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REPORTS
OF
CASES ARGUED AND DETERMINED
IN THE
SUPREME COURT OF ALABAMA,
During June Term, 1847, and part of January Term, 1848.
^"7 2-
VOLUME XII.
J. J. ORMOND, REPORTER.
TUSCALOOSA :
PRINTED BY M. D. J. SLADE.
1848.
/
Entered according to act of Congress, in the year 1848,
BT J. J. ORMOND,
In the Clerk's Office of the District Court of the United States for the
Middle District of Alabama.
OFFICERS
OF
THE SUPREME COURT,
DURING THE TIME OP THESE DECISIONS.
HENRY W. COLLIER, CHIEF JUSTICE.
JOHN J. ORMOND, )
HENRY GOLDTHWAITE,* V ASSOCIATE JUSTICES.
EDWARD S. DARGAN, )
* Judge Goldthwaite died 19th October, 1847, and Hon. Edward S. Dargan was elected to
fill the vacancy, on the 16th day of December, 1847.
THOMAS D. CLARKE, ATTORNEY-GENERAL.
1 his death, August 25, 1847. WILLIAM H. MART
incy the Governor, to fill the vacancy.
JAMES B. WALLACE, CLERK.
Until his death, August 25, 1847. WILLIAM H. MARTIN, Eeq. was appointed by Hi
Excellency the Governor, to fill the vacancy.
Abercrorrbie and Rumph, 64
Adams v. Garrett, et al 229
Adams and Huntington, use, 834
Aikin v. Bloodgood 221
Alderson v. Harris & Merrell 580
Alexander and Holford 280
Allen andClaunch 159
Alvis and Scales 617
Amarine and McCaskle 17
Anderson & Adams v. Bright & Led-
yard 478
Armstead and Forward, et al 124
Baldwin v Leftwich 838
Baldwin and Beckwith etal 720
Ball $ Crommelin and West, O.&Co340
Bancroft and Park 468
Bank of Norfolk and heirs of Holman369
Bank, Planters & Merch. and State 657
Bank of the State of Ala. v. Come-
gys, etals 772
Bank, State and Dent and Pattison 187
Bank, State and Dent et al 275
Bank, State and Lyon etal 508
Bank, Br. at Decaturv. Donelson. .741
Decaturand Simerson 205
Decatur and Posey and
Coffee 802
Decatur v Hawkins 755
Mobile and Dickinson . . 54
Mobile and Hallett
Walker, adm'rs 193
Mobile v. Tillman 214
Mobile and Del Barco 238
Mobile and Furness et a!367
Mobile and Davis et al 463
Mobile and Boggs' adm 494
Mobile and Terrell 502
Mobile and Wicks 694
Mobile v Hallett &. Wal
ker 671
' ' Montgomery v. Hodges
Barge and Hill 687
Bates et al andfiary 544
Bean v. PearsflR 59
Beckwith et air. Baldwin 72(
Boyd and Easly.admr 684
Bender v..JR0ynolds......
Berry, use, v. Hardman ....
Bevil and Fields, admr
Bloodgood and Aikin 221
Bobo, admr and McMekin 268
Boggs' admr v. Br. Bank at Mobile 494
Bonneau v. Dickinson & Co 475
Boyd, et al. use, and McCord 760
Bradford v. Marbury 520
Brashear and Gooch and Gilbert.... 191
Bright & Ledyard and Anderson &
Adams 478
Briggs and Dickson 217
Brooks & Wilson v. Harris, assignee 555
Brown and Chambers et al 697
Burnett's admr and Johnson 743
Burns and Randle v. Minter 316
Burt v. Cassety 734
Bryant v. Craig 354
Byrne and Case and Eslava 115
Cabiness's creditors and King, admr 598
Campbell & Cleveland and Quigley 58
Capshaw et al v. Fennell 780
Carroll & Beall v. Mayor and Alder-
men of the City of Tuscaloosa, 173
Carter and Ottv. Mundy 132
Case and Eslava v. P, & C. Byrne 115
Cassety and Burt 734
Chambers et aland Brown 697
Chandler and Graham and Aber-
crombie 829
Claunch v. Allen 159
Clark and Strode et als 621
Clarke v. The State 492
Clarke & Co. v. Windham 798
Comegys et al and the Bank of the
State of Alabama 772
Cole tf- Co. and Goodgame 77
Conly and McKinstry 678
Cook v. Kennerly $ Smith 42
Cook v. Davis 551
Collins and Johnson and wife et al 322
Coopwood et al v. Wallace 790
Couch v. Terry's admrs 225
Cowart v. Howard & Flournoy 265
Craig and The State 363
Craig and Bryant 354
Crumpton v. Newman 199
Crutchfield et al and Hudson 433
Dansby and Scott, Harper & Co 714
Davis and Dunnet al 135
Davis et al v. Br. Bank at Mobile ...463
Davis and Cook 551
Del Barco v. Br. Bank at Mobile ...238
Dent etal v. The State Bank 275
Dent and Pattison and State Bank 187
Desha, Smith ^ Co. v. Holland 513
Dickinson v. Br. Bank at Mobile . . 54
TABLE OF CONTENTS.
Dickinson & Co. and Bonneau .475
Dickerson and Dulany 601
Dickson v. Briggs 217
Donelson, admrand B. B. at Decatur741
Driver and Riddle 590
Dulany v. Dickerson 601
Dunham v. Grant 105
Dunn et al v. Davis 135
Easly, admr of Bell v. Boyd 684
Elliott and Johnson 112
Ellison etal v. Mounts 472
Emanuel v. Martin 233
Eslava and North .240
Evans and Thompson, guardian 588
Falkner v. Jones and Leith 165
Fambro v. Gantt 298
Farley v. Gilmer et al 141
Feider v. Harper 612
Fennell andCapshaw etal 780
Fields' admr v. Bevil 608
Flora T. Mennice 836
Forward et al v. Armstead 124
Furness et al v. Br. Bank at Mobile 367
Gaffney v. Williamson, admr 628
Gamble and Hutchinson, admr 36
Gant and Fambro 298
Gardner's admr v. Morrison 547
Garner et al v. Reavis 661
Garrettet al and Adams 229
Gary v. Bates et al 544
Gibbs v. Jemison, admr 820
Gilbert v. Brashear and Goocb 191
Gilmer et al and Farley 141
Goodgame v. Cole & Co 77
Gorman and Nairne 33
Governor and Lester 624
Graham and Abercrombie vChandler829
Grant and Dunham 10o
Graves and Perry 246
Griffin v. Stoddard and Murphy 583
Green and McMahan 71
Grimshaw and Brown v. Walker 10
Hair and Posey 567
Hallett & Walker ex'rs v. Br. Bank
at Mobile 193
Hallett & Walker and Br. Bank at
Mobile 671
Hardman and Berry, use 604
Harper and Feider 612
Harris, assignee, and Brooks and
Wilson 555
Harris &. Merrell and Alderson 580
Harrod & Flournoy v. Cowart 265
Hawkins, admr and Br. B. at Deca-
tur 755
Hawkins v. May 673
Hays and Maull 499
Hazard v. Jordan J 180
Heifner v. Porter # Simmons 470
Hill, uee, and Sawyer 575
Hill v. Barge 687
Hodgesv. Hoole 177
Hodges and B. Bank at MontgomeryllS
Holford v- Alexander 280
Holland and Desha, Smith * Co ...513
Holman's Heirs v. Bank of Norfolk 369
Hoole and Hodges 177
Hooper and McCurry 823
Hosea v. McCrory 349
Howard & Flournoy and Cowart . . 265
Howell v, Reynolds 128
Howard, trus. and Jasper and Maclin 652
Hudson and Hudson v. Milner 667
Hudson v. Crutchfield et al 433
Hughes v. The State 458
Hunter v. O'Neil 37
Huntingdon v. Adams 834
Hutchinson, admr v. Gamble 36
Ingersoll and Pinkard 441
Isheand Waddle etals 308
Iverson and Sheppard etal 97
Ivey v. The State 276
James and Newman and Newman 29
Jasper and Maclin v, Howard, trus. 652
Jemison, admr and Gibbs 820
Johnson v. Burnett's admr 743
Johnson andElliott 112
Johnson and The State 840
Johnson and Wife et als v Collins 322
Jones, adm'r and Swift 144
Jones and Leith and Falkner 165
Jordan and Hazard 180
Jones < Co. v. Jones 244
Jones and Jones $ Co 244
Jordan v. Mead 247
Kainand Walke 184
Keenan v. Strange, et al 290
Kennedy & Smith and Cook 42
Kiddand Tulliss 648
Killen and Sims 497
King, admr v. Cabiness's creditors 598
Kinnard v Thompson 487
Komegay v.Salle 534
Landreth's admr v. Landreth's dist. 640
Landreth's dis. and Landreth's admr 640
Leftwich and Baldwin 838
Lesterv. The Governor 624
Lloyd v. Pace 637
Lore &McRae 444
Lyon et alv. The State Banh 508
Marbury and Bradford 520
Martin and Emanuel 533
Mason & Chambers v. Moore & Tu-
lane .Jfr 578
Maull v. Hays /* 499
May and Hawkins.. 673
Mayt^^id Aldermen of Tuecaloosa
and Carroll & Beall... :!**.. 173
McCzMfuse, v. Price. 753
McCain's adm'x v. McCain's dij....510
McCain's dis. artd McCain's adm'x 510
McCall and MOSB 630
TABLE OF CONTENTS.
McCaskle v. Amarine 17
McCrory and Hosea 349
McCord v. Boyd,et al, use 760
McCurry v. Hooper 823
McDaniel v. Reed 615
McGehee and MeGehee 83
McGehee v. McGehee 83
McKinstry v. Conly 678
McLane v. Miller 643
McLelland v. Ridgeway 482
McLeod v. Powe and Smith 9
McMahan v. Green 71
McMekinand Bobo, admr 268
McRae and Lore 444
Mead and Jourdan 247
Melloy et al v, Sheppard 561
Mennice and Flora 836
Merrell v. Smith 569
Miller and McLane 643
Mills^Co. v. Stewart 90
Minter and Burns and Randle 316
Milner and Hudson and Hudson 667
Morrison and Gardner's admr 547
Moore & Tulane and Mason &Cham-
bers 5
Moore v. The State 7
Moss v. McCall 63'
Mounts and Ellison etal 472"
Mundy and Carter and Ott 132
Nairne and Gorman 338
Newman v. James and Newman 29
Newman and Crumpton ..199
Norsworthy and Upchurch 532
North and Eslava 240
O'Neil and Hunter 37
Pace and Lloyd 637
Patterson and Sawyer 295
Park v. Bancroft 468
PearsaU and Bean 592
Peck * Clarke and Wallace and
Lewis 768
Perry v. Graves 246
Pickett v. Stewart 202
Pierson v.The State 149
Pinkard v. Ingersollet al 441
Porter & Simmons and Heifner 577
Posey v. Hair 567
Posey and Coffee, exrs v Decatur B. 802
Powe and Smith and McLeod 93
Price and McCaleb 753
Prince v,Puckett,cx'x 832
Puckett, ex'x, and Prince 832
Puryear v. Puryear 13
Puryear and Puryear 13
Quigley v. Campbell & Cleveland... 58
Handle & Minter 316
Reavis and Garner et als 661
Reed and McDaniel 615
Reynolds and Howell 128
Reynolds and Scarborough 252
Reynolds and Bender 446
Rhea & Ross and Wallis 646
Riddle v. Driver 590
Ridgeway and McLelland 482
Rowdon v. Young, admr 234
Rumph v. Abercrombie 64
Salleand Kornegay 534
Sawyer and Patterson 295
Sawyer v. Hill, use 575
Scales v. Alvis 617
Scales etal and Thomason 309
Scarborough v. Reynolds 252
Scott, Harper & Co. v. Dansby 714
Scott, Slough & Co, v. Stallsworth, 25
Sergeant and Wilson 778
Shelton v. Simmons 466
Sheppard etal and Iverson 97
Sheppard v. Melloy et al 561
Sidney v. White 728
Simerson v. Br. Bank at Decatur . .205
Simmons and Shelton 466
Sims v. Killen 497
Smith and Merrell 569
Spinks and Thompson 155
Stallsworth and Scott, Slough & Co. 25
Stewart and Mills & Co 90
Stewart and Pickett 202
Stewartv. Weaver 538
Stoddard and Murphy and Griffin . . 783
Strange et al and Keenan 290
Strode et alsv. Clarke 621
Swift and Jones, admr 144
Terrell v. Branch Bank at Mobile... 502
Terry's admrsand Couch 225
The State and Clarke 492
The Statey. Craig 363
The State and Hughes 458
The State and Iv^f!T 276
The State v. Johnson 840
The State and Moore . . . .764
The State and Pierson 149
The State and Worrell 732
The State and Pl.andMerch.Bank657
Thomason v. Scales etal 309
Thompson, guardian v. Evans 588
Thompson and Kinnard 487
Thompson v. Spinks 155
Tillman and Branch Bank at Mobile 214
Tulliss v. Kidd 648
Upchurch v. Norsworthy 532
Waddle etalv. Ishe 308
WalkeandKain 184
Walker and Grimshaw and Brown 101
Wallace and Coop wood etal 790
Wallace and Lewis v. Peck $ Clark 768
Wallis v. Rhea & Ross 646
Ward and Whitehurst 264
Weaver and Stewart 538
West, Oliver & Co. v. BallfcCrom-
melin 340
White and Sidney 728
Whitehurst and Ward 264
Wicks v. The Br. Bank at Mobile... 594
Williamson, admr and Gaffney 628
Wilson v. Sergeant 778
Windham and Clark & Co 798
Worrell v. The State 732
Young, admr and Rawdon 234
REPORTS
OF
CASES ARGUED AND DETERMINED
JUNE TERM, 1847.
McLEOD v. POWE AND SMITH.
1. It is no objection to a count that it states the facts from which the conclu-
sion of indebtedness arises, instead of stating the same conclusion in a
common count.
2. Under a special contract to sell slaves to one upon the payment of a sum
certain at a specified day, the title vests in the party to whom they are to
be sold by the tender of the money, and when the tender is made by an
administrator and refused, yet the administrator by the act of tender and
refusal becomes the bailee of the money, and as such may be sued by the
executor of the other party, where he has successfully sustained an action
of detinue on the ground that the title vested in the estate by the act of
tender.
Writ of Error to the Circuit Court of Wilcox.
ASSUMPSIT by McLeod, as the executor of R. G. Gordon,
against Powe & Smith. The cause of action set forth in the
declaration is this :
On the 7th February, 1842, the marshal of the United
States for the southern district of Alabama, having an exe-
cution in hand issued from the circuit court for that district,
in favor of one Clapp for $3558, with interest from the 4th
January, 1838, against one A. K. Smith, levied the same on
certain slaves as his property. Whilst the slaves were thus
2
10 ALABAMA.
McLeod v. Powe and Smith.
under levy, Gordon, in consideration of the natural love and
affection which he bore to his sister, she being the wife of
said A. K. Smith, and for other considerations, contracted
and agreed with Smith, both verbally and in writing, dated
the 12th March, 1842, to become the purchaser of the slaves
at the marshal's sale, and on the llth March, 1842, did be-
come the purchaser at that sale of the slaves, at the sum of
$4832. It was further agreed to leave the slaves in the pos-
session of Smith until the 1st of January, 1844. It was fur-
ther agreed, that on the payment of the said sum of $4832
by Smith to Gordon, on the 1st January, 1844, that the said
slaves should revest in, and the title be reconveyed to the
said Smith. Gordon and Smith both departed this life previous
to the 1st January, 1844, and previous to any payment of the
said sum, and after the death of Smith, the slaves went to
the possession of the defendants as administrators of his es-
tate, as did also the written agreement evidencing the said
contract for reconveyance. On the 26th December, 1843,
the defendants, with a view to carry out the said contract,
tendered to the said plaintiff, as the executor of Gordon, the
sum of $4832. This tender the plaintiff refused, and the
said slaves, on the 1st January, 1844, were, and ever since
then have remained in the possession of the defendants.
On the 1st January, 1844, the plaintiff demanded the
slaves from the defendants, and afterwards, on the 12th De-
cember, 1844, commenced an action of detinue against the
defendants to recover the same in the circuit court of Wilcox
county. To this action the defendants pleaded the tender
aforesaid, and by reason of this plea and the proof to sustain
it, a verdict was found for the defendants at the spring term,
1846.
The declaration then proceeds with the averment that the
defendants have never paid the plaintiff the said sum of
$4832 so tendered as aforesaid, but that they still hold the
same as his money as executor. Also that the estate of
Smith was represented by the defendants as administrators
to be insolvent, and it was so declared by the proper court.
That in the schedules, &c. of this report, no return was made
of said money as assets of Smith's estate. It then proceeds
to aver a demand of the said sum from the defendants on the
JUNE .TERM, 1847. 11
McLeod v. Powe and Smith.
1st January, 1846, and their promise to pay the plaintiff as
executor, and concludes with a super se assumpsit.
The defendants demurred to this declaration, and the court
gave judgment in their favor. This is the only error as-
signed.
E. W. PECK, for the plaintiff in error insisted
The legality of the tender operated to vest the title to the
slaves in the defendants as the administrators of A. K. Smith,
and the money tendered by the same act ceased to be assets
of the estate of the said A. K. Smith in the defendants'
hands, (which it was before), and thereby became a part of
the estate of the plaintiffs testator, R. G. Gordon, notwith-
standing his refusal to receive it ; it therefore remained with
the defendants, not as administrators, but as mere deposita-
ries for the use of the plaintiff as executor as aforesaid, and
on his demand they became personally liable for its delivery,
and consequently this action was properly brought against
them, not as administrators, but personally. [Legro v. Lord,
1 Fairf. 161; 3 U. S. Dig. 514, <> 24; Chipman on Con-
tracts, 86, 87, 196, 209-10-11-13-16 and 19, and 88, and the
cases referred to by this author ; Lamb v. Lathrop, 13 Wen-
dell, 97.]
No counsel appeared for the defendants in error.
GOLDTHWAITE, J. 1. The pleader here, instead of
relying on the general allegations that the defendants have
received money to his use or admitted their indebtedness by
an account stated, has preferred to state the facts from which
he deduces their indebtedness as a legal conclusion. We
are not aware of any sufficient reason why this course may
not be pursued, as, when all is said against it, no other ques-
tion is presented by the demurrer than would be if the same
facts were shown in evidence and a general charge demanded
as to their sufficiency to entitle the plaintiff to recover on the
common counts. We shall therefore proceed to consider
whether the facts stated authorise the party in suing the de-
fendants personally, and not in their representative character.
2. The result of the allegations is, that the plaintiffs tes-
12 ALABAMA.
McLeod v. Powe and Smith.
tator entered into a contract to convey the title to certain
slaves to the defendant's intestate, if a certain sum of money
was paid him at a certain time that this money was ten-
dered by the defendants, as administrators, to the plaintiff as
executor that it was refused by him and that this refusal
had the effect to destroy his title as executor to the slaves,
as well as to vest them in the defendants as administrators of
their intestate. The legal question presented is, whether
the defendants by this act of tender are to be held responsi-
ble in their individual capacity for the money which the
plaintiff then refused to accept, but which he subsequently
demanded.
There is no question that the effect of the tender was to
revest the title to the slaves agreed to be conveyed on the
payment of the specified sum at the appointed time. This
is the one of the points decided in Sewall v. Henry, 9 Ala.
Rep. 24. The consequence of the reinvesting of the title is,
that the plaintiff by the same act became invested with the
title to the money. Thus, in Lamb v. Lathrop, 13 Wend.
95, there had been a contract to deliver specific articles, and
although the court considered the contract was at an end
when the articles were tendered, yet they held the effect of
the tender and refusal was to create the relation of bailor and
bailee between the parties. By the tender in this case the
money which previously belonged to the estate of Smith be-
came the property of the estate of Gordon, and the defend-
ants, after the tender, held it, not in their capacity of admin-
istrators of Smith, but as individual bailees of the plaintiff as
executor of Gordon. In this view it seems clear the action
is sustainable against the defendants as individual bailees of
the money, and that as such they are responsible to the exe-
cutor of Gordon.
Judgment reversed and cause remanded.
JUNE TERM, 1847. 13
Puryear v. Puryear.
PURYEAR v. PURYEAR.
1. When a husband permits the wife to place the proceeds of the hire of a
slave, out at loan for her own use, which after his death, was paid to her
by the borrower, the representative of the husband cannot recover it from
her. But the husband could not make such a gift to the prejudice of cre-
ditors, either during his life, or to take effect after his death.
Error to the Circuit Court of Monroe.
t
ASSUMPSIT by the plaintiff in error, administrator de bonis
non of Alexander B. Puryear, against the defendant in error,
for money had and received, &c.
From a bill of exceptions, it appears, that the defendant,
who is the widow of the plaintiffs intestate, during the life-
time of her husband, had monies in her hands, which she
loaned out, to the amount of $ , and that after the death
of her husband, this money was repaid to her.
The defendant on her part produced, and read to the jury,
a will, containing the following clause : " I give and be-
queath to Mary F. Puryear, during her life, one negro man
Davy, and if the said Mary should die without issue, it is my
desire, that the said negro should return, and be equally di-
vided amongst Louisa C. Dailey, Joseph B. Edwards, and
Osborn Edwards ; but if she should have a natural heir of her
body, then at her death, I give and bequeath the said negro
man Davy, to her heirs forever. I appoint Samuel Dailey
trustee, to hold the said negro Davy for the benefit of Mary
F. Puryear."
She also proved, that with the consent of her husband, she
hired out the negro Davy for many years ; and that part of
the time, her husband hired out the slave and paid her the
hire, and that the husband, during his life, acknowledged the
slave to be her property this declaration was made in refer-
ence to the will. That he recognized her right to lend the
14 ALABAMA.
Puryear v. Puryear.
money she had received for the hire of the negro, and to re-
ceive repayment of the same.
On this evidence, the court charged the jury, that the de-
fendant took a separate estate in the slave, under the will,
and was therefore entitled to his earnings.
Further, that if this were not so, yet if the husband recog-
nized such estate as being in the wife, and allowed her to
collect, and lend out the proceeds thereof, as her own, what-
ever might be the right of creditors to pursue such proceeds,
the executor could not recover this fund as assets of the es-
tate.
This was excepted to, and is, and is now assigned as error.
DARGAN, for plaintiff in error.
The will of the father of Mrs.j Puryear did not give her a
separate estate in the slave David. [8 Porter, 72 ; 2 Ala.
Rep. 152.
A contract between husband and wife is void at law. [4
Kent, 129; 4 Dana, 142; also, 1 Black. Com., title Husband
and Wife ; 10 Peters, 583.]
PECK, contra, cited the case of McGrath v. The Adm'rs of
Robertson, 1 Desau. 445 ; Smilie v. Reynolds, et al. Adm'rs,
&c., 2 Desau. 66; Clancy's Rights of Married Women, 277,
278 ; Livingston v. Livingston, 2 J. Ch. Rep. 537.
If it be conceded that the husband, during his life, might
have asserted his right to this money, yet as he did not do
so, the executor cannot do it, unless it be necessary for the
payment of debts. [2 Story Com. Eq. 1375.]
ORMOND, J. The first charge of the court cannot be
supported. There is nothing in the bequest, from which it
can be inferred, the husband was to have no dominion or
control, over the life estate of his wife, in the slave; she can-
not therefore have a separate estate in it. This has been re-
peatedly adjudged by this court, and especially in the case of
Cook v. Kenrierly, at this term, where all the decisions of this
court, upon this subject, are considered.
We are then to consider, whether the facts shown upon
the record, establishing that the husband permitted his wife
JUNE TERM, 1847. 15
Puryear v. PuryeAr.
to take the hire of the slave, during the coverture, authorizes
her to hold it against the executor of the husband.
The husband and wife, being in legal estimation but one
person, the former cannot make a gift, or conveyance of pro-
perty to her, which she can enforce at law; though a court
of equity, when there is sufficient consideration for the agree-
ment, may, and generally does give effect to it. But if the
husband makes an actual gift of money to the wife, which
she retains until after his death, though he could have re-
claimed it in his lifetime, and although it would certainly be
liable to the payment of his debts, we think the personal re-
presentative cannot recover it from her.
This principle appears to be settled in Hastings v. Doug-
lass. 3 Croke Charles, 343. The question arose in that case,
upon a devise made by a husband, of his wife's jewels, giv-
ing her the use of them during her widowhood, with remain-
der to his daughter. Berkley, and Jones, Justices, argued,
that the act of the husband during his life, by which the
wife was permitted to use the jewels to deck her person, was
in law a gift, and although he might have disposed of them
in his lifetime, he could not make such disposition by wilL
Croke, and Richardson, maintained, that the husband could
dispose of them by will, as well as by any act during his
life ; but the inference from the whole case is, that in 'the
absence of any such disposition by the husband, the wife
would be entitled to them after the husband's death.
It appears now to be settled, that a gift of jewels to a mar-
ried woman, by a stranger, will be considered as being given
to her separate use, and that if given to her by the husband,
she may hold them against every one, but the creditors of
the husband. [Ridout v. Lord Plymouth, 2 Atk. 104 ; Gra-
ham v. Lord Londonderry, 3 Ib. 393 ; Tipping v. Tipping, 1
P. Will. 729.
So it has also been held, that where the husband permits
the wife to retain the excess, over the sum allowed for the
expenses of the family, by her thrift and management, she
will be entitled to hold it against his personal representative :
and where she had lent a portion of the money thus saved to
the husband, was permitted to come in as a creditor, after his
death. [Slanning v. Style, 3 P. Will. 337.] The Lord
ALABAMA.
Puryear v. Puryear.
Chancellor in this case observed, " that it was the strongest
proof of the husband's consent, that the wife should have a
separate property in the money arising by these savings, in
that he had applied to her, and prevailed with her, to lend
him this sum, in which case he did not lay claim to it as his
own, but submitted to borrow it as her money."
This case is quite as strong in favor of the wife, as any of
those cited. The husband in this case doubtless considered
that the intention of the testator was to give the wife a sepa-
rate estate in the slave, and therefore abstained, not only from
appropriating to himself the services of the slave, but to place
the matter beyond all doubt, and to prevent all controversy
about the right of the wife, by his own act permitted the
wife to place the proceeds of the hire of the slave upon loan
for her own use, and benefit. He might doubtles have re-
voked the consent thus given at any time during his
life ; it is equally clear he could not make such a gift to
the prejudice of his creditors, either during his life, or to take
effect after his death. Whether he could dispose of it by
will, we are not now called on to decide, through it would
seem by analogy to the right of the wife to her paraphernal
or dotal property after her husband's death, that he could
not ; but that the personal representative of the husband could
not assert a claim against the wife, in such a case as this, is
we think quite clear, both on principle and authority.
We can perceive no reason whatever, why the wife, inca-
ses like this, should not be protected in the enjoyment of the
property by a court of law. If she were compelled to sue
the personal representative, as for a debt due from her hus-
band, possibly she would have to resort to a co urt of equity ;
but being in possession of the fund, and having the right to
retain it, she has both the legal and equitable title to it, and
may doubtless defend that right in a court "of law. The ac-
knowledged principle, that where the evidence of a debt is
in the name of a married woman, the husband may join his
wife with him in the suit, and that if he does, it will survive
to her, if he dies pending the suit, is entirely analagous to this
case, and shows, that after the decease .of the husband, with-
out reducing the money to his possession, the legal title to
it is vested in the wife. The facts of this case are, that the
JUNE TERM, 1847. 17
McCaskle v. Amarine.
husband himself in some instances, and the wife by his per-
mission in others, hired out the slave, and placed the money
out on loan for the wife's benefit, and that the money so lent
has been paid to her since the husband's death. The mo-
ney, in point of fact, since the loan for the benefit of the wife,
has'never been reduced by the husband to his possession
and the placing it out on loan, in the wife's name, and for
her benefit, is surely quite as strong evidence of the intent on
the part of the husband that the wife should have an interest
in it, as would be the commencement of a suit, in the joint
name of husband and wife, on a note made to the wife during
coverture. [Morris v. Booth and wife, 8 Ala. 907 ; Phillis-
kirk v. Pluckwell, 2 M. & S. 393 ; Burrough v. Moss, 10 B.
& C. 558.
Although the court incorrectly charged the jury, upon the
effect of the will, no injury was done to the plaintiff, as upon
the whole case, it is clear he is not entitled to recover ; and
the case will not be reversed for an error, which could work
no prejudice.
Judgment affirmed.
McCASKLE v. AMARINE.
1. The hand writing of a justice of the peace, to an execution issued by him,
may be proved by a third person, without calling the justice himself.
2. A deed is not properly recorded upon the affidavit of the subscribing wit-
nesses, " that they acknowledged their signatures to this deed."
3. The possession of land under a claim of right, is prima facie such an in-
terest as is subject to levy and sale, although the possession may not have
continued such a length of time as to bar the right of entry.
4. It is no objection to the validity of a deed, that it is not recorded, except
as to creditors, and subsequent purchasers. The notice of title given by
possession, is equivalent to the constructive notice afforded by registration
of the deed.
3
18 ALABAMA.
McCaskle v. Amarine.
5. When a suit is brought against several persons, as tenants of the same
lands, and A. is " admitted to defend as landlord, for each, and all of said
original defendants," and pleads not guilty, it is in effect the same, as if
he had instituted the suit himself, and he cannot therefore object that a
judgment is rendered generally for the damages, without ascertaining the
value of the rent of each tenant, Quere ? can a joint action be maintained f
if objected to, against several persons occupying separate parcels of the
land.
6. The possession of a fraudulent vendee cannot be deemed adverse, as a-
gainst creditors and purchasers from the vendor, where the subsequent
purchase was made under judicial process ; and the possession of the ten-
ants of the fraudulent vendee, must be considered as his possession.
7. A vendee claiming to have purchased land by delivering up the note of
the vendor, must, as against the existing creditors of the vendor, prove
that the note evidenced a real debt
8. The mere fact, that the entire consideration recited in a deed has not been
paid, or that it is not a full equivalent for the property conveyed, does not
per se make the deed void, though it may cast suspicion over the transac-
tion, and authorize a verdict against it
,'t:>v.-'*xi
Writ of Error to the Circuit Court of Randolph,
THIS was an action of trespass, at the suit of the defend-
ant in error, brought as well to try titles to the east half of
section six in township seventeen, and range twelve east in
the Coosa land district, as to recover damages for its occupa-
tion. The cause was tried by a jury, who returned a ver-
dict for plaintiff, assessing his damages at ninety-five dollars.
From a bill of exceptions sealed at the defendant's instance,
it appears that the plaintiff adduced the following evidence,
viz : 1. A deed from the sheriff of Randolph to Smith, Cul-
breath, and Abel, which deed bears date the fourth day of
July, 1842, and recites sundry writs of venditioni ezponas,
under which the lands in question were sold, its advertise-
ment, sale, and purchase, by the grantees in the deed. The
recitals of the deed, as it respects the levy, advertisement,
and sale was proved, and the land was levied on and sold as
the property of George McCaskle. 2. At the time of, and
long before the sale above stated, plaintiff was a judgment
creditor of Geo. McCaskle, and as such redeemed the land
from the purchasers at sheriff's sale; to prove which latter
fact the plaintiff read to the jury a deed from the purchasers
JUNE TERM, 1847. 19
McCaskle v. Amarrne.
under the writ of vend. ex. This deed bears date the 12th
May, 1843 ; but neither it, nor the preceding one, appears to
have been recorded. 3. The writs under which ,the land
was sold were issued on orders of sale, founded on the levies
of executions issued by a justice of the peace on sundry judg-
ments rendered by him. These judgments were rendered
in May, 1841, levies made and returned to the spring term of
the circuit court of Randolph, in 1842, when the orders of
sale were made. In offering the proceedings before the jus-
tice, the plaintiff was permitted to prove his hand writing by
the constable who levied the executions, and was well ac-
quainted with it ; and to this the defendant excepted. 4.
Plaintiff then proved that John McCaskle resided on the land
for eight years previous to the trial, and still continued to live
on it. Previous to 1841, he made valuable improvements ;
the yearly value of the rents and profits was shown. 5.
Geo. McCaskle, Willis Bennett, and Peter Bennett occupied
separate houses on the land sued for, at the commencement
of this action ; and no one else was in possession : Further,
that before this suit was brought, plaintiff demanded of them
the possession, which they refused to yield up. - 9
The defendant on his part, offered the following evidence,
viz : 1. A deed bearing date in June, 1841, by which Geo.
McCaskle, in consideration of $700, conveyed the land in
controversy to Reuben McCaskte. This deed purports to
have been irregularly proved by the subscribiug witnesses be-
fore the justice of the peace, who certified the probate and
thereupon the same was recorded in the office of the clerk of
the circuit court of Randolph. 2. The subscribing witnes-
ses testified that the grantee of this last deed, when it was
made and delivered, surrendered to the grantor a note which
he held against the latter for $300, and in addition gave the
grantor his note for the like sum- both parties stating at the
time that these notes were given to the grantor in considera-
tion of the purchase. The witnesses did not see any money
paid. 3. By a law in force in Randolph county in 1841, the
clerk of the circuit court was authorized to record deeds, yet
it was ruled by the court that the deed was not properly re-
corded ; and thereupon the defendant excepted. 4. An
agreement by which a lease was made by the defendant to
_ALABAMA.
McCaskle v. Amarine.
Willis and Peter Bennett, for land that they may clear on the
premises bearing date in October, 1842, and continuing
seven years, from December 1843 : also, a lease by the de-
fendant to George McCaskle and John Keller of the planta-
tion, houses, &c. on the land during the year 1842.
It was further shown on the part of the plaintiff 1. That
Geo. McCaskle, at the time he made the deed to the defend-
ant was much in debt ; that the latter had no visible means
but a horse at times taught a school sometimes was in-
temperate in his habits was the brother of his vendor had
never resided on the land, and had no fixed place of resi-
dence. 2. George McCaskle was forty-five or fifty years of
age, with a family, and when the deed to his brother bears
date, he had no other property but the land in question. 3.
Geo. McCaskle, Willis and Peter Bennett had occupied sepa-
rate portions of the land as tenants under the defendant, ever
since the date of the deed to the plaintiff the defendant fre-
quently visiting his brother. 4. The deed from G. McCaskle
to the defendant was signed when no one was present but the
parties to it and the subscribing witnesses, though it was writ-
ten some days before it was executed. 5. The defendant, when
he received the deed from his brother was about fifty years
of age unmarried, without family of any kind. This evi-
dence was objected to, but the objection was overruled and
the defendant excepted.
The defendant prayed the court to charge the jury as fol-
lows : 1. That the plaintiff had not made out a sufficient
title to the land sued for to entitle him to recover, unless he
had shown a paper title in Geo. McCaskle, or twenty years
adverse possession by him. 2. That the two deeds adduced
by the plaintiff, if not recorded, are inoperative to entitle
him to recover. Both these charges were denied the court
saying that it was unimportant whether or not the deeds were
recorded.
The jury were also charged as follows : 1. That as Reu-
ben McCaskle had been made a defendant to the action as
the landlord of his brother, and Willis and Peter Bennett, if
they were satisfied from the evidence that the title to the
premises was in the plaintiff at the commencement of this
action, then they should find a verdict against the defendant
JUNE TERM, 1847.
McCaskle v. Amarine.
for the lands, and the damages sustained by the plaintiff
since the institution of the suit, by the several occupation of
these tenants. 2. If the sale and conveyance from Geo. Mc-
Caskle to the defendant was fraudulent, made with a view
to delay, hinder, and defraud the creditors of the former, then
although the land may have been in the actual possession of
the defendants tenants, under leases as shown by the evi-
dence, before and at the time of the plaintiff's purchase, the
plaintiff was entitled to recover. 3. If the juy were satis-
fied, that when the deed from Geo. McCaskle to defendant
was executed, the latter gave up to the former a note purport-
ing to have been made by him (George) for $300 ; and at
the same time made and delivered to him his own note for
the same sum, these facts did not prove that a consideration
had passed from the defendant to his vendor. To the refu-
sal to charge as prayed, and to the charges given, the defend-
ant excepted.
L. E. PARSONS and J. FALKNEB, for the plaintiff in error,
argued all the questions raised by the bill of exceptions, and
cited Morgan v. Morgan, et al. 3 Stew. Rep. 383 ; Powell v.
Allred, 11 Ala. R. 318; Fipps v. McGehee, 5 Port. R. 413;
4 Ala. R. 469 ; Rhea, Conner & Co. v. Hughes, 1 Ala. R.
219 ; Smith, et al. v. Hogan, 4 Ala. Rep. 93 ; Doe ex dem.
Davis v. McKinney, 5 Id. 730 ; Tillotson v. Doe ex dem,
Kennedy, Id. 407 ; Badger v. Lyon, 7 Ala. R. 503 ; Carloss,
use, &c. v. Ansley, 9 Id. 900 ; Wheaton v. Sexton, 4 Wheat.
Rep. 503.
S. F. RICE, for the defendant in error, cited Paris v. Bur-
ger, 6 N. H. Rep. 325 ; Jones v. The Planters' Bank, Id.
619; Jackson v. Merritt, 11 Wend. Rep. 46; Fipps v. Mc-
McGehee, 5 Port. Rep. 413; McCain v. Wood, 4 Ala. Rep.
258 ; Branch Bank at Decatur v. Kinsey, 5 Id. 9 ; Horton
v. Smith, 8 Id. 73 ; Cartoss v. Ansley, Id. 900 ; Daniel v.
Sorrells, 9 Id. 436.
COLLIER, C. J. Without stopping to inquire whether it
was necessary for the plaintiff to produce and prove the pro-
ceedings before the* justice of the peace, or whether the or-
22 ALABAMA.
McCaskle v. Amarine.
ders of sale having been made upon their inspection, was not
conclusive of their regularity, we would remark, that if such
proof was essential, we can discover no objection to the com-
petency of the constable. This witness affirms that he was
well acquainted with the handwriting of the justice ; and if
it was more convenient to obtain his testimony, or the plain-
tiff preferred relying on it, to calling on the justice to prove
or admit his writing, we cannot conceive that any rule of law
would be violated. The evidence of the justice might per-
haps be more satisfactory and convincing, but it would not
be of a higher grade, and could not consequently be rejected
under the influence of the rule which requires the best evi-
dence attainable to be adduced.
The certificate upon which the deed from George McCas-
kle to the defendant was admitted to record, merely affirms
that the subscribing witnesses personally came before the
justice of the peace, and being duly sworn, deposed " that
they acknowledged their signature to this deed. Now, the
statute requires where a deed is proved by the subscribing
witnesses, that they shall declare on oath, that they saw the
grantor sign, seal and deliver the same to the grantee, and
that they subscribed their names as a witness thereto in the
presence of the grantor, &c. [Clay's Dig. 151-153, <> 1-7.J
It is perfectly clear that the certificate does not at all con-
form to the directions of the act, and the registration cannot
be regarded an official act of the clerk, so as to operate a con-
structive notice of the contents of the deed to those whose
interests it may affect.
It was not indispensable to the plaintiff's right to recover,
that he should have adduced documentary evidence of a title
in the defendant in the executions under which the sheriff
sold the land, or that the latter had had twenty years unin-
terrupted adverse possession. We have repeatedly held, that
where a party is in possession of land under a claim of right,
he has prima fade such an interest as is subject to levy and
sale under a fieri facias ; although the possession may not
have continued for such a length of time as to bar a right of
entry. Actions of ejectment and of a kindred character have
frequently been maintained upon proof of possession for a pe-
riod short of twenty years. These decisions rest upon the
JUNE TERM, 1847. 23
McCaskle v. Amarine.
ground that the defendant in execution, or the plaintiff in
such action, had a legal title, though it may have 'been in-
complete in itself, or imperfectly evidenced.
It is not indispensable to the validity of a deed conveying
lands, that it should be recorded. But if it is not registered
within the time prescribed by olir statutes, it is only invalid
and inoperative against creditors and subsequent purchasers,
&c. [Clay's Dig. 154, 18 ; 256, 8.] The defendant does
not come within either of these classes as to him therefore,
it is unimportant whether the deed under which the plain-
tiff deduces a title was ever recorded. If the purchase under
which he claims was bona fide, and the plaintiff had con-
structive notice of it, either by the registration of his deed or
the occupation of his tenants, (which may be regarded as
equivalent,) the subsequent sale by the sheriff through which
the plaintiff claims cannot affect him.
It might perhaps have been questioned whether, if George
McCaskle and Willis and Peter Bennett occupied separate
parcels of the land in controversy, a joint action could be
maintained against them, but that question was not raised,
and it is possible the record is now in such a condition, that
it cannot be made hereafter. f If the tenants occupied dis-
tinct parts of the land, then the verdict against them should
have been for damages severally against each, proportioned
to the value of the parts they respectively occupied. The
circuit court admitted the defendant to defend the suit "as
landlord for each and all of said original defendants," and
the plea of " not guilty " was then filed, $*c.; the jury found
the original defendants (the alledged tenants) not guilty and
the defendant guilty assessing the damages against him,
&c. This proceeding may not be technically correct in
every particular, yet as the landlord upon his own motion
was admitted as a defendant to defend for his tenants,
the case may be considered as if he was a party to the writ.
This being so, he could not if the suit had been thus insti-
tuted, have objected that his tenants were discharged by the
verdict, and that he had been charged with the rents for the
premises occupied by them. As he was instrumental in
keeping the plaintiff out of possession by putting others in,
he should make good to the plaintiff, the loss resulting from
24 ALABAMA.
McCaskle v. Amarine.
his ouster, though the tenants might be liable to him for rent ;
and we think it is not material as it respects the conse-
quences, whether he is made a party under original process,
or comes in of his own accord. If the landlord who defends
unsuccessfully is liable for the damages accruing after " the
commencement of the suit," we can conceive of no objection
to the verdict because it is for an aggregate sum, instead of
estimating severally the value of the rents for the part occu-
pied by each tenant.
If the sale by George McCaskle was fraudulent, and in-
tended to delay, hinder and defraud his creditors, the fact
that the defendant, his vendee, had leased the land to other
persons who were in the actual possession when the sale was
made by the sheriff under the .writs of venditioni ezponas, or
when the plaintiff redeemed the land from the purchasers at
that sale, as authorised by the statute, cannot impair the
plaintiff's title. The possession of a fraudulent vendee can-
not under such circumstances be deemed adverse as against
creditors and purchasers, where the subsequent sale is made
under judicial process : and the possession of his tenants
must be regarded as in subordination to his title.
The judgments before the justice of the peace under which
the levies and subsequent orders of sale were made, were ren-
dered before the execution of the deed from George McCas-
kle to the defendant, and as against the plaintiffs in those
judgments, and the purchasers deducing a title to the land
through the orders of sale, it devolved upon the defendant to
show that the note of his vendor which was delivered up,
evidenced a real debt. Without the aid of such extrinsic ev-
idence, no influence can be accorded to it against a pre-exist-
ing creditor of the vendor. If the law were otherwise, it
would be easy to simulate a debt, manufacture the ostensible
proof of it as occasion required, and thus place at defiance
the creditors of a debtor who did not feel it a paramount
duty to pay his debts. But it is unnecessary to attempt to
support this view by reasoning, for it rests upon unquestion-
able authority.
In respect to the note for three hundred dollars, which was
made by the defendant and handed to his vendor at the time
the deed was executed, there was nothing to impugn the con-
_ JUNE TERMy 1847. _ 25
Scott, Slough & Co. v. Stallsworth.
sideration thus far. It caimot be assumed as a legal conclu-
sion, because the vendor's note which was delivered to him
was not shown to indicate a real indebtedness, that the ven-
dee's was merely simulated, and intended to put a false phase
upon the transaction. The mere fact that the entire consid-
eration recited in a deed has not been paid, or that it is not
a full equivalent for the property conveyed, does not per se
make the deed void, although they might in the opinion of a
jury throw suspicion over its fairness, and under some cir-
cumstances authorise a verdict against its validity. In the
case at bar, the court, instead of passing upon the bona fides
of the sale and conveyance from George McCaskle to the
defendant, and declaring that it was not supported by a con-
sideration, should have laid down the law, and the jury
should have determined the questions of fact and the inten-
tion of those parties. For the error in the last charge given,
the judgment of the circuit court is reversed, and the cause
remanded.
in
r';^r: f^.^;.!.-; .
SCOTT, SLOUGH & Co. v. STALLSWORTH.
1. In an issue between the transferee of a debt admitted as due to the debt-
or and the attaching creditor, the court may require the transferee to aver
the validity of the transfer, and it is not error to refuse to compel the cre-
ditor to aver that the debt is subject to his process.
2. Under the trial of such an issue, the debtor, under the act of 1845, is not
a competent witness.
3. The answer of the garnishee, and the papers in the cause, cannot be look
ed to as evidence on the trial of this issue.
1 '*. -^ ::-, f I -H'-:\ /Tjani lii. :-.;;*; {
Writ of Error to the Circuit Court of Mobiie.
> ' ' ' . ) V* '
STALLSWORTH sued one Thorn before a justice, and there
had judgment j afterwards he summoned Huntington &
4
ALABAMA.
Scott, Slough & Co. v. Stallsworth.
Cleveland as garnishees, but the/ answered, that although
they were indebted to Thorn, yet they had been notified by
Scott, Slough & Co. that Thorn had assigned the debt to
them. Scott, Slough & Co. were thereupon summoned as
transferees to contest the plaintiff 's claim. The justice gave
judgment in favor of Stallsworth, and Scott, Slough & Co.
appealed to the county court. When the issue was about to
be made, the transferees insisted Stallsworth should alledge
and they deny that the money in the hands of Scott, Slough
<fc Co. was subject to the judgment. The court refused to
direct the issue thus, and directed that Scott, Slough & Co.
should assert that Thorn's transfer of H. & C's indebtedness
to them was valid. This was excepted to, but the issue form-
ed as directed by the court. This in the judgment entry is
stated as being formed by consent of parties.
At the trial, the transferees offered the deposition of Thorn,
the defendant in execution, as evidence to prove the validity
of the transfer, but the court excluded it on the ground that
Thorn was incompetent, under the statute, as a witness.
The court charged the jury, that the only question was,
the validity of the transfer made by Thorn to Scott, Slough
& Co., and the jury could not look to the answer of the gar-
nishee, nor to the papers in the original suit of Stallsworth v.
Thorn as evidence for any purpose on this issue.
The transferees excepted to the several rulings of the court
against 4hem, and here assign the same as error.
. . -JW*V t 'rtt -V- . ;/;,. ..- 'ff. , jS ij .-.<>.; J-vfr ^c.jf-j.-,:', .{;,
WM. G. JONES, for the plaintiff in error, insisted
1. The court forced the plaintiffs to join in an improper is-
sue. Stallsworth was the actor, he should have made the
allegation, and the defendant denied it. The form of issue
prescribed by the court was injurious and oppressive to the
plaintiff in error. It shifted the onus probandi from Stalls-
worth, on whom it properly lay, and threw it oh Scott,
Slough & Co. It made them hold the affirmative, and re-
quired them to prove the validity of the assignment to them.
That the issue was improperly made up, see Goodwin v.
Brooks, et al. 6 Ala. Rep. 836.
_ JUNE TERM, 1847. _ 27
Scott, Slough & Co. v. Stallsworth. _ _
2. The court erred in excluding the deposition of Thorn.
The act of 25th January, 1845, (see Acts, p. 136,) does not
in terms apply to this case, and, being in derogation of com-
mon law, and tending to exclude evidence from the jury, it
is submitted that the court ought not to extend its applica-
tion by implication.
The court erred in charging the jury that they could not
look to the papers in the case as evidence for any purpose.
It was necessary the jury should do so to see the subject
matter in controversy, and to identify it. The jury is al-
ways allowed to take the writ, declaration, &c., and look to
them. Without this they cannot see the identity of the subject
matter involved in the issue, nor the proper application of the
evidence.
. .
STEWART, contra.
iiiV
GOLDTHWAITE, J.- 1. Upon the first point made by
the plaintiffs in error, we think the decision made by us in
Camp v. Hatter, 11 Ala. R. 151, is conclusive. We then
held, that in an issue between the transferee of the debt ad-
mitted to be due by the garnishee, it was incumbent on the
transferee to show the transfer of the debt to him previous to
service of process on the garnishee, and that it was proper for
the court to require this question to be presented by the is-
sue. The effect of this decision is, that the validity of the
transfer must be alledged by the transferee. It is supposed
in argument, that cases may arise in which the debt admitted
by the garnishee may in point of fact have been a debt due
to the transferee, instead of the defendant in attachment, or
execution, and thus, in such cases, the transferee would be
deprived of the benefit of his oath in denying the indebted-
ness to the defendant in execution. The answer to this is,
that under the supposed circumstances, the garnishee would
not be authorized to admit indebtedness to the debtor, and if
he did so wrongfully, he could never resist the claim of the
rightful creditor. When, however, the garnishee admits the
existence of a debt, which once was payable to the debtor,
there is no peculiar hardship ' in requiring him who claims
through a transfer, .from showing its validity? We think
28 ALABAMA.
Scott, Slough & Co. v. Stallaworth.
there was no error in requiting the issue to be formed as it
was.
2. The facts of this case do not, it is true, bring it within
the precise terms of the act of 1845, as the proceeding before
us is not technically a trial of the right of property, although
it is so in effect, quoad the debt attached. We have en-
deavor,ed to show, in our previous decisions on this act, that
its object is to exclude the defendant in execution from be-
ing a witness on the ground of policy, and not upon the
ground of interest. [Brumby v. Langdon, 10 Ala. R. 747 ;
Carville v. Stout, Ib. 796.] The object of the enactment be-
ing to exclude the debtor as a witness, in a contest between
him and the creditor, when the contest is with respect to the
condemnation of the property seized, it is impossible to say
there is any substantial difference between the seizure of
debt and a personal chattel. In either case the means are
provided for the assertion of the claim of a third person, and
although in the one instance, the claim is called a trial of the
right of property, and in the other garnishment, we think the
last is equally within the mischief intended to be eradicated
by the statute. In our judgment the deposition of the wit-
ness was properly rejected.
3. The only other point to be examined, is that arising out
of the charge of the court. It may be, and doubtless is true,
as argued by the plaintiffs in error, that the papers and plead-
ings in a suit are always evidence of the facts admitted by
them, but it cannot be assumed they are so to prove the pre-
cise matter in issue. Thus a plea of payment unaccompa-
nied by one denying the cause of action, might properly be
considered as evidence of the admission of the debt, but cer-
tainly could have no effect to prove the affirmative of the is-
sue of non-assumpsit. Whatever weight the answer of the
garnishee was entitled to in his own ease, neither that or the
other papers were evidence to prove the validity of the as-
signment by the debtor to those claiming to be his transferees.
[Wyatt v. Lockhart, 9 Ala. R. 91.J
We are unable to see any error in the record. Judgment
affirmed.
JUNE TERM, 1847.
Newman v 1 . James & Newman.
NEWMAN v. JAMES & NEWMAN.
1. A conveyance of slaves by deed, to a married woman, "to her and her
heirs, to have and to hold the same, to and for her use, benefit and right,
and of the heirs aforesaid, without let, hindrance, or molestation, whatev-
er," is a conveyance of the property to her sole and separate use.
2. When property is conveyed absolutely, to a married woman, by a stran-
ger, the statute of frauds has no application, in a contest between the wife
and the creditors of the husband; it is therefore unimportant, whether the
instrument is, or is not recorded.
3. When a gift of slaves is made by deed, the delivery of the deed is suffi-
cient, without a delivery of the property.
4. A denial by a defendant, upon information and belief, not founded on the
personal knowledge of the defendant, will not overturn the positive testi-
mony of one witness, sustaining the allegations of the bill.
' i ;>;>; 4fji' v.;<;:'j *ih ?') : '-?; ii- . A^ :.$;;, 0*.:
Error to the Chancery Court of Monroe.
THE bill, which was filed by the plaintiff in error, alledges
that one William Hollinger, on the 22d December, 1843,
being the owner of certain slaves, by deed of that date, made
a gift of them to her, for her sole and separate use, and in-
tended so to express it in the deed, and so directed the deed
to be drawn, but which was unskilfully drawn, and because
the intentions of said Hollinger were not set forth, does not
clearly express the intention of Hollinger, to give her a sepa-
rate estate ; and avers that no consideration passed from her
husband to Hollinger, to induce him to make the gift.
That afterwards, on the 30th July, 1845, Hollinger hav-
ing discovered the error, and mistake in the deed, and for
the purpose of correcting it, made another deed of the pro-
perty to her. Both deeds are made exhibits to the bill.
That at the spring term, 1844, Robert D. James recover-
ed a judgment against Alger Newman, her husband, for
$554 33 debt, and $406 93 damages, and on the 18th July,
1845, an alias execution issued on the judgment, was placed
in the hands of the sheriff of Monroe that he has levied on,
30 ALABAMA.
Newman v. James A Newman.
and advertised the property for sale, &c. The prayer of the
bill is for a reformation of the first deed, for an injunction,
&c.
James answered the bill, and denied that the slaves con-
veyed by the deeds ever were the property of Hollinger, but
were the property of Newman that the slaves were not in
the possession of Hollinger at the time of the conveyance,
and were never delivered to the complainant and charges
that the deeds are fraudulent and void in fact, and for want
of registration.
For the testimony see the opinion of the court. The
Chancellor dismissed the bill, which is the matter now as-
signed for error.
r.'?:', ** '*>':<. vv^ ' . *>'t S *f 'i, \\-f-
LESLIE, for plaintiff in error.
A court of equity will correct a mistake in a deed, when it
does not contain the true intent of the party making it. [1
Story on Eq. 128, $ 115 ; Ib. 151, $ 136.]
When property is given to a feme covert by deed, as "to
and for her use, benefit, and right, without let, hindrance, or
molestation whatever," it will be considered for her sole and
separate use. [Clancy's Rights, &c. 262, 267; O'Neal, et al.
v. Teague, 8 Ala. R. 345.]
The statute of frauds does not require a deed to a feme co-
vert for her sole and separate use to be recorded, where the
property goes into the possession of the donee. [Swift v.
Fitzhugh, 9 Porter, 58 ; Thomas <* Howard v. Davis, 6 Ala.
Rep. 113; Catterlin v. Hardy, et al. 10 Ala. R. 511.]
BLOUNT, contra.
1. Exhibit A., being a deed from William Hollinger to E-
lizabeth Newman is void for want of registration. [Myers
v. Peek's Adm'rs, 2 Ala. R. 648 ; Statute of Frauds, Clay's
Dig. 254.
2. It is void because intended to hinder and delay creditors
it was intended to prevent the defendant from collecting
his debt sued for on 2d January, 1842 ; the deed bears date
JUNE TERM, 1847.
Newman v. James & Newman.
22d December, 1843, nearly two years afterwards. [Myers
v. Peek's Adm'rs, 2 Ala. 648.]
3. There was no delivery of the property or of the deed
to the complainant it is indispensable to the validity of a
gift inter vivos, there should be a delivery of the property
accompanying the gift. [Sewell v. Glidden, 1 Ala. Rep. 52 ;
Oden v. Stiibblefield, 4 Ib. 40.]
4. Whatley, one of the witnesses of complainant shows
that Alger Newman has always been in the possession of the
negroes. Peebles, the only other witness, has known Hoi-
linger for eighteen years, and has never seen said slaves in
Hollinger's possession. The answer avers that the negroes
have always been in Newman's possession.
5. The exhibit B. conveying a sole and separate estate to
complainant, is fraudulent and void as to defendant's debt
the alias execution created a lien upon the property on 18th
July, 1845, and exhibit B. bears date 30th July, 1845.
6. If it was not Hollinger's property, it is a matter of no
consequence whose property it was so far as Mrs. Newman
is concerned. The levy of the defendant's execution on the
slaves, as the property of Newman, is good until a better ti-
tle is shown.
7. The complainant has entirely failed in proving proper-
ty, or possession, in Hollinger at the time of the execution of
the deed A., or at any subsequent time but her witnesses
have proved the property in the possession of Alger New-
man.
ORMOND, J. The first deed made by Hollinger, con-
veys the slaves, and other property, to Mrs. Newman, " to her
and her heirs, to have and to hold the same, to and for her
A ' '
use, benefit, and right, and of the heirs aforesaid, without
let, hindrance, or molestation whatever." In our judgment,
these words clearly indicate the intention, to create a sepa-
rate estate in the wife. The most appropriate language to
employ, in the creation of such an estate, is " to her sole
and separate use ;" these have, an established technical mean-
ing, indicating with legal certainty, the character of the es
32 ALABAMA.
Newman v. James &. Newman.
tate intended to be created. But it is well settled, that no
particular phraseology is necessary ; it is sufficient, if it ap-
pear manifestly that the intent was to secure it to the use of
the wife, in such a mode as to be inconsistent with the enjoy-
ment of the gift by the husband, or with the exercise of do-
minion over it by him.
Thus it has been held, that a gift to trustees, for a married
woman, to which was added, " my said trustees shall not be
troubled to see to the application of any sum, or sums, paid to
the said Sophia, but her receipt in writing shall be sufficient,"
were held to be sufficient, to indicate an intent to create a
separate estate in the wife. So in Hartley v. Hurle, a direc-
tion to pay a legacy "into the proper hands" of a married
woman, was held to give her a separate estate. [5 Ves. 541.]
Many other cases mighf be cited, some of which appear to be
of doubtful authority, but the clear result of the authorities is,
that when it is evident from the language employed in the
creation of .the estate, that the husband should not enjoy the
property, or exercise any dominion over it, his marital rights
are excluded, and the wife will take a separate estate. It is
declared to be for her use, benefit, and right, and although
these words standing alone, might not be sufficient, yet when
it is added, she was to hold this property, " without let, hin-
drance, or molestation whatever," it is impossible, we think,
to doubt the intention was, that the husband should exercise
no control, or dominion over it. To permit him, or a credi-
tor in his name, to appropriate it to the payment of the hus-
band's debts, would be in direct contravention of the deed.
In our judgment it is a much clearer case of the creation of a
separate estate, than either of those cited. [Clancey on
Rights. 267; Ex parte Ray, 1 Madd. C. 199, Am. ed. 115.]
This renders it unnecessary to consider, the question, whe-
ther the case presented is one requiring the deed to be re-
formed, so as to make it speak the intent of the donor.
We do not perceive, that the 2d section of the statute of
frauds, requiring conveyances of personal property to be re-
corded, unless the possession remains with the donee, has
any application to this case. The design of the statute was,
to subject the property in such a case, to the payment of the
debts of the donor, and doubtless in this case, if the posses-
JUNE TERM, 1847. 33
Newman v. James & Newman.
sion of the property was retained by the donor, without re-
gistration it would be liable to the payment of his debts, or
in the language of the act, would be taken to be fraudulent.
But that is not the predicament of the case. The attempt
is, to make the slaves responsible for the debts of the husband
of the donee. The case of Myers v. Peek, 2 Ala. 655, was
determined upon the last clause of the 2d section of the sta-
tute, requiring the registration of deeds, where a loan had
been made, or a reservation, or limitation retained by the
grantor, the possession being with the loanee, or grantee, and
has no bearing upon such a case as the present. See, also,
Oden v. Stubblefield, 4 Id. 40, and Thomas & Howard v.
Davis, 6 Id. 121. It is manifest, these decisions have no ap-
plication here. This is not the case of a loan, or reservation
of an interest by the donor, but is an absolute gift to a mar-
ried woman, and the statute of frauds has no application, in
a contest between the wife and the creditors of the husband.
[Swift v. Fitzhugh, 9 Porter, 39, and O'Neil, Michaux, ^c.
v. Teague, 8 Ala. 349.]
If the slaves conveyed by this deed to Mrs. Newman, be-
longed to Hollinger at the time the deed was made, it was a
valid conveyance, although there was no delivery of the
slaves to her. An actual delivery is necessary to the con-
summation of a pure gift at common law, but where the
gift is manifested by deed, the delivery of the deed is an
equivalent act, and consummates the gift. [McCutchen v.
McCutchen, 9 Porter, 650.] It is supposed there is no proof
the first deed was delivered. The fact of delivery is usually
inferred from circumstances, and is in this case conclusively
established, although the [donee was not present at the exe-
cution of the deed. The donor himself admits the full exe-
cution of the deed, and that it is binding on him, and we are
unable to perceive, what interest any one who does not claim
through him. as creditor, or purchaser, has in controverting
this fact. If the deed is void for want of a delivery to the
donee, the creditors of the husband of the donee can claim
no benefit from it, for the result would be, that the property
is still in Hollinger, the donor. And this brings us to what
is really the only question of any difficulty presented by the
5
34 ALABAMA.
Newman v. James & Newman.
record were these slaves, at the time of the conveyance, the
property of Hollinger, or were they, as contended, the pro-
perty of Alger Newman, the husband.
This is a matter of fact, to be determined from the evi-
dence, and involves the question of fraud. The donor has
been examined as a witness, and he proves, that the slaves
belonged to him, when he conveyed them to the wife of New-
man. He states, that the slaves once belonged to Newman,
but that he purchased them at Monroeville, at sheriff's sale.
That Newman is an improvident man, and he conveyed them
to Mrs. Newman, from considerations of blood, and affection,
she being his cousin, and a cripple, and both being of the
Creek tribe of Indians. That at the time of the conveyance,
the slaves were not present, being on hi* plantation. That
Newman, for six or seven years previously, had the charge of
all his slaves, but at the time of the conveyance was out of
the State.
The defendant examined no witnesses, and it is evident if
this witness is believed, the slaves were his, and he had the
right to give them to whoever he pleased. There can be
no doubt of his competency, as he has no legal interest in
the question. Nor do we see any thing in the fact, that it
was a donation, which should discredit his testimony. It
appears from the testimony of the other witnesses, that he is
wealthy, and that he was expected to die on the day the
deed was executed ; that he declared he had long meditated
making this conveyance, and that it had been delayed too
long.
We do not see any material variance between this testimo-
ny and the evidence of Whatley. The latter states, he does
not know to whom the slaves belonged at the time of the
conveyance, except the boy Ben, who was purchased by
Hollinger of the witness, in 1840, and to whom he executed
a bill of sale when he first knew the slaves they were in
the possession of Newman, but whether they were in fact in
his possession, or merely under his control as the overseer of
Hollinger, he does not know.
We do not think the omission of Hollinger to state that he
purchased the boy Ben from Whatley, impugns his veracity.
No conceivable motive could exist for the suppression of this
JUNE TERM, 1847. 35
Newman v. James & Newman.
fact ; and the general statement, that he purchased the slaves
at a sheriff's sale of Newman's property, may reasonably be
referred to the five other slaves, Milley and her children, as
he might well suppose, his right to Ben, who never had be-
longed to Newman, would not be controverted.
As to the proof by Whatly, of the possession of the slaves
by Newman, it is too indefinite to be of much value as evi-
dence. He may refer to a period anterior to the sheriff's sale,
and if he speaks of a subsequent time, he admits he does not
know, whether Newman asserted title, or whether his appa-
rent possession was any thing more than the control of an
overseer. Be its effect however what it may, it is certainly
not inconsistent with the testimony of Hollinger. There is
indeed, no testimony establishing that Newman was ever in
possession of these slaves, since the date of the deed ; but if
that fact were incontestably proved, it would not be inconsis-
tent with his wife's right of property, unless possibly he was
separated from his wife, and asserted a title adverse to the
deed, under which she claimed title. [Lee v. Mathews, 10
Ala. 686.]
It will be seen, that the entire merits of the case turns up-
on the testimony of Hollinger, and in our judgment there is
nothing in the testimony itself, or in the attending circum-
stances, calculated to show that it is not entitled to full cre-
dence. The principal fact, the purchase of the slaves, is
stated to have been open, and notorious, and if it was fabri-
cated, it is impossible to suppose it would not have been
shown to be false. Nor is there any reason whatever for
supposing that the purchase was made with Newman's mo-
ney. The answer in reference to the bona'fides of the trans-
action, is made upon informatiou, and belief, and does not
profess in its denials to be founded on the personal know-
ledge of the defendant proof therefore by one witness of the
facts, is sufficient, the more especially as the fact is not a se-
cret transaction, but one which was public, and must have
been generally known.
Our judgment therefore is, that the Chancellor erred in his
decree dismissing the bill. The decree rendered by the
36 ALABAMA.
Hutchinson, Adm'r, v. Gamble.
Chancellor must be reversed, and one be here entered, en-
joining the respondent from collecting his judgment out of
the slaves mentioned in the deed of the 22d December, 1843.
HUTCHINSON, ADM'R, v. GAMBLE.
1. When the avails of an action prosecuted by an administrator, would, if
successful, be assets of the estate he represents if unsuccessful, the
estate must be charged with the costs ; and if a judgment for costs is
rendered against him by the court below de bonis propriis, it will be here
rendered de bonis intestatis.
,
Writ of Error to the Circuit Court of Sumter.
THE plaintiff in error declared against the defendant in
detinue lor a female slave and other property, alledging his
possession as administrator, the loss by him and the finding
and detention by the defendant. Afterwards, the plaintiff
voluntarily suffered a nonsuit, and offered to prove that the
property sought to be recovered never was in his possession,
and that the action was instituted in his representative char-
acter to recover property supposed to belong to his intestate's
estate, and of which the defendant obtained possession sub-
sequent to the death of the intestate, and previous to the
grant of administration. But the court refused to hear the
proof, and rendered a judgment against the defendant for the
costs de bonis propriis.
R. H. SMITH, for the plaintiff in error.
S. W. INGE, for the defendant in error.
COLLIER, C. J. In Chandler, et al. v. Shehan, 7 Ala.
Rep. 251, it was said that the test to determine whether a
JUNE TERM, 1847. 37
Hunter Y.
judgment against an administrator should be de bonis pro-
priis, aut intestatis, is whether or not the money for which
the action is brought, would if recovered be assets of the es-
tate ; though it wa conceded that it had been held in Eng-
land, that a plaintiff suing as an executor or administrator
would be liable de bonis propriis, if the action could have
been maintained in his own name. And in Stewart, et al. v.
Hood, et al. 10 Ala. Rep. 600, it was held, that in this State
when an administrator de bonis non sues upon a note given
to the administrator in chief, in that character, for goods of
the estate, he is not responsible de bonis propriis for costs, as
he necessarily sues in his representative character. The
court said it would seem that whenever an administrator may
properly sue in his representative character, the costs in all
cases should follow the judgment ; and as that is, that the
defendant be discharged of the suit of the administrator, the
costs are recovered of the latter in his representative char-
acter.
In the case at bar the plaintiff, if he had been in posses-
sion of the property after the grant of administration, might
perhaps have sued in his own name, yet it was not indispen-
sable that he should have thus declared. Whatever the
plaintiff would have recovered had his action been success-
fully prosecuted, would have been assets of the estate he re-
presented ; and being unsuccessful according to the cases
cited, that estate is chargeable with the costs. The judg-
ment is therefore reversed, and the proper judgment here ren-
dered for the costs of the circuit court de bonis intestatis.
HUNTER v. O'NEIL.
1. An obligation to make a deed to certain lands when the price contracted
for is paid, is in law a covenant to make a good title when the condition
is performed by the purchaser.
38 ALABAMA.
Hunter v. O'Neil.
2. When the vendor entering into such a contract becomes insolvent before
the price is paid, and the purchaser shows an outstanding incumbrance
created by the vendor, he will be entitled to relief in a court of equity.
3. But, unless the money is actually tendered upon condition that a title is
made, the only relief is to enjoin the vendor fronflproceeding for the price
until he gives indemnity against the outstanding Jncumbrance.
Writ of Error to the Court of Chancery for the 30th Dis-
trict.
THE case made by the bill is this : Hunter, the complain-
ant, in the year 1836, purchased from O'Neil, the defendant,
a half-quarter section of land for the price of $456, for which
he executed his note to O'Neil, payable 25th December,
1837, and O'Neil executed an instrument under seat, binding
himself, his heirs, &c. to make a deed for the land as soon as
the note was paid. At this time O'Neil was in affluent cir-
cumstances, but afterwards failed and became insolvent.
The note was reduced by payments, but a portion of the sum
remaining due, O'Neil obtained judgment in 1841 for $219
81 debt, and $46 38 damages. At the time of the sale of the
land, it was incumbered by a mortgage from O'Neil to the
Tuscumbia and Decatur Railroad Company, which yet re-
mains in full force, and the existence of which was unknown
to the complainant when he purchased and took O'NeiFs
bond. The prayer is for a rescission of the contract, and for
further relief.
The answer admits all the allegations of the bill with re-
gard to the purchase, except the want of knowledge asserted
by the complainant of the existence of the incumbrance, as
to which it asserts that the fact was known or communicat-
ed. The defendant insists the mortgage spoken of does not
become absolute until the year 1848, arid that he is under
no obligation to give any thing more than a deed when the
money is paid. He admits his actual insolvency, but sub-
mits it may not continue always, and relies on his answer as
a general demurrer to the bill.
The chancellor at the hearing dismissed the bill. This is
now assigned as error.
JUNE TERM, 1847. 33
Hunter v. O'Neil.
T. M. PETERS, for the plaintiff in error. ;
W. COOPER, contra.
GOLDTHWAITE, J. 1. The question here is, whether
the obligation of the defendant to make a deed when the
price for the land is paid, amounts to a covenant of warranty
that he will then have a title ; and if so, whether the com-
plainant is entitled to any, and what relief, on account of the
insolvency of the defendant taking place after the execution
of the obligation, and previous to the payment of the price.
In Cullum v. Branch Bank at Mobile, 4 Ala. Rep. 21, we
had occasion to consider to some extent the obligations as-
sumed by the vendor and purchaser in a sale of land. We
there say the right of the purchaser to a good title is a right
not growing out of the agreement of the parties, but is given
by law that cotir.ts of equity govern their proceedings by
this just rule, and when an incumbrance is discovered before
the execution of the conveyance, the vendor must discharge
it, whether he has or has not agreed to covenant against in-
cumbrances. A different rule obtains when the conveyance
is executed ; then the maxim of caveat eniptor applies, and
the remedy of the purchaser must arise entirely on the cove-
nants of warranty, if there is no fraud in the transaction. The
effect of an obligation to make title or give a deed at a future
day in view of the principles just stated, may be assumed to
be a covenant that the vendor will then make a good title, as
it is impossible to conceive the parties were contracting
not with regard to that but with respect to a worthless in-
strument, which a mere deed certainly would be, if it passed
no title and contained no covenants of warranty. We are
aware there are decisions which hold that an obligation to
give a deed, is complied with by executing an instrument of
that description without reference to the title, but it seems to
us these are inconsistent with sound reason. See 4 Paige,
628 ; 2 John. 595 ; 12 Ib. 436 ; contra, 16 John. 267; 20
Ib. 130.
2. Taking the obligation of the defendant as a covenant
that he will make the complainant a good title to the land
sold him upon the payment of the note, it is evident no legal
right arises until this condition is performed ; nor would the
4Q_ ALABAMA.
Hunter v. O'Neil.
outstanding title in another person furnish a defence either
at law or in equity, as the parties have not contracted with
reference to that condition of things, and many previous de-
cisions of this court show, that as long as possession remains
with the vendee, he cannot resist an action for the price. We
do not understand the complainant as controverting these po-
sitions, but as asserting the contract as one, which implies
the ability of the vendor to respond in damages, if unable to
perform his stipulations, and that his insolvency subsequent
to the contract of sale, lets the purchaser in to resist the pay-
ment of the price and rescind the contract, which it becomes
evident the vendor will not be able to perform. In Cullum
v. Branch Bank, supra, when speaking of the attempt to urge
a similar defence at law where the deed contained covenants
of warranty and the purchaser was evicted, we said : " Such
a defence, whatever may be its merits, Qannot be called a
failure of consideration, because without the warranty the
purchaser would be remediless if entitled to any remedy, it
must be in consequence of the warranty and the subsequent
insolvency of the warrantor, by which the covenant intended
for the purchaser's security has become unavailable." We
there determined that the circumstances referred to consti-
tuted no defence at law, but stated our impression, that the
subsequent insolvency of the vendor, furnished a ground for
equitable relief. In considering that subject, we said :
" When the defendant accepted the covenant of warranty,
this was doubtless considered as an effective security," and
the vendor ought not to be permitted, when insolvent, to re-
ceive the purchase money, which he would be compelled to
refund in an action on the warranty. It is true, in the case
we have hitherto referred to, there was an actual eviction,
but we apprehend the same principles apply when the pur-
chaser, besides the insolvency, shows a paramount or out-
standing title which may be asserted against him. In Long
v. Brown, 4 Ala. Rep. 622, we state the principle that a
court of equity will not interfere between parties to a con-
tract when it is executory and no fraud has intervened, but
will leave them to seek the redress they have stipulated for,
unless there is some special ground for its interposition.
Thus, chancery will interpose when the covenants of the par-
JUNE TERM, 1$47. 41
Hunter v. O'Neil.
ties are independent, and the vendor cannot make or obtain
the title, and is insolvent. The ground of interposition in
such a case is to prevent the irreparable injury which must
result from the payment of the purchase money to one, who
cannot respond in damages for the breach of the contract on
his part. In the more recent case of the Tuscumbia Railroad
Co. v. Rhodes, 8 Ala. Rep. 206, we were required to con-
sider the effect of insolvency as a distinct ground for equita-
ble relief, and there held it sufficient to create the right in a
surety to retain a debt prospectively due from him to his prin-
cipal, until the latter either relieved or indemnified him
against the debt for which he was responsible. We think the
principles adverted to in some, and settled in other of the
cases cited, sustain the complainant's right to relief of some
kind, and we shall now proceed to state what we consider
that relief to be.
3. It is evident the insolvency of the vendor, in itself is no
ground for a rescission of the contract, inasmuch as the parties
have stipulated the title should not be required until the price
was paid. Doubtless if the money was tendered by this bill,
and the vendor did not make a sufficient title, under the di-
rection of the court a rescission of the contract might very pro-
perly be decreed, but then the complainant would be charged
in the account with the rents and profits of the land during
his occupation, if indeed it was so occupied by him : but all
which he has the right to require in the present condition of
the case, is to be placed as he "would be by his contract if
O'Neil was solvent. That is to have an indemnity against
the outstanding mortgage, admitted to be in existence and
created by O'Neil. The proper decree, is, that the plaintiff
at law shall be enjoined until he executes a sufficient indem-
nity against that mortgage, and that he may, upon its removal,
be allowed to proceed. The indemnity to be settled by a
reference to the master.
Decree reversed and remanded, for further proceedings in
conformity to this opinion.
42 ALABAMA.
Cook v. Kennerly & Smitn.
COOK v. KENNERLY & SMITH.
1. An ante-nuptial contract, by which the wife, before the marriage, convey-
ed certain slaves, and other property to trustees in trust, " to the use of
the said C. B. S., and her intended husband, J. C. K., during their natural
lives, at the death of either, then to the use of the survivor during his, or
her life ; at the death of such survivor, then to such child, or children of
the said C. B. S., and the lineal descendants of such child, or children as
may be then living, to them and their heirs forever; but should there be no
child, or children of the said Catherine, nor lineal descendant living at
the time of the death of such survivor, then the said property to be equal-
ly divided among the next of kin of the said C., who may then be living,
to them and their heirs forever. Yet the said C. may, notwithstanding her
coverture, by any writing under her hand and seal, attested, &c.;orby her
last will, &c., bequeath, or leave any of the aforesaid slaves, or all of the
same, to her said intended husband, or any other whatsoever" does not
give the wife a separate estate in the property conveyed, but creates a
joint estate in the property in the husband and wife during their lives, with
remainder to the children : and after it is reduced into possession by the
husband, is subject at law to the payment of his debts ; a sale under exe-
cution, conveying to the purchaser the life estate of the husband, and of
the wife during his life.
2. The law of South Carolina, where the deed was made, requires such in-
struments to be recorded, and for want of such registration, declares them
void, as to creditors, but that as between the parties to the deed it shall be
valid without registration. Held, that the provision in relation to credi-
tors, had no extra territorial efficacy as a law, and only applied to debts
created, or attempted to be enforced, in South Carolina.
3. When slaves are conveyed in trust for the use of another, he is entitled
to the possession to make the use effectual, unless the deed expressly de-
clares the cestui que trust is to be entitled only to the profits. The em-
ployment in the deed, of the term " in their actual possession," would not
justify the trustees in withholding the possession from the cestui que trust.
3. The possession of the cestui que trust, is not within the second section of
the statute of frauds. Quere, would it not apply to a trustee, who retain-
ed possession of the trust estate, without registration of the deed.
Error to the Circuit Court of Lauderdale.
DETINUE by the defendant in error.
JUNE TERM, 1847. v 43
Cook v. Kennerly & Smith.
From a bill of exceptions, found in the record, it appears
that the plaintiff in error, as sheriff, had levied on a number
of slaves, by virtue of an execution against James C. Ken-
nerly, and that the action was commenced by the plaintiffs
below, as trustees of Catherine Kennerly, wife of James C.
Kennerly, and relied on a deed, made previous to the mar-
riage, in the State of South Carolina ; to which both the hus-
band and wife were parties, the material parts of which are
as follows :
This indenture, made the 15th May, 1827, between James
C. Kennerly of Lexington district, physician, of the first part,
Catherine B. Smith of Charleston district of the second part,
and James Kennerly, Benjamin Smith, and Thomas J. Smith
of the third part. Whereas, a marriage is intended to be
shortly had, and solemnized, between James C. Kennerly and
Catherine B. Smith ; and whereas, the said Catherine is pos-
sessed of a considerable personal estate, consisting of the fol-
lowing slaves, to wit : Peggy, &c., &c. And is also entitled
to an undivided moiety of the negroes, late the property of
Francis Charlotte Smith, a deceased sister of the said Cathe-
rine, which she inherited from her father. And whereas, the
said Catherine, being aware of the many pecuniary accidents
and misfortunes, which occur even to the most prudent and
considerate, is willing, and desirous of having the said pro-
perty settled, and secured, in such manner, and to and for
such uses, as shall be hereinafter mentioned, he, the said Jas.
C. Kennerly, having previously, and voluntarily consented
thereto, and now being privy to the same. This indenture
therefore witnesseth, that for and in consideration, &c., the
said Catherine B. Smith hath given, &c., to the said James
Kennerly, Benjamin Smith, and Thomas J. Smith, in their
actual possession, all the negro slaves above named, with the
undivided moiety of the personal estate of Frances C. Smith,
as before described, together with the future issue, and in-
crease of the female slaves, to have and to hold, all and sin-
gular, unto them, &c. In trust however, and to and for the
uses following, and for no other use, interest or purpose what-
soever. That is to say, first, to the use of her, the said Cath-
ALABAMA. .
Cook v. Kennerly & Smith.
erine B. Smith, and her said intended husband James C. Ken-
nerly, during theit natural lives, at the death of either, then
to the use of the survivor, during his, or her life ; at the death
of such survivor, v then to such child, or children of the said
Catherine B. Smith, and the lineal descendants of such child
or children, as may be then living, to them and their heirs for-
ever. But should there be no child, or children of the said
Catherine, nor lineal descendant living at the time of the
death of the said survivor, then the said property to be equal-
ly divided, among the next of kin of the said Catherine, who
may then be living, to them and their heirs forever. Yet
the said Catherine shall, notwithstanding her coverture, by
any writing, or writings, under her hand and seal, attested
by two or more credible witnesses, or by her last will and
testament in writing, duly executed, bequeath or leave any
of the aforesaid slaves, or all of the same, to her said intend-
ed husband or any other person whomsoever. And nothing
herein contained shall be so construed, as to prevent the said
Catlierine from disposing of by will, deed, or otherwise, all
or any part of the above mentioned property, the right of
which to be transferred after her decease. In witness where-
of, &c.
This deed was proved, and recorded, in the office of the
Secretary of State of South Carolina, on the 29th June, 1827.
It was proved, that the parties were married on the day of the
execution of the deed, and continued to reside in South Car-
olina from that time, until the year 1835, when they removed
to Franklin county, Alabama, where the plaintiff James Ken-
nerly resided, and where they continued to reside, until the
levy upon' the slaves. The plaintiff proved they were the
same slaves mentioned in the deed ; that Kennerly and his
wife are yet living, and have children. The plaintiff also
read copies of the acts of the Legislature of South Carolina,
passed 8th March, 1785, of the 21st December, 1792, and of
the 20th December, 1823.
The plaintiff also proved, that one of the trustees had pos-
session of the slaves for two years, after the execution of the
marriage contract, in the State of South Carolina; that they
were then delivered into the hands of James C. Kennerly, the
JUNE TERM, 1847. 45
Cook v. Kennerly &. Smith.
husband, who has retained possession of them from that time
down to the levy.
The defendant produced, and read, sundry writs of fieri
facias, and of attachments levied on said slaves, and proved,
that these debts were contracted by J. C. Kennerly, after his
removal to Alabama, and while he was in undisturbed pos-
session of the slaves.
The defendant offered to prove, by a witness, that the hus-
band, J. C. Kennerly, and James Kennerly, the trustee,
had concealed the slaves, and endeavored to run them off, to
prevent their being levied on, and that at the time of the levy,
they were found concealed in the house of the trustee, but
the court rejected the testimony, holding that the acts and
admissions of the husband, or trustee, could not affect the
rights of Mrs. Kennerly, under the deed; and the defendant
excepted.
The plaintiff, by way of rebutting proof, produced and
read, a statute of South Carolina, passed 20th December,
1832.
The court then charged the jury, that if they believed the
evidence, the deed, although not registered in South Caroli-
na, was valid between the parties, and valid in Alabama,, as
to all the world, unless the creditors in the executions were
South Carolina creditors. That the statute of frauds, did
not require the deed of marriage settlement, under which the
plaintiff claimed, to be recorded in this State. That the
husband had not such an interest in the property, as could
be sold under execution, and that the rights of the wife could
not be affected by the acts of the trustees ; and if they per-
mitted the husband to have the possession of the property, it
did not affect the rights of the wife.
The court refused, on motion of the defendant, to charge,
that the power of revocation reserved to the wife in the deed,
avoided it, as to creditors and purchasers. That the permis-
sive possession of the husband,, was a loan by the trustees,
and if continued for more than three years, without registra-
tion, or without demand made, and pursued by due course
of law, the slaves were liable for the debts of the hnsband,
under the second section of the statute of frauds. That the
deed is void in favor of creditors, as to the slaves mentioned
46 ALABAMA.
Cook v. Kennerly & Smith.
ill tbe deed, as constituting an undivided moiety of the es-
tate of Frances C. Smith, under the act of South Carolina,
of 21st December, 1792. .To the charges given, and to those
refused, the defendant excepted, and now assigns for error,
the matters of law arising out of the bill of exceptions.
J. A. NOOE and J. B. SALE, for plaintiff in error.
L. P. WALKER and J. W. McCLUNG, contra.
ORMOND, J. The interesting question here presented, is
one which has frequently engaged the attention of this court,
and settled, so far as the decisions of this court can settle any
legal principle, commencing with the case of Harkins v.
Coalter, 2 Porter, 463, and running through most of the sub-
sequent volumes. The uniform tenor of these decisions is,
that to exclude the husband from the enjoyment of the es-
tate, and prevent his marital rights from attaching upon it,
there must be a clear and manifest intent to create a sepa-
rate estate in the wife. [Lamb v. Wragg and Stewart, 8 Por-
ter, 73 ; Dunn and wife v. The Bank of Mobile^ 2 Ala. 152 ;
Inge v. Forrester, 6 Ib. 418 ; Bank v. Wilkins, 7 Id. 589 ;
O'Neal v. Teague, 8 Id. 345. J
It is an inseparable incident, of a separate estate in the wife,
that the husband has no control, or dominion over it. As to
that estate, she is considered, and treated, as a. feme sole, and
hence, in many of the cases cited, the wife was held not to
have a separate estate, although the conveyance was to a
trustee for her use, because, although no estate, or interest
was in terms secured to the husband, by the deed, his con.-
trol, or dominion over it, was not necessarily excluded. This
case, however, is free from the difficulty which existed in
those referred to, as an express estate for life, is guarantied
to the husband, in the slaves and other property, which is ut-
terly hostile to the idea of the wife having a separate estate
in the same property.
But it has been strenuously argued, that from the recitals of
the deed, and the manifest design evidenced by making the
deed), as shown from the surrounding circumstances, it
was evidently the interest of the parties to create such an es-
tate as should not be subject to alienation by the husband, or
JUNE TERM, 1847. 47
Cook v. Kennerly & Smith. _
liable for his debts ; and that this intent, when ascertained,
will control the language employed by the parties. There
can be no doubt, it is the intent of the parties which is to
govern the construction of the deed, and that the intent, when
ascertained, if lawful, will be enforced. It is also true, that
no particular form of words is necessary to the creation of a
separate estate in the wife. But this intent to exclude the
marital rights of the husband, must be evinced by the lan-
guage employed in the creation of the estate. The sur-
rounding circumstances, such as the insolvency, or straitened
condition of the husband, and the fact even that the husband
and wife are parted, will not be sufficient evidence of an
intent to create a separate estate in the wife, in the absence
of language evidencing such an intent, in the creation of the
estate. [Palmer v. Trevor, 1 Vern. 261 ; Harkins v. Coal-
ter, supra, and many other cases decided in this court ; Clan-
cey on Rights, 263; and-2 Story Eq. 1381-2, and cases
cited Brown v. Clark, 3 Vesey, 166 ; Adamson v. Armitage,
19 ed. 416 ; Maberry v. Neely, 5 Hump. 337 ; Wills v. Say-
ers, 4 Madd. 409 ; Roberts v. Spicer, 5 Id 491 ; Lumb v.
Milnes, 5 Vesey, 517.]
If the surrounding circumstances could be looked to, to
control the language employed in the deed, it would avail
nothing in this case. The purpose avowed in the deed, is
to secure the property against accident, or misfortune, and as
it was made on the eve of marriage, the intention doubtless
was, to prevent the property from being wasted, by the im-
providence or prodigality of the husband. How did they
undertake to accomplish this ? Not by excluding the mari-
tal rights of the husband, and vesting the wife with a sepa-
rate estate, for this is sedulously guarded against, by giving
the use of the property to the husband and wife, during their
lives, and the life of the survivor, with a power of alienation
to the wife, to take effect after the death of herself, and hus-
band. The language of the deed, then, is in direct accord-
ance with the avowed, as well as the probable intentions of
the parties ; and it is a perfectly gratuitous assumption, that
they intended to create a separate estate in the wife. They
doubtless intended to create an unalie liable estate, and have
employed language appropriate to their intentions. It cannot
48 ALABAMA;
Cook v. Kennerly & Smith.
avail the parties, that this intention is one which the law will
not enforce, and that the husband will take the property dis-
charged from this illegal condition.. This is a consequence
which flows from thek acts, and they cannot be heard to say,
they did not intend the consequence which their deliberate
act imports.
One of the inseparable incidents of the ownership of per-
sonal property is, that it shall be liable for the debts of the
owner, and that a restraint upon its alienation is void. Bran-
don v. Robinson, 18 Vesey, 429. An exception obtains, in
the case of the separate estate of a married woman, which it
appears, may be so secured, that' the wife herself has not the
power to aliejiate it. [Tullet v. Armstrong, I Beavan, 3.1
But what right has this court to say, in opposition to the ex-
press language of the deed, that the husband was to have no
interest in the property ? How can it now be known, that
he would ever have consented to the creation of an unaliena-
ble, separate estate in the wife ?
If this is not the separate estate of the wife, it is liable "at
law to the debts of the husband, having been reduced to his
possession. This follows necessarily from the established
law, that the chattel interests of the wife, when reduced to
the possession of the husband, are his property. There is no
such thing known to the common law, as a partnership, or
community of goods between husband arid wife. In law
they constitute but one person, and cannot hold, either as
joint tenants, or as tenants in common. If, therefore, there
be a conveyance of land, to husband and wife, each is seiz-
ed of the whole. In the technical language of the books,
they are seized per tout and not per my. [2 Black. Com.
182 ; Doe ex dem. De Peyster v. Rowland, 8 Cow. 277 ;
Barber v. Harris, 19 Wend. L 617.] As a consequence of
this doctrine, if a conveyance were made of lands to hus-
band and wife, and a third person, the husband and wife
would take but one half the land, and the third person the
residue. In the case supposed of a conveyance of land to
husband and wife, the husband could undoubtedly dispose
of the estate of his wife in the land, during his own life, and
accordingly, in the case of Barber v. Harris, supra, it was
held, that he could mortgage it for that period. This being
JUNE TERM, 1847.
Cook v. Kennerly & Smith.
the law, as to the life estate of the wife in land, a fortiori,
must it be the law, when it is a chattel interest; reduced to
the possession of the husband.
There is however, a class of cases, with which this must
not be confounded these are those where an interest in pro-
perty is given collectively, to a married woman and her chil-
dren, for their support, and maintenance. In this class of
cases, if the husband, in virtue of his marital rights, has an
interest in the property, it cannot be subjected at law to the
payment of his debts, but his interest, (if any he has,) can
only be reached in equity, where the respective interests of
the wife, and children, can be ascertained, iand separated.
The case of Fellowes and others v. Tann, 9 Alsj,. 1002, and
Spear v. Walkley, 10 Ala. 328, are of this description. In
both of these cases, it was held, the interest of the*rVusband
could not Jbe sold at law, as that would destroy the trust; and
in both, the question was left open, whether the husband had
such an interest as could be reached in equity. See also the
case of Rugely &. Harrison v. Robinson, 10 Ala. 702, where
a kindred question was discussed at great length.
The facts of this case are entirely different. This is the
creation of a life estate in the husband and wife, with a re-
mainder to the children. They have no interest whatever
in the slaves, which are the subject of the conveyance, dur-
ing the lives of their parents, which, as in the cases cited,
would entitle them to a portion of the proceeds of their labor
during the continuance of the life estate : and have indeed
but a contingent interest in the remainder, as their mother
has the power, by deed or by will, to dispose of all, or any
part of the estate, to take effect at her death.
The case of Scott v. Gibbon, 5 Munford, 86, is a decision
adverse to the view here taken. It is to be remarked that no
authority is cited in support of the decision of the conrt, and
it appears to have been made without sufficient consideration.
This was afterwards followed, in the cases of Hughes v.
Pledge, 1 Leigh, 443, and Roans v. Archer, 4 Id. 569 ; but
these cases are decided upon the authority of the preceding
case, without inquiry or examination.
We will next consider, how the interest of the husband, in
this property, may be subjected to the payment of his debts.
7
ALABAMA.
Cook v. Kennerly & Smith.
As to his own life estate, it is obvious it is a pure legal estate y
and may be sold under execution ; and the question in re-
spect to the life estate of the wife, reduced to his possession,
has been also decisively settled by the decisions of this court
that it may be reached by execution at law.
In some of the cases previously cited, the property had
been conveyed jointly to husband and wife ; and in others
to a trustee for the benefit of the wife alone. In Lamb v.
Wragg and Stewart, 8 Porter, 73, the conveyance was to the
husband as trustree, which trust he had resigned, and an-
other had been appointed in his stead. The husband being
in possession, it was held that his interest in the property
could be sold under execution, but whether the fact, that the
legal title was outstanding in another, interposed any obsta-
cle to a" Sale at law of the husband's interest, does not appear
to have been made in the argument of the cause, or consid-
ered by the court. But this point distinctly arose in judg-
ment, in the case of Nelson, Carleton & Co. v. Banks, 7 Ala.
32. There the wife had a life estate in a slave, the legal ti-
tle being in a trustee, and the husband having reduced the
slave to his possession, it was held his interest could be sold
by execution at law, against him. This decision was af-
firmed in The Bank v. Wilkins, 7 Ala. 592, and in O'Neil v.
Teague, 8 Id. 345. In both of these cases, the legal title
was in a trustee, but the possession being with the husband,
was held subject to levy and sale for the payment of his
debts; and in all, as in the present case, there was a re-
mainder over, to the children of the husband and wife.
In this State, it has long been the settled doctrine, that
similar equitable, chattel interests, could be sold by execu-
tion at law. In McGregor & Darling v. Hall, 3 S. &f P.
397, this court held, that the possessory interest of a mort-
gagor, in slaves, could be sold by execution against him at
law; and in Williams and Battle v. Jones, 2 Ala. 314, the
present court held, the law thus settled, applicable to the ma-
ker of a deed of trust. This has been, acted on from that
day to the present time, and a multitude of such sales have
been made. With what propriety can a distinction be made
between such cases, and the present ? Why should a dis-
tinction be made, between the case of a legal title outstand-
JUNE TERM, 1847.
Cook v. Kennerly & Smith.
ing in a trustee, in a deed of trust, to secure the payment of
debts, and an outstanding legal title in a trustee, to preserve
a remainder ; the use, and right to the possession, being
guarantied to another for life ? In both classes of cases, the
right to use, and possess the property, is guarantied for a cer-
tain, specified period. It is not a mere right to the profits,
arising from the employment of the thing conveyed,, but it is
a right to the use, and enjoyment of the thing itself. It is
something, real, visible, tangible. Although it may be called
a use, it is in truth, and in fact, the ownership of an estate in.
the property, for the life of the tenant. The mere naked
title, outstanding in a trustee, to preserve the remainder,
gives the trustee no power over the possessory interest of the
tenant for life ; and it appears to us, that in principle, there
is not a shade of difference, between the interest of the hus-
band in such cases as the present, and the possessory interest
of a mortgagor, or maker of a deed of trust. When he is to
all practical purposes the owner of the property during his
life ; when he may sell, and transfer his interest to another,
why may not the same thing be done by the sheriff. The
effect in both cases is precisely the same. In either case,
the purchaser obtains, with the possession, the life estate, of
the tenant, and if the remainder is exposed to improper haz-
ard, a court of equity will interpose, and protect it. In what
respect does such an estate as this, differ from a lease-hold,
real estate, or from the unexpired term of hire in a slave ;
yet no doubt can be entertained, that in either of these cases,
the estate of the tenant could be sold by execution at law.
It would be yielding the substance, for the shadow, to hold
that there was any difference between them.
We have examined with great care, the decision made by
the majority of the Court of Appeals in South Carolina, in
the case of loor v. Hodges, 1 Spears' Eq. 593, where it was
held, in a case similar to the present, that the interest of the
husband in possession, could not be sold by execution at law.
It is not necessary that we should examine the previous de-
cisions of that court, to ascertain whether, as contended by
the dissenting judge, the judgment there rendered, was in
hostility with them. The decision there made, impliedly
recognizes, that the interest of the husband could be reached
52 ALABAMA.
Cook v. Kennerly &. Smith.
in equity, and in a question relating to the remedy, it cannot
be expected we should abandon the decisions of our own
court, long since made and acquiesced in, upon the authority
of any tribunal, no matter how weighty it may be, even if
we did not consider the decisions of this court abstractly
correct.
An argument has been urged, founded upon the phraseol-
ogy of the deed, by which the slaves are conveyed to the
trustees, "in their actual possession." The argument is,
that the possession is conveyed to the trustees, and that the
beneficiaries are only entitled to the profits of the labor of
the slaves. The deed was executed previous to the mar-
riage, which may perhaps explain why the actual possession
was conveyed to the trustees, as well as the legal title ; it is
however conveyed to them in trust, for the use of the hus-
band and wife. The use of the slaves, implies the right of
possession, which would alone render the use effectual or
beneficial, by their employment as domestics, or in agricul-
tural pursuits. It is the habit of the people of the southern
states, to derive a revenue by the employment of their slaves
in agriculture, and it is most unreasonable to suppose, it was
intended these slaves should be hired out by the trustee,
during the whole continuance of this marriage, and indeed
until the death of the survivor. Admitting that the deed
could have been so drawn, as to exclude both husband and
wife from the possession, and confine them to a perception
of the profits arising from the employment of the slaves, in
this case they are entitled by the terms of the deed, to the
use of the slaves, and that authorised them to have the pos-
session. We think the trustees construed the deed correctly,
by delivering the possession of the slaves, and that they
could not rightfully have withheld it. If this were not the
correct exposition of the deed, they certainly have the
power under the deed, to permit the beneficiaries to have
the possession of the slaves, if in their judgment it was the
most appropriate mode of executing the use, under all the
circumstances of the case. Having, in the exercise of their
discretion, delivered the possession to the husband, the trust
is executed, although the naked legal title may remain in
them, for the purposes of the remainder, subject to the con-
JUNE TERM, 1847. 53
Cook v. Kennedy & Smith.
tingency of the wife conveying the title to her husband, or
some other person during her life.
This case is not within the second section of the statute
of frauds. That applies to a possession, held under a loan,
or where there is a reservation by way of condition, reversion
or remainder, retained by another. In such cases, after a
possession of three years without a registration of the deed,
disclosing the nature of the estate, the absolute property is as
to creditors and purchasers, considered to be with the pos-
session ; or in the language of the act, to be considered
fraudulent. But here the possession is where, by the terms
of the deed, it should be. It is not a loan, nor is there any
reservation of an interest by the trustees. Whether the pro-
perty in the hands of the trustees, without registration of the
deed under which they held, would not be liable for the pay-
ment of their debts, is an entirely different question. That
is the effect of the case of Craig v. Payne, 4 Bibb, 337, re-
lied on by the counsel for the plaintiff in error, but it has no
application here.
The marriage settlement being made in South Carolina, its
legal effect must be ascertained by the law of that state. By
the law of that state, such instruments, if not recorded in a
mode pointed out, are declared to be void as against creditors.
But an act of the same state declares, that such settlement,
though not recorded, " shall be regarded as valid, between
the parties themselves." Being valid between the parties to
it in South Carolina, where it was made, that must be its ef-
fect here. The provision in relation to creditors can have
no extra territorial efficacy, as a law, and was not intended
to apply, except to, debts created, or attempted to be enforced
in South Carolina.
Other points were presented upon the record, and were ar-
gued here, but we abstain from their consideration, as we
presume the questions decided will suffice upon another trial
for the decision of the cause.
Our^udgment is, that upon the facts stated on the record,,
the life estate of the husband, and of the wife, during the life
of the former, in the slaves in controversy, are liable at law
for the debts of the husband.
Let the judgment be reversed and the cause remanded.
54 ALABAMA.
Dickinson v. The Branch Bank at Mobile.
DICKINSON v. THE BRANCH BANK AT MOBILE.
L When a bill of exchange is drawn in this State, payable " at the Mer-
chants Bank in the city of New York," this court will take judicial notice
that the city of New York, is the commercial city of that name, beyond the
limits of this State.
2. When a bill is drawn within this State, payable at a place beyond its lim-
its, interest, and damages cannot be recovered of the acceptor, upon its
dishonor, without proving the law of the place of payment, giving such
damages, and interest.
3. It is no objection that interest, and damages for non-payment, are in_
eluded in the same entry of judgment, without specifying the amount of
each, separately.
Writ of Error to the Circuit Court of Mobile.
THIS was a proceeding by notice and motion, at the suit of
the defendant in error, against the plaintiff, as the acceptor
of a bill of the following tenor :
" $1,000. Mobile, May 31, 1841.
Sir On the 20th day of December next, pay to David
Files, or order, one thousand dollars, (this my second ex-
change, .first of the same tenor and date unpaid,) negotiable
and payable at the Merchants' Bank in the city of New York,
for value received, and charge the same to the account of
Your ob't servant, WM. CRAWFORD.
To WM. C. DICKINSON, Esq., Mobile.
On the 30th of November, 1846, a judgment by default
was rendered by the circuit court against the defendant be-
low for "thirteen hundred and ninety-eight 60-100 dollars,
the amount of said bill of exchange, and the interest and
damages thereon," together with costs. This judgment re-
cites that thirty days notice of the motion had been given to
the defendant ; that the plaintiff produced the certificate of
"C. C. Clay, F. S. Lyon. and Wm. Cooper, commissioners
and trustees under the act of the General Assembly of said
JUNE TERM, 1847. 55
Dickinson v. The Branch Bank at Mobile.
State, to regulate the affairs of the banks, and provide for the
payment of the State bonds, approved 4th February, 1846,
that the said debt is really and bonafide the property of the
said Branch Bank." In the transcript, a notice of the mo-
tion, and a certificate, is copied in extenso, both of which are
drawn up in the names of Francis S. Lyon, Charles C. Clay,
and Wm. Cooper, as commissioners and trustees, &c.
W. CRAWFORD, for the plaintiff in error, insisted that the
acceptor of a bill of exchange was liable for interest after pro-
test, according to the laws of the place where the bill was
payable. [4 Pet. Rep. 123 ; 8 Mete. Rep. 107.] The de-
cision heretofore made by this court, that the drawer of a bill
in this State, payable elsewhere, will be chargeable with in-
terest according to the laws of this State, because the sta-
tute gives interest on a protested bill against the drawer and
indorser, does not embrace the present case.
The certificate of the commissioners, that the bill is the
property of the bank, being required by the statute, is a part
of the record; and the court must know that Charles C. Clay,
is not the name of either of the commissioners : Further, the
certificate purports to be signed by H. B. Holcomb, as attor-
ney for the commissioners, and there does not appear to have
been any proof of his authority.
It has been decided by this court, that the acceptor of a
bill is not liable for damages, ye in the present case, judg-
ment is rendered for both interest and damages, without spe-
cifying the amount of each.
J. W. LESESNE, for the defendant in error, insisted that it
must be intended, from the bill being addressed to the accep-
tor, at Mobile, that it was there accepted by him, and the
transaction was between citizens of this State. This being
so, the law of the place of contract governs. [Arnot v. Red-
fern, 2 Car. & P. Rep. 88.]
It cannot be known judicially, that 'the city of New York'
is not within the State, where the record is entirely silent
upon the subject. And the fact of the bill being payable at
the ' Merchants Bank,' can have no influence in attaining
such a conclusion.
ALABAMA.
Dickinson v. The Branch Bank at Mobile.
The objections to the certificate, that the plaintiff below
was the bona fide proprietor of the bill, even if well taken,
cannot avail the defendant. The judgment entry recites a
proper certificate, and that professed to be copied in the tran-
script, is no part of the record.
Judgment is not rendered for the statute damages allowed
against the drawer of a bill drawn in this State this will be
ascertained by calculating interest since the dishonor of the
bill ; which added to the principal, makes the aggregate of
the recovery.
COLLIER, C. J. In Hanrick v. Andrews & Bros. 9 Por-
ter's Rep. 9, it was decided that where parties enter into a
contract, without any stipulation for interest, but upon which,
on default of payment, interest accrues, its rate must be ad-
measured by the laws of the country where the contract was
made ; unless the parties contracted in reference to another
jurisdiction, in which case the lex loci solutionis will govern.
A bill thus drawn in N. York, payable in Alabama, if not paid
at maturity, will draw interest according to the law of the
latter, when sought to be enforced against the acceptor. His
"undertaking is absolute and direct to pay at the place where
upon its face the bill is payable. In legal effect his accep-
tance is equivalent to the making a promissory note ; and in
such case the law of the place of payment ascertains the in-
terest, if the law is silent in respect to it. See also Story
on Bills, <> 148, and citations in note.
Crawford v. The Branch Bank at Mobile, 6 Ala. R. 12,
merely determines, that according to the rules of the law
merchant, as well perhaps as a proper construction of our
statute, the interest upon a dishonored bill, drawn in this
State, on a person drawn in some other, when sued against
the drawer, must be governed by the laws of Alabama in re-
spect to interest. This decision is clearly correct, and de-
pends upon reasoning which cannot be applied to the case at
bar.
It must be intended, that the " city of New York," as ex-
pressed in the bill, is our great commercial emporium a
point at which quite half the revenue of the nation is col-
lected from duties on imposts a place recognized by almost
JUNE TERM, 1847.
Bickinson v. The Branch Bank at Mobile.
numberless acts of Congress, both public and private. This,
independently of the history (statistical and general) of the
country, forces on us a knowledge of the geography of New
York, and that if' is extra territorium. The cases of Har-
grove, Smith & Co. 1 Ala. Rep. 80, and Smith v. Robin-
son, at the last term, go as far to limit judicial intendment on
this point as we feel inclined, yet we are now called on to
go quite beyond them. This we cannot do, without disre-
garding the influence both of reason and precedent.
In Hanrick v. The Farmers' Bank of Chattahoochie, 8
Porter's Rep. 539, we held, that the damages given by sta-
tute upon the dishonor of a bill of exchange were not recov-
erable of the acceptor of an inland bill. The same rule, up-
on a just construction of our statute, wes think must hold,
where a bill drawn here is payable in another State, if it
does not appear that the laws of the latter give damages in
such a case.
Upon calculating the interest according to the law of this
State, we discover that the judgment does not embrace the
statute damages. If a judgment for both interest and dama-
ges, could be supported in the condition of the record, it
would be no objection that the clerk omitted to state in the
entry, the several amounts of each if the recovery did not
exceed the aggregate of both. The old, and strict rule up-
on this subject has long yielded to the progressive spirit of
more enlarged and liberal views of justice.
For the error of the circuit court in rendering judgment
by default, for interest, and in the absence of evidence show-
ing what the law of New York is upon the subject, the judg-
ment is reversed and the cause remanded.
ALABAMA
Qnigley v. Campbell & Cleveland.
,JF* iuua :>(.!'
^ dUIGLEY v. CAMPBELL & CLEVELAND.
1. Where transcripts of records are referred to by the bill of exceptions, but
are not certified with the record as a part of it, although attached to the
transcript, this court will not consider them, as there is nothing to show
they were the same, used at the trial.
2. Where transcripts are so attached, and the counsel for the plaintiff in er-
ror states he is surprised by an objection to the record at the argument in
this court, and asserts they were the same used at the triaVthis will war-
rant a eertiorari, although moved for after argument of the cause.
3. Where a judgment is rendered against the plaintiff for a specific sum in
a suit commenced by him as administrator, without directing the recovery
de bonis testatoris its legal effect, until demanded, is de Ionia propriis, and
MB such it cannot be given in evidence under a declaration describing it
tut de btmit testatoris.
4. The judgment obtained against the plaintiff hi a suit by him as adminis-
trator under our statute of set-off, even when properly entered de bonia to-
tatoris, is no evidence of assets in a suit upon it for a devastavit.
5. In such a suit on such a judgment, the record of the settlement by the ad-
ministrator, although of a part of the administration, is admissible evi-
de'Dce, as it, with the vouchers, may show the amount of the debts against
the estate, the periods when paid, and the extent to which the party is lia-
ble for the alledged devastavit.
Writ of Error to the Circuit Court of Mobile.
v '
DEBT by Campbell <fc Cleveland against Mrs. duigley.
The declaration asserts that the plaintiffs, at the fall terra,
1838, of the circuit court of Mobile county, recovered a judg-
ment against the defendant, "as administrator of all and sin-
gular, the goods and chattels, rights and credits, whjch were
of William duigley at his death ;" and that afterwards, that
is to say, "at the fall term of said court, for the year 1838,
it was considered by the said court that the plaintiffs should
have execution against the defendant, administratrix as afore-
said, to be levied of the goods, &c. which were of the said
William at the time of his death in the hands of the said de-
fendant, administratrix as aforesaid, to be administered." A
devastavit is then asserted, and the declaration concludes in
the usual manner.
JUNE TERM, 1847. 59
Quigley v. Campbell & Cleveland.
At the trial, the plaintiffs offered in evidence the transcript
of a judgment had in a suit brought by Mrs. Giuigley, as ad-
ministratrix of Wm. duigley, against Campbell & Cleveland,
on promises to the intestate, which is in these terms : "Eliza
duigley, administratrix of William 'duigley, deceased, v.
Wm. A. Cleveland and James Campbell. This day came
the parties, by their attorneys, and thereupon came a jury,
to wit, J. S. and others, who, &c. find for the defendants,
and certify from the items before them, that there is a bal-
ance due from the plaintiff to the defendants of $1223. It
is therefore considered by the court, that the plaintiff take
nothing by her action, but that the defendants go hence, and
recover of her the sum of $1223, the amount certified to be
due them by the jury aforesaid, and the costs in this behalf
expended." The defendant objected to this judgment as in-
admissible, but it was allowed to be read.
The plaintiffs then proved by a witness, that he, as auc-
tioneer, had sold certain slaves, in 1836, at the instance of
the defendant, as administratrix, and that the sales amounted
to about $18,000. They relied on this proof to show that
assets had come to her hands. The defendant then intro-
duced, and offered to read the records of the orphans' court
of Mobile county, of the administration of the estate of Wm.
duigley, showing the appointment of the defendant as ad-
ministratrix, on the 15th March, 1836 that she filed an in-
ventory of the assets, as well as an account of sales, and that
a settlement of said estate had been had, and a final decree
rendered by that court, in which credit was given for the
slaves sold. This evidence was excluded at the instance of
the plaintiffs as incompetent, because the estate was not re-
presented insolvent, and no part of the record was sufficient
to be given in evidence. The excluded evidence is referred
to by the bill of exceptions, in these terms : " copies of which
record's, as far as material, are hereto attached as part of this
bill."
In the transcript, the record of the judgment in the suit of
Mrs. Quigley against Campbell and Cleveland, as well as
that of the proceedings on the estate of Mrs. Quigley, in the
orphans' court, are not appended or annexed to the bill of
exceptions, but are copied npon the "writ of error, citation and
ALABAMA.
Quigley v. Campbell & Cleveland.
certificate of the transcript, as containing the record of the
cause now before the court, but are not in any way verified
as being the proceedings which are referred to in, and made
part of the bill of exceptions.
The admission of the judgment in favor of Campbell and
Cleveland, and the exclusion of the record of the proceedings
in the estate of William Quigley, are now assigned as error.
J. A. CAMPBELL, for the plaintiff in error, insisted
1. The judgment was not admissible, because it is not that
described in the declaration. [Van Horn v. Teasdale, 4
Halst. 379.]
2. A suit for a devastavit cannot be sustained, until there
is a judgment finding assets in the hands of the administra-
tor, and subjecting them to the payment of the creditor's
debt. [Wms. on Ex. 1223 ; 2 Lomax, 458.] So a judg-
ment quando acciderint will not sustain a suit for a devasta-
vit, [2 Lomax, 454, $ 18, 30.] And the one in this case is
of no higher degree. [Quigley v. Campbell and Cleveland,
5 Ala. Rep. 76.]
3. The record of the settlement in the orphans' court was
proper to show what disposition was made of the assets of
the estate. It may have been, that the assets of the estate
were exhausted in paying debts before the plaintiffs' demand
was notified to the defendant. The suit in whidh the set-
off was certified was commenced in April, 1837, and deter-
mined in December, 1838. Besides this, if all the assets
were not sufficient to pay all the creditors, the defendant
could only be liable pro rata to the plaintiffs, even in case of
a devastavit, and this could be shown by the settlement,
which the statute declares shall be evidence. [Digest, 304,
4 37; Simkins v. Cobb, 2 Bailey, 60; Burrus v. Barton, 1
A. K. Marsh. 349; 2 Lomax, 311; 8 Verm. 234.]
HOPKINS, contra, insisted
1. That neither of the matters excepted to could be exam-
ined, because the records were not attached to the bill of ex-
ceptions, or certified by the clerk as being those which were
so attached. [Haden v. United States, 4 Porter, 396.]
2, But if the exceptions can be examined, the judgment
JUNE TERM, 1847. __61
v. Campbell &. Cleveland.
was admissible, because the entry sfyows the suit was by the
defendant in her representative character, and therefore the
judgment is against her in that character also. It is properly
declared on as such a judgment, that being its legal' effect.
[1 Porter, 510; 2 Ib. 236.]
3. The record from the orphans' court was not admissible,
because it shows the county judge had no jurisdiction over
the cause, he having certified that he was interested in the
settlement, and commissioners having been appointed to act
by a judge of the supreme court. After this appointment,
the county judge had no authority, yet the proceedings are
before him, and consequently void, there being no repeal of
the authority to the commissioners.
2. It was also properly excluded, for the reason that it does
not show that the money paid out by the defendant for the
estate was all paid before the plaintiffs obtained their judg-
ment, or paid after she had notice of their demand.
3. The proceedings in the orphans' court are not evidence
against a creditor, as he is not a party to them, and therefore
is not bound by them ; nor is the settlement in this instance
one that is final,- as it purports to be a settlement only so far
as the administratrix had proceeded.
4. The judgment which was given in favor of the plain-
tiffs, and which is made the foundation of this suit, is not one
quando acciderint, but is authorized by the statute. [Dig.
338, 141.] Being a proper judgment, it is as much an ad-
mission of assets as any other. [2 Wms. Ex. 1200, et seq.;
Burke v. Adkins, 2 Porter, 236 ; Garrow v. Emanuel, 3 Stew.
285.] The plaintiffs had the legal right to interpose their
demand as a set-off to the suit of the defendant, and the
judgment recovered on that set-off is as much a legal judg-
ment as if it was rendered in a suit directly against the ad-
ministratrix.
5. But independent of the judgment, the proof showed as-
sets, and it was incumbent on the defendant at least to dis-
charge herself. [6 Porter, 398.]
GOLDTH WAITE, J. 1. We think the exception to the
records attached to the transcript is well taken, and that the
Certificate of the clerk, being attached to the bill of excep-
62 ALABAMA.
Quigley v. Campbell and Cleveland.
tions, without the exhibits, there is nothing in the transcript
to show these were the same referred to by the bill.
2. But understanding the counsel for the plaintiff in error
as stating, be is surprised by the objection now taken, and
that he considered the exhibits as certified by the general
certificate, as well as vouching that these exhibits were the
same as used at the trial, we think it a proper case for the
allowance of a certiorari.
Afterwards, the counsel for the defendant waived the issu-
ing of the certiorari, and consented the exhibits should be
considered as regularly certified.
3. Upon the merits' of the case, there is small room for
controversy. The judgment described in the declaration, is
one against Mrs. duigly debonis testatoris ; that offered in
evidence is de bonis propriis. That this is its legal effect, is
abundantly shown by the cases in this court, in which pre-
cisely the same judgment entered in a suit against an admin-
istrator in his representative capacity, has been held at first
a proper ground for reversal, aad subsequently a matter of
amendment in this k court. [Weatherfbrd v. Weatherford, 7
Porter, 171; Oliver v. Hearne, 4 Ala. Rep. 271; Scott v.
Yarborough, 5 Ala. 221.]
If then, the judgment requires to be amended, before the
plaintiff can proceed to have execution de bonis testatoris, it
is clear such is not its legal effect until amended. That such
a judgment is not admissible when one de bonis testatoris, is
alledged in Van Horn v. Teasdale, 4 Halst. 379. In our
judgment, the court erred in not excluding the record offer-
ed in evidence.
4. The other exception requires us to determine the effect
which this judgment would have against the defendant if
properly entered against her in her representative character.
This was passed on to some extent in the case of Quigley v.
-Campbell, 5 Ala. Rep. 76. We there say, in effect, that a
judgment obtained by the defendant against an administrator
plaintiff, under the provisions of the statute of * set off, can-
not be construed as an admission of assets. The reason why
a judgment under this statute has no effect as proof of assets
against the administrator, is, that no opportunity is afforded
to contest the fact of assets, to answer the particular debt as-
JUNE TERM, 1847. 63
Quigley v. Campbell aqd Cleveland.
eertained. If the plaintiff to a plea Of set off was to reply a
plea of plene administravit, she would admit the set off, and
as the law stood at the time of the enactment, double repli-
cations were not allowed. [1 Chit. Plead. 614.] Under the
act as it was first enacted in 1799, an execution was not al-
lowed in the first instance, but in all cases the party was to
be called on to show cause why one should not go for the sum
certified to be due. [L. of Al. 457.] Its subsequent alteration
in 1827, although it allows execution to issue at once upon
the judgment, does not prescribe that any effect shall be
given it when against an administrator, as an admissjon of
assets, and it seems to us a harsh and unreasonable construc-
tion, when full effect can be given otherwise to its terms.
No injury is done to the plaintiff by requiring him to estab-
lish that assets have come to the hands of the administrator,
out of which he is entitled to payment, either in full or in
part, and without such proof, there is no justice whatever in
allowing him to recover.
5. This construction of the statute, as it casts the onus of
showing assets upon the party alledging the devastavit, inde-
pendent of the judgment, also lets in the administrator to
show their proper administration, previous to the fixing of
his liability, either by notice of the debt, or by obtaining the
judgment ; and for this purpose it seems to us, the record of
the proceedings in the orphans' court was admissible evi-
dence. The statute provides, that " the documents and evi-
dence of all settlements made with executors, administrators,
and guardians, shall be carefully preserved, and the settlement
entered of record ; which evidence, vouchers, documents and
settlement, shall be good evidence in any suit for and against
such executor, &c., and shall not be impeached except for
fraud in obtaining the same." [Dig, 304, <> 37.] The ob-
ject of this enactment was, doubtless, to provide a security
to persons acting in this capacity, that the vouchers, <*c. pass-
ed upon as correct by the judgment of the orphans' court,
should be at least prima facie evidence of the facts stated by
them in any collateral suit. Without some such effect be
given, the inconvenience to this class of persons would be im-
*
'
64 ALABAMA.
Rumph v. Abercrorabie.
mense, if they were recfuired to make out by extraneous evi-
dence, the correctness of every payment made, or other ad-
ministration of the assets by them. It will be seen we give
no opinion upon the effect of this record, as it is uncalled for
by the case presented ; but we cannot doubt, that if the
vouchers or settlement established the administration by the
present defendant, of the assets of the estate, the amount of
the debts against it, or the periods when they were paid, these
facts were important in ascertaining whether there was a de-
vastavit, as well as the extent to which the defendant is re-
sponsible to the plaintiffs. Upon both grounds excepted to,
we think the court erred.
Judgment reversed, and cause remanded.
RUMPH v. ABERCROMBIE.
1, A court of chancery has jurisdiction to sel aside a deed, conveying either
land or slaves fraudulently obtained.
2. A contract for the sale of slaves at an inadequate price, obtained by an
abuse of confidence, reposed iu the vendor, by the vendee, will be set a-
side in equity, especially in a case, where the vendor was in a weak con-
dition of body, and in a gloomy, unsettled state of mind, so as to be pecu-
liarly liable to imposition.
Error to the Chancery Court of Macon.
BILL filed by defendant in error, alledges, that complain-
ant's intestate, was the owner thereof, and in possession of
five slaves, a negro woman and her four children. That his
intestate, before, and up to the time of her death, lived on
the premises of defendant, who was'gr'shrewd, subtle, crafty
man and the deceased, old, weak minded, imbecile, and in-
firm, and long before, and up to the time of her death, whol-
JUNE TERM, 1847. 65
Rumph v. Abercrombie.
ly incapable of protecting her interest, or of attending to her
business. That shortly before her death, the defendant, un-
der the guise of friendship, and by fraud, and false represen-
tations, obtained the possession of the slaves, and now holds
them under a pretended bill of sale, by which the deceased
appears to have acknowledged the receipt of one thousand
dollars ; but complainant charges that he never paid any
thing, and that one thousand dollars is not more than half
their value. That the defendant had the most perfect con-
trol over the deceased, and that she regarded him as her friend,
and protector, and that he obtained the slaves by a fraudulent
abuse of his influence over her.
The bill also charges, upon information and belief, that
the conveyance was merely intended as a mortgage, to se-
cure the repayment of money advanced by the defendant,
for the deceased. That the negroes are family slaves, to
which complainants are much attached, having been raised
with them, $'c.
The prayer of the bill, is for the cancellation of the bill of
sale, the delivery of the slaves, and for general relief, &c.
The defendant answered the bill, and admitted that the
deceased resided on his premises, for about a month previous
to, and at her decease. That she was affected with dropsy
of the chest, and from that cause infirm of body for some
time previous to her death, but denies that she was very old,
weak minded, &c., but on the contrary asserts, that she was
possessed of a sound mind, sane memory, and vigorous in-
tellect, up to the time of her death, and fully able to dispose
of her property in a prudent, judicious manner. That the
deceased, previous to her removal to defendant's premises,
proposed to sell him the slaves, but declined at that time to
fix the value, or put a price on them, stating that she pre-
ferred a postponement until after her removal to the premises
of defendant ; and in the mean time would reflect upon it,
and make up her mind as to their value.
Shortly after her removal, in October, 1844, she again pro-
posed to sell the slaves to him, and offered them for $1,000,
in ten equal annual payments defendant objected to pur-
9
66 ALABAMA.
Humph v. Abercrombie.
chase on these terms, and offered her $800 in cash, which he
considered at the time as their full value ; but she declined
that proposition, and desired the payment by instalments, for
the benefit of her young children. That under these cir-
cumstances, and after much persuasion, he became the pur-
chaser of the slaves, upon the terms proposed by her, in good
faith on his part.
After the contract was made, it was agreed between him,
and her, that he should furnish her with such household fur-
niture, family supplies, and other necessaries as she wanted,
to the amount of one, or more of the notes executed by him.
That he did furnish such articles as she wanted, to the a-
mount of $180 37, and that his medical services are worth
$120. That she died on his premises, leaving her property
unprotected ; that therefore he took possession of the notes
executed by him for the slaves, three of which he retains to
pay his claim against her, and the residue he brings into
court. He makes an exhibit of the conveyance of the slaves
to him, dated the loth October, 1844. He denies all fraud,
&c., &c.
The testimony, so far as it is important, will be found in
the opinion of the court.
The chancellor considered, that the facts established, that
the defendant had purchased the slaves from the complain-
ant, by taking advantage of the influence he had obtained
over her, and had availed himself of her weakness, to obtain
an unconscionable bargain from her ; set the contract aside,
directed him to deliver up the slaves, and ordered an account
to be taken.
From this decree the defendant prosecutes this writ, and
his assignments of error open the entire case.
GUNN, for plaintiff in error, insisted that the allegations of
the brill were not sustained by the proof. That the weight
of evidence was decidedly in favor of the defendant, both as
to the capacity of the vendor to make the contract, and the
fairness of the contract which was made, as shown by the
price given. 'That if the price was not fully adequate, it was
not so grossly inadequate as to be evidence of fraud. He
cited Hardernan v. Sims, 3 Ala. 747 : Bibb v. McKinley, 9
JUNE TERM, 1847. 67
Rnmph v. Abercrombie.
Porter, 636 ; Bibb v. Smith, 1 Dana, 582 ; Jer. Eq. 395 ; 2
Vesey, 155 ; Todd v. Hardie, 5 Ala. 698 ; Morris v. Bartley,
2 J. J. M. 374; Thompson v. Jackson, 3 Rand. 504; Gist v.
Prazier, 2 Litt. 18 ; Bozman v. Draughan, 3 Stew. 243 ; En-
glish v. Lane, 1 P. 328 ; Juzan v. Toulmin, 9 Ala. 663.
McLESTER, contra.
ORMOND, J. The objection to the jurisdiction of chan-
cery, upon the ground that there is no sufficient allegation in
the bill, to authorize a recovery of these negroes, as " family
slaves," need not be considered, as it is perfectly clear, the
court of chancery has jurisdiction to set aside a deed fraudu-
lently made, or obtained, of either land, or personal property
and it is no answer to this, that a court of law has concur-
rent jurisdiction in cases of fraud. [1 Story's Eq. 68, 60,
and cases there cited.]
We are then to consider, whether the conveyance of the
slaves in this case, was obtained by the defendant, under
such circumstances as require a court of equity to cancel the
contract.
An old woman, in the last stage of a mortal disease, and
greatly depressed in spirits, without, as it appears, a home,
and in want of the ordinary comforts of life, but possessed of
five slaves, is carried by the defendant, who is a physician,
to his house, for the purpose, as alledged of taking care of
her and her children. On the third day after her arrival at
his house, she conveys to him the slaves, at the price of
$1000, on a credit of ten years, secured by ten notes of one
hundred dollars each, with a cotemporaneous agreement, that
the defendant should furnish her such articles of household
furniture and provisions as she might need, to be taken out
of the notes executed by him. These facts are certainly cal-
culated to arouse suspicion of the fairness of the transaction.
This suspicion, an examination of the testimony shows to be
well founded, and makes out a case which calls for the inter-
ference of a court of equity.
It is distinctly alledged in the bill, that she was incapable,
from bodily and mental infirmity, of protecting her interests,
68 ALABAMA.
Rumph v. Abercrombie.
or attending to her business for a considerable period, ante-
rior to the making of this contract, and down to the time
when it was made. That she was in this condition previous
to her removal to the defendant's house, is conclusively es-
tablished by the witnesses Merrill, Crabtree, Spence, M. Crab-
tree, Sizemore, and Dr. Cloud. These witnesses, who knew
her will, and most of them long before her death, all concur
in' stating, that she was unable to attend to her business, or
make contracts. The last witness, Dr. Cloud, was her phy-
sician during the year she died, to the latter part of August.
He says she had a complication of diseases had fits of deli-
rium. That her mind was in an unsettled, gloomy condition.
That she was entirely incompetent to the discreet manage-
ment of her business, and might be easily imposed on. He
thinks she had not sufficient capacity to make a contract.
On the other hand, the defendant by his answer denies the
allegations of the bill, and insists that she was fully compe-
tent to attend to her business, and he has introduced several
witnesses, who saw her at his house, and who swear that
they think she was able to contract understandingly, in refer-
ence to her property. We do not think this testimony enti-
tled to the same weight as the preceding, as these witnesses
had but a casual knowledge of, or acquaintance with her, and
might therefore be deceived. We think, however, that the
result of the testimony is, that she was not non compos men-
tis, at least at all times, but that she was in a low, weak con-
dition of bcdy, and from the gloomy condition of her mind,
as described by the witnesses, peculiarly liable to imposition,
by one in whom she reposed confidence ; and such we think
is the result of the proof.
The defendant removed the deceased to his house, upon a
promise on his part, to take care of her and her children, and
the third day after her arrival, he purchases the slaves. The
reason assigned for the unusual credit of ten years, without
interest, is, that the deceased desired to keep the proceeds
of the sale from being wasted after her death, and as a fund
for her children ; yet it appears that at the time she was
without a home, and destitute of the comforts, as well as the
necessaries of life ; arid as this was the only property she
possessed, it must have been looked to as the only means of
JUNE TERM, 1847. 69
Rumph v. Abercrombie.
her support. Accordingly we find, that at the time of the
sale, the defendant contracted to furnish her with what she
wanted, and as the notes were extinguished by this process,
they were to be delivered up to him. Although she lived
but about three weeks after the sale, the account of the de-
fendant against her, during this short period, amounted to
three hundred dollars and it is not a little extraordinary,
that one item of the account, is a charge for negro hire.
The answer of the defendant, and the proof made by him,
of what took place at the sale, is quite sufficient to stamp upon
the transaction its true character. The whole scene, as de-
tailed by the witnesses, and by the defendant himself, forci-
bly conveys the idea of mental imbecility and blind confiding
credulity on the hand, and the exercise of a controlling influ-
ence on the other.
The unwillingness of the defendant to purchase the slaves,
clogged with the condition of taking care of the deceased,
and her family his offer of $800 in cash, rather than to pay
$1000 in ten annual payments without interest the urgent
solicitation of the sick woman, who pleaded her destitute
condition, and the neglect of her family, and when this failed
to move the defendant, his final consent to make the pur-
chase, on being reminded by the sick woman, of his promise
to do so, together with the array of witnesses who are pre-
sent to witness this scene, arid who afterwards depose to it,
so far from establishing the fairness of the transaction, do
most unequivocally prove the imbecility of the deceased, and
the influence which the defendant had over her. Two of
the witnesses afterwards attest a formal bill of sale, which is
drawn up, and the unusual precaution taken of proving, and
recording it in the county court.
We cannot doubt, that this contract was obtained by the
defendant, by taking advantage of the weakness, and neces-
sitous condition of the deceased, and of the confidence she
reposed in him. It is a settled rule of equity, that if confi-
dence is reposed, and that confidence is abused, equity will
grant relief. [Gartside v. Isherwood, 1 Bro. C. 150 ; Os-
mond v. Fitzroy, 3 Peere W. 329, and cases cited by Mr.
Belt in his note ; Watt v. Grove, 2 S. & L. 507; Wendell v.
70 ALABAMA.
Rumph v. Abercrombie.
Van Renselaer, 1 Johns. C. 350 ; Hugennin v. Basley, 14
Vesey, 290.]
When, by an abuse of the confidence of another, property
is obtained at an inadequate price, equity will pronounce it
fraudulent, and set it aside. Such appears to be the fact in
this case. The slaves are proved to have been very likely,
and consisted of a woman, from thirty-five to forty years old,
and her four children, a girl twelve or thirteen years old, a
boy nine or ten, a boy seven, and a child four years old.
These are estimated by several of the complainant's witnesses
at $1350 in cash, at the time of the sale to the defendant.
The defendant has introduced several witnesses, who swear
that the slaves were not worth more than the defendant
agreed to pay for them, upon the credit given ; and what is
not a little extraordinary, some of them state, that the ex-
pense and trouble of taking care of them is only a fair equi-
valent for the value of their labor. These estimates of value,
are made in gross, without setting a value on each of the
slaves, as was done by the witnesses on the other side, and
is for this, and other reasons, not deserving of the same con-
sideration. There is, however, a fact in proof, which estab-
lishes conclusively, the gross inadequacy of the price. Two
of the complainant's witnesses prove, that a short time before
the sale to the defendant, they had offered her $2000 for the
slaves, on the same terms they were sold to the defendant.
Surely, it would not require very stringent proof to establish,
that five slaves of the description of these, were worth more
than $1000, on ten years credit, and the fact last stated is
conclusive. It is equally clear, that the principal, if not the
sole inducement of the sale to the defendant, was the expec-
tation held out to the deceased, that she and her family
would be taken care of by him. How this promise was kept,
is shown by the account raised against her, during the short
time she lived after the sale was made. We think it impos-
sible to doubt, upon the whole case, not only that $1000
was a grossly inadequate price for the slaves, sold without in-
terest on ten years' credit, but that the purchase was ob-
tained by the defendant, from the confidence reposed by the
deceased in him, and the influence he had obtained over her,
in her weak and necessitous condition, by his promises of
JUNE TERM, 1847. 71
McMahan v. Green.
support and protection. The chancellor did not err in can-
celling the contract, and direpting the slaves to be delivered
up to the complainant.
Decree affirmed.
McMAHAN v. GREEN.
1. When a lien has attached on personal property, by the delivery of a Jieri
facias to the sheriff, which during the continuance of the lien, is removed
by the defendant in execution to another State, and sold, it may be levied
on and sold, by an alias execution, if brought back again to this State.
2. Qttere, would not the foreign purchaser acquire a good title by a purchase
at a judicial sale, or would not the remedy be lost, if the property had re-
mained long enough in the foreign country, for the statute of limitations
to bar an action for its recovery.
Writ of Error to the Circuit Court of Harbour.
THIS was a trial of the right of property under the statute,
in which the plaintiff in error was the plaintiff in execution,
and the defendant the claimant. The property in question
is a female slave, levied on to satisfy a fieri facias against the
goods and chattels, &c., of William F. Evans and others.
An issue was made up and submitted to a jury, who return-
ed a verdict in favor of the claimant, and judgment was ren-
dered accordingly. . From a bill of exceptions sealed at the
trial, it appears that the slave was removed by Evans, from
Pike county, in the fall of the year 1839, while a. fieri facias,
(of which the one levied was a regular, and immediate alias)
was in the hands of the sheriff of the county last named.
These facts were disclosed to the claimant at the time he
purchased the slave in Florida of Evans, whither the latter
had removed her. The claimant after his purchase, brought
the slave to Barbour county, where she was levied on by
72 ALABAMA.
McMahan v. Greene.
the plaintiff's execution. The court charged the jury, that
under these circumstances, the lien of fi. fa. did not re-at-
tach upon the slave being brought back into this State, and
that the title acquired by the claimant, was independent of
any execution liens in this State.
J. E. BELSER and J. BUFORD, for the plaintiff in error.-r
The delivery of the fieri facias to the sheriff of Pike, opera-
ted a lien upon the slave, and could not be affected by her
removal to another couuty, or even without the limits of this
State, where, as in this case, the lien has been followed up
with all legal diligence. The effect of the lien is to give to
the plaintiff a right which cannot be divested by the defend-
ant without his consent, and to take from the latter the pow-
er of disposing of the property so as to defeat a satisfaction of
the execution. [1 Ala. Rep. 678, 364 ; 7 Id. 632 ; Gilp. R.
101 ; 1 Mason's Rep. 321 ; 1 Pet. Rep. 443 ; 10 Id. 176 ;
1 Johns. Rep. 479 ; 2 Dana's Rep. 408 ; 3 Id. 213 ; 4 Bibb,
532.] It is shown by these citations that although a special
property in the goods of the defendant in execution, do not
vest in the sheriff, unless a levy has been made, yet the de-
livery of the execution to the officer imposes a lien which
the debtor cannot, by any act of his, defeat. The jury might
have inferred from the evidence, that the claimants purchase
was made to defeat or delay creditors, and void, under the
statute of frauds. If this be so, the charge of the court was
erroneous, in assuming the reverse as a legal conclusion.
J. COCHRAN, for the defendant in error. The lien of an ex-
ecution is not dependent upon a contract, but is given by
law ; and it is the fact of the personalty being in the county
to which the fieri facias issues that causes the lien to attach.
[8 Port. Rep. 147 ; 1 Ala. Rep. 678.] If property is merely
removed to another county after the lien commences, it is
suspended, and may be made operative by suing an execution
to that county. [7 Ala. Rep. 632.] But when the thing is
removed beyond the jurisdiction of the State, all process is in-
operative againstit, and if the defendant there sells it for a
JUNE TERM, 1847. 73
McMahan v. Green.
valuable consideration, the lien is forever gone, though it be
brought within this State. The claimants knowledge that
the property had been removed from Pike county to Florida,
and that the slave, previous to her removal, was subject to
the lien of an execution, can have no effect upon the claim-
ant's title such knowledge does not warrant the implica-
tion of a fraud. A legal title vested in the claimant by his
purchase there having been no actual levy of the plaintiff 's
execution previous to the removal, which was necessary to
divest the defendant's property. [1 Ala. Rep. 359.]
COLLIER, C. J. By the act of 1807, " concerning exe-
cutions, and for the relief of insolvent debtors," it is enacted,
that " No writ of fieri facias, or other writ of execution
shall bind the property of the goods against which such writ
is sued forth, but from the time that such writ shall be deli-
vered to the sheriff, under-sheriff, coroner, or other officer to
be executed ; and for the better manifestation" of the time, of
delivery, such sheriff, &c. shall indorse on such writ " the
day of the month and year when he received the same."
[Clay's Dig. 208, <> 41.] This statute, it has been often said,
gives to a. fieri facias, a lien upon the goods and chattels of
the defendant, that may be within the county, while it is op-
erative and in the hands of the officer. And in Hester, et al.
v. Keith & Kelly, 1 Ala. Rep. 316, it was held, that the act
in requiring the indorsement of the reception of an execu-
tion, must be regarded as directory, and its non-observance
by an officer in whose hands an execution is placed, cannot
prejudice a plaintiff. The lien attaches as soon as the execu-
tion is received, and the noting upon it the day of the receipt,
is only intended to evidence the fact ; and it is competent to
show the time of the delivery by extrinsic proof.
Where the lien of a fieri facias attaches upon goods and
chattels, it will not be lost by their removal to another coun-
ty not even in favor of a junior^, fa. issued to the latter
county, if an alias execution has regularly issued as directed
by the act of 1828. [Hill v. Slaughter, 7 Ala. Rep, 632 ;
See also, 2 Murph. Rep. 353 ; 2 Hawks' Rep. 341.]
A Hen, it is said, is neither a jus ad rem, nor a jus in re,
it only confers a right to levy the fi. fa. on the particular
10
74 ALABAMA.
McMahan v. Green.
chattel to the exclusion of other adverse interests arising sub-
sequent to the lien's attaching ; and when the levy is actual-
ly made, it operates retrospectively, so as to cut off interme-
diate incumbrances. [Meany v. Head, 1 Mason's Rep. 319;
Conard v. Atlantic Ins. Co. 1 Pet. Rep. 386 ; Jones v. Jones,
1 Eland's Rep. 448 ; Arnold v. Bell, 1 Hayw. Rep. 396 ;
Ingles v. Donaldson, 2 Id. 57 ; Williams' adm'r v. Bradley,
Id. 363 ; Payne v. Drew, 4 East's Rep. 523 ; 1 Smith's R.
170.] A lien is a tie, hold, or security, upon goods which a
man has for some particular purpose he may hold it until
the purpose is satisfied, or the lien is lost, or in some manner
waived. [United States v. Barney, 2 Hall's Law Jour. 128.]
The prior lien is entitled to prior satisfaction, unless it be in-
trinsically defective, or displaced by some act of the party
holding it, which shall postpone him at law or in equity ;
and mere delay, it is said, is not sufficient for that purpose.
[Rankiti v. Scott, 12 Wheat. Rep. 507 ; see also, 3 Harring-
ton's Rep. 37; 4 Harrison's Rep. 166.]
In South-Carolina it has been held, that executions bind
the property throughout the State, from the time they are
entered in the sheriff's office. Yet the plaintiff may lose his
priority by delay. [Woodward v. Hill, 3 McC. Rep. 241,}
So, in Porter v. Cocke, Peck's Rep. 30, it was decided that
although a judgment was a lien upon the lands of the defend-
ant, this lien may be lost ; and a contract to stay execution
until the next term will suspend it with regard to other judg-
ment creditors. [See also, 4 Dall. Rep. 450 ; 1 Watt's R. 9.]
Whether the stern principles of law or international comi-
ty require one country to recognize the preferences or priori-
ties of creditors in another, as established by the legislation
of the latter, is perhaps a question about which foreign ju-
rists are not fully agreed. But it may be stated as the result
of the doctrine taught by most of them, that the proper fo-
rum to decide upon all questions of the preferences and pri-
orities of creditors, is the place of the domicil of the debtor ;
and that the law of that place, and not the law of the place
of the contract, is to govern in all cases of such priorities and
preferences, in respect to moveables situated in his place of
domicil. But as to moveables situate elsewhere, as well as
to immoveables, the lex rei sitae is to govern. A preference
JUNE TERM, 1847. 75
McMahan v. Green.
arising solely from the authority of the law, has no effect up-
on property not subjected to the law maker, when the con-
troversy respects the interest of third persons, or of other cre-
ditors, who have not contracted in the place, the laws of
which give the preference. [Story's Confl. of Laws. 270.]
Again, whenever the lea: loci contractus and the lex fori as
to conflicting rights acquired in each, come in direct collis-
ion, the comity of nations must yield to the positive law of
the land. In tali conflictu magis est, ut jus nostrum, quant
jus aliorum servemus. [2 Kent's Com. Lect. 39.]
Upon the general principles as to the operation of contracts,
and the rule that moveables have no locality, it is said that
the privilege, hypothecations and liens of creditors ought to
prevail over the rights of subsequent purchasers and credi-
tors in every other country. That having once attached
rightfully in rem, they ought not to be displaced by the mere
change of local situation of the property. [Story's Confl. of
Laws, 335, 402,]
The principles we have stated as sustained by judicial de-
cisions, or the opinions of elementary writers, furnish the
most apt analogies for the decision of the case at bar of any
we have been able to find. From these it follows, that the
delivery of a fieri facias to the sheriff, does not invest the
plaintiff in execution with a right to the personal property of
the defendant, against which it is sued forth. It merely gives
to the plaintiff a lien paramount to all junior execution cred-
itors, if it is promptly enforced, and if the debtor incumbers
or sells it, the incumbrancer or purchaser will take it subject
to the lien.
We have seen that the removal of chattels from one coun-
ty to another, will not deprive a party of the lien of an exe-
cution which attached in the former, if an alias fi. fa. has
regularly issued as directed by the statute of 1828. This
statute adjusts the priorities of execution creditors, and der
clares, that " if a term shall not have elapsed, and an alias
shall be delivered to the sheriff before the sale of property
under a junior execution in 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
76 ALABAMA.
McMahan v. Green.
execution, the lien of the latter shall prevail." This dili-
gence, it will be observed, is necessary to keep alive the lien,
where there are other creditors who are seeking to subject the
debtor's estate to the satisfaction of their executions. But
after the lien has once attached, the plaintiff cannot be re-
quired to employ the same diligence in order to continue it
against the defendant, or a purchaser from him. In Claggett
v. Force, 1 Dana's Rep. 428, it was held that the temporary
removal of property would not free it from a lien which had
been acquired by the delivery of a.Ji. fa. to the sheriff. If
without connivance or fault on the part of the plaintiff in ex-
ecution, the defendant removes his goods from the State, the
lien would be suspended during the time they were abroad,
but upon their being brought within it again, either by the
defendant or a purchaser from him, the lien would revive and
relate back to the time when it first attached. This conclu-
sion seems to result from the proposition that it cannot be lost
without fault on the part of the plaintiff, or unless there be
such a want of diligence as gives a prefernce to a junior ex-
ecution. The fact that the property had been sold while it
was abroad, by the defendant, cannot destroy the lien ; for
he has no right to make an unincumbered title to it while
the execution remains unsatisfied, and its lien unimpaired.
As there is not even jus ad rem } perhaps the property
could not be pursued into a foreign jurisdiction; to authorize
proceedings there, it is possible that there should be a levy,
which gives jus in re. But however this may be, the con-
clusion we have expressed will not be affected. If a sale was
made abroad, under judicial process against the defendant in
execution, we incline to think that the title of the purchaser
under that process would prevail against the lien of the fi. fa.,
if the property was removed into this State. But this would
depend upon the effect of the foreign law, and would be al-
together different in principle from the case of a voluntary
sale. So if the property should remain abroad a sufficient
length of time for the statute of limitations to bar an action
of detinue, it is quite probable, that the purchaser from the
defendant might invoke the statute, and thus defend his ti-
JUNE TERM, 1847. 77
~ Goodgame v. Cole & Co.
tie. But the case of the claimant, as presented by the record,
is unassisted by any of these circumstances, which it is inti-
mated might possibly defeat the plaintiff's lien. It presents
the naked question, whether, if a lien attaches upon chattels,
in virtue of aji.fa., and they are removed from the State and
sold by the debtor, and afterwards brought into the State, can
they be seized and sold under an alias Ji. fa. issued under
the same judgment, so as to defeat the title of the foreign
purchaser. Upon this point our opinion has been expressed.
The judgment is consequently reversed, and the cause re-
manded.
GOODGAME v. COLE & CO.
1. When the question involved is fraud, the vendee may show that he waa
advised by a third person to come to this State for the purpose of securing
a debt from the vendor, and that he came for that purpose. Hia purpose
in coming is a part of the resgestae.
2. Admissions by the vendor that he was indebted to the vendee, if made at
a tune previous to contracting the debt with the attaching creditor, are
admissible, it being shown the consideration of the sale was notes due
from the vendor to the vendee.
3. Admissions made by the vendor at the time of the sale, that he was in-
debted to the vendee, are admissible as part of the transaction ; but as
proof of consideration, such admissions are entitled to no weight, if the
creditor's debt was existing at the time of the sale. If the evidence cre-
ates a suspicion of the fairness of the transaction, it is incumbent on the
vendee to prove the payment of an adequate consideration.
4. Declarations made by a vendor remaining in possession of slaves, after
the period when, by the ordinary course of trade, they should have passed
to the possession of the vendee, are admissible as evidence on the ground
that, from this circumstance, a fraudulent combination between them
might be inferred.
Writ of Error to the Circuit Court of Dallas.
78 ALABAMA.
Goodgame v. Cole & Co.
, CLAIM to certain horses, slaves and cotton levied on by fi.
fa. at the suit of Cole & Co. against Wm. B. Goodgame.
1. At the trial, it was in evidence that Wm. B. Goodgame,
the defendant in execution, in the year 1835, was appointed
guardian for George H. Goodgame, the claimant, he being
then a minor. In April, 1844, some two or three years after
George H. had attained his majority, there was a sale of the
slaves, levied on by this execution to the claimant the con-
sideration expressed in the bill of sale was $1200, and the
subscribing witness stated that notes for that sum, bearing
date 27th March, 1842, 1st May, 1842, and 1st March, 1843,
were given up by George H. to W. B. Goodgame. There
was also evidence tending to show, that at the death of the
father of George H., some* property was left, to which his son
was entitled to a distributive share, but it was not made to
appear whether it came to the possession of his said guardian,
or whether there was any indebtedness from the said guardi-
an to his ward at the time of the sale. There was also evi-
dence from the plaintiff, tending to show that this sale was
fraudulent. The subscribing witness to the bill of sale hav-
ing proved its execution, and identified the notes given by
the claimant for the price, the claimant then proved by this
witness, that early in 1844, he went to the State of Georgia,
where he saw Goodgame, the claimant, and in consequence
of what the witness had heard in Alabama, advised him to
return with the witness, and endeavor to secure his indebt-
edness against the defendant in execution. That George H.
did return with the witness for that purpose, and in a few
days after reaching here, the purchase was made as before
stated. The plaintiff objected to this evidence, and the
court excluded it, except that the claimant did come from
Georgia about that time, and that he did make the purchase,
as stated.
2. The claimant also offered to show by the same witness,
that two years previous to the sale, Wm. B. Goodgame ad-
mitted to him he was indebted to the claimant. This was
also excluded.
3. The claimant also offered to prove by this witness, the
declarations of the defendant prior to the sale, and whilst he
JUNE TERM, 1847. 79
Goodgame v. Cole &. Co.
was in possession of the property, in regard to his indebted-
ness to claimant. This was also excluded.
4. The claimant also offered to prove by this witness, that
at the time of making the sale, the defendant in execution
stated the notes had been given on account of his indebted-
ness to the claimant as his guardian. This was also ex-
cluded.
5. It also appeared in evidence, that at the time of the sale,
Wm. B. Goodgame was a tavern keeper in Cahawba, and
that George H. boarded with him, and continued to board
there to the end of the year 1844. That early in 1845, both
the Goodgames went together to a farm in the country, and
both worked and carried on said farm. That the slaves in
controversy also worked there. During 1844, said slaves
were kept as servants about the tavern, and Wm. B. Good-
game appeared to control them. The plaintiff in execution
produced a witness, who testified that in 1844, after the said
sale, and while the slaves were employed in the tavern, said
Wm. B. claimed and spoke of the slaves as his own property,
and said as to one of them, if he were to sell him he should
ask a very high price. It did not appear the claimant was
then present, or knew of this claim by Wm. B. This was
admitted against the objection of the claimant.
The claimant excepted to these several rulings of the
court, and they are now assigned as error.
EVANS, for the plaintiff in error, insisted
1. That all the evidence offered by the claimant was ad-
missible as part of the transaction of sale, and as tending to
explain its circumstances. [Greenl. Ev. 108, 109 ; Powell
v. Olds, 7 Ala. Rep. 652; 9 Ib. 861; McBride v. Thompson,
8 Ib. 650; Yarborough v. Moss, 9 Ib. 382; Downman v.
Frow, 6 Ib. 879.J
2. Declarations of a party, ante litemotcm, and against his
interest at the time, are admissible. [Green). Ev. $ 147,
148, 149, 181,153.]
3. The general rule is, that declarations of the vendor are
not admissible against his vendee, and there seems nothing
in the circumstances of the case to withdraw it from the rule.
[Hard v. West, 7 Cowen, 752 ; Whitaker v. Brown, 8 Wend.
80 ALABAMA.
Goodgame v. Cole fc Co.
490; Talcot v. Wilcox, 9 Conn. 134; Cowan 8f Hill's
Notes, 602.]
PECK, contra, cited McBride v. Thompson, 8 Ala. R. 653 ,-
Gary v. Terrell, 9 Ib. 206.
GOLDTH WAITE, J. 1. It is possible most of the ques-
tions presented on this record might have been otherwise
ruled, without affecting the result ; but this is no- reason
against their revision here, as it is impossible to say what
influence the rejected testimony might have had with the
jury. It has been well said, the affairs of men consist of a
complication of circumstances so intimately interwoven, as
to be hardly separable from each other. Each owes its birth
to some preceding circumstances, and in its turn becomes
the prolific parent of others; and each, during its existence, has
its inseparable attributes and its kindred facts materially af-
fecting its character, and essential to be known in order to a
right understanding of its nature. These surrounding cir-
cumstances may always be shown to the jury along with the
principal fact. [Greenl. Ev. 108.] In every transaction
where fraud is imputed, it must be conceded to be of essen-
tial importance the jury should be put in possession of every
fact and circumstance tending to elucidate the question. It
is impossible to say the same conclusion would arise in the
mind of any one, of the validity of a transaction carried on
by parties secretly and without any known motive, and one
which was transacted at the instance, or on the advice of an-
other. In this view, the fact that the claimant was advised
by the witness to come to this State for the purpose of se-
curing a debt, is a circumstance bearing upon a sale recently
made, in connexion with that avowed object. It is entirely
distinct from proof that the one party was .indebted to the
other, and did not tend to establish that fact : but when a
consideration was otherwise made to appear, would certainly
be admissible to show, in some degree at least, that the ob-
ject of the journey to this State was not to take a pretended
conveyance.
2. The question next in order, has become one of conside-
rable importance, as affecting the general practice, since the
JUNE TERM, 1347. 81
Goodgame v. Cole & Co.
enactment of the statute by which defendants in execution
are excluded as witnesses in claim suits. As this source of
evidence is cut off, it is evident that cases may arise in which
there may be great difficulty in showing the consideration for
sales of property made by a debtor to a stranger, yet this dif-
ficulty cannot effect a change of established rules. It has
several times been held in. this court, that the recitals in the
deed made by the debtor, or admissions by him at the time
of its execution, were not evidence. [McCain v. Wood, 4
Ala. Rep; 258 ; Branch Bank v. Kinney, 5 Ib. 9.] In the
first of these cases, the rule is stated with reference to a deed,
and admissions made after the accruing of the debt to the
creditor contesting the deed, and in the last we presume the
same condition of facts existed, although not stated in the
report of the case. The objection to such evidence is said
to be, that it can at any time be manufactured by one in-
debted, and by means, of it a creditor might be defeated, as
it would in most cases be impracticable to prove a negative,
or disprove what the debtor asserted as the consideration. It
is very possible the rule is confined to declarations and ad-
missions made after the creation of the contesting creditor's
debt, as until then, there is no reason why even a voluntary
conveyance may not be good. Indeed, such seems to be the
settled practice of the English courts, when it becomes neces-
sary to prove the debt due to the petitioning creditor, in a
suit by the assignees of a bankrupt. In such a suit, the
bankrupt is not a competent witness, (Chapman v. Gardner,
2 H. B. 279) ; yet his admissions of indebtedness, made 6e-
fore the act of bankruptcy, may be given in evidence, though
they cannot be if made after the act. [Smallcombe v. Watts,
13 Price, 131; see also Greenl. Ev. <> 18L] This seems. to
be the precise principle which is adverted td in McCain y.
Wood, before cited, and will let in as evidence admissions
made by the debtor prior to the creation of the debt, which
the attaching creditor is seeking to enforce against his as-
signee or grantee. What weight such admissions would be
entitled to in the minds of the jury, it is evident would de-
pend on the circumstances of the case, but in principle they
seem to be admissible, if made by the debtor at a period of
11
82 ALABAMA.
Gookgame v. Cole & Co.
time when it is not his interest to make them, and when they
cannot affect the creditor, against whom they are afterwards
used. It will thus be seen, the test of the admissibility of
such admissions, is not the length of time previous to the
trial, but that it is the fact whether at the time the debtor
had an interest in creating a title in another to defeat the
particular creditor. Whether the fact of a similar interest to
defeat some other creditor would not produce the same ef-
fect, is a matter we need not consider at this time. The
same remarks apply to the other admissions offered in evi-
dence, as having been made anterior to the supposed sale of
the slaves.
3. What transpired at the sale was proper evidence on the
principle first stated. It was a part of the transaction of
sale, and independent of the effect it would have as proof
of the consideration passing, the admission should have gone
to the jury. As proving consideration, it was entitled to no
weight, if the creditor's debt was existing at that time, (Mc-
Cain v. Wood, 4 Ala. Rep. 258) ; and if the evidence on the
part of the creditor induced a suspicion of the fairness of the
transaction, it was incumbent on the claimant to prove the
payment of an adequate consideration. [Seamans v. White,
8 Ala. Rep. 656.]
4. With reference to the proof of declarations by the ven-
dor, when remaining in possession of the slaves after the pe-
riod when, by the ordinary course of trade, they should have
passed to the possession of the vendee, we think it well es-
tablished they were admissible, on the ground that there was
evidence from which a fraudulent transaction between the
vendor and vendee might be inferred from there being no
change in the possession. [Borland v. Mayo, 8 Ala. Rep.
105 ; Cowen & Hill's Notes, 177, and cases there cited.]
The court having erred, however, in the other particulars,
the judgment is reversed, and the cause remanded.
JUNE TERM, 1847. 83
McGehee v. McGehee.
McGEHEE v. McGEHEE.
1* When an award is about being made, between a principal and one of two
sureties, touching certain moneys, alledged to have been placed in his
hands for the payment of the debt, the other surety will be bound by it
when made, either by assenting to it when made, or by being present with
full knowledge that it is about being made, and not dissenting.
Error to the Chancery Court of Montgomery.
THE bill was filed by Albert McGehee, and Joel A. Stokes,
against Abner McGehee, William McGehee, and James A.
Smith. The material allegations of the bill are, that the
complainant, Albert, and the defendant Abner McGehee, be-
came the sureties of Wm. McGehee, in a promissory note to
one Chancy, for $790, and executed their note therefor, due
1st January, 1839. That on the 28th May, the plaintiff, Al-
bert, became the surety of William, to one Daniel Mosely
for $312, due 1st February, 1839. That on the 19th May,
1840, the complainants, together with defendants, Abner and
Smith, became the sureties of William, on a note to the
Branch Bank at Montgomery, for $1860 04, due ninety days
after date, and that Smith became a co-surety with the oth-
ers, upon the promise of complainant, Albert, to indemnify
him against loss. That on the 18th March, 1840, complain-
ants became the sureties of William, in a note to the Branch
Bank at Montgomery, for $500, due ninety days after date,
and that complainant, Albert, indemnified Stokes against loss
from his suretyship.
That complainant, Albert, has been compelled to pay the
debts due to Chaney and Mosely. That the latter debt had
been paid to Mosely previously, by William the principal
debtor, [and the receipt deposited with Abner, but of which
complainant was ignorant ; and that Abner received a credit
for the amount so paid on a settlement of a debt of $3,000
hereafter mentioned. That he has also paid $151 and costs
84 ALABAMA.
McGehee v. McGehee.
on the note for $500, and costs and commissions amounting
to about $100 on the note of $1860 04.
That about the 5th November, 1840, the Montgomery Rail
Road Company, was indebted to the said William McGehee
in the sum of $6,700, for work done by him -for the Rail
Road Company, and he being desirous to secure the com-
plainant, Albert, and the defendant, Abner, against loss from
their suretyship 3 deposited the claim against the rail road
with said Abner, to collect, and apply the proceeds to the
payment of certain debts, viz : a debt by William of about
about $3,000, to one Daniel Mosely, to which Albert, and
Abner, were sureties the debt due to Chaney the note
made by Albert and Smith for $1860 the note for $500
payable to the Bank at Montgomery, and a note due one
Thomas Baldrick, of about $500.
That William deposited the receipt of Abner for the said
claim with complainant Albert that he cannot produce the
original, as it was handed to Abner, and not returned by him,
but was destroyed, and he therefore appends to the bill a
substantial copy, which, after reciting the claim against the
rail road proceeds Rec'd, 5 Nov'r, 1840, of William McGe-
hee, the above demands, which I promise to collect, and pay
the following notes, and executions, viz :
Daniel Mosely, $3,000
John Chaney, 900
T. Baldrick, 500
Bank, '. 2,300
$6,700
That when Abner received the said claim, he knew com-
plainant was the surety of William, and received it for the
purpose of indemnifying him against loss, on account of his
suretyship, and of discharging the debts specified.
That Abner McGehee being indebted to the rail road,
applied the claim placed in his hands in discharge of his own
debt, and received a credit for the amount, and has only paid
on account of the debts due by William, about $2,600, with
interest on the note of $3,600 due Mosely, the balance of
the debt being paid by William to Mosely the debt due
Baldrick, and that to the bank, leaving in the hands of Ab-
JUNE TERM, 1847. 85
McGehee v. McGehee.
ner a sum sufficient to pay complainant, Albert, the amount
\vhich he has paid as the surety of William. That William
is insolvent, and a non-resident, &c.
Abner McGehee answers, and admits that he and Albert
were sureties for William, to Chaney, as stated in the bill,
and that it was paid by Albert. Denies all knowledge of
the suretyship of Albert for the debt to Mosely of $312, or of
the debt of $500 to the Bank of Montgomery, but as to the
latter says, he understood, both from Albert and William,
that they were jointly interested in it; and as to the former?
denies that any receipt for the money, as charged in the bill,
was ever deposited with him, and knows nothing of its pay-
ment, either by Albert or William. Has no knowledge of
the payment of $151, or of the cost alledged to be paid on
the note of $1860 ; that he himself has paid the debt, inter-
est and costs, and holds a receipt for the same.
Admits that he received a credit with the rail road, for the
full amount of the claim of William McGehee, which he ad-
mits was deposited with him for the purpose described in the
receipt exhibited to the bill, and which he admits to be a
correct copy but denies, that the debt of $500 due the
bank was to be paid out of this fund, or that any debt was
to be paid out of this fund, except those on which himself
and Albert were co-sureties, as 1 appears by the receipt itself.
He further states, that the company were embarrassed and
unable to pay their debts, and proposed to their creditors to
issue stock to them in payment, which he, as the agent of
William, received for him in good faith, holding himself
responsible, if he was dissatisfied with it, to furnish him
claims against the company to the amount of his claims, or to
pay him the par value of the stock in money. He made
these offers to William, who not being satisfied therewith, it
was agreed between him and William, to submit the matter
to arbitration, and bonds were executed accordingly, to abide
by the award, by William and himself. That the arbitra-
tors appointed d day for the settlement, and respondent, Wm.
and Albert McGehee, attended, and after a full hearing, they
made their award in writing, in the presence, arid with the full
knowledge, of complainant, and that W. McGehee acquiesced
in said award, and actually received the balance found to be
due. The award and receipt are made exhibits to the bill,
86 ALABAMA.
McGehee v. McGehea.
and he insists this was a fair, just and impartial settlement of
these matters, and that they are no longer open to contro-
versy.
He further states, that at the time of the award, the debt
due Thomas Baldrick was not considered by the referees, for
want of the necessary testimony, and that after the award,
William and himself met and settled this matter, and Wm.
then executed his note to him for the amount he had paid
Baldrick, $890, due the first January, 1845, and that since
the award, and since he received the note from William, he
had paid the debt due the bank, being the same for which
complainant is liable as co-security, and insists that he is en-
titled to a decree for contribution against him.
Such of the proof as is important, will be found in the
opinion of the court.
The chancellor considered the award as equally binding
on the complainant, as on William McGehee, and dismissed
the bill. This is now assigned as error.
ELMORE, for plaintiff in error.
1. The complainant is not bound by the award between
defendant and William McGehee 1. Because he was no par-
ty to it. 2. Because he did not consent to it. 3. Because
his acts and declarations before the arbitrators show that his
rights were not intended to be submitted, and were not sub-
mitted. 4. Because the submission was upon a false repre-
sentation by Abner McGehee, of the disposition made by him
of the fund placed in his hands by Wm. McGehee. [Lamb
v. Clark, 5 Pick. 193 ; Nichols v. Arnold. 8 Pick. 172.]
2. The proof showed the payment by complainant of va-
rious debts in which he and defendant were jointly liable as
sureties for William McGehee, and that the principal was in-
solvent.
J. D. F. WILLIAMS, contra.
1 . An award extinguishes the original demand, and is a
bar to every action on such demand. [3 Phil, on Ev. 1026,
and cases there cited.]
2. The assignee of a bond has a right to submit any ques-
tion of defence arising thereon, on the part of the maker, to
JUNE TERM, 1847. 87
McGehee v. McGehee.
arbitation ; and their award will be conclusive against the
assignor. [Scales v. Wilson, 9 Leigh, 473.]
3. Abner McGehee, as appears by his answer has fully ac-
counted for the collaterals, placed in his hands by Wm. M.
McGehee.
ORMOND, J. The award made on the submission, en-
tered into between Abner and William McGehee, is not im-
peached, and appears to be unimpeachable, and is, as be-
tween them, conclusive upon the matters submitted, and de-
termined by the arbitrators. Is it also binding on Albert
McGehee ? It appears that Abner, and Albert McGehee,
were co-sureties of William McGehee, and that the latter for
their indemnity, placed in the hands of Abner, certain claims
which he held upon the Montgomery Rail Road Company,
who executed a receipt for them to William, and promised
to collect the demands, and pay certain specific liabilities,
being those for which Albert, and Abner, were his co-sure-
ties. This receipt was deposited with Albert McGehee. It
appears to us, that whether William, and Abner, could have
submitted this matter to arbitration, without the assent of Al-
bert, (a point not necessary to be decided,) it is very clear,
that he is bound by an award, made with his knowledge, at
the making of which he was present, and to the making of
which he did not dissent. This results necessarily from the
fact, that if the arbitrators had awarded that Abner McGe-
hee was responsible for the nominal amount of the claims put
in his hands, it would have been a fund for the discharge of
the debts of William McGehee, for which he, as co-surety
with Abner McGehee, was responsible. If therefore he did
not intend, that the award should conclude his rights, as to
the value of the fund placed in the hands of Abner McGehee,
it was his duty to make known his dissent. It would be
most inequitable, that he should be permitted to await the re-
sult, and take the benefit of it, or repudiate it as might best
comport with his interest. The testimony is full to the point,
that he was present aiding, and assisting, William McGehee
in collecting testimony to lay before the arbitrators ; was
present at all the submissions, and when the award was
made.
88 ALABAMA.
McGehee v. McGehee.
That he could have insisted on the award if it had been
beneficial, we consider perfectly clear, as an award in favor
of the principal debtor, and requiring one of the sureties to
pay the debt from funds derived from the principal debtor,
must by extinguishing the debt, enure to the benefit of the
other surety. It is well settled, that although strangers to
an award are not concluded by it, and therefore can derive
no benefit from it, privies in estate may. It has been held,
that an award between a vendor, and a claimant of the pro-
perty, was available to the vendee, in a suit by the same
claimant against him, for the same property. [Evans v. Mc-
Kinny, Litt. Sel. Cases, 262. See the general doctrine and
the authorities in Watson on Awards, 175.]
But it is not necessary to rest this case, on the mere omis-
sion of the complainant to dissent from the award, which he
knew was about to be made, because we think the evidence
shows very satisfactorily, that he consented it should be
made. Mr. Bugbee, one of the arbitrators, who was examin-
ed as a witness, says, " Albert McGehee was present at the
several submissions, as the friend of William McGehee as I
understood, and did consent to the said submissions." In
answer to the next question, he says, "Albert G. McGehee
submitted no matter of his own to us, but during the investi-
gation, he wished us to consider his interest, which was de-
clined. I stated to him, as arbitrator, that we as arbitrators,
had nothing to do with the matter between him, and Abner
McGehee. That our award could not in any wise affect him ,
that his case was not before us, and we could not take it in-
to consideration."
In answer to the second cross interrogatory, he says, " Du-
ring the investigation, and acting upon the matter submitted,
Albert McGehee was frequently present. He did not object to
the submission, or to the arbitrators acting upon the matters
submitted. He wished his rights to be considered, but hav-
ing been told that could not be done, he did not persist."
It is quite clear from this, that the complainant was willing
the matter submitted should be arbitrated, as it appears he
consented to the submission. He wished the arbitrators also
to consider the matters in difference between him, and Abner
McGehee ; this they refused, and upon being told that the
JUNE TERM, 1847.
McGehee v. McGehee.
award would not bind him in, that particular, submitted. It
is impossible, that this proposition of the complainant, to con-
sider of matters between him, and Abner McGehee, could re-
late to the matter submitted, which was whether Abner was
to account for the claims put in his hands, at their nominal,
or actual value, because in this matter his interest was pre-
cisely the same as that of William McGehee. The other
matters he wished them to consider of, were doubtless those
set forth in this bill ; whether the funds in the hands of Ab-
ner, was to be appropriated in payment of the debts of Wil-
liam McGehee, for which Albert alone was bound as surety,
as well as those, for which he and Abner were joint sure-
ties. This the arbitrators very properly refused, as not with-
in the submission. Be these matters, which he wished them
to consider, what they may, it is certain they did not con-
nect themselves with the matter submitted, as the witness
explicitly states, that he did not object to the arbitrators act-
ing upon the matter submitted, but consented to the submis-
sion. That his consent to the settlement of this question,
by the arbitrators, would bind him, there can be no doubt.
It would in effect be a parol submission of the matters in con-
troversy. Such a consent would bind even a stranger to the
award. [Kingston v. Phelps, Peake, 227.]
The award ascertained, that Abner McGehee was liable
only for the actual value of the Rail Road demands, which
was settled at fifty cents in the dollar. It also determined,
that Abner McGehee had paid out the entire amount, except
a small sum, in discharge of the debts, for the payment of
which it was placed in his hands. It also appears from the
record, that Abner McGehee has paid with his own funds, a
much larger amount of the debts of William McGehee, for
which he and the complainant were jointly bound as co-su-
reties, than the complainant, and the result is, that the de-
cree of the chancellor dismissing the bill, must be affirmed.
12
90 ALABAMA.
Mills & Co. v. Stewart
MILLS & CO. v. STEWART.
1. A plea is bad on demurrer, which assumes to answer the entire declara-
tion, and to furnish a bar to the action, and alledges matter which is an
answer to only a part of the demand.
2. A plea, alledging that the defendant had been garuisheed in a court of
the state of Louisiana, and a judgment rendered against him on his an-
swer, condemning the debt in favor of a creditor of the plaintiff, setting,
out the proceedings fully, and alledging that they were conducted ac-
cording to the law of Louisiana, and that he had paid, and satisfied the
judgment so rendered, is good. It is not necessary in such a plea to al-
ledge, in totidem verbis, that the defendant had no notice of the transfer
of the note, when he answered the garnishment
3. When the record of the proceedings of one state, are offered in evidence
in another, authenticated pursuant to the act of congress, presumptions
must be indulged favorable to its jurisdiction, where the form of the pro-
ceedings do not indicate, that it is a court of limited jurisdiction.
4. A negotiable note, not endorsed before its maturity, may be the subject of
an attachment, or garnishment, at the suit of the creditors of the payee,
BO long as he remains its proprietor, or until the maker has notice of the
transfer, if indorsed when past due.
5. A statement made by the clerk of the court rendering the judgment, of
its amount, and payment by the garnishee, though certified as part of the
record, is not evidence of the fact of payment
6. A garnishee against whom a regular judgment has been rendered, may
discharge it by payment, without waiting until he is coerced by execu-
tion.
Writ of Error to the County Court of Mobile.
" ,jn .Of'l ""' ;"' '"',> ''!!' "l") 0-t'
THIS was an action of assumpsit, at the suit of the
plaintiffs in error, on a promissory note, by which the de-
fendant, on the 28th December, 1843, promised to pay to
George G. Henry, or bearer, at the Bank of Mobile, on the
1st March, 1845, the sum of seventeen hundred and ninety-
three 22-100 dollars. The note was indorsed and delivered
by the payee to the plaintiffs.
Among other pleas, the defendant pleaded, that on the 31st
March, 1845, Messrs. Perkins, Hopkins & White, of New-
JUNE TERM, 1847. 91
" Mills & Co. v. Stewart
York, instituted proceedings in the commercial court of New-
Orleans, against Geo. G. Henry as their debtor, alledging that
the defendant was indebted to him, &c., and praying that he
might be made a party to the suit ; thereupon, such proceed-
ings were had that the debt was attached, and the defendant
summoned to answer upon oath, as to his indebtedness, &c. :
whereupon, he answered, that he was indebted to Henry the
balance due on a promissory note, &c., the sum of one thou-
sand dollars, deducting therefrom twenty-five dollars, which
by the laws of Alabama, bore interest from the 1st March,
1845, when it became due, at the rate of eight per cent, per
annum. On this answer the court rendered judgment in fa-
vor of Messrs. Perkins, Hopkins & White, for the sum of
sixteen hundred and fifty-nine 72-100 dollars, with interest
till paid, and costs of suit ; and it was further considered,
that the plaintiffs in that suit recover of this defendant the
sum of nine hundred and seventy-five dollars, with interest
thereon, making the aggregate sum of $1,054 12. This a-
mount was paid by defendant on the 10th day of March,
1846, in full satisfaction of the judgment against him. De-
fendant avers that the judgment so rendered against him was
for the same identical cause of action in the plaintiff's decla-
ration mentioned which will more fully and at large appear
by the records and proceedings remaining in the commercial
court of New-Orleans, in full force and effect, not in the least
reversed or annulled, &c. And this the defendant is ready
to verify, &c. The plea is drawn out at great length al-
ledging all the proceedings to have been conducted accord-
ing to the laws of Louisiana. The plaintiff demurred, and
his demurrer being overruled, issue was joined unon all the
pleas ; whereupon the cause was submitted to a jury, who
returned a verdict for the defendant, and judgment was ren-
dered accordingly.
Upon the trial the plaintiff excepted to the ruling of the
court. It was shown by the bill of exceptions that the plain-
tiffs produced the note with the indorsement of the payee ;
and on which were also indorsed credits, amounting in the
aggregate, to the sum of seven hundred ninety 22-100 dol-
lars. The defendant offered the record of the commercial
court of New-Orleans, described in his plea, which was ad-
92 ALABAMA.
Mills & Co. v. Stewart.
milted in despite of the plaintiff's objection, as evidence of
the existence of the judgment, but not of the facts on which
it was rendered. The identity of the note declared on, and
that referred to in the record, was admitted.
It was proved that the plaintiffs reside in Massachusetts,
and remitted the note to their attorney for collection about
the 1st May, 1845. The time of the indorsement of the note
to the plaintiffs was not proved. The defendant and Henry
have resided in Mobile ever since the note bears date. The
payments indorsed on the note were in the hand-writing of
the latter. There was no otfier proof of the satisfaction of
the judgment against the defendant than what accompanies
the record.
The plaintiffs excepted to the admission of the evidence,
and the second charge to the jury. The bill of exceptions is
so framed that it is not entirely easy to determine which is
the second charge, but it is embraced in the following : If
defendant answered the garnishment truly, and a correct
judgment was rendered on the answer, and this has been sa-
tisfied by payment, then he has a good defence. Again :
there was nothing to show that the garnishment was errone-
ous, and it must be presumed that the court in New-Orleans
proceeded according to law. Whether the answer was suffi-
cient to have authorized a judgment against the garnishee,
must be determined by the law of Louisiana, instead of that
of Alabama. Further, it was not necessary that the pay-
ment should have been made under execution it is suffici-
ent if the judgment was such as authorized an execution to
issue when it was satisfied and this it appears from the re-
cord, was the case.
E. W. PECK, for the plaintiffs in error. 1. The plaintiffs
demurrer to the defendants' fourth plea should have been
sustained. 1. Because the plea does not state that the de-
fendant had no notice of the transfer of the note before he
answered to the garnishment. [Mankin v. Chandler, 2 Brock.
125.1 2. It does not state that the entire debt sought to be
recovered by the plaintiff, had been attached. [Crawford v.
Clute _$ Mead, 7 Ala. 160.] 3. It does not aver that the
commercial court of New Orleans had jurisdiction to sum-
JUNE TERM, 1847. 93
Mills & Co. v. Stewart.
mon the defendant, to compel him to appear and answer, or
to give judgment against him, &c. [7 Ala. supra.] 4. It
does not aver that he was compelled to pay the judgment
rendered against him by the commercial court. [Cook v.
Field, 3 Ala. 56.J 5. The plea does not set out the pro-
ceedings in the attachment suit, nor show that all the re-
quirements of the law had been complied with. [Crawford v.
Slade, adm'r, 9 Ala. 891, and cases there cited.]
2. The record of the proceedings and judgment in the
commercial court of New Orleans, should have been reject-
ed. 1. Because it was not shown that the proceedings were
authorized by the laws of Louisiana. 2. Because on its
face it shows that the judgment was erroneous, and should
have been resisted by the defendant. The defendant in his
answer, states that Henry, the debtor, had told him once or
twice that he had transferred the note, &c. This fact being
disclosed, no judgment should have been rendered against
him. [Smith v. Chapman &|Brother, 6 Porter, 37(1, and ca-
ses cited.] 3. The note being negotiable was not the sub-
ject of garnishment process. [Sheets v. Glover, 14 Louisi-
ana R. 452.]
3. The court erred in the following charges : 1. In
charging the jury that they were bound to conclude that the
court which rendered the judgment acted correctly. 2. In
charging the jury that it was not necessary the payment
should have been made under execution, that it was suffi-
cient if the judgment was such that an execution could have
issued at the time of the payment, which appeared to have
been the case. The error in this charge is, 1. That it in-
structed the jury as though payment of the judgment had
been proved, when there was no evidence of that fact. 2.
In charging that it appeared that an execution could have
been issued on the judgment, without proof how such judg-
ments were enforced by the laws of Louisiana. 3. In charg-
ing the jury, that in the opinion of the court the judgment
was a valid judgment of Louisiana ; without there being any
evidence what those laws were. 4. The court erred in
charging the jury that they were at liberty to examine the
answer of the garnishee, and to give it credence if consis-
tent in itself, and not contradicted by evidence.
94 ALABAMA.
Mills & Co. v. Stewart.
LOCKWOOD. for the defendant. 1. The demurrers to the
fourth and fifth pleas were properly overruled. [Hitt v. La-
cy, 3 Ala. 104.] 2. It is true, the plaintiffs' replication to
defendants' fourth plea, contains the words " nul tiel record,"
which of itself is properly determinable by the court, but the
same replication includes a distinct fact, which is only de-
terminable by the jury ; the replication is double, and issue
is taken on it and submitted to the jury. But there is such
a record, and judgment by the court would have been for
the defendant. Even if it were error to submit the question
as to the record to the jury, still it would not be decisive of
this case. The judgment on the said record by the court,
either for plaintiff or defendant, would not be a ground of
reversal, inasmuch as the recovery of a debt sued for by a
previous garnishment may be given in evidence under the
general issue which was the fact in this case. [Cook,
Adm'r, v. Field, et al. 3 Ala. 54 ; McDaniel, et al. v. Hughes,
3 East. 366,] 3. The payment by a garnishee of a foreign
judgment and execution is a bar to a further recovery.
[Holmes v. Remson, 4 John. Ch. R. 460; 2 Kent's Com.
119 ; 4 Cow. R. 521 ; 20 Johns. Rep. 229; 1 Porter's Rep.
198 ; 2 Starkie, 707 j Story's Confl. L. 462-3.]
COLLIER, C. J. If a plea commence as an answer to the
whole declaration, and in truth the matter pleaded is only an
answer to part, the whole plea is bad, and the plaintiff may
demur ; but if it begin as an answer to part, it is deemed an
answer to that part only, although it may contain a legal de-
fence to the whole declaration. So it is said, that if a plea
begin only as an answer to part, and is in truth but an answer
to part, the plaintiff cannot demur, but must take his judg-
ment for the part unanswered as by nil dicit ; and if he de-
mur or plead over, the whole action is discontinued. [1 Chit.
PI. 509 ; Arch. Civ. PI. 168, 173.] In the case before us,
the plea objected to assumes to answer the entire declaration
and to furnish a bar to the action, while it merely alledges
the payment of the note in part, under the sanction of a judg-
ment agaiust the defendant, at the suit of the payee's credi-
tors, in another State, for the amount thus paid ; shows that
when called on to answer that suit, he admitted an indebt-
JUNE TERM, 1847. 95
Mills & Co. v. Stewart.
edness upon the note for nine hundred and seventy-five dol-
lars, with interest from the time of its maturity, for which
the judgment was rendered ; but does not state that the resi-
due of his note to Henry had been paid. It cannot, accord-
ing to any rule of pleading be intended that the defendant
had previously paid the difference between the amount of
the judgment, and the sum expressed upon the face of the
note. For this difference, amounting to more than eight
hundred dollars, the plea does not set out any legal objection
to the plaintiffs' recovery, and the demurrer should therefore
have been sustained for this defect.
It is no objection to the plea, that it does not alledge in
totidem verbis, that the defendant had no notice of the trans-
fer of the note, before he answered the garnishment in the
commercial court of New Orleans he affirms in his answer
an indebtedness to Henry, which he could not have declared
consistently with truth, if he had been informed that anoth^-
er person had become the proprietor of the note. If he had
notice, the plaintiff should have replied the fact, and establish
it. It is matter of affirmation which it devolves upon the
plaintiff to prove the defendant cannot be required to dis-
prove it, this would be to throw on him the burthen of mak-
ing out a negative before any evidence was adduced from
which the affirmative could be implied.
Where the record of the proceedings of one State are of-
fered in evidence, authenticated pursuant to the act of Con-
gress, in the courts of another, presumptions must be indulged
favorable to its jurisdiction ; especially where the form of
the proceedings does not indicate that it is a court of limited
powers. If, in point of fact, the tribunal of the sister State
had no jurisdiction either of the subject matter or the parties,
it was competent for the plaintiff to have replied to it, and
put the matter in issue. [Lucas v. The Bank of Darien, 2
Stewt. Rep. 280 ; Miller v. Pennington, Id. 399. See also
Martin v. Nicholls, 3 Sim. Rep. 545; Hopkins v. Lee, 6
Wheat. Rep. 100; Mayhew v. Thatcher, 6 Wheat. R. 129;
Field v. Gibbs, 1 Pet. C. C. Rep. 166 ; Shumway v. Stillman,
6 Wend. R. 44T; Taylor v. Phelps, 1 Gill & Johns. Rep.
492; McElmoyie v. Cohen's Heirs, 13 Peters' Rep. 312;
Hampton v. McConnell, 3 Wheaton's Rep. 234.] But it
% ALABAMA.
Mills & Co. v. Stewart.
must be intended, in the absence of extrinsic proof, or any
thing in the record impugning the regularity of the proceed-
ing, that the court had jurisdiction of the matter adjudicated,
and that the judgment was authorized by the facts and evi-
dence upon which it was rendered. [Hughes v. Morris, 2
Ala. Rep. 269 ; Kennedy v. Kennedy's Adm'r, 8 Ala. Rep.
391; Crawford v. Clute & Mead, 7 Ala. Rep. 157, and Craw-
ford v. Slade, Adm'r. 9 Id. 887, are altogether inapplicable.]
In these cases the defendant pleaded the pendency of an at-
tachment in the circuit court of the United States, at the suit
of creditors of the plaintiff, in which the debt sought to be
recovered had been attached by service of garnishment on
him (defendant). This court held, that such plea must aver
all the facts necessary to give the court jurisdiction in which
the suit is pending ; whether the whole or what part of the
debt had been attached. In these cases the garnishments,
though pending in a federal court, were influenced in its pro-
ceeding by the legislation of this State in respect to attach-
ment jand garnishee process ; and it was deemed essential ta
the defence to show, that, that tribunal was so proceeding
as to vindicate its jurisdiction. [See cases cited in 3 Kinne
L. Comp. 10.] But in the case at bar, the suit was instituted
and prosecuted to judgment in another State, and every pre-
sumption must be indulged favorable to its authority ; more
especially when it is alledged to have been proceeded in ac-
cording to the laws of that State ; and there is an absence
of proof, either intrinsic or extrinsic, to impugn the validity
or correctness of the judgment. The fact that the note was
negotiable, if it was not indorsed before its maturity, would
not exempt it from an attachment or garnishment, at the suit
of the payee's creditors, so long as he remained its proprietor,
or until the maker had notice of the transfer, if it was in-
dorsed after it was past due.
The statement of the fact of the amount of the judgment
against the defendant, its satisfaction, &c. made by the clerk
of the commercial court of New Orleans, though certified as
part of the record, cannot be treated as such. In the absence
of proof of the laws of Louisiana making it part of the pro-
ceedings in the cause, it cannot be treated as evidence of pay-
ment. In this respect, then, the evidence was insufficient to
JUNE TERM, 1847. 97
Sheppard, et al. v. Iverson.
tnake out the defence, as it was necessary to show not only
a judgment, but also to prove that it had been satisfied.
To have justified the defendant in making the payment of
the judgment, he need not have waited until he was coerced
by an execution. It is enough if there was a regular judg-
ment which could have been enforced by execution. In the
predicament of the exemplification, we have seen that it will
be intended that there was such a judgment, and that the
payment of the money was not gratuitous merely.
The answer of the garnishee as certified in the record
from Louisiana, was certainly evidence under the restrictions
laid down by the county court in fact the law was ruled
quite as favorably to the plaintiffs on this point as they were
authorized to ask.
We have seen that the plea is defective, and that the de-
murrer to it, instead of being overruled, should have been
sustained. The judgment is therefore reversed, and the
cause remanded.
SHEPPARD, ET AL. v. IVERSON,
1. Equity has jurisdiction to set aside the fraudulent transfer of a debt re-
duced to judgment, although the party may also be entitled to a legal
remedy by a garnishee process, against the fraudulent transferee.
2. When an insolvent father, pending a creditor's suit against him, transfers
to his son, notes, &c. to the value of $2200, of which $1500 only are on
solvent persons, and receives from him transfers of accounts for $2400, of
which from $1600 to $2000 are good, it is fair to infer a secret trust be-
tween the parties, and that the assignment by the father was made to de-
lay, &c., the creditor suing.
Writ of Error to the Court of Chancery for the 9th Dis-
trict.
13
98 ALABAMA.
Sheppard, et al. v. Iverson.
THIS bill is filed by Iverson against Edmund Sheppard,
William P. Sheppard, and E. A. Dunn, and H. Moore. Its
object is to obtain satisfaction of a judgment obtained by
.Iverson against Edmund Sheppard, and one Lore, by setting
aside the assignment and transfer of a judgment in favor of
said Sheppard, against Dunn and Moore, made by Sheppard
to his son Wm. P. Sheppard, in fraud, as the bill alledges, of
the complainant, and to prevent him from subjecting the
debt to the payment of his judgment.
The answers of the Sheppards deny any fraud, and assert
the fairness and validity of the transfer. The history of the
transaction, as given by them, is this : Previous to the 19th
April, 1842, the younger Sheppard was practising as a phy-
sician in the vicinity of Irwinton, and debts to the amount
of some $2400 dollars were due him on account. He was
about to remove to a place in Georgia, about one hundred
miles distant, and transferred them to his father in conside-
ration of an assignment of certain demands amounting to a-
bout $300 less than the medical accounts, and including the
one sought to be made subject to the complainant by this
bill. One reason assigned for the exchange is, that the ac-
counts were due from persons scattered over the country,
and difficult of collection, on account of the smallness of the
sums.
The proof taken in the cause, establishes that the follow-
ing demands were transferred by the elder to the younger
Sheppard, as the consideration for the accounts, to wit :
An order on J. M. Moore, $378
A note on W. Wellborn and E. A. Dunn, for 780
" Wm. Wellborn, for 394
" W. S. Paullin and David Lore, 260
" Morgan, Paullin & Hopkins, 220
" David Lore, for 200
Amounting in all, exclusive of interest, to $2232
The three last demands the witnesses consider as value-
less, or nearly so, and judgment was recovered on that against
Wellborn for only $70. All the witnesses concur, that the
JUNE TERM, 1847. 99
Sheppard, et al. v. Iverson.
estimated value of these demands was between $1400 and
$1560. The complainant's witnesses, two in number, as-
sert their belief that the solvent medical accounts transferred
did not exceed $700. Those for the defendants, with equal
positiveness, value the solvent demands at from $1600 to
$2000, and are four in number. The judgment against the
elder Sheppard was obtained in August, 1842, and the suit
was in progress at the time of the assignment. Most of the
witnesses concur, that the medical accounts were more val-
uable to the elder Sheppard than to any other person, from
the circumstance that he kept a wharf and warehouse, and
thus could engage the debtors to work out the debts.
The chancellor considered the exchange of the demands
by the elder Sheppard as colorable only, and fraudulent as to
complainant, and decreed accordingly.
It is now assigned that this decree is erroneous.
PECK, for the plaintiff in error.
No counsel appeared for the defendants in error.
GOLDTHWAITE, J. 1. At first, we were inclined to
think, that under the case made by the bill, the complainant
had an adequate remedy at law, by garnishee process, but
further reflection has convinced us, that even if this remedy
could be effectively pursued, it does not follow he may not
also proceed in equity to set aside the fraudulent assignment,
and thus reach assets which in reality belong to his debtor.
Fraud is one of the original grounds upon which courts of
equity have always considered themselves as entitled to en-
tertain jurisdiction. [Daniel's Ch. Prac. 611; Story's Eq.
184.] We conclude therefore that it is no objection to
this bill, that the party might have redressed himself by pur-
suing his legal remedy. [See, also, Mariott v. Givens, 8 Ala.
694, 4.]
2. The merits of the controversy involve no other ques-
tions than those of fact, or inferences from facts. If the
transaction between the two Sheppards was to be determin-
ed alone by the supposed inadequacy of the medical accounts,
the plaintiff would fail, for conceding the witnesses in his
behalf assert the value of them to be but $700, those for the
100 ALABAMA.
Sheppard, et al. v. Iverson.
defendants are equally positive in fixing it from $1600 to
$2000, and are double the number of those who hold the
other opinion. We do not think, however, the value of the
demands received by either party, a matter of much impor-
tance, except as furnishing a means by which to ascertain
whether or not a secret trust is to be inferred, as between the
parties. It will be seen the nominal amount of the demands
on each side was much the same thing, and most probably if
the interest on the notes transferred by the elder Sheppard
is a subject of conjecture, (for the proof is entirely silent,)
they may be assumed as equal. It is clear also, that more
than $600 of these notes were worthless. Now what reason
can be assigned in a bona fide transaction, for the desire to
acquire paper of this character ? If any can be given, it cer-
tainly is not disclosed by the proof. Then again the evi-
dence abundantly shows, that the father assisted the son in
his medical practice, and the son his father in the wharf and
warehouse business. It is strange, with these proper feel-
ings between them, that the father should trade for accounts
worth, according to the estimate of his own witnesses, from
$1600 to $2000, and only allow from $1400 to $1560. In
the ordinary transactions between such near relations, it might
be supposed the father would be as willing to aid his son in
the collection of these demands as to create them. It is very
difficult to conceive, that in such an arrangement between
those parties, there was not either an express or tacit under-
standing that the sum to be secured on either hand should
be made equal, and when it appears to have been made a short
time only before the debtor's capacity to assign might have
been affected by garnishee process, and when the debtor was
actually insolvent, the reasonable conclusion is, the transfer
was intended, not to advance the interest of the son, but to
defeat the father's creditor.
We think the chancellor took the proper view of the evi-
dence. Decree affirmed.
JUNE TERM, 1847. 101
Grimshaw and Brown v. Walker,
GRIMSHAW AND BROWN v. WALKER.
1. An assignment by an insolvent, conveying all his property to trustees, and
giving preferences to certain creditors, and directing first, the payment of
certain preferred creditors, " the surplus, if any, to be appropriated to the
other creditors rateably, who shall within four months execute a release
of their claims, and if there be any surplus, after fulfilling all the trusts
aforesaid, the same shall be paid over to the said R. L. W," is such a stip-
ulation, for the benefit of the deblor, as renders the deed fraudulent and
void.
2. An improper decree of the chancellor, cannot be upheld, upon the
ground, that he determined a demurrer to the bill improperly, for want
of proper parties, and uncertainty.
Error to the Chancery Court of Mobile.
THE plaintiffs in error filed their bill as judgment creditors
of Robert L. Walker, to set aside a deed of assignment made
by him, for the benefit of certain of his creditors. The deed
conveys to trustees all the real and personal estate of the
grantor in trust, that as soon as convenient, they would dis-
pose of the lands, collect the debts, &c. and from the pro-
ceeds, first to pay certain debts due and owing from Walker
for cotton balances, and borrowed money, as shown in a
schedule marked C. Next, a debt due the estate of
Alexander J. Jude the surplus, if any, to be appropriated to
the other creditors rateably, who shall within four months
from the date of the deed, execute a release of their claims,
" and furthermore, if there be any surplus, after fulfilling all
the trusts, aforesaid, the same shall be paid over to the said
Robert L. Walker, his heirs, executors, &c."
The bill charges fraud in the making of the deed.
The defendants answered, denying all fraud, and that the
deed was bona fide.
The chancellor considering the deed valid on its face, and
there being no proof of fraud in fact, dismissed the bill ; from
which this writ is prosecuted.
102 ALABAMA.
Grimshaw and Brown v. Walker.
CAMPBELL, for plaintiff in error.
W. G. JONES, contra.
ORMOND, J. The principal question to be determined,
arises upon the last clause of the deed, which it is insisted
created a resulting trust in favor of the grantor, and rendered
the deed void.
The law of this court, on the subject of assignments by an
insolvent, is thus stated in Ashurst v. Martin, 9 Porter, 566 :
" A debtor may convey his property in trust to pay one or
more creditors in full, or to pay his creditors in unequal pro-
portions, provided he relinquishes all control over it, and stip-
ulates for no pecuniary interest to himself, but fairly, and
bona fide, appropriates it to the payment of his debts." This
is again considered, and re-affirmed, in Gazzamv. Poyntz, 4
Ala. 379, and may be considered as the settled law of this
court. See also Hyslop v. Clark, 14 Johns. 458 ; Austin v.
Bell, 20 Id. 442 ; Mackie v. Carnes, 5 Cow. 547.
The only question, then, is, whether this assignment, be-
ing made by an insolvent, and conveying all his property to
trustees, by a deed giving preferences to certain creditors,
does provide for a pecuniary benefit to the grantor.
By the terms of the deed, the trustee is required, after the
execution of the trusts, to pay over the surplus, if any, to the
debtor. What are the trusts of the deed ? First, to pay the
preferred creditors. Second, such of the remaining creditors
as within four months executed a release, and the residue, if
my, to the debtor. It is very clear there was no authority
on the part of the trustees, to pay any creditor of the second
class, who did not release, but the effects, which in the event
of a release are to be thus appropriated, if no such release is
made, are to be paid to the debtor. If such a conveyance
can be permitted, it will be in the power of an insolvent debt-
or, by a conveyance to a trustee, to place his property beyond
the legal pursuit of his creditors to exact from them a re-
lease, as the condition upon which they shall be permitted
to participate in the property thus conveyed, and m the event
of their refusal, that the property thus 'placed beyond their
reach, shall be restored to him. This is a direct stipulation
for the benefit of the debtor, and is such an invasion of the
JUNE TERM, 1847. 103
Grimshaw and Brown v. Walker.
rights of creditors, as makes the entire deed void, within the
letter of the case of Ashurst v. Martin, supra. The precise
question here discussed, was fully considered in that case,
and it was there determined, that such a provision as this
would render the deed void ; but that the true meaning of
that deed was, that such of the preferred creditors as refused
to execute a release, were not cut off from all participation in
the benefits of the assignment, but were placed in the last
class, amongst whom all the residue was to be divided, and
that as all the assigned effects were devoted to the payment
of the creditors, there could be no resulting] trust to the
grantor.
This principle, as applicable to such a provision, is assert-
ed by Chancellor Kent, in his 2 Com. 39, where the lead-
ing authorities are collected, and examined. See also, Burd
v. Smith, 4 Dall. 76 ; Seaving v. Brinkerhoff, 5 Johns. Ch.
332; Harris v. Sumner, 2 Pick. 129; Passmore v. Eldridge,
12 S. & R. 198.
This is not like a clause in a deed providing for the pay-
ment of all the creditors, and directing the trustee to pay the
surplus, if any, to the grantor, because that would be the le-
gal effect of the deed, if no such provision was inserted.
[Johnson v. Cunningham, 1 Ala. 259.] Nor is there any
thing in the case of Hindman v. Dill & Co. 11 Ala. 689, ad-
verse to the view we are now taking. That was not the as-
signment of all the effects of the debtor, but was merely the
exercise of the admitted right of a debtor, to prefer one of his
creditors, by a conveyance of slaves to a trustee, to be sold
for the payment of the debt ; and if the sale yielded a larger
sum than was necessary to pay the debt, the law implied that
it was to be paid over to the grantor. There was therefore
no impropriety in inserting such a stipulation in the deed.
The difference between that case, and the present, is, that
here all the effects of the debtor were transferred to the trus-
tee, not absolutely for the payment of the creditors, but upon
condition that they agreed to certain terms which the debtor
imposed on them, and if they did not agree to these terms,
then the property, or its avails, or such portion of it as was
not paid to the creditors, was to be returned to the grantor.
The only coercion the debtor can lawfully exercise over his
104 ALABAMA.
Grimshaw and Brown v. Walker.
creditors, when by a general assignment he has placed his
property beyond their control, by legal pursuit, is, in regard
to the order of their payment. Thus he may provide, that
those who release shall be preferred to those who do not, but
he cannot place the property beyond the reach of his credi-
tors, and dictate the terms on which they shall enjoy its
benefits, at the peril of having it restored to him, if they do
not accede to the terms imposed on them. There is in prin-
ciple no difference between such a provision, and one giving
to the debtor, or his trusteee, the right to declare the uses, by
changing the order of preference. In both cases a right is
reserved by the deed, of control over the creditors. In this
case, the effect of the provision is an admonition to the cre-
ditors, not provided for, that if they do not release, the pro-
perty, or what is still worse, its avails will be restored to the
debtor. Yet no principle is more decisively settled by the de-
cision of this, and other courts, than that a deed of assignment
to be valid, must distinctly declare the uses ; and that no
control, or coercion, can be reserved in the deed, to be exer-
cised, either by the debtor or his trustee ; and that no benefit
can be stipulated for by the debtor. He may declare the or-
der in which the creditors shall be paid, and may exact a re-
lease from future liability as the price of the preference ; be-
yond this he cannot go. See this doctrine elaborated in Gaz-
zam v. Poyntz, 4 Ala. 380, and cases there cited. This deed
being in violation of these well established principles, is null
and void.
The objection for the want of proper parties, cannot be
made by the defendant in this court, as the chancellor over-
ruled the demurrer to the bill for this cause. If the objection
had been tenable, and sustained by the chancellor, the effect
would not have been a dismissal of the bill, but the party
would have been permitted to amend. It cannot be there-
fore urged here as a justification for the chancellor, in dismiss-
ing the bill for another insufficient cause.
For the same reason no objection can be made here to the
bill for uncertainty, in not sufficiently describing the decree
of the complainant, which is the foundation of the bill. If
JUNE TERM, 1847. 105
Dunham v. Grant
the objection had not been overruled by the chancellor, the
bill would have been amended.
The decree dismissing the bill must be reversed, and the-
cause remanded for further proceedings.
DUNHAM v. GRANT.
I. An administrator cannot sue upon a note, an asset of the estate, which fte
has taken payable to himself as administrator, after his removal from of-
fice, although- no successor has been appointed.
Writ of Error to the Circuit Court of Dallas*
THIS was an action of assumpsit on a promissory note, by
which the defendant below, on the 21st January, 1842, prom-
ised to pay twelve months thereafter, to the plaintiff, as ad-
ministrator of Margaret McCord, deceased, the sum of $682
88. The defendant pleaded 1. Non-assumpsit. 2, That
the note declared on was made payable to the plaintiff, as ad-
ministrator of the estate of Margaret McCord, deceased, of
which he was such representative j and was at and after its
execution, assets thereof in the plaintiffs hands ; that the
same was given in consideration of personal property of the
intestate, sold by the plaintiff in his character of administra-
tor, by virtue of an order of the orphans' court of Dallas, and
was received and held by him in that character, and not oth-
erwise. It is then alledged, that afterwards, and before the
commencement of this action, the plaintiff's letters of admin-
istration on the estate, and his authority as administrator-
were by the court from which he derived his appointment
revoked and annulled, and still are revoked and annulled ;
that the plaintiff is not now, nor was at the commencement
of this suit, the administrator of the estate of Margaret Me-
U
106 ALABAMA.
Dunham v. Grant
Cord, or entitled as such, or in any other right or way to
maintain an action against the defendant on the note declared
on. This last plea was verified by the defendant's oath.
The plaintiff demurred to the second plea, and his demurrer
being sustained, the cause was submitted to the jury on the
general isstie, a verdict was returned for the plaintiff, and
judgment rendered accordingly.
C. G. EDWARDS, for the plaintiff in error, insisted, that the
second plea was good it alledged facts incompatible with
the plaintiff's title to the note, or right to maintain an action
thereon. [Clay's Dig. 227, $ 30 ; Minor's R. 206 ; 5 Port.
Rep. 145 ; 6 Ala. Rep. 399.J The plea sets up a bar prima
facie sufficient, and the plaintiff should have specially re-
plied any matter of avoidance.
E. W. PECK, for the defendant in error. The payee of
the note might have maintained an action thereon in his own
name without describing himself as administrator. [1 Chit.
Plead. 203.] If the administrator whose letters are revoked,
recover, he and his sureties will be liable lor the amount.
[Clay's Dig. 222, 9.] He must be allowed to recover it, or
the debtor may avoid payment altogether. The cases cited
for the plaintiff in error, merely determine that an adminis-
trator de bonis non may maintain an action upon a note or
bond payable to his predecessor, if it is delivered over to him.
[Minor's Rep. 206 ; 2 Stewt. Rep. 133 ; 6 Ala. Rep. 387-
399.]
COLLIER, C. J. In Caller's Ex'rx v. Birney's Adm'rs,
Minor's Rep. 206, it was decided, that an administrator de bo-
nis non could maintain an action on a writing payable to his
predecessor in his representative character ; that as the money
when received would be assets of the intestate's estate, the
right of action followed the administration. To the same
effect is King and Clarke v. Griffin, use, &c. 6 Ala. R. 387.
So it has been held that bonds and notes taken by executors
and administrators for property of the estate they respectively
represent, are " held by them not in their own right, but as
assets in the right of others. And hence, upon their death,
JUNE TERM, 1847. 107
Dunham v. Grant.
resignation or removal, such notes or bonds would pass to
those entrusted with the further administration, as part of the
estate unadministered ;" consequently, the marriage of an
obligee who was an administratrix with one of the obligors,
only suspended the right of action upon the bond, which was
revived in favor of an administrator de bonis non. [King v.
Green, 2 Stewt. Rep. 133.] Green v. Foley, 2 Stewt. & P.
Rep. 441, merely determines, that although the recovery of
a judgment by an administrator for a debt due the intestate
vests the interest in the administrator, arid authorizes him to
sue thereon in his own name, without noticing his represen-
tative character, yet where some of a plurality of administra-
tors are removed from the trust after the rendition of a judg-
ment in favor of all, an action on the judgment is properly
brought in the name of the administrator who continues in
office. In Cummings v. Edmondson, 5 Porter's Rep. 145,
the right of an administrator de bonis non to sue upou a
writing payable to his predecessor eo nomine where the mo-
ney due thereon will belong to intestate's estate when col-
lected, is recognized and supported.
In Harbin v. Levi, 6 Ala. Rep. 402, it was said, that the
rights and duties of an administrator under the earlier English
statutes, are very different from what they are in this State.
There he was clothed with a discretionary power over the
personal estate of his intestate, and when disposed of by him,
either for money or on credit, the money or notes were abso-
lutely his own. Here, however, the administrator is required
by law to dispose of the assets on credit, and it is appre-
hended that, so long as they continue in a condition to be
traced, and are not converted into money, they will pass as
assets to any subsequent administrator. This, indeed, is the
rule in England when the property has not been changed."
In the opinion, the case of Turner v. Davies, 2 Saund. Rep.
137, is cited ; there an administrator had recovered a Judg-
ment in trover for the conversion of the property of his intes-
tate, but his letters were repealed before it was satisfied. An
audita querela was awarded at the instance of the defend-
ant, and it was held that the removed administrator could not
sue an execution on the judgment, as it was clear that the
administrator dc lonis non was entitled to the money, and if
10S ALABAMA.
Dunham v. Grant.
collected by his predecessor, he would recover it of him.
And therefore to avoid circuity of action, the defendant was
discharged from liability to the plaintiff in the judgment, and
held chargeable to the new administrator for the value of the
goods converted.
In Gayle, Adm'r, v. Elliott, 10 Ala. Rep. 264, it was de-
cided, that it was not a good plea by an administrator in an
action against him that he had resigned the trust, the plea
should also alledge, either that he had administered the assets
that came to his hands, or that he had delivered them to his
successor : Further, that the 15th section of the act of 1821,
" is explicit, and declares that an administrator shall not dis-
charge himself by resigning his trust ; it is made his duty to
deliver to his successor all the assets and effects which shall
not have been duly administered or applied. True, the au-
thority and duties of an administrator cease with the resigna-
tion of his trust, and settlement of his accounts, but his con-
servative powers in respect to the estate still continue, until
he absolves himself from responsibility by delivering it to his
successor. He has not only the power, under such circum-
stances, to preserve the estate, but the law makes it his duty;
otherwise, he would not be able to do, what not only the
statute, but the common law, enjoins on him."
By the act of 1806, it is enacted, that if it appear, upon
examination, that any administrator hath embezzled, wasted
or misapplied, all or any part of the decedent's estate, or shall
refuse or neglect to give bond, with security, when required
by the orphan's court, that court may forthwith revoke or re-
peal the letters of administration, and thereupon commit the
administration to such other person having a right thereto as
will give the proper bond ; who may have actions of trover,
detinue, account and on the case, for such goods or chattels
as came to the possession of the former administrator, and
were withheld, wasted, embezzled, detained or misapplied,
by him, and no satisfaction made for the same. [Clay's Dig.
221, 4.]
The 19th section of the act of 1821, " to repeal in part and
amend an act, entitled ' an act to regulate the proceedings in
the courts of law and equity in this State,' " enacts, that
where any personal representative or guardian shall be dis-
JUNE TERM, 1847. 109
Dunham v. Grant.
placed, all moneys due to him or her in such right, by execu-
tion or otherwise, shall be paid to his or her successor."
[Clay's Dig. 227, > 30.] The 15th section of the same stat-
ute provides that an executor, administrator or guardian, may
by writing subscribed and delivered into the clerk's office, re-
sign his or her authority: but in such case, he and his sure-
ties shall be bound for all the assets or effects, which shall
not have been duly administered or applied, or shall not be
delivered to his successors. [Id. 222, <> 9.]
The plea in the case at bar alledges, that the note declared
on was given by the maker, and received by the plaintiff in
consideration of personal property sold by the latter in his
character of administrator, under an order of the orphans'
court : Further, that afterwards, and before the commence-
ment of this action, the plaintiff's letters of administration
and his authority as administrator was revoked and annulled,
and still are revoked and annulled ; that the plaintiff is not
administrator, nor entitled in any other right to maintain the
action. We cannot doubt the sufficiency of this plea as a
bar to the action, and if the plaintiff had sued in his individ-
ual, without noticing his representative character, it would
have been equally available. The fact that a note or bond
is made payable to an administrator eo nomine, it has been
held in several of the cases cited, does not invest him with a
title against his successor in the administration if it was as-
sets of the estate he represented, apon his resigning or being
displaced, it would pass as such, to the administrator de bonis
non.
We have seen that the act of 1806 authorises the orphans'
court, if an administrator has embezzled, wasted, or misap-
plied all or any part of the intestate's estate, or refuses or neg-
lects to give bond as required by law, to revoke or repeal his
letters of administration. The administrator derives his au-
thority from the orphans' court, and if that is withdrawn or
annulled, what powers does he retain as such ? Can he col-
lect money due the estate ? If he can, it must be because it
is his duty to preserve the estate, and deliver it to his suc-
cessor. I will not say that the right to receive money, or
even maintain an action for it before the successor is appoint-
ed, is not under any circumstance* a conservative power.
110
_
Dunham v. Grant.
But where letters of administration have been revoked or re-
pealed under the statute, the administrator retains no autho-
rity as such his duty is, to deliver to the successor the as-
sets unadministered. The object of annulling the grant is
to take from the administrator the right to collect money due
the estate, or to interfere further in the administration. The
orphans court proceeds in such case upon the ground, that
the administrator has been faithless to the trust, or has not
given the security which the law requires, in order to indem-
nify all persons interested in the estate. If the revocation of
his authority proceeded from the faithlessness of the admin-
istrator, or from its abuse, to permit him afterwards to main-
tain an action for money due the estate,, would only enable
him to embezzle, waste or misapply the estate still further ; or
if it was the result of neglect or refusal to execute a bond, the
conversion of the assets into money would increase the risk of
loss from the want of the proper security. In either case, the
concession of such a power to a displaced administrator would
most obviously thwart the policy of the statute, if not its
very terms. Besides, the act of 1821 expressly declares, that
in such case all monies due to the administrator, by execution
or otherwise, shall be paid to his successor. This is equiva-
lent to a positive declaration that no one else is authorized
to receive them.
While this view carries out the letter of the statutes, it al-
so preserves their spirit, and cannot possibly work harm to
any one. There is no danger of loss to the estate from the
administration remaining in abeyance ; for the statute is ex-
plicit in directing the orphans' court mero motu, upon the
letters being revoked or repealed, "to grant letters of admin-
istration to such other person or persons, having a right
thereto, as will give bond," &c. Should it not be presumed,
if material, that this duty has been performed ? In the ab-
sence of any thing of which the reverse may be pre-
dicated, must it not be intended that courts and public
officers have done what the law requires ? If then, the ap-
pointment of an administrator de bonis non be a material in-
quiry, should not that fact have been negatived by a repli-
cation. The view we have taken does not make it necessa-
ry to answer these questions.
JUNE TERM, 1847. 111
Dunham v. Grant.
Whether, if the plaintiff had merely resigned his trust, it
would have been necessary to show the appointment of a
successor, in order to make out his defence, the facts of this
case do not make it necessary to inquire. It remains but to
a^yttiat the judgment of the circuit court is reversed, and
tlw^pise remanded.
ORMOND, J. Dissenting.
In this case I dissent from the opinion just pronounced.
Notwithstanding the removal of the administrator from of-
flbe, the law casts on him the necessity of preserving the ef-
fects of the estate remaining in his hands, and he can only
discharge himself, by handing them over to his successor.
If the assets are chattels, it would be his duty to institute
proceedings to recover them, if taken from him by a wrong-
doer, and his failure to do so, would subject him to a respon-
sibiMtf , as was held by this court, in Gayle, Adm'r, v. Elliott,
10 J| 264.]
I am unable to perceive any distinction in principle be-
tween that case and the present. If a removed, or resigned
administrator, cannot commence, or maintain a suit, on notes
taken by himself upon the sale of the property of the estate,
where no successor has been appointed, the consequence will
be, that much loss may be sustained by the estate, as the
debtor may be about to remove, or the bar of the statute of
limitations may be nearly complete, and could only be pre-
vented by the commencement of a suit. This power is en-
tirely conservative in its character, and cannot possibly lead
to abuse. Whilst, on the other hand, to permit such an ot
jection as this, to be raised by the debtor, that the remove
administrator, in whom the legal title remains until his suc-
cessor is appointed, cannot sue, without showing that any
other person has the right to sue, will certainly be produc-
tive of the most mischievous results.
112 ALABAMA.
Johnson v. Elliott.
JOHNSON v. ELLIOTT.
1. When the decree settling the equities in a suit against a non-residjf3i-
rects that it shall be suspended until the statutory bond is given, qutre,
whether a final decree afterwards rendered, during the same term, upon
the report of the master, upon a reference directed by the former decree
is not within its reservation.
2. It is error to decree a sum certain to a widow in lieu of dower, to be rais-
ed by a sale of the entire estate out of which the dower interest arises. The
decree should be for the payment annually of the sum ascertained to be
the annual value of the dower interest
3. When the grantee of the husband, after his death, receives the rents, al-
though the widow, upon a bill filed by her to ascertain and settle her claim
for dower, is entitled to a decree for her proportion of the rents so receiv-
ed, the decree for what is due should be a general money decree, and it is
not a lien upon the estate conveyed by the husband so as to overridwjther
charges, or liens created by the grantee.
w
Writ of Error to the Court of Chancery for the first Dis-
trict.
THIS bill is filed by Mrs. Elliott, against Johnson, and its
object is, to obtain her dower, as well as to set aside a relin-
quishment made by her, of her dower interest in certain pre-
mises described in the bill, which it was alledged she was in-
duced to execute after her husband's death, without any
consideration, by reason of certain false re presentations made
to her by Johnson and by one Walker, who owned the pre-
dses, jointly with her husband, and who> after his death,
linistered on his estate. The estate was conveyed by
her husband and Walker to the defendant, Johnson, and one
Chapman, and Chapman conveyed his half to Johnson, by
deed bearing date the day of . The bill alleges, that
Johnson has been in possession of the premises, and receipt
of rents, since November, 1835. Johnson is proceeded a-
gainst as a non-resident defendant, and the requsite publica-
tion having been made, the bill was taken as confessed, for
his omission to answer.
JUNE TERM, 1847. 113
Johnson v. Elliott.
At the hearing, on the bill and decree pro confesso the
chancellor decreed the relinquishment should be set aside,
and directed a reference, to take an account of the refits to
ascertain and report what portion of the same the complain-
ant is entitled to receive as her dower right and also to re-
port whether dower can be assigned without manifest injury
to the parties in interest, and if it cannot, what portion of mo-
ney ought to be paid the complainant in lieu of dower, and
whether it would be more beneficial to sell the premises and
pay her portion out of the proceeds of the sale, or to permit
hter to receive annually one third part of an undivided half of
the annual rents during her lifetime.
The question of costs, and all others not disposed of, re-
served until the coming in of the report. It was also direct-
ed, that this decree should be suspended, until the complain-
ant gave bond, with surety, conditioned to abide such order
touching the restitution of the estate, &c., as the court may
make concerning the same, on the appearance and petition of
the defendant to have the cause reheard.
No bond appears to have been given, but during the same
term of the court at which the hearing was had, and after the
decree recited, the master reported, that the reasonable rents
of the premises, after deducting reasonable expenses for re-
pairs, and insurance, from November, 1835, to November,
1846, amounted to $8,802, of which the complainant was
entitled to receive one-sixth part, or $1,467. Also, that dow-
er could not be assigned without manifest injury to all the
parties in interest, and that the complainant should receive
in lieu thereof, $1,000, which would be more beneficial to
her than the receipt of one-sixth of the annual rents.
It was thereupon ordered at the same term as the former
decree, that the defendant should pay into court the sum of
$2,467, the amounts due the complainant for back rents, and
for the value of her dower, as ascertained by the master, by
the 1st day of January, 1847, and in default that the premises
be sold, 3"c.
The defendant now assigns as error
1. The rendition of the decree, without proof of the alle-
gations of the bill.
15
114 ALABAMA.
Johnson v. Elliott
2. That he was never made a party to the bill.
3. That no bond was given pursuant to the decree.
4. That Walker should have been made a party.
5. That the decree allows one-sixth of the rents, &c., as
dower, when her husband was tenant with Walker.
6. That the decree is erroneous.
E. S. DARGAN, for complainant in error.
No counsel appeared for the defendant in error.
! vf",
GOLDTHWAITE, J. 1. As the decree settling theequ*-
ties of the cause, provides for its own suspension until the
bond is given which the statute requires, when the defend-
ant is a non-resident, and as there is some doubt with us
whether that confirming the master's report, and directing
the sale, is not to be considered as within the reservation of
the other, we shall put our present decision on other points
of the record.
2. The decree is erroneous in directing a sale of the entire
estate conveyed by the husband, for the purpose of produc-
ing the sum ascertained by the master as the value of the
complainant's dower interest. It is evident, that under a
forced sale, it might happen that the whole interest which
the husband had, and out of which the right of dower arises,
would be sold without producing more than the sum decreed
as compensation to the widow, and thus the purchaser, instead
of losing one-third of the estate during the life of the widow,
would be deprived of the whole. This matter was consider-
ed fully in the recent case of Beavers v. Smith, 11 Ala. 20,
and we there held, that when compensation is made in mo-
ney, the decree should not be for a gross sum, by estimating
the supposed present value of the widow's life estate, but for
the payment annually of the sum ascertained to be the an-
nual value of the dower interest, during the life of the dow-
ress, secured by a lien upon the estate. It was erroneous,
therefore, in our judgment, to decree a specific sum to the
widow, to be produced by a sale of the premises from which
the right of dower arose.
3. It also admits of question, whether the sum ascertain-
ed as due the complainant, for her proportion of the back
JUNE TERM, 1847. 115
Case and Eslava v. P. & C. Byrne.
rents was properly chargeable as a lien on the estate. It
seems to us, this is a matter for which the decree should have
been a mere money decree, against the defendant, and the
effect of which would be to charge him personally. We do not
see well, how the decree in its present form could, in this
particular, affect him injuriously, if he remains the owner of
the premises, and therefore might not feel warranted in revers-
ing on this ground only, yet, inasmuch as a lien or charge
created pending the suit, would seem entitled to override the
claim of the complainant, on account of the back rents, we
think any future decree should be put on the proper ground.
Decree reversed and cause remanded for further proceed-
ings.
CASE AND ESLAVA v. P. AND C. BYRNE.
1. Upon a suit by husband and wife, on a note given to them jointly, for a
debt created with the defendants, by the dealing of the wife with the con-
sent of the husband, the defendants may set off an account, not included
in the note, created in the same course of dealing.
Error to the Circuit Court of Mobile.
ASSUMPSIT by the defendants in error, on a promissory
note.
The plaintiffs count upon a promissory note made to them
by the defendants, in the usual form. The pleas are thus
entered: "Defendants plead non-assumpsit, payment, and
set-off, in short by consent." Signed by defendants' attor-
neys ; and an entry by plaintiffs' attorney, " I consent to the
above pleas in short."
The plaintiffs then demurred to the plea of set-off, and the
demurrer was sustained by the court, and upon the trial of
116 ALABAMA.
Case and Eslava v. P. and C. Byrne.
the other issues, a verdict and judgment was rendered for the
plaintiffs. Upon the trial, as appears from a bill of excep-
tions, the defendants proved that Catharine Byrne, one of the
plaintiffs, was the wife of the plaintiff Patrick Byrne. That
she had been trading with the defendants, in shrubs, plants
and flowers, with the consent of her husband, and that he
recognized her acts. That the note in suit was given in the
course of these transactians, and that in the course of these
dealings, she became indebted to the defendants in the sum
of $227 30, which was not included in the note sued on.
The defendants then offered to prove the account as a set-off
to the plaintiffs' demand, but the court on the plaintiffs'
motion rejected the evidence, and charged the jury, that the
plaintiffs must recover the full amount of the note. To all
which the defendants excepted, and which they now assign
as error.
W. G. JONES, for the plaintiffs in error.
1. The plaintiffs in error were defendants below. They
put in a general plea of set-off, which was taken in short by
consent in writing of the plaintiffs' attorney. It was cer-
tainly error to sustain a demurrer to this plea, if any imagina-
ble off-set was allowable in this case.
2. The declaration shows that the note sued on was made
to both the plaintiffs, and the pleadings (which of course can
alone be looked to on the demurrer) do not show that the
plaintiffs were husband and wife. For aught that appears,
they may have been partners in trade, and of course there
might possibly be a good set-off against their claim.
3. The bill of exceptions shows that the plaintiffs were
husband and wife ; that the note was made payable to both
of them jointly, and grew out of trading and sales by the
wife, with the husband's assent. She was therefore her hus-
band's agent. The property sold was his, and the consider-
ation of the note moved from him. The account offered as
an off-set was of precisely the same character, and ought to
have been admitted. The decisions below were doubtless
made on the authority of the case of Morris v. Booth and
wife, 8 Ala. R. 907. But this case is essentially different
from that ; in this case, the note sued on was made to both
JUNE TERM, 1847. 117
~ Case and Eslava v.l*. and C. Byrne.
husband and wife ; there it was to the wife alone. In this
case, it was proved that the consideration for the note moved
from the husbands-it is like the case of Ferguson v. Lathrop,
15 Wend. 625, where in a suit by husband and wife for rent
belonging to the wife, a debt due from the husband to the
defendant was held a good off-set.
DARGAN, contra.
ORMOND, J. We do not consider the waiver of the
plaintiffs' counsel, to extend further, than that he did not ob-
ject to the pleas not being formally written out, and did not
preclude him from raising the question by a demurrer, whe-
ther the pleas so indicated by their name, were good pleas in
bar of the action, if formally pleaded. The demurrer was
doubtless interposed upon the supposition, that the declara-
tion disclosed the fact, that the plaintiffs were man and wife,
and that therefore the plea of off-set could not be interposed
to an action brought in their joint name. As the declaration
did not disclose this fact, the demurrer, as now admitted in
argument, was improperly sustained, even upon the conces-
sion, that a set-off could not in any case be pleaded, to an
action commenced by husband and wife.
As the evidence of a set-off could only be introduced un-
der a plea of set-off, the court having by its judgment ex-
cluded the plea, rightfully excluded also the evidence. But
as it was in proof, that the plaintiffs were man and wife, and
the question will be again presented when the cause comes
on for trial again in the circuit court, we think it proper to
express an opinion upon the evidence.
We can see no reason why the set-off in this case should
not be allowed. The debt in suit, and the one offered to be
set off, are both due in the same right, as they arise out of
the same course of dealing. The wife can be considered in
these transactions, in no other light than as the agent of the
husband, and he is therefore responsible for her acts, and en-
titled to the benefit of her contracts. It can make no differ-
ence, that the promise of the defendants is to the husband
and wife jointly. It is in law a promise to the husband, and
he being responsible for the debt created by his wife to the
118 ALABAMA.
The Branch Bank at Montgomery v. Hodges.
defendants, when acting by his consent, the debt sued on,
and the one offered to be set off, are due in the same right,
and may be set off, the one against the other.
Morris v. Booth and wife, 8 Ala. 907, was a suit by hus-
band and wife on a promissory note, made to the wife after
marriage. This was evidence that the consideration moved
from her, or in the language of the books, that she was the
meritorious cause of the action ; and therefore, the husband
might join her with him in the suit. The consequence of
thus joining her in ih suit was, that the cause of action
would~urvive to her, and would not go to the personal re-
presentative, if the husband died pending the suit ; and that
therefore a set-off against the husband, which might defeat
this right, would be improper. [Bedgood v. Way, 2 Black,
1236 ; Rose and wife v. Bowles and Read, 1 H. Black, 108 ;
Buckley v. Collins, 1 Salk. 114; Philiskirk v. Pluckwell, 2
M. & S. 393 ; 1 Chitty P. 31.]
It is scarcely necessary to remark, that no judgment is ex-
pressed upon the sufficiency of the declaration, as in the pre-
sent position of the case, no question arises upon it.
Judgment reversed and cause remanded.
THE BRANCH BANK AT MONTGOMERY v. HODGES
1. A bill in equity, by which &feme covert asserts her marital rights against
her husband ; or seeks to have settled to her separate use, property, which
he has purchased with her separate funds, is not such a proceeding in rem,
as to make the decree therein rendered, conclusive on all persons ; but is
binding only on the parties to it
Writ of Error to the Circuit Court of Barbour.
. ' ' .- ; ,-.
A WRIT of fieri facias issued from the circuit court of Mont-
JUNE TERM, 1847. 119
The Branch Bank at Montgomery v. Hodges.
gomery, against the goods and chattels, &c. of John P. Booth
and others, which was received by the sheriff of Barbour, on
the 7th September, 1846, and levied by him on the follow-
ing day, on a male slave named Bob, as the property of Booth.
Thereupon the defendant in error made an affidavit, and ex-
ecuted a bond with surety, to try the right, pursuant to the
statute. An issue was accordingly made up and submitted
to a jury, who returned a verdict for the claimant, and there-
on judgment was rendered.
On the trial, the plaintiff in execution excepted to the rul-
ing of the court. It is shown by the bill of exceptions, that
the plaintiff proved the levy of ihefi. fa., the value of the
slave, and the declarations of the defendant in execution,
while he was in his possession. Other evidence was adduced,
that Booth had won Bob at a game called Faro, in the year
1838, while he was the husband of the claimant's cestui que
trust, Martha R. W. Booth. Evidence was also offered by the
claimant, showing that Booth, the husband, had purchased
the slave with the notes of one Sawyer, together with his
declaration at the time of the purchase; that he intended the
slave for one of his " chaps." Claimant then adduced an an-
tenuptial settlement, dated in the year 1833, securing to the
cestui que trust, certain property therein mentioned, but not
embracing the slave in question. In this deed it was stipu-
lated that the real estate and slaves devised to Mrs. Booth, by
her father, and all other property which she might thereafter
inherit, should be held and remain their separate and distinct
estate, not subject to any other disposition, save only by the
consent of herself and trustee : it was also stipulated, that
the property embraced by the deed should " be and remain
in^the possession of said Booth, after said marriage, for the
benefit of the parties."
Claimant introduced a decree of the court of chancery hold-
en in Barbour county, at the November term, 1845, founded
on a decretal order pro confesso, in which cause Mrs. Booth,
by the complainant as her next friend, was complainant, and
her husband was defendant. By that decree, the marriage
settlement referred to, was reformed, and the slave in ques-
120 ALABAMA.
The Branch Bank at Montgomery v. Hodges.
tion was secured to Mrs. Booth, as having been purchased
with .her separate funds. To the admission of this decree
the plain tiff objected, but the objection was overruled, and
the evidence admitted.
Plaintiff then adduced evidence to prove that Booth, the
husband, was indebted to him and others when the decree
was rendered, and that he was insolvent at that time. The
court charged the jury, that the decree was a sentence in rent,
and conclusive not only upon the rights of the parties and
privies in this court, unless attacked for fraud, but upon the
whole world ; and that the title vested by the decree was
paramount to any other title ; whereupon the plaintiff ex-
cepted.
P. T. SAYRE, for the plaintiff in error, insisted, that the de-
cree proved nothing as against the plaintiff, who was a pre-
existing creditor. As evidence it was entitled to no more in-
fluence than a deed of gift, or other conveyance, from Booth,
the husband, for the benefit of his wife. It should have
been shown by evidence aliunde, that Bob was purchased
with the money of Mrs. Booth. The law is well settled,
that a judgment or decree is evidence of the matters adjudi-
cated between parties and privies only ; in respect to other
persons, they are only admissible to prove the fact, that they
were rendered. [1 Stark, on Ev. 6 Am. ed. 217; 1 Greenl.
Ev. 3d ed. 672, 687 j 7 Port. Rep. 476 ; 9 Id. 412 ; 7 T.
Rep. 2.]
The decree is not in rent. Such a decree can only be pro-
nounced by a court exercising peculiar jurisdiction, which
enables it to pass upon the nature and qualities of a particu-
lar subject matter, of a public nature and interest, indepen-
dently of any private party ; such as bankruptcy, marriage,
bastardy, testamentary matters, decisions in courts of admi-
ralty, and adjudications upon questions of settlement. [1
Stark. Ev. 240.] A decree in rem can only be rendered in
a proceeding in which any and every one may make him or
themselves a party or parties. [Norris' Peake, 123 j 9 Cranch's
Rep. 126.] To make a decree in rem binding, the parties
affected must have personal notice, or the thing itself must
JUNE TERM, 1847. 121
Tee Branch Bank at Montgomery v. Hodges.
be operated upon by process, or so affected as to warrant the
implication of a notice to the person.
J. BUFORD, for defendant in error. The decree was ad-
missible to prove the fact of its rendition, and as a link in
the claimant's title. [1 Greenl. Ev. 1st ed. $<> 538, 539.]
The object of the bill was to reform the antenuptial settle-
ment, and to obtain a title to Bob, who had been purchased
with the funds of Mrs. Booth ; this indicates, that as it re-
spects the slave in question, the decree is in rem, and can
only be attacked for fraud, either by pre-existing creditors,
or others whose debts were subsequently created. [1 Greenl.
Ev. $ 550 ; 8 Johns. Rep. 173 ; 3 Camp's Rep. 126 ; 8 C.
& P. Rep. 679 ; 14 Pick. Rep. 280 ; 12 Mass. Rep. 488 ; 4
Id. 147; 13 Id. 153; 5 Johns. Rep. 101; 3 Binn. R. 338;
4 T. Rep. 187; 4 S. & R. Rep. 557; 20 Johns. Rep. 229;
1 Conn. R. 1 ; 1 Stew. R. 500 ; 6 Porter's R. 219, 241 ; 10
Ala. R. 355, 796.]
COLLIER, C. J. If it could avail the claimant any thing
to show that a decree had been rendered, such as was addu-
ced by him, the record was admissible to establish that fact.
But the decree as against the plaintiff in execution, would
prove nothing more. The fact that the slave was purchased
with Mrs. Booth's money, or that her husband had, without
authority, converted funds which were a part of her separate
estate, and that the slave was settled on her as a substitute for
the money, before the plaintiff's lien attached, should have
been shown by extrinsic evidence.
It is certainly true, that a judgment or decree operates as
evidence against strangers to the original suit, where the pro-
ceeding is, as it is technically called, in rent. This it is said
happens where a court exercises a peculiar jurisdiction, which
enables it to pronounce on the nature and qualities of a par-
ticular subject matter of a public nature and interest, inde-
pendently of any private party. Within this class are com-
prehended cases relating to marriage and bastardy, where the
ordinary has certified ; to sentences relating to marriages and
testamentary matters in the spiritual court ; decisions of courts
16
122 ALABAMA.
The Branch Bank at Montgomery v. Hodges.
of admiralty, judgments of condemnation in the exchequer,
and adjudications upon questions of settlement. The gene-
ral rule in such cases is, that such a judgment, sentence, or
decree, if final in the court in which it is pronounced, is evi-
dence against all the world, unless it can be impeached on the
ground of fraud or collusion. This rule seems to be founded
upon one or both of these considerations : First, because it
is essential to the existence of such a jurisdiction, that its
judgment should be binding in all courts. Secondly, because
all who are interested in the result may become parties to the
proceeding. [1 Stark. Ev. 227 to 243, 1st Am. ed.]
In the case of the Mary, 9 Cranch's Rep. 144, Chief Jus-
tice Marshall says, the decisions of a court of exclusive juris-
diction, are necessarily conclusive on all other courts, be-
cause the subject matter is not examinable in them. With
respect to itself, no reason is perceived for yielding to them a
further conclusiveness, than is allowed to the judgments and
decrees of courts of common law and equity. They bind
the subject matter as between parties and privies. The
whole world it is said are parties in an admiralty cause, and
therefore bound by the decision. Every person may make
himself a party, and appeal from the sentence ; but notice of
the controversy is necessary in order to become a party, and
it is a principle of natural justice, of universal obligation, that
before the rights of an individual can be bound by a judicial
sentence, he shall have notice, either actual or implied, of the
proceedings against him. Where the proceedings are against
the person, notice is served personally, or by publication ;
where they are in rem it is served upon the thing itself. A
notice served on a thing, will give information to all who have
any interest in it; every such person may therefore be con-
sidered a party. But those who have no interest which could
be asserted are not presumed to have had notice, and can on
no principle of reason or justice be regarded as parties. When
a person thus situated is brought before a court, in which the
fact is examinable, no sufficient reason is perceived for pre-
cluding him from re-examining it. That this is allowable
where the judgment of a court of common law, or the de-
cree of a court of equity is drawn in question, under such
circumstances is said to be unquestionable ; and the learned
JUNE TERM, 1847. 123
The Branch Bank at Montgomery v. Hodges.
Chief Justice could perceive no reason why a different rule
should prevail in a court of admiralty where its decree is
there questioned by those who had no interest in the thing,
that could be asserted there, and as to whom notice could
not be implied.
This view of the law is quite sufficient to show, that a bill
in equity, in which a feme covert asserts her marital rights
against her husband ; or seeks to have settled to her separate
use, property which he has purchased with her separate funds,
is not such a proceeding in rein as makes the decree render-
ed thereon conclusive against the whole world. It is not es-
sential to the jurisdiction exercised in such a case, that the
decree should be binding in all courts, and as against all per-
sons ; nor would it be competent for all persons who might
in future set up some claim to the property thus situated, or
insist upon subjecting it to the payment of the husband's
debts, to become parties to that proceeding ; and upon no
principle can they be charged with notice of its pendency.
The consequences which attach to a proceeding and decree
in rem, technically so called, cannot be applied in the pre-
sent case, any more than in any suit in which specific pro-
perty is recovered, or adjudged to be settled or conveyed in
some particular manner. The principle which would war-
rant its application, would make a decree foreclosing amort-
gage, or a judgment in detinue for the plaintiff, binding upon
the whole world as to the facts determined. No such influ-
ence has ever been claimed for these, or cases of a kindred
character ; and we have no doubt that upon principle and au-
thority they are only binding upon parties and privies.
The claimant was a creditor of the husband, previous to
the decree in favor of Mrs. Booth. It then devolves upon
her trustee to show, either that the husband never had a ti-
tle to the slave in controversy, or that it had passed from him
for a valuable consideration before the plaintiff acquired a
lien by issuing execution. This cannot be done by the mere
production of the decree. Even if it had been rendered up-
on an answer denying the allegations of the bill, it would
not be evidence against the plaintiff who was a mere stran-
ger ; much less can it conclude persons in that predicament,
124 ALABAMA.
Forward, et al. v. Armstead.
where it is the result of a decretal order taking the bill pro
confesso. If the defendant in execution had settled the slave
by deed, on his wife, no one would pretend that such a deed,
unassisted by extrinsic proof, would be evidence to affect a
judgment creditor. Here the decree is entitled to no greater
influence ; for it is only the judgment of law upon facts al-
ledged by the wife, and admitted by the husband. It is, as
it respects the plaintiff, res inter alias acta proves nothing
but the fact of its rendition the basis upon which it rests
should have been shown by the claimant, by other and un-
exceptionable proof. The consequence is, that the law was
incorrectly ruled by the circuit court. Its judgment is re-
versed and the cause remanded.
FORWARD, ET AL. v. ARMSTEAD.
1. A promise by a father to a son, that if he will remove from North Caro-
lina and settle in Alabama, he will give him a particular plantation and
slaves, cannot be enforced in equity by specific performance as a contract,
it being a mere gratuity, although the son is by it induced to break up at
a loss, and is put to trouble and expense in the removal.
2. Part performance of such a promise, by putting the son in possession of
the plantation and slaves, and his making improvements on the lands, will
not warrant a court of equity in decreeing a conveyance by the heirs or
devisees of the father after his death, no conveyance or written agree-
ment to convey, or promise to convey, being proved.
Writ of Error to the Court of Chancery for the thirteenth
district.
THE case made by the bill is, that William Armstead, the
father of the complainant, John K. Armstead, as an induce-
ment for. the latter to remove with his family to Alabama
from the State of North Carolina, where he was then living,
JUNE TERM, 1847. 125
Forward, et al. v. Armstead.
promised and undertook, if he would do so, to give him cer-
tain lands known as the Turkey Creek plantation, as well as
certain slaves. That confiding in his promise to do so, the
complainant did remove, at great loss and expense. That
William Armstead, in part performance of his promise, put
him in possession of the lands and slaves as a gift. That
believing the lands were his, he has made valuable improve-
ments on them, by clearing and opening a plantation, and
also on other lands purchased by the complainant for the
purpose of erecting dwelling houses, &c. as appurtenant to
said plantation. That these improvements on the lands so
purchased are of little or no value, except in connexion with
the plantation. That William Armstead died without mak-
ing any deed for the premises, leaving the defendants his
heirs at law, some of whom have commenced suit for the re-
covery of the Turkey Creek lands. The prayer is, that this
suit may be enjoined, and the defendants decreed to convey
the title of the lands constituting the Turkey Creek planta-
tion.
The defendants deny the material allegations of the bill,
and set up the statute of frauds as a defence. They also ex-
hibit the will of William Armstead, which directs the sale of
the Turkey Creek plantation to be made by his executors
Forward and Westward Armstead and the proceeds to be
equally divided between Forward W. W. Armstead and Ed-
mund Waddle. The answer also asserts, that particular alle-
gations of the bill, such as that William Armstead had more
affection for the complainant than his other children, is un-
true, and state the contrary, as the complainant in North Ca-
rolina had been convicted of a criminal offence. This was
excepted to as scandalous, and on that account was stricken
from the answers. Several of the defendants, having no in-
terest in the proceeds of the lands, were examined as wit-
nesses, without any order of the court to that effect, and
their depositions were on that ground suppressed at the
hearing.
The general scope of the evidence is, that Armstead, the
father, told his son John K. that if he would move to Ala-
bama he would give him the Turkey Creek plantation, and
that after his removal he put him in possession of it. It was
126 ALABAMA.
Forward, et al. v. Armstead.
also in evidence that John K. sold his place in North Caro-
lina at a low price, upon breaking up his residence there.
The chancellor considered it immaterial whether the
agreement was to be considered as one for a sale or gift, as it
had been partly performed by putting the complainant in
possession, decreed that the title should be vested in him,
and the suit enjoined at the costs of the defendants.
This decree is assigned as error, as is also the striking out
the matter of the answer excepted to as scandalous, and the
suppression of the testimony of the defendants having no in-
terest in the suit.
BLOUNT, for the plaintiffs in error.
LESLIE and B. F. PORTER, contra.
GOLDTH WAITE, J. The opinion here will be confined
to an examination of the principal point, as the decision on
that will be decisive of the suit.
It will be seen that the promise by the father to give his
son the Turkey Creek plantation and slaves, is stated in the
bill as a contract, of which the consideration is asserted to be
the breaking up in North Carolina, and the expense and
trouble of removing to Alabama. The proof, if it can be
said to sustain the allegations of the bill even as to the form
of a contract, has riot the slightest effect in proving the sub-
stance of one. It is entirely evident that there was no sub-
ject or thing to be contracted for. The son was not bargain-
ing for the plantation and slaves, nor was the father con-
tracting for the son's removal. In other words, the slaves
and plantation were not to be paid as the consideration for
the removal, nor was the removal the cause which induced
the promise to make the gift. It would scarcely be contend-
ed, if the gift had been made, and the question between the
complainant and defendants was now, as it would be in case
of the father's intestacy, whether the plantation and slaves
were an advancement to the complainant, that the selling out
in North Carolina and removal to Alabama would change the
gift into a purchase, and thus let him in to an equal division
of the remaining estate ; and yet the same principle obvi-
ously must prevail in the one, as in the other case. As a
JUNE TERM, 1847. 127
Forward, et al. v. Armstead.
contract, the facts here do not constitute any thing near so
strong a case as in Kirksey v. Jones, 8 Ala. Rep. 131 ; where
we held, a letter by one to the widow of his brother residing
60 miles distant, promising that if she would come and see
him, he would let her have a place to raise her family, was
a mere gratuitous promise, although in consequence of the
letter, she broke up and removed. On the same principle,
the specific performance of a gift of lands was refused in Reed
v. Van Arsdale, 2 Leigh, 569 ; though one of the judges
there was of the opinion that if the promisee had incurred
necessary expense in the removal, that performance should
have been enforced.
It seems to us, that the expense incurred in a removal un-
der such inducements, does not furnish the test whether the
engagement is to be considered a contract, instead of a gratu-
ity, because expense, or at least trouble, which is equivalent
to it, must always be incurred ; but as we have before indi-
cated, the test is, whether the thing is to be paid in conside-
ration of the removal, instead of being giv^i from motives
of benevolence, kindness, or natural affection.
2. There being in our judgment no ground to consider the
promise in the nature of a contract, we shall next consider,
whether a promise to make a gift will be enforced, when the
subject of the gift is land, and the party has made improve-
ments on it, after being put in possession by the donor, but
the gift is incomplete from the omission of the donor to exe-
cute a conveyance. We have no decisions bearing directly
on this proposition, except, on the one hand, sustaining the
general proposition that equity will not enforce even a cove-
nant which does not rest on a valuable or meritorious consid-
eration ; [Darlington v. McCook, 1 Leigh, 36 ;J and on the
other, that it will do so, when there is a contract, although
that, in the first instance, may be invalid for the want of wri-
ing, but is afterwards partly performed. It is evident nei-
ther of these propositions are sufficiently broad to let in, or
refuse relief, iu this particular case ; for, as we have shown,
there is no contract, and it seems to be sufficiently proved
the complainant was let into possession, and made some im-
provements, or at least amelioration of the land as donee.
Another principle may seem to have more bearing. It is
128 ALABAMA.
Howell v. Reynolds.
generally recognized, where one in possession under color of
title, makes improvements which are known to the true own-
er, and he conceals the facts that he asserts a paramount title,
he will not afterwards be permitted to recover the land with-
out making compensation for the improvements. [1 Story's
Eq. 388, and cases there cited.] This principle, we appre-
hend, can have no application to a mere donee, unless he has
been induced to make the improvements under the promise of
a conveyance, (whether even then it would apply is a matter as
to which we express no opinion,) for until then, it cannot be
said that a fraud is practised on him ; and it was his own fol-
ly to improve lands which he knew in point of law to belong
to another, and when the uncertainty with regard to the ti-
tle, could be determined at once by asking for a convey-
ance.
We have preferred to consider the case in this mode, with-
out reference to the nature or value of the improvements, ei-
ther upon the identical lands, or upon those which the com-
plainant afterwards purchased for a residence, as appurtenant
to the plantation. In any point of view, we are of opinion
the bill should be dismissed.
Decree reversed, and bill dismissed.
HOWELL v. REYNOLDS.
K
1. The rule that a witness cannot be contradicted by proof of previous conn-
ter declarations, either written or verbal, applies to testimony taken by de-
position, and if such supposed contradictory declarations, exist at the time
the deposition is taken, the witness must have the opportunity afforded him
of explaining it if in his power.
2. If a partnership, upon its dissolution, convey all its effects to one of the
firm, and after such dissolutioa and transfer, a debtor of the firm promise
JUNE TERM, 1847. 129
Howell v. Reynolds,
pay the individual partner, he may maintain an action in his own name
on the promise.
Writ of Error to the County Court of Dallas.
ASSUMPSIT by the plaintiff in error. The declaration con-
tains the common counts, and an account stated.
Pleas Non-assumpsit, and the statute of limitations.
The plaintiff proved, that in the fall of 1841, the account
sued on was presented to the defendant, at which time he
said he would take the account, and do what was rightabout
it ; and by another witness, that in 1842, he promised to pay
it, if plaintiff would give him a small credit for corn. Upon
the account there was a credit for corn, and the defendant
did not offer to prove any amount, as payment or set off.
There was evidence on the part of the defendant, tending
to prove, that the account was created, whilst the plaintiff,
and one Bonneau were partners, selling goods under the style
of Howell & Bonneau. That the partnership was dissolved
about the 24th of April, 1838, which was the date of the
last item in the account, and that after the dissolution, the
defendant had settled the account with Bonneau. It was
also proved, that at the time of the dissolution, it was agreed
between Howell & Bonneau, that all the accounts of the firm
should belong to Howell; and that he should take the books
and accounts, and receive the money due the firm,
The fact of the time of the dissolution of the firm, Was
proved by the evidence of Bonneau, taken by interrogatories,
and for the purpose of discrediting his testimony, the plain-
tiff offered in evidence a voluntary affidavit made by Bon-
neau, in which he stated, that the partnership between him-
self and Howell was dissolved on the first January, 1838.
Cross interrogatories were propounded by plaintiff to Bon-
neau, but he was not inquired of as to this affidavit, or in-
.formed that his testimony would be impeached. It does not
appear when the affidavit was made. There was evidence
tending to show, that the partnership was dissolved about the
17
130
_
Howell v. Reyqolds.
1st January, 1838. The court refused to permit tha affida-
vit to go to the jury, to which the plaintiff excepted.
The plaintiff moved the court to charge, that if the ac-
count sued on was made with the firm of Howell & Bon-
neau, and on the dissolution of the firm, the books and ac-
counts were transferred to Howell that the account was
made out in his name, and when presented to defendant he
promised plaintiff to pay it, he was liable in this action. The
court refused so to charge, but instructed the jury, that if the
account Avas a partnership transaction, the plaintiff could not
recover ; to which the plaintiff excepted. These matters
are assigned as error.
LODOR, for plaintiff in error, made the following points :
1. The refusal of the court below to allow Bonneau's af-
fidavit, referred to in the bill of exceptions, to go to the jury.
[1 Phil. Ev. 293 ; Ewer v. Ambrose, 10 Serg. & L., or 4
Barn. & C. 25 ; De Suilly v. Morgan, 2 Esp. 691.]
2. The refusal of the court below to charge the jury, that
Reynolds' promise to pay the account individually to How-
ell, made him liable to Howell in this action, under the cir-
cumstances detailed in the bill of exceptions.
3. The refusal of the court below to allow the plaintiff to
poll the jury under the circumstances detailed in the bill of
exceptions. [3 Black. Com. 377 ; Fox v. Smith, 3 Cow. R.
23 ; Blackley v. Shelden, 7 John. 32 j Bunn v. Hoyt, 3 Ib.
253 ; Root v. Sherwood, 6 Ib. 68 ; see head Polling of Jury,
6 Am. Com. L. Cases, 334 to 337.]
4. The matter of the bill of exceptions.
ORMOND, J. The rule of evidence relied on to justify
the exclusion of the affidavit of Bonneau, to contradict his
testimony, is the rule established by the judges in the Queen's
case, and which has been frequently held to be the law, by
this court that a witness cannot be impeached by proof of
counter declarations made by him, without first asking him
whether he has made such declarations. The reason of the
rule is, that it may be in his power to explain the apparent
JUNE, TERM, 1847. 131
Howell v. Reynolds.
contradiction, and the rule is the same, whether the declara-
tion of the witness supposed to contradict his testimony, be
written or verbal. [3 Stark. Ev. 1741.1
*
The question is usually made, where witnesses, are exam-
ined orally, in open court, and in our opinion, it must also
apply to testimony taken by deposition, as the deposition is a
mere substitute for the witness ; and we can perceive no rea-
son, why a witness testifying in this mode, should not be en-
titled to the same protection, as if he had testified orally, in
the presence of the court and jury. If then this paper exist-
ed, when the plaintiff was notified, that the deposition of the
witness was to be taken, and was informed by the interroga-
tories, of the testimony the witness was expected to give, it
was his duty to give him an opportunity of explaining it, if
he could, and reconciling it with the evidence he then gave;
if there was any real, or apparent contradiction between them.
But if the affidavit was made subsequent to the time when
the interrogatories were propounded, from the necessity of the
case, the plaintiff should have been permitted to offer it in
evidence, as a declaration of the witness, contradicting his
testimony. How the fact was, as to the time when this vol-
untary affidavit was made, we are not informed by the re-
cord ; we must therefore presume in favor of the judgment
of the court, that it is correct, until the contrary was shown.
It is the duty of the party alledging error, to show it affirma-
tively upon the record.
But in the charge to the jury the court erred. The jury
might have believed from the testimony before them, that
the partners, upon the dissolution of the partnership, trans-
ferred all the accounts and effects of the firm to Howell, and
that afterwards the defendant promised him to pay the ac-
count. We cannot doubt that it is competent for a partner-
ship, upon its dissolution, to convey to one of the firm all its
effects, and nothing is more common ot frequent in practice,
as the burthen of paying the debts frequently devolves on
one of the firm. This arrangement would not, it is true,
convey the legal title, so as to authorize such partner to sue
133 ALABAMA.
Carter and Ott v. ftandy.
in his own name, upon a debt created in the name of the firm.
But if, after such a transfer, the debtor promises to pay the
debt to such partner, he may maintain an action upon the
promise in hiS own name.
The last question made, upon the right of the plaintiff to
poll the jury, under the circumstances of this case, need not
be decided, as there must be another trial.
Reversed and remanded.
CARTER AND OTT v. MUNDY.
1. A witness who stated, that he had made a contract with the claimant for
the purchase of the premises in question, which he considered advantage-
ous, and that the claimant was to put him in possession as soon as he
could, is an incompetent witness, on the ground of interest for the claim-
ant, in an action of forcible entry and detainer, to recover the possession,
though the witness also swore, he would not lose or gain by the event of
the suit
Writ of Error to the Circuit Court of Butler.
THIS was a proceeding for a forcible entry and detainer,
pursuant to the statute, instituted by the defendant in error
against Carter alone ; a verdict and judgment having been
recovered by the complainant, a certiorari was obtained by
the defendant, who executed a bond with Ott as surety; con-
ditioned for the successful prosecution of the cause in the
circuit court. The errors assigned in that court being ad-
judged insufficient, the judgment of the justice of the peace
was affirmed, and rendered against the defendant and secu-
rity for costs. From a bill of exceptions sealed at the in-
stance of the defendant Carter, it appears that on the trial be-
fore the justice, the complainant offered one Shipp as a wit-
JUNE TERM, 1847. 133
Carter and Ott v. Mundy.
ness, who stated that he had made a contract with the com-
plainant for the purchase of the premises in dispute, provided
he could obtain possession ; that the contract was an advan-
tageous one to him, yet he would not lose or gain any thing
by the event of the suit: Further, that under the contract,
the plaintiff was to put him in possession as soon as he could.
Witness intended to cultivate or lease the land during the
year 1846, (the same in which the suit was tried,) if he could
get possession. The defendant objected to the competency
of the witness to give evidence for the complainant on the
ground of his interest, but the court overruled the objection,
and adjudged that the witness was competent.
N. COOK, for the plaintiff in error, insisted 1. That to en-
title a party to proceed for a forcible entry and detainer, he
must have had the actual possession. [Minor's Rep. 131.1
2. That Shipp had such an interest in the event of the suit
as disqualified him from giving testimony. [1 Phil. Ev. C.
& H's ed. 63-332; 3 Id. 820-1.]
T. H. WATTS, for the defendant in error, contended, that
the witness had no direct and immediate interest in the event
of the suit, but was only interested in the subject matter. [6
Ala. Rep. 647; 9 Id. 803.] Whether the complainant had
the actual possession and was expelled from it, is a point not
presented to this court for revision.
COLLIER, C. J. There is nothing in the record to indi-
cate, that it was not shown the complainant had the actual
possession of the premises in question ; the complainant ex-
plicitly alledges that such was the fact, and it cannot be in-
tended that it was not proved at the trial.
It is well settled, that to disqualify a witness upon the
ground of interest, it must be shown that he will either gain
or lose by the direct legal operation and effect of the judg-
ment, or that the record will be evidence, either for or
against him in some other suit. It must be a present, cer-
tain and vested interest, and not uncertain, remote or contin-
gent. [Massey v. Rogan, 6 Ala. Rep. 647; Stewart v. Con-
ner, 9 Id. 803.J It must be in the event of the cause itself,
134 ALABAMA.
Carter and Ott v. Mundy.
or in the record as an instrument of evidence in support of
his own claims, in a subsequent action. So it must be a le-
gal interest, as distinguished from the prejudice or bias re-
sulting from friendship or hatred, or any domestic or social
relation, or any other motive by which men are generally in-
fluenced ; for these go only to the credibility. [1 Greenl.
Ev. 432.]
Where the immediate effect of a judgment for the plaintiff,
is to confirm the witness in the enjoyment of an interest in
possession, or to place him in the immediate possession of a
right, he is not a competent witness for the plaintiff. Neither
can a lessor be admitted as a witness, to prove a right of pos-
session in his lessee to a portion of the land, claimed as part
of the premises leased. [1 Greenl. Ev. 438 ; Doe v. Wil-
liams, Cowp. Rep. 621; Smith v. Chambers, 4 Esp. Rep.
164; Rex v. Williams, 9 B. & C. Rep. 549.]
It is laid down by two distinguished elementary writers
on the law of evidence, that if a plaintiff' agree with a witness
that in case he recover the lands, he will grant him a lease
of them for so many years, this excludes his evidence ; for
the w-itness would have a fixed and certain advantage by the
event of a verdict. [Gilbert's Ev. 108 ; 1 Phil. Ev. C. & H's
ed. 63.] The learned annotators upon Phillips are of opin-
ion that this dictum rests upon a sound principle, although it
may seem to be questioned in Ten Eyck v. Bill, 5 Wend. R.
55, a case with which it did not conflict. We have exam-
ined this latter citation, and are satisfied that it is in harmo-
ny with the law as stated by the text writers, and that they
are well supported by principle. [See Peyton v. Hallett, 1
Caine's Rep. 364; Hovill v. Stephenson, 3 Mo. & Payne's
Rep. 146 ; Wood v. Braynard, 9 Pick. Rep. 322.]
In Marquand v. Webb and Webb, 16 Johns. Rep. 89, Mr.
Justice Spencer says : " My opinion proceeds upon the prin-
ciple, that whenever a fact is to be proved by a witness, and
such fact be favorable to the party calling him, and the wit-
ness will derive a certain advantage from establishing the
fact in the way proposed, he cannot be heard, whether the
benefit be great or small. [See also Stewart v. Kip, 3 Johns.
Rep. 89 ; Pickett v. Cloud, 1 Bailey's Rep. 362 ; Stebbins
v. Sackett, 5 Conn. Rep. 258 ; Wood v. Braynard, 9 Pick.
JUNE TERM, 1847. 135
Dunn, et al. v. Davis.
Rep. 322 ; McCall v. Smith, 2 McC. Rep. 375 ; Jackson, v.
Hill, 8 Cow. Rep. 290.]
In the case at bar we think the witness had such an inter-
est in the event of the suit as rendered him incompetent to
testify for the plaintiffs. He had made a contract which he
declared was an advantageous one, for the purchase of the
premises in question, provided he could obtain the posses-
sion. This is quite sufficient to show that he was interested
in the plaintiffs recovery, and his affirmation that he would
not gain or lose by the result, was intended as a mere state-
ment, that if the plaintiff was unsuccessful, the contract
would be inoperative, and the witness would not be required
to pay any thing upon it. The case comes within the influ-
ence of the citations we have made it is this, a witness will
obtain the benefit of an advantageous contract, if plaintiff
succeeds in recovering property for which the suit is brought
he will derive no benefit from the contract if the plaintiff
fails. The witness's interest is sufficiently shown by the
statement of his relation to the parties. It therefore follows,
that the judgment of the circuit court is reversed, and the
cause thence remanded, that a procedendo may be awarded
to the justice of the peace trying the cause, or his successor
in office, and the appropriate proceedings be there had.
DUNN, ET AL. v. DAVIS.
1. A bequest of slaves " to my daughter Mina, during her natural life, and
at her death to her heirs, or children," is not an estate tail, and vests a life
estate only in the daughter her children taking vested remainders.
2. A demand is not necessary when the action is detinue, although the de-
fendant, previous to the action, held possession under one having the life
interest
ALABAMA.
Dunn, et al. v. Davis.
Writ of Error to the Circuit Court of Shelby.
DETINUE by Joseph B. Dunn and others, against Davis, to
recoveiva certain slave.
At the trial, the plaintiffs made title to the slave in con-
troversy, under the will of Archer Barton, which contains
this clause : "I give to my daughter Mina, during her nat-
ural life, and at her death to her heirs, or children, my negro
man, Abram."
They then proved this will was made in the year 1832, in
Lowndes county, in this State that Mina therein named
was then the wife of Solomon W. Dunn that both husband
and wife died in the State of Arkansas, previous to the com-
mencement of this suit and that the plaintiffs are the chil-
dren of the said Mina Dunn.
The defendant offered evidence tending to show the said
slave, in 1840, was levied on by virtue of afi. fa: in favor of
S. Ciley, against Solomon W. Dunn, and then sold under the
same, as well as that he was purchased and paid for by the
defendant. No demand in terms was shown previous to the
commencement of the suit.
On this evidence, the court charged the jury, the plaintiffs
were not entitled to recover.
Plaintiffs excepted, and now assign this charge as error.
CHILTON, for the plaintiff in error.
1. That from the entire clause it was clear the testator in-
tended his grandchildren, to take as purchasers, and that the
remainder to them was vested, not contingent. [4 Kent's
Com. 212 ; Goodright v. White, 2 Black. Rep. 1010 ; Wood-
ley v. Findley, 9 Alabama Reports, 720 ; McGraw v.
Davenport, 6 Porter's Rep. 319; Fellows v. Tann, 9 Ala.
Rep. 999 : Dingly v. Dingly, 5 Mass. 535 ; Dunlay v. Dun-
kp, 4 Dess. 305, 318; 4 Paige, 293; 7 Paige, 328; 7
Paige, 544; Davis v. Tant, 6 Dana, 52,]
T. D. CLARK and S. F. RICE, for the defendant in error,
argued
___ JUNE TERM, 1847. 137
Dunn, et al. v. Davia.
1. By the terra heirs, the testator referred to those who
take the estate by operation of law, and therefore they can-
not be considered as purchasers. [Shelly 's case, 1 Rep. 93 ;
Price v. Price, 5 Ala. Rep. 578 ; Harkins v. Coalter, 2 Por-
ter, 463.]
2. If however, the title is in the children of Mrs. Dunn,
as purchasers, then, as the defendant's possession was lawful,
a demand was necessary after the death. [Stewart v. Fra-
zer, 5 Ala. Rep. 114.]
GOLDTHWAITE, J. 1. I feel some degree of hesita-
tion in expressing my individual opinion in regard to the
construction of this will, inasmuch as it differs entirely from
that of a majority of the court. What did the testator mean
by the terms heirs, or children, must be the common ques-
tion to be answered by all, for it is that intention which must
be carried into effect if it be consistent with l^|j I under-
stand him to mean, not merely children which should be liv-
ing at his death, but all who should be subsequently born to
his daughter. I also understand him to mean a matter great-
ly beyond this, and that if when his daughter died, there
should be grand-children, or even more remote descendants,
these also were to be the recipients of his bounty, if their pa-
rent descended from his daughter had ceased to live. This
to me seems clear, from the use of the term heirs, or children.
It then comes to precisely this a gift to his daughter during
her natural life, and at her death to her issue. If the will
contained these terms, an estate tail in the most simple form
would be created. That the testator intended to create such
an estate, seems to me clear, from the circumstance of his
omitting to make any limitation over in the event of his
daughter's leaving no issue living at the time of her death.
It seems evident to me, the testator considered himself as
parting, by the bequest, with the entire interest in the pro-
perty thus given to his daughter, and this is confirmed by
the circumstance that he afterwards constitutes residuary le-
gatees, without in any manner adverting to any reversion
which might be supposed to arise from the failure of the is-
sue in tail. Would it be a proper construction of this will,
18
138 ALABAMA.
Dunn, et al. v. Davis.
to invest the residuary legatees under the will, or the gene-
ral distributees of the testator, supposing him intestate, as to
the reversion in this slave, with the title, if Mrs. Dunn, in-
stead of leaving children had left only grand-children, or
their descendants when she died ? I state the question be-
cause its answer seems to me decisive of the ca'se presented.
If it is answered, there is no reversion until the descendants
of children fail, as well as children, then the conclusion seems
to me irresistible, that the terms used by the testator were
intended in no other sense than as heirs of her body, and the
will may be read, " I give to my daughter Mina, during her
natural life, and at her death to the heirs of her body."
I am aware there are a series of decisions in the English
chancery, which hold that children shall not be construed to
include grand-children, or other descendants, and that the
term is never equivalent to issue, unless a clear intention to
make it so, appears from other terms in the will, but to my
apprehension, the rule itself rests on most questionable
grounds, and never could have been adopted, if children there,
as with us, stood as general heirs. The first case is Cook v.
Brocking, 2 Vern. 107, where a legacy was vested in trust to
secure Ann Crewe a maintenance out of the interest during
her husband's life, with the absolute disposal of the principal
if she survived him, but if he was the survivor, the money to
go to her sister's children, as she should advise. Ann died
before her husband, without giving any direction, leaving an
only sister, who at Ann's death had one child, and several
grand-children in existence. Lord Jeffries determined the
fund should be divided between the only child and the grand-
children, but his decision was reversed by the Lords Com-
missioners on a re-hearing. This was followed in Rives v.
Brymer, 4 Vesey, 692, in a case where the bequest was by a
father, which was directed to be equally divided between his
children, who should be living at the death of his wife, and
grand-children were excluded. To the same effect is Rad-
cliffe v. Buckley, 10 Vesey, 195. It is true, these decisions
seem to turn on the construction of the testator's intent, but
it cannot be disguised that the intention of a will in England
might be quite different, so far as children are concerned,
from what the same words used here would indicate. Of
JUNE TERM, 1847. 139
Dunn, et al. v. Davis.
course I shall not be misunderstood as extending this remark
beyond the distinction existing in letting in all children with
us, as general heirs ; and in this sense I apprehend the word
children, with us, is most frequently used as heirs. What-
ever might be the proper construction of such terms, when
unexplained, the introduction in this will of the term heirs
seems to me clearly indicative that the testator considered
them as equivalent and convertible terms.
Having arrived at the conclusion that this will is to receive
the same construction as if the words, heirs of her body were
found where heirs, or children occur, it seems to me that no
particular class of heirs is designated, and therefore that they
are words of limitation, and not of purchase. If Mrs. Dunn
was the devisee of real estate, in the same terms, an estate
tail would be created within the rule of Shelly's case, and in
accordance with all the cases, personal estate bequeathed by
similar terms, vests absolutely in the first taker. [2 Roper
on Leg. 351, 357, and cases there cited. See also, Robinson
v. Fitzherbert, 3 Bro. Oh. 127,]
This is the course of reasoning which has led my mind to
the conclusion, that the entire estate in the slave in contro-
versy, under the will, vested in Mrs. Dunn, and consequently
passed to her husband in virtue of his marital rights, but a
majority of the court consider the will as investing her only
with a life estate, and that the remainder was in the children
of Mrs Dunn, whether in esse at the death of the testator, or
born subsequently. They consider it settled, that the term
children, is in general, a word of purchase, and is to be con-
strued as a term of limitation, only when it is absolutely ne-
cessary so to construe it, to carry into effect the testator's in-
tention. [Buffer v. Bradford, 2Atk. 221.] They also hold,
this case as within the reason of the decision of Crawford v*
Trotter, 4 Madd. 361, where a bequest to a female "and her
heirs, (say children,") was held to give her only a life estate
with remainder to her children. In addition to the English
cases, the majority of the court are sustained in their view by
Knight v. Wall, 2 Dev. & Batt. 125, where a will in very
similar terms to those used in this, was considered as vesting
an estate in slaves in all the children of the person having
the life estate, whether bom before or after the death of the
'* '
140 ALABAMA.
~~" ~ Dunn, et al. v. Davis.
testator. The result is, that the title of the plaintiffs is suffi-
cient to warrant a recovery of the slave, and it was error to
instruct the jury otherwise upon the evidence.
2. As to the question that no demand was made for the
slave previous to the action, we all consider this immaterial,
when the suit is in detinue. [Knight v. Wall, 2 Dev. & Bat.
125.] ,In that action, nothing but the title is in controversy,
except in some peculiar cases, where the party, notwith-
standing his title, is not entitled to the immediate possession.
Judgment reversed, and cause remanded.
COLLIER, C. J. The intention of the testator is the pole
star in the construction of wills, and whenever consistent
with law, it will be supported. It is perfectly clear to my
mind, that the term " heirs," in the clause in question, is not
to be received in the sense in which it is generally under-
stood, as applied to real estate, or where used without restric-
tion. The word "children," which is connected with it by
the disjunctive " or," shows that it was intended as designa-
tio personarum. This conclusion seems to me to be an ob-
vious sequence, when the purpose of the testator, and the fact
that the subject of the gift is personal property, are consider-
ed. We must take the words " heirs or children" in refer-
ence to the connection in which they are found, and to what
must have been the testator's intention. Subjecting them
to this test, I cannot doubt that " heirs" was used as a word
of purchase, and consequently that the mother did not take
an absolute estate, so as to let in the creditors of her husband
to the exclusion of her children. I consider this point so
well settled upon authority, that I will not amplify this opin-
ion. [See'Vaux v. Henderson, 1 Jac. $ W. Rep. 388, n ;
Lovelady v. Hopkins, Amb. Rep. 273 ; Bowers v. Porter, 4
Pick. Rep. 198 j Richardson v. Wh<fetland, 7 Mete. R. 173,
174 j 2 Jarm. on Wills, 73, and note's ; Carter V. Bentall, 2
Beav. Rep. 551; Swift v. Swift, 8 Sim. Rep. 168; Newland
v. Curshman, 2 Moore & S. Rep. 105 ; Ridgeway v. Munke-
thick, D. &,W. Rep. 84; Dalzell v. Welch, 2 Sim. Rep.
320 ; Gale v. Bennett, Amb. Rep. 681 ; Wyth v. Blackman,
JUNE TERM, 1847. 141
Farley v. Gilmer, et al.
2 Ves. Sen. Rep. 191 ; Merrymans v. Merrymans, 5 Munf.
Rep. 440.] Many other citations quite as pertinent might
be added, but these, with those furnished by my brother
GOLDTHWAITE, I think very satisfactorily sustain the judg-
ment of the circuit court.
FARLEY v. GILMER, ET AL.
i: 1 , , J- ';:"<; *n.f-t\
1. A bequest to the wife of real and peifional property, " during her natural
life, and at her decease to be left to my /on, A. S. P," vests immediately in
the son, as an executory devise.
THE plaintiff in error, as administrator of Algernon S.
Pinkston, having represented the estate insolvent, and cita-
tion having issued to the creditors of the estate, they appear-
ed and contested the fact of the insolvency of said estate,
and insisted that the inventory submitted by the administra-
tor was incorrect, and an issue being made up and submitted
to the court, the following facts appeared :
That the plaintiff in error was administrator both of the
estates of Algernon S. Pinkston, and of James Pinkston, his
father. That James Pinkston made his last will and testa-
ment in 1834, as follows :
1. I give and bequeath to my grandson, James B. Pinks-
ton, a slave named Peter.
2. I give and bequeath to my grand-daughter, Susanna
Farley, at the age of eighteen, a slave named Catharine, and
her increase.
3. I give, &c. to my grand-daughter, Eustatia Farley, a
slave named Levin.
142 ALABAMA.
Farley v. Gilmer, et al.
4. To my daughter Thurmutis Farley, the N. E. quarter
of section 29, township 16, range 19; a slave named Tom ;
ailso a note of J. C. Farley, now in the State Bank, for $750,
4ue the first of January, 1832; also $5 1500, as soon as it can
be realized out of my estate, after paying my just debts.
5. I give, &c. to my wife, Gilly Pinkston, the balance of
my property, both real and personal, consisting of lands and
negroes, horses, mules, hogs, cattle, farming utensils, house-
hold and kitchen furniture, tan-yard and stock, during her
natural life, and at her decease, to be left to my son, Alger-
non S. Pinkston.
6. It is my wish, that the land I now own, near Foreman's
mill, be sold to pay my just debts.
After the appointment of executors, is this clause : " I
have settled with my son, Lucien Pinkston, and Jona C.
Farley, on his marriage yjjb my daughter Eustatia. The
will was attested by but twtf witnesses.
It was in proof, that a considerable amount of real and
personal property went into possession of the widow after the
payment of the debts. That Algernon was a minor at the
death of his father, and died before his mother, leaving a
widow, but no children. After the death of the widow of
James Pinkston, the plaintiff in error, as his administrator,
claimed the property she had received under the will of her
husband, as belonging to his estate, and the question before
the court was, whether it was a part of the estate of James
Pinkston, or of his son Algernon, and the court decided that
the personal property did pass under the w.ill of James Pinks-
ton to his son, and vest in him, and that on the death of the
tenant for life, it passed to his personal representative. To
which thaAIaintiff excepted, and which is the matter now
assigned a? IPror.
, for plaintiff in error, contended, that the bequest
was clearly contingent, and that it was the duty of the court
to give effect to it. He cited McLeod v. McDonnell, 6 Ala.
238 ; McLemore v. McLemore, 8 Id. 689 ; Richardson v.
Wheatland, 7 Met. 171; Inglis v. Snugharbor, 3 Peters,
117; Olney v. Hall, 21 Pick. 311; McRae v. Alston, 2 Dess.
368 ; Gregg v. Bethea, 6 Porter, 10 ; Marr v. McCullough, 6
JUNE TERM, 1847. 143
Farley v. Gilraer, et al.
Id. 689 ; Dingley v. Dingley, 5 Mass. 537; Danney v. Allen,
1 Pick. 147; White v. Woodly, 9 Id. 138 ; Emerson v. Cut-
ler, 14 Id. 115 ; Moore v. Smith, 9 Watts, 408 ; Bulsford v.
Kibbel, 3 Vesey, 362; Billingsley v. Miles, 3 Atk. 219;
Luke v. Robinson, 3 Merivale, 363 ; Cripps v. Wolcot, 4
Madd. IX; Pope v. Whitcombe, 3 Russell, 124; Marsh v.
Wheeler, 2 Edwards, 156 ; Harris v. Fly, 7 Paige, 421 ;
Cave v. Cave, 2 Vernon, 508 ; Hanson v. Graham, 6 Vesey,
239; Paterson v. Ellis, 11 Wend. 259.
ELMORE, contra.
ORMOND, J. The question to be determined, upon the
fifth clause of the will, is, whether the interest vested in the
son immediately, at the death of his father, to be enjoyed
after the death of his mother, or, whether his right to the
property depended upon the contingency of his surviving his
mother.
We think it does not admit of reasonable doubt, that it was
intended the estate should vest immediately in the son, as an
executory devise. This is a question of intention, to be
gathered from the language employed in the particular be-
quest, subject to be controlled by other parts of the will,
showing a contrary intention. There is nothing in the lan-
guage employed in this case, indicative of an intention to
postpone the vesting of this legacy, until the death of the
tenant for life. "At her decease, to be left to my son," &c.
is equivalent to saying, at her decease, I give the estate to
my son, or remainder to my son, which would clearly give a
vested interest in the remainder.
The general rule is in favor of the vesting of legacies, and
this rule will prevail, unless a clear intention is shown on the
will, that it shall not vest until the happening of the contin-
gency; and in the language of Lord Eldon, in Gaskell v.
Harman, 11 Vesey, 498, the court* will not conjecture in fa-
vor of an intention, against the general rule. ,
This question generally arises in money bequests, payable
at a future period, and the legacy will vest immediately, or
be contingent, according as the intention is ascertained to be,
' to make an immediate gift, and to postpone the enjoyment
144 ALABAMA.
Jones, Adm'r, v. Swift.
for a particular period, or until the happening of some future
event, and, where there is no gift, distinct from the time of
payment. [Fonnerean v. Fonnerean, 3 Atk. 645 ; Jatfkson
V. Jackson, 1 Vesey, sr. 217; and see the cases collected on
this head in Roper on Legacies, 375. J
But these rules, applicable to money legacies, have no ap-
plication when the same words are applied to a devise of
freehold estate. A devise of freehold estate to A, when he
shall attain twenty-one years, will vest immediately in A,
whether the devise be immediate, or only in remainder
[Doe v. Moore, 14 East, 601; Mackin v. Reynolds, 3 Brod.
& Bing- 121] although the same language, applied to a mo-
ney legacy, would not create a vested interest, until the con-
tingency happened. The intention of the testator here, was
to convey his lands to his son, and although that has failed
from the want of the necessary number of witnesses, it is
nevertheless clearly indicative of his intention.
This intention, so far from being controlled by the residue
of.the will, is strongly confirmed by it. We find him leav-
ing specific legacies to the rest of his children, for whom he
had not previously provided, and no doubt can be entertain-
ed, that he did not intend to die intestate, as to any portion
of his property, although from the defective execution of the
will, it became inoperative to convey the lands. [McLemore
v. McLemore, 8 Ala. 687; McLeod v. McDaniel and wife, 6
Id. 236.]
The decree of the orphans' court must be affirmed.
JONES, ADM'R. v. SWIFT.
1. An agreement between the distributees of an estate, to divide the proper-
ty, and hold it 'subject to the debts of the deceased, gives to each of the
distributees a lien upon the share of the other, for the payment of the debts
JUNE TERM, 1847. 146
Jones, Adm'r, v. Swift.
contemplated ; but will not subject the property so divided, in the hands
of one of the distributees, to sale under a judgment obtained upon a note
executed jointly by all the distributees, to a creditor of the estate for a
debt due by the deceased. Whether the creditors of the deceased might
not have availed themselves of this agreement in equity, or whether the
distributees might not have been sued as executors de son tort quere.
2. An execution cannot be issued against the estate of a deceased debtor,
unless one has previously issued on the same judgment in his life time, and
the fact that there is a plurality of defendants in the judgment, will not
change the rule in respect to one who is dead.
Writ of Error to the Circuit Court of Dallas.
THIS was an action of detinue, to recover a female slave,
named Rachel. The cause was tried by a jury, who rfcturn-
ed a verdict in favor of the defendant, and judgment was
rendered accordingly. From a bill of exceptions sealed at
the plaintiffs instance, it appears that the slave in question
was once the property of Ambrose Gibson, deceased ; after 1
his death, it was agreed between the plaintiif's intestate and
William and Ira Taylor, who were the only distributees of
the estate of Ambrose, that the estate should be divided be-
tween them, and they would hold the same subject to the
debts of the deceased, as well those for which the distribu-
tees had made their joint notes as for other demands. The
slave in question was allotted to the intestate, who took her
into possession. Afterwards, judgments were rendered by a
justice of the peace on notes given by the distributees jointly
for a debt of Ambrose, the deceased; but no executions issu-
ed until after the death of the plaintiff's intestate. Execu-
tions were then issued, and levied on the slave Rachel by the
direction of W. Taylor, and while she was in his possession,
a public sale of her made, at which the defendant became
the purchaser. There was no administration on the estate
of Mrs. Gibson, until after the defendant's purchase all the
property of Wm. Taylor having been previously disposed of
in the payment of the debts of A. Gibson and himself.
The plaintiffs counsel prayed the court to charge the jury,
that if the distributees agreed among themselves, or with the
19
146 ALABAMA.
Jones, Adm'r, v. Swift.
plaintiff in the executions under which Rachel was sold, that
the property as divided should be liable to the old debts of A.
Gibson, deceased there being no lien on the estate at the
death of the plaintiffs intestate, then the levy and sale which
had been shown by the evidence, passed no title to the de-
fendant, in the slave in question. Further, if the plaintiff
in execution had any claim on the slave in question, if there
was no lien at the time of Mrs. Gibson's death, it could only
be enforced in a court of equity. These charges were seve-
rally denied, and the jury instructed, that if the facts to which
the witnesses testified were true, the plaintiff could not re-
cover. To the refusal to charge, and the charge given, the
plaintiff excepted.
fit*; ':
J. A. LODOR, for the plaintiff in error, insisted, that each of
the charges asked should have been given, and that the
charge given was erroneous. He cited Clay's Dig. 209, <$v
42; 12 Mass. Rep. 309; 9 Wend. Rep. 302; 2 Brev. Rep.
307 ; 4 Stew. & P. Rep. 237 ; 3 Ala. Rep. 254 ; 4 Id. 667 ;
TId. 660; 9 Id. 908.]
W. M. LAPSLEY, for the defendant in error, insisted, that
the agreement between the distributees authorized the sale
of the slave in question, though Mrs. Gibson died previous
to the execution being issued. There could be no necessity
for forcing the judgment creditor, or W. Taylor, to go into
equity.
COLLIER, C. J. The judgment under which the slave
in question was sold, is not against the plaintiffs intestate
and her co-distributees as the legal representatives or execu-
tors in their own wrong, of the estate of Ambrose Gibson,
deceased. True, the debt for which it was rendered was
due by the latter, and may have been a charge upon his ex-
ecutors or administrators, to be satisfied from the estate. But
the distributees gave their individual note as a substitute for
the original demand, and on the note thus substituted, the
recovery was had. The case then, in a court of law, stands
in the same predicament as if the judgment had been render-
ed on a note to the consideration of which A. Gibson, de-
JUNE TERM, 1847. 147
Jones, Adm'r, v. Swift.
ceased, was a stranger, and with which his estate had no con-
nection,
In respect to the agreement between the distributees, to
divide that estate, to pay an equal proportion of its debts,
and to hold the property thus distributed subject to their pay-
ment, we cannot think it can legalize the execution against
the intestate's estate. That was an agreement to which the
plaintiff in execution was no party, and of which he could
only have availed himself in a court of equity. Notwith-
standing the agreement between the distributees, they might
perhaps have been charged by _a creditor of the deceased,
upon the ground of their possession, as executors in their
own wrong. But we have seen that the plaintiff in the
judgment before us, did not thus proceed, but sued upon a
personal liability of the distributees, the evidence of which
originated after the death of A. Gibson.
It is perfectly well settled, that an execution cannot be is-
sued against the estate of a deceased debtor, where one had
not previously issued in his lifetime, on the same judgment,
that no lien attaches in virtue of such an execution upon the
personal estate of the deceased debtor in the hands of his ad-
ministrator, and that the levy made under its mandate, will
not prevail against the claim of the administrator. See ca-
ses cited by the plaintiff in error, and 4 Ala. Rep. 735. The
fact that there is a plurality of defendants in the judgment,
will not render a different rule applicable in respect to one
who is dead. The death might be suggested, and execution
issue against the survivors. [9 Ala. R. 335. J
The bill of exceptions states, that W. A. Taylor had pur-
chased of A, Gibson all his property, and given to the latter
his notes in payment after the death of the vendor, the ven-
dee proposed to his co-distributees to surrender the property
thus purchased by him, and allow it to be divided as the pro-
perty of the estate of the deceased, if they would agree that
it " should be still held liable and subject to the debts of the
deceased," and also to the debts of the estate assumed by the
individual notes of the distributees, notwitstanding the dis-
tribution. This proposition was assented to, and the pro-
perty given up. This decision was effectual to invest the
several distributees with the shares respectively allotted to
148 ALABAMA.
Jones, Adm'r, v. Swift.
them, as between themselves and all other persons not hav-
ing demands against the estate. The distributees, as we
have seen, might perhaps have been chargeable as executors
de son tort, upon the ground, that by the delivery of the notes
of W. A. Taylor to him, and his renunciation of his purchase,
the property, at the election of a creditor, might be treated
as assets of the estate. But upon this point, as it is unne-
cessary, we express no opinion.
The agreement certainly gave to each one of the distribu-
tees a lien upon the share of the other for the payment of
the debts contemplated. But it was not competent for either
of them, without some legal warrant to take the part distri-
buted to the other, arid dispose of it for that purpose ; and if
he did not possess such authority, it is difficult to perceive
upon what principle he could impart it to a sheriff, or other
officer. The fieri facias under which the sale was made
was, as we have seen, a mere nullity, as it respects the plain-
tiffs intestate, and was consequently ineffectual to pass her
interest.
Mrs. Gibson's title to the portion of the estate allotted her,
was independent of the control of W. A. Tayler, except for
the purpose provided by the agreement. This did not au-
thorize him, or an officer under void process, to take posses-
sion of, and sell it, although the proceeds were appropriated
in payment of debts with which it was chargeable. It was
competent for the creditor to have subjected the property by
a judgment and execution against Mrs. Gibson's personal re-
presentative so W. A. Taylor, upon payment of the debt,
might have prosecuted his remedy at law against him and
perhaps both of them had a remedy in equity. The fact that
the property was sold by A. Gibson, and after his death, it
was given up and distributed among those entitled to his es-
tate, cannot, we think, vary the case. We need add nothing
more, what has been said will sufficiently indicate that the
circuit court incorrectly ruled the law. Its judgment is
sequently reversed, and the cause remanded.
JUNE TERM, 1847. 149
Pierson v. The State.
PIERSON v. THE STATE.
1. When the bill of exceptions in a criminal case does not state evidence
before the jury to warrant the particular instructions asked and refused,
the legal presumption from the omission is, that there was no such evi-
dence.
2. The common law of this State on the subject of homicide, is the same as
the common law of England, and whenever that law requires the person
assailed to decline the contest or to retreat, before he will be excused in
taking the life of his adversary, our law requires the same.
3. The circumstance that the prisoner, after the killing, wipes the knife with
rhich the fatal wound is inflicted, is not so controlling, or so insignificant,
to warrant the prisoner in calling for the charge that it is not evidence
of murder, or to justify the court in instructing the jury that it was. It is
a fact evincing coolness and self-possession, and as such, proper to be lett
to the jury in connexion with the other circumstances of the case, for
them to determine whether the killing was with malice aforethought, or
on sudden heat and passion.
4. It is not error for the court to refuse to instruct the jury, that they in cap-
ital cases are judges of the law as well as of the fact.
Writ of Error to the Circuit Court of Dallas, allowed in
vacation by one of the Judges of the Supreme Court.
THZ prisoner was indicted for the murder of one Rich,
and tried and convicted at the spring term, 1846.
At the term when the indictment was found, that is, at the
fall term, 1847, and before the grand jury had returned any
bills of indictment, and in the absence of any evidence what-
ever, that the grand jury had acted on any criminal matter,
the prisoner, by his counsel, stated that he was confined in
jail, on a charge for the murder of one Rich, and that his
case would likely be before the grand jury. He thereupon
moved the court to have the grand jury brought into court
and purged in reference to his guilt or innocence ; and that
each grand juror might be asked before they were sworn and
organized, and at the time they were so sworn and organ-
ized, whether he had any fixed opinion as to the guilt or in-
150 ALABAMA.
Pierson v. The State.
nocence of the prisoner, which would bias his finding. The
court overruled the motion, and the prisoner excepted.
At the trial, it was proved that in the course of the day the
deceased and the son-in-law of the prisoner had a rencoun-
ter, not long after which, the prisoner approached the de-
ceased, and urging his fist against the neck of the deceased,
said he could break the neck of a damned Scotchman. The
deceased was then drunk, but made no resistance. This oc-
curred in a grog-shop, the keeper of which interposed, and
prevented any further difficulty. Deceased shortly after-
wards invited the prisoner to drink with him, and they drank
together. The prisoner then lay down on a bench in the
shop for two or three hours, apparently asleep. In the mean
time, the deceased was sitting on the steps of another g^g-
shop, under intoxication, muttering something with occa-
sional oaths. The prisoner was first observed peeping round
the corner of the house, and approaching, said, "damn you
some too." The deceased rose staggering, and said, "uncle
Reub, you must not talk so' ; arid went towards the pris-
oner, who drew his knife. Some one interfering, the pris-
oner said, " let him come on, and I will kill him" or some
such expressions. The deceased had nothing in his hands.
A person interposed and said to the prisoner, it was a shame
to draw a knife on a drunken man. The matter was sus-
pended for a few minutes, and the other persons present
started away. Without knowing exactly who approached
the other, the prisoner and the deceased were shortly seen in
contact, the prisoner having the accused by the collar, when
the latter struck the prisoner twice with his open hand, in or
about the face : when the prisoner made an ineffectual blow
with his knife. On the deceased repeating the slap, (so
called by the witness), the accused made another blow with
his knife, which struck the deceased about the breast, and
caused almost instant death. The proof showed the de-
ceased to have been an inoffensive man, drunk or sober.
The knife was an ordinary pocket knife, the larger blade
sharp-pointed. The whole transaction, the last meeting and
rencounter lasted a very short time say four or five minutes.
Rich was thirty or thirty-five years of age the prisoner an old
man they had always before been very friendly, and had
JUNE TERM, 1847. 151
Pierson v. The State.
drank together two or three times after the meeting in the
morning, and before the prisoner lay down on the bench.
After the evidence was concluded, and a general charge by
the court upon the common law rule upon the subject of
self-defence, and as to what that required to be shown to en-
title or avail the prisoner to that defence, the prisoner, by his
counsel, asked the court to charge the jury
1. That the prisoner, after he had been slapped three
times in the face by Rich, was not bound to retreat before
he killed him.
2. That no man in this country is bound, according to the
English common law, to retreat before he kills.
3. That the prisoner's wiping his knife, after he had kill-
ed Rich, is not evidence that he committed murder.
These were all refused by the court.
4. That the jury are judges of the law, as well as the
facts.
This was refused in the language asked for, but the court
charged the jury they had the right to render a general ver-
dict, and thereby adjudge the law and the facts, and the
judge was thus precluded from granting a new trial on the
belief the jury had mistaken either, that their verdict was fi-
nal as to both law and fact.
The prisoner excepted to the several refusals to charge as
requested, and to the charge as given ; and now assigns the
several rulings of the court as error.
LODOR, for the prisoner, made the following points :
1. The refusal of the court below to charge the jury, that
the prisoner, after he had been slapped three times by Rich r
was not bound to retreat before he killed him.
2. The refusal of the court below to charge the jury, that
no man, in this country, is bound, according to the English
common law, to retreat before he kills another. [The State
v. Caywood, et al., 2 Stew. 360.]
3. The refusal of the court below to charge the jury, that
the prisoner's wiping his knife after he had killed Rich, was
not evidence that he had committed murder.
4. The refusal of the court below to charge the jury, that
the jury are judges of the law as well as the facts, in the Ian-
1 52 ^ ABA MA.
Piereon v. TheTStateT
guage asked for. [The State v. Jones, 5 Ala. 666 ; 4 Black.
Com. 361 ; People v. Crosswell, 3 Johns. Cases, 287 ; Com-
monwealth v. Knapp, 10 Pick. Rep. 477 ; The State v.
Snow, et al. 18 Maine R. 346.]
5. The charge as given by the court below, " that the ju-
ry had a right to render a general verdict, and thereby ad-
judge both the law and the facts, and the judge was thus
precluded from granting a new trial, on the belief that the ju-
ry may have mistaken either, that their verdict was final as
to both law and fact." [State v. Slack. 6 Ala. 676 ; U. S,
v. Fries, 3 Dal. R. 515 ; Commonwealth v. Green, 17 Mass.
515 ; The People v. McKay, 18 John. 212.]
6. The matters of the first and second bills of exceptions.
[The State v. Hughes, 1 Ala. 655 ; People v. Jewett, 3 Wen-
dell, 314; Commonwealth v. Smith, 9 Mass. 107.]
ATTORNEY GENERAL, contra.
GOLDTHWAITE, J.l.The three first of the charges
which the circuit judge refused to give at the instance of the
prisoner, do not seem to have been called for by any evi-
dence before the jury. It will be seen by reference to the
bill of exceptions, there was no proof of any assault by the
prisoner, which justified or excused him (in the legal sense of
these terms) in taking life in self defence, and we must pre-
sume the proper instructions were given as to the effect which
the conduct of the deceased might have had upon the ques-
tion of malice and heat of blood. So too, it will be seen,
there is nothing from which this court can ascertain that the
prisoner, in point of fact, did or did not wipe his knife de-
liberately, or otherwise, after the fatal blow. It may be, that
all these charges were refused on the ground, that no proof
was before the jury to warrant their being asked. And such
in our judgment is the legal presumption arising out of the
omission to state the circumstances of proof, from which the
right to instructions might appear.
2. Lest, however, it should be supposed our opinion was,
that under peculiar circumstances it might be the prisoner's
right to require such charges, we shall briefly state the law
as we understand it. The common law of this State on the
JUNE TERM, 1847. 153
Pierson v. The State._
subject of homicide, is derived from, &d the same as, the
common law of England, and whenever that law requires the
person assailed to decline the combat, or to retreat, 1 before
he will be excused in taking the life of his adversary, our
law requires the same. There is nothing in our institutions
which has abrogated the rule, that no one is excused from
shedding his brother's blood, unless the assault upon him is
such as to produce a well-grounded apprehension of iminent
danger to life or limb.
3. The refusal to charge, that the wiping by the prisoner
of his knife, after the killing, was not evidence that he com-
mitted murder, is not, as we have before said, called for by
the proof, but if it was, we think was not so controlling, or
so insignificant a circumstance as to warrant the prisoner in
calling for the charge, that it was not evidence of murder, or
to justify the court in instructing the jury it was. Doubt-
less it was a fact evincing coolness, and self possession, and as
such properly left to the jury, in connection with the other
circumstances for them to determine, whether the killing
was done with malice aforethought, or upon sudden passion,
induced by the assault, and slapping in the face, or other heat
of blood, lessening the crime to manslaughter.
4. Upon the question, whether, according to the course of
the common law, juries in this State are judges of the law as
well as the fact, we consider it as substantially settled by
what is said by us in The State v. Jones, 5 Ala. 666. There
the point was, whether the jury was properly sworn, to give
a true verdict according to the evidence the prisoner insist-
ing the oath should be, to find a verdict according to law and
evidence. We there considered the court as the proper tribu-
nal to expound the law to the jury, and that the latter had no
other control over questions of law than that arising out of
the right to return a general verdict of not guilty. We con-
sider what is there said as a proper exposition of the law.
The slightest examination will convince every one, that if
the jury, and not the court, are the proper expounders of the
law, there could properly be no revision of a verdict on this
ground, either by the judge trying the cause, by awarding a
new trial, or by an appellate court upon the ground of misdi-
20
164 ALABAMA.
Piereoo v. The State.
rection. If the jury ftre the judges of what is, and what is
not law, why call on us as a court of errors, to revise the ac-
tion of the circuit court upon a point of law. We cannot
better state our opinion upon this question, than by quoting
the opinion of one of our soundest jurists. " The jury, says
Judge Story, are no more judges of the law in a capital, or
otherwise criminal offence, upon the plea of not guilty, than
they are in every civil case tried on the general issue. In,
each of these cases their verdict, when general, is necessarily
compounded of law and of fact, and includes both. In each
case they must necessarily determine the law, as well as the
feet. In each case they have the physical power to disre-
gard the law as laid down by the court. But I deny that in
any case, civil or criminal, they have the moral right to de-
cide the law according to their own notions or pleasure. On
the contrary, I hold it the most sacred constitutional right of
every party accused of a crime, that the jury should respond
as to the facts, and the court as to the law. This is the right
of every citizen, and it is his only protection. If the jury
were at liberty to settle the law for themselves, the effect
would be, not only that the law itself would be most uncer-
tain, from the different views which different juries might
take of it, but in case of error there would be no remedy or
redress by the injured party, for the court would have no
right to review the law as it had been settled by the jury."
[U. States v. Battiste, 2 Sumner, 240.]
We are too apt, in speculating on a subject like this, to con-
sider, that courts will always be prone to settle the law rigid-
ly against crime, or that juries must always lean towards a
lax construction of criminal law, without reflecting that pre-
judice and passion may sometimes operate with fearful vio-
lence in the jury box against the particular individual. Our
law has wisely provided therfore for the protection of all just
rights, that the courts shall expound it, whilst on the other
hand, by confiding to juries the power of returning a general
verdict, it is rendered almost impossible the citizen can ever
be injured by the tyranny or oppression of the judge. Be-
yond this, even in providing for a revision of the cause, up-
on exceptions tendered, and by writ of error, the legislature
has placed its citizens in security from the mistakes which
__ JUNE TERM, 1847. 155
Thompson v. Spinks.
possibly may occur in the rulings of the judge at the trial.
We are satisfied the law was correctly expounded by the cir-
cuit judge.
With respect to the motion of the prisoner to examine in-
dividual grand jurors, as to their opinions of his guilt, or in-
nocency, before swearing them on the panel, the decision in
Clarissa v. The State, 11 Ala. R. 57, is conclusive that it
was properly refused.
Having now examined all the points raised in this court
against the proceeding in the court below, we have only to
add our judgment, that there is no error in the record.
Affirmed.
THOMPSON v. SPINKS.
1. Rent in arrear, or falling due, is merely a debt due from the tenant to
the landlord, for the payment of which he has, under the statute, a lien on
the crop grown on the premises, and when it is removed, either by the
tenant or a stranger, he cannot maintain trespass for its recovery.
2. Where a tenAt delivered certain cotton to one D, with instructions to
take it to Mobile and sell it, and pay the landlord the rent of the land, but
of which arrangement the landlord was ignorant j after which, the de-
fendant, as sheriff, levied upon and sold it, as the property of the tenant :
Held, that though D being as bailee of the cotton, invested with the right
of possession, might have maintained trespass for an injury to it, the land-
lord having neither the possession, or the right to it, could not.
TRESPASS by the defendant, against the plaintiff in error,
sheriff of Sumter.
The defendant pleaded not guilty, and justified under an
execution against one Cooksey.
Upon the trial, it appeared that Cooksey rented certain
land of the plaintiff, in the year 1844, on which he raised the
156 ALABAMA;
Thompson v. Spinks.
cotton specified in the plaintiff's declaration, and that Cook-
sey was indebted to him for the rent. That Cooksey gath-
ered the cotton, and carried it off the rented premises, to the
gin of one Carr, for the, purpose of being ginned. That when
the cotton was carried there, and before the 'levy, Cooksey
delivered the possession of the cotton to one Davis, with in-
structions to take it to Mobile and sell it, and pay plaintiff
the rent of the land, which he agreed to do. This arrange-
ment was made without the knowledge of the plaintiff, and
it did not appear that he knew of it until after the levy. Af-
ter this, and whilst the cotton was unpacked, the sheriff lev-
ied on and sold it under execution against Cooksey.
The defendant asked the court to charge, that if the cot-
ton had been removed by Cooksey from the rented premises,
before it was levied upon, the plaintiff had no such property
therein, as would entitle him to maintain this action ; which
charge the court refused, and charged, that if the cotton was
raised by Cooksey, on land rented from the plaintiff, which
rent was due and unpaid, when the levy was made, the de-
fendant was not authorized to levy thereon, unless the rent
was first tendered or paid, and if he did so, was liable in this
action.
Also, that if Davis were the agent of Cooksey, and not of
plaintiff, and Cooksey merely placed the cotton in possession
of Davis, to be taken to Mobile and sold, and the proceeds
thereof to be applied to the payment of the debt due the
plaintiff for rent, itjdid not give the plaintiff %ny such pro-
perty in the cotton, as would enable him to maintain this
action ; which charge was also refused. The defendant ex-
cepted to the charge given, and the refusals to charge, and
now assigns these matters as error.
BALDWIN, for plaintiff in error, contended
1. That the ruling of the court below could not be sus-
tained by the statute, (Clay's Dig. 210, 45) ; nor on the 3d
section of the statute of rents, (Dig. 506) ; nor on the 4th
section, for they only inhibit the removal of the goods, Sfc.
from premises before payment of rent, and direct sheriff to
pay, out of proceeds of sale, the rent.
2. At common law, it is obvious trespass would not lie on
JUNE TERM, 1847. 157
Thompson v. Spinks.
ihe facts. Plaintiff had neither title nor possession. Nor
does the charge rest on, but is independent of, the fact of any
notice or knowledge of rent due, on the part of the sheriff
defendant ; and of any demand.
It is too trite tp insist that trespass is framed to redress in-
juries to the possession ; and unless this be shown, the ac-
tion cannot be sustained. [1 Chit. PI. 175; 4 Taunt. 547.]
A bargainee cannot maintain this action, although the
statute transfers the possession to the use. [Comyn's Dig.
tit. tresp. b. 3.]
Even if the plaintiff had title to the cotton, he had not
possession ; and title without possession will not do. [Toby
v. Reed, 9 Conn. 217.]
S. W. INGE, contra.
1. The landlord of rented premises has a precedent claim
upon the produce of such premises for the rent money.
[Clay's Dig. 306, 4; Ib. 506, $ 3.]
2. The possession of Davis, as agent, was the possession
of Spinks, the principal. [Frazier, use, &c. v. Thomas, 6
Ala. 169 j Desha, Sheppard & Co. v. Pope & Son, 6 Ala.
690.]
ORMOND, J. The act of 1807, forbids the taking in exe-
cution, goods, or chattels, found upon any rented premises,
and provides that they shall not be removed therefrom, un-
less the party suing out the execution, pay, or tender to the
landlord, one year's rent, and the sheriff is required to levy,
and pay to the plaintiff, as well the money so paid for the
rent, as the execution money. [Clay's Dig. 210, 45.] In
1812, the common law right of distress for rent, was abol-
ished.
In 1821, an act was passed subjecting the crop grown on
any rented land, to the payment of the rent, and requiring
one year's rent to be paid before an execution could be levied
upon the crop. [Id. 506, 3.] In 1843, an act was passed
declaring that "the crop grown on any rented land, shall not
be removed off the premises of any such rented land, by the
tenant, or lessee, or any one else, until the tenant, or lessee,
shall have first paid to the landlord, or lessor, his agent, or at-
158 ALABAMA.
Thompson v. Spinks.
torney, all the rent in arrear." The second section of the
act, gives the landlord process of attachment, when the ten-
ant has removed, or js about to remove the crop, or any part
thereof from the rented premises. [Ib. 5.]
The first of these statutes is borrowed from, and is almost
a literal copy of the 4 Annexe. 14, and the last was probably
suggested by the 11 Geo. 2, c. 19, which gives the landlord
the right to distrain on goods fraudulently removed from the
rented premises ; but neither of these statutes gave the land-
lord any property in the goods of the tenant, either gene-
ral or special, but merely created a lien in his favor.
The policy of this State, as declared by the statutes cited,
is, to abolish the common law right of distress, and to confine
the lien of the landlord to the product of the rented land.
The prohibition against the removal by the tenant, or any
one else, of the crop from any rented land, until all the rent
in arrear is paid, gives him a lien upon it for the payment of
all the rent due, except as against an execution creditor, as
against whom he can have only one year's rent. But this is
a lien merely, and not a right of property in the crop. The
means of enforcing this lien, is provided by the act of 1843,
by attachment against the tenant for the rent. [Hawkins v.
Gill, 6 Ala. 620.] We need not inquire in this case, whether
this lien would be lost by a removal, and sale of the crop,
to one ignorant of the existence of the lien, as no such fact
exists in this case. It is manifest the effect of our statute is,
that rent in arrears, or falling due, is merely a debt due from
the tenant to the landlord, for the payment of which, the
latter has a lien on the crop grown on the premises, and it
results necessarily, that he cannot maintain trespass, for the
recovery of the crop when removed, either by the tenant or a
stranger. To maintain the action of trespass, for injury to a
personal chattel, the plaintiff must establish, either actual
possession, or a right to the possession, from having the gen-
eral property, which would draw to it the right of posses-
sion ; trespass being founded on possession, as trover is on
property in the thing. [Ward v. Macauly, 4 Term, 490 ;
Cooper v. Chitty, 1 Burr. 20 ; Croft v. Allison, 4 B. & Aid.
590 ; Smith v. Milles, 1 Term, 475.]
It is quite obvious, the lien of the plaintiff is not a general
JUNE TERM, 1847. 159
Clannch v. Allen.
property in the crap, nor did the plaintiff have in fact the pos-
session, he cannot therefore maintain trespass. His remedy,
if he did not resort to the statute remedy by attachment, was
an action on the case.
The placing the cotton in the possession of Davis, gave
him such a special property in it, as might have enabled him,
possibly, to maintain trespass for an injury to it, but could
not invest the plaintiff with such a right. Davis was the
bailee of the tenant, and his authority being derived from,
might be revoked by him. It conferred no right in the cot-
ton to the plaintiff, which he did not have before, in virtue
of his lien.
It results from what has been said, that the court erred in
its refusal to charge as requested, and the judgment must be
reversed, and the cause remanded.
CLAUNCH v. ALLEN.
1. The covenants for quiet enjoyment, and never to claim or assert title to
the premises, are real covenants, running with the land, and if broken af-
ter the land has been convened to an assignee, the latter alone has the
right to sue for damages ; \Mcss by the nature and terms of the assign-
ment, the assignor is bound W indemnify the assignee, when it seems, he
may sue in his own name. -,.
2. The words "grant, bargain, sell," are all necessary in a deed, to create the
statute covenant, that the grantor was seized of an indefeasible estate in
fee simple, &c. and for quiet enjoyment,
Writ of Error to the Circuit Court of St. Clair.
THIS was an action of covenant at the suit of the defend-
ant in error, on a deed by which the defendant below con-
veyed to the latter certain lands. The breaches alledged in
the declaration are, that the defendant entered upon the lands
conveyed, and ejected the plaintiff therefrom against his will-
160 ALABAMA.
Claunch v. Allen.
further, that the defendant had no title, either equitable or
legal, to a part of the lands (specially designated), nor has
he acquired any since the execution of the deed ; also, that
defendant, at the date of the deed, had not good right, full
power, and lawful authority to bargain and sell the part of
the land thus particularized. There is a fourth breach, the
same as the first, with the addition that it alledges the de-
fendant, after ejecting the plaintiff, has kept him out of pos-
session, and taken the use, rents and profits of the lands to
himself; by reason whereof the plaintiff has lost, and been
entirely deprived of the lands, and the money paid therefor.
The defendant demurred to each of the breaches, and his
demurrer was overruled to the fourth, and sustained by the
consent of the plaintiff to the preceding. Thereupon the
cause was submitted to a jury, who returned a verdict for the
plaintiff, and judgment was rendered thereon.
From a bill of exceptions sealed at the defendant's instance,
it appears that the deed from the defendant to the plaintiff
contains no express covenants of warranty, seizin, &c. ; that
it is dated on the llth February, 1840. It was proved on
the part of the plaintiff that he took possession of the prem-
ises thus conveyed ; that in 1841, he removed therefrom and
rented the same to one Love, as his tenant for the year 1842,
who continued to occupy the same until about the 1st Feb-
ruary, 1843, when he removed, leaving the premises unoccu-
pied until about the 20th of that month, when the defendant
put one Crane into possession, whoijeontinued to occupy for
three years. On the same day the4Cratie was put into pos-
session, the plaintiff and defendant both came on the prem-
ises the plaintiff protested against Crane's keeping the pos-
session, and thereupon the defendant and Crane agreed to
give up the possession on the next day; but on the next day
the defendant told Crane to continue to hold it ; and the lat-
ter then refused to yield it to the plaintiff. Crane neither
paid nor agreed to pay to the defendant any rent ; one year
they sowed some oats in partnership, which they divided
plaintiff proved the annual value of the premises, and here
rested his case.
The defendant then gave in evidence the exemplification
of a judgment rendered at the term of the county court of
JUNE TERM, 1847. 161
Claunch v. Allen.
Tuscaloosa, holden on the first Monday in February, in fa-
vor of the President, &c. of the Bank of the State of Ala-
bama, against the plaintiff below, as the drawer and acceptor
of a bill of exchange, and others as its indorsers. On the 20th
April, 1840, a writ of fieri facias issued on this judgment,
which was placed in the hands of the sheriff of St. Glair on
the 2d July thereafter, and by him returned unsatisfied for
want of bidders. An alias fi. fa. was issued on the 10th
August, 1840. The defendant next offered a deed bearing
date the 15th October, 1841, executed by the sheriff of St.
Olair, by his deputy, which recites the levy on, and sale by
him of the lands in question, on the first Monday in Janu-
aryj 1841, under a fieri facias issued on a judgment of the
county court of Tuscaloosa, corresponding in amount, dates
and parties with that above described. It is recited in the
deed that the plaintiff in execution became the purchaser for
the sum of $435 80 ; and thereupon the conveyance is made
to the President and Directors of the Bank, &c. This deed
was acknowledged by the deputy sheriff, and recorded by
the clerk of the county court of St. Glair on the 29th Novem-
. her, 1841.
The defendant also adduced the fieri facias described in
the deed by the sheriff, and proved that the subscribing wit-
ness thereto was authorized to receive the deed for the gran-
tees. It was further shown, that one Morris, who assumed
to act as the agent of the bank, rented the lands in question
to one G. W. Allen in 1842 for the sum of $40, and took his
note for that sum, payable to the President, Directors, &c.
G. W. A. took and retained possession under this contract
for a few weeks, and wa% then forcibly ejected by the plain-
tiff in this action.
The evidence being closed, the court excluded the exem-
plification of the judgment from the county court of Tusca-
loosa, the fieri facias and sheriffs deed consequent there-
upon. The defendant then prayed the court to charge the
jury, that, if the evidence be true (which is all above recited),
then the plaintiff is not entitled to recover : Further, that in
this action the plaintiff could not recover, if he was not in
the actual possession of the premises, or any part thereof at
21
162_ ALABAMA.
Claunchv. Allen.
the time the defendant put Crane in possession. These se~
veral charges were refused ; and the defendant excepted, as
well to the rejection of the record, as to the refusal to charge
as prayed.
J. T. MORGAN, for the plaintiff in error. The record was
improperly excluded when connected with the fieri facias
and sheriff's deed, it shows that the title to the lands, and all
interest which the plaintiff acquired by his purchase from the
defendant was divested. [2 Greeril. Ev. - ; 6 Ala. Rep.
390.] His title being gone, the plaintiff could not maintain
an action for the breach of covenant. After the sale under
the fi. /a., the plaintiff had nothing but a bare possession,
and when he abandoned that, the defendant or any one else
might enter and occupy against him.
L. E. PARSONS, for the defendant in error.
COLLIER, C. J. The deed which the plaintiff has set
out in his declaration contains none of the usual express cov-
enants; and the only breach alledged in the declaration,
upon which an issue was tried, is that which affirms that the
defendant entered upon the lands conveyed, and ejected the
plaintiff therefrom against his will ; and after ejecting, has
kept him out of possession and taken the use, rents and pro-
fits to himself. This breach evidently presupposes a cove-
nant for quiet enjoyment, to prove a breach of which it is or-
dinarily necessary to give -evidence of an entry upon the
grantee, or of expulsion from, or some actual disturbance in
the possession ; and this, too, by reason of some adverse right
existing at the time- of making the covenant, and not of one
subsequently acquired. But it is said, it will not suffice to
prove a demand of possession, by one having title ; nor a re-
covery in ejectment ; or in trespass ; unless there has also
been an actual ouster. If, however, the grantor himself en-
ters tortiously, claiming title, it is a breach. [2 Sugd. Vend.
512, 10th ed. ; Sedgwick v. Hollenback, 7 Johns. Rep. 376.]
But not if the entry was without claim of title. [Seddon v.
Senote, 13 East Rep. 72; Penn v. Glover, Cro. Eliz. 421.]
The declaration does not alledge that the entry of the de-
JUNE TERM, 1847. 163
Claunch v. Allen.
fendant and ouster of the plaintiff was under a claim of title,
and it may well be questioned from the authorities cited, if
he entered as a mere trespasser without any pretence of right,
the plaintiff could maintain the present form of action ; but
would have to resort to the action of trespass.
However this may be, if the plaintiff had sold and con-
veyed the interest which he acquired under the deed from
the defendant, or it was levied on and sold under an execu-
tion against his estate, he cannot maintain an action for a
breach subsequently occurring. A covenant for quiet enjoy-
ment, as well as never to claim or assert title to the premises,
are said to be real covenants, running with the land. When
either of these covenants, or others coming within the same
category, are broken after the land has been conveyed to the
assignee, the general rule is, that he alone has the right to
sue for the damages ; but if by the nature and terms of the
assignment, the assignor is bound to indemnify the assignee
against the breach of such covenants, it seems that the as-
signor may sue in his own name. [2 Greenl. Ev. 195, 240.
See also Griffin v. Fairbrother, 1 Fairf. Rep. 81-91; Bick-
ford v. Page, 2 Mass. Rep. 460 ; Kane v. Sanger, 14 Johns.
Rep. 89; Niles v. Sawtel, 7 Mass. Rep. 444; Wyman v.
Ballard, 12 Id. 306; Sprague v. Baker, 17 Id. 586; King v.
Kerr, 5 Ham. Rep. 156; Clark v. Redman, 1 Blackf. Rep.
381; Mitchell v. Warner, 5 Conn. Rep. 497; Withy v. Mum-
ford, 5 Cow. Rep. 137; De Chamont v. Forsythe, 2 Pennsyl.
Rep. 507; Williams v. Beeman, 2 Dev. Rep. 483 ; Markland
v. Crump, 1 Dev. & Bat. Rep. 94 ; Astor v. Miller, 2 Paige's
Rep. 68; Suydam v. Jones, 10 Wend. Rep. 180.] And an
assignee under a sheriffls sajfeas well as under a mortgage,
comes within the rule we TOve stated. [McCrady v. Bris-
bane, 1 Nott & McC. x Rep. 104; Tufts v. Adams, 8 Pick.
Rep. 547.] If these citations lay down the law correctly,
the plaintiff cannot maintain an action for the supposed
breach of covenant, although there were no other objection
to its maintenance, than the assignment of his title by the
sale and conveyance by the sheriff.
If the possession was left vacant by the plaintiff, or those
holding under him, an entry upon it after the sale by the
sheriff, would not be a trespass against the plaintiff; because,
J64 ALABAMA.
Claunch v. Allen.
as he had parted with the title, he could not be deemed to
have the constructive possession, which, *where there is no
one in possession, or claiming adversely, will be referred to
the title.
But if all these objections to the plaintiff's right to recov-
er were out of the way, there is perhaps another alike fatal.
We have said that the deed contains no such express cove-
nant, and the question is, can a covenant be implied. The
20th section of the act of 1803, " respecting conveyances,"
[Clay's Dig. 156,] enacts, that in all deeds to be recorded in
pursuance thereof, whereby an estate of inheritance in fee
simple, shall hereafter be limited to the grantee or his heirs,
the words " grant, bargain, and sell," shall be adjudged an
express covenant to the grantee, his heirs and assigns, &c.,
to wit : that the grantor was seized of an indefeasible estate
in fee simple, freed from incumbrances done or suffered from
the grantor (except the rents and services that may be reserv-
ed,) as also for quiet enjoyment against the grantor his heirs
and assigns ; unless limited in express words contained in
such deed : and the grantee, his heirs, executors, adminis-
trators and assigns, may in any action assign breaches, as if
such covenants were expressly inserted. [See Roebuck v.
Dupuy,*2 Ala. Rep. 535; Stewart v. Anderson and another,
10 Ala. R. 504.J
In Gee v. Pharr, 5 Ala. R. 587, it was decided, that the
words, "grant, bargain, sell," must all be used in a deed, so
as to create a covenant against incumbrances, &c. within
the act cited ; that the omission of either of these words
would prevent the deed from thus operating. There the
operative terms were, " bargJfed,fptild, released, aliened,
and confirmed," and it was held that they did not make the
statute covenant. The deed before us, uses the terms, " hath
bargained and sold, and by these presents doth bargain and
sell." If the case cited is to be recognized as authority, it
is clear that the deed does not come within the act ; that it
contains no covenant to which the breach applies, and that
the demurrer should have been sustained, not only to the
three last, but to the fourth breach also- [See Frost v. Ray-
JUNE TERM, 1847. 165
Falkner v. Jones and Leith.
mond, 2 Caine's Rep. 188 ; Sweitzmger v. Weaver, 1 Rawle's
Rep. 377.]
The error in the rulings of the circuit court is so apparent
from what has been said, that it is needless to add more
than to declare, that the judgment is reversed, and the cause
remanded.
V
FALKNER v. JONES AKD LEITH.
L Under the statute which allows landlords to defend ejectment suits, it is
not necessary the technical relation of landlord and tenant should exist.
The act extends to all persons claiming title consistently with the posses-
session of the occupier.
2. Any one having the title under which the tenant in possession holds, and
who is entitled to an immediate right of entry against him, must be allow-
ed to defend as his landlord, although the ejectment suit is by the purcha-
ser of the tenant's title at a sheriff's sale.
3. The assignment of a land certificate, made by the original purchaser, un-
der his hand and seal, operates under our statute as a conveyance of all
the assignor's interest in the land, and the assignee has a superior title at
law, to a purchaser at a sheriff's sale under a judgment rendered subse-
quent to the assignment
4. Such an assignment is not within the registration acts, and does not be-
come inoperative against' the sheriff's vendee for the omission to regis-
ter it
5. An assignment of a certificate riot under seal, does not pass the legal ti-
tle, and is not proper evidence in an ejectment suit by a sheriff's vendee.
The improper admission of merely cumulative evidence is sufficient to re-
verse a judgment
Writ of Error to the Circuit Court of Cherokee.
TRESPASS to try titles to a certain tract of land, commenc-
ed by Falkner against Leith.
Jones was permitted by the court to defend as landlord of
166 ALABAMA.
Falkner v. Jones and Leith.
Leith, to which the pFaintiff objected 1. Because there was
no proof of this relation. 2. Because the plaintiff was the
purchaser of Leith's title at a sheriff's sale. Both grounds
for the objection were admitted to exist, but notwithstanding
Jones was admitted to defend.
At the trial, the plaintiff claimed as the purchaser at she-
riffs sale, on the 6th March, 1843, under a judgment obtain-
ed in the circuit court of Cherokee, against Leith, on the
llth October, 1842. He proved that Leith entered the land
previous to the judgment, and was in possession from 1833
until February, 1844, and had made valuable improvements.
The suit was commenced 20th September, 1843.
The defendants exhibited and proved a title as follows :
1. The receipt of the receiver of the proper land office, for
the land in question, issued to Leith the 4th October, 1842,
on which was indorsed an assignment, under the hand and
seal of Leith, of the same date, in these words: " For value
received, I assign the within certificate to Moses Jones, and
hereby authorize the patent to the within described land to
issue in his name. Witness my hand and seal, &c. Trans-
ferred in due form by James Leith to Moses Jones, 4th Oc-
tober, 1842. J. T. BRADFORD, Register."
2. An assignment also indorsed on the same certificate pur-
porting to convey all Leith's fight, title and claim to the par-
ticular tract of land. This is of the same date as the other,
but is not under the seal of Leith, although signed by him,
and being acknowledged before the same officer.
3. A copy of the last named transfer, under the certificate,
of the commissioner of the general land office, and under the
seal of that bureau, stating it as* a copy of the original on file
in that office. This was offered in evidence without any
proof of its execution, or of the loss or absence of the origi-
nal, and without any preliminary proof whatever.
4. A patent from the United States to Jones, as the as-
signee of Leith, bearing date 1 May, 1845. This was offer-
ed to show, that the inchoate, legal title had been per-
fetced.
The plaintiff objected to the introduction of each part of
this evidence, but the court allowed it.
JUNE TERM, 1847. 167
Falkner v. Jones and Leith.
One of the plaintiff's witnesses was asked by the defend-
ants, if Jones had not paid off the judgment under which the
land was sold. The plaintiff objected to this question, but
the court allowed it to be answered, and the witness said the
balance not produced by the sale of the land was paid by
Jones, under a judgment obtained by the plaintiff under gar-
nishee process, on the 10th of April, 1845. This was all the
evidence.
The plaintiff asked the court to exclude from the jury each
paper given in evidence by the defendants. This was re-
fused.
The plaintiff asked the court to charge the jury
1. That if they believed all the evidence, they should find
for the plaintiff.
2. That Jones being permitted to defend as the landlord
of Leith, can set up no defence in this action which Leith
could not ; and that Leith was estopped from denying the
title of plaintiff in this suit.
3. That as it is not allowable for a defendant in execution
to defeat the purchaser at the execution sale, by showing he
held under another, so his landlord when let in to defend,
can show no title or right inconsistent with the possession
sought to be recovered in this case.
4. That if they believed the defendant, Leith, was in pos-
session at the time of the rendition of the judgment, and so
remained until after the sheriff's sale, then the plaintiff is en-
titled to recover, although the legal title to the land was in
Jones at the time of the judgment.
5. That if the plaintiff purchased the land at sheriff's sale,
without notice of Jones' claim of title, the assignment of the
receiver's receipt was void as against the plaintiff, unless it
was recorded in the office of the clerk of the county court of
the proper county.
6. That the assignment of the receiver's receipt as first a-
bove stated, did not convey the legal interest to the land.
All these charges were refused, and the plaintiff excepted
to all the several rulings of the court against him.
The assignment of errors opens all the questions raised on
the record.
168 ALABAMA.
Falkner v. Jones an d Leith.
S. F. RICE, for the plaintiff in error.
PARSONS, contra.
GOLDTHWAITE, J. 1. The question at the outset of
this case is, whether Jones was properly allowed to defend
as landlord it being admitted he did not stand in that tech-
nical relation to the other defendant and the plaintiff claim-
ing as a purchaser at sheriff's sale, of whatever interest Leith
had in the premises. The plaintiff insists, the defendant un-
der these circumstances is estopped from setting up any title
whatever. We shall first consider whether the technical re-
lation of landlord and tenant mult exist to let one claiming
the title into the defence. Our statute of 1836, [Dig. 321, <>
49,] is very general in its terms, and seems to have been in-
tended to introduce the practice of the English courts in this
respect. The act of parliament of the 11 Geo. 2, ch. 29.
uses the term landlord in the same sense as onr own statute,
and the decisions under it are, that it extends not only to
landlords properly so called, but also to all persons claiming
title to the premises, consistently with the possession of the
occupier, though no acts of ownership have been previously
exercised by them. The question in all cases is, whether the
party applying to defend as landlord, be himself interested in
the event of the suit, or whether he be merely set in motion
for the purposes of some other person. [Steph. N. P. 1443.]
It is evident from this, that the nature of the title which the
plaintiff claims, must to some extent influence the action of
the court in admitting a party to defend as landlord ; for in-
stance, if in this case there was an unexpired tenancy in
Leith, at the time of the application, and the plaintiff was
willing to concede the ultimate title in Jones, the latter would
have no interest to defend the suit.
2. But assuming the legal title to the land was in Jones
by the assignment of the certificate, or that he claimed it to
be so, then it is apparent Leith stood to him, or was conced-
ed by those parties to stand to him, in the relation of a ten-
ant at will, whose estate was determinable at pleasure,
i In this relation, if our statute was out of the way, it is
scarcely possible any court would allow a plaintiff in an eject-
ment suit, to obtain possession under the pretence that there
JUNE TERM, 1847. 169
Falkner v. Jones and Leith.
was an estate in the tenant, especially if before the execu-
tion of a habere facias, the party actually determined the es-
tate by an entry or eviction. It is a general rule, that the
judgment in an ejectment suit, binds only those who are par-
ties and privies to it, and the decisions are numerous where
courts have interposed to set aside writs of possession where
one was disturbed whose possession was distinct from that of
the parties to the proceedings. [Howard v. Kennedy's Ex.
4 Ala. Rep. 592, and cases there cited.] It cannot be con-
tended at this day, that a suit against the tenant operates so
as to deprive the landlord of his right of entry, on the deter-
mination of the tenancy, arid there certainly is no reason to
allow a plaintiff in ejectment to recover a mere naked posses-
sion, which he cannot legally hold for an hour, especially
against one whose title he is estopped from disputing. It is
very possible, the object of the English act of parliament, as
well as our own statute, was intended to prevent this precise
mischief. It is true, the decisions in the New York courts
assert the rule broadly, that a defendant in execution cannot
set up any title as against the purchaser at the sheriff's sale,
but in this State the rule must be received with considerable
qualification. The leading case of Jackson v. Graham, 3
Caines, 188, is not to be distinguished in its facts from this,
but it was probably decided before the statute was passed in
that State, allowing landlords ,to defend, and in the opinion
it is expressly conceded, the vendee of the defendant in exe-
cution, holding his conveyance anterior to the judgment,
could enter uptfn and have his action against the purchaser at
the sheriff's sale, the next hour after he came into possession,
and that the latter would be estopped to deny his title. If
this be a correct exposition of the law, there would be two
useless suits first of the purchaser at sheriff's sale against
the debtor then of the debtor's vendee ; and only in
the third ejectment suit would there be any investigation
of the title as between the purchaser at the sheriff's sale and
the previous vendee of the debtor. Certainly snch circuity
of action should be avoided if possible. The rule may be
true in the absence of the statute, that the defendant in exe-
cution cannot be allowed to defend against the sheriff's ven-
22
170 ALABAMA.
Falkner v. Jones and Leith.
dee, as was held in A vent v. Read, 2 Porter, 480, but with the
statute, we think any one having the title under which the
tenant in possession holds the occupation, and who is entitled
to an immediate right of entry against him, must be allowed
to defend as landlord. The case of Davis v. McKinuey, 5
Ala. Rep. 719, and Thompson v. Ives, at the present term,
are in perfect harmony with the course of practice under the
English statute, and sustain the conclusion now attained.
3. Having ascertained there was no error in allowing Jones
to defend the suit, we shall inquire whether his title is pre-
ferable to that acquired by the plaintiff tinder the sheriff's
sale. In doing this, we need not examine his title, as it is
considered to be the settled law in this State, that the title
acquired by the entry of lands, although incomplete, is yet
a legal title, and as such subject to sale under a judgment
at law, Goodlet v. Smithson, 5 Porter, 245 : Rosser v. Brad-
ford, 9 Ib. 354.] It will be seen that both the assignments
of the certificate were executed some days before the lien of
the judgment was operative, and therefore the only question
on the merits is, whether these, or either of them, operated
as a legal conveyance of the title. The only difference be-
tween the two is, that one has a seal, and the other has none,
and the one with a seal transfers the certificate, whilst the
other purports to convey the land. We have a statute, pass-
ed in 1812, which provides, " that all certificates issued in pur-
suance of any act of Congress, by any of the boards of com-
missioners, register of a land office, or any other person duly
authorized to issue such certificate, upon any warrant of sur-
vey, or to any donation or pre-emption claimant for any
lands in this State, shall be taken and received as vesting a
full, complete and legal title in the person in whose favor the
said certificate is granted to the lands therein mentioned, and
his, or her, or their assigns, so far as to enable the holder of
such certificate to maintain any action thereon, and the same
shall be received in evidence in any court in this State.
[Dig. 341, $ 157.] In Bullock v. Wilson, 2 Porter, 436, this
statute was considered as covering a receiver's certificate of
the entry of lands, but no question was raised as to the mode
of assignment. In Masters v. Eastes, 3 Porter, 368, it was
JUNE TERM, 1847. 171
Falkner v. Jones and Leith.
held, the assignment ot a certificate not under seal, was in-
sufficient to protect the assignee against a suit by the assign-
or, to whom the patent subsequently issued, though it was
conceded a deed conveying the land would be an effectual
defence. In Ansley v. Nolan, 6 Porter, 379, we considered
an unsealed transfer of the land, written on the certificate,
as insufficient to convey the legal title so as to enable the
transferee to sustain an action for the land. Conceding that
these decisions establish that the assignee of the land, or of
the certificate, must be one constituted by a sealed instru-
ment, it is evident one of the transfers here is of that dignity,
and the only question is, whether the assignment of the cer-
tificate is the transfer of the land named in it. Whatever
might be the conclusion, if the statute just quoted was out
of the way, we think the construction of that is, that the ti-
tle to the land passes by an assignment under seal of the cer-
tificate. It will be seen it is the holder of the certificate who
is invested with the capacity to maintain a suit, and although
upon common law principles, the conveyance of the land
might produce the same result, yet we think it impossible to
avoid the conclusion, that the legislature intended by this en-
actment to make an assignment of the certificate equivalent to
a conveyance of the lands. It is also to be observed in this
connection, that the practice of the land office, from a very
early date, has been, to recognize assignments even less tech-
nical than this court has held to be valid, and patents daily
issue to assignees of the certificate, under the hand of the
original purchaser. [See Land Laws, part 2, 307 ; Act of
Con. 10 May, 1800, <> 7 ; Act of 23 Jan. 1832, Land Laws,
P. 1, 492.] We come to the conclusion therefore, that the
transfer of the certificate, under the seal of the assignor, was
a valid conveyance of the assignor's interest in the land.
4. The remaining question to be determined is, whether
this assignment is inoperative for the omission to register it.
It is in view of this question, that we have omitted to place
this decision on the ground that the assignment, independent of
the statute we have referred to, was operative as a conveyance.
If regarded merely as a conveyance of the land according to
common law principles, it might be difficult to say it was
172 ALABAMA.
Falkner v. Jones and Leith.
not within the registration laws ; but looking to the statute
and the acts of Congress, which evidently point to the as-
signment of the certificate, it is impossible to imagine, it was
intended these inchoate titles, or their assignments other than
by the ordinary modes of conveyance should be registered.
The point is certainly not without difficulty, but with the prac-
tice of the land office, known and acted on for a great length of
time, to grant the patent to the assignee, we think the law is,
that the assignment of the land office certificate, by a valid
instrument, will prevent the title for the land from passing
to a subsequent purchaser, under a sheriffs sale. We limit
our opinion to the precise case before us, because it is impos-
sible to examine these questions without being aware of the
necessity for the utmost caution.
5. Without particularly examing all the other questions
raised by the bill of exceptions, it is only important to say,
that the other evidence of title was improperly admitted.
We speak now with reference to the conveyance of the land
which is without seal. This at least only showed an equi-
table title in the assignee, which did not enable him to de-
fend this suit at law. Although this, and possibly too, all
the other evidence for the defendant was entirely unnecessa-
ry, yet as it was improperly admitted, the judgment must
be reversed. We understand the rule to be, that the admis-
sion of testimony irregularly, although it is merely cumu-
lative, is sufficient to reverse a judgment.
Reversed and remanded.
JUNE TERM, 1847. 173
Carroll & Beall v. The Mayor and Aldermen of the City of Tuskaloosa.
CARROLL & BEALL v. THE MAYOR AND ALDER-
MEN OF TUSKALOOSA.
1. An authority conferred on the corporation, to collect taxes on " auction-
eers, transient dealers, and pedlars," will justify it in imposing a tax ei-
ther upon the amount of the sales of such persons, or in the form of a li-
cense to the auctioneer.
2. A party who complains that too high a tax has been assessed against him
as an auctioneer, and removes the case by certiorari to the circuit court
is there entitled, if he demands it, to a trial upon the merits, and to show
that too high a tax has been assessed ; though in cases of ordinary taxa-
tion, it seems redress must be sought from the mayor and aldermen,
and that their decision is final.
Error to the Circuit Court of Tuskaloosa.
THE mayor of the city of Tuskaloosa, issued an execution
against the plaintiffs in error, directed to the marshal of the
city, commanding him to make the sum of $104 22, the
amount due by them on goods sold at auction, and commis-
sion, in that city, as given in by them or their agent, on oath,
for the year next preceding the 1st March, 1845, to the city
of Tuskaloosa. This execution was superseded on the pe-
tition of the plaintiffs in error, alledging that the tax assessed
against them, was illegal, and a certiorari was awarded to
the mayor.
Upon the trial of the cause, as appears from a bill of ex-
ceptions, the only record, sent upas a return to the certiorari,
was a book purporting to be written, and made out by James
Hogan, and others, during the month of April, 1845, as as-
sessors of taxes for the city of Tuskaloosa, for the year end-
ing April, 1845 ; in which was the following entry : " Car-
roll & Beall, auction sales $2069 27, on commission $73 19 15,
and the execution issued by the mayor and aldermen, upon
which was endorsed a levy by the marshall ; whereupon the
defendants moved the court to quash the execution, and ren-
der the supersedeas perpetual ; which motion the court re-
174 ALABAMA.
Carroll & Beall v. The Mayor and Aldermen of the City of Tuskaloosa.
fused ; but on motion of the plaintiff dismissed the certiorari,
although the defendant urged a trial on the merits.
The charter, bye-laws, and ordinances of the corporation
were made a part of the case by the petition.
The assignments of error present for revision, all the mat-
ters presented on the bill of exceptions.
PECK and WHITFIELD, for the plaintiff in error.
PORTER, for defendant in error. 1. The remedy by appeal
is specifically given to parties aggrieved by the statute char-
tering the city of Tuscaloosa. [Acts of 1835-6, sec. 9.] When
a particular remedy is given by statute, that must be pursued.
[Russell v. Peirce, 7 Porter, 276 ; Miller v. Goffe, 9 ib. 265.]
2. A writ of certiorari is not allowable in such a case as
this. [Clay's Dig. 294, sec. 29 ; Bobo & Johnson v. Thomp-
son, 3 Stew. & Port. 385 ; Whelock v. Wright, 4 ib. 163 ;
John v. The State, 1 Ala. R. 95.]
3. As j to the powers of the corporation, seethe charter,
pamphlet, p. 7, sec. 9, latter part ; p. 8, sec. 11, showing his
remedy in case assessment is too high : ib. p. 10, sec. 4, 5 ;
ib. p. 18, sec. 2, 3. The charter says expressly, that if any
assessment is too high, the aggrieved party shall complain to
the mayor and aldermen, whose decision shall be final. (See
p. 8, sec. 11.)
ORMOND, J. By the act incorporating the city of Tus-
kaloosa, power was given to the corporation to levy and col-
lect a tax on real estate, not exceeding twenty-five cents on
the one hundred dollars worth, where the lots are improved,
and not exceeding one dollar on the hundred dollars worth,
where the lots are unimproved ; fifty cents on the one hun-
dred dollars worth of personal property kept within the city,
and a poll tax not exceeding the State poll tax.
By an amendment of the charter, power was given to the
city " to levy and collect taxes upon auctioneers, transient
dealers, and pedlars."
The corporation has passed the following bye-laws, bear-
ing upon this subject, and as the levy of a tax " on all goods,
wares, and merchandize, not belonging to citizens of this
JUNE TERM, 1847. 175
Carroll & Beall v. The Mayor and Aldermen of the City of Tuskaloosa.
corporation, sold at auction, one and a half per cent, on the
amount of sales, which sum shall be reserved from the pro-
ceeds of the sales by the auctioneer, and by him paid to the
city collector, and it shall be his duty to file with the city as-
sessor, the affidavit of the persons at whose instance the sale
was made, shewing whether the said sales were made for the
benefit of citizens, or other persons.
On all goods, wares, and merchandize, sold in this city, on
commission, for the benefit of persons not residing in this ci-
ty, one pd*r cent, on the amount of the sales." Other por-
tions of the bye-laws will be hereafter noticed.
It is contended by the counsel for .the plaintiffs in error,
that the power to levy and- collect a tax upon auctioneers,
does not authorize the imposition of a tax upon the amount
of their sales, but can only be exercised by a tax, or license,
upon the privilege of selling by auction. The power conferr-
ed, is to levy and collect taxes, on "auctioneers, transient deal-
ers, and pedlars," and in our judgment it is the same thing,
whether the tax is imposed in the form of a license to the
auctioneer, or upon the sales actually made by him. In either
case it is a tax upon the sale, as the auctioneer must be re-
funded the amount paid for his license, and this must of ne-
cessity come out of the proceeds of his sales. It is the same
in its operation, as an impost, or duty upon the importation
of goods, which is as effectually a tax upon the consumer, as
if it was levied by an excise on the goods in their hands.
The objection that this form of imposing the tax, may in
its effect amount to a prohibition, and so interfere with the
subjects of State taxation, is answered in the same way.
Such might also be the effect of the imposition of the tax in
the form of a license, which might be so high as to prevent
all sales by auction within the limits of the city. Whatever
weight the argument might be entitled to, if the power had
not been granted to the city to levy a tax on auctioneers, it
is entitled to none, the power having been expressly confer-
red on the corporation.
The remaining question, that the defendants should have
been permitted to show, that the tax was improperly im-
posed, and that the goods sold on commission, did not belong
to non-residents, but to resident citizens, and therefore ex-
176 ALABAMA.
Carroll 4~Beallv] The Mayor and Aldermen o
empt from taxation by the ordinance, involves the considera-
tion of the question, of what is brought up by the writ of
certiorari, and the mode of proceeding in the higher court.
There is an inherent difficulty in reviewing the judgments,
if they maybe so called, by which a tax is levied, as all the
proceedings must be ex parte, and extra judicial, although if
payment of the sum assessed is refused, it may be enforced
by a sale of property; and in the absence of any law provid-
ing for a revision of the facts, it would seem that the trial by
certiorari could only be upon the record, and that nothing
extrinsic could be shown.
The llth section of the charter provides for the assessment
of taxes, and that any person aggrieved by the assessment,
may complain to the Mayor and Aldermen, who shall con-
sider, and reduce the assessment, if in their opinion it is too
high, "and their decision on the subject shall be final."
This evidently applies to the assessment of the value of tax-
able property, which may be made by assessors appointed by
the corporation. In such cases, it is clear, resort for redress
must be had by application to the Mayor and Aldermen, and
that their decision is conclusive upon the rights of the appli-
cant.
The tax complained of in this case, is of a different char-
acter. It is not an assessment of the value of property sub-
ject to taxation by assessors, but is a tax of one per centum,
imposed by an ordinance of the corporation, on all goods,
wares and merchandize sold in the city on commission, for
the benefit of persons not residing in the city. The mode of
ascertaining the amount of goods thus sold on commission,
appears to be by application to the party hjmself, as it is re-
cited in the execution issued to the marshal, that the sum
demanded as the tax, was due on goods sold at auction, and
on commission by them as given in by them, or their agent
on oath. No citation or demand appears to have been made
previous to the issuance of the execution, and no opportunity
has been afforded, so far as we can learn from the record, for
the correction of this matter, if the tax on sales by commis-
sion has been improperly levied.
The proviso to the 9th section of the charter, declares that
nothing herein contained shall be so construed as to prevent
JUNE TERM, 1847. 177
Hodges v. Hoole.
appeals to the circuit and county courts, in the same manner,
and under the same rules and regulations, as appeals are ta-
ken from justices of the peace. This proviso is found in the
section conferring the general powers of the corporation :
giving it authority to levy and collect taxes, impose fines, and
provide for the general police of the city. A fair construction
of this clause, brings it, we think, within the purview of this
case. If there had been a formal judgment, or a trial and
decision of the facts disputed in this case, doubtless an appeal
could have been taken from the judgment of the Mayor.
The certiorari is a mere substitute for an appeal, and when
allowed, presents for revision the same questions which
would have arisen upon an appeal. It follows, therefore, that
the court erred in refusing a trial upon the merits of the case,
and its judgment must be reversed, and the cause remanded.
HODGES v. HOOLE.
1. A trustee of a married woman, to preserve her separate estate, is not respon-
sible for medical services rendered to slaves, constituting her separate es-
tate, they not being in his possession, or the services rendered at his re-
quest, and he never having promised to pay the value of the services.
Writ of Error to the Circuit Court of Barbour.
THIS was a proceeding instituted before a justice of the
peace, and judgment being rendered against the plaintiff in
error, Hodges, appealed to the circuit court, and gave bond
with J. Buford as his surety. The case being removed to
the latter court, the plaintiffs below declared against Hodges
in indcbitatus assumpsit for forty-five dollars ; thereupon an
issue was submitted to a jury, who returned a verdict in favor
23
178 ALABAMA.
Hodges v. Hoole.
of the plaintiffs for forty-five dollars, and judgment was ren-
dered thereon against the defendant and his surety for the ap-
peal.
A bill of exceptions was sealed at the instance of Hodges,
from which it appears that he was a trustee of Martha R. W.
Booth, a feme covert, and that the plaintiffs had rendered me-
dical services to the amount of $45 to slaves, part of the se-
parate estate of Mrs. Booth, at her request. This was the
only cause of action proved. The court charged the jury,
that under the statute of this State requiring appeals from
justices of the peace to be tried according to justice and equi-
ty, the plaintiffs were entitled to recover.
J. BUFORD, for the plaintiffs in error, insisted that a court
of law could not entertain a suit against the trustee in re-
spect to the estate of his cestui que trust. It cannot there
appear what is the state of his account, or that his liability
does not exceed the trust estate in his hands. De Bard v.
Smith, is unlike the present.
CATO, for the defendants in error. The amount in contro-
versy being less than fifty dollars, a court of chancery cannot
entertain jurisdiction, unless justice most obviously demands
it. [3 Stew. & P. Rep. 284; 3 Ala. Rep. 756.] In direct-
ing that the trial of icases originating before justices of the
peace should be governed by liberal views of justice and
equity, the object was to save expense to litigants, and in
cases so unimportant, prevent a resort to equity. The terms
of the statute, as well as its spirit, embrace a case like the
present.
COLLIER, C. J. The cases cited for the defendant in
error lend no support to the judgment of the circuit court.
In Williams, et al. v. Berry, et al. 3 Stewart & P. Rep. 284,
the court cited the act of 1819, which provides that appeals
from the judgments of justices of the peace shall be tried "ac-
cording to the justice and equity of the case, without regard-
ing any defect in the warrant, capias, summons, or other pro-
ceeding of the justice before whom the same was tried."
Further, where the sum claimed does not exceed twenty
JUNE TERM, 1847. 179
Hodges v. Hoole.
dollars, the plaintiff or defendant may be examined on oath,
and judgment shall be given " as the right of the cause may
appear " to require. These enactments, it was supposed,
were intended to secure to the parties in suits under fifty
dollars, originating before justices of the peace, all the jus-
lice and equity to which they were entitled j especially
where the amount in controversy did not exceed twenty dol-
lars. "If in any such cases," say the court, "the regular
interposition of chancery can be allowed, we think it can
only be where the sum exceeds that sum excluding the tes-
timony of the parties : and where, under peculiar circum-
stances, justice obviously demands the interference." In
Wood v. Wood, et al. 3 Ala. Rep. 763, we say it had been
considered that the statutes regulating appeals from justices
of the peace, and the mode of trial in the higher court, se-
cure to the parties all the justice and equity to which they
are entitled ; especially where the amount in controversy
does not exceed twenty dollars. " Consequently, it has been
holden, that if in any such case, chancery will interfere, it
must be where the amount in controversy exceeds" that sum.
These cases, it is clear, are not decisive of the one before
us. It is not intimated, that the statutes referred to, invested
justices of the peace with jurisdiction of cases of exclusive
equitable cognizance ; but only, that in cases of which they
had jurisdiction, they should be controlled by enlarged and
liberal principles of justice. But conceding that these enact-
ments were intended thus to extend the powers of these func-
tionaries, and the question then arises, has the plaintiff shown
any title to redress against the trustee of Mrs. Booth. He
does not appear to have had the possession and control of her
separate estate ; nor does it seem to have been proved that
the plaintiffs rendered their medical services at his instance,
or that he promised to pay them. In the absence of all evi-
dence of this kind, the defendants are not chargeable in any
forum. The consent of an individual to the insertion of his
name as a trustee in a deed settling property for the benefit
of a married woman, cannot impose on him the obligation to
pay for the preservation or safe-keeping of that property.
True, he may extend his powers and obligations as a trustee,
by the stipulations of the deed, or the control he is permitted
180 ALABAMA.
Hazard v. Jordan.
to exercise over the property. [2 Story's Eq. 242.] But
the deed is not before us, and nothing else is shown than that
the defendant was a trustee for a feme covert merely for the
purpose of upholding her interest against her husband and
his creditors. In this posture of the case, the defendant is
not liable to pay the plaintiffs' account. The judgment is
consequently reversed, and the cause remanded.
HAZARD v. JORDAN.
1. A motion to dissolve an attachment on the ground that the cause of ac-
tion does not warrant that process, can properly be entertained when a
new or amended declaration is filed, setting out a cause of action not with-
in the statute, if the motion is made within the time for pleading in abate-
ment
2. Process of attachment by one non-resident against another, will lie only
for causes of action on which debt, or indebitatits assumpsit, could be
brought
Writ of Error to the County Court of Mobile.
ATTACHMENT by Hazard, against the goods, &c. of Jordon.
The affidavit was made the 23d January, 1841, and describes
Hazard as a resident of Rhode Island avers that Jordan re-
sides out of this State, so that the ordinary process of law
cannot be served on him, is indebted to the plaintiff in the
sum of $1400 and has not sufficient property within the
State of his residence, within the knowledge of the plaintiff
wherefrom to satisfy the said debt.
Certain proceedings on this attachment were afterwards
had, which resulted in judgment for the plaintiff, which was
reversed in this court, and the cause remanded for further
proceedings. [See Jordan v. Hazard, 10 Ala. R. 221.]
Upon the return of the cause to the county court, the de-
JUNE TERM, 1847. 181
Hazard v. Jordan.
fendant obtained a rule for the plaintiff to show cause why
the attachment should not be dissolved as not warranted by
the laws of this State. This was done at the February
term, 1847, at which term the plaintiff had previously asked
and obtained leave to amend his declaration. The plaintiff
in answer to this rule, insisted the attachment should not be
dissolved
1. Because of the lapse of time between the return of the
attachment and the motion to dissolve.
2. That the defendant, at the time of the levy, was within
the jurisdiction of the court, and employed counsel to appear
and defend the suit.
3. That there has been a trial, verdict and judgment in the
cause.
In addition to these reasons against the dissolution, the
plaintiffs cause of action, as it appeared from depositions in
the cause was submitted to show the ground for the attach-
ment. From these it appears the plaintiff claimed that the de-
fendant, in April, 1835, contracted with him to take all of
certain iron in three flat boats upon a certain vessel called
the Ann Maria, lying at New Orleans and bound for Provi-
dence. The boats containing the iron were taken alongside
the Ann Maria, and the defendant commenced taking the
iron on board. He left a quantity of the iron in the boats,
and this he refused to take, complaining it would not pack
well with the remainder of his freight. One of the boats,
containing about forty tons of iron, of the value of $1000,
sunk, and was totally lost. There was ample time for the
defendant to have taken the iron on board his vessel, and its
loss was caused by his refusal to take it according to his con-
tract. The expenses for taking out the remainder of the iron
left was about $100.
The amended declaration states the cause of action thus :
"that the plaintiff, at the defendant's instance, and request,
dalivered \o him certain iron, &c., to be by him conveyed
from New Orleans to Providence, in consideration whereof
the said defendant promised the plaintiff to take due care of
the said iron, whilst he had charge of the same, yet the said
ALABAMA.
Hazard v. Jordan.
defendant disregarded his said promise," &c., and the decla-
ration concludes by alledging a loss of the iron whilst the
defendant had charge of the same, by reason of his default to
take care of it, and by his negligence.
The court on this showing dissolved the attachment, and
this is now assigned as error.
LESSESNE, for the plaintiff in error, insisted
1. The attachment issued for a proper cause of action.
[Searg. on Attach. 43 ; McClanahan v. McCarty ; Fisher v.
Consequa, 2 Wash. 382; Weaver v. Puryear & Williamson, at
last term, and cases there cited.
2. It is too late, after such lapse of time to move for a dis-
solution of the attachment, for a defect in the cause of action.
It should have been done at the first term or at least before
the trial of the cause before a jury. [Miltenberger v. Lloyd,
2 Dall. 79 ; Mills v. Fraser and McFarland, cited in Searg. on
Attach. 138.J To allow such a practice would be at war
with the spirit of our statute, and rules, on the subject of
pleading.
STEWART, contra.
GOLDTHWAITE, J. 1. A preliminary question was
raised in the court below, whether it would entertain the
motion to dissolve the attachment on account of the lapse of
time since it was issued. As a general rule, it cannot be
questioned, the party should not be permitted to lie by with-
out raising the objection when the cause for it is apparent ;
but we apprehend the analogy which must govern the prac-
tice will be found in the rules which obtain in setting aside
bailable process, on account of irregularities, and in pleading
a variance between the declaration and the writ, when the
former is not warranted by the latter. According to the
course of practice in the King's bench, the writ is general,
and the plaintiff is allowed to declare for any cause of ac-
tion, but if bail is required, he will be held to declare ac-
cording to the affidavit, or the bail will be discharged. So
with us, the plaintiff is required to indorse his cause of ac-
tion on the writ, and a variance between the declaration and
JUNE TERM, 1847. 183
Hazard v. Jordan.
writ in this respect, would doubtless be good cause to set a-
side the declaration, [Ex parte Ryan, 9 Ala. 89,] but we ap-
prehend the objection should be taken at as early a period as
possible, and would not be allowed unless urged within the
time that a plea in abatement should be pleaded for a
variance between the body of the writ and the declaration.
Indeed, this seems to furnish the precise rule in a case like
the present. When the plaintiff, declares for a cause of ac-
tion for which the statute allows the process of attachment,
and joins other causes, the defendant has no other remedy
than to call upon the court to interpose for his protection.
But there is no necessity for this when the declaration con-
sists of counts for causes within the statute, and other defec-
tive counts. In such a case a demurrer to the defective
counts must lead to their amendment or abandonment. It
is only when the counts are amended that the cause exists
for the interposition, of the court by rule. Here, it will be
seen by referring to the former report of the cause, the first
declaration contained defective counts, and the declaration
was amended by filing a new count in the court below. It is
very clear, in our judgment, that the defendant upon an
amended declaration, would be allowed to plead its variance
from the writ, no matter when the amendment was made ;
[Comstock v. Meek, 7 Ala. Rep. 528 ;] and by analogy to
this, it seems to us he was entitled to the rule for the plain-
tiff to show cause why his attachment should not be dissolv-
ed, for the reason that his cause of action was not within the
statute.
2. Coming then to the merits of the motion, we do not
think ourselves called upon to say how far the decision of
Weaver v. Puryear, 11 Ala. Rep. 941, would control this
case if the attachment was under the general law. This
process is sued by one non-resident against another, and the
act which gives the remedy is greatly more limited than the
general act. It provides, that when any person being a non-
resident of the State, "is indebted to any person also a non-
resident, either by judgment, note, or otherwise" the process
may be allowed. We think the construction of these terms
ALABAMA.
Kain v. Walke.
cannot be extended beyond causes of action for which either
debt or indebitatus assumpsit will lie. The cause of action
disclosed alike in the count of the plaintiff's declaration, and
by his proof is one for general and unliquidated damages
only.
The consequence is, the plaintiff had no cause of action
to warrant the process of attachment, and there was no error
in dissolving it.
Judgment affirmed.
KAIN v. WALKE.
1. In a suit against the assignor of a note, by the assignee, the allegation,
that the plaintiff commenced a suit against the maker, to the first court,
&c. is sustained by the production of the record of a suit, commenced in
the name of the payee, for the use of the plaintiff, if the judgment is still
in force, unreversed.
2. The death and insolvency of the maker of a note, is a sufficient excuse
for the failure to prosecute a suit against hhn, to a return of " no property
found" by the sheriff.
Error to the County Court of Marengo.
ASSUMPSIT by the plaintiff in error, as assignee, to recover
of the defendant in error as assignor, of a promissory note,
made by Spencer Roane.
The declaration contains three counts. The first is in the
usual form, alledging, that after the indorsement, "he com-
menced a suit by capias, issued the 10th April, 1839, founded
upon said promissory note, and returnable to the then next
term of Marengo county, being the first court to which suit
could be brought after the indorsement of said note to the
plaintiff," $-c.
JUNE TERM, 1847. 1-85
Kain v. Walke.
The second count offers, as an excuse for not returning
the execution, "no property found," that after the execution
was issued on the judgment aga^t Roane, he gave security,
and prosecuted a writ of errori^TOie circuit court, and that
the execution was returned superseded by the sheriff. That
Roane died, and the writ of error abated, and that Roane was
wholly insolvent after his death. The third count, in addi-
tion to these facts, alledges that the sureties of Roane to the
writ of error bond, were insolvent.
The defendant demurred to the two last counts of the de-
claration, and his demurrer was sustained by the court.
Upon the trial, the plaintiff offered in evidence, under the
first count of his declaration, the record of a suit instituted
against the maker of the note by him, in the name of the pay-
ees of the note, for his use, which on motion the court re-
jected, and he excepted. This, together with the judgment
of the court, on the demurrer, to the two last counts of the
declaration, are now assigned as error.
JOHNS, for plaintiff in error.
Although a suit brought by the payee for the use of the
indorser, is an acknowledgment that the legal title is in the
indorser, yet an indorsement in blank has not that effect ;
but if it has, the indorser in this case has no right to take ad-
vantage of the error, and plaintiff ought to be permitted to
explain the manner of suit and the nature of the indorse-
ment. [Hunt, use, &c. v. Stewart, 7 Ala. Rep. 525; Bur-
dick v. Green, 15 Johns. 247; U. S. v. Barker, Paines, 156 ;
1 G. & Johns. 175.]
The above are all cases between payee, who had indorsed
the cause of action, and the maker. The maker in this case
did not avail himself of this advantage, and no one else can.
This being a blank indorsement, the indorser cannot in this
suit avail himself of the error in the original suit. [2 Rich.
332; 15 Wend. 640; It Id. 27; 7 Cowen, 174; 11 Johns.
(52) 57; 19 Pick. 43.]
The averment in the declaration that Roane died insol-
vent, and that his securities were insolvent, is sufficient ex-
cuse for not having a return of no property. [Thompson v.
Armstrong, Breese, 23.]
24
186 ALABAMA.
Kain v. Walke.
No counsel appeared for the defendant.
ORMOND, J. The cas^f Bates v. Ryland, 6 Ala. 675,
is a conclusive authority,^^i the death and insolvency of
the maker of a note, is a sufficient excuse for the failure to
prosecute a suit against him, to a return of " no property
found" by the sheriff. This is the excuse offered, for the
omission in those counts of the declaration to which the de-
murrer was sustained, for the failure to alledge, that the stat-
ute condition had been performed. The court should not
therefore have sustained the demurrer for this cause, and no
other has been brought to our notice, or been observed by
us, which would justify it. [See also Clair v. Barr, 2 Bibb,
255.]
The act defining the liability of indorsers, gives this right
to the assignee, " provided suit be brought to the first court
of the county where the maker resides, to which suit can be
brought, and if he shall fail to sue the maker to the first
court, as herein provided for, the indorsee shall be discharged
from liability, unless suit shall be delayed by his consent."
The right of the assignee, to recover of the assignor, is made
to depend upon the bringing of a suit against the maker, to
the first court, and in our judgment this condition of the stat-
ute is complied with, when a suit is instituted against the
maker, upon the note, and a judgment obtained, upon which
an execution could issue against him. The objection in this
case, is understood to be, that the suit against the maker was
not brought in the name of the assignee, but in that of the
payee for his use. This mode of bringing the suit, might
be necessary in the case of an irregular indorsement, and is
not in our opinion a matter, which the assignor can object to.
If a suit is in fact brought against the maker to the first court,
and an execution returned no property found ; or if a valid
excuse is offered for the omission to produce the statutory
evidence, afforded by the return of the sheriff, the statute is
complied with. We think therefore, the allegation, that the
plaintiff commenced a suit against the maker, is proved by the
JUNE TERM, 1847. 187
The State Bank v. Dent and Pattison.
production of the record, of a suit commenced in the name of
the payee, for the use of the plaintiff^
What would be the effect upon tlifr rights of the assignee,
where a judgment so obtained, was reversed by the maker,
we need not consider, as the judgment offered in evidence in
this case is still in force.
Let the judgment be reversed, and the cause remanded.
THE STATE BANK v. DENT AND PATTISON.
1, An allegation in a notice, that the bank would move for judgment on a
bill dated the 4th January, 1840, that " it was purchased under the first
section of the act of 1843," should be rejected as surplussage.
Writ of Error to the County Court of Tuscaloosa.
. THIS was a summary proceeding by notice and motion at
the suit of the plaintiff. The defendant pleaded to the no-
tice TiOTi asoumpsit and other pleas ; thereupon the issues
were submitted to a jury, but afterwards the plaintiff except-
ed to the ruling of the court, and then suffered a non-suit.
It appears from the bill of exceptions, that the notice was
addressed to the sheriff, and required him to serve the same
on Dennis Dent, Charles S. Pattison, and James Hullum, and
then proceeds thus : " Whereas, you are indebted to the Pre-
sident and Directors of the Bank of the State of Alabama, by
a bill of exchange purchased under the first section of the
act of 14th February, 1843, being an instrument for the pay-
ment of money, executed by one R. Caruthers, as drawer,
you the said Dennis Dent, Charles S. Pattison, and, James
Hullum as indorsers, and the said R. Caruthers as acceptor,
which bill is dated on the 4th day of January in the year one
thousand eight hundred and forty," payable six months af-
188 ALABAMA.
The State Bank v. Dent and Pattison.
ter date, and duly protested for non-payment on the 7th of
July next thereafter. ^The notice is drawn out at length,
and states every thing^which it would be necessary to al-
ledge in a declaration, if the suit had been instituted in the
usual form.
The defendants' counsel objected to the admissibility of
the bill described 'in the notice, on the ground that the no-
tice stated that the bill was purchased under the first section
of the act of 14th February, 1843. The court sustained the
objection, and excluded the bill from the jury : thereupon the
plaintiff excepted.
P. MARTIN, for the plaintiff in error.
E. W. PECK, for the defendants in error.
COLLIER, C. J. The act of 1846 confers upon this court
the authority to revise a judgment of non-suit, which has
been rendered under the circumstances disclosed in the re-
cord. The only question then, which is presented is, whe-
ther the bill described in the notice is so variant from that
offered as evidence, as to have required its exclusion.
In Griffin v. The Bank of the State, 6 Ala. Rep. 908, we
said, the notice issued at the suit of a bank against its debtor
is process to bring in the latter to answer. But after the mo-
tion indicated by it is made, it is then to be regarded as a mo-
tion in writing, identifying the debt sought to be recovered,
and against which the defendant may urge any ground of de-
fence recognized as available according to legal forms. The
notice then is assimilated to a declaration it subserves the
purpose both of a writ and declaration, though it may not be
so formal as the latter. Yet it should set out the evidence
of indebtedness with such precision that the defendant may
know, from an inspection of the notice itself, against what
he is called on to make defence. It is therefore allowable
for the defendant either to demur to the notice, or plead to
issue. , And in Crawford v. The Branch Bank at Mobile, 7
Ala. R. 205, it was said, that Lyon v. The State Bank, 1
Stew. Rep. 442. determined that a notice at the suit of a
bank, against its debtor, is sufficientj if it identifies the debt
JUNE TERM, 1847. 189
The State. Bank v. Dent and Pattison.
with reasonable -certainty, though it has not the precision of
a declaration : Further, that this case has been followed in
practice, and such notices have been considered unexcep-
tionable, although they do not contain the extrinsic allega-
tions that are essential to a declaration.
The statement in the commencement of the notice, that
the bill was purchased under the act of 1843, is certainly not
descriptive of the bill on which the motion was submitted.
It was a matter independent and extrinsic, and could have
no other effect, if true, than to entitle the bank to thirty per
cent, damages upon the dishonor of such a bill ; for if the
bill was taken in renewal or settlement of a pre-existing debt,
instead of the remittance of funds to pay principle or inter-
est upon State bonds, then the damages would be according
to the law previously applying. This being so, it is diffi-
cult to perceive any sufficient reason for rejecting the bill as
evidence.
If the statement in the notice, that the bill was purchased
under the statute, threw upon the plaintiff the onus of prov-
ing it, then the objection for a defect of prpof should have
been raised after the plaintiff had closed his proof. And if
delayed until then, there can be no question but it should
have been overruled. We have seen that greater indulgence
is allowed in proceedings of this character, than where the
plaintiff declares in the usual mode of prosecuting actions,
and that if the notice informs the defendant of what he is
called on to answer, although it does not con'tain the allega-
tions which are essential to a declaration, it is quite sufficient.
The same rule we think must be applied where the notice,
in addition to informing the debtor for what cause a motion
will be made against him, states an independant and repug-
nant fact not essential to his right to recover. And in such
case the plaintiff is entitled to recover without proof of the
unnecessary allegation.
But if the strictest rules of pleading are applied, they w.ill
not support the ruling of the county court. It is said to be
well settled,* that where a declaration contains impertinent
matter, foreign to the cause, it need not be proved^ujd that
immaterial averments do not at this day require precise proof,
unless the failure of such evidence would occasion a vari-
190 ALABAMA.
The State Bank v. Dent and Pattison.
ance between the pleadings and the proof in fact such evi-
dence is not necessary, unless the subject of the averment is
a record a written instrument, or an express contract. [Pharr
& Beck v.*Bachelor, 3^1a. R. 237.]
If matter wholly foreign and impertinent to the cause, in
respect to which no allegation was necessary, be stated, it
will be rejected as surplussage and need not be proved, utile
per inutile non vitiatur; except where, by the unnecessary al-
legation, the plaintiff shows that he has no cause of action.
So a superfluous allegation, repugnant to what was before
alledged, is void, and will be rejected ; and even if the incon-
sistent matter precedes a proper statement of the cause of ac-
tion, it will be disregarded, if its rejection will not leave the
declaration in other respects imperfect. [1 Chitty's PI. 3
Am. ed. 232 to 235 ; Step. PI. 377 ; Bank U. S. v. Smith,
11 Wheat. R. 171; Gould's PL 16; Bristow v. Wright,
Doug. R. 665; Savage v. Smith, 2 Black.' R. 1101; The
Friendship, 1 Gall. R. 45.]
The date of the bill, and the time of its maturity clearly
show, that it was impossible it could have been purchased
under the act of 1843 the statement of this fact is wholly
disconnected with what follows in respect to the bill, its date,
non-payment, &c., and may be stricken out without impair-
ing the cause of action. It is immaterial and inconsistent
with the ground upon which the motion was made, and need
not have been proved to entitle the plaintiff to recover, and
cannot in any manner prejudice. [2 B. & Cresw. R. 2.]
The term surplusage, in pleading, comprehends whatever
may be stricken from the record, without destroying the
plaintiff's right of action. [1 Greenl. Ev. 58; 1 Saund. on
Plead. & Ev. 415-6 ; 3 Stark. Ev. 1534 ; Hutchison v. Pat-
rick, 3 Miss. Rep. 65 ; Alvord v. Smith, 5 Pick. R. 232 ; De
Forest v. Brainerd, 2 Day's Rep. 528.]
Thus we see, that if instead of a notice, the statement of
the cause of action were a declaration consequent upon a writ,
the plaintiff might, upon proof of the dishonor of the bill,
notice, &c.. recover, without offering evidence* that it had
been o^sQunted under the act of 1843 that statement being
strjcke'n out, or disregarded, would not affect the right of ac-
tion on the bill. The recovery would be graduated by the
JUNE TERM, 1847. _191
Gilbert v. Brashear and Gooch.
amount of the bill, interest, and damages according to the
rate prescribed in ordinary cases. The statement of the cir-
cumstances under which the plaintiff became the proprietor,
was alledged with the view of increasing the damages ; and
it is well settled, that the failure to prove matter of aggrava-
tion, set out in the declaration, will not deprive the plaintiff
of the right to recover for the injury actually sustained.
These principles we have said are well founded when appli-
ed to a declaration, and again repeat that much greater in-
dulgence is shown to a notice. The consequence is, that the
judgment is reversed the non-suit set aside, and the cause
remanded.
GILBERT v. BRASHEAR AND GOOCH.
1. When the hearing of a claim against an insolvent estate is continued to a
time beyond that fixed in the first instance for the settlement, the creditor's
affidavit (fbf the omission of which exception is taken) may be filed at any
time before the bearing.
Writ of Error to the Orphans' Court of Shelby.
THE estate of F. Young was declared insolvent, upon the
representation of Brashear and Gooch, its administrators, on
the 27th December, 1845. The plaintiff filed his account
against the estate, in writing, within the six months next
thereafter, to which was appended an affidavit, purporting to
be made by him before one William J. Flagg, a justice of the
peace in the state of Connecticut, on the 1st November, 1844,
and declaring the same account to be just and true.
The administrators filed their exceptions to the allowance
of the account, on the ground that it was not filed verified by
192 ALABAMA.
Gilbert v. Brashear and Gooch.
the oath of the plaintiff within six months after the estate was
represented insolvent, &c., and was not due, &c.
The trial of 'the exceptions was continued from time to
time until December, 1846, when, in addition to the original
affidavit, filed as before stated, plaintiff produced another,
made before the same justice of the peace, on the 21st No-
vember, 1846, whose certificate was accompanied with that
of the secretary of state of Connecticut, under the seal of
state, shewing his official character. This affidavit was filed
the 16th December, 1846.
The court, upon the hearing of the claim, rejected it, on
the ground that the first affidavit was not shewn to be made
bofore a justice of the peace ; and the second was not filed
within the six months, although it was so before the hear-
ing. The rejection of the claim is the only error assigned.
T. J. CLARK, for the plaintiff in error.
POPE, contra, cited Hollinger v. Holly, 8 Ala. Rep. 456 ;
Brown v. Easley, 10 ib. 566.
GOLDTH WAITE, J. The decision in Hollinger v. Hol-
ly, 8 Ala. Rep. 454, settles, that the omission of the creditor's
affidavit, is a sufficient ground of exception to prevent the al-
lowance of his demand against an insolvent estate, but this
defect may be supplied, after exception taken, if the affidavit
is made before the time set for hearing. [Brown v. Easley,
10 Ala. Rep. 566 ; Shortridge v. Easley, ib. 520.] In this
case, although the second affidavit was filed after the time set
in the first instance for hearing the claims, yet as that was
extended by subsequent orders of the court, as to this particu-
lar claim, we must consider the verification as within the
previous decisions referred to. This being the case, and as
the second affidavit is not objected to, we are relieved from
considering how far credit must be given to an affidavit made
in another state, arid the character of the individual adminis-
tering the oath, not being certified under the seal of the
state.
JUNE TERM, 1847. 193
Hallett and Walker, ex'ra, v. The Branch Bank at Mobile.
We think the court erred in rejecting the claim on the
ground that there was no affidavit filed within proper time.
Reversed and remanded.
HALLETT & WALKER, EX'RS OF J. KENNEDY, v. THE
BRANCH BANK AT MOBILE.
1. A notice of the non-payment of a promissory note, personally served on
the executor of an endorser of the note, or which is shown to have come to
his hands, although it may come from a notary protesting the note, will
be sufficient to withdraw the claim from the influence of the statute of non-
claim, if it describe the note with accuracy, and informs the personal re-
presentative, who the holder is, and that he looks to him for payment.
ORMOND, J., dissenting.
Error to the Circuit Court of Mobile.
ASSUMPSIT by the defendant in error, against the plaintiffs
in error, as executors of Joshua Kennedy, endorser of a pro-
missory note.
Upon the trial of the cause, as appears from a bill of ex-
ceptions, the plaintiff introduced Edwin Rust, a notary pub-
lic, who proved, that he either gave the notice personally, or
left the notice of non-payment, and protest, mentioned in his
protest, at the office of Wm R. Hallett, at the time mentioned in
the certificate of protest ; but he could not state to whom it
was directed, whether to Kennedy or Hallett, but that either
Hallett or Kennedy's name, was on it. At the time this no-
tice was alledged to have been given, Kennedy was dead,
and Hallett and Walker had qualified as his executors. The
certificate endorsed upon the protest, referred to in the evi-
dence of the notary, is in these words : "Notices of protest
given to the endorser the same day."
The defendants moved the court to instruct the jury, that
25
194 ALABAMA.
Hallett and Walker, ex'rs, v. the Branch Bank at Mobile.
the evidence offered of notice of protest, though it might be
sufficient evidence of that fact, was not sufficient evidence of
a presentment of the claim to the executor, to prevent the bar
of the statute of non-claim, which the court refused, and in-
structed the jury, that the notice of protest by the notary, was
a sufficient evidence of presentment to the executors, to take
the case out of the statute of non-claim; and that if Hallett
got the notice, no matter how directed, they could on this
proof, find that the claim was sufficiently presented thereby
to the executors, so as to avoid the plea of the statute of non-
claim. This was excepted to, and is now assigned as error.
STEWART, for plaintiff in error. The appellants contend
that the notice of protest by the notary, had not the effect of
a presentment of the claim ; and that the notary had no au-
thority to make such a presentment by virtue of his office.
[See Jones v. Lightfoot, 10 Ala. 17 ; Boggs v. Br. Bank, ib.
970 ; Badger v. Steele, ib. 944 ; Thrash v. Sumwalt, 5 ib.
13 j Hollinger v. Holly, 8 ib. 454 ; Travis v. Tartt, 8 ib. 577;
Bigger v. Hutchings, 2 Stewart, 448 ; Kenan v. Saxton, 13
Ohio 41 ; P. & M. Bank v. King, Upson & Co. 9 Ala. Rep.
279, as to agent.]
CAMPBELL and LESSESSNE, contra. The defendant con-
tends, that a notice of a protest of a note, endorsed by his
testator, served upon the executor personally, fulfils the re-
quisitions of the statute of non-claim. The object of the no-
tice is to inform the executor that a contingent liability of
his testator has become absolute, and to warn -him that
the estate is looked to for payment. The object of a prose-
cution is to give the same information, and to enable the ex-
ecutor to take the necessary precautions. [2 Wms. on Ex'rs.
678, 679 ; 2 Smedes & M. 403.] The proof of the claim, it
was not necessary to submit to the executor. [Jones v. Pharr,
3 Ala. 283.] This court has decided that the notice afford-
ed in process, served upon the executor, would, in certain
cases, be equal to a presentment. The reason is much stronger
in the case before the court. [*0 Ala. Rep. 17.]
JUNE TERM, 1847. 195
Hallett and Walker, ex'rs, v. The Branch Rank at Mobile.
ORMOND, J. The question involved in this case, has
been recently fully considered by this court, in the case of
Jones v. Lightfoot, 10 Ala. 17, and Boggs, Ex'r, v. The B.
Bank, Ib. 970. These cases hold, that knowledge of the
fact of the existence of the debt, by the personal representa-
tive, no matter how full, or perfect it may be, will not dis-
pense with a presentment of the claim to the personal repre-
sentative, as required by the statute. The reason upon which
these decisions are based,, is, that without a presentment, the
personal representative cannot know that the estate he repre-
sents, is looked to for payment of the debt ; yet that such
knowledge is essential to him, because he may be called on
after the lapse of eighteen months for distribution of the es-
tate, and can only refuse to distribute the estate, by showing
outstanding claims against it. But, as mere knowledge of
the existence of a claim against the estate, by the personal
representative, would, if sufficient to excuse him from distri-
buting the estate, postpone such distribution for an almost
indefinite period, it was evident the legislature designed, that
a presentment of the claim, to the personal representative,
should alone be sufficient proof, that it would be asserted
against the estate, and justify him in retaining assets to dis-
charge it, in the event it should be ascertained the estate was
liable to pay it.
It was also admitted, there were certain acts, equivalent in
legal estimation to a presentment in pais to the personal re-
presentative ; such as the prosecution of a suit within the
time required by law for the presentment, or the revival of a
suit, or judgment, by scire facias against him, within the
same period ; as these were unequivocal acts, and notice to
the administrator, not only of the existence of the claim, but
of an intention to assert it against the estate. The potency
of this last mentioned ingredient, in any act, which is relied
on as an equivalent for an actual presentment in pais, is
shown by the case of Boggs v. The B. Bank, supra ; where
it was held, that a judgment obtained against the personal
representative, which was afterwards vacated, was not equi-
valent to an actual presentment in pais. And in like man-
ner, in the old case of Bigger v. Hutchinson, 2 Stewart, 448,
that the suing out of a writ, within the time required by law,
196 ALABAMA.
Hallett and Walker, ex'rsTvT The Branch Bank at Mobile.
bat which was not prosecuted to judgment against the admin-
istrator, would not satisfy the terms of the statute.
I am unable to distinguish these cases from the present.
Conceding that a notice to the personal representative, of the
dishonor of a note, upon which his testator, or intestate, was
an indorser, does inform him, as it doubtless does, of the ex-
istence of the claim, it gives him no information whatever
of another fact, equally as important, that the estate he
represents is looked to for its payment ; and if this is
wanting, it is nothing more than mere knowledge of the
existence of the claim, which we have seen is insufficient.
Indeed, notice to charge a party to a bill, or note, of its dis-
honor, may be, and in most cases is given, through the me-
dium of the post office ; and if placed in the post office at
the proper time, will be evidence of notice, whether it reaches
the party intended to be notified or not. Nor is a notice of
the dishonor of a bill, or note, unequivocal proof that pay-
ment is demanded. The money may be made from other
parties to it, primarily liable to the holder, and in such a case,
the notice would be wholly inoperative.
For these, and other reasons which might be adduced, I
am of the opinion that such a notice is not equivalent to a
presentment to the personal representative, which was not
only designed by the statute to give him notice of the exist-
ence of the claim, but also to apprize him that payment was
demanded; and- to afford him an opportunity of paying it, if
he thought proper. But my brethren think that a notice
personally served on the administrator, or which is shown ta
have come to his hands, although it may come from a notary
protesting the bill, or note, will be sufficient to withdraw the
claim, from the influence of the statute of non-claim, if it
describe the bill, or note, with accuracy, and informs the re-
presentative who the holder is, and that he looks to the ad-
ministrator for payment. That is substantially, what the
presentment of a demand to the administrator should contain,
and that it makes no difference, that it comes from the no-
iary, as he is in that capacity authorized to receive payment.
We have been referred to the case of Helm v. Smith, 2
Smedes & M. 403, decided by the supreme court of Missis-
sippi, upon a statute similar to ours, where the doctrine as-
JUNE TERM, 1847. 197
Hallett and Walker, ex'rs, v. The Branch Bank at Mobile,
serted by my brethren, is certainly fully sustained. The facts
of that case, were, that a notice of the dishonor of a mer-
cantile instrument, was sent by mail directed to the indorser,
who was dead at the time the notice was sent, but the post
office to which it was directed, was the same at which the
executor of the deceased was in the habit of receiving his
letters. There was no positive proof that the notice came
to the hands of the executor, but there were facts in evi-
dence from which such an inference might, without impro-
priety, have been drawn by the jury. The court held, that
such a notice, if received by the executor, was a sufficient
presentment of the claim to the executor, to bar the statute
of non-claim. They came to this conclusion, because they
held, the whole purpose of the statute, was to give the per-
sonal representative notice of the existence of the claim. " It
would therefore, (in the language of the court,) be legitimate,
to show a notice of such a claim, to an executor or adminis-
trator, by any legal evidence, which would establish the
fact, of their knowledge of its existence, to the satisfaction of
a jury, because the design of the statute, would thereby be
accomplished."
Upon this theory of the design of the statute, the decision
cited was certainly correct; but that is not our view of the
object the Legislature had in view in its passage. This
court, by a series of decisions, commencing under its former
organization, and continuing down to a very recent period,
has held, that knowledge of the existence of the claim by the
personal representative, was not of itself sufficient, to arrest
the operation of the statute. Thus, in the recent case of
Jones v. Lightfoot, 10 Ala. 24, this court say, " if knowledge,
merely, of the existence of the claim, by the personal repre-
sentative, is sufficient in any conceivable case,-(except where
the debt is due to the personal representative himself,) it must
be in this." Yet the court resisted the strong temptation,
which constantly assails all courts, of bending the law to suit
the abstract justice of the case, and adhered to the rule, that
knowledge merely was not sufficient ; and the debt was lost,
although the question arose in a suit in equity, and it was
shown that the executors, who were the sons of the deceas-
ed, knew all about the claim, had consulted and retained
198 ALABAMA.
Hallett and Walker, ex'rs, v. The Branch Bank at Mobile.
counsel to defend the suit, if revived against them, and had
in fact kept in reserve a sufficient sura to pay the debt, if the
suit was revived and went against them.
That a notice such as this, is not equivalent to a present-
ment, is manifest, from its wanting the essential ingredient,
upon which all our decisions hitherto have been based the
information that the estate is looked to for payment. I do
not understand, that a notice to charge a party to a negotia-
ble instrument, must in express terms inform him, that he is
looked to for payment. His liability to pay, is a legal con-
sequence of his being notified of the dishonor of the paper. '
But if it contained this express language, it would not in my
opinion vary the case. It by no means follows, that because
a party to a bill, is notified of its dishonor, that he will ever
be called on for payment. The habit is, for the holder to
notify all the parties to a bill, but if payment is made by a
prior party on the instrument, the notice would be entirely
nugatory. How, it may be asked in such a case, is the ad-
ministrator to know, that the estate he represents will ever
be called on for payment ; and how can he refuse, if called
on by the distributees to make distribution, because he has
received such a notice ? What length of time must the es-
tate be tied up, waiting this possible contingency ?
The presentment contemplated by the statute, is one which
will not only inform the administrator that the estate is look-
ed to for payment, but such as would also give him the pow-
er, if he had the means, to pay the debt. I will not stop to
controvert the position, that a payment to the notary would
be sufficient. He has the note for the purpose of demand-
ing payment, and of course may receive the money if tender-
ed. In this particular he is like any other agent, who has
the note for collection. But if payment is not made, and he
protests for non-payment, and gives notice, his agency is at
and end ; he has no longer any right to receive the money.
He returns the bill to his principal, and his agency is at
an end. It would be a most alarming doctrine, that the no-
tary was invested with power to receive the money, upon a
note, or bill, after protest and notice of its dishonor. This
is a point which it seems to me is too clear for argument, and
JUNE TERM, 1847. 199
Crumpton v. Newman.
it appears to result as a necessary carollary from this, that
the information derived from the notice, is knowledge mere-
ly, that such an instrument exists, upon which the deceased
was a party. It is not a presentment of the note for pay-
ment, because the administrator cannot pay it if he desired
to do so.
For these reasons my opinion is, that the charge of the
court was erroneous, and the judgment should be reversed :
but the majority of the court thinking otherwise, it must be
affirmed.
CRUMPTON v. NEWMAN.
1. To constitute the offence of obstructing process, in a criminal point of
view, there must be an active opposition ; not merely taking charge of a
debtor's property, keeping it out of view, and refusing when called on by
an officer to place it within his reach.
2. A warrant, which recited, that W C did oppose W A, a constable, in the
execution of civil process, by concealing, and keeping concealed, the
property of one James Frost, is a nullity, and the party who caused it to
be issued, as well as the officer who acted under its authority, are liable
in trespass to the party arrested.
Writ of Error to the Circuit Court of Lowndes.
THIS was an action of trespass at the suit of the plaintiff
in error, alledging an assault and battery upon, and impris-
onment of him, by the defendant, without reasonable and
probable cause, &c. On a trial before the jury, the plaintiff
read as evidence an affidavit and warrant as follows, viz :
" The State of Alabama, Lowndes county. Personally came
before me, R. S. Fletcher, an active justice of the peace in
and for said county, Morris Newman, who being duly sworn,
deposeth and saith, that on the 21st day of March, A. D. 1846,
one William Crumpton, of said county, did oppose Williang
200 ALABAMA.
Crumpton v. Newman.
Atkinson, a constable of said county, in the execution of civii
process by conceal ing and keeping concealed, the property of
one James Frost, of the county aforesaid. Sworn to and sub-
scribed before me, the 21st day of March, 1846.
MORRIS NEWMAN.
R. S. FLETCHER."
" The State of Alabama, Lowndes county. To any con-
stable of said county, greeting : Whereas, complaint has been
made to me, R. S. Fletcher, an acting justice of the peace in
and for said county, on the oath of Morris Newman, that on
the 21st day of March, 1846, one William Crumpton of said
county, did oppose William Atkinson, a constable of said
county, in the execution of civil process, by concealing, and
keeping concealed, the property of one James Frost, of the
county aforesaid. These are therefore to require and com-
mand you, by the authority of the State of Alabama, to ar-
rest the said William Crumpton, and bring him before me
or some other justice of the peace for the said county, at my
office, on the 31st inst., to answer the said complaint, and fur-
ther to be dealt with according to law. Given under my
hand and seal, this the 21st day of March, 1846.
R. S. FLETCHER, (seal.)
The affidavit was made and subscribed by the defendant,
and he delivered the warrant to Atkinson, the constable, to
be executed. Other testimony was adduced by the plaintiff,
showing that the Christian name of Crumpton was inserted
in the affidavit and warrant, after the former was made and
the latter was delivered to the constable. It was also proved,
that the plaintiff, when called on by the constable, refused
to inform him where a wagon, supposed to be the property
of Frost, could be found, and that the wagon was the proper-
ty of another person.
Upon this evidence, the court charged the jury, that if the
evidence adduced by the plaintiff was all true, the action was
misconceived, and should have been case ; and in the pre-
sent action the plaintiff could not recover. Thereupon the
plaintiff's counsel asked leave to withdraw the cause from the
jury, take a non-suit, and except to the ruling of the court
according to the statute, which was granted ; and the fore-
going facts and charge are presented to this court by bill of
__ JUNE TERM, 1847. 201
f Crumpton v. Newman.
exceptions a judgment having been rendered against the
plaintiff for costs.
B. F. POUTER and F. H. BRODIE, for the plaintiff in error,
insisted, that the warrant was a nullity, and alluded no pro-
tection to the defendant who caused it to be issued q n( j exe _
cuted. [1 Chit. PI. 211; Clay's Dig. 430, 20; 1 fiL ale > s
Pleas of Cro. 577; 2 Bla. Rep. 846.]
No counsel appeared for defendant.
COLLIER, C. J. The 20th section of the 5th chapter of
the penal code, enacts, that " if any person shall knowingly
and wilfully resist or oppose any officer of this State, in serv-
ing or attempting to serve, or execute, any legal writ or pro-
cess whatsoever, he shall, on conviction thereof, be fined-not
less than fifty, and not exceeding one thousand dollars."
[Clay's Dig. 430, 20.] It is perfectly clear, that the mere
concealment of property of a debtor, or the refusal to inform
an officer who has an execution against his estate, where it
may be found, does not amount to an offence under this sta-
tute, or at the common law. To constitute the offence of
resisting or obstructing process in a criminal point of view,
there must be an active opposition ; not merely taking charge
of a debtor's property, keeping it out of view, and refusing
when called on by an officer to place it within his reach.
This is so clear a principle of law, that it is unnecessary to
cite authority for its maintenance.
The question then is, is the warrant under which the plan-
tiff was arrested, a nullity, so that the arrest and detention
under its authority was an unlawful imprisonment? In
Duckworth v. Johnston, 7 Ala. Rep. 578, a warrant was issu-
ed by a justice of the peace, requiring the arrest of the plain-
tiff, upon the oath of the defendant, that the plaintiff " had
property in his hands, in a fraudulent condition." We there
said, that the " mere "fact that one is the custodian of proper-
ty, in fraud of the rights of others, or holds it to the prejudice
of his own, or third persons' creditors, will not subject him to
proceedings at the instance of the State." further, it must
26
202 ALABAMA.
Pickett v. Stewart.
be intended that the warrant recites the substance of the ac-
cusation, and upon this hypothesis it is defective ; for al-
though it be true, the offence is not punished criminally. In
that case, as we^ as the present, the warrant conformed to
the affidavit An & there was no variance of which the de-
fendant *ould avail himself. It was added that " the case
stafrvf in the warrant, being without the jurisdiction of the
,/ustice of the peace, it necessarily follows the warrant is void
for defects apparent on its face." Many authorities are cit-
ed by the court, from which these conclusions are deduced.
Where an injury is done to a person by the regular process of
a competent court, case is said to be the proper remedy, and
trespass is not sustainable j but where the warrant is a nulli-
ty, it should not be executed, and the party who caused it to
be issued, as well as the officer who acted under its authori-
ty, are liable in trespass to the party arrested.
The case cited, is a satisfactory authority to show, that the
present action is properly conceived. We have seen that the
warrant does not disclose an offence known to the law. It
it had merely stated that the plaintiff resisited or opposed the
execution of process, it perhaps would have been sufficient ;
but in developing the accusation it goes beyond this, and
shows that what is called a resistance of the action of the
constable does not constitute a criminal offence. The entire
proceeding indicated by the affidavit and warrant was then
coram non judice: consequently the judgment is reversed and
the cause remanded.
PICKETT v. STEWART.
1. Where a suit is brought for the use of another, on a note which, at the
trial, appears to be indorsed in blank by several indorsers, and also by the
nominal plaintiff, the several indorsements may be filled up at the trial, BO
JUNE TERM, 184T. 203
Pickett v. Stewart.
as to correspond with the declaration, and that of the nominal plaintiff
stricken out.
Writ of Error to the Circuit Court of Lawrence.
DEBT by Stewart, suing for the use of Thompson, as the
indorsee of a promissory note, against Pickett, as one of the
firm of Pickett & Barker, its makers. The defendants plead-
ed several pleas, to which demurre'rs were sustained, but
which are unnecessary to be noticed here, as the defendant
does not raise any point upon them in his brief.
At the trial, the plaintiff offered in evidence the note des-
cribed in his declaration, on which, were the following in-
dorsements, in blank, to wit : Stephen Pickett, Picket,
Barks & Co., Wm. Stewart, (the plaintiff.)
The court sustained the defendant's objection to reading
the note, and the plaintiff then proposed to fill up the two
first indorsements, so as to correspond with the allegations of
the declaration. Also, to strike out the indorsement of his
own name, This was allowed against the defendants ob-
jection, who thereupon excepted.
The striking out of this indorsement, and the sustaining
the demurrers to the pleas, is now assigned as error.
COOPER, for the plaintiff in error, insisted, that by the blank
indorsement of Stewart, the legal interest in the note passed
to Thompson, the holder, and the action should have been
in his name, instead of being for his use. The suit being
for the use of Thompson, estops the plaintiff from insisting
the note was returned. [Chitty on Bills, 230 ; Johnston v.
English, 1 Stewart, 169; Bowie v. Duvall, 1 G. & J. 175; .
Hunt v. Stewart, 7 Ala. Rep. 525, and cases there cited.]
No counsel appeared for the defendants in
GOLDTH WAITE, J. The distinction between this case
and those of Johnston and English, 1 Stew. 169, and Hunt
v. Stewart, 7 Ala. 525, is, that here the indorsement is in
204 ALABAMA.
Pickett v. Stewart"
blank, whilst in those, it was filled up to the identical person
for whose use the suit was instituted. The decisions pro-
ceed on the ground, that the indorsements vested the legal
interest in the note in the person named, and the suit being
for his use, rebutted the presumption which otherwise would
arise from finding the note in the hands of the indorser.
Here there is nothing to rebut the presumption, that the note
has been returned to the indorser, unless it is that the suit
is for the use of another, who for ajiy thing which appears, is
a stranger. In a very early case, the general commercial
rule is recognized that a note may be sued in the name of one
who appears on its back as indorser, and the presumption a-
rising from finding the note again in his possession, is said to
be, that the indorsement was made to facilitate collection, or
for some other purpose, and that the note had been returned
to the owner. [Pitts v. Keyser, 1 Stew. 154. To the
same effect is Dugan v. U. S., 3 Wheat. 182.] It must be
conceded there is no very clear, or well defined line of dis-
tinction between these cases, but we think, as the whole no-
tion against the right of the holder of the note to bring the
action against the prima facie intendment arising out of the
indorsement to another, rests on presumption, it would be
well to adhere to the one class or to the other. The present
case does however present a broad ground for a distinction, as
the indorsement is in blank, and the holder has the legal
right to strike it out, or fill it up, as he chooses. No one can
interfere with this right, and therefore the objection to his
doing so, becomes a mere technical objection.
We think the circuit court committed no error in allowing
the indorsements to be filled up, and that of the plaintiff
stricken out at the trial.
Judgment affirmed.
JUNE TERM, 1847. 205
Simerson v. The Branch Bank at Decatur.
SIMERSON v. THE BRANCH BANK AT DECATUR.
""*'
1. A purchase made under a decree in chancery, foreclosing a mortgage, is
prima fade valid, against a subsequent judgment creditor of the same
debtor. But if the debt of the subsequent judgment creditor, existed at
the time of the rendition of the decree in chancery, under which he
claimed, the onus is cast on him of showing, that the decree was ren-
dered for a debt due from the debtor to the complainant, he being also the
purchaser.
2. The retention of possession by the mortgagor of personal property, after
the law day has passed, is not necessarily a badge of fraud. If the pro-
perty be suffered to remain with the mortgagor, by the mortgagee, a con-
siderable time, it is a circumstance from which fraud may be inferred, if
not satisfactorily explained. If he proceeds with reasonable diligence to
foreclose his mortgage, no presumption whatever of fraud arises from the
fact, that whilst the proceedings are in progress, the property is suffered
to remain with the mortgagor.
3. Where there has been a public sale of personal property, the purchaser
may leave it with the former owner, upon a contract, or from motives of
benevolence, and if the act is bona fide, it will not be liable to the debts
of the former owner.
Error to the Circuit Court of Mobile.
TRIAL of right of property, in which the plaintiff in error
was claimant. The bank obtained judgment at the Septem-
ber term, 1845, of Mobile circuit court, against G. Lyon and
James W. Roper, upon which a fi. fa. issued, which was le-
vied upon two slaves, Patrick and Miles, as the property of
Roper, and a venditioni exponas issued on the 30th October,
1846, directing the sheriff to sell the slaves, when the plain-*
tiff in error interposed his claim.
The plaintiff, to establish his case, gave evidence conduc-
ing to prove, that the slaves levied on were in possession of
Roper at the time of the levy, and had been for many years
previous.
The claimant then produced a copy of the record, and pro-
ceedings of a suit in chancery, between himself and Roper,
commenced in March, 1843, for the foreclosure of a mortgage
206 A i, \IUJ\yu_
Simereoji v. 1? tie Branch Bank at Decatur.
made by Roper, to indemnify him as a surety. The bill set
forth the mortgage, that the claimant had paid the notes spe-
cified therein, and praying a foreclosure and sale. The an-
swer of the defendant Roper, confessing the allegations of
the bill the evidence of the debt due the complainant the
master's report, and decree of sale the sale in March, 1844,
pursuant to the decree, and a purchase of the slaves by the
complainants; a deed from the master, and confirmation by
the chancellor.
He also produced the mortgage executed by Roper, the
20th September, 1841, made to secure the claimant, and J.
B. Hogan, as his sureties for the payment of certain debts,
which are thus described in the mortgage : Note for $4898,
due June 3, 1842; one for $1141 82, due 4th May, 1842;
one for $2167, due 9th December, 1841, and a note for
$2700, due 28th November, 1841. Upon these notes the
deed recites, that the claimant and Hogan were sureties.
The claimant also read in evidence, a power of attorney,
made in January, 1844, constituting Roper his general agent
in Mobile, and proved that he resided about forty miles from
Mobile, and that the slaves levied on, worked with others at
a brick yard, included in the mortgage, and sold under the
.same ' decree, and at a very short distance from Mobile, and
that for a short time, during the summer of 1844, a person
was employed by the claimant, to superintend the slaves at
the brick yard.
It was proved that one of the slaves levied on, had been
for a short time after the sale in the employ of the claim-
ant to build a chimney for him. There was no evidence
that the claimant had exercised any control over the slaves,
or that they ever were in his possession, until after the sale
by the master in chancery, or that they ever were withdrawn
from his control, before the sale ; but the proof conduced to
show, that they remained in his possession. There was np
evidence that the slaves had been in the possession of the
claimant, after the master's sale, except the slave previously
referred to.
There was no evidence of the bona fide character of the
debts mentioned in the mortgage, except the recitals in it,
the proceedings in the court of chancery, and the evidence
TEKM, 1847. 207
Simerson v. The Branch Bank at Decatur.
of debt there filed. It was proved, that the brick yard was
very near the residence of Roper, that he had managed it for
several years, controlling the yard, and delivering the brick, to
those who purchased them ; the claimant being seldom at
the yard. Roper had been insolvent for many years.
The court charged the jury, that in cases of absolute sales
of personal property, where the possession remained in the
vendor unexplained, and he continued to control the proper-
ty, the law presumed fraud ; and that the law was the same
in the case of a mortgage of personal property, after forfei-
ture of the mortgage ; that if after the forfeiture, the mortga-
gor remained in possession of the property, controlling and
using it, the law presumed fraud until such possession was
explained ; and if not explained, and he was in failing and
insolvent circumstances, such possession was conclusive evi-
dence of fraud.
That if the possession of the mortgagor from the time of
the forfeiture of the mortgage, to the time of foreclosure, had
been accounted for, it was not necessary to account for the
possession after the foreclosure, and sale, if the sale was pub-
lic, and the proceedings in chancery and the sale bona fide.
At the request of plaintiffs counsel, the court further
charged the jury, that in order to make the mortgage availa-
ble, against the plaintiff, it was necessary the jury should be
satisfied, it was executed for a good consideration ; that the
recitals of the deed itself, coupled with the production of the
promissory notes therein mentioned, was not sufficient evi-
dence of a consideration, but that the claimant should show
by other evidence, that the responsibility incurred by him, for
defendant, was actual and bona fide. *
The court also charged, that if the claimant purchased the
slaves, at a fair sale by the master, for a valuable considera-
tion, the fact that they remained in the possession of the de-
fendant in execution, after the sale, was no evidence of fraud.
But although there might have been such a sale, yet if it
was shown that the defendant in execution, prior to the sale,
and between the forfeiture of the mortgage and the sale, had
remained in undisturbed possession of the property, it was
presumptive evidence of fraud, the law casting the onus upon
the complainant, of repelling the presumption, and showing
208 ALABAMAf ^
Simerson v. The Branch Bank at Decatur.
that it was fair, and bona fide ; and if this was not done, the
presumption was conclusive.
These matters were excepted to, and are now assigned as
error.
CAMPBELL, for plaintiff in error. 1. The plaintiff in error
contends, that holding, as he does, a conveyance of the slaves
claimed under a decree of sale, rendered by the court of chan-
cery of a date prior to the levy and of any evidence of debt
against the defendadt in execution, submitted to the jury >
teat he was not required to support the decree by evidence of
the bona fides of the transaction on which it was founded.
That this proposition is true, although the suit in chancery
was between the claimant and defendant in execution.
[Goodgame v. Cole & Co., at this term ; 5 Pick. 388; 4 ib.
460 ; 1 Stark. Ev. 241-2.]
2. That the retention of the slaves by the mortgagor, after
the law-day had passed, though unexplained and though
no proof of the consideration of the mortgage was given, ex-
cept the acknowledgments of the mortgagor, aud the produc-
tion of the evidences of debt specified in it, was not conclu-
sive evidence of fraud in the sale of the master, and did not
vitiate his conveyance all these transactions taking place
before the levy, or the contract between the plaintiff in exe-
cution and the defendant. [Bartlett v. Williams, 1 Pick.
288 ; Sydner v. Gee, 4 Leigh's R. 535 ; 2 Mason, 252.]
3. That a public sale of slaves by the master in chancery,
for a fair and valuable consideration, is not vitioted by the
fact, that prior to the sale, and between the sale and the law-
day of the mortgage on which the decree of sale was founded,
possession remained with the mortgagor. [4 N. H. 469 ; 3
Met. 332.]
4. That an execution creditor, whose execution came to the
hands of the sheriff two years and more after such a sale, and
is founded upon a judgment eighteen months after, and who
gives no proof of his debt, cannot avail himself of the fact
that possession remained with the mortgagor between the
law-day and the sale it being conceded, as it is, in the in~
struction given, that the sale by the master was for a fair and
! g|
TERM, 1847. 209
Simerson v. The Branch Bank at Decatur.
valuabe consideration, and public and bonajide. [Good-
game v. Cole & Co., above cited.]
5. That the court was not authorized to reject the evi-
dence of the notes described in the mortgage as produced
by the claimant, and the admissions by the defendant in exe-
cution ^hat the liability of the claimant was for his accom-
modation, it appearing that the admissions were made long
anterior to the debt of the plaintiff. The production of the
notes by the claimant, was prima facie evidence that he had
paid them. On some of these notes he was an indorser.
6. A suit for a foreclosure of a mortgage, brought to the
first court after the forfeiture, and prosecuted to a decree and
sale, with all possible expedition, repels the presumption of
fraud that arises from the possession of the mortgagor after
the law day. These facts being apparent from the record,
the charge of the court was erroneous on that point. [7
Dana, 225.]
7. That no legal presumption of fraud arises from the pos-
session of the mortgagor, after a suit has been commenced
for a foreclosure of the mortgage, unless the jury should find
the suit to have been collusively conducted. The court has
no right to assume that as a fact in the case, and to require
extrinsic evidence of fairness.
8. The effect of the decree and sale, was to establish a
debt, a condemnation of the property of the debtor, and its
transfer to the claimant. The plaintiff in execution shows
no better evidence of his claim. To condemn property held
under such proceedings, the burden rests upon the plaintiff
in execution to establish fraud in the decree and the sale 3
and the claimant is not required to establish its integrity.
The fact that the defendant to the decree was in possession
at the date of the sale and prior to its execution, is not con-
clusive evidence of fraud in the absence of such proof,
f Wads worth v. Havens, 3 Wend. 411.]
9. Possession of property by the defendant in execution
since the sale, is not evidence of fraud, the sale being public
and notorious. [Watkins v. Birch, 4 Taunt. 823 ; Joseph
v. Ingraham, 8 Id. 338 ; Latimer v. Batson, 4 B. &, C. 652 ;
Leonard v. Baker, 1 M. &/ S. 251; Laughlin v. Ferguson, 6
Dana, 118, and cases cited; 4 Porter, 252.]
27
210 ALABAMA.'
Simerson v. The Branch Bank at Decatur.
LESESNE, for defendant in error.
1. The charges of the court to the jury, under the facts in
evidence, are correct as to the effect of possession. [Hobbs
v. Bibb, 2 Stew. R. 54; Ayres v. Moore, Ib. 336; P. & M.
Bank v. Borland, 5 A. R. 531; Borland v. Mayo, 8 Ib. 104;
Edwards v. Harbin, 1 D. & E.]
2. Retention of possession after mortgage forfeited, is the
same in its effect to create the presumption of fraud, as after
an absolute sale. [Edwards v. Harbin, above cited ; 1
Smith's Leading Cases, p. 1 ; Wiswall v. Ticknor & Day, 6
A. R. 178.]
3. The temporary employment of Coxe to superintend the
property, had no purgatory effect upon the fraudulent posses-
sion. Nor the temporary employment of one of the slaves.
[Edwards v. Harbin, above cited.] Joint possession even by
the vendee with the vendor is merely colorable. [ Wordell v.
Smith, 1 Campb. 332.]
4. The court correctly charged the jury, that the consid-
eration must be proven by extrinsic evidence. The transac-
tion had been impeached by evidence creating a presumption
of fraud, and even as against a subsequent creditor, it was
necessary to remove the badges of fraud by proof of consid-
eration. [2 Leigh R. 29 ; Goodgame v. Cole & Co. at
the present term of this court.]
5. The fact that there had been a foreclosure and sale, did
not dispense with the necessity of explanatory proof, or proof
of consideration. These proceedings are not evidence against
a stranger. [1 Stark. Ev. pt. 2, p. 369, Note 1, and case
tfcere cited.]
6. The evidence showed that Roper had been insolvent
for many years ; this imposed the necessity of showing the
consideration. [2 Leigh R. 29, above cited ; 5 A. R. 9 ; 5
Pick. 388.]
7. The onus of proving that the debt arose before the
mortgage was made was on the claimant, first, because the
proof had impeached it as fraudulent. [Cases last cited.] It
is incumbent on the party relying upon a title thus impeach-
ed, to show the admissions on which he relies. In this
case the title itself arose before the debt of the plaintiff in
execution.
JUNE TERM, 1847. 211
Simerson v. The Branch Bank at Dec^tur.
8. The statute of 1845 (pamphlet acts, p. 136) is conclu-
sive against such evidence. The law is levelled at the state-
ments, not the person of the mortgagor. To admit his state-
ments, while he is in person incompetent to testify, would
involve a plain absurdity in the administration of justice.
J0. The case at bar is distinguishable from Goodgame v.
Cole & Co. 1st. In the fact that the admission there was
made before any sale took place to the claimant. 2d. In the
fact that it is the fraudulent deed which in the case at bar
is relied upon as proving its own consideration, in the face of
the facts impeaching its bona fide character.
10. The cases cited by the plaintiff in error show that the
mere fact of a judicial sale does not of itself divest a fraudu-
lent possession of the character affixed to it by law. [Leo-
nard v. Baker, 1 M. & S. 251; Latimer v. Batson, 4 B. & C.
652, and the case from 4 Taunton are examples.]
ORMOND, J. The title of the claimants, is a purchase
of the slaves in controversy, in March, 1844, upon a sale made
upon a decree in chancery, rendered in his favor v. Roper.
The title of the bank rests upon a levy made upon the same
slaves, in November, 1846, upon an execution issued upon
a judgment, obtained in September, 1845. It is evident
from this statement, that as these parties derive their title
from the same source, that of the claimant being prior in point
of time, and of the same grade, with that of the plaintiff, is
on its face the better title. Nor does this appear to have
been directly controverted in the court below. The contest
there, appears to have tften, upon whom the burthen of proof
was cast, to prove the consideration of the respective judg-
ments.
The claimant, it appears, produced the mortgage, which
was the foundation of the decree under which he claimed,
and the notes recited in the mortgage, arid insisted, they were
prima facie evidence of the truth of the facts recited in them,
as an admission of Roper, the common debtor of both the
parties. The court required him to go further, and prove
the fact, that the indebtedness actually existed, and had been
discharged by the claimant, as surety, so as to entitle him to
foreclose his mortgage.
212 ALABAMA.
Simereon v. The Branch B;uik at Decatur.
In the actual posture of the case, this was error in the
court below. It does not appear, that when the claimant ob-
tained his decree against Roper, the debt upon which the
bank afterwards obtained a judgment against Roper, exist-
ed ; and assuming that the debt did not exist until after-
wards, the decree was evidence, prima facie, that the fflfcts
upon which it was founded existed. If the bank had shown,
that at that time it was a creditor of Roper, trie-onus would
then have been shifted to the claimant, who would have
been required to show, that his decree was founded upon a
debt actually due to him from Roper. This is the principle
to be extracted from the case of Goodgame v. Cole Sf Co., at
the present term,
The case of Blow v. Maynard, 2 Leigh, 49, decides nothing
adverse to the principle settled in that case. The question
there was, as to the effect, of a recital in a deed, by one in-
debted at the time, and by which he conveyed his property
to a member of his family, and the court held, that where
this deed was set up, against one who represented a party,
who was a creditor long anterior to the making of the deed,
that the recital in the deed, was not evidence of the conside-
ration there expressed. The admissibility of such testimony,
under such circumstances, is not countenanced by the case of
Goodgame v. Cole& Co.
It was doubtless also competent for the bank to impeach
the decree, under which the claimant deduced his title, for
fraud between him and Roper. The principal fact relied on
to prove the transaction between Roper, and the claimant
collusive, was the retention by Roper of the slaves after the
forfeiture of the mortgage ; ane the exercise of ownership by
him, over the property. Upon this point, the court in sub-
stance charged the jury, that the retention of possession by *
the mortgagor, after the law day had passed, was precisely
equivalent in its effects, to the vendor remaining in posses-
sion, after an absolute sale of personal property. This charge
cannot be supported. There is a plain, and obvious distinc-
tion between the two cases. The purpose of a mortgage, is
the security of a debt, and not the sale of property. Although
as a consequence of the mortgage, the property may be sold
for the payment of the debt. But that is not the primary in-
JUNE TERM, 1847. 213
Simerson v. ThfTBranch T3ank at Decatur.
tent of the parties, and the design being to secure the pay-
ment of a debt, and not to sell the property, there is not the
same inconsistency in leaving it with the mortgagor, even
after the forfeiture of the mortgage, as in the case of an ab-
solute sale, purporting to transfer both the title and posses-
sion. *tf)oubtless the retention of the possession by the mort-
gagor, for any considerable portion of time, with the assent
of the mortgagee, after the forfeiture of the mortgage, would
be a circumstance from which fraud might be inferred, if not
satisfactorily explained. But where the mortgagee proceeds
with reasonable diligence, to foreclose his mortgage, no pre-
sumption whatever of fraud arises from the fact, that whilst
the proceedings are in progress, the property is suffered to re-
main with the mortgagor, as that is entirely consistent with
the object of the mortgage the security of the debt. If
proceedings are not commenced within a reasonable time to
subject the property to the payment of the debt, it then de-
volves on the mortgagee to show, that his conduct is consis-
tent with fair dealing. The law was thus ruled in Willis
v. The P. & M. Bank, 5 Ala. 781, where the general lan-
guage employed by the court, in Magee v. Carpenter, 4 Id.
475, is restrained and limited.
The fact, that the mortgagor was suffered to retain the pos-
session after the foreclosure of the moitgage, and sale under
the decree, stands upon different principles. The notoriety
of a public sale, which by giving notice to the public, that
the title has passed out of the former owner, and thereby pre-
vents him from obtaining a delusive credit, from the appa-
rent ownership of property, which belongs to another, cre-
ates a distinction, between public and private sales, where
there is no change of possession, as to the rights of creditors.
[K!ild v. Rawlinson, 2 B. & P. 59 ; Watkins v. Birch, 4
Taunton, 823 ; Joseph v. Ingraham, 8 Id. 338 ; Leonard v.
Baker, 1 M. & S. 251 ; Latimer v. Batson, 4 B. & C. 652;
Bank of Alabama v. McDade, 4 Porter, 266 ; Abney v. Kings-
land, 10 Ala. 363.J
In Latimer v. Batson, supra, the law is thus summed up,
by Mr. Justice Bayley, as the result of the adjudged cases:
" That if goods seized under an execution, are bona Jide sold,
and the buyer suffers the debtor to continue in possession of
214 ALABAMA
Branch Bank at Mobile v. Tillman.
the goods, still they are protected against subsequent execu-
tions, if the circumstances under which he has the possession
are known in the neighborhood. The jury in this case, were
therefore properly directed to give their verdict for the plain-
tiff, or defendant, according as they should be of opinion,
that the transaction was fair or fraudulent." This is clear,
and intelligible, and is doubtless the law upon this subject.
In the case then, of a public sale of goods, the purchaser may
leave them with the former owner, upon a contract with him,
or from mere kindness or benevolence, and if this conduct is
bonajide, and is not intended to delay, hinder or defraud cre-
ditors, he will hold the property against the other creditors
of the debtor.
In Kidd v. Rawlinson, supra, Lord Eldon lays stress upon
the fact, that Kidd, the purchaser, was not a creditor. In
Watkins v. Birch, supra, Gibbs, Justice, asserts, that this
makes no difference, if the creditor takes a regular bill of
sale from the sheriff. In our judgment, the only difference
in such a case would be, that the creditor, being also a pur-
chaser at execution sale, would be required to establish the
justice of the debt, against one not a party, or privy to the
judgment, under which he claimed title.
Reversed and remanded.
f
BRANCH BANK AT MOBILE v. TILLMAN.
1. An action may be brought on a lost negotiable note, which had not been
negotiated at the time of the loss.
2. The statute authorising suits to be brought on lost bonds, notes, &c., and
requiring an affidavit to be made of the loss, is cumulative, and was not
intended to repeal any remedy which previously existed. It is therefore
competent to prove by other competent testimony, the loss of an instru-
JUNE TERM, 1847. 215
Branch Bank at Mobile v. Tillman.
merit on which suit is brought, be the effect of the affidavit, when made
under the statute, what it may.
Writ of Error to the County Court of Sumter.
THIS was an action of assumpsit, at the suit of the plain-
tiff in error, on two promissory notes, payable and negotia-
ble at the Branch of the Bank of the Stata of Alabama at Mo-
bile, which the declaration alledges to be lost, but still due
and unpaid. A bill of exceptions was sealed at the instance
of the plaintiff, from which it appears that the court refused
to admit any secondary evidence of the notes, because an af-
fidavit, such as the statute requires, was not made of their
loss. Whereupon the plaintiff took a non-suit, and excepted
to the ruling of the court.
M. F. HOIT, for the plaintiff in error, cited Clay's Dig.
326, 76 j 381, $ 6 ; 382, 9 ; 2 Root's Rep. 126, 144 ; 3
Stewt. Rep. 31; 3 Cow. Rep, 303; 10 Johns. Rep. 104;
1 Ves. Sen'r Rep. 341 ; 16 Ves. Jr. Rep. 430 ; 2 Greenl. Ev.
$156.
A. R. GATES, for the defendant in error, cited Clay's Dig.
381/Y 6; 382, $ 9 ; 3 Stewt. Rep. 31 ; 6 Porter's Rep. 166;
2 Greenl. Ev. 156.
COLLIER, C. J. Mr. Greenleaf, in the section which the
counsel have cited, says, if a bill or other negotiable securi-
ty be lost, there can be no remedy upon it at law, unless it
was in such a state when lost, that no person but the plain-
tiff could have acquired a right to sue thereon. Otherwise
the defendant would be in danger of paying it twice, in case
it has been negotiated. Therefore, wherever the danger of
a double liability exists, as in the case of a bill or note, either
actually negotiated in blank, or payable to bearer, and lost or
stolen, the claim of the indorsee or former holder has been
rejected. But if there is no danger that the defendant will
ever be liable on the bill or note, as if it be proved to have
been actually destroyed, while in the plaintiff's own hands,
216 ALABAMA.
Branch Bank at Mobile v. Tillman.
or if the indorsement was specially restricted to the plaintiff
only, or if the instrument was not indorsed, or has been giv-
en up by mistake, the plaintiff has been permitted to recov-
er upon the usual secondary evidence. See also the citations
in the notes by the author on the same page. In Chaudron
v. Hunt & Norris, 2 Stew. & P. R. 31, it was held to be suffi-
cient for the declaration to alledge that the note on which the
recovery was sought, was lost, and still unpaid, without aver-
ring that it was not indorsed when it was lost, or whether it
was lost before or after its maturity.
It is however insisted, that the law in respect to the reme-
dy upon lost notes, has been so modified by the act of 1828,
" regulating judicial proceedings," as to require an affidavit
to be made of the loss, as a pre-requisite to the institution of
the suit. [Clay's Dig. 382, 9.] The section relied on,
and the preamble of the act are as follows : " Whereas, there
hath been much uncertainty in the decisions of the courts of
this State, respecting the manner in which persons may bring
suit upon any bond, bill, note, or other instrument in writing,
which may be the foundation of such suit, and which bond,
bill, note or other instrument may have been lost ; for reme-
dy whereof: Be it enacted, tyc. That when any person may
have, or own, or may have had or owned, any bond, bill, note,
agreement, or other instrument in writing, the right or title
to the same remaining in him, her or them, and. the same
shall be, or shall have been, destroyed by fire, or lost by ac-
cident, such person or persons shall be authorized, upon first
making oath in writing of the loss of such bond, bill, note,
agreement, or other instrument, and that the same has not
been paid, satisfied or discharged, to sue at common law, for
and recover upon the same, upon making proof of the con-
tents of such bond," &c. &c. The preamble of this enact-
ment indicates its true meaning, too clearly to be misappre-
hended, viz : to provide a certain remedy at law, for parties
who have lost the written evidence of any debt or duty
the necessity for which is affirmed to be the uncertainty in
the decisions of the courts of this State upon the subject. In
this view it must be regarded as furnishing a cumulative re-
medy, and not as repealing or annulling all others which
JUNE TERM, 1847. 217
IJickson, Jr. v. Briggs.
were previously recognized at law. It employs no negative
or exclusive terms, either expressly or by implication, and
according to established principles of construction, effects
nothing else than to furnish an additional remedy while it
leaves all others that are consistent with it, in full force.
Whether, if the notes in controversy purported on their
face to have been given in consideration of the purchase of
part of a sixteenth section, (as it is said they did,) it would
have been competent for the plaintifTto have passed the legal
interest in them by an indorsement, we need not inquire. It
is not pretended that they were negotiated^ and the mere fact
of their being negotiable, does not affect their right to main-
tain the action.
Whatever may be the effect of the affidavit when made as
the statute directs, we cannot doubt but it is altogether com-
petent to prove by other evidence, at the trial, the Joss of an
instrument on which snit is brought. It therefore follows,
that the judgment of the county court is reversed, and the
cause remanded.
-r
DJCKSON, JR. v. BRIGGS.
1. The condition of a bond reciting that the title to a lot of land is in dispute,
and stipulating that the obligor shall satisfy that dispute, and keep the
obligee, his heirs, &c. in possession forever, and pay him all such dam-
ages as he may sustain by the pretended claim set up to the lot, is to be
construed as a covenant to satisfy the outstanding incumbrance, or re-
move the outstanding title, as the case may be, within a reasonable time;
and if not so done by the obligor within a reasonable time, the obligee
may pay the incumbrance, or remove the outstanding title, and have his
action on the bond for indemnity.
2, Where the disputed title covenanted to be satisfied, consists in the claim
28
218 ALABAMA.
Dickson, Jr. v. Briggs.
of a former vendor, for notes given by a former purchaser, to whom no
deed was executed, these notes constitute a lien, which the obligee may
remove on the default of the obligor, and recover the sum paid, by action
on the covenant
Writ of Error to the County Court of Franklin.
COVENANT by Briggs, against Dickson, on a bond, the con-
dition of which recites that Dickson had sold and conveyed
to Briggs two lots of land in Russellville, Nos. 188 and 189,
for the sum of $200, on which is situated a two story brick
building, and for which Dickson had executed to Briggs a
deed in fee simple "the title to one of said lots is in dis-
pute" and then provides : " Now if the said Dickson shall
satisfy that dispute, and keep the said Briggs, his heirs, &c.
in possession forever, and shall pay said Briggs all such dam-
ages as he may sustain by the pretended claim set up to said
lot," then, &c. The breach assigned is, that the defendant
has not satisfied that dispute, by means whereof the said
plaintiff, before suit brought, was forced and obliged, and did
necessarily lay out and expend large sums, &c. in and about
satisfying the dispute to the title to one of said lots. The
defendant demurred, but his demurrer being overruled, he
then pleaded non infregit conventionem, on which issue was
joined.
At the trial, the plaintiff, after putting in evidence the bond
and the deed recited or referred to in the condition, showed
that the defendant purchased the lots sold him from one Mi-
chael Dickson that Michael Dickson purchased the lot from
the county of Franklin that no deed was executed by the
commissioners' court to Michael Dickson that Michael
Dickson gave his notes for the purchase money and took pos-
session two of these notes for $85 remaining unpaid, it was
agreed between the county commissioners and the plaintiff,
that these notes should be delivered to the latter upon his
paying $100, and this being done, they transferred to him all
liens on the said lots, created by the giving of these notes.
He also proved that these notes had never been paid by Mi-
^ JUNE TERM, 1847. 219
Dickson, Jr. v. Briggs.
chael Dickson, and that the defendant was advised by the
plaintiff before he took them up.
The defendant then proved that Michael Dickson was sol-
vent, and had some years before removed to Mississippi,
where he resided at the time of the trial.
On this state of proof, the court charged the jury, that if
any part of the purchase money was due from Michael Dick-
son for the lot purchased by the plaintiff of the defendant,
then this was such a legal incumbrance on the lot as the
plaintiff was authorized to discharge, and its payment would
entitle him to his action on the bond.
The defendant requested the court to charge, that the cu;-
cumstances in proof did not warrant a recovery. This being
refused, the defendant excepted.
He now assigns the overruling of the demurrer, and the
rulings at the trial as matters of error.
NOOE, for the plaintiff in error, insisted
1. Under the covenant, no action will lie until eviction,
and the plaintiff was not authorized to purchase in the out-
standing equitable incumbrance. [7 Ala. Rep. 487j 9 Ibid.
179.]
2. The proof does not show that any one disputed the
plaintiff's title or possession.
COOPER, contra, contended
1. The bond is in legal effect a covenant to remove incum-
brances, and the defendant being advised of that existing
here, was bound to remove it. [9 Ala. Rep. 179; 2 Lomax
on Real P. 273.J
'1*
GOLDTHWAIJE, ; J. 1. The questions raised by the
demurrer, and by tflte proof at the trial, are slightly different,
yet sufficiently similar to enable us to consider them together.
The demurrer in effect denies there is any cause of action un-
til the plaintiff has been disturbed or evicted from the posses-
sion ; and the request for the particular charge insists the
plaintiff's payment of the debt due from the former purchaser
is not to be answered by the damages in this suit. If the le-
gal effect of the covenant in this case, is one for quiet enjoy-
26 ALABAMA. ^
"Dickson, Jr7v7 Btigge.
toent only, it is quite probable there Would be nb breach
without some disturbance of the possession, and it maybe
the declaration should then contain averments of something
Equivalent to eviction. [Platt on Cov. 320 ; 2 Lomax Dig.
269; Caldwell v. Kirkpatrick, 6 Ala. Rep. 60; Banks v.
Whitehead, 7 Ib. 83.] It seems to us, however, that when
the defendant stipulates he will satisfy the dispute respecting
the title which the bond admits to exist, this must receive
the same construction as a covenant to remove incumbrances,
or a covenant that the estate is free from incumbrances. It
will be seen the other covenants extend fully to quiet enjoy-
pient, and for indemnity in case of eviction. The only ob-
ject, then, for inserting the stipulation to satisfy the dispute,
must have been to bind the party to remove the dispute from
the title. It is well settled, that a covenant that premises
are free from incumbrances, is broken immediately on th*
execution of the deed, if there are any such then on the land,
and that the grantor need not wait to be evicted, but njay
extinguish them and call on the grantor for indemnity.
[Prescott v. Truman, 4 Mass. 627; Delavergne v. Norris, 7
Johns. 358; Duval r. Craig, 2 Wheat. 45.] There is no
reason why a less beneficial construction should be given to
a Contract to remove an incumbrance. Certainly the pur-
chaser ought not to be prejudiced by the vendors allowing it
to remain for an unreasonable length of time. In our judg-
ment, such a stipulation as is found here requires the cove-
nanter to remove it within a reasonable time, and upon his
default to do so, the purchaser may himself remove the
<jause of dispute, and require indemnity from the covenanter
by suit on the bond.
>
2. The evidence shows the defendant derived his title to
the lot by deed from one who purchased from the commis-
sioners of Franklin county, but to whoffrrio conveyance wa*
executed on behalf of the county, and that two of the notes
given by this individual for the purchase money, were \iti-
paid and outstanding. The effect of this is, that the legal
title remained with the county, and could have been exerted
against the obligee, at least to the extent of enforcing a lien
upon the lot for the unpaid purchase money. If, instead of
enforcing the title of the county to the lot, the commission-
JUNE TERM, 1847. 221
Aikin v. Bloodgood.
ers were willing to relinquish it on the payment of the Out-
standing notes, we think it clear, from the analogies to which
allusion has been made, the plaintiff was authorized, upon
the defendant's default, to make the necessary payment, and
resort to his action on the bond. The measure of damages
under such circumstances, is the amount reasonably expend*
ed in effecting the removal of the incumbrance.
Under these views, we consider the declaration is suffi-
cient, as it assigns the breach in the terms of the covenant ;
and that the rulings of the court at the trial are free from
eiTof.
Judgment affirmed.
AIKIN V. BLOODGOOD.
1. An action for the breach of a contract under seal, must he brought upon
the instrument itself, unles the contract has been subsequently varied by
the parties.
fc. The addition of 6ther work to a building, without any departure fr6rn the
original plan, does not change the original contract entered into. If no
price was agreed on for such additional work a quanlnnt meruit would lie
for the work so added.
3. The failure to finish the work by the time stipulated, is not a rescission of
the contract If accepted by the other party the objection is waived.
4. When a workman undertakes to do work, to be paid for in the notes of
third persons, he cannot abandon the contract, and treat it as a money de-
mand, unless the contract "has been rescinded, or he has been prevented
by the act of the opposite party, from performing it accordingto its terms.
Error to the Circuit Court of Mobile.
ASSUMPSIT by the defendant in error. The declaration
Contains the common counts, to which the defendant plead-
ed the general issue.
tfport the trial, if appeared that the plaintiff had built A
222 ALABAMA.
Aikin v. Bloodgood.
cotton warehouse, yard, wall, &c. for the defendant, furnish-
ed the materials, &c., and that the work, and materials were
worth $3200.
The defendant then produced a notice, on the plaintiff to
produce a written contract, which was produced and read to
the jury. By this contract, which was under seal, and dated
3 July, 1844, after describing particularly the work which is
to be done, it concludes, "and any thing else done, which
may be necessary, if not specified, to make the whole corres-
pond with Aikin's warehouse, on Water street before men-
tioned. Neville is to furnish all materials, and to finish the
tHiole work, by, or before the 1st October, in a workmanlike
manner. The stipulated price of the work to be paid by Ai-
kin, is two thousand dollars, of which one thousand dollars
was paid in the month of May last, for the remaining one
thousand dollars, said Aikin is to give Neville, the note of F.
A. Lacy, and R. H. Nash, indorsed by himself as follows :
One note for $333, due 1st February, 1845 ; one for $333,
due 1st March, 1845; and one for $334, due 1st April,
1845."
In witness whereof, &c. Signed and sealed by both par-
ties.
The defendant objected to any evidence by witnesses, of
any agreement for the doing of the work, other than the
contract in writing and also, objected to any evidence of
the value of the work provided for by the contract in writ-
ing, differing from the price specified therein. The court
overruled the objections, the plaintiff not having offered or
relied on the written contract, and the defendant excepted.
The plaintiff then examined witnesses to prove, that the
work was properly done, and completed, as the contract re-
quired ; and that extra work was done to the value of ninety
dollars.
The defendant proved, read and relied on the written con-
tract, and examined witnesses to prove that the work was
not done until December, instead of October that a part
was improperly done, and he had caused it to be rebuilt by
others, at a cost of $123 50. Also, that on the 21st Octo-
JUNE TERM> 1847. 223
Aikin v. Bloodgood.
ber, 1844, the plaintiff gave an order for the two last men-
tioned notes in the contract, which were accordingly deliv-
ered, and that the plaintiff had acknowledged himself indebt-
ed to him, for $188 for negro hire, from July to 1st Novem-
ber, 1844. There was no evidence of any demand made
of the note first mentioned in the written contract, or refu-
sal to deliver it.
The defendant asked the court to charge, that the plaintiff
could not recover for any work embraced in the written con-
tract, but could only recover for extra work, he might prove
he had done and had not been paid for.
That for any work specified in the contract, and done un-
der it, the plaintiff could not recover for the non-delivery of
the note first mentioned in the contract, without a demand
and refusal.
These the court refused to give, but instructed the jury,
that the plaintiff not having pleaded the contract in bar, and
not having made a tender of the note, the plaintiff could re-
cover in this action, any amount proved to be due for extra
work, and also the balance due for the work proved, not to
exceed the sum specified in the contract. To which the de-
fendant excepted, and now assigns for error.
STEWART, for plaintiff in error, cited Snedicor v. Leach-
man, 10 Ala. 330.
DARGAN, contra, cited 4 Cowen, 564 ; 5 Gill & J. 240 ; 9
Pick. 298 ; 4 Wendell, 285 ; 15 Id. 87.
ORMOND, J. Where parties by a contract under seal,
stipulated for the performance of any duty, an action for its
breach must be brought upon the instrument itself, and as-
sumpsit will not lie, unless the contract has been subsequent-
ly varied by the parties, by the introduction of new terms
into the contract, or providing a different time for its per-
formance. [McVoy v. Wheeler, 6 Porter, 201. J
We do not understand from the facts, as recited in the bill
of exceptions, that there was any change of the terms of the
written contract entered into between these parties. It ap-
pears that extra work was done, and that it was not complet-
324 ALABAMA.
Aikin v. Bloodgood.
ed until December, instead of October, as provided by the
contract. The fact that extra work was done, not called for
in the contract, is entirely consistent with the contract re-
maining in force. We do not understand from this, that
there \vas any departure from the original plan, but that oth-
er, additional work was added. This it is clear would not
change the contract, which would still remain in force, and
for such additional work, if no price was agreed on, a quan-
tum meruit would lie. Nor could the omission of the build-
er, to complete the work by the time he had stipulated, work
a change or rescission of the contract. If, notwithstanding
the work was not completed in, time, it was accepted by the
Other party, the only effect wouKl be, that he would be held
to have waived any objection to it on this score. But to en-
title the plaintiff to abandon the contract, and recover as on
a quantum meruit, he must show, either that the contract has
been rescinded, or that he has been prevented by the act of
the opposite party from performing it on his part, according
to its terms. [Liningdale v. Livingston, 10 Johns. 36.]
It also appears, that in this case, the plaintiff was not to be
compensated in money, but in certain notes, which are des-
cribed. It is quite too clear for argument, that the plaintiff
cannot, without fault of the defendant, abandon the contract,
and convert it into a money demand. Whether, if the con-
tract was rescinded by the act of the defendant, or by the
agreement of the parties, the plaintiff might not recover upon
a quantum meruit, without a demand of the note, we need
not consider, as there is nothing in the record from which we
could infer a rescission, or abandonment of the contract ; and
whilst it subsists it cannot be converted into a money demand,
without a refusal on the part of the defendant to deliver the
note. [Snedicor v. Leachman, 10 Ala, 332.]
It was not necessary that the defendant should plead the
existence of the special contract, he could take advantage of
it under the plea of non-assumpsit. Judgment reversed and
cause remanded.
JUNE TERM, 1847. 225
Coach v. Terry's 'Adm'rs.
COUCH v. TERRY'S ADM'RS.
1. A surety, who has been compelled to pay the debt of the principal, may
recover at law of a co-surety, not only his proportion of the debt, but un-
der the act of 1839, may also recover his proportion of the part of any oth-
er co-sureties shown to be insolvent. But notwithstanding this statute,
chancery has concurrent jurisdiction.
2. If the party elects his remedy in chancery, it is not necessary to make
the principal debtor, or an insolvent co-surety a party.
Writ of Error to the Court of Chancery sitting in Law-
rence county.
The complainant alledges, that on the 15th of April, 1839,
Thomas J. Couch as principal, and himself and William L.
Couch, and David Terry, as sureties, executed their writing
obligatory, by which they obliged themselves to pay to the
administrators of the estate of Daniel Johnson, deceased, the
sum of $1137 58, one day after date. On this writing a
judgment was recovered by the obligees, in the county court,
on the 19th January, 1841, against alt the obligors, (saving
the principal, who was not served with process, ) for the sum
of $1137 57, debt, $160 58 damages, and $21 37, costs of
suit. Of this judgment the sum of $985 88, was collected
by the sale of the defendant's property, on the first Monday
in June, 1841 ; and the same is now satisfied in full.
T. J. Couch, the principal, and W. L. Couch, the surety,
were insolvent, and have so continued ever since the rendi-
tion of the judgment. David Terry has died since the judg-
ment was recovered, and Drury Stovall and Samuel M. Mc-
Gaughey have taken letters testamentary on his estate.
The bill prays that Terry's executors be made defendants
thereto, that they answer the same, and an account be taken
of the amount of money paid by complainant as a co-surety
of the testator, and the interest which has thereon accrued,
and that one half the sum thus ascertained, be adjudged to
29
226 ALABAMA.
Couch v. Terry's Adm'rs.
him from the testator's estate. And that such other relief be
granted as may be appropriate to the case.
The defendants demurred to the bill, and assigned for
cause that the complainant had an adequate remedy at law,
and that Thos. J. and Wm. L. Couch, should have been made
parties to the suit. The Chancellor sustained the demurrer,
and dismissed the bill without prejudice, at the complainant's
costs.
T. M. PETERS and J. B. SALE, for the plaintiff in error. A
resort to equity was necessary to enable the complainant to
recover of the defendants the additional charge upon their
testator's estate, in consequence of the insolvency of one of
the co-sureties. The act of 1839, (Clay's Dig. 533, 12,)
does not modify the law in this respect, except where the
suit is by motion pending an action against the^surety who
makes the motion. [1 Story's Eq. 470, et seq. 492, 496
to 500 ; 5 Ves. Rep. 592.]- The remedy at law is at least
doubtful, and equity may be resorted to. ]1 Stewt. fy P.
Rep. 135.]
The act of 1839 merely furnishes a cumulative remedy,
leaving the party his election to proceed in equity, if he think
proper. The principal, and one of the sureties being insol-
vent, they need not have been made parties. [Calvert on
Parties, ch 1, 1, etseq.; Story's Eq. PI. 76, 77, 159, 161,
169 ; 2 Stew, R. 280; 3 Id. 233; 1 Stew. & P. R. 317; 2
Id. 361 ; 4 Id. 447; 5 Id. 133 ; 2 Porter's R. 351 ; 4 Id. 65;
2 Ala. R.264; 6 Id. 304.]
COLLIER, C. J. The act of 1839, " for the relief of
sureties in certain cases," provides, that when a suit may be
pending against a surety, he may give notice to any co-sure-
ty not sued, and recover a judgment against him for his pro-
portion of the debt: "Provided however, that if any of said co-
sureties are insolvent, the surety thus sued as aforesaid, may,
on said motion to be made as above, recover a judgment a-
gainst said co-surety, or sureties, thus to be notified, the
proportion which such co-surety or sureties should pay, if
such insolvent co-surety, or sureties, were not bound for
said debt, or demand." [Clay's Dig. 533, 12.] In Sher-
JUNE TERM, 1847. 287
Couch v. Terry's Adm'rs.
rod v. Rhodes, 5 Ala. Rep. 683, it is said, " At common law,
one surety who was compelled to pay the debt, could only
recover from another surety an aliquot part, or that sum
which is produced by a division of the debt actually paid by
the number of the sureties, without regard to their solvency.
But the rule in a court of chancery is, to divide the loss equal-
ly among the solvent sureties. This equitable rule has been
made the rule at law by a statute of this State." The enact-
ment to which the court had reference is that from which we
have quoted above.
The right of one surety to sue a co-surety is consequent up-
on the payment of the debt for which they were both bound;
and the remedy by action in the usual form is not impaired
by the legislature having prescribed a summary remedy by
notice and motion. [Roberts v. Adams, 6 Porter's Rep.
361.]
In Young v. Clark, 2 Ala. R. 264, it was decided, with re-
ference to the act of 1839, that where there are five sureties
to a note, three only of whom are solvent, and the holder of
the paper sues one who is solvent with one who is insolvent,
the solvent surety may move against the other solvent sure-
ties, and recover of each one third of the sum for which judg-
ment is rendered against him : Further, the statute applies
as well to contracts then in existence as to those made in fu-
ture : Also, that the motion may be made either at the term
when judgment is rendered in favor of the holder of the secu-
rity, or at any subsequent term ; that he is as much entitled
to, and more in need of relief when he has actually paid
the debt secured, than when only in danger of being com-
pelled to do so.
Thus we see, that independently of the statute, one surety
may sue his co-surety in the ordinary form of action, after he
has paid the debt for which they were both liable, though
he could only recover of him an amount proportioned to the
number of sureties, without reference to their solvency.
That to entitle him to recover for the proportion of the insol-
vent sureties, he was bound to institute a suit in equity. It
was this inconvenience which it is said in Sherrod v. Rhodes
is remedied by the statute cited, that authorizes a court of
law to administer the same justice that was previously ob-
228 ALABAMA.
Couch v. Terry's AdinVs.
tainable. We are aware that what is there said, can hardly
be considered as a point adjudicated, yet the previous decis-
ion of Young v. Clark shows, that the act shall not receive
a literal construction, where it would defeat the intention of
the legislature ; and that the remedy by motion will lie after
the surety who has been sued, has satisfied the judgment
against him. It certainly does not require greater liberality
of interpretation than was indulged in the case last cited, to
sustain the decision in fifth Alabama Reports; and if the one
comes within the equity of the statute, of which we have
no doubt, we think it may be assumed that the other does
also. We cannot perceive of a single reason which would
require the application of a different rule of damages where
the proceeding is by motion, than if an action of assumpsit
were prosecuted. This view may suffice to show, that the
complainant had a remedy at law, in which, for any thing
appearing to the contrary, he could have obtained all the jus-
tice he seeks.*
It is certainly a rule of very general application, that where
a party has an adequate remedy at law, he shall not be allow-
ed to seek redress in equity. The right to sue in chancery,
for contribution, was an established head of chancery juris-
diction in the time of Queen Elizabeth, on the plain princi-
ples of natural justice: so that if one of several sureties paid
the whole, or more than his proportion of the debt, he might
compel his co-sureties to pay not only his aliquot part, or if
the original debtor, or one of the sureties became insolvent,
each of the solvent sureties, was made to contribute to the
obligation thus thrown upon him. Ultimately, courts of law
entertained actions between sureties, but the court of chan-
cery did not on this account renounce its jurisdiction. This
tribunal still exercises a concurrent jurisdiction in all cases
for contribution between sureties, and there may be cases in
this State, where, notwithstanding our liberal legislation, it
is alone competent to afford a perfect remedy. [1 Story's
Eq. 475 ; 1 Spence's Eq. Jur. 661 to 664 ; Wright v. Hun-
ter, 5 Ves. Rep. 792 ; Sheppard v. Monroe, et al. 2 N. Car.
L. Rep. 624 ; Owens v. Collinson, 3 G. & Johns. Rep. 25,
40 ; Mitchell's Adm'rs v. Sproel, 5 J. J. Marsh. Rep. 270.]
These citations are so direct to that point, the it is needless
JUNE TERM, 1847. 229
Adams v. Garrett, et al.
to add to them, or to amplify this opinion by the employ-
ment of further argument. We then conclude, that although
the complainant had a remedy at law, he might, if he elect-
ed, have sued in equity.
In respect to the second objection to the bill, we are satis-
fied it was not well taken. It could not have been necessa-
ry to make the principal debtor, or the insolvent co-surety a
party. No relief was sought as against either of them. True,
it was necessary, to entitle the complainant to the full mea-
sure of what he sought to recover by his bill, that he should
have proved the insolvency of the co-surety, as alledged, and
it may be, of the principal also. [McCornmck, Adm'r, v.
Obannon, 3Munf. Rep. 484.] But as no consequences pre-
judicial to them would result from proof of that fact as the
decree could not foreclose to any extent their rights, and the
defendants, as the representatives of the deceased surety,
would not be prejudiced by making, or omitting to bring
them in as parties, the frame of the bill, in this respect, is
not obnoxious to a demurrer. Our conclusion then is, that
the chancellor erred in dismissing the bill ; his decree is there-
fore reversed, and the cause remanded.
ADAMS v. GARRETT, ET AL.
1. Where a condition is annexed to a bill of sale, it is not competent to show
by parol evidence, that another and different condition was agreed to by
the parties.
Writ of Error to the Circuit Court of Cherokee.
f
DETINUE by Adams, against William arid Mary Garrett, to
recover a certain slave.
230 ALABAMA.
Adams v. Garrett, et al.
At the trial, the plaintiff proved the possession and pro-
perty in the slave to have been in him previous to February,
1841, and that since that time, it had been in the possession
of the defendants, as well as the value of the slave, and that
his yearly services were worth $ 100. The defendants then
gave in evidence a bill of sale, executed by the plaintiff, with
two other persons, to William Garrett for the said slave, dated
12th June, 1841. To this bill of sale is a condition, that if
either of the grantors should pay the said Garrett $380, (the
price mentioned in the preceding part of the instrument as
paid to them,) at any time thereafter, then the said Garrett
should return the said slave to them, or either of them, or
pay the sum of $1200 if he failed to do so.
This is executed by the grantors, but is not executed by
Garrett.
The plaintiff then offered to prove this bill of sale was ex-
ecuted to secure the defendants in a contract for the loan of
$380, on which the plaintiff was to pay twenty per cent, per
annum, and the defendants were to pay $100 per year hire
for the slave ; also that in 1843, the plaintiff had tendered
the defendants $115. The defendants objected to this proof
as varying the written contract, and on this ground the court
excluded it.
The plaintiff excepted, and now assigns this ruling as error.
LEWIS E. PARSONS, for plaintiff in error, insisted
1. The written instrument offered in evidence, is a mort-
gage on its face ; but even if it were an absolute convey-
ance, it could be shown by parol that it was intended to ope-
rate as such. [Hudson v. Isbell, 5 S. fy P. 67; Derhozo v.
Louis, Ib. 91; see also Kennedy v. Kennedy, and cases ci-
ted ; English v. Lane, 1 P. 328.]
2. If this were an absolute conveyance on its face, and a
bill were filed charging the facts here relied on, would not a
chancellor direct an account to be taken of the value of the
services of the boy, and after allowing the mortgagee legal
interest, require of the mortgagor only such balance as might
appear to be due ?
3. If the parties have themselves stipulated the value of
JUNE TERM, 1847. 231
~ Adams v. Garrett, et al.
tne negro's services, proof of this fact cannot be said to vary
the written agreement, because that is silent upon this head.
Where no consideration is expressed, it is admissible to prove
what it was. [5 S. & P. 410; /Brown v. Isbell, 11 Ala. R.
1010, and cases cited ; see also Murchie v. Cook & McNab,
1 Ala. R. 41.]
4. This evidence is certainly admissible to show that there
was a fraud in omitting to insert the whole agreement, [Py-
sant v. Ware, et al. 1 Ala. 161; Beard v. White, Ib. 436.]
This is proper at law. But the court rejected it as incompetent
for any purpose, because it tended to vary the written instru-
ment. Fraud is a question of fact, and the evidence should
have gone to the jury, that they might determine it.
A. J. WALKER, for the defendants in error, contended
1. The amount to be tendered cannot be diminished by a
counter claim against the party to whom the tender is made,
or in other words, the requisite amount must be tendered in
money, and not a part in money and a part in a counter
claim. [2 Phil. Ev. 133, 134; Brady v. Jones, 16 English
Com. Law R. 87; Dewey v. Bellows, 9 N. H. 282; Cary v.
Bancroft, 14 Pickering, 315.]
2. The written contract is a conveyance to Wm. H. Gar-
rett, with a right to plaintiff to demand a restoration of the
negro upon payment of $'318. The contemporaneous agree-
ment that Garrett should pay $100 per annum hire, and that
plaintiff should pay 20 per cent, per annum interest on the
$318, is in conflict with the written contract of the parties,
and is an attempt to vary a written instrument by a verbal
arrangement made at the time of its execution, or to change
its legal effect. [Holt v. Moore, 5 A. R. 521; Standifer v.
White, 9 A. R. 527; Hair, et al. v. La Brouse, 10 A. R. 550;
Paysant v. Ware & Barringer, et al. 1 A. R. 160.]
GOLDTHWAITE, J. It is not material now to inquire
whether the condition attached to the bill of sale makes the
transacticyi a mortgage, because it seems to us the same an-
swer must be give* to the question raised on the record,
whether it is so considered or regarded as a conditional sale,
with the reservation of the right to restitution, upon the re.-
232 ALABAMA.
Adams v. Garrett, et al.
turn of the purchase money. Conceding the title to the
slave would be revested by the tender of the specified sum,
according to what is said in Sewall v. Henry, 9 Ala. Rep.
24, it by no means follows that such is the effect when the
debt is equitably discharged by the reasonable hire of the
slave. We do not understand, however, that this view was
pressed at the trial, but then the plaintiff insisted on the right
to show that the real contract was, that a specific hire should
be allowed for, until the debt was extinguished or the mo-
ney returned. If this does not fall within the rule prohibit-
ing the modification of written contracts by parol evidence,
it seems to us quite difficult to suppose a case for its opera-
tion. There is no pretence to say that it is the affixing a
condition to an absolute conveyance, because the written in-
strument already has a condition, and if another can be add-
ed by parol, there must be an end of all certainty. In con-
formity with this view of the law, it has been held, where a
mortgage was conditioned for the payment of money, parol
evidence is inadmissible, that it was given to indemnify the
mortgagee as special bail for the mortgagor, and that no dam-
age had been sustained. [Jackson v. Jackson, 5 Cowen,
173.] So, where the mortgage was conditioned for the pay-
ment of $> 50, parol evidence was not allowed to show it was
intended to indemnify the mortgagee for becoming surety
for a note of $25. [12 Wend. 61. To a similar effect is
Brooks v. Maltbie, 4 S. & P. 96.] These citations (and
many others we doubt not might be added) are quite suffi-
cient to show that parol evidence was inadmissible to show
a different condition from that recited in the bill of sale. It
is unnecessary to consider how far a fraudulent imposition of
a condition in the bill of sale, from that intended by the
parties, would affect the instrument in a suit at law, as the
proof had no tendency to raise that question.
Judgment affirmed.
JUNE TERM, 1847. 233
Emanuel v. Martin.
EMANUEL v. MARTIN.
1. When partners execute several notes, in their individual names, for work
done for the firm, if there is a total failure of the consideration, the de-
fence may be made by either, when sued upon the note executed by him.
Error to the County Court of Conecuh.
THE defendant in error, brought suit against the plaintiff
in error, before a justice of the peace, and recovered judg-
ment, from which the defendant appealed to the county
court. Upon the trial in that court, as appears from a bill of
exceptions, it was proved, that the notes which were the
foundation of the action, were given for work and labor per-
formed by the plaintiff, for Farnham & Emanuel, as manager
and chief workman in tanning, currying, and dressing leath-
er, in the tan-yard of Farnha-m & Emanuel. That after his
services were closed with the firm, each member executed
their notes separately, for one half the wages due by the firm
to the plaintiff, and that when the partners come to examine
their hides, and leather, they found that plaintiff had neg-
lected to attend to his business, and that the hides and leath-
er were damaged to a greater extent than the amount of the
notes, the foundation of the action.
The defendant moved the court to charge, that if the jury
found these facts to be proved, the notes were without con-
sideration, to the extent of the injury caused by the couduct
of the plaintiff. This charge the court refused to give, but
charged, there could be no failure of consideration to a note
given by one member of a firm, on account of damage done
by the plaintiff in failing to perform duties he had agreed to
perform for the firm. f To which the defendant excepted,
and which he now assigns as error.
30
234 ALABAMA.
Rowdon v. Young, Adm'r.
BRODIE, for plaintiff in error.
T. D. CLARKE, contra.
ORMOND, J. The bill of exceptions in this case, is ob-
scurely drawn. As we understand it, it presents the case of
two partners executing their individual notes to a workman,
for a debt due from the partnership, and that the work which
was the consideration of the notes, was so unskilfully and
badly executed, that the entire consideration of both notes
has failed. This is doubtless a defence, which either part-
ner may make, when sued upon the note executed by him,
as the failure of consideration is entire, as to both contracts,
and the right to make the defence is not lost by the execu-
tion of separate notes.
Judgment reversed and cause remanded.
ROWDON v. YOUNG, ADM'R.
-&'
1. A copy of a promissory note, evidencing a debt due from an insolvent
estate, verified by affidavit, is a sufficient compliance with the statute re-
quiring claims to be filed, and it is competent after objection made, to
produce the original.
-Wj in alii '
Writ of Error to the Orphans' Court of Shelby.
ON the 27th December, 1845, the report of insolvency
which the defendants had previously made of their intestate's
estate, was confirmed, and the appropriate order made with
a view to the settlement of the same. On the 2d Septem-
ber, 1846, the administrators filed objections in writing to
the allowance of the plaintiff's claim, which state the follow-
ing causes : 1. Because the claim filed is only the copy of a
JUNE TERM, 1847. 235
Rowdon v. Young, Adm'r.
note, or bond, and the absence of the original is not account-
ed for. 2. Because the note or bond on file was not made
by the intestate, or any one for him. 3. Because the plain-
tiffs claim, if he have one, was not filed within six months af-
ter the estate was declared insolvent, verified by affidavit.
4. Because the claim was not presented to the administrators,
or either of them, within eighteen months after the grant of
administration. An issue was made up, and the parties a-
greeing to dispense with a jury, submitted the questions aris-
ing to the court, whereupon it was adjudged that the objec-
tions be sustained, the claim forever barred, and that the
plaintiff pay the costs.
A bill of exceptions was sealed at the instance of the plain-
tiff, from which it appears that he filed in the office of the
clerk of the orphans' court, an account and affidavit, as fol-
lows, viz : " Talladega, Feb. 1, 1846. Fenelon Young, Dr.
To one note of hand, or promissory note, to wit: $ 1,000.
One day after date, I promise to pay John f. Rowdon, the
sum of one thousand dollars, for value received, as witness
my hand and seal, this 8th day of April, 1844. Fenelon
Young, L.S. State of Alabama, Shelby county. Before
me, Elijah G. Lawley, clerk of the county court of Shelby
county, came John P. Rowdon, who, after being duly sworn
according to law, saith, on oath, that the above is just and
unpaid. Sworn to this day, 23 Feb. 1846. E. G. Lawley,
clerk. (Signed,) John P. Rowdon." It was admitted that
this paper was filed within six months from the time the es-
tate was reported insolvent.
On the trial of the exceptions, the plaintiff produced the
original note, of which the foregoing was a copy. Upon
this evidence the court was of opinion that the claim was
not sustained, and thereupon rejected the same, and ad-
judged the plaintiff to pay the costs ; to which he excepted.
L. E. PNRSONS, for the plaintiff in error, made the follow-
ing points: 1. The 'evidence of the claim need not be
shown, nor its justice established at the time it is filed. [3
Ala. Rep. 283. J The object of the objections being to ap-
236 ALABAMA.
Rowdon v. Young, Adni'r.
prize the creditor of the insufficiency of his claims, he may
remove them by completing the evidence before the claim is
acted on. [Clay's Dig. 194, <> 10 ; Hollinger v. Holly, 8
Ala. Rep. 454; Brown v. Easley, 10 Ala. Rep. 565; Short-
ridge v. Easley, Id. 520.]
2. The evidence necessary to sustain a claim, is often dis-
tinct from, and independent of, the claim itself. Here the
note is but evidence of it. [Moore v. Spence, 6 Ala. Rep.
508.]
COLLIER, C. J. The ninth section of the act of 1843,
"to amend the laws now in force in relation to insolvent es-
tates," requires every person having a claim against the es-
tate of a deceased person, which is reported insolvent, to file
the same in the clerk's office of the proper orphans' court
within six months after the report is confirmed ; every such
claim shall be verified by the affidavit of the claimant ; and
the clerk shall indorse thereon the day on which it was filed,
and shall keep a docket, or list of such claims, which shall
at all times be subject to the inspection of the administrator
and creditors o 
