author: GOLDTHWAITE, X

text:
    ROBERTS vs. ADAMS.
    1. Where one signs his name to a blank piece of paper, with intent that it shall.be filled up, as a note or endorsement, he is liable on the same, although the person intrusted with it shall violate the confidence reposed in him, by filling it up with another sum, or using it tor another purpose, than the one intended.

      2. Such a blank, is a letter of credit to any amount which the person to whom the same is confided, may choose to insert in it.
    3. And if such a blank be obtained by a firm, when in existence, and be filled up by one of the partners after its dissolution, each partner will be liable to reimburse the moneys paid by the signer or endorser in blank to the holder.
    4. Where one lends his name on an instrument in blank, to partners as their security, and by the ueg’igence of one partner, and the fraud of the other, the lender is compelled to pay the . sum inserted i$ the blank instrument — he is entitled to reimbursement from either of the partners.
    5. It seams, however, that if a blank be entrusted to one for the purpose of inserting; a limited sum in it, or to be used for a particular purpose, and it be filled up with a larger sum, or used for a different purpose, than that-contemplated by the signer or ■ endorser of the blank, and the facts be traced to the knowledge of plaintiff, at the time he acquires possession of the instrument, it will proven! a recovery.
    Error to the Circuit court of Dallas.
    Assumpsit tried before Harris, J. The action was brought to recover of defendant for money paid, laid out and expended, lent and advanced, for defendant by plaintiff: also for money by plaintiff paid as security for defendant, and one Henry Ross, on a note executed by Ross & Roberts. Alfred Roberts and plaintiff, dated Mobile, twenty-fifth February, eighteen hundred and thirty-four, payable sixty days after the date thereof, to White & Seymour, for eight hundred dollars. Also for money plaintiff had paid as security to defendant, and said Ross, in the note above described, on which note a judgment was rendered in the Circuit court, at the Spring term, eighteen hundred and thirty-six, against plaintiff and said Ross & Roberts, in favor of Phillips & Edwards, for nine hundred and twenty-three dollars 56 cts., besides costs, which judgment had been paid and satisfied by plaintiff.
    On the trial of the cause, it-was proved, that the defendant had been in partnership with one Ross, and that while so in partnership, the plaintiff had signed, as one of the securities, for the firm of Ross & Roberts, a blank, to be filled up with a note of five hundred or one thousand dollars, for discount at the Montgomery branch bank. The blank not being so used, remained in the drawer of the store house of Ross & Roberts, until after their dissolution, when Ros3 had the closing of the business, and there was evidence conducing to prove, that Ross had, after the dissolution, filled up the blank with a note of eight hundred dollars, to .White & Seymour, negotiable at the State branch bank at Mobile, in payment of a partnership debt. The plaintiff had been sued on this note so filled up, and the amount recovered and collected on execution.
    ■ The defendant asked the court, to charge the jury, that the plaintiff could not recover, if the blank had been filled up by Ross, after the dissolution, even to pay a partnership debt — which was declined by the court.
    - The plaintiff in error, assigned the refusal of the court to charge as desired, as error.

      J. B. Clarke, for plaintiff in error.

      Phillips, contra.

      J. B. Clarke, for plaintiff in error.
    In this case, the questions for the court are — When did the liability on the note commence? Was it be"fore or after the dissolution? When did the contract with White & Seymour on this note, originate? This does not present any question, as to the rights of an innocent holder, or innocent security, or publication of dissolution, as seems to be supposed by the counsel for the defendant in error; but the bare question — when was the contract made?— as to which, see Chitty on Bills, (Ed. 1830,) 53, 61; Kil-gour-vs. Finlyson, &c. 1 H. Black. 155; Wrightson vs. Pulían, 1 Star. R. 375; 2 Ser. & Lowber’s R. 433; Wright, SfZ. vs. Pulliam, 2 Chit. R. 121; 18 Eng. C. L. 271.

      The case of Abel vs. Sutton, (3 Esp. R. 108.) is considered full to the point,'that Ross could not fill up the note after the dissolution, so as to bind Roberts. In the appendix to- the above edition of Chitty on Bills, 845, there is also a note of a case in 3 Vermont R. which is considered identical in principle, if not in fact.
    Phillips, for the defendant in error.
    The note in question was signed in blank, and though filled up by the principal maker for a larger sum, and for a different purpose than was understood by the security (Adams) at the time he signed the paper. It was competent for the principal to do so, and the case being free from fraud, the note is available in the hands of an innocent holder —(See Chitty on Bills, 33, and note, last edition; 2 Con. Rep. Sup. Court U. S. 214; 4 Campbell’s R. 97; 4 Mass. R. 45; 1 Selwyn’s N. P. last edition, 289; Chitty on Bills, 313, last edition.)
    No notice of the dissolution of the co-partnership having been given, it was competent for one member to bind the firm, more especially with one who had had previous dealings with the concern — (See Collyer on Partnership, 310, 311; Chitty on Bills, 58, 59; 6 Cowen’s R. 701.)
    The defendant (Adams) having paid the debt as security of Ross & Roberts, and not being privy to the filling ■up of the note by Ross, he is certainly entitled to recover of Roberts, as the money was paid on account of the co-partnership.
   GOLDTHWAITE, X

— It is insisted by the counsel for the plaintiff in error, as the note signed by Ross & Roberts, and the defendant in error, was put in circulation after the dissolution of the partnership, that it was not binding on Roberts, and consequently, that lie is not liable to reimburse the defendant in error. We do not consider this as the question presented by the facts stated in tbo bill of exceptions. Adams became the security at the request of the partuers, and if he was placed in a situation in. which the amount of the note could be legally recovered from him, there can be no doubt but that each of the partners is liable to refund him the money he has paid.

It would not have availed him as a defence to the note, when sued by White & Seymour, or their endorsee, to have proved every fact which is stated, unless he could have brought home to the plaintiff in that action, a knowledge of the circumstances under which his signature to the blank note was obtained, and no such knowledge is pretended. No rule can be better settled, than the one which determines that he who signs his name to a blank piece-of paper, with intent to be filled up as a note or endorsement will be liable, although the person entrusted therewith, shall violate the confidence reposed in him, by filling it up with another sum, or using it for another purpose than the one intended—(Collis vs. Emett, 1 Hen. Black. 313; Russel vs. Langstaffe, Doug. R. 496; Snaith vs. Mingay, 1 M. & S. R. 87; Crutchly vs. Mann, 5 Taunt. R. 529; Pasmore vs. North, 13 East. R. 517; Crutchley vs. Clarence, 2 M. & S. R. 90; Brahan vs. Ragland, 3 Stewart, 247; Violett vs. Patton, 5 Cranch, 142; Mitchell vs. Culver, 7 Cowen, 336; Putnam vs. Sullivan, 4 Mass. R. 45.)

If it was admitted that Roberts was not liable on the note, to a bona fide holder of it, because of the want of authority in his partner to bind him at the Lime it was filled up, this would not change the aspect of the case, as the defendant in error would dearly be liable to such a holder; as the blank, signed by him was a letter of credit to' any amount which those to whom he confided it might choose to insert in it. The case does not differ in principle from one in which the name of the defendant in error should appear as the only signature to the note. In such a case, if borrowed or obtained by the firm when in existence-, and filied up by one of the partners after its dissolution, each partner, it is conceived, would be liable to reimburse the money paid, terausethe credit and confidence was given to the partnership, and not to the individual.

- We do. not advert to the fact, that the note was passed away in payment of a debt, for which Roberts was unquestionably bound in law, it having been contracted during the continuance of the partnership. This debt has, in effect, been paid by A.dams; but however strong this equitable ground may appear, we prefer that our decision shall rest on the sole ground, that Adams lent. his name to the partners, as their security, and that they by their acts, (-the negligence of the one, and the fraud of the other,) have caused him-to pay the amount recovered against him. lie is clearly entitled- to reimbursement from either partner.

Let the judgment be affirmed.


source: Caselaw Access Project

author: ORMOND, J.

license: Public Domain

text:
    DOZIER vs. JOYCE.
    1. Every court of justice, of necessity has the power, whilst'the papers of a cause are in fieri, to supply a loss occasioned either by accident or design.
    2. Where the commissioner, appointed to take a deposition, has omitted to certify it by his signature, the deposition cannot be read in evidence; but the omission of the seals will not operate to exclude the depositions.
    3. Where a point reserved for the determination of the Supreme court, will with equal propriety adfnit of a construction which will support or defeat the judgment of the court below — the former will he adopted as the true construction. The party wishing t£ avail himself of an alleged error in the judgment of an inferior court must reserve the point, and present it on the record with reasonable certainty.
    4. A decision on the probate of a will, is a judicial proceeding, aud the court in which it is registered is a court of record, and if the presiding judge is also, e’erk of the court, he has authority to test the records of his court in both capacities.
    5. All courts in the United States, take judicial notice, that tribunals are established in the several States, tor the adjudication of controversies, and the ascertainment of rights.
    6. The certificate and seal which gives verity to a record, unless the record itself discloses the want of jurisdiction, establishes as well the light of the court, to adjudicate the matter contained therein, as that such facts were adjudicated.
    7. A witness cannot be examined to any distinct collateral fact, for the purpose of impeaching his testimony afterwards: — But if the witness voluntarily swears faksely in relation to niattejs not within the issue, he may be impeached by contradicting him.
    8. A defendant in trover, may defend himself, by shewing title in a third person, and so also may a defendant in detinue.

      9. But a mere trespasser cannot set tip an outstanding title in a third person, without connecting himself with it.
    Error to the Circuit court of Autauga.
    Detinue, tried before Judge A. Marlin. Plaintiff declared against defendant in detinue, for several slaves which defendant had taken from the possession of plaintiff and unlawfully detained. Plea — non-daiinet. Yer-dict and judgment for plaintiff.
    On the trial of the cause, the plaintiff proved that he acquired the possession of the slaves, the subject of the controversy, on his intermarriage with.one A R in South Carolina, in the year eighteen hundred and thirty-two. On first January, eighteen hundred and thirty-six, defendant seized and took said slaves from the^gent of the plaintiff without authority. The slaves had been demanded of the defendant, and he had refused to deliver them.
    Defendant introduced a deed of gift from A. R., conveying to her infant daughter, Elizabeth A. M. Ramsey, the slaves (and divers other property) the subject of the suit. The marriage with plaintiff took place about three weeks subsequent to the execution of the deed, and the execution of the deed, and the intended marriage, were spoken of before the marriage in the neighborhood.
    -The deposition of a witness was offered in evidence by defendant, to which plaintiff objected on the grounds:
    1. That the affidavit on hie in the clerk’s office, to ob-■lain the_commission to take said deposition, was without the attestation of the clerk- — nor did it appear by any jcertihcate of the clerk, that the same had been sworn to.

      2. That the commissioners who took the deposition did not certify the same under their hands and seals.
    On the first point, the court decided that the clerk might then be sworn, and state whether or not the affidavit had been duly made and sworn to, at the time the commission issued — to which plaintiff excepted. The second'objection was sustained by the court, and the testimony rejected, to which defendant excepted.
    Plaintiff offered in evidence, a paper purporting to be a transcript of the last will and testament of J. R., deceased,'of Greenville district, South Carolina, (said J. R. was the former husband of A. R.,) by which the property was bequeathed to A. R. for her life, and to her daughter after the death of said A. R. The will was certified to be a true copy, by the ordinary of the district, who was both judge and clerk of the court. Defendant’s counsel objected to the transcript, and the endorsements, going to the jury, as evidence, but the objections were overruled by the court, to which defendant excepted.
    Plaintiff introduced evidence of a conversation, between one Tandy Walker and the plaintiff’s wife, which was objected to by defendant, but was permitted to go to the jury by the court, for the purpose alone of impeaching the testimony of one of defendtmt’s witnesses, who was .proven to have been present, but denied having heard any such conversation — To the admission of this testimony, defendant excepted.
    After the trial had progressed some time, it was ascertained that the writ and declaration were lost, although the declaration had been in the hands of the jury, apd all the papers had been before the court, some time after the trial had commenced. Plaintiff moved the court for leave to substitute a new writ and declaration, which was permitted by the court — to which defendant excepted".
    • The court charged the jury, that if they believed that said deed was made on the eve of an intended marriage, and without the knowledge of the plaintiff, it was a fraud on his marital rights, and void, so far as the plaintiff was interested — to which defendant excepted.
    The court further charged the jury, that if they believed that the plaintiff had been in peaceable possession of the property, for more than three years; that a tor-tious taker could not avail himself of a better title in a third person — to which defendant excepted.
    The following is the certificate of the ordinary, endorsed on the will received in evidence:
    “ South Carolina: Edgefield district. I, Oliver Towles, ordinary of the district aforesaid, do certify, that the foregoing pages contain true copies of the will/' &c.— “that by the laws of the State, I, as ordinary aforesaid, am keeper of all books, papers and records, relating to the office of ordinary, or to the probate of wills, administration, &c., and am also sole judge of the court of ordinary, for the district aforesaid, subject to appeal to the court of common pleas; and that this certificate is in due form of law, and by the proper officer.
    “ Given under my hand and private seal, (there being no seal of office,) at Edgefield, this 28th day of March, A. D. 1837. Oliver Towles, O. E. D. [seal.”]
    “ The State of South Carolina. I, the the undersigned, Baylis J. Earle, one of the circuit judges of the Superior court of law, and a presiding judge of the district of Edgefield, do hereby certify, that Oliver Towles, who hath signed the within certificate, is, and was at the date thereof, judge and register of the court of ordinary, for the said district of Edgefield, having jurisdiction of the probate of wills, and the granting of letters of administration, on the estates of intestates, and of the accounts of executors and administrators; and also having the lawful custody of the records appertaining to the said court of ordinary: — That his certificate above is in due form, and entitled to full faith and,credit.
    “ Given under my hand, this 29th day of September, 1837. 13. J. Earle.”
    The following errors were assigned:
    1. The court below erred in allowing a new writ and declaration to be substituted, as shewn by the bill of exceptions.
    2. The court erred in the • several instructions or charges given to the jury, on the trial of the cause, which 'are stated in the bill of exceptions.
    3. The court erred in permitting the evidence to be given to the jury, of a conversation between the wife of the plaintiff in the court below, and Tandy Walker.
    4. The court erred in admitting a transcript of the will of the former husband, of the wife of plaintiff, as evidence.
    5. The court erred in rejecting the deposition, offered during the trial of the cause, by defendant below.
    6. The record shews no declaration, writ or plea.

      Parsons, for the plaintiff in error.

      Darg an if J. B. Clarke, contra:

      Parsons, for the plaintiff in error,
    contended—
    1. That defendant in detinue may prove title in a third person — (2 Stark. Ev. 494; 14 J. R. 128; 11 J. R. 529, 300; 1 Wash. R. 308; Carroll vs. Pathkiller, 3 Por. R.; 3 Stark, (trover) 1504.
    2. That a widow about to marry, may give part of her property to her child by the first husband — (2 Porter’s Rep. 527; 1 Tern. Rep. 408; 2 P. Williams’Rep. 674 ; 2 Brown’s Ch. Rep. 345; 2 Des. Rep. 264; Sug. Tend. 459; Harper’s Ch. Rep.)
    3. Where the pleadings are lost, copies on affidavit * should not be received- — (1 Stark. R. 187.)
    4. The court should not permit a witness to be contradicted on an immaterial or collateral point, to discredit him — (3 Stark. .1754, top; same vol., note 1, page 1739.)
   ORMOND, J.

— The questions of law arising out of the record, in this cause, will be considered in the following order;

1. Had the court the power to substitute copies of the writ, declaration and pleas in the cause, on an affidavit of their loss during the trial of the cause?

2. Was the court correct in rejecting the deposition of Lucretia Thompson ?

3. Did the court err in permitting the transcript of the will of John Ramsey, deceased, to be read in evidence to the'jury ?

4. Was the objection well taken, to the evidence admitted by the court, to impeach the testimony of one of the witnesses of the plaintiff in error?

5. Did tiic court err in charging the jury, that if the negroes sued for had been in the peaceable possession of the plaintiff, that, a wrong-doer coulcl not avail himself of a better title in a third person?

Every court of justice must of necessity have the power, whilst the papers of a cause are in fieri, to supply a loss occasioned either by accident or design. If this were not so, its progress could be stopped at any time, by the wilful abstraction of part of the papers of a cause from the files, or by a casual loss, consequent on the hurry and confusion of a nisi prius court. This is a conservative principle, which must inhere in ail courts; and in its application, is analogous to the familiar rule of evidence, authorising the reception of secondary proof, when the best evidence cannot be had. The records of the court being the highest grade of evidence, can in general be proved only by themselves; whether there may not be cases, when even this rule might yield to stern necessity, it is not necessary now to determine, as the papers permitted to be substituted in this case, were not records.

It was strenuously urged by the plaintiff’s counsel, that in every case in which secondary evidence of a written instrument is received, an opportunity is afforded the adverse party, of- questioning its loss, and - disputing the truth of the secondary proof, which was not permitted in this case, as the judgment of the court Was ex parte.

Tlie answer to this objection is, that the whole matter passed under the eye of the court. The presiding judge was certified of the former existence of the papers, not only from their having been read to the jury, as in this ease, but also from the memorials extant on the docket, and minutes of the court. The adverse counsel were present, and if any attempt had been made to foist into the cause untrue copies of the lost papers, the attempt could be resisted by counter affidavits, in which event the court would require the most plenary proof. In this case, the opposing counsel did not even suggest that the substituted papers were not substantially correct; we cannot therefore doubt, that the court was right in receiving thorn.

It has been determined by the Supreme court of New York, that a writ of fieri facias, after it had been levied and accidentally destroyed by fire in the officer’s house, that the lost paper could be replaced by a copy —(3 John. Rep. 418; White vs. Lovejoy; see also 2 Burrow’s Rep. 1072; 4 Term. Rep. 514.)

The objection to the reading of the deposition of Lucretia Thompson, is so inartilicially presented, that we are unable to say what point was intended to be raised for revision in this court. It is uncertain whether the objection was, that the commissioners'who took the depositions, did not certify it by their signatures, or that their certificate was not sealed. If the former was the alleged defect, it was sufficient to exclude i-t; if the latter, it was not. When a point, reserved for the determination of this court, will with equal propriety admit of a construction which will support or defeat the judgment of the court below, we must adopt the former as the true construction. The party who wishes to avail himself of an alleged error in the judgment of an inferior court, must reserve the point, and present it on the record with reasonable certainty.

The objection to the introduction of the transcript of the will of John Ramsey, is founded on the supposed insufficiency of the certificate of the clerk. • It is in these words:

“South Carolina: Edgefield District.

“I, John Towles, ordinary of the district aforesaid, do certify, that the foregoing sheets, &c. &c. — that by the laws of the State, I, as ordinary aforesaid, am keeper of all books, papers and records, relating to the office of ordinary, or to the probate of wills, administration of estates, or accounts of executors and administrators, and •am also sole judge of the court of ordinary for the district aforesaid, subject to appeal to the court of common pleas; and that this certificate is in due form, and by the proper officer. Given under my hand and probate seal, (there being no seal of office”)

The act of Congress of seventeen hundred and ninety, providing for the authentication of the records and judicial proceedings of the courts of any State, by the attestation of the clerk with the seal of the court annexed, together with the certificate of the presiding judge, must be held to reach such a case as this, or it is not provided for; as the act of eighteen hundred and four, for the authentication of records, not judicial proceedings, will not apply. The decision on the probate of a will is a judicial proceeding, and the court in which it is registered, a court of record, and if the presiding judge is also clerk of the court, he must have authority to attest the records of his court in both capacities. This has been done in this case.

In the case of Bessell vs. Edwards, (5 Day’s R. 368,) it was held, that when a justice of the peace holds a court of record, and has no clerk, he may certify these facts: that there is no seal, and that his attestation is in due form, and ,that a record thus certified, would be evidence in another State.

So, in the case of Huff vs. Campbell, (1 Stewart, 543,) it was held, that a certificate made by one of the judges of the Supreme court of Tennessee, certifying that an Individual was clerk of that court, was sufficient, notwithstanding the act of Congress requires such certificate to he made by “the judge, chief justice, or presiding magistrate” — it appearing from the' law of Tennessee, that 'there was no chief justice or presiding magistrate of that court.

It was also objected, that it did not appear, that by the law of South Carolina, wills are required to be proved and recorded. All courts of the United States take judicial notice, that tribunals are established in the several States, for the adjustment of controversies and the ascertainment of rights.

Some tribunal must necessarily be charged with the duty of proving and recording wills and testaments; and it might as well be demanded in any case where a record of another State is offered in evidence, that the law creating the court and defining its powers, must be produced, as in this! The certificate and seal, which gives verity to the record, establishes as well the right of the court to adjudicate the matter contained therein, (unless indeed the record itself discloses the want of jurisdiction) as that such facts were in truth adjudicated.

It follows, that the court did not err in admitting the transcript.

The objection taken to evidence admitted to impeach one of defendant’s witnesses, is thus stated in the bill of exceptions: “ The plaintiff introduced evidence of a conversation between one Tandy Walker and the plaintiff’s wife, which was objected to by defendant’s counsel, but was permitted to go to the jury by the court, for the purpose alone of impeaching the testimony of one of defendant’s witnesses, who’ was proven to have been present, but denied having heard any such conversation.”

It is insisted by the counsel for the plaintiff, that the court permitted the testimony of the witness to be impeached, by proving that he had sworn falsely, in a matter not material to the issue. It is not easy to ascertain from the record, what point was really intended to be presented. What influence the conversation between Tandy Walker and the plaintiff’s wife could have in the cause, or whether it was material to the issue or not, is difficult to say, without knowing what the conversation was, and under what circumstances it took place. Still less can it be ascertained from- the record, whether the witness thus sought to be impeached, had voluntarily denied having the conversation, or whether it was brought out by the cross-examination of the plaintiff.

The rule is, that a witness cannot be examined to any distinct collateral fact, for the purpose of afterwards impeaching his testimony by contradicting him. But if a witness voluntarily swears falsely in relation to matters not within the issue, we can see no reason why he should not be impeached by contradicting him. The reason for the former rule, usually given, that the witness cannot be presumed to come prepared to defend himself, on such collateral matters, fails, when the testimony is voluntarily given, or not objected to.

In the case of Carlos vs. Brook, (10 Vesey, jr.) in treating of this subject, Lord Eldon says, “It was not at all put in issue whether he (the witness) had been insolvent, or had compounded with his creditors; but having sworn the contrary, they proved by witnesses, that he who had sworn to a matter not in issue, had sworn falsely in that fact, and that he had been insolvent and had compounded with his creditors, and it would be lamentable if the court could not find means of getting at it, for he could not be indicted for perjury, though swearing falsely; the fact not being material—(See also Purcell vs. McNamara, 8 Vesey, jr. 324; Tucker vs. Welch, 17 Mass. 160; Staple vs. Spohn, 8 Serg. & Rawle, 317.)

In this case, from the /Construction we put on the bill of exceptions, it appears that the objection was not that the witness was compelled to answer to collateral facts, but to the right of the opposite party to contradict him, by showing that he had not sworn truly. From what has been said, it appears there was no error in this.

Could the defendant below protect himself by proving a better title in a third person?

That in the action of trover, the defendant may defend himself by showing title in a third person, is a rule frequently laid down in general terms in the books. To that effect are the cases cited by the plaintiff’s counsel— (Schermerhorn vs. Van Volkenburg, 11 Johnson’s Rep. 529, and Rotan vs. Fletcher, 15 Johnson’s Rep. 207.)

The action, in this case, is detinue; but it is not perceived that any substantial distinction exists between the two actions as to this question. A general or special property in the chattel sued for, is sufficient to maintain either action.

No case has been cited to sustain the position of the plaintiff’s counsel, that a mere trespasser can in either action set up an outstanding title in a third person, without in some way connecting himself with it. The contrary, however, has been held in the case of Duncan vs. Spear, 11 Wend. R. 54. In that case, it was determined that a mere prior possession obtained by a purchase under a void execution, was sufficient to prevent the defendant from setting up a title in a third person, without shewing some claim, title or interest in himself.

The court, in delivering their opinion, refer to the case of Daniels vs. Bell & Brown, decreed in the same court a few years before, in which the same' principle was asserted.

The two cases from 11 and 15 Johnson’s Reports, are briefly reported, but it appears in both cases that the defendant’s came lawfully into possession, which materially distinguishes those cases from this. In this case, the defendant obtained the possession of the slaves by his marriage. They are tortiously - taken from him by the plaintiff, without color of title on his part, or in any manner connecting himself with the title. To permit such a defence to prevail, would be to encourage violations of the law.

The argument most relied on by the plaintiff’s counsel, and therefore deserving an answer, is, that if this recovery is allowed against the plaintiff, he cannot af-terwards protect himself by the judgment, if sued by the true owner. If it were true, that by his tortious act he has subjected himself to two actions, he certainly cannot found an argument on that fact, for his impunity, when sued by one whose possession he has invaded. But we do not see that this consequence follows.

The defendant, as husband, became entitled to all the personal property of the wife, in her possession at the time of the marriage, and may hold it until a better title is asserted. Having, then, the right to the possession, he has a right to recover for an injury done to it; and if the daughter of the wife, by virtue of the anti-nuptial gift, should hereafter assert and maintain her title to the property, it is not easy to conceive on what principle she could recover of the plaintiff in error, for an injury done to the possession, at a time, when that possession lawfully belonged to another, and for which injury, compensation had been made.

The view we have taken of this point of the cause, renders it unnecessary to consider whether the court decreed correctly as to the legal effect of the deed made by the wife of the defendant, a short time before the marriage to her daughter. Even if the decision of the court, that such a conveyance on the eve of marriage, without notice to the husband, is a fraud on his marital rights, and therefore void, per se, was wrong, it could not by possibility prejudice his rights, as the court had previously decided right, on a point which was decisive of the case.

The judgment is affirmed.


author: COLLIER, C. J.

text:
    STURDEVANT vs. THE HEIRS OF MURRELL.
    1. By the act of eighteen hundred and twenty-one, abolishing the fictitious proceedings in ejectment, and substituting the action of trespass — the laws in force in relation to the action of ejectment, except so far as it related to the fictitious proceedings, were declared to be applicable to the action of trespass to try titles.
    2. But the English practice in relation to ejectment, has not been adopted in this State.
    3. The declaration, in trespass to try title, should describe'1 the land in controversy with so much particularity and precision, as will inform the defendant what he is to defend against, and the court for what it is to render judgment.
    4. Where one pleads “ not guilty ” to an action of trespass to try title, he is foreclosed from availing himself of an objection to the declaration — but may, in error, insist upon the insufficiency of the verdict and judgment — And
    5. A verdict and judgment, not specifying the lands, found illegally in a party’s occupancy, with such certainty as will show where they lie, or the number of acres and extent of lines,— will not be sustained.
    Error to the Circuit court of Mobile.
    Trespass, to try title, before Harris, J.
    Defendant plead not guilty. Yerdict and judgment for plaintiffs; to reverse which, a writ of error was taken.
    It was, in part, assigned in error—
    That there was no proper or sufficient description of the land sued, for, in the writ, declaration, verdict or judgment;- — wherefore, for uncertainty, and because no particular quantity is named, described or identified, tire said proceedings were erroneous.

      Stewart Thornton, for the plaintiff in error.

      Campbell, contra.

      Thornton, for plaintiff.
    The first assignment of error, Is the vagueness of the whole record, from the writ to the judgment, in the description of the land sued for. It seems that the old rule, was such, that the party plaintiff need not be specific in that particular; but that he could point out to the sheriff who had a habere facias possessionem, and take possession of the proper land at his peril. This rule was anomalous and dangerous. (See a case limiting it in this court — Sawyer vs. Fitz, 4 Stew. & Porter, 365, and the cases cited.) The preliminary-proof of the admission of the secondary evidence of the certificate of the register of the land office at Jackson, was insufficient. (See Mitchell vs. Mitchell, 3 Stew. &. Por. 84, and Bradford vs. Bradford, in this court.)

      Campbell, for defendants in error.
    The description in the declaration is sufficient — and if not sufficient, the defendant in the court below, could not object after the joinder of issue — (4 Day’s R. 448, note; Aik. Dig. 265, 266, 342; 3 Stew. 61; Harden’s R. 57, 58, 76; Adams’ Eject. 18, 20; 4 Binney, 77.)
   COLLIER, C. J.

— The first question raised in this case, is, as to the sufficiency of the declaration, verdict and judgment, to entitle the defendants in error to their writ of habere facias possessionem. The land sought to be-recovered, is described in the .declaration as “situate in the county of Mobile, on the south side of three mile creek, at, or near the place called the pass of suriague, bounded on the east by lands belonging to Benjamin Dubroca, on the north by three mile creek, and on all other sides by lands vacant at the time the same was granted to the said John Murrell, that is to say, on the seventh day of May, eighteen hundred and four.” The verdict merely negatives the truth of the plea, and finds the plaintiff guilty of the trespass charged m the declaration. The judgment adjudges to the defendant the possession, describing the land in the same general terms as are employed in the declaration.

By an act of the Legislature, passed in eighteen hundred and twenty-one, the fictitious proceedings in the action of ejectment, were abolished, and the action of trespass substituted as the mode of trying the right and title to lands, &c., and the laws then in force in relation to the action of ejectment, except so far as it related to the fictitious proceedings, were declared to be applicable to the action of trespass to try titles—(Aik. Dig. s. 41, 42, p. 265.) When the action of ejectment was first introduced into practice in England, very great certainty was required in describing the premises in controversy, by analogy to a praecipe quod reddat in a real action. But this severity has been relaxed in the courts of that country, and it is not now deemed necessary that the description should be so certain, that the sheriff, without the aid of the plaintiff, may know of what to give possession In such cases, the sheriff delivers the possession of the premises recovered, according to the plaintiff’s directions, who, in receiving it, acts at his peril — if he takes more or other land, he is a trespasser, and subjects himself to an action, or the court, in a summary way, will set right any injury the defendant may have sustained' by divesting him of the possession of land not embraced by the recovery against him — (Runnington’s Eject. 121, et post; Adams on Eject. 20, 21, 22, 23, 24, 25; 4 Day’s R. 448.)

The English practice on this subject has not been adopted in this State. In Jinkins vs. Noel, (3 Stew. R. 75,) this court say, “ that all reasonable and practicable certainty'of description should be required, and that the correct rule of law does not permit a successful plaintiff, by indemnifying the sheriff, or otherwise, to exercise an arbitrary discretion, as to the quantity or particular location of the lands to be delivered under his recovery; but that the verdict and judgment must ascertain, to a common intent, the precise lot or tract recovered, and that this must appear, either in the verdict and judgment, or by the usual reference to the declaration.” And in other States, a similar rule has been laid down. In Clark vs. Clark, (7 Vermont R. 190,) the court determined, that if lands are so imperfectly described in an action of ejectment, that it cannot be known for what the verdict was given, the judgment should be arrested. In Fenwick vs. Floyd’s lessee, (1 Har. & Gill’s R. 172,) it is said, that “an action of ejectment is a remedy given to the party to obtain the possession of lands which are wrongfully detained from him; and as the sheriff, after judgment, is to deliver the possession of the lands recovered, there must be such a description of them, as will enable him to effect that purpose.” In that case, the plaintiff in the ejectment claimed “two hundred and fifty-one acres, being part of a tract of land, called, &c. lying and being in the county,” &c. The entire tract was four thousand acres, and because a more particular locality was not given to the part claimed, the court held that the declaration, and a writ of possession conforming to it, were both defective.

In Seward vs. Jackson, (8 Cowen’s R. 427,) the relaxation of the rule which 'required a description of the premises in the declaration, to be so certain, that the sheriff might know from his execution, of what he - was to deliver possession, is said to have been productive of numerous and vexatious applications to correct the errors of the sheriff in delivering possession. And the settled rule of the Supreme court of New York, “ where a general verdict is given for the plaintiff, is,.to restrict him to the taking possession of so much only, as he gave evidence of his title to, on the trial”—(See also 1 Johns. Cases, 101.) In Gregory vs. Jacksons, (6 Munf. R. 25,) a verdict was returned in these words: “We, of the jury, find for the plaintiff, his term yet to come, in four hundred acres of land, parcel of the premises in the declaration mentioned, and in the possession of the defendant,” <fcc. The Court of Appeals of Virginia, .determined that the verdict was too uncertain to warrant a judgment for the plain-, tiff — inasmuch as it does not sufficiently designate the boundaries of the four hundred acres which it finds for the plaintiff, nor refer to any certain standard by which that defect may be supplied—(See also Clay vs. White et al. 1 Munf. 162)

In England, the action of ejectment is regarded as strictly, a possessory action, and determines nothing but the right of possession at the time of the demise laid in the declaration. Here, trespass to try title puts in issue not only the right to possession at the time of suit brought, but the fee simple title also, and the judgment is conclusive against both parties and their heirs. The inconclusiveness of a judgment in ejectment, and the unimportant consequences resulting from it there, compared with a similar proceeding here, may have induced the relaxation in the English practice. Be this as it may, we do not conceive that the ends of justice would be at all advanced by tolerating it in this State. Here, the lands have been surveyed, and numbered by surveyors acting under the authority of the federal government. These numbers may be easily ascertained by a person desirous of instituting a suit. If the lines have become so much effaced by time or other cause, that it is difficult to trace them, a county surveyor, with the aid of the field notes, may readily ascertain them. And if it is necessary before trial, to give to the premises in dispute a particular location, upon the legal sub-division of which it is a part, an order of survey may be obtained for that purpose, and the jury find by their verdict, the precise parcel of land, of which the defendant wrongfully withholds the possession from the plaintiff.

Again: if a plaintiff is put in possession of land, which he has never recovered, or of inore than he recovered, the defendant would be without an available redress, to compensate him for the time he was wrongfully kept out; where the plaintiff is unable to make good any loss he may sustain by the improper execution of the judgment; unless he bq allowed to look to the sheriff for reparation. In any event, his remedy would often be tardy and vexatious-, for unless the record discover what particular land was adjudged to the plaintiff, it would be necessary to show it by extrinsic proof, in order to set right the proceedings of the sheriff — a fact which it would be often difficult to prove.

Our conclusion is, that, in the action of trespass to try title, the declaration should describe the land in controversy with so much particularity and precision, as will inform the defendant what he is to defend against, and the court for what it is called on to render judgment. But, in the present case, the plaintiff in error cannot avail himself of an objection to the declaration — he is foreclosed by having pleaded not guilty in the Circuit court. The statute is express to the point—(Aik. Dig. s. 46, p. 266.) It is, however, competent for him to insist upon the insufficiency of the verdict and judgment.

The jury have found the plaintiff guilty of the illegal occupancy of lands belonging to. the defendánts, but where these lands can be found we are not informed. They are bounded on the east by lands belonging to Dubroca, on the north by three mile creek — but the record is entirely silent as to the extent of the lines running from north to south, or from east to west. These must be ascertained by a survey, aided by the Spanish Archives, in regard to the domain claimed by Spain in the year eighteen hundred and four, within the present limits of this State — a task requiring the exercise of judgment and industry. The land in dispute may, from any thing appearing to ns, contain five, or fifty thousand acres: the judgment does not warrant the issuance of an execution for any definite number, and because of its uncertainty, cannot be sustained.

The questions of law arising upon the hill of exceptions, we have not had leisure to examine, and as the defendant’s counsel has intimated that they will not arise upon another trial, we have declined their consideration.

The judgment is reversed,, and the cause remanded.


author: GOLDTHWÁITE, J.

text:
    ROGERS vs. RAWLINGS et al.
    1. By the terms of the act of Congress of the tenth of May, eighteen hundred, a forfeiture did not accrue immediately on the failure of a purchaser of lands, to pay within the period of time, for which a delay of payment was given. The lands did not revert, until after they were again offered for sale in the manner specified in the act.
    2. The act of Congress of the second of March, eighteen hundred and twenty-one, was a proposal to extend the term of payment many years, and required of the party accepting of the extension, to make a written declaration of his assent to . the provisions of the act: one of which declared, that the land on which the further credit was taken, should be ipso facto forfeited to the United States, if the payments were not made within three months after the day appointed for the payment of the last instalment, — which became due on the thirtieth of September, eighteen hundred and twenty-eight.
    3. The act of Assembly of this State, of the fourteenth of June, eighteen hundred and twenty-one, invested the executor or administrator of the decedent, with authority to claim the benefits of the act of Congress, on behalf of the estates they represented.
    4. All the acts of Congress for the relief of the purchasers of public lands, expired on the fourth of July, eighteen hundred and twenty-nine; and all lands sold on credit, and not paid for on the fourth of October, eighteen hundred and twenty- , nine, on that day, reverted to the United States: and every interest of a purchaser, or derived-from hini, was at an end.
    5. A forfeiture under this and similar acts, requires no act of entry on the part of the United States, to make it complete and effectual.
    6. The acts of Congress of eighteen hundred and thirty, and eighteen hundred and thirty-one, do not revive the estates of purchasers, previously forfeited to t.he United States,

      7. The act of .the thirty-first of March, eighteen hundred and thirty, gives a right of pre-emption of lands forfeited, to the purchasers, until the fourth of July, eighteen hundred and thirty-one, upon their paying the minimum price per acre, in addition to-the amount theretofore paid thereon and forfeited; -provided the price, including what had been paid, and the amount to be paid, should exceed three dollars and fifty cents per acre.
    8. And where one had paid more than three dollars and fifty cents per acre, when the purchase was made, his heirs and assigns became entitled to a patent without paying any more money.
    9. The act of the twenty-fifth of February, eighteen hundred and thirty-one, extended a similar benefit to the purchasers, their heirs or assigns, of all the forfeited lands which originally sold for less than fourteen dollars; if one dollar and twenty-five cents per acre had been, or should thereafter be paid.
    10. But the creditor of a purchaser, has no legal or equitable right, to insist on the gratuity bestowed in the act.
    11. A widow is not entitled to dower, of lands once purchased of the United States, but which have been subsequently forfeited.
    Error to the Circuit court of Madison.
    Petition for dower, tried before Lane, J.
    The plaintiff instituted proceedings in the Circuit court of Madison county, praying that dower might be allotted to her in two quarter sections of land described in the petition. The court below dismissed the petition, on the ground, that the husband-of the plaintiff, in his life time, was not seized of such an estate as to vest in his widow a right of dower, and this judgment was removed to this court by writ of error.
    The title to each quarter section was similar, and may be ’ thus stated. In February, eighteen hundred and eighteen, one Samuel Dickson, purchased the lands from the United States, paid one fourth part of the purchase money, and received a credit for the other three fourths, under the then existing laws. Certificates of the purchase were issued to him in the usual form, which he transferred by endorsement, to William A. Rogers, the husband of th§ plantiff. Rogers died in the year eighteen hundred and twenty, then being in possession of the lands, and holding the certificates of purchase issued to Dickson. One Weeden administered on his estate, and as administrator, claimed for the estate of his intestate, the benefit of the further credit allowed by the act of Congress of the second of March, eighteen hundred and twenty-one, under the provisions of which, he surrendered the certificates of purchase issued to Dickson, and received from the proper officer, others of further credit, which he afterwards sold and transferred to one Amos Johnson, under an authority supposed to be given by a private act of the legislature of this State. After several intermediate assignments, these certificates came to the possession of the defendant Rawlings in' October, eighteen hundred and twenty-eight, who afterwards obtained patents, which were issued in his name, as the assignee of Dickson. No payment, was ever made on the lands, except the one fourth paid by Dickson, at the time of the purchase, and Rawlings became entitled to patents, under acts of Congress of the thirty-first of March, eighteen hundred and thirty, and the twenty-fifth of February, eighteen hundred and thirty-one.
    The counsel for the plaintiff insisted—
    1. That the estate vested in Rogers, was of such a nature as to entitle his widow to dower.

      2. That her title was not divested by the sale of the lands made by Weeden, under the private act of the legislature. And
    3. That notwithstanding the forfeiture of the lands, - because of the non payment of the purchase money, and their consequent reversion to the United States, she was re-vested witti her original title and estate, by virtue of the acts of Congress of eighteen hundred and thirty, and eighteen hundred and thirty-one, and thus became entitled to demand dower in the lands sued for.

      Robinson, for the plaintiff in error.

      Hopkins, contra.
   GOLDTHWÁITE, J.

— It will not be necessary, in this case, to examine the first two positions assumed, as the conclusion to which we have arrived on the third, is in our opinion decisive of the claim.

The act of Congress of the tenth of May, eighteen hundred, prescribing the terms and conditions on which the sales of the public lands of the United States should be made, was in force at the time of the purchase made by Dickson, and these lands were consequently within its provisions, as they were but partially paid for. By the terms of this act, a forfeiture did not accrue immediately on the failure to pay within the period of time for which a delay of payment was given. The lands did not absolutely revert to the United States, until after having been offered for sale in a particular manner specified by the act. I am not aware that any effort was ever made to forfeit any lands under the provisions of the act of eighteen hundred, and perhaps it was never contemplated that the provisions of this act could be changed, so as to affect a purchaser without his assent to the modification of his contract. Be this as it may, it cannot be doubted that the contract could be modified with the assent of the purchaser or his legal representatives. The act of the second of March, eighteen hundred and twenty-one, was a proposal on the part of the United States, to extend the term of payment for many years, and required of the party accepting this extension, to sign a declaration in writing, of his assent to the provisions of this act, one of which declared the land on which the further credit is taken, shall be ipso facto forfeited to the United States, if the payments were not made within three months after the day appointed for the payment of the last instalment, which became due on the thirtieth of September, eighteen hundred and twenty-eight. No mode is pointed out by this act, by which the represen» tatives of a deceased purchaser, or assignee of a purchaser, might avail themselves of its benefits. The Legislature of Alabama, by its act of the fourteennth of June, eighteen hundred and twenty-one, (Laws of Ala. 344,) invested the executor or administrator of the decedent, with authority to claim the benefits of this act of Congress, on behalf of the estates which were represented by them. Acting under the authority conferred in this manner, Weeden, the administrator of Rogers, in behalf of his estate, claimed the further credit, and surrendered the certificates of purchase which had been transferred by Pickson; and certificates of further credit, under the act of Congress, were issued. Thus the contract of Dickson with the United States, under the act of Congress of the tenth of May, eighteen hundred, was modified, and a new contract entered into, to be governed and controlled .by the act of the second of March, eighteen hundred and twenty-one.

All the acts of Congress for the relief of the purchasers of the public, lands, expired on the fourth day of July, eighteen hundred and twenty-nine, until which time they had been continued by several other acts of Congress; and after giving the utmost latitude to their terms,' it will be seen that all lands sold on credit, and not paid for on the fourth day of October, eighteen hundred and twenty-nine, on that day reverted to the United States, and every interest of a purchaser, or derived from him, was at an end. It has hitherto been settled by decisions of this court, that the forfeiture under these and similar acts, requires no act of entry on the part of the United States, to make it complete and effectual — (Gill vs. Taylor, 3 Porter’s. R. 182; Kennedy & Moreland vs. McCartney, 4 Porter’s R. 141.)

As all the estate of Dickson, or those claiming under him, was thus forfeited in eighteen hundred and twenty-nine, it would not be necessary to make any further examination of this case, if it was not supposed that the previous estate of Rogers, and consequently his widow’s right of dower, was revived by the acts of Congress of eighteen hundred and thirty, and eighteen hundred and thirty-one.

The first of these was passed the thirty-first of March, eighteen hundred and thirty, and directs that all purchasers, their heirs or assignees, of lands forfeited, shall have a right of pre-emption of the same lands, until the fourth day of July, eighteen hundred and thirty-one, upon their paying into the proper office, the sum per acre, which shall, at the time of payment, be the minimum price per acre, of the public lands of the United States, in addition to the amount heretofore paid thereon and forfeited; •provided, that the price, including what- has already been paid, and the amount to be paid, shall not exceed three dollars and fifty cents per acre.

One of the quarter sections of land having been- purchased at a sum exceeding fourteen dollars per acre, more than three dollars and fifty cents was paid by -Dickson at the time when the purchase was made, and consequently his heirs or assignees became entitled to a patent, without their paying any more money. The act of the twenty-fifth of February, eighteen hundred and thirty-one, extended a similar benefit to the purchasers, their heirs or assignees, of all the forfeited lands which originally sold for less than fourteen dollars, if one dollar and twenty-five cents per acre, had been, or should thereafter be paid. Under this last act, the heir or assignee of Dickson became entitled to a patent for the other quarter section, as more than that sum was paid by him at the time of the purchase.

It is obvious, from the terms used by this act, that it was contemplated to bestow a benefit on the purchaser, his heir or assignee, and it must be considered as a mere gratuity on the part of the United States, to those individuals who were considered as the most fit and proper subjects to receive the donation or benefit. It could not be contended, with any propriety, that a creditor qf á purchaser would have any legal or equitable right to insist on this gratuity. If the case could be supposed, of one dying embarrassed with debt, the claim of the creditor, however morally just, could not be permitted to divest the heir of the purchaser, of the bounty conferred on him by the munificence of the government. In legislating on such a subject, the respective claims of creditors, widows and heirs, might well be considered and apportioned, but it is not for a court, in giving a construction to a statute, to depart from the plain and obvious intention of those who framed it, in order to substitute its own views of justice and equity, in the place of the clear and manifest directions of the law,

As we have arrived at the conclusion, that the land was ipso fado forfeited to the United States in eighteen hundred and twenty-nine, by the omission to pay the extended debt, and that the widow can claim nothing under the subsequent acts of Congress, it is not necessary to investigate any question which may be supposed to exist between the defendant, Rawlings, as the purchaser under the sale made by Weeden, and the heirs of Rogers, as it cannot in any manner affect the present claim.

Let the judgment be affirmed,


text:
    HITCHCOCK et al. vs. LUKENS & SON.
    1. To authorise a party to recov~r upon a count in the declaration, alleging a special contract, it is necessary to shew a contract substantially as alleged.
    - 2. But ~it is competent for a plaintifi where no special contract is • proved, if he have a good cause of action, to recover either in a ~neral indebitatus assum.psit, quantum meruit, or quan~ turn valeb ant, as the proof may warrant.
    3. Where one man has money in hi~ hands, which e.v equo ~t bono belongs to at~çther, if th~rebe no contract; modifying or controlling thc general liability to pay, the person entitled to the money may recover in an action for money had and received to his use.
    4. Nor is it necessary that there should have been any agreement between the parties, to entitle the plaintiff to maintain this action-for the law creates the priyity and the promise.
    5. If rnoh~y be given to one person to deliver to a third, the right to the money is transferred to the latter, and he may maintain - action.
    6. Nor doesthe statute of frauds interpose a barrier to a recovery in such a case-as the undertaking is not to answer for the debt, default, or miscarriage of ~nother, but to pay the money of another already received, or when received, to a third per~ ion.
    7. Where the execution of a trust creates a mere monied demand upon tha trustee for a sum certai~, or which may be reduced to a certainty by a reference to something else, there is no principle of law which rendersnecessary a resort to ~quity.
    8. If a contract under seal be so executed, as not to authorise a party injured by its breach to sue upon it, he may bring as-sumpsit, and make the contract, ihducernent by his declara-. tion, or give it in. evidence, without noticing it in the pleadings.

      Error to the Circuit court of Mobile.
    This was an action of assumpsit, by Lukens & Son, against Hitchcock & Williams.
    The declaration contained two counts — one special, and one common count, for money had and received.
    The special count alleged, that in consideration that the plaintiffs would relinquish their lien, acquired by execution, on a judgment against George Davis, on certain property of Davis, that the defendants promised, that as soon as the defendants should sell said property, as joint trustees of Davis, they would pay the plaintiffs. That in consideration thereof, the plaintiffs did relinquish their lien. That the defendants, as joint trustees, and for the benefit of plaintiffs, did sell said property, and received two thousand dollars, whereby they became liable — and upon this, a super se assumpsit was laid.
    The defendants pleaded non-assumpsit and the statute of frauds, in which issue was joined.
    There was a verdict for the plaintiffs, and a bill of exceptions taken by the defendants on the trial.
    The plaintiffs gave in evidence a deed of trust under seal, signed by George Davis and by the defendants only. The deed recited, that divers judgments (twelve) had been rendered against George Davis, (amounting, besides costs, to two thousand nine hundred dollars;) that executions bn those judgments had been levied on a steam-boat, fourteen horses, carriages, &c.; that the creditors had consented to extend the time of payment till the first of April: provided, all the property described could be secured, and held subject to the- payment of the judgments according to their priority; the trustees (the defendants) were to sell the property and pay the judgments, by the first of April. It was specially provided, that the defendants were not to be responsible for any loss or injury to the property.
    The plaintiffs also gave in evidence, that they had directed the sheriff not to proceed any further in their execution ; but it was not shewn, nor the return on it. They offered evidence to shew that their execution had precedence over the others, except as to one for two hundred dollars. They also offered evidence, conducing-to prove, that the defendants had sold a considerable portion of their property, and that they had received about eighteen hundred dollars; and also proved a demand of the defendants of payment.
    The. court refused to instruct the jury, that it was necessary that the plaintiffs should prove the execution and return, to shew that it was unsatisfied: also, that the contract being under seal, that the plaintiffs could not recover: also, that to recover on the first count, they must prove a special contract as therein declared on — and that if the contract proved was variant, they could not recover on that count: also, that if no other contract had been made by the .defendants than the deed of trust, it was not sufficient to charge them under the first count: also, that the deed did not furnish sufficient evidence of consideration, necessary to support the first count: and charged that the waiver of lien of execution, by the plaintiffs, as averred by the deed, was a sufficient consideration to support the promise in favor of the plaintiffs: also, that if the money was received by the defendants, as trustees only, that they could not be sued for it by the plaintiffs at law: and charged, that if the jury believed the defendants had made the money under the deed, that the plaintiffs’ execution had a precedent lien, and that there was a surplus after all expenses, and that for such a surplus, an action at law could be maintained.
    The defendants gave in evidence, a judgment recovered against them (for the loss of a negro killed on the steam boat) for one thousand dollars. They offered also evidence to prove, that they had employed a captain to manage the steam boat; that this employment was judiciously made, and that it was the captain’s neglect, and not theirs, which was the cause of the recovery against them. This last evidence the court rejected/
    The defendants requested the court to charge, that if the payment of the judgment of one thousand dollars, exhausted the money in their hands, that the plaintiffs weré not entitled to recover.
    The court did charge, that if over and abové the amount of said recovery and their compensation, defendants had received enough money to pay the plaintiffs, that the recovery against them for negligence should not effect them; but if. not enough, that the plaintiffs demand, if proved according to the construction of the deed, had precedence over the amount of that recovery against them. All which was excepted to and relied on as error.
    Thornton, for plaintiffs in error.
   COLLIER, C. J.

— To authorise a party to recover-upon a contract in the declaration, alleging a special contract, it is 'necessary to show a contract substantially as alleged. But it is competent for a plaintiff, where no special contract is proved, if he have a good cause of action, to recover, either, in a general idebitatus assumpsit,-quan-turn meruit, or quantum, valebant, as the proof may warrant. In the present case, we are not informed by the record that there was an express contract between the parties, either special or otherwise; we will then en-quire if there was any objection to a recovery upon the second count, for money had and received.

Where one man has money in his hands, which ex mquo et bono belongs to another, if there be no contract modifying or controlling the general liability to pay, the person entitled to the money may recover in an action for money had and received to his use. Nor is it' necessary that there should have been any agreement between the parties, to entitle the plaintiffs to maintain this action. In Neilson vs. Blight, (1 Johns. Cases, 205,) it was decided, that where an agent receives goods, on condition to pay a creditor of-the principal, (who is ignorant of the arrangement,) a# sum of money out of the proceeds, and the goods are sold, the creditor may maintain an action for money had and received against the agent. '

In Hall vs. Marston, (17 Mass. R. 575,) it appeared that one Bradford was indebted to the plaintiff and to the defendant, in the sum of thirteen hundred dollars, and remitted to the latter a bill of exchange, with these instructions : “ Please to do the needful with the bill, and when in cash, have the goodness to pay Mr. Jacob Hall, distiller, Boston, two hundred dollars, and take his receipt, and piase the balance to my credit, and you will much oblige,” &c.

The bill was accepted and paid, but the defendant did not pay any part of it to the plaintiff. And this action was brought to recover the two hundred dollars. The court considered it as well settled, that if one man promises another, for a valuable consideration, to pay a third a sum of money, the latter may maintain assumpsit for money had and received. It is further said, that there are many cases in which that form of action is supported, without any other privity between the parties, than what the law creates. “ Whenever one man has in his hands the money of another, which he ought to pay over, he is liable to this action, although he has never seen or heard of the party who has the right; if he cannot show that he has the legal or equitable ground for retaining it, .the law creates the privity and the promise.” So, if money be given to one person to deliver to a third, the right to the money is transferred to the latter, and he may bring this action— (To the s. p. Dumond vs. Carpenter, 3 Johns. R. 183; Raymond vs. Bearnard, 12 John. R. 276; Goodridge et al. vs. Lord, 10 Mass. R. 487; Tindlay vs. Adams, 2 Day's R. 369; 7 Har. & Johns. R. 157; Williams vs. Everit, 14 East’s R. 582; 1 Com. Dig. Assumpsit, E.) The statute of frauds' interposes no barrier to a recovery in such a case — the undertaking of a defendant is not to answer for the debt, default, or miscarriage of another, but to pay the money of another already received, or when received, to a third person. It is an agreement to perform an agency, and the reception of the money creates a sufficient consideration to support it.

The idea,, that if the plaintiffs received the money-sought to be recovered of them by the sale of property, conveyed to them in trust, to sell for the defendants benefit, they are not chargeable at law, is not well founded. Trustees, if faithless or perverse, may be compelled, in equity, to execute their trust, or they may be required to discover hoio they have executed it, and account to their cestui’s que trust. But where the execution of tbe trust creates a mere monied demand upon the trustee for a sum certain, or which may be reduced to a certainty by a reference to something else, there is no principle of law which would render necessary a resort to equity. In. the case at bar, it appears from the deed of trust, that the defendant was an execution creditor of one Davis, who being desirous of paying him, as well as others, who had executions against his estate, conveyed a considerable amount of personal property to the plaintiffs, in trust, to sell, and with the proceeds to pay the execution creditors áccording to their legal priority or preference. The plaintiff's sold a part or all the property, which yielded largely more, than a sum sufficient to satisfy the execution of the defendants, or any other having a prior lien. It is, then, clear, that the plaintiffs have money in their hands, which ex aequo el bona should be paid over to the defendants.

To- entitle the defendants to recover, there could have been no necessity for producing their execution, for any other purpose than to show its amount, and the time of its issuance by the clerk, and reception by the sheriff; and its production might be dispensed with, and the execution docket substituted to prove these facts, if the sheriff had failed to return it to the proper depository according to its mandate.

The deed of trust recites the agreement by the execution creditors, to delay a collection of their judgments until the first day of April after its execution, upon the property conveyed by the deed, being secured for their benefit. Now, it was not necessary to the maintenance of the defendants action, to show that they had caused the sheriff to withdraw the levy of their execution, and return it unsatisfied. If the defendants had, in despite of the agreement recited in the deed, collected their judgment, it would have been ah available defence, which it was incumbent on the plaintiffs to make out. But the defendants did show, prima facie, that they did not commit a breach of the agreement, for they directed the sheriff to suspend proceedings upon the execution.

It is argued for the plaintiffs, that conceding their liability, yet they are not chargeable in assumpsit; that their contract being under seal, some other action suited to its dignity, should have been brought. This argument would be very forcible, if the defendants were parties to the deed; but they are not, and consequently can maintain no action upon it. If a contract under seal, be so executed as not to authorise a party injured by its breach, to sue upon it, he may bring assumpsit, and make the contract inducement by his declaration, or give it in evidence, without noticing it in the pleadings, according as it may be necessary to make out his case— (Gouverneur et al. vs. Elliott and wife, 2 Hall’s Rep. 211.) In Arnold vs. Hickman, (6 Munf. R. 15,) it was determined, that where a judgment assigned by a sealed instrument was afterwards reversed, assumpsit was the proper action against the assignor; because the deed of assignment was not the ground, but only inducement to the action. And in Baird & Briggs vs. Blaigrove’s ex’or, (1 Wash. R. 170,) an action of assumpsit was brought upon a state of facts, in some respects not much unlike those shown in the present case. There, the declaration stated, that the plaintiffs having obtained a judgment against one Jeremiah Glenn, and being willing to give to him an opportunity of disposing of his property to the best advantage, to enable him to satisfy the judgment, an agreement was entered into between the plaintiffs, Glenn, and the. testator of the defendant, whereby the testator bound himself to see the balance of the debt, interest and cost, (which should remain unsatisfied by the property which Glenn might sell for that purpose,) paid by October, se-venteeen- hundred and seventy-five. That the intention of the agreement was to favor Glenn, by enabling him to sell his property at the highest price. That in consideration thereof, the testator afterwards, <fce. assumed upon himself to pay such balance when required. The declaration then avers, that a sale was made, and a balance still remained unsatisfied, of which, <fec. whereby, &c. nevertheless, efcc. The agreement stated in the declaration had three scrolls, one opposite each signature: but no part of the agreement, either in the beginning, conclusion, or attestation, says any thing about its being sealed. The court inclined to the opinion, that the agreement was not a sealed instrument, but without deciding that point, were of opinion that if it was, the action was sustainable. The agreement,” say they, “is only stated, as inducement to that, which forms the real ground of the consideration”—(See also Brickell vs. Batchelor, C. &. N. (No. Caro.) Rep. 109.)

In the case before us, the deed of assignment gave no right of action to the defendants.' The foundation of their action, is the receipt of money by the sale of Davis’ property ; the deed is but inducement to this, and serves to show from whom, and for what purpose the property was conveyed to the plaintiffs, and how its proceeds were to be appropriated.

There is no error in the charge of the judge to the jury, that the plaintiffs were not authorised to retain as against the creditors provided for by the deed, the amount of a recovery against them, for the loss of a negro by negligence on the steam boat, conveyed to them by Da,vis, if we are to understand' the negligence to be imputable to the plaintiffs. It is, however, needless to consider this point, as it seems to have been very clearly proved at the trial, that even allowing the plaintiffs to retain to the extent of the recovery against them, and .they would still have in their hands a sum, much more than sufficient to pay the amount of the defendants judgment, liable (according to the terms of the deed) to its satisfaction.

The proceedings below are free from objection, and the judgment must be affirmed.


author: GOLDTHWAITE, J.

text:
    DRIVER vs. RIDDLE.
    1. At common law, when administration was revoked pending a suit, the revocation might be pleaded in discharge of the action, but it was necessary for the plea to allege an administration of the effects, or that they had been delivered to the succeeding administrator. .

      2. An executor cannot avoid' his liability to settlement of the estate of his testator in the Orphan’s court, by resignation.
    3. The act of eighteen hundred andtwenty-oiie, (Aik. Dig. 179,) authorises an administrator to resign his authority, but provides that he and his securities shall continue bound for all assets not duly administered, or delivered to his successor.
    4. An administrator or executor, therefore, cannot by a resignation of his authority, avoid any of the liabilities imposed on him by law, — and he can only be'discharged from an action, by shewing an -administration or want of assets.
    Error to the County court of Jackson county.
    Assumpsit against an administrator.
    On the trial of the cause, defendant suggested, that since'the ljast term, he had resigned his administration, and that one Riddle, as sheriff of the county, had been appointed, which appeared to the court to be true, and matter of record in the Orphan’s court. Whereupon, defendant moved to be discharged from the suit, and he was accordingly discharged.
    Plaintiff then informed the court, he would not move to revive the suit against Riddle, as the present administrator; upon which, Riddle moved to be made defendant, as administrator de bonis non, which was .accordingly done. Riddle then declared he was ready for trial, and plaintiff refusing to proceed against him, the court non-suited plaintiff.
    Assignments of error:
    1. The court erred in discharging the administrator, as defendant, from the suit;
    2. In substituting Riddle as defendant; and
    3. In rendering judgment against plaintiff below.

      Parsons, for the plaintiff in error.
   GOLDTHWAITE, J.

— The sole question which arises in this case, is, whether an administrator, by a resignation of his office, can discharge himself from a suit in progress against him, without shewing an administration or the want of assets ?

The act of eighteen hundred and twenty-one, (Aik. Dig. 179,) authorises an administrator to resign his authority, but expressly provides that he and his securities shall continue bound for all assets which have not been duly administered, or delivered to the succeeding administrator. Such was the liability at common law, in cases where the administration was revoked pending the suit, and although the revocation might be pleaded in discharge of the action, it was necessary for the plea to allege an administration of the effects, or that they had been delivered to the succeeding administrator —(Garter vs. Dee, Freeman, 13; 1 Saund. Pl. and Ev. 373.) This court also has decided that an executor could not avoid his liability to settlement of the estate of his testator before the Orphan’s court by a resignation— (Thomason & Haynes vs. Blackwell, 5 Stew. & Por. 181.) Those authorities are satisfactory to shew that no administrator or executor can, by resignation erf his authority, avoid any liabilities imposed on him by law ; and that he can only be discharged by shewing an administration or want of assets.

In the case before .us, no attempt was made, by the previous administrator, to shew what disposition had been made of the assets which came to his hands, — and as the plaintiff has the right to pursue them, and, if necessary, to fix a personal responsibility on the administrator or his securities, if he has wasted the assets of the éstate, it was incumbent on the administrator to aver in his suggestion to the court, such facts as were sufficient to discharge himself. It is immaterial whether these facts appear by suggestion to the court, or by plea; as in either event, the plaintiff ought to have the opportunity to controvert them by issue. As no opportunity has been afforded him to test the right of the administrator to be discharged from liability, the court erred in discharging the previous administrator, and permitting the present defendant to become a party to the suit.

Let the judgment be reversed, and the cause remanded for further proceedings.


author: PER CURIAM.

text:
    EVANS vs. GORDON.
    1. Notes payable in bank are governed by the law merchant.

      2. And on such paper, it is not necessary to sue the maker to insolvency, in order to enable the holder to maintain a suit against the endorser — aliter, where the note is not payable in bank.
    3. Where the consideration of the note, is effects, which belonged to an estate of which the plaintiff is executor, the contract is considered as made with the individual, and he need not declare in his representative character in a suit on the contract.
    4. Where a negotiable note is endorsed immediately to a plaintiff, suit may be brought by him on such endorsement against the endorser, without disclosing that he received it as an executor.
    Error to the County court of Wilcox county.
    ' Assumpsit against the endorser of a promissory note. This action was brought upon a note endorsed by the plaintiff in error, which note was payable to the order of Thomas Evans, negotiable and payable at the Branch Bank at Mobile, and endorsed by said Thomas Evans.
    The declaration averred, demand and protest, and the pleas were —
    1. Non-assumpsit.

      2. That the note was not the property of the plaintiff, in his individual capacity.
    Verdict and judgment for plaintiff below.
    On the trial of the cause, plaintiff proved that the note was given for property which belonged to the estate of one Alexander Gordon, deceased, of whose estate plaintiff was executor. There was no proof that the maker @f the note had been sued to insolvency in any court of record.
    Defendant moved the court to instruct the jury, that they could not find a verdict for plaintiff, inasmuch as the suit was not brought by plaintiff in his representative character, and as it was not shewn that the maker of the note had been sued to insolvency, before the commencement of,the'suit against defendant. But the court instructed the' jury, that if they believed the property was not entirely in plaintiff, they could find for him, and it was not necessary, that it should be shewn that the maker of the note had been sued to insolvency, before suit commenced against defendant, in order to entitle plaintiff to a verdict. Defendant objected to the protest offered in evidence going to the jury, which objection was overruled by the court.
    It was here assigned as error:
    That the court erred, in refusing to give, and in giving the several charges to the jury, stated in the bill of exceptions.
    Porter, for the plaintiff in error.

      Phillips, contra.
   PER CURIAM.

— The note sued on, being payable in bank, is by statute governed by the rules of the iaw merchant — (Aik. Dig. 329, s. 11.)

It was not necessary to sue the maker to insolvency, in order to enable the holder to maintain a suit against the endorser, as is required by the same statute, when the note is not payable in bank. ^

The other objection is equally unsustainable. The consideration of the note was shewn to be property or effects belonging to the estate, of which the defendant in error was the executor; and in such a case, the contract is considered as made with the individual, and he need not declare inf his representative capacity, in a suit on the contract—(1 Chitty’s Plead, 205; 2 Williams on Ex’rs, 1149.)

Such is the rule, when the action is founded on the contract of sale, but in this case the note is endorsed immediately to the defendant in error, and the suit could alone be brought in the manner it is instituted.

Let the judgment be affirmed.


text:
    ROCHELLE vs. HARRISON.
    1. A husband can only be charged by the contract or admission ■ of his wife, in consequence of some authority actually given, or necessarily implied, from the circumstances under which she acts.
    2. But the circumstances under which plaintiff’s property went into-possession of the intestate of a defendant administratrix, may be shewn, in detinue, by proving a request from defendant to plaintiff to that effect, in the life time of her husband.
    3. A contract 'for the sale of negroes, which is executory, and which is intended to defraud creditors, does not pass the title: and an action brought on the contract, by the vendee against the vendor, for the slaves, cannot be maintained.
    4. The act to prevent frauds and perjuries, (Aik. Dig. 207,) avoids all gifts or conveyances in fraud of the rights of creditors— only, however, in favor of creditors and purchasers.
    5. A deed is not neeessary in a conveyance of personal estate; a delivery passes title, as effectually as the most solemn instrument.
    6.And such a delivery of a personal chattel, in derogation of the rights of creditors, is within the inhibition of the statute.

      7. What the law will not accord by suit, cannot be attained by fraud or force:
    8. Therefore, whenever the title to property has once passed by , an executed contract, it cannot be re-vested by re-caption, or any other modeaof acquiring possession.
    9. (In Massachusetts, a distinction is made between actual conveyances, and contracts sought to be enforced: the latter may be avoided — the former are binding.)
    10. (But in New York and. Ohio, conveyances void by statute, as against creditors and purchasers, are binding between the parties.)
    Error to Lowndes Circuit court.
    Detinue for slaves, tried by Pickens, J.
    An action of detinue, was instituted by Harrison, against Elizabeth B. and James Rochelle, for the recovery of two negro slaves. The defendants pleaded the general issue; and at the trial, a verdict was returned in favor of the plaintiff, against Elizabeth B., and in favor of the other defendant; on which judgment was rendered.
    The plaintiff claimed title to the slaves, by shewing a written agreement between himself and one George Rochelle, the husband of the defendant, Elizabeth, executed in April, eighteen hundred and thirty-two, by which Rochelle admitted that Harrison was seized and possessed of the slaves sued for, with others, and hired the same of him until the first day of January, eighteen hundred and thirty-three. By another writing, dated in December, eighteen hundred and thirty-three, signed by the said Rochelle, it appeared that heathen again hired the same slaves; but no time of hiring was therein specified.

      The plaintiff proved by one Neal, that he was employed as his overseer, and put on the plantation where Rochelle lived, in January, eighteen hundred and thirty-five; and that all the slaves on the plantation were put under his charge. That the slaves sued for, were too small to work in the field, and they remained in the house, waiting on Rochelle’s family. In January, eighteen hundred and thirty-six, Rochelle removed to Lowndes-borough, where he died in that year. Previous to the removal of the family of Rochelle, the defendant, Elizabeth, requested the witness to speak to Harrison, and request him to allow her to take the slaves sued for, with them, to wait on the family; and Harrison said to witness that she might do so, as they were too small to work in the field.
    The defendants objected to the admission of the declarations, either of Mrs. Rochelle or of Harrison, as forming no part of the res gestee — but the court admitted the evidence.
    After proof of the value of the slaves, and a demand of them, and refusal to deliver, the plaintiff closed his evidence.
    The defendants then gave in evidence, that all the slaves mentioned in the agreement for the hiring, had once belonged to George Rochelle; and offered evidence conducing to show, that if any sale was ever made by him to Harrison of the slaves in question, it was with an intent to defraud creditors of said Rochelle; and moved the court to instruct the jury, that if the sale was made- with such intent, Harrison, not having possession of the slaves, could not recover under such fraudulent sale and purchase. This .charge was refused, and the jury were instructed, that even if such sale was fraudulent as to creditors, yet the plaintiff could recover against the defendant; she being the administratrix of said Rochelle, but being neither creditor nor purchaser.
    The admission of the evidence, the refusal to charge as requested, and the charge as given, were excepted to, and a bill of exceptions signed. A writ of error was sued out, and the judgment sought to be reversed, on the supposed errors stated in the exceptions.

      Williams, for plaintiff in error.

      Williams, for plaintiff in error,
    to show that the admissions of defendant ought not to have been received, cited 2 Nott & McCord, 374; 7 Term Rep. 112; 3 Mun-ford’s R. 29; Wharton’s Dig. 249; 5 Conn. Rep. 93; 2 Starkie on Ev. 400, top and bottom; 6 East. R. 192; 1 Term R. 69; 1 Burr. 635; 2 Oh. Cases, 69; Bull. N. P. 286.
    To support the other points — 12 Wheat. 567; 8 Craneh. 72; 11 Wheat. 209.
    To shew that the plaintiff was not entitled to recover on the ground of the fraudulent intention towards creditors, he cited — 4 Peters’ R. 184; Case from Hill’s So. Ca. Rep. Gaston, adm’r vs. Ballard; 3 Craneh, 307, 242; •5 Craneh, 363; Aik. Dig. 207.
   GOLDTHWAITE, J.

— It is insisted, that the evidence admitted by the Circuit court, of the request made of Harrison by Mrs. Rochelle, and his answer ought to have been excluded, as the admission of a feme covert is not evidence to charge the husband or his estate, unless made at a time when acting under his authority as an agent. The rule is unquestionable, that the husband can only be charged by the wife, in consequence of some authority actually given, or necessarily implied, from the circumstances under which she acts—(Hawkins vs. Hatten, 2 Nott & McCord, 374; Denn vs. White et ux. 7 Term. R. 112; Sheppard vs. Starke and wife, 3 Munf. 29; Aveson vs. Ld. Kinnaird, 6 East, 192.)

But the application of this rule to the present case is ■not perceived. The attempt is not'made by.this action, to charge the husband or his estate, in consequence of any admission by the wife’. The question at issue was one relating to the title to the slaves.’ No title whatever in.the husband had been disclosed when this evidence wasmffered and excepted to: but, on the contrary, a written contract made with the husband for the-hire of the slaves in eighteen hundred and thirty-two and eighteen hundred and thirty-three, was in evidence. The plaintiff might have deemed it important, as it was certainly competent for him, to shew, in what manner ' the slaves were permitted to depart from the plantation occupied by his overseer in eighteen hundred and thirty-five; and for this purpose it was proper for him to shew a request made of him by Mrs. Rochelle, which he complied with. If the-action had been instituted against Rochelle in his life-time, such evidence would have been admissible, not as evidence of title, but as shewing the quo animo under Which he parted with the possession, or as a reason why possession was not then taken. It was, in fact, nothing more than an explanation of the circumstances connected with the removal of the slaves.

The question arising out of the exception to the instructions given to the jury, is one of more importance, if not of more intrinsic difficulty. The evidence subsequently introduced, was probably of a character calculated to shew that Rochelle, in his life-time, had sold the slaves to Harrison, under circumstances calculated and intended to defraud the creditors of Rochelle. It was evidently an executed contract, if we are to judge from the evidence 'stated in the bill of exceptions, and was not ex-ecutory, or dependent on some act to be subsequently performed by either party. Possession was actually delivered; or, if not, Rochelle was estopped from denying that fact, as he acknowledges a hiring from Harrison, in eighteen hundred and thirty-two, under his hand and seal. If the contract between Harrison and Rochelle was merely executory, and not exécuted, no title to the slaves would have passed by it, and the action could not. have been maintained. It is possible that a mere execu-tory contract, tainted with fraud, would not be enforced by a court of justice; but it is unnecessary now to decide this question, it not being presented in this cause. Considering the sale as an executed contract, it is directly within the terms of the second section of the act to prevent frauds and perjuries — which avoids every gift, grant, or conveyance of lands, tenements and hereditaments, goods or chattels, made to delay, hinder or defraud creditors or purchasers; but avoids it only in favor of creditors and purchasers — (Aik. Dig. 207.) It is not necessary to a conveyance of the title of personal estate, that it should be by deed; a mere delivery is as effectual for the purpose of passing the title, as if the property was conveyed with all the formalities usually attending the transefer of the title to real estate; and is equally within the intention and meaning of the statute.

The argument of the plaintiff in error, assumes, that when the fraudulent seller or donor, by any means recovers the possession of the property.fraudulently conveyed, and his purchaser or donee is compelled to resort to an action to re-gain the property, he ought not to be aided; because he is then seeking to enforce a contract void in law, or as against public policy. Let this position be' examined, and see the consequences to which'it must lead. By the covinous arrangement, the creditor or purchaser is first defeated in his rights — then the seller or donor, by fraud or force, obtains possession of the property, which it is admitted he cannot re-gain by suit. If the fraudulent purchaser, or donee is without redress — if his possession is violated by the seller or donor, — there is a direct temptation held out to obtain the'possession, by the most violent and iniquitous means. If no suit could be maintained according to the title, as settled by the parties themselves, it would'indeed resolve the rights of parties into mere questions of fraud or force; and anarchy and bloodshed must be the inevitable consequences of establishing such rules. It may be asserted, as a principle which scarce admits of exception, that what the law will not accord by suit, cannot be attained by fraud or force.’ Whenever the title to property has once passed by an executed contract, it can not be re-vosted by re-caption, or by any other mode of acquiring the possession.

It has been supposed that the case of the Executors of Gaston vs. Ballard (1 Hill, 406,) sustains the position assumed for the plaintiff in error. The facts of that case were as follow: Ballard was liable as security for a large amount, and in order to prevent certain slaves from being seized and sold to pay the debt for which he was liable, placed them in the hands of Gaston to keep for him. Gaston was to pay some of Ballard’s debts, as a hire for the slaves, which were delivered to Gaston in eighteen hundred and twenty- one, and remained in his possession until eighteen hundred and thirty: when some -of them run away, and came to the possession of Ballard, who immediately sold them to his son for' a fair and valuable consideration. Gaston’s executors sued Ballard, junior, and the court held that they were not entitled to recover.

It will be perceived, that in this case, there was no sale or gift of the slaves to Gaston; — the title was never in any manner conveyed to him, and remained in Ballard during the whole time, and he could have sued for and recovered the slaves, if the facts of the case are truly stated.

In the case of Phelps vs. Decker, (10 Mass. R. 274) it was held as the doctrine of the common law, that deeds of conveyance, or other deeds, made contrary to the provisions of a general statute, or for an unlawful consideration, or to carry into effect a contract unlawful, ip itself, or in consequence of any prohibitory statute, — are void ab initio, and may be avoided by plea; or on the general issue, non est factum, the illegality may be given in evidence. But in a later case, the doctrine was qualified, and the court took the distinction between bonds and contracts sought to be enforced, and actual conveyances of lands or other property. The former might be avoided : the latter were treated as actual transfers, and governed by the same rule as the payment of money, or the delivery of a personal chattel — (Inhabitants of Worcester vs. Eaton, 11 Mass. R. 375.)

In New York and Ohio, it has been held that conveyances, void'by the statute, as against creditors and purchasers, were binding between the parties, and^ould not be avoided — (Anderson vs. Roberts, 18 Johns. R. 515; Burgett vs. Burgett, 1 Ohio R. 219.)

Our opinion is in accordance with these cases, and the judgment of the Circuit court is affirmed.