text:
    MORDECAI vs. BEAL.
    1. The best evidence the subject admits of, must always be produced; and if evidence of an inferior grade is offered, it raises the presumption, that .the higher testimony is withheld for some sinister purpose.
    2. Before ■ videnco of an inferior grade is permitted to be adduced, the court will require satisfactory proof that better evidence is not voluntarily withheld: and the sufficiency of such proof is a question for the discretion of the court, to be governed by the circumstances of the ca^c.
    3. Where a paity proved, that a deed under which he claimed a personal chattel once exirted, and was in the possession of one who had intermarried with the grantee of the deed, and resided beyond the limits of the State; that the deed had been demanded, but uot produced; that enquiry had been made without effect of other persons, who, it was supposed, might -have possession of it; and where there was an offer to prove its contents by a registered copy, — it is sufficient — and inferior evidence of the contents of the deed may be admitted.
    4. The assent of an executor to a legacy, vests in the legatee the legal title, — the assent having relation to the will, the source of the legatee’s title.
    5. But an executor cannot, by any act under pretence of assent, enlarge or abridge the title of the legatee.
    6. Where one, by his will, appointed certain agents to make a division of his personal estate, and in case of the death of either of them, authorised tho survivor to appoint others in the place of those deceased, to assist in malting the division — a recital contained in a paper, purporting to be the evidence of such division, and made by agents purporting to have been appointed by the survivor, is not sufficient evidence of the fact of the appointment. Proof of the fact, against one not claiming under the paper, purporting to be a division, must be made by evidence ntiundr.

      Error to the Circuit court of Mobile.
    Detinue for a slave, tried before Judge Paul. Verdict and judgment for plaintiff.
    On the trial of this case, plaintiff below offered in evidence a copy of the will of Nathan Beal, and a paper, a copy of which is attached, marked A, purporting to be a division of the property mentioned in the will. He also proved, that he was the person called James A. Miller,, in the will; and that the negro sued for, was one of the negroes named in the will; and that the plaintiff was not twenty-seven years old at the commencement of the suit; and that the negro was in possession of defendant, when the suit was brought. He also proved by B. S. Smoot, that the paper signed by him, and marked A, was made at his house, in Mobile, on the day it bears date; and it was admitted that no one of the negroes was present at the time, and that none of them were ever shown to the persons who signed said paper before or afterwards. Upon this proof, the plaintiff rested.
    ■ Defendant then offered to prove by John Philips, that after the making of the will, and in the life time of Beal, the testator, he was present at the house- of said Beal, in Washington county, when he, said Beal, sold and delivered the negro sued for, with several others, to Sarah Garnet, who received possession of the same, and retained the same during the life time of said Beal. That Beal died in eighteen hundred and eleven, or eighteen hundred and twelve, and that Sarah Garnet continued in the possession of the slaves, until eighteen hundred and thirteen, when she intermarried with John S. Devin, who took possession of the negroes in right of his -wife, and retained the possession thereof, until eighteen hundred and sixteen^ or eighteen hundred and seventeen, when he sold the negro in this suit mentioned, to Thomas J. Strong, who retained possession thereof, until eighteen hundred and twenty-one, when he died. Plaintiff’s counsel asked the witness, if there was any deed of the sale of said negroes, to said Sarah Garnet, and upon his answering in the affirmative, the court excluded the testimony offered, until the deed should be produced, or its non-production accounted for. To this decision, defendant excepted.
    Defendant then offered to prove, that enquiry had been made of John S. Devin, for the deed, who could not produce it. He also offered to read an affidavit of John S. Devin, that the deed was mislaid, and to prove that Devin was in Florida, beyond the jurisdiction of the court; and also that enquiry had been made of other persons, wffio might be presumed to have the deed, and that it could not be found. Defendant also offered a copy of the deed, taken from the records of Washington county, and a witness to prove that the copy was a correct transcript of the original. The court declined receiving the evidence, as insufficient to prove the loss of the deed; to which defendant also excepted.
    Defendant then moved the court to instruct the jury, that if the property in question was held adversely to the claim of the defendant, at the time the paper purporting to be signed by Smoot and others was made, that the paper was void, and gave no right to the plaintiff. This the court declined, and instructed the jury, that the paper operated as a legal division of the property; to which defendant excepted.

      The will was dated on the twenty-eighth of March, eighteen hundred and nine, and declared, that for the natural love and affection, the testator had towards Sarah Garnet, and Jaco!) Garnet, and Janies Augustus Miller, and any other children the testator might have by Sarah Garnet, “ I give and grant them the following negroes, accounts, notes, &c.. viz. one negro man named Dick, one negro Joe, one boy named Ned, one boy named Cupid, one hoy mune-l Jack, one woman named Rose, one named Minerva, one girl named Hetty, together with their increase: and also the stock of horses, cattle, and hogs, together with the bonds, debts, and book accounts, that are due me,' — to be equally divided between Sarah Garnet, and the children I may have by her,,and James Augustus Miller and Jacob Garuet; but it is to be understood, that at lhe death of the said Sarah Garnet, she is to give her part of the property to the children she may have by me ; and if Sarah Garnet has no other children by me, then, at her death, the above named property is to be divided between James A. Miller and Jacob Garnet.
    I authorise Lemuel Henry, Sarah Garnet and Thomas J. Strong, my agents, with full power to collect my debts, and make the distribution above stated; and if one or 'more of them should die, the surviving agent shall have power, and is required to appoint two more agents to execute the trust herein confided,” &c.
    The paper, marked A, and submitted in evidence by plaintiff, was as follows:
    “ Whereas by the last will and testament of Nathan Beal, deceased, late of Washington county, the said Nathan Beal appointed ids wife Sural), and Lemuel Henry and Thomas J. Strong; to execute the sumo, with the provision, that if any two of them should die,, then, in that case, the survivor w;as authorised and required to appoint two other persons in their room, place and stead; and whereas tiie said Lemuel ilehry and Thomas J. Strong, have, since the death of the testator, departed this life, and the surviving executrix, Sarah, (now Sarah Devin,) has, with John S. Devin, her present husband, proceeded, under the directions of the said last will and testament, to nominate and appoint; and they have nominated and appointed Benjamin S. Smoot and Samuel II GSarrow, to act with her and the said John S. Devin, under the said last will and testament, as executors thereof, and to execute the same. Now, therefore, know, &c. that we, the said Sarah, (now Sarah Devin,) John S. Devin, Benjamin S. Smoot and Samuel H. Garrow, have proceeded, under the authority given by the said last will and testament, to divide the property therein mentioned, as therein directed ; and we have assigned to James A. Beal, mentioned in said last will and testament, by the name of James Augustus Miller, — to hold, to him and his heirs- and assigns forever, as of his aud their own property,— that is to say, one negro man named Ned, one negro man named Cupid, one negro man named Joe, one negro boy named General, one named Casey, one' named Bob, one negro woman named Minerva, and one negro woman named Rose, and child.
    “ In testimony of all and singular the premhes, we have hereunto subscribed our names and affixed. our ¡seals, this eighteenth day of October, A. D. eighteen hundred and thirty-five. (Signed,)
    Witness i “ Sarah Devin, [l. s.]

      “Charles E. Crane, “ J. S. Devin, [l. s.J

      “David Nolan, ■ “ Ben.t. S. Smoot, [l. s.]

      “Charles A. Henry.” “ S. H. Garrow, [l. s.”]
    The copy of the deed, or bill of sale, taken from the records of the County court of Washington county, offered in evidence by defendant, and excluded by the court, was as follows:
    “Washington county, Mississippi Territory:
    “Know all men, by these presents, that I, Nathan Beal, of the said county, for, and in consideration of the sum of two thousand eight hundred and seventy-five dollars, to me in hand paid, before the sealing and delivery of these presents, the receipt of which is hereby acknowledged, have bargained, sold and conveyed, unto Sarah Garnet, of said county, eleven negroes, viz., Robert, Rose, Jack, Lucinda, Joseph, Dick, Ned, Hetty, Cupid, Nancy and Dinah, to have and to hold said negroes, to said Sarah, her heirs and assigns forever, against me, my heirs, executors, administrators and assigns.
    “In testimony whereof, [ have hereunto fixed my hand and seal, this ninth of June, eighteen hundred and ten. In presence, $*c.
    (Signed,) “Nathan Beal, [l. s.”]
   ORMOND, J.

— Two questions arise in this case:

First — Was the preliminary evidence offered by the plaintiff in error, on the trial in the court below, sufficient.to authorise the introduction of secondary proof of the contents of the deed ?•

Secondly — Was the paper executed by Smoot and others, a legal division of the slaves?

The rule of law is, that the best evidence' which the subject admits of, must always be produced'; and if evidence of an inferior grade is offered, it raises the presumption, that the higher testimony is withheld for some sinister purpose. Before, therefore, testimony of an inferior grade is permitted to be adduced, the court to whom the preliminary enquiry is addressed, will require satisfactory proof, that the better evidence is not voluntarily withheld.

What shall constitute this satisfactory proof, to authorise the introduction of secondary evidence, cannot easily be reduced to any fixed rule; it is addressed to the discretion of the court, to be governed by the circumstances of the case. The plaintiff here proved, that the deed once existed, and was¡ in the possession of one John 8. Devin, who had intermarried with the grantee of the deed; that the deed had been demanded from him, and that he did not produce it: that he now resided in the territory of Florida. It was also proved, that search and enquiry had been made for the deed, of other persons, who it was supposed might have possession of it, but without effect. We think this was sufficient. The plaintiff could have no motive for withholding it, as he offered to prove its contents by a registered copy, thereby repelling the presumption, that the original was withheld, for any improper purpose.

In addition to this, it is important to consider, that the plaintiff never had possession of the deed, and that Devin- and his wife, who had once sold the negro in question, by virtue of a claim asserted under the deed, had after-wards, as executors of the will of N. Beal, assigned the same negro to the defendant. It is therefore not to be wondered at, that the deed is not produced on the demand of the plaintiff. It has been frequently held, that if an original paper is in the possession of a third person, beyond the jurisdiction of the court, and reasonable diligence has been used to procure it, without effect, secondary evidence of its contents may be resorted to— (Minor vs. Tillotson, 7 Peters’ R. 99; United States vs. Rayburn, 6 Peters' R. 352; Baily vs. Johnson, 9 Cowen’s R. 115; Scott vs. Rivers, 1 Stew. & Por. 19; 13 Johns. Rep. 58. The case of Bradford vs. Bradford, at tiie last June term of this court, establishes the same principle.

It results, from what has been said, that the court erred in not permitting secondary evidence to be given of the contents of the deed.-

The division which was made of the negroes, as evidenced by the instrument signed by Smoot and othsrs, is resisted on two grounds. First — That at the time of the division, the negroes (among whom was the one in controversy,) were not in the possession of the executrix, but held adversely, by one through whom the plaintiff in error claims; and that therefore being the transfer of a chose in action, it docs not vest- the legal title in the defendant

The assent of an executor to a legacy, vests in the legatee the legal title; which assent has relation to the will, the source of the legatee’s title; or, in technical’language, he is said to be in by virtue of the wili. This appears conclusively", from what is said in the case of Foster and Miles, cited in Saunders’ case, (5 Coke’s Rep.) “If lessee for years devise his term to another, and makes his executor, and dies, the executors do waste, and afterwards assent to the devise, in that case, although between the executors and the devisee, it hath relation, and the de-visee is in by the devisor, yet an action of waste shall be maintainable against the executors.”

The division which was made of the slaves, was not only the execution of a power created by the will, but is also evidence of the assent of the executor to-the legacy, thereby vesting the legal title' in the defendant in error.

We have been referred to the cose of Loyd vs. Goodwyn, decided at the present, term, (See page 237.) as determining this principle. The doctrine of that case, is, that the sale of a chote in, action, where an adxerse claim was asserted to the property, does not convey the legal title to the purchaser. Its applicabil.ty to this case is not perceived. An executor, by assenting to a legacy, cannot in any sense be said t > sell or convey the subject of the legacy. His assent- is not the source of the title. To ascertain what that is, recourse must be had to the will. It would be of most mischievous tendency, to ad-m t that he could, by any act of his, under pretence-of assent, enlarge or abridge the title of t ie legatee.

Secondly — That it does not appear, that Smoot and Garrow, who, with the executrix, and her husband, Devin. made the division of the slaves, had.any authority to act: this objection is well founded. By the will of N. Beal, the power to make the division is given to the executrix, and Samuel Henry and Thomas J. Strong; and, in the event of the death of either, power is given to the survivor, to appoint others in their place. It is true, that the instrument by which the division is made, recites that Strong and Henry are dead, and that Smoot and Garrow have been appointed by the survivor in their place and stead. But we do not think the recital was proof of the fact against one who did not claim under it. The proof of the fact, must be made by evidence ab-unde.

Let the judgment be reversed, and the cause remanded.


source: Caselaw Access Project

author: ORMOND, J.

license: Public Domain

text:
    HANRICK vs. THE FARMERS' BANK OF CHATTAHOOCHIE.
    1. Inland bills of exchange, in this State, are regulated and governed by the same laws, usages and customs, which regulate and govern foreign bills of exchange — except, in the amount of damages.

      2. Damages, other than interest, are never given by the law-merchant, against an acceptor of a bill — as acceptor merely.
    [3. In England, the damages are estimated at' the difference of exchange, and the expences of forwarding.]
    4. The clerk of the court has no power to ascertain the damages, but on a writing ascertaining the plaintiff’s demand.
    5. Where the common money counts are added to a count on a bill of exchange — the clerlr may compute the damages without entering a nolle prosequi to the common counts.
    [6. The decision (Minor, 18,) founded on the English decisions,, overruled.] .
    Error to the Circuit court of Montgomery.
    Assumpsit on note, tried by A. Martin, X
    This action was founded on a bill of exchange, dated March twelfth, eighteen hundred and thirty-seven, drawn by Whitman & Hubbard on, and accepted by defendant below, for ten thousand dollars, payable sixty days after date, to the order of Thomas W. Brame — made negotiable and payable at the Bank of Moble — and endorsed by Thomas W. Brame, William S. Brame, and Walsh & Fitzpatrick — and protested for non-payment. The general issue was plead by defendant below, but withdrawn, and judgment rendered for plaintiffs.

      Campbell, for plaintiff in error.

      Hilliard, contra.

   ORMOND, J.

— This was an action of assumpsit, brought by the defendant in error, as the endorsee of a bill of exchange, against the plaintiff in error, as the acceptor of the said bill.

The declaration contains a special count on the bill, and the common money counts, for money had and received, and money paid, laid out and expended. The record further shows this entry of the judgment:

“ This day came the parties, by their attornies, and the defendant withdrawing his plea, says nothing in bar or preclusion of the plaintiff’s action. It is therefore considered by the court, that the plaintiff recover of the defendant, the sum of,” <^c.

From this judgment, the defendant below has prosecuted a writ of error to this court, and now assigns for error—

1. That the declaration contains the common counts, and judgment was rendered without the intervention of a jury;

2. That the judgment is rendered for more money than is specified in the count on the bill.

The last assignment of error will be first considered.

The bill of exchange sued on, was for ten thousand dollars, and the judgment rendered was for eleven thousand, six hundred and fifty-three dollars; it is therefore manifest, that the clerk, in computing the damages, has assessed, besides the interest, ten per cent on the amount of the bill, as damages for non-payment; and the ques-tlon is therefore presented, .whether the acceptor of an inland bill of exchange, that is, one drawn within, and payable within the Slate, is liable to pay ten per cent damages, on protest for non-payment.

To understand the full bearing of this important question. it will be necessary to take a survey of all our statutes on the subject, as it is only by considering them as a whole, that a satisfactory result can be attained.

The act was passed in eighteen hundred and seven, and is entitled an ad to render promissory notes and cotton receipts negotiable, and lor oilier purposes.”

The first section makes promissory notes negotiable by assignment, as inland bills of exchange, and is, in substance, the same as the well known English act of Parliament, of the third and fourth of Anne, which was repealed In eighteen hundred and twelve.

The second and third sections, provide for the issuance of cotton receipts by the owners of gins, and make them assignable and negotiable, as promissory notes.

“Sec. 4. That when any person or persons shall, by order in writing, signed by his or her proper hand, direct the payment of any sum or sums of money, in the hand or possession of any other persons whatsoever, the money therein specified, shall, by virtue thereof, be due and payable to such person or persons to whom the same is drawn_ payable, and may be put in suit - against the person or persons who may draw the same, or against the person or persons on whom the same may be drawn (after acceptance thereof.) by him or them to whom the same shall be made payable, and recover damages. Provided, nevertheless, that no person or persons whatsoever, shall prosecute any suit against any person or persons, who shall give such order for the money herein mentioned, before the same shall have been presented for acceptance, and notice given of the non-acceptance thereof to the drawer ; or before the same shall have first been protested or non-accepted, and notice given thereof to the drawer, before such suit shall be brought; and if any suit shall be brought on any such order, before notice and refusal to pay as aforesaid, the plaintiff or plaintiffs shall be non-suited, and pay costs.

“Sec. 5. That all bills of exchange, hereafter to be drawn upon any person resident within the United States, and out of this Territory, which shall' be returned protested, the damages of such’protested bills, shall be fifteen per cent, on the sum drawn for; and all bills in like manner drawn upon persons resident out of the jurisdiction of the United States', being protested, the damages shall be twenty per cent, on the sum mentioned in the said bills respectively, and all charges incidental thereto, with.lawful interest as aforesaid, until the same be paid.

“ Sec. G. Every bill of exchange, of the sum of twenty dollars and upwards, hereafter drawn in, or dated at and from any place in this Territory, upon any person or persons within the said Territory, and payable after a certain number of days, weeks or months after date or sight thereof, shall, in case of non-acceptance by the drawee, when presented for acceptance; or if accepted, iia case of non-payment by the drawee, when due and presented for payment, be protested by a notary public in like manner as foreign bills of exchange, and the damages ou such bill, shall be ten per cent on4ihe sum drawn for, and shall, in every other respect, be regulated and governed by the same laws, customs and usages, which regulate and govern foreign bills of exchange” —(See Toulmin’s Dig. 67.)

In determining the effect to be given to this statute, we must consider it as a whole, and give it such a construction, as best comports with the intention of its framers, ^without laying undue stress on particular portions of it.

The counsel for the defendant in error, insists, that by the fourth section of the law above cited, the legislature intended to .give damages of ten per cent against the acceptor, upon the non-payment of the bill; and it is probable that the section, standing alone, would justify such an inference. But, upon examination, it is quite apparent that the legislature did not intend, by that section, to do any thing more than to provide, that when an order was drawn, that the sum drawn for should be due and payable to the payee, and that he might fnaintain an action against the drawer or acceptor and recover damages, or in other words, (what, to be sure, was quite unnecessary,) to define what should constitute a hill of exchange. Having thus laid the foundation of the system, the legislature proceed, in the two succeeding sections, to determine in what manner the rights and liabilities of the different parties to the bill are to he ascertained— the amount of damages to be paid on the dishonor of a bill — and lastly, that inland bills shall in all respects, except the amount of the damages, “ be regulated and governed by the same laws, usages and customs, which regulate and govern foreign bills of exchange.”

Damages, other than interest, which ¡nay accrue, is never, by the law-merchant, given against an acceptor of a bill, as such merely; though cases may exist, in which he might he liable to the drawer, in damages on some special agreement, to accept the bill. But, as a general proposition, and for all the purposes of this case, it may be asserted, that he is not liable. 1-Iis undertaking is absolute, to pay the money to the holder of the bill. Damages are given to the holder, to compensate for the loss and disappointment in not receiving his money at the place appointed, and arises out of the «onlract of drawing or endorsing the bill. In England, the damages are estimated at the difference of exchange and expenses of re-drawing, so.as to enable the holder to place his funds where the bill should have been paid. But, be the reason t f the law what it may, in allowing damages on the dishonor of a bill, it is certain, that, testing the case by the rule prescribed by the sixth section, (the lex mercaloria,) no damages can be claimed against an acceptor; and it would be contrary to every sound rule of construction, to make the positive rule pointed out in the sixth section,yield to the mere implication which might be drawn from the fourth section, uncontrolled or unexplained by the language of the sixth. Wc are, therefore, of opinion, that damages cannot be recovered from the acceptor of an inland bill of exchange.

The remaining objection is, that where there is a special count on a promissory note or bill of exchange, (as is the case here,) and also the common money counts,— that it is error for the clerk to compute the damages, without a nolle prosequi being first entered on the common counts.

In England, the practice is, under a rule of court, to require the clerk to assess the damages, a nolle prosequi being entered on the common counts. But the decision of this question does not depend on the English authorities, but turns exclusively on our statute. In all actions founded on any writing ascertaining the plaintiff’s demand, or sum sued for, if judgment by default, nihil dicit, or by non sum inf or mains, or on demurrer, be entered thereon, the court, where the same action shall be pending, shall and may lawfully enter judgment for the debt, demand and interest thereon, to be calculated by the clerk of such court, up to the time of rendering damages, without the intervention of a jury to enquire of the damages’’—(Aik. Dig. 269.)

It will be seen by this act, that the clerk has no power to ascertain the damages, but on a writing ascertaining the plaintiff’s demand, such as is described in the first count. The plaintiff in error, therefore, cannot, by possibility, be injured by the failure to enter a nolle prosequi on the common counts; as the only effect of retaining them, might be to debar the plaintiff below from recovering any claim, which might have been recovered under the common counts. The former decision of this court, to be found in Minor’s Rep. 18, was founded on the English decisions, and is hereby overruled. The case of Knickerbocker vs. Colden, (2 Cowen, 31,) and of Beard vs. Van Wickle, (3 Cowen, 335,) were ma'de under a statute of New York, different from ours, and therefore do not militate against the views here taken.

For the error of the court below, in rendering judgment for too much, the judgment is reversed, and this court, proceeding to amend Hie same, directs tl at judgment be now entered for U.e amount oí said bill of exchange, with interest thercon*to the time of the rendition of the judgment of the court below, and that the plaintiff in error pay the costs of this court.


text:
    EVANS et al. vs. BOLLING.
    1. Whore the loss of an iuslrurnent proposed to he offered in evidence is satisfactorily proved, the law permits secondary evidence to be given of its contents.
    2. The most unexceptionable mode of proving the contents of a lost instrument, is by a sworn copy: and where the copy is true, it is proof of the same grade, and entitled to the tame credence as the original.
    3. Where the subscribing witness handed abonl to (be clerk, who copied it — the copy made by the clerk, is satisfactory evidence of the contents of the original.
    4. But the subscribing witness -cannot be allowed to refresh his memory, as to the contents of tire lost bond, by reference to the copy made by the clerk.
    5. A. witness, it seems, may be allowed to refresh his memory, by looking at a memorandum he made at the time the occurrence took place, to which he is called to testify; but must swear, not from the fact of his having written it down, but to the fact itself.
    6. Where one complains of an error in an inferior tribunal — to be entitled to redress — he must shew he is prejudiced by it.

      7. But where a defendant, in order to make out a defence, proposes to show that the consideration of a bond sued on, is a bond which is lost, and in his effort to show the contents of snch lost bond, is arrested by au improper decision of the court,— these facts sufiicieutly exhibit the pcrtinency^of the proolj to authorise the action of this court.
    Error to Sumter County court.
    Debt on bond.-
    This was an action of debt, on a writing under seal,’ brought by the defendant in this court, against the plaintiffs. The pleas of ■ail debet, failure of consideration, and want of consideration, were filed, in. short, by consent. There was a verdict and judgment for the plaintiff below.
    On the trial below, a bill of exceptions was sealed, from which it appeared — That the defendants below offered to prove, that the bond sued on was executed in consideration of a bond executed by the plaintiff below, to Evans, for the sale of land and other property. The subscribing witness then proved that the bond had been executed by John tí. Bolling to Frederick P. Evans.— Evans then swore that the bond was lost, and that diligent search had been made for the same, and that it could not be found — that no counterpart of the bond had been taken. The subscribing witness to the bond then proved, that he received it from the defendants without alteration, and handed it to the clerk of the County court, to be copied by him. The defendants then offered to show by the clerk, that he copied said bond as he received it from the subscribing witness, which copy was offered in evidence, not as a record, but to prove the contents of the lost bond. The subscribing witness never saw the bond after it was delivered to the clerk, and never compared the bond with the copy made by the clerk, and could not testify as to its contents.

      The court held, that where there is a'subscribing witness to a lost instrument, no other witness can be introduced to prove a copy of the bond, unless the subscribing witness recollects the contents of the instrument, and has compared the copy with the original. That to allow the clerk to testify that the copy was a true copy of the bond, as delivered by the subscribing witness, would be to admit hear-say testimony, although the clerk swore he had copied the bond as it came to him from the subscribing witness. The defendant then offered to introduce the subscribing witness, and to allow him to refresh his memory from the copy; but the witness being asked if he had compared the copy with the original, and having answered in the negative, the court refused to allow the subscribing witness to refresh his recollection from the copy, and to testify, on the ground, that he had not compared it with the original bond.
    These opinions of the court were excepted to, and assigned for error, in this court.
   ORMOND, J.

— The loss of an instrument of writing, proposed to be offered in evidence, being satisfactorily established, (as appears to have been done in this case,) the law permits secondary evidence to be given of its contents. The evidence thus substituted from necessity, for the original itself, must always be of a grade inferior to the original; and will fluctuate, as it is more or less certain, between the highest degree of probability, and mere doubt or suspicion. But' certainly the proof of the contents of a lost instrument, by a sworn copy, must be the most unexceptionable mode of proving the contents of a lost instrument. It is indeed proof of the same grade, and would be entitled -to the same credence as the original, if it were certain that the copy was true. In this case, the court seem to have considered, that the copy could not be read in evidence, because the clerk who made it, could not prove the execution of the original bond. But that circumstance merely imposed on the plaintiffs in error, the necessity of showing that the bond thus copied was the original; which was done by the evidence of the subscribing witness. If these witnesses are believed, the contents of the lost bond are satisfactorily shewn; and the court erred in rejecting the testimony.

But the court did not err, in refusing to permit the witness to refresh his memory, as to-the contents of the lost bond, by reference to the copy made by the clerk.

The question commonly arises, in cases where a witness has made a memorandum of some.transaction, or event about which he is called to testify : the memorandum is not evidence, but he may look at it to refresh his memory; and must then swear, not from the fact of his having written it down at the time, — but to the facts themselves. Now, in this case, the genuineness of the copy was not acknowledged ; it could not, therefore, be referred to for any purpose as evidence.

It is contended by the counsel for the defendant in error, that the materiality of the iost bond does not sufficiently appear, to authorise this court to reverse for the rejection of the testimony. It is true, that when a party cotnplains-in this court of an error, he must show that he is prejudiced by it; and we think that sufficiently appears on this record. The defence set up was, that there was no v onsideration for toe bond sued on. To establish this, they offered to prove that the consideration of that bond, was another bond, made by the plaintiff below to the defendants, for the sale of land and other property. The first step in the defence, was to establish the execution and contents of the bond; and in attempting this, the defence was arrested by the court. It would have been idle, and indeed quite irregular, to have offered further proof, the preliminary proof not being allowed to be made, upon which the other testimony was to depend.

The judgment of the court below is reversed, and the cause remanded, for further proceedings.


author: GOLD T H WAITE, J.

text:
    MARSHALL & M'LEOD vs. WHITE.
    1. The only object of an enquiry of damages after a default, is the ascertainment of the amount to which* the plaintiff is entitled — as every other matter is admitted by the defendant to be, as alleged in the declaration.
    2. An action of trover cannot be commenced by attachment;" which, can only issue on a money demand.
    3. Where an attachment issues on affidavit of a money demand, a declaration subsequently filed in trover, against a defendant who does not appear, cannot be allowed.
    4. But if defendant appear, and plead to the merits — he will be too late to review the irregularity, after judgment.
    Error to Autauga Circuit court.
    Trover, tried by Harris, J.
    This action was commenced by proce*ss of attachment, issued by a justice of the peace, and returnable to the Circuit court of Autauga county.
    At the return term, the plaintiff declared in trover'for a slave, and the defendant not appearing, a judgment by default was rendered against him; but because the damages were unknown, a writ of enquiry was directed to be executed at the ensuing term. On the execution of the inquisition, damages, to the amount of-nine hundred and seventy-two dollars, were assessed, for which sum judgment was rendered.
    While the enquiry of damages was before the jury, 'the plaintiff proved, that the negro was in his possession before suit, and at the time of the alleged taking, and also proved the value of the slave: but offered no further proof. The defendants requested thecourt to instruct the jury, that as the plaintiff had failed to prove, that the slave had ever been in the possession, or under the con-tiol of the defendants; and had proved no demand, he was entitled to recover only nominal damages: this was refused; and the jury were charged, that the plaintiff was entitled to recover the value of the slave, (according to the proof,) and interest. To this the defendants excepted; and having removed the suit to this court, here assigned for error—
    1. That the court erred in giving the charge stated;
    2. In refusing to give the one requested ;
    3- That it erred in rendering the judgment;
    4. That the attachment was not issued, to recover for any demand authorised by law.
    Edwards, for plaintiff in error.
   GOLD T H WAITE, J.

— If we are to consider the enqui-ry of damages as a proceeding after a default, its only object is the ascertainment of the amount to which the plaintiff is entitled; as every other matter is admitted, by the default, to be, as alleged in the declaration. In this view, the instructions given by the presiding judge were entirely free from error; and those requested by the defendant were properly refused. The judgment, however, cannot he supported, because a suit in trover may not be originated by attachment.

There is nothing in the statutes, respecting this process, which authorises a belief, that the general assembly contemplated its issuance for any other than a money demand. Such seems to have been the idea conceived by' the plaintiff, for he states in his affidavit, that the defendants are justly indebted to him in the sum of nine hundred dollars, after deducting all off-sets, &c. The proceeding subsequently, by a declaration in trover, is an error which vitiates the proceedings.

If tlie defendant had appeared, and pleaded to the me--. rits, he would now be too late, to review this irregularity in this, or any other manner; but as the judgment was by default, and the defendant has by no act waived his rights, he must be permitted to avail himself of this error.

In Cain vs. Mather, (3 Porter’s R. 224,) it was held, that on demurrer, the court ought not to look behind the declaration, to ascertain if it be sustained by the process. In that, as in this case, the suit was commenced by an original attachment; and, in both cases, the declarations are for lorls sounding in damages merely. There, however, the defendant appeared, — and instead of pleading in abatement, or-seeking to set aside the declaration for irregularity, — demurred to the cause of action as stated.

We think it might produce evil consequences of some magnitude, To decide, that a party suing out process of attachment to secure a money demand, is authorised to declare in any action which he deems expedient. Such a course would at all times leave an absent defendant entirely at the mercy of the plaintiff, as no other enquiry than the value of property, named in the declaration would be before the jury, and as the default in all such cases admits the entire cause of action as stated.

Let the judgment be reversed back to the attachment, and the case remanded.


author: GOLDTHWAITE, J.

text:
    MERRILL vs. JONES.
    1. An appeal or writ of error does not lie from an interlocutory order of the County court.
    2.- As a general rule, consent of parties cannot give jurisdiction to a court, which otherwise does not possess it.
    3. A judgment of the Circuit court, on a writ of error, to revise an interlocutory order of the County court, the ugh obtained with the consent of parties, will be set aside.
    4. And where the proceedings in the Circuit court, might operate as a bar to a review of the same matters, when property presented, after final judgment below — the proceedings will be set aside, and the writ of error dismissed.
    Error to the Circuit court of Covington county.
    Writ of error to the Orphan’s court, tried by Cren-shaw, J.
    In this case, there were two assignments of error— one iu the Circuit court, and another in this court. One of the distributees of the estate of an intestate, alleged in the County court of said county, that the administrator had not made a true and complete inventory of the personal property of the intestate, but had omitted to return sundry negroes and other property, and that the administrator had by force, carried away from the premises of the deceased, the said negroes, without-the consent of any one interested, &c. — -to which the administrator plead, that the negroes aforesaid were not the property of the estate. A jury were empanneled to try the issue, who found the property to belong to the estate, and liable to distribution. The court, therefore, ordered the administrator to proceed, and make distribution of the property to the distributees.
    From this judgment, the administrator appealed to the Circuit court, and assigned the following errors:
    1. The judgment contains error, because, it appeared from the record, that there were other parties plaintiffs, not joined in the action;
    2. It did not appear, by the record, that the defendant had the notice required by law, to appear and answer;
    3. Because the finding of the jury was general, and did not find any particular property, subject to distribution :
    4. Because the judgment was equally uncertain;
    5. It did not appear at whose instance a jury was empanneled;
    6. There was no issue joined by the parties, for the action of a jury;
    7. The record was erroneous, in form and substance.
    The Circuit court considered, that there was no error in the record — and that the judgment of the Orphan’s court should be affirmed; from which judgment, plaintiff in error took a writ of error to this court, and here assigned:
    1. The Circuit court erred, in affirming the judgment of the County court.

      2. The Circuit court had no jurisdiction, and should have dismissed the writ of error — there being no final judgment rendered by the County court.

      Cook, for plaintiff in error.
   GOLDTHWAITE, J.

— The second assignment of errors, we think, is decisive of this case. It questions the jurisdiction of the Circuit court, and denies its authority to reverse or affirm the particular decree rendered by the County court on the matter then before it, because it is not a final judgment.

The statute provides, that from any judgment or order final, whether in vacation or term time, an appeal or writ of error shall lie to the Circuit or Supreme court, in the same manner as upon judgments of the Circuit courts —(Aik. Dig. 246.) it is, therefore, clear, if the judgment of the County court on the matter before it was interlocutory, and not final, that a writ of error or appeal, can not be rightfully presented; but it is supposed, that as the present plaintiff is the same who brought the cause before the Circuit court by writ of error, he ought not to be permitted, now, to question the jurisdiction of that forum, to which he has resorted for relief, when its decision is adverse to his wishes.' The general rule is very clear, that consent of parties cannot give jurisdiction to a court which otherwise does not possess it, and the Supreme court of the United States, has in several cases considered it proper to dismiss cases from the court, which were brought there by writ of error, at the instance of the plaintiff in the court below, who must, of course, liavo been active in selecting the jurisdiction of the court. Thus, in Winchester vs. Jackson, (3 Cranch, 514,) the plaintiffs in error were also plaintiffs below. In Sullivan et al. vs. The Fulton Steamboat Company, (6 Wheat. 450,) the bill was filed by the complainant, without sufficient allegations to give jurisdiction, and on the appeal prosecuted by him, the decree of the court below, dismissing the bill generally, was affirmed, for the reason that the Circuit court had no jurisdiction; but the decree was modified, so as to be vñlhoul 'prejudice to the complainant on Che menta.

In the case of Colden vs. Knickerbacker, (2 Cowen’s R. 31,) the Court of Errors and Appeals of New York dismissed a writ of error, and refused either to.affirm or reverse, for a defect of jurisdiction; and the decisions of this court, have been uniform on this subject, in all cases where the writ of error is returnable to it—(Johnson’s adm’r vs. Henry, Minor, 13; Glover vs. Robinson, ibid. 101; McLaren vs. Allen, ibid. 117: Harris vs. Kreps, ibid. 184.)

In a case like the present, an affirmance in the Circuit court, of a case of which it has no jurisdiction, might operate as a bar to a review of the same matters when properly presented, after a final judgment, and when, in consequence of such a judgmént, the court would have obtained the jurisdiction, either by appeal or writ of error ; therefore, a substantial reason exists, why such a judgment of affirmance ought to be set aside, and the proper one, dismissing the writ of error, should be given.

The judgment of the County court merely directs, that the administrator of the estate of Benjamin Merrill, deceased, proceed to make distribution,' according to the statute, of the slaves ascertained to belong to the estate. Whatever may be the merits or demerits of these proceedings, — so far as shewn, it is certain, that 'this decree was not a final settlement of the estate, as no distribution is actually made of it, among the distributees, noi-ls there any decree of a final settlement, ascertaining what is due to each distributee, or to the defendant in error, as the sole distributee.

The Circuit court, therefore, should not have entertained jurisdiction of the case, but should have dismissed the writ of error. >

In proceeding to determine the cause on the errors assigned, an error was committed, for which the judgment of the Circuit court must he reversed, and the cause remanded, with instructions to dismiss the writ of error, unless the record shall be so perfected on certiorari or otherwise, as to shew a final judgment or decree in the County court.


author: COLLIER, C. J.

text:
    HOSEY, adm'r, vs. BRASHER.
    1. Letters of administration are but evidence of authority,, aud an administrator may act without them, if the records of the court shew his appointment.
    2. Where an order of the Orphan’s court is made, requiring a de fendant to appear in court, enter into bond, and take the necessary oaths as administrator; and in an order of publication, eighteen months afterwards, he is recognised as administrator: it will be intended that he complied with the previous requisitions, and took upon himself the administration.
    3. It appears, that the law docs not require either the bond or oath of an administrator to be recorded.
    [4. In England, an examined copy of the act-book; stating that letters of administration have been granted to a defendant, is proof that he is administrator — although no notice was given to produce the letters of administration.]
    Error to Talladega Circuit court.
    Assumpsit against an administrator, tried by Judge Martin.

    The plaintiff in error washed in the Circuit court of Talladega, as the administrator of James Brasher, senior, deceased, and pleaded (among other pleas) ne tinques administrator. To disprove this plea, the defendants gave in evidence, a regularly certified transcript of the record of the Orphan’s court - of Talladega; from which it appeared, that the plaintiff applied for letters of administration on the estate of James Brasher, senior, deceased: that notices were issued according to law to the next of kin, to show cause why the application should not be granted — which notices having been served, and no cause shown, that court, on the first of September, eighteen hundred,and thirty-four, ordered that letters of administration be granted to the plaintiff. On the same day, the court made an order of appraisement and sale, and that the plaintiff give bond, &c.
    In April, eighteen hundred and thirty-six, the judge of the court made an order, requiring publication to be made in a newspaper for forty days, that the plaintiff would on the first Monday in June thereafter, present his accounts and vouchers, for allowance and final settlement, & c.
    This is an abstract of all the evidence introduced, to show that the plaintiff was administrator, as charged by the defendants. The judge of the Circuit court determined that it was admissible; and on motion of the plaintiff's counsel for that purpose, refused to instruct the jury, that it was not sufficient proof of his being administrator.
    Chilton, for plaintiff' in error.,

      Phelan, contra.
    Phelan, for defendant,
    thought the evidence was proper and competent, and proved that plaintiff in error was administrator, without notice to produce his letters- — (2 Starkie’s Ev. 553, and the authorities there cited. 1 Saunders’ P. & E. 504; 8 East, 187; Butler’s N. P. 246; 2 M. & S. 567.) Hence the refusal of the court to charge as requested, or to reject the evidence, was proper. The other matters appended to the order, granting letters, could not vitiate the order.
   COLLIER, C. J.

— The admissibility of the evidence, and the charge of the court, presents the only question for our decision.

Our statutes certainly contemplate the issuance of letters of administration, to the person appointed administrator, yet, as the letters are but evidence of his authority, he might act without them, if the records of the court show his appointment, &c.

Whether a person appointed administrator, may be allowed to exercise his office, until he has been qualified by taking the necessary oaths, and entering into bond with sureties, is a question which does not necessarily arise in the present case. The transcript contains an order made the first of September, eighteen hundred and thirty-four, requiring the plaintiff to appear in court, and enter into bond and take the necessary oaths. And as he is recognised in the order of publication, of April, eighteen hundred and thirty-six, as administrator, we should intend that he complied with the previous requisitions of the court; the more especially, as the law does not require either the bond or oaths to be recorded.

It has been held, in England, that an examined copy of the act-book, stating that loiters of administration were granted to the defendant, arc proof that he is administrator, although no notice was given to produce the letters of administration — (See 1 Starkie’s Evi. 248; 1 Saunders on Pl. & Evi. 504; Elden vs. Keddell, 8 East’s R. 187; Davis vs. Williams, 13 East’s R. 231; Gorton vs. Dyson, 1 B. & B. Rep. 219.) By the admission of the evidence in the case at bar, no injury could possibly result to the plaintiff; — if he had declined accepting or acting. under the grant of administration, there could be no difficulty in showing it. In the absence of any such countervailing proof, the court should not have instructed the jury that the evidence was insufficient; and consequently,, the judgment must be affirmed.


text:
    STEELMAN vs. OWEN.
    1. On an appeal from the judgment of a justice of the peace, where the sum in controversy exceeds twenty dollars: — a declaration, or statement of the cause of action, is necessary.
    2. And, in such a case, when the sum is not ascertained, a jury must also be impanneled to enquire of the damages.
    Error to the Circuit court of Pike.
    Appeal from a justice of the peace.
    - This action was commenced before a justice of the peace, by the defendant in this court, against the plaintiff. There did not appear to have been any judgment rendered by the justice, further than might be inferred from the appeal bond, which recited, that judgment was rendered for plaintiff below.
    An appeal being taken to the Circuit court of Pike county, — at the Fall term, eighteen hundred and thirty-five, of that court, an order was made, referring the matters in dispute, to the arbitrament of S. M. Evans, whose award was to be made the judgment of the court.
    •At the next term of said court, a judgment, by default, was entered against the defendant below. From this judgment, a writ of error was taken to this court, — and the plaintiff assigns for error:
    1. That no judgment should have been rendered against the plaintiff in error, without an issue and verdict ;
    2. That the court had no jurisdiction.
    Campbell, for plaintiff in error.
   ORMOND, J.

— On an appeal from the judgment of a justice of the peace, when the sum in controversy, (as in this case,) is more than twenty dollars, a declaration or statement of the cause of action, is necessary—(See Roden and others vs. Roland, 1 Stewart’s Rep. 266, and cases there cited.) This has not been done in. this case'; and for that error, as well as for rendering judgment by default final, when the sum was not ascertained, without impanneling a jury to enquire of the damages, — the judgment must be reversed, and the cause remanded.


text:
    BETTIS, adm'r, vs. TAYLOR.
    1. A statute imposing a penalty, must be strictly construed and closely followed,-and the form of procedure, and the measure or description of proof prescribed, must be regarded.
    2. The act which confers the right on a jury, to impose damages for vexatiously, or for delay, claiming property levied on under execution, (Aik. Dig. 168,) no where requires that the jury, in giving damages,, shall express, by their verdict, the causes which influenced them. c
    3. It seems, that a party pursuing a summary remedy given by statute, must conform strictly to the terms of the act, and the conformity must bo shown by the record.
    4. Also, that in such cases, when submitted to a jury, on an issue, essential facts will either be intended to exist, or will be considered waived: — if the record shew such a compliance with the statute, as is necessary to give the court jurisdiction.
    5. Where au administiator detains possession of personal property, to which another has a paramount title, the owner need not proceed against him in his fiduciary character, but may charge him personally: — and the administrator, where the question is litigated in good faith, is entitled to be reimbursed his damages, from the assets of the intestate.
    6. And the rule, that he who detains property from the rightful owner, is liable, — is so strict, that, where there are several executors, and one only has possession, — he alone can be sued.

      7. And a defendant in detinue, is not allowed to give in evidence, as he might do in trover, that the property was delivered to him as a pie Ige.
    8. Nor will it avail him, that the property was destroyed, or died after suit brought.
    9. Thus, an administrator, who, as such, interposes a claim to property levied on'by execution, will be-liabte, individually, for the forthcoming- of the property, even if destroyed, or if it dies, after the claim is interposed, and the property goes into his possession.
    10. It seams, that one, interposing such claim, as administrator, while incurring, by the stipulations of his own bond, personal responsibility, — might make good the issue on his part, by showing title in his intestate.
    11. Where an administrator, in such case, is forced to expend money, to protect the estate of his intestate — the court that settles his accounts, can do him justice.
    12. Where one, voluntarily, with the leave óf court, and the consent of a plaintiff in execution, substitutes himself in the place of another, as a claimant in a proceeding to try the right of property — he cannot afterwards be allowed to object, that all this was irregular.
    13. In order to comply with the law, authorising executions to be forwarded toother counties, (Aik. Dig. 170,) the sheriff must deposit a copy of the execution in the clerk’s office, of the county to which it is sent, and must endorse on it, a copy of the return made by him to the original — and unless this is done, the copy would not, in itself, be evidence on a trial of the right of properly, in the goods levied on.
    14. But the act is merely affirmative, and does not exclude every other mode of proving a copy of the execution. An examined, or sworn copy, is admissible.
    15. Aliter, where the issue is nul iiel record, in which case, the record must be produced, sub pede sigilli, or otherwise made authentic, in itself.
    16. In a trial of the right of property, the plaintiff in execution need not produce the judgment, on which the execution issued —nor can the claimant be allowed to litigate its regularity or justice; or show that the defendant in execution was dead when it issued.
    Error to the Circuit court of Mobile.
    Trial of the right of property, before :Pickens, J.

      On the twenty-sixth day of May, A. D. eighteen hundred and thirty-two, the clerk of the Circuit court of Monroe, issued a pluries writ of fieri facias, directed to the sheriff of Mobile county, requiring him to make of the goods and chattels, lands and tenements of William H. Howell, an amount in damages and costs, said to have been adjudged to the defendant in error by the Circuit court of Monroe, which fieri facias was levied on the twenty-fifth of August, eighteen hundred and thirty-two, on certain negro slaves, as the property of the defendant therein; and on the twenty-ninth of September thereafter, they were claimed by James Wilkins, to be the property of Caleb Howell, deceased. On the last mentioned day, James Wilkins entered into bond with surety ; conditioned that the claimaint, as administrator of the estate of Caleb Howell, should have the slaves claimed by him forthcoming, to satisfy the execution, in the event of their liability to the same. And further, to “ pay such costs and damages as may be recovered against him, for putting in such claim for delay.”
    In the record, and immediately after the foregoing was found, a bond, executed by William J. Bettis, and two other persons, as his sureties, on the twenty-seventh of November, A. D. eighteen hundred and thirty-four, reciting the levy in eighteen-hundred and thirty-two, on the negroes claimed by James Wilkins, and conditioned that William J. Bettis, administrator of Caleb Howell, deceased. shall have the slaves forthcoming, to satisfy the execution of the defendant in error, in the event of -its being determined, that they are liable to its satisfaction, “ and also such costs and damages as may be recovered against him,” (claimant.)

      Immediately following the above, was another bond, executed by William J. Bettis, and three other persons, as his sureties, on the sixth day of November,.A..D. eighteen hundred and thirty-five, reciting, as before, .the levy in eighteen hundred and thirty-two, on the negroes claimed by James Wilkins, and conditioned that William 'J. Bettis, administrator, of Caleb Howell, deceased; should have the slaves forthcoming, to- satisfy the execution of the defendant in error, in the event of its being determined that they were liable to its satisfaction, “ and shall pay such costs and damages, as may be recovered against him (claimant) as aforesaid, for'putting in tuch claim for delay.”
    An issue was formed as follows: “ The State of Alabama, Mobile county, Circuit court, Fall term,-eighteen hundred and thirty-four: Henry W. Taylor, plaintiff in execution, vs. Janies Wilkins, claimant. The plaintiff in execution avers, that the slaves Delsey, and her child, Lydia, and Stephen, are the property of William H. Howell, the defendant in execution, and are subject to the execution of the said plaintiff.” Signed by plaintiff’s attorneys.
    “And the said William J.. Bettis, administrator of Caleb Howell, comes and saith that the said negroes were not subject to the satisfaction of said execution, and prays the same may be enquired of by the court,” &c. ■ Signed by attorneys for claimant.’
    At the term of the Circuit court of Mobile, on-the first Monday after the fourth Monday of October, A. D. eighteen hundred and thirty-five, the following order was-made: “in this case, came the parties, by their attorneys. and it appearing to the satisfaction of the court, that at a previous term of this court, to wit, at the Fall term, eighteen hundred and thirty-four, thereof, William J. Bettis was admitted as administrator of said estate of Caleb Howell, deceased, defendant, to defend said suit— which order of the court was failed to be entered. It is ordered by the court, tha't said order be entered now as of said term; and thereupon came the said lYilliam J. Bettis, and filed his bond, which being objected to by the plaintiff, is ordered by the court now here to be filed; and for sufficient reasons appearing to the court, from the affidavit of the claimant', it is ordered, that this cause be continued.”
    And the cause being continued until the first Monday after the fourth Monday in October, A. D. eighteen hundred and thirty-six, — at a term of the Circuit court of Mobile county, then holden, was submitted to a jury, upon the issue joined, who, by their verdict, found the slaves in question subject to the plaintiff1’s execution, and ascertained the value of each; and further found “ten per cent damages, on the amount of the execution, amounting to one hundred and seventy,-eight dollars, and eighteen cents.”
    The record then, after an entry of judgment, in the usual form, as it respected the slaves, proceeded : “ and the said plaintiff recover of the said defendant, the sum of one hundred and seventy-eight 18-100 dollars, the damages aforesaid, assessed by the jury aforesaid, and his costs, in this behalf expended,” &c.
    On the trial, the presiding judge, at the instance of the claimant, sealed a hill of exceptions ; from which it appeared, that the plaintiff in execution offered in evidence a paper, purporting to be a copy of the execution levied on the property in controversy, though it was not certified to be a copy, and was objected to by the claimant.
    The plaintiff in execution then introduced a witness, who stated that lie levied the original execution, and had the same in his hands, when this claim was interposed: immediately thereafter, he made out the copy now offered, and filed it in the office of the clerk of the Circuit court of Mobile, and returned the original to the office of the clerk of the court, from which it issued. The witness further stated, that at the time of the levy related by him, he was a deputy sheriff, but that the term of office of his principal, had since expired. This evidence was objected to by the claimant, bis objection overruled, and the copy read to the jury.
    The plaintiff then proposed to read to the jury the execution, without producing the judgment on which it purported to have issued. To this the claimant objected, but his objection was overruled, and the execution read accordingly.
    The plaintiff then read to the jury a transcript of the record of the suit on which the execution issued, which contained no judgment, but a mere memoranda, stating that there was a verdict for plaintiff for a sum certain, (expressing it,) followed by these words: “judgment for plaintiff (’---whereupon the claimant moved the court to instruct tiie jury, that “as it was shown by the record that there was no judgment rendered on the verdict in said cause, that they musí find for the claimant.’’ Which instruction was refused by tbe court, who expressed the opinion, that it was immaterial to the issue, whether there was a judgment or pot.
    The claimant, on his part, moved that the defendant in execution was dead, at the time the execution issued, and thereupon moved the court to instruct the jury, that for that cause, the same was void, and that the jury, if satisfied of the fact of his death, must find for the claimant ; which instruction the court also refused.
    The claimant offered to prove further, that the judgment had been satisfied by the defendant in-execution, but the court refused to admit such evidence, on the ground that it was not material to the issue, which merely litigated the fact, whether the property in controversy, as against the claimant, was liable to the debts of the defendant in execution.
    Whereupon the claimant excepted to the'opinion of the court, in the several points presented by the bill of exceptions; and, to revise the same, and other questions of law, arising upon the record, the plaintiff in error, as administrator of William J. Bettis, who has died .since the rendition of judgment by the Circuit court, prosecuted his writ of error to this court.
    The assignments of error were:
    1. The court erred in rendering judgment against William J. Bettis, de bonis jrrojmis, whereas he was but an administrator.
    2. The court erred in rendering judgment for damages, against the sa-id William J. Bettis, who was not responsible therefor.
    3. The court erred in proceeding to trial, when the cause had been discontinued, as .to the defendant,'Wilkins. .- . ' ,
    4 The court, erred in the several decisions made,- as shewn in'thebill of exceptions, in'i-eceivirig and rejecting evidence, in instructing‘the jury, and in refusing,.as requested by the claimant. ■
    5. That the court erred in' the rendition of the judgment shewn in the record.
    Steioari, for plaintiff in 'error.
    Campbell, contra.
   COLLIER, C. J.

— The assignment of errors lead us to consider—

First — The regularity, in point of law, of the verdict and judgment against William J. Bettis, as rendered upon the trial of the right of property. -: -

Second — Whethér William J. Bettis, was legally a party to the proceeding in the Circuit court.

Third — The correctness of the several decisions of the judge of the Circuit court, pending the trial before the jury. . . '

First — The plaintiff, in the first place, objects to the judgment of the Circuit court, because the jury find ten per cent damages on the amount of the execution,- in favor of the defendant in error, without declaring by their verdict, that the. claim of property was interposed “ for purposes of vexation or delay.” The section of the statute wliich confers the right to impose damages, in such a case, is as follows: “In all trials of the right of property, as aforesaid, when the jury may be of opinion that the claim was made to said property for purposes of vexation or delay, they shall have power to give such damages as the case may require, not exceeding fifteen per cent on the amount of the execution.”

It is a clear rule, that a statute imposing a penalty, must be strictly construed, and closely followed in its application. The court cannot lessen or increase the penalty, and if the form of procedure, — the measure or description of proof, are prescribed,- — they must be regarded, or the statute itself cannot be allowed to operate —(Broadwell vs. Conger, 1 Penning. R. 210; Fairbanks vs. Antrim, 2 N. Hamp. R. 105.) How, the act no where requires that the jury, in -giving damages, shall express, by their verdict, the causes which influenced them; but it declares the only causes that could authorise such verdict, and, guided by reason, we are bound to suppose, that they did not usurp a right, but honestly, entertained the opinion, that the claim to the property in controversy was made “ for purposes of vexation or delay.”

But it- is insisted for the plaintiff, that the case'of Logwood vs. the Huntsville Bank, (Ala. Rep. 23,) and the subsequent cases in this court recognising it, are authorities, to shew the judgment in the case at bar to be erroneous. The case mentioned, was a proceeding by notice and motion, under the charter creating the bank; and the court only .decide, that a party, pursuing a summary remedy given by statute, must conform strictly to the terms of the act, and the conformity must be shown by the record. That case, it may be remarked, was a judgment by default: had it been submitted to the jury on an issue, several facts, supposed to he essential, would either have been intended to exist, or else have been considered as waived, and the record then need only have shown such a compliance with the statute, as was necessary to give the court jurisdiction. The dissimilarity of the two cases is strikingly apparentin that cited, the record did not discover that the court had jurisdiction of the proceeding — in the case at bar, the fight of the court to hear and determine the case, was undeniable. Again : the one is a case strlcli juris, while the other is governed by move liberal rales.

We have shown that penal statutes are subject to a strict construction, yet the application of the rule will not sustain the objection. On trials at the Circuit, the judge informs the jury, that if, in their opinion, the claim of property was made for purposes of vexation or delay, they are authorised to give such damages as they may think proper, not exceeding fifteen per cent on the amount of the execution. When the jury return to the court their verdict, by which they assess damages, not exceeding the maximum authorised, they declare what, in their opinion, is the appropriate measure. More than this surely cannot be necessary, in order to legalise their action. •

In Rountree vs. Smith, (1 Stew. R. 157,) it was held in an action against a sheriff for the escape of a debtor, that the jury should expressly find, that such debtor or prisoner did escape with the consent, or through the ne-gligence of the sheriff, or that such prisoner might have been re-taken, and the sheriff and his officers neglected to make immediate pursuit. Tins case, however, bears no analogy to.the one at bar, for the statute, in totidam verbis, requires such to be the expressed finding of the jury.

It is further objected, that the judgment is irregular, in-being rendered against William J. Bettis, in his individual capacity, for damages and costs, instead of directing the amount to be levied Be bonis iniostulis. Our statutes no where, in express terms, authorise the claim of property levied on, to'be made by an executor or administrator, so that the question of the personal liability of the claimant, must be determined by a reference to the fitness-of the thing, and the analogies of the law. It cannot be denied, even if an administrator incurs a personal responsibility, according to the stipulations of his bond, that he may make good the issue on'his part, by showing title in bis Intestate-(Mansell vs. Israel, 3 Bibb’s Rep. 510.)

To test the question by analogy,--suppose an administrator to detain, in that character, the possession of personal property, to which another person had a paramount title. The true ov/ncr is not forced to the necessity o'f asserting his right to the iking against him in iris fiduciary character, but mny charge him ¡iorsonaily, upon "the’ ground of his possession- And in this there is no hardship,, for the administrator may retain possession, to enable him, if a recovery is hud against him, to restore the property to its rightful owner.

In respect to the damages for a detention, in legal contemplation, the use of the thing would afford an adequate indemnification, and if the question of titie Was litigated in-good faith, to protect the rights supposed to pertain to the.intestate’s estate, the administrator, ího'ughprímarily liable, might look to that source for reimbursement

If the law were.otherwise, it would frequently operate injuriously to the true owner of properly. Was the administrator only chargeable in his representative character, the estate'of the intestate co.ukl alone be resorted to, and if the property was disposed of in the course of administration, before the determination of the suit against the administrator, co that if could not be reached, the owner would be referred to the estate of the intestate, and if that were insolvent, he would come in as other creditors. But the insolvency of the administrator, when charged in his own right, cannot work a loss to the owner, as the law authorises the delivery of property to the plaintiff, immediately on commencing his suit,’ upon his indemnifying, by bond and- surety, the defendant; unless the defendant himself will execute a bond, with surety, to have the property forthcoming, to satisfy such recovery as may be- had against him.

The rule, that he who has the possession of property, which he detains against the rightful owner, is liable to an action, — is so strict, that it has been holdcn; where there are several executors, and one only has the possession, he alone must be sued-(2 Starkie’s Evi. 494; 1 Saund. on Pl. & Evi. 436.) And a defendant will not be allowed to give in evidence, in tli'e action of detinue, (as he may in trozar,) that the property was delivered to him as a pledge — (Starkie on Evi. 495; Bull. N. P. 51.) Nor will it avail him any thing, to show that the property was destroyed, or died after suit brought—(Skipper vs. Hargrove, Martin’s No. Ca. Rep. 74; Carroll vs. Early, 4 Bibb’s R. 270.)

Now,’ in the case at bar/tlie claimant received the possession of the slaves levied on, and stipulated to pay such costs and damages as might be recovered against him, so that the slaves may be had forthcoming to satisfy the execution, if they are living; and if they are dead, it is right that it should be satisfied out of his estate, as he wrested them from its operation. So far as it respects the damages, it cannot be material, even in an equitable point of view, whether he is indemnified to .that extent: the jury, by their finding,' have said that the claim of property was not made in good faith. The costs rest upon the same ground, and docs not prove that the judgment is erroneous. If the administrator, in such a case, is aggrieved, by being forced to expend money to protect the estate of his intestate, the court that settles his accounts can do him justice.

Second — In regard to the second point, we think it cannot be seriously argued from the record, that the proceeding in the Circuit was discontinued by James Wilkins, or that William J. Bettis was not legally a party. Bettis voluntarily, by the assent of the court, and with the consent of the defendant in error, was substituted for Wilkins, and it is not for the plaintiff in error now to object, that all this was irregular — consensus toll'd er-rorem.

Third — The execution levied on,--the property claimed, it may be repeated, — -was from “ another county,” so as to render its return there necessary. The statute, so far as applicable to such a state of case, is as follows: “Wherever property shall be-levied on by virtue of an execution from another county, if the same shall be claimed, and bond given to try the right thereof, the trial .shall be had, as heretofore, in the county where the, levy shall have been made, and it shall he the-duty of the sheriff to return the execution to the court from which it Issued, with his return endorsed, and to make out a copy of the same, and of his return, and return such copy to' the Circuit court of the county in which the levy shall be made, and the copy of such execution, shall be sufficient for the court to proceed on, and try the right of the property levied on.” In order to a compliance with this law, it is not only necessary for the sheriff to deposit a copy of the execution in the clerk’s office of the court to which the papers pertaining to the trial of the right of property are returnable, but he must also endorse a copy of the return made by him to the original: unless this be done, the copy made by the sheriff will not be evidence in itself.

The act, however, it may be observed, is merely affirmative, and does not necessarily exclude every other mode of proving a copy of the execution, so that the question arises, whether the proof made, as shown by the bill of exceptions,’was sufficient for that purpose. The deputy sheriff, who levied the execution, states that the paper offered as a copy, was made by himself, and that he regularly returned the original to its proper depository. It was, then, an examined or sworn copy, and according to all authority, is admissible on an issue to the jury.' The law is otherwise, where the issue is nul tiel record: there, the record must be produced sub pede sí-n-illi, or otherwise made authentic within itself, and if it be of the same court, it has been sometimes (though not uniformly) held, that the record itself must be inspected —(2 Bacon’s Ab. 612; Burk’s ex’ors vs. Treggs’ ex’ors, 2 Wash. R. 215; 2 Saund. on Pl. & Ev. 755, 756; 1 Stark. Ev. 155, 156, 157; Geohegan vs. Eckles, 4 Bibb’s R. 5.)

The remaining questions arising on the bill of exceptions, are believed to have been settled by the decisions of this court.

In Carlton et al. vs. King, (1 Stew. & Por. R. 472,) it •Was decided, that on the trial of the right of proper^, it did not devolve upon the plaintiff in execution, to produce the judgment on which the execution issued.

The case of Hooper vs. Pair, (3 Porter’s R. 401,) was a trial of the right of property ; and the court say, that the statute regulating the proceeding, directs that the issue shall be so formed as to try the right of property^ and it was framed in such terms as to present the question, whether the property, at the time of the levy, was subject to the satisfaction of the execution; that the statute did not authorise an issue, which would allow the claimant to litigate the regularity or justice of the judgment of the plaintiff in execution.

In Collingsworth vs. Horn, (4 Stew. & Por. R. 237,) the claimant objected to a pluries execution, on the ground 'that the defendant therein, was dead at the time of its issuance. The court held, that the objection was not available for one who was a stranger to the execution, and that being preceded by an original and alias, was not absolutely void.

The case of Perkins and Elliott vs. Mayfield, (5 Porter’s R. 182,) following what was supposed to be the settled law of this couit, decided that the claimant could not be allowed to insist, that the judgment was too defective to authorise an execution to issue. And in Boren et al. vs. McGehee, (6 Porter’s R. 432,) it was determined, that a defendant in execution could not object against a bona fide purchaser, at a sale made under it, that the judgment was'satisfied before the sale, though the satisfaction did not appear of record.

These cases are deemed decisive of the present, and it only remains to say, the judgment is affirmed.


text:
    WILLIAMS & IVEY, ex'ors, v. SIMS et al.
    1. Several joint executors were, at common law, considered aS but one person.

      2. At common law, all the executors named in a will, were required to join in prosecuting suits, and in actions against executors, might be made defendants — but in the last case, all. who proved the will were required to be joined.
    3. [The non-amenability oí a co-executor to the jurisdiction of an English court, affords no legal excuse for the omission to join him as a party defendant, if he be living, and has taken upon himself to execute the will.]
    4. [In England, sendee of a writ may be perfected on an absent co-defendant, by process of outlawry.]
    6. [But the American cases do not support the English rule.]
    6. The statutes of this State, relating to joint obligors, do not embrace joint-executors ; and are defective, in not providing a mode of proceeding, where a co-executor resides without the State.
    7. The non-residence of a co-executor, is sufficient to relieve the plaintiff from the necessity of joining him in an action'with his co-executors.

      Error to Pickens Circuit court.
    ■ Assumpsit against executors, tried by Martin, J.
    The defendants in error sued the plaintiffs,.as the executors of Thomas Ivey, deceased, in the Circuit court of Pickens, on a promissory note, made by their testator and another.
    The plaintiffs in error pleaded in abatement, that James Cavat, together with them,' were appointed- by their testator, executors of his-last will and testament; and that afterwards, on the thirty-first day of October, eighteen hundred and thirty-six, the plaintiffs, and Cavat, who is still living, duly proved their testator’s will, and took upon themselves the burthen of its administration. And fully to prove that théy, with Cavat, are joint-executors, the plaintiffs, in their plea, made proferí of the letters testamentary,' &c.
    The defendants in error replied, that. James Cavat, who was alleged in the plea to be a co-executor with the plaintiffs, was, at the commencement of the action, and still continued to be, a resident of the State of Mississippi, without the jurisdiction of the court, <£*c. To this replication there was a demurrer, which being overruled, and plaintiffs in error declining to join issue, a judgment was. rendered against them for the amount of the note, with interest. ...

      Phelan,, for plaintiff in error.

      .Porter, contra.

      Phelan, for plaintiff in error,
    insisted that the non-join-der of Cavat was pleadable in abatement — (1 Chitty’s PI. 41, 42; ibid. 392; 6 Term Rep. 327; Toller, 471; Gould’s PI. cli. 4, see. 73;' 2 Nott <& McCord, 70; 1 Haywood, 216.) .
    The replication to the plea was'bad ; — it did not admit or deny the plea, (1 Chitty’s PI. 541,) nor conclude with a verification, though introducing new matter — (1 Chit. 541; Gould, 168.) The non-residence of a co-executor ■ is not matter in avoidance. All co-executors are but one person in. law, (Toller, 37,) and must he sued, and the-action cannot be discontinued, as to those not served until after alias and pluvias — (Minor’s R. 77.) Where non-joinder is pleaded, plaintiff must commence fresh action —(1 Chitty’s PL 402.)
   COLLIER, C. J.

— Th¿ questions for our decision, are presented by the pleadings, and are—

1. Was it incumbent on the defendants in error, to join all who had qualified as executors 1 or,

2. Did the non-residence of Cavat relieve them from the necessity of joining him as a party to the action, with his co-executors ?

1. If a man appoint several persons his executors, and. dies, at common law, they were esteemed as but one person, in representing the ’ testator—(Wheeler, et al. vs. Wheeler, 9 Cow. R. 34;) and where there were several executors named in the will, all must have joined in the prosecution of an action, as the representatives of their testator—(2 Williams on Ex'ors, 1147.) Thus, in Bodle vs. Hulse, (5 Wend. R. 313,) it was held, that an action at the suit of one styling himself an acting executor, could' not be maintained, as it appeared there were others, though they did not act. In such a case, the court say, the correct practice, where one renounces the execu-torship, is to prosecute the action in the name of all the executors named in the will, if living, and on summons to those who will not join, there will be judgment of severance, and then those who have taken upon themselves to act, may proceed in their own names—(Wentw. Off. Ex. 212; 14 edition, 212, 225; 2 Williams on Ex. 1188, note s.) The law, in this respect, has been modified by the operation of our statutes, 'in regard to the qualification of executors.

The precise question came before this court, in Cleveland et al. ex’ors, vs. Chandler, (3 Stew. Rep. 489.) The court say, that, “at common law, the executor derived the authority to administer the testator’s estate, from the will exclusively; probate was required, that its genuineness might be ascertained, and its registration was intended as evidence to the -world of who was executor. It would therefore follow, that*as all persons named as executors in the will derived a joint interest, they should join in the prosecution of actions in regard to the estate.”

The court then briefly considers our statutes in regard to the probate of wills, and conclude : “ Prom thence if is obvious, that executors here derive not their authority entirely from the will; and that they are not entitled to exercise any power as such, until they have given .bond, and taken the oath prescribed.”

Thus, we discover that several joint executors, are to be considered as but one person in law. At common law, all who were appointed by the will, were considered as executors, for the purpose of prosecuting suits, while under the influence of our statutes, those alone are esteemed as such, who are qualified according to the requirements.

According to the English common law, it is regarded as settled, that in actions against executors, all who are named as such in the will, whether they have proved or not, may be made defendants — but if they have proved the will, they must be joined—(Lev. Rep. 161; 2 Saund. P. & E. 505.) The plea of the plaintiffs in error, strictly conforms to the authorities and course of practice prevailing in England; it contains the two allegations deemed essential there, viz., that the eo-cxeculor not sued, has administered, and is still alive —(2 Williams on Ex. 1188, 1189.) This brings us to consider the remaining question.

2. Now, it will follow, from what we have said, that the non-amenability of a co-executor to the jurisdiction of an English court,-affords no legal excuse for the omission to join him as a party defendant to an action ; if he be liying, and has taken upon himself to execute the will. There, the law authorises the plaintiff, (though he may be unable to effect the personal service of a writ, by means of what is there called process of outlawry,) to prosecute his suit to judgment. Our laws, in this respect, (as it regards executors and administrators,) are defective, in not providing a mode of proceeding, where a co-executor resides without the Slate, since it is clear, that our statutes relating to joint obligors, &c. do not embrace joint-executors, who conjointly represent the interests committed to them by the will. And the question now presented for our consideration is, Does the American. décisions sustain the English rule, and should we not, in view of the deficiency of our laws, be inclined to depart from it. '

A most industrious examination has enabled us to find two, and but two, cases, in. which the point came directly in judgment. The first is the case of Tappan vs. Bruen, (5 Mass. R. 195,) in which Sir. Chief Justice Parsons remarked,' it had been the immemorial practice, in the service of a writ sued on contract, against two or more defendants, if some of the defendants are without."the jurisdiction of the commonwealth, so that they could not be arrested, or have no place of abode within the same, at which a summons might be left to cause the writ to be served on the defendants within the State, and to proceed only against them for the breach of the contract by all the defendants; and if the plaintiff recover judgment, it is entered against the defendants only who were served with process. This practice has been found convenient ; and no injustice is done, because, if judgment had- been recovered against all -the joint debtors, the plaintiff might have satisfied it out of the defendants against .whom'it is in fact recovered. The practice had its origin in necessity, as the law of Massachusetts provided no mode of service upon a debtor without the State, who has no place of abode or property within it. And the court say further, that it has been extended to actions against executors or administrators living in different States, as the judgment is against the estate of the deceased.

The other case is Beach vs. Baldwin, (9 Conn. R. 437.) In this case, the defendant pleaded, that the testator appointed three other persons, together with the plaintiff,, his executors, who proved the will and accepted the trust; and are still living. The court held, that the plea' was not good, because it did not show where the co-execu-. tors resided: and because it did uot allege that they were such, at the time when the suit was commenced. The court remarked further,.that the jurisdiction of the courts in Connecticut, depends on the residence of the parties; the principle of the common law in that State, therefore, was, that this fact must be shewn in the plea, however the forms might bo. If the non-rcsidcncc of an executor should excuse the omission to join him as a plaintiff, much more should it dispense with the necessity of making him a co-defcndaut. The cases cited, we think, furnish ample authority for us to sustain the judgment of the Circuit court.

The fact, that process issued against but two of the executors, can make no difference. There is no authority for discontinuing as to the executor not served, -which would not warrant tito omission to proceed against him in the first instance. In fact, such a distinction would not harmonise with the analogies-of our statutory regulations, in respect to suits against joint obligors, &c.

In every view in which this case has presented itself to us, we think the rule, as modified in Massachusetts and Connecticut, far better calculated to promote the ends of justice,-than the rule which prevails in England; and hence, we arc disposed to depart from the latter, and recognise the forqier. The conséqucnce-is, that the judgment of the Circuit court is affirmed.