tbe judges^ but that it is niandatory, and
its observance, imperative. It declares that it shall notlie lawful
for any of: the judges to sign Mils of exception, &,c. and is pM a
direction to them to perfect bills in, term time.'
The evil compMined of was, that the judges were frequently
called upon after^the CoCirt at vyhich tlie causes had been tried, '
had adjourned, to seal bills of exception, and when the facts and
the points reserved had faded from their memory; that sooner
than submit to the suspicion of not being willing to have their
judgment revised,, they- som^imes signed- bills which were inac-
curate, and which occasioned a reversal to the prejudice of the
other party^ To avoid such; a result, the act in question was
passed. .• . •. .• > '; .•,••'-'''■
* . The assent of the parties, that the ju<^ge might retain the bill,
examine an^ sign it after Court, we think can- have no influence.
The statute, by v*fay of proviso to the sweeping prohibition, de-
clares that the consent oi counsel, in writing, may legalize the
signing, if made within ten days after the Court closes its sitting.
This /Jromso must be regarded as "an exception, and equivalent '
to an express inhibition fo" sig6 a bill out of term time, unless t^
consent is thus giVeni.'- • ' ^
• We decline considering, at this time, whether the defendant
can have the benefit of his bill of exceptions, by adopting the
JUj^JE- TERM, 1845i 5C5
Jones, et j^l. v. Tomlinson.
course prQsctibcd' by tlje act ol" 1826^ where the judge faijs of re-
fuses to certify an oKceptitai takeaen.the trial of a cause. A mo-
tioil having |that objcct-in^vicw, wiHbecotertained and adjudica-
ted when it -i^ explicitly made.
Qur^eonjolusion is, that irrthe present aspect of tlie case, the bill
of exceptions cannol be regardied'as a' part \ of the r,ccord, and-
wrH thereforq, be striGken-out.- . ■ .' . " '. . •• •• ^. " •. '.
' , • J'ONES, ET AL. vl TOMLINSDN. ' / '
1. It is no sufficient ground to dismiss a certtorrth c?i,iisc,'that'thc^p>efitian was
verified before the clerk of tliq Court instead of -some offlfcer auUiorisied to
administer an oath. ■ .. _
Writ of Error to the Comity Court of LauiJcrdale county.
Trfis cause was originally a suit before a justice of the peace
of Lauderdale county, and was removed to the Courity Court, up-
on the petition of the defendants.
When the cause cam^ to the County Court, Tomlinson, the
plaintiff, was non-suited, lor not a'ppearing ; -afterwards, on his
motion, the non-suit wa^ set aside, and the certiorari dismissed,
because the petition was sworn to before the clerk of the Court,
he having no power to administer* aij odth. Judgment being ren-
dered for costs against the defendants, they, prosecute their writ
of error, and assign the dismissing o.f thp certiorari as matter of
reversal. < * ^ *
-" ■."■
Wm. Cooper, for the plaintiffs incerror, , ■^'
No counsel appeared for the defeedant. . , '
GOLDTH W AITE, J.— The cdristant course of practice is to
discourage the dismissal of appdaland certim-ari causes for any
matters not connected with'thc rights of the parties. If "it is con-^
im
ALABAMA:
Sorrell \v Crafg, «Adirfr.
ceded tbe dcrk of fiie'Gourt has no. authprity to adinmister an
oath in Vacation, except in gases expressly dis.'ected' by iaw^ this
was no reason to disirass the ifertiorari, as the Court shouldhave
looked to this matter before avVardi«g the writ; dr if it after-,
wards' became 4n any mannfcf impoitaot, the petition might iiave
been verififed when th§ caiase wafe proceeding: Wo do.nQt per-
ceive, hovyover, in. what manner a, yerificatibn of the petitioR is
important, except as shewing- the Vue grounds upon whiqh the
certiorari is asked; and if all the facts 'stated were false, it W(>uld
not affect the validity ofthq writ, or prevent tl>e cause from be-
ing tried de novo. " • ■ ' . . - ' '
In Curry v. Briarit, 1 S. <S^ P. 51, it is ^id, if the ju<^ge. gi^ant-
'ing the certiorari deems the facts stated to be sufficient, the
. Courts will not afterwards entertain motions to dismiss.
.. We think the- dismissing the cause, for the ground stated, was
error."' , ' , [/
flfver»ed''an4.remaiided... . . . '
K ^^.*
• . ?••
■ ' -K
SORRELL^. CR^IG, ADM'R.
1. A plea, to an q.ction of covenant, 'that since it was made, so much thereof
as required ifie defendant to deliver 1,300 bushels corn, 20,000 lbs. fod-
der, six, horses, 75 head of. hogs, and 25 head of cattle, was waived by a
subsequeflt contract, between said defendant and .said testator, in his life-
time, so th9,t 6&id defendant was not boupd to .deliver said horses, cattle,
oxen and hogs, ?is*'may happen to di^ or be lost, without any neglect of
defendant, beforethe day appointed for their delivery ; and defendant avers
that a large number of said hors6s, cattle, and oxen, did die, or were lost,
without his default^ before the time appoitited for their delivery, &c., is bad
because an executo^ parol contract, cannot be pleaded in bar of an action
upon a sealed instrument. And also, because of uncertainty, in not alledg-
• ing how many of the hotse§, &.C. had died, or were lost. ' ' . "
2. A will by which -a testator charged his children witli the debts they owed
- him as a part of. their portion, except one child, whose debts were notmen-
JUNE TERM, 1845. * 567
Sorrell V. Craig, Adm'r. '
. tioned, dqes'not.tp^e th<5 prje^umptibathat «uch- debts weie released, tl^e
ey idei>cc9''tJtiereof being, retained- by him uuc^neolled. ■ . .
3. When a certain time is fixed for tlie delivery of ponderous articles, no die-
mand. IS riecessaVy to put the defendant in defaiiltj though he m^y defend
hiluself against th§ aciioq, by proving his readiness on the €ay.-
Err6rto*tTi6 Circuit Court ofDaltas. .' • :
Cdvj^n ANT broken by the ^defendant iil drror, ' agarn^ the Jjlain-
tiff, upon a c6venant exec tiled By'tkcdefendant, Vvith ttie testator
of the- plaintiff, for tlie 'lease of ceitaip lands,' apd -the delknery,
onthelst'Jfenuary, 1841, of certain articles therein mentioned;
ThJD defendant pleaded several pleas of . perfbl'mance, uppn
Which issues were taken, and also several special pleas; which
were deitiurred to, the fourth being in stfbstance as.fallow&; That
since iho execution af the deed, in the plaintiff's' declaration men-
tioned, so much of the covenants in 'said deed, Us required the
defendant to deliver 1300 bushels 9 f corn, 20;00p lbs. of foddfe;*,
six horses, 75 head of stock hogs, and 25 head of cattie,"W^S waiv-
ed by a subsequent contract, betvveen said defendant and testa-
tor, in tiis life-time, so that the said defendant was not bound to
delit^ersaid horses^ cattle, oxen ^d hogs, Which 'may Happen Vq
die or be lost, Xvithout any neglect of ,defeiidant,, before the day
appointed for the delivery, and defendant avers that a large num-
ber of said horses, cattle and oxGii diddie, or were lost, without
the fault or neglect of thfe defendant, befojce the time appointed for
their delivery, &c. To this plqa the., plaintiff domun-ed, and the
Court sustained the demurrer. * • •' , , ;
The defendant also pleaded,- severally, a tender of the articles
to the testator, in his life-time, aiid to the plaintiff, upon which
issues were taken..
From a bill' of excepfioiis, it' appears "that tho defendant offer-
ed in evidence, the will of the testator, inade after the j5eriod had
elapsed for the delivery of the art'wilcs mentioned in the covenant,
for the purpose of provihg that tlie testator had oliarged several
of his sons and sons-in-law, with certain amounts which they
owetl him, giving to'each of his sous, and sons-in-law, equal por-
tions of his estate, and deducting such indebtedjicss from the por-
tion of such indebted son, or sou'-in-law.' Thtit this Was done in
relation to several of the legatees, but not in refation to the de-
ALABAMA.
Sorrell Vi Craig, Adm'r.
fendantj.ol' whose ii^yiebtedness 'nothing-Was said in the will^but
on motion of the"" plaintiff, the wHl \vsfis excluded frojrV^the jury, to
which "tKb defendant excepted.^ There .W^s no evidence, of 'any
demand by th'6, testator -ki his lifQ-lime, 61* his executor s'mce his
death, of a^y orthe articles §ued for, and the defendant asHed the
Court to ^harge the jury, that W enable the plaintiff to- recover,
pro<:^iof such demand, or somethifig equivalent ,\vas' necessary,
but the evidence shjowinff that said articles were to -be -delivered
oij a certain specific day, and \rith r©f(5rence tp the. state of the
pleadings, the oharge wag refused by th^CoQrt, and 'the defend-
ant pjcceptcd. The.Courf charged the jury, that under the .plead-
ings, it xlevolved on th(i defendant to provCthiat he had, ilelivcrod
the aj-tic]es, unless 'it otherwise/ "appeardid in the caifscJ; to all
which 'theplamtiff'exceptcd. ' .. ^ ,
. He ^ow aSgigips for error,. the judgment on the demuirD^'^o t)ie
pltJa, and the mattqrs set forth in the bill of exceptions. ' ,<*
" vEvAN?, for the plaintiff in error, cited 1 Starkie'3 Ev. .418; 623;
32'En^ Com.. i.aw, 73T ; 3 Ala.Jlep. 16,371. . .. *. -• .
. . . E^DWAfiDS, (fbntra, qited 5 Ala. Rep. 245 ; .Minor, 411 ; 1 Stew-
.art;554;.3^Litt. 19S!. - ."./ . - ^•. -. . 'v • :
ORMOND, J. — "The plea relied on in this eausQ, as a bar to
'the action, was clearly defective, .;A ,<?ontract under s6al, mgcy be
dischargpH by a parol executed contract^ but fin •executory parol
contract, cannot be pleaded in bar tp one under seal. . j^l Chitty
• on I'leadmg, 48-^;, and'eases eited ; see also Rarelli v; O'Connor,
6 Ala. Rep. 617, and cases citjedVand MeVoy y. "Wheeler, 6
Porter, 201.]' . ■ " ' '•-.*''.' , "'
The pieais also bad for uncertainty, for want' of an averment
of the number of horses, cattle and hogs which <^ied, or were lost,
without fdult or Qegloct on his part. This was a matter pecu-
' liarly within the loiowledge of the defendant, and which he Was
thefore bound to state with precision. Thd allegation thjit a
large number of the hoi'ses, cattle and pxen, died or were lost,
Without fault or neglect on his part, presented no point upon which
issue could be taken, and tlie derpurrer to, the plea was properly
sustained for this cause, as well as for the reason previously as-
signed. ' - - . '' ' .
JUNE fl^JlM; 1845. is©
Graham) •et a)I v. AiiercroroWe, et al.
The .Court did not err in^^xcludgig the •^vtll of the father of the
defendant from the jury. ■ The inference attempted -to be derived
from it, was, that as the general scheme ofthe will,'was an equal
division apaongst all the children, and as the testator had charged
some of the ch1ldj-en, with the deb^s they owed tiim as part of'
their portion, and had otnilted i^ll nscntion of the claim under thi»
covjcnant, that^iV^as the intention of the testator to release all
claim to this demand. This inference^ it appears to us was un-
warranted. The general r«le. is, that a debt is- not released by a
Ijiequest to- the debtor, the evidence of the-debt remaining uncan-
delled,-but to .produce that result,' there must he evidence of a
cleat 'intention to release the debt. The law is thus stated by.
this Court in Sorrlle v. ^orrlle, 3 Ala. Rep. 248, where the ■ques-
tion arose tfpon this will. ■ ' ' . ^ •
The inference therefore arising -fi-oni the w.ill, would'seem to be
the reverse of that for which it was introduced. At all events^
no implication such as that which it was intended the jury should
make, could be deduced from the mere silqnce of the testatbr, as
to this debt, the evidence of which it appears remained uncancel-
led, amongst his papers, and the will was. t^^e^efo^e properly re-
jected. ^ . .
There was no necessity foi' the plaihUff- to. .prove, under the
state of the pleadings', that he made a demand of the articles sued
for, previous to bringing the ^uit. When a certain time, as in this
case^ is fixed for the delivery of ponderous articles, no demand iS-
necessary to put the defendant in jdefault, though he may defend
hitnself against the action, by proving that he was ready and
willing* at the time and place appointed by tjie contract^ to deliv-
er thenrt. [Thackstoh v. Edwards, 1 Stewart, 524"; McMurray
v., The State, 6 Ala. Ilep. 336.} . . -'
Nq plea of a. readiness to deliver was interposed. The plea of
tender is not an equivalent plea, but if it was, the burthen of prov-
ing it was assumed by the defendantv
From this examination it appears, that there is no error in the
record, and the judgment pust be therefore affirmed. •
., . • • 72 ■':.■•
670 - : ALABAMA.
jpoe, dtdem. Cha]idit>V V. Ma^e.
."■>,.
(».•
DOE, EX DEM. CfiAtTDRON v. MAGEE.
I. A 1(9 pen^ns duly prosecuted au*d not collusive, is noti(je to a piirch^er,
so as to affect and bind his interest by the decree 9 and the lis pendens he-
-..^ins at least from the service of the ^ubpana after the bill is filed,. and by
■" analogy, after, publicat^n regularly, inade, as to a non-resideiit defendant.
In the latter case, the newspaper in which publication is p(riiitedy wheij
.. aided by the production of the order, and extrinsic proof that the pap«r
., was regularly issued as .contemplated by it, woujd, be- competent evidence
' toshowthe pendency of the suit v . '
2: Whether one purchases' of a mortgagor previous or subsequent to the dom-
mencement of a suit for the foreclosure of a mortgage, it is not necessary
' to make him a party, and such subsequent purchaser nfeed not be made a
" party to affect him with the lis pendens.
' Writ of Error to thp Circuit Court of Mobile. - '• * ' '; *
^ This was an action of djectment, for the recovery 'of certain
lots of land situated in tiie oity of Mobile. The defendant en-
tered into the usual consent rule, and the cause was tried b,h the
plea of '" not guilty ;" the jury, returned a verdict for the defend-
ant, and judgment was' rendered accordingly; On the trial, the^
plaintiffexcepted to the ruling of the"Court,*flnd the bill of excep-
tions discloses the folldwiiig case, viz : The plaintiffintrodqced as
evidence the rec6ixi of g, suit determined by the Court of Chan-
cery sitting at Mobile, at the ^uit ofDuval's heirs against George
Getz and Joshua Kennedy ; the object of which was to foreclose
a mortgage executed by Getz to the ancestor of the complain-
ants ; or else to set aside a cohveyance made by the mortgagee
to the mortgagor of the premises in questioh, and let the com-
plainants into the possessionof the same. Further, he gave in
evidence the deed of the register, by which the mortgaged pre-
mises were convey^ to him as the purchaser at the sale made
under the decree of foreclosure ; and then proved their location,
the value of the rents, &c., " and here rested his case." The
defendant then' " introduced a deed from Getz, 'the mortgagor,
dated the — day of -^ ,1836, together with various other
deeds ; all going to show a conveyance of the property in ques-
JUNE TERM, 1845. 571
Doe^ex dern.'Ghoudron v. Magee.
ticm, after th6 bill for a foreclosure- wa6 filed, and before th$ de-
cred -was iaronounced." Tcv prove" the pendency of the suit in
equity, at the time* and previous to tho execution, of the deeds un-
der which the defendant cl&iriis, he adduqed the newspaper in
which the order made at the March term, 1835, Of the Court of
Ghtlncery, was published in-s June an<][ Jqly of that year; The
defendant's counsel objected to the admission of this evidence*
and it was excluded by the Court. > . ' . •' .. ■ •.*. •
The -plaintiff then offered to prove tjiat Henry Hitchcock, un-
der whom the defendant clajnled, was. informed at the time that
he jnade the purchase from Getz, of the premises in question, that
the biUfor a foreclosure wa& pending ; andsuch- proof was ac-
tuaHy adduced. Whereupon, the,Qourt x5harged the.jury, ♦♦that
if Hitchcock purchased the property in dispute fromGfetz during
the pendency of the suit in equity, he w^^ not entitled to notice;
^rfd is bound by the decree. If he' purchased before any suit
pending, he ought to have been made a party to the siiit by ya6-
poena, or publication. The pendency of the suit commences as
soon as the defendant is made a party'; if made "a, party by
subpoena, it commences as soon as the subpoena is served"; if by
publication there must b,e evidence from the record that publica-
tion was made ; jf there- is no such evidence it i^ to be presumed
that he answered as soon as he was notified, and the pendency
of the suit commences fromfhetimeol'his answer. In this case,
if Hitchcock purchased before. the defendant Getz ansWered, he
ought to have been made a paity to the^suit."
, I- ■
•J. Test, with whom wasrX Gayle, for the plaintiff in error,
insisted that Hitchcock was not an essential party to the bill to
foreclose ; he-had notice bf its pendency, though the complain-
ants may not have been informed of his purchase, and that notice,
hovvever communicated, was sufficient to. bind him. He stood in
the place of the mortgagor, and could only claim the equity of
redemption. A notice in fact should certainly be regarded as
equivalent to a registry of the mortgage, which by construction,
operates a notice, and by statute is declared to be sufficient to
prev^at an incrumbancer, not in possession, from l^eing defeated
by a Subsequent purchaser, s .• • . - '
. COLLIER, C. J,~The question how far the pendency pif a ,
572 . ■' ALABAMAN;
Doe,ekdenL,ChLaQ4ron v. Magee.
suit was notice to a piircl>aser from the defendant, w.as raosi'
elaborately considered -in Murrary- v, Ballouy 1 Johns. Cli. Jlep.- ,
566. Chanceltor Kent there ^id, ''^ The estabFiShed rule is, that
a lis pendens, dujy prosecuted and,npt collusive, is notice to a*
purchaser,, so as to affect a^d'hipcl his interest by the decree;
and the lis pendens begins from the? spi'vice of the subpoena after
the bill is^ filed." • To the same ^ffpot are Murray v. Finster,*2
Johns. Ch, Rep. 155 r Heatlej: v.. Fibster;, g 'Johi«L Ghk Rep4
158 ; Murl-ay V. Lylburn; 2 JAhns. Ch. R'ep. 441 ;^ (jreen^ et al.
v..Slayter^ et al., 4 Johnsv Gh. Rep, 38u In Culpepper v,- Aus-
tMi,-2 Gh; Ca3. 1J5, ihe testtitjor had conveyed lands to his ex©-
catorsin fee to pay his .debts, and after his death the defendant
purchased .the lands of the executors for a valuable consideration,
pending a bill brought by the heir to have the lands, on the ground
that they were not wapted to pay debts. It was held by the
Lord Ghancellor that the pendency of the suit between the h^ir
abd the trnstee (although .there was no notice- in f^ct,). was
suffici.ent. notice in-la^v, and the defendant purchased at his pefil;,
so that if it appeared the sale was unnecessary and improper, the
heir woold recover against th6 ^Durchaser. The result was- that
the defendant lost his 'purchase, .though her had purchased and
p?iid the money the same day the bill was exhibited, [^ee Self
v.Maddox, 1 Vefn; Rep; 459.^'Finoh v. Newnham^ 2'Id. 216;
Newland on Con. 506 ; Garth v. Wa^d, 2 Atk. Rep. 174 ; W'ors-
ley t. Scarborough, 3 Id. 392; Harris, et al. v^- Garter's adm'r
et al. 3 Stew. Rdp. 233.] "Sir William Grant, Master of .ihe
Holls, said, " He'-who puaxhases during the pendency of the suit, '
iiS bound by (ho decree tha,t may be made. agains't. the person from
whom he: derives the title. • The litigating parties iare exempted
from the necessity of taking any notice of' a title so acquired.
As to them it is as if n6 such title exi^dd. Otherwise, .suits would
be interminable, or which would be tFie.same jn effect, it would
be in the plpa^ure of qn<^ party at what period the .suit should be
determined. The rule may sometimes operate with hardshipy
but general convenience- requires it." ^ [The Bishop of Winches- '-
ter v. Paine, 11 Ves. Itep. 194. See eases collected inKinn^'s
LawComp. 131, 132; and SPirtle's Dig. 73-75.] ; s .^ '
These, citations very satisfactorily show, that the rule we hare
stated is well established. If it does not, oiperate until process is
served upen a resident d^endant, we would say after publication
JUNE TERM> 1845. 573
Doe^ ex dem. Chau^on V. Magee. ■
, , ^ — - — ^ -., .
as to a ncn-resident, there was, auch dilis pendens as would affect
a purchaser with' notice. Publication is a' means provided by
statute, for bringing in a non-resident defendant to a suit in Chan-
cery, and as it respects the action of thp Court,. is equivalent to a
subpoena. If necessary then^ to shpv5f that parties were made,
inx)rder to pverfeaoh and defea,t the litle '.of -the jiurchaser ac-
^■qvdvcdr pendente life, yie can . conceive of ^ho o*bjec;tion to the ad-
piission oOhe newspaper in w.hich.tj>e ordoi'^f publication ,5vas
printed. Perhaps it might be insufficient evidence to make out
the i^et, in itself; but when aided, by the productios pflbe order,
and parol evidence that the paper was regularly prinfed Etnd is-
sued as it purports, the proof would be jampld.. If the.order did
not appear of record, it might perhaps, be necessary to have iticn- ~
teved' nunc pro tunc, unless it was recited - in a decret&i order
subsequently made, by which the bill was taken for confessed'.
But there is nothing in the bill of exceptions to. S'how that the tp-
cord in Chancery was defective, unless it be the' charge to. the
jury,; .apd this, is a mere hypothetical statement qf the law, as
understood by the Circuit Judge. .. , '^ / ••
In Ciill.um,4>t al. v. Batre's ex'r, 2 Ala. Rep. 426, .we decided,
that to a biJl for the foi'eclosure of a morgage, it was not neces-
sary to niake either a prior or subsequent incumbrancer a party ;
that the rights of the former are parapnount, arid'thjelatter,i'Vvhere
Jie is not made a party, will, not be concluded. [See Judson. v.
Emanuel, et al.. I Ala. Rep. 598 ; Walker, etal.rv. The Bank of
Mobile, 6 Ala. Rep. 452.] It is perfectly cle^r, that Hitchqock
, purchased previous to the institution of the suit by pqval's heirs
V. Get? and Kennedy, and under no circumstances was it ne-
cessary to have i^ade him. a defendatit in that case, in order to
aflfect him with the lis pendens. ■ "He was a ipuvch:3isG€.pen(lenie
&Ve,^nd in legal pi'esumptipn^.hM notice. ^ ■ .
•-This view is decisive of the cause, and the consequence is, that
the judgment is reversed,jand the .cause retjianded.
,574 " *:' ALABAMA: .rC
S. & E, Travis v. Tartt, . •
•* * ' S.^ 4& .E. TilAVI^ V. T^RTT. ; . '
* ' i» t ' ' • • V ' ' '« . . * . '
1. A{)roceetlingby.gartiishme'ht is the insfitmion bf *^irtt by tSe fittacliiin'^
creditor, against the debtor oF his .debtor, and is governed b|y the general
rules applicable to Qther suits adapted to the i-dative position of ^e
parties.' • ' * . ■> ••
2. When-.bqfe of a firm is gamisheed the creditor mijStfceciinaiderqd as elect-
A iDg_to proceed against him solely, and on his answer, admitting- the indebt- .
■ 6dn6ss of the firm,, is entitled to have judgment against liim. -f
3.: A suit conjmenced against one partner of a firm, will survive against hip
personal representatives, and may be revived against them by sd.fit, . . ^
4. When the creditor omits to proceed against the personal representatives of
one -deceased for eighteen months, and omits also for the same time to ^re-"
■ sent his- claim, the statute of non claim is a good bar to the sd.ja. '
5. If this' defence is asserted by answer, instead of plea to the sci.ya. the
plaintiff should demuc^ but the Court ought not, without action by the
plaintiff, render a judgment on the sci.fa., disregarding the answer.
Writ of erKxr.to the Circuit Court of Sumter. . . > • • » • -v
•;.:,.,■■ -/ -^ - ■ v.--. ••, ^.■- - ■ ■ •-•^v. :,^-
. BRowNRieG' & Tartt sued out an- attachment against onfe
Hodges, returnable to the' faH term of the Circuit. Court for the
year 1839. The return is, th^t no ^i-operty was found, but Enoch-
Travis was supimoned as a garnishee. At the return term Tri^*
vis appeared arid filed his answer, bywbich he admits thathini-
sfelf and brother, Seaborn Travis, as {partners, .jointly purchased
a tract of land from Hodges, for which they gave theirjoint prom-
issory notes, signed S. & E. Travis ^ one of them dUe ist' day
of March, 1840, for 81,850, or thereabouts ftbe other fot- the.
same amount, due 1st March, 1841. .These notes were payable,
to Hodges, and delivered to him, and Hodges afterward^ deliv-
ered them to his wife, by whom, as the garnisliee believed, they
were taken to North Carolina. What then oecame of them,
the garnishee did not know, hut he believed they continued in
the possession of Mrs* Hodges.
No further proceedings in the causb appear to have been taken
until the sprin.g term, 1842, when it was suggested that Travis,
(he garnishee, had died since the filing of his answer, and a gci.
JUNE TilRM, 1845. 675
S.& E.Travis v.Ta^
fa. was- ordered to Seaborn Travis, the legal representative ofthe
said garnishee..'. * . ■ . • • ' '
. At the fall term of the^same yeaK, the -order for 'sa. /a. was
Fenewed, as it also was at the spring term, 1843, but \k both in-
stanoes-to Sojabora-Trhyis, as the* admkiistratcp upon the estate ■
Qf Enoch Travis, decease.d. Upon this a sci.'faJ issued but was re-
turned not found. At the fall term l843,apff/iassci fa. was order-
ed to issue to Siaaboni Travis ; a!^*in the vacation one issued to
Seaborn Travis- and Amos Travis, jr., as executors 6f the last will
and teste ment of Enoch Tra<^is,. deceas^ed, to appearand show
Cause '\Vhy they should not be'made.parties^ and judgment rer^
dered against them. I This set. fa. is r'etuvney executed, and at
the spring term, 1844, Amos Travis, as executor of Eijocih Tra-
vis, appeared and filed an answer, in which he admits the ap-
pointment and qualification of himself an^'Seaborji Travis as
executors, but asserts that they were qualified in .the. spi-ing of
the year 1841, and that the debt in this belialf was not presented
to either of the executors within eighteen rnonths after the grant
of letters testamentary. He denies that Enoch Travis was in-
debted to Hodges, except as partner m the. firm of S. & E. Tra-
visj and that the indebtedness of that •firm survived, tq Seaborn
Travis,' and is n^ot<lCie from the executors ofthe de9eased part-
ners, He' also asserts his infoi'mation„ that the debt to Hodges
has been paid by Seaborn- Travis, in his. character of surviving
fiai-tner. . •'•. '
* »The Court,':upon the -appearance' by attorney, of both the ex-
ecutors,'as is stated in the judgment entry, and upon the answer
of Enoch Travis, whi^ch was filed at the return ofthe attachment,
rendered judgrnent against' the defendant in attachment, and af-
terwards againit -the executors of Enoch Travis, of condemna-
tion of the-nionies due from S. & E. Travis to Hodges, to the
amount of the judgment and costs, and awarded execution to be
levied de bonis tesiatoris,. •
I The. executors of Tr^avis-now assign several errors in the pro-
ceedings of the Court below, but of which the principal are — 1.
That the suit is not such as survived against the pei'sonal repre-
sentatives. 2. That the claim, when sought to be enforced
against the executors) w&s barred by the statute of won claim.
E. W. Peck and L. CLARic,for the plaintiflfs in error. - :;.*
•*.
576 ALABAMA. '
S-«Sz,-Ew3rravi? v. Tartt.
•R. H. Smkth, contra, cited .Aikin's Pig'est, ^59, §.1, upon the
survivorship. A gnrnishment is a legal suiti* and govetoed , Jby
the sartfie general rules as any otjier ^uif. . [TKomas v. Hopper,"
5 Ala. Rep. 442.] - , . .- /
• 'T'he det'ence of « non-claim Cannot'be allowed' under' the oir-
cOmstances of this cause — 1. Because the plaintiff in attachment
had not the evidence of the debt within his power, so as to be
able to present it. 2. Because the service of the sci. fa. relatps
back to! the service of the garni^jiment', and binds the estate fron>
that time. . 3. Because the right erf the plaintiff was initiate 'by
the attachment, which stopped the debt, which thereby was plac-
ed within the custody, of the Court. j^Dore v. Dawson, C Alal
Rep.712.j ..
GOLDTHWAITE, J.— 1, The proceeding by garnishment
in point of law is the institution of a suit in which the creditor is
permitted to proceed against the debtor of his debtor, and there-
fore would seem to be governed by the general rules applicable
to other suits. "[Thomas v. Hopper, 5, Ala. Rep. 442.] But hi
the ancillary suits which grow out of the attachment law«, the
proceedings, v\fheh not prescribed by the statute's must, to a great
extent be adapted to 'the condition and relative position of the pat-'
ties. [See Goodwin- y. J^Yooks, 6 Ala. Rep. 836 ; Grav^ v.
Cooper, at this term ; Myatt v. Lockhartjlb.] " < '.
2. We may consider thfe suit theii, as instituted by the plaintiffs
in attachment, through the tnedium of their debtor, against Enoch
Travis, and the question arises on his answer, ifa judgment could
properly be rendered against him, uppn the disclosure that he
was indebted, as one of a partnership firm, to the defendant iti at-
tachment. The act of 1818 proyides, that whenever any cause
of action may exist against two or more partners, of any ddnomi-'
nation whatever. It shall be lawful to prosecute an action against
any one or more of them ; and when a vyrit shall be issued against
all the partners 6f a firm, service of the same upon any on& of
them, shall be deemed oquivaletit to a service on all. Here the
garnishment is issued against one partner only, and therefore the
plaintiffs mpsl be considered as having elected to proceed against
him solely, and we think it cfear they were entitled to have judg-
ment against him upon his answer; but after that was made, and
before any judgment rendered upon it, his death intervened, and
JUN^ T^RM, 184&. . 577
S.&E. Travis v.Tartt.
therefore. the further. question arises, whether thie suit survives^
and was properly revived against his personal tepresentatives:
3. It will be observed the statute does profess to change' the
liability of partners from joint to joint, and several ; it allows the
privilege of sueing each partner and provides that a service on *"
one shall be equivalent to a service oniill. ' As the statute neithet
directs that a suit, when "once commenced^ shall or shall not sul*-
vive, we must look to the probable intention, to be ascertained in
the ^rst instance from the act itsfelf, and beyond it from the then
existing law. As the privilege is given the creditor, of considering
the service on one as bringing all the partners before the Court,
the other clause, which warrants a suit against one only, would
se^m to .be entirely useless, unless such suit, w-hen commenced,
would survive, and might be prosecuted against the personal re-
presentatives. It is true, that by the common law, upon the deatli ,
of a partner, the remedy was gone, at law, against his personal
representatives, but in equity the liability was held to continue,
and, it is said, could be enforced by bill, whether the survivors
were solvent or otherwise. [Story on Part. 514, and«ases there .
cited.] Indeed, in this respect, it is now recognized as the 'well
settled doctrine, that there-is no distinction between the debts due
from' partners, and those due from othenjoint detftors. In equity,
all arp considered ^s joint and several, ahd the creditor may pur-
sue the personal representative of the deceased joint debtor, or
partner-, whether the survivors arfe insolvent or otherwise. [Dev
vaynes v. Noble, 1 Mer, 529; Story's Eq. § 67B, and cases there
cited.] It is tru6, in Marrv. Southwick, 2 Porter, 351-, it was
considered by this Court, that a creditor could not pursue the per-
sonal representatives of a deceased partner, in equity, without
alledging §ind proving 'the insolvency of the survivor ; but it is
there conCfeded, that if suit, was commenced, under the statute,
against one of a partnership, it would survive against his person-
al representatives. See also, as bearing on this subject Von
Pheel v. Connelly, 9 Portei*, 452L^ Trann v. Gorman, Jb. '456;
Bartlett v. Lang, 2 Ala, Rep. 404 ; Bean v. Cabbiness, G lb. 343.]
The remedy at law, uijderthe act previously cited, was further
extended by an act passed in 1839, which gives the right to credi-
tors to sue and recover their demands at law, of the- personal re-
presentative of a deceased partner, without haying fifst prosecu-
ted the survivor to insolvency. The act is^Jimited by two provi-
73
678 * AIiAl3AMA.
S-fcE: Travis v. Tajtt.
SOS, in these teVnis : "^ Pfovided, the plaintiff shall, before irlstitut-
mg such suit, 'nKlke affidavit in writing, before the clerk of the
CQUrt-,or Court itself, .to be filed with thfe papers, that the survi-
vor is insolvent, or unq.ble to pay the amount qfthe d^ebt ; or is
bej'ond the jurisdiction 6i Vae CoMxi: Provided, further, that
jvhen any such representative is^"teue4 separately^ which may be
done without such affidavit, no execution shall issue against such
represent£ttive .until' an execution -is ftowa ^c?e ran, and returned
mtiUa boTta as tpthe sulVivors.'V The first joroviso seems to con-
teo) plate, that when the suit is commenced against the represen-
tatives of th6 deceased partner, and no suit at that time is institu-
ted against the survivor, that the affidavit is a pre-requisite,; the
■sfecond, that when suit is commenced separately against the re-
presontative of the deceased partner, and the survivors at the same
iivne; the affidavit is not necessary, but no execution can be taken
out "until one is made. From this review of the legislation and
the decisiofis bearing upon this subject, we come to the. conclu-
sion that a suit coH^menced against one partner in his life-time sur-
vives, and may "be prosecuted against his personal representatives.
It follows there-fore, that the soi. fa, against the personal repre-
fientjitives in this case was' proper. . , '^ ,
4, In RobinsOn v,.SWt,'? Stewart, 90, it was heldj that,a gar-
nishee was not discharged by. the omission to take a judgment
against him ^t the return t-drm, no judgment having then been
had against the defendant. Iij Leigh v. Smith, 5 Ala. Rep, 583,
a judgment nunc pro tunc, was allowed a garnishee several
terms after. his answer. See-also, Gaines v. Bierne, 3 Ala. Rep.
'114; Graves V. Cooper, at this term-
It follows from these decisions, that as no judgment was entered
against the garnishee, whep,^ he made his answer, it might be
rendered subsequently, whether of the term it was entered, or
nunc pro tunc as of the term -of his answer ; or at the term after-
wards, when judgment was rendered against the defendant in
attachment. When' therefore thepersonaH representatives were
called on by sQi.fa. to show cause why they should not be made
parties to the proceedings, it was their privilege to show any
cause which existed" at^ that time*, to di»cliarge the estatQ. which
they represented. The statute ofnon claim is, one intended not
only for the protection of the administrator, but is also for the
benefit. of the heirs and distributees of the decedent. [Thrash v.
JUNE TERM, 1845. 5^79
S.&E.' Travis v.T&rtt.
SunjWalt, 6 Ala. Rep. 13.J And it is as-much a bar to a judg-
ment to whicH the administrator is not made a party, or which is '
not presented as a claim id him, as any other dpmand. 'Until it
is so presented, or, until he is made.aparty to the judgment, he is
not chargeable with it. In IIolHnger v. Holley, at this tenon, we
considered another similar statute, and held, that even making
the necessary parties, did not dispensq with the necessity to file
the judgment as a' claim irt the clerk's officcj when the estate was
represented insolvent. . ■ '
If ail imperfect judgment exists against the decedent, it cer-
tainly is as much the duty of the creditor, asserting tha.t as a
claim against his estate, to present it within' eighteen months, or*
to take the necessary measures to bring in the admii?istratdi*,as if it,
was a perfect proceeding. The fact that tbe creditor h«s no
control of the evidence of the original debt, cannot fhake a dis-
tinction, because that is not what he is required to present , that
is not his claim-; the one which he is invested with,. arises out of
the procegdings instituted by him. Nor is the fact that a
suit is pending, a sufficient reason to withdraw the claim frpm
the influence of the statute. [See King v. MoseJy, 5 Ah. Rep.
610.] ■' . ' .. •
, 5. It is said, however, that this defence is riot insisted ofi in
the proper modei,.as it is attempted to be raised by tlie anfswerof
the ejjecutors, when il should have "bepn by plea to the sc/, fa.
and it is urged, the answer is no part .of the rfecord, which can be
looked to for the purpose of reversdl.
The English practice is, to declare in sci, fa. upon: the appear-
ance of the party, aAd to this declaration the defendant pleads .
either in abatement or bar, As irj other stiits. [2 Saund. 12 t.]
But with us, the universal practice is, to consider the sci. .fa: as
sufficient, without any declaration upon it. Usually, the contro-
versy is determined upon a motion to quash, or upon a demurrer,
but in some cases, such as sci. fa. against bail, or upon recogni-
zanfces, pleas are usual and customary, , But we 'do not think an
answer ascjistinguished from a plea, is so eiitircly irregular as to
warrant the Court in entirely disregarding it. If the plaintiff here
wished to raise the question whether this mode of defence was
proper, he should hAve^demurred, or othbrwise in some manner
called the attention of the Court and opposite party to thedefec--
tiveness of the pleading., As tjhis was uot done, and as the an-
580 ALABAMA.
Hooks & Wright v. Branch Bank at Mobile.
swer contains a substantial matter of defence, in view of the sta-
tute of non claim, the judgment cannot be sustained ; but must be
reversed and remanded for further proceedings.
HOOES & WRIGHT v. BRANCH BANK AT MOBILE.
1. A surety cannot plead that his principal is dead, and due presentment of
the claim was not made to his representative. Nor will the omission to
present the claim for payment to the representative of the .principal in the
debt, affect the right of the surety to recover from the estate, if he is com-
, ' pelted to pay the debt '
Error to the Circuit Court. of Mobire. - •
Motion by the Bank against the plamtifTs in error.
.Plea, that the defendants were sureties of ^ one C. Hooks, who
has departed this life ; that administration has been granted on
his estate, but- that the administrator was not notified of the ex-
istence of the debt, by which the e'statejias been discharged from
its payment. • " > . "■ " • •
To this plea the Bank demurred, anci tha Court sustained the
demurrer, and rendered judgment for the Bank, from whjch this
writ is prosecuted. . , .
J. Gayle, for plaintiff in error. . - '
Fox,icontra. ' , * ; •• •. '*'* ''• '-/
, . ■ . ■ ' ■ _ J. ■ ■ ■
ORMOND, J. — The exemption from suit, if due presentment
of the debt is not made to the- representative of an estate, is a
privilege appertainining to ihe estate of the deceased, and those
interested in it, and cannot be claimed by any other person liable
on the same debt. Nor is the right of one so circumstanced,
who may be compelled to pay the debt, to proceed against the
estate, at all affected,, by the omission of the creditor to present
JUNE TERM, 1845. 581
Spence ^. Barclay.
the claim to the representative- of the estate. His right to reco-
ver from his principal, arises from the payment of the debt, and
is not impaired by the omission of the creditor to make due pre-
sentment. This point was expressly ruled in the case of Caw-
thorne^v. Wei^inger, 6 Ala. 716, and previously iii McBroora v.
The Governor, 6 Porter, 32. Let the judgment be affirmed. '
SPENCE V. BARCLAY.
Iv The doctrine of contribution does not apply as between accommodation
indorsers ; consequently, in the absence 6f ah express or implied agree-
ment changing the liability of indorsers inter se, they are bound to pay in
the order in which their names appear on the paper.
2. In an action of ?issumpsit, at the suit of a subsequent against a pcjor indor-
ser, to authorise the admission of the hote as evidence, it is sufficient to
prove tlie sigiiature of the maker and the defendant ; ai)d the recital in a
joint judgment rendered upon the note at the suit of a Bank against the de-
• fendant, tlie plaintiff and mak^r, are evidence in such an action to charge
the defendant.
3. In- an action by q, prior against a subsequent indorser, who has been com-
pelled to pay the note, a declaration which alledges the making of the note,
its indorsement, protest for non-payment, and notice to the defendant, and
thepce deduces his liability, if sustained by proof, entitles the plaintiff to
recover ; .especially if a coimt is added for money paid, laid out and ex-
pended. ' . ' .
Writ of Eirror to the Circuit Court of Talladega.
Tpis .was an action of assumpsit, at the suit of the defendant
in error against the plaintiff, to recover money wliich had been
paid by the former, but for which the latter was primarily liable.
From a bill of exceptions, sealed at the trial, it appears that the
plaintiff below produced a promissory note made by Simeon
Douglass, on .the 18th Dec. 1839, for the payment of three hun-
dred and twenty-two dollars and fifty cents, one hundred and
582 ALABAMA.:
Spence v."BaEclay.,
twenty days after date, to the order of the defendant, '< for value
received, negotiable and payable at the Branch of the Bank of the- .
State of Alabama^ at Decatur." -This note was indorsed th,us :
« Solomon Spence, H. G. Barclay," and the hand-writing of the.
maker and defendant was both proved. The defendant objected .'
to its admission as evidence, but his objection was overruled. • ,
The plaintifFthen offered to read a duly' certified ^transcript of
a judgment r£Covered upon the note above described by the -•
Branch Bank at Decatur against both the plaintiff and. defendant,
in the CoGnly Court of Morgan* The judgment entry in that
case recites, that the note was indorsed by the defendant to the
plaintiff, and by the latter to the Branch Bank; that it was at ma-
turity presented at the Bank for payment, which was refused ;
and that it " was then and there protested for non-payment, of
which the said indoj'sers then, and there had notice,"
It was further proved by the plaintiff, that in the winter or
spring of 1843, ah execution issued on the judgjnent in fav.or of
the Bank came to the hands of the coroner of Talladega, that the
plaintiff and defendant disputed with each other as to their re-
spective liabilities to pay the same. The plaintiff insisted that -
the defendant should satisfy it in toto, and the defendant contend-
ed that they were equally liable, and should each pay one-half.
In the summer of 1843', another execution came into the coro-
ner's hands, and the plaintiff and defendant each paid one*.half of
it, under an agreement that they should leave it to some Court to
decide the question of their liability respectively. The witness
inclines to think that it was to the Circuit. Court -of Talladega,
then' in session. , , " ' . - .
This was all the evidence in the cause, and the Court chained •
the jury, that the plaintiff could not recover unless the* evidence
sho-wed that the note had been duly protested, and notice thereof
given in due season to the defendant. The Court, hp^weVer, re-
marked, that the judgment entry was prima facie evidence that •
the protest had been made, and notice regularly . given. ; . .
The defendant then prayed the Court to charge the jury, that
if they believed the evidence that bad. been adduced, they should
find for the defendant ; this charge was xefused*'. The; several-
questions raised upon the^bill.of es;.ceptions are duly reserved for
revision. ,.,'•' . , ■
JUNE TERM, 1845. ' 683
Spence v. Barclay .<
T. D. Clarke, for the plartitiff in error. — »The recitals iti the
judgment in favor of the Bank, either alone, or assisted by the pa-
rol evidence, do not support the allegations of the declaration,
but are actually variant. The judgment in that case did not es-
tablish a protest and notice,. amd the charges prayed should have
been given. . ^ . '■
, "= ' •''■.' . • • ' '.'
W. P. Chilton,. fdr the defendant, insisted, that the defendant
was primarily liable to satisfy the execution of -the Bank, as he
Was' the first indorser of the note, and the evidence was sufficient
to warrant the finding of the jury, upon the issue submitted to
them. , . ■ . , - *
COLLIER, C. J.— In Brahan & Atwood v. Ragland» ^t al.
3 Stbw. Rep, 247, and several subsequent decisions, it is held
that the doctrine of contribution docs not apply as between ac-
commodation indorsers, unless there was an express or implied
agVeement to bear parts of the loss as joint sureties, in the event
of the inability of the maker, or drawer to pay. The record in
the present c^ise does not show whether the parties were indorsers
for value, but if necessary to indulge presumptions, such would
be the natural inference. This, howeverj is immaterial, for in the
absence of an"expres§ oi; implied a|^reement changing the liabili-
ty of indorsers inter se, tliey will be bound to pay in the order in
which their names appear on the paper ; and thjs, as we have
seen, although they' may have indorsed for the accolnmddatidn
of the' majvcr, or some other person.
The proof of the genuineness of the signatures t)f Douglass and
the defendant was certainly quite sufficient to authorize the Court
to. allow the note indorsed by the- parties, to go in evidence to
the jury. ' ,
The record of the- judgment and proceedings at the suit of the
Bank was competent evidence, and the recitak in the judgment
entry,-so far/as they tended to make out the plaintiff 's case, were
quite as satisfactory, as if the same facts were testified by- wit-
nesses examined, in Court. It was not allowable. for tlie defend-
ant, after having acquiesced in the judgment and paid a part of it,
and insisted upon the plaintiff's paying the residue, in satisfaction
of a joint.execution against them, to t)bject that tiie judgment was
5S4 ALABAMA.
Allumsi et al. v. Hawley.
obtained upon insufficient evidence,and thus put in litigation the
facts concluded by it.
In addition to the effect of the judgment, the conversations be-
tween the parties in respect to the execution while it was in the
coroner's hands, and the agreement under which it was satisfied,
would, even in an ordinary case, be admrssible to show, that the
defendant had been duly charged by notice ,of the maker's de-
fault ' •
The declaration states the making of the note, its indorsement,
pirotest for non-payment and notice, and thence! deduces the de-
fendant's liability as indorser. A count is also added for money
paid, laid out and expended. We are satisfi!ed, that, upon the
proof, the instruction to the jury was correct, and 'that there is
no error in refusing to give, the charge prayed. The judgment
is consequently affirmed. . - ^ /• ■
ALLyMS,ET4L..y. HAWLEY. . . ,.
. , • , . .' ' ' • ',♦,■<• - ,■,•'
1. In a summary pl*ocee^ng ffg'ainst a sheriff und his. sureties, where flie
judgment is by default, it must appeai" affirmatively on the record, that the
sheriff has hadtliree days notice of the motion, or the Court must refer to'
the notice as proof of notice to the sheriff; and a notice found in'the tr^-
script will not be looked to for the purpose of supplying the defett, al-
though a jury has asdertaihed that -all the fa!cts therein stated are true.
Writ of Error to the County Court of .Dale.
• Mo"^ioN by Hawley against Allums, as sheriff of Dale county,
and certain pei'sons as his securities in office, for failing to return
a writ ofji.fa. issued from' the County Court of Dale county, in
favor of Hawley, agaifist certahi persons named in the motion.
The notice of the motion is. found in the transcript sent to this
Court, directed to Allums, as sheriff, and the other persons as his
sureties, and upon it appears indorsed: « Rec'd in office 28th Ju-
JUNE I'ERM:, 1845. . 686
Alltoais-et d. v. Hawley/
ly, 1-844. Berti's Byrd, coronqr. Executed 2d August, 1844.
Bertis Byrd/coroner." '.
At thfe term of the Court named jn .the diptice, a judgment was
given against Allums, and others,thc entry.of which recites, tfiat
the plaintiff came by attorney, ;^nd the defendant came not, but
made default. Whereupon came a jury, &c. who .upon their
oaths say, that they find all the averm.ents in .the plaintiff's notice
true, and further assess, &c. • It then proceeds, " tha't it appear^
ing to the satisfaction of the Court, that A. Metcalf," and ether
named persons, " are and Were the sureties of said Allutns, in his
official bond as sh^riffTitis considered," &c. rendering judgmoj^t
for the proper sums, according to the averments of the notipe.
^llums and his sureties now prosecute their .writ- of error, gnd
assign as error — - , . . • '
1, Thkt no notice ofthe motion. appears from th(^. record to
have been served on the defeadants. , "
2. The notice found in the Tecord is n^t a public record, or a
writ issued by a competent officer, nor addressed to one; therefore
its serjrice is not proved by the mere retum of « fexecuted/ by an
officer.
3/ If the notice is considered as part of the jecord, then it is
insufficient, as 'the sheriff is called to answer a failure to return
the execution three days before-the rcturn day thereof, when the
return day itself is thi-ee days before the Court.
4. The record does riot disclose with siffficient certainty, that
the facts necessary to fix the liability of thq defendants- belov<f
were proveji.
^. It does not appear from- the entry of judgment, that the sure-
ties of the sheriff were such when the execution cam6 to his
hands. • •
6. The notice does not disclose whether the. sheriff is sought
to be charged under thje act of 1807 or 1819. ^
J. E.Belser, for the plaintiff in eVPor. , .
-P. T.Sayrb, for the defendants. • , .'- . • ; "• ,
GOLDTHWAITE, J.— The general rule as to summary
judgments is, that every fact necessary to sustain the particular
jurisdiction exercised, shall appear by affirmative; recitals upon
the record. ; [Lyon v. The State Bank, 1 Stewart, 442^ €urry
74
•968. ■ ALABAMA.
Gayle v. The Cahawba'and Marion RaU Road Company.
V. j|3ank of Mobile, 8 Porter, 360.] An ejtcepfion has been es-
tablished whenever the judgment entry refers to the notice, or
other necessary prelinjinary proceedings, found in the record ; in
which event the riotece, or other proceeding, will be considered
as having beert acted on by the Court,' and made a part of its judg-
ment. ■ [Bondurant v. Wopds, 1 Ala. Rep. N.-S. 543 ; White V.
Dank at Decatur, I-b. 436.1 , ■ Inthepi'fesentcase there is no aver-
ment or recPtal in the judgment €ntry, that the three days- notice,
which the statute requh'es as a "condition upon which the jurisdic-
tion is to be'exercised,'jin the absence of ^^n appearance by the
party, was given ; nor is this fact /ound by the jury. They-
merely ascertain that the facts stated 'in the notice are true. • In
Brown v. Wheel-er, 3 Ala. Rep. 287, the entry went so far as to
recite the appearance of the parties by their attorpies, but'w^ held
this insufficient, incases of this nature, to warrant the inference
that the parties were regularly -before the Court, eithep as having
had, or as waiving the requisite notice. In the subsequent case
of Jordon v.. Br. Bank at'Huntsville, the entry referred to the no-
tice upon' the recovxi„as having been produced as-prpof of that
fact, and the judgment' was sustained by- looking to its coi^tents.
In the case before us, if the Court, 'or the'jury, had affirmed- the
fact of notice, and referred tb the paper foun^ in the record^
we shouldnot hesitate.to Took to it to susl^iil/the judgment ; but it
is clear this matter escaped the attention sbbth of the Court and
jin-y, and consequently the jm-isdiction fails.. '
• Thejudgmerrt. must be reversed tod the cause remanded. *'
* .1 , ■, .'-
■-A-
1 '■• , ■■ > • . •
TiS:- ■>*■'■' ■r ...■ . "f.
GAYLE V. THE CAHAWBA AND MARION RAIL ROAD
' '•■ . :■ COMPANY. " • •
■ ■:. / :..•■-/■.•. ''■ " ■■■■ ■ ■^■' -' .•■■•■•■■\v,v
1. When a demurrer is overruled to onq count of a declaration, which is af-
terwards abandoned at the trial, this Court will not examine into the suffi-
ciency of such count. . ^ . . ' ' • .
JUNE^TERM, 1845. 68»
Gayle v.The'Cah9,vvba and Mdrion Rail Road Company.
2. A recovery may be, had uRpn the common counts, for an instalment djie .
upon a call of an incoVporated company. > • ■ -
3. When objection is made to testimony In the ma^s, in the Court JJbIov,'
it is jn the nature of a demurrer to the evidence, and will prevent particu-
lar portions of jt, from being Submitted to a severe and searching criticism.
The objection to such portions of the testimoi.y,- should b6 specifically
', made in the Court below. In such cases'this 'Court will consider the tes-'
tiijiony-by the same rules wihich govern demurters to 'evidelice. '
Erro/" to the Circuit Cburt of D<Ulas. * •.>'.•;
-. ; •■ ^ ^ ' ■ ,>■• >
Assumpsit fey the defendant against tfTe-.-plaintiff in error, tO*
recover fifty <lollars, being the ninth instalment due on his sub-'
scription for-stock. ' , • v ••
The declaration cohsisfed of three special, -and the common
counts. The defendant demurfod Separately to the thpee special
counts,- wKibh' was 'overt'd^d by the Court, except as to ther third;
anU. leave given' to the defendant to plead ©ver, after which the
plaintiff entered a nolle prosequi to the first count, .ajid relied alone
upotj the second count, and the common counts.
Upon the trial; as .appears from a bill of exceptions, the plain-
tiff proceeded to prove from the books of the'companyvits Organ-
ization under its charter. The Court permitted the plaintiff to
prove, from the books, the following facts— th^t the b^oks trf sub-
scription contained .^he name of the defendant, and many other
persons signed to an instrument to the following effect: « A book
of subscription to the capital stock of t'he'Cahawba-and Miiripn
Rail Road Company, opened' on the 20tK March, 1,637,^ by an
ord^r of the boards 9f directors, assembled in the town of Cahaw-
ba, onlhc ITlbi March', 1837, under the direction of' James E.
Craig," (Sfc. &c. The name's are signed thus :
NUMBER OF SHARES.
10 . . : Total stock, 81,000
DATE. , (. NAMES.
March 29. " MatC'Gayle.
The plaintiff.having averfed as its. cause of action, and the
sole object of the suit, tp recover an assessment of five per cent.
made bythe directors, being the ninth instalment, and haviftg.of-
fered a resolution to that effect, it.-^as obje'cteci to by the defendr
ant as testimony,, under the second count, on account of a dis-
crepancy in the dates, but the Court overruled the objection, and
permitted^tbe testimony to -go to the jury. But -flfterw grds the
588 . ALABAMA.
Gayle v. The Cahawha anfl M^ori Rail Road Company.
Court, With the consent of the plaintiff, excluded all the written
evidence which had been oQered, including' the entries from the
books of the company, from the consideration of thp jury, so far
as related to the second count. •'
. It Was further in evidence,, that the account, or demand sued
for, as aforesaid, ha,d been presented to the defendant,, who re-
fused to pay-^also,''that the account against the defendant for
all the other assessments made by the board, some of earlier,
and some of later date to said ninth instalment, had 'been pre-
i^ented to said defendant, but which in like "manner he refused to
pay. There- was evidence conducing to show, that the other in-
stalments had been transferred to creditofs of th^ company.
Upon this testimony, the defendant moved'the Court to instruct
the jury, that on fhe ajjove evidence rtie plaintiff was not entitled
to. recover on the common counts, which instructions the Court
refused, holding that such recovery might be had on the common
counts. To ail which the defendant excepted, and which he
now assigns as erro?!. ■ ■ ^ ' ,
R. Sapfold, for the plaintiff in error, contended that the charge
of the Court was wrong, as there was no proof in-the record, that
the defendant signed the book of subscription, or that he had no- ,
tice of the assessment, •■,'.. . •
• Edwards, contra. . ' • ►• *
ORMOND, J. — We do not consider it necessary to examine
the sufficiency of the second count in the declaration, to which the
Court overruled the demurrer of the defendant, as it is- perfectly
clear, that the plaintiff might at the trial, abandon all right to re-
cover under it. This it appears he explicitly did, and relied
alone for a recovery upon the common counts in the declaration.
It appears to us that the reasonable co'nstruction of the bill of
exception is, a request to the Court to charge, that no recovery
.could be had in this action, upon the common counts. The pray-
er of the defendant i^, "thaton the above evidence, the plaintiff is
^ not entitled to recover on the pommon counts ;" to which the
Court responded, that " such a recovery might be had on the com-,
mon counts." It is the duty of parties who wish to review the .
decision of an inferior Court, in this Court, to show affirmatively
JUNE TERM, 1845. 589
Gayle v. The Cahawba and Marion Hail Road Company.
that there is error upon the record. If it be left in doubt, wheth-
er there is error or not, it is the duty of an appellate Court to
presume in favor of the primary tribunal. ^'
It is not now insisted that a recovery could not have been had
in this action; upon thd common counts ; But it is argued that the
evidence w'as insufficient for that purpgse ; but considered in'thdt
aspect, we thinkthe objection alike untenable. ^ .
• It is objected that it dops ndl appear? that there was proof of
the signature of Matt. Gkiylcj. thq defendant, to the subscription
far the stock ; but that from the record it appearsythat the book
in which the subsdription wSs made, was ' produced, which, al-
though sufficient for a recovery under the special count, declaring
upoii it, was not under the common counts, without proof of the
signature — ^and further, that evidence that the " account" sued
for wiis presented to the defendant, does not show that he had
noticeof the call of the directory for this instalment. - . ^
* When evidence is objected to in the mass, as in this case, the
objection will not be permitted to be taken in this Court, so, as to
subject particular portions of it to a severe and searching criti-
cism. If the sufficiency of particular^parts of it to maintain the is-
sue is denied,the objection should be specifically made in theCourt
below, when perhaps 'the objection, if valid, might be removed,
or some explanatory testimony offered, removing the difficulty.
The objection, when made In .this general form j to all thfe testi-
mony, is calculated to -mislead-, and ought as-far as possible to be
discouraged, unless it be in fact a demurrer to the evidence, by
analogy to which alone indeed can this motion be sustained. Con-
sidered as a dcmurrei'to the evidence, we think the jury might have
inferred; that the defendant signed the subscription, and was no-
tified of the call made by the directors. From this it appears,
there is no error in the tecord, and the judgment must be af-
firmed. . •
590 ALABAMA.
Ball V. The Bank of tha State of Alabama.
BALL V. THE BANK OF THE STATE OF ALABAMA.
1: 'Where the Cashier of a Bank in Alabama, .which was tlie holder of a bill
payable in New-Orleans, testified that the bill at tlie time of maturity, was
at the place of payment ; that ii^ due course ^of'mail thereafter, he received
a package containing a large number, of protests*; that he had no distinct
* recollection of the onein question,, but does not doubt It was regularfy re-
ceived, and that notices, were enclosed, «nv.elopedi addressed and mailed
to the drawer and indorsers on the . same day,- as such was Tiis constant
practice.; if he had received the protest under circumstances indicating
that it had not been transmitted from New Orleans in due season, it ^^ould .
have been noted according to the invariable niode of doing business.:in
Bank : Held,'\hat the refusal to instruct the jury that the evidende of the
'. cashier was insufficient to chargethe indorser with notice of the dishonor .
of the bill, was not an error ; and ths^t the evidence was suCh as might well
have been left to the jury to determine its effectj
2. If a Bank, which is advancing upon cotton, to be shipped through its agents '
to distant points, in ojder to place itself in funds there, stipulates with- a_
shipper to pay him two per . cent, for^xchange upon the nett amount
of sales at a designated place, the fluctuation in the price of exchange be- ■
tweeri the time Avhen tl^ contract'was entpredinto aiid the cotton sold, can
have ho effect upon the rights and liability of either party.
3. Where a party offers a witness who will be liable over; if he is unsuccess-
■ ful,'he. cannot divest the witnesses interest, and make him competent, by
depositing with the clerk a sum of money equal to what would be the
amount of the recovery against him. The common law or statute, neither
confer upon th^ clerk of a Court, virftrfe o^m,,th^ authority to receive mo-
- ney which may be recovered upon a suit afterwards .to be ;brdught; and
such payment caimot be pleaded in bar of an action.
4. All attorney at law cannot, in virtue of his retention (by a release, or the de-
posit of money which will operate as a release, if at all,) remit a liability
which his client may enforce, for the purpose of removing tlie interest of a
witness, so as to make him competent to testify.
5. Where a Bank, which was making advances upon cotton, stipulated with
a shipper of that article that he Should ^hip only to the agents of the Bank,
who were to sell, &-c., the stipulation ma^e the agents of the, Bank, pro re
naia, agents of the shipper, and an account of sales dilly furnished by such
agents to their principtj, is evidence against the shipper.
Writ of Error to the County Court of Tuskaloosa. . <.>
r
JUNfc TERM, 1845. . 591
Ball V; The Bank of theStatfe of Alabama.
This was a proceeding by notice and jQiotioh, "under the statute,
at the suit-of the defendant in error, against th6', plaintiff, aS the
indorser of a lj|ill of exchange* The cp use was tried on issues
joined, on -the pleas of non assumpsit, payment, and set offj a
verdict was returned for the plaintiff,, for five hundred and severi-
ty dollars and. twerityrfive cents, daniages, and judgment was
rendered accordingly. On the^ trial, the def(;ndant excepted -to
the ruling of the Court. It appears from the bill of exceptions
that the plaintiff offered and read to- the jury the bill of exchange
des'Cribed.in the noticfe, together with the- protest thereof for non-
payrtient, duly made' in thb city of N'pw-Orleans, where it was
payable. To show that the defendant below had due notice of
the'dishouor 'of the bill, the plaintiff. introduced as a yvitness the
assistant cashier of the ^Bank, who testified thaf in March, 1840,
atthfi m'aturity of the bill, and for some time befQre and after, he
was actirig in that chal-actej. In that month, a large package of
notices of protest, viz, a hundred- or more, were received and
handed to him by the Cashiea'. It was the duty of the witness to
giv6 the rtolices the .prqper.'addresSj'-'or deposit them in the. post-
office, which duty he performed oYi the same day they were hand-
ed t,6 him ; he had no recollection ot the notice of protest in. this
case, but from the'course of bu^ness in the Bank, he had no doubt
that the notice .Was. received, ahd -properly directed and "deposi-
ted in the post-office. The defendant fhen resided in -Mobile.
Notices of protest of billsi were received ijy the cashier through
the mail, and handed immediately to the witness, who directed
them to the proper persons, and deposited in the post-offi'ce on
the day he received thesps^ . ■
^he plaintiff then introduced its cashier as a witness, who
stated that he held his present office when the bill matured, and
holds it upitothis time, and that the course of business in Bank
,was such as hisassistant had testified ; that as stated by him, and
at the time, a large package of notices of protest were received,
post marked « New Orleans." Witness could not remember
whether the envelope had any thing written inside, or not, he Was
not in the habi-t of ■ preserving such envelopes, supposed it was
lost, but had made-no search. Witriess had no recollection oft he
notice of protest in this ease ; that he- immediately handed the
notices received to his' assistant, whose "Suty it was to direct and
forward them through the mail. From the course of business in
592 •■ ' ALABAMA.
Ball V. The-pankof the State of Alabama.
Bank he had no" dOubt the notice, in this case was received ; let-
ters from New-Orleans were received in due, course of mail in
six or eight days from the tihne they were mailed. Witness had
no recollection when the letter containing the notices spoken of
was^nailed — could not- say that it was put into the.post office be-
fore the leaving of the first mail after protest, or at what lime.
The defendant then offered in evidence an •agreement between
the plaintiff and the drawer of thq bill in question, aS follows :
- "Article 1. The receipt of a "responsible wareTiouse keeper
shall accompany the bill. Art. 2. AH cotton will be shipped on-
ly to the agents ofthis Baftk., Art. 3. Tbe -cotton -shall in all
cases be shipped- on account and, xisk -pf the owner. The Pank
will claim the right of insuring against the dangers of the river
and fire. Art. 4. The cotton must be sold within thirty days- af-
ter its arrival in the port of destination, and by or befol'e the.ma-
turity of the bill. All expenses paid by the oWner of the cotton.
•Art., 5. Interest will be refunded from the date of sale of any cot-
ton to the maturity of the bill. Art. 6. If any lot of cotton netts
more than the indebtedness of , the party shipping, the Bank will
refund the surplus, on application, as soon as an account of sales
are received. - Art. 7.' Two per cent, exchange will be ajllowed
to shippers of cotton on the nett amount of sales, if sold in New-
Orleans or New- York. Art; 8. Interest vvill be charged on
freights advanced prior to thie sale of the cotton. Art. 9. The
board will advance on cotton to be sol 4 in-Mobile, when the par-
ty taking such an advance will apply the total 'amount of such ad-
vance to the payment of debts previously due the institution.
The board of directors have purchased of P. P. Brown a bill
of exchange for sixteen hundred and forty seven dollars, payable^
at the Bank of Louisiana, New-Orleans, oti the lst-4th Marchj
and holds as collateral security a cotton receipt for forty-eight
bales of cotton, to be shipped to New-Orleans, agreeable to the
above regulations." '
This writing was ^bscribed by the respective paYties to il;,
and appears to have been made at Tuskaloosa, on the 7th' Janu-
ary, 1840. ;
The defendant proved- by the individual who was cashier at the
time, the agreement set out above was entered into, and that the
bill in question was that to which the agreement refers ; that the
amount advanced on it was only two-thirds, the estimated value
JUNE TERM, 1845. 593
i» i ^ — ^ ^_; ^ : ^
Ball v.vThe B^nk of the State of Alabama;
of the cotton; this was done that the -biH mfght be fully paid
with, the proceeds of the cotton. In such case, it Was the uftder-p
standing between the Bank and^the- shipper, that if the cotton was
not«bld befojre the nfiaturity. of the bill^ ilo damages should be
charged on its potest. "Exchange on cotton during the season,
when the tj;ansaction in question took place, ranged frono twelve
to^ seVenteenvand" a, quarter per centi ; the- average "Was about
fourteen. Messrs. Mart', Brown & Co. were the agents -of the
Bank, to -whonj, cotton shipped, to "Ne^v-Orieaqs for ei^le, was
G^DsigiJied* ■ • ; ; , * ' ■ .■ ■.•-'.,
Brcf^n, Qf the hause of Brawn, Marr & Co.,' wa^ then offered
as a witness, io prove that the cotton to which the agreement re-
feVred, was shif)ped to thj^t fir^n, at New-€Weabs, • was received
and s<?ki on' account of the Bank^andihe proceeds paidoVer.
Plaintiff objected to this'witness, because heVas the drawer of
the bill, Tbe objection was sustainotjij and the witness rejected ;
thereupon, the plaintiff-e^Qcpted.' Tke defendant." not being pre*
sent in CouVt, his counsel offered to pay, into Court, a sUm suffi-
cient to cover the costs, so' as. to discharge 'any dlaini- which de-
fendant might have agfiin^t the \f itness, if a judgment was reco-
vered in this cau?e, and a^ain offered the-witness, but ^e was
excluded, and the defendant again excepfeS. • > •• .
Plaintiff then'offered an acci^tot'of sales of foi^tyreight bales of
cotton, sold for accouniand mk of Mj'. P; 1*. Brown, the proceeds
of which were subjcgt to the order of the State Bank of Alabama. '
This account is dated thcSOth May, 1840; and .is. signed by'
JWCessrs. Kirkman, Abernathy & Hanna, who appear to have
acted as factors in tho sale of the cotton. The hand-writing of
Messrs. IC. A. &, H. was proved, and it was also shown that
they wore, agents foi' the Bank. To the reading of the account
the defendant objected, because it was the ^ct of the plaintiff's
agent, but the objection was overruled, the paper read, arid the
defendant, "excepted. The plaintiff then proved that the paper
was received as^.the apcount of sales of the cotton to which the
agreement related. ■ ■, ■'
The dcte«idant prayed the Courts to charge the jury,- that the-
testimony of the cashier and his assistant was no evidence that
the notice of the protest of the bill was deposited in the post of-
fice in New-Orleans in time to be forwai-ded by the first practi-
cable mail dfter its dishonor. Further, if they believed from the
75 *»
§94 ' .• ALABAMA.
tallv. The.Bank of the State of Alabama.
evidence that the exchange between Tust^lckosa and New-Or-
leans, at the tin^? the ccfttpn Was sold, was noore than two; per
cent., the defendant was ^title'd to the benefit, of, it ,. These
charges were both refjused. by the Court. '•• ; .
•The presiding Judge, before sealing the bill of exceptions, add-
ed in substance, the following, viz: The cashier, ip answeF to de-
fendant's counsel, if he knew whether the protest wa^ put into the
post-officeat New-Orleans, 'previous to the- departure of the 'first
mail, said, that he Cotild not state positively.. B.ut whenever the
notices of protest did not come in proper, time, in doe course of
mail to fix tlje liability of-the parties, the Bank looked to their
agent for the losses sustained thereby; from tl-te fact that .there
were few cases of lossj and this notone.ofthem, he had no doubt
fi:^m the cpurse of business in the Bank that the notice in this case
was received in due time after protest. In respect ta the first
charge prayed, the Courtdid instruct the jury that as the witness-
es were in Tuskaloosa, they did not, nor could not swear t|iat the
notice was put into the post'office in New-Orleans the, first, mail
after protest. But it would be well to ask themselves how it
could get tq Tuskaloosa in time tp fix- the liability of the parties
to the bill unless it had been duly ntiatled in New-Orleans, if they
believed the cashier so tsstified. That the time vv hen the notice
was deposited in the .post-office- .might be- shown by positive
pi-oof, or by facts and circumstances } buf the evidence must sa-
tisfy their minds that-the notice was put into the post-office at
New-Orleans for the. first mail after the protest. Another wit-
ness testified that the bill was •only to b.e protested to fix the Ha*
bility of the parties, that by agreement no damages wer.e to be
charged. . • . ..• .. , » :^ . * '
, E.,W. Peck and L. Clark, for the plaintiff .in error, made the
following points : - . '. ^* .
1. A release by the defendant, of P. P. Brown from the pay-
ment of costs, would have .been sufficient, and the deposit of .a
sum of money equal to the costs, .and to pay it if plaintiff" was
successful, would have the same effect, even in the case of anac-
commodation indorser. ■.'•.,•.•• .•'.,.-».,■';• /••u'.i-'*;*'
2. The record does not show that the defendant vvas not
an indorser for value;, and if lie was not, it required, no
^ fJUJ^JE TERM, 1845. 61&&
*, ■ ■ • ._
Ball V. The Baiik of tiie Stsute of Alabama.
release in order to make the dra,wer6f the JDill a competent
witness. [4 Ala. Rep. 637-; 5 Ala. Rep, JOG.] .^
3. The shi-pper of the cotton was entitled to the exchange,''
even if. it wore more than two per cent., because \i was receiv.^
ed\fciiot in p&y<nteBt, but as colJatdral security for the bill. • •-
■■^ The -testimony as to the sufficiency of the notice, raised a '
question of law, ancj nothing being proved from which the jury
could- reaSonaWy infer that notice was given, the Court should
have instructed th« jury, that tlfoiigh they believed all that the
witnesses stated, y^t the evidence was insufficient to have charg-
ed tljte-defendanf. [Chitty ba Bills, ■•509-515^ 9- Peters' Rep.
33; 4Wagh. JRep. 404-J 8 fick. Rep; 51 ; 9 Id. 567.^
5. The plaintiffs below colild not have. offered the account of
sales as evidence in their <fevoy, because the factor? wha s6ld the
cotton w;a8 thisir agejits» £2 Stew. & P. Repv538.; 4 Wash.
Rei?.-465,] • . ^ ^ :. ' ■ .•■ < ' • ; ' ' ' ;
;B» F. Porter, for the def^ndatit in error, insisted, * •-• •
I< That Browft-was not a competent witness,. for if the defend-
ant was oast in the Suit, the record would be Evidence against
binl. He was offered to prove a payment, arid. a verdict upon
that issue would bar a recoveVy, against him. • [2 Phil. Ev. G. &
H's notes, 133; 14 Mass. Rep. 312.]
- 2. Theaccount of sales, was, under the ci«3umstancesj proper*
ly received in evidence." [2 Stew. & Por. Rep. 339.] . -^
"3. The charge <ri the Court is free from objection; it deter-
mines no question of fact, state's the law, and refers it to the jury
to'say what has been proved.
. COLLIER, Q. J. — 1. We think it entirely clear, that the Court
very properly refused to charge the jury, that the testimony of
the Cashier and his assistant was no evidence, that the notice of
the protest 9f the bill was deposited in the post office in N.Orleans,
in tjmp to .66 forwarded by the first mail after its dishonor. True,
these witnesses could not testify that the notice was thus mailed,
because they were, at the time of the protest, some hundreds of
miks distant from New Orleans ; but the facts they state ar6
quite con^^cing, and inconsistent with the idea that notice was
not duly received by the plaintiff, and addressed and mailed in due
season by its assistant cashier to the defendant. The manner of
596 : ALABAMA.
BalLv. The Bajak of tjie State of A,Ial)ftiHa.
<fomg business by the 'Bank, and the absence .of acy memoranda
by the Cashier, showing' ii'itegularity in the Fcceipt of the
notice, raise a presumption sufficiently strong to sustain a
verdict againgt the -defendant. In Carson v. The Bank of
the State of Alabarna,-4.Ak. Rep. 148, it was hejd, that the jury
would be warranted in inferring a notice of the dishonor of a bill
was regularly given. • • ■. ' - . . •
^. The agreenient under which Brown ' shipped . his cotton
through the' Btok to New Orleans, does not entide.Kim to the
difference of e^^change between Alabama, Bank paper and par
funds at the time the bill *matuK6d.., It is expressly provided by
the seventh article ofthe a^i^eencient, that two per cent, feebange
shall be allowed, oathe nett amount of the sale,.if it be made in
New Orleans pr New Yorkv 'Thisftjpulation is. not controlled
by the fluotaationinthe price of exchange, but the drawer of .the
, bill is entitled to the benefit of it, though the paper currency of
Alabama might have. appreciated so as ,to be equivalent to gold
and silver. And on the other hand, thfe Bank is entitled to re-
tain a sufficiency of the proceeds of\the cotton to extinguish the
bill, without allowing more than two per cent, for exchange, though
its paper may have greatly depreciated after the purchase, and
before the maturity ofthe'bill. The rate of exchange between
differ.ent places is subject to -all f he vicissitudes .of commerce, and
any contract for the payment of a fixed, per cent, at a future day,
must at best be hazardous. This being the case, the seventh ar-
ticle of the agreement is not obnoxious to th^ la.ws against usury,
or any rule of policy ; and must therefore be supported. Cenxen-
tio vincit dat legem. ,•■■>>■■..
3. Mr. Greenleaf, in his treatise on evidence, lays it down gen-
erally, that the surety or bail may be made a competent .witness
for his principal, by depositing in Court a sufficierit surh of mor
ney to cover his liability, [p. 477.] And such would seem to
have been the decision in Bailey v. Hole, 3 C. & P. 560; Pearcy
v. Fleming, 5 C. & P.Rep. 503; see also, 1 Mood. &. M. Rep.
289. In. Allen v Hawks, 13 Pick. Rep. 79, it was held, that
where goods attached are returned to the defendant, upon a re-
ceipt given by a third person, stating the value of the goods and
promising to deliver them to the officer in case the plaintiff should
recover, the competency of the receiptor to testify in the suit may
be restored by placing vn his bands a sum of money equal to the
r JUNE TERM, 1845. 8W.
Ballv. The Bdilkvof the ^tate of Alabama, . '
whole amount for whicji fm tah b^ possibility^ be liaUe on his re-
ceipt. To the same effect< are "Hall' v. Baylies, 15 Pick. Rep.
51, and Beckley v. Freeman. Id.; see also, Robei'ts V. Adams, 0
Gcoepl. Rep. 9"; Chaffee v. Thomas, 7 Cow.' Rep. 358 ; Collins
V. McCrummeH, 3 Martin's Rep. N.-Sr. ISlJj'O.
In Meeker's assignees v. Williamson, 8. Martin's R. 365, 370, it
was ad}udge(^, that if a party irflerested/Dnly on account of costs,
deposit, or offer to deposit witb' tile cferk, such sum-a's, shall tie
directed by the CoUl-t, t(> cover th^ costs^Xw case he shall be <?e-
creed to jfay any^h^ intei'est will not be thei'eby removed,
Iri-some'of the cases cited, thfe money was placed in the hands
of the party offered as a 'witijess. This was clearly sufficient to '
neutralize the interest which would dtherwisie have rendered hini
inoonapetentV foj: if the witness should be charged, he would have .
the means of payment^provided, by which he might relieve him-
selfjand if his liability should not43e fiKed, he could ijefond the
money' deposited' with him. So that • it would' be unimportanT;
to nim, whether the one- party or the other.^wafe successful iu' thB
«ause> In the other^cases a sum of money equal to the immedi-
ate, or consequential liability of the .witncsi vfras deposited "with
the proper 'offi-cer ofthe Court, and this -it was held was equiva-
lent iti law to a release. If it is competent for ^ Court to ihaJie its
clerk the keeper andcugtodian ofmoiiey paid under such circum-
stances, and such pay meht. wilt satisfy a judgment to be rendered:
in a suit aftervvar'ds 'to>be brought, then it is difficult to conceive .of
any objection to;thus racking an interested witaesss competent to
testify. We will briefly consider what are the duties and pow-
ers of Ti cterk in ,this resptect.
• The act of 18,1 2-<iecl ares, that every clerk shall enter into bond
conditioned; (among other things,) " for the due and faithful execu-
tion-of his office," [Clay's Dig. 143, § 2 ;] and the bond provided
by thi^ act of 1-819, is conditioned "for the faithful dischjrf^eof
the duties of tlieir offices." [Id. § 3.] 'By the 5th section of the
act.of 1834,. " to provide a more summary mode of collecting mo-
ney from clerks," [Clay's Dig. 147, § 24,} it is enacted,' that in
all cases where money shall be paid to the clerk of any Court,
the party entitled to receive it, shall have- the same remedy for
its recovery, and the same damages for its detention, as are now
provided and allowed by Ia\^, for money paid to clerks on execu-
tion, and it is fafereby expressly made the duty, of all clerks tore-
5«8 *^ Alabama.
^ali V. The Banit of the State- of Alabama.
ceLveand account' foFalF-such soms ofmop'eyaS hiay be paid to
tbem by either party, as well aft6t as before the issuance of the
execution." A summary remedy by nptice and- motion ibr the
failure or refusal to pay o^er money collected or feceivedori ex*
ecu.tiQn, is provided -^y law. [Clay's Dig. 218,-^^3 ; 829, § 94.]
InVespeet to the act pf 1834, it; has been decided, thatmdhey
paid to the clerk of a Court, in satisfaction- of ^ judgment" ^hich
has -been rendered therein; will' be -d good payment, and Will au-
thorise the entry of satisfoction.j9ro7an/d. ^Murray" Vi Charles,
5 Ala. Rep. 678.] So it has been decided- that our statutes rehi-
ting to the powers and duties of ^lerk$j do not authorize a clerk
to receive- money in a cause- pending and undetermined in his
Court. ^ But iadependent of statuto^ enactment, it was said,
" no case fs remembered in which fnone'y can- be ^awfuljy paid
to- the clerk' in vacation< or. in airy dther manner-than as the officer
of the-.Court,in term time, and the j-eceiptof which is ahs'ay^
shown by some record of the' Court,, or some proceeding yet on
paper,. but progressing to a record." A^aiTi^.'* There are several
stages* in t,he proceedings of a Case, in- which the clerkofaCouH
is by law authorized to be the holder of the mpney^ which may
be paid into Court Thus on fflea pleaded, when the cause of
action is admitted to a partiai extent, and dfenied as to the residue.
So in the case of a tender — ^so 'also, when money is paid into
Court in satisfaction of a judgm'erit." In these xases, the money
is,in legal presurfiption, in. Court, and the clerk holds it merely as
a fiduciary. [Currie v. Thomas, 8 Porter's Rep. 293i!].
It is clear, that in virtue of our statutes the clerkoi aCourt has
no authority to receive money in discharge of an action which is
* pending, or probably to be brought in futui'e'r and 't\'e think the"
. common law does not confer the power in the case now before
us. The deposit of a sum equal to the costs to which the. wit-
nes^J^ould be liable to the deferidant in the event of the plain-
tifl'-s success, if made by the defendant himself, might operate as
a release of the costs^and bar' a recovery of them by hirti. But
is it competent for an attorney at law, when retained for the pur-
pose of defending a^suit, to release from liability to his client a
third person whom it is proposed to examine as a witness for him.
• An attorney has power to bind his client by many acts, being
always liable to him for any abuse of his authority. [Alton v.
Gilmanton, 2 New Hamp. Rep. 520; Ms^yer-v. Foalkro4, 4
JUNE T^RM^ 1845. -x 690
Ball v.- The Bank of the State, of Alabdma.
Wash. C. C. Rep. 503.] »Thus he m^y waive the right' of* ^
peal. {Pike y. Emei-6on,-5 New Ham p. Rep. 393; HaskcIL v.
Whitney, 16 Mass. Rep. 396.] So, it has beert held he may sub-
mit a caus^toarbitration--^HoIker, et;ai. v» Parker, 7 Cranch's
Rep. 4*35: Talbot v.Magee.et al.4 Honr. Rep;57.5,J— maiydis^-
cqntinae a suit' — [Gaillarct, et al. y. Smart, 6 Cow.- Repi 386] —
after jqdgrBcnt may receive payment-^[Branch"v.''BeatlJvct al.
iCalL'Rep 127]— but he. cannot assign the judgment without a
special authority— Waiden. v. Qrant, et al. 20 Martin's-Rep. 565}
-r-nor discharge, a debtor by. receiving* a Jpss surn than- wgis due,
or commute a debt 'by receiving something els6 than- money.
[Lewis v; Ga"mage,et-Ql..l Pick. -Rep. 347; Smock v Dftde, 4
Rand. Rep.(6?9 ; see also, 5 S^qw, & P. Repi 34, $54 ; 1 Porter's -
Rep. 212:] •. •• ■ ;,•• -.
"In Murray v. House, 11 John. Rep4. 518, the plaintiff's* atitor-
ney, in order to rtjakoHn interested witness co'fripetent for hrg cK*-
ent, released him, and he was permitted by, the primary Court to
give evidence ; . but the a-ppellate Court' held, that a parol request
toi'an alterney to represent a' party to a saitv does not. authorize
hinrt to relea'se the interest of a witness. • So- in Marshall v. Na-
gel, 1' Bailey's Rep. 308, it was determined that an attorney can-
not, .without special aufhority, release a witness who i^liable over
to his client, and thus ;'cnder him competent to testify.' • .- .
. The cases which- maintain the want of auj^hority in &n attor-
ney to release c^ witness from liability to his client, arc? perhaps
defensible upon the ground that the attorney's appointment is by
parol merely, and a release which is under seal, must be author-
ized by an instrument of equal dignity. But they might be rest-
ed uponchigher grotind, viz: the want of power 'generally. In
retaining counsel for the prosecution or defence of a suit, the right
tOrdo many acts in respect to tne cause, are embraced as ancil-
laryvor incidental to the general authority conferred. It canriftt be
implied from the. power to defend one suit, that the right to dis-
ci^arge other liabilities, 'which the. client,may enforce, are also
vested in the attorney. It cannot vary the principle, whether-
these liabilities be for a large or small sum ; for costs, or for fho-
nies due under an express contract. In neither ca^ does the, na-
ture of the employment .embrace the authority in question as an
incident. : : .
Laying out, of view the .want of bl sealed authority, we have
Mt
'600 » ALARAIVM;'-*
Ball V. The Bank of tiie State of Alabamju
seen that an attorney cfimiot remit a liability which his client
might^nforceyfprt-he purpose of removing the inteneet of a wit-
ness. In such {^a'se the client^s consent hs necessary to the va-
lidity of the act. How then can the attorney discharge the lia-
bility of the witness by th^ Heposit of a sum of money equal there-
to? The payi^entto'ibe clerk will not hara recovery "ty the
' client, though if he pay it over, he may extinguish the judgment
■pro tanto. The intei^est of the witness then, still continues; though
the clerk may be ifitimately 'responsible tO him. He must. pro-
vide the moans of pay mer^, so far as the defendant is concerned,
^and this is quite enough to-sitov^'his incompetency to testify; for
the liability of the' clerk* may prove unproductive, and if it bo'ssuch
as his sureties are jtot bound to make good, the , indemnity of the
witness will of course be less likely to be reaKze4» From this
. view it results' that tht3 Gircuk Court rightly ^excluded Brown as
, a- witness, upon the propositioniS of the defendant's counsel. We
liav£ considered the' tjase upon the hypothesis, that the defend a)»t
was an accommodation' indorser,an<t that thodraweY of the bill
would be liable to refund to him the costs of the suit, if he'vy^s
unsuccessful. [The Com. Bank of Cdumbus v. Whitehea4» 4
Ala. Rep. 637.}^ The facts' recited in the bill of exbeptions very
clearly show, that the defendant and Brown occupied- that rela-
tion to each other. '. . • ' ■ : . -
4v The second article of the agreement under which the plain-
tiffs werq permitted to control ' the cotton and receive the pro-
ceeds, provides that it should be "^tipped only to the agents/ of
the Bank." This stipulation tnade the agents ofthp Bank pro j^-e
•• wato agents of the drawer of the bill, for whose benefit the shrp-
*•* ment was made, to the same extent as if they had been designat-
ed by name, although the contract between" tlid shipper and. the
■- Bank authorised the latter to select the factors, and call them to an
account. - ' . .. •
In Black v. Richards, 2 Stevfart &.P: Rep. 338, thedefend^t
set upas adefencethat he had made anagreement with the plaintifiv
by which the latter was to ship the defendant's cotton to the house
of B. B. & R. of N'ew Orleans, and that he had .violated the agree-
ment In consigning it to himself. To show that the cotton had
been shipped according to contract, and to, prove the amount
of sales, the plaintiff offered an account of sales- from the house of
B. B. & R.; but it was pbjected to as « secondary evidence," and
ii^
€*
JUNE TERM, 1845. -601
Sankey's'Ex'rs* V. Sankey*e ^Distributees.
excluded from the jury. This Court held, that if the contract
were such as the defendant insisted, then he made Messrs. B. B.
&, R. his agents, and the account of sales Hiade out by them was
evidence tQ show that the plaintiff had perfornled his undertaking. .
The fact that an individual is the agent of one of the parties, sub-
ject to his direction and control, docs not ndces^rily prevent Tiim
from being considered as the agent of the other. Thus in an ac-
tion by a Bank against a depositor vtho fias overdrawn, the books
of the B6nk- were^-eccfived to show receipts and. payments of mo-
ney— the officers being so far the, agents of bot^h parties. [Union
Bank v. Knapp, 3 Pick. Rep. 96.] It is too well settled ^to be
qnestioned, tha>t the declarations of an agent, while, acting and
speaking for the principal, and Within the sco"pe of his' authority,
are admissible in evidence against the principa^l, notwithstanding'
hiefisa competent witness. [Boring v. "Clarke, 10 Pick. Rep.'
220 ; 2 Phil. Ev. 180 to 185, 189, 190, 684, C & H.'§ notes.] The
evidence adduced shows, that Messrs. Kirkman, Aber«athy &
Hanna were the agents for the plaintiff for the sale of 'cotton in
New Orleans; that the drawejr'o^the bill stipulated with the plain-
tiff, that .the cotton in question shonld be sold by the agents of the
latter, and this was sufficient to have authowzed ,the admission
of the account of sales ag against the drawer. And as, the. de-
fendant, an accommodation indorsee, set up in his defence the
agreement between the Bank and tfie dr^^wer of the bill, it was
competent for the plaintiff to sTiow he liad performed it, by such
evidence as was admiesibie against the drawer.
This view disposes -of all the questions raised upon the record,
and the rc6ultis,^^hat the judgment must be affirmed.
^
SANKEY'S EX^RS v. SANKEYS DISTRIBUTETES.
1. Tlie proceedings in a testamentary cause being reversed back to an ac-
count of distributable assets, irf a contest between distributees and cxecu-
tprs, it was relhajided, that a guardian slioiild'be^appointed to an infant dis-
76
662 ALABAMA.
Sankey's Ux'rs v. Sankey'^ Distributees.
_ , _, ^ 1__^ ^__ Xs^ . . j__ J J.
" trit)utee, with, leave to <the gnardiaii to investigate the accounts; Held,
thatth^ privilege did net extend to th6.execut9r, he being name4 as the
tostamentary guardian, and after th^ retilm of the euit the Court below,
qualifying as such. -
S. As soon as the fact was disclosed that the, infant distributee was represent-
ed •by .the executor, tlie parties were complete, and the CcJurt should have,
proceeded to render judgment' on the former verdict; which, under these
circ\imstaiicds, it was irregular to sdt^side.
3: But the party having p/oceeded and obtained anothel- verdict and judg-
. ment, is responsible for air^ errors they may ^contain untij the irreguiJu:' .
proceedings are set'aside. ... " ' ' '
4. It is erroneous to render a joint judgnjept in favtff-of all the distributees.
■ The proper j^udgment is a several -one for the amount coniing to each, and
if an iiifant i§ represented by Ihe fexecutor, as guardian, he should beper-
.• mitted to retain his ward's portion.
5. After a judgment,- upon • irregular proceedings is reversed, the whole
record may be corrected hy the judgment of the appellate Cdiut.
Writ of Error to the Circuit Coart of Montgomery comity.
This proceeding is on behalf pf the . distributees of Sankey
agaipst his executors, «to compel a distribution of the assets of his
estate.' I'he cause was'here* at«a former term, [see 6 Ala. Rep.
607,] when the decree was reversed • because no guardian ad
litem had been appointed for "one of- thq infant parties interested
in the distribution, and because the decree, in part, was rendered
in favor of such guafdian as should thereaftei:be appointed. The
■ cause was remanded for further J>roc;eedings, Jo be had in con-
formity with the-opinion then pronounced, which held the proceed-
ings regular down to the ascertainment of the ^fnpunt in th6 hetnc^
of the executors, and only the decree was reversed, unless the
guardian of the minor, afterwards to be appointed, should 'desire
a re-investig&tion of the accounts of the executors. ■
When the cause r9tumed to the Orphans' Court, James B.
Stephens, one of the executors, was qualified as the testamentary
guardian of the minor, und as such guardiati prpposed to' enter
upon a re-investigation jof the accounts of the executors. This
was objected to by the. other distributee, but;1;he Court, overruled
the objection, A jury being demanded, an issue was formed, be-
tween Ann Sankey, by her- guardiaa James B. Stephens, and
John Elsbury, administrator of -Patience Elsbury, against James
B. Stephens and James C. Sankey, executors of John Sankey.
JUNE TERM, 1845. 608
Sankey'B Ex'rs v. Sankey's Distributees.
A verdict was returned in favor of the distributees, and a joi>it
judgment rendered in their favor against Stephens, for the sum
ascertained by the verdict, and against Sankey for the^um ap-
pearing dyie frona his account, which the parties admitted as cor-
rect. • . • • .. ■
■ Upon the trial of the issue,- exceptbns were takea by Stephens
to the admission of certain evidence, and several instructicms giv-
en by the Court ; also, .to the refusal to.give- certain instructions
asked for by Stephens. . ' - •
These matters of exception are hgris assigned ^ error, but are
unnecessary to be recited, as the judgnQcnt- of the Court proceeds
on reasons independent of them. It is also assigned as. error,
that the. judgment is joint in favor of all the distributees, when.it
^ould be several, for the amount due to each one.
Hayne, for the defendaxit in tirror, insisted, that the verdict
ought not. to be'disturbed, it' varying slightly only fi-om the one
formerly giveA, ,^nd-as the re-invostigation of the" aocounts- was
notin-oonformity with the previous judginent ofthjs Court. ,
Elmore, for the plaintiffs in error, in answer kx tnis objection,
insisted -that the Court below had the discretion to open the inves-
tigation of the- account, and was right in doing sa; [Hill. v. Hill's
ex'rs, 6 Ala. Rep. 16.6,] as otherwise manifest injustice would be
done, it being now apparent- that the contest is with respect to
matters fdr which the executor is in no manner chargeable.
GOLBTHWAITE, J.— 1. When this cause was here at a
former tqrm, the judgmcnt^heri existing was reversed for several
rfeasons, but tlie proceedings in the Court below were considered
regular down to the. a'scertainn^ent of the amount of the assets in
the hands of the executors ; the cause was then remanded, that
a proper judgment might be rendered, when a guardian should
be appointed to. the infant distributee, and the privilege was re-
served to the guardian- to reinvestigate the accounts of the execu-
tors, if he should so elect. [6 Ala. Rep. 607.J
It now appears that tlie execulor contesting the settlement was
named as the testamentary guardian of the infant, and he having
qualified as suqh, after the return of the cause to the Court below,
in that capacity, he moved to set aside the accounts already stat-
004 . ALABAMA.
Sankey's ^^rs v Sankey's Distributees.
ed and ascertained, bctwoon himself as cxecutoi% and Eisbury as
the representative of the sole retnaining distributee, which the
Court allowed. •
.2. As soon as the. fact was disclosed, that the infant distributee
was represented by the same person as guardian with whom the
settlement was to be made as executor, all the necessmy parties,
were before the Court to enable it to proceed to a final setllq-
ment of the estate, and the opening of the. account was evidently
not warra'rited by the opinion delivered wli6n the cause was here
before. The privilege reserved to the -guardian of the infant dis-
tributee, was for the benefit of the ward, and oyght not to be used
but for this pUrpose. As the case stGod, the presence of this par-
ty W9S necessary, not only tljat 'the unity of, the cause' should be
preserved, but d ^Settlenient under .the provisions of the statute
may. be compelled, on the petition of any one of those entitled to
distribution. [Digest, 196, § 23, 34 ; lb. 229, § 41, 43 ; see also
Merrel v. Jones, 2 Ala. Rep. 192; Davis v. Davis, '^ lb. 611.]
After the discfosure that the iprfant distributee was represented by
one of the executors, it was clear that i^Elsbury was Jhe only per-
son competent to contest the accounts, and those having been as-
certained by the" verdict between him and Stephens should not-
have been, disturbed. We do not doubt that the Orphans' as
well as any other Court, invested with the authority to ascertain"
facts by means of a jury, may set jjside their, verdict, but it must
be done during the ^ame term of the Court at which it is render-
ed, unless the motion to setjt aside be continued until another
term. > - ' ^
3. It seems then that all the proceedings subsequent to the-re-
versal, are irregular, and Eisbury would be entitled 'to set thenj
aside or have them vacated, on a proper application to this Court,
and possibly likewise upon an application lo the Court be\owf.
No such application having been made, and the ^judgment re-
maining in force against Stephens and the other executor, they
are entitled to consider, the errors which are inherent to it, an^
if they can, to reverse it, Irv this view^, all "of the errors assigned
would be examinable. ^ . ' •■
4. Under the circumstahces of this case there is now noway
in which the accounts between Stephens and Elsbuiy can be pro-
perly re-examined in the Orphans' -Court, it will therefore be im-
material to examipethe points rhade upon the sfecopd trial, if there
JUNE TERM, 1845. 605
Hollinger ^nd \yife V. The Branch Bank at Mobile.
is any error ill the judgment sufficient to'i'everse it, because Eis-
bury is entitled to be placed in the same condition as he was, when
the Court irregularly^ set aside the verdict in his favor.
The judgment, is joint in favoV of Elsbdry, as the administrator
of bis wife, and 'in favor of the infant ward for the whole of the
distributable assets, when it should have been in his favor for one-
Kalf oiily of thatsum. The executor Stephens should have been
permitted to retain the other half as the guardian of his ward. And
as between- him and his co-execUtor, a judgment should have been
gfven for the one-ha.lf of the assets to Bd distributed in that
quarter. • " •
5. Under this' view, the proceedings, of the 'Orphans' Court
must be reversed back to the first settld'ment.-and a judgment ren-
dered in th© Court l^eiow on that, in conformity with this opinion.
HOLLINGER AND WIFE ^. THE BRANCH BANK
AT MOBILE. .
1. Under tlie 4th rulfe of Chancery practice, it is not necessary to' serve a
subpoena upon a married woman, unlegs she has a separate estate. It will
, be sufficient if served upon her husband. . •
2. An allegation that the mortgagor had failed to pay a promissory note,
whereby the legkl estate had become absolute, is a, sufficient allegation
that the debt was not paid, although there were other parties to the note
Error to the Chancery Court of Mobile.
J. Gayle, for plaintiff in error.
Fox, contra. ' . • ,
ORMOND, J.^This was a bill to foreclose a mortgage up-
on which the ordinary decree was made. The only objections
no'«v urged against it are, that the subpecna was served on Mrs.
G06 ALABAMA.
: : ^ . u^-
Randolph v. Carltoir.
Hollingcr only five days previous to the decree, and that there is
no sufficient allegation in the bill, tha^''the debt was./iot paid.
The first objection,dcpends upon the' construction of the 4th
^d^G of .Chancery practice, whicl? declares, that '* FemeL'Covert
may; be made defendants, by service bi subpoena upon there hus-
bands," unless the object of the bill is to affect the ^epaj-ate estate
of the wife. It is insisted, that although Xhe subpoena may be
served x)n the husband, it must issue against the wife, which' was
not done in this case The rule does not reqaire a. separate suh-
poena against the wife, nof are we able to see what Benefit would
result from it, unless she had a separate estajte; we think there
has been a compliance wjth ^he rqle.
The other objectioa is alike rmtenablQ. The allegation is, that
"Adahi C. Hollinger, has wholly Tailed iapd refused to pay tTie
same, (the promissoiy note.) whereby the legal- estate to the said
premises hafe become absolute in your orator.? This is certain-
ly sufficient, especially as the defendants did not appear and an-
swer. • Such an aUegation.would he -a sufficient breach in a suit
atlaw.^f)Oft the note, ag^iinstthe principal, or any one of the par-
ties taijrfie note, and it wdutd not be necessary to alledge that the
parties not sued had not paid it. \ '
Let the decree be affirmed. . •. •
RA^VDOLPH V. CARLTON.
1. The levy of an ancillary attachment upon. land, operates a liep, and when
a judgment is. rendered in favor of flie plaintiff, the creditor's right to have it
sold to satisfy his judgment, wUf override and defeat all intermediate con-
v^ainces made by the defendant,
2. 'the sheriff returned a^ writ o^ fieri facias, indorsed thus, viz : "Levied
on one tract of land adjoining the lands of Ira, Carlton, Mrs. Gray, and
others containing two hundred acj-es^mdre or ,less :" Hdd, that the return
is sufficiently certain, xind the precise location of the land may be shown
by extrinsic proof ; and as (he sheriff was directed to piake the money of
JUNE TERM, 1845. 607
Randolpli- V. •Carltoh.
the defendant's .estate, it will be ^tended/fbr tlierpurjKiseoftliQ levy, that
t^e defendant was the proprietor of the land.
3.. By rqceiving possession of land from another un4er a leqse, the tenaat im-
' pliedly a^nifts that the lessor has .such a title ^ authorized him thus to
^pose of the prenyses j but he cannot be held to affirm any tliihg in re-
spocJto the future ; consequently- it is allowable for tlie tenant, when at-
tempted to ie. ejected by the landlord, to show that the title of the latter
had eoqnred OT been extinguished by operation of law.
4. Where a tenant t)ays the rent, after the expiration of tlie yeaf, which was
due (according' to csontract) at its close, in an action by the landlord to re-
cover the possession, such pfayment will pot estop him from sljowing tljat
the landlord's title was extinguished during thft.ypar. - ' , *■
5. The land of B being levied on by an attachment, at the suit of W, B coiv-
veyed the same to R, under" .circumstances supposed tc5 indicatte an iiiten-.
tion to dfefraud his creditors. R rented tlie land to C, W then obtained a/
. judgment against B, and the land in question was sold to- satisfy it; R
lyought an action agairisl C, to regsver th? p6ssession : SJdd, that if C, the
tenant, slwwfed notitle acquired- subsequent to the commenQement of his
tenure^he could not defeat a recovery, 'by- showing the trapsaction b
tweeti B and R to have been intended by th^n te dplay, hinder an&
fraud creditors. - ' . • * ,,
6.' Semhle : Where an error in a charge to a jnry ^ 6ach as could not prqi
dice the party excepting', it furnishes no cauSefof the reversal of thejudg-"
merit. ^ . • ^ ,'",)!
7.' Where "the A^tand declaration descHbes.the plaintiff as an-administratol'
suing for the use of another, and his name is merely stated upon the mar-
gin of the judgment entry, without indicating that he sues in a representa-
tive character, or for the use of another, the title of a purchase]- imder an
execution issued upon the judgment in which the plaintff's character, &c.
ia. described in the same maimep as in the writ and declaratiori, wUl not be
affected by thfe discrqiancy. , , ;
Writ of Error to the Circuit Court of Greene.
Tfliswas an action of trespass, brought by the plaintifTin error
to try title to certain lands particularly described in the indorse-
ment on, the writ and declaration, as 'well as to recover damages
of the defendant for the occupancy of the same. The cause was
tried on issue joined, a verdict returned for tne defendant, and
judgment rendered accordingly. On the trial the- plaintiff ex-
cepted to the ruling of thp Court. Frorn th'c bill of exceptions it
appears that the plaintiff produfced and read to thq jury a patent
608 ALABAMA.
Randolph V. Carlton.
from the United "States to Peter R.^Beverly, fpr tKe lands. in con-
troversy, dated the 24th June, 1835 , he also adduped a deed
from' Beverly to hixnself, dated 13th April, 1840, recorded 20th
July, 1841. Also, a paper purporting to be an agreement be-
tween the plaintiff and defendant subscribed by the latter, in which
he acknowledges he had rented frorii the former the land in ques-
tion for the year 1841, jind undertaking to pay ^uch sum therefor
as tvVo individuals nam'ed might consider to be a^ fair equivalent.
On this writing was indorsed a receipt by the plaijitiff, dated the
.18th of April, 1842, for four hundred dollars of the defendant, in^
full discharge of the undertaking therein expressed. It was fur-
ther shown what wer6 the value of the rents and profits', and that
the defendant had been in' possession ^of the premises skiee the
1st of January, 1841. • • '
It was then provisd on the part of the defendant, that Wm". D.-
Wren, describiijg himself as administrator of Samuel G. Adams,
deceased, who sues for the use of Johri Thompson, jr.' cai/sed^a
suit to be brought in the Circuit Court of Greene, against Peter
R. Beverly. The writ issued 15th February, 1839, and was exe-
cuted the 16th; on the 20th of the same month an ancillary at-
tachment issued in th^ case, under the 8th sectiop of the' act of
1837, which- was levied on the 26th of that month,>'on one tract
of land, adjoinging the 'land of Ira Carlton, Mrs. Gray and others,
containing two hundred acres, more or loss." Judgment was
. rendei-ed the 12th Mai-ch, 1841, and on the first. Monday in Au-
gust of the same year, the premises in questipn were §old under "a
venditioni exponas, an^ although the* plaintiff was present at the
sale, he did not hid for them. The lands were sold by the num-
ber of the quarter section, &c. and so described * in the deed
which defendant received from the sheriff as a purchas<|y. The
plaintiff objected.to the admission of the judgment as evidence,
because on the margin of the entry the casa was stated **^illiam
D. Wren v. Peter R. Beverly," and the parties were not other-
...vijise described ; and the venditioni exponas was objected to, be-
cSise it did not conform to the judgm'ent, but stsfcted the parties as
in the Writ. These oBjections were overruled and the evidence
permitted to go to the jury.
"The defendant then gave in evidence a dped bearing date the
19th December, 1840, by which the lands in question, in conside-
ration of three thousand dollars, wqre conveyed by Bcveirly to
JUN& TERM, 1845. K^
Randolph v. Carltcaf'
the, defendant, at the jfpot of which-was' a rp^nfibrandun^ stating
that the deed was delivered to theplaintiff, tp -be held as an.e^crow,
to be delivered to Jhe gaantor upon the happening of a certain
event therein provided for. He also,ia connection with the fore-
going, read-, to the jury a writing, which recited that a note .of
th^ee thdusancC dollars; made, by the defendant, was delivered to
the plaintifr,'which he", w"as to' retail} until the suit 'of Wren against
Beverly ;was determined. If Bevei^y was successful in that
case, then thenote.\yas to be handed over tp him, but if the re-.-
suit was otherwise, the note was to be returned to defendant, and
the deed^to BeVerly. This paper expressed the condition on which
the deed became^operative, and 'bore even date therewith. . The
suit brought by Wren havii>g been • detefniined agg-irtst Beverly,
the contract for the sale. of the .land was cancelled, and .the deed
and note returned to thp parties, respectively entitled tothera.
' It AVas proved that Randolph wfts Beverly's nephew, and.witli
a knowledge j^f the pertdchcy of Wren's suit, the.'Jevy of attach-
ment, &c. he received a deed from Beverly ©f the same l^nds ;
that aiJthough fhe conveyancp was abs9lute, yet he never paid
' any part of the purchase money {that he h;id given hig note for a
lai-^e surti, but it Wyis verbally undeir-sfood betwegn hina and Bev-
erly, that he was not to be called op for th0.motiey,aintirthe title
was freed from th?^^ levy of the attachment. ' . . ■ •.
ft was not shovyn thq,t the defendant had aiotice.of the deed to
the plaintiff. There was proof tending to show, thqt the deed
from Beverly to the plgtintiff-'was intended to delay, hinder and
defraud Wren, in the collection of his debt, and that the plaintiff,
participated in. that transaction, with an .actfial or constructive
knorwledge- of the ihtentioti. '
The lands were sold by the sheriffvnotonly'under a vew^fzVzoni
Exponas, but under b. fieri facias, issued on the^ judgment in favor
of Wren, both of which' were in hish^nds at the game time ; and
the latter described -the land by the appropriate numbers of the
government suryeys. « . , - . .
The Court Charged the jury as follows ; 1. Ifthey arc satJsfied
from the evidence, that the lands- sued for,, were the same as those
mentioned in the levy upon the attaohmcht, the levy operated a
lien upon them from the^day it was made^ % To make oiit the
defence, the defendant must ifhow a judgment, 'fjxecution, levy,
and sale, and that the deed from Beverly to the J)laintiff, being
77
^ib ALABAMA.
Randolph V. Carlton.
c jsubsequfent to the levy of tjle attachment^ ceased to be operative
a§ against the -defendant, after the sde ilnder Wren's judgment.
S. .It is h. general rule that the payment of j;"ent, rs an acknow-
legenrent of tenancy, arid 4hat the tenant cannot dispute th© title
.of his landlord ; but if the jury believe, the lands in question to be
the sante that were levied 6a by th? attachment; that they were
' sold by the sheriff under that levy, th^t the plaintiff was present
at that sale, making no effort to buy in the outstanding title, then
' the defendant had the right to purchase the land, and the title of
•the lattpr- would be upheld, even against the plaintjfC . 4. That
the payment of rent- by the defendant; m April^ 184Q, for the en-
tire year 1841, does not- deprive fum of the right of controverting
the plaintiff's title. 5. The levy of the attachment was not void
'for/Uncertainty,«but if the proof ghb wed that the lands in question
answer to the description given in the levy, that Beverly had no
. other lands than tliese, in tHe ^ame locality, then ,the levy was
sufKcieptly cert^n, and would operate alien from its date.' That
if the levy was-'upon ihe land, the plaintiff's purchase, w'ith a knbw-
edge of tha fact, could noi provail against the levy, or the de-
fendant's* purchase under it. '6.' If the proof did hot show the
identity of the lands in question with'those levied on, then it w^as
competent for them to inquire, whether the deed from Bev-
erly to the plaintiff was fraudulent; if* it wasj and not a real
transaction, ot. made vs^ith intent to delay^ hinder or defraud Wren
of bis- just dehaand; if the plaintiff had ;iotice of such intenfion by
.Beverly, aad yet .bought the land,ii& acquired no title that could
' prevail over the defendant's purchase. 'But- unless the deed to
the plaintiff was fraudulent, it must prevail over defendant's pur-
chase, (because of, a prior date,) if th6 levy' was incuraWy- de-
fective. / " '.. . ' (
The plaintiff then prayed the Court tainstruct the jury to the
following effect: 1. The levy 'of an anclllaf/ attachment upon
lands operated no lien thereon, and that the defendant having en-
tered under the plaintiff, cannot set up the title he acquired under
the levy and sale. * 2. Thatthe levy of the attachment Jn favor
.-of Wren, \^as void for uneei-'tainty. 3. That it is not competent
in this case to inqiiire, whether the deed from Beverly to the
' plaintiff, was fraudulent. 4. That the payment of rent by Carl-
ton to Randolph, after Carlton's- purchase, and which accrued
thercaflei*, though, by virtue of a previous contract, estopped him
JUNi; TEEM' 1845. ; 611
Randolph- V, Carlten;
from denying, Randolph'^ title, gr setting uj5 one ac^terse to it.
These several charges were refused; •. •.«.•..*!.»*
»B. E. Porter, for the plain ttfT in«e.rror, made the following
points : 1. . The judgment produced by the defendant lo sustain
his titl6, did not follow the' process and declaration, in describing
the parties.to the action, nor did^the execution conform .to the judg-
ment. 2. The Court permilted the defendant to identify by parol
proof the lands levied on, with, thog^ th6 subject of the action. 3.
So the. ddfendant was-allo\yed to ufTer proof, that though the plain-
tlfF'had given hijs. note for the, land, he had paid no, part of the
purchase money, and that the sale was made ,to hinder and delay
creditors. In the adm'isjgion of all this evidence, it is insisted, that
the Circuit Court erred. . • . •
But the most important inquiry is, whether the defendjyit is
not to be regarde.d as the pJaintifF's tenant, and thus considered,
can he dispute the title of his landlord ? By paying the rent* ac-
cruing in 1841, the defendant recognized his tenancy -as late as
April, 1842, altl^ough he purchased in August, 1841. If this be
not so, then the purchase of the defe'ndant made him a trespasser,
as.he thereby disclaimed to hol,d under the plaintiff, and the, ac-
tion is maintainable. [S.Peters' Rep. 49 ; 6 Id. 382 ; 13 Id. 1 ;
uid. 102; 7 Johns. Rep. 188, and note l.J. ,. •
The defendant cannot be peijrpitted to set up a title adverse to
plaintiff, if (as is insisted) he is his tenant. By "admitting title in
another, a party will not be permitted to'set'up title in himself,
under a deed held when tlie admission was-_made. [12 Wend.
Rep, 57.] If one enters under A, and afterwards' takes ^. release
from B, in an ejectment against him by one holding under A, he
cannot deny, the title of A. .and set upB's as the elder and better
title. [10 Johns.Hep. 292; 6 Cow. Rep. 751 ; 6 Johns. Rep.
34 ; 7, Id: 157 ; 1 Ca^ne's ^Rep. 444 ; 2 Id. 21i5 ; 7 Johns. Rep.
If the transactipn. between Beverly, and the plaintiff was fraud-
ulent, the fraud could not be inquired into.at law [Davis v. Mq-
Rinneyi 5 Ala. Rep. 728.J And if it could, the charge of thp
Court was too -bi-oad, and calculated to mislead. The motive
makes the fraud, and, not the mere act of pufcbgse. Tije case jij
22 Wend. Rep. 122-3, relied on by the defendant, is not opposed
to the view taken ;^it iperely determines that the lessee may de-
1^ '• ALABAMA;"^
y ^ > 1 ' ^— ;
Randfllph v. uarlton/
fend himselfby showing tBe lessor has cOHveyed away, or lost
title during the existence of (he lease. v-*.' '" .;
,J: Erwii9 and J. B. Clark, for the defendant. The defendant
does not set up an outstanding title in a third person, or rely
upon the pui'chase of such a title ; but he insists'that the plaintiflf
cannot recover because his title was 'determined, or extinguished,
during the continuance of the lease ij'om the plaintiff to him.
That the title of the defendant is superior to, in fact destructive
of that on which the plaijritifF relies. Thelre wa^ no reason why
the defendant should not jiave been- perniitted to protect his ten-
ancy, by purchasing the land at the sale of the sheriff. The plain-
tiff's purchase must have been made subject to the att)ichment,
anjd as it is the policy qf the law to encourage competiticm at judi-
cial sales, the defendant should have been allowed- to bid.
"The general tule, that a tenant cannot dispute the title of his
landlord is not denied, but' it does not obtain universally. Hfere
the plaintifF^s title, (which never was good against purchfisers
and creditor^) expired, or 'was put an end to, by the sale to, sat-
isfy the lien that had attached, before jiis deed was executed, and
such case forms an exception to the rule.'. [2 B. Monr. Rep. 234 ;
6 Wend. Repl 666 ; .5 Wend. Rep. 44 ; 21 Wend Rep. 121 ; 1
A. K. Marsh. Rep. 90 ; Com. Lani & Ten. 5-20-3 ; Cro. Eliz.
Rep. 398 ; 5 Cow. Rep; 1^3, 1^4-5 ; 4 Tet^m. Rep. 681.] And
the tenant may set up the expiyation of the landlord's titlp, al-
though the latter had done no wrongful act, h\it had been^entjrely
passive.' [Com. Land. & Teh. 521.'1 ■ ^
'. ■,. ' ■ • .:■:''••- r:'-^-i'-'^
COLLIER, C. J.— 1. .The eightli sectioii of the act' of 1837,
, [Clay's Dig. 61, § 24,] authorizes the jrfaintiffin a suit at law, com-
menced in theCirquit or C6unty 'Court, to cause an attachment
to be issued against the defendant's estate, where he absconds or
secretes himself, or shall remove, or ^e a'bout to remove out* of
this State, or Shall be about to /emove* hi"? property out of this
Stdte, or-be-about to' dispose- of his property fraudulently, 'with,
intent to avoid the payment of the debt sued for. It also provides
that the plaintiff shall makeoathtothe truthofthe particular ground
upon which the attachmc^ftt issUes,and thatthe same "shall be issu-
ed, executed and returned as near as may. be in the same manner
as original ^.ttachments, and the said affidavit^ &nd bond, and at-
JUNE TERM, 1845. JSMf
Randolph v. Carftoii.
tathment, when' returned, shall be filed v»(ith the papers in .the ori-
ginal suit, and shall constitute a part thereof, and the plaintiff in
said suit, may proceed to judgnlieiit as in other cases," * By the
first section- of the s^me statute it is enacted, " Whenever an ori-
ginal attachrnenl shall be issued for, or upon §ny of the causes
now provided by law, it shall be lawful to levy the sarpe upon any
land belonging to the defendant in sUch attachment, by the officer "
w'hose duty.it may be to leVyof, execute the same, in the same man-
ner that attachments are. or may by law authorized to be levied on
goods, chattels,or effects."- [Clay's Dig. 60, § 29.] The 9th section
provideslhat any property which ir)ay be attached under the pro-
visions o|^e eighth section, noay be jTsplevied, as in other cases
of attachment, ar(d after judgment' shall be rendered and execu-
tion issued against'the defendant, if any property replevied, shall
not be delivered to the sheriff er his deputy, holding such execu-
tion, within ten day's after the demand thereof, &c., it shall be the
duty of the. sheriff^, &c. to certify the fact to the cleHc issuing the
•same; whereupon the replevin bond shall be deemed forfeited,
audit shall be the duty of. the clerk forthwith to issiip an execu-
tion, ag-a:inst the principal and sureties therein, for the amount of
the plaintiflf's judgment, with' costs : jFurthe7^,.when judgment shall
be rendered, executio'n may issue in the usual way, which shall
first be levied on the. property attached, if to be had, and thenup^
on anyothet property of the -defendant, until a sufficient amount
shall be levied on to satisfy ^he execution in fulk [Ciay's.Dig,
62, § ars.] ' . • . . - ^ - . '
In Mcllae v. McLean, 3 Pprter's Rep. 138,. it was decided,
that an attachment created a lien in favor of an attaching credi-
tor, which cEHinot be divested by the replevying of the property ;
and .that when attached, it wjis in the custody of the .law, to abide
the judgment 6f the Coui't._ So- in Pond v. Griffin, 1 Ala. Rep.
678, N. S., a case which arose subsequent tp the passage of the
E^ct of 1837, it was held that an attachment levied on slaves cre-
ated a lien which could not be ^ivested by vyrits of ^(^ri facias^
placed m the sheriff's hands afterwards, but on the same day.
[See Dore v. Dawson, ,6 Ala^ Rep. 712.]
It is perfectly clear from the act and the cases cited, that lh6 "
ancillary attachment which is provided fpr, by the eighth section,
may be levied on land, and that the lien in such case, and in respect
to such property, is a fiecfessary consequence of the leVy. This
614 ALABAMA.
Randolph v. Carlton.*
conclusion is so phyiou?, jrom these ^citations, as to req.uire nei-
ther argument or ilkistration. . '-. ; . ' •
2. "In Webb v. Bumpass,.9 Porter's Rep., 301, which: was. an
action by. a purchaser at a sheriff's sale* to recover the posses-,
sion of land, the levy of the fieri facias was indorsed thus :— ^
« Levied on a tract of land,"- upon which "Gabriel; Bump9,ss noiv •
lives, in Lauderdale county, adjoining Richard Baugh and^ * ■■ y
supposed to contain eighty acres," &c. \Ye said, " It was cer-
tainly no objection to the execution offered in e-vidence, ' that the
sheriff's return does not descj'ibe with more particularity,, the
land levied on. There is- no statute imposing uppfl the sheriff the
duty of rr\aking a moye -particular description." Benjamin v.
Smith, [4 Wend. Rep/.462,"). is thero- cited, in which the Courj -
said it was not necossar^.iri a return to "ah execution, by virtue of
which lands have beeri sold^tc^vdescribe the latid.with particulari-
ty, but it was competent to -fehrow its identity with, that ley^dod
by parol proof. [See.. also, Boylstori^y., Carver,. 1=1 Mafeg/Rep.
.515 ; Hedge v. Drew,* 13 Tick,, Repl'Ui;- Hub^ertj!y. McGol-,
=:;Jum,6 Ala. Rep.:22]U].;^ • ' . .,\-.^;l'f:.;:^i:: lA'**i\v\.' ^''v '
• In the case before us, theattdchmgntiwfls .rewijTie4 onip
tract of land adjoining the'lands of IxaX^arlton,]VIrs. <jrray,and othr
crs,containing two hundred acres^more or less.".;' This is sufficient-*,
ly certain, -and the precise location "of the land may be shown, by.
extrinsic proof. It is not necessary that the return should have .
affirmed that the defendant in attachment was the proprietor of',
the land ; this will be intended even where the regularity- of the
levy is drawn in.questioh by a direct proceeding. The sheriff^
it must be supposed, did his duty, and as he was conimanded ta
attach the defendant's estate, ij; will not be presumed that he levied "
upon the property of ahother person. [Bickerstaff v. Patterspn^ ^
8- Porter's Rep. 245 ;• Kirksey, efaj. v. Bates-, 1 Ala.'.Rep. N. S,
303 ; Miller,, et al. y. McMiHan, et al^ 4 .'Ala.- Rep. 527.] - . . ,
3. It is said a tenant cahiiot depy the title of his landlord; un-« •
der which he eptered ; yet fie may show that it has terminated,
either by its original iimitation, or by conveyance, or by.the ju,dg-
ment and • operation of' la'w. .[Jacksop x. Davis, 5 Cow. Rep.
123-134.] In Jackson y. Rowknd, 6 Wend. Rep. 666, 671, the
defendant, who was the tenant of t|ie -lessor df the plaintiff, sej up
a title acquired by a third person, ^s ^ purchaser under execit- '
tion, issued on.^udgmerits against the lessor. In apswer to the ^-
JUNE TERM, 1845. el 5
Randolph v. Carlton.
gument that the defendajpit could riot ayail himself of the "ioHt-
standing title, the Court s&id « A tenant -cannot dispute the title
ofhislanBlor^, so long aS it remains as it was at the time" the
tenancy commenced ; but he inay show that the' title under
which he entered has expired, pv has" been extinguished.^^ Fur-
ther, if the landlord se6ks to eject his tenant, surely the latter may
set up an- outstanding title. «- I^o well founded objection is per-
ceived to the defendant's se'ttmgup a title, acquired under a judg-
ment since he became tenant, overreaching the title of his land-
lord." There, the title set up, was made effective in 1827, -biit
the Court held that it should relate .backto the time when (he
judgments became operativejBnd-thug'.defeat a mortgage. execu-
ted* by the landlord i;i the interval. 'So it has been" decided /by
the sarhe Court, that '" so long" as <a tenant isnot expelled, he hjls
- in gehpral,nq ri*ht to question liis, landlord's* title. He tanriot
deny that he had a right to demise* at the trn^e of the leaseV He
cannot defend on the ground that he has acquired an outstanding
tftle ad verse' t(i' that ^of.lh^ Tandlnrd. But lam not aware that
.the estoppel goes faluriieh If the landlord part with his title
pending, the l03se,-llie- duty'of the tenaiit, includiog that^of paying
rent, isv due to tHe "assigriee } and shoujd.the tenant buy in the as-
signee's right, the lease woujid'be 'extiji^iiished. So," if the land-
*lord sell" and release to'^tfiQ lessee. IntHe^'dCa'slgjgno action would
lie fo'V the- renf." Therefore, had there been a sheriff 's sale of the
whole reversion of the denajsed premises, and tlie defendant had'
redeemfed or purchased under the judgment, no action could have
beeh Sustained ; 'iqt a purchase or acquisition of titie 'under a
judgment agaihst the lessor, is the same thing as if he had granted
by deed-. It is> i6 be ^ure, acquiring title indirectly, gnH by ope-
ration of law, from the lessor ; but it-comes through his act and
Gonsent,'or Kis neglect, and is 'therefore the same in legal effect
as if he had granted "or demised "the reversion."" ■ [Nellis v. La-
throp, 22'Wend.-Rep. lafj] ■ /\
.' InSwann V. Wilson,[l A,- K. Mtirsh.- Rep. 99,] the general
rule, that a tenant cannot controvert his landlord's title, was ad-
mitted ; but it was said beK may Show that the landlord's title has
expired ; or tliat a tftle Which he himself ^acquired* has been ad«-
'judged by th^e. decree of a court xjf equity to be thesaperiorone.
And^in Gregory's hoirs v. Crab''s-heirs, [2 B.- Monr, Rep. 234,J it
wis held, thatthe tenant ia.not estopped to fehow that the landlord '
616 ALABAMA.
Randolph v. Carlton.
conveyed the premises to a third person subsequent to the ten-
ant's entrvj and that allegiance is due to the "assignee*
Comyn, in his Treatise on the Law df Landlord an"d Tenant,
520-523, after stating the general- mle, that the defendant cannot
defend in ejectment against the landlord, or those claiming under
him, upon a supposed defect of title, says : " But though the de-
fendant cannot show that his lessor nevkr had title to the demised
premises, he may, on admitting that he once had a title, shew,-
that his interest has expired. As, if the lessor being tenant jpet'
autre me, bring debt against the lessee for rent accruing since
the death of cestui que vie, the tenant may show, (not that the
lessor never had title, but admitting that he once had title,) that
the iaterest of the lessor is at an end. Where, therefore, the heif
of the lessor brought covenant for want 'of repairs, abd the de-
fendant pleaded that the lessor was only tenant for life, and tra--
versed that the reversiorj was in him and his heirs, the Court held-
this to be a good plea." 'iFiir^Aer, the lessee may show that the'
lessor was only seized in right of his wife for her life, and that
she died before the covenant was broken; In Doe ex^ dem Low^
den V. Warson, 2 StarkiS's Rep. 230, Lord Ellenborough held,
that the tenant in ejectment might show 'Uia-t -his I^an41cu:dtift4 dis-
posed of his interest durin^x the term.' f * ' v'.-*»"^'»'j,» •*'*i''\:,
The defence set up in' the case before us, when lir^ited to the
effect oi the attachment, and proceedings -consequent thereon,
does not deny^that t|;ie plaintiff had a good title at the time the de-
fendant became his tenant ; but it assumes, that that title," be it
what it may,' has beep, extinguished sinqe the tenancy commenc-
ed, and that the defendant has become the proprietor of the.pr^
mises in question. By receiviifg tbe possession of land from' an-
other, under a lease, the, tenant impliedly admits that his lessor
has suclya title as authorized, him thus tb-'digpose of fb6 premises,-
but he cannot be hdld to affirjn any thing in respect to its contin-
uance; consequently it is allowable to show (that the title has ex*
pired, or been 'extinguished by operation of Mw. ,^,".*'
We have "seen, that by'the levy of the attachment on the lahij, '
the plaintiff acquired a lien upon it, which, continued in force up
to the rendition of the judgment, and the-statue saved it, and made "
it available, although fH fieri facias instead of a venditioni expo- '
nas was issued upon the Judgment. Speaking of the, lien which
the levy of an attachment operates, -the: Superior Court of New
JUNE TERM, 1845. i^l%
Randolph V. Carkou.'
Hampshk'e said, « the exisjenc^ of the lien or security is, in our
view, in no way contingent, conditional or inchoate.. Its exis-
tence does, not depend upon the judgment. It exists in its full
force^ frpra the moment the attachment is made.; as much so as
a.lien by judgmeijt, upon the rendition of the judgment in the
States where that security is recognized. As we Have already
seen, it fastep^ hself.upon, and binds the property, at once- giv-
ing priority of right," &c. [Kittred^e v. Warren, January term,
1844;.7,Law Reported, No. 2*J The plaintiff purchased from
Beverly after the levy of Wren's, attachment, and after the latter
acquired a right to hp.ve'the land sold to satisfy such judgment as
he might obtain in that proceeding. This lien we have seen,
was continuing, and paramount to- any conveyance of the proper-
ty which Beverly could make. -If » third person had become the
purchaser at the sale under the execution, the cases cited show,
that thcallegiance of the tenant would. be transferred to him, if
the tenant doiitinuQd to occupy >vith the permission of such a pur;
chaser; and without stopping to p^rticultirize, in several of the
cases, the tenant was allowed to set up his own title, . acquired
after the extinction of the landlord's ; and ncme of them .are op-
posed to a defence" thus sustained.
None of the elementary writers or adjudged cases,which have
fallen under our obsfii'vation lay, down the general rule, as one of
unyielding and universal application ;. but we have seen that it
ha^ many exceptions. Perhaps no case may be found which is
in totidem verbis like the present, but we think the principle of
several ofthose noticed by us arc- so strikingly similar, as pot to
require illustration to make the analogy»more manifest.
Xhe title of the plaintiff doeg not remain as it did at the time
the defendant's tqnancy commenced. Then, he had as it res-
pects Beverly, an unquestionable right, and. if Wren failed in his
suit^ or the lien of the attachment was -discharged, his title would
be disembarrassed, unless it could be overturned, . because the ,
purchase was not honafide. But the suit was prosecuted to judg-
ment, and execution, the lien of the attachment made available, "
apd all sejjtiblance of title 4i vested from the plaintiiT.' Under su<ih
circumstances, the defendant might have resisted a recoveiy, (as
we have seen,) if a third person had purchased, by becoming bis
tenant; and there being no rule oljaw which forbids ona situated
78 . • . .-. . '
618 ' ALABAMA.
Rf^ndolph V. Carlton.
as the defendant, to purchase, we think he may resist a recovery
by setting up the title he ha:s acquired. i
4. The payment by the -defendant, in April, 1842jofthe rent
which he had agreed to pay the plaintiff for thq enjoyment of the
premises during the year 1841, was not an admission of a contin-
uing tenancy, and consequently does not estop him from showing
that the plaintiff's title had been extinguished, subsequent to the
commencement of the lease. ■
5. In the sixth instruction to the jury^ the Circuit Judge misap-
prehended the law. He said, if the proof did not show the iden-
tity of the lands in question with those levied on, then it was com-
petent for them to inquire into the bona fides of the transaction
•between Beverly and Randolph ; and if the conveyance was
made, with the intention tp defraud y(ren 'of his demand, and so
known to the plaintiff, then the plaintiff acquired no title that could
prevail against the defendant's purchase.' -This charge tolergftes
the right of the tenant to dispute the title of His landlord. It does
not refer to any change in the title after the tenancy commenced,
but it assumes, that if it was then invalid, the tenant might defend
an action for his ouster, by showing its invahdity ; and this with-
out reference to any post factum right acquired by the tenant.
As to defendant's purchase of lands under execution-, it did not
authorize him to hold them against his landlord, if he could not
make it appear that' those levied on by the attachment and sold
.under the execution, were the same which the plaintiff was seek-
ing to recover. Such sale arid purchase M^ould avail nothing, and
should be thrown entirely out of view in considering the legal
question raised upon the charge. When stripped of every thing
extraneous, the instruction amounts to this, viz : If the transac-
tion between BeVej'ly and the plaintiff was- influenced by the in-
tention to defraud Wren, and the plaintiff was cognizant of the
quo animo of Beverly, then he could not oust his tenant, though
the latter showed no title. It is sufficiently manifest from what
Ijas been said, that this charge is not in harmony with the law.
If the question whether the lands which have been attached
and sold under the execution were identical with thosS now, in
controversy, was one of a legal .character, and the record show-
ed their identity, we might perhaps be inclined to hold that the
error noticed did not prejudice the plaintiff; (and consequently
furnished plo cause forthe reversal of the jadgnlent. But there
JUNE TERM, 1845. 6W
Randolph v. Carlton.
is no such proof recited in'the record. The declaration describes
the land by its numbers, according to the official survey, while (as
we have seen,) in the levy of the attachment, it is described by Us
localHi^ in reference to other proprietors of adjoining kinds. Thus
it is obvious that, parol proof was necessary to settle t|ie question
of identity? ^ '. • -^■
6. In respect to the discrepancy between the writ, declaration
and judgment, it certainly was not such as should have induced
the exclusion of the judgment as evidence. The writ and decla-
ration describe^ Wren as administrator, suing for the use of an-
other, and his name is merely stated upon the margin of the judg-
ment,' without Showing in what character he recovered. We
should be disposed to treat this objection as untenable, even in a
direct proceeding at the suit of Beverly,4o reverse Wren's judg-
ment,' but coming up collaterally, we have no hesitation in saying
it cannot be supported. The judgment furnished o, warrant for
the execution, and we-will not go further back to scan the regu-
larity of the proceedings. ' . .
The other points raised in the cause, are either embraced by
those considered, or cannot arise upon a future triaL Without
extending this opinion to greater length, we have only to add, that
the judgment of the Cirpuit Court is reversed, and the cause re-
manded. ' . ' .
GOLDTHWAITE, J., dissenting — ;! am constrained in this
casfe, to dissent from the opinion just delivered^ because, in my
judgment, the effect of it is to subvert the salutary rule 'that a
tenant shall not be permitted to controvert the title of his land-
lord.
. Having regard fo our statutes protecting the actual possession,
I doubt the propriety of any exception to this' rale, even when
the title of the landlord -is sold by sheriff's sJ^e,;as the tendency
of permitting the tenant, in that case, to purchasefor himscH", isto
tempt the fealty which he owes his landlord, and turn one who
should be a faithful retainer into a secret enemy ; but conceding
that as an exception, it does not touch, this case. Here, there
has been no sale of Randolph's titl(?, .but Bcverly!s is the only one
with- whfch the purchaser from the sheriff is invested. Beverly's
title is advei-se to that of'Randolph, and if Carlton had purchas-
ed directly from Beveily, no one could prpjierly assert that. a title
620 ALABAMA.
■ 1 — ■ -■ — ■ — . — . — .
Flanagan v. Gilchrist.
SO acquired coultf J)e interposed to defeat Randolph ; and cati
there be a different, rule when the title passes by nneans of the she-
riff, who is the mfcrc legal ngent of Bevdrly? It may be said,
that Beverly himself could cotivey ho title to another, but, # test
the principle, let it be Supposed there was a valid contract be-
tween Randolph and him for the purchase, made previous 'to.the
levy of the attachment, but that the deed was eithertiot executed
at all, or was so after the levy. What then is the condition of the
parties under the operation of the rqle declared ? - It seems to
fne, that the decision now made, extends the exceptions to the
ryle so far as to leave it of little value to the landlord.
' In ray judgment, the result which is attained by the Court is
correct, but I think also-, that the principle admitted at the close
of the opinion governs the entire cause. ;
FLAl^AGAN v. GILCHRIST.
1. In debt upon an attachment bond, the declaration should show that the at-
* tachincnt was wrongfully Or vcxatiously sued out, and that thereby the
obligee has sustained 'damages. * * ' ...
•Writof Error to the County- Court' of Lowndes. . ' ^
Action of debt,^ by Flanagan against Gilchrist. The decla-
ration sets out that -on -ia certain day, 6z;c. 'one* Wiley Rogers
sued out an original attachment before one Stanly, a justice of
the peace for Lowndes county, against the effects of the plain-
tiff, returnable to the Circuit Court of said county, by virtue of
which writ the sheritfjevied on two slaves, and then detained
and kept the same under the said writ. That to procure the
said writ the said Rogei's 'entered' into bond with Gilchrist and
one Bedford as his sureties. The declaration then proceeds to
set out the bond,, with the conditioh ; which is that the said Ro-
gers should prosecute his attachment to -effect, and pay and sa-
4
JUNE TEilM, 1845; G21
Flanagan v. Gilchrist
tisfy Flanagan all such costs and damages as he. might sustain by
the wrongfii and- vexatious suing out. of such attachment. The
breach assigned is, that Rogers did not prosecute his - attachment
to effect, lior pay Flanagan the costs, damages, &c. which he
sustained by the wrongful and v^exatious suing out of the attach-
ment, by means whereof the said Ipond became forfeited, and the
defendant liable to pcty the penalty. -r
The defendant demurred to the declaration, and his .demurrer
was sustained. This is, assigned as error.
' f ' " ■
G. W. GAYLE,.forthe plaintiff in error, cited HeiTfdon v. For-
ney, 4 Ala. R^pV 243. ' . . '
No counsel appeared for "defendant in error. • '
GOLDTHWAITE, J.— The question involved here- has re-
ference to the manner in which a broach of the condition of aii at-
tachment bond shjil| be assigned, when debt is the form of action.
In Hemdon v. Forney, 4 Ala. Rep. 243, we detcrm'ined that such
an action was proper, although the damages sustained by the obli- '
gee had not been ascertained in an action on the case against the per-
son suing out ihe attachment ; butthen there was no necessity to
determine how the pleadings should be. In the subsequent case
of Hill V. Rushing, lb. 212, the action was covenant, under simi-
lar circumstances, and the breaches then assigned were consider-
ed sufficient* In that suit, the (Jccfaration averrgd that the at-
tachment had bcerl sued out without any good and sufficient rea-
son, arid for wrongful and vexatious purposes ; and that fho
plaiatiff thereby had-sustained damages to a specific" amount, by
reason of his slaves being levied on ; also, .in his having been
compelled to pay costs, and employ counsel to defend himself
from the attachment, and to regain his slaves ; also, in his credit,
which had been greatly injured. We further c6nsidercd, that the
action upon the bond was to be governed in all respects by the
rules'applioable to an action on the case, except- that the recpye-
ry could not exceed the penalty of the. bdnd^-
In the case tinkler' consideration the breach is assigned, nearly
in the words of the condition ; but J.hcre is no averment that the
attachment was cither wvongfull^ or vcxatiously sued out ;nol*
i& there a like averment that damages have resulted to the phiin-
6 22 ALABAMA.
Caskey, et als. v. Nitcher.
tiff from wrongfully or 'ViBxatiously suing it put. Ir^ our judg-
ment the declaration is defective in both these particulars.
The general- rule with respect to the assignment of hrcaches,
is that they may be assigned by negativing the terms of the con-
dition, but this .is only when the performance does npt depend
upon some other event; whenever it does that event must be averr-
ed. Thus, it is said, that in debt upon a bond, conditioned that
one should render an account of monies received*, it should be
averred that he did receive monies, and that Jie did not render an
account of such monies, [f Ohitty's Plead. 326.] This seems
decisive to show, that the averment that the defendant has not
paid the costs and dapna^es which the plaintiff has sustained by
the wrongful or vexatious suing out of the attachment is defec-
tive, without averring that the , attachment was sued out with
that purpose; or that damages have resulted from it.
We think the demurrer was properly sustained, as the decla-
ration does not conform toHhese views. Judgment affirmed.
• CASKEY, et: als. v. NITCHER.
tl A notice that thp sheriff " has failed to rettirii an execution," which is
desciybed, is sufficient, without an allegation that he failed tp return it
three days before the return day of the writ.
2. A return of the writ, two days- before the return term of Uie writ, without
a sufficient exiJuse, is in law no return,
3. A notice, that the plaintiff proceeds for the aipount sjiecified in the execu-
tion, sufficiently indic'ates under what statute he proceeds, . .
4. A certified copy of the sheriff's bond, is. sufficient, unless the 'authority of
■ the bond. is questioned by plea, when it would be proper for the Court to
require the production of the original. " " - ' . ;•
Biyor to .the County Court of Chambers. — -*?•• /
JUNE TERM, 1845. €83
Caskey, et als. v. Nitcher.
Motion by the defendant in error, against the- plaintiff in
error, as sheriff, and also against his sureties, for failing to return
^ fieri facias. ' ^ . ,
The notice, after describing the execution, when it issued, and
came to the sheriff's hands, alledges that he has «' failed to return
said writ of execution," and informs him that a motion will be'
made "for the amount of said writ of execution,- and the costs of
the motion."
To thi^ notice the defendant demurred, and the Court overrul-
ed the demurrer.
An issue being made up between the parties, and submitted tO
a jury, and it being in proof, that the first day of the term to which
t^ie exe.6ution was returnable; was the 28d January, 1843, the
defendant moved the Court to <;harge, that if they found that the'
execution was returned ton the 21st January, 1843, they must
find the issue for the defendant, which charge the Court refused,
but charged the jury, that under the issue, farmed, if tl^e execution
was not returned, three days before the term of the Court to
which it was returnable, in the absence of any satisfactory proof
of excuse for n6t so rctufnii^ it, they must find the issue for the
plaintiff; to which the defendant excepted.
' A paper, purpor^ng to- be a certified copy pf the sheriff's bond,
was in evidence, and the "Court ruled, that tis it purported to be
approved by the Judge of the County Court, and certified by the
clerjc, was sufficient to authorize its being read to "the jury, with-
out proof ^of the signatures of the obligprs, to which the defend-
ants excepted. The assignments of error relate to the judgment
upon thef demurrer to the notice, and the matter of the bill of ex-
ceptions. . . • 1 . - . • ■
Rice, for plaintiff in error, argued that the notice Was defective,
in not setting out that the execution was not returned three days
before the return day, and iti hot specifying.-whether the proceed-
ings were had under, the act of 1807, or 1819. [5 Porter, 537.]
There is no statute authorizing a motion such as this. ,
^ t ' '
ORMOND, J.— We. consider the notice in this case suflliciem.
The objection is, that it is not allcdgedthat the sherift' failed to
return tire execution thrqe days befyre tlie term of the Court, to
which the writ was returnable. The obicct of the notice is to in-
> ^
Caskey, et als. v.Nitcher.
•fofm the shcrifTwhat he ig to answer, and.it is impossible to sup-
pose, that he xva? not distinctly ^advised that he was proceeded
against for a failure to return the process, to the term of the Court
irfdicated' in the notice, according to law.
The same remarks appl^^ to the qbjection, that it is not stated
■ in the notice, whether the proceeding is had under the act of 1807,
or 1819, as w.asheld to be necessary in Hill v. The State Bank,
5 Porter, 537. The notice in that case was, " the plaintiff will
move the Court .for judgment against you, according to the sta-
'• tute in such case made and provided," and there being two sta-
tutes upon the subject, one giving a, fine of fiye per cent, on the
amount of the judgment, and the other the amount of the judg-
ment itself, upon either ,of which fit his election the plaintiff might
proceed, this Court held the notice to be too ambiguous ina case
of this penal character. But in this case there i& no ambigui-
ty, or room for doubt. The. sheriff is distinctly informed, that the
plaintiff gops for the amount .specified in the Writ of execution,
which is in truth more definite, than if he had been referred to
the statute conferring the right on the plaintiff. Thp addition
"and the costs of this motion," is the legal consequence of the
motion if successful,, and certainly does not vitiate it.
The certified copy pfthe sheriff's official bond was doubtless
sufficient prima facie, that such a bond had been executed, and
that the signatures, to it were genuine. It appears that the bond
^ was received, ajid'approved by this Judge of the County Court; it
then .became, a . record of his Court. The statute, (Clay's Dig.'
164, § 15,) requires, that it shall be recorded, and that a copy of
the record shal] be eyider^ce, unless the Oourt thinks proper to
require the origmal to be produced. This would be done in pro-
per^ cases, when the authenticity of the bond \vslB' questioned by
plea* No "'such plea -was interposed in this case, and nothing
shown to cast •suspicion upon the certified copy^ which was there-
fore evidence, quite,.as potent as the original, if produced, would
have been. / ■ • . .
The statute, (Clay's Dig. 336, §-131,) expressly requires the
sheriff " tQ return the writ three days previous to the term of the
Court tdwhiph.it shall h§ returnable," and makes him lial?le to
all the penalties pKOV^ded by law, .for a -fairlyre so to. return it.' A
return thpi:efore, two days befoie the first day of the return term,
JUNE term; 1845.- 6231
— — J • — . — ■'■'■■ — ' 1 *
Griffin V. GeAaWfcy. ' '
unless thepe 'he «ome "satisfactory excuse shown for the onai^io^
is, in law, no return. • ■ ' .■•'.•...*.-•.- v *...
Let the judgment be. affirKied. •' * "' *• •• > ^ .' *
\ > ■• >
GRlFPtJNT V. <JANAW^Y.
I:* 111 anaetion against a sheriff /or fiiiling txt levy an attactinient upon a Suf-
ficiency of property to satisfy the judgment reridered thereon, the measiiire
of <i^xnages is tlae iajury sustained by the sheriff 'sfiiilure to niake the pro-
. jver levy. The valae pf the prt^erty le^ued on jn such (jftse, slwbld be equal
to the amount tjf the debt,s6ught .to be recovered, niakiijg a proper allow-
ance for depreciatian in price, the effect of a forced sale, as also costs and
other incidental cbai^ges : and evidence of ii^e sum at which the property
was sold upder the execution, should perhaps be coBsidered more satis&c-
"tofyas tb its value than the opinions Of witnessfes.
' Writ of Error to the County Coutt of Talladega.
This was an actioh on the case, at the soft ©f the defendant in
error, to recover dannages of the pkiinfiff, fqr the failure to levy
an attachnient placed in his hands, as sheriff, oh the 27lh of Oc-
tober, 1841, in favor' of the former, against the estate of |Shelton
Kerirtefly, on h. ^uffi'diency of property tcf satisfy the same. [See
this case when "previously here, reported ih 6 Ala. Rep. 148.J
The cause, was tried on thq general issue, and other pleas, a ver-
dict was returned in favor of the plaiMiff for $02 30, attd judg-
ment rendered accordingly, '' ,' ■ " *■ ,
" On the trial, the defendant'excepted*tothe riding DfthetDourt.
It was shown by* the" attachment and by other proof, that it was
levied on a horse, as Ihe property of the defendant in attachment,
which 'Vvas' proved by one witness to be worth seventy-five dol-
lars, at the tifpe 6fthe levy, and by another to be worth one hun-
dred dollars. The attachment was lor f 86 07 h^, issued about
three months previous to the trial term of the cau^e to w})ich it
was aneillary, and at which tljc judgment was obtained. Soon
79
626 >• .ALABAMA. '
driffin V. Ganawuy.
^ft6i' the rendition iDfthe ju^lgnaeuit, a venditioni exponas issued,
Under which the 'horse^that had been levied on was spld for the
.sum of forty dollars ;' of that sum 4he plaintiff r6oeived.»-Jbut ten
dollars, the 'residue being appropriated to the payment of the
COStSi
Upon these facts, the Ceurt charged the jury, that jn estimat-
ing the' value "of the horse levied on, .-they 'could look to the price
at which he was sold, as well as the other evidence ; and that the
evidence of the witnesses as to- the value was not conclusive.
The defendant's counsel then prayed the Court to charge the jury
—1. Jf the defendant was guilty of the neglect charged in the
declaration, the measure of the damages was hot the difference
between the ten dollars which ^e plaintiff received from the salle
oFtheliOrse; and' the-plaihtiff's demand sotight to be recovered".
2. That the defendant could not be Triade" liable for more than the
diffefence between-the value of- the horse at the time of the I^y,
and the amount for w^ich he was i-equired to attajch Kennedy's
- estate. These several*6harg^s'.w6re refused. '. " • . ,
S. F. Rice, for the plaintiff in error, insisted that the first ctia^ge
was erroneous, because the' inquiry was npt as to the value of the
horse some three or four 'months after the levy, (and perhaps
longer,) when he was sold"; and because it ma"ke& the sheriff an
insurer,, that the value of the t^orsd would not depreciate; between
the levy and sale. The charges refused vy^ere> obviously prpper,
andshould hav^ been giyeij. .• " ">,>>•,-' •...,.,..,.-•>. -.^ k- r*..
■ " • ■ '■ ■ . ■ ^'''' ' -:*•*• ."'v.-.-!'. ."■'
. L. E. Parsqjjs, for. the defendant. The witness wbo testified
' to the valufe of the horse did not sjjeak in reierence to a pvhlic sale
for casfi^ although the law requires the sheriff thug to (dispose of
, p^xjp^ty levied- on by him.. It w5as -proper for the jury to locdc
at'all the facts in coming to a <»oncluskon on this point.
The first charge prayed, is-a mere negative;, without fpi'mshin^
any rule for ascertaining the damages, and should hot hkve been
given. The second was properly refused, .because there was
Qoproof of the value of the horse sit apublic salpforfaslu The wit-
nesses doubtless had reference to sales made upon negotiations in
the tjvdinary way, between seller and" purchaser. . •. , ,
r ■ ■ I ,
COLLIER, C. J. — The. true measure ofdamageginthis case
JUNE TERM^l 845. 637
Crriffia V. Gangway,
is, the injury w-hich the plaintifF sustained by the neglect of the
defendant to ieVy the attachment, on a sufficiency of property to
satisfy the judgment coDsequerrt thereupon. . It is fairly inferri-
ble from the evidence, that the horse levifed on would not, at a
forced Sale, have sold for a- sum eqital to that foi' which the ac-
tion was brcrugiit, 16 say npthing of the^oxpense of keeping such
property .befoi-x? it is replevied, »nd otber cpsts. , Jf as much of the
estate of the defendant in attachment, making a prOpejp allowance
for depreciation in .priqe, costs arid ipcidentalxihaTges, W€is levied
on, as was necessary to, satisfy these, together with the debt, then,
perhaps, the, sheriff would boidigcharg&d, if from causes freyond
his control, it should Tdc lost, o,r bec'bme valueless. . . ;
' The evidence of the defendant's witnesses as to the value of
the hdi^e, was inconGlusiyc". These witnesses SoubtlesS spoke in
reference to the marketprice, as ascertained in ordinary contracts
between man -and man. • JJ^owjt is kpo^n to all who have any
knowledge upon the subjec*, that sales of p)'bpeFty for which there
is hot a great dcmatjd, is leeklfkelv to corpmand a fair pricfe ata
forced than a voluHtary -sale.
We shotildcorisidejf the price at which. the horse sold under the
venditigm exponas^ as fi^rnishing a mopfe certain standard of va-
lue;, th^n the testimony of witnesses ; especially, us there was no
evidence tending to sljow any thing Jike -depreciation from bad
treatjuent or otherwise, between tjie levy and sale. But, be this
as it may, the ch?irge of the Court 'upon the evidence, assuming
the defendant's negleqt-of of^eiaLduty, could not poesiWy preju-
dice him ; ibr we have already -seen, -that if neglect was estab-
lished, the plaintiff is -entitled to be eopipensated to the extent of
the injury ho has suffered. , • " , •
Frojm v(fhat has bcgrtsaid, it clearly results, that neither of the
charges prayed should have been given. They assume that the
defendant oo.uld ftot be -made liable for .more, th^n the diffei;ence
between the. vijlue of thehorsp at the time of the levy, and ^he
amouni^for which tl^e attachnaenX issued. This, it has been shown,
is not the. law. There is th^ja 1)9 ^Tor in the points presented,
and the judgmerxt is therefore affirmed.
628 • " ALABAMA.
Riggff y. Andrew»& Go.
ij.;, • • » "> ' . . * • ■••^V'iV.'
:t ,.• :^*;-'HiGGS-v. ANDREWS & CO: :^<v
.A-^V '^' ■'^»'^^'' '/';■■*•*•;:- '-^ ■•* . ". ■ '■'• > ■■•■*-' ' ■i^"^*'*'-'-' -■' ■-
I.' In a'sutt.'by an indorsee a^inst his iiiuhediate inderser, on a note ^tfr-
pbrting to be made by G. &.B. in liquidation, by W. B., it is no defect if
the latter words, are omitted in the declaration, nc«r can the note- be exelu-
' ded on the ground that it varies from that declared on. ,
, /\% It is imnecessary to fill up a bljuik indorsement, even when the descrip-
■ f tioninthe declaration is that the note was indorsed to the plai;fttiffs.
•3. When a person removes and settles his family at j! place different from his
., former re^dpnee, the presumption is that such is also his residence, arvd
the mere fact that he returns to his former pfece *bf doing business, is m-
feufficient to warrant t^e presumption that sufch i? his place of transacting
business. This is a matter peculiarly within the knowledge of the defend-
q.nt, and should be made to appear with certaihty. ' ' .
■ '^- \- ■ : -' . ^ '. ■ .'c ••;■";• .-. ; ^ ■ _^"'. ,v-*^ ^'^
z' • 'Wiitof Error to the Corintyl^'urf'ot Pallas. . V:; ' ' "* "
' ■.,•■•'••,• ^'^ .;<c ?■■".:.
Assumpsit by Andrews & Co. against Riggs, as- the indorser
of a promissory note, which; in the -indorsement on the writ, is
thus set out: "MobiJe, 28th April, 1841. Three years" after
date, we promise to pay to' Daniel M. Riggs, Esq. or order, six
. hundredand eighty-two IG-lOO dollars, value i*eceived,~ negotia-
, We and, payable at the Bank ofMobile.- ■ •
■i.'. ** . ■'^■''': .. , ^ '.•*»•■ ' «{>AYLE &, Bower, in liquidation', '•
\ *' ":' * *'• '■ ■• ■•■• •'••■ ■ "' ^By Wm. Bower." .
The declaration describes the note a^ made by Gayle & Bower.
The defendant appeared, and craved oyer of the writ "and in-
dorsement upon it, which being given, he dernurred. Thc'Court
overruled the demurrer. ' - '"'■ - '
He then pleaded seveml'pleas in bar of the action. ■ At the
trial, upon the general as Wfell as other jssues, the plaintiff gave in
evidence the note, which is above recited, oil, whicli appeared thC
blank indorsement of the ""defendant. To the admissibility of this
notfe as evidence, the defendant objected, on the grounds, 1st.
Tiiat it was variatit fronfi the. note- described in the declaration,
beingthenotfexDf Wm.Bowfer only, and not the note of Gayle &
Bower. • 2. That the indorsement was variant from that set out
in the declaration, which is there stEfted as the indorsement oi the
\ ■
JUN^E TERM, 1845. ' ^Si»
l^ggfs V. Andrews &-Co.
defendant to the plftukiffsj arid' thev note in evidonceris indorsed in
blank only. - Tiie otjectjon wasiovepruled, and the note admitted
as evidence ta. the jury. In the discUS&ion of tiH3 |ast mentioned
objection,, the counsel for the plaintiffs contended thgt the indorse-
ment in blank was alone sufficient, and also that they had the
right then -to fill up the indorsement, so-, as to direct the payinerft
to be made to the plaintiffs, but did.' not do st>>'or expi-e»s ttieir
determination or'promise, to do it, lantilafter the note'and indorse-
ment had been admitted ''as« evidence ; but during ther trial thay
wrote abov6 the name "of- Biggs the following : "pay the wi.thin
note to the order of E.' L.Andrews & Co." -.',. «,- ' •; -; .-. )
The plaintiffs also read in evidence a notite "of the protest* 6f
the said note, purporting to be from a notaiJy. public ••pt Mobile,
stating that the note, bad 1jcen duly -protested by him on the 1st
day of May^' 1644, and that Qft the same day tie had put notice
thereof ki the post-offirfe, addressed to- the defendant at Sejma,
and also to C aha wba.. Tiiey also introduced' witnesses, who
stated that the defcijdaAt had. resijdo^with'his family in the city of
Mobile," sevetal years prior to the month of May, 1844, and dur-
ing that time had' exercised, tho office of cashier of the Planters'
antl Merchants' .Bank of Mobile ; also, that durii;ig the latter pEwt
of his residence thejtej her had .acted ae a comwissionei'.of said
Bank for winding* up^ its cfOticerh$ ; t^t'^ome time" prior to the
said mo'r\th of Maj', 1844, the defendiwt's fanariiy remay^d to a
•place about- sfx miles ^om the. town 6f Sol nwi, and near the^same
distan,cc from the town of CaJiawba," and that his family had resi^
(led .at the Same pl,ftce since their remevai— the settlement hav-
ing beeft purchased by the defendant some -ye^rs previous to their
removal ; that the defendant at the same tin^e'came up the river
with his family, saying, they would remain at their gettjeihent^in
Dallas county, but that? he was t© return immediately to Mobile
to attend to his bushie^s there ; that ^fterw^rds, and, before the
mopth of May, 1844, he was several times seen'hi Dallas county,
and that he spent a .portior> of -hjs Time ill Mobile ;^ what portion
the witness'could not ^y.'. Th^re was no 'other ovidepce thwi
above stated, that the defendant had ciianged his place of bqsi-
ness, or that his saiH official duties or employments ^n JMobHe.
had terminated) or ceased, prior t(^ the montli of June, 184.4, of
that he was absent from Mobile on oi;' about the .1% M^y. ofihat
year. It ws^s also in evidence that since the last mentioned date,
030 • '' • :> ALABAMA.
Riggs V. Andravrs &t ^.
the ebfendanthacj beea.ki the.ijabit of iTpcefWng letters from find
using the post office at Selma, which, as well as that at 'Gahaw-
ba, were the nearest Qffi<;es to hiin. • There was no other evi-
dence that the de"f(?ndant had xjver. received 'said not<icQ.pf' protest.
:;On this state -of evitlences, the Court instru'cted the jury-, that i(
iklhfe date oF said protests thcAlefendant's family had. established
their residence at' their settlement in Dallas, and the. defend«ant
considered- that place his home,and if the post office at Selma or
Cahawba were the netire^t to said residence, the notioes so sent
as aforesaid were sijfficifent" fo chai|go htm, notwithstanding he
(may havfe spent the gretxtei'.poVtion oK' l^S -titna on business in JVIo-
b!te. . . ^- ' • ' ■ .:• * ■• - ■ '
The' defendant asked the Court to instruct th€;iury,«tbat thougji
the defendant's family, prior to the said protest',, may, have r€sid-
ed at -their said place in Dallasv anil though the satee juay have
been regarded as the family re3idence,/,9nd the defendant ma;y
have made them occasiohai visits, and spent fk portion-.of his time
at the same place, yet if his place of. business and • employnqfent
aforesaid had not terminated in Mobile, but was coTitinued (here
by him until after the said jnonth of M^y, 1844, and the greatei'
portion" of his time spent in Mobile, in tho exercise of his said en>-
ployrtpent until after that time, then the notice^ addressed Iq him ■ ,
by. mail lo'Dalks as aforesaid, ,'Wea-a*ihsufficient to fix his liabili-
ty. This Was refused. • • ... , < • f ^ 't
'- .The defendant excepted to the scvefalTulingsqf the .Court, and
riow assigns the^same as error. . ^ ' . ',
' II. Sa^fold, for thO plaintiff iri error, ipsisted, l.The ^emur-
Fer oaght to*have be^ sustained, inasmuch as-the note sued oa '
was not descHbcd according either 'to itk literal import or itS'le-.
gpl effect, aiS resjjects the makqr or .'makers thereof. {Nat'l^
Bank v, l^ortoni 1 Hill, N/Y. 572 ;-Dickerson v. Valpy, IO-B.n
& C. 12» ; 0 Esp.'lS^ ^4 Dana, 375 ; Sanford .v. Nickels, 4 John.
224 ; l.N. & MeC, 561 > \ MeCord,388- J 8 ^ick.' 603.] , . .
% The demurrer Oi/ght alscfto kave been stsstained, because
tlie declaratittn states tho note as made by certain person's using .
the name and style, of Gaylc &"Boiwqr, without shewing, -what
relation tijey bear to eJach/ otlier generally^ Wr in'.the particular
transaction.'. Nor does the declaration ^hew the christian names
of the makers of the note, or who composed the company.
'•af. The .Court oifgbt to have excluded the »ote from the jury;
K^
JUNE TERM, 1845. ^ ^1
_^— — . — ._ _-
Rigg? V. AnBrewa & Co.
astt}e,one.pff^'ed in .6videDcfe,*in.legal elfecf, was the fiote of
Bower OHJy, aiid'not'lhat ofGayle & Bowpr, ^s ^escribed.
. 4. BecaAJSe the blank indorsement was not filled up when of-
fered in Bvidonqe.. ' ". • ' . . /. " .
,. ^. The.charge" reqticsted by the <jefendant should have been
givenby the Court. - • ' . ■ . *' , . -
--.,•■ V. 'r ■' '*■■'' "' ,••- ^ / :••• .• '• • '
, Edwards, (icMatra. '•> ••. /'* ,.' . - ■ -.*' - ' . *•.. • » ;^
• GOLDT^WAITB, J.-^t'. Th« d^mune^ to the declaration
for the supposed varitlnoe from the indorsp;ncnt on- the writ, jand
the . proposition' to ^exiclade tbs.note fronl the jury,, present, the
same question ; and we. t[iink*' it was pr-aperly decided in the
Court below. 'Whatever may be the authority of 6ne partner to
bind the firm afifer its dissolut^en,. it is oerta'm.he may db so, if
he has an express authorit5jtaJ\^rt f^ tfeat ]f)urpdse, and here the
prima facie iritofidment is,'tna*t*^i*'5^'e declared on and offered
in evidence,' is the noteof Gayje iSt ^ower. The addition after
the signature of " in liquidation;" need not be carried- into the de-'
claration, cfrid if omitted is no variahce. - [Fairchild v. Grand
Gulf Bank, 5 Howard Miss. 597.] Indeed, to the immediate in-
dorsee' suing his 'indorser,- it'iinakcs. no difference whatever,
w^hether the pi'^vibds names' ai*e false or. genuine, as the indorse-
ment is the cause of action, which, when made, is an a'dmis§it)n of
|the g<^n^ineriess of the "previous signatures, {^ree V; IJawkms,
Holt, 55a. j' . . /, .' .*.•.'•/"' .'v,
2. There is nothing in the objection that jlhe. indorsement was
in blank" when the note werrt to the jury ; fhe note vested as com-
pletely by theblankijadorsi&ftient.a&it c6uldby any. other mode,
if tlic plaintiffs were the owners ; and the production of it by
them, indorsed- ih this manner, igi/?r/w<a! /acig evidence ofiheir
ownership. [Chitty on Bills^ 255?'Ghewning v. Gatewood, 5
HQward.Miss.552; 2^tiUer'sLouis. 192.]: •- ••.
3. The charge refused by thQ Coui't, was properly so, beqause
the evidence Was not such ds-is'assumed by the' defendant' as the
basis for his legal propositfons. . Thus.if did not.appearthat^his
place of.businoosiind employment in Mobile, had not terminated
at the maturity of the bjllj or that it was continued, thieUe by iiim
until the month of May ; hor that- the greater .portion 6f' his time
was spent in Motile^ in the exffl-cise of the ^mptoymept in .which
631;^ • ALABAMA.
■ Lewie v. Bradford.
he had beerrengaged'previous to Ihe removal of his famijy. After a •
prima facie CB.$e of removal was made out by the evidence; as wag
in this case, by showing, the i;emoval and settlemehf of the "de-
fendant's family at a diflTerent place froiYilheone where' they for-
merly, had" reeided, it was uiCumbenf on ihe de^ndatit to show
affirmatively, that +118 plac<jfor.the transaction of business was
continued at Mobile, for the. matter we^s peculiarly within his ^
knowledge, and could be made to appear vt^itli certainty and pre-
cision. The Court below Sid not err, therefore, when it refused
achargp based upon evidence which, in our judgment, had no
tendency to prove, that the defendant, after the removal of his
faiarnly, contihue4 ta traHsact his prdiniu-y • Jbusincss in another
place. I >■*.'•■'"•••.•:
; Judgment affirme^.-r' * '* • • * - '^ ' **-* '-•*^«V*- - *• *^- ^ *• •
■-,. _ ».-
X. Where ohe has the money of another in his hands, and uses it, he rannot
a(v«id the payment V)f interest, hy ansWeriq^ that he does not know -what
profit was made by its rise. In such a oase,>he is at least liable for intef-
' est whilst it was so empkiyfed. ** ' ,' i,' ' ' ' *
■• . " »•• * • ' • " / •• ' '•'•' • ■ '•■ '"^ "•..'>>•> •*•
.: "ErrcJr tathejChah'cery Couft of Xalladfe^.' "' ■ .•*"''• ^. ' r "' '
.'• T«fe bill was filed by the plaintiff in «troc, to sell land jointly
owned by the parties>and for an account of profits in a previous
transaction, as partners. The. only question made in this Court,
ariseS out of a •claim 'for the profits, ov use of asum of money bie-
longmg to -the partnership^ which it is alledged the defendant in
error, retained in his hands,- and ased for scleral years. The al-
legation is, '"that not. long after thb purchase of said land,' de-
fendant &cAd. one-of \he tracts for f 1,200, and received the money
-^that defendant j-efbseid^ tp accbuHt to complainant for his pro-
pbrtion of said' nloriey^ for severai' years, and duVihgall that time
JUNE TERM, 1845. 633
-■ ' ■ " ^ ■ — — • 1 — w -y — ■ * ■ . ' ■■
Lewis V. BradibrcL
-. ■ • -r-*- ^ — 1 ■ — ■* I '-
he had the same hired out at interest, or otherwise prafitaWy in-
vested." •• , .. ' j;^ ;.•• .
The pr;\yer of the hiil is for a sale of the r^niaining tracts, and
feu* -an account of thex. moneys received, aad of the profits upon
the use of the money, retained. ' • -
The defendant in his. answer upon this part of the case, admits
the receipt of the money. as alleTdged,^intbe latter partdf 1837 —
"that he cannot positively say, what interest or profit accrued on
sai(^oney, as he Rcptn.o account of the same, considering 4he
same to be deposited ^srith "him,, subject to be drawn from him
when called for." It is also stated,^ t^iat a'suit was depending
against him for the land, of wJiich tbie "money was the proceeds, -
and whicti he paid ov^ as soon as the suit was determined. . • .
The Ghancelloin'nhis decree, refbsed to" I'equire the defendant
to account for the profits, considering bis answer to amount to a
substantial denial that any. profits Were made, and th^re being no.
proof that such was the fact.
■ From this decree this writ 6fefrorjs prosecuted.. . .
L. E. Par^t^nS, for praintiffin-error/ contended that the matter
■Vfas" within tbie larowlodge of the' deffendant, and his Qmission,to
deny it, \^as an admission of the fact.; [2- Bibb, 67; 3 Monroe,
18.7 ; 3- Litt. 57 ; 1 'J. J. M-'siS; 4- Id. 87.].
•-. The pailics did not go" to trial on_ bill' and- answer by con-
sent, and therefore the answor is not proofc [5 Ala: R^ep; 60 ; 5
Id'.32'4.}' . - ' • . . ; ■ ■
.A partnci*, using the partnership funds for his own private pur-
poses,' must account, cither for tUe profits made; or at least pay
interest.- [1 John:C. 46(r> l.P. Will. 140; !& Vesey 218 ; 5,Id. .
539r.l7ld.-29$j 7.eoy/. ll.j'f V. •. -; ; • « . '
• •■ -.x, ■ * ■•'.•-• .•-''■ -^ « ' . • :
•W: P.*0HlLTON,COntfa%'". '*•/>-• I' •• ■ ' . •
J^. , ..••.*•■•■ • •' ■
ORMOND, J. — The siflgle^estioft presented upon the record
is, wherther the defendant is liajale forinterest for the partnership
funds whilst "he retained them, in his hands. , The allegation is,-
that the defendant retained the money .ill bis hands for several '
years, during wbick' it was put out at interest, or otherwise, pro^
fitably invested. This is impliedly admitted in the answer of (he
defendant, who does not deny that th6 money was employed by
80
634 * 'AUABAMAV
liewis V. Bradford.
him, but says, "that he cannot positively say what interest, or
profit accrued on said money, as he. -kept no account of the same,
considering the san^e to be deposited with him, sObject to 'be
drawn from h|m wheii^called for." • I^ also- insists, that the title
to the land, the proceeds of the sale ofysfhich was in 6is hands,
was in dispute, and that "be retained th^ money to answer that de-
n>and, if the suit should be djo'cidedagaihst the firm.
. In the case of X. &;-.J/ Kirkman v. V^jnlief,? Ala. Rep. 230, the
question of the liability ot ppe lor interest, retaining in his hands
the -money of another, is^d/scussed at lengjh,.and many authorities
cjted ; we- shall not therefore enter upon th^ examination of the
•question furthcj*, than to state J,he ge»er-al proposition, that where
oge receives interest froih the money of gnothei", or derives a^
advantage from, its use, ^e shall pay interest .to the owmor. It is
probable, that under the circumstances of this case, and from the
trust and confidence reposed by each of the parties in the othtr,
the complainant would have had a right' to th^ profits made by
an investment of his money, but as it does not appeal- what the
profits were, he has at least a clear right to interest, whilst it was
in the defendant's h?mds, if used' by himj which, as already stated,
the .answer by strong implicatioil,- -if not in direct terms,' admits.
If, as stated by the<^hancelloiv the defendant had the right 'to
retain the n'loney, pending the litigation about the title to the land,
to exonerate him frbn; the payment of interest, -it w«s his duty to
show, that^e kept the money pn hand, ready to meet the exigen-
cy, and that he "did not use "Ot employ it, .or place it out at inter-'
est. But so far is this from bei^ the case, that he admits he did
i!fee it, but thathe' cannot say what-profit iie made t)n it, as he
iept no Sjccount of it. . It being therefore clear that Jie did use
the money of complainant, jind ht declining to state , the profit
which was actually made by its employment, he must Recount
yvith the plaintiflT for interest, during tlie.-tlmO it was in his hands.
- Thie'decree of the Chancellor as it regards this matter is there-
fore reversed, and tbe cause renianded fpr an acconjit,in conform-
ity with the principles here laiddo^. . ' ••. ' ♦ * ■-., •'-
■ .' ^ .• ^^ *^: :.■..'.■■
JUNE TERM, 1845. 63!
Amistrong v. Taif "
ARMSTRONG V. l^AIT! - • ..
. •
1. The defendant, by promise in writing, undertook to pay the plaintiff a de-
finite sum of rtioney on a certain day in shuoks; shortly after the maturity
of the note, the plaintiff dema,n^ed the shucks at the defendant's residence,;
the latter had about one. load ready, which he offered to deliver, remarking
to ihe plaintiff that he might haul them.off, and tlie residue should be Btr'ip-
ped from the corn as fast agjip could take tl{em away; it was shown tli?it
the defendantjiad more shucks on his com than .wejje sufficient to pay the
note, and that the plaintiff insisted on having all delivered' at one time,' at
a poiiit designated by him, within a. few few feet of the defendant's corn
cribs," and witlim forty Of fifty yar&s of houses contairifng a large quantity of
cotton seed and fod(Jer ; upon being asked by^e defendant'why he wished
the shucks' delivered at t^Kat place, the plaintflf Remarked, to bum, sell, or
do whatever he thought proper witlr them : Held, tliat the readiness of the
defendant to perform^liis contract, and the offer to deliver the shucks when-
.evertheplaintiffwpuld remove theui/.^Vas a "good defence < to an action
brought for a treachpf-iheundeita-kingcdhtaifl^. in tlie writing,
% Where tlie Court having charged the jury, upqn tlie la\y^ as applicable to
the evidence E^duced, at the .request of tiie defendant's cqjansel, and upon
ah inquiry by die jury, ii^mafked, tji&t the .plaintiff w«uld not lose his right
toTecover in anotlier action, though thJirverdict mighi, be for tlie defend-
ant"; the remark of the Court, whether in conformity to law br not, furnish-
es qb^bund for the reversal of Che judgment. It ct)uld ftot haVe misled
k the jjiry, and they doubtless soughfthe information itierely to retoncile
tieir consciences to tlie performance of a,n impei;ative l^al dpty.
Writof Error to the County Court of Dallas. : • . j
This v^as an ac^tiori of assurppsit fitthe suit of tho plaintiff in
error, upon a writing subscribed by thc'defendant, of the follow*
ing tenor, viz : "$60 in shucks. , On \he first day of January next
I promise to pay Thomas Armstrong, sixty dollars, to be paid in
corn shucli^, this 18th Deoember, 1843." The declaration, al-
ledgesa failure to "deliver the shucks, upon a demand duly madef,
at the defendant's house, by the plaintiff: aijd to this the defendant
pleaded a:. tender of shucks equal-in value to the amount of the
note declared on,.at his- (defendant's) residence -in the county of
Dallas, upon ^ demand there made by the plaintiff;* but the lat-
Gm * ALABAMA.'
'Armstrong v. Tait.
ter refused to accept them : further, th^i the shucks are. now
there, ready for delivery, and have beeu eVar since . the tender,
&c. This plea was adjudged good on demurrer, an issue join- .
ed thereupon, atid the cause sulMnitted to a jury, vvho'returncd a
a verdict for the defendant, and judgment was rendered accotd-
ingly. , • •_ .••.'. • , :
From a bill of exception's, sealed at the insttoae-of the pkintiffj" ••
it .appears, that when ,the note became due, or ashoyt time there-
after, he went to the defendant's residence,, and demanded^lhe
shucks ; the defendant then had about one load ready for deliv-
ery, which he offered'to the, plaintiff, renla"rkirig that he could haul
the^e off^^nd he (dt^fendant) would have them stripped from the
corn as fast as he could haul them,- It was fehown that the de-
fepdant had more shucks on his corn than was sttfficient to pay
the note. To this the plaintiff objected, and insisted on having
all delivered at once, at a place designated by him, within ten or
twelve feet of two cribs of corn, containing about two thousand •
bushels, and within forty yards of a barn' containing cotton seed,
and fifty, yards of a stable; in which was packed thirty stacks of
fodder. The defendant inquired of the;plaintiffwhat he' proposed
to do with the shucks at that point, and was apswercd, bum, sell,
or do whatever he thought proper with' them. There was no
other proof, of a tencler or rfeadiness to (deliver the shucks.
The Court charged the jury, that the f^cts above recited were
snfficicnt to sustain the defendant's plea ; that it was immaterial
whether the defendant kept on hand. and W&s ready- to deliver
up to the time this suit was commenced, the sanie shucks which
he had tendered ; that-if he had on htind other shucks of equal va-'
lue with the note, that was enough, whet&er they were stripped
off the corn or not. Further, if, when-lhe plaintiff demanded the • ,
shucks,, the defendant had one load ready, told the plaintiff to take
them away, and the ifemainder' should be -in readiness for him as
fest as he could haul th6m, this was sufficient tc? sustain the plea '
of tender, that it was not necessary that all the shucks should jiave-
been ready for delivery at the same time, when the demand was •
made , provided he had enough to pay the note, on hi^ corn.
The Court also charged thejtjryjat.the reque^ of the defend-
ant's counsel, and upon an inquiry by the juyy, that the plaintiff
would not Jose his right ta recover the shucks^ though the verdict "
might be for the defendant.' Other charges were given aod, re-
JUNf: TERM, J845. 637
Armstrong v. Tait
fused, but they present nothing mpre than the ]egal questioos
raised upcm thq instructions aboVe stated'. • ,^». ■ r* ■ .■ Vw,-
'■ C. G. EDWAfiDSy for the plaintiffin. error, made the following
points : 1. There was no tender; to make it complete, the shucks
should have beenin^ deliverable state. [2 Saund. on Plead. &
Ev. 840 ; 6 Taunt. Rep. 3S6 ; 2 Stark. Ev. 780'.] • 2. The ven-
dee is not bound to acc'ept a part, and tkke the vendor's promise
to deliver the remainder. "3. "The shucks were nd.t ready \o be
delivered until they .were aptually stripped from the com. [6
Taunt. Rep. supra; 7 Greenl.' Rep. 91 ;;6 Pick. Rep. 356. J 4.
The remark of the Court to the jury, that if the plaintifl^/ailed in
the action, he could recover the shucks in another swit, w^s incor-
rect, and calculated to mislead them. ' .* •• : . • '»
• G. W. Gatle, foi- the defendant. - 'If the plaintiff.had not called
upon -the defendant and made" a demand, it may have been ne-
cessary for the latter to'llaVe informed him of his readiness to
delivei' ; bat he'this as it may, the defendant need not have prov-
ed his readiuissig at all times. [L Stew. Rep. 272.]- 2. A deliv-
ery at the defendant's hou^e Would ha-Ve been, a- compliance with
the contract: [1 Wash. Rep. 326",-'Minor's Rep. 412.] • 3. The
offer to have the shucks stripped from the corn anti deliver them
as fast as they coul4 b^ hauled o% t\»as a- sufficient' compliancy
with the contract.''. [7 Porter's R,ep.^20.] 4. A tender of fepcr.'
cific articles need. not be ple&ded with aprofsrt in curiam. *»^1
Johns. Rep. 65.]- ' - . ' - •- • ♦
5. The refusal to delivei^ all the shucks at a point heai\ the de-
fendant's corn cribs, cannot in any- manner affect the tender; such
a requisition was unreasonable, could not benefit the plaintiff, and
might put the defendant to great inconvenienae, .and -subject him
to the danger of'loss. from fire. '...■•• .• '
-/ . • ■
Collier, C. J.— Upon a mere inspection of the writing de-
clared On, we should not. have sijp'posed it to evidence a promise
seriously made, and intended to be enforged, by -the delivery of
the specific article undertakeA to be paid. But the contract, as
presented on the record is -certainly legal, and- the eaniestness
with Which the matter Was litigated below, very, conclusively
shoWs that the controversy is reaf. ' • '■
698 ALABAMA.
— . -j^ " : rf :
AiTOstrong v. TaiJ.
. drhe cjuesitioii to to consid^ved is,, whether -tlie facts proved
show a tender, or such a readiness to perform on the part of the
defendant, as to furnish an answer to the action. It must be
. conceded, th^t the decisions do not-entirely agree upon thepoint
as to the manner-'in which ^ contract to pay in» specific articles
may;be discharged, or the perfermance excused, where a pay-
ment is.not made, in fact. In some of the cases, it -has been held,
that in order to mals.e a good tender, thie articles must be set apart
and desigoated, so as lo enable th'e creditor to distinguish them
from others of .the same kind, and that the .property so tendered
vests in. the creditor, and is §t his risk. [Smith v. Loomis, 7
Conii. R#.p. 110; Wilt, et al. \\Qgden, •'13 'Johns. Jlep. 56;
Barnes V, Graham;. 4 Cow. Rep>» .-452 ; See also, Robinson v.
Batohelder, 4 New. Hamp. Repl 40.J - • - « " . • .
In'Lane v. Kirkman, [Minor's Rep. '4ri,J it- was jsaid,. " that in
eontl^actsforthe payment of specific articles,' tvhere no place of
delivery 'is mentioned, the residence of the ,debtoi', by legal con"-,
struction, is tinderstood to' be-t-be-^pfedfe." -And in Thaxton v.
■Edwards, [1 Stew. Rep. 524,]-it was held, that it was a good de-
fence, td a. note for the paymerrt of specific articles,! that the^ de-
fendant Was ready, able and willing. to deliver them at the .ap-
pointed itime, and that the plaintiff did not make a demaiid. In'
Garrard v. Zacliariah,- [.I Stew* Rep. 272] after the maturity of a
4ebt,.it was agreed that the debtor should buy and deliver to the
payee specific articles in satisfaction.; accordingly; the articles
were purchased, but -the payeft refused to reseivc^ them-t heldi-
■ that it was not necessary to aver that the defendant stili had them
ready to-delifrei: ; .that. "'The -rules which apply to ,a tender
of money, ought .pert to govern a Render of specific articles. • Mo-
ney cian, be kept .without expense^- and "vyith little coortp^rative
risk:* • ^i'^wAer, that the party who . undertakes to pay a debt
in suoh property, if he has it reXdy on the day,,hef is not bound to
keep it for an.indfefinite time ready to deliver t<> the payee on de-
mand,nor-is it nfecfissary that' he" should abandon ij;m order to
be discharged- from. a performance. ' But the 'Court* said 'it may
}fe, that if tn? debtor qonyerts the property to. 'his own use he
would be liaWe in an action pf frote7\',Cohh v. Reed,*2 -^tew,
Rep. 444, cites and recognizdis the cases of •panev. Rirkmarv-,'
and T-haxton y. Edwa^;ds— 5Mpra. ^•. '* -. . ,• -■
JUNE TERM, 1845. 639
— ■> — ■ '-^ '■ ■= — '■ '■ ' — 7-^
Armstrong V. Tail
. Where -a paiiy undeijtook to deliver plank o^ demand, we
t;eld,that to,saS^oct him to an action he must be put in default
by making a demand'; " for it cannot be expected that one shall
alwajis havt; a p(Thderous,articte ready; to be deliTered, until
some time is' ascertained, either b'y the consent of thfc parties, or
by notice gim-n." • [McMurray v. T4ie St^te, 6' A>a. Re^x 324.],
In Young v. -Foster, !7 'Porter's Rej[^. 420, thfe defendant sold to
the plaintiff seven hundred bushjiis of Corn', wh1ch.be lyader-
took to deliver in the plaintiff 's b6at at an 'appoii\ted- time, or
sooner if he .dpsired it. The defendant, upon thederfiand being
made, refused to delivqr- a part,- becausie the beat could- riot qai^y
all the corn at one tiload.. Bub we held, tbat if the qaantit}*- of
corn was too large to •be received at one time, according to the
ordinary mode of trarisportatiT)o,,the Isfw of the conti'act is, that k
refusal to deliver' any .part- of it, tecausc all could not be taken,
in. tlie boat, was not justifiable»' That ih "a contract for the
purchafso unci ddlivory of such a ponderous article as com, , the
parties must be presugnbd to -have "contracted in reference to the
nedessit/of the'cai^e, 'and to' th,e habits and means of transporta-
tion comtpon in the country ;" and„th(i law in this respect, Is the
same, whether >the delivery was to be mad® on a day certain,- or
on demand. •' . .■ -' ',•• .' -> V- - ' • •
The. cases cited from the decisions of this Court, under its pre-
scHt and earlier organization, fui'nlshj principles fov-the adjudica-^.
tion* of that now befor-e uis. As \o this pl^pe of the demand,' that
is coticeded to be the residence of the debtor, but it is irisisted that
the tender made w£ts not sufflcrent to jirevent tm promise Jo pj^y
in specific articles^ from Ijecoijiing* an -Absolute engagement -to
pay the arhount in morley, • * •' • *. ■ ■
If the plaintiff was not bpund to- rcrmov.e/aU the shi^cks attfte
satrie time, he could not msist upon their delivery -sooner than he
was able to remove them. . No reasonable purpose would have
been subserved by the defendant's delivering all at once, and at
the poin^t designated by ihe plaintiff? whilst it might have been
exceedingly inconvenient for the (defendant, and hazardous to the
safety of his property, by depositirfg such a large amount ©f com-
bustible material in a situation so much expqsed. Nor waS it
necessary that a Sufficiency of the shucks," to dischai'ge the debt,
should have been stripped from the 8t>rn to make -the defendant's
640 ALABAMA. .
Armstrong V. Ta;it.
j*eaJmess 6t tender complete. 'They were, while on itjie corn,
in a situation quite as favorable to their presefvajion as 'any
other, and it was entirely fJermissible for them to- be kept there
until the phmtifF was prepared to hauUhem off. ,
True, the -defendant might • have offered "fo • deliver all at the
same time, ^nd abandoned ^tjem to the^plaintiffj and if they had
been lost or destroyed without the speci&l interference of the de-
fendant, he 'Would have been absolved from his contract. Yet
the defendant was not boUrid thus to set ap^rt and abandon the
article to- the f)laintifl; it was enough (as we have seen) that he
was ready and actually offered to perform; . .
,Orie oftbe cases cited, shows, that having been rea'dy and wil-
ling to deliver tha shucks, ^t the time appointed, the defendant
w^g hot obliged to retain the sacne .' article V for that might be
exceedingly inconvenient, and impose a. bufden' be^cmd all tie-
nefit derivable from the contract.
The remark of the Court to the jury^ that tif the plaintiff failed
in the present suit, that he might recover the article in another
aptron, whether true or not, could nc>t -have misled the jury," oi:
have induced them to do- any thing ^more than duty required.
The jury, doubtless, felt constrained "by the evidence,^©- return a
verdict for the defendant, and to reconcile them^to the perform-
ance pf a duty which seemed tt> have been hard upon th^ plain-
tiff, they made the inquiry of the Court. . The instruction upon .
this point was express^dfin such te^ms that it could not be inferr?
ed that the'Court laid any Jiajticular Stress on it, or that the right"
of the plaintiff to recover in aC l(uture attioji" should incline ^^hem
to find for the defendant. ,■> ^ "•..,. • ■ • • .
Our conclusion is, that the judgment of the County Court must
be^aflirmed. .- •,. ,'. ■ • * i.^ ..•' ' ... .•
:-^v .^f-.;,'; -fv-V •'•■._. » .'.• , ■ r :': **
■; JUNE TERM, 1845. ^l
__ — ; t , ' ' -
Hendricks, el vacy. ChiltoA, et aL • * .
■ . .. ./ " . . * > . :
».
HENDRICKS, ET UX. v. .CHILTON, BT ^L.
1. Where a, credijfor hs^s catised'a levy to Ire made on, property, which, after
the'tevy, is claiiued bya third person, and then the Same property is again
levied on by another creditor, ag belonging to tiie claimant, and after this
the claimant coll usively dismisses hi^ claim ; theSe circumstances will not
invest a court of equity with jurisdiction of a suit by one creditor against
the other, to dcterrnine which of their, debtors.hsls the right , of . property.
QVcrfr— whether a court' qf IeO is not competent to dirfect an issue in the
'nature of a claim suit, to determine the (juestion, of to poatect its'officerby
enlarging the time for his return. ' •' - '
!4ppe*al from theQourt'bfChancesry for the 3§th, District.
" ' '' "^
■ TifE Case made by ^6 bill/: indfependent of mucih extraneous
matterj is tiiis :■'•'- • • ' • . '
Peletiah Chilton, 'Rczin R. Chilton ai)d Asahel Chilton were,
ili(3iebted to JuKa Harding, who has since intermarried with Hen-
dricks, wjien a minbr, by several notes. Attachments opoh these
notes were sued oht in the name of one Parke, the guardian of
Miss Hardin_g, and levied on' certain "slaves and other effects^
which are charged to be the property of,R. R. Chilton. About
1»he same trme, as the bill states^ Calvin' an^ Fr&nklin Morgah,
partners, un^er the firm of 0. Morgan &c Son^ having a judgment
aigainst Peletiah Chilton, -^sahel Chilton "apd Others, caused an
executionto "be issued arid levied on the^same slaves, as the pro-
perty of Peletiah Chilto^. Rezin'R. Chilton,' immediately after
thelevy instituted a cla^m, iirlder the statute, wlMch he subsequent-
ly dismissed. -■''••, ' •' ' '
All the Chijtons ard changed to be insolvent, and-iti^ajledge^
that if C Morgan & Son are permitted to sell the property levied
on "to satisfy their debt', nothing will remain «to satisfy that of
tlie complainant. It is ak'o ' charged, that Pclc<;i&h Chilton has.
no interest in the propci'ty levied on, and that the withdrawal of
the claim interposed by R. Rs Chilton, was fraudulent and collA-.
sive. ' ■ , - ." ^ ;, ■ , ' ; ' ■ .
The Chihons, C, Morgan &SjO^,and Robert S. Porter, sheriff
of Benton county, dre made defendants to the bill, and its prayer
81
jp42 ALABAMA.
— . — _ — . ^^ — _^^
Hendricks, et ux. v. Chiljcto, et al;
that Morgan & Son, as' well as Porter, as sheriff, may beei?join-
ed and restrained from selling the slaves, &q. under their execu-
tion, until the final hearing ; ^d that if necessary an account
may be taken, and the property sold, to satisfy th§ debt ;of the
complainant. ',' ■/ . . . • • '..'•',
The bill is filed all the.namd of Julia Harding, suing by her
guardian Nath'l Pal'Ite, but she having afterwaj'ds intermTirried
with Hendricks, he was made ^par^y, oo motion. An injunction
ivas awarded, and aitervvaras, thle principal defendants answered
the bill- TheChiltons admit ttie' existe^jce of the debt, and the,
suing out tHe attachment as stated by thQ bill, "but insist it was
improperly sued v<iu,t, for redtsons which it is unnecessary to state
here. They declare that the execution, of C. Morgan- & Son
was levied before the attachment wafe;, sued outv They assert
•that though Ri R. Chilton was invested ,wi^ the legal titie to the
slaves, it was in consequence of a bill of sale executed by Pele-
tiah Chilton to him for a nominal considerittion only, and that
the possession was never relinquished by- the latter. Tha^ the
apparent sale was induce.d sfrom the circumstance tl^at iPeletiah
Chilton received the slaves with his wife, they having befen be-
queathed to her by her father, and feared difficulty, if she should
•die childless, from the other children of her father. • They also
assert that the debt tq C.;Morgali & Spn, was contracted by Pe-
letiah in 1833 or 1834, previous to the execution of' the bill of
sale, and thereupon R.<R.. Chiltbn Xvithdrew the ;claim interposed
by him, being advised it would convey no rights against a cf^
"ditor. They therefore anawer th^t the slaves, ' &c*n are the pro-
perty jof Pel etiah Chilton, and deny aJl fraud and cpllusion.
The answer of Morgan &Son alledges ignorance of ail mat-
- tecs connected with 'the, case, except, so fe.r as connected with
their own judgments, and call for proof of the indebtedness, upon
which the attachments of the compjiainant are levied. „'■■'■
They alledgS their debt was contracted- by Pqlehah aijd Asa-
hel Chilton in, 1833, but renewed, and new not^s taken afterwards,
up9n which judgments were obtained against them and MosesL:
Barr and Hugh L. Givens. .. • ,
. 'They state their inforniation E^nd belief, that the sale pretemj-
ed to have been made by Peleliah to Rezin Chilton of the slaves,
was fraudulent and collusive,, ahd insist on their fight to'hav.e sa-
tisfaction of their judgments. ■ .
JUNE TERM, 1&45. 643
Hendricks, et «x/ V. Ch\lton, «t.al.
: : : : 1 . J ; ^ — r—
' All the defemlants who answer, pray the benefit of a demurrer,
because the bill contains no equityj and because the ooinplainant
has adequate relief at larw. ' •
The onlyevidfefice in the cause is. t^e' examination of two wit-
nesses on the part-.pf the complainant. One of them testifies that
he was present when Peletiah .Chilto'n, in the year I8j36, sold
certain "of the slaves, whieh a^'e the. subject of this suit, to Rezin
R., and conveyed them to him- *for. the consideration of 'three
thousand dollars. From thence up to the levy of the Morgan &.
Son execution, .they werfe Jinown'as the property of Rezin R.
and acknowledged so by both of the parties. ' The witness did
liot knov^ what consideration was abtbally paid, but has heard
Peletiah acknowledge that he received' three thousand dollars
from R-ezin R. for the purchase. He was present and witness-
ed the contract, of sale. * . '
•The other witness knew nothing' »f;his own knowledge ©f the
sale, but has bfleh'heard both Peletiah and Rezin R. adroit the
former had sold the slaves to the latter. ' Since 1838 the witness
always • understood they were -the property of Rezin R. .He
considered l^eletiah gOod for his debts at the time of the convey-
ance,, and fof, the property conveyed.
• The cauSe was heard before the Chancellor, upon bill, answers
and proofe,and!an' the demurrer to- the bpl i.^and he.'dismissed thfe
bill • uponthe demurrer,.on the ground that as the complainant had
not established her demand at law, she was jiot entitled to pro-
ceed in a" ciajjrt. of equity. From this decree th^ complainant
appeal^ and here assigns that it is erroneous". • , j
S. Fi RfcF., fop the appellant, argued, "
1. The jurisciiction of - chancery, in this .case^ resis on the
principle uponwhich it interferes .to prevent irreparable injury,
asin oases of wlaste. [Pharr y. Reynolds, 3 Alabama Reports,
521 ; Porter v. Spencer, 2 Johnson's Ch. 169.]' The fraudu-
lent collusion between Morgan & Son and R. R. Chilton, by
which the latter abandoned his claim to the property, and thus
subjected it to sale, is a mattet" of equitable jurisdiction. [Scott
v. McMillan, 1 Litt. 302.J
2. The answers admit- the claims against the Chiltons and the
levies under the execution of Morgan & Son. In avoidance of •
these admissions, it is asserted that the property in 1833 of 1834,
644 . ALABAMA,
Hendricks, el ux*. vX)liiltoit, et al.
belonged -ta Peletiah, and that the d^bt was then .contracted, pre''
vious to the conveyance ofthd skves to Rezi« R. • The ntatter
•of avoidance is not proved. ' •. .
3. The answer .of Morgan &. Son, admits that the debt con-
tracted by Peletiah in 1833i wa& given i>p, and other security
taken from him, long after the' sale 'to Rezin R. Taking. this se^
curity was a discharge of the old dgbt, even if that had been
proved: [Minor, 299, 312 ;.,1 Stew. 3^4, 372 5 10 Wheat. 333;
2 Stew. 49a; 2 P9rteiv280, 401.].. '• ' " . 1 • ,^ . >
W. P. tlHiLT^oN, conff a, insisted, • " . ' ;
» 1. That the decree was* proper upon-the ground assumed t>y
the Chancellor, to-wit,.thSit the complainant had no right to go in-
to .equity until she had exhausted h^r legal rei^iedles.' [Morgan
V. Crabb, 3 Porter, 470 ; Miller v. Thompson, lb, 196 ; 2 Leigh,
843 ; lb. 299^; 2 John. C. f28S ; 1 Paige, 305 ; I'.M.bni'oe, 106 ;
1 Paine, 525; 1 Humphries, 85-; 4»Johns. C, '671 ; 20 Johns.
554Y.3 Paige, 320 ; T Litt. 302 ;sl McCord <:^..410 ;- 2 J. 0^.
M.SOl ; 1 Dev. Eq. 537; 1 Hi4297,^3Ql ; 10 Y/srg<-310; Ro-
per v. Copk, Ala. Rep. Jan.Term, 1845.]' • /• '^^ •
2. But if there is equity in the bill, the decree" dismissing the
bill is proper, as it was heard on ,the proofe, &;c. as Well as the
demum-er. [8 Gill & J: 93'; 2 Slew. 146 ;^Letiox v. Peai'I, 3
Wheat.' 527 ; 2 H., & J. 304,. 328.] The .answers are strictly
responsive to the bill, and deny all its equity, besides calling for
proof of the indebtedness on which the complainaht founds, her
• right to stop the progrpss of the execution ofC. MorgarT^fc Son.
The complainant asserts the title of the slaves is in Rezin R ;
this is denied ; and there 'rs no evidetice of it^ as the" witnesses on-
ly speak of the declarations of the parties. [Pope y.Hendon,^5
Ala.. Rep. 433.]' ^he declarations .are in no- ••way: connected
with the possession, and therefore is no part of the res gestae.
[2 Ala. Repv 526;] - * .-'.;. • ,.
• 3. The evidence of the. witnesses exanijned, is fidt sufficient to
establish asale of^hfi slavesj-so as to- defeat the execution of
Morgan &. Son. The salcis positively denied by the answers,
and no consideration is shown to be paid, either by the witnesses
or any other proof. The omission to support the title, nndfer such
. circumstances, . is conclusive." The rights 'of creditors would
fjtand on flimsy foundations, if they could be defeated by the idle
JUNEvTER>t;i845, 6^5
■ Hendricks,. et ux: v. CKiltx)n, et al.
as well as th6^alse declarations of the^iebtor. Besides this,. the
answers of the Chiltons arc evidence for Morgan & Soq. [Mills
v.G}ore,JiOPick.'2^.] '
' GQLDTHWAITE, Ji-^Weare not satisfied that the decree
dismissing, the bill can be sHStained,- upon- the ground' assumed
by the Chancellor.; for, as it seems -to- u§, the lien created
by the.levy of an attachment, is not materially different from
that which is the result of the levy of ah execution ; but we shall
not examine this point of the, case, as there is a reason entirdy
decisive, which equally sustains the decree. ' , .
It is not pl-etcnded here that the Complainant is pursuing a mere
equitable right ; on the contrary, -ii is apparenfthe ''aid of equity
is soifght to\pfotect and advance «a clairH, ^t^ich is. purely legal.
The real contest is between the complainant and Morgan & Son;
she claiming tQ subject the .slave's in controversy to the paymeYit
of her debt, as the- property of oije -of the Chiltons; and ihgy
seeking satisfaction out of the same slaves, as belonging to another
perlbn of the safHienamc. » ■^^ '
It is evident therefore, if the comavon law has provided an ad-
equate remedy fof the complainant, under the circuipstances dis^
closed, she is entitled to no aid from a Court of Equity. . • -
. By the .Ordinary- 'Course, of ' the conynon law, all questions^of
the nature of that 'involved in this case, were determined in a suit
against the sheriff, who ie vies. j^n executioaor other process, or
omits to do, so at bis o\vn periL Not. that this officer will not
bb protected by the Courts of Jaw, when a reasonable doubt ex-
ists, or -that he will be permitted to exei'cise his duties vexatiously
or capriciously. .'Ordinarily the officer -exeroises his best judg-
men)^ and .protects him$c5lf by taking a bond to indemnify himself
from the consequences of an improper levy, or from the thccon?
sequences ofrefusingto levy. Bi^itifthe parties themselves re-
fuse to execute a proper or sufficient indemnity, the Courts, in. a
proper case, wili enlarge the time- foi; rhaking the rfeturn, and thus
effectually protect their officer; With ■ Us, .the whode rnatter is •
h> sonle degree regulated by -statute, as^onthc one hapd, the -she-
riff, in a case of doubt, is authorized to require an indenjnit,^ from
the party directing the levy to be made, (Clay's Dig. 210, § 50i)
while on the^ other, he is prevented from doing any rnatGrial inju- .
ry to a thifd person, by makmg an improper levy, by fhe enact-
646 ' ." ALABAMA,
_ — . y__
Hendricks, ^t ux.' v. Chilton^ "et al.
ments which authorize the interposition of ^ claim silit, at the in-
stance of him whose property i^ seized. : * :-.. •
The case made by the bill assumes, that the sheriff has return-
ed a Uvy on ?ach of the processes in his hands, dnd under such
a state of fact,nt may be questicMiable whethfer either party* is nqf.
entitled .to sue Wm tin his retOrn. • But to put the difficulty iH its
strongest possiblQ light, we will suppose, that the claim interposed
by It*. R. Chiltbn to the property^ when levied" on- as belonging to
Peletiah, was difemissed, with th6 intention to give Morgan &
Son an undue preference, and that the sheriff and his o^rcial sure-
ties were insolvent, so 'that no •remedy co"uld be had ag'ainst him,
orthem, of an effectual char^icter, /or his refusal to levy the at-
tachment at the suit of the complainant.;'still we think the concur-
rence of all those' cireunh&tances would have no effect to- iaVfst a
Court of Equity with jurisdiction to determitie the legal question,
wiiether the property belonged to the one, or the other of the
Chiltons. "*.,•• . • '■
• Nor would the party be without a renfied,y,'unless tKe "arriv^'flt
the conclusion that a Court of Law is inefficient to. pi'oteet its
owji suitors, from the misconduct of its own officers. We have
already indicated, that if it was necessary to protect the officer,
that the time for returning -the process could be'enlarged, and on
the other hand, we think, if it should become necpssary to pro-
tect the parties, it could be done by an inquij^-y with respect to the
appropriations of the money*, if the property was levied on and
sold, under both, or perhaps either process ;. or .u|)on ^proper re-
presentation and proof, that the officer was improperly . or qapi'i-
ciogsly exercising his powers to the prejudice of either .party> it
possibly wotild be proper fpr the Court to> interpose, and direct an
issue between them, in the nature' of a claim suit. . * ' '• -
We suggest these oonsidefations^ not intending to- determine
the course'to be pursued, but to show that the \vhole jnatter is
wkhinthecontrol of the Court of Law^ and that Equity has no ju-
risdiction. ' - .
' The decree disraissingthe bill is affirmed, but without prejudice
to any proceedings whiqh the complainant may-b^ advised to
undertake, df .any can ^e effectuaL in the condition the casei
pow ijB. Y:' ', ,; ' ■■ ••* .,,.' r .-.■•• ■ i. \ , . > ■ ■-:. •-,. / "
JU^T. TEUM,,1845. 647
Peake v. .Stout, In'goldsl?y & Co.
' ' PpAKEv. STOU'f, INGOLDSBY & Co; . . "
1. A witness cannot be asked, what were the,"motive9 ajid intentions" of
another persoij in executing a deed. . • •
2. Where one pai:tnerliad been introduced as a witness to support a deeddf
assignmentj conveying tlie partnership propfertyj and had sworn that the
deed was fairly^made, and for the jJayment of the partnership debts, he
may be asked on the cross-examination, whether one of -the. debts provid-
ed for in the deed, \^as not a jlebt created by himself, for the purpose of
♦raising money to put uito the partnetshi|). " . •'.'■' ^ . -
.Errer to the Circuit Court of Dallas. •
• . . ■ - ' ' . ' • . '
Triai, oflhe right of property, wpon'a claim interposed by the
plaintiff in error, as trustee in a deed of assignnrient executed by
Bissell &-Carvill, an execution at the instance of the defendants
in eri'or, having been jievied upon sonfie of the property conveyed
m the deed. ,. . • . ^
tJpbn»thc trial, the claimant offered as a witness Titus L. Bfs-
sel, one of the makers of thc'deed, who deposed tha,t the debts sb-
cu'red by the- deed wei'e-patlnership debts— that in mabing the
assigrinnent- and iil all' the transactions connected with it^ he, acted
in good ^^ith, and wilhfout any inte^it to hinder, injure ot defr'ay'd,
the auditors of the firm, but to provide for their payment. The
cjaimdnt's c6unsel; theri. proposed to -question" the'^yitness, as to
his knowledge ofthe.ijiotiv^s find intentions of Geo. W. Carvill,
his partner, in making the deed,' to which the plaintiff objected,
and his pbjeciion;was sustained by the Court, and the claimant
excepted. ^- " • '
On the' plaintiff's cross-examination of the witness, to prove
fraud, he proposed to pfoveby him, that at the tirtie, and, before
the partnership of Bissell v& Carvill was contracted, it was ag-re^d
b.etween them,. that Carvill should raise $3,000 on his owacredit
to" be used, in the partnership concern, and that this dfcbt in favor,
of George G. jCarvill, was provided' for in the deed, 9'nd rncluded
as a firm debt ofBissell'& Carvill, but was the separate debt of
Geo. W. .Carvill 'to this the claimant's counsel objected, upon
648 '. ^ ALABAMA.
Peakev. &fout, Ingoldgb3r&-Co.
the ground that it was irrelevant. testimony — that it wc^jld coh-
trahdlctarid vary the express terms of the deed, and that the wit-
ness was incompetent so to testify; but the Court overruled the
objection, and fcquired.tlie witness t'o-'testify, to- which.the claim-
ant excepted, tind which he now assigns as error. . .
R.S AFFOLD, for plaintifTin erroi'* The vvitness was r^ofaslied
for his opinions, or inferences of* the J.ntentions of his c6-partner»
biitforhis knowledge of facts. Tl^e' case is clearly'distinguish-
able from thd case relied on of 'Boi;laod against thq P. & M. Bank,
5 Ala. Rep. 531. •'•;•.
As. to ■ the other points,',tne' testirnony wa^ clqarly irrelevant,
and n5 doubt misled the jury.'. '* • . '-;#'!.*'. '' •" ' ■ *
Edwakds, cbiitra, relied oft th,^ ca^se from from 5 Ala^ Hep. 531^
as fully in point upon tbe^rst questioji presented.
Upon the second, he contended tho question was pertinent and
proper, especially in a cross-examination, whei'q, the assignment
was impeached fpr fraud. , ;.' '..*'••.'' * '\^_
ORMOND, J. — We do not^serceive* any sensibly distinbtion
between this ca-se and that of the I^laniers ai^ M. Bank v.' Bor-
land, 5 Ala. Rep. 54'6,. as k' respects the question put to the wit-
ness of -his knowledge of the intenticm of hisi pfirtner, CarVill,, hi
makjng the deed'of assignment.. The "motives, or inteptiou," or
in other- words,' the secret purpose, of the mind, when* an act- is
done, can only be certainly known to the a(rtojyhimse]f, and the
Supi'eme-, Qmniscieiit • being. When it becomes- important for a
Coiirt, or jury, t6 deterji:iine with what intent" an* act was dono> the
conclusion is" attained from the- circum^ances surxounciing it — "
from' the, acts and declarations of the actor. This process, .it is
perfectly obvious, is a deduction from ih& facts jft proof; being
therefore a de^uctipn, ox inference, fjfoYn'the facts known» or pre-'
sumed to exist, it cannot be* drp.wn by witnes^esr, who arq not al-
lowed to rea'teon to the jury, but must testify to facts. It is thfere-
fo're apparent, that when the witness wr\s asked, as to- his know-
ledge of the " motiiv.es and intentions" bf Carvjll, 'he wai^ not re-
quired to sp6ak of a fact within his knowledge, but oF- his. infer-
ence from facte, which h^ was not required to state. ./■ ' * ?
It is argued, that the importof the question, was not'as to the.
JUNS TERM, 1845. 040
Eeake v. Stout, Ingoldsby &• Co.
opinion of, the 'vvitnes^ but as to the facts frojp which the jury-
might deducp the proper 'conclusion. Such may have been the
design of the question ; we Ccin only judge of it from the lan-
guage in which.it i^ couched- That certainly docs n(pt' call for
facts^ Iput for the intention pi Oarvill in making the deed, a ques-
tion which the witness either cowld not answer at all, or which, if
answered, must necessarily have be.^i the. <5pinion"'of (he witness,
frbm the facts ~wthin his knowledge, attending the execution of
the' deed; and as the Jlnswer to the questio^j if given according
to the terms proposed, would have been improper testimony, the
Court 'did not err in- exbkiding it, . and could riot Hbe required to
foreseid, that the Witness would either refuse to answer it, or else
havo answered it, by stating, not his own opinion, but the facts
frorp which an Opinion might be foi'me4. ....
^he remaining question |[)rescnted' on .-the bill of exceptions,
was^also oorrectly decided by' the CoarU It appears that the
witness, who jy a§ one of the makers of a deed of assignment, had been
examined, for the purpose of proving that the deed was f^ir,
and. bona fide, and had stated in subslance, upon his examination,
in chief, that the property conveyed by the deed, consisting of tho
effects of- the' firm, was fairly deyoied to 'the- payment of the part-
nership debts. ■ ' 'V , . ■ ^* 'v
• tXpon the crosS-ox^mitiation, th'fe plaintiff was' permitted to •ask
hirii," whether one of the debts iAcluded in, and provuied for by the
deed, was nota^debtcontracted by himself, for the purposeof raiding
money to put iijto the partnership. This' question was, certainly
not irrelevant, and therefore shpyjd have been answered. It mfght ,
not have beeh entitled to much-weight before the jury, but.wheth-
er it did or did not tend to prove the alleged fraud,- was a, .ques-
tion peculiarly ^^roper for the.jury. .Tiie dqsign evidently Vvtag,'
to show that there had been a concealment in the deed, by in-
serting a debt not a partpership-debt, aad conc^ing that it was a
debt for which the partnership was responsible, the .plaintiff had
the.righl to sift the deed; and ex^ine all its pi'ovisions. If thgr
testimorry, when introduced, was not prejudicial to'the claimant,
a charge slTould have been asked as to its effect ; it ^ould not -be
excluded in- adviTnce from the jury. ■'•. '. ■
We are unable to per,ceivc any eiror in-. the recorfl. Lot t5'e
judgment be affirmed. / . ' . . "•
82
'Alabama:
MqBride and Wife, et at v. .TkoiApsojo.
•I . • •. ■ V . ■ "^^ ■ ■•' ; , .
' McBRIDE AND WIFfi" ETAL.-v. THOMPSON.' ">
' ■ «i ■
1. Whilethe declarations of a party ip possession of land or c^ personalpro-
.perty^ are admissible as explanatory of his pbssessioti,it is not permissible
to prove every thing he said in respect to thie title, how it was acquired,
&c.; and "an inquiry embi'acingso extensive a scope, should be rejected.
S. Plaintiff claimed title und^ their grand-fathei, H» who purchased the
'_ sl^ive'ln q{i^stion,'in 1833, at a' sale mider execution dgainst th^ estate of
. thfeir feth^r,' A ; in 1839 A made a deed, of trust, embracing the slave, to
. W, to secure W and others for liabilities incurred,, and tb be incurred, as
the, siweties of the grantor, with a power of sale to reimburse them for ad-
vances ; in 1841 thevtrustee sold Ae slave to the defendant:. Hdd, That it
was competent for the defendant to aJsk A, who w^ examined as a witness
for the plaintiff, the following questions j Viz : if W, at a time and place
"• designated, did not ask him, in the presence of S, if there ■vvere other liens
than the deed to W on the slave 2 If there w6re not other liens on the
slave when W made the above inquiry ? If he did not, after the trust sale
m 1841, in the presence of certain person's, admit that he owed ^V. a bal-
ance of' $1500 ? Halving answered the last question in the negative, the
defendant was permitted to disprove the truth of the answer.
3. If one purchase slaves at a sale under du fieri facias with the money of the
defendant, and then give them to the children of the latter, the donees can-
pot recoyer them of a person who afterwards purchases at a sale under a
deed of trust subsequently executed by the defendant; if the sale under
the deed be irregulai^ the purchaser may defend himself upon the ground
»,, of the trustee's right to 1;he"possesgioij<
4. A charge' to' the jury' must be considered in reference to the facts in the
cause, and if thus applied it is^'eorrecti the judgment will not be reversed,
though as, a wn^veriaZjjro/Jo^iion it rqay be erroneous. ' ' \ .' . -,
-• Writ; of EiToi- 0 the Circuit Court of Macon.
* Tbis was an action df ?^etint*e, at the suit of the plaintiffs,- for
the recovery of a female slave nametf'touisa, and her- son George,
the former aged about twetity-five, and the latter about five years
of age. The cause was tfied upon the general issue, a, verdict
was returned' for- the defendant, and judgment rendered accord-
ingly. . '• \ • . . ^ . ■
The plaintiffs claimed. the slaves in question under th6ir grand-
JUJ^E T^M, 1845. <mi
McBride and Wife, et £tl. v. Thompson.
fafther, -Bdkftuhd Hobdy. There* was evidence tending to shpw,-
that the wctoalx^ touise, .was in 1833j sold ^ sheriff's sale^ in
Barbonr county, 'as ihe property of* Samuel G. B. Adams, that
Hobdy'purchased her at the sale.wilh the money of Adams, and
took' her into his possession. Plaintiff then prqposed to prove
what Hobdy said as to his title to Lo^jisa, whilst .she was in his
possession; the defendafit objected to the introTiuction of this
evidence ; his objeCtio;i vV^as- sustained, add the evidence, ex^-
eluded. " ■ * ' . . ' • . •
In 1830, Adams, mdde a deed of trust to Thomas S. Wood-
ward, of land, slaves, &c. in-which was included the woman Lou-,
isa,.to secure the tr.ustee and Others for liabilities "incurred, and to
be incurred, as the sui'eties of the grantor ; with ,a power of sale .
to reimburse thefn for advances. In 1841, the trustee sold the
sjaves'toihe defendjint, and- made hima'bill of sa,le.'with a war-
ranty oftitlfe. .••..* >*■ . ,
It was also in evidenae, that Adams, in 1837, executed a deed
of trusJfo-Devereqx and Thompson, in which the woman Louisa
was embraced. ''.,'■■'■ .. ' '
For .the puppose of contradicjing Adams, who was examined
as a witness for the plaintiffs, tlie defendant asked him, if Wood-
ward, at a certaip time and place, in presence of George Stone,
did not ask \\\fh, Adams, if there wa^ any othpr lien on the pro- ■
perty. The plaintiff objected to this question being ^answered,
bat the Court overrtiled the objection.' The 'defendant asked
Adams, for the same purpose, if there were not other liens on the
property in question when Woodward made the above inquiry,
and this question was adjudged admissible,- though objected to ])y
the plaintiff. • ' • • . v. ■ *. • , ■ • ^,
The defendant tlien asked Adams, if he did not,"after'thfe. tjrijst
sale in 1841, before certain persons, admit that "he still owed ■
Woodward a balaiice of fifteen hqndred, dollars,' and he denied
having made such an admission. Defendant then offei*ed to prove
that Adams made such an adpnission after the trust sale ; plaintiff
objected, but his objection was overruled^
Defendant. also offered to prove, that Woodward and ^tone
had paid mpne^ as the sttfeties of Adams, previous to (he sale,
undfer the deed of trust, and this evidence w'as adrjiitted, notwith-
standing the plaintiff objected. . ^ . ^ •' ^ •
The Court charged the jury, that if they believed '.thei*^ Was
jTW*
65?? V ALA'BAAMv "^ V
McBride and W>fe,.et aI.^ir..TiK)mps6n.
■- ' ' r- 2 •— — -• ^"T ■ •■ : ' —
-frfiiid in the purchase m^de by Hobdy at the shi^-i^s- sate in
Barbour; that thfe wonian Louisa, was' paid fi^r. by ^the purcha-
ser with. Adams' money, then Hobdy acqvirtd no titte by his
purchase. The several questions arising upon the admission and
rejection of the evidence, and. the charge t^the-Gourt, arp.iduly
•l*e$erved by the bill ^sf exceptions. . - . ,
->■.»-.■ ' f-.u-' ••• », .
»• S. F. Bice, and T.-P. Caiwce for the plmntiff in- error,, n^ade
the" following points : 1. X he declarations made by Hqbdy, while
he was in pbssessibh,'' were»'admissible,(Odea v. Stubblefield, 4
Ala. Rep. 40 ;) an,d evenifhfe was a Competent v^itness, his ad-
missions should haV^ been- received. 3. Neither the time, plijce,
9r persons to whom Adams, wa^ soppose.d Uo hay^ made tjip
statements are particularized, nor was. their materiality shown;
and they shQuld have beeji .excluded. It \va.s^a q^aeslion of law
upon facts, whether there were other lien^ ; the.f^ct' and not the
conclusion should have been .stated, m -inqu.ffing what Adams
said on this point. [6 Ala.^ep. 1C9.], 3.. Tlie deedof trust on-
ly authorized the trustee to sell the property conveyed by it, when
^judgment was rendered an^- an fiibecution ws^^etZagalinst Wood-
ward and Stone, and pi'9of that n^oney was.paidby them as
Adams' sureties ^vagnot-to itself-silfficient to have authorized the
sale. 4. The charge to tl>e jury cannot be • supported, it as-
sumes that Hobdy, in using Adaftis' money to pay for.Louisa^
did not borrow it,'^nd has not since of'efunded it ; bat thai he ex-
pended it' with a'viewto Addms' benefit,, audio defraud his cre-
ditors,- (fee. tt is further objeGtiofiable in assuming that .the fact
of thfi .payment having beep. ^ra^de with Adams' money is truB,
and that a title' acquired by a purchaser under execution may be
ipipeached by a person wlao had^no interest in the pit)perty, or
connection w(th' the titl&',.jJt-the«time' of ihe salei . j4 Ala.. Rep.
321 ; ,5 Id. 58^ 19^; 9. Porter's Rq). 679. J / .•'..: .. ,-
. - • ^ * ' ■ ••...• '.• . . ..^
. 'No Qoutisel appdared.' for tbt? defendant/. . ,. * '%'
■ • ' ' * . . • • .. •
., J > •• ^ • • . . - •
COLLIER,^. J.' — vThe declarations of a tcnzmt .in the posses-
sion- of land are 'admissible .as part o^- the 7^65 gestae, (BJiss -y.
Winston, 1 ^.la. Rep. 344; 2 Phil. Ev..C. & H. rio+es-, 592 to
601 ;) and it bas been often held that the same rule prevails in its
utmost «xfent as' to p^rsoRal property. [Oden v. Stubblefield, 4
/ JUNE TERJVI, 1845. 653
McBridejind. Wife, et al. v. Thompson.
Aia.'Rep. 40 ; see also, Phil. ^v. C:^ H.'s notes, 592 to 601, 644.]
But it is not to be understood that such declailitions are admissi-
ble to every conceivable exteijt. True, the affirmation of the
party in possession, that he. held in his own right, or under anoth-
er, ia proper evidence as part o( the res gestae^ which 'j-es gestae
is his coMitiuous possession; but his declarations beyond thjs are
no part of the subject matter, or .thing done,, and cannot be x^-
ceived as such. While it isv.aHowab}e to prove statements of one
in possession,. and explanatory thereof, it ia not permissible to
show every thing that may have been said by him .in respect to
the title ; as -that it was acquired bona fide, and fora valuable con-
sideration ; was paid foi* by the money of a third perSon, or his
own, &c. This we have seen, instead -of. being a part of the res
gestae, woujd be .something beyomi and independent of it. De-
clarations, although not admissible upon the" principle we have
stated, are' sometimes received, because they were against the
interest of the party ?it the time they were made. It is needless
taxjonsider cases of the Icttter description, as it is clear that the
declaj-jations of'Hobdy* do' not. appear to have been against his
iatere^t. ^ • ■,*'■.
,^ The record is«t fault iw not disclosing with particuIkWty what
Avere the statementsof Hobdy Vvhich the plaintifTs^ofTered to prove;
and the prcfpb^ition was So broad, viz : what he said-as to his ti-
tle to the slave Louisa, that its Vejectioji w^as. entirely proper. It
embraced not only what he" said in res^pect to, and explanatory of
his possessiohy but declarations as to 'the title, ^-how>. whdn, from
whom, &c". he acquired it. •• •. ■ • •• •
,..The objection made to the questions pro|)osedi to Adams were
properly overruled. He was ask6d if, .at a certain- time and
place, in the 'presence of a certain perspn, (naming him,) the in-
qtjii'y wasjlpt made of him", whether there was any other lien
on the property in conjli'oy.ersy. This qifestion was proposed by.
the defendant, upon ihq ciioss-ex'aminatit)n of the plaintiff's wit-
ness, who .it must be. presumed 'had given testimony tending to
. sustain -theh' title.. Its tendency wais to weaken ttiat title and
imparv thq eflect q{ the testimony of t^\e witness upc^ »his exacni-
na^ioii in chief. An answer to the second inquiry; vi^. .whethet.
there were not .ofiei* liens onv Louisa, when.Woddward asked
that question, might be important to;the defendap.!, and coutdnot
prejudice the plaintiffs if their title was' good. The same renvirk
applies to the third question proposed to Adams.
654 ALABAMA!,
McBri^ and Wife, el al. ys. Thbrapspn.
In respect to the proof (^f the pa'yment of«K)pey by the benefi-
ciaries in the deed of trust, before the sale was made thereunder,
it cannot be regarded as at all important in the present posture of
this case. The cause was put to the jury upon the bpnajides of
Hobdy's purchase, and they'were informed, that^if they believed
he paid for the woman -with Adams' money, he acquired no title.
This charge, as against Adams' hiiViseLf, 'or one who does not de-
fend upon the gr.ound-ofan interest in himself, or a third person,
acquired for a valuable consideration, cannot perhaps be sustain-
ed. The bill of exceptions does not state the points intended to
be presented with as much distinctness as it' should have done,
and we mus't give to it sqch an interprdtatioh as seems to us inost
natural and reasonable. • • •
Adams, it will be remarked,. when asked whether he "had" not
admitted, after the sale under the deed of trust in 1841, that he
still owed Woodward a balance of fifteeij hundred dollars, deni-
ed that he made such an admission.. The deferidant disproved
the truth of the denial, and thcli proved that Woodward and
Stone had paid money as sureties bf Adattis, previous to the sale
by the trustee. This latter evidence wds.objected to, generally,
but adjudged competent. It does not appear from aH this, that
there was any controversy as to \ht riegularjty ofthe sale under
the deed, or -whether the contingency 'occurred upon which the
trustee was authorized tosell^ viz; that a judgment was retider-
ed against Woodward alone, or ' himself and Stone. No charge
of the ^ourt was prayed which- brings up this question, and we
cannot presume that it was intended to raise it.
The charge then must not be taken as the assertion of la uni-
versal proposition, but should' be ..considered fn refer^ace to the
case before the jury. In this view we may suppose the trustee
had the right, under tfie deed, to seize the, slaves conveyed by 'it,
and it may be presumed, iuithe absence of all Controversy ujion
the point, that the sale was regular. But if the defendant could
claim nothing by his purchase,'' he might , successfully resist a re-
coi^ery, if Hobdy's purchase was fraudulent against creditors,
by setting up the right ofthe trustee to hold the property- under
the deed. • ' -. •*.• ^■
This view is decisive ofthe 6ase, and the result is, that the judg-
ment must be affirmed. -X -• . ■ , .f. ■ . ..*'
JUNE TERM, 1845. 635
Sne^icot v. Games.
f
I .-
;' .; ' . :SNEDicOR'v. CARNES.".. . . ^ V
1. ' Preyiods to the act of 1845, tfie Orphan^' Court Was not invested with the
Jjiirisdiction to compel the executoV or administrator of a gijardian tp ap-
pear and settle the accounts of ±he ^ecease^d guai*dian.
• -Writ.Of Error to the OrpKaps' Court of Greene.
This proceeding Was 'Commenced by Jdseph Carnes, as the
administrator of Wtllkm B. Carnes, against George G. Snedi'cor
as the administrator ctf James Snedicor, who in his life-time was
the-guardian, appointed by the same Court, of "said William B.
Carnes ; "and .was instituted to 'com pel^the administrator of Sned-
icor to pay oy^r the'raoney due by Snedieor to his Wa'rd' at the
time of hi^ death, wbicli happened about four months before he
beccime of age. ^ The guardianship commenced when the \vard
was five-qr.six years old,' and. the money which came to the guar-
dian's hande was shown to be .about ninety dollars; 'The guar-
dian offered evidence, showing the Heliv^ry of a horse to his
ward, valued at ninety-five 'dollars, in the year 1839. He also
produced, and" proved a receipt made by his ward, admitting the
receipt of one hundred and forty dojlars, in full for'bis part of his
father's estate. ' There \<ras eviderjce also x)l the admissions of
the plaintiff^ that hfe knew his brother, the deceased, had be6n
paid every thing which was due him by his gbardian.
Two questions Were presented, 1." Wbethbr' the Court below
had jurisdiction to proceed againat the administrator bfthp guar-
dian.- ' , ■ * J .
2. Whether, under the circumstances, in proof,. the judgment
should not hav6 been for the defendaiit. ." ) •. ..
... • , ■" ^ ■ " ' ' • •'*»"«
■ A. Graham, of "Greene, for the phintrff in error, ; . > , .. ;
J. p. CtARKj'ccHitra. -v. • ».'•'; )'
'GOLDTHWAIXE, J.-T^The 'objection to. th6 exercise of ju-
risdiction by the Qrphans' Court, is condUsiA^e of the cSse. None
of the statutes conferring powers upon' the Orphans' Courts, -ex-
656 ALABAMA.
Seamans, et aj. v.^White.
tend so far as to invest them with authority to cite the adminis-
trator or executor of a guardian to account concerning the guar-
dianship of their testator or intestate ; and these Courts certain-
ly possess no general jurisdiction 'over guardians independent of
statutory regulations. If the matter'Was doubtful as to execu-'
tors and administrators, it seems,certain as to guardians. . .
In Tainaferro v. Basset, |^3 Ala. 'Rfep. 670,] we held, upon
great consideration, that the statutes weradefective in this parti-
cular, with respect to administrators, &c., and since then* but af-
ter this decree, a general statute- has been passed*, conferring the
necessary jurisdiction. [See Acts of 1845, page 167.] ■
As the Court had no jurisdiction over the- subject matter at the
time the decree was lnade,',it is n^anifestly improper to express a-
decided opinion upon the merits of f he case ; thougli "we feel con-
strained to Say, that the receipt of ;the" ward, coupled with the
other evidence, seems persuasive, at leasts to show that the whole'
sum due to the ward was received by him. ' And no effort being •
made to controvert the bonU fides of the payments,. w« should •
probably feel inclined to consider them a^ndt ■improperly^ made.
For the want of jurisdiction, the judgment rntlst be reversed.
V'%'\«-
-. ••■ • ' .,;. '.'* ■■■' ^- :> .. ^>
SEAMANS, ET AL. v. WHITE, '•
1. When a claim is. ipterposed. to property levied on by attachnaei^t, thef
.claimsuitiswhollyindependentof the attachment guit,at leastso long as
' it is pending, • If the claim suit is determined against the plaimant, the
proper judgment is a condemnation of the^roperty, vi'z :' thjit it is subject
to the. levy of the attachnient, and be^d to satisfy the judgment in the
attachment suit, if one then existsj or is afterwards obtained. No execu-
tion can issue upon thig judgment, except for the costs of the claim suit
2. The assessment by the jury in the claim suit, of the value of the property
levied, oflr, is merei surplusage, and does not vitiate.
3. When the creditors of a vender levy on property claimed by Another, by
a. previous purchase.and delivery, if any suspicion is cast upon the faifnesis
JUNE TERM,, 1845. 657
•Seamans, et al. v. White.
of the sale, the jlrfy may inf^r fraud, unless an adequate consideration is
proved. . •' •, . •
4^ Wheij, by or^er.qf the Court, new sfecurities are substituted for those ori-
ginally given in a claim suit, t^e fgrmpr are discharged. •
5. The surety is riot boundfteyond the penalty of the bond, and a judgment
against him for a larger^ sum, will bjffhere amended at the costs of the plain-
tiff in errer. , .
6: When an order is made for the reference of e cause 'to arbitration, and a
trial 'is afterwards had before a" jury, without setting aside such order, it
will'be considerodfo have lie^n Waived.' ' •. ' . '. •
■/ : ' ■ ■ » • ^ .- . .:' ^ . ■ •' '
•Brrbrto'the Cifccuit Court of Lawrence..'.: ■ ■
The defendatit' in . error Icommeirced a suit by dltachment,
against' Jahn McBride, for fifty delfars, before a justice of the
peace, as an. absconding debtor,' which ^was levied on a "waggon.
The waggon was claimed by Joshua Searnansj who gave bond
to try the rights ' A trial -was had b^efore the justice, and verdict
and judgment that the f^roperty was^ subject to the levy. From
this judgment Seamans appealed to the Circuit CoUrt, and gave
bond in the penalty of-onq hundred" dollars, for its 'prosecution,
with A. Woodall and H. Crowley jas his securities ; and subse-
quently, upon an bvdef that he give new security or be dismissed,
gave a new bond with Dukem^nier as surety, in the penalty of
on6 hundred dollars. After several conthluances, an order was
entered of recoi'd, that by agreement of the parties, the matter
was referred to the arbitrament of certain persons who • are nam- .
ed in the order. No action appear^,^ from the record, to have
been had upon this order, but after several continuances, the. par-
ties went to trial upon an issue before tire jury, whether -the wag-
gon was the propqrty of Seamans, or subject to the levy of the
attachment. The jury found the issue for the plaintiff', and that
the waggon was at the time of the levy the propisrty of John
McBride, and jiable to the satisfaction of the. plaintiff's deinand.
They also assessed the value of the waggon at fifty dollars.
, Upoiji the tri^l, it appeared in evidence, that a s"hort timebefore
McBride fell the Stat^, Seamans purchased from him a carryall,
which he afterwards exchanged with hjm for the, ox cart or wag-
gon levied upon, and left the waggon in the possession o( a third
person. Pacts wero also proved, tending to show that Seaman? '
was privy to, ajid aiding McBride in escaping tg Tennessee,' to
83 ' • .
658 ALABAMA.'
Sc!&inaii8^et tA. v.-Whita
avoid the payment of. a debt ^ueJby him. to the Bank. Upon
these facts, the Court charged the jury, that if, McBride owned
and possessed the carryall and waggon, until within a fdW days
of his going to Tennessee, and that tjie claimant pul-chased the
carryall of him,' and at the sanie time' arid before hfe took posses-
sion of it, exchanged it -with M'cBTidp for the waggon, and had
not shown to the jury, any or what consideration he gave for tho-
carryall, his failure t© prove the cofl6tdei;ation,'vyas a circumstance
from which unexplained they might infer, that' claimant heid the
waggon fraudulently, tow^iich the 'claimant excepted.
The Court rend^lred judgjnent upbn the verdict, that the wag-
gon was liable to the levy of the plaintiff's attachment ; that he
recover the property levied on for the satisfaction of his attach-
ment, and that he recover of Seaipans and Dwkemenier his sure-
ty in the appeal bond, the costs, which from the certificate of the
clerk, it appears, amounted to two hundred and seventy-nine
dollars and twenty.eight cents. ■; " ," • :-"-V' '.' : '" ^ - '■ •'. •■
The assignments of error are, ''.•. ; v/ •" *'ii*y'.- ' . .'^, ■*:
1. The matter of the bill of exceptiojQS. .-^y,- •.. .; .^.y „(••«'. ■•'/^.
2. In rendering judgment" witiiout disposing of the bl-der ibr
arbitration. ' , . •.. ;.* * ,
3. In giving judgrrient for the plaintiff for the property claimed.
4. In giving judgment thaf the :property was subject to the
attachment^ befere a jufigraeojin favor of the plaintiff upon the
attachment,.!, •••,.• ..■ . . ■• •%ii.'*-'''* • '-
5. 'The verdict ,was not responsive to the issue;
0. In giving judgment against Dakemenier> and not against-
the other sureties to the appeal bond. '- . -.». *■- .-.
7. In rendering ari inddfinite judgment agairlst 'the surety, to
the appeal.
8. In giving judgment against the surety for a greater ariKnint
than the penalty of his bondv ' ; ' •;:. ■\--r ■..,.. . ,
Lmow aodTETE&s, for plaintiffs in ejfror, cited 9 Pbrter, 39, 70;
5 Ala. 383 ; 4 Id. 367 ; 2 Id. 354 ; 5 Ala.*297 ; 2 Bouv. Law
Die. titlje « Purchaser;" Chitty on Con. HI ;. Clay's Dig. 50, §
I; td. 211, §52, 55; Id. 57, § 11 ; 5. Ala. 770; 6 Id; 27 ; 5 Idv
.778; 6 Id. 32; 7 Porter," 218; 6 Id. .718; Minor, 185.; 4*Alai
65^1; 5 Id. .531* • ^ v ;' • ••^. . >■'.
JUNR, TERM, 1845. 659
•- " • • Seamans, et aJ. v. White. -
/ . '- . #
L. R. Walker and W- CpoBER,- contra.
' ORMOND, J.-^When a daim \S interposed under the statute,
to property levied pn by an attaching creditor, the suit consequent
upon the interposition of the claim, is wholly independent of the
attachmenj, at least, so long as the attachment, suit is pending.
It is therefore ,unimportant when the ckim suit is determined,
whether a judgment tias be6n obtained by the plaintiff against the
defendant in attachment, or whether the suit is still pending. If
it has not been determined against 4iie plaintiff in attachment,
upon obtaining a 'Verdict in the clainr suit, against the claimant,
he is entitled to a judgment of condemnation of the property,
vizi that it is subject to the levy of the attachment, and that it
be condemned to the satisfaction of the judgment, if one is ob-
tained. , •■ - - .
Such is, in effect, the judgment of the Court in this case. The
attachment s«it being in the justice's court; it does not appear
whether a jU(Jgment has .been obtained against the defendant, or
not. If^uch a judgment, has been or is Jiereafter obtained, the
waggon may be sold under an execution issued upon that judg-
ment. I^no such judgment exists now, or is rendej*ed hereafter,
the claifnant cannot be prejudiced, because in no event can an ex-
ecution, issue upon this judgment, except for the costs. The find-
ing of the jury that the waggon was Jiableto the plaintiff's de-
mand, and their assessment of ks value, was mere surplusage
which does not vitiate the residue of the verdict, in which they
find the issue for the plaintiff.- ' . i
We can perceive no error, in the charge of the Court. Al-
though ordinarily, when it is proved that an article has been sold
and delivered, the payment of the Consideration ijaay be presum-
ed until the contrary is shewn, yet when the creditpfs of the ven-
dor assert a claim to the property thus sold, and circumstances
exist raising a.- doubt of the fairness of thd tran^ction, between
the vendol' and vendee, it is iricum|bcrit on the latter to prove the
payment of an adequate consideration. The facts proved in
this case werosnffi6jent, if believed by^ the jury, to ca^t suspicion
upop the sale, and to justify the jury in inferring that the transac-
tion was fraudulent^ unless- shown to be otherwise by proof -of a
sufficient consideration. . • . • ^
The original security given for the appeal, being objected to as
060 " f ALABAJMAjV
TreadwcU, guardian, &c. x. Burden, adirfr.
insufficient, an order was made that " tlje plaintiff give new se-
curity in^ixty days, or be dismissed." Pursuant to this order, $.
new bond was executed, with Dukcmenier as surety, which it
appears was accepted. This waS^a substitution of the new for
the former surety, and operated to discharge the former, from all
liability. The surety was wot, however liable beyond the penal-
ty of his bond, andthe judgment against him for an indefinite
sum — the costs of the action, which mightbe for more than the
penalty of the bond, and in this cas§ was greatly beyondit, was
unauthorized. The proper judgment to be renciered was, against
the plaintiff and his surety for thecosls, not exceeding the penak
ty of the bond, and- for the excQss, If any, against th^ J)laintiff.
Such a judgment/ as' the present, was held to be a clerical mis-
entry, in McBarnett & Kerr v. Breed, 6 Ala. 476, and, as such a
judgment could have be.en amended in the Court below, by mo-,
tion of the plaintiff, it wilj be-amend^dln tfii's Co«rt at his costs.
Such must be the judgment entered in- this case.
As the parties went to trial before ^,a jury;, without notice of
the former order, to a/bitl'ate the matter, it .must, in this; Courts
be considered a waivejr of the order. , " • '••'..
Let the judgment be remanded, at. the>cost'of the plmntiffs ' iff
error. -.'•-.•. .•'••• . ' ^j • •' *
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TMADWELL, GUAfeDIA]S[, &.c. v. BURDEN, ADM'R.
1j Where a ^uardJanjoluntarily, files his accounts foj- final settlement, with
the Orphans' Court, he cannot object on erroi;, that the publication required
by the statute, was not made — the notice contemplated by the act bein^
intended for the benefit of the ward, or others interested in the settlement.
2. ;A11 decrees made by the Orphans' Court, ujionjhe final settlement of the
accounts of the guardiains of idiots,' lunatics, and others, have the "force
atjd effebt' of judgments at law, and, execution may issue for the arnourit
ascertained to be due. against the- guardian : And when an exeqution is-
sued on sucTi decree^ shall b^ returned hythe sheriff " not foundf' gene-
JUNE TERM, 1845. 661
Tread well,, guardian, &c. v. Burden, adm'r.
rally, <Jr as tp a part thereof, executidn may forthwith issue against the
sureties of the guardiaij. '
3. In settling the accounts of a guardian, it is rwt competent f9t the Orphalis*
Coiirt to render ^ decree ^^gjainst his suretiesBjidSHch is notfthe effect of
a decree, w&icli declares 'that a gua?:dian and,nis a^tieii, (without desig-
nating them by name,) shall be charged* with the amount ascertained to be
due, and made liable to the , administrator of his ward, "for Vhich he is
• authorized to proceed in the collection according to law ;" such a decree
does nOt impaip the rights of, the sureties to mdce them parties. And if an
execution rssjie against the sufetie^V^ay tie arrdsted^by supersedeas, and
quashed, but the sureties cannot join the ^ardjan in prosecuting a writ of
error to revise the decreei ^ . . "» '•" . •
Writ of Errpr to the Orphans' Court of Randolph.
The facts in this cafee as sho^n *by the recor#are as follows :
On the 27th December, 1842, Sarab-Treadwell^p/lied for let-
ters of guardianship of the estate of Stephen Treadwdl, a luna-
tic, .which were granted upon- her entering into a bond with sure-
ties, as required by law in such cases ; and on the 3d January,
1843, filed in the Orphans' Court a return of the notes and ac-
counts of thC' lunatic, wHich being stated and examined, were or-
dered to be recorded.
•On the 7th February, 1843, the guardian made a return of her
account with the lunatic's estate, which was examined, received,
and ordered to be entered of record.
An order was made the fifth of September, 1843, reciting that
Sarah Treadwell, guardian of Stephen Tread well, deceased, who
when in life was non compos, mentis, had filed .hfcr account for
final settlement ; that the first Monday in October was set apart,
and that thq clerk would issue citations to the heirs of the dece-
dent, notifying them thereof, that they might appear and defend,
&Ci Accordingly, on the first.day of October a final decree, Was
rendered, reciting th^t a deficit in the assets of the estate appear-
ed to the amount of 880 2^, as rendered by the guardian, and
ordering that herself and sureties be charged w\ih XhdX deficit,
aiid made liable to the> adfinrinistrator of the decedent's estate,
and that "he is authorized to proceed in its collection according
to law.',' Further, " that tbe said Sjjrah TreadWoll, guardian,
&c. surrender to Jaimes Burden, ^dmitiistrator of said esjtate, ali
the efTeots belonginglo the siiftie now in jier bands." ' .. ■ j, , • *
662 f- AL'ABAMA.
Treadwell, guardian^ ^to. v. PUrden, adm'r.
An execution in thq foi;m t)f a-fi^Hfacsas was i^ued on the
30th January, 1844, against the guai'dian and her sureties, re-
quiring the deficit of $81^20, t6 be madej &c. This execution
was superseded upari"a%lTOnt of error being sued oiit by the guar-
dian and her suretres, and a Jbond .executed for its prosecution,
J. Falkner, for the plaintiffs in error. • ' ' • ••^ ..,•• * .'
T. D. Clarke, for the defenfiantsm " . '■•,■'
COLLIER, C. J.— It is assigned for error— 1. That the Or-
phans' Court disallowed the account of- the guardian, returned
the 7th February, 1843, and rejected other accounts. 2. That
there was no notice shown in the record, either by advertisement
or otherwise, aAl consequently no. parties to the settlement. 3j
The decree is rnicertain and: void.
1. The first assignment is not sustained by the record. There
was no exception taken to any decision of' the Orphans' Court,
and it does not app6ar that-the accounts of the guardian -were not
in all things allowed, as they were made out and filed by her.
2. In respect to the objection that there were' no parties to the
settlement, it appears that the guardian voluntarily filed her ac-
counts and vouchers for-final settlement, and she cannot be heard
to object that the publication requU-ed by law was not made. In
Davis V. Davis, et al. 6 Ala. Rep. 614; we considered the effect
of the act of 1806' (Clay's "Dig. 226, § 27,) which directs that
the judge of the County Court shall take, receive and au(|it all ac-
counts of guardians, &c., and after examimng and auditing them,
and causing them to be properly stated, shall report the same for
allowance to the next term of the Orphans' Court : Andfurthei',
that forty days liotice shall be given, &c. of the time, when the ac-
count will b6 rep6rted,&c. . We there re-affirmed the case of
Williamson,, etal.y. Hill, (6 Por-ter!s-Rep. 184,) and held, that it
was not for an executor^ or administrator to object-that the no
tice contemplated b.y the act was not given ; that notice was not
intended for his benefit, but for creditors, distributees, &c. In
Taylor and Wife, et ah v. Reese^Adm'r, 4 Ala.' Rep. 121,itv(?as
said, that the object of the sta.tutc in requiring notice^^is, " that
those interested may have time and opportunity to examine the
account, and come prepiared to coilteSt it." * .
JUNE TERM, ift^J'^ • 663
Treadwell, ^airdian, &c. v. Burden," adm'r.
^The act of 18 fO places the guardians oiadiots and lunatics up-
on-the same, footing as guardians .of orphans, -and makes *them
subject tb the same rules,. orders and restrictions^ [Clay's Dig.
302,^29; and the statue of 1830.enacts, that "alldecrees made by
the Orphans' Court, on final settlement of accounts of executors,
administrators and guardians, " shall have the force and effect of
judgments at law, and executions may issue thereon, for the col-
lection of the several distributive, amoupts against snch executor,
administrator or guardian. [Id. 304, § 42.] The act of 1832
provides, that whenever an exiecution issued on a decree of the
Orphans' Court, on the final settlement of the accounts of a guar-
dian, &c. shall be returned by^he sheriff "tiot found," generally,
or as to a part thereof, execution may forthwith issue against the
sureties of such guardian, &c. . ' [Clay's-Dig. 315, § 43'.] Under
this latter enactmen|,"it has been held, that it is not competent
for the Orphans' Court to ren(|^^dccre(i:'4ga^st the sureties
upon the bond. [ClarkeV. West, et al. 5 Ala. Rep. 117.]
In tl)e present case^ the decree is, that " Sarah Treadwell and
sureties be charged with said deficrt, and be made liable to the
administrator of the estate of the said Stephen Treadwell, now
deceased, for which he is authorized to proceed' in the collection
accoj'ding to Jaw." • Assuming the .premises as correct, (and the
reverse is' not shown,) the guardian ana he^ sureties are chargea-
ble with what she was in ^rrear to the estate »of the dec'eased
ward. The law, as we have already seen,' points out the manner
in which the collection is to be made, aild-lhe decree does not im-
pair the rights of the sureties, or deprive fherjn of. any defence
which they -may be able to make. In. fhct, th6 sureties c£in-
not be considered as pai'ties to the decree — they are not mention-
ed eo nomine; but there is nothing moi'e than a mdre reiteration
of what the law is, viz : that the guardl&n and her sureties are
chargeable with her default. Such a degrbe does, tiot authorize
an execution against the persons who may appear to belhe sure-
ties, although it is competent to issue it .against them, upon a re-
turn as prescribed by the statute, being ma^e to an execution first
issued against their principal. ■ . "
The execution, if irregukrly issued^ (as it would seem it was,)
should have been arrested by a supersedeas and quashed ; the
irregularity is not availabfe on Cwo}: We have seen that the
sureties eo nomine,- are not parties to the decree, and conseqiienr
664
r
^ ^ ALABAMA.
. Tuck V. The gtate.
ly they cannot join tteir principal in a wrft of error. The writ
must' then, be atmended, so as to make thQ guardian- the sole plain-
tiff,'and- the decree will be affirmed. .. , , ,
<. /
• f
TUCK .V. THE STATE.
1. The statutes of this State authorising Court^to tax prosecutors withc6st8
whenever the prosecution is frivolous or malicious, extends only to misde-
meanors, and dojB^ngt jFarraht^jth a taxation in a prosecution for grand
hrceny. ^^ ' ^'^O , . '
• : ■ .- . V . . ^
Writ of error to tHe^Oircuit Court of St. Glair. .
At the spring tei'm for the year 1845, J. C. was tried upon an
indictment for grand larceny, found at the spring term 1.843, and
acquitted. After the acquittal, on motion of the Attorney Gene-
ral, the Court taxed Tuck, who, as the entry asserts, was the
prosecutor in the case, with the costs, the prosecution ' appearing
to the Court to be frivolous and malicious.
It is- now complained, that in prosecutions for felony, the Cir-
cuit Court is not invested with this authority. ^ . V " .'
- ' ' ' ' i'.<-' '*~' ■ -'■
F. W. BowDON, for the' plaintiff in' error, cited Burns v. The
State, 5 Ala, Rep. 227. ' -
Attorney General, contra^ cited the Acts of 1803, Laws of
Ala. 216 ; of 1801, lb, 223 ; of 1807, lb, 391 , of 1826, p. 79 ;
and insisted the l^st act wa^ passed to cover the ground not oc-
cupied by the preceding acts, and to extend the. power of "the
judges over a// prosecutions. -- • ' , .* • ^
GOLDTHWAITE, J.— The only di^erence between this
prosecution and that acted on by this CouH in Burns' case, 5 Ala.
Rep. 227, is, that then the Court acted on the motion of the in-
JUNE TERM, 1845. 665
TuQk V. The State.
dividual indicted, and the record did not show affirmatively that
the prosecution was frivolous or malicious ; whilst here the mo-
tion is made by the Attomoy Generrtf, and- the record shews that
the Court considered the prosecution both frivolous and malicious.
The act'of 1-826 has b6en called to our attention, but it^ terms
are no more, general than.4:he .previous statutes contain. The act
evidently treats .througboat of misdemeanors as distinguished
frorh crimes. The first section provides that ^and juries shall
not be continued in session for more than four days, unless cause
be shown to the QoUrt for th.e detention. .The next is the one
supposed to bear on this case, but it eviderrtly rpfors to laws then
in existence, and makes it the duty, of the CoUrt, with or without
a motion to th^t effect, to tax the prosecutor with the costs, in all
cases in which the prosecution shall appe'ai:- to l^e either frivolous
or malicious.. Mr. Aikin in his. pigest, notices the statute, and
incorporates it in the general law^ as effective only to invest pow-
er-in the Court, with or without motiori, to t^x, &c., ^Aik. Dig.
123, § 65;) and in the same way it is carried into our present Di-
gest, by Gov. Clay. [Clay's Dig. 482, ^ 37..] :
We have ^iven this" matter more consideration than We should
have dojie, hut fr9m tlie circumstance th^t.it is supposed this dis-
cretion to t^x the prosecutoi;. is proper^ to put down frivolous
and malicious prosecutions of.alj kinds and description. This,
perhaps, is the appropriate province of a grand jury, in offences of
a criminal charaqter, as wejl as in misdemeanors; but in /the
latter cases only, in our judgment, has the lawsof thecountry.invest- .
ed the Courts with power to tax the costs. The policy of apy
enactment giving this discretion beyondoflTences D'f a minor grade
may well be questioned ; as tending either to prevent prosecu-
tions which should be originated, or in letting off too easily suqh
individuals as might- conspire to alledge crime ' agaiftst itinoccnt
persons. ^ .■
The judgment awarding the costs niust be reversed, as hav-
ing been rendered without warrant of law.
>-v
84
66& ALABAMA.
O'Brien and Device, eX'rs v. L^wis.
' '. O'BRIEN Am DEVINE, EX'RS v. LEWIS.
■ ■' - , t' . ^ ,
1. To authorise a ca. sa. to be issued, the afEdavit which the act of 1839 re-
quires to be made, must be,ma(j[e, although the defendant was held to bail
previous to the passage of tliat act.
2. If no such affidavit is made, the bail may take advantage of it by plea to'
the scire facias, to subject them to the payment of the judgment.
Appeal from the, Circuit Court of Mobile* • .i' ''*':\
Scire facias by the* defendant in error, .to subject the plaintiffs
in error, as executors of one Young, to satisfaction of a judgment,
as the bail'of one John T. Burton. Pl.eas nul tiel record, and a
special plea, that the ca. S<X. which issued against Burton, and
was returned non est inventus, Was issued without the affidavit
being made, which the act of 1839 requires. To this plea the
plaintiff demurred, and the Court sustained the demurrer ; and
having found the issue on the plea oi'nul tiel record, against the
defendant, rendered judgment, for the amount of the judgment
against Buiiwi, interest, and cos^s. ^
The errors assigned, are, the 'judgment upon tTie" demurrer,
and the rendition of a judgment for interest" and daniages, upon
the origintil judgmeHt. • * • ', >
J! A. "Campbell, for plaintiff in errbr, atgued, that thete could
be no valid arrest^ without the affidavit which the statute requires,
and therefore the ca. sa. was insufficient. That any objection
which the defendant to the judgment could make, is. open to the
baih [1 McLean, 528 ; 2 lb. 322 ; 7 Hon. 130 j 9 Peters, 329;
4 Ipana, 462 V 15 Vermont, 502"; 14 Id. S06; ^ Strange, 993 ;
2 Mass. 481 ; 13 Id. 93 ; 1 H. B. 74 ; 9 Porter, 208 ; 3 S. &
P. 225v] .
Ths recovery, is too large, . The. « condemnation money,"
does not mean interest subsequent to the condemnatr6n. [Doug.
316 ; .6 East, '3 1-2 ; 11 East, 316 ; Petcrsdorf on Bail, 214, § 3.]
There can be no 'damages on a sci. fa: [1 Salk. 208 ; 2
Strange, ^807 ; Burr. 1791.]
JUNE TERM, 1845. 667
0!Brien ani Devine, ex're v. Lewis.
; ■■ .^^— H ; . -^
StewArt aijd Daroan, ^ontra, contended, that the statute did
not contain any clause discharging those from arrest, who were
in custody 'when the law passed. That frgm the principles de-
cided in the case-of Kennedy y. RiQe, l^a.- 11, it was -clear,
. that the party was under arrest wh^n the law passed,, beipg in
custody of his .b?[il | and as they, .could Have delivered him into
close custody, without ^ffidavitjlhe creditor may also,
Butif an affid^avit "was "necessary' to mi^ke the ca. sa. regular,
the want of it was a. mere irregularity, y^hich the bail cannot take
advantage of.. [2- Sellon*s P. 46 ; 16 Johns. 117; 3 Conn. — ;
2 Ld. Raym. 1096; Viner's Ab. 507 ;'2 Com. Dig. 58.] To
show' that the ca, sd. was npt void, but voidable, they cited 5
Hmvard, 253 ; 13 Peters, 15 ; 13 John. 54.9 ; 2 Pinney, 40.
In England, judgments do not carry interest ; here they do,
and 9- scire facias carries CQ6t«. . . >
■ ^ » . ■. ■ -^
- ORMOND, J. — Thebail bonel in this case, was executed
previous to the passage of th0 act of 1st February, ■! 839, to abol-
ish imprisoument for , debt. This. statute received a construction
by this Court, in the case of Kennedy v. Rjce, 1 Ala. 11, where it
was held, that it did not preclude thfe bail from surrendering their
principal. hi discharge of the condition of their brtnd^ because the
act was not intended as a discharge to persons then in actual
confinement, and that the defendant was iij tJustody ©f thq bail.
This decision, if is insisted,- is conclusive of this cas0, as it is ar- ,
gued, that.the right of the bail to ideliver up .his principqi tp .close
confinemeftt, is derived- from right of ti^e <?reditor; and when it is
shown that the bail may do this without an aiHcIavit, it follows'
that the creditor rnay do so in like maimer. The right, of the bail
to deliver up his principal, flows from his undertaking to.pay the
debt, or deliver the person of the debtor in. its discharge. This-
obligation makes him the custodian of the person of thQ.debtor<,
and by consequence confers on him the right of substituting the
common jail, for his own personal custody. The right of the
creditor to imprison, his debtor, is derived from the law, and as
the rightto imprison is merely a remedy for the collection of the
debt, doubtless it may be modified, altered, or abridged, at the
pleasure of the Legislatufe ; and if the remedy is sought by the
creditor, ha must seek it in the mode pomtcd out by law.
C68 . ^, . " ALABAMA . ;
, . . ; ^- . . . : y , ■
O'Brien and Devine, ex*rs V. ^jewis. •
T}h(* a?;t, as we have seen, did not xippl'y to, or discharge those
persons who were in actual confinement tit "the* time ,of its pass-
age, but that principle does not apply to those who were con-
structively in confinenfient^, but in fact were at large upon baii
The wiiole scope arid design of the act forbids such an interpre-
tation. The de^gn'was to prevent actual, and not constructive
imprisonments, and to accomplish this it was declared "not to be
lawful, to take the body of any person in custody to answer fbra
civil demand." We 'think therefore, that the plaintiff could not,
after the passage of th§ act, arrest the debtor, but in the mode
pointed out by thd- act.
We proceed fo the enquiry, whether the bail,- can take advan-
tage of the wapt of the necessary afi?davit to authorise the ca. sa.
to issue. ' " .
In Toulmin v. Bennett & Laidlaw, 3 S; & P. 22tf, and in
Wood V. Yonge, 9 Porter, 208, this Court held, that, it was com-
petent for the- bail to^shew by plea, in answer to the scire facias,
that the plaititifJ' had not glyeh the security for costs, which the
law required as a condition, upon which bail wa^tbbe demand-
ed, and we think <the prihciple of those decisions apply to this
case. Thi5 defendant could not have been rightfully arrested on
the ca. sa. which issued in this else, and therefore the -bail, as in
the cases cited, may take advantage of it by plea: Indeed, tWs
case appears to be- much stronger than the casos above cited, be-
cause nere, there has, been no implied admission, or waiver of
the debtor, who never has been, and "could not be rightfully ta-
ken uner' the*- ca. set f and as it could not have been effectual
'a^cjinst the debtor^ advantage may" be taken of it by the bail.
(See the authorities cited on the brief of the counsel for the plain-
tiff in error.) ■' • "■ • ; ■ "' "
• y^et th© judgment berre^ersed,"and the cause remanded.
JUNE TERM, 1845. 660
Pond, et'ai. v. Lockwood,' et al.
• POND, ET AL. V. LOCKWOOD, ET Ah. - '
1. The act of 1828, places pTbmissorynote^ in respect to the remedy, pn the
same footing with bills of exchange, and 'declares that they shall all bfe go-
■ yemed by the rtiles of the law mprchant,^c, ; consequently, where' such
■ ■ a note is indorsed before its mcCtunty in payment of a pre-existing debt, its
collection may be 'enforced by the indorseeT against the maker, tlioughthe
latter may Jiave a- defence which implicates its" yaiidity, as between him-
self and the p^ee. ,. ' . . .
2. Wliere'the maker of notes had received them several years previously,
and delivered the notes of. third persons in payment of them, it may be
presumed that they were' destroyed or' dtfierwise cancelled, so as to let in
secondary evidence of tlieir contents, witliout a notice to produce tlieni, in
a controvert in respett to the "substituted paper.
3. It is not competent for the makers of promissory notes that hav6 been re-
ceived of the payees -by attorneys ^t la,\^, in payment of demands' iri their
hands for collectiou, to object thajk the latter transcend^ their authority,
wjiere their clients have approved the transaction.
4. Where a note is indorsed to one person, with the. assent Of all interested,
--in.pajonent of debts due the indorsee aijd several otliers, the indorsee may
maintain an action thereon in his oivn name, and no defence can be inter-
. poSed to avoid "its payment, which would not avail if tjie note had been in-
ijofsed and the suit. brought in the names of all who were entitled to re-
ceive portions of tlie svun Collected.
5. Where the ^'wMxV^ object of tlie bill, and that wlwch alone gives jurisdic-
tion to a court of ec^uity, is not made out, the Complainant js not entitled
to relief upon a ground merely consequential, -aiul which contempla1;ee a
decree for a demand which may be' enforced by action at law.
Writ of Errop to the Court of -Chancery sitting at Mont-
gomery. . . . , •> " * -
. The plaintiffs in eiTor fil^d thfeir bill, setting forth that on or
aboHt.the first of March, 183'8,the complainant, Pond, • purcliased
of Robert Har#cll a bertiiin lot situate in the city of Montgome-
17, the number, size and location of whicli are particularJy de-.
scribqd. Harwell covenanted with his vendee that he was law-
fully seized in fee of the premi«es,- that they were frea fi-Onj in-
cumbrances, and that he had good right, to sell and convey the
&iO ALABAMA*^
Pond, et al. v. Lock^ood, et aL
same: Further, that he would warrant and defend the -premises
to Pond, his heirs, &c. . On the IGth March, of th? -same year,,
the wife of the vendor'relinquished her right of dower-^all which
will appear by the deed of co(iyeyance, which- is exhibited with
the bill.
To secure the amount qf the purchase money. Pond made his
three promissory notes', for thp payment of the sum of three jthou-
sand three hundred and thirty-thi'ee doll ars -and thh'ty-three and
one-third cents,<3ach, payable on the third of March, 1839, 1840,
1841. The note first fallhigdue, has been paid, with the excep-
tion of the sum of moire than eight-hundred dollars ; for which a
new note has been given, and which, as complainants are in-
formed, and believe, has been transferred, &c. • To sepure the ,
payment of the note which pext fell due, mortgages have been •
executed, and this as well as the renewed note, are in the hands
of persons unknown to the complainants. On the notp whidi
last matured, suit has b?en brought, and is pending in.tbe County
Court of Montgomery, in the nanje of John iand Walter Lock-
wood, for the^*use of sundry persons, all. of \<'hose names are
mentioned. ' ' ' - . '
It isalso alledged that Harwell, in 1835, mortgaged the prem- '
ises (which he sub'^fequently sold to Pond,) to 'Samuel Houston,
now of th6 city of New-Orleans.' 'That the complainants, nor ei-
ther of them, were advi'sed of the existence of this lien, until long
after the purchase of Pond^n fjaot not until the first iiote was
in part paid, and the renewed note given for the balance. Fur-
ther, that Harwell is wholly insolvent, and/will be unable to pay
them any partef the damages they may sustain in the premises.
The bill makes all the parties who are interested, adversely to the
complainants, defendants to the san;e ; prays that the suit at law
may be enjoined, that the contract between Harwell and Pond
may be Rescinded, (Jtc.
The comf)lainantS' afterwards filed an appended bill, in which
they state"^that the plaintiflfe in^tHe suit at law became the assignees
of the note iri' question, in payment of a preceddnt debt,and call
upon them to state by what means, and when, Harwell became
indebted to them, and whether the assignment, was -not made to
pay a debt previously due. They also insist, that as they were
not advised of the niojrtgage' to Houston, at the time Messrs. Ball
and Crommelin apjilied.tothem a^ the nttorneys of the assignees
JUNE TERM, 1845. 671
Pondj ef al, v.LoQkwood, et aJ.
to learn if they had ally sets off against the note, f hef eforq they
should hot be bound or prejudiced in any mann'er by their admis-
sion that the note was good. • ' ' ,
Tlie greater number of the defendants anstvered the bill, stat-
ing each for himself, that on the Jfirst day- of October, 1838; Har-
well was indebted to them respectively, iri sums which are par-
tieularly deejgna|ed', that the claiivis of each of them were in "th^"
hands of Messrs. Ball & £^rommelfn for Collection; that Harwell
\^as,then solvent, and 'offered' to settle their demands by the trans-
fer of good paper) among which was the note of the complain-
ants. The amt)Hnt of the note in question 'was so great, that their
attorneys preferred it to other notes' for smalL Amounts, though the
makers of the latteir were entirely able to pay. Jn order to be
certain that the compkrinamts. had no defenoe to mtike against the
payment of their note, Messrs. Ball &Croramelin called upon Pond
& Wadsworth before the conclusion of the nDgotiation* with Har-
well for the purchase and transfer of the^ same, and'inquired of
them if there were any sets off, or contingencies, about the pay-
ment of the note, and' whether it would be paid at matui-ity. In
answer to this • inquiry, both Pond and Wadsworth informed
Messrs, B, & C. that the note .was perfectly good, that there
We're no sets off against it, and Ihat it would be paid atmdturity
without defelcation. Influenced by this assurance, the parties
interested in'-a recovery at law, became the proprietors of the
note, by an, assignment 19 the legal ^laintifts, on the 5th -October,
1838. At that time HarvVdl was solvent,, and could have satis-*
fied the demands by the tl-ansfei' of other" paper, but he hqs since ■
become insolvent, and been discharged as a bankrupt under the
act of Congress of 1841, &€. , '■ :'*,.■'
After the coming in of the answers, th^ plaintiffs filed a supple-
mental bill, in which they state that they wetQ mistaken in sup-
posing'that the consideration for the assignment of the note was
the payment of a -precedent debt due by Harwell, to the 'persons
"«^ho claim to bd' assigncies- thereof. They affirm th^t- they iiave
but recently accfuired infornjatipnof their mistake, and charge that
the assignment was only^ niade as a collatertll security for the
payment of la debt.
Some of the defendants, in answer to the supplemental bill,
admit that the complainants may have been informed that tiie
note in question was assigned ag a collateral §ecui-ity ibr the pay-
G72 '^ ALABAMA.
s
.k.
Pond, et al. v. Lockwood, et al.
ment' of their demands against Harwell, ^)ut ih^y posilively deny
the iruth^of such mformation, mi4 reiterate the declaration, that it
was received by them in payment of such debts, Jbcing first as-
sured by Pond and Wads worth, that the}^ would Jbe paid. Upon
this assurance they -were receivQ.d by Messrs. 13. &" C. and the
claims against Harwell ^t the same time d.elivered up to him, and
his indebtedness capcelled.. Some of the defendants ^ed amendr
ed answers, denying that the mortgage by I^^arwell to. Houston'
is a subsisting lien, and insisting that the samo ha:S been full^f paid
off, and satisfied, before the original bilj ^Vas filed.. v,^.'. , - , ..;.
It appears that the note, as to which the complaifiants are seek-
ing to enjoin proceedings at law, was on its face made "negotia-
ble and payable at the Branch of the Bank at Montgomery, Ala."
and from proof found jntherecordj it isshpwn that the balance
due on the first note, <md the entire am®unt of the second, made
by the complainants to Harwell, has beef), paid off since the com-
mencement of this suit, Further,, that about twelve hundred and
seventy dollars w^s paid in4841,in full satisfaction of tlie mort-
gage'to Houston. " Several deposition's were taken at the instanoe
of both parties, and exceptions takeo to tlieir admission "by both
parties, but.it is unnecessary to notice these here.
^ A decree wJis rendered, dismissing the complainant's bill with .
costs. ^ • . I . , ' . ■
T< WiL;.iAMs and I. Wi, Hatne, for the plaintiffs in error„ in-
sisted— 1. The assignment of the pomplainant^s note was in pay-,
ixiont of a pre-existing debt, and under the law merchant does not ,
place the indorsee^ in.sUch a condition that' the mstkers can make
no (defence against them. It' could not -have been transferred in
the usual course oftrade, unless a present consideration, passed to
the indorser. . '. ,
Taking a note in the usual course of Wade,, must mean that
course of dealing which is usual apiong merchants, it cannot em-
brace a mere exchange of one paper security for another,, of a ,
solvent for an insolvent debtor; but it means a valuable con-
sideration, created by a present agreernent between the parties.
The suit at la;;w is in the narijes. of J. & W. Lockwood, for.the
use of themselves and .others; thpy alone are the indorsees, while
they insist that Harwell was only iijdebted to them in the suni
of $399. Thus .far only, do they claim to be indorsees, and as ID-.
JUNE* TERM, 1845. 673
Pond, eft al v. Lockwood, et aL
the remainder of the note, they- &re mere trustees for the other
persons for whose use the suit is brought: so that in no point of
view, neither J. & W. L> alone, or associated with Others-are the
legal holders of paper acquir-ed in t(ie regular course of ithd^.
It is insisted that the testimony of Ifarwell and tf*e receipt of
B. &, Crdmmelin exhibited by him, ^how, tivat the note was not
even transferred t(5 pay precedent debts, but that it Wa^ taken by
B. & C. as a collateral ^e(iurity for those debts in their hands for
collection ; and conseq43ent]y the complainants, are not cut off
from any defence which, they could have made against the
payee.
Thetestimony of Crommelin, which contradicts that of Har-
well, is not responsive- to the m^errogatories proposed . to him,
and upon the exceptions to it, should have been rejected. His
testimony should have been excluded, upon the further ground,
that he testified as to notes given up to Harwell, stated their
amounts, &c., though notice was given to produce them. , "
t'urther, B. c& C. as attorneys at law, had ^o right to exchange
their clients' notes with Harwell,* and the transaction • was .not
confirmed.by, the cliemts until after the. bill in this case was fijed.
[See 3 Stew.' R^p. .23 ; 6 Stew. & P. Rep. 340 ; 1 Porter's Rep.
212.] ' \ \ ■ ' •
The testimony shows that Pond was /absent from the' State at
the time the negotiatioa between Harwell and B. & Q. was con-
summatedand for some trntie before and aftef; so tHat he could
not have admitted that there was no defence tQ the notes before
Harwell transferred it. / ' .
. • ••».•■ . • ., ■
• A. F. Hopkins, with Whcwn was G. O. BAU/yfor the defendant
iU' error, made the following points^ ' 1. The recovery of a note
in the hands of a bona fide holder, who has received the "same
for a valuable consideration, before maturity, and .without notice,
cannot be defeated by the failure of consideration, or sets off
against the original payee'ifit is negotiable and payable in Bank.
[6 Porters Rep; 384 ;' 9 Id. 451 ;' 2 Ala. Rep. 367 ; 3 Id. 297 ;
6 Ala. Rep. 156; .1 Munf. Rep, 533 ; 9 Qranch's Rep..9; 16
Pet. Rep. 1.} ' . • . •• . ' . .
2. Where a debtor on 'application admits a debt to be justly
owing, and upon the strength of such admission, (he person thus
applying takes a transfer thereof, the debtor is estoprped from
85
674V , 'ALABAMA
Pond, et aL V. Lockwood, et al.
setting up a failure of consideratic»i,«ven if it is taken for a pre-
cedent debt, or as security for a precedent debt. [19 Wend. R.
563 ; 21 Id. '94, 172 ; 21 U. 499.] And if a note is purchased
on a promise by the maker to pay, he will be compelled to pay
at airevents' f 2 Ala. Rep. 514:9 ; 1 B «fe Ad. 142 ; 2 Yeates'
Rep! 541 ; 3 C. &E Rep, 136 ; 16 S^rgt. & R. Rep. 18.]
The mortga'ge from Harwell to Houston being on .record,
Pond was cliarged with a constructive notice ' of its contents as
against the complainants, who became bona fide ht)lders of the
note before its 'maturity, without>notice of , any objection to its
payment by the makers.
COLLIER, C. J— In Swift v. Tyson, 16 Peter's Rep. 1, the
Court 6ay,thei'e is no doubt that a bona fide holder of a negotia-
ble instrunrjqnt, for a valuable consideration, without'any notice of
. the facts which implicate its validity, -as between the antecedent
parties, if he take under anindopsemerft made before the same be-
comes due, holds the title unaffected by those facts; and may re-
cover thereoru although, as between the antecedent pai-ties, the
translaction iriay be-without any legal validity. And further,
where one 'acquires negotiabki paper before it is due, he is-flbt
bound to prove that he is a bona fide, holder for a valuable con-
sideration, without notice ; for the law will presume such to be
the fact, in the absence of all rebutting -evidence. It is therefore
pcumbent on the d-efendant to make satisfactory proof to the
contrary, tnd -thus ta oyercom^ Xhe prima facie title of the
plaintiff. ^ \ '
We have repeatedly held, that a note negotiable and payable
iji Bank, and assigned before due, is not subject to a set off
against the original payee. [2 Ala. Rep. 367 ; 3 Id. 297 ; 6 Ala.
Rep. 156.] In Smith v. Strader, Perrine <fc Co. 9 Porter's Rep.
451, after citing the act of 1828, (Clay's Dig. 383, § 11,) which
declares that the reixiedy "on bills of ejifchange, foreign, and in-
land, and on promissory notes payable in Bank-, shall be ;go\^efn-
ed by the rules of the'law merchant," &c., it is said, « We appre-
hend therefore, that the legislature intended to n)ake promissory
notes payable in Bank, negotiable as inland bills of exchange,
and tolse governed and regulatfed by the same law." See also,
6 Ala. Rep. 353. ' • " ' . f
In the Bank of Mobile et al. v. Hall, 6 Ala. Rep. 639, the ques-
JUNE TERM, 1845. 675
Pond, et al. v. Lockwoofl, et al.
tion directly arpse, Mrhether the .indorsement of. a negotiable
promissory note before its maturity, in payment of a, pre-existing •
debt, or as indemnity against the consequences of a suretyship,
invests the holder with a fight to recQver, which cannot* be de-
feated by proof of a latent equity between the. payee and the ma-
kers. We there held, that the receipt of a negotiable instrument
in payment of a precedent debt> was in the usual course of trade,
and .if received under the circumstances supposed, could be enr
forced by the indorsee, 'ilt appears to us," (Say theCourt.) "thepe .
is no sensible distinction between receiving a bill in paynient of a ■
pre-existing debt, and purchasing it with mon^y, or property. In
either case, the coni^idei-ation is a valuable one ; and all the rea-
sons which apply to protect the holder against latent equities be-
tween the original parties, of which he had-no notice, apply with
the same force in the one as in th^ other."-' [See also. Brush v.
Scribna, 11 Con. Rep. 338.] But where the transfer-is made tc
indemnify -the indorsee, and save him harmless from loss on his
suretyship, it is not a transaction within the usual course of trade
so as to protect the holder from a defence that might have been
set up against the payee. [See also," Oullum v. The Brancji B'k
atMobile, 4Ala. Rep. 21.] - " r . ' •; .
. It is, objected by the defendant's counsel, that it does not. ap-
pear that the note in question was assigned by Harwell in pay-
ment of a debt, but vvas merely delivered to Messrs. Ball &
Crommelinas a security for sundry demands which, as attortieys
at law, they held against Harwell. This isi denied by this de-
fendants, who have answered, at least according to their infor-
mation and belief. Harwyelj's deposition^ was taken at the ih-
stanee of the complainants, atid fully sustains^ the objection.
There can be no question, but this witaess testifies what he hon-
estly believes, but it is.probable that his metiiory'isat fault. Be
this how&ver as it may, the consideration of the assignment is a
fact put in issue by the pleadings, ^nd it is Incumbent upon the
complainants ta show such a state of facts as would authorize
them to set up the mortgage by Harwell to Houston, and per-
petually enjoin a recovery to the extent o! the amount whioh
Pond has 'paid thereon, to discharge the incumbrance. Crom-
melin .ejcpressly negatives- the testimony of Harwell, and thus
creates an eqjcilibrium o£ proof. In this posture of the <jase/Jt
may he regarded as if.no evidence had been taken upon the point,
676 ■ •• ALABAMA.
Pond, 4i al. v. LockWoodj et al.
and the apgwers must, according to the practice in Chancery be
considered afs ti'ue.
It was supposed by the plaintiff's, counsel, ihat the testimony
of Crommdin was gratuitously giveil^; that is, that it- was not cal-
led for b^^ the^.uestions. propounded to him. However this may
be, in respect to son^e part of his testimony, we have not thought
it necessary to inquire ; fbr we- think it clear, that the interroga-
tories direttly callfed for a disclosure of the inducements to, the
• transfer of the note, and thd, circumstances under which it was
made. * •
The failure t6 produte the notes delivered to Harwell in ex-
change for the complainant's note, did not authc«*ize the exclu-
sion of Crommd>n's testimony, Thesemotes he affirmrs Were
paid off by the. exchange, and may, especially as the transaction
has been consummated for several years, be presumed to be des-
troyed, or otherwise cancelled. Besides a notice to produce them
would have been unavailing, as Harwell's testimony shows that
fhey are n6t in his possession. • .
It is not competent for the^eomplainants'to object, that Ball &
Crommelih could not receive the note in payment of demands
placed in their hands for collection. Perhaps it might be cpmper
' tent for their cljenCs to refuse to abide by what they have done,
and to insist upoil" charging Harwell upon his indebtedness, or
making them liable for ^ breach of duty, but such ;an objection
by any third person is >not permissible i especially after the ex-
change h^s been ratified by the clients. - ' .
In respect to the dbjection that all the creditors of HarWeJl
who are interested in the note- are not made its indorsees;" we
think it cannot be supported. The consideration for the indorse-
nient was equal to the note, yiz : the amount of the debts due the
indorsees," and the other creditors whose debtiS were thus extin-
guished, The latter would-be entitled to. receive their demands
when collected;. and the indorsees, should they collect it, would
hold that amount in trustfor them. The fact that all those who
are entitled to the proceeds of the note, are not made its legal
proprietors,ca'nYioi enlarge the grounds upon which the complain-
ants may resist its payment. -The assi^ment wa^. certainly
mad^ in the due course of tj'adej for atn adequate consideration,
and we must intend, in good faith ; as therei is nothing in the re-
cord ivom whiofe it can' be, inferred that Messrs. Ball & Cromme-
JUNE TERM, 1845. 677
Tilinan, et al. v. M^ae.
lin, or their clients, had notiee of the equity set up by the com-
plainants, until several years after the transaction took place.
The object of the bill was to enjoin the judgment against 'the
complainants, and ifunsuccessflil in this, then to recover of Har-
well the amount they had paid under the mortgage to. Houston.
In respect to the latter, a Court of law is competent to afford-re-
lief, and Chancery could only inter|fose jupon the ground that
where a person goes into equity for One purpose, that Court may
take jurisdiction of the entire case, and do complete justice be-
tween the parties. It carinot be regarded as a primary ground
of equity, but at. most consequential only. As to the principal
matter, we have seen, the complainants have failed to make out
their case, and it is shown that the law is in f?ivor of the defendr
ant-s. This being so, there is nothing on which to rest the juris-
diction of the Court, as to the prayer for relief against Harwell.
If it could be entertained, because upon the face it appeared unob-
jectionable, then it would be competent to transfer to equity ma^
ny cases of pure legal cognizance, by making them dependent up-
oa a supposititious statement of facts. This wpuld, be a state
of thingsnot to be endured, and need but be mentioned, to show
that the Chancellor properly refused to render a decree against
Harwell. • „ "'••..
Other questions are raised upon the record, ahd-were discuss-
ed at bar^ but -the view taken- is decisive j^f the base,' and we will
only add that the decree is affirmed. '• • • • ■•. •
. . TILMAN, ET AI,. v. McRAE.
■\ - '
l7 When the judgment of the Circuit Coprt, in a, cause of forcible entry, is
reversed because the complaint was dismissed, instead of being remanded
that it might be amepded in the Justices Court, and the Circuit Court is
directed so to enter its judgment, if it after^vards does so and renders costs
againsfrthe plaintiff in the certiorari, this is irregular, but the error isacle-
ricalmisprision, and will be here amended at the cost of the plaintiff in
error.
G78 ALABAMA.
Tiliq|n, et al. v. McRae.
Writ of Error to the Circuit Court of Sumter. •
The judgment in this cause, whennt .was here at a fprmer term
upon a writ of error sued out by McRae, was reversed because
the Circuit Court ' should have remanded the proceedings to the
Justices Court, in order that the complaint fnight be amended
there, instead of dismissing it in the Circuit Court, as was it^ judg-
ment. [See 6 Ala. Rep. 486.J When the cause came again be-
fore the Circuit Court, on the mandate from this Court, that Court
remanded the cause to the Justice's Court, but -gendered judg-
ment for costs in favor of McRae, against the plaintiffs in the cer-
tiorari, who were in point of fact the successful parties. They
now prosecute the "vvrit of error, and insist that costs should not
have been given against them ; but that the judgment should have
been for them to recover of McRae.
• •'?:• I \-^
Lyon, for the plaintiff rn error^ , . ,
R. H. Smith, contra. ^ ^
GOLDTHWAITE, J There is no question as to the error
in this judgment, as the party who has succeeded in establishing
the.mcorrectness of the complaint has been condemned in costs.
The only doubt we have felt is, whether this ought not to be con-
sidered a clerial misprision, and" as such, amendable at the cost of
' the plaintiff in error. In point of -law, the costs generally follow;
the defeated party; and it is pr6perly the province of the, clerk so
to enter the judgment. ^
In' the present case, ihgre is nothing in the record which, war-
rants us in saying, that the Court specially directed this entry ;
and as it is clearly irregular, the injured party could have haciit
corrected on motion, and had the proper j\jdgment- entered nunc
pro tunc. As this course was not prn'sued, the judgment, under
the authority of the; statute,. (Clay's Dig; 322, § 55,) will be amend-
ed here, at the cost pf the plaintiff in error.
Vj.;W:'- ' . . .• f-*'
JUNE TERM, 1845. 679
Walker, et als. v. Tumipseed.
^ . WALKER, ET ALS. v. TURNIPSEED.
1. When a motion is made against a sheriff, a variance between the fi. fa^
described in th&, notice, and the one produced in evidence, cannot be aid-
ed by the production of the original j?. fa., which corresponded with 'the
notice, the motion being made upon an alias.
2. When a notice is pleaded to by the sheriff, it is in the nature of a declara- ■
tion, and may be amended on motion.
Writ of Error to the Circuit Court of Randolph.
Motion by the defendant in error, against'the plaintiff in error,
as sheriff of Randolph county, and his sur.eties.
L. E. Parsons, for plaintiff in error.
T. D. Clabke, contra. ' ' »
OR^MOND, J. — The notice in this "case informs the sheriff,
that a motion Will be made against him for failing to pay over on
demand, the amonntof an execution which is particularly describ-
ed, which issued 01) a judgment for $106 55. After a demurrer
to the notice, the parties went to trial upon an issue before a ju-
ry, when the sheriff moved to exclude' the execution, for a vari-
ance between it, and the^./«. described in the notice, the execu-
tion, when produced, being for $100 65. The plaintiff to ex-
plain it, produced the original^, fa., which w-as for the correct
amount, the money having been collected on an alias fi. fa., and
offered both in evidence. The Court refused to exclude the alias
from the 'jury, and permitted the original to go tp the jury, as ex-
planatory of it, and to shqw the true la«iount of the judgnrent.
This, according to,tbe decision in Johnson v. Gray, 6 Ala. Rep.
276, was erroneous, where it was held, that the question before
the jury in such cases, is not only whether the money was col-
lected, but whether it vva's collected by virtue of the particular
execution described in the notice ; and that a misdescription of
the execution, is a fatal defect. That decision applies fully to this
case. • • . • • •
680 ALABAMA.
^' Julian, et al. v. Reynolds, et al.
■f- — ■ — : : : •
We think however, that where, as in this case, the notice is
pleaded to, it is in lieu of a declaration; and rhay be amended.;
but no such niotibn was submitted to the Court.
As the cause must be reversed for this error, we decline a fur-
ther exaniination of the • assignnrenfe of error, as they may not
agaip arise.
Let the judgment bb reversed and the cause remanded.
JULIAN, ET AL. V. REYNOLDS, ET AJL.
1. An administrator with an interest may purchase at a sale, made of the in-
testate's estate, and if he uses the assets of the estate in making Su^h pur-
chase, the distributees may elect to consider the appropriation a conVer-
sion, or may treat the administrator as a trustee ; this .being the law, he
cannot make a gift of the property so as to defeat the trust '
2. An answer in Chancery, when offered in evidence, is regarded as a de-
claration or admission of th6 party maJcing it, and when the confession of
the respondent would, with respect to others, be resinter alios, it cannot be P
received. ' .^
3. The declarations of a donor made subsequent to the execution of a deed of
gift, are not admissible to defeat tjie gift.
4. Although administration may be granted in another State upon the estate
of one who there dies intestate, if slaves belonging to the estate are brought
to this State by the administrator, a Coiirt of Chancery may here entertain
a bill by a distributee to enforce a distribution.
5. To a bin for distribution against art administrator, appointed abroad, who
brings a portion of the assets into this State, all the distributees should be-
made parties ; but a personal representative of a husband of one of the dis-
tributees, who never reduced his wife's shal*e into possession, need n(rt
be joined. •*.■•■• • '' • '?
_■ "■ ■ • ■ • r •. . . ■ "
Writ of Error to the Court of Chancery sitting in Lowndes
county. . •
The complainants, Benjamin Reynolds and Sally his wife,
JUNE TERM, 1845. 691
Julkn/et al. v. Reynolds, et al.
Wiley Turner and Frances his wife, Thomas W. .Turner and
Harriett his wife, aliedge,. that in right of their respective wives,
they are distributees and heirs of James Mosely, deceased. That
the decedent died in therStateof South Carolina, and that there
administration was duly granted of his estate to his widow, Mary,
and his son, John .Mosely, who sold the real and personal 'pro^
perty belonging to the intestate. At the sale thus made, the ad-
ministratrix purchased the slaves with the eflfects of the estate,
and removed with them to Alabama, where she now resides —
the administrator still remaining in South Carolina. . It is further
stated, that " some of the slaves have had ihcrease," some have
been exchanged for other slaves, and others have been purchas-
ed with money belonging to the estate. That the administratrix
has purchased a tract of land and other property with money of
the estate, and has conveyed by deed of gift to her daugh-
ters, Eliza, (now Mrs.- Julian,) and Martha, all the slaves and
personal property, which she acquired by purchase, ex-change,
&c. " , ^ •
iThe bill prays an account, of the intestate's estate, and that
distribution be made of the slaves and other property now in the
possession of the administratrix, and that the deed of gift be can-
celled, &c. -
Mrs. Mosely admits, by her answer, the material allegations
of the bill, that shfe. purchased the slaves for the heirs of the in-
testate, with money arising from the estate, and that the money
accruing from the sale of the lands has been applied to the 'pay-
ment of the intestate's debts.
Geo. G. Julian, the husband of Eliza, also answers,«ays that he
does not know whether the slaves were purchased with the effects
of the estate of the intestate' or not,but he claims the slaves in right of
hfs wife, as Martha Mosely, the other donee, has since died. He ob-
jects to the relief sought, on the ground that the complainants should
prosecute their remedy on the administration bond in South Car-'
oirna,before they can -proceed against the property in question ;
Further, that the arlswer ol the administratrix cannot be used as
evidence to defeat, or in arty manner affect ^the deed of gift she
has made.
The Chancellor ordered and adjudged that the deed of gift
be cancelled and set aside, that the Register take an account
86
682 ALABAMA;
Julian, et al. v. Reynolds, et aL
of the estate of the intestate, brought to this State by the admin-
istratrix, including the slaves purchased by ber at the sale in S.
Carolina, together with their increase'; also, thdse purchased by
her since that time, with the assets of the estate, or acquired by
exchange ; besides the land and other property purchased with
the money to which the distributees were entitled.
The Register was directed further to take an account of how
much each of the heirs and distributees may^ have received
towards their portion of the estate; wbp.are 'the heirs and
distributees, and the quantum of interest to which they are
respectively entitled,' under the law of descents and distribu-
tion, &c. . , . '
' • ' r . ■ •
T. Williams, for the plaintiff in error, made the following
points: 1. Mrs Mosely was an administratrix with- an interest,
and might. purchase at a sale of her intestate's estate. [2 Stew.
Rep. 47 ; 4 Porter's Rep. 283 ; 6 Ala. Rep. 894.] • 2.. It is not
alledged that the deed from Mrs. Mosely to Mrs. Julian, any Mar-
tha Moeely was fraudulent, and such a presumption cannot be
indulged. 3. The answer of Mrs. Mosely is no evidence to de-
feat the gift she made her daughters. 4. If it was competent to
call the administratrix and administrator to an account in the
Courts of this State, the decree should have been for an account
against them, and a partition of the estate which v^as chargeable.
5. iVll the -distributees should have been made parties— two of
them, viz : John- Mosely and Jacob Tillman, are not before the
Cogrt
..... ,' ., '. •.^*\
J. M. Doling, for the defendant in error. The distributees
may elect to compel Mrs. Mosely to account for the assets of the-
estate of the intestate with interest, or they caij treat 'her as a
trustee in respect to the slaves, &c. purchased with the money.
[2 Johns.. Ch. Rep. 30, 104 ; 4 Id. 305 ; 1 Monr. Rep. 44.]
She cannot make herself the owner of the money, or by a;
gift or otherwise, change the destination to which it was desigii-.^^
ed when she purchased. [1 Johns, Ch. Rep. 119; 1 I)es9w
Rep. 154.] , .•.>.;<»■*■.•
The bill shows that John Mosely had received his distrtbuttve
share, and resided without the State; that Jacob Tillman is dead,
and the objection for want of parties cannot be supported. As
JUNE TERM, 1845. 683
JitliaQ, et aL v. Reynolds, et al.
to aH- the' defendants but Mrs. Mosely and Julian, tKe hdll is ta-
ken for confessed ; they answer, but Julian alone assigns errors.
The answer of Mrs. Mosely is evidence agaiilst her co-defendant,
who claim$ as her ^onee, [6 Cranch's Rep. 8, 19, 25 ; 9 Wheat.
Rep, 831;] and his answei* may be overbalanced by the positive
testimony of a single witness, as the bill does not charge him witji
knowledge, and he merely states his opinion, belief, &c.
COLLIER, C. J.— 1. There can be no question, according to
the decisions in this State, that Mrs. Mosely might have pur-
chased the property of her intestate's estate,* at a sale thereof
made according to law; and in the absence of anything shown
to the contrary, it will be presumed that the common law of South
Carolina- is accordant with our decisions. This is sufficiently
established by the cases cited by the counsel for thfe plaintiff in
error. . . ■ . . •
These gire prinoipfes which we do not understand are contro-
verted in the present ease. Mrs. Mosely "admits that she pur-
chased the slaves with money belonging ^o the estate, for the
benefit of the distributees; and hence it is contended that she ac-
quired no title to them in her own right, but, that she held them
in trust, and they must be distributed as the money would have
been, had shp retained it. That the distributees, had they so
elected, might have considered the purchase as a conversion of
the assets of the estate, and charged her with the money and in-
terest, but they have thought proper to treat her as a trustee.
This argument, we think, is well founded, both in reason and up-
on atfthority. Such being the law, Mrs. Mosely could not defeat
the^ trust, by the gift she made to her daughters, and cbnsequ^nt-
ly it is not essential to the relief prayed, that the bill should
alledge, that the deed . sought to be set asid^ is tainted with
fraud.
2. It is said to be a strict rule, that the answer of one defendant
shall not be read in evidence against another ; the reason being,
that thefe is no issue between the parties, and there has been no
opportunity for.cross-examination. [Gresly's Eq. Ev. 24.] But
this rule it is si^id, does. not, apply to cases where the other de-
fendant claims through him, whose answer is offered in evidence ;
nor to cases where they have a joint interest, either as partners or
#^
984 ALABAMA.
Julian, et al. v. Reynolds, ^t al«
Otherwise, in the transaction. [Greenl- E\r. 210 ; 3 Pkii, Ev^ C'
& H,'s notes, 931-2, and cases there cited.. .
An answer in Chancery, when offered in evidence, is regarded
as a declaration, or admission of the party making it, fend- where
the confession of the respondent would, with respect to -others, be
res inter alios, it cannot be received. [1 Starkie's Ev. 288, 291 ;
2 Id. 3G-7 ; JGreenl.'Ev. 210-11, and cases cited in the notes, to
each of these.] None of the cases cited for the defendant in er-
ror allow greater latitude in admitting an answer than this. Osr
born V. The U. S. Bank, 9 Wheat. Rep*-^831, recognizes the
rule as we have laid it down, and holds, that where a defendant
dies after having answered a bill, his answer is evidence against.
one who comes in as his representative. * „ > . .
The defendant, Julian, declares that he does not know*, that
Mrs. Mosely psrchased the slaves which -she gave to his wife and
daughter Martha, with the money of her intestate's estate ; and
the answer of Mrs. Mosely is offered to countervail the effect of
that declaration, made under oath, in response to the bill. It is
perfectly clear, that a deed of gift cannot be defeated by the'stPte-
ments of the donor, made subsequent to its execution ; and the an-
swer of a co-defendant cannot be received for that purpose,
where his declarations would be incompetent. There vyas then
no evidence to show that the deed to Mrs. Julian and her
sister, was inoperative, in consequence of the -invalidity of the
donor's title.
3. Although the. intestate died in South Carolina, his estate
•w^is there administered on. and the slaves were there sold, and
•purchased by Mrs. Mosely, yet as they were brought by her to
this State, a Court of Chancery may entertain a bill at the suit of
a^ .distributee, to coerce their distribution, &c. Calhoun v.
'King, et.al. 5 Ala, Rep. 523, is a conclusive authority upon this
point.' . ■ ■
4., To a bill like the present, all persons interested as heirs, or
distributees of the intestate should be made, parties, that their
- rights may be adjusted, and the estate finally^ disposed of Al-
though John Mosely may have received his shjjre, it is perhaps
proper that he should be made a party, that the decree may con-
clude him. If Jacob Tillman is dead, we can perceive no rea-
son why his personal representative should be joined; never
having reduced his wife's share into posses§io5n, either actually
.*.-
JUNE TERM, 1845. ' 685
Burnett v.-Handley. '
or constructi^'ely) no interest ve6te4 in him, that couM he trans-
mitted on his death, ..'<•.,. • /» .:•«'■ >! '.^ . , . i
For the second point congidef^d, the docree.is revej^sed^.andl
the cause r-eraanded» , • '• ,,, '
, .... BURNETT V. HANDLfiY.",. -. ;*•
1. Whenaelave is levredqn at the suit of three creditors, an'd is claimed *by
' a stranger, -who executes a claim bond to the junior execution only, and
that creditor alone conffeste the title witli the claimant, and succeeds in .
condemning {lie sTavc, the Other creditors have no right to claim theTnoney
which he "receivea frorn t3i€f claimant, in discharge of the claifu bond. '
■ .Writ of Error to the Circuit Coart of 'Wilcos. . • . * '
• ■ ... . . ., ... ,.■ - . ■ , •; .;>
This- was a motion by Burnett, as sheriff of Wilcox county,
agairist Handley ; and* its object is to obtain the judgment of the*.
Court with reference to the appropriation of money betweea ce^r-'-
tain execution creditor's. The motion, by consent of'partiesi was
heard and determined by the Judge, without the intervention lof
a jury, upon the following state of fa.cts, to wit :
: 'Handley obtained judgment against otl'e Joseph B. -idoSsey, at
the faji term, 1842 ; his execution fssued on the 5th of December,
I84S, and the same day was levied on a slave named Geoi-ge; as
•Dossey's property.^ Thereupon the sheriff demanded a bond ofi
indemnity from Handley, which was executed. Afterwards, this
slave was claimed by William Possey, and a bond given; to try
the right of , property. At the fall term, 1843, the slave was held
liable to satisfy this execution, and his value assessed at $550,"
which sum was thereupoti paid by the claimant to the attorney
of Handley, who now holds the same, subject to the direction of
the Court, with.respect to its application. •
On the same day when tl^e sheriff levied Handley's- execution,
he also levied upon the same slave three others, one in favor of
686 ALABAMA.
' ' Burnett v- Haadley.
Fcancis 'Beltis, against- the -said Do«sey^nd Janse§ H, JVIcIlv.ain ;
one infevcfi' of Wm. T. Matthews against Dossey ' aiid -David
Mandeville, and .one in favor <5f;the.satne plaintiff against Dossey,
Wm, F. Daniel and John D. Galdwell. These executions were
received by t-he slxeriffon.the 22d of August, 1842. There was
no proof that any indemnity bond was executed by the plaintiffs
in those three cases, or that any indemnity was demanded^ It was
proved that in the cas6 of Bettis, the money had been paid to
his attorney by Burnett the sheriff. It was proved by Matthews,
the plaintiff in the two other cases, that the sheriff, Burnett, paid
to him the sum offoUr hundred dollars., and it appeared from the
executions, that sum was more than sufficient to satisfy both. 'At
the time the sheriff paid this sum,-he Was called on- to do so by
Matthews, a^dthe money was paid at the sheriff 's office, and at,
and immediately before the payment, the executions were, in his
hands. Matthews did not receipt to the sheriff for the moneyin
the cases, nor did he assign them to the sheriff, but it was under-
stood and considered'by him, when -he received. the money, that
it was received'on those executions. ■
The Court, upon this evidence, considered Hafndley as entitled
to have, the money applied to the discharge of his execution, and
so ordered. To this decision JBurnett excepted, and. insisted up-
on the application of the money tpthe discharge of the other €3^
ecutior^s* ' - ' • "
The judgment of the €lircuit Court vpon this matter is assign-'.
. ed tis error. - '. •■'.*-.. 4 ',■•••>' •
Cb^. IXear, for the plaintiff ih error, insisted that the execu-
tidri of thfe indemnity bond by Handtey, gave him no supenot
right? to the slave, unless the other plaintiffs had refused, upon
request made, to indemnify also. Here the "sheriff may have be- -
come liable, and a third party cannot be altowefd to show the pay-
ment by him, as the ground for acquiring the. exclusive right to
the money realized from the sale. ' •.•',•** •*. •
Sellers, coiitra. •* • ■••• V,' •• * j; »..r*;,f-V.
GOLDTHWAITE, J.— In point of fact^here is ho contest here
between the several creditors of Dossey as to the appropriation
of the monfey. The sheriff, it seemS) concededhis liability to sat- .
JUNE TERM,- 1845. , '687
: , . ( . 1 : !_: ._
MpLemore, et al.v. McLemore, Adm'r.
isfy the execjitions which had issued at the suit of Be»ttis -and "Mat-
thews: vVhether this liability ^ew otit of his neglect, to require a
claim bond fi;om'the 'cla"iVnarit'of the slave' -Iciried on, oi' from his
omission to make the mon(?y fronq the ot^er pprSQn-s agElinst-whom
as well jls'Dossey, these executions wef.e issued, does not appeaf ;
nor is this material, because, if these creditors were nowconrtest-
in^.the right bfHandley to the money in the hands pfhis attor-
ney, if could not be said their's was superior. 'HandleLy has; .'in
legal efifect, done no more than enter into an' arrangement with
the claimant, iji the nature of an accorded satisfaction of the con-^
•dition of the clainj bond" executed by the latter: This right is per-
sonal to him, and is hot affected, even ifthe other creditors had .a
paranioant lien" upon the slave. In this view pf the .case, it is
unnecessary to'dfetermine whether the lien 6f the other creditors
was destroyed by the omission of the sheriff to require a claim
bond on their executions* ^ ^ ^- \. ' '.
■ Judgment ttfRumed. '' . • .... '''.•••.■ .'
McLEMORE, ET:> .AL. ,v. Mct^MORE, ADM'R. :
1. A testator devised the residue pf hi^ eistate, as his executors thoyght pro-
per, to his wife, to rear and educate his children, .during her life, and pro-
ceeds : " As the balance of my-' children come of age, 1 Tvill that they re-
ceive such 'a part, of their part of my estate, as my executors shall think"
proper to give them at th'at' time. Also, I will, that when my dp,ughter,
Eliza jyjcLemore becotnes. of ag©, aiid^marries, that ^he receive a part, of
her part, of my estate as the executors may think proper. I will when ray
youngest child eomes of age, or my wife should marry, then in either case,
I will that there be a division take place between my wife, and my childreni
.Vujd each on6 share an equal part of all my estate." Finally, he declcu-es,
"I will, at the death of my wife, all my children to share all my estate
equally." |Held, that' these legacies were vested, the enjoyment of them
being postponed until the coatjngencies happened.
2, Ojie of the legatees having. di^d before the contingency happened, leav-
ing one Child by, a former wife, and three others by a subsequent marriage,
688 ALABAMA.
Mcl^etaore, et al. v. Metemore, Adm^r.
tindtwo of the last children h&ving als6 diedi Held, that the portion of the
two lAst cnildren, hi their father's legacy, would de^ceud to their sister of
, the whole ^(loo.d, to theǤxchi^on of tlj^^e renjaining sister of the half bjood.
■ Errprto-th^ Orph'ans' (^Qurt p'fiiMxDntgDmery.
This proceqding was a motiop by Moses McLemore, adm'r,
for distribution of two slaves among the distributeesolf' his intes-
tate,. WiJiiam-MoLaraore. It appears that the slaves to be dis-
tributed, canie by the will of James McLemore, the father of Wil-
liam. That Wiljiam McLemore, at h'ls death, left a widow and
four children — one, Mary, by a former mkrriage, and three by
the last rparrrage, two,of wbkjh have died^ leaving one," Evelina,
surviving. Ij;- further appeared that Wiiliam^McLempFe, died
before the youngest child of James IVIcLemorQ arrived at the
age of twenty-one years. The will of Jamas' McLeniore was
also in evidence, but need not be here set out, as jt, is. Sufficiently
described in the' option of the Court. .' "
,The Court held, that. the two slaves w^retabe equally divided
between the" two snrviving children of Wflliam McLemore, and
directed distribution accordingly ; from which this writ is prose-
cyted, and which is now assigned as error.
Hayn^ & Elmore, for the pla^inti'ffs in error^ contended, that
Williiam McLemore took a, .vested interest in thfc slaves, uhder the
will of his father." ■ [6 Ve^ey; 239 ; 6*Edrter, 507 ; 5 Ala. Rep.
143 ; 6 Id. 236 ; 3 Murphy, 318.] That the interest having vest-
ed in him, at the death of his father","' James McLemore, desoetid-jf
ed to his heire at law, an4 having died bfefore the contingency
happened, upon which it was payable, descended to his heirs at
law*— and that the estate would go to the chiUJ o^jthe whole blood,
under th§ statute of distributions. , : .... ,,, ^ .^^ v.,
Belser, contra, argued, to show, thatby tb^ provjisions qf the
will of James McLemore, it Was clear the property not divided^
by his will» was not intended to vest, until the youngest child
came of age. That as this event did not happen uritil after the
'death of William McLemore, the property vested in him, and
that his share will be equally divided among all his children equal-
ly,'whether of the whole or half blood, who will lajie directly'
JUN£ TERM, 1845. 689
McLemore, et al. v. McLemore, AdmJr.
from their g^randfafher, and not through their fathen That grand
children may take under the term children, he pited 4 S. & P.
286. Upon the construction of the will, he cited 6 Porter, .21,
507, 523 ; 1 1 Wend. 259 ; 4 Hawks, 227 ; 6 V?sey, 239 ; 6 Ala.
Rep. 236; 14 Vesey, 389; 3 Murphy, 318 1 14 Pick'. 318.
ORMOND, J The question to be decided in this case arises
under the will of James McLemore, and is, whether his children
took an absolute vested interest in that portion of his estate, or
whether it was contingent, and not to vest until the. period ap-
pointed in the will for its distribution.
The general rule upon this subject is, that whei'e the time an-
nexed to the payment of the legacy, is of the substance of the gift,
as a bequest to A, when he attains the age of twenty-one yeariS,
it does not vest until the contingency happens. This rule, how-
ever, like all others adopted for the purpose of expounding wills,
yields to an intention inferrible from other parts oftfie will^ that
it was to vest immediately. As wh6re the interest is to be paid
in the mean time to the legatee. [Fonnereau v. Fonnerearh,, 3
Atk. 644 ; and see also, Marr, Ex" v, McGollough, 6 Porter, 5^07,
and McLeo^ V. McDonnel and wife, 6 Ala. Rep. 236, where
this question was elaborately discussed, and the authorities con-,
sidered.
There is indeed no drfficulty in ascertaining the rule, which is
well settled, but in making the application of it to the particular
case. We are then 'td ascertain, if possible, what the testator
meant. He first gives such of his estate as remains, and as his
executors think proper, to his wife, to' rear and educate his chil-
dren, during her life. He further provid^^ for specific bequfests
to some of the children, and proceeds, "as the, balance of my
children become of age, I will, that they fpceive such a part,- of
their part of my estate, as my executors shalL think proper to
give them, at that time. Also, I will, that when my daughter
Eliza becomes of age and marries, that she receive a part, of her
part of my estate, as the executors may think proper^ I will,
when my youngest child comes of age, or my wife should mar-
ry, then, in either case, I will that there be a division take place
between my .wife, and my children, and each one share an equal
part of all my estate. I also will, should any of my ^children die
87 ••
eeo ALABAMA.
McLemore, et al. v. McLemore, AdmV.
without a,, lawful heir of their body, that part they receive from
my estate, shalj be eq|ually divi^Jed among the balance of my
children.. And I will, at -^tbe death of my wife, all my children to
sh^re all my estate equally."
•We thiiik it is evident from the .general xKHiception, as well as
from the particular expressions employed in this will, that the le-
gacies were intended to vest immediately. The children were to
be equally interested in all the property, but the immediate 'en-
joyment of it was postponed, because it was considered necessa-
ry to preserve it- as a fund for the. support and cd^jcation of the
younger children. Yet, as it might not all be wanting for this
purpose, the executors wer6 invested with a discretion to pay
over such portion of it as they might think proper, when the chil-
dren se\l^erally.came x)£ age^ which is significantly called " a part
of their part" of the estate. Finally, when the youngest child
eame of age,. or. if the wife married again before that period, an
equal division was to take place. The very term *' division^'' irh-
plies an interest in the ftind to be divided, nor can a doubt be en-
tertained upon the entire will, that it was the intention of the tes-
tatbr that the legacies should vest-immediately. The case of
McLeod V. McDonald, 6 Ala. Rep. 236, in which the same con-
clusion was attained, was nof near so strong a case as the
present.
It appears, that William McLemore died before the contingen-
jey happened, upon which the division of the residue was to take
place, leaving at the lime of his death, a widow and four children.
One, Sarah, by a former .marriage, and three by the last mar-
riage, of whom two have died, since their father's decease. It
also appears; that tvw slaves having beeii received since the death
of William, from the estate of James McLemore, the Court di-
rected them to be equally divided between the two, surviving
children, supposing the legacy to William. McLemore to be con-
tingent, and that the children of. James could inherit under the
will, directly from their grandfather.
This order, it appears from the view taken, was erroneous.
The legacy, to William McLemore Jbeing vested, at his death,
his interest in the residue of James McLemore's estate, passed
to his widow and heirs at law, one fifth part to the widow, and
the residue to his children. Two of these having died since their
father, their share of their father's estate will pass to the surviv-
JUNE TERM. 1845. 691
Simington, use, &c. v. Kent's Ex'r.
ing sister of the whole blood, to the exclusion of- the sister of the
half blood, as provided by the statute of descents,' (Clay's Dig. 168,
§ 2,) which prefers the kindred of the whole blood in equal de-
gree, to the kindred of the half blood in the s^me degree.
Let the decree of the Orphans'Court be reversed, and the caUse
remanded for further proceedings.* . ' ' ^..^
SIMINGTON, USE, &c. v. KENT'S EX'Ii. . '
1. A written Jiotice to the attorney at law of a party, to pijbduce a paper to
be used as evidence, is declared by statute to be vaJid and legal to all in-
tents and purposes, as if 6'erved on the party in, person,
2. Where, a suit is brought in the name of one person for the use of another,
a notice to the .attorney of record of the plaintiff, to produce a writing
which merely describes the suit as between the nominal plaintiff and the
defendant is sufficiently certain,. and the attorney cannot excuse the non-
■ production, by proctf that h? was retailed by the plaintiff really inter-
ested . ■ •. '
Writ of error to the Circuit .Court of Perry. " ^
TitE plaintiff in error declaTed against the defendant for work
and labor done, for goods, wares and merchandize sold and de-
livered, and iapdn an acQount stated. "The defendant pleaded^
1.' Non assumpsit. 2. That the defendant had no license to
practice medicine at the time the account was made, fpr the re-
covery of which this action is brought. Thereupon the cause
was submitted to a jury, who returned a verdict for the defend-
ant, and judgment Wa§ rendered accordingly.
On the trial, a bill of exceptions Was seajfed, at the instance of
the plaintiff^ which presents tne following point : After the plain-
tiff had proved his Recounts, w^ich were for services rendered as a
physician, and the testimony had close'd on both sides, the attorneys
for the defendant produced a notice entitled and addressed thus :
"W. A. Siminglon v. A. G. McCraw, Ex'r of Robert F. Kent.
692 ' ALABAMA.
r
Simihgton, Use, &c. v. Kent's Ex'r.
Perry Circuit Court. To Hugh Davis, attorney of record "for
W. A. Simington, the plaiutifF." The notice then informed the
attorney, "that the license, or permit, of W. A. Simington to
practice medicihe and surgery will be required to be produced
on the trial of the above stated case, in which said Simington is
plaintiff, arid A. G. McCraw defendant, and which stands for ti'ial
at the next term of the Circuit Court of Perry county," &;c. " to
be holden," &;c. "in September, 1843." This notice was sub-
scribed by the defendant's attorneys, and acknowledged' to have
been received by the person who appeared to be the attorney of
record for the plaintiff, some weeks previous to the commence-
ment of the term of the Court at which the production of the pa-
per was required. ' But the attorney on whom the notice was
"served, denied tharhe represented Simington, biit insisted that he
was the- attorney of the beneficial plaintiff. For riiat reason, and
because the 'notice was not served on either Simington or the
_ party for whose use the suit was brought, he insisted tha/t it was
insufficient.tO" require the production of the license; but the Court
rCiled otherwise. , '
H. Davis, for the plaintiff in efror, insisted 'tKat the service of
the notice upon the attorney of the real plaintiff, was insufficient to
draw from the plaintiff a paper which he must be presurped to
have in his possession. [Clay's Dig. 491.' See -Meek's Sup.
117.] The case in 6 Ala; Rep, 257, is unlike the present-, There
the notice was to aid in giving effect to a remedial statute; in
other cases attorneys should be considered incompetent to accept
service, unlegs they are expressly embraced' by statute; The
Court seemed -to reqiaire the production of a license, though adi-
plbma would have been sufficient.-
' A. B. Moore, for tlie defendapt. ^, -, j"
COL<LIER,C. J. — The notice, it is true, does not entitle the
cause as being brought for the use of the beneficial plaintiff, yet
we think the designation of the parties was sufficiently precise to
have enabled tlie attorney to understand in what case it was pro-
posed to use the paper as evidence.
Our statute in totidem verbis declares, that in all cases pend-
ing before any of the Courts of record, "written notice to ihe at-
JUNE TERM, 1845. 693
Simirigton, use, &c. v. Kent's Ex'^
torney of record, shall be as valid and legal to all* intents and
purposes, as if served on the party in person. [Clay's Dig. 337,
§ 137,] In Jeffbrd's Adm'r. v. Ringgold & Co. 6 Ala. Rep. 549,
a notice, was served on the defendant's attorney, in Lowndes
County, on Friday preceding the term of the Court, wheii the
cause was- tried, to produce a paper at the trial. It was proved
that the paper was seen in the possession of the defendant, in
Charleston, South Carolina, and that he had not lately been in
this State. We considered the notice sufficient, and rertnarlced,
that "If the party to whom the notice is given, has had prima fa-
cie sufficient notice to produce the paper, and is still unable to do
so, if he is unwilling that its contents should be proved by parol,
he may apply for a continuance ; but an objection at the trial,
that the notice 'was too short. to gnable him to comply with it,
would be listened to with little favor.? See also, Jackson v.
Hughes, 6 Ala, Rep. 257; These cases, if oth6r authority thgn
the statute itself were necessary, very conclusively' settle- that" a
notice to the attorney of a party, pending a cause, is notice to the
party himself. . '
The fact that the attoyney in the present case was retained by
the real, instead of the nominal plaintifi', we think altogether un-
important. Whethenhe represent ^he ope partJ|or the other,
either himself or his client' are presumed to be in possession of the
papers which may be material on the trial of the cause. If he
has them not then, he should advise his client of the requisition,
but whether he pursues this course or not, if the papers ai'e not
produced after reasonable .notice, then parol evidence will be re-
ceived. Although the paper demarded may be such' as belongs
to the nominal plaintiff, yet a notice to the beneficial plaintiff, or
his attorney, is regular. This is the necessary result of what has
been said — the judgment is consequently affirmed.
694 -' ALABAMA.
Marriott & Hardesty, et al. v. "Givens.
MARRIOTT & HARDESTY, ET AL. v. GIVENS.
1. A mortgagee^ or cestui que trust, may proceed to foreclose a mortgage, on
deed ofti'ust, ma .Court of Equity, although the deed confers fi power of
sale. , , ■ - . ■
2. Wheij a creditor procures a levy to be made upon persoijal property con-
veyed by mortgage 6r deed of trust, previous to the law day of the deed,
.the mortgagee, er cestui que trust, may file a bill to ascertain and separate
his interest and that which remains in the debtor, in consequencfe of the
stipulation that he shall remain in possession until the breach of the condi-
tion of payment . . •
3. There is lio necessity for the mortgagee, or cestui que trust, to go into eqiri-
ty to protect themseltes against a' creditor of their debtor, who levies on
/the propOTty covered by the mortgage, or trust-deed, upon the expiration
^ of the law day, as a claim then interposed under the deed will be Sus-
tained.
4. A creditor who alledges fraud in the conveyance of a debtqr, by a mort-
gage or deed of trust, cannot be prevented from trying this question in a
Courtof law, before a jury. ,
5. A stipulation in a trust deed, tosecui'e the payment of certain debts, pro-
viding that the debtor ishall remain in possession of the' property until a
naihed day, and afterwards until the trustee should be required, in writ-
' ing,by his cestui que trust, to proceed and ^ sell, does not extend the law
■ day of the deed beyond the time fixed for the payment of the debt; and
if a levy is made after tliat time, by a creditor, the trustee may protect the
property by interposing a claim under the statute.
6. The trustee, after the time fijce^ for payment by the terms of a trust deed,
is invested with the legal title^ and at law, is the proper party to contest
. the legal sufiiciency of the deed, and a verdict for or against him, if ob-
tained withoiit collusion and fraud, is binding aad ijohclusive on his cestui
• quttrust. ' •
7. When personal property is improperly levied on, the party claiming it
cannot enjoin the creditor "from proceeding at law, on the ground that an-
other person has interposed a claim to it by mistake. The true owner has
an adequate remedy at law, by suit, or by interposing a claim under the
statute.
8. After the determination of a claim suit against a trustee, his eestui que
trust is not "eptitled to re-examine the iquestion of title. On the ^ound that
he was a stranger to the claim.
9. When personal property, conveyed by a trust. deed, is levied on by credi-
tors of the grantor, and claimed by the trustee under the statute, his cestui
JUNE TERJM, 1845. 695
Marriott & Hardesty, et aL v. (Jivens.
que trust is not entitled in equity to restrain the creditors from proceedinff
in the claim suits, upon the ground that he desires a foreclosure.
10. When real estate Is conveyed by a trust deed, to secure the cestui que
trust, he may proceed in equity to foreclose the trust, and other creditors
who have levied their executions on the trust estate, are entitled to redeem
and therefore are proper parties, defendants to the bill of foreclosure. —
Query, as to the proper course if they contest the validity of the deed as
fraudulent, and;8lssert the right to determine this Question in a Court of
Law. ^^ . ' ' .
11. Under our course of practice, which does not permit a demurrer without
answer, whfen an objection is sustained against a bill demurred to as multi-
farious, it is proper that the complainant should amejjd his bill, or at least
be put to an election upon which ground he will proceed. Quere, as to the
practice in an appellate Covul; if the objection is overruled, and the bill is
heard upon all tlie distinct grounds. ^ . ,
12. When the claimant asserts an absolute title to slaves leyied on afi.the
property of a debtor, and the proof shows that a portion of these slaves
were.purchased with money or funds of the debtor, and that the bills of sale
were taken in the name of the complainant, the possession remaining with
the debtor, this is evidence of fraud.
13. The assertion by a cestui que trust against creditors, that the grantor in
a trust deed is indebted to him in a larger sum than he is enabled to prove,
is evidence of fraud,, unless the suspicion of- unfairness is removed by evi-
dence. A • '
Appe&l from the Court of Chancery^ the 39th District.
• This bill was filed by William T. Given,s, against certain ex-
ecution creditors of Ed. Herndon, und the case made by it is as
follows. • . .
Herndon being largely indebted to Givens, made and executed
two deeds of trust, conveying cqrtain real and personal estate to
one Jesse C. Oobb, upon trusts which will be -recited hereafter ;
one of these deeds is dated the 20th, the other the 21st April, 1840.
These deeds \vere duly recorded in the proper office. Afte;"-
wards, Marriott & HardeSty obtained a judgment against Hern-
don, and also against Cobb, the trustee, as partners, and procur-
ed an execution to be levied on the ti'UBt property, then remain-
ing in the possession of Herndon, and also upon four slaves which
were the idivrdual property- of Givens. Cobb, as trustee, inter-
pp^Qd a claim, under the statute,, to the trust property, and also,
by mistake, to the four slaves belonging to Givens, supposing
696 ALABAMA.
Maitiott & Haidesty, et al. v. Givens.
^hem to be included in the trust deed. The ckiim thus interpos-
ed by Cobb, was decided against him ; and 'thereupon the pro-
perty claimed by him was found- subject to the execution. Giv-
ens asserts, that he was a stranger to these proceedings, and
prays that the proJ)erty covered by the trust deed may be sub-
jected,to the payment of the debts to which it was appropriated ;
that Marriott anfi Hardesty may be enjoined 'from proceeding
against the trust property;, and also against the four slav.es, as
well as upon the clairti bond executed by Cobb and his sureties
for their delivery.
• Marriott & Hardesty, and Thomas A. Walker, are charged
with fraudulently combining to effect a sale of the trust property,
and with Herndon and Cobb are made defendants. Afterwards
Givens filed an amended bill, in which he alledged the indebted-
ness of Herndon as aprrounting to $17,000, and that this indebted-
ness arose fi'om the loan of funds iii his charge, as the executor
of one Mayberry, in the.State of Tennessee, as well as from his
own resources, and property sold to Herndon^ who is his son-in-
law. That he procured the deeds of trust to be executed to se-
cure himself, fearing the consequences of the revulsion which
then had recently occurred ; that the stipulatior^ in the deeds that
Herndon sho^d remain in possession until the trustee should be
required by Givens to proceed to sell, was induced, in part, by.
the relationship existing between him and Herndon, and from the
fact that' the situation of his daughter required the aid of some
domestics. Under these circumstances, and the deeds having
been duly recorded, he did not feel disposed to close the deeds
so long as he was not called on to settle the estate of Mayberiy.
After the execution of the trust deeds, he ascertained that Bright
& Ledyard of Mobile, had obtained two judgments previous to
the execution of the deeds, one for $2,371, and the other for $203,
besides -costs, upon which executions had issued. These consti-
tuting a lien on the trifst propert^y, were ■discharged by Givens,
and are insisted oh _9S an equitable charge against the trust es-
tate. It also alledges, Henry Burgess, foi' the use of Andrew
Rankin, and Caleb Garrison had levied executions procured
against Herndon, on the same trust property, as well as on the
four slaves owned by Givens. Thai Cobb, as trustee, had claim-
ed all the property levied on, committing the same mistake in
each of the claims, with respect ^to the four slaves ; and thatGiv-.
JUNE TERM,. 1845. 607
Ma«-iottr& Hardesty, et al; v. Givens. j
ens had become Cohiys surety in the claki Jbonds, without being
awai-ethat the claims covered hh) own skv^s: so soonns hebe-
camB''aware'*of the mistakie', Jie himself interposed claims in all of
the cases, in hig.-own name, to -the ,f()ur slaves bolonglng to, him ;
which cldim^, -as well ihose ©X Cobb as' his own, remain undeter-
mined, except that, of Cobb against Marriott & Hardesty. Kemp
an'd Bucky, had also procured afi. fa, to be levied . op the samq
property, and-aftef its return, a ■■ye^f?.-^«. which is in the sherifl['s
hands. . . ' , • • v
It furthei* alledges, that Cobb has removed from the county , of
B6nton, -wjiere the trust property was levied on, and is ineffi-
cient as a trustee, and incapable of protecting it,fron\ Xh6 combin-
ed assaults, of the cjeditorsi . . ' \ ■
■ It prays injitr^ctions. against Che several named creditors, the
removal of Cobb as trustee, and the sale of the .trust property, in
satisfaction of the debts doe to the complah^qpit, chargirig it.-with
the amounts paijd to discharge the irlcumbrsiBC^s.. to Brighfand
Ledyard. • . . • . . . . ...
Afterwards a supplemental bill was151e(^, which alledgesthat
Herndon.oh the 9th dayol January, 1843, was duly- declared d,
bankrupt, and was discharged from his debts as such ; and th?it
the said I^drndon had becorpe th6 purchaser of alW the interest
resulting to him under said ti*ust deed; at a sale thereof madcby
his- assignee. • ' . ■ *
The trust deeds, -which were Executed by Herndon only, re-
eite.the indeb4edn(Js5 to Givens, and the' .trusts, as follows, to wit:
The one 'of 20th April, An indebtedness^!' 821, "OOQ, by no^e^, thus
described — • . . . . •. *','.''
'Onedhted 30thOctobel-, 1838, atl3 n>onths; .' .j$4^8W ,
:• « . 10th . '^ ' 1839, at one day, . ' - 6,100 ''
.. ■*" l5th June, 1839; at one d.ay, . >6,ai0
••« 11th January, 1839, ht one day, ^ -. 2,750
^A receipt/ dated IGth January, 18^Q, , j ' 910
The property .conveyed is, divers tracts and lots of land,.onc
piano, two horees,' two head of Durt^am cattlp, all the household
and kitchen fui'niture, and several slaves. "Tol;ave, and to
hold, (fee. under the express stipulatiqn^ that the property men-
tioned as conveyed in' trust, is to" remain in" possession of Edward
Herndon until as liereinafter provided; that if the said debts shall
not be paid against' the 25th day of Decern ber, 1840, then when-
88
6i»8 ALABAMA.
Manfidtt & Hardesty, et al. v. Givens.
eV-er the said Givens, his agent, &Cy. shall require the. said Cobb,
in writing, to proceed in^xecutibn of the' trust reposed-in hinirhe
shall immSdiately take possession of ike propei1;y,''and sell the
same at public aution, to the" highest bidder, for cash, "at the court
house door, after gh^ing thirty days notice, and at three public
places in the county, and after paying the expenses of the trust,
pay -the said debts to -the said' GivtBns; and if -any thing remain,
shall pay it over to the said Il,emd(:)n; but if the said Herndon
shall, in good faith, pay the said Givens the said debts, and in-
terest, by the 25th day of December, 1»40, then the deed was to
be void. ' ' ,- - •
The second deed recites the indebtedness 0f Herndon to Giv-
ens, which it is intended to secure, as a large amount due by
promissory notes, as follows ^ ♦. ^ . . , .
One dated l-Oth October, 18^9, at on6 day, for ,' $6,160
,; •• * . Jlth January^ 1839,atondday, , ^,750^-
The property conveyed in trust by this deed, is 12 slaves, and
the trusts are in similar words as by the other deed.
• AH the defendants answered the, hill" except Cpbb and Rankin.
Such as are creditors, ptay their answers may be taken as de-
murrers to the relief soaghtv and to the bill for want of equity;
most of them deny all knowledge of -the alligations of the bill, ex-
cept as to the indebtedness of Herndon to- them sev.ea'ally.and the
obtaining judgment and exepution. They also insist, tha,t the
deeds of trust are fraudulent and lypid, and that they were made
with intent to delay,, hinder and -defraud cre)dito^s, themselves
among the number. Some of them assort that there exists' no
real indebtedaess from Herndon to -Givens, and that the latter
never had the abili^ to become the creditor ©f his son-in-law, to
the amount stated, either individually, dr as the executor of Ma-
, terry, and that hd has permitted Herndon to dispose of the' trust
property to pay his, debts, w.hen exorbitant prices could be ob-
tained for it. , Walker disdaims any interest in the subject mat-
ter of the suit. Marriott & Hardesty insist, that no distinction
was made by the jury, between the slaves- alledged by the com-
plainant to be his own, arid those which are called trust proper-
ty. They also assert that Givens was active irl aixUng Cobb in
carrying on the claim interposed, and once continued the suit on
his oWn affidavit. They alt deny fraud and conflt)ination, aftd
pray to be dismissed with dosts. .. >"'*.'•. ' »
JUNE TERM, 1845. 69»
Marriott _& Harde^ty, et al. v. XJiven^.
■At the,hc&ring, the. complainant proved the execQtion of the
deeds of trust exhibited ; andthqt the same were duly recorded
ih.the proper officerwithin thirty days afterwards.
it was also proved, by the proauctioh ef th^ certificate, that
Herndon was discharged as a. bankrupt, as charged in the sup-
plemental bill. ' . , / .>
The evidence on behalf of the complainant, in suppprt of the
consideration for the aeeds of trust may be thus staled:
. 1. A note dated 30th October, 1838, at 12 months, for $4,370
wa^ produced, purporting to havebeen^made.by.Edwnrd Hem-
don, E. L: Givens, and Robert L. Lane, payable^ to James- Cox
and Wm. T.- Givensj executors of J. A. Maberry, deceased.. The
hand- writing of the rpakers was proved before thg Master; and.
other evidence,' taken- by deposition, established that it was given
for the price of- skives pmrcha^cd by Herndon, at the-, sale of
Maberry's estate, and that the oth'er makers were his sureties.'^-
Cox, the other executor, prcnses that this jsofe was in his pos-
session in' April, 1840, aridthaton the 20th November of that
year, he put it in the hands, of his ce-exeoutor, GivenS.
2. As tothedebt described in thedeed as "due by note,dated 10th
October, 1839, at one day for $6,160, qo note, was produced by
the complainant^ but the deposition of Cox, the co-executor, estab-
lishes, that a debt for the &tim of $6,^10, was due by Samuel V.
Carnick and others, by note, and^tiiat bo banded this note to his
co-executor, Givens, who loaned it to Homdon. This note was
dated 26th October, 1837, p^/ijjle 12 months after date. The
deposition of. Hugh P.' Camifck, one of its m'akers, proves the pay-
ment of $5,500 upon it, to Herndon, on thQ-5th Npvember, 1838;
to one Samuel McGeeof f 100-, oh the 17th January,. 1889, and
of $300 to"W. G. Kdly, on the 7th Febltuary,1839. -A new
note for $316 Was «xecute^ t6' Herndon for'the balance due aftef.
the.foriner note, on the 8t.h' June, 1839, ,an4 as Carnick, sup-,
poses $195 w<j^ thgi p^ijd in .mon^y. All tl^ese" payments ap-*
pear to have Been raacje at Sparta, Tjennessep. These two items,
to wit: the loan of the Carnloknote for$6,410>.and, the one for
$4,370, given -for the |laves» are also proved by other .witnesses.
3. As to the debt described ih the deed as due by notq," dated'
15th June, 1839, at- one day, for $6,810, there is no , evidence
whatever, uhless that just stated relates to this,, and Dot td^ tbe,
other." ■ ' .,',.''
TOO ' . ALABAMA.' ^' .
Marriott & Hardesty, et al. v. Givene.
4.- A note dated lOtlf January, ^839, at 'one day. for ^2,750,.
was produced, parporting to '-be signed by-Herndon and oneRus-
sel J. Allejr, payable to Wm. T. G^ens and James. Oox, as exe-
cutors of MaberryV estate. Allen' states in his deposition that
ha executed it as Hernd(!)n's surety, and'that he^.believes it was
given for borrowed money. Edward L. Givcns states, in rela-
tion to this .note, that, some lime in 183&, or 1840, Kterndon came
to Alexandria, the resi«!ence of tJae witness, and Wm.'T. Givens,'
apd brought with 'hmi a blank, upon whicb were" written the
names of Hemdon arid Russel i- Allen. By. \he instructions of
Herndon and Wn>-. T. Givens, the witness wrote above the signa- .
tures, a note, payable to Wm. T. Givens, as executor of J. A.
Maberry, deceased, for $2,700, or' -thei'ejibout. Witness UA4er--
stood, from both Hemdon and 'Givefis, that 'the n6te -was given
for n16ncy belongmg to the estate of JVIaberry, and leaned fey
Givens to Herndonr. ' "»- ' • " '.'..•'>''>•''
• *S. As to the debt described in 'the deed as "a receipt, dated J 6th
Jaftpscry, 1839, foi',$9^,theonly tcStinj'ony is'that-of Edward L.
Oivens, who says he IvasseeYifl reeeiptin the'pbss6ssionof Wm.
T. Givens, which he'nndorstood*, botl> froTn Grvens and Herndon,
was given by the latter for moneV collected by him ih Sparta,
Tennessee, and belonging to "Givens, as ttie executor of Maberry.
This receipt, as the witness believed, was for about $900.
ThJe depositions of J<!>seph Davenport, and John F. Pate,; tar
ken in behalf of thecorarplakiant, declai'e, in answer to tliecross-
interrogatorieSy that they> visited Al^ama' in 1843, and looLfrom
Wtn. T. Givens a deed of trftst, on. fands and* negroes,, to sbcure
Aflen Campbell' and Wiltjam Mbrriss^ who were Givens' sureties
for, his ad/ninistration, as one of the ext^outors of Maberry's es-
tate ; this,fleed of.trust was intended'-to cover t^e claina duefrohi
Herndon "to^tbe" executor, ©r executory; Pate holding Givens re-
sponsible, as the letter had made 'sfettl6ment foi* thfe amouijt, and
Pate being the guardian of the n^intjr heir's of Maberry^ These
witnesses,' as well as Cpx, the cor^xecutor, speak ©f^ilo other in-
,debtedhess*fromHermdon; than for the Carnick note, and the 6n&
niade foY' the slaves purchased at the i^ale,.and* answer that they
know of no oth6r, if .any such existed. ■ , ' * ' •..•.•..v.
- The depositions of Thomas R. Williams, ChristdpherHaynes,
and WilHamC. Kelly, established, thiU about thetime-of theexe-
cvition of the trust ^eeds, Hemdon had ^eni many of the slaves
JUNE TE>tlM, 1845. * 701
Marriott & Hardestyyfet &1. V. Qivcjis.
conveyed b,y these' instruments' fo thQ counties of Greene and
Por^y; that the- two first named persons w«re employed as
-agents-for the BAnk at Rome, to pursue the slaves with an at-
tachment'; that they overtook the slaves, and levied ori them' in
Greeno couVity, in the possession of Keljy, and one BrqWn. Kelly
left Benton county aftdr tliQ suing ouf the attachment, and before
the exeoytion of the deeds of tnist, which however he had neard
^pokqn of. He passed Williams' and HaYnes on the road, and
was invested with the power -to dispose of :the slaves as 'he
chose. ' . ■ ^ . ' ' . ' ^- ■ "' •
, The, charge, insisted on, by some of the answers, that Givens
permitted Herndon to deal with the propetfty conveyed by tlje
trust deeds, after thela,W'day, in payment of his debts,4s. attempt-
ed tahe sustained by the depositions of TJiom&s R. ■ Williatps,
Christophci:' Haynes,-and *VV. C. Kelly. Th*e twp first named
stole, that Herndon, in 1841, sold to the Bank "of Rome, a, tract
of landxjf 390 ©rmore' a:crcs, and feix or sevep sl-aves, covefed by
the deeds ; tJKit.the contrACt was made ih the presence, and with
the assent of Given^, who executed, aquit claim in writing, to the
land, which was conveyed by. Herndon. Kelly states the sale^
by Herndon', of some five Jots, on, two of which were house^.and
als©, that the purchasers wgte* informed they were covered by
V the deed, and that Giyens would m*ike titles. But he knew no-
thing of his-own knowledge of any titles .being- made by Givens, "
or that he took any pad; in ttje sale: , ■' .
As -to the four slaves, which the bill aseerts are the individual
property of Givcns,.but claimed bj'Cobb, under a mistaken notion
that they W9re included in the ticedaoftrusft thefoispoevidence
of ownership oh the part of the complainant. On the p&i't of the
defendant it was proved, by. the^deposition of LawreiKC' Bfoek,
that -he sold a slave named 'Heni:y, one of fthethreCgJaycs^ to
Herndon, in February or March, 1841, and.received payment
from him in notes due to Hbrhdon & Kelly. . The bill 6f -styJe
was made to (livens, at the request of.Hfcrndon. ' Kclly*§ depo-
sition * proves,, thai when Schuyler' and Bill, two others of the
slaves were sold atsheriff''s sale, Schuyler was bid. oflMjy one,
Copeland, but paid for by.Horndbn; but who furni,shpd thontx)-
ney^ the witness did not know. Kelly bid olT l3ill,Qnd. to.ok. the
bill of sale in his own. name. He furnished half 'the money, and
Herndon the other halfi . Aftci'wards, he sold the skive to Givens,
702 ALABAMA.
Majridtt &'Hardesty. et al. v. Givens.
and executed a bUl of sale to him ; botii these slaves have re-
mained in Herndon's possession; ever ^'moe the sherifTs sale. '
What c6nsideration was paid by Givens" to;Kelly, is not stated
by the witness. . . • ' . •.•
At the -final hearing, thfe, Chafacellor decreed a perpetual injunc-
tion as to the four slaved -as'^ftcd by the bill to belong to Givens ;
sustained the trust ' deeds, and directed the master, to state aft ■
account of the indebtpc/ness from Herhdon to Givens, as well ast
the amoilnt paid by the latter on' account of the previous incuTn^
brance arising out t)f the judgments in favor of Bright and Led-
yard. ^ - » • , "^ .
.The master stated his account, consisting lof these items" : "
' 1. The note given on account of thepurchfise'of slaves,^with
interest, 85,562 12. . '•
2. The sum due for the loan of the tarfiick note, and interest,-
$8,621 45. •'•"'' ■•
• S. The amount of the nofe for two thousaftd peven hundred
and fifty dollars, and iftterest, $3,960 6l - . . • •
4. The amount paid on the prior incumbrances of Bright i&
Ledyard, $'l,708 23. ..
The defendants excepted- to this report, but the exceptions need
not be stated, as the judgrftent hei'e turns on other reasons.- The."
report was confirmed, and a decree ma.de directing a sale of the
trust property, to satisfy thte ddbts due to Givens.
The defendants appealed from this decree, and the creditors-
here open the cause entirely "bytbe-se'vcral assignments of error.
I*RY0R and T. A, Walker for the appellants rh^de the follow-
ing p6ints : " - ' •' _.
•1. There is no equity mthfe bill, inasmuch as the- party had
a clear remedy at law, -which ha$^ beei) determined, so far as
Marriott &;Hardesty are cohcerned. Cobb rcpresented the in-
terest o^ his cestui que'triiSt^ and was. com potent tddo so.
.2.*, As to the four slav.es asserted to be the property Of the cdra-
plainant, there is no redsoa whatever that the cfaim suits shouH-
not proceed. • .' ••
3. The demurrers shouId.haVe been sustained, '1. because the
bill is multifariods in confounding the remedy as to .the four slaves
with the remedy for tKe trust property. 2, because improper
parties arc joined as defendants, • 'There is no reason why one of
JUNE TERM, 1845. r63
Marriott & Hardetty, et aL v. Givens.
the creditors 'should be at the delay and cost of examining the
matters in disipute. between the complainant and Qti-ier creditors.
3,^ The, matters -introduced into the amended bill are properly
matters for a supplemental bill, and»one good pause'of demurrer
appearing on the record, others may be insisted on in this Court.
[§tory'sB.P. §932,443.] • .•
4. Th& filial decree is erroneous, 4. BeQauseihe cemplamaht
did not prove that the debts named in the trust ideeds-were due
and owing to him. • 2. The deeds were not made upon a suffi-
cient legal considerartion to support them as against creditors.
3. The deeds were not made in good faith. '
The evidence describes debts which are essentially different
from thosQiStated in the deeds, and the bilj contain^ no allegartion
of mistake.. Conceding that an indebtedness on ac'courit ctf the
Car«ick note is made out, that is not the ground of-th(i deed. The
note for $4,370 is due to another person as well as the complain-
ant, and no- consideration is pr6ved for the nota of ^2,'5'^'0. The
mere production of the note, without proof of -the consideration,
is not sufficient against 'a creditor. [McCain v. Wood, 4 Ala.
Uep. 258 ; Smith y. Acker, ^3 Wend. 653, 679 ; Hanford v.
Aulden, 4' Hill, 271, 295; Russell v. Woodward, 10 Pick. 408;
Blew.v. Maynard, 2'Leigh, 29,7
5, -But if the consideration of the doedfe was sufficiently estab-
lished, still they are. void a^. having the effect to defraud credi-
tors, and the proof is that they were made for that purpose.
1. On 'account of the pretended consideration of debts w^ich
had no elistence, the bill alledges that the complainant procured
•the dodds to-be executed,^ If was then a fraudulent attempt to
cover the property of He'rjidon from* other creditors. The bill
alleges-that the seqond deed was executed to secure several
claims not embraced by the first, tbOs seeking to impose the're-
citals in the d^eqds as proof that there were different debts of the
same amount. . : . , -
2. 'I'he. reservation of the use of the property to Herndonis
such, that other creditors must \)e delayed. [Garland ,v. Rives,
4 Rand. 282 ; 2 B. Monroe, 239.] ' >' '
As this possession was liable to be defeated at every moment,
by Cobb, the trustee, it was not such an interest as the (Creditors
could levy on and sell. [Otis v. Ward, 3 Wend. 498' \ 2 Cow-
en, 543; Harford X Artcher, 4 Hill, 271.] ; • • ■ > . •; • ^ •
104 ;. .: ALABAMA.
Marriott & Hardesty, et al. v. Giycns.
3. The deeds imd theeflect to defraud Credkors then, in exist-
ence, and were niade with this intentiop. The proof , shows they
were madq about the time whenvthe Rome Bank sued' out an at-
tachment, and the property was run off.- In addition .to this,
agents were invest^ \yith authority to sell the slaves, indepen-
dent of the deeds. , [Head v.Folonertack", 8 Watts, 4.89 ;xDamer
^i.'BLckering, ^Pick. 411'; Davis v. Mcl.aughlir), 2 Wend. 596 ;
Cojl ins' V. Brush, 9 Wend. 189,] . -' . ., ^ /
: 4, Poissession was retained by Hetndoh untN the- filing of the •
-bill, syth Pctober, 1842, nearly two years after the. law day, and
there is'no sufficient excuge orreason alledged or proved for thus
favoring the debtor. This is evidence of fraud. {Camp y. Oamp,
2 Hill, 623; ^arford v. Artcher, 4- Hill, 2^1 j Wis,wall*v. Tick-
nor, 6 Ala.' R. 178; White v. Cole, 24 'Wend. 131; Collins v Brush,
0 lb. 198; Deene v, -Eddy, 16 WencL 522.] When a sate- is
impeached for frajid by creditor^, k is the .duty of tbe party claim-
ing to rern'ove alKdouBt of ihe fairness of the tratisaction. [Stru--
per V. Echaut, 2.'Whart. 302;J ■ .• ' • • ' ' " .
5.' T^he bin shotrid-contain an allegation thiat tbeproper-ty was
not friore.thaf>suffici;ent to pay the debts secured- by itj w-ithout
3pc^ allegdtioh th&" bill is fatally defective. [ Widgo.ry v. Has-
kell, 5 Mass. 144 ; Bprden V. ^ymner,'4 Ptek. 265^ Struper.y-.
Bchart, 2 Whart. 302.];. If the -deed- as to t^Qoverplus^'is fraud-
ulent, it is void. [Murray v. Rig*s', 15 John*^ 586 ; -Meek^jr v.
Cain, 5 Co wen, 547.1 - ' • ■ -^ . '. •'♦•♦.,.*'
. . • • . • '. , «', '.,'-..- •f-A' • -
•Wa*.^. Chilton and S.'F.TlicfE, contra, ;• •. •■•* . »•.
1. The possession remaining; .with ,the grantor, is cohsistent
with the deed, and therefofe no badge of frautl. :
, 2- As a debtor may la,wfully secm-e one, creditor in- pVeference
to another, hyg m£^ do so, notwithstanding the cnreditor,whois»not
to be preferred^ ei^eayors to obtain a preference by attafchmeftt.,
The right fo prefer cannot be. impaired .by any effort of the credi-
tor, which is r^ot contplet^.at the -time of conveyance^"
3; The ^dmissien of Herndon, that.it was his intention to delay
the Rome Bank, cannot defeat the conveyance. [McCain v.
^ood, 4 Ala. Rep. 2p& ; -Jorxes v. Norris, 2 Ala. R-ep. 526 ; Ha-
den V. Baird,,! Litt. S. Ca. ^0 ; Turpin v. Marksberry, 3 J. J.
JM* 627.'] - •
4. It was competent for Giv'erjs to consent that ij^rndon should
JUNE TERM, J 845. 705
Marriott & Hardesty, et al. v. Giv^ns.
sell portions of the trust estate, jjnd credit ,th^ notes with the pFot
ceeds,. and the notes were thus credited. • ■ ^
5. If the defendants here claim any thing.ouf of the transaction
with the Rome Bank, they must show* an existing- debt. [Lelan
V. Hodges, 3 Dana, 43^.] " •; •
6:.- But if the conduct of Herndon was 'improper, Givens isxtot
connected with it, and therefore cannot be affected. [Garland
V. Rlves,^4 Rjind. 282'; Roberts v. Anderson, 3 Johns. C!;377;-
I'Story'&Eq. 378,75, 119,,396/399 note, 402, 406,40^,407.]
7, The discharge oC Herndon, under" the bankrupt law, is a
discharge of alj'his debts. [McDougald v. Refed, 5-AIa. Rep*
8L0 ; Bank. act,. 2 sec. seft. 5.] .And by ihe discharge, the^ien of
thje.cre'ditors uptJn his estate was gone. When this matter \Yas
disclosed, by the supplorpental 1^11, the creditors becamb ^trangprs'
to.the suit, a,nd had no right' to* prpcee4 furthej. {Dunklia,v.
Wilkin's, 5 Ala. Rep., J 09. J -•- • , * .'• »• •*.■.,. ^
"8. The bHl seeks to. Sepamte the int^rfest^of* the grantor,
which wassubjeqt.to levj?*, from that ofi the cestui >qjie trtest,
whielvis not the subjecf. df sal^ • |Willijim3. v. Jones, 2 Ala.' R.
770 ;■ lb. 6G4.] So it seeks to remove the trustee as ingompe-"
tent. . The mon^y. paid to extinguish the prior lien "Of Bright &
Ledyard, is a m'atter of equitabl(> jurisdictipn. [McMillan v. Gor-
don-, 4 Ala. Rep. 71G.] ' So-is also the.danger of wasting the trust
fund.''[Calhounv-.King,-5lb. 52,3-]" - * • .. ■ • •
9.. -Neither the niistake*' oJ[ Cohb in interposing his clairp;
which in itself is a sufficient groun^ {or relief, as the contplainant
may become liable ,iOn th(ib(?nd givenv nor tliis unsuccessful claim,
w;H preclude relifef, as- a separatioia of'the fund. is nccessayy. (Cal-
laway v. McElroy, 5 Ata. R,cp/3b4.) - \
, 10. The deeds are. in the usirail form, and of course, not frauds
ujent per se: • [Pope v; "Wilson, January Term, ^1845.] Nch: asd
they shown to be fraudulent. '[Steele'. v. Kinkle^ 3 • Ala. Rep."
.352 5 Jones V. Norris, 2'.lb» 526 ; Oden^.RippetO, 4 lb. 68.} •
GOLDTIIWAITE, J.— This bill prosetitsseveratdistinotfea-
tuVes, which it is proper, to advert to, previous to the considera-
tion of tho questions raised upon the rpcford; .^ One of therti is,tbat
the complainant assorts an absolute ti^e to four of the staves iji"-
volved in this controversy, and, as to them scekg no ultim'at6.d{s-
position by the ,<Jecree ; bdt only to restrain- "the creditors of a
89 ' ' '
,70^ >v ALABAMA.
Marriott & Hardesty, et al. v. Givens.
third person- from pursuing these at law, in satisfactipn of their
claims against him ; in other terms, the bill claims that, the Court
of Equity shall interfere to ascertain where the legal, title in these
slaves is. -The only assigned reason for this interposition is, that
other personal estate, with some real propeity, was assigned by
the debtor to a trustee as a security to the complainant for cer-
tain debts du0 to him; and that this trustee, supposing these
slaves' to be conveyed to him by the dc^d cpnveying the other
property, by mistake interposed "a claim to them, in common
with that other property, when all of it was levied on by execu-
tions at the suits of creditors of that third person ; and that the
complainant was a stranger to. this claim. Another feature .is,
that personal as. well as the , real €state conveyed by the . tf ust
deed, has been levied on by thfe several creditors of the grantor 'Of
the deed, and the common' object o£ the biill is to restrain those
creditors from pi-dceeding at law against aD,y of the property thus
levied on. The reason for this* interposition is assuwned to atise
out of the right which .the complainant has tp foreclose his trust
deed, and that this right is interfered with or, obstructed by their
leyies. - . . • ' , , ■
. :li .We pntertain no do'uttt that' a, ruortgagee^or cestui que. trust
may. In the first inst^npe, proceed, in a (tourt of Equity to fore-
close his mortgage erdeed.of trust,.. although by the deed" a pow-
er is conferred to sell. [McGowan v.^'Br, JB. at Mobile, January
tprm, 1,845.] ,,'•■.' .'
2. Nor is it a questrQp„w)ien a creditdt, previous to the expi-
ration of the la\Y day named in ^'mortgage or deed of trust, pro-
cures a Ipvy.tQ be made, that the* mortgagee or cestui que trust
may file a bill to ascertain and 'separate his interest from that
which remains in the gran,toE,' iri.-consequence of the usual stipu-
lation in the deed that he. shall retfiin- possession of the pfopertyj
conditiona,lly conveyed, until thfe forfeiture of the condition. [ Wil-
lia^as V. Jonea;*2 Ala. I^ep. 3J19.] In4eed,' it results from former
decisions by ihe Court, thg.t the interpositioii of a claim under the
statute, Jjy the mortgagee or. trustee, will' be ineffectual, if made
before the expiration of the law day, as until that tinne the grantor
is entitled to retain the property ; and this right of possession for
a determinate period, ~is su|)ject to- levy and sale, -and carries with
it the equity of redemption* The. consequence of the premature
ipterpositioa of at^ilaim by the ti:.ustee, &c. undier such circum-
JUNE term; 1845. 707
__, . -f . l! : ^ — :_
Marriott & Hardesty, et aL v. Givens.'
stances,- ia* that the claim suit rpust be deterrokied against the
claimant, as hns,title is inc6mplete unfil a forfeiture of the condi-
tion-of the deed:, In view oftht§ difficulty, we hate several times
suggested, that another effect of a premature' «laim^ might be to
conclude the title of the trustee, &c.-, upon the- idea that the deed
itself hi ight bb questioned as involved in such a suit. [Williams
V. Jones,' 2 Ala. Reg. 319 ; P. & M. Bank v. Wims, 5 lb. 770.];
However this^may be,.when the claim is prematur§,*the cas^ last
cited establishes that the trustee, '&c., when the law day has ex-
pired; may intqi^ose his claim upder the deed, although the tevy
was previously made... To the same effect is Magee v. Carpen-
ter, 4 Al£(. Rep. 469, and'Pavidson v. Shipman, 6 lb. 27.]
3. Tl^e consequence of these decisions is, that' there ^s no ne-
cessity'lOi' the mortgagee or ces^wf que trust^io go into equity-to-
protectHhemselves-a'gainst the 'creditor of 'the mortgagor, unless
the levy of hisexecution i^ made before the expiration of the law
.day. And the. same luate- "s^ems to govern' any creditor of- the
property wliQn the rriortgagee or trustee is invested by- the deed
wilihlhe power to determine the posstession of the grantor m the
property coijv€yed." (See cases la^t cited.) ■ - •
4. It seems thisn to be clear, that the st^tu^cauthortsing a olaini
suit," invests the 4)erson. whose property is lefvied on, with the ri^ht
to have his 'claim determined at law ; but he^e the coijV^rse of
this- matter is presented ; and the question arises, whether a cre-
ditor alleging fraud iM the conveyance of his debtor, can be .pre-
vented from tryiqg th&t question in a court of law before a jury ?
By thbcoursfe of proceeding, under the conjmoii laSv, this ques-
ti'on was. genferally tried' in a suit against the sheriff for a false
return of nvMa bona,- if he omitted to levy; or In an afctiqn of
trespass.or trOver, if he improperly levied on* the goods of a third
person ; or it rtii^ht be in. an actioiji directly against the plaintiff
for directing the levy ; (k m trover or detinue against the"~pur-
chaser at the sheriff's sale. In relation to real estate, the same
question was usually tried in action of ejectment by the purcha-
ser under- the sheriff against the tenant in possession,^^laimingun-
der the disp.uted title. Independant of these modes^ bf ascertain-
ing the fact of fraud, by. a legal suit, the creditor wa^ permitted, '
in equity, to-set'aside the fraudulent conveyance, as anobstruc-.-
tion to his legal i-ight. ' .
From these principles it seems clear that a creditor's right to
* .V. ' • %• .
nm- ' ' ALABAMA. > . ' .. '
^ Marfiott & Hardesty, et al. V. Givens.
attack a conveyaace for fraud* is one which may be assorted
either at law or in- equity, and we have been^unablje to meet with
any adjudicated case which, warrants the idea that its determina-
' tion can be withdrawn' from ihe forum which the creditor selects.
The levies, whicl>it is the principal -ebie.ct ofth0.bill to enjoin,
seem, all of them, to have been made after the -expiration (tf the
t^erm fixed by the trust deeds for , the payment of the debts ; but
ii seems to have Seen supposed the property "must necessarily
bavfe. been condemned .y^.ithout reference to; the c|uestionx)f fraud,
from the-circumstanoe thltr-the di^eds of trust b(3th provide, nd;
only that Herndon, the debtor, should remain in possession of the
-' property until the law <Jay, but also untj^ the trustee should be re-
squired, inHvriting„by the (^omplainam?; to proceed and feell.. Un-
^ ,.der ordinary circumstances, th^ trustee is considered as 'repre-
; ■"'' ". sentlng hi? cestui que' trust, and rarely, if ever proceeds iii .oppo-
»^ sition to his will ;.the insertion of this stipulation was /probably
intended, at least sueh.ife the presumption, considering the deeds,
to be bpnafde, to save th6 debtor, frorp the captious of' vexatiqu^
, interfefence o^^tho jtrustQ^ ;'. but wq think it has no -effect to -open
«• . the la"w day of the deed- from a*,de'finite io an indefinite period.
It follows then, that-the trustde wa^ authorised, under the deeds,
■ to interpose his claim to. the property,; and. at' tl^e time he did so
, 'there was no interest remainihg in i^e .debtor which 'could sus-
tain the levy, always supposing the deeds *as bbna.Jtdo, [P. &
M. Bank v, WiUis, 5 Ala. Hep. 770.] ' ; • ' ■ .. "' .^ .^"
,6. The trustee in a deed of the description before us^ is ihvost-
edwith the hgal title i;o the property conveyed, and is,. at. law,
the proper party to conteet its legal suffi.ctenoy; from»this pjoposi-
Uonit foIIo^ys, that a 'verdict either for or against him, ifobtahied
. witnout collusioa or fraud, is binding and Gohclusive.on the cestui
que trust. J. ^ /. .' ' t . ' ' ; . ' . . .'.* . • -^ ' •" *. .
The;ipplicafi6Hr6?theseprinciplBswffl. enable u**to- asc^ptain
what and .how much equity the bill under consideration contdins.
■Y.- Astof the.fouv slaves asserted to belong absolutely to the
' complainant^ there is rio equity whatever for the mistake of the
trustee in claiming .them,.-or even a wrongful claim Jby him .could
not Aflect the true owner. His remedy- as to these, was either
..to pursue the common Kw modes pf relief or he might properly
. propound a new claim, in his own name, after f delivering the
Jll^IE TERM, 1845. 709
Marriott & Ilariesty, et al. v. Givens.
slav€& in discharge of tiie condition of»the bond binding him to
deliver them. , ..' . • ■ " • .
' 8, So likewise as to'the personal property, levied on at the
instancb of M^rri^tt &, Hardfcsty, there is no equity ; becau^
.their -right to have satisfaction put of , it wj}§ ascertained by the
verdict upoh th^ claim interposed by the trustee under 4he deeds.
According to what has already- bqen ascertained, this verdict
must have Ijepn predicated oia the faet. d^f the» invalidity of the
deeds, because, when the ctaim was'^interposed, there was no in-
terest remaining with'tbe debtor which Goldd defeat the claim of
his trustee. , ■ ^ ■ . ' ■ • • * . • . '
■ 9. The same '^ant of.equity'is apparent as to all the personal
property covered by the trust .deed,.and levjed on by the other
creditors. ' As*.t« this^tliey had asserled-a legal right which they
are entitled to have determined in. a Court of Law. • The levies
being made after the law day, there is no interest in the debtor
w^iicb 'can defeat the claim' oh' that account ;-,andthe only ques-
tion involved is Ihe validity of the deeds' oftrust The determi-
nation of these suits iji favor of the one or the other of the seve-
ral parties, is dedsive, so -far as that creditbr, or the complainant
is concerned. •. ..'',••■•
10. With refe^^ence'tothe'^real estate, we consider the bijl. as
containing upon its face- a proper rfnd. legitimate equity ; and that
all the .defendants aye properl;^ wiade parties. We have, before
said, that a mortgagee or cestui que trust might-come into equi-
ty fo foreclose .his morigage, or deed of'.trusi-. even though a
po\ver to selKwas one of the terms. • The defendants are alt
judgment creditors,-and aeconding to many ■ authorities, as such,
"Woiild i)e. entitled to redeem. [2 Stofy's ^q. 4" 1023 ;. Story's
•Eq.Ek.§ 193, and cases there cited.] •Cpnspquently they are
proper parties to d bftl to foreclose, ." it is -to be* reinark^ci hpf-e,
that with respect to the real estate, the bill does -not allcdge any'
matter from, \vhich it can be infeiired ihat the creditors h^ve ^n.-
forced'the -levy up©n this desgriptionof the property,. of consum-
mated it by, sale ; nor do they pray, that tljey.may, as' to this,
be permitted to Qontest the deed in a; Court o( -Law, ppon. the
gipund.of fra,«d. . What would be the effect of -such -a .prayer,
and the course to be purslied, arq matters, which we ■decline to
consider at this time. • . . . . . ., .,•• . . .
1 1. Having ascertained- what is the equity of ihe bill, we shall
«^,
, . « . . ■ ..
^ Marriott & Hardesty,«t al. v. Givens.
proceed to the objection that it is multifarious. . That it is so, to
some extent, is apparent from what has,jth'cady been said. There
is no connectipn whatever betv<feen the trust property and the
slaves to which- an absolute title is asserted ; and whatever inter- .
est Herndon may have in the trwst property, none in him is shown
fijr these slaves. Multifariousness is the improperly -joining in
one bili, distinct and independent matters, thereby confounding
them: [Story's Eq. PI. 271.] But it is said, that although a bill
is ordinarily open to objection, for this reason, where it con-
tains.'two distinct subject matters, wholly disconnected, yet if
<^e of them be clearly "without the jurisdiction of equity for re-
dress, rthe bill .will- be treated as if it' vi^as singlfe, and the .Court
proceed with the raattter over which jt has .jurisdiction, as if that
constituted the sole' object of the bill. [Id. § 283.}' In Varrck v.
Sfnith, 5 Paige, 160, the proper course is said to be, to answer as
to the proper matter, ai;id to demur to the othej;- for want of equity ;
or-the defendant may answer as to both and make th& e"x(Jeplioxi'
as to the latter at the hearipg. It might be asked how- it is if
both the misjoined matters ai-e of equity jarisdiction ? ' • ■
Whatever ma'y be the rule elsewhere, and inCourts^ which
permit a demurrer separate from ^an answer, we think, accord-
ing tp our practice, when a demurrer for this cg,use is interposed
arid sustained, the compjainant should be put to an amendment
of his bill ; or, at. least, to an election for whith cause he, will pro-
ccfed. . . ,.
It is difficult^o say what the proper practice is in an appellater
Court, when the cause has teen heard after -a deVnurrer f6r this
cause overruled, and determined upon- both the distinct matters.
As this matter is immaterial in this case, we shall leave it open,
iand proceed to thq examinationof the decree uporiithe merits.
1,2. As to the slavps'claimed to Jbe the absolute propehy of the
complaitiant, it would, from tte view already taken,. be^unnecesr
sary to sbcy any thing; but for the influence th^ assertion of this
claim,'if unfounded and fraudulent, may have Upon the deeds of
trust. There is atotal deficiency of proof by the complainant to
sustain the assertions of his bill ; but beyond this, it is clearly prov-
ed, as to. one of the slaves, that it was purchased and paid for by
Herndon, the- debtor, with notes due to him and a partner ; and
that^ th^ seUer, -at his request, made the bill of sale to the com-
plainant. Another was purchased by Herndon 3t the sheriff's
JUNE TEfeM, 1845. 711
_ L_ , . j^ _
JMarriott & Hardesty, et all v. Givens.
sale,- through the medium pf a third person, an(i the third by him
and another persoA jointly, in' the name of the other person —
Herndon paying one half of the money, and the, slave being con-
veyed by the part owneV to-the complainant, without any proof
of a consideration. . Independenl too.of aU this, the proof is, that
all the slaves were in Herndon's possession for a long time, ancj
untiUeyied on< We- are forced,^ by this evidence,' to the conclir-
sion, not only that the -complainant is without just title to these
slayes, but also, that he is asserting "a simulated one, to withdraw
Herndffn'^ propprty from the grasp of Ws creditors.
It is not material to consider what influence evidence like this,
in relation to one branch of the ^ause, will have upon the oth?r,
if ^hat'is apparen1;ly fair; because^ in our judgment,, the deeds, of
trust were executed byHc]ciidon as a cloak to cover his proper-
ty, arid if the- complainant was innocent in the first instance, af.a
participation in t^iafinten^ign, it is more than questionable if iie
ha^ not-made hirasetf i party to it by attempting to carry -QUt'the
unlav^ul purpose. " * ' ' .*
13.' The indebtedness of Herndon is declared by the '^ceds of
trust, to be something over $20,000, bj' notes of different dates,
in addition to a d^bt of $900 by a j^geipt. Tiie only notes prov-
od as exiiibits, anioimt^to little more than $7,000, in both case$
ekcluding interest! No reason is assigned ih' the .bill why; the
proper vouchers cannot be produced, g,n.d the testimonyiaeqiial-.
ly silent. ' There is no. attem|)1? whatever tti- Sustain the deeds- as
to' the note of ^6,800 — the largest of the ejiuiaierated suras, and
tiae evidence in relation to theoiher iteniis,- imJyces the>sijiSpicion,
wh^n (Critically examined, t^jat nothing is due to the complainant
individually, and nothing more than? the'ampunt of fhe n9teS ex-'
hibitfed to him as co-executor of" Maberry.. . The .co-exeCutor is
examined as a witness, and proves beyond a doubt ih^t Herndon
never had any transactions. with the executors^ within* his. know-
ledge, except the purchase of sonie skives, for which the $4,370
note, which is exhibited, was giy^n^ and" the loan by thecompjaicf-
ant to him of the Carnick note, belonging to the estate, for $8,410.
The $2,750 note, jwt exhibited, is payable' to the complain^t
and Cox jointly,>as executors of Maherry. How could this debt
have become due t© the estate without the knowledge of the G)Qt
executor, unless it. was a security to the complainantfor' a'por-
tioa of the Carniok note? . The witncssea say it VYasgiv-en, bs
*«
71*2 ■ ALABAMA. - .
Marriott & Haidcsty,^t al. v. Givens.
they understood, for borrowed money, and this is consistent only
with the circumst&nce that the note of the estate was lent to
Herndon. One of the same witnesses speaks of seeing a receipt
. in the complainant's hands, for money collected in Sparta, Ten-
nessee, for 8D00. ' Where that recTeipt was at the hearing, does
not appear, but the testipiony of the Carnicks shows, that they
l^aid their note'at Sparta ; and -it is not a little peculiar, that $910
should be {he precise .balance duQ upon the note,, after the prin-
cipal payment. In the absence of the note» which if given at '^11,
was evidently so for the Carnick note, and the receipt, without
any attennpt to account for them, the ir^fevencels irresistible, that
-both are settled, and it is quite strong that tlie 82,750 note wjis
given upon the final liquidation"of these two -items, as otherwise
there is n6 explanation why the 'note was for mopey borrowed,
and is made payable- to the executor^ of the estate. ■ We think it
clear then, .that the • only judgment wjiichth'e laW authorizes us"
to pronounce upon the oase,' left in this condition by the evidence
is, that the deeds describe debts which ai'e not-shown to be due;
and the inference is^proper, that they were executed, not for the
bona fide purpose of securing debts actually due to the com pi ain-
anti but that making use of that indebtedness and simulating, it to
be gVeatly more than it was, the chief intepUon was to hinder and
delay creditors. ' •' . ■ . • ■
Without Qnteririg into. the question, whether the ccMTnplainant
.nfiig^it avajf himself of deeds executed -With siich a, purpose, *if in
paint effect he was. ignorant, of it, we think he is' entitled to
no beni2fi;t^ when.ije'lras'.beejna.payty to the attempt to carry the
purpose into effect, by .pretending ta> beta la'rger creditor tlran he
really is, or what prbdlices -th^same .effect — than he is ^ble to
pfove himself to be... --No rilileis bettor established, oris- riiQre sal-
utary in,its;effects»thqn that whijqh dectares k the hnperative du-
ty of thegtanfe^ in a deed attacked by^ creditors for fr'auijl, to re-
'itiovcany suspicion, of unfairness. "ft-om the transaction. [Strup-
er V. Eckaft, 2 Whar. 362.*] This has not been doqein the pfe-
' sent ease, and the effect o/ such suspicion is to pr.onoijnce against
the validity- of <he» deeds. ' ' ' ' ' .
Here our task, neee^arily.a painful one, ends, as the otj^er
questions are unnecessaiy to be determined ; inasmuch as the
supposed incumbrance- of Bright&'Ledyard cannot be tacked to
' an invalid -deed ; and the question arising out of Herndon's bank-
JUNE TERM, 1845. 71-8
Hunt V. Test
ruptcy and subsequent purchase of his supposed interest in the
property conveyed by the deeds of trust is immaterial, if the bill
is dismissed. ^ -
Such is our conclusion, and the decree here' will be, that' the
Chancellor's be reversed, and the bill dismissed.
HUNT V. TEST.
1. T. undertook to proceed to Washington City, " and to do all in his
power to prevent the confirmation of Eslava's claim, or to obtain the
passage of some ^.ct, or else have it inserted in the confirmation of Eslava, -
in such manner that the land office department may . issue patents to said
G. &H. for the land embraced within said claim, and for wliich tiie^ have
the. government title" — Held, that it wa's not unlawful to solicit <I!ongress
in behalf of private land claimants, as the acts of Congress on tliis subject,
though laws in form, were in effect judicial decisions— That the under-
taking " to, do all in his power," did not on its face import tlie use of un-
lawful, or improper means, and thai the contract was not void as being
against public policy — Whether such a contract,- to solicit the passage of
a public law, would be vajid, Quere. ■ ' ' ' "' .
2. Tv agreed with H. for a reward, dependdnt iipon his success, to attend
at Washington city, and, do certain things, in reference- to a controversy
about a private land claim depending before Congress, betwieen H. fc E.,
T. attended two sessions of Congress, when the matter was oompromised
between E. & H. — Held, , that if T. was not prjvy to the compromise, he
could not be required to prove that he could have performed his undertak-
ing, as tliat had been renclered impossible, by the act of II. If T. assent-
ed to tlie compromise, and did not' abandon his cjaim for servioes render-
ed, the law would iniply a promise from H., to pay the value x)f the servi-
ces, to be admeasured by the contract, but could not exceed the amount he.
had stipulated for.
3. To a plea of mn assumpsit, the defendant appended an affidavit, " that;-
the paper Sued ifpon by the said John Test is n6t his act and dedd"— Held,
that this was sufficient to put the execution of the iilstnunent sued \ip6n
in issue, though it was not a sealed-instrumtfnt.
T14 ALABAMA.
Hunt V. Test
Error to the County Court of Mobile. •■' *^ ■''-
Assumpsit by the defendant against the plaintiffin error. The
declaration consists of two special counts, framed upon an alledg-
ed contract in writing, and also the common counts. The de-
fendant pleaded non-assumpsit, and also the same plea with an
affidavit, " that thepaper sued upon by the said John Test," is not
his act and deed. This plea the plaintiff demurred to, and the
Court overruled the demurrer. The defendant also demurred to
the first and second counts of the declaration, which was over-
ruled by the Court, and upon the verdict of the jury upon the is-
sues of fact, a judgment was rendered for the plaintiff.
Pending the trial, as appears from a bill of exceptions, the
plaintiff introduced an instrument of writing, in the following
words :
« Memorandum of an agreement between John Test of one
part, and Jonathan Hunt, and A. H. Gazzam of the other part.
Said Test agrees to proceed to Washington City, and do all in
his power to prevent the confirmation of a large claim by the
heirs ofEslava, for 5,787 acres, which they are now endeavoring
to urge through Congress. Also, he agrees, if he can, to obtain
the passkge of some act, of else have it inserted in the confirma-
tion of Eslava, in such manner that the land office department
may issue patents to said Gazzam and Hunt, for the tracts em-
braced within said claim, and fbr'which they have the government
title. Said Gazzam and Hunt hereby agree to pay said Test,
three hundred dollars, and to pay him two hundred more in Wash-
- ingtoQ City, arid in case their titles are quieted by the passage of
finy act, or "law, so as to give them their patents, or so as they
■ can get their patents^ and be secure from Eslava's claim, then
said Gazzam and Hunt to pay said Test- two thousand dollars,
making his fee' for full success, twenty-five hundred dollars.
A. H. GAzzAM,^or himself and
■ . •. Jonathan Hunt,
■ - , John Test." " ,
The defendant, by his dounsel, objected to the introduction of
t^i^ contract as evidence, because it varied from the contract de-
clared on, and also, because no evidence of authority was pro-
duced, ai^thorizing Gazzam to make the contract for Hunt. The
• . . • .' , ' \
JUNE TERM, 1845. 715
Hunt V. Test
Court overruled the objection, and permitted the evidence to be
read to the jury. • • -
The plaintiff also proved by witnesses, that he attended upon
Congress during both the sessions of the 26th Congress,and whilst
there, was actively engagc4 in attempting to obstruct the passage
of a Ijiw, confirming the title of the heirs of Eslava to a tract of
land in the city of Mobile for 5,787 acres, referred to in the above
contract. That he submitted in 1840, to the committee on pri-
vate land claims in the Senate, before whom this claim was pend-
ing, a written argument of between thirty and forty pages, to
endeavorto show that this claim oughtnot to be confirmed by Con-
gress, and was also active in his endeavors to persuade members
of the Senate to oppose the claim. That Hunt and Gazzam had
land falling within the limits of the Eslava claim, and were both
interested in defeating it. That Hunt, during the winter and
spring of 1840, had numerous and long consultations with plaintiff
about the claim.
He further proved, that the act of Congress of 3d March, 1841,
being the 15th chapter of the private acts of that session, was
the conclusion of the action of Congress, on this subject, and that
the act was agreed to by all parties, as a compromise ; which
act, with the report referred to in it, 5 American State Papers,
623 Public Lands, is a part of the bill of exceptions. M. Eslav^
also testified to the efficiency of his services, that he made all the
mischief in his case. Thg interest of Gazzam embraced 1,600
acres, and that of Hunt several hundred acres, worth at that tipie
from $50 to $75 per acre.
The defendants introduced the testimony of King & Wilson,
that they had been retained by Hunt, to oppose the confirmation
of Eslava's claim, and paid by him. That they knew of tho
plaintiff's opposition to Eslava's claim, and supposed that he was
retained by Gazzam, &c. Mr. Smith testified that Hunt'^ inter-
est in the land was 671 acres, purchased from Gazzam, in 1838,
for $9,000, with Gazzam's deed of warranty. That he. Smith,
was the confidential and general agent of Hunt in Mobile, that
Gazzam was not his agent to his knowledge, and proved various
other facts, tending to show, that Hunt did not authorize,- or know
of the contract made with Gazzam. That in 1839,Gazzam was
reputed to bfe embarrassed, made an assignment m 1^40, and had
716 4- ALABAMA.
Hunt V. Test
proved insolvent. It was in proof that King & Wilson were
land agents, and not attornies at law. *
The Court charged the Jury, that the affidavit attached to the
plea, did not put the plaintiff on proof of the instrument, and that
without regarding the evidence offered impeaching the execution
of the instrument offered in evidence, and for want of the
proper plea and affidavit, the defendant could not object to the
want of authority in Gazzam. That the plaintiff was entitled to
recover on the contract, if he had performed the conditions.
That the act of Congress produced in evidence, was not the ful-
filment of the condition of the contract, but if the plaintiff had
been ready to endeavor to procure the passage of the act of Con-
gress specified in the contract, and had been prevented from at-
tempting to do so by the compromise between the parties, he
was entitled to recover, as if the conditions had been performed.
That if the compromise was made by the consent, or without ob-
jection from the plaintiff, the contract was to be considered out of
the questicfn, and that then the plaintiff might recover upon the
general counts, and the jury might go beyond the provisions of
the contract, in fixing the value of the plaintiff's service's, if they
thoughtlhem worth more.
The defendant's counsel asked the Court to chargp, that to ena-
ble the plaintiff to recover the two thousand dollars mentioned in
the contract, he must prove that he was able and willing to pro-
cure the act of Congress specified in the contract, or to enable
Hunt and Gazzam to get their patents, and be secure from Es-
lava's claim. This, the Court refused, and charged that a readi-
ness to endeavor to procure the act, was all that was neces*
sary. • ,
• They further moved the Court to charge, that to enable the
plaintiff to recover on the contract, in consequence of a compro-
mise, the -plaintiff must show that it was against his consent, and
that 'he could have performed the conditions of the contract ;
which the Court refused, so far as it was inconsistent with the
charge previously given.
Further, that upon all the evidence, the plaintiff cannot recover
of the defendant, for the non-fulfilment of that term of the contract
which provides for the payment of $2,000, which the Court re-
fused. .
Also, that there is no evidence "before the jury, showing any
JUNE TERM, 1845. ^ 717
Hunt V. Test
ability on the part of the plaintiff' to fulfil, or the fulfilment of that
term- of the contract, fhat provides for the security of the titles of
Hunt and Gazzam, and without such proof he cannot recover,
which the Court refused.
To all which the defendant excepted, and now assigns for
error —
1. The judgment on the demurrer to the declaration.
2. The matter of the bill of exceptions.
Campbell, for the plaintiff in error, made the following points :
The declaration consisted of special and common counts, and as
to the latter, it was clear the instrument required proof [3 Stew.
46'] The> objection to the affidavit is not well founded, and
could not have been taken afte^' the judgment on the demurrer
to the plea. [2 Ala. Rep. 401, 726 ; 4 Id. 200 ; 3 Port. 433
422.]
The agreement was invalid, being against public policy, and
this question was raised by the demurrer to the declaration. It
provides for the use of all the means in the plaintifl^s power, to
prevent the passage of an act of Congress of a particular des-
cription. The use of fair and honorable means, as well as the
sly, and subtle acts of electioneering, importunity, intriguis, per-
sonal influence, are ajl within the import of the engagement.
The law declares all such contracts void, from their tendency to
create an improper, and corrupt interference, with the law mak-
ing power. [7 J*. J. Marsh. 640 ; 7 Watts, — ; 5 Watts & Ser.
315 ; 6 Dana, 366 ; 18 Pick. 472 ; 2 Madd. C. R. 356 ; 5 HjU's
27 ; 6 Am. Dig. 144.]
The Court below admitted that the act of Congress was not a
fulfilment of the undertaking. There must be either a perform-
ance, or an offer to perform, to excuse the non-performance.
[Chitty.on Con. 274.] But the Court held, that a « readiness to
endeavor," was sufficient. Before the plaintifl'.can recover, if ho
was prevented by the acts of the defendant from endeavoring to
procure the passage of the act of Congress, he must show a readi-
ness to fulfil tlie condition and perform his contract. [2 Pick.
155, 270 ; 4 Id. 101 ; 4 Por. 170 ; 1 Ala. Rep. 140.]
If the plaintiff" consented to the compromise, no right to. com-
pensation could arise further than has already been paid. The
effect of the compromise is, that the plaintiff", and defendant, -rau-
71$-.^ ALABAMA.
Hunt V. Test
tually surrendered their claims on each other. But the Court
even told the jury, that they might ass6ss ■ damages beyond the
provisions of the contract. Although it was admitted the contract
was not performed, the Court refused to charge that there could
be no recovery for the term of the contract promising to pay
$a-,000. It is also contended, that after an unsuccessful solicita-
tion for two winters, the defendant was justified in compromising.
The plaintiff was bound to fulfilment in a reasonable time. [2
Taunton, 325 ; 20 Eng. Com. Law, 12G.]
J." Test, pro se. He considered it tO' be clear law, that
what it was lawful for a man to do himself, in regard to his
interest, he may employ an agent to do for him. This is, in fact
the settlement of a private claim, not the passage of a public law,
and in England nothing is more common than for counsel to bo
employed in the passage of private bills. Nor is any thing more
common in Washington city, than for counsel to appear before
committees of both houses of Congress in the case of private land
claims. . ' •■
This was a mere private bill, in which neither the people, or
the government, had any concern, further than their justice or >
their bounty were concerned, and the undertaking was not
as seems to be supposed, to pervert justice-^to accomplish the
act by any means, fair or foul ; the contract warrants no such
interpretation. The legal presumption, pntil.the contrary is
shown, must be, that proper means alone were to be resort-
ed to.
The cases cited have but little if any analogy to this case-. A
promise as an inducement to solicit the executive for a' pardon
for a convict, evidently stand upon a different footing from the
present .case. Nor is the case cited from 2 Madd.356,at all like the
present. That was a contract fraudulently to withdraw opposi-
tion to the passage of a bill, which was calculated to injure the
public. The case cited from 6 Dana, is directly in point against
the defendant, so far as the case is any authority. • .
Authority cannot be necessary to show, that a man may em-
ploy an agent to appear before a legislative body, but if it is, a
reference to the American State Papers, vol. 1, 1638 to 1721,
will show that agents have been employed to splicit the passage
of private bills, and ^lave been heaz'd at the bar of the house.
JUNE TERM, 1845. € 7fO
Hunt V, Test,
The affidavit, that the paper sued upon was not the « act and
deed" of the defendant, was insufficient to put the. party on proof
of the execution of the instrument, which was a simple contract.
It was not in law or in fact , his act and deed, and if he had in
truth authorized its execution, he could not have been convicted
of perjury on this affidavit. An affidavit of the truth of the plea
would have been sufficient, but that is not done ; certain facts are
sworn to, from which the legal conclusion's drawn, that he did
not assume, &c. but the facts do not warrant any such conclu-
sion.
ORMOND, J. — The principal question in the cause is, the le-
gality of the contract, which has been assailed by the de-
fendant's counsel, as contrary to public policy. It appears
that M. Eslava was urging on Congress the confirmation of a
claim derived from the Spanish government, for 5,787 acres of
land in the neighborhood of Mobile, and one Gazzam, and the
plaintiff in error, asserted a right to a portion of the same land,
which would be prejudiced by the confirmation of Eslava's claim.
The undertaking of the defendant in error, was, to proceed to
Washington City, « and to do all in his power to prevent the con-
firmation of Eslava's claim." He also agreed to endeavor to
obtain " thd passage of some act, or else have it inserted in the
confirmation of Eslava, in such manner that the land office de-
partment may issue patents to said Gazzam and Hunt for the
land embraced within said claim, and for which they have the gov-
ernment title."
It is very clear that a contract by which one engaged to pro-
cure, or to endeavor to procure the passage of a law by sinister
meansj as by personal influence to be exerted with the members
of the legislature, by urging any false consideration of 'public po-
licy, or by the concealment of any thing necessary to be known
to the formation of a correct judgment, would be contrary to pub-
lic policy, and therefore void. The legislature should act from
high considerations of public duty, and the State has a. deep in-
terest in protecting the legislative body against all assaults^ or
solicitations,, which may hazard either the purity or' wisdom- of
its acts.
It is strorfgly urgcd,that aljLhoiigh the contract in this case' does
not in terms stipulate for the employment of sinister means, it
720 k ALABAMA.
Hunt V. Test
does provide, that the agent shal^ do all in his power to accomplish
the object in view ; that this includes improper, as well as pro-
per means, and that the necessary tendency of permitting such so-
licitation, is to expose the legislative body to improper influences.
Doubtless there is great force in this view of the matter, as it
would in most instances be difficult, if not impossible, to ascer-
tain, whether the agent was exerting a personal infiuence, or en-
deavoring to convince the mind — whether he was giving the re-
sults t)f his own unbribed judgment, or whether he was merely
acting the part of an advocate. We do not however intend to
pass upon this question, as a general proposition applicable to all
laws, in which the public have a direct or immediate interest, be-
cause we think the law to be obtained in this case, is clearly dis-
tinguishable from such general laws.
The acts of Congress confirming incomplete titles within the
territory acquired from other nations, though laws in form, are
in their essence judicial determinations. It is the judgment of the
nation, upon the facts ascertained, appealing to its honor, and
sense of right and justice. ' To a proper decision, it is necessary
that the facts should be ascertained, and the law understood as
applicable thereto. It is no impeachment, either of the diligence,
or wisdom of the nationa'l legislature, that it should devolve on
others, the collection of the facts, or avail itself of. the knowledge
and experience of professed lawyers. Such is the habit of all
Courts, and such in effect is Congress, in the settlement of these
questions. It would doubtless frequently happen, as was the fact
here, that the claims of different individuals to the same land would
come in conflict, and in such cases it appears to us, that the op-
portunity for a correct decision would be much greater, after all'
had been said in favor of each claim by those interested in mak-
ing the mdst of it, than if Congress had been obliged to work out
the problem, unaided by the ingenuity of mterested counsel, and
such appears to be the course'pursued at Washington, as well as.
at London, in such cases. - : ■••-•.-'.'
The contract on its face doe's YU)t import that any unfair, or
impi'oper means were to be resorted to. To do all in his power,
evidently means to exert his utmost diligence and ability in estab-
lishing the claim of his employer, "and is what the law would have
imglied, if it had not been expressed. ' • . »
, The cases cit6d, do not be£^r out the argument founded upon
JUNE TERM, 1«45. V V31
Hunt V. Test
them. There is evidently a broad >4istinction between, soliciting
a pardon from the executive, and such a case as the present. The
pardoning power is a high trust lodged with the executive, to be
exercised in proper cases by him, on the part of the State as its
representative. The opinion of enlightened and virtuous indi-
vidual?, as to the propriety of extending mercy in a given ca^e,
would always have great weight with tlie executive, as an expoi-
nent of the wishes of the State, and' it is n fraud upoft the execu-
tive if this opinion is not expressed in good faith.. But it is obvi-
ous, if one is hired to express this opinion, or by operating en the
sympathy of others, to-induce them -to express it, it should have
no weight whatever, as' its. tendency, instead of informing, would
be to mislead. , . »: . ' - •
Neither is the case of the Vauxh;ill Bridge Co. v. EarlSpencer,
2 ^^f add. C. R. 356,. sycase in pdint. In that case, an act had pass-
ed the House of Commons for. the erection of a bridge over -the
Thames, with a clause gWinga compensation to the proprietors
of the Battersea Bridge, for the- probable ifljury they would sus-
tain by the erection of the new bridge,. Objection wasrr/ade in
the House of Lord^ to'this clause, making compensation. • .Opon
this, to prevent delay, or ith» .possible j-fejection of the bill,, nipo
ptersons, forming ia committee* of the ^subscriljei's of the^ ne^
bridge, secretly agreed tb place a.sdm. of money in the hands of
tEustees, to be f)aid to' th6 prxjprietors :of the Battersett Bridge.-
The clause of the bill \yas stricken out,, tmd the bilL passdcj.'. A-
bill' was afterwards filed in Chancery by tho* subscribei's of the
new bridge, to prevent the money from being, paid over. The
Vice Chancelkxr held, "that this secret agreement wYisa fraud up*
on the legislaturei, .and thd public, ijnd therefore void, as aggdnst
public policy. . ^That by this ^secret agreement, the tegislatarc
wete induced to 'give their sanction to the bill,. suppCsijag tho
claim to compensation had been given iip,- when but for this artir*
fice,^ they anight have refused to' pass the bilK . , '
It IS obvious, the prihoiple of this dnse has nothing to do with
the case at bar., Nor is the case of Wood v. McCann, 0 Dana,
366 more in point, whqro the Court affirms,, tha^ an unbondition-
al promise .to pay a sum of money, in consideration of the obli-
gee attending the IcgislatCirc of Kentucky, and procuring the {>as- .
sage of au act legalizing tlie marriage of the obligor, and divorc-
ing him from his former wife, was valid ^ it not appearing tlKit the .
91 .
722 • • ALABAM'A.
Huntv.Te^t
act was to be obtained by thc^ersonal influence of the obligee,
or that any improper means were to be resorted to. This case,
indeed, goes far beyond any; principle intended to be asserted
here. - >
' Without pursuirig tnis interesting question any furthier, we are
satisfied, that in the present instance the contract is not on its
face opposed to public policy, and should be upheld.
It appears that an act Was finally passed, as a compromise be-
tween the parties interested, and the Court ruled, that as the con-
dition precedent was not performed, the plaintiff could not re-
cover upon the contract, but that if he had heenready to endeavor^
to perform it, and was prevented by the act of the other party,
he was excused from the performan/2e of the condition. That if
the compromise was made with his consent, the contract was to
be considered as abandoned, and then he could recover upon the
common counts, what his services rendered were worth, although
it might exceed the two thousand dollars he had stipulated for.
It is certainly clear law, as a general proposition, that an offer*
to perform or do- an act, which is prevented by (he party in
whose favor it is to be done, or performed, is, in law, equivalent
to k performance, or rather is a valid' excuse for not performing
it.' T4ie' undertaking -of the plaintiff was ta prevent, if practica-
ble, the confirmation of Eslava's claim ; if that could not be ef-
fected, then • to procure the . insertion of , a clause, that patents
should issue, to the defendant, and Gazzam, for the land they
claimed within Eslava's tract— -or^to accomplish the- samethib'g
by An independent act. It appears that during a proti-acted con-
test, extending over two •sessions of Congress, the plaintiff suc-
ceeded in preventing the unqualified confiniiation of the claim of
Eslava, and it would be most unjust that the defendant^ by a com-
proniise with the kdverse party, should Snatch fi:om the plaint'rff
the-fruits of his labor', and deprive him of the potver of performing
his contract. It is urged in argument, that to show that he was
' mjured by this interference, he must mak? it appear, that he could
have fulfilled his engagement. His contract was to « do' all In
his power/' to produce a certain result, and if successful in pi*o-
ducing that result, He was to receive the stipulated reward. Now,
it is. apparent, that the plaintiff cannot prove that /he could cer-
' tainly have produced this result, which depended upon the pas-
sage of aii act of Congress. All therefore that he can, from the
JUNE TERM, 1845. 723
Hunt V. Test
nature of the case?, be required toprpve, is, that the matter was
in progress, and that a successful terminatign might reasonably
have Jbeen exp|ected. It does appear from the testimony, that
the services of the plaintiff were efBcient, as M. Eslava hirp-
self testifies, that the plaintiff" made all- the mischief in his case ;"
that is, prevented his obtaining an unqualified confirmation. Nor
can the defendant object, that the plaintiff does not prove unq-
quivocally, that he could have performed his contract, when the
inabilitj^ to nrake such. proof is caused by his own act. He has
himself produced the necessity of substituting prdbability for cer-
tainty, and cannot complain of it
Thus far, the case has beeij. considered, as if the defendant hs^d
by his own act terminated the controversy between himself and
Eslava, by the compromise, but it. vvas also put to, the jury upon
th^ hypothesis, that.the-plaintiff had consented to the conjpro-
n|ise. . , , . .'.'■'•
The effect of this consent, if given without any other stipula-
tion, "was clearly a rescission of the contract between the plaintiff
and defendant, as it rendered -it impossible for the former t(^ per-
form it ; assurtiing what is indeed admitted that a different r6s.ult
was thereby produced^, from that which v^as to entitle the pkiiA-
tiff to the compensation agreed on. But although t&e contract
was rescinded, so fa,r' ihht thd defendant could not insist on its
performance as ji condition precedent, it most be looked to for
some purposes, otherwisetheservices of the plaintiff would, bo
^atuitous. Jie cannot prove they were rendered at the instance
of the defendant, but hy the contract, ai)d although as there was
no abandonment of these services, at (he titne of the conipromiSe,
the law will imply a promise to pay their value, no presuinption
can arise of a promise to pay more for partial, than was consider-
ed by the defendant himself adequate .compensation /or complete
success ; and it would be Strang^ if the compromise was more
beneficial to the defendant than the full consummation of his
wishes. We think therefore, under the circupnstances of this case,
the implied promise, is to pay- the value of the services actually
rendered, to be admeasured by the contract [Green v. Linton,
7 Porter, 133 , Haywood v. Leonard, 7 Pick. 181.J
The question argued here, that the contract was ".to be per-
formed in a reasonable time, and thatfiic defendant had the right
784 • X-; 'ALABAMA.
Hunt V. Test.
to p^t an end to it, if the consummation was unreasonably de-
layed, docs not arise upon the record. .
The remaining question arises upon the pleadings and evidence, '
relating to the execiHion of the contract. The defendant pleaded
non-assumpsit, with an affidavit," that the paper sued on by the
said John Test, in, the above pause described, and now pending
in the County Court of. Mobile,.'is not his act and «deed." To
this plea, as appears from the minutes of the Court, a demurrer
was interposed by the plaintiff, and overruled, whereupon he took
issue upon the plea; In the case of Mc Alpin v. May, 1 Stew.
520, it was held, that a demurrer to a plea reached.the want of an
affidavit, when one was necessary.. This decision has 'been ^re-
peatedly recognized since. . [McWhorter v.. Lewis, .4 Ala. Re]^.
-198.] In all cases where, under our -statute, or according to our
practice, a plea m^ast be^ verified, by oath, the oath isia part of the
plea, so much so, that without it, the plea may be stricken' out,
on motion. [Sorelle v. Eltnes, -6 Ala. Rep. 706.] The Judg-
ment of the Court then, lipon thq demurrer, was a judicial deter-
minatipn of the sufficiency of "thfe affidavit,- •and .whilst that' judg-
ment was" permitted to stand, it drew after it- the consequence,
that the plaintiff was -reqi^ired to .establish, to the , satisfaction of
.the jury, that the writing sued upon was* the. ddfendanVs act, in
fact, or in law. •' '* . ' : . • ■ .^ .
Upon the trip.1, the defendantjntroduced testimony for the pur-
pose of showing that Ga^zapi, who had signed the contract on- hjs
b.ehalf, \yasnot his ageiit, and jiad iio authority to execute it in
his namd. This testimony, the Cpurt instructed" the jury, they
w'erenot to .consider, but they Were 'to n5gard-the execution of
the insp"umcnt as established. I* is clear, that the Court had not
the power to instruct the jury as to the effectof the-evidence, nor
,is thiat contended for here, but the argument is, as it doubtless
was in ^:hc Court below, tha^ there was no affidavit such as the
statute requires, to put in issue the execution of a written in-
• strument, the founda,tion of a suit. [Clay's Dig. 340, § 52.]
This argument, is founded upon the language employed- in the
affidavit, "that it is not his act and deed." According to re-
peated decisions of this Court, no evidence caii be adduced to con-
tradict, either the execution in fact of apy instrument, the founda-
tion of a suit, or its binding efficacy jn law as his act, but under a
pfca putting the fact in issue, supported by affidavit. [Martin, v.
JUNE TERM, 1845. 725
Fant V. Cathcart.
Dortch, 1 Stew. 479.; Winston v, Moffat, {> Porter, 523, Lazarus
V. Shearer, 2 Ala» Rep. 71« ; Sorelle v. Elmes, 6 Id. 706.] When
therefore, the defendant denied, that the instrument declared on
was his act, he asserted that Gazzam had no -authority to sign it in
his name. It is true, he adds^it is.not his " deed," but this cannot
vitiate what precedes it, nor indeed arre we sure, that it is pro-
per to consider this' word in its -technical sense. This' affidavit
was made'in pais, and it should j-ather be Construed in its popu-
lar sense, and so considered, the term deed simply means an act,
or .fact, and is a word of most extensive use,, and import. It is
impossible to doubt the intenlionof thp party, as he says, ."the
paper sued on by-tbe, said J-obn^Test, in the above case, &c., is
not his act, an4 deed," and if he has sworn falsely in this matter,
is guilty cif perjury, and"- may.be punished. ,,. ; . •'■
If therefore it could be considered, that the effect of this .charge
was to set aside the previous judgmeht on the. demurrer to the
plea,^ and to render a -judgment su^tainipg it, still the Court erred,
as "in our judgment the -affidavit Was sufficient, to put the execu-
tion of the paper suediipon fn issne.-'; ' , ■
These views render it unne(3es$ary>to consider the" other'^ues-
tion argued at the bar. • Let the judgmeht he reversed, and the
cause remanded. • - • , .
iudge.GoLDTHWAiT.E. not sitting.
•-- PANT V. CATHCART, : •
1. The Court may, in its discj-etion, perniit sijiplaintift" to addiice additionaj
testimony, after he has announced thfl,t his evidence had closed «nd the
.defendant tendered a demurrer to it.
2. AMU single made by an infant, althou^li the consideration be something
else thou necessaries, is voidable merely, and may be ratified by him after
he attains his majority, so as to entitle tlie payee to maintain an action
thereon. ' > > , ^
3. Where' th& plaintifFreplies to thd plea ofinfaiicy, that the defendant pro^
726 , ':"■ ALABAMA.
Fant V, Cathcait
mised to pay the debt in question after he attained his majority, the fact of
infancy is admitted, and it devolves upon the plaiptiff to prove the subse-
quent promise.
4.V An appellate Court will not reverse a judgment because testimony unne-
cessary and superflous, but ^hich could not have misled the jury, has been
permitted to be adduced by the successful party.
Writ of Error to the Circuit Gourt of Talladega.
This was an action of assumpsit, at the suit of the defendant in
error, on a writing obligatory, made by the plaintiff, the 21st Jan-
uary, 1837, for the payment of the sum of three hundred and
thirty-eight dollars and sixty-nin5 £ents, three days after date.
. The defendant below pleaded, " 1. The general issue. ' 2.
That he was under twenty-one years of age when the note in th6
plaintiff's declaration mentioned, was executed. 3. Paym(?nt."
On the first and third pleas the plaintifT took issue, and to the se-
cond he replied a subsequent .prpmise after the defendant attained
his majority, and the cause was submitted to a jury. On the
trial the defendant excepted to the ruling of the Court. It ap-
pears that the plaintiff read to the jury the note described in his
declaration, and aniiounced that he would there close his testi-
mony. The defendant offered no evidence, but demurred to that
adduced by the plaintiff; instead of joining in the deniurt'er, the
plaintiff asked l6ave to offer additional testimony, which the' Court
permitted in despite of ah objection by the defendant. The
plaintiff then adduced the depositions of James Elder, and the
, defendant objected to either of the questions or 'answers, or any
clause or sub-divisron of either question or answer ; but the Court
chrerruled the objection, and perlriitted the' questions- and answers
to be severally read, . except so much * as spoke of the plaintiff's
keeping correct books, and witnes'ses opinion, belief, or informa-
tion derived from others, as to where the note sued on-w^s ; also
witnesses .statemei^ as to defendant's age.
. The deposition is set out inextenso, arid need only be here no-
ticed, so far as the arguments of counsel, or the opinion of the
Court have adverted to it. The witness speaks of his acquaint-
ance with the defendant frorA 1832 up to 1837 ; that he repeat-
edly sold him goods for the plaiintiff ; such as were suited to his
circumstances, profession, and circle in which he moved. That
he never considered the defendant ex,travagant ; his father was
JUNE TERM, 1845. 727
Fant V. Cathcart
« very comfortably off," having property sufficient to support
himself and family in a very genteel way. Defendant boarded
with witness "over three years, and contracted debts and ac-
counts on his own account" — " he dealt on his own account near-
ly all the time he resided in Winnsborough," South-Carolina,
where the witness knew him, and sold hirh goods.
Witness also testified that he had examined the account at-
tached to his deposition, and which was closed by the writing on
which the suit is founded, and that it is correct as taken from the
books of the plaintiff; that the account was made out by witness,
and is a true copy from the books : Further, that witness sold
many of the articles named in the account, and they are correct-
ly charged. Sometime in the ye^r 1837, witness heard the de-
feiidant say that he would pay him what he owed him, as soon
as he could make the tnoney. To the several decisions of the
Court adverse to the defendant, ho excepted, and they are duly
reserved. A verdict was returned for the plaintiff, and ;a judg-
rrient Was rendered accordingly.-
S. F. ^licE, for the plaintiff in error. — Where a demurrer is in-
terposed to written evidence, ,the Court has no discretion, but
must either compel the opposite party to join in the demurrer, or
waive his evidence. [M^nsel on Dem. 120 et post. ; 3 H. Bh
Rep. 187 to 211 ; 4 Porter's Rep.' 405 ; 8 Id. 300.] The de-
fendant has been prejudiced by the refusal of the Court to com-
pel the joinder ; for the writing declared on did not support the
replication to the second plea^ the emus of proving which restect
on the plaintiff.
•There should have been a verdict won obstante veredicto upon
the second plea. The declaration was upon a sealed instrument,
and cannot be recovered on by proving a parol promise after the
defendant obtained his majority. [6 Ala. Rep. 017.] The ac-
tion should, have been assumpsit upon the siitscqucnt promise^
and thfe specialty stated by way of inducement The replication
is a palpable departure fromlhe declaration; a subsequent parol
promise could not be replied or given in evidence under a single
count upon the writing. -
It was not necessary for the defendant to demur to the replica-
tion; he may object on error. The rule is, " where the plaintiff
in his replication makes a title, and it thereby appears that he has
728 ALABAMA.
Fant V. Cathcart.
a bad title, a rejoinder cannot by implication make it good."' [5
Mass. Rep. 125-132.]
An infant cannot make a sealed note or bond; the replication
confessed the plea, and the promise set up, could not, in a case
like the present, avoid its efFect.
The deposition of Elder was ' irrelevant under the issues, and
could not fail to mislead the jury. It wa^ certainly inadmissible
to prove that the defendant beloW boarded with the witiess
three years, contracted debts on his own afccoUnt, &c, ; that his
father was comfortably off, &c.
T.. W. BowDON, for the defendant, insisted, that the cases cited
for the plaintiff in error have no application to the present. Here,
the question was, as to the right of the Court to permit addition-
al proof to be offered. [See 2 Ala. Rep. 694-7.] This was a;
matter of discretion, and neither party could complain on error,
that it was improperly decided. - _,
The case cited from 6 Ala. Rpp, 617, is alike inapplicable.
Here, the question upon the replication to the second- plea, is not
as to the discharging of a contract, biit as to its confirmation, and
that case shows that a contract under seal may be.discTiaVged'by
a pai'ol agreement founded on. a consideration. ' -
If the replication was bad it should have been demurred to. . But
it is good ; for the modern doctrine is, that the contracts of in-
fants, when not shown' to be to their prejudice, are voidable on-
ly, although they may have been evidenced by an instrument un-
der seal ; and may be confirmed by a parol promise. [See Co.
Litt. 172; 1 T. Rep. 41; 10 Peters' Rep. 5^; 1 Metci.Rep.
559 ; 13 Pick. Rep, 1-7 ; 6 Mass.' Rep. 78-80 ; 15 Id. 220 ; 19
Pick. Rep. 572-3 ; 3 Wend. Rep. 479 ; 7 Cow. Rep. '22-179 ;
1 Lev. Rep. 86 ; 3 Burr, Rep. li6oa; Chitty's Bills, 20.] It
was not necessary to sue on the subsequent promise, the rule be-
ing that the promjfie validates the existing contract. ' [1 M. &
S. Rep. 724-5 ; 14lV[ass; Rep. 457 ; 4 Pick. Rep, 48 ; 17 Wend.
Rep. 419.]
If the plaintiff was entitled to a vei'dict upon the issue to the
second plea, he should have prayed the Court to instruct the ju-
ry, and cannot now complain cff.an error in which he acquiesced.
The, testimony of EIder/\ya^ necessary to show that the spe-
cialty declared oh was sustained by a good consideration. To
JUNE TERM, 1845. 729
Fant V. Cathcart
do this, the defendant's rank and condition in life, his father's pro-
perty, whether he lived at home, &c. was admissible evidence.
The form of the issue made it necessary to prove when the de-
fendant attained his majority. [See 41 Law Lib. (top page,)
316-7.]
Our statute permits the consideration of a sealed instrument to
be impeached at law, and thus removes the reason upon which
the old decisions rest, which maintain that an infant cannot bind
himself by a writing obligatory.
COLLIER, C. J. — It was clearly competent to permit the
plaintiff to adduce other testimony, after he had announced that
his evidence was closed. The fact that the defendant tendered
a demurrer to the evidence can make no difference. It has been
frequently held, that the Court, in its discretion, may permit either
party to produce additional proof, even after a cause has been ar-
gued, and the jury charged, and we can sec nothing so potent in
a demurrer, as to take from the Cou;1; such a discretiop. The
question then is, not, whether or when a party should be cbna-
pelled to join in a demurrer whiph embraces all. the evidence he
proposes to give, but whether, if from inadyerteftpe or dtbei>
cause he has declared the intention neither to give or adduce more
proof, the Court rpay not permit a change of purpose, ,and' allow'
the introduction of other testimony. • Upon this point, we can't
doubt the correctness of the ruling of the Circuit Court. ' • • ,.
In Roof V. Stafford, 7 Cow. Rep. 179, it was said to bewell»
settled, that the contracts of an infant, not only Such as take effect
by his actual 'delivery of the subject matter (as a feoffment, with
livery, or a sale and manual delivery of goods ;) but all his deeds,
whether at common law oi under the statute of uses, whether re-
lating to real or personal property, are voidable merely. [See
also 5 Cow. Rep. 475; IN. Hamp.;Rep. 74; 2 Id. .51 ; 1 N.
& McC. Rep. 1 ; 11 Johns. Rep. 539 ; 3 Burr. Rep. 1794.] ■
In Kline. V. Bebee, 6 Conn. -Rep. 494, the ObVirt said that there
was a contradiction in the books in respect to the line of discrimr
ination between those acts of an infant which require affirmance
to render them valid, or disaffirmance to avoid tlicir operation.
But they generally agree that whenever the act done may be
beneficial to the infant, it shall not be deemed void; but voidable
merely. This rule, it is added, is higlily reasonable,' tof (he intcr-
92
73a ALABAMA.
Fant V. Cathcart
est of the infant, and sanctioned by many judicial decisions. [See
3 G. & Johns. Rep. 103 ; 2 N. Hamp. Rep. 456.]
That an infant may affirm a voidable contract, made during
his minority, is a proposition too well settled to be now contro-
verted. This may be dpne by express ratification ; in some
cases by the performance of an act from which an affirmance
may be reasonably implied ; and in others the omission to disaf-
firm a contract in a reasonable time after attaining majority, has
been held sufficient evidence of a ratification. These several
modes of affirmance are not alike applicable to every description;
but upon this point it is needless to be more specific, than to say,
that a contract, such as that now under consideration, may be
confirmed by a promise of payment. [G Conn. Rep. 505; .4
Pick. Rep. 48 ; 11 Sergt. & R. Rep. 305 ; 4 McC. Rep. 241 ; 14
Johns. Rep. 124 ; 1 Pick. Rep. 221 ; 6 Greenl. Rep. 89 ; 2 South.
Rep; 460 ; 1 Strange's Rep. 690 ; 1 Atk. Rep. 489 ; 4 Camp.
Rep. 164.]
In Reed v. Batchelder,.[l Mete. Rep. 559,] it was decided
that a negotiable note made by an infant, is voidable, and not
void ; and if after coming of age,' he promise the payee that it
•sKall be paid, the payee may negotiate it, and the holder may
maintain an action iii his own'name against the maker. So it
has been adjudged that where a gingle bill was ^iven by an infant
for necessaries, who after he became of age promised tq pay the
amount, the action must be brought on the specialty, which was
•a higher security than the parol promise, and validated by it.
.[Bull. N. P. 155.] But it was held that as. the bond of an infant,
with a penalty, was void, it did not merge the simple contract
debt ; and the action must be founded upon the new promise,
and not on the bond. {3 M. & S. Rep. 477 ; 2 B. & C Rep.
824,]
-It is laid down by McPherson, in his Treatise on Infants, p.
498, that although an infant cannot bind himself in an obligation,
or other writing, with a penalty, even for the payment of neces-
saries, yet an obligation from him in the precise sum disbursed,
■was good, and in such case, judgment was given for the- plaintiff
ip debt, on a bill single. [See 1 Lev. Rep. 86 ; 1 Camp. Rep.
^52, note.] So it is said, that all deeds which are merely voida-
ble, may be confirmed at full age." [McPherson on Inf 486-7.]
This view of- the law may suffice to show, that the writing de-
JUNE TERM, 1845. 731
Childs V. Ciawford.
clared on, is not void, but voidable only, (if not for necessaries,)
that the defendant might ratify it after he became of full age, and
that if ratified, the action thereon is maintainable.
The replication to the second plea, was, in legal effect, an ad-
mission that the defendant was under twenty-one years of age",
when he executed the writing in question, and devolved upon the
plaintiff the onus of proving a promise to pay it after he had at-
tained his majority. Evidence was adduced to this point in the
deposition excepted to ; whether it was sufficient or not, is a
question not now before us ; it was certainly pertinent, and pro-
perly received, and if the defendant had desired, he could have
prayed the instructions of the Court upon it. It was not ne-
cessary for the plaintiff to show that the specialty was given for
necessaries sold to the defendant ; we have seen that it was
merely voidable at the election of the defendant, and when he
acquired capacity to contract, might be affirmed by his parol
promise. The issue then being upon the fact of the promise
alone, the testimony of Elder, except as if tended to establish it,
was unnecessary and superfluous. Whether the answers of the
witness would be evidence in a case that required such proof, it is
needless to inquire, since in the case before us, it could not have
misled the jury ; at least, there is nothing in the record that war-
rants such an inference.
The conclusion is, that the judgment is affirmed. /- •-
CHILDS V. CRAWFORD.
1. In certiorari cases, it is error to award judgment for damages on account
of delay merely, altliough tlie jury so find. A jiklgment so entered can-^
not be considered as a clerical misprision, but is tlie fault of the party tak-
ing it, and will be reversed and here rendered for the proper ^pm.
Writ of Error to the County Court of Randoljah.
732 ALABAMA.
Childs V. Crawford.
This suit was commenced in a Justice's Court, by Crawford
against S.&' J. J. Childs, and after judgment was removed by
certiorari into the County Court, upon the application of the de-
fendants. In the County Court, the cause was submitted to a
jury, and it appears.from the judgment entry, that the verdict was
for the plaintiff for $55 58, and fifteen per cent damages on the
same for delay. The judgment was rendered by the Court for
the sum so ascertained by the verdict, with fifteen per cent, up-
on ii. ■
This is now assigned as error.
J, Falkoner, for the plaintiff in error.
S. F. Rice and T. D. Clark, for the defendant in error.
GOLDTHWAITE,J,— The statute which gives damages
when it appears to the Court that an appeal was taken for delay
merely, (Dig. 315, § 13,) does not in terms include suits removed
by certiorari; and in Hucjnell v. McCarty, Minor, 402, it was held
not to warrant the assessment of damages in such a suit. The
fact that the jury have returned a verdict for this amount of dam-
ages will not sustain the judgment rendered on it, because that
was not a matter within the issue, and the plaintiff should not
have taken judgment for any thing but the sum found due upon
his -demand. • . .
It is supposed this, at most^ is a clerical misprision, which could
be corrected on motion, in the Court below; we should have been
pleased if we could have arrived at this conclusion ; but the duty
of the clerk is to enter the judgments according to the verdicts,
unless oth^erwise directed by the Court, which itself is merely
passive. In point of law, it is • the duty of the party so to free
the verdict and judgment from extraneous matter, as not to cre-
ate error, to the injwy of the opposite party.
Judgment reversed, and here rendered on the verdict for the
proper sum.
JUNE TERM, 1845. 733
Anderson v. John and Thomas Dickson.
ANDERSON v. JOHN AND THOMAS DICKSON.
1. In declaring on a bond with condition, the plaintiff may declare upon the
penalty, or set out the condition and assign breaches at his election. If
he pursues the latter course, advantage may be taken of an insuffiient as-
signment of breaches, in the same manner as if they had been assigned in
answer to a plea of performance.
2. It is not necessary to assign as a breach any. fact which is admitted by the
bond itself.
3. The only breach necessary to be assigned in a suit upon the bond which
the plaintiff in detinue is required to execute, upon suing out the writ, is
the failure of the plaintiff in the suit.
4. This Court will judicially notice when the terms of the Courts are held.
Error to the County. Court of Marengo.
Debt, by the plaintiff against the defendants in error, upon a
bond in the penal sum of $8,000, made by the latter, to the former
under the statute, for the prosecution of an action of detinue for
certain slaves.
The declaration, after reciting the obligatory part of the bond,
proceeds to recite the condition, " to wit : That is, the said John
Dickson had, on the day of the date of said bond, issued out of
the office of the clerk of the Circuit Court of Marengo County, a
writ in detinue, as guardian of William J. White, and Thomas D.
White, returnable to a certain term of said Court, to be holden
in and for said county, on the fourth Monday after the fourth
Monday in March, 1843, to recover of the said* John B. Ander-
son, certain slaves, to wit: &c.&c.then in the possession of the said
Anderson. It was therefore conditioned, that if the said J. Dickson
should fail in the said suit, he should pay the said plaintiff, John
B. Anderson, all costs and damages which he might sustain by
the wrongful suing out of said writ, then this obligation should be
null and void, as by the said writing obligatory and the condition
thereof will more fully and at large appear. And the said plaintiff
avers, that afterwards, to wit: at the fall term of the Circuit Court
of the county aforesaid, in the year 1843, the said action of detinue,
in the said condition mentioned, was tried, and legally terminated,
r34 ALABAMA.
Anderson v. John and Thomas Dickson.
and thesaid J. Dickson did fail in said suit. And the said plaintiff al-
so avers, that by the wrongful suing out said writ in detinue, he
has sustained costs and damages to a very large amount, to wit,
theamountof one thousand dollars, of all which the defendants
had notice, no part of which the defendants have as yet paid, al-
though often requested ; by reason of which said breach, the said
writing obligatory became and was forfeited, and an action hath
accrued to the plaintiff, to demand and have of the said defendant
the said sum of 88,000, &c.
To this declaration the defendants demurred, and the Court
sustained the demurrer, and rendered judgment for the defend-
ants, which is now assigned for error.
Lyon and Hopkins, for the plaintiff in error, contended, that
the averment of the time of commencing the suit was sufficiently
certain. That the plaintiff was not bound to assign breaches
until a plea of performance. [4 Ala. Rep. 243 ; 2 Stew. 370 ;
5 Porter, 395.]
Peck and Brooks, contra. The declaration is uncertain, —
In not alledging the time and place where the action was com-
menced, nor when and where it was determined. It is not shown
that the sheriff was authorized to seize, or did seize the property of
the plaintiff.
Every material averment must be alledged with precision and
certainty, and not by way of recital.
It is not shown that the plaintiff was damaged. [1 Ala. 454 ;
21 Wend. 270.]
ORMOND, JT — Our statute authorizing the plaintiff to assign
as many breaches as he thinks proper. Clay's Dig. 330, § 97, is a
transcript of the 8 and 9 Wm. 3, c. 3, under which it has always
been held, that the plaintiff may sue for the penalty of the bond,
and need not assign breaches until the defendant craved oyer of
the condition of the bond, and pleaded performance. [Gaines-
ford V. Griffith, 1 Saunders, 72, in note.] But the learned com-
mentator upon Saunders suggests, that the better plan is to set
out the condition, and assign breaches in the declaration. When
that is the course pursued, as in this case, it must certainly be at-
tended by the same consequences, as if the breaches had been
JUNE TERM, 1845. 735
Anderson v. John and Thomas Dickson.
assigned in a replication to the plea of performance, and if they
would be insufficient in the latter case, they must be so also in the
former. We proceed therefore to the consideration of the breach-
es assigned.
It is objected that the breaches are insufficient, in not alledging
when, and where, the action of detinue was commenced — nor
when and where, it was determined — nor that the sheriff was
authorized to seize, and did seize, the slaves of the plaintiff.
The bond upon which this action is brought is provided by
statute, (Clay's Dig. 317, §31,32,) by which the plaintiff, upon
making affidavit, and executing a bond, with the condition to pay
the plaintiff all costs and damages he may sustain by the wrong-
ful suing out of the writ, confers authority upon the clerk to
direct the sheriff to take the property sued for into his possession,
and if the defendant does not, within five days thereafter, execute
a bond for the indemnity of the plaintiff, the sheriff delivers the
property to the plaintiff, on his executing a bond, with condition
to deliver the property to the defendant, in case he fails in the
suit. It is upon the first of these bonds that this suit is brought.
It certainly is not necessary that the plaintiff should assign as a
breach of the condition of the bond, any fact which is admitted by
the bond itself; it is only necessary to alledge the existence of
those facts, upon the happening of which, by the condition of the
bond, the penalty of the bond attached. The condition of the
bond contains a distinct admission, that a writ had been sued out,
in detinue by the plaintiff at a particular time, returnable at a par-
ticular time, to the Circuit Court of Marengo, to recover of the
defendant certain slaves, then in his possession. These facts
the present defendant is estopped by his deed from denying, and
it was therefore not necessary to aver their existence, further than
by the recital of the condition.
The only fact upon the happening of which the penalty waste
be forfeited, is the failure of the plaintiffs in the suit. This is
sufficiently alledged by the averment, "that afterwards, to wit,
at the fall term of the Circuit Court for the county aforesaid, in
the year 1843, the said action of detinue, in the said condition
mentioned, was legally terminated, and the said John Dickson
did fail in said suit." The time when the Courts are held being
regulated by statute, will be judicially noticed ; the aver/hcnt is
736 ALABAMA.
Smith V. Houston.
therefore sufficiently certain, as the « fall," or autumnal term
in the year 1843, must have been held at the time required by
law.
No question is made upon the record as to the measure of
damages for a breach of the condition of the bond here sued
upon. Let the judgment be reversed and the cause remanded.
SMITH V. HOUSTON.
. B having executed several deeds of trust to H, to indemnify S, and oth-
ers, his sureties in certain bonds for the prosecution of writs of error, af-
terwards it was agreed between S, B, H, and another of the sureties, that
B should give to H the control of his growing crop of cotton, to be shipped
to Mobile, sold, and tlie proceeds applied according to the trust expressed
in the deed. The cotton, amounting to fifty-one bales, was accordingly
marked with the initials of H's name, by B and one of his sureties, and
shipped by them to Messrs. D, S & Co. who received and sold the
same, and held the proceeds, amounting to about $1,900. To reimburse
S $1,030, which the property sold under the deeds of trust failed to pay, H
drew on Messrs. D, S & Co, in favor of S, for the proceeds of the fifty-one
bales, which in the bill it was recited he had shipped them as trustee, &c.;
on this draft the drawees offered to pay about $500 — insisting upon the
right to retain the residue of the money in their hands for the payment of de-
mands, which they had against B. S refused to receive the $500, caused
the bill to be protested, and gave notice to H. Messrs. D, S «fe Co. were
subsequently gamisheed by a creditor, who recovered a judgment against
them for the $500. H was advised of the pendency of the gamislmaent,
but did not inform the garnishees of his claim to the money, except as above
stated: Held, that the proof of the foregoing facts did not show the loan,
advance, or payment of money by S for H ; nor do they show that the latter
had received money for the use of the former, or that he was indebted to
him upon an account stated ; that the fair inference is, that H drew upon
D, S & Co. merely to carry out the agreement betweon B and his sureties,
and the fact of drawing did not impose upon him the legal duty of coercing
JUNE TERM, 1845. iif
Smith V. Houston.
payment of the drawees: Further, the facts above stated do not show that
B gave to H the control of his cotton crop — that H shipped it, or that D,
S & Co. were instructed to place the proceeds to his credit
2. Where, giving full credit to all tlie plaintiff's proof, it fails to make out
such a case as entitles him to recover, a charge to the jury which is erro
neous, as the assertion of a legal proposition, furnishes no ground for the
reversal of a judgment against him.
Writ of error to the Circuit Court of Sumter. " '
' ■ ' . ' ."■■•■;■: y
This was an action of assumpsit at tiie suit of the plaintift* in
error against the defendant. The declaration contained counts
ior money lent and advanced, paid, laid out, &c., had aud receiv-
ed, and upon an account stated. In addition to these, there was
a special count, alledging that the plaintiff, Thomas Bevill and
Calvin Davis had become responsible for John B, Bunn, for a
large sum of money, as his surety in bonds for the prosecution of
writs of error, &;c. That Bunn had executed two deeds of trust
to the defendant, as trustee, upon lands and slaves, to secure the
plaintiff and his co-sureties in the event of their liability being
fixed, &c.; and with a 'view further to secure them it was agreed
between the plaintiff, defendant, Bunn and Bevill, before the sale
under the deeds of trust, that Bunn should give to the defendant
the conti*ol of his growing crop of cotton, to be shipped to Mo-
bile, sold, and the proceeds applied according to the trusts pro-
vided by the deed. The liability of the sureties was fixed by
an afiirmancc of the judgments upon which the Writs of error
were sued out; and pursuant to the.agreement, the' crop of cot-
ton of Bunn, amounting to fifty one bales, were shipped to Desha,
S.heppard & Co., to be sold, and was received by the consignees.
Afterwards the property conveyed by the deeds of trust was isold
for the benefit of the sureties, and the proceeds applied, still leav-
ing the plaintiff in advance for 'Bunn, one thousand and thirty
dollars ; the defendant, to reimburse this sum, by an instrument
in writir^g, requested Messrs. D,S & Co. to pay to the plaintiff
the proceeds of the fifty»one bales of cotton, marked R. F.JH[.,
which he had shipped to them as trustee in a deed of trust execu-
ted by John B. Bunn, to secure the plaintiff and his co-sureties.
It is further alledged, that at the time, the writing above meo-
tioned was made and presented to Messrs." D, S & C&'. they had
93
738 ALABAMA.
Smith V. Houstrp.
in their hands the proceeds, amounting to about nineteen hundred
dollars, yet they refused to pay the same — of all which the de-
fendant had notice, yet he refused to pay the plaintiff, or to en-
force payment by Messrs. D, S & Co.
The cause was tried by a jury, who returned a verdict for
the defendant, and judgment was rendered accordingly. On the
trial, the plaintifTexcepted to the ruling of the Court. It appears
from a comparison of the facts recited in the bill of exceptions
with the last count of the declaration, that that count was proved,
saving perhaps so much of it, as relates to the shipment of the cotton
by the defendant. The evidence upon that point was as follows,
viz : Bevill and Bunn, about two weeks before the sale under the
trust deeds, marked the fifty-oUe bales of cotton with the initials
R. F. H. shipped it to D, S & Co. and informed the defendant
thereof. To reimburse the defendant one thousand and thirty
dollars, which the property sold under the trust deed failed to
pay, the defendant drew as follows; « Livingston, April 16th,
1842, Messrs. Desha, Sheppard & Co. — Gent. Please pay over
to Dr. Joseph A. Smith, the proceeds of the fifty-one bales of
cotton, marked R. F. H., which cotton I shipped you, as trustee
in a deed of trust, executed by John B. Bunn to secure Thomas
L. Bevill and Joseph A. Smith, and much oblige your most ob't
serv't." (Signed,) "R. F. Houston, Trustee." This draft
was delivered to the plaintiff, its payee, who presented it to the
drawees. Payment was refused, Messrs. D, S & Co. insisting
upon their right to retain all but about five hundred dollars of the
proceeds of the cotton for the payment of demands which they
had against Bunn, and offered to pay that sum to the plaintiff, if
they were indemnified ; but the plaintiff declined receiving it up-
on the terms proposed, and caused the draft to be protested for
non-payment, and notice thereof duly sent to the defendant,
through the post office.
The defendant made no efforts to settle with D, S & Co.; they
were subsequently garnisheed by a creditor of Bunn, of which
the defendant had notice, but he never informed the garnishees of
his claim, except as above stated, and a judgment for about five
hundred dollars was recovered upon the garnishment. There
was no evidence that the plaintiff offered to return the draft ta
the defendant before he instituted this suit.
Upon this evidence the Court charged the jury, that matters
JUNE TERM. 1845. 739
Smith V. Houston.
of trust could only be settled in equity ; that though the defend-
ant might be there liable, or in an action on the case, they would
not consider this upon the issue before them. To make the de-
fendant liable, he must have made an express or implied agree-
ment for a valuable consideration. Had he received any benefit?
Had he possession of, or controlled the cotton, or became liable
by express agreement? Although there was a verbal agreement
that the cotton was to be held on the same trusts as the property
conveyed by the deeds, yet to constitute a trust it must have
been in writing. The verbal agreement did not prevent Bunn's
creditors from subjecting the cotton, or Messrs. D, S & Co. from
appropriating the proceeds to the payment of their demands
agj^inst him. That the order by the defendant did not impose a
liability upon him, as he drew as trustee, and that the defendant
if chargeable, should be sued in Chancfsry, or in another, form of
action ; his neglect to endeayor to collect the proceeds of the cot-
ton from Messrs. D, S & Co. did not authorize a verdict against
him in the present case.
R. H. Smith, for the plaintiff in error, made the following
points : 1. The facts proved fully sustained the last count in the
declaration, and the plaintiff was entitled to a verdict. 2. The
verbal agreement in respect to the cotton was good — no rule of
law requiring trusts to be in writing. 3. The order drawn by
the defendant would support an action. [Chitty on Bills, 1 1, 154
to 159, 593; 4 Porter's Rep. 205.] ^
4. If the order on Desha, Sheppard&Co. and their failure to
pay,' did not constitute a good cause of action, these, when
coupled with defendant's negligence, entitled the plaintiff to re-
cover. , ^ . .
F. S. Lyon, for the defendant, insisted, that the order for the
proceeds of the cotton, drawn by the defendant on Messrs. D, S
& Co. was not a bill of exchange and was not so treated by the
declaration. The facts disclosed, as well as the writing itself,
show, that it was not sustained by a valuable consideration. It
was given by the defendant to the plaintiff, to enable the latter to
receive the proceeds of the cotton, under an arrangement between
Bunn and the beneficiaries in the deeds of trust. [Waters v.
Carlton, 4 Porter's Rep. 205 ; 1 Bibb's Rep. 503.] .r ■•■.
740 ALABAMA.
Smitli V. Houston.
The plaintiff can't recover upon the common counts, because
the defendant did not receive any part of the proceeds of the cot-
ton ; nor could he recover in case on the ground of the defendant's
negligence. The plaintiff had interposed and undertaken to become
the collector of the money, and he should have returned the order
before he could ask the trustee to interfere. ,
Conceding that the charge of the Court was incorrect, in lay-
ing down legal propositions, yet, if from the entire facts disclos-
ed in the record, the plaintiff can't recover^the error of the Court
does not authorize the reversal of the judgment. [Porter v. Nash,
lAla. Rep. N.S.452.
COLLIER, C. J. — The facts proved at the trial did not sus-
tain, either of the common counts. They do not establish the
loan, advance, or payment of money by the plaintiff for the de-
fendant, nor do they show that the latter had received mo-
ney for the use of the former, or that he was indebted to
him upon an account stated. It appears that Bunn and one
of the beneficiaries in the deeds of trust marked the cotton
of the former with the initials of the defendant's name, ship-
ped it to Messrs. D, S & Co., and inlormed him thereof. To
reimburse the plaintiff for his advances, the order in question was
addressed to the consignees.
■ It will be observed, that the defendant never did take the cotton
into his possession ; it was merely shipped in his name for sale,
and there is no proof that he ever assented to the transaction by
undertaking to supervise the sale and withdraw the proceeds, to
be appropriated for the purposes provided, by the deed. The
reasonable inference from the case as presented to us, is, that the
defendant gave the order to the plaintiff merely to carry out the
agreement of the grantor in the deeds, and his sureties. No pre-
vious obligation rested upon the defendant in respect to the cot-
ton or its proceeds, and the order, under the circumstances, did
not impose on him the legal duty of coercing payment of Messrs.
D, S & Co., if they refused to honor it. It is not pretended that
any consideration moved to the defendant, which could make him
liable to make good the default of the drawees ; and the order,
.especially when connected with the extrinsic proof, shows a case
in which the defendant was employed as a mere instrument for
JUNE TERM, 1845. 741
Smith V. Houston.
the performance of a gratuitous duty, which others had devolved
upon him.
The defendant has done every thing which he undertook to
do. He has directed the payment of the money to the person
entitled to it ; whether paid or not, his legal and moral duty is at
an end, and he cannot.be required to compel the consignees to
account for the proceeds of the cotton. This conclusion seems to
us, to result so clearly from the nature and extent of the defend-
ant's engagement as trustee, that the argument to sustain it, will
not admit of amplification.
Without stopping to inquire whether the last count is unobjec-
tionable, we are inclined to think that it is not sustained by the
proof. It allcdged that Messrs. D, S & Co. « had received said
cotton for sale from said defendant, for the benefit of plaintiff and
Bevill, as aforesaid," &c. Now although it is alledged that Bunn
had agreed to give the plaintiff the control of his cotton crop, yet
we have seen that the agreement was not performed, and that in-
stead of placing it in the defendant's possession, or shipping it to
his order, Bunn and Bevill merely marked it in his name, and ship-
ped it to the consignees. This proof does not sustain the allega-
tion that the defendant was the shipper of it, or that Messrs. D,
S & Co. received it from him. It does not appear that the con-
signees were instructed to sell for the account of the defendant,
or to place the proceeds to his credit. There is then, a defect in
the proof, in showing that the cotton was placed under the de-
fendant's control. Whether he might not, by the employment of
legal coercion, have compelled Messrs. D, S & Co. to account to
him, we need not consider, as he wxis under no obligation to
adopt such measures. And perhaps, if such an iniuiry were
now proper, no satisfactory conclusion could be attamed from
the facts in the record. The statement in the order, that the de-
fendant had shipped the cotton, as trustee, does not conclude the
defendant against the facts proved at the trial.
The discrepancy noticed between the allegation and the proof,
relates to a part of the account as material as any other, if indeed
all of it together states a legal duty. From this view of the case,
it results, that the plaintiff did not sustain his declaration, that he
was not entitled to a verdict, and whether the charge to the jury
laid down the law correctly or not, it worked no injury to him,
742 ALABAMA.
Woods' adm'rs v. Brown.
and the error, if any, does not authorize a reversal of the judg-
ment.
The conclusion expressed, relieves us from the necessity of
inquiring whether, if the special count be bad, yet supported by
the evidence, a general charge against the plaintiff would furnish
a ground for a reversal, or whether the plaintiff should not have
prayed the Court to instruct the jury on that count alone. See
Cullum v. The Branch Bank at Mobile, 4 Ala. Rep. 39.
We have only to add, that the judgment of the Circuit Court
is affirmed.
WOODS' ADM'RS v. BROWN.
1. Where the counsel for both parties agree that an exception taken at the
trial shall be examined after the adjournment of the Court, and the bill of
exceptions then sealed and allowed, this is not a failure or refusal of the
Judge, within the act of 1826, so as to warrant the Supreme Court to allow
the exceptions.
After the bill of exceptions was stricken from the record, a
motion was submitted on behalf of the plaintiffs in error, to file it
as the exceptions taken at the trial, and to proceed with the cause
in the same manner as if it had been certified by the Judge who
tried the cause. In support of the motion, the certificate ap-
pended to the bill, which has already been stated supra 563, was
read as evidence, in addition to an affidavit of one of the counsel,
setting out the same facts substantially.
Hopkins and Edwards, in support of the motion, insisted that
the facts disclosed seemed to present a case directly within the
act of 1826. [Clay's Digest, 307, § 5.]
G. W. Gayle, contra, argued, there could be no failure when
the Judge actually had sealed and allowed the exceptions. The
JUNE TERM, 1845. 743
Knotts V. Tarver.
fact;: shew only that the bill was sealed and allowed at atinae
when the Court had no power whatever to act.
GOLDTHWAITE, J.— My own opinion is, that the act of
1826, in one of its aspects, was intended to cover precisely such
a case as this. It provides for the failure of the Judge, as well
as for his refusal to certify an exception ; but it does not follow
that a failure must be established in the same manner as a refu-
sal. I can conceive of no case of failure, except the single in-
stance of the death of the presiding Judge, in which the act of
1826 can afford relief, if it is denied in this case. But in this
opinion I stand alone ; the other members of the Court consider
the case merely one of great hardship under the circumstances,
as every thing was conducted with perfect fairness and good
faith. ' In their judgment there is nothing in the case, as presented,
which shows any failure or refusal on the part of the Judge, and
therefore that it is not within the intent or meaning of the act.
Motion refused.
KNOTTS v. TARVER.
1. It is not sufficient to give a Court of Chancery jurisdiction, that an account
exists between the parties, or that a fraud has been practised. There
must be a discovery wanted to disclose the fraud, or in aid of the account,
or the accounts must be so complicated, as to require the aid of a Court of
Chancery to adjust them.
Error to the Chancery Court of Russell.
The bill was filed by the plaintiff in error, and charges in sub-
stance, that the defendant as his agent, undertook to purchase for
him from one John Freeman, a tract of land which is described.
That it was supposed the land could be purchased for 81,100,
and to enable the agent to make it, he executed two notes paya-
744 ^ ALABAMA.
Knotts V. Tarver.
ble to Freeman, for $550 each, and delivered them to him. That
he proceeded to make the purchase, and did purchase the land
from Freeman for $1,100, giving him the two notes of complain-
ant, and taking a bond for title from Freeman to complainant.
That on his return, he represented to complainant, that he was
compelled to pay Freeman $1,500 for the land, before he could
obtain it, and that in addition to the two notes for $1,100, he had
paid Freeman $400 of his own money. That complainant, sup-
posing his representations to be true, paid him $330 in cash, and
executed his note to him for $70, all of which except five dollars
he has paid. The bill charges fraud, prays a discovery, and for
a decree for the money thus fraudulently obtained by the agent.
Tarver denies the material allegations of the bill, but they are
fully sustained by the evidence.
The chancellor, at the hearing, dismissed the bill for want of
equity ; from which this writ is prosecuted.
McLester, for plaintiff in error. — The complainant is entitled
to recover the money fraudulently obtained by the agent, as so
much money paid for his own property. [1 Sug. on Vend. 307 ;
1 Vesey, sr. 126 ; 2 Id. 304 ; 4 Bibb, 343.]
The Court having jurisdiction for discovery, will retain it for
relief [1 Story's Eq. 87 ; 10 Johns. Rep. 587 ; 7 Cranch, 69.]
The jurisdiction of the Court is sustainable on the ground of
fraud, [1 Story's Eq. 85,] and also because an account was ne-
cessary to ascertain the amount due on the note unpaid.
Peck, contra, insisted that the party had a full and adequate
remedy at law. ' • \:'. ' . ; . .
ORMOND, J.^ — If this bill can be sustained, it must be on the
ground of fraud, or that there is an account to be settled between
the parties. These acknowledged heads of equity, are not of
themselves sufficient to confer jurisdiction on a court of chancery.
No matter how gross the fi'aud may be, if the party can have full,
complete and adequate redress at law, he cannot go into a court
of equity. This is a well established principle, and the contrary
doctrine would fill the courts of chancery with suits, which could
be. better, and more cheaply adjudicated in the courts of law.
The principle was recognized by this Court, in Sadler v.- Robin-
"4 JUNE TERM, 1845. 745
Givens, et al. v. Tidmore.
son, 2 Stewart, 5, 22. The Court say, « no reason is suggested
by the bill, why the appellee's cannot have justice administered
to them at law ; no discovery is asked for, as essential to enable
them to prosecute their rights, no deficiency of strict legal proof is
complained of. On what ground, then, the appellees ask the in-
terposition of equity, we are unable to comprehend. It cannot
be, because they charge their vendor with fraud, for every cir-
cumstance alledged as fraudulent, could it avail them, is fully ex-
aminable at law."
We have quoted this passage, because it is precisely apposite
to this case. Here, no discovery i^^^ought from the defendant,
to enable the complainant to establish his case, and no obstacle
shown to a full and complete remedy at law.
Nor is there any reason for sustaining the jurisdiction on the
score of an account. There is in truth no matter of account be-
tween these parties, and if there was, that circumstance alone
would not confer the jurisdiction. There must be a discovery
wanted in aid of the account, or to disclose the fraud, or the mat-
ters involved in it must be so complicated as to require the aid of
a court of chancery to adjust them, otherwise there is a complete
remedy at law. (See this question fully examined in V&nlier v.
Kirkman, 7 Ala. 217.)
The note which was executed by the complainant to the agent,
upon his false representation, is void, and no obstacle exists to a
full defence at law. Although the bill discloses a gross, and most
offensive frhud, wc are constrained to refuse relief, when sought
in this mode. The decree of the chancellor dismissing the bill,
must therefore be affirmed.
GIVENS, ET AL. v. TIDMORH. ■•
1. A party bearing the same name with one 'of several defendants in a judg-
ment may resist the levy on, and sale of his i)roperty under ajierifaciashy
siiit in equity, upon the allegation tliat he is not a party to the note on -
94
746 ALABAMA.
Givens, et al. v. Tidmore.
which the action was founded, and that he was not served witli process,
2. Where a party against whom a judgment is sought to be enforced, al-
ledged in a bill for an injunction, that he was not served with process, and
did not make the note on which it was founded, the deposition of a per-
son of the same name, declaring tliat he made a note of the same amount
and date in which the complainant did not unite, will be sufficient to sus-
tain tlie latter branch of the allegation, if uncontradicted.
3. An answer which negatives a positive allegation, by way of opinion and
belief may be overbalanced by proofless stringent and conclusive, than if
the defendant's denial had been made upon his own knowledge.
4. It is a general rule, that the party holding the affirmative of the issue, must
support it by proof; but this rule has its exceptions.
5. Where, by a bill to enjoin a judgment recovered on a promissory note,
the record of the proceedings at law, and the note, are all made evidence,
proof in respect to the non-execution of the note should not be excluded
because the note is not produced.
6. Where it appears from the process at law, that it was served on an indi-
vidual bearing the same name of the complainant in equity, who alledges
in his bill, that it was served on him, the presumption will be against the
truth of tlie allegation ; but when it is shown that the note on which the
action was founded, was not made by the complainant, but by another per-
son of the same name, resident in the same county, the presumption will
be repelled, and the onus of showing that the writ was executed on the
complainant will devolve upon the defendant
Appeal from the Court of Chancery sitting at Jacksonville. .
In October, 1842, defendant in error filed his bill, setting forth
that at the County Court of Benton, holden in July preceding, a
judgment was rendered againnt him and one William Tidmore,
in favor of Messrs. Heradon & Kelly, for the use of James A.
Givens, for the sum of ^1438 debt and damages, besides $14 06i
costs. An execution was issued on this judgment, which was
levied on the complainant's land. Further, the judgment was
recovered without any notice by the service of legal process or
otherwise, given to the complainant, and he affirms that it is un-
just and oppressive, as he never, by note, account or otherwise,
•yvas liable to Herndon &c Kelly, or Givens, in any manner, or for
any cause. Complainant cannot particularly impeach the judg-
ment, as he is a stranger to the grounds upon which the suit was
prosecuted against him, but he charges that it is fraudulent, and
without consideration, and the result of an unlawful combination
JUNE TERM. 1845. 747
Giyens, et al. v. Tidmore.
between Hemdon & Kefty, Givens and Wm. Tidmore, all whom
are made defendants. The bill concludes with a prayer, that
process of subpoena may issue, and that all further proceedings
upon the execution may be enjoined as it respects the complain-
ant, until the matters allcdged shall be heard and determined in
equity. An injunction was accordingly granted and issued.
Hemdon & Kelly, in their answer, admit the rendition of a
judgment against the complainant, upon a note made by him and
Wm. Tidmore, and which was received by the respondents un-
der these circumstances, viz: Previous to making the note, Wm.
Tidmore came to the respondent's store, in Jacksonville, to pur-
chase goods, but not being disposed to sell to him on a credit,
required surety to be given ; he informed them that he could give
either of his brothers, the complainant, or Adam Tidmore. One
of the respondents then wrote a note for the amount of the bill
of goods, which was signed by Wm. Tidmore, who took the note
and went off, as he said, to obtain the signature of one of his bro-
thers. In throe or four days he returned and presented the note
to the respondents, subscribed with the complainant's name, and
not doubting the genuineness of the signature, they received the
note and delivered the goods. The complainant and William
Tidmore, resided several miles from respondent's place of busi-
ness, but near to each other. Respondents never heard, until
a considerable length of time after they had transferred the note
for a valuable consideration, that the complainant's signature was
denied ; the goods sold by them to William Tidmore^ were taken
near the complainant's residence, and they believe he was aware
of the entire transaction, signed the note, or if he did not, knew
that William Tidmore practised a fraud upon the respondaits,
and connived at it. The answer also embraces a demurrer to
the bill.
The defendant, Givens, states that he traded for the note in
question with his co-defendant, Herndon, on the 21st July, 1841,
who transferred the same by his indorsement ; that respondent
caused suit to be brought thereon against John and Wm. Tid-
more, to the first Court of the county of their residence, which
was holden after he received the note ; that he is informed, and
believes, that process was regularly issued and served, ujwn both
of them, and that failing to make defence, a judgment by default
was rendered against them at the second term thereafter. Res-
748 ALABAMA.
Givens, et al. v. Tidmore.
pondent knows nothing of the execution of the note, but believes
that it was made by both the Tidmores whose names appear as
makers. He denies all fraud, &c., and in his answer insists upon
the benefit of a demurrer.
Wm. Tidmore answers and says, that the John Tidmore who
united with him in making the note in question, is not the same
who has exhibited the bill in this cause, but another and different
person ; that he does not know whether process was ever serv-
ed on the complainant informing him of the pendency of the suit
at law, or whether his co-maker was ever served with such pro-
cess.
Depositions were taken at the instance of the complainant, in
which it is positively proved that a note was made by a son of
the defendant, Tidmore, (together with his father,) who bears the
same name as the complainant, dated about the 15th April, 1841,
for the payment, on the 1st of January thereafter, of a sum
between thirteen and fourteen hundred dollars to Messrs. Hem-
don & Kelly.
The Chancellor was of opinion, upon a view of all the circum-
stances, that the note in question was not made by the complain-
ant, but by the defendant Tidmore and his son ; this being so,
he concluded that it must be intended that the process issued in
the suit at law, was served on the makers of the note, consequent-
ly it was ordered and adjudged that the injunction be perpetuat-
ed, and that the defendants, Messrs. Herndon & Kelly, and Giv-
ens, pay the costs of the suit.
S. F. Rice, for the plaintiff in en'or, made the following points:
1. The complainant should not have sought relief in equity, even
conceding the truth of every allegation in his bill ; but he should
have prosecuted a writ of error to reverse the judgment, because
process had not been served on him, and upon the cause being
remanded, he should have denied that he made the note, and had
the issue tried at law. 2. The allegations of the bill are not sup-
ported by proof — the note was not produced — the witnesses
speak of a note, but they do not identify the one in question. The
want of proof cannot be supplied by using the defendant's an-
swers as evidence against each other. [Moore, et al. v. Hub-
bard, et al. 4 Ala. Rep. 187.] 3. There is no evidence that the
writ was not served on the complainant ; this might have been
JUNE TERM, 1845. 749
Givens, et al. v. Tidmore.
shown, by the officer who was charged with its execution, or per-
haps by the production of the process, if the allegation is true in
point of fact. If he had notice, and failed to defend at law, he
cannot come into equity. [French v. Garner, 7 Porter's Rep.
549.] 4. Conceding that the note of which the witnesses speak
agrees in description with the one in question, yet there is no
proof of its delivery, but for any thing appearing to the contrary,
it may have been destroyed, ^ffhe complainant might have ex-
amined the defendant, Wm. T., on this point, but the defendants
could not, because his interest was favorable to their success. 5.
It was objected at the hearing, that the proof made by the com-
plainant in respect to the note, was not admissible, because the
note itself was not produced, or its absence accounted for, and
though the objection does not appear in the original decree, yet
the Chancellor certified it by way of amendment ; and it is insist-
ed that it should be sustained. G. Lastly; the complainant al-
ledges that the judgment was obtained against him, and he al-
ledges no excuse for not defending at law.
W. B. Martin, for the defendant in error.
COLLIER, C. J. — It does not appear, either by the bill, an-
swers, or proof, that the record of the cause at law, shows that
the process was not served on the complainant, but the fair in-
ference is, that the record does not sustain the allegation of the
bill, or the Chancellor would doubtless have noticed it in his de-
cree. Be this as it may, the complainant was not bound to sue
out a writ of error to reverse the judgment, that he might defend
himself at law, but he might waive his legal remedy, if an appel-
late Court could have afforded one, and seek to annul the judg-
ment against him through the medium of a Court of Equity. Rey-
nolds v. Dothard, et al. 7 Ala. Rep. 664, is conclusive upon this
point.
This case does not come within the influence of Lockhart, et
al. v. McElroy, 4 Ala. Rep. bl2, in which it was held to be com-
petentfora Court to prevent an improper from use being made of an
execution issued under its authority, by awarding a supersedeas;
and this although the objection does not appear of record. Here
the objection is not, that the execution was not warranted by the
judgment; this is conceded by the bill, which affirms that the
750 ALABAMA.
Givens, et al. v. Tidmore.
judgment has been rendered against the complainant. , The ques-
tions to be considered, arc, docs the case stated in the bill author-
ize the interference of equity, and is the decree supported by the
proof?
It is explicitly alledgcd that the judgment was rendered against
the complainant without consideration, fraudulently, and though
no notice was given him of the pendency of the suit, by the ser-
vice of process or otherwise. 'Jaking this to be true, and it is
clear that there was no opportunity to defend at law. If, under
such circumstances, Chancery could not give relief, then the com-
plainant, though he have moral justice on his side, and might
have made defence at law, if he had notice, is now remediless
without any fault of his. It may be that the sheriff's return is a
matter of record, and cannot be falsified by a plea, yet we have
have always considered, that it is not so conclusive but a defend-
ant may alledge the want of notice as an excuse for not making
defence at law. [See Brooks, et al. v. Harrison, 2 Ala. Rep.
209 ; Gibbs & Labuzan v. Frost & Dickinson, 4 Ala. Rep.
720.]
It does not appear, by proof so conclusive as to make it impos-
sible to be otherwise, that the son of the defendant, Tidmore,
signed the note in question instead of the complainant. Yet we
think it cannot be reasonably doubted, that the note of which the
witnesses spoke, is the one on which the judgment was obtained.
They agree in their amounts and dates, and as it does not appear
that the son ever signed more than one note for his father, it may
be fairly inferred that the complainant did not unite with the fa-
ther as a co-maker ; especially, in the absence of all proof tending
to such a conclusion. ,
The defendants do not positively affirm that the service of pro-
cess was effected upon the complainant, but their answers are
merely an expression of their opinion or belief. To overbalance
such a denial of an allegation, it certainly does not require proof
the most stringent and conclusive. .. • ...
It is a general rule, that the party holding the affirmative of
the issue, must sustain it by proof, but there are some exceptions
in which the proposition, though negative in its terms, must be
proved by the party who states it. One class of these excep-
tions, it is said, includes those cases in which the i>\amUff grounds
his right of action upon a negative allegation, and where, of
JUNE TERM, 1845. 751
Givens, et al. v. Tidmorc.
course, the establishment of this negative is an essential clement
in his case. But where the subject matter of the negative aver-
ment lies peculiarly within the knowledge of the other party, the
averment is taken as true, unless disproved by that party. Such
is the case in civil or criminal prosecutions for a penalty for doin^
an act which the statutes do not permit to be done by any persons,
except those who are duly licensed therefor. So where the nega-
tive allegation involves a charge of criminal neglect of duty,
whether official or otherwise; fraud, or wrongful violation of actual
lawful possession of property, making the party the allegation must
prove it. So where infancy is alledgcd, illegitimacy, (under some
circumstances,) insanity, or death, where the presumption in favor
of the latter cannot be indulged from lapse of time; the burden of
proof is on the party making the allegation, notwithstanding its
negative character. [Greenl. on Ev. 89 to 92; Gresly's Eq.
Ev. 288-9; C. & H.'s Notes, to Phil. Ev. 483 to 486, 490-1,
544-5 ; Carpenter v. Devon, et al. 6 Ala. Rep. 718.]
In respect to the objection, that the proof offered by the com-
plainant, touching the note, should not have been received, we
think it cannot be supported. The bill and answers all admit
the existence of the note to which it is supposed the testimony
relates, as the foundation of the action in which the judgment was
recovered. It is conceded that such a note as is indicated by
the record is really in existence, and the only question is, wheth-
er it was made by the complainant or some one bearing his name,
The pleadings make the note, with all the proceeding at law
thereon, evidence. Either of the parties may use it, if they think
proper, but the failure to produce the note, 'will not render in-
competent all evidence tending to show which of several per-
sons of the same name made it. If such evidence is insufficient,
without the production of the note in fact, of course the Chan-
cellor will only accord to it its proper effect, but there would be
no warrant for its exclusion in toto.
If it appeared from the writ, that it was served upon an indi-
vidual of the complainant's name, the prima facie intendment
would be, that it was duly executed, and that he had notice of
the pendency of his suit. But whenever it was shown that the
complainant was not a party to the writing, but it was made by
another person of the same name, resident in the same county,
then the prcsuiwotion would be wholly repelled, and no inference
752 ALABAMA.
Parks V. Stonum.
adverse to the complainant could be predicated of the sheriff's
return. In this predicament of thq case, it would be incumbent
upon the defendants to show that the complainant was served
with process, in order to fix on him the imputation of neglect, and
thus prevent him from asserting his defence in equity. It fol-
lows from this view, that the injunction was perpetuated upon
satisfactory evidence ; the decree is therefore affirmed.
PARKS V. STONUM.
■ 1. The rendition bf a decree by the Orphans' Court, for the distributive share
of the wife, in the name of tlie husband alone, is a clerical mispision^ani
maybe amended; it is not an error of which he cai^ complain.
2. Where infants are cited and do not appear, it is not error to render a de-
. cree without tlie appointment of a guardian ad litem.
3. When the record states, " that the exhibits and accounts, were ordered to
be recorded, and spread upon the minutes of the Court, and reported for
allowance," at a particular day, more than forty days afterwards, it is equi-
valent to stating that tlie accounts were examined and audited.
4. When the Orphans' Court of Conecuh directed notice to be published of
the time of the settlement for six weeks, in a paper in Mobile, it is suffi-
cient if tlie first publication is made as, soon after the Court as might be.
Writ of Error to the County Court of Conecuh.
The writ of error is sued out by those ascertained, by the final
decree, to be entitled to distribution of the estate of Joseph Sto-
num, deceased, against George Stonum, the executor of said Jo-
seph, to revise the proceedings had in said Court, on the matters
of the estate, at, and previous to, the final settlement
So much of the record as is material to the understandmg of
the errors assigned will be recited.
Letters testamentary were granted to George Stonum, on the
18th of April. 183G, and some time afterwards, ^hen, does not
JUNE TERM, 1845. 753
Parks V. Stonum.
appear from the transcript,) he was appointed guardian to Sea-
born, George, Sylvia, John, Henry, and Bryan, minor heirs of
the said Joseph.
On the 11th of June, 1838, the executor presented an account,
charging himself with the sum of $2,386, on account of notes be-
longing to his testator, as his part of the uncollected notes of the
firm of Geo. & J. D. Stonum, as well as for some other items of
personal property ; also, two other accounts, showing assets to
the amount of $7,365.
The Court ordered that the account should be received and
spread on its records, and reported for allowance on the first
Monday in August then next. Also, that notice according to
law be given of the same. By a subsequent order, the date of
which docs not appear, this account was allowed, the necessary
notice, as the record recites, having been given.
On the 3d of September, 1842, the executor, in compliance with
an order previously made, (at whose instance, or when, docs not
oppear,) appeared and presented his exhibits, accounts, and vouch-
ers, for a final settlement of the estate. The vouchers were re-
ceived and ordered to be filed in the clerk's office, and the exhi-
bits and account ordered to be received and spread on the min-
utes of the Court, and reported for allowance at the regular re-
turn term of the Court, on the third Monday of October then next.
The account thus reported for allowance, seems to be a full ac-
count of the estate, and ascertains the sum of 834,956 19, to be
due from the executor, and divisible between six heirs, who are
not named, making the share of each $5,826 03, due on the 1st
January, 1839.
At the regular return term, held on the 17th of October,
1842, the executor came and made his application for a final set-
tlement.
It appeared to the satisfaction of the Court, that the notice for
the final settlement had been published for six weeks in the Mo-
bile Advertiser, requiring all persons interested in said estate to
appear at the time fixed for the final settlement, and except, plead,
or demur to said exhibit, and no person appearing to except,
plead, or demur »to said exhibit, it was therefore ordered that the
said exhibit be allowed to, &c., and that the same be held and
taken as a final settlement. The Court then proceeded to ascer-
tain that the executor was indebted to the several heirs of the
95
754 ALABAMA.
Paxks V. Stonum.
said estate in the following manner, to wit: John Crittenden,in right
of his wife, formerly Caroline E. Stonum,heir of the said Joseph D.
for $5,826 03 ; in favor of George D. Stonum, another heir for
the same sum ; in favor of Henry B. Stonum, another heir, for
the same sum ; in favor of Joseph Stonum, another heir, for the
same sum ; in favor of Martha Stonum, another heir, for the same
sum ; and in favor of George Stonum, another heir, for the same
sum; making the aggregate of the sum to be distributed. The
Court then proceeded to render judgment in favor of Crittenden, in
right of his wife, and in favor of said heirs, in the name of their
next friend and guardian John Crittenden for the several sums so
ascertained.
Afterwards, on the 25th May, 1843, the executor was appoint-
ed guardian to George D. and on the 2d of November, 1843, he
presented his accounts as guardian of George D., Martha, John,
Henry B. and Joseph D. the said minor heirs of Joseph D., and
charged himself in that character with their several distributive
shares, with interest from the 1st January, 1839. Afterwards,
on the 13th February, 1844, he presented an account of his guar-
dianship of Martha D., and exhibited the receipt of Isaac C.
Parks, purporting to be in right of his wife, the said Martha.
At the same time he exhibited an account current between
himself and Crittenden and wife, showing a payment of the en-
tire sum due them.
The writ of error is sued out in the names of the minors, they
suing by their next friend, Isaac C. Parks ; and Parks, in right of
his ,wife, as well as Crittenden, are made parties.
The errors assigned are these —
1. In rendering judgment for Crittenden, in right of his wife.
2. In proceeding to final settlement without the appointment
of a guardian, ad litem, for the minor distributees.
3. In not having audited and examined the account of 1 1th
June, 1838.
, 4. In allowing that account, no notice having been given.
5. In not having audited and examined the account for final
settlement.
6. In allowing the account — the notice required by law not
having been given.
7. In rendering the order, or,decree, for final settlement.
♦ JUNE TERM, 1845. . 755
Parks V. Stonum.
Leslie, for the plaintiffs in error, cited the following cases^—
On the first assignment, Blackwell v. Vastbinder, 6 Ala. Rep.
218. As to the 2d, 4 Ala. Rep. 121— 3d and 5th, Clay's Dig. 226,
§ 27. As to the 4th and 7th, lb. 226, § 27.
No counsel appeared for defendant in error.
GOLDTHWAITE, .T.— The circumstance that the judgment
for the distributive share of Mrs. Crittenden, was rendered in fa-
vor of the husband, in right of his wife, is not an error of which
he will be heard to complain, as it is a matter which results to
his benefit, if it has really any effect whatever, and because it
was induced by his own action. It is possible the executor might
complain of this as an irregular judgment, as was the case in
Blackwell v. Vastbinder, 6 Ala. Rep. 218, but even if the com-
plaint was by him, the error would be considered as a clerical
misprision, and corrected so as to render it in favor of husband
and wife.
2. It is also urged as a reason for reversal, that^he settlement
was made against infants, and that no guardian ad litem was ap-
pointed to protect their interests. This would be an error, if the
infants had appeared previous to the decree of final settlement,
and for the purpose of contesting it, (Taylor v. Reese, 4 Ala. Rep.
121,) but the record recites that no one appeared to contest the
account reported for allowance, and the consequence is, that it
cannot now be set aside, if the proceedings of publication and
auditing have been in conformity with the statute. The judgment
rendered in favor of the distributees seems to have been pro-
nounced after the final settlement, and was entirely within the ju-
risdiction of the Court, if the executor was cited, or assented to
the judgment. See Graham v. Abcrcrombie, at this term.
3. It is said however, that the proceedings preparatory to the
final settlement, are not in accordance with the statute, and pre-
vious decisions of this Court, inasmuch as the account was not
examined and stated for allowance by the Judge of the County
Court. The act which governs these proceedings, is that to be
found in Aikin's Dig. 183, § 27, and provides that the Judge of
the County Court, after examining and auditing the accounts pre-
sented by the executor, &c. and causing them to be properly sta-
ted, " shall report the same for allowance to the next term of the
m
■756 ALABAMA.
Parks V. Stonum.
Orphans Court," the executor, &c. giving at least forty days no-
tice of his intention of having such account presented to the said
Court for allowance at such term. In Horn v. Grayson, 7 Por-
ter, 270, we say, " If an executor, &c. wishes to settle his ac-
counts, the law makes it his duty to present his vouchers to the
Judge of the County Court, who is to hear, examine and state
them, and report them for allowance. The object of the law is
manifest. The account is to be stated — that all persons interest-
ed in it may examine it, and prepare, if necessary to contest it."
Again, in Douthitt v. Douthitt, 1 Ala. Rep. 594, we say, " the
Judge should have caused the account of the administrator, so far
as it seems to be properly vouched to be stated at length
and in form, that the true condition of the estate mighl|be seen at
one view. This being done, the account would be open to ex-
ception, in the same manner that the report of a Master in Chan-
cery is; hence the publication should give notice of the time
when the Judge of the County Court would report the account
for allowance. And upon publication being duly made, and no
exception taken or allowed, the account as stated should be al-
lowed." In the present case, the record does not state that the
Judge examined and audited the accounts, in the precise terms
of the act, but the exhibits and accounts were ordered to be re-
ceived and spread upon the minutes of the Court and reported
for allowance at a particular day, more than forty days after-
wards. We tliink this must be considered as equivalent to stat-
ing that the accounts were examined and audited, for otherwise
there is no reason, either for the order to place the account on
the minutes or to report it for allowance.
Our conclusion on this point is, that the record shows substan-
tially a compliance with the statute, and therefore there is no er-
ror in this particular.
4. It is further objected, that the allowance of this account
was irregular, because the notice prescribed by law was not giv-
en. The order for publication was made on the 3d September,
and directed to be published for six weeks in the Mobile Adverti-
ser. The settlement was to be had on the 17th of October. Con-
ceding that it would take more than a day for the advertisement
to pass from Conecuh to Mobile, this circumstance will not affect
the order, as even then more than forty days notice might be
JUNE TERM, 1845. ^,., ta%
_ . i
Wilson V. Calvert, AcLn'r. ** 'i*-"
given, and all that could be required under the order was to pub-
lish it as soon after the Court as might be.
5. With respect to the accounts supposed to be allowed on the
11th June, 1839, it may be said, that even if there was a manifest
error in this, we do not see how it can be re-examined after a
valid final settlement. But the efiect of that account seems to
be entirely misconceived ; it is not an attempt to charge the es-
tate, but is a return by the adminstrator of certain assets belong-
ing to it, which have come to his hands, and its allowance or dis-
allowance could produce no conclusive effect upon the final set-
tlement of the estate.
On a review of the whole transcript, we can perceive no error
which mjuriously affects the parties now complaining, and there-
fore the judgment is affirmed.
WILSON V. CALVERT, ADM'R.
1. Confessions, or admissions, must be talvcn altogether, but tlie jury arc not
bound to give equal credence to every part of tlio statement When the
admission is not a whole, or entire tiling, but consists of parts, the jury can-
not capriciously reject the portion favorable to tlic party making it ; though
slight facts or circumstances would be sufficient to justify them in disre-
garding it.
2. In such a case, the jury, and not the Court, is the proper judge of the cre-
dit to be given to the different parts of the admission.
Error to the County Court of Mobile.
Assumpsit by the defendant, against the plaintifl'in cn-or.
The declaration contains the common counts. The defend-
ant pleaded non-assumpsit, set oflj and the statute of limitations.
Upon the trial, it appears by a bill of exceptions, that the plain-
tiff proved a presentation, in 1841, of an account attached to the
bill of exceptions, which is made out against the defendant, in fa-
r5S ^^ ALABAMA.
Wilson V. Calvert, Adm'r.
vor of Charles Hammond, which includes the amount of two
other accounts against the defendant, in favor of Ilogan & Ham-
mond, and that the defendant, after looking over it, said, that it
was correct, but that he had a larger demand against Hammond,
plaintiff's intestate. Defendant and Hammond were merchants
in Mobile, and had mutual dealings. This being all the testimo-
ny, the defendant requested the Court to charge the jury, that
under the testimony, they must find for the defendant ; and fur-
ther, that the plaintiff was entitled to recover nominal damages
only. These charges the Court refused, and charged the jury,
that if they believed the testimony of the witness, they must find
for the plaintiff the amount of the account ; to which the defend-
ant excepted, and now assigns for error.
Fox, for plaintifTin error.
K. B. Sewall, contra, cited Greenl. Ev. 233; 17 Pick. 183;
Ry. & M. 257 ; 1 Dall. 240, 392 ; Douglass, 757 ; 5 Ala. Rep.
20, 616 ; 2 Stew. 445 ; 4 S. & P. 52.
ORMOND, J. — The established rule, as to confessions, or ad-
missions, is, that they must be taken altogether, that which makes
for the party, as well as that which makes against him. But the
jury are not bound to give equal credence to every part of the
statement ; they may for sufficient reasons, give effect to one part
of the admission, and reject the other. What facts, or circum-,^
stances, would authorize the jury to reject one part of the state-
ment, and receive the other, is a question not raised upon the re-
cord. It may however be stated, that where the admission is
not a whole, or entire thing, but as here, consists of parts, though
the jury may reject the part, making for the party asserting it,
such rejection cannot be capriciously made, though evidence of
slight facts, or circumstances, would be sufficient to authorize the
jury to refuse to give credence to a part of the statement. [Smith
V. Hunt, 1 McCord, 449 ; Newman v. Bradley, 1 Dall. 240 ;
Turner v. Child, 1 Dev. 133; Randle v. Blackburn, 5 Taunton,
245.]
The charges moved for, were properly rejected, as they pro-
pose to take from the jury, the right to judge of the credit to be
given to the different parts of the admission, and for the same
JUNE TERM, 1845. t9^ 759
Leach v. Williams and another.
reason, the Court erred in the charge given, by which it assum-
ed to charge upon the facts, and in efFect directed the jury to re-
ject all that part of the testimony, by which the defendant dis-
charged himself. ^
Let the judgment be reversed and the cause remanded.
LEACH V. WILLIAMS AND ANOTHER.
1 . Whether an attorney at law, charged witli the collection of a debt be au-
thorized to receive money upon an execution of a stranger under an agree-
ment witlihim, that the execution shall remain open for his benefit, is not
material, if the money thus received is paid over to the plaintifFin the judg-
ment ; in such case tlie party thus paying tlie money shall be entitled to an
exetion in their names for his reimbursement.
2. In a contest between execution creditors, it appeared that an original,
alias, s.nipluriesji.fa. had regularly issued upon the defendant's judgment,
the last of which was placed in the sheriff's hands, before the original ft.
fa. in favor of tlie plaintiff issued : Held, that no question could arise as to
tlie dormancy of the defendant's first f. fa. as between him and the plain-
tiff— as his subsequent executions, which were regularly proceeded in,
were entitled to priority of the plaintiff's.
3. Where goods levied on are removed by the defendant, or by his permis-
sion or connivance, or are delivered to him under a forthcoming bond,
which he forfeits, the plaintiff may have a new f. fa.
4. The sheriff should levy a^. fa. on a sufficiency of the defendant's pro-
perty, if to be found, to satisfy it; but tlie mere omission of tlio sheriff to
do his duty in tliis respect, will not postpone an elder to a junior fi. fa. at
the suit of another party.
5. The remark of the plaintiff in &fi.fa. to tlie sheriff, that he would do no-
thing that could affect his lien, nor must he (the sheriff,) do any tiling that
would cause him to lose it, but if he failed to make the money by a sale of
property, he would not rule him, will not make tlie /. fa. dormant and in-
operative, if the sheriff failed to proceed thereon, unless tlie plaintiff intend-
ed to assent to, and approve the delay, with the view of aiding the defend-
ants, or protecting their property.
m ■
760 ALABAMA.
Loach V. Williams and another.
Writ of Error to the Circuit Court of Perry.
This was a proceeding under the statute, suggesting that a
writ of fieri facias had been issued from the Circuit Court of
.Perry, at the suit of the plaintiff in error, against the goods, &c.
of McLaughlin & Townes, and placed in the hands of the de-
fendant, Williams, as sheriff of that county, for execution, who
failed to make the money thereon three days previous to the
term of the Court when the same was returnable, although the
money could have been made by due diligence. The plaintiff
made a special statement of the facts, of which his right to re-
cover is predicated ; from this it appears that the liability of the
sheriff depends upon the fact, whether the plaintiff'sj^./a. or one
in favor of Messrs. Dunn, Mcllvain & Brownlee, (of which John
Lockhart claims to be assignee,) is entitled to priority. Notice
was given to Lockliart, of the proceeding against the sheriff, and
he was permitted to come in and unite in making defence against
the suggestion. By consent of parties, the facts and law of the
case were submitted to the Court, and judgment was rendered in
favor of the defendants, and against the plaintiff for costs.
The facts of the case are certified, on which the judgment of
the Court is founded, and the plaintiffs exception thereto. It is
stated, that the plaintiff produced the several writs ofji.fa. issu-
ed on his judgment ; the first of which went into the hands of the
defendant, Williams, as the sheriff of Perry, on the 14th Decem-
ber, 1843, and on the 17th January, 1844, was levied on three
slaves, the property of the defendant, McLaughlin. A replevy
bond was executed for the delivery of these slaves, on the first
Monday of February thereafter, which was forfeited, and so cer-
tified on the 5th February. On the 12th of the same month, a
second yZ. fa. issued on the forfeited bond, and was rcturtied "no
property Ibund," on the 3d May, 1844. The slaves which had
bden levied on, were seized and sold under afi. fa. in favor of
Dunn, Mcllvain & Brownlee, against Hopkins, McLaughlin, Lea,
Moore, McKinney, and Williams, and the proceeds appropriated
to its payment. On the 8th of June, 1844, the plaintiff sued out
a third execution, which was levied upon the slaves, the proceeds
ofwhicKare in dispute. This^./«. and that in favor of Dunn,
Mcllvain & Brownlee, were levied on the 22d October, 1844,
on six slaves which liad not been levied on before by the execu-
lUNE TfiRM, 1845. •5'Ci
Leach V. Williams and another.
lion of either party. These slaves were offered for sale undct
the levies on the 1st Monday of November, and purchased by
Lockhart, for about $1,500, M^ho claimed the right to credit the
amount on the execution of Messrs. D., McI. & B. The plaintiff
insisted that his execution was entitled to priority, and gave no-
tice to the sheriff not to allow the credit to be made.
Lockhart then produced an execution against sundry defend-
ants, including McLaughlin, in favor of Dunn, Mcllvain & Brown-
iee, for 810,746 08. This execution was received by the sheriff
of Perry, on the 14th December, 1842, and levied on two slaves
as the property of McLaughlin, and other slaves as the property
of some of the other defendants, and on the 30th of May, 1843,
was returned by order of the plaintiffs therein, without any sale
of the property levied on. An alias execution was issued, and
received by the same sheriff, on the day the first was returned,
and on the 30th of September thereafter, was levied on sundry
slaves, as the property of McLaughlin and two of the other de-
fendants. On the same day the defendants replevied their res-
pective slaves, by executing delivery bonds, conditioned for their
forthcoming on the first Monday in November, 1843, all which
were forfeited, and so certified on the 10th November. Aplu-
rlesji.fa. against the defendant's estate was issued, and placed
in the hands of the sheriff of Perry, on the 5th of December, 1843;
this execution also embraced the sureties in the delivery bonds.
Under this^. fa. the sheriff sold twelve of the negroes that had
been levic'd on by the second execution in favor of D., McI. &
& B., on the fii-st Monday of May, 1844, the remaining eight had
not been sold, but were still in the possession of the defendants.
The eight slaves referred to, had never been levied on by the
jfluries fi. fa., nor in the actual possession of the sheriff, but by
his permission remained with the defendants, to be delivered to
him when required to be sold, under the execution of D., McI. &
B. Before the day appointed for the sale, the sheriff called up-
on Lockhart to know if he must sell enough property to satisfy
the execution, the latter replied he would do nothing that would
affect his lien, nor must he (the sheriff,) do any thing that would
cause him to lose it ; but if he did not make the money by a sale
of the property, he (Lockhart,) would not rule him for not mak-
ing rt. The sheriff then took the advice of counsel and did not
762 r ALABAMA. >
Leach v. Williams and another.
sell the property to satisfy Lockhart's part of the execution ; but
would have sold andsntisficd it, if he had not been told that he
would not have been ruled, Lockhart refused to give the sheriff*
an order " to release the execution without making the money."
The application of the sheriff' to Lockhart was made a few days
before the 1st Monday in May, 1844, and when he could by a
sale of the remaining eight slaves on that day, have made a suffi-
cient sum of money to satisfy the execution. The negroes which
were sold, brought $3,941, which had been paid to D., McL
«&B. -^ ..sr
Lockhart proved that he had paid to Edwards, Lapslcy &
Hunter, the attorneys of D., McI. & B. $3,500, and in considera-
tion thereof, on the 0th of March, 1843, they (the attornies) made
a written transfer of an interest in the judgment, amounting to
the same sum. One of the attornies, shortly thereafter, gave no-
tice to the sheriff'of Perry, that Lockhart had the above interest
in the judgment, and that he must, as to that amount, be govern-
ed by his instructions, and informed the sheriff", that his orders
were, not to interfere with Lockhart's rights. The same attor-
ney testified, that before the execution supposed to have a pre-
ference of the plaintiff" in the rule, was issued, D., McI. & B. had
obtained satisfaction for their interest in the judgment, except
four hundred dollars, which sum he had received within a few
days, not of the sheriff', or either of the defendants in the execu-
tion, but of a third person.
The defendant then produced a fourth _^. fa. in fsfvor of D,.
McL & B. issued the 10th of May, 1844, and levied on the same
slaves which were seized under the fi. fa. of the plaintiff", on the
22d October, 1844, and purchased by Lockhart on the first Mon-
day of November, as stated above. On these facts it was ad-
judged, that the pl&intiff" should take nothing by his motion, &c.
H. Dayis, for the plaintiff*, insisted — 1. The payment of $3,500
was a satisfaction of the judgment in favor of D., McL & B.pro
tanto. There could be no division of the judgment, so as to give
Lockhart an interest in a part of it; besides the transfer of the
attornies was not within the scope of their powers, and conse-
quently void. If the plaintiflTs in that judgment had never receiv-
ed the money, might they not have proceeded with an execution
regardless of Lockhart's claim, and if they received it, is not the
JUNE TERM, 1845. 768
Leach v. Williams and another.
judgment thus far paid off. 2. The facts show that the judg-
ment of D., McI. & B. was in fact satisfied, (0 Porter's Rep. 432,)
and as against the plaintiff, the law will consider it satisfied, rg
Porter's Rep. 201; 4 Ala. Rep. 427; 4 Mass. Rep. 402; ""2
Pick. Rep. 580 ; 4 Dall. Rep. 358 ; 3 Wash. C. C. Rep. 60.]
3. The levy of the execution of D., McI. & B. on the twenty
slaves, to the extent of their value, amounted to a satisfaction, and
the subsequent seizure of the six, on which the plaintiff's fi. fa.
was levied, cannot operate to the prejudice of the latter. Craw-
ford V. The Bank of Mobile, 5 Ala. Rep. 55, is unlike the present
case. There the controversy was between the parties to the ex-
ecution— here between different execution creditors.
4. The third execution issued in favor of D., McI. & B. lost
its lien, and if not dormant, was fraudulently kept open. [5 Ala.
Rep. 43.] This j^. /a, having become inoperative as against the
plaintiff, the one last issued, must operate per se, without the aid
of any previous execution, and cannot postpone the plaintiff's lien
which dates back to the time when his first execution was placed
in the sheriff's hands.
A. F. Hopkins, for the defendant in error. 1. The transfer of
an interest in an execution to the officer who holds it for collec-
tion, it is admitted is against public policy, and void. [15 John.
Rep. 443.] But no principle of law inhibits such a transfer as
that under which Lockhart claims, and it is not objectionable be-
cause it was made by attornies at law ; it imposes no responsi-
bility upon their clients, is therefore beneficial to them, and their
assent will be presumed ; the more especially as it appears that
more than a year has elapsed, and they have not dissented from
it. [Pa ley on Ag. 143-4 ; 12 John. Rep. 300.] But it appears
from wliat was said by one of the attornies of D., McI. & B., to
the sheriff, that they were informed of the transfer, and really ap-
jM-ovedofit. [1 Johns. Cases, 110; 1 Caine's Rep. 539; 12
Mass. Rep. 60 ; 3 Wash. C. C. Rep. 254 ; 14 Sergt. & R. 27.J
2. Lockhart did not control the execution so as to protect the
property of the defendants therein from the demands of other
creditors ; he did not direct the sheriff not to sell enough to sat-
isfy it in toto, but the sheriff of his own accord gave the indul-
gence. Lockhart did not assent that any thing should be done,
or omitted by the sheriff, which could impair his lien ; to this he
764 ALABAMA.
Leach v. Williams and another.
objected, and only agreed that if he failed to make the money,
he would not rule him for a failure. His lien does not depend
upon his right to such a remedy, but is wholly distinct from it.
It is perfectly certain that the sheriff acted upon his own responsi-
bility, after having taken the advice of his own counsel. What
Lockhart said did not confer a discretionary power upon the
sheriff; for he expressly said his lien was not to be impaired.
3. To make an execution dormant, the plaintiff, or some one
authorized to act for him, must he the actor in directing the
course of the sheriff. [5 Ala. Rep. 43, 53-4; 5 Cow. Rep.
390.]
4. If the execution under which Lockhart claims was entitled
to the money, then he may retain the amount of his purchase,
and have it credited on the execution. [19 Johns. Rep. 84; 1
Wash. C. C. Rep. 241 ; 3 Marsh. Rep. 68; 5 Cow. Rep.,st^
pra.'\
COLLIER, C. J. — The motion against the defendant attri-
butes neglect to the sheriff for failing to make the money on the
plaintiff's execution, issued on the 8th June, 1844, and is intend-
ed to test the question of priority between that and the^en* fa-
cias at the suit of Dunn, McIIvain & Brownlee, which was si-
multaneously levied. It is conceded that the latter caused an ex-
ecution to be placed in the sheriff's hands one year previous to
the time when the first execution upon the plaintiff's judgment,
issued ; but it is insisted, that the judgment in favor of Messrs,
D. McI. & B., has been satisfied by the money advanced by
Lockhart ; that the levy of their alias fi. fa. on the twenty Slavics
was a satisfaction thereof; that iheiv pluries execution became
dormant, and was fraudulently kept open ; and lastly, the lien of
the plaintiff's j^. /a. which was levied simultaneously with it,
should not be postponed by it.
True, an attorney at law may not have the power to assign a
judgment after it is satisfied to one who became liable to its pay-
ment, (6 Ala. Rep. 432,) yet if a person on whom no duty of that
kind rests, thinks proper to advance his money for the accom-
modation of either plaintiff or defendant, it is difficult to con-
ceive of an objection to keeping the judgment open for his re-im-
bursement. Such an advance cannot be regarded as a payment,
but rather as a mere loan of money, with the agreement that the
JUNE TERM, 1845. T«6
Leach v. Williams and anollier.
lender shall have an interest in the judgment equal to the money
lent It is needless to inquire whether the powers of an attor-
ney for the collection of a debt authorize him to enter into such
an arrangement. If such an inquiry were necessary, we should
perhaps be inclined to sustain the authority, where the client can-
not be burthencd with costs, or otherwise prejudiced. But in
the present case, it appears that the attornies have paid over the
money to the plaintiffs in the judgment, and we think it clear,
that Lockhart is entitled to an execution in the plaintiff's name,
until he is reimbused ; unless the judgment shall be sooner sat-*
isfied.
The first execution issued upon the judgment under which
Lockhart's claims was levied and returned without a sale by the
order of the plaintiff therein ; the second was levied on the twen-
ty slaves, delivery bonds given and forfeited ; under the third,
which was issued on the 5th of December, 1843, twelve of the
slaves seized under the second were levied on and sold ; the re-
maining eight had not been taken possession of by the sheriff,
but still remained in the hands of the defendants in execution.
No question can arise in this case, whether the first execution
of Messrs. D., McI. & B. was dormant ; for the first Ji. fa. at the
suit of the plaintiffs, did not go into the sheriffs hands until nine
days after their pluries ji. fa. had been delivered. Now- al-
though it is not explicitly stated, yet the fair inference from the
entire case, is, that the property levied on by the first execution
was either returned or taken possession of by the defendants, to
whom it belonged. As to the second, it is shown that they were
returned upon the delivery bonds being given.
It is laid down, that if the sheriff take goods in execution, un-
der aji. fa. whether he shall sell them or not, the defendant shall
not be liable to a second execution. But where the goods levi-
ed on are removed by the defendant, or by his permission, or
connivance, or they are delivered to him upon giving a forthcom-
ing bond, which he forfeits, so that they cannot be sold, the plain-
tiff may have a new execution. [9 Porter's Rep. 201 ; 4 Ala.
Rep. 427.J These citations are conclusive to show, that the levy
of the second Ji. fa. and proceedings consequent thereon, do not
amount to a satisfaction in law.
In respect to the third execution of Messrs. D., McI. & B., it
should have been levied upon a sufficiency of property to satisfy
76G ALABAMA.
Leach v. Williams and another.
it, if to be found, unless the sheriff was otherwise instructed by
those authorized to control it. The fact that it exerted a para-
mount lien over the Ji. fa. of the plaintiff, did not justify the she-
riff in failing to levy the latter, if the defendant therein had pro-
perty which had not been seized under the former. [8 Porter's
Rep. 147.] But the omission of the sheriff to do his duty in
this respect, cannot postpone an elder to a junior execution, espe-
cially if the plaintiff in the former is merely passive, without
attempting to control the action of the sheriff. [4 Ala. Rep.
93, 98.]
It is insisted that Lockhart's answer to the sheriff, when asked
if he must sell enough property to satisfy the execution in which
he was interested, that he would do nothing that could affect his
lien, nor must, (the sheriff,) do any thing that would cause him to
lose it ; but if he failed to make the money by a sale of property,
he would not rule him for the failure, made the third ^. fa. of D.
McI. & B. dormant, and inoperative. The authorities very
generally concur, that in order to make an execution dor-
mant, and constructively fraudulent, against one of a junior
date, there must be an active interference on the part of the
plaintiff, or some person authorised to represent him. A
mere acquiesence in the neglect of the sheriff cannot have that ef-
fect. [See Wood v. Gary, et al. 5 Ala. Rep. 43, 55, and authori-
ties there cited.]
Lockhart did not authorize the sheriff not to proceed upon the
execution under which he claims ; so far from giving such in-
structions, he peremptorily refused to do any thing that could af-
fect his lien, and prohibited the sheriff from so acting as to preju-
dice it. The remark that he should not rule him if the money
was not made by the levy on, and sale of property, amounted to
nothing more than this, that he would pretermit a remedy against
the sheriff, which he was not bound to pursue, in order to the con-
tinuance of his lien against a junior execution creditor. This af-
forded no warrant to the sheriff for the failure to enforce a col-
lection of the third ^. /a. of Messrs. D., McI. «fe B. His omis-
sion may perhaps have been influenced by what was said by
Lockhart in the conversation referred to. Yet if the latter did
not intend to assent to and approve the delay, with the view of
aiding the defendants in execution, or some of them, and thus by
the effect of his paramount lien secure their property from junior
JUNE TERM, 1845. !WV
Crafts V. Dexter.
executions, the remark that he would not rule the sheriff, cannot
have the effect to render the execution in respect to which it was
made, dormant, and fraudulent by construction, as against the
plaintiff. There is nothing in the record to warrant the impu-
tation of such an intention, and we cannot consequently infer its
existence. This conclusion being attained, it is not (as we un-
derstood it,) pretended that the fourth^. /a. of Messrs. D., McI.
& B., the lien of which, by relation, dates back to a period before
the plaintiff's first execution issued, is to be postponed to it. The
lien of its predecessor being unimpaired by the causes consider-
ed, the plaintiff is not entitled to any part of the money for which
the six slaves were sold to Lockhart.
This view disposes of the entire case, and the consequence is,
that the judgment is affirmed.
CRAFTS V. DEXTER.
1. A defendant against whom a judgment has been rendered, may have relief
in chancery, upon the allegation that tlie writ, tliough returned executed,
by the sheriff, had never been served upon him.
2. It is not sufficient to alledge that he had no notice of the suit ; he must
also show that tlie judgment is unjust, and tliathe had a defence to the ac-
tion.
3. Where an endorser of a bill of exchange seeks to enjoin a judgment, on
the ground that he had not been served witli process, it is not a sufficient
allegation, that he had never received notice of the dishonor of the bill, he
mu9t alledge that notice was not given. This averment must be made,
though the burden of proof would lay on the otiier side.
Error to the Chancery Court at Montgomery.
The bill was filed by the defendant in error, and alledges, that
on the 24th April, 1838, the Selma and Tennessee Rail Road
Company being indebted to him, he drew a bill of exchange ui>-
7G8 ALABAMA.
Crafts V. Dexten
on Gilbert Shearer, its president, in favor of one Henry Lazarus,
for the payment of $1276 80, on the first of January, 1839, ne*
gntiable and payable at the Bank of Mobile, which was duly ac-
cepted by Shearer. That some time after the 26th April, 1841,
he ascertained that a judgment had been rendered against him
in the Circuit Court of Dallas, as the drawer of said bill of ex-
change, by default, in favor of said Lazarus, for the useof R. A.
Crafts. That the writ issued in the cause purports to have been
served onCrafts, by the deputy sheriff of Dallas countyj on the 8th
June, 1840, and that execution has been issued thereon, and levied
on his property. He denies that the writ was ever served on
him, or that he knew any thing of the pendency of the suit, until
after the judgment was obtained. That he never received no-
tice of the protest of the bill, and did not know that there was
any intention to hold him responsible, and supposed that the Rail
Road Company had paid the bill, and could have successfully de-
fended the suit if he had known that it was pending. The bill
further alledges, that Crafts is a non-resident of the State, but
where he resides is unknown to complainant. The prayer of the
bill is for an injunction, and for general relief.
The register made an order directing publication to be made,
requiring Crafts to appear and answer, or the bill would be taken
as confessed. Subsequently, in vacation, the register made an
order, reciting, that publication had been made, and that the bill
be taken as confessed as to Crafts.
By leave of the Court, a supplemental bill was filed, alledging
that since the filing of the original bill, the amount due on the bill
of exchange had been paid to Crafts, upon an execution which
issued on a judgment obtained against Shearer, as acceptor of the
bill, and prayed that Crafts be compelled to answer.
Publication was again made, and an order by the register, that
the supplemental bill be taken as confessed as to Crafts.
Testimony was taken by the complainant, but the Court re-
jected it, because due notice had not been given, and rendered a
decree in favor of the complainant, perpetuating the injunction ;
to reverse which this writ is prosecuted.
Campbell, for plaintiff in error. — There was no affidavit to the
supplemental bill of the non-residence of Crafts, and there is no
evidence that publication was made.
JUNE TERM, 1845.
Cxafls V. Dexter.
The Court erred in rendering a decree, in the absence of La«
zarus, who had the legal title to the judgment. [Story's Eq. PI*
187.]
There is no equity in the bill, as the sheriff's return cannot be
impeached collaterally. [5 Litt. 199 ; 4 Ala. 279 ; 10 Gill & J.
358.]
The allegation that notice was not received, is a mere evasioo*
The allegation should have been, that the holder did not give no-
tice, and that he had a fixed residence, [10 Peters, 573; 2
Stew. 280.]
The supplemental bill should have been verified, and process
issued as in other cases. [2 Paige, 333 ; 1 Mete. 70 ; 1 Ala.
379 ; 11, 4Q and 46 rules Chancery Practice, 1 Smith's Ch. P^:.
527.]
J- P. Saffolj), contra. — No objection was made below to the
decrees pro confesso. They were taken before the register, and
therefore the proof of publication need not appear in the record.
The bill was sworn to, and the 40th rule complied with. The
objection cannot be made for the first time on error, and by a
party in contempt. [1 Ala. 380 ; 2 Id. 415; 9 Porter, 272 ; ^
Ala. 163, 173 ; 1 Hoffman's Ch. Pr. 405 , Story's Eq. P. 278.]
Lazarus was a mere formal party, and no objection can be ta-
ken for that omission in this Court, as it was waived in the Court
below. [Story's Eq. PI. 78, 148, 198, 416 ; 2 Stew. 291 ; 2
Stew. & P. 361.]
As to the equity ofthe bill, the Kentucky cases are answered
by the decision of this Court, (2 Ala. 209,) which is, in principle,
the same as this case.
ORMOND, J. — The bill seeks to open a judgment obtained at
law, upon the ground, that the writ was not served upon the de-
faidant at law, by the sheriff, and that he had no notice that the
suit was pending against hini, until the judgment was obtained.
That if he had been notified ofthe existence ofthe suit, he could
have successfully defended against it. The writ having been re-
turned executed by the sheriff, it has been argued, that upon prin-
ciples of public policy, the complainant must be remitted to bis
action against him.
It is certainly the general rule, that the Court gives credeoce
97
770 5 ALABAMA*
Crafts V. Dexter.
to the acts of its own officers, and will not permit their truth to
be disputed, otherwise the Court would be impeded at every step
in its progress, by the trial of collateral issues of fact. When,
however, the suit has ripened into a judgment, new considera-
tions present themselves, and it becomes then a question of great
difficulty, whether one, against whom an unjust judgment has
been obtained, and who has been deprived of all means of de-
fence in the proper tribunal, by the mistake or fraud of the sheriff
shall be compelled, from considerations of public policy, to pay
the judgment, and seek redress from the officer, or whether the
preventive justice of a court of chancery will not interpose, and
afford an opportunity of proving the invalidity of the demand,
without requiring bim first to pay the judgment ? The solutioit
of this question, appears to depend upon the relative merits of the
public interest, and the private injury involved, and we are aware,
that it has been decided that in such a case, the private a»ast
yield to the public interest.
We abstain, however, from entering, at this time, into the me-
rits of this controversy, because we think the principle has been
settled in the case of Brooks v. Harrison, 2 Ala. 209, in favor of
the relief. In that case, it was held, that one whose name had
been forged to a forthcoming bond which had been returned for-
feited, could be relieved in chancery against the statute judgment
entered upon the forfeiture. This case involves the precise prin-
ciple which must govern the case at bar, and which may be thua
stated : when by an unauthorized act of an officer of court, a
judgment is improperly rendered against one, without his know-
ledge or consent, he may be relieved in chancery, though the plain*
tiffin the judgment was not privy to the act of the officer. That
is this case, and therefore without further comment, we proceed to
consider, whether the bill is in other respects correct, for it is not
sufficient to alledge the improper conduct of the officer, but it
must also be shown that injury has resulted from this misconduct.
The suit at law in this case, was against the complainant, as
the drawer of a bill of exchange, by the holder, the acceptor hav-
ing refused payment. The defence which the complainant relies
on, is, that he was not notified of the dishonor of the bill, and sup-'
posed that it was paid, until he learned of the existence of the'
judgment against him. The allegations of the bill, on this point,
are, « that he did not consider himself liable, as he had never re-
JUNE TERM, 1845.
Crafts V. Dexter.
ceived notice of the protest of said bilf, and did not know there
was any intention to render him liable, until after said judginent
had been rendered against him.'' Again, he states, " that he had
a good defence to said bill of exchange ; that he never did receive
any notice that said bill of exchange had been protested for non-
payment, but on the contrary thereof he believed, after the said
bill had fallen due, that the Selma and Tennessee Rail Road Com-
pany had paid said bill of exchange, which it was in duty bound
to do," &c.
It is very clear, that the ability of the complainant to defend
himself at law, did not depend upon the fact whether he had, or
had not received the notice. The bill was payable at the Bank
of Mobile ; the complainant, it appears from the judgment, resid-
ed in Dallas county, and if notice of the dishonor of the bill,
was, in point of fact, and in due time, according to law, transmit*
ted to him by mail, his liability on the bill would have been fixed,
though it had been in his power to have proved that he never re-
ceived it. It is therefore not shown upon the bill, that the judg-
ment is unjust, and if he was liable upon the bill of exchange, it is
wholly unimportant in this proceeding, whether he had notice
that the suit was pending against him, or not.
It docs not vary the case, that if the allegation had been made
that due notice of the dislionor of the bill was not given, the proof
would have been with the defendant. It was a necessary alle-
gation, because without it, there is no equity in the bill ; as it
must appear by an affirmative allegation, that the demand upon
which the judgment is ff>unded has no legal validity. If from tl>c
nature of the case he could not positively alledge it, as of his own
knowledge, he should have stated the fact to be so according to
his information and belief. It is perfectly consistent with every
allegation in the bill, that the complainant knew that his liability
had been fixed by due notice.
This question was considered in tlic case of Carpenter v. De-
von, [6 Ala. 718,] where it was held, that negative allegations
when necessary to establish a right, must be made in equity, as
well as in pleading at law, and that a party averring the non-ex-
istence of a fact, will not always be bound to support the allega-
tion by testimony.
This conclusion renders it unnecessary to examine the other
IftH '' ALABAMA.
Bank of Mobile v. P. & M. Bank of Mobile.
questions made in the cause, as they wili not probably {irise-
again. % ^^ ttct, itf^
Let the decree of the chancellor be reversed, and as this qxi&si^
tion was not made in the Court below, the defendant having fail-
ed to appear, the cause wiil bo remanded, that the complainant
may, if he thinks proper, obtain leave to amend hbs bill.
ifton^i* *»;»?) iM aft*? »i i?
4
THE BANK OF MOBILE v. THE PLANTERS' AND
MERCHANTS' BANK OF MOBILE, ET AL.
1. IL executed a mortgage to the R of M. in which, after describing-certain
lands with particularity, proceeded thus : " together with three hundred
and fifty acres of land belonging to the said R., contiguous to the lands
fcbove described, or situated near the same :" Held, that upon a bill to fore-
close, it was allowable for the mortgagee to prove Avhat lands were em-
braced by the term " contiguous" to those specifically described ; at least
^ to adduce proof that R. was the proprietor of three hundred and fifty acres,
and no more, adjoining, or near to the lands designated.
2. Where a mortgage describes lands generally as " contiguous" to others it
specially designates, and a bill brought for its foreclosure particularizes
. 'them, and alledges that a third person (made a defendant) purchased theia-
* %ith a knowledge of the mortgagee's lien ; it is sufficient to throw the orms
. vpf sustaining the allegation upon the complainant, for such defendant to
,]tnswer, that he did not know that the lands in question were embraced by
the complainant's mortgage, and insists upon proof of the fact j/wUver, that
he was a purchaser for a valuable consideration, without notice of the qom-
plainant's claim, ...
.3. The failure of the defendsyit to answer an allegation, not charged to be
within his knowledge, and which cannot be so intended, will not be con-
strued into an admissionof its trath; if, in such case, the answer is defec-
tive, the complainant should except, and pray the Court to require one rnore
complete. ■.'•'' ^*-'
Writ of Error to the Court of Chancery sitting in Lowndes.
JUiSiR TERMs 1815. fur
Bank of Mobile v.'P. & M. Bank of Mobile,
The plaintiff in error filed a bill to foreclose tlie equity of rd«
demption to certain lands, described as follows, via : The west
half of the north-west quarter of section three, of township fifteen,
ia range twelve, containing eighty-five 83^-100 acres ; the west
half of the south-west quarter of section thirty-five, township six-
teen, and range twelve, containing eighty 20-100 acres; tlio
north-east quarter of section two, in township fifteen, ratige
twelve, containing one hundred and fifty-eight 30-100 acres ; the
south-east quarter of section thirty-three, in township jsixtcen,
range twclre, containing one hundred and sixty acres ; the west
half of the south-west quarter of section thirty-three, of township
sixteen, range twelve, containing eighty acres ; the east half of
the sonth-west quarter of section thirty-tliree, of township sixteen,
in range twelve, containing eighty acres, "together with three
hundred and fifty acres of land belonging to the said Robertson,
contiguous to the lands above described, or situate near the same,"
— all of which lands it is alledged lie in the county of Dallas.
These lands were conveyed by way of mortgage on the 21st day
of February, 1838, by the defendant, Robertson, to secure the
repayment of ill j680 00, which had been lent to him by the
complainant.
The complainant's bill was afterwards amended, and in the
amended bill it is alledged that the lands which are described ia
the mortgage as lying contiguous, &c. to those particularly des-
ignated, are the following, viz : the west half oC the north-west
quarter, and the west half of the south-west quarter of scctioa
four, in township fifteen, and range twelve ; and the nortli-caat
quarter of section five, in township fifteen, said range twelve,
situate in the county of Dallas, and within the Cahawba land
district. It is then stated, that the Planters' and JVIerchauts'
Bank of Mobile, and one Abigail McKcnzie, with a knowledge of
the fact that these lands were embraced by the complaiaant's
mortgage, respectively purchased certain portions of the same ;
but what part each one of these claims is unknown, and tlic com-
plainant therefore prays, that they may disclose and set forth Uieir
deeds thereto. To this is superadded a charge, that the Planter**
and Merchants* Bank claim the whole of these lands, at a sal©
made under an execution against the estate of the defendant, Ro«-
bertson ; that they are all the lands that tlic mortgagor owned
«» contiguous" to those particularly described in the mortgage, and
11(4 • ALABAMA.
Bank of Mobile v. P. & M. Bank of Mobile.
this fact was well known to the Pjantei-s' and Merchants' Bank
at the time of its purchase. The original and anxiidcd bills
each pray an account of what is due to the complainant, for prin-
cipal and interest, and a decree of foreclosure and sale, not only
of the lands specifically described in the mortgage, but those re-
ferred to as contiguous, &c.
The Planters' and Merchants' Bank answers, that it knows no^
thing of the contracts ot" dealings of the defendant, Robertson,
with the complainant, but avers that he was indebted to this res-
pondent, in the sum of $2,780, due 15th February, 1839, which
having failed to pay, a judgment was recovered therefor, aad
under an execution issued on that judgment, the lands described
in the complainant's bill as embraced by the general designation
in the mortgage, were levied on and sold by the sheriff of Dah*
las. At that sale, this respondent became the purchaser, and re-
ceived the proper conveyance. Whether the lands were intend-
ed to be embraced by the mortgage the respondent does not
know, but insists that the complainant shall be held to strict
proof.
The defendant, Robertson, and McKcnzie having failed to an-
swer the bill, the same was taken for confessed as to them.
The cause was heard, by consent, upon bill and answer, and
the Chancellor adjudged, that as the answer of the Planters' and
Merchants' Bank denied all knowledge as to the fact, whether
the lands which it claims under the purchase at the sheriff's sale,
were embraced by the mortgage, the onus of proving the affir-
mative, rested upon the complainant. There being an entire
want of proof OH this point, thus far, the bill was disncjissed with-'
out prejudice, as to the Planters' and Merchants' Bank. An ac-
count was then ordered to be taken, and a decree of foreclosure
and sale rendered as to the lands about which there was noi
controversy.
C. G. Eewards, for the plaintiff in error. The registration of
the mortgage operated a constructive notice to creditors and pur-
chasers of the mortgagor, of the lien which it created upon the
contiguous three hundred andjifty acres. The point upon which;
the Chancellor rested his opinion does not arise. It is not denied
by the answei*, " that the mortgage refers to the lands in dispute,"
"that it included all the lands which Robertson owned," "that
JUNE TERM, 1845. n%
a
Bank of Mobile v. P. & M. Bank -of MobUe.
Robertson owned no other lands contiguous." These allegaticwis
must be taken as admitted — the complainant could not be held to
prove that Robertson bad no other lands.
R. Saffold, contra, made the following points: 1. If the de-
scription of lands be so uncertain that the locality of those intend-
ed to be conveyed cannot be known, then the conveyance is void
for uncertainty, [t Mass* Rep. 196, 205; Greenl. Ev. 349-50,
and note; 6 Peters' Rep. 328,345.] 2. After slwwing the state
of things at the time the mortgage was executed, it must operate
without the aid of parol testimony — the ambiguity is patent, and
cannot be explained by parol testimony, but by an instrument un-
der seal only. [6 Peters' Rep. supra; I Hill's Rep. (N. Y.) 17 ;
4 Id. 584 ; 19 Wend. Rep. 320.]
3. The cause being heard upon biU and answer, the evidences
of debt intended to be secured, should have been produced, and
the consideration of the mortgage proved. [2 McC. Ch. Rep.
14; 5 Ala. Rep. 9; 3 Hawk,'s Rep. 203; 2 Paige's Rep.
301.]
4. The registry of a mortgage should give full information, it
is not enough that it should merely put a party upon imjuiry to
ascertain what property was intended to be conveyed. [1 Johns.
Ch. Rep. 299; 18 Johns. Rep. 544; 2 Johns. Ch. Rep. 182 ; 15
Johns. Rep. 555; 2 Johns. Rep. 611-12.
5. Matter in avoidance stated in an answer, need not be prov-
ed by the defendant, when the cause is brouglit to a hearing by
consent, on bill and answer. [2 Stew. <S& P. Rep. 189 ; 5 Id- 131,
141 ; 2 Ala. Rep. 215-7.]
COLLIER, C. J. — The authorities are uniform in declaring,
that an ambiguity which docs not appear on the face of the in-
strument, but is generated by some extrinsic collateral matter, is
susceptible of explanation by a development of extrinsic facts ;
and there are adjudications which maintain that the rule that parol
evidence is inadmissible to explain a patent ambiguity in a deed
is by no means universal. In Colpoys v. Colpoys, Jacobs' Rep,
451, the Master of the Rolls said, " Where the person, or the thing;
is designated on the face of the instrument, by terms im|)erfecl
and equivocal, admitting cither of no meaning at all by them-
selves, or of a variety of different meanings, referring tacitly or
ff« ALABAMA.
Bank of Mobile v. P. & M. Bank of Mobile.
ex)iressly for the ascertain m(ait and completion ot the meaning,
to extrinsic circumstaaces, it has never been considered an ob-
jection to t^ reception of the evidence of these circumstances,
that the ambiguity was patent, manii'ested on the face of the in-
strument. -WlKjn a legacy is given to one by his surname, and
the christian name is not mentioned, is not that a patent ambigu-
ity ? Yet it is decided tliat extrinsic evidence is admissible. So
where a gift is of the testator's stock, tiiat is ambiguous ; it has
diflerent meanings when used by a farmer and merchant." He
cited the case of Doe ex dem Jersey v. Smith, 2 Brod. &c Bing.
Rep. 553, in which Mr. Justice Bay ley thus states the principle
on which extrinsic evidence is admitted in cases of a patent am-
biguity: " The evidence here is not to produce a construction
against the direct and natural meaning of the words ; not to con-
trol a provision which was distinct, and accurately described ;
but because tfiere is an ambiguity on the face of the instrument;
because an indefinite expression is used, capable of being satisfi-
ed in more ways than one ; and 1 look to the state of the pro-
perty at the time, to the estate and interest the settler had, the
situation in which she stood in regard to the property she was
settling, to see whether that estate or interest, or situation, would
assist us in judging what was her meaning by that indefinite ex-
pression." It was added by the Master of the Rolls, that if ne-
cessary, he could " refer to many other instances of resorting to
extrinsic matter in cases of patent ambiguity-" See also, Ely v.
Adams, 19 Johns. Rep. 313-7.
A patent ambiguity within tlie rule laid down by Lord Bacon,
which is not subject to explanation by extrinsic evidence exists,
when it appears plainly from the face of the instrument, that some-
thing else must be added in order to enable one to determinine
what was intended by the grantor. The admission of parol evi-
dence in many cases would be, as his Lordship said, "to make
that pass without deed, which the law appointeth shall not pass
but by deed." Upon this principle it has been held, that where
one person gave a bond to another for the conveyance of a cer-
tain number of acres of land, being parcel of a much larger tract,
it was not permissible to show by extrinsic proof, what part of
the ti'act it was intended to sell, and that the bond was void ; un-
less an election might be coerced and a coiiveyaftce consummated
of the number of acres designated, in some part of iite entire tract.
JUNE TERM, 1845. mfi
Bank of Mobile v. P. & M. Bank of Mobile.
[Hunt V. Gist, 2 H. & Johns. Rep. 498. J It is said, if the descrip-
tion in a conveyance be so uncertain that it cannot be knowo
what estate was intended, the deed is void ; where there is a doubt,
the construction mustbeagainstthegrantor; andevery deed ought
to be so construed, if it can, that the intent of the parties may par©-
vail. When the description of the estate intended to be convey-
ed includes several particulars, all of which are necessary to as^
certain it, no estate will pass, except such as will agree to every
particular of the description. Butif the description be sufficient
to ascertain the estate intended to be conveyed, although the es-
tate will not agree to some of the particulars in the descriptioo,
yet it shall pass by the conveyance, ut res magis valeat quam
pereat. [ Worthington, et al v. Hylyer, et al. 4 Mass. Rep. 196 ;
Jackson v. Marsh. 6 Cow. Rep. 281 ; Jackson v. Clark, 7 John.
Rep. 217.]
In Starling, et al. v. Blair, 4 Bibb's Rep. 288, a debtor, fotjthc
purpose of securing the payment of a considerable sum of money,
gave a mortgage to his creditor upon " all the lots that he then
owned in the town of Frankfort, whether he had a legal or equb-
table title thereto ;" it was objected that the description of the
lots intended to be conveyed was too general. The Court con*
sidercd the objection novel in its nature, and were aware of no
authority to support, or reason to justify it. " The expression,"
it was said, " though general, is not uncertain. It clearly and
explicitly manifests the intention of the parties, and thei*e is no^
thing unlawful in that intention. There may indeed be more dif-
ficulty in ascertaining the lots intended to be conveyed, where
the language used in describing them is thus general, than if the
lots had been designated by their numbers. But it is in the de-
gree, and not in the nature of the difficulty that the two cases
differ. It results in neither case from no abiguity on the faco of
the deed, but from extrinsic circumstances, and in both cases re-?
sort must be had to evidence aliunde, for the purpose of identi-
fying the lots which arc the subject of the conveyance." In Ha-
vens, et al. V. Richardson, 5 N. Hamp.Rep. 113, the deed con-
tained these general terms : "All and singular other real estate
of what nature soever, wheresoever situate, belonging to the said
Reuben at the time of his decease." It was insisted that the de-
scription was too loose and insufficient to pass the title to aay
particular estate ; but the Court said, " a general description is
98
>m ALABAMA.
Bank of Mobile v. P. & M. Bank of Mobile.
sufficient, if the thing granted can be ascertained. Here it can
he ascertained of what land Reuben Shopley died seized." So a
conveyance of lands in the patent of B. and of all other lands in
the province of New York belonging to the grantor, will pass
the residue of his lands in New York. [Jackson v. Delancey, 1 1
Johns. Rep. 365, S. C ; 13 Johns. Rep 537.] But in Jackson
ex dem Carman, et al. v. Roosevelt, 13 Johns. Rep. 97, the deed
relied on was a conveyance to a purchaser, at a sale made by a
sheriff under legal process, and described the. estate thus: "All
the lands of Elizabeth Ellis, (and others,) situate, lying, and being
in the patent commonly called and known by the name of the
Hardenburgh patent." The Court ruled that the description
was too general to authorize the recovery in ejectment of any
specific tract of land — that it did not define the lots, or parts of
lots of land owned by the defendant named in the judgment.
The case of Ellis v. Burden, 1 Ala. Rep. 458, is strikingly ap-
plicable to the point we are considering. That was a bill for the
specific performance of a contract, by which the defendant had
stipulated to convey to the -complainant three of sixteen tene-
ments, the brick work and plastering of which was to be done by
the latter. It was objected that the contract did not specify which
of the tenements were conveyed to the complainant. This Court
said, " If the houses in this case had been built, when the agree-
ment to convey three of them, was entered into between the par-
ties, parol evidence would have been admissible to show to which
of them the contract related, or, in the language of the case just
cited, to explain the subject of the contract. But this is a much
stronger case." The case referred to was Ogilvie v. Foljambe,
8 Mer. Rep. 52, in which the Master of Rolls said, « the subject
Inatter of the agreement is left, indeed, to be ascertained by ex-
trinsic evidence, and for that purpose such evidence may be re-
ceived. The defendant speaks of " Mr. Ogilvie's house," and
agrees to give £1400 for the « premises," and parol evidence has
always been admitted in such a case, to show to what house.and to
what premises the treaty related. [See also, Den ex dem. Rid-
dick V. Leggott, 3 Murph. Rep. 539 ; Den ex dem. Belk v. Love,
1 Dev. & Bott. Rep. 65.]
•This notice of the authorities is quite sufficient to show, that
every deed in which the lands proposed to be conveyed by it, is
so generally described that they cannot be ascertained without
JUNE TERM. 1845. 179
Bank of Mobile v. P. & M. Bank of Mobile.
the aid of extrinsic proof, is not void, or inoperative. In the pre-
sent case, the description is imperfect and equivocal, admitting in
itself of no meaning, or of diflerept applications, referring for the
location of the lands in question to others which were particularly
described in the same deed. These facts bring the case fully with-
in the principle so clearly expressed in the citations from Jacobs
and Broderip & Bingham.
In giving effect to a conveyance, it often becomes necessary
to determine the locality of lands, and in such cases it is allowa-
ble to show by extrinsic proof, where was the line of contermi-
nous tracts at some period in the past, and at what point descrip-
tive monuments were then located, &c. It is not necessary that
the description in a deed should be so exact as to show with un-
erring precision what property was conveyed; in the language
of Sir VVm. Grant in the case cited from 3 Merivale, supra, " the
subject matter of the agreement,'' may be shown " by extrinsic
evidence, and for that purpose such evidence may be received."
This principle is explicitly recognized in Ellis v. Burden, supra.
We have seen that a general description is sufficient, if the
thing granted can be ascertained, and in one of the cases cited,
where the conveyance was of all other real estate of which a de-
ceased person died siezed, it was held competent to show by pet-
rol evidence what lands were embraced by the description.
Upon the principles deduced from the citations we have made,
it is perfectly clear that evidence was admissible to prove what
lands were embraced by those contiguous or near to those spe-
cifically described. At least to adduce proof that Robertson was
the proprietor of three hundred and fifty acres, and no more, ad-
joining or near to the lands referred to. This would be, but to
identify the subject matter of the conveyance, and to make per-
fect and certain that which it had left imperfect and equivocal in
contemplation of extrinsic evidence.
Let us however inquire whether it is inferrible from the bill
and answer, that the lands now in controversy are embraced by
the complainant's mortgage ; for if such an inference cannot be
indulged, the decree of the Chancellor must be affirmed. The
allegations of the bill upon this point are substantially as follows :
1. That tlie lands described as being three hundred and fifty acres,
&C., did by the contract and understanding of the parties refer to
and include ail the lands that the mortgagor owned, which were
fSff ' ALABAMA.
Bank of Mobile v. P. & M. Bank of Mobile.
situated near those specifically described in the mortgage,and that
he was the proprietor of no other land than that against which the
complainant seeks a decree of foreclosure and sale, situated con-
tiguous or near thereto. 2. That the Planters' and Merchants'
Bank, well knowing the premises, purchased certain portions of
the three hundred and fifty acres of land, &c.
To these allegations the Planters' and Merchants' Pank an-
^vered, that it did not know that the land alledged to have been
purchased by it, was pari of the lands embraced by the mortgage
of Robertson to the complainant. This defendant avowing its
ignorance of this fact denied the same, and prayed that the com-
plainant may be held to strict proof thereof^ — and further, averred.
that its purchase was made for a valuable consideration, without
notice that the land in controversy had been previously convey-
ed by the mortgagor to the complainant.
It is objected by the complainant, that the Planters' and Mer-
chants' Bank should have answered specially, whether the land
purchased by it was near those particularly described in the
mortgage, and whether the mortgagor owned any other lands
contiguous or near to them ; that the silence of the answer was
equivalent to an admission of the averment of the bill on this point.
The general rule, that whatever is specifically alledged in the bill,
and not denied in the answer, must be taken as true, it is said, is
subject to many exceptions and restrictions. In Thorington v.
Carson, et al. 1 Porter'sHep. 257, our predecessors held, that the
rule "must be confined to averments of matters within the know-
ledge of the defendant, a party or privy to the particular trans-
action ; in such a case it would seem that the positive averment
by one party, of the truth of the fact ought to be received as
true, if not denied by the other."
The allegations that are unanswered cannot be intended to be
within the defendant's knowledge. In respect to the first, any
one acqainted with the manner in which lands are surveyed and
numbered by the United States, might ascertain, without the as-
sistunce of proof, or personal observation, the relative position of
all the lands described in the bill; but as it regards the second
allegation, the fact it affirms, is one of which the mortgagor alone
•may" be said to have certain knowledge. The Planters' and
Merchants' Bank was neither party nor privy to the mortgage
executed by Robertson to the complainant, or to any transaction
JUNE TERM, 1845. 781
Eiland, Judge, &c. v. Chandler.
which would enable it positively to admit or deny the averments
which it is insisted arc unanswered. The failure then to answer
specifically to these allegations, cannot be received as an implied
admission of their truth.
We need not. consider whether the answer is sufficiently res-
ponsive to the bill, in stating that the respondent does not know
that the lands in controversy were intended to bQ embraced by
the mortgage from Robertson to the complainant, and requiring
that the same should be proved ; or rather, whether the sum of
all the allegations we are now considering amount to more than
this, viz : that the lands claimed by the Planters' and Merchants'
Bank are part of the three hundred and fifty acres dcscr-ibed gen-
erally by^their locality in respect to others, and were so known
to it when it became the purchaser. Be this as it may, if the an-
swer is defective, the complainant should have excepted to it, and
cannot insist with success, that the bill should be taken for con-
fessed, so far as it is unanswered.
It results from this view, that as there is no evidence to sus-
tain the bill, the Chancellor could not have rendered a decree in
favor of the complainant as to the lands to which the Planters'
and Merchants' Bank set up a title. We need not consider the
other questions raised at the argument, and will merely add that
the decree is aflirmed with costs.
EILAND, Judge, &c. v. CHANDLER.
1. No action can be maintained against a guardian, or his sureties, on his of-
ficial bond, whilst the relation of guardian and ward subsists.
2. The removal of a guardian beyond the limits of the State, is a suffkicnt rea-
son fw severing the relation, and revoking tlic appointment
Error to the Circuit Court of Perry. - :' -^
882 ALABAMA.
Eiland, Judge, &c. v. Chandler.
Debt by the plaintiff in error, for the use of William C. Har-
lor, against the defendant in error, as surety of Elijah Harlor,
guardian of William C. Harlor, on his bond in the penalty of one
thousand four hundred dollars.
The declaration, after setting out the bond and condition, pro-
ceeds to allege "that Elijah Harlor, as guardian aforesaid, did not
well and truly perform the duties required of him by law, &c., in
this, that the said Elijah Harlor didnot^eliver an inventory on oath
of all the estate, real and personal, which he had received as
such guardian, into the office of the County Court, within three
months, &c., and so the said plaintiff says, the said Elijah wasted
the estate of the said William.
« And the said plaintiff in fact saith, that the said Elijah, whilst
acting as such guardian, to- wit, on the 30th of March, 1837, be-
came, and was, possessed of the sum of $727 25, as principal,
and the sum. of $58 18 as interest on the same, the property of
said minor ; and the plaintiff avers, that said Elijah, guardian as
aforesaid, afterwards, to-wit, on the day of , removed
beyond the limits of the State of Alabama, without settling his ac-
counts as such guardian, with the Orphans' Court of Perry coun-
ty. By reason whereof, an action hath accrued to the plaintifi)
to demand, and have of, and from the said defendant, the said sum
of $1,400 above demanded, yet, &c."
To this declaration the defendant demurred, and the Court
sustained the demurrer, and the plaintiff declining to plead over,
judgment final was rendered for the defendant.
The judgment on the demurrer is now assigned for error*
Davis, for plaintiff in error. — The single question is, whether
this action can be maintained against the sui-ety, on the bond, no
judgment having been had against the principal, he having left the
State. To show that the action can be maintained, I refer to 1
Call, 333 ; 6 Porter, 394.
Thomas Chilton, contra, insisted, that the declaration vras
too vague and uncertain .to bp sustained. That it did not ap-
pear whether the ward had attained his majority, or was still an
infant, and if the latter, who was his guardian, as all infants must
^c by guardian, or procAein emie. ,, , ^,. „ .. .; . j-.f
JUNE TERM, 1845. 783
Eiland, Judge, &c. v. Chandler.
ORMOND, J. — This is a suit against the sureties of a guar-
dian, upon his official bond, by the Judge of the County Court
for the use of the ward. No judgment has been obtained against
the principal in the bond, but as an excuse for not ascertaining
the amount in his hands, it is alledged that the guardian has wast-
ed the assets, and absconded from the State.
At the time this suit was brought, our statutes did not provide
any means for the settlement of a guardian's account, when he
had left the State. This has been remedied by the act of 1843,
[Clay's Dig. 230, § 47,] which authorizes the Judge of the Or-
phans' Court, when the executor, administrator, or gum'dian re-
moves beyond the State, and fails to appear and settle his ac-
counts, to state theaccount himself, and render a judgment against
him ex parte.
We do not consider it necessary to enter upon the enquiry,
whether, in this case, a sufficient excuse is not shown for not as-
certaining the amount in the guardian's hands, previous to a suit
on the bond, because so long as the relation of guardian and
ward subsists, the latter cannot maintain an action at law against
the former.
The removal of. the guardian from the State was, dou'bt-
less a sufficient reason for severing that relation, and upon
application to the Orphans' Court, the letters would have been
revoked, and under the existing statute, upon application, the ac-
count can also be settled, after which no obstacle will] exist to a
suit on the bond.
From this, it appears, the suit was prematurely brought, and
the demurrer to the declaration was pi-opcrly sustained.
Let the judgment be affirmed.
ALABAMA.
Dunn V, Dunn.
ja»u>
DtJNN V. DUNN.
1. Where the payee of a note deposits it in the hands of an agent to be col-
lected, who causes a suit to be instituted thereon in the payee's name, for
his own use, and upon a judgment being obtained, refuses to yield the con-
trol thereof, but insists upon collecting and appropriating the proceeds to
himself, a Court of Equity may enjoin the agent from all further interfer-
ence, and the defendants in the judgment from paying the same, until Uie
matters shall be there heard and adjudicated.
2. The complainant alledges that he placed a note in the hands of the de-
fendant to collect, on which the latter recovered a judgment for his own
use, and insisted on appropriating the proceeds ; the defendant, in his an-
ser, insisted that the note was placed in his hands to collect, and pay him
self what the complainant then owed him, and for subsequent advances :
Held, that so far as the answer seeks to charge the complainant, it is ir-
responsive to the bill, and the onus of sustaining it rests upon the defend-
ant :»i<iv<.?.TV
3. The assignment of an account by the party to whom it purports tob« d(^
and testimony that he (having since died) kept correct accounts, does not suf-
ficiently establish its justness to authorize the assignee to set it off to a suit
in equity against him, brought by the person charged with it
4. A reference to the Master, prematurely made, and embracing a matter
which the Court should have first considered, will not be available on er-
ror, where the parties acquiesced in tlie irregularity.
5. Where a bill is for discovery and relief, if the answer, instead of furnish-
ing a discovery, is a denial of the matter alledged, it is competent for the
complainant to make out his case by prooC «
Writ of Error to the Chancery Court of Benton.
The defendant in error filed his bill, setting forth, that on the
first of January, 1838, Peter Walden and John Boozer, made
their bill single, by which they promised to pay to him, or bearer,
the sum of six hundred dollars, twelve months after date ; that in
February, 1839, being about to leave the State, he deposited the
same in the hands of Henry Dunn as his agent, wdthout invest-
ing him, either by contract or otherwise, with any other interest
therein ; that afterwards, his agent caused the writing to be put
in suit in the name of the complainant, for his own use, and thus
JUNE TERM, 1845. 980
Dunn V. Dunn-
recovered a judgment against the obligors in the Circuit Court
of Benton, for the sum of five hundred and ninety dollars, besides
costs.
It is further stated, that an execution had issued on the judg-
ment and was in the hands of Robert S. Porter, the sheriff of
Benton, at the time of the exhibition of the bill ; that the com-
plainant had given notice to the attorneys who conducted the suit
at law, as well as to the defendants in the judgment, and the she-
riff, of his claim to the money that might be collected thereon ;
and prohibited its payment to his agent. The complaijiant had
demanded of Harris Dunn the attorney's receipt which he had
taken, or that the control of the judgment be given to him, which
was refused, &c. The bill concludes with a prayer for an in-
junction and subpoena; both of which were regularly issued.
The bill was answered by Henry Dunn, denying that the writ-
ing in question was left with him as the complainant's agent, to
put into an attorney's hands for collection, and take a receipt
therefor in the complainant's name, and allcdging that he receiv-
ed it under the following circumstances, viz : The complainant
being about to leave the State, to remain abroad for an indefi-
nite period, purchased some property of respondent, (which is
particularly mentioned,) was indebted to him in the sum of one
hundred and twelve dollars for merchandize sold, and money lent,
also in several promissory notes, the amounts and dates of which
are particularly stated. To secure these several sums the com-
plainant gave respondent the specialty, to collect by suit and ap-
ply the proceeds to the payment of his own demand. It was
further agreed between the complainant and defendant, that as
the latter was to leave his wife and children in this State, the for-
mer should give them such necessary assistance as he could du-
ring the absence of the defendant. Under this branch of the
agreement, the respondent paid several sums of money, and gave
his individual notes in order to protect his property from being
seized and sold by his creditors, and his family from being distress-
ed, all which are particularly stated with rctcrcncc to the credi-
tors, amount, &c. These payments it is alledgcd, were made at
tl)e request of the complainant's wife. In addition to this, respon-
dent alledges, that he has had to encounter dillicult and protract
cd litigation in the recovery of the judgment. Whenever the
99
786 ALABAMA.
Dunn V. Dunn.
complainant will pay respondent wliat he justly owes him, he will
renounce his lien upon the judgment, and so informed the com-
plainant before he filed his bill.
The defendants, Walden and Boozer, moved the Court to dis-
miss the bill as to them, for want of equity, which motion was
overruled. Then the defendant, Dunn, moved the Court to dis-
solve the injunction, upon his answer ; this motion was granted
upon the execution of a refunding bond; and it was thereupoa
referred to the Master to ascertain the facts in respect to the al-
ledged agreement by the complainant to pledge the specialty iw
question to the respondent, and to take and report an account
of the sums paid by the latter for the former, or due from the for-
mcr to the latter.
The evidence taken before the Master accompanies his re{x>rt»
and is referred to ; his conclusions are, 1. That the note of Wal-
den and Boozer was only delivered to the respondent as a friend
of the complainant, to be collected for the use of the compkiinanf,
and not as collateral security as alledged in the answer of re-
spondent. 2. That at the time the note was placed in the hands
of the respondent, the complainant owed him but a small sum of
money, if any thing ; but since that time the respondent has paid
money for him, &c., which in equity should be refunded, the ag-
gregate amount of all which is $372 05. 3. That after deduct-
ing the sum due the respondent, the balance of the judgment, viz:
#263 6G, should be paid to the complainant.
Exceptions were taken to the report by the respondent, and
overruled. The Chancellor was of opinion that from the proof,
it was difficult, if not impossible to ascertain with exactness, the
state of accounts between the parties, that the report of the Mas-
ter was as favorable to respondent as it could be, and rendered
a decree accordingly, adjudging that each of the parties in con-
troversy pay a moiety of the costs. The defendant, Dunn, alonQ
assigns error. ' i •
S. F. Rice, for the plaintiff in error, made the following points :
1. The complainant had a plain and adequate remedy at law for
the conversion of the specialty, and consequently the bill should
have been dismissed for want of equity. [1 Story's Eq. 439-40 ;
2 Johns. Ch. Rep. 169, 171 ; 1 Litt. Rep. 86 ; 22 Maine's Rep.
207 ; 8 Porter's Rep. 63 ; 3 Ala. Rep. 521 ; 7 Ala. Rep. 585.}
JUNE TERM, 1815. 187
Dunn V. Dunn.
2. The bill should have been dismissed because the answei* did
not make the discovery souf^ht, (1 Story's Eq.43G-7,) or because
the alleg'ala and yrohata did not correspond, or because there
was no proof that tfie complainant demanded the writing before
the bill was filed. 3. The decree is founded upon the report of
the Master, which is opposed to the proof, and entirely miscon-
ceives it. One witness testified that Walden and Boozer's note
was given to Henry Dunn- to secure him in what the complain-
ant owed, that the balance due thereon was to be collected for
the use of the complainant's family, and that the complainant said
the defendant, Dunn, should lose nothing for attending to fiis busi-
ness. Three other witnesses who were examined, merely state
that the pafKir was placed in Henry Dunn's hands /or coZ/edton,
without denying that he had a lien upon it. The testimony of
these witnesses is clearly reconcileablc with each other.
4. The items of the account of Henry Dunn, on which the
Master reported favorably, amounted to $436 91, on the 18th
July, 1843, and those rejected by him amount to $205 05, and
leave a balance in favor of the defendant, after allowing him to
appropriate the entire judgment, of $53 03. This will appear
from the evidence and the answer, which fully sustains the reject-
ed items. 5. No costs should have been adjudged against the
defendant, Dunn. [G Ala. Rep. 518.]
No counsel appeared for the defendant in error.
COLLIER, 0. J.— In Kirkman, et al. v. Vanlicr, 7 Ala. Rep.
217, we stated quite at large the grounds upon which Courts of
Equity exercise jurisdiction in matters of account, and it is not
necessary here to repeat them. In cases of agency, a more en-
larged jurisdiction has sometimes been assumed. It has been
said, that although an action at law will lie against one in whose
hands money had been deposited to lay out in the purchase of
an estate, or any other thing, yet a bill in equity may be filed
against him, praying that he may lay out the money, upon the
hypothesis that he is a trustee. And where an assignment is
made to a factor, for sale, bills have been entertained, notwith-
standing there is a clear remedy at law, if the principal had
thought proper to proceed in that way. [See Scott v. Surmao,
Willes's Rep. 405.] But Mr. Justice Story says, that the true
788 ALABAMA.
Dann v. Duain.
source of jurisdiction in such cases, is not the mere notion of a
virtual trust ; for then equity jurisdiction would -cover every case
of bailment. But it is the necessity of reaching the facts by a
discovery — having jurisdiction for such a purpose, the Court, to
avoid multiplicity of suits, will proceed to administer the proper
relief. Hence, says he, a Court of Equity, under the head of
discovery, will entertain a suit for relief in the case of a single
consignment to a factor for sale. [1 vol. Com onEq. 444-5; see
also Halstcad v. Robb, 8 Porter's Rep. 03.]
In Russ V. Wilson, "22 Maine Rep. 207, the plaintiff set forth
in his bill, that he had left with the defendant, an attorney at law,
certain demands against different persons for collection, under an
agreement that the defendant should applf^ the proceeds, when
collected, to the payment of a note then held by the defendant
against the plaintiff, and should account for the surplus, and avers
that more than sufficient had been collected to pay the note, but
that the defendant had failed to apply the same, or otherwise ac-
count for it : Held, that the plaintiff had a plain and adequate
remedy at law, and his bill could not be entertained. And in
Ashley's Adm'rs and Heirs v. Denton, 1 Litt. Rep. 86, the Court
said, that the jurisdiction of Chancery, exercised upon the ground
of a trust, ought to be confined to the controlling of legal rights
vested and remaining in trustees, created as such in some legal
manner, and not extended to all cases of abused confidence.
In the present case, the object of the bill is not to recover dam-
ages of the defendant for having converted the note which the
plaintiff left in his hands to be collected, nor is it to recover upon
an allegation that the defendant has received the amount, or a
part of it, due thereon. If the bill had been framed upon either
of these hypotheses, we should be inclined to think it could not be
entertained; for then the remedy would be plain and unembarrassed
at law. In the first case trover, and in the second assumpsit for
money had -and received, would lie. i ; >.;.'f-! '.oitil
But the plaintiff does not elect to consider the acts of the de-
fendant as a conversion, so as to divest his property in the note,
and put him to an action at law for his indemnity. He insists up-
on his right to it as still continuing, notwithstanding it has been
sued in the defendant's name, and denies that he ever gave him a
lien upon it, or authorised an appropriation of its proceeds to any
amount. If the plaintiff never invested the defendant with any
JUNE TERM, 1815. 780
Dunn V. Dunn.
interest in it, but merely deposited it with him to be placed in the
hands of an attorney for collection, his right to it was not lost, by
the form in which the suit was brought. This being the case he
was certainly entitled to the fruit of the judgirrent, and should
consequently be allowed to control it. This right, the defendant
refused to concede, and we cannot very well conceive how the
plaintiff could avail himself of it, unless equity should lend him its
assistance.
In May, et al. v. Nabors, [6 Ala. Rep. 24,] it was alledged in
the bill that N. ieft in the hands of P. a promissory note, made
by S. aRd W., for collection ; that P. afterwards transferred the
same to M. for an equivalent paid him by the latter ; M. brought
a suit against the makers in the name of N., for his use, and re-
covered a judgment against them. Afterwards N. filed a bill
setting out the facts, alledging P's insolvency and removal from
tha State, and praying that M. surrender to him all control over
tlie judgment and the collection of the money ; and (hat M., his
attorney, &:c., be restrained from collecting the same. The alle-
gations of the bill were sustained by proof, and the chancellor
adjudged that the complainant was entitled to the relief sought.
This Court, on error, held, that as N. had never transferred his
interest in the note, it was incumbent on M. to satisfy himself t»f
P's right to dispose of it, and that P's agency did not authorise
him to transfer it. The decree was consequently affirmed. [Sec
also Kirk v. Glover, 5 Stew. & P. Rep. 340.]
In the case cited from 6 Ala. Rep. the question of jurisdiction
does not seem to have been made, or considered by the Court.
The allegation of P's insolvency could not have been regarded as
essential; for if insolvency was necessary to confer jurisdiction,
it should have been alledged that M. was in that predicament.
As to him N. would not have been remediless at law ; for if he
bad received the money due upon the judgment, it might have
been recovered of him by an action for money had anxl recxjivcd,
ifttK3 transtcr of the note by P. was unauthorized. The principle
then, which influenced our judgment in May, et al. v. Naborsj
applies with all force to the case at bar. • ,
We agree with the chancellor, that the proof in the cause is
so loose and unsatisfactory, that it is diflicult to do exact justice
between the parties. The witnesses arc not, as to some of tlie
facts they relate, sutHciently explicit as to time, &.C., so tliat it can
790 ALABAMA.
Dunn V. Dunn.
not bo known what wiis the extent of the complainant's liability
to Henry Dunn, when he sold him the horses, &c., and how the
price agreed to be paid for them was appropriated. It must
however be remembered that the onus of establishing the indebt-
edness of the complcrinant to the defendant, Henry Dunn, de-
volves upon the latter. The bill is framed upon the hypothesis
that the complainant never parted with his interest in the note,
or in any manner pledged any part of its proceeds. This is not
only denied by the answer of the principal defendant, but he sets
up a contract between himself and the complainant, by which he
was to be paid from the amount collected on the note vfliat the
latter was then indebted to him, and be allowed for subsequent
advances for the complainant's family. So for as the answer
seeks to charge the complainant, it is affirmative, irresponsive to
the bill, and must be proved by the party alledging it.
It is perfectly clear that the defendrnt has, failed to prove his
entire demand. There is no legal proof of the justness of the
medical account, which he insists he has paid ; nor is the fact of
payment shown otherwise than by an assignment of the account,
by the person in whose favor it is stated. The testimony that
the physician kept just accounts, (although he was dead) was not
evidence to establish its correctness. [Nolley v. Holmes, 3
Ala. Rep. 642.]
It is proved by one witness, that the defendant, Dunn, inform-
ed him when the note was sent to an attorney to put in suit, tliat
the complainant was indebted to him but ninety dollars. An-
other witness testifies, that in the spring of 1842, (about the time
the judgment at law was obtained,) he heard the same defendant
say that his claim upon the note amounted to only two hundred
dollars. These admissions of the defendant, taken in connection
with the proof, forbid us to disturb the decree in the cause.
We will not consider whether the reference to the master was
not prematurely made, and did not embrace at least one inquiry,
that should have been made and considered by the Court. The
reference seems to have been acquiesced in by both parties, and
could not now be objected to as irregular, if either party was in-
clined to complain of it.
The objection that it does not appear that the complainant de-
manded the note, or the control of the judgment,is not well found-
ed. It is clearly inferrable from the answer of Dunn, if not from
JUNE TERM, 1845. m
Johnson v. Gaines.
the testimony taken before the master, that the complainant had
sought an adjustment, and that this defendant had refused to yield
the right to the judgment, unless the complainant would extin-
guish the demand which the defendant set up against him.
The bilf is not for a discovery merely, but it is for relief also,
and should not have been dismissed, because its allegations were
denied by the answer of the defendant Dunn. Itis competent
for the complainant to make out his case by evidence ; and the
assumption that the allegata and probata do not correspond, can
not be supported.
In respect to the question of costs, it sufficiently appears from
what has been said, that the defendant was not free from fault,
and we can not say that he has been improperly taxed with a part
of the costs.
Our conclusion, from a view of the entii:e case, is, that the de-
cree naust be affirmed, with costs.
JOHNSON V. GAINES.
1. Although the writ, and declaration, may describe the defendant as an ex-
ecutor, yet if the declaration shows tliat tlie action cannot be maintained
against him in his representative capacity, it wiil be considered as a de
scription merely of the person, and a judgment will be rendered against
him in his indivi dual character.
Error to the County Coart of Mobile.
Assumpsit by the plaintiff, against the defendant in error. The
writ issued against the defendant in error and Abner S. Lips-
comb, executors of Catharine V. George, deceased, which whsf
returned executed on Gaines, and not found as to Lipscomb.
The declaration alledges that Abner S. Lipscomb, at the time the
writ issued, and ever since, has not resided within the State of
Alabama, but is without the jurisdiction of the Court, and has no
7S2 ALABAMA.
Johnson v. Gajnoa.
pro)X3rty or estate within the State of Alabama, and discontinues
ihc action as to him.
The indebtedness is charged to be for work and labor, (fee.
done, performed, and bestowed, in and about the business of the
said defendant, a'S executor aforesaid, and at his special instance
and request ;' also for money paid, laid out and expended, and
money had and received to, and for the use of the plaintiff; and
also upon an account stated. And being so indebted, he the
said defendant, in consideration thereof, &c.
To this declaration the defendant demurred, and the Court
sustained the demuiTer,imd rendered judgment for tlie defendant.
Se WALL, for plaintiffin error, contended,»that the only proper
judgment that could be rendered upon the declaration, was, a
judgment de bonis propriis ; that the allegation that he was an
executor, was a mere description of the person. He cited 4th
Ala. 271 ; 1 H. B. 108 ; 7 Taunton, 580 ; 4 Term, 347.
As to the right to proceed against one executor, when the other
leaves the State, he cited 5 Mass. 195 ; 9 Conn. 437 ; 8 Porter,
584; 2 Ala. 126. .
J. HalJ', contra, contended, that at all events, there was a
misjoinder of counts, which was fatal on demurrer. [2 Porter,
33 ; Minor, 276 ; 1 Chitty's PI. 208 ; 0 Ala. 544.]
OIlMOND, J. — It is probable this action was commenced,
upon the mistaken supposition, that the estate was responsible
for debts created by the executor, and that it was the inteation to
sue the executor as such. Be this as it may, it is very clear the
declaration shows, that no action can be maintained against the
defendant in his representative character, as the debt was created
by him, since his qualification as executor, and although the
work may have been done, or the money advanced for the ben-
efit of the estate, he represents, it as a charge against him indi-
vidually. This being ascertained, the naming hinrr as executor
in the writ, and declaration, as it neither adds to, or diminishes
his individual responsibility, is matter of form and not substance,
as by reference to the claim asserted against him, H is evident
he is not sued as cxccutoi', though described as such. This is
JUNE TERM, 1845. 793
Cole, use, &c. v. Justice.
then merely descriptio personae, which, according to all the au-
thorities, does not vitiate.
The demurrer to the declaration was improperly sustained,
and the judgment must be reversed, and the cause remanded.
COLE, USE, &c. V. JUSTICE.
1. The payee of a note brought an action thereon for the use of a third per^
son, who had become its proprietor, against one of the promisors, a surety ;
the consideration of the note was the sale of a tract of land by the payee
to the principal maker ; at the time of tlie sale there was an unsatiBfied
judgment against the vendor, operating a lien upon the land, tliis judg-
ment the beneficial plaintiff autliorized the principal to discharge, and pro-
mised to allow it as credit against tlie note ; and it Avas accordingly dis-
charged : Hdd, that the promise to the principal enured to the surety ;
that it was a direct and original undertaking to allow tlie payment, not ob-
noxious to the statute of frauds, and eo instanti it was made, extinguished
the note^o tanto.
2. Although the vendee of land, with whom the vendor has covenanted that
the estate is free from incumbrance, has a right to extinguish outstanding
incumbrances to perfect his title, yet the amount tlms paid will not be al-
lowed as a set off in an action for the purchase money, nor will it avail the
vendee at law, under the plea of failure of consideration.
Writ of Error to the Circuit Court of Barbour.
This was an action of assumpsit at the suit of the plaintiff in
error against the defendant. The cause was tried upon issues
to the pleas o^ non-assumpsit, set off, and the failure of conside*
ration, a verdict returned for the defendant, and judgment render-
ed accordingly.
On the trial, the plaintiff excepted to the ruling of the Court.
From the bill of exceptions, it appears that the consideration of
the note declared on, was the sale of a tract of land by the nomi-
nal plaintiff, to James B. Smith ; and that the defendant was the
100
mi ALABAMA.
Cole, use, &c. v. Justice.
surety of the latter. Process not being served on Smith, the suit
was discontinued as to him.
The defendant released Smith from all liability to pay the costs
of this action, and he was permitted to give evidence, notwith-
standing the plaintiff objected.
Although the plaintiff made the sale of the land to Smith, yet
by agreement, one Douglass, in whom the legal title was vested,
made the conveyance to the purchaser. At the time of the sale,
there was an unsatisfied judgment against Douglass, which ope-
rated a lien upon the land ; on which an execution being issued
and levied, the defendant, to prevent a sale of the land paid off the
same.
It was shown that Bullock, the beneficial plaintiff, had author-
ized Smith to satisfy the judgment, and pron>ised to allow such
payment as a credit on the note in question ; and that after this
authority was given, $83 50 was paid.
The plaintiff prayed the Court to charge the jury, that the au-
thority to Smith, and payment, was no defence for the defendant,
but could only be set up by the vendee. This charge was re-
fused, and the Court instructed the jury that these facts might be
set up by the defendant to the extent to which they would avail
his principal. Further, that if the beneficial plaintiff agreed to
allow the defendant a credit upon the note declared on, if he
would satisfy the judgment against Douglass, then a payment by
the defendant under such agreement is a good defence to the
action as far as it goes.
The Court also charged the jury, that if there was a legal in-
cumbrance upon the land 'at the time of Smith's purchase, under
which it could have been sold, then, either Smith or the defend-
ant would be authorized to pay off such incumbrance, and set up
the payment as a defence to this action.
P. T. Sayre, for the plaintiff in error, made the following
points: I. The charges which assume that a payment by either
the defendant or his principal under the authority of the benefi-
cial plaintiff, would constitute a good defence, cannot be sup-
ported : conceding that there was such an agreement, it was ob-
noxious to the statute of frauds, because it was an undertaking
to answer for the default of a third person. 2. If there was a
covenant, or other stipulation, binding the vendor of the land to
JUlNE TERM, 1845. 795
Cole, use, &c. v. Justice.
remove the incumbrance which the judgment against Douglass
created, the breach of such covenant or stipulation would be re-
garded as unliquidated damages, and could not be set oif under
the statute. The discharge of that incumbrance by the purcha-
ser or his surety, (if allowable,) would not vary the character of
the defence. [Dunn, use, &c. v. White & McCurdy, 1 Ala. Uep.
N. S. G45.J
J. BuFoRD, for the defendant, insisted, that the payment of the
outstanding judgment against Douglass was authorized by the
contract for the sale of the land, as well as Bullock's directions
to Smith ; and whether considered in reference to one or the
other, the defendant may avail himself of the payment as a pay-
ment, or set off. The agreement of Bullock to allow it, if the in-
bumbrance was extinguished, requires no other consideration to
entitle the defendant to set up the payment in his defence.
COLLIER, C. J. — The promise by Bullock to Smith to al-
low as a payment on the note in question, the amount of the judg-
ment against Douglass if he would discharge it, though it may
have been made to him alone, enured to the defendant, his surety.
If a principal obtain a claim against his creditor, which he may
use as a set off, in a several action against a surety, the latter may
with the assent of his principal, avail himself of the set off, as a
defence to the action. This point was so ruled in Winston v.
Metcalf, G Ala. Rep. 750. Here the right of the surety to set up
as a defence, a matter to which the principal contributed, is even
less questionable. The beneficial plaintiff agreed to allow the
money advanced by Smith as a payment ; and eo instanti upon
the advance being made, the note was thus far extinguished,
and was not enforceable, against either the principal or his
surety.
Such a promise by Bullock, is not obnoxious to the sta-
tute of frauds, as supposed in argument. It is not an undertaking
to answer for the debt or default of another ; but it is a direct
and original promise to pay Smith if he would satisfy the judg-
ment against Douglass. The engagement became absolute
by the performance of the condition, viz : the payment of the
money.
In Dunn, use, &c. v. White & McCurdy, 1 Ala. Rep. N. S.
796 ALABAMA.
Alexander v. Alexander.
645, we held that the vendee of land has the right to extinguish
outstanding incumbrances, and charge the vendor with the amount
thus paid to perfect his title, if the vendor has entered into a cove-
nant with him, that the estate is free from incumbrance. Yet,
although such was the law, the amount paid to extinguish an in-
cumbrance, could not be allowed as a set off" in an action for the
purchase money, nor would it avail the defendant at law, under
the plea of failure of consideration. The case here cited, is de-
cisive to show, that the last charge given cannot be supported.
The judgment is consequently reversed, and the cause re-
manded.
ALEXANDER v.^ALEXAKDER.
1. The guardian of a lunatic, under our statute, has the same powers, and is
subject to the same restrictions, as the guardian of an infant.
2. A guardian cannot charge his ward's estate with any counsel fees he may
choose to pay ; it must appear that the services were required, and ihe
compensation such as is usual, and customary for such services. Where
no proof is made, it is competent for the chancellor to determine the value
of counsel fees in his own Court, and this Court will not revise his deci-
sion.
3. An agreement to receive the services of a negro, for the board of an indi-
* vidual, is not cancelled by the slave becoming sick before the time ex-
pires.
4. A guardian cannot charge a commission for the custody and safe keeping,
of either money, or choses in action.
5. The value of the board of a lunatic, depends upon his condition, and the
care, attention, and watchfulness, necessary to be bestowed upon him, to
be ascertained by proof. Declarations of persons, " that they would not
board him for $500 a year," is not proof that it was worth that sum.
6. When a party to a suit in.chftncery, is examined before the master, upon
an account taken by him, his" ans weirs to the points upon which he is ex-
amined, are evidence for him ; he cannot introduce irrelevant matta* as to
which he is not questioned, and make it evidence for him. The statute
authorizing a party to prove items not exceeding $10, by his own oath
JUNE TERM, 1845. 797
Alexander v. Alexander.
has no reference whatever to the practice in chancery, when a party is re-
quired by the chancellor to submit to an examination before the master.
7. In transporting tlie lunatic from place to place, it is the duty of the guar-
dian to select the cheapest mode consistent witli tlie comfort and safety of
tlie lunatic ; if the public conveyance is suitable, and cheaper than a pri-
vate one, it is his duty to take it.
8. To authorize a charge for attention to a sick negro, it should be shown
how long he was sick, and tlie nature and value of the attention bestowed
upon him.
9. An account receipted for the board of the lunatic, is not a sufficient vouch-
er, without proving, that the services were rendered, the money paid, and
the charge reasonable.
10. Acts done by the guardian, without authority, on account of the ward,
will not bind the ward, unless beneficial to. him. Therefore, wlien the
guardian of a lunatic, -undertook to commence the business of planting on
behalf of the lunatic, purchasing mules, provisions, &c., and the enterprize
proved unfortunate, he was held responsible for tlie hire of tlie slaves. It
was the duty of the guardian, if he considered it more beneficial to tlie lu-
natic to work tlie slaves, tlian to hire them out, to apply to the proper tri-
bunal for authority so to act.
11. Where the guardian made an exchange of two of the slaves of the luna-
tic's estate, those interested in the estate, had the right to disaffirm the con-
tract, and cliarge him with tlie value of the slaves so exchanged.
12. The appropriate function of an exception to a master's report, is, to point
with distinctness, and precision, to the error complained of. An objection
to the result attained by tlie master upon the settlement of an account, is
too general to be noticed. It is tlie duty of tlie party objecting, to except
to the particular items allowed, or refused, and it will tlien be tlie duty of
the master, to certify the evidence by which tlie disputed item, was admit-
ted or rejected.
13. When-costs are directed to be paid out of tlie estate, if the litigation ia
unnecessarily protracted, for tlie purpose of vexation, the Court will apply
the proper corrective, by taxing the party so acting, with the costs.
Error to the Chancery Court at Montgomery.
This case comes here upon exceptions to the master's report,
in two cases, heard together, by consent ; one filed by the plain-
tiffin error, as guardian of a lunatic, to dissolve the marriage ;
thqi-other, by the wife, for a divorce and alimony. The chancel-
lor decreed the marriage valid, and taxed the complainant with
the costs. This decree was so far modified by this Court, as to
mm ' ALABAMA.
Alexander V. Alnxander.
require the costs to be paid out of the lunatic's estate. An ac-
count being ordered of the lunatic's estate in the hunds of the
guardian, the master reported, rejecting many of the charges set
up by the guardian, to which he filed twenty-two exceptions, and
the wife five. The chancellor overruled most of the exceptions
of the complainant, and sustained three of those made by the wife
of the lunaticj.which is now assigned for error, but which need
not be noticed further, than they are in the opinion of the Court. •
Tuo. Williams and J. P. Saffold, for plaintiff in error. — A
comittee of a lunatic is entitled to an allowance for his services
in receiving and disbursing money, &c. [3 Johns. Ch. 43.] He
is permitted to employ counsel to aid in the management of the
estate, and is allowed the costs of suit. [4 Dess. 394.]
The maintenance of a lunatic ought always to be ample, and
in proportion to the estate of the party, and increase with the in-
crease of the estate. [23 Law Lib. 107 ; top page, 1 McCord's
Ch. 4.]
A trustee may employ agents, [Lewin on Trosts, 448, 449,
451,] and is only required to act as prudently for the trust, as he
would have acted for himself. A trustee acting in good faith, is
entitled to a prompt indemnity for his necessary disbursements.
[G Johns. C. 02 ; 2 McCord's Rep. 82 ; 1 Gill & J. 273 ; 2
Bland, 409.]
Hayne, contra. — The account presents the startling fact, that
in four years, an estate amounting to $7766, and of the average
annual value of 8970, has been reduced by the management of
the guardian, to $4,720. .
It is in proof, that the guardian said he intended to consume the
estate in litigation ; and we find that he has already paid $800
in counsel fees, and upwards of that sum in costs of Court ; and
has made charges in his own favor of about $3,300. An exami-
nation of the testimony will show an utter disregard of the inter-
ests of the lunatic, and an attempt to use the property for his own
benefit, and that the decision of the chancellor is strictly correct.
ORMOND, J The chancellor, in acting upon the decree,
made in this cause, when it was fonnerly before this Court, [6
Ala. 520,] where it was held, that the costs of the proceeding
JUNE TERM, 1845. Km
Alexander v. Alexander.
must be paid out of the estate of the lunatic, understands it to
mean, " tha-t all reasonable and necessary costs, and expenses,
incurred by either of the parties, in prosecuting, or defending the
suits, should be paid out of the estate of the lunatic." This is
doubtless a correct exposition of the rule laid down by this Court,
which was made in refcrenca to the suit instituted by the guar- *
dian of the lunatic, to dissolve the marriage. As it respects U^e
settlement of the accounts of the guardian of the lunatic, the act
of 1819 ascertains what shall be his powers, duties, and responsi-
bilities, and declares, " that he shall have the same power, to all
intents, constructions, and purposes, and be subject to the same
rules, orders, and restrictions, as guardians of orphans."
We shall take up the exceptions in the order they are found
in the record. The first relates to the rejection by the Chancel-
lor, of the allowance by the Master, of 8800 as counsel fees, which
was reduced by him to 8300. It is urged, that as there was no
evidence of the nature of the services, the Chancellor had no
means by which to determine, whether the allowance was cor-
rect or not, and that the allowance made by the Register, must
be presumed to be correctprima facie.
We take it to be a clear proposition, that a guardian cannot
charge his wards estate, with any counsel fee he mny choose to
pay, but that before he can be allowed the benefit of money thus
paid, in his account with the ward, it must appear in some mode,
that the compensation thus allowed, was reasonable and proper.
No proof having been made, it was doubtless competent for the
Chancellor to determine the fact of the reasonableness of the com-
pensation, for professional services in a case depending in his
own Court. Nor has this Court the means of determining, that
his decision is not correct. As the guardian required the assis-
tance of counsel to enable him to conduct the cause, he would
doubtless be compelled to pay such compensation as was usual,
and customary for such services — and if thus paid, it should have
been allowed him ; but there is no such proof, and we cannot
perceive from any thing in the record, that the allowance of three
hundred dollars, made by the Chancellor, was not a fair and ade-
quate compensation.
2. The Register reported that many of the expenditures of
the guardian were unreasonable and unnecessary, and that the
reduction of the estate in the guardian's hands was unwarranted.
800 ALABAMA.
Alexander v. Alexander.
&c. This was excepted to, and properly overruled by the Chan-
cellor, as it presented no point for determination, being merely
introductory to the examination of the particular items of the ac-
count, which were afterwards rejected.
3. The 3d and 4th exceptions, are for rejecting a charge of
$125, for boarding Ethelbert Alexander, (the lunatic,) two and a
ha^f months, and $20 for the board of a negro girl named Lish,
for the same time. It appears from the exceptions and the testi-
mony, that there was an agreement to take the services of the
negro for the board of the lunatic. This was in the year 1839,
whilst he was able to contract, and we think with the Chancellor,
that if, as appears to be the fact, there was such a contract, it
was not cancelled or rescinded by th6 negro afterwards becom-
ing sick, and of no value, any more than it would have been if
the contract had beecn to pay for her services in money.
4. The fifth exception relates to the rejection by the Register,
of the charge of two and a half per cent, for keeping the notes bc'
longing to the lunatic. Guardians are entitled to a fair compen-
sation for their receipts and disbursements, but there is neither
law or usage, which will justify their' charging a commission for
the mere safe keeping of money, and a fortiori, not for the cus-
tody of securities for money. This exception was properly over-
ruled.
5. The guardian having charged the lunatic at the rate of fif-
ty dollars per month for his board, the register reduced the com-
pensation to $250 per annum, that being the rate of boarding at
the Lunatic Assylum, in South Carolina. The Chancellor sus-
tained this exception, so far as to allow $400 per annum, justly
observing, that the rate of boarding established at a public insti-
tution in another State, could afl^ord no criterion of the value of
board in a private family in Alabama. The value of the board of a
lunatic, must depend upon his condition, and the care, attention,
and watchfulness necessary to be bestowed upon him. This, it
is obvious, is matter of proof, but there is no testimony which is
satisfactory upon this point. The witnesses do not state, what
the value of the board of this person was, but say, that they would
not board him for less than five or six hundred dollars a year —
and we do not doubt witnesses might have been found in abun-
dance, who would not have boarded him for twice that amount.
This is no criterion of its value, and we cannot therefore say,
JUNE TERM, 1845. fii
Alexander v. Alexander.
that the allowance made by the Chancellor, is. not ample. So fer
indeed as we can judge, from the account given of the lunatic by
the witnesses, it appears to be sufficiently liberal, as he was not
a furious madman, requiring constant attention, and in fact did
not receive it.
6. The Register rejected the charge of $30, for keeping three hors-
es two months, assigning as his reason, that there was no proof of
the fact, but the testimony of the guardian himself. The Chan-
cellor sustained the rejection, upon the ground, that the guardian
was not competent to prove items in his own account, above the
sum of ten dollars.
The defendant was examined as a witness, by the direction of
the Chancellor, in the interlocutory decree, directing an account
to be taken. The design of the statute (Clay's Dig. 352, § 43)
authorizing a party to prove items not exceeding ten dollais, by
his own oath, has no reference whatever to the practice in Chai*»
eery when a defendant is required by an order of the Chancellor
to submit to an examination as a witness. In Hart v. Ten Eyck,
2 Johns. Ch. 513, Chancellor Kent says, a reference in such ^
case, under the usual order, has the effect of a supplemental bilt
of discovery, and in Templeman v. Fauntleroy, 3 Rand. 444, it
is said, « the examination has the same effect, as that of an answer
to the bill." To the points then, to which the guardian, as d©-*
fendant, was examined by the wife and child of the lunatic, ills
answers are evidence for liim, precisely, as they would have beea
in an answer to a bill for a discovery. He cannot give evidence
for himself upon matters to which he is not examined by the op-
posite party. [Armsby v. Wood, Hopkins C. Rep. 229.J As it
docs not appear that the guardian was examined as to this charge
in his account, by tlie opposite party, his testimony was properly
rejected by the register.
7. The eighth exception relates to the rejection of the charge
made by the guardian, for conveying the lunatic to Columbia, S.
Carolina. The allowance made by the Register was the cost of
travelling by the public stage, and two dollars a day for the tr©u^
ble of the guardian. It appears from the testimony that tl»e In*
natic was not a furious madman, and it is evident that he could
have been conveyed as well by the stage coach, as by private
conveyance. Indeed the latter would be the clieapcr nood^
though in tliis case it seoms that it cost more. It was the duty <ii
101
802 ■ ALABAMA.
Alexander v. Alexander.
tb^ guardian to select the cheapest mode, consistent with the
(Somfort and safety of the lunatic, and he cannot be allowed
more.
8. We think with the Chancellor, that the charge of forty-five
dollars for attention to Silas, is not sufficiently proved. It is not
shown how long he was Sick, nor how much it was worth. The
whole amount of the testimony is, that the guardian, " charged
$4.5 for attending to Silas nine months, during which time
he was sick." This is too general, vague, and indefiinite, to au-
thorize the Register to make the allowance. It should have
been shown how long he was sick, and what was the nature and
vakie of the attention bestowed upon him.
i 9. The 11th exception is for sustaining the Register, in reject-
ing a claim for $\S2, (voucher 12.) money paid to one Doster,
for board, &c. of the lunatic, for the year 1839. The Register
rejected this because there was no proof other than the account
of Doster, receipted, that the board was furnished, and because
the item was contradicted by other facts in the record. The
Chancellor appears to have considered, that the item was proved
by the guardian himself. Upon looking into his testimony, we
are unable to find any such proof. He says, " In 1839, Ethel-
bert boarded with me five or six months ; $182 was a fair com-
pensation for his board that year." This is certainly not proof of
the fact, and the account of Doster, is for the entire year, at a
given rate per month. Before this item could have been admit-
ted, it should have been proved, that the services were rendered
and the money paid ; also, that the charge was reasonable.
These facts are not shown by the production of the receipt, but
on the contrary, as the Register remarks, it is contradicted by
other parts of the testimony and facts in the cause. This excep-
tion was therefore properly overruled.
10, The 11th assignment is, that the Chancellor erred in over-
ruling the 13th exception, which was for rejecting the account of
1842, being the result of the labor of the slaves for that year, and
charging him with hire, without proof of the value of the hire.
It appears that the guardian hired out the slaves, in 1840, and
1841, but that in 1842 he undertook to work them for the benefit
©f the lunatic, purchasing mules, provisions, &c. These, it ap-
pears, the guardian purchased from himself, and upon the break-
i«g op of the establishment, and sale of the property, became
JUNE TERM, 1845. 803
Alexander v. Alexander.
again himself the purchaser at a greatly reduced price. By tins
operation, as might have been expected, the estate of the ]unati<5
sustained considerable loss. We entirely agree with the ChanceW
lor, that this proceeding is wholly unjustifiable. Independent o^
the manner in which the guardian conducted the mutter, by buy-
ing from and selling to himself, a course of conduct necessarily
leading to abuse, and which could not be tolerated, it was the du-
ty of the guardian, if he considered that the interest of the estate
required that the slaves should not be hired out, but should be
employed in this mode, to have applied to the appropriate tribu-
nal, for the necessary authority — an authority, which we think
no Court, under the circumstances of this case would have grant-
ed. The cases must be very rare, where an estate in the absence
of its owner, will be made to yield what the glaves would have
hired for. The general rule is, that acts done by the guard iaa
without authority, will not bind the ward, unless beneficial to him.
rM acpherson on Infants, 329, and cases there cited.] Doubtless,
there may exist cases, where a guardian finding his ward in pos-
session of an estate in lands and slaves, would be justified in keep-
ing the estate together, and working it for the benefit of the in-
fant ; and upon an enlarged view, this might be most beneficial
Ui the minor. That is not this case. Here the slaves had been
previously hired out. To commence the business -of planting, a
considerable outlay was necessary, in the purchase of mules,
plantation utensils, &c., and this too, with the strong probability
existing, that the enterprize would not yield, what would be re-
alized, by the more simple, and customary mode of hiring out the
property. Upon every view which we are able to take of the
case, we are satisfied the decision of the Chancellor was correct
— that this project, by which the property was diverted from its
natural, and customary channel, to a diflncult, and to say the least,
doubtful experiment, though done in good faith, was at the risk<rf
tbe guardian, and he must sustain the loss. Tlie further objecv
tion urged, is, not that the hire was chargetl at too higii a rate,
but that there was no testimony of its value. The evidence vraa
of the value of the hire, the two preceding, and the siicceeding-
years, from which, certainly, a just inference might be drawn of
its value during the intermediate period. And if put down by
the Register at too high a rate, might easily have been corrected
below. , - • f , '
804 = ALABAMA.
Alexander v. Alexander.
11. The 12th assignment is, that the Chancellor overruled the
14th and 15th exceptions, that the Register charged the guardian
with the value of two slaves, which he had exchanged for other
negroes. ■ ■ : i; ,-j,oi
The guardian had no authority whatever to make the ex-
change of the slaves, Ned, and Malinda, and upon the principles
laid down in regard to the previous exception, acted therein at his
peril, and subject to have his contract affirmed, if beneficial to the
estate, and disallowed if not. Here it appears to be the interest
of the estate to disaffirm it; such is the opinion of the Register,
and such is also the opinion of those representing the interests of
the wife and child. This was sufficient evidence for the Chan-
cellor, and is for this Court, of the true interest of the estate. He
was therefore properly charged with their value, of which there
was abundant testimony.
12. The 13th assignment relates to the charge against the guar-
dian, of 88,324 43, of notes, contrary to" the proof. This, which
was the 20th exception to the Master's report, the Court rejectee^
for its generality, and because it imposed on the Court the neces-
sity of examining a great mass of evidence, without pointing out
where the error was.
It is most undeniable, that the appropriate function of an ex-
ception is, to point with distincftness, and precision, to the error
complained of. It is too much to ask of the Court, to grope
through a vast mass of testimony, and documentary evidence, in
search of an error, which is alledged to exist somewhere, and by
connecting in this instance, the accountant with the Judge, to as-
certain what the error is. For it is not stated in the exception,
what is the true amount of the notes, in the hands of the guar-
dian. .^.■'•'1- ..-.•■■<•' ,-l <.^ ! ; •-,:> l.^.il -.ii
UpoW looking into the account presented by the guardian, (as
we presume it to be,) he charges himself with notes of the estate
and interest to January 1, 1840, to the amount of $7,633 83, de-
scribing each note particularly. The Master presents as the re-
sult of the testimony, a schedule, which accompanies his report,
by which he charges the guardian —
January 1, 1840, with notes, property of the ward, $8,324 43
Subtract guardian's credit, 197 52
Amount due to ward, January 1, 1840, $8,126 91
JUNE TERM, 1845. 805
Alexander V. Alexander.
It was sufficient for the Master to state the result of his find-
ing, and if the opposite party was dissatisfied with the amount
thus stated, it was his duty to except to such items as he consid-
ered improperly charged; it would then have been the duty of
the Master to certify the evidence by which the disputed item
was sustained. This not being done, and a mere genera! objec-
tion made to the Master's conclusion, it is impossible for the
Chancellor, if he was willing to encounter the labor, to investi-
gate the matter with any approach to certainty. The exception
was therefore properly overruled. [See Kirkman v.* Vanlier, 7
Ala. Rep. 227.]
13. The 14th assignment of error, is the overruling the 21st
exception to the report of the Master, charging four months hire
for the slave Silas. Upon what testimony this charge was made,
does not appear. It does appear however that the guardian had
possession of the slave at the commencement of the year, and the
proof when he became blind and of no value, should properly
have come from the other side. In the absence of any such proof
we cannot say the charge is incorrect. The presumption must
be, that such proof was made, otherwise it would have been the
duty of the Register, to have charged hire for the entire year.
The last assignment, calling in question the result of the
Master's report, need i:ot be considered, as wq have anticipated
it, in the examination of the various parts, af which it is com-
posed.
The result of this protracted examination is, that the decree jof
the Chancellor must be affirmed. According to the former de-
cision of this Court, the costs were to be paid out of the estate,
upon the presumption that the litigation was bona fide. From
some evidence found in the record, it would seem to be doubtful,
whether the guardian was not unnecessarily protracting the con-
troversy, for the purpose of vexation. If this was clearly made
out, we should not hesitate to apply the proper corrective, by tax-
ing him with the costs. We do not think however, the evidenco
sufficiently strong to warrant this course. Let the costs be paid
01^ of the estate in the hands of the guardian, except the cost3 of
this court, which will be paid by the plaintiff in error.
«t;
Siiiee the decree rendered in this cause, at the present term,
a motion has been made by the counsel for the plaintiff in error,
808 ALABAMA.
Crawford v. Whittlesey.
to modify the decree, as it regards the fees of the solicitors, re-
duced by the chancellor, upon the ground that the exception ta-
ken before the master, was not to the amount of the allowance,
but to its being a charge upon the estate ; that the decree of the
chancellor was made in vacation, and they had not therefore an
opportunity to make this explanation, or procure the necessary
proof of the reasonableness of the charge ; and this being ad-
mitted by the solicitors of the defendant in error, and they assent-
ing to the proposition, it is ordered, that the decree heretofore
made by this Court, be so far modified, that the cause be re-
manded, that a reference may be made to the master, to ascer-
tain whether the fees paid to the solicitors were reasonable, and
proper, and such as is usual in such cnses.
CRAWFORD V. WHITTLESEY. .
1. TheAvrit and declaration were at the suit of J. A. R., assignee, &c. of S.
A. W. and A. R. ; On the margin of the judgment entry the case is thus
stated, J. A. W. assignee, &c. of W. and R : Held, that if the names of
the parties had been entirely omitted on the margin of the judgment, the
writ and declaration might perhaps have been referred to, to sustain it ;
but however this may be, the error was a " clerical misprision in entering
judgment," and under the act of 1824, is amendable at the costs of the
plaintiflf in error, where a correction is first sought in an appellate
court
WrU of error to the Circuit Court of Barbour.
The writ and declaration in this case are in the name of Jacob
A. Robertson, assignee of the debts, estate and effects of Samuet
A. Whittlesey and Alexander Robertson, late partners, &c. On
the margin of the judgment entry, the case is thus stated . <' Ja-
cob A. Whittlesey, assignee of Whittlesey & Robertson v. Alex-
ander P. Crawford.** The judgment is by default, and writ of
inquiry executed.
JUNE TERM, 1845. m9
Bogan V. Martins.
Belser and Crawford, for the plaintiff in error, contended
that the judgment departed from the writ and declaration in mak-
ing another party plaintiff, and was not authorised by either.
No counsel appeared for the defendant.
COLLIER, C. J. — If the names of the parties had been omit-
ted entirely on the margin of the entry, it would perhaps have
been competent to refer to the writ and declaration to sustain it.
But be this as it may, it is perfectly clear that the designation of
the parties is a mere clerical mistake, in writing the plaintiff's
name " Jacob A. Whittlesey,'' instead of" Jacob A. Robertson."
None of our previous decisions are precisely analogous to this ;
but it seems to us that it is just such a case as is contemplated by
the fourth section of the act of 1824, " to regulate pleadings at
common law." [Clay's Dig. 322, § 54.] That section is in
these words : " No cause shall be reversed by the Supreme
Court, or any Circuit Court, for any miscalculation of interest, or,
other clerical misprision in entering judgment, so as to ^ive costs
to the plaintiff in error ; but in all such cases, the Supreme Court
may order the judgment to be amended at the costs of the plain-
tiff in error."
We feel constrained thus to order the judgment to be amend-
ed, by substituting upon the margin the name of the plaintiff in
the declaration, instead of Whittlesey.
BOGAN v. J. & S. MARTIN.
1. •' ReceiTed of J. & S. Mactin $256 97, for a negro boy named Bob, aged
about forty years, which I vairaot, &c., given under my hand and seal,
this 19 December, 1841. S. Bogaw, (SeaL)
Endorsed, " It is further understood, that if the said S. Bogan, shall well
and truly pay to the said J. & S. Martin, the said siira of $256 97, within
four months from this date, the said Bogan is to have the liberty of re-pur-
chasing the said boy Bob. It is also understood, that if the said boy Bob
808 ALABAMA.
Bogan V. Martins.
should die within the said term of four months, he dies tlie property of the
said Bogan, and tlie said Bogan in that event, is to be justly indebted to
the said J. & S. Martin, in the said sum of $256 97.
'i • ■ I i ...
J. & S. Martin.
S. Bogan."
Held, that the legal effect of this instrument, taken altogether, was, that it
was a conditional sale of the slave, with the right to re-purchase. That
the right to the slave vested immediately in J. & S. Martin, subject to be
divested by the re-payment of the purchase money in four months. That
the instrument did not, on its face, import an indebtedness from Bogan to
,1 the Martins, but if the slave died, or if Bogan sold him to a third person,
J. & S. Martin could recover in assumpsit, the amount specified as his
purchase money.
2. J. & S. Martin transferred this paper to a third person, and having after-
wards re-possessed themselves of it, might erase the indorsement, and
sue in their own names.
Error to the Circuit Court of Cherokee.
Assumpsit by the defendant against the plaintiff in error.
Upon the trial, the plaintiffs offered in evidence a writing as
follows:
" Received of J. & S. Martin, two hundred and fifty six dollars
ninety-seven cents, for a negro boy named Bob, aged about forty
years ; which I warrant, &c. Given under my hand and seal,
this 19 December, 1841.
S. Bogan," (Seal.)
Upon which was the following indorsement :
" It is further understood, that if the said S. Bogan shall well
and truly pay to the said J. & S. Martin, the said sum of two
hundred and fifty-six dollars ninety-seven cents, within four
months from this date, the said Bogan is to have the liberty of re-
purchasing the said boy Bob. It is also understood, that if the
said boy Bob should die within the said term of. four months, the
said boy dies the property of the said Bogan, and the said Bogan
in that event, is to be justly indebted to the said J. & S. Martin,
in the said sum of two hundred and fifty-six dollars ninety-seven
cents.
■' '' ■ J. & S. Martin,
S. Bogan."
The plaintife introduced testimony tending to show, that the
JUNE TERM, 1845. *»
Bogan V. Martina.
slave remained in the possession of Bogan, and that subsequent to
January, 1842, he sold him to a third person.
The Court charged the jury, that the article of agreement be-
tween the parties was evidence of indebtedness from defendant
to plaintiffs. And further, that if they believed that the negro
sold by defendant to plaintiffs, remained in the possession of the
defendant, and was by him sold, then plaintiffs were entitled to re-
cover the amount recited in the bill of sale.
The defendant moved the Court to ■ charge, that although the
defendant may have retained possession of, and sold the slave,
the plahitiffs could not recover in this action, but must sue in an
action ex delicto, which the Court refused.
Upon the bill of sale offered in evidence, was the following as-
signment :
" We assign the above bill of sale to G. W. Lawrence, and
empower him to take possession of the boy Bob, in our name, or
to collect his value."
J. & S. Martin.
This assignment, against the objection of the defendant, the
Court permitted the plaintiffs to strike out. The defendant also
moved the Court to charge the jury, that under the proof they
must find for the defendant, which the Court refused. To all
which the defendant excepted, and which he now assigns as error.
T. A. Walker, for plaintiff in error. ^
ORMOND, J. — The instrument offered in evidence, must be
considered in connection with the defeasance, and so considered,
it is a conditional sale of the slave mentioned in the bill of sale, by
Bogan to the Martins. The right to the slave vested immediate-
ly in them, subject to be divested by the re-payment of the pur-
chase money in four months. Upon proof of the death of the
slave, within the four months, or upon proof that Bogan retained
the possession, and afterwards sold the slave to a third person,
the plaintiffs could recover from him the amount specified as his
purchase money, but the instrument does not, on its face, import
an indebtedness from the defendant to the plaintiffs. The legal
intendment is, that the possession, and the title of the slave, pass-
ed to them, subject to be divested by the re-payment of the pur-
diase money, within the time limited. The Court therefore eiTed
102
810 ALABAMA.
Mooney, use, &c. v. Ivey.
ill the first charge to the jury, and this error is not relieved by the
fact, that the Court charged correctly upon the parol proof in the
cause, as it is impossible for this Court to say, upon what the jury
decided.
There can be no doubt that the action of assumpsit was pyo-
per ; the plaintiffs have the right to waive the tort, and sue for
money had and received to their use.
It is equally clear, that having become re-possessed of the pa-
per they had transferred, they could strike out the assignment.
For the error of the Court in the first charge, the judgment must
be reversed, find the cause remanded.
■ MOONEY, USE, &c. V. IVEY. .i-r
1. After a cause commenced before a justice of the peace haa been removed
by appeal or certiorari to a higher Court, the parties cannot be changed,
unless death or some other cause has supervened.
2. Although the amount in controversy is less than fifty dollars, and the suit
was commenced before a justice of the peace, yet the plaintiff who sues few
the use of another, cannot recover for work and labor done for the benefi-
cial plaintiff, unless he stood in such a relation that the right to compensa-
tion inured to him.
Writ of Error to the County Court of Montgomery.
This was a suit instituted before a justice of the peace. The
warrant was at the suit of Egbert Mooney for the use of John
Mooney, and the defendant failing to appear a judgment was
rendered against him for #27 50, besides costs. Upon the peti-
tipn of the defendant the cause was removed to the County Court
by certiorari. Thereupon a statement of the demand was filed
in the name of "John Mooney, by his next friend, Egbert Moo-
ney ;" but the defendant refused to plead to the same, and moved
the Court to set it aside and cause the plaintiff to file another,
corresponding as it respected the parties, with the warrant. The
JUNE TERM, 1845. 81 i
Gravea v. Cooper.
motion was granted, and thereupon the plaintiff excepted. An-
other statement being accordingly made, and an issue thereon
submitted to a jury, the plaintiff offered to prove that the defend-
ant was indebted to John ]\Jooney for work and labor done, but
the Court would not permit such evidence to go to the jury under
the pleadings, and thereupon the plaintiff excepted. A verdict
was returned for the defendant, and judgment rendered accord-
ingly-
J. E. Beeser, for the plaintiff in error.
J. A. Elmore, for the defendant.
COLLIER, C. J. — Taylor v. Acre, at this term, in conformity
with previous decisions, determines that in suits commenced be-
fore justices of the peace, the appellate Court will not permit the
parties to be changed, unless death or some other cause has su-
pervened, which makes such change necessary. Here it is con-
ceded that both the nominal and beneficial plaintiff are living, and
it is not pretended that their interests have been affected by any
thing occurring since the warrant issued.
If work and labor were done by the party for whose use the
«uit was brought, the nominal plaintiff could not recover the price
of it, unless he stood in such a relation that the right to compen-
sation inured to him. The record does not show any thing from
which such an inference can be deduced, and there can be no
such legal intendment. The evidence then was properly exclud-
ed, and the judgment is consequently affirmed.
GRAVES V. COOPER.
1. It is irregular to permit the defendant whose debtor is summoned as a
garnishee, to contest the garnishee's answer, unless it is done at tlie tenn
when the answer is filed, or unless an order is then made for that purj^ose.
58. The proper course of practice in such cases is, for the defendant to deny
S12 ALABAMA/ =*
Graves v. Cooper.
the correctness of the answer by oath, and to file a suggestion -of the iian
lure of the garnishee's indebtedness, as in a declaration, to which the gax-
lufihee may plead. The judgment, if against the garnishee, is one of con-
demnation to pay the plaintiff's demand.
. Writ of Error to the Circuit Court of Dallas.
This proceeding is by Cooper, as a judgment creditor of the
Selma and Tennessee Rail Road Company by garnishee pro-
cess against Graves as a debtor stockholder of the same. The
garnishment was issued 14th February, 1842, returnable to ihe
spring term of that year. Upon the return of the process.
Graves appeared and filed his answer in writing, in which he sets
out at length the proceedings preparatory to the organization of
theCoaipany, his subscription for a hundred shares of the stock,
under the belief and impression produced by the commissioners,
that he would be permitted to relinquish it by forfeiting what he
should pay thereon. Afterwards he relinquished .one half of
his stock, and reduced it from 100 to 50 shares. He admits tlie
directors have called for instalments, amounting iu all to 17i peK
cent, of which he has paid 10 per cent, but refused to pay. the
remainder, offering to relinquish his stock. If, under the circuna?
stances stated, he is indebted to. the company any thing, then he
admits a debt of 8375, that being 7i per cent, on 50 shares.
No further proceedings on Graves' answer were taken at the
spring term, 1842; but at the fall term, 1843, as the judgment
entry recites, the parties came by their attornies, and the said
Graves having at a former term of this Court filed his answer, to
wit: on the 14th day of May, 1842, by consent of the plaintiff;
which answer is ordered to be filed with the records of the Court
and the same taken as a part of the entry on the minutes. And
thereupon came the said Selma and Tennessee Rail Road Com-
pany, and suggest that the said garnishee is indebted to said Com-
pany as a stockholder therein, tor the calls mentioned in his an-
swer and at this time in a greater amount, to wit: the sum of
$1,687 45, than he is willing to admit on oath, prays the Court
that it may be allowed to show the same by competent testimony,
which being granted by the Court, the garnishee declines to
make any plea in reply to said suggestion ; and thereupon came
a jury, to wit: &c., who being duly elected, tried and sworn to
JUNE TERM, 1845. 813
Graves v. Cooper.
inquire of tiie trije indebtednes of the said garnishee aforesaid, up-
on their oath do say, &<i*'returning an assessment of $1,687 45,
for which judgment was given by the Court.
At the trial, it was in evidenc^that David Cooper, the deceas-
ed partner of the plaintiff' was present at the meeting of the board
of directors of the Rail Road Company, when the board passed
a certain resolution referred to in the answer of the garnishee,
whereby the subscribers to the capital stock were allowed the
privilege of relinquishing one half of their said stock; there was
no evidence tending to show that the garnishee had, or had. not,
relinquished his stock, as was asserted in his answer. The de-
fendant asked tlie Court to charge the jury, that if, from the evi-
dence, they believed the deceased partner of the plaintiff was pre-
sent at the meeting of the bdard which passed the resolution of
relinquishment, and sanctioned the same, they should find the de-
fendant to be no farther Indebted than was admitted by his an-
swer. This was refused. The Court charged the jury that said
resolution of relinquishment was not binding either upon the plain-
tiff or upon the Kail Road Company. To the charge and refusal
to charge the defendant excepted.
He now assigns as error, that the Court erred — •
1. In refusing the charge asked.
2. In the charge given.
3. In permitting the Rail Road Company to conjtest his an-
swer at the term after it was made.
4. In rendering judgment for the calls due on the wliole stock
subscribed, when the defendant was liable only for one halt
Elmore, for the plaintiff in error, insisted —
1. That it was competent for the' Company to relieve the de-
fendant, by resolution, from the contract for 100 shares, and to re-
duce it to 50, [Charter, §§ 1, 5, 6, 15 and 17, Acts 1830, p. 37 ;
Selma and T, Rail Road Co. v. Tipton, 5 Ala. Rep. 808. j
2. The answer of the garnishee was made at the spring term,
1842, but not contested until the fall term, 1843, It is true a
judgment may be renderai upon an answer of a garnishee after
an irregular continuance over without notice, but that is consid-
ered as a judgment nunc pro tunc pronounced on the facts as
ascertained ; but here there was no authority to contest the an-
swer when it was contested. The failure to contest ^e answer
814 ALABAMA,
Graves v. Cooper.
at the term when made, is not a waiver of the riglit, for the sta-
tute contemplates a denial at the term when the answer is made.
[Dig. GO, §§24, 25.]
3. The defendant did not ^aive any right acquired by the
neglect to contest the answer, on the contrary he refused to an-
swer to the suggestion of the Company,or plead to it in any man-
Hcr. The mere employment of, or appearance by, an attorney,
when forced to proceed, cannot affect the defendant. [Sheppard
V. Buford, 7 Ala. Rep. 90.]
Edwards, for the defendants in error, made the following
points :
1. The charge asked for may be considered as entirely abstract,
for there is no evidence shown to warrant it.
2. The directors of a stock company have no authority to re-
duce the capital stock, or exempt the subscribers horn liability
for calls. [Angel & Ames on Corp. 243, 239,476, 478; Digest,
260, §§ 8, 9 ; 0 Ala. Rep. 74 J.]
3. The Court properly allowed the Company to contest the
answer of the garnishee. [Dig. 60,§ 24 ; 6 Ala. Rep. 705J
GOLDTHWAITE, J.— 1. A preliminary question is raised
in this case, whether the Court could allow the defejidant in exe-
cution to contest the indebtedness of the garnishee, to a greater
amount than admitted by his answer at a term subsequent to that
when the answer was received and filed. At first view, we
were inclined to suppose this point must be considered as waiv-
ed, from the circumstance that the garnishee appeared by attor-
ney ; but we conclude this appearance must be referred to the
matter which he was bound to appear to, and not to an irregular
proceeding, in which he refused to join. It was held in Robin-
son v. Starr, (3 Stew. 90,) that a garnishee was not necessarily
discharged by the omission to take a judgment ni. si. at the re-
turn tei*m, no judgment having then been rendered against the de-
fendant in attachment. And in Gaines v. Beirne, (3 Ala. Rep.
114,) a judgment against a garnishee at a subsequent term, was
sustained upon his answer made and filed at a former term. In
Leigh v. Smith, [5 lb. 583,] a judgment entered nunc pro tunc
against the garnishee, several terms after his answer, was held to
be regular. These decisions fully establish, that whenever a gar-
nishee submits to answer, or when the suit is not terminated by
JUNE TERM, 1845. 816
Graves v. Cooper.
a judgment against the defendant in attachment, the garnisliee
continues before the Court for the purpose of receiving the judg-
ment upon his answer. But this we conceive is materially dif-
ferent from considering him as before the Court for the purpose
of contesting his answer, whetlier that is done by the plaintiff or
the defendant in the attachment.
In the present case the garnishee appeared, and with the con-
sent of the plaintiff in the proceedings, filed his answer in writing,
at the Spring term, 1842, and no order was then taken for the al-
lowance oCfuvther time to contest it, either on the part of the cre-
ditor or of the debtor. At the Fall term, 1843, the debtor corpo-
ration was allowed to suggest that the garnishee was indebted
to it m a larger sum tha6 he was willing to admit on oath, and it
was prayed they might be permitted to show the same by com-
petent testimony. The garnishee declined to make any plea or
reply, and no inference can be drawn that he assented la this pro-
ceeding, from the fact that he was represented by counsel before
the Court ; because he was there for the purpose, if necessary,
of receiving a judgment on his answer.
For this reason we consider the judgment entirely erroneous,
and decline to enter upon (he consideration of the more important
questions which grew out of the charge of the Court.
2. As the practice is quite unsettled on the peculiar statute un-
der which this proceeding was attempted, it is proper to state
how it should be. The difficulty of giving the proper ctrect to
this statute was felt in Cameron v. Stollcnwerck, [G Ala. Rep,
704,] but we then declined its consideration.
The 24th sectionof the general attachment law provides, that
the defendant may, in all cases, shew, by competent testimony,
that a garnishee is indebted to him ia a greater amount than he
is willing to admit on oath, but there is no mode pointed out by
which the cause is to proceed, when the defendant chooses to
avail himself of this privilege. We think other partis of the sta-
tute furnish analogies which must govern the proceedings in this.
Thus, under the 25th section, the same privilege is given to the
plaintiff, but he is required to make oath that he believes thb an-
swer' to be incorrect ; and upon making this oath an issue is to be
formed and tried as in other cases. [Clay's Dig. § 24, 55.] The
40th section of the same act provides, in tiie same defqctive man-
ner, for a contest between the creditor and tlie transferee of the
816 ALABAMA.
Strange, et al. v. Keenin, et al.
debt owed in the first instance to the debtor, when the garnishee
assumes that he has been notified of its transfer. And in Good-
win V. Brooks, (6 Ala. Rep. 836.) we considered that it was the
business of the plaintiff to proceed against the party, after appear-
ance, by an allegation that the transfer or assignment to him was
invalid. This case, and the practice which prevails under other
sections of the act, seem to require that the defendant in attach-
ment, when he seeks to controvert the answer, should do it in
the same manner as the plaintiff, by filing an oath that he believes
the answer to be i«correct. Beyond this, as the mode and man-
ner of the garnishee's indebtedness must beknown to his creditor,
the suggestion of this indebtedness should be as ample as a decla-
ration in ordinary cases, and would be controverted by plea of
the garnishee. The issue, thus formed, is to be tried as in other
suits, but the judgment, if for the creditor, will be of condemna-
tion to the plaintiff in the attachment. As to costs, &c. we pur-
posely omit to construe the statute until some case arises upon it.
As there has been no attempt at conformity with what we con-
sider the proper practice, the judgment must be reversed, and
the cause remanded, that such judgment may be rendered on the
answer of the garnishee as is proper.
lieversed and remanded.
-'. STRANGE, ET AL. v. KEENAN, ET AI^
1., Where land is sold by order of the Orphans' Court, to make more equal
distribution among the heirs, and security i« not required to be taken for
the purchase money, the heirs have an «quitable lieu upon the land for the
purchase money, which may be enforced either against the original pur-
chaser, or against a purchaser from him, with notice of the facts.
2. In such a caJse, where the administratrix was the purchaser, the heirs may
proceed to enforce their lien against a second purchaser witli notice, and
cannot be required to resort in the first instance to the sureties of the ad-
ministratrix on her official bond, she having paid no part of the purchase
money, and being insolvent.
JUNE TERM, 1845. 817
Strange, et al. v. Keenan, et al.
Error to the Chancery Court of Macon.
The bill is filed by the infant and adult heirs at law, of Wei-
born D. Westmoreland, and charges that administration was
granted of his estate by the Orphans' Court of Macon to one Sea-
born J. Westmoreland, who now resides in parts unknown, and
to Elizabeth Westmoreland, who has since intermarried with one
Patrick Cousins. That the intestate died possessed of certain
real estate, and that on the 1st Monday in March, 1841, the Or-
phans' Court of Macon county, upon the petition of the said Eliz-
abeth, as administratrix, and in order to make an equal and feir
division amongst the heirs of the intestate, directed the said real
estate to be sold at public auction, and appointed commissioners
to carry the order into effect, by a sale of the lands. That the
commissioners exposed the land to sale on the 3d July, of the
same year, on -a credit until the 1st January after, when the
lands were sold to the administratrix, who was the highest and
best bidder for the sum of six thousand dollars. That the com-
missioners received from her, her individual note for the purcheBC
money, without personal, or other security, and reported their
action on the subject to the Orphans' Court, by which it was con-
firmed on the 3d day of August succeeding, and they directed to
make title to the administratrix to the land, which was accord-
ingly done, by their deed, bearing date 3d July, 1841.
The bill further charges, that the note for six thousand dollars
is still due, and unpaid, and that the administratrix and her hus-
band are both insolvent. The bill further charges, that on the
27th January, 1842, Cousins and his wife, by their deed of that
date, conveyed to the defendant, Keenan, the land so purchased,
for the consideration, as expressed in the deed, of seven thousand
dollars, but that the true consideration was a debt due fi-om the
said Elizabeth to the said Keenan, and that at the time of his pre-
tended purchase, and execution of the deed, he knew that the
purchase money was due and unpaid.
The prayer of the bill is, that the equitable lien of the heirs at
law for the purchase money unpaid, be enforced. Cousins and
wife, and Keenan were made defendants, but omitted to answer
the bill, and a decree pro confesso was taken against them. The
pi'oof fully establishes the allegations of the biJl. Upon the hear-
103 . *
818 ALABAMA.
Strange, et al. v. Keenan, et al.
ing, the Chancellor dismissed the bill for want of equity, from
which this writ is prosecuted, and which is the error now as-
signed.
Williams, McLester "and Dougherty, for plaintiffs in error,
cited 2 Story's Eq. 462, 469 ; 15 Vesey, 328.
Hayne, contra.
ORMOND, J. — The general principle is undoubted, that a
vendor of land, who does not take security for the purchase mo-
ney, has a lien upon the land itself for its payment, which may
be enforced either against the vendee, or a purchaser from him
with notice, unless it can be inferred from the circumstances of
the case, that credit was givjgn exclusively to the person, and the
land was not relied on as a fund to reimburse the- vendor. In
Macreth v. Simmons, 15 Vesey, 329, Lord Eldon held, that even
where security was given, it "depended upon upon the circum-
stances of each case, whether the Court was to infer that the lien
was intended to be reserved, or that credit was given, and ex-
clusively given, to the person from whom the other security was
taken."
This question was fully considered by this Court, in Foster v.
The Athenaeum, 3 Ala. Rep. 302, and there held, that the vendor
of land has a lien in equity,for the unpaid purchase money, where
he has not taken personal security for its payment, or a distinct
collateral security, as a pledge or mortgage. In this case no se-
curity whatever was taken for the payment of the purchase mo-
ney, and the defendant, Keenan, the second vendee, purchased
with full knowledge of the fact. The only question therefore in
the cause is, whether the rule applies to sales made by order of
the Orphans' Court.
By our statute law, the Judge of the Orphans' Cour, upon the
petition of the administrator, and for the causes assigned in the
statute, may order a sale of the land of a deceased person, and is
invested with a discretion to direct the land to be sold, either "for
money, or on credit, as may be most just and equitable." The
object of the sale in this instance, being to make more equal dis-
tribution amongst the heirs, the Court directed the sale to be
made on a credit, and did not require security to be taken for
JUNE TERM. 1845. 8i9
Strange, et al. v. Keenan, et al.
the- payment of the purchase money. We can perceive no rea-
son why sales of tliis description should not be subject to the law-
applicable to all sales of real estate. If the Judge of the Or-
phans' Court, acting for the heirs, thinks proper to order a sale
on credit, and does not require security to be given for the pur-
chase money, the land must be considered as the primary fund
for its payment.
It was contended, that the statute contemplated that in these
judicial sales by the Orphans' Court, the title should pass to the
purchaser, untramelled by this implied lien. It is difficult to
suppose, that in sales of this description, made without the con-
sent of those interested, and in which in^fants are generally con-
cerned, a right is taken away which is secured to adults acting
for themselves ; such a construction of the law would be most
unreasonable. The only security which the Judge of the Or-
phans' Court is required to take in such cases, is, a bond from
the administrator, with security for the faithful application of the
money when collected, which it is obvious, would afford no secu-
rity whatever, if the money could not be collected from the pur-
chaser of the land. The same remark applies to the sureties of
the administrator in his official bond ; they do not become res-
ponsible until the money comes to the hands of the administrator,
or is lost by his negligence, and therefore could not have been
contemplated as a security for the payment of the purchase mo-
ney.
It is further urged, that as the administratrix became herself
the purchaser, in legal estimation the money is in her hands, sub-
ject to distribution, as was held by this Court in Childress v. Chil-
dress, [3 Ala. 752.] It is doubtless true, that the heirs might, if
they thought proper, elect to consider the money as in her hnnds,
as she cannot sue herself ; but it is equally clear, they cannot be
compelled to make such election, when, as in this case, the ad-
ministratrix has not paid any part of the purchase money, and
being insolvent, cannot be compelled to pay it. If the land had
been retained by the administratrix, it can admit of no doubt, that
the heirs by a decree in chancery, could have sold it for the pay-
ment of the purchase money, and the defendant, Keenan, having
purchased with notice of all the facts, can be in no better condi-
tion ; ho is charged with notice of this trust, and took the title
subject to it.
820 ALABAMA.
Strawbridge v. Spann.
The concession that the heirs might elect to consider the pur-
chase money paid, and after a decree in the Orphans' Court
against the administratrix, proceed against the sureties on her
official bond, cannot avail the defendant, Keenan. He cannot
insist, they should forego the enforcement of a clear right against
him, because they have another means of reimbursement, from
another source. For aught this Court can know, that would
prove unavailing, as the sureties to the official bond of the admin-
istratrix may not be able to respond. In every aspect in which
we have been able to consider this case, we think that the
heirs have a lien for the purchase money unpaid, upon the land
in the hands of Keenan, he having purchased with notice that it
"Cvas unpaid ; it is therefore unnecessary to consider, whether he
was a bona fide purchaser or not.
The defendants declined answering the bill, and the cause was
heard on the bill, decree ^ro confesso, and proof. The cause
was therefore ripe for a hearing, and we can perceive no reason
whatever for remanding it, but must proceed to render such de-
cree'on the merits, as the Court below should have rendered.
Let the decree of the Chancellor dismissing the bill be reversed,
and a decree be here rendered, declaring, that the heirs have a
lien on the land for the purchase money unpaid, and that the
cause be remanded for a reference to the Master, to ascertain
the amount of the purchase money still due.
STRAWBRIDGE v. SPANN.
Where a witness upon a preliminary examination disavows all interest in
the result of the cause, and tiie facts disclosed by him are consistent with
such disavowal, it is the duty of the Court to permit his testimony to go to
the jury.
It is competent to inquire whether aii account against a party was not
JUNE TERM, 1845. 821
Strawbridgc v. Spann.
charged to him by his directions, and whether it is correct, and it is allowa-
ble for the witness to answer that it was copied from the defendant's books,
and believed to be correct.
3. Where a witness testifies as to work and labor done, and money received,
for which the plaintiff is seeking to recover, it is competent to inquire whetli-
er other work had been done, or money received. Such a question, though
it directs the attention of the witness that he may state the facts fully, can-
not be said to be leading.
4. Where evidence is admitted which is merely unnecessary, but cannot pre-
judice the opposite party, or mislead the jury, it furnishes no cause for tlie
reversal of the judgment.
5. Where the acts of the agent bind the principal, his representations and
declarations respecting tlie subject matter, wDl also bind him, if made at
the same time, and constitute part of the res gestce; but Quere'? Is it compe-
tent to establish the fact of agency by tlie declarations of the supposed
agent.
6. Where ^ witness denied that in a certain transaction which was drawn in
question, he acted as the plaintiff's agent, it was held competen!; to prove,
in order to impair the effect of his testimony, that he had made conti-adic-
tory statements upon other occasions.
7. Where a party is permitted to give incompetent testimony to support an
account, and afterwards becoming satisfied that the evidence is insufficient
or inadmissible, withdraws the account, the error in admitting the assist-
ant proof is cured.
, Writ of Error to the County Court of Dallas. *
This was an action of assumpsit at the suit of the defendant
in error, for goods wares and merchandize, sold and delivered,
and upon an account stated, &c. The cause was tried upon is-
sues on the pleas of non-assum])sit, set off, payment, and fraud ; a
verdict wns returned for the plaintiff and judgment rendered ac-
cordingly. On the trial the defendant excepted to the ruling of
the Court. It is shown by the bill of exceptions that the plaintiff
offered to read to the jury the deposition of Jesse Israel, that the
defendant objected to its admission on the ground of the witnes-
ses interest, and being overruled in this, he then objected to seve-
ral of the interrogatories and answers thereto ; all of wliich ob-
jections were overruled. The witness testified that he hauled
with the plaintiff's team for the defendant, and that defendant re-
ceived money from other persons for hauling done with the same
team by the witness. After declaring that he had no interest in
822 ALABAMA.
Strawbridge v. Spam;.
the event of the suit, the witness stated that he worked for the
plaintiff, without any special contract at the time he entered into
an agreement with the defendant.
Witness stated that he acted as the plaintiff's agent in driving
his team, and was then asked whether an account produced was
not made up of items charged to the defendant by his directions,
and if so, whether it was not correct ; to which he answered that
the account, or the greater part of it, was taken from the defend-
ant's books, and he believed the charges were correct. He fur-
theranswered,that the team in his possession belonging to the plain-
tiff had hauled for several persons on the defendant's account,
was permitted to answer for whom it next hauled, and what ad-
ditional hauling was done by it: Further, he was permitted -to
state whether any money, and how much more of the earnings of
the plaintiff's wagon were paid to the defendant beyond what the
witness had previously mentioned. The facts stated in this par-
agraph, and the questions which elicited them, were objected to
by the defendant.
Being cross-examined, the witness stated that he bought of the
defendant a wagon and team at an agreed price of six hundred
dollars, and afterwards sold him the same team and another
wagon for four hundred dollars, leaving two hundred dollars due
to him. Witness "traded for the wagon for the plaintiff," without
being authorized by him to do so. He had a general authority
to trade for the plaintiff as far as was necessary to keep up his
wagon and team ; but stated that it was not necessary to pur-
chase the wagon of the defendant "in order to keep up the team
of the plaintiff."
Witness said Spann was not pleased with his purchase of the
wagon when it was carried to his house, but some time afterwards
claimed it, and has it in possession.
Upon the re-examination the witness was asked who drove
*« the wagon" he obtained from the defendant, and answered that
the negro boy he hired of the defendant drove it the first trip,
and that Mr. Newsom drove it afterwards. This question and
answer were both objected to. Witness stated that the plaintiff's
wagon was " a tolerably good one," when he took it from his, the
plaintiff's house, but did not wear well, and broke down some
three or four weeks afterwards, though previous to the purchase
of the defendant. Further, he bought the wagon and team on
JUNE TERM, 1845. 823
Strawbridge v. Spann.
his own account, and in his own right, and was to pay for them
when he earned the money "by their employmeijt. Witness told
the defendant that he did not wish any of the money of the plain-
tiff to be applied to pay him, as he expected the latter wanted
all the earnings of his own team.
The plaintiff had no interest in the earnings of the wagon and
team which the witness purchased of the defendant, while the
defendant drove the team. Witness's object in retaining the
wagon he purchased of the defendant, when he sold the latter
the team, was, that he might have a better one than the plaintiff
furnished. The sale of the team, and plaintiff's wagon was made
on the witness's responsibility, and upon his own account, to en-
able him to extinguish the greater p^rt of the debt he had con-
tracted with the defendant, and which he could not otherwise
pay. He was bound to replace the wagon which he received of
the plaintiff, and gave him in lieu thereof the one he purchased of
the defendant. If any thing was due to the defendant for the
wagon; witness owed it.
The defendant then introduced a witness, and asked him if he
was present when Israel made the purchase of the wagon and
team of the defendant, and the re-sale of the team and another
wagon to the defendant, and whether Israel then represented
himself as purchasing and selling upon his own account, or for
the plaintiff. But the Court decided that the declarations made
by Israel as to who was the purchaser, or on whose account the
wagon was purchased, were inadmissible ; and consequently re-
fused to permit the witness to answer the question.
In the course of the examination of the plaintiff's witness, he
was asked whether an account produced, and made out under his
direction and inspection, was not correct ; to which he answered
that he could not say, but stated it was drawn off under his in-
spection. Thereupon the plaintiff proposed to withdraw it, leave
was granted for that purpose; and thereupon defendant eX"
cepted.
R. L. DowNMAN, for the phintiff in error. — The account, to the*
correctness of which the plaintiff's witness testified, was not iir
the witness' hand-writing, and he should not have been allowed
to refresh his memory by inspecting it ; and though this account
was afterwards withdrawn, the error was" not thereby repaired.
824 ALABAMA.
Strawbridgo v. Spaim.
[2 Phil. Ev. C & H's Notes, 757 ; 3 Id. 1239.] Besides this, the
witness was incompetent from interest, because he was interested
in the result of the suit.
The declarations of Israel, conceding that he was only the
plaintiff's agent, were competent evidence to charge his princi-
pal. [1 Phil.Ev. 100, 101.]
C. G. Edwards, for the defendant in error.— The question is,
whether the two hundred dollars which are due the defendant
upon the sale and purchase of a wagon and team, is a debt
chargeable upon the plaintiff, so as to make it a set-off in this ac-
tion. The evidence shows that Israel made the several contracts
with the defendant out of which the indebtedness arose, and that
he alone is personally responsible. Witness denied that he acted
in the business as the plaintiff's agent; without evidence tending
to show such a connection, the declarations of Israel were pro-
perly excluded. These declarations standing alone and unassist-
ed, proved nothing material — indeed, they were irrelevant. [1.
Ala. Rep. N. S. 160.] .
There is no just pretence for saying that Israel had an-interest
in the result of the cause, and that therefore his depositfon should
have been rejected. The witness denied it repeatedly, and the
facts disclosed by him show that his denial is consistent with
truth.
COLLIER, C. J. — The witness, both upon the prchminary
examination, and throughout his entire deposition, disavowed all
interest in the result of the suit ; the facts disclosed oy him do
not contradict his disavowal ; consequently, the decision of the
Court, in favor of his competency, we think was correct.
It was clearly competent to inquire whether an account shown
to the witness was not charged to the defendant by the direc-
tions of the latter, and if so, whether it was not correct. He
may from memory, without reference to any written memoran-
da, have been prepared to vouch its correctness ; and even have
stated each distinct item without looking into the account. His
answer was equally unexceptionable, viz : that the account was
copied from the defendant's books, and that he believed it to bb
correct. The fact that the charges were made in the defendant's
book of accounts, should be regarded as presumptive evidence of
JUNE TERM, 1845. 8S6
Strawbridge v. Spann.
their justness as against iiim, and an expression of the witness'
belief that this presumption was well founded, even if predicated
of the premises, without any knowledge possessed by him, was
certainly allowable ; it could do no harm, as it was a mere af-
firmation of what was a legal inference, in the absence of oppos-
ing proof.
The additional question proposed, viz : whether any more,
and what hauling was done by plaintiff's team, and whether any,
and how much more of the earnings of it, were paid to the de-
fendant than the witness had already stated, we think was unob-
jectionable. The facts sought to be elicited were pi-ima facie
admissible, and the question cannot be said to be leading. It
does not affn'm the existence'of a faet, but merely directs the at-
tention of the witness, that he may slate the truth of the case fully,
rather than suggest to him what answer he is desired to make.
[Grcenl. Ev. 481.]
We are at a loss to conceive how the defendant could be pre-
judiced by the witness stating who was the teamster. It may
have been a fact that could not materially aid the deliberations
of the jury upon the matters litigated ; but it was at least harm-
less in the aspect in which the case is presented, and does not fur-
nish a warrant for the reversal of the judgment.
It is laid down generally, that whatever an agent does in the
lawful prosecution of the business intrusted to him by his princi-
pal, is the act of the latter. And " where the acts of the agent
will bind the principal, there his representations, declarations, and
admissions respecting the subject matter, will also bind him, if
made at the same time, and constituting part of the res gestae.'''
[1 Story on Ag. 124 to 129.] But the admission or declaration
of an agent binds only when it is made during the continuance of
the agency, in regard to a transaction then depending, et dum
fervct opus. It is because it is a verbal act, and part of the res
gestae, that it is admissible at all. [Greenl. Ev. 125 to 134 ; 1
Phil. Ev. (ed. of 1839,) 99, 100, and the cases cited by these au-
thors.] The fact of agency, it is said, must be first established,
before the declarations of a supposed agent can be received. For
this purpose the admissions of the principal are evidence against
himself; or the fact may be proved directly by the agent. [2
Phil. Ev. C. & H's Notes, 188, 189. J In Langhorn v, Allnutt,
4 Taunt. Rep. 519, Gibbs, Justice, said, " When it is proved that
104
820 ALABAMA.
Stiuwbridge v. Spann.
A. is agent of B., whatever A. does, or says, or writes, in the
making of a contract as agent of B., is admissible in evidence, be-
cause it is part of the contract which he makes for B., and there-
fore binds B, ; but it is not admissible as his account of what
passes." In Johnson v. Ward, 6 Esp. Rep. 48, which was an
action on a policy of insurance, the affidavit of a person, stating
that he subscribed the policy on behalf of the defendant, (which
affidavit the defendant himself had previously used, on a motion
to put offthe trial,) was, under the particular circumstances, pro-
perly admitted as proof of agency. The defendant having used
the affidavit for such purpose, must be considered as having
made and adopted its contents. But the single circumstance,
that the affidavit purports toliavebeen made by a person as agent,
would not be sufficient proof of his being invested with that au-
thority.
In Scott V. Crane, 1 Conn. Rep. 255, the question directly
arose whether, and under what circumstances, the acts or decla-
rations of an agent are admissible. The Court said, " it is clear
that the doings or concessions of an agent, when acting for the
principal, are binding on the' principal ; but to let in the proof of
them, it is necessary that the agency should be first proved.
The defendant having offered no proof of the agency, it was pro-
per for the Court to refuse evidence of the acts done by him."
To the same effect are Lessee of Plumsted, et al. v. Rudebagh, 1
Yeates' Rep. 502 ; Lessee of James v. Stookey, et aL 1 Wash,
C. C. Rep. 330.
We have been thus particular in stating the law in respect to
the admissibility of the declarations of an agent ; but as it is un-
necessary, we will not conclude ourselves by deciding that the
fact of agency cannot be established by the acts or declarations
of the agent ; that question will be left for future adjudication.
The plaintiff's witness explicitly denied that in purchasing the
wagon and team from the defendant, and in the sale made to
him be acted as the plaintiff's agent. Now although his acts and
declarations might not be admissible to prove the fact of agency,
yet they are competent evidence to show that he had made con-
tradictory statements, and thus impair or destroy the effect of his
testimony upon this point.
It was certainly allowable for the plaintiff to withdraw the ac-
count which he offered, when he ascertained he could not estab-
JANUARY TERM, 1846. 827
McGehee v. PowelL
lish it by satisfactory proof; and the account being withdrawn,
the assistant proof was no longer before the jury ; this was all we
understand he proposed to do. But the refusal of the Court to
permit the defendant to prove what the plaintiff's witness said as
to his agency, is an error ; and for this, the judgment is reversed,
and the cause remanded.
REPORTS
or
CASES ARGUED AND DETERMINED,
JANUARY TERM, 1846,
McGEHEE V. POWELL.
1. Notes made by a trading company, and for which the plaintiff's intestate
might have been liable as a partner, are not admissible to the jury under
the pleas of non-assumpsit, want of, or failure of consideration.
2. There can, under the statute, be no limited partnership for the purpose of
banking, or making insurance, and an association formed m 1838, for the
828 A'LABAMA. ''-^ '
Mc'Gehee v. Powell.
purpose of issuing bills to circulate as money, was not prohibited by the
statute from doing the act The only consequence j-esul ting from the act
is to make all the partners alike responsible.
3. Although the issuance of bills of a less denomination than three dollars
was ^x)hibited, at the time when a contract for the loan of the bills of an
unchartered association was made, yet the mere fact tliat bills for less
than three dollars were received, does not avoid the contract
4. When the defendant borrowed bills from an unchartered association,
which he endeavored to show originated in a conspiracy to cheat the pub-
lic by getting its bills in circulation without the means or the intention to
redeem them, his request for the Court to instruct the jury, that if he was a
party to the conspiracy, by engaging to aid in the circulation of the bills,
this would avoid the contract under which the bills were borrowed, will be
considered as merely abstract, and therefore pioperly refused, when there
is no evidence before the jury to connect him with the conspiracy.
Writ of error to the Circuit Court of Benton.
Assumpsit by Powell,® the administrator.of Isaac Lyon, against
McGehee. The declaration contains four counts to the following
effect, to wit: the first is against him as the maker of a note for
$1,000, dated 19th November, 1838, payable to Lyon or order,
four months after date, negotiable and payable at the office, of
the Wctumpka Trading Company. The only averment in this
count is, that the time of payment has passed. : The second de-
scribes the same as payable in notes of the Wetumpka Trading
Company, or State Bank notes, and contains the averment that
the defendant failed to pay according to either condition, at the
maturity of the note. There is the further averment that the
notes of the State Bank, and notes of the Wetumpka Trading
Company, to the sum of $1,000 with interest, were worth, at the
maturity of the note, $1,026 66, and the count concludes with a
super se assumpsit for that sum. The third count is unnecessa-
ry to be stated, as the plaintiff entered a nolle proseque on that
previous to the trial. The fourth was demurred to and the de-
murrer sustained, therefore its statement here is also unnecessa-
ry. The fifth is a general one, including all the common counts
for $1,026 66, due from the defendant to the plaintiff's intes-
tate. , .^„ • ;... \ ^....f; „> ,,. -I. ^ ,, ,;jj-. . ,-. - . '»j. ■ » ,•, . ,^.-.
The defendant demurred to each count severally, and upon his
demurrers being overruled to _those which are above set^Qut in
JANUARY TERM, 184G. 829
McGehee v. Powell.
substance, then pleaded — 1. Non-assumpsit, 2. That he exe-
cuted a certain note, which he sets out in his plea, and which is
the same as that described in the second count of the declara-
tion, and then avers that the note is the only one he ever executed
to Lyon in any character whatever. He further avers that this note
was executed to Lyon in consideration alone of the notes of a com-
pany of individuals, to wit : the said Lyon, Erastus B. Smith, John
D. Champlin, who were the general partners of the said company,
and Thomas E. Stone, Erastus S. Smith, Edmund Lyon, and
Henry Morgan, who were special partners ; the said company
calling themselves and commonly known as the Wetumpka
Trading Company, alias, the Wetumpka Trading Company of
the State of Alabama. He further averre«i, that the notes of said
company were negotiated and delivered to him by the said Lyon,
as the President of the said Company, with the intention that the
same should circulate as money, and the same were then so emit-
ted to the defendant, in the State of Alabama. He further avers,
that his note was executed to Lyon as the President of the Com-
pany, and not to him in his individual character, nor for his indi-
vidual benefit. 3. Tender of the full sum in the notes of the We-
tumpka Trading Company. 4. The failure of consideration. 5.
Want of consideration. G, Payment into Court of the amount in
notes of the Wetumpka Trading Company. The second plea
was verified by affidavit, and all the others are pleaded in short,
that is, by stating the names only of the pleas. The Court sus-
tained a demurrer to the second plea, and struck out the pleas of
tender and payment into Court.
At the trial, on issues formed on the other pleas, the plaintiff
produced and read in evidence, the note described in his second
count, and showed the value of Alabama Bank notes was two
per cent, less than specie, at the maturity of the note of the de-
fendant. He also proved that a small amount of the bills of the
Wetumpka Trading Company were passed off in payment for
goods at about 10 per cent, higher than the same goods could
have been purchased for other money, and this took place be-
tween the 1st February and the 1st March, 1839.
The defendant tFien offered evidence, the substance of which
may be thus stated, to wit :
The note of the defendant was made in consideration of $1,000
in bills of the Wetumpka Trading Company, loaned to him by
830 ALABAMA.
McGehee v. Powell.
the plaintiff's intestate, acting for and in behalf of the company,
for the purpose, and with the intention on the part of Lyon, to
emit the bills for circulation as money, within this State. The
company went into operation in September, 1838, and transacted
what is usually termed banking business, that is, they loaned their
own bills, discounted drafts, purchased cotton and emitted engrav-
ed promissory notes or bills for circulation as money. During
the months of November and December, 1838, the company re-
deemed their bills with specie, and then circulated as well as
specie for a short time, but sometime about the last of February,
or 1st of March, 1839, the bills having ceased to circulate, a com-
mittee was appointed to examine the affairs of the company, which
committee reported favorably. The report produced no effect,
and soon afterwards the company failed, and Smith, the Cashier
runaway, who was followed, some three or four weeks after-
wards by Lyon, the President, leaving a large amount of the
bills of the company in circulation, without any effects of the com-
pany to meet them. The tendency of the evidence was to show
that the loan to the defendant was made for him to put the bills
of the company in circulation in the up country, and othei' per-
sons were induced to borrow bills to effect the same object. At
the time the defendant's note fell due, the notes of the company
were valueless.
The company was an unchartered association of individuals,
pretending to have formed a limited co-partnership. The arti-
cles of partnership, in the form of a certificate signed by the three
general partners, was placed on record in the clerk's office of
the County Court of Coosa county, and ordered by the Judge to
be published in the Wetumpka Argus. The articles recite, that
the partnership consists of Isaac Lyon, John D. Champlin, and
Erastus B. Smith, as general partners ; and Thomae E. Stone,
Erastus E. Smith, Edmund Lyon, and Henry Morgan, as special
partners ; that each of the special partners put in $25,000 to the
common stock, and that the general partners had pledged to trus-
tees real estate valued at $100,000, which was to be kept for
the purpose of saving harmless the special partners and the pub-
lic. The general partners, Lyon and Champlin, are described
as residents of Wetumpka, Erastus B. Smith as late of New
York, Thomas E. Stone of Georgia, Erastus T. Smith of Massa-
chuseets, and the other special partners of New York. The bus-
JANUARY TERM, 1846. 631
McGehee v. Powell.
iness to be conducted under the name of the Wetumpka Trading
Company, and it was to be confined strictly to that which was
mercantile, and such acts and things as would enable it to carry
on the mercantile business, in all its branches and forms. The
company was also to buy, improve and sell real estate to a limit-
ed extent, but in no instance for speculation. All the debts and
transactions of the company, were to be in writing, signed by Ly-
on as President, and countersigned by Erastus B. Smith. It was
not to contract debts by any other kind of promissory notes
than those of the denomination of 3, 4, 5, 10, 20, 50, 100, 500,
and 1,000 dollars, except at the earnest solicitation of their credi-
tors, it may be of public utility to contract debts and give their
notes for less amounts ; but not then in any case after the banks
of the State shall resume specie payments. The partnership was
to commence the 1st September 1838, and end on the 25th of
December, 1850. Other stipulations are contained in the articles,
but these are all which bear upon the questions raised. On the
29th of August, 1838, the then general partners subscribed an
affidavit, made before the Judge of the County Court of Coosa
county, in which they swear that the special partners had paid
into the common stock the amount contributed by each, and spe-
cified in the certificate, (i. e. the articles )
A short time before Lyon absconded he was heard to state,
and confess, that the company was a swindling operation, which
he then could not help. Neither of the general partners have
been back since they ranaway, and the special partners are un-
known to the witnesses examined.
It was also in evidence that the present plaintiff had said he
had no interest in this suit, nor any title or claim whatever, nor
was he aware of any, either in his own right, or as administrator
ofLyon in Benton county; that he had directed no such suit, nor
was the note sued on ever in his possession. In a subsequent
conversation, he reiterated the same statement, but then added
that he understood he had been appointed administrator, to enaWe-
a person then named to bring suits for his own benefit, or for that
of some other person.
The defendant then proved the execution of hundred dol-
lars in amount of the notes of the said company, each signed by
Lyon as President, and offered each note under the several pleas;
the notes so offered in evidence were of all denominations, fromi
983 ALABAMA.
McGehee v. Powell.
$3 IQ $50, and were payable to W: W. Mason, or bearer, on
demand, at the office of the Wetumpka Trading Company. On
motion of the plaintiff, these bills were rejected.
On this evidence, the Court charged the jury, that if the de-
fendant was in Wetumpka at the time the note sued on fell due,
and then tendered the full amount, in either Alabama bank notes
or in notes of the Wetumpka Trading Company, or if the defend-
ant was prevented by any act of the plaintiff from making such
tender, then, in either event, the note was discharged.
The defendant then asked, and the Court refused, the follow-
ing charges, to wit :
1. That if the jury believe all the evidence to be true, they
ought to find for the defendant.
2. If the payee of the note sued on, with others, associated
themselves under the name of the Wetumpka Trading Company,
and entered into the articles read to the jury, and issued the notes
of said company for circulation as money, and kept a banking
house, and discounted notes for persons who would borrow the
notes of the company, and that Lyon was President of the Com-
pany, and that the note sued on was given to him for the notes
of the company loaned to the defendant, at the date of the note,
and issued to him by Lyon, to be put in circulation as money, then
the jury ought to find for the defendant.
3. That if the note sued on was given for the notes of the We-
tumpka trading Co. loaned to the defendant by an officer of the
company, with the intention on the part of the lender, that said
notes should circulate as money, then the jury ought to find for
the defendant.
4. That if the note was executed to the President of the com-
pany, and that the same was the property of the company, and
not the property of Lyon, and if the plaintiff, since the commence-
ment of this suit, had said he had no interest in the same, nor did
he know the suit was pending, and if the defendant has just de-
mands against the company, and that the note never was in the
hands of the plaintiff, or reported as assets of the estate of Lyon,
then the jury ought to find for the defendant.
5. That if the note was executed to the President of the com-
pany, and that it was an unchartered banking company, and that
the note was given in consideration of notes of the company,
which were to be put in circulation as money, in this State, then
JANUARY TERM, 1846. 833
McGehee v. Powell.
ihe contract is void, and the jury ought to find for the de-
fendant.
6. If Lyon, the plaintiff's intestate, with others, formed an as-
sociation for the purpose of banking, and issued notes for circula-
tion as money, under the name of the Wetumpka Trading Co.,
knowing at the time they formed such association, they had not
the means to redeem their notes, put in circulation, and design-
ing to defraud the community, by issuing paper for circulation as
money, putting it in circulation and then not redeeming it, then
that a note given to the company, or to its President, with the in-
tention on the part of the maker, and payee, to promote their cir-
culation as money, such note would be void, and could not be col-
lected in a Court of Law.
The defendant excepted to the charge given by the Court, as
well as its refusal to give those requested by him. He now as-
signs as error —
1. That the Court erred in overruling his demurrers to such
counts of the declaration as were held good,
2. In sustaining the demurrer to the second plea.
3. In excluding the notes of the Company as evidence.
4. In the several refusals to charge as requested, and in the
charge as given.
T. A. Walker, S. F. Rice, and H. P. Douthitt, for the plain-
tiff in error, insisted —
1. That the plea overruled presented a sufficient defence to
the action, as it was the defendant's right to show the note sued
on was thd'property of a third person, against whom existed a
set off. [9 Porter. 309 ; 8 lb. 523 ; 5 Ala. Rep. 135.]
2. If the facts in evidence constituted a defence, it was error
to refuse the charge asked in this connection. [6 Ala. Rep.
753.]
3. The association making the contract was a limited partner-
ship, and such are expressly restrained from banking, by the act
which warrants them to be formed. [Dig. 389, § 1.] Indepen-
dent of this, as banking is a franchise, the contract is void under
the constitution. All contracts in violation of positive law, are
void. [5 Ala. Rep. 257 ; 7 Paige, G53 ; 8 Ohio, 280.]
4. The interest in the contract sued on being disclaimed by
105
834 ALABAMA.
McGehee v. Powell.
the plaintiff on the record, the action could not be maintained.
[Moore v. Penn, 5 Ala. Rep. 135.]
h. It is impossible, at this day, to say that the refusal to give
the charge last requested is not erroi'. All contracts contrary to
public policy are void. [1 Ala. Rep. 34 ; 6 lb. 20 ; Chitty on Con.
519 ; 2 Stew. 175 ; 1 P. Wms. 181 ; 5 John. 327; 17 Mass. 258 ;
3 Wheat. 204; 2 Burr. 924; 6 Mass. 261 ; 5 lb. 386; 3 Hall,
55; 11 Wheat. 58; llS. &R. 164; 6 Term, 61.]
6. The notes of the company were admissible, in connection
with the other evidence, to show the indebtedness and insolven-
cy of the company. The insolvency of the company would de-
feat the action, if the note sued on belonged to them at any time.
[Clay's Dig. 391, §§14, 15,21,23.]
A. F. Hopkins, W. P. Chilton, and F. W. Bowdon, contra,
argued —
1. That no serious question arises upon the declaration.
2. As to the main question arising on the second plea, and the
evidence, the statute regulating limited partnerships, cannot af-
fect this case, because the company here was not organized un-
der that act. The addition of company cannot be used. Not
being a limited partnership, all the partners are bound as general
partners, and there is no pretence to say that such a firm was not
allowed to bank, when banking was not prohibited. [Br. Bank
V. Crocheron, 5 Ala. Rep. 256 ; Nance v. Hemphill, 1 Ala. Rep.
558.]
3. But if the company was a limited partnership, there is no-
thing in the act which prohibits them to bank ; the proviso is the
mere exclusion of the grant of such authority to those kinds of
partnerships.
4. The notes offered in evidence were prima facie irrelevant,
there being no plea of tender or set off.
5. The last charge asked for was entirely abstract, as there
was no evidence to sustain it.
6. The fourth charge had no issue to sustain it, and therefore
was properly refused. [Bryant v. Owen, 1 Por. 201 ; 9 Porter,
309; 5 Ala. Rep. 135.]
GOLDTHWAITE, J.— 1. Before entering upon the conside-
ration of the questions we intend to decide in this case, we think
JANUARY TERM, 1846. 835
McGehee v. Powell.
proper to remark, that no serious objection is stated to the counts
of the declaration upon which the cause went to the jury ; nor
has any particular stress been laid on the exclusion from the jury
of the notes of the Trading Company offered in evidence. The
only plea on which, if at all, these were admissible, had previous-'
]^ been stricken out, and the indebtedness and insolvency of the
company were entirely immaterial facts, in the manner in which
the suit was defended.
2. Nor is it material to notice the decision upon the demurrer
to the second plea, as the same defence was proper, if available
at all, under the general issue, and the proof is more explicit of the
facts upon which the defence is supposed to arise. The argu-
ment assumed by the defendant is, that at the time of this contract,
one of the contracting parties was a limited partnership, and
as such, was inhibited from emitting notes for circulation as mo-
ney. The act of 1837, first authorized the formation of limited
partnerships, but at the same time declared that nothing in it
should be so construed as to authorize any such partnership for
the purpose of banking or making insurance. [Dig. 389, § 1.]
When this statute was passed, there was no restrictive act in
force to prevent individuals, or associations of individuals, from
transacting banking business ; and there is nothing in our State
constitution which takes away their common law right. [Nance
V. Hemphill, 1 Ala. Rep. N. S. 551.] Certainly there is nothing
in the terms of the enactment to warrant the inference that the
intention of the legislature was to restrict such partnerships only.
On the contrary, it seems to have been intended, that as to insu-
rance and banking, no limited partnership should be allowed ; but
that, in this description of business, all the partners should be re-
sponsible, as in cases of other partnerships. We dismiss then,
all consideration of the supposed defects in complying with the
requisitions of the statute regulating limited partnerships, as our
opinion is, that if all had been complied with, no other than a gen-
eral partnership could exist as to this kind of business. It then
comes to no more than this — the association, though formed as a
limited partnership, has, by the articles bringing them together,
contracted to carry on a business which could then be done by
general partners only, and the consequence is, all are liable as
such. Beyond this, the decision cited shows, that at the time of
836 ALABAMA.
McGehee v. Powell.
the contract, bills might be lawfully issued for circulation as mo-
ney, by a genera] partnership.
This conclusion necessarily sustains the refusal by the Court, of
the charges growing out of the supposed construction of the act
regulating limited partnerships.
3. It is urged however, that the jury might properly have in-
ferred, the contract was with relation to bills of three dollars ;
the circulation of which was restrained at the time of the con-
tract. We are not prepared to say that the proof before the ju-
ry was such as to warrant this conclusion ; certainly, however,
it was not one which they were constrained to infer, and in the
absence of any specific request for a charge upon this point of
the case, there was no error in refusing to instruct the jury, that
their verdict ought to be for the defendant. In the case of the
Bank at Montgomery v. Crocheron, [5 Ala. Rep. 256,J a similar
question was presented, and we then held, that the receipt of bills
of this denomination, or less, under a general contract to receive
and circulate as money the bills of a corporation, did not render
the contract void per se, and that the question of intention was
proper to be left to the jury. Our final conclusion is in entire ac-
cordance with that decision.
4. It remains only to consider whether the last charge should
have been given. We do not understand the counsel for the
plaintiff as denying the correctness of this proposition, as a mat-
ter of law, but as insisting, that applied to the facts of this case,
it was merely abstract, as there was no evidence that the defend-
ant entered into the conspiracy of the general partners, if indeed
there was any such, to defraud the public. Undoubtedly the
proposition is correct, and well sustained by adjudged cases in
our Courts, and elsewhere. [Bank v. Crocheron, 5 Ala. Rep.
256 ; Boyd v. Barclay, 1 Id. 34 ; McGehee V. Lindsay, 6 lb.,
16, and cases there cited.] But in the present case, we are con-
strained to say, that the evidence will not sustain the party in his
attempt to stultify himself There is no evidence to connect him
with the attempt to defraud the public, even if it was conceded
there is sufficient to implicate the partners in the trading compa-
ny. The merely contracting for the loan of bills with a compa-
ny, which at the time had credit, and the making arrangements
for a loan to another person, is not sufficient to identify the defen-
dant with the conspiracy, if there was one in the first instance.
JANUARY TERM, 184G. 837
Garey v. Hines.
Indeed, it would seem, if he was aiding and abetting in this object,
he was engaged at a very low compensation, or that the confed-
erates dealt with little liberality to each other.
It is useless to speculate, however, upon such points, as our
opinion is clear, there is no evidence to connect the defendant
with the intention to cheat the public, and therefore the request
of his counsel, in this connexion, was properly refused.
We arrive at the conclusion that the judgment of the Circuit
Court should be affirmed ; and in this we are not aware that in-
jury to the defendant can be the result. If, at the commence-
ment of this suit he was the bona fide holder of the bills of the
company, it is conceived the recent decision of Lyon v. Moore
and Chandler, will indicate his proper remedy ; but if he has spe-
culated on the bills, upon his chance of a verdict, he is entitled to
no relief here or elsewhere.
Judgment affirmed.
GAREY V. HINES.
1. Where a judgment is obtained in a suit commenced by attachment, tlie
plaintiff may, at his election, take out a venditioni exponas for tlie sale of
tlie property attached, or he may sue out an ordinary _^. /a. In the latter
case it would be proper for the clerk to endorse on tlie writ a description of
the property attached, and of the persons by whom it was replevied, that
the sheriff might demand the property seized by tlie attachment, and if not
delivered, return the bond forfeited. If tlie property attached is not deli-
vered, or is insufficient to satisfy the judgment, it would be the duty of the
sheriff to levy on other property.
Error to the County Court of Sumter.
This was a motion against the plaintiff in error, as sheriff of
Sumter, for failing to make the money on an execution of the de-
fendant in error.
The parties having gone to trial on an issue, it appears from the
838 ALABAMA.
Garey v. Hines.
bill of exceptions found in the record, that the execution which
came to the sheriff's hands, was a fieri facias, issued upon a
judgment obtained in a suit commenced by original attachment,
which was levied on a number of slaves, of value more than suf-
ficient to pay the debt, and an endorsement of this fact was made
upon the^. fa., and of the property levied on by the attachment,
which had been replevied and returned to the defendant.
That the sheriff proceeded under the execution, to levy on the
slaves of the defendant, so replevied, who appeared with his gun,
and threatened to shoot the sheriff, if he persisted in taking the
negroes. The sheriff abandoned the slaves, and the defendant
carried them off the next day. The sheriff returned upon the
execution a demand and refusal to deliver the property replevied,
and forfeiture of the bond: an execution, issued upon the for-
feited bond, was afterwards quashed.
The Court charged the jury, that the execution on its face, was
an ordinary fi. fa., and was not controlled, or modified by the
endorsement. That it was the duty of the sheriff to have levied
on sufficient property, and that a demand of the property men-
tioned in the endorsement on Ihe execution, and return of forfeit-
ure of the bond, was not a compliance with his duty. That the
process was not a venditioni exponas, and that the endorsement
of the clerk was improper ; that therefore the action of the sheriff
in conformity with it was improper.
The defendant requested the Court to charge, that in this case
the sheriff had no power to levy ; that it was his duty to demand
the property mentioned in the clerk's indorsement ; and on failure
to deliver it, to make the return he did. That if he did seize the
property under the process in his hands, he was justified in deliver-
ing it on the demand of the defendant in execution. That the
sheriff had no power to levy, or take any other property than that
mentioned in the endorsement.
Also to charge, that the clerk had no power to issue an execu-
tion against the defendant's land and goods generally. Further,
that if the sheriff rightly made the levy, and believed his life in
jeopardy, under the threat made, he was excusable in relinquish-
ing the levy.
The Court left it to the jury to say whether the sheriff's life
was in jeopardy, and refused the other charges moved for. To
JANUARY TERM, 1846. 839
Garey v. Hines.
the charge given, and to those refused, the defendant excepted,
and now assigns as error.
R. H.Smith, for plaintiff in error. — The lien of the plaintiff
continued, notwithstanding the execution of the replevy bond, and
that levy being sufficient, no other can be made until it is ex-
hausted. [Clay's Dig. 61, § 33, 35 ; 1 Ala. 678 ; 7th 'Id. 138.]
The sheriff is not bound to risk his life, and of that he is the pro-
per judge.
Hair, contra, cited 9th Porter, 70,405 ; Clay's Dig. 205, § 18,
21 ; 203, § 9.
ORMOND, J.— The attachment law of 1837, [Clay's Dig. 61,
§ 33,] evidently contemplated, that the property levied on should
continue in specie for the satisfaction of the judgment when ob-
tained, but it does not follow, that the plaintiff in attachment can
not resort to other property of the defendant for the satisfaction of
the judgment. That an ordinary^, fa. may be issued in such a
case, is expressly provided by statute ; [Clay's Dig. 62, § 35,] —
" that where judgment shall be rendered, execution may be issued
in the usual way, which shall be first levied on the property at-
tached, if to be had, and then upon any other property of the de-
fendant." This section, it is true, relates to ancillary attachments
sued out after the commencement of the action ; butit is evident,
that such attachments are, in all respects, upon the same footing,
with a suit commenced in the first instance by attachment.
The plaintiff in attachment may therefore, at his election, sue
out a venditioni exponas for the sale of the property attached,
or he may take out an ordinary^. /a., which may be levied on the
property originally seized, or on any other effects of the defend-
ant. If the latter mode is resorted to, it is certainly proper that
the clerk should endorse upon the writ, a description of the pro-
perty attached, and of those by whom it was replevied, that the
sheriff may make demand of the property, and if not delivered,
return the replevy bond forfeited. This endorsement, however,
does not change the character of the writ, or deprive the sheriff
of the power of levying on any other property of the defendant.
If the property attached is not delivered up on demand, or is in-
840 ALABAMA.
Mead, use, &c. v. Brooks.
sufficient to satisfy the judgment, it would be his duty to levy on
other property, if to be had.
No question arises upon the fact, that the sheriff delivered up to
the defendant the property he had levied on, upon a threat of per-
sonal violence, as the Court left it to the jury to say, whether the
life of the sheriff was in jeopardy, in accordance with the charge
moved for upon that point.
" Let the judgment be affirmed.
MEAD, USE, &c. BROOKS.
1. When a note has been paid and delivered up, it will not be presumed that
the maker afterwards retains it in his possession ; consequently parol evi-
dence is admissible to prove a payment when it becomes a material inqui-
ry, without calling upon the party to whom the writing was delivered to
produce it.
<
Writ of Error to the Cftdnit'Court of Btount.
This was a suit commenced before a justice of the peace, by
the plaintiff in error, to recover of the defendant the sum of #20,
upon a promise in writing. The cause^w^ removed by appeal
to the Circuit Court, vvhcre it was trie^'by a jury upon the plea
o^ non-assumpsit, 2i verdict was returned for the defendant and
judgnrent rendered accordingly.
From a bill of exceptions sealed at the instance of the plaintiff,
it appears that he gave in evidence a writing of the following ten-
or, viz : "Col. Mead. Dear Sir: I will pay twenty dollars for
Mr. Decker, t)n to-morrow week. I have no other money but
Georgia money, and Mr. Hale says you wont take that. I have
a draft on Decatur, which 1 shall send for next week, and imme-
diately will bring it to you. Your compliance will much oblige,
yours, respectfully, J. S. Brooks. 18th Feb'y, 184L" Here the
plaintiff rested his case. The defendant then introduced a wit-
ness, who testified that subsequent to the 18th February, 1841,
JANUARY TERM, 1846. 841
Mead, use, &c. v. Brooks.
the plaintiff gave to the defendant a note for fifty dollars ; witness
Was not present when the note was given, but knew its date, from
the fact that it had been in his possession, and he observed its
date. Witness stated that he gave up the note to the plaintiff
when he paid it off. No notice had been given to the plaintiff to
produce the note ; thereupon his counsel moved that the evidence
in respect to it, might be excluded from the jury ; which motion
was overruled, and the testimony admitted.
C. E. B. Strode, for the plaintiff in error, insisted, that to au-
thorize the admission of secondary evidence of the contents of a
writing, the loss of the writing should be shown, or if in the pos-
session of the opposite party, due notice should have been given
to produce it. [He cited 1 Johns. Rep. 339 ; 13 Id. 90 ; 3 Day
Rep. 283 ; 8 Pick. Rep. 552 ; 1 Biijn. Rep. 273 ; G Sergt. & R.
Rep. 154 : 7 Ala. Rep. 698 ; 3 Yeatcs' Rep. 271 , 3 Phil. Ev.
C. &H.'s notes, 1182.
W. S. MuDD, for the defendant.
COLLIER, C. J. — The object of the evidence adduced by the
defendant, though not explicitly stated by the bill of exceptions,
was doubtless to lay a predicate for the presumption that the
cause of action set up by the plaintiff had been fully discharged.
This inference it is supposed was fairly deducible from the fact,
that subsequent to the defendant's assumption, the plaintiff made
his note to him for alargcr amount, and afterwards discharged
that note iJi ^o/o, without claiming a deduction for, or saying any
thing about the indebtedness of the defendant. It is clear that
such a state of facts was not irrelevant to the issue, and cei'tainly
were well worthy of consideration by the jury in determining
whether the liability of the defendant was still subsisting.
It is then material to inquire whether the testimony objected to
was rightly received. There can be no question but the general
rule in regard to the admission of parol proof of facts which are
evidenced by writing, is quite as stringent as has been insisted for
by the plaintiff. But does not the case at bar form an exception
to the rule ? Can the presumption be indulged after a note or oth-
er evidence of debt has been discharged and delivered to the
debtor, that he still retains it in his possession ? Wc have upon
100
842 - Al^ABAMA.
Wilson V. Auld.
several occasions intimated otherwise, and still think that in such
.case parol evidence is admissible to prove a payment, without cal-
ling upon the party to whom the writing was delivered, to pro-
duce it. [P. & M. Bank of Mobile v. Borland, 5 Ala. Rep. 531 ;
P. & M. Bank of Mobile v. Willis & Co. Id. 770 ; See also, Ber-
thoud V. Barboroux, 4 Louis. Rep. N. S. 543.]
It results from what has been said, that the law was rightly
ruled by the Circuit Court. Its judgment is consequently af-
firmed.
WILSON V. AULD.
1. Where a judgment is obtained against one as- the executor of an estate
after the resignation of the trust, the judgment has no effect upon a suc-
ceeding administrator, and therefore an execution may lawfully issue to
the sheriff, although he is the succeeding representative of the same estate.
Writ of Error to the County Court of Mobile.
Motion by Auld to quash a writ of ^. fa. issued against him
as the executor of one Viner, at the suit of Wilson. The writ is-
sued on the 15th April, 1842, and commanded the sheriff to make
a sum therein specified, out of the goods of Viner, in the hands of
Auld to be administered. The reason assigned to quash it is,
that the writ improperly issued to the sheriff.
At the hearing of the motion, it was shown that Wilson reco-
vered judgment against Auld, as the executor of Viner, for one
thousand seven hundred and nine dollars and eleven cents, at the
February term of the County Court. The judgment is entered
to be levied de bonis testatoris. The fi. fa. was delivered to
the sheriff of Mobile county, that office then being filled by
George Huggins, who on the 10th June of the same year, return-
ed the fi. fa. " no property."
From the record of the original suit, it appears the defendant
pleaded puis dai^rein continuance, that he had resigned his office
JANUARY TERM, 1810. »43
Wilson V. Auld.
as executor ; and paid over the assets of the estate then in his
hands, to his successor, George Huggins, administrator de bonis
71071, and the judgment is entered upon a verdict of a jury. Af-
terwards, a motion was submitted to correct this entiy, so as to
show that the 'plea above stated, was overruled on demuiTer,
and was not submitted to the jury. This motion seems to have
been overruled for some cause, independent of the affidavits, in-
asmuch as they establish the fact assumed by the motion. After
the return of the _^. fa., the subject of this motion, another was
issued, executed to the coroner, though directed generally, to any
sheriff, upon which one hundred and twenty-one dollars was re-
turned as made.
It was also shewn that Auld resigned the office of executor
on the 8th December, 1841. On the 17th of the same month,
the sheriff, Geoi'ge Huggins, was appointed administrator, de hO'
nis non of the same estate. Auld made a final settlement with
the County Court, on the 10th January, 1842, when that Court
made an order for him to pay over the balance ascertained to be
in his hands, to Huggins, his successor, and also to turnover such
assets as remained in specie. Auld produced the receipt of Hug-
gins, dated the 13th January, 1842, showing the payment of the
sum ascertained to be due, and the delivery to him of the assets
of the estate. Huggins continued as administrator de bonis non,
from the time of his appointment, until the hearing of the motion.
On this state of facts, the Court quashed the execution, on the
ground that it was improperly issued against Auld, he having re-
signed previous to the rendition of the judgment, and also, be-
cause Huggins was the administrator de bonis non, when the ;^'.
fa. was issued and returned.
This is now assigned as error.
J. A. Campbell, for the plaintiff in error, insisted,
1. That the execution was properly issued, the record con-
taining no evidence of any change in the parties, or the resigna-
tion of Auld. The matter of the motion was attempted by plen,
but was pronounced insufficient. [6 Bacon's Ab. 105, S. M.
Dalton, Sh'ff, 90.]
2. The sheriff, Huggins, had no interest in the execution, and
his predecessor's conduct was not a subject of inquiry for him.
Chamberlain v. Bates, 2 Porter. .550.]
844 ALABAMA.
Wilson V. Auld.
3. If the defendant wished to change the dh'ection of the writ,
he should have suggested the change of parties on the roll.
[Dalton, Sh'fT, 97.]
4. The motion is made three years after the return, and the
Court will not quash it for the reason of delay. [1 Mete. 514 ;
Sewell on ShfF. 88 ; 3 S. & P. 345 ; 9 Porter, 275 ; 5 Stew. &
P. 402.]
K. B. Sewell, contra, contended,
1. That whenever a sheriff is incompetent to act as such in a
particular case, an execution issued to him is irregular, and will
be set aside on motion, [Clay's Dig. 159, § 2 ; Pope v. Stout, 1
Stew. 375 ; Bing. on Ex. 222 ; Williams v. Gregg, 7 Taunt.
233.] And the matter from which the incompetency arises,
may be shown by the record or by affidavit. [Wistor v. Carl-
ton, 1 Black. Rep. 506.]
2. Huggins was incompetent to act as sheriff in this case.
1. Because he was the sole representative of the estate. Auld
by his resignation, ceased to represent the estate, as completely,
as if he had been removed. [Clay's Dig. 222, § 9 ; Elliott v.
Eslava, 3 Ala. Rep. 570 ; Harbin v. Levi, 6 lb. 403; Taylor v.
Savage, 1 Howard, 286.]
2. Huggins was a privy in estate, and a privy in estate is a
privy in interest. [Dale v. Roosevelt, 8 Cowen, 339 ; King v.
Griffin, 6 Ala. Rep. 387 ; Greenl. on Ev. 221.]
3. Huggins was entitled to all the assets and effects of the
estate not duly administered or applied. [Clay's Dig. 222, § 9 ;
Harbin v. Levi, 6 Ala. Rep. 403 ; Turner v. Davies, 2 Saund.
155; King v. Griffin, 6 Ala.Rep. 387; Jewett v. Jewett, 5 Mass.
Rep. 275.]
4. Huggins, in truth, was a party to the record, as appears by
the plea, and is conceded to be go, by issuing the alias execution
to the coroner.
5. It was unnecessary for Auld to plead his resignation. He
was discharged by operation of law, of which the plaintiff had no-
tice, through the proceedings in the Orphans' Court. [King v.
Griffin, 6 Ala. Rep. 357; Greenl. on Ev. 586, § 550.] It was
incumbent on the plaintiff, if he wished to prosecute his suit, to sug-
gest the resignation of Auld. [Clay's Dig. 227.] And if Hug-
gins, the successor in representation, was not made a party in the
JANUARY TERM, 1840. 845
Wilson V. Auld.
case after the resignation of Auld, then all subsequent proceed-
ings arc wholly void. [Taylor v. Savage, 1 Howard, 286.]
3. It is not the policy of our laws to make a personal represen-
tative liable, except for actual waste. [Ewing v. Peters, 3 Term,
G5G; Jewett v. Jewett, 5 Mass. 275; 2 Kent's Com. 418.]
4. The motion to set aside process, is limited in time only by
the sound discretion of the Court. This seems to be the only-
rule deducible from the cases. [9 Porter, 279 ; 5 S. & P. 402 ;
3 John. 523 ; 13 John. 537 ; 1 Cowcn, 711 ; 7 John. 556 ; 4
Wend. 217 ; Hubbcrt v. McCollum, 6 Ala. Rep. 224.]
GOLDTHWAITE, J.— This case involves, to some extent,
the consideration of the same principle, decided in the case of
Skinner v. Frierson, supra. It is evident, if no privity exists be-
tween the sheriff, who was the administrator succeeding Auld,
and Auld himself, in the execution sought to be quashed, then
there is no reason why this officer, as well as any other, may not
perform the necessary duties. As observed, in the case cited,
after the resignation of Auld, he ceased in law, as well as in fact,
to represent the estate, and the plaintiff's only object in pursuing
the suit further against him, was to make him or his sureties per-
sonally responsible. This could be done through the medium of
a return of no property. We fully concede the proposition in-
sisted on by the defendant, that the judgment obtained against
him is of no force against a succeeding representative, if obtain-
ed at a time when he had ceased to represent the estate. To this
effect is Taylor v. Savage, [2 Howard, 282.] and the same prin-
ciple is admitted in Elliott v. Eslava. [3 Ala. Rep. 570.J
In this view it is apparent the sheriff is in no privity with Auld,
so far as his duties are connected with the execution sought to be
quashed.
Judgment quashing the execution fe versed.
846 ALABAMA.
- %,j\V
Houston, Adm*r, v. Prewitt.
HOUSTON, ADM'R. v. PREWITT.
1. The ttransferor of a chosein action, is an incompetent witness for the trans-
feree, in a suit brought by him for its recovery; and it seems that a release
would not restore his competency.
2. A bankrupt who had transferred bills of exchange as collateral security,
to one of his scheduled creditors, is an incompetent witness for the creditor,
because the discharge of the debt by the bills, would release the estate of
the bankrupt from its payment, and increase the surplus.
Error to the Circuit Court of Mobile.
Assumpsit by the intestate of plaintiff in error, as bearer of
two bills of exchange against the defendant, as drawer and ac-
ceptor of two bills of exchange, which are in the usual form, ex-
cept that no person is mentioned in the bills to whom the money
is payable. The declaration contains two counts in the usual
form, and also the common counts.
The plaintiff introduced the bills of exchange, and offered to
introduce Patrick O'Neil as a witness, he being a certificated
bankrupt. The defendant objected that he was incompetent, be-
ing interested in the event of the suit. To show his interest, they
introduced several depositions, by which it appeared, that the
bills of exchange were given by the drawers to Patrick O'Neil,
in settlement of a judgment of O'Neil, against one T. Coopwood,
the drawer of one of the bills, and that the bills were drawn in this
peculiar manner at the request of O'Neil.
To rebut this testimony, the plaintiff introduced other deposi-
sitions, by which it appeared, that the plaintiff and his intestate
were the sureties of Patrick O'Neil, had been compelled to pay
about $5,000 for' him, and that these bills were deposited with
them, and relied on by them, for their re-imbursement. The
Court excluded the witness, and the plaintiff excepted.
Phillips, for plaintiff in error. The interest which will dis-
qualify a witness must be certain, not possible, or even probable.
JANUARY TERM, 1846. 847
Houston, Adm'r, v. Prewitt
[1 Salk. 283 ; 6 Bing. 390 ; 3 Term, 27. 1 S. & R. 36 ; 3 John.
258 ; 2 Y. & J. 45.]
The witness was called to diminish, rather than increase the
assigned estate, and for this purpose was certainly competent.
[Gren. on Ev. 437.]
The evidence of O'Neil might have authorized a recovery on
the common counts, which distinguishes the case from the posi-
tion it occupied when here before ; although the papers were nqt
technically bills of exchange, they should be regarded as an ac- '
knowledgment, that the acceptor had the funds of the drawer,
and would pay it over to the person who should demand the
same. To show that there might be a recovery on the common
counts, he cited 12 John. 90; 1 Cranch, 440; 5 Co wen, 75; 5
N. H. 577 ; Bayley on Bills, 244.
Campbell, contra, contended, tliat the case was not varied
since it was last here — the bills stood alone ; no evidence of de-
livery to the plaintiff-^no evidence of consideration, to relieve
them from the infirmity of their condition. He cited 6 Wend.
644; 13 Mass. 158.
The testimony shows, that O'Neil was interested. If these
bills are collected, it will relieve his estate from the payment of
the debt which they were intended to secure. It would relieve
his estate from the claims of this creditor, and increase the surplus
in the hands of the assignee. This point was decided in 7 Ala.
Rep. 498.
ORMOND, J. — If the plaintiff, and his intestate, are to be con-
sidered as scheduled creditors of the witness, then it appears to
us, the principle of the case of Cromwell & Johnson v. Comegys^
7 Ala. Rep. 498 would apply to this case, because the payment
of that debt, which would be the consequence of a successful pro-
secution of this suit, would relieve his estate from paying it, and
thus increase the surplus by that amount, for which purpose he
would not, on the authority of the case cited, Jbe competent.
Further, on grounds of public policy, we think he is incompe-
tent to testify. The consideration upon which these bills were
made, passed from him to the drawers, and it also appears the
bills were delivered to him; he cannot therefore be permitted, by
his own testimony, to maintain an action brought upon them, in
848 Jfe.LABAMA.
Mabry, Giller & Walker v. Herndon.
the name of another. To tolerate this, would be to introduce
the evils of champerty and maintenance. In the case of Bell v.
Smith, 5 Barn. &: Cress. 188, which is very similar to this, in its
facts, and entirely analagous in principle, the Court held, that the
witness, though not the nominal, was the real plaintiff in the ac-
tion ; and Bayley, Justice, added, " But I think, that Armet (the
witness) was incompetent upon higher grounds. The action was
brought at the instance of Armet, and three others ; it was then
found they had not suffiqient evidence to support it, and machine-
ry was resorted to, calculated to introduce all the evils of cham-
perty, and maintenance. First, Armet, without consideration re-
leased all his interest to the nominal plaintiffs in the suit ; that
was not considered sufficient, and then, in consideration of ten
shillings, all the parties joined in a conveyance to Lackland and
Robertson. It is difficult to j^ut a stronger case of maintenance
or champerty." " - •.
In the case at bar, the bllTs of exchange must be considered as
transferred to the plaintiffs, by the witness, the consideration up-
on which the bills were drawn having passed from him, to the
drawers, and the bills having been delivered to him. It is then,
the naked case of the transferror ofachose in ac/zow, introduced
as a witness to establish the debt. It is perfectly clear, this can-
not be tolerated, nor, as shown by the case cited, would a release
from the transferee restore his competency. In any view we
have been able to take of this case, the decision of the Court be-
low was correct, and its judgment is therefore affirmed.
MABRY, GILLER & WALKER v. HERNDON.
1. There is no inhibition in the bankrupt act of 1841, or in the relation which
the State and Federal Governments bear to each other, or in tlie grants or
restraints of power conferred upcwi them respectively, which deny to the
State Courts the right to entertain an inquiiy into the validity of a dis-
charge and certificate upon an allegation duly interposed, that the bank'
JANUARY TERM, 1846. 849
Mabry, Giller &, Walker v. Herndoiu
nipt did not render a full and complete inventory of his " property, rights
of property, and rights and credits," but fraudulently concealed the same.
2. Q«ere? May not tlie discharge and certificate of a bankrupt be impeached
for fraud by one not a party to the proceedings in bankruptcy, according
to the principles of the common law, without reference to the provisions of
the act, and in such case is it not sufficient for the pleadings to state in
what the fraud consists, without giving the formal notice which the act
seems to contemplate.
3. Semble; A plea which merely alledges that the debt sought to be recovered
is of a. fiduciary character, is bad ; because it states a legal conclusion, in-
stead of disclosing the facts, that the Court may determine whether the
debt is founded upon a trust, such as is excepted from the operation of the
bankrupt act.
4. It is not an available objection on error,, that notice of an intention to im-
peach a bankrupt's discharge and certificate, was not given ujitil after the
commencement of the term of the Court when the cause was triable ; the
act of Congress does not prescribe the time when the notice must be given
and if too short to allow the necessary preparation to be made for trial, a
continuance should be asked.
5. Where a defendant in execution sets up his discharge and certificate as a
bankrupt, by a petition, upon which a. supersedeas is awarded, it is competent
for the plaintiff to impeach the same for any of the causes provided by the
act of Congress of 1841, and make up an issue to try the facts.
Writ of error to the Circuit Court of Benton.
The defendant in error presented his petition to a Judge in va-
cation, setting forth that a writ oi fieri facias, (which he particu-
larly described,) had been issued against his estate, upon a judg-
ment recovered by the plaintiff in error, in October, 1842; that
in November, 1843, he was .regularly declared a bankrupt, by
the District Court of the United States for theNorthern District
of Alabama, and thereby fully discharged from all the debts he
owed previous to the 9th January, preceding, the day when he
instituted proceedings in bankruptcy. Thereupon he prayed
that the fieri facias in question might be superseded, until the
term of the Circuit Court of Benton next thereafter to be holden ;
that then the same might be quashed, and the levy discharged.
The supersedeas was accordingly granted.
The plaintiffs in execution gave notice in writing to the de-
fendant, that they would impeach his certificate of final discharge
in bankruptcy, for fraudulent concealment in failing to render a
107
eso ALABAMA.
Mabry, Giller & Walker v. Hemdon.
full and complete inventory of his " property, rights of property,
and rights and credits," pursuant to the bankrupt act of Con-
gress, passed in 1841 ; setting out particularly the property, &c.
omitted to be discovered to the District Court and submitted to
its action.
The plaintiffs in execution interposed several pleas, alledging
that although the defendant was the owner of the property, &c.
described in the notice, previous to, and at the time when he filed
his petition in bankruptcy, yet he fraudulently concealed the same,
&,c. Further, that the debt, the collection of which is sought to
be enforced by ihe fieri facias, was a " fiduciary debt," and con-
tracted by the defendant in a " fiduciary capacity."
The defendant moved the Court to strike out the pleas that
had been filed to his petition to the supersedeas; which motion
was granted, the pleas stricken out, and a judgment rendered
quashing the execution at the plainliff''s costs.
T. A. Walkee, G. W. Gayle, and J. W. Pryor, for the
plaintiffs in error. The certificate in bankruptcy is the evidence
that the decree recited has been rendered by a Court of limited
or special jurisdiction; and by the common law, every judgment,
sentence, or decree, of a Court of general, or limited, or exclu-
sive or concurrent jurisdiction, may be impeached for fraud, in
any Court where it is attempted to be set up, by all who are in-
jured by the fraud, and who are not parties to the judgment, &c.
Whether parties to the judgment are not bound by it, so long as it
stands, and can only avoid it by some direct proceeding, it is not
necessary to inquire; for the plaintiffs were not parties to the pro-
ceedings in bankruptcy — not having proved their claims, &c.
It must be assumed, that the pleas interposed to the petition
for the supersedeas are true ; that they state such a case as avoids
the certificate for fraud, cannot be questioned. See Bankrupt
Actof 1841,§§ 4, 5.
The bankrupt law does not expressly, nor by implication, de-
prive the State Courts of their common law right,of examining an
allegation of fraud against a decree under which a certificate issues ;
and there is nothing in the character of such a decree to exempt
it from the ordinary objections to which other judgments are sub-
ject. No rule of policy would be opposed, nor would the har-
mony of conflicting jurisdictions be disturbed by the exercise of
JANUARY TERM, 184C. 851
Mabry, Gillcr & Walker v. Hemdoi;.
such a power by the State Courts ; and it cannot be taken away
by strained construction and remote inferences.
If the decree may be attacked for fraud in the bankrupt Court,
every creditor who was not a party, or if a party, has discover-
ed fraud since the decree was rendered, must be allowed to in-
stitute his separate proceeding, for the purpose of testing its va-
lidity. And tlius there would be quite as much expense and vexa-
tious litigation, as if the right of contesting it when attempted to
be set up, were conceded to all Courts, both State and Federal.
There can be no doubt but the State Courts can decide ques-
tions arising under the United States laws. [Judiciary Act of
1789, § 25, 2 vol. U. S. Laws, 65.] The fourth section of the
bankrupt law of 1841, impliedly confers the jurisdiction, and the
sixth section does not take it away. Suppose both parties, viz :
the bankrupt and his creditor reside in the State, the latter can
institute no proceeding in the Federal Courts against the former;
so that if the validity of the certificate could not be tried in the
State Courts, it could not be impeached. Besides, the State tri-
bunals have jurisdiction over the person and property of its citi-
zens, and it is not competent for Congress to forbid or interrupt
its exei'cise.
The fifteenth section of the first article of the constitution of
Alabama, and the eighteenth section of the same, guaranty to the
citizen a remedy for every grievance, and secure to the creditor
the right to arrest a debtor where there is strong presumption of
fraud. This being the case, the right to sue and exhaust the re-
medies afforded by the State Courts cannot be taken away, al-
though the Supreme Court of the United States may have the
ultimate jurisdiction, if the subordinate tribunals decide against
the validity of the proceeding under the act of Congress. In the
matter of Comstock, 5 Law Rep. 163; 2 Bibb's Rep. 204.
The argument, that the defendant should be sued on the judg-
ment against him, that he might plead his discbarge, and thus test
the question of fraud vel non, cannot be supported. Graham v.
Pierson, 6 Hill's Rep. (N. Y.) 147, does not discuss the ques-
tion, and, as an authority, is worth nothing. If such a suit were
brought, it would be a waiver of the lien of the judgment and ex-
ecution thereon (if any,) which the creditor should not be con-
strained to make. See Bankrupt Act, last proviso to 2d section,
and Kittredgc v. Emerson, 7 Law. Rep. 317.
862 ALABAMA.
Mabry, Giller &> Walker v. Hemdon.
McDougald v. Reid and Talbot, 5 Ala. Rep. 810, is unlike the
present. The judgment there was subsequent to the institution
of the proceeding in bankruptcy, though previous to the certifi-
cate of discharge; the petition related back to the filing of the pe-
tition, and prevented the lien of the judgment from attaching.
Under our statute, the judgment creditor acquires rights which
no Court can take away. [Clay's Dig. 199, § 1.] The bankrupt
must avail himself of his certificate by petition for a supersedeas,
or suit in Chancery ; and in either form of proceeding, an issue
may be framed to try whether the certificate was obtained by
fraud.
Fiduciary debts are excepted from the operation of the bank-
rupt law, and the plea alledging that fact was a sufficient answer
to the petition for a supersedeas. In the matter of Horace Lord,
5 Law. Rep. 258 ; In the matter of George Brown, 5 Law. Rep.
121, 258 ; In the matter of Tebbetts, 4 Law Rep. 259 ; see also
5 Law. Rep 258 ; 2 How. Rep. (U. S ) 202 ; 5 Hill's (N. Y.)
Rep. 327.
A. F. Hopkins and W. P. Chilton, for the defendant in error.
The decree in bankruptcy is in itself a discharge of the bankrupt
from his debts, whether they are reduced to judgment or not; and
if a judgment has been rendered, no execution can issue thereon ;
if it does issue, it is a mere nullity. [Bankrupt Act, § 4 ; McDou-
gal v. Reid & Talbot, 5 Ala. Rep. 810.J The uniform practice
in such cases is, to direct a perpetual stay of execution on motion.
[1 Bos. & P. Rep. 426; 1 Cow. Rep. 42; Id. 44 ; Id. 165; 1
Caine's Rep. 249 ; 4 John. Rep. 191 ; 9 Wend. Rep. 431 ; 6 Hill's
Rep. (N. Y.) 247 ; Id. 250 ; 9 Johns. 259.] If the creditor in-
sists that the bankrupt obtained his certificate by fraud, he must
institute some direct proceeding to try that question.
It is admitted that debts of a fiduciary character are excepted
from the operation of the bankrupt law, and that over these the
District Court had no jurisdiction. But the plea alledging that the
certificate was void for that cause, was itself a mere nullity ; it
did not disclose the facts which showed that such was the charac-
ter of the debt; it merely affirmed a legal conclusion. A party
should not be put to his demurrer to such a plea. [See 3 Stew.
Rep. 172.] But if it was irregular to strike out the plea on mo-
JANUARY TERM, 1846. 853
Mabry, Giller &, Walker v. Hemdon.
tion, the error was repaired by giving leave to plead over, al-
though the defendant did not avail himself of it.
The bankrupt act contemplates that the creditor shall become
the actor in impeaching the certificate, not by issuing an execu-
tion, but by notice and suit ; the mode adopted, (in effect,) makes
the bankrupt the plaintiff, by his petition for a supersedeas, and
denies to him the right of availing himself of his certificate, un-
less he shall enter into bond with surety to indemnify the plain-
tiff if he is unsuccessful in resisting the execution. If this be the
regular course of proceeding, the bankrupt law will often fail in
effecting the purpose intended, and the debtor lose the benefit of
his discharge. It is no objection to this view, that the judgment
and execution operate a lien upon the bankrupt's estate. The
property of the bankrupt passes to the assignee, who takes '\icum
onere; the law expressly reserves the lien from the operation of
the decree, and of consequence affords the means for its enforce-
ment. As to the property on which the lien attached, the judg-
ment remains in full force, and it may be seized under an execu-
tion ; but there is no lien upon after acquired property — as to this,
the judgment is wholly inoperative. [Ex parte Ne wall, assignee
of Brown, 5 Law Rep. 306.]
There was no sufficient notice that the decree and certificate
would be impeached for fraud. It was not given until three days
after the commencement of the term of the Court.
The State Courts have not jurisdiction to inquire into the fact
of fraud or wilful concealment by the bankrupt. If the discharge
is successfully impeached, it is set aside and annulled in toto ;
whereas, if it was adjudged void by a State tribunal, such deci-
sion would affect it only in the particular case, while it would
continue in force as to all other cases. The certificate it is de-
clared, is a complete discharge of all debts proveable under the
act. Now suppose a majority of the creditors were to object
before the District Court, that the bankrupt had made a fraudu-
lent conveyance, or that he had intentionally concealed a part of
his property, an issue was made up and determined in favor of
the latter ; would not the decision conclude all creditors, whether
before the Court or not, and prevent a collateral impeachment of
the decree? The subject of bankruptcy is in its nature exclusive,
and should not depend for the uniformity of its administration.
854 ALABAxMA.
Mabry, Giller & Walker v. Hemdon.
upon the various conflicting adjudications of different jurisdic-
tions.
The jurisdiction of the District Court by the Gth section of the
act, extends not only to creditors who prove their debts, but to
those whose debts constitute present subsisting claims capable of
being asserted ; and the District Courts have uniformly inter-
posed to suspend and control proceedings in the State Courts
which interfered with the administration of the bankrupt's estate.
[See ex parte Winthrop, 5 Law Repo. 19-24 ; Kittredge v.
Warren, 5 Law Repo. 77 ; Christie v. The City Bank of New-
Orleans, 7 Law Repo. 553.] " The power both as regards the
enactment of the law, and giving effect to it, belongs to the fede-
ral government exclusively." [Ex parte Bellows & Peck, 7 Law
Repo. 119 ; 1 Western Law Journal, 15] In the case last cited
from the seventh Law Reporter, it is said, " If the bankrupt ob-
tains his discharge, and pleads it as a bar, and the creditor means
to contest its validity, by replying fraud, or that the debt is not
otherwise within the discharge, the creditor should apply to the
District Court for leave to proceed in the cause, and to test the
validity of the discharge by a trial in the State Court, which is
granted of course, upon suitable proofs and affidavits." The
District Court has plenary chancery powers to be exercised in a
summary way, and may well award the issue to the law court of
the State.
COLLIER, C. J.— The act of 1841, « To'establish a uniform
system of bankruptcy throughout the United States," invests the
District Court of each District with jurisdiction in all matters
and proceedings in bankruptcy, arising under that or any subse-
quent enactment upon the same subject ; and the District Judge
may adjourn any point or question arising in such case, into the
Circuit Court for the District, in his discretion, to be there heard
and determined. « And the jurisdiction hereby conferred on the
District Court shall extend to all cases and controversies in bank-
ruptcy arising between the bankrupt and any creditor or credi-
tors who shall claim any debt or demand under the bankruptcy ;
to all cases and controversies between such creditor or creditors
and the assignee of the estate, whether in office or removed ; to
all cases and controversies between such assignee and the bank-
rupt, and to all acts, matters and things to be done under and in
JANUARY TERM, 1840. 855
Mabry, Giller & Walker v. Hemdon.
virtue of the bankruptcy, until the final distribution and settlement
of the estate of the bankrupt, and the close of the proceedings in
bankruptcy." — [Sec. 6.J By the eighth section, the Circuit Court
of the District where the decree of bankruptcy is passed, is au-
thorized to exercise concurrent jurisdiction with the District
Court, of all suits at law and in equity which shall be brought by
any assignee against any person claiming an adverse interest, or
by such person against such assignee touching any property or
rigiats of property of the bankrupt, " transferrable to, or vested
in such assignee ; and no suit at law, or in equity, shall in any
case be maintainable by or against such assignee,or by or against
any person claiming an adverse interest, touching the property
and rights of property aforesaid, in any Court whatsoever, unless
the same shall be brought within two years after the declaration
and decree in bankruptcy, or after the cause of suit shall first
have accrued." These are the only provisions of the act that
confer or inhibit the exercise of jurisdiction, save only the authori-
ty expressly delegated to compel obedience to all (Trders and de-
crees in bankruptcy, " by process of contempt and other reme-
dial process," and " to prescribe suitable rules, regulations and
form's of proceeding in all matters of bankruptcy," &c., in ad-
vancement of the purposes for which the law was enacted. —
(Sec. 6.)
The act then, does not affirmatively authorize the District or
Circuit Court to entertain a direct proceeding with the view to an-
nul the certificate of a bankrupt, and if such a power is inferrible
by construction, it is certain there are no negative terms employ-
ed which inhibit any Court from considering. the validity of the
certificate when it is drawn in question by the pleadings. To
impugn the certificate because of the fraud of the bankrupt in ob-
taining it, is certainly not a proceeding, case, or controversy in
bankruptcy, at the sukof the bankrupt; or between himself and
a creditor claiming a debt or demand iM^er the hankruptcy^
or between the assignee and a creditor ; ^* between the assignee
and the bankrupt. And with no semblance of reason can it be
considered as an " act, matter, or thing to be done under and in
virtue of the bankruptcy." This latter class of cases is limited
in terms to matters accruing previous to " final distribution and
settlement of the estate of the bankrupt, and the close of-the pro-
ceedings in bankruptcy." Without more particularly noticing
850 ALABAMA.
Mabry, Gillcr & Walker v. Hemdon.
the purport of the eighth section, it is quite enough to say, that it
docs not embrace the case of a creditor seeking to enforce by exe-
cution the collection of his judgment against a certificated bankrupt.
The fourth section of the act provides that, if a bankrupt
*' shall be guilty of any fraud or wilful concealment of his pro-
perty or rights of property, or shall have preferred any of his
creditors, contrary to the provisions of this act, or shall wilfully
omit or refuse to comply with any orders or directions of such
Court, or to conform to any other requisites of this act, or shc^l in-
the proceedings under this act, admit a false or fictitious debt
against his estate, he shall not be entitled to any -such discharge
or certificate," &c. Further, a " discharge and certificate, when
duly granted, shall in all courts of justice be deemed a full and
complete discharge of all debts, contracts and other engagements
of such bankrupt, which are proveable under this act, and shall
be, and may be pleaded as a full and complete bar to all suits
brought in any Court of judicature whatever, and the same shall
be conclusive evidence of itself in favor of such bankrupt, unless
the same shall be impeached for some fraud or wilful conceal-
ment by him of his property or rights of property, as aforesaid,
contrary to the provisions of this act, on prior reasonable notice,
specifying in writing such fraud or concealment." [See also,
Eden on Bankr. 411-, Owen on Bankr. 222; 5 Law Repo. 321;
6 Id. 261-272 r 2 How. Rep. U. S. 202.] These several provi-
sions are so perfectly clear, that it is not necessary to call to our
assistance any of the rules of construction which judicial deci-
sions have established for the interpretation of statutes. The for-
mer de<:lares, if the « bankrupt shall be guilty of any fraud, or
wilful concealment," &c.^ he shall not be entitled to a discharge
or certificate ; while the latter provides, that a discharge, duly
granted, shall, in all courts of justice be a complete discharge of
all debts, &c., proveable under the act, aad shall be pleaded as
a bar to allosuits brotl^it, &c., unless the saaoe may be impeach-
ed for fraud, or wilful jponcealment, &.c. Thus we see, that al-
though the statute contemplated a boon to the debtor, viz : a re-
lease from indebtedness, it exacted, on his part, perfect integrity,
in yielding up every thing that was liable to his debts. If this
was not done, but something was wilfully withheld, to which
the creditors were entitled, the fact of concealment is denounced
as a fraud, nnd upon its being made known, the Court was re-
JANUARY TERM, 1846. 85t
Mabry, Giller & Walker v. Hemdon.
quired to refuse its sanction to the bankrupt's discharge. And
if the proceedings are formally consumn^ated by a final decree,
and a certificate consequent thereon, it is competent for any court
of judicature, upon the fraud being established, to treat the cer-
tificate as a nullity. What other conclusion could be attained ?
The terms of that part of the act, we are now considering, are ex-
ceedingly comprehensive. It makes the discharge and certifi-
cate a complete discharge of all debts which were proveable
against the bankrupt, unless the same shall be -impeached, &c.
The restraint upon the effect of the discharge and certificate,
when superinduced by fraud, must be regarded as the antithesis
of the influence accorded to them when duly granted, and is quite
as potent as if the exception had been followed by an affirmative
declaration of their invalidity when successfully impeached. This
we think cannot be seriously questioned, nor do we understand
that it has been attempted in the argument at the bar.
We cannot understand by the terms " all courts of justice,"
and " any court of judicature whatever," that none other than the
federal courts are competent to entertain an objection to the va-
lidity of the discharge and certificate of a bankrupt. In employ-
ing words of most extensive application and import, upon an oc-
casion when every thing said, was, or at least -should have been
well considered, it cannot be intended that Congress designed to
convey a meaning much more limited than is expressed. The
fair and natural inference is, that as the discharge and certificate,
when duly granted, were effectual in all judicial tribunals, in
which they should be drawn in question, so they should be in-
valid in every Court in which the bankrupt was sued, and relied
on them as a bar, if impeachable for any one of the. causes for
which they are declared to be inoperative. If competent for
Congress to have withheld from the State Courts the rights to ex-
amine the validity of a bankrupt's discharge for extrinsic objections,
it is enough to say that this has not only notjieen done, but, that
the power has been conferred in terms of i^nequivocal significa-
tion. Whether the exercise of such a jurisdiction is incompatible
with the sh'ucturc of the federal government, and the powers ac-
corded to either of its departments, is an inquiry to which we may
devote some consideration before we close this opinion.
It was insisted that no issue could be made up in a suit brought
for the recovery of a debt, by which the validity of the bankrupt's
108 ' '
858 ALABAMA.
Mabry, Giller & Walker v. Herndon.
discharge could be controverted ; that in order to nullify it, it
must be impugned by a direct proceeding, alledging it to be ob-
noxious to some one of the objections prescribed by the act. This
argument, we think, is clearly indefensible. It is opposed to lan-
guage which is very explicit and free from ambiguity in itself.
The act, we have seen, expressly authorizes thebankrupt to plead
his discharge andcertificate, and declares that when duly granted,
shall they be a bar, unless impeached for fraud, or wilful conceal-
ment, ^c. The mere fact of interposing the plea is not a con-
clusive bar, but it is allowable for the defendant to reply by way
of avoidance, any state of facts which show that the bankrupt's
diaeharge is impeachable. In thus placing in juxta-position the
declaration as to the effect of the discharge, and allowing it to be
pleaded and proved, with the denial of its efficacy when impeach-
ed, we think the reasonable inference is, that in all cases where
the bankrupt relied on it as a bar, the opposite party may join
issue upon its validity.
It was undeniably allowable while the proceedings in bank-
ruptcy were in fieri, for the creditors of the bankrupt to object
to his discharge for any one of the causes designated in the fourth
section of the act, and the Court would direct an issue to be made
up to try the truth of the objection, if the facts were contro-
verted. The same section reiterates several of these objections,
and we have seen, makes the discharge void, when it is impeach-
ed, and any one of them is made apparent from the proof. How
can the invalidity be shown where it depends upon extrinsic
facts, otherwise than by pleadings interposed according to the
regular forms of proceedings, the introduction of evidence and a
verdict thereupon ? We cannot doubt that while it was the in-
tention of the act to accord to the discharge, when " duly grant-
ed," all efficacy and virtue, that it has also secured to the adverse
party the right to impeach it whenever it is set up as a bar to
the bankrupt's liabSity.
It has been held that an officer arresting has no power to dis-
charge a bankrupt, upon the mere production of his certificate,
and that if he do so, the Court will not stay proceedings against
him for an escape. [SherWbod v. Benson, 4 Taunt. Rep, 631.]
The Court has even refused to decide upon motion the effect of a
discharge under a foreign bankruptcy. [Quin v. Keefe, 2 H. Bl.
Rep. 553 ; Pedder v. McMaster, 8 T. Rep. 609 ; Philpotts v.
JANUARY TERM, 184G. 859
Mabry, Giller & Walker v. Herndon.
Reed, 1 B. & B. Rep. 13; Whittingham v De La Rieu, 2 Chilly's
Rep. 53 ; Earlier v. Languishe, Id. 55 ; Bampfield v. Anderson,
5 Moore's Rep. 331.] So it has been determined that the Court
will not discharge without giving the party arresting, time to
show that the certificate was fraudulently obtained ; and any of
the reasons mentioned in the statute may be given in opposition
to his dischnrge ; and wherever it is shown that the validity of
the certificate is to be disputed, the Court will not discharge in a
summary manner ; and it has, when necessary, directed the
commission to be tried on a feigned issue. [Eden on Bankr. 428,
and cases cited.] True, these citations are adjudicated cases up-
on the English bankrupt statutes, yet in principle they are strict-
ly applicable to the effect of the certificate, as declared by the
fourth section of our own act, and serve very satisfactorily to
show, that it is permissible to impeach it for any of the reasons
which impair its validity.
In Kittredge v. Emerson, (a case decided" by the Superior
Court of Judicature of New-Hampshire, in July, 1844,) the effect
of the proviso of the second section of the bankrupt act of 1841,
upon a lien acquired by the institution of proceedings in a State
Court, was elaborately and learnedly considered. The Court
there, speaking of the effect of the proceedings in bankruptcy,
upon suits pending against the petitioner, remarks, that where
the Court has jurisdiction of the cause and the parties, the suit
will not abate because the defendant has " filed a petition in
bankruptcy, nor by reason of his having obtained a certificate.
That certificate must be pleaded, that its validity may, in some
way, be contested. Had the plaintiff in this case replied that the
certificate was fraudulently obtained, no doubt seems to be ex-
pressed in Ex parte Bellows & Peck, that a judgment entered
upon a verdict finding such an issue in favor of the plaintiffs,
would be valid and binding upon parties and privies." [4 vol.
Am. L. Mag. 236-7 ; see Thompson v. Hewetl, 6 Hill's Rep.
254 : Sackelt v. Andross, 5 Hill's Rep. 327.]
We will now address ourselves to the consideration of the
question of the power of a State Court, to inquire into the validi-
ty of the bankrupt's discharge, or rather, whether there is any-
thing in the relation which the State and Federal Governments
bear to each other, which inhibits the Courts of the former from
the exercise of jurisdiction in such a case.
860 ALABAMA.
Mabry, Giller & Walker v. Hemdon.
In the eighty-second number of the Federalist, it is said, that
the only thing that has the semblance of confining causes of fede-
ral cognizance to the federal courts, is contained in the first sec-
tion of the third article of the constitution, viz : " The judicial pow-
er of the United States shall be vested in one Supreme Court, and
in such inferior courts as the Congress may from time to time or-
dain and establish." " This," says the learned author, "might
either be construed to signify, that the Supreme and subordinate
courts of the Union should alone have the power of deciding
those causes, to which their authority is to extend, or simply to
denote that the organs of the National judiciary should be one
Supreme Court, and as many subordinate courts as Congress
should think proper to appoint ; in other words, that the United
States should exercise the judicial power with which they are to
be invested through one Supreme tribunal, and a certain number
of inferior ones, to be instituted by them. The first excludes, the
lastadmits, the concurrent jurisdiction of the State tribunals: and
as the first would amount to an alienation of State power, by
implication, the last appears to me the most defensible construc-
tion."
But the doctrine of concurrent jurisdiction, it was supposed,
was only clearly applicable to causes of which the State courts
previously had cognizance. In respect to cases which grow out
of, and are peculiar to the constitution, it was said not to be equal-
ly evident. Further, says the author just cited, «I hold, that the
State courts will be divested of no part of their primitive juris-
diction, further than may relate to an appeal ; and I am even of
opinion that in every case in which they were not expressly ex-
cluded Fy the future acts of the national legislature, they will, of
course take cognizance of the causes to which those acts may
give birth. The judiciary power of every government looks
beyond its own local or municipal laws, and in civil cases lays
hold of all subjeGt^X)f litigation between parties within its juris-
diction, though the causes of dispute are relative to the laws of
the most distant parts of the globe. When, in addition to this,
we consider the State governments and the National government
as they truly are, in the light of kindred systems, and as parts of
one whole, the inference seems to be conclusive, that the State
courts would have a concurrent jurisdiction in all cases arising
under the laws of the Union, where it was not expressly prohi-
bited."
JANUARY TERM, 1846.
Mabry, Giller & Walker v. Herndon.
In Hunter v. Martin, 1 Wheat. Rep. 304, it was said that the
2d section of the 3d article of the constitution, enumerated two
classes of cases of which the courts of the United States are au-
thorized to exercise jurisdiction. In the first class the expres-
sion is, that the judicial power shall extend to all cases; but in the
subsequent part of the section, the word "a//" is dropped, seem-
ingly by ex industria. " From this difference of phraseology, per-
haps a difference of constitutional intention may, with propriety,
be inferred. It is hardly to be presumed that the variation in
the language could have been accidental. It must have been
the result of some determinate reason ; and it is not very difficult
to find a reason to support the apparent change of intention. In
respect to the first class, it may well have been the 'intention of
the framers of the constitution imperatively to extend the judicial
power, either in an original or appellate form, to all cases; and in
the latter class to leave it to Congress to qualify the jurisdiction,
original or appellate, in such manner as public policy might dic-
tate."
Congress may permit the State courts to exercise a concur-
rent jurisdiction in many cases; but those courts then derive no
authority from Congress over the subject matter, but are simply
left the exercise of such jurisdiction as is conferred on them by
the State constitution and laws. [See Martin v. WunVcx, supra;
Houston v. Moore, 5 Wheat. Rep. 27 ; 3 Story on Cons. 613 to
626 ; 1 Kent's Com. 370 to 379 ; The United'states v. Dodge,
14 Johns. Rep. 95; The United States v. Lathrop, 17 Johns.
Rep. 4 ; The United States v. Campbell, Hall's L Journal 113 ;
Sergt. Const Law, 272.]
In the exercise of the jurisdiction confided to the State courts,
and those courts of the United States (where the latter have not
appellate jurisdiction) it is plain, says Mr. Justice Story, that nei-
ther can have any right to interfere with, or control the opera-
tions of the other. " It has accordingly been settled, that no
State court can issue an injunction upon any judgment in a court
of the United States ; the latter having an exclusive authority
over its own judgments and proceedings. Nor can any State
court, or State legislature, annul the judgments of the courts of
the United States, or destroy the rights acquired under them."
[3 Story's Com. on Cons. 624-5; 1 Kent's Com. Isted. 382-7;
McKim v. Voorhis, 7 Cranch's Rep. 279.]
ALABAMA.
Mabry. Giller & Walker v. Hemdon.
We have stated the law thus at length in respect to the juris-
diction of the federal judiciary, showing in what cases those who
have claimed for it the greatest potency, assert its exclusiveness.
Instead of denying the right of the State tribunals to declare the
discharge and certificate of a bankrupt void for any one of the
reasons prescribed by the statute, the authorities very satisfacto-
rily establish such a power.
It is undeniably competent for Congress to declare a decree in
bankruptcy invalid, when irregularly or unfairly obtained, when-
ever and wherever it may be drawn in question ; to allow it to
be impeached for fraud, or other kindred cause ; and upon the al-
legation being established, to authorize all courts to pronounce it
invalid- The bankrupt act of 1841 has done this, almost in toti-
dem verbis. It is true that it might not be within the legislative
power of Congress to confer upon State tribunals the jurisdiction
of cases in bankruptcy from their initiation to their conclusion ;
but if this be so, a question we need not consider, it by no means
follows that the State courts should accord to the final decree
and certificate consequent upon it, a conclusive verity, when
Congress have declared that it shall be open to impeachment.
While the proceedings in bankruptcy were in fieri, the case was
one which grew out of an act of Congress, passed under the
sanction of the constitution ; but being concluded, the question is,
whether the certificate can avail the bankrupt so as to bar a reg-
ular proceeding against him for the recovery of a debt. If the
State courts have jurisdiction of the case, they must entertain
the defence ; because the right to do so, instead of being taken
away, is expressly conceded by the statute, the constitutionality
of which 071 this point, cannot be questioned. This can only be
done so as to administer complete justice by receiving the evi-
dence to impeach the discharge, upon an issue adapted to that
purpose.
There is certainly nothing in the State or federal constitution
which inhibits our courts from taking cogniaance of causes in
which it becomes necessary to consider the effect of an act of
Congress ; the more especially where Congress has not asserted
an exclusive jurisdiction, and the act is invoked by the defendant.
It is said,, in the number of the Federalist from which we have
already quoted, that the State courts, « in ^every case in which
they were not expressly excluded by the future acts of the na-
JANUARY TERM, 1846. 863
Mabry, Giller & Walker v. Hemdon.
tional legislature, will of course take cognizance" of the causes, to
which those acts may give birth." This concession is in har-
mony with all the citations we have made, and goes even beyond
what the present case requires. It cannot then, be necessary fur-
ther to amplify the point.
We have forborne to inquire whether, according to the princi-
ples of the common law, the discharge of a bankrupt can be im-
peached for fraud in obtaining it, when pleaded in bar to an ac-
tion by one who was not a party to the proceeding in bankrupt-
cy. See however, 13 Pick. Rep. 53; 4 Scam. Rep. 536; 3
Cranch's Rep. 300; 3 Phil. Ev. C. & H 's notes, 854 to 850,
898 ; Story's Conf. of L. 495, 503, and cases cited in notes ; 3
How. Rep. U. S. 751 ; 2 Stew. Rep. 151 ; 1 Kinne's L. Comp.
515-6 ; 5 Id. 1 17, in both of which the cases upon the point are
collected. If it is competent, without reference to the provisions
of the act of 1841, to impeach a certificate for fraud, is it neces-
sary to pursue the terms of the act, or may not a plea or replica-
tion, &c, be interposed alledging the invalidity of the certificate,
and particularly disclosing in what the fraud consists? The
ground upon which we have rested the right of the creditor to
contest the bankrupt's certificate, seems to us to be so unques-
tionable, that we are indisposed to inquire whether there is any
other course of reasoning which leads to the same result ; and
the manner in which it has been done in this case is in conformi-
ty to the statute.
We are inclined to think, that the plea which alledges that the
debt of the plaintifi'in execution, is of ^fiduciary character, was
bad. The objection to the plea is, that it states a legal conclusion
instead of specially disclosing the facts, that the court might de-
termine whether the debt sought to be collected by execution, was
founded upon a trust, such as is excepted from the operation of
the act.
It is objected that notice of an intention to impeach the bank-
rupt's discharge was not given until the commencement of the
term of the court to which the supersedeas was returned. With-
out stopping to inquire whether this be so, we are sure that it fur-
nished no cause for the refusal to entertain the defence to the pe-
tition. The act of Congress does not prescribe any time previous
to the trial within which notice must be given. If the notice
was not sufficient to allow the petitioner to procure the necessa-
804 ALABAMA.
Mabry, Giller & Walker v. Herndon.
ry evidence to sustain his discbtjirge, he should have applied for
a continuance; which would doubtless have been accorded to
him.
In Lockhart, et al. v..McElroy, 4 Ala. Rep. 572, it was deter-
mined, that an execution will be superseded upon the petition of
the defendant, if an unjust or improper use is attempted to be made
of it, although the execution be authorized by the judgment. This
being the case, the plaintitF in execution must be permitted to
controvert any material allegation of extrinsic facts contained in
the petition. The petitioner, for the purpose of avoiding the effect
of the judgment, and consequently perpetually superseding the
execution, set up his discharge and certificate as a bankrupt.
The act of Congress makes these conclusive, unless their validity
shall be drawn in question for certain causes which it specifies.
The defendant, by his petition, pleads his discharge in bar to pro-
ceedings on the judgment and execution ; the. plaintiff in execution
gives the notice provided by the act, and impeaches the discharge
and certificate, by admitting their existence, and affirming their
invalidity. We can conceive of no objection to this course of pro-
cedure on the part of the plaintiff — it is in our judgment sustain-
ed both by the letter and spirit of the act.
The requisition of a bond with sureties, by a statute of this
State, as a prerequisite to awarding a 5z//)erse(/erts, cannot in any
manner affect the right of the plaintiff in execution to impeach
the petitioner's discharge, any more than in another case, to show
that the grounds upon which the supej'sedeas was awarded could
not be supported.
If tlie dictum of Judge Story,in the matter of Bellows and Peck
7 Law Rep. 119, is to be understood as atiirming that where the
bankrupt pleads his discharge, the plaintiff cannot controvert its
validity in a ■State court, without first obtaining leave of the Dis-
trict court, we should certainly refuse to recognize it. But we
are disposed to think, that the learned Judge was speaking in re-
ference to a case in which the plaintiff in the State tribunal had
been enjoined from proceeding, by the District court, pending the
proceedings in bankruptcy.
The view we have taken of this case embraces all the points
now necessary to be considered. The result is, that the judg-
ment is reversed, and the cause* remanded.
JANUARY TERM, 1846. 865
Bradford v. Bayles, et al.
BRADFORD v. BAYLES, ET AL.
1. Where a party is already before the Court, and the suit is improperly dis-
missed, a writ of error is the proper remedy.
Writ of Error to the Circuit Court of Monroe.
Samuel Bradford commenced tiiis action, which is trespass,
under the statute, to try the title to the land described in the plead-
ings. His death was suggested at the spring term, 1843, and
Keturah Bradford, his executrix, made a party. The cause was
continued for several terms, and disposed of at the fall term for
1845, by this entry: "Death of Samuel Bradford suggested, and
the Court adjudged that the suit abate."
A bill of exceptions was taken by the plaintiff, which explains
the proceeding then had.
It was suggested the cause of action did not survive, and there-
fore, although the executrix was made a party at a former term,
the cause should be dismissed from the docket. Of this opinion
was the Court, and so ordered. The plaintiff excepted to this
ruling, and now assigns it as error.
F. S. Blount, for the plaintiff in error, cited State ex rel Na-
bors, 7 Ala. Rep. 459.
»
E. W. Peck, contra, insisted there was no judgment in the
cause, and therefore the writ of error was premature. The pro-
per course of practice is mandamus, to reinstate the case.
GOLDTHWAITE, J.— We think sufficient matter appears
for us to make out the consideration of the Court upon the fact
stated. Although this is a very informal entry of judgment, yet
no one can doubt its legal effect is to abate the suit, and this
opinion is fully confirmed by the bill of exceptions, which shows
that such was the intention of the Court.
Although when a party is dismissed out of Court, there are
some instances in which a mandamus may be the proper mode
109
866 ALABAMA.
Ohio Life Ins. Co. v. Ledyard, &c.
to reinstate himself, as it is where the amount in controversy is too
small to warrant a writ of error, yet in general he may redress
himself by writ of error. It will be seen the party had actually
been admitted to the suit, some terms previous to that at which
the abatement was ordered.
The case of State ex rcl Nabors, 7 Ala. Rep. 459, is in point,
to show that the suit could be revived, and we are constrained
to infer the proper party was made, till the contrary is shown.
As the Court erred in dismissing the suit, the judgment is re-
versed and the cause remanded.
OHIO LIFE INSURANCE AND TRUST COMPANY v,
LEDYARD ;
AND
THE BANK OF MOBILE v. SAYRE & LEDYARD.
1. Under our statutes of registration, actual notice of the existence of a deed,
is equivalent to the constructive notice afforded by registration.
2. The design of the statutes requiring registration, was to give notice, that
creditors, and purchasers, might not be deluded, and defrauded, and as to
all such, who have not notice in fact, the unregistered deed is void.
3. The creditors spoken of in the statute, are not creditors at large ; but a
creditor whose debt is liquidated, and a lien given on property by the
debtor for its payment, is protected by the statute, against prior unregis-
tered deeds, of which he had no notice.
4. One who purchases at a sale made by order of the Court of Chancery, fore-
closing a mortgage, without notice of a prior unregistered deed, is a pur-
chaser for a valuable consideration, within the meaning of our registry
acts.
5. A creditor is entitled to the benefit of all pledges or securities, given to,
or in the hands of a surety of the debtor, for his indenanity, and this, whether
the surety is damnified or not, as it is a trust created for the better secu-
rity of the debt, and attaches to it.
6. G., andS. & C, made a purchase of apiece of land of L., and executed a
mortgage to secure the purchase money ; afterwards, G. executed a deed
JANUARY TERM. 1846. 807
Ohio Life Ins. Co. v. Ledyard, &c.
of trust, by which he conveyed an undivided half of the land, for the pay-
ment of certain debts, under which a sale was ordered by the Court of
Chancery, the sale made, and the interest of G. purchased by one ignorant
of the unregistered moilgage of L — Held, that L. might enforce his mort-
gage against the residue of the land, for the debt remaining unpaid, and
that S. & C. must look to G. for their reimbursement.
Appeal from the Chancery Court of Mobile.
These causes were heard together, and present the following
state of facts.
In 1836, Lcdyard sold to Say re, Converse & Co., and Rufus
Greene, a lot of land in Mobile, and received a mortgage to se-
cure the payment of the purchase money, but failed to have it
recorded. All of the purchase money has been paid, except about
$2,000. After the forfeiture of the mortgage, Greene conveyed
his interest to R. G. Gordon, who conveyed to Henry Meyers,
who conveyed to James West. Converse conveyed his interest
to Sayre, who conveyed to the Bank of Mobile, an undivided
half of the lot, to secure debts due in 1839, and from thence to
1840, This mortgage was made in August, 1837. Ledyard
filed his bill to foreclose the mortgage. Greene, Meyers, and
Sayre, have been declared bankrupts, and P. T. Harris is the
assignee.
The Bank of Mobile, by its answer, denies all knowledge of
the existence of the mortgage of Ledyard, and alledgesthat it re-
ceived the mortgage as a security for a debt due from Sayre, of
$53,658 25, and that $26,390 75, is still due, for the payment of
which the mortgage is an inadequate security.
A supplemental bill and bill of review was filed by Ledyard,al-
ledging that the Ohio Life Ins. and Trust Co., hold one-half of the
premises described in complainant's mortgage, and charged that
it is subordinate to his right.
The Ohio Life Insurance and Trust Co. in its answer, claims
to be a purchaser at a sale of the Chancery Court of Mobile, under
the following state of facts : Rufus Greene in 1837, made a deed
to Robert G. Gordon, to indemnify Robertson, Beal & Co. upon
four notes, for the gross amount of upwards of $40,009, upon
which they were endorsers, two of which had been dishonored,
and the others were running to maturity : That the notes men-
tioned in the deed, were then held by C. B. & T. J. Mathews :
868 ALABAMA.
Ohio Life Ins. Co. v. Ledyard, &c.
That neither Mathews, Gordon, or Robertson, Beal & Co. had
any knowledge of the mortgage of complainant, when the deed
was executed : That upon a bill filed by Mathews, to subject the
property to the payment of the notes, by the decree of the Court,
the property was directed to be sold, and was purchased by the
Company for $18,000, which received the register's deed there-
for, on the 5th June, 1843. They deny all knowledge of the
complainant's mortgage. Ledyard was not a party to the bill.
It was admitted that Robertson, Beall & Co., and Greene, be-
came bankrupts in 1842, and left no property for distribution.
The Bank of Mobile also filed a bill to foreclose the mortgage
of Say re & Converse.
Evidence was taken, which is sufficiently noticed in the opinion
of the Court.
The chancellor was of the opinion, that the Bank had notice
of Ledyard's mortgage, when it obtained the mortgage of Sayre,
on the same property, and that the Ohio Life and Trust Compa-
ny had not established their claim as bona jide purchasers, and
decreed accordingly in favor of Ledyard.
These matters are assigned as error by the Bank, and the Life
and Trust Insurance Company.
Dargan, for the Life and Trust Company. — The allegationof
the bill, is, that the Company were purchasers with notice of
complainant's mortgage. Notice is denied, and it is admitted
there was none. Upon the bill then, no decree could be had
against the Company, which is not charged as a volunteer, or
purchaser without consideration.
The purchase under the sale by the master, invested the Com-
pany with all the rights of a creditor, and the fact that money
was not paid, but that the Company controlled the decree, is
wholly unimportant.
The rule, that a conveyance is void as to creditors, means as
to those creditors whose debts have attached on the property
before notice. [10 Leigh, 497; 1 Pick. 164; 1 Metcalfe, 202;
4thHalstead, 193.] ,. . ,
Phillips, for the Bank of Mobile, contended — That the Chan-
cellor erred in his conclusions from the proof in the cause, which
he insisted did not authorize the inference that the Bank knew of
JANUARY TERM, 1846. 860
Ohio Life Ins. Co. v. Ledyard, &c.
Ledyard's mortgage, when it obtained the niortgage from Sayre,
and examined the testimony at some length.
He further contended, that the " notice" spoken of in the act
of 1828, was notice by registration, and that no other kind of no-
tice was sufficient.
He also argued, that the words without notice, in the statute,
applied to purchasers only, and not to creditors — that the design
of the statute was only to assert the rule in equity. [4 Rand.
208.] That the Bank was a creditor, because it relinquished a
security for a pre-existing debt, which was tantamount to a new
credit. [2 Paige, 300 ; 4 Id. 215.]
Ledyard's mortgage was such an instrument, as the act of 1828
required to be recorded. [4 Ala. 473.]
Campbell, contra. — He examined at some length, the testimo-
ny, and insisted that it warranted the conclusion drawn by the
chancellor. [7 Porter, 182.]
He contended that the plaintiffs in error were not creditors ;
that where one obtains land in payment of a debt, he is a pur-
chaser and not a creditor. [2 Leigh, 84.]
A creditor within the purview of the act, is one who has ob-
tained a specific lien by action at law upon the property. [10
Leigh, 499.]
A mortgage of land given to secure a debt, as is the case here,
does not fall within any of our statutes of registration, except the
act of 1823, [Clay's Dig. 154, § 18,] which contains no provision
in favor of creditors. The act of the 15th January, 1828, refers
only to absolute deeds, and the act of the same session passed the
11th of the same month, only to deeds of trust. The design ofthp
act was to suppress frauds by embarrassed debtors. Mortgages
on real estate are the approved securities between solvent per-
sons.
A failure to record a deed under the act of 1823, avoids a
mortgage only as against a purchaser. [2 Stewart, 488 ; 1
Paige, 125 ; 2 Id. 217 ; 6 Id. 316 ; 11 G. & J. 314.]
The Ohio Life and Trust Co., and the Bank, are not purchasers
within the meaning of the statute, as they took the property in
payment of debts. The legal title is in Ledyard, and he has
equal equity, and in the absence of the statute, must prevail. [6
Ala. 639 ; 20 Johns. 647 ; 10 N. H. 266 ; 13 Wend. 605 ; 3 B,
870 ALABAMA.
Ohio Life Ins. Co. v. Ledyord, &.c.
Mon. G36 ; 11 S. & R. 388 ; 4 Paige, 215 ; 5 Id. 644; 6 lb. 310 ;
11 Wend. 534; 1 Dev. 103.J
Mathews had, at no time, an interest superior to that of Led-
yard ; he was not a party to the deed, though its object was the
payment of his debt. It was a voluntary conveyance, without
valuable consideration. Before the decree, he had no right to
the land. What did he get by the decree ? If he, or Gordon the
trustee, had not the legal estate, it did not pass by the master's
sale ; the purchaser at the sale, took their interest, and no more.
[1 Ala. 727 ; 20 Wend. 260.]
The receipt on the master's docket, is not the payment of a
valuable consideration. The security was not given to Mathews;
he did not contract for it, and Robertson & Beal, to whom it was
given, were at the time, discharged bankrupts, without any estate
to distribute. [6 Hill, N. Y.]
ORMOND, J. — The controversy in this case, arises between
a mortgagee of land, who failed to record his mortgage, and oth-
ers claiming the same lands by subsequent conveyances from the
mortgagor, without notice of the previous mortgage.
The unregistered mortgage was made by Sayre, Converse &
Co., to Ledyard, in April, 1836, and the mortgage of the same
parties to the Bank of Mobile, in August, 1837. The President of
the Bank has been examined as a witness, and admits that the
Bank, after it obtained the mortgage, and possibly at the time,
knew there was a previous incumbrance en the property, but
does not know whether it was the mortgage of Ledyard, or some
other incumbrance, of which the Bank had notice. Mr. Sayre
was also examined, and says that he is under the impression, the
officers of the Bank knew of the mortgage. That they did have
knowledge of its existence, is, in our judgment, the necessary pre-
sumption from their subsequent conduct.
It appears that Mr. Sayre, by the consent of the officers of the
Bank, applied the rent of the mortgaged premises in discharge
of Ledyard's mortgage, from 1838 to 1841, and was only pre-
vented from extinguishing the incumbrance by this process, by
the accidental falling down of the warehouse erected on the land,
which made it necessary to employ the rents in its reconstruc-
tion. This conduct on the part of the Bank, is a concession of
the prior right of Ledyard, and is indeed inexplicable on any
JANUARY TERM, 1840. 871
Ohio Life Ins. Co. v. Ledyard, &c.
Other hypothesis. It is probable, that the Bank did not know
that the prior mortgage had not been recorded, as it appears from
the testimony of Mr. Sanford, its President, that as soon as it was
ascertained that the mortgage had not been recorded, the per-
mission to pay over the rent to Ledyard was withdrawn; but
that its existence was known by the officers of the Bank, at the
time the mortgage of Sayre and Converse to the Bank was made,
is, in our opinion, the necessary inference from the conduct of the
Bank, taken in connection with the facts proved.
It is DOW contended, that no notice of the existence of a deed
required by law to be recorded, is available, but the notice af-
forded by its registration. We think it perfectly clear, that both
the acts of 1823, (Clay's Dig. 154, § 18,) and the act of 1828,
(lb. 255, § 5,) under one of which this deed must come, evidently "
contemplate, that actual notice shall be equivalent to the con-
structive notice afforded by the registration of the deed. The
language admits of no other interpretation; the whole object
and design of the statutes being to give notice of the existence of
the deed.
We come now to the consideration of the more difficult ques-
tion, whether the Ohio Life Insurance and Trust Co., are credi-
tors, or purchasers, for a valuable consideration, it being admitted
that it had no notice, either actual or constructive, of Ledyard's
prior incumbrance.
Rufus Green, who claimed to be the owner in fee, of an undi-
vided half of the same lot, covered by the unregistered mortgage
of Ledyard, executed a conveyance of the same, to R. G. Gordon,
upon the following trust. Gr6en was the maker of four promis-
sory notes, two for the sum of $10,000, each due at the date of
the deed, and two others for $10,900 each, payable eighteen
months after date, but not then due. Upon these notes, Robert-
son, Beal & Co. were indorsers, and to indemnify them as in-
dorsers, the deed was made, and upon the non-payment of the
notes within seventeen months from the date of the deed, the
trustee was authorized, and required, to sell a sufficiency of the
property conveyed by the deed, to pay oft' and discharge the
trust. It does not appear from the deed, who were the holders
of the notes, but by the testimony of Green, it appears that T. C,
Mathews held thetn at that time. Green, and Robertson, Beale
& Co. became bankrupt, and were discharged in 1842, leaving
872 ALABAMA.
Ohio Life Ins. Co. v. Ledyard, &c.
no property to be divided among their creditors. The Messrs.
Mathews filed a bill in Chancery, to obtain the benefit of the deed
made by Green, and obtained a decree for the sale of tha pro-
perty. A sale was made under the decree, and in 1843 the land
was purchased by the Ohio L. I. & T. Co., which sale was af-
terwards confirmed.
It is now strenuously urged, that the equity of Mathews be-
fore the decree, and under the deed, was not greater than that of
Ledyard, who was clothed with the legal title. That under the
sale made in virtue of the decree, no title passed, which was not
previously vested in the party against whom the decree was ob-
tained. That caveat emptor is the rule at a Master's sale.
In the case of Toulmin v. Hamilton, 7 Ala. Rep. 367, which,
upon this point, is in principle identical with this, we had occa-
sion to consider this question. It was there, upon great conside-
ration, held, that when a deed of trust was given to indemnify an
accommodation acceptor, the holders of the paper might resort to
the trust property for the payment of the paper when dishonored.
That is the precise predicament of this case. The deed of trust
was executed to secure, or indemnify, Robertson, Beale & Co.,
as indorsers of certain notes, which it appears by the testimony
of Green, had previously beeo given to T. & C. Mathews. The
rule as established by that case, is, that the creditor is entitled to
the benefit of all pledges, or securities given to, or in the hands of
the surety, for his indemnity, to be applied to the payment of the
debt. It does not in the slightest degree vary the case, that the
indorsers have become bankrupt, and have no estate fordistribution.
The right ofthe holderto the benefit ofthis security, doesnotdepend
upon the liability ofthe surety to be damnified ; it is because it is a
trust created for the better security and protection of the debt.
It therefore attaches to the debt, and those interested in it, may
affirm the trust, and enforce its performance. [Moses v. Murga-
troyd, 1 John. C. 129.] It is also to be observed, that the right
to sell vested in the trustee, did not depend upon the fact that the
indorsers of the notes were compelled to pay upon their indorse-
ment, but the trust was, to sell if the notes were not paid by Green
the maker, in seventeen months, and to pay and discharge the
notes.
It is certainly true, as contended, that upon a sale by the Mas-
ter, no title is acquired which has not been put in litigation, and
* JANUARY TERM, 1846. 873
Ohio Life Ins. Co. v. Ledyard, &c.
ndjudicated by the Court, the parties in interest being before it,
but we do notperceive, how this admitted principle affects this
question. When this deed of trust was made, Green had the le-
gal title to an undivided half of the lot ; upon this there was an
incumbrance in favor of Ledyard, but of its existence, neither the
trustee', nor any of the beneficiaries had notice, either actual or
constructive. It is therefore, as to them, as if it never had exist-
ed. In the language of the statute, it is " void," and being void,
no right can be derived from it, prejudicial to any right secured
by the deed of trust, which though ^os^erior in point of time, be-
ing received in ignorance of the existing unregistered incOm-
brance, is by the statute prior in right.
It is further urged, that although the payment of the debt to
Mathews, was the object of the deed, it was a voluntary convey-
ance, without valuable consideration, within the meaning of the
statute.
This objection has, to some extent been anticipated. It may
be conceded that the "creditors" spoken of in the act of 1828,
are not creditors at large, for in no just sense can a creditor whose
debt is liquidated, admitted to be just, and a lien given by the
debtor on a particular fund, for its payment, be considered a cre-
ditor at large. He is rather to be considered a purchaser, of
which the debt forms the consideration. The case of Liggat, et
al. v. Morgan, 2 Leigh, 841, is a direct authority, that such a
creditor is to be considered a purchaser, within the meaning of
the statute of the 13 Elizabeth. So in Coffin v. Ray, 1 Metcalfe,
214, it is said, "the attachment of real estate is considered as in
the nature of a purchase, and the attaching creditor affected with
notice of a prior conveyance, in the same manner as a purchaser."
To the same effect is Priest v. Rice, 1 Pick. 164, and Bryan v.
Cole, 10 Leigh, 500. The plain and obvious design of our sta-
tute, in requiring registration, is, to give notice that creditors, and
subsequent purchasers may not be deluded or defrauded ; and as
to all such, who have not notice in fact, the unregistered deed is
void ; any other decision would make the provision in favor of
creditors utterly fruitless.
But if we were to consider the prior unregistered incumbrance
as an equitable lien, and equal in dignity with the lien of a creditor
subsequently obtained on the same property, certainly the equity of
the creditor is superior, after he has obtained a decree for the en.-
110
874 ALABAMA. •
Ohio Life Ins. Co. v. Ledyard, &-c.
forcement of his lien,and has actually enforced it,by sale. In such a
case it cannot be doubted, that the purchaser would have, with the
legal title, the superior equity, as he would be literally a purcha-
ser for a valuable consideraiion without notice of the prior equity.
That is this case. The Ohio L. I. & T. Co. purchased at the sale,
made under the decree. \t is true, it does not appear that the
Messrs. Mathews have received the money, but it does appear
that the sale was confirmed, and the title has been made to the
company, and that the costs of the suit have been paid. This is
in effect, an admission by them, of the payment of the money, as
on no other hypothesis can the fact of their permitting the sale
to be confirmed, be explained. Nor is this question put in issue
by the bill. It is not alledged that the Life Insurance and Trust
Co., is not a bona fide purchaser, but that it was a purchaser with
notice of the prior unregistered deed. The decree in favor of
the Messrs. Mathews, is not before us ; their demand, to satisfy
which the decree was made, was for upwards of forty thousand
dollars, and as the maker and indorsers of the notes are all cer-
tificated bankrupts, without any estate to divide, as is admitted
upon the record, the sale of this property was their only means of
reimbursement, if indeed they were not, as is most probable, trus-
tees merely for the Life I. & T. Co.
The cases cited by the counsel for the defendant in error, from
Paige & Wendell, to be found on his brief, are based upon a prin-
ciple which does not obtain in this State — that the payment, or
discharge of a preexisting debt, is not a valuable consideration,
in the same sense, as paying money, or parting with property
would be. See also, Coddington v. Bay, 20 Johns. 637, where
this principle is asserted in reference to negotiable paper. This
doctrine is controverted in Swift v. Tyson, 16 Peters, l,.whei'e
this question was elaborately considered, and the New York au-
thorities denied to be law, and to the same effect is the decision
of this Court in the Bank of Mobile v. Hale, 6 Ala. Rep. 639.
The analogy between negotiable paper, and the question here
discussed, appears to be perfect, and is so considered in the New
York cases. Upon the whole, we are satisfied, that there is er-
ror in the decree, so far as it determines that the Ohio Life In-
surand and Trust Co. were not purchasers for a valuable con-
sideration.
The view here taken, renders it unnecessary to determine the
JANUARY TERM, 1840. 8T5
Ohio Life Ins. Co. v. Ledyard, &c.
question, whether a mortgage of lands is to be registered under
the act of 1823, (CJay's Dig. 154, § 18.) as maintained by the
counsel for the defendant in error, or under the act of 1828, (lb.
255, § 5,) as contended by the counsel for the plaintiff in error,
as we hold that the Life I, & T. Co. were purchasers for a valu-
able consideration, and therefore within the saving of both sta-
tutes. The decree of the Chancellor must be reformed, so as
to subject the undivided half of the lot claimed by the Bank,
to the whole amount of Lodyard's mortgage. The costs of this
Court to be equally divided between Ledyard and the Bank of
Mobile. The costs of the Court below to be paid out of the
fund. Let the cause be remanded for further proceedings.
ORMOND, J. — A motion has been made for a rehearing in
this case, and modification of the decree. The ground of our de-
cision, that the Bank of Mobile had notice of Ledyard's mort-
gage, when it obtained the mortgage of Sayre & Converse on a
portion of the same land, is, that the Bank has not attempted to
repel the inference arising from their permitting the rent of the
mortgaged estate to be applied to the payment of Ledyard's debt.
That the persons having the management of the Bank, should per-
mit this appropriation to be made for several yearg, without in-
quiry, is on its face incredible. It is then, material to consider,
that no attempt is made at explanation, that this yearly appropri-
ation was permitted by mistake. The only rational inference is,
that the only mistake the Bank was under, was in supposing that
the mortgage was recorded.
As to the decree. It is insisted, that Ledyard having lost the
right to look to the undivided half of the mortgaged estate origi-
nally owned by Green, he can only subject the residue of the es-
tate to the payment of half the debt now remaining due on the
mortgage.
By the mortgage to Ledyard, by Sayre & Converse, and
Green, the former acquired aright to satisfaction of his debt, out
of all and every part of the land. In what way has. this right
been impaired ? The failure on his part to record the mortgage,
certainly could not have this effect, because he was under no obli-
gation to record it. This may have been necessary to protect
him against creditors, and subsequent purchasers without notice,
but as between the parties to it, it is as valid to all intents and
876 • ALABAMA.
Mobile Branch Bank v. Hunt, et al.
purposes, as if recorded. . If by the omission to put the mortgage
on record, its lien is lost on a part of the land, it is not caused by
Ledyard, but by the improper conduct of Green, in again encum-
bering the land, without giving notice of the prior mortgage, and
if the whole burthen is thrown upon the other half of the land, it
is not the fault of Ledyard, who has done no act calculated to im-
pair his rights.
If then by the conduct of Green, the whole burthen is cast upon
Sayre & Converse, or those representing them, they will have
the right to call upon Green to reimburse them. This point was
in effect decided at the present term in the case of Andrews &
Brothers v. McCov,
THE BRANCH OF THE BANK OF THE STATE
OF ALABAMA AT MOBILE v. HUNT, EL AL.
1. Where a third person becomes the pnrchaser of the equity of redemption,
and afterwards pending a bill against the mortgagor for a foreclosnre, ob-
tains an assignment of the mortgage, he acquires all the title of the mort-
gagor, witli the incumbrance discharged ; yet he may (especially if the
mortgagee does not object,) prosecute the suit in the mortgagee's name,
to a decree of foreclosure and sale, for the purpose of more effectually se-
curing his title.
2. A report by the Master, of a sale under the decree of the Court of Chan-
cery, requires the confirmation of the Court, which can only be regularly
made after notice to the parties adversely interested, that they may show
cause against it.
3. Where a sale is made by the Master, in virtue of a decree, but, under a
misconception of the wishes and intentions of the parties in interest, the
sale may be set aside, if it has not been subsequently sissented to, or acqui-
esced in for sueh a longtime as to warrant the inference that it was assent-
ed to.
4. The remark of the President of an incorporated Bank, to a Master in Chan-
cery, who informed him that the sale of certain property in which the cor-
JANUARY TERM, 184G. 8-57
Mobile Branch Baok %HuDt, et aJ.
poration was interested, had been postpone^, that he had acted properly,
amounts to nothing more than the approbation of what the master had
done ; but it cannot be inferred that he was informed when the property
would be again offered ; that he regarded the Master's communication as a
notice, or approved a subsequent sale ; even conceding that the President,
in virtue of his generl powers, was authorized to act in the premises.
Appeal from the Court of Chancery sitting at Mobile.
The plaintiffin error, who is complainant, by its bill, states that
William Wallace, on the 26th February, 183G, executed to T. W.
McCoy and T. M. English, a mortgage of certain real estate, (par-
ticularly described,) situate in the city of Mobife, to secure to the
mortgagees one hundred and twenty-three thousand and nine hun-
dred dollars. Afterwards,the mortgagor conveyed parts of the mort
gaged property to several individuals, and the mortgagees con-
firmed the sales, so that the mortgage continued a lien upon the
residue only, consisting of a lot in front on the water, on which a
wharf has been erected and to which pertains water privileges.
About the 1st of April, 1837, the mortgagor conveyed all his
interest to the water lot, wharf, and water privileges, by deed to
John A.Campbell for the purposes therein expressed ; and Camp-
bell in virtue of the powers vested in him, did on the 28th Decem-
ber, 1837, convey the same to William Sayre and Wm. P. Con-
verse. Afterwards, on the 25th April, 1839, the grantees in the
last deed, conveyed the water lot,&c. to J. W.J. Pntchard,in trust
for the purpose of securing the complainant the payment of
forty thousand dollars, due from Sayre & Converse. It is further
alledged, that on the 23d March, 1842, Pritchard, under the au-
thority of the trust conferred upon him, conveyed the same pro-
perty to the complainant, who thereby became solely and exclu-
sively invested with the equity of redemption in the premises. To
show all which, the complainant refers to the several deeds and
conveyances above recited.
It is further alledged, that in June, 1841, McCoy &, English
filed their bill to foreclose the mortgage executed to them by Wal-
lace, for the water lot, wharf and water privileges, to which the
complainant, Sayre, and Converse were defendants. Soon after
the filing of that bill, the complainants therein, assigned their in-
terest in the mortgage from Wallace to the present complainant.
878 ALABAMA.
Mobile Bntflch Bank v. Hunt, et al.
' On the day of April, 1842, a decree of foreclosure and
sale was rendered on the bill filed by McCoy and English to pay
the sum ascertained to be due on the mortgage, &c. ; and under
the authority of that decree, the register did on the first Monday
in December, 1842, offer for sale the water lot, &c. At that sale,
Jonathan Hunt became the ])urchaser for the sum of three thou-
sand dollars, and received a deed for the property. Afterwards
Hunt was let into possession under an order of tho Court con-
firming the sale, and still retains the same.
It is alledged that the lot, &c. in controversy was worth thir-
ty-five or forty thousand dollars at the time Hunt became the
purchaser ; that the complainant had no notice of the sale, Jior
was any one then present to protect its interest. In fact it was
not until after the sale was confirmed that the complainant had
any notice that it had taken place. Further, the proceedings
throughout were conducted in the name of English and McCoy,
the complainant never haying instructed the register to sell un-
der the decree ; but gn the contrary, when the register offered
the premises for sale at a previous day, he was stopped by its
president, and no authority afterwards given him to sell the
same.
The complainant further states, that its interest was known to
Hunt at the time of his purchase, and that he did not expect to
get an indefeasible title : that conceiving it had a right to redeem
under the act of January 1842, it has tendered to Hunt the sum
of three thousand dollars, with ten per cent, thereon ; offered to
pay him for all improvements erected by him since he took posses-
sion, and to pay all the expenses incident to a conveyance from
him to the complainant. The purchase money paid by Hunt
has not been withdrawn from the register ; and notwithstanding
this and all the facts stated, Hunt refuses to convey the premises
to the complainant.
Hunt, McCoy, English and Pritchard are made defendants,
and the bill concludes with a prayer as follows, viz: that the de-
cree on the bill of English ajid McCoy against the complainant,
and Sayre & Converse, the sale made thereunder, and the deed
of the register to Hunt be set aside and held for nothing, and the
complainant restored to its rights in the premises: That the water
lot, &c. be sold, and -the proceeds applied to the debts due the
complainant, secured by the sevei'al liens of which it is the proi
JANUARY TERM, 1846. 879
Mobile Branch Bank v. Hunt, et al.
; ; •
prietor ; or that it be permitted to redeem the same upon paying
such charges as are proper, which they hereby offer to pay. If
this relief cannot be granted^ that then the complainant be per-
mitted to redeem the premises under the act of January, 1842,
upon paying Hunt the amount of his purchase money, with ten
per cent, thereon, and paying for such improvements as have
been erected by him since he has been in possession. Further,
that such other relief as maybe proper and equitable, be granted.
Hunt answered the bill, admitting the mortgage from Wal-
lace to McCoy and English, the filing of the bill, and the decree
of foreclosure and sale thereon rendered. Respondent also ad-
mits that Sayrc & Converse had some interest in the property,
but has no knowledge, information or belief in respect to it; ad-
mits that the complainant had some interest in the same by the
assignments of its debtors, but has no other information in respect
thereto, than what is imparted by the bill. •
Respondent further admits, that.he made the purchase of the
premises in question at a sale made by the register of the Chan-
cery Court, that he paid the entire amount of the purchase mo-
ney, and received a deed, under the impression that the sale was
bona fide, and that he was receiving an unconditional title. He
is informed and believes that the property was advertised for sale
by the register at his own motion, and upon its having been of-
fered, and no agent of the Bank appearing, lie then withdrew it:
afterwards the president of the Bank approved what he had
done, and directed him to aduertise anew ; and at the next sale
day respondent became tl\^)urchaser.
If the register was not autblrized to sell, or in any manner
violated the instructions of the Bank, the respondent is, and was
unconscious of it, and that he paid his jnoney under the impres-
sion that the sale was made in confcu'mity to the wishes of those
interested in the mortgage. It is prayed that the answer may be
considered as a demurrer, pursuant to tlie statute regulating the
practice in chancery.
The cause was submitted for hearing on the bill, answer and
proofs, having been taken for cofessed as to McCoy and Eng-
lish. The chancellor was of opinion that,the complainant had no
right 4o redeem under the act of 1842, tPfat, that statute did not,
by its terms, become operative, ujijtil after th«*decrce in favor of
McCoy and English was rendered ; and consequently could not
880 ALABAMA.
Mobile Branch Bank v. Hunt, et al.
affect the proceedings directed by it. Further, that the charge
of negligence and misconduct in the sale, which is the only re-
maining ground upon which the interference of equity was asked,
is not sufficient to annul the sale ; to authorise such an order,
there should be some unfair practice, or those interested should
have been surprised without fault, or negligence on their part.
After confirmation the sale will not be set aside, unless fraud can
be imputed to the purchaser, which was unknown to the parties
interested, when the sale was confirmed. Neither of the grounds
stated, it was believed, were shown to exist. Thereupon, it was
ordered and adjudged that the bill be dismissed at the complain-
ant's costs.
E. S. Dargan, with whom was A. Fox, for the appellant,
made the following points. 1. That as Pritchard was not made
a party to the bill fifed by McCoy and English, Hunt should be
treated as a trustee for the creditors, for whose benefit P. held
the property in question, or their assignees ; consequently the
bill in the present case, in the aspect in which it is framed, should
have been sustained, and relief administered. [1 R. & Mylne's
Rep. 741 ; Story's Eq. Plead. 171-177 ; 6 Ves. Rep. 573-5 ; 2
Johns. Ch. Rep, 238 ; 3 Id. 459.]
2. Tlie complainant was entitled to redeem under the act of
1842, no contract w^ould be impaired by permitting it, and con-
sequently no provision of the State or Federal Constitution vio-
lated. [2 Story on Cons. 250 ; 4Wheat. Rep. J97-200.]
3. No one can complain that hi^ights are affected by a sta-
tute, unless it operates against Hl^i, although in some sense it
may impair the obligation of a contract. [8 Cow. Rep.
542-579.]
4. Inadequacy ofprice — the failiire of the register, or Hunt
todiscloseto the complainant what had been done — the retention
of themoney by thfe'fornfSr, until after confirmation of the sale : the
manner in which Hunt's agent obtained possession, believing at the
time he purchased, that he acquired a redeemable estate, should
induce the Court to set aside the sale. [4 Johns. Ch. Rep.
122 ; 9 Johns. Ch. Rej). 679 ; see also 6 Porter's Rep. 432 ; 1
Cow. Rep. 622.] .
5. True, the titM^of a purchaser has been .sustained, althpugh
the judgment or decree under which the sale took place was pre-
JANUARY TERM, 184G. 881
Mobile Branch Bank v. Hunt, et al.
viously satisfied ; but there the sale must be fair and bona fide,
and for a full and valuable consideration. [6 Porter's Rep. 432.]
In the present case, nothing can be claimed from the fairness, of
the purchase, or the fullness of the consideration. [4 Dall. Rep.
221 ; Brown's Rep. (Pa.) 193 ; 3 Ves.jr. Rep. 170: 2 LitLR.
118; 3 Cow. Rep. 189-193.J
6. To the second and third points made, the appellant's coun-
sel cited the following authorities. [4 Wheat. Rep. 122; 2 Pel.
Rep. 413; 3 Id. 290; 8 Id. 88-110; 11 Id. 539, 540; 3 Story's
Con. 247; 3 Mason's Rep. 88; 12 Wheat. Rep. 370; 1 Bald.
C. C. Rep. 74; 2 How. Rep. 613; 5 Cow. Rep. 542,579 ; 4
Yerger's Rep. 10 ; 5 Id. 220-240 ;] —And contended that the o-
mission to make Pritchard a party to the bill was not cured by
the conveyance of the title vested in him jyendente lite. True,
the Bank thereby acquired the entire interest in the mortgaged
property, but this fact could only appear by an amendment of the
bill.
7. McCoy and English admit that as it respects themselves,
their mortgage is satisfied ; Hunt succeeds to their rights with
the understanding that the title he acquired was subject to the
redemption law of 1842, and it would be a fraud now to permit
him to claim more under his contract. Besides this, is it com-
petent for Hunt, a stranger to the mortgage, to insist that the
rights of the mortgagee have been impaired?
J. A. Campbell, for the appellee. — There is nothing in the re-
cord which'iadicates that'ilfte .complainant did not desire a sale of
the property under the dec^^in favor of McCoy and English.
That suit, after th^ complainan| purchased the interest in the
mortgage, was prosecuted for tiie'HL)encfit, and under the direction
of the complainant. It is apparent fronj the letter of Fisher, one
of the counsel of McCoy and English, and the testimony of the
president of the Branch Bank, that th©^ postponement of the sale
was known to the Bank and its attornies, and assented to with the
understanding that the property would be ofTcred again.
The purchaser at a judicial sale is not required to look beyond
the decree ; this itself is conclusive of indebtedness, and though
the fact -be otherwise, or the debt has been extinguished since the
decr^e^et the purchaser's title will not be aflected. [2 Sch. &
111
«A'
^
882 N ALABAMA.
Mobile Branch Bank v. Hunt, et al.
Lef. Rep. 566 ; 11 Sergt. & R. Rep. 430 ;' 6 Porter's Rep. 219-
38; 7 Id. 552; 1 Ala. 356.] •
l^he fact that the mortgage was assigned before the decree
was rendered, can make no difference, as no change was made
in th& parties, and the proceedings were consummated in the
name of the mortgagees. McGehee v. Boren, cited from 6 Por-
ter, shows that a payment by the debtor will not affect the title
acquired "by a purchaser under the decree. That there are cases
in whicli. a sale under a judicial decree will be set aside, is not de-
nied, [See^Ala. Rep. 256; 26 Wend. Rep. 143; 10 Paige's
Rep. 24.] '>^.
The sale was m!»de in the ordinary mode, upon notice — four
months afterwards, upon motion of the counsel of the then com-
plainants, a confirmation is ordered, possession delivered, and a
deed executed ; all this, it is conceived, should prevent the Court
from administering the relief prayed. [5 Porter's Rep. 547 ; 7
Id. 549 ; 1 Ala. Rep. N. S. 356 ; 2 Id. 256 ; 2 Johns. Ch. Rep.
228,]
Inadequacy of price, in the case of a public sale by a judicial
officer, conducted according to legal forms, is no evidence that
the purchase was not fairly made. In such case, proof should be
adduced of fraud or other circumstance affecting its validity.
There is not the slightest pretence for saying that the defend-
ant Hunt, or his agent, at the time of his purchase, had notice
that McCoy and English had parted with their interest in the
mortgage and debt secured. In fact, there is nothing in the re-
cord which casts the imputationofa»^'j^</es, either' directly, or
by inference, upon Hunt, or the mWfer who executed the decree.
Even conceding that the mastei: was informed of the interest
of the Bank in the decree, ^tilhhfe was not bound to give it no-
tice, and ask whether he should sell as it directed. But if such
notice was necessary, then we insist that it was given to the pre-
sident of the corpoVation,*and that its attorney was also advised
of the day for which the sale was advertised.
Smith purchased a» the agent of Hunt, and for any thing ap-
pearing to the contrary, he was a special agent. If he supposed
that he was purchasing a title redeemable under the act of 1842,
Hunt would not be, affected by his opinion. But it seem* that
he had no opinion oft the subject. ^
The statute took effect in July, 1842, and the decree was ren-
^
«*
JANUARY TEUM, 1846. 883
Mobile Branch Bank v. Hunt, et al.
dered in April preceding, and the question is, can the statute af-
fect the decree, or in any manner impair the legal efficacy it pos-
sessed at the time it was- rendered ? Is it competent for the Le-
gislature to modify, even by general legislation, judgments- and
decrees already rendered. Such an enactment would obstruct
the course of justice, by hindering and delaying its administration.
The bill of rights is "declaratory of common law principles, and
was intended to maintain the rights of ttie citizen from the inva-
sion or interference of the government. [2 B. Monr. Rep. 308.]
The decree of foreclosure, if the debt is not paid by the ap-
pointed day, so that a sale takes place, is a divestiture of the mort-
gagor's title, and an unconditional conveyance is to be made to
the purchaser, upon his compliance with the terms of sale. Can
the Legislature thus change the character of the decree, to the
prejudice of the mortgagee or his assignee, any more than it can
impart validity to a fraudulent assignment, or make an absolute
conveyance conditional? [11 Mass. Rep. 396.J The act in
question must be limited to sales made under mortgages and
deeds of trust executed after it went into operation, [1 Ala. Rep.
N. S. 226 ; 2 Ala. Rep. 56 ; 1 How. Rep. U. S. 31 1 ; 2 Id. — ;
4 Litt. Rep. 34-64; 12 Wheat. Rep. 313; 7 Monr. Rep. 544-
587
It is entirely competent for Hunt to object to the application of
the statute, for the reason we have already shown, viz : that it
did not enter into the decree, and it was not competent for the
Legislature to give it a* retrospective operation.
The failure to make Pritchard a party, is an unavailable objec-
tion— the rights of the parties- to the decree are concluded by it.
[2 B. Monr. Rep. 436.]
COLLIER, C. J. — The conveyance from the mortgagor,
Wallace, to Campbell, from the latter to Sayre & Converse, from
them to Pritchard, and from him to the complainant, invested the
Bank with the equity of redemption in the premises in questitm ;
and when McCoy and English transferred their interest as mort-
gagees, the complainant was clothed with all the title that Wal-
lace previously had. McCoy and English having disposed of
their lien as incumbraticers, could have had no further induce-
ment to prosecute the suit they had instituted, than merely to see
that it was so terminated as not to subject them to costs. Their
884 ALABAMA.
Mobile Brancli Bank v. Hunt, et al.
assignee might, at least, if they did not object, have continued its
prosecution for the purpose of more effectually securing a title by
a foreclosure and sale. It is possible that this purpose might
have been effected, and it is difficult to conceive of any other that
could have prevented its dismissal.
We will consider the case upon the hypothesis that in adver-
tising and selling the property, the register was endeavoring ho-
nestly to discharge his duty ; for there is nothing in the record
to warrant the imputation oi mala fides. It is unnecessary to in-
inquire how judicial sales are conducted by a master in chancery
in England, or whether it is his duty to inform the parties, or their
solicitors, of the time when the bidding will be opened and closed:
suffice it to say, that it is, in many respects, essentially different
from the course of procedure in this country. [See Bennet' Pr.
162 to 167 ; 2 Smith's Ch. Pr^c. 178-9 ; Collier v. Whipple, 13
Wend. Rep. 233-4, by Maison, Senator ; Collier v. The Bank of
Ncwbera, 1 Dev. & Bat. Eq. Rep. 328.]
According to the practice of the English Chancery, some of
the reports of a master are complete as soon as they are filed,
and do not require confirmation by the Court. But there are
others which involve a question of law, or of fact, upon which the
Court may be called upon to give a legal decision, and of this de-
scription, is the report, allowing the highest bidder at a sale under
a decree, to be the purchaser. This latter class of reports, it is
said, must be confirmed by orders nisi and absolute, before any
proceedings can be regularly taken upon them, and until this is
done, no " consequential directions upon it," can be ordered. [2
Smith's Ch. Pr. 358 ; Scott v. Liv?sey, 1 Cond. Eng. Ch. Rep.
467.] Bennet, in his practice in the master's office, 167-8, thus
states the mode of proceeding, viz : " The sale having been com-
pleted, the purchaser, in case he shall be a willing one, procures
the report of the master of his having been the purchaser at the
sale, or the solicitors for the vendor may, if it be delayed by the
purchaser, obtain this report. When obtained, the party who pro-
cures it, having had it duly filed at the report office, and an office
copy thereof taken, may on the next seal after the date of the
report, move oi petition for an order nisi, to confirm such report:
copies of this having been served on the clerks in Court of all the
proper parties in the cause, and no cause shown within the usual
time, the report of his being the purchaser is confirmed abso-
lutely."
JANUARY TERM, 184G. 885
Mobile Branch Baok v. Hunt, et al.
The act of 1841, "to regulate the practice in the Courts of
Chancery in this State," enacts, that "unless exceptions have been
filed to the report of the Master, the same shall be confirmed by
the Court, after two days notice." [Clay's Dig. 355, § G5.] And
the fifty-first rule for the regulation of the practice in Chancery,
provides, that "the rules of the English Court of Chancery, not
inconsistent with the statutes of this State, and the rules and de-
cisions of this Court, sa far as consistent with the institutions of
this country, are hereby adopted as rules of practice in Courts of
Chancery in this State." [Clay's Dig. 618.] The rules which
prescribe the mode of proceeding, in order to confirm the Mas-
ter's report of a sale, are certainly in harmony with our decisions,
at least so far as they require a notice to be given to the parties
interested, or their solicitors, and are not opposed by any conside-
ration of policy. Our rules are silent as to the manner in which
the order shall be obtained, and if the case is not embraced by
the act of 1841, recourse must be had to the English practice.
In the case at bar, there is no pretence that notice was ever
given, that a confirmation of the sale, and consequent order to let
the purchaser into possession, would ever be moved for. The
Register, in his deposition, states that the complainant has never
received the proceeds of the sale, and that he never gave it any
information about the sale, either before or after it was confirmed.
Under this state of facts, the confirmation cannot be sustained —
notice, or something which the law regards equivalent, is in gen-
eral Q.n essential pre-rcquisite to judicial action; and where a
Court assumes to act without it, its decisions are merely void.
This being the case, the order of confirmation .cannot be allow-
ed to prejudice the complainant's rights, but we must consider the
application to set aside the sale, as if that order had never been
made.
The manner of proceeding in order to open the biddings, after
a sale has been made under a decree of a Court of Equity, either
by a party to the cause, or a stranger, as well before as after con-
firmation, is fully pointed out by the elementary writers, upon the
Chancery practice, and occasionally stated in an adjudged case.
[2 Smith's Ch. Prac. 236, et post-, Bonnet's Prac. Ill, et post;
2 Har. <fc Gill's Rep. 346 ; 13 Wend. Rep. 224.J But it is unne-
cessary here to consider how this result is effected ; for the point
has already been examined by this Court. In Littell v. Zimtz, 8
886 ALABAMA.
Mobile Branch Bank v. Hunt, et al.
Ala. Rep. 256, we said, "when a stranger is the purchaser at a
mortgage sale, it will not be set aside for mere inadequacy, no
matter how gross, unless there be some unfair practice at the sale,
or unless those interested are surprised without fault or negligence
on their part." " But where the mortgagee is the purchaser, and
the debt secured by the mortgage is not discharged by the sale,
no reason is perceived why the bidding should not be opened
once, upon the offer of a reasonable advance on the former sale,
together with the purchaser's costs and expenses, which should
be deposited in Court." The reason for the distinction between
the purchase by a stranger, and the mortgagee, may perhaps be
considered well founded, but as it does not form an element in
our judgment, in the present case, it need not be here noticed. It
is however conceded, that " the right to set aside a sale made by
an order of the Court of Chancery, when a proper case is pre-
sented, must of necessity be an attribute of that Court,as the same
power is exercised by a Court of Law, when its process has been
abused, and the power of a Court of Chancery cannot be in-
ferior."
In the Mobile Cotton Press, &c. v. Moore & Magec, 9 Porter's
Rep. 679, we considered at length the right of a Court to inter-
fere summarily, where ajieri facias issued by its clerk had been
executed irregularly, &c.; and made these deductions from the
authorities there reviewed, viz : "1. A party injured by the im-
proper execution ofajlen facias may obtain redress, on motion
to the court from which the writ issued. 2. That a sale of land
will be set aside where the sheriff is guilty of a mistake, irregu-
larity, or fraud, to the prejudice of either party, or a third person.
3. So the misrepresentation or fraud of a purchaser, furnishes
just ground for invalidating the sale." Again, we say, "consider-
ing the case upon the facts, which are not denied by the answers,
and we think it clearly appears, that the sale was made by the
sheriff, either under a misapprehension of duty, or else a miscon-
ception of the arrangement between the parties, which they en-
deavored to communicate to him. In either view, the result
would be the same — the sale should be set aside."
It was said, in Jackson v. Roberts, 7 Wend. Rep. 83, that " a
party who may be injured by the mistake of a sheriff, can have
relief by a summary application to the court under whose autho-
rity the officer acts, or through the medium of a court of equity."
JANUARY TERM, 1846. 887
Mobile Branch Bank v. Hunt, et al.
So in Arnott & Copper v. Nichols, 1 Har. & Joiins. Rep. 471, it
was held that a court possesses an equitable control over its exe-
cutions, and may, on motion, quash the return of a sheriff. And a
sale made en masse of divers lots of ground, situated in the same
town, but detached from each other, was set aside on m'otion ;
the court remarking that such a sale w^s prima facie void, and he
who seeks to sustain it, must show its justice and expediency.
[Nesbit v. Dallam, 7 Gill & Johns. Rep. 512.] In that case it
was showp that the property did not sell for more than one third of
its intrinsic value; upon which the court observed, that "such a dis-
parity between the price and value of the property sold, furnishes
intrinsic evidence of the irregularity, impropriety, or unfairness
of the sale; and connected with any of the several omissions of
duty, or indiscretions of the sheriff, leaves not a shadow of dis-
cretion, as to vacating this sale."
Mere inadequacy of price, it has been held, is not^er se a suf-
ficient cause for setting aside a sale of lands under execution, but
"coupled with other circumstances it may be. [Stockton v. Ow-
ing, Litt. Sel. Cases, 256 ; Tripp v. Cook, 26 Wend. Rep. 143.]
In Knight v. Applegate's Heirs, 3 Monr. Rep. 388, the clerk
omitted to notice on i\\e fieri facias, a credit for about half the
judgment entered at its foot, and the sheriff raised the entire sum
by the sale of land, the title of the land it was considered would
not pass to the purchaser. See also. Collier v. Whipple, 13 Wen.
Rep. 224 ; Tripp v. Cook, 26 Wend. Rep. 143.
In the case at bar, we have seen that the complainant became
the sole proprietor of the premises in question, so far as the title
was vested in the mortgagor, or the mortgagees and the assignee,
who claimed under the latter. This title, for any thing shown to
the contrary, was complete, and it may, if necessary, be so as-
sumed. The complainant then, may be considered the only par-
ty in interest to the cause and decree in favor of McCoy & En-
glish, by which the equity of redemption under the mortgage ex-
ecuted by Wallace was foreclosed.
It sufficiently appears, we think, that the sale by the Master
was made under a misconception of the wishes and intentions of
the complainant. True, the master was not informed what were
the intentions of the complainant, yet as there was no other per-
son who appeared to have an interest in tlie premises, we can-
not think that the want of such information forms an objection
888 ALABAMA.
Mobile Branch Bank v. Hunt, et al.
against the power or propriety of setting aside the sale. We
think the application of the cpmplainant comes within the princi-
ples recognized in the Mobile Cotton Press, &e. v. Moore & Ma-
gee, 9 Porter's Rep. supra.
The remark made by the Master to the President of the Bank,
immediately after the postponement of the sale, when the proper-
ty was first offered, and the reply of the President, amounts to
nothing more than a declaration by the latter, when informed of
the fact, that there could be no objection to what the Master had
done. It cannot certainly be inferred that the President was
aware of the time when the premises would be again offered for
sale, or that he regarded the communication of the Master as
intended to operate as a notice, or concurred in what he after-
wards did.
But if the argument of the defendant's counsel be defensi-
ble upon this branch of the case, what consequences result
from it 1 Is it competent for the President of a banking corpo-
ration to take upon himself the right to control the collection of
its debts, or direct the sale of its property ? [Spyker v. Spence,
at the last term.] To confer such power, must not a resolution,
or some other equivalent act of the directory be shown ? The
view we take of the facts, makes it unnecessary to decide this
point.
It is perfectly clear that the assent of the complainant to the
sale by the master, cannot be inferred from any act or omission
subsequent to that time ; for it does not appear that any notice
was ever given to the complainant, or that it was otherwise in-
formed that a sale had been made.
There is no pretence for inferring that complainant was in-
formed of what had been done, and assented to it ; consequently
it is not necessary to consider within what time proceedings should
ordinarily be instituted to set aside a sale by the master. From
what has been said, it results that the decree must be reversed,
and the cause remanded.
JANUARY TERM, 1846. 890
Sheffield & Co. v. Parmlee.
SHEFFIELD & Co. v. PARMLEE.
1. When the charge of the Court assumes that the tranfer of a note is bona
fide for a full consideration, and the evidence is such as to led to. this
conclusion, if believed by the jury, it is no error.
2. Where the defendants remitted a bill, indorsed by them, to a correspon-
dent house, to whom they were then indebted, with instructions to credit
them in account, and that house procured the bill to be discounted, and
credited the remitters with the proceeds, and advised them of the facts ;
these circumstances constitute a sufficient consideration for the indorse-
ment, to enable the correspondent house to maintain an action on the bill,
when subsequently paid by them as indorsers, against the remitters.
3. And a holder to whom this house indorsed the bill, after its maturity, and
subsequent to its being taken up by them, is not affected by a set off
then held by the defendants against tlieir correspondents.
Error to the Circuit Court of Mobile.
Assumpsit by Parmlee, as indorsee of a bill of exchange,
drawn by J. C. Dubose, on and accepted by Isaiah Dubose, in
favor of Goodman, Miller & Co. who indorsed it to Gayle &
Bower, and they to the defendants, who indorsed it to J. R. St,
John & Co, and they to the plaintiff. The bill is for the sum of
$5,300, dated 18th February, 1837, and payable at Charleston,
ninety days after date.
At the trial, upon the issues of non-assumpsit, set off, and pay-
ment, the plaintiff read the bill of exchange, indorsed as described,
in evidence, as well as evidence of its protest, and notice to the
defendants. The plaintiff then proved by a witness, who was a
clerk for J. R. St. John & Co. in 1837, that the business carried
on by them, was an exchange, or general business, and Sheffield
& Co. transacted the^ same kind of business at Mobile. These
two houses drew on each other as occasion required, in carry-
ing on their exchange business, neither house charging the other
any commissions. The account of Sheffield & Co. with St.. John
<fe Co. during the year 1837 stood as follows : • - • . .
112
990 ALABAMA.
f
Sheffield & Co. v. Paxmlee,
On the 1st January a credit of $20,715 55
« IstFebruary, adebit of 16,062 67
« 1st March, « 21,293 54
« 1st April, ♦♦ 15,864 64
« 1st May, " 8,512 54
« 1st July, " 3,292 54
And this last item yet continues open.
The bill of exchange in suit was remitted by Sheffield & Co,
in a letter dated 7th February, post marked 22d February, 1837,
addressed to St. John & Co. at Augusta, Georgia, with instruc-
tions to credit them in account. The bill was offered by St. John
&, Co. for discount, to the Georgia Rail Road and Banking Co ,
who discounted it, and the witness carried the proceeds to the
credit of Sheffield & Go's account. After the protest of the bill,
for non-payment, and its return to the Banking Company, seve-
ral demands were made of St. John & Co. for payment, but they
could not take it up without making greater sacrifices than they
felt disposed to submit to, and the Banking Company threatened
a suit against Sheffield & Co. St. John & Co. supposing the
drawer and acceptor to be responsible men, and to avoid being
sued themselves, and to prevent the Banking Company from go-
ing on Sheffield & Co. induced the agent of the plaintiff' to take it
op. It was supposed, at the time, that Parmlee would have all
the names upon the paper bound to him for the payment of it,
and it was then considered, that he took it out of bank for the
honor of all the parties. This was the understanding of the wit-
ness at the time, and it was then believed the acceptor would pay
it without a suit. The witness was positive that the confidence
of St. John& Co. in the ability of the acceptor, induced them to
get Parmlee to take it out of bank, and also, that they then did
not anticipate that any of the other parties would have to be pro-
ceeded against. The draft never came to the possession of St.
John & Co. after they passed it to the bank.
The defendant put in evidence the deposition of the cashier of
the Gkiorgia Rail Road and Banking Company, in which it is sta-
ted, the bill was discounted by that bank and sent to Charleston
for collection. On the 22d September, 1837, it was taken up by
D. W. St. John, one of the firm of St. John & Co. On the 14th
September, 1S37, the bank, by letter, informed Sheffield &, Co. it
would be constrained to institute a suit, if satisfactory arrange-
JANUARY TERM, 1840. v 891
Sheffield & Co. v. Parmlee.
merits were not made. In answer to this, under date of 25th Sep-
tember, Sheffield &, Co. expressed their intention to call on the
other parties to see what could be done, and to communicate
the result. Sheffield had previously, on the 25th of April, in a
letter, signed by him individually, informed the bank of the con-
templated suspension upon all drafts purchased for St. John &,
Co. of New York, New Orleans, Savannah and Charleston, and
expressed his intention to endeavor to procure additional security
from the drawers an(fl indorsers of such bills.
They also put in i\\e deposilion of J. R. St. John, one of the
firm of J. R. St. John & Co., who stated the firm of St. John &
Co. to consist of himself and D. W. St. John. They did busi-
ness as brokers, and had offices in New York and Augusta, Ga.
as well as elsewhere. The office in Augusta was kept by D.
W. St. John, and that at New York by the witness. St. John
&. Co. at the maturity of the bill in suit, were indebted to Shef-
field & Co. in a sum greater than the amount of the bill, and have
been ever since until the discharge of the witness under the bank-
rupt law. D. VV. St. John died in August, 1838. St. John «&
Co. had no right to claim payment of the bill sued on from the
defendants, for the reason that they were creditors of the firm to
a larger sum; and in no event had St. John & Co. a claim on
Sheffield & Co. for the payment of more than half of the bill, as
it was bought on joint account.
In answer to cross interrogatories this witness states, the hou-
ses of St. John & Co. and Sheffield & Co. were not connected
in any transactions, except in doing a joint account business in
bills of exchange, notes, &c., between the house of St. John &
Co. in New York, and Sheffield &:.Co. at Mobile; but the busi-
ness which was done between Sheffield & Co. and the offices of
St. John & Co. in places other than New York was not done on
joint account. Sheffield & Co. however, would sometimes trans-
mit funds intended for the house of St. John & Co. New York,
through their other offices. They were interested in each others
transactions so far, that any profits that might arise upon the
joint account transactions, were to be equally divided, as well as
the losses, between the two houses. The houses were not, in
point of fact, partners, nor mutually interested in each other's
gains or losses, any farther than as before stated. The witness
was unable to state upon what consideration the bill was remit-
S92 ALABAMA.
Sheffield & Co. v. Parmlee.
ed by Sheffield & Co., to the office of St. John & Co. at Augus-
ta, or what was the state of accounts with that office at the time.
Much other testimony was given by this witness, as from infor-
mation and belief, but this was all stricken out and excluded by
the court. r.
On this state of proof the court charged the jury, that if the de-
fendants remitted the bill to the house of St. John & Co. at Au-
gusta, as agents for collection, and they put the bill in bank, and
after it became due, took it out of bank, the plaintiff could not re-
cover, but if the defendants remitted the bill to St. John ^ Co.
their names being indorsed on the back, and St. John ^ Co. in-
dorsed their names on it to the bank, raised money on it, and af-
ter it was due paid it out of their own funds, and then transferred
it to the plaintiff, after it became due, then the plaintiff could re-
cover, notwithstanding St. John ^ Co. were indebted to the de-
fendants in a larger amount, growing out of separate transac-
tions.
The defendants prayed the court to instruct the jury, that if
St. John 4* Co, were indebted to them in a larger amount than
the bill, at the time of the transfer to the plaintiff, then the plain-
tiff could not recover. This was refused, and the defendants
excepted, both to the charge given and the refusal to charge as
asked. It is assigned that the court erred in both particulars.
Dargan, for the plaintiff in error, insisted —
1. That the charge given, relieved the jury from weighing the
evidence, and deciding the conflict between the witnesses. In
fact, the charge is based upon the supposition, that if the facts
stated by the defendants' witnesses are true, the plaintiff is yet en-
titled to recover.
2. Assuming the evidence for the defendant to be true, the
plaintiff is not entitled to recover, because every indorsement of
a bill is a distinct contract, and when a bill is transferred after its
dishonor, the holder takes it in the same plight and condition as
his immediate indorser held it. If his immediate indorser can
maintain no action, the indorsement imparts no right to the in-
dorsee. [12 John. 159.] St. John ^ Co. have paid nothing to
Sheffield ^Co. for their indorsement. The bill was discounted
by the bank, St. John <f- Co. received the proceeds, and after-
wards took up the bill, thus standing in relation to Sheffield <^
JANUARY TERM, 1846. 893
Sheffield & Co. v. Pannlee.
Co. precisely as they stood before ; during the whole time they
were debtors of Sheffield & Co.
3. Sheffield & Co. having received nothing for their indorse-
ment, it is without consideration, and this is a sufficient defence
against a holder, who acquires his title after maturity. If the
entry of a credit to Sheffield & Co. is considered a consideration
sufficient to enable St. John & Co. to maintain an action, then
under the proof as to the state of accounts, the law will deem the
indorsement paid as soon as the bill was taken up by St. John
4- Co. [Chitty on Bills, 436, 8 ed. and notes.]
4. The payment of a bill by the drawer, after its maturity is a
discharge of a mere accommodation acceptor. [Story on Bills,
422, § 99.] Now are not Sheffield ^ Co. as between them and
St. John ^ Co. entitled to be considered as mere accommodation
indorsers?
5. The debt due from St. John ^ Co. to the defendants is a
good set off*, and is not avoided by the transfer of the bill to the
plaintiff: [Bridges v. Johnson, 5 Wend. 343 ; 5 Pick. 312 ; Ran-
ger V. Cary, 1 Mete. 369 ; 4 Green, 92.] If under these decis-
ions, the case of Robinson v. Breedlove, 7 Porter, 541, is to con-
trol, then the distinction stated in McDuffie v. Darne, 11 N. H.
244, that it is incumbent on the holder to show that he gave va-
lue for the bill, must obtain. Here there is no such proof, and
therefore the defendants were entitled to a verdict. [Woodhall
V. Holmes, 10 John. 231 ; Wardell v. Howell, 9 Wend. 170.]
Campbell, contra, argued, that the precise question involved
here, was determined in Robinson v. Breedlove, 7Poter, 541.
The rule declared in that case, is conceded on all sides, to be
that of the English courts. [Chitty on Bills, 220 ; 43 En. Com.
L. 61.
The weight of authority in the American courts is to the same
effect. [6 N. H.470; 11 Verm. 70; 6Cowen, 693; 10 N. H.
366 ; 10 Conn. 30, 55 ; 2 Bailey, 298 ; 1 Hill S. Car, 1 ; Bank v.
Hann, 3 Harrison, N. J. 223.]
The case cited from 5 Pick. 312, is on the construction of the
Massachusetts statute of set off", and so considered in 1 Mete.
369. Our statutes have received constructions in Stocking v.
Toulmin, 3 S. 4* P- 35, and Kennedy v. Manship, 1 Ma. Rep.
894 ALABAMA.
Sheffield &. Co, v. Parmiee.
43, in both of which cases it was held, that the statute gives no
right to set off a demand against an intermediate indorser.
As to the bona fides of the consideration paid by the plaintiff for
the bill, no charge was asked, therefore it is immaterial to con-
sider whether the law is correctly held in the case cited from 1 1
N. H. 244. The evidence of one of the witnesses was, that the
plaintiff took the note out of bank, and of the other, that St. John
took it out, but there was no dispute before the jur}', that the
plaintiff took it either from St. John or the bank for a valuable
consideration. The charge assumes that it was transferred to
the plaintiff, and if the question at issue was its bona fide s,^ spe-
cific charge in explanation should have been requested. The
rule of this decision is questionable, as will be seen from Bank v.
Hann, 3 Harrison, N. J. 223.
GOLDTHWAITE, J.— 1. It is our uniform course to con-
strue the charge of a court in connection with the evidence be-
fore it, and the questions raised. In the court below there was
a discrepancy in the testimony of two of the witnesses, with re-
spect to the person by whom the bill was Taken from the bank ;
one of them asserting it was taken up by the plaintiff, at the so-
licitation of St. John ^ Co. and the other stating the same act as
performed by a member of that firm. It is not easy to perceive
what difference there could be in the result, whether the plaintiff'
furnished St. John & Co. with the money, for them to take up
the bill, or whether he took it up with his own money at their so-
licitation, if he was to hold the bill for his security, as the condi-
tion of his advancing the money. However this may be, it is
evident the instructions to the jury were given in view of these
different statements ; and although the charge assumes a broader
ground than is covered by the evidence, yet that is no reason for
reversal, if, as given, it is free from legal objection. It assumes,
that if the bill was paid by St. John 4* Co. with their own funds,
and afterwards transferred to the plaintiff, he was entitled to re-
cover upon the legal effect of the evidence before the jury. If
the question as to the consideration and bona fides of the transfer
of the bill to the plaintiff, had been expressly raised before the ju-
ry, the testimony before them, ifjbelieved, was certainly sufficient
to wan-Sttit the conclusion, that the full sum was paid by the plain-
tiff. One of the witnesses states the circumstances under which
JANUARY TERM, 1846. 895
Sheffield & Co. v. Parmlee.
the plaintiff became the holder of the bill. St. John ^ Co. were
unable to take it up, without making greater sacriffices than they
were willing to do ; but induced the plaintiff to take it up for them.
The inference that he paid or lent them the money, is entirely le-
gitimate ; the more especially, as a single question to the witness,
if the matter was otherwise, would have removed the difficulty,
or elicited the necessary explanation.
If the charge had been asked directly upon the effect of this ev-
idence, the case would then be within the influence of the rule
laid down in Carson v. The State Bank, 4 Ala. Rep. 151, and
Dearing v. Smith, lb. 431. Many more cases to the same effect
might be cited if necessary, but these, as settling the rule in this
court, are quite sufficient. This conclusion relieves us from any
further examination of the position, that no consideration for the
transfer is shown by the evidence; but it is proper to add to what
has already been said, that we do not decide the question, how
far a defence of this nature could be insisted on without a spe-
cial 'plea, asserting the transfer to be colorable, and insisting on
the set off against the indorscr.
2. The questions before us are thus narrowed to the considera-
tion passing to Sheffield ^ Co. for their indorsement of the bill ;
and the set off insisted upon by them against St. John 4" Co. As
to the first, it is asserted that no consideration passed, and the
proposition is advanced, that when a bill is transferred after its
maturity, the holder can maintain no action upon it, when his im-
mediate indorser cannot maintain one. If this proposition is un-
derstood as confined to the original validity of the bill, or of the
indorsement, independent of any defence arising out of other
transactions, it is unnecessary to controvert it ; because we think
that is not the condition of this case. The bill, indorsed by Shef-
field ^ Co., then debtors to the house in Augusta, was transmit-
ted to St. John <^ Co. with instructions to credit them in account.
This firm indorsed the bill, procured it to be discounted, placed
the proceeds to the credit of Sheffield & Co. and advised them of
the facts. Here the money went directly to the use of Sheffield
& Co. and there seems to us no grounds whatever for the pre*
tence that the indorsement was without^onsideration. If St
John & Co. were now suing on it, and these facts were shown,
could their right to recover be gainsayed, independent of the
set off?
896 ALABAMA.
Sheffield & Co. v. Parmlee.
3. The other, however, is the material question, and it seems to
be concluded by other decisions of this court. It will be remem-
bered that we have two distinct classes'of paper, the one negoti-
able, or rather assignable merely, by virtue of our statutes ; and
the other negotiable at the common law. Independent of our
general statute allowing sets off of mutual debts, that which ren-
ders promissory notes assignable, provides that the defendant shall
be allowed the benefit of all payments, discounts, and sets off pos-
sessed against the same, previous to notice of the assignment.
In Stocking v. Toulmin, 3 S. & P. 35, this statute was held not
to let in the right of set off against an intermediate holder of a
note, whether he derived his title by assignment or otherwise;
and the evils supposed likely to arise out of a different construc-
tion are fully considered. In Robinson v. Breedlove, 7 Porter,
543, a similar question arose, but in relation to a note payable to
bearer, which previous decisions had held to be negotiable with-
out the aid of the statute. We then conformed to what seems to
be the unquestioned rule of the English courts ; and, in analogy
with the previous decision of Stocking v. Toulmin, held that the
fact of becoming the holder of a negotiable instrument, after its
maturity, did not subject the holder to a set off against the payee.
Even if we were now dissatisfied with these decisions, it is too
late to correct them, as they have long furnished a guide to the
commercial transactions of the State. It is conceived, however,
they are well sustained by the weight of authority, as well as by
the reasons on which they are based. In England, as before ob-
served, the rule never has been seriously questioned. [Bur-
roughs v. Moss, 10 B. & C. 558.] It obtains in Connecticut,
New Hampshire, Vermont, New Jersey, and South Carolina ;
Robinson V. Lyman, 10 Conn. 30; Stedman v. Jelleund, lb. 55:
Chandler v. Drew, 6 N. H. 469 ; 11 Verm. 70 ; 2 Bailey, 298;
1 Hill S. C. 1 ; Bank v. Hann, 3 Harrison.] In Massachusetts a
different practice prevails, (Sargent v. Southgate, 5 Pick. 312,)
induced, it is said, by a liberal construction of her statute of set off.
[Ranger v. Cary, 1 Mete. 369,] In New York, the earlier de-
cisions seem to have been adverse to the rnle adopted by us ; (see
the cases cited in Bridges v. Johnson, 5 Wend. 342;) but these
were departed from in Johnson v. Bridges, 6 Co wen, 693, which
decision was afterwards aifirmed on a divided court of errors.
[See Bridges v. Johnson, before cited.] The legislature then in-
JANUARY TERM, 1846. «»7
Tumipseed v. Crook, Adm'r, et al.
terposed, and restored by statute the previously recognized rule.
It is highly probable the same subject has received the considera-
tion of the courts in other States, but v^^e have confined oui; exami-
nation chiefly to the cases cited, considering this point as controlled
by our previous decisions.
The result of our examination of the record, is the affirmance of
the judgment.
TURNIPSEED v. CROOK, ADM'R, ET AL.
1. When it appears by the allegations oftlie bill, that the complainant is
seeking relief against the defendant, in another bill, for the same cause of
action, the bill will be dismissed, whether such previous suit is, or is not
then pending.
Error to the Chancery Court of Benton.
The bill was filed by the plaintiff in error, and alledges, that
in the year 1835, he held as his own property, two notes on one,
Allen Elston, amounting to $1,100. That Samuel F. Clauson
(defendant's intestate,) being anxious to make a profit by tltc pur-
chase, and sale of a tract of land, (which is described,) applied to
complainant for the notes of Elston, to enable him to make the
purchase ; whereupon it was agreed between him and complain-
ant, that Clauson should purchase the land with the notes, and
as soon as he could make sale thereof, he would return .to com-
plainant the amount of the notes, and also pay complainant one-
half the profit that might be realized by a sale of the land. That
Clauson received the notes upon this agreement, and with -them,
together with $1,400 of his own money, purchased the land.
That some time alter the purchase, Clauson could have Sold the
land for $8,000, but refused to sell it, and declared that he intended
to keep it for his own use. These facts did not come to complain -
113
898 ALABAMA.
Tumipseed v. Crook, adm'r, et al.
ant's knowledge until 1842. That the land has smce greatly di-
minished in value, and that Clausen, upon application to him to
sell the land under the contract, denied the agreement as here
stated, and refused to execute it.
The bill further alledges, that on the 4th September, 1839,
the complainant filed a bill in chancery against Clauson and
others, for the settlement of certain partnership accounts, between
himself, Clauson and others, in which bill the transaction here
narrated, was inserted, which was done under the ad vice of coun-
sel, to avoid multiplicity of suits, as it was possible that the
chancelloi-, under that bill, would also determine the rights of
complainant, as well under said contract, as under the partnership
transactions. That the bill was objected to for multifariousness,
and overruled by the chancellor, on the ground that relief was
not prayed under the agreement, but that it was stated in expla-
nation of the partnership transactions.
The heirs and representatives of Clauson are made defendants,
and the prayer of the bill is for such relief in the premises as the
nature and circumstances of the case may require.
The chancellor, on motion, dismissed the bill, from which this
writ is prosecuted.
T. D. Clarke, for plaintiff in error, insisted,
1. That although the agreement was not in writing, relief could
be afforded.
. 2. That equity would regard Clauson as holding the land in
trust for the benefit of complainant, to the extent of his interest.
[2 Story, 449, § 1206 and 1207 ; 2 Ves. & B. 388 ; 7 Vesey,
453, 425, 435 ; 1 Cox, 165 ; 3 M. <fe S. 562; 3 Mason, 347, 360;
3 Bibb, 15; 2 Johns. Ch. 409; 1 R. & M. 53; 3 Hayw. 253; 4
J. J. M. 593 ; 2 Eq. Dig. 475, § 43, 62 ; 4 Bibb, 102.]
W. P. Chilton. — This is a parol agreement to buy a particu-
lar tract of land, and is within the statute of frauds. There is no
partnership alledged — no loss could be charged upon the com-
plainant. Nor can any trust be raised by imphcation of law, as
the frame of the bill is not designed to present that question, but
i&for a sale of the land, and division of the profits. The Court
will not go beyond the averments of the bill.
JANUARY TERM, 1846. 809
Tumipseed v. Crook, adm'r, et al.
ORMOND, J. — Waiving the question, whether the bill states
such a contract as could be enforced, not being in writing, and
relating to the purchase and sale of lands, we think it sufficiently
appears by the bill, that the complainant at the time his bill was
filed, was seeking relief against the defendants, in a bill filed by
him against the defendants and others, upon the claim here insist-
ed on. It was moved to dismiss that bill for multifariousness,
which the chancellor refused, upon the ground that the complain-
ant had properly brought it to the notice of the Court, as a por-
tion of the partnership effects there sought to be settled, which
had gone into the hands of Clauson, the ancestor of the present
defendants. It is too late now for him to contend, that it was
more advantageous to him, to consider it as a contract between
him and Clauson, in which the partnership had no interest. In
that aspect of the case his bill for a settlement of the partnership
accounts was multifai'ious, and it was only by affirming the com-
plainant's view of it, that it was not an individual contract, be-
tween himself and Clauson, but was in substance an allegation
merely, that theElston note was partnership property, and hav-
ing been received by Clauson, it was right he should be charged
with it, and account for it, that the bill could be sustained.
These facts being admitted by the bill, it cannot be sustained,
as the complainant might, if this were to be tolerated, recover
twice upon the same cause of action. Although not necessary, it
may be proper to state, that the bill filed by the complainant for
settlement of the partnership accounts, has been before us at the
present term, and in the account there stated, Clauson was charg-
ed with these notes as partnership property. The result how-
ever would be the same, if the bill was still pending. The same
matter here attempted to be introduced, being there put in issue,
must be there determined.
The decree of the chancellor dismissing the bill, is affirmed.
900 ALABAMA.
Carlos, use, &c. Vi Ansley.
CARLOS, USE, &c. v. ANSLEY.
1. The mere right of property in chattels, unaccompanied with the posses-
sion, cannot be levied on and sold under ajieri facias, where the posses-
sion is holden honafide, adversely to the defendant in execution.
2. Where a surety against whom, with the principal, a judgment is rendered,
points out the jwoperty of the latter to the constable, and upon its being
levied on and offered for sale, produces a mortgage on the same property,
executed by the principal for his indemnity, and forbids the constable to
sell, in consequence of which he purchased the property at about one eighth
of its value : Afterwards a fieri facias against the principal upon another
judgment was levied on the same property, a claim interposed by the sure-
ty, and an issue made up to try the right : Held, that the bona fides of th'e
claimant's purchase should have been referred to the jury, and if found
against him, the property should be subjected to the plaintiff's execution.
3. At a sale under execution of the principal's property, it is competent for
the surety to purchase, although the judgment and fi^ri facias may be
against them jointly.
Writ of Error to the County Court of Macon.
A fieri facias was issued from the County Court of Macon, on
the 10th of September, 1844, at the suit of the plaintiff in errgr,
against the goods, and chattels, &c. of John Bedell and Thomas
M. Robinson ; which writ was levied upon a negro riian named
Harry, as the property of Robinson, on the 24th December^ 1844,
a claim was interposed by the defendant in errgr, and a bond ex-
ecuted, with surety, to try the right pursuant to the statute. An
issue being made up as required in such cases, the cause was sub-
mitted to a jury, who returned a verdict for the claimant, and
judgment was rendered accordingly.
On the trial, a bill of exceptions was sealed at the instance of
the plaintiff; from which it appears, that before a lien attached in
his favor, the slave in question was levied on by a constable,and re-
gularly sold, according to law. At that sale, one Sampson Lanier
became the purchaser, for the sum of fifty dollars, as the agent of
the claimant, and with money furnished by him. The sale was
made under a ^. fa. against the property of Robinson, and the
JANUARY TERM, 184C. 901
Carlos, use, &c. v. Ansley.
claimant, as his surety in several forthcoming bonds, amounting
to the sum of one hundred and fifty dollars ; all which were
paid off by the claimant. There were many persons present
when the slave was sold, and the sale in all respects regular, yet
fifty dollars was the highest bid made for him. The claimant
took possession of the slave in July, 1844, and retained him until
the levy was made, in December of that year.
When the levy was made by the constable, the claimant point-
ed out to him the slave in question, as the property of Robinson ;
and when he was offered for sale, the claimant was present,
forbid the sale, and exhibited a paper, which he said was a mort-
gage on the slave.
The proof tended to show, that these acts and declarations of
the claimant, caused the slave to sell at so small a sum, and but for
them, he would have sold for four hundred dollars, or thereabout.
The mortgage was dated in January, 1844, and was pronounced
void by the court; because it professed to be made for the sole
purpose of securing the claimant against all liabilities he might in-
cur by becoming the surety for Robinson ; which he stipulated to
become in all cases when desired by the. latter.
It was shown that the claimant became the surety for Robin-
son for about three hundred and fifty dollars — part of which he
had paid, and the balance would have to pay. Robinson, at
the time the mortgage was executed, was indebted beyond his
ability to pay.
T^he court charged the jury — 1. That the mortgage was void.
2. That if the slave in question was in the adverse possession of
the claimant, when the levy was made, then the levy was irreg-
ular, and they should find for the claimant.
Thereupon the plaintiff's counsel prayed the court to charge
the jury — 1. That if by means of the fraudulent mortgage, the
claimant became the purchaser of the slave for less than he oth-
erwise would have sold for, then he acquired no title by bis pur-
chase, and they should find the property subject to the execu-
cution; which charge the court refused. 2. That if the claimant
bought the slave at a sale unde'r execution, to which he was a
party defendant, then his purchase created no change of title;
which charge was also refused.
3. The court then charged the jury, that if the claimant pur-
chased the slave in question, at a sale by a constable, made in
903 ALABAMA.
Carlos, use, &c. v. Ansley.
conformity to the directions of the law, and took and retained
possession under such purchase, then he. held adversely to the
defendant in execution.
To the charges given, with the exception of the first, and to
those refused, the plaintiff excepted.
Cocke, and S. Williams, for the plaintiff in error.
S. F. Rice, for the defendant in error, cited 4 Ala. Rep. 321,
402, 442 ; 6 Ala. Rep. 690, 894 ; Horton v. Smith, 8 Ala. Rep.
73 ; 4 Litt. Rep. 273.
COLLIER, C. J. — It may well be questioned, whether a mort-
gage made avowedly for the purpose of securing the mortgagee
against advances made infuturo, may not be supported, if it was
executed in good faith. [Stover v. Herrington et al. 7 Ala. Rep.
142.] But as this question, though made upon the record, is not
presented for revision, we decline considering it.
In Wier v. Davis and Humphries, 4 Ala. Rep. 442, it was
held, that an execution against the goods and chattels of a party,
could not be so used as to transfer a mere title unaccompanied by
the possession ; that such a power would be liable to abuse from
collusive arrangements, by which a person out of possession, and
with a doubtful title, would substitute another in his pbce, clothed
with the more imposing title of purchaser, under a sheriff's sate.
Added to this advantage, the possession itself would be changed
by the seizure, and transferred to the purchaser. "We appre-
hend," say the court, that "it is well settled, that the mere right
of action of a defendant in execution to personal property, is not
the subject of a levy." This case is cited with approbation in
Horton v. Smith, 8 Ala. Rep, 73, where it is also added, that the
bona Jides o( the adverse possession is always a question for the
jury; "if this is wanting, the transfer, whether by sale or execu-
tion, will be inoperative."
We will not undertake to pass judgment upon the acts and
declarations of the claimant, in directing the slave to be levied on,
then appearing on the day of sale, exhibiting his mortgage, and
forbidding the constable to proceed, in consequence of which the
slave sold for about one eighth of the sum he would otherwise
have commanded. But the existence of these facts are of such a
JANUARY TERM, 1846. 908
Caller v. Vivian, et al.
Character, that it should have been referred to. the jury, to inquire
whether the claimant was influenced by integrity of purpose ; or
whether his intention was not to defraud the creditors of Robin-
son, by purchasing the slave at a depreciation. If the claimant
used his mortgage with the intention to produce either of these re-
sults, then he cannot be allowed to derive any advantage from
his purchase. One or more of the charges withdrew the ques-
tion of fraud from the jury, and supposed that the mere fact of an
adverse possession by the claimant, whether acquired in good
faith or not, made the subsequent levy irregular and unauthoriz-
ed. In this we have seen that the Circuit Judge misapprehend-
ed the law. See Horton v. Smith, supra.
The fact that the claimant was, as the surety of Robinson, a
joint defendant in the Ji. fa. did not take from him the right to
purchase the property of his principal, when sold to satisfy it.
We can conceive of no reason why his rights in this respect
should be restricted ; especially when by allowing a joint defend-
ant to become a competitor, at a sale under execution of his co-
defendant's property, he may the better protect his own interests,
without injuriously affecting the plaintiff' m execution, or others.
Without adding any thing more, we have but to declare, that
the judgment is reversed, and the cause remanded.
CALLER V. VIVIAN, ET AL.
1. Where the holder of a note agrees to transfer a judgment obtained by
him against the maker, if the indorser will confess a judgment for the sum
for which he was liable, his subsequent refusal to transfer, is no ground to
file a bill to compel him to do so, in the absence of tlie allegation by the
indorser, that he has paid the judgment so confessed ; as the payment of the
money, and not the form of confession, is the essence of the contract
2. The discharge by the holder of a note, of slaves of the maker sufficient to
pay the debt, seized under an attachment at his suit, does not operate in law
or in equity to relieve the indorser.
904 ALABAMA.
Caller v. Vivian, et al.
Writ of Error to the Court of Chancery for the first District
The case made by the bill is this :
; in November, 1836, the complainant purchased from .Flavel
Vivian, who was the defendant's intestate, three slaves, at the price
of 83,100, and in payment therefor indorsed to said Vivian, a note
made- by one Bullock, for $4,280, which was at maturity, on the
11th April, 1837. It was agreed between the parties, that when
this note should be collected by Vivian, he would pay to the com-
plainant the difference between the sum colleated and the price
of the slaves. When the note became due, it remaining unpaid,
Vivian commenced a suit against Bullock, in the Circuit Court of
Mobile county, and recovered judgment in his own name. Whilst
this suit was pending, it was understood Bullock was in failing
circumstances, and intended to remove his slaves out of the Uni-
ted States, information of which the complainant caused to be
communicated to Vivian's attorney, who thereupon procured an
attachment against the property of Bullock, which was levied on
several slaves belonging to him of value more than sufficient to
satisfy the debt due by said note. Soon after this levy, the at-
torney of Vivian caused it to be discharged, without the know-
ledge or consent of the complainant, and the slaves being return-
ed to Bullock, he has since removed with them to Texas, by which
the complainant has wholly lost his debt. .
After it was ascertained that Bullock would not pay the note
in any reasonable time, if ever, and the complainant being indor-
ser of the note, and liable to Vivian for the price of the slaves,
paid in cash a portion of the debt, and afterwards confessed a
judgment in his favor for about $1,800. This payment was made
and judgment confessed upon the express agreement that the one
against Bullock should be tranferred to the complainant, and pla-
ced entirely under his control. Vivian died in 1839, and the de-
fendants were soon afterwards appointed his administrators.
The complainant applied to Thacker Vivian, one of the defend-
ants, and the active manager of the estate, to transfer the judgment
against Bullock, which he refused to do. The defendants attempt-
ing to coerce the judgment, confessed by the complainant, he files
the present bill, praying that it may be set aside, and that the mo-
ney paid by him to the intestate in his life-time, may be re-
funded, and for general relief.
JANUARY TERM, 1846. 905
Caller v. Vivian, et al.
The defendants answered the bill, and evidence was taken by
the complainant, bat it is unnecessary to set out the answer, or
the testimony, as the bill was not heard on these matters, having
been dismissed for want of equity. The dismissing the bill is
assigned as error.
Phillips, for the plaintiff' in error, insisted —
1. That Caller was entitled to be considered as a surety for
Bullock, and the attachment of the slaves as a security for his
benefit, the release of which operated as a discharge of the ha-
bility. [Hayes v. Ward, 4 Johns. Ch. 130 ; 3 Stew. 9 ; lb. 160;
1 Stewart, 11.]
2. The agreement upon which Caller confessed the judgment
was, that Vivian should assign the judgment previously obtained
against Bullock.
Lesesne, for the defendants in error.
GOLDTHWAITE, J.— 1. The equity supposed to arise out
of the agreement between Caller and Vivian, previous to the con-
fession of the judgment by the former, is not of that description
which gives jurisdiction to a court of chancery. If the agree-
ment was based on a sufficient consideration, the party has a
clear legal remedy for its breach, and under ordinary circum-
stances, a court of equity will not interfere to compel the specific
execution of a contract afllecting personal chattels only. But if
the power to grant relief was conceded in a case like this, the
bill ought not to be sustained without an allegation that Caller
had paid the debt, for which his liability, in this view of the case,
is admitted, independent of the judgment. The payment of the
money, and not the mere form of confessing the judgment, is tlie
essence of the contract, to transfer that obtained against Bullock,
and without this, it would be inequitable to ask the transfer.
2. The other i)oint however, is the one here chiefly relied on;
but although it is conceded, every indorser, is quasi a surety,
yet we think the bill has no equity. The rule is, that if the hold-
er of a security by a valid contrac!:, gives the principal day of
payment, then the surety is discharged. [Chitty on Bills, 447 ;
Inge V. Bank, 8 Porter, 108 ; Pyke v. Searcy, 4 lb. 61.] There
is no obligation to active diligence, and the creditor may forbear
114
»>.
906 ALABAMA.
Caller v. Vivian, et al.
the employment of coercive measures as long as he chooses.
[Inge V. Bank, before cited. J It is true there are some decis-
ions which hold, that the release of the principal's property from
execution, will enure to release the surety, but we do not well
see why the creditor should be bound to follow up proceedings
when commenced, which he was in no manner required to com-
mence in the first instance. Some of these cases are quoted by
us, Carpenter v. Devon, 6 Ala. Rep, 718, but we do not under-
stand that case as going further than the recognition that the con-
dition of a surety continues, although the debt is reduced to a
judgment ; and that even then a valid contract, giving day of
payment to the principal, is good cause to enjoin a judgment
against the surety. The recognition of a rule, such as is contend-
ed for by the plaintiff in error, would deprive the holder of secu-
rities of a great portion of that discretion in the management of
suits, which is so important to be exercised, and throw on him
the necessity of pursuing his debtor with the utmost severity, at
the risk of losing his recourse on those who are collaterally bound.
We are unable to ascertain any principle upon which such a rule
can be based, for it seems clear, that the release of a levy in no
way impairs the rights of a surety ; if he pays the debt he has
the entire control of the security, when he stands as indorser; or
if otherwise, can at once proceed against his principal. It is cer-
tainly true that the discharge of a regular levy might be pro-
ductive of injury to the surety, and so in most cases would be the
dismissal of a suit, or the neglect to commence one. There is
indeed no other principle than the one we have previously stated,
and the facts of this case not being within it, the bill was proper-
ly dismissed.
This conclusion renders it unnecessary to consider the effect of
the conduct of the complainant, in confessing the judgment when
all the circumstances were known to him.
Decree affirmed.
JANUARY TERM, 184G. 907
Morris V. Booth and Wife.
MORRIS V. BOOTH AND WIFE.
1. A wife may join in a suit with her husband, upon a promise made to her
whilst sole, or when she is the meritorious cause of action, and an express
promise is made to her after marriage, because the action in these cases
will survive to her. When the promise is made to her, it is proof that she
is the meritorious cause.
2. When husband and wife join in action, upon a promise made to the wife,
neither a debt due by tlie wife after marriage, a debt due by tlie husband
alone, or a debt due by husband and wife jointly, can be pleaded as a set
off.
Writ of Error to the Circuit Court of Barbour.
Assumpsit by the defendants in error, on a promissory note
made to the wife, by the plaintiff in eri'or.
To a declaration in the usual form, in which the note is declar-
ed on as a note made to the wife, the defendant demurred, which
being overruled, he pleaded the general issue. 2. A set off of a
debt due by the wife after marriage. 3. A set off of a debt due
by the husband. 4. A set off of a debt due by husband and wife
jointly. These pleas of set off were demurred to, and the Court
sustained the demurrers, and gave judgment for the plaintiffs. The
assignments of error are, the overruling the demurrers to the de-
claration, and sustaining the demurrers to the pleas.
Shorter, for plaintiff in error, cited Reeves Dom. Rel. 133,
163-4 ; Saund. P. & E. 2 vol. 789 ; 1 Term Rep. 621 ; Chitty on
Con. 330 ; Chitty on Bills, 8.
BuFORD, contra, cited 2 M. & S. 393.
ORMOND, J. — As to the right of the wife to join her husband
in the suit, the general rule is, that she may join when the cause of
action would survive to her ; as where the suit is upon a promise
made to her whilst sole, or where she is the meritorious cause of
the action, and there is an express promise made to her. In Phil-
liskick V. Pluckwell, 2 M. & S. 393, it was held, that where a
908 ALABAMA.
Morris V. Booth and Wife.
promissory note was made to a married woman, she might be
joined with her husband in an action upon it. The note itself be-
ing evidence of a consideration, and being made to her, was proof
that she was the meritorious cause. This disposes of the de-
murrer to the declaration.
The question arising upon the pleas is one of more difficulty.
The first of these pleas, presents as a set ofl^a legal impossibility
— a debt secured by a contract, made by the wife, after her mar-
riage. By the coverture, her legal existence is merged, and she
can do no act which can operate as a contract to charge either
her or her husband, unless in the latter case, when she is presum-
ed to act as his agent.
The second plea is equally untenable. The reason why the
husband may join his wife with him in the action, is, that if he dies
before judgment, the right of action will survive to her, and this
right might be defeated, if a set offagainst the husband alone could
be pleaded. He might, if he had so elected, have brought the
suit in his own name, and if he had done so, a set off' against him
would have been good, but a setoff against his wife when sole,
could not have been received, because, by bringing the suit in
his own name, he had elected to treat it as his separate property,
and therefore a set off" not due in the same right, would be inad-
missible. [Burrough v. Moss, 10 B. & C. 558.]
The principles here announced are decisive against the third
plea. It is difficult to conceive of a joint debt, due from husband
and wife, which could be enforced at common law. A joint pro-
mise by them, would in any conceivable case be void at law, as
it regards the wife, and would in effect be the promise of the hus-
band, which would be the same fact as is presented by the se-
cond plea, which we have seen would be inadmissible as a set off.
The demurrers to all the pleas were therefore properly sustained,
and the judgment must be affirmed.
JANUARY TERM, 1840. S09
Doe ex dem. Kennedy v. Bebee, et al.
DOE EX DEM. KENNEDY v. BEBEE, ET AL.
1. A concession for a tract of land south of latitude of thirty-one, west of the
Perdido, and east of Pearl river, was made in 1806, and confirmed by an
act of Congress passed in 1832, which contained a proviso, declaring that
the act should " not be held to interfere with any part of said tract which
may have been disposed of by the United States previous to its passage :"
And providing further, that it "shall be held to be no more tlian a relin-
quishment of whatever title the United States may now have to such tract
of land :" Held, that if the United States had no interest in the premises
when the act was passed, in consequence of a previous disposition or other
cause, it was wholly inoperative, either to grant or confirm a title ; that as
the land was situated below high- water when Alabama was admitted into
the Union, if the federal government was ever entitled to the right of soil,
its title was disposed of previous to 1832.
Writ of Error to the Circuit Court of Mobile.
This was an action of ejectment, at the suit of the plaintiff in
error. The usual consent rule being entered into, the cause was
tried on the plea of not guilty. From a bill of exceptions, seal-
ed at the instance of the plaintiff, it appears, that to make out his
case, he introduced a Spanish concession to William McVoy,
dated in November, 180G, which had been laid before the com-
missioner appointed under the act of Congress of the 25th April,
1812, whose report was adverse to its allowance. This claim
was again presented to the Register and Receiver of the Land
Office at St. Stephens, pursuant to the provisions of an act of
Congress of the 3d March, 1827; these officers made a favora-
ble report, and the claim was specially confirmed by an act of
Congress of the 5th of May, 1832. Plaintiffalso adduced a deed,
dated in 1814, by which McVoy conveyed the land embraced
by his claim, to Joshua and William Kennedy, with covenants of
special warranty.
The defendants, in resisting a recovery, relied upon the act of
Congress of 1818, by which the President of the United States
was authorized to cause the site of Fort Charlotte in the city of
»iO ALABAMA.
Doe ex dem. Kennedy v. Bebee, e< al.
Mobile, to be laid off in lots and sold — the survey and map there-
of made by Silas Dinsmoor, a surveyor of the United States.
They proved the sale of the lots in 1820, or 1821, and their pur-
chase by an association of individuals,\vho received patents there-
for; a subdivision by this company, a resale, &c. and a regular
chain of title to the defendants.
The line of the Fort lots were extended east, below high wa-
ter mark, but since their sale. Water street has been laid off east
of them, and the land reclaimed by art; and between this street
and the channel of the river, and in front of the lot of which
the defendants are proprietors, the land in controversy is lo-
cated.
The plaintiff prayed the court to charge the jury — 1. That he
was entitled to all the land lying between the eastern survey of
Dinsmoor and the river, according to the evidence adduced. 2.
That he was entitled to the land embraced by the patent from
the United States to his lessor, which was not contained in the
grant to the lot company; and that the limits of these lots could
not be extended by improvements made as riparian proprietors.
3. That if they found the land in controversy to be within ihe
limits of the Spanish grant, and not embraced by the patents, nor
in Dinsmoor's survey, then the plaintiff was entitled to recover.
These several prayers for instructions were denied, and the court
charged the jury, that the case of Abbot's Ex'r v. Doe ex dem.
Kennedy, 5 Ala. Rep. 393, was a decisive authority against the
plaintiff's right to recover. A verdict was returned for the de-
fendants, and judgment rendered accordingly.
This cause, with several others depending upon the same title,
were arged by G. N. Stewart and J. A. Campbell, for the plain-
tiff in error ; and E. S. Dabgan and J. F. Adams, for the de-
fendants.
For the plaintiff, it was insisted, that the purchasers of the
lots laid off upon the site of Fort Charlotte, acquired no riparian
rights ; that the eastern lots were not bounded by the river, but
extended to fixed metes and bounds below high water mark ; at
the terminus of these lots, and west of the channel, it was ex-
pected that a street would be laid off corresponding with the plan
of the city, and the ground so filled up and elevated as to make
it fit for use — this expectation has been realized. They cited 9
For. Rep. 587; IG Pet. Rep. 251 ; 2 How. Rep. 592; Schultses'
JANUARY TERM, 1846. 911
Doe ex dem. Kennedy v. Bebee, et al.
Aq. Rights, 46, 117, 118; 14 Pet. Rep. 353 ; 10 Pet. Rep. 717;
16 Pet. Rep. 54 ; 5 N. Hamp. Rep. 520 ; 1 Taylor's Rep. 136;
4 Munf. Rep. 63 ; 4 Dev. Rep. 180 ; 20 Wend. Rep. 149, 156;
14 Mass. Rep. 151 ; 17 Id. 207 ; 5 Cow. Rep. 371 ; 6 Id. 706 ;
Grotius, 94, 137.
It was admitted, tliat the concession to McVoy would be in-
operative if it were not for the confirmatory act of 1832, and in-
sisted that the survey which accompanies and makes part of it
may be referred to for the purpose of supplying the defects of the
patent and identifying the land. [7 Missouri Rep. 503 ; 7 Ala.
Rep. 543,882 ; 2 How. Rep. 344, 318, 588; Land Laws, Op. &
Ins. 23, 878, 887, 1043.] They contended that the premises had
not been expressly or impliedly dedicated to the public use ; that
there was nothing in the manner of surveying the fort lots, up-
on which such an argument could be rested. [20 Wend. Rep.
115.]
It was contended for the defendant, that the case at bar was
identical with Abbot's Ex'r v. Doe ex dem. Kennedy, supra,
which fully sustained the judgment of the Circuit Court. It was
conceded that if the Fort Charlotte lots had been bounded by
the river, that the defendants would have had riparian rights, and
their counsel insisted that an extension of their lines below high
watermark, could not make a different rule of law applicable,
A confirmation was necessary to impart validity to the grant
to McVoy, but this could not be done after the sale of the lots, so
as to take from their proprietors a water front. The act of 1832,
shows in the reservation it contains, that no such purpose was
contemplated ; and the patent issued under its authority, must be
limited by the terms employed in the act. But be this as it may,
the concession to McVoy did not convey the shore, or give to
its assignee the benefit of accretions. They cited 8 Porter's Rep.
24 ; 9 Id. 587 ; 12 Wheat. Rep. 601 ; 2 How. Rep. 603 ; 14
Pet. Rep. 368; 10 Id. 100; 16 Id. 251 ; White's Span. Laws, ed.
1828, p. 62 ; Ang. on Tide Waters, 124 ; 2 Hall's L. Journal,
295-8 ; 3 Am. State Pap. (Pub. Lands,) 12.
COLLIER, C. J. — We do not propose to inquire, whether the
defendants, as the proprietors of the eastern lots upon the site of
Fort Charlotte, are entitled to the soil that may be formed upon
the contiguous shore in their front, either by natural causes or art.
912 ALABAMA.
Doe ex dem. Kennedy v. Bebee, et al.
What we said on this subject in the Mayor, &c. of Mobile v.
Eslava, 9 Porter's Rep. 587, though it may be correct as a legal
proposition, we should be inclined to treat as a mere obiter dic-
tum, rather than an authoritative decision of a point which influ-
enced the judgment of the court. In Abbot's Ex'r v. Doe ex
dem Kennedy, 5 Ala. Rep. 393, the record may have presented
the question, so as to have made it a turning point in the cause,
yet as the attention of the court was not called to the supposed
distinction between a boundary by the shore, and by fixed nietes
and bounds, below high water mark, perhaps the case should not
be considered a decisive authority in favor of the defendants.
The first question which invites our consideration is this, has
the plaintiff" shown such a title as authorizes him to recover the
premises in question? By the act of Congress, approved on the
5lh May, 1832, it is enacted as follows, viz : "Section 1. That
Joshua Kennedy, of the city and county of Mobile, in the State
of Alabama, be and he is hereby confirmed in his claim to a tract
of landjcontaining twenty and twenty-eight hundredth arpens,siti>
ate in the south part of the city of Mobile, which said claim is de-
signated as claim number ten,in abstract A, number two,of the re-
ports made to the Secretary of the Treasury on the 29lh of Feb-
ruary, 1828, by the commissioners appointed under the act of
Congress of the 3d March, 1827, entitled 'an act supplementary
to the several acts providing for the adjustment of land claims in
the State of Alabama.' Section 2. That the Commissioner of
the General Land office be, and he is hereby authorized and re-
quired, on a survey of the above mentioned tract of land by the
surveyor of the lands of the United States in the State of Alaba-
ma, to issue a patent for the same to the said Joshua Kennedy, or
his legal representatives, or to any person legally claiming under
him or them. Provided however, that the confirmation of this
claim, and the patent provided to be issued, shall not be held to
interfere with any part of said tract, which may have been dis-
posed of by the United States, previous to the passage of this act;
and this act shall be held to be no more than a relinquishment of
whatever title the United States may now have to such tract."
[8 vol. U. S. Laws, 554,]
We will not stop to inquire whether the claim described In
the report, so far identifies the land, as to enable one to say from
an inspection of the concession to McVoy, and the survey, &c.
JANUARY TERM, 1846. 618
Doe ex dem. Kennedy v. Bebee, et al.
accompanying it, thai the act above cited was intended to em-
brace this concession; for if the confirmation, without reference
to its application to the premises sought to be recovered, be in-
operative, then the plaintilT will hnve failed to make out his case.
This conclusion results from the inability of the Spanish authori-
ties to grant the lands within the present limits of this State south
of latitude thirty-one, after the cession of Spain to France by the
treaty of St. Ildefonso. Such grants, whether inchoate or per-
fect, were null and void, unless they were embraced by the stip-
ulations of the treaty of February, 1819, between Spain and the
United States, or received vitality from the legislation of Con-
gress. ["See Abbot's Ex'r v. Doe ex dem. Kennedy, supra, and
cases there cited.]
The extent of the confirmation we are considering is declared
in most unequivocal terms by \\\e proviso to the second section of
the act, viz : that it "shall not be held to interfere with any part of
said tract, which may have been disposed of by the United States
previous to the passage of this act ; and this act shall be held to
bo no more than a relinquishment of whatever title the United
States may now have to such tract of land." If then, the United
Slates had no interest in the premises in question, when the con-
firmatory act was passed, in consequence of a previous disposi-
tion of it, or any other cause, that act does not impart a title to
the assigneeofthcMcVoy claim. This is a proposition which seems
to us to be a consequence resulting so obviously from the language
of the proviso, as to be sufficiently illustrated by its statement.
In Pollard's Lesse v. Hogan, et al. 3 How. Rep. 212, the pow-
er of Congress to grant the shore of the navigable waters in this
State, was presented for adjudication, and elaborately discussed
and decided. It was there held that the stipulation contained in
the act of Congress of 1819, for the admission of Alabama into
the Union, which provides, "that all navigable waters within the
said State, shall forever remain public highways, free to the citi-
zens of said State, and of the United States, without any tax, duty,
impost or toll therefor, imposed by said State," conveys no more
power over the navigable waters of Alabama, to the government
of the United States, than it possesses over the navigable waters
of other States, under the provisions of the constitution. It leaves
to the State the same right which the original States possess over
11.5
914 ALABAMA.
Doe ex dem. Kennedy v. Bebee, et al.
the navigable waters within their respective limits. Again, say
the court, the shores of the navigable waters and the soil over
which the tide flows, were not granted by the constitution to the
United States, but were reserved to the States respectively ; and
the rights, sovereignty and jurisdiction of the new States over this
subject, is co-extensive with that enjoyed by the original mem-
bers of the confederacy. And as a sequence from these and oth-
er propositions, which were maintained by the court, it was de-
termined, that the right of the United States to the public lands,
and the power of Congress to make all needful rules and regula-
tions for the sale and disposition thereof, conferred no power to
grant land in this State, which was below high water mark when
Alabama was admitted into the Union.
Is it not perfectly clear from the case last cited, that the Unit-
ed States, if they were ever entitled to the right of soil in the
shores of our navigable waters^ in the language of the proviso,
« ^/s/705ec? " of it long pre vious to 1832? To permit the act of
Congress to operate as a confirmation, would be to tolerate an
interference with the admitted rights of this State, and instead of
being a relinquishment of the title which the United States then
had, it would be a divestiture of interest which they had yielded
up to the local government; arid this too, while the act most ex-
plicitly disavows any such purpose. The act then, cannot be re-
garded as either a primary or secondary grant, or conveyance,
so as to pass, or confirm a title ; for the reason, as we have seen,
that the grantor, or relessor, had nothing to grant or release.
This view is not opposed to Hallett and Walker, et al. v. Doe
ex dem.Hunt,et al. 7 Ala. Rep. 882; for there the grant in question
was reco^wizet? as valid, independent of the legislation of Con-
gress, although it extended below high water mark. Whether
unqualified confirmations of invalid grants of the shore, can be per-
mitted to operate consistently with the case cited from 3d How-
ard, is a question which we need not consider. It is difficult to
educe a harmonious system, even from the decisions of the fede-
ral judiciary, in respect to private land claims in the States ac-
quired from France and Spain. The only safe course is to con-
sider no question as concluded merely because it was directly
presented by the record, unless it was considered by the Court.
In our own adjudications, in cases of this character, we have fol-
lowed precedent where it could be found ; where this has been si-
JANUARY TERM. 1846. 915
Skinner v. Frierson and Frow.
lent, we have been guided by legal analogies, assisted by such
powers of reasoning as we could command. This anomalous lit-
igation, under the influence of the statute of limitations, and other
causes, must be drawing to a close, and we think the security of
individual rights renders it proper that we should do homage to
the maxim stare decisis, even at the expense of some inconsis-
tency in decision, rather than unsettle the law to any great extent,
with the intention of establishing more uniformity.
We have but to declare the result to be, an affirmance of the
judgment of the Circuit Court.
SKINNER V. FRIERSON AND CROW.
1. When an administrator resigns pending a suit against him, the plaintiffis
not compelled to make the succeeding administrator a party in his stead,
though he has the privilege to do so ; but may proceed with the suit, in
order to charge the resigning administrator and his sureties, unless the
resigning administrator also shows a due administration, or a transfer of all
the assets to the succeeding administrator.
2 When the resignation is suggested with the consent of the plaintiff, he
may make the succeeding administrator a party, but if the suggestion is not
assented to, the administrator is put to his plea, which must show not only
the resignation, but the other matters essential to a full discharge.
3. After a resignation, the administrator no longer represents the estate, and
a judgment afterwards recovered, will have no effect to charge a succeed-
ing administrator.
4. Upon the confession of the plea ofplene administravit, the judgment is to
recover the sum due, to be levied of the goods, &c. which hereafter shall
come to the hands of the administrator. A general judgment, to be levied
de bonis intestatia, upon such a confessioi;, is irregular, and usually amend-
able as a clerical misprision, but when directed by the Court is error, for
which the judgment will be reversed.
Writ of Error to the Circuit Court of Tuskaloosa.
916 ALABAMA.
Skinner v. Frierson and Crow,
Assumpsit, by Frierson and Crow, against Skinner, as the ad-
ministrator of VV. W. Capers.
The defendant pleaded non assumpsit, statute of non claim,
and jjlene administramt. The plaintiff took issue upon the first
plea, replied to the second, and as to the third, claimed judgment
quando accederunt. After the cause was called for trial, and
when the parties had announced themselves ready fer trial, the
defendant suggested to the Court that he had settled his accounts
as administrator with the Orphans' Court, resigned, and been re-
moved from the office of administrator ; that another person had
been appointed in his stead, who had represented the estate in-
solvent, and that it was so declared by the Orphans' Court. To
sustain this suggestion, the records of the Orphans' Court were
then present in Court, ready .to be produced, and the defendant
requested the Court so to order, that in the event of a judgment,
no execution should issue thereon, but that the same should be
certified to the Orphans' Court, for the plaintiffs to receive the
proper dividend of the estate. The Court decided the suggestion
not to be proper. The plaintiffs then produced and proved their
account, and its presentation, and rested. The defendant then of-
fered to produce and prove the decree of the Orphans' Court up-
on his settlement of accounts with the estate, his discharge by the
Court, and removal from office, and also offered to prove that
Frierson, one of the plaintiffs, attended when the settlement was
made, and claimed the allowance of the same account, which is
the foundation of this suit ; all which was objected to by the plain-
tift', and the objection sustained.
The defendant then asked the Court to instruct the jury, or so
to order that no execution should issue upon the judgment to be
rendered, unless it was shown that assets had come to the ad-
ministrator ; which the Court refused.
The defendant then requested the Court to instruct the jury, or
so to order, that no general judgment de bonis testatoris, should
be rendered, unless the plaintiff proved to the jury that the defend-
ant had assets in his hands. This was also refused, and the de-
fendant excepted to the several rulings of the Court. , ,.; r.
Thejary returned a verdict for the plaintiff, upon which judg-
ment was entered, to be levied of the goods, &c. of the intestate
now in the hands of the defendant remaining to be administered.
The errors assigned open the questions reserved at the trial,
JANUARY TERM, 1846. 917
Skinner v. Frierson and Crow.
aad also point out the irregularity in the judgment, which it is in-
sisted should have been quando accederunt, instead of general.
W. Cochran, for plaintiff in error, cited 2 Lomax on Execu-
tors, 442, 3, 4.
Peck, for the defendant, insisted, that none of the exceptions at
the trial were available, because the evidence offered was not re-
levant to any of the issues formed. The party had no right to
interrupt the progress of the cause before the jury to ask instruc-
tions as to the future action of the clerk. If the judgment was
improperly entered, the motion should have been to correct it.
GOLDTHWAITE, J.— 1. The questions involved in this
cause, require us to ascertain what effect is produced on a pend-
ing suit against an administrator by his resignation of the trust ;
as well as the mode by which the fact of resignation shall be
made known to the Court and adverse party. The object of a
suit against an administrator is to obtain satisfaction, and the
general effect of it is to charge the assets of the estate ; but be-
yond this the judgment has the effect also to charge the adminis-
trator personally, as well as his sureties, unless the assets are ad-
ministered in due course of law. As the administrator can be
made responsible only because of a debt due from his intestate, it
is necessary to ascertain that fact by a suit against him as the
representative of the estate, before he can be made personally lia-
ble. [Thompson v. Searcy, 6 Porter, 393.] One of our statutes
permits the resignation of an administrator ; [Clay's Dig. 222, §
9,] and another provides, that any suit commenced by or against
a personal representative of any testator or intestate, may be pro-
secuted by or against any one who may succeed to the adminis-
tration ; [lb. 227, § 30,] but if the effect of these enactments is to
discharge the resigning administrator, without shewing what dis-
position he has made of the assets received during the continu-
ance of his trust, the creditor might be turned frnm one to ano-
ther without end by the mere fact of resignation. This, how-
ever, is provided against by the statute which permits the resig-
nation, and the administrator and his sureties is by that declared
bound for all the assets and effects which shall not have beenjdu-
ly administered or applied ; or shall not be delivered to the sue-
918 ALABAMA.
Skinner v. Frierson and Crow.
cessor in the administration. [lb. 222, § 9.] From what has
been said in connection with these statutes, it is evident a plaintiff
is not compelled to make the succeeding administrator a party to
a suit already commenced, though he has the privilege to do so if
he chooses. It is also evident that he may proceed with his suit
although the resignation is suggested and shown, unless the re-
signing administrator is also able lo show one of the two alterna-
tives of the statute, in his discharge ; that is, either a due admin-
istration, or a transfer of all the assets to the succeeding adminis-
trator.
2. From these principles may be deduced the form of the plea
appropriate to a resigning administrator. At common law, al-
though an administrator had administered all the assets in his
hands, yet the creditor, upon confessing the plea of plene admin-
istravit, was entitled to a judgment quando accederunt ; but if
the fact was so found on the trial of the issue, the action was dis-
charged. [2 Lomaxon Ex. 440, § 11.] In this particular our
statutes seem to work no change ; but, inasmuch, as they provide,
in effect, for the discharge of a resigning administrator when he
has complied with what is required, it follows, that his plea must
be so modified as to produce that discharge as a consequence of
his compliance with all that the law requires. As the creditor is
entitled to charge the administrator and his sureties, when the as-
sets have not been applied in due course of administration, or
have not been transferred to the succeeding administrator, it also
follows, that he is entided to controvert these facts, as well as the
fact of resignation. The consequence is, that although the sug-
gestion of the resignation, when that is made with the assent of
the plaintiff, may have the effect to discharge the resigning ad-
ministrator from the suit, and authorise the admission of a new
party, yet, when not assented to, is of no effect whatever, [Wins-
jett V. McLemore, 6 Ala. Kep. 41G,j and the party is driven to his
plea, which to be sufficient to discharge the action, must show
not only the resignation, but the other matters essential to a full
discharge.
3. It now sufficiently appears, that the attempt of the defendant
to discharge himself from the suit by the suggestion of his resig-
nation when the cause was called for trial, was not the proper
mode ; but it is equally apparent, that if the facts were as sug-
gested by him, he had no further concern with the cause. His
JANUAUY TERM, 1846. 019
Skinner v. Frierson and Crow.
connection with the estate had ceased, and not being in fact or in
law, the administrator, a judgment obtained against him in that
character, could have no effect to charge a succeeding adminis-
trator. If the plaintiff's object was to charge the assets of the
estate in the hands of the succeeding representative, the sugges-
tion should have been confessed, and a sci.fa. taken to make the
necessary party. It will be borne in mind, that the defendant,
previous to making this suggestion, had pleaded the plea of plene
adninistravit, which was confessed, and a judgment quando ac-
cederunt prayed for. This confession of full administration has
relation certainly to the time of pleading the plea, even if it be
not referred to the rendition of the judgment on it ; [2 Saund.
219, note 2 ; Moore v. Quinn, 6 Term, 14,j from which it is
evident that nothing is involved here but the costs of this Court,
because, if the administrator, at that time had resigned, it is im
possible that any assets could come to his hands afterwards as
administrator. Although, to the parties, this decision is of no im-
portance, we deemed it proper, on questions so important in gen
eral practice, to pursue conceded analogies rather than let in a
loose and un precise mode of practice. It is scarcely necessary
to add, that the evidence offered, was applicable to none of the
issues, and therefore was correctly rejected.
4. The judgment as entered, however, is entirely irregular.
On the confession of the plea o^ple7ie adininistravit, the proper
course would have been to enter an interlocutory order to stay
the final judgment until, the issues were determined. [2 Lomax
on Ex. 440, § 10.] After the verdict, finding these issues for the
plaintiff, the entry should have beenfor the plaintiff to recover the
amount ascertained, to be levied of the goods, &c. of the intestate,,
which thereafter should come to the hands of the administrator
to be administered ; [lb. § 14,] but instead of this, the judgment
is a general one, de bonis intestatis, the effect of which might be
to charge the administrator personally, after a ji. fa. returned
nulla bona. According to our general course of practice, under
ordinary circumstances, this would be considered a mere clerical
misprision of the clerk; but here the Court was asked to direct
that no general judgment should be entered. The refusal of the
Court to give this direction, shows sutFicicntly, that the error is
attributable to the Court ; and though the letter of the statute di-
rects a reversal only when an amendment of the judgment has
920 ALABAMA.
Andrews & Brothers v. McCoy.
been refused in the Court below, [Digest, 322, § 55,J yet a refusal
to direct the proper judgment, seems equally within the spirit of
the act.
For this error the judgment must be reversed, and here ren-
dered quando accederunt.
ANDREWS & BROTHERS v. McCOY.
\. A bill which states the cause of action in the alternative, is insufficient, if
one of the alternatives shows that he has no right to a recovery, as the bill
must be construed most strongly against the pleader; but if the objection
is not taken in the Court below, it cannot be raised for the first time in this
Court.
2. Commercial paper, received as an indemnity for existing liabilities, is not
transferred in the usual course of trade between merchants, so as to ex-
empt it from a latent equity existing between the original parties.
3. To enable the holder to rely on the rules of the law merchant, as to the
transfer of negotiable securities, the legal title to the paper must be vest-
ed in him by an indorsement.
4. Where a vendor sells land, and conveys it by a deed, containing the words
" grant, bargain, sell," and also a covenant of general warranty, which is
at the time incumbered by a mortgage, executed by the vendor, the cove-
nant implied by the statute, from the use of the words "grant, bargain,
. sell," is broken as soon as the covenant is made, and the express warranty,
when the vendee is evicted by the mortgagee.
5. A counter bond, taken by the vendee, from the vendor, with surety to in
demnify him against the mortgage, will not be considered a compensation,
or satisfaction for a breach of the warranty; and if the vendor, and securi-
ties in such bond of indemnity, become insolvent, and there is an evic-
tion under the mortgage, equity will relieve the vendee from the pay-
ment of the purchase money pro tanio, against the vendor or his assignee.
6. The equity which attaches upon the assigrmnent of a chose in action, is one
which inheres in, or grows out of the subject matter of the contract. As
when there Avas a warranty against incumbrances, upon a sale of land, an
inchoate, or latent equity, would attach to the notes executed for the pur-
chase money, and would be enforced against an assignee of the vendor,
JANUARY TERM, 1846. 9^1
Andrews & Brpthers v. McCqy.
' when the equity became perfect, by a breach of the warranty, apd the in-
solvency of the vendor. . . ' - .
7. A vendor of land^ took several negotiable notes for the payment pf the pur-
chase money, one of which was negotiated in the .usual course of trade,
the others were not. Held, that although the holder' of the note so riego-,
tiated, was not subject to an equity existing against the yenddr, such pqui-y
ty could be enforced against the holders of the other, notes, and "that- the
vendor could not te r,equired to apportion the loss; * ' • -" ; ^y ■ . . ". ■
Error to the Chancery Court of Mobile. '; ;•-'... ■'■■:, v.- ■•.:.-;• '>■■'•
The bill was filed by the defendant in error, and aHedges, that
on the 1st February, 1837, the complainant purchased from one '
Solomon Andrews, <i lot, or parcel of land, for $40,000, and for
the payment thereof, executed four promissory notes, falling due
annually, fol- four successive years, and received from Andrews
a deedof conveyance^ with covenants of warranty. That some
time in the spring of 1837, Andrews became wholly insolvent,
and absconded' from the city .of Mobile. Thai on the 23d April, "
1837, he gave notice of the facts,, and warned all persons from
purchasing, or trading for the notes, and on ,tbe 24th of the same ,
month, gave a special notice to the Bank of Mobile. That about
this time the Bank of Mobile beeartie possessed of the first of these
notes, Fontaine & Frqeman of the second, and Andrews & Bro,
of the two last, with notice as he charges of his equity.
That Solomon Andrews, pi'evioUs to his safe and conveyance
to-the complainant, had executed to one St. John a mortgage on
a portion of the premises, (^hich is described.) to secure the pay-
ment of 824,000— that St. John filed a. bill to foreclose his mort-
gage, and obtained a decree and order of sale; arid that on the 6th
May, J839, the premises were "sold, and conveyed to the purcha-
ser, and complainat evicted therefrom— that the portion thus sold
embraced the house and out buildings, and rendered. the. residuq
comparatively valueless. y ■. .- . ■' ' .
The bill charges, that none of thenotps were transferred in the
usual course of trade — -that if the persons holding the notes had
any title at all to them, "it was. as collateral security for, ox inv
paymeurt of pre-existing debts." The prayer of the bill, is, for an
injunction against proceedings on the notes — that it be referred
to the Master, to ascertain .how much of the purchase money
should be abated, on account of the eviction, and that on his pav-
116 . , *
022 ALABAMA.
Andrews & Brothers v. McCoy.
mentofthat sum, the notes be delivered up to be cancelled.
The Bank of Mobile, Fontaine & Freemr^nj and Andrews &
Brothersj are. made defendants, and specially interrogated.
The Bank of Mobile, by its answer, insists, that the complain-
ant had notice of the incumbrance on the property, and for the
purpose of protecting himself, required a bond of indemnity, with
good security, which was executed by B. B. Fontaine and John
'W. Freeman, and bears date on the first February, 1837. That
•.-. the, note on complainant was received by the Bank in payment,
. •. and discharge of debts due from Andrews to the Bank, and the
. "evidences of his indebtedness were then delivered up to him, and
- • that at the time the officers pf theBaj^k. badap knowledge of any
objection to the note. • •^f'.-v.=iv •/:*'.' ^^* /:'?•. •'
Fontaine &. Freeman answer the bill, and admit the receipt of
the second note from S. Andrews, under the following circum-
stances : They were indorsers on tjills of.S. Andrews for his
accommodation, to the amount of abut $100,000, which were held
by One Richardson — that Andrews, failed to pay these bills at
maturity — that they proposed to, convey to Richardson a planta-
, tion and slaves, in this State, to pay these bills,' and that Andrews
^, agreed, that if such payment were made, he would reimburse
./•them by delivering good notes. That the sale was accordingly
made to Richardson, and this with other notes \vas delivered to
them by S. Andrews, in pursuance of his agreement, at which
time they had no knowledge of the equity of the complainant. '
The complainant filed a supplemental- bill, in which, after re-
peating the allegations of the original bill, he alledges that at the
time of his purchase from S. Andrews,- as ,a cumulative sfecurity,
he took from Andrews a bond of indemnity, executed by Andrews
as principal, and B. B. Fontaine and JohnW. Freeman as his sure-
ties. That at the time of the proceedings of St. John to fore-
close his mortgage, and at the filing of the original bill, Andrews
and Fontaine & Freeman were, and remain entirely insolvent, so
. that the bond has become worthless as a security. That Fon-
taine & Freeman, or one of them, have negotiated the note they
received to one John Freeman, but not in the usual course of
trade, or for any consideration which could prevail against com-
plainant; that he was proceeding at law to collect it, &c. and
• prayed an injunction. j
John Fontaine answers, and states that the note on complain-
JANUARY TERM, 1840. 923
, Anclrews & Brotliers v. McCoy.
ant was delivered to him in the usual course of trade, and for . a
valuable consideration, without notice of the complainant's
equity.
Andrews & Brothers also answer, and admit that they are -hold-
ers of the two notes mentioned in the bill, which they rieceived
under the following circumstances : That they had accepted
and indorsed bills for the accommodation of S. Andrews to the
amount of $125,000, which bills, in the due course of business, had
come to the. possession of the Bank of Mobile, and that S. An-
drewg was besides indebted to them in the sum of $50,000. That
becoming alarmed at the state of commercial affairs, and doubt-
ing the ability of S. Andrews to meet his engagements, they ap-
plied to himfor indemnity against the payment of the same, and
received the two notes for that purpose. That they have since
in good faith, paid to the Bank of Mobile upwards of $125,000,
on their indorsements and acceptances for S. Andrews, and relied
upon the notes as available means, but the indemnity they re-
ceived, will not reimburse' them.. . They also rely on the indem-
nity taken by the complainant, which they make an exhibit, and
insist that until he has exhausted his remedy against the sureties
on that bond, he cannot proceed against them.
■The Chancellor, at the hearing, disrafissed the bill as to the Bank
of Mobile, but considered that the equity of the complainaiit, was
superior to that of the , defendants,' Fontaine, and Andrews &
Brothers, and directed an account, to ascertain the injury sustain-
ed by the complainant by the eviction.
From this decree, Andrews & Brothers prosecute this writ.
) ., ._'.'■-
Hopkins, for plaintiffs in error —
The bill charges, that the notes were received by Andrews &
Brothers, either in payment of precedent debts, or as collateral se-
curity. . This is an admission by the complainant, that the de-
fendants are ' entitled to recover the amount of the notes. Tbe
defendants are entitled to the benefit of either alternative, as the
allegation must be taken most strongly against the statement of
the pleader, and one of the alternatives shows, a title to the notes
in the defendants. The objection may be taken either on de-
mprrer, on motion to dismiss for want of equity, or at the final
hearing. [3 Porter, 473 ; 10 Wheaton, 189 ; 1 M. & S. 201 : 3
Vesey, 402, and note,]
Of 4 ALABAMA.
Andrews & Brothers v. McCoy.
The penal bond; with surety, was a good and sofficient con-
sideration for all the notes made by McCoy. [1 Gtefenl. R. 355;
, 7 Mass. 14 ; 15 Id. 171 ; 3 Ala. Rep. 302.]
■ • It is conceded, that negotiable paper taken" in payment of a
pre-existing debt is protected from latent equities, and the same
reason applies to such a case as this. [16 Peters, 1 ; 1 Starkie's
Rep. 1; 1 Blng. .N. C. 469; 4 Bing. R..496.] The- cases of
Smith V. DeWit, and De La Chaumette v* The Bank of England
;were mere dicta, - ' ^ .. • .^
*; There could be no refcovery under the implied covenant mi
• -the deed, arising under the statute, from the terms, "grant, bay- ,
gam, sell," under the statute, because, the bond .otindemnity.exe-
•-■cuted contemporaneously with the deed, prevented these cove-
"nants from having any^ effect. As both pai»ties knew, that this
-covenant was broken when it was made, in a court of law% the
'.'taking of the bond would preverit a breach of the tiovenant, and
': Ifi a "court of equity, it rftust beieonsidered as a 'compensation
■ agreed on by the parties. . • ; .; '
Before the last note to St. Johfi would be payable, two of tbe
.' icibtes made by McCoy would beqome due, and if before this pe-
riod, and before eviction, Andrews and his sureties had become
ihso'lveht, equity could not have relieved against the payment of
.'the two first notes «iade by McCoy. ^T^or. would it have been a
good defence at law, -to' either- of the four notes. [4 Ala. -21 ; 1
Greenl. 358.] The only ground of equity Would be the insol-
vency of the sureties in the bond of indemnity, before ' the notCS
were indorsed by S. Andrews. An equity arising from the sub-
sequent insolvency of these sureties, would hot be availing against
the indorsees. To this point, the case of Sherrod V. Rhodes at
the present term is a full authority. ■ . : '
The contest here is for the money still due- from McGoy, for
the purchase money of tlie land. The Bank it is admitted, is
entitled to be paid in full, and as to Fontaine, who has not ap-
pealed from the decree, and is no party to this writ of error, the
decree is admitted by him to be correct. [3 Porter, 475.] The
'contest then, is between the Bank and the plaintiffs in error, and
as their ^:itle accrued at the same time, the equities are equal, and
there must be a pro rata division of the fund. The rule would
be the same, if instead of commercial paper, it was a bond, or an
m
ANUARY TERM, 1846. 925
Andrews & Brothers v. McCoy.
account ; in either case the insolvency must exist at the time of
the transicr, if that constitute^ the equity. , - •
The facttiiat McCoy executed a mortgage on the land to S.
Andrews, to secure the payment of these notes, cannot, in the
present aspect of the case, be considered by the court. It is not
put in issue by the bill, and although appended to the answer of
the plaintiffs in error, canpot be considered as evidence in the
Cause. As McCoy has no equity against the Bank, he cannot be
permitted to retain a; fund ibr. the payment of the debt to the
Bank, to which the plaintiffs in eiTor are entitled. But if the Bank
had a right to this fund, it could only be enforced. upon the appli-
cation of the Bank. : ,. • • "...
• ■'•.'••.. ■ ' / . i
■.'*.■' ■ • . ■ .• f ■
• ..'•■•.•• •.»•.•
Campbell, contra. ;'.-•• '--'-^ - •• • ■■ > < •
■ ■ %. ■ . ^ ■■- ;■=;: .
> ORMOND, J. — It is objected by the counsel for the plaintiffs
in-^rror, that it appears from the bill itself, that the notes held by
the plaintiffs in error, are not subject to the latent equity now set
tip against them.
The allegation of the bill h6re referred to, is, that the nqtes
were not received by the plaintiffs in error in the ugual course of
trade, but that if they had any title to them, " it was as collateral
security for, or in paymiSnt of pre-existing debts." This allega-
tioil is undoubtedly too uncertain. A bilF which does not alledge
a cause of action, cannot be entertained, and there is no sensible
distinction between the absence of the necessary alIegations,show-
ing a cause of action, and an alternative admission, that no cause
of action exists, as thie bill must be consti'ued most strongly against
the pleader. Such is the case here, as appears from the decision
in the Bank of Mobile v. Hale, 6 Ala. Rep. 639, where it was
held that a commercial instrument received before it was due, in
pa.yment and discharge of a pre->existing debt, was taken in the
usual course of trade, and not subject to a latent equity of which
the transferee had no notice. • . ■
But this objection cannot be taken advantage of here, in. the
mode now proposed.- If the bill had been demurred to for Uiis
cause, and the objection distinctly presented, it could have been
obviated by an amendment. Instead of pursuing this course, the
plaintiffs in error submitted to answer the bill, set up their title,
and litigate their rights, without objection, and it would be gross-
026 ALABAMA.
Andrews & Brothers v, McCoy.
ly UBJust to the complainant, to permit them now, after the cause
has been heard on its merits, to raise an objection, which, by their
previous conduct they had waived in the primary tribunal. Such
has been the constant course of decision in this. Court, for some
•years past. K -.:■,: :>''-^
As to the right of the plaintiffsinerrorto hold "these notes dis-
charged from the equities existing between the original parties
to them, it seems to us now, as it did at the argument of the cause,
that the case of the Bank of Mobile v. Hale,'and of Hull & Leav-
ons v. The Planters' and Merchants' Bank of Mobile, 6 Ala. 761,
are decisive against the pretension here set up^ The defendants
in their answer, in stating their title to the notes, proceed to state
their liabilities for S. Andrews, as acceptors and indorsers for his
house, to a very large amount. They also claim a balance as
due from him upon an unsittled account, which, without " pre-
tending to accuracy," they set down at #50,000, and proceed to
state, that doubting the ability of S. Andrews to meet the bills for
which they were liable, « they applied to him for indemnity
against the payment of the same, and received from him for this
purpose, on the date aforesaid, the two notes herein set forth."
They further state, "that they relied on the indemnity so receiv-
ed h'om said Solomon, as so much available means, from which
the said indorsements and acceptances would be satisfied — that
said Solomon received a credit for said'notes."
From these statements of the plaintiffs in error of their own ti-
tle, this case is brought fully within the principle settled by this
Court, in the Bank of Mobile v. Hale, already cited, that " com-
mercial paper received as an indemnity against possible future
loss," is not taken in the usual course of trade. The answer pla-
ces this mattter beyond doubt. S. Andrews was applied to for
an indemnity/, from an appreliension, that he would not be able
to meet his engagements ; the notes were received for that pur-
pose, and relied upon as so much available means to discharge
the debts of S. Andrews, for which the plaintiffs in error were al-
so bound. It cannot be pretended, that these notes were receiv-
ed in payment of the debt, which it is alledged in the answer was
due from S. Andrews to the plaintiffs in error ; not only because
that is not the statement of the answer, but also because it ap-
pears that no ascertained debt existed. It seems there was a
floating balance between the house of which S. Andrews was a
JANUARY TERM, 1846. 927
Andrews & Brothers v. McCoy.
memberj and that'of the plaintiffs in error. That, this debt wag
n^yer liquidated between the parties, is evident from the conjec-
tural estimate 6f the amount, which is put down as a conjecture,
at $50,000. , In the Bank of Mobile v. Hale, we held that a note
absolutely and' unconditionally received in payment of. a pre-ex-
isting debt, and the security thus paid off, relinquished, was taken
in the usuaLcoursd of trade, between merchants, as much so as if
purchased- with moneyi Such could not have been the fact
herd, because it does riot appear that S, Andrews admitted any
debt to be due, and could not therefore have transferred these
notes in its discharge ; and also because, it is expressly stated iii
the answer, that the notes were looked to, and held as available ~
means> to discharge the outstanding endorsements and accept-
ances.; . , ,
In addition, it may be stated, that from the title, as deduced by
the plaintiffs in error to these notes, it appears, that the title was
never transferred to them by an indorsement, without which the
legal title, according to the law merchant, is not vested. It is
true, by that law, a note payable to bearer, may be transferred
by delivery merely, but that rule has been changed in this State,
by statute, so as to require an endorsement in all cases to vest the
legal title, and in ihis case it appears the paper was payable to
order. Without such legal title, the holder of commercial paper
has no other, or greater rights, than that of a chose in action at
common law, or of an assignee under our statute. . [Hn]l-&:, Lea-
vens V. The P. & M;. Bank, mh Ala. Rep. 761 ; Hopkirk v. Page,
2 Brock. 41 ; Story on Bills, 222.] The language of the an-
swer, does riot authorize us to infer, that the notes were endorsed
to the plaintiffs in error. The allegation of the bill is^ that the
plaintiffs in error, in some way, became possessed of these notes,
and they in deducing their title, to them, say they " received"
them from S. Andrews. As against the complainant, asserting
an equity against the payee of the notes, it devolved on the plain-
tiffs in error to bring themselves within the rule of the law mer-
chant, so as to exempt the notes in their hands fi'om its opeta-
tion and effect, as against them.
These notes, then, not having been transferred so as to vest
the title according to the law merchant, and not having been re-
ceived in the usual course of trade, are open in the hands of the
plaintiffs in error, to all the equities existing between the original
928 ALABAMA.
Andrews & Brothers v. McCoy.
parties, and this brings us to the consideration of the^ question,
what that equity was, at the time they became possessed of thie
notes, ' . . • • • '
. The notes were executed with two others, upon- the purchase
of a tract of land, which was cortveyed by deed of bargain and
sale, containing the words "grant, bargain, sjcll," an.d also a gen-
eral warranty. Under the statutepf this State, the words "grant,
bargain, sell," are an implied covenant against all acts done or
suffered by the grantor. [Roebuck v. Dupuy^2 Ala, 535.] The
general covenant of \yarrE|aty. is, 4n this State, equivalent to a co^
vehant for quiet lenjoyment. [€aldwelL v, Kirkpatrick, 6 Ala.
60.j As the mortgage upon the land in favor of St. John, exist-
ed when this sale and conveyance' w^s -made, the statute cove-
nant was. broken, when the deed was made, and the general co-
venant of warranty, by the eviction Under the sale, to discharge
"the debt due Sj. John, It is theYe{or,e cleai:,- that the complain-
ant was entitled to be Relieved pro ten^o, against the notes in the
hands of Andrews, the vendor, he being insolvent, as was held
by. this Court in the case, of Cullupn v. Xhe Branch Bank of Mo-
bile, 4th Ala. 21. .// - •• .. -^ :.V" '■■ ' .
it is however insisted^ tKat this .c^'sp is varied by the fact, t]iat
the conjplainant took frona the vendor, an indemnity, or security,
against this breach of the co,venant^ which in equity must be con-
sidered as, a compensation. . .' ■ . -: •'* ;
■; V^e. tliinli. it perfectly ^lear, that the taking p^fvthis. security, or
indemnity, against the incurhbrance upon the land, cannot be con-
sidered a satisfaction, or compensation for the breach. ; It may
be that if the sureties of the vendor were solvent, and aMe to re-
spond in damages for the breach of the warranty, a Court of E-
quity would refuse to interfere, and enjoin tlie collection of the
purchascTBoney, and leave the party to the' remedy be' h^d hiria-.-,
self selected. Here it appears, that the sureties, as well as the
vendor, are wholly insolvent, and it cannot admit of doubt, that
in such a case, eiqurty would relieve the purchaser, as againstthe
vvendor,.from the payment of the purchase money, and such must
be the relief in this case, g,s the plaintiffs in error are clothed
■with his rights, and subject to his disabilities. . • -. ^ , 'sV'W': t-^-
It is also supposed that the rights of the parties are to Dcad-
measured by the facts as they existed at the time the notes catne
to the possession of the plaintiffs in error and if thp sureties were
JANUARY TERM, 1846. 929
Andrews & Brothers v. McCoy.
not then insolvent, no such equity then existed in favor of the
vendee.
The equity which attaches upon the assignment of a chose in
action, is one which inheres in, and springs out of the subject
matter of the contract. When these notes were delivered, the
vendor being then 'insolvent, they were burthened with the latent
equity arising from the covenant against incumbrances. As soon
as there was a breach of that warranty, and the sureties also
became insolvent, the inchoate right became perfect. Such was
the decision of this Court in Smith v. Pettus, (1 Stewart, 107,)
which m principle is precisely the same as this case. [See also
Murray & Winter v. Lylburn and others, 2 Johns. Ch. 441 ;
Livingston v. Dean, Id. 479 ; Coles v. Jones, 2 Vernon, 692 ;
Newton V. Rose, 2 Wash. 234.] ^ • '^
The decision in Sherrod v. Rhodes, at the last term, turned up-
on a different principle. There a surety, who had been com-
pelled to pay the debt for his principal, obtained a set-off in equi-
ty against a claim transferred by the Rail Road Co., his princi-
pal, to Sherrod. The principle which governed that case, was,
that the Rail Road was insolvent when the demand against
Rhodes was assigned to Sherrod ; and that therefore in equity
he had a right to the set-off against the Company, at the time
they assigned the claim to Sherrod. It may be conceded, "that
at the time these notes were delivered to the plaintiffs in error,
the equity of the complainant was not perfect, nor was it necessa-
ry that it should be ; it is sufficient that it e'xisted in an inchoate,
or latent state. No principle is better settled, as shown by the
authorities cited than that the assignee of a chose in action,
which is the predicament of the parties here, talies it subject to
all the equity existing between the original parties, and it is unim-
portant whether it is inchoate or perfect. In the case of an equi-
table set-off, as already observed, the rule is different. There,
the right must exist at the time of the assignment, though it be
not available at law.
The plaintiffs counsel also contend, that the loss must be visi-
ted equally upon all the notes, and that only a pro rata amount
should be deducted from the notes held by them, although the
Bank of Mobile, as the holder of one of the notes, is not subject
to the complainant's equity.
It appears that the notes executed by the complainant, on the
117
■W
\ •—
*93Q \ ALABAMA.
Doe, ex dem. Pollard's heirs v. Greit, et al.
purchase of the land, were mercantile instruments, and if they
had all been negotiated in the usual course of trade, without no-
tice of the complainant's equity, he would have been without re-
dress. One of them it appears, was duly negotiated to the Bank
of Mobile, which the Chancellor decreed to be paid ; but we can
not perceive that this circumstance impairs the right of the com-
plainant to enforce his equity against the holders of the other
notes, who have not obtained them under such circumstances as
to protect them against such a scrutiny. His right would cer-
tainly be perfect against the vendor, if he had negotiated one,
and retained the rest, and these defendants, except the Bank, are
in no better condition than he would be, if the transfer had never
been made. If all the holders of these notes stood in equalijure,
there would be great reason, and propriety in apportioning the
loss between them. Such is not the case, and as the complainant
has a clear right to arrest the payment of so much of the purchase
money, as he has lost by the incumbrance on the land, it must
be borne by those, who by their own acts, have subjected them-
selves to all the equities existing against the vendor. This leads
ys to the conclusion that the decree of the Chancellor must be
affirmed. . .
#
DOE EX DEM. POLLARD'S HEIRS v. GREIT, ET AL.
fi. The lessors of the plaintiff claimed under a Spanish permit, dated 11th
December, 1809, for an unknown quantity of land, situate in Mobile, which
the commission for the examination of land titles reported was forfeited
under the Spanish law, for want of inhabitation and cultivation. The ti-
tle under which the defendant claimed commenced in 1803, and was con-
■ firmed by an act of Congress of 1822, and embraced a lot for one hundred and
forty-nine 4-12 feet on Water street, known under the Spanish government
as a water lot, and situated between Church and North boundary streets ;
immediately front of this lot, and between Water street and the channel of
the river, improvements were made prior to May, 1824, by those under
whom the defendants deduced title ; In May, 1824, an act of Congress was
JANUARY TERM, 1840. 931
Doe ex dera. Pollard's heirs v. Greit, et al.
passed, by which the United States relinquished their right to the lots of
ground, east of Water street, and between Church and North Boundary
streets, then known as water lots, and situated between the channel of the
river, and the front of the lots, known under the Spanish government as
water lots in Mobile, whereon improvements have been made, and vested
the same in the proprietors of the latter lots ; except in cases where the
proprietor had alienated his right to the then water lot, or the Spanish gov-
ernment made a new grant, or order of survey for the same, while they
had the power to grant the same ; in such case the right of the United
Sta,tes was vested in the person to whom such alienation, grant, or order of
. survey was made, or Bis legal representatives : Provided, that the act shall
not affect the claim of any person, &c. . In 1836, the claim of the plaintiff
was confirmed by an act of Congress, which declares that it shall only op-
erate as a relinquishment of the right of the United States, without in any
manner affecting the claims of third persons : Held, that the plaintiff had
no right to the premises claimed by tliem, which could in any manner im-
pair the confirmation of 1822, and the subsequent enactment of 1824; that
the former act invested the defendants with all the title of the United
States to the lot west of Water street, and the latter, in virtue of unprove
• ments made on the water lot, relinquished the same to the proprietor of the
western lot : consequently the title to the lots claimed by the defendants,
both east and west of Water street, having passed out of the United States
previous to 1836, and vested in individuals, the act pa,ssed in that year was
inoperative as against the defendants.
2. Where the plaintiff claimed under a Spanish permit, dated in 1809, which
had been unfavorably reported on, a part of the shore of Mobile bay which
had not been reclaimed from the water when Alabama was admitted into
the Union, in 1819 ; an act of Congress passed subsequently to the latter
period, relinquishing to the plaintiff so much of the shore as is embraced by
the permit, provided the rights of other persons are not thereby affected, is
inoperative.
3. Quert'^ Whether, in a controversy in respect to the location and title to
lands, under the instruction of the Court, the jury by their verdict affirmed
that the premises of which tlie defendant was in possession, was not em-
braced within the defendant's lines, the judgment should be reversed,
where the Court, upon some other point in respect to the title, may have
charged the jury incorrectly.
4. If a patent issued under an act of Congress describes the land by other"
metes and bounds tlian the act designates, it is void, both in law and equi-
ty, as to the excess which it professes to convey.
Writ of Error to the Circuit Court of Mobile.
932 ALABAMA.
Doe ex dem. Pollard's heirs v. Greit, et al.
This was an action of ejectment, at the suit of the plaintiff in
error. Greit being the tenant in possession, came into Court and
admitted that he was in possesion of that part of the land « in
the plaintifTs declaration mentioned, commencing on Government
street, seventy-seven feet from the intersection of Water and
Government streets, at the south-east corner of said intersection,
and from that point on Government street, measuring west on
said street, 25 6-12 feet, and running back at right angles, so as
■ to form an oblong from Government street to the southern line, in
the plaintiff's declaration mentjoned." In respect to the residue
of the lands sought to be recovered, the tepant disclaimed all title,
or possession ; and as to the above, confessed lease, entry, and
ouster, and insisting upon the title, pleaded " not guilty." There-
upon the tenant, together with his landlords, Solomon Mordecai,
and John. J. Wanroy, were admitted to defend jointly ; the cause
was submitted to a jury, who returned a verdict of " not guilty,"
and judgment was rendered accordingly.
On the trial, the plaintiff excepted to the ruling of the Court.
It is shown by the bill of exceptions, that the plaintiff read to the
jury, from the American State Papers in respect to Public Lands
(see vol. 3, pp. 17, 18,) a report to show that a claim numbered
45, was presented by the ancestor of the lessors, to the commis-
sioners appointed to examine into the title to lands in Mobile and
thereabouts. He further read an act of Congress, passed the 26th
day of May, 1824, entitled " an act granting certain lots of ground
to the corporation of the city of Mobile, and certain individuals
of said city ;" and then adduced an act of Congress, approved
the 2d day of July, 183G, entitled "an act for the relief of Wm.
Pollard's heirs," confirmatory of the claim above mentioned.
The plaintiff also gave in evidence a patent from the United
States for the premises, issued in pursuance of the last mentioned
act, and proved by the chain carriers who aided in repairing the
King's wharf, in 1818 or 1819, the correct location of the lands
embraced by the patent.
There was also offered as evidence, a map, which was proved
by Delage, the deputy surveyor of the United State„s, who made
it, to be a " correct diagram of a portion of the premises claimed
by both parties, and showed the relative situation thereof ; and
more particularly, that the premises claimed by the plaintiff were
within the lines of the patent." The plaintiff also adduced a maj
JANUARY TERM, 1846. 938
Doe ex dem. Pollard's heirs v. Greit, et al.
showing a true diagram of the premises, as they are set forth in
the patent, made by another deputy surveyor of the United
States, and proved that it coi'rectly represented the locus in quo
as connected with other objects around it. Tlie extract from the
State papers, and the two maps are appended to the bill of ex-
ceptions, and made'a part of it.
Tlie defendants, to maintain the issue on tiieir part, relied on
the actof Congress of 1824, which the plaintiff read to the jury
as conferring a right to the premises in question, because they lay
in front of a lot of which the defendants were the proprietors,
and between it "and the river Mobile." They then offered to
lay before the jury, the transcript from the land office at St. Ste-
phens, the official survey, and patent certificate issued to the heirs
of Espejo, for a lot on the west side of Water street, and at or
near the south-west ©orner of Government and Water streets, in
the city of Mobile ; and proposed to adduce evidence that this
lot had been used, improved, and occupied during Spanish times,
by Antonio Espijo,and after^his death by his children and widow:
That partition was made between the heirs in 1821, and the lot
here referred to vras assigned to Gertrude -Tankersly, a daugh-
ter of Antonio, for whom Mordecai and Wanroy held the same
in trust. That in the deed of allotment and partition, the lot is
bounded east by the river Mobile as it then flowedr
It was further proposed to show, "that in Spanish times this
lot was on the river bank, and run westwardly for quantity; that
in 1818, Sylvanus Montusa, and Richard Tankersly rebuilt a
wharf on the posts of the old King's wharf, which was blown
down in 1811. Montusa married the widow of Espejo, and
Tankersley was the husband of Gertrude. The defendants of-
fered to prove, that Tankersly built a much larger wharf in front
of the lot, which was occupied by him and his tenants till the con-
veyance to the trustees of his wife — the Montusa wharf as it was
designated, was carried away by a gale in 1820 or 1821. The
land between Water street and the river was made by filling up
the marsh by Tankersly or those claiming under him ; some of
the low ground was reclaimed in 1822, and much more since
that time.
The defendants also adduced a map made in 1824, accredited by
the city,in order to makeit appearthatChurchst. was southofGov-
ernment, and that north of Government street, six or seven stfeets
934 ALABAMA.
Doe ex dem. Pollard's heirs v. Greit, et al.
were laid out, running in a similar direction to the river — on that
map, Commerce, which lies between Water street and the river,
appears to have been opened, and the Tankersly wharf designated
as westof Water street,north of Church, and south of Government
streets. They also propoiged to introduce many witnesses to
prove that the line of the King's wharf lay north (if the land in
front of the lot of the defendant, on the west side of water street,
and that the defendants have not encroached upon the claim of
the plaintiffs, which is confined to the King's wharf-as their south
boundary ; and for the purpose of fixing the line of the King's
wharf, interrogated them as to their recollection of the same, of
the marks, and memorials, &c., by which its position could be
identified. Further, that the courses and distances laid down in
the patent of the lessors of the plaintiff' infringed on the lands to
which the defendants were entitled. Extracts from the maps re-
ferred to, or the maps themselves it is agreed may be considered
as embodied by the bill of exceptions. To all the above testi-
mony as offered the plaintiff objected, but his objections wer§
overruled, and the evidence was permitted to go to the jury.
The court, in its charge to the jury instructed them, that the
only question they had to decide was, whether the King's wharf
lay above or north of Government street, and if, from the evidence
they believed that it was thus located, they should 'fipd for the
defendants.
Thereupon the plaintiff's counsel prayed the court to charge
the jury as follows : 1. That so far as the defendants claimed to
derive title under the act of 1824, it was competent for Congress,
by a subsequent enactment, to grant the land claimed by the de-
fendants, to the lessors of the plaintiff, and prescribe the bounda-
ry and limits of the same, as has been done by the act of 1836.
2. That so far as the defendants claimed to hold or derive a title
under the act of 1824, they were concluded by the patent of the
lessors of the plaintiff, and the government survey therein set
forth. Both these prayers for instructions were denied.
*' The court also instructed the jury, ^at if the King's wharf
lay south of government street, the plaintiff was entitled to re-
cover to it, as his title in case of conflict was superior."
J. Test and P. PttrLLiPs, for the plaintiff in error, made the fol-
lowing points : 1. It may be questioned whether the defendants
JANUARY TERM, 1846. 935
Doe ex dem. Pollard's heirs v. Greit, et al.
have shown a title to the lot west of Water street ; if they have,
their title to the eastern lot can only be deduced from the act of ^•
May, 1824. This statute confers a bounty, and is limited in its
operation by an exception, of the application of which the federal
government may judge; the government has adjudged that the
lessors of the plaintiff oome within the exception and has located
their claim accordingly. '
2. There is no discrepancy between the patent to the lessors
and the act of Congress under which it was issued, and if there
was, it would not be allowable for the defendants, who must be
regarded as trespassers to defeat the patent, or introduce evi-
dence to show that it improvidently issued.
3. The act of 1836 directs that a patent shall issue, and in order
that the land might be more particularly described, it was neces-
sary that an examination and survey should be made as provided
by the act of 1822. There can be no ground for the distinction
attempted to be drawn as to the effect of patents here and in Eng-
land. The King's patents frequently issue, not only for lands of
which the crown is the exclusive proprietor, but also for that
which the King holds as a trustee for the public. By requiring
a patent to issue, the act of 1836, impliedly directed, the prelimi-
nary steps to be taken to ascertain the locality and dimensions of
the land, and the patent is as much the act of Congress as if it
had been so declared.
4. Until the patent issues, the title remains in the United States, '
[13 Pet. Rep. 436, 448, 498; 8 Lou. Rep. N. -8.400.]
5. The Spanish concession to Pollard, confirmed by the act of
1836, clearly embraces the locus in quo, and the patent is co-
extensive with that enactment.
6. It was not admissible to show that the patent of the lessors
was improperly located, viz : that the King's wharf was in Gov-
ernment street, and not 14 feet south of it.
7. The title to all lands is presumed to have been originally in
the United States, and that Congress have unlimited power of
legislation over the subject. [3 Story on Cons. 198 ; 8 Wheat.
Rep. 595.] And cannot be controlled by State authority. [13
Pet.Rep. 450-1, 517.]
8. Inchoate titles emanating from Spain, &c. are mere nulli-
ties, until confirmed by Congress, except where the land, has
been inhabited or cultivated prior to the treaty of St. Ildefonso, 1
936 ALABAMA.
Doe ex dem. Pollard's heirs v. Greit, et al.
Land Laws, 509 ; but an act of Congress may operate as the
grant of the soil, 2 How. Rep. 345, 372. A patent however is
the supreme evidence of title, and cannot be defeated by evidence
other than a patent by an elder date. [13 Pet. Rep. 448, 450, 515
to 518.] And a claim, when confirmed, relates back to the in-
cipiency of the title. [1 Pet. Rep. 664 ; 6 Id. 713-14.]
■' 9. A survey is necessary to the appropriation of the soil, and
a survey made by a surveyor of the United States cannot be con-
tradicted by parol, but must be taken to be true. [7 Por. Rep.
434.] To show the conclusiveness of the patent, and the sur-
vey recited in it, they cited 3 Pet. Rep. 96-7, 338, 341-2-4 ; 6 Id.
342-3-5-6, 367 to 371 ; 5 Wend. Rep. 146: 8 Id. 190; 14 Id.
695-7; 1 T. Rep. 701; 11 East's Rep. 312; 19 Johns. Rep.
100 ; 1 Caine's Rep. 358, 363 ; 2 Binn. Rep. 109 ; 4 Sergt. &
R. Rep. 461 ; 2 Mass. Rep. 380; 5 Greenl. Rep. 503; 2 Dev.
Rep. 415; 4 Wheat. Rep. 144; 4 H. &Munf. Rep. 130.]
10. The defendants have no title under the act of 1824* in vir-
tue of improvements. [2 How. Rep.] Having no title, they
must be regarded as mere intruders. [4 JohnSi Rep. 202.J
J. A. Campbell, for the defendant in error, said there was no-
thing to connect the proceedings in the land office which were
reported to the Secretary of the Treasury, as shown by the
State Papers, and relied on by the, plaintiff' at the trial, with the
subsequent legislation of Congress in. 1824 and 1836. And these
were the onl-y evidence of title produced by the plaintiff) save
only the patent which professes to have issued pursuant to the
latter enactment.
The defendant's title is proved by a Spanish concession to An-
tonio Espejo, dated in 1803, for a parcel of land on the river be-
low the King's wharf and' near it — a confirmation to his heirs in
1822 — a survey and patent certificate. This lot was improved in
Spanish times, was occupied by the family of Espejo, after his
death, and is located at the south-west corner of Water and Gov-
ernment streets.
Every thing that is necessary to confer a title under the se-
cond section of the act of 1824, was proved by the defendants,
viz : those under whom they claim had a lot west of Water street,
which was a Spanish water lot, prior to 1813; they improved
the ground in front of them to the east of Water street prior to
JANUARY TERM, 184G. 037
Doe ex dem. Pollard's heirs v. Greit, et al.
the 26th of May, 1824, and were in possession of the same on
that day ; and this property is between Church and North Boun-
dary street. These facts entitle the defendants to the front pro-
perty, (which is that now in controversy,) unless an opposing
grant from the Spanish government is produced.
The act of Congress of 1836 makes no reference to any Span-
ish grant, nor to the claim in favor of Pollard, which is specified
in the report ; they cannot then be connected with each other.
The report merely proves the fact that it was made, but does
not establish the genuineness or contents of a paper of which it
is only an abstract — to do this, it is essential that the proper proof
should have been given of the loss of the original. [1 Ala. Rep.
N. S. 660.]
By the act of 1836, the rights of third persons arc carefully
preserved. The defendants were previously invested by the
government with land in front of tlieir ground, and east of Wa-
ter street, while the title of the lessors of the plainlifT were con-
firmed to the King's wharf. If the King's wharf had been in
front of Espejo's claim, and a Spanish grant had been produced
to Wm. Pollard, then the decision in the case of Pollard's heirs v.
Kibbe, and Pollard's^ heirs v. Files, in the Supreme Court of the
United States would be favorable to the plaintiff. But in this as-
pect, the plaintiff should have shown — 1. A Spanish grant. 2.
The location of the King's wharf.
A reference to the ruling of the Circuit Court, will show that
the non-production of a Spanish grant was overlooked — Its exis-
tence and validity were assumed, and the jury were informed,
«that if the King's wharf was south of Government street, the
plaintiff was entitled to recover to it as his title incase of conflict
was superior*" The Court further charged, that the location in
the patent was not conclusive, and that the location of the King's
wharf was a question of fact for the jury; the jury have decided
that it is not south of Government street, but that the property in
question is bounded by this street.
The location by an agent of the government may be conclu-
sive between the United States and the claimant, but as between
third persons and the claimant it can have no effect, unless the
former claim under the government subsequent to the location.
The act of 1824, does not provide for surveys and locations, but
118
938 ALABAMA.
Doe, ex dem. Pollard's heirs v. Greit, et al.
transfers the right of the United States, leaving the parties inter-
ested to adjust them. [Mayor, &c. of Mobile v. Farmer's heirs,
6 Ala. Rep. 738; 7 Missouri Rep. 98 ; 2 How. Rep. 344; Id.
581.} If the patent on which the plaintiff relics, goes beyond
the act of Congress under which it issued, the latter will restrain
and control it.
^ No patent was'necessary to consummate the title of the de-
fendants under the act of 1824; they showed a legal title when
they proved the facts necessary to confer it, according to the re-
quirements of that enactment. This point was expreslly ruled
in The Mayor, &c. of Mobile v. Eslava, 16 Pet. Rep. 2.54 ; see
also, 12 Pet, Rep. 410 ; 9 Cranch's Rep. 43 ; 2 Wheat, Rep. 196;
3 Dall. Rep. 425 ; 2 How. Rep. (U. S.) 344 ; 6 Missouri Rep.
330 ; 7 Id. 98.]
Upon the titles shown, the inquiry then was, the locality of the
King's wharf. If this wharf had been found to be south of gov-
ernment and in front of the lot which the defendants claim through
Espejo, the defendants' title would have been the oldest, inas-
much as the plaintiff produced no Spanish grant — in fact no title
of an earlier date than 1836. The error then, if there be any, is
in favor of the defendant — and the jury have found that the
King's wharf is above the south line of Government street; con-
sequently the defendants have not encroached on the plaintiff's
property, and the location of the United States surveyor is not
correct.
The "Montusa wharf, was upon the site of the King's wharf in
1818, and is shown by the map of Dinsmore to have been above
the line of the Montusa buildings, as there laid down. This map
is the most unsatisfactory evidence. True the larger wharf which
was subsequently erected by Tankersly, was in a different po-
sition ; this seems to have confused some of the vvitnesses, but
the verdict of the jury was satisfactory to the Circuit Court.
COLLIER, C. J. — The report of the commissioner for the
examination of land claims east of Pearl river, merely states that
Wm. Pollard claimed as the original claimant a Spanish permit
dated 11th December, 1809, for an unknown quantity of land,
situate in Mobile, issued by Cayetano Perez, but of which there
had been no survey, inhabitation, nor cultivation. In respect to
which the commissioner remarked that the claim was forfeited
JANUARY TERM, 1840. 039
Doe ex dem. Pollard's heirs v. Greit, et al.
under the Spanish law for the want of inhabitation and cultiva-
tion.
Thus stood the title of the lessors of the plaintiff, (assuming that
they are the heirs of VVni. Pollard, the claimant,) when the act
of 20th May, 1824, was passed. The second section of that act
which is alone pertinent to the case before us, enacts, " that all
the right and claim of the United States to so many of the lots of
ground east of Water street, and between Church street and
North Boundary street, now known as water lots, as are situated
between the channel of the river and the front of the lots known
under the Spanish government as water lots in said city of Mo-
bile, whereon improvements have been made, be, and the same
are hereby vested in the several proprietors and occupants of each
of the lots heretofore fronting on the river Mobile, except in cases
where such proprietor or occupant has alienated his right to any
such lot now designated as a water lot, or the Spanish govern-
ment has made a new grant or order of survey for the same,
during the time at which they had the power to grant the same ;
in which case, the right and claim of the United States shall be,
and is hereby vested in the person to whom such alienation, grant,
or order of survey was made, or in his legal representative : Pro-
vided, that nothing in this act contained shall be construed to af-
fect the claim, or claims if any such there be, of any individual,
or individuals, or of any body politic or corporate." [Land
Laws, ed. 1838, part 1.] This section relinquishes to the propri-
etors of what were known as water lots under the Spanish gov-
ernment, all the right and claim of the United States to so many
of the lots of ground east of water street, within certain limits,
and known as water lots in 1824, whereon improvements were
then made, as are situated between the channel of the river and
the front of those that were water lots in Spanish times, &c. It
does not appear from the record that the lessors or their ances-
tor were the proprietors in 1824, of a lot lying oq the west side
of Water street, or elsewhere in the city of Mobile; so that they
can only claim under the statute of 1824, in virtue of the retro-
spective effect of the act of 1830.
Let us briefly consider what was the predicament of the de-
fendant's title at this latter period, and what influence the act of
1830 has upon it, even if it relates to the same property. That
statute enacts, " that there shall be, and is hereby confirmed unto
940 ALABAMA.
Doe ex dem. Pollard's heirs v. Greit, et al.
the heirs of William Pollard, deceased, a certain lot of ground
situated in the city of Mobile, and bounded as follows, to wit : on
the north by what was formerly known as John Forbes and
company's canal ; on the west by Water street ; on the south by
the King's wharf; and on the east by the channel of the river;
and that a patent shall issue in the usual form for the same : Pro-
vided, That this act shall only operate as a relinquishment on the
part of the United States, of all their rights and claim to the above
described lot of ground, and shall not interfere with or affect the
claim or claims of third persons." [Laws U. S. 531.]
If Pollard had a claim to the lot confirmed to him, the confir-
mation would relate back to the time when the incipient title at-
tached, if the fee was in the United States. But it is not compe-
tent for Congress, by a mere enactment to confer upon its gran-
tee, a title which had already vested in a third person ; and in the
present case, such a purpose is expressly disavowed. The pro-
viso to the act we are considering, declares that it shall only ope-
rate as a relinquishment on the part of the United States of all
their right and claim, and shall not interfere with, or affect the
claims of third persons. This is quite sufficient to show, that if
the title to the lot described in the act, had passed out of the fede-
ral government, the act was itself inoperative.
The title under which the defendants claim, commenced in
1803, and was confirmed by an act of Congress of the 8th May,
1822, entitled " An act confirming claims to lots in the town of
Mobile, and to land in the former province of West Florida,
which claims have been reported favorably on by the commis-
sioners appointed by the United States." [Land Laws, ed. 1838,
part 1, p. 348 ; see also. Id. pp. 208-316.] This claim was found-
ed on a " Spanish permit" to Anthony Espejo, of which the com-
missioner reported no survey had been made ; consequently, un-
der the eleventh section of the act of 1819, it was surveyed, and
its boundaries ascertained. By a patent certificate issued by the
rec^ister and receiver of the land office at St. Stephens, the lot in
virtue of which the defendants claim the premises in question, is
described " as a lot of ground within the city of Mobile, begining
at the south west corner of Government and Water streets, and
running thence with Government street, S. 76, W. 149 4-12 feet
to a stake, thence S. 11, E. 64 feet to a post, thence N. 76, E.
J49 4-12 feet to Water street, thence along said street N. 11, W,
JANUARY TERM, 184G. 941
Doe ex dem. Pollard's heirs v. Greit, et al.
64 feet to the begining, containing nine thousand five hundred
and fifty-seven feet, English measure."
The location of this lot shows a front on Water street of one
hundred and forty-nine 4-12 feet ; and the proof very fully estab-
lishes that it was known under the Spanish government as a wa-
ter lot ; that it is -situated between Church street and North
Boundary street ; that improvements were made on the lot in
front of it between Water street and the channel of the river, prior
to May, 1824, by those under whom the defendants deduce title.
This being the case, what title remained in the United States to
relinquish by the act of 1836 to the lessors of the plaintiff"? Did
not the confirmation of Espejo's claim in 1822, and the act of
1824 invest his heirs not only with the land embraced by the
Spanish permit, but also with the reclaimed land lying east of
Water street and west of the channel of the river ? Does not the
act of 1824 operate as a grant in favor of the persons coming
within the categories it prescribes, and thus estop Congress from
making a valid disposition of the same property, by a subsequent
enactment intended to operate either as a primary or secondary
conveyance ; more especially if the second act be not sustained by
a legal obligation resting on the Federal Government ? And if
it be a grant where is the necessity for issuing a patent in order to
consummate the grantee's title ? [See Hallett & Walker, et al.
V. Doe, ex dem. Hunt, et al., 7 Ala. Rep. 882.]
But ifthese questions should all receive an answer unfavora-
ble to the defendants, it might then be asked, whether, as the shore
of the Mobile river was vested in the Stale, in trust for the pub-
lic, previous to reclamations made east of Water street, Congress
could enact any law which would impair the right of the State
by granting the soil of what was the shore when the State be-
came the fiduciary proprietor? We think a negative response
is furnished by the depision of the Supreme Court of the United
States in Pollard's lessee v. Hagan, et al. 3 How. Rep. 212.
See also Doe, ex dem. Kennedy v. Bebee, ante 909.
If all these objections to the plaintiff''s title he untenable, then
we would say, that there is no error in the charge to the jury pre-
judicial to his rights. It referred the location of the King's wharf
to the ascertainment of the jury, remarking that as this was the
south boundary of the plaintiff''s confirmation, if they found it to
be north of Government street, the defendants were not shown
942 ALABAMA.
Shehan v. Hampton.
to be in possession of any part of it, and they should return a ver-
dict for the plaintiffs. But if the King's wharf lay south of Gov-
ernment street, the plaintiff was entitled to recover the land ex-
tending as far south as the wharf; because his title, in case of
conflict, was superior to the defendants. This, it seems to us,
conceded to the plaintiff quite as much as he could have asked.
What has been said of the effect of the acts of 1824 and 1836
almost covers the entire ground of the charges prayed and re-
fused. . If it is incompetent for Congress by a legislative enact-
ment to grant to one person land which it has already granted
to another, it is difficult to conceive why a patent issuing in vir-
tue of such inoperative grant, should itself be conclusive in a
court of law, of the title of the patentee- We have not thought
it necessary to scan with particularity the descriptive terms of
the patent adduced by the plaintiff. If it describes the land by
other metes and bounds than the act of 1836 designates, as to the
excess it professes to convey it must be merely void not only in
equity, but at law. This point was so ruled in Doe, ex dem. Pol-
lard's heirs v. Files, [3 Ala. Rep. 47.] This decision now re-
ceives our entire approbation ; and is fully sustained by Stoddard,
et al. V. Chambers, [2 How. Rep. (U. S.) 284.]
The consequence is, that the judgment of the Circuit Court is
affirmed.
SHEHAN V. HAMPTON.
t
1. In a plea under the statute discharging a surety, when the creditor, after
notice in writing, omits to proceed on the security, it is not necessary to
aver that the surety apprehends tliat his principal is ahout to become in-
solvent, or that he was about to migrate from the State without paying the
debt ; nor is it necessary his apprehension of these facts, or either of them,
should be set out in the notice.
a. A notice which omits to point the creditor directly to the principal, whom
he is required to proceed against, or to the security, on which he is requir-
ed to proceed, is of no effect, either under the statute or at common law.
JANUARY TERM, 184G. 943
Shehan v. Hampton.
3. The discharge of a surety, by means of the statutory notice, must be plead-
ed specially.
4. When a demurrer is improperly sustained to a plea, but the party defend-
ant has the benefit of his defence before the jury on another plea, or the
record shows he is entitled to no defence under the plea overruled, the
judgment will not be reversed.
Writ of Error to the Circuit Court of St. Clair.
Assumpsit by Hampton, upon a note payable to him as execu-
tor of the estate of Joel Chandler, and made by Shehan, and also
by Joel Chandler and one McCoy, neither of whom were sued in
this action. The note is dated 16th September, 1840, payable
one year after date.
With the general issue, the defendant pleaded a plea to this
effect, viz :
" The said defendant saith actio non, because he says he is the
surety of Joel Chandler, one of the makers of the note sued on,
and that he as such surety, at, to- wit, in the county aforesaid, on
the 18th day of September, 1841, gave to the said plaintiff notice
in writing, according to the statute in such case made and pro-
vided, requiring the said plaintiff to sue on said note as soon as
the law would permit : and the defendant in fact saith, that the
said plaintiff did not, in a reasonable time thereafter, and after the
same became due, commence an action on said note, and proceed
with due diligence by the ordinary course of law to recover
judgment for, and by execution to make the amount due by the
said note ; and this the defendant is ready to verify. Where-
fore, (fcc."
The plaintiff demurred to this plea, and his -demurrer was sus-
tained.
At the trial the defendant proved the note sued on was given
for the purchase of land, sold as the property of Joel Chandler,
deceased, and that he was the surety for Joel Chandler, one of
the makers of the note. He then proved the service of the fol-
lowing notice on the plaintiff, on the 18th September, 1841, viz:
To the executrix and executors of Joel Chandler, sen. deceased.
You and each of you are hereby notified to collect all monies due
to the estate of Joel Chandler, dec'd, for which I stand as surety,
as well for the lands as for the personal property of the said de-
ceased, as soon as the law will permit, or I shall no longer stand
944 ALABAMA.
Shehan v. Hampton.
as surety — in which you can use your own pleasure, but at your
own risk.
Your's, respectfully, John Shehan.
September 17, 1841.
This the defendant offered to read, under the plea of non as-
sumpsit, as a written statutory notice, under the 6th section of an
act found in Clay's Digest, 532 ; the Court refused, because there
was no special plea under which it could be given in evidence ;
but permitted it to go to the jury as a verbal notice to sue. The
defendant excepted to the refusal of the Court to allow it to go
to the jury as a statutory notice.
The overruling of the plea and the refusal of the Court to al-
low the notice to go to the jury as a statutory notice, is now as-
signed as error.
B. Pope, for the plaintiff in error, insisted,
1. That the statute (Digest, 532, § G.) never contemplated the
notice should set out the surety's grounds for apprehending loss, or
a technical description of the notes, &c. which were the objects
of notice. Such a construction will defeat the intention of the
law-makers, as not one in ten could pursue the terms of the act.
The plea is substantially in the terms of the statute, and the time
alledged shows the notice was given after the maturity of the
note.
2. The proof of discharge was, however, admissible under the
general issue,and sht)uld have been allowed as a statutory notice.
S. F. Rice, contra, argued,
1. The statute must be construed according to its terms. This
privilege is given to the surety only when he shall apprehend the
insolvency of his principal, or that he is about to migrate from the
State without making payment. In every such case the right is
given, but not beyond it. The plea therefore must show the ex-
istence of the facts which authorise the notice.
2. The plea should have set out the notice actually given, so
that the Court might judge if the statute was pursued. It is not
sufficient to aver that the notice was given according to the sta-
tute. This is a legal conclusion, and facts are required upon
which to found it. [Frazer v. Thomas, 6 Ala. Rep. 169.]
3. The notice given in the present case is clearly defective as
JANUARY TERM, 1846. 945
Shehan v. Hampton.
a statutary notice, as it does not show for whoni Shehan was su-
rety-. It conveys no information to the party that he is required
•to sue Joel Chandler the principal. But if good, it is no dis-
charge unless specially pleaded. A statutory discharge must al-
ways be pleaded. [BroWn v. Hemphill, 9 Porter, 206.]
4. As a notice to sue, it was allowed to go to the jtiry, but
such a notice only involves the enquiry into the actual injury oc-
casioned by the omission, and here the verdict ascertains that
none has been cuased. . • - , •.'■.. ,r -• . • • ■
GOLDTHWAITE, J.— 1. To a full understanding of the
questions on the demurrer to the plea, it is necessary to recite the
statute on which it is founded. So much as is necessary for this
purpose, is- in these Words : "When any person shall become
bound as security, by bond, bill or note, for the payment of mo-
ney or any other article, and shall apprehend that his principalis
likely to become insolvent, br to migrate from this State, without
previously discharging such bond, bill, or note, it shall be lawful
for such security,. in. any such case, (provided an order shall have
accrued on such bond, bill or note,) to require, in writing,
of his creditor, forthwith to put the bond; bill or note, by which
he may be bound as security as aforesaid, in suit, and unless the
creditor so required to put such bond, bill or note in suit, shall in
a reasonable time commence an action on such bond, bill or note,
and proceed with due diligence in the ordinary course of law, to
recover judgment for, and by execution to make thbampunt due
by said bond, bill or note, the creditor so failing. to comply with
the requisition of such security shall thereby forfeit the right which
he otherwise would have had to demand and receive of such se-
curity the amount of such bond, bill or note."
It will be perceived, the omissi/Dn to sue after the statutory no-
tice is given, involves the entire forfeiture of the debt,, so far as
the surety is connected with it, wholly independent of any ques-
tion of injury growing out of the delay to sue. In Bruce v. Ed-
Wards, 1 Stewart, 11, this statute- was considered as cumulative
merely, and did not abridge the right of the surety, by the com-
mon law, to give notice to the creditor in any other mode. It
was also held, that by the common law, the omission to sue in-
volved the discharge of the surety, if after the notice the princi-
pal became insolvent. It results therefore from this decision,
110
946 Alabama:;
Shehan v. Hampton.
which has been recognized ever since as a correct exposition of
the law, that a general notice to sue the principal is different from
the notice under the statute. In the one case the surety is dis-
charged only if he is injured by the delay, but in the other abso-
lutely. It seems to me this calls for the strictest construction of
the statute, and by -its terms the discharge is allowed in two cases
only, viz: when the surety apprehends his principal is likely to
become insolvent, or that he is about to migrate from the State
without previously paying the debt, that the surety ought to be
held to express this apprehension in his -notice to the creditor.
If this is iK>t required j how is the creditor, to understand whether
the notice is under the common law or under the statute. The
majority of the Court, however, entertain a different opinion, and
consider the apprehensions of the surety as matter which cannot
be put in issue, and therefore need not be stated either in the no-
tice or plea. We all concur that the plea is unexceptionable in
other respects, as it substantially pursues the statute. The plea
being sufficiently pleaded, in the opinion of the majority of tfeie
Court, the demurrer was improperly sustained.
2. The question upon the admission of the notice to the jury,
involves two points : first, whether it is good as a statutory no-
tice ; and second, if it is, whether it was admissible under the
general issue.
Independent of my own opinion, that the notice is defective
under the statute, for the reason stated in connection with the
plea demurred to, we all consider it bad, alike under the statute
and at common law, in not setting out that the party giving the
notice is, in point of fact, the surety for Joel Chandler. Conced-
ing that the notice in other; respects, may be general, or at least
with regard to the sum, date, and description of the instrument
by which the surety is bound, yet, in this instance, the notice or
writing gives no intimation to the creditor, that he is required to
proceed by suit upon any note in which Joel Chandler is the prin-
cipal debtor. The notice is too general and indeterminnte in this
particular, to warrant any presumption thatthe defendant demand-
ed, this particular note should be put in suit. When a statute
requires an individual to be designated to another, there must be
sufficient information given to enable the person to be ascertain-
ed with certainty. [Chichester v. Pembroke, 2 N. H. 530.] - ■
JANUARY TERM, 1846. 947
Shehan y. Hampton.
3. If the attempt was to relieve the surety in consequence of
the omission to proceed against the principal after notice, under
the common law rule, the evidence wouM certainly be admissible
under the general issue, because that is a defence by the common
haw, and shows that ex equo et bono, the plaintiff is not entitled to
his action. [Manchester Co. v. Sweeting, 10 Wend. 162.] But
when the defence is under the statute, the omission to she is a dis-
charge, independent of all equitable considerations. In this re-
spect, it does not seem to differ from a discharge produced by the
insolvent or bankrupt statutes, which must be pleaded specially.
[1 Chitty's Plead. 474.] We therefore incline to the opinion that
when this statutory notice is interposed as a bar, it can only be
done by a special plea.
4. It is true a technical error was committed in sustaining the
demurrer to the special pleti ; but the defendant shows this error
is wholly immaterial, for he produces the notice which he gave,
and had all the advantage of itj as a common law notice, under
the general issue, and that too, when in point of law, the notice
was insufficient to let in the defence. The jury, in effect, here
declared, he has sustained no injury from the plaintiff's omission.
In McKenzie v. Jackson, 4 Ala. Rep. 230, and Rakes v. Pope, 7
lb. 162, we held tiiere was no sufficient error to reverse the judg-
ment, although a demurrer to pleas had been improperly sustain-
ed, if the same defence was admitted, and admissible under other
pleas. In the present case the party has had all the benefit from
his defence, which under the most favorable circumstances he
would be entitled to ; and it seems to us a strained presumption,
to suppose he may have another written notice, which, in the
event of another trial, will fit his plea. We think the principle
of the cases just cited, extend to govern this. ^
Judgment affirmed.
948 ALA'BAMA; '^
Agee V. Steele.
AGEE V. STEELE.
1. S, having a judgment against A, Verbally agreed viith him that he would
' bid off the land of A, subject to an agreement to be afterwards entered in-
to between tliem. Shortly afterwards they met, and ascertained the amount
due fi:om A to S, including the note here sued upon, and it was then agreed
in writing, that A should have two years to pay the debt, by four equal
instalments, and that upon the payment of the debt, S Would convey the
land to A. A failed to pay the instalments, and by consent of A, S sold
the lg,nd — Held tliat the verbal agreement was void under the statute of
frauds, and the written agreement void for want of consideration. That
it was a mere gratuitous promise, which S might have disregarded, and
brought suit 'immediately fof the recovery!_of the debt, andtherefore d id
not exonerate the surety.
Error to the Circait Court of Monroe. ; - .' -•
Assumpsit on a promissory note for $200 made by one John
Peebles and the pkintifF in error.
From a bill of exceptions, it appeared in evidence that Peebles
was the principal, and Agee the surety in the note sued on. That
in May, 1840, certain real property belonging to Peebles, was
about being sold by the sheriff under execution, and a verbal
agreement was entered into, between him and Steele, that the
latter should bid off the land, subject to an agreement to be there-
after entered into between the parties, which he accordingly did,
at $750, and took the sheriff's deed therefor. It was proved
that the property at the time of the sale was worth $3000.
Shortly after, Peebles and Steele ascertained the amount the
latter owed the former, which, including the price bid for the
land, and the note here sued on, amounted to $1566' 65, and
thereupon, Steele executed to Peebles, the following instrument
of writing ; "
« Whereas, I am by purchase at sheriff's sale, the owner of
the lands and tenements upon which are situate the saw mill and
improvements now possessed by John Peebles, to wit : &c. (de-
scribing the lands ;) and the said John Peebles being now indebt-
ed to me in the sum of $1560 65, being the amount I bid and
JANUARY TERM, 1846. 949
Agee V. Steele.
paid for his land, and the amount which he owes me in addition
thereto. Now if the said John Peebles, will pay the said sum of
$1566 65, with interest thereon as follows, to wit: one fourth
part with the interest thereon in six months — one fourth part with
the interest thereon in twelve months — one fourth part with the
interest thereon in eighteen months — and one fourth part with
interest in twenty-four months from this date, then I obligate my-
self to convey to said Peebles, his heirs, &c. the above described
land and premises. But it is distinctly understood, that upon the
failure of the said Peebles to pay the first, or any subsequent in-
stalment, then the said Steele may and sh^l forthwith enter into
•possession of said land and premises. 13 July, 1840.
Stephen Steele.
Peebles never paid any of the" instalments, and some eighteen
months afterwards, Steele with the consent of Peebles, who had
remained in possession, sold the land for $800.
The defendant's counsel moved the Court to charge, that by the
agreement Peebles had the option, either to pay the instalments
and take the lands, or to decline doing so, and if he did, that
Steele had tTie full ownership of the lands, and Peebles was ex-
onerated from the payment of the debt, which the Court refused.
Further, that if the surety was not privy to, and consenting to
the delay given upon the payment of the debt, that he was dis-
charged, which the Court also refused, and the defendant except-
ed. This is now assigned as error.
Peck & Clark, for plaintiff in error, did not insist on the first
point, but argued that the surety was discharged by the agree-
ment entered into for delay. That although the verbal agree-
ment was not obligatory, yet it constituted a moral obligation,
which was a sufficient consideration to sustain the written con-
tract afterwards entered into, and which might be enforced in
Chancery. That it was in effect a mortgage. They cited 2
Porter, 414; 2 Metcalfe, 176; 3 Id. 255.
Blount, contra. There is no consideration to support the
agreement. It was neither beneficial to Steele, or injurious to
Peebles, and was a mere kindness, o/ gratuity, not binding in
law, and did not restrain Steele from suing at any time he pleas^
950 y ALABAMA.
Agee V. Steele.
ed on this contract. Mere delay in suing, ^wilh not absolve the
surety. He cited 6 Ala. 533.
ORMOND, J. — A contract between the creditor and the prin-
cipal debtor, which prolongs the time of payment of the debt,
without the consent of the surety; absolves him from liability for
the debt., A contract to produce this result, must be one which
is obligatory on, and may be enforced by the parties to it, and
the single question is, what is the nature of the contract relied on
in this case, for the discharge of the surety.
The verbal agreement about the purchase of the land, was
clearly invalid under the statute of frauds, and was so admitted
to be in the argument, and the written contract is equally desti-
tute of validity, foi* want of consideration. It was a mere gra-
tuitous promise, to "wait with the debtor for two years, to enable
him to pay by instalments, the debt which he owed, and the mo-
ney which was advanced upon the sale of the land, and created
no legal obligation whatever upon Steele, who might have dis-
regarded it, and brought suit immediately for the debt. It did
not therefore abridge any right of the suret)'', who might either,
have paid the debt himself, or required Steele to bring suit for its-
recovery.
It is urged that the verbal agreement created a moral obliga-
tion, which will support the written contract afterwards made.
A moral obligation to do an act, may support an express prom-
ise to perform it, as a promise to pay a -debt barred by the sta-
tute of limitations, or created during infancy. In these and other
cases of imperfect moral obligation, which might be supposed,
the party is in morals, and conscience, bound to do the act, al-
though by law he cannot be enforced to do it. Nothing of that
kind exists here. A mere naked promise, though, it may create
an honorary, does not constitute a moral obligation, in the pro-
per legal sense of that term, though in ethicks a man may be said
to be morally bound, to perform every promise he voluntarily
makes. The common law takes no cognizance of such promises,
and their being in writing adds nothing to their validity.
There is not a little of refinement and subtlety, in this doctrine
of the discharge of sureties by contracts between the creditor and
principal debtor, to which they have not in form, assented, but,
which in reality are for their benefit. A modern English Chan-
JANUARY TERM, 1846. 951
The State v Kreps.
cellor has declared, that "it was a refinement of the Court of
Chancery, and he would not refine upon it," and although we
must enforce the law upon this subject as we. find it, we certain-
ly shall not extend its boundaries, or stretch its limits, beyond its
present dimensions.
In our opinion the law was correctly expounded by the Circuit
Court, and its judgment must be affirmed.
", ' THE STATE v. KREPS.
1. The 11th section of-the 8th chapter of the Penal Code which autliorizes a
nollt prosequi to be entered and another indictment to be preferred,
where, in the progress of a criminal trial, tliere shall appear such a vari-
ance between the proof adduced and the indictment, as will require the
acquittal of the accused, unless he willassentto an amendment, is not un-
constitutional.
2. Where an indictment charges a larceny of a bank note and other articles,
and there is a variance between the indictment and the proof in respect to
the bank note only; the Court cannot, under the 11th section of the 8th
chapter of the Penal Code, permit a nolle prosequi to be entered, that an-
other indictment may be preferred, because the accused Avill not consent
to an amendment of tlie indictment so as correctly to describe tlis bank
' note. '^ . - ■ f
Upon points referred from the Circuit Court of Randolph.
The defendant was indicted in the Circuit Court of Talladega,
for breaking and entering the storehouse of Alfred Wood and
Nelson Wood, and stealing therein " one gold watch of the va-
lue of two hundred dollars, ten silver watches of the value of fifty
dollars each, one bank bill of the denomination of fifty dollars, is-
sued by the Bank of Mobile, of the value of fifty dollars, all of the
the proper goods and chattels of the said Alfred Wood and Nel-
son Wood." Upon the application of the accused the venue was
952 ALABAMA.
The State v. Kreps.
changed to Randolph, where he was tried, found guilty and sen-
tenced to four years ifnprisonment in the penitentiary.
Upon the trial, certain legal questions were reserved, and
which are referred to this Court as novel and difficult. These
questions may be thus stated: 1. Nelson Wood testified that
in addition to the gold watch and ten silver watches, there were
stolen from his house " a bank bill of the denomination of fifty
dollars, issued by the Branch of the Bank of the State of Alaba-
ma at Mobile, worth something near fifty dollars, and other bills
of various denominations, amounting in all to eighty-three dol-
lars." The defendant's counsel moved to exclude this evidence
from the jury, because it described a bank bill variant from the
one described in the indictment ; the motion was overruled and
the defendant excepted. ' - "
2. The solicitor moved, under the 1 1th section of the 8th chap-
ter of the Penal Code, that the defendant be asked to assent to
the amendment of the indictment, sp as to correspond with the
proof, or in case he refused to do so, that then the solicitor be
permitted to enter a nolle prosequi, and prefer another indictment.'
Thereupon, the Court being of opinion that the variance between
the indictment and the proof was so material as to authorize the
acquittal of the defendant, determined,^ that unless the defendant
assented to the proposed amendment, the motion of the solicitor
be granted. The defendant objected to the amendment, and to
being put to his election to submit to^ it, or the alternative, and
demanded that the trial should proceed without alteration of the
indictment. These objections were overruled, and the defend-
ant, under the decision of the Court, assented to the proposed
amendment, that the words "Bank of Mobile," be stricken out,
and the words " the Branch of the Bank.of the State of Alabama
at Mobile," be inserted in their stead ; which was accordingly
done.
The proof tended, to show that all the property was stolen at
one time ;' the watches were subsequently fouad in a cellar, and
the money was found and reclaimed under the following circum-
stances, viz : on the second day after the larceny was committed,
the defendant was imprisoned ; some time afterwai'ds he was
taken out of prison and went in company with two persons, who
were sworn as witnesses on the trial, and drew from uqder the
sill of an unoccupied house, a purse,, which he handed to thern, rer
.•I'
>v.. JANUARY TERM, 1846. 953
^-^^ -^— —
The State v Kreps.
marking, here is the money. The witnesses opened the purse, and
found it to contain $78, viz: abill of fifty dollars on theBranch of the
Bank of the State of Alabama at Mobile, and other money, which
they handed to Nelson Wood. One of the witnesses testified thatN.
Wood had previously described the fifty dollar note to him as he
found it in the purse, and the latter testified, that from his previ-
ous knowledge and examination of the fifty dollar note that had
been stolen, he felt confident that the note thus given up to him
was the same. The defendant had been arrested originally on it.,
the discovery of the watches, and before the money was discov-
ered. It was the opinion of the Court, that independent of the
testimony in respect to the discovery and reclamation of the mo-
ney, there was not sufficient evidence to authorize the convic-
tion of the defendant.
The jury having returned their verdict, the defendant moved
in arrest of judgment — 1. The indictment does not describe the
property charged to have been stolen with sufficient accuracy.
2. There are defects apparent upon the face of the indictment.
This motion was overruled, and the questions thereupon arising,
were referred to this Court as novel and difficult.
S. F. Rice and A. White, for the defendant, made the follow-
ing points : 1. The 11th section of the 8th chapter of the Penal
Code' is irreconcilable with the 5th and 6th amendments of the
constitution of the United States, and the 10, 11, 12 sections of
the declaration of rights of the Alabama constitution; it is conse-
quently unconstitutional; and this conclusion may be deduced
from the previous decisions of this Court. [Clay's Dig. 439; 5
Porter's Rep. 484 ; 2 Ala. Rep. 102 ; 4 Id.^603 ; 10 N. Hamp.
Rep. 558.] If the Court may force a defendant to assent to
an amendment, or upon his refusal direct a nolle prosequi, there
can be no limitation as to the character of the amendment ; for
if the power of the Court be conceded to any extent, it may be
exercised, even so as to charge an offence entirely different. Yet
' no one it is apprehended would contend that it should be carried
thus far.
The evidence in respect to the discovery and reclamation of
the money could have been considered by the jury without an
amendment of the indictment, and applied to the charge of steal-
ing the watches. There was then no necessity for amending, so
120
954 ALABAMA.
The State v. Kreps.
as to authorize the conviction of the defendant for stealing the
watches; and consequently not such a variance between the alle-
gations and proof as would for that cause have authorized an
acquittal. »
Now conceding that there may have been a conviction for the
watches without the amendment, and still the prisoner has been
prejudiced by the remark of the judge in their hearing, that " in-
dependent of the evidence in relation to the money," the testimo-
'iiy was not sufficient to " authorize a conviction." This was tan-
tamount to a declaration to the jury, that they should convict the
defendant if the amendment was made.
There is no such bank, as the « Bank of Mobile." [Clay's Dig.
128, § 16.] The stealing of a bill issued by the Bank of Mobile,
is not indictable. That which is called an amendment, is the in-
troduction of a new offence into the indictment.
The indictment as amended, is for stealing ci "bank bill."
This does not follow the statute, or show what description of bill
was stolen ; and is consequently defective. [1 Binn. Rep. 201 ;
13 Peters' Rep. 176; 1 Nott & McC. Rep. 9 ; 2 Har. & G. Rep.
407 ; 3 Binn. Rep. 533 ; Clay's Dig. 425, § 57.] The indict-
ment does not aver that the bank bill was issued by an incorpo-
rated institution, or that the plaintiff in error knew it to be of va-
lue ; nor does it aver that the bill was lawful. [4 Ohio Rep.
386.]
Attorney General, for the State. The 11th section of the
8th chapter of the Penal Code, confers no power upon the Cir-
cuit Judge, except at the defendant's election, which he did not
possess previous to its passage, and this election thus accorded
to him, cannot render the statute unconstitutional.
If the indictment had embraced the charge of stealing a bill of
the Bank of Mobile only, then it would have been competent for
the Court to have recognized the prisoner upon the failure of
proof to answer for a larceny of a bill of the Branch of the Bank
of the State of Alabama, at Mobile. Sooner than submit to this,
the defendant agreed to the amendment, and certainly has no
right to complain.
There could be no case to which the section of the code which
is objected to is more applicable. ,.
The indictment is sufficiently definite in the description of the
JANUARY TERM, 1846. 95i
The State v. Kreps.
property stolen. This Court cannot know whether the jury in-
tended by their verdict to affirm the larceny of all, or of what
article mentioned in the indictment. But if the indictment was
for the larceny of the bank bill alone, it is sufficient. [Clajjjs
Dig. 425, § 56 ; Arch. Cr. L. 46, and precedents under the Eng-
lish statutes.] .
COLLIER, C. J. — It is enacted by the 11th section of the
8th chapter of the Penal Code, that " whenever, in the progress,
of a criminal trial, it shall be found, that there is such -a material
variance between the allegations of the indictment, and the proof
adduced, as will for that cause authorize the acquittal of the ac-
cused, and he shall not assent to the amendment of the indictment,
so as to correspond with the proof, it shall be lawful for the so-
licitor, with the leave of the Court to enter a nolle prosequi at any
time before the jury shall retire, and prefer another indictment at
the same or any subsequent term of the Court," &c. [Clay's
Dig. 439.J Of the constitutionality of this enactment, we think
there can be no well grounded doubt. If the discrepancy "be-
tween the allegations of the indictment and the proof adduced,"
be such as will authorize the acquittal of the accused, a verdict
of 710^ guilt!/ cannot be pleaded in bar of another indictment
adapted to the admission of the evidence. What objection then
can there be to the defendant in such case waiving a verdict in
his favor, and consenting to an amendment of the indictment ?
By this course of procedure, the administration of justice may be
expedited ; fot if the defendant is acquitted in coijsequence of the
inappropriateness of the indictment, when the proof shows his
more than probable guilt of an offence against the criminal law,
the Court should certainly commit, ©r recognize him to answer to
another indictment. It is frequently a matter of consequence,
not only to the innocent, but to the guilty, that they should have
a speedy trial — to the former that they may be acquitted — to the
latter that the dreaded punishment be not long suspended ; the
more especially where the accused is compelled to submit to im-
prisonment, either before or after conviction.
If the defendant in the case at bar had been indicted merely for
the larceny of the fifty dollar bank note, there could have been
no objection to allowing the amendment. But the indictment
embraces not only the bank note, it charges also the stealing of
956 ALABAMA.
The State v. Kreps.
one gold and ten silver watches. Now in respect to the latter, it
is not pretended that there was any variance in the proof, what-
ever opinion may have been entertained as to its sufficiency ; and
a nolle prosequi could not be entered, consistently with the rights
of the accused in all criminal prosecutions.
When an indictment for a felony has been submitted to a jury
upon the plea of not guilty, it is not allowable for the Court to
permit a nolle prosequi to be entered, (without the consent of the
accused,) that he may be again indicted for the same offence. It
is the office of his triors to make " true deliverance" between the
State and himself, and it is beyond the competency of the judge
to arrest the due course of law by withdrawing the cause from
the jury. This principle has been recognized for a period of time
« beyond which the memory of man runneth not to the contrary."
Its antiquity and stability make it a fundamental doctrine in crim-
inal jurisprudence. See The State v. Williams, 3 Stew. Rep.
476 to 479, and cases there cited ; Ned v. The State, 7 Porter's
Rep. 187.
The amendment, it must be observed, was not willingly assent-
ed to by the defendant, but his consent was given to prevent the
withdrawal of the issue from the jury, and his trial upon a second
indictment. It is sufficiently apparent from what has been said,
that the Court had not the power in respect to the watches, to
compel the defendant to e^ect between such alternatives ; and the
bank bill being embraced in the same indictment as one of the
objects of the larceny, the case does not come within the provis-
ion of the Penal Code which has been cited. We express no
opinion upon the sufficiency of the evidence to convict for steal-
ing the watches, without the amendment of the indictment ; nor
will we undertake to determine to what extent amendments are
allowable under that enactment.
This view is decisive of the case, and we will not consider the
questions raised as to the sufficiency of the indictment. The
judgment of the Circuit Court is reversed, and the cause remand-
ed, that it may be proceeded in according to law. [See The
State V. Williams, supra; Ned v. The State, supra; The State v.
Hughes, 2 Ala. Rep. 102.] And the prisoner will remain in cus-
tody until he be legally discharged.
•/ *«.
INDEX.
ABATEMENT.
1. In practice, no formal judgment ofrespondeas ouster is entered upon the
sustaining a demurrer to a plea in abatement. The sustaining of the de-
murrer is entered on the record, and if the defendant wishes to plead over
he is permitted to do it Massey v. Walker, 167.
See Pleading, 8.
See Practice at Law, 2.
ACOOUNTS.
1. Where a party presents an account to his debtor, in which are stated both
debits and credits, he shall not claim the benefit of the former without sub-
mitting to the latter also. Fitzpatrkk, AdrrHr, v. Harris, 33.
2. To charge one for articles which he did not authorize the purchase of,
but which came to the use of his family, it must appear that he knew the
fact, and did not object, or offer to return them. Grant v. Cole 8f Co., 519,
See Chancery, 22.
See Evidence, 65.
ACTION.
1. A brother-m-law, wrote to the widow of his brother, living sixty miles dis-
tant, that if she would come to see him, he would let her have a place to raise
her family. Shortly after she broke up and removed to the residence of
her brother-in-law, who for two years furnished her witli a comfortable res-
idence, and then required her to give it up : Held, that the promise was a
mere gratuity, and that an action would not lie for a violation of it. Kirk-
sey V. Kirksey, 131,
2, When an agent was employed to sell land, and took from the purchaser
the note of another individual, indorsed by the purchaser, it is no defence
in a suit on the indorsement, in the name of the agent, to show, that the
principal has received the amount of the purchase money, unless it is also
shown, that it came from the maker or indorser of the note. The agent
paying the money to his principal, acquired such an interest in the note as
to entitle him to sue upon it, Tankersky v. J. Sf Jl. Graham, ....... 'i'Vif
958 INDEX. N
ACTION— coMxmuED.
3. An action for refusing to comply witli a conti-act of sale, made with a sheriff
upon a sale of property under execution, is properly brought in the name
of the sheriff. Bell v. Owen, 312.
4. A sheriff who has lawfully seized slaves under an attachment, is not liable
in an action of trespass, if he refuse to permit the .defendant to replevy
them, although a valid bond with sufficient sureties may be tendered. —
Walker v. Hampton, etal., 412.
5. If adjoining proprietors enter into an agreement, one to keep up one-half
the fence, and the other the other half, an action of trespass cannot be
maintained by one against the other, for an injury caused by an insufficient
fence, but the remedy is for a breach of the contract. Walker v. Wa-
trous, 493.
See Constable and Surety, 1, 2.
See Guardian and Ward, 5.
See Indorser and Indorsee, 3.
See Pleading, 1.
ADMIRALTY PROCEEDINGS.
1. It is premature to render judgment upon a replevy bond, conditioned for
the delivery of a steamboat to the sheriff, at the same time that the boat
is condemned. Bell and Casey v. Thomas, « 527.
2. If a bond for the delivery of a boat seized under process, in a libel suit, is
good as a common law bond, it may be proceeded on as a stipulation, al-
though it does not conform to the statute. 76 527
See Deeds and Bonds, 2.
ADVANCEMENT.
1. When either money, or property, is advanced to a child, it will p^ma /fl-
oe be an " advancement" under the statute, and must be brought into
hatch pot ; but it may be shown that it was intended as a gift, and not as
an advancement ; or unless it be of such a nature that it cannot be pre-
sumed to be an advancement, as trifling presents, money expended for ed-
ucation, &c. The Distributees of Mitchell v. MitchelPs AdrrCr, 414
2. Where a father, by deed, conveyed real and personal property to two of
his minor children, declaring at the time that it was not given as an ad-
vancement, but was to be in addition to their equal share of the residue of
his estate — Held, that this was not an advancement, and that the testimo-
ny was properly admitted. lb 415
3. A father kept an account with his son, upon his books, which was added
up, and at the foot of the account was written by the father, " accounted
for, as so much that he has had of my estate ; if it is over his portion, he
jmust pay it back to them." No question being made of this as a testa-
/ INDEX. 959
ADVANCEMENT— CONTINUED.
mentary paper — Held tliat it was competent to explain the nature of the
items, and to detail a conversation the widow of the deceasdfl had with him
in relation to it, to show, that the account was not a debt due from the son,. ,
or an advancement under the statute. lb 41$
4. If a father, who has expended more money upon the education of one of
his children than the rest, wishes to make the others equal with him, by
giving him loss of his estate, he must do so by a will ; he cannot accom-
• plish it by considering the money so paid out, a debt, or an advancement
under the statute. lb 415
ALIEN.
1. The true construction of the two acts of the Legislature for the relief of
Elizabeth Morris, is, that she was made capable of inheriting the lands of ;
her uncle, James D. Wilson, in the same manner as if herself, her mother
and her uncle, had been native bom citizens. The declaration in the act,
that the land shall not escheat to the State, is a waiver of the right of the
State in her favor only, and will not enable her brother, who is an alien,
or was so at his uncle's death, to inherit as his heir. Congregational Church
at Mobile v. Elizabeth Morris, 182
2. The wife of an alien though an American citizen, is not dowable of his
lands. lb 183
3. Whether the saving in favor of creditors in the statute of escheats, applies
to the lands held by an alien at his death — Quere? But if it does apply in
sucha C£ise, the fact of such indebtedness would not prevent the escheat.
Nor could the land be sold by an administrator of the alien, for the pay-
ment of creditors, without authority for the Orphans' Court, as in other
cases. lb 183
AMENDMENTS.
1. The Court will not permit the sheriff to amend his return, after judgment
by default, so as to show that tlie writ was not executed, unless it were
shown that irreparable injury would follow from permitting the judgment
to stand, and then only upon terms which would not work a discontinuance.
It does not vary the case, that the motion is made by the defendant Mc-
Gekee v. McGehee, 86
2. Whether the remedy in such case must not be sought by mandamus, if
the Court below improperly refuse to permit the amendment — Queref
lb 86:
3. Where the clerk of the Court, in entering judgment, commits an error by
confounding two suits, it may be amended nunc pro tunc. Dobson, et al.
V. Dickson, use, &fc 252
4. When a writ of error is sued out in the names of D. A. and others, it may
960 INDEX.
AMENDMENTS— CONTINUED.
be amended by the transcript of the record, and the names of the proper"
party or parties substituted. Ellison v. The State, 273
5. A judgment nisi rendered upon a recognizance, when it does not conform
to the recognizance, may be amended nunc pro tunc ; and if a motion for
that purpose be overruled, the refusal may be revised on error. The Gov-
ernor, use, Sfc. V. Knight 297
6. When a suit by attachment is improperly commenced in the name of the
party to whom a note not negotiable is transferred without indorsement,
instead of using the name of tne person having the legal interest, and the
cause is afterwards appealed to the Circuit Court, the defect cannot then
be cured by substituting the name of the proper party in the declaration :
Nor can the note be allowed to go to the jury as evidence under the mo-
ney counts in a declaration in the name of the holder,'without proof of a
promise to pay him the note. Taylor v. Acre, 491
7. The surety is not bound beyond the penalty of the bond, and a judgment
against him for a larger sum will be here amended, at the cost of the plain-
tiifin error. Seamans, et al. v. White, .657
8. When the judgment of the Circuit Court, in a cause of forcible entry, is
reversed because the complaint was dismissed, instead of being remanded
that it might be amended in the Justices Court, and the Circuit Court is
directed so to enter its judgment, if it afterwards does so and renders costs
against the plaintiff in the certiorari, this is irregular, but the error is a cle-
rical misprision, and will be here amended at the cost of the plaintiff in
error. Tilman, et al. v. McRae, 677
9. When a notice is pleaded to by the sheriff, it is in the nature of a declara
tion, and may be amended on motion. Walker, et als. v. Tumipseed,. .679
10. The rendition of a decree by the Orphans' Court, for the distributive share
of the wife, in the name of the husband alone, is a clerical misprision, and
may be amended ; it is not an error of which he can complain. Parks v.
Stonum, », 752
11. After a cause commenced before a justice of the peace has been removed
by appeal or certiorari to a higher Court, the parties cannot be changed,
unless death or some other cause has supervened. Mooney, use, Sfc. v.
Ivey, 810
See Error, Writ of, 19.
See Judgment and Decree, 5.
See Practice at Law, 3.
See Record, 1.
APPEALS AND CERTIORARI.
1. Upon cerfiorori, judgment may be entered against a party to the original
INDEX. mi
APPEALS AND CERTIORARI-^coNTmCEB.
judgment, who did not join in the bond to obtain the writ of certiorari.
Dobson, et al. t. Dickion, use, ^c 252
2. Upon an appeal from a justice of the peace, the defendant and his sureties
;- aekiiowied^d that they were bound unto the plaintiffin a definite sum " for
' the payment of the principal, costs, charges and all expenses attending the
suit," between the plaintiff and the defendant, and tliat the latter had "ap-
^pealed from the justice's court of Beat No. 3, for the county," &c. to the
• :% Circuit Court, to be holden, &c. Held, that although the bond does not
:i -Conform literally to the act, yet it was substantially sufficient, and was equiv
. '^ ?ileBt to a condition " to prosecute the appeal to effect, and in case the ap-
.'i^ pellant be cast tlierein, to pay and satisfy the condemnation of the Court.'"
Windham, et al. v. Coates, tise, ^'c 285
j3^ The sureties in an appeal bond, are not liable beyond its penalty, and if a
- ^r^udgment is rendered for a greater amount, though objected to, in the pri-
mary court, it will be reversed on error, lb. .285
4, Where there is a defect in proceedings removed hy appeal or certiorari
-'^■vfrom a justice of the peace to the Circuit or County Court, a motion to dis-
miss, if available, should be made at the first term after the parties are in
Court, and before a continuance of the cause. Mford and Mixon v. CoU
son, use, Sfc 550
.5.. It is no sufficient ground to dismiss a cerftoran cause, that the petition was
JJL verified before the clerk of the Court instead of some officer authorized to
administer an oath. Jones, et al. v. Tondinson. 565
6. In certiorari cases, it is error to award judgment for damages on account
jj(.;-of delay merely, although the jury so find. A judgment so entered can-
not be considered as a clerical misprision, but is the fault of the party tak-
ing it, and vill be ^evfersed and here rendered for the proper sum, ChUds
V. Craivford. ^. 731:
7. After a cause commenced before a justice of the peace has been removed
;.vby appeal or certiorari to a higher Court, the parties cannot be changed,
»: unless death or some other cause has supervened. Mooney, nse, 8fc. v
Jj>03*. V' • ^ • -^10
8. Although the amount in controversy is less than fifty dollars, and the suit
was commenced before a justice of the peace, yet the platntiff who sues
; for the use of another, cannot recover for work and labor done by the ben-
/^^.eficial plaintiff, unless he stood in such a relation that the right to compen-
'^^jsation inured to him. lb ^ 810
'Arbitration and award.
}. Where a cause depending before a justice, of the peace, ie by agreement
. j.r<)f the parties, submitted to arbitrators, who hiade an award which was
121
962 INDEX.
ARBITRATION AND -AWARD— cohtinued.
entered up as the judgment of tlie Court, and an appeal taken to the
Circuit Court, the award is final, unless set aside for corruption, want of
notice, or other improper conduct of the arbitrators, as well in the appel-
late as in the inferior Courts. Wright v. Bolton Sc Stracena: 548
2. When an order is made, for the reference of a cause to arbitration, and a
trial is afterwards had before a jury, without setting aside such order, it
will be considered to have been waived. Seartmns, et al. v. White,. . .657
ASSUMPSIT, ACTION OF.
1. Proof of a contract, by which the plaintiff was to erect a dwelling-^iouse,
&c., on lands of tlie defendant's intestate, and occupy the same free of
charge, during pleasure, or remove from it, the defeTidant's intestate to
pay for the carpenter's work and materials furnished by the plaintiff, upon
his removal, will warrant a recovery on the common counts, although the
promise and liability is therein stated as arising in the life-time of the in-
testate. Jones V. Jones 262
2. The plaintiff sold to the defendant a ftiare, which the latter vr^s to pay for
by the labor of his two sons, for four months, at sixteen dollars per month;
agreeing that if one of the boys, (whose health was delicate,) lost any time
by sickness, it should be made uj). Thereupon the.boys entered the plan-
tiff's service, and six or' seven days afterwards, the healthiest of the two
was slightly sick at night, and the next morning he directed- them to go
home — saying they need not return at the price above mentioned, but one
might return and work eight months — neither of them ever labored again
for the plaintiff; nor did he require them to do so: /feW, that the defend-
ant was not in default, and that the plaintiff could not recover the price of
** the mare in an action of assumpsit. — DuckwoHh v. Johnson 309
3. A recovery may be had upon tlie common counts, for an instalment due
upon a call of an incorporated company. Gayle v. Cakawha and Marion
Rail Road Comparly.*: . s",?. . » 587
4. B having executed severar deeds 43f trust to H, to indemnify S, and otli-
'*• ers, his sureties in certain bonds for the prosecution of writs of error, af-
terwards it was agreed between S, B, H, and another of the sureties, tliat
B should give to H the control of his growing crop of cotton, to be shipped
to Mobile, sold, and the proceeds applied according to the trust expressed
in the deed. The cotton, amounting to fifty-one bales, was accordingly
markeiiVith Jlie initials of H's name, by B and one of his sureties, and
shipped by tliem to Messrs. D, S & Co. who received and sold the
same, and held the proceeds, amounting to about $1,900. To reimburse
S $1,030, which the property sold under the deeds of trust failed to pay, H
^ . drew on Messrs. D, S & Co. in favor of S, for the proceeds of the fifty-one
INDEX. ^ m%
ASSUMPSIT, ACTION OF— coNTiwria*. ? ;*-'•" ••; *
bales, which in the bill it wasrecitedhe had shipped them as trustee, &o.;
on this draft the drawees offered to pay about $500 — insisting upon the
right to retain the residue of the inoney in their hands for the payment of de-
■ a «ands, which they had against B. -S refused to jeceive the $500, caused
■•rtheVill to be protested, and gave notice to H. Messrs. D, S & Co. were
». subsequently ^arnisheed by a creditor, who recovered a judgment against
I >.4hem for tlie .$50(i, II was advised of tlie pendency of the garnishment,
v-'J^ut did not inform the garnishees of his claim to tlie money, except as above
t^if^'eta.bedi Held, that thetprdof of the Toregoing- facts did not show the loan,
. v-ftdvance, or payment of money by S foril ; nor do they show that the latter
had received money for the use of the former, or that he was indebted to
him upon an account stated ; that the fair inference is, that II drew upon
D,S &. Co. rnprely to carry out the agreement between B and his sureties,
•^ ijmd the fiict of drawing .didnot impose upon him the legal 4uty of coercing
"'/payment of the drawees : Further, the facts above stated do not show that
B gave to H the control of his cotton crop — that H shipped it, or that D,
S & Co. were instructed to place the proceeds to his credit. Smith v. Hous^
ton. ...:..•.. . . ....'. .....* 736
5. Although the amount in controversy is less than fifiy dollars, and the suit
. . was commenced before ajustice of tlie. peace, yet the plaintiff who sues for
^ the use of anotlier, cannot recover for work and labor done for the benefi-
*.,>-cial plaintiff, unless he stood in such a relation tliat the right to cornpensa-
it. tion inured to him. Mooney, use, ^c. v. Ivey. ........." .810
■%■" See Executors and Administrators, 4.
See Execution, Wuitof, 5.
AUTACHMENT,. . ,
1. One Avho, as administrator, improperly sues but an attachment, is liable to
■.;fespond in damages personally. He cannot, by his tortious conduct, sub»-
ject the estate he represents, to an action for damages. Gilmer v. fVieri
: ."^ .72
2. The refusal to quash an attachment, is a matter "which gannot be re-ex-
amined on error. Masserj v. Walker 167
3. An ancillary attachment may be sued out, although the party has been
previously arrested on bail process issued in the same cause. lb 167
4. An allegation in an affidavit, made to obtain an attachment, that the per-
• son against whom the process is sought, " is a non-re!?ident," is sufficient-
ly certain. Graham v. Jtuff. ". .17%
5. Where an attachment is issued by ajustice in one county, returnable to a
Court in another county, the objection may be taken on error, altliough il
.» .was not made in the Court below, if it has not been waived, by appearing
^jHi'd pleading ta the rnerits. Brooks Sf Lucas n Godrvin. . . . . . .".296
964 ** INDEX.
ATTACHMENT— coNTiNCEB.. .. '^ • "
6. The levy of an ancillary attachment upon land, operates a lien, and when
a judgment is rendered in favor of the plaintiff, the creditor's right to have
it sold to satisfy his judgment, will override and defeat all intermediate
conveyances made by the defendant. Randolph v. CarUon 606
7. In debt upon an attachment bond, the declaration sliould show that tlie
attachment was wrongfully or vexatiously sued out, and that thereby tlie
obligee has sustained damages. Flanagan v. Gilchrist .620
8. When a claun is interposed to property levied on by attachment, the
claim suit is wholly independent of the attachment suit, at least so long
as it is pending. If the claim s»it is determined against the claunant, the
proper judgment is a condemnation of the prsperty, viz : tlrnt it is subject
to the levy of the attachment, and may be sold to satisfy the judgment in the
attachment suit, if one then exists, or is afterwards obtained. No execu-
tion can issue upon this judgment, except for the costs of the claim suit.
Seamans, et al. v. ffhite ' 656
9. The assessment by the jury in the claim suit, of the value of the property
levied on, is mere surplusage, and does not vitiate. Ih .656
10. Where a judgment is obtained in a suit commenced by attachment, the
• plaintiff may, at his election, take out a venditioni exponas for the sale of
-^ the property attached, or he may.sue out an ordinary ^.ya. In the latter
case it would be proper for the clerk to endorse on the writ a description of
the property attached, and of the persons by whom it was replevied, that
the sheriff might demand the property seizfed by the attachment, and if not
delivered, return the bond forfeited. If the property attached is not deli-*
vered, or is insufficient to satisfy the judgment, it would be the duty of the
sheriff to levy on other property. Garey v. Hines * 837
11. The discharge by the holder of a note, of slaves of the maker sufficient to
pay the debt, seized under an attachment at his suit, does not operate in law
.' or in equity to relieve the indorser. GaUer v. Viman, etal 903
See Execution, 1.
ATTORNEY AT LAW.
1. An application to an attorney at law, by a colored person, to draw a peti-
tion to the Legislature for his freedom, is not a privileged communication
between attorney and client. Quere, if the disclosure had been of the
.Jitds upon which he rested his claim to freedom. The State v. Marshall, a
slave .' 302
2. An attorney at law cannot, in virtue of his'retention (by a release, or the
deposit of money which will operate as a release, if at all,) remit a liabili-
ty which his client may enforce, for the purpose of removing the interest
• of a witness, so as to make him competent to testify. Bali v. The Bank
V-.ofthe State of Alahanva.* i . »^v. .1. »Vi*Vi, i .->•. 590
AV
ATTORNEYS AT LAW— continued.
3. It is not competent for the makers of promissory notes that have been re-
ceived of the payees by attorneys at law, in payment of demands in their
• liands for collection, to object that the latter transcended their authority,,
where their clients have approved the transaction. Pond, d al. v. Lock- .
wood, et al 609
'See Judgment and Decree, 4.
» See Notice, 6.
BAIL.
1. To authorize a ca. sa. to be issued, the affidavit which the act of 1839 re- ■
quires to be made, must be made, although the defendant was held to bail
'.previous to the passage of that act. Q'Bri.en and Devine, ex'rs v. Levns.
■' 606
2. If no such affidavit is made, the bail may take advantage of it by plea to
■ the sdre facias, to subject them t^ the payment of the judgment. Ih. . .666
BAILMENT.
1. When a hired slave has left tlie service of the pei-son to whom it is hired,
^ and has gone to the house of the one hiring it, a second demand is unne- •
• cessary, when one is made, and the person hiring consents to take the
slave, if returned the next day, Wier t. Buford. 134
BANK.
Ji A notice for judgment, by. motion, made by one assuming to be President
"i 'dTthe Bank, is sufficient, whether he be President of the Bank, dejure, or
• aiot, if the act is adopted by his successor, who is legally President of tlie
■'■■ Bank. Blackman v. Branch Bank at Mobile 103 ■
SK The President of a banking corporation, the charter of which does not
confer the power, either expressly or incidentally, is not authorized, with-
out the permission of the directors, to whom are intrusted the management ■*
. of the concerns of the institviion, tO stay the collection of an execution
- -.against the estate of one of its debtors ; and if a sherifTomits to levy an ex-
• ecution, in consequence of such an order from the President, it will liot
: become dormant, so as to lose its lien. Spyher v. Spence 333
4. The remark of the President of an incorporated Bank, to a Master in Chan-
cery, who informed him that tlie sale of certain property in which the cor-
poration was interested, had been postponed, that he had acted properly,
amounts to nothing more than the approbation of what the master had
done ; but it cannot be inferred tliat he was informed when the property
^ would be again offered ; that he regarded tlie Master's communication as a
' notice, or approved a subsequent sale; even conceding tliatthe President,
BANK— CONTINUED. - jfllniMf^'
in virtue of liis general powers, was autliorized to act in the premises. —
The BranchofihcBitnkofUic Slate of Mahvmm at Mobile v. lhirit,etal. 870
See Evidence, 1 1, 12.
BANKRUPT.
1. By the thii'd section of the bankrupt act of 1841, not only the property in
possession, but actions pending, and mere rights of action', of every one
who is regularly declared a bankrupt, vest eo instanti, in the assignee ap-«
pointed for that purpose. Butler and Wife v. The Merchanfs Insurane^
Compqny (f the City of Mobile. 146
2. Where the husband conveys, by way of release, to the wife, for her sole use
and benefit, all the right, title and interest he had acquired, by virtue of
their marriage, to certain stock in an incorporated company, as also the
right to sue the company for permitting tJie unlawful transfer tliereef, such
;,a conveyance will be inoperative at law; and the rights of the husband a^^^
tempted to be released, will, upon his .being declared to be a bankrupt,"
vest in the assignee in bankruptcy, lb 14(5
3. The possession of property by a bankrupt, at the time of his discharge, or
immediately after, which by industiy he might reasonably have acquired,
• -does not warrant the jwesuniption that he did not make a full surrender of
• <-.his estate ; but if the value of the property is so great as to make it impro-
;;,.bable that it was earned since the filing of the petition in bankruptcy, it
devolves upon tlie bankrupt to show how he became the proprietor of such
■ property, when his discharge is impugned for fraudulent or wilful conceal-
ment. Hargroves v. Cloud. 173
4. The plaintiflT recovered a judgment against the defendant, on which a
fieri facias was issued, and levied on personal property, to wliicJi a third
• ' person interposed a claim, and executed a bond with security to try the right
•» as provided by statute ; afterwards the defendant filed his petition in bank-
• Tuptcy, and in the regidar course of proceeding was declared a bankrupt
- V and discharged, pursuant to the act of Congress of 1841, on motion of
■ the defendant tlie levy of the fi. fa. 'w&s discharged and set aside: Held,
that the proceeding to try the right of property did not destroy tlie lien of
the_^.y«; at most, it was only in abeyance during their pendency, would be
' revived and might be coerced as soon as the claim was determined to be
indefensible : Further, that the lien of a judgment or f. fa. is preserved ac-
cording to theright of the creditor at the time the bankruptcy is establish-
ed ; if the lien is then absolute, it completely overrides the decree, and
i the creditor will be let into the enjoyment of its fruits. Dercmus, Suydam
. yifCo. V. Walker 194
ii. When a bankrupt, previously to iiis bankruptcy, transferred a due bill for . .
- a valid consideration, his indorsement made after liis bankruDtcy, wilija--
INDEX.
BANKRUPT— CONTINUED. - >*i *■*»*/. «t*^jt tmm :*|f '4iM# ■•
vest the indorsee with a legal right of action. Smbot ^' E(Jston v. More-
house : 370
H. The preference given by a bankrupt, by payment or assignment of effects
*Ho a creditor, to be void under the bankrupt act, must be a voluntary per-
•i^rmance, not induced by an agreement between the parties, for tlie cre-
"i^fi^tor's security, lb 370 '
8^ There is no inhibition in the bankrupt act of 1841, or in the relation which
"Vtiie State and Federal Governments bear to each other, or in the grants or
■^li^straints of power conferred upon them respectively, which deny to the
State Courts the right to entertain an inquiry into the validity of u dis-
* cliarge and certificate upon an allegation duly interposed, that the bankr
pipt did not render-a full and complete inventory of his " property, rights
y of property, and rights and credits," but fraudulently cdacealed the same.
'Mabry, Gdler Sf Walker v. Herndon , 848
.8. Quere!? May not the discharge and certificateof a bankrupt be impeached
^for fraud by one not a party to the proceedings in bankruptcy, - according
.-to the principles of the common law, ivithout reference to the provisions of
; the act, and in such case is it not sufficient for the pleadings to state in
what tlie fraud consists, without giving the fomial notice which tlie act
seems to contemplate, lb 849
Skif^,Semhle; A plea which merely alledges that the debt sought to be recovered
is of a fdiiciary character, is bad; because it states a legal conclusion, in-
stead of disclosing the facts, that tlie Court may determine whether the
» debt is founded upon a trust, such as is excepted from tlie operation of the
.-..bankrupt act. lb. . i 849
10. It is not an available objection on error, that notice of an intention to im-
peach a bankrupt's discharge and certificate, was not given until afler the
commencement of tlie term of the Court when the cause was triable ; the
,• act of Congress does not prescribe tlie time when the notice must be given,
. and if too short to allow the necessary preparation to be made for trial, ti,
', continuance should be asked, lb.. .849
•11. Where a defendant in execution sets up his discharge and certificate as a
<' bankrupt, by a petition, upon which ^.supersedeas is awarded, it is competent
*»'for the plaintiff to impeach tlie same for any of^ie causes provided by the
"•act of Congress of 1841, and make up an issue to try the facts. lb. -§49
BJLLS OF EXCHANGE AND PROMISSORY NOTES. "'*
IL.Tlie act of 1828, places promissory notes in respect to the remedy, onithe
same footing with bills of exchange, and declares tliat th^sy shall all be go-
, verned by the rules of the law merchant, &c.; consequently, where such
lif^ note is indorsed before its maiwritij in payment of o pre-existirig debt, its
S collection may be enforced by the indorsee against the maker, thoughvthe
J^^
INDEX.
BILLS OP EXCHANGE AND PROMISSORY NOTES— continued.
• latter may have a defence which implicates its validity, as between him-
' . self and the payee. Pond, et al. v. LocJavood, etcd 669
2. Commercial paper, received as an indemnity for existing liabilities, is not
transferred in the usual course of trade between merchants, so as to ex-
• empt it from a latent equity existing between the original parties. An-
• ' ^. drews ^ Bros. v. McCoy, 920
S. To enable tlie holder to rely on the rules of the law merchant, as to the
transfer of negotiable securities, the legal title to the paper must be vest-
'- ed in him by an indorsement. lb 920
:-■ See Assumpsit, 4.
See Attorneys at Law, 3.
See Chancery, 3, 5, 28. ... -.'
■ See SetOir, L '
BOUNDARY. •
See Evidence, 28, 29.
CARRIERS. ' '"
i. Gr. wad the owner of a ferry over the Coosa river, which was managed by
'' E. for a share of the profits. During high water, when the ferry was im-
.' passable, E. was in the habit of taking tlie boat, and the hand who assisted
' • * him at the ferry, and conveying passengers over a creek, which emptied
• ■ ' into the river abovethe ferry, to enable them to cross the river at another
'• point. Upon one of these occasions, a wagon with its lading was lost, by
' ■ the negligence of tlie ferryman. Held, that to show that tlie ferry over tlie
creek was an appendage of tlie feny over the river, it was admissible to
■ prove tlie transportation of travellers, by E. across tlie creek, as well after
•'. as before, tlie act which occasioned the loss. Garner v. Green Sf El-
" 4' lioU 96
CHANCERY.
1. The powers of a Court of Equity are sufficient to prevent injury to the
mortgage creditor, as well as injustice to the one who has no security.
Graham v. Lockhart 9
2. Assuming that a deed of trust conveying property as a security, for the
benefit of sureties, and reserving the use of perishable effects, which may
be consumed in the use, has been made operative by the assent of the ben-
eficiaries, yet no other creditor is bound by the contract between those par-
, - ties. His right is to have all the debtor's estate reduced, at once, to its mo-
. ■•** ney value, and if the secured creditors choose to become the purchasers,
"' and thus continue their relation with the debtor, a Court of Equity is com-
petent to let them in to the extent of their debts. lb.' 9
CHANCERY— CONTINUED. <j^s*)^;^C-
3. C. borrowed the bills of an unchartered banking company, from oneL. as-
suming to act as its President, and gave his notes for the same amount, paya-
ble at a future day, with M. as his surety. The bills received, were the bills
of the company, and made payable to S. Jones, or bearer, but not assigned.
The note given was payable ninety days after date, to L. or order. After
the note became due, C. procured otherbills of Ihe company, and went to
the place where it transacted business, but found no one there to receive
payment, or give up the note. The company was composed of L. and S.
chiefly, and if of others, they are unknown. L. and S. both absconded from
tlie State soon after, and are entirely insolvent. Afterwards, suit was com-
menced in the name of the administrator of L., for the use of one Miller,
against C and M., who being unable to succeed in making any defence at
law, a judgment was recovered. Afterwards an execution upon it was '
levied on the property of M., in common with other executions, and his pro-
perty sold. A case was made between the several plaintiffs in execution*
and the sheriff selling the property, to determine the priority of the execu-
tions, and such proceedings had, that the administrator of L. recovered a
judgment for the use of Miller, agaiijst the sheriff and his sureties. C. filed
his bill, setting out these facts, insisting that the company was contrived
and set on foot to defraud the public-^that the death of L. was merely sim-
ulated, to enable the other parties to carry their fraudulent plans into effect ;
that the note yet regained the property of the company, and that in equity,
he was entitled to set off the notes held by him, and to enjoin the collec-
tion of the judgment against tlie sheriff, as C. would have to reimburse M.
if that was paid. The defendants demurred to the bill for want of equity,
and this demurrer being overruled, admitted all the facts stated to be true,
if they were well pleaded. Held —
1. That suit being in the name of the administrator of L., the notes held by
C. against the company were not legal off sets, and that on this ground
there was relief in equity.
2. That the circumstance that the notes were held by C. when tlie judgment
was obtained, or suit brought against C. and M. did not take away the equi-
ty, as M. was a surety only. .
3. That C. being entitled to his relief sgainst the parties to the judgment at
law, it extended also to defeat the recovery against the sheriff, as without
this, the relief would be of no avail,
4. If the original transaction between C. and the company was illegal, it does
not defeat C.'s right to set off the other bills afterwards procured by him.
5. [Upon the petition for re-hcanng.] That although C. might have defeated
the suit at law, by pleading that L. was yet alive, or by showing that the
suitwas collusive, and j:hat.the interest intl^e note sj^ed pn);hen bglopged
• •■ 122, " ' •" ■ ' ' •*
970 ' INDEX. ,^ . .
. . -"'■»•
CHANCERY— coNTmuED. , -♦^'^ ^^'»'
to the company, yet his omission to do so, was no bar to relief in equity.
The suit being in the name of the administrator of L., C. is entitled so to
consider it, and it is no answer to the complainants to say, tliat by show-
ing another state of facts he could have had relief at law. Chandler and
Moore v. Lyon, et al 35
. 4. R. being indebted, by an open account, to an incorporated Rail Road
■. - Company, the latter assigned the debt to one S., to whom the Company was
largely indebted, and by whom siiit was brought against R., in the name
of the Compeuiy, and a judgment obtained thereon. Pending the suit
against him, R. paid for the Company a large debt, as its surety, which debt
existed previous to the assignment, by the Company to S. Held, that as
the Company was insolvent, at the time of the assignment to S., of the
* debt of R., the latter could set off in equity, the money he had paid for the
Company, against the judgment obtained by S. Tuscumbia, Courtland
and Decatur R. R, Co. et al. v. Rlmdes 206
5. D. C. & Co, being bound on a certain bill of exchange, for another firm,
obtained from them, as an indemnity, a bill of exchange for $4,000, to be
held as collateral security. The debt, to secure which it was given, was
discharged by the acceptor, by payment, some time in April, 1837 ; not-
withstanding which, D. C. & Co. daused the bill for $4,000 to be protest-
^ ed for non-payment, on the 14th April, 1837. On the 12th May, 1837,
D. C. & Co. made a deed of assignment, of all theif effects, to P., as trus-
tee, for the payment of debts, in which this bill was not included. On the
30th May, 1837, D. C. fraudulently put the bill for $4,000 in suit, against
C. C, who had indorsed it for the accommodation of the drawers, and by
his neglecting to make defence, a judgment was obtained, in the name of
D. C. &• Co. against him, which he ineffectually attempted afterwards to
enjoin in Chancery. Subsequently, B. &. W. creditors of D. C. & Co.,
obtained an assignment of the judgment from D. C. & Co. P., the trustee
exhibited his bill, to get the benefit of the judgment, alledging, that it
passed to him under the assignment. Held, tliat as D. C. & Co. had no
title to the bill, upon which the judgment was founded, at the date of the
deed, none passed to the trustee by the assignment ; and, that he could
not deduce a title under the general clause of the assig'nment, by a fran-
dulent act of the assignor. That although the grantor was estopped from
setting up a title in himself, by alledging his own fraud, yet, tliat a Court
of Chancery would not interfere, and divest the title of another, who did
not deduce his claim through the fraudulent act of the grantor. Casey, et
als. V. Pratt 238
6. Where a written agreement contains more or less than the parties intend-
ed, or is variant from the intent of the parties, by expressing something
INDEX. iPir
CHANCERY— coNTiNUEr>. .. -/C^^^^ju^.' >-l-im^Wtai0k^ ^
substantially different, if the mistake is made out by satisfactory proof,
equity will reform tlie contract, so as to make it confonnable to the intent
of the parties. But such extrinsiQ proof, it seems, is not admissible in the
absence of fraud, or some legitimate predicate oh which to rest its'admis-
sion. O'N'eil, Michaux &f Thomas v. Teague and Teaguc 345
7. Certain slaves were mortgaged by G. to A., by deed dated in February,
1841, to secure two promissory notes, maturing on the 15th August of the
same year; thfise slaves were levied on in.March, 1841, by attachments, at
the suit of P. and others, and a claim interposed pursuant to the statute, by
the mortgagee, to try the right of property ; a trial was accordingly had,
and the slaves adjudged liable to tlie payment of G's debts : afterwards,
the mortgagee filed his bill in Equity, alleging that tlie validity of the mort-
gage was not controverted by the plaintiffs in attachment, but was rejected^
by the Court as evidence, on the trial of the right, at the instance of the
plaintiffs, on the ground merely, that it did not tend to prove the issue on
the part of tlie claimant ; which was, whether G. had such an interest in ^
the slaves as was subject to the attachments. The plaintiffs in the attach-
ments and the mortgagor were made defendants to the bill, which prayed a
foreclosure of the mortgage, and that the judgment upon tlie trial of the
right of property might be injoined, &-c. — Held, that the judgment by
,^hich the slaves were determined to be liable to the attachments, did not»
under the facts alledged, impair the equity of the bill ; and that the bill was
nQt objectionable for multifariousness. Ansley v. Pearson, et al 431
8. When the defendant in a suit at law fails in his defence, because the wit-
ness relied on to make it appear to the jury, fails to remember the circum-
stances which he is called to give in evidence, this affords no ground for
equitable interposition. Drew v. Hayne .438
9. A surety in a claim bond, in which the principal is trustee for a feme co- '
veii, has no equitable right to prevent the feme coveii from removing the
property, covered by the condition of tlie bond, out of the State, previous
to a forfeiture of the condition. Hughes, et al. v. Gatrett, et al 483
10. A Court of Equity has no jurisdiction to injoin a judgment at law, merely
because the process from tJiat Court has not been served on the defendant.
It is necessary further to shoAv, tliat the party, by the irregularity, has
been precluded from urging a valid defence. Secor ifJBrQoks, et al. v. Wood_
ward. . ..,. t^.^% <«-*> • 500
1 1. An allegation that the mortgagor had failed to pay a promissory note,
whereby the legal estate had become absolute, is a sufficient allegation
^>jtbat the debt was not paid, although there were other parties to the note.
Hollinger and Wife a. The Branch Bank of Mobile 605
19. Where a creditor has caused a levy to be made on property, which after
the levy is'clainfied by a third person, and then the same property is again
*422. 4»M^
CHANCERY— cowTiwuEp. . '^-J^Ji^i <
levied on by another creditor, as belonging to the claimant, and after this
the claimant collusively dismisses his claim ; these circumstances will not
invest a court of equity with jurisdiction of a suit by one creditor against
the other, to determine which of their debtors has the right of property.
Qi<€n/ — whether a court of law is not competent to direct an issue in tlie
nature of a claim suit, to detei-mine the question, or to protect its officer by
enlarging tlie time for his return. Heruhidis, et ux v. Chilton, et al 641
13. Wher^ the primmy object of the bill, and that Avhich alone gives juris-
diction to a coiirt of equity, is not made out, the complainant is not enti-
tled to relief upon a ground merely coTwe^ticnita/, And which contemplates a
decree for a demand which may be enforced by action at laAv. Pond, et
. al V. Locktcood, etal .* 669
44. An answer in Chancery, when offered in e^^dence, is regarded as a de-
claration or admission of the party making it, and when the confession of
the respondent would, with respect to otliers, be res infer (dios, it cannot be
received. Jvlian, et al. v. Reynolds, el al 680
1 5. Although administration may be granted in another State upon the estate
of one who there dies intestate, if slaves belonging to the estate are brought
to this State by the administrator, a Court ofQiancery may here entertain
a biU by a distributee to enforce a distribution. 680
*4l6. To a bill for distribution against an administrator, appointed abroad, who
brings a portion of the assets into tliis State, all the distributees should be
made parties ; but a personal respresentative of/i husband of one of the
distributees, who never reduced his wife's share into possession, need not
be joined. lb ; 680
17. A mortgagee, or cestui que trust, nmy ptoceed to foreclose a mortgage, or
deed of trust, in a Court of Equity, -although the deed confers a power of
sale. Marriott ^" Hardesty, et al. v. Givens .-••"! • • • • 694
18. When a creditor procures a levy to be niade upon personal property Con-
veyed by mortgage or deed of trust, previous to the law day of the (deed,
the mortgagee, or cestui que trust, may file a bill to ascertain and separate
his interest and that which remains in tlie debtor, in consequence of the
stipulation that he shall remain in possession until the breach of the condi-
. tion of payment, lb 694
19. When personal property is improperly levied on, the party claiming it
cannot enjoin the creditor from proceeding at law, on the ground that an-
other person has interposed a claim to it by mistake. The true OAvner has
' • an adequate remedy atlaiy, by suit, or by interposing a claun under tlie
statute. lb 1. ./. *r; 4 .694
20. When personal property, conveyed by a trust deed, is levied on by credi-
tors of the grantor, and claimed by the trustee under the statute, his ces#i«
* ^illJilMiSi. • - 973
CHANCERY— CONTINUED. , -^^|H!i«?t*rrf^»t^«^aipjSMft»»^^'
que tmst is not entitled in equity to restrain the creditors from proceeding--
in the claim suits, upon tlie ground that he desires a foreclosure. lb. . .694
21.. When real estate is. conveyed by a trust deed, to secure the cestui que
Irvst, he may proceed in equity to foreclose the trust, and other creditors
who have levied their executions on the trust estate, are entitled to redeem
and therefore are proper parties, defendants to tlie bill of foreclosure. —
Query, as to the proper course if they contest the validity of the deed as
fraudulent, and assert the right to determine this question in a Court .of
Law. lb .695
• ' 22. It is not sufficient to give a Court of Chancery jurisdiction, that an account
exists between tlie parties, or that a fraud has been practised. There
must be a discovery wanted to disclose the fraud, or in aid of tlie account,
or the accounts must be so complicated, as to require the aid of a Court of
Chancery to adjust them. Knotts v. Tarver 743
,_^ 23. A party bearing the same name with one of several defendants in a judg-
ment may resist the levy on, and sale of his property under & fieri faciashy
suit in equity, upon the allegation that he is not a party tothe note on
■ which the action was founded, and that he was not served with' process.
Givens, et al. v. Tidrtwre , 745
24. An answer which negatives a positive allegation, by way of opinion and
belief may be overbalanced by proof less stringent and conclusive, than if
the defendant's denial had been made upon his own knowledge. lb. 746
25. Where, by a bill to enjoin a judgment recovered on a promissory note
the record of the proceedings at law, and the note, are all made evidence,
■ proof in respect to the non-executioppf JJie note should not be excluded
because the note is not proiikiced. ■ 'Bk JA'. «.<i> /ri^.-vi.'; r-w, ,-. .i*v,^'74G
26. A defendant against whom a judgment has 1Jeenifen"dered, may haVerdiet
in chancery, upon the allegation that the writ, though returned executed-,
by the shefiff, had never been served upon him. Crafts v. Dexter. . . .767
27. It is not sufficient to alledge that he had no notice of the suit ; he must
also show that the judgment is unjust, and that he had a defence to the ac-
tion, lb , 767
28. Where an endorser of a bill of exchange seaks to enjoin a judgment, on
tlie ground that he had not been served with process, it is not a sufficient
allegation, that he had never received notice of the dishonor of the bill, he
must alledge that notice was not given. This averment must be made,
though the burden of proof would lay on the other side. lb 767
29. The failure of the defendant to answer an allegation, not charged -to be
within his knowledge, and which cannot be so intended, will not be con-
strued into an admission of its truth ; if, in such case, tlie answer is defec-
tive, the complainant should except, and pray the Court to require one more
complete. The. Bank of Mobile v. The P. «,• M. Bank of Mobile 772
«•»»
CHANCER Y—c ONTiNUKD.
30. Where the payee of a note deposits it in the hands of an agent to be col-
lected, who causes a suit to be instituted thereon in tlie payee's name, for
his own use, and upon a judgment being obtained, refuses to yield the con-
trol thereof, but insists upon collecting and appropriating the proceeds to
himself, a Court of Equity may enjoin the agent from all further interfer-
ence, and the defendants in the judgment from paying the same, until tlie
matters shall be there heard and adjudicated. Dunn v. Dunn 784
31i The complainant alledges that he placed a note in tlie hands of the de-
fendant to collect, on which the latter recovered a judgment for his own
use, and insisted on appropriating the proceeds ; the defendant, in his an-
ser, insisted that the note was placed in his hands to collect, and pay him
self what the complainant then owed him, and fof subsequent advances •
Held, that so far as the answer seeks to charge the complainant, it is ir-
responsive to the bill, and the onus of sustaining it rests upon the defend-
ant lb 784
33. The assignment of an account by the party to whom it purports to be due,
and testimony that he (having since died) kept correct accounts, does not suf-
ficiently establish its justness to authorize the assignee to set it off to a suit
in equity against him, brought by the person charged witli it. lb 784
-33. Where a bill is for discovery and relief, if the answer, instead of furnish-
ing a discovery, is a denial of tlie matter alledged, it is competent for the
complainant to make out his case by proofs lb 784
34. Where land is sold by order of tlie Orphans' Court, to ipake more equal
distribution among the heirs, and security is not required to be taken for
the purchase money, the heirs have an equitable lien upon the land for the
purchase money, which may be enforced either against the original pur-
chaser, or against a purchaser from him, with notice of the facts. Strange
etal.v. Keenan 816
35. When it appears by the allegations of the bill, that tlie complainant is
seeking relief against the defendant, in anotlier bill, for the same cause of
action, the bill will be dismissed, whether such previous suit is, or is not
then pending. Turnipseed v. Crook, Mni'r, d al 897
36. Where the holder of a note agrees to transfer a judgment obtained by
him against the maker, if tlie indorser will confess a judgment for tlie sum
' for which he was liable, his subsequent refusal to transfer, is no ground to
file a bill to compel him to do so, in the absence of the allegation by the
indorser, that he has paid the judgment so confessed ; as the payment of tlie
money, and not the form of confession, is the essence of the contract. Cal-
ler V. Vivian 903
37. A bill which states the cause of action in the alternative, is insufficient, if
one of the alternatives shows that he has no right to a recovery, as the bill
• ,1^^ — : . ___ •- — —, .=— - — ~ -^ —
CHANCERY— coirt-iNUED. . : '><«*i«%rM^.*M«^t'^K*T^ -^
*■ ' must be construed most strongly agafnsf tlie pleader; but if the Objection
' • is not taken in the Court below, it cannot be raised for the first time in this
-. *^C6art. Andrews Sf BrotJiers v. McCoy 920
38. The equity which attaches upon the assignment of a chose in action, is one
which inlicrfts in, or groAvs out of tlie subject matter'of the contract. Aa
' ,'- when there was a warranty against incumbrances, upon a sale of land, an
^* inchoate, or latent equity, would attach to the notes executed for the pUr-
■. ** chase money, and would be enforced against an assignee of the vendor,
■'"^ when the equity became perfect, by a breach of the warranty, and the in-
' solvency of the vendor, lb. 920
39. A vendor of land, took severia,! negotiable notes for the payment of the pur-
chase money, one of which was negotiated in the usual course of trade,
• " the others were not. Held, that although tlie holder of the note so nego-
;' tiated, was not subject to an equity existing against the vendor, such equi-
,' ty could be enforced against the holders of the other notes, and that the
' vendor could not be required to apportion tlie loss. lb 921
-*' Sec Contribution, 1, 2.
. ; Sec Deeds of Trust, 9.
See Guardian and Ward, 8.
". See Intendments and Legal P., 8,
- See Mortgagor and Mortgagee, 1, 3.
See Practice in Chancery, 1, 12.
See Warranty, 1. '•-;..
CLERK AND REGISTER OF COURT. "
1. The clerk of a Court is not authorized, without the consent of the plaintiff^
to receive before judgment, the amoiHit for which the sureties of the defend-
ant are liable, and thus discharge them. Windham, et cd v. Coats, use, fyc.
285
2. Where a party offers a witness who will be liable over, if he is unsuccess-
ful, he cannot divest the witnesses interest, and make him competent, by
depositing with the clerk a sum of money equal to what Avould be tlie
amount of the recovery against him. The common law or statute, neither
confer upon the clerk of a Court, virtvie officii, the authority to receive mo-
ney which may be recovered upon a suit afterwards to be brought ; and
such payment cannot be pleaded in bar of an action. Ball v. The Bank of
the Staie of JEdbama 590
CONFLICT OF LAWS. '-'• •
• 1. The laws and customs of the Choctaws were not abrogated, so far as mem-
. bers.of the- tribe were affected, by the extension of the jurisdiction of the
... .^ . . . '
CONFLICT OF LAWS— continued. . - . -:;
State over tlie country occupied by them. It is only by positive enact-
^ ments, even in the case of conquered or subdued nations, that tlieir laws
i^.4re changed by the conqueror, but there is no merger, until one tribe or
nation is swallowed up, or lost in another, by the efflux of time. Wall »,
Williamson » 48
2. When, by the laws of an Indian tribe, the husband takes no "part of his
. wife's property, it is a necessary consequence, that the wife retains theca-
^,pacity to contract, and it is likely, means were provided by their laws fc«*
the enforcement. But if such was tlie cass, it is not perceived how the
wife could, in our Courts of law, be sued alone, so long as the marriage
j^ontinued, as the case presented would be that of a wife with a separate
' estate. Ih 48
3. An intention to change tlie domicil, witliout an actual removal, with the
intention of remaining, does not cause a loss of the domicil. The. State v.
HaUeit 159
4. Where one, resident in Georgia, came to this State, for the purpose of
settling here, and leased land and purchased materials for the erection of
. a foundry, and returned to Georgia for his family, and after some detention
returned with his family, and has ever since resided in this State — Held^
that he did not lose his domicil in Georgia, or acquire one in this State,
• i' Hntil his actual removal to this State, with the intention of remaining. Tb.
'• 159
CONSIDERATION.
1. Inadequacy of price, upon the saleof property, is a badge. of fraud, where
the vendor was greatly indebted ; though in itself it may not be sufficient
to avoid the sale, unless the disparity between the true value and thepriee
paid, or agreed to be paid, was so great as to strike the understanding
with the conviction that the transaction was not bona fide. Borland v.
^ayo 106
2. Where the defendants remitted a bill, indorsed by them, to a correspon-
dent house, to whom they were then indebted, with instructions to credit
them in account, and that house procured tlie bill to be discounted, and
^credited the remitters with the proceeds, and advised them of the facts;
- v-<these* circumstances constitute a sufficient consideration for the indorse-
.^eiaent, to enable the correspondent house to maintain an action on the bill,'
i^«vhen subsequently paid by them as indorsers, against the remitters. —
■ n^heffield ^" Co. v. Partnelee 889
CONSTABLE AND SURETY.
l.^An acti(4n may be maintained upon the official bond of a constable against
;i^e principal, aiid. his ^SCTetieSj-with^ the default and
INDEX. '^
CONSTABLE AND SURETY— continued.
,- liability of the former, JL a separate suit Bagby, Governor, ^c. v. CJutn* /
. dler and Chandler 230 ,
2. The bond of a constable, tliough payable to the Governor co nomine and
; his successors in office, is, in legal effect, an obligation to the Governor, as
^ ',the chief executive officer ; and may be sued and declared on, without no-
■ ,_,ticing tlae obligee's name. Or, if the suit be brought in the name of the
^Miominal obligee, (describing him officially,) who was superseded in office
. ^,. before its commencement, it will be regarded as an action by the Governor,,
. and the name of the individual will be treated as surplusage. Ih 230^
CONSTITUTIONAL LAW.
IvTKei'e is no inhibition in the bankrupt act of 1841, ox. in the relation which *
^the S|;ate and Federal Governments bear to each other, or in the grants ot,
/"■•restraints of power conferred upon them respectively, which deny to th^-
'"^State Courts the right to entert?iin an inquiry into the validity of a dis-
• charge and certificate upon an all'egation duly interposed, that the bank-
■^-upt did not render a full and complete inventory of his " property, rights ■
.Tbf property, and rights and credits," but fraudulfently conpealed the same.
' ' .'Mabry, GiUer 8,- JValJcerv. Herndon .848
% The 11th section of the^8th chapter of the Penal Code which authorizes a-
'iJfwlle prosequi to be entered and another indictment to be preferred,
".• * vhere, in the progress of a criminal trial, there shall appear such a vari- •
•^^ance between the proof adduced and the indictment, as will require the
.■* acquittal of tlie accused, unless he will assent to an amendment, is not un-
constitutional. The State v. JQ-eps 951
CONSTRUCTION.
1. The receipt being signed by a firm, and the question being, whether all
.. the members were bound, or only the one signing it, in the absence of alT
' • • explanatory evidence, the Court should give it the construction which will
, , operate most strongly against those purporting, to be bound by it. Hogan
. 'if Co. V. Reynolds 60
2. Where the words of a bond were not sufficiently explicit, or if literally
construed, their meaning would be nonsense, it must be construed in refer
'■ - ejice to the intention of the parties. In doiijg this, it is allowable to depart
from tlie letter of the condition, to reject insensible words and to supply
s obvious omissions. Whitsettv. tfomack, use, ifc 467
See Contract, 1. ,
Sec Evidence, 46.
See Vendor and Vendee, 10, ,
.123' ^'''■^■'■' ' '. ^ ^- . • • 7:: ^'^'■■- ' ■■
978 INDEX.
CONTRACT. -fi»K^T~ ^
1. Semble; where different instruments in writing are made at the same time
between the same parties, and relating to the same subject matter, they
constitute but one agreement, and the Court will presume such priority in
their execution, as will best effect the intent of the parties. Whitehurst,
use, %'c. V. Boyd. 375
2. It being proved that the note was given for a cotton gin, which the defend-
ant had the privilege of trying and returning if it was not good — held, that
this was a condition for the benefit of the defendant, which he must take
advantage of by plea, and that the note might be declared on, as an abso-
lute promise to pay on the 1st January, 1842, without noticing the condi-
» tion. Lockhard v. Avery ^ Speed, vse, Sfc .* 502
3. If a Bank, which is advancing upon cotton, to be shipped through its agents
to distant points, in order to place itself in funds there, stipulates witli a
shipper to pay him two per cent for exchange upon the nett proceeds of sales
at a designated place, the fluctuation in the price of exchange between
the time when the contract was entered into and the cotton sold, can have
no effect upon the rights and liability of either party. Ball v. The Bank
of the State of Alabama .590
4. The defendant, by promise in writing, undertook to pay the plaintiff a de-
finite sum of money on a certain day in shucks; shortly after the maturity
— of the note, the plaintiff demanded the shucks at the defendant's residence,
the latter had about one load ready, which he offered to deliver, remarking
to the plaintiff that he might haul them oft^ and the residue should be strip-
ped from the corn as fast as he could take them away ; it was shown that
the defendant had more shucks on his corn than were sufficient to pay the
note, and that the plaintiff insisted on having all delivered at one time, at
a point designated by him, within a few few feet pf the defendant's corn
cribs, and within forty or fitly yards of houses containing a lai-ge quantity of
cotton seed and fodder ; upon being asked by the defendant why he wished
the shucks delivered at that place, the plaintiff remarked, to burn, sell, or
do whatever he thought proper with them: fleZrf,that the readiness of the
defendant to perform his contract, and the offer to deliver the shucks when-
ever tlie plaintiff would remove them, Avas a good defence to an action
brought for a breach of the undertaking contained in the writing. Arm-
strong V. Tait .635
5. T. undertook to proceed to Washington City, " and to do all in his
power to prevent the confirmation of Eslava's claim, or to obtain the
passage of some act, or else have it inserted in the confirmation of Eslava,
in such manner that the land office department may issue patents to said
■ G. & H^ for the land embraced witliiji said claim, and for which they have
'^the government title" — Held, that it was not unlawful to solicit Congress
INDEX. 91%
CONTRACT— CONTINUED. v -
in behalf of private land claimants, as the acts of Congress on this subject,
though laws in form, were in effect judicial decisions — That the under-
taking " to do all in his power," did not on its face import the use of un-
lawful, or improper means," and that the contract was not void as being
'^^^jiigainst public policy — Whether such a contract, to solicit the passage of
. a.^public law, would be valid, Qitere. Hunt v. Test. , . .' 713
6. T. agreed with H. for . a reward, dependent upon his success, to attend
. ^t Washington city, and do certain things, in reference to a controversy
about a private land claim depending before Congress, between H. &. E.,
T. attended two sessions of Congress, when the matter was compromised
-between E. & H. — Held, that if T. was not privy to the compromise, he
could not be required to prove that he could have performed his undertak-
• ing, as that had been rendered impossible, by the act of H. If T. assent-
. 'ed to the compromise, and did not abandon his claim for services render-
■ •■ed,the law would imply a promise from H., to pay the value of the servi-
3**ces, to be admeasured by the contract, but could not exceed the amount he
had stipulated for. lb. t 713
7. An agreement to receive the services of a negro, for the board of an indi-
vidual, is not cancelled by the slave becoming sick before the time ex-
■.. pires. Alexander V. Alexander 796
8. Although the issuance of bills of a less denomination tlian three dollars
was prohibited, at the time when a contract for the loan of the bills of an
unchartered association was made, yet the mere fact that bills for less
than three dollars were received, does not avoid the contract. McGeJiee
■v. Powell 828
•- See Assumpsit, 2, 4.
• ,See Chancery, 30.^
See Damages, 2.
See Vendor and Vendee, 9.
CONTRIBUTION.
1. D. sold sundry tracts of land to L. on a credit; L. sold one of them to B.,
and another to M: D. agreed with B. to release the tract purchased by him
upon the payment of a certain sum of money; but at the time of this agree-
ment D. was not informed that M. was a sub-purchaser of L ; D. obtained
a decree for the sale of the lands, to satisfy his equitable lien, and assign-
ed the decree to K : Held, that the land claimed by M. was not exempted
from the operation of the decree by the arrangement which D. made witli
B., nor could it be released by the payment of a sum corresponding with
- what was paid by B., considering the relative value of the two tracts. —
""Kirksey, et al. v. MitcheU. •••..••• • r • -402
980 INDEX.
CONTRIBUTION— co.NTiNtJSD.
2. Neither the purchaser of lands, nor his assignee, can be charged with
rents received upon a bill to enforce the equitable lien of tlie vendor ; and
if the assignee of tlie vendee becomes the assignee of tlie decree recovered
by the vendor, a sub-purchaser of part of the land from the vendee cannot
relieve it from the decree, by compelling the assignee to appropriate the
amount received by him for rfent, to the satisfaction of the decree, _pro
tanto. lb .403
3. The doctrine of contribution does not apply as between accommodation
indorsers ; consequently, in the absence of an express or implied agree-
ment changing the liability of indorsers inter se, they are bound to pay
in the order in which their naines appear on the paper. Spence v. Bar-
day ! 581
CONVERSION.
1. An administrator with an interest may purchase at a sale made of the in-
testate's estate, and if he uses the assets of the estate in making such pur-
chase, the distributees may elect to consider the appropriation a conver-
sion, or may treat the administrator as a trustee ; this being the law, he
cannot make a gift of the property so as to defeat the trust Jvlian, et al. v.
'^Reynolds, dal ' ,680
See Ex<^cutors and Administratoi^, 4.
^ , See Partners and Partnership, 3.
CORPORATIONS.
1. A recoveiy may be had upon the common counts, fo? an instalment due
upon a call of an incorporated company. Gayle v. Cahmvba and Marion
R.R.CO 587
See Bank, 2, 3.
See Criminal Cases, 11.
costs:
,1. When an issue is made up to ascertain the amount each of several distri-'
butees have received from the estate, the costs of tlie proceeding is a joint
charge upon the estate, and carmot be taxed against those who are most
active in making objections. Tkc Distributees ofMitdiell v. Mitchell, ad-
^ ministrator. , 415
* a The statutes of this State authorizing Courts to tax prosecutors with costs
whenever the prosecution is frivolous or malicious, extends only to misde-
meanors, and does not warrant such a taxation in a prosecution for grand
,j, Jarceny. Tiick v. The State. , . .,. .QCA
INDEX. - ffe
COSTS— CONTINUED. ^f^^'^ixptpi>^* ' ' '
3. When costs are directed to be paid out of the estate, if the litigation is
unnecessarily protracted, for the purpose of vexation, the Court will apply
the proper corrective, by taxing the party so acting, with tlie costs. Mtx-
ander v. AlexaTlder. 797
See Garnishment and Garnishee, 5. *
■ See Summary Proceedings, 2.
COURT, CHARGE OF.
] . Whether the admission o? facts, in a written proposition to compromise, be
admissible evidence, or not, it is not en"or to charge the jury, that if the
-paper was writteij with .the view to a cornpromise, and the promises con-
tained in it were made for that purpose, the defendant was not bound by
them. Such a charge doe's not deny effect to theyacfe. Courtlandv, Tad-
ton Sf Bullard. .533 .
% A promise to pay a sum of money in Alabama bank or branch notes, is a
'■ promise to p,ay in notes of the Bank of the State of Alabama or its branch-
es, and it is proper for a Court to charge a jury that such is the proper
construction, without evidence of tlie meaning of the tenijs used. Wilson
tj V. Jones ..'\ .536
3. Semhle: Where an error in a charge to a jnry is such as could not preju- - .
dice the party excepting, it furnishes no cause for the reversal of the judg-
ment. Randolph v. Carlton .607
. A. Where the Court having diiarged the jury, upon the law^as applicable to
the evidence adduced, at the request of the defendant's counsel, and upon
;.^ ,an inquiry by the jury ,^ remarked, that the plaintiff would not lose his right ^\
to recover in anotlier action, though tlieir verdict might be for the defend-
^ ant ; the remark of the Court, whether in conformity to law or not, furnish-
,,[' es no ground for the reversal of the judgment. It could not have misled
• the jury, and they doubtless sought the- information merely to reconcile
,.\ -their consciences to the performance of an imperative legal duty, ^rm-
_ . strong V. Tait ^ 635
5. A charge to the jury must be considered in reference to tlie facts in the
,• cause, and if thus applied it is coiTect, the -judgment will not be reversed,*"
f . though as a universal proposition it may be erroneous. McBride and Wife,
et al. V. Thompson , .650
6. Where, giving fulkcredit to all the plaiiitifl^'s proof, it fails to make out
jg,',-«uch a case as entitles him to recover, a charge to the jury which is raror .
neous, as the assertion of a legal proposition, furnishes no ground for the
reversal of a judgment against him. Smith v. Houston. 737
7. When the defendant borrowed bills from an unchartered association,
TYhjch jie endea-vored^to show originated in a cgnspiracy to pheat. tlie pub-
982 INDEX,
COURT, CHARGE OF— continpeo.
lie by getting its bills in circulation without the means or the intention to
redeem tliem, his request for the Court to instruct the jury, that if he vas a
party to the conspiracy, by engaging to aid in the circulation of die bills,
this would avoid the contract under which the bills were borrowed, will be
considered as merely abstract, and tlierefore pioperly refusedj when there
is no evidence before the jury to connect him witli the conspiracy. Mc-
Gehee v.Powell .', . 828
8. When the charge of tlie Court assumes that the transfer of a note is bona
fide, for a full consideration, and tlie evidence is such as ,to lead to this
conclusion, if believed by- the jury, it is no error. Sheffidd Sf Co. v. Par-
make ...,. . ; ..;..;... .... .889
0. Qiiere? Whether, in a controversy'in respect' to the location and title to
lands, under the instniction of the Court, the jury by their verdict affinned
that tlie premises of which the defendant was in possession, was not em-
br^ed witliin the defendant's lines, the judgment should be reversed,
where tlie Court, upon some other point in respect to the title, may have
charged the jury incorrectly. Doe, ex dem. PoUard''s Iieirs v. Greit. . . .931
COURT, SUPJREME.
i; It is improper to send the original papers to this Court, and if sent, will
■ ' not be looked to, to settle any disputed question. Hobson v.-Kissam Sf
^Co,,Sfc -. .357
^. 'It is competent for this Court, under the constitutional provision, which
gives it "a general superintendance arid control of inferior jurisdictions,"
to award a writ of habeas corpus upon the refusal of a Judge of the Circuit
Court, or Chancellor sitting in vacation, or in term time, and to hear and
' decid e upon the application for the prisoner's release, or adopt such course
'■ 'of proceeding as would niake its control complete. Chaney, ex parte. 424
*i?f.* A cause is hot before the Supreme Court, so as to authorize that Court to
_ "make an order in respect to it, until the tenn when the writ of error is re-
turnable. Renfro, by her next friend, Ex parte 490
4. .The Supreme Court cannot set aside a supersedeas which has been issued
upon the suing out a writ of error and executing a bond, on the ground of
defects in the bond ; in such case the appropriate remedy should be sought
in the primary Court. 'lb. 490
5. After a judgment upon irregular proceedings is reversed, the whole re-
cord may be corrected by the judgment of the apjftUate Court. Sankey's
Ex'rs V. Sank^^s Distributees 602
COURT, CIRCUIT.
•4; The Circuit Court has no original jurisdiction of a summary proceeding,
•* by motion, against a constable for failing to return an execution. The
: ■— : . UJ : ■• •
- m
COURT, CIRCUIT— CONTINUED. ' " '
statute only authorizes the motion to be made before the justice of the
'- peace issuing the execution. Evans, use,&fc. v. Stevens, et al 517
COURT, COUNTY, COMMISSIONERS OF, &c.
1. The Judge of the County Court has no power to adjudicate upon the tax
• list, and ascertain the amount of insolvencies for which the tax collector
' . is entitled to a credit, except at the time provided by law, viz : tlie second
. Monday in September of the current year, or at the succeeding County
Court, if the special Court is not held. Treasurer of Mobile v. Huggins. 440
2. Upon the failure of the County Judge to act, tlie power conferred upon
. the Comptroller to make the allowance, may be exercised by the Commis-
. :sioners' Court, upon the county tax collected during tlie period, when
State taxation was abolished, /b 440
3. The County Court has no jurisdiction of an action of trespass quare clau-
sum /regit. Elliott v. Hall. .508
CRIMINAL CASES AND PROCEEDINGS IN.
1. Wherever a person charged with a criminal oifence, is put upon his trial,
he is, by operation of law committed to the custody of the sheriff, without
either a general or special order for that purpose. Hodges v. The State 55
2. The act of 1812 merely furnishes a remedy, by which a fine alssessed
against a party committed to custody, may be recovered of the sheriff, &c.
or. their sureties in case of escape; but in addition to tliis proceeding, tlie
party guilty of abroach of ofKcixjl duty, might be indicted, if the facts of
thiB case were such as constituted an offence at common law : consequent-
ly, the provisions of the Penal Code, which provide for the punishment of
escapes, are merely substitutes for tlie common law, and do not abrogate
the act of 1812. lb 55
3. Notwithstancing the enumerated causes of challenge in the Penal Cude,
the Court may, in its discretion reject such as are unfit or improper per-
sons, to sit upoii the jury, and may excuse those from serving who, for
. re^ons personal to Ijiemselves, ought to be exempt from serving on the
." '-jury. So, also, the Court may reject any juror vho admits himself open
' to any of the enumerated challenges for ca:use, without putting him upon'
the prisoner. The State v. Marsfudl, a slave 302
4. The owner of a slave is a competent witness for tlie State, upon a trial of
the slave for a capital offence. lb .»...."... 302
5. It is competent to provg, on the trial of a colored pe,rson for a capital of-
fence, charged in the indictment as a slave, that he admitted himself to be
a slave. But where the proof was, that the prisoner had brought to the
witness a bill of sale of himself to one E, transferred to the witness by E,
Which was objected to because tlie bill of sale 'was not produced Hddy
984 INDEX.
_, _« : . % i . . . , . _
CRIMINAL CASES, AND PROCEEDINGS IN— copfTiNUED.
'that although this might be considered as an admission by the prisoner, of
his status, and that it was not therefore necessary to produce the instrument
by which it was evidenced, yet, as the jury may have been misled, and pro-
bably acted on the belief that the bill of sale was proof, that the prisoner
WELs, or had been the slave of E, in favorem vitm, it was proper there should
be a new trial, lb , ^ ; .-. .302
6. When a white person is indicted for an assault, with intent to kill and mur-
^ der, and the jury by their verdict, find him guilty of an " assault loitK intent
to MZ," tlie legal effect of the verdict is, that the party is guilty of an as-
sault, or assault and battery, as tlie case may be. The State v. Burns, 313
7. The words inveigle, entice, steal and carry away, in the Penal Code, (Clay's
, Dig. 419, § 18,) denote offences of precisely the same grade, and may be
included in tlie same count of the indictment; and upon proving eitlier, the
State is entitled to a conviction. Mooney v. The State.. .: 328 -
8. The offence of inveigling, or enticing away a slave, is consummated when
th^ slave, by promises or persuasion, is induced to quit his master's service^;
with the intent to escape from bondage as a slave, whether tlie person so
I operating on the mind and will of the slave, is, or is not present when the
V determination to escape is manifested, by the act of leaving the master's
-service, or wlietlier he is, or is not sufficiently near to aid in the escape, if
■ • , jaecessary. lb ..;... .328 '
%, The 40th section of tlie 8th chapter of the Penal Code, which declares,.
\ .that no person charged with an offence capitally punished, shall, as a mat-
.^^T of right, be admitted to bail when he is not tried at tlie tenn of thd
*!<..Court at which he was first triable, if the failure to try proceeded from the ■
V jjon-attendance of the State's witnesges, "_Ti:liere an affidavit ig made, satis- *
,■- factorily accounting for their absence," does not make it imperative upon
this, or any other Court, to admit tlie accused to bail, because such an af-
• fidavit was not made and acted on by the CourJ in which the indictment is
ypending : but it is competent for tlie Judge or Court which directs tlie pri-
"u^oner to be brought up on habeas corpus, to allow the affidavit to be made.
Chaney, Ex parte .♦ . . • v • • r •• • .424-
10. It is allowable for a Judge of the Circuit Court or Chancellor, in vacation
j^j^p award a writ of habeas corpus, in a capital case, tliough the accused was
by order made in term time, committed to jail. lb 425
11. The corporate authorities of Mobile are invested with power to enact an
ordinance to require the keepers of coffee-houses, taverns, &c. within tlie
^city, where wine, &c., are sold by the retail, to obtain a license from the
t/amayor for that purpose ; and to impose a fine of fifty dollars for retailing,
• without first obtaining such license. It is no defence to a proceeding in-
' 'Jtistitutod for tlie recovery of the fine imposed by the ordinance, thsit the of-
INDEX.
CRIMINAL CASE3, AND PROCEEDINGS IN— continued.
V fender is liable to an indictment at the instance of the State. TAe Mayor..,-
■Sfc. of Mobile v. Rouse, \r. 515
12. The statutes of this State authorizing Courts to tax prosecutors with costs
*,, whenever the prosecution is frivolous or malicious, entends only to misde-
%<*. meanors, and does not warrant such a taxation in a prosecution for grand
larceny. Tuck v. The State .". ^ . .664
l^. Where an indictment charges a larceny of a bank note and other articles,
^fltnd-there is a variance between tlie indictment and tlie proof in respect ta ' .^
i' the bank note only ; the Court cannot, under the 1 1th section of tlie 8th '.
'Chapter of the Penal Code, permit a nolle prosequi to be entered, that an-
.;^«ther indictment may be preferred, because the accused will not consent. '
. »; to an amendment of the indictment so as correctly to describe tlie bank -
-..'«o;te. The State l^. Arep». 95iv^ •
/.rConstitutional Law, 2.
'••See Court Supreme, 2.
DAMAGES.
%r.yA purchaser at sheriff's sale, who refuses to comply witli the conrract of
.-.purchase, is liable to an action by the sheriff, and the right to recover the' •
.full price cannot be controverted, if the sheriff, at the time of the trial, has
. ^4iie ability to deliver the thing purchased, or if that has been placed at tlie "
V. disposal of the purchaser by a tender. The loss actually sustained by the
..' «eller, is, in general, the true measure of damages when the purchaser re-
fuses to go on with the sale. LaviJcin v. Crawford. 153 '
3. When one contracts to perform work for another, at a stipulated price, and
.'A4s prevented by him from entering upon the performance, the measure of
' >:,4a'in3'g6s is tlie difference between the cost of performing the work by th^- -
w^■party agreeing to do it, and tlie price agxeed to be paid for it ; in other words,
■4 the profits the party would have made. George v. Cahawba and Marion
jRail Road Co ' 234
d. In an action against a sheriff for failing to levy an attachment upoij a sufe
■-.iiciency of property to satisfy the judgment rendered thereon, the measure
i of damages is the injury sustained by the sheriff's failure to make the pro-^ ^
:!r.?f»er levy. The value of the property levied on in such case, should be^
-yequal to the amount of the debt sought to be recovered, making a proper
•'ifyi^lowance for depreciation in price, the effect of a forced sale, as also costs.
• iind other incidental charges: and evidence of the sum at which the pro-
perty was sold under the execution, should perhaps be consideued more
; satisfactory as to its value than tlie opinion^- of witnesses. Gn§.n v. Gan-
moay — .., — , , ..... . . .^ , , .625
♦> See Salesi^ 8*' ••/:- •".:.; * ^
■ 124" '" '■ ' .
iM index!
DEBTOR AND CREDITOR. '^^^.
' 1. So tar as the particular creditor is concerned, the debtor, with his assent
may stipulate that the effects conveyed may be continued, in trade or
planting, for a definite or indefinite period, but such a stipulation cannot
.^ prevent any other creditor from his right to sell the resulting trust of the
debtor, in satisfaction of his execution. Graham v. Lockhart 9
2. Quere7 Whetlier a debtor, by the mortgage of his perishable personal es-
tate, for the security of one creditor, can prevent others from reducing tliat
';,* estate to money, and tlms to determine the risk there always is, of its des-
truction or deterioration in value. lb , .9
3. The powers of a Court of Equity are sufficient to prevent injury to the
mortgage creditor, as well as injustice to the one who has no security.
lb 9
4. Assuming that a deed of trust conveying property as a security, for the
benefit of sureties, and reserving the use of perishable effects, which may
be consumed in the use, has been made operative by tlie assent of the ben-
eficiaries, yet no other creditor is bound by the contract between those par-
ties. His right is to have ail the debtor's estate reduced, at once, to its mo-
ney value, and if tlie secured creditors choose to become the purchasers,
and thus continue their relation with the debtor, a Court of Equity is com-
petent to let them in to the extent of their debts. lb 9
5» Where there is a fraudulent sale, the parties may rescind it, and make an-
other contract in good faith, before liens attach upon the property as the
vendor's ; but where a sale is void, ab initio, for fraud inferrable from inad-
.V equacy of consideration, or otlier cause, it cannot acquire validity against
the creditors of the vendor, although the vendee may pay a sum beyond the
amount of the purchase money stipulated. Borland v. Mayo 106
- -6. \i mala fides is not attributable to the vendee, but he has acted with fair-
• ness, his purchase cannot be pronounced void, at the instance of the vendor's
creditors, merely because its tendency was to defeat or delay them. lb. 106
7. B. was indebted to S. (his father-in-law,) or S. was bound to advance mo-
ney for him, B. sold to L. a house and lot, and took his note payaWe to S.
for the purchase money ; B. had been a partner of F. in a mercantile es-
' ," tablishment. Upon the dissolution of their partnership, the firm were in-
debted toB. more than $1,000, which, he was to retain, and appropriate the
residue of the eflfects to the payment of the joint debts ; some of the de-
mands due B. and F. were placed by the former in the hands of S. as a jus-
tice of the peace, to collect, who acknowledged their receipt from, or his
~ accountability to S : Hdd, that the inducement for taking the note and re-
ceipt in S.'s name, was sufficient to free the transaction from the imputa-
tion of fraud ; that a debtor may prefer one creditor to another, and the rela-
V tionship between B. and S, could not prevent the latter from securing him-
DEBTOR AND CREDITOR— CONTINUED. ^
self, fwihei; that by making the note payable to S., L. admitted that he
"was entitled to the mbney, aiid cannot be heard. to alledge the reverse.
JLoioriev. Stewart ~. . ... — ". . . . . . . .'. — .' . .163
8. When a slave is levied on at the suit of three Creditors, and is claimed by
a stranger, who executes a claim bond to the junior execution only, and
'.that creditor alone contests the title with the claimant, and succeeds in
' condemning the slave, the other creditors hayp no right to claim the money
"'which he receives from the claimant, in discharge of the claim bond. Bur-
nett V. Handley 685
9. A creditor who alledges fraud in the conveyance of a debtor, by a mort-
gage or deed of trust, cannot be prevented from trying this question in a
'.'Court of law, before a jury. Marriott Sf Hardesty etal. v. Givens 694
TO. When the claimant asserts an absolute title to slaves levied on as the
property of a debtor, and the proof shows that a portion of these slaves
• were purchased with money or funds of the debtor, and that the bills of sale
• -^were taken in the name of the complainant, the possession remaimngwith
'^'.the debtor, this is evidence of fraud. lb .695
11. The assertion by a cestui que trust agiiinst creditors, that the grantor in
a trust deed is indebted to him in a larger sum than he is enabled to prove,
is evidence of fraud, .upless the suspicion of unfairness is retnoved by evi-
dence. Tb .". 695
12. A creditor is entitled to the benefit of all pledges or securities, given to
' ,or in the hands of a surety of the debtor, for his indemnity, and tliis, whether
''\The surety is damnified or not, as it is a trust created for the better secu-
^'S'ity of the debt, and attaches to it. Ohio Life Ins. Co. v. Ledyard, Sfc. 866
'^ See Deeds and Rea:isti'ation ofl 4;' , , .-
trEEDS AND BONDS. ' '• "
1. The terms " indenture," " covenant," " demise," " and to farm let," though
'^'usually found in deeds, are not technical; The use of these terms, therfe-
' '■''Tore in the declaration, does not necessarily imply that the instrument in
*'**'■ which they are alledged to be was sealed. That is only effected by the
J use of the terms " deed," or " writing obligatory." Magec v. Fisher, ^t
**" oZ 320
2. A statute provided, that where a steamboat, &c. was seized under process
issued upon a proceeding in the nature of a libel in admiralty, that i^
■ "should be lawful for the master, &c. to enter into a stipxilation or bond
""with sufficient sureties to answer all the demands which shall be filed against
'' the boat, and the same shall be released and discharged from such lien
^'Further, the clerk of the Court in which the libel was filed shall take the
■'"^'Stipulation or bond, and it shall not be void for want of form, but shall be
"^proceeded on and recovered according to tlie plain intent and meaning
988 INDEX.
DEEDS AND BONDS-— coN^muBft. " '
thereof: Held, that a bond taken under this statute was neither void or
voidable, because it did not show that the obligors, or some one of them
were claimants of tlie boat, or otherwise interested in the litigation res-
pectmg it ; or because it was made payable to the officer who executed
the order of seizure, instead 6f the libellant ; or because it provided for
the return of the boat to the obligee, instead of stipulating that the claim-
ant should pay the libellants such judgment as should be rendered on the
.'. libel; or because it does not provide, that upon the payment of such de-
cree as may be rendered, the obligors shall be discharged from their obli-
;j gation to return the boat. Such a stipulation, if voluntarily entered into,
- and not extorted colore officii^ may he enforced as a common law bond.
ffhitsett V. ffomack, use, ^x. 466
3. Where a statute req^jres a bond to be execnted in a prescribed form, and
not otherwise, no recovery can be had on a bond professedly taken under
the authority of the act, if it does not conform to it ; but if a statute merely
ji^" prescribes tlie form, without making a prohibition of any other, a bond
• wliich varies from it may be good at common law. So if part of the con-
dition of a bond conform to the statute^ and part does not, a recovery may
be had for the breach of the fojmer', where so much of the condition as is
illegal is not mulum insc. lb :....:...... 466
4. A sheriff who has duly seized goods, under legal process, has a special
property in them^ and should jwovide for their safe keeping. Where a
mode is provided by statute in which this may be done, and the appropri-
. . ate bond is taken, the officer is relieved from the obligation to keep it ; but
■ where tlie statutory bond is not offered, he may provide some other custo-
dy— either retain the possession himself, or commit it to a bailee ; and if
the bailee execute a bond, it will be obligatory, altliough the plaintiff will
. not be bound to accept it in lien of the officer's responsibility, lb. . , .466
5. A bond which the declaration alledged was made payable to a sheriff,
did not state in tolidem verbis, that he was such officer : Held, that the un-
dertaking in the condition, that tlie obligors should perform it to the obli-
. gee, or his successor in the office of sheriff, sufficiently indicated his affi-
rm ^cial character. Quere? Would not the bond he p-ima facie good, so as to
devolve the onus of impeaching it upon the obligors, though it had omitted
to show who the obligee was, otlierwise than by stating his ijame. lb. 467
6. Quere7 Would a bond taken by a sheriff, who had seized a boat under pro-
cess issued upon a libel in nature of an admiralty proceeding, be void be-
cause he agreed that the obligors might navigate it to a point not very re-
mote, and unlade its cargo, as the master had undertaken to do. Or would
^ not the obligors be estopped from setting up such an agreement to impair
w their obligation r 467
. .' -undex. - . ■ '9S9
DEEDS AND BONDe— coN?*iNc^»e- "^^ "•.
. $.. The obligors stipulated to deliver to tlie sherift" at a place designated, a
. ■ boat which he had seized under legal process, on demand, if a decree of
condemnation should be rendered against it — the sheriff " having execu-
.. tion then against :" Held, that the bond did not contemplate a demand at
, ..any particular place ; and that the form of tlie execution which the sheriff
- held when he made the demand, was immaterial ; if it was one which war
ranted the action of the sheriff against the boat 467
8. The act, of 1818, declares that all joint bonds shall have the same effect
inlaw as if they were joint and several ; consequently, where a bond exe-
cuted by a number of persons requires that a demand of performance shall
• be made in order to put them in default, it is enough to proye a demand of
the obligor against whom suit is brought. lb.. ...,,. — 467
9. If a bond for the delivery of a boat seized under process, in a libel suit, is
J good as a common law bond, it may be. proceeded on as a stipulation, al-
L though it does not conform to the statute. . Bdl and Casey v. Thomas, 527
. to. The design of the statutes requiring registration, was to give notice, that
* - creditors, and purchasers, might not be deluded, and defrauded, and as to
^ -all such, who have not notice in fact^ the unregistered deed is void. Ohio
. ' Life Ins. ^ Trust Co. v. Ledyard, ^c. — 866
.3^. See Appeals and Certiorari, 2, 3.
'^: See Constable and Surety, 2. .
■J. See Erasures and Inteifeeattocs, 1.
. i^ See Estoppel, 2.;v'V* --/;■.
See Evidence, 1.
See Infancy, 1.
' See Mortgage, 1 .
*: BcQ Pleading, 1 1.. .
<l(*\--. , .'.,-. y ■■•. • »
'1WEEDS AND REGISTRY OF.
"it; Where a father conveys personal property to third persons in trust for
a married daughter, and delivers the property accordingly, neither the se-
*■ • cond section of the statute of frauds, or the act of 1823, " to prevent fraud-
ulent conveyances," make registration necessary to its operation against
,^ the creditora of th$ husband. CfMeil, Midmux ^ Thomas v. Teague and
Teagw .......:...... 345
2. A certificate by the proper officer, indorsed upon a deed' of trust, that the
maker appeared before hhn, within the time prescribed by law, "and ac-
*-" knowledged that he signed, sealed and delivered, the foregoing deed of
'' trust, to the aforesaid W. M. M." (the trustee,) is a sufficient acknowledg-
ment of its execution, to authorize its registration. Hobson v. Kissam Sf
co.^c... :. . : . . .........!.; :...:. .357
3, Under oup statutes of registration, actual notice of the- existence of a deed
990 INIXfciX,. •, .. '• .
DEEDS AND REGISTRY OF— eon'riNUED. ,-p.i?^;?«-^*«.-
is equivalent to the constructive notice afforded by registration. OWd
Lije fyis. Co. v. Ledyard, Sfc , 866
4. The creditors spoken of in the statute, are not creditors at large ; but a
creditor whose debt is liquidated, and a lien given on property by the
debtor for its pajonent, is protected by tlie statute, against prior unregis-
tered deeds, of which he had no notice, lb 866
Sec Deeds and Bonds, 10.
Sec Mortgagee and Mortgagor, 2.
DEEDS OF TRUST.
1. A deed of trust operative as a security for the payment of money, is not
fraudulent ^er se, on account of iRe reservation of uses to the grantor.
; Graham v, Lockhart '. . .' — ..'.....■. 9
2. Qiterc? Whether a deed conveying property for the benefit of sureties,
and fixing the law day of tlie deed to a time subsequent to the maturity of
^,'the debts for which the sureties are bomid, is operative as a comseyance,
without the assent of the sureties. lb. 9
3. So far as the particular creditor is concerned, the debtor, with his assent,
may stipulate that the effects conveyed may be continued, in trade or
•planting, for a definite or indefinite period, but such a stipulation cannot
prevent any other creditor from his right to sell the resulting trust of the
debtor, in satisfaction of his execution. lb .9
4. Where the intention is declared to attack a deed of trust for fraud, it is
competent for the trustee to show tliat his action, with reference to the
trust property has been in accordance with the deed, for the purpose of re-
butting any presumption which might arise jrom.tlie acts' of the grantor.
lb... 10
5. Where debts are described in a deed of trust, as the consideration upon
which it is founded, a misdescription, either as to the names of sureties,
dates, or sums, will not affect the validity of the deed, and evidence may
^ ;be given of debts created by notes, &c. variant in some respects from those
described in the deed. lb. * 10
6. Where one of tlie trusts of a deed was to pay certain outstanding judg-
i. ments, and afterwards these were superseded by writs of error bonds, it is'-
- ijpompetent for the trustee to show their payment by him, after their affirm-
. ance. lb 10
7. D. C. & Co. being bound on certain bills of exchange, for another firm,
obtained from them, as an indemnity, a bill of exchange for $4,000, to be
-.^held as collateral security. The debt, to secure which it was given, was
^•' discharged by the acceptor, by payment, some time in April, 1837; not-
4.^ withstanding which, D. C. & Co. caused tlie bill for $4,000 to be protcst-
•f¥*.«1>, . ta-ft-xg-iy^Aviii y)if$twMmt'% ,rwi^^y^^i^^^^> y-^hgtatfcw^^On 'it^i^ t
INDEX. ' , 991
DEEDS OF TRUST— co.xTmuED. ' / ' .'-..♦
-. ed for non-payment, on tlie 14th April, 1837. On the 12th May, 1837) -^^^
.i 5^ 1). C. & Co. made a deed of assignment, of all their effects, to P., as trus-
'sfftee, for the payment of debts, in which this bill was not included. On the
^*^^30th May, 1837, D. C. fraudulently put the bill for $4,000 in suit, against
•''"vC. C, who had indoi-sed it for the accommodation of the drawers, and by
■^his neglecting to make defence, a judgment Avas obtained, in the name of
■'"D. C. & Co. against him, which he ineffectually attempted afterwards to
T^DJoin in Chancery. SiafbsequentljC, ?i &. W. creditors of D. C. & Co., . •
obtainecf an assignment of the judgment from. D. C. & Co. P., tlie trustee
exhibited his bill, to get the benefit of the judgment, alledging, that it
passed to him under the assignment. Held, that as D. C. & Co. had no
'*' "title to the bill, upon which the judgment was founded, at the date of the
'• deed, none passed to the trustee by the assignment; and, that he could
Vi" hot deduce a title under the general clause of tlie assignment, by a fran-
V ' dulent act of the assignor. That altliougli the grantor was estopped from
J'setting up a title in himself, by alledging his own fraud, yet, tliat a Court
» jjof Chancery would not interfere, and divest tlie title of anotlier, who did
. .,i*^ript deduce his claim through the fraudulent act of the grantor. Casey, et
als. V. Pratt 238
8. A mortgagee, or cestui que trust, may proceed to foreclose a mortgage, or
•"^ ' deed of trust, in a Court of Equity, although the deed confers a power of
sale. Marriott if Hardesty, et al. v. Givens 694
9. There is no necessity for the mortgagee, or cestui que trust, to go into equi-
\ ty to protect themselves against a creditor of their debtor, who levies on
- the property covered by the mortgage, or trust deed, upon the expiration
.•^of the law day, as a claim then interposed under the deed will be sus-
■ tained. lb 694
10. A stipulation in a trust deed, to secure the payment of certain debts, pro-
, ■ viding that the debtor shall remain in possession of the propeity until a
. '*-jiamed day, and afterwards until the trustee should be required, in writ-
ing, by his cestui que trust, to proceed and sell, does not extend the law
day of the deed beyond the time fixed for the payment of the debt ; and
: if a levy is made after tliat time, by a crfeditor, the trustee may protect the
property by interposing a claim under the statute. Ih 694
11. When personal property, conveyed by a trustdeed, is levied on by credi-
• '■ tors of the grantor, and claimed by the trustee under the statute, his cestui
que trust is not entitled in equity to restrain tlic creditors from proceeding
. ■ in the claim suits, npon the ground that he desires a foreclosure. lb. 694
. _ See Chancery, 2, 18, 21. . » , ^
• See Debtor and C^editCM^Av
See Evidence, 4, V;Wv-^r.. .. -
See Trustand TriKstee, I. , . • ,^>5 --•
992 , INDEX.
DEMAND.
1. When a hired slave has left the service of tlie person to whom it is hired,
and has gone to the house of the one hiring it, a second demand is unne-
.; cessary, when one is made, and the person hiring consents to take tlie
-slave, if returned the riext day. fVier v. Buford. 134 ^
2. When a certain time is fixed for tlie, delivery of ponderous articles, no de- ,
, ,mand is necessary to put tlie defendant in default, though he may defend
ji" himself against tlie action, by proving his readiness on tlie day. Sorrell
,..<«. Craig, adm^r., 567
See Deeds and Bonds, 8.
DEPOSITIONS.
1 . Interrogatories propounded to the plaintiff under the statute, are not in tlie
i- iature of su fishing bill, where, in connection with the affidavit made previ-
■j^us to their being filed, they state the existence of a pertinent fact, which*
.lb: the defendant believes to be within the plaintiff's knowledge, and calls on.
him to answer in respect thereto. Chcmdler v. Hudson, use, S,-c. 366
2. Where interrogatories to the plaintiff are allowed, and an order made that
imhe answer them witliin a definite time after the service of a copy, the Court
, a}»impliedly affirms tlieir pertinency, and the defendant cannot be compelled to
••receive answers irregularly verified or insufficiently authenticated, lb. 366
3. Wfiere the plaintiff, to whom interrogatories are propounded, is a non-re-
sident, he may pray a commission to some one designated to take his an-
^vrers, as in other eases where depositions or answers in Chancery are t^
he taken; but.the certificate of an individual, describing himself as a jus-
tice of the peace of another State, and affirming that the plaintiff there
.-verified his answers by oath administered by tliat individual, is not a suffi-
- 5, cient verification. The Court cannot judicially know his official character,
/ jffor is it competent to prove.it by the testimony of a w^itness who heard it
said, at the place where the answers were made, that the person certify-
ing them was a justice of the peace. lb 366
DESCENTS.
1, One of the legatees having died before the contingency happened, leav-
. 'vag one child by a former wife, and three otliers by a subsequent marriage,
^d two of the last children having also died: Held, that the portion of the
two last children, in their father's legacy, would descend to their sister of
the whole blood, to the exclusion of the remaining sister of the half blood.
J^cLemore, et al. v. McLemore, adni'r 687
t)OMICIL.
1. An intention to change the doniicil, without an actual removal, with the
intention of remaining, does not cause a loss of the dpmicil. The State v.
HailfM, ^.i^xtryif^-X-C^UL, >59
INDEX, 993
DOMICIL — CONTINUED. r • ^i ( »^f ?•;«■<♦ '- :
2. Where one, resident in Georgia, came' 16 fliis "State, for the purpose of
settling here, and leased land and purchased materials for the erection of
a foundry, and returned to Georgia for his family, and after some detention
returned with his family, and has ever since resided in_^this State — Held,
. ' that he did not lose his domicil in Georgia^ or acquire one in this State,
until his actual removal to this State, witlrthe intention of remaining, lb,
159
3. When a person removes and settles his family at a place different from his
former residence, the presumption is that such is also his residence, and
the«[iere- fact that he r^urns to his former place of doing business, is in-
sufficient to warrant tlie presumption that such is his place of transacting
. business. This is a matter peculiarly within the knowledge of the defend-
ant, and should be made to appear with certainty, I^ggs v. Avdreivs &{
Co. 62^
DOWER.
1. A conveyance by the husband, to his Avife, of a life estate in certain pro*
perty, which conveys to ' her a present, vested interest, and is not testa-
mentary in its character, will not bar the widow of her dower. Distrihw
tees^^Miiclvelly v. MUchdl, adm'r. 415
EJECTMENT AND TRESPASS TO TRY TITLE. ;
^ See Limitation, Statute of, 2, 3, 4,
ERASURE AND INTERLINEATION.
1. In an action upon a bond, if there is no issue which imposes upon th6
plaintiff tlie onits of proving its genuineness, it should not be rejected as
evidence,^ hecause it has interlineations which he does not account for.
Perhaps if it had been offered as evidence witiiout having been made tlie
basis of an actioB, and the interlineations w£re such as to warrant the sus
picion that they had been made after the Taond was executed, or without
authority, they should be accounted foj. Whitsett v. Womack, use, ^'c. 467
ERROR, WRIT OF.
1 . It is competent for the clerk of a Circuit Court to issue a writ of error to
remove to this Court, a cause in which a final judgment has been rendered
upon a forfeited" recognizance, or for a fine or penalty, without a previous
order for that purpose. Hodges v. The State ". . . 55
% The statute which gives a writ of error or appeal from all judgments, or
final orders of the Orphans' Court, does not take in cases in which neither
writ of error nor appeal could be taken, by the course of practice in the
Courts of the civil or common law. Watson andioife v. May, ........ 177
- 125 .
994 INDEX.
ERROR, WRIT OF— co:xtinued.
3. Persons having an adverse interest, are not concludedby an erroneous'
decree, but they cannot, without further proceedings, forthwitli sue out a
•' - writ of error. lb 177
4. When a writ of err?)r is sued out by persons who are not parties to the
proceedings below, the writ of error will be dismissed. lb. 177
5. One who is ejected from land of which he was in possession, under pro-
cess issued from a Court of Chancery, in a cause to which he was not a
party or privy, cannot, on error, avail himself of irregularities occurring in
the decree, or other part of the proceedings. Trammd v. Simmons. . . .271
6. When a judgment is erroneously entered seAjprally against tiie parties
bound by a joint recognizance, the entire proceedings as to all the parties
^'lU be reversed upon the writ of error sued out by one only, and the cause
.' V> remanded, that its unity may be-preserved. Ellison v. The. State 274
7. The Supreme Court cannot be invested with jurisdiction to examine a
cause in Chancery by a writ of error sued out on a decree pro forma, en-
tered by consent of the parties. It is competent for tlie Chancellor to set
aside such a decree as having been entered without any suiRcient authori-
Mty. Stone, etal. v. Lewin .395
.8. After a will has been admitted to probate, letters testamentary granted
thereon, and proceedings had thereon to a final settlement of the estate, the
propriety of the probate of the will, cannot for the first time be raised in
this Court. Botkwdl, et al. v. Hamilton, AdhCr 461
9. A catlse is not before the Supreme Court, iso as to authorize that Court to
make an order in respect to it, until' tlie term when the writ of error is re-
turnable. Renfro, by her next friend, Ex parte — .490
10. Where it is obvious from the proof furnished by the plaintiff himself, tliat
he is not entitled to recover,' no matter what may be the ruling of the
\- Court upon other points raised in the cause by a prayer for mstructions to
the jurj', an appellate Court should not reverse a judgment which Ytxa been
rendered in favor of the defendant. Turcott v. Hall. . 522
11. Wliere a question of law, which should have been decided against tlie
party excepting, is referred to the jury as an inquiry of fact, whose verdict
efiects the proper result, tlie judgment will not be i-eyersed for the irregu-
larity. Courtland v. Tarlton8f Bullard. 532
12. Whether the admission of facts, in a written proposition to compromise, be
admissible evidence, or not, it is not error "to charge the jury, that if the
paper was written with the view to a -compromise, and the promises con-
., tained in it were made for that purpose, the defendant was not boimd by
/", them. Such a charge does not deny effect to ihc facts. lb 533
J3. An execution was issued by a justice of the peace, at tlie suit of C. against
'..tte goods and chattels of A., and levied pn a^slave, which A. madeoatii
INDEX. ' 995
laiROR, WRIT OF— CONTINUED.
was the property of W., and held by the affiiant as his agent: atrial of the
right of property was had between the plaintiff in execution and A., as
agent, and the slave condemned to satisfy the execution ; A. then, upon
his petition, obtained a certiorari and entered into })«nd with M. as his sure-
ty, and the cause being removed to the Circuit Court, was dismissed,- on
motion of C: tliereupon W. applied for a writ of error, and executed a bond
with surety for its prosecution. Hdd, tliat if W. was the owner of the
slave, the claim of property and all subsequent proceedings should have
been inhis name, instead-of the name of A.', as agent ; that W. could not
prosecute a writ of errqr on the judgment of dismissal, and that the judg-
ment was coirect. Alford andMixonv. Cdson, use, ifc. 550
14. When the petition of administrators claiming distHbution as the represen-
tatives of a distributee is dismissed, and tlie final settlement in the Or-
phans' Court is made with other parties, the proper mode to revise the pro-
ceedings rejecting the claim is by certiorari, and a writ of error will be
dismissed. Graham, et al. v. Ahercrombie -.552
15. When a demurrer is overruled to one count of a declaration, which is af-
terwards abandoned at the trial, this Court will not examine into the suffi-
ciency of such count. Gayle v. The Cahmvba and Marion R. R, Co. . . 586
16. The party having proceeded and obtained another verdict aij^l judg-
ment, is responsible for any errors they, may contain until the irregular
proceedings are set aside. Sanky^s Ex'rs v. SanJq/'s Distribvtees 602
17. An appellate Court will not reverse a judgment because testimony unne-
cessary and superfluous, but which could not have misled the jury, has been
permitted to be adduced by the successful party. Farit v. Cathcart.. .726
18. Where, giving full credit to all thd plaintiff 's^proof, it fails to make out
such a case as entitles him to recover, a charge to the jury which is erro-
, neous, as the assertion of a legal proposition, furnishes no ground for the
reversal of a judgment against him. Smith v. Houston. 737
19. Where infants are cited and do not appear, it is not error to render a de-
cree without the appointment of a guardian ad litem. Parks v. Stonum, 752
20. The writ and declaration were at the suit of J. A. R., assignee, (&c. of S.
A. W. and A. R. ; on the margin of the judgment entry the case is thus
stated, J. A. W. assignee, &c. of W. and R: Held,thvit if the names of
the parties had been entirely omitted on the margin of the judgment, the
writ and declaration might perhaps have been referred to, to sustain it ;
but however tliis may be, the error was a " clerical misprision in entering
judgment," and qnder the act of 1824, is amendable at the costs of the
plaintiff in error, where a correction is first sought in an appellate
court. Crawford v. Whittlesey 806
21. Where a party is permitted to give incompetent testimony to support an
990 • INDEX.
ERROR, WRIT OF— continued.
account, and afterwards becoming satisfied tliat the evidence is insufficient
or inadmissible, withdraws the account, the error in admitting tlie assist-
ant proof is cured. ' Strawbridge v. Spann. . 821"
22. Wlierc a party is akeady before the Court, and the suit is improperly dis-
missed, a writ of error is the proper remedy. Bradford v. Bayles, el al. 8C5
23. When a demurrer is improperly sustained to a plea, but the pai-ty defend-
ant has the benefit of his defence before tlie jury on another plea, or the -^
record shows he is entitled to no defence under the plea overruled, the -jH^"*
judgment will not be reversed. SMhem v. Hampton 943 ' .'•
See Appeals and Certiorari, 6. ,
■ Sec Attachment, 2, 5.
Sec Bankrupt, 10.
See Court, Charge of, 4. ■•
See Evidence, 67-.
See Orphans' Court, 8, 13.
See Right of Property, Trial of, 3.
See Sheriff and his Sureties, 2.
ESCHEAT.
L The true-construction of the two acts of the legislature for the relief of Eliza-
-'•'beth Morris, is, that she was made capable of inheriting the lands of her
'* uncle, James D. Wilson, in tlie samd manner as if herself, her mother, and
her uncle, had been native bom citizens. The declaration in the act, that
the land shall not escheat to the State, is a waivar of the right of the State
in her favor only, and will not enable her brother, who is an alien, or was
^^eo at his uncle's death, to inherit as his heir. Congregcdional Church at
-Mobile V. Elizabeth Morris 182
2. Whether the saving in favor of creditors in the statute of escheats applies
to' the land held by an alien at his death — Quere9 But if it does apply in
•^ 'such a case, the fact of such indebtedness would not prevent the escheat.
Nor could the land be sold by an administrator of tlie alien, for the pay-
ment of creditors, witliout authority from the Orphans' Court, as in other
'a cases. lb 183
ESTATES OF DECEASED PERSONS.
1^ T'he act of 1843, which requires creditors to file tlieir claims in the clerk's
\ ofiice of the Orphans' Court, witliin six montlis after the estate is repre-
.jjSented insolvent, creates a bar to all claims not so presented. HoUinger,
et al.v. Holly, et al * . . .454
2. The omission to verify the claim so filed, by the affidavit of the claimant,
is not ground for rejecting the claim, unless an exception to it is filed with-
in the time allowed by the act lb 454
INDEX. 997
ESCHEAT— toNTmuED. - , • .
3. Wh6nthd petitron of administrators claiming distribution as the represen-
tatives of a distributee is dismissed, and the final settlement in tlie Or-
phans' Court is made with other parties, the proper mode to revise tlie pro-
ceedings rejecting the claim, is by certiorari, and a writ of error will be
dismissed. Graham, et al. v. .Mercrombie, et al 55^
4. The interest of a distributee in an unsettled estate, is the subject of as-
signment.; if one is made, it divests the interest of the distributee, so that
no proceeding can be had by his representatives against the administrator; ■
, his assignee is thereby invested witli all his rights, and tliey may be as-
serted by him in his own name. lb. 552
5. The proceedings in a testamentary cause being reversed back to an ac-
count of distributable assets, in a contest between distributees and execu-
tors, it was remanded, that a guardian should be appointed to • an infant
distributee, with leave to the guardian to investigate the accounts ; Held,
that the privilege did not extend to the eStecutor, he being named as the
'testamentary guardian, and after the return of the suit to the Court below,
qualifying as such. Sankeifs Ex'rs v. Sankeifs Distributees 601
6. As soon as the fact was disclosed that the infant distrib^itee was repre-
sented by the executor, the parties^ were complete, and the Court should
"have proceeded to render judgment on the former verdict ; wliich, under
these circumstances, it was irregular to set aside. lb 602
7t It is erroneous to render a joint judgment in favor of all the distributees.
'The proper judgment is a several one for the amount coming to each, and
if an infant is represented by the executor, as guardian, he should be per-
mitted to retain his ward's portion.' lb 602
8. When the record states, " tliat the exhibits and accounts,- were ordered to
be recprded, and spread upon the minutes of the Court, and jeported for .
allowance," at a particular day, more than forty days afterwards, it is equi-
valent to stating that the accounts were examined aad audited. Paris vl
Stonum '. r — 752
9. When the Orphans' Court of Conecuh directed notice to be published of
the time-of the settlement for six weeks, in a paper in Mobile, it is suffi-
cient if the first publication is made as soon after the Court as might be
lb.: :....... 752
10. Where land is sold by order of the Orphans' Court, to make more equal
distribution among the heirs, and security is not required to be taken for
the purchase money, the heirs have an equitable hen upon the land for the
purchase money, which may be enforced either against the original pur-
chaser, or against a purchaser from him, witli notice of the facts. Strange
etal.v. Keenan.. 816 '
See Advancement, 1 , 2, 3, 4. ■
998 INDEX.
ESCHEAT— CONTINUED. • ■ i
See Executors and Administrators, 12.
See Wills and Probate of, 4.
ESTOPPEL.
1. B. was indebted to S. (his father-in-law,) or S. was bound to advance mo-
ney for liim, B. sold to D. a house and lot, and took his note payable to S,
for tlie purchase money ; B. had been a partner of F. in a mercantile es-
tablishment. Upon tlie dissolution of tlieir partnersliip, the firm were in-
debted to B. more tlian $1,000, which he was to retain, and appropriate the
residue of the effects to the* payment of tlie joint debts; some of the de-
mands due B. and F. were placed by the former in tlie hands of S. as a jus-
tice of the peace, to collect, who acknowledged their receipt from, or his
\ accountability to S : Hdd, that the inducement for taking the note and re-
ceipt in S's name, was sufficient to free.tlie transaction from the imputa-
tion of fraud ; that a debtor may prefer one creditor to another, and the rela-
tionship between B. and S, could not prevent tlie latter from securing him
self ; fmiJier, that by making the note payable to S., L. admitted tliat he
,_ , was entitled to tlie money, and cannot be heard to alledge the reverse.
■ Lotvrie v. Stewart 163
2. Where a \vrit of capias ad satisfaciendum issues at the suit of one man for
the use of another, the defendant is^arrested thereon, and enters into bond
with sureties, payable to the nominal plaintiff, for the use, &c. as express-
ed on the face of the process .; conditioned that^tlie defendant will continue
, a prisoner within tlie limits of the prison bounds ; in an action brought
thereon in the name of the obligee for the benefit of the party shown to be
really interested, a surety is not estopped from alledging that the obligee
died previous to the institution of the suit. Nor does the bond amount to
• an admission that the obligee was living when it was executed. Tait,
use^ 8fc V. Frow 543
See Lessor and Lessee, 3. •
EVIDENCE.
1. To let it a deed as evidence, it is not essential that the subscribing wit--
ness should remember its execution. His statement that his superscrip-
tion as a witness was genuine, and that it would not have been placed
there unless he had been called to witness it, is sufficient Graham v.
Lockhart I ... 10
2. Where the intention is declared to attack a deed of trust for fraud, it is
competent for the trustee to show that his action, with reference to the
trust property has been in accordance with the deed, for the purpose of re-
INDEX. ^m
EVIDENCE— CONTINUED.
. butting any presumption which might arise from the acts of the grantor.
■lb 10
3. Where notes and other ^vritten securities are described as the considera-
tion of a deed of trust, parol evidence may be given of them, witliout pro-
ducing them to the jury, when they are not witlain the control of the party
offering the evidence. lb. — 10,
4. The admissions of a trustee- having no beneficial interest in tlie property
Conveyed to him, cannot be given in evidence to defeat a deed of trust ex-
ecuted solely for tlie benefit of otliers. lb 10
5. 'Where one of the trusts of a deed was to pay certam outstanding judg-
• • ments, and afterwards these were superseded by writs of error bonds, it is
■ competent for the trustee to show their payment by him, after their affinn-
• ance. lb 10
6. It is erregiilar to permit a witness to give evidence of the general law mer-
chant Hogan Sf Co. v. Reynolds 59
7. It is not improper to permit the parties to ask a witness, whether he in-
tended to convey to the jury a specified impression, by what he had previ-
. oudly stated. Tb 59
8. A witness having stated, that one of the firm sued, had borrowed a sum
of money from a third person, of which a part had been paid from the firm
effects since its dissolution, also stated, tliat he thought the note of the firm
was given for the money so borrowed, but was not certain whether it was
y the npte of the firm sued on, or the note of another firm, of which the samb -
' partner was a memberjunderthese circumstances the evidence is admissible,
although the note is not produced,«or its absence accounted for. lb. 59
9. A receijpt in tliese terms, to wit : " Received of W. R. one of the executors
of W. W. tj^'o 'notes of hand on W. G. &' J. McN. amounting to |1,750,
due. 1st January, 1838, #hich we are to collect, or return the same to the
said R.with interest from the time it was due," is open to explanation by
parol evidence, so as to show whether the words tdth interest, &.c. was in-
'■ tended to refer to tlie return of the money, by the signers, or to the amount
• whicli was to be collected from the notes. 16. 59
10. The admissions or declarations of a vendor, or assignor, of personal pro-
perty, made before the sale or assignment, are evidence against his vendee
. or assignee, claiming under him, immediately or remotely, either by act or
operation of law, or by the act of the parties. So they are in like manner
evidence against any one, coming after such admissions, or declarations
madd, into his place, or representing liim in respect to such rights and lia-
bilities. But the exclusion of such evidence, where it could not have work-
ed a prejudice, will not be available on error. • HoHon v. Smith 73
11. The Bank of the State and.itS Branches, being public property, its books
WaO INDEX.
ENIDENCE— CONTINUED.
are public whtings, and when the books tliemselves would be evidence, if
produced, sworn copies are admissible in evidence. Crawford v. The
Branch Bank at Mobile .- 79
12. A clerk of the Bank cannot testify to facts of which he has no knowledge,
from notes, or memoranda, taken from the books of the Bank. Tb 79
13. A witness, on (lie trial of a forcible entry and detainer, produced certain
articles of agreement, entered into between himself and the plaintiff, by
which the latter stipulated to keep him in the peacfDable possession of the
premises in question, until the, first day of tlie succeeding year, (1844 ;) at
which time witness undertook to deliver peaceable possession of thp land
to the plaintiff. Witness further stated that he received an equivalent for
the undertaking on his part, and accordingly gave up the possession for the
■ '• plaintiff's benefit, even before the day agreed on. One of the subscribing
witnesses also proved the execution of the agreement. Held, that tlie
writing was admissible to show the plaintiff's possession, and how acquir-
ed ; and that its execution might be proved, either by a party to it, or a sub-
scribing witness. Hvffaher v. Boring. 88
14. The testimony of a witness, in a proceeding for a forcible entry and de-
tainer, that he " he had fodder oh the premises by plaintiff's leave, and
plaintiff told witness, that he could have the land, or part of it, during the
year," &c., is admissible as to the first branch, viz : that tlie witness had
fodder on the premises by plaintiff's permission : because this tends to show
* ' an actual possession , but inadmissible as to tlie second, because' it amounts
^ to notliing more tliarf a mere assertion of a right by the plaintiff. Collier,
' C. J., thought tlie testimony inadmissible, in toto. - Ih 88
15. The defendant in execution made a sale andconveyanceof his entire es-
tate to the claimant, and the former made certain statements to his credi-
tor, to induce him to accept the claimant for liis debtor: lleld,ihat as these
.statements were no part of the res gestae, viz : the sale ai)d Conveyance, tlie
creditor to whom they were made, could not be allowed to narrate them as
evidence. Borland v. Mayo 104
16. With a view of showing that a sale of aroperty on long credits was fraud-
• ulent, by reason ot the inadequacy of the price agreed to be paid, it is |)er-
missible to prove, that Ihe price stipulated is less tlian the property in
question would have commanded, on the time given. lb. 105
17. The declarations made by a vendor, previous to the sale, are admissible
to coiltradict his testimony given on the trial of a cause in which the bona
fdes of the sale is drawn in question. lb 105
18. The declarations of 'a vendor are admissible against his vendee, Avhere
the purpose of botli was to consuiftmate a fraud by the sale. lb. 105
19. Where the vendor of a plantation and slaVes, in g^ng testimony, with a
liNi)EX. lOOl
EVIDENCE— CONTINUED.
«,--yiewto support the sale, staled tiiat he acted. as the vendee's overseer, it
* Was allowable for the adverse party to inquire of another witness, whether
he ever knew the vendor to act as an overseer of the vendee. lb 105
20. Evidence of declarations made by a defendant in execution, which are not
part of the res gestce, are not admissible upon the trial of the right of pro-
».^erty against the claimant, who deduces a title from the defendant — the
defendant in execution is himself a competent witness. lb. . . ., .105
21. With the view of showing the transaction to be fraudulent, it is cdmpe-
. tent to show that tlie vendee, who purchases from his son-in-law all his es-
r'tate (which is a large one.) even on time, was himself greatly indebted at
the time of tlie purchase. i&. . . .p.... ..'.....•.. .^.y. ;... .^.<w. .,/.',•. ljD(5.
22. Where the vendor of property rematns in poasession, his decl47Stio|i&in
respect to tlie same, are evidence against the vendee. lb. .^ . «.'.,>..•. 105
23. The payee of a gaming note, who has transferred it to another, is a com-
petent witness for the maker, and may be compelled to testify as to tlie
;,%Gonsideration of the.note, upon .a bill in Chance.iy, filed by the maker
against the indorsee. Manning v. Manning, d al. ; — ; 138
24. Whether his testimony could be used against him, as. an admission, Up-
on a criminal prosecution for gaming^— Q«ere? lb . — 138
25. When a certified copy of a registered deed is admissible in evidence, it
■^'^prinm facie a. correct copy of |he ori^inalj but may b.§ shftwn to rtfe in-
. correct, by comparing it, either with the original deed, or tlie record of it on
...tJie Register's book. But where tlie difl^erence between the record of the
':j'dded, and the' copy taken from it, consisted in a scroll, or, written seal,
j,-jirliich was found in the.copy^ and did not a;pp8ar upon tlie, record bpok,
, wheij produced ini Courtj it w^s not error^for the Cguyt to leave it to tii6
jury, to say, whetlier the copy was not correct when it was taken, as the
original deed was in Court, in possession of the other party, which he den
-. ©lined to produce. CongregcUiomd Church at Mobile v. Eliz. Morris. . . 182
26.. The contract evidenced b^ a blank indorsement, is a^scertaiued by the
law,.and cannot be modified or changed by parol" evidenee. TanJcerslei/ v.
XifA. Graham.... . . , . ...... .....,...,, .247
27. When evidence is given to show, that the condition, of the indorsement
of a note, was the sale of lands, and proof is also given, tliat tiie lands had ,
^bgen patented to another, wh.ose heirs were suing the defendants for a re-.
■'.^Qvery, the evidence of the patent and suit may properly be excluded from
. tiie jury, unless an eviction is also shewn. lb .247
28. A. permission by one in possession of a lot, to another claiming a part of it, ~
to, move the fence so as to take in part of the lot, may be given in leyi-
, '. diBiice, upon a question of boundary, as an adpiissiori of the person then in"
^-possessitaij.against his intei-est, tliough a ^trang^r to the title, ..It would.
120 ....;-
1002 INDBX'.
EVIDENCE— CONTiNUED.
not be conclusive, even if made by one claiming title, or by his authorized
agent. Doe ex (km. Farmer's Heirs v. The Mayor Sfc. of Mobile ;279
29. The boundaries of a public lot, may be proved by general reputation,
therefore a deed for an adjoining lot, calling for the " King's bake house
lot," as its northern boundary, is admissible to prove as general reputation,
that at the date of the deed, tlie bake-house lot had an ascertained boun-
dary ; and tlie conduct of the party claiming under such deed, is also evi-
dence of the general reputation at the time, of the true boundary of the
bake-house lot. Whether such evidence would be admissible in the case
of a private lot — Quere? lb 379
30. The owner of a slave is a competent witness for the Stale, upon a trial of
the slave for a capital offence. The State v. Marshall, a slave 302
31. It is competent to prove, on the trial of a colored person for a capital of-
fence, charged in the indictment as a slave, that he admitted himself to be
V^ a slave. But where the proof was, that the prisoner had brought to the
witness a bill of sale of himself to .one E, transferred to- the witness by E,
which was objected to because the bill of sale was not produced Held,
that although this might be considered as an admission by the prisoner, of
h his status, and tliat it was not therefore necessary to produce the instrument
• by which it was evidenced, yet, as the jury may have been misled, and pro-
bably acted on the belief that the bill of sale was proof, tliat tlie prisoner
• • was, or had been tlie slave of E, in favorem vitce, it was proper there should
'be a new trial, lb 302
32. The declaration of a father, made to his son-in-law, when he delivered
to him several slaves, shortly afler his marriage, that they were intended
• for the use of the donor's daughter, and were not given absolutely as an
• advancement for her, are admissible evidence,. where a deed was subse-
quently executed for the purpose of carrying out the intention. O^JVeU,
Michaux Sf Thomas v. Teague and Teague ^5
33. Semble; that a fatlier who has settled property upon trustees for the ben-
;V efit of his daughter, is a competent witness for the trustees in a controver-
'• sy between them and the creditor of the husband, who is seeking to sub-
' ject it to the payment of the debts of the latter. lb 345
34. Where a written agreement contains more or less than the parties intend-
ed, or is variant from the intent of the parties, by expressing something
substantially different, if the mistake is made out by satisfactory proof,
equity will reform the contract, so as to make it conformable to the intent
. , of the parties. But such extrinsic proof, it seems, is not admissible in the
• absence of fraud, or some legitimate predicate on which to rest its admis-
" sion. 76 , 345
35. In an action against a surety upon a bond, executed in compliance with
IND5JX.
< . . • '- .
£he order of a.Chancpllor awarding an inj.qnGtion to enjoin a trial at law,
the records of the suits in.CJiancery and at law are admissible to show the
dissolution of the injunction and the amount of the recovery at law. Aruir
I- hy V. Mock 445
36. "Three persons being sued as partners, proof, that after part of the account
sued upon was created, and the. partnership dissolved, the retiring partner
paid- the others a -sum of money to cover his responsibility, for the firm
debts, is iiTelevant and inadmissible. Gooden ^ McKee v. Morrow Sf Co. 486
37; When a suit by attachment is improperly commenced in the name of the
party to whom a note not negotiable is transferred without indorsement,
instead of using the name of the person having tlie, legal interest, and the
.cause is afterwards appealed to the Circuit Court, the defect cannot then
.- be cured by substituting the name of the proper party in the declaration :
Nor can the note be allowed to go to the jury as evidence under the mo-
. ney counts in the declaration, in the nauie of the holder, without proof of a
promise to pay him a, note. Taylor v. Acre.. 491
38. A jiole >was.executed on.the IstApril, 1841, for the payment of $140, on
1st January after, with a memorandum underwritten "to be paid for when
. ' started ;" held, tliat tliis was such an ambiguity as might be explained by
extrinsic proof. Lockhard v. Avery 8f Speed, use, fyc 502
39. The contents of articles of partnership cannot be proved by the testuno-
ny of a witness who states that he saw such a, paper subscribed with the
, defendants' narnes, and apparently attested by two other persons as sub-
' ■ scribing witnesses, but with tlie hand-writing of all whom he was unac-
quainted. Anderson v. Snow Sf Co. etcd 504
40. Evidence was adduced to show that a private stage line had been stopped
by the attachment of its " stock," at tlie suit of one of the defendants.
-.Whereupon that defendant was permitted, upon proof of the loss of the
original, to give in evidence the *' record of a mortgage," executed to him
' ' by one of the alledged proprietors of the line : Held, that it can't be pre-
. sumed that the mortgage was inadmissible ; and the registry in the office
- of the clerk of tlie county court was admissible as a copy, lb 504
41. An accusation of perjury implies within itself every thing necessary to
constitute the offence, and if the charge has reference to extra jttdidal tea-
timony, the oniM lies on the defendant of showing it. It is not necessary-
, f in such a case to alledge a colloquium, showing that the charge related to
■ ^material testimony in a judicial proceeding. Hall v. Montgomery. . . .510
42. The fact that a merchant and his clerks kept correct books, and charged
promptly all articles purchased at the store — that certain articles charged,
..were suitable to the wants, of the defendant's family — that he. traded with
the plaintiffs, and was frequently at their store, are too remote to justify
the presumption that a particular account is correct. Grantv ColeSf Co, 519
m^- INDEX.
EVIDENCE— coNtiNtTEit ' - -' " ••- •
43. Entries iippn the books, may be proved by proof of the ^hand-writing, of a
MBeceased -clerk;* /6 .'C.y.':^ .»u!./;ftl9
43". Th6 '' account," or statement of the items of charge, by the plaintiffs, is
."* inadmissible as evidence to go to the jury. lb -. . .-519
45. To charge one for articles which he did not authorize the purchase of,
but which came to the use of his family, it must appear tliat he knew the
-■^Tact, and did not object, or offer to return them. Tb.. .519
4K One of tlie defendants AATote adetter to the plaintiff, from which it appears
'"that the latter had demanded tlie payment of three notes which the defen-
>^dants had given for his compensation in selling - certain lots in Mobile:
-Ctiie writer of tlie letter endeavors to convince the plaintiff of the injustice
fjrjf the requisition, by stating that but a small part of the purchase money
%'^d been collected, and proposes to pay him in proportion to the amount
"ieceived of the purchasers^ Held, that this letter was a refusal to comply
.•with the plaintiff's demand, and an offer to pay what was believed tabe
• *3right, evidently made with view to compromise", and consequently Tvas in-
**Mraissible as evidence againsl the defendants.. Cmiriland v. Tarlton Sf '
Bullard. '..^. , t .,'...:... ^. ..„,..,.... 532
47. An opinion of a' witness, that a testatof-was insane at-the tkne of making
■=lh& irai, is not- eoihpeteot t^timony, he admitting at- the same time, that,
"■^ifelmew no fact of cir-eiim'stailce on which hi& opiifion was foOhded. Bow-
^iingv. BowIingj^ET'r. . .\. . .-. ... .... . '. . .............. .- -....538
48. In an action of assumpsits at thesuit of a subsequent against a prior in- •
derser, to authorize the admission of the note as evidence, it is sufficient
*^. prove thtf signature of the maker and the defendant ; and the fecital in a
*^^bint judgftient rendered iipon tlie note at the suit of a Bank against the
Vdefendant, the plaintiff and maker, are evidence in such an action to
charge the defendant. Spence v. Barclay. .581
49. Where the Cashier of a Bank in Alabama, which was the holder of a bill
.'.^yaWe iff New Orleans, testified that tlie bill at the time of maturity, was
■*1sit the place of payment ; that in due course of mail thereaftep, he received
*%■ package containing a large number of protests ; that he had no distinct
•*^-ecoHection of the one in question; but does not doubt it was regularly re-
'*r^ived, and that notices were enclosed, enveloped, addressed and mailed
***ifc the drawer and indorsers on the same day, as such was his constant
■^'practice ; if he had received the protest under circumstances indicating
' "Ihatithad not been transmitted from New Orleans indue season, it would
'"^feave been noted,, according to the invariable mode of-idoing business iii '
•ji^Bank: He?c?, that the refusal ta instruct the jurythat the evidence of the
•Cashier was insufficient to charge the indorser with notice of the dishonor
of the bill was not »Ti" error ; and thafthe-evidence was such «Bmight^sell
M
INDEX. 1005
EVIDENCE— CONTINUED.
-have been left to the jury to determine its effect. Ball v. Tlic Bank of the
' State of Alabama ". ',.... .590
50. Where a Bank, which was making advances on cotton, stipulaied with
a shipper of that article that he should sliip only to the agents of the Bank,
who were to sell, &c., tlie stipiilation made tlie agents of the Bank, pro re
. " nata, agents of the shipper, and an account of sales duly furnished by such
» agents to their principal, is evidence against the shipper. lb 590
51. A certifid'd copy of tlie sheriff 's bond is sufficient, unless the authority of
the bond is questioned by plea, when it would be proper for the Court to
require the production of the original. Caslcey et als. v. JVitcher. 622
52. A witness cannot be asked, what were the " motives and intentions" of
another pei-son in executing a deed. Peahe. v. Stout, Ingoldsby fy Co. '647
53. Where one partner had been introduced as a witness to support a deed
of assignment, conveying the partnership property, and had sworn that the
deed was fairly made, and for the payment of the partnership debts, he
may be asked on the cfoss-examination, whether one of the debts provid-
" ' ed for in the deed, was not a debt created by himself, for the purpose of
raising money to put into the partnership, lb 647
54. While the declarations of a party in possession of land or of personal pro-
-perty, axe admissible as explanatory of his possession, it is not permissible
to prove every. thing he said in respect to the title, how it was acquired,
&c.; and an inquiry embracing so extensive a scope, should be rejected.
McBrideand Wife, et al. v. Thompson 650
55. "Plaintiffs claimed title under their grand-father, H. who purchased the
' .slave in qneetion, in 1833, a,t a sale undpreyecution against the estate of
•' their fether. A; -in 1839 A made a deed of trust, embracing the slave, to
W, to secure W and others for liabilities incurred, and to be- incurred, as
the sureties of tlie grantor, witli a power of sale to reimburse them for ad-
vances; in 1841 the trustee sold tlie slave to the defendant: JfeW,-That it
r •waS^cortlpetent for the defendant to ask A, who was examined as a witness
for the plaintiff, the following questions, viz : if W, at a time and place
designated, did not ask him, in the presence of S, if there were other liens
than the deed to W on the slave ? If there were not other liens on the
slave when W made the above inquiry? If he did not, after the trust sale
in 1841, in the presence of certain persons, admit that he owed W a. bal-
ance of $1500 ? Having answered the last question in the negative, the
defendant was permitted to disprove the trutli of the answer. lb. . .. .650
56. Where the maker of notes had received them several years previously,
' and delivered the notes of third persons in payment of them, it may be
presumed that they were destroyed or otherwise cancelled, so* as to let in
iiecondary evidence of their contents, without a notice to produce tiiemi in
1006. INDEX.
EVIDENCE— coNTiijfOED.
.•■MrX-9 .
a controversy in respect to tlie substituted paper. Pond, el al.. v. Lock-
imod, et (d i -.669
57. An answer in Chancery, when offered in evidence, is regarded as a de-
claration or admission of the party making it, and when the confession of
tiie respondent would, with respect to others, be res inter alios, it cannot be
received. Julian, et al. v. Beyfiolds, et al. . . . * 680
58. The declarations of a donor made subsequent to the execution of a deed
of gift, are not admissible to defeat the gift, lb .'. 680
59. Where a party against whom a judgment is sought to he enforced, al-
ledged in a bill for an injunction, that he was not served witli process, and
did not make the note on which it was founded, the deposition of a per-
son of the same name, declaring tliat he made a note of the same amount
and date in which the complainant did not unite, will be sufficient to sus-
tain the latter branch of the allegation, if uncontradicted. Givens, et al. v.
Tidmore, 746
60. Where, by a bill to enjoin a judgment recovered on a promissory note'
the record of the proceedings at law, and the note, are all made evidence'
proof in respect to the non-execution of. the note should not be excluded
because the note is not produced, lb 746
61. Confessions, or admissions,'must be taken altogether, but the Jury are not
bound to give equal credence to every part of the statement. When the
admission is not a whole, or entire thing, but consists of parts, the jury can-
not capriciously reject the portion favorable to the party making it ; tliough
slight facts or circumstances would be sufficient to justify them in disre-
*garding it. Wilson v. Calvert, AdnjUr. ;, . . .757
62. The value of the board of a lunatic, depends upon his condition, and tlie
care, attention, and watchfulness, necessary to be bestowed upon him, to
be ascertained by jyoof. Declarations of persons, " that they would not
board him for $500 a year," is not proof that it was wortli that sum. M-
exander v. Alexander. 796-
63. When a party to a suit in chancery, is examined before the master, upon
an account taken by him, his answers to the points upon which he is ex-
amined, are evidence for him ; he cannot introduce irrelevant matter as to
which he is not questioned, and make it evidence for him. The statute
authorizing a party to prove items not exceeding §10, by his own oatli
has no reference whatever to the practice in chancery, when a party is re-
quired by the chancellor to submit to an examination before the master.
lb 796
64. To authorize a charge for attention to a sick negro, it should be shpwn
how long he was sick, and the nature and value of the attention bestowed
upon him. lb 797
INDEX. io'or
#
EVIDENCE— c ojvTiNUED.
65. It is competent to inquire whether an account against a party was riot
charged to him by his directions, and whether it is correct, and it is allowa-
ble for the witness to answer that it was copied from the defendant's books
and believed te be correct. Stmwbridge v. Spann 820
66. Where a witness testifies as to work and labor done, and money received,
- for which the plaintiff is seeking to recover, it is competent to inquire wheth-
• er other work had been done, or money received. Such a question, though
•', it directs the attention of the witness that he may state the facts fully, can-
not be said to be hading. lb - 821
67. Where evidence is admitted which is merely.unnecessary,,but cannot pre
judice the^pposite party, or mislead the jury, it furnishes no cause for the
reversal of the judgment. lb. ,. ......... . . ,-.- .... ... ,.•...., 821
68. Where the acts of the agent Jjind the principal, his representations and
declarations respecting the subject matter, will also bind him, if made at
the same time, and constitute part of the res g-wte; but Qwere? Is it compe-
tent to establish the fact of agency by the declarations of the supposed
agent lb 821
69. When a note has been paid and delivered up, it will not be presumed that
the maker afterwards retains it in his possession ; consequently parol evi-
dence is admissible to prove a payment when it becomes a material inqui-
ry, without calling upon the party to whom the writing was delivered to
produce it Mead,usey.ifc.v. Brooks. .840
See Accounts, 1.
Sec Construction, 1.
See Deeds of "Trust, 4. v
See Exceptions, Bill of, 1.
See Execution, Writ of, 6. '
■• See Intehdments and Legal Presumptions, 1, 3, •
See Right of Property, Trial of, 2:
See Partners and Partnership, 4.
See Witness, 2, 3, 5, 6^8^ 10., 11, 12.
EXCEPTIONS, BILL OF. . •
1. Where the bill of exceptions merely states that the defendant offered to
show tlie contents of articles of copartnership by a witness, and that the
plaintiff's objection to the evidence wa^ overruled, the fair inference is,
that the objection wa^ made because it was not shown that tlie articles
could not be adduced ; consequently the evidence was improperly admit-
ted. Anderson v. Snow ^ Co. etal 504
2. The act of December, 1844, declaring that " it shall not be lawful for any.
of the Judges of the Circuit or County Courts," to sign bills of excep-
1008 INDEX.
EXCEPTIONS, BILL OF— continued.
tion after the adjournment of the Court, unless by counsel's consent, in
writing, a longer time, not beyond ten days be given ; is mandatory in its
terms, and intended to provide for an evil which requires that it should be
interpreted according to tlie import of the language employed j consequent-
ly a consent extending tlie time for perfecting the bill must be in writing
ffood^s ,/ldm'r. v. Browii. ". 563
3. Where tlie counsel for both parties agree that an exception taken at. the
trial shall be examined after the adjqjurnment. of the Court, and tlie bill of
.exceptions then sealed and allowed,, this ^s not-a failu];« or refugal of tlie
Judge, within tlie act of 182(3, so as to warrant the Supreme Court to gllow
tlie exceptions. IfooWs Adm\ v. Brown.. , 742
EXECUTION, WRIT OF.
1. The mere right to personal property in the possession of a third person,
which possession originated^ and'is continued, in good faith, is not subject
to seizure "under an attachment or execution ; and where there is no evi-
dence tending to prove mala Jides, a charge to the jury, laying down the
law as above stated, is not erroneous, . because it omits to refer to tliem
t}ie bona fides of the adverse possession. Norton v. SmitJi. .7i3
2. It is no defence to an action by the sheriff, against a purchaser refusing
to go on witli the sheriflf's sale, and the thing purchased was not the pro-
perty of the defendant in execution. That is a matter to be ascertained
by the purchaser previous ta bidding, and cannot be urged against an ac-
tion for, the price. "Quere — ^If relief could not be afforded by the Court
upon a proper application. Lamkin v. Crawford. .'.......... 154
3. If a sheriff has become liable for a failure to collectfiie money upon an
execution, and pays the same to the plaintiff, another execution cannot be
issued on the judgment for the purpose of reimbursing the sheriff. Round-
• tree v. Weaver. 314
4. Where an execution is superseded upon the petition of the defendant, it is
competent to submit a motion to quash it, not only upon the groimds dis-
closed in the petition, but upon any other that will avaiL Ih.. 314
5. Semble, if the defendant approves the payment of an execution against
. him, made by the sheriff, in whose ljp,nds it was placed for collection, by
moving to quash an alias fi. fa. upon the ground of such payment, the she-
riff may maintain an action of assumpsit to reimburse himself, lb.. .314
6. The sheriff, by order of the attorney of tlie plaintiff, returned an execu-
tion by mistake a week too soon, and an alias was not issued, until afler
an execution of a junior judgment creditor, had been issued, and levied
on the property of the defendant. Held, that as it did not appear that the
execution was returned^ or its re-issuance delayed, for the purpose of fa-
. yoxjaigthe defendant in execution, and as a-term had not elapsed, between
INDEX. 1009
EXECUTION, WRIT OF— coNxmufii^ . >fcK?j
the return, and the issuance of the alias, the prior execution had not lost
its lien. Johnson v. WUliams, sheriff, d al 529
7. The sheriff returned a writ of fieri facias, indorsed thus, viz : " Levied
on one tract of land adjoining the lands of Ira Carlton, Mrs. Gray, and
others, containing two hundred acres, more or less :" Held, that the retui-n
■' is sufficiently certain, and the precise location of the land may be shown
■< by extrinsic proof; and as the sheriff was directed to make the money of
the defendant's estate, it will be intended for the purpose of tlie levy, that
the defendant was the proprietor of the land. Randolph v. CarUon.. .606
8. A return of the writ, two days before tlie return tenn of the writ, without
a sufficient excuse, is in law, no return. Caskey, et als. v. JVitcher.. . .622
9. To autliorize a ca. sa. to be issued, the affidavit which the act of 1839 re-
•» 'quires to be made, must be made, although the defendant was held to bail
previous to the passage of that act. O'Brien andDevine,v. Lewis. 666
10. In a contest between execution creditors, it appeared that an original,
■alias, a,iidpluriesfi.fa. had regularly issued upon the defendant's judgment,
■ the last of which was placed in the sheriff's hands, before the original fi.
fa, in favor of the plaintiff issued : Held, tliat no question could arise as to
the dormancy of the defendant's first^. fa. as between him and the plain-
tiff— as his subsequent executions, which were regularly proceeded in,
were entitled to priority of the plaintiff's. Leach v. Willliams, et al.. . 759
11. Where goods levied on are removed by the defendant, or by his permis-
sion or connivance, or are deHvered -to him under a forthcoming bond,
which he forfeits, the plaintiff may have a newj(7. fa. lb.. ... ^ ... . .759
12. The sheriff should levy Si.fi. fa. on a sufficiency of the defendant's pro-
perty, if to be found, to- satisfy it; but the mere omission of the sheriff to
do his duty inthig respect, will not postpone ^n elder to a junior /?. fa. at
the suit of another party* Jb.,^.t:~:\ .v. . . . . ; . . -•i'ii-v.ys'.'tVfii'.v .759
13. The remark of the plaintiff in a.fi.fa. to the Sheriff, thathewoilM do no-
thing that could affect his lien, nor must he (tlie sheriff,) do any tiling that
would cause him to lose it, but if he failed to make the money by a sale of
^ property, he would not rule him, will not make the fi. fa. dormant and in-
operative, if the sheriff failed to proceed thereon, unless tlie plaintiff intend'-
ed to assent to, and approve the delay, with the view of aiding the defend-
ants, or protecting their property. lb i ....... . 759
14. The mere right of property in chattels, unaccompanied with the posses-
sion, cannot be levied on and sold under a. fieri facias, where the posses-
. sion is holden bona fide, adversely to the defendant in execution. Carlos^
use, V. Ansley '. .900
15. At a sale under execution of the principal's property, it i&competent for
the surety to purchase, although the judgment and Jfer^yaaa5 may be
against them jointly. , 16. ....;;........ ^ . . .900
127
1010 INDEX.
EXECUTION, WRIT OF— continued.
See. Amendment, 4,
See Attachment, 10.
See Bank, 2.
See Damages, 3.
See Husband and Wife, 7.
See Judgment and Decree, 4. .
See Right of Property, Trial of, 14.
See Sales, 1, 2, 3, 4.
See Variance, 3.
EXECUTORS AND ADMINISTRATORS.
1. An administrator is chargeable upon his settlement, with the amount of A ,-
note due by him to his intestate, as money in his hands. Dujee, adtk^r v.
BxiclMnan and Wife. 27
2. An administrator may subject liimself to be charged with the notes of
,. ..third persons, as assets, upon proof of neglect or. mismanagement ; and
^y^henthe record recites, that the Court, upon the proof adduced, was-satis-'
^.fied he was chargeable with such notes, it will be considered in this Court*
:that the proof was sufficient, if no objection was made to it in tlie Court
below. lb. ^ 27
3. One who, as administrator, improperly sues oUt an attachment, is liable to
respond in damages personally. He cannot, by his tortious conduct, sub-
4.jjeQt the estate he represents, to an action for damages. Gilmer v.. Wier.
;:.... ........; ....72
4. L. was indebted to F., and in payment, sold him a promissory note, but
without indorsement, on A. This note was collected of M. as un attor-
- >..ney, but the suit thereon was in the name of L., and did not show that any .'.
..iJDne else was interested therein. F. demanded the money of M. after he
'•-received it, and while H., who was about to become L's administrator, was
present, informing the latter that he should claim the money of him, if he
.received it ; to which M. replied that he could not recognize the right of
4 any one to the money but L's administrator. H. administered, received
..>4lie money of M., and returned it in the inventory as a part of L's estate :
. fj^ffeld, that assumpsit for money had and received, would lie against H,, in
^^s individual capacity ; that the notice, and subsequent receipt and.appro-
^ priation of tlie money, being a conversion of it, rendered a further demand
.? Unnecessary. Houston v. Frazier 81
5. The personal representative is entitled to examine and litigate the title of
., any one who claims an interest in the final distribution of the estate. —
'jt:.Watson and Wife v. May 177
6. When the proceedings by an executor or administrator have been in con-
' INDBiJ^ 10.11
^XEGUTOBS ANP ADMINISTRATORS— coNTimjEB. V*
formity to the rnles proscribed for, his action, tliere can be no review of the
facts upon wliich tlie judgment of the Court is founded, although persons
- having an adverse interest were not apprised of the final settlement in-
- tended by the administrator. On the other hand, the administrator caimot
^prevent a re-exaraination, when the proceedings are erroneous, because
; those -actually interested have not appeared. Ih. 177
7. A person appointed an administrator in another State, may maintain an ac-
tion as provided by statute, if no personal representative shall have been
appointed and qualified here ; and where a debtor of the intestate has been
appointed administrator in this State, he may plead his appointment and
qunlification in bar of an action by the foreign administrator brought for
. the recovery of the debt. Kennedy v. Kennedy's Adm^r. 391
8k,A suit commenced against, one partner of a firm, will survive against his
. personal representatives, and may be revived against them hy scL fa. S.
■:■ ^E. Travis v. TartL , 574
9. An administrator with an interest may purchase at a sale made of the in-
testate's estate, and if he uses the assets of the estate in making sucli pur-
chase, the distributees may elect to consider the, appropriation a conver-
• «ion, or may treat the administrator a^ a trustee ; this being the law, he
cannot make a gift of the property so as to defeat the trust. Julian^ et al. v.
Reynolds, etal .'. 680
10. Although administration may be granted in another State upon the estate
of one who there dies intestate, if slaves belonging to the estate are brought
to this State hy the administrator, a Court of Chancery may here entertain
- a bill by a distributee to enforce a distribution. lb.. 680
11. Although the writ, and declaration, may describe the defendant as an ex-
ecutor, yet if the declaration shows that the action cannot be maintained
against him, in his representative capacity, it wiil be considered as a de-
scription merely of the person, and a judgment will be rendered against
him in his individual cliaracter. Johnson v. Gaines 791
12. In such a case, where the administratrix was the purchaser, tlie heirs may
proceed to enforce their lien against a. second purchaser with notice, and
cannot be rfequireid to resort in t^ie first instaiicfe to the sureties of tile ad-
ministratrix on'her official bond, she having paid no part of the purchase
money, and being insolvent. Strange, et al. v. Keenan, et al., . . . . , , ,816
13. Notes made by a trading'company, and for which the plaintiff's intestate
might have been liable as a partner, are not admissible to the jury under
the pleas of non-assumpsit, want of, or failure of consideration. Mc Gehee
V. Powell. , .827
14. Where a judgment is obtained against one as the executor of an estate
after the resignation of the trust, the judgment lias no effect upon a suc-
ceeding administrator, and therefore an execution may lawfully issue to
1012 INIXE^.
EXECUTORS- AND ADiVIINISTRATORS— continued.
the sheriff, although he is the SHCceeding representative of the same estate.
Wilson V. Aidd. 842
15. When an administrator resigns pending a suit against him, the plaintiff is
not compelled to make the succeeding admiilistrator a party in his stead,
though he has tlie privilege to do so ; but may proceed v-ith the suit, 4n
order to charge the resigning administrator and his .snreties, udless the
resigning administrator also shoitvs a due administration, or a transfer of all
the assets to the succeeding administrator. Skinner v. Frierson &,- 0-dip,.915
16 When the resignation is suggested -with the consent of the plaintiff, he
may make the succeeding administrator a party, butif the suggestion is not
assented to, the administrator is put to his plea, which m.nst show not only
the resignation, but the other matters essential to a full discharge, /6.915
17. After a resignation, tlie administrator no longer represents the estate, and
a judgment afterwards recoVered,^ will have no effect to charge a succeed-
ing administrator, Ti^.- ■. . .-. . ..,.,..... .', f)\^
Sec Assumpsit, Action of, 1.
See Judgment and Decree. ;">,
FEME CO\nERT.
1 . Where goods are furnished to a married woman, on the faith of her sepa-
rate estate, or she executes a note as the surety of her husband, there is
such a moral obligation to pay the debt, as will support an action at law on
a promise to pay after the coverture .has ceased. Vance v. Wells &,' Co. 399
% Where a married womaL, having a separate estate, executes a note in her
ctvm name, it is prima fade evidence that tlie goods were fiirnished,- or cre-
dit given, on the faith-of her promise, lb 399
PENCE.
1. A partition fence, between adjoining proprietors, is, under the statute, the
joint property of both, and each is bound to keep the entire fence in good
repair. One cannot therefore maintain an action of trespass against the
other, for Em injury consequent upon an insufficint feijce. Walker v. Wa-
irous. .....,.,.. .,..*..., 493
2. If a partition fence is out of repair, and one of the proprietors wilj notaid
in repairing it, the other may cause it to be done, and recover the value
^ Deforethe appropriate tribunal, although viewers have not been appointed
by the Couniy Court lb 493
3. If adjoining proprietors enter into an agreement, one to keep up one-half
the fence, and tlie otlier tlie other half, an action of trespass cannot be
maintained by one, against tlie other, for an injury caused by an insuffi-
, *?J^?P*^ fence, but the ,remQ43f, is fer a breac^ p/,the contract lb 493
INDEX. iai8
FERRIES AN-D BRIDGESi iVrtt.s«?<hi.^
•^ See Corners, 1.
FORCIBLE ENTRY AND DETAINER, &c. .
1. In the complaint before a justice of the peace, it was alledged, that the
, plaintiff " has the peaceable possession of the north-east quarter of section
five, township eight, range eleven, east, in the Coosa land district, in the
. ;• west part of said quarter, being and lying in the State and county aforesaid,
dwelling house and other buildings, and fifty ^res-of land cleared, more
i^ or less,'' and after alledging tlie forcible- entry and detainer of the premi-
.. ' ses, the complaint proceeds thus, viz : " detaining and holding the same by
•,,.such words, circumstances, or acting, as had a material tendency to excite
. fear or apprehension of danger." Held — 1. That the description of the ■
v« premises-was sufficiently specific. 2. That tlie ajlegaticto of force was as
direct and full as the statute requires. Huffdker v. Boring, 87
2, The testimony of a witness, in a proceeding for a forcible entry and de-
■ ' • tainer, that he " he had fodder on tlie premises by plaintiff's leave, and
plaintiff told witness, that he could have the land, or part of it^ during the
year," &c., is admissible as to tlie first branch, viz : that the witness had
..- (fodder on the premises by plaintiff's permission : because this tends to show
an actual possession , but inadmissible as to the second, because it amounts
to nothing more than a mere assertion of a right by the plaintiff. Collieji,
- C. J., thought the testimony inadmissible, in toto. lb 88
See Amendment, 8. -. ' '
See Evidence, 13.
Sec Judgment and Decree, 2.
Sec Verdict, 1.
FRAUD. •
1. A deed of trust operative as a security for the payment of money, is not
fraudulent per se, on account of the reservation of uses to the grantor.
Graham v, Lockhart .9
2. With a view of showing that a sale of property on long credits was fraud-
ulent, by reason ot the inadequacy of the price agreedto be paid, it is per-
' missible to prove, that the price stipulated is less than the property in
question would have commanded, on the time given. Borland v. Mayo. 105
3. With the view of showing the transaction to be fraudulent, it is compe-
tent to show that tlie vendee, who purchases from his son-in-law all his es-
tate (which is a large one,) even on time, was himself greatly indebted at
the time of the purchase. Ih 105
4. If a debtor in failing circumstances makes a transfer of his property, which
is intended, both by tlie vendor and vendee to prevent what they consider
a sacrifice by sale under execution, and thus enable the vendor, after-
1014 INPjEX.
FRAUD CONTINUED. . ' ■ ;
wards to give a preference to his own proper creditors oyer tliose to whom
he was liable as a surety ; such a transaction js a fraud upon the creditors
who are hindered or delayed in the collection of tlieir debts, lb 105
5. If a fatlier-in-law purchase from his son-in-law, who is in failing circum-
stances, all his estate, consisting of lands, slaves, furniture, &c., tlie trans-
action will be looked on witli suspicion, and if there are otlier circumstan-
ces making its fairness questionable, tlien, altogether, they should be con-
sidered, by the jury, as adverse to the vendee, upon an issue of fraud, vel
non. lb.. - , JOG
6. Inadequacy of price, upon the sale of property, is a badge of fraud, where
the vendor was greatly indebted ; though in itself it may not be sufficient
to avoid the sale, unless the disparity between tlie true valufe and tlie price
paid, or agreed to be paid, was so great as to strike the understanding
with the conviction that the transaction was not bona fide, lb IOC
7. \i mala fides is not attributable to the vendee, but he has acted with fair-
nessjhis purchase cannot be pronouiiG6d-void, at the instance of the vendor's
creditors, merely because its tendency was to defeat or delay them. lb. lOG
8. When the creditors of a vendor levy on property claimed by another, by
a previous purchase and delivery, if any suspicion is cast upon tlie fairness
of the sale, the jury may infer fraud, unless an adequate consideration is
proved. Seamans, et al. v. TVJdte ^ 656
9. A creditor who alledges fraud in the conveyance of a debtor, by a mort-
gage or deed of trust, cannot be prevented from trying this question in a
Court of law, before a jury. Marriott Sf Hardesty etal. v. Givens 694
10. When the claimant asserts an absolute title to slaves levied on as tlie
property of a debtor, and the proof shows that a portion of these slaves
were purchased with money or funds ofllie debtor, and that the bills of sale
were taken in the name of the complainant, the possession remaining witli
' ^e debtor, this is evidence of fraud. lb ; 695
11. The assertion by a cestvi que trust against creditors, that tlie grantor in
a trust deed is indebted to him in a larger sum thaiiJie is enabled to prove,
is evidence of fraud, unless tlie suspicion of unfairness is removed by (Evi-
dence, lb ,- 6t>5
See Bankrupt, 9.
See Chancery, 5.
See Debtor and Creditor, 5, 7.
See Deeds of Trust, 4.
See Estoppel, 1.
See Evidence, 2.
See Gift, 2.
Sec Indorser and Indorsee. 1 ,
INDEX. 1015*
FRAUDS, STATUTE OF.
1. Although a contract for the purchase of lagd, at a sheriff 's sale, cannot be.
enforced, if not in writing,.signed by tlje party, yet it is unnecessary to aver
* *v this fact in thiB declaration. Bdl v. Owen 312
2. Where a father conveys personal ^property to third persons, in trust for a
married daughter, and delivers the property accordingly, neither tlie 2d
--i« section of the statute of frauds, or the act of 1823, "to prevent frauduleilt
'■conveyances," make registration necessary to its operation against the cre-
,. ditors of the husband. O^J\/eU,'Michaux &f Thomas v. Teague ^ Teugue, 345
3. When a contract in reference to the sale of land is signed by the vendor
only, and the purchaser afterwards transfers the written contract to anoth-
•v^^er, by indorsement, investing that person with all his interest and claim,
.-the signature of the purchaser withdraws the contract from the influence
'^of the statute of frauds. J^torrrmn v. Molett. 54G
4. S, having a judgment against A, verbally agreed with him that he would
bid off tlie land of A, subject to an agreement to be afterwards entered in-
lo between them. Shortly afterwards they met, and ascertained the amount
- 1 due from A to S, including the note here sued upon, and it was then agreed
• in writing, that A should have two years to pay the debt, by four equal
instalments, and that "upon the payment of the debt, S would convey the
;' 'land to A. A failed to pay the instalments, and by consent of A, S sold
... the land — Held that the verbal agreement was void undier the statute of
frauds, and the written agreement void for want of consideration. That
it was a mere gratuitous promise, which S might have disregarded, and
^ broi\ghtsuit immediately for the repovery^of the debt, and tlierefore did
not exonerate the surety. Jlgee v. Steels. . .^. ^ , 948
See Principal and Surety, 2.
GAMING.
1. A note, or other security, given in consideration of money won at gaming,
is void in the hands of an innocent holder, for a valuable consideration,
unless he was induced to take it, by the representations of the maker,^ —
Manning v. Manning, el al , .: .*..., 138
2. The payee of a gaming note, who has transferred it to another, isa com-
petent witness for the maker, and may be compelled to testify as to the
consideration of the note, upon a bill in Chancery, filed by the maker
., , against the indorsee. lb 138
GARNISHMENT AND GARNISHEE.
1. A garnishment, to obtain satisfaction of a judgment, must issue out of tlie
Court in which the judgment was rendered ; tlierefore, a garnishment can
not issue out of the County Court, when the judgment was rendered in-the
Orphans' Court. Hopper, gaiiiishee, v. Todd, ..*........ * . 12l
1016 INDEX.
GARNISHMENT AND GARNISHEE— cowTmuED.
2. One who is summoned as^ transferee ofthetlebt admitted to be due by the
garnishee answering in the suit, 'will not be permitted to take advantage
of errors in tlie proceedings, either"^ against J the original defendant or
against tlie garnishee. Blacknian v. Sinith 203
3. It is of no unportance, that two or more persons are summoned by the same
notice to appear and contest the plaintiff 's right to condemn a demand
which tlie garnishee suggests has been transferred to another, or toothers;
but if the objection was valid, it should be raised before submitting to go
to trial. lb 203
4. After a judgment against a transferee, an issue will be presumed, if one
Avas necessary, lb. , .' 203
5. When flie transferee contests the plaintiff's right to condemn the debt, he
is subject to costs, if tlie plaintiff prevails, it, ... .203
C. A proceeding by garnishment is the institution of a suit by the attaching*
-^-creditor, against the debtor of his debtor, and is governed by the general
^ rules applicable to' other suits adapted to the relative position of tlie par-
ties. 5. ^' E. Travis v. Tartt.. .'. 574'
7. When one of a firm is gamisheed, tlie creditor must be considered as elect-
ing to proceed against him solely, and on hia answer, admitting the in-
debtedness of the firm, is entitled to have judgment against him. lb. 574
8. It is in-egular to permit the defendant whose debtor is summoned as a
'garnishee, to contest the garnishee's answer, unless it is done at the term
"when the answer is filed, or unless an order is then made for that purpose.
iJErravts v. Cooper. 81 1
St*The proper course of practice in such cases is, for the defendant to deny
the correctness of the answer by oath, and to file a suggestion of tlie na-
ture of the garnishee's indebtedness, as in a declaration, to which the gar-
nishee may plead. The judgment, if against the garnishee, is one of con-
. > -demnation to pay the plaintiff's demand, lb. .-.......': 811
GIFT.
1. The declarations of a fatlier, made to his son-in-law, when he delivered
to him several slaves, shortly after his marriage, that they were intended
for the use of the donor's daughter, and were nof given absolutely as an
advancement for her, are admissible evidence, where a deed was subse-
quently executed for the purpose of canying out the intention. O'JVeil,
Michaux ^- Thomas v. Teague and Teagne 345
2. If one purchase slaves at a sale under n. fieri facias with the money of the
• defendant, and then give them to the children of -the latter, the donees can-
,' not recover them of a person who afterwards purchases at a sale under a
~ deed jof trust subsequently executed by the defendant; if the sale under
^■•the deed be irregular, the purchaser may defend himself upon the ground
INDEX. 101^;
GIFT— CONTINUED. ^/4^»^.or,>^v,^^;ai«fc»C^)a m> ^r^A^tamTi^^^A^U
of the trustee's right to the possession. McBiyde and Wife, etal,tu. Thomp.
§on. 650
&r See Husband and Wife, 7.
GRANTS BY ACTS OF CONGRESS.
1. A concession for a tract of land south of latitude of thirty-one, west of the
Perdido, and east of Pearl river, was made in 1806, and confirmed by ari
'^'^ct of Congress passed in 1832, which contained a proviso, declaring that
'■''the act should " not be held to interfere with any part of said tract which
*^ may have been disposed of by the United States previous to its passage :"
^'- And providing further, that it "shall be held to be no more than a relin-
• ' quishment of whatever title the United States may now have to such tract
'-"of land:" Held,\ha.i if the United States had no interest in the premises
' when the act was passed, in consequence of a previous disposition or other
cause, it was wholly inoperative, either to grant or confirm a title ; that as ■
' ' -lie land was situated below high- water when Alabama was admitted into
the Union, if the federal government was ever entitled to the right of soil,
its title was disposed of previous to 1832. Doe ex dem. Kennely v. Bebee, 909
2. The lessors of tlie plaintiff claimed under a Spanish permit, dated 11th
December, 1809, for an unknown quantity of land, situate in Mobile, winch
the commission for the examination of land titles reported was forfeited,
under tlie Spanish law, for want of inhabitation and cultivation. The ti-
tle under which the defendant claimed commenced in 1803, and was con-
firmed by an act of Congress of 1822, and embraced a lot for one hundred and
forty-nine 4-12 feet on Water street^ known under the -Spanish government
as a water lot, and situated between Church and North boundary streets ;
immediately front of this lot, and between Water street and the channel of
tlie river, improvements were made prior to May, 1824, by those under
whom the defendants deduced title ; In May,. 1824, an act of Congress was
passed, by which the United States relinquished their right to the lots of
ground, east of Water street, and between Church and North Boundary
streets, then known as water lots, and situated between the channel of the
river, and the front of the lots, known under the Spanish goverimient as
water lots in Mobile, whereon improvements have been made, and vested
the same in the proprietors of the latter lots ; except in cases where the
proprietor had alienated his right to the then water lot, or the Spanish gov-
ernment made a new grant, or order of survey for the same, while they
had the power to grant the same ; in such case the right of the United
States was veste^d in the person to whom such alienation, grant, or order o£
survey was made, or his legal representatives : Provided, that the act shall
not affect the claim of any person, &c. In 1836, the claim (rfthe plaintiff
128
1018 INDEX.
GRANTS BY ACT OF CONGRESS— coNrmuED. ^
^;*ij was confirmed by an act of Congress, which declares that it shall only op-
' erate as a relinquishment of the right of the United States, without in any
manner affecting the claims of third persons: Held, that the plaintiffs had
no right to the premises claimed by tliem, which could in any manner im-
pair the confirmation of 1822, and the subsequent enactment of 1824 ; that
the former act invested the defendants with all the title of the United
> States to the lot west of Water street, and the latter, in virtue of improve
.' ments made on the water lot, relinquished the same to the proprietor of the
. ■ western lot : consequently the title to the lots claimed by the defendants*
both east and west of Water street, having passed out of tlie United States
previous to 1836, and vested in individuals, the act passed in that year was
inoperative as against the defendants. Doe ex dem. PoUard's Heirs v. Grdt,
etcd 930
3. Where the plaintiff claimed under a Spanish permit, dated in 1809,, which
had been unfavorably reported on, a part of the shore of Mobile bay which
had not been reclaimed from the water when Alabama was admitted into
the Union, in 1819 ; an act of Congress passed subsequently to tlie latter
period, relinquishing to tlie plaintiff so much of tlie shore as is embraced by
the permit, provided the rights of other persons are not thereby affected, is
inoperative, lb 931
GUARDIAN AND WARD.
1. The proceedings in a testamentary cause being reversed back to an ac-
count of distributable assets, in a contest between distributees and execu-
tors, it was remajpded, that a guardian should be appointed to an infant
distributee, with leave to the guardian to investigate the accounts ; Held,
that tlie privilege did not extend to the. executor, he being named as the
testamentary guardian, and after the return of the suit to tlie Court below,
qualifying as such. Sankey's Ex'rs v. Sankey's Distnbutees 601
2. Previous to the act of 1845, the Orphans' Court was not invested with the
jurisdiction to compel the executor or administrator of a guardian to appear
and settle the accounts of the deceased guardian. Snedicor v Carries. 655
3. Where a guardian voluntarily files his accounts for final settlement, with
the Orphans' Court, he cannot object on error, that the publication required
by the statute was not made — the notice contemplated by the act being
intended for the benefit of the ward, or others interested in the settlement-
TreadweU, Guardian, v. Burden, AdirCr 660
4. All decrees made by the Orphans' Court, upon the final settlement of the
accounts of the guardifins of idiots, lunatics, and others, have the force
and effect of judgments at law, and execution may issue for the amount
ascertained to be due, against the guardian: And when an execution is-
sued on sifch decree, shall be returned by the sheriff " not found," gene-
INDJBX.^ 10i9
GUARDIAN AND WARD— continued. /' ti/j«. r
rally, or as to a part thereof, execution may forthwith issue against the
sureties of the guardian, lb 660
5. No action can be maintained against a guardian, or his sureties, on his of-
ficial bond, whilst the relation of guardian and ward subsists. EUandt
•. Judge, ^'c. Chandler 781
6. The removal of a guardian beyond the limits of the State, is a sufficient rea-
son for severing tlie relation, and revoking the appointment. Tb 781
7. The guardian of a lunatic, under our statute, has the same powers, and is
subjject to the same restrictions, as the guardian of an infant. Mexander
V. Alexander. 796
8. A guardian cannot charge his ward's estate with any counsel fees he may
choose to pay ; it must appear that the services were required, and the
; compensation such as is usual, and customary for such services. Where
no proof is made, it is competent for the chancellor to determine the value
of counsel fees in his own Court, and this Court will not revise his deci-
sion. Ih 796
9. A guardian cannot charge a commission for the custody and safe keeping
of either money, or choses in action. Ih 796
10. In transporting the lunatic from place to place, it is the duty of _^the guar-
dian to select the cheapest mode consistent with tlie comfort and safety of
the lunatic ; if the public conveyance is suitable, and cheaper than a pri-
vate one, it is his duty to take it lb 797
11. An account receipted for the board of the lunatic, is not a sufficient vouch-
er, without proving, that the services were rendeted, the money paid, and
the charge reasonable. lb. .... 797
12. Acts done by the guardian, without authority, on account of the ward,
will not bind the ward, unless beneficial to him. Therefore, when the
guardian of a lunatic, undertook to commence Ihe business of planting on
behalf of the lunatic, purchasing mules, provisions, &c., and the enterprize
proved unfortunate, he was held responsible for the hire of the slaves. It
was the duty of the guardian, if he considered it more beneficial to the lu-
natic to work the slaves, than to hire them out, to apply to the proper tri-
bunal for authority so to act. Ih 797
13. Where the guardian made an exchange of two of the slaves of the luna-
tic's estate, those interested in the estate, had the right to disaffirm the con-
tract, and charge him with the value of the slaves so exchanged. Tb. 797
See Orphans' Court, 13.
HUSBAND AND WIFE.
1. When, by the laws of an Indian tribe, the husband takes no part of his
wife's property, it is a necessary consequence, that the wife retains theca-
W>^ INDEX,
HUSBAND AND WIFE— coNTmuEo. ^
' pacity to contract, and it is likely, means were provided by their laws for
the enforcement. But if such was the case, it is not perceived how the
Avife could, in our Courts of law, be sued alone, so long as the marriage
continued,^s the case presented would be that of a wife with a separate
•estate. Tfall v. Williamson , 48
2. When, by the law of an Indian tribe, the husband has the capacity to dis-
solve tlic marriage at pleasure, and his abandonment of his wife, he re-
maining within the jurisdiction of his tribe, is evidence that he has done
so, the effedt of this dissolution of the marriage is the same as if directed
by a lawful decree. Iht . . .■ 48
3. When, by the teims of a written contr'act, money is to be paid to one, as
the agent of a. feme covert, the husband is not a competent witness to sustain
the contract in a suit by the agent to enforce payment. TVier v. Buford. 134
4. When a Jhm covert app^nts aaeti^ her agent, to hire slaves, which in
point of fact belong to her children, and a hiring is actually made, the per-
. son hiring is authorized to treat with theyeme coveH as tlie principal in the
T. contract, until he has notice that the contract enures to the benefit of oth-
ers ; and her acts and declarations with reference to the slaves hired, will af-
fect the contract in the same manner as if she had a separate estate in the
slaves, or was acting in the premises by her husband's consent. lb. 134
5. Where the husband conveys, by way of release, to the wife, for her sole use
,and benefit, all the right, title and interest ho had acquired, by virtue of
their marriage, to certain stock in an incorporated company, as also liie
,^. right to sue the company for permitting the unlawful transfer thereof, such
; a conveyance will be. inoperative at law; and the rights of the husband at-
\ tempted to be released, will, upon his being declared to be a bankrupt,
vest in the assignee in bankruptcy. Butler and Wife v. Mer. Ins. Co. of
CUy ofMohUe . 146
iS. A deed purporting to convey certain slaves from a father to third persons
in trust for the " benefit" of a daughter, then recently married, provided
that the daughter, together witli her husband, were to retain the possession
. of the slaves, with their increase, during coverture, and the natural life of
the daughter ; should she die without issue, the slaves were to revert to the
donor, or his lav/ful heirs. Thus, as the deed declares, conveying the legal
■ interest to the trustees intrust, and the possessory interest to the daughter and
"the heirs of her body forever, (if any,) if none, according to the terms be-
fore set forth :" Held, tliat the dised conferred upon the husband and wife
the possession of the slaves during coverture, and the life of the wife ; that
upon the deatli of the wife, the possessory interest of the heirs of her body
- commences, and the husband being in possession, the slaves were subjec^
to seizure and sale under an execution against his estate. O'JVeU, Mi-
chnux Sf Thomas v. Teagve and Teague 345
INDEX. 1021
HUSBAND AND WIFE— contifued. v4»-i«v^>:>->^'n'tiA,!i^if<Bt>^l
7. The Orphans' Court must decree to husband and wife the distributive
share of the wife, unless it is shown that she has a separate estate in it.
., A Court of Chancery can alone compel him to make a settlement upon
her. The Distributees of Mitchell v. Mitchell, Adm^r 415
8. A conveyance by the husband, to his wife, of a life estate in certain pro-
perty, which conveys to her a present, vested interest, and is not testa-
mentary in its character, will not bar the widow of her dower. lb. 415
9. Under the 4th rule of Chancery practice, it is not necessary to serve a sub-
poena upon a married woman, unles she has a separate estate. It will be
sufficient if served upon her husband. Hollinger Sf ivife v. B. B. Mobile, 605
10. The rendition of a decree by the Orphans' Court, for the distributive share
of the wife, in the name of the husband alone, it is a clerical misprision,
: and may be amended; it is not an error of which he can complain. Parks
V, Stonum. . , . 752
11. A wife may join in a suit with her husband, upon a promise made to her
whilst sole, or when she is the meritorious cause of action, and an express
• promise is made to her after marriage, because the action in these cases
'; will survive to her. When the promise is made to her, it is proof that she
is the meritorious cause. Morris v. Booth and Wife, 907
12. When husband and wife join in action, upon a promise made to the wife,
. 1 neither a debt due by the wife after marriage, a debt due by the husband
•' alone, or a debt due by husband and wife jointly, can be pleaded as a set
off. lb 907
INDIAN TRIBES.
.-'See Conflict of Lav\'s, 1,2.
' See Husband and Wife, 1,2
Sec Marriage, 1.
INDORSEMENT. ^ ^
1. The contract evidenced by a blank indorsement, is ascertained by the
law, and cannot be modified or changed by parol evidence. Tankersly v.
J. Sf A. Graliam, 247
2. It is unnecessary to fill up a blanlc indorsement, even when the description
in the declaration is that the note was indorsed to the plaintiffs. Biggs v.
Andrews ^ Co 628
3. J. & S. Mailin transferred this paper to a third person, and having after-
wards re-possessed themselves of it, might erase the indorsement, and
sue in their own names. Bogan v. Martins 808
4. Commercial paper, received as an indemnity for existing liabilities, isnc^
transferred in the usual course of trade between merchants, so as to ex-
1023 INDEX.
INDORSEMENT— CONTINUED. , Cii*yd|^.\
empt it from a latent equity existing between tlie original parties. An-
drews ^ Bros. v.McCoy, 920
5. To enable the holder to rely on the rules of the law merchant, as to the
transfer of negotiable securities, the legal title to the paper must be vest-
ed in him by an indorsement. lb 920
See Amendment, 5.
See Consideration, 2.
INDORSER AND INDORSEE.
1. M. became the indorser for L. of certain bills of exchange, upon an agree-
ment that tliey should be used in the purchase of the stock of a particular
bank, in which both were equally interested, and both to be equally bound
for the payment of the bills. L., pursuant to an arrangement with H.,
transferred the biUs to C, in payment of a debt due by H. to C.,the latter
being ignorant of the agreement between M. and L., relating to the in-
dorsement of the bills: Held, first, that C. could recover of M, the indors-
er, though L., in the transfer to C. had violated the contract by which the
indorsements were made. Second, that if L. was the dupe of H. in the
contract by which the bills were transferred to C, the fraud could not be
visited on C, who was ignorant of it, and did not participate in it. Clapp,
et alv. Mock, etal 122
2. In an action by a prior against a subsequent indorser, who has been com-
pelled to pay the note, a declaration which alledges the making of the note,
its indorsement, protest for non-payment, and notice to the defendant, and
then deduces his liability, if sustained by proof, entitles the plaintiff to
recover ; especially if a count is added for money paid, laid out and ex-
pended. Spence v. Barclay 581
3. Where a note is indorsed to one person, with the assent of all interested,
in payment of debts due the indorsee and several others, the indorsee may
maintain an action thereon in his own name, and no defence can be inter-
posed to avoid its payment, which would not avail if the note had been in-
dorsed and the suit brought in the names of all who were entitled to re-
ceive portions of the sum collected. Pond, et al. v. Lockwood, et al. 669
4. The discharge by the holder of a note, of slaves of the maker sufficient to
pay the debt, seized under an attachment at his suit, does not operate in law
or in equity to relieve the indorser. Caller v. Vivian, etal. 903
See Contribution, 3.
See Evidence, 48.
INDEX. M^
INFANCY. \rr^ur)mm jt
1. A bill single made by an infant, although the consideration be something
, else than necessaries, is voidable merely, and may be ratified by him af- '
..(i ter he attains his majority, so as to entitle the payee to maintain an action
thereon. Font v. Cathcart 725
2. Where the plaintiff replies to the plea of infancy, that the defendant pro
mised to pay the debt in question after he attained his majority, the fact of
. infancy is admitted, and it devolves upon the plaintiff to prove the subse-
quent promise. lb 725
3. Where infants are cited and do not appear, it is not error to render a de-
cree without the appointment of a guardian ad litem. Parks v. Stonum, 752
INSANITY.
1. An opinion of a witness, that a testator was insane at the time of making
his will, is not competent testimony, he admitting at the same time, that
he knew no fact or circumstance on which his opinion Avas founded. Bow-
ling V. Botvling, ExV 538
INSOLVENT DEBTOR. *' - . '^^^
1. When a debtor has been arrested, and has given a bond to keep the
prison bounds, he is not discharged by makmg affidavit that the par-
ticular ground upon which he was arrested is untrue. Under the act
to abolish imprisonment for debt, he can be discharged by reason of this
affidavit only, only when in custody of the arresting* officer. Morrow and
JVelson V. Weaver v. Frow 288
2. The act to abolish imprisonment for debt, is to be construed in connection
with the previous legislation on the same subject, and under it, when the
prisoner seeks a discharge by a surrender of his property, &c,, or by swear-
ing that he has none, the application must be made to a Judge, or two jus-
tices of the peace, as required by the previous acts: but if the schedule,
&c. be contradicted by the creditor, one justice will constitute a Court
competent for that purpose, uuder the act of 1839. lb 288
3. A plea in avoidance of a bond for the prison bounds, on the ground of a
discharge, under the statutes relating to the discharge of debtors, is bad if
it does not aver that notice was given to the creditor, and which does not
show a discharge by a Judge, or two justices of the peace, as provided
by the act of 1821. lb , 288
4. If one in the limits under a prison bounds bond, voluntarily surrenders
himself in the common jail of the county, and to the custody of the sheriff,
in the discharge of his sureties, it is a discharge of the bond^ although
done before the ewpiration of sixty days. lb 288
5. But if such surrender is colorable merely, and not intended to be for the
purpose of discharging the bond, it does not have that effect. The inten-
tion of going within the jail, and the surrender to the sheriff, is a matter
for the determination of the jury. lb 288
1024 INDEX.
♦ INTENDMENTS AND LEGAL PRESUMPTIONS.
1. When an act, which is continuous in its nature, is proved to exist, its con-
tinuance may be presumed, until the contrary is shown. Gamer v. Green
Sf Elliott 9G
2. \Yhere it appears that the defendant and plaintiff pleaded and replied "in
short by consent," it will be intended that the plea and replication con-
tain every material allegation that the law requires, to make them com-
plete ; but if the pleading could not be supported, if drawn out in fonn, a
demurrer should be sustained, if so interposed as to reach the defect. Har~
groves V. Cloud. ■> 173
3. The plaintiff repaired the defendant's gin, under an agreement that he
should have all that he could obtain for it above fifty dollars, to compen-
sate him for repairs ; he kept it in his possession several years, endeavor-
ed to sell it, but was unable to find a purchaser: the defendant addressed
a note to the plaintiff, demanding the gin or fifty dollars, which concluded
thus : " if you do not give one or the other, we will have to settle the mat-
ter some other way." The plaintiff, upon the receipt of this note, permit-
ted the defendant to take the gin into his possession : ^eld, that tlie infer-
ence from tlie evidence was, that the plaintiff voluntarily, assented to the
defendant's demand, and could not recover for the repairs ; unless, per-
haps it could be shown tliat the defendant had sold the gin for more than
fifly dollars, or that the repairs made it worth more tlian that sum, and in-
stead of selling he had used it Hayden v. Boyd. 323
4. A will by Avliich ;i testator charged his children with the debts they owed
him as a part of their portion, except one child, whose debts were not men-
tioned, does not raise the presumption that such debts were released, the '
evidences thereof being retained by him uncancelled. Sorrell v. Craig. 566
5. Where tlie maker of notes had received them several years previously,
and delivered the notes of tliird persons in payment of tliem, it may be
presumed that they were destroyed or otherwise cancelled, so as to let in
secondary evidence of their contents, without a notice to produce tliem, in
a controversy in i;espect to the substituted paper. Pond, et al. v. Lock-
wood, el al 669
6. This Couil will judicially notice when the terms of the Courts are held.
Anderson v. John and Thomas Diekson 73.3
7. Wliere a party against whom a judgment is sought to be enforced, al-
ledged in a bill for an injunction, that he was not served with process, and
did not make tlie note on which it was founded, tlie deposition of a per-
son of tMte same name, declaring tliat he made a note of the same amount
itnd datp in which the complainant did not unite, will be sufficient to sus-
tain the latter branch of the allegation, if uncontradicted. Gtvens, et al. v.
Tidmore .746
8. Where it appears from the process at law, thj^t it was served on an indi-
INDEX. . 1041
PLEADING— C ONTINUED.
debt ; nor is it necessary his apprehension of these facts, or either of them,
should be set out in tlie notice. Shehan v. Hampton 942
29. The discharge of a surety, by means of the statutory notice, must be
pleaded specially, lb 943
See Error, Writ of, 23.
See Frauds, Statute of, 1.
See Insolvent Debtor, 3.
PRACTICE AT LAW.
1. Where a joint obligation would survive upon the death of one of the obligors,
against his heirs and personal representatives, a judgment founded on it, '
will also survive against them, upon the death of one of the parties to the
judgment. Martin, adiri^r. v. Hill. . : 43
2. When a party to a suit in this Court dies, pending the suit, and it is abat-
ed as to hun, it becomes several as to him,' and is not merged jn the
judgmeat of this Court, against the other parties to the judgment, and
their sureties. lb. ... : 43
3. If " the declaration contains a substantial cause of action, and a material
issue be tried thereon," tlie act of 1824 declares, that the cause will not
be reversed, arrested, or otherwise set aside, after verdict, or judgment,"
for a defect in " the pleadings not previously objected to ;" consequently,
an appellate Court will r}ot regard the defects of a declaration, if a demur-
rer has not been directly interposed, or the attention of the primary Court
called to it upon a demurrer to some other part of the pleadings ; and in
the latter case, the record should show such to have been the fact. Kent
V. Lono; 44
4. After the plaintiff has introduced his evidence, the defendant his, and the
plaintiff rejoined, it is then a matter of discretion whether the Court will
allow the defendant to adduce further testimony. Borland v. Mayo. . . 105
5. In practice, no formal judgment ofrespondeas ouster is entered upon the
sustaining a demurrer to a plea in abatement. The sustaining of the de-
murrer is entered on record, and if the defendant wishes to plead over, he
is permitted to do it. Massey v. Walker. 167
6. The Court in which a suit is pending, may, in its discretion, set aside an
interlocutory judgment, and allow the defendant to make defence, at least,
if he interposes a general demurrer, or plea to tlie merits. Bagby, Gov.
fyc. V. Chandter &f Chandler. 230
7. Upon certiorari, judgment may be entered against a party to the original
judgment, who did not join in the bond to obtain the writ of certiorari. —
Dobaon, et al. v. Dickson, use, S,'c 252
8. The Circuit Court, independent of express legislation, has the power to
substitute a judgment, roll, or entry, when the original record is lost, and
" the substituted matter becomes a record of equal validity with the original.
McLendon v. Jones 21>8
131
1042 INDEX.
PRACTICE AT LAW— continued.
9. The manner of correcting the loss, is to show, by affidavits, what the re-
Cord contained, the loss of which is sought to be supplied. The substitu-
tion can only be made after a personal notice of the intention to move the
Court, and the notice must be sufficiently explicit to advise the opposite
party of what is intended, as well as to enable him to controvert the affida-
vits submitted, lb 298
10. A party whose acceptance of service is not spread on the record, in the
first instance, may cure the defect, by admitting the fact, at a subsequent
term, although there are other parties to the suit. fVoodward, et al. v.
Clegge 317
11. A dismissal of one of the parties to a motion for judgment, is not a dis-
continuance of the entire motion, though the party dismissed was notified,
and has appeared, and pleaded. Beard v. Branch Bank at Mobile 344
12. Where several replications are made to one plea, the Court, on motion,
will strike out all the replications but one, and put the plaintiff to his elec-
tion, which he will retain. Or the objection may be made by a demurrer
to all the replications^ but not by a separate demurrer to each. Vance v.
Wdls Sf Co 399
13. When a suit by attachment is improperly commenced in the name of the
party to whom a note not negotiable is transferred without indorsement,
instead of using the name of the person having the legal interest, and the
cause is afterwards appealed to the Circuit Court, the defect cannot then
be cured by substituting the name of the proper party in the declaration :
Nor can the note be allowed to go to the jury as evidence under the mo-
ney counts in a declaration, in the name of the holder, without proof of a
promise to pay him a note. Taylor v. Acre 491
14. The statute render^ unnecessary the revival of a suit brought in the name
of one person for the use of another, where the nominal plaintiff dies dur-
ing its pendency, but it does not authorise the commencement of a suit in
the name of such party, if he be dead ; and the defendant may plead his
death either in bar or abatement. Tait, use, Sfc. v. Froiv 543
15. When objection is made to testimony in the mass, in the Court below, it
is in the nature of a demurrer to the evidence, and will prevent particular
portions of it, from being submitted to a severe and searching criticism.
The objection to such portions of the testimony, should be specifically
made in the Court below. In such cases tliis Court will consider the tes-
timony by the same rules which govern demurrers to evidence, Gayle v.
TJie Cahawba and Marion Rail Road Company 587
16. After a judgment upon irregular proceedings is reversed, the whole re-
cord may be corrected by the judgment of the appellate Court. Sankey^s-
Ex'rs V. Sankey's Distribviees 602
17. Where the writ and declaration describes the plaintiff as an administrator
INDEX- 1043
PRATICE AT LAW— coNTmuED. t
•
suing for the use of another, and his name is merely stated upon the mar-
gin of the judgment entry, witliout indicating that he sues in a representa-
tive character, or for the use of another, the title of a purchaser under an
execution issued upon the judgment, in which the plaintff 's character, &c.
is described in the same manner as in the writ and declaration, will not be
affected by the discrepancy. Randolph v. Carlton 607
18. The Court may, in its discretion, permit a plaintiff to adduce additional
- testimony, after he had announced that his evidence had closed, and tlie
defendant tendered a demurrer to it Fant v. Cathcart. 725
19. It is a general rule, that the party holding the affirmative of the issue, must
support it by proof; but this rule has its exceptions. Givensv Tidmore. 746
See Amendment, 3, 11.
See Appeals and Certiorari, 4, 7.>
See Costs, 1.
See Error, Writ of, 21.
See Estates of Deceased Persons, 7.
See Execution, Writ of, 4.
See Executors and Administrators, 15, 16, 17,
See Garnishment and Garnishee, 2, 3, 4.
See Recognizance, 1, 3.
See Right of Property, Trial of, 6.
See Scire Facias, 1.
See Statutes of Limitation, &c. 9, 10.
See Summary Proceedings, 2.
PRACTICE IN CHANCERY.
1. Where the allegations of a bill were, that the indorsee of a note, knew
when he obtained it, that it was made upon a gaming consideration, and
he is called on by an interrogatory, to state under what circumstances the
same was assigned to him, his answer, that before the note was indorsed
to him, the maker informed him, it was good, and he had no offsets against
it, is not responsive to the bill. Manning v. Manning, et al 138
2. A bill to enjoin a judgment, should be filed in a Court of Chancery of the
county in which the judgment was obtained, and cannot be exhibited else-
where, unless the party interested in the recovery at law, will allow the
litigation to be had in another county. If such bill be filed in an impro-
per county, it may be dismissed on defendant's motion. Shrader v. Walk-
er, adnCr, et al , 244
3. Semble: A sheriff is not a necessary, or proper party, to a bill for an in-
junction, merely because he has in his hands the e7{ecution sought to be
enjoined, lb 244
1044 INDEX.
PRACTICE IN CHANCERY— CONTINUED,
4. Semble; although Chancery may have power to put a party into possession,
of land, who purchases at a sale made under its decree, where the posses-
sion is withheld by the defendant, or any one who comes in pendente lite, it
is not allowable to eject a mere stranger, having no connection with tlie
defendant, either immediately, or mediately. Trammel v. Simmons. . .271
5. The decree for the foreclosure and sale of mortgaged premises, directed,
that the purchaser be let into possession ; the purchaser found a stranger
in possession, of whom he demanded it, informing him, unless it was yield-
ed up, the Register would be moved for a writ of assistance, to eject him,
&c. The demand was disregarded, the wiit issued, the individual in pos-.
session ejected, and the purchaser let in to its enjoyment : Held, that the
party dispossessed cannot have die irregularity corrected on error, hut his
remedy is by an application to the Chancellor. lb 27 1
6. Whether one purchases of a mortgagor previous or subsequent to the com-
mencement of a suit for tlie foreclosure of a mortgage, it is not necessary
to make him a party, and such subsequent purchaser need not be made a
party to affect him with the lis pendens. Doe ex dem Chaudron v. M.agee, 570
7. Under the 4th rule of Chancery practice, it is not necessary to serve a
subpoona upon a married woman, unless she has a separate estate. It will
be sufficient if served upon her husband. Hollinger and Wife v. The
Brandi Bank at MohUe 605
8. To a bill for distribution against an administrator, appointed abroad, who
brings a portion of tlie assets into tliis State, all the distributees should be
made parties ; but a personal respresentative of a husband of one of the
distributees, who never reduced his wife's share into possession, need not
be joined. Julian, et al. v. Reynolds, etal .^ 680
!>. Under our course of practice, which does not permit a demurrer without
answer, when an objection is sustained against a bill demurred to as multi-
farious, it is proper that tlae complainant should amend his bill, or at least
be put to an election upon which ground he will proceed. Quere, as to tlie
practice in an appellate Court if the objection is overruled, and the bill is
heard upon all tlie distinct grounds. Mamoit ^ Hardcsty et al. v. Givens, 695
10. It is a general rule, that tlie party holding tlie affirmative of the issue, must
support it by proof ; but this rule has its exceptions. Givens, et al, v. Tid-^
more, 746
11. A reference to the Master, prematurely made, and embracing a matter
which the Court should have &st considered, will not be available on er-
ror, where the parties acquiesced in the irregularity. Dunn v. Dunn, 784
12. When a party to a suit in chancery, is examined before the master, upon
an account taken by him, his answers to the points upon which he is ex-
amined, are evidence for him ; he cannot introduce irrelevant matter as to
INDEX. 1045
PRACTICE IN CHANCERY— CONTINUED.
which he is not questioned, and make it evidence for hiin. The statute
autliorizing a party to prove items not exceeding $10, by his own oath
has no reference whatever to the practice in chancery, when a party is re-
quired by the chancellor to submit to an examination before the master.
Alexandss v. Alexander 796
13. The appropriate function of an exception to a master's report, is, to point
with distinctness, and precision, to the error complained of. An objection
to the result attained by the master upon the settlement of an account, is
too general to be noticed. It is tlie duty of the party objecting, to except
to tlie particular items alloAved, or refused, and it will then be the duty of
the master, to certify the evidence by which the disputed item, was admit-
ted or rejected. lb ; 797
14. When costs are directed to be paid out of the estate, if the litigation is
unnecessarily protracted, for tlie purpose of vexation, the Court will apply
the proper corrective, by taxing the party so acting, with the costs. lb. 797
15. A report by the Master, of a sale under the decree of the Court of Chan-
cery, requires the confirmation of the Court, which can only be regularly
made after notice to the parties adversely interested, that they may show
cause against it. Mobile Branch BanJc v. Hunt 876
16. Where a sale is made by the Master, in virtue of a decree, but, under a
misconception of the wishes and intentions of the parties in interest, the
sale may be set aside, if it has not been subsequently assented to, or acqui-
esced in for such a long time as to warrant the inference that it was assent-
ed to. lb 87G
See Chancery, 7, 13, 29, 33, 35, 37.
See Error, Writ of, 5.
See Lis Pendens, 1.
See Mortgage, 2.
PRINCIPAL AND AGENT.
1. When an agent was employed to sell land, and took from the purchaser
the note of another individual, indorsed by the purchaser, it is no defence
in a suit on the indorsement, in the name of the agent, to show, tliat the
principal has received the amount of the purchase money, unless it is also
shown, that it came from the maker or indorser of the note. The agent
paying the money to lys principal, acquired such an interest in the note as
to entitle him to sue upon it. Tankerslyw. J. &f A. Graham, 247
2. Where a Bank, which was making advances on cotton, stipulaied with
a shipper of that article that he should ship only to the agents of the Bank
who were to sell, &c., the stipulation made the agents of the Bank, pro re
nata, agents of the shipper, and an account of sales duly furnished by such
1046 INDEX.
PRINCIPAL AND AGENT— continued.
agents to their principal, is evidence against tlie shipper. Bali v. Tlie
Bank ofthx State ofMahama. • 590
3. Where the acts of the agent bind the principal, his representations and
declarations respecting the subject matter, will also bind him, if made at
the same time, and constitute part of the res gtsta;hvX Q;uere? Is it compe-
tent to establish the fact of agency by the declarations of tlie supposed
agent. Straivbridge v. Spann, 821
See Chancery, 30,
PRINCIPAL AND SURETY.
1. When lands are sold, and a bond for titles given by the vendor, to the
purchaser, and notes with sureties given for tlie purchase money, the sure-
ties are not discharged, in consequence of the title being conveyed by the
vendor, without payment of the notes. Woodward, et al. v. Clegg, 317
2. A surety cannot plead that his principal is dead, and due presentment of
the claim was not made to his representative. Nor will the omission to
present the claim for payment to the representative of tlie principal in the
debt, affect the right of the surety to recover from the estate, if he is com-
pelled to pay the debt. Hooks and Wright v. Branch Bank at Mobile. 580
3. The payee of a note brought an action thereon for the use of a tliird per-
son, who had become its proprietor, against one of the promisors, a surety ;
the consideration of the note was the sale of a tract of land by the payee
to the principal maker; at the tune of the sale there was an unsatisfied
judgment against the vendor, operating a lien upon the land, this judg-
ment the beneficial plaintiff authorized the principal to discharge, and pro-
mised to allow it as credit against the note ; and it was accordingly dis-
charged : Held, that the promise to the principal enured to the surety ;
that it was a direct and original undertaking to allow the payment, not ob-
noxious to the statute of frauds, and eo instanti it was made, extinguished
the note^ro tanto. Cole, iise,i^-c. v. Justice, 793
4. A creditor is entitled to the benefit of all pledges or securities, given to
or in the hands of a surety of the debtor, for his indemnity, and this, whether
the surety is damnified or not, as it is a trust created for the better secu-
rity of the debt, and attaches to it. OMo Life Ins. Co. v. Ledyard, 8fc. 866
5. At a sale under execution of the principal's property, it is competent for
the surety to purchase, although the judgment and Jieri facias may be
against them jointly. Carlos, use. Sfc. v. Ansleij, 900
6. A notice which omits to point the creditor directly to the principal, whom
he is required to proceed against, or to the security, on which he is requir-
ed to proceed, is of no effect, either under the statute or at common law.
Shehan v. Hampton 942
INDEX. imr
PRINCIPAL AND SURETY— continued.
7. The discharge of a surety, by means of the statutory notice, must be plead-
ed specially. lb - 943
8. S, having a judgment against A, verbally agreed with him that he would
bid off the land of A, subject to an agreement to be afterwards entered in-
to between them. Shortly afterwards they met, and ascertained tlie amount
due from A to S, including tlie note here sued upon, and it was then agreed
in writing, tliat A should have two years to pay the debt, by four equal
instalments, and that upon the payment of the debt, S would convey the
land to A. A foiled to pay the instalments, and by consent of A, S sold
the land — Held that the verbal agreement was void under the statute of
frauds, and the written agreement void for want of consideration. That
it was a mere gratuitous promise, which S might have disregarded, and
brought suit immediately for the recovery of tlie debt, and therefore did
not exonerate the surety, ^gee v. Steele 948
See Chancery, 2.
See Constable and Surety, 1.
See Debtor and Creditor, 4.
See Limitations, Statute of" 5.
See Penalty, 1.
See Pleading, 28.
PROMISE.
1. A promise by the maker, to an innocent holder of usurious paper, to pay
it, if indulgence is given, is binding on him, and may be enforced, if the
delay is given. Palmer, use, 4'c. v. Severance and Stewart, 53
2. A brother-in-law, wrote to the widow of his brotlier, living sixty miles dis-
tant, tliat if she would come and see him, he would let her have a place to raise
her family. Shortly after, she broke up and removed to the residence of
her brother-in-law, who for two yeass furnished her with a comfortable
residence, and then required her to give it up : Held, that the promise was
a mere gratuity, and that an action would not lie for a violation of it.
Kirksey v. Kirlcsey 131
3. A promise to pay a sum of money in Alabama bank or branch notes, is a"
promise to pay in notes of the Bank of the State of Alabama or its branch-
es, and it is proper for a Court to charge a jury that such is the proper
construction, without evidence ot the meaning of the terms used. Wilsen
V. Jones, 536
PUBLIC POLICY,
1. Although the issuance of bills of a less denomination than three doUar»
was prohibited, at the time when a contract for the loan of the bills of aa
1048 INDEX.
PUBLIC POLICY— CONTINUED.
unchartered association was made, yet the mere fact that biDs for less
than three dollars were received, does not avoid the contract. McGehee
V. PoweU, 828
See Contract, 5.
RECOGNIZANCE.
1. A recognizance, conditioned that the party charged will appear and an-
swer to tlie indictment to be preferred against him at a named term of tlie
Court, and not depart tlierefrom without leave, may be extended at any
subsequent term, if an indictment is preferred and found at that term. El-
lison V. The State 273
2. When tlie parties acknowledge themselves bound in the sum of $.500, to be
levied severally and individually of their goods, &.c'., respectively, this is
a joint and several recognizance, and not the several recognizeince of eacli
of the parties for that sum. 76, 27.3
3. Under our statutes, which allow a sci. fa. without setting out the recog-
nizance, the defendant is entitled to crave oyer of the recognizance upon
which the proceedings are based, and to demur if tliere is a varianue. lb. 273
See Amendment, 5.
Eee Error, Writ of, 6.
RECORD.
1. The Circuit Court, independent of express legislation, has the power to
^■'substitute a judgment, roll, or entry, when the original record is lost, and
. " 'the substituted matter becomes a record of equal validity with the origi-
iial. McLendon v. Jones 298
2. The manner of correcting the loss, is to show by affidavits, what the re-
cord contained, the loss of which is sought to be supplied. The substitu-
tion can only be made after a personal notice of the intention to move the
Court, and the notice must be sufficiently explicit to advise the opposite
party of what is intended, as well as to enable him to controvert the affida-
' davits submitted. lb 298
3. Where the genuineness of a copy of the proceedings of the Probate Court
of a sister State are authenticated by the attestation of its clerk, the certi-
ficate of tlie Judge to the official character of the clerk, and the formality
of his attestation, and the additional certificate of the clerk, in tlie terms
. of the law, to the official qualification of the Judge, its authentication is
complete, under the act of Congress of 1804, amendatory of the act of
1790. Kennedy v. Kennedy's odvi'r 391
RIPARIAN RIGHTS.
See Grants by acts of Congress, 2, 3.
See Land Titles South, I.
INDEX. • 1033
MORTGAGOR AND MORTGAGEE— continued.
that S. & C. must look to G. for their reimbursement. Ohio Life Ins. ^
Tmst Co. V. Ledyard. 866
3. Where a third person becomes tlie purchaser of the equity of redemption,
and afterwards pending a bill against the mortgagor for a foreclosure, ob-
tains an assignment of the mortgage, he acquires all the title of the mort-
gagor, with the incumbrance discharged ; yet he may (especially if the
mortgagee does not object,) prosecute the suit in tlie mortgagee's name^
to a decree of foreclosure and sale, for the purpose of more effectually se-
curing his title. Mobile Branch Bank v. Hunt. »876
See Chancery, 17, 18.
See Deeds of Trust, 8. '
NOTICE.
1. A notice to one of the clerks, not to furnish goods for defendant's family,
without a written order from himself, or his wife, is not notice to the prin-
cipals of the house, or the other clerks. Grant v. Cole Sf Co. . . . c. .519
2. A notice that the sheriff " has failed to return an execution," which is des-
cribed, is sufficient, without an allegation that he failed to return it three
days before the return day of the writ. Caskey, d als. v. JVitcher. ...» 622
3. A notice, that the plaintiff proceeds for the amount specified in the exe-
cution, sufficiently indicates under what statute he proceeds./6 622
4. When a notice is pleaded to by the sheriff, it is in the nature of a decla-
ration, and may be amended on motion. Walker, et als. v. Turnipseed, 679
5. A written notice to the attoriiey at law of a party, to produce a paper to
be used as evidence, is declared by statute to be valid and legal to all in
tents and purposes, as if served on the party in person. Simington, use,
ifc. V. Kenfs Et'r 691
6. Where a suit is brought in the name of one person for the use of anotherj
a notice to the attorney of record of the plaintiff, to produce a writing
which merely describes the suit as between the nominal plaintiff and the
defendant is sufficiently certain, and the attorney cannot excuse the non-
production, by proof that he was retained by the plaintiff really inter-
ested, lb. 691
7. Under our statute of registration, actual notice of the existence of a deed
is equivalent to the constructive notice afforded by registration. Ohio
Eife Ins. Co. v. Ledyard, 866
8. A notice which omits to point the creditor directly to the principal, whom
he is required to proceed against, or to the security, on which he is requir-
ed to proceed, is of no effect, either under the statute or at common law.
Shehan v. Hampton 942
130
1034 • INDEX.
NOTICE— C ONTINUED.
9. The discharge of a surety, by means of the statutory notice, must be plead-
edspecially. 76 - 942
See Chancery, 28,
See Deeds and Bonds, 10.
See Vendor and Vendee, 14.
ORPHANS' COURT.
1. The administrator having appeared in obedience to the citation, is affect-
ed with notice of all the subsequent proceedings. Duffee, admlr v. JBu-
chanan and Wife . . ., 28
2. Where the Orphans' Court orders the sale of the real estate of an intes-
tate, upon the petition of the administrator, alledging that the personal es-
tate was insufficient to pay debts, the administrator, although one of the
heirs, cannot object on error, that the evidence on which the decree of the
Orphans' Court was founded, was ex parte ; or that tlie record does not
show that the heirs residing in the county had personal notice that the pe-
tition was filed ; or tliat tlie Orphans' Court, instead of appointing a guar-
dian for one of the heirs, should have required that heir to select one for
. herself. These are irregularities that do not show a want of jurisdiction
in the pnmary Court, and cannot affect the administrator, and if important,
he should have prevented them by conducting the proceedings according
to law. Evans, adnCr v. Mathews 99
3. The Orphans' Court ordered that an administrator, who made, what was
supposed an imperfect report upon the sale of real estate under its decree,
should be committed, until he made one more perfect ; a report was ac-
cordingly made > Held, that the order of commitment, whether erroneous
or not, furnished no ground for the decree which directed the sale. lb. 99
4. An equitable title may be sold under a decree of the Orphans' Court, and
the purchaser will stand in the same predicament, as to title, as the heirs
did. lb 100
5. It is not necessajy to the validity of proceedings by administrators before
the Orphans' Court, that parties should there be made except in cases pro-
vided by the statute. Even where the estate is ready for distribution, a
general citation to parties having an adverse interest was necessary, prior
to the last act Watson and Wife v. May. 177
6. Persons having an adverse interest, are not concluded by an erroneous
decree, but tliey cannot, without further proceedings, forthwith sue out a
writ of error. lb 177
7. The personal representative is entitled to examine and litigate the title of
any one who claims an interest in the final distribution of the estate. —
lb 177
INDEX. 1035
ORPHANS' COURT— coNxmuED.
8. When the proceedings by an executor or administrator have been in con-
fonni^ to the rules prescribed for his action, there can be no review of the
facts upon which the judgment of the Court is founded, although persons
having an adverse interest were not apprised of the final settlement in-
tended by the administrator. On the otlier hand, tlie administrator cannot
prevent a re-examination, when the proceedings are erroneous, because
those actually interested have not appeared. lb 177
9. When any one claims to have the right to examine the correctness of a
final decree, the proper practice is for him to propound his interest to the
Court in which the decree is rendered. Upon this, after citation to the
administrator, and his appearance or default, the person is made a party,
or his petition is dismissed. lb 177
10. When by a will, a life-estate is given to the wife in all the property of
the deceased, with remainder to the children, and the will is proved, and
admitted to record, the Orphans' Court has no power to make distribution
of the property during the life-time of the wife. Such a distribution, made
during the life of tlie widow, and at her instance, or by her consent, is not
the act of the Court, but is in effect a gift of her life-estate, and no matter
how unequal it may be, will not prejudice the interests of those in remain-
der. Bothwell, et al. v. Hamilton, admUr '. 461
11. Previous to the act of 1845, the Orphans' Court was not invested with the
jurisdiction to compel the executor or administrator of a guardian to appear
and settle the accounts of the deceased guardian. Snedicor v Carries. 655
12. Where a guardian voluntarily files his accounts for final settlement, with
the Orphans' Court, he cannot object on error, that the publication required
by the statute was not made — the notice contemplated by the act being
intended for the benefit of the ward, or others interested in the settlement.
Treadtodl, Guardian, v. Burden, Adm'r 660
13. In settling the accounts of a guardian, it is not competent for the Orphans'
Court to render a decree against his'sureties; and such is not the effect of
a decree, which declares that a guardian and his sureties, (without desig-
nating them by name) shall be charged with the amount ascertained to be
due, and made liable to the administrator of his ward, "for which he is
authorized to proceed in the collection according to law ;" such a decree
does not impair the rights of the sureties to make them parties. And if an
execution issue against the sureties it may be arrested by supersedeas, and
quashed, but the sureties cannot join the guardian in prosecuting a writ of
error to revise the decree. lb 661
See Estates of Deceased Persons, 1, 2,8,9.
See Executors and Administrators, 1,3.
See Guardian and Ward, 4.
1036 INDEX.
PARTNERS AND PARTNERSHIP.
1. It is not within the ordinary scope of a partnership created for the mere
purpose of buying and selling merchandize, to receive and undertake to
collect notes. Hogan &f Co. v. Reynolds 60
2. If there is a distinction, as to the capacity of one partner to bind the firm,
between the borrowing of money and notes, it does not apply when the
borrowed note is taken for the purpose of receiving money upon it, and
the money is actually received. lb 60
3. If a partner has converted the money of another to his own use, and af-
terwards appropriates the same sum to the purposes of the firm, the firm
does not thereby become a debtor to the person whose money has been
converted ; but if one partner, in tlie firm name, but without the authonty
of his partners, obtains money and applies it to the use of the firm, the firm
is liable the instant the appropriation is so made, although it would not be
in the absence of such appropriation, becaese of the defect of authority,
lb 60
4. Where three persons are sued as partners, upon an open accoimt, in as-
sumpsit, one against whom a judgment by default has been taken, is a
competent witness to prove that one of the defendants was not a partner,
he having pleaded tlie general issue. Gooden Sf McKee v. Morrow if Co. 486
5. Three persons being sued as partners, proof, that after part of the account
sued upon was created, and the partnership dissolved, the retiring partner
paid the others a sum of money to cover his responsibility, for the firm
debts, is irrelevant and inadmissible, lb , 486
6. .A partner, or joint promisor, who is not sued, is a competent witness for
his co-partner, or co-promisor, where he is required to testify against his
interest ; and where such evidence is within the scope of the issue, the
Court sliould not assume his incompetency, and reject him in limine. An-
derson V. Snow 8f Co. .....' 504
7. One who contracted with two persons eugaged in running a steam-boat,
as pilot, cannot charge a third person as a partner, who was not in fact a
partner, and had never held himself out to the world as such, but who
had done some acts from which it might have been inferred he was a part-
. ner, but of which the person so contracting, was, at the time, wholly ig-
■j norant, and did not engage as pilot, in reference to his responsibility. —
Wright v,PoioeU , 560
8. When one of a firm is garnisheed, the creditor must be considered as
electing to proceed against him solely, and on his answer, admitting the
indebtedness of the firm, is entitled to have judgment against him, S. Sf
E. Travis v. Tartt 574
9. A suit commenced against one partner of a firm, will survive against his
personal representatives, and may be revived against them hy sci. fa. —
lb .574
INDEX. 10 37
PARTNERS AND PARTNRRSHIP— continued.
10. Notes made by a trading company, and for which the plaintiff's intestate
might have been liable as a partner, are not admissible to the jury under
the pleas of non-assumpsit, want of, or failure of consideration. McGehee
V. Powell 827
11. There can, under the statute, be no limited partnership for tlie purpose of
banking, or making insurance, and an association formed in ] 838, for the
purpose of issuing bills to circulate as money, was not prohibited by the
statute from doing the act. The only consequence resulting from the act
ia to make all the partners alike responsible, lb 827
See Evidence, 53.
PATENTS.
1. If a patent issued under an act of Congress describes the land by other
metes and bounds than the act designates, it is void, both in law and equi-
ty, as to the excess which it professes to convey. Doe, ex dem. Pollard's
heirs v. Greit. , 931
PENALTY.
1. It is correct, as a general proposition, that the penalty of a bond limits the
responsibility of one who executes_it as a surety, and consequently he is
not liable, in the eveM of a breach, for interest upon the penalty. Ansly v.
Mock 445
2. The surety is not bound beyond the penalty of the bond, and a judgment
against him for a larger sum, will be here amended at the costs of the plain-
tiffin error. Searmns, et al. v. fFhitc. ,657
PLEADING.
i. The plaintiff, defendant and B. were joint sureties for Brown, in a bond
executed pursuant to the statute, by the defendant, in an action of detinue:
previous to the termination of the suit, the plaintiff endeavored to obtain
possession of the property in controversy ; this was resisted by the defend--
ant, who was in possession of the same — saying he would keep it until the
trial, and be responsible for its forthcoming. But instead of so doing, de-
livered the property to the defendant in the action of detinue, who remov-
ed it without the State ; by reason of Avhich the plaintiff was put to great
trouble and expense, and sustained damages, &c. Held, that a declaration
framed upon these facts, in case, was good on general demurrer. Kent v.
Long 44
2. A demurrer to a declaration containing several counts, will not be sustain-
ed, if either of them is good, unless there is a misjoinder of counts ; in that
case, it will be sustained, without reference to the sufficiency of the counts
when detached from each other. lb , 44
1038 INDEX.
PLEADING C ONTINUED.
3. Reference may be made in the declaration to a previous count, for dates,
dtc, which will be sufficient, although such previous count be held bad on
demurrer. Morrison v. Spears. 93
4. A count which does not show, either by an express allegation, or by refer-
ence to some other count, that the note sued on was due, when the suit
was brought, is bad on general demuiTer. Ih 93
5. When the sheriff has re-sold the thing which the first purchaser has re-
fused to pay for, there is an implied contract by the first purchaser to pay
the difference, which is thus ascertained between liis bid and the subse-
quent sale ; and a count upon a contract to pay the same, is good. Lam-
kin V. Crawford. 153
6. A plea seeking to abate an ancillary attachment, on the ground that the
defendant had been previously arrested and held to bail, is bad on de-
murrer. Massey v. Walker 1 67
7. A replication to a plea in abatement, asserting that the arrest of the de-
fendant, and pendency of the suit spoken of in the plea, are part of the pro-
ceedings in the same suit, as pleaded to, should conclude to the Court, as
it is triable by the record. lb 167
8. Where it appears that the defendant and plaintiff pleaded and replied " in
short by consent," it will be intended that the plea and replication con-
tain every material allegation tliat the law requires, to make them com-
plete ; but if the pleading could not be supported, if drawn out in fonn, a
demurrer should be sustained, if so interposed as to reach the defect Har-
groves V. Cloud. 173
9. Aprofert in curia, of a parol contract, is surplusage, and does not vitiate.
Magee v. Fisher, etal 320
10. A replication which answers the plea but in part, leaving a material part
unanswered, is bad on demurrer. WMtehurst, use, &)C. v. Boyd. 375
11. Where several replications are made to one plea, the Court, on motion,
will strike out all the replications but one, and put the plaintiff to his elec-
tion, which he will retain. Or the objection may be made by a demurrer
to all tlie replications, but not by a separate demurrer to each. Vance v.
Wdls &f Co 399
12. The defendant in a suit at law, filed his bill to enjoin a trial, and pursu-
ant to an order for that purpose, entered into a bond with surety, condi-
tioned to pay the plaintiff " all damages which he might sustain by the
wrongful suing out of the injunction " &c. In a suit by the obligee against
the surety, the declaration alledged that the injunction was dissolved, six
or seven years after it was awarded ; a judgment at law rendered for the
plaintiff— the amount thereof ; that ajieri facias was duly issued thereon,
and by the sheriff returned " no property found ;" further, tliat when the
judgment was rendered and the execution issued, the defendant was insoU
INDEX. . 1039
PLEADING CONTINUED.
vent, and unable to pay the same ; By reason of all which the bond be-
came forfeited, &c.: Held, that the breach was not well assigned, but it
should have been shown what was the condition of the principal^ obligor
when the bond was executed ; for if he was then insolvent, or became so
shortly thereafter, and before, in theordinarycourseof proceeding, a judg-
ment could have been recovered, if a trial had not been enjoined, the plain-
tiff would have sustained no " damages," and nothing more tJian the costs
in Chancery could be recovered. Ansleyv. Mock 444"
13. The plea of nil debit to an action of debt on a bond, is bad on demurrer ;
but if the plaintiff demurs to it, the Court should visit the demurrer upon
the declaration, if it be defective in substance, Ih 445
14. The office of an inuendo is to explain, not to enlarge, and is the same in
effect as " that is to say;" whether used for the purpose of enlarging, or
other unauthorized purpose, it is not issuable, and furnishes no warrant
for sustaining a demiurer to the declaration. Whitsett v. Womack. . . 467
15. It being proved that the note was given for a cotton gin, which the defend-
ant had the privilege of trying and returning if it was not good — held, tha^
this was a condition for the benefit of the defendant, which he must take
advantage of by plea, and that the note might be declared on, as an abso-
lute promise to pay on the 1st January, 1842, without noticing the condi-
tion. Lockhard v, Aveiy ^ Speed, use, ^'c 502
16. An accusation of perjury implies within itself every thing neceasary to
constitute the offence, and if the charge has reference to extra jtidicial tes-
timony, the onvs lies on the defendant of showing it. It is not necessary
in such a case to alledge a colloquium, showing that the charge related to
material testimony in a judicial proceeding. Hall v. Montgomery. . . .510
17. The statute renders unnecessary the revival of a suit brought in the name
of one person for the use of another, where the nominal plaintiff dies dur-
ing its pendency, but it does not'authorise the commencement of a suit in
the name of such party, if he be dead ; and the defendant may plead his
death either in bar or abatement. Tait, use, Sfc. v. Frow 543
18. A plea to an action of covenant, that since it was made, so much thereof
as required the defendant to deliver 1,300 bushels corn, 20,000 lbs. fod-
der, six horses, 75 head of hogs, and 25 head "of cattle, was waived by a
subsequent contract between said defendant and said testator, in his life-
time, so that said defendant was not bound to deliver said horses, cattle,
" oxen and hogs, as may happen to die or be lost, without any neglect of
defendant, before the day appointed for their delivery ; and defendant avers
that a large number of said horses, cattle, and oxen, did die, or were lost,
without his default, before tlie time appointed for their delivery, &c., is bad-
because an executory parol contract, cannot be pleaded in bar of an action
1040 INDEX.
PLEADING— CONTINUED.
upon a sealed instrument. And also, because of uncertainty, in not alledg-'
ing how many ofthe horses, &c. had died, or were lost. Sorrellv Craig 6f>d
19. In debt upon an attachment bond, the declaration should show that the
., attachment was wrongfully or vexatiously sued out, and that thereby th^
obligee has sustained damages. Flanagan v. Gilchrist 620
20. In a suit by an indorsee against his immediate indorser, on a note pur-
porting to be made by G. & B., in liquidation, by W. B ., it is no defect if
* the latter Avords are omitted in the declaration, nor can the note be ex-
cluded on the ground that it varies from that declared on. Riggs v. An-
drews^ Co 628
21. To a plea of nan assumpsit, the defendant appended an affidavit, " that
the paper sued upon by the said John Test is not his act and deed" — Held,
that this was sufficient to put the execution of the instrument sued upon
in issue, though it was not a sealed instrument. Hunt v. Test 713
22. Where the plaintiff replies to the plea of infancy, that the defendant pro-
mised to pay the debt in question after he attained his majority, the fact of
infancy is admitted, audit devolves upon the plaintiff to prove the subse-
quent promise. Fani v. Cathcart 725
23. In declaring on a bond with condition, the plaintiff may declare upon the
- penalty, or set out the condition and assign breaches at his election. If
he pursues the latter course, advantage may be taken of an insuffiient as-
signment of breaches, in the same maimer as if they had been assigned in
answer to a plea of performance. Anderson v. J. &f T. Dickson 733
24. It is not necessary to assign as a breach any fact which is admitted by the
bond itself, lb 7a3
25. The only breach necessary to be assigned in a suit upon the bond which
the plaintiff in detinue is required -to execute, upon suing out the writ, is
the failure of the plaintiff in the suit Ih 733
26. Although the writ, and declaration, may describe the defendant as an ex-
ecutor, yet if the declaration shows that the action cannot be maintained
against him in his representative capacity, it wiil be considered as a de-
scription merely ofthe person, and a judgment will be rendered against
him in his individual character. Johnson v. Gaines 791
27. Semble: A plea which merely alledges that the debt sought to be recover-
ed is of a fiduciary charader, is bad ; because it states a legal conclusion,
instead of disclosing the facts, that the Court may determine whether the
Aebt is founded upon a trust, such as is excepted from the operation ofthe
bankrupt act. Mahry, Giller &{ Walker v. Herndon 849
28. In a plea under the statute discharging a surety, when the creditor, after
notice in writing, omits to proceed on the security, it is not necessary to
aver that the surety apprehends that his principal is about to become in-
solvent, or that he was about to migrate from the State without paying the
INDEX. 1041
PLEADING— CONTINUED.
debt ; nor is it necessary his apprehension of these facts, or either of them,
should be set out in the notice. Shehan v, Hampton » 942
29. The discharge of a surety, by means of the statutory notice, must be
pleaded specially, lb 943
See Error, Writ of, 23.
, See Frauds, Statute of, 1.
; See Insolvent Debtor, 3. i
PRACTICE AT LAW.
1. Where a joint obligation would survive upon the death of one of iJie obligors,
against his heirs and personal representatives, a judgment founded on it,
will also survive against them, upon the death of one of the parties to the
' judgment. Martin, adm^r. v. Hill •. 43
2. When a party to a suit in this Court dies, pending the suit, and it is abat-
■ ed as to him, it becomes sevei-al as to him, and is not merged in the
" judgmeat of this Court, against the other parties to the judgment, and
their sureties, lb 43
3. If " the declaration contains a substantial cause of action, and a material
. issue be tried thereon," the act of 1824 declares, that the cause will not
be reversed, arrested, or otherwise set aside, after verdict, or judgment,"
for a defect in " the pleadings not previously objected to ;" consequently,
an appellate Court will not regard the defects of a declaration, if a demur-
rer has not been directly interposed, or the attention of the primary Court
called to it upon a demurrer to some other part of the pleadings ; and in
the latter case, the record should' show such to have been the fact Kent
V. Lonff. ........ .^ 44
4. After the plaintiff has introduced his evidence, the defendant his, and the
plaintiff rejoined, it is then a matter of discretion whether the Court will
allow the defendant to adduce further testimony. Borland v. Mayo. . . 105
5. In practice, no formal judgment oTrespondeas ouster is entered upon the
sustaining a demurrer to a plea in abatement. The sustaining of the de-
murrer is entered on record, and if the defendant wishes to plead over, he
is permitted to do it. Massey ». Walker. . 167
6. The Court in which a suit is pending, may, in its discretion, set aside an
interlocutory judgment, and allow the defendant to make defence, at least,
if he interposes a general demurrer, or plea to the merits. Bagby, Gov.
$fc. V. Chandler &f Chandler 230
7. Upon certiorari, judgment may be entered against a party to the original
judgment, who did not join in the bond to obtain the writ of certiorari.' —
Dobson, et al. v. Dickson, use, &fc 252
8. The Circuit Court, independent of express legislation, has the power to
substitute a judgment, roll, or entry, when the original record is lost, and
the substituted matter becomes a record of equal validity with the original.
McLendon v. Jones 298
131
104^ INDEX.
PRACTICE AT LAW— continued.
9. The manner of correcting the loss, is to show, by affidavits, what the re-
cord contained, the loss of which is sought to be supplied. The substitu-
tion can only be made after a personal notice of the intention to move the
Court, and the notice must be sufficiently explicit to advise the opposite
party of what is intended, as well as to enable him to controvert the affida-
vits submitted. lb 298
10. A party whose acceptance of service is not spread on the record, in the
first instance, may ciu-e the defect, by admitting the fact, at a subsequent
term, although there are other parties to the suit. Woodward, et al. v.
Ckgge. ..: 317
11. A dismissal of one of the parties to a motion for judgment, is not a dis-
continuance of tlie entire motion, tliough the party dismissed was notified,
and has appeared, and pleaded. Beard v. Branch Bank at Mobile.. . .344
12. Where several replications are made to one plea, the Court, on motion,
will strike out all the replications but one, and put tlie plaintiff to his elec-
tion, which he will retain. Or the objection may be made by a demurrer
to all the replications, but not by a separate demurrer to each. Vance v.
JVdls &f Co. . 399
13. When a suit by attachment is improperly commenced in the name of the
party to whom a note not negotiable is transferred without indorsement,
instead of using the name of the person having the legal interest, and the
cause is afterwards appealed to the Circuit Court, the defect cannot then
be cured by substituting the name of the proper party in the declaration :
Nor can the note be allowed to go to the jury as evidence under the mo-
ney counts in a declaration, in the name of tlie holder, witliout proof of a
promise to pay him a note. Taylor v. Acre 491
14. The statute renders uimecessary the revival of a suit brought in the name
of one person for the use of another, where the nominal plaintiff dies dur-
ing its pendency, but it does not autliorise the commencement of a suit in
tlie name of such party, if he be dead ; and the defendant may plead his
death either in bar or abatement. Tait, use, Sfc. v. Frow 543
15. When objection is made to testimony in the mass, in the Court below, it
is in the nature of a demurrer to the evidence, and will prevent particular
portions of it, from being submitted to a severe and searching criticism.
The objection to such portions of the testimony, should be specifically
made in the Court below. In such cases this Court will consider the tes-
timony by the same rules which govern demurrers to evidence, Gayle v.
The Cahawba and Marion Bail Boad Company • 587
16. After a judgment upon irregular proceedings is reversed, the whole re-
cord may be corrected by the judgment of tlie apjwllate Court. Sankey^s
Ex'rs V. Sankey's Distribvtees 602
17. Where the writ and declaration describes the plaintiff as an administrator
INDEX. 1043
PRATICE AT LAW— CONTINUED.
suing for the use of another, and his name is merely stated upon the mar-
gin of the judgment entry, witliout indicating that he sues in a representa-
; tive character, or for the use of another, tlie title of a purchaser under an
'• execution issued upon the judgment in which the plaintfT's character, &c.
• is described in the same manner as in the writ and declaration, will not be
affected by the discrepancy. Randolph v. Carlton 607
18. The Court may, in its discretion, permit a plaintiif to adduce additional
- testimony, after he had announced that his evidence had closed, and the
defendant tendered a demurrer to it Fant v. Cathcart 725
19. It is a general rule, that the party holding the affirmative of the issue, must
support it by proof; but this rule has its exceptions. Oivens v Tidmore. 746
See Amendment, 3, 11.
'' See Appeals and Certiorari, 4, 7.
■ •' See Costs, 1.
^ SeeError, Writof, 21.-
See Estates of Deceased Persons, 7.
See Execution, Writ of, 4.
See Executors and Administrators, 15, 16, 17.
See Garnishment and Garnisiiee, 2, 3, 4.
See Recognizance, 1, 3.
See Right of Property, Trial of, 6.
See Scire Facias, 1.
' See Statutes of Limitation, &c. 9, 10.
'" See Summary Proceedings, 2.
PRACTICE IN CHANCERY.
1. Where the allegations of a bill were, that the indorsee of a note, knew
when he obtained it, that it was made upon a gaming consideration, and
he is called on by an interrogatory, to state under what circumstances tlie
same was assigned to him, his answer, that before the note was indorsed
to him, the maker informed him, it was good, and he had no offsets against
it, is not responsive to the bill. Maiming v. Manning, et al 138
2. A bill to enjoin a judgment, should be filed in a Court of Chancery of the
county in which the judgment was obtained, and cannot be exhibited else-
where, unless the party interested in the recovery at law, will allow the
litigation to be had in another county. If such bill be filed in an impro-
per county, it may be dismissed on defendant's motion. Shrader v. Walk- .
er, adnir, et al , 244
3. Semble: A sheriff is not a necessary, or proper party, to a bill for an in-
junction, merely because he has in his hands the execution sought to be
enjoined, lb , 244
1044 INDEX,
PRACTICE IN CHANCERY— CONTINUED.
4. Semble; although Chancery may have power to put a party into possession,
of land, who .purchases at a sale made under its decree, where the posses-
sion is withheld by the defendant, or any one who comes in pendente lite, it
is not allowable to eject a mere stranger, having no connection with the
defendant, either immediatelj*, or mediately. Trammel v. Simmons. . .271
5. The decree for the foreclosure and sale of mortgaged premises, directed,
tliat the purchaser be let into possession ; the purchaser found a stranger
in possession, of whom he demanded it, informing him, unless it was yield-
ed up, the Register would be moved for a writ of assistance, to eject him,
&c. The demand was disregarded, the writ issued, the individual in pos-
session ejected, and the purchaser let in to its enjoyment: Held, that the
party dispossessed cannot have the irregularity corrected on error, hut his
remedy is by an application to the Chancellor. lb 271
6. Whether one purchases of a mortgagor previous or subsequent to the com-
mencement of a suit for the foreclosure of a mortgage, it is not necessary
to make him a party, and such subsequent purchaser need not be made a
party to affect him with the lis pendens. Doe ex dem Chaudron v. Magee, 570
7. Under the 4th rule of Chancery practice, it is not necessary to serve a
subpoena upon a married woman, unless she has a separate estate. It will
be sufficient if served upon her husband. Hollinger and Wife v. The
Branch Bank at Mobile 605
8. To a bill for distribution against an administrator, appointed abroad, who
brings a portion of the assets into this State, all the distributees should be
made parties ; but a personal respresentative of a husband of one of the
distributees, who never reduced his wife's share into possession, need not
be joined. Julian, et al. v. Reynolds, etal ' 680
9. Under our course of practice, which does not permit a demurrer without
answer, when an objection is sustained against a bill demurred to as multi-
farious, it is proper that the complainant should amend his bill, or at least
' be put to an election upon which ground he will proceed. Quere, as to the
practice in an appellate Court if the objection is overruled, and the bill is
heard upon all the distinct grounds. Mamott Sf Hardesty et al. v. Givens, 695
10. It is a general rule, tliat the party holding the affinnative of the issue, must
•• support it by proof; but this rule has its exceptions. Givens, et al. v. Tid-
''^more, 746
11. A reference to the Master, prematurely made, an^ embracing a matter
' which the Court should have first considered, will not be available on er-
• ""^ ror, where the parties acquiesced in the irregularity. Dunn v. Dunn, 784.
12. When a party to a suit in chancery, is examined before the master, upon
an account taken by him, his answers to the points upon which he is ex^
*f atnined, are evidence for him ; he cannot introduce irrelevant matter as to
INDEX. 1045
PRACTICE IN CHANCERY— CONTINUED.
which he is not questioned, and make it evidence for him. The statute
authorizing a party to prove items not exceeding $10, by his own oath
rt has no reference whatever to the practice in chancery, when a party is re-
H. quired by the chancellor to submit to an examination before the master.
=^ Alexandss v. Mexander. : 796
•13. The appropriate function of an exception to a master's report, is, to point
with distinctness, and precision, to the error complained of. An objection
to the result attained by the master upon the settlement of an account, is
too general to be noticed. It is the duty of the party objecting, to except
to the particular items allowed, or refused, and it will then be the duty of
the master, to certify the evidence by which the disputed item, was admit-
ted or rejected. lb 797
14. When costs are directed to be paid out of the estate, if the litigation is
unnecessarily protracted, for the purpose of vexation, the Court will apply
the proper corrective, by taxing the party so acting, with the costs. lb. 797
15. A report by the Master, of a sale under the decree of the Court of Chan-
cery, requires the confirmation of the Court, which can only be regularly
made after notice to the parties adversely interested, that they may show
cause against it. Mobile Branch Bank v. Hunt. 876
16. Where a sale is made by the Master, in virtue of a decree, but, under a
misconception of the wishes and intentions of the parties in interest, the
sale may be set aside, if it has not been subsequently assented to, or acqui-
esced in for such a longtime as to warrant the inference that it was assent-
ed to. D) 876
See Chancery, 7, 13,29, 33, 35, 37.
See Error, Writ of, 5.
Sec Lis Pendens, 1.
See Mortgage, 2.
PRINCIPAL AND AGENT. *
1. When an agent was employed to sell land, and took from the purchaser
the note of another individual, indorsed by the purchaser, it is no defence
in a suit on the indorsement, in the name of the agent, to show, tliat the
principal has received the amount of the purchase money, unless it is also
shown, that it came from the maker or indorser of the note. The agent
paying the money to his principal, acquired such an interest in the note as
to entitle him to sue upon it. Tankersly v. /. ^ A. Graham, 247
2. Where a Bank, which was making advances on cotton, stipulaied with
a shipper of that article that he should ship only to the agents of tlie Bank
who were to sell, &c., the stipulation made the agents of the Bank, pro re
nata, agents of the shipper, and an account of sales duly furnished by such
1046 INDEX.
PRINCIPAL AND AGENT— continued.
agents to their principal, is evidence against tlie shipper. Ball v. The
Bank ofthx State of Alabama 590
3. Where the acts of the agent bind the principal, his representations and
declarations respecting the subject matter, will also bind him, if made at
the same time, and constitute part of the res gestce; but Quere'^ Is it compe-
tent to establish the fact of agency by the declarations of tlie supposed
agent. Strawbridge v. Spann, 821
See Chancery, 30,
PRINCIPAL AND SURETY.
1. When lands are sold, and a bond for titles given by the vendor, to the
purchaser, and notes with sureties given for the purchase money, the sure-
ties are not discharged, in consequence of the title being conveyed by the
vendor, without payment of the notes. Woodward, et al. v. Clegg, 317
2. A surety cannot plead that his principal is dead, and due presentment of
the claim was not made to his representative. Nor will the omission to
present the claim for payment to the representative of the principal in the
debt, affect tlie right of tlie surety to recover from the estate, if he is com-
pelled to pay tlie debt. Hooks and Wright v. Branch Bank at Mobile. 580
3. The payee of a note brought an action thereon for the use of a third per-
•y son, who had become its proprietor, against one of the promisors, a surety ;
''"the consideration of the note was the sale of a tract of land by the payee
'to tlie principal maker; at the time of the sale there was an unsatisfied
judgment against the vendor, operating a lien upon the land, this judg-
ment the beneficial plaintiff authorized the principal to discharge, and pro-
mised to allow it as credit against the note ; and it was accordingly dis-
charged : Held, that the promise to the principal enured to the surety ;
that it was a direct and original undertaking to allow the payment, not ob-
noxious to the statute of frauds, and eo instanti it was made, extinguished
the notep-o tanto. Cole, use, ^-c. v. Justice, 793
4. A creditor is entitled to the benefit of all pledges or securities, given to
or in the hands of a surety of the debtor, for his indemnity, and tliis, whether
tlie surety is damnified or not, as it is a trust created for the better secu-
rity of the debt, and attaches to it. Ohio Life Ins. Co. v. Ledyard, &fc. 866
5. At a sale under execution of the principal's property, it is competent for
the surety to purchase, although the judgment and Jieri facias may be
against them jointly. Carlos, use. ^c. v. Ansley, 900
6. A notice which omits to point the creditor directly to the principal, whom
he is required to proceed against, or to the security, on which he is requir-
• > ed to proceed, is of no effect, either under the statute or at common law.
'i'ii^hehan v. Hampton , 942
INDEX. 1047
PRINCIPAL AND SURETY— continued.
7. The discharge of a surety, by means of flie statutory notice, must be plead-
ed specially. lb - 943
8. S, having a judgment against A, verbally agreed with him that he would
bid pfFthe land of A, subject to an agreement to be afterwards entered in-
to between them. Shortly afterwards they met, and ascertained the amount
due from A to S, including the note here sued upon, and it was tlien agreed
in writing, that A should have two years to pay the debt, by four equal
instalments, and tliat upon the payment of the debt, S would convey the
land to A. A failed to pay the instalments, and by consent of A, S sold
the land — Held that the verbal agreement was void under the statute of
■' frauds, and the written agreement void for want of consideration. That
it was a mere gratuitous promise, which S might have disregarded, and
brought suit immediately for the recovery of the debt, and therefore did
not exonerate the surety, ^gee v. Steele 948
See Chancery, 2.
See Constable and Surety, 1.
See Debtor and Creditor, 4.
See Limitations, Statute of, 5.
See Penalty, 1.
.See Pleading, 28.
•
PROMISE.
1. A promise by the maker, to an innocent holder of usurious paper, to pay
it, if indulgence is given, is binding on him, and may be enforced, if the
delay is given. Palmer, use, &fc. v. Severance and Stewart,, 53
2. A brother-in-law, wrote to tlie widow of his brother, living sixty miles dis-
tant, that if she ivould come and see him, he woald let her have a place to raise
her family. Shprtly after, she broke up and removed to the residence of
her brother-in-law, who for two yeass furnished her with a comfortable
residence, and then required her to give it up : Held, that the promise was
a mere gratuity, and that an action would not lie for a violation of it.
Kirksey v. Kirksey 131
3. A promise to pay a sum of money in Alabama bank or branch notes, is a
promise to pay in notes of the Bank of the State of Alabama or its branch-
es, and it is proper for a Court to charge a jury that such is the proper
construction, without evidence/)! the meaning of the terms used. Wilsen
v. Jones, 536
PUBLIC POLICY.
1.-^ Although the issuance of bills of a less denomination tlian tliree dollars
was prohibited, at the time when a contract for the loan of the bills of anc
1048 INDEX.
PUBLIC POLICY— CONTINUED.
unchartered association was made, yet the mere fact that bills for less
than three dollars were received, does not avoid tlie contract. McGthee
V. PoweU, 828
Sec Contract, 5. .
RECOGNIZANCE.
1. A recognizance, conditioned that the party charged will appear and an-
swer to the indictment to be preferred against him at a named term of the
Court, and not depart therefrom without leave, may be extended at any
subsequent term, if an indictment is preferred and found at that term. El-
lison V. The State 273
2. When the parties acknowledge themselves bound in the sum of $500, to be
levied severally and individually of their goods, &-c., respectively, this is
a joint and several recognizance, and not the several recognizance of each
of the parties for that sum. lb, 273
3. Under our statutes, which allow a scL fa. witliout setting out the recog-
nizance, the defendant is entitled to crave oyer of the recognizance upon
which the proceedings are based, and to demur if there is a varianue. lb. 273
See Amendment, 5.
Eec Enor, Writ of, 6.
flECORD.
1. The Circuit Court, independent of express legislation, has the power to
substitute a judgment, roll, or entry, when the original record is lost, and
the substituted matter becomes a record of equal validity with the origi-
nal. McLendon v. Jones 298
2. The manner of correcting the loss, is to show by affidavits, what the re-
cord contained, the loss of which is sought to be supplied. The substitu-
tion can only be made after a personal notice of the intention to move the
Court, and the notice must be sufficiently explicit to advise the opposite
"_ party of what is intended, as well as to enable him to controvert the affida-
davits submitted, lb 298
3. Where the genuineness of a copy of the proceedings of the Probate Court
' 6f a sister State are authenticated by the attestation of its clerk, thecerti-
ficate of the Judge to the official character of the clerk, and the formality
of his attestation, and the additional certificate of the clerk, in the terms
. of the law, to the official qualification of the Judge, its authentication is
complete, under the act of Congress of 1804, amendatoiy of the act of
1790. Kennedy v. Kennedy's odjn'r 391
RIPARIAN RIGHTS.
See Grants by acts of Congress, 2, 3.
See Land Titles South, 1.
INDEX. 1O40
RIGHT OF PROPERTY, TRIAL OF.
1> In claims interposed under the statute, to property which is levied on as
belonging to the defendant in execution, the bond required to be given
may be executed by those claiming the beneficial interest in theproperty^
as well as by him who is invested witli the title. Grahajii v. Lohkhart. 9
2. As the plaintiff in execution, if successful upon the trial of the fight of
property, is entitled to a return of the specific thing, which was delivered
to the claimant, or its assessed value, it is allowable for him to offer evi-
dence to the jury, to show what was its value at the time of the trial. Bor-
land V. Mayo. . * i . . i . ■. * . . . . » . i . . i . * 104
3. On the trial of the right of property, the consideration of the cause of ac-
tion on which the judgment was recovered, is not a matter in issue, yet if
evidence to this point has been admitted, at the instance of tlie plaintiff in
execution, a judgment in liis favor will not, for that reason, be reversed ;
unless it appear that the claimant was prejudiced by its admission. lb. 105
4. After a levy on property, and bond given to try the right, a junior execu-
tion cannot be levied on tlie same property, pending, the trial. An exe-
cution issued on an elder judgment, but which heis lost its lien, by the lapse
of a term, will be postponed to one issued on a younger judgment) during
such interval. Hobson v. Kissam &c Co. d al >, 357
5. Upon a trial of the right of property, the fact that an execution from the
Federal Court had five years before beeil levied on the same property, and
bond given to try the right, raises no question, until it is shown tliat the
trial is still pending, although the levy of such execution was first made.
lb 357
6. Quere : Where several levies are made upon the same property at the
same time, and several trials of the right are had, if upon verdict of con-
demnation, the jury assess the full value of tlie property, in each case, and
judgments are rendered accordingly, is it not competent for the Court in
which the trials are had, to correct its judgment, so that tlie claimant may
■ not be charged beyond the value of tlie property ? Ansley v. Pearson, et
aU 432
7. When a claim is interposed to property levied on by attachment, the
claim suit is wholly independent of the attachment suit, at least so long
as it is pending. If the claim suit is determined against the claimant, the
proper judgment is a condemnation of the property, viz : that it is subject
to the levy of the attachment, and may be sold to satisfy the judgment in the
attachment suit, if one then exists, or is afterwards obtained. No execu-
tion can issue upon this judgment, except for the costs ^of the Claim suit.
Seamans, et al. v. White 656
6. The assessment by the jury in the claim suit, of the value of the property
levied on, is mere surplusage, and does not vitiate, lb 656
132
1050 INDEX.
RIGHT OF PROPERTY, TRIAL OF— co.xtinued.
9. When, by order of the Court, new securities are substituted for those ori-
ginally given in a claim suit, the former are discharged. lb 657
10. When a slave is levied on at the suit of three creditors, and is claimed by
a stranger, who executes a claim bond to the junior execution only, and
that ci-editor alone contests the title with the claimant, and succeeds in
condemning the slave, the other creditors have no right to claim the money
which he receives from the claimant, in discharge of the claim bond. Bur-
nett V. Handley 685
11. A stipulation in a trust deed, to secure the payment of certain debts, pro-,
viding that the debtor shall remain in possession of the property until a
named day, and afterwards until the trustee should be required, in writ-
ing, by his cestui que trust, to proceed and sell, does not extend tlie law
day of the deed beyond the time fixed for the payment of the debt ; and
if a levy is made after that time, by a creditor, the trustee may protect tlie
property by interposing a claim under the statute. Marriott ^ Hardest]/,
et al. V. Givens 694
12. When personal property is improperly levied on, the party claiming it
cannot enjoin tlie creditor from proceeding at law, on the ground tliat an-
other person has interposed a claim to it by mistake. The true owner has
an adequate remedy at law, by suit, or by interposing a claim under the
statute. lb '. 694
13. After the determination of a claim suit against a trustee, his cestui que
trust is not entitled to re-examine the qilestion of title, on the ground that
he was a stranger to the claim. lb 694
14. Where a surety against whom, with the principal, a judgment is rendered ,
points out the property of the latter to the constable, and upon its being
levied on and offered for sale, produces a mortgage on the same property,
executed by the principal for his indemnity, and forbids the constable to
sell, in consequence of which he purchased the property at about one eighth
of its value : Afterwards a Jleri facias against the principal upon another
judgment was levied on the same property, a claim interposed by the sure,
ty, and an issue made up to try the right : Held, that the bona fides of the
claimant's purchase should have been referred to the jury, and if found
against him, the property should be subjected to the plaintiff's execution.
Carlos, use, &fc. v. Ansley. 900 -
See Chancery, 9, 12.
See:^iTor, Writ of, 13.
See Evidence, 20.
See Trust and Trustee, 3. ^
INDEX. * 1051
SALjlS. .
J . A purchaser at sheriff's sale, who refuses to comply with the conrract of
purchase, is liable to an action by the sheriff, and the right to recover the
full price cannot be controverted, if the sheriff, at the time of tlae trial, has
the ability to deliver the thing purchased, or if that has been placed at tlie
disposal of the purchaser by a tender. The loss actually sustained by the
seller, is, in general, the true measure of damages when the purchaser re-
fuses to go on with the sale. Lamkin v. Crawford. 153
2. When the sheriff has re-sold the thing which the first purchaser has re-
fused to pay for, there is an implied contract by tlie first purchaser to pay
tlie difference, which is thus ascertained between his bid and the subse-
quent sale ; and a count upon a contract to pay the same, is good. lb. 153
3. Where a sale is made by private individuals, the same rule does not apply,
and in such a sale, to let in a recovery of the difference between the sales,
it must appear that the one last made, was under such circumstances as
will indicate that a fair price has been obtained. lb 154
4. There is, however, an exception to the rule, that the sheriff may recover
the difference between the sales, and that is, when the first purchaser is
himself the owner of the property sold, as the defendant in execution, or
from having purchased itfrom*the defendant in execution, after its lien has
attached. In such a condition of things, the surplus, after satisfying the
execution, belongs to the party purchasing. lb 154
5. It is no defence to an action by the sheriff, against a purchaser refusing
to go on with the sheriff's sale, that tlie thing purchased was not the pro-
perty of the defendant in execution. That is a mktter to be ascertained
by the purchaser previous to bidding, and cannot be urged against an ac-
tion for the price. Quere — If relief could not be afforded by the Court
upon a proper application. lb 154
6. " Received of J. & S. Martin $256 97, for a negro boy named Bob, aged
about forty years, which I warrant, &c., given under my hand and seal,
this 19 December, 1841. S. Bogan, (Seal.)
Endorsed, " It is further understood, that if the said S. Bogan, shall well
and truly pay to the said J. & S. Martin, the said sum of $256 97, within
four months from this date, the said Bogan is to have the liberty of re-pur-
chasing the said boy Bob. It is" also understood, that if the said boy Bob
should die within the said term of four months, he dies the property of the
said Bogan, and the said Bogan in that event, is to be justly indebted to
the said J. & S. Martin, in the said sum of $256 97,
J. & S. Martin.
S. Bogan."
Held, that the legal effect of this instrument, taken altogether, was, that it
was a conditional sale of tlie slave, with the right to re-purchase. That
1052 INDEX.
SALES C ONTINUED,
the right to the slave vested immediately in J. & S. Martin, subject to be
divested by the re-payment of the purchase money in four months. That
the instrument did not, on its face, import an indebtedness from Began to
the Martins, but if the slave died, or if Began sold him to a third person,
J. & S. Martin could recover in assumpsit, tlie amount specified as his
purchase money. Bogan v. J. Sf S. Martin, 807
SALES UNDER ORDER OF COURT.
1. The Orphans' Court ordered that an administrator, who made, what was
supposed an imperfect report upon the sale of real estate under its decree,
should be committed, until he made one more perfect ; a report was ac-
cordingly made : Hdd, that the order of commitment, whether erroneous
or not, furnished no-ground for the decree which directed the sale. Evans,
Adm'r \. Mathews '. 99
2. An equitable title may be sold under a decree of the Orphans' Court, and
the purchaser will stand in the same predicament, as to title, as the heirs
did. lb 100
See Orphans' Court, 2.
SCIRE FACIAS.
1. Under our statute, which allows a sd./a. without setting out the recogni-
zance, the defendant is entitled to crave oyer of the recognizance upon
which the proceedings are based, and to demur if there is a variance. El-
lisonv. The State. . : 273
SET OFF.
1. C. borrowed the bills of an unchartered banking company, from oneL. as-
smning to act as its President, and gave his note for the same amount, paya-
ble at a future day, with M. as his surety. The bills received, were the bills
of the company, and made payable to S. Jones, or bearer, but not assigned.
The note given was payable ninety days after date, to L. or order. After
the note became due, C. procured other bills of the company, and went to
the place where it transacted business, but found no one there to receive
payment, or give up the note. The company was composed of L. and S.
chiefly, and if of others, they are unknown. L. and S. botli absconded from
the State soon after, and are entirely insolvent Afterwards, suit was com-
menced intlie name of the administrator of L., for the use of one MUIer
against C. and M., who being unable to succeed in making any defence at
law, a judgment w^as recovered. Afterwards an execution upon it was
•levied on the property of M., in common with otlier executions, and his pro-
perty sold. A case was made between the several plaintiffs in execution,
and the sheriff selling the property, to deternvine the priority of the execxi-
INDEX. 1053
SET OFF— CONTINUED.
tions, and such proceedings had, that the administrator of L. recovered a
judgment for the use of Miller, against the sheriff and his sureties. C. filed
his bill, setting out these facts, insisting tliat the company was Oontrived
and set on foot to defraud the public — that the death of L. was merely sim-
ulated, to enable the other parties to carry their fraudulent plans into effect ;
that the note yet remained the property of the company, and that in equity,
he was entitled to set off tlie notes held by him, and to enjoin tlie collec-
tion of the judgment against tlie sheriff, as C. would have to reimburse M,
if that was paid. The defendants demurred to the bill for want of equity,
and this demun-er being overruled, admitted all the facts stated to be true,
if they were well pleaded. Hdd —
1. That suit being in the name of the administrator of L., the notes held by
C. against the company were not legal off sets, and tliat on this ground
there was relief in equity.
3. That the circumstance that the notes were held by C. when the judgment
was obtained, or suit brought against C. and M. did not take away the equi-
ty, as M. was a surety only.
3. That C. being entitled to his relief sgainst the parties to the judgment at-
law, it extended also to defeat the recovery against the sheriff, as without
this, the relief would be of no avail.
4. If the original transaction between C. and the company was illegal, it does
not defeat C.'s right to set off the other bills afterwards procured by him.
5. \lJp»n tlie petition for re-hearing.] That although C. might have defeated
the suit at law, by pleading that L. was yet alive, or by showing that the
suit was collusive, and that the interest in the note sued on then belonged
to the company, yet his omission to do so, was no bar to relief in equity.
The suit being in the name of the administrator of L., C. is entitled so to
consider it, and it is no answer to tlie complainants to say, that by show-
ing anotlier state of facts he could have had relief at law. Clmndler and
Moore. V. Lyon, et al 35
2. Where a justice of the peace receives money in his official capacity, he
cannot detain it in satisfaction of a debt due him, in his private capacity,
or when sued for its recovery, plead a set off against it. Loivriev. Stew-
' art, J63
3. R. being indebted, by an open account, to an incorporated Rail Road
Company, the latter assigned the debt to one S., to whom the Company was
largely indebted, and by whom suit was brought against R., in the name
of the Company, and a judgment obtained thereon. Pending the suit
against him, R. paid for the Company a large debt, as its surety, which debt
existed previous to the assignment, by the Company to S. Held, that as
the Company was insolvent, at the time of the assignment to S., of the
1051 INDEX.
^ET OFF— CONTINUED.
debt of R., tlie latter could set off in equity, the money he had paid for the
Company, against tlie judgment obtained by S. Tusmmhia, Courlland
and Decatur R. R. Co. d al. v. Rhodes 20C>
4. A set off cannot be pleaded to an action for unliquidated damages, aris-
ing out of the breach of a contract, in refusing to permit the plaintiff to
perform services which he had contracted to perform. George v. Cuhmcba
and Marion Rail Road Co 234
5. When the plaintiff declares in assumpsit on one count for unliquidated
damages, also on the common counts, to which the defendant pleads a gen-
eral plea of set off, upon which issue is taken, ai;d offers evidence to sus-
tain this plea, it is error in the Court to instruct the jury, that the action
was subject to, and could be set off, as the effect of such a charge is to pre-
clude the jury from finding a separate verdict upon the different counts,
which would enable the plaintiff to remedy the mispleading. Jb 234
6. The assignment of an account by the party to whom it purports to bo due,
and testimony that he (having since died) kept correct accounts, does not suf-
ficiently establish its justness to authorize the assignee to set it off to a suit
in equity against him, brought by the person charged with it. Dunn v.
Dunn, 784
7. Altlaough tlie vendee of land, with whom tlie vendor has covenanted that
the estate is free from incumbrance, has a right to extinguish outstanding
incumbrances to perfect his title, yet the amount thus paid will not be al-
lowed as a set off'm an action for the purchase money, nor will it avail the
vendee atlatv, under tfie' plea of failure of consideration. Cole, use, Sfc. v.
Justice, 793
8. Where the defendants remitted a bill, indorsed by them, to a correspon-
dent house, to whom they were tlien indebted, with instructions to credit
them in account, and that house procured the bill to be discounted, and
credited the remitters with the proceeds, and advised them of the facts ;
these circumstances constitute a sufficient consideration for the indorse-
ment, to enable the correspondent house to maintain an action on the bill,
when subsequently paid by them as indorsers, against the remitters. —
Sheffield^- Co. v. Parmlee, 889
9. And a holder to whom this house indorsed the bill, after its maturity, and
subsequent to its being taken up by them, is not affected by a set off
then held by the defendants against their correspondents. lb 889
JO. When husband and wife join in action, upon a promise made to the wife,
neither a debt due by the wife after marriage, a debt due by the husband
alone, or a debt due by husband and wife jointly, can be pleaded as a set
off. Morris V. Boothand Wife 907
INDEX. 1055
SHERIFF AND HIS SURETIES.
1. The act of 1815, requires the county treasurer to proceed against delin-
quent sheriffs, &c., for tlie recovery of fines, &c.; consequently it is not
competent for the Court in which the judgment was rendered, to institute
the proceeding against the sheriff, rmro motu. Hodges v. The State^. . .56
2. Where the plaintiff, in a summary proceeding for the failure to pay over
money collected hy a sheriff, on a, fieri facias, recovers a verdict andjudg-
Tnent for the amount of the damages given by statute, as a consequence of
the sheriff's default, and no more, tlie defendant cannot object on error,
that tlie verdict should have been for the amount of the f. fa. also. Jll-
ford V. Samvel 95
3. The sheriff is a mere executive officer, and is bound to pursue the mandate
of the process in his hands, unless otherwise instructed by the plaintiff on
record, or his attorney. But he cannot defend a rule for not making the
money, on the ground that the plaintiff liad agreed with tlie defendant to
set off a debt, when he has received no instructions from the plaintiff or
his attorney to that effect. Crenshaw v. Harrison, 342'
4. A sheriff who has lawfully seized slaves under an attachment is not liable
in an action of trespass, if he refuse to permit the defendant to replevy them^
altliough a valid bond, with sufficient sureties may be tendered. Walker
- v. Hampton, et al 412
5. A sheriff who has duly seized goods, under legal process, has a special
property in them, and should provide for their safe keeping. Where a
mode is provided by statute in which this may be done, and the appropri-
ate bond is taken, the officer is relieved from the obligation to keep it ; but
where the statutory bond is not offered, he may provide some other custo-
dy— either retain the possession himself, or commit it to a bailee ; and if
the bailee execute a bond, it will be obligatory, although the plaintiff will
not be bound to accept it in lieu of the officer's responsibility. Whitsett v.
JVomack, use, fyc. 466
6. A bond which the declaration alledged was made payable to a sheriff
did not state in totidem verbis, tliat he was such officer : Held, that the un-
dertaking in the condition, that the obligors should perform it to the obli-
gee, or his successor in the office of sheriff, sufficiently indicated his offi-
cial character. Qitcre? Would not the bond be prima facie good, so as to
devolve the onus of impeaching it upon the obligors, though it had omitted
to show who the obligee was, otherwise than by stating his name. lb. 467
7. Quere7 Would a bond taken by a sheriff, who had seized a boat under pro-
cess issued upon a libel in nature of an admiralty proceeding, be void be-
cause he agreed that the obligors might navigate it to a point not very re-
mote, and unlade its cargo, as the master had undertaken to do. Or would
not the obligors be estopped from setting up such an agreement to impair
their obligation ? lb 467
1056 INDEX.
SHERIFF AND HIS SURETIES— continued.
8. The obligors stipulated to deliver to the sheriff at a place designated, a
boat which he had seized under legal process, on demand, if a decree of
condemnation should be rendered against it — the sheriff " having execu-
tion then against :" Held, that the bond did not contemplate a demand at
any particular place ; and that the form of the execution which tlie sheriff
held when he made the demand, was immaterial ; if it was one which war-
ranted the action of the sheriff against the boat • 467
9. Parties who have entered into a bond as the bailees of property that had
been levied on by a deputy sheriff, cannot object that tlie deputy tran-
scended his J)owers, where the sheriff himself instead of objecting, affirms
the act. Ih 467
See Amendment, 1, 2.
See Damages, 3.
See Execution, Writ of, 3.
Sec Executors and Administrators, 14.
See Summary Proceedings, 3.
SLANDER.
1. The Registers and Receivers of the different land offices, are constitutecl
by the acts of Congress, a tribunal to settle controversies relating to claims
to pre-emption rights, and tlierefore an oatli administered in such a sontro-
versy before the Register alone, is extra judicial, and as perjury cannot be
predicated of such evidence, an action of slander cannot be maintained for
a charge of false swearing in such a proceeding. Hall v. Montgomery. 510
2. An accusation of perjury implies within itself every thing necessary to
' constitute the offence, and if the charge has reference to extra judicial tes-
• timony, the oniis lies on the defendant of showing it It is not necessary
in such a case to alledge a colloquium, showing that the charge related to
material testimony in a judicial proceeding. Tb 510
SLAVES.
1. The offence of inveigling, or enticing away a slave, is consummated when
the slave, by promises or persuasion, is induced to quit his mEister's service,
witli the intent to escape from bondage as a slave, whether the pereon so
operating on tlie mind and will of the slave, is, or is not present when the
determination to escape is manifested, by the act of leaving the master's
Service, or whether he is, or is not sufficiently near to aid in the escape, if
necessary. 'M.ooney v. The State, 328
• See Evidence, 30, 31.
Sec Criminal Cases. &c., 5.
INDEX. 1057
STATUTES.
1. It is competent for the clerk of a Circuit Court to issue a writ of error to
remove to this Court, a cause in which a final judgment has been rendered
. upon a forfeited recognizance, or for a fine or penalty, without a previous
order for that purpose. Hodges v. The State 55
2. The act of 1815, requires the county treasurer to proceed against delin-
.j, quent sheriffs, &c-., for the recovery of fines, &c.,- consequently it is not
competent for tlie Court in which the judgment was rendered, to institute
the proceeding against the sheriff, mcro motu. ' Hodges v. Tke State,. . .56
3. The statutes of tlie State, unless otlierwise expressed, take effect from
their passage, and an act done in the county of Clarke, on the day aflertJie
I passage of the law, will be governed by the statute, although it was impos-
sible it should have been known there. Br. B'k. Mobile v. Murpky,. .119
4. The statute which gives a writ of error or appeal from all judgments, or
' final orders of tlie Orphans' Court, does not take in cases in which neither
'i Writ of error or appeal could be taken, by the course of practice in the
Courts of the civil or common law. " Watson and wife v. May 177
5. The act of the 9th of December, 1841, "For the better securing mechan-
ics in the city and county of Mobile," which provides a summary and ex-
traordinary remedy, where the work shall be done towards " the erection
or construction of any building," in that city or county, by a journeyman,
laborer, cartman, sub-contractor, &c. cannot be construed to give the re-
medy, provided, to one who has laboured under employment by a sub-con-
tractor. Turcott V. Hall. •. ." 522
^' See Alien, 1.
• Constitutional Law, 2.
See Criminal Cases, Proceedings in, 13.
See Deeds and Bonds, 2, 3.
See Escheat, 2.
Sec Insolvent Debtor, 1, 2, 3.
See Land Titles South, 1. •
See Partners and Partnership, 11.
See Practice at Law, 3.
See Riparian Rights, 1.
See Witness. 2.
■1
SUMMARY PROCEEDINGS.
1. A notice for judgment, by motion, made by one assuming to be President
of the Bank, is sufficient, whether he be President of the Bank, dejure, or
not, if the act is adopted by his successor, who is legally President of the
Bank. Blachnan v. Branch Bank at Mobile 103
2. To authorize a judgment against a surety of a non resident plaintiff for
133
1058 INDEX.
SUMMARY PROCEEDINGS— coNTiNTED.
the costs of the suit, it must appear affirmatively upon the record, that the
Suit was commenced hy a non-resident — that the person sought to be charg-
ed became surety for the costs — and the amount of the costs of the suit.
No notice to tlie surety is necessary. Martin i). Avery.. 430
3. In a summary proceeding against a sheriff and liis sureties, trhere the
judgment is by default, it must appear affirmatively oh the record, that the
sheriff has had three days notice of the motion, or the Court must refer to
the notice as proof of notice to the sheriff ; and a notice found in the tran-
script will not be loolced to for the purpose of supplying the defect, al-
though a jury has ascertained that all the facts therein stated are true. —
Jlllums, d al. v. Hawley, 584
SUPERSEDEAS.
1 . In settling the accounts of a guardian, it is not competent for the Orphans'
Court to render a decree against his sureties; and such is not the effect of
a decree, which declares that a guardian and his sureties, (without desig-
nating them by name) shall be charged with the amount ascertained to be
due, and made liable to the administrator of his ward, " for whic h he is
authorized to proceed in the collection according to law ;" such a decree
does not impair Uie rights of the sureties to make them parties. And if an
execution issue against the sureties it may be arrested by supersedeas, and
quashed, but tlie sureties cannot join the guardian in prosecuting a writ of
error to revise the decree. TreadweU, Gurdian, fyc. v, Burden, adm'r. 661
2. Where a defendant in execution sets up liis discharge and certificate as a
bankrupt, by a petition, upon whichn. supersedeas is awarded, it is competent
for the plaintiff to impeach tlie same for any of the. causes provided by the
act of Congress of 1841, and make up an issue to try the facts. Mabry,
Giller ^ Watker v. Herndon 849
TAXES.
1. The Judge of the County Court has no power to adjudicate upon the tax
list, and ascertain the amount of insolvencies for which the tax collector is
entitled to a credit, except at the time provided by law, viz : the second
Monday m September of the current year, or at the succeeding County
Court, if the special Courtis not held. Treasurer of Mobile v. Huggins, 440
2. Upon the failure of the County Judge to act, the power conferred upon the
Comptroller to make the allowance, may be exercised by the Commission-
ers' Court, upon the County tax collected during the period when State
taxation was abolished. lb 440
TENDER.
See Contract, 4,
INDEX. 1059
TRUST AND TRUSTEE.
J^The admissions of a trustee having no beneficial interest in the property
• conveyed to him, cannot be given in evidence to defeat a deed of trust ex-
ecuted solely for the benefit of others. Gralmm v. LockhaH 10
9. The trustee, after tlie time fixed for payment by the terms of a trust deed,
is invested with the legal title, and at law, is the proper party to contest
the legal sufficiency of tlie deed, and a verdict for or against him, if ob-
tained without collusion and fraud, is binding and conclusive on his cestui
que trust. Marriott Sf Hardesty, et cd. v. Givens .'.... G94
3. After the deteraiination of a claim suit against a 1j*ustee, his cestui que
^ trust is not entitled to re-examine the question of title, on tlie ground tliat
he was a stranger to tlie claim. lb G94,
See Assumpsit, 4.
Sec Deeds of Trust, 6.
See Evidence, 5.
Sec Gift, 2. .
USURY.
1. When a defendant is offered as a witne^, to prove usury, he cannot be
confined in his testimony to the instrumem upon which the suit is brought,
but may prove other transactions connected witli it ; as tliat other notes
• existed, which have been cancelled, the consideration of which entered in-
■: to, and formed a part of the note sued. Palmer, use, Sfc. Severance and
Stewart .53
2. A promise by the maker, to an innocent holder of usurious paper, to pay
it, if indulgence is given, is binding on him, and may be enforced, if the
delay is given. lb 53
VARIANCE.
1. Semble ; where the declaration states that Frederic W. C. made his pro-
missory note, &c., und the note offered in evidence was made by F. W.
C, it is sufficiently described to make it admissible evidence. Chandler
V. Hudson, use, Sfc. 306
2. In a suit by an indorsee against his immediate indorser, on a note pur-
porting to be made by G. & B,, in liquidation, by W, B., it is no defect if
■the latter words are omitted in tlie declaration, nor can the note be ex-
cluded on the ground that it varies from that declared on. Jtigp^s v. An-
drews^ Co 628
3. When a motion is made against a sheriff, a variance between the Ji. fa.
described in the notice, and the one produced in evidence, cannot be aided
by the production of tlie origmaX Ji. fa., wliich corresponded with the no-
tice, tlie mo^n being made upon an alias. Walker, etalsv. Tvmipseed, 679
VENDOR AND VENDEE.
I. Where the vendee of land pays to the vendor the purchase money, or a
part of it, and receives of the latter a deed of conveyance, the deed, in a
1060 INDEX.
VENDOR AND VENDEE— CONTINUED.
controversy between the parties, is admissible to show the amount of t)*
purchase money. FitzpatricKs Adm^r v. Harris, 32
2. Semblc: A derivative purchaser, without notice, cannot be affected by a no-
tice to his immediate vendor ; and if he purchases with notice, he may pro-
tect himself by the want of notice in such vendor. Horton v. Smith, 74
3. Where an absolute sale of personal property is made, there must be an
actual Ifonajide deliveiy of the same to the vendee, in order to give a title
as against the creditors of the vendor, or some special reason or excuse shovm
for the retention of the possession hy the latter; and the fact, that the vendor
was the son-in-law of the vendee is not a legal excuse. Borlandv. Mayo, 105
4. In cannot be intended that the vendor was aware of tlie vendee's insolven-
cy, merely because he purchased all his estate on long credits. lb. 106
5. When evidence is given to show, that the condition of the indorsement
of a note, was the sale of lands, and proof is also given, that the lands had
been patented to anotlier, whose heirs were suing the defendants for a re-
coveiy, the evidence of tlie patent and suit may properly be excluded from
the jury, unless an eviction isjJso shewn. Tankersly v. Graham, 247
6. When lands are sold, and a bond for titles given by the vendor, to the
purchaser, and notes with sureties given for the purchase money, the sure-
ties are not discharged, in consequence of the title being conveyed by the
vendor, without payment of the notes. Woodward, et al. v. Cltgg,. . . .317
7. A purchaser of land, who with knowledge of an existing incumbrance
proceeds to execute the contract in part, as by taking possession, he will
be required to execute it in full, and a fortiori will not be allowed to re-
scind it. Bamett v. Gaines and Toivnsend, 373
8. A right of dower is an incumbrance. Ih 373
9. An undertaking in writing, by the defendant, to pay tlie plaintiff, as agent,
several distinct sums of money, for a consideration therein expressed, at
definite periods, provided tlie titles which the plaintiff, as agent, executed
to huB for a tract of land, were " good and sufficient," is a promise, subject
to the condition expressed ; and it is competent for the defendent, when
sued for the money, to prove that the titles were not such as the condition
contemplated. Whilehurst, use, Sfc, v. Boyd,, 375
10. Where p, promissory note recites tliat titles to the land had been execut-
ed by the vendor to the vendee, and undertakes to pay the purchase money
if the title was good and sufficient, it is not enough that the conveyance
be in due form; but the vendee may defeat a recovery if the title itself he
not such as is provided for by the contract, lb 375
11. Where the contract of the parties requires tliat a deed, simjjltaneously ex-
cuted, should convey a good title as a condition to tlie payment of the
purchase money, the vendee, when sued, may plead that the title is in a
third person. lb , -U jr:A-SA'i!.V5?i«,Vi't',r<f,: :fi V ' '^^^
INDEX. mi
VENDOR ANO VENDEE— continued.
12. When a vendee is in the occupancy of land, which the vendor afterwards
sells to anotlier, to whom he transfers tlie evidence of legal title, the sub-
sequent purchaser is charged with notice, and will be considered as hold-
ing the legal title as a trustee for the first vendee ; but is entitled to be re-
imbursed money expended necessarily in completing tlie legal title. Scrog-
gins V. McDougald, et al 382
13. Although the vendee of land, with whom tlie vendor has covenanted that
the estate is free from incumbrance, has a right to extinguish outstanding
incumbrances to perfect his title, yet the amount thus paid will not be al-
. lowed as a set off in an action for the purchase money, nor will it avail the
vendee at law, under the plea of failure of consideration. Cole, use, Ifc'v.
^Justice 793
14. One who purchases at a sale made by order of tlie Court of Chancery, fore-
closing a mortgage, without notice of a prior unregistered deed, is a pur-
chaser for *a valuable consideration, witliin tlie meaning of our registry
acts. Ohio Life Ins. Co. v. Ledyard, 8GG
15. Ccnraiercial paper, received as an indemnity for existing liabilities, is not
transferred in the usual course of trade'between merchants, so as to ex-
empt it from a latent equity existing between tlie original parties. Jln-
dretos Sf Bros. v. McCoy, H !>20
16. A vendor of land, took several negotiable notes for the payment of the pur-
chase money, one of which was negotiated in the usual course of trade,
the others were not. Held, that anhough the holder of Uie note so nego-
tiated, was not subject to an equity existing against the vendor, such equi-
ty could be enforced against tlie holders of the other notes, and tiiat tlie
vendor could not be required to apportion the loss, lb !>2l
See Consideration, 1.
See Debtor and Creditor, 5, 6. •
See Evidence, 10.
See Execution, Writ of, 2.
See Executors and Administrators, 12.
See Fraud, 4, 5, G.
See Mortgagor and Mortgagee, 2.
See Practice in Chancery, 16.
See Principal and Agent, 1. ^
See Sales, 1, 2
See Warranty, 1.
VERDICT.
1. A verdict and judgment in the following words, to wit: "\^ the jury,
find for the plaintiff. Upon which judgment passed for tlic plaintiff, for
the premises, and that defendant, George L. Huftaker pay all costs," thougli
#
1062 INDEX.
VERDICT— CONTINUED.
not formal, does not authorize a reversal of the judgment on caiiorari. Huf-
faJcer v. Boring, 8B
2. As soon as the fact was disclosed that the infant distributee was repre-
sented by the executor, the parties^ were complete, and the Court should
have proceeded to render judgment on the former verdict; which, under
these circumstances, it was irregular to set aside. Sankeifs Ex'rs v. San-
key's Distributees G02
See Sheriff and his Sureties, 2.
WARRANTY.
1. A counter bond, taken by the vendee, from the vendor, with surety to in-
demnify him against the mortgage, will not be considered a compensatiq^
or satisfaction for abroach of the warranty ; and if tlie vendor, and securi-
ties in such bond of indemnity, become insolvent, and there is an evic-
tion under the mortgage, equity will relieve the vendee from tlie pay-
ment of the purchase money pro tanio, against the vendor or his assignee.
Andrews Sf Brotliers v. McCoy 920
See Vendor and Vendee, 13.
See Chancery, 38.
WILLS AND PROBATE OF.
1. A testator declared in his will, that certain property " shall be equally di-
vided between my motlier and my t\^ sisters, H. and M." Held, tliat the
meaning of the will was, that each was to have one third part. Duffee,
AdvtUr V. Buchanan and Wife 27
2. After a will has been admitted to probate, letters testamentary granted
thereon, and proceedings had thereon to a final settlement of the estate, the
propriety of the prdBate of tlie will, cannot for the first time be raised in
this Court. Bothwell, et al. v. Hamilton, Adm^r 461
3. When by a 'will, a life-estate is given to the wife in all the property of
the deceased, with remainder to the children, and the will is proved, and
admitted to record, the Orphans' Court has no power to make distribution
of the property during the life-time of the wife. Such a distribution, made
durinw the life of the widow, and at her instance, or by her consent, is not
the act of the Court, but is in effect a gift of her life-estate, and no matter
how unequal it may be, will not prejudice the interests of those in remain-
der. 76 461
4. The testator bequeathed by his will to his children who were married, or
had attained their majority, property estimated at $1,190 ; the same amount
to his jBfcnger children " in negro property," when they became of age ;
and to his younger daughters the same amount, in the same description of
property, when they became eighteen years of age, or married. After
tirhich the following clause was added : " It is my will, that all the proper-
INDEX. 1063
WILLS AND PROBATE OF— continued.
ty that is not willed to nff children, viz: negroes, lands, stock of nil kinds
farming utensils, household and kitchen furniture, or all of my remafning
effects that is now in my possession, I give unto my wife, E. S. during her
natural life, or widowhood, and at her death or intermarriage, then all the
property willed to her, to be sold, and equally divided amongst my above
named children. E. S. intermarried witli T. G., and eighteen months
•from the grant of letters testamentary having expired, the husband of one
the testator's daughters, presented his petition to the Orphans' Court, pray-
ing that a rule be made upon ||ie executor, requiring him to sell and dis-
tribute tliat portion of the testator's estate, which was bequeatlied toE. S.
during her life or widowhood : Held, tliat the estate in the hands of the ex-
ecutor above what was necessary to provide for tlie legacies was subject to
jdistribution, if the demands of Hie creditors have been satisfied, or after
retaining enough for the payment of debts; the terms of the decree should
be such as will most certainly effectuate the intentions of tlic testator, and
give to the children equal portions. Broadnax v. Sims' Ex'r 45)7
5. A will of lands may be admitted to probate on the proof of two of the sub-
scribing witnesses, upon the additional proof that tlie other Avitness resides
out of the State, and that he also subscribed his name as a witness by the
direction of the testator, and in his presence, notwithstanding the will is
contested by the heir at laAF. Bowling v. Bowling, Ex'r. 5138.
G. An opinion of a witness, tliat a testator was insane attlic time of making
his will, is not competent testimony, he admitting at tlie same time, tittt
he knew no fact or circumstance on which his opinion was founded. Ih. Mo
7. A will by which a testator charged his children with tlie debts tlicy owed
him as a part of tlicir portion, except one child, whose debts were not men-
tioned, does not raise tlie presumption tliat such debts were released, tlia
evidences thereof being retained by him uncancelled. Sorrell v. Craig. 50(>
See Legacy, 1, 2. /
WITNESS.
1. When, by the teims of a written contract, money is to be paid to one, as
. the agent of a. feme covert, tlie husband is not a competent witness to sustain
the contract in a suit by the agent to enforce payment. Ultr v. BnforiL KM
2. The act of 1839, which provides that in suits upon accounts, for a sum not
exceeding one hundred dollars, tlie oath of the plaintiffshall bo received
as evidence of the demand, unless the same be controverted by tlie oatli of
the defendant, does not make tlie defendant a competent wiUicss to bo
sworn generally, and give evidence to the jury. Hayden v. Boyd, . . .323
3. In detinue ag«nsta sheriff, for a slave seized under execution, as belong-
ing to the defendant in execution, tlie latter is not a competent wiUicss for
the sheriff to prove property in himself. Leiper v. Gewin, '326
1064 INDEX.
WITNESS— CONTINUED. •
4. Semhie; that a father who has settled property upon trustees for the ben-'
efit of his daugliter, is a competent witness for the trustees in a controver-
sy between them and the creditor of the husband, who is seeking to sub-
ject it to the payment of the debts of the latter. O'JVeil, Michayx &f Thom-
as V. Teagut and Teague 345
5. Where three persons are sued as partners, upon an open account, in as-
sumpsit, one against whom a judgment by default has been tq,ken, is a
competent witness to prove tliat one of the defendants was not a partner,
lie having pleaded the general issue. Goodcn ^- McKee v. Morroio if Co. 48G
6. A partner, or joint promisor, who is notfued, is a competent witness for
his co-partner, or co-promisor, where he is required to testify against his
interest ; and where such evidence is witliin the scope of the issue, the
Court should not assume his incompetency, p.nd reject him in limine. An-
derson V. Snoio if Co 504
7. Where a party offers a witness who will be liable oyer, if he is unsuccess-
ful, he cannot divest the witnesses interest, and make him competent, by
depositing with the clerk a sum of money equal to what would be tlie
amount of the recovery against him. The common law or statute, neither
' confer upon the clerk of a Court, virtute ojficii, the authority to receive mo-
ney which may be recovered upon a suit afterwards to be brought ; and
such payment cannot be pleaded in bar of an action. Ball v. The Bank of
■ the State ofJllahama 590
8. It is competent to inquire whether an account against a party was not
charged to hitn by his directions, and whether it is correct, audit is allowa.
1)le for the witness to answer that it was copied from tlie defendant's books,
and believed to be correct. Straivhridge v. Spann 820
9. Where a witness testifies as to work and labor done, and money received,
for which the plaintifFis seeking to recover, it is competent to inquire wheth-
er other work had been done, or money received. Such a question, thougli
it directs the attention of the witness that he may state tlie facts fully, can-
not be said to be leading. lb 821
JO. Where a witness denied that in a certain transaction which was drawn in
question, he acted as the plaintiff's agent, it was held competent to prove*
in order to impair the effect of his testimony, that he had made contradic*-
tbry statements upon other occasions. lb 821
11. The transferor of a chosein action, is an incompetent witness for the trans-
feree, in a suit brought by him for its recovery; and it seems that a release
would not restore his competency. Houston, AdnCr v. Preicitt, .... 846
12. A bankrupt who had transferred bills of exchange as collateral security,
to one of his scheduled creditors, is an incompetent witness for tlie creditor,
because the discharge of the debt by the bills, would reWase the estate of
the bankrupt from its payment, and increase the surplus. lb 846
Attorney at Law, 2.
See Evidence, 1.
&:^.i^^--^^^^^^^
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