UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY
Faculty library
DENNIS & CO.. INC.
Law Book Publishers
251 MAIN STREET
REPORTS
I
OF
CASES AT LAW AND EQUITY,
ARGUED AND DETERMINED
IN THE
SUPKEME COURT OF ALABAMA,
DURING PART OF JUNE TERM, 1844, AND PART
OF JANUARY TERM, 1845.
BY THE JUDGES OF THE COURT.
VOLUME VII
NEW SCRIES.
PRINTED BY JOHN M'CORMICK.
1845.
*
A TABLE
OF
CASES REPORTED IN THIS VOLUME.
Adams and Nail, 475
Alexander, et al, v. Fisher, 514
Alexander, et al. Adm'r v. Knox &.
Co., 503
Allen v. Claunch, 788
Allen & Falconer and Litchfield,
use, &c.
Allen and Loomis, Adm'r,
Alston v. Coleman, et al. 795
Anderson v. Rhea,
Armistead's Ex'rs and Smiih, 698
Armstrong, use, &c. and Thompson, 256
Auld, Ex'r, and Wilson, 302
Austill &, Marshall v. Crawford, 335
Badger v. Lyon, 564
Baldwin and Martin, Adm'r, 923
Bancroft, Adm'r &c. et al. v. Stan-
ton, Jr. 351
Bank Br. at Decatur v. Lanicr, 595
Bank Br. at Mobile v. Collins, 95
Bank Br. at Mobile and Crawford, 205
Bank Br. at Mobile and Crawford,
ct al. 383
Bank Br. at Mobile and McGowan,
et al. 823
Bank Br. at Mobile and Moffitt &
Watson, 593
Bank Br. at Mobile v. Murphy's
Adm'rs, 577
Bank Br. at Mobile v. Scott, 107
Bank Br. at Mobile and Smith, 880
Bank Br. at Mobile and Williamson, 906
Bank Br. at Montgomery v. Wilkins, 589
Bank Br. at Montgomery and John.
ston.
Bank Br. at Montgomery v. Sydnor,
use, &c.
Bank of the State and Bondurant, ct
al.
Bank of Mobile and Lester,
Bank of Mobile v. Marston,
Bank P. & M. of Mobile v. Clarke,
Bank P. & M. of Mobile v. Walker,
et al. 926
Bank Mechanics' of Augusta and
Gindrat, et al. 324
Bank Western of Georgia and Low-
ry's Admre. 120
Bank U. S. of Pennsylvania and
Hitchcock's Adm'r. 3fi6
Banks and Carleton &. Co. 32
Banks & Ready, Exr's. of Sims T.
Whitehead, 83
Bates v. Terrell, 129
Battle, State ex rel. 259
Barnett & Harris and Durden, 169
Beall v. Dearing, 124
Beck v. Simmons &, Kornegay, 71
Bell v. Pharr, et al. 807
Blevins v. Pope and Son, 371
Bloodgood, use, dec. and Cook do
Lamkin, 683
Bondurant, ct al.v. Bank of the State, 830
Borland v. Walker ' 269
Boulerand Doyi ( , 246
Boyeit, et al. v. i^ 9
Boykin and Gary, 154
Brady and Monroe /, 59
Brazcal and Watson, 451
Brin v. Burk, 588
Brock &, Youngue v. Youngue, 64
Broughton, et al. v. Governor, use,
c. 561
Brumby, Adm'r and Langdon & Co. 53
Buford, et al. and Shcppard, 90
Burdine v. Roper, Adrn'r, 466
Burk and Britt, 588
Burns v. Hindman, 531
379 Cage and Cobb, 619
Cain and Salter, 478
308 Carleton & Co. v. Banks, 32
Carlisle v. Davis, 42
830 Carroll, et al. v. Moore, Adm'r, 615
490 Carter & Healhmnn and Hoggins, 630
108 Carters' v. Mannings &, Jackson, 851
765 Chandler v. Crawford, 506
Chandler, et al. Ex'rx and Ex'r v.
Shchan, 251
TABLE OF CONTENTS.
Chandlers' and Mahoney, 732
Charles and Williams, 202
Chenault and Wagner & Hughes, 677
Childress & Skanes and Windham,
use, &c. 357
Clarke and Bank' P. & M. of Mobile, 765
Claunch and Allen, 788
Clay and Moore, et al. 742
Clements, et al. and Dunlap, 539
Clements, et al. and Flournoy, 535
Clifton, et al. v. Cook, 114
Clute & Mead and Crawford, 157
Cobb v. Cage, 619
Coleman, et al. and Alston, 795
Collins and Bank Br. at Mobile, 95
Collins, et al.and Doe ex dem. Alex-
ander, 480
Comegys and Cromwell &. Johnson,
Adm'r, 498
Comstock, et al. v. Meek & Co. 528
Cook and Clifton, et al. 114
Cook & Lamkin v. Bloodgood, use,
&c, 683
Couch, et al. v. Couch, 519
Couch and Cour-h, et al. 519
Crawford and Austill & Marshall, 335
Crawford v. Bank Br. at Mobile, 205
Crawford, et al. v. Bank Br. at Mo-
bile, 383
Crawford and Chandler, 506
Crawford v. Clute & Mead, 157
Cromwell &- Johnson, Adm'rs, v.
Comegys, 498
Croom and Wheat, 349
Crutchfield and Haynes, 189
Cuthbert v. Newell, 457
Davidson v. Ernest, 817
Davis and Carlisle, 42
Davis v. Hunter, 135
Davis, et al. and Gurley, 315
Dean v. Massey, 601
Dearing and Beall, 124
De Mony, garnishee v. Johnston, 51
Dobson's Adm'r. and Handley, 359
Doe ex dem. Alexander v. Collins,
et al , 480
Doe ex dem. heirs of Farmer and
Eslava, 543
Doe ex dem. Hunt, et al. and Hal-
lett & Walker, et al. 882
Dothard, et al. and Reynolds, 664
Doyle v. Bonier, 246
Driver and Walker, 679
Dubose v. Dubose, . 235
Dubose and Dubose, ' 235
Duckworth v. Johnston, 578
Dunlap v. Clements, et al. 539
Dunlap v. Foster, 734
Dupuy v. Roebuck, 484
Durden v. Barnett & Harris, 169
Earle v. Juzan, 474
Edwards v. Wickliffe, 715
Eiland, Adm'r v. Radford, 724
Elmes v. Sutherland, 262
Ernest and Davidson, 817
Eslava v. Doe ex dem. Farmer's
heirs, 543
Fernandez & White v. The State, 51 1
Findley and Samuels, 635
Fisher and Alexander, et al. 514
Flournoy v. Clements, etal. 535
Forrest v. Jones, 493
Forward and Savage, ' 463
Foster and Dunlap, 734
Fuller and Hare, 717
Gary v. Boykin, 154
Gary, et al. and Hopkins, 46
Gary, use &c. v. James, 640
Gibson, etal. v. Goldthwaite, 281
Gilchrist and Lake, 955
Gindrat, et al. v. The Mechanics'
Bank of Augusta, 324
God bold & Andress, Admr's v.
Roberts, Adm'r. 662
Godbolt, Adm'r and Knight's dis-
tributees, 304
Goldthwaite and Gibson, etal. 281
Governor, use, &c. and Broughton,
etal. 561
Governor, use, &c. v. Robbins, et al. 79
Gray v. Turner, use of Johnson, 30
Grayham &. Christian v. Roberds, 719
Gulley and Simonds, 721
Gunn v. Harrison, 585
Gurley v. Davis, et al. 315
Hair and Th mpson, etal. 313
Hallett & Walker, et al. v. Doe ex
dem. Hunt, et al. 882
Hamilton, et al. and Toulmin, et al. 362
Hampton v. Shehan, 295
Hancock v. Jordan, 448
Handley v. Dobson's Adm'r 359
Harbin v. Knox, 675
Har'e v. Fuller, '717
Harrison, et al. ex parte, 736
Harrison and Gunn, 585
Harvey v. Jeter, et al. 688
Haynes v. Crutchfield, 189
Hemphill v. Townsend, 853
Henderson and Owen, 641
Herri ngton, et al. v. Stover, 142
Hill &, Lockett and Wetumpka and
Coosa Rail Road Company, 772
Hill v. Slaughter, 632
Hindman ind Burns, 531
Hitchcock's heirs and Adm'r v.
Bank U. S. of Penn. 386
FTodges, Adm'r and Logan, 66
Holloway, et al. v. Johnson, 660
Hopkins v. Gary, et al. 46
Hopkins and Land, 115
Huggins v. Carter & Heathman, 630
Hunt, use cf-c. v. Stewart, 525
Hunter and Davis, 135
TABLE OF CONTENTS.
Hunter v Waldron, 753
Ijames and Rhodes, 574
Iniendant and Town Council of
Gainesville and Lewis, et al. 85
Jackson's Adm'r v. Jackson, et al. 791
Jackson, et al. and Jackson's Adm'r 791
James and Gary, use, &c. 640
Jeter, et al. and Harvey, 688
Johnson and Holloway, et al, 660
Johnston v. Bank Br. at Montgom
ery, 379
Johnston and Duckworth,
Johnston v. Lattimore,
Johnston and De Mony, garnishee, 51
Jones and Forrest,
Jones and Kirksey,
Jordan and Hancock,
Juzan and Earle,
Kemp & Buckey v. Porter, 138
Kerr and Boyett, et al. 9
Kirkmans', et al. v. Vanlier, 217
Kirksey v. Jones, 622
Knapp v. McBride <J- Norman, 19
Knight's Distributees v. Godbolt,
Adm'r, 304
Knox & Co. and Alexander, et al.
Admr's, 503
Knox and Harbin, 675
Krebs and McVay's Admr's, 456
Lacy and Stiles, 17
Lake v. Gilchrist, 955
Lamkin, et al. v. Reese, et al. 170
Land v. Hopkins, 1J5
Langdon & Co. v. Brumby, Adm'r 53
Lanisr and Bank Br. at Decatur, 595
Lattimore and Johnson, 200
Laroque & Hatch v. Russell, 798
Lawson v. Orear, 784
Leavitts' v. Smith, et al. 170
Lester v. Bank of Mobile, 490
Lewis, et al. v. The Intendant and
Town Council of Gainesville, 85
Lightfoot, et al. v. Strahan, 444
Litchfield, use, &c. v. Allen & Fal-
coner, 779
Logan v. Hodges' Adm'r 66
Loomis, Adm'r v. Allen, 706
Lowe and Wheat, 311
Lowrv's Admr's v. Bank Western
of Georgia, 120
Lucas v. Thoringlon's Adm'r, 605
Lvon and Badger, 564
Mabe and McCary, et al. 356
Mahoney v. Chandlers', 732
Mallory, et al. v. Matlock, 757
Mannings' & Jackson and Carters', 851
Marston and Bank of Mobile, 108
Martin, Adm'r, v. Baldwin,
Mason, et al. v. Watts.
Massey and Dean, 60!
Matlock and Mallory, et al. 757
McBeath, et al. v. Spann, use, <f c. 201
McBride & Norman and Knapp, 19
McCain and Wood, 800
McCary, et al. v. Mabe, 356
McCook $ Robertson's Adm'r and
Roper, 318
McGowan, et al. Bank Br. at Mobile, 823
McLane f- Plowman and Riddle, 775
Me Roberts & Porter and Worthing.
ton, Adm'r,
McVay's Adm'r v. Krebs,
Meek & Co. and Comstock,et al.
578 Metcalfand Winston,
200 Moffitt & Watson v. Bank Br. at Mo-
bile,
493 Monroe & Tardy v. Brady,
622 Moore, Adm'r, and Carroll, et al.
448' Moore, et al. v. Clay,
474 Morgan &. Wife and Sprague &
Wife,
Morgan v. Patrick & Smith,
Morse and Waring,
Mosby v. Steele & Metcalfe,
814
456
528
837
593
59
615
742
952
185
343
299
Murphy's Adm'rs v. Bank Br. at
Mobile, 577
Nabor's Heirs, ex rel. State, 459
Nail v. Adams, 475
Nelson and The State, 610
Newell and Cuthbert, 457
Newhouse & Co. v. Redwood, Ad-
ministrator of Goodwin, 598
Newman & Levie and The State, 69
Ogden, Wadlington & Co. v. Powell, 243
Olds v. Powell, 652
Orear and Lawson, 784
Owen v. Henderson, 641
Patrick &, Smith and-Morgan, 185
Perkins' Ex'rs v. Winters' Admr'x,
Heirs, et al, . 855
Pettus, use, &c. and Simpson, 453
Pharr, etal. and Bell, 807
Pierce and The State, 728
Pippin, et al. and Rutland's Adm'r, 469
Pitts v. Shortndge's Adm'rs, 494
Plowman & McLane v. Riddle, 775
Pollard v. Stanton, 761
Pope and Rake's Adm'r, 161
Pope cj- Son and Blevins, 371
Pope & Son, et aj. v. Wilson, et al. 690
Porter and Kemp & Buckey, 138
Powell and Olds, _ 652
Powell and Ogden.Wadlington & Co. 243
Powell, etal. v. Powell. Adm'rx, 582
Powell, Adm'rx, and Powell, et al. 582
Powers, et al. and Robb, 658
Quinn, et al. v. Wiswall, 645
Radford and Eiland, Adm'r, 724
Rake's Adm'r, v. Pope, 161
Redwood, Adm'r of Goodwin and
Newhouse tCo. 598
Reese, et al. and Lamkin, et al. J70
Reynolds v. Doihard, et al. 664
Rhea and Anderson, 104
8
TABLE OF CONTENTS.
Rhodes v. Ijames, 574
Rhode's Adm'rs v. Storr, 346
Riddle and Plowman & McLane, 775
Robb v. Powers, et al. 658
Robbins, et al. and Governor, use,
&c. 79
"Roberdsand Grayham & Christian, 719
Roberts, Adm'r, and Godbold & An-
dress, Adm'rs, C62
Robinson and Wofford, 489
Roebuck and Dupuy, 484
Roffe and Tarver, 873
Rone and Sexton, 829
Roper Adm'r and Burdine, 466
Roper's Adm'r v. Pippin, etal. 469
Roper v. McCook and Robertson's
Adm'r, 318
Rountree and Selma & Tennessee
R.R. Co. 670
Russell and Laroque <$ Hatch, 798
Rutland's Adm'r v. Pippin, et al. 469
Salterv. Cain, 478
Samuels v. Findley, 635
Savage v. Forward, 463
Scott and Bank Br. at Mobile, 107
Seed and Vaughan, et al. 740
Selma and Tennessee R. R. Co. v.
Rountree, 670
Sexton v. Rone, 829
Shehan and Hampton, 295
Shehan and Chandler et al. Ex'r and
Ex'ry, 251
Sheppard, et al. v. Buford, 90
Shortridge's Adm'r and Pitts, 494
Simmons & Kornegay and Beck, 71
Simonds v. Gulley, 721
Simpson, ex parte, 842
Simpson v. Pett-us, use, <c. 453
Slaughter and Hill, 632
Smith v. Armistead's Ex'rs, 698
Smith v. Bank Br. at Mobile, 880
Smith, et al. and Leavitts', 175
Smith and Woodward, Adm'r, 112
Spann, use, &c. and McBeath, etal. 201
Spence and State, ex rel. Easley, 500
Spence < Stinnett v. Walker, 568
Sprague $ Wife v. Morgan ^- Wife, 952
Stanton, Jr. and Bancroft, Adm'r,
tf-c. et al. 351
Stanton and Pollard, 761
Siate, ex rel. Battle, 259
S'ate, ex rel. Easley v. Spence, 500
Slate, ex rel. Nabor's Heirs, 459
State and Fernandez < White, 511
State v. Nelson, 610
State v. Newman & Levie, 69
State v. Pierce, 728
Stcele & Metcalfc and Mosby, 299
Stewart and Hunt, use, J>c. 525
Stiles v. Lacy, 17
Storr and Rhode's Adm'rs, 34G
Stover v. Herrington, et al. 142
Strahan and Lightfoot, et al. 444
Sutherland and Elmes, 262
Sydnor, use, <f-c. and Bank Br. at
Montgomery, 308
Tarver v. Roffe, 873
Taylor, et al. and Wallace, 668
Teague v. Williams, 844
Terrell and Bates, 129
Thompson v. Armstrong, use, &c. 256
Thompson, et al. v. Hair, 313
Thorington's Adm'r and Lucas, 605
Tims, Bigelow & Caldwell and Wai-
ton, 470
Toles & Dunlap and While, 569
Toulmin, etal. v. Hamilton, et al. 362
Townsend and Hemphill, 853
Turner, use of Johnson and Gray, 30
Vanlier and Kirkmans', et al. 217
Vaughan, et al v. Seed. 740
VVagner & Hughes v. Chenault, 677
Walton v. Tims, Bigelow & Cald-
well, 470
Waldron and Hunter, 753
Walker, etal. and Borland, 269
Walker v. Driver, 679
Walker, et al. and Bank P. & M.
of Mobile, 926
Walker and Spence &, Stinnett, 568
Wallace v. Taylor, et al. 668
Waring v. Morse, 343
Watts and Mason, et al. 703
Watson v. Brazeal, 451
Weissinger & Crook, Ex parte, 710
Wetnmpka and Coosa R. R. Co. v.
Hill 3- Lockett, 772
Wheat v. Croom, 349
Wheat v.Lowe, 311
Whitehead and Banks <fc Ready,
Ex'rs of Sims,
White v. Toles tf- Dunlap, use, <f-c. 569
Wickliffe and Edwards, 715
Wilkins and Bank Br. at Montgom-
ery, 589
Williams v. Charles, 202
Williams and Teague,
Williamson v. Bank Br. at Mobile, 906
Wilson v, Auld, Ex'rx,
Wilson, et al. acd Pope # Son, et al. 690
Windham, use, <fc. v. Childress <f-
Skanes, 357
Winston v. Metcalf, 837
Winter's Adm'rx, Heirs, et al. and
Perkins' Ex'rs, et al. 855
Wiswall and Quinn, et al. 645
Wofford v. Robinson, 489
Wood v. McCain, 800
Woodward, Adm'r, v. Smith, 112
Worthington, Adm'r, v. McRobefts
& Porter, 814
Youngue and Brock cj- Youngue, 64
REPORTS
OP
CASES ARGUED AND DETERMINED,
3tttu tttrm, 1844,
BOYETT, ET AL. v. KERR.
1. The judgment of the Judge of the County Court upon the probate of a will, and
his decree of final settlement of the estate under the will, cannot be joined in
the same writ of error.
2. The judgment upon the probate of a will cannot be reviewed by a writ of error
after the lapse of three years, between the judgment and the suing of the writ
of error.
3. The proper course of practice in the County Court in testamentary causes is, ior
the person producing the will and asking probate to propound the will, to the
Court in writing, with the usual facts necessary to be proved, and informing the
Court what persons will be entitled to distribution if the will is invalid.
4. In order to make a valid decree for the final settlement of an estate, every party
entitled to distribution must be brought in some way before the Court. When
persons entitled to distribution under a will die, before a settlement, it ia neces-
sary that their personal representatives should be before the Court at the final
decree.
6. Querc Whether a statement by the testator, proved in a nuncupative will, that
he wanted one sum of money appropriated to the schooling of three of his chil-
dren, and another sum to the like purpose of two other children, is not to be
considered as the creation of a trust, and not as a legacy. Quere Also,
whether these trusts or bequests do not lapse in the event of the death of the
eestui que trust.
10 ALABAMA.
Boyett, et al. v. Kerr.
6. When the construction of a will depends upon extrinsic facts, a Court of error*
in reviewing a decree of final settlement made under the will, will intend that
the necessary facts were proved to sustain the decision, unless the contrary is
shown by an exception.
Writ of error to the County Court of Surater County.
ON the 28th of October, 1839, Lock Boyett made application
to the Judge of the County Court of Sumier, for probate of the
last will and testament of Robert Boyett, deceased : whether
this application was oral or written does not appear, but a pa-
per is set out in the transcript in these terms :
" On Sunday, the 21st day of July, 1839, 1 was sent for by
my brother, Robert Boyett, who was extremely low at the time
with fever : after I arrived at my brother's house, my brother,
about twelve o'clock, on Sunday, told me that he had a fine
plantation there, and that if not attended to, he asked me, if it
would not soon go to rack. I told him it would. He then told
me he had made up his mind how he wanted his property dis-
posed of. He said he wanted three thousand dollars appro-
priated to the schooling of his three youngest children, and
fifteen hundred to his two children at Gainesville that he
wished all his property sold and equally divided ; and that I
could buy Sally (his wife) a place. My brother died about sun-
down, 23d July, 1839. He stated to me several times, between
Sunday and his death, that he should not recover; and on the
day of his death, in the morning, he stated to Samuel Swilley
and myself that he ought to do something about his estate.
Mr. Swilley said no that he was doing well, arid would be
about again in a few days. Mr. Swilley thought it best not to
say any thing to him about a written will. I thought he was
better from Sunday evening till Tuesday morning, and on
Tuesday stated to my brother that I must go home to see
about some business he said if I did go, I would never see
him again. I then staid.
LOCK BOYETT."
26th July, 1839."
Attest : SAM'L B. BOYD.
To this is appended an affidavit, sworn to by Lock Boyett,
in open Court, on the 14th of December, 1839, in these Words :
Personally came Lock Boyett, in open Court, and being first
JUNE TERM, 1844. , n
Boyett, et al. v. Kerr.
duly sworn, deposeth and saith, that Robert Boyett, now de-
ceased, did speak the foregoing, as therein set forth and ex-
pressed, whilst of sound and disposing mind and memory, 011
the day and date therein enumerated.
On the application for probate it was ordered that the clerk
should cite the widow of the deceased, and also Missouri, and
Jacksoh Boyett, to appear at the next term of the Orphans'
Court, on, &c., and that Price Williams be appointed guardian,
ad Zitem, to represent Green, Amanda, Mary J., John and
William, all minor heirs of the deceased. Citations according-
ly were issued, and at the return day the parties cited appear-
ed, and the proceedings were continued until the 7th day of
December. It was also ordered that the clerk should issue a
venire facias to summon a jury "to decide upon the legality
of the nuncupative will desired to be established by Lock
Boyett, as the same is (was) contested by Jackson Boyett, one
of the heirs of said deceased."
On the 7th December, the record recites that the parties came
by their attorneys, as well as a jury who were swora "to
speak the truth upon the issue," but a juror was withdrawn
and no verdict rendered, and then the case was continued un-
til the 14th of the same month.
The entry of the proceedings on the 14th of December, re-
cites the coming of the parties, contesting an instrument pur-
porting to be the nuncupative will of Robert Boyett, deceased,
to wit, Lock Boyett, the brother of the deceased, and Jackson
Boyett, son and heir of said deceased, by their attorneys, and
also Price Williams, the guardian, ad lilem, to the minor heirs
of the deceased, to wit, Green, Amanda, Mary J., John and
W r illiam Boyett, which instrument bears date 26th July, 1839,
signed by Lock Boyett, and attested by Samuel B. Boyd. A
jury was then empannelled and sworn to speak the truth upon
the issue joined, who after hearing testimony, the argument of
counsel^ and the charge of the court, retired, made up, and re-
ported the following verdict : " We, the jury, do find it the will
and the wish of Mr. Boyett that his property should be dis-
posed of as he told his brother." Whereupon it was ordered
by the Court that said writing be probated as the nuncupative
and last will and testament of Robert Boyett, deceased, and re-
corded. Sally Boyett, widow and relict of said deceased,
12 ALABAMA.
Boyett, et al. v. Kerr.
waived the provisions made for her in the will, and claims her
dower under the laws of the State. She also relinquished her
right to administer, and as well as Jackson Boyett, son of the
deceased, agreed that Lock Boyett should be appointed admin-
istrator. The latter was therefore appointed administrator
with the will annexed. ^
Lock Boyett afterwards died, having first made a will
wherein he appointed John W. Kerr, his executor, and on the
16th day of October, 1840, Kerr was appointed administrator
de, bonis non, cum testamenlo annexo, of Robert Boyett, de-
ceased.
Kerr stated his accounts for a final settlement, and due no-
tice having been given, no objection was urged by any person
interested. The Court then proceeded to distribute the assets
of the estate, which appeared to be 19,057 45-100 dollars.
From this was taken 2,750 dollars, which the administrator, by
order of the Court, paid to the clerk, to be paid to Wm. J.
Steele, guardian of Amanda, William and John Boyett, minor
heirs of the deceased, in compliance with the will of the de-
ceased, for tuition, &c.; which sum was by the said clerk
paid over to the said Steele, and thus left a balance due
from the administrator of 16,307 45-100 dollars. This sum
was then distributed between the six heirs, making a dividend
to each, of 2,717 90-100 dollars. These six heirs, as shown by
other portions of the judgment entry are Jackson Boyett and
Missouri Boyett, of full age, and Green, Amanda, William and
John Boyett, minors; the first represented by Samuel Swilley,
and the last by William J. Steele, as guardians. Payment hav-
ing been made of the sum distributed to each heir, the admin-
istrator was discharged from his administration bond.
The writ of error is sued out in the names of all the distribu-
tees, and it is stated in the writ that Mary J. and Emily Boyett,
two of the children of the decedent, Robert Boyett, have died
since his death. Amanda, John, and William Boyett, three of
the distributees, by their guardian, Wm. J. Steele, refuse to
join in the assignments of error, and crave a severance, but
consent that the writ may be prosecuted on behalf of the other
(distributees.
The errors assigned are :
Jst. That it does not appear that the will was made at the
JUNE TERM, 1844. 13
Boyett, et al. v. Kerr.
habitation of the deceased, or where he had resided for the
space of ten days or more next preceeding the making of the
will.
2d. That the property bequeathed being more than one hun-
dred dollars, it was necessary to show that the testator called
on the persons present, or some of them, to take notice that it
was his will, and this no where appears.
3d. That the pretended will is altogether void and uncertain.
4th. That the probate of the will was decreed on the finding
of a jury, when the verdict does not sustain the will, nor au-
thorize the decree of the court.
5th, That by the final decree the estate is not equally distri-
buted according to the provisions of the will, but the sum of
2,750 dollars before distribution, is decreed and paid to Amanda,
William, and John Boyett, and only the residue is divided.
Gth. That it does not appear whether the said Amanda,
William and John were the three youngest children of the
deceased, or whether these three include also the two at
Gainesville, or whether some of each class are included, or one
of either.
7th. That the .distribution decreed is not according to the will.
8th. That it does not appear that distribution was dscreedto
those who are legatees under the will.
9th. That the decree is in other respects informal and insuffi-
cient.
10th. That the will is void for uncertainty.
BLISS and BALDWIN- for the plaintiffs in error, without waiv-
ing the assignments with respect to the probate, insisted that
the only construction to be given to the terms of the will, is,
that the testator intended his estate should be equally divided
between all his children. The ambiguity is not explained by
the context, and, unless there are two classes of children refer-
red to, as entitled to more than the others, is pal en I and there-
fore not subject to explanation.
There is nothing in the will to indicate it was the testator's
intention that the sums named, should be appropriated previ-
ous to distribution ; but the context rather shows that he wish-
ed the sums applied to that specific purpose out of their res-
pective shares. Again, the will may be considered as entirely
14 ALABAMA.
Boyett, et al. v. Kerr.
void on account of its vagueness and uncertainty. Those
clauses are void and rejected where the words are so general
and uncertain that the testators meaning cannot be collected
from them. [Lovelass on Wills, 282. J
METCALF and STEELE, contra.
GOLDTHWAITE, J. In the present case an attempt is
made by the assignment of errors to connect the judgment ad-
mitting the will to probate, with the 'subsequent decree for
a final settlement. Our opinion is that this course cannot be
be pursued, inasmuch as the probate is in itself a final judg-t
ment, entirely independent of, and distinct from the subsequent
administration. In many cases the parties to contest the will
would be entirely different from those interested in a distribu-
tion under it ; and even where the persons are the same, yet
the interests of some must necessarily be different under the
will from what it would be, if it was out of the way. These
reasons are conclusive to show the two decrees cannot be ex^
amined under the same writ of error.
2. It might in this case, where the legatees under the will are
the same persons as would have been distributees of the estate,
if there was an intestacy, perhaps be allowed to the parties to
elect whether they will, under this writ of error, proceed to ex-
amine the errors which affect the probate, or those supposed to
be connected with the final distribution ; but if they were permit-
ted to elect the former, the writ of error would necessarily be dis-
missed, because it is barred by the statute of limitations. The
judgment for the probate was rendered on the 14th December,
1839, and the writ of error was sued out in May, 1843. Con-
sequently more than three years had then elapsed from the
time of the probate. A writ of error to reverse a judgment of
the Circuit Court may be sued out at any time within three
years after its rendition, and not afterwards. [Clay's Digest,
309, 17.] Writs of error lie from any judgment or order
final of the Judge of the County Courf to the Circuit or Su-
preme Courts, in the same manner as upon judgments of the
Circuit Court. [Clay's Digest, 297, 4.] The effect of the
last enactment is to bring writs of error frorn the County Courts
within the bar of the statute first recited, and thus force the
Court to examine into the errors of the probate, even if'such
was the election of the plaintiff in error.
JUNE TERM, 1844.
Boyett, et al. v. Ken.
3. We cannot but lament that the course of practice in our
County Courts in testamentary causes is so exceedingly inar-
tificial, as frequently to produce general inconvenience to the
suitors themselves as well as embarrassing questions to ap-
pellate courts ; and this record is certainly no exception to
what seems to "be the general rule. Here we have to grope
through the whole case from beginning to end to ascertain
who the parties were who should have been before the Court
at the commencement of these proceedings. How much more
simple and convenient, to say nothing*of it as being the appro-
priate course, would it be for the person asking probate of a will
to propound it fn writing, with the facts necessary to be proved
to make it valid ; setting out the names, description and resi-
dence of those entitled to the estate as heirs or distributees, and
praying that the whole may be admitted to probate. On such
an applicatiori citations could be issued with certainty, when in
its absence all is doubtful or dependent upon the extra-official
information of the Court. But with this at present we have
no other concern than to call the attention of practitioners and
County Judges to the defective practice of these Courts, in the
hope that the remarks may, to some extent, cure the evil which
now exists.
4. The decree for final settlement is erroneous for the want
of the necessary parties, and this is a defect which we are
astonished to notice, independent of any assignment of er-
ror, because it shows a total absence of jurisdiction, in the
Court to render any decree whatever. Every party entitled
to distribution must necessarily be before the Court in some
way before there can be a valid final settlement. It appears
when the whole record is considered, that the testator, besides
a widow, left eight children, all of whom, either by the will
or by statute, were entitled to some portion of the estate. It
may possibly be surmised the widow is dead, and it is stated
in the writ of error that two of the children had died since the
death of the testator. In the first proceedings had, the widow
and seven children are named. It is immaterial when the
widow, (if in truth she be dead,) or three children died. If the
deaths happened after that of the testator, their personal rep-
resentatives were necessary parties to the final settlement of
the estate, inasmuch as they were severally entitled to portions
i6 ALABAMA.
Boyett, et al. v. Kerr.
of it, which portions at their respective deaths, instead of
lapsing into the general fund became the subject of distribu-
tion as parts of their several estates. The reasons for thus
making the personal representatives of the widow and chil-
dren parties to the proceedings will be obvious, when it is
considered that it may be possible, that all the surviving child-
ren may not be thus related to the widow, and it may also be
possible, that some of those who survive are not of 'the whole
blood with one or both of those deceased ; in either of which
events a different sort of distribution would obtain from that
which would be proper under the will; but the conclusive
reason is, that the survivors have no interest under the will in
the portions of those who are dead.
5. However doubtful we should feel that this is a valid nun-
cupative will undej the statute, we are bound as an appellate
Court so to consider it upon error; whether it could yet be
questioned in a proceeding in equity, to set it aside, is a ques-
tion not now to be examined. We should therefore, -if it was
necessary for the determination of the rights of the parties,
proceed to give our views of the construction it ought to re-
ceive ; but as this, from the condition of the case is. unneces-
sary, we shall content ourselves with remarking, that it may
be questionable whether the bequests which are supposed to
fee specific, are any thing more than mere trusts imposed on
the conscience of the executor. It may likewise deserve con-
sideration whether, if the children for whose benefit these trusts
are created should die before the sums should be expended
pursuant to the will, the unexpended surplus would not re-
main as a part of the estate. In this view too it may call for
consideration, whether the County Court has any jurisdiction
over the trust funds, as if they had such, there seems to be no
jurisdiction in that Court to control them. With respect to the
children who are entitled to the benefit of these clauses in the
will, it is evident the construction depends upon -extrinsic facts.
3,000 dollars are appropriated for the schooling of his three
youngest children, and 1,500 dollars for his two children at
Gainesville. If the children at Gainesville were not of his three
youngest, but were older than three others, the knowledge of
their circumstances would enable every one to give a satisfac-
tory construction to that which without the information is
JUNE TERM, 1344. 17
Stiles v. Lacy.
uncertain. But let it be supposed that two of his three young-
est children were at Gainesville when the will was made, it
cannot be doubted his intention was, that out of three, two
should receive 750 dollars, and the other of the three 1,500
dollars. Without such a construction under such circumstan-
ces the whole clause would be incapable of any signification,
whatever. The extrinsic facts necessary to the construction
of the will do not appear upon the record, but we should hesi-
tate to reverse the decree if this was the only error complained
of and ascertained, because it was competent for the parties
by exception, to have set out what the facts were, if the pro-
per construction was not given upon the will in connexion with
them ; and having failed to do so, we should incline to sus-
tain the judgment, upon the presumption that the facts were
such as to warrant it; and such would be the case, if the three
younger children were at Gainesville and the other two else-
where, and if one of each class were dead.
For the error we have noticed .with respect to the parties,
the judgment decreeing a final settlement, must be reversed
and the cause remanded, that the parties may take such course
as they shall be advised.
STILES v. LACY.
1. Duplicity in a replication to a plea is bad on general demurrer, notwithstanding
the act abolishing special demurrers.
Error to the County Court of Marengo.
ASSUMPSIT on promissory note.
The defendant pleaded, that subsequent to the making of
the promises in the plaintiff's declaration, he obtained a cer-
tificate in bankruptcy from the District Court of the United
States for New Hampshire. Accompanying the plea, is a
certified copy of the proceedings in bankruptcy.
18 ALABAMA.
Stiles v. Lacy.
The plaintiff demurred to the plea, which being overruled,
he replied,, " That the certificate and discharge therein alledged,
if granted at all, was fraudulently obtained by said Stiles in
this, that the said Stiles did not reside nor have his place of
business in the State of New Hampshire, when said discharge
and certificate were granted, at the time of filing his petition,
for said discharge, nor at any other time since, but that he then
did and still does reside and do business in the State of Ala-
bama. That the application for discharge was voluntary, and
before applying for said discharge, and in contemplation of
bankruptcy he made conveyances of a portion of his effects
for the purpose of preferring some of his creditors over others.
That the said Stiles did not render up all his property, rights
and credits, as is required by law in such cases, but knowingly
withheld more than said law allows, and, for not giving said
Lacy notice of his application ; and this," &c.
The defendant demurred to this replication and the Court
overruled the demurrer. And thereupon, on issue joined, the
jury found a verdict for the plaintiff, and the Court rendered
judgment from which this writ is prosecuted. The defendant
assigns for error the judgment of the Court on the demurrer.
STEWART, for plaintiff in error.
B. F. PORTER, contra.
ORMOND, J. We do not think it proper to examine the
merits of the question presented on the pleadings, as the re-
plication to the plea is so defective that it cannot be sustained.
It contains several distinct and unconnected matters of de-
fence that the Court in New Hampshire had not jurisdiction
to render the decree, because the defendant was a citizen of
Alabama that the application was voluntary and fraudulent,
and that the plaintiff had no notice of the intended applifca-
tion.
The statute authorizing several pleas extends only to pleas
to the declaration, and does not embrace replications, rejoin-
ders, or any of the subsequent pleadings. This was held by
this Court in Gray v. White, 5 Ala. Rep. 490, as it regards
several rejoinders to a replication. The replication in this
case is precisely the same as if three distinct replications had
JUNE TERM, 1844.
Knapp r. McBride & Norman.
been formally made 10 the plea. If that could be tolerated, it
would be in the power of the other party to make several re-
joinders to each replication, and thus an infinity of issues would
be presented.
Our statute allowing several pleas is in substance that of
the 4 Anne, under which it has always been held that it does
not extend to the pleadings subsequent to the pleas to the de-
claration. 5 Bac. Ab. Pleas 447, K. 3, Com. Dig. PI. E. 2.
The duplicity of this replication is not protected by the sta-
tute abolishing special demurrers. Duplicity in a plea would
not be reached by a special demurrer, because the party may
plead more pleas than one, and therefore to embrace several
distinct matters of defence in one plea, as it would in effect be
pleading several pleas, is matter of form and not substance.
But as but one replication can be made to a plea, duplicity is
matter of substance and not form, which was all that the
statute was intended to provide against.
Let the judgment be reversed and the cause remanded, that
the plaintiff may, if he thinks proper, amend his replication,
KNAPP v. McBRIDE & NORMAN.
1. Semble Where the defendant denies by plea, regularly pleaded, that he mad
the note on which the action is founded, the plaintiff may read the note to (he
jury, if he show prima facie that it was made by the defendant, or that he au-
thorized it, or adopted it as his own ; but in the inquiry before the Court, the ex-
amination should not be extended BO far as to show, that in point of law, there is
no obligation upon the defendant. When the note has been read to the jury
upon the plaintiffs proof,. then the defendant may adduce his evidence.
2. So where a note purports to have been made by an attorney, the written pow-
er, if unexceptionable in point of law, and shown by the plaintiff to be prima
facie genuine, should be allowed to go to the jury, in an action upon the note.
3. D. &, K. appointed H. D. their attorney, " with full power and authority for us,
and in our name, to draw or indorse promissory notes, to accept, draw or indorse
bills of exchange, and to sign any check, or checks, order or orders, for any
money or effects, which we now have, or hereafter may have, deposited in the
Branch of the Bank," &c. : Held that H. D. had an authority to make, draw,
or indorse notes or bills, on account of D. & K., without reference to the form
20 ALABAMA.
Knapp v. McBride & Norman.
and amount, or place where, and to whom payable. As to checks and orders
there is a limitation these must be addressed to the Branch of the Bank, &c.
4. One partner may bind the firm by contracts relating to the partnership, and
when a note made by one partner in the name of the firm is put in suit, it is not
in.cumbent on the plaintiff in the first instance to show that the note was given
for a partnership transaction, for such is the legal intendment. If the note was
given for the individual debt of the partner making it, with the knowledge of
the party to whom it was given, these facts must be shown in defence to the
action.
5; Semble Where a promissory note is made negotiable and payable a't Bank, the
right of set off or other kindred defence is waived, not only against the Bank,
but against any one who may advance upcn it, without notice of the unfairness
of its origin.
6. The death of one of several partners, operates a dissolution of the partner-
ship, unless its continuance is provided for by express stipulation. But, quere
where one partner gives a power of attorney in the firm name with authority to
make notes, draw bills, &c., and after his death, the attorney without a know,
ledge thereof, makes a negotiable note in the name of the partnership, ante-
dated of a day when the deceased partner was -in life, which goes into the hands
of a bona fide holder, without notice, may it not be enforced against the surviv-
ing partner, although it was given in payment of the deceased partner's debt?
7. Where the Court charged the jury, that a power of attorney, before them, con-
ferred the authority to execute the note on which the suit was brought, unless
the same was revoked, which they were to ascertain from the evidence before
them, the charge is not objectionable, as referring to the jury the decision of the
legal question, viz : what amounts to a revocation?
8. A party excepting to the ruling of the Court against him must show affirmative,
ly the existence of error, and an appellate Court cannot aid him by presuming
what the record does not discover.
9. The neglect or omission of the judge to instruct the jury on some material point,
though it might sometimes furnish just grounds for a new trial, will not warrant
a reversal of the judgment,
"Writ of error to the County Court of Mobile.*
THIS was an action of Assumpsit, at the suit of the defend-
ant in error, against the plaintiffs, on a promisspry note, dated
Mobile, llth June, 1S36, and subscribed thus, "Dunning &
Knapp, per H. Dunning," by which they promised six months
* This case was determined, in June, 1838, and should have been reported in
7th or 8th Porter, and though the opinion was written by myself, I had entirely for-
gotten it, until the copy of a certified copy of the original was handed me two days
ago by the Clerk of the Supreme Court, with the remark that he had just obtained
it in Mobile, and that the case was not reported. Neither the Clerk or late Report-
er recollect any thing of the original ; it is not found in the office of the former,
though from having certified the copy, which he has been permitted to transcribe,
he knows it was once there. The -case is of such a character as deserves a place in
our Reports, and we avail ourselves of the earliest opportunity to make it public.
-COLLIER, C. J.
JUNE TERM, 1844. 21
Knapp v. McBride &. Norman.
after date, " to pay Win. D. Primrose, or order, five thousand
dollars, for value received, negotiable and payable at the
Branch of the Bank of the State of Alabama at Mobile." On
this note were the indorsements of the payee and Messrs.
Rivers.& Hopkins.
The defendant pleaded 1. Non-assmnpsit. 2. That neither
himself, nor Dunning & Knapp, made, signed or executed the
note declared on, in manner and form as the same is set forth
in the declaration. This latter plea the defendant verified by
affidavit. 3. The third plea is the same as the second, save
only it adds, the note was not made, signed and executed by
any person authorized by Dunning & Knapp, and they have
not "duly and legally ratified the-signingand execution there-
of, as their act and deed." 4. That the defendant did not
make, sign or execute the note, fior was it made, signed or
executed by any person authorized by him individually, or as
a member of the firm of Dunning & Knapp, or otherwise,
neither hath he duly and legally ratified the signing and exe-
cution thereof subsequently as his act and deed. 5. That the
note was not made, signed or executed by the defendant or
any one authorized to bind him individually, or as a member
of the firm of Dunning &. Knapp, or otherwise. This latter
plea was verified by the defendant's affidavit. The cause be-
ing submitted to a jury, a verdict was returned for the plain-
tiff, and judgment rendered accordingly.
On the trial the defendant excepted to the ruling of the
Court. From the bill of exceptions, it appears, that to prove
the execution of the note, the plaintiff introduced a witness,
who testified, that he believed the signature of H. Dunning to
the note was genuine, but stated that he had never seen him
write, and only judged of his signature from checks drawn by
him on the Branch Bank, and which the witness, as one of the
paying tellers, had paid. Plaintiff then offered a power- of at-
torney, which the same witness produced in Court, of the fol-
lowing tenor :
" Know all men by these presents, that we, Dunning &
Knapp, of the City of Mobile, have nominated, constituted,
and appointed, and by these presents, do nominate, constitute,
and appoint Henry Dunning, of the same place, our true and
lawful attorney, with full power and authority, for us, and in
22 ALABAMA.
Knapp v. McBride.& Norfnan.
our name, to draw or indorse promissory notes, to accept,
draw or indorse bills of exchange, and to sign any check or
checks, order or orders, for any money or effects, which we
now have, or hereafter may have, deposited in the Branch of
the Bank of the State of Alabama at Mobile ; with power,
also, as attorney or attorneys for the purposes aforesaid, to
make and substitute. And we do hereby declare it to be oui?
meaning and intention, and the true intent and meaning of
these presents, that the power and authority hereby given to
our said attorney, shall and may continue to be exercised by
him, or his substitute, until the same shall be revoked by us
in writing^ and notice thereof to the Cashier, for the time being,
of s,aid Branch of the Bank of the State of Alabama at Mobile,
given. And in case any act or acts, thing or things, which our
said attorney, or his substifutes, are hereby authorized or em-
powered to do for us, shall be done by him, or them, after our
death, but before notice of our death shall have been given
to the Cashier for the Branch of the Bank of the State of Ala-
bama at Mobile, the same shall be to all intents and purposes
as valid, binding and effectual in the law, against our heirs, ex-
ecutors and administrators, as if the same act had been done by
our said attorney, or his substitutes, in his life time, or by iiSi
in person: Hereby ratifying and confirming all that our said
attorney or his substitutes shall lawfully do by virtue thereof.
In testimony whereof, we have hereunto set our hands, the
twenty-eighth day of May, in the year of our Lord, one thou-
sand, eight hundred and thirty-five.
(Signed,) DUNNING & KNAPP."
This power of attorney is subscribed by E. C. Southworth,
as a witness to the signature of Dunning & Knapp, and at the
foot thereof, there is a certificate of a notary public of Mobile,
under his notarial seal, dated the 29th of May, 1S35, in which
he certifies, that Dunning & Knapp, by Edward Dunning, ap-
peared before him, " who acknowledged that he signed and
sealed the foregoing power of attorney, on the day and year
therein mentioned, to the said Henry Dunning, for the uses
and purposes therein mentioned."
The. witness first adduced, testified that the power, of which
a copy is set out above, had been lodged in the Bank, in pur-
suance of a rule or custom of the institution, in all cases where
JUNE TERM, 1844.
Knapp v. McBride &, Norman.
persons intended others to deal for them as agents, with the
Bank, by Edward Dunning : Further the power had been
verbally revoked in Bank, by either Edward Dunning, or his
partner, Knapp, on the 23th of June, 1836, and an entry of
that revocation made on the same day, by the proper officer,
in a book kept for that purpose ; and that after that day it had
not been regarded by the Bank as a subsisting power.
Henry Dunning was then called 'by the plaintiff, to- give
evidence to the Court ; being sworn, he stated that he had ex-
ecuted the note in question, as the agent of Dunning & Knapp,
supposing at the time, he was authorized to do so ; that he
had in one of the desks of Dunning & Knapp a power of at-
torney, (which however, was not produced, nor any effort
made to produce it.) That he had never seen the power set
out above until 4hen, and only heard of its existence from
Edward Dunning. Witness further proved that Edward Dun-
ning and defendant composed the firm of Dunning & Knapp ;
that they kept a jeweler's store in Mobile, where the note bears
date, and up to the dearti of Dunning, which occurred about
the 4th of October, 1836. The note in question was anteda-
ted about four months, was made some time before Dunning's
death, though at the time of making it, his death was not
known in Mobile. Further the note was executed in order
to raise money to take up a note which had been executed in
the name of Dunning & Knapp, to certain vendors of real
estate, and wrgch had been purchased by Edward Dunning
and one Wm. D. Primrose, for their own account. The de-
fendant had no interest in the real estate, and was absent
from the State when the same was purchased, and had been
for a long time before, and so continued until the note was
made, and had no " information or interest respecting the ex-
ecution of the note above copied, and which was executed to
raise money to pay off the note given for real estate as afore-
said."
E. C. Southworth, on the part of the plaintiff, stated that
he signed the said power of attorney as an attesting witness,
and that the same was executed in his presence by either Ed-
ward Dunning or the defendant but he believed it was by the
former. " Upon this testimony so offered to the Court as
aforesaid, the plaintiff offered to read to the jury as evidence
24 ALABAMA.
Knapp v. McBride & Norman.
the power of attorney herein above copied as aforesaid, and
which was deposited in the said Bank as aforesaid : also, to
read in evidence to the jury the promissory note first above
mentioned, and herein copied as aforesaid, without further
proof. To which the defendant objected, but the objection
was overruled, and the said power of attorney and note here-
in above last specified, were accordingly allowed to be read to
the jury as evidence in the cause. And the Court charged
the jury that although the said promissory note had not been
sold to the said Branch Bank, and had not been discounted
by, or at any time belonged to the Bank, yet the said power
was sufficient evidence of authority in H. Dunning, to make
the said note, unless it had been revoked, (a fact for the jury
to ascertain from the evidence before them,) before the said
note was executed." To all which the defendant by his coun-
sel excepted, &c,
The errors are " First, in admitting the evidence stated in,
the bill of exceptions. Second, in giving the charge as stated
in the said bill of exceptions."
GAYLE & VANDEGRAAFF, for the plaintiff in error.*
. J. A. CAMPBELL, for the defendants.
COLLIER, C. J. We have considered this case very at-
tentively and are satisfied, that several of the points made at
the argument are not presented by the record. The questions
assigned for error, arise upon the bill of exceptions, and are
1st. Was the power of attorney and the note on which the ac-
tion is founded properly received in evidence? 2d. Is the
charge of the Judge to the jury erroneous, as slated in the
bill of exceptions?
1. Where a defendant by plea, regularly pleaded, denies that
he made a promissory note the foundation of an action, it is
incumbent on the plaintiff before he can read the note to the
jury, to show prima facie that it was made by the defendant,
*. We have not been able to find a brief or note of the argument, but infer from
the opinion, that other points than those raised upon the bill of exceptions were
made at the bar. The latitude taken by counsel will readily furnish the reason
why the Court has even noticed points not legitimately presented by the bill of ex-
ceptions. This is frequently done in all appellate Courts in defer&nce to the bar.
The names of the counsel who appeared in the Supreme Court, it is supposed are
correctly stated, as they are taken from the assignment and joinder in error.
JUNE TERM, 1844. 25
Knapp v. McBride & Norman.
or that he authorized it, OP adopted it as his own. When the
plaintiff does this, he throws upon the defendant the burthen
of making good his defence.* In the preliminary inquiry be-
fore the Court, it would be irregular to extend the examina-
tion so far as to show that in point of laiv, there is no obliga-
tion upon the defendant, if the plaintiff has first proved that
in fact the note was made by hira or one having authority
from him; after the paper has been read to the jury, upon proof
making out a prima facie case for tbe plaintiff, then, the de-
fendant's proof is to, be heard the plea addresses itself to the ju-
ry, and it would not of course be permissible to contest the facts
before the Court. In the case before us it was proved that the
deceased partner", made a power of attorney subscribed in the
name and style of the firm, with the usual attestation and Seal,
and deposited it in the Branch of the Bank of the State of Ala-
bama at Mabile, by which H. Dunning was authorized to
draw or indorse promissory notes, &.c. for and in the name of
Dunning & Knapp.^
It was then shown that the attorney named in the power
made the note in question. In Lucas v. The Bank of Darien, [2
Stewart, R. 320.] it was decided that " The right of one part-
ner to appoint an agent to conduct the business of the concern
results unquestionably from the genuine authority of part-
ners," and that the use of a seal by one partner in giving an
authority to make promissory notes in the name of the firm,
did not invalidate a note made by the agent that the seal af-
fixed to the power, did not in any degree enhance the dignity
of the note as a security for money, but should be treated as
an unessential part of the power. Taking the letter of attor-
ney to have been unexceptionable in point of law, and the
note to have been made by the attorney it designates, we can
conceive of no objection to the admission of the note and pow-
er in evidence to the jury.
2. It was not essential to the validity of the note, that it
should have been negotiated at the Branch Bank in order to
have made it binding on the plaintiff. The power does not
* The conclusion upon this point conforms (o what seemed lo be the practice in
this State at the lime the case was decided, and previously, but according to later
decisions, the note is admissible without first making out a prima facie case, by
parol proof to the Court, and the evidence is adduced ly the jury to show its {jt-U-
uinenuss, or thai it imposes a legal duty.
4
56 ALABAMA.
Knapp v. McBride & Norman.
restrict the attorney to the making of notes to be sold or dis-
counted there. It invests Henry Dunning "with full power
and authority for us (Dunning & Knapp) and in our names to
draw or indorse promissory notes, to accept, draw, or indorse
bills of exchange, and to sign any check or checks, order oj
orders, for any money or effects which we now have, or
hereafter may .have, deposited in the Branch of the Bank of
the State of Alabama at Mobile," &c. Here is a clear author-
ity to make or indorse notes or bills on account of the firm,
without any direction as to form and amount, or place where,
arid to whom payable. The limitation extends only to checks
or orders these must be addressed to the Branch Bank. So
that if Dunning & Knapp had money or other valuables de-
posited in any other Bank, or elsewhere, they could not have
been withdrawn by their attorney.
It may be laid down generally, 'that one partner has the
right to bind the firm by contracts relating to the partnership.
[Collyer on Part. 212.] And if one partner-give a promissory
note in the name of the firm, it would according to the law
merchant be binding on the firm jointly in the hands- of any
bona fide holder. [Collyer on Part. 219,] So in Church vs.
Sparrow, [5 Wend. R. 223] it was decided that where a
general partnership exists, and money' is borrowed by one of
the firm in the name of the concern, all parties are liable, al-
though the money obtained be appropriated by the partner
borrowing it to his own use. And notwithstanding our sta-
tute of 1812, in regard to the assignability of bonds, &c., it is
clear, that if there is no fraud in the concoction of a promis-
sory note, on the part of the party in whose favgr it is" made,
(or his agent,) it would be a valid security against the part-
nership. [Collyer on Part. 240, et. post. ; Alk. Dig. 6,
page 328 ]
If one partner give a security in the name of the firm for
a debt, known to the person taking the security to be his 'in-
dividual debt, if done without the consent of his copartners
it is not binding upon them. [Livingston vs. Hastie, 2 Caine's
R. 246 ; Livingston vs. Roosevelt, 4 Johns. R. 262 ; n. Lan-
sing vs. Gaird, 2 Johns. R. 300 ; Hagas r et. al. vs. Mounts, 3
Blackf. R. 7 ; Taylor, et. al. vs. Hillyer, 3 Blackf. R. 433.]
Nor can one partner bind his copartner without his assent by
_ -JUNE TERM, 1844. 27
Knapp v. Me Bride & Norman,
subscribing or indorsing a promissory note with the. partner-
ship name as security for the debt of a third person with the
knowledge of the creditor. [Rolston vs. Click, et. al. 1 Stewart
R. 526 ; Laverty v. Burr, 1 Wend. R. 529.]
And where a note made by one partner in the name of the
firm is put in suit, it is not incumbent on the plaintiff in the
first instance to show that the note was given for a partner-
ship transaction. It will be intended to have been made in
the course of partnership dealings ; and if it was given for the
individual debt of the partner making it, with the knowledge
of the party to whom it was given, these facts must be shown,
in the defence by the party taking advantage of them. [Doty
vs. Bates, 1 1 Johns. R. 544; Vallett vs. Parker, 6 Wend, R.
615.]
The principles we have stated in regard to the power of in-
dividual partners are either essential to the credit of the firm
er to commercial prosperity, or else result from the settled rule,
that whenever one of two innocent persons must suffer by the
acts of a third, he who has enabled such third person to oc-
casion the loss, must himself sustain it. [Collyer on Part. 241;
2 T. R. 70; 6 Wend. R. 620.J
From the record it appears, "that the said note was execu-
ted in order to raise money to take up a note which had been
executed in the namye of Dunning Knapp to certain vendors
of certain real estate, and which said real estate had been,
purchased by Edward Dunning and one William D. Primrose
for their own account." William D. Primrose is made the
payee of the note, and if he be the same who was concerned
with Edward Dunning in the purchase of real estate he must
have been aware that the consideration of the note did not go
to the account and benefit of the plaintiff. Yet conceding all
this, and the plaintiff in error cannot insist upon a fraud on his
rights as against the defendants. The note is " negotiable and
payable at the Branch of the Bank of the State of Alabama
at Mobile," and to some extent is governed by the rules of
the law merchant. [Aik. Dig. 11, page 329.] Apart how-
ever from this consideration, the note is prima facie binding
on its apparent makers, and by being expressly made negotia-
ble and payable at the Branch Bank, the right of set off or oth-
er kindred defence must be taken to have been waived, not only
28 ALABAMA.
Knapp v. McBride & Norman.
as against the Bank, but against any one who. might advance
on the note without a knowledge of the unfairness of its origin.
[Mandeville vs. Union Bank of Georgetown; 9 Cranch's
R. 11, &c.]
To defeat a recovery on the ground that the proceeds of the
note were applied to the benefit of Edward Dunning alone, and
not to Dunning & Knapp, the plaintiff should have traced a
knowledge of that fact to the defendants. So far from this
having been done, the record does not discover even an effort
to fix upon the defendants any participation in the fraud prac-
tised upon the plaintiff.
There Qan be no donbtbut that the death of either party, how-
ever numerous the association, operates a dissolution of the
partnership, unless such an event is provided for by an express
stipulation to the contrary. [3 Kent's Com. 39; Collyer on
Part., 60, 62, 113; Gow. on Part. 240; Cranshaw vs. Collins,
15 Ves. R. 22S; Gillespie vs. Hamilton, 3 Madd. 251.] So the
death of a party in general revokes all authorities given by
him, whether expressed or implied. Yet in Usher & another
vs. Dauncey & another, (4 Camp. R. 97,) it appeared that a
member of a partnership, consisting of several individuals,
drew a bill of exchange in blank in the partnership name, and
delivered it to a clerk to be filled up for the use of the part-
nership as the exigencies of business might require, accor-
ding to a course of dealing in other inslances r and after the
death of the partner who drew and indorsed the bill, and the
surviving partners had assumed a new firm, the clerk filled up
the bill, inserting a date prior to his death, and sent it into cir-
culation ; it was held that the surviving partners were liable
as drawers of the bill to a bona fide holder for value, although
no part of the value came to their hands.
Lord Ellenborough said that the case came within the prin-
ciple of Russell vs. Langstaff, (Doug. R. 513,) that the power
must be considered to emanate from the partnership
not from the individual partner, and that therefore after his
death, the bill might still be filled up so as to bind the survi-
vors.
The case at bar strikingly resembles that cited from 4th
Campbell in that case the note had no legal existence until it
was negotiated after the death of the partner. Its delivery to
JUNE TERM, 1844. 29
Knapp v. McBride &, Norman.
the clerk with power to negotiate it, did not convey an author-
ity higher or more conclusive than did the power in the pres-
ent case. In the former case, so in this, the partner giving the
power had died before it was executed ; in both, the notes
were antedated, and a collection sought of the surviving part-
ners who had had no direct agency in the transaction, and de-
rived no benefit from it. The instructions to the jury state the
law as follows : " That although the said promissory note had
not been sold to the said Branch Bank, and had not been dis-
counted by, or at any time belonged to the Bank, yet the said
power was sufficient evidence of authority in H. Dunning to
make the said note unless it had been revoked, (a fact for the
jury to ascertain, from the evidence before them,) before the
said note was executed." The Judge did not refer to the
jury the question of law, whether upon the facts the authority
was revoked they were merely to inquire if the evidence
establish the fact of a revocation.
The bill of exceptions does not inform us what were the in-
structions on this point, and we might, therefore^in obedience
to a rule recognized in all appellate Courts, to intend every
thing consistent with the record, in favor of the judgments of
subordinate jurisdictions, infer either that the Judge gave no
instructions ou the point, or that he gave such as conformed to
the law.
It has been decided by this Court, that the party excepting
is required to show affirmatively the existence of the error of
which he complains, and that the Court cannot aid him by
making presumptions beyond what the record discovers.
[Johnson vs. Ballew, 2 Porter's R. 29; to same effect, Rich-
ardson vs. Dennison, 1 Aik. R. 210.] In Adams vs. Ellis,
(I Aik. R. 24) it was held, that if a bill of exceptions be so
drawn up that it cannot be learned from the record, whether
error had intervened or not, though there was some reason to
believe that it probably had, under such circumstances the
Court was bound to affirm the judgment. [See Eaton vs.
Houghtor., 1 Aikin R. 380.]
There can be no question but a party has the right to require
the opinion of the Court upon any point of law that is perti-
nent to the issue, and the refusal of the Court to give such
opinion would be available on error. Jlut the mere neglect
30 ALABAMA.
Gray v. Turner, use of Johnson.
or omission of the Judge to instruct the jury on some material
point, though it might sometimes furnish just ground for a new
trial, will riot warrant a reversal of the judgment. [Smith, et.
al. vs. Carrington, et. al. 4 Cranch R. 71 ; Church' vs. Hubbard
2 Cranch's R. 239, and Aik. Ala. Dig, 5, 254.]
It is the conclusion of the Court that the bill of exceptibns
does not discover any error in the charge of the Judge to the
jury.
The judgment is consequently affirmed.
. GRAY v. TURNER, USE OF JOHNSON.
*.
When the person for whose use a suit is instituted dies pending the suit, it is not
necessary that his personal representatives should be made parties, but the
suit proceeds in the name of the nominal plaintiff.
Writ of error to the Circuit Conrt of Russell County.
ASSUMPSIT in the County Court by Turner, who sues for the
use of Johnson, against Gray, as the maker of a promissory
note. At a term subsequent to the filing of the declaration,
the defendant suggested the death of Johnson, for whose use
the suit was brought, arid prayed that no proceedings should
be had until his personal representatives were made parties.
The plaintiff's attorney conceded the death of the cestui que
use, but declined to make his representatives parties. The
Court therefore decided that the suit abate, and rendered judg-
ment that the defendant go hence without day. A writ of
error was prosecuted by the plaintiff to the Circuit Court,
when this matter was assigned as error. The Circuit Court
reversed the judgment of the County Court, and remanded
the cause. Gray now prosecutes this writ of error, and as-
signs that the Circuit Court erred in reversing the judgment of
the County Court.
JUNE TERM, 1844.
Gray v. Tuiner, use of Johnson.
HARRIS for plaintiff in error, insisted that the cestui que
use was in fact the real party to the 'suit, as by the nominal
party's admission, the equitable interest is not in him. Sup-
pose an off set insisted on against the one for whose use the
suit is brought, how can the nominal party litigate that mat-
ter? Besides the statute, [Clay's Digest, 31t>, 22] allows
costs against that party, and impliedly takes away the right
for costs against the nominal plaintiff.
HEYDENFELDT, contra, cited Clay's Digest, 312, 3.
GOLDTHWAITE, J. Although the individual for whose
use a suit is instituted is, to some extent, regarded by our sta-
tutes as the actual plaintiff, yet we do not think he is so for
every purpose. In the case of Brown vs. Foster, 4 Ala. Rep.
2S2, after referring to the statutes which bear upon this prac-
tice of suing for the use of another, we say that we are not
aware of any decisions here or elsewhere, which gives. such a
suit any other effect against the defendant than to exclude ev-
idence of admissions made by the nominal plainti/f pending
the suit. On principle this admission of interest in another
seems to stand on the same footing as any other, except^hat it
affords evidence that the defendant is advised of the transfer
of the interest in the suit. The County Court seems to have
proceeded upon the ground that the beneficial interest in the
suit was actually transferred to the person for whose use it
was brought ; but conceding this to be the effect, it will
not follow that his personal representatives, in the event of
his death, must be made parties before it can properly pro-
ceed. It is insisted that tins consequence results from the sta-
tute which allows costs to be given against the person for
whose use the suit is brought. [Clay's Digest, 366, 22 ]
This -does not however, make it obligatory upon the defendant
so to enter his judgment, but only permits him to do so if he
deems it expedient. The previous statute which allows the
suit to proceed, notwithstanding the death of the nominal
plaintiff, [ib. 313, 3,] is of the same nature, and was intend-
ed to give a right which did not previously exist. The ob-
ject in both enactments seem to be, to relieve this convenient
practice from the difficulties which existed, growing out of the
circumstance, that the legal and beneficial interests is disjoined.
S3 ALABAMA.
Carleton & Co. v. Banks.
In the present condition of this suit the defendant cannot be
debarred from any right which he might have, if the benefi-
cial plaintiff was yet alive, except that the election is taken
away, to have costs rendered against his personal represeiHa-
tives, in the event of gaining the suit.
Judgment affirmed.
CARLETON & CO. v. BANKS.
1. An act of the Legislature authorizing a married woman to act and dispose of
all property subsequently acquired by her, by her own exertions, or from other
persons, as a feme sole, with a saving as to existing creditors, will not have a re-
trospective effect, so as to deprive the husband or his creditors of the benefit of
any property which previously belonged to the" wife.
2. Previous to marriage a deed was executed conveying to a trustee a slave, and se.
curing to the female a life interest therein, with remainder to others. The
tritftec delivered the slave to the female, who either before or after such delivery
married. Held that the life estate was subject to sale, under execution, by the
creditors of the husband, notwithstanding the act previously cited ; and (bat it
was unimportant whether the possession was delivered before or after the pas-
sage of this act.
3. Whether the sale would affect the right of survivorship, queret
Error to the Circuit Court of Tuscaloosa County.
>
THE plaintiffs in error having obtained a judgment against
Francis Hatfield and others, sued out their execution and le-
vied it on a slave as the property of Hatfield, which was claim-
ed by the defendant in error as trustee, and the proceedings
in the Court below were had to try the right of property,
The claimant relied on a deed made on the 4th May, 1832,
between William Dunlap of the first part, Willis Banks (the
claimant) of the second part, and Harriet Smitn. of the third.
The deed conveys two slaves to the party of the second part,
upon the trust that "he will permit the party of the third part
to have and retain possession of the slaves and their increase,
and to receive and enjoy the profits thereof, for and during the
JUNE TERM, 1844. 33
CarletoH & Co. v. Banks.
term of her natural life, and at her death, said nearo girls, with
their increase, to descend to the issue of her body ; and in the
event that she dies without issue, then said negro girls and
their increase, to descend to Nancy Smith, mother of said Har-
riet, and to thfe children of said Nancy." The deed contains
a-covenant that the trustee will convey to those in remainder,
on the death of the party of the second part without issue.
The complainant also read to the jury an act for the relief
of Harriet Hatfield, passed 14th December, 1841, and proved
that Harriet Smith, named in the deed, married Francis Hat-
field, and that the slave levied on is one of the slaves mention-
ed in the deed.
It was proved that the slave was in' the possession of Hat-
field and wife;, at the time of the levy, and for some time be-
fore, but the proof was not clear or. conclusive as to the time
when it went into their possession.
The Court charged the jury, that if the slave went into the
possession of Harriet before the passage of'the act for her re-
lief, and wa*s so in possession after her intermarriage tvith Hat-
field, then the interests of Hatfield in the slave was liable to the
execution. But, that if the slave was not in their possession
until after the passage of the act, then the possession would
be her possession, and not subject to the execution against
Hatfield. To the last charge the plaintiff excepted, and asked
the Court to charge the jury that in the absence of proof the
presumption from the deed would -be that the cestui que use
went into possession under the deed, which the Court refused,
and the plaintiff excepted.
The assignment of error brings to view the propriety of the
charge giveo, and that refused.
CRABB, for plaintiff in error.
PECK & CLARKE, contra.
ORMOND, J. The act of the Legislature passed for the
benefit of Mrs. HatfieJd is to the following effect : That from
and after the passage of this act, it shall be lawful for Harriet
Hatfield, of the county of Marengo, to take, receive and hold
by purchase, gift or inheritance, any property, either real or
personal, free from the hindrance, molestation, control or au-
5
34 ALABAMA. .
Carleton & Co. v. Banks.
thority of her husband, Francis Hat-field, and the same to dis-
pose of by will, gift or sale, in the same manner as if she were
a feme sole: Provided, the provisions of ,4his act shall ap-
ply only to such property as she shall acquire by her own ex-
ertions, or from other persons, and shall not operate to the
prejudice of existing creditors, as to property heretofore ac-
quired."
It is very certain that it was net intended by the Legislature
that .this act should have a retrospective operation, it cannot
therefore have any effect upon any right of the husband or his
creditors, which existed anterior to this act. The right, what-
ever its character may be, which was conveyed by the deed to
Mrs. Hatfield, existed many years previous to the passage of
the act, and was by the marriage, and subsequent reduction,
into possession, vested in the husband ; the Court, therefore,
erred in supposing that if possession of the slaves have not
been -taken by the husband and wife, until after the passage
of the act, it would not enure to the benefit of the husband.
The possession when taken, must be referred to the authority
under which it was taken, and as that existed long anterior to
the passage of this act, it is not affected by it. The question
whether the slaves came to the possession of the husband and
wife before or after the passage of the act was unimportant;
and it is not necessary to consider the propriety of the refusal
of the Court to charge upon the presumption of possession, in-
sisted on by the plaintiff. It is, however, contended, that con-
ceding that the Court erred in its charge to the jury, yet as the
right of the wife was a mere equitable interest, it was not the
subject of sale by execution at. law, and could only be reached
by the creditor on application to a Court of Chancery.
Marriage is, in law, a gift to the husband of all the personal
property of the wife, in which she has an actual or beneficial
interest. If in possession, it vests immediately upon the mar-
riare. If if be a chose in action, it must be reduced to the
possession of the husband during the coverture, or it will sur-
vive to the wife on the death of the husband. If the interest
of the wife be equitable in its nature, and to reduce it into
possession, it is necessary to resort to a Court of Chancery, that
Court will refuse its aid, unless the husband makes a suitable
provision for her out of the fund sought to be recovered. [Bond
JUNE TERM, 1844. 35
Carleloo &, Co. v. Bahk.
v. Simmons, 3 Atkins, 20 ; Langhorne v. Nanny, 3 Vesey 469 ;
see the general doctrine, 2 Story's Eq. 634, 1406, and Roper
on Husband and Wife, 256.]
In England, the wife's personal chose in action consists, usu-
ally, of either money in the hands of another, or stocks, and in
such cases it is perfectly clear, that the husband, after having re-
duced it into possession, acquires full dominion over it. The
estate of the wife in this case, being the ustffruc( of the
slaves -during Her life, is supposed in argument to present a
different case. In our opinion there -is no difference what-
ever between them as to the, question now before the Court.
If the wife's chose in action is money in the hands of a
trustee : as for example, a legacy ; or, if it be a security for the
payment of an annual sum, as an annuity, or a certificate of
stock or Bank shares ; in either case, upon .a reduction into
possession, the husband is invested with full dominion over it;
because his title to it is the same as would be that of his wife
in possession, if she had remained sole. In this case it is
true the interest of the wife in the slaves is for life only, but
that interest is as absolute and unqualified, as if it were for
the life of the slave. Her right to the possession and services
of the slave is subject to no contingency, nor to the control of
any other person. The trustee in whom the legal title is vest-
ed ftr the purpose of the remainder, has no more right to
disturb her possession than a stranger. If he had refused to
deliver the possession according to the stipulations of the deed,
he could by suit, eithei; by the wife before marriage, or by ihe
husband afterwards, have been compelled to deliver it, after
which he would be estopped by his own deed, from asserting
any right to, or disturbance of the possession.
The case of a leasehold estate belonging to the wife, ap-
pears to furnish the closest artalogy to this of any we can find
in the English- books, and it appears io 'be settled, that the
husband may assign it, and that whether the estate be legal
or equitable, the assignee will take it discharged from the
equity of the wife. [Bates v. Dandy, 2 Atkins 207 ; Druce v.
Dennison, 6 Yesey, 385; -Shannon v. Bradstreet, 2 S. &. Le-
froy, 52'; 2 Story Com. on Eq 636, 1410.
Again, it appears there is a difference between an absolute
equitable interest in the wife, and an interest for life only.
36 ALABAMA.
Carleton & Co. v. Banks.
Thus, in Stanton v. Hale, 2 Russ. & M. 175, it was held, that
a married woman could not, as against the assignee of the
husband, claim a settlement out of an annuity for life be-
queathed to her, the' husband having afterwards become in-
solvent: The same doctrine was asserted, in Elliott v. Cor-
dcll, 5 Madd. 149.
f It must be kept in mind that the principle we have been
considering is applicable only, when .the husband or his as-
signee are endeavoring, by the aid of a Court of Chancery, to
get possession of an equitable chose in action of the wife.
If it be legal in its nature, so that the husband or his assignee
is not compelled to seek the aid of Chancery to obtain the
possession, the equity of the wife to a settlement does not
arise. .Indeed the equity, of the wife has no existence, but in
the power of the Chancellor to refuse his aid, unless a provi-
sion is made for the wife. In this case, however,, the trustee
yielded the possession, and it is therefore entirely unimportant
whether the interest thus reduced into possession, was legal or
equitable; in either case, after such reduction by the husband
into possession, it becomes-his property to the full extent of the
interests of his wife.
It is very 'clear that the effect, as it respects the husband's
right to the thing, must be 'the same, whether he obtains pos-
session of it by suit, or by the' voluntary delivery of the 1 per-
son in possession. If in the case of an equitable. chose in ac-
tion, the trustee chooses, without suit, to put the husband in
possession, the equity of the wife to a settlement would be
gone. In. Murray v. Lord Ellibank, 10 Vesey, 89, Lord El-
don, speaking of an equitable chose in action, says, " The hus-
band where he can, is entitled to lay hold of his wife's proper-
ty, and this Court will not interfere. -Previously to a bill
filed, a trustee who has the wife's property, real or personal,
may pay the rents and profits, and may hand over the per-
sonal estate to the husband." It is therefore, perfectly clear,
that by this reduction into possession, in this case, the husband
acquired all the interest which his wife had in the slaves, and
it is entirely unimportant whether they came to the possession
of the wife before marriage, or were reduced to possession by
the husband afterwards. What is this interest? It is an es-
tate for the life of the wife, in the slaves in controversy. This
JUNE TERM, 1844. 37
Carleton & Co. v. Banks.
is a chattel ; it is a certain definite, tangible thing; is suscep-
tible of transfer and sale, and may therefore be levied on and
sold by execution. How does this differ from any other sim-
ilar interest of the wife? Suppose a .woman at her marriage
to be the heir of a slave for an unexpired time, it cannot be
questioned that such an interest would vest in the husband,
and might be sold by execution for the payment of his debts ;
notwithstanding the legal title was outstanding in another.
If Mrs. Ha; field had remained sole, can it be questioned that
she could have sold her life interest, or that it would be liable
for the payment of her debts? Yet the interest of the husband
in possession, is precisely the interest which the wife had be-
fore marriage. Whether a voluntary sale by the husband,
or a safe- made under execution by his creditors, would affect
the wife's right of survivorship, should she outlive her hus-
band, is a question we are not. called on to determine ; it is
certain it could' not affect the interest of those iu remainder.
The result of onr examination is, that this was such an in-
terest as was the subject of sale by execution, if reduced to
possession by the husband, and the Court erred in supposing
that the act of 14th December, 1841, was intended to affect
the right of the husband to the interest of the wife in the
slaves in controversy.
Let the judgment be reversed and the cause remanded.
GOLDtHWAITE, J.I dissent from the opinion deliver-
ed by Judge ORMOX'D, because I think this a very clear case for
Mr. Banks on the question of title.
It seems to me, whatever may be the equities of Mrs. and
Mr. H. under the deed of trust executed by Mrs. Smith, that
Banks was thereby invested with the legal title \o the slave in
controversy, and that it must remain in him until the complete
execution of the trust, unless he is removed by competent
authority.
But it is said, the possession of the slave by H. after mar-
riage, constitutes a legal title, which is subject to execution, the
more especially, as the trusc, or use, will be considered as ex-
ecuted, so far as the life estate of Mrs. H. is. concerned, by
the delivery of it to her or her husband pursuant tft the deed.
This argument demands consideration, for upon it, as it seems
to me, the decision of the Court is based.
38 ALABAMA.
CarJeton & Co. v. Banks.
1 concede that the possession of a chattel invests the pos-
sessor with a legal title, which prima facie is subject to exe-
cution. It is on this idea that our decisions rest, that the* es-
tate of the mortgagor, &c. in .chattels, may be seized and sold,
when he remains in possession previous to the law day ; but
this concession will not. warrant the conclusion that the sheriff
can hold the-chattel against one who is invested with, or has
a better legal title. Even with respect to mortgages arrd
deeds of trust, we have held that where the levy was before
the law day, and a demand of the sheriff was made after it,
that he was liable to the mortgagor or trustee for a conversion.
[Magee v. Carpenter, 4, Ala. Rep. 469.] This, I believe, is
not controverted", and therefore the right of the execution- cred-
itor of H. must rest on the supposition, either that Banks nev-
er had the legal title, or, if he had, that it was ipso facto ex-
tinguished for the lifetime of Mrs. H., so soon as she was per-
mitted to have the use of the slave ; a permission which Banks
was bound 'to accord, and which a Court of- equity would
have compelled. In Lewis v. Adams, 6 Leigh. 320, a father
executed a deed, conveying slaves to a third person "intrust
for his daughter and all her children." The slaves were de-
livered into the husband's possession, and afterwards levied on
by a creditor. The objection was taken that this was not a
trust estate, inasmuch as the trustee had no duties to perform ;
but the Court held otherwise. In Virginia, I infer from one
reference made by Judge Tucker, in the case of Roane v.
Archer, 4 Leigh. 550, 568, there is a statute which allows the
sale, under execution, of trust estates in possession of the ces-
tuis qua trust; yet there it was determined that the trustee
might sue the sheriff who had sold slaves conveyed to the
wife and husband during their joint lives, and the remainder
to their children. These cases, in my judgment, prove clearly
that the legal title to the slave in controversy was in Banks
by the execution of the deed ; and also, that his title was in
no way affected by allowing Hatfield and wife to have the
possession. I may also add, that it is laid down by elementary
writers, that a use may be created of a chattel as well of
lands. [Lewin on Trusts, 4.] And further, that if this deed
is to be construed as passing the title directly from Mrs. Smith
to her daughter, it, by the common law rule, would invest the
JUNE TERM, 1844.
Carleton & Co. v. Banks.
whole title, as by that no estate in remainder, of a personal
chattel, can be created by deed. [3 Black Comm., 398.] ' It
is equity which allows a remainder, either contingent or vest-
ed, to be made by a conveyance in trust. [Hargraves note,
5 Coke Litt. 20 a. 3 vol. note, 120.] Unless the legal estate
remains in Banks he cannot, after the deteimination of the
life estate of "Mrs. H. place the -slave in the possession of the
person entitled to the remainder, without a trespass upon the
rights of some one having the; legal title. These reasons and
decisions are perfectly satisfactory to my mind that Banks has
the legal title to the slave ; and, if this is true, I presume it
will not be disputed that he may sue at law any one who in-
termeddles with it; and that a Court of law cannot for any
purpose whatever, recognize the title of the cestui qtte trust.
[Lewin on trusts, 20.]
The fact that the legal. title is in "Banks, would of itself be
sufficient, in my opinion, to save the judgment from reversal;
but as this point merely settles that the creditor cannot pursue
the-life interest of Mrs. H. at law, I am willing to concede it
is of little value if the creditor has the right to- subject her inter-
est to the payment of this debt in any form;- if he is entitled to
sell her life estate without any qualification, it is of little impor-
tance whether he does it under execution at law, or by direc-
tion of a Court of equity. Indeed, in all cases, the leaning of
my mind is to get at the result, when it is to be the same in
either Court, as speedily and as cheaply as possible.
But I think there is no case, in which a creditor can at law
pursue the. equitable estate of the wife for the satisfaction of a
debt due from her husband. It has been held by very high
authority that a creditor, as such, cannot go into equity to sub-
ject either the choses in action, or equitable estate of the wife.
[Gallego v. Gallego, 2 Brock. 285.] Waiving the distinction
between a creditor, as such, or the assignee under a decree of
bankruptcy or insolvency, and considering both to have the
same rights, I shall consider what are the rights of the wife
with respect to an estate held for her use by the intervention
of a trustee; and I also lay out of view the value of property,
inasmuch as I presume there is no such rule recognized in this
country, as obtains in the English Equity Courts, where two 1
40 ALABAMA.
Carleton & Co. v. Banks.
hundred pounds is said to be the minimum of jurisdiction.
[Foder v. Finn'ey, 4 Russ, 428.].
By the common law, marriage is a gift by the wife of all the
personal chattels which she has in .possession, and of all the
ohoses in action to which she is entitled, if the husband shall
reduce them to possession during the coverture. In relation to
equitable estates, as the common law knew nothing about
them, it was silent ; and Courts of equity, hooking beyond the
mere arbitrary rule to its reason, have, by a gradual course of
decision, built up a system to govern the equitable estates be-
longing .to married women, which is termed the wife's equity.
Some eminent jurists have thought it not easy to ascertain the
precise origin of this right of the wife, or the precise grounds
on which it was first established. [Murray. v. Elibank, 10
Vesey, 90; 13 Ib. 6; 2 Story's Eq. 635, 1407.] But others,
with more propriety, in my opinion,^ refer ihe jurisdiction to
the reason which induced the common law to give the hus-
band the wife's property. [Elliott v. Cordell, 5 Madd. 155.]
This reason is, that the husband is bound to support and main-
tain his wife, therefore as long as he does so, a' Court of Equity
will allow him to receive the income of his wife's equitable es-
tate. [2 Story Eq. 642, 1415.] But, in general, he will not
be permitted to receive the principal, nor to assign it to a pur-
chaser, even for a valuable consideration ; nor will his assignee
in bankruptcy or insolvency, take it discharged from the wife's
equity. He, and any one claiming under him, \will be com-
pelled to .make an adequate settlement upon the wife and her
children before receiving the principal sum. [2 Story on Eq.
639, and cases there cited, 641, 1412, 1414 ; Kenny v. Udall,
5 John. Ch. 473, S. C. 3 Cow. 590 ; Elliott & Wife v. Waring,
5 Mon. 340 ; Bennett & Wife v. Dillingham, 2 Dana, 437.] So
far is the future maintenance of the wife looked to in England,
that there the husband will neither be permitted to sell his.
wife's reversionary interest in an equitable estate, although she
join in the sale. [Purdew v. Jackson, 1 Russ. 1; Homer v. Mor-
ton ; 3 Ib. 65.] Nor will the Court permit it to be conveyed
to the husband Absolutely, though she join in the petition.
[Stifle v. Everett, 1 Mylne, &c. 37.] The wife's equitable es-
tate in a term of years, is an exception to this rule^created by
the House of Lords, against the opinion of the Chancellor.
JUNE TERM, 1844. 41
Carleton & Co. v. Banks.
[Sir Edward Turner's case, 2 Veru. 7.] But then, and since,
disapproved, though followed. [Tudor v. Smayne, 2 Vern.
Rep. 270.] Another apparent exception, that the husband
when solvent and maintaining his wift may sell, bona fide,
his wife's equitable estate for life, is settled by the cases of El-
liott v. Cordell, 5 Madd. 155, and Stanton v. Hall, 2 Russ. &
M- 175 though even in these it is distinctly admitted that if
the husband was bankrupt or insolvent the wife's equity
would attach to the general assignee. In Virginia, it has been
directly determined that. a creditor could not pursue slaves set-
tled by deed of trust on the wife and husband for their'joint
uses, with remainder to their children. [Roane, v. Archer, 4
Leigh. 550; Scott v. Gibson, 5 Munf. 569.] The effect of the
cases of Elliott v. Cordell and Stantou v. Hall, ki ruy judgment,
is greatly misapprehended, if they are supposed to sustain the
opinion of the Court; for they establish nothing farther than
that the wife, whose equitable estate in personal chattels has
been sold by her husband, at a time when he was solvent and
maintaining her, has no equity during the life of her husband
against the purchaser. That they do not touch or impair the
general rule, or even the wife's right of survivorship, is evi-
dent, from the more recent case of Stiffe v. Everett, 1 Mylne,
&c. There the wife joined her husband in a petition to have
her life interest in some' funds transferred absolutely to him;
but the Master of the Rolls (see C. C. Pepey's) denied the ap-
plication, and said", he doubted the-jight of the husband, even
with the wife's consent, to dispose of her entire life estate, in-
asmuch as she might outlive her husband ; in which event that
part of the estate to be enjoyed after his death would be re-
versionary, only. The same individual afterwards, when
Lord Chancellor, reheard the cause, when he said no .cases
had been produced to support the petition, and he believed it
certain that none could be found, as such a notion was in di-
rect opposition to the decisions in Perdew v. Jackson and
Homer v. Morton, 1 Russ. 1 ; 3 Ib. 65. This determination
certainly never would have been made, if it then had been
supposed, the husband was entitled absolutely to sell his wife's
reversionary interest in her equitable life estate. Chancellor
Kent has carried the idea of the wife's equity so far as enjoin
p creditor from selling the husband's estate by curtcsy in lauds
6
ALABAMA.
Carlise v. Davis.
of his wife, when she had been abandoned by him. [Haviland
v. Bloom, 6 John. C. 117.] -It is true, in this case there was a
divorce a mensa et thora, but, he saysj the wife's equity, inde-
pendent of that circumstance, would warrant the relief.
I am not prepared to say how far the wife's equity ought t o
be sustained here ; but certainly it must be conceded that un-
der peculiar circumstances she has it not cmly against her hus-
band, but against any one claiming under him. This right o f
the wife is incapable of examination or of adjustment in a
court of law ; and therefore, a creditor seeking to charge the
equitable estate of the wife, in my opinion, must resort to a
Court of equity. My judgment dlso leads me to the conclu -
sion, that neither Halfield or his wife have any legal estate in
the slave in controversy, which can be Successfully used by
his creditor, to defeat the clarni of the trustee 3 under the deed
of Mrs. Smith.
CARLISLE v. DAVIS.
1. Where a cause has been tried upon an issue of fact, and verdict judgment
thereupon, it will be intended on error, that a demurrer to the declaration, found
in the record, which does not appear to have disposed of, was withdrawn by
the defendant.
2. Where an action is brought upon a promissory note, with an affidavit of its loss,
if the plaintiff has it, at the trial it may be read to the jury.
3. A writing in the form of a promissory note for the paymenf of a sum of money
'in the common currency of Alabama," is not an undertaking to pay the sum
expressed in coin, but in bank notes, which was the common currency of the
State when the writing was made ; consequently it is inadmissible under a de-
claration describing it as a promissory note for the payment of a ^um in nu-
mero, and unassisted by other proof, it will not sustain a recovery upon the com-
mon counts in essumpsit.
4. Querc If the defendant demurs to the evidence adduced by the plaintiff, and
the jury notwithstanding return a verdict, and such judgment was rendered a a
would have been proper on the demurrer, is- {he failure to withdraw the cause
from the jury available on error ?
/ '
Writ of error to the County Court of Perry.
JUNE TERM, ,1844. 43
Carlisle v. Davis.
THIS was an action of assumpsit, at the suit of the defendant
in .error against the plaintiff. The first count is on a promis-
sory note, dated the 16th of September, 1842, for the, payment
of one hundred and fifty dollars, on the first day of January
thereafter, to the plaintiff, in Alabama money. To this the
common couuts are added. There was a demurrer to the first
count, and non assumpsit and set off, pleaded to the other
counts in particular, and also to the entire declaration. No
notice seems to have been taken of the demurrer, but the cause
was put to the jury on the issues of fact, who returned a ver-
dict in favor of the plaintiff for the amount of the note and
interest, and judgment was thereon rendered.
On the trial, the defendant excepted to the ruling of the
Court. From the bill of exceptions, it appears that the plain-
tiff offered to read to the jury a promissory note, subscribed
with the defendant's name, of the following tenor, viz: "By
the first day of January next, for value received in the rent
of land, I promise to pay William C. Davis, one hundred and
fifty dollars, in the common currency of Alabama. Sept. 16th
day, 184.2." And having proved the signature of the maker,
offered to read it to the jury, to which the defendant objected ;
but his objection was overruled, and the note was read. The
plaintiff further proved, that the note in question had been lost,
as appeared from an affidavit made before the commencement
of the suit, and the recital in the declaration, but had been
since found, and here closed his testimony. The defendant of-
fered no evidence, but demurred to that adduced by the plain-
tift It is not shown that the County Court disposed of the de-
murrer, or in any manner noticed the same.
A. GRAHAM, (of Perry,) for the plaintiff in error.
THO. CHILTON, for the defendant.
COLLIER, C. J. In respect to the demurrer to the first
count of the declaration, it must be considered as waived, by
the defendant's going to trial without objection, upon the issues
of fact. This we have so often held, that it cannot be neces-
sary to cite the numerous cases to the point.
The objection to the admission of the note to the jury was
general, without specifying for what cause it was made ; and
44 ALABAMA.
Carlisle v. Davis.
it is here assigned" as error in terms equally indefinite. If it
had been placed upon the ground that the note was alledged
to have been lost when the suit was commenced, we should
not hesitate to say, that the subsequent finding would not pre-
judice the plaintiff's right of recovery. In such case, the note
would not only be admissible evidence, but having found it,
the plaintiff could not of" course prove its loss at the trial, and
if he could not use it to sustain his action, he would be con-
strained to dismiss his suit, and commence de novo. No rea-
son, resting upon principle, is perceived, why such a result
should be coerced. If such a course were- necessary, this
would be to make the plaintiff's good fortune in recovering
the evidence of his debt, a real misfortune to him.
But. the note should have been excluded, upon the ground
that it is not correctly described in the declaration, and does
not support either of the common counts. In Young v. Scott,
adm'r. 5 Ala. Rep. 475, after noticing the course of decisions
in this and other States, we held, that an action of debt would
not lie upon a note to pay a sum certain, in current bank
notes. The reasoning which led to the conclusion attained
in that case, was, that bank notes were not money, although
they might profess to be its representatives ; that the payee did
not expect to receive, nor 'the maker to pay the numerical sum
in coin : and that under such circumstances, the measure of the
recovery, would be the value of the bank notes reduced to the
specie standard, at the time the note matured > with interest.
The note given in evidence in the present case is payable
in the common currency of Alabama. Currency is a word
of extensive application. It means, among other uses, a con-
tinual passing from hand to hand, and circulation ; as the cur-
rency of coin, bank bills, bills of credit, &c. As applied to
contracts to pay money, it must be understood in the sense in,
which the parties intended it, if their intention can be ascer-
tained. We can have no difficulty in determining its meaning
in the case before us. The laws of this State have provided for
the establishment -of Banks, and the emission of a vast paper
circulation as the representative of mondy. This paper we must
know at the time the note in question was made, was the
common currency ; it was paid and received in all ordinary
JUNE TERM, 1844. 45
Carlisle T. Davis.
transactions, though it had depreciated greatly below its par
value.
This being the case, the note must be regarded as a promise
to pay a sum in numero in bank bills, and to it, the rule reit-
erated in Young v. Scott, which admeasures the recovery by
the value of the bills, must be applied.
It will result from this view that the note is not correctly
described in- the first count. There it is said that the promise
is to pay in Jllabama money, which it has been held, is in
legal effect, an undertaking to pay in gold or silver. [Carter
and Carter v. Penn 4, Ala. Rep. 140.] Under the first count
then the note was inadmissible.
In respect to the common count, without deciding |what
would have been its effect if assisted by other proof, we are
satisfied that per se it was insufficient to sustain either of
them ; because it is not a promise to pay money prima facie
it was inadmissible, and to have changed the phase of things
in this respect, if allowable, the plaintiff should have pro-
posed it in connection.with other evidence which was perti*
ndnt and material
Conceding that the demurrer to the evidence was interposed
in such form, that the County Court should have withdrawn
the cause from the jury, and rendered a judgment without
their aid, yet if the verdict and judgment thereon; were such
as the judgment should have been upon the demurrer, we
would not be inclined to reverse it for a mere harmless irregu-
larity. The record does not state the demurrer, so as to ena-
ble us to determine whether it should have been entertained ;
aqd we need not add more upon this point of the case.
It sufficiently appears from what has been said, that the
judgment. must be reversed, and the cause remanded.
GOLDTHWAITE, J I do not controvert that the opinion
just pronounced, is in accordance with previous decisions in
this State at an earlier period ; but I take occasion to express
my dissent from the conclusion, that an undertaking to pay in
Alabama money, has the legal effect to warrant a recovery for
a less sum in specie. *
46 ALABAMA.
Hopkins v. Gary, et al.
HOPKINS v GARY, ET. AL.
The question, whether the defendant is, or is not sheriff, is involved in an issue,
upon a motion against one as sheriff, for failing to make the money upon an
execution.
Writ of error to the County Court of'Sumter County.
THIS proceeding is a suggestion by Hopkins, that Gary, as
the Sheriff 'of Sumte'r,- could, by the use, of due diligence,
have made the money on an execution placed in his hands for
collection. In order fully to .understand the questions raised
in this Court, it is necessary to state at length the proceedings
in the Court below.
On the llth day of July, 1842, a notice was served on Gary,
informing him that Hopkins would move the County Court of
Sumter County, to. cause an issue to be made up to try the
fact, whether Gary could with due diligence, have made the
amount of a certain execution issued from said Court, and ful-
ly described in the previous part of the notice; and, if it
should be found that the amount of the same could have been
made by the said Gary, then he should move the said Court
for judgment against Gary and his sureties for the. amount
of the execution, with ten per cent, as damages, &c* This no-
tice was executed on Gary, and also on Houston and Tarbo-
rough, two of his sureties, but was not executed on the other
sureties.
At the July term, 1842, of the Court, a suggestion in these
terms was filed : " John H. Hopkins, by attorney, suggests to
tiie Court, that Mathias E. Gary, sheriff of the county afore-
said, could, with due diligence, have made the amount of
money specified in an execution, issued out of this Court, and
returnable to the present term thereof, in favor of the said
plaintiff, and against John McGrew, for 327 13-100 dollars,
with interest on the same from the 23d day of February,
1842, and also the sum of 12 18-100 dollars. Which said ex-
ecution came to the hands of the said sheriff to be executed."
No proceedings seem to have been had on this notice arid
suggestion, either at the July term, 1842, or at the next term,
JUNE TERM, 1844. 47
* Hopkins v. Gary, el !.
but at the July term, 1M3, the suggestion was renewed, and
the proceedings connected with it are thus stated in the trans-
cript :
" This day came the plaintiff, and suggested in writing to
the Court, that M. E. Gary, sheriff of Sumter county, could,
&c. (setting out that, the money could have been made by
him with due diligence,'on a certain execution therein stated.)
Upon which suggestion being made, the Court ordered the
clerk of said Court t make up the issue by ordering a gener-
al denial of the facts suggested: (This denial was written on
the ba*ck of the notice returnable to the July term, 1842.)
This being done, Samuel VV. Inge, Esquire, as amicus curias,
suggested to the Court, that no notice had been given to the
sheriff of the suggestion ; whereupon the Court decided, that
notice was necessary, and the plaintiff's counsel offered to
show to the Court, that notice had been given, which the Court
ruled it would hear, no objections being made. Whereupon
the counsel offered the notice returnable to the July term,
1842, with the Coroner's return thereon. , The counsel then
swore, that since the last term of the County Court, and du-
ring vacation, he had verbally informed Gary, that the mo-
tion, which in that notice was proposed to be made at the
term before the last, would be renewed at the July term, 1843,
and that this verbal notice was given with direct reference to
said written notice. And Gary, after some conversation, and
an explanation as to what case it was, said he would be ready
for trial. Since the present term..(July, 1843) the witness again
verbally informed Gary of the same facts, and that the motion
would be made this day, (the day when the trial was had,)
and he again said he would be ready for trial. Whereupon the
Court decided, said notice was insufficient, inasmuch as the re-
cords did not advise the Court of the continuance of any mo-
tion made at the last term of the Court to the present term;
and that a notice in writing, advising the sheriff of the sug-
gestion made, was necessary, before a trial could be had, arid
suggested thereupon that the cause should be continued. The
plaintiff's counsel then inquired of the Court, what order it
made in the case, and was informed that the Court made no
order, but would leave the plaintiff to pursue his own course.
The counsel then said, that if the Court ordered that he should
48 ALABAMA.
Hopkins V. Gary, et al. .
give notice to the sheriff he should decline doing so ; to this
the Court replied, it would leave the counsel to take his own
course. The counsel then said, if the Court permits the plain-
tiff, he will go to the jury, and the Court answered, that it
would interpose no objection to the counsel in managing the
case in his own way ; that he could go to the jury if he
thought proper, but the court would instruct the jury that no
notice had been given to the sheriff, and if they should find
such to be the fact, the plaintiff could not recover. Where-
upon the plaintiff put his case to the jury, and after argument,
the Court decided, that it would decline to give the charge
previously intended as to notice ; but it instructed the jury
that the question of notice was not involved in the issue ; and
the simple question Was that presented in the issue ; if they
found that the sheriff could, with the use of due diligence,
have made the money mentioned in the execution, they must
find for the plaintiff, provided the plaintiff had also proved to.
their satisfaction, that Gary, the party sought to be v charged
as sheriff, was sheriff at the time the want ef diligence is.
charged ; otherwise they must find for the defendant. Where-*
upon the plaintiff excepted.
The bill of exceptions is not certified with the transcript,
but one was agreed on by the parties, and substituted by con-
sent. This states that the question, whether Gary was sheriff,
was not submitted to the jury -for decision, except as it was
embraced in the solution of the question, whether Gary could
have made the money with due diligence. The Court charg-
ed the jury, that the question, whether Gary was sheriff was
embraced in the question submitted to them, and that unless
the plaintiff had proven that Gary was sheriff, they must find
for the defendant.
A verdict was found for the defendant, on which he had
judgment.
The plaintiff prosecutes the writ of error, and here assigns
that the Court erred :
1. Because the judgment entry contains matter not proper
for a judgmetu, and creating unnecessary cost.
2'. In deciding that the sheriff had no notice.
3. In the intimations, as shown by the judgment entry,
JUNE TERM, 1844. 49
Hopkins v. Gary, et al.
which were calculated to prejudice the jury against the plain-
tiff's right, on the facts.
4. In assuming a fact in the case, that no notice had been
given, and then determining that it 'was st question for the
jury.
5. In the charge to the jury as shown by the bill of ex-
ceptions.'
_> * ; '' k'
R. H. SMITH, for the plaintiff in error, made the following
points :
1. No notice \vds necessary. [Clay's Dig., 218, 85; Reid
v. Planters' and Merchants' Bank, 3 Ala. Rep., N. S. 713;
6 Porter, 48 ; Minor, 376 ; Neal v. Caldwell, 3 Stew. 134.] '
2. If notice, was necessary, the duty of the Court was to
see it given. [Kirkman v. Harkins, 1 Porter, 22 ; Reid v.
Jackson, 1 Ala. Rep. N. S. 207.]
3. As the- plaintiff was allowed to goto the jury, he was
authorized to infer that the Court had seen proper nptice
given.
4. The sheriff Jiad pleaded no plea denying the character
in which he was sued, and if a notice to him is to be pre-
sumed, from the fact, that the Court permitted the plaintiff to
goto the jury, then the question, whether Gary was sheiiff,
did not arise at the trial. [Jemison v. Harper^ 1 Porter,
431 ; 1 S. & P., 546 ; 4 Ala. Rep. 214 ; Ib. 296J
5. That a sufficient notice was given.
C.' , An issue was formed.
7. If it was necessary to prove Gary's character as sheriff,
this was a question for the Court and not for the jury. [Reid
v. Bank, 3 Ala. Rep. 712; Minor, 370; 1 S. &. P. 471 ; Neai
v. Caldwell, 3 Stew. 134.]
8. The Court officially knew its own sheriff.
5. W. INGE, contra, insisted there was no other question
in the case but that arising out of the bill of exceptions.
1 Every Court it is true mnst know its own officers for the
time being, but that is a different question from knowing that
he was in office at a previousntime, and when a default is
charged. But the inquiry r of sheriff or no sheriff, is necessa-
rily involved in every inquiry of due diligence, because if the
7
50 . ALABAMA.
Hopkins v. Gary, et al.
party is not in office he cannot be 'chargeable. Independent
of this, it frequently becomes important to such an inquiry, to-
ascertain with exactness, when an officer became such.
GOLDTHWAITE, J. We throw aside all the assignments
of error in this case, except the last, with the general remark,
that they present matters that we cannot revise, Whatever
may have been their effect upon the case in the Court below.
We may regret the unnecessary' prolixity of the judgment en-
try, but we are not aware that this fault should be visited on
a party who seems to have had no agency. whatever in mak-
ing it so. It is possible too, that the conversation between
the co.unsel on one side and the Court, may have produced
some effect .on the jury ; but were we to reverse causes for
such reasons, jve fear that oftentimes, the substantial justice of
a case would be defeated without any reason whatever.
. To proceed then to the examination of the only question
presented in such, a manner as to admit of consideration here.
It seems the County Court charged the jury, that the question,
whether Gary was sheriff was involved in the issue to be tried
by them ; and unless this had been proved, that there finding
should be for the defendant. It is difficult to conceive of any
state of facts that could be before the jury, under such an
issue as this, in which this proof would not stand out in bold
relief. If the execution was before them, it was probably
shown to have been in the defendant's hands as .sheriff; if it
was indorsed with the time when received, as required by
law, that was proof ; if it was returned by him the same conclu-
sion would follow. Easy as the proof was, -it nevertheless
was a matter embraced in the issue, and if not proved the de-
fendant was entitled to a verdict. That the question of sher-
iff or no sheriff is embraced in this issue would be evident, if
we suppose a suggestion of this kind ; or what is really the
same thing, an action brought against one who is not, nor
never was sheriff, there is no reason to doubt that such a one
cannot be charged. Again, let us suppose a sheriff .qualified on
some particular day, and the attempt is to charge him for not
making the money 'upon an execution against a person who
has previously parted with his property;^ is it m>t evident
that the question then is, whether the sheriff was author-
JUNE TERM, 1844. 51
De Mony, Garnishee, v. John-ton.
ized to act at the time when action could be effectual ? In-
deed we can conceive of no suit against a sheriff for riegligence,
or breach of duty of any kind, where this question is not ne-
cessarily involved.
We see enough in this transcript td satisfy us that the Court
was not disposed to add an explanation to any charge request-
ed by either party ; nor can "we say, strictly speaking, that
the law imposes any such duty on a Court ; generally to speak,
a Court is passive and waits to be excited to action by either
of the parties; and we are not authorized to infer, either in
this or any other case, that a general charge, strictly correct by
itself, would not have been modified to suit the particular cir-
cumstances if a request had been made* If there was
any fact before the jury which established that Gary was
sheriff, nothing was more easy than to request instructions as
to its effect as proof.
In the condition in which this case is, it is possible that in-
justice has been done, but we are not authorized to infer this
from the mere fact, that a general charge, unexceptionable in
point of law has not been explained or exemplified by the
Court of its own mere motion.
Let the judgment be affirmed.
DE MONY, GARNISHES, v. JOHNSTON. .
1. The debtor of a corporation may be garnisliccd by a creditor of the corporation
under the general law of garnishment; but no proceeding can be had under the
act of 1641, to subject the debt* of stockholders for stock due the company, on
process of garnishment, issuing previous to the passage of that act.
Error to the County Court of Mobile.
THE plaintiff made affidavit that he had recovered judgment
against the Mobile Cotton Press and Building Company, for
the sum of $8,689 66-000, 'and that the corporation had no
property in its possession, within his knowledge, to satisfy the
ALABAMA..
De Mony, Garnishee, v. Johnston.
judgment, and prayed process of garnishment against the plain-
tiff in error, and others. Process of garnishment having issu-
ed, and been executed, a judgment nisi, was taken against the
plaintiff in error, and afterwards set aside, and at the March
term, 1843, a judgment was rendered against him as recited in
the judgment upon his answer for $815.
The record then shows an answer tlated 19th February,
1844, denying that the garnishee is a stockholder in the cor-
poration, and denying any indebtedness. The answer being
controverted on oath, an issue was made up to ascertain whe-
ther the garnishee was indebted to the corporation, upon which
the jury found that he was indebted to the corporation in. the
sum of $1,292, at the time of the. service of the garnish-
ment, and for that sum the Court rendered judgment against
him. He now prosecutes this writ, and assigns for error
1. That the Court had no jurisdiction..
2. That the verdict did not respond to the issue.
3. No verdict could be rendered upon the issue.
4. The judgment should not have -been reversed.
5. The garnishment did not conform to the statute.
CAMPBELL, for plaintiff in error. This proceeding could
only be had tinder the act of 1S41, which was not in exist-
ence when this garnishment was sued out. The act does not
apply to garnishments then existing.
STEWART, contra. This proceeding was not had under the
act of 1S41. By the general attachment law the debtor of a
corporation may be garnisheed upon a judgment against it.
The answer of the garnishee cannot be looked to, as it is no
part of the record; [3 Ala. Rep. 114] and the finding of the
jury under the issue is conclusive of the indebtedness of the
garnishee.
QRMOND, J. There can be no doubt that the debtor of a
corporation might be garnisheed by the law as it stood previ-
ous to the passage of the act of 1841, for the more speedy col-
lection of debts against corporations, after a judgment ob-
tained against it, and the proper affidavit being made* The
design of the act of 1841, was to subject the stockholders of a
corporation to process of garnishment for the amount of stock
subscribed by them and unpaid.
JUNE TERM, 1844. 53
&. Co. v. Brumby, Adm'r.
The affidavit and the writ of garnishment proceed upon the
supposition that the garnishee is' a debtor to the corporation.
The answer denies any indebtedness and insists that the gar-
nishee is not a stockholder, or responsible to the company as
such. The issqe tried, was whetherthe^defendant was indebt-
ed to the corporation, when the garnishment issued. As we
are not informed of trfe facts before the jury, we cannot deter-
mine from the record whether the indebted ness of the garnishee
to the corporation, ascertained by the verdict of the jury, was
founded upon his non-payment of the stock, or upon any other
independent contract with the company. No question there-
fore arises under the act of 1841, by virtue of which it is clear
that this action could not he maintained, as the process was
sued' out before the passage of the act. [Bingham v. Rushing,
Al. Rep. 403.]
It appears by the return to the certiorari that a judgment,
such as is described in the affidavit, was obtained by the de-
/endant in error, against the corporation, the judgment of tho
Court therefore against the garnishee must be affirmed.
LANGDON & CO. v. BRUMBY,
I. The only proper issue upon the trial of the right of property under tho statute,
is an affirmation on the part of the plaintiff that the property in question is sub-
ject to his execution, and a denial of that fact by the defendant ; consequently a
plea which alledges that the same property has been 'levied on at the suit of
another execution creditor, a claim interposed and bond given with surety to
try the right, will not be entertained, even if the proof of such facts would avail
before the jury. ,
3. Although goods are levied on by. a jnnior execution, and delivered tp a third per.
son, who has interposed a claim and given bond with surety as required bylaw,
yet it will be competent to levy on the same by a fieri facial, the lien of which
first commenced and mill continues. But if the older execution is first levied
and proceedings instituted to try a claim, a junior execution cannot be levied on
the same property.
Writ of error to the Circuit Court of Perry.
54 ALABAMA.
Langdon & Co. v. Brumby,
THIS was a proceeding under the statute for the trial of the
right of property. The defendants, in error caused a writ of
fieri facias issued upon a judgment recovered by them, against
the "Trustees of Madison College, 7 ' to be levied by the sher-
iff of Perry, on the apparatus supposed to belong to the de-
fendants in execution; to which the intestate of the defendant
in error interposed a claim, and entered into bond with sure-
ties according to law. The claimant died, pending the suit,
and it was revived in the name of his administrator.
An issue was made up in the usual form, referring it to the
jury to determine whether the property in question was subject
to the plaintiff's execution. In addition to this, the claimant
pleaded, that the identical apparatus had been previously le-
vied on by a fieri facias, at the suit of Beverly Crawford,
against the defendant in execution, that the intestate had reg-
ularly interposed a claim to the same, which was pending in
the Circuit Court of Perry, at the time of, and long after the
levy of the execution, 'and the return of the claim in the pre-
sent case, &c. To this plea the plaintiff demurred, and 'his de-
murrer being overruled, he replied that the fieri facias at the
suit of L. & C. C. Langdon & Co. first issued and acquired a
prior lien, to that of Beverly Crawford, which w-as first levied.
The claimant demurred to this replication.. his demurrer was
likewise sustained, and the Court adjudged that the claim be
quashed ;' that the levy of the execution on the apparatus is
not sufficient to enable the plaintiff in. execution to maintain a
trial of the right of property in relation to the same ; and that
the claimant recover of the plaintiff in execution his costs.
A. GRAHAM, (of Perry,) with whom was E. W. PECK and
L. CLARK, for the plaintiffs in error, contended that the previ-
ous levy and claim of property, did ndt prevent the levy of the
plaintiff^ execution ; especially as being older in o^ate it cre-
ated a superior lien. [2 Porter's Rep. 5; 3 Ib. 138; 1 Ala.
Rep. N. S. 673; 2 Ib. 684; 5 Mass. Rep. 271 ; 1 McMullan's
Rep. 000; 10 Peter's, 404; 13 Pet. Rep. 151.] *
A. F. HOPKINS, for the defendant in error. The matter sta-
ted in the plea is a bar to the proceeding by the plaintiff it
shows that at the time their execution was levied, the appa-
ratus was in the custody of the law, and not subject to seizure
JUNE TERM,- 1S44. 55
Langdon & Co. v. Brumby, Adm'r.
and sale. [4 Bac. Ab. 389 ; 10 Pet. Rep. 400 ; 3 Porter's Rep.
138.] Rfves& Owen T. Willborne, 6 Ala. Rep^ 45, is a case di-
rectly in point. If this view be correct, it is immaterial which
of the parties at whose suit the apparatus was levied on, first
caused their execution to be issued. The question of priority
of lien does not arise.
COLLIER, C. J. In the P. & M. Bank v. Willis & Co, 5
Ala. Rep. 770, it was held, that although the statute directed
the Court to require the parties to make up an issue, under
such rules as it might prescribe for the trial of the question of
right, yet the only proper issue in all such cases was an affir-
mation on the -part of the plaintiff, that the property levied on
was subject to the execution, and a denial of that fact by the
claimant. In the present case, an issue was thus formed, and
the claimant was then allowed to plead, that the property was
mH subject to the plaintiff's execution, for certain reasons,
which are specially stated. The effect of this plea was to pre-
vent a trial upon the general -question of the liability of the ap-
paratus, to the satisfaction % of the plaintiffs execution, and limit
tfie inquiries to a single point, either of law or fact, according
as the plaintiff might elect to treat it. This could not be done
by any proceeding interposed by- the claimant. The statute
entitled the plaintiff to a jur.y trial, if the cause was in Court
in a condition to be .tried, and the case cited, shows how the
issue shall be framed. Here the Court determined that the
levy of the execution did not entitle Jthe plaintiff to a trial of
tlje right of property, and rendered a judgment against him for
costs. * . .
It is no answer to this view to say, the facts- set forth in the
plea, if true, show that the property in question is not liable to
the plaintiff's execution, and that the demurrer is an admission
of .their truth. A demurrer admits .the truth of the facts, if
well pleaded, but presents to the Court the decision of their
legal sufficiency to bar the action, and the question whether
they are interposed in such a manner as to make them availa-
ble. If the determination be favorable to the party demurring
upon either of these points, the plea should be adjudged bad.
We have seen that the plea, irrespective of its extrinsic merits,
could not be entertained.
56 ALABAMA.
Langdon &, Co. v. Brumby, Adm'r.
In Rives & Owen v. Willborne, 6 Ala. Rep. 45, an execu-
tion was levied on a slave, a claim made by a third person,
and a bond given to try the right. The cause was tried by'a
jury upon an issue in the usual form. , On the trial, the claim-
ant proved that some months previous to the levy of the exe-
cution the slave 'in question was seized under three attach-
ments, and replevy bonds given for his forthcoming according
to law. In these bonds the claimant was a surety, and as such
interposed his claim to arrest a sale under the execution. The
Circuit Court charged the jury, that the slave when levied on
was in custody x>f the' law by virtue of the levy of the attach-
ments and proceedings thereon; and consequently was not
subject to the levy of the execution when it was made.
In the case cited it appears, that judgments were rendered
in the suits commenced by attachment two weeks previous to
the levy of the execution, but it was not shown that any pro-
ceedings had been had on the judgments. This Court faid no
stress upon the proceedings had in the attachment, subsequent
to the execution of the replevy bonds, but considering that the
effect of these was to withdraw the slave from a liability to
seizure and sale, affirmed the judgment of the Court below.
If the special plea and replication state the facts of this case
correctly*, it differs from Rives' & Owen v. Willborne, in this
here, the process under which the property was levied on,
created a 'prior lien to that under which the levy had been
made, and bond previously given to try the right; there, the
claim had been interposed to stop a sale and try the right, upon
the ground that the property had been placed in the custody
of the law in virtue of proceedings which operated a para-
mount lien.
By the second section of the act of 183S, " relative to the sat-
isfaction of executions," it is enacted, that " the lien created
by the delivery of an execution from a Court of record to the
sheriff, shall continue to bind tbe property of the defendant as
between different judgment creditors in the Courts of record in
this State, in the following manner, viz : if a term shall elapse
after the return of the first execution, before an alias shall be
be sued put and delivered to the sheriff, the lien created by the
delivery of the first writ 'of execution, shall be cancelled and
of no avail ; but if a terra shall not have elapsed, and the alias.
JUNE TERM, 1844. 57
Langdon & Co. v. Brumby, Adm'r.
shall be delivered to the sheriff before the sale of property, un-
der a junior execution id favor of another creditor, the lien
shall continue, notwithstanding the alias may not have been
delivered until after such junior execution; but if such alias
shall not be delivered, until after the sale under such junior
execution, the lien of the latter shall prevail." [Clay's Dig.
209, 43.] The eighth section of the act of 1807, "concern-
ing executions, &c.," declares that a fi eri facias or other writ
of execution, shall only bind the property of the goods against
which such writ is sued forth, from the time such writ shall
be delivered to the sheriff, &c. [Clay's Dig. 208, 41.]
The view we have taken of the plea as applied to the pre-
sent case, will relieve us from the necessity of giving to the
replication a critical examination ; and without inquiring whe-
ther the plaintiff's execution exerted a lien paramount to'that
of Crawford's, we will consider the question in hand, upon the
hypothesis that such was its effect.
By the common law, the goods of a party against whom a
fieri facias issued, were bound as against the party himself,
and all claiming by assignment from, or by -representation un-
der him, from the test of the writ. The act of 1807, did not
create the right of lien, but rather limited its retrospective ope-
ration, by declaring that it should only become effective from
the- time, the writ is placed in (he sheriff's hands. This lien is
a right so much respected by the law, that where it once at-
taches it will not be divested, though the property of the debt-
or has been seized under a previous execution. And although
the original execution may not have been levied, yet if the
plaintiff continues its efficacy by causing an alias, &c., to be
regularly issued from term to term, his lien overreaches a fieri
facias of a younger date, which has been actually levied, and
it' in the sheriff's, hands will be entitled to the proceeds of the
sale.
In the case before tis, if the plaintiff 's execution first ope-
rated a lien upon the estate of the defendant in execution, then
they would be entitled to the proceeds of the property in ques-
tion, if they caused it to be regularly issued as the act of 1828
requires, should Crawford succeed in condemning it. The
claimant, by the terms of his bond, stipulated for the return of
"8
58 ALABAMA.
Langdon & Co. v. Brumby, Adm'r.
the property, in the event that he was unsuccessful in the as-
sertion of his claim. Notwithstanding these positive terms,
the claimant would not be held to a performance of the condi-
tion of his bond, if the property should be wrested from his
possession by the authority of law, which he could not control.
This principle would apply where the property was seized un-
der an execution, which exerted a superior lien. Of course,
this reasoning is founded upon the supposition, that the goods
in dispute belonged to the debtor : for if they were the claim-
ants, neither of the execution creditors, could insist upon their
appropriation. From this view of the law it results, that al-
though goods are levied on by a junior execution, and deliv-
ered to a claimant, who has interposed a claim and given bond
with surety as required by law, yet such proceeding will not
prevent the levy of a fieri facias, the lien of which commenc-
ed first and still continues.
The same principles will not apply where the senior fieri
facias is first levied, and under it, proceedings are instituted
to try a claim. There it would be no answer -for the claimant
to say, that the goods had been taken from his custody by a
junior execution; and, in such case, if he were unwilling or
unable to interpose a second claim, he would be answerable
upon his bond if they should be condemned, and he could not
not produce them.
In respect to the case of Rives & Owen v. Wilborne, speak-
ing for myself alone, I would remark that I have bestowed
much reflection upon the principle.upon which it rests. I have
frequently thought and conversed about it since the decision of
Hagan v. Lucas, 10 Pet. Rep. 400. I have examined our sta-
tutes in- respect to the trial of the right of property I -have
scanned the arguments that have suggested themselves to me,
or have been urged by others, both -for and against that case ;
and am free to declare that on either side they are potent and
embarrassing. In favor of it, it is said that the opposite con-
clusion would be oppressive and sometimes utterly destructive
of the rights of the honest claimant ; against it, is said, that it
enables the debtor by a combination with a third person to in-
terpose a claim through dishonest motives, only to xvithdraw
the property from the just demands of the creditors. In this
equilibrium of the argument upon consequences,- the safe
JUNE TERM, 1844. 59
Monroe & Tardy v. Brady.
course is to consult the written Jaw,>the nature, design and
character of the proceeding for which it provides, and regu-
lates. If untrammelled by legislation, I have no doubt, but
rules upon this subject might be laid down, embracing a more
enlarged equity, and more generally prombtive of justice. But
keeping in view our statutes, I am persuaded that the case re-
ferred to, is, as consonant to the provisions as any decision we
would be likely to make, if the question were res integ^a.
I have not, therefore, the slightest wish to prescribe any other
limitation upon th'e general terms in which we have hereto-
fore expressed ourselves, than that -already stated in this
opinion.
Without stopping to recapitulate, it is enoughrto add, that the
judgment of the Circuit Court is reversed, and the cause re-
manded.
MONROE & TARDY v, BRADY. >
1. When an appeal is taken, in an admiralty suit, from the judgment of a justice
of the peace, rendered in the city of* Mobile, it is no valid objection m the
Circuit Court, that the justice was elected for a country beat, and therefore,
under the statute disqualified to act in the city.
2. Objections to the sufficiency of a libel in an admiralty suif'should be made in
'the Court below, and are too late when taken in the appellate Court.
3. A justice of the peace has jurisdiction under the acts of 1824 and 1841, in
libel suits, by material men, &c. against a coasting steamboat, when the sum
claimed is not more than fifty dollars.
4. This jurisdiction is not taken away by the circumstance, that the steamboat is
employed in conveying the mail of the United States.
5. When there are several suits, by material men, laborers, Ate. against a steam-
boat, commenced befora a justice of the peace and removed into the Circuit
Court by -appeal, it is not an <?rror which can b revised here, for* that Court to
refuse to consolidate the causes ; although the consolidation would have been
properly ordered by the Circuit Court.
6. The omission to render a judgment of condemnation against a steamboat,
when an appeal is taken by one on behalf of the owners,, is not an error of
which the parties to the* appeal bond will be permitted to complain, as they
cannot be prejudiced by it. The omission in such a caw is clerical, and:
might be corrected on motion if necessary .
60 ALABAMA.
Monroe & Tardy v. Brady.
Writ of error to the Circuit Court of Mobile.
ON the 18th of April, . 1842, the defendant in error ex-
hibited his libel in nature of a proceeding iu admiralty, before
a justice 9f the peace of Mobile, praying that process might
issue according to the statute of the 19th of December, 1 841,
againt the steamboat Caroline, her tackle, apparel and furni-
ture, and that all persons having, or pretending to have any
right, title, or interest to the same, may be summoned, &c.
The ground of cdmplaint is thus pronounced, viz : " That the
said steamboat is now navigating the waters of this State and
within the port of Mobile ; that at the instance of the m'aster
of the said sieamboat and his agents, and during the time the
said steamboat was navigating th waters of this State, the li-
bellant was employed to repair the boiler of said boat at the
rate-of $3 50-100 per-day, and to be found inboard; and
that he so worked seven days receiving only five dollars in
part payment. That the particulars of said steamboat are
more fully shown by the account filed with this libel, amount-
ing in the whole to nineteen dollars and fifty cents; and
which is now justly due to him this libellant."
The justice of the peace issued a warrant of attachment ac-
cording to the prayer of the libel, returnable on the 28th day
of April, 1843 ; on the day on which it issued it was placed in.
the hands of a constable who returned that -he had executed it
by the seizure of the Caroline, and that a bond had been giv-
en. A judgment was rendered by the justice in favor of the
libellant for the sum claimed by him, and condemning the
boat, her apparel, &c., for the satisfaction of the same., Where-
upon Hugh Monroe, with B. Tardy as his surety entered into
bond for the prosecution of an appeal to the Circuit Court.
The cause was tried at the first term after it reached the ap-
pellate Court. Previous to the trial the appellant excepted to
the ruling of the Court. Jt appears from, the bill of excep-
tions that the libellant proved his account as alledged in his
libel ; thereupon the appellant beiqg duly admitted as claimant
of the Caroline, moved the Court by his Proctor to dismiss
the libel, for the following reasons: 1. Because, the jus-
tice of the peace who issued the same, was elected and qual-
ified as such for a beat without the corporate limits of the city
JUNE TERM, 1844. 61,
Monroe & Tardy v. Brady.
of Mobile, and that the issuing of process in this cause as
well as its adjudication, was in the city of Mobile. 2. Be-
cause, the justice could not lawfully take cognizance of the
case, inasmuch as there were five other claims for work and
labor done on the boiler of the Caroline, at the same time the
work was done for which this suit was brought. On all of
which separate libels were issued by the justice at the same
time the aggregate amount of which is $123 37-100. Both
of which reasons were sustained by proof and overruled by
the Court.
The claimants then moved the Court to consolidate the six
cases of which this i. one, it being shown in addition to tfe
above facts, that they were all before the Circuit Court by ap-
peal. This motion was also overruled.
Jt was further shown by the claimants that the Caroline
was, at the time she was libelled, regularly licensed for the
coasting trade, and employed as United States mail boat be-
tween the cities of Mobile and New Orleans, and that the
work done by libellants was to enable her to proceed to sea,
with safety: that the* Caroline did not then, nor never had
navigated the waters of this State, as charged in the bill,
Thereupon the claimants moved the Court to dismiss therbill,
which motion wa$ overruled.
G. N. STEWART, for the plaintiff in error made the folio w-
lowing points ;
1. That the justice of the peace before whom the libel was
exhibited, had no jurisdiction of the cause at the place where
he exercised it. [Aik. Dig. 299, Sec. 2; 300 5, 625, G31-2 ;
Meek Sup. 114.]
2. The libel does not show that there was a lien upon the
boat ; because it does not alledge that the work was done af-
ter the first day of July next preceding the commencement of
the suit. [Clay's Dig. 139, 2, 140.]
3. The statute extends the jurisdiction of justices of the
peace in cases like the present, where the vessel proceeded
against, navigates the internal waters of the State. [Clay's
Dig. 139.] The act of 1S24 applies to ships, &o. navigating
the ocean, &c., and in such cases the lien continues only up to
the time of its sailing next after the lien -attaches. [Cray's
62 ALABAMA.
Monroe & Tardy v. Brady.
Dig. 537-8.] The proof shows that the vessel was engaged
in the coasting trade, (11 Peter's Rep. 175,) and actually car-
rying the United States mail.
4. Six cases should have been embraced by one bill, and
the motion to consolidate should have been granted by the
Circuit Court.
5. The Court rendered judgment without sufficient proof of
the existence of the lien and the liability of the boat, or of the
indebtedness of its owner "or master ; and this, although there
was neither a default or a verdict.
6. The judgment of the Circuit Court was not in rent, as
was that of the justice, but it was for a sum of money.
E. S. DARGAN, for, the defendant.
GOLDTHWAITE, J. 1. The objection to the proceed-
ings, that the justice determined the case in the city of Mobile;
when he was elected for a beat without the corporate limits, is
in effect asserting that the trial was had before a person who
was entirely unauthorized to #ct ; conceding to this objec-
tion its most imposing aspect,' we do not think this question
can be raised in this way. If the justice was unauthorized to
act in the premises he was a trespasser, and as such is liable to
the party for his illegal act; but by the appeal the judicial
character of the justice is admitted, inasmuch as it establishes
a legal connection between him and the appellate Court. 'If
ho is not a justice of the peace it is clear that no appeal will
lie.
2. The objections to the sufficiency of the libel came too
late in an appellate Court. [Witherspoon v. Wallis, 2 Ala.'
Rep. 667.]
3. But it is contended, the proof shown by the bill of ex-
ceptions establishes that, the plaintiff has no right to pursue
this boat, inasmuch as it is a coasting vessel, and in the employ
of the United States by carrying the mail. The act of 1836,
(Clay's Dig. 139, 22,) is much more general in terms than
that of 1824, (Ib. 527, 5, 6, 7,) and gives a lien to be en-
forced by libel, to all persons who shall furnish materials, la-
borers, or slaves, for the use of any steamboat or other wa-
ter craft within the State of Alabama. And the act of
1841, (Ib. 340, 26) expressly gives the same jurisdiction to
JUNE TERM, 1841. 63
Monroe <k Tardy v. Brady.
justices of the peace to the amount of 50 dollars. It is doubt-
less true, that on account of this boat being a coasting vessel,
the admiralty Courts of the United States may have concur-
rent jurisdiction, but we are not certain that this necessarily
ousts the jurisdiction thus expressly given .to our own Courts.
4. Nor is the circumstance, that this boat was employed in
carrying the mail of the United States, one from which its
owners can claim exemption from the ordinary mode of pro-
ceding to which all other persons are subjected.
5. The omission to consolidate the several causes is not an
error which is susceptible of revision here, though doubtless
the consolidation ought to have been made by the Circuit
Court, as it would at least have saved much expense to the
parties.
6. We cannot infer that the proof was insufficient to estab-
lish the lein, or show the liability of the boat. If it was as
is supposed, the party should have shown it by the proper ex-
ceptions.
7. The remaining assignment of error questions the legal
sufficiency of the judgment, because no condemnation was en-
tered against the boat, and, instead, a judgment in rent is
rendered against the parties to the appeal bond.
It certainly is true, that this judgment is irregular, and should
have been for the condemnation of the boat, inasmuch as the
boat was not discharged from the lien, by the claimant, enter-
ing into the ordinary stipulation provided for by the act.
[Clay's Digest, 139, 22.] But it appears that M8nroe took
the appeal in behalf of the owners of the boat and gave bond,
with Tardy, conditioned to prosecute the appeal to effect, and
to abide by and'perform the judgment of the appellate Court
in the premises. This is substantially Jhe form of the condi-
tion required by the statute, (Clay's Digest, 314, 9,) and
would warrant the judgment in ordinary cases against all the
parties to it. Here, from the nature of the proceedings, there
is no principal against whom to render a judgment, and as the
parties by whom the bond is given are at once liable to have
judgment rendered against them, no injury results from the
omission to render a formal judgment of condemnation. It
might be important to the plaintiffs to have execution against
the boat, if the sureties of the bond are unable to pay, but in
64 ALABAMA. _
Brock & Youngue v. Youngue.
no way does the omission affect the persons who now com-
plain of it. The bill of exceptions and other part of the pro-
ceedings sufficiently show that judgment was given for the
plaintiff, and therefore the clerical omission could be corrected
if necessary on motion.
Judgment affirmed.
BROCK & YOUNGUE v. YOUNGtfE.
1. In a controversy between a purchaser at an execution sale, made upon the
original judgment after its affirmance in the Supreme Court on a writ of error,-
superseded by bond and surety, and one claiming by a conveyance from the
defendant in execution, executed pending the cause in the Supreme Court,
the title of the latter will prevail.
Whether the rule would not be different if the contest was between the defend-
ant in execution and a purchaser af such sale. Quere?
fi vt-'.-v > V
Error to the Circuit Court of Talladega.
TRESPASS to try title to a tract of land. The plaintiff claim-
ed as a purchaser at an execution sale, upon a judgment against
David Conner, rendered llth May, 1838. The sale was made
the 3d August, 1840. He produced the sheriff's deed and
proved possession in the defendant to the judgment at the
time of its rendition.
The defendant relied on a conveyance to him of the land,
by David Conner, executed the 8th January, 1839, and pos-
session. It was also proved that the defendant Conner, pros-
ecuted a writ of error to the Supreme Court, on the 29th Sep-
tember, 1838, and gave bond and security to supersede the ex-
ecution, and that the judgment was affirmed against Conner
and his sureties, in the Supreme Court, on the 6th February,
18.39. The facts being agreed, the Court rendered judgment
for the defendant, from which this writ is prosecuted.
RICE, for plaintiff in error, contended that the sheriff's
deed was conclusive, and could not be collaterally impeached.
JUNE TERM, 1S44. 65
Brock &, Youngue v. Youngtie.
That notwithstanding the execution under which the land
was sold, was sued out upon the judgment of the Circuit
Court, after its affirmance in the Supreme Court, that the ex-
eciHion was not void, but voidable onlf- He cited 2 Ala.
Rep. 734; 4 Ib. 9, 19, 321 ; 5 Ib. 58 ;- 4 Wend. 462.
WM. CHILTOW, contra.
ORMOND, J Both parties deduce title from the defend-
ant in execution ; the plaintiff, by a purchase at an execu-
tion sale, the defendant by a conveyance. It is therefore only
necessary to inquire whether the defendant in execution had
the right to convey the title, if he had the title of the defend-
ants in error, being prior in point of time, must prevail.
The judgment under which the plaintiff deduces his title,
was carried to this Court by writ of error, and bond and secu-
rity given to supersede the execution. The effect of this was
to discharge the lien of the judgment as decreed by this Court
in Campbell v. Spence, 4th Ala. Rep. 543. After the lien
created by the judgment was thus discharged, the defendants
purchased from Conner, the defendant to the judgment, and it
is therefore obvious that his title is superior to that of the
plaintiff's, derived from a sale by virtue of the judgment after
its affirmance in this Court. The lien of the judgments being
discharged by the superscdeas, is, as to all rights acquired
after such discharge, as if it never had existed. The subse-
quent affirmance in this Court did not restore the former lien,
but was the foundation of a new lien from the date of the
affirmed judgment.
Whether the argument of the plaintiff's counsel might not
apply, if the controversy was between the defendant in ex-
ecution and a purchaser under the judgment, is a question wd
need not decide.
Let the judgment be affirmed.
9
66 ALABAMA.
Logan v. Hodges' Adm'r.
LOGAN v. HODGES' ADM'R.
J. Where the defendant offers himself as a witness to support the plea of usury
under the act of 1819, and the plaintiff states on oath that the note declared
on, is not tainted with usury, sets out what was its true cousideration, and thus
negatives what the defendant had deposed, the testimony of both should be
rejected in toto ; consequently it- is error to instruct the jury, that so far as the
defendant was uncontradicted his evidence was properly before them, and
that they should consider that part of his evidence that was contradicted, if
corroborated by other pjoof.
2. A party to a suit may be the bearer of a deposition taken at his own instance,
from the commissioner to the clerk of the Court where the cause is pending,
and make the usual declaration that he delivered it in the same condition in
which he had received it.
Writ of error to the County Court of Sumter.
THIS was a suit commenced originally before a justice of
the peace against the intestate of the defendant in error; af-
ter judgment in favor of the plaintiff, the case was removed
by certiorari to the County Court. The plaintiff then filed his
statement upon a promissory note for the payment to him of
forty-five dollars by the defendant ; and the cause was tried on
the plea of non assumpsit, payment, usury and want of con-
sideration.
On the trial the plaintiff excepted to the ruling of the Court.
It appears that the intestate proposed to prove by his own
testimony, that the note in question was founded on a usuri-
ous consideration ; whereupon the plaintiff offered to deny
upon oath, the truth of what it was stated the intestate would
testify. The Court, however, permitted the intestate to give
testimony in the hearing of the jury, to circumstances show-
ing that the note formed part of a usurious contract between
him and the plaintiff, and was itself wholly tainted with usury.
The plaintiff denied upon oath that any part of the note
sued on was usurious, and stated he had paid a debt for the
defendant to a third person in order to disincumber the title to
a tract of land, which he had sold to the plaintiff, and that the
note was given in consideration thereof. Thereupon the
plaintiff moved the Court to reject the testimony of the intes-
JUNE TERM, 1844. 67
Logan v. Hodges' Adm'r.
(ate, but his motion was rejected, fend the Court determined
that the testimony was admissible as far as it was not contra-
dicted.
The Court instructed the jury that the evidence of Hodges,
so far as it was u neon trad icted, was properly before them, but
did not particularize what portion of the evidence they should
disregard.
The Court permitted the intestate to read to the jury a dep-
osition material to his defence, which he himself brought into
Court, upon an affidavit being made by him, that he had re-
ceived it of the commissioner and delivered it to the clerk in
the same good order in which he received it : and this was
permitted in despite of an objection by the plaintiff.
To an inquiry by the jury, the Court answered, that they
were to take all the intestate's testimony, which was material,
and which had nqt been ruled out by the Court, and which
was uncontradicted by the plaintiff; also the part that was
contradicted, if corroborated by other evidence. These sever-
al decisions are all reserved by the bill of exceptions. The
jury returned a verdict for the intestate, and thereupon judg-
ment was rendered.
S. B. BOYD, for the plaintiff in error. The denial by the
plaintiff of what the defendant testified, or proposed to state,
should have induced the exclusion of the latter as a witness.
[Clay's Digest 590, 5.] The defendant could only have giv-
en evidence to the fact of the usury, if not disputed, but here
he was allowed to become a witness generally in his own fa-
vor; and this although the plaintiff, denied under oath, that
there was any usury in the transaction which induced the
making of the note in suit. [Richards et al. v. Griffin, 5 Ala.
Rep. 195.]
The County Court also erred in admitting the deposition in
evidence under the circumstances in which it was received
from the commissioners, and deposited with the clerk of the
Court.
HAIR & HOIT, for the defendant in error.
COLLIER, C. J. The fifth section of the act of 1819, to
regulate the rate of interest," enacts, that " when any suit or
action may be brought in any Court of record in this State,
68 . ALABAMA.
Logan v. Hodges' Adni'r.
touching or concerning any usurious bond, specialty, promise
or agreement, the borrower or party to such usurious bond,
specialty, contract, promise or agreement, from whom such
higher rale of interest is or shall be taken, shall be a good and
sufficient witness to give evidence of such offence : Provided,
that any person against whom such evidence is offered to be
given, will deny upon oath to be administered in open Court,
the truth of what such witness offers to swear against him,
then such evidence shall not be admitted, &c.* J [Clay's Dig.
590.J Without stopping to inquire whether the facts testified
by the defendant should not have been, first stated and
submitted to the plaintiff, that he might determine whether
he could deny them in the manner prescribed by the statute,
we are satisfied that the recital of his testimony set out in the
bill of exceptions, is a full denial of the defendants statement.
He declares not only that the note was not tainted with usury,
but he sets out what he affirms to be its consideration, and
thus completely negatives what the defendant had deposed.
In this posture of the case, the Court should have rejected
in toto what the defendant testified. But instead of thus rul-
ing, it was adjudged that so far as he was uncontradicted his
testimony was properly before the jury ; and even further,
that they should take the part of his evidence that was contra-?
dieted, if corroborated by other proof.
It was no objection to the admission of the deposition that
the defendant was the bearer of it from the commissioner to
the clerk of the Court, and himself deposed, that he had de-
livered it in the same condition in which he received it. Such a
course of procedure is not inhibited by the rule which de-
clares, that one shall not be a witness in his own cause ; for
his statement was of a fact merely preliminary to the admis-r
sion of the evidence, and intended to prevent spurious testi-
mony from being imposed upon the Courts. If the plaintiff
had reason for believing the deposition -had been interpolated
or otherwise altered, he might, upon application to the County
Court, have obtained a continuance in order to take it dc
riovo, or to procure the necessary proof to have it suppressed.
But the practice which permits parties to bring their own
depositions into Court, is too strongly commended by conve-
JUNE TERM, 1844. 69
The State v. Newman & Levie.
nience, and too long sanctioned, both by jndicial acquiescence
and even express decision, to be now departed from.
Without adding any thing more, it has been already shown
that the County Court erred in the admission of -the defend-
ant's testimony T and in the instructions to the jury. The
judgment is consequently reversed and the cause remanded.
THE STATE v. NEWMAN &. LEVIE.
1. Under an indictment for Felling (o a slave, without the consent of his master,
one yard of cotton cloth, it is nut necessary that the evidence should prove that
the cloth sold was of cotton.
2. la every criminal case, the defendant's guilt must be made out by evidence of
a conclusive nature and tendency, and must exclude any reasonable supposi-
tion of innocence.
On points reserved by the Circuit Court of Lowndes as nov-
el and difficult.
THE defendants were indicted for selling to a slave one yard
of cotton cloth, without (he consent of his master, &c. At the
trial there was proof tending to show that the defendants de-
livered to the slave a whole piece of cloth. They asked the
Court to charge the jury, unless they were convinced from the
evidence that the cloth sold was " cotton cloth," as charged
in the indictment, they could not find the defendants guilty.
This was' refused, and the jury was instructed that it did not
matter what species of cloth was sold, if the jury were satis-
fied that any cloth was sold by the defendants to the slave.
The defendants further asked the Court to charge the jury, (the
evidence being circumstantial,) that it must point to the de-
fendants guilt so strongly as to exclude every other reasona-
ble hypothesis. This the Court refused, and charged the jury
that this was a rule of law applicable to capital cases, but did
not apply to misdemeanors to the extent stated. IJoth ques-
tions, however, were reserved for the consideration of this
Court, as novel and difficult.
70 ALABAMA.
The State v. Newman & Lcvie.
G. W. GAYLE, for the defendants.
ATTORNEY GENERAL, contra.
GOLDTHWAITE, J. 1. We do not think that the cases
cited have any direct application to that before us. In prose-
cutions for larceny, the identical thing alledged'to be stolen
constitutes the gist of the offence, and therefore no latitude can
be indulged in the description. Another reason in such cases
is, that the indictment must be sufficiently certain in descrip-
tion to convict the defendant if he is subsequently prosecuted
for the same offence. [State v. Murphy, at this term.] Un-
der the statute upon which the prosecution is founded the of-
fence is the trading with the slave for any commodity without
the consent of the master, &c. The consequence is, that it is
less material to inquire what was sold, than it is, that it was a
commodity, within the terms of the statute. It would have
been sufficient to alledge generally a yard of cloth, and its fa-
bric or color is not essential. We, therefore, come to the con-
clusion there is error in refusing the charge asked for in this
connection.
2. The other charge ought to have been given. It is essen-
tial that the evidence in every criminal case should be of a
conclusive nature and tendency ; this can never be where it
does not exclude all reasonable doubts of the guilt of the per-
son upon trial. If then the evidence is of such a nature as not
to exclude a reasonable supposition of innocence, it cannot
with propriety be said to be sufficient to convict. The true
rule on this subject is stated in The Stale v. Marler, 2 Ala.
Rep. 43 ; and is, that the jury must be satisfied beyond a rea-
sonable doubt of the guilt of the prisoner; this can never be
the case so long as the evidence does not exclude any reason-
able supposition of innocence. [The State v. Murphy, at this
term.]
For the error in this charge the 'judgment must be reversed,
and the cause remanded for another trial.
JUNfi^TERM, 1S44. 71
Beck v. Simmons & Kornegay.
BECK v. SIMMONS & KORNEGAY.
1. A Court of Chancery may refuse to rescifld a contract where it would not specifi-
cally enforce it at the suit of (he other party.
2. Where one proceeds in a contract hi the exchange of lands, so far as to obtain
the possession with knowledge of a defect in the title, he cannot afterwards ob-
ject to the title as a reason for not completing the contract, unless there is unrea-
sonable delay in procuring the title, or in curing the defect. If he knows that
the defect can only be obviated by a judicial proceeding, the time stipulated for
the completion of the contract will not be considered an essential ingredient.
In such cases the question is not, whether the party is able to make title on
the day stipulated, but whether there has been unreasonable delay in obtaining
title.
3. If one purchases lands to which he knows the title is defective, accepts a deed
for it. and goes into possession, he cannot afterwards rescind the contract for the
defect in the title.
4. It is competent for the vendor to prove knowledge in the vendee of a defect in
the title when the contract was made, as an excuse for not making the title at the
time stipulated. Such proof does not vary the contract of the parties, though it
may excuse its literal performance.
5. A sale of land by three Commissioners, made by order of the Orphans' Court, i
valid under the act of 1822.
C. Where a mistake is made in the description of lands in a deed, which the party
offers to rectify, there is no ground for the interposition of Chancery to correct the
mistake.
Error to the Chancery Court of Sumter.
THE bill was filed by the defendant in error to rescind a con-
tract entered into for the exchange of lands. The material al-
legations of the bill are, that on the 29th day of January, 1941,
the parties entered into a written agreement for the exchange
of lands. That the complainants agreed to convey certain
lands, lying in Sumter county, in exchange for two tracts, ly-
ing in Clarke county. That the complainants executed their
part of the contract by conveying to Beck by deed the lands
in Sumter, and paid the sum of seven hundred dollars. That
Beck executed his bond for title to the two tracts lying in
Clarke county, with condition to make, within six months, a
good and lawful title to complainants, to the lands in Clarke.
The bill further alledges, that Beck, under and by color of
the agreement, did by deed, dated 16th February, 1841, con-
vey to Simmons, one of the tracts called the Hamilton tract,
72 ALABAMA.
Beck v. Simmons & Kornegay.
and by deed of the same date, conveyed to Simmons and Kor-
negay, jointly, the other tract, called the Kirklaud tract. That
neither of the deeds so made, specified the land district, county
or State, in which the lands pretended to be conveyed lie, so
that the complainants are unable from the deqds to locate the
lands. The bill further allecTges, that since the making of the
said conveyances by Beck, they have ascertained that he has
neither right, title or interest, either in law or equity, to the
tract called the Kirkland tract, but that the same belongs to
certain minor heirs of whom said Beck is guardian. That as
soon as they learned that Beck was unable to make a good ti-
tle to the Kirkland tract, and as soon after the expiration of six
months from the date of said bond, as they could conveniently^
they (residing in Clarke county, and Beck in the State of
Mississippi,) offered to relinquish possession and to reconvey
all the lands pretended to be conveyed by him, if he would
reconvey to them the lands he had received from them in ex-
change; which he refused. The complainants also alledge, that
it was material to them to have received a good title, at or be-
fore the expiration of the six months.
The answer admits the agreement for the exchange, as sta-
ted in the bill, and avers that in pursuance thereof, each party
went into possession of the lands received in exchange, and
that the complainants knew at the time the agreement was
entered into, that the title to the Kirkland tract was in certain
minor heirs of whom he was the guardian, and that the con-
tract was made with the express understanding that he was to
procure the title so as to be able to convey it by deed. That
it was arranged between the parties, that one Hatch, as the
mutual agent, should prepare the respective deeds to be exe-
cuted by each party. That Hatch prepared the deeds, and
he executed them in performance of the condition of the bond,
and that Hatch as such agent received the deeds for and as
satisfying the condition of the bond. And that he repeatedly
offered the "complainants before the filing of the bill to execute
any other deeds they would procure, with more full and cer-
tain description.
The answer farther states, that after the exchange was made,
such proceedings were had in the Orphans' Court of the Coun-
ty of Clarke, where the lands lie, that a sale of the lands com-
JUNE TERM, 1844. 73
Beck v. Simmons & Kornegay.
prising the Kirkland tract, was decreed in conformity with the
provisions of law, and a sale thereof duly made on the llth
June, 1842, at which sale, the defendant acting for the interest
and benefit of his wards became the purchaser, which sale
was confirmed by the Court on the 13th June, 1842, and a title
decreed to be made to him as the purchaser. That the com-
missioners did convey the laud to him on the same day, and
that he is now ready and willing to make the complainants a
sufficient deed.
The answer admits the offer to rescind the contract, and his
refusal, but insists that the complainants have had uninterrupt-
ed and quiet possession of the land from the time they were
let into the possession. Several witnesses were examined, but
it is not necessary to state it here, as it is adverted to in the
opinion of the Court.
The Chancellor at the hearing, considering that testimo-
ny could not be adduced to vary the written contract of the
parties, by showing that the complainants were aware of the
condition of the title when the exchange was made, and also
considering that the defendant had been guilty of unreasonable
delay in procuring the title, decreed a rescission of the contract.
This is now assigned for error in this Court.
BLISS &. BALDWIN, for the plaintiff in error, made the fdllow-
ing points :
The rescission of a contract is in the sound discretion of the
Court under all the circumstances of the case. [2 Story's Eq.
4 ; 3 Cower), 446 ; 2 Stewart, 370.]
Time is not of the essence of the contract. [2 Story's Eq.
85, 88; Litt. S. C. 115; 3 Peters, 210; 5 Howard, 686 ; 5
Cranch, 262 ; 6 Wheaton, 528.]
It is sufficient if the title is acquired after the day and befpre
the decree. [Sug. on Ven. 365; 1 Peters, 465; 5th Howard,
680 ; Sug. on Ven. 370.]
When defects are known, the purchaser cannot have relief,
especially if in possession. And when the purchaser enters
into or proceeds in a treaty after he is acquainted with the de-
fects in the title, and knows that the vendor's ability to make a
good title depends on the defect being cured, he will be held to
his bargain, although the time has expired and considerable
10
74 ALABAMA.
Beck v. Simmons & Kornegay.
further tinte may be required to make a good title. [Sug. on
Ven. 370 ; 5th Howard, 279 ; 3 Marsh, 335 ; 3 J. J. M. 583 ;
Ib. 701; 1 Johns. C. R. 218; 2 Ib. 519 ; 7th Monroe, 202; 3
A. K. M, 28S ; 13 S. & R. 386 ; 5 Litt. S. C. 229 ; 2 Wheaton,
13 ; 5 S. & R. 204 ; 1 Fon. Eq. 288, in notes.]
Equity will not relieve after acceptance of, and where there
is no fraud, for defects in the title known when the deed was
received, especially if the purchaser is let into possession under
the deed. [3 A. K. M. 334; Ib. 288; 5 Conn. 538; 5 Mon-
roe, 439 ; 6 Ib. 230 ; 2 Edwards, 37; 3 J. J. M. 583, 701 ; 5
Howard, 284, 543.]
The complainant was bound to prepare a deed if he wished
a more perfect one. [5 S. & P. 450.]
A Court of Chancery requires stronger reasons for setting
aside an agreement, or delivering it up to be cancelled, than
would be required to refuse a specific performance. [3 Cow-
en, 445, 530; llth Peters, 248.]
That the proceedings of the Orphans' Court were regular.
[See Clay's Dig. 224, 16, 17, 19.]
SALLE, contra. ' If t,he complainants have not waived time
as essential, this Court cannot do it. Neither a Court of equity
or law can vary mens' wills or agreements. [Fonb. 290 ; 3
Black. 435 ; Days, 272 ; Con. U. S. art. 1, 10 ; 7th Vesey,
264; 6 Wheaton, 534; 1 Johns. Ch. 370; 4 Vesey, 6S6; 4
Peters, 329; 4 Cond. Eng. Ch. 432 ; 5 Cranch, 276 ; 7th Vesey,
202; 14th Peters, 173; 11 Johns. 525,584; 13 Vesey, 224;
1 Madd. C. R. 415 ; 5 Cranch, 278 ; 9 Ib. 489.]
If Beck has not a good title to both tracts of land; his con-
tract being entire, he would not be entitled to a specific per-
formance. His title to the Kirkland tract was not good, for
the CoUrt appointed only three commissioners, where it should
have appointed five. [9th John. 455 ; 5 Cranch, 262 ; 2 Whea-
ton, 299; Coke Litt. 215; b. Pothier on Ob. 110; 1 Madd.
430 ; 4 Cranch, 93; 2 Coke Litt. 434; 2 Johns, 109 ; 2 Cranch,
166; 6th Porter, 232; 9 Cranch, 65; 6 Wheaton, 579 ; Ib.
125.]
If he has a good title he cannot avail himself of it by his
answer. The proceedings before the Orphans' Court is- new
matter, not responsive to any allegation or statement in the
JUNE TERM, 1844. 75
Beck T. Simmons & Kornegay.
bill, and is an attempt to make an answer subserve the pur-
poses of a cross bill. [5th Pet. 276 ; 1 V. & B. 524, 377 ; t>th
Con. Eng. C. 40 ; llth Peters, 249 ; 7 Ib. 274 ; 10 Ib. 209 j 3
Swanston, 60; 3 Stewart, 237.]
The testimony adduced by the defendant is of loose, vague
conversations before the contract was entered into, and were
extinguished by it, and therefore inadmissible, [l Johns. C.
273.] The testimony of Hatch is utterly incredible.
The merits of the case are reduced to a narrow compass,
and may be thus stated : 1. Can Beck consistently with the
principles of common honesty hold the lands conveyed by the
complainants to him, they not having received the stipulated
consideration.
2. Have the complainants a plain, adequate and complete
remedy at law? as it is clear they have not, this Court must
interfere, or there will be failure of justice.
These propositions the counsel argued at great length, and
in support of his views cited the following authorities : 2
Johns. Rep. 613 ; 9th Cranch, 489; 3 Stewart, 237; 4 Cranch,
136; 6th Wheaton, 534 ; J3th Vesey, 424; 16 Ib. 271; 3 Mon-
roe, 329; 14 Peters, 32; Coop. Ch. C. 307; 1 Peters, 455; 2
Black. Com. 323; 9th Cowen, 154; 4th Mass. 349; Con. Eng.
C.357; 10th Vesey, 292, 306 ; 7 Ib. 21 ; J3lb. 581; 6th Pe-
ters, 98 ; 1 Johns. C. R. 517.
ORMOND, J. The object of the bill is to rescind a con-
tract entered into for the exchange of lands. The case has
been argued by the counsnt for the defendants in error, by
whom the bill was filed, as if it was a proposition by the
plaintiff in error to enforce the contract specifically, and he
has endeavored to show, that under the circumstances of
this case, the Court would not decree a specific performance.
It is however well settled, that a Court of Chancery may re-
fuse to rescind a contract, where it would not specifically en-
force it. [Jackson v. Ashton, 11 Peters, 248; Mortlock v.
Butlex, 15th Vesey, 292; Seymour v. Delancey, 3 Cowen,
530.] It will not avail the defendants in error, if they could
show that from the delay in this case the plaintiff would not
be entitled to a performance of the contract. He is not seek-
ing any thing at the hands of the Court, and the only ques-
76 ALABAMA.
Beck v. Simmons & Kornegay.
tion therefore is, whether he has been guilty of such a viola-
tion of a contract, that the other party has the right to re-
scind it.
The parties agreed in writing, on the 29th January, 1841,
upon an exchange of lands, the plaintiff in error agreeing to
exchange two tracts of land lying in Clarke county for one
belonging to the defendant in. Sumter County. The plaintiff
in error executed his bond promising to make title to the de-
fendants, to the lands in Clarke county, in six months there-
after. And on the 16th February, 1841, the parties mutually
executed to each other title to the lands so exchanged. Both
parties went into an immediate possession of the lands ex-
changed. It appears very clear from the proof, that it was
well known at the time of the exchange, that the title to the
Kirkland tract was not in the plaintiff in error, but that the
land belonged to certain minors of whom the plaintiff was
guardian, and that it was expected and understood that he
was to cause the land to be sold and procure his title.
It would be contrary to equity and good conscience, to per-
mit one who proceeds so far in a purchase as to obtain pos-
session, with knowledge of a defect in the title, to object af-
terwards, the want of title as a reason for not complying with
his contract. If he knows that the defect can only be obvi-
ated by a judicial proceeding, it is impossible to suppose that
the time stipulated for the completion of the contract, was
considered by him an essential ingredient of the contract, as it
could not be known what length of time it might take to obtain
the title. The question therefore in such cases is not, whether
the party was able to make the title on the day stipulated, but
whether there was unreasonable delay in obtaining it. [Set-
on v. Slade, 7th Vesey, 265; Colton v. Wilson, 3 P. Wms.
190.]
Thus far the case has been considered as if it were an ex-
ecutory contract, but it appears to have been executed by the
acceptance of a deed before the expiration of the time for mak-
ing a complete title. The deed was prepared by one Hatch, act-
ing as the agents of the defendants in error, and was received
by him when executed by the plaintiff. It could not be tolera-
ted, that one should purchase lands to which he knew the title
was defective, accept a deed and go into the possession and
JUNE TEKM, 1844. 77
Beck v. Simmons & Kornegay.
enjoyment of it, and then rescind the contract for the defect
of the title. It was urged in argument that the circumstan-
ces surrounding the transaction, were conclusive to show, that
Hatch exceeded his authority in taking the deed, and that his
principals were not bound by his act. His deposition has
been taken, and he states that he was the agent of the defen-
dants in error, for the purpose of procuring the deed to be
made, and we can discover nothing unreasonable or improb-
ablein his statement. Nor is it alledged in the bill, that the agent
exceeded his authority, but it is admitted that the deed was
executed on the day it bears date that the lands called the
Kirkland tract, were so imperfectly described in the deed, that
they were unable to locate them, and that since the execution
of the deeds they had ascertained that the plaintiffs had nei-
ther right or title to the Kirkland tract," and that as soon
afterwards as they conveniently could do so, they offered to
return the lands they had received and to rescind the contract,
which the plaintiff had refused.
The case made by the bill, is not that the agent received
the deed without authority, but that the discovery has since
been made, that the plaintiff had no title to the land. The an-
swer positively alledges,' that the complainants had full know-
ledge of the true state of^the title when the exchange was
made, and the proof shows such to be the fact. This testi-
mony was rejected by the Chancellor, because in his opinion
it varied the written contract of the parties. If the case now
stood upon the written contract of the parties by which the
plaintiff was to make title iu, six months, it is not perceived
that the reception of such testimony would violate the rule in
question. It does not in the slightest degree add to or dimin-
ish the terms of the contract, but merely establishes the exis-
tence of a separate'and distinct fact. Whatever influence it
might, when established, exert over the contract, it no more al-
ters or impairs it, than would the proof of infancy or any other
distinct fact, which might prevent its enforcement or affect its
validity. Certainly, however, when the attempt is made to
rescind the contract for the defect of title, it is competent for
the other party to show, that at and before its execution, the
defect was well known. This is in truth the issue tendered
by the complainants in their bill, not indeed directly, as it is
78 ALABAMA.
Beck v. Simmons & Kornegay.
not expressly alledged that they were ignorant of the true
state of the title when the exchange was made, but indirectly,
by the allegation " that as soon as they learned that the said
Beck was unable to make a good and lawful title to the Kirk-
land tract, they offered to redeliver possession, &c., to the said
Beck."
, If it be conceded that it was competent for the complainants,
after the contract was executed, with knowledge on their
part, that the title was in a third person, to rescind it, unless the
outstanding title was extinguished, it certainly would not be
permitted without giving the other party a reasonable time to
procure the title. The plaintiff might well have supposed,
that as the complainants had his deed with warranty, and
as they were in possession of the land, there was no urgent
necessity for taking immediate steps to get in. the outstanding
title. As soon as he was apprised of their dissatisfaction with
the title as it thus stood, he appears to have acted with promp-
titude. It is not expressly alledged in the bill, or amended
bill, when the demand of title and offer to rescind were made,
but it appears from the answer to have been about the 4th. of
January, 1842. The title was finally obtained by the plaintiff
on the 13th June, 1842, under a sale made by virtue of a decree
of the Orphans' Court of Clarke county, and tendered to the
complainants. We do not think this an unreasonable delay.
As from the nature of the case it was necessary to apply to a
Court of justice, the delays consequent upon such an applica-
tion must be allowed.
The only objection here urged to the validity of title thus
obtained, is, that the Orphans' Court appointed but three in-
stead of five commissioners to make sale of the land. The
act of 1820, (Clay's Digest, 196, 22,) did require the appoint-
ment of five commissioners to make sale of real estate, when
such sale was necessary for the purpose of more equal distribu-
tion among the heirs, which was the cause assigned for the sale
in this instance ; but the act of 1822, (Clay's Dig. 225, 19.) au-
thorizing the Orphans'Court to order a sale of lands for this pur-
pose, is silent as to the number of commissioners necessary to
* . ^
conduct the sale. It is then left to the discretion of the Court
as to the number of the commissioners, and being subsequent
in point of time, is, as to this particular a repeal of the former
JUNE TERM, 1844. 79
The Governor, use, &.c. v. Robbins, et al.
law. There is not therefore, any weight in this objection, and
no other has been brought to our notice.
The alledged omission in the deed is. that it does not state
the County, State, or land district in which the lands are sit-
uated, so that from the deed it is impossible to locate the
lands. There is no allegation that the omission was fraudu-
lent, and it appears from the answer and proof, that the deed
was prepared by the agent of the complainants. The correc-
tion of mistakes is doubtless an appropriate head of Chancery
jurisdiction, but to justify the application to that Court for this
purpose, it should appear that the opposite party on applica-
tion, refuses to make the correction or supply the omission, as
was held by this Court in Long & Long v. Brown, 4th Ala.
Rep. 622, and in subsequent cases. There must exist a ne-
cessity for the interposition of Chancery. Here, it appears,
that the plaintiff repeatedly offered to supply the omission :
there is therefore, no reason shown for the interposition of a
Court of Chancery.
Our conclusion is, that the decree of the Chancellor must be
reversed, and a decree be here rendered dismissing the bill.
THE GOVERNOR, USE &c. v. ROBBINS, ET AL.
1. Where a sheriff collects money on a fieri facia*, and renews his bond be-
fore it was demanded of him, or he converts the same, the* sureties in the latter
bond may be charged with his default in falling to pay over the money, if the
evidence shows its conversion after their bund was received, and before they
were discharged from the suretyship.
Writ of error to the Circuit Court of Coosa.
Tins was an action of debt at the suit of the plaintiff in
error against the defendants, as the sureties of James C. M.
Logan, deceased, in his official bond as sheriff of Coosa.
Among other breaches, it is alledged in the declaration, that
the principal in the bond while sheriff, collected money on
80 ALABAMA.
The Governor, use, &c. v. Robbins, et al.
fieri facias, at the suit of the real plaintiff, which he had
failed and refused to pay over. The cause was tried by a
jury on issue joined, but in what form, the record does not in-
form us. From a bill of exceptions sealed at the instance of
the plaintiff, it appears to have been shown, that the sheriff
received the money on the fieri facias, but previous to the
time when the defendants executed the bond now in suit.
The demand was not however made upon the sheriff until
after the defendant's suretyship commenced.
The Court charged the jury, that if they believed from the
evidence, the money received by the sheriff on the fieri facias
and demanded by the plaintiff, was received before the ex-
ecution of the bond declared on, then the plaintiff could not
recover. A verdict was returned for .the defendants and a
judgment rendered accordingly.
MORRIS, for the plaintiff in error, insisted that the bond (as
indicated upon its face) was the renewal of one of a previous
date. That when a sheriff collected money in virtue of his
office, he is presumed to hold it in his hands ready to pay
over, until a refusal or conversion is proved. Here the intend-
ment from the evidence, is, that no breach had been commit-
ted, until after the defendant's suretyship commenced ; and
they are chargeable. [Townsend & Gordon v Everett et al.
4 Ala. Rep. 607.] The mere collection of money does not
subject a sheriff to a suit for its recovery ; a conversion in fact,
or a demand and refusal, are essential to invest the party en-
titled, with the right of action.
N. HARRIS and WHITE, for the defendant.
COLLIER, (5. J. All persons elected or appointed to the
office of sheriff are required to execute bond with good and
sufficient sureties for the performance of their official duties ;
and these bonds shall be renewed annually if required by the
Judge of the County Court. [Clay's Dig. 535, 4.] By the
act of 1822, it is made the duty of the Judge of the County
Court, upon application by either of the sureties of any sher-
iff to require a new bond, with a similar condition to that first
given. Upon the execution of such new bond, it is declared,
that the surety or sureties making application shall be discharg-
JUNE TERM, 1844. 81
The Governor, use, &c. v. Robbing, et al.
ed from the obligation of the bond previously entered into
by them : Provided, that such sureties shall not be discharged
from any liability previously incurred. [Clay's Dig. 534,
13, 14.] It is sufficiently shown that the bond on which the
action in the present case is brought, was but the renewal of
one of an older date, and the question is, which set of the
sureties are liable for the default proved. Is it those who
were bound for the official acts of the sheriff at the time the
money was collected by him, or those who were his sureties
when the liability was fixed by a demand and failure to
pay.
The act of 1S36 gives the remedy by notice and motion
against a sheriff and his sureties, whenever the former " shall
fail or refuse to pay over any money received by him upon
any execution, on the application of the plaintiff or plaintiffs,
his, her, or their attorney or agent." [Clay's Dig. 218, 83.]
When the remedy provided for ,by this statute is pursued, it
has been repeatedly held, that a demand must precede its in-
stitution. So it has been considered -that when an action on
the bond, as in this case, has been adopted, the failure to pay,
after application duly made to the sheriff, is equally essential
to the maintenance of the suit. [McBroom v. Governor, 6
Porter's Rep. 32.] This being the case, it js clear that it is
not the mere collection of money upon an execution that
gives a right of action, but it is necessary that it should be de-
manded by the plaintitf, or some one authorized to receive it.
True, if it coulcl be shown that the sheriff had appropriated it
to his own use, or otherwise converted it, this would be suffi-
cient to dispense with a demand, by proving it to be unneces-
sary. In fact it would be equivalent to, and a substitute
for it.
The undertaking of the sureties, as expressed in the condi-
tion of the bond, is sufficiently broad, to show that the jury
would have been warranted by the proof in finding a verdict
for the defendants. It provides, that if their principal "shall
well and truly perform all and singular, the duties of sheriff,
as enjoined on him by the laws of this State, and pay over all
moneys collected by him by virtue of his office, as required of
him by law, then this obligation to be void, &c."
It has been held, that if an execution remain in a sheriff's
11
82 ALABAMA.
The Governor, use, &c. v. Robbins, et al.
hands when his term of office expires, on his reappointment
it is his duty to execute it ; and his neglect is a breach of his
new bond. [Slate v. Roberts, 7 Hals. Rep. -114.] So his
sureties are liable for money received by him on execution
after the bond is given, though the execution was received by
him before that time. [People v. King, 15, Wend. Rep. 023.]
And it has been decided that they who were the sureties of the
sheriff at the time the liability accrued for money collected,
are properly answerable for his default. [People v. Ten
Eyck. 13 Wend. Rep. 448; Fitts v. Hawkins, 2 Hawk.
Rep. 394.] In South Carolina it has been determined that the
additional sureties of a sheriff are liable as well for money
collected by him before they executed the bond as afterwards ;
unless, perhaps, the sheriff and his original sureties were sued
to insolvency before the additional bond was executed.
[Treasurers v. Taylor, 2 Bailey Rep. 524.] And in Ohio it
has been held, that when a sheriff gives an additional bond,
both sets of sureties are liable for his misconduct. [State v.
Crook, 7 Ham. Rep. (2d part,) 221. See also The People v.
Brush, 6 Wend. Rep. 454 ; Bartlett v. The Governojr, 2 Bibb's
Rep. 586.]
"'isi*
In Townsend and Gordon v. Everett, use, &c.,WAla. Rep.
607, which was an action by the Judge of the County Court,
for the use of the County Treasurer against the predecessor of
the latter and his surety in the official bond. The, <|uestion
was, whether the surety of the debt was liable for moneys re-
ceived by his principal under a previous appointment and
while other persons were his sureties. The Court were of
opinion that it was not tho receipt of money by the Treasurer
which rendered his surety liable, but the failure to disburse it
according to law ; that the failure to settle his accounts annu-
ally, until after the second bond was executed, was not con-
clusive to show a misapplication of the moneys previously
received.
All reasonable presumptions favorable to a performance of
official duty are indulged, and it cannot be inferred from the
mere receipt of money on an execution by a sheriff, that he
has converted it. If it had been shown previous to the exe-
cution of the bond in suit, that the principal of the defendants
had appropriated the amount coHected by him, then the first
JUNE TERM, 1844. 8S
Banks and Ready, Executors of Sims, v. Whitebead.
set of sureties only would have been liable. But the proof
does not show such to be the predicament of this case ; the lia-
bility to an action does not appear to have been fixed until
after the renewed bond was prosecuted. This, being the case,
it follows from what has been said, that the Court erred in its
charge to the jury; the judgment is consequently, reversed
and the cause remanded.
BANKS & READY, EXECUTORS OF SIMS, v. WHITE-
HEAD.
1. In an action of covenant upon a general warranty, the averment that at the
sealing and delivery of the deed, one N. had the lawful title, freehold and posses-
sion, of the land warranted, -and still continues so to have, by reason whereof
the grantee is, and always has been unable to recover the possession, shows a
sufficient breach of the covenant, and is equivalent to the assertion of a legal
ouster.
Writ of error to the Circuit Court of Tuscaloosa County.
COVENANT by Whitehead against Banks and Ready, as the
executors of Sims, on a deed of bargain and sale, conveying a
certain tract of land therein described, with a clause of war-
ranty, in these terms: " And the said party of the first part, for
himself, his heirs, executors, and administrators, doth hereby
warrant, and will forever defend the title of the above bar-
gained premises to him, [the said party of the second part,] his
heirs and assigns forever, from the claims of all and every per-
son or persons whomsoever, as also the claims of the General
Government." The declaration contains several counts, all of
them setting out a similar breach to that contained in the first,
which is as follows: " And the said plaintiff avers that at the
time of the making of the said deed, or at any other time, th
said Edward Sims was not the owner of the said bargained
premises, or any part thereof; but that the lawful freehold,
title, and possession in the same, at the time of the making,
84 ALABAMA.
Banks and Ready, Executors of Sims, v. Whitehead.
sealing, and delivering the said deed, was in another person
than the said Edward Sims, to wit that it was in one John
Nelson, and still continues to be in the said Nelson, who then
lawfully claimed and possessed and still continues to claim
and possess, by reason whereof the said plaintiff cannot hold,
possess or enjoy the said bargained premises, or any part there-
of." In one of the counts, after alledging the title, freehold,
and possession to be in the said Nelson, the breach concludes,
"by reason whereof the said plaintiff is, and always has been
unable to obtain possession of said bargained premises." The
defendants demurred, and judgment being given for the plain-
tiff on the demurrer, this is now assigned as error.
L. GLARE, with whom was Mr. PECK, for the plaintiff in
error, insisted that the assignment of breaches upon the cove-
nant of warranty was insufficient, as no eviction was alledged.
J. PORTER, contra, contended that the allegation that the
plaintiff was unable to obtain possession in consequence of the
outstanding permanent title, was equivalent to a formal alle-
gation of eviction. The same facts, if in evidence, would well
warrant a recovery. [Caldvvell v. Kirkpatrick, 6 Ala. Rep.
60.]
GOLDTHWAITE, J. The effect of a general covenant of
warranty, was very fully considered in Caldwell v. Kirkpat-
rick, 6 Ala. Rep. 60.] The question here is as to the neces-
sary averments in a declaration to show a breach ofthis war-
ranty. The plaintiff alledges, in substance, that at the time of
the sealing and delivery of the deed to him, that another per-
son than the grantor had the lawful freehold title, and posses-
sion, and still continues so to have ; by reason whereof the
plaintiff is, and always has been, unable to obtain possession.
The case cited is conclusive to show that proof of these facts
is sufficient to constitute a breach of the warranty. To the
same effect is Cummings v. -Kennedy, 3 Litt. 118. In the case
of Crawford's heirs v. Pendleton, the declaration is to the same
effect as here, except it is added, as a consequence of the ina-
bility to obtain possession', that the plaintiff had been evicted ;
and the Court refused to arrest the judgment although the sup-
posed defect of the breach was urged as a reason to do so. It
JUNE TERM, 1S44. 85
Lewis, et al. v. The Intendant and Town Council of Gainesville.
certainly is unnecessary to alledge more than is necessary to be
proved in an action like this ; and although the strictly formal
course would have been to alledge an eviction, we feel con-
strained to decide that the averments here are equivalent to
the assertion of a legal ouster. In doing so, we do not conceive
we in any manner trench on the rules which govern this cove-
nant, for under the averments of this declaration, the plaintiff
would be held to proof that the possession was in another ;
and after his grantor's title had been shown, it would also be
necessary, in order to sustain the action, to show that it was
inferior in legal strength to the title held by the individual in
possession.
Judgment affirmed.
LEWIS, ET AL. v. THE INTENDANT AND TOWN
COUNCIL OF GAINESVILLE.
1. A license to establish a ferry is the grant of an incorporeal hereditament sab-
ject to be revoked if a sufficient bond is not executed within ten days after such
requisition is made. It is an interest which may be sold, and will descend to
the heir as an incident of the fee.
2. When a transcript from the Commissioners' Court discloses that the Court bad
jurisdiction over the subject, the time when it held its session can not be inquir.
ed into collaterally.
3. If the Commissioners' Court meets at the proper time, it may adjourn to any
day before the commencement of the next term, and is not required to adjourn
from day to day until that time.
Assumpsit from the Chancery Court of Sumter.
THE bill was filed by the plaintiffs in error, and charges that
the father of complainants obtained an order from the County
Court of Sumter for the establishment of a ferry across the
Tombigbee river, at the town of Gainesville, on the 23d of
January, 1834. That he preceded at great expense, to exca-
vate the bank and prepare boats, and continued in the use and
enjoyment of the franchise until his death ; intestate leaving
SG ALABAMA.
Lewis, et al. v. The Intendant and Town Council of Gainesville.
complainants and others his heirs at law. That the complain-
ants purchased from the other distributees their interest in the
ferry, which is evidenced by deeds complainants granting a
a life estate in the profits to two females who are parties com-
plainant to the bill. That the defendants contemplate, and
have commenced the erection of a wharf near the ferry which
will interfere with and materially impair its value, making it
necessary to establish another landing higher up the river, at
great expense, and greatly increasing the risk of crossing the
river to persons and property. That if the corporation are
permitted to- proceed with the proposed work the injury to
the franchise will be great, if not irreparable. The prayer of
the bill is for an injunction, which was granted.
Appended to the bill as an exhibit, are the minutes of the
Court of Roads and Revenue of Sumter county, by which
the order was granted, and the grant of the ferry. The min-
utes recite that, " at a Commissioners' Court held on the 10th
day of June, 1833, pursuant to adjournment, and pres-
ent, &c."
A motion being made before His honor, the Chancellor, to
dissolve the injunction, he allowed the motion upon the ground
that the grant of a license to keep a ferry in this State, was a
personal franchise, and did not descend to the heirs of the
grantee. From this decree an appeal was prayed, and al-
lowed.
BLISS & BALDWIN, for plaintiffs in error. A ferry is an-
incorporeal hereditament, and it is so regarded by the Le-
gislature of this State in connection with the ownership
of the soil. [Clay's Dig. 514; 2 Danes Ab. ch. 27, page
683 : 2 Rolls Ab. 191 ; 2 Black Com. 38 ; 5 ,Am. Dig. 367 ;
Ferry B. ; 13 Eng. Com. Law, 299 ; 6 B. & C. 703; 2 Hilliard's
Ab. 81 ; 2 Stewart's Rep. 160.]
As such it passes by deed and by descent. [3 Kent's Com.
402, 4th ed. ; 3 J. J. M. 668 ; 2d Ib. 227; 1 Howard, 512.J
As property it will be protected. [2 Peter's Dig. 641 ; 6
Munford, 308; 15 Mass. 240.]
Possession and quiet enjoyment are sufficient of themselves
to secure redress, being evidence of title, and sufficient against
a wrong doer. [13 Eng. Com. Law, 299; 2 Saund. P. & E.
189; Adams on Ejectment, 28 ]
JUNE TERM, 1844. 87
Lewie, et al. v. The Jntendant and Town Council of Gainesville.
As to the grant, the Court of Roads and Revenue had ju-
risdiction over the subject, and the Court will not presume that
it was not regularly adjourned.
RE AVIS & METCALFE, contra. The complainants do not
show any right to the ferry, because at the time the grant
was made the Court had no power to sit. [Clay's Dig.
149, 2.] And the record should show affirmatively, that
the Court was held at the proper time, and adjourned from
day to day, and if not legally held its acts were void, (3 Ala.
670; 9th Wheaton, 541; Peck, 82 ; 2 Scammon, 227,) and
may be collaterally impeached. [6 Wheaton, 119 ; 6 Porter,
219.]
If the license conferred a right, it was a personal privilege
and did not descend to his heirs at law, but terminated with his
death. [Clay's Dig! 513, 26, 27; Ib. 515, 41 ; Aik. Dig.
642, 7; 363, 27, 30; Milliard's Ab. 84, 16; 2 Porter,
296 ; 6 B. & C. 703 ; Law. Rep. July, 1842, page, 106 ; 3
Kent's Com. 3 ed. 420, note a.] %
In this State possession alone will not authorize the infer-
ence that complainant had a title.
But whether the complainants show sufficient title, the
bill is without equity, because the corporation was in the ex-
ercise of a lawful authority, unless it be a mischievous case of
pressing necessity, (7th Porter, 306) which alone would au-
thorize the interference by injunction. [6th John. C. R. 46.]
ORMOND, J. At common law, a ferry was an incorporat_
ed hereditament, and was consequently capable of alienation^
and would pass to the heir by descent. In this State, the
whole matter ,has been regulated by statute ; so that we must
therefore look thereto to ascertain what rights appertain to the
grantee of a ferry.
The act now m force upon this subject, (Clay's Dig. 513,
36,) authorizes the Commissioners' Court to grant a license to
any applicant to establish a ferry, toll bridge, or causey to
establish the rate of toll to require a bond from the applicants
in a sum not exceeding fifteen hundred dollars, in the case of
a ferry; to keep good and sufficient boats, hands and the banks
of le stream in good repair : in the case of a bridge or cau-
S8 ALABAMA.
Lewis, et al. v. The Iniendant and Town Council of Gainesville.
sey, that it be well built, and kept in good repair; which bond
the Court may at any time, if it deems it necessary, require the
applicant to renew, giving him ten days notice, and if he fails
to do so, revoke his license. The statute also authorizes an
action on the bond at the suit of any one aggrieved.
The 28th section provides, that where two or more persons
own lands on the banks where the application is made to es-
tabish a ferry, and the owners on each bank apply for a li-
cense, the Court may grant a license to either, at their election.
The successful applicant paying such damages as may be as-
sessed ,upon a writ of ad quod damnum. This act was passed
in 1836, and was intended as a consolidation of the previous
law on the subject with some alterations. The license to es-
tablish this ferry was granted in 1S34 we should therefore
consider this question in reference to the former law, where
there is any discrepancy between them.
It cannot be denied that the tenure of the grant of a ferry in
this State is somewhat doubtful. The use of the term "li-
4
cense," the requisition of a bond from the licensee, the authori-
ty conferred on the Court to require a new bond in its discre-
tion, and the power conferred on it of revoking the license if
such new bond is not given, all seem to'indicatethat the license
is a personal privilege. On the other hand, the statute evi-
dently contemplates that the right to establish a ferry shall be
secured to the owner of the land on the bank of the stream
over which the ferry is to be established. This appears from
the 28th section of the last act, but more explicitly from the
law which was in force when this ferry was established. [Aik.
Dig. 363, 27.] When the applicant owns the land on one
side of the water course only, he has the right to condemn the
land on the other side to obtain a landing. But how could
the a'mount of damages be ascertained if the privilege was to
last only during the life of the applicant ? Again, the power
to grant licenses for ferries is put by the last act upon the same
footing with bridges and causeys; yet it could scarcely have
been considered by the Legislature that any one would build
or construct a causey upon the uncertain tenure of having it
for the term of their lives only. It is trne, that by the act of
1S27, (Aik. Dig 364, 28,) as it respects bridges and causeys,
it appears to have been expected that a contract wouldUbe
JUNE TERM, 1844. 89
Lewiy, et al. v. The Ioiendant*and Town Council of Gainesville.
made for a term of years by the Court with the applicant, but
that only seems .to strengthen the argument, as the same act
when treating of ferries, is wholly silent as to the time for
which it should be held. It appears, indeed, to have been,
considered that the owners of the land at the place where 'the
ferry was established, have a right to the license upon the con-
ditions prescribed in the act, and that is the only construction
which can be put upon the act when therefore the land
upon which a ferry had been established, descended to the heirs
of the licensee, the ferry would pass as an incident of the fee,
and for the same reason it might be aliened. Such we believe
has been the uniform interpretation of this law in this State,
and at this day a very large pioportion of all the ferries which
have been established are in the hands of heirs and purchasers.
In Ladd v. Chotard, Minor, 366, it was held, that the lessee
of a ferry was liable for losses in crossing the river, caused by
his neglect, and not the owner of the ferry ; and the decision is
recognized in Taylor v. Rushing, 2 Stewart, 160; yet this is
wholly inconsistent with the idea of its being a personal privi-
lege. The principle objectioa that the heirs or a purchaser
from the grantee would not be liable upon the bond of the li-
censee, and that the law contemplated that some one should
always be bound in a bond for the security of travellers, al-
though certainly entitled to weight, is not insurmountable.
The Commissioners' Court has the power at anytime it thinks
propel, to demand a new bond, and this might as well be ex-
acted from the heir, alienee or lessee of the ferry, as from the
licensee.
Upon the whole we are of the opinion, that although the act
is somewhat obscure, no other conclusion can be attained
than that a " license" to establish a ferry is the grant of an in-
corporeal hereditament, subject to be revoked by the Commis-
missioners' Court, if a sufficient bond is not executed within tea
days after such requisition is made.
In regard to the certificate of the record of the Commission-
ers* Court, the Chancellor appears to have considered that be-
cause it was a Court of limited jurisdiction, a different rule
would prevail as to the effect of the transcript from what
would be accorded to a transcript from a Court of general ju-
risdiction. This is evidently a mistake. As to the time when
12
90 ALABAMA.
Sheppard, et al. v. Bufor.d.
the Court is to beheld, it is precisely on a footing with the Cir-
cuit Court, which must commence its sittings at a particular
time, and can sit no longer than it is authorized by law to con-
tinue in session.
The transcript discloses that the Court of Roads and Reve-
nue had jurisdiction over the subject, and the time when the
Court held its session, can no more be inquired of collaterally,
than could the 'time when the Circuit Court held its session.
When it is shown from the record that the Court had jurisdic-
tion, the presumption arises that it had power to sit, unless
that fact is controverted in a direct proceeding -upon the re-
cord. In the case of Cullum v. Casey, I Ala. 351, the ques-
tion came up directly upon, error, and we held 4he decree of
the Court void, because there was no authority for the Chan-
cellor to sit when the decree was made ; but beyond all ques-
tion, the decree could not have been impeached collaterally
for any cause* Here, as the jurisdiction is shown, the same
presumption must arise collaterally as if it were a transcript of
the Circuit Court.
, It was not necessary to validate the acts of the Commission-
ers' Court, that it should have adjourned from day to day,
down to the time of making this order ; if it met at the proper
time, an adjournment to any day before the commencement of
the next term, would be sufficient, as it is authorized to sit un-
til the business is completed.
From this view 'it results that the Court, erred in the decree
made, which is therefore reversed, and the cause remanded for
further proceedings.
, , | _ iVi- "f ''
SHEPPARD, ET AL. v. BUFORD.
1. When a garnishee answers that he has received a notice of the assignment
or transfer of the debt in respect to which (he garnishment issues, from a per-
son residing without the State, the Court should order publication for six
months, before proceeding to consider the validity of the assignment : and if
the Court decide -that the assignee is properly before it, without publication, or
the personal service of notice, the appearance of an attorney subsequently,
/or the assignee will not cure the irregularity. '
JUNE TERM, 1844.
Sheppard, et al. v. Bufyrd.
2. J. B. the plaintiff in ajudgtnent against E. S. obtained judgment upon garnish*
meat against sundry persons who had become indebted to the latter, by hav-
ing their accounts due W. P. 3. transferred to E. S. in consideration of a
note made by W. W., which E. S. assigned to 1V. P. S: Held that if the
plaintiff, prosecuted his garnishments with a knowledge of the circumstances
under which E.S. became the proprietor of the accounts due W. P. S., or, if
after having acquired such knowledge he attempted to coerce a collection *> f
the judgment against the garnishees, he impliedly admitted the validity of the
transaction between E. 8. and W. P. S. and could not proceed against W. W.
to condemn the sum due upon his note.
l!1" "j/.'Ml . '/. , .- '"' r'i V & M<-?T
Writ of error to the Circuit Court of Barbour.
i l , ,.,- , . '.. \ ...->. ., , Vs
T*H,E defendant in error recovered a judgment against Lore
and Edmund Sheppard, and caused the latter to be arrested
oh a ca. sa. who discharged himself by rendering a schedule
of his estate and taking the insolvent oath. Wm. Wellborn
was summoned as a garnishee upon the supposition that he
was indebted to Edmund Sheppard, and answers', that the lat-
ter had recovered a judgment against him, but he had been
notified that, it was transferred to tVm. P. Sheppard, before
the service of the garnishment. An original and alias notice
were issued under the order of the Court, requiring the as-
signee of the judgment to contest with the plaintiff in execu-
tion the validity* of the assignment : neither of these notices
were served on the assignee, and although rt was shown that
he resided without this State, the Court adjudged that two re-
turns of non est inventus were equivalent to service, and that
he was properly in Court. Thereupon the counsel of the as-
signee excepted. Under the direction of the Court an issue
was formed and submitted to the jury. In addition to the
foregoing facts, it was proved on the trial, that Wm. P. Shep-
pard being about to'leave the State, transferred^ to E. Shep-
pard accounts due him ibr professional services as a physi-
cian, amounting to twenty-four hundred and seventy dollars,
in consideration of the assignment of the judgment against
Wellborn to him, (W. P. S.) That the plaintiff in execution,
before E. Sheppard was arrested on the ca. sa., was informed
of the transfer of the note on which the judgment against
Wellborn was recovered, and the Assignment of the medical
accounts as an equivalent. ' Some few weeks previous to the
trial, he caused garnishments to be issued to some of the per-
92 ALABAMA.
Sheppard, et al. v. Buford.
sons mentioned in the schedule of E. Sheppard, as being in-
debted to him on the accounts assigned by W. P. S., and had
obtained judgment against some of them as the debtors of
E.S.
It appeared that the plaintiff was then for the first time in-
foYmed that the schedule of E. S. embraced' any part of the
accounts transferred him by W. P. S ; and he then proposed
to release all right to such accounts, and discharge all judg-
ments in his favor -founded thereon, if any, which the Court
permitted. Further the plaintiff in execution offered to in-
troduce testimony that the assignment of the judgment by E.
S. to W. P. S. was in bad faith ; to all which the assignee ob-
jected, but his objection was overruled, and he thereupon ex-
cepted.
1. The assignee then prayed the Court to charge the jury,
that if they believed from the evidence, that the plaintiff with
a knowledge of the transaction between E. S. and W. P. S. in
respect to the debt due by Wellborn, had recovered judgment
against the debtors on the accounts assigned by W. P. and E.
S., that would be an affirmance of the transfer of the debt
owing by the garnishee, and they must .under such circumstan-
ces find for the assignee. Which charge the Court gave.
Further if they should believe from the evidence, that
the plaintiff with a knowledge of the transfer of the demand
upon Wellborn, by E. S. to W. P. S. had attempted to control
the collection of the books of account assigned by the latter to
the former, as the effects of E. S. that then he will have affirm-
ed the transfer, and cannot disavow his acts, by relinquishing
the right thus acquired against the debtors in those accounts.
The Court refused to give this charge, but instructed the jury,
that if the plaintiff controlled the debts assigned by W. P. to
E. S. without a knowledge that the latter became the jproprie-
tor of them, in consideration of the transfer by him of the
debt due by Wellborn, he would not be estopped from deny-
ing the validity of the transfer : if, however, he had a knowl-
edge of the consideration passing from W. P, to E. S., accept-
ed of and controlled the same, he would be estopped. To
all which the assignee excepted ; and his bill of exceptions,
presenting the legal questions arising upon the foregoing facts
has been signed, sealed and cer fined to this Court. The jury
JUNE TERM, 1844. 93
Sheppard, et l. v. Buford.
9
returned a verdict for the plaintiff in execution, and judgment
was rendered thereon.
P. T. SAYRE, for the plaintiff in error.
J. BUPORD, for the defendant
COLLIER, C. J. The act of 1840 provides, that when a
garnishep. answers that he " has received notice of the assign-
ment or transfer of the debt or property in respect to which
the garnishment is issued, the Court shall not render judgment
against the garnishee, but shall suspend proceedings until the
validity of the assignment is litigated. And in order that the
question may be tried, it is directed that a notice issue to the
party to whom the assignment or transfer is alledged to have
been made, which "shall be served at least five days before the
matter shall be heard." " If the question shall be determined
against the party claiming such debt or property, so alledged
to be transferred, then the Coftrt shall render judgment final
against the garnishee, reserving to said garnishee, his expenses
as is now provided for by law ; and also reserving to the said
garnishee, and to all the partiescontesting said question the right
of appeal or writ of error." Further " If two notices shall
issue to the party alledged to be the assignee or transferree of
any such debt or properly, and the same shall not be returned
not found, then the Court before which said garnishment is
pending, shall proceed to render such judgment as is right in
the matter, having due regard to the laws regulating assign-
ments, and judicial or original attachments." Lastly " In
case the party who shall be alledged to be the assignee or
transferree of the debt or property embraced in the garni-
shee's answer is a nonresident, then the Court shall order pub-
lication for six months, before proceeding to consider the ques-
tion litigated between the parties.'' [Clay's Dig. 63, 39, 40,
41 ; 84, 45.]
The effect of the provision which authorizes the Court to
proceed against the garnishee and assignee, when two notices
have been returned not found, is limited by the subsequent
section, which requires publication to be made for six months,
when the assignee or transferree is a non-resident. In the
case at bar, the assignee was a non-resident, and it was not
competent for the, Court, upon the return of the notices unexe-
94 ALABAMA.
Sheppard, et al. v. Buford.
ctited, to direct an issue to be made up betweeq him and the
plaintiff in execution, and thus litigate and determine his
rights. This irregularity was not cured by the subsequent ap-
pearance of the assignee, by an attorney. This though a vol-
untary act, could not expurgate an error which coerced the as-
signee to such a course. ^
In Butler & Alford v. O'Brien. (5 Ala. ; Rep. 316,) it was de-
cided that if a creditor receives of his debtor a note, which a
third person gave to the latter on the purchase of goods, if the
creditor was cognizant of the consideration of the note, when
be became its proprietor, or retained it as. his own, after he
acquired such knowledge; in neither case will he be allowed
to show that the sale of the goods was fraudulent, with the
view of subjecting them to the payment of his debt. The princi-
ple of 'the case cited, is strikingly applicable to the case before
us, and very clearly shows, that if the plaintiff in execution,
with a knowledge that E. Sbeppard .became the proprietor of
accounts due by sundry persons, under a transfer by W. P.
Sheppard, in consideration of the assignment of a debt due by
Wellborn to the former, obtained judgment against the per-
sons by whom those accounts were due, as the debtor of E.
S., he cannot be permitted to insist that the assignment of
Wellborn's debt was fraudulent. So if he recovered euch
judgments without a knowledge, t that the persons against
whom they were rendered, became the, debtors of E. S. by as-
signment of W. P. S. as,an equivalent for Wellborn's debt,
he should upon being informed thereof, relinquish the judg-
ment, or offer to do so, if he would charge Wellborn as the
debtor of E. S.
The first charge given, was such as the assignee prayed,
and is unobjectionable in itself. The second charge asked,
supposed that a knowledge of the transfer of the demand
against Wellborn, although the plaintiff in execution knew
uothing of the accounts being transferred as equivalent there-
for, would make the garnishment of the persons by whom
those accounts were due, or the debtors of E. S., equivalent
to a confirmation or approval by the plaintiff in execution of
the transaction between E. S. and -W. P. S., and estop the
plaintiff from showing that it was fraudulent. This instruc-
tion was properly refused ; because' it considered as unimpor-
JUNE TERM, 1844. 95
The Branch of the Bank bf the State of Alabama at Mobile v. Collins.
tant a knowledge of the circumstances under which E. S. be-
came the proprietor of the accounts.
^The last charge given was strictly correct, and expressed in.
terms of marked accuracy, the law as we have laid it down.
But upon the first point raised, we have seen that the Court
.misapprehended the law, in adjudging that the return of two
notices not found, was equivalent to personal service, on a
non-resident assignee.
The judgment is consequently reversed, and the cause re-
manded.
r'T
THE BRANCH OF THE BANK OF THE STATE OF
ALABAMA AT MOBILE v. COLLINS.
, * i 1*' '
1. A director of the Branch Bank at Mobile receiving: the compensation provided
by law as such director, caanot make a contract with the board for compensa.
tion for extra services, whilst he continues a member of the board of directors/
2. An order of the board of directors allowing a compensation of $1,000, each, to
to the members of the board, constituting the " Real Estate Committee," is ille-
gal and void.
3. The board of directors may compensate one of their number for services ren-
dered to the Bank previous to his connection with it as one of its directors.
4. Where work waa done by other mechanics for the Bank, under the superin-
tendence of one of the board of directors, the board might lawfully direct the
compensation to be paid to him for the use of those doing the work.
5. Where money is paid to a director by order of the board, not authorized by Jaw,
the Bank may recover it as so much received to its use.
Writ of error to the Circuit Court of Mobile County.
ASSUMPSIT by the Bank to recover certain moneys from Col-
lins, had and received to the use of the Bank.
At the trial, the proof was that this action was brought by
ojder of the Governor, by virtue of a joint resolution of the
General Assembly, approved 14th February^ 1843.
The defendant was a director of said Bank from the 9th of
April, 1842, until February, 1843. He received from the Bank
96 ALABAMA.
The Branch of (he Bank of the State of. Alabama at Mobile v. Collins.
the full compensation provided by law for a director, and also
the sum of 1,000 dollars, as a compensation for his services as
a member of the real estate committee, that being a committ^
appointed by the board of directors of the Bank, during the
same period of time, for which he received his pay as a di-
rector. He also received from the board of directors several
sums of money for work and labor performed for the Bank
during the same period ; as also for work and labor of me-
chanics employed and superintended by fciim. These pay-
ments were for the sums, and of the dates, which follow :
30th December, 1842, 934 39
3d January, 1843,. '. 1,000 00
7th January, " > *- 43311
3d February, " 389 25
The defendant proved that the sum of 934 38-100 dollars,
was forxwork and labor done for the board before the passage
of the joint resolution, and before he was a-director: the sum of
433 11-000 dollars and 389 25-00 dollars, was for work and
labor done by other mechanics, superintended only by him:
these sums were paid them by the Bank, and they only passed
through his hands. He also offered evidence to prove that
the real estate of the Bank required some person to superin-
tend it, to rent, lease, &c. that a thousand dollars' was a rea-
sonable compensation, to the person so employed, and that he
was, perhaps, the most competent person in the city, being a
master builder. He also offered evidence to prove that all the
sums paid to him had been approved by the board of directors,
and by them ordered to be paid, but the witness did not know
whether there was any written evidence of this upon the mi-
nutes of the board.
This was the entire evidence, and the plaintiff" requested the
Court to charge the jury
1. That it was pot competent to the board of directors to
make a contract with one of their own body, for extra com-
pensation in taking care, or in any manner supervising or su-
perintending ihe interest or the property of the Bank ; that
the compensation allowed by law to the directors, was in full
of services of every kind in supervising, superintending, or
otherwise controlling the business and assets of the Bank ; and
that if the defendant, while a director of the Bank, acted as ORC
JUNE TBM, 184 -
The Branch of (be Bank of the State of Alabama at Mobile T. Collins,
of a committee, and was employed in taking care of, and leas-
ing the real estate belonging to the Bank, the board had no
authority to allow, nor the defendant to receive the sum of one
thousand dollars as a compensation therefor, and the plaintiff
must recover.
2. That to prevent a recovery in this case, it was incumbent
on the defendant to show that the sums so received by him
were appropriated and ordered to be paid by some resolution
or memorandum or the minutes of the boarJ.
3. That if the jury should find that the payments of the said
sums of money were made subsequent to the meeting of the
General Assembly, on the first Monday in December, 1842,
then they were made illegally, and the plaintiff could recover
in this form of action.
These instructions were refused, and the refusal is now as-
signed as error.
PHILLIPS, for the plaintiff in error, insisted that the contract
for compensation was entirely void, on the principle that the
agent could not contract with himself. Independent of this,
the services paid for were such as were within the ordinary
duties of a director, and therefore fully compensated by the
salary provided by law. [McGehee v. Lindsay, 6 Ala Rep.
16.1
DARGAN, with whom was CAMPBELL, for the defendant,
argued :
1. That the services rendered in relation to the real estate,
were not within the general duties of the defendant as a direc-
tor, and therefore he could contract for a compensation ; or if
he could not contract he was entitled to a compensation com-
mensurate with the worth of the services.
2. As to the payments for work and labor there was no pre-
tence that these were unjust The resolution declaring previ-
ous payments illegal could not affect the right.
3. The action is misconceived, inasmuch as it should have
been case against such of the directors of the Bank as concur-
red in making the contract, or the appropriation, if either was
illegal, or not within their authority.
" I ' V "--.- rf.V%r*lfrt
13
9$ ALABAMA.
The Branch of the I$ank of the State of Alabama at Mobile v. ( Collins.
GOLDTHWAITE, J. We shall consider the case present-
ed by the bill of exceptions, 1st With reference to the money
received by the defendant in consequence of the resolution of
the board of directors to allow compensation to the members
of the real estate committee: 2d With reference to the money
paid him for services performed before his connection with
the Bank: And, 3d in regard to the moneys received from
the Bank, and paid out by him to others, performing Work and
labor for the Bank, under his superintendance.
1. Itjseems to us that the extra compensation of one thou-
sand dollars, was allowed by the board of directors, and receiv-
ed by the defendant, in direct opposition to positive law. Dur-
ing the whole period that the defendant was a director of the
Bank, his compensation was fixed by statute, at seven dollars
for each day, he was engaged in the discharge of his*duties as
such an officer. [Clay's Dig. 109, 24.] What their duties
are, is ascertained by reference to the charter of the Bank :
this provides that for its management a certain number of di-
rectors shall annually be elected by the General Assembly ;
and the president and directors, for the time being, are invest-
ed with power to appoint and remove the cashier, and such of-
ficers and clerks under them, as shall be necessary to execute
its business ; also to 'allow them such compensation for their
services as shall be reasonable and just. [Ib. lfJ9, 25.]
Here then, we perceive a compensation as provided by posi-
tive enactment is to be paid to each director for his services in
the management of the Bank. The management of its real
estate was as much a duty imposed by the charter upon the
directors as any other matter confided to their charge ; and
there is no pretence for extra compensation for this which will
not as well apply to any other duty. But conceding that some
services could be performed by a director out of the ordinary
course of his duties as such, yet he would be entitled to no
compensation for them, so long as his relation with the Bank
in that character continued. He cannot, at the same time, be
a servant of the directors and a director too. The relation of
master and servant in the same individual is incompatible, and
cannot exist. It would be found impracticable to secure fideli-
ty in the execution of a trust, if the same person is to perform
services with respect t6 it, and afterwards judge, not only of
JUNE TERM, 1844. 99
The Branch of tbe Bank of (be State of Alabama at Mobile v. Collins.
the manner irr which the services are performed, but also of
the compensation to be allowed therefor. It would be impos-
sible, when the director became the servant, to determine that
the necessity for his services was not induced by his own acts.
Common sense would seem to lead to the conclusion, that such
services would be considered as merely gratuitous acts, and
and that any compensation to t>e allowed for them, must de-
pend entirely upon the will of the person for whom they were
rendered. Such is the light in which they are considered by
law, and no actipn can be maintained to enforce compensa-
tion.
No legal effect can be given to the resolution of the board
allowing this extra compensation, because the directors were
not authorized to act in reference to the subject matter. They
were there for the purpose of managing the concerns of the
Bank, not for the purpose of .voting themselves or their col-
leagues compensation ; whether for extra, or for ordinary ser-
vices. The law had already determined what their duties
should be, and fixed the amount they should "receive. AH ser-
vices beyond those provided for, if indeed any such could be
rendered, were either purely gratuitous, or if otherwise, de-
pendent for compensation upon the future action of the Legis-
lature ; which stands to the Bank in the relation of the autho-
rized agent of the people of the State, who are the stockhold.
ers in these institutions. This necessarily disposes of the first
question, and shows that the receipt of the thousand dollars
was illegal. The consequence is, that it was money received
to the use of the Bank, which- may be recovered if this is the
proper form of action.
2. The second question, is that \vhich arises upon the pay-
ment of money to the defendant, for services performed by him
previous to his connection with the Back as one of its direc-
tors. The payment was made on the 30th December, 1842,
and the act under which this suit is supposed to warrant the
recovery of this item, was approved the 14th of February, of
the ensuing year. This act provides for the appointment of
commissioners to examine and investigate the expense account
of this Bank, and to determine upon the legality of each item
of expenditure ; and amongst other matters, " that all allowan-
ces and appropriations made by the said Branch Bank since,
IPO ALABAMA.
The Branch of the Bank of the State of Alabama at Mobile v. Collins.
[the meeting of the Legislature,] are thereby declared illegal;"
and the Governor is directed to order suit to be instituted for
the recovery of such allowances or appropriations. We ap-
prehend this can only be considered as a declaration of the
opinion of the Legislature, that the allowances were not war-
ranted by the existing laws. It is certain, nowever, that no
effect can be given to it by the*judiciary, unless under the cir-
cumstances attending these appropriations, they were not war-
ranted by the laws in force, when they were made. It will be
seen that this item was for work and labor performed by the
defendant for'the Bank, before he was a director ; and it can-
not be doubted, we think, that it was the exercise of the pro-
per and ordinary powers of the board to direct its payment.
Even if it was othef wise, and the defendant had Wrongfully
acquired that sum, and the Bank had afterwards sued for it,
the defendant would be permitted to retain the amount legally
due for services performed under these circumstances, as it is
clear that he could maintain a cross action for what he rea-
sonably deserved to have.
3. The other class of items are without any legal ground
upon which to rest the claim for recovery. It appears from
what was proved in relation to them, that the moneys were
paid by the defendant to other persons', for work and labor
done by them upon the real estate of the Bank, ynder the su-
pervision of the defendant ; and we must infer, as no attempt
was made to prove the contrary, that the payments were rea-
sonable and just. This seems to be entirely within foe proper
province of the defendant as a director, and it was unimpor-
tant whether the payments were made directly to the work-
men, or were made to the defendant, to be paid to (hem. In
the latter case, the defendant completely discharged himself
when he showed the services performed, and the payment of
the money received by him as their agent.
4. It is argued, however, that the action should have been
at the suit of the State against the defendant for a breach of
duty, instead of by the Bank, for the recovery of the money
illegally received. This argument does not seem to rest on a
sound basis, for if it was conceded that such an action might
be maintained, it does not follow that this is irregular. The
sufficient answer to it is, that the defendant has money in his
JUNE TteRM, 1844. 101
The Branch of the Bank of the State of Alabama ai Mobile v. Collins.
hands which of right belongs to the Bank, and therefore that
institution is well warranted in suing for it.
Our conclusion is, that the judgment of the Circuit Court is
erroneous, and therefore it is reversed and remanded.
> * il. . . (.'*!*
COLLIER, C. J. I entirely concur in the conclusions just
expressed by my brother GOLDTHWAITE, but as this case i|
one of more than ordinary interest, and the principles upon,
which it rest may decide many others, I avail myself of the
occasion to subjoin a few remarks.
- It may be. conceded, that a corporation aggregate, in virtue
of its general powers, may contract with persons who are
members of it; and ihe contract is not on this account invalid;
the member thus contracting must be regarded as to that con-
tract a stranger, rather than a corporation, Aug. & A. on Cor.
2d ed. 169, 212, and cases there cited ; Pope v. Brandon et aL
2 Stew. Rep. 401., But .this is the law in respect to private
corporations only. In the popular meaning of the term, near-
ly every corporation is public, inasmuch as they are created
for the public benefit ; but if the whole interest does not be-
long to the government, or, if the corporation is not created
for the administration of political or municipal power, the
corporation is private. " A Bank for instance may be created
by the government for its own uses ; but if the stock is owned
by private persons, it is a private corporation, although, it is
erected by the government, and its objects and operations par-
take of a public nature." [Aug. & A. on Corpo. 23; Trus-
tees, &c. v. Winstou, 5 Stew. & P,'s Rep. 17.] And in res-
pect to the late Bank of the United States, it was said, if its
stock belonged exclusively to the government, it would be a
public corporation ; but inasmuch as there were other owners
of the stock, it was held to be a private corporation. [Dart-
mouth College v. Woodward, 4 Whe.at. Rep. 668; 2 Kent's
Com. 832. See also Owen et al. v. The Branch Bank at Mo-
bile, 3 Ala. Rep. 258 ; The Bank of the State v. Gibson's
Adin'r. 6 Ala. Rep. 814 ] These citations incontestably show,
that the State Bank and Brandies being the exclusive proper-
ty of the State are public corporations, and that the State is
the sole corporator. So, that in the case before us, the ques-
tion cannot possibly arise, whether a corporation may employ
102 ALABAMA.
The Branch of the Bank of the State of Alabama at Mobile v. Collins, ^y
one of its member's as an agent, or enter into any other contract
with him.
The second section of the act which created the plaintiff a
corporation, expressly provides, that the Legislature shall an-
nually elect a president and directors "for the management of
the concerns of the said, Branch Bank;'' the third section,
funong other things, declares that, " The president and direc-
tors for the time being, shall have power to elect and remove
the cashier, and such other officers and clerks under them as
shall be necessary to execute the business of the said Branch
Bank, and allow them such compensation for their services as
shall be reasonable and just." [Clay's Dig. 97.] By the act
of 1839, "to compensate the Directors of the Bank of the
State of Alabama and its several Branches," (Clay's Dig. 109,
24,) it-is enacted, that- the directors of the Branch Bank at
Mobile shall receive " seven dollars per diem, for every day
they may be engaged in the discharge of their duties as direc-
tors^ and it shall be the. duty of the cashier, under the super-
intendence of the president in each Bank, to keep a regular
account of the days of service rendered by each director, and
transmit the same to the presiding officer of each- house of the
General Assembly, and the payment of the sums due the dif-
ferent directors shall be provided for by an act of appropria-
tion, by the General Assembly, at every session."
It is said tjiat a person cannot take upon himself incompati-
ble duties and characters at the same time, or become agefit in
a transaction in which he has an adverse interest or employ-
ment. [McGehee v. Lindsay, 6 Ala. Rep. 16.; Story on Ag.
11, 199, 200] So, in general an agent cannot delegate his
authority unless the power of substitution is conferred in ex-
press terms. [Id. 14, 15, 16, 17; 39.] Agents can only be
appointed in the manner prescribed by. the statute where it
speaks upon the subject ; and the directors of a corporation
specially empowered by the charter to contract on its behalf,
have no power -to appoint sub-agents to contract for the corpo-
ration, unless such power is expressly given to them. [Ang.
& A. on Corpo. 210, 212, 242:] Nor can the directors who
are vested with the power of discounting notes and bills, dele-
gate this trust to an agent or agents of the board. [Id. 211 ;
3 Louisiana Rep. 568; 6 Paige Rep. 497; 12 Mass. Rep. 237.]
JUNE TERM, IS44. 103
The Branch of the Bank of the State of Alabama at Mobile v. Collins.
The directors of our State Banks are not individually corpo-
rators, as has been already shown, and they are not even offi-
cially designated in the style of the corporations ; the plaintiff
is called "The Branch of the Bank of the- State of Alabama at
Mobile." They are, appropriately speaking, agents of the
State, with powers limited by the charter, either expressly or by
legal construction. In the language of the act, they are elect-
ed " for the management of the concerns of said Branch Bank."
As such agents,^it is the duty of the directors to exercise a su-
pervision over and to manage as far as necessary, not only the
funds andj debts due the Bank, but the real estate also. If the
performance of this duty makes it necessary to appoint officers
extraordinary, the third section of the charter confers the pow-
er for that purpose, and authorizes such compensation to be
given " as shall be reasonable and just." When then the offi-
cial machinery of the Bank is insufficient for the management
of its interests, should not the directory -appoint " other officers
and clerks?" Can they devolve upon their own board or some
of them, what they may consider extra duties and services,
and allow additional compensation therefor ? Would not such
an arrangement be> opposed to public policy, as it Would with-
draw the directors from their appropriate duties, and tempt to
prodigality in expending the funds of the Bank, with a view
to their own benefit? It is not necessary Jo answer these
questions in the present case, as the conclusion attained, may
be supported upon other grounds, quite as conclusive.
The act of 1839, we have seen fixes the salary of the direc-
tors at seven dollars per diem, for each day they may be en-
gaged in the discharge of their duties as such ; and it is not com-
petent for the directory, in despite of the declared will of the
Legislature, to make a further appropriation for their official
services, from the funds .committed to their management. la
the case before us, it does not appear that the supervision, &c.,
of the real estate of the corporation, was made an office by the
board, or that it was in any manner detached from the ordinary
functions of the directors;. but it is expressly stated that the
" Real Estate Committee,'' was appointed by the board, and of
course the members of that committee were as such directors.
So far then, as it respects the one thousand dollars paid for ser-
vice on this committee, the case when denuded, is this the
104 ALABAMA.
Anderson v. Rhea.
Legislature elected the defendant one of the directors of the
plaintiff, having first prescribed his per diem compensation,
and in addition to his daily allowance, the board pay him as
one of its members the sum of , one thousand dollars, for^about
ten months that being the time he was in office. Money
thus paid without the authority of law, or any consideration
recognized as legal, cannot be retained. The right to recover
at the suit of the plaintiff, (the funds of which have been dimin-
ished by the payment to the defendant,) is clearly maintaina-
ble, both upon reason and authority.
ANDERSON v. RHEA. ' .
1. A forthcoming bond must describe the execution which is thereby supeneded
with sufficient certainty to enable the Court to determine what execution it was
intended to supersede, but a small and unimportant variance will be disregarded.
9. Where a forthcoming bond corresponds with the execution in all respects, ex-
cept that the cents in fhe judgment are omitted, the variance will not affect the
bond.
3. The requisition of the statute that the bond shall be taken in double the amount
of the execution, and that the property shall be delivered .at twelve o'clock, noon,
are directory merely.
4. A variance between the property described in the bond as having been levied
on, and the indorsement of the levy on the execution, cannot be taken advantage
of by the defendant.
5. The return of a sheriff that the bond is forfeited, may be impeached by proving
that the defendant was ready on the day, and at the place named in the bond,
to deliver the property. The appropriate mode of doing this is by superseding
the execution which issued on the forfeited bond.
6. A discharge of the levy as to part of the property, by the execution of a bond
for the trial of the right, after the execution of a forthcoming bond, will not dis-
pense with an offer to deliver the residue of the property.
Error to the Circuit Court of Cherokee.
THE plaintiff in error filed her petition to supersede an ex-
ecution which had issued against her as surety on a forfeited
delivery bond. The object of the petition was, to supersede
and quash the execution, for various reasons, but principally,
JUNE TERM, 1844. 105
Anderson -v. Rhea.
because the sheriff did not return the bond forfeited, until long
after the return day of the execution that she was ready to
deliver the property, as to which the bond was supposed to be
forfeited, on the day and at the place it was to. have been de-
livered and because of a variance between the execution and
the bond.
The Court refused to quash the bond for the variance ; and
(he plaintiff then asked leave to introduce proof, that the re-
turn made by the sheriff that the bond was forfeited, was false
and fraudulent, and asked the Court to impannel a jury to try
the fact, which the Court refused, and refused to permit the
testimony to be introduced, and dismissed the petition. From
this judgment this writ is prosecuted, and the plaintiff now as-
signs for error :
1. The refusal to quash, for the variance between the bond
and execution.
2. In refusing to allow a jury to try the facts, and in the
trial of the facts by the Court.
3. In refusing to permit the plaintiff to prove the return
false and fraudulent.
' i .
WALKER, for plaintiff in error, cited Lunsford v. Richardson
& O'Neil, 5 Ala. 618, and 7 Mass. 98,; 1 Howard, 50 ; 2 Leigh.
545 ; 1 Ib. 442 ; 2 Wash. 189, upon the question of vari-
ance.
RICE, contra.
ORMOND, J. A forthcoming bond must describe the ex-
ecution which is thereby suspended, with sufficient certainty
and accuracy, to enable the Court to determine what execu-
tion it was designed to suspend. But we are of opinion, that
the same degree of certainty is not necessary, which is requir-
ed in the description of an instrument in pleading. It will be
sufficient, if the Court can with reasonable certainty, conclude
that they are the same; a small and unimportant variance
will therefore be disregarded.
The variances relied on are, that the execution issued for
#267 11 debt, and $13 87 i costs and damages, whilst in the
description of the execution in the bond the cents are omitted.
We consider the variance immaterial. The execution and
14
106 ALABAMA.
Anderson v. Rhea.
the description of it in the bond, corresponding in all other
respects, we cannot doubt that they are the same. ,
The case relied on from 5th Ala. is entirely unlike this;-
there the parties were not the same, and there was a differ-
ence of about three hundred dollars in the amount of the
judgment, between the execution and its recital in the bond.
The reo t uisitions of the statute, that the bond shall be taken
in double the amount of the execution, and that it shall be
/ stated that the property shall be delivered' at " 12 o'clock,
noon," are directory merely. That the. penalty of the bond
was for less than dduble the amount of the execution, and
that the defendant had. the whole of the day to deliver the
property in, were for her benefit, and she cannot complain of
them.
The variance between the property described in the bond
as having been levied on and the indorsement of the levy on
the execution, cannot be taken advantage of by the defendant.
The description of the levy is not a part of the description of
the execution. The sheriff is not concluded by the levy re-
turned pn the execution, but may amend it to correspond with
the truth of the case. The defendant was not bound beyond
her undertaking in the bond, and might have discharged her-
self from the condition, *by delivering, or being ready. to de-
liver, on the day and at the place named in it, twenty-five
head of hogs, although the sheriff returned on the execution
that he had levied on seventy-five head.
The fact, that a bond was given foj? a trial of the right of
some of the property levied on, and'the levy discharged as to
other property, after the execution of the bond, did riot change
or alter the obligation of the defendant to deliver the hogs, as
to which the levy had hot been discharged, or any bond given
to try the right.
It follows from what has been previously stated, that the
Court did not err in refusing to quash the bond, but we think
the Court cbmmitted an error in refusing to permit the defend-
ant to show that the return of the sheriff, that the bond was
forfeited, was false.
In ordinary cases, it is true, that the return of a sheriff can-
not be impeached collaterally, but we think that those re-
turns of sheriffs, which in so many instances, by our legisla-
JUNE TERM, 1844. 107
Branch Bank at'Mobile v. Scott.
tion, have the force and effect of judgments, may be thus im-
peached, otherwise the party will be subjected to a judgment
without a jnry trial, and be driven to seek the aid of a Court
of Chancery. These statutes are all unconstitutional, unless
some mode exists by which the party against whom a judg-
ment has thus been rendered ex parje can test its validity;
and the cheapest and most expeditious mode of accomplishing
this, is by supersedeas, as in this case. If the defendant was
ready on the day and at the place to deliver the hogs mention-
ed in the bond, thje return was false, and the statute judgment
founded on it should be vacated. , This we understand from
the record, the defendant proposed to prove, and the Court re-
fused her permission to do so.
For this error, the judgment must be reversed and the cause
remanded.
BRANCH BANK AT MOBILE v. SCOTT.
1. An appropriation and payment by the board of directors of the Branch Bank at
Mobile, to an individual director, for extra services, performed by him in the
interior 'counties of the State, is not warranted by law; and the amount thua
paid may be recovered from him by the Bank.
Writ of error to the Circuit Court of Mobile.
GOLDTH WAITE, J. The case of Mr. Scott is not different
in principle from that of Mr. Collins, [ante 95.] Mr. Scott was
a director for the same year and received an extra allowance
of five hundred dollars, for services' performed by him as the
agent of the Hank, in several of the interior counties during the
summer of 1845. These services were proved to be reason-
ably worth the sum allowed for them, but the appropriation
is subject to the same legal objection, that the services were
performed while he was a director. In the case of Mr. Col-
lins, we endeavored to show that the board had no authority
to direct compensation even for services out of the ordinary
10S ALABAMA.
The Bank of Mobile v. Marston.
course of the business of director; and that when such were
rendered no legal claim for compensation arose ; but the indi-
vidual was thrown on the consideration of the Legislature for
compensation. In the present case, it may be proper to add,
that the defendant would certainly be entitled to retain his per
diem allowance, during the period he was engaged in the bu-
siness of, the Bank, if thai had not previously been allowed iu
his general account.
Judgment reversed and cause remanded.
THE BANK OF MOBILE v. MARSTON.
1. Where commercial paper is placed in the hands of a i notary for demand and
protest, if he has not given notice to the drawer and indorsers. he must inform
the holder with all reasonable despatch what he has done ; and if he has under,
taken to give notice, he must perform this duty in such a manner as not to pre-
judice the holder's rights.
2.. The certificate in the protest of a notary setting forth the demand and refusal of
an inland bill, &c., and notice to the drawer and indorsers, is made evidence by
statute, yet it is not conclusive ; and it is competent for the party to show such
a state of facts, as prove that the certificate is untrue?
3. Where the notary certifies that he has given notice of the dishondr of paper to
the drawer or indorsers, aqd the holder in consequence thereof, fails to give it, if
the certificate of the notary is false, he will be bound to make good any loss
which, may result from its falsity.
4. Where the maker of a note who has indemnified his indorser, afterwards shows
the note to the latter, telling him that he has paid it, and demanding a release of
the indemnity, which is. accordingly done; if the note has not been paid, the
holder cannot excuse the want of notice to the indorser by showing that he had
been indemnified.
5. The measure of damages in an action against a notary for failing to give no-
tice of the dishonor of paper according to his undertaking, must be graduated
by the injury sustained by the neglect ; in estimating which, tie solvency of the
party to whom the notice was given, is an important element.
Appeal from the Circuit Court of Mobile.
THIS was an action on the case by the plaintiff in error
against the defendant, to recover damages for his neglect to
give notice to Thomas G. Newbold, that ^promissory note
JUNE TERM, 1844. lOf
The Bank of Mobile v. Marston.
made by Jeremiah Findley and John Cody, and indorsed by
Newbold, Andrews, and Fontaine & Freeman, for the pay-
ment of seven hundred and forty-one dollars on the first and
fourth of January, 1839, had not been paid at maturity, by
the maker. The cause was tried upon an issue of fact, and
the jury returned a verdict for the defendant, on which a judg-
ment was rendered.
On the trial, the plaintiff excepted to the ruling of the
Court. . It is shown by the bill of exceptions, that the plaintiff
read the note and indorsements to the jury, ^Iso a notarial
protest made by the defendant, in which he states, " that the
indorsers have had due notice of the demand and non-pay-
ment, and protest of said note, by notice in writing, directed
by me, as follows : to T. G. Newbold, and left at his office;
and for the two last indorsers, and left at the office of Fon-
taine & Freeman." Further the plaintiff proved that the
makers and indorsers were, at the maturity of the note, with
the exception of Newbold, insolvent, and .still continued so,
and Newbold was now insolvent. TJie record of a suit against
Newbold upon his indorsement, was also adduced, in which
a judgment was rendered in his favor, on-the 24th of Decem-
ber,. 184 1 ; the defence of tha,t action was as Newbold testi-
fied, the want of due notice of non-payment by the makers.
The plaintiff also proved by Newbold, that at the time of
the protest he had no office in the city of Mobile, or elsewhere,
and that he never received notice. It was also shown by the
same witness, that the note in question was one of three, pay-
able in one, two, and three years ; that the makers had trans-
ferred him indemnity for his indorsement. At the. maturity of
the third note it was presented to him by the makers, who
stated that all the notes were paid, and required him to re-
lease his indemnity ; which he did. The first intimation that
he afterwards had, that he was looked to for ihe payment of
the note, was about the time he was sued on his indorsement
It was further shown that the uniform custom and usage in
Mobile, required that a notary to whom a negotiable note was
given for demand and protest, should himself give notice of
the non-payment to the indorsers. The defendant offered no
evidence, and the Court charged the jury that the plaintiff was
not entitled to recover.
110 ALABAMA.
The Bank of Mobile V. Marstoti.
P. PHILLIPS, for the appellant, cited The Bank of Mobile v.
Huggins, 3 Ala. itep. 213; Story on Agency, 197; 6 Shep-
ley's Rep. 108.
BLOUNT, for the appellee, cited 3 Johns. Rep. 427; 10 Id.
38; 9 Id. 141 ; Story on bills, 359 \ I Ala. Rep. N. S. 565;
3 Ala. Rep. 213 ; 2 Johns. Rep. 205, 327 ;' 7 Id. 385.
COLLIER, C. J. The charge to the jury impliedly ad-
mits the truth of all the evidence adduced, and the inferences
legitimately deducible therefrom, and affirm?, that the plaintiff
is not entitled to redover." It is needless to consider at large
the duties of a notary,- in respect to giving notice to the draw-
er or indorsers of commercial paper, placed in his hands for
demand and protest. We think it clear that he should at least
inform the holder what he has done, with all reasonble dispatch,
if he has not given notice ; and if he undertakes to perform
this service, he must perform it in such manner as not to pre-
judice the holder's rights. In the present case it was shown
to have been the usage in Mobile, for notaries to give notice
to the indorsers of the non-payment of paper, such as that in
question ; further that the defendant did actually attempt to
give such notice. This being the case, he should have given
it in such manner that it would have been effectual in law.
The certification in the protest upon this point is made evi-
dence by statute, yet it is not conclusive ; but it is competent
for an indorser to prove that he could not have received a per-
sonal notice, -because he was elsewhere and had no agent : he
may also show that he had no place of business at which a
notice could have been left, or any other fact which negatives
the recital in the protest.
Even if 'the holder was furnished by the notary with the
papers, so as to have enabled him to have given due notice to
the proper parties, the affirmation of the protest that the in-
dorsers had been notified, showed this to have been unneces-
sary, if true,- And he was authorized to give all credence to
the recital, and look to the notary to repair any injury that
might result from its falsity.
In Stephenson v. Primrose, 8 Porter's Rep. 166, we state,
as a deduction from the authorities, that when an indorser, be-
fore the maturity of the note, obtains an assignment of all the
JUNE TERM, 1S44. in
The Bank of Mobile v. Marston.
maker's estate, or of so much as is necessary to indemnify him
against the consequences of his indorsement, the maker's de-
fault will fix the indorser'sliability, without the previous steps
of a demand and notice. [See also Story on bills, 359.] We
will not stop to inquire, whether the indemnity about which
the witness spoke was ample, or covered all the property of
the makers of the note ; or rather, whether this was not one
of thfe inquiries of fact.that should have been submitted to the
solution of the jury. When the makers of the note showed
it to the indorser, stating that it had been paid, and asking
that the indemnity might be released, the latter might very
well have inferred the truth of the statement from the gosses-
sion of the paper, and complied with their request. Under
such circumstances the holders of the note could not claim as
against the indorser, any benefit from the indemnity, or set it
up as an excuse for th& omission to give notice of non-pay-
ment. And it is not a legal conclusion, from the possession of
the note that the makers had paid it. and again put it in cir-
culation in fraud of the indorser's rights. .
Whether a judgment against Newbold would have resulted
in the collection of 'the amount of the note, is a matter which
could not determine the plaintiff's right to a verdict in the
case at bar. If he was insolvent the plaintiff would be enti-
tled to nominal damages, if the facts established^ a breach of
duty on the part of the defendant; beyond this, the recovery
would have been graduated by th,e loss which the defendant's
neglect occasioned. In estimating which, the solvency of the
indorser would of course be a material inquiry. v
It is unnecessary to consider this case at 'greater length.
The Bank of Mobile v. Huggins, 2 Ala. Rep. 206, lays down
principles, which, if observed, will most probably lead to a
correct' decisibn upon another trial. We have only to add,
that the judgment of the Circuit Court is reversed, and the
cause remanded.
112 ALABAMA.
Woodward, Adm'r, v. Smith.
WOODWARD, ADM'R, v. SMITH.
1. A father sells a tract of land, the title to which is in the name of his son ; the
son, after some conversation, aside, withliis father, makes a conveyance to the
purchaser, who executes notes to the father for the price agreed on. The son,
after these notes are paid, sues his father's administrator to recover the sum thus
received for the tract of land so sold and conveyed : Held that this was no,t a
contract or agreement for the sale of lands within the statute of frauds.
Writ of error to the Circuit Court of Pickens.
i
ASSUMPSIT by Smith against Woodward, as administrator of
Joseph Smith, for money had and received.
It appeared at the trial that Joseph Smith, the defendant's
intestate, in his lifetime, sold to one Owen, three eighty acre
tracts of land, for 18 37-100 dollars per acre. When the con-
veyance of these lands was to be made, the purchaser discov-
ered that the title to one of the tracts was in the name of the
plaintiff, who was, a son of the vendor. The purchaser was
unwilling to accept a deed from the vendor, and insisted on
having one from the plaintiff. After some conversation aside
with his father, the son executed a deed to the purchaser for
this tract of land, and the notes for the entire purchase money
were then executed and delivered by the purchaser to the
father, without any objection on the part of the son ; the father
remarked at the time, that John ought to let him have the
notes, as he had debts to pay, and the main part of all he had
was for his son any how. With a portion of the notes so re-
ceived the father paid his debts ; another portion he collected
in cash ; and the remainder of 600 dollars was paid to his ad-
ministrator. There w^as no note or memorandum in writing
executed by the father to the son, with reference to the land iu
question.
On this state of proof, the defendant asked the Court to in-
struct the jury that they could not find for the plaintiff, unless
there was a promise or agreement, or some memorandum in
writing, binding the defendant's intestate to pay the plaintiff
for the land. This was refused, and the defendant having ex-
cepted, now assigns this refusal as error.
JUNE TERM, 1844. 113
Woodward,' Adm'r, T. Smith.
L CLARK, for the plaintiff in error.
J. B. CLARKE, contra cited Miller v. Irwin, 1 Dev. & Bat.
103; Cody v. Caldwell, 5 Day, 16 ; 9 Mass 510; 2 Ib. 540;
17 Ib. 258; Lewis v. Grimes, 7 J. J. Marsh, 330; 6 Dana,
337; Bliss v. Thompson, 4 Mass. 488.
GOLDTHWAITE, J. We do not se upon what reason
this case can be brought within the statute of frauds as a con-
tract or agreement for the sale of lands. The son at the re-
quest, of the father, conveys land to a third person, to whom
the father had sold at, and consents that he may receive the
notes given for the price. Under these circumstances, there
must have been either a trust on the land for the benefit of the
father or a gift of it by the son ; or the father must have re-
ceived the money on the notes to thfe use of the son. It is
supposed, however that no assumpsit can be raised, inasmuch
as the promise is not in writing ; but in Lamar^ v. Price, 2
Bing. 437, it was held, where au oral bargain for the purchase
of land had been' transferred to a third person, and a convey-
ance afterwards made to his nominee, that he was liable to pay
the sum agreed on, although the original contract, not being in.
writing, could not be enforced. In that case the contract with
the third person was in writing, but this fact is of no impor-
tance, as the contract was executed by the conveyance of the
land to his nominee. In Griffith v. Young, 12 East. 513, a
tenant agreed with his landlady, that if she would accept
another for her tenant in his place, (he being restrained from
assigning the lease without her consent,) he would pay her a
certain sum of money out of a larger sum which he was to re-
ceive ; and it was held he was liable on this agreement, al-
though it was not in writing, the -contract having been exe-
cuted. Indeed we cannot' perceive any sound distinction be-
tween a conveyance to the bargainee of land, and a convey-
ance to one at his nomination ; and we have heretofore held
that assumpsit might be brought when a deed had been exe-
cuted and accepted, although the contract of purchase was oral
only ; and such is the settled law in Kinlock & Lewis v.
Graves, 7 J. J. Marsh 336.
We are informed only of one of the questions before the
15
114 ALABAMA.
Clifto'n, et al. v. Cook.
jury, but they probably inferred a promise to pay as soon, as
the proceeds of the notes given for the land should be realized
We are not authorized to disturb the verdict on the exception
taken. Judgment affirmed. .,
CLIFTON, ET AL. v. COOK.
1. When an election is ordered by the Legislature to ascertain the sense of the
people of the county, as to the site oi' the court house, and an election is had, it
ought not to be disturbed because of some irregularity, or informality in the mode
of holding it, if a majority of- the legal votes are cast in favor of a particular
place, i
Error to the Circuit Court o/ Cherokee.
Petition for a mandamus.
BICE, for the plaintiff in error.
WALKER & "WHITE, contra.
ORMOND, J. We have not considered it necessary to. en-
ter upon the inquiry, whether there may .not have occurred
some slight Irregularity in the election held for the county site,
between the rival places of " Centre" -and.- "Cedar Bluff,"
because it does not appear from the petition that " Centre" has
received a majority of the legal votes of the county. The ob-
jections to the election, are,. that the, returns of. the county pre-
cincts were made to the sheriff instead of being made to the
managers 'of the court house, and were not sealed up, and
that the sheriff appointed the managers at some of the pre-
cincts.
The design of the act under which this election was made
was, to ascertain the sense of the people of the county as to
the location of the county site, and if the, election was fairly
conducted, it ought not to be disturbed because a manager
was appointed by the sheriff instead of the Judge of the County
Court and Commissioners of Roads and Revenue. It is not
alledged in the petition, that the return made by the sheriff
JUNfi TERM, 1844. 115
Land v. Hopkins.
was not authorized by the vote which was cast,, and even if
it were conceded that the reference in the statute, authorizing
this election, was to the mode in which the general State elec-
tions are conducted, and are adoptions of the rules prescribed
for general elections, yet we apprehend that the t?ue question
always in a contested election is, which party has received
the highest number of legal votes. We do not therefore con-
sider it necessary to inquire whether there has not been some
irregularity in the mode of holding the election, nor whether
the petitioners have shown such an interest in the question,
as will authorize them to petition for a mandamus. The mer-
its of the question appear to have been settled in the election
by the people of Cherokee, and no mandamus can issue upon
an objection which relates to form merely.
Let the judgment of the Count/ Court be affirmed.
LAND v, HOPKINS.
1. Not only a perfect, but an Inchoate legal title to lands, may be levied on and
sold under a fieri facias.
2. The defendant in execution was in possession of a lot under a deed executed on
the 1st of April, 1837, by J. C. M., as treasurer of the commissioners appointed
to sell lots in the tdVn of Livingston, with covenant of warranty ; in December,
1838, the defendant in execution bargained and sold the lot, to a third person, to
whom he delivered the possession. In June, 1838, the plaintiff obtained his
judgment on the 5th of August, 1839, the lot in question was sold under a
fieri faciat issued thereon, and in October, 1840, a patent was issued by the
United States to the commissioners, &.C., for the tract of land of which the lot
was a part : Helcb that the judgment operated a lien upon the lot before the
sale by the defendant in execution, and that the vendee of the latter might, be
dispossessed by action at the suit of the purchaser at the sheriff's sale.
Writ of error to the Circuit Court of Snmter.
*
THIS was an action of trespass at tlie suit of .the defendant
in errpr against the plaintiff, brought as well to try titles to a
i lot in the town of Livingston,; particularly described in .the de-
claration, as to recover damages for its occupancy. The de-
H6 ALABAMA.
Land v. Hopkins.
fendant pleaded " not guilty," and issue being joined thereon,
the cause was submitted to a jury, who returned a verdict for
the plaintiff, and judgment was thereupon rendered. . &*
From a bill of exceptions sealed at the instance of the de-
fendant, it appears that the plaintiff read to the jury the record
of a judgment of the Circuit Court of Sumter,. rendered on the
5th of October, 1837, and a certificate of its affirmance by the
Supreme -Court, on the 28th of June, 1 838, in favor of Isaac C.
Snedicor against Cornelius Rain, Wm. Johnson and Cleaveland
Robb. He also gave in evidence several executions issued from
the same Circuit Court, one of which tested of 15th April, 1839,
was levied by the sheriff on. the same day, on- the premises
in question. In virtue of the fieri facias and levy, the premi-
ses were duly sold on the 5th of August, 1839, to the plaintiff,
to whom the sheriff's deed therefor was delivered on the 14th
of the .same month. This deed, together with one to J. C.
McAlpin, as treasurer'of the commissioners, appointed to sell
lots in the town of Livingston, bearing date the 1st day of
April, 1837, with covenant of warranty, to Robb,, also a title
bond from Robb to the defendant, dated the llth of Decem-
ber, 1838 all for the premises in controversy t were read to
the jury. - The defendant was admitted at the institution of
this suit to be in possession of the lots sued for, under the title
bond. It was also proved that the title to the premises never
passed from the United States, until October, 1840, when it
vested in t-he commissioners.
The Court charged the jury that if they believed the facts
set forth to be true, the plaintiff had shown sufficient title to
recover in this action.
L. CLARK, with whom was J. HAIR, for the plaintiff in error,
insisted that Land had not such a title as was the subject of
levy and sale under a fieri facias. [5 Porter's Rep. 327, 433,
249; 1 Johns. Ch. Rep. 55-6 ; 4 Cow. Rep. 601-2; 4 Kent's
Com. 98.]
R. Ft. SMITH, for the defendant, made the following points :
1. That Robb had such a title as was the subject of execution
and sale. The land of which the lot in- dispute is a part, was
reserved from sale by the United States, as a county seat, and 1
JUNRTERM, 1844. 117
t Land v. Hopkins.
the county ha|[ the right of entry. As for McAlpin's deed,
his conveyance of lots as treasurer, by a special act passed in
1840-1, were declared valid. Robb had the color of title, and
that acquired by the commissioners vested in him, in virtue of
this covenant of warranty in McAlpin's deed. This, coupled
with the possession, gave him an interest that was subject to
execution. [9 Cowen Rep. 192; 4 Ala. Rep. 584.]
2. Land cannot set up the outstanding title to defeat the
plaintiff's action. [7 Cow. Rep. 643-4; 3 Id. 89; 2 Caine's
Rep. 216; 14 Johns. Rep. 224 ; 3 Id. 499; 4 Id. 210; 7 Id.
158 ; 6 Wend. Rep. 228 ; 12 Id. 57 ; 9 Cow. Rep. 223 ; Adams
on Eject. 61, note ; 3 Peter's Rep. 48,224 ; 7 Wend. Rep. 401;
6 Wend. Rep. 666 ; 12 Id. 105.]
COLLIER, C. J. In Goodlet v. Smithson, 5 Porter's Rep.
249, we determined, that by the act of entry and payment of
the purchase money, the purchasers of lands from the United
States acquired an inchoate legal title, which is the subject of
levy and sale under execution. And in Rhea, Conner &. Co.
v. Hughes, 1 Ala. Rep. N. S. 219, we held, that the mere pos-
session and improvement of land belonging to the United
States, however valuable, is not the subject of levy under ex-
ecution. But it was there said, that the question, whether the
possession under a contract could be reached by fieri facias,
depended .upon a different principle.
The act of 1#12, " regulating the mode of collecting money
by execution," enacts, that " hereafter, lands, tenements and
hereditaments shall be subject to the payment of all judgments
or decrees, of any Court of record within this Slate, and the
clerk of such Court shall frame the execution accordingly; and
in all cases, the sheriff or other officer levying such execution
on real estate, shall give at least thirty days notice of the time
of such sale, &c."
In Jackson v. Parker, 9 Cow. Rep. 73, it appears that by a
statute of New York, the lands, whements and real estate of
every defendant in a judgment, obtained in a Court of record,
is subject to levy and sale ; the question was, whether one who
was in possession of land under a contract of purchase, had a
real estate in the land within the statute, which was bound by
a judgment of a Court of record. The Court said the term
1_18 ALABAMA,
Land' v. Hopkins.
estate, is very comprehensive, and signifies Ae quantity of
interest which a person has, from absolute ownership, down to
naked possession. Real estate includes eVery possible inter-
est in lands, except a 'tnere chattel interest.' Further the
possession of lands, is an interest which may be sold on an ex-
ecution against the 'possessor (3 Caine's Rep. 189; 16 Johns.
Rep. 192) and in an action against such possessor he cannot
show title in another. The estate whfch is the subject of a
sale on execution must be a legal estate. The Court also
cite Jackson v. Scott, .18 Johns'. Rep. 94 ; in which it was de-
cided, that a person in possession of land, under a contract for
the purqhase and sale of it, has an interest in the land, which
may be sold on execution. [See also, Bogart v. Perry, et al. 1
Johns. Ch. Rep. 52, S. C.; 17 John's. Rep. 351; Jackson v.
Town, 4 Cow. Rep. 602 ; Jackson v. Buttle, 9 Cow. Rep. 233 ;
Jackson v. Hagaman, 1 Wend. 1 Rep. 502. ]
Where, orie claims as a purchaser,' at a sale under execution,
it is only necessary to show 'that there was a legal title sub"
sisting in the defendant at the time the judgment was render-
ed, without producing a regular chain of 'title from the United
States to the purchaser. [Brock, et al. v. Yongue, et ai. 4 Ala.
Rep. 554.]
The' "act of 1820, provides that " no other tha'n the legal title
to land o^ other real estate, shall hereafter be-sold or conveyed
by virtue of any .execution :" .Further" The equitable title
or claim to land, or other -real estate, shall hereafter be liable
to the payment of debts "by suit in Chancery, and not other-
wise, &c." Under this statute it has been held, that the occu-
pant of land 'with an equitable title, cannot* be regarded as
having a distinct and independent possession, which rnay be
levied on, but his possession is so intimately connected with
the title, that it cannot be sold under execution, so as to trans-
fer an interest to the purchaser. [Doe, ex dem. Davis v. Mc-
Kinney & McKinney, 5 Ala. Rep. 719.]
Let this view of. the law^snffice to show the principles ap-
plicable to theVpresent case, so far as'it is necessary to consider
it. Our statute of 1813, is quite as broad in its' .terms as that
of New York, to which we have refe'rred, and but for the limi-
tation prescribed by th6 act of 1820, would authorize a con-
struction quite as enlarged .and liberal. The restriction impbs-
.
JUNE TERM, 1814.
Land v. Hppkine.
ed, applies only where the defendant has a mere equitable
title. Here, Robb, a defendant in .execution, -cannot be re-
garded as between himself and -the plaintiff, as the mere occu-
pant of the government land ; nor can hjs possession be treated
by the .defendant as an occupancy by permission of the United
States. His title, whatever might be its extent, was clearly
legal ; when it was shown that he was in possession under a
deed .professing to convey the fee simple titfe the plaintiff
would not be required to show that the, grantor in that deed
had an interest to convey, nor will the grantee of Robb be
permiUed to show. that the title was in a third person, for the
purpose of defeaiing the plaintiff's actidn. It is unimportant
whether Robb had a'pcrfect legal title or n.ot$ his interest was
a fenement, or estate, either of which might be sold. The act
of 1812, is ejxpress npon this point, audits meaning thus far, is
satisfactorily explained by the case of Jackson v. Parker, ut
supra,
The deed of McAlpin could not be treated as merely void
possession passed to the grantee'therein, and if not obligatory
upon the commissioners, would in virtue' of the covenant of
warranty therein, draw to him such title as McAlpin would
afterwards acquire- and if binding npon the commissioners
would have the same effect upon their after acquired title.
A fieri facias binds the real estate of the debtor from the
rendition of the judgment. [Clay's Dig. 205, 17; Morris v.
Ellis, 3 Ala. Rep. 530.] This being- the case, the sale from
Robb to. the defendant could not have the effect to divest the
lien of the execution under which the plaintiff claims,
The purchaser at a' sale under execution acquires the title of
the defendant at the time of the purchase, unaffected by any
assignment made by him subsequent to the judgment. But,
whether such purchaser could claim the perfection of.his title,
in virtue of covenants in the deed, to the defendant in execu-
tion, where the vendor of the' latter has acquired the out-
standing title, is a question, which as it is not necessary to be
decided, we purposely decline to consider.
It results from what has been said, that the charge of the
Circuit Judge is correct, and the judgment is consequently af-
firmed.
120 ALABAMA.
Lowry's Adm'rs, v. The Western Bank of Georgia.
LOWRY'S ADMR'S, v. THE WESTERN BANK OF
GEORGIA.
1. A note payable at the Western Bank of Georgia is indorsed in Alabama ; the
indorsement is governed by the laws of Alabama, although the note and indorse,
ment were made with the intention that it should be negotiated in Georgia, and
with a view to be performed there.
2. When the liability of an indorser has not been fixed by notice* the fact that he
has taken an indemnity from the makef, after the maturity of the note, will not
have the effect to charge him on the indorsement.
Writ of error to the Circuit Court of Cherokee County.
i > / ' ' , . '
ASSUMPSIT by the Western Bank of Georgia against John
Lowry. as the indorser of a note made by one Bennett, pay-
able at the Western Bank of Georgia. The first count is in
the usual form upon the indorsement, and avers demand of
payment and notice of non-paymenf to the indorser ; the sixth
count is the common one upon an account stated.
The second count- is on the indorsement, and contains no
averment of notice to the 'defendant ; the 'note is described as
made and indorsed in the State of Georgia, and .it is alledged
that by the charter of the Bank, it is enacted that no notice. or
protest shall be necessary to charge any indorser or maker of
any note or obligation due said Bank ; and that no proof of
notice, demand, or protest shall be necessary or required on
any trial io authorize a recovery.
The third and fourth counts have no averment of notice to
the defendant of the non-payment of the note by the maker,
and do not set out any place where the note or indorsement
was made, but aver, that after the maturity of the note, and
after the default of the mlker, the defendant procured him to
execute a deed of trust, conveying property of greater value
than the amount of the note, for indemnification against the
liability on account of said indorsement.
The fifth count has no averment of notice, and states the
indorsement as made in Alabama, but alledges that the note
was made 'and indorsed with a view to its negotiation in
Rome, in Georgia, and to its becoming the property of the
JUNE TERM, 1S44. 121
Lowry's Admr's. v. The Western Bank of (Georgia.
plaintiff by its negotiation at that place, and to be performed
with a view to the laws of Georgia. The charter of the Bank
is set out the same as the second count. The defendant de-
murred to said count of the declaration, and his demurrer be-
ing overruled pleaded to issue.
At the trial the plaintiff gave in evidence two deeds of
trust, executed by Barnett to a trustee, and conveying proper-
ty for th purpose of indemnifying the defendant against his
liability as indorser of the note sued on. The defendant was
a parly signing the deed, and the value of the property con-
veyed by it was in evidence.
The Court charged the jury, that although the indorsement
was made in this State, and there was no proof of demand and
notice to Lowry, yet if he took an indemnity which was full
and sufficient to protect him from loss, that superseded the ne-
cessity of protest, demand and notice, and the plaintiff was en-
titled to recover if such was the fact. That, although Low-
ry's liability was extinguished by a failure on the part of the
Bank to give notice of the non-payment, yet if he took a full
and sufficient indemnity from the maker of the note, it mat-
tered not at what time the indemnity was taken, the liability
was thereby revived, and the plaintiff, in such event entitled
to recover.
The defendant excepted to this charge, and it is now as-
signed as error, as is also the judgment, upon the demurrer
be the four last special counts of the declaration.
HOPKINS & HINTON, for the plaintiffs in error, made the fol-
lowing points :
1. The counts demurred to show no cause of action, and
should have been overruled. [Givans & Herndon v. Western
Bank of Georgia, 3 Ala. Rep. 397 ; Stephenson v. Primrose,
8 Porter, 155.]
2. The Court erred in the charge, as a subsequent indemni-
ty cannot revive a liability once gone. [Chitty on bills, 359,
476; Mechanics' Bank v. Griswold, 7 Wend. 1G5; Bard v.
Farham, 5 Mass. 170 ; Tower v. Durell, 9 Ib. 332 ; Prentiss v.
Danielson, 5 Conn. 175; Stephenson v. Primrose, 8 Porter,
155; Wredman v. Eastman, 10 N. H. 363.]
16
122 ALABAMA. __
Lowry's Admr's, v. The Western Bank of Georgia.
. RICE and WHITE, contra, argued :
1. Contracts are construed and governed by the law of the
place where they are to be performed. [Dunn v. Clement, 2
Ala. Rep. 392 ; Givans v. Western Bank of Georgia, 2 Ib.
397 ; Hanrick v. Andrews, 9 Pprter, 9.]
2. Full indemnity to an indorse! precludes him from urging
that he is not responsible, because of an omission of demand
and notice. [Chilton v. Robbing, 4 Ala. Rep. 224 ; "Bard. v.
Farnham, 5 Mass. 170; 9 Ib. 332.]
GOLDTHWAITE, J. Two principal questions have been
raised in this case. The first is, whether the charter of the
Ban*k can affect the indorsement -made in 'Alabama, so as to
render a demand of payment of the maker, and .notice to the
indorser unnecessary to fix his liability. The other is, wheth-
er a full indemnity taken by an indorser from the maker, sub-
sequent to the dishonor of the note, will have the effect to re-
vive the liability of the latter, whea he is not. charged by no-
tice. We shall consider each in its turn.
1. The counsel for the plaintiff in error do not deny the
general principle, that the indorser is chargeable according to
the law of the place of indorsement, but they insist here, that as
this note was made and indorsed with a view to its negotia-
tion in Georgia, and was to be performed with a view to the
laws of that State, (as averred in the last count of the declara-
tion,) these must prevail, and furnish the rules by which the
liability of the indorser, as well as the maker, is to be ascer-
tained and governed. We think this argument is not sustain-
ed by any principle known to the law. Every indorser of a
bill drawn in this State, upon another, or upon a foreign coun-
try, enters into the contract with a view to the negotiation and
payment of the bill there; but this does not in any manner
bring his indorsement within the influence of laws which are
local to the place where the bill is payable. The averments,
of the intention of the 'parties, which are introduced into this
count of the declaration, are no other, or different from those
which are presumed in every case of indorsement of a nego-
tiable instrument. It may then be considered as if these aver-
ments were entirely omitted ; if such was the form of the
count, the indorsement would be within the precise principle
JUNE TERM, 1S44. 123
Lowry's Admr's, v. The Western Bank of Georgia.
conceded by the counsel, and universally held by all writers
upon commercial law. [Story on bills, 397, 399, 177, n. 2 ;
Chitty on bills* 661, 881.]
2. With respect to the supposed revival pf the indorser's
liability by his acceptance of, or procuring indemnity from the
maker, the principal authorities relied on by the counsel for
the defendant in error, are Bard v. Farnham, 5 Mass. 170;
Tower v. Durell, 9 Ib. 332, and Chilton v. Bobbins, 4 Ala.
Rep. 223. The first and last of these cases are, where the in-
demnity was accepted before the dishonor of the note, and the
principle upon which the decisions are made, is, that the party
accepting the indemnity, is advised beforehand that the paper
will not be paid, and has acted upon that advice so as to fully
Secure himself. The case is entirely changed when the de-
fault has taken place and the indorser has never been fixed by
notice. Then the holder has never looked to the indorser for
payment, nor has he acted upon information, which, in itself
has been held to be equivalent to notice. We know of no
decisions which carry the principle so far as to revive a liabil-
ity which has been discharged, or rather, which never was
fixed in consequence of the laches 'of the holder.
In Tower v. Durell, the other case cited by the defendant's
counsel, it was decided that an indemnity taken by an indor-
ser, under the impression it nad been fixed by notice, was not
sufficient to revive a liability which never irt fact existed. It
is not improbable that in equity the plaintiff in this case might
compel the representatives of the indorser to enforce the in-
demnity received by him for their benefit ; but, however that
may be, we are satisfied that no obligation is created by it for
them to answer for the indorsement, as if their liability had
been fixed by notice.
This conclusion will enable us to decide all the questions
raised on this record. The first count avers demand and no-
tice in the usual form; the second describes the note and in-
dorsement as made in Georgia, and s^ts out the law of that
State which excuses demand and notice; the sixth count is
upon an account stated; all these counts are substantially good;
but the remainder are defective in showing no sufficient
excuse for notice. The demurrers, ought to have been sus-
1*4 ALABAMA
tamed therefore to tho :U, 4th and 5th counts of tlu> declara-
tion,
There was also error in the charge of the Court, which in-
structed the jury that the acceptance of tho indemnity \\.is -^
revival of tho indorsees liability.
For these errors the judgment must be reversed, and the
cause remanded.
KKALL v. DKARING.
t. An atwrtiv* attomp' (^ 'a^* 1 <he Jo|Hv;non ^' * > r*dott, in
sin d*nl w* Usi .known K> he. > >*)ivl*< h> tU>nim) vf tht>
& Where <lesi w> of am-K>nt vlato. i of uoh oluraotcr w\uK< not |t\b*hl
b* prv*^r\v\l * yrv>t K>j;th of iun, hill of M!O }')* Hud no'inKWtllA
o* nw that th> |vrty uj>r\|vi ly withhold* th \WJ, a i%ht fthowitkf of IIW
(viu^ will NP surtu-i^ut to l in tho **v\>miary yktuc.
3, A \x> rtt\-\J ivpv of * r^is(r rwl oWd. which the Uw dow not require to Np r*.
r\vr\)evi, thon^h not -\uioiu-e of the cont^ut* of th deed, wn* pr\>pr to fo to tlw
Court, in tho ca* of a deed thirty vvare old. to *how, prim* /ICNS that Mirk *
deed one* *xi*:rvl ; but taforv the jury, the party w\wld hv to prttv* UM feet
of the execution of the d*ed, * writ a* >ts content*.
4. The exe\'utiott of a lost deHl n\ut bo |>rv\veiJ befvvrv wistnditry evident* can b*
f its contents, hut if it he thirl)- vear* old, its due execution may W pr.
F.rror to tho Circuit Court of Tusealoosa.
TROVKK for a slavo by tho plniutitl' against tho defendant in
error. The plaintiff clanned tho slave under the will of his
father. The defendant claimed under one John S, Devanv
who became possessed of the slave in right of his wife Sarah
Ciarnett. The defendant relied on a deed from Matthew
Beall to Sarah Garnett, convoying tho slave in controversy,
and for the purpose of proving by secondary evidence the con-
tents of the doed, which was alledgod to be lost, offered the
following preliminary proofs :
The deposition of Mrs, Devan, her husband being dead,
JUNE TERM, 1844. 125
Beall r. Dearing.
which had been taken in the Territory of Florida, by interrog :
atories, at the instance of the defendant. The interrogatories
propounded by the defendants related solely to the former ex-
istence and loss of the. deed or bill of sale. The cross inter- .
rogatories related not only to the existence and Joss of the bill
of sale, but proposed a .series of interrogatories to the witness
upon the merits of the plaintiff's case.
The witness answered the first interrogatory, in substance,
that the deed once existed, but was now, as she. Supposed, lost;
and refused to answer the remaining interrogatories and cross
interrogatories. To the reading of this deposition the plaintiff
objected, because the cross interrogatories were not answered ;
but the Court permitted it to be read, and the plaintiff excepted.
The defendant also pr6duced to the Court a certified trans-
cript from the clerk's office of Washington County Court, of
what purported to be a deed from Nathaniel Beall, the Sur-
veyor General,, dated 9th June, 1810, for a number of negroes,
including the one in controversy, which appears to have been
recorded on the llth of April, 1815.
The defendant himself made oath before the Court, that De-
van, the husbapd of Sarah Garnett, had, as he understood, died
about ten years ago in or about Mobile, as he understood in-
solvent ; and that he had never heard of any administration on
his estate : that he knew nothing of the original deed and
had inquired of one Lyon, and another, who were understood
to know something of it, but could learn nothing about it
That he had at great expense, sent on an agent to Florida, to
procure the deed, if possible, or some evidence of it, who re-
turned without giving any other account than that contained
in Mrs. Devafl's deposition. That he had heard of DO other
person from whom he could obtain information of the deed.
This being, all the (testimony the plaintiff objected to the same
as sufficient to let in secondary evidence of the contents of
the deed, but the Court overruled the objection, and the plain-
tiff excepted.
The defendant then read the deposition of John Phillips, who
among other things deposed, that about the year 1810, Nathan-
iel Beall sold all or most of his slaves to Sarah Garnett that
Beall handed him the bill of sale and requested him to take
her notes for the purchase money that he took her notes and
12G ALABAMA.
Beall v Dearing.
delivered them to Beall, and delivered the slaves to Sarah Gar-
nett; among these slaves was the one in controversy. The
plaintiff .objected to this evidence to prove the contents of the
deed, but the Court overruled the objection upon the ground
that the jury must determine whether the contents of the deed
were proved or not, to which the plaintiff 'excepted.
These several matters are now assigned for error.
PECK & CLARK, for plaintiff in error. The deposition was
improperly admitted, because the cross interrogatories were
not answered. [1 M. & S. 4, 6 ; Greenleaf 's Ev. 590 554 ;
Starkie Ev. 271, 103 ; 1 Phillips Ev. 278.]
The execution of the deed should have been proved by the
subscribing witnesses, and the case is not varied because the
deed is alledged to be lost. [16 Johns. 193; 1 Phillips, 452.]
The preliminary testimony was not sufficient to authorize
proof of the contents of. the deed.
CRABB and P. MARTIN, contra. Contended that this case
was in all respects like the case of Mordecai v. Beall, 8th Por-
ter, 529, and relied upon that case as in point.
ORMOND, J. The question presented on the record and
argued by the counsel, is, whether the preliminary evidence
offered of the existence and loss of the deed, was sufficient to
let in secondary evidence of its contents.
The principal question which has been argued was upon the
admissibility of the deposition of Mrs. Devan^to prove the loss
of the deed. The question whether the deposition could be
read as testimony for any purpose, after she had declined to
answer the cross interrogatories, some of whjch were certain-
ly proper, and should have been answered, is not one of diffi-
cult solution ; but I shall decline the consideration of the ques-
tion, because it is not necessary to be determined. Conceding
that the deposition could not be read as evidence, the abortive
attempt to take it, is certainly equivalent to a demand of the
deed from the person in whose possession it was last known, to
be ; which when the deed was in possession of a non resident,
was held by this Court to be sufficient, in the case of Mordecai
v. Beall, Sth Porter, 529, and.Swift v. Fitzhugh, 9th Porter,
39.
JUNE TERM, 1844. 127
Beall v. Dear ing.
The question for the Court to determine was, whether the
facts adduced raised the presumption that the deed once exist-
ed, and was now lost, or out of the power of the party to pro-
duce without fault on his part.
It has been frequently remarked by this and other Courts,
that no general rule can be laid down on this sqbject, but that
each case must in a great degree depend upon its oVvn circum-
stances. In this case the deed was of very ancient date, being
more than thirty years old at the time of the trial it had nev-
er been in possession of the defendant, nor was it a muniment
of his title, as it conveyed to his grantor maqy other slaves be-
sides the one he purchased, and which purchase was made not
from the grantor in the deed, but at sheriff's sale. In addition,
the deed itself, a bill of sale of slaves, was not an instrument
which would probably be preserved such a length of time, as
a possession of less than one fourth of that period would be as
good evidence of title, as would be afforded by the deed. No
inference can arise that the defendant improperly withheld the
deed, and altogether the facts present such a case as would re-
qiiire but a slight showing on the part of the defendant to let
in the secondary evidence.
The evidence adduced, consisted of the oath of the defend-
ant, denying all knowledge of the deed and that he had made
inquiry of such persons as were supposed to have knowledge
of it. That Devan who had married the grantee, died ins
solvent, and that he did not know that any one had ever ad-
ministered on his estate ; and finally, that he had sent to 1 Flo-
rida, where Mrs. Devan resided, and made an ineffectual effort
to take her deposition to establish the existence, loss, and con-
tents of the deed. I consider this diligence quite sufficient to
show that a proper search was made for the orginal, nor can
I conceive what more could be required.
That the deed once existed, is conclusively established by
the testimony of Phillips, though it does not appear that his tes-
timony was offered to the Court in the first instance,^>ut sub-
sequently to the jury to prove the contents of the deed. The
transcript from the records of Washington County Court, pur-
porting to be a copy of the deed, is certainly not evidence of
the contents of the deed, as there is no law requiring such an
instrument to be recorded ; but, in my opinion, under the cir-
128 ALABAMA.
Beall v. Dearing.
cumstances of this case, it was sufficient evidence of the fact,
that' such a deed once existed, at least to permit the party to
go- before the jury, to the satisfaction of which he would be
required to prove as well the execution of the deed, as its con-
tents.
It is objected also that the subscribing witnesses should have
been called. It is doubtless true that the execution of an ab-
sent, or lost deed, must be proved in the same manner as if the
deed was present, unless probably in a case where the deed is
withheld by the opposite party : but if this deed had been
produced, being more than thirty years old, it would have
proved itself, and certainly the rule cannot be more stringent
in this case, where the party relying on the deed never had,
and was not entitled to the possession of it.
If, however, the evidence which it appears was offered to
the Court in the first instance, and upon which it acted, was
insufficient, it would be impossible lor this Court to cjose its
eyes to the fact, that evidence was subsequently offered to the
jury establishing, beyond doubt, the execution of the deed,
and the propriety of the judgment of the Court, and which in-
deed is not binding upon the jury, as tfcey must'finally pass
upon the execution of the deed if that is contested.
Upon the whole, I feel thoroughly convinced that the proof
was ample, at least prima facie, that the deed once existed ;
and that if not lost, it was not in the power of the defendant
to- produde it. If I could bring myself to entertain a doubt
upon it, sitting as I 4o. from the incompetency of my col-
leagues, alone, I would give the plaintiff the benefit of it by
causing two of the Circuit Judges to be summoned.
The question as to the sufficiency of the evidence to prove
the contents of the deed was properly left to the jury. Let
,the judgment be affirmed.
NOTE In this case Judges COLLIER and GOLDTHWAITE w^re incompetent to set.
JUNE TERM, 1844. 129
Bates v. Terrell.
BATES v. TERRELL.
1. B. being sued upon a promissory note, pleaded non aaumpit, want of oonside-
ration, &c. ; upon the trial of the cause he offered in evidence a bond executed
by the payee, conditioned to make tkle to a tract of land, and proposed to show
that the note was given for the payment of part of the purchase money, and,
that although, the condition of the bond did not recite its date truly, yet it was
the same note, to which the condition referred : Held that the bond should be
permitted to go in evidence to the jury. ,
2. Quere? Where notice is given to a party to produce the certificate of the re-
ceiver of the' land office, showing the purchase of a tract of land, and he produ-
ces *pa(ent-for the same land issued six years before the trial, will it be intend-
ed that the party has ceased to be the custodian of the certificate, so as not to
authorize the admission of parol evidence t>f its contents.
3. In an action upon a promissory note, which has been transferred by delivery,
if the nominal plaintiff die, the suit progresses in the name of the real plaintiff,
who is liable for costs ; and a distributee of the estate of the deceased is a com-
petent witness for the plaintiff.
4. Where <here is a valid contract in writing, if the purchaser of land is in posses-
' sion, he cannot resist the payment of purchase money by showing that the ven-
dor has no title-; but if the vendor's contract is void by the statute of frauds, the
vendee may avoid the paymeht of the money agreed to be paid, although he has
given his promissory note for the amount.
Writ of error to the Clerk of the County Court of Sumter.
THIS was an action of assumpsit at the suit of the defendant
in error against the plaintiff, on a promissory 'note, dated the
llth of August, IS36, for the payment of -seven hundred dol-
lars on the first day of January, 1838v The defendant plead-
ed non assumpsit) want of consideration, and failure of con-
sideration ; and on these pleas issues were joined and the
cause tried by a jury, who returned a verdict for the plaintiff,
for the amount of the hole and interest) and judgment was
rendered accordingly.
On the trial the defendant excepted ta the ruling of the
Court. The following questions arise upmi the bill of excep-
tions : 1. The defendant offered to read to the jury upon due
proof of its execution, a bond executed by the nominal plain-
tiff, bearing date the 9th of August, 1836. The condition of
17
130 ALABAMA.
Bates v. Terrell.
which recited that the latter had bargained and sold to the for-
mer-, a tract of land situate in Sumter county ; for which the
defendant had given two promissory notes, the one payable
on the first of December,' IS36, and the other on the first of
January, 183S each for the sum of seven hundred dollars.
It was stipulated that the bond should be void, if- the plaintiff
made a good and legal title on the payment of these notes to
the defendant. The Court decided that the bond was not ad-
missible, until the defendant showed that the note in question
was one of those to which its^condition referred. It was then
rsmarked by the defendant that he expected to identify the
note sued on, and establish its consideration by the bond,
and other testimony which he intended to adduce. But the
Court ruled that the no'te was not correctly described as to date
in the condition, and should not be read, until the defendant
showed by other testimony, the identity of the note. .
2. The plaintiff had given .notice to the defendant, to pro-
duce the certificate of- the receiver in a land office, for "a cer-
tain piece of land, which it was proved was in the defendant's
possession some years ago. "The defendant produced a patent
from the General Land Office for the land, da-ted six years be-
.fore the notice was given to produce the certificate. Tfie
Court ruled 'that the production of the patent did not excuse
the defendant for not producing the certificate, and that the
plaintiff, although slie had made no other effort to obtain the
certificate or a copy, might prove its contents by parok
3. The plaintiff called a witness who stated on his voire
dire that the nominal plaintiff was dead, that he was one of
her heirs, that the note was transferred by his mother to a
third person by delivery,' and by that person to the real plain-
tiff: that he (witness) had no interest in the event of the suit.
The defendant objected that the witness was incompetent, on
the ground of interest,' but he was, not withstanding, permitted
to testify.
4. The defendaiit then offered evidence, tending to show
that the note in smt was "given in consideration of a verbal
sale of land ; .and the plaintiff introduced proof to show that
the contract was in writing. There' was a conflict in the ev-
idence, as to whether Bates ever was in possession of the
laad under his contract with the plaintiff, and there was no
JUNE TERM, 1844.
Bates v. Terrell.
testimony showing that he or any one else for him had made
valuable improvements -thereon. The proof was also contra-
dictory, whether the defendant was to receive a title from the
nominal plaintiff, or from a 'third person.
The .Court charged the jury, that if they believed there was
a verbal contract for the sale of the land, between the nom-
inal plaintiff and the defendant, for which the note sued on
was given, and the vendee has had possession and made val-
uable improvements, the vendor could, be compelled in equity
to convey; and consequently the plaintiff may recover in this
action.
The Court further charged the jury, that if the contract for
the sale of the land was-verbal, and it was agreed that a third
person should make the defendant a. title, the plaintiff might
recover if tha- defendant took possession and made valuable
improvements, although the title had not been made.
Several' charges were prayed "and refused, .which* it will
be unnecessary to notice, as .they present the questions arising
on the instructions given. .
R. H. SMITH, for the plaintiff in error* The charge as to
valuable improvements by Batesj were uncalled for by the
proof, and well calculated to mislead the jury. In respect to
the verbal contract, possession under it did not of itself impart
to it validity. . [Johnson v. Hanson, 6 Ala, Rep. 351.] The
bond was admissible evidence, and should not have been ex-
cluded. [8 Porter's Rep. 547; Bell v. RJiea, Conner & Co.
1 Ala; Rep. N. S..8a; 3 Id. 16 ? 371.]
The contents of the receipt for the purchase of land should
not have been proved, as there was certainly better, evidence
obtainable to the point than the recollection of witnesses.
HAIR & ftoiT, for the defendants.
COLLIER, C. J. The distinction between the admissibili-
ty and sufficiency of evidence has been repeatedly recognued
by us; and where evidence tends to establish some material
fact put in issue by the pleadings, it is prima facie competent.
It frequently happens that a party can only make out his case
by proving several distinct facts, either of which would be in-
sufficient to lead the mind to a conclusion. In such case, all
ALABAMA.
Bates T. Trre!L
tint should be required, is to show the ^pertinency of the
proof. That the rime of the Court may tmt be uselessly em-
ployed, or the adverse party prejudiced by the introduction of
testimony not calculated to promote a proper determination of
of the cause, the party offering evidence may be required to
state for what purpose it is adduced, aud to. say whether he
intends to offer other proof in Connection with it. It is said,
" if evidence be irrelevant at the time it is adduced, it is not
error to reject it, because other evidence may afterwards be
given in connection with which it would be competent. If it
would be relevant iu conjunction with other facts, it should be
proposed in connection with those facts, and an offer to follow
the evidence proposed, with proof of those facts at a proper
time." [Mardis' Admr y s, v. Shackleford, 4 Ala. Rep. 493 ;
Duffee v. Pennington, } Ala. Rep. N. S. 506 ; Bell v. Rhea,
Conner & Co., Id. S3,; Harrell v. Floyd and^ife, 3 Id. 16;
Williams V. Haney, Id. 317.]
Conceding that the bond per se was prime facie irrelevant,
and if it was offered alone might have been rejected ; yet we
think it was clearly competent when aided by other proof to
identify the note in question, and establish its consideration.
The fact that the note and bond do not bear date of the same
day, is an unimportant discrepancy which might be explained
by proof. A date was not at all essential to either; and though
eack of them have one, it is allowable to show that they are
erroneously dated, and 'were perfected by delivery on a day
different from that they respectively indicated. . The defend-
ant announced his intention to offer the' necessary assistant
proof; this according to the law as we have stated it, should
have induced the admission of the bond. If the defendant
failed in adducing such proof, then the Court might have di-
rected the bond to have been withdrawn, or have instructed- the
jury as to the effect they should accord to it.
Where notice is given to a party to produce a writing, it
must be shown that it is in his possession, or power, before it
can be said that he is in fault for not producing it, so as to ad-
mit secondary evidence of its contents. But possession is fre-
quently presumed from the return of the paper, as well as
other circumstances indicative of the place of its custody. A
party cannot, by subsequentjy transferring the custody of a
JUNE TERM, 1844. 133
Bates T. Terrell.
paper to another persohj defeat the operation of the notice to
produce it ; and if the party in good faith lets the paper go
out of his hands after notice, he ought to apprise his adversary,
so that he may know where t& find it.
Where the party giving the notice, makes out a prima facie
possession against him whd is required to produce a* paper,
the latter it is said may be sworn to prove the contrary. [3
Phil. Ev. C. & H.'s notes, 11S7, and cases there cited. See
also Hammond v. Hopping, 13 Wend. Rep. 505.] The view
which we take of this case, makes it tmnecessary to determine
whether the defendant's possession when notice was given,
is inferable from the fact, that he had the certificate at some
previous time ; or whether that inference was not repelled by
the production of the patent for the same land, dated some
six years previous to the notice/. The decision of this point
may depend upon the fact, whether the certificate is usilally
returned to the land 'office where the patent is received as well
as other extrinsic matters, about which the bill of exceptions
is silent. In this condition of the record, we prefer laying
down the principles which will most probably lead to a cor-
rect decision on another trial, without attempting to give to
them a particular application.
We would remark, that although it may be possible the
certificate may have been material evidence for the plaintiff
for some purpose, its materiality is not shown by the bill of
exceptions. And if important for the plaintiff, it may be/ wor-
thy of inquiry, whether a copy may not be obtained from the
land office; and if it can, whether parol evidence of its con-
tents is admissible?
The objection to the son of the nomina} plaintiff as a wit-
ness, was not well (aken. He had no interest in the event of
the suit. His distributive share of his mother's estate would
not be increased or diminished by the result. Under our
statute, the action abated as to her, and was continued m the
name of the real plaintiff, who was made liable to a judgment
for costs if unsuccessful. It is not known that the transfer of
the note was made by her under such circumstances as would
make her estate liable for its payment; and the interest of the
witness cannot consequently be assumed.
The charge of the County Judge in which the jury were
134 ALABAMA.
Bates v. Terrell.
instructed hypothetically, as to the effect. of valuable improve-
ments by the vendor, to take the case of a verbal contract for the
sale of lands put of- the statnte of frauds, was uncalled for by,
the proof; and consequently cguldsubserve no valuable purpose.
Its effect may have been to mislead the jury by diverting their
minds from the facts proved. Be this as it may, it should not
have been given.
In Johnson v. Hanson, at the last term, we decided that
the vendor of land could not maintain an action upon a ver-
bal contract for the purchase money, although the vendee is
in possession, and has already made a paHial payment. The
difference between that case and the present is, that there, no
note was given for the purchase money, but the vendee vva.s in
possession and had paid part of it ; here-, it is doubtful from the
bill of exceptions whether he had ever had the possession, and
it does not inform us that he had paid any thing. Assuming
the facts of both cases as to.th'e possession and payment to be
identical, and the plaintiff is not placed in a more favorable po-
sition because he has the defendant's note. A promissory note
does hot state the terms of the contract of purchase, nqr is it a
memorandum from which it may be inferred. It is nothing
more than a promise to pay money, for which the law implies
a valuable consideration. But this implication is not conclu-
sive, and it is permissible for the maker to show that it was
given without, or for a consideration that has failed, or under
such circumstances that the -law will not coerce its payment.
This may be done by showing that the undertaking of the
payee which induced the maker's promise, is void and cannot
be enforced. Now a verbal contract for the sale of lands is
declared void by the .statute of frauds, and we have seen that
possession, even when coupled with part payment will not im-
part to it validity.
We have repeatedly held, that where there is a valid con-
tract in writing for the sale of land, the purchaser cannot re-
sist the payment of the purchase money, if he is in posses-
sion, by showing that his vendor has no title, The distinction
between that case and one like the present is this : there the
contract is valid according to legal forms, and the purchaser
if evicted, has his remedy against the vendor. He affirms the
contract on his part by retaining possession, and is thus
JUNE TERM, 1844. 135
Davis v. Hunter.
estopped from showing the invalidity of the seller tt> perform it.
The law allows the purchaser, upon putting the vendor in de-
fault for the non-performance of his contract, to rescind and
place himself in a position by which he can resist the pay-
ment.
But a contract for the sale of lands which is not evidenced
by writing, is merely void ; the performance of which the
vendor cannot enforce ; or even recover damages for its
broach. The retention of possession in such case cannot
estop him; for* their is no valid contract to 'cause such an act
thus to operate. Under such circumstances it is competent for
the vendee to show that the consideration for his promise was
an undertaking on the part of the vendor, which imposed no
legal obligation.
It sufficiently appears from what has been said, that the
County Court did not correctly apply the law ; and without
recapitulating, we will merely add, its judgment is reversed
and the cause remanded.
. DAVIS v. HUNTER.
1. When struck jury is demanded by either party, thte list of jurors from which the
the striking is to be made must be subject to no good cause of challenge.
2. A bias or prejudice against crime in general, is not such as will constitute a good
challenge for cause.
3. After o juror states that he is not sensible of any bias or prejudice in the case, it
is not erroneous to refuse a further examination/)! the juror.
*
'Writ of error to the Circuit Court of Dallas.
TRESPASS by Hunter against Davis, for killing a slave. '
At the trial the defendant claimed a struck jury under the
statute. [Clay's Dig. 459, 52.] Accordingly a list of tvrenty-
four jurors, then in attendance on the Court, was furnished to
each of the parties. When their lists were furnished the plain-
tiff claimed the right to purge the pannel for cause, by asking
136 ALABAMA.
Davis v. Hunter.
the questions contained in section 3S, page 457, Clay's Digest.
This was allowed, and the plaintiff exce'pted.
One of the jurors named in the lists, was so examined before
the plaintiff was required to strike according, to the act. On
this examination, he answered, that he had formed and ex-
pressed an opinion in this case ; and was one of the jurors who
sat on the defendant's trial, when prosecuted criminally for-
killing the^slave. This juror was set aside for cause, and an-
other placed on the list.
Afterwards, the defendant, without waiving his exceptions,
.proceeded to" examine jurors named in the lists in a similar
way, and some were rejected by the Court on his motion.
One of the jurors so examined, said, he felt that he had some
bias and prejudice in cases of this kind. He had heard a good
time since, from rumor, that the plaintiff's overseer,, (the de-
fendant,) had killed one of his slaves, and that he was to be
tried for it,; but he stated that he knew nothing of the facts
and circumstances of the case, and felt no more bias in this,
than in suits of a similar character. The defendant's counsel
proposed to ask this juror, whether, if the-facts should turn out
as he had heard them related, his bias and prejudice was such
that he felt he could not do the defendant- justice. This the
Court refused.
Another juror was examined, and in addition to the same
questions proposed to be asked the former juror, it was propos-
ed by the defendant to a.k this one whether his bias and pre-
judice was not such as .would induce him to look unfavorably
upon circumstantial evidence, and extenuating circumstances
in defendant's favor. This was also refused by the Court.
The Court refused to exclude .the jurors above named for
cause, and they were put upon the parties. The defendant
excepted to the ruling of the Court, in these several matters,
as he did^ilst) to the charge of the Court upon the merits; but
the latter not being urged at the argument, is unnecessary to
be stated. The error relied upon t,o reverse the judgment is
the ruling of the Court in relation to the formation of the jury.
EDWARDS, for the plaintiff in error, cited Clay's Dig. 459,
52 ? 457, 38; 4 Wend. 22&; Bac. Ab. Jurors E.; 2 S. & P.
308.
EVANS, contra.
JUNE T&RM, 1344. 137
Davia v. Hunter.
GOLDTHWAITE, J. the questions raised in this case
involve to some degree the construction of the 38ih and 52d
sections of the chapter of. the- Criminal Code relating to grand
and petit jurors. The first of these provides, that in civil cases
the Court shall on motion of either party, examine, on oath,
any person who is called as a juror therein, to know whether
he is related to either party, or has any interest in the cause,
or has expressed or formed any opinion, or is sensible of any
bias or prejudice therein; and the party objecting to Ihe juror
may introduce any competent evidence in support of the ob-
jection; and if it shall appear to the Court, that the juror does
not stand indifferent in the cause, another shall be called and
placed in his stead, .for the trial of the cause. The other di-
rects that in all such oases, sounding in damages merely, or
where the amount in controversy shall exceed one hundred
dollars, either party at his election, shall be furnishedwith a
list of twenty-four jurors in attendance o such Court; from
which a jury t shall be obtained, by the parties alternately
striking one from the list, until twelve shall be stricken off the
plaintiff commencing: and the jury thus obtained shall not
be further challenged for any cause. [Clay's Dig. 457, 33 ;
459, 52.] -The defendant complains that the plaintiff was
permitted to challenge several jurors for cause, previous to
commencing the striking. This we think was proper enough,
for it certainly cannot be supposed that he is obliged to submit
his case to a prejudiced jury, because the other party has
thought proper to demand the privilege of having one struck.
The list of jurors from which the striking is to be made, must
be compose'd of individuals who are not subject to any of the
exceptions mentioned in the previous section.
2. The jurors whom the Court refused to exclude for cause,
do not appear to have had that species of bias or prejudice,
which would render them incompetent. If an opinion against
violence and .crime in general, was to be considered a preju-
dice sufficient to exclude a, juror, it would be very difficult ta
procure a jury in any case; and here, what the individual
spoke of, cannot, by any ingenuity, be made more of, than, that
he had only the same bias in this suit than he had in all others
of a similar -nature. - In our opinion this was no good cause
of challenge.
18
138 ALABAMA.
Kemp & Buckey v. Porter.
3. After the juror had stated that he was sensible of no bias or
prejudice in the cause, it was not proper for the Court to allow
any further examination of the juror on that subject. If it was
conceded that the answer, to~ the question disallowed by the
Court, would have been in the affirmative, it would, in our
opinion, have furnished no ground for the exclusion of the
juror. ,
We -can perceive no error in the points, to which our atten-
tion has been directed, and the judgment is therefore affirmed.
KEMP & BUCKEY v. PORTER.
i . *
1. Where a levy is made on slaves and bond given to try the right by one claiming
them, a subsequent junior execution cannot be levied on the same slaves, al-
though they are left by the claimant with the defendant in execution.
2. The deputy clerk may take the probate of a deed in the absence of his princi-
pal
3 The consent of a beneficiary of a trust deed will not be presumed, where the
deed postpones the payment of the secured debt beyond the time when it fell
due .by the contract of the parties.
) '
Error to the Circuit Court of Autauga.
THIS, was a suggestion by the 'plaintiffs in error that the de-
fendant, sheriff of Benton county, could by due diligence,
have made the money on an execution of the plaintiffs
against Edward Herndon and W. C. -Kelly, and having made
out aprimafacie case, rested.
The sheriff then proved that four other executions which
issued on judgments older than th at of the plaintiffs, came to
the hands of his predecessor in office, and were levied by him
on the same property this execution was levied on that be-
fore the return day of the first execution, one Jesse G. Cobb,
as the trustee of one Givens, interposed a claim to the slaves
levied on, and that bond was given for the trial of the right,
which is still pending in the Circuit Court of Benton.
JUNE TERM, 1844. 13$
Kemp & Buckey v. Porter.
The sheriff also proved that he made the levy on plaintiffs
execution by request of their attorney, who instructed him if
he could find no other property, to levy on such as had been
levied on before. Upon the execution being returned a ven-
ditioni exponas was issued and sent to him to sell the property
so levied on, and also a pluries fi. "fa. the execution of which
was arrested by" an injunction out of Chancery.
The defendant also offered to read a deed executed by the
defendant in execution, to J. G. Cobb, trustee for W. T. Giv-
ens, by which the property levied on was, before that time
conveyed to secure the payment ,of certain debts due from
Herndon, the probate of which was in the usual form, but ta-
ken by the deputy clerk. The plaintiffs objected to the read-
ing of the deed, because it 'had not been truly probated, and
because the assent of Givens to the deed was not -shown.
The Court was of opinion that the probate was insufficient,
but refused to -exclude' tha deed from the jury, and also over-
ruled the objection of the want of assent by Givens.
t The Court charged the jury, .that if the property levied on
by the plaintiffs execution, had been previously levied op by
executions of older date, and claims interposed to try the right
of property, which were still pending, the sheriff could not be
charged in this proceeding. .
That in regard to the levy .on land by all the executions, if
the first four were issued on judgments older than the plain-
tiffs, they were first to be satisfied ; and the sheriff was not
liable to the plaintiffs, unless the land was of value sufficient
more than to satisfy the older judgments.
That if the vendilioni, exponas had been enjoined before
the return day, the sheriff was not liable for not selling.
The counsel for the plaintiffs moved the Court to instruct the
jury, that if after the levy by Price and the claim interposed by
Cobb, the property did not remain in the possession of Price
or Cobb, but was left in the possession of Herndon, that then
the levy by Price was not a bar to the plaintiffs execution on
the same property, though the proceedings were still pending
upon the claims which instruction the Court refused to give,
and the plaintiffs excepted.
These matters are now assigned for error.
.140 ALABAMA.
Kemp. &, Buekey v. Porter.
PRYOR, for the .plaintiffs in errpr, cited, 1 M. & S. 711 ; 14
Mass. 190, 217; 352; 11 Pick. 519; 13 Mass. 114; 7 Cow.
271; 8 B. & C. 5S9; 4 D. & E. 621; 10 Mass. 125; 1C Id.
465; 12 Id. 495.
' "i,\*.
ORMOND, J. In this case an opinion ,\vas announced ad-
verse to the plaintiffs in error at the last term of this Court, and
upon their petition the cause has been again reheard. Dur-
ing the period that the cause has been under consideration,
the case pf Langdon & Co. v. Brumby, has been determined.
It was there held that the levy of an execution arid bond given
to try the right of property under the statute, exempted .the
properly so levied on from another levy, at the instance of a
junior execution creditor. .
This we understand to be the predicament of this case.
Four executions senior to that of the plaintiffs in error, and
issued on judgments adrru'tted to be older than their's, against
the same defendant ih execution, came to the hands of Price,
the predecessor of the defendant in error, and were by him
levied on the same property subsequently levied on by the
defendant in error, by the direction of the plaintiffs attorney,
previous to which levy, the slaves so levied on had been claim-
ed by one Cobb, as his property, and bond given to try the
right of property against the plaintiffs in the four first execu-
tions, which trials were still pending, down to the trial of this
cause. The levy thus made was fruitless, upon the authority
of the case cited, as to the slaves levied on in both executions,
as in their condition they j were not subject to levy by the
plaintiffs execution.
It is however strenuously insisted, that as the claimant per-
mitted the. slaves to remain in the possession of the defendant
in execution, after the claim was interposed, the property be-
came subject to seizure by a subsequent judgment creditor.
We are of the opinion that the fact, merely, that the claimant
permitted the property .to remain in the possession' of the
debtor, does not authorize the sale of properly so circumstanc-
ed by a junior judgment creditor. When the .claim is inter-
posed the property is in the custody of the law, and the pos-
session of the defendant in execution, is that of .a bailiff mere-
ly. This point was thus ruled in Rives & Owen, v. Welborn,
JUNE TERM, r844. HI
Kemp & Buckey v. Porter.
6 Ala. Rep. 45, the facts of which as to this point, are pre-
cisely analogous to this case.
It is unnecessary to consider the question arising under the
injunction from Chancery, forbidding the sheriff from selling
under the venditioni expunas, as it is only insisted that the
default of the sheriff arose under the previous alias fi.-fa. the
effect of which we have considered.
We understand the question upon the -probate of the deed
to be, not whether the probate -in the clerk's office 'was suffi-
cient to authorize the deed to be read without further proof,
but whether the probate was sufficient to justify its registra-
tion jn ihe office. The objection urged is, that the probate
was taken by the deputy instead of the principal clerk. By the
act of 1836, (Clay's Digest, 146, 19,) the deputy clerk is au-
thorized ta do all acts in the absence of the principal clerk
which the principal could do were he present. This is con-
clusive of the question as we must presume, until the contrary
is shown, that the principal was absent, and that the deputy
was therefore authorized to act.
This Court as well as- others has repeatedly held, that the
assent of the beneficiary of a deed to its provisions will be
presumed until the contrary is shown. This presumption is
founded on the benefit which the grantee derives from the
deed, and ceases when it imposes onerous conditions as the
price of the benefit conferred. " In Elmes v. Sutherland, at the
present term, it was held, that where a deed conveyed pro-
perty in payment, of a debt, but postponed the tima of pay-
ment to a period beyond the time when the debt was due, and
also stipulated for the enjoyment by the grantor of the pro-
property conveyed during such period, that the assent of the
beneficiary would not be presumed. Such is the condition of
this deed. It is made to secure the payment of twenty-one
thousand dollars stated in the deed, to be due on promissory
notes, all of which it appears from the" deed were due at the
time of its execution, (the 20th April, 1340,) yet the deed pro-
vides that the property which is conveyed in trust for the pay-
ment of the debt, shall be retained by the grantor until the
25th of December, 1843, and shall not be soFd for the payment
of the debt until after that period. This deed is not there-
fore necessarily beneficial to the grantee or beneficiary, and
142 ALABAMA.
Stover v. Harrington, et a).
his assent to it must be shown;, to prevent the property con-
veyed by it, from being subject to the claims of other credit-
ors. In ruling that the assent of Givens the- beneficiary was
not necessary, the Court erred.
The counsel for the plaintiffs in error has submitted an ar-
gument, that the sheriff was guilty of a default in not selling
the lands levied on. This was a levy on some town lots in
the town of Jacksonville, which were levied on, both in vir-
tue of the four senior executions, and that of the plaintiffs in
error. Whether these lots were subject to sale'or not, appears
to depend on another question, whether the deed first spoken
of in which they are conveyed, is! valid as against the plain-
tiffs. The deed bears date anterior to'any of the judgments,
and conveys the legal title. to another, and if the deed is ope-
rative under our statute, the equitable interest of the grantor
could not be sold. Other suppositions might be indulged in,
but it iS'Unneeessary to discuss questions not necessary to the
decision of the case, and which may tiot again be presented.
Let the judgment be reversed and the cause remanded.
STOVER v. HERRINGTON, ET AL.
1. Where a mortgage states, the debt intended to be secured, at an amount greatly
beyond what is due, this at most is prima facie evidence of fraud, arid may be
repelled by showing the fairness of intention on the part of the mortgagee.
2. A mortgagee by purchasing a part of the mortgaged property in payment of a
debt not secured, does not prejudice his mortgage as to the remainder.
3. Where a mortgagee who was a surety for the payment of the debt, against which
the mortgage was intended'to indemnify him, executed as the surety of the mort-
gagor, a bond for the prosecution of a writ of error, sued out by the latter, to
cause to be revised a several judgment rendered against him, upon one of the
debts provided for, the mortgagee will not thereby defeat the mortgage, or in any
manner affect its validity.
4. Where the principal executes a mortgage for the indemnity of his surety, and a
judgment is afterwards rendered against the principal. and surety for the debt
intended to be secured, but before such judgment is obtained, other judgments
i JUNE TERM, 1844. 143
Stover v. Herringto'n, et al.
are rendered and executions issued, so as to create a lien upon the principal'a
properly, the surety cannot in virtue of the lien of his mortgage, give a prefer,
ence to an execution of the plaintiff in the judgment against himself and principal;
but if he would make his security available he must proceed under the mortgage.
5. A man in failing circumstances may prefer one creditor to all others, if there be
po opposing lieus upon his property ; and a grantee who is influenced by honest
purposes cannot be prejudiced by the mala fides of his grantor.
6. Where a mortgagee under the impression that a judgment and execution for
the debt intended to be secured, will draw to them the lien of the mortgage,
causes the mortgaged property to be lowed on and sold, and becomes himself the
purchaser; if he afterwards discover mat other liens superior to the execution
under which the sale was made, attached after the mortgage was executed, he
may go into equity, and foreclose the mortgage ; especially upon his stipulating
that the property shall sell for as much as it did at the execution sale.
Writ of error to the Court of Chancery sitting in WUcox.
IN March, 1842, the plaintiff in error filed his bill against
the defendants, setting forth that on the twenty-fourth of
March, 1S38, the defendant, Herrington, conveyed to him sev-
eral tracts of land, (all of which are particularly described,) situ-
ate in the county of Wilcox, and sundry slaves, whose names
and ages are respectively stated. This conveyance is condi-
tional and avowedly for the purpose of securing the payment
of three promissory notes, bearing even date therewith : the
first, for the sum of twenty-seven hundred dollars, and payable
on the first day of May, 1839 ; the others for the sum of eight
thousand, six hundred and fifty dollars, each, payable, the one
on the first day of May, 1840, and the other on the first day of
May, 1841. These notes were made in the presence of wit-
nesses, at the time of the execution of the mortgage, with the
express understanding and agreement that the mortgage was
given to indemnify the complainant for all liabilities he was
under for the mortgagor : and the aggregate amount of the
notes it was agreed should be twenty thousand dollars, because
the precise amount of the complainant's engagements for the
defendant could not then be ascertained.
It is further stated, that among other liabilities for Herring-
ton, the complainant was his security on two promissory notes,
payable to Samuel Snipes, each for three thousand, three hun-
dred and thirty-three dollars, dated the eighth of May, 1836,
and payable, the one on the first day of January, 1838, and the
other on the first of January, 1S39. Both of these notes have
144 ALABAMA.
Stover v. Herrington, et al.
been paid by the complainant, and the amount of them (with
damages and costs 'on the one last payable.) is now due to him,
excepting such sum as the sheriff collected by (he sale of Her-
rington's property, as hereinafter stated. Complainant believes
that the mortgagor has paid all the 1 other debts upon which he
was a surety, or he has not been called on to pay them.
The 'complainant charges, that fferrington removed from the
United States in the spring of th year 1840, carrying with him
all the slaves embraced by the mortgage, saving a girl named
Jane, (whom he sold to the defendant Burns, a short time pre-
viously,) and a woman named Judy. These slaves have been
since sold under an execution issued on a judgment rendered
against Herrington and the complainant, on the last note pay-
able to Snipes ; Jane for three hundred and thirty-five dollars,
and Judy for one hundred and seventy dollars. In addition to
this, the lands conveyed by the mortgage were pointed out by
the complainant to the sheriff, under the impression that such
was the proper course, and the same were levied on and sold
for the sum of six hundred and eighteen dollars ; at which sale
the complainant became the purchaser. These several sums,
together with, the amount for which a small part of the stock
were sold, were all credited on the execution before referred
to.
It is also stated, that the defendant Burn's, has brought an
action against the complainant for the recovery 'of the girl
Jane, or her value, which is still pending. Further that af-
ter the judgment against Herrington and the complainant, had
been recovered in the Comity Court, and about one month
previous to its affirmance by 'the Supreme Court* (whither the
case had been' removed by writ of error,) the defendant Bonner,
sued Out an attachment returnable to the Circuit Court of Wil-
cox, and long afi^r the sale under the execution as stated above,
recovered a judgment against Herrington. This attachment Was
levied on the land in question, and the same was again levied
on, and sold under ap execution on Bonner's judgment. The
complainant caused public notice to be given of his right to the
lands at the time of their sale; notwithstanding this, Bonner
became the purchaser of the same for the sum of fifty dollars.
The mortgage and notes recited in it are exhibited with the
bill, and a knowledge of their existence charged to have been
JUNE TERM, 1S44. )45
Stover v. Herri ngton, et a!.
communicated to both Burns and Bonner, previous to their rep-
pective purchases : in addition to which the 'mortgage is al-
ledged to have been duly recorded in less than thirty days
after its execution.
The prayer of the bill is, that the sale made by the sheriff of
the slaves, Jane and Judy, the stock and lands to the com-
plainant may be confirmed and allowed, or that the samejbe
resold under the mortgage: that inasmuch as the lands, or Her-
rington's right of redemption therein, Were sol^d by Bonner's
direction under his execution, and purchased by him, it is pray-
ed that he may be compelled to satisfy the complainant's de-
mund, or to the extent of the value of the lands j and that au
account be taken between the complainant and Herrington.
Further that Burns be enjoined from proceeding in his suit
at law against the complainant ; and that Herrington, Bonner
and Burns each answer the bill.
Publication was made as to Herrington, who was a non-resi-
dent, and having failed to answer, the bill as to him was taken
for confessed ; the other defendapts filed their answers. The
defendant Burns, admits that Herrington made such a mort-
gage as is described in complainant's bill, but whether there
was any understanding at the time of its execution, other than
what is expressed upon its face, he does not know; but he is
informed, and believes, that the three notes, which are stated
as the consideration of the mortgage, were merely voluntary,
and intended 10 furnish a pretext by which the creditors of the
mortgagor might be hindered and delayed in the collection of
their debts. Defendant has been, informed, and believes, that
when Herrington left this State, he was not in arrears ta the
complainant more than two hundred and sixty dollars, and
that he left enough properly to pay the same, on which the
complainant caused an attachment to be levied in April, 1S40.
In respect to the complainant being surety on the two notes
payable to Snipes, or otherwise bound for the debts of Her-
rington, or his having paid these notes, the defendant knows
nothing, except as informed by the bill. When Herrington re-
moved he left two other slaves besides Jjine and^udy, who
were embraced by the mortgage, viz: Bill and, Charles to
gether with some mules, which the complainant told defendant
he would take, but whether he ever did obtain possession of
10
146 ALABAMA.
Stover v. Herrington, et al.
them defendant does not know. After the execution bf the
mortgage, and previous to Herrington's removal, the complain-
ant purchased two of the slaves, which were mortgaged to him,
viz: Rachel and Maria or Mary.
The defendant further states, that the complainant and Jesse
Womack purchased the note payable to Snipes, which was
first payable, and that with the exception of two hundred and
sixty dollars, it was paid by the mortgagee, before he left the
State. This balance; with the second note, was all the com-
plainant could claim of Herrington when he removed. The
slave Jane was purchased by defendant sometime before the
mortgagor's removal, and complainant did not object to it, un-
til after that event ; although defendant is informed and be-
lieves that he was informed of it : in fact, complainant remark-
ed to him that he would have given him a bill of sale for the
girl, if he had been applied to previously.
It is further stated, that the judgment of the County Court
on the second note to Snipes, was rendered against Herrington
alone, and that an execution issued thereon in 1S39, was levied
on property of value sufficient to satisfy the same a forthcom-
ing bond given and forfeited, and a execution issued thereon,
which would have been forfeited, but for the execution of a
bond for a writ of error, in which the complainant was the sole
surety.
Defendant submits, that as the complainant never relied on
his mortgage, but pointed out the slave Jane, with the lands,
&c., to be sold under execution, whether he can now be per-
mitted- to set up his mortgage as a lien on this property.
The answer of the defendant, Bonner, is substantially the
same with that of Burns, except as to the girl Jane, about
whom his answer is not so full ; in addition, he states, that his
attachment was sued out at the time alledged, that he recover-
ed a judgment in the fall of 1841, for the sum of four hundred
and ten and 19-100 dollars, besides costs: that the execution
issued thereon under which the lands in question, (which had
been previously levied on by attachment) were regularly sold
on the first Monday in March, 1842, and the defendant became
the purchaser for the sum of fifty dollars. Defendant admits
that he had notice of the mortgage before the lands were sold,
but insists, as does his co-defendant, that the same was without
JUNE TERM, 1844. 147
Stover v. Herririgton, et al.
consideration and voluntary, intended to hinder and delay ihe
creditors of the mortgagor.
The .testimony was taken at the instance, both of the com-
plainant, and the defendants, Burns and Bonner, and so far as
material may be thus condensed, viz: Sterreit proves the con-
sideration of the mortgage, and the inducement to make it,
to have been such as is stated in the bill. He does not know
the slaves embraced by it, but one was named Jane saw Her-
rington sign the three notes for twenty thousand dollars and
considers the complainant's character for integrity to be above
all suspcion.
Warren states, that complainant told him he had the mort-
gage it was in the only fofm in which Herrington would give
it, yet he disliked to take it for so large an amount. Complain-
ant said it was intended to secure all the mortgagor's proper-
ty ; but he did not intimate that it was designed to prevent any
other creditor from collecting his debt.
Curtis says, both parties consulted him as to the propriety of
executing the mortgage he was not present when it was ex-
ecuted, although its. execution took place at his house and as
he understood in a public manner. The girl, Jane, in contro-
versy in this suit, is the same who is embraced in the mort-
gage. Knows complainant was surety for Herrington for a
large sum, and that his character is unexceptionable. Com-
plainant signed the writ of error bond, because H. soW him two
negroes for Si, 600, in part payment of a debt of $2,000, which
he Qwed him. H. did not leave property enough when he re-
moved to pay 350.
Burnett -knows that the complainant nas paid on the judg-
ment recovered on the second note to Snipes, three thousand,
one hundred and thirty-two dollars. Complainant said when,
the lands were sold under the execution in that case, that the
title would be good. The stock which was left by H. sold for
$270 06-100. Complainant's character was good.
Daniel estimates the value of the lands, negroes, horses and
mules, conveyed by H. to have been $8,195, at the date of the
mortgage; but when the Jast note to Snipes was payable all
the property included in the mortgage would not have sold
for more tlian about $5,000. Although the execution was
levied on H's property, it was that which was mortgaged;
148 ALABAMA.
Stover v. Herrington, et al.
and H. was unable 'to satisfy the execution without its sale.
Rachel and Maria were purchased by the complainant to pay
a debt due him. Witness believes Burns knew Jane was
mortgaged when he purchased her.
Gibson says, the complainant told him that he purchased Ra-
chel and Maria"of Herrington in full payment of a note, which
he held against H. to effect the purchase he had to become
his surety for the writ of error; whrch he regretted. Witness
does not recollect, but thinks the complainant paid $1,750 for
these negroes.
Burt proves that the complainant, tqld him that he put up a
printed notice in different parts of t.he 'county, previous to the
sale of the lands under the execution against Herrington and
complainant, in which it was stated that the title of the pur-
chaser would be good.
Jenkins states, that he wrote the notice alluded to by the
last witness, under directions from complainant, who said he
wished the lands to sell for their value ;' and they were sold
sunder the execution against Herrington.
To so much of the evidence as tends to add to, alter, or qual-
ify the consideration expressed on the face of the mortgage, as
well as to such parts of the testimony as relates to the com-
plainant's character, the defendants objected; and their objec-
tion was sustained.
The Chancellor was of opinion that the facts established
these conclusions : 1. That Herrington was greatly embarrass-
ed' at the time the mortgage was executed. 2. That the mort-
gage embraced his entire estate. 3. That whatever may have
been the complainant's intentions, Herrington intended to de-
lay and hinder his creditors in the collection of .their debts. 4.
That the notes described in the mortgage as the inducement
to its execution, were not sustained by a sufficient considera-
tion. 5. That the judgment on the second note to Snipes
might have been collected by a sale of property which H. re-
moved, if the complainant had not prevented it by becoming
his surety for a writ of error. As legal deductions, from the
facts it was held, that the complainant could not be allowed to
prove any other consideration for the mortgage than it express-
ed ; and that the mortgage was fraudulent : consequently the
]jj;li was dissmisscd at the complainant's cost.
JUNE TERM, 1841. 149
Stover v. Herringion, efal.
BETHEA, for the plaintiff in error, insisted, that the facts did
not warrant the conclusion that the mortgage was made other-
wise than in good faith, at least so far as the complainant was
concerned. True, it is not pretended, that the mortgagor was
indebted to the complainant to the amount of the three notes, or
any other certain sum, when the mortgage was executed ; but
only that the latter was his surety for the payment of debts,
which might or might not be less than twenty thousand dollars.
And if the intention of the mortgagee was honest, and his only
purpose was .to indemnify himself agninst the consequences of
his suretyship, the mortgage is clearly good. No principle of
law is violated by permitting the complainant to show the ex-
tent of his liabilities or advances for the mortgagor; especially,
when he shows that the reason Why he received the notes was,
because they could not determine with precision the amount
proposed to be secured by the mortgage. [1 Ala. Rep. N. S.
29 ; Id, 736-7; 4 Kent's Com. 142-5, 163-4 ; 7 Cranch's Rep.
42.]
SELLERS, for the defendant Bonner, submitted the cause on
his part. DEAR, for the defendant Burns, made the following
points- in writing :
1. The complainant should have alledged fraud in his bill,
to authorize the admission of evidence to add to, or, alter a
written contract; such testimony would then be allowable,
but the allegation must be made ; for it is a rule in equity as
well as at law, that the alleguta and probata must corres-
pond. [8 For. Rep. 211 ; 1 Ala. Rep. N. S. 160, 330; 2 Id.
571 ; 2 'Story's Equity, 7-16 ; 1 Johns. Ch. Rep. 429.]
2. To authorize the proof of a consideration other than
what is expressed in the writing, it should profess to be found-
ed upon "other considerations;" for a contract cannot be
partly in writing and partly by parol. [2 Plow's Rep. 292;
1 Ves. Rep. 127; 1 Johns. Rep. 139; 3 Id. 210, 506; 7 Id.
341 ; 1 Johns. Ch. Rep.'2Sl ; 2 Story's Equity, 746.]
3. A deed void for fraud in fact is void in toto t and can-
not be enforced to any extent in equity, (3 Ala. Rep. 444,) nor
stand as a security for subsequent advances, (4 Johns. Rep.
536, 597;) so where the first conveyance is fraudulent, and
another is made for the same property in good faith and for a
150 ALABAMA.
Stover v. Herrington, et al.
valuable consideration, the latter shall prevail. [1 Alabama
Rep. 237.]
4. The registration of a fraudulent mortgage cannot give to
it validity, or operate as notice of its contents. By pointing
out the property to the sheriff to sell under execution, the
complainant impliedly. admitted that it was invalid, and can-
not now be permitted to set it up. [4 Stewart ,& Porter's
Rep. 237-]
5. Where a mortgagor is in possession by the terms of the
mortgage, he has a right to sell the property, and his vendee
becomes entitled to all his interest. - In the present case the
complainant might have sold the lands, and slaves, Jane and
Judy, without causing the sheriff to levy on them.
6. Where the property conveyed is greatly disproportioned
to the debt intended to be secured, it affords a strong pre-
sumption of fraud. [1 Porter's Rep. 355.]
7. The party seeking to establish a deed cannot; be allowed
to vary it by the introduction of parol evidence. [2 Ala. Rep.
599, 600, 615.]
ild "tr-i > ".. " '
. COLLIER, C. J. In Shirras, et al. v. Craig & Mitchell,,?
Cranch's Rep. 34, a suit was brought for the foreclosure of a
mortgage, and it was objected to the validity of the deed that
it di4 not truly state the mortgagor's indebtedness, but great-
ly exaggerated it. The Court said, "It is true that the real
transaction does not appear on the face of the mortgage,. The
deed purports to secure a debt of ^30,000 sterling, due to all
the mortgagees. It was really intended to secure different
sums, due at the time to particular mortgagees, advances af-
terwards to be made, and liabilities to be incurred to an uncer-
tain amount. It is not to be denied that a deed which mis-
represents the transaction if recites, and the consideration, on
which it is executed,, is liable to suspicion. It must sustain a
rigorous examination. It is certainly always advisable fairly
and plainly to state the truth. But if upon investigation the
real transaction shall appear to be fair, though somewhat vari-
ant from that which is described, it would seem to be unjust
and unprecedented to deprive the person claiming under the
deed, of his real equitable rights, unless it be in favor of a per-
son who has been in fact injured and deceived by the misrep-
JUNE TERM, 1844. 151
Stover v. tferrington, et al.
resentation." [Doe, e| dem. DuvaU's heirs v. McLoskey, 1
Ala. Rep. N. S. 736-7.] So in Prince v. Shepard, 9 Pick.
Rep. 176, the debt described in a conveyance for the cred-
itor's benefit exceeded the amount really due, yet it was held
that this might be explained so as to rebut the presumption of
fraud. The statement of the consideration in the mortgage at
a sum much greater than what was really due, is at most only
presumptive evidence of fraud. [Parker v. Barker, 2 Mete.
Rep. 423.]
Although no consideration be mentioned in a deed, yet it is
not for that cause void; for every deed imports a considera-
tion, and it devolves OH the party who alledges the reverse to
offer proof of ^ the want of it. [Boynton v. Rees, 8 Pick.
Rep. 339; Clapp v. Terrell, 20 Pick. Rep. 250.] So it has
been held that a conveyance originally void as against cred-
itors in consequence of fraud, may acquire validity, if the
fraudulent intent be abandoned, and the confirmation of the
conveyance made for adequate consideration. [Oriental Bank
v. Harkins, 3 Mete. Rep. 332.] And a mortgage or other
transfer of property executed with intent to defraud creditors
cannot be avoided by them, unless the grantee participated in
the fraudulent intent. [Jones v. Norris, 2 Ala. Rep. 526 ;
Harrison v. Phillip's Academy, 12 Mass. Rep. 456 ; Foster v.
Hall, 12 Pick. Rep. 89; JJridge v. Eggleston, 14 Mass. Rep.
250 ; Johnson v. Johnson, 3 Mete. ^lep. 63.] Nor can a fraud-
ulent grantee be treated as a trustee of the grantor, -if he has
paid bona fide, debts of the grantor to the full amount of the
property received' (Thomas v. Goodwin, 12 Mass. Rep. 140)
and if he has paid a less amount- he shall be entitled to a
deduction protanto if there are no paramount liens. [Parker
v. Barker, 3 Mete. Rep. 423. See also Burnett v. Stanton &
Pollard, 2 Ala. Rep. 190 ; Cummkis & Cooper v. McCullough,
5 Alabama Rep. 324.]
Sometimes the question of fraud vtl non is 'determined up-
on an inspection of the deed without the aid of extrinsic
proof. [Ashurst v. Martin, 9 Porter's Rep. 566 j Gazzam v.
Poyntz, 4 Ala. Rep. 372.] But in the present case it is not
insisted that the mortgage itself discovers a legal objection,
but that it is defective, because it does not truly state the con-
sideration : and this fact is brought to the view of the Court
152 ALABAMA.
Stover v. Herrington, et al.
by testimony aliunde. In this aspect of the case the existence
ttf fraud must depend upon the. intention of -the parties as
shown by the proof, or inferred from established facts. [See
the cases last cited, also Wadsvvorth v. Marsh, 9 Conn. Rep.
481 ; Jackson v. Mather, 7 Cow. Rep. 304.]
If the view taken of the law be correct, there can be no
question that the depositions explanatory of the circumstan-
ces under which the mortgage was executed, and for the pur-
pose of showing the extent of the mortgagor's indebtedness,
are clearly admissible. And it is equally clear that they do
not show the complainant to be guilty of a fraud in obtaining
the mortgage. The statement of an exaggerated considera-
tion, in the language of some of the cases cited, is at most
prima facie evidence of fraud, and may be repelled by show-
ing the fairness of intention on the part -of the mortgagee.
This has been done by the testimony in the cause, which very
satisfactorily shows that the complainant did not intend to de-
ceive any one; and that the consideration was misstated, be-
cause the amount for which he was the surety of Herrington
was unknown to them at the time the mortgage was executed ;
and perhaps it was the only fo/m in which the security could
be obtained ; the mortgagor may, and most probably did, in-;
tend to defraud his creditors-, but this, we have seen cannot
prejudice the complainant, who did not concur in such a pur-
pose. That there was a consideration for the mortgage, as
well as the amount of it, is weft* established by the proof.
1 The complainant claimed nothing more than was really due,
and thus far we have seen his lien may be sustained.
The purchase by the complainant of two of the slaves em-
braced by the mortgage, cannot impair his lien as to the
others. It cannot be inferred that he intended thereby to. as-
sist in defrauding the creditors of Herrington. The presump-
tion from the proof is, that he esteemed the security suffi-
cient for his indemnity without these slaves, or if not, that he
considered it most beneficial to himself to purchase them in
extinguishment of another debt that was due him from the
mortgagor. Nor is fraud a legal conclusion from the fact #
that the complainant became Herriiigton's surety in a bond
for a writ of error, sued put to revise a judgment upon one- of
the notes against which it was the object of the mortgage t&
JUNE TERM, 1844. 153
Stover v. Harrington, et al.
indemnify him. Perhaps it may have been supposed that the
judgment would be avoided in toto; the complainant absolved
from liability to pay the note, and his lien of-course discharged.
Be this as it may, it would seem from, the proof that he did
not act from a sinister motive, but was forced to execute the
bond in order to obtain the two slaves.
The complainant was certainly mistaken, in supposing that
he could enforce the lien of his mortgae, by causing an
execution to be levied on the mortgaged property, while
there were older executions in the sheriff 's- hands against the
mortgagor's estate. -But this cannot operate as an estoppel,
so as to preclude him from showing that he never intended to
abandon the mortgage. The proof, instead of showing that he
contemplated such a purpose, warrants the inference, that he
su'pposod the execution when enforced for. his benefit, acquir-
ed potency from the mortgage. This accounts' for the solici-
tude felt and efforts made by the complainant, to <:ause the
lands to sell for a fair market value at the sheriff's sale. He
was doubtless of opinion that his interest as a mortgagee
would prevent competition, and the advertisement put up in
different places, was intended to encourage bidders by quieting
their apprehensions as to the title.
We have seen that the evidence instead of connecting the
complainant with the fraud (if any) which was purposed by
Herrington, entirely exculpates him. The fact that the latter
was embarrassed and conveyed his entire estate, considering,
that the only object of the complainant was to indemnify
himself against the consequences of , his suretyship, cannot in
any manner affect the validity of the mortgage. A party
though indebted beyond his means Of payment may prefer
one creditor to all others, and transfer to him or for his secu-
rity, all his property, whre there are no paramount liens
upon it. There may perhaps- be cases, where the dispropor-
tion between the liability intended to be secured and the pro-
perty conveyed is so great as to authorize the presumption of
fraud ; but the present is not "a case of that character.
It is clear that the mortgage imparted no aid to the exe/ju-
tion under which the complainant purchased, and consequently
he acquired no title as against the judgment and older fieri
facias under which Bonner claims. The purchase by Burns
20
154 ALABAMA.
Gary v. Boykin.
of the slave Jane was good against an execution, the lien of
which was not previously operative. This being the case,
the complainant is remediless unless Chancery can interpose,
and administer relief.. From the cause, as presented tons,
there is nothing attributable td him incompatible with honesty
of intention"; nor is any sufficient reason shown," why the
sales to Bonner and Burns should not be avoided; and the
purchases by the complainant declared to.be null; especially
.upon his stipulating that the property should sell for as much
as it did under the execution sale at which he purchased.
This being done, no objection is perceived in the present pos-
ture of the case to a foreclosure of the mortgage, and a decree
for the sale of the property embraced by it.
.That the cause may bfe proceeded in according to the princi-
ples of equity and ,the rules of procedure therein, the decree of
the Court of Chancery is reversed, and the cause remanded,
at the cost of the defendants in error.
GARY v. BOYKIN.
Sj'Jil'i !' '. * ,('!'!
1. Where the plaintiff excuses the sheriff from his duty to return an execution,
be cannot afterwards maintain a motion under the statute for the omission.
2. Where the principal sum of ah execution has been accepted by the plaintiff
from the sheriff, neither the plaintiff nor any officer of Court in his name, can
maintain a motion, under the statute, against the sheriff and his sureties, for
the costs.
Writ of error to 'the County" Court of Sumter.
MOTION against Gary, as sheriff of Sumter, for having failed
to return an execution at the suit of Boykin. The defendant
pleaded :
1. That before the return day of the execution the sheriff
paid to the plaintiff the damages and interest mentioned there-
in; and he then excused the sheriff from returning it.
2. A similar plea, with the further averment, that the money
so paid was accepted in full' satisfaction, and that the 'plain-
tiff had not been, aggrieved or injured by the failure of the
JUNE TERM, 1844. U5
Gary v. Boykin.
sheriff to return the said execution. Demurrers were sustain-
ed to both these pleas, and at the trial, upoli an issue to the
country on another plea, it was ofiered to be shown that the
proceeding, though in^the name of the plaintiff in execution,
was in fact instituted for the use and prosecuted for the benefit
of Price Williams, the clerk of the said Court, as a means of
securing his fees in the case; -and a receipt, from, him to the
sheriff for 200 dollars as fees "paid, but not expressing what
cases the sum was to be applied to, was also offered. The evi-
dence wa rejected and the defendant excepted.
There is now assigned as error, 1. The overruling of the
pleas. 2. The exclusion of the evidence.
( BLISS and REAVIS, for tfce plaintiff in error made the follow-
ing points : ^;
1. That it is a sufficient excuse'for the omission to return an
execution, that the plaintiff has been paid the money. [4 Ala.
Rep. 539.]
3. A rule cannot be maintained, whether the money is
made or otherwise, if the plaintiff excuses th.e return. [5
Ala. Rep. 65.]
3. The cjerk has no right to use the plaintiff's name to re-
cover his costs. [Clay's Digest, 205, 21, 22.]
4. That if the clerk had such a right, the evidence rejected
was proper to go to the jury.
R. H. SMITH, contra, argued that the plaintiff being re-
sponsible, in the event of a return of no property to pay the
costs, he is entitled to his motion, although- the principal is
paid ; and the clerk has the right to use his name to collect
the costs coming to himself.
GOLDTHWAITE, J. 1. So far as the questions raised in
this case are connected with the pleas, we think they are con-
cluded by the case of McClure v. Colclough, 5 Ala. Rep. 65,
when we held, that if the plaintiff's attorney, or an agent
properly authorized, induces the sheriff by any advice or di-
rection, to delay the return of an execution, this would con-
stitute a defence to a rule against the sheriff and his sureties.
We also said in that case that the plaintiff had an undoubted
right to control his own process, and relieve the sheriff from
156 ALABAMA.
Gary v. Boykin.
the necessity of returning it when not executed. Here, the
pleas are, that the plaintiff excused the sheriff from making
any return of .the execution upon 'which this motion is
founded. V i;
2. We think also that the other questions are covered by
the decision in Freeman v. Womack, 4 Ala. Rep. 541, where
a majority of the Court held, that a motion against the sheriff,
upon a suggestion that the money could have been made by
the use of due diligence^ could not be maintained after the
acceptance of the principal sum by the plaintiff. For 'such
neglect the statute gives ten per cent, damages; neither these
nor the costs were paid by the sheriff; but the Court consider-
ed the right to the damages as not being the principal matter
provided for by the act; and therefore they could not be re-
covered after the principal had been paid. In relation to the
costs, it was said, the plaintiff was not in a more favorable
position, as they were due to the officers of Court.
Independent of this decision we think the several statutes,
authorizing rules of a summary nature agaihst the sheriff are
all intended to provide for the security of suitors, and that they
do not apply to officers who seek to recover costs only. In
most cases the costs are distributable to many different per-
sons, and probably it would not be tolerated, that separate mo-
tions should be maintained by them, even if they were clearly
provided for by the teigns of the act; but' however this may
be, we are well satisfied that they have no authority to use ihe
plaintiff's name, either severally or collectively for this pur-
pose.
It is manifest according to these views that the Court erred.
Its judgment is therefore reversed, and, if desired, the cause
will be remanded.
\
' ,' *
\i tiJ .(!i>; ;,v
JUNE TERM, 1844. 157
Crawford v. Clute & 'Mead.
CRAWFORD v. CLUTE & MEAD.
: J ' > 't V i '* ' f s t ' ' v f > m
1. A pending attachment may be pleaded in abatement by the garnishee, when
sued for the same debt, by the ordinal creditor.
2. The plea must contain averments of all the facts necessary to give the Court in
whieh tha attachment is pending jurisdiction, and must show whether the whole
or what portion of the debt has been attached. A plea in abatement, therefore,
setting forth that garnishee process had issued upon a judgment, which did
not aver the amount recovered by such judgment, or that the affidavit which the
siatute'requires had been made, is bad on general demurrer.
3. It would be the duty of the Court in which such suit is brought, upon being cer-
tified of a pending attachment for the same debt, to stay the proceedings untrl
the attachment suit is determined ; and after judgment, if no plea had been in-
terposed, or an ineffectual effort had been made to, plead the (act in abatement,
to stay the execution until the attachment was determined, upon a satisfactory
indemnity being executed by the garnishee.
Error to the Circuit Court.of Mobile. '
> ."V *, &
ASSUMPSIT by the defendants in error, as indorsees of a pro-
missory note, made by the plaintiff in error; to one D. Jones.
To a declaration in the usual form, the defendants pleaded
as follows :
The said WHliam Crawford comes in proper person, and de-
fends the wrong and injury, &c., and far plea saith that on
the 29th day of July, in the year 1839, a writ of garnishment
issueclrfrom the Circuit Court of the United States, in and for
the Ninth Judicial Circuit, at tfre instance, and in the name of
Walo^HTj Thomas & Co. .commanding the said William Craw-
ford to appear at the next term of the said Court, to be holden
in the City of Mobile, and answer, on oath, what he was at
that time indebted to one David Jones and William J. Aubry,
lately trading under the firm of D. Jones & Co. That the said
npte described in the said indorsement on the writ of the said
plaintiff, was given by the said William Crawford to the said
David Jones that the said David Jones from whom the said
plaintiffs derive their title to the said note, is the same identical
David Jones, against whom the said Waldron, Thomas & Co.
obtained judgment m. the said Circuit Court of the United
158 ALABAMA.
Crawford v. Clute &
States, and that upon the judgment the writ of garnishment
issued to said defendant. That the said writ of garnishment
issued to said defendant, and was served on said defendant be-
fore the return day thereof, and was duly returned to said
Court, and that the debt, due from the said defendant on the
said note was then and there, placed in the custody of the law
and that the said garnishment and attachment are still pending
and undetermined in the said Circuit Court of the United
States. All of which he is ready to verify wherefore he
prays judgment of the writ, and that the same may be quash-
ed. Appended to the plea is an affidavit of its truth.
To this plea the plaintiff demurred, and the Court sustained
the demurrer ; and thereupon the defendant pleaded the gene-
ral issue, and verdict and judgment for the plaintiff, from
which this writ- is prosecuted.
The defendant now assigns for error, the judgment of the
Court on the demurrer to the plea.
^ The plaintiff in error filed a written argument, insisting that
the ptea in abatement was sufficient to oust the jurisdiction of
the State Court until the garnishment in Jhe United States
Court was decided. He cited 13 Peters, 151 ; 1 Wheat. 216;
12 Peters, 102 ; 5 Johnson, 10Q ; 9 H. 221.
LESSESNE, contra. He insisted that the plea was bad, but if
not, the question, had in effect been determined by this Court
in the case of Cook v. Field, 3 Ala. Rep. 53.
:.;-. IM!>; ",..i >'- t tr- i . , : \ ..
ORMQND, J.-^We think it perfectly clear, both upon pritt-
ciple and authority, that the matter of this pica is good in abate-
ment. The attaching creditor by the service'of the g^nish-
ment has acquired a lien on the debt in the hands of me de-
fendant, and we must presume that the Circuit Court of the
United States having acquired jurisdiction over the subject,
will enforce the prior right, which the plaintiff in the attach-
ment has acquired by the levy of the garnishment, even if
this Court should disregard it. As it is not certain that the
plaintiff in attachment will be able to enforce his lien, the pen-
dency of the attachment does not bar the prosecution of a suit
by the original creditor against the garnishee, but merely- sus-
pends his right of action tmtil trie attachment is determined,.
___ JUNE TERM/ 1844. 159
Crawford v. Cluie &. Mead.
In Embree v. Collins, 5 Johns. 10J, the defendant to an ac-
tion by the original creditor in New York, pleaded in abate-
ment an attachment pending for the same debt in Maryland,
a(nd the Conct held, the plea good. The same doctrine was af-
firmed in 9th Johns. 221; and in Brook v. Smith, 1 Salkeld,
280. See also Com. Dig. Attachment H, 719.
The case of Cook v. Field, 3 Ala. R. 53, is relied on by the
plaintiff's counsel as decisive of this case against the plea.
The point there decided is that an unsatisfied judgment against
a garnishee cannot be pleaded in bar of a suit afterwards
brought by jhe original creditor, and the argument is, that if a
judgment will not operate as a bar a fortiori, a suit which is
only proceeding to judgment, will not suspend lire creditor's
right to proceed for the recovery of his debt. The principle of
that decision is, that an unsatisfied judgment against' the gar-
nishee is no bar because it may never be enforced the attach-
ing creditor having the. right under our attachment law to en-
force the collection of his debt either against the garnishee or
the original debtor ; the unexecuted judgment .therefore is no
bar. But the garnishee before judgment obtained against him
has not the right to discharge himself, by paying the debt on
which he is garnisheed ; and as the garnishment is a lien upon
the debt he owes the original creditor, which when reduced to
judgment will be conclusive against him, if he .cannot be pro-
tected by pleading the suit pending, he will have to pay the
debt twice, without, any fault of his, a result which could not
be tolerated. .
Although it is a clear right in the garnishee to plead in bar
an executed judgment against him, or in abatement, a garnish-
ment pending for the same defy, when sued by the original
creditor, great strictness has always been required in the. plea,
and for most; obvious reasons. The rights of the creditor
ought not to be. impaired, unless it is clearly shown that his
debtor, the garnishee has been legally compelled to pay the
debt to another. For these reasons, it,.is held to be necessary
that the plea should show the proceedings at large, that it may
be seen that the right to attach the debt existed, and that the
custom, or attachment law has been strictly pursued. See the
authorities to this effect collected in 1st Com. Dig. Attachments,
I, 727. In Morris v. Ludlane, 2 H. B. 362, it was held, thai
160 ALABAMA.
Crawford v. Clute & Mead.
it was necessary to aver in the plea, that the defendant in at-
tachment Vas indebted to the plaintiff within the City of Lon-
don, as this was necessary under the custom of the City to au-
thorize the attachment. Indeed, such are the difficulties at-
tending the plea, that it is considered imprudent to plead the
matter specially in bar, when it may be given in evidence un-
der the general issne, as is the case when the action is assump-
sit. See the note to Turbill's case, I Saunders, 6?.
The plea in this case is bad, because it does not show that
the Circuit Court of the United States had jurisdiction to issue
the garnishment. Waiving all consideration of the question,
that it is not averred in the plea that the Circuit Court had ju-
risdiction to render a' judgment against David Jones, the as-
signor of the plaintiffs, and also whether' the Courts of the
United States can issue process of garnishment upon their
judgments to give the Court jurisdiction, it should have been
averred in the ptea, that the affidavit was made, which is the
authority for issuing the process under the statute of this State.
(Clay's Dig. 259, 1,2.] A judgment creditor has not the
right as a consequence of his judgment to sue out garnishee
process, but to entitle him to it, must make the affidavit which
the statute requires. The necessity for this averment, is more
apparent, when we consider that the process is not issued by a
judicial officer, but ex parte by the clerk of the Court, on the
applicati6n of the plaintiff, and if any intendment in favor of
the regularity of the proceedings could be indulged in, which
we have seen is not allowed in such a plea as this, it could not
be made in favor of a- mere ministerial act such as this is. It
was therefore necessary that the plea should have contained an
averment that the proper affidavit was made, without which
the Court had no jurisdiction.
Again, it should have been averred in the plea, that the en-
tire debt was attached, if such' was the fact, and if not, what
portion thereof* This could only appear in such a 'case as this
by, the record of the judgment, on which the attachment issu-
ed, or at least by the averment of the amount recovered. The
writ of garnishment merely requires the garnishee to appea'r
arid answer what he is indebted to the defendant in attach-
ment; it affords no information whatever as to the amount
claimed from the defendant in attachment. 1 The averment
JUNE TERM, 1844. 101
Rake's Adni'r, v. Pope.
therefore in the plea, that the debt was attached by the service
of a garnishment, does not show that the entire debt was at*
tached, it may be but a small portion thereof. There may be
other objections to the plea but these are sufficient to show that
the the plea is bad, and that the demurrer to it was correctly
sustained.
Notwithstanding, it is certain that an attachment pending^
may be pleaded in abatement, against a suit by the creditor,
for the same debt. We think the garnishee has the right, and
it would be the most convenient practice, to apply to the Court
in which such suit is pending for a stay of proceedings, until
the attachment suit is determined; which it would be the duty
of the Court to allow, upon being certified of the fact of the
pending attachment for the same debt. And, notwithstanding,
an omission to plead the fact in abatement, or an ineffectual at-
tempt to do so, it would still be the duty of the Court upon the
application of the garnishee, to stay the issuance 6f execution
until the attachment is determined, upon a satisfactory in-
demnity being executed by the garnishee.
See the case of Fitzgerald v. Caldwell's Executors, 4 Dalh
251, where that course was pursued in a similar case. Let
the judgment be affirmed.
RAKE'S ADM'R, v. POPEJ
1. That provision of the statute of frauds, which declares that a defendant shall
not be charged " upon any agreement which is not to be performed within the
space of one year from the making thereof;" unless (he promise or agreement,
or some memorandum or note thereof, shall be in writing, signed, &.c. docs not
pply to a contract wholly executed on one side, and where nothing remains to
be done on the other, but to pay the money stipulated as an equivalent : and
this although by the agreement, the money was not to be paid until after the
expiration of the year.
2. A plea which affirms that the contract for the breach of which the action is
brought was not seriously entered into, and if was, it was not intended to be
operative, is not obnoxious to the objection of being argumentative.
SI
162 ALABAMA.
Rake's Adm'r, v. Pope.
3. Sembte the plaintiff cannot object on general demurrer that a plea is argumen-
tative, or that it amounts to the general issue ; according to the English prac-
tice he should demur specially.
4. Where the' defendant pleads two pleas, earch of which tolerates the admission of
the same evidence, if a demurrer is improperly sustained to one, the judgment
will not be reversed on error, because the error could not possibly work an in-
jury- f
5. Where the defendant relies upon the adjudication of the matters in> controversy
in a former suit, as a bar to the 1 action, he is not confined in his defence to
proof by the record alone, but he may show by extrinsic proof what particular
matters were litigated between the parties, provided the matters were within the
issue tried in that suit.
6. The plaintiff brought his action^as alledged in the declaration, for the recovery
of the last of three instalments, agreed to be paid as the purchase money, for
certain property sold to the defendant by him : it was pleaded by the defendant
that the plaintiff had previously sued him fpr the two former instalments, and
that he had defeated a recovery, upon proqf that the contract sought to be en-
forced had never been entered into by him : Held fhat the plea was good,
and if supported by proof entitled the defendant to a verdict and judgment.
Writ of error to the Circuit Court of St. Clair.
THIS was an action of assumpsit brought by the intestate
of the plaintiff in error against the defendant, for the recovery
of the price of a stallion, (named Cicero,) which he had pre-
viously sold and delivered to him. The declaration contains
five counts, in some of which, the sum of two thousand dol-
lars, is alledged to be the last instalment of the purchase money
sought to be recovered ; in others, five thousand dollars is al-
ledged to be the price, and this sum the plaintiff claims.
The defendant pleaded 1. Non assumpsit. The 2d, 3d,
4th and 5th pleas, each, specially alledge with some immaterial
variations, that the intestate had before impleaded the defend-
ant for the non-performance of the identical promises and as-
sumptions in his declaration mentioned ; that an issue was
made up involving the fact and validity of these promises and
assumptions; that a trial thereof was had by a jury, who
returned a verdict in favor of the defendant, and judgment
was rendered thereupon, that the defendant go hence and re-
cover of the plaintiff his costs. This judgment it is averred
is in full force, not in any manner reversed, &c. 6. This
plea denies that such sale as is alledged in the plaintiff's de-
claration, was made seriously and in earnest, and avers that if
any sale. was in fact made, it was a mere sham, not intended
JUffE TERM, 1844. 163
Rake's Adm'r, v. Pop*.
to be binding, between the parties, &c. The plaintiff" demur-
red to the 2d, 3d. 4th, 5th and 6th .pleas, and his demurrers
weie overruled.
Issues were joined on the first and sixth picas : the plaintiff
replied to the secoud, third, fourth and fifth, denying that the
cause of action heretofore tried, was identical with that now
sought to be enforced. To these replications the defendant de-
murred, but his demurrers were overruled ; thereupon issues
were joined, and the cause submitted to the jury, who return-
ed a verdict in favor of the defendant, and judgment was ren-
dered accordingly.
On the trial the plaintiff excepted to the ruling of the Cir-
cuit Judge. It appears that there was proof tending to show,
that in October, 1S37, the intestate sold and delivered to the
defendant the stallion described in the declaration ; for which
the defendant promised to pay him five thousand dollars, as
follows, viz: One thousand on the^Sth December, 1837; two
thousand on the 25th December, 1838; and two thousand on
the 25th December, 1839. This contract was merely verbal,
no note or memorandum in writing being mad,e thereof. There
was also proof tending to show that there was no contract be-
tween the parties, but the whole matter was a sham.
There was also proof that an action had been commenced,
prosecuted and determined in Benton county upon the contract
in question. That the special counts in the declaration filed
in that case, were for the recovery of the first two instalments
the third not being due when the action was commenced.
The common counts however were literal copies of those con-
tained in the declaration in the present 'case. That cause was
tried on issues"formed upon the pleas ofnon estfactum and non
assumpsit, and the testimony and arguments of counsel, made
that case to depend and turn, upon the sole question of contract
or no contract : Further the jury found a verdict in that case
in favor of the defendant ; and judgment was rendered accord-
ingly. It was also shown that the special contract now de-
clared on, was proved on the trial of the suit in Benton.
Upon this evidence, the Court charged the jury, that if they
believed that the contract was oral, and no note or memoran-
dum of it was made in writing, and by its terms it was not to
be performed, that is, if the instalments sued for was not .to be
164 ALABAMA.
Rake's Adm'r, v. Pope.
paid within twelve months after the contract was made, then it
was within the statute of frauds, and could not be the foundation
of a recovery. Further that there could not be a recove-
ry on the common counts, if an action had been determined
between the same parties on the same contract, the declara-
tion having common counts identical with those in the pres-
ent case.
The defendant prayed the Court to give to the jury several
charges, which were refused j but as these can have no influ-
ence upon the instructions given, and the defendant had a ver-
dict and judgment, they need not be more particularly noticed.
S. F. RICE, for the plaintiff in error. The contract was eXr
ecuted on the part of the intestate of the plaintiff, by the sale and
delivery of the stallion to the defendant, and the latter cannot
object that he was not to complete the payments within twelve
months thereafter. The statute of frauds does not apply to a
complete sale, but only to an agreement for a sale which is not
to be perfected within twelve months. [3 Ala. Rep. 679 ; 1
Taimt. Rep. 458; 1 East's Rep. 192; 7 East's Rep. 558; 21
Pick. Rep. 384; 13 Jd. 1; 11 Cast's Rep. 142, 152 ; Chittyon
Con. 209.]
The sixth plea is argumentative, ano! should have been held
bad on demurrer. [1 Ala. Rep. N. S. 429.]
The trial in the former action, could have no effect upon the
plaintiff's right to recover for the third instalment of the pur-
chase mpney claimed ; nor is the charge in respect to the judg-
ment in that case barring a recovery upon the common counts
consonant to law. The record of a former suit must be a com-
plete bar in jtself, and cannot be aided by other evidence.
[2 Johns. Rep. 24; 7 Id. 20; 2 Wend. Rep. 369, 374;, 12 Id.
504 ; 4 Conn. Rep. 276.]
W. P. CHILTON, for the defendant. Part performance of
an agreement will not take a case out of the statute, when
the agreement is not to be performed within twelve months.
[11 East. Rep. 142.] The meaning of the statute of frauds,
is,, that its execution must be perfected within the year. [Chit-
ty on Con. 208.]
It is the same cause of action where the same evidence will
support both actions. [7 Johns. Rep. 20 j 8 Id. 383.] The for-
JUNE TERM, 1844. 165
Rake's Adm'r, v. Pope.
mer recovery in this case necessarily involved a decision upon
the contract. [3 Wend. Hep. 161; 9 Id. 287.1 If the plain-
tiff had recovered for the instalments first accruing, his right
to recover for the third would not have been thereby affected;
but being defeated in his first suit either by failure to show a
contract, or proof of its invalidity by the defendant, he cannot
maintain the present action.
COLLIER, C. J The first section of the statute of -frauds,
among other things enacts, that no action shall be brought
whereby to charge the defendant, " upon any agreement,
which is not to be performed within the space of one year
from the making thereof; unless the promise or agreement
upon which such action shall be brought, or some memoran-
dum or note thereof, shall be in writing, and signed by the
party to be charged therewith, or some other person, by him
thereunto lawfully authorized." [Clay's Dig. 254, 1.] It
has been held, that this provision extends to all contracts,
which are not to be carried into full, effective and complete
execution within the time limited by it ; and on this the de-
fendant's counsel founds -the argument, that a sale and deliv-
ery of property, is not sufficient to exempt a case from its in-
fluence, unless full payment is to be made by the purchaser
within the year. [Chitty on Con. 57, and cases there cited,
4 Am. ed.]
The statute was never intended to embrace a contract whol-
ly executed on one side, where 1 nothing was to be done on the
other, but to pay the 'money stipulated as an equivalent.
Speaking of the contract of sale, Chilly, in his treaties on
contracts (58) says, "that a.parol contract for the sale of goods
to be delivered, which the parties reasonably expected would
be delivered within a year, though, the price was to be paid
after that period, is not within the- statute; because in such
case, all that is on one side to be performed, namely, the de-
livery of the goods, is to be done within a year." In Donel-
lan v. Read, 3 B. & Ad. Rep. 899, the Court lay down the
law in equivalent terms, and add, "in case of a parol sale of
goods it often happens that they are not to be paid for in full,
till after the expiration of a longer period of time than a year ;
and surely the law would not sanction a defence on that
166 ALABAMA.
Rake's Adm'r, v. Pope.
ground, when the buyer "had the full benefit of the goods on
his part." Such also was the opinion of Abbot, C. J., in
Bracegridle v. Heald, 1 B. & Aid. Rep. 727. - See also Hoi-
brook v. Armstrong, 1 Fairf. Rep. 31.
In the present case, there was evidence tending to show the
sale and delivery of the horse described in the declaration, for
which the defendant agreed to pay by instalments. The two
last of these were payable more than twelve months after the
sale ; and the court charged the jury, that if the instalment
for which the action 'was brought, was not to be paid within
twelve months after the contract was made, then the statute
of frauds woald not allow the plaintiff to recover. This in-
struction supposes that a delivery of the horse would not re-
lieve the case from the influence of the statute. In this we
have seen that the Cdurt misapprehended the law.
The sixth plea is not argumentative in any just sense ; it
merely denies that any such contract as alleged in the declara-
tion was seriously entered into, and that if it was made in
fact, it was not intended to be operative. This latter remark
is not an argument to show how what precedes it, is true, it is
a reiteration in different terms of its truth. But if the plea
were argumentative would it be bad on general demurrer,
(which under our statute is its only effect, no matter in w'hat
form it may be interposed)? [2 Saund. on Plead. & Ev. 725.]
At most the plea amounts to the general issue, or rather toler-
ates the admission of evidence that could bQ offered under
non assumpsif.' If it be of the former description, it would
only be objectionable on special demurrer, which is not here
permitted, as we' have already said; and if of the latter, the
plaintiff has not been prejudiced by overruling his demurrer;
for the general issue alone 'would throw upon him the proof
of every fact, which is required both by it and the sixth plea.
So that it is wholly 'immaterial whether this plea is good or
not; neither party has been in any manner affected by the
judgment sustainipg it.
There are some few cases that maintain the doctrine, that
the record of a former suit must (if at all) be a bar in itself to
a subsequent action, and that extrinsic evidence is not admis-
sible to show what particular matters were litigated between
the parties. But the great preponderance of American .au-
JUNE TERM, 1344. 167
Rake's Adm'r, I, Pop*,
thority is in favor of the admission of parol evidence, to show-
what transpired upon the former trial, and thus explain the re-
cord. In Parker v. Thompson, 3 Pick. Rep. 429, it is said,
" 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 foun-
dation of an action of indemnity, the identity of the cause of
action may be proved by other than record evidence." Wheth-
er any matter has been tried between the same parties, and
decided before, is a fact depending in part on parol evidence,
and partly on the record. And this is said to be the doctrine
in England no less than in this country. [See the cases col-
lected in 3 Phil. Ev. 837 to 840, C ; & H.'s notes.] The case
of Davidson & Stringfellow v. Shipman, et al. at the last term
of this Court, considers-the doctrine at some length, and at-
tains the conclusion we have expressed. [See also Robinson
v. Windham, 9 Porter's Rep. 397.]
The issue in the previous suit always shows what matters
might have been litigated between the parties, and where the
judgment therein is relied on as a bar, it is competent to show
what were.the points there controverted, and prove them to be
identical with those involved in the case in hand. Matters that
were not within the issue, although they were litigated in fact,
are not available as a bar to a subsequent action, in which they
are drawn directly in question. In fact, it is not permissible
to show that any such matter was controverted in the first
suit, for this would be to add to, or contradict the record, in-
stead of assisting or directing its operation by other evidence.
[Manny v. Harris, 2 Johns. Rep. 24.]
In the case at bar under the issue in the first suit, it devolv-
ed upon the plaintiff, if he would recover any part of the
purchase money upon a sale of the stallion by a parol agree-
ment, to establish the contract. The pleadings were adapted to
theadmissiori of such proof, and theevidence recited in the record
informs us, that the sole question on which the determination
of that case turned, was, whether there was such a parol con-
tract. .This being tl^e case, it will follow from what we have
said, that the bar set np by the defendant will avail him, un-
less the fact, that this action is brought for the recovery of an
instalment which matured subsequent to the commencement
168 ALABAMA.
Rake's Adm'r, v. Pope.
of that suit, will take it without the effect of the judgment
there rendered.
In Gardner v. Buckbee, 3 Cow, Rep. 120, two notes had
been given upon the purchase of a vessel ; one of the notes
had been put in suit, to which the defendant pleaded the gen-
eral issue, and gave notice of a total failure of consideration,
because of fraud in the sale, and on that ground succeeded in
his defence. Afterward the second note was prosecuted, and
on the trial the defendant offered in evi'dence the record of the
former suit. The Supreme Court held, that the record with
proof aliunde that fraud in the transaction was the ground
upon which the verdict was founded, were conclusive against
the plaintiff. It is said that " by the finding of the jury both
propositions are affirmed. The judgment became conclusive
between the parties on these points, and is an effectual bar to
the action to recover the residue of the consideration money."
So Burt v. Sternbergh, 4 Cow.'Ref). 559, was an action of tres-
pass, quart clausum fregit.^ in which the defendant claimed
title to the premises. The plaintiff offered the record ,of a for-
mer suit for a trespass upon* the same premises, in which the
plaintiff had recovered, and accompanied it with parol evi-
dence, to show that the defendant on that occasion set up the
same title relied on by him in the latter suit. It was decided
upon the Circuit as well as in the Supreme Court, that the
record and evidence aliunde were conclusive as to the point
of title;, and in respect to that. title the recovery and evidence
were conclusive. It was however ( admitted that the defend-
*ant might have shown if he could, that he had acquired title
since the former trial, or any title other than that which had
been then passed upon. True, in Jackson v. Wood, 3 Wend.
Rep. 27, the Supreme Court of New Yorkj without particu-
larly noticing their previous decisions, held that evidence ali-
unde was inadmissible to assist the record of a former action,
so as to. show what came in question on the trial. But this
decision was reversed by the unanimous judgrrient of the
Court of errors. *[8 Wend. Rep. 9. See further, Lawrence
v. Hunt, 10 Wend. Rep, 80; 3 Phil. Ev. C. & H.'snotes> 844.]
From this view, it results, that the Qourt laid, down the law
correctly in the second charge to the jury. But we cannot
know that the jury were influenced in finding a verdict by the
JUNE TERM, 1844. 169
Durdcn v. Barnett & Harris.
evidence upon this point. It may be that their finding was in-
duced by the first instruction, which we have seen was erro-
neous; for that error the judgment of the Circuit Court mast
be reversed and the cause remanded.
DURDEN v. BARNETT & HARRIS.
1. A. father may sue in case for an injury done to an infant child (then living with
and engaged in his service) by dogs, permitted by the defendants to run at large,
after a knowledge that such dogs were accustomed to bite mankind.
. . * . *!
Writ of error to the Circuit Court of Montgomery County.
ACTION in the case by Durden against Barnett & Harris.
The declaration avers that the defendants wrongfully And in-
juriously did keep, and carelessly and negligently did permit
certain hound dogs, from ten to twenty in number, to run at
large, well kupwing the said hdund dogs then were used and
accustomed to attack and bite mankind: which said hound
dogs afterwards, and whilst the defendants so kept the same as
aforesaid, did attack and bite one J. S. D., an infant son of the
plaintiff then living with and engaged in his.serwice,/?er quod
servitiam amisit; and was also put to great expense, to wit,
five hundred dollars, in the necessary bealing of the said J. S.
D. The defendants demurred, and the Court gave final judg-
ment thereon in their favor. This is the only error assigned.
COCKE, for the plaintiff in error, cited 3 Black. Com. 141-2,
notes 27, 29 ; 1 Chitty's Plead. 50 ; Bac. Ab. 594, title Master
and Servant ; Cro. El. 55, 770 ; 3 Coke 38 ; Weedon v. Tim-
brell, 5 Term, 357 ; 5 East. 45, 221 ; Hall v. IJallender, 4 B. &
C. 460; Trimble v. Spiller, 7 Monroe.
HARRIS, contra.
GOLDTHWAITE, J. There can be no question, at this
day, that an action on the case is the proper remedy when an
22 -
170 ALABAMA.
Luskin, et als. v. Reese, et als.
injury has been sustained from the act of any mischievous ani-
mal. [1 Chilly's Plead. 137.] So also it is the proper action
to redress an injury to the relative rights of individuals : at all
events where the act causing the injury is not accompanied
with force. [Ib. 139.]
It is said the owner of domestic animals, not necessarily in-
clined to commit mischief, such as dogs, horses, &c., is not lia-
ble for an injury committed by them, unless it can be shown
that he previously had notice of the animals mischievous pro-
pensity ; or, that the injury was atlribulable to some neglect
on his part. ' [Smith v. Pelah, Strange, 1264; Burkv. Dyson,
4 Camp. 198.] From this it would seem to follow that it was
necessary to aljedge and prove a scienter.
We have examined the declaration demurred to, and find it
is alledged that the animals causing this injury, were accus-
tomed to bite mankind ; that this propensity was known to the
defendants ; and that, notwithstanding, they so negligently
kept them that the injury resulted. This we should consider
as entirely sufficient, if the suit was for the redress of a person-
al injury. The same rule applies when the action is for ^n
injury to the relative right of the father, who must be consid-
ered as entitled to the services of an infant child residing with
him. Even if the child was of very tender years, so-as to be
incapable of rendering any useful services, the action would
doubtless lie, if averments were made of consequential injury,
by expenses caused in healing the wounds; and perhaps, also,
for the deprivation of its society^
Judgment reversed, and cause remanded.
LAMKIN, ET ALS. v. REESE, ET ALS.
1. Where one purchases land at a sale made by order of the Orphans' Court, and
goes into possession, and remains in possession for two years, exercising owner-
ship over it by cultivation, and 'clearing the timbered land, &c., he cannot re-
scind the contract, although the Orphans' Court had no jurisdiction UJ direct the
sale, unless the heirs are unable or unwilling to make a good title to tho land.
JUNE TERM, 1844. 171
Lamkin, et als. v. Reese, et all.
2. Where a mistake has been made in the decree of the Orphans' Court, as to the
description uf the land intended to be sold, which mistake is continued in the
advertisement of the commissioners, the contract cannot be rescinded for that
cause, if the purchaser was not deceived thereby, but got the land he intended
to purchase, and the Court and the commissioners intended to sell. Nor will
a bill in Chancery be entertained to correct the mistake, unless upon application
to those having the power to rectify it, they refuse to do so.
.' /'
Error to the Chancery Court of Lowndes- County.
THE bili was filed by the plaintiffs in error, and alledges that
Edward Lassiter died seized and possessed, among other lands
of the N. W. quarter of Section 21, T. 15, R. 14, and that Geo.
M. Reese, was administrator on his estate. That James Tay-
lor, in right of his wife, who was a daughter of Lassiter, pre-
sented to the Orphans' Court a petition for the sale of the lands
for the purpose of distribution, upon the ground that a sale
would be more advantageous to the heirs than a division in
which petition the lands are correctly described.
That in the order o"f the Orphans' Court directing a sale, and
in the advertisement of the commissioners, the lands are cor-
rectly described, except that the land in section 21, .is described
as being in section 20 that the lands sold by the petitioners
were the same as described in the petition.
That the complainant Lamkin purchased the lands at the
sale, and gave his notes with security, for tlje purchase money,
and after occupying the same for a.bout two years abandoned
the possession, and gave notice to the administrator that he re-
scinded the contract on account of the irregularties in the
County Court,-and demanded his notes, upon which the admin-
istrator has brought suit. The prayer of the bill is for a. re-
scission of the contract, and for an injunction to the action at
law.
The commissioners in their answer admit the allegations of
the. bill, but say that under the order of sale they sold all the
real estate of the deceased, a part of which was the N. W.
quarter of section 21 that the sale took place on the premises
that Lamkin was present, saw the order of sale, and knew
that all the real estate of Lassiter was then sold that the Or-
phan's Court directed them to execute a deed for the land, and
to deliver the notes to the administrator. That they inform-
ed Lamkin that (hey were ready and willing to execute a deed
172 ALABAMA.
Lainkiii, et als. v. Reese, et als.
for the land, and afterwards tendered him one, in which the
lands were truly described.
The administrator answers to the same effect, and insists
that the misdescription of the land in the order was a mere
clerical mistake. That Lamkin has greatly injured the lands,
and has executed a mortgage thereon to the Bank, to secure
the payment of a large debt. That fhe heirs of Lassiter are
willing to join in a conveyance to Lamkin, and that he is
able and willing to secure and indemnify him for a fee simple
title. That wh,en he was about making a final settlement of
his administration, and dividing the notes among the distribu-
tees, he advanced his own money and re'tained these notes at
Larrikin's request, who said they were as good as cash.
The answers conclude with a demurrer to the bill.
The heirs of Lassiter who were not made parties to the bill,
filed a cross bill to obtain a discovery in the support of the de-
fence, and to have the mistake in the misdescription of the land
amended.
Testimony was taken on both sides.
At the. tiearing the Chancellor dismissed the cross bill, with
the assent of the complainant, and dismissed the bill of the
complainant, with costs, which is now assigned as error.
ELMORE and COQK, for the plaintiff in error insisted, that the
the sale was absolutely void, for want of jurisdiction in the Or-
phans' Court. That the Orphans' Court can acquire jurisdic-
tion in no other way than by petition in the mode pointed out
by the statute, and that the petition under which the land was
sold in this case is not authorized by either of the statutes em^
powering the Orphans' Court to sell the land of a deceased.
That as rile Court' did not obtain jurisdiction, the title is still
in the heirs, and although they may on arriving at age ratify
the the sale, the complainant is not bound to wait that result,
or incur that risk. [9th Porter, 675 ; 4 Ala. Rep. 21.]
They also cited 1 Ala. Rep. 273, 709 ; 3 S. & P. 367 ; 2 Ala.
Rep. 712, 113, 636 ; 3 Id. 406.
R. SAFFOLD and BOLLING, Contra maintained that the
Court had jurisdiction thai the 'fact that the petition was filed
by one of the heirs and not by the administrator, who was also
a party to the proceeding, was at mbst a mere irregularity, and
JUNE TERM, 1844. 173
Larokin, et als. v. Reese, et ale.
could not be taken advantage of collaterally. [6th Porter, 219,
262; 1 Ala. Rep. 732.]
If the bill be true, the complainants had a full and adequate
remedy at law.
The bill is defective because the heirs are not parties.' To
rescind a contract the parties must be put in statu quo. That
cannot be done in this case because of the injury to the land,
and also because of the mortgage, which complainant has giv-
en upon it. [4th Porter, 334 ; 3 Am. Com. Law,-405 ; i Story's
Eq. 254 ; 2 Peere Williams, 619 ; 2 Bibb, 52.]
ORMOND, J. The argument of the counsel for the plain-
tiff in error, has been mainly directed to Establish the' position
that the decree of the Orphans' Court for the sale of the land,
which the complainant purchased was absolutely void. That
for the cause assigned for the sale of the land 'in the petition to
the Orphans' Court, the personal representative of the deceas-
ed, should have been the actor, and not as in this case one of
the heirs. We shall decline the examination of this question,
because, conceding the argument to be true, the bill is fatally
defective.
The entire purpose of the bill is to rescind a contract for the
purchase of a tract of land, at a sale made by commissioners
appointed by the Court. Notes were executed for the pur-
chase money, and possession of the land taken and kept by the
complainant for upwards of two years ; during which time he
exercised ownership over it by clearing a considerable portion
of the timbered land, and it was not until after the lapse of
more than two years, and suit brought for the purchase mo-
ney, that this bill is filed for a rescission of the contract.
If it be true, as supposed, that from want of jurisdiction in
the Orphans' Court, the title of the heirs was not divested by
the sale, it by no means follows, that the complainant may at
his pleasure rescind the contract. He has sustained no injury,
if he can now obtain the title, whilst on the other hand, the in-
jury to the heirs may be irreparable, if the contract can thus be
arbitrarily rescinded by one of the parties to it. Nor is it an
unimportant element in the -consideration of this question, that
this was a judicial sale ; that the authority of the commission-
ers to sell was matter of record, and that the complainant, in
174 ALABAMA.
Lamkin, et als. v. Reese, et als.
the absence of fraud, which is not alledged, must be presumed
to have knowledge of the facts ; and if, in truth, as alledged in
the bill, he was ignorant of the irregularities in the proceedings
of the Orphans' Court, it will not avail, as* it was his duty to
inform himself before he purchased. Whatever, therefore, iay
have been his right, to a rescission of the contract upon tin's
ground, if a seasonable applicatipn.had been made for that pur-
pose, no such right exists, after such a lapse of time, and where
the interests of the heirs might be so materially affected there-
by,' unless the heirs were unable or unwilling to make title.
As already observed, the object of the bill is not for -a rescission
of the contract if the title is not made, but in this aspect of the
case, it is framed upon the supposition, that although. the heirs
may now be able and willing to make the title, that the com-
plainant may at this distant period abandon the possession and
rescind the contract.
The heirs are not made parties to the bill, but it appears from
the record that they filed a cross bill, in which they offered to
affirm the contract and convey the title. This bill the Chan-
cellor, with the consent of the complainant, dismissed, upon the
ground that as the heirs were not parties to the original bill,
they could not file a crpss bill.
It is also alledged in the bill, that although the lands of the
deceased were correctly described in the petition to the Coun-
ty Court, that in the decree of the County>Court for the sale
thereof, and in the advertisement of the commissioners, it was
incorrectly described a part thereof being described as being
in section twenty, instead of section twenty-one. It is admit-
ted in the bill that Lassiter, the deceased, died seized of the
lands as described in the petition. The sale, it appears, was
in fact made upon the tract lying in section twenty- one that
no one was deceived by the mistake in the decree of the Court,
and in the advertisement of the commissioners. That they
supposed they were selling, and the complainant supposed he
was purchasing, the land lying in section twenty-one, which
was the land designed to- be sold, and of which it appears he
went into possession.
The fact that there was a mistake made in describing the
lands intended to be sold, does not .of itself give a Court ..of
Chancery jurisdiction ta correct the misdescription of the lands,
JUNE TERM, 1844. 175
J. W. & R. Leaviit v. Smith, et al.
if that was the object of the bill. Before a Court of Chance-
ry will entertain a bill for that purpose, it must be shown that
application has been made to the opposite party to rectify the
mistake, and that he refused to do so. This was explicitly de-
clared in Long & Long v. Brown, 4 Ala. Rep. 622.
Nor is it any ground for rescinding a contract for the sale of
land, that it is not correctly described in the contract, the ven-
dee having obtained possession of the land he intended to pur-
chase, and the vendor being able and willing to correct the
mistake, and make a title to the property. [Evans v. Boiling,
5 Ala. Rep. 550.]
It is quite obvious from the frame of the bill, and all the facts
of the case, that the object of the bill is not to quiet the title,
but to get rid df the contract. This was the view taken by
the Chancellor, and we fully agree with him in opinion, that
he is not entitled to the aid of Chancery to rescind the contract.
The decree is therefore affirmed with costs.
J. W. & R. LEAVlTT v. SMITH, ET AL.
1. The plaintiff's execution was levied by the sheriff and a claim of property inter*
posed by a third person, and bond with surety given to try the right, pursuant to
the statute ; ihe plaintiffs moved to dismiss the claim, which being overruled, a
judgment for costs, was rendered against them, and a writ of error prosecuted
to .vacate the same ; the judgment was reversed and the cause remanded, then
on motion of the plaintiffs, the claim was dismissed : Held tbwr these proceed-
ings did not amount to a waiver, (upon the ground of election or otherwise,) of
the summary remedy against the sheriff for neglect in failing to make the money
on the execution. .
2. A sheriff who has beguu to do execution, should proceed therein, and having
levied it, the common law requires that he should sell the goods, even after the
return day, although he may have been superseded' by his successor; and be is
not excused for a non. performance of his duty by delivering the execution and
goods to his successor, but he must sell them, or otherwise legally dispose of
them. If by statute, a tenditioni ejfponas is made necessary to sell the goods
after the return day of the fi. fa., he should at least accept it, when it is tender,
ed him by the plaintiff.
176 ALABAMA.
J. W. & R. Leavitt v. Smith, et al.
3. Where the defendant in execution is in possession of property, the presumption
is that lie is the owner of it, and upon a motion against the sheriff for failing to
make the money upon the execution, it devolves upon the latter to show that
the property was not subject to levy and sale. to satisfy the same.
4. It is competent for a sheriff when charged with neglect in failing to make the
money on an execution, to prove that goods levied on by him under the impres-
sion that they belonged to the defendant, and afterwards released, were not the
defendant's property ; ami consequently not liable to the satisfaction of the exe-
cution.
Writ of error, to the Circuit Court of Coosa.
'Tins was a Suggestion under the statute, at the suit of the
plaintiffs in error, against Smith, as the sheriff of Coosa, and
the co-defendants as his sureties, ailedging, that with due dil-
igence a writ of fieri fqcias* placed in the sheriff's hands, at
the suit of the plaintiffs, against Jeremiah M. Friou's estate,
could have been collected. The suggestion was traversed, and
the issue submitted ,to a jury, who returned a verdict in favor
of the defendants. Oh the trial the plaintiffs excepted to the
ruling of the Court. From the bijl of exceptions it appears
that the plaintiffs read to the jury the execution described in
the suggestion, with the indorsment of its jeceipt by the sher-
iff, showing that the same was placed in his hands four days
after it was issued ; on which was the following return :
" Levied on a stock of goods, consisting of dry goods, hard-
ware, carriages, &c. property pointed out by J. W. Pryor,
plaintiffs' attorney, as the property of J. M. Friou, 1st Feb-
ruary, 1840." It was further shown by the plaintiffs that the
goods levied on, were worth about seven thousand dollars,
that Friou had in his possession four negroes, worth eleven or
twelve hundred dollars, while the execution was in force ;
and during the same time he levied on a house worth about
five hundred dollars. A witness stated, that it was the gener-
al understanding that . the goods, negroes, and house were at
the time of the levy, in the possession of A. B. Dawson and
Samuel Friou; though judging from what he saw, he should
say they were in possession of the defendant in execution.
Here the plaintiffs rested their case.
The defendants then read to the jury in despite of the plain-
tiffs' objection, an order of Court made at the Fall Term,
1840, permitting the sheriff to amend his return, as also the
JUNE TERM, 1844. 177
J. W. &. R. Leavitt v. Smith, et al.
return made under the authority thereof, as follows: "The
above goods have been claimed by A. B. Dawson and Samuel
Friou, as assignees of J. M. Friou, defendant in execution,
and claim bond given to Wrri. J. Campbell, now sheriff, my
successor in office, September 12th, 1840, A. Smith, late
sheriff/'
It was proved by the defendants, that on the second day of
the term of the Court, to which the execution was returnable,
A. B. Dawson made an affidavit, that the property levied on,
was not the property of the defendant in execution; nor liable
to satisfy the execution, but the title thereto was vested in
himself and Samuel Friou as assignees. To the admission of
this evidence the plaintiff objected.
The defendant then offered as evidence a bond executed by
Dawsbn and Samuel Friou, with smety, for the trial of the
right of the property levied- on, bearing even date 'with Daw-
son's affidavit. The plaintiffs objected to its admission for the
following reasons: 1. It was the duty of the sheriff to have
sold the goods, and the execution of the bond formed no ex-
cuse for the failure. 2. The bond was not approved by the
defendant Smith, but by his successor in office. 3. The bond
contradicted the return first made on the execution. But the
objections were overruled, and the evidence admitted. ;.*-'.
The defendants also read to the jury, notwithstanding the
plaintiffs' objection, an entry of the Circuit Court, made at the
Spring Term, 1 640, showing that a motion then made by the
plaintiffs to dismiss the claim of property, was overruled.
They were also permitted to read an entry, stating that plain-
tiffs declined to make up an issue, 1o try the right of property,
or to join. in it, when tendered by the claimants, or in any
manner to prosecute the case: thereupon, the Court adjudged,
that the plaintiffs be nonsuit. They were allowed further to
show that this judgment of nonsuit was reversed on error by
the Supreme Court, and the cause remanded, with instructions
to dismiss the claim, unless a good bond was executed.
The defendants then offered as evidence, an entry made at
the Fall Term, 1842, showing that on plaintiffs* motion the
claim was dismissed for the refusal of the claimants to exe-
cute a good and sufficient bond. To'the admission of this the
plaintiffs also objected. They also read to' the jury a tom-
23
178 ALABAMA.
J. W. & R. Leayitt v. Smith, et al.
mission from the Governor of this State, by which the defend-
ant Smith was appointed sheriff of Coosa county, in the place
of J. E. W. Logan, until the 22d day of February, 1840, when
his term of office was to expire.
The .defendants further read to the jury a receipt of his
successor in office, signed the 27th March, 1840, for the goods
&c., levied on by the plaintiffs' execution, and a receipt for
their safekeeping by the keeper of a warehouse in Wetumpka,
dated the*21st March, 1840. And they proved that the goods
in question were delivered to Smith's successor before the re-
turn day of the execution in question, and even before the
receipt was delivered.
It was then proved by the plaintiffs, that within ten days
after the levy of their execution, they executed together with
good and sufficient sureties, bond in the sum of ten thousand
dollars, payable to the defendant Smith ; conditioned to indem-
nify him against all damages he might sustain in Consequence
of a levy and sale under their execution. This bond was giv-
en upon the obligee's requisition for indemnity. The plaintiffs
further showed, that on the 27th of July, 1840, they caused a
venditioni exponas to be issued, requiring the sale of the
goods levied on, which was offered to the defendant with in-
structions to execute its mandate, and with notice that in case
of neglect he would be held liable. But he refused to receive
the writ stating that he was not in possession of the goods.
The plaintiffs thereupon prayed the Court to instruct the
jury as follows :
1. If they believed that the defendant in execution had suf-
ficient property in - Coosa cbunty, while the execution was in
Smith's hands, and that he received the execution on the day
indicated by his indorsement, then it was his duty to have
made the money thereon before its return, and the claim in-
terposed by Dawson and Friou, was no defence in the present
case. This instruction was refused by the Court.
2. If the goods referred to in the original return of the de-
fendant Smith, on the plaintiffs' execution, were of value
sufficient to satisfy the same, their delivery to his successor
before the return day of the execution, although his term of
office expired, and the interposition of the claim on the second
day -of the next Court by Dawson and Friou, did not relieve
JUNE TERM, 1844. 173
J. W. <fe R. Leavitt v. Smith, et el.
(he defendants from liability ; and they should find for the
plaintiffs. This prayer was in like manner denied.
3. If the execution of the plaintiffs was placed in the hands
of Smith at the date of his indorsement thereon, and from that
time up to the day of its return, the defendant had sufficient
property in Coosa county to satisfy the same ; then the expi-
ration of the defendant's official term, the proceedings under
the execution, the claim of property, &c., (particularly sum-
ming up all the facts shown by the bill of exceptions to have
bee,n proved at the trial,) did not excuse the defendants from
liability if the property levied on belonged to the defendant in
execution. This instruction was also refused.
The questions arising upon the objections to the testimony,
and the prayer for instructions, are all duly reserved.
J. W. PRTOR, for the plaintiff in error. The irregular judg-
ment of nonsuit, rendered against the plaintiffs on the claim of
property interposed by Dawson and Samuel Friou, (although
the Court went so far as to direct a delivery of the goods to
the claimants,) cannot in any manner prejudice the plaintiffs'
right to recover of the defendants. The order in respect to
the goods was extrajudicial, and could neither give or divest
rights. But if it was effectual for any purpose, it cannot be
set up by the defendants, as the judgment of reversal entirely
vacated it. [4 Ala. Rep. 335.]
The amended return made by the defendant Smith, was ir-
regular and afforded no answer to the suggestion ; because
the claim of property was made after tjie return of the execu-
tion, and the bond approved by the sheriff's successor, instead
of himself. So in respect to all the evidence-objecfed to, it may
be said to have been irrelevant, and for that cause inadmissible.
[Bondurant, et ak v. Buford, 1 Ala. Rep. N. S. 359.]
The evidence clearly warranted the first and second instruc-
tions prayed; for it was shown not only that the defendant in
execution was in possession of the property levied on, but of
other property also. The third prayer merely asked the Court
to charge the jury, that if the defendant in execution was the
proprietor of sufficient property to satisfy the execution, which
had been levied on, then they should find for the defendants.
The principle here assumed cannot be denied.
180 -ALABAMA. ___^
A. W. & R. Leavitt v. Smith, et al.
Nothing that was done by the plaintiffs after their execu-
tion was delivered to the sheriff _a mounts to a waiver of their
\ighl to proceed against him. [23 Wend. Rep. 490-6 ; Id.
306-9; 4M. & P. Rep. 790; 8 B. C. Rep. 132; 15 Eng.
C. L. Rep. 165.] The case of Ravvson v. Turner, 4 Johns.
Rep. 469, is unlike the present. There the plaintiff attempted
tp pursue a remedy, inconsistent with that he had previously
prosecuted.
W. W. MORRIS, for the defendants. Whether the defendant
Smith employed due diligence in endeavoring to make the
money on the execution is a mixed question of law and fact.
The mere omission to collect it, in the absence of all proof of
negligence or malfeasance, does not entitle the plaintiff to re-
cover in the summary proceeding which He 'has instituted.
[1 Stew. Rep. 438.] Time w.as necessary to make an inven-
tory'of the goods levied on, so that they could not be sold at
the expiration Of ten days; and before the'sheriff could make
the necessary preparation to advertise and Sell, his commission
expired. Under the impression that his powers had ceased,
he turned over to his successor the execution and the goods
before the return day ; and even if he was mistaken in this,
yet the facts proved at the trial afford a sufficient answer to
the suggestion.
Conceding that the sheriff was guilty of such negligence as
to make himself liable, yet as the plaintiffs elected to proceed
in the trial of the "right of property against Dawson and
Friou, they cannot now charge him upon a suggestion of neg-
ligence. [McElroy v. Mancius, 13 Johns. Rep. 121.]
As to the order of the Circuit Court upon directing the non-
suit, that the goods should have been delivered to the claimants,
whether extrajudicial or not, the sheriff was bound to obey it,
as the plaintiffs' did not supersede it by a writ of error bond.
The bond for the trial of the right of property though de-
fective, Was not so entirely null, as not to furnish a protection
to the sheriff' in delivering up the property. As to the leader
of the venditioni exponas to the sheriff, it does not aid in mak-
ing out the plaintiffs' case ; if it proves any thing, it rather
shows that they had elected to proceed against the goods.
The first charge prayed, stated the law correctly in a proper
case, but the facts were not adapted to it. The other charges
JUNE TERM, 1844. 181
J. W. & R. Leavitt v. Smith, et al.
were properly refused they required the opinion of (fee Court
upon a question of fact, which was properly referable to the
jury.
COLLIER, C. J It is insisted for the defendants, that if
the Circuit Court erred in the admission of evidence, or in the
refusal to charge the jury, the plaintiffs were not prejudiced,
and cannot complain ; because the proceedings upon the claim
of property interposed by J)a\vson and S. Friou, amount to an
election to pursue that remedy, and bars the motion against
the sheriff for a failure to perform his duty. There is nothing
in the record from which it can be inferred, that the plaintiffs
were willing to proceed to the trial o'f the right of property,
or had elected that case as a mode of making their, judgment
available. That was a procedure originated by the claimants
under the authority of a statute, in order to prevent the sale
of goods levied on, unless the right asserted by them, should
be adjudged invalid. The plaintiffs could not control the in-
terposition of such a claim, and if regularly made the sheriff
was bound to allow it. The case then, is commenced and
placed upon the trial docket, without the agency of the plain-
tiffs, and under circumstances that show that they were entire-
ly passive. 4
This being the condition of the claim of property, the
plaintiffs moved the Court as soon as it was docketed, to dis-
miss it: this motion being overruled, they declined proceeding
to trial, and a judgment of nonsuit with costs, was rendered
against them. To reverse this judgment,, they prosecuted a
writ of error to this Court; and upon the cause being remand-
ed they again moved for a dismissal for -the defectiveness of
the claimants bond : this motion was granted upon the refusal
of the latter to perfect their bond. So far from all this show-
ing an election to proceed to try the right of property, it rather
indicates the reverse; else why ask the Court, whenever an
opportunity presented itself, to repudiate that case? No ad-
verse inference can be drawn from the prosecution of the writ
of error by the plaintiffs. The reversal of the judgment of
nonsuit could only have been sought for the purpose of re-
lieving the plaintiffs from the payment of costs, and having
the case so disposed of, as not to prejudice their rights.
182 ALABAMA.
J. W. & R. Leavitt v. Smith, et al.
But s^epose the plaintiffs had voluntarily submitted to a
trial of the right of property, and been unsuccessful, would
this have availed the defendants as a bar to a remedy against
him for neglect. In Baylis v. Usher 4 Moore & P. Rep. 791-
2, Bosanquest, Justice, said, " a right of action once vested
can only be destroyed by a release under seal, or by the re-
ceipt of something in satisfaction of the wrong done ; and there-
fare the tenant does not waive his right of action for an ex-
cessive distress, though he enter into a written agreement with
his landlord, respecting the sale of the effects seized." And in,
Willoughby v. Bockhouse, 4 Dowl. & R. Rep. 539, Bayloy,
Justice, said, there was no such thing as a man's waiving his
right of action, when once a wrong had been committed.
Mr. Justice Co wen, succeeds a quotation of this remark with
the emphatic inquiry, " And indeed it may be asked, who ever
heard of such a thing being held?" He also said, "Nothing
is better settled than that, after an injury has beeen com-
mitted, the cause of action cannot be discharged by any
act' of the plaintiff short of a release, or acceptance of some-
thing in satisfaction." And this principle he enforces by the
familiar case of the delivery to, and acceptance of goods by
the plaintiff after the conversion or tort has been committed ;
in which it is held, that trover or trespass is not thereby bar-
ed. [Bowman v. Teall, 23 Wend. Rep. 309.]
In Ravenscroft v. Eyles, 2 Wils. Rep. 294, it was decided
that an action upon the case, for an escape upon mesne pro-
cess, was maintainable against the Warden of the Fleet, al-
though the prisoner returned and submitted himself to custody
on the same day, and the plaintiff proceeded to final judg-
ment againt him, with a full knowledge of his escape.
It has been held, that where the plaintiff without a know-
ledge of the prisoner's previous escape, opposed his discharge
under the act for the relief of insolvent debtors, lie might,
notwithstanding, maintain an action against the sheriff for the
escape. [Dash v. Van Kleeck, 7 Johns. Rep. 477.] But
where a plaintiff brings an action against the sheriff for an es
cape, he has elected to consider the prisoner as out of custody,
and cannot oppose his discharge under the insolvent act.
[McElroy v. Mancius, 13 Johns. Rep. 121.] So where a new
sheriff receives a prisoner from his predecessor, who had pre-
JUNE TERM, 1S44. 183
J. W. <fc R. Leavitt v. Smith, ot al.
viously made a voluntary escape, he is bound to keep him se-
curely, and the plaintiff has his election to consider the prison-
er in execution, and charge the new sheriff for an escape from
him, or as out of custody, and charge his predecessor. If he
has made his election, and prosecuted a suit to judgment
against the latter, this is a bar to an action against the former.
[Rawson v. Turner, 4 Johns. Rep. 469.]
The cases in which the election of a remedy against one
person, will bar an action against another, are those in which
the actions are inconsistent with each other, and the one last
brought requires the proof of facts incompatible with the first;
and which the Jatter impliedly affirms does not exist, or if they
do exist, it waives the benefit of them. There is no incongrui-
ty in charging the sheriff with neglect of duty in not making
the money on execution, after having moved the dismissal of
a claim to property, on which the execution was levied. Such
a motion, even if it recognized the case, and manifested a wil-
lingness to try it, or if there had been a trial in fact, would not
waive the summary remedy for neglect, or affirm that neglect
was not incompatible. How can the want of official diligence
be expurgated by attempting to subject to the satisfaction of
an execution, property on which the officer had levied. Such
a proceeding merely affirms the liability of the property, but
neither denies or excuses the neglect. The remedy then,
against the sheriff is concurrent or at most cumulative, and re-
mains unimpaired by the claim of property, whether tried or
not.
A sheriff or other officer, who has begun to do execution
may be compelled to proceed therein, and having levied it, it
was his duty at common law to sell the goods seized, even af-
ter the return day ; and this although he had been superseded
(in the meantime) by a successor duly qualified. The law in
this respect remains unchanged, unless it be to require a ven-
ditioni exponas to warrant the sale after the fieri facias has
lost its energy. [Bondurant, et al. v. Buford, 1 Ala. Rep. 359.]
The delivery of the goods, together with the execution to the de-
fendant's successor, did not absolve the defendants from the ob-
ligation to sell or otherwise legally dispose of them. Having
levied the^/J./a. it was his duty to provide for the safe keeping
of the goods, as they were not reptevied, and if to authorize a
184 ALABAMA.
J. W. & R. Leavitt v. Smith, et al.
sale a venditioni exponas was necessary, (upon which we ex-
press no opinion) he should at'least have accepted it when of-
fered. If they had been replevied upon good security, or the
claim of property had been regularly interposed upon affidavit
and bond, then the defendant Smith, might have delivered the
goods to the defendant in execution in the one case, and the
claimants in the other : and such a disposition Would have re-
lieved him from the imputation of the want of due diligence in
selling them.
Whether the claim made while the execution was in the
hands of the defendant Smith's successor, was so interposed as
to prevent the claimants from objecting to its irregularity, we
need not inquire. We have already said that the goods were
properly in his hands by the levy, and that he did not legal-
ly dispose of them. The evidence adduced by the defend-
ant does not furnish an answer to the suggestion, or in any
manner repel the presumption of neglect, which is inferable
from the fact that the defendant in execution was in possession
of property, a part of which had been levied on. In Minter
v. Bigelow & Co. 9 Porter's Rep. 481, it was determined, that
it would be presumed that a defendant in execution was the
owner of property of which he was in possession ; and that it
devolved upon a sheriff, against whom a motion was made for
failing to make the money on aft. fa. upon a suggestion of a
want of due diligence, to show that the property was 'not liable
to its satisfaction. See also Robertson v. Beavers, 3 Porter's
Rep. 385. No proof tending to such a conclusion was offer-
ed, and the inference as well upon the reason of the thing, as
upon the authority cited was, that not only the' goods, but the
other property of which the defendant in execution was osten-
sibly possessed, were subject to seizure and sale.
The statute under which the present case was instituted en-
acts, that upon the failure of any sheriff or coroner to make the
money on an execution, the plaintiff may suggest to the Court,
that the money could have been made with due diligence ;
thereupon it shall be the duty of the Court forthwith to cause
an issue to be made up to try the fact ; and if it shall be found
by the jury, that the money could have been made with due
diligence, judgment shall, be rendered against the sheriff or
coroner, or his sureties, or any or either of them, for the sum of
JUNE TERM, 1644. 18$
> : ^ ^ ^^ > ^_^__^_
Mdrgin v. Patrick &, Smith.
money specified in the execution, with ten per centum, &c. as
damages. [Clay's Dig. 218, 85.] In rfallett ^. Lee & others,
3 Ala. Rep. 28, it was held, that the defendants to the motion
might plead to the suggestion any matter in excuse or avoid-
ance, which would negative its truth. And we apprehend it
would be entirely competent for the sheriff to show as well
before as after levy that the money .could not be made. The
levy will not estop him from denying that the property seized
was the defendants. In taking it, he merely affirms that he
believes it is subject to the execution, and when charged with
the want of diligence, it is incumbent on him to show that he
was mistaken.
The facts proved by the defendants we have seen, were in
themselves immaterial and made out no defence ; they should
consequently have been excluded. But being admitted, when
taken in connection with the evidence offered by the plaintiffs,
a sufficient foundation was laid for the instructions asked ; and
they should have been given to the jury. The consequence is,
that the Circuit Court erred; its judgment is therefore reversed
and the cause remanded.
%-.-
MORGAN v. PATRICK & SMITH.
1. An action in the case and not assnmpsit is the proper remedy where the pur-
chaser has accepted a deed for lands, and he has been defrauded by the omission
to inform him of an outstanding incumbrance created by the vendor.
2. The admissions of a party are not evidence either of the conveyance of land,
in another State, or that by the law of that State, judgments are a lien on lands.
/The rule is, that admissions, out of Court, will not establish deed*, records or
statutes.
> .<". Vr' -ft $&l
Writ of error to the Circuit Court of St. Clair County. t
ASSUMPSIT by Patrick and Smith against Morgan, on the
* w
money counts.
24
186 ALABAMA.
Morgan v. Patrick &. Smith.
After the trial of the case, a statement of the facts proved
before the jury, and the questions supposed to arise thereon,
was made by the counsel of the parties, and substituted in
plage of a bill of exceptions. To make out their case, the
plaintiffs proved by oral testimony, that they had paid the
money sued for, to one Neal,.in the State of South Carolina,
upon a judgment obtained t>y him in that State against the
defendant, anc[ also gave in evidence a certified transcript of
the record of the cause. The interest statute of South Caro-
lina was given in evidence. The defendant objected to the
record as irrelevant to the issue between these parties, aud
excepted to the opinion of the- Court allowing it as evidence.
The plaintiffs produced two witnesses who testified that, in. a,
conversation held with the defendant before this suit was
^brought, he stated that the said. Neal had recovered a judg-
ment against him in South Carolina; that the defendant had
a tract of land there at the rench'tion of the judgment ; that he
knew at the time that this judgment bound, or was a lien on
his land ; that after the judgment was so rendered against him
and his land bound, he sold it to the plaintiffs ; that they did
not know of the judgment, and he did not tell them of it ; that
since he left the State of South Carolina, the plaintiffs had
paid the said judgment, but had done it without his knowledge
or consent, This was all the proof, on these points, and
nothing was in evidence as to the character of the conveyance
made by the defendant to the plaintiffs, or whether any was
made as above. The questions are, can the action of assump-
sit be maintained on these faqts? Is it competent to prove,
that the defendant sold the plaintiff a tract of land in South
Carolina, and that a judgment in that State botmd the land,
by the admission of the defendant as before set out ; or, should
higher evidence have been given? If there was error in ad-
mitting any of the evidence heretofore certified by the presid-
ing Judge ; or if the action of assumpsit cannot be maintain-
ed; or if the declarations of the defendant, as above, stated,
are secondary evidence, or are insufficient to show the sale of
land, or that by law judgments in South Carolina bind land ;
in either of these events it was agreed, the judgment in this
case should be reversed; if otherwise, it is tp be affirmed.
JUNE-TERM, 1844. 187
Morgan v. Patn'ck ic Smith.
W. P; CHILTON, for the plaintiffs in error, argued :
1. If the plaintiffs had a conveyance with covenants against
incumbrances, they should sue upon that in accordance with the
familiar principle, that assumpsit will not lie if the party have
a higher security.
2. If he had no covenants, they have no right to charge the
defendant for the amount paid in extinguishment of incum-
brances. [Cullum v. Branch Bank at Mobile, 1 Ala. Rep.
N. S. SI.]
3. The admissions of the defendant was no evidence, either
as to the conveyance of lands, or to the. lien of the judg-
ment.
T. A. WALKER, contra. .
GOLDTHWAITE, J.l. We 'think U clear that the judg-
ment in this case must be reversed, upon the statement agreed
to by the counsel.
The principal question is whether the action of assumpsit
is the proper one in the event that the case of the plaintiffs. was
made out by. legal evidence. This action, is allowed wherever
there is an express contract, not tinder seal, to pay money or
perform a duty, or where one can be implied from the circum-
stances in proof. [Chitty on Plead. 93.] In this case, according
to the facts agreed ' upon, the defendant sold to the plaintiffs a
tract of land, knowing at the time it was incumbered by a
judgment of which the purchasers' were ignorant. There is
DO question, but that this was a fraud upon the purchasers*
for which they had a remedy, ajthough there might' be no
covenants of general warranty, or against incumbrances.
Whereever there is a deceit coupled with an injury, it is said
an action on the case will lie r(Pasley v. Freeman, 3 Term.
31,) and even where a warranty under seal isexecuted.it
has been held in this Court, that an action may notwithstand-
ing, be maintained upon the deceit. [Cozens v. Whittaker, 3
S. &. P. 322.] It is true, this was a case where the warranty
and deceit was with respect to personal property; but the
same rule is laid down as applicable to purchasers of land;
Cooper v. McLewry,- Cooper, 308; ,3 Coke on Litt. note, 381,
a. and is recognized in Cullum v. Branch Bank at Mobile*
168 ALABAMA.
Morgan v. Patrick & Smith.
4 Ala. Reprl. These citations, showing that an action
on the case will lie on the fraud, whether there was or was
not a covenant of warranty in the conveyance, are quite con-
clusive to prove that assumpsit is not the proper remedy in
either tiase. In this case, however, it is impossible to know
from the admissions of the party, whether the conveyance made
by him was with or without covenant of warranty against
incumbrances. If there was such a warranty it is clear that
the party must resort to that, if he waives the deceit and pro-
ceeds upon the contract. [Dunn v. White, 1 Ala. Rep. 645.]
Our opiniori upon this part of the case is, that the action is mis-
conceived and cannot be sustained under any proof of the
facts stated.
2, We think it also very clear, that the admissions of the
defendant were not evidence, either of the conveyance of the
land by him, nor could they enable the Court to determine,
that judgments in South Carolina are considered a lien upon
lands. We must presume the common law to be in force
until changed by statute ; by this, a deed is necessary to con-
vey the title to lands ; by' it also, we know that lands are not
hound by judgments. - The rule is, that admissions, out of
Court, are not eviderjce to establish deed or records. [Has-
brouck v. Baker, 10 Johns. 19; Jenner v. Joliff, 6 Id. 9;
Cloud v. Patterson, 1 Stew.- 394.] And the same rule applies
with greater force to statutes, which ascertain the rules of law,
or give rights to individuals. [Willard C. Co. v. Hathaway,
8 Wend. 480 ; Hinaldi v. Ri'ves, 1 Stewart, 174.]
The result of this examination is, that the judgment must
be reversed, and the cause remanded.
JUNE TERM, 1844.
Haynes v. Crutchfield.
HAYNES Y. CRUTCHFIELD.
1. Where detinue is brought for the recovery of several articles, it is not necessary
that the value of each should be separately staled in the. declaration, but gene-
rally the jury should sever the value of each by their verdict.
2. It is sufficient to declare in detinue fora negro woman by name, without stating
her complexion, age, &c.; fur a' cow, without describing her color, mark, brand,
&c.; or for a certain number of knives and forks, without mentioning the maker's
name, character of the handles, &c.
3. The Court may permit a parly in a civil cause to challenge a juror at any time
before the cause is 'Submitted to the jury, although they may have been selected
and sworn.
4. It is not error to permit to be read to the jury, a ndte in writing addressed by the
plaintiff to the defendant, in detinue, before the commencement of the action,
requiring the latter to deliver to the bearer the chattel, for the recovery of which
suit is brought ; such evidence may be unnecessary, but it could not prejudice
the defendant.
5. If the trustee or one of the creditors, in a deed for the benefit of creditors, be
authorized to prescribe the day of sale, and the length of time for which it shall
be advertised,* the failure to notify any of the creditors of the time and placet
does not warrant the inference that as to one of the creditors provided for, and
who attended the sale and purchased the property, that the sale was fraudulent :
and the grantor who assented to and was present at the sale, cannot upon that
ground defeat an action by the' purchaser for the recovery of the articles sold.
6. Where the sale of property which had been conveyed by deed of trust, was, un-
der the powers conferred, expedited, (with the assent of the grantor,) so as to
prevent the interference of sonie of his creditors, who were prosecuting their
claims to judgment ; the grantor when sued by the purchaser at the trust sale
for property sold, cannot for that cause defeat a recovery.
7. Anf agreement between A.' and B. that the former should become the purchaser
of property, and allow it to remain with the defendant to re.sell and reimburse
the plaintiff, and if, after such payment there should be an excess, the defend-
ant should appropriate it to himself, does not make the plaintiff the defendant's
agent:. .
8. The. mere attempt of the purchaser of property at public sale to prevent a person
from bidding for it, will not render the purchase invalid as against public policy ;
but to have this effect the attempt must have been successful.
9. The omission of the purchaser of property at a public sale to take possession
thereof, will not prevent him from maintaining detinue against the former own-
er : actual possession by the plaintiff, not being essential to the maintenance of
the action.
10. In detinue for a cow and calf and fourteen hogs, it is not error, if the jury
assess an aggregate sum as the value of the cow and calf, and another sum at
the value of the hogs.
190 ALABAMA.
Ilaynes v. Crutohfield.
Writ of error to the Circuit Court of Benton.
THIS was action of detinue by tn% defendant in error against
the plaintiff. The declaration contains two counts, each of
which charge the detention of a female slave named Betty,
and others who are particularly named ; also many articles of
household furniture, plantation tools, stock, &c.. which are de-
scribed generally, by their respective numbers. To each of
these counts the defendant demurred, but his demurrer being
overruled, he plead'ed the general issue, and the cause was
thereupon submitted to a jury. On the trial, the defendant ex-
cepted to the ruling of the Circuit Judge.
The points presented by the bill of exceptions may be thus
succinctly stated. 1. Each of the parties challenged three of
the jurors composing the panel of twelve, and the jury was
then completed by summoning the requisite number of tales-
men, for that purpose. This being done, the plaintiff chal-
lenged another juror of the original panel; to this the Defend-
ant objected, but his objection was overruled, and the challenge
allowed.
2. The plaintiff proposed to read as evidence to the jury a
written request to which is appended a schedule of the proper-
ty in question ; this paper is subscribed with the plaintiff's
name, was proved to have been read to the defendant, and re-
quires him to deliver the property to Robert Porter. To the
admission of this paper the defendant objected, but the Court
overruled the objection, and permitted it tp go to the jury with
the instruction that it. was to be regarded by them, only as
the proof of a demand.
In 1839, the defendant executed a deed of trust to M. M.
Houston, to secure debts owing -to the plaintiff and other debt-
ors; some of whom lived within, and others without this State.
The deed did not prescribe a day of sale, but a time was agreed
on between the plaintiff and defendant, as well as the notice to
be given therepf ; and the trustee in advertising and selling
under the deed, as to time was governed by that arrangment,
although some of the creditors had no notice, and consequently
were not present at the sale. In adjusting the time of the sale
the object was to avoid a large judgment against the defend-
ant. The plaintiff bid off nearly all the property that was
JUNE TERM, 1844. 191
Haynes v. Crutcfifield.
sold ; before, at and after the sale he declared he was buying
the property for the defendant. Previous to the sale it was
agreed between the plaintiff and defendant, that the former
would buy in the property for the defendant, and permit it to
remain with him to re-sell, and after paying the plaintiff his
debt, to appropriate the residue to his own purposes. . While
the sale was going on, the plaintiff repeatedly endeavored to
induce one of the creditors provided for by the deed to cease
to bid for a negro woman. All the property bid off at the sale
was then, has been, and still is in defendant's possession. There
was evidence tending to show that the plaintiff bought the pro-
perty in question for the defendant's use ; and also that he
bought it for the benefit of the tavern house, wl;ich had been,
sold the day before, under another deed of trust, made by the
defendant to secure the plaintiff's debt, and bought by the
plaintiff. The defendant was in possession of the tavern at the
time of the sale, and has ,ever since retained it. Some of the
property sold low; and some at a fair price.
The Court charged the jury that if there was fraud in the
sale of the property sued for, the defendant could not avail
himself of it as a defence in this action.
The defendant's counsel prayed the Court to charge the jury
as follows : 1. Jf there was an arrangement between the plairr-
tiff and defendant by which an advantage was secured to
either of them, at the expense of the other creditors mentioned
in the deed ; thatr-in consequence of such an arrangement, the
sale was brought on without any notice to some of the credi-
tors mentioned in the deed, and that some of these were not
present thereat : and that the plaintiff induced any person' pre-
sent not to bid, in consequence of which some of the property
was bid off by him at less than its fair value, then as to such
property the sale was void and cannot be enforced.
2. If there was an arrangement between the plaintiff and de-
fendant, by \Vhich an advantage wassecured to either of them
at the expense of the creditors of the latter, who are mentioned
in the deed of trust, and in consequence of such arrangement,
the sale was made in the absence of some of these creditors,
and without notice to them, and the plaintiff induced any per-
son not to bid ; in consequence of all which, the property bid
off by him did not bring a fair price ; then the sale was void
192 ALABAMA.
Haynes v. CrutchfielcL
and could not be enforced thus far, unless the property was
delivered.
3. If the property bid off by the plaintiff was not delivered,
and the sale was made unfair by his agency, then he could not
recover the same.
. 4.*If the property has remained in the defendant's possession
without ever having been delivered to,the plaintiff, and the lat-
ter purchased it at an under value by inducing the belief that
he was buying it for the defendant, the plaintiff is not entitled
to recover the same.
5. That the plaintiff might have been the agent of the defend-
ant, although he received no consideration" therefor.
6. If there was any fraud in the sale and the plaintiff was
a participant therein, he cannot recover the' property in ques-
tion, unless the same was delivered to him : and the same con-
sequences follow, whether the fraud was intended to effect- the
creditors or the defendant; or whether consummated, or mere-
ly purposed. Each of which charges were refused, and the
jary returned a verdict for the plaintiff, on which judgment
was rendered.
' . * < . ,' i
r .
S. F. RICE, for the plaintiff in error. The declaration is
defective, in not ajledging the value of each article separately,
and in seeking the recovery of property much of which can-
not be .identified. The judgment is also obnoxious to these
objections. [2 Saund. Rep. 74, b.; 6 Com. Dig. 407, 2 x.
12.]
It was -irregular to permit one of the original panel of ju-
rors to be challenged after the jury had been completed by
summoning talesmen.
The letter addressed by the plaintiff to the defendant, or at
least a part of it, was inadmissible as evidence for any purpose,
and should have been excluded, upon the ground' that it was
merely the declaration of a party, forming no part of a res
gestae. [Brown v. Brown, 5 Ala. Rep. 508; Greenl. Evi.
224-5, note 2.]
If there was a fraud in the sale as against the defendant, or
his creditors, or both, or if the plaintiff and defendant so com-
bined as to enable the plaintiff to purchase at an under value,
in either case the plaintiff could not avail himself of his pur-
__^ JUNE /TERM, 1S44. 193
Haynea v. Crutchfield.
chase, if he had never had possession. In the latter case,
public policy would make it inoperative. [13 Johns. Rep.
118; Com. on Con. 53, 58, 133 ; Chitty on Con. 113, 222, 348,
225-7; 20 Johns. Rep. 397; 7 Wend. Rep. 276; 8 Johns.
Rep. 253; 8 Porter's Rep. 351 ; 1 Ala. Rep. N. S. 34.] The
defendant may set. up fraud not only in the execution of the
deed of trust, but in the sale under it. [16 Mass. Rep. 384;
3 Bibb's Rep. 177; 2 Pick. Rep. 184, 191, 199, 200; 18 Id.
95, 107.}
The proof does not show a delivery of the property in ques-
tion to the plaintiff, but the reverse is inferable. It cannot
be said that he was invested with a title without the possession ;
and if this was delivered, the defendant could not be prevent-
ed from defeating a recovery upon the ground of fraud. [8
Eprter's Rep. 237, 351 ; 9 Id. 472 ; Dunklin v. Wilkins, et
al. 5 Ala. Rep. 199; 13 Wend. Rep. 570; 21 Maine Reports
474.]
The evidence that the plaintiff was the agent of the defend-
ant in buying the. property, ,was such as should have been
left to the jury. [4 Porter's Rep. 321 ; 2 Nott & McC. Rep.
563.] If the plaintiff did purchase as the defendant's agent,
then the title revested in the latter, and the plaiptiff could not
recover on this action 1 . [3 Bibb's Rep. 177 ; 15 Johns-. Rep. 1 ;
I Cow. Rep. 290; 4 Wend. Rep. 394; 12 Wend. Rep. 413;
9 Leigh. Rep. 387 ; 10 Id. 381-; 20 Maine Rep. 317.] The
defendant's assent to the plaintiff's agency may be inferred ;
12 Johns. Rep 300; 3 Cow. Rep. 281 ; 1 Hall's Rep. 247; 4
Porter's Rep. 321 ; and this relation bet ween the parties might
be created without a legal consideration. [Story on Agency,
8-9 ; Paley on Agency, -249-250.] .
W. ,P. CHILTON, for .the defendant. Certainty to a common
intent is sudicient in a declaration in detinue, and the author-
ities very satisfactorily show, that the .description of the pro-
perty in question is quite certain enough. [S Viu. Ab. 40; 2
Straiige's Rep. 1014] It is not necessary that the specific
value of each article should be alledged. [8 Vin. Ab. 40 ;
Bac. Ab. tit. Trover, F. F. ; 2 II. Bla. Rep. 853'; 2 Step. N.
P. 1312.]
Conceding that the deed of trust was fraudulent as against
25
194 ALABAMA.
Haynes v. Crutchfield.
the defendant's creditors, he cannot be permitted to alledge
the fact in evidence. [Clay's Dig. 255 ; 8 Porter's Rep. 351 ;
1 Ala. Rep. N. S. 237.]
But there was no evidence of fraud, or that the plaintiff
acted as the defendant's agent in purchasing the property. If
there was an agreement that the defendant should have the
property upon paying plaintiff the purchase money, or that
after he was reimbursed'by a re-sale, the excess should be paid
to the defendant, this would not affect the plaintiff's right to
recover. The sale, for any thing appearing to the contrary,
was fair at least in accordance .with the defendant's wishes,
and the facts did not authorize him to ask the Court to instruct
the jury, that the plaintiff acquired no title by the purchase.
Such could not certainly have -been the legal effect of the
fraud supposed, unless the plaintiff had been paid the purchase
money.
The title to the property in question did not vest in the de-
fendant because the plaintiff bid it off; the arrangement be-
tween them, if any, was at most a trust, which is cognizable
in a Court of equity, where ample justice could be done to the
parties. If there was a fraud in the sale the defendant was a
party to it, and cannot set it up. [Butler & Alford v. O'Brien,
5 Ala. Rep. 322 ; Foster v. Goree, Id. 424.]
COLLIER, C. J. 1. It is not . necessary" where the action
of detinue is brought for the recovery of several articles, that
the value of each should be stated separately in the declara-
tion ; but generally, the jury should sever the value of each
by their verdict, that the plaintiff may recover them on their
value, severally, in satisfaction ; and the defectiveness of the
finding in this r'espect, it is said cannot be supplied by a writ
of inquiry. [1 Chitty's Plead. 123-4; 2 Steph. N. P. -131 3;
Pawly v. Holly, 2 W. Black. Rep. 853 ; 2 Stark. Ev. 494-5,
notes 1 & 2.]
The declaration states. the names of the slaves, the number
of beds, bedsteads, &c., sought to be recovered, without a de-
scription of size, quality, &c., and this we think is quite suffi-
cient upon demurrer. Detinue lies for writings whether in a
box or not, and it is not necessary to state the date of a deed
in a declaration. [2 Bacon's Ab. 317; 2 Steph. N. P.
JUNE TERM, 1844. 195
Haynes v. Crutcbfield.
1313.] So it may be maintained for money in a chest o* bag ;
for particular pieces of gpld or silver ; for so many ounces of
gold or silver ; or for an infant negro naming the mother with-
out any other description. [-3 Com. Dig. 364 ; Bass v. Bass,
4 Hen. & Munf. Rep. 478 ; Holladay v. Littlepage, 2 Munf.
Rep. 539.]
In-Boggs v. Newton, 2 Bibb's Rep. 221, it was held, tkat a
declaration in detinue for a horse, without designating the ani-
mal either by name, color, size, figure, &c. is bad ; arid that in
trespass and trover where damages only are recovered, the
ame strictness in pleading is not required. .[See 1 Chilly's
Plead. 123 ; Buller's N. P. 49-50 j 2 Saunder's Rep. .74,
n. 2.]
Whether the case cited from 2d Bibb can be supported we
need not inquire ; perhaps it may, as " horse" is a generic term,
and it is easy to specify the sex, &c. But we think it suffi-
cient to declare for a negro woman by name^ without stating
her complexion, size, age, &c. ; or for a cow without describing
her color, mark, brand, &c. ; or for so many knives and forks,
without mentioning the maker's name, the character of the
handles, metal, &c. In all these cases, it would, be difficult by
any circumlocution, so to particularize the property sued for,
as to enable a person to identify and distinguish it by inspec-
tion. There are many negroes, as well as cows, knives and
forks, &c., which would answer any reasonable or ordinary
description that could be given on paper. This being the case,
the declaration is sufficiently certain as applied to the subject
matter, and to require more would, in many instances, be a deni-
al of the remedy by action of detinue, where it is confessedly
proper ; for how can the loser or bailor of a great number of ar-
ticles describe them with exactness and particularity? This
result should be the more studiously avoided, as the statute
has made the action of detinue a more efficacious, safe, and
in some instances, more expeditious remedy than trover. [See
Hildreth v. Becker & Harvey, 2 Johns, cases, 339 ; Coffin v.
Coffin, 2 Mass. Rep. 363.]
2. It was clearly competent for the Court to allow either
party to challenge a juror, at any time until the cause was
submitted to the jury, although he may have been selected
and sworn. A peremptory challenge should not be allowed
196 ALABAMA.
Haynes v. Crutchfield.
after the jury has been completed under the eye and with the
assent of both parties; but in this case (if necessary) we might-
infer that a sufficient reason was shown for the exclusion of
the juror. In Tatum v. Young, 1 Porter's Rep. 298, this Court
said, " Where a cause has been tried by an unexceptionable
jury, the law v presumes no injury to either, for the want of any
other persqn, in lieu of any of those composing that jury."
The Court cited the United States v. Cornell, 2 Mason's Rep.'
91, in which Mr. Justice Story said, " Even if a juro.r has been
set aside by the Court for atl insufficient cause, I do not know
that it is a matter of error,. if the trial has been by a jury duly
sworn and impanneled, and above all exceptions. Neither the
prisoner nor government 'in such case, can have suffered any
injury." This reason is strikingly applicable fo the case at
bar, and we think affords a sufficient warrant for disregarding
the exception to the decision of 'the Circuit tDourt upon the
point we are coosidering.
3. The paper which was Vead to the jury in despite of the
defendant's objection, wets nothing more than a written re-
quest iiivthe form of a letter, that the defendant would deiiver
to the plaintiff the property in question, or pay him the
amount of the note which it had been sold to satisfy. It was
certainly admissible in connection with other evidence, to
show a demand and refusal, and it was thus limited by the
Court. Under the first count this was perhaps necessary to bo
shown ; but be this as it may, it was not impertinent evidence,
prejudicial to the defendant, but at most merely unnecessary.
4. It is not pretended that the sale under the deed of trust
is invalid, because the trustee did not pursue the directions of
the deed in advertising and selling the property ; and in tho
absence of the deed, or a recital of its contents, we cannot
know that the trustee was not authorized to prescribe the day
of sale and the length of time during which it should be ad-
vertised ; or whether such power was not* vested in any one
of the creditors provided for. If a sale might be thus directed,
the failure of the trustee to notify any of the creditors does
not warrant the inference that as to the plaintiff, the sale was
fraudulent.
The fact that the time of the sale was adjusted with a view
to avoid a judgment to be rendered against the defendant does
JUNE TERM, 1844. 197
Haynes v. Crutchfield.
not show the plaintiff contemplated a fraud upon the creditors
of the former. His object may have been to Collect a debt
justly due without any interference with rhe property by an
execution ; and if his debt was incurred bonnfide (as we must
intend,) the fair inference is,, that such was his purpose.
The supposition that the plaintiff in purchasing the proper-
ty at the trust sale was acting as the agent of the defendant,
is repelled by the evidence, which shows that -it was agreed
that the former should become the purchaser and allow the
property to remain with the defendant to. re sell and pay the
plaintiff, and if after this was done any thing should remain, the
defendant was to appropriate it to himself. It may be, that the
defendant acquired such a legal interest in the property'immedi-
ately upon plaintiff's purchase, that the latter could not recover
the possession by action at law ; but this question is not raised
upon the. record. The charge prayed, was, that the plaintiff
might be the defendant's agent without consideration therefor.
This could not be a material inquiry upon the evidence ; but
the attention of the Court should have been called to the
agreement between thro- parties, its validity, and w'hether it
constituted a bar to the action.
The effort of the plaintiff to prevent another creditor from
bidding for one of the negro women, if it had been successful
might, perhaps, have thus far prejudiced his right to reccfver,
on the ground, that it is against public policy to suppress com-
petition at auction* sales. But he cannot be in any manner
affected by it, as it does not appear that his request was regard-
ed by the bidder.
From this vie& of the evidence it will sufficiently appear,
that it did not to any extent tend to fix a fraud upon the de-
fendant, so as to prejudice his right of recovery. Consequent-
ly, neither the charge given, nor those refused in respect to
the mala fides of the sale, authorize the reversal of the judg-
ment of the Circuit Court. They must be regarded as ab-
stract and not cajled for by the facts of the case. [See Ro-
chelle v. Harrison, S Porter's Rep. 351 ; Eddins v. Wilson, I
Ala. Rep. N. S: 237.]
5. The failure of the plaintiff to take the actual possession
of the property in question at the time of his purchase, did
not prevent the title from vesting. Actual possession by the
198 ALABAMA.
Haynea v. Crulchfield.
plaintiff is not necessary to maintain detinue. .[Tunstall v.
McClelland, 1 Bibb's Rep, 186.] It is enough if he show pro-
perty in himself and possession by the defendant. [2 Starkie's
Ev. 493, and cases cited in the notes.] The fact, that some of
the property sold at a low price, in the absence of fraud impu-
table to the plaintiff cannot affect his right to recover.
The objection to the verdict that it does not ascertain the
value of the several articles sued for-, so as to enable the sheriff
to know what sum the plaintiff 7 is entitled to, upon the failure
to deliver any one, is not in our opinion sustainable. In
Viner's Abridgement,, the law upon this point is thus laid
down the plaintiff declared of three gold rings, and certain
parcels of cloth, &c., to the value of QQ, in a gross sum, and
the defendant pleaded to all quod non detinet, and the jury
found that he detained all to the damage of 30, if the stuff
could not be re-delivered. \It was agreed that the plaintiff
upon offer of the defendant of part of the stuff, is not bound to
receive it, but' may refuse it, if he does not offer all, and then
he shall have all the damages, but 'if he has- received any part
of the stuff, he has foreclosed himself of all the damages ; and
therefore, because the declaration was of a sum in gross, and
the defendant pleaded a plea to all, and the jury gq.ve entire
damages, it was held, that the plaintiff was entitled to judg-
ment; but several of the judges thought otherwise. (p. 40,
tit. Detinue, 13.)
. So, it is said, the verdict and judgment must bessiich, that a
specific remedy may be had for a recovery of the goods detain-
ed, or a satisfaction in value for each several parcel, in case
they, or either of them, cannot be returned ; and therefore
where the action is for several chattels, the jury ought by their
verdict to assess the value of each separately. But a flock of
sheep is said to be an entire thing, and ijfthe jury neglect to
find the value, the omission cannot be supplied by a writ of
inquiry. [2 Steph. N. P. 1314; Buller's N. P. 51.]
In Cheney's case, (10 Coke R.I 19,) the Court say, arguendo,
in detinue if the jury find damages and costs and no value,
as they ought, it shall not be supplied by writ of inquiry of
damages ; because if the defect in the verdict could be thus sup-
plied, the plaintiff would be prevented of his remedy by attaint,
although the omission to assess damages was on purpose to
JUNE TfcRM,. 1844. 199
Haynes v. Cruichfield.
deprive the plaintiff of his attaint/ But if the Court, ex officio,
ought to inquire of any thing upon which no attaint lies, there
the omission of it may be supplied by a writ of inquiry of da-
mages-.
It has been held, that where the plaintiff declared for several
slaves, laying the value of each separately, and the jury find
a joint value, the" verdict will not support a judgment, but a
writ of inquiry will be awarded that the damages may be se-
vered. How far this decision was influenced by a local sta-
tute we are not 'informed. [Higginbotham v. Rucker, 2 Call's
Rep. 313 ; Cornwell v. Truss, 2 Alunf. Rep. 195.]
In Backner v. Haggin, 3 Monr. Rep. 59ythe reason of the
rule, why, in detinue for several articles, the value of each must
be ascertained by a separate finding is said to be this, viz : if
after the operation of a distringas any one article cannot be
had, the Court may on proper application, supersede the dis-
tringas, and direct a fieri Jacias or other writ for the value
onty. According to this rule, in an action for two horses, if one
only " could be obtained and the other could not, there would
be no means of ascertaining what credit should be given in
value for the one obtained, "and what sum should be reserved,
for the one which was inaccessible 5 so that -either the plaintiff
below, must be obstructed in this event from proceeding fur-
ther, or the defendant from obtaining any credit for the horse
surrendered." [See Thomas and Wife v. Tanner, 6 Monr.
Rep. 62, and also Thomas v. Blunt, 6 Litt. Rep. 104.]
It will appear from whatwe have said, as well as from the
citations we have made, that although as a general rule, where
detinue is brought for several distinct articles, a verdict for
the plaintiff should ascertain the value of each separately f
yet the rule was'not held universally; as where the action is
for a flock of sheep, &c.; and even where the jury assess the
damages aggregately, it seems that instead of ordering a trial-
de novo, the appellate Court may remand with directions to x
award a writ of inquiry. Without stopping to inquire whether
these several inferences are sustained by principle, we are safc*
isfied that the objections to the verdict that.it finds an aggre--
gate sum as the value of a cow and "calf, and that fourteen hogs
are of the value of four dollars, without discriminating how-
much each is. worth, are not fatal to the verdict. It is not to
200 ALABAMA.
Johnson v. Lattimore.
be supposed that each of the hogs is of equal value, or that
they are so dissimilar in appearance that they could be describ-
ed on paper as to enable the sheriff or any one else to distin-
guish them. If then their value was separately assessed and
a number less than all were offered to be returned, how could
the sheriff tell for what sum to credit -the judgment, or how to
apply the values ascertained by the jury to each .hog. All
might be black, white or spotted, &c., and of the same sex,
so that they could not be identified in reference, to the verdict.
It would then have been wholly useless to sever the value of
the hogs, as from such a finding no consequences could have
resulted ; and as the law does not require that which is nuga-
tory, we think the verdict is sufficiently specific. A herd or a
number of hogs are quite as much an entire thing as " a flock
of sheep." The same reasoning does not apply to horses or
slaves, and as to these, the general rule .we have stated, it may
be conceded, is applicable. True, a cow and calf are distinct
animals, but as the value of each is enhanced by being con-
nected with each other, and as the plaintiff is not obliged to
receive the cow without the calf, or vice versa, there was no
necessity for determining their values separately.
JOHNSON v. LATTIMORE.
1. A Court may at the same term at which it renders a judgment, set it aside, and
retrace its steps, and a writ of error will not lie to review its action in recalling
its judgment.
Writ of error to the Circuit Court of Randolph County.
LATTIMORE had obtained a judgment in an attachment suit,
in a ju'stices's court of Randolph county, and having caused
an execution to be levied on a tract of land, he then moved the
Circuit Court at the Spring term, 1S40, for an order of sale,
under the statute directing such proceedings. The order was
made, and a venditioni exponas issued the 22d August, 1842,
JUNE TER'M, 1844. 201
McBeatb, et al. v. Hpann. use, <fcc.
under which the land was sold to the plaintiff Lattimore. At
the Spring term, 1844, a motion was entered by Johnson, that
the constable should be permitted to correct his return upon
the execution, under which the levy was made, so as to show-
that no notice of any kind was given to the defendant of the
levy. This motion was granted and the amendment made.
Afterwards in the same term, the order for the amendment was
set aside, although resisted by Johnson, who excepted to the
action of the Court in setting the 'amendment aside. This is
the only matter assigned as error. .
RICE, for the plaintiff in error, cited Watkins v. Gayle, 4
Ala. flep. 153; Burns v. The State, 5 Ib. 228 ; Clay's Digest,
207, 31.,
WHITE, contra.
GOLDTHWAITE, J. The writ of error in. this case must
be dismissed, because there is' nothing for it to remove to this
Court. The power of a Court to sat aside its own judgments
at the term at which they are rendered has never been disput-
ed. It may be that here, the Court became satisfied that the
evidence upon which it acted was unsatisfactory or not suffi-
cient to allow the amendment; or it might -have considered
the amendment as immaterial, and for that reason unnecessary.
Whatever may have been the reasons which induced the Court
to retrace its action and recall its judgment, its effect was to
lca\re the case as it originally stood, and consequently there is
nothing to review. Writ of error dismissed.
McBEATH, ET AL. v. SPANN, USE, &c.
1. A writ was issued against throe and executed en one, only ; thereupon an alia*
writ was issued against all without noticing the partial service, and returned ex-
ecuted as to the other two, and not found as to the defendant previously served :
Held that the service of the original was nol vacated by the alias and pr<x
ceedings thereon.
26
202 ALABAMA;
Williams v. Charles.
Writ of -error to the County Court of Macon.
THIS was an action of assumpsit on a promissory note, at
the suit of the defendant in error against the plaintiffs. The
original writ was returned executed on William Tatum, one
of the defendants, and not found as to the other two. An alias
writ issued against all the defendants and was executed in full,
except upon Tatum, as to whom it was returned " not found."
A judgment by default was rendered against all the defendants.
S. WILLIAMS, for the plaintiffs in error.
N. W. COCKE, for the defendants. '
COLLIER, C. J. It is insisted that by siting out an alias
writ against Tatum, the service of the original as to him was
waived, that having failed to appear, he was not before the
Court so as to subject him to its judgment. There is no ob-
jection to tlifi form of -the alias writ ; it would have been pro-
per for the clerk to have indorsed on it- how far the original
had been executed, merely as a direction to the sheriff in the
performance of his duties. But this was not an essential re-
quirement. The return of "not found" as to a defendant,
who had been already served with process, cannot relieve him
from the legal effect of what had been done ; or undo the reg-
ular service of the writ. All the parties had been duly noti-
fied of the pendency of the action, and having failed to appear,
were liable to a judgment by default, consequently the judg-
ment of the County Court is affirmed.
WILLIAMS v. CHARLES.
The settlement of an account by the defendant in execution with the sheriff, for
mdney due from him, is no discharge of the execution, although the sheriff
receipts for the amount of the account as money.
Writ of error to the Circuit Court of Macon.
JUNE TERM, 1844. 203
Williams v. Charles.
Tins suit was commenced on a suggestion by Charles, that
Williams-, as the sheriff of Macon county, by the use of due
diligence, could have, made the money on a fi. fa. at the suit
of Charles against one Jennings, and others.
At the trial of an issue between the parties it was in evi-
dence that a fieri facias was issued on a forthcoming bond,
on the 4th day of July, 1843, against Jennings and others,
which the defendant returned satisfied as to all but 271 50-100
dollars, which amount he returned, had been paid to a former
sheriff as appeared from his receipt. A fi.fa. had previously
issued against Jennings and one of the parties on the 27th- day
of February in the same year, and was indorsed as received
the 28th of that month, by one Fitzpatrick, who then was the
sheriff. He vacated the office without doing execution by
any actual levy, and the fi.fa. came to the hands of the de-
fendant on the 18th May, of the same year. It was levied by
the latter on a slave, and returned without satisfaction. Fitz-
patrick was indebted to Jennings for fees as jailer, and on a
settlement with him before he handed over the fi. fa., last
named to the defendant, as his successor he gave him a receipt
for 271 50-100 dollars against the fi. fa., but received no
money from him. The defendant was notified when the execu-
tion last issued was placed in his hands, to proceed and make
the money without reference to the receipt given by the for-
mer sheriff, as no money had been paid by Jennings.
On this state of proof, the defendant requested the Court
to instruct the jury :
1. That if they believed that the execution placed in the
hands of Fitzpatrick was never returned by him, but was af-
terwards placed in the hands of the defendant as his successor,
and was by him returned levied, and returned as forfeited,
that no rule could be maintained against the defendant on the
execution subsequently issued on the forfeited bond.
2. That if Fitzpatrick received on settlement from Jennings
an account due to him for jail fees, and gave a receipt for the
amount when the execution was in his hands, then Jennings
is discharged to that extent, and the defendant is not liable
thus far.
3. That if they believed the receipt from Fitzpatrick to
Jennings was presented to the defendant, he was bound to re-
204 ALABAMA.
Williams v. Charles.
ceive it as such ; and that it was proper to be taken into con-
sideration by them under the issue of due diligence, even
though'the defendant _ was notified that no money was paid by
Jennings in satisfaction of the execution, if the former sheriff
could have made the money out of Jennings by a levy.
These several charges were refused, and the refusal is now
charged as error.
HARRIS, for the plaintiff in error.
CQCKE, contra, cited Gullet v. Lewis, 3 Stew. 23; Bobo v.
Johnson, 3 S. &. P. 385 ; Codwise v. Fields, 9 John. 263; Bank
of Or. County v. Wakeman, 1 Cowen, 46 ; Mum ford v. Arm-
strong, 4 Cowen, 553.
GOLDTHWAITE, J. We are unable to perceive any
error in the refusal to give the charges which the defendant
below requested. The sheriff is a special agent' appointed by
the law to perform certain duties, and not the least important
of these is, the collection of money on the final process of the
Courts of justice. He is not permitted -to negotiate between
the parties so as tQ accept of any thing but money, as the sat-
isfaction of an execution in his hands.
The settlement of an account with . the sheriff in discharge
of an execution in whole or in part, is no payment of money,
and if permitted, would lead to the greatest abuses. In Bobo
v. Johnson 3 S. & P. 385, this Court expressed a similar opin-
ion where specific property had been traded for by a constable.
In Codwise v. 'Field, 9 John. 263, where the sheriff, without
consideration, discharged the debtor, it was said that such an
act would not affect the creditor, although -the sheriff would
be bound. In a case determined, at the last term, we held,
that the sureties on a sheriff's bond would not be permitted to
impeach his return of satisfaction, by showing that the defend-
ant in execution had traded him a watch in payment; but it
is evident the principle there was not the same as now pre-
sented.
Let the judgment be affirmed.
JUNE TERM, 1844. 205
__^
Crawford v. The Branch Bank at Mobile.
CRAWFORD v. THE BRANCH OF THE BANK OF
THE STATE OF ALABAMA AT MOBILE.
1. A notice at (he suit of a Bank against one of its debtors. Was received by the
sheriff on the 20th April, 1842, executed on the 7ih M,ay thereafter, and inform-
ed the defendant that the plaintiff woujd move for judgme'nt against him " at
the next term," &c., "to be hofiien," &.C., in 1841. In May, 1842, the defend,
ant appeared and filed a plea in propria persona: 'Held that the fair inference
was, that the motion was to be submitted at the term of the Court next sue.
ceeding the time, when the noiice was issued and served, that so much of ihe
notice as particularizes the time when the Court is to sit, may be rejected as
surplusage ; and that an appearance and plea to the merits is a waiver of the
objection to the process, if it were otherwise available.
2. Where the debtor of a Bank, against whom the summary remedy (provided in
such cases) has been prosecuted, pleads to the merits, and a verdict apd judg-
ment are rendered against him, he can riot object that the notice is defective, if
it show prima facie that he is indebted to the plaintiff: Semble where a mo.
lion is the initiatory process for (he collection of a debt, it is not scanned with the
same stric'ness as a dcclaratio.n, or notice against an officer for default in the per-
formance of his duty.
3. It is not enough to show that noiice was sent through the post office addressed
to the drawer of a bill at a particular place, but it should be proved that he re.
Bided there, or that that was the place at which notice should have been ad.
dressed to him.
4. The post mark on a letter is not evidence per se that the letter was deposited in
the post office on the day indicated by the dale of the post mark, yet its genuine.
ness may tie proved not only by the person who marks it, but by any person
who is in the habit of receiving letters from that office. Upon such proof being
made, it may be left to a jury to say whether the letter on which a post mark U,
was not in the office where the mark purports to have been made, at the time of
its date.
5. The notary public who protests a foreign bill is authorized to give notice of its
dishonor to all persons who are responsible to the holders, and a notice describ.
ing himself officially to which his name is printed instead of written is good.
In such case it may be intended from the similarity of the namn that the person
who made the protest, was the same who gave the notice,- although there is no
official seal attached to (he notice.
6. Each party to a bill has, until the day after he has received notice of its disho.
nor, to give or forward notice to his prior indorscr, and so on until the notice
has reached the drawer.
7. The notary protesting a bill may send notices to the holder to be given to the
prior parties, but the person (o whom the notices are sent must appear to be the
206 ALABAMA.
Crawford v. The Branch Bank at Mobile.
bolder, or perhaps it may be sufficient to show that he is his agent : in transmit,
ting the notice made out by the notary, the holder is not bound to use a greater
degree of diligence, than if he had prepared and forwarded notices in his own
name.
8. Where a notice of the dishonor of a bill identified it with reasonable certainty,
and there being no evidence to show that the party to whom it was given, could
have been misled, the Court might have informed the jury, that, if they found
the other facts in respect to the notice in favor of the plaintiff, the notice itself
in the absence of countervailing proof sufficiently identified the bill.
9. It cannot be judicially known, that a person who was elected by the Legislature
as one of the directors of a Bank, was appointed by the board its president pro
tern., merely because he certifies that a debt sought to be recovered by notice, is
bona fide the property of the Bank.
Writ of error to the Circuit Court of Mobile. *
THIS was a proceeding by notice and motion under the char-
ter of the Bank, to recover a judgment against the plaintiff in
error, as the drawer of a bill of exchange, drawn by him at
Mobile, the 15th April, 1841, on Wm. C. Dickinson of Mobile,
requesting him to pay to Henry G. Davis, or order, nineteen
hundred and fifty-two 92-100 dollars, on the 20th December
next thereafter, payable at the, Merchants' Bank of the City of
New York. The cause was tried on the plea of non assumpsit.
On the trial the defendant below excepted to the ruling of the
Court. The bill of exceptions shows that the notice, with the
returns thereon, as well as the certificate of the president of
the Bank was produced, without proof to sustain the same ;
whereupon the defendant objected to the motion, without
proof of the notice and its return, also the official character of
the persons whose names w"ere on the notice and certificate ;
but the Court overruled the objection, and entertained the
motion.
The plaintiff then adduced the bill and its protest for non-
payment, as also a notice signed by the notary in New York,
informing the defendant of the dishonor of the bill. A witness
testified that the notice was received by the plaintiff in a letter
written by the cashier of the Merchants' Bank of New York,
whose name is on the bill ; and on behalf of that Bank the bill
was protested on the 23d of December, 1841. When the no-
tice was received by the plaintiff at Mobile, its cashier on the
same day, (viz: the 6th January, 1842,) transmitted it through
the post office at Mobile, to the defendant at St. Stephens. It
JUNE TERM, 1844. 207
Crawford T. The Branch Bank at Mobile.
was admitted that the direct route from New York to St. Ste-
phens was by way of Claiborne and Jackson ; that letters
were usually transmitted by these places, and would be delayed
ii> reaching their point of destination if they were carried to
Mobile first.
The notice received by the plaintiff was postmarked New
York, the 24th December, 1841. The defendant objected that
the proof was not sufficient to sustain the motion ; that the
notice on the face of it was insufficient, because it did not ap-
pear that the bill was discounted, and the person whose name
was printed as a subscriber to the notice, and described, as a
notary, was not shown to have adopted it as his act ; nor did
he appear to be a party to the bill. Further it was objected
that it did not appear otherwise than by a post mark, that the
notice was forwa'rded from New York in due season, * and
that the notice to defendant was not sufficient." Upon all
the facts it was insistec^ that judgment should be rendered for
the defendant. But th'e Court r overruled all the defendant's ob-
jections, and adjudged the proof to be sufficient : whereupon
the defendant agreed that a judgment might be rendered
against him as on verdict, and the several legal questions aris-
ing upon his bill of exceptions were duly reserved.
CRAWFORD, Pro. Se., submitted an argument in writing, and
J. A. CAMPBELL, argued the cause at the bar for the plaiutiff in
error. The following points were made :
1. The notice required the defendant below to appear two
years before the motion was submitted, and nearly twelve
months before the maturity of the bill, and show cause why a
judgment should not be rendered thereon against him. [Craw-
ford v. The Planters' and Merchants' Bank, 4 Ala. Rep. 31 a]
2. The notice is insufficient because it does not alledge a de-
mand of v the payment of the bill at maturity, and a notice of
non-payment to the defendant as drawer. [6 Cranch's Rep.
221 ; 1 Stewt. & P. Rep. 48S.]
3. The Circuit Court instead of referring the facts to the jury,
took upon itself to adjudicate both the law and the facts a
course of procedure wholly unwarranted where an issue has
been submitted to the jury for its decision. [4 Cranch's Rep.
71.]
208 ALABAMA.
Crawford v. The Branch Bank at Mobile.
4. It does not appear that the defendant resided -at St. Ste-
phens at the time the notice was sent there, or that there was
a post office at that place. The bill of exceptions professes to
state all the evidence, and it cannot be intended that there was
other proof on this point than the record discovers. [Stephens
v. Broadnax & Newton, 5 Ala. Rep. 258.]
5. The post mark upon the letter forwarded from New
York, is no evidence that the notice was sent on that day.
The law does not require such .a mark to be made, but it is
made the duty of the deputy post masters, by the 73d rule for
the regulation of their conduct, thus to make up the mails;
6. The notice of non-payment has the printed name of
John D. Campbell, described as a notary -public at its foot,
yet it is insisted that he was not authorized to give notice.
Notice should be given by " the holder of a bill, or some other
party entitled to call for payment, or reimbursement." The
notary who protests a bill is the agent of the holder, but
there is.no evidence- that Campbell wa's a notary ; this could
only be shown by his official seal, or other legal evidence of
the fact. The holder of the bill might have adopted this im-
perfect notice as his own act by inclosing it in a letter, but
this was not done; the notice was merely folded in letter form,
addressed to the drawer at St. Stephens, without a word being
written by the plaintiff's officer or any one else. [2 Hawks.
Rep. 560.]
7. There was no proof that the Merchants' Bank of New
York acted as the agent of the plaintiff, or that the' latter was
the holder of the bill. It is admitted that it is competent for
a notary who protests paper to return it to his principal, and
the latter may give the necessary notices to charge the previ-
ous parties; but this does not appear to have been done. It
is insisted, that as notice was not given in a manner prima
facie regular, the proof should show that the defendant was
informed of the dishonor of the bill quite as early as he would
have been had the notice been transmitted from New York to
St. Stephens direct. [Bayley on Bills, 225 ; Chilly on Bills,
229; 6 Shepley's Rep. 292; 8 Porter's Rep. 262.]
8. The Court should have referred it to the jury, to inquire
whether the notice of non-payment sufficiently identified the
bill. [Bailey on Bills, 253 ; 3 Wend. Rep. 456.]
JUNE TERM, 1S44. 209
Crawford v. The Branch Bank at Mobile.
9. The signature of the president pro tern., of the Bank,
to the notice of the motion, or to the certificate, that the bill
was the property of the plaintiff, was not shown to be genu-
ine ; or that the character of the individual subscribing them
was what the notice and certificate imports.
DARGAN, for the defendant.
fi.
COLLIER, C. J. The notice informs the defendant, that
the Branch of the Bank, &c., will move for judgment against
him, "at the next term of the Circuit Court to be holden for
said county of .Mobile, OH the sixth tylonday after the fourth
Monday in March, 1841, and on the seventh Monday of said
term." This notice was received by the sheriff of Mobile on
the 20th of April, 1842, and executed on the 7th of the suc-
ceeding month. In the transcript there is a plea entitled, Fall
Term, 1S42, which was interposed by the defendant below in
prQpria persona ; at the foot of which the following memo-
randum is attested by the, clerk, viz : ".Filed, 5th May, 1842."
The fair inference from all this, is, that the motion -was to be
submitted at the term of the Court next succeeding the time
when the notice was issued and served. We have repeatedly
held, that where .a writ requires the -defendant to appear at
the next term of the Court, and particularizes a time past,
too remote in the future, or a time at which the Court does
not- sit, that this description of the term will be rejected as,
surplusage, and the process be held returnable at the term pre-
scribed by law. We will not say that a notice, when it is the
initiatory process, shall be governed by the same rule; but we
cannot thinkjhat there is any principle that will permit a par-
fy to come into Court, plead to the merits of the action, arid
then say that the process is defective, because it is returnable
at a time previous to its service.
In Barton, etal. v. Peck, 1 Stew. &. P. Rep. 4S6, it was de-
termined that in a summary proceeding against a sheriff and
his sureties under the. statute, for the failure to pay* over
money collected on an execution, the notice must alledge that
a demand was made of the sheriff, by whom, when and where;
Otherwise it will be bad on demurrer. This case was recog-
nized in Eroughton, et al. v. The Batik of Alabama, 6 Porter's.
Rep. 48 ? and under the influence of its authority it was held
27
210 ALABAMA.
Crawford v. The Branch Bank at Mobile.
to be competent to object to the notice in such case, .on de-
murrer, or after judgment by default on error. But the ob-
jection never could be allowed' after plea and verdict. It may
be remarked, that the cases cited have never been applied to
notices at the suit of a Bank against a debtor. In Lyon v. The
State Bank, 1 Stew. Rep. 442, it was decided that such notice is
sufficient, if it identify the debt with reasonable certainty,
though it has not the technical precision of a declaration. This
decision has been followed in practice, and the Bank notices
have been considered unexceptionable, although they do not
contain the extrinsic allegations that are essential to a decltfra-
tiOn.
It is true, it does not appear to have been shown that the de-
fendant resided at St. Stephens, or that, that was the place at
which notice should have been addressed to him. This was ne-
cessary to have been proved in order to make the notice availa-
ble. We cannot think that this objection was specifically made
in the Circuit Court, or it doubtless would have been sustained ;
yet upon the general'objection of the insufficiency of notice to
the defendant, we think it must be considered as properly pre-
sented. General objections calculated to entrap the Couft, and
the adverse party should be discouraged, and where they are
not promotive of justice, should be most unfavorably regarded
in an appellate Court; but the objection in the present in-
stance, is not so loosely expressed as to authbrize-us to over-
look it.
It is not Only necessary that the drawer of a bill should be
notified of its dishonor by depositing a notice in the post
office, when such is the proper medium of conveyance, but it
should be properly addressed to him. Now there is nothing
in the record to show that the defendant resided at St! Ste-
phens, or that notice should not have been given him at New
York or Mobile.. In the absence of proof on this point it
cannot be assumed that his residence was at one place or an-
other, or that the notice was properly transmitted. The Court
then should have required the, plaintiff to make further proof
on this point.
In respect to the post mark upon the letter supposed to have
been mailed at New York, it is not evidence per se that the
letter was deposited in the post office on the day indicated by
JUNE TERM, 1844. gil
Crawford v. The. Branch Bank at Mobile.
its date. Chitty in his Treatise on Bills, (645-6,) thus states
the law on this subject : " In civil cases, the post mark upon
a letter seems to be evidence of the time and place when it
was put into the post office ; and sometimes a reference to the
post mark on a letter misdated will establish the real time of
sending notice of the dishonor. In such case, although the
post mark is not necessarily assumed to be genuine, and
the best evidence of its authenticity would be the ^testimony
of the very person who impressed the mark, yet it should
seem that it may be proved by any post master, or any person
in the habit of receiving letters by that post." It has been
frequently held that post marks proved to be such, are evidence
that the letters on. which they are, were in the office where
those marks purport to have been made, at the time of their
date. [Kent v. Lo wen, 1 Camp. Rep. 177; Rex v. Watson,
Id. 215; La-ngdon v. Hulls, 5 Esp. Rep. 156 ; Rex v. Johnson,
7 East. Rep. 65 j Fletcher v. Braddyll, 3 Starkie's Rep. 64 ;
Rex v. Plummer, R. & M. C. C, 264; Abbey v. Lill, 5 Bing.
Rep. 299.] In the present case there was no evidence of the
genuineness of the post mark, and that fact could not be as-
sumed in despite of the 'objection of the defendant, to,the in-
sufficiency of the proof to show, that he had been duly notifi-
ed of the dishonor of his bill. The post mark being proved
by competent evidence, the date which makes a part of it,
would show prima facie at what time the mail was made up
in which the notice was sent.
Upon the dishonor of a foreign bill the custom of merchants
makes a protest indispensably pecessary, a,nd the production
of this protest attested by a notary public, without proof of
the signature, or affixing of the seal, will in .the case of a bill
payable and protested out of this country, be evidence of the
dishonor of the bill, and to it all foreign Courts give credit.
[Chitty on Bills, 9th Am. ed. 361-2.] But the mere protest is
not. sufficient, a copy of it, or some other memorial must be
sent within a reasonable time to the person on whom the hold-
er means to call for payment. Id. 363 ; Wallace v. Agry,
4 Mason's Rep. 336 ; Lenox v. Leverett, 10 Mass. Kept 1.]
The law does not prescribe any form of notice to an indor-
ser; -all that is necessary is, that it should be sufficient to put
the party on inquiry, and to prepare him to pay it or to defend
212 ALABAMA.
Crawford v. The Branch Bank at Mobile.
himself. Even if there be some uncertainty in the description
of the bill or note, if it does not tend to mislead the party it
will be good. [Reedy v. Seixas, 2 Johns, cases, 337; Mills v.
Bank of the United States, 11 Wheat. Rep. 431; Forster v.
Jurdson, 16 East. Rep. 105; Chitty on' Bills, 9th Am. ed. 501,
et post & notes.] Where a' note was payable in Bank, and a
notice of non-payYnent was giv,en on the day that-it became
due, but in the notice the name of the maker was mistaken
and the note was stated to be due three days before ; the no-
tice was held sufficient, it being in evidence that the Indorser
was liable on no other note in Bank. [Smith v. Whiting, 12
Mass. Rep. 6; 3 Kent's Com. 2d. ed. 94.] A notice in these
words, " I give you notice that the bill drawn by you, &c., is
dishonored," was adjudged "sufficient. [Beachamp v. Cash,
D. & R. Rep. (N. P.) 3.] So it has been held, that it need not
state at whose request it was given, or who was the owner of
the note. [Shed v. Bret, 1 Pick. Rep. 401.} Nor is it neces-
sary that it should slate that the holder looks to the party
notified, for payment ; this is the natural implication from the
notice itself. [Bank of the 'United States v. Carneal, 2 Porter's
Rep. 543; Cowles v. Hart, 3 Conn. Rep. 516.]
It is said not to be necessary that the notice should come
from the party, who holds 'the bill, when dishonored, that it
suffices if given by any person who is a party to it. And it
has therefore been held, that if the drawer or in(Jo'rser of a
bill of exchange receives due notice of its dishonor, from any
person who is a party to it, he is directly liable upon it to a
subsequent indorser, from whom he had no notice of the dis-
honor, even from the acceptor. [Chitty on Bills, 9th Am. ed.
527-3, 530.]
The notice in the present case is addressed to the defendant
by writing his name at the foot of the page, as will be seen
below.- It is dated New York, December '23, 1841, and pro-
ceeds thus : " Please 4o tak^ notice that your two bills on Wm.
C. Dickinson, one for 1,000 dollars and the other for 1,952
92-100 dollars, and accepted by him, are protested for non-
payment, and that the holder looks to you fpr the payment
thereof. Your obedient servant, JOHN D. CAMPBELL,
Notary Public, Merchants' Bank, and Attorney at Law office No. 20, Wall street.
MR. WM. CRAWFORD."
JUNE TER^f > 1844. gi3
Crawford v. The Branch Bank at Mobile.
This notice when taken in reference 4o the bill which was
payable to the Merchants'- Bank, at which Campbell seems,
by his subscription to exercise the office of notary, and the
protest which was doubtless adduced at the trial, though it
does not form a part of this transcript, would authorize the
presumption, that the party in whose name the notice is
made out, was a notary public, and the same who protested the
bills. This remark is made upon the presumption that the
same name appears to the protest and notice.
The fact, that the name of " John D. Campbell" and his
official designation, residence, &c. are printed, are wholly imma-
terial. If he adopted this as his own, it would be quite as effec-
tive for all legal purposes, as if written with his own hand. If
then, there exists the harmony supposed, between the notice
and the protest, the inference must be, that the person whose
name appears to the notice, is the notary who was authorized
to demand payment of the bills, and of consequence the agent
jof the holder to give notice of their dishonor.
Jf the notice had been signed by a stranger representing him-
self as the agent of the holder of the bills, it would doubtless
have been sufficient, if in truth he was his agent, although the
defendant may not have been informed that such was his cha-
racter. Here it was subscribed by a notary, who if he pro-
tested the bills was authorized to give notice of their dishonor.
The protest by him would be evidence, of his authority, and
make the notice sufficient without the aid of a notarial seal, or
other assistant proof.
It is usual for the holder only to give notice to the person
from whonx he immediately received the bill or note ; especial-
ly if he is ignorant'of the residence of the other parties. The
rule is settled, says Chitty (Treat, on Bills, 520-1) "that
each party to a bill or note, whether by indorsement or mere
delivery, has in all cases until the day after he has received
notice, to give or forward notice to his prior indorser, and so
on till the notice has reached the drawer. And this rule is so
strongly fixed, that a party receiving notice of the dishonor of
a bill, need not give or forward notice to the party immediate-
ly before him, till the next post after the day on which he him-
self received notice, although he might easily have forwarded
it on that day, and although there is no post on the day follow-
214 ALABAMA;
Crawford v. The Branch Bank at Mobile.
ing." It is concedefl that the law is as here stated, but it is
denied that the notary in New York was authorized to send
notices to the plaintiff to be addressed to the defendant or other
parties, or that the notary could give notice to the defendant by
letter, otherwise than by the direct course of mail.
The record does not show that the plaintiff had any interest
in the bill either as principal or agent at the time of its disho-
nor, and it cannot be said that the notices were properly sent
to it, or that it was authorized to give notice to any party to
the bills. Perhaps the protest may impart the necessary infor-
mation on this point. But if the plaintiff was a party subse-
quent to the defendant, it cannot be questioned that it was com-
petent 'for the notary protesting the bills to send notices to the
Branch Bank. Whitman & Hubbard v. The Farmers' Bank
of Chattahoochie, 8 Porter's Rep. 258, impliedly admits that
such is the law. Carson v. The Bank of Alabama, 4 Ala. Rep.
148, proceeds upon the same hypothesis; for a notice thus sent
in that case, had been deposited in the post office, and no ob-
jection was made to its sufficiency. [See also Foster v. Mo-
Donald, 5 Ala. Rep. 376.3
In Freeman's Bank v. Perkins, IS Maine Rep. 292, the
Court say, where the cashier of a Bank is resorted to, by the
proprietor of a bill to obtain payment, " he is to be considered
as it respects the time of causing a protest to be made, and of
giving notice, as a distinct holder or party to the instrument."
It' is however intimated that if either the collecting agent or
notary know where the party to be charged resides, notice
should be sent directly to him; but if they are ignorant of his
residence, the notice may with propriety be directed to the
holder of the paper. The Court further held, that it was com-
petent for the holder to send a notice of his own by the mail of
the succeeding.day ; but where he sent the notice prepared and
transmitted to him by the notary, the indorser was adjudged
to be discharged, because such notice was not forwarded by a
mail that left two hours after its jeceipt. This decision is ex-
ceedingly unsatisfactory. With the first point deiermined by it,
we have now nothing to do; the second, we have seen, is not in
harmony with our own adjudications. The third, is sustained
by no authority, which has ever come under our notice. In
JUNE TERM, 1844. 215
Crawford T. The Branch Bank at Mobrie.
distinguishing between a notice prepared by the notary him-
self and one made out by the holder of paper, the Court have
acted upon reasoning too refined to be made the basis of a le-
gal principle ; and we cannot therefore recognize it as author-
itative.
Under the circumstances of this case, there was no necessity
for referring to the jury the sufficiency of the notice to identify
the bill. It identified with reasonable certainty both the bilfs
by stating the name of the drawee and their amounts ; and
there; was no evidence showing that the defendant had drawn
any other bills for the same or a different amount on Dickin-
son. The genuineness of the notice conceded, the identifica-
tion of the bill was a necessary conclusion. The case of the
Ontario Bank v. Petrie, 3 Wend. Rep. 456, is unlike the pre-
sent. There the note was due on Sunday, the 31st of August,
the demand was made on Saturday^ the 30th, and notice sent
by the first mail. The notice dated the thirtieth states pay-
ment was demanded last evening instead of this evening;
and the Court said that the Circuit Judge "was right in sub-
mitting to the jury the question whether the defendant was
misled." In that case it could not be assumed from the notice,
that the defendant was not miskd, and henCe the propriety of
directing thennquiry of the jury to the point. But here under
the proof there was no ambiguity, and the Court might very
well have informed the jury, that if they found the other facts
in respect to the notice in favor of the plaintiffs, the notice itself
in the absence of countervailing proof, sufficiently identified
the bill. This view does not at all trench Upon the powers of
the jur/. It is but the common practice of instructing a jury
what are the legal conclusions from established facts. In cases
where there is room for doubt as to what construction should
be placed upon a written notice, and what the party to whom
it was addressed should understand by it, the question should
be referred to the jury.
By the third section of the act creating the Branch of the
State Bank at Mobile, it is provided, that the president of that
institntion shall always be one of the board for the transaction
of business, " except in cases of sickness or necessary absence,
in which event the board may appoint a president pro tem-
pdre." In Bancroft v. The Branch Bank at Mobile, I Ala.
S16 ALABAMA.
Crawford v. The Branch Bank at Mobile.
Rep. N. -8. 230, we held, that the certificate of the president
pro tern., was competent to show that a note sought to be re-
covered by notice and motion under the charter, was bonafide
the property of the Bank. In Roberts, et al. v. The State
Bank, 9 Porter's Rep. 312, it was decided that it was not ne-
cessary, that the certificate of the president elected by the Le-
gislature should be authenticated by the seal of the corpora-
tion ; that the Court would judicially recognize his official cha-
racter, and intend in the absence of all proof on the point that
his signature was genuine. . This decision was made upon the
ground that the President, was quasi a public officer, and the
evidence of his election and qualification was shown by the ar-
chives of the State. But in Crawford v. The P. & M. Bank
of Mobile, at the last term, we considered, that as the State
had no interest in that institution, and no agency in electing its
officers, it could not be judicially known that certain persons
who had acted as president and commissioner, were in point
of fact such, officers; and that their official character should be.
shown by proof.
Neither of the cases cited is like the present in its facts. la
Bancroft's case, the official character of the president pro tern.
was impliedly, if not expressly conceded. In Robert's case,
the president derived his office from the Legislature ; and in the
last, the Legislature had no interest in the corporation or any-
thing to do with the election of its officers. Here we are re-
quired to know that an individual of the same name who
makes t,he certificate was elected a director, but we are not in-
formed that he was president pro tern, when he made the cer-
tificate. There can be no evidence of the fact in any of the
public offices. Under these circumstances it cannot be intend-
ed, that he was authorized to exercise the character assumed.
His act does not prove that he had the sanction of the board
to sustain him, and as this was indispensable to its regularity,
it should have been established by proof. The most liberal
presumption in favor of what has been done by persons in
public stations would not allow such proof to be dispensed with.
This closes the view, which the argument for the plaintiff
in error required us to take of this cause the result is, that the
judgment of the Circuit Court is reversed and the cause re-
manded.
JUNE TERM, 1844. 217
T. & J. Kirkman, et al. v. Vanlier.
We observe that the clerk of the Circuit Court has impro-
perly sent up some of the original papers with the transcript,
which will be indispensable upon another trial below: the
clerk of this Court will therefore deliver them to the clerk of
the Circuit Court, the attorney of the Bank, or the order of
either of them, upon exact copies being substituted and attach-
ed to the transcript.
T. & J. KIRKMAN, ET AL. v. VANLIER.
1. Where matters of account between the complainant and defendant are compli-
cated, embracing the transactions of several years, relating to the employment
of several steamboats upon their joint account, and made up of many charges,
for and against each other, a Court of equity may entertain the complainant's
bill for a settlement of accounts, and the recovery of a balance. '
2. Quere? When a demand is primarily enforceable in equity, is it not competent
for the complainantin such case to ask a decree against his debtor, and in the
same bill to seek to subject debts due to the latter to he payment.
3. The remedy by attachment for the recovery of a' legal demand being given by
atatute to one non-resident against another, .Courts of equity by analogy must
afford the same facility of collection to a creditor whose claim is of an equitable
nature.
4. Where an wrder of reference to the registeHs general, viz: of " the matters of
account between the parties," without giving any direction as to the mode of
taking testimony, whether any should be taken, or whether the same should be
specially reported, it is competent for cither party to lay before the register the
books showing the state of accounts which it is the object of the suit to adjust,
and also to examine witnesses viva voce in aid or explanatory thereof.
5. Srrnble Under a general reference to a register to ascertain a fact, he should
report his conclusion and need not embody rhe evidence upon which it ia
, founded.
6. The rule of practice declaring that exceptions to testimony taken by the register
must be taken before him, and certified in his report, and if not so taken the
exception is waived ; consequently, to authorize the Chancellor to sustain an
exception, it must appear from the report to have been regularly taken, or at least
to be well founded.
28
218 ALABAMA.
T. & J. Kirkman, et ai. v. Vanlier.
7. Where a bill is filed for the purpose of subjecting a sum of money in the hands
of a third person, to the payment of a debt due the complainant, if such person
is enjoined from using if, does not offer to bring it into Court, &c., but insists
upon his right to retain it both as against the complainant and his debtors he
will be charged with interest.
8. A bill filed by a defendant to a su.it in equity, against the complainant, recited
the pendency of jhe original cause, yet did not pray that it might be regarded
as a cross bill, or that the suits might be brought to a hearing at the same time ;
was filed after an order of reference and report of the register in obedience
thereto, but did not ask an'injunction, or other order to stay proceedings in the
original cause, and no such order was made ; nor did the complainant's therein
propose to submit to a hearing on .bill and answer : Held that the Chancellor
might with strict legal propriety, refuse to consider such a bill as a cross suit ;
and if it was an original independent bill, a decree dismissing it could not be
revised on a writ of error, sued out in the original cause.
9. Where a fact is alledged in a bill, which prima facie must be within the know-
ledge of the defendants, if he omit to notice it in his answer, he shall be held to
have admitted it, at least so far as to dispense with proof from the complainant
to establish its truth. .
Writ of error to the Court of Chancery sitting in Lauderdale
County.
IN July, 1834, the defendant in error filed his bill in the Cir-
cuit Court of Lauderdale, against Hugh Findren, Thomas and
James Kirkman, and Jojhn Stacker, alledging that the former
was indebted to the complainant in the sum.of three thousand,
four hundred and fifty-nine dollars and ninety-six cents. That,
that indebtedness occurred in consequence of .advances made
by Messrs. E. Webb & Co. for the account and benefit of Fin-
dren, and 'for his proportion of losses sustained in the purchase
and sale of steamboats; in the running of which they were inter-
ested as part owners and joint proprietors. The balance of the
account is the result of debits and credits, but has never been
adjusted by settlement between the parties. It is further al-
ledged that the complainant was a member of the firm of E.
Webb & Co.; that, that concern has been dissolved, and in
consideration of an assumption of its liabilities by him, the
debt due by Findren, as well as other demands, have been as-
signed to the complainant, with authority to use the firm name
in their collection.
. The bill further states, that Findren and E, Webb & Co.
caused to l?e built the steamboat "Mohawk;" the former be-
ing proprietor of four twenty-fourths, and the latter of the
JUNE TERM, 1844. 219
T. & J, Kirkman, et al. v. Vanlier.
residue of th* shares of the boat. Afterwards Messrs. E. Webb
& Co. disposed of their shares, as follows, viz: nine.twenty-
fonrths, to Messrs. ,T. &.J. Kirkman, and 'the eleven remaining
shares to John Stacker; which several purchasers, together
with Findren, run the " Mohawk" for freight during the busi-
ness season of 1833-4. That Messrs. T. & J. 'Kirkman were
the agents of the boat ; that its earnings were large, and the
share of Findren is still in their possession.
It is also alledged, that Findren is a non-resident and insol-
vent, and that the only means known to the complainant of
obtaining satisfaction of his demand is to subject the money
due Findren in the hands of T. & J. Kirkman, to its payment.
The complainant prays, that inasmuch as his accounts with
Findren are of a nature too complicated to be the proper sub-
ject of adjustment in a Court of law, an account may be taken
in equity and a decree rendered in his favor for so much as
may be found due : that in the meantime Messrs. T. & J.
Kifkman be enjoined from settling with Findren, or paying
him any thing due upon the account of the " Mohawk ;" and
that such decree as' the complainant may obtain against Fin-
dren may be satisfied pro tanto from his funds in the hands of
the Messrs. Kirkman.
Findren admits in his answer, that he is indebted to the com-
plainant, the amount charged with interest ; but he cannot
state what amount of his funds are in the hands, of the Messrs.
Kirkman he refers to' the books kept on the boat to show
his proportion of the profits ; in addition to which, he insists
that he was entitled to twelve hundred dollars, for his services
as master of the " Mohawk," for the business season of 1833-4.
Messrs. T. & J. Kirkman admit that 'they with Fincjren and
Stacker were joint owners of the steamer " Mohawk," as al-
ledged in the bill, and that they were agents of the boat at
Florence during the business season of 1S33 and '4; as such
they made heavy advances for repairs and other expenses, so
that they do not admit they have in their hands any funds be-
longing to Findren, beySnd the division of profits they are en-
titled to retain in virtue of their shares. They aver that there
js a. large amount of accounts still due the boat, and heavy
demands made of the proprietors thereof for losses sustained
by persons who shipped merchandise on her ; for the recovery
220 ALABAMA.
T. & J. Kirkman, et al. v. Vanlier.
of damages thus sustained suits have been brought, and are
now pending in the Federal Court of West Tennessee, and at
New Orleans. The nominal amount due the defendant Fin-
dren as shown by an account current is twenty-five hundred
and sixty-three 76-100 dollars, subject to deductions which re-
duce it to the sum of one thousand and seventy-eight 13-100
dollars. In addition "to this, these respondents insist that they
are entitled to compensation for trouble arid expense in col-
lecting the debts due the " Mohawk."
Stacker failed to answer the bill, but as to him publication
was duly made, as against a non-resident, and the bill taken
for confessed.
Upon the establishment of separate Chancery Courts, this
cause was transferred to that tribunal, and an 
