author: COLLIER, J.

text:
    DRIVER VS FORTNER.

      Points as to fraud, in the sale of trust properly, ty‘ a creditor.

      As to evidence in Chancery causes.

      As to prayer for relief, in a bill in Chancery.

      1. Where A. executed a deed of trust in favor of B. to secure the payment of a debt, and after fruitless efforts for settlement, which were resisted by B. the latter endeavored to force a sale of slaves under the deed, to prevent which, A applied for, and obtained an injunction; and B, exerted himself to prevent A from obtaining the necessa-y surety, and upon the sale of the trust property, demanded specie — whereby it appeared that the slaves were sold at a loss to A. On a bill filed by A, it was held — -
    2> First — That equity had the power to set aside the sale, under the trust deed, on the ground, that equity is authorised to take from a party, or third person, (he benefit derived from his fraud, by the prevention of an not to be done by another: and B, having by false representations, prevented A from litigating his rig' ts before the sale., he sho'uld not have benefit from bis purchase at. the sale, but that the slaves should be held as a security, for the amount due u pon the debt secured by the deed — liable to a return to A, on. payment, of the trust debt.
    3. Secondly — That a payment made by A to B, without particular direction as to its application, might well bo applied by B, to the payment of a debt, other than that secured by the trust deed.
    4. Thirdly — That a payment made by A to B, and charged to have been extorted as usurious interest — the usury not being denied by B, in his answer, but avoided; and no proof being made, that the payment was applied to the benefit of A, should be credited against the trust debt.
    6. It seems, that one having a lien upon property, liable to waste or loss, might well stipulate with his debtor to have it insured; and might receive a premium, and take the risk himself — provided the transaction be bona fide.

    6. A bill for an injunction, not filed as an original, the order upon which has not been complied with, cannot be considered a record of Court, so as, of itself, to become evidence in a suit in Chancery, between the same parties.
    7. Though, it seems, a bill in Chancery, basing its material allegations upon, such bill for injunction, and its existence being admitted by the answer, might dispense' with proof of it.
    8.,The prayer of a bill in Chancery, is an essential part, and without its insertion, no decree can be rendered for a complainant.
    9. Under a general prayer for relief, with or without a special prayer, a Court of Chancery, will award such relief as may . be made out by the bill, or as is consistent with the cause, though variant from relief specially prayed.
    10. But where specific relief only is prayed, Chancery will not go further than its terms require.

      The defendant in error exhibited his bill on the equity side of the Circuit Court of Madison, setting forth, that on the eleventh day of May, eighteen hundred and thirty, he executed a deed of trust to Thomas J. Sumner, as trustee, for the benefit of the plaintiff, which was intended to secure the payment of a note, given by the defendant to the plaintiff, on the fifteenth of January, eighteen hundred and thirty, for the sum of two hundred dollars, with interest from the date, due on the first day of March, eighteen hundred and thirty one. — That, about the third day of June, next after the maturity of the note, the defendant being hard pressed for money, went to the plaintiff and informed him of his embarrassments, and his reluctance to part with his property embraced in the deed, in as much as they were three family negroes; and paid him ninety-seven dollars in the paper currency of the country, which was then selling at a discount, that reduced it to ninety-five dollars and thirty-five cents. The defendant, being unable to pay the balance, offered a per cent, above the legal interest, for time, whereupon, the fplaintiff agreed to give time, until the first of March, eighteen hundred and thirty-two, if the defendant would, in addition to legal interest, pay thirty per cent. — to this he refused to assent — stating that he had rather have his property sacrificed by a forced sale, under the deed; and requested the plaintiff to return to him. the money he had paid him, and resort to the deed. But, this the plaintiff declined doing, saying he had the money, and intended keeping it — and then credited the note with twenty-seven dollars, applying .eighteen dollars and twenty-seven cents to the payment of a small note he held against the defendant, and the balance to the payment of usurious interest, against his directions.
    ■ It was further shewn, by the bill, -that on the fourth of June, eighteen hundred and thirty-two, the .defendant having procured an acceptance in the plaintiff’s favor, for forty to sixty dollars, and ex.-pecting in a fpvv minutes, to receive .enough money for the purpose, determined to pay off the note with ■the demand of thirty per cent, as & premium for delay ; but was surprised, on informing the plaintiff of his intention, to learn, that he still demanded, in addition to the payment he had received, two hundred and seventy dollars. This sum the defendant promptly refused to pay — whereupon, the plaintiff .endeavored -to force him to pay it.
    The bill also showed, that immediately after a failure to settle, the plaintiff had caused to be published, a notice for the sale of the negroes under the deed, on the eighteenth of June, eighteen hundred and thirty-two; and that the defendant, a few days before the day of sale, applied for, and obtained an order for an injunction, inhibiting the sale upon the payment by him, of one hundred and twenty six dollars and sixty-five cents, to the clerk of the Circuit Court of Madison, and entering into bond, with sufficient security, in one hundred dollars. The plaintiff, that he might purchase the ne-groes at a great sacrifice, was sedulous in his efforts to prevent the defendant from giving the bond, provided for by the order, by falsely reporting his insolvency — that he owed large sums of .money, &c.
      That the plaintiff objected to, -and induced the clerk to refuse a surety who was tendered, falsely representing him to be insolvent. — That he followed the defendant, and would dissuade every person from becoming his- surety, whom the defendant would solicit; and did actually prevent a Mr. Brandon from becoming such, by his misrepresent tations.
    It-was further shewn that the plaintiff interposed similar obstacles to the collection of money by the defendant, by forbidding the man who accepted the order, for from forty to sixty dollars in his favor; (but which had never been delivered to him, and for which he had never given value,) not to pay the amount to the defendant. And further — that the plaintiff directed the clerk to receive nothing but “ specie dollars f and inhibited him from receiving United States’ Bank notes, at any discount — that the defendant found it impracticable, under the cir-? cumstances, to give the surety, and to procure the specie. A sale, of course, took place, at which it was announced, that nothing but specie would be received. The few persons who attended the sale, were taken by surprise, and two or three of them, were in search of specie, when two of the negroes were bid off by one B. Metcalf, for the plaintiff, at the price of two hundred and twenty-nine dollars, a price, which it was alleged, was much below their true value — and the plaintiff refused to pay to the defendant, any excess, after discharging the demands of the deed, save only the sum of seven dollars and eighty cents; which he declined receiving.

      The bill after many interrogatories, concluded with the following prayer: “And may it please your Honor, to grant the States’ most gracious writ of subpcena, commanding <&c. and that, on final hearing, said defendant be compelled to deliver to your orator, the said two negroes; on condition that your orator pay the balance of the said note, in said deed specified, with the interest, after deducting the said ninety-five dollars and thirty five cents ; or if said negroes or either of them, should in the meantime die, the defendant be decreed to pay the sum of four hundred and fifty dollars, said debt being deducted, and that in either case, defendant be bound to cancel the said note, and this your orator, as in duty bound, will ever pray, &c.”
    To this bill, the plaintiff in error, answered, admitting the sale of the negroes, under the deed of trust, and the purchase by him, for two hundred and twenty-nine dollars, — that a requisition was made of specie, but that he acted openly and fairly in this. He denied all oppression or unfairness in the sale — denied that he exacted two hundred and seventy dollars of the defendant, or any sum beyond what was actually due; that after the sale, he tendered to the defendant, but seven dollars and eighty cents, because this was the entire balance — -denied that he ever endeavored to prevent any one from becoming the defendant’s surety. He admitted that he represented to some persons, and particularly to Mr. Brandon, that he thought the complainant insolvent; but these representations were made in consequence of inquiries made of him. The plaintiff admited that he objected to the sufficiency of the surety offered to the clerk — and did so, because he was a poor man, of doubtful ability. He admited the receipt of ninety-five dollars and thirty-five cents ; but denied that he appropriated it otherwise than as defendant directed — denied the reception of usurious interest — stated that defendant asked of him indulgence on his note, which he refused; but assented afterwards to allow it, upon defendant’s representing, two of the three slaves, to be small and of little value, and if then sold, he would be deprived of the third, (their mother,) who would also have to be sold to pay the debt. Whereupon, the fifty dollars was taken, as a fair equivalent for the risk of loss, by death or otherwise, of the negroes.
    The Chancellor below, rendered a decree, setting aside the sale under the deed; and the plaintiff took a writ of error.

      Me Clungfor plaintiff in error — Robinson, contra.
   COLLIER, J.

The questions of fact, arising upon the bill and answer, touching which they are in conflict, and which are to be determined by the proof in the cause, are these:

First; — Did the plaintiff fraudulently prevent the defendant, by false statements or otherwise, from complying with the conditions of the order, for the issuance of an injunction'?

Second — Did the plaintiff refuse to allow to the defendant, all proper credits upon' the debt secured by the deed of trust?

Third — If the plaintiff prevented a compliance with the terms of the order, for an injunction, has the defendant sustained an injury thereby'?

Several witnesses were examined at the instance of the defendant, and their depositions were read on hearing in the Circuit Court. William Brandon, whose deposition stood first in order, said that he consented to become the defendant’s surety in the bond, for an injunction, if the defendant would give him a deed of trust, on the negroes. But the plaintiff said to him, that if he became the defendant’s surety, and received a deed of trust on the negroes, the negroes would be taken from him, by execution, then in the hands of one Flanagan. The plaintiff then asked witness, if he would become the surety of such a rascal as the defendant, and thereby prevent an honest man from collecting a just debt, to which witness replied that he would become his surety, if he would make him safe. — ' Plaintiff then remarked to witness, that he had no means to make him safe, and that what property he had, would not pay his just debts.

William D. Bollowell, a witness for defendant, stated, that in the Spring of eighteen hundred and thirty-two, he accepted a conditional order, drawn by the defendant in favor of the plaintiff, for from forty to sixty dollars. He did not know whether this order was to be credited on the deed of trust, but recollected, that the plaintiff stated, he had a deed of trust, the whole or a part of which, the defendant was to settle on that day — he did not know that his acceptance went into the plaintiff’s hands. Some altercation took place between the parties, in the course of their settlement, the particulars of which, he did not know, having withdrawn from where they were. The witness was prevented by the plaintiff, from paying to the defendant, the amount he was owing him, (defendant,) by giving the witness notice, that he would hold him responsible. At the sale, the witness recollected that the plaintiff was a bidder.

Lemuel Mead, was examined at the instance of the defendant. This witness was the clerk, to whom the order for an injunction was directed, and said, that, about that time, the plaintiff stated to him, that the defendant was insolvent, or would be so, and that he had claims against him, to the amount of six hundred dollars.

' The defendant offered one Anyan, as a surety for' the injunction — The plaintiff objected to him, saying, either that he was insolvent, or his engagements were as large as he could meet, and threatened to make witness liable, if he accepted him: the witness thought, he understood from both parties, that the plaintiff had forbid Hollowed from paying to the defendant, the sum due from him; and that for the cash, directed by the order for an injunction, he was directed to receive nothing but specie. -

At the sale, the plaintiff proclaimed that nothing but specie would be received, not even United States’ Bank notes, at twenty-five per cent, and witness thought he said, even fifty per cent, discount.The demand of specie, he thought, prevented the negroes from selling for as much, as they otherwise would have done, from fifty to seventy dollars— perhaps not so much.

William Echols, in his examination, stated that he considered Anyan, (the individual who was offered by the defendant as his surety to the clerk,) as solvent; and that the difference between the currency of the country, and specie, was refused at the sale, and.that but for the requisition of specie, he thought the negroes would have sold for three hundred dollars.

Joseph B. Bradford, said, that at the meeting of the parties, which took place in his counting room, a short time previous to the sale, and when they appeared to be endeavoring to settle, an altercation took place and violence ensued.

!■ B. Metcalf, thought the value of the negroes, at the time of the sale, was about two hundred and thirty dollars. About the time of the sale, he heard the plaintiff tell Hollowell, that he should hold him responsible on his acceptance.

Stephen S. Ewing, thought the negroes were well worth two hundred and fifty dollars — heard plaintiff say that no good man or honest man would become the defendant’s surety, assigning as a reason, that he was a bad man. Witness thought that plaintiff was unwilling for defendant to give the surety required — thought Anyan was solvent for two hundred dollars. He said, it was proclaimed by the plaintiff, at the sale, that specie would be required, and that United States’ money would not be received at twenty-five per cent discount; but witness thought there would not have been much difficulty in procuring the specie.

B. S. Anyan stated, that the plaintiff, in conversation with him, denied having received usury of the defendant, and speaking of him in most disreputable terms, said he did not believe that he could give the security for the injunction. Witness stated, that when he was offered to, and rejected by the clerk, as a surety for the defendant, he was worth not less than six hundred dollars.

Joseph Pickens, thought the negroes worth, at least, one hundred and fifty dollars, each, and that he should have thought Anyan, good, for at least, six hundred dollars.

Miles McMillian said, that he did not think himself very capable of determining the value of the ne-groes, but could not give more than three hundred dollars, without informing how much he thought them to be worth.

This closes an abstract of the testimony, so far as it is material to the points in controversy. .

The Circuit Court, by its decree, set aside the sale, made the Sheriff a trustee to execute the trust under the deed, and substantially granted the prayer of the bill.

In respect to the first question to be examined upon the bill and answer, we think that the proofs in the cause, very satisfactorily shew, that the plaintiff in error, by representations which he has not only failed to make good by proof, but which are disproved, did prevent the defendant from cem-plying with the conditions of the order, for an injunction to restrain the sale of his negroes, under the deed of trust. Anyan, who was offered to the clerk, was entirely sufficient; yet the plaintiff objected to his reception, and threatened to charge the clerk, if he accepted him.

Brandon, who had consented to become the defendant’s surety, (upon receiving a deed of trust upon the negroes, embraced in the deed already referred to,) was prevented by the statement of the plaintiff, that, he was insolvent, and that a deed for Brandon’s benefit, would be over-reached by executions of an older date. Lastly, his repeated representations, (and when not applied to for information,) that the defendant was, or soon would be insolvent, and that he wanted moral principle, were well calculated to prevent all who wished to maintain friendly relations with the plaintiff, or who were not particularly friendly with the defendant, from lending him their aid.

The plaintiff, not only prevented the defendant from giving the surety, but also from procuring the money, to make the deposite with the clerk, which the order contemplated. This sufficiently appears, by his forbidding Hollowell, not to pay to the defendant, the sum for which he had once accepted in favor of the plaintiff, but the right to which, still remained in the defendant.

Whether the demand of specie was intended to prevent a compliance or not, to say the least of it, the refusal to receive United States’ Bank notes, or the currency of the country, at a discount, above, what was the fair rate of exchange, was out of the ■usual course of dealing; and we can but think, mam ifested a disposition to oppress, however legitimate such a course of procedure might be.

Our conclusion upon the facts, is, that the evidence proves, the plaintiff did fraudulently prevent, by false statements, the defendant from prosecuting a suit upon his bill, for an injunction — in consequence of which, the sale of the slaves, under the .deed of'.trust, was made without his option.

Let ns now inquire, whether, the powers of equity are adequate to afford redress.

“Fraud,” it is said, “is infinite;” hence, a Court of equity, cannot prescribe anyfflxed or invariable rules, as to the extent to which it will go, in relieving against it. Were the Court, to say, “ thus far we will go, and no farther,” the ingenuity of man would soon devise shifts to baffle its powers. Without pretending to define the vast variety of positive and constructive frauds, against which Chancery relieves, we will proceed at once, to show that the case at bar, comes within the principle of the rule, which authorises equity to take from a party, the benefit he may have derived from his own fraud, by the prevention of an act, to be done for a third person. To shew that this doctrine is considered as settled, we refer to 1 Story’s Eq. (258.)

The learned author, thus lays it down: “Courts of Equity hold themselves entirely competent to take from third persons, and a fortiori, from the party himself, the benefit which he may have derived from his own fraud, imposition or undue influence, in procuring the suppression of such acts.”

In Maester vs Gillespie, by the application of principle, it was held that a devisee, who a testator from charging his estate with a legacy, by telling him it is unnecessary to give himself that trouble — that it should be paid, shall be chargeable in Equity, as he prevented an effectual charge.

And Lord Eldon, in Huguenin vs Boseley, says, “I should regret that any doubt could be entertained, whether it is not competent for a Court of equity to take away from third persons, the benefit which they have derived, from the fraud, imposition' and undue influence of others.”

And the case of Bridgeman vs Green, is noticed, as an express authority, in which Lord Hardwicke observed, “ If a person could get out of the reach of the doctrine and principle of this Court, by giving interests to third persons, instead of reserving them to himself, it would be almost impossible ever to reach a case of fraud.”

This last case came before the Lords Commissioners, when Lord Chief Justice Wilmot, expressed himself in strong terms to the same effect.— And Lord Thurlow, in the case of Luttrell vs Waltham, maintained the same doctrine, as being well known in Equity, and considered it clear, even in favor of a volunteer, that the intention of a tenant in tail, who was prevented from completing a recovery, by the fraud of a person whose wife was entitled in remainder, should not be defeated; and held that the estate should be treated as if a recovery had been suffered.

To apply the principle of these authorities.— The plaintiff having, by representations which he failed to make good by proof, prevented the defendant from litigating his rights before the sale, he should not derive any advantage from his purchase of the negroes; but should hold them as a security for so much as is due upon the debt secured by the deed, and be liable to return them to the defendant, when that debt is extinguished. The proof, showing the sale and purchase, so far as the plaintiff is concerned, to be the result of fraud, can not be upheld in Equity, if the defendant has been injured by it.

AH the witnesses, with the exception of Mr. Metcalf, concur in the belief, that the negroes sold at a sum below what they were worth. One witness thinks that they were worth twenty dollars more than they sold for, while all the others think they were sold from fifty to seventy dollars less than a fair price. It is then manifest, that the defendant has sustained a loss by the sale.

In regard to the payment of the ninety-five dollars and thirty-five cents, there is an absence of proof of any direction being given as to its application, at the time of payment. The plaintiff then had the right to appropriate so much of it as was necessary to extinguish the small note ; and as it does not appear that he had other demands than that secured by the deed of trust, that should have been credited by the balance remaining in his hands.

The plaintiff in error den'es the reception of usurious interest, and insists, that he considered fifty dollars of the sum paid him, a fair equivalent for the risk he would run of losing his claim by the death of the negroes conveyed by the deed.— This statement in the answer, is not a direct denial of the allegation in the bill, which drew it forth; but is rather in avoidance, and according to the rules of procedure in equity, must be proved.— There being, then, no proof that the plaintiff applied it, for the benefit of the defendant, the latter may claim it as a credit upon the debt in controversy.

We do not pretend to intimate an opinion, that a party who has a lien upon property liable to waste or loss may not stipulate with his debtor, to have it insured — nor can we discover any objection to his receiving a premium, and taking the risk himself, if the transaction be fair and bona fide.

The bill on which the defendant obtained an order for an injunction, could not be considered as a record of the Circuit Court. To impart to it this character, it was necessary that the terms of the order, on which process was awarded, should have been complied with, or that the bill had been hied as an original. Until this was done, it was the private-paper of the defendant, and could not have been authenticated by the certificate of the clerk, but should have been proved by deposition. Had it been an exhibit with the bill, it might have been proved by a witness examined ore tenus, at the hearing.

However a paper may be offered, whether as a writing refered to in the pleadings, or as an exhibit in the cause, the Judge presiding, cannot by the mere recognition of its genuineness, authorise it to be used as evidence. So that in the admission of the bill, affidavit and order, upon the knowledge her professed to have of the hand writing of the parties whose respective acts were before him, it is believed that the Judge of the Circuit Court, erred. Yet the error is one, by which neither party could be injured, for the present bill, refers to the bill and order for an injunction, and predicates some of its most material allegations upon it; and the answer, (if not directly,) does by implication, admit the exhibition of such bill, and the order for an injunction. This dispensed with all proof in regard to it, and renders the objectionable evidence, superfluous.

Though the defendant has made out a good title to relief in Equity, yet he does not ask such relief by the prayer of his bill, as his case requires. He asks that the negroes may be delivered up to him, on the payment of so m.uch of the debt as may still remain unpaid, after deducting the sum of ninety-live dollars and thirty live cents, which he had paid the plaintiff; or if either of the negroes die in the meantime, that four hundred and fifty dollars be decreed to be paid him, after deducting therefrom, so much of the debt as may be due; and that in either case, the note be cancelled.

The first branch of the prayer, supposes that the sale is to be set aside, and thus far, may be proper enough. But upon this being done, the practice of a Court of Equity requires, that it should make such disposition of the cause, as may prevent further litigation, and be definite upon the rights of the parties. To do this, it is necessary to ascertain how much is yet due upon the debt secured by the deed, that a decree may be rendered for this sum; and, to ascertain the terms of the deed, so that the negroes may be again sold at the place where, and the time when, it directs; unless the debt should be paid, so as to reader a sale unnecessary. To make such a decree, there should he some proof of the deed.— This may, however, not be indispensable, and as the plaintiff has not exhibited it by his answer, as called on to do, the Court may proceed without it, taking care to direct a sale on terms, quite as beneficial to him, as the deed contemplates.

The prayer of a bill is deemed an essential part of it, and if it want it, no decree can be rendered in favor of the complainant.

Bills usually seek both specific and general relief, viz: That certain things therein expressed, may be decreed, “ and that the complainant may have such other or further relief, as shall seem meet, or the case may require.” If this latter prayer be made, the Court will adjudge to the complainant, such relief as is compatible with the case made out by the bill; although it be other than that specially asked: and even if the special prayer be wholly omitted, it is competent under the general prayer, to give the proper relief. But if a bill ask for specific relief only, the Court is confined in its action to the special prayer and cannot go beyond it.

HOPKINS, C. J. not sitting.

      11 Ves. 638

       14 Ves.] 288

      2Ves.629

      3 Bibb R. 157.

      2 Atk. Ibid. 141 3 Ibid. 132 2 Ves. 225 13 Ves. jr. 114 2 Peters R. 595.


source: Caselaw Access Project

author: GOLDTHWAITE, J.

license: Public Domain

text:
    RICHARDSON & SON VS BEAN and WASHINGTON.

      As to the bond of a constable.
    1. How far the omission of a constable to renew his bond annually, as required by statute, would be a failure to perform the duties of his office — qmi:e?

      2. But the statutory requirement, that these officers shall renew their bonds annually, — as affecting the liability of their sureties, — is to be considered upon the principle regulating the bonds of officers elected annually.
    3. So, the sureties of a constable to his bond, can not be made liable for defaults of that officer, committed after the expiration of a year from the time of executing it.
    On a writ of error to the Circuit Court of Tus-kaloosa.
    This was a motion submitted by the plaintiffs in error, for the object of testing the liability of the defendants, as sureties to the bond of a constable. The default of the constable consisted in his failure to return an execution.
    The facts were these: the bond was executed on the first day of September, eighteen hundred and thirty-three, and the executions, for the failure to return which the parties were sought to be charged, went into the constable’s hands on the seventh day of August, eighteen hundred and thirty-four, and were returnable on the seventh day of September thereafter. "
    A judgment was given for the plaintiffs, before a justice of the peacer — and on appeal to the Circuit Court, it was rendered for defendants.

      Peck, for the plaintiff in error—

      Crabb, contra.
   GOLDTHWAITE, J.

The defendants became sureties for one Barber, on the first of September, eighteen hundred and thirty-three, on a bond taken in conformity with the requisitions of the statute, -conditioned for the faithful performance by Barber, of the duties of a constable, to which office he had been elected; but at what time, does not appear in the record before us.

The plaintiffs put in the hands of Barber, as constable, for collection, executions against several persons, which he omitted to return in due course of law, and thus made himself, (and, as it is insisted, the defendants, as his sureties,) liable for the several amounts for which the executions were issued. It appears that these executions were issued on the seventh of August, eighteen hundred and thirty-four, and returnable the seventh of September, following.

Judgment was rendered for the defendants, by the Court below, and the plaintiffs prosecute their writ of error to reverse this judgment.

Several questions have been presented and argued; but the conclusion to which we have been -drawn, renders it unnecessary to notice any other than the one respecting the liability of the defendants, on the bond which they executed.

The bond itself is not set out in the record; but it is admitted that it was given pursuant to the act -of eighteen hundred and nineteen, which requires constables to enter into bond, with sufficient security, for the faithful performance of the duties of their office; and that they shall annually renew their bonds, or on failure so to do, the Chief Justice, (now Judge,) of the County Court shall give notice thereof to the commanding officer of the district for ■which the defaulting constable has been elected, who shall proceed to elect another person to fill his place, in the same maimer as provided for in the case of a vacancy.

It is contended by the plaintiffs, that this statute is governed, and in some measure superseded, by the act of eighteen hundred and twenty-two, which provides that constables shall hold their offices for three years, and until their successors shall bo duly qualified. And that the bond, in this case, being for the performance of the duties of the office, must cover the whole term, unless superseded by a new bond, — or, as the act of eighteen hundred and nineteen considers it, a renewal of the old one. — - And, it is insisted, that the community, who have no control over the officer, ought not to be prejudiced, either by his failure to renew his bond annually, or by that of the Judge of the County Court, to vacate his ofiicej on such default.

These reasons are certainly not without force; but it is unnecessary to consider how far the omission to renew the bond, would be a failure to perform the duties of his office, as that question can not be considered in this case; and the only one which can be raised, is, are the defendants liable for any failure by Barber, to return an execution, after the thirty-first of August, eighteen hundred and thirty-four ?•

The several acts in relation to constables, and their duties, are unquestionably to be considered in pari materia, and although the term of the office extends to three years, there is no repugnance, or inconsistency in requiring the officer to give an annual bond. And it can be viewed in no other light, as we think, than as if given by an officer who was elected annually; and the same construction which would be proper, in such a case, must apply, in principle, to this.

If then it was an annual office, we consider the sureties could not be held responsible for any default committed by the officer, after his term had expired. The default for which the defendants are sought to be made responsible, is one which could not have béen committed by Barber, until after the thirty-first of August, and is one technical in its character,- — a mere default to return an execution at the proper time. If the money had have been collected by him, previous to that date, or if it, the debt, had before that time, have been lost by his negligence, the plaintiffs would have their remedy against his sureties on this bond, but in another mode; but in the case we are to decide, Barber was in no default, on the thirtyffirst day of August, that we can be informed of. He had, for aught which we can know, up to that time, iaithfully performed all the duties of his office, and may have executed another bond, or renewed the old one; and the defendants in this action, cannot he held respond sible.

The principle on which we rest our decision, is fully supported by authority, in the case of the People vs Jansen, it was decided that a bond en by a loan officer, could not be enforced against his sureties, because of the omission of the supervisors to settle with him annually, as provided by law.

In the case of Hassell & Clark vs Long et al, it was decided that a bond made by the defendants’ testator, as surety for a collector of taxes, though general in its terms, must be confined to one year, it being shewn that the office was an annual one.

The principle of these cases, seems to be, that the obligation of the sureties, only extended to the term of one year; as in the last case, the office then terminated, and in the first, the default was then to be ascertained by others. "

In this case, the obligation is in effect, an annual one, and thus within the principle of the case cited from Maule & Selwyn, and if it could by any of its terms, be extended further, the defendants might say it was the duty of another officer, to have taken a new bond, or to have taken the measures requisite to create a vacancy; and this not having been done, they might well infer, that they were discharged within the rule laid down in the case from Johnson/

The judgment must be affirmed.

COLLIER, J. not sitting.

      Aik. Dig. 300

      Ib. 299.

      7 Jhons.] R. 332.

      2 Maule & Selwyn 363.


text:
    THE STATE OF ALABAMA VS COLEMAN.

      Questions as to indictments against one, for aiding •' and abetting in the commission of man-slaughter.

    1. That section of the sixth article of the Constitution of Alabama, in relation to the malicious dismemberment, or killing of a slave, was not intended to create a new offence, punishable by indictment — setting out specially, the terms used in the constitution^

      2. So a count in ah indictment, charging one with maliciously depriving a slave of life, &c. held to be defective.
    3. If one of several counts, in an indictment, be defective, it may be reached by motion to quash, or by demurrer.
    4. But, objection to the whole indictment, will not prevail, if there be one good count.
    6.Where several counts in an indictment, charge offences, to which the law inflicts distinct punishments, it seems the indictment might be bad.
    6. But after verdict and judgment, upon an indictment containing good and bad counts, judgment will not be arrested or reversed.
    7. One may aid and abet another, in the commission of the offence of man-slaughter, and be punishable accordingly.
    8. So, under an indictment charging one with being present, aiding, helping, abetting, comforting, assisting, and maintaining, T. K., in the commission of a murder, — the prisoner may well be convicted of man-slaughter.
    On points reserved as novel and difficult, from the Circuit Court of Monroe county.
    At the October term, eighteen hundred and thirty-six, of the Circuit Court of Monroe county, an indictment Was found against the prisoner, in tire following, words, to wit:

      “ The State of Alabama, Monroe county, to wit, of the term of the Circuit Court of said county, begun and holden in, and for said county of Monroe,on the second Monday of March, in the year of out Lord, eighteen hundred and thirty-six. The grand jurors, that is to say — good and lawful men of said county, impannelled, sworn and charged to inquire in, and for the body of said County of Monroe, in the State of Alabama, aforesaid, upon their oaths' present, that Thomas P. Kennedy, late' of the said county of Monroe, laborer, and Daniel Coleman, late of said county of Monroe, laborer, not having the fear of God before their eyes, but being moved and seduced by the-instigation of the devil, on the fifth-day of October, in the year of our Lord, eighteen hundred and thirty-five, with force and arms, at the' .said county of Monroe, in and upon one Primus, a negro man slave, belonging to one George Roll, iii the peace of God and of the said State of Alabama,then and there being, feloniously, wilfully and of their malice aforethought, did make an assault; and that- the said Thomas P. Kennedy, a certain-pistol of the value of ten dollars, then and there' loaded and charged with gun powder, and twenty leaden bullets, commonly called buckshot,' which pistol, he, the' said Thomas P. Kennedy, in his right hand, then and there had and held, to, against and-upon the said Primus, then and there, feloniously,-wilfully, and of his malice aforethought, did shoot- and discharge ;■ and that the said Thomas P. Kennedy, with the leaden bullets aforesaid, out of the pistol aforesaid, then and there, by force of the gunpowder, shot and sent forth, as aforesaid, the aforesaid Primus, in and upon the buttocks, of him, the said Primus, a little above the rectum, of him, the said Primus, thou and there, feloniously, wilfully and of his- malice aforethought, did strike, penetrate and wound, giving to the said Primus, then and there, with the leaden bullets aforesaid, commonly called buck shot, as aforesaid, so as aforesaid, shot, discharged and sent forth out of the pistol aforesaid, by the said Thomas P. Kennedy, in and upon, the said buttocks, of him, the said Pri-mus, a little above the rectum, of him, the said Pri-mus, one mortal wound of the depth of six inches, and of the breadth of half an inch — of which said mortal wound, the said Primus, from the said fifth day of October, in the year of our Lord, eighteen hundred and thirty-five, until the thirteenth of the same month of October, in the year last aforesaid, at the county aforesaid, did languish, and langush-ing, did live; on which said thirteenth day of October, in the year last aforesaid, the said Primus, at the county aforesaid, of the mortal wound aforesaid, died: and that the aforesaid Daniel Coleman, then and there, feloniously, wilfully and of his malice aforethought, was present, aiding, helping, abetting and comforting, assisting and maintaining, the said Thomas P. Kennedy, the felony and murder aforesaid, in manner and form aforesaid, to do and commit: And so the jurors aforesaid, upon their oaths aforesaid, do say, that the said Thomas P. Kennedy and Daniel Coleman, the said Primus, then and there, in manner and form aforesaid, feloniously, wilfully and of their malice aforethought, did kill and murder, contrary to the form of the statute, in such case made and provided, and against the peace and dignity of the State of Alabama.”
    “And the jurors aforesaid, do further present, that Thomas P. Kennedy, late of the said county of Monroe, laborer, and Daniel Coleman, late of the said county of Monroe, laborer, on the said thirteenth day of October, in the year of our Lord, eighteen hundred and thirty-five, with force and arms, at Monroe county, aforesaid, did maliciously deprive a certain negro man slave, named Primus, belonging to one George Roll, of life, contrary to the form of the statute, in such case made and provided, and against the peace and dignity of the State of Alabama.”
    At the October term, eighteen hundred and thirty-six, of the Circuit Court of Monroe county, the prisoner, Daniel Coleman, was put upon his trial, and by a jury of the country, found guilty of manslaughter.
    The prisoner’s counsel, then moved an arrest of judgment upon the following grounds:
    , First. — That the indictment was against Thomas P. Kennedy and Daniel Coleman, for the murder of a negro man slave, named Primus; and the indictment charged Kennedy, with the shooting of the said Primus, with a pistol, which he, the said Kennedy, in his right hand had and held; and charged the said Coleman, with being present, aiding and abetting.
    Secondly. — The indictment showed that Coleman, if he did any thing, only aided and abetted Kennedy, and under that charge, he could not he found guilty of man-slaughter; because the very nature of the offence, with which Coleman was charged, implied premeditation, and would make it jmirder, if it were any offence at all.
    Thirdly. — No one could commit man-slaughter, except the one who actually kills; because mam slaughter is an unlawful killing without malice.
    Fourth. — The judgment should be arrested, because the finding was uncertain, in not shewing on which count the defendant was found guilty.
    Fifth. — The finding was erroneous, if under the second count, because the second count is founded on the statute against malicious killing; and every malicious killing is murder. At any rate, if the jury found the defendant guilty, under the second count, they should have found him guilty of murder, not of man-slaughter.
    The motion in arrest of judgment was overruled, and the question reserved as novel and difficult.

      Ellis, for the prisoner-- Attorney General, contra.
   COLLIER, J.

The prisoner was indicted in the Circuit Court of Monroe County, in an indictment containing two counts.

The first count charges in due form, the prisoner, in conjunction with Thomas P. Kennedy, with making an assault “upon one Primus, (a negro .man slave, belonging to one George Roll,) and the said Kennedy, with discharging the contents of a pistol at Primus, by means of which he was wounded, and thereafter died,” The count then proceeds to charge the prisoner with being present, aiding, helping, abetting, comforting, assisting and maintaining the said Kennedy, “ the felony and murder aforesaid,” in manner and form aforesaid, to do and commit. The count then concludes, that the prisoner and the said Kennedy did kill and murder, in usual form.

The second count merely charges, that the prisoner andj said Kennedy did maliciously deprive a certain negro man slave, named Primus, belonging to one George Roll, of lifeand concludes, contra formarn statuti, and against the peace and dignity of the State.

The prisoner, we suppose, (though the record does not shew,) was tried on the plea of not guilty; to which the jury responded, “ that the said prisoner is guilty of manslaughter, and not guilty of murder, and assess his imprisonment at sixty-eight days, and a fine of one hundred dollars.” Judgment following the verdict, the prisoner by his counsel, submitted to the Court the following motion.

“The State ^ “ The defendant in this case vs > moves to arrest the judgment, “ Daniel Coleman, ) upon the following grounds—

1st. The indictment is against Thomas P. Kennedy and Daniel Coleman, for the murder of a negro slave, named Primus; and the indictment charges Kennedy with shooting the said Primus, with a pistol, which the said Kennedy in his right hand ■had and held; and charges the defendant, Coleman, with being present, aiding and abetting.

Pdly. The indictment shews, that Coleman, if he did any thing, only aided and abetted Kennedy; and, under that charge, lie can not be found guilty of manslaughter, — because, the very nature of the offence, with which Coleman is charged, implies premeditation, and would make it murder, if it be any offence at all.

“3dly. No one can commit manslaughter, except the one who actually kills — because manslaughter is an unlawful killing, without malice.

“4thly. The judgment ought to be arrested, because the finding is uncertain, in not shewing on which count the defendant was found guilty.

5thly. The finding is erroneous, if under the second count, because the second count is founded on the statute against malicious killing, and every malicious killing is murder — at any rate, if the jury found the defendant guilty, under the second count, they ought to have found him guilty of murder, and not of manslaughter.”

The Circuit Court overruled the motion in arrest of judgment, and referred the questions of law, thereupon arising, as novel and difficult, to this Court, for its decision.

The legal sufficiency of the first count in the indictment, is not drawn in question by the reference made to this Court; if it were, as at present advised, we should not hesitate to express the opinion, that it conforms to the most approved precedents, and was consequently free from objection.

In respect to the second count, it charges no of-fence, with technical precision and accuracy — the means employed, the circumstances of their employment, and the particular offence committed, save only by way of inference, are not shewn; so that according to all rule, this count cannot be sustained. It is supposed to be founded upon the third section of the article of our constitution, in relation to slaves, which is as follows: .

“Any person who shall maliciously dismember, or deprive a slave of life, shall suffer such punishment as would be inflicted, in case the like offence had been committed on a free white person ; and on the like proof, except in the case of insurrection of such slave.”

This provision of the constitution, was never intended to introduce any new offences against the law. “Maliciously to dismember, or to deprive a slave of life,” were as highly penal, before its adoption, as they are now-. Its true purpose, was, the security of the slave, by restraining the legislature from the enactment of laws, which would take from him the same protection for his life, which the free white man enjoys. To ascertain how the charge should be made in the indictment, we are not to look to the constitution, but to the books which treat of criminal law. Maliciously to dismember, or deprive of life, are but terms of circumlocution, to designate mayhem and murder, and an indictment for the former, should be good for mayhem, and of the latter, for murder.

The first count being good, and the second bad, the question arises, can the verdict of the jury, which is general, and upon both counts, be sustained. It may be observed, that each-count, is a distinct substantive charge. If either count be defective, exception may be taken to it by motion to quash, or on demurrer, at the discretion of the judge trying the case; but no objection will avail to the whole indictment, if it has any good count.

j£ £[iere are several counts in an indictment, and the law inflicts a distinct punishment for the offence charged in each, then the indictment would be bad for misjoinder of offenqes. It however, seems to be now well settled, that where there is a verdict and judgment on an indictment, with good and bad counts, the judgment shall not be arrested or reversed; but that the finding of the jury, will be upheld by the good counts. For it will be presumed, that the Court, and of consequence the jury, were controlled in their action, by a reference to the good counts. And Lord Mansfield, seems to have considered this to be law in his day, and expressed regret that the principle had not been applied to proceedings in civil suits,

The right to punish manslaughter, under an indictment for murder, has been conceded, upon the principle that the latter includes the former, as a lesser offence of kindred character.

It remains, then, but to inquire whether the prisoner can ,be found guilty of manslaughter, upon the first count of the indictment,

In this count, he is charged with Kennedy, in making an assault upon Primus, and aiding and abetting of him. (Kennedy,) to shoot him, (Primus.) To have participated in the assault, implies an actual and not a constructive presence. To constitute the crime of murder, it is essential to- shew, either express or implied malice, on the part of the-accused, for if uninfluenced by what the law terms express malice, or there be no proof of such circumstances as to authorise its implication, he must, if the act be merely illegal, be guilty of manslaughter. The man who, without any predetermined purpose, but under the influence of a momentary excitement, aids and abets his friend in an affray, in which the friend kills his adversary, is not guilty of murder, because malice, an essential constituent of the crime, is wanting; yet, he is not wholly dispunishable, for aiding and abetting an unlawful homicide.

Upon authority, it seems unquestionable that there may-be aiders and abettors in manslaughter; and Russell, (1. vol. 456.) lays it down, that “in order to make an abettor to a manslaughter a principal in the felony, he must be present, aiding and abetting the fact committed.” This learned author is sustained by Hale.

So in Hawkins, (1 vol. 102.) it is said to be clear, that if-a master, maliciously intending to kill another, take with him his servants, without acquainting them with his purpose, and meet and fight his adversary, and his servants then take part with him, and kill his adversary, they are guilty of manslaughter only; but the mastei, of murder. This distinction is doubtless, founded upon the fact, that there was a mere participation in the act, without a felonious participation in the design — a distinction, founded in principle and recognized by authority. Rex vs Plumer.

In the case at bar, xt is alleged that the prisoner was present, aiding &e. and that Kennedy and himself, made the assault upon the deceased, which eventuated in his death, at the hands of Kennedy. This allegation, brings the case of the prisoner, not only within the principle, b,ut yvithin the letter .of the authority cited

Hence, we are of opinion, that there is no error in the refusal of the Circuit Court, to arrest its judg-pent.

Jt is therefore ajhrmecL

      5 Whit. 201

       1. Jhon's 12-320.-8. Wend, 203.

      . Doug. R. 703.

       1 vol. 438-439 & 431 et post

       Kel. 109. 1 East. P. c. 257.


author: HOPKINS, C. J.

text:
      TURNER, per pro ami, VS THROWER.

      Points as to sates of fugitive slaves, ly Sheriffs.

    1. That part of the act of eighteen hundred and nine, “res- pecting runaway slaves committed to jo.il,”* which requires publication of the commitment of the slave in some newspaper, — contemplates a number of publications, limited to the number of papers, published during the period, between the period of first publication, to the expiration of the six months after commitment.
    2. And the onus of proof, that publication in a case of this' character, had been made as often as it could have been, within the six months,--rests upon the party claiming title, under a sale of such runaway slave, by the sheriff.
    3. So, where in detinue for a slave, the defendant claimed title, through a sale made by the sheriff, under this statute,- and showed a publication to a time, within a few days of the expiration of the six months, after the first publication of commitment — it was held, that as the defendant did not prove that the publication was made as often as the paper was-published, there was a failure to prove the publication as required by the act.
    4. The notice of the sale of any fugitive slave, under this statute, should be given for thirty days, after the expiration of the six months, from the first publication of the commitment: and the sheriff has no authority to advertise a sale until this period has elapsed.

      6. And it is not sufficient that this notice of sale be given through a newspaper. It should, as required by the act, be made uniformly, by publication in a newspaper, at the Court house of the proper county, and at two other public places Within the coun'y. •
    6. Every act, required of a sheriff in making sale of a fugitive , slave, under this statute, is a constituent part of the title, vested in the’purchaser; and to render such title valid, proof of each requirement, must be made by the party setting up title under the sale.
    7. The effect of the proviso of this statute, upon sales under it, is confined to sales where the requisitions of the act have been complied with.
    Ill error to tlie Circuit Court of Mobile county.
    This was an action of detinue by Turner, as next friend, in the Circuit Court of Mobile county, for the recovery of a slave. The plea was non detinet; and under it, by the verdict of a jury, judgment was rendered for the defendant.
    On the trial, a bill of exceptions was taken, which disclosed the following facts, to wit;
    The plaintiff offered evidence, conducing to prove title in James Turner, and possession by defendant, his value, the value of his services, and a demand, and refusal.
    The defendant sat up title, under the sale of the slave, by the sheriff of Mobile county, as a runaway; and in support of that title, proved a warrant of commitment to have been issued on the thirteenth day of March, eighteen hundred and thirty-three, and the commitment of the slave under the same, and that the said warrant was lost. He then produced and proved an advertisement in the Mobile Commercial Register, dated, ninteenth of March, eighteen hundred and thirty-three; a copy of which, was in the words and figures following, to wit:
    “Committed to the jail of Mobile county, on the 13th inst. by Benjamin Wilkins, Esq. a justice of the peace, in and for said county, as a runaway slave, a negro man, who calls his name William Thompson, and says he is free, and that he came from the State of Virginia, as the servant of a Mr. Thompson: said slave is five feet, four or five inches high, twenty-five or thirty years of age, black, and has a number of small scars on his face. His owner is requested to come forward, prove property, pay costs and charges, and take him away, otherwise he will be sold according to the statute, in such case made and provided, to pay jail fees.
    March 19, 1833.
    J. BATES, jr. Sh’f. Mo. co.”
    This advertisement, and none other, was continued to be published in said paper, from the nineteenth day of March, eighteen hundred and thirty-three, as aforesaid, until the fourteenth day of September, eighteen hundred and thirty-three, and no longer.
    Defendant then produced and proved, an advertisement, dated and published on the fourteenth day of September, eighteen hundred and thirty-three, in the words and figures which follow:
    “Notice is hereby given, that the negro man, named William Thompson, committed as a runaway slave by Benjamin Wilkins, Esquire, a justice of the peace for Mobile county, on the 13th March, 1833, having remained in the jail of said county, for six months, and not having been claimed by any person, will on the 14 th October next, at the Court House of Mobile county, at the hour of 12 o’clock, M. be sold in pursuance of law, to pay jail fees, and other expenses.
    JOS. BATES, jr. Sh’ff Mob. co,
    September 14, 1833.”

      This last advertisement was followed by the one subjoined, to wit:
    “The above sale is postponed until Monday, 21st October, inst. JOS, BATES, Sh’ffMob. co.
    October 12,1833.”
    The notices last above, were continued until the twenty-sixth day of October, eighteen hundred and thirty-three, at which time the negro was sold, and purchased by the defendant.
    The then sheriff of Mobile county, testified, that he did not put up the said advertisement at the Court house, or any other public place, and gave no other notice of the sale, than the advertisement published as last aforesaid.
    Upon this testimony, which was all the evidence in the cause, the plaintiff requested the Court to charge the jury, that unless the sheriff published the commitment of .said slave, six months after the appearance of the first advertisement of commitment; and a notice of the sale, for thirty days after the expiration of the six months, as aforesaid, in some newspaper in this State, at the court house of the proper county, and at least two other public places within the same, he conveyed no title to the purchaser.
    This charge the Court refused to give, and instructed the jury, that the title to the slave would be good in the purchaser, though the sheriff did not set up the several advertisements, at the different places, unless the jury believed there was fraud, or collusion between the sheriff and the purchaser; and that if the plaintiff was injured by the acts or misconduct of the sheriff, his remedy was against him.
    To which charge, and refusal to charge, the plain-» tiff excepted.
    It was assigned for error here, that the Court erred, as set forth in the bill of exceptions.

      Campbell for plaintiff in error — Stewart & Thornton, contra.

       Aikin’s Digest, 395, 25.

   HOPKINS, C. J.

The action in this case was detinue for a slave.

Upon the trial of the issue between the parties, in the Circuit Court of Mobile county, the plaintiff offered evidence, which conduced to prove that he had the right of property in the slave. The defendant claimed the property in the slave, under a sale made by the sheriff of Mobile county. In support of his claim, he proved that the slave was legally committed to the jail of Mobile county, on the thirteenth day of March, eighteen hundred and thirty-three : that the first publication of the commitment was .made, by the sheriff, in the Mobile Commercial Register, on the nineteenth of the same month, which he continued to make in the paper, until the fourteenth of September, eighteen hundred and thirty-three, inclusive. On the last mentioned day, the sheriff advertised the slave for sale, at the proper place, on the fourteenth of the next October afterward, and on the twelfth of October, the sale was postponed, by an advertisement of the sheriff, until the twenty-first of the same month. On the last mentioned day, the slave was sold by the sheriff, and the defendant became the purchaser. It was proved by the sheriff, that he did not put up an advertisement of the .sale, at the court house of Mobile county, or at any other public place, and gave no other notice than the advertisement that has been mentioned, which he published in a newspaper.

The plaintiff requested the Court, to instruct the jury, that unless the sheriff published the commitment of the slave, six months after the appearance of the first publication of the commitment, and a notice of the sale, for thirty days after the expiration of the said six months, in some newspaper in the State, at the court house of the proper county, and at least two other .public places, within the same; his sale conveyed no title to the purchaser.

These instructions the Court refused to give, and charged the jury, that the title to the slave was in the purchaser, although the sheriff did not set up the several advertisements at the different places, unless the jury believed there was fraud and .collusion, between the sheriff and purchaser; and that if the plaintiff was injured by the acts or misconduct of the sheriff, his remedy was against the sheriff.

To the opinions of the Court, the plaintiff excepted, and the questions which arise from the assignments of error, are, whether or not the Court erred in refusing or giving the instructions, that have been mentioned.

The only source of authority which the sheriff had to sell the slave, is in the act of eighteen hundred and nine; which authorizes the commitment of any runaway slave to jail, and provides that if any “ such runaway slave shall not be claimed,, and proved by the owner thereof, within six months from the first publication of the commitment of such slave, in some newspaper published in this State, it shall be lawful for the sheriff of the proper county,, to sell said runaway slave, at public auction, at the court house of his proper county, upon- giving at least thirty days previous notice, of such sale, by advertisement, published in some newspaper in this State, at the court house of the proper county, and at least two other public places within the same.”

The publication of the commitment of a slave, is required for the benefit of his owner. It is a source from which the master, will more probably learn, than from any other, where the fugitive is. It is the duty of Courts to give such a construction to the act, as will carry the intention of it into effect. The act does not prescribe the number of publications, or the time through which the sheriff shail continue to make them; but it does not au-thorise him to make any preparation to sell, until six months after the first publication. The terms of the act show that the intention of it cannot be executed by one publication. The object of the act in requiring the publication of the commitment, was, to open a source of information for the benefit of the master. As it withholds authority from the sheriff, for six months, to take any measure for a sale, and requires more than one publication, we think the number of the publications intended by the act, is limited by the numbers published of the newspaper, which contains them, from the first publication of the commitment, to the end of the six months. But if the publication be continued to the last number of the newspaper, that was published before the expiration of the six months, and be made in that number, it would be sufficient.

It appears from the record, that the last publication of the commitment, was in the newspaper in which it was first made, and had been continued, on the fourteenth of September, a few days only before the six months expired; and it does not ap-, pear that any number of the newspaper was published, between that day and the end of the six months. If it had been proved that no number was published afterward, and before the termination of the six months, the publication would have been sufficient. The publication must be proved by the party, whose right depends upon it; and as the defendant did not prove, that it was made in the paper as often as it could have been, within the six months, we are of opinion, there was a failure to prove the publication required by the statute.

The next question is, as to the authority of the sheriff to advertise the sale before the expiration of the six months. If at the end of the six months, the master should claim and prove his property in the slave, there would be no right in the sheriff to sell; and it cannot be the intention of the act, that he shall have authority to advertise a sale, before it is known that one will be necessary. If he had the authority, and should exercise it, the consequence would be, that the master who proved, at the end of the six months, his right to the slave, would be bound to pay the cost of the advertisement. To exempt the master from such charge, and to avoid the inconsistency of the sheriff’s acting, while it is uncertain whether he will ever have a right to sell, as if he had acquired it, the act ought not to be so construed as to give him an authority, which the terms of the act do not confer.

We think, therefore, that the notice of the sale, must be given for thirty days after the expiration of the six months.

This notice must be given by advertisement, published in some newspaper in this State, at the court house of the proper county, and two other public places within the same county, because the act requires it. If we were convinced of the truth of the argument, which was relied upon by the defendant’s counsel, that no more persons would have known of the time and place of the sale, if the omitted advertisements had been made, than did' know these facts, from the one published in the paper, we could not disregard the part of the act that requires them. The reasoning in a future case, might be as plausible in support of such a sale, made upon advertisements at the proper public places only,' upon the ground that the circulation of every newspaper in the State, was so limited in the county, where the sale was made, the publication of an advertisement in any, could not have made the notice more general than it was.

The operation of the act ought to be uniform, and the rule of action which it prescribes, observed in every county.

The case of Fitch vs Dunlap, cited for the fendant, is not opposed to the construction we have given to the act. In that case, an act was constrm ,ed, which required that notice of the sale of land, should be given for at least thirty days, before the sale, by advertisement in some newspaper, printed in the county where the lands were situate; or in case no newspaper be printed within said county, then in some newspaper in general circulation therein, and by putting up an advertisement upon the court house door, and in five other places in the county.

The Court decided that the effect of the disjunctive “ or,” which was used in the sentence, was to make two clases of cases, and that where the advertisement was published in a paper, printed in the county in which the land was situate, no advertisement elsewhere, was required; but where there was no newspaper in such county, the advertisements'should be put up at the places directed by the act.

The case cited from 3 McCord’s Rep. 290, was upon a similar act, which divided the cases, in which it required notice, into two classes, and prescribed a different mode of giving notice in each class.

The sheriff had no general authority, as sheriff, to sell runaway slaves, but a special power conferred by the act. The grant of the power was accompanied by directions, to regulate the exercise of it. If he had executed it properly, the property of the owner of the slave, would have been transferred to the purchaser. The principle applicable to such a case is well settled, “that the person invested with such a power, must pursue the course prescribed by law, or his act is void.” Any person who purchases of him, is charged with knowledge of the extent of his power. Every act the sheriff is required to do, under this act, is, if performed, a constituent part of the title of the purchaser, from him, and evidence of each one of them must be given, in support of a title, set up under a sale, by the sheriff, in such a case.

The effect of the proviso to the act, upon sales, is .confined to sales made according to all the tions of the act. Such sales only, are valid.

We are of opinion, that the Court erred in refusing the instructions for which the plaintiff moved, and in the charge that was given.

The judgment is reversed, and the cause remanded.

GOLDTHWAITE, not sitting.

      Aik. Dig. 395.

      2 Ham. R. 78.

      4 Wheat. 77-6 Ib. 119, 125: 9 Ib. 607 628. Paley on Agency, 150, 151.


text:
    CHILDRESS VS M’CULLOUGH and RICHARDSON.

      As to joinder of several defendants, in covenant.

    1. Two, covenanting with another, by distinct and separate writings, — the one for the performance of several duties, and the Dther to become the surety of the other, to the performance of his covenants, — cannot be joined in the same action, to recover for a breach.
    In error to the Circuit Court of Tuskaloosa county.
    James Childress complained of James M’Cul-lough and John Richardson, in an action of covenant — “For that whereas, on the twenty-ninth day of January, eighteen hundred and thirty-three, at the county aforesaid, the defendant, James McCullough, by his certain writing, signed with his hand, and sealed with his seal, and which is now here shewn to the Court — the date whereof, is the same day and year aforesaid, covenanted and agreed to, and with the said plaintiff, in manner following in substance, to wit:
    “These articles of agreement, between James Childress of the one part, and James M’Cullough of the other part, witnesseth: that the said James Childress has leased unto the said M’Cullough, for the term of two years, from the first day of January, eighteen hundred and thirty three, his plantation, situated on the Warrior river, five miles below the town of Tuskaloosa; together with the planta-tioa tools, all the stock of cattle and hogs, four mules', one blind horse, and the following negro slaves, to wit: Bill, Isaac, Argus, Lawson, Ben, Bob, Frank, Charles, Abner, Moses, Little Bill, Sandy, Catha-rine, Soloman, Sarah, Judy, Rhody,'Jenny, Rachel, Anny, Hannah, Patience, Eliza, Louisa and Mary.
    In consideration of the premises, the said M’Cul-lough agrees to pay to the said Childress, two thou-san d dollars, on the first day of February, eighteen hundred and thirty-four, and two thousand dollars, on the first day of February, eighteen hundred and thirty-five: He is also to pay the said Childress twelve thousand pounds of good pork, one half in December next, and the other half in December, eighteen hundred and thirty-four; he is to pay said-Childress, four thousand bushels good sound corn, and twelve thousand pounds good fodder, one half of each to be paid in October next, and the other half of each, in October, eighteen hundred and thirty-four: M’CuIlough is to have one half of the increase of the cattle, and is to furnish Childress constantly with three milch cows.
    “At the end of the lease above made, M’cullough is to return to Childress, the same amount of hogs, which he now receives; and also, the same amount of cattle, together with one half their increase. M’Cullough is to furnish each of the male slaves, above named, with three shirts, three pair of pantaloons, a roundabout, a hat, blanket and pair of shoes; and the women with three shirts, three frocks, a blanket, hat and pair of shoes, annually. M’CuIlough is to pay the State and county tax, on the above named negroes and physician’s bill, for attending any of said slaves in sickness; each of the negroes is to have three pounds of bacon, and one peck of meal per w,eek. M’Cullough is to find provisions for the children of Anny and Hannah, and Childress, to furnish them with clothes. M’Cullough is to have the privilege of clearing as much land as he may wish, on the upper part of the plantation. He is to return the-plantation in good repair, at the expiration of the lease, and build a picket fence, running north and south, on the lower part of the plantation. He is to return the plantation, negroes, tools, mules, cattle, hogs, and all things hereby leased, to the said Childress, on the first day of January, eighteen hundred and. thirty-five. It is expressly understood, that if on the first day of February, eighteen hundred and thirty-four, the said M’Cullough shall be in default, as respects any of the things by him undertaken to be done, on that or any previous day, the said Childress shall have the privilege then, or any time, to enter upon said plantation, and take possession of all things hereby leased, and to declare said lease at an end and expired. The negroes are not, to be taken off the plantation to be worked, without the consent or permission of the said Childress.
    “M’Cullough is to re-set the fence, inclosing the ground at Childress’s residence, putting four new rails in each pannel, and to cut and take care of the oats, which may be raised on said ground last named. In order to secure the fulfilment of the stipulations of the said M’Cullough, he agrees to execute his promissory notes, with security for the money, corn and pork, by him agreed to be paid, as above stated. In witness of all which, the parties have hereunto affixed their hands and seals, this nineteenth day of January, eighteen hundred and thirty-three.
    JAMES CHILDRESS, [l. S.]
    JAMES M’ctJLLOUGH, [i,. S.]
    Test, THOMAS B. CHILDRESS.”
    “And whereas, afterwards, to wit, on the twentieth day of September, eighteen hundred and thirty-three, at the county aforesaid, by a certain other writing, signed with their hands, and sealed with their seals, and now here to the Court shown, the date whereof is the same day and year aforesaid, in relation to, and in futherance and continuance of the first original contract and agreement, in the previous part of this declaration mentioned, and in substance hereinafter set forth, did covenant and agree to, and with each other, in substance as follows, to wit:
    “Whereas, an agreement was entered into by James Childress and James M’CuIlough, on the twenty-ninth day of January, eighteen hundred and thirty-three, by which the said Childress leased unto the said M’Cullougb, his plantation, negroes, mules, stock, &c. And among other matters, set forth in the said agreement, the said M’CuIlough bound himself, in order to secure the fulfilment of the stipulations of (him,) the said M’CuIlough, and agreed to execute his promissory notes, with .security, for the money, corn and pork, by him agreed to paid, in said contract: And whereas, the said M’Oullough failed to give the security - so mentioned and agreed in the said contract; hut gave his own promissory notes, which bear date on the seventh day of March, eighteen hundred and thirty-three, and on the same day, the said Childress and M’Cullough, entered into an agreement, by which the said M’Cullough, conveyed to the said Chil-dress, certain property therein mentioned, belonging to him, M’Cullough, and also gave him a lien on the crops to be made: all of which will more fully appear by reference to said agreement.
    “And whereas, the said M’Cullough is desirous of securing the said Childress, more fully in the performance of the first mentioned contract, has this day made and executed his promissory notes, with ■-Richardson, as his security. It is expressly understood that the said notes, with the said Richardson as security, are given as collateral security, to the said Childress, to secure the full compliance and performance of the contract before recited, and not in discharge or payment of any of the said contracts, or of the notes given by the said M’Cullough.
    In witness whereof, the said Childress and M’Cul-lough, have this twentieth day of September, eighteen hundred and thirty-three, signed their names, and affixed their seals.
    “JAMES CHILDRESS, [l. S.]
    “james m’cullough, [l. S.]
    “And whereas, afterwards, to wit, on the-day of September, eighteen hundred and thirty-three, at the Circuit and County aforesaid, to wit, on the same day and year of the date and execution of the last mentioned agreement, the said defendant, John Richardson, by his certain writing, obligatory, under seal, and signed with his hand, and here now to the Court shewn, — the date whereof, is not stated, as of the day aforesaid, but September, 1833,” — by which said last mentioned obligation, he contracted, agreed and covenanted, in substance, as follows, to wit:
    September, 1833. — I have this day executed my promissory notes to James Childress, as the security of James M’Cullough, for the payment of the money, corn and pork, stipulated to be given by him, in a contract entered into by the said Childress and the said M’Cullough, for the lease of his plantation, negroes, stock, &c. dated on the twenty-ninth of January, eighteen hundred and thirty-three. I agree and hereby bind myself, to become the surety of the sáid M’Cullough, for the performance of his part of the said contract, besides the giving the notes. The notes above recited are for the payment of money, &c. and will be due Childress, for the present year, and my undertaking as his further security, extends no further than to the performance of the contract, by M’Cullough, in the present year.
    In witness whereof, I have hereunto set my hand and seal. john rxchardson. [l. s.]
    By virtue of which said first mentioned covenant, between said plaintiff and the defendant, the said defendant, McCullough, on the first day of January, eighteen hundred and thirty-three, on the premises therein described, entered and took the possession of all and singular the premises therein named, with the appurtenances, as well also the slaves, cat-tie, mules, hogs, horses, and farming utensils or. tools, in said deed or covenant set forth and der scribed, or referred to by the same, and of the premises and appurtenances, slaves, cattle, mules, hogs, horses, and plantation utensils or tools, became and was possessed thereof according to the tenor and effect of the said agreementor covenant last referred to. And although the said plaintiffhath always from the time of making said agreement, hitherto well and truly performed, fulfilled and kept, all' things in said agreement contained on his part and behalf, to be performed, fulfilled and kept, according to the tenor and effect, true intent and meaning of said agreement, to-wit, at ■-aforesaid; yet protesting that the said defendant, McCullough, or the defendant, John Richardson, as security on his part, hath not performed, fulfilled or kept any thing in said agreement contained, on their part and behalf to be fulfilled, performed and kept, according to the effect, tenor, and true intent and meaning of the said several irisfruments, obligations or agreements in writing herein before in substance set forth, as signed, and by the parties therein designated and described. And the said plaintiff avers, that the said defendant, McCullough, on the first .day of January, eighteen hundred and thirty-four, did abandon and leave vacant the premises, stock, &c., and that the said McCullough having failed to comply with any part of his covenants and agreements, or his said security, the said defendant, Richardson, for him, he the plaintiff did thereafter, to-wit, .on the fifth day of January, eighteen hundred and ¡thirty-four, rerenter upon said premises, as lawfully ? by said covenant, be b id a right to do. Yet the said defendant, McCullough, did not, nor would keep and perform or fulfill his said covenants, or the said defendant, Richardson, at any time for him, but the same covenants are broken in this, to-wit.”
    The declaration then proceeded to set out, at length, divcis omissions of the defendant, McCullough, to perform the duties stipulated to be done under his covenants — all which were assigned as breaches.
    On a general demurrer to the declaration, judgment was rendered for the defendants ; and Chil-dress took a writ of error.

      Crabb and Porter, for plaintiff in error — Ellis and Peck contra.
   GOLDTHWAITE, J.

This action, in its form, is covenant; and the declaration sets forth a contract ujrder seal, dated twenty-ninth January, eighteen hundred and thirty-three, entered into by the plaintiff, with the defendant, McCullough — by which it appears, thai.McCullough covenanted to perform several duties, and make several payments, which it is unnecessary to recapitulate, hut which were to be performed and paid at several times during the years 1833 ancl 1834. It also sets forth another contract under seal, between the same parties, dated the twentieth September, eighteen hundred and thirty-three, which does not seem to change the previous contract, except so far as to discharge McCullough from one of his stipulations. It also sets forth a contract, under seal, between the plaintiff, and the defendant, Richardson, dated September, eighteen hundred and thirty-three; by which Richardson covenanted with the plaintiff to become the security of McCullough for the performance of his part of the contract, before entered into by him with the plaintiff — so far as the same extended to the then present year.

Many omissions of the duties to have been performed by McCullough, under his contract, are assigned for breaches of the covenant, and it avers omissions of acts to be done by him in eighteen hundred and thirty-four as well as eighteen hundred and thirty-three.

To this declaration the defendants demurred, and judgment was thereon rendered in their favor. The correctness of this judgment, is now sought to be reversed.

The objection to which this declaration seems liable, is the misjoinder of the parties defendant.

It is a well recognized rule, that Courts of law, will not take cognizance of distinct and separate claims, or liabilities of several persons in one suit, though standing in the same relative situations.

In the present case, M’Cullough and Richardson, were each liable to the plaintiff, on their several covenants, but by different instruments, and not to the same extent. M’Cullough was liable absolutely; Richardson was only liable, in the event of the failure of M’Cullough. M’Cullough was liable for two years — Richardson for one, only. And although the contract of each, was in relation to the same subject matter, it would by no means follow, that they are liable as joint contractors. There is no more reason, to assume a joint liability in this case, than in the case of the maker and endorser of a promissory note. Then the contract of each party is in reference to the same subject matter, yet the liabilities are perfectly distinct and several in their character.

That the defendants were not liable as joint contractors, and should not have been sued as such, is, we think, obvious; but one illustration may be drawn, from a well settled and acknowledged principle of law. All joint contractors are liable in the same manner, as each other, and a release of one, is the release of all.

Test the case by this rule, and it would if the .defendants are joint contractors, that M’Cul-lough would be released, if a release was given to Riehardson, That this would not be the effect of a release to him, under .the case presented, is without doubt.

There was therefore, no error in the judgment of the Court below., and it must be affirmed.

COLLIER, J. not sitting.

      1 Chitty's Plead. 33.

       Coke on Litt. 232 L. M. S. 376.


text:
    PISTOLE VS STREET, adm'x.

      As to reference of legal questions to a jury.

      As to the powers of one, administrator in right of the wife.

    1. Where a bill of exceptions, shews that an inferior ’ Court, with other subjects, refered to the determination of a jury, has included a legal question, it will not be presumed that that particular question, might have been determined by the Court, because other instructions appear to have been given, which are not particularly set out.

      2. Where an administratrix marries, the husband during the joint lives of the wife and himself, is invested with all the rights of the administration, and she becomes incapable of controlling the properly of her intestate, or the acts of her husband, in disposing of it.
    3. Thus — where one, being an administratrix, marries, and the husband sells the personal estate of her intestate, during coverture — she cannot after iiis death maintain an action, in her capcaity of administratrix, to recover the property thus sold.
    4. Where in such case, a statute of South Carolina was relied on, which declared all sales of personal property by administrators or executors, without an order, &c. void — it was held, that the act, being intended for the protection of creditors and legatees or distributees, against personal representatives and their vendees; and not for the security of the representrtives against their own wrongful acts, — the administratrix could not., under it, avoid sale of property made by her husband, during coverture.
    On a writ of error to the Circuit Court of Ma-rengo county.

      Tirza Street, as the administratrix of the estate of Eleaza Lee, declared against Caiuan Pistole, in the action of detinue, for a slave.
    To the declaration there was a demurrer, which being sustained; the plaintiff had permission to amend. The defendant then pleaded — ■

      First. — non detinet.

    Secondly. — A special plea that .the plaintiff was not the administratrix of Eleazer Lee : and thereupon came a jury, who found a verdict for the plaintiff.
    It was shown by a bill of exceptions, taken in the progress of the cause, that among other facts proved by the plaintiff and defendant, it appeared in evidence, that the said plaintiff administered upon.the estate of her first husband, Eleazer Lee, in the State of South Carolina, in the year, eighteen hundred and twenty, of which said estate, the negro slave, in controversy, was a part: that her said administration being still unclosed, after the grant thereof, she intermarried with George P; Street, and afterwards removed with him, from the State of South Carolina, and settled in said county of Ma-rengo, — bringing with them, the said negro: that some time after their settlement in said county, the' said George P. Street, sold the said slave to the defendant. As to whether the said plaintiff made any disclosure as to the title to the said slave, though cognisant of the sale, there was some discrepancy in the proof. Some time after the sale, said George P. Street died.
    It appeared in evidence, that a law was passed by the Legislature of South-Carolina, in the year eighteen hundred and twenty-four, some four or five years previous to the defendant’s purchase of the said slave, in the words following:
    “And be it further enacted, that on all sales of personal property, hereafter to be made by executors and administrators, they shall first obtain an order from the Court of Ordinary or the Court of Equity; and no sale hereafter made without such order, shall be valid in Law or Equity — except it be directed by the will.”
    The Court, among other things, instructed the jury, that the right to administer the estate of Ele-azer Lee, devolved upon the said George P. Street, by virtue of his intermarriage with the administra-trix; and during the continuance of the covertur e of the administratrix, her right as such became superseded; but when she became discovert, by the death of the said George P. Street, she had the right to administer the estate of the said Eleazer Lee, so far as it remained un ad ministered: and if the sale by the said George, to the defendant, of said slave, passed to him no title, she, might then as such administratrix, maintain her action to recover him.
    The defendant, by his counsel, moved the Court to instruct the jury, that the plaintiff, being a dis-tributee of the estate of Eleazer Lee, deceased, her share, by her intermarriage with George P. Street, vested in him; that he had a right to sell it; and a sale by him, made his vendee, and the other distributees, tenants in common; so that the plaintiff could not maintain her action. Whereupon the Court remarked, that no proof had been offered, to shew that there ever had been any distribution of the estate of Eleazer Lee; nothing to shew that George P. Street, ever possessed himself of that estate, as husband of the plaintiff, so as to vest a title in himself, in that character; and the only title he could have claimed in the property, so far as we are informed by the proof, was under his administration in right of his wife. And though it were granted,- (and the Court was willing to concede it,) that the plaintiff was entitled to the distributive share of the estate of Eleazer Lee, yet as a distribution, or some act equivalent in law, must have been made or done, in order to have divested the legal title of the administratrix of Eleazer Lee, and vested it in her husband, George P. Street — this not being been done, the instruction prayed, could not be given.
    To all which defendant excepted, and took a writ of error.
    Erwin, for plaintiff in error — Stewart & Thorn-ion, contra.
   HOPKINS, C. J.

The defendant in error, obtained letters of administration, upon the goods and chattels of Eleazer Lee, deceased, in the State of South Carolina, in the year, eighteen hundred and twenty; and was afterward married to one George P. Street, with whom she moved to this State, before her administration was closed. They brought with them, to this State, the slave in controversy between the parties. The slave came to the hands jof the administratrix, as a part of the personal property of her intestate. Some time after the settlement of her husband and herself in Urn State, he sold the slave to the plahdiif in error. Several years before the sale, a statute was exacted by the Legislature of South Carolina; the effect of which ■is to annul at law, and in Equity, all sales of personal property, made after the passage of the act, by executors or administrators, without an order previously obtained, from a Court of Equity or. a Court of Ordinary,,except such sales were directed by will.

After the death of George P. Street, the defendant in error, as administratrix of Lee, brought the action of detinue in this case, against the plaintiff in error, to recover the slave.

Upon the trial of the cause, the Court below, instructed the jury, that the right to administer the estate of Lee, devolved upon George P. Street, by his marriage with the administratrix, and during the continuance of her coverture, her rights as ad-ministratrix, were suspended; but after the death of her husband, she had the right to administer the estate of her intestate, so far as it remained unad-ministered, and if the sale, by her husband, of the slave, to the plaintiff in error, passed no title to him, she might now, as administratrix, maintain her action to recover the slave. These instructions, together with others, which we do not deem it material to take notice.of, were excepted to by the plaintiff in error.

One objection to a part of these instructions is, that the Court submitted the legal question, whether the sale transferred any title to the purchaser, to the jury, to be determined by them. It is contended by (he counsel, for the defendant, that this objection does not show there was any error in the •instructions, because it is admitted in the bill of exceptions, that other instructions were given, which do not appear in it, and if they had been inserted in the bill, it might appear that the Court did decide the question. If cannot, we think, be reasonably intended, that a Court, omitted in a bill of exceptions, any part of the opinion to the jury, upon the same subject that the part excepted to, related, and which would show that the latter part was proper. In practice, it is usual, where one instruction is excepted to, and it is connected with or qualified by another, which was also given, to insert ■the latter in the bill of-exceptions. The party who .excepts, has no right to garble an opinion, and the presumption is, a Court would not suffer it to be clone.

The question, whether the plaintiff in error acquired any right under the sale, did arise from the proofs in the cause; and from the record, it appears, the question,' which was a legal one iii its character, was referred to the jury. We think it probable, that one word was substituted for another, by mistake, either in preparing the bill of exceptions, or in transcribing it. But we have no alternative. The point must be decided as the record presents it, and for the error in refering a legal question to the jury, the judgment must be reversed.

As the question, whether the administratrix can maintain the action, was argued at the bar, and the cause must be remanded, we shall express our opinion on the point.

The principiéis, we think, well settled, that upon, the marriage of an administratrix, her husband acquires all the rights of the administration, for the joint lives of his wife and himself, as fully as if it had been granted to himself.

During the coverture, the administratrix is incapable of doing any valid act, in relation to the property of her intestate, or of controlling the husband in any disposition he may chose to make of it.

As she voluntarily entered into the marriage, the effect of which, made her husband the administrator in her right, his disposition of the property is treated as her own, and the legal consequences of his acts in relation to the property, are the same to her, as if she had not been a feme covert, and the same acts had been done by herself. As she survived her husband, the rights of the administration survived to her; but she can avoid no act which he did, upon the ground that it was done without her knowledge, or against her consent. If the sale were made without authority, it was a. wilful breach of trust in the administratrix and her husband, for which the creditors and distributees of the intestate, if there be any of either class of persons, are not without a remedy; but the administratrix has no rightt to maintain an action to repair the devastavit. She has converted the slave to her own use, and for that injury to the persons who may be beneficially enti-tied to the property of her intestate, she is responsible as administratrix; and there is no principle which enables her to avoid the responsibility, by recovering the slave, against a sale that must be treated as her own. Wp know no case, in which a trustee, who had converted the property he held in trust, has been allowed to recover it of his vendee.

The object of the act of South Carolina, which is a part of the evidence in this case, was the tection of creditors and legatees or distributees, against private sales of the property. Such sales might be made in many cases, at prices greatly less than the value of the property, and where the excess of the value over the price accounted for, might be divided between personal representatives and their vendees, and the classes of persons now protected by the act, would be unable to prove the fraud and avoid the sales. The act was made to increase the facility of avoiding frauds. The protection intended by it, is for the classes of persons which have been mentioned, against personal representatives and their vendees; and not for such representatives against their own wrongful acts.

The case of a personal representative, who attempts to avoid his unauthorized sale, is not within the mischief, for which the act intended a remedy, and such a representative is not entitled to the remedy. The remedy given by every act, like the one in this case, is always limited to the mischiefs, the act was intended to prevent. '

It has been decided, that an act which declared every gift, or conveyance of land, and every other contract made' to defraud creditors and subsequent purchasers, utterly void, did not enable a donor or grantor, to avoid his fraudulent gifts, or his conveyances.

The judgment is reversed, and the cause remanded.

COLLIER,. J. not sitting.-

       1 Wm’s Ex. 408— 2 Ib. 632, 633, 634.

       2 Wm’s Ex. 632, 633,

      1. Wm's Ex. 403— 2 Ib. 613, 1129, 1130.

      1 Ham. R. 469. Ohio Con. R. 207. 1 Stew’ts R. 278. 18 John’s R. 515.