text:
    WILLIAMS et al. vs. POWELL.
    1. The endorsement of the canse of action on the writ, cannot be referred to, for the purpose of reversing a judgment.
    2. A declaration may be substituted for one that is lost,- as well after judgment rendered, as before.
    Error to Lowndes Circuit court.
    Debt, on a written contract to pay money, in consideration of the sale of land, by the defendant to the plaintiff-tried before Shortridge, J.
    In this case; judgment was rendered for the plaintiff in error, for a larger sum than was due on the contract. At a term subsequent to the issuance of the writ of error, the Circuit court, on motion of the defendant in error caused the entry of the judgment to be so corrected, as to make the amount recovered, conform to the sum due on the contract; and at the same time, on motion of the defendant in error, allowed a declaration to be filed, as a substitute for one which it appeared had been lost or mislaid, so that it could not be had to complete the record. Of these several motions, it appeared that the plaintiff in error had due notice.
    The plaintiff assigned four causes of error, but abandoned at the argument all but two, either' supposing them not available, or else embraced by the remaining two. The errors relied on, are,
    1. That there was no declaration ;
    2. If there was a declaration, it was insufficient to sustain the judgment.

      J. A. Campbell, for plaintiff in error.
   COLLIER, C. J.

The assignment of errors seeks to bring to the view of the court, the endorsement of the cause of action on the writ, with a view to a reversal of the judgment. We have repeatedly held, that the endorsement may be looked to, for the purpose of sustaining, but never to reverse a judgment. This objection, then, must be disregarded, which leaves us to consider whether the record contains a declaration sufficient to sustain the recovery by the defendant in error. At the suing out of the writ of error, there was no declaration on file; but at a term of the Circuit court holden subsequently, a motion was made for leave to file a new declaration, as a substitute for the original, which was lost or mislaid. The record, after reciting that the parties having notice of the motion, came by their attorneys, proceeds as follows : “ It appearing to the satisfaction of the court, that the original declaration in said cause had been lost or mislaid, so that it cannot be found, therefore, on motion of plaintiff, by attorney, it is ordered and considered by the court, that the said plaintiff have leave to substitute and file a new declaration, as of the last term, which shall be taken as, and for the original, and the said declaration now filed, be taken, allowed and adopted accordingly, being approved by the court. The said Thomas M. Williams, by his attorney, maketh objection to this judgment — and the plaintiff pays the costs of the motion, for which execution may issue.”

In Dozier vs. Joyce, (8 Porter, 30.3,) it was considered a clear right of the court, before which a cause was pend-ingj to permit other papers to be substituted for those which were lost. Such a right we think indispensable to the administration of justice, inasmuch as the loss of every thing whose safe-keeping depends upon human care and vigilance, is within the range of possibility, and the papers belonging to our courts as much so, as any others: individual interests would be subject to jeopardy, if the most solemn acts of courts were rendered void, by the mere loss of any part of the written proceedings which led to them.

Understanding, then, that this right is incident to all ’«courts,.it is quite as important that it should be exercised after as before judgment. But it is objected, that the jurisdiction of the court is exhausted by the rendition of the judgment, and that a substitution allowed after-wards, would be an act coram non judice. This argument, we think, is not supportable. Courts, it is true, cannot, on motion, permit the pleadings in a cause to be amended after judgment, nor can they cause a judgment to be amended, so as to divest it of error at a succeeding term, unless the defect is properly chargable to the clerk, and the record furnishes something to amend by. These instances, however, serve to show that a court does not lose all control over its proceedings by the judgment, but that in order to make effectual its acts, it may materially interfere with them; and as it is quite as important that this right should exist after, as well as before judgment, we have no hesitation in determining, that the substitution of a declaration was not allowed at too late a period.

It is further objected for the plaintiff in error, that the record does not discover that the declaration received by the court, was not a literal or substantial copy of the declaration originally filed. This is true, yet the reverse is not stated, and as the court should not have received a declaration, which did not substantially correspond with that for which it was substituted, we should intend that it instituted the necessary enquiry on the point, and that its decision was correct.

We are aware, that if on motions to substitute papers, affidavits and counter-affidavits are received to aid the determination of the court, questions of fact exceedingly embarrassing would arise, so much so, that it would be difficult, if not impossible, in many instances, to attain a satisfactory conclusion. To avoid this perplexity, the court should, in the first place, propose to the parties to permit such a paper to be filed as they may agree on — if they will not, or cannot agree, then the court should have recourse to such proof as may satisfy it that the paper offered, corresponded so nearly with the paper lost, that the adverse party could not be prejudiced; but in no case should a substitute be allowed, where this proof cannot be made.

We do not understand that there is any objection to the judgment, nunc pro tunc. In fact, it is so beneficial to the plaintiff in error, and for any thing shown by the record, so entirely regular, that we suppose its correctness could not be drawn in question.

Our conclusion is, that the judgment of the Circuit court must be affirmed, but as the judgment wasreversa-ble, when the writ of error was sued out, the defendant in error must pay the costs of this court.


source: Caselaw Access Project

author: ORMOND, X — This

license: Public Domain

text:
    DELONEY et al. vs. WALKER et al.
    1. The lands of a person who dies intestate without children,- oí* brothers or sisters, or the descendants of such, or father or mo--ther, shall descend to his- paternal and maternal uncles and aunts, equally.
    2. The lands of an adult cannot be sold by a decree' of the chancellor, to make partition, without liis consent — the proper* mode of proceeding is, after partition made, to direct each par-' ty to convey to the other.-
    Error' to Limestone Circuit court, exercising chancery jurisdiction.-
    Bill for partition, tried before Lane, X
    The decree below ordered a sale and division, and the' error here assigned was, that the bill was not dismissed.-
    Robinson,- for plaintiffs in error.-

      McClungf contra.
   ORMOND, X — This

was a bill filed in chancery,- for a partition of lands.

The principal question to be determined in this case* is whether, where a person dies without children, or brothers or sisters, or the descendants of such, or father or mother, his lands shall descend to his paternal and maternal uncles and aunts equally, — or whether it shall descend in the line of the blood of the first purchaser, who, it is alleged in the answer, was the father of the deceased.

As the answer contains a demurrer to the bill, it is necessary first to determine, whether equity has jurisdiction. The jurisdiction of courts of chancery, to entertain a bill for partition of lands, appears to be founded on the ability of a court of chancery to do complete justice in those cases, where, from the complication of the title, or from the fact of its being of an equitable nature, a court of law could not afford an adequate remedy, or would be precluded, by the nature of the title, from making partition.

Whatever may have been the origin of the jurisdiction, it is now very clear, that an application to a court of chancery for that purpose, is not addressed to the discretion of the court, but is a matter of right, if the title of the plaintiff is admitted or clear. “ Bui if the title be denied, or it depends on doubtful questions of law, or complicated facts, the court will not dismiss the bill, but will retain it until the parly shall have established his right at law” — (See the case of Straughan and others vs. Wright and others, 4 Rand. Rep. 493, where the case is very lucidly stated; and also 1 Story’s Equity, 599; Mitford on Pleading, 170; Wisely vs. Findlay and others, 3 Rand. Rep. 361; Barry vs. Nash, 1 Vesey & Beam, 552; Agar vs. Fairfax, 17 Vesey, jr. 551.)

The question of title in this case, is one of undoubted law, arising on the construction of our statute of descents, and it would subserve no other purpose than to promote litigation and expense, to require the complainants to establish their title at law.

It is further insisted, that as there is no allegation in the bill, that the deceased had neither brother nor sister, or descendants of such, that the complainants have not shewn a title in themselves. It is certainly true, that it was the duty of the complainants to state their title with precision, and this appears to have been sufficiently done in this case. The complainants claim to be, with the wife of the defendant, Deloney, the heirs at law of the deceased; which title is asserted to be in them, as the uncle and aunts of the deceased. It was not necessary to allege the non-existence of those relations, who are, by the statute of descents, preferred to the uncle or aunt, as the assertion, that standing in that degree of relationship to the deceased, they are his heirs at law, is equivalent to the allegation, that no one preferred to them by the statute, is in existence.

The'material question in this case, is, whether it was the intention of the framers of our statute of descents, that, on failure of lineal descendants, the estate should only descend to those collateral relations, who are of the blood of the first purchaser, which is the fifth canon of descents, as laid down by Blackstone in his Commentaries.

The affirmative of this proposition, is maintained by the counsel for the plaintiffs in error. The first purchaser of the lands in controversy, having been the father of the intestate, — and the wife of the defendant, Deloney, being his paternal aunt, — it is insisted, that she will take the whole estate, to the exclusion of the complainants, who are the maternal uncle and aunt of the deceased. The statute is in these words:

“ Where any person shall die seized of any estate or inheritance in lands, tenements or hereditaments, not devised, the same shall descend to his or her children, and. their descendants, in equal parts, the descendants of the deceased child or grand-child to take the share of their deceased parents, in equal parts among them; and where there shall be no children of the intestate, nor descendants of such children, then to the brothers and sisters of the intestate, and their descendants, 'in equal parts; the descendants of a brother or sister of the intestate, to have in equal parts among them, their deceased parent’s share ; and where there shall be no children, or descendants of them, or any of them, and no brothers or Sisters, or descendants of them,' or any of them, then to the father, if he be living, if not, to the mother of the intestate ; and if there be no children of the intestate, or descendants of such children, and no brothers or sisters, or descendants of them, nor father or mother, then such estate shall descend in equal parts to the next of kin to the intestate, in equal degree, computing by the rules of the civil law; and there shall be no representation among Collaterals, except with the descendants of the brothers .and sisters of the intestate; and there shall, in no case, be a distinction between the kindred of the whole and half-blood, except the kindred of the whole blood, in equal degree, shall be preferred to the kindred of the half-blood in the same degree, saving to the widow of the intestate, in all cases, her dower ; and where there shall be no children of such intestate, nor descendants of them, then the widow shall have as her dower, one half of such before-mentioned estate of her deceased husband” —(Aik. Dig. 128.)

It is impossible, we think, to doubt that it was the intention of the Legislature to abrogate the entire common law rules of descent, and to introduce new rules in their stead, more consonant to our institutions. Not only is the law of primogeniture abolished, and females placed on the same footing with males, but also all consideration of the necessity of tracing a descent from the blood of the first purchaser, is excluded by necessary implication. That requisition was supported by considerations derived from the Feudal System, -and fell with it.— This is demonstrable from the law itself. For example: by the statute, the mother may inherit from the child, an estate of which the father was the first purchaser; at her death, the inheritance would descend upon a new line of heirs, who might not, and generally would not, have any of the blood of the first purchaser. A still more conclusive argument is found in the fact, that by the same act, the personal property of an intestate is to descend to, and be distributed in the same manner as real property is to descend. It would be monstrous, to suppose that the Legislature could have intended to apply the rule contended for, to personal property, yet that would be the legitimate consequence of adopting the construction contended for by the plaintiffs’ counsel. We are, therefore, of opinion, that the estate of John Fox, deceased, before his dying intestate, descended upon, and must be divided equally among his uncle and aunts, both on the father’s and mother’s side.

But there is error in the interlocutory decree of the chancellor, directing the lands to be sold. We cannot suppose a case, in which the lands of an adult can be sold by a decree of the chancellor, to make partition, without his consent; no such consent appears in the re-pord. One of the grounds on which the equitable jurisdiction is maintained is, that a court of chancery may, where lands cannot be equally divided, restore the equilibrium, by directing compensation to be made — (Earl of Clarenden vs. Hornley, 1 P. Williams, 447.) Cases may exist, in which, where infants are concerned, the chancellor may have power to decree a sale, to make more equal distribution; but that is not this case.

The proper mode of proceeding is, after partition made, to direct each party to convey to the other — (1 Story on Equity, 606, and cases there cited.) The decree must, therefore, be reversed, and the cause remanded for further proceedings. As this point was not made in the argument, and as it is probable the case was brought here merely to ascertain whether the complainants had title, each party will pay his own costs in this court.


author: GOLDTHWAITE, J. — The

text:
    BROWN & MILTON vs. BAKER, SPROULS & CO.
    1. It is the duty of the sheriff to return process to the proper court, whether executed or not.
    Error to Talladega Circuit court.
    Motion to set aside a levy.
    The sheriff of Talladega county, levied an execution in favor of the defendants in error, on property in that county, which was claimed by a third person, and surrendered to him. The execution was then sent to St. ¿Clair county, and the sheriff of St. Clair made a levy there, and at a subsequent term of the Circuit court of Talladega, defendants in the execution, moved to discharge the levy made by the sheriff of St. Clair, on the ground of irregularity. This the court declined, and allowed the sheriff of Talladega to amend his endorsement and return.
    All of which is now assigned for error.-

      Martin, for plaintiffs in error.
   GOLDTHWAITE, J. — The

act of assembly, of the twenty-third of December, eighteen hundred and thirty-six, entitled “ an act to amend the laws regulating judicial proceedings,” (pamphlet acts, 25,) provides, “ that all original mesne and final process, issued from any clerk’s office in this State, shall be directed to any sheriff of the State of Alabama; and it shall be the duty of any sheriff or coroner, if the case requires it, in the State, in whose hands any such process shall be placed for service, to execute and return, or to return, (if it cannot be executed,) the same as required by law, when process is specially directed to him.”

It Will be seen, that this act expressly directs the offi-cef ill whose hands the process is placed for service, to return it, whether it is or is not executed, and the then existing laws in relation to the return of process, were not attempted to be changed. By the statutes in force, when the act of eighteen hundred and thirty-six was passed, sheriffs were required to return all writs and executions to the clerk’s office from whence they issued, at least three days previously to the term of thé court to which they might be returnable — (Aik. Dig. 279.) Whenever process is returned to the proper court, or its return day has passed, it ceases to have any effect, its mandate having been performed, and if the plaintiff wishes to proceed further, additional proceedings must be had. The counsel for the defendants in error, insists that a construction ought to be placed on the act of eighteen hundred and thirty-six, which will give the most extended effect to the intention of the Legislature, which, he argues, was to give the plaintiff the right, under one writ of execution, to pursue the person or property of the defendant to any one, or, if necessary, to all of the counties of the State. To this, it may be answered, that no such intention can be ascertained from the act itself; there was no defect in the then existing laws, in this respect, to warrant the idea, that such an alteration was contemplated; and full effect can be given to the act, without adopting this construction.

Under the previous legislation on the subject of executions, a plaintiff was obliged to sue his writ specially, to be directed to the sheriff of some one county, and it could be executed by no other sheriff. The act of eighteen hundred and thirty-six removes this difficulty, and permits the issuance of the execution to all the sheriffs, leaving the plaintiff to select the one with whom he will place it for service.

An examination of the several statutes then and yet in force, relating to executions, will serve to show that a plaintiff might, and can now, have execution issued to more than one county, he being taxed with th'e cost of each additional writ; or he might, and can now have successive executions to every county, without incurring' expense, by causing the previous execution to be returned, either' in vacation, or term time. The second section of the act’ of eighteen hundred and seven,- directs that “ when any execution shall issue, and the party at whose suit the same is issued, shall afterward desire to take out another writ of execution, at his own propel'' cost and charges, the clerk may issu'e the same, if the first be not returned and executed” — (Aik. Dig. 159.-)

The fourth section of the act of eighteen hundred and eighteen, provides that all executions required to be issued on a return, in vacation, shall bear title on the return day of the last execution; and the act of eighteen hundred and twenty-one, before referred to, directs the sheriff to return all executions at least three days previously to the term of the court to which they are returnable. The enactments last quoted, sanction and recognise the propriety of a return in vacation. It then appears, that a plaintiff can, if he chooses so to do, in the first instance, procure execution to be issued to more than one county, by paying the cost of the additional executions, or he can procure a return in vacation, when he has caused the execution to issue to a county where the defendant has no effects, and have another issued, which he can place in the hands of any other sheriff for service, without expense.

We consider the act of eighteen hundred and thirty-six, as imperative on the sheriff in whose hands process is placed, to return it to the proper court, whether executed or not; and this construction renders it unnecessary to express any opinion as to the effect of the amendment made by the sheriff of Talladega, of his return, — the amended return only shewing that an ineffectual exertion had been made to compel the payment of the sum specified in the execution; but it did not authorise the plaintiff to consider the authority of that sheriff determined or gave validity to the execution, when placed in the hands of the sheriff of St. Clair. If it was necessary to make the money in St. Clair, the plaintiff ought either to have procured a return of nulla bona to be made by the sheriff of Talladega county on the execution, or he should have procured another writ at his own expense, in the absence of a return of the one already issued, and placed in the hands of the sheriff.

This brings us to the conclusion, that the Circuit court erred in not setting aside the levy made by the sheriff of St. Clair — and for this error, its judgment is reversed, and the case remanded, in order that further proceedings may be had, not inconsistent with this opinion.


author: COLLIER, C. J.

text:
    M’MAHAN vs. KYLE et al.
    1. A notice against a constable and his sureties, for a failure to return an execution, or to pay over moneys collected, may be issued by, and returned to the successor of the magistrate who issued the execution ; and the notice, reciting that the justice who issued the execution, was not in office, on demurrer, the court would intend that the justice issuing the notice, was his successor.
    2. The joinder of two distinct grounds, in the notice, was not an available objection on demurrer.
    Error to the Circuit court of Pike county.
    Proceedings against a constable.
    This was a proceeding commenced before a justice of the Peace of Pike. A notice, signed by the plaintiff in error, and addressed to the defendants, informed them that a motion would be made before a justice of the peace of that county, against them, as a constable and his sureties, for failing to return an execution, theretofore placed in the constable’s hands, to be executed and returned ; or if that motion should be denied, then to recover of the constable, money received by him thereon.
    The notice having been duly served, the justice of the peace, before whom it was returnable, rendered a judgment thereon, for the amount of the execution, which there was a failure to return. From that judgment, the defendants appealed to the Circuit court, and there demurred to the proceedings before the justice. The demurrer being sustained, and judgment final rendered against the plaintiff, he has sued out his writ of error to this court.

      Porter, for plaintiff in error.
   COLLIER, C. J.

We are at loss to discover the cause for which the demurrer was sustained by the Circuit court. True, the notice was not returnable before the justice who issued the execution, yet it recites that he was not in office at that time: so that if it were material to the plaintiff’s case, we would intend the justice who rendered judgment on the notice, was the successor to him, who issued the execution; and by this intendment, the defendants could not be prejudiced, for if it were unfounded, and the truth of the fact would avail them as a defence, it might be shown by proof.

It surely cannot have been supposed, that the joinder of two distinct grounds in the notice, was not allowable: if this was not permissible by law, it afforded no cause for sustaining the demurrer. The Circuit court could have put the plaintiff to his election, or, if the notice was otherwise defective, as a statement of the cause of complaint, could have caused the pleadings to be made up under our statutes; so that the record should present, fully and fairly, the case to be tried — (Aik. Dig, 175, sec. 80; 300, sec. 7; 260, sec. 10; 261, sec. 12.)

We are unable to find any ground on which to rest the judgment of the Circuit court — It is consequently reversed, and the case remanded, 1


author: ORMOND, J.

text:
    HANSFORD & SANDFORD vs. MILLS.
    1. Where several notes are given to a plaintiff, for a consideration which, with the assent of the defendant, fails in part, the failure cannot be set up against all the notes — plaintiff may recover on the first note sued on, the amount due him for past performance.
    Error to the Circuit court of Autauga.
    Assumpsit — before Shorfridge, J.

    The action in the court below, was brought by the defendant in error, against the plaintiffs, on two notes, of thirty dollars each. On the trial, as appeared from a bill of exceptions, it was proved that the notes sued on, with others, were given for a negro to one Tabor, from whom the plaintiffs received it; that in August, of the same year, the negro was taken from the defendants below, with their assent, by an agent of Tabor; it was also proved, that the hire of the negro for a year, was worth more than one hundred dollars. The defendants below moved the court to charge the jury, that inasmuch as they were not bound for the hire of the negro, after Tabor took possession of her, that there being a failure of consideration, it could be pleaded to either note given for said hire, although all the notes had been assigned to other persons. The court refused this charge, and charged the jury, that the defendants could not set up the failure of consideration to the first note sued on, but that judgment must be obtained for the amount the defendants actually owed for the hire of the slave.

      Dargan, for plaintiffs in error.
   ORMOND, J.

The charge of the court is undoubtedly correct. The negro, being taken away from the plaintiffs in error, by their consent, and that of the owner, they were not liable for the hire of the slave, for that portion of the year which had not expired; but there can be no pretence for resisting a recovery, for the amount actually due. It is not certain, that any claim will ever be asserted for the resiiue of the hire — and should it be attempted, the plaintiffs in error can defend against it, by proving that they have paid all the hire for which they are responsible.

Let the judgment be affirmed,


author: GOLDTHWAITE, J.

text:
    PRICE et al. vs. CHEVERS.
    1. An omission to file a declaration, will be fatal on error, notwithstanding defendant may have appeared to the action, and suffered judgment by default.
    Error to Marengo Circuit court.
    Assumpsit — tried- before Chapman.) J. Judgment for defendants below.
    The error assigned was, that there was no declaration filed by plaintiff below,
    Murphy, for plaintiffs in error,
   GOLDTHWAITE, J.

There is no declaration found in the record of this case, and the judgment was rendered, “because the defendants said nothing in bar or preclusion of the plaintiff’s action.” No attempt seems to have been made in the court below, to account for the absence of the declaration; nor in this court, to perfect the record by certiorari. The case presents the naked question, whether the omission of the plaintiff to file a declaration, can be taken advantage of by the defendants, who have appeared to the action, and suffered a judgment to pass against them by default. We entertain no doubt that this is a fatal error, which has not been waived. In the case of Wheeler vs. Bullard, (6 Porter, 152,) we carried the doctrine of waiver to as great an extent, as we think is compatible with the rules of law, even when interpreted in conformity with the laxity of practice, which is known to prevail in many of the circuits. We there held;, that after a plea withdrawn, we would consider the defendant to have waived all matters in relation to the declaration, as by pleading, he admitted its existence, and by withdrawing his defence, he admitted its legal sufficiency* In this case, no such presumption can arise, as the defendants remain entirely passive; no act is done by them from which an inference can be drawn, that they either knew of the defect, or waived it. We can arrive at no other conclusion than this — that the plaintiff omitted to file a declaration. This omission is Unwarranted by law, and the judgment of the Circuit court cannot be sustained — It is reversed,, and the case remanded*


text:
    HEIRS OF DUNNING ET AL. vs. STANTON ET AL.
    1. Qwere — Whether publication* under our chancery practice, is necessary, where non-resident defendants are infants.
    2. An order in chancery, made at the second term after the filing of the bill, reciting that publication was duly made, of an order of the previous term, requiring non-resident infant defendants t ) appear, answer, &c. — appointing a guardian, ad litem, taking the bill pro confesso, and referring it to the master to take and' report an account to the same term, — was held to be irregular,
    3. And a decree, rendered at the same term, confirming a report of the master, (made in obedience to such order,) and directing a sale of mortgaged property, without an answer or proof by the guardian, is erroneous; because the infant defendants are denied the benefit of a full defence.
    • Error to Mobile Circuit court, exercising chancery ju~-risdiction.
    Bill to foreclose a mortgage.
    The defendants in error filed their bill in equity, in the Circuit court of Mobile county, to foreclose the equity of redemption of the plaintiffs, to certain real estate conveyed to the defendants, by way of mortgage. A subpoena was issued, returnable to the first term of the court after the filing of the bill, which was executed on the administrator of Edward Dunning, and John F. Adams, one of the mortgagors, but as to the heirs of the intestate, there was no return.
    At the same term of the court, an order was made, reciting that all the defendants below, were non-residents,, and requiring them to plead, answer or demur, to .the complainants’ bill, &c. — which order was directed to be published, &c.
    At the next term, the following order was made in the cause: “ This day came the complainants, by their solicitor, and produced to the court the printed advertisement, and the affidavit of the clerk, that publication had been duly made, in pursuance of a previous order of this court, against the defendants, who are non-residents— and B. B. Breeden, Esq. is appointed guardian ad litem, of the minor heirs of Edward Dunning, deceased. And defendants failing to appear and answer the allegations of the complainants, set forth in their bill, the same are taken as confessed; and the mortgage and notes being produced and proved — it is considered by the court, that they be referred to the master, to take an account between the parties, and to report the same to this term of the court — and Mr Breeden comes into court, and accepts the guardianship.”
    The master, at the same term, made his report, showing the amount of principal and interest due on the mortgage — which was forthwith confirmed; and a decree for the foreclosure of the equity of redemption, and sale of the mortgaged premises, rendered in usual form. To revise this decree, the defendants below have prosecuted a writ of error to this court, and insist that the same is erroneous, because it was rendered on the same day that the guardian ad litem, to the infant heirs of Edward Dunning, was appointed; and that time was not given to the guardian, to answer the bill.

      Aikin, for plaintiffs in error.
    Gibbons, contra.
   COLLIER, C. J.

It may well be questioned, whether an order of publication, under our chancery practice, is necessary, where the non-resident defendants are infants. As an infant can only answer through his guardian, can he be said to be in default, for failing to appear and defend in person? But we will waive the consideration of this point, since it is not distinctly presented by the assignment of errors — (Mills vs. Dennis et al. Blake’s Ch. Appendix, 125.)

A decree cannot be rendered against an infant, in a case affecting his interest in property, unless a guardian has'.been assigned to conduct his defence. In order to defend, an opportunity must be afforded to answer, and to take testimony, if desired. No laches are imputable to an infant, nor can the guardian a,d litem, by any consent, bind his rights. A valid decree cannot be awarded' against him merely by default, or upon such consent. The plaintiff must, in every case, prove his demand, either in court or before the master, and this proof is not properly admissible, till a guardian has been appointed, who may state his objections to it. It is the duty of a guardian, to make such an answer to the bill, as will throw the burthen of' sustaining its allegations upon the plaintiff,. If such answer is desired, we suppose the guardian would be subject to the usual process of chancery to compel it; yet, as under our practice, the legal effect of a decree pro eonfesso against the infant, would be, not to prejudice his rights, but to place the case in a condition that the plaintiff might take his testimony, and bring on the case for hearing, we can see no objection to it, unless it might indicate a faithlessness by the guardian, to the trust con-Acted to him; but this objection, we apprehend, would not be very weighty, if, in other respects, the guardian, manifested the proper vigilance over the interest of his charge.

If a decree pro confesso be allowable, it is clear, that it cannot be regularly rendered, until an opportunity has been afforded for an answer, and declined; nor can proof be made by the plaintiff, till an answer has been filed, or the bill taken for confessed.

The correct practice, where any of the defendants are infants, is, for the plaintiff, at the first term after filing his bill, to move the court to assign them a guardian, who should answer: then, either party may proceed to take testimony, and the cause be brought to hearing, in the regular course of procedure. We say, this would be the correct practice: whether there may not also be some other, that would be unobjectionable, we will not undertake to determine.

In the case before us, no time was afforded the guardian to answer. At the same instant of time that he was appointed, the bill was taken pro confesso, under an order of publication of the previous term — the mortgage and notes were produced and proved, and the matters of the bill referred to the master, to take and report an account to the court, at its then term; and then, as the order informs us, Mr. Breeden accepted the guardianship. For any thing appearing in the record, he may not have been in court, until the order of the court was complete, so that nothing was left for him to do, but to attend before the master, and to except to the report, if adverse to the infant, and unauthorised by the proof or the law. The court clearly should have appointed a guardian, before the cause was allowed to progress, or having appointed him, after the plaintiffs had taken measures to bring it to a hearing, the cause should have been then placed in a situation to allow of every exception to the bill, testimony, &c. that could have been made, had a guardian been assigned at the proper time.

Inasmuch, then, as the infant defendants had not. an opportunity to .make full defence, according to the forms of proceeding in such cases — the decree of the Circuit court must be reversed, and the cause remanded to the court of Chancery, at the costs of the defendants in error.


text:
    WINSTON vs. MOFFET.
    1, A special plea, setting- forth that the deed sued on was not the deed of the defendant, because, at the time of its execution, lie was a lunatic, — not verified by affidavit, is bad on demurrer.
    2, Matters purely discretionary with the court below, do not admit of review.
    3, An inquisition of lunacy was found against Winston, and being made known to the court, his guardians were permitted to come in and defend. The inquisition being . afterwards set aside, and Winston restored to the management of his estate, the order appointing the guardians of the lunatic to defend, was discharged. Held, that as Winston afterwards appeared by attorney, no process was necessary to bring him into court, and that the irregularity, if any existed, was waived by his appearance.
    Error to the Circuit court of Sumter.
    Covenant — before P. Martin, J.
    The facts of this case, so far as it is considered necessary to state them, are, that the action was commenced in the court below, by the present defendant, against the plaintiff, and the writ returned, executed. At the return term, it being suggested to the court, that an inquisition of lunacy had been found against the defendant below, and that William O. Winston and William Elliott had been appointed his guardians, — the court, on their motion, appointed them parties defendant to the suit. The cause was continued for several terms, and it being made known to the court, that the inquisition of lunacy had been set aside and vacated,and the defendant admitted to the management of his business and estate, the order appointing William 0. Winston and William Elliott to defend the suit, was set aside, and the cause continued.
    At another term of the court, the record states, that John Erwin and William M. Murphy, esquires, attorneys of the court, suggested, and insisted that the defendant, Anthony Winston, had not been legally and regularly brought into court; and that the cause did not, and could not, stand for trial as to the said Anthony Winston;— which motion the court overruled, and thereupon the said Erwin and Murphy appeared, and announced themselves' the counsel for the said Anthony Winston, and announced themselves ready for trial; and the demurrer of the defendant to the first count of the declaration being sustained, the defendant pleaded to the second count, the plea of payment, and a plea of non est factum, which is-in these words: “And the said Anthony Winston, by attorney, comes and defends the wrong and injury, when, &c. and says that the said agreement or mutual covenant,in the said second count of the said declaration of the said Elihu Moffet contained and set forth, is not his deed* because he says that at the time the same was executed, signed, sealed and delivered, to wit, on the 7th November, 1835, he, the said Anthony Winston, was a lunatic, and of unsound mind, memory and discretion, to wit, at the county aforesaid ; and of this he, the said Anthony Winston, puts himself upon the country.”
    - The plaintiff below took issue on the plea of payment,- and demurred to the special plea, which demurrer was sustained by the court, and leave given to the defendant to plead over to the merits of the action. The defendant then tendered a plea of lunacy, which being objected to by the plaintiff’s counsel, on the ground of surprise, after the trial had commenced, the court refused the defendant leave to file the same.
    There was a verdict and judgment for the plaintiff below, from which the defendant prosecutes a writ of error to this court.

      Hopkins, for plaintiff in error.
    Gayle, contra.
   ORMOND, J.

The view we take of this case, will render it unnecessary to consider many of the questions which were argued at the bar. We are relieved from the necessity of considering, the propriety of the judgment of the court below, that the-defendant was in court after the discharge of the order appointing his guardians to conduct the cause during his lunacy, without any further process or act of the court ,to bring him in, as his subsequent appearance by attorney, was a waiver of the irregularity, if any existed. An appearance would cure a discontinuance, or supersede the necessity of showing that a writ had issued, it must, a fortiori, be sufficient, where the party is regularly in court, and his capacity to act been suspended for a limited period. It could not be tolerated, that a party should appear, litigate his rights before the court, and afterwards insist that he was not in court. The distinction which the learned counsel for the plaintiff attempted to draw between an appearance, after a defective service, or without service of process by a ministerial officer, and an appearance su-perinduced by a wrong judgment of a court, does not appear to us to be sound — the principle, in both cases,' appear to be the same. In either case,- he is under no legal obligation to act,- but may rest securely on his-rights; or he may waive his privilege and- consent to a litigation of the matters in controversy. If he do so,- he cannot afterwards be permitted to say the court had no power to do the act which he voluntarily submitted td its judgment.

We come nest to the consideration of the judgment-on the demurrer to the plea of the defendant. No other objection has been made to the plea, but that it is not verified by the oath of the party. In answer to this objection, it is insisted by the plaintiff’s counsel, that a plea-denying the validity of a deed, from the lunacy of the maker of the deed, is not within the statute requiring pleas of non est factum to be verified by the oath of the-party, but that the statute is confined to cases- where the1 execution of the instrument is denied, which,- by the plea in this case, it is said, is distinctly admitted ;■ and that the allegation in the plea, that it is not his deed, is merely the conclusion of law, from the fact of lunacy previously alleged.

As lunacy may be given in evidence,- under a plea of non est factum, it would seem to follow, that merely re-citing in the plea, the reason why the deed was not the act of the defendant, could not change the character of .the plea. But can effect be given to the law requiring the plea of non est fctctum to be sworn to, without requiring an affidavit of the truth of such a plea as the present, and many others, that might be supposed of a kindred nature?

A construction, that the Legislature merely intended to dispense with proof of the execution of the deed, would confine the law within narrow limits. It would not include the case of a deed, alleged by plea to have been delivered as an escrow — obtained by duress, or executed 'by an agent, if the statute can be evaded by pleading specially the facts which, if true, would render the deed null. The mischief, in such cases, would be equally as great, and, in many instances, greater, than that supposed to be the one designed to be prevented. Thus, if the deed sought to be enforced, be made by an agent, the knowledge of such agency may rest solely in the breast of the defendant, and if the agent were dead, the party claiming under the deed, would be without remedy : so, in the case of lunacy, the lunacy might be simulated; and if the plaintiff, in these and similar cases, can not apply through the statute, to the conscience of the defendant, he would be without redress. But it is argued, that it is absurd to suppose that a man should be required to swear that he had been a lunatic, as it cannot be presumed, that he could know what he did, or did not-do, when deprived of reason. It was precisely by such reasoning as this, that the courts anciently held, that a man should not be allowed to stullify himself; yet the reasoning, and the rule founded on it, has long since been exploded. In all cases in which a plea is required to be sworn to, it may be done, by the person swearing, to the best of his knowledge and belief.

The view - we are now taking, has been hitherto the doctrine of this court, in cases analagous. It was first determined in Tindal vs. Bright, (Ala. Rep. 103,) which is adopted as a correct exposition of the statute. In the case of Martin vs. Dortch, (1 Stewart, 479,) Martin had been sued as administrator, and pleaded that one Huff (who professed to he the agent of Martin’s intestate,) had no authority in writing under the hand and seal of the deceased to execute the instrument on which he was sued. The plea was not sworn to, and on demurrer, it was held bad. The court, in their opinion, after affirming the case of Tindall vs. Bright, say, “ the defendant may, by special plea stating the circumstances, deny the legal effect or validity of the bond on which he is sued. To determine whether an administrator or executor is authorised to plead non est factum, generally or specially, without accompanying his plea with an affidavit of its truth, reference must be had to the statute, the language of which is found to be, that “no plea of non est factum shall be admitted to be pleaded, but when accompanied with an affidavit of its truth.” “ The statute contains no qualification as to persons, but applies to all pleas of that denomination.” This, it is conceived, is an authority full in point, and shows very conclusively, that there is no difference, so far as the statute operates on the plea, between a special plea, which denies the validity of the instrument, by asserting facts, showing that the deed sued on, is not the deed of the party, — and the general plea of non est factum; and it would be strange, indeed, if there could be supposed to be a specific difference between two pleas, which could be sustained by precisely the same proofthe demurrer was, therefore, correctly, sustained.

It remains to enquire, whether the decision of the court, refusing to permit the plea of lunacy to be received, is such a matter as can be reviewed in this court.

It is conceded, that the court had a discretion to permit or refuse permission to the defendant below to plead over, but it is supposed, that having given his permission to plead over, his power over the subject was exhausted, and that he could not revoke the permission thus given. If this be so, it must constitute an exception to the general rule, that a judge may change, alter or revoke his judgments, at any time before the adjournment of court. No reason can be perceived, why this rule, which applies to the most solemn judgments of the court, should cease to be applicable, when applied to matters admitted to be purely discretionary. To the proper administration of justice, full discretion must be vested in the presiding judge, in many cases, to be exercised by him, to effectuate the great ends of justice. This discretion, from the nature of the thing, cannot be reviewed in an appellate court, but must be exercised by him, as the exigency of the case may demand, under the guarantee afforded against abuse, by his official oath and judicial station, in connection with the constitutional remedy against oppression and injustice.

Many cases may exist, in which it would be the duty of the presiding judge to revoke a permission which he had granted, and which he might, in the first instance, have refused; whether he acted judiciously .or improperly in the case now before us, we have not the means of determining, nor would it be proper that we should .express an opinion.

The following are cases in which this court has refused to interfere in matters purely discretionary — (Tate vs. Gilbert, 2 Porter, 386; see also Calloway vs. Dobson, 1 Brockenbrough’s Rep. 119.)

There is no error in the record, and the judgment is affirmed.


text:
    JOHNSTON vs. MORROW.
    1. To charge a plaintiff with having- marked a third person's hogs, is not actionable.
    Error to Morgan Circuit court.
    Slander — tried before Lane, J.
    The declaration charged, that defendant had said of plaintiff, “ he has got well off very fast,” (meaning an increase of plaintiff’s pecuniary means,) “ and the way to tell it is, he” (meaning plaintiff,) “has marked Hugh Morrow’s hogs,” (meaning that said plaintiff had marked said hogs with his own mark, and had feloniously converted them to his own use.) Defendant demurred to the declaration, and the court below sustained the demurrer — which was here assigned for error.

      Robinson, for plaintiff in error.
   GOLDTHWAITE, J.

The general rule applicable to this class of actions, “ that no charge upon the plaintiff, however foul, will entitle him to damages, unless it be of an offence punishable in a court of criminal jurisdiction,” — has hitherto been considered as the settled law, in this court. It was first acted on in the case of Coburn vs. Harwood, (Minor, 93,) and is recognised and confirmed in Hillhouse vs. Peck, (2 Stew. & Por. 395.) If the words which are charged in the plaintiff’s declaration, impute to him the commission of an offence, which is not punishable through means of an indictment, the case will be brought within the influence of this rule. The words alleged to have been spoken, charge the plaintiff with the commission of the offence defined by the second section of the act of eighteen hundred and eleven— (Aik. Dig. 108, s. 41.) This section of the statute, in the case of Reagh vs. Spann, (3 Stewart, 100,) was considered as giving only a civil remedy, for the penalty of twenty dollars, therein named, and that the offence was not indictable. This construction of the act is decisive of the present case, and conclusively supports the judgment of the Circuit court, which must be affirmed,


author: COLLIER, C. J. — The

text:
    JOAQUIM ANTONES ET AL., TRUSTEES OF THE CHURCH OF THE HOLY CONCEPTION, IN THE CITY OF MOBILE, vs. THE HEIRS OF DON MIGUEL ESLAVA.
    1. A plaintiff in equity, must recover upon the strength of his own title, and not upon the weakness of that of the defendant.
    2. A deed, conveying lots of land in the city of Mobile, during the period the Spanish government was entitled to, and exercised dominion over it, — “ to His Catholic Majesty, for the purpose of building thereon a parochial church and dwelling house, for the officiating priest,” where the purchase money was paid from the Royal Chests, — does not constitute His Catholic Majesty a trustee for the church, or transfer to it, in equity, a title to the lots.
    3. Whatever might be the extent of the papal authority in Old Spain, the grants of Popes Alexander VI and Julius II, to Ferdinand, made the Spanish monarchs, in effect, the head of the Catholic chureh, in their American possessions.
    4. Semble. The acts of the Intendant of West Florida,, during the time the Spanish Government was the proprietor of the country, which have the appearance of regularity, were prima facie legal.
    5. It is a well established principle, both in the civil and common law, that property may be dedicated to public or religious uses —and the dedication may be sustained, though there is no certain grantee, — it may exist in the public, and be limited only by the wants of the community at large.
    6. So, the dedication of property may be for a limited period, or during the pleasure of the party dedicating it. And if here clearly appears, that it was during the sovereign pleasure of the King of Spain, that the lots in question were held for religious purposes.
    Error to the Circuit court of Mobile, exercising chancery jurisdiction.

      On the thirteenth of February, eighteen hundred and twenty-seven, the plaintiffs in error exhibited their bill on the equity side of the Circuit court of Mobile county, against the defendants, asserting title on behalf of the ■church, to several lots in the city of Mobile.
    The plaintiffs allege, that as early as March, seventeen hundred and three, “a parish church was erected at Mobile, and a pastor regularly inducted therein, agreeably to the laws of the French Government, and the canons of the Holy Roman Catholic church; which church has continued, under successive changes of government, until the filing of their bill. This allegation, it is said by the plaintiffs, can be shown by authentic documents and registers .in their possession, as also by the charter granted by the Company of the Indies, which orders the erection of a church and parsonage-house, to possess all the incidents of a parish church and parsonage, under the then existing laws of France.
    The plaintiffs further state, that in the year seventeen hundred and ninety-two, a deed was made by the then proprietor, conveying the premises in dispute to His Catholic Majesty-, the King of Spain, in trust for the church at Mobile. A translation of this deed is set out at large in the bill, and exhibited with the defendants’ answer— so far as it is material to recite it, it is in these words: “ Which said lots we sell to His Catholic Majesty, for the purpose of building thereon a parochial church, and dwelling house for the officiating priest, together with all their rights of egress and ingress, and privileges of every kind whatsoever, which of right appertain thereto, free from all incumbrance, as may appear from the certificate of the Recorder of Mortgages, for the consideration of two hundred dollars, the receipt whereof, in cash, from the Royal chests, we do hereby acknowledge, and with which we are satisfied, hereby renouncing the proof thereof, the laws of delivery, the exception of the laws óf the non enumerata pecuniaj

    By means whereof, we give up and relinquish all the' right,-title, claim and demand whatsoever, which we and the said co-heirs had and held to the said property, and which- we renounce, yield- and transfer, to His Catholic Majesty, fer the purpose aforesaid, in order that fie may possess, sell, or alienate them, at his sovereign pleasure, by virtue of this deed, which we execute in- sign of actual delivery, whereby it may be seen, that he has acquired the possession thereof, without the necessity of any other' proof, from which we relieve him.”
    The- bill then proceeds as follows: “In' pursuance of the instrument aforesaid,-the church and parsonage-house-have been erected, and peaceable and quiet possession Of’ the same were enjoyed by the church, being the same' property on which the Catholic church now stands,, and! the United States Hotel, corner of Royal and Conti streets, until about the sixth of June, eighteen- hundred and ser-ven, or some time after that, when one Don Miguel Esla-va, pretending to have a right of and to the property de--scribed above, entered into the possession of' the same, and has kept possession of part of said property, viz., that part on- which the parsonage-house was erected, (now the United States Hotel,) and.' a-portion of the lot whereon the church was, q,nd still is, erected, west of the same, unto the limits prescribed by the conveyance aforesaid.?’' The bill then charges, that the possession of Don Miguel Eslava continued until his death, and that since that event, the premises have been, and still are, occupied by the defendants, his heirs.
    The plaintiffs further represent, by their bill, that “in consideration of the titles granted by the Catholic church in both the Indies, (of which Louisiana and the Floridas formed a part,) to the King of Spain, he obligated himself to provide for the churches, to found them, when necessary, and to maintain the clergy.” The bill then prays, that the premises may be decreed to belong to the plaintiffs, and that the defendants be compelled to account to them for the rents and profits.
    The defendants, in their answer, object, by way of 'demurrer to the bill, that the complainants have not stated how they were appointed trustees of the church of the Holy Conception, or how they became entitled to sue for the premises and rents that they seek to recover. And neither denying or admitting the period of the erection of a parish church at Mobile, and the induction of a pastor therein, as stated in the bill, they require the plaintiffs to prove the same.
    The defendants deny that the charter granted by the Company of the Indies, ordered the erection, at that point, of a parish church with a parsonage-house, to enjoy and possess all the incidents appertaining to a parish and parsonage-house, under the then existing laws of France. They insist, that that company was entirely of Spanish origin and institution, and that consequently, its actings and doings, were not approved by thfe King of France.
    The defendants further state, “ that they have understood, and believe, that a Catholic church was erected at Mobile, on, or about the-day of-, by the King of France, whilst under his dominion, but not on the same lands now claimed by the said complainants of these defendants, but in a different part of the city of Mobile.” They deny that the church and establishment, as alleged by the plaintiffs, continued under the successive governments, until the filing of their bill.
    They admit the execution of a deed of conveyance in seventeen hundred and ninety-two, but that the translation accompanying the plaintiffs’ bill is correct, they explicitly deny, yet exhibit with their answer, a translation, not materially variant, and insist that the legal effect thereof, under the Spanish government, was not to convey the lots embraced by it to the King of Spain, in trust for the Catholic church; but, on the contrary, they aver, that according to the laws, usages and customs of the Spanish government, in force at the time of the execution of the deed, the title to the lots vested in the King, for the purpose of building thereon a parochial church, and dwelling house for the officiating priest; and also that he might possess, sell or alienate them, at his sovereign pleasure.

    The defendants further answer, that they have been informed, and believe, that at the time of the execution of the deed, the Spanish law then in force, authorised any one, with the permission of the bishop, to erect a church; that he who built a new church, was bound to give to it certain landed property, out of the rent of which, the priest was to live, &c.
    That if the King of Spain, at the time he purchased the premises in dispute, through his agent, contemplated the erection thereon of a church, and house for the residence of the officiating priest, yet he never divested him-»elf of the title thereto, in favor of the church, by making any manner of donation thereof, either with or without the assent of a bishop; but to the contrary thereof, the the title of the house, whilst the residence of the officiating priest, as well as the grounds and appertenances, continued and remained in him, (the King of Spain); and on the first day of June, eighteen hundred and seven, were sold at public auction, to the highest bidder, for cash, by order of the King, through the Intendant, as his representative. That that sale was made at the instance, and with the approbation of the curate, who officiated as the regularly appointed priest of the Catholic church at Mobile; an'd Don Miguel Eslava, the ancestor of the defendants, being the highest bidder, became the purchaser of the premises, at eight hundred and five dollars, was put into the possession of the same by order of the Intendant, and continued the occupancy thereof until his death, an event which occurred in December, eighteen hundred and twenty-three, when the possession devolved, by law, upon the defendants, as his heirs.
    The defendants further answer, that their ancestor, —pursuant to the several acts of Congress, in relation to land claims south of the thirty-first degree of north latitude, and east of the island of New Orleans, — presented his claim to the property sued for, to the proper officers of the government, and that the same has been duly confirmed. But they deny that the plaintiffs, or any other person, assuming to represent the interest of the Catholic church at Mobile, did, at any time, assert any claim to the premises in dispute, before any person appointed on the part of the'United States, to adjust the same.
    On the hearing, the plaintiffs gave in evidence, a translation of the original deed of seventeen hundred and ninety-two, a copy of which accompanies their bill. They also proved by Bishop Portier, the Catholic bishop of Mobile, “ that certain books, being registers of births and marriages, kept by the rectors of the church, purporting to be a register of marriages of the parochial church of the Most Holy Conception of the city of Mobile, from the year seventeen hundred and eighty-two, till the year eighteen hundred and thirty-eight; also the book of registry of births, in the same church, from the year seventeen hundred and eighty-one, till the year eighteen hundred and thirty-eight; and that he found them in the archives of the church, eleven years ago, when he became connected with it, and that he is the proper custodian of the same. These books were produced and examined.”
    • In order to relieve the plaintiffs from making proof to the point, it was admitted by the defendants’ counsel, that it was shown by the evidence for the defendants, that the “church and parsons house were built upon the ground in controversy, and occupied as such, from a period shortly after the deed to the King, in seventeen hundred and ninety-two, until the sale thereof by the Intendant.”
    The plaintiff's also gave in evidence, a copy of certain “Articles of Government and Constitution of the congregation of the Roman Catholic church of the Holy Concep.tion in the city of Mobile, made and entered into, this twenty-first day of November, in the year of our Lord, one thousand eight hundred and twenty-two.” These articles were certified on the sixteenth day of January, A. D. eighteen hundred and thirty-eight, by the clerk of the County court of Mobile county, to have been regularly recorded in his office — but when they were recorded, is no where shown by the record. They provide for the annual appointment of five trustees, for the management of the property and temporal interests of the church, and designate five individuals, who are to act as trustees, until superseded by an election — neither one of whom corresponds in name, to either of the plaintiffs in this action. The record does not inform us whether, between the time of the formation of the articles of government, &c. and the commencement of this suit, an election of trustees was made.
    On the part of the defendants, the exhibits accompanying their answer, were given in evidence, viz. a translation of the deed of seventeen hundred and ninety-two, and the proceedings in regard to the sale of the property in question, under the authority of the Intendant of the province of West Florida — the purchase and payment for, and on account of, Don Miguel Eslava — the order for, and delivery of, possession to him. These documents show that an investigation was ordered by the Intend-ant, with a view to ascertain the expediency of a sale, and that the sale was ordered, upon the enquiry having determined the measure to be proper; they further show, that these proceedings were had at the instance, and with the approbation of, the then officiating curate.

      It was also proved, by a deposition, taken at the instance of the defendants, that the Intendant of the province, was vested with the authority of disposing of all crown lands, within his jurisdiction. And further, that the powers and privileges of the church, “ were by no-means so extensive in the province, as in other parts of the Spanish dominions. Here, it levied no titles — here, it exercised no inquisitorial powers — here, its ministers were made stipendiaries of the crown, from whose treasury they received an annual salary, and had, besides-that, no source of income, except their fees on marriages, christenings, and so forth. I add, moreover, (says the witness,) that the sale of the property in question, took place in Pensacola, during my residence there, a short time before I removed to Mobile; that it was public and notorious, and no one, to my knowledge, ever questioned the authority by which it was made, and that thereafter, and during the whole time that the Spanish government exercised authority here, a house was rented by the crown, for the residence of the curates, as I have understood from the curates themselves, from the officers in-charge of the treasury department, and from some of the owners of those houses.”
    It is needless to notice, any farther, the evidence adduced at the hearing, for quite enough of the record has-been already cited, to discover the pertinency of the opinion of the court.
    The judge of the Circuit court rendered a decree dismissing the complainants’ bill, at their costs — from which they have prosecuted a writ of error to this court.

      J A, Campbell, for plaintiffs in error.
    Stewart, contra.
   COLLIER, C. J. — The

plaintiffs admit, that they do not sue as a corporation, under the act “ to incorporate and empower religious societies of every denomination to hold real estate,” passed in 1819. It seemed to be conceded in the argument, that the powers conferred upon the corporation, under that statute, does not invest it, as such, with the right to all property, of which the Catholic church at Mobile may have been the proprietor under the Spanish government. And the only purpose proposed by the introduction of the recorded articles of government, and the names of the trustees, was to show that the church of the Holy Conception had a continuous existence.”

The plaintiffs, then, having disclaimed a corporate existence, we are to enquire whether the allegations in their bill, and the proof upon the record, show that their individual interest in the subject matter of the controversy, is such as to entitle them to be heard.

In the commencement of their bill, after setting forth their names, they style themselves “ trustees of the church of the Holy Conception in the city of Mobile.” How they became trustees, and what their powers, we are not informed. It is not admitted, in the answer, that the plaintiffs are entitled to the character they assume, but, on the contrary, the defendants protest against the assumption as unauthorised, while they insist, that the plaintiffs should have shown how they became trustees, or by what authority they litigate the several matters stated in their bill. The defendants, by questioning the sufficiency of the bill in this particular, do not relieve the plaintiffs from the necessity of showing their interest in. the property in controversy. It is immaterial what may be the rights of the church, they cannot be adjudicated at the instance of persons who discover no interest in their adjtistment. It is not enough for a plaintiff, in an ejectment or trespass to try titles, to prove that the defendant had no title, but that it is vested in á third person, disconnected with either party — the plaintiff must-go farther, and trace a title directly to himself. AS a-question of moráis, the party in possession of property belonging to another, has as good right to retain it,- as; any one else whose' title is no better': and if it were allowable, to dispossess him at. the suit of any one Who might sue, without reference to the question of right, litigation the most vexatious would ensue: the successful plaintiff might, in turn, be ejected by one having ho better title than himself, and the courts of judicature be employed in adjudging controversies, profitless in themselves; and inconclusive of rights.

It cannot have been supposed,- that the want of a direct denial by the defendants, of the plaintiffs’ interest in the controversy, dispensed with the necessity of proof to that point by the latter. True, it has been held, that-where a matter is alleged by the bill, to be peculiarly within the knowledge of the defendant, and he neglects to answer the allegation, his silence shall be construed, into ah admission of its- truth — (Thorington vs. Carson et al. 1 Porter’s R. 257) ; yet the present question is entirely dissimilar — -the' defendants are not charged, nor can they be presumed to be peculiarly conversant of the plaintiffs’ character, but the plaintiffs must know whether they are entitled to sue, or, at least, must have the proof within their own reach, by which that question may be determined. It is not only necessary for the plaintiffs to show that the defendants are answerable to the cause of complaint alleged against them, but they must also prove, that they are answerable to them.

But it is argued for the plaintiffs, that it is sufficiently shown, that they are members of the Catholic church, at Mobile, and, as such, may, in virtue of a community of interest in the property of the church, sue on behalf of themselves, and others. Without controverting the conclusion of the argument, we think the premises are not sustained by the record. The description of themselves as trustees, we have seen, does not dispense with proof of the fact. In looking over the signatures of the male members of the church, to the articles of government, we find two or three names, corresponding with the names of as many of the plaintiffs; yet, if that paper were to be regarded as evidence, for all purposes, it would not prove that any of the plaintiffs were members of the church of the “ Holy Conceptionfor it often happens, that different persons bear the same name, so as to make it unsafe to infer an identity of the person, from an identity of name. There can, indeed, be no necessity for resorting to such proof to establish the plaintiffs’ membership — 4f it really existed, it was susceptible of the clearest demonstration, either from the knowledge of witnesses, or else from the church registry, connected with such testimony.

The case of Beatty & Ritchie vs. Kurtz et al. (2 Peters, 566,) on the point we are considering, is very dissimilar from the present. The court there say, that the only difficulty is, whether the plaintiffs have shown in themselves, a sufficient authority, since it is not evidenced by any formal vote or writing. If it were necessary to decide the case on this point, we should incline to think, that under all the circumstances, it might be fairly presumed. But it is not necessary to decide the case on this point; because, we think it one of those cases, in which certain persons, belonging to a voluntary society, and having a common interest, may sue in behalf of themselves, and others, having the like interest, as part of the same society; for purposes common to all, and beneficial to all.”

In that case, it was shown by the evidence, that the Lutherans, in Georgetown, (the place where the property in dispute was situated,) had been in possession of the lot, though they never had been incorporated: that the congregation “ consisted of a voluntary society, acting in its general arrangement, by committees and trustees, chosen from time to time, by the Lutherans belonging to it. There do not appear to have been any formal records kept of their proceedings; and there have been periods of considerable intermission in their appointment and action. There is no other proof that the plaintiffs are a committee of the congregation, than what arises from the statement of witnesses, that they were so chosen by a meeting of Lutherans, and that their appointment has always been acquiesced in by the Lutherans, and they have assumed to act for them, without any question Df their authority: that they are themselves Lutherans, living in Georgetown, and forming a part of the voluntary society, is not disputed.” These circumstances, we think, very clearly show the interest of the persons undertaking to represent the church — their appointment as trustees, and the recognition of their acts, by the Lutherans. They court were, then, right, in saying, if it were necessary, they would be inclined to presume the authority of the “ plaintiffs ” to sue. But, in the case at bar, there is no proof, either direct or indirect, that the plaintiffs are trustees of the Catholic church at Mobile, that they are members of the same, or have an interest in the decision of the matters stated in their bill; so that the decree of the Circuit court, for the defect of proof in this particular, would seem to us to be defensible in law.

We might here close this opinion, but as it may be more satisfactory to the parties, to learn our views of the law upon the substantial merits of the case, we will examine the pretensions of theplaintifs still further; and we will enquire,

First — Had the Catholic church at Mobile, in eighteen hundred and seven, or at any time previously, an equitable title to the lots conveyed by the deed pf seventeen hundred and ninety-two, to the King of Spain?

Second — Was there such a dedication of the lots to the use of the church, as to invalidate the' sale made by the Jntendant of the province, in eighteen hundred and seven?

1. We propose to consider this question, in reference to the principles which govern analagous cases in equity, as these are not materially variant, so far as the interest of the church is concerned, from the rules of the civil law, in force, to some extent, at Mobile, during the time the Spanish authorities exercised the government of the province.

From the deed, we learn that the King of Spain, through the Intendant, &c. of the province of Louisiana, purchased the property embraced by it, and paid for the same “ in cash, from the Royal chests,” and received a conveyance therefor, “ for the purpose of building thereon a parochial church, and dwelling house for the officiating priest.” If the King was bound, in moral duty, to have thus provided for the church, he might, perhaps, have been regarded as a trustee in the purchase; but none of the citations from the Partidas, which have been made by the plaintiffs’ counsel, or the evidence in the record, show any such duty to have been rested upon the crown of Spain.

Courts of equity have exclusive jurisdiction over matters of trust; and will compel their performance, if a trustee is perverse or faithless — (2 Story’s Eq. 228, 229.) Trusts are either express or implied: the former are created by the direct and positive acts of the parties, by writing, or deed, or will. The language employed, in such cases, need not point out the very nature, character and limitations of the trust, in direct terms, ipsis verbis; if the intention to create it, can be fairly collected from the face of the instrument, it is sufficient; and the trust can be drawn, as it were, ex visceribus verborum.

The words used in the deed, would indicate that it was contemplated by the Intendant, at the time of the purchase, to appropriate the lots to the purposes of the church, yQt there is nothing in the deed, which would oblige him thus to use them; and there is no authority for implying a covenant to hold them for the benefit of the church: such a covenant might well be implied, if the purchase had been made with the funds of the church —but clearly not, where the “ Royal chests,” alone, had contributed the means of payment. This conclusion results from certain analagous rules, which apply to implied trusts — thus, if a man buys land in the name of another, and pays the consideration money, the land will generally be held by the grantee, in trust -for the person who paid the consideration — (2 Story’s Eq. 443, 444, 445.) There are, however, exceptions to this rule; as, if a parent purchase in the name of a son, the purchase will 'prvma facie be presumed to have been intended as an advancement, so as to rebut the presumption of á resulting trust for the parent — (2 Story’s Eq. 445, 446.)

So, also, if an agent or trustee, authorised to purchase lands for another, should purchase lands with the money of his principal, or cestui que trust, and take a conveyance, in his own name, a court of equity would, in such a case, deem the property to be held as a resulting trust, for the person beneficially entitled — (2 Story’s Eq. 456, 457.)

Independent, however, of the absence of words creating an express trust, or authorising its implication, the deed itself negatives the idea, that it was intended to create a trust in favor of the church. The lots were conveyed to His Catholic Majesty, with the express stipulation, that he might “possess, sell, or alienate them, at his sovereign pleasure.” How could this be done, if immediately upon the consummation of the purchase, the King became a mere trustee, and the church the beneficiary %

But, if the pretensions of the plaintiffs were sustained by the laws which were applicable to the church in Old Spain, they could not be recognised here. The control accorded to the Spanish monarchs, over the clergy and church in America, are utterly opposed to the claim set up by the plaintiffs. Notwithstanding the veneration which the Spaniards have manifested for the TIoly Nee, the vigilant and jealous policy of Ferdinand, early prompted him to take precautions against the introduction of the papal dominion in the New World. For that purpose, he obtained from Alexander YI, a grant to the crown, of the tithes, in all the newly discovered countries, on condition that he would provide for the religious-instruction of the natives. Soon after, Julius XI conferred on him, and his successors, the right of patronage, and the absolute disposal of all ecclesiastical benefices there-The Pontiffs, unacquainted with the value of what Ferdinand demanded, bestowed these donations with an inconsiderate liberality, which their successors have often lamented, and wished to re-call. In consequence of those grants, the Spanish monarchs became, in effect, the heads of the Catholic church, in their American possessions — In them, the administration of its revenues was-vested — their nomination of persons to supply vacant benefices, was instantly supplied by the Pope — thus, in all-Spanish America, authority, of every species, centred in the crown — there, no collision was known between spiritual and temporal jurisdiction: the King is the only superior — life name was alone heard of, Without looking to a dependence upon any foreign power. Papal bulls were not recognised as of any force in America, until they had been examined and approved Of, by the Royal Council of the Indies; and if any bull was Surreptitiously introduced and circulated in America, Without obtaining that approbation, ecclesiastics were required not.only to prevent,it from taking effect, but to seize all the copies of it, and transmit them to the Council of the Indies —(Robinson’s Am. 360,362; Prescott’s Ferdinand and Isabella, 492, 493.) Thus limited was the papal jurisdiction in the Spanish possessions in America.

If it were material, we would presume, that the In-tendant of the province of West Florida possessed the power necessary to have authorised the enquiry and decree, for a sale of the parsonage and church lots, on the ground, that he was a public officer of his government, and the act was seemingly regular — (United States vs. Arredondo and others, 6 Peters’ Rep. 727, 728; New Orleans vs. The U. States, 10 Peters’ Rep’. 727.)

"2. That property may be dedicated to public or religious uses, is well established, both in the civil and common law — (The Town of Pawlet vs. Clark, 9 Cranch, 292; Beatty & Ritchie vs. Kurtz et al. 2 Peters, 583; City of Cincinnati vs. The Lessee of White, 6 Peters, 435; New Orleans vs. The United States, 10 Peters, 712; Barclay et al. vs. Howell’s Lessee, 6 Peters, 498.) In order to sustain a dedication of property, it is not necessary that there should be a certain grantee, to whose use it is made, nor is it essential that the right of use should be vested in a corporate body; it may exist in the public, and have no other limitations than the wants of the community at large. In the case of urban property, the dedication of ground to the use of streets, commons, and for charitable and religious purposes, may be shown by a plat,- or plan of survey, by maps, and by use appropri¿ ate to the object for which it was originally destined.In the case before us, it cannot be pretended, that these in dicia combine to divest the title of the King of Spain, and to vest the right of use in the church.- The plaintiffs insist, that the dedication is sufficiently shown by the erection of the church and parson’s house on the lots, and their occupation, for thirteen or fourteen years.- The law do'es not prescribe an exact period, beyond which the original proprietor shall not withdraw property from a religious- or charitable use, to which he has destined it,- or after which the presumption in favor of its dedication shall be conclusive. True, the facts in the record, unexplained by other proof, afford a presumption-,. that the-lots in dispute had been appropriated to the purposes of religion,- yet they are entirely outweighed by the testimony on the part of the defendants.- The petition of the curate to the Inten-dant of the province, asking that the parsonage be repaired, or if that be judged inexpedient, that it be' sold; the evidence, in the deposition of the defendants’ witness, that the crown rented a house for the residence of the curate, &c.-; the Intendant’s- decree, made upon a formal examination, directing a sale; the acquiescence, at the time, and for near twenty years thereafter, in the regularity of the decree, and the proceedings under it, — all serve to show, that the property was only dedicated to the uses of the church, during the sovereign pleasure of the King.

The case of Beatty & Ritchie vs. Kurtz et al. (2 Peters’ Rep. 566,) is unlike the present. In that case, it appeared' that the lot had been marked in the original plan of an addition to Georgetown, “ for the Lutheran church,” and been used by the German Lutherans of the town, from a period immediately after its dedication, and upwards of fifty years, as a place of burial; that they erected on it a school-house, which was occasionally used as a church, but which had gone to decay, and no church had been since re-built. The Lutherans, however, still exercised acts of ownership, for the protection of the property, and contemplated, when practicable, the erection of a church thereupon. The original proprietor always acquiesced in their possession, and after his death, his son and heir declared his readiness to perfect, their title. Here was a clear case of dedication, as shown by a “map,” prepared before the sale of the lots, and long and uninterrupted use, coupled with the silent, as well as declared acquiescence ol all persons interested — which evidences do not exist in the present case. And in the cases cited from 6 and 10 Peters, the evidence to show a dedication is not less satisfactory, than in the case of the Lutheran church.

Other questions, interesting in themselves, have been discussed at the bar, but their decision is rendered unnecessary, by the view already taken of the case — and our conclusion is, that the decree of the Circuit court must be affirmed.


text:
    M’VAY vs. BLOODGOOD.
    1. The proceeds of the sale of property, conveyed by deed of trust, must be applied as provided for in the deed.
    2. Therefore, where property was conveyed by deed of trust, to secure the payment of notes falling due at three, six, nine and twelve months, as they severally fell due, the property being insufficient to pay all the notes, those first falling due, were entitled to a • preference; and this right attached to them in the hands of an assignee.
    Error to Mobile Circuit court.
    Assumpsit, for money had and received — tried.by Harris, J.

      Dunn, for plaintiff in error.

      J. A. Campbell, contra.
   ORMOND, J.

This was a case agreed. The material facts are, that one George W. Sinclair, being indebted to one Thomas R. Bolling, in the sum of eight thousand dollars, executed four several promissory notes, for two thousand dollars each, payable at three; six, nine and twelve months after date; and to secure their payment, conveyed to Abner S. Lipscomb, certain personal property, in trust, to secure to Bolling the payment of the said promissory notes.

The first of said notes was paid: the second note was by Bolling endorsed to one Fearn, for a valuable consideration, who endorsed it to the defendant in error; and afterwards, the remaining two notes were by Bolling transferred, to the plaintiff in error, between whom and Balling, au instrument was then executed, by which all the interest of Bolling in the trust, and executed to secure the payment of the said notes, was transferred to the plaintiff in error.

The trustee sold the property conveyed by the deed of trust, for twelve hundred dollars, and paid over the motley to the plaintiff in error.

The court below determined,-that Bloodgood, the assignor of the second note, was entitled to the fund; and of that opinion is-this court; By the express stipulation of the deed of trust, the property conveyed by the deed of trust, was liable to be sold for the payment of the notes, a§ they severally fell due. There was, therefore, a priority of right to the avails of the property in the holder of the notes due at three months after date, over the plaintiff, whose notes did not fall due until nine and twelve months. This is conclusively shewn by the fact, that on default of payment, the property might have been advertised and sold under the deed, before the other notes were due: this clearly establishes the prior right of the defendant in error; and this right, which existed against Bolling, he could not defeat by the transfer to the plaintiff in error, who can be in no better condition than Bolling. There is iu>,fraud alleged against the defendant in error, and the deed of trust, which recited that other notes were in existence, for which the property was hound, was sufficient notice, at least, to put the plaintiff on enquiry.

The precise question here decided, was thus determined in the case of Gwathmeys vs. Ragland, 1 Randolph, 466; see also 1 Hopkins’ Chancery Kep. 569, and 5 Johnson’s Chan. 241, Clover vs. Dickinson.

Let the judgment be affirmed.


text:
    ASHBURNE v. GIBSON’S ADM’R.
    1. A prosecution for bastardy may be compromised, and the compromise will be a sufficient consideration to sustain an action on a promissory note, and is governed by the same rules applicable to other cases of contract.
    Error to Madison County court.
    Assumpsit on a promissory note. Verdict and judgment for plaintiff below.
    This was an action on a promissory note, given to the party injured, pursuant to an agreement for compromise . ing a prosecution for bastardy: and from the bill of exceptions, it appeared, that on the trial of the cause, it was proved, that the prosecution was carried on to conviction against plaintiff in error after the compromise, by a third person, but in carrying on the prosecution, the payee of the note, according to her agreement, had no agency, and died before a conviction was had. Plaintiff in error resisted a recovery on the note, on the ground, that the consideration was illegal, and that, in consequence of the conviction, there was a failure of consideration ; but the court held the consideration to be legal, "and charged the jury, that if the prosecution was carried fin, without the participation of the payee of the note, after its execution, the consideration had not failed — all of which was now assigned for error.
    'McClung, for plaintiff in error.
    Robinson, contra.
   GOLDTHWAITE, J.

It is very properly admitted, by the counsel for the plaintiff in error, that he cannot succeed on the first point presented by this case, unless the decision of this court, in the case of Robinson vs. Cren-shaw, (2 Stew. <fc Por. 276,) shall be oyerruled, as the precise question now raised, was then determined.— Whatever doubts wp might entertain, if the question was res integra., we feel constrained to abide by that decision} and are not disposed to re-consider it.

As a compromise of a prosecution of this description, js a sufficient consideration, in law, to uphold a promissory note, the other question, as to the failure of its consideration, must be governed by the same rules as are applicable to other cases of contract.

The contract between these parties was reduced to writing, and being before the County court, its duty was to determine and pronounce on the legal effect, which was to be ascertained from the plain and obvious meaning of the terms used. It cannot be denied, that if the plaintiff’s intestate had stipulated, as the consideration of the notes, that the bastardy suit should be dismissed, or that no new suit should be commenced or prosecuted, that a failure of consideration would have ensued, if the suit was not dismissed, or was subsequently renewed; but she stipulates for nothing of this description; she does not undertake to be active in causing the prosecution to cease, and the utmost effect which can be given to the terms of the contract, so far as she was concerned, is, that she should remain passive. It cannot be disputed, under the decision of the caise of Robinson vs. Crenshaw, that if this compromise had been made known to the County court, on the trial of the bastardy suit, it would have constituted a material feature in that case, and ought, and doubtless would have had its proper weight, on the discretion of the court. There being no stipulations on the part of the intestate, to cause the prosecution to cease, and it having been shewn, that she had no agency in conducting it, subsequent to the execution of the notes, there were no facts in evidence before the jury, from which a violation of her contract could be inferred ; and the County court was correct, in deciding, that the prosecution of the suit, under the circumstances disclosed, did not cause a failure of the consideration of the note sued on.

There is no error in the record, and the judgment is affirmed.