author: By Mr. Chief-Justice Saffold :

text:
    M’ELYEA versus HAYTER.
    The act 01 Congress of 29th May, 1830, granting pre-emptions to settlers on public lapels, having expressly inhibited all assignments and transfers of the right of pre-emption, prior to the issuance of the patent; a power, executed with authority to convey land entered under that act, when the patent should issue, was held to be but a circuitous evasion of the act of Congress, and consequently, void, and that, a title obtained under such power, was illegal and inoperative.

      Semble — that the principle would not necessarily be the same, if, a bond, conditioned to make titles to the land, had been executed, and ratified bj' an exeejt. tion of the conveyance, after the patent had issued; the latter would have consti. ted a new contract — although the penalty of the bond itself, or damages for its breach, might not have been recoverable.
    This was ail action of trespass, to try title, brought by Hayter, in the Circuit Court of Jackson. The land in controvert^-, had been entered by McElyea, under a,pre-emption law of Congress, passed on the 29th May, 1880, Previous to the issuance of the patent to McEfyca, ho executed a power of attorney to one Campbell, authorising him to convey the land to Hay-ter, when the patent should issue. Campbell, in pursuance of the power, executed the conveyance for the land, and this action was brought to recover possession. McElyea-offered, on the trial below, to show, that he had verbally revoked the power to Campbell; the Court, however, rejected testimony of this fact, and a judgment ivas rendered in favor of Hayter.
    This case was brought here, by bill of exceptions.

      McCltjng and Shortridge, for Plaintiff
    Contended, that there was no such contract as wonld entitle the plaintiff below, to an action to try title. The case is a very plain one. Can it be pretended, ¿hat to bring this case within the act of Congress, we are to spell out, and show by -word and letter, that the paper was a transfer ? Surely not. If the law has any meaning, we must be governed by its intent, its reason and spirit, This action is in the nature of an action of ejectment. In that action it is a well known principle, that the plaintiff must recover on the strength of his own title, and not on the weakness of that of his adversary. This principle applies here. The plaintiff must show a clear chain of title, valid and legal in every part, or he cannot recover. Here, there is a part of the chain of title that is broken. Campbell could confer no title but what he had received. He had received no transfer of title ; or whatever pretended title he had, it was received at a time when no transfer whatever was permitted by law'. If there was no legal’transfer then, there was nothing which could be carried out and perfected afterwards. But, it is said, that if the person entitled to pre-emption, had given a bond for title, a deed of conveyance given in pursuance of such bond, would have been good; and it is contended, that that is a similar case to this — that the title made by the agent, authorised by power of atorney, is as good as if made by the party himself. We say no : There, there would have been consent; here, there was no consent, but the deed was made against the consent of the party entitled to pre-emption. Can an act which conferred nothing, become something af-terwards by a subsequent event, the patentee objecting all the while ? All presumption of subsequent assent, is rebutted by the fact, that the patentee opposed the deed of assignment. Congress, in prohibiting a transfer, intended to prohibit any and every means of passing the title. There could be no fiction which would authorise a title to be passed from one, whom the law had said should not be permitted to part with it, This would be but a subterfuge to evade the law. There are fictions of law permitted; such are those in ejectment, and in fine and recovery ; but they are permitted only to support, and not to overturn the great principles of law. But to allow the imaginary fictitious state of the title here supposed, would be to overthrow the grand object which Congress had in view.
    Suppose both parties to have been equally culpable in attempting this mode, to make a sale interdicted by law, who stands in the best situation? Certainly, the possessor. In pari delicto melior est conditio possidentis. '

    If this land had been given up in pursuance of the deed, the case might have been different; but the defendant below' being' in possession, the plaintiff had clearly no right to recover.
    S. Parsons, corara:

    The act of Congress which declares void all transfers and assignments made pri- or to the issuing of the patent, is in restraint of freedom of alienation. It should, therefore, be construed with strictness. Let it be so construed, and it cannot extend to this case. The power of attorney was not a transfer ; no transfer was made until after the issuance of the patent. If the party entitled to the preemption had given a bond before the issuance of the patent, and a deed afterwards, in pursuance of that bond, whatever might be said of the bond, the deed would surely be good. That case is, in principle, like the present. Here, the conveyance was made by one having received authority to convey; it is the same as if the conveyance had been made by the party himself.
   By Mr. Chief-Justice Saffold :

The action is trespass, to try titles. The suit was instituted in the Circuit Court of Jackson, by Hay ter, against the plaintiff in error, to recover possession of a half quarter section of land, in the district of land subject to sale at Huntsville: also, damáges for the detention. A recovery was had in favor of the plaintiff below, according to the object of the suit. On the trial McElyea excepted to the evidence offered against him, but his objections were overruled, and the evidence was admitted.

This is the cause now assigned for error.

Ii appears that the land in question was entered by McElyea, under the act of Congress, passed on the 29th May, 1830, entitled “An act to grant pre-emption rights to settlers on the public lands ;M that the patent issued to him on the 1st of June, 1831, in the usual form. It also appears in evidence that previous to the latter date, in September, 1830, McElyea had executed his power of attorney to one William H. Campbell, authorising him in the name of the principal, to execute a deed of conveyance to Hayter for the land in question, so soon as the patent should be obtained for the same. The evidence discloses the further fact, that subsequent to the date of the patent, in June 1832, the deed of conveyance was executed pursuant to the power. It is also shewn, that McElyea offered proof on the trial, that previous to the execution of the deed he verbally revoked the power of attorne3r, forbidding Campbell to execute the conveyance; which proof the Court rejected. All these documents appear to have been legally executed and recorded; except so far as relates to the capacity of the parties to contract concerning the subject matter, at the time of contracting.

The act of Congress referred to, under which this entry was made, after granting the right, and prescribing the mode by which the settlers could avail themselves of its provisions, declares “ that- all assignments and transfers of the right of pre-emption, given by this act, prior to the issuance of the patents, shall be null and void." This inhibition is peremptory in its terms. The policy of the restriction, unquestionably was to protect the objects of the statute from the imposition or oppression of speculators or capitalists. The circumstances which alone could confer this right of pre-emption on the settlers, their occupancy and cultivation of the public lands, pro-supposed them to have been indigent, and within the grasp of money holders. The right was about to be vested, without any previous negociation on the part of those who were intended to be benefited by it, when it might well have been apprehended, as doubtless it was, that many, in remote parts of the Union, would for some time remain ignorant of their rights, or of the requisites to establish them; and would not therefore duly appreciate them. The presumption also was well’ warranted, that many might, previous to the passage of the act, have assigned or transferred the right, while it remained merely in expectancy; and that by these means, the actual settlers might be deprived of the intended bounty. Hence it was, that the government, while granting the right of pre-emption, absolutely interdicted the assignment and transfer of it, prior to the issuance of the patent, by declaring all such assignments and transfers “ null and void.”

Now, does not the power of attorney clearly imply a contract, assigning and transferring the right of pre-eruption in this case, at the time-of its execution, which was long prior to the issuance of the patent T It was also previous to an act of 1832, supplementary to the former act, which removed the restraint, by providing that after that time, all persons who had. availed themselves of the right of pre-emption under the former act, might assign and transfer their certificates of purchase or final receipts; and that the patents might issue for the lands in the name of such signee. At the date of this latter act, Congress appears to have acted on the. presumption, that the danger of injustice or oppression contemplated by the former, had ceased ; that sufficient time had elapsed for all persons entitled to pre-emptions to have become informed of their rights, and to have placed them beyond the reach of injurious speculation. It is perfectly clear that one holding a certificate, or final receipt, for a pre-emption right of this description, under a transfer or assignment, executed prior to the date of the latter act of Congress, could not have obtained the patent in his own name — that he would not, bylaw, have been entitled to it.

Had this been only a power constituting Campbell the general agent of McElyea, to transact his business in his absence; and among other things, to convey and assign, or transfer his lands, such instrument would not have furnished internal evidence of a prior contract for the assignment or transfer of any particular article. But, in this case, the object is special and definite — that Campbell should, for McElyea, and in his name, alien and confirm by deed, to Hay-ter individually, this particular tract of land; from which, the inference is irresistible; that a contract then existed for the “ assignment and transfer” of the same, between these persons, such as the act of Congress had deolared should he null and void. The principle is not necessarily the same, as, if instead of this power, a bond for titles had been executed at the same time, and McElyea had afterwards, when in possession of the patent, executed the deed pursuant to the previous void agreement, In this latter case, the subsequent execution of the conveyance would have constituted a new contract, when there was no restriction against it. But if suit were brought on such bond to recover the penalty, or damages, for the breach, it is clear that no such recovery could be had, because of the illegality of the contract, with reference to the subject matter, at the time when made. Though it is true, McElyea could have legally revoked this power, or he could have adopted and sanctioned it, after being authorised to alien the land; it does not appear that he did either; and viewing it as a void or voidable instrument, he is not concluded by it, unless it can be inferred, that he afterwards ■adopted and ratified it; of which, however, there is no evidence ; on the contrary, it appears, he offered evidence of a verbal revocation, which the Court rejected. I do not mean to say, that a parol revocation could avoid a- valid power, executed by deed ; but as this power was insufficient without a subsequent approval, adoption, or ratification, we are fully authorized to assume the fact, from the rejection of this evidence, and the absence of any other, that there was none such.

The case of Armstrong vs. Toler, is an authority on the principle involved in this case. It was there held, that where a contract grows immediately out of, and is connected with, an illegal or immoral act, a court of justice will not lend its aid to enforce it ; also, that if a contract be, in part only, connected with the illegal consideration, and grows immediately out of it, though it he in fact a new contract, it is equally tainted hy it.

Here it is fully evident, that the circuitous mode adopted to effect this assignment and transfer, was intended as an evasion of the prohibitory act of Congress ; therefore, the title thus acquired, must be pronounced null and void; and, the judgment below must be reversed, and the cause remanded, if desired; by the plaintiff below.

       11Wheat.258


source: Caselaw Access Project

author: By Mr. Justice Hitchcock :'

license: Public Domain

text:
    TURK versus SMITH & CO.
    The judgment of an inferior Court, on a matter submitted for its inspection,, will not be reviewed, unless a bill of exceptions, making that matter part of‘ the case, and bringing it to. the view of the appellate Court, has been regularly taken-
    In the Circuit Court of Jackson, a proceeding by' scire facias against bail, was instituted by Smith & Co, against the plaintiff in error,. Turk.
    The plea was nal tiel record — on which, after an examination of the record, in the original judgment, the-Court below, decided in favor of its sufficiency, and judgment was regularly entered for the plaintiffs be-' low.
    The defendant, by writ of error, brought the case-into this Court, alleging a variance between the scire facias, and the record of judgment on which the scire-facias was founded: but no bill of exceptions to the-judgment of the Court below was taken, either setting out the record, or showing its imperfections and variance.

      S. Parsons, for Plaintiffs.
    Hopkins, contra■

    Ala. Reg. 289 — Aik. Dig. 61, $ Sr — 52, § 12 — 53, § 16.
   By Mr. Justice Hitchcock :'

This is a judgment on a scire facias, against bail. The defendant craved oyer of the bail bond; and pleaded ‘mil lid record, and that the bond is “not such as is required by law.”' Judgment was rendered in the Circuit Court of Jackson county, for the plaintiffs below, and tos case has been brought hero by writ- of error.

Various assignments have been made here, to show a variance between the sci. fa. and the record of the judgment in the original suit, upon which the sci. fa. is predicated — 'none of which can be noticed, as that record is not before this Court. On the plea of mil tiel record, the Judge below inspects the record, and gives judgment as - to him may seem right; and to bring any question upon his judgment here, there must be a bill of exceptions, to make the record a part of the proceedings of the caso. That net having then done, the Court here, cannot look at that record.

The second plea, as to the sufficiency of the bond, can, if viewed at all, be considered only in the light of a demurrer to the bond. The Court has looked 'into it with that view.

Our statute requires the sheriff, in all cases requiring bail, to take a bond in double the amount of the debt sued for, payable to himself, which he is required to assign to the plaintiff. There is no form required by statute, but all bail is declared to be special bail, and is to be proceeded against by sci. fa. after a return of, the body not found, on a capias.

This bond describes the suit, and sets out a condition, substantially showing what the defendant would be liable for — which is, for the appearance of the defendant in the original suit, at the return term of the writ, “ there to do what may be by law required of him, and not to depart the Court without the leave of the Court — if só, tobe void, and not else.’-'

The Court can discover no defect in this bond; and the judgment must be affirmed.


author: By Mr. Justice Hitchcock :

text:
    WYATT versus AYRES AND TARRANT.
    Where one falsely and fraudulently representing himself to be the agent of others, prosecuted a variety of legal proceedings against A and T, and thereby induced them to execute their note, as a compromise, — held,
    That this was the case of a fraud, growing directly out of an immoral act, con. nected with, and depending upon it.: and that a plea, alleging these facts, was a good and available defence to an action, brought to recover the amount of the note.
    This was an action of debt, brought? in the name of Wyatt, against the defendants, in the Circuit Court of Jefferson.
    The defendants filed their plea, setting out, in substance, that one Thompson, had artfully induced the defendants to execute the note sued on, as.a compromise of certain motions which he was prosecuting against them, by falsely and fraudulently representing himself to be the agent of the plaintiffs in those motions.
    A demurrer to the plea, was overruled by the Court below, and that decision was assigned to this Court as error.
    Peck for Plaintiff.
    Do not the matters set forth in the plea, disclose a sufficient consideration to support the note ? If it be contended that the compromise of the motions was the inducement to the giving of the note, then, whether Thompson was or not, the legal-agent of the plaintiffs in those motions, is immaterial. The actual compromise, was a present benefit to the defendants, and therefore a consideration. Powell on Con, 346 — Ripon v. Norton, Cro, Eliz. 881.
    The plea does not charge that any fraud by Thompson induced them to make the note payable to the plaintiff. It says, Thompson artfully induced them, without disclosing what arts were used. In the first place, T deny that artfulness amounts to fraud: falsehood must enter into and form a component part of every fraud. A party may act artfully, or what is synonymous, skilfully, without suppressing the truth, or suggésting a falsehood. But, if it be determined that artfulness possesses all the evil qualities of a fraud, then, I contend, the artful conduct should have been specifically charged — that the Court might have determined whether it amounted to a fraud ; and also, that the plaintiff might have traversed it by a replication. — -The Huntsville Bank v. Hill, 1 Stewt. 218.
    The plea does not aver that Thompson was, or pretended to be, acting as the agent of the plaintiff, Wyatt. The plaintiff is in no wise, charged to have participated in the supposed fraud, or even to have had any knowledge of it. The fraud of a third person cannot be plead against the plaintiff, without connecting him either directly or indirectly, with its perpetration. ■ The plea is to be taken most strongly in its construction, against the defendants. The plea, therefore, not charging the plaintiff with any participation in the fraud, the Court will pronounce him innocent. — Chit, on PI. 521.
    Again — The promise contained in the note is un--connected with' the supposed fraud, practised by Thompson on 'the defendant: therefore, it is not tainted by it. The making the note was a subsequent voluntary contract with the plaintiff, and distinct from the one with Thompson to compromise the motions. Armstrong vs. Toler, 11 Wheat. 258, 272, 273— Tachney vs. Reynolds, 4 Burr. 2069 — 3 Term R. 418.
   By Mr. Justice Hitchcock :

This is an action brought on a note, under seal, dated 23d April, 1830, payable 25th December following, for one hundred dollars, given by the defendants, payable to the plaintiff. The defendants pleaded, that the writing obligatory sued on, was obtained from them by covin, collusion, and misrepresentation, by one James Thompson, in this — that the said James Thompson, before the making of the said instrument, had instituted and was prosecuting a variety of motions in Jefferson Circuit Court, against the defendants and their securities, who had been sheriffs of said county, for failing to return, according to law, a variety of executions, which had issued upon judgments in said Court, and which had beep, placed in their hands to execute and return, according to law. The plea sets out the motions, shewing a number of cases between different persons. It then states, “ that the said Thompson, by falsely and fraudulently representing to the said Ayres, that he, the said Thompson, was the lawful agent of the said plaintiffs in said motions, and was duly authorised to institute the same, falsely and fraudulently induced the defendants, upon a compromise of said motions, to execute the said instrument, when in truth and in fact, the said Thompson, at the time of the institution of said motions, and at the time of tho making of the said compromise, and the execution of the said instrument, was not the lawful agent of the plaintiffs in the motions, and had never received any authority from them to institute, prosecute, or compromise the same. The plea farther avers, that with a view further to deceive, defraud, and injure the defendants, the said James Thompson artfully solicited and induced the defendants to execute the said instrument, when he, the said James Thompson, well knew that the plaintiff had no interest in the same, and when in fact, he had no interest in the same, or in any part of the motions which had been instituted, and were pending.”

To this pica, there is a general demurrer, which was overruled, and the plaintiff has brought this case here upon writ of error; and his counsel insist that the plea is bad — because,

1. It shews a consideration for the note, to wit, the compromise of the motions, which was. a present benefit.

2. It says, the plaintiff artfully induced them to give the note to Wyatt, without describing in what that act consisted; that fraud implies falsehood, and there may bo art without falsehood: that art may mean ingenuity and skill, and is consistent with truth. Fraud is a question of law. The facts must be stated to enable the Court to decide, whether it amounts to fraud.

3. The plea docs not charge that Thompson acted as the agent of Wyatt, and Wyatt is not charged as participating in the fraud.

4. The promise contained in the note, is unconnected with the fraud, if any, and therefore, is not tainted with it. The making of the note was subsequent -to the contract for the compromise, and therefore not affected by it, supposing it to exist.

5. The plea does not directly charge that the note was executed in consequence of the misrepresentations ; and for aught that is alleged, the defendants may have been fully apprised of the falsehood of Thompson, and they may have chosen to accept of such compromise, as he could make; if so, though his representations were false, yet, the defendants may not have been deceived.

Both, the counsel for the plaintiff and defendants, have argued this case upon the authority of the case of Armstrong vs. Toler; and both appear willing to rest it upon the principles of that case.

The principle stated in that case, is, “ that where a contract grows directly out of an illegal or immoral act, and is directly connected with it, the contract is void; but, that where the contract, though it may be intimately connected with an illegal or immoral act, yet if there be a distinct consideration, however closely connected Avith the act, yet the contract shall be sustained.”

Noav, here, the plea directly charges, that Thompson had no authority to make the motions; that he falsely represented that he had; that having falsely represented that he had, he fraudulently induced the compromise; that the consideration of the note was the compromise; and that he artfully induced and solicited the making of the note to Wyatt,. when he knew that Wyatt had no interest in the Motions, and that, in fact, he had no interest.

If these facts do not make out a case of a contract, growing directly out of an immoral act; connected with it, and directly depending upon it, it would be difficult to say what would.

Swindling, is defined tobe, “ cheating and defrauding grossly, with deliberate artifice.” The fraud commenced here, by the institution of the motions, and was continued by falsehood, until it Avas consummated, by procuring the note ; and the AAdiole transaction was, both illegal and immoral. The demurrer admits the truth of the plea, and all legal and fair inferences to be drawn from it; and it is not con--ceived that it is obnoxious to any one of the positions which have been insisted on by the plaintiff’s counsel,

The judgment must be affirmed.

       11 Wheat 258


text:
    NABORS versus NABORS.
    Willie il irrát-d entry or statement of the name of a case, and of the counsel pro* secuting and defending it, not shewn by whom made, ("not being such an en» try of appearance as is required by the rules of Court,) or the giving of a re-plevy bond, (in an action of detinue,) or the filing of a plea in abatement to the writ i are not, in either case, such an appearance as will waive the right of an objection to an abateable defeciin the writ: Yet, aplea to such defect, to be available, must appear to have been submitted at the proper time, in the proper place, and in the mode prescribed by the statute >
    This action, being detinue, was instituted in the Circuit Court of Shelby, by the defendant in error, to recover possession of certain slaves.
    An objection, by plea, was made to the writ, that it was returnable to a day in February, when, by law, it should have been to March. The Court below, rejected the plea, and a writ of error was taken to this Court, where the defect in the return of the writ, was insisted on, as error.
    The record showed the statement of an entry of the title of the cause, the nature of the action, and the names of prosecuting and defending counsel. It also disclosed, that the defendant had replevied the slaves, and given the usual bond required in such cases.
    Moody and Stewart, for Plaintiff in error
    Contended, that the writ was returnable to an improper day; it required the appearance of the party at a time when there was no Court. The question arises, was the writ good ? It required that, which there was no legal authority for requiring. No obedience to it would have been of any avail: it was, therefore, an unauthorised and illegal writ. But the defendant below, gave bond, according to law, that he might retain the possession of his property; and it may be said that this was a waiver of the error in the writ. He gave bond under coercion: he was bound to give bond. This, then, could be no waiver of any right; for a waiver must always be voluntary. It may also be contended, that the entry of the name of Mr. Mor-áis on the docket, as attorney for the defendant, was a waiver of the error. This was no appearance, in the legal sense of the term. The docket is no part of the record. A rule has been adopted by this Court, that a book shall be kept for entering appearances, in the Circuit Courts, and the attorney shall state for whom he appears, and the date of his appearance. No such appearance seems to have been entered in this case; and yet, if such appearance- had been entered, it is not admitted that it would have been any waiver of the error in the writ. The party appears for his own defence — not on the merits, but against the illegal prosecution : he appears, not to enter into the question of property, but to shew that he has no right to be called on to answer under the circumstances of the case. Shall a party be entrapped by conformity to the rule ?
    At a subsequent term, a plea in abatement was offered, setting forth the error of the writ; but it was rejected by the Court. The offering of this plea cannot be a waiver of the required notice. An appearance to file such a plea as this, is no appearance to bind the party, otherwise no error of the kind now under consideration could ever be taken advantage of. The attempt to take advantage of if, would cure it. But here the plea was not received, and ought not, in fact, to be in this record ; and not,being received, it ought not to be used to prejudice the party. — 2 Stewart 41.
    Peck, contra

    Insisted, that the plaintiff in error, was standing, in support of his rights, on amere technicality. , True, there is an error in the writ, as to the time of holding Court.- It is a mere clerical misprision. The giving of the bond, by which the party' had his property returned, was a sufficient waiver of the objection. And the entering of the party’s name, by attorney on the docket, was a sufficient appearance to cure the defect. It shewed the defendant was apprised of the holding of the Court in due time— that he knew the proper term, and recognised it by his own act. If this were not sufficient, the plea in abatement would be. The appearance cures the clerical error. The object of the writ is to bring the defendant into Court; and the offering of a plea shews that the object of the writ has been effected. The giving of the bond, entering of the attorney’s name on the docket, and finally, the offering of the plea, all sufficiently shew, that the defendant knew of the suit, of the Court to which it was brought, of the nature of the action, and.when and where he might appear to defend.
    The clerk says, that at the May term, the following appearances were entered : “ Nabors vs. Nabors. Peck, for Plaintiff — Mardisr, for defendant.” This is a substantial compliance' with the rule : it is a literal compliance, except as to the day when the appearance was entered. Does not this record shew, that the party was present, and employed counsel ? The record shews, that these appearances were entered before the declaration was filed/ If the defendant below, liad, intended to treat such wrif as.fe 'nullity, and had entered no appearance, the plf^ntiif yould then, probably, have discontinued his actgm.' j Shall the defendant be allowed to entrap the plaintiff, by a defective appearance ? If the appearance is1 defective, it is the party’s own wrong, of which he cannot be allowed to take advantage.
    As to the plea in abatement, it is not contended that a defendant cannot take advantage of a defect in the writ, without injuring his rights by appearance; but it is urged, that if he fail to succeed in such attempt, he is shewn to have been- in' Court, which amounts to an appearance. The filing of a plea in abatement is an appearance. Ilerp, the defendant filed his plea; but it was" not in time, and it was therefore rejected by the Court. 114 cannot then turn round, and say he- is not in Court. '
    The law requires an endorsement .of the cause of action on the writ; but the Court has decided, that no advantage,- can be taken of this defect, unless taken at the appearance term. — 2-Stewt. 130. This, like the case before the Court, is a defect in the writ. So, here, the defect should have been .taken advantage of at the retur'n term of the -writ:. the plea was offered at the trial term. — See 3 Peters, 459.
   By Mr. Justice Hitchcock :

This is an action of detinue, brought by William Nabors, against the plaintiff in error, for two negro slaves. The writ was issued on the first day of November, 1830; and is made returnable on the “fifth Monday after the fourth Monday in February,'' then next, when it should have been, fifth Monday after the fourth Monday in March then next The negroes were replevied by the defendant — and bond given under the statute, by the defendant — who kept possession of the negroes, The condition is such, as is usual in such cases. At the May term, 1831, which was the return term, of the writ, it being the first Circuit Court, by law, to be held after the issuing of the writ, the clerk slates the following entries : “At the May term, 1831, of said Court, the following appearances were entered, to wit:

There is nothing else to show any appearance by the defendant, by himself, or by counsel. The plaintiff filed his declaration at this term, and the cause was continued.

At the October term, following, the plaintiff moved the Court to reject a plea, which appears to have been found among the papers of the suit, because there was no endorsement by the clerk of the Court, showing that the plea had been filed within the time allowed for pleading. This plea -is entitled of the May term, 1831, of the Court, was sworn to on the 29th of October, .1831, and is a plea in abatement to the writ, by the defendant in his own proper person, and alleges for matter of abatement, — that by the act of the 16 th of January, 1830, the Circuit-Court for Shelby County, -was required to be held on the fifth Monday after the 4th Monday in March, and not on the 5th Monday after the 4th Monday in February, as is alleged in the writ; and that, because the proper term of the said Court is not set forth in the writ, he prays that the same may be quashed. This plea was rejected by the Court; and the defendant refusing to plead to the action, a judgment by -default was taken, and a writ of inquiry was awarded, and judgment for the plain-' tiff for the negroes, and for damages for the detention.

The defendant has brought the case to this Court, by writ of error ; and has assigned for error, the insufficiency of the writ, it being made returnable at a time when there was no Court, ‘ ■ ■'*

It is admitted the writ is defective; but the defendant in error insists that the defect has been cured by the appearance by the defendant, - by himself and counsel. '

1. Because the giving of the replévy bond, is an appearance inlaw.

2. Because the statement of the- clerk, Shews that Mr. Mardis was substantially entered as his counsel at the return term; and,

3. Because the filing of the plea in abatement, is a sufficient appearance,

The Court does not consider either,; .or all of the above reasons a sufficient-answer tdktó^óbjections to the writ. The giving of the replevyffioñd, was a matter necessary to recover possession <^fe&iegroes, who had been taken into the custody of-the theriff by viiv tue of the writ, and without that thejfstfolffid, have gone into the possession of the plaintiff, who «ad given the necessary bond on procuring the writ - It was riot such a voluntary act as manifested an intention to waive the defect of the writ, and cannot be insisted on as such.

The alleged appearance of Mr. Mardis, is not such as is required by the first general rule, adopted in July, 1830, for the government of proceedings in the Circuit Court. That rule requires"the clerk to keep a “ Book of Appearances,” in which,’ counsel desiring to appear in any suit, shall make-hr said book, or cause the clerk to make, an entry of hi's name, stating the cause in which he wishes to appear,The party or person for whom he appears, and the date of the entry. Such entry is considered an appearance.

The statement in this record does not furnish any one of these particulars, in the manner pbinted out by the rule. It does not shew by whom, when, or on what the entry was made. 1 It does not come up to the decision in the case of Cain vs. Sullivan, cited by the defendant’s counsel; for there, it appeared, the entry was on the docket. This rule was intended to remedy the mischiefs growing out of that decision; and the'Court cannot relax its provisions by intendment. An appearance made and certified un.der this rule, would bind the party. It would be a voluntary appearance, and would cure all defects of an anterior date, not taken advantage of in time.

Néith'er can the Court consider the appearance by the defendant, as set forth in the effort to get the benefit of the plea in abatement, as such voluntary appearance as will, in the event of failure, cure the defect.- To say that a party who appears to assert a defence upon an alleged defect in the proceedings, not going to the merits of the action, shall be precluded from having the benefit of an examination in a higher tribunal, into the validity of that defence, because he fails, in his efforts below, would be unjust in the extreme. By this mode of reasoning, if he ■fails, he has cured the defect by making the point, and if he pleads over, he cannot assign it for error here. He is, therefore, virtually precluded from trying his defence at all. If the defect is such an one as is properly the subject of an assignment of error, his'having failed in endeavoring to assert his right in the Court below, ought not to preclude his being heard here.

But the Courtis not satisfied that the defect in this writ, is such, as can be assigned for error in this Court. By the act, regulating the issuing of process, ''All original process shall be issued by the clerk, and shall be returnable to the first day of the term, be served five days before the term; and where the process issues within five days of the beginning of a term, it shall bo made returnable to the next term after that then to beheld;” and, “ all writs and process issued, made returnable, or executed, in any other manner, or at any other time, may be abated on the plea of the defendant.”

It will not be contended, that an error in the return of a writ, makes the writ de facto, a nullity: it is defective, and may be abated, by plea. But if it have. all the other essential qualities necessary., to constitute a good writ — -if it be signed and tested by the clerk— be directed to the sheriff — describe the Court properly — have proper parties — and contain a-proper cause of action, it shall not be rejected by the Court ex of-ficio. The statute has not declared’such' a writ void. It contemplates the possibility of errors) 'in thé acts of the clerk, and provides a remedy,'by which the defendant shall be permitted to avail himself of the defect, and get the benefit of the delay.

By reference to Bacon’s Abridgment, it will be seen, that such acts as make a writ void, are those which shew that nothing can cure the defect — such, as that no judgment could be rendered thereon. The term used in our statute, that a writ thus defective, may be abated, is understood by the Court, to be sjmony-mous with must be abated; and excludes the idea- of any other mode of taking advantage of the defect. Where a party has been served with process, it is a notice to him, which puts him upon his defence. If he discover a defect which renders the writ void,, he may disregard the. process; and if judgment be rendered against him below, he may come, here and get redress. But if the defect be only an abateable one, by plea, he must apply himself -to his defence at the proper time, in the proper place, and by the mode prescribed by the statute. And if he neglect those requisitions, the law considers him as having waived his privilege; and this Court, sitting here to revise the proceedings of the other tribunals, is not author-ised to consider itself at liberty to overturn proceedings, of which those tribunals have had full cognizance, for technical defects, when the party has negligently, or pertinaciously refused to make his defence at the proper time, and after a full opportunity has been afforded him. This Court has often looked into a writ for the purpose of amendment; but no case is to be found, where it has reversed proceedings upon an assignment reaching only to an abateable defect in a writ, where all other proceedings are regular.

In this case, the writ was served, and was returnable before the regular term. The declaration was filed in time — the defendant was fully apprised of it— but for a technical defect would have appeared by counsel — had a coritinuance — attempted to get the benefit of the plea of abatement; but does not pretend he was in time, and does not assign as error, the rejection of his plea — is required to plead over — refuses — stands by and permits a judgment, without attempting a defence — and has now come here, and wishes to avail himself of a defence, which, at no time is favored by the law, and which has, so far as I am .acquainted, never been allowed in a Court of Error ; and which, while this Court is, as at present composed, will not be allowed.

Let the judgment be affirmed.

       Ala. Rep 31.

       Aik. Dig.278.

       T t'e, Abateman., letter K.


text:
    NEIL, use &c. versus CUNNINGHAM S EXECUTORS.
    Where it appeared, that a demand against an estate had not been presented within eighteen months after the grant of letters testamentary, but, that, the. demand had accrued after that period; held,
    That the demand was not precluded or barred under the statute of non-claim, as that statute does not commence running until the claim has accrued, or the party has a right to sue.
    . Neil brought an action of debt,, in the Circuit Court of Madison, against Cunningham’s executors, to recover an. amount, alleged to have been due by the defendants’ testator, as the surety of one Buford. Buford was the deputy of -the plaintiff; and the cause of action was a sum of money, paid by Neil, to another, for Buford’s default. • The statute of non-claim was interposed to the recovery of the plaintiff, and the Court below, decided that the claim should have been presented within eighteen month s'after the grant, of letters testamentary on Cunningham’s.estate. There was, under this opinion of the Court, a.judgment for the defendants; and, on a bill of exceptions, the .plaintiff brought the case to this Court, and insisted, that as the money for Buford’s default" wa's not paid by him until after the grant of letters, the statute formed no bar, but that the eighteen months commenced running, if at all, when the cause of action accrued.
    Hopkins, for Plaintiff
    cited 2 Call. Rep. 322 — 4 Day’s Rep.'476.
    McClung, contra.

   By Mr. Justice Hitchcock :

This case comes before the Courff.ttfpon an exception to the opinion of the Judge of the .'Circuit Court of Madison county, upon the construction of the statute of non claim. The defendants were sued as executors of J. B. Cunningham, who was. the security of one Buford, who was a deputy sheriff under the plaintiff, and who had had money to pay, as sheriff, for said Buford’s default. More than eighteen months had elapsed after the death of Cunningham, and the grant of letters testamentary to the present defendants before the demand was made by the plaintiffs of them, for tho sum paid for Buford’s default, but less than that time had elapsed after the payment of the money by the plaintiffs, and the demand. The Court below', allowed the bar, and decided that the claim should have been presented within eighteen months after the grant of letters testanientary on Cunningham’s estate.

By our statute of non claim, “ all claims against the estates of deceased persons shall be presented to the executor or administrator within eighteen months after the same shall have accrued, or within eighteen months after letters testamentary or letters of administration shall have been granted, and not after, and all claims not presented within the time aforesaid, shall be forever barred from a recoverywith the exceptions of minors, femes covert, persons insane, or non compus mentis, debts contracted out of the state, and claims of heirs and legatees claiming as such.

The claim of the present plaintiff, was for money he had been compelled to pay for Buford, whose security the present defendant’s testator was. It did not accrue., within the meaning of the statute, until he had paid it. It is true, he held Cunningham’s bond, but it created only a contingent liability which might never become absolute. Neil was sued — Buford was defending — the default of Buford might never be established, and when established, he might pay it. Neil was not at liberty to make a voluntary payment, or at least he was not bound to, in order to b3 able to call upon Cunningham’s executors, and they were not bound or authorised to pay until Neil had been legally compelled to pay the default of Buford. There was, therefore, no use in making- the claim, and the láw will not require that to be done, which, when done, is of no use. Suppose Buford’s default had not happened until eighteen months after Cunningham’s death, and as much longer time had elapsed before Neil had been compelled to pay, could he have no redress? Suppose the estate had been divided among the heirs, could' he not sue them? Surely he could. The first clause in the statute was to embrace such cases as-this.* It contemplates cases which may arise when the claim may not accrue until after eighteen months has elapsed from the grant of letters, and if the party brings himself within that time he may recover.

The decision of this Court, in the case of Bigger, adm'rx. vs. Hutchings & Smith, adm'rs, does not conflict with the views taken in this case. The principle of that case is, that where the claim has accrued, as was the case there, for it was on a judgment by attachment in Georgia,. against the defendants' intestate, it must be presented in within' eighteen months, and the mere issuing of a writ which was afterwards dismissed, was not a sufficient presentation. It must be in such manner as "to furnish ~the administrator with such vouchers and reasonable evidence as might induce a belief that the claim was just.

In this case, the bond was shewn to tHe executors, and within eighteen months; but at that time there had no claim accrued, and as the act was not required, it is not necessary to decide, ther~fQre whether it would have been a good presentation to bar the claim if it had then. accrued.

The case cited from 4 Day's Rep. 476, is in point. The act of Connecticut is similar to ours in this respect, allowing two years for the bar, and it was there decided, that the statute did not begin to run until the plaintiffs had a right to sue.

The judgment must be reversed, and the cause be remanded.

       Aik. Dig.153 § 6.

       2 Stew't, 445

       2 Stew't 448.


text:
    PLEDGER versus GLOVER.
    The finding of ajuryT in determining mutual demands between a plaintiff and defendant, “ that they find the plaintiff indebted to the defendant in the sum of two dollars and forty cents, over and above the plaintiffs demand m this behalf,” is good.
    A notice of set-off, is no part of the record, and any errors in the proof relating to it, must be shewn by bill of exceptions.
    Pledger, bearer of Chapman, instituted an action of assumpsit, in the Circuit Court of Marengo, against Glover. The cause of action was a note of hand for fifty dollars. The plea of non assumpsit was relied on,!|with a notice of set-off. The jury rendered a verdict in favor of the defendant, for two dollars and forty cents; on which the plaintiff took his writ of error to this Court, and assigned as cause for reversal,
    1st. That the judgment was erroneous, and not responsive to the issue.
    2d. That the Court erred in rendering judgment on the verdict.
    Pickens, for Plaintiff
    Stewart, contra.

   By Mr. Justice Hitchcock :

This is an action of assumpsit, on a note given by the defendant to one William W. Chapman, or bearer, dated 9th December, 1829, for fifty dollars. The suit is brought by Pledger, as bearer. . The defendant pleaded non assumpsit, and there is a verdict for the defendant in the following words: The jury upon their oath do say, “ that they find the plaintiff indebted to the defendant in the sum of two dollars and forty cents, over and above the plaintiff’s demand in this behalf:” upon which there is a judgment for the defendant for that sum. Appended to the plea of non assumpsit, is a notice signed by William G. Alston, as attorney for the defendant, addressed to Jeremiah Jones, attorney for the plaintiff; in which he states that the defendant will off-set at the trial of the cause, a note for fifty two dollars twelve and a half cents, which the defendant held against Chapman, before notice of the transfer by him, of the note sued on, to the plaintiff.

There are two assignments of error.

1. That the verdict is erroneous, and not responsive to the issue.

2. That the Court erred in rendering a judgment on the verdict, against the plaintiff.

Our statute of set-off, authorises a defendant, where there are mutual debts between him and the plaintiff, to set one debt off against the other, either by pleading the general debt intended to be off-set, in bar, or by pleading the general issue, and giving tile plaintiff notice of the particular debt so intended to be set-off, stating on what account the same is due. The party has his election, which mode to pursue. If he pleads the set off, the defendant must replybut if he does not plead specially the set off, but rely upon giving notice under the general issue, the plaintiff does not reply, but makes his defence on the trial. This mode of proceeding, however, can only be had when the action is such as will admit of the plea of the general issue. When, either the debt sued .on, -or the set-off' to be made, has accrued by bond or penalty, then the plea of set-off must be made. It is only in cases where neither debt has accrued by reason of a penalty, that the defendant has his election, either to plead, or give notice of set-off.

In this case, there is no plea of set-off. The plea is the general issue. The notice of set off is no part of the record. It is a practical proceeding, addressed by the attorney of the defendant to the attorney of the plaintiff, and does not admit of, or require a replication ; and if the plaintiff relies upon the statute of limitations, he does not plead it as in case of a plea of set-off, but gives it in evidence on the trial. And if there be error on the trial below, it must be brought to the notice of this Court, by bill of exceptions.

Excluding then, from our consideration, the notice of set-off in this record, there does not appear to be any error in the proceedings below. The statute allowing sets off, declares, that “ if it appear to the jury that the plaintiff is overpaid, they shall give a verdict for the defendant, and withal], certify to the Court how much they find the plaintiff to be indebted, or in arrear to the defendant, more than will answer the debt or sum demanded,” 'upon which judgment shall be entered for the defendant. This verdict is a substantial compliance with this part of the.statute. They say that the plaintiff is indebted to the defendant two dollars and forty cents more than his (the plaintiff’s) demand. This is finding the plaintiff overpaid ; and by necessary inference, finds a verdict for the defendant. There is, it is true, no technical finding that “ the defendant did not assume and promise as set forth in the plaintiff's declaration;” but all this is substantially found, and is such a verdict as will sustain a judgment upon it.

The argument of the plaintiff’s counsel proceeds upon the supposition, that the notice of set-off is apart of the record, and that the verdict is contrary to law, as it does not shew any mutual dealings between the parties. Had the plaintiff pleaded the set-off, instead of giving notice of it, and thereby presented the matter of defence on the record, (which in general, is much the best and safest way,) the second assignment might have been reached. But, for aught that appears to the Court, the defendant may have given such notice of set-off as would shew a balance in his favor ; and this Court must presume such to be the case, in the absence of record proof to the contrary — which proof should have been presented by bill of exceptions.

The judgment therefore, must be affirmed.

       Aik. Dig.281.

       1 Chitty’s Pl. 605, 608.

       1 Ch. Pl. 607.

       3 Ch. Pl. 933.

       1 Ch. Pl.607.


author: By Mr. Justice Thornton.

text:
    HAUGHY versus STRANG.
    It is a rule of practice in equity, that a bill may be dismissed, on motion, at any time, for want of equity.
    Where Courts of Law and Equity have concurrent jurisdiction of a matter of defence, and a defendantelectsto defend at law, and fails, he will not be per. mitted afterwards to apply to chancery, unless such failure has resulted from unavoidable accident.
    The refusal, of a Common Law Judge, to grant a new trial, in a case adjudged before him, and where all the facts were properly cognizable, is not a good cause for an application to chancery.
    The complainant, Haughy, filed his. bill in the Chancery Court of Tuskaloosa county, for relief against a judgment at law. The bill stated, that the defendant in error had recovered judgment against the complainant, in an action of trover; that the property was that of the complainant, and that on trial, (the Court having convened earlier than usual, when he was not enabled to assemble his. witnesses,) unfail-evidence, as lie was informed, was introduced against him. That he afterwards applied for a new trial, which was refused by the presiding Judge.
    The defendant filed an answer, and the cause, after being several times continued, was dismissed, on motion, for want of equity apparent on the face of the bill.
    A writ of error was thereupon taken to this Court, and it was said,
    1st. That the Chancellor erred in dismissing the bill, on motion.

    2d. That the bill was entitled to equity.
    Stewart, for Plaintiff.
    I object that it was too late, except on final trial, to dismiss for want of equity. The doctrine is, as to there having been a trial at law, that where the party has not had an opportunity to make his defence, equity will relieve. In a question of this kind, the bill must be taken as true. Here, there is a charge of fraud, duress, and oppression, and of the fact, that the defendant had no opportunity to make his defence. But, the Judge that dismissed the bill, said, that no Judge could have been so oppressive as to proceed in the manner charged. But it will not do for a chancellor, acting on matter appearing on the face of a bill, to say that he does not believe its statements. The statements of the bill must be taken as true; and from these it appears, that the Court, in the Common Law suit, sat at an unusual hour, when the defendant Haughy was not present; that Strang introduced fraudulent proof-proof of money paid, that had in fact been settled ; and that he had no opportunity of defending himself below. The, bill charges fraud, force, and duress, in the commencement of the affair — fraud also, in the manner of prosecuting the suit. Under these circumstances, chancery will open the cqse, .-and grant relief to the amount of the excess beyond, what Haughy received. Strang received the goods ás a pledge ; and yet, in the action at law, he recovered their value. This was recovering the amount of a penalty : and to relieve against a penalty is the province of a Court of Chancery.
    I doubt whether we are compelled to assert our equitable right to redeem, in a Court of law. Could we have been relieved there ? and^ if* we could, has not chancery, in a case like this, - also • jurisdiction ? The most that could be said on the other side, would be, to raise the question of costs.' :$-

    Ellis, contra.

    I have always understood the rule to be, that a motion may be made at any time, to dismiss for want of equity on the face of the bill. The . proceeding, I conceive, was regular. The Court is referred to Rule 7th, of this Court, on the subject of Chancery practice.
    This bill wants equity on its face. Courts of Chancery will not relieve against a, verdict and judgment at law, where the party might have made a complete defence.
    Strang was entitled to the value of the goods; The agreement was, that they were to be his property, if it should appear that the money had been received by the sub-agent, and Haughy ’should fail to pay over the money. If these goods should be considered as having been mortgaged, it was competent for the mortgagor to give evidence in a- Court of Law, in reduction of damages. There" is, therefore,, no ground for the interference of a Court of Equity.
    The reason given for not defending at law, is insufficient. “ The Court,” it is said, “ met at an unusual hour.’’ Did it meet before the time it adjourned to ? It is not stated. The excuse is of the most flimsy kind. Are Courts to attend to the convenience or the caprice of parties? Relax the rule to this extent, and all cases will be drawn into Courts of Chancery. The rule is, that chancery will not relieve against a trial at law, where the party might have made a complete defence. There is no shewing in this bill, of fraud in obtaining the judgment — no shewing of accident, surprise, or any thing else that would bring the case within the exceptions to the rule, as I ■have laid it down. — 1 Marsh. 13, 16, 155, 812 — 3 Lii-tett, 430 — 4 Littell, 163, ’4 — 3 Johns. Ch. Rep. 351 to 356 — 4 Johns. Ch. Rep. 566 — 6 Johns. Ch. Rep. 87, 479 — 3 Dessaussurés Rep. 325 — Hardin’s Rep. 173.
   By Mr. Justice Thornton.

This cause is brought up by -writ of error, from a ..final decree of a chancellor, dismissing the bill of the plaintiff, on motion, for want of equity on the face of the bill, after answer filed, and after several continuances of the cause.

The first error assigned, questions the propriety of dismissing the bill, on motion. Independent of any general authority for this course, we have an express rule of practice, which allows it. The complainant cannot justly complain of a result, which would have been inevitable at the final trial, no matter how long protracted, if the merits of his bill were disallowed. The time when a bill is dismissed for such a cause, being immaterial, the only question which can arise, is, whether the dismission was proper, with reference to the matter which it contains. The bill in this case, reduced to its substance, is, to this effect. The complainant was sued in the Circuit Court of Tuskaloosa, in an action of Trover, and a recovery had against him by the defendant. It alleges, that the property sued for, was, in truth and in fact, that of the complainant; that it had been pledged to the defendant only ; and that the pledge was extorted by duress; that on the day when the judgment at law was recovered, the Court met at an earlier hour than was usual at that season of the year ; so, that neither he or his witnesses were present; that, as he was informed, though he does not say he believes it, unfair evidence was introduced upon this trial, not relative to the matter in controveasy; that he made an application to the presiding Judge for a new trial, which was unkindly denied.

In deciding upon the propriety of dimissing this bill, two questions present themselves. The firstis, whether the matters set forth were not all properly cognizable in the Court of Law, and might not have been fully availed, in defence of the action which he now seeks to overhaul: And, secondly, whether the facts alleged, by way of excuse, for not having done so, are sufficient to authorise an interference by a chancellor; especially as a new trial has been refused by the tribunal before whom the whole matter transpired. The doctrine is, that if the matter set tip in the bill constitutes a good legal defence to the action, equity will not entertain a complaint; unless, without any fault or negligence on the part of the complainant, by cir-stances beyond his power to control, an opportunity of making that defence, was lost. As to the matter of this bill, whether of fraud, of duress, pledge of the property, or whatever else it discloses, I entertain no doubt, that there was ample means of relief in the trial at Common Law, according to the principles which regulate that forum : and I am equally clear, that the failure to avail himself of them, was not the consequence of such necessity as would authorise the interposition of chancery.

There is another principle applicable to this case, as now presented, which, in my opinion, is decisive against the plaintiff. It is this: if a matter of de-fence is optional with a defendant, the Court of Law and of Equity, having concurrent jurisdiction, however he might defend at law or not, yet if he elect to do so, and fail, he cannot afterwards apply to chancery, unless that failure has been occasioned,by unavoidable accident. Now, the application for a new trial, is one of those means of legal relief, which will, in presumption of law, always be allowed to prevail, in a case where the matter has not been settled in such a way as ought to be conclusive on the rights of the applicant. The very question attempted to be agitated in this bill, we are bound to consider as having been determined adversely to the complainant, when his motion for a new trial was heard and overruled by the Common Law Judge.

In every view which we can take of this case, we arrive at the conclusion, that the decree below, must be affirmed.


author: By Mr. Justice Thornton :

text:
    MALONE AND LAKE versus EASTIN AND GAYLE.
    The Supreme Court will not review the discretionary power of an inferior Court, in granting or withholding new trials.
    Where part of the term of a Court was held by one Judge, and part by another, held, that the latter was not precluded from considering a motion for a new trial, in a cause adjudged by the former.
    This was a motion for a mandamus.

    It appeared, that in this cause a new trial had been granted by a Judge, who had not presided at the first decision. 'The term was held, by two Judges sue-cessively, one of whom had left the bench for some canse unknown, and it was here assigned as good canse for the mandamus to issue, that his successor had considered and granted the new trial.
   By Mr. Justice Thornton :

This motion is submitted upon a record of proceedings had in the Circuit Court of Greene county. The record shews a judgment rendered for the plaintiffs, and at the same time,, an order vacating that judgment, and granting a new trial, upon payment of costs.

The effect of the motion here submitted, if successful, will be to revise, and reverse the order granting this new trial. It has been established as the settled doctrine of this Court, not to review the exercise of the discretionary power of the Judges of the inferior Courts, in granting, or withholding new trials. The peculiar circumstances of this case, have been supposed, by the counsel who makes the motion, sufficient to authorise and demand, a departure from this rule of practice. It seems, that the Judge who presided-at the trial, for some cause which doubtless fully warranted the measure, signed the minutes of the proceedings had during a part of the term, and that, during the remainder of it, another Judge held the Court; which last Judge granted the new trial. The argument for this motion, is, that the discretionary power to grant a new trial, can only be properly exercised by the Judge who heard the cause; that the very reason, which it is supposed ■ influenced this Court to decline in such case, a reversing power, viz. that it could not be fully possessed of the true grounds upon which the inferior Court proceeded, should induce us to interfere in this case; in which it is assumed, that the Judge vrho granted it, must have been ignorant of those facts, which should enter into a consideration of every motion for a matter of this kind. Now it is not necessary, that a motion for a new trial in this case, was made upon any facts, which could, in any manner, be affected by any thing which transpired during its progress. Suppose the motion were grounded upon a discovery made of testimony, after the former Judge had abdicated, upon a point material to the merits of the controversy ; and upon which, no, evidence had been adduced at the former trial. In such a case, and in many others, which might be imagined, the power should be exercised by some one ; and if death, or any other imperious necessity, prevent the Judge who tried the cause, from doing so, I can see no objection to its being done by his successor, who is empowered by law, to act in his stead ? Either he must do it, or there would be a failure of justice; or a resort must be had to a Court of Chancery. For, at the close of the term, the record is unalterable ; except in a few specified cases of entries, nunc pro tunc, from 'memoranda made during the term. New trials, at law, are not unusually granted by a chancellor, when a proper case is made out, and presented 'to him. Such a power is warranted, both by principle and precedent. And its exercise in such case, is conclusive, to shew, that there is nothing so incongruous to justice, in the fact that one Judge may hear the cause, and another grant a new trial of it, as seems to be supposed by the counsel who urges 'this motion. In chancery, to be sure, the matters alleged for the interference in the bill, are allowed to be contradicted by answer, and much delay intervenes before the matter is determined ; whereas, the delay is avoided by the application made' to the succeeding Judge; and in this latter mode, the trial may be had, de novo, before the action of the chancellor is determined. But as regards the main ground of objection urged, the principle would equally apply to abrogate such authority in the chancellor; for he, no more than the Judge who granted the new trial, heard the one which is set aside by his fiat.

The ground of the application in this case, is not apparent from the record; but we are bound to presume it was such, as warranted the interference. But, if it were rashly, or even improvidently allowed, the remedy is not by an application to this Court.

Motion overruled.


text:
    ESTILL versus SHELLEY.
    Where, in a declaration, in trespass vi et armis, the time of committing the trespass was left blank, held, that the defect was one, cured by the statute of amendments, and not available on demurrer.
    This action was trespass, vi et armis, for carrying away a slave; brought by Estill, in the Circuit Court of Shelby. There was a demurrer to the declaration ; and the defect complained of, was, that the time of committing the alleged trespass, was left blank in the declaration. The Court sustained the demurrer, and the plaintiff took his writ of error to this Court. .
    Peck, for Plaintiff
    Shortridge, contra.

   By Mr. Justice Hitchcock :

This is an action of trespass, vi et armis, for taking and carrying off a slave, the property of the plaintiff. The declaration is in the common form, but the blanks, as to the time of committing of the alleged trespass, are not filled up; for this, there is a general demurrer. This defect is cured by the sta^ tute of amendments, which considers all such defects as amended.

The judgment, must, therefore, be reversed, and the cause remanded.

       Aik. Dig.266.


author: By Mr. Justice Thornon :

text:
    BAIRD versus NICHOLS.
    The balance of an open account, (originally for more than fifty dollars, but reduced below that amount by credits, )is recoverable before a Justice’s Court,
    Baird commenced proceedings, by warrant, before a Justice of the Peace in Tuskaloosa county, to recover the balance, of an open aocount, alleged to be due by the defendant, Nichols. The magistrate, on the trial, rendered judgment in favor of the plaintiff, for seventeen dollars and twenty two cents, with which he being dissatisfied, removed the case by cer-tiorari, into the Circuit Court.
    It appeared that the account, had, originally been for the supi of one hundred and/,sixty six dollars and sixteen cents, but was reduced by credits, (all admitted by the defendant) to the sum of forty nine doh iars one cent, which the plaintiff claimed. The Court below decided, and so charged, that the original demand having been for more than fifty dollars, the Justice of the Peace had no jurisdiction, but that the account should have been sued in the Circuit or County Court. On this decision there was a judgment in favor of the defendant-, and Baird, by bill of except Urns brought the rase .into this Court.

      Stewart, for Plaintiff
    Ellis, contra.

   By Mr. Justice Thornon :

This was a trial in the Circuit Court of Tuska-loosa county, of a case brought before it by certiorari, from a Justice of the Peace. The statement of the plaintiff was, that the defendant owed him fifty dollars, for work and labor done, &c. at his, the defendant’s special instance and request; and upon non-assumpsit plead, an issue was joined. A bill of exceptions was signed at the trial, on which error is assigned in this Court. Upon an examination of the bill of exceptions, it is apparent to my mind, that the only question which could have arisen, was, whether the balance of an account for services rendered, reduced below fifty dollars, by credits, could be recovered by warrant from a Justice of the Peace; and not,, whether a warrant would lie for the breach of a contract to perform service, of greater value than fifty dollars. With reference to the question first mentioned, which alone grew out of the testimony stated, the Court charged the jury, that as the amount of the account for service performed, was originally more than fifty dollars, the plaintiff ought not to recover, even though by credits, which he offered to prove, the amount had been reduced below that sum. Now, that question had been differently settled by the decision of this Court, in the case of King and Dougherty; upon the authority of which, this judgment must be reversed, and the cause remanded.

       2 Stew't, 487.


text:
    THOMAS versus ADAMS.
    The act of 1J520, extending thejurisdiction of the Circuit Court of Cotaco (now Morgan) County, &c. to all the tract,of country belonging to the Cherokee Indians; vested in the Circuit Court, the jurisdiction only, of crimes and misdemeanors committed within those tracts of Indian country; and did not ex- ' tend thereto, the civil jurisdiction of Justices of the Peace, in cases of forcible entry and detainer.
    The act of 1832, extending the jurisdiction of the State over the Cherokee Nation, is not entitled to a retroactive operation, so as to authorise proceedings . for a forcible entry committed on lands in the Indian nation, prior to the paa- - sage of that act.
    Thomas instituted proceedings of forcible entry and detainer, in a Justice’s Court, in St. Clair county, to recover possession of a tract of land lying in the Cherokee nation, from which, as was alleged, Adams had with force ejected him. A judgment, rendered by the Justice in favor of the plaintiff, was removed into the Circuit Court, by certiorari, where the defendant contended that the forcible entry was charged to have been committed before the jurisdiction of the State Courts was extended over the territory in question. The Circuit Court reversed the judgment rendered by the Justice, and the case was brought into this Court by writ of error.
    P. Martin, for Plaintiff
    Contended, that on this point it was impossible to reverse the cause. Whatever question might have arisen as to the jurisdiction of the Court, had the trial taken place, immediately after the entry was committed, was no question now. The act of Assembly extending the jurisdiction of the Courts over the Indian territory,- was passed before the trial took place, and gave the Justice, unquestionable jurisdiction. But, independent of that act, it might safety be contended, that the proceeding could, have been supported on the authority of the statute of 1818, which permitted process to run into the Indian territory.
    If jurisdiction be not maintained, in cases like the present, what is to control trespasses committed on citizens- in the Indian nation, or what tribunal is to adjust civil controversies, between different individuals ?
    Peck, contra

    Said, that the forcible entry, if committed at all, was committed in the Cherokee nation, beyond the jurisdiction of our Courts, and before the act of Assembly extending jurisdiction, was passed. The law of forcible' entry, for aught that appeared, had no existence in the Indian nation, at the time the trespass was alleged to have been committed. Under these circumstances, the passage of a statute subsequently extending jurisdiction, could not give any ground of suit. If it be said, that the statute only gives the remedy, I answer, that an extraordinary remedy, like this, given by statute, cannot reach back, and operate on acts done, before the law existed.
    If the country had been taken by conquest, even then, such retrospective proceeding would not be admissible.
    Again : the act extending jurisdiction, if reaching to such a case as the present, was clearly -unconstitutional, being in violotion of subsisting treaties.
   By Mr. Chief-Justice Saffold :

This was an action for a forcible entry and detain-er, tried in the county of St. Clair. Thomas was plaintiff below. His plaint to the magistrate, charges, that in 1830, he was in possession, as tenant at the will of the United States, of a certain improvement, of fifty acres or more, of emigrated land, part planted in corn, and containing, at the time of the trespass, three dwelling houses, a kitchen, a crib with corn in it, also a quantity of farming utensils, &c.' — all lying and being within the county of St. Clair, State of Alabama, in the Cherokee Nation, known and designated there, as “ the Old Village,” on Tarapin 'creek ; and that being so possessed, and peaceably enjoying the same, the defendant, Adams, with force and arms, entered upon, and dispossessed him, and continues to detain the premises aforesaid.

On the trial before the justice, a verdict and judgment were rendered in favor of the plaintiff.

The cause having been removed .into the Circuit Court by certiorari, Adams assigned for error, various causes, among others, that it appears from the petition and complaint, as made to the magistrate, that the forcible entry complained of, is charged to have been committed in the county and state aforesaid, “in the Cherokee nation,” and on “ emigrated land,” and that this was before the jurisdiction of the Court was extended over that portion of the Cherokee nation.

The Circuit Court reversed the judgment of the Justice, and gave judgment in favor of the defendant, for his costs expended; to reverse which, the. plaintiff now prosecutes this writ of error.

■ The ground of error relied on in this Court, is, that the Circuit Court reversed the judgment of the Justice, for the causes assigned.

According to the view we have taken of the case, the exception alluded to, is decisive of the contest, and the one point alone will be considered. The others, are peculiar to this case, involving no material or general principle.

My examination of the subject will be directed to the inquiry, whether, in 1830, when this trespass is charged to have been committed, the laws of the State liad been so extended over tire lands in question, as to sustain the proceedings which were had before the magistrate; and if not, whether the subsequent extension alone, or that aided by the Common Law, was sufficient — the extension having taken place before, the institution of suit ?

The action was commenced in May, 1833. In 1820, it was declared by statute, that “the Circuit Court of Cotaco (now Morgan) county, shall have jurisdiction, and the county shall embrace all that tract of country lying west of Willstown Valley, and belonging to the Cherokee nation of Indians. And the county of St. Clair shall embrace all that tract of country belonging to the Cherokee nation of Indians, in Willstown Valley, and east of the same. Also, that “the expenses of prosecuting and supporting criminals who are prosecuted for offences committed on Indian lands, shall be paid out of the contingent fund, upon a certificate of the Judge, made out, as in cases now provided for by law.”

It is to be observed, that this act purports an extension of only Circuit Court jurisdiction over the Cherokee nation, and that, as respects St. Clair, it does not even to express that. But, in as much as the first clause of the first section, gives jurisdiction to the Circuit Court of Morgan, and expresses that this county shall embrace one portion of the nation; and the latter clause expresses that St. Clair county shall embrace the residue of the same nation, the intention of the Legislature to extend to the latter county, the same jurisdiction, may well be inferred. Yet, they appear to have been cautious in the terms used, to effect the contemplated extension. The comprehensive language, “ civil and criminal jurisdiction,” as often employed on oilier occasions, seems to have been purposely avoided, and the more, limited expressions used, that the Circuit Court shall have jurisdiction, and the county shall embrace, &c. Nor is any attempt made to designate the particular boundaries of country thus to be embraced within the two counties; it being only said, that the part lying west of th® Valley should be embraced by the one, and that the Valley and part east thereof, by the other. These peculiarities in this statute, and the provision made in the second section, for defraying the expenses of criminal prosecutions, together with the consideration, that, according to the Constitution of the State, in all criminal prosecutions, the accused has a right to a speedy public trial, by an impartial jury of the county or district in which the offence shall have been -committed, I think fully -warrant the conclusion that nothing more was contemplated by this statute, than to vest in the Circuit Courts of these counties, jurisdiction of crimes and misdemeanors, committed within these tracts of Indian country. No power can be exercised by tribunals of special or limited jurisdiction, except such as has been expressly given. I am, therefore, of opinion, that the qualified extension of jurisdiction to the Circuit Court, as expressed in the above recited act, had not the effect to extend the civil jurisdiction of Justices of the Peace, over the same tracts of country; and without which there could have been no authority for the proceeding, unless the jurisdiction has been subsequently given. It may also be noticed, that at the time this injury is charged to have been committed, no act of our Legislature had declared any abolition of the laws, usages, or customs then in force in the Cherokee nation.

But it is contended in argument, that if the statute referred to, be insufficient to sustain the proceedings in this case, the subsequent act of 1832, being anterior to the institution of this suit though subsequent to the entry, furnishes the requisite authority.

It is true, that acts were passed at the session of 1831 ’32, in terms very different from those used in 1830. An act of this session, declares an extension of the civil and criminal jurisdiction of the State over all the Indian territory within the same; also, an abolition of all laws, usages, and. customs, then used, enjoyed, or practised, by the Creek or Cherokee Nations of Indians, within the limits of the state, which were contrary to the constitution and laws thereof.

At the same session another act was passed, entitled “An act to designate the boundaries of certain counties therein named,” (but I do not find in the late Digest,) which, according to designated boundaries, extended the county of St. Clair over a portion of the Cherokee nation, and also extended other counties in like manner over the residue.

In as much as the plaintiff's complaint before the Justice, charges this forcible entry to have been committed in the county of St. Clair, “ in the Cherokee ration,” and “ on emigrated landsa description which is inapplicable to any other part of the oouny, except that over which the boundary was extend-¡d by the act last referred to ; and as the counsel, on toth sides, treated it in argument, as being in that >art, we feel bound so to consider it. Then, the uestion arises, whether the Courts are authorised to ive to this act, extending the laws of the State' over rat tract of country, subsequent to the commission f the trespass, such retroactive operation, as vnll rtitle the plaintiff to the relief sought. This point ' the case would admit of extensive investigation, if le matter in controversy was of sufficient impor-moe to justify it: as it is, however, I will content Ryself with a brief examination of the principle.

As a general rule, the remedy for the assertion of existing rights, is always subject to the lex fori, and, the Legislature is competent to modify, regulate and apply it, at discretion: but rights, in contradistinction to the remedy, as title to property, the validity and effect 'of contracts, &c. must be governed by the lex loci. As a consequence of this principle, if a right of action has arisen without the jurisdiction of this State, and the party subject to it, afterwards come within the jurisdiction ; or if the jurisdiction be extended over the person — the action in either case being transitory in its. nature; or, if the jurisdiction, in case of a local action, be extended over the subject matter; in all these cases, the Courts of the State are competent to enforce, the right, according to the forms prescribed for the government of our Courts.* The exception may exist, that our Courts would not be bound to administer a law - of a different country, if found incompatible with our public policy. In administering justice in such case, we should be governed, in reference to the right or title, by the law of the place or country where it originated; but in applying the remedy we can be governed alone by the forms prescribed for our own Courts. If the law, establishing the right, be not proven to the Court, and it is one which exists a Common Law, on the presumption that such is the] law of that contract or other subject matter, we ar authorised to apply it accordingly. If the righ - claimed, have no foundation in the Common Law. and the law of the place be not established, our Conrtej can have no warrant for sustaining the suppose right, and must, of course, refuse it. This principle] I consider no less applicable to the Cherokee nation] while the laws, usages, and customs of the countrj existed, than to any other government; and if, fronj the condition of their, laws, they cannot. be proveí elsewhere, the ,only consequence is, that the principles of the Common Law must be applied. This rule is founded in necessity; without it, there could be no authority for entertaining a suit on any bond or note, or enforcing any right, originating in that place, or elsewhere, beyond the jurisdiction of óur own Courts. ■ -

According to the Common Law, if a man had a right of entry in himself, he was permitted to- enter with force and arms; and to detain his possession by force, where his entry was lawful. If he thereby subjected himself to a prosecution, it was only to an indictment for a breach of the peace, where force and violence were in fact used. It is true, that such’i person, like ail others m possession of lands, was subject tó civil suits, to try the true right of property, or the right of possession, as either might exist at law. But in such suit the estate or merits of the title were subject to examination, and were sufficient to determine the controversy according to the rights of the parties, whether absolute or limited. The right of the plaintiff to restitution did not depend, as provided by our statute, on proof of a mere forcible entry and detainer, or forcible and unlawful detainer, hut on the legal right to possess and enjoy the premises, at least for a term. Under the statute, one who is legally entitled to present possession of the lands, by the means of obtaining the same, as in case of a forcible entry and detainer, may subject himself to ouster, by the summary remedy resorted to in this case. The statute has declared, that in this action, “ the estate or merits of the title, shall in no-wise be inquired -into.”. The consequence is, that in this case, the defendant may have entered, as by the Common Law he lawful-iy might, and yet, under the statute, be subject to immediate restitution to him who had the prior, thoiigh unlawful possession. The object of the statute was merely to prevent the violence and general mischief resulting from the Common Law right, of forcible entry &c.

Then, the correct rule of construction, does no" give to the act, extending the jurisdiction of the State over the Cherokee nation, that retroactive operation ■which would be necessary to entitle the plaintiff to the relief sought. Had the law been thus extended, before the forcible entry was committed, the principle would be entirely different, as it would also be, if the right; claimed, under the facts of the case, would, at Common Law, entitle the plaintiff to immediate restitution.

From this view of the subject, alone, it results, that the judgment below, must be affirmed.

       Aik. Dig.222, § 1.

       Aik. Dig.223, § 2.

       Aik. Dig.224.

       4 Com. Dig. Entry A.''Note (a)-Bac. Ab. Forcible Entry and Detainer.


text:
    PIERCE & BALDWIN, use, &c. versus HICKENBURG.
    In an action by partners, on o partnership demand, a judgment, obtained against one of the firm, b}' the defendant, is not available as an cif-set
    Fierce & Baldwin, for the use of Stewart, brought an action of assumpsit against the defendant, in the Circuit Court of Tuskaloosa. They declared, as co-partners, and merchants, for goods sold by the firm, to the defendant, and the pleas filed, were, non as-sumpsit,' paymént, and set-off.
    On the trial, the defendant offered as a sét-off to the plaintiffs’ demand, a judgment, obtained by him against Pierce, one of the partners, which, the Court, after objection,- admitted. It was proved, that the firm of Pierce & Baldwin had failed — that all the effects of the copartnership, and its rights and credits, had been assigned to Stewart, as trustee, by deed of assignment, duly recorded, for the payment of the debts due by the copartnership, and that there was not a sufficiency of assets of the firm to pay the firm debts, according to the provisions of the deed of assignment.
    The Court charged the jury, that the judgment against Pierce ivas a good set-off against the plaintiffs’ demand, and that the assignment, failure, &c. did not vary the principle. Judgment having been rendered against the plaintiffs, the case, by bill of except tlons, was brought into this Court.
    Stewart, for Plaintiff. — Ellis, contra.

   By Mr. Justice Thornton :

This was an action of assmnpsit, brought in the Circuit Court of Tuskaloosa, by the plaintiffs in error, as partners in trade, against the defendant. The pleas were filed in short, non assmnpsit, payment, and set-off’. At the trial of the cause, as appears by a bill of exceptions, signed by the presiding Judge, the defendant offered in evidence, as a set-off against the demand of the plaintiffs, the record of a judgment, obtained by the defendant, against the plaintiff, Pierce;, which, the objection of the plaintiffs’, notwithstanding, was admitted by the Court; who charged the jury, that it was a proper set-off against the claim of the plaintiffs.

All the assignments of error involve only one question, viz -: whether this instruction was correct or not. Unaccompanied with any other proof, shewing the liability of the firm to pay that judgment, it was clearly inadmissible. The doctrine is well settled, adversely to the allowance of the set-off, of an individual debt, due by one member of the firm, against a partnership demand. The debt sued for, must be conceded to be, in part, at least, the property of Baldwin: then to allow it tobe paid off by a claim against Pierce, would to that extent, at any rate, be a manifest injustice. But by the settled rule of law on this head, to no amount whatever, not even to the extent of Pierce’s acknowledged interest, which would be the utmost that could be pretended to be claimed, with any shadow of justice, can a set-off be allowed. Could the defendant, by adopting a separate action, for which the set-off is only a statutory substitute, recover from the plaintiffs the amount of this judgment ? Certainly he could not. Now, I understand this to be a decisive test, whenever the party plaintiff, whether one or more, sues on an original demand, and not one derived” through an assignment, that the party defendant, or some one or more of them, must be able to sustain a cross action against the plaintiff, or there can be no set-off maintained.

We have been referred, by the counsel for the defendant in error, to the case, decided by this Court, of Pitcher & Remsen vs. Patrick’s adm’rs, to support the judgment in this case. The principle of that decision, is recognised as sound law, but it does not conflict with this opinion. There, the defendants were joint obligors, and an action could be maintained by the defendant, Remsen, against the plaintiff, for the debt offered to be set-off: so, that the principle of the remedial statute, allowing a set-off in the nature of a cross action, directly embraced the case. Whatever extinguished the plaintiff’s demand, whether moving from one or the other of the defendants, was equally available to both. But here, the plaintiffs are joint creditors, and no action could be maintained against them, to recover the- amount of the judgment against Pierce. So there is no pretext for allowing tlie set-off, whose office is, merely to effectuate summarily, what a distinct action would otherwise he necessary to accomplish.

Let the judgment be reversed, and the cause remanded.

       Minor's R.321


author: B j Mr. Justice Thornton :

text:
    MERRIWETHER versus GARVIN.
    The certificate of a presiding Judge, to the record of another State, thatthe clerk attesting the record, was clerk at the date of his, the Judge’s certificate, and that the, attestation was in proper form; held tobe a sufficient compliance with the, provisions of the act of Congress regulating the authentication of records.
    It is not essential, that the Judge’s certificate should state, that the clerk attesting the record, was clerk, at the date of attestation.

    An action of debt was commenced by Merriwether, against the defendant, in the Circuit Court of Tuska-loosa. The cause of action declared on, was the record of a judgment, originally rendered against the defendant in the State of Georgia. Under the plea, of mil tiel record, the Court below rejected the record, on the ground of its insufficient authentication. It, appeared, that the presiding Judge, whose certificate was appended to the record, certified only, that the clerk who attested the same, was clerk, at the date of the certificate, and that, his attestation was in due-form. The Circuit Court ruled, that the certificate should have shewn, that the clerk attesting the record, was clerk at the date of attestation. Judgment being rendered for the defendant, a writ of error was taken by the plaintiff, to this Court.
    Stewart, for Plaintiff,
    cited 1 Starlcie, 154— Brown vs. Adair, July Term, 1831.

      Crabs, contra.

   B j Mr. Justice Thornton :

This was .an action of debt in the Circuit Court of T uskaloosa county, upon a record of a judgment rendered in the State of Georgia, in favor of the plaintiff in error, who was the plaintiff’ also in the Court below, against the defendant. The record shews, that issues were joined upon the pleas of nul tiel record, and of payment: and that upon the trial of the first issue by the Court, the record declared on, was held to be insufficient, for a defect in its authentication ; which defect was, that the certificate of the presiding Judge, omitted to state, that the clerk who attested the record, was clerk, at the date of his attestation, and certified only, that he was so, at the date of his, the Judge’s certificate, and that such attestation was in due form.

That there was error, in rejecting the record for this cause, has been decided in this Court, in the case-of Brown vs. Adair, at July Term, 1831; which decision, we still think, contains the just exposition of the’ act of Congress, regulating the authentication of judicial proceedings. For this, which' is the only matter presented to the consideration of the Court, by the assignment of errors, the judgment of the Court below must be reversed, and the cause remanded for’ further proceedings to be had therein.