text:
    WATKINS VS. CANTERBERRY.

      Point, upon the amendment of pleadings.

      As to writings, importing a consideration.

    1. An amendment of a declaration, in a material point, is not allowable after an issue is submitted to a jury.
    2. Thus — where a writ issued against one by the name of “ Watkins,” and he was declared against by the name of “ Watson” — it was held, that after objection to a note signed “ Watkins,” offered to the jury under the general issue, the suffering an amendment of the declaration, was error.
    3. A note, payable in cotton, for value received, under the statute law of this State, imports of itself a consideration.
    In error to the Circuit Court of Lowndes county.
    This was an action of assumpsit, upon an instrument in writing, for the delivery of cotton in the seed. The writ issued in the cause, commanded the sheriff to take the body of Barnabas R. Watkins] and the declaration was against Barnabas Watson — describing the note as made by Barnabas R. Watson. On the trial, the plaintiff having produced a note signed by B, R. Watkins, the defendant’s counsel objected to its being offered as evidence. The Court overruled this objection, and suffered the plaintiff to amend his declaration, by striking out the name of Watson, and inserting that of Watkins. The note was then read in evidence, and it was in the following terms:
    “ By the first day of January next, I promise to pay Samuel Canterberry, or bearer, eight thousand seven hundred and ninety pounds of good seed cotton, to be delivered at Benjamin Calloway’s gin, in good order. October 2d, 1835. — B. R. Watkins.”
    The defendant further objected, that the note of itself did not import a consideration, and that the plaintiff should prove one.
    The objections were overruled, and verdict and judgment rendered for plaintiff. And the defendant excepted, and took a writ of error.
   COLLIER, J.

— 'The defendant in error sued out a writ of capias ad respondendum against the plaintiff, and declared against him, by the name of Barnabas R. Watson. The note offered to the jury, under the general issue was signed B. R. Watkins.— To its introduction the plaintiff objected — whereupon, on the application of defendant’s counsel, the Court allowed “Watson” to be stricken out, and “Watkins,” inserted, and then suffered the note to be read to the jury. The Court also charged the jury, that it was not necessary for the defendant to prove a consideration for the note — its terms imported a sufficient one, in the absence of proof impeaching it. To all which the plaintiff excepted; and now assigns them for error.

If an application had been made to the Court to amend the declaration at the proper time, it should have been granted, so as to make it correspond with the writ; but an amendment (at least in a material part of the pleadings,) is not allowable after an issue has been submitted to the jury. By such an amendment, a different case is made than the parties assent to try. To have authorised a recovery in this case, in the condition the pleadings were when the issue was submitted to the jury, it was necessary to prove a liability against “ Waison,” — as amended, “Watkins” was to be charged. The plaintiff may have been ready to try the first, and not the last issue. Had the declaration disclosed a demand against him, he might have continued, for the absence of some material witness; but not being able to foresee the change made in the pleadings, he felt himself prepared for trial. In fact, he could not with propriety say that a witness who was material on the trial of an issue involving the liability of “ Watkins,” was alike essential to the defence of “ Watson.” The amendment then was unauthorised, as varying the proof in favor of a recovery, and of consequence, the evidence in the defence; and not depending upon a discretionary exercise of judgment for its justification, is revisable on error.

The note is for the payment of cotton at an agreed time, “for value received;” and by our statute, is placed upon the same footing with a note for the payment of money. The decision of the Court, that the note imported in itself a consideration, was proper; and such has been the decision of this Court. See McMahon vs. Crockett.

Upon the first ground, the judgment must be reversed, and the cause remanded.

       g gaira{f Ev-

       s6¿a,Rep'


source: Caselaw Access Project

author: HOPKINS, C. J.

license: Public Domain

text:
    ALDRIDGE VS HIGHTOWER.

      Points as to the trial of cases of forcible entry and de-tainer.

      1. Proceedings commenced before justices of the peace, on for-» cible entry and detainer — when removed into an appellate Court, must be tried upon the record, without a declaration or jury-
    2. The justice before whom such proceedings are had,, has no right to enter upon his minutes, other evidence than such as is made the ground of exceptions.
    3. Such proceedings, when removed to an appellate Court, must be tried upon an assignment of errors : and where there is-none, the judgment will be affirmed.
    4. So, if proceedings, commenced before a justice of the peace,, are removed to the Circuit Court, and from thence into the Supreme Court, and the record shows no assignment of errors in the Circuit Court, and only such are assigned here,, as arise upon the record of proceedings before the justice— the judgment will be affirmed
    Aldridge was summoned at the suit of Hightower., to answer before a justice of the peace of Autauga County, upon a complaint of forcible entry and de-tainer.
    On the trial before the justice, a jury was impan-nelled, who rendered a verdict against Aldridge; and he took the case, by certiorari, into the Circuit Court.
    The justice of the peace, who tried the case, sent up with the proceedings, a writing in the nature of a 'bill of exceptions — stating that the plaintiff in the case before him, had .offered in evidence, his title -deed to the premises upon which the entry and de-tainer had been committed; and that, notwithstanding defendant’s objection, he had admitted it: and for a reason for thus admitting the title deed in evidence, he stated that defendant denied, that the plaintiff ever had possession of the premises, and the deed was to show that they had been sold, conveyed and delivered' to the plaintiff.
    The only entry in the Circuit Court was a judgment of affirmance of the justice’s decision, upon a motion that the justice should amend his return.
    The defendant took a writ of error to this Court, and assigned, for cause of reversal—
    1st. That there was error in the admission of the title deed of the said Hightower, as evidence, to the jury, as stated in the record.
    2nd. That the justice of the peace erred in not rejecting the said deed, on the motion of the plaintiff •in error.
    3rd. That the Court erred, in not reversing the justice’s judgment, for the cause above assigned.
    Peck, for the plaintiff in error — Clarke,, contra.
   HOPKINS, C. J.

— It has frequently been decided by this Court, that the proceedings before justices of the peace, in cases of forcible entry and detainer, •must, according to the statute law which authorises them, be treated as records, when certified to an appellate Court. — That, when such a case is removed into an appellate Court, the trial must be had upon the record without a declaration, or the intervention of a jury

The justice of the peace has no authority to enter on his minutes, any other evidence that was received or rejected, than such, the admission or rejection of which, was excepted to.

Such a case, then, can only be heard, in an appellate Court, upon an assignment of errors. An assignment is in lieu of a declaration, and without one the judgment must he affirmed.

jn case, it does not appear from the record, that any error Yvas assigned in the Circuit Court of Autauga County. The errors assigned here are upon the record of the proceedings before the justice of the peace, and such as might have been assigned in the Circuit Court. But this Court can take no notice of questions, which were not raised by an assignment of errors in that Court. And as no error was assigned there, the judgment of the Circuit Court is affirmed.

GQTJDTHWAITE, J., not sitting.

       ai. Rep. r.496.

       es sten-art Aik. Dig. SOo‘

       íio viner’s Ab.35.


author: COLLIER, J.

text:
    ROBERTS VS TAYLOR, et al.

      Practice in the Supreme Court.

      1. It is good cause for the dismissal of a writ of error, that it recites the names of persons, not parties to the suit, as shewn by the transcript.
    2. And this, even after appearance, and joinder in error.
    There was a motion to dismiss the writ of error, in the cause, on the ground of variance between it, and the transcript. The transcript disclosed the names of certain parties to the suit, and the writ of error recited the names of other persons than were therein embraced.
    Clarhe, for the motion — Peck, contra.
   COLLIER, J.

— The defendant in error moved the Court to dismiss the writ of error in this case, because it is variant from the transcript accompanying it, in this: the writ of error in reciting the names of t,he parties in whose favor the decree was rendered, (that is complained of,) discloses the names of one or more persons who were not parties to the proceeding in the Circuit Court.

It has been repeatedly determined by this Court, that where a writ of error is sued out by too few or too many plaintiffs, the Court cannot take jurisdiction of the cause, but is bound to repudiate it.— And this seems entirely conformable to the practice of the English Courts, up to the passage of the statute of 5 Geo. I, cb. 13. — (Vide 9 Viner’s Ah. 493.) — ■ In the same book, (504,) it is laid down that a writ of error lies only against parties or privies to the judgment complained of. By privies, we are to understand those who come in as the personal or real representatives of a party,

In Dunlap’s Practice, it is said great certainty was formerly required in making the writ of error agree with the record. The writ was the only authority for the action of the Judges: they were consequently confined to the record, which the writ authorised to be examined, without being licensed to amend, so as to bring about a correspondence between them. This strictness was relaxed by the statute of 5 Geo. I, already cited. And in England it has become the practice to amend the writ of error as a matter of course; and the name of a party has even been stricken out.

However promotive of justice, the enaction of such a statute might be in this State, we are notpermited to follow decisions made under it, but must be contented to move super antiquas vias, until it shall be the pleasure of the Legislature to invest us with more extensive powers.

This motion does not come too late, though the defendant’s counsel has entered his appearance, according to the rule of Court: — it is in time, if made even after joinder in error. And the writ being the warrant of this Court, to revise the decree of the Circuit Court, if it be defective, the Court, mero moiu, must discard the cause.

We are constrained to dismiss the writ of error.

      2voi ii42


author: HOPKINS, G. J.

text:
    KENNEDY VS DEAR.

      As to amendments of declarations.

    1. Where permission is given to amend a declaration, the plaintiff has his election either to file a new one, or to amend that previously in Court.
    2. A declaration, appearing in a record which shows an order of amendment and judgment, will be presumed to have been amended by alteration, though alleged tobe the original filed: and in such case, the defendant can not object, that a nen< declaration has not been drawn out.
    3. A defendant may plead, de novo, to an amended declaration, or rely upon a demurrer or plea to that originally filed.
    This was trespass on the case for slander. The writ was issued and declaration filed, to September term, eighteen hundred and thirty-four. As of that term appeared the following proceedings, to wit—
    “ Pleas and demurrers in short, by consent.”
    “Defendant, by attorney, demurs — first, to last count, for insufficiency, &e. — Secondly—to so much of the first, as alleges him, (plaintiff,) to be charged with every offence forbidden by the word of God.
    “ Jenkins & Bedford, att’ys for deft.”
    “ Pleas in short, by consent. — Not guilty, to all the counts. — Bagby & Bedford. — Issue joined. — Bethea.”
    At May term, eighteen hundred and thirty-five the cause was continued, and at Fall term, eighteen hundred and thirty-five, also continued, and permission given the plaintiff to amend his declaration on paying the costs of amendment.
    At Spring term, eighteen hundred and thirty-six, there was an entry, that the defendant's demuirer to the amended declaration being considered, the same mas overruled, and defendant had leave to plead over: and thereupon came a jury, who rendered a verdict for the plaintiff.

    The defendant took a writ of error.
    The case was arged
    Bedford, for the plaintiff in error ; and by Porter and Clarke, contra.
   HOPKINS, G. J.

— The pleadings and proceedings in this case, in the Court below, appear in the record in the following order, namely — a declaration, a demurrer, a plea, an order of the Court, at the autumn term, eighteen hundred and thirty-five, which was subsequent to that of which the declaration is entitled, giving the plaintiff in that Court leave to amend his declaration, and a final judgment of the next term afterward, overruling the demurrer to the amended declaration, and for the damages assessed by a jury.

The first error assigned here, and upon which all the others depend, is, that the judgment was rendered without a declaration. The argument in support of this assignment is, that the original declaration only appears in the record, which shows that the judgment was rendered upon an amended declaration. That as such a declaration as the judgment was expressly given upon, does not appear, the legal conclusion is, that none such was filed; and the judgment is therefore, as erroneous as if there were no declaration.

It has been contended, that an amended declaration is a new one, and ought to appear in the record, in addition to the original declaration which is abandoned, by obtaining leave to amend it.

The truth of the last branch of this proposition will depend upon the course a plaintiff may pursue, after leave to amend lias been obtained. He is not bound to exercise the privilege, and if he would decline it, a Court must act upon the cause of action set out in the declaration which he had filed. That the effect of an amended declaration is that of a new one, so far as the rights of a defendant can be-affected by it, we admit.

After an amendment has been made, the defend* ant in the action has- the same right to plead or demur to the amended declaration, that he had to answer the original. But the rights of defendants are as well protected, by permitting the amendments au-thorised by the Court tobe made by additions, or an alteration in any other respect, of the declaration upon file, as to require a second declaration. An amendment frequently consists-in the addition or' omission of a few words at most; and it would be unreasonable to require such an amendment to be; made by filing a new declaration.

If a Court should give leave to make amendments-which it had no power to authorise, the matter of them can be made to appear in a bill -of exceptions to the opinion that allowed them.

The Court of Appeals of the state of Kentucky has decided, that a plaintiff, with leave to amend, has his election, either to file a new declaration, or to amend the one he had previously filed. In the case of Cosby’s Ez’or vs Hite, the declaretion on file had been amended, and no objection for that cause was made in the Court of Appeals of Virginia. The objection there, (and the Court sustained it,) was that the defendant had been denied the right to plead de novo, to the amended declaration.

The English cases which have been cited, maintain this right of defendants; but they do not determine, whether a plaintiff shall make amendments by filing a new declaration, or by altering the one which he had delivered

The practice in this State has been regulated by. the rule which was recognised by the Court of Appeals of Kentucky, in the case that has been referred to, in Hardin’s Reports, (p. 85;) and the rule, we think, needs no amendment.

The right of a defendant to plead de novo to an amended declaration is clear, but he may waive it, and rely upon his demurrer or plea to the declarátion, as it was first delivered.

The legal presumption is, that the declaration in this case, was amended by making alterations in it. After it was amended, the defendant in the action must have relied upon the demurrer and plea he had filed to the declaration, as it was first delivered. We come to the conclusion, that he did so, because there is no other demurrer or plea in the case; and it appears, from the record, that his demurrer to the amended declaration, was overruled, and an issue between the parties was afterward tried by a jury. It seems that the demurrer and plea of not guilty were both filed at the same time, but the demurrer first in order. The plaintiff was not bound to take notice of the plea, till after the issue in law was disposed of. The irregularity in filing them together, has no effect upon the case. It became necessary to determine both issues, and both were disposed of in the order which the law prescribes.

No assignment of error questions the sufficiency of the declaration — and the view we have taken of the case, disposes of all the points which were made at the bar.

The judgment is affirmed.

       Reps. W

       36^ashai

      iWilson, ra’dvpr! 6S4-

       is Cali'sr i.


text:
    KENNEDY VS SPENCER.

      Points as to scire facias against bail

      1. In a proceeding by scire facias against bail, it is not necessa- ‘ ry to show the issuance of a ca. sa. to a County to which a defendant may have removed after arrest.
    2. Under the statute of this State, it is only essential, in order to sustain scire facias against bail, that a ca. sa. should be returned nonest inventus, when sued out to the County in which the defendant is arrested.
    3. Scire facias against bail should disclose the cause of action, with the certainty requisite in a declaration.
    .4. So, a scire facias, not setting out the bail bond, with suffi cient certainty, held defective.
    In error to the Circuit Court of Mobile County.
    This was a proceeding by scire facias against bail. ‘The scire facias ivas in the following terms—
    •“ The State of Alabama, Mobile County. To the .sheriff of Mobile County — greeting:
    “Whereas, heretofore, to wit, on the thirtieth day of May, in the year eighteen hundred and twenty-nine, a writ of capias ad respondendum, issued from the. Circuit Court of Mobile County, in favor of Samuel M. Spencer, returnable to the Fall term, eighteen hundred and twenty-nine, of the said Circuit Court of Mobile County, against Carter C. Hooper and Obadiah Hooper, in a plea of trespass on the case — upon which said writ was ah indos semen t, requiring the said sheriff to hold the said defendants to bail, in the sum of two hundred and three dollars ..and thirty-one cents, according to the statute in such case made and provided; which. said writ was, on the thirtieth day of May, A. D. eighteen hundred and twenty-nine, delivered to Theophilus L. Toulmin, then sheriff of said County, to be executed and returned : and whereas the said Sheriff did, on the thirtieth day of May, A. D. eighteen hundred and twenty-nine, by virtue of the said writ, arrest the bodies of the said Carter C. Hooper and Obadiah Hooper, who, together with Joshua Kennedy, gave to the said sheriff a certain bond or obligation, commonly called a bail bond, in the penal sum of four hundred and six dollars sixty-two cents, conditioned that the said Carter C. Hooper and Obadiah Hooper appeared at the Circuit Court of Mobile County, next thereafter to be holden, and then and there answer to Samuel M. Spencer, in a plea of trespass on the case, and perform and abide by such order and-judgment as might be rendered in the premises ; and then and there delivered the said bond to the said sheriff; — who, thereupon discharged the bodies of the said Carter C. Hooper and Obadiah Hooper upon such bail. Which said writ, together with the said bail bond, the said sheriff afterwards returned to the clerk of said Court, at the return term thereof, with an assignment on the back of said bond, to the said plaintiff, signed by said sheriff, in pursuance of the statute in such case made and provided : And whereas, afterwards, to wit, at the term of the Circuit Court, held in and for the County of Mobile, on the second day of December, eighteen hundred and thirty, by- the consideration of the said Court, the said Samuel M. Spencer recovered against the said Carter C. Hooper and Obadiah Hooper, the sum of one hundred and sixty-one dollars and seventy-five cents, damages, and fifteen dollars and sixty-six cents, costs and charges by him, about his suit expended : whereof the said Carter C. Hooper and Q-badiah Hooper are convicted as appears to us of record: and although judgment be thereof rendered, and our writ of execution thereupon issued, commonly called a writ of capias ad satisfaciendum, on the twelfth day of January, eighteen hundred and thirty one, directed to the sheriff of Mobile county, which was duly delivered to Theophilus L. Toulmin, then sheriff of Mobile county, to be executed according to law — yet the said Carter C. Hooper and Obadiah Hooper have not abode the judgment aforesaid, but ever since the giving of the same have avoided, so that they could not be found; and the aforesaid sheriff hath returned upon the aforesaid writ, into our said Court, on the fourth Monday after the fourth Monday in March, eighteen hundred and thirty-one, where the said writ was made returnable, that the defendants in said writ are not found in his said county to satisfy ; and so returned said writ in no part satisfied: and tire said Samuel M. Spencer says, the said judgment is still altogether unsatisfied, and remains in force — whereby the said bond and the condition thereof have become forfeited — all of which said proceedings now remaining of record in this honorable Court — reference being thereto had will more fully and at large appear : — whereof the said Samuel M. Spencer has besought a remedy in this behalf. — Mow, to the end that justice be done, you are hereby commanded to make known unto Joshua Kennedy, who was bail and security for the said C. C. Hooper and Qbadiah Hooper upon the original process, whereupon the judgment aforesaid was given, not only for their appearance to answer to the plaintiff upon the process aforesaid, but that they should abide by, and perform the judgment and order of said Court, that should be given thereon,— that he be and appear before the honorable the Judge of the Circuit Court of Mobile county, at the Court to be holden in and for said county of Mobile, on the fourth Monday after the fourth Monday in October, eighteen hundred and thirty-one, to .shew cause, if any he can, wherefore the said Samuel M. Spencer should not have judgment against him the said Joshua Kennedy for his damages and costs aforesaid, and further to do and perform what our said Court shall consider of him in the premises — and have you then and there this writ, with your doings thereon.”
    To the scire facias,i he defendant filed a demurrer, which being overruled, he relied upon the pleas—

      First — Nul tiel record.

    Secondly — That the defendants in the original action, on which defendant to the scire facias became bail, at the time of the commencement of said action, down to the time of filing the plea, — were resident citizens of the county of Pickens, and that no writ of capias acl satisfaciendum, had ever been issued against said defendants to the county of Pickens, &c.
    There were issue to the first plea, and demurrer to the second; which demurrer was sustained, and judgment given for plaintiff on the first plea.

      Stewart & 'Thornton for plaintiff in error — Gayle f Vandegraqfe, contra.
   COLLIER, J.

— The defendant in error sued out a scire facias against the plaintiff, as the bail of Carter C. Hooper and Obadiah Hooper, in the Circuit Court of Mobile county, against whom the defendant had theretofore prosecuted an action to judgment, and had a ca. sa. issued, which was returned, “ not found.”

Many points have been made for the plaintiff in error, — - we shall, however notice but two, considering them as decisive of the case.

In the first place, it is insisted, that the ca. sa, upon the judgment against the Hoopers, should have issued to the county of Pickens, in which they resided, and that the Circuit Court erred in sustaining a demurrer to the plea of the plaintiff, which alleged their residence in, and the non-issuance of á ca sa. to that county.

At the common law, it was necessary, in order to charge the bail, that a capias ad satisfaciendum should be sued out, and directed to the sheriff of the county in which the defendant was arrested, and be returned non est inventus.”

Our statute directs, that the plaintiff shall not proceed against the bail, “until execution hath been returned, that the defendant is not to be found in his proper county.”']

Stress has been laid in argument, upon the word “proper,” as changing the practice in this particular; and it is argued, that by the “ proper county,” we are to understand the county of the defendant’s residence. We think otherwise, and understand it to refer to the law as it existed at the passage of the act; and to be declaratory of it. The proper county for the purposes of the action must he taken to be. the County in which the defendant is found, when suit is brought; so that if there are several defend-ants against whom a suit is prosecuted to judgment, arrested in as many different counties, a ca. sa. could not properly issue against all, to the county where the judgment was rendered, but one should issue to each county in which a defendant was arrested.— Nor can a change of residence, pending the action,, make it necessary to follow a defendant, with process, to any county in which he may have settled himself.

It is further objected, that the bail bond is not so-set forth or described in the scire facias, as to have authorised a judgment against the plaintiff; and that the defect is not cured by a declaration.

The only recital in the sci.fa. is as follows', — - “You-are hereby commanded to make known unto Joshua Kennedy, who was bail and security for the said C. C. Hooper and Obadiah Hooper, upon the original process, whereupon the judgment aforesaid was given, not only for their appearance to answer to the plaintiff upon the process, aforesaid, but that they should abide by, and perform the judgment and order of said Court, that should be given thereon— that he be and appear before, &c. to shew cause., &c.”

In the case of Toulmin vs Bennett & Laidlaw, this Court decided, that a scire facias which recited the liability of the bail in terms precisely similar, could not be sustained. And that a sci.fa. unaided by á declaration, subserved the two-fold purpose of a writ and declaration, and should contain the requisites ©f both. — That the plaintiff in a sci fa. might aid a defective writ, by declaring, if he thought proper but that he could not recover, unless the record disclosed a good cause of action.

The English practice is to state the bail bond, and set out the judgment against the principal, proutpa-tet per recordum. This strictness was held not to , . , ., be necessary, in the case just cited, — and it was there considered sufficient, if the sci fa. disclosed a cause of action, with the certainty essential to a declaration.

In as much as the record does not sufficiently disclose a legal liability against the plaintiff, the judgment is reversed, and the cause remanded, if it is desired.

GOLDTHWAITE, J. not sitting.

       Dunlap’s iac'

       Aik. Dig. 53‘

       & 320-

      2Dun!aps Pi-. 1081.


text:
    BLAIR, VENDER & WISCOTT VS ASBURY.

      As to evidence upon the common counts in assumpsit.

    X. Where one has declared in assumpsit in two counts — upon a special agreement, and upon a quantum meruit, for work and labor, — the statement ofthe plaintiff’s counsel, in his hearing, that by reason of the absence of a witness, the special contract could not be proved, but that it would be waived, and they would proceed to trial upon the common count, — would not be sufficient to exclude evidence, adduced in support of the common count.
    In error to the County Court of Mobile county.
    This action was assumpsit, by Asbury, for the recovery of a sum of money, due upon a contract for the building of a house.
    The plaintiff declared in a count upon a special agreement between the parties, for the building of a house, and also in a common count upon a quantum meruit.

    The plea was non assumpsit, and verdict and judgment were rendered for the plaintiff.
    The bill of exceptions showed — that after issue was joined, the attorney of the plaintiff, in the presence and hearing of Asbury, stated to the jury, that the declaration contained several counts — the first upon a special contract; which, on account of the absence of one Walker, a witness, he would waive, and proceed upon the quantum meruit count.
    The defendants’ counsel objected to the introduction of evidence under the quantum meruit count, be•cause the defendants’ counsel admitted there was a special agreement, in the hearing of plaintiff, which the latter had not denied. But this the Court overruled.
    The Court was then requested to charge the jury, that as the plaintiff’s attorney had admitted in the hearing of his client, which admission was not contradicted by him, that there was a special contract— the plaintiff could not recover under either count. — - This charge the Court refused. To all which defendants excepted.

      Gayle & Yandegraaff1 for plaintiff in error — Slew-art & Thornton, contra.
   HOPKINS, C. J.

— This was an action of assump-sit, The declaration in the case contains a count upon a special agreement, by which, the plaintiff in the action had undertaken to erect a house for the defendants ; and also a count upon a quantum meruit, for work done in framing a house for the defendants, at their request.

Upon the trial on the general issue, the counsel of Asbury, in his presence and hearing, stated to the jury that one of his witnesses was absent, and that he could not, therefore, prove the count uponthe special contract, and would waive it, and proceed on the quantum meruit.

To the evidence which Asbury offered, the defendants objected, upon the ground, that the statement of his counsel admited there was a special agreement between the parties, the existence of which, .rendered any proof under the count on a quantum meruit, inadmissible. The Court overruled the objection, for which the defendants excepted; and one .of the assignments of error here, makes it necessary to-enquire into the correctness of that opinion of the Court.

This objection is supposed, by the counsel of the plaintiffs in error, to rest upon the principle, — which we admit — that where work has been done under a special agreement, which has not been reduced by performance to a mere duty, and upon which the proof shows the plaintiff can sustain a proper count, he cannot be allowed to recover on a general or common count. The statement of the counsel was his opinion of the effect of the facts, he believed could be proved by the absent witness. Such an opinion is not equivalent to the opinion of a Court formed upon the evidence, that work has been done under a special agreement, which is still in force, and upon which the plaintiff might sustain a proper count. The opinion of the counsel would have had no effect against the opinion of the Court, if the absent witness had been present, and the Court had determined that his testimony did not prove the special count. The statement of the counsel did not include facts, upon which the Court might have decided that there was such a special agreement as precluded the plaintiff from maintaining an action, except on a special count; and in the opinion of the counsel it was not asserted there was such an agreement as confined the plaintiff to a remedy upon a special count. There are cases, in which, after a plaintiff had attempted and failed to prove a special agreement, he was allowed to abandon his special coant, and resort to a general or common one.

^110 a<:temPfc wei’e made in such cases, to prove the special count, the right of a plaintiff to give evidence in support of his common counts, would be clear: and whether he ought to be confined to his special agreement in any case, can be determined only by the Court, upon the proofs in the cause.

The other assignment of error was made upon the refusal of the Court to give the following instructions to the jury, upon the request of the counsel of the plaintiffs in error, “that as the plaintiff’s attorney had admited in the heaving of his client, which admission was not contradicted by him, that there ivas a special contract between the parties, which he could not prove on account of the absence of a witness, the plaintiff could not recover under either count.”

The reasoning which has been relied upon to sustain the first opinion of the Court, shows also, that the instructions were properly refused.

There is an additional objection to the charge, which the Court refused. The Court was requested, in effect, to decide, that it was proved there -was a special agreement between the parties. If the charge had been given, there would have remained nothing for the jury to ascertain: the effect of an admission made by a party on the trial of a cause, to a jury, is that of evidence, and the fact which it proves must be left to a jury to ascertain.

The question, whether Asbury was entitled to recover on any count, because he abandoned the work' before he had completed it according to his contract, does not arise from the record. What was the legal effect of the evidence in the cause, the Court below was not instructed to determine.

The judgment is affirmed.

       l23*?™ Ev. 96, & Pbk2¿ep 181,182-, p. 139.


text:
    GAYLE VS AGEE, ex’or.

      Of amendments of judgments.

    1. This Court will not amend a judgment of affirmance at a sub» sequent term to that at which rendered, and award damages, on the production of a copy of the writ of error bond, and the suggestion, that the bond, or a copy, was not in Court, when the judgment was affirmed.
    On motion to the Court, to amend a judgment, rendered by this Court, on certificate, at June term, eighteen hundred thirty-seven.
   COLLIER, J.

— In this case, the counsel for the defendant produced in Court an authenticated copy of a bond, executed by the plaintiff, and others, as his sureties, for the prosecution of a writ of error.to this Court, and moved the Court to amend the judgment of affirmance, rendered at the last term, so as to allow him his damages, alleging that the bond, or an attested copy was not then in Court. ,

Our statute requires, that the clerk of a Court, from whence a case comes here, must send up an attested copy of the bond with the transcript.

If the clerk omits this duty, the defendant may have a certiorari, to bring up a copy of the bond; but if, instead of pursuing this course, he allows his cause to be heard and decided, he comes too late, at a term subsequent to the rendition of the judgment, to ask this Court to amend its entry, so as to allow him his damages— upon the suggestion, that the record on which this Court acted, was incomplete.

The motion is therefore denied.

GOLDTHWAITE, J., not sitting.

       Aik. Dig. 255.


text:
    WORSHAM VS GOAR, adm’or.

      As to actions hj administrators.

      As to notice to indorsers.

      As to depositions to tahe testimony.

      As to practice upon the argument of a cause.

      As to liabilitg of indorsers.

    1. The plea of non assumpsit, to an action by one, as administra•’ tor, admits the plaintiffs’ right to sue in that Capacity ;■ and’ obviates the necessity of proof to that point.
    2. In cases whore it is necessary to resort to the post office, as a medium of giving notice to an endorser, it should be shewn, that notice was sent lo the office nearest the party’s residence, or that through ignorance of such place of residence, proper diligence being used, notice was sent to a supposed place of residence, or to where a party was in the habit of receiving his letters.
    3. To authorise testimony to be used on a trial at law to be taken by deposition, an affidavit is essential, showing the grounds rendering the deposition necessary.
    4. And an affidavit cannot be dispensed with, by shewing that the adverse party had notice of the issuance of the deposition.

      5. A commission to take testimony by deposition cannot be issued in blank ;■ — but before leaving the clerk’s hands, must be directed to one or more persons.
    6. A plaintiff does not lose the right to open and conclude the argument of a cause, by the failure of the defendant to offer' evidence.
    7. That the second indorser of a promissory note had neglected to pay it within three years, after maturity, — held to be no-discharge of the first indorser, in an action by the former against the latter.

      Oil a writ of error to the Circuit Court of Russell county.
    This was an action of assumpsit, by Goar, the administrator of Ford. The declaration alleged, tka t on the nineteenth day of January, A. D. eighteen hundred and thirty-one, one EsraB. Jones made and delivered to the defendant, a promissory note, payable to the order of the defendant, at the Branch of the State Bank in Milledgeville, for the sum of five hundred dollars; and which said note the defendant indorsed to the plaintiff’s testator. That the note was regularly protested for non-payment; and was subsequently paid by the plaintiff, to the holders. And this action was to recover the amount of the note from the first indorser.
    The record showed — First—a demurrer; on which no action appeared to have been had. Secondly — • non assumpsit. And afterwards the verdict of a jury in favor of the plaintiff, and a bill of exceptions.
    On the trial, the plaintiff produced a, transcript of letters of administration granted to him on the estate of Ford, by the Inferior Court of Baldwin county, in the State of Georgia — to the authenticity of which, the defendant objected; but which objection the Court below overruled.
    The note sued upon was then read in evidence, and proof made, that when it became due, a demand. of payment was made at the Bank where payable ; and a written notice deposited in the post office at Milledgeville, addressed to the defendant at Columbus, Georgia; but no proof was adduced, that the defendant resided at Columbus, or was in the habit of receiving his letters there.

      The plaintiff then, notwithstanding ¿be objection oftbo defendant, but which ¿be Court overruled,— reda as testimony, the deposition of a witness. The deposition was taken after due notice, but was objected to — first, because no affidavit bad been made, that the witness resided out of the State, or was material: secondly, because the commission to take the testimony liad been issued in blank' — the commissioners’ names not having been inserted in the same previous to its leaving the clerk’s office.
    The defendant having .introduced no testimony in the cause, bis counsel claimed the privilege of opening and concluding the argument, — which the Court disallowed.
    The presiding Judge, on it appearing in evidence that the note had not been paid by plaintiff’s intestate until some time after maturity, was requested to charge the jury, that in order to charge the defendant, the note should have been paid immediately by the second indorser ; and if he suffered the holders to retain possession of the note for three years after its maturity, it amounted to a discharge of the defendant: which charge the Court refused.
    And the defendant excepted.
   COLLIER, J.

— The defendant in error, sued the plaintiff in assumpsit, in the Circuit Court of Russell.

From the record, it appears, that the defendant’s intestate, as the second indorser of a promissory note, (which had been put in circulation,) paid it after default by the maker, and sued the plaintiff, as the first indorser. In the record we find a demurrer in short, by consent, and immediately thereafter the •plea of non-assumpsit, in short.

Wo disposition appears to have been made of the demurrer, but the case was tried on an issue of fact, and a verdict rendered for the defendant, from a judgment, on which the plaintiff prosecutes a writ of error.

On the trial, the defendant offered in evidence a transcript from the records of the Inferior Court of the county of Baldwin, in the State of Georgia, of the grant of letters of administration to him, on the estate of his intestate, which, notwithstanding an objection by the plaintiff’s counsel, was read to the jury-

The defendant also proved, that when the note fell due, a demand was made for payment, at the place where it was payable, in the State of Georgia, and that notice of its non-payment was given to the plaintiff, by depositing a letter in the post office, at Milledgeville, addressed to him, at Columbus, Georgia. But it was not shown that the plaintiff resided at or near the latter place, or was in the habit of receiving his letters there.

The defendant also read to the jury, the deposition of a witness, though there appeared, no affidavit of his materiality, non-residence, or absence from the State; and though it appeared further, that the commission under which the deposition was taken, was issued in blank, and the commissioners’ names thereafter inserted. — To the admission of all which testimony, the plaintiff, by his counsel objected — and, his objection being overruled, he excepted to the decision of the Court.

The plaintiff, having offered no evidence, insisted upon the right to open and conclude the argument to the jury; but was overruled in this also, and again excepted to the opinion of the Court.

It is needless to enquire, whether the evidence of fered to prove the representative character of the defendant was properly received. — It was not incuin-bent on him, to introduce any proof to that point.— The plea of non-assumpsit admitted his right to sue, as the administrator of him, whose estate he professed, by the pleadings, to represent. All evidence, as to this point, was superfluous, and whether improperly received or not, could not prejudice the plaintiff: «and he cannot be heard, to allege it in error.

Where the indorsers of a promissory note reside at •a place different from that where the holder of a promissory note lives, or where it is payable, it is usual and proper to give notice of its non-payment to all whom it is desired to charge, through the medium of the post-office. When this means of communicating a notice is resorted to, the letter should be sent to the post-office nearest the residence of the party to be affected by it: unless it could be shewn, that he was in the habit of receiving his letters at another office.

But, if the holder of paper does not know the re7 sidence of a prior party, and uses proper diligence to ascertain it, and sends his notice in due time, to' the place at which he is induced to believe he resides, it is quite sufficient, although he may live elsewhere. Chapman vs Lipscomb,

In order to have made the notice to the plaintiff, available, the defendant should have shewn, either that the post-office at Columbus was nearest his place of residence, or that hiss intestate, or the holder of the note at its maturity, being ignorant of his place of residence, used proper diligence to learn where it was; and that the result of his inquiries was the persuasion that it was at or near Columbus. And the requisition of the law would have been satisfied, had he have shewn, that, though that was not his nearest post-office, there lie received his letters. — M’Grew vs Toulmin. But, neither of these facts being shewn, the Court should have rejected the evidence, as irrelevant.

In respect to the deposition which ivas taker at the instance of the defendant, without an affidavit, previous to the issuance of the commission, shewing the materiality, non-residence or absence from the State, of the witness, it may suffice to remark, that our statutes, which authorise testimony to be taken by deposition, to be read on trials at law, all require that an affidavit shall be made, of the particular reason which renders it necessary to take it.

This pre-requisite, as was supposed by the Circuit Court, cannot be dispensed with, by shewing that the adverse party had notice, and might have cross-examined the witness had he desired. It is incumbent on the party obtaining a commission to examine witnessess, to give notice to his adversary, in addition to making the affidavit, and it cannot be dispensed with, unless expressly or impliedly waived ; for the statutes are alike imperative, in regard to either step. What would have been the effect upon these irregularities, had the plaintiff have cross-examined, is another question — which, as it is not pre-sen ted by the record, need not he here considered.

The commission to take a deposition, must be perfect when it leaves the hands of the clerk, and cannot, afterwards, undergo an alteration, but by consent. He is directed to issue it to “ one or more persons,” to take and receive the deposition of the witness named in it. If sent forth in blank, it, of. course, issues to no person, and does not satisfy the requirement of the statute. And, though the clerk give his consent to one receiving a commission to examine witnesses, to fill all blanks, this will not legalize the act; for his authority extends not beyond the time when it leaves his hands.

It was the practice, ever since the organization of our State government, up to the July term, eighteen hundred and twenty of this Court, for the party holding the affirmative of an issue, to open and conclude the argument to the jury. At that term, rules wTere adopted, in lieu of those pre-existing, and the previous rule, declaring such to be the practice, was omitted. The nineteenth rule, for the government of the practice “in the Circuit and County Courts,” directs, “If the counsel for the plaintiff waives the right of opening the argument, he shall not have the right of concluding.” This rule, if it does not give the right to a plaintiff to open and conclude his argument, is certainly founded upon a concession, that he already had that right. So that in the refusal to allow it to the defendant below, there is no error.

The judge decided correctly, in refusing to instruct the jury, that a neglect, by the defendant’s intestate, to pay the note within three years after its maturity, amounted to the discharge of the plaintiff. Time can only be material, as furnishing a bar'to a recovery. The statute of limitations is not relied on, nor indeed can it be, successfully.

For the error, in the decision of the Circuit Court, in regard to the notice of non-payment of the note, and in regard to the commission and deposition, the judgment is reversed, and the cause remanded.

GOLDTHWAITE, J., not sitting in this case.

       sanni n.

       tiJohns.R.

       Portei-V432

       Dig.

       ... .


text:
    THE STATE OF ALABAMA VS M’DONALD.

      Points n/pon the statute of 1812,'" on the subject of aiding a rebellion of slaves.

    1. The act of 1812, upon the subject of abetting the rebeliion of slaves, embraces four distinct descriptions of offence,—
    First — For a free person to be aiding and assisting, or in' any wise concerned with, a slave or slaves, in any actual rebellion or conspiracy.
    Secondly — for a free person to be similarly concerned in' any rneditated rebellion or conspiracy.
    Thirdly — For any free person, in any manner, to advise, plot' or consult with any slave or slaves, for the purpose of encouraging, exciting, aiding or assisting any such insurrection or' rebellion.
    Fourthly — For any free person, in any manner, to advise,plot, or consult with any slave or slaves, for the purpose of encouraging, exciting, aiding or assisting an intended- insurrection or rebellion.
    2. Each of the foregoing classes embraces several offences — as,in the first class, “aiding and assisting a slave or slaves,” &c.is one offence; to be, “in any wise, concerned with a slave or slaves,?5 &c. is another; and so each category is susceptible of sub-division.

      8. To render one guilty of the offence of “aiding and assisting &c. a slave or slaves, in a meditated rebellion or conspiracy,-, it would not be essential that a rebellion or conspiracy should1 be first meditated by a slave: — if a free person and a- slave are’ concerned, it is immaterial, with whom the scheme may have originated.
    4. But to make a free person guilty of advising, plotting or con- - suiting with a slave or slaves, for the purpose of encouraging any insurrection or rebellion under that áct, there must be proof of an actual or meditated rebellion, by a slave or slaves.

      5. Any words or acts of a free person, which manifest a design to effect an insurrection or rebellion, if employed with a view to such result, would, it seems, be sufficient to authorise a conviction for advising &c. an intended insurrection, &c. without the intention originating with a slave, or his concurrence or assent being obtained.
    6. And such intention need not be shewn by direct and positive proof, where inferible from facts and circumstances in them-selyes indicating it.
    7. That advising, plotting or consulting, for the purpose of encouraging, exciting, aiding or assisting an insurrection or rebellion, make treason in other nations, which offence is recognized under a peculiar definition in the constitutions of the United States and of Alabama, — does not preclude the legislature from denouncing these acts as a distinct offence, punishable capitally.
    8. The right of protection belongs to man in his natural state— It extends to political communities, and is the foundation of the moral power to punish crime, or provide against its commission. The right to punish an offence actually committed, includes the right to prevent, by imposing adequate sanctions.
    The prisoner was indicted in the Circjuit Court of Lowndes, in an indictment with four counts.
    In the first and third it was charged that he “ did maliciously, feloniously and traitorously advise, plot and consult with Moses, a slave belonging to one Jesse H. Robertson, for the purpose of encouraging, exciting and aiding an insurrection against the laws and government of the State of Alabama, &c.”
    In the second and fourth counts, the term “ rebellion” was substituted for “ insurrection.”
    The second concluded as the first; and the third and fourth charged the offence to have been commit-ed “ against the people,” instead of “ against the laws and government.”

      The prisoner plead not guilty, and the case went to the jury. On the trial, the presiding Judge reserved many points, which, after judgment, he referred to this Court for decision, as novel and difficult. So many of them as are material to be considered, may be stated from the record as follows:
    “ The State’s counsel introduced witnesses, who gave evidence, that the master of the slave Moses, in consequence of suspicions entertained by him, directed the slave Moses, that if the prisoner should come to him, that he should conduct him to a particular spot, and there hold the conversation with him. That in consequence of this the negro did conduct the defendant to that spot, and held the conversation with the defendant, which was detailed in evidence, in the hearing of his master and another, and with the knowledge that they were so concealed, and for •the purpose of detecting the defendant. In this con-' versation the defendant ■ said the negroes ought to rise, and if they would he would head them ; — that" they had hard masters. That' they must raise five hundred men, but he would start with three hundred men. That a negro in the neighborhood, named Frank, was to furnish him with a horse. The defendant promised to give the rifle he had with him to Moses, when they started : he shewed him how to cock it, and snapped it two or three times. The defendant told the slave Moses, that they would go to Mobile, and that if they did not like that; they would then go to Pensacola — that, that was a weaker place. That they could get arms and ammunition there, and could press a ship, with which they could go to Texas. That Texas was a free place, and that they might have their freedom there. That they would he joined by other slaves on their way to Mobile. The defendant' urged the slave to go home with him, which the negro declined, but promised to come next evening to his house. The slave Moses, the next .evening went, with his master and several gentlemen of the neighborhood, to the place of the defendant’s residence. These gentlemen concealed themselves, and the slave was sent for. the defendant, who was conducted to a spdt near them, and there held a conversation with the slave. The slave acted under the direction of his master and others, and his questions to the defendant were prompted by instructions from them, and were for the purpose of discovering the defendant. The defendant then told the slave ■that he must get him one thousand men, but he would ■start with five hundred. . That they wrould make a forced march to Pensacola, take that, press a ship, and sail to Texas. That it was not safe to stay in Florida, as the United States would reach them :— that he knew how to man a ship := — they could enjoy freedom in Texas. He stated they could get guns from their masters, with ammunition and horses, and escape to Pensacola, and that Moses should have his rifle. The defendant said there was no white men engaged — he would head them, and that Frank .should be second in command, and Moses third in .command.”
    “ It was in evidence, that the defendant, the day before the first conversation herein stated, was at a retail store and drank freely of ardent spirits,” &c. on •the afternoon of the days of the conversations above ^detailed..

      “ The witnesses all stated they thought him sober during the time he was holding these conversations with the slave. The master of the slave stated, that the slave was faithful and obedient, and that the earliest information was received from ■ him. That in all these conversations after the first information to the master, he was the instrument of his master, for the purpose of detecting the defendant.

      “ The witnesses all stated that there was no disturbance in the county among the slaves ; — that there was no insurrection or rebellion there; and that there was no evidence of any preparation on the part of the defendant, or any illegal conduct further than could be gathered from these conversations. They all denied any knowledge of any further tampering or advice or counsel, further than could be deduced from his conversations.”
    “ The counsel for the defendant, asked the Court to charge the jury, that if they believed the conversations and plans of the defendant were not for the purpose of encouraging, exciting or aiding an existing rebellion or insurrection against the laws, government or people of the State of Alabama, — he ought not to be found guilty under this indictment which was refused by the Court, and the question reserved as novel and difficult, for the decision of this Court.

      “ The counsel for the prisoner asked the Court to charge the jury, if they believed that in the conversations detailed in evidence, between the slave Moses and the defendant, the slave had no participation in any illegal design, and did not advise, plot or consult, for the purpose stated in the indictment, the prisoner ought not to be found guilty. This charge the Court refused to give; but charged the jury, that whatever the purposes of Moses might have been, if the defendant had the purpose of encouraging, exciting and aiding an insurrection or rebellion, although at the time contemplated by himself only against the government, people or laws of the State of Alabama, and communicated the same to Moses, with the view of securing his participation, then the defendant was guilty.” The refusal to charge as requested, and the charge given, were reserved, and referred to this Court, for its decision, as presenting questions of law, both novel and difficult.
    This case was argued by

      Campbell for the prisoner; The Attorney General, contra.
   COLLIER, J.

— The first inquiry which invites our consideration, in examining this case, is this — ■ What offence does the indictment-charge'?

For the prisoner, the sufficiency of the indictment has not been controverted; but it is insisted, that its allegations are such as to have inhibited his conviction upon the evidence which went to the jury against him. To test the correctness of this conclusion, reference must be had to the statute upon which the indictment is founded : — That statute is as follows : “ If any free person shall be aiding and assisting, or in any wise concerned with any slave or slaves, in any actual or meditated rebellion or conspiracy against the laws, government or people of this territory, or shall in any manner advise, plot or consult with any slave or slaves, for the purpose of encouraging, exciting, aiding or assisting any such insurrection or rebellion, or intended insurrection or rebellion, such free person so offending, and being thereof convicted, shall suffer death.”

The first branch of the act embraces two distinct descriptions of offence.

1st. For a free person to be aiding and assisting, or in any wise concerned with a slave or slaves, in any actual rebellion or conspiracy.

2d. For a free person to be similarly concerned in any meditated rebellion or conspiracy.

The second branch of the act, is alike comprehensive, and subjects to punishment—

1 st. Any free person who shall in any manner advise, plot or consult with any slave or slaves, for the purpose of encouraging, exciting, aiding or assisting any such insurrection or rebellion.

2d. Any free person who shall in any manner advise, plot, &c. an intended insurrection or rebellion.

To make “ a free person” guilty of the first offence prescribed by the first branch of the statute, it is necessary that there should be an “actual rebellion” To make out the second offence, it is necessary that the offence should not have developed itself by action. : The term “ meditated,” connected with the word actual,” by the disjunctive conjunction or, must, from the relation in which it is found, be held to mean something not yet done — something in a state of incubation, yet to discover itself, something brooded over, and perhaps talked about; for if there was an entire silence it would be difficult to ascertain the feelings of the heart or the operations of the mind. And thus considered, it must be held to limit the substantives “ rebellion or conspiracy” in its connection, to a scheme in fieri, which by no overt act has seen the light of day. The rebellion or conspiracy supposed to be meditated, need not originate with a slave or slaves — it may be prompted by a free person ; but to make out the offence, it is necessary that a slave or slaves should lend to it a favorable ear. If the words aiding and assisting were alone employed, it would be necessary to shew that a slave or slaves were the prompters or prime movers in a plan for rebellion: for to aid and assist, always implies that there is a principal to receive aid and assistance. But the words in any wise concerned with,” are used, and very clearly shew, that it is not necessary that a “ rebellion or conspiracy” should be first me-dilated by a slave; it is enough for a free person and a slave to be in any manner concerned in it, no matter which may claim the honor of having originated it.

The terms “rebellion or insurrection,” employed, in the second branch of the act, are used as synoni-mous; this is sufficiently indicated by the terms “ any such insurrection or rebellion,” — and are referible as the words “.any such” prove, to the first branch of the act.

To make a free person guilty of advising, plotting or consulting with any slave or slaves, for the purpose of encouraging, &c. any insurrection or rebellion, such as the first branch of the act contemplates, it would be necessary to shew that a slave or slaves have already assumed a rebellious or insurrectionary attitude, or else, that they meditate the assumption of such a position.

It has been already shewn what would constitute a meditated rebellion, let ns now inquire what is essential to an actual rebellion or insurrection. These terms, in their ordinary acceptation, mean a resistance to the established order of things.

However regardless one may be of the dictates of social duty,- or reckless of civil order, so long as he locks up, in his own breast, his unpatriotic and wicked feelings, or merely gives vent to them by words, he rebels not against the laws and government of his-country. But, when, having indulged these sentiments, for a period sufficiently long to prepare him for active movements, setting at defiance the duties of the man and the citizen, he places himself in hostile array to the quiet and security which society professes to guarantee to its members — he is then, and not sooner, in a state of rebellion to the latos, government or people of the State.

In regard to the second offence, denounced by the second branch of the statute, it may be remarked, that a mere intention, undiscovered by any thing said dr done, or shewn merely by loose and casual remarks, would not prove an intended rebellion. The intention, being the chief constituent of the offence, must be proved by some developement of less equivocal import. And, in ascertaining what evidence shall be held to' indicate the intention, we know of no source, to which we can more appropriately resort, for information, than to the decisions which have been made upon the statute 25 Edw. III. (ch. 2,) which makes its treason to compass or imagine the death of the king and other members of the royal family.

In Kel. 17, and Fost. 196, it is held, that if divers-persons meet and consult how to kill the king, this is, in every one of them, an overt act of compassing or imagining his death, although no method of killing him be agreed upon. So, in 1 Hawk. ch. 20, and in H. P. C. 127, it is said, that a knowledge of a design to destroy the king, if accompanied with-any circumstance of assent or approbation, is an overt act of compassing, or imagining his death. And in the case of the regicides, it was decided that if a man accidentally present at a meeting, holden to consult the destruction of the king, go a second time to such a meeting, this is evidence of his assent to, or approbation of the traitorous design. See also, 1 Hawk. ch. 17 — Kel. 22-23 — Fost. 200.

These authorities very fully maintain, that acts or words, which manifest a design upon the king’s life, or are calculated to excite, in others, such a design, are proof of compassing or imagining his death. These and similar developements, when directed to that end, we should consider as indicating an intended insurrection.”

It has been already remarked, in reference to the offence we are considering, that the intention is the essence of it; but the statute no where (even by a just interpretation,) requires that the intention should originate with a slave or slaves, or that he or they should even intend a rebellion or insurrection. If a free person shall in any manner advise, &c. with any slave or slaves, for the purpose of encouraging, &c. a rebellion or insurrection intended by him only, he is guilty of this offence, though the arguments addressed to the slave may not have been such as to command his approbation.

To intend, must be understood to mean the same, with design or contemplate. A free person need not intend unconditionally — the intention is well made out, when it appears that he designed an insurrection or rebellion, if he could exert a sufficient influence over the slaves, to arouse them to action, and that he employed arguments, or used other means, to effect that result.

The free person, whether vdiite or colored, who. seeks to sow in the bosom of our slaves, the seeds of disaffection, and urges them to resist by force, the authority of their legitimate masters, renders himself obnoxious to the penalties of the law. And even he who professing to be prompted by the pure spirit of Christianity, shall proclaim to our slaves the doctrine of universal emancipation, and denounce slavery as incompatible with the sublime and elevated morality of revelation, and thus scatter broad-cast the seeds of discontent, and estrange the affections of the slave from his master, with the intention of arousing him to the effort to break by force the bonds of servitude, renders himself a subject for criminal justice. He whose course is thus characterised, must be supposed Quixotic indeed, who, when he had employed the means directly calculated to achieve a result so disastrous, could hope to escape the retribution of justice, by declaring to a jury the purity of his purpose— the integrity of his motive. The intention here, as in every other offence of which it is a constituent, need not be shown by direct and positive proof, where it is inferable from facts and circumstances, in themselves manifest.

It may be further remarked, in reference to the entire statute, that the terms it employs for the purpose of defining the crimes declared, are usually connected by the disjunctive conjunction, or, as to “advise, plot or consult,” “for the purpose of encouraging, exciting, aiding or assisting.” To advise, is one offence, to plot another, to consult a third, if done for the purpose of encouraging or exciting or aiding or assisting. So that it will be seen that the statute, though it makes but four descriptions of offence, yet each of these classes embraces in itself, several crimes of equal grade.

Having thus determined the proper interpretation of the statute, let us next inquire whether the evidence warranted the conviction of the prisoner, and whether the charge of the judge was proper, considering the indictment, against him. To say nothing of the indictment embracing in each count, several distinct offences, inasmuch as the objection was not taken in the Circuit Court, and has not been discussed here, — • we are pursuaded that the indictment intended to embrace the first class of offences, declared by the second branch of the act — for advising, plotting or consulting with a slave, &c. for the purpose of encouraging, exciting, aiding or assisting any such insurrection or rebellion.

The words, “ any such,” it has been said, refer the terms insurrection or rebellion, to the first branch of -the act, and are to be taken to mean an actual or meditated rebellion. What is necessary to make out these offences, has been already shown, — from which it will appear, that the evidence did not sustain the indictment; and that the charge of the judge is erroneous in law. There was no proof of an actual rebellion, nor none of a meditated rebellion; but every thing of the kind, is directly disproved, so far as it is possible to shew the non-existence of a fact.

The witnesses all state that there was no insurrection or rebellion, or preparation for it, so far as they could learn — that they had no knowledge of the prisoner tampering with any other slave than Moses. The master of Moses stated that he was faithful and obedient; and that he gave him the earliest information of the advances of the prisoner.— From all this it is clear, that Moses never participated in any criminal design of the prisoner.

The Judge, at the request of the prisoner’s counsel, refused to charge the jury, that unless Moses participated in the illegal purposes advised by the prisoner, he could not be found guilty. — But charged the jury that the purposes of Moses were immaterial, if the prisoner had the design of encouraging, exciting and aiding an insurrection or rebellion — although contemplated by himself alone, and communicated to Moses with the view of securing his co-operation.

In the refusal to charge, as well as in the charge given, there is error; for the indictment before us, charges offences, — to complete which, it is necessary to shew the participation of slaves, as has been sufficiently shewn in considering the different parts of the act.

Had the indictment charged an advising, &c., for the purpose of encouraging, <§tc., an intended rebellion, &c. — we will not say that the proof would have been sufficient to authorise a conviction. Such an expression by this Court, might prejudice the prisoner, should he be indicted hereafter for that offence; but we cannot forbear the opinion, that such indictment would much better suit the proof than any that could be framed under the statute.

We might here close this opinion, with an annunciation of a judgment of reversal, did we not deem it proper to notice a question of very great moment, which was mooted at the bar. It was argued for -the prisoner, that as the advising, plotting or consulting,'for the purpose of encouraging, exciting, aiding or assisting an insurrection or rebellion, against the laws, government or people, was treason in other countries, and particularly in England, — these could not be indicted as a distinct and substantive offence here.

The constitution of the United States, having decided that “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort,” and the constitution of this State, having declared that, “Treason against the State, shall consist only in levying war against it, or in adhering to its enemies, giving them aid and comfort” — the statute coming in conflict with these constitutional inhibitions, must yield to their paramount influence.

Let it be premised that the provision of the feder~ al constitution, must have a federal and not a national operation, — that it relates to the United States or a sisterhood of States, and does not limit the powers of any member of the confederacy, considered singly. And even this has never been held to trammel the action of Congress to pass any law which ivas deemed necessary to protect the interests of government, within the range of its delegated powers; though in doing so, they might denounce as penal, an act which would ha treasen in other countries. To clip or counterfeit the coin of the realm was treason in England, yet no one doubts the power of Congress to punish the clipping or counterfeiting of the legitimate currency of the United States.

In the case of exparte Bollman & Swartwourt the right,to punish offences which do not constitute treason, as limited by the constitution, but which come within the legal definition of that crime, was considered by the Supreme Court of the United States. The Chief Justice remarks, “Crimes so atrocious as those, which have for their object, the subversion by violence of those laws and those institutions, 'which have been ordained in order to secure the peace and happiness of society, are not to escape punishment because they have not ripened into treason. The wisdom of the legisla ture is competent to provide for the case; and the framers of our constitution, who not only defined and limited the crime, but with jealous circumspection, attempted to protect their limitation, by providing that no person should be convicted of it, unless on the testimony of two witnesses to the same overt act, or on confession in open Court, must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentment, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions Which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation. It is therefore more" safe, as well as more consonant to the principles of our constitution, that the crime of treason should not be extended by construction to doubtful cases; and that crimes not clearly within the constitutional definition, should receive such punishment as the legislature in its wisdom may provide.”

Chipman, an author of considerable learning) in his Treatise on Government, (p. 259,) says, “Power is given to Congress to punish crimes, as expressed in the constitution. This has always been construed not to exclude the power of punishing in other cases. It results from the nature of government, and is contained in the clause giving to Congress the power to make all laws necessary and proper for carrying the constitution into effect; that Congress have the power to enact penalties in all cases where it may be necessary, for carrying their measures into effect; and to make laws for the punishment of all crimes, which may impede the measures, obstruct the authority of the government, or injuriously affect it in any and all its departments; but Congress have not, unless in places, over which they have exclusive jurisdiction, the power to punish crimes, because they are injurious to society.”

Without pretending to declare an acquiescence in all the reasoning of this learned author, we think he very well maintains that the provision of the Constitution we are considering; does not restrain Congress in the exercise of its. expressly delegated powers, or of those powers which are necessary to carry these -into effect.

If this provision of the Federal Constitution does not limit the powers of Congress’- — a proposition we take to be unquestionable, — certainly our own Constitution, in the employment of similar terms, cannot operate to restrain the action of our Legislature.— The Congress of the United States possesses only such powers as are delegated, or such as are necessary to give effect to those that are delegated. Our Legislature looks not to the Constitution for a grant of powers, but exercises all such as are compatible with the social compact, unless restrained by express' inhibition or clear implication.

Again: The right of protection belongs to man in-a state of nature — and he may exert this right, as a member of society, in cases of emergency,- where there is neither time nor opportunity to apply to the government. This right of protection extends itself to' communities, and is the foundation of the moral power to punish crimes, or provide against their commission. Society owes to each of its members a security for those rights, which he retains upon entering into' it: among these stands first, the right of personal security.- If this right is assailed, the assailant is obnoxious to punishment. And the right to punish crime, actually committed, includes the right to prevent it, by punishing him who contemplates it, without waiting for an act of personal aggression. This-is preventive justice — the right to exercise which, is unquestionable, at this day.

We do not deem it necessary to enquire, if an actual ■ rebellion or insurrection had taken place, whether the indictment should have been for treason; or whether treason can be committed against the laws, government or people of a State — as neither of these" " questions arise in this case: “ Sufficient unto the day, is the evil thereof.”

Several questions are referred, for our decision, which we have not expressly noticed. — Such as can arise, should there be another trial, will be found, however, to be embraced by those we have considered.

Our conclusion is, that the conviction of the prisoner was unauthorised — that the judgment of the Circuit Court must be reversed, and that the prisoner remain in custody, until he be discharged by due course of law.

      Kei. 17,21

       M c h 126

       vide fur • Con.Law] ’ '

      Aikin’s Digest p. 108, §44.


author: GOLDTHWAITE, J.

text:
    RICHARDSON VS RICHARDSON.

      Questions, as to bills filed for divorce.

    1. Adultery charged in a bill filed in Chancery, for divorce, while not necessary to be established by direct testimony, should be shewn by such facts as wobld lead to the inference, as a necessary conclusion, that it had been perpetrated.
    2. Where a bill filed to effect a divorce, charged adultery, against the defendant with one, who was proved to have been a widow, at whose house the defendant occasionally stopped, in passing the road, who had bastard children, reputed to be those of defendant; and whom defendant removed to near his dwelling, he frequently being seen at her house, and paying for -a loom set up there; and whom the witnesses supposed, from circumstances, might have lived in adultery with the defendant; — it was held that these circumstances did not make out the adultery, with the certainty required by the rule established in Chancery.

      3. The admission or confession of a defendant in his answer» cannot ^establish adultery, or authorise Chancery to decree in reference to it, without proof of the fact.
    4. And this rule applies in cases of divorce, either a vinculo or a mensa et thoro.

      5. This Court recognizes the doctrine, that an adulterer cannot resist a sentence of divorce, by setting up desertion.
    6. Chancery will not award costs against a wife, who files a bill for diverce — though she maybe unable to prosecute the case to a successful issue.
    7. And it seems, it will direct the husband to pay over to theym?-chien amy funds, sufficient to prosecute the suit to a final hearing: and will award the wife, aliment, pendente lite.

    On writ of error to a decree of the Circuit Court of Washington county, exercising chancery jurisdiction.

      . This was a bill for divorce, by Lucinda Richardson against her hir-band, John Richardson.
    The bill slated that complainant,‘entered into matrimony wiih the defendant, in the year eighteen hundred and ten. That the union oil her part, was one of affection, rather than of prudence, and that from it, she had long cherished the hope of deriving happiness and contentment. That this anticipation, or-atrix had found vain and delusive, for though her conduct from the day of marriage, up to the time of exhibiting the bill, had been dutiful, loyal and affectionate, she had received at the hands of her husband, little else than coldness and neglect, frequent personal chastisement, and brutal insult and abuse: That for a long period, she had suffered defendant’s conduct, with fortitude and resignation, hoping that the increasing number of the pledges of her affection, which she had borne, would awaken in his breast, some tenderness at least towards the mother of eight living children. That this hope was visionary, — for about the year eighteen and twenty-nine, the defendant formed an adulterous connection with one Charlotte Richardson, a common prostitute, and had carried her to the dwelling of oratrix; had built her a house withintwo hundred yards of oratrix’ residence, and lived with the said Charlotte in open adultery, continually afterwards: That in addition to this deep wound upon the honor and feelings of oratrix, the defendant had added to the cruelty already inflicted, and treated oratrix in a manner to justify her in the' belief that her life was endangered: And that urged . by defendant’s threats, that he would take her life, pratrix had sought refuge with an aged mother, on whose kindness she had subsisted for four years. Or-atrix further represented, that of her eight children, living, and borne to the defendant, two were daughters, grown to woman’s estate, and whom their father, regardless of the duties of a parent, had reduced to the degraded state of servants and slaves to his paramour — compelling them to perform the most menial offices to the said prostitute, and keeping five others of her children with him, in a state of nakedness and destitution, deprived of that greatest of all blessings — a mother’s soothing care, — mid daily witnesses of a father’s disgraceful and immoral conduct. That the said defendant at the time of oratrix’ intermarriage with him, was'very poor, and that despite his indolence and drunkenness, oratrix had husbanded the estate advanced to her from her parents, until it -had increased to a considerable property.
    The bill, after enumerating the items of which the said .estate consisted, — prayed a dissolution of the bonds of matrimony between herself and her husband; prayed a separation of her children from her husband, Alimony,-and writ of ne exeat.

      ■ The Chancellor on the filing of the bill, awarded an order by which oratrix was secured the sum of five hundred dollars, during the pendency of the suit.
    •The answer of the defendant stated—
    That true it was, respondent had entered into marriage with complainant, about the year stated in the bill; and he also hoped from their union to realize happiness and comfort, and that his wife would have demeaned herself, as an amiable, sociable and agreeable companion, and prove an industrious, prudent and careful housewife and mother; but so it was, she soon exhibited a temperament, the contrary of these, and proved exceedingly lazy, taking no care of her family or domestic affairs, and thus wasting respondent’s property: That she was passionate, sullen and stubborn, and had treated the respondent with insuL ting silence, scorn and neglect, though he had never given her cause for such conduct, but had exercised towards her tenderness and humanity. In relation to the charge of adultery, respondent expressly averred, that for more than one year after his wife left his house, he had not been guilty of an act of infidelity, in connection with Charlotte Richardson: That Charlotte, did. not, as charged, remove into a house near respondent’s residence, until after a year from the time complainant abandoned his bed and board: That Charlotte was the widow of his cousin, who died poor, and that she had lived within three hundred yards of respondent’s house with one Sullivan, from whom respondent purchased the house; and where Charlotte had lived afterwards. The answer denied having suffered his daughters to act as the menials of Charlotte, or to become spectators of vice; but averred having given them an education suited to their station in life. That the children were attached to him, and that four of them, after they had been placed with their mother by mandate of the Court, had returned voluntarily to him.
    Touching the charge of abuse and cruelty, respondent admitted, that upon one or two occasions, urged by provoking language, he had offered violence to the person of complainant, using a small peach or quince switch; and once giving her a slap upon the cheek with his open hand. Respondent denied the charge of excessive poverty, 'when'he intermarried with complainant, being as he alleged, worth at that time, one hundred dollars or more; but confessed having the possession of sundry slaves, and other property, obtained through his wife.
    The most material portion of the evidence, established in the cause, was — that Charlotte Richardson was a widow, living near the house of defendant, near the public road: That she lived there without visible means of support, and had borne several children ; and that defendant had been occasionally seen at her house, and had paid for a loom set up there.
    The Chancellor below dismissed the bill, at the costs of complainant.
    And this was assigned in error here. .
    The cause was argued by

      Sallee for the plaintiff in-error, Gibbons, contra.
   GOLDTHWAITE, J.

— This suit was instituted in the Circuit Court of Washington county, in January eighteen hundred and thirty-four, and is a bill in equity, by means of which, the complainant seeks to procure the dissolution of a marriage, contracted between the defendant and herself, in the year eighteen hundred and ten.

The complainant alleges, in terms well calculated to excite the sympathies, that she has borne to the defendant eight children, all living pledges of her affection to him, whom she charges to have treated her at all times with coldness and neglect, and frequently with personal chastisement, brutal insult and unmanly abuse.

She further charges him to have formed an adulterous connexion, about the year eighteen hundred and twenty-nine, with one Charlotte Richardson, a common prostitute, whom he brought to the dwelling of the complainant, built for her a house, but a short distance therefrom, and has ever since lived with her in adultery.

She also charges,* that she entertained serious apprehensions for her life, from his cruelty — he having declared in the most solemn manner, that he would tafee her life, but for the fear of the law ;■ compelled by this cause, she sought refuge with her mother, on whose kindness and bounty she had subsisted for the last four years, previous to the exhibition of her bill.

She alleged moreover, that two of her children are daughters, grown up to woman’s estate, whom the defendant, regardless of the duties and feelings of a parent, had reduced to the degraded state of servants and slaves to his paramour, compelling them to perform the most menial offices to that prostitute:— That the other children remaining with him, are in a state of almost entire nakedness, destitute of the soothing attentions of a mother, and daily witnesses of the disgraceful, immoral and adulterous conduct of their father.

The bill also sets forth, a statement of the personal estate held by the defendant, and alleges that nearly the whole of the same, was obtained by reason of his marriage with the complainant.

She prays that the marriage may be dissolved, the property devided as may be just and equitable, that the custody of the children may be committed to her, and for general relief.

The answer is in a tone of. sufficient asperity, to shew the state of feeling between the parties to have been of a most, unpleasing description. The complainant is charged to have been exceeding lazy, indolent and taking no care of the family — with permitting every thing to be wasted, neglected and destroyed — with being petulent, passionate arid oftentimes sullen and stubborn, — at times exhibiting the greatest passion and fury, and then remaining silent for weeks.

The defendant admits that he has more than once inflicted personal chastisement on his wife, by whipping her with small peach or plum tree switches, and once by striking her with his open hand, — but this he excuses by reason of being provoked thereto, by her excessive abuse, taunting and. provoking language, combined with her insufferable neglect.

In relation to the particular and specific cause of offence, set forth in the bill, the defendant alleges, ■■ that at the time his wife left his house and for more than a year subsequent thereto, he neter had been guilty of an act of infidelity to his wife, in connexion with Charlotte Richardson, and that she did not remove into the house, near the dwelling of the defendant, until more than a year subsequent to the time his wife left his bed and board.”

The answer denies in general terms, any cruel treatment, and insists that the defendant has conducted himself to his children, as a kind and affectionate father; that he neither permits them to see or learn any thing which is improper, and that they are all well satisfied with their condition in life, and desire no change.

It must appear to all, that if the facts as they are charged, actually exist, there could be but little difficulty in establishing the same by evidence, which would be perfectly satisfactory in its character; but that disclosed by the record, produces no such conclusion — the examination of the witnesses was evidently conducted by those unskilled in the art, or not aware of the importance of presen tin g facts for the consideration of the Court, and although enough is disclosed to induce the belief that the witnesses knew more, and could perhaps have stated facts, which, if disclosed, might have established the material allegations of the bill — yet it would be highly dangerous, as well as manifestly illegal, for any Court to act on facts which might, but which have not, been established by testimony.

It has been urged with great force, that the same measure of testimony should not be required to establish the crime of adultery, against him who is shewn to entertain a feeling of disgust and dislike to his wife, as against one whose daily intercourse is of the most friendly and harmious description — but it cannot be said that the mere existence of such feelings will authorize a Court to infer the commission of such an offence, without some evidente within the established rules.

It is said, however, that the proof brings the defendant within the rules of evidence applicable to cases of this character — that the factis not necessary to be established by direct evidence, but may be inferred -from other facts. — That if a married man is seen at a brothel, and remains there a sufficient time, in a room with a common prostitute, to commit the act, adultery shall be inferred. — Astly vs Astly. The general rule is laid down with more clearness and brevity in the case of Loveden vs Loveden. “It is a fundamental rule .that it is not necessary to prove the direct fact of adultary. The fact is' inferred from circumstances that lead to it by fair inference as a necessary conclusion. Now the only facts proved in this case, seem to be that Charlotte Richardson was a widow, living on the public road in the country, and that the defendant had been seen to call there for a a few minutes in passing the road.

It is said that here is a married man, going into á brothel, &c. — but no evidence is shown in the record to establish any fact which can legelly induce the’ 'conclusion that this female was then a prostitute.

The subsequent facts proved, are that she was removed in eighteen hundred and twenty-nine or eighteen hundred and thirty, to a house near the defendant, by a slave belonging to him — that she has since had-two bastard children, of which he' is the reputed father, and that he has been seen at her’ house.-

The witnesses state that they know nothing of their own knowledge, but from circumstances, they should think that the defendant and Charlotte Richardson had been living, or might have been living in adultery since about eighteen hundred and twenty-nine. It is also proved that he paid for a loom which was put up in her house.

If we test these facts by the rule before referred to, can we arrive at the conclusion of adultery committed.

The reputation of the paternity of the children, is certainly not the legal way to establish it, nor can it weigh — neither can we infer what the circumstances are, which the witnesses do not state. Does the paying for the loom — the moving of the woman by the slave or by his master — the proximity of residence— the being seen at her house — no circumstances of suspicion being stated, or the bearing of bastard children by her, with the reputation of Richardson’s being their father' — 'bring this case within the general rule before stated.

We look in vain for any fact, which by fair inference will lead to adultery as a necessary conclusion.

' Before dismissing the consideration of the evidence in this cause, it may not be improper to advert to the general rules which are understood to prevail in the ecclesiastical Courts on the subject of allegation. It is believed to be the uniform practice of these Courts, to require that all the facts should be alleged with such convenient certainty, of time, person and place, as will enable the defendant to meet the charge with proof. How far the adoption of similar rules may be necessary or expedient in this State, is one point on which the Court will not now express any opinion.

But it is said that no evidence was necessary in this cause — that the material fact of adultery is admitted by the answer, and that a decree must be the consequence — that the statute directing that the confessing or admission shall be received, was only to prevent collusion, and ought not to apply to cases where no collusion exists, and where none can be apprehended.

All the various statutes on the subject of divorce, seem to have copied very closely from the rules which have obtained in the ecclesiastical Courts of England, and perhaps the exposition which has been given to these rules, will be found to afford good, if not the best rules of construction, for our statutes.

That confessions, shall not by themselves, be admitted to establish the fact of adultery, is a well settled rule of those Courts, and is one of the established canons of the English church, adopted in the year sixteen hundred and three,—and the unvarying decisions of the Courts of Doctors Commons have applied it to all cases of divorce, whether final or temporary. Some doubt seems'to have existed, whether the most solemn confession, without some fact proved, leading to act, Would, of itself justify the husband in withdrawing from the bed of his wife.— Mortimer vs Mortimer.

This case is believed to settle the construction which the canon of the church has received—indeed, it would be impossible, to say how far any rule, which should attempt to attach facts to a confession, Would be of any real service: for, if the confession would not be received by itself, it is difficult to conceive how any fact, not conclusive in itself, would aid it. Be this as it may, our statute has not left the discretion to any Court, to receive aid from a confession. It is found, “In order to prevent collusion between the parties, in no case, shall the confession of them, or either of them, be taken or received as evidence, in any case of divorce.”

It was a subject of some doubt, with the Court, whether the object of the legislature being apparent, to prevent collusion, and there being no danger, or not such great danger of this, in cases where the divorce was not a vinculo, a Court would not be au-thorised to decree a divorce a mensa et ihoro, on a confession merely; but such a practice seems never to have obtained in the English ecclesiastical Courts, under a canon certainly not so obligatory in its terms, as our statute, which applies to all cases of divorce, whether final, or otherwise. A similar rule obtains *n ^ew York.

We have, therefore, been reluctantly drawn to the conclusion, that the admission or confession of the adultery, in the answer, would not authorise the Court to decree, without proof of the fact, in the ordinary method, provided for, by the rules of law, — and our regret is the greater, because,- in the case before us, the answer seems very distinctly to admit the crime charged; but to rest its excuse on what is termed by the ecclesiastieal Courts, compensatio cri-minis, setting up the desertion of the wife from his house, in eighteen hundred and twenty-nine,- as a bar to her relief. If such was admitted, it would not bar the relief. — Even a malicious desertion will not bar a sentence of divorce, for adultrey. — Sullivan vs Sullivan.

The charge of cruelty, is the only one remaining to be considered; and without examining the mode of its allegation, either as general or particular, so as to enable the defendant to answer or disprove the fact, it is sufficient to observe, that on this point, there is a total defect of testimony.

The Court below dismissed the bill at the costs of the complainant, and it does not appear, in any part of the record, that she prosecuted her cause by a pro-chien amy, who would, alone, be responsible for costs. It was manifestly improper to render any decree against her, for costs, in a suit prosecuted against her husband, under any circumstances; but, in this case, the Court is of opinion, that lie should have •been compelled by the decree, to pay the same — as, from the admissions of the answer, it appears that she had probable cause for instituting her proceed-, ings; although she may not have been able to prose.cute the case to successful issue.

He would also have been directed, in the earliest .stage of the proceedings, to pay over to her procliien umy, a sufficient sum of money to prosecute the suit to a final hearing; and she should have been alimented pendente lite — as the husband would thus have been responsible for the costs, there would have been neither hardship or impropriety, in decreeiug the same against him, independent of the admissions of the answer.

It might also have been proper, for the Court below, under peculiar circumstances, to have dismissed the bill, but without prejudice, though such a de: cree is understood to be matter of discretion with the Court — and which exercise of discretion could not be reviewed. — But as this question has not been argued, no opinion is necessary on this point — the more especially as, from the facts charged by the bill, and disclosed by the answer, it is not improbable, that the causes which induced the exhibition of the complaint, may have continued since the suit was instituted.

It is the opinion of this Court, that there is no error in the decree, so far as it directs the bill to be dismissed — -and that there is error in the same, so far as it directs the dismission, at the costs of the complainant, — for which error it is reversed; and this Court, proceeding to render such decree as should have been rendered by the Court below, doth order, adjudge and decree, that the said hill of complaint be dismissed, and that the said John Richardson, the defendant therein, shall pay all the costs of this Court, and of the Court below.

      J nagg.-

       12Bags i.-tsii”1101’'

       2 Hagg.-810; 4Ecci Rep. 547,. and cases there cited

       Aik^Dig.-131.

       oh Rhi97

       2' Ecc. r. 3I4-