author: By Mr. Justice íIítcucocsv :

text:
    DYER versus THE TUSKALOOSA BRIDGE COMPANY.
    The Legislature has the same right to authorise the erection of toll bridges, by act incorporating a company for that purpose, which it has vested in the Comity Courts.
    The keeper of a ferry, oppos'tc a town, under license from the County Court* keeps it subject to tho^public convenience; and the erection of atoll bridge near such ferry, by a Company, under charter from the Legislature, ignota violation of the vested rights of such ferry owner.
    The principle, that private property can. not be subjected to, public use, without adequate compensation, docs not apply to alleged Josses, sustained by the owner of a fn’ry, (overa public water course, opposite a town, and wlio holds the samo under grant from the County Court) by reason of the erection near it of a toil bridge, under a charter, granted by the Legislature.
    The Legislature, in an act incorporating a Bridge Company, having provided a mode for assessing the damages which might be sustained by the owner of any land, selected as a soito and as a road to and from said bridge — such mode is conclusive, and the proprietor of land, so appropriated, must resort to tiie means pointed out by the statute, for compensation.
    This cause was brought into the Supreme Court, bjr writ of error from the Circuit Court of Tuskaloo' sa, on the final decree of a chancellor, dissolving an injunction. The complainant filed his bill, praying an injunction against the erection of a toll bridge. He claimed, to be the proprietor of a ferry, over the Black V7arrior river, opposite the town of Tuskaloosa; which he held under a license from the County Court. The bill charged, that the defendants, by virtue of a charter granted by the Legislature, were proceeding to erect a toll bridge over the same stream, and within a short distance of the complainant’s fex-ry — that said bridge, if built, -would prove of great injury to him, and eventually destroy his ferry — that he was the owner of lands on one sido of the river, whore the defendants were about to locate one of the abutments of the bridge, and a road leading therefrom. He insisted, that the passage of the charter, by the Legislature, was a violation of his vested rights, and prayed an injunction to restrain the company from proceeding.
    Peck, for Plaintiff, said
    A ferry is a franchise, undli.es only in grant; and as such, it-is a contract, within the meaning of the constitution. — See 6 Cranch, oa.so of Fletcher and Peck. The parties to this conduct ar'e, the State and Dyer. The consideration on the part of the State, is comprised in the privileges granted, with all such as are incident thereto; and on the part of Dyer, the undertaking to keep up the ferry, and in a proper state of repair, for public convenience. The State could have no right to make a grant to another, afterwards, inconsistent with the grant of the ferry ; and that the bridge privilege does destroy the ferry, there can be no doubt.
    Was the grant of the ferry made on condition ? And if so, was the subsequent grant within the condition? In regard to the condition, see Ailcin’s Digest, 363. Where there is a town, other ferries may be granted subsequent to the’ first grant; but that does not amount to a permission to grant the privilege of a bridge in the immediate vicinity, and thus destroy the first grant. Suppose this Bridge Company to be the first grantee : could the Legislature, in good faith, after the organization of the company, and after they had expended their thirty thousand dollars, grant a free bridge, so as to take away all the profits from them ?

      TMs act, granting the privilege of erecting a bridge* to a company, after the grant of the ferry to Dyer, is void, under the 10th section of the Constitution, which forbids a State from passing any law, impairing the obligation of contracts. Any act by which the contract is made worse, or of less value, is in violation of this part, of the constitution. The State then, it is clear, is bound to protect the complainant in the privileges granted to him, and to do no act that will lessen the value of those privileges. The right of the Bridge Company to their grant, being incompatible with the grant to Dyer, cannot therefore be sustained: 3 Story’s Com. 243, 350:
    This act is also in violation of another provision in the Constitution, namely, that private property shall not be taken for public uses, without making compensation therefor, The northern abutment of this bridge is on the complainant’s land; and yet there is no provision in this act for making compensation for this injury to private property. The act, in this respect, is against the very letter of the Constitution.
    If the Bridge Company may thus infringe on the rights of the complainant, he is left without remedy. This bridge is -private property. The Legislature have no right to condemn the propertymf one citizen, for the benefit of another; and if this property should be considered as quasi public, there is still no provision in the act for making compensation.
    This bridge cannot stand on air. It must, if built, be placed on some body *s land. Can this be legally done until the land is condemned ? And here there is no provision for that purpose.' The road to and from the bridge is to be a public road. For that, there is a provision. As to the road, the fee, remains in the owner ■still. The title of the land is not condemned- — only the use. The road may be discontinued, but the bridge being private property, is vested in the company — and if the complainant’s property may be thus taken away, it is taken away forever. The only interest the public has in this bridge is the right of passing over it. How is that privilege secured ? It is not secured at all. The company may keep it open to-day, and close it to-morrow. They are not bound as in case of a ferry. They may nail it up at both ends : still the appropriation of the land is final.
    This being a private act, it must be construed strictly, where it comes in conflict with, the rights of a citizen. The company can take nothing by intendment. As to taking private property, they cannot do it without condemning it, and they cannot condemn it if the Legislature has not given them the power. — 2 Kent, 284, ’5, ’6. Where the Legislature attempt to take private property for public use, the condemning power giving compensation, must be embraced in the act. The provision must be made at the same time that jurisdiction is assumed. If the Legislature take private property, not for public use, but take from A and give to B, they do what they have no authority todo.
    This is not a public use. Those who pass, pay for it. The interest is in a private company. — 2 Bay’s Rep. 58.
    Crabs, contra.

    If the complainant has suffered f any injury, his remedy is at law; and a Court of' Chancery has no right to take jurisdiction of the case. Aikin’s Dig. 364; and to shew that an ample remedy is furnished at law, see AiJdn’s Dig. 357. Independent of this, if an injury has been done — if a nuisance has been set up, the party has his action on the case. Chancery will not take jurisdiction of wrongs in the nature of trespass.
    But, I contend that no injury has been done. I admit that the power of regulating highways, and the like, belongs to the sovereignty : here, to the Legislature, as to the Crown in England; but with this difference, that the Legislature hold their power under restriction; they cannot confer a franchise, raising a private property, inconsistent with the public convenience. If they grant a privilege to an individual, it must be with the restriction as to public convenience. But I contend that the grant of a ferry is a mere license, not a franchise or contract. The Legislature could not carve out to Dyer or any one else, a larger power than , they possessed themselves ; and they possess no power but that to promote the convenience of the public. If a license to keep a ferry, be a contract at all, it depends on the public convenience continuing to require it.
    The counsel spoke of the restrictions resting on the State as to the establishing of other ferries, within a certain distance of a ferry already granted.— There is no such restriction. The restrictions in the act, are on the County Court — not on the State or the Legislature. The restrictions do not apply in a town — nor to the establishment of a bridge after a ferry : these do not conflict. But these restrictions are imposed on the County Court, because the Legislature did not choose to part with their entire power. The State may still establish ferries nearer together— the public convenience being the guide. The restrictions on the County Court were not imposed for the benefit of the person to whom the grant was to be made, but for the' benefit of the public. But, as to this grant to the Bridge Company, the Legislature" lave granted the power tbornsoi.vcr. •. freo the case of Ilalixs. íuujsdah, in tai» Court, Juhb term, IDib.
    . "With v/k-t view nad OíKlcná'uviv-g dal Dyer accept the groat cf tlrir, ferry ? ('o.loimy wish a view !<> the cxiatj-'-'j f-.ia.te ofíhe eoarir g, end wish the knov-D !gi ikDíh: Legislature, vh -u inohiate cf the éeoo-i y ;.h" require it, had ¡;;r..vr ip ; reel brahm-- cr ..ahc Act jerries. ; ,
    There is no injury i>Ot*e, bread: Dot with De true T.ndor,h.,:i.h-v; efthe origin:;! gmht. IK there is in-pry, it is l-rkhnlal — Ido Convi on mol know ikere is r, .7 iw;v‘;y ; títere may be mPo;!. • ooeegh {or both.. T ho pro vision of the Coudlirk i, a;-; to impahiag the obllgy-ion of contracts, Las rever boon i.HKiemiood to cruo.id to political rights cr pernor-, bh: to eonír?c;s effecting property. — 1 Kan', Kths ijCgislatwe could grant away its poli tier-i power, in. the manner contended for, they might entablDb an aristocracy. 'The Legislature cannot control pabilo concern:!, or restrain public convenience by .means of con.tract,-;. Look at the effect! Are wo to lie ccríñnod to the bad roads of the country, to neve harmless some old grant? Are rail roads, bridge.;-!,, and older interna] i:n-provomeuis, to be thus restrained l It is impossible that the Legislature slionld have 'power thus by cost-tract to rentrain the improvements of society for whose benefit the legislative body is constituted?
    If the abutments of the bridge be cn the land of Dyer, ha con have his rcrnujioralion by writ cf ad quod dur.invm. It cannot be noce-:vary, that the at t granting tide charier, should provide lor the ad quod, dom%v.rn \ the general law pro dder- for it— 1 i¥w7 & ■McCord, 387.
   By Mr. Justice íIítcucocsv :

The complainant in this case, charges, that ho, for along time lias been* and now is, the proprietor of a ferry across the Black Warrior river, opposite the town of Tuskaloosa, under a license from the County Court of Tuskaloosa County ; that the defendants under, and by virtue of an act of incorporation granted by the Legislature of this State, are about to erect a toll bridge across1 .the said river within a few yards of his ferry, which if completed will very materially injure, if not entirely destroy the value of his ferry. He further states, that he is the proprietor of a piece of land on the north side of the river, upon wdiioh the defendants intend to place one of the abutments of the bridge, and through which they intend to run a road leading from the bridge, out to the main public road, leading from his ferry to the country. He contends that this act of the Legislature is in violation of his private rights, and prays an injunction against the defendants, prohibiting the erection of the bridge.

The defendants have answered the bill, and have admitted the material facts as therein stated, but insist, by way of demurrer to the bill, that the complainant has not made out a case for the interposition of a Court of Chancery. The injunction, which was granted upon the filing of the bill, was, on hearing of the bill, answer and demurrer, dissolved, and the bill dismissed; and the case has been brought to this Court for revision.

The complainant insists, that the grant to him of this ferry, is a contract between him and the State, and that this act of incorporation is unconstitutional and void.

I. Bepause it operates to the destruction of his grant. •'

II. Because it impairs the obligation of his contract with the State ; and,

III. Because it deprives Mm of His property, without due process of law, and without just compensation. f ■" ' •

An investigation into the constitutionality of an act of a co-ordinate department of the- 'government, is always a delicate, if not a painful duty. . But, when the rights of individuals are concerned, and the question is distinctly presented, Courts, have no alternative. Upon the faithful discharge ;,of their duty, depends the “integrity and duration of the government and if the Court, in the investigation of this case, had found the positions assumed by the complainant, sustained by the constitution and the laws, they would not hesitate to pronounce the -act complained of, void. ■

The Court has not, however, in- the view which it takes of the complainant’s rights, in this case, found any thing in the law complained of, which authorizes its interference. . • .

The laying off, regulating, and keeping in repair, roads, high-ways, bridges and ferries, for the public use and convenience of the citizens, is an exercise of the supreme authority of the State, coeval with the institution of civil society, and.indispensable to the free exercise of social and commercial intercourse, -and as soon as men cease' to roam abroad as savages, ■and lands become appropriated to private Use, the reservation for public accommodation of a sufficiency for these purposes, is necessarily implied, and the mod e of regulating its use, is necessarily vested in the State. It is a part of the eminent domain, and as such is treated by all writers on -Public Law. It is upon this principle that roads are laid out, and that the citizens are compelled to contribute cither in -, ¶ ' i . -, . . ney or labor to keep them in repair.

Cm* Legl.dMiurc, in the exercise of this authority, have dulog-b :•••! to the Judge of the County Court and Coiir.n.üi-'io'.iCi'e of ruede in each county in this State, the power to k-y out public roads, to discontinue and alter the snnw, when found useless, so as to make thorn more vu-eni-to establish. ferries, by granting licenses to individuals under certainrogulaticns ; and to erect free bridges, under the direction of the overseers, or to grant license» for toll bridges to individual, under certain, regulations. But-in all cases where ferries and loll bridge» are authorised, the. rights of too i ml i vid uais to whom the grants are made, are held subject to the ¡vo/perior and paramount rights of the community. The only right secured by law to persons who have licenses to keep ferries, is that “ no ferry shall bo established within, two miles of another a!reedy established,” and in case of toll bridges with- . in three miles, and this right does not extend to ferries opposite to towns. In such cases, as many ferries may-bo established as tho Court may think proper ; and in al! cases bridges may be established along side of ferries, in tbs discretion of the Court; so that in this caso, the right of the complainant was and is subject to the establishment of ferries, and the erection of .a bridge even by the County Court, in the immediate neighborhood of his ferry. If the Comity Court - could then, have authorised the erection of this bridge under the general road laws, it is not perceived that the Legislature, who have,invested the County Court with tins discretion, are prohibited from making the grant directly.

It is true, that the grant of a ferry is a franchise. There are a great variety of franchises-some of them founded on valúa,ble considerations, and necessarily exclusive in their nature, and which the gov-eminent cannot resume at their pleasure, or do any other act to impair the grant, without a breach of the contract. An estate in such a franchise necessarily •implies that the government will not eithei directly or indirectly interfere with it, so as to destroy or materially impair its value, either by the creation of a rival franchise or otherwise. But a grant of- a ferry , ,. , , j. J3 J over a public water course, and for the .convenience of the community, is not such an exclusive grant as is contemplated in such a case.

But, it is contended, on the part of the complainant, that, admitting the Legislature have the powef, upon the principles of public policy, to authorise the establishment of this bridge, and thereby destroy the value of this ferry, that this can only be/'d'one by making adequate compensation to him for this loss; on the principle that private property cannot be taken for public uses, without just compensation. If this was a private and exclusive grant,' founded upon a valuable consideration paid' therefor;*"tlils argument would undoubtedly be good. Butyijf we have successfully shewn, that this is not such-, algíant, as we think we have, then this principle-, doee not apply. What property has the complainant in,'this ferry, except in its use ? and by what tenure ¿bes he claim the right to this use ? It was originally granted to him for the benefit of the public : that' public, it is now thought, require greater facilities — ‘they have been granted; and if Ms profits aid theieby lessened, has he any cause of complaint? • lie received his license subject to this contingency.,' and mtist abide by the consequences. Suppose the public convenience should require the road leading to a ferry to he chang- ' ed, and the old road closed up. The County Court has the power given to them to do this. Can the owner of a ferry at the old crossing, say; that this must be done only upon paying him what he may loose by the change. The fallacy of the proposition appears too plain to admit of elaborate illustration.

But, it is contended, that thé Legislature have not only wrongfully destroyed the value of the ferry, but that they also wrongfully authorised the taking of plaintiff’s land for the abutments and the road.

By the 9 th section of the act incorporating this 'company, it is made the duty of the superintendents named in the act, to “ select a site for the bridge, and also a site for a road leading to and from said bridge, and mark out the same, and apply to the court of roads and revenue for a jury to assess the •damages, if any shall be claimed, for the lands the road may pass through, whose duty it shall be to appoint said jury, and as soon as the damages shall be paid by the company, to order the road to be opened, under the same rules and restrictions as other public highways, and which road shall be of the first grade, until it shall intersect other roads.”

Admitting, that as well by the Common Law, as by the 13th article of our Bill of Rights, private property cannot be taken for public uses, without just compensation, yet the Court can see nothing in the section above recited which conflicts with this principle. Here, as much ground as is necessary, for a road from the bridge to the main public road, is condemned, and placed upon the footing of other public highways; but before it can be taken, a jury is to assess damages, if demanded, which damages must be first paid before the ground can be used. This is the ■ordinary mode of condemning the use of lands in such crises. A transfer of the feo of the land to the company was not necessary, and it is presumed, was-not contemplated; and should the bridge be destroyed, and the company dissolved, the use of the ground would thereby revert to the original proprietor. It is decided in 2 Bay's So. Car. Rep. 38-that the Legislature of the country is vested with the power to, pass laws for laying off roads and highways in every part of the State, and to appoint commissioners to see them kept in repair, whenever they may think convenient and proper, without any compensation to the owners of the lands through which they run. This, it is said, is a part of the lex terree — a condition attached to all freeholds, and which existed before, mag-, nackarta. However this may be, as to compensation; in this case the Legislature have given the proprietor a mode of recovering damages, if he thinks proper to. demand them, equal to the injury he may sustain.

We are, therefore, in every point of view, in which this case can be viewed, clearly of the opinion, that the decree below must be affirmed.

       Vattel, lib. 1, ch. 20, § 249, Bynkershoek, lib. 2, chap. 15. Domat, book 1 tit. 8, § 1.

       Aik. Dig. 265

       Aik. Dig. 260

       Kent’s Com. 458, 459.


source: Caselaw Access Project

author: By Mr. Chief-J ustice Saekold :

license: Public Domain

text:
    HIGHTOWER versus IVY.

    The indorsement of a promissory note is the highest evidence of the nature of the agreement between the parties; and evidence of a parol agreement made at the time, varying the legal liability, is inadmissible.
    Proof of the insolvency of the maker of a note, at the time of its assignment, will not excuse the assignee from the use of due diligence to collect it from such maker.
    Where the maker of a note, after suit brought by the assignee, offers to pay said assignee part of the money, and he refuses to receive it, and it cannot afterwards be recovered, it is negligence on the part of such assignee, and he must, to that extent, sustain the loss.
    This was assumpsit, brought by Hightower, in the Circuit Court of Autauga.
    Hightower sold a slave to Ivy, who gave his note for the price, Ivy afterwards took up his note, and in lieu thereof, transferred by indorsement, a note which was payable to himself from one Maples, to the said Hightower.
    The declaration contained five counts; the first of which was in the usual form upon the assignment; the second and third were also on the assignment, hut they contained averments of the insolvency of Maples at the time of the indorsement, and after-wards, and of the defendant’s knowledge of the fact: the fourth, was for a slave sold and delivered from the plaintiff to the defendant; the fifth, for money, and embraced all the averments of the common money counts.
    It appeared from the bill of exceptions, that the plaintiff offered to prove, that at the time of the in-dorsement of Maples’s note, the defendant promised to pay the same if Maples should fail to do so; which evidence the Court refused to admit, except with reference to the fourth count, which was on the original sale of the slave. The plaintiff also offered to prove that Maples was insolvent at the timo of-the indorsement of the note; but the Court refused to admit the evidence, and on this point instructed the jury, that neither the insolvency of the maker of the note, nor the agreement of the indorsor at the time, -would excuse the plaintiff from due diligence in regard to demand and notice. It appeared also, that after suit was brought against Maples upon the note, he, Maples, offered to pay to the plaintiff about two hundred dollars of the amount, but the plaintiff refused to receive the same on account of. the pendency of the suit, In reference to this matter, the Court instructed the jury, that if the plaintiff could have received the money or any part of it, and failed to do so, that he must bear the loss.
    ■Judgment having been given for the defendant; on • the part of the plaintiff the case came to this Court,
    Pickens, for Plaintiff
    Ellis & Peck, contra.

   By Mr. Chief-J ustice Saekold :

This action was assumpsit, brought in the Circuit Court by the present plaintiff against the defendant, on a promissory note payable by S. W. Maples to the defendant, and by the latter indorsed to the plaintiff-.

The first count is in the usual form upon the note ; the second and third counts are also on the note, with averments of the insolvencjr of the maker at the time of the indorsement, and ever since, and of the indor-ser's knowledge of the fact: the fourth count is for a slave sold and delivered by the plaintiff to the defendant; the fifth count is for money lent and advanced, money paid, laid out, &c. and for money had and received. The plea was non-assumpsit.

From a bill of exceptions, it appears that the plain-, tiff introduced as evidence on the trial, the note with the indorsement as described; also, that at and before the time of the indorsement, the defendant, as indor-ser, agreed with the plaintiff, that if the note was not. paid by the maker, he would pay it. This evidence-was admitted by the Court in reference only to the fourth count, which was on the sale of the slave, and ruled to be inadmissible on either of the others. The opinion of the Court was further declared — that under the last count no evidence could be received, other-than proof of money actually received; also, that the evidence offered, to prove that the indorser agreed to-be responsible if Maples did not pay, could be adduced only under- the fourth • count, as it was variant, from the operation of the written assignment. The plaintiff proved that after the lapse of five or six months from the time of the indorsement, the note was presented to Maples for payment, and not paid, and that about one month thereafter, he the plain-, tiff, notified the defendant of the fact, and urged pay-, ment .of him; that defendant then agreed to return the slave, which was the consideration for the assignment of the note, and take it up, making no objection to want of diligence in regard to it; that shortly af-terwards, however, the defendant refused to do so,, and then told plaintiff that unless he sued Maples in a few days, he would be no longer bound as an indor-ser, to which he replied that no court occurred so soon, but that Maples should be sued to the first court — to which the defendant made no objection. The plaintiff then, by proper evidence, proved, that before the then next court, he did sue Maples, obtained judgment, and had execution levied on a ne-. gro as the property of Maples, which was released on it béing ascertained it did not belong to him." The plaintiff then offered to prove that at the time of the transfer of the note, and since, Maples had been insolvent; but the Court excluded it as inadmissible. It was also in evidence that the defendant had purchased a slave from the plaintiff, and gave his note for the price, and after it fell due, transferred the note of * Maples to the plaintiff and took up his own. It was also in proof, that Maples had offered to pay the plaintiff about $200 upon his own note,, which plaintiff refused to receive, because suit had been commenced upon the note. The Court then instructed the jury, that neither the agreement when- the note was transferred, nor the insolvency of the maker, would excuse the plaintiff from due diligence in demanding payment, and giving notice to the indorser of the non-payment; and that if the plaintiff had acted so negligently that the indorser would sustain a loss by having the note returned upon him, or if he 'could have received the money or any portion thereof, and failed to do so, that he must, bear' the loss; •and this was all the evidence offered and received.

The plaintiff now assigns as erroneous,

1. That the Circuit Judge refused evidence of the •defendant’s promise, made at the time of the assignment, to pay the note in the event the maker did not; except in reference to the count on the original consideration.

In this, the views of the Circuit Court were correct. The assignment in writing at the time plaintiff received Maples’s note, is the highest and best evidence of the contract of assignment. This can not be varied or controled by any evidence of a parol agreement to the contrary, of the same'date. This principle has been recognised by previous decisions of this Court. The parol evidence was admitted in reference to the count on the original contract for the slave. The plaintiff was entitled to nothing more. See Sumerville vs. Stephenson & Johnson.

•2. It is also assigned as erroneous, that under the common money count, the Court held no other evidence sufficient than of money actually had and received.

The record purports to disclose all the evidence offered in the case, and shews that no money was ei-t h or lent, paid, laid out or expended, or had and received between those parties. Had there been no evidence of the consideration of the contract, or any shewing that money had passed between the parties, the plaintiff might have been entitled to recover on the money count, unless his right was lost from his neglect to use the necessary diligence in collecting from the maker, and fixing. the liability of the indorser. It is said a bill or note is evidence in support of the counts for money lent, paid, had and received; but that it is only so as between, the original parties to it. Thus, a bill is prima facie evidence of money lent by the payee to the drawer, and a note, of money lent by the payee to the maker-(Clark vs. Martin, ) and amn-dorsemcni is prima facie evidence of money lent by the indorsee to his immediate indorser. But it is clearly maintained, that these instruments are but on-ma facte .evidence of such consideration, and the other evidence in this case fully establishes the contrary. There seems to haye been no decision of the' Circuit Court against the note as evidence to this extent. I would understand the opinion of the Court on this point to have been only, that the money count was sustainable alone upon evidence of actual cash lent, paid out, or had and received, in the manner charged in iho count. I. would not infer from the

language of the exceptions, that the opinion of the Court was, that no other evidence would sustain the allegation of money lent and advanced, or of money paid, laid out, and expended, by the plaintiff for the use of the defendant, than of money had and received by the defendant, for the use of the plaintiff; but if such were the construction, still the idea of any money having passed in either way, is fully negatived by the bill of exceptions. It purports to contain all the evidence, and none such is disclosed; consequently no injury could have resulted to the plaintiff from such aii opinion, had it been expressed.

A further assignment of error, is, the charge of the Court, that neither the agreement by the indorser, at the time the indorsement was made, nor the insol ven- ' cy of the maker of the note, would excuse the plaintiff from due diligence in regard to demand and notice.

It has already been remarked, that the parol promise, made at the time of the indorsement, can not vary or control the legal effect of the latter. The law in this respect is holden to be, that neither the bankruptcy, or known insolvency of the drawee of a bill, or maker of a note, will excuse the necessity of demand of payment, and notice thereof The sentment of bills, notes, &c. for payment, is & condition precedent, as regards the respective parties, who being primarily liable, are in the nature of that the parties primarily liable, will duly honor instrument. Chitty recognises the principle, that neither the known insolvency, or bankruptcy of the drawee or maker, render presentment unnecessary. Then, it results, that neither of these grounds could excuse the want of due diligence. What was necessary to constitute due diligence, under the eircumstan-•ces of this case, does not appear to have been made a question. Nor does it appear that any point was made, or any decision given, respecting the defendant’s offer, (at the time he received notice of the nonpayment,') to return the slave; or the effect, as a waiver of diligence, of any thing that then transpired ; the presumption therefore,, is, that if any instructions-on these points were given or requested, the law was correctly expounded.

The last error assigned, is, the instructions to the jury, that if the plaintiff could have'received any portion of the money, and failed to do so, on the offer by the maker to pay him, he, the plaintiff, must bear the loss.

The offer of payment, was by the maker, the primary debtor : if the money due on the note, or any portion of it, was tendered to the indorsee while he was the holder of the note ; if he refused to receive it, and by means thereof so much has been lost of the debt, he is chargeable with the neglect; and according to my conceptions of the law and justice of the case, he must sustain the loss. The pendency of the Suit was no objection to his receiving the money,

Judgment affirmed.

       3 Stewart,271

       1 Ld. Raym. 753-1 Burr. 373.

       Bayl. 164, 280 1 Saund. P. & Ev.272.

       1 Saund. Pl. & Ev. 293, and authorities cited therein.

       Chitty, jr. o

       ib.49.


author: By Mr. Chief Justice Saffoljk

text:
    BAYLOR versus SCOTT.
    When a sheriff sell» property upon an execution, which is encumbered by deed of trust, on which a sum of money is to fall due some months after the. sale, the sheriff cannot legally adjust the trust debt, of his own authority, by payingthe money to become due upon it, out of the proceeds of the sale.
    The plaintiff in execution — not the sheriff — is entitled to the benefit of a trust deed on payiug off the debt secured by it; and the trustee will be bound to* execute the trust.
    Where a sheriff, in his return, offers an excuse for not paying over the whole of the money, which is insufficient, the Court would be bound to disregard such excuse, in a proceeding against the sheriff.
    in a proceeding against a sheriff, his own return is not conclusive in his favor, either as to the law or the facts involved.
    The act of 1807, giving a defendant in execution a summary remedy against a sheriff for failing to pay over an excess collected by him on such .execution,, provides that such defendant shall have the same remedy that plaintiffs in execution are entitled to against a sheriff, for failing to pay over money coK lected; but that act must not be so construed as to extend to defendants in. execution the remedies provided for plaintiffs in execution, by subsequent statutes, whereby the limitation as to the time of commencing the proceeding is omitted, the time of notice abridged, and the penalty increased.
    The act of 1807is to be construed with reference to Jaws then u\ existence.
    Baylor, who had been a defendant in execution,, instituted a proceeding, by motion, in the Circuit Court of Jefferson, against Scott, the former sheriff1 of that county, for failing to-pay over a sum of money, which he alleged, the said sheriff had received on the execution, beyond what was sufficient to satisfy it. The judgment against Baylor was for $749 22 cents, besides $51 28 cents costs. In virtue of an execution issued thereon, Scott, the sheriff, sold property to the value of $1047 87 1-2. In reference to. two slaves, part of the property sold, the sheriff’s return shewed that they were sold subject to a deed of trust in favor of one Steel, for $398 39 1-4; that the whole of the property sold amounted to $1047 81 1-4 j leaving, after deducting the claim under the deed of trust, $649 39 1-4 to be applied on this execution.
    The plaintiff in the motion "objected to the authority of the sheriff to adjust any demands but that of the execution. In urging this objection, he offered the deed of trust in evidence, to shew the true amount due on it, and the time when it became due. He also offered to prove that 'he did not owe Steel part of the amount set forth in the return, and that the plaintiff in execution had not purchased the trust debt: all which evidence the Court rejected; and decided that the sheriff’s return was conclusive as to the matters set forth in- it; and that the return not shewing a surplus or excess, the motion could not be sustained.
    The notice given to Scott of the motion to be made against him, purported to have been given during the same term at which (on the fourth day thereof) it was to have been made.
    The parties appeared, and the motion was continued. About two years had expired from the time the execution was issued, until the time when the motion was brought.
    The questions presented for the decision of this Court, involved the legality of the instructions given and refused by the Court below; and that of the judgment in overruling the motion.
    Crabb, for Plaintiff, insisted
    that as it appeared from the return that there was an overplus, the sheriff in such case, could not save himself from a judgment against him, by shewing how he had disposed of the money, otherwise than by paying it over.
    That the sheriff’s return is conclusive in his own favor, (said he) is an extraordinary doctrine; and one that will certainly not be sanctioned by this Court. What right had the sheriff to pay away the money to satisfy our debt ? We had not made him our agent for that purpose. But the return in fact shews, that the property was sold subject to the lien of Steel. If this is to be taken according to the plain import of the language, the property was sold in its encumbered situation, and was still liable for Steel’s debt; yet the sheriff took it upon himself to pay it out of the money he had received from the sale, lessened as that amount had been by the lien! IIo might as well state in his return, that he had disposed of the surplus for charitable purposes, or that he had scattered it to the four winds of Heaven, Deeds of trust are often matters of grave investigation before courts of justice : had the sheriff a right to assume the character of a judicial officer, and .to determine on the validity of this deed of trust ? Had he a right, also to pay it before it was due, out of the debtor's money, without his consent ? There is a law aur thorising the plaintiff in execution to pay off a lien previous to sale ; but he cannot still take the property out of the hands of the trustee : he can only thereby put himself in the place of the cestui que trust. The sheriff can find no justification for his proceeding under this act — Aikin's Digest, 208. But, under the charge of the Court, it seems to have been of no consequence what disposition the sheriff had made of the money not paid over, provided he set it forth in his return. If he had thrown the money away, and had so returned it, it would have been equally available with the payment of Steel’s debt.
    The record of a former motion of Baylor against Scott, was introduced in evidence. In that case Baylor moved the Court to have the judgment entered satisfied. Baylor was unsuccessful; but the motion went off on a matter of abatement. The point in controversy there, could therefore be no defence on the ground of former trial.
    - 1 Starkie 191, 198, 195, 199, 201 — 10 Viner’sAbr.. 446 — 3 Wilson, 240 — Norris’s Peake, 64.
    Peck, contra,

    urged, that if on considering the entire case, this Court should be of opinion that the Court below came to a right conclusion, although some points may have been decided wrong; they will nevertheless - affirm the judgment. Taking the sheriff’s return altogether, and permitting it to explain itself, it will be apparent that the property was not sold subject to the lien, although that word is used. It is plain from the connexion that the meaning was, that the property, was sold for a certain amount, subject to a deduction (from the amount) of the debt to Steel, secured by deed of trust. The-amount for which the property was .sold also illustrates the meaning. It was sufficiently large to free-the property from incumbrance.
    But the plaintiff mistook his remedy. By the act of 1807, the defendant in execution is allowed the same remedy against the sheriff that was allowed to the plaintiff in execution. This same act gave the summary remedy in favor of the plaintiff in execution. This act, which is the only one on which the defendant in execution can rely, required the party making the motion, to give the sheriff ten days previous notice of the same ; and the motion mustbe made at the next succeeding term of the Court, when, if judgment was rendered against the sheriff, it was for the amount in his hands, and fifteen per cent, per annum, until paid. • The plaintiff in the motion has, not come tip to the requirements of this law, either in the time of notice given, or in the time of commencing the proceeding; yet this is the only law that gives a summary remedy to the defendant in execution. This law, making the remedy the same as that in favor of the plaintiff in execution, could not be construed to refer to future laws' that might be passed in favor of such plaintiff. Yet the plaintiff in this motion seems to have intended to proceed under a subsequent act in favor of the plaintiff in execution, which increases the penalty against the sheriff. Surely, the Legislature in providing a remedy against a ■sheriff for neglect of duty, and in affixing a penalty, did not look into futurity, and designedly make that remedy and that penalty depend on a contingency. In penal laws there should be all possible certainty. The reason of the case may illustrate the meaning of the Legislature. It would surely be wrong that the defendant in execution should have it in his power •to postpone the remedy for three, four, or five years, and then make his motion and recover the amount with five per cent, per month, in the way of damages. But by the act of 1807, if the sunimary remedy was resorted to at all, it must be at the next Court In this case, the party delayed proceeding nearly three years: he thereby lost his right to proceed in this summary way.
   By Mr. Chief Justice Saffoljk

This was a proceeding instituted by motion in the Circuit Court, by the plaintiff in error, against the defendant, as late sheriff of Jefferson county, for failing to pay over to said plaintiff in error, who was defendant in an execution, a certain sum of money, which it was alleged said sheriff had levied and collected out ■of the plaintiff’s property, it being an excess over the amount necessary to satisfy the whole judgment, with interest and cost; and which, on demand, had been refused.

The facts,- as disclosed by the record, are the following.- At October term, 1830, of the Jefferson Circuit Court, a judgment was rendered in favor of Mc'-Gregor & Darling against Baylor, the plaintiff in error, for $74-9 22, besides $51 26 cents costs of suit, upon which a fi. fa. was issued to Scott, as sheriff i by virtue of this execution, he levied Upon and sold property of the plaintiff to the value of $1047 87 1-2. Part of the property thus sold, consisted of a negro-boy about ten, and a girl about twelve years of age, the proceeds of which amounted to $650.

In reference to these two slaves, the sheriff returned upon the execution, that they were sold to the plaintiffs in execution, by .their agent — (subject to a deed of trust to Thomas M. Adkins trustee, to secure a debt to Maj. J. Steel, for $356 69,-due four or five-months thereafter, with interest for twelve months, and the costs of said deed,, and twelve- dollars for the hire of fine boy for three months, he having been hired by the defendant in execution, before the levy, for that time, and the wages paid to him, making the whole lien of Steel $398 39 1-4.) The return also stated the proceeds of other property levied upon and sold at the same time, making with the sum mentioned $.1047 81 1-4 cents, and leaving, (as the return reads,) after deducting the claim under the deed of trust, &e. $649 39 1-4 to be applied on this execution.

It is also shewn, that on the trial of the motion, the plaintiff in error, in urging his objection to the authority of the sheriff to adjust the demands mentioned, other than the amount of the execution, and to the manner of his doing so, offered in evidence said deed cf trust, to shew the true amount due upon it, and the time payable ; also offered to prove that the plaintiffs in execution had not purchased the trust debt, and that he did not owe Steel the twelve dob-lara, allowed as hire for the boy; all which evidence the Court rejected. He then moved the Court to disallow these last mentioned payments ; but the Court' overruled the motion, and decided, that the sheriff s return was conclusive as to the matters set forth in it, and that the return not shewing a surplus or excess, the motion could not be sustained.

From the bill of exceptions it further appears, that in bar or opposition to the motion, the defendant introduced as evidence, a record, shewing, that a previous motion had been made in the case of McGregor & Darling vs. Baylor, at the instance of the defendant, against said sheriff, to compel him to enter a credit on the execution to the full amount for which all the property levied upon, had been sold, and that the motion had been overruled.

Upon consideration of the case now before Us, this motion was also overruled.

The present plaintiff assigns for error various causes ; embracing—

1. The rejection of his evidence, shewing the circumstances under which the sheriff had allowed, and. paid, other demands than the execution.

2. The decision, that the sheriff’s return was conclusive evidence as respects the matters therein contained, so that no excess in his hands could appear.

3. The judgment overruling the motion.

According to the views we entertain of the law governing motions of this hind, a brief investigation of the subject will suffice; especially of the two first points presented for consideration.

If it were conceded that the sheriff had authority to adjust the trust demand, and extinguish the supposj ed lien under the deed, it would follow as a necessary consequence that his conduct would be subject to legal scrutiny Tor any alleged abuse of that power, if while liable to the summary redress for failing to pay over money made on an execution, or to restore an excess, he shews by his return a different application of the money, the Court would be competent to investigate the circumstances, so far at least as dis-> closed by the return and other parts of the record, and if it appear to have been misapplied; to hold him responsible, as in case of payment ill .his own wrong: or should it appear that a sheriff has assumed a judicial power, or private agency, with which he was not clothed ; and by his official return he offers the exercise of this, as an excuse for not accounting for money which he otherwise should, the Court would be bound to disregard the excuse, and decide the case as if unconnected with it. The cause stated in this return, of there being no excess, is, that the sheriff gave a priority to a trust debt, &c. having sold, the property subject to that lien. Was he authorised to do so ? It is provided by statute, that a plaintiff in execution may have the benefit of a deed of trust, on paying off the debts secured by it; and on such payment shall be placed in the situation previously occupied by the person for whose benefit the trust was executed, and the trustee shall execute the trust for him in the same manner. Thus it appears, that if these plaintiffs in execution had paid off the trust debt, the trustee alone, pursuant to the directions of the deed, not the sheriff, by virtue of an execution, was auüiorised to adjust the demand. But in this case it doss not even appear that the trust debt had been extinguished, or in any manner transferred; the-contrary presumption exists. The remark is also due, that the language of the return, so far as it speaks of the slaves having been sold subject to the deed of trust, seems to import a sale of the property under the in-cumbrance, with notice that the lien was to continue', and be subsequently enforced against the property. Other parts of the return explain that the contrary course was pursued, but as we think, without the authority of law. That a sheriff’s return is not conclusive in his favor, in a direct proceeding against him, in rola'ion to either the law or facts involved, is equally clear.

The foregoing reflections have been made, not for the purpose of shewing any wilful dereliction on the part of the sheriff, 'or even that injustice has been done, but to shew, that the authority of the sheriff' lias been mistaken and transcended; and that if from other considerations we should not feel authorised to reverse this judgment, the principles- of the decision below have not our sanction.

It is only necessary farther to enquire, if the plaintiff in error was entitled to redress at the time and in the manner sought by his motion ? The right' is not contended for, otherwise, than on the authority of the statute. The only statute relating to the. right of a defendant, in execution to obtain restitution of any excess of monies collected against him, is the act of 1807. This act provides, in such case, that if the sheriff fail or refuse to pay such excess or surplus, when required, he “ shall be liable to the like penalty and judgment in favor of the debtor, as is prescribed and directed by law, in favor of the plaintiff against the sheriff, for not paying the principal, interest, and costs, levied on an execution.” Another section of the same act, (the law above referred to) inprescrib-ing the mode of redress to the plaintiff in execution, against a sheriff who has actually made the 'money on execution, or-rendered himself responsible for it, as in case of a voluntary escape, provides, that it shall be lawful for- the creditor or plaintiff in execution-, upon a motion, made at the next succeeding Court from which such unit shall issue, and on t.en days notice given, to demand judgment against such officer for the'money mentioned in such writ, or so much as shall be returned levied thereon, with interest at the rate oí fifteen per' centum per annum thereon, from the return day of the execution, until the judgment shall be discharged, and such Court shall award judgment and execution accordingly. It may be observed, that in this proceeding the plaintiff in error has failed to pursue the course prescribed, in two respects. Instead of the ten days notice as required by the statute, the notice purports to have been given during the same term at which, on the fourth day'thereof, the motion was to have been made: in fact, the motion wras entered on the rule docket, bearing equal date with the notice. But as the parties are shewn to -have .appeared to the motion at the first term, and it does not appear that the sheriff objected to the notice, but that the cause was continued until the next term, let it be conceded that this defect, if otherwise available, has been waived. Then how stands the other objection, that the motion -was; not made at the next succeeding Court from whence ■ the writ issued, but two years or more thereafter,

The act of 1819, prescribes no "form of remedy, being only declaratory of the sheriff’s duty, and of the amount of penalty incurred by liis failure to pay the same over to the party entitled: it therefore can afford no aid in the determination of this question.

The act of 1826, is the only remaining one which can be supposed applicable to this case. It provides, in substance, that whenever any sheriff shall fail or refuse to pay over any money collected by him upon any execution, on the application of the plaintiff, it shall bo lawful for the Court, upon one day’s notice being given to said sheri if, and on motion of the pialu-tiff in execution to render judgment against the officer thus failing, and his security, or any or either of them, for the amount of money thus received, together with fi.^eper centum upon the amount of the execution, as damages for each and every month detained.

Now, the enquiry arises, does the act recited, of 1807, providing for the restoration to the defendant ■ in execution, of any excess of money collected, entitle him to the same remedy prescribed to plaintiffs in execution by the statute of 1826, last referred to? The penalty is materially different, having been raised from fifteen per cent, per arm,, as by the former, to Jive per cent, per month as authorised by the latter act: also the notice has been reduced from ten days to one. It is in the nature of a penal statute, requiring a strict construction, If it can he applied for the benefit of defendants, as nothing of the kind is therein expressed, it must be by implication, and on the principle alone, that the Legislature has substituted the latter act for that section of the act of 1807, to which, defendants, by a different section of the same act, were referred for their remedy, in case of any surplus or excess withheld from them, both which provisions have already been quoted. If by fair construction, the early act provided for defendants in reference to excess,, not only the cotemporary remedy allowed to plaintiffs in execution, but also any modifications of it that might exist when subsequently resorted to, the changes in the statute would inure equally for the benefit of defendants : but is such construction warranted ? The language of the early statute as already quoted, is, that the sheriff “ shall be liable to the like penalty and judgment in favor of the debtor, as is prescribed and directed bjr law in favor of the plaintiff,” — not, as is, or may be prescribed.

It is necessary to notice another difference between the remedy, as'prescribed by the early and late statutes referred to, or at least, in the express provisions of the two : it is that to which I have previously adverted, that the act of 1807 authorises the summary proceeding only “ upon a motion made at the next succeeding Court” from which such writ’ issued; when that of 1826 contains no express limitation of the time for making the motion. It may be a question whether the several statutes on this subject, should not be regarded as acts in pari materia, so as to extend the requisition to them all, even in respect to plaintiffs, that the motion shall be made at the next succeeding term of the Court from which the execution issued. This, however, is not a question now presented for consideration, and no opinion is intended to- be intimated upon it. But with, reference to the debtor or defendant in execution, the act of 1807, containing his only authority for restitution to an excess, in the summary mode, he must adopt that remedy, if at all, within the time prescribed. We can not, on the principle of the statutes being in pari materia, disregard the time, and apply the provisions of the subsequent act to the case of debtors ; reasons to the contrary are, that the relief to debtors or defendants in execution, is not mentioned in the latter, the remedy is more rigorous, and is of a penal character, and the limitation of time is not expressly waived by it.

It can not be maintained that the defendant in error has waived this objection. True it is, that he appeared and made defence to the motion in the Circuit Court, and it is not shewn that he claimed ‘this exception; but he being successful below, was under no necessity of spreading the exceptions he may have taken to the decisions of the Court, upon the record, and nothing appearing of record can have the effect to negative the idea that he may have urged this objection to the Court, and been overruled ; if he did, the plaintiff’s bill of exceptions would not necessarily shew it. Besides, the limitation in this respect, stands on a principle different from the ordinary limitation of actions; in respect to the latter, a subsequent promise to pay, would constitute a waiver of the defence, and by the rules of practice defendants are required to plead it, so that their failure to do so, implies a waiver. Here, the question relates not to the right involved, but to the summary jurisdiction of the Court, and we think the failure to plead •this matter does not constitute an estoppel. Advantage of it is now claimed in argument, and this ground alone was sufficient to have justified the decision of the Circuit Court, overruling the motion ; that different reasons were there given for the decision does not vitiate the result. If the judgment should be reversed, and the cause remanded, there is nothing to prevent the defendant in error from availing himself of this objection to the remedy on a future trial.

We arc therefore unanimous in the opinion-that the judgment must be affirmed.

       Aik. Dig.208, sec. 6.

       Aik. Dig.162. sec. 13.

       Aik. Dig.173, sec. 74,

       Toul. D. 316, sec

       Aik.Dig.174, sec. 76.


author: By Mr. Justice Hitchcock :

text:
    DOBBS, et al. versus DISTRIBUTEES OF COCKERHAM.
    .The Orphaiw’Court, in this State, has jurisdiction in a case of adminiss tration, where the truth of an .inventory is contested ; .and may try and decide the question, whether, or not, certain property belongs to the estate.
    In settling a contest of this kind, the Orphans’ Court has authority to sumtnon a jury to determine questions of fact, on which the parties interested may be at issue.
    Where, in such a case, it is decided that certain property, not embrace od in the inventory, belongs to the estate, the Court has power te direct a division of such property among the distributees ; or if that cannot bo done, a public sale of the property should be ordered, as provided for by the statute, and the proceeds of such sale should be ■ divided, and it, is error for the Court at once to give judgment against the administrator in cash, in favor of the distributees, for the value ■ of the property as assossed'by the jury.
    The jurisdiction extended to the County Court in cases of this character, does not deprive parties of their remedy by action on the bond; • or by bill in chancery.
    , This case came to the Supreme Court; on the .final-decree of the Orphans’ Court of Pickens, in relation, to the settlement of an estate. .
    ■ Dobbs and Cookerham, administrator and admin-istratrix,- of the estate of William W. 'Cockerham, hay-' ing been required to make final settlement and distribution of the estate of their intestate, the defench ants in error, heirs of said estate, filed a statement, alleging, that, the administrator and administratrix had not made . a complete inventory of the estate ‘} that certain slaves mentioned and described in the statement, liad been wholly omitted, and no return mads thereof, and that the «aid da veo had gone into the possession of the said plaintiffs in error.
    ■ A demurrer having been tendered on the part of the administrator and adminl^rahi.-; to tide statement, aid it Doing dL.oloeod vo ti'.o Court that no inventory had ever been bled, the demurrer was overruled, aiid leave given the reprcseuir.iiveo -to hie an inventory, and to answer to the statement.
    The answer of the plaintiffs in error, set forth, that the slaves mentioned in the statement of the defendants, were not of the estate of their intestate, but had been loaned to him during his life lime, and properly belonged to the administratrix and her children! that only four of the said slaves were in the possession of the intestate at the time of his deathj sidue had been distributed in his lifej children of the administratrix, and possession of intestate al the period Mjj had since that time remained in the pJpsQSsion of the administratrix, as her own property.
    The defendants in error demurred,! answer, which being overruled, they replied, oüfleave, denying the loan, &c. and averring the slaves to be the property of the estate, and subject to distribution.
    After a demurrer to line reply, issue was joined. upon these allegations, and a jury being summoned to try the facts, they found the lour slaves above mentioned, subject to distribution, and assessed their value and the value of their Irire, while in possession of the plaintiffs.
    A motion in arrest of judgment having been then argued and denied, the Court rendered a final decree, including a decision upon the whole value of the. estate, as before inventoried and sold, and the amount of the verdict of the jury ; and gave judgment,for a certain ámoimt in money, in favor of the distributees of Cockerham’s estate,
    ' Tó reverse this decreé thé plaintiffs took their ‘writ óf error.
    Peck, for Plaintiffs in error
    Argttéd, that thé dis-tributees, in proceeding against thé répre&élítatiVéS of the estates mistook their remedy; and thé Court mistook its powers.
    The County Court for'the transaction of orphans’’ busiiiess,- (he said,) isa Court of special jurisdiction. It has not general common law powers. If we would know what such a Court may do, we must look-to the statutes from which its powers are derived. It can. exercise no powers but such as have been express* ly delegated to it. It may be true, that a revising tribunal will not be very strict as to the formality of the proceedings of such a Court as this, provided it keep within its jurisdiction; but it will be held to. strictness in regard'to thé limits of its jurisdiction.
    We have no law authorising this Court to enquire whether certain property did, or did not, belong to the estate. It became the duty of the representa* fives, to return to Court within three months, an in* ventory, upon oath, of the goods and chattels, rights and ‘credits, of the estate of the intestate; which, if received by the Judge, was to be made a matter of record. Such record cannot be afterwards impeach*. ed, except for fraud.
    The inventory became the foundation, on which the settlement and decree should have been made. With thé sale bill, it forms the foundation of all the subsequent proceedings. A notice is required to be given of the time of the settlement. At this time the pasties interested, may come in and make their 0l> jections to the account stated./ And then the Judge is not to call a jury and try the issue, but he is to hear all that is to be said; and, if it seems to be necessary, he may re-state the account; or he may appoint auditors, before whom the parties may appear,' and make their statements and explanations. These auditors may then re-state the account, and return the. same to Court. Such is the mode pointed out -by the statutes; but we find nothing there to justify this proceeding. There are cases in which a Court may impannsl a jury, as in a case of contempt in assessing a fine; also, where it shall be suggested that the administrator has appropriated to his own use a portion of the funds of the estate, which is denied by the administrator on oath. These, perhaps, are the only two cases where the Court possesses the power. The funds here spoken of must be money : it must be the funds of the estate. The return shews what these funds are. In such case a jury maj^ be called ; but the Court cannot impannel a jury without express authority.
    Where a question arises, whether certain property does, or does not belong to the estate, the persons interested can have the question investigated, and the administrator is entitled to a common law trial.
    But can the Court go back, behind the inventory, and raise a question as to the right of certain-property, whether it belonged to the estate, or to the representative in another right ? I contend that the County Court has no such power.
    But if the jurisdiction of the Court were admitted,the proceedings would still be erroneous. The-veiv diet'goes beyond the issue, and the judgment beyond the verdict. The only issue was, did certain. slaves belong to the estate? The jury, find that a part of them did belong to the estate : they find also the value' of thosé slaves, the time they were in the possession of the administrator’ and administratrix, and the value of their hire for that time. And the Court, instead of directing that these slaves should be embraced 'in the inventory, and go in the ordinary course of distribution, gave judgment against the administrator and administratrix, for their value in money, and also for the amount of their hire,
    Shobtiiidge, contra.

    There has been a settlement óf the estate.. If there should appear to be error as to the fonr negroes (but I contend there was none) there would bo no need of overturning the entire settlement, or otherwise disturbing the final distribution of the estate, except as to those slaves.
    The most important question is, whether the Judge- ■ of a County Court has a right to call on an adminis* trator to make settlement for property, belonging- to the estate, not embraced in the inventory, as well' as for property that is so embraced ? Is the Judge limited to the inventory and sale bill ?
    By reference to our statute, it will be seen that the County Court, as to final settlement and distribution of the estate, is one of extensive and ample jurisdiction. And my Lord Coke says, that wherever a.power is granted, all is granted that is necessary to carry the power into effect. It does not vitiate the proceedings that the Judge called in the aid of a jury. If the statute had not given that power, it would still have been incidental to the power granted: If the Judge had the right to settle the matter, hé had a right to call jii aid — whether-you call that aid jurymen or auditors. But the act authorises a jury in any case where it may be necessary. The Judge, in this case, was more regular and formal in his proceedings than in the County Court. He required a statement, and a regular issue to he made up between the parties.
    If the act had not given the power of summoning a jury, &c. yet the J udge would have had the power in the way it is possessed by a chancellor, who may at any time have the aid of a master, of auditors, or of a jury, as to matters of fact. The Judge might have decided all he did decide, himself: is there, then, any reason for overturning the proceeding, because, out of abundant caution, he called in the aid of a jury ?
    , As to the final judgment or decree being erroneous, I contend that it was the fault of the administrator and administratrix, that this property was not-em-hraced in an inventory, and could not, therefore, go in the ordinary course of distribution; they were, therefore,-liable to a judgment against them for. the •■value of the slaves, and the amount of the hire in money.

       Aik. Dig.252.

   By Mr. Justice Hitchcock :

The plaintiffs in error, who are administrator and administratrix of William W. Cockerham, deceased, were cited before the Judge of the County Court of Pickens county, to make final settlement of their administration, and to make distribution of the estate among the heirs. At the hearing before the. Judge in October, 1833, the defendants in error, a part of said heirs, filed a statement as follows :

“ The distributees, in the above case, allege and aver, that the said administrators have not made a true and perfect and -complete inventory of the personal estate of their intestate, but that they have neglected and omitted to return in said inventory, the following, negroes, to-wit, Hannah, &c. (some nine or ten in number.) The distributees farther allege, that the aforesaid negroes came to the possession or knowledge of the said administrators, and ought by them to have been embraced in their inventory of the estate of their intestate, and should go in course of distribution among the distributees.”

To this statement the plaintiffs in error demurred; and it appearing that they had not filed any inventory, leave was then given them to file one, which was done, and which was recorded.

On argument, the demurrer was overruled ; and leave was given them to answer or plead to issue; which, at their request, they were to make under oath. Leave was also given the distributees to file an amended statement; and leave being given to .either party to have subpoenses,- and commissions for testimony,, the case was continued to January, 1834, at which time the administrators filed their answer; in which they state,—

“ That the intestate, before his marriage with Nancy Cockerham, (who is one of the respondents) was intermarried with another woman, since deceased, by whom he had children, to wit, the said Wm Cockerham and-Cockerham, who, by her intermarriage with Elsey 'Hunt, became the mother of Wm. and Huron Hunt, who,, in this cause, appear in the character of complainants, under the denomination of dis-tributees -of William. W. Cockerham: that after the decease of his first v/ife, 'William W. Cockerham intermarried with the said Nancy Cockerham, daughter of Elisha Estis, by whom he had children, to-wit, Catharine Cockerham, now Catharine Dobbs, Polly Cockerham, now Polly Dobbs, Patsey Cocker-ham, now Patsey Shannon, and Elisha Cockerham: that after his intermarriage .with the said Nancy Cockerham, the said Elisha Estis did, for reasons not certainly known to these respondents, lend or give to the said William W. Cockerham and his wife, the said Nancy, the aforesaid negro woman Hannah, and upon the condition, that the said Hannah and her increase or offspring, should, after the termination of said loan or gift, or after the death of the survivor of the said William W. Cockerham and Nancy his wife, be the property of the children of the said Nancy Cockerham: that the said William W. Cocker-ham, in his life time, on the 15th October, 1806, acknowledged in writing, under his hand and seal, (which writing is ready to be produced) that said negro. Hannah was loaned to him, and that he never had any right, title, claim, or demand to the said Hannah, or to her increase, but that they did, and ■ought of right and justice to belong to the children of his then wife, Nancy Cockerham, which children are the persons above named : that at the time of the death of the said William W. Cockerham, there were in his possession, only Hannah, Martin, Frank, and Lucy, of her increase; the others of her increase, had previously been distributed among the children of the said Nancy, by the authority which they believed they possessed under the'terms of the original gift or loan: that the said negroes, nor any one or more of them, have never been in the possession or knowledge of the respondents, as administrator and administratrix, as part of the estate of the said William W. Cockerham, but that they have ever been in the possession of those to whom they were distributed as aforesaid, in the life-time of the said William W, Cockerham, except the four, which as aforesaid, were in the possession of the decedent at the time of his death, and since then they have remained, and still are, in the possession óf'the said Nancy Cocker-ham, as her rightful property, during her life-time according to the terras of the original gift or loan, and then to become the property of her children.”

To this answer, the distributees fried a demurrer, which upon argument was overruled, and leave given them to reply ; upon which they filed a replication, stating that the said Hannah was not given as a loan, but absolutely, and without condition or limitation : that the negroes were all in the. .possession of the decedent in his life-time, and at the time of his death, and that they are subject to general distribution aniong all the heirs of the said decedent, and not exclusively among the children of the said Nancy ■Cockerham; they deny all the allegations in the answer,‘and put themselves upon the country.

To this replication, there was a demurrer, which was overruled, and the administrator had leave to join issue, which was done, and the sheriff was ordered forthwith to summons and impannel a jury of bystanders, to try the issue, which rvas done, ajrd a verdict, was rendered, finding the four negroes subject1 to general distribution, as a part of the property of the estate of William W. Cockerham; the jury also assessed the value of each negro, and the value of the hire of each, during the time they had been in the possession of the administrator and administratrix. A motion was then made to arrest the judgment of the Court, .which was overruled, and the Court then proceeded, to render judgment, as well upon the verdict as upon .the .evidence adduced, and taking the value of the estate previously inventoried and sold, and the value of the negroes and their hire, as assessed by the jury. proceeded to decree distribution in money to the various distributees, fifteen in number, and directed e;o3utioj.s or attachments, as might be required, to' enforce the decree of distribution.

This case has been brought by writ of error into this Court, and several assignments have been made and argued. The first question which will be noticed in the view which the Court has taken of the case, is — Whether the County Court has jurisdiction, in a case where the truth of an inventory is questioned, so far as to try the right of property? This cannot be clone by the eclesiastical courts in England. An inventory is there required for the benefit of creditors, legatees and parties in distribution, and it must, by statute of 21 Henry YIÍÍ, he exhibited on, oath, which the ordinary is bound to receive. The creditor may state objections to the inventorjq which the party is bound to answer upon oath, but no evidence is admissible to contradict the answer. If the creditor be still dissatisfied, he may have recourse to equity for relief; and it appears that legatees and distributees, though they may require an account from the administrator in that Court, cannot dispute there, the truth of the inventory. When a question of this kind is raised, the party is entitled ex de-bito justifies, to an assignment of the administration bond, and to sue in the name of the ordinary, when he can assign as a breach, the not exhibiting a true inventory. That Court having neither Common law or Chancery powers, is prohibited from taking juris-diction.

In the case of the Selectmen of Boston vs. Boylston, the Court say, “that upon consideration we are all of opinion, that the Probate Court in adjusting an account exhibited by an executor or administrar toi, are competent, having satisfactory evidence before them, to require an allowance of assets not inventoried or credited. But they say farther, that in the exercise of the authority j the Probate Court ought to employ its. discretion in rejecting or suspending the account- that the party may have his remedy at law, by allowing him to prosecute his remedy upon the administration bond. The reason assigned by the Court is, that to proceed in that summary way¿ woiitd deprive the party of the advantage of a trial xlpon moré formal proceedings and before a jury, to determine the facts contested ; and upon the whole tiew of that case, the Court directed a trial at law upon the bond, • They admit, however,- the power of tile Court to proceed.

In the case of Higbee, et al. vs. Bacon, adm'r, the Court decided, that the party at whose instance interrogatories have been proposed in the Court of Probate, ho an administrator touching his account, has a right to offer evidence to disprove his answers : in this case, the charge was, that the administrator had concealed monies and goods belonging to the estate:

We have looked into all the American authorities which- we can find here, but do not find any cases in the other States, on the point: The most ordinary course -appears to he, to proceed by suit on the administration bond, or by hill-in Chancery. The question is one of great practical importance, and is entirely new in this State, so far as we are advised. Upon a consideration of the case, however, and an examination of pur statute, we are of opinion, that the Court has jurisdiction, and that it was properly exercised in this case.

■ The Judges of the County Courts in this State, sitting as Judges of Probate,- have all the powers of Courts of Ordinary in. England, and by statute, various other powers are given to enable them to settle, and dually adjust every question that can arise in re-iation to estates.

By the act of 1821, executors and ‘administra-a tors are required, within three months, to return, iin-s der oath, a full inventory of all goods and chattels, rights of and debts due or accruing to the testator or intestate at the time of his death, which have come to their knowledge or possession; setting forth the times at which they are due, and whether by open account, promissory note, or bond; which is to be recorded. The Judge of the Court is to examine and audit all the accounts of ex'rs and adm’rs for final settlement, giving forty days notice of the time and place to all persons interested in the accounts, an,d if any person interested in the settlement shall make exception to the report of the Judge, the Court shall proceed to hear the proofs and allegations, and correct or amend the errors or mistakes, or refer them, to auditors to do the same, who are to make report at the next term of the Court, of their proceedings, for cor¡.-firmalion.

By the 24th section of the act of 1821, the documents and evidence of all settlements made with executors and adm’rs, are to be carefully preserved by tbe clerk, and the settlement entered of record ; which evidence, vouchers, documents and settlement shall' be good evidence in any suit for or against the executors and administrators, and shall not be impeached, except for fraud in .obtaining the same.

By the sixth section of the same act, (page 251,) the Court may, in all cases where it may be necessary, to have any matter before it tried by a jury, order the sheriff to forthwith summon and impannel a jury, to try the facts: and by the first section of an act of 1830, (page 252) all decrees by the Orphans’ Court, on fined settlements of the accounts of ex’rs or adm’rs, shall have the force and effect of judgments at law, and executions may issue for the collection of the several distributive amounts against them ; and when distribution of real or personal estates is decreed by the said Court, each distributee, heir, or devisee, may and shall have his or her writ of execution or attach* ment — one or both in the case of personal estate, and in case of real estate, a writ of habere facia's posses-sionem against the executor, administrator or guardian : and by the second section of an act passed in 1832, where an execution against an executor or admi'nistrator, on a final settlement,, is returned no property found, execution may issue on the bond.

The power to examine into the facts growing- out of a contested inventory, is not expressly given; but the power to adjust and audit all accounts of administrators, we think, embraces the case. The inventory is a part of the account. The settlement, when made, is to be final, and to have the effect of a jirdgment. A. jury is authorised to try every contested fact, as fully as it can he done before the Circuit Court, and a specific execution of the decree, when property is withheld, can be had by attachment. This remedy is much more speedy, and equally as safe to all parties, as the action at Common law, or a bill in Chancery. "Every question of law that can arise, can be reserved by bill of exceptions, and the revising power of the higher tribunals is equally open to the parties, as in other cases. We, therefore, do not feel at liberty to deny to the Court, the jurisdiction it has' exercised in this case.

By this opinion, we do not, by any means, intend to deprive distributees, &c. of the remedies by action on the bond, or by bill in chancery. They are undoubtedly concurrent, and the administrator may be proceeded against in eithér way.

We are of the opinion also, that the administra-' tors were properly subjected to the payment of hire for the time the negroes w'ere in their possession, and that there was no error in the mode in which the amount was ascertained.

But we think the Court did err, in charging the administrators with the value of the four slaves, as found by the jury, and in making- distribution in cash. By the verdict, the negroes were found subject to distribution, and should have been divided among the distributees, or if that could not be done, they should have been ordered to be sold at public auction, under the first section of the act of 1820,

It is, therefore, the opinion of the Court, that decree of the County Court be affirmed, exceptas to that part which charges the administrators with the value of the slaves, and the distribution made under it, and that, as to that, the same he reversed and the cause remanded.

       Toller on Ex. 252-3 Burr. 1942.

       Toller on Ex. 493.

       ib. 495

       2 Fonbl. Eq. 418.

       4 Mass. Rep. 318.

       3 Pick. 484.

       Aik.Dig.182, sec. 26.

       Aik, Dig.252, sec. 32.

       Aik. Dig.253, sec. 40.

       Aik. Dig.155. sec. 12


author: By Mr. Justice Thornton :

text:
    BARR versus WHITE.
    Although the Supreme Court will not examine into the merits of an application to an inferior Court, for a new trial; yet the competency of such Court to grant it, is a proper subject of revision,
    By the practice of the Courts of this State, the term of the Court is the limit within which the power of granting new trials is to be exercised.
    Whether in a proceeding before a Justice of the Peace for, forcible entry and-, detainer, the Justice has the discretionary power of granting a' new trial on merits — Qjuzre.
    Where, after a judgment for defendant, on unlawful detainer, a Justice, (aftey three days consideration) granted a new trial to plaintiff, and gave a new judgment, without notice to defendant; held to be error.
    White, the defendant in error, instituted a proceeding for unlawful detainer, before ‘a Justice of the Peace in Pickens county ; which, on trial, by a jury, resulted in favor of the defendant. Several days after the rendition of the judgment, the Justice, considered and granted a new trial to the plaintiff, and thereon the latter obtained a verdict. On certiorari to the Circuit Court, the decision of the inferior Court was affirmed, and the defendant brought the case to this Court, by writ of error.
   By Mr. Justice Thornton :

This was a proceeding had under the statute of forcible entiy and detainer, by which a Justice of the Peace is constituted a special Court, to try that matter. It was brought by certiorari into the Circuit Court, where upon motion to dismiss the errors assigned, they were so dismissed, (as the record states it) and judgment entered in affirmance of the judgment of the Justice of the Peace. ■ It is not material, I apprehend, that the mode of trial in the Circuit Court, was by motion, as stated, instead of, upon a formal joinder in error. The result, which was an affirmance of the judgment of the Justice, is all that We deem it important to consider.

There were many matters assigned for error on the record of the proceedings had before the special Court; hut we think it is unnecessary to notice more, than relates to the granting of the new trial by that tribunal, as is set forth on the record.

It appears, that on the 25th of January, 1833, a 'trial was had, and concluded by a verdict, and judgment entered thereon, and signed by the justice*, That on the.next day a motion was made, upon an-affidavit of surprise, by the defendant in error, for a new trial. Argument is heard on this motion by the ■attorneys of both parties, and the Justice takes an adoisare. Three days thereafter, viz. on the 29th of the same month, he determined to grant the new trial, and informed the parties of this determination. The record shews, that on the 9th of February following, a second trial was had, at which there was no appearance by the plaintiff in error, though solemnly called. The only notice, or proof of knowledge on the part of the plaintiff in error, that the 9th of February was the time, at which this second trial was to take place, which the record discloses, is a process issued by the Justice, commanding the sheriff to summons him, to appear and defend, and on the 25th of ■January, 1833, which was an impossible time.

The statute creating this special Court for the tri:al of forcible entry and detainer, does not expressly grant the power of allowing a verdict to be set aside after being rendered, and a new trial to be had. It is entirely silent on the subject.

I find great contrariety in the decisions of the Courts, as to the extent of the powers of inferior tribunals in regard to this matter,

In 2 Salk. 650 — Vinares Abridgment, title Trial, and ia Gih Bacon's Abridgment, same Title, C58, and in oilier English auiiicrili.es, I find the petition laid down without qualification, that a new trial csmict he granted by inferior Cauris.

In Tidd’s Practice, voi.2, 810, and 1st vol. ib. 478, it is said that verdict may be set aside, and now trial granted, for irregularity, but not on the merits.

In 1st Burr. 568, (Rex vs. Peters) it may be deduced from the opinion of the Justices, that a new trial may be granted bjr inferior Courts, not only for irregularity, but for surprise; and in Doug. 354, such seems to be the admitted doctrine.

In 1st Johnson’s Cases, 179, 181, 241, it is decided, that the Sessions Court of New-York, being ail inferior Court, canuct grant a new trial on ilie merits. See also New-York Cases in Error, 319, and 2 Johnson's Reports, 371, where the same principle is recog-nised.

The reason on which the doctrine rests, as may be gleaned from those authorities, seems to be, that there is an ample redress provided for this matter, by virtue, of the controlling powers inherent in the superior tribunals. If the verdict he against evidence, &c. the whole case case may be taken up to the superior tribunals, and a trial de now, be there had. It must be observed, that in this case, there is no such mode of redress; for the only effect, of the inode appointed to take the cause into the superior tribunal, that is by certiorari, is to correct, errors of law apparent on the record. In this view of the matter it would seem that there is danger of a failure of justice, unless a new trial, can be granted, especially in cases of surprise. I am inclined to think, that the same reasoning which induced a departure from the doctrine as once held, that no new trial could be granted after a trial at bar, would warrant the allowance of new trials in special, or inferior Courts, wherever, as in the case before us, there is no means by certiorari, cr otherwise, to redress the grivance. But, we de-cl me any positive expression oí opinion upon this point, as it is not necessary to a decision of the case that we should do so. For, even if it fcs allowable to grant new trials in this proceeding, it was, we are satisfied, erroneous to have set aside the first verdict and judgment, and to have proceeded, after the manner disclosed in the record, to a second. Nor are we to be understood as receding in this decision, from the extent to which we have heretofore gone, in refusing to review the exercise of the discretionary power of inferior courts, on the subject of new trials. A distinction necessary to be observed, obtains in this matter, which is, that though the merits, or grounds of an application, (as, for example, the sufficiency of the affidavit of surprise,) will not he examined into, yet the competency of the Court to grant it, (as where it should he granted after two new trials already had) is a proper subject of revision. The error committed in this case, is of the latter kind; and consists not merely in the granting of the new trial, but also in the failure to notify the plaintiff in error of -the time at which such new trial would be had; of which, in a case like this, it would be absurd to say, that in legal contemplation he is to be held cognizant, as it was evidently arbitrary with the Justice.

It is a settled doctrine on this subject, that no new trial can he allowed after the rendition of final judgment in the cause. According to our practice, the term of the Court is the limit within which, such discretionary power is to be exercised; it being considered that the judgment is inchoative, and the record still in the control and power of the Court, until its signature by the Judge, which is the last act of the term, and the consummation of its business. -Now, here, this provisional Court had terminated, or at any rate the destiny of the case was fixed beyond the-control of the Justice, by the rendition of judgment, as attested by his signature, on the day before any motion was made for the new trial.

It was also erroneous to proceed to judgment in the new trial, a's the Justice did, without any notice to the plaintiff in error when it would take place, or waiver of such notice by an appearance; one, or the other of which, is as necessary to uphold the second trial, as to render the first of any binding efficacy.

In any view of the case then, there was error in the Circuit Court in affirming the judgment'of the Justice, as last rendered by him ; for which the judgment of the said Circuit Court must be reversed, as also the.proceedings had before the Justice, after the first judgment rendered by him.

       2 Tidd's.p936


text:
    MOORE & BAKER versus COKER.
    Under the act of 1307, exempting freeholders from suit out ofthe county of their permanent residence ; it is not required, that the residence and freehold should be in the same county.
    The words “ permanent residence” and “ residence,” as used in that statute, are equivalent in signification.
    This action was commenced before a Justice of the Peace, and taken by certiorari to the Circuit Court of Shelby. The point there raised, ivas as to the privilege of the plaintiff in error, Moore, under the statute of 1807, exempting parties from suit, out of the county of their permanent residence. The proof was, that Moore was a resident citizen of St. Clair, at the time the action was commenced, and a freeholder in the county of Shelby. The Court below gave judgment for the defendant in error, to reverse which, a writ of error was taken here.
    Moody for Plaintiff in error.
    The point here presented is, whether the statute exempting freeholders from being sued out of the county of their residence, requires the freehold and residence to be in the same county. The language of the statute certainly does not make this requirement. It was passed during our territorial government; and its language is “freeholder of the territory”' — not freeholder of the county. It fequires that the freehold be in the territory,., and it requires nothing more, nor do I see any good reason for doing violence to the language, to give to the statute a different meaning.
    Erwin, contra.

    The language of the statute is vague and loose. It is therefore necessary to construe it according to its reason and spirit. In protecting the freeholder, it was surely not the object of the Legislature to set a trap, to involve creditors in costs. Suppose a man living in Jackson county, where he has no freehold, owns an acre of ground somewhere in the southern part of the state; how would the creditor know that he was not liable to be sued out of the county of his residence. The law could not intend to require of the creditor more than reasonable diligence in making inquiry before he commenced his suit. It could not have , been intended by the statute that the person about to bring a suit should do more than to examine the records of the county where the person to be sued might reside. If he should be found to have a freehold there, then he could not be legally sued out of the county of his residence : but if he should have no freehold there, his residence should not be regarded as permanent— and the restriction as to the county in which suit was to be brought would not apply. A freehold in another county would give no permanence to his residence, and would not come within the reason of the law. It does not appear by the bill of exceptions in this case, that the county of St. Clair was the defendant’s permanent residence. One object of the statute probably was to. encourage the obtaining of freeholds — permanent homes. The privilege was only intended for such as had such permanent residence.
   By Mr. Justice Thornton :

This was a suit commenced by warrant before a Justice of the Peace, in the county of Shelby, and removed by certiorari into the Circuit Court of that county. The amount in controversy is trivial; but the principle involved in the only assignment of error necessary to be noticed, is important; not only from its frequent recurrence in practice, but as it bears upon the personal privileges of the citizen.

The amount in controversy being under twenty dollars, the case was, of course, determinable by the Court alone; before whom, it appears from the record, the plaintiff Moore, who was defendant in the warrant, attempted to avail himself of the privilege conferred upon freeholders by an act of 1807, exempting them from suit, (except in certain actions, ©f which this was not one,) out of the county of their “ permanent residence.” The proof adduced in support of this exemption, was, “ that at the commencement of the suit, he was a resident citizen of the county of St. Clair, and that he was a freeholder in the State ; that freehold being in the county of Shelby.”

The Court below gave judgment upon this proof against the plaintiff, Moore.

The statute, I am satisfied, does not require, that the residence and freehold, should both be in the same county ; but that a freehold in any county in the State, and a permanent residence in any other' county, confers the privilege of exemption from suit, (in all those actions not excepted,) unless it be brought in the county of such residence. The only ground upon which the judgment of the Court below can be sustained, is, that the proof of the plaintiff in error, Moore, being “a resident citizen of the county of St. Clair,” does not come up to the meaning of the act of the Legislature, which uses the terms, “ permanent residence,” in the section conferring this privilege. Now, the terms, permanent residence,” and “ residence,” are indifferently used, as it seems to me, in this very section ; as also in other acts upon the same subject matter, as equivalent in signification.

In the very section above referred to, it is further provided, that one shall not be held to bail, “ if’sued out of tho district or county of his residence and freehold.” Unless these terms are held convertible, it involves a contradiction at least, not to say an absurdity. There can be no holding to bail without suit. •But he can not be sued out of the county of his permanent residence, (exceptin certain specified actions) of course he cannot be held to bail out of it. Then it must follow, that to be held to hail, he must b© sued in the county of his permanent residence and freehold ; or in other words, if permanent residence and freehold are both in one county, he can not be held to bail out of the said county. So, by the act of 1818, which is in pari materia, it is provided that, any person, whether freeholder or not, rnay be sued in any county where found, without regard to his residence, if oath be made that such person has gone from the county of his residence, for the -purpose of avoiding service of process. The question as to the e-quivalen.ee of these terms, is, I think, settled by the opinion of this Court, in the case of Read vs. Coker. There the plea contained the averment of residence merely, as the proof made here, and upon demurrer, it was held good by this Court.

Let the case be reversed.

       Aik. Dig.284, sec.146.

       Stewart, 2.