text:
    PACK vs. PACK.
    1. The contract of an Indian is not frimct fade evidence of a consideration, but the consideration must be proved, and by two witnesses.
    2. The statute on the subject applies as Well to contracts between Indians, as to those between a white man and an Indian,
    Error to. De Kalb Circuit court.
    Assumpsit, before Boothe, J.
    This , was1 an action of assumpsit, brought oil & pro--missory note by the present plaintiff, against the present defendant. The plea of non-assumpsit was püt in by the defendant, who obtained a verdict and judgment in his favor.
    From a bill of exceptions, taken in the progress of the cause in "the court below, it appears that after the plaintiff had read his note to the jury, the defendant proved an admission, that part of the note was paid, which Was credited on the note, and that both plaintiff and defendant were Indians. Whereupon, the court charged the jury, that unless the plaintiff had proved the consideration of the note by two witnesses, that he could not recover, and they must find for the defendant.
    . This charge the plaintiff excepted to, and now assigned it for error.
    Martin, for plaintiff in error,

      Cochran, contra.
   ORMOND, J.

The question to be decided, in this case, depends on the construction of the statute on the subject —(Aik- Dig. 224.) “ In all cases where suit is brought on contracts hereafter made, to recover money or property from any Indian, the consideration shall be proved by two credible witnesses.”

It is .contended by the counsel for the plaintiff, that the law just cited does not apply but to cases where the contract is between a white man and an Indian, and not to cases where the contract is between Indians. We can see no reason for the distinction attempted to be drawn. The clause cited, is part of an act by which the jurisdiction of the State was extended over the Indian tribes, and the Indians subjected to our laws. The humane provision involved in this case, was doubtless intended to afford an additional security to the Indian, ignorant of our language and laws; and this might in many cases be as necessary between Indians, as between an Indian and a white man. The terms of the law áre general and embrace such a case as the present, and we can see no reason for restraining its signification. Not only might the mischief be as great in one case as the other,, but such a construction would, to a great extent, enable a white, man to defeat the object of the law, by making his contracts nominally in the name of some Indian.

The position taken by the counsel, that the Indian is not entitled to the benefit of the statute, without putting in issue the consideration, is equally untenable.

The statute was not designed to alter the rules of pleading, but to affect the quantity of proof which should be required in such cases. The statute of frauds requires that certain contracts shall be in writing, to be obligator ry, as when one binds himself to pay the debt of another ; but it has never been held that it was necessary to aver in the pleading, that such agreement was in writing, but that it is sufficient to prove it on the trial.

The contract of an Indian is not prima facie evidence of a consideration, but the consideration must be proved, and by two witnesses.

There is no error in the judgment of the court, and it must be affirmed,


source: Caselaw Access Project

author: GOLDTHWAITE, J.

license: Public Domain

text:
    SHIRLEY vs. FELLOWS, WADSWORTH & CO.
    l, In an action against tbe maker of a bill of exchange, an averment of notice of the demand of payment, and its refusal and protest, may be supported by evidence shewing a want of funds in the hands of the acceptors.

      2, But where a bill is drawn by defendant, for the accommodation of the acceptors, within the knowledge of the payees,— the want of funds in the hands of the acceptors, belonging to the drawer, will not excuse the omission of notice of non-payment and protest.
    Error to the Circuit court of Tuscaloosa,
    Assumpsit, before Chapman, J.
    This action is against Shirley, as the drawer of a bill of exchange, drawn on and accepted by daze & Haynes, in favor of Fellows, Read dp Co., and by them endorsed to the plaintiffs in the suit. The declaration is in the usual form, averring presentment for payment, refusal, protest, and notice to the defendant. The bill of exceptions taken during the trial, discloses that the plaintiff introduced in evidence the bill of exchange on which the action is founded, also a certificate of a notary public, showing the protest of the bill for non-payment, but omitting to show that the defendant was notified in any manner, of the protest. The plaintiff then offered evidence to show a want of funds in the hands of the acceptors, as an excuse for the omission of notice to the defendant, To the introduction of this, the defendant objected, because the declaration averred nptice, and did not aver the want of funds. The court overruled the objection, and admitted the evidence, which tended to show a want of funds of the drawer in the hands of the acceptors. The defendant then proved, that the bill sued on was executed to secure the payment for a stock of goods purchased by Glaze & Haynes, its acceptors, from the payees. The defendant requested the court to instruct the jury—
    1. That the want o.f funds of the drawer of a bill of exchange, was no sufficient excuse in law, for. an omission to give notice of demand and protest.-
    2. If the jury should believe the bill in suit was drawn by the defendant for-the accommodation of the acceptors, within the knowledge of the payees, that-in that event, the want of funds -'belonging to the drawer by the acceptors, would not e-xcuse the omission of noticé of nonpayment and protest. . These instructions were refused, and the court charged the jury, that proof of ’a want of funds, was sufficient to excuse notice of demand and protest in any case, whether the defendant was a mere accommodation, party to the- bill or not. To this charge, and refusal to charge, the defendant 'excepted, and now seeks to reverse the judgment of the Circuit court, on the questions of law arising out of the bill of exceptions.

      Crctbb, for plaintiff in error.

      Clark, contra.
   GOLDTHWAITE, J.

The declaration avers, that notice of the demand of payment of- the bill, and its refusal, Was given to the defendant, and the admission of evidence under this averment, to show a want of funds in the hands of the acceptors, presents a question, which has never been directly decided by this court.

On the first view, it would seem to be against general principles, to permit a party to prove a fact different from the one in issue, for the purpose of establishing his liability, and it must be admitted, that some of the English cases deny the correctness of such a course —(Harris vs. Richardson, 4 Carr & P. 522; Cory vs. Scott, 3 B. & A. 619.) The direct question has not, however, received a decision, owing, probably, to the common practice of adding the money counts. In the courts of the United States, the precise question does not appear to have arose in any other case than Frazier vs. Harris, (2 Litt. 185,) in which the court decided, that the evidence could not be admitted. This decision, however, is adverse to the current of the decisions on analagous questions; thus it has been decided, where the endorser of a note applied to a bank to get it discounted, and promised to' attend to the renewal of it, and take care of it; and directed that a notice to the maker should be sent to his care, and such notice was sent accordingly; it was held, this was a waiver of a regular demand and notice, .and could be given in evidence under the allegation of notice — (Taunton B’k vs. Richardson, 5 Pick. 436.) So, a promise to pay after protest, will be received as evidence of notice, and if made with a knowledge that no notice was given, the party cannot resist the demand for the want of notice— (Plate vs. McClure, 4 Rand. 164; Martin vs. Winslow, 2 Mason, 241; Thornton vs. Wynn, 12 Wheat. 183; Breed vs. Hillhouse, 7 Conn. R. 523; Barker vs. Parker, 6 Pick. 80.)

So, also, the fact that the maker had absconded} and could not be found} may be given in evidence under the allegation, that the note was presented, and payment refused — (Stewart vs. Eden, 2 Caine’s R. 121; Williams vs. Matthews, 3 Cowan, 252.) These cases are sufficient to show, that these allegations are at present considered as the necessary and proper form in which the liability of a drawer or endorser is to be averred, while more latitude ■is allowed in the evidence, which will be admitted, if it establishes a case of legal liability against the defendant,in the character in which he is pursued. The remedy on the money counts is much broader than any which has been opened by relaxing the ancient rules of evidence, when' applied to the averments of the declaration on bills or notes. But when the subject is examined, the admission of this evidence se'ems amply .sustainable on principle. If one draws a bill, without haying funds in the hands of the drawee, for a consideration passing to him, he is the real debtor in the transaction, and even after the acceptance of such a bill,- his condition as the primary debtor still continues, - although another party has intervened, on whom the law casts the character of being first liable to all the parties except the drawer. Under these circumstances, the law dispenses with notice, or assumes the drawer ás chargable with it, because it would be most iniquitous for him to claim a discharge from an actual debt, when he has either substituted no liability on another, or that other, if he paid the debt, would possess the clear and undisputed right to again recover the amount from his drawer.

We do not consider that the Circuit court erred in admitting the evidence.

On the main question before the jury, as to the right of the defendant to notice, a doubt cannot be entertained.

He was tile drawer, not of an accommodation bill, in the usual sense of the term, but of a bill drawn for the accommodation of the acceptors, and sfood in the relation of a surety, and was as much entitled to notice, as if he had furnished the acceptors of a bill drawn for his own use, with the funds to take it up. If the drawer, in this case, was not entitled to notice, it would be very difficult to conceive one in which it should be given. The cases Of Cory vs. Scott, (3 B. & A. 619,) and Norton vs. Pickering, (8 B. & C. 610,) are identical in principle with this.

There is error in the refusal to give the second instruction asked by the defendant, and in the charge, as given.

Let the judgment be reversed, and the case remanded.


author: ORMOND, J.

text:
    SKINNER vs. W. & R. GUNN.
    1. A power given to an agent to sell a slave, implies a power to warrant the soundness of the slave.
    2. But a warranty given by the agent in his own name, will not bind the principal, unless it be recognised and adopted by him,
    3. The mere addition oí the words “ attorney for L. S.” to his signature, by the obligor of a deed, cannot control the deed, and vary the obligations entered into.
    Error to the Circuit court of Tuscaloosa,
    Assumpsit on note, tried before Chapman, J,
    Plaintiff in error, by his agent, Isaac Hughes, sold to defendant a negro, for which the note sued on was given. Defendants plead the general issue, and failure of consideration.
    On the trial, plaintiff proved the note, and rested his case, Defendants then gave in evidence a power of attorney, from Skinner to the agent, and a bill of sale from the agent, warranting the soundness of the negro; and that the negro died shortly after the purchase. They also gave evidence conducing to prove that the negro was unsound at the time of sale.
    Plaintiff asked the court to charge the jury—
    1. That the power of attorney did not authorise the agent to bind plaintiff by a warranty of soundness.
    2. That the warranty was not that of plaintiff.
    This the court refused, and charged the jury, that the
    agent was authorised to warrant the soundness o£ the slaves, so as to bind his principal, and that the acceptance of the notes by the principal, was a recognition of the acts of the agent. There was no proof that plaintiff knew that the agent had given a bill of sale with warranty. Verdict and judgment for defendant.
    The action of the court was assigned as error.

      Clark, for plaintiff in error.

      Phelan, contra.
   ORMOND, J.

Two points are made in this case by the counsel for the plaintiff:

1. That the authority given by the plaintiff in error, to Isaac Hughes, did not authorise him to give a warranty of soundness of the slave, which he was empowered to sell.

2. That in fact no such warranty was made.

An authority to do an act, must include power to do every thing usual and necessary to its accomplishment. Thus, an agent employed to get a bill discounted, may endorse it in the name of his employer, and bind him by such endorsement. So, an agent employed to sell a horse, may warrant him to be sound, that being- usually done in such cases. But in either of the cases here put, the power of the agent might have been restrained by a prohibition to do the particular act.

The power in this case, is to sell and convey the negro in the name of the plaintiff, and the agent must, as an incident of that power, and in the absence of any prohibition, have the right to warrant the soundness of the slave, as that is a usual and ordinary stipulation in such contracts, and must therefore be implied to effectuate the object of the power — (Fenn vs. Harrison, 3 Term Rep. 757; same case, 4 Term Rep. 177; Hilyear vs. Hawke, 2 Esp. Rep. 72; Alexander vs. Gibson, 2 Campbell, 555.)

The cases cited by the plaintiff’s counsel, of Rossiter vs. Rossiter, (8 Wend. Rep. 494,) and Nixon vs. Hyserott, (5 Johns. Rep. 58,) do not militate against the position here taken. In the case in Wendell, the attempt was to bring ¿he act of an agent within the scope of his power, by virtue of a general clause in the letter of attorney, with which the act done had no necessary connection. The case in 5 Johnson, was where authority had been given to sell lands and execute a conveyance, and the court held that the attorney was not authorised to bind his principal by a covenant — such power not being necessarily implied, in an authority to sell and convey lands.

To ascertain whether any warranty of soundness was in fact made, we must examine the terms of the warranty, which are as follows:

“ Know all men by these presents, that I, Isaac Hughes, for and in consideration of the sum of one thousand dollars, have this day bargained, sold and delivered, unto William B. Gunn, a negro man named Ned,'supposed to be thirty years of age; which negro I warrant to be sound in body and mind — and do further warrant and defend the right and title of said negro to the said William B. Gunn, his heirs, &c. for ever, In witness whereof, I have hereunto set my hand and seal.
(Signed,) “ I. Hughes, [seal.]
“Att’y for Livingston Skinner.”

In has been decided by this court, in the case of Martin vs. Dortch, (1 Stewart, 479,) that such an execution of a power as this, will be sufficient; but it is too clear to admit of doubt, that this is not the warranty of the plaintiff in error. There is no room left for doubt or construction; the agent does not attempt to bind his principal, hut covenants in his own name, and the mere addition at the foot of the instrument, “att’y for Livingston Skinner,” cannot control the deed, and vary the obligation entered into by Hughes in his own name — (See Wilkes vs. Back, 2 East, 143, and cases there cited.

The court also charged, that the acceptance of the note taken on the sale of the slave, and bringing suit thereof, was a recognition of the acts of the agent. It is stated in the bill of exceptions, that there was no proof that the plaintiff, when he accepted the note, knew that his agent had given a bill of sale, with warranty.

An adoption of, or acquiescence in the acts of an agent, with knowledge of the facts, will certainly bind the principal. The objection, therefore, urged by the counsel for the plaintiff, that the principal did not know when he accepted the note of the warranty made by his agent, is not conclusive, as he might have known it af-terwards, and before suit was brought.

The charge of the court is, however, not strictly correct, as it assumes that receiving and suing on the note would be an adoption of the acts of the agent. Such recognition could only arise from a knowledge by the principal, of the acts of his agent, which knowledge such facts might conduce to prove, but the fact should have been left for the consideration of the jury.

The judgment must be reversed, and the cause remanded.


author: COLLIER, C. J.

text:
    JENNINGS vs. CUMMINGS & MASON.
    1. A demurrer is rightfully sustained to a plea, that plaintiff is not the owner of the note sued on, if such plea be not verified by the affidavit of defendant.
    2. Where there are several pleas, and the entry of judgment speaks of the “ issue joined,” the court will intend, that all the issues were submitted to the jury.
    Error to Tuscaloosa Circuit court.
    Assumpsit, tried by P. Martin, J..
    On the ninth of March, eighteen hundred and thirty-eight, the defendants in error brought an action by petition and summons, against the plaintiff, in the Circuit court of Tuscaloosa, on a promissory note, as follows:
    “Six months after date, I promise to pay Geo. Davis, or order, eighty-four dollars, payable and negotiable in the Bank of the State of Alabama, for value received.— Tuscaloosa, August the 25th, 1836.
    “ Wm. Jennings.”
    On which note is the following endorsement :
    “ Pay the within to Cummings & Mason. 26th Aug. 1836. G. Davis.”
    We find in the record an agreement and entry, made at the first trial term in the Circuit court, in these words:
    “It is consented, that a trial on the merits take place at the present term; and defendant pleads in short, by consent, that plaintiffs had no interest or ownership in the cause of action sued upon at the time of suit brought; 2. payment; 3. set-off. Porter, def’t’s att’y.”

      Whereupon, the plaintiffs demurred “ in short to the plea of no interest or ownership in the cause of action.” To the pleas of payment and set-off, there was “replications and issue joined. Crabb, for pbffs”
    To the-first plea, the demurrer was sustained. The issues on the second and third pleas were submitted to the jury, who returned a verdict in favor of the defendants in error, on which a judgment was rendered: from which the plaintiff prosecutes a writ of error to this court, and insists upon its reversal—
    1. Because the demurrer to the first plea should have been overruled;
    2. Because it does not appear on what issue the jury found their verdict.
    Porter, for plaintiff in error.
    Crabb, contra.
   COLLIER, C. J.

1. The precise question raised by the demurrer of the plaintiff in error, was brought to the view of the court in Beal & Bennett vs. Snedicor, (Jan. term, 1839.) In that case, the defendants in the Circuit court pleaded that the plaintiff (who sued as the endorsee of a promissory note,) “ was not the owner of the note sued on, or any part thereof, at the time of the commencement of the action, but the same was then, and still is the property of Messrs. Brewster, Solomon & Co.” the payees. To this plea, the plaintiffs demurred, and the demurrer being sustained by the Circuit court, the case came here for revision. This court was of opinion, that the act of eighteen hundred and nineteen, “to regulate the proceedings in the courts of law and equity in this State,” having enacted that it shall not he necessary for the plaintiff to prove an assignment of a bond, unless denied by a plea verified by oath, made the plea bad, for the want of such a verification. The plea in that case, being similar to the one in the case before us, we are satisfied that the court rightfully sustained the demurrer.

2. The entry of the judgment, after reciting the names of the jurors, proceeds as follows: “ who being elected, tried, and sworn the truth to speak, upon the issue joined, on their oaths do say they find,” &c. The verdict and judgment is in proper form, but it is objected, that the entry does not show that the issues were submitted to the jury. True, the singular number issue is employed, when the plural would more appropriately express the truth of the case, yet we will intend that both the plea of payment and set-off were before the jury, and that the omission correctly to recite the fact, was a mere clerical mistake, not affecting the validity of the judgment. The consequence is, that the same is affirmed.


text:
    ROBERTS et al. vs. THE STATE BANK.
    1. Where a notary certified in a protest, as follows: “ notices of protest given to the drawer and two first endorsers same day” —it was intended, that the notice was in writing, and given personally.
    2. The certificate of the President of the Bank, of the indebtedness of defendant, is conclusive as to the right of the bank to sue, and prima facie evidence of the genuineness of the signature.
    3. It is the duly of the court, and not the province of the jury, to pronounce on the legal validity of written evidence.
    4. Where the certificate of the President of the Bank contains no reference to the instrument sued on, other than its amount, it is insufficient to give the court jurisdiction, and too loose and indeterminate to be received.
    Error to the Circuit court of Tuscaloosa.
    Bank motion, tried by Chapman, J.
    This was a motion in the court below, by the Bank, against Roberts, as the drawer, and the other defendants, as first and second endorsers of a bill of exchange, for two thousand dollars, drawn by Roberts on • Turner & Lewis, and by them accepted. The bill was endorsed by the defendants, John F. Everett and Joseph Bates, jr.
    The defendants appeared, and pleaded the general issue, and a jury being empanneled, rendered a verdict in favor of the Bank for two thousand three hundred and twenty dollars — upon which judgment was rendered.
    Pending the trial, a bill of exceptions was taken, from which it appe'ars, that the plaintiffs below read to the court the certificate of the President of the Bank, to show that the bill was the property of the Bank, which is as follows:
    “Bank of the State of Alabama, Tuscaloosa, 18th. March, 1839. — I, Hardin Perkins, President of the Bank of the State of Alabama, do hereby certify, that James F. Roberts, Turner & Lewis, John F. Everett and J. Bates, jr. are indebted to the President and Directors of the Bank of the State of Alabama, the sum of two thousand dollars, with interest from the 24th March, 1837; and that this debt is really and bona fide the property of the said Bank. H. Pekkijns, President.”
    The plaintiff below also produced and read in evidence, a protest of a notary public, that the said bill of exchange was duly protested for non-payment; and also the certificate of the notary, that he had given notice to the defendants below of the dishonor of said bill, which certificate is in these words: “ notices of protest given to the drawer and two first endorsers same day.”
    The defendants below objected to the protest and certificate of the notary, as not being sufficient to prove a notice to the drawer and endorsers; and to the certificate of the President of the Bank, as insufficient to show that the bill sued on was the property of the Bank ; but the court decided that the protest and certificate were proper evidence for the jury, to consider whether notice was given, and whether the bill was bona fide the property of the bank.
    The counsel for the defendant also moved for the following charges to the jury :
    1. That the notice in a protest, must state the manner in which it was given, and the time when, whether personally or otherwise;
    2. That if the certificate is not under the seal of the corporation, then the official identity of the President must be proved, and that the signature is in his hand writing ;
    3. That the certificate of the President of the Bank, must contain within itself such a description as must identify the particular bill or note;
    4. That the introduction of said certificate, not containing within itself a reference to the subject matter of suit, does not become connected with it, merely by the fact of producing it in evidence.
    These charges, the court refused to give, and the defendants below excepted. They now assign for error, in this court—
    1. The facts stated in the record, do not shew a case in which judgment could be legally rendered;
    2. There was no sufficient notice bringing the parties before the court, as authorised by the statute;
    3. There is no showing, that the instrument sued on was the property of the Bank;
    4. The court below erred, as shewn in the bill of exceptions, and in refusing the charges prayed.

      Porter, for plaintiffs in error.
    Phelan, contra.
   ORMOND, J.

The charter of the Bank of the State of Alabama, authorises proof to be made of notice of the dishonor of a bill of exchange or promissory note, by the certificate of the notary.

The provision is in these words: “The protest of a notary public, of an inland bill of exchange, — or other protestable security, the property of said Bank, — setting forth a demand, refusal, non-acceptance or non-payment, and that notice thereof was given either personally or otherwise, to the parties entitled thereto, shall be evidence of such facts: Provided, that nothing herein contained, shall be construed to affect the reasonableness or sufficiency of such demand, refusal, non-acceptance or non-payment.”

The certificate made by the notary in the protest, is as follows: “notices of protest given to the drawer and two first endorsers same day.” The certificate of the notary, that notice of the dishonor of the instrument has been given, is prima facie evidence of the facts it recites, and should set them forth with reasonable certainty. There can be no controversy as to the time when the notice was given: it was on the same day that the protest was made, but it is insisted, that it does not appear whether the notice was verbal or in writing; whether the notice was given personally, or left at the house or place of business of the plaintiffs in error. We think, however, that the criticism of the counsel for the bank, on the word “notices,” is correct: we must intend that the notice was in writing, and given personally ; the language will not reasonably admit of any other interpretation. Had he stated that notice was given to the parties the same day, there would be great force in the objection, as it would then be uncertain whether the notice was written or verbal, and the statute seems to contemplate that the notary should state in what manner the notice was given, and if this were not done — but the result stated by the notary instead of the/acis — it would be impossible, in most cases, for the party to contradict it, if untrue. The employment, by the notary, of the substantive notices, shows the character of the notice: we must intend that ■it was in writing.

In the case of Charles Cullum vs. Denys Casey & Co., at the last term, we held that a certificate of a notary, that a bill was presented for payment “at the place of business” of the drawees, was sufficient, without setting forth where the place of business was.

The first and second.assignments of error, question the sufficiency of the notice, and that the facts stated on the record, do not authorise the judgment. In the case of James Curry vs. The Bank of Mobile, decided at the last term, after a review of all the cases on the subject, we held that, whether the judgment be by default or otherwise, in cases of this summary character, the record must show affirmatively, every fact necessary to give the court jurisdiction, but that when an issue was made up, “the 'verdict would ascertain the defendant’s liability, as in other cases, in suits brought in the ordinary mode; and that it was unnecessary to encumber the record either with the proof or fact of notice, or of those facts which constitute the liability for the debt. Should either party desire to reserve the legal sufficiency of the facts, it can he done by bill of exceptions, or by demurrer to the evidence.” This decision was made on great consideration, and we are entirely satisfied with it. As this case was determined below, on an issue in fact between the parties, those assignments of error cannot be sustained: the case must be determined on the points reserved in the bill of exceptions.

But is necessary, in all cases, that the court have jurisdiction ; and this fact, the plaintiff must in all cases of this summary character, show affirmatively on the record. The jurisdiction can only be given by the certificate of the President of the Bank, that the debt is really bona fide the property of the Bank, and this leads us to the examination of the certificate of the President of the Bank, which is found in the record.

It is insisted, that unless the seal of the corporation be annexed to the President’s certificate, that proof must be made of the genuineness of the signature, and that the individual signing it, is the President of the Bank.

The Bank of the State of Alabama is the property of the public; — its President and Directors are appointed by the Legislature: we must therefore judicially take notice who they are, and therefore must judicially know, that Hardin Perkins was at the date of this certificate, President of the Bank.

It is, however, admitted, that it is a much more difficult question, whether the court must be presumed to know his signature; we think, however, that such was the intention of the Legislature. The power to make this certificate, which confers jurisdiction in these summary cases on the court, is given to the President of the Bank — not to the corporation — and therefore, it is not necessary that the certificate should be verified by the seal of the corporation; as therefore this duty is thus cast on him, as a public officer, and as the prosecution of suits on behalf of the Bank, is entrusted to the attorney of the Bank, who is appointed in pursuance of law, and therefore at least quasi, a public officer, — we think it reasonable, that the Legislature intended that the certificate of the President of the Bank, thus offered, should be conclusive as to the right of the Bank to sue, and at least prima facie evidence of the genuineness of the signature.

But the certificate of the President must, in itself, or by-reference to something else thereby adopted as part of it, disclose with reasonable certainty, that the debt proposed to be recovered in this summary mode, is really and bona fide the property of the Bank. This has not been done in the certificate produced in this case; it contains no reference to the debt sued on, further than by its amount, and would apply to any debt of the same amount due by the same parties. This is certainly too loose and indeterminate, especially in this summary proceeding, which the defendant cannot question the right of the Bank to institute.

The counsel for the Bank has relied on the case of Walker vs. The Bank of Alabama, (4 Stew. & Por. 215,) as an authority to shew that an allegation in the notice, that the instrument sued on was the property of the Bank, would give the court jurisdiction. The language of the court is, “ the first assignment of error in this case is a general one, and the third is not sustained by the record — as the allegation in the notice, that the plaintiffs below were the ‘holders and owners’ of the bill of exchange sued on, is equivalent to alleging that the bill was the property of the Bank.”

This case is not correctly reported; the first ássignment of error, to which the court refer as too general to be noticed, is omitted in the printed report, as we have ascertained by examining' the original record j and what is called the first in the report, is in the record the third assignment.

There is in addition to this, a verbal inaccuracy in the opinion, as is manifest from other parts of it, in this, that it appears to derive the jurisdiction of the court, from an allegation in the notice. Such a decision would be at war with all the previous and succeeding decisions on the subject; besides, the judgment of the court, in that case, showed that the certificate of the President was produced, averring that the debt sued on was really and bona fide the property of the Bank. The court was -therefore correct, in saying that the third assignment of error (which, in the printed report, is put down as the first,) “ is not sustained by the record,” although a wrong reason appears to be given for it. This inaccuracy doubtless arose from the circumstance, that the controversy in the case was upon the fact of the acceptance of the bill by Walker, and for want of an averment of proof of that fact, the case was reversed.

In this case, the facts are sent up by bill of exceptions, arid we have the certificate of the President of the Bank in hcec verba. It is, for the reasons given, insufficient to give the court jurisdiction, and for that cause, the judgment of the court below must be reversed, and the cause remanded for further proceedings.

The court also erred, in leaving to the jury the sufficiency of the certificate of the President of the Bank, and the certificate of the notary, that notice had been given to the defendants below. It was both the province and the duty of the court, to have pronounced the legal validity of the evidence, and not to have left it to the jury.


text:
    ALFORD vs. JOHNSON.
    Í. Where plaintiff’s agent in attachment, declares on oath that defendant is indebted to plaintiff in a sum certain by note, and then sets out the note in hcec verba — it is sufficient.
    3.The authority of the agent to execute a bond, must be questioned by plea to that effect, or it will, be presumed by the court.
    3. Plaintiff in attachment must be required to perfect a defective bond, and decline doing so, before proceedings will be quashed for such defect.
    4. 'The act which requires process issued from the clerk’s office of any court in this State, to be directed, “to any sheriff of the State of Alabama,” &c., does not embrace attachments issued by justices of the peace.
    5. Where an affidavit describes the plaintiff by the Christian name of “Abraham,” and in the bond and attachment he is called “Abram,” the bond and attachment may be amended, to conform to the affidavit.
    Error to Tuscaloosa Circuit court.
    Attachment, tried by P. Martin, J.
    The plaintiff in error, by his agent, N. B. Garner, on the eleventh December, eighteen hundred and thirty-seven, caused an attachment to be issued against the defendant, by a justice of the peace of Tuscaloosa, returnable into the Circuit court of that county. At the term of that court, holden in March, eighteen hundred and thirty-nine, the defendant* by his attorney, moved the court to quash the attachment, for the insufficiency of the affidavit, bond and writ of attachment — which motion was granted, and judgment rendered against the plaintiff for costs.
    This judgment is here assigned for error;

      Clark, for plaintiff in error;

      Phelan, contra.-
   COLLIER, C. J.

The record does not discover the specific grounds of the motion in the Circuit court; but the defendant’s counsel, in his argument, has insisted that the judgment is legal—

1. Because the affidavit does not conform to the statute ;

2. Because the bond is hot well executed;

3. Because its condition is defective;

4. Because the writ of attachment is not properly directed; and

Lastly. Because there is a variance between the affidavit, bond and process.

1. It is objected to the affidavit, that the plaintiff does not swear that the defendant is indebted to him in a sum certain. This objection is not (in our opinion) well taken. The plaintiff’s agent declares on oath, that the defendant “ is justly indebted to the said Abraham Alford, in the sum of thi ee thousand dollars, by a sealed note, of the tenor following” — and then sets it out in heec verba. This mode of stating the defendant’s indebtedness is equivalent to a direct affirmation) that he owed the plaintiff the sum expressed in the face of the specialty. The affidavit, in all other respects, conforms to the act of eighteen hundred and thirty-three, (Aik. Dig. s. 6, p. 38,) and has not been drawn in question.

2. Without pretending to determine whether, where a party sues out an attachment by an agent) &c. it is necessary that the bond should be executed by the agent, &c. as the principal; we think if this be necessary, that Garner may be so regarded. The bond is thus executed:

“Abraham Alford, [seal.]
By his agent, N B. Garner. “N. B. Garner, [seal.]
“J. Cantley, [seal.]”

Neither the bond or condition style either of the obli-gors as a principal or a surety; so that we might, if it were required in order to sustain the attachment, consider Garner as the principal, and the execution by Alford, through his agency, as surplusage. So, if the execution of the bond by Garner for Alford was unauthor-ised, it would impose no liability upon the latter, but the former would be personally responsible for having exceeded his authority.

Upon a motion to quash, we are to look alone to the face of the proceedings objected to, and if these be regular, the motion will be denied. Thus: if the bond should have been executed by the plaintiff, we will presume that Garner’s authority was ample for that purpose — if it was not, the plaintiff might, by plea, have questioned the legality of his agency.

3. The sufficiency of the condition of the bond, must be determined by a reference to the attachment law of eighteen hundred and thirty-three, and not that of the twenty-third December, eighteen hundred and thirty-seven, as was supposed in argument; for the attachment was issued on the eleventh December, twelve days previous to the passage of the latter statute.

The 3d section of the act of eighteen hundred and thirty-three, requires that the bond shall be “ conditioned that the plaintiff shall prosecute his or her attachment to effect, and pay the defendant all such damages as he or she may sustain, by the wrongful or vexatious suing out of such attachment.” The 6th section prescribes the form of the affidavit, bond, and attachment, and the condition there found, is materially variant from the 3d section. Such part of it as concerns us at present, is in these words: "Now if the said-shall prosecute his suit with effect, or in case he fail therein, shall well and truly pay, and satisfy to the said-, all such costs and damages as shall be recovered and awarded against the said-, his heirs, executors or administrators, in any suit or suits, which may be hereafter brought for wrongfully suing out the said attachment, then the above obligation to be void; otherwise, to remain in full force and effect.” There is a clear discrepancy between the bond required by the 3d section, and that, the form of which is given to the 6th section ¡ — under the former, the surety would be liable for damages consequent upon the vexatious or wrongful suing out of the attachment, though the plaintiff might recover a judgment — while under the latter, he could be charged only, upon the failure of fhe plaintiff to prosecute his suit to effect'. This State of things was discovered by the Legislature, and on the tenth January, eighteen hundred and thirty-five, an act was passed, which enacted “that from and after the passage of this act, no person shall sue out any original attachment, without giving security or securities to the bond required to be entered into, by the third section of the above entitled act, (act of 1833,) conditioned as provided for by said act, which security or securities shall be approved of by the judge or justice granting such attachment, and be subject to all the liabilities of the principal in said bond.” Here, we see the Legislature did not pretend to interfere with the form of the bond, as before prescribed, but expressly re-adopt the condition, the form of which is furnished by the act of eighteen hundred and thirty-three, and inappropriate as it may seem, declare the legal effect of the bond, to be the imposition of a liability upon the surety beyond, and in some instances, in opposition to its terms: thus continued the law until the act of eighteen hundred and thirty-seven, already cited. The condition of the bond is subtantially, jf not literally copied from the 6th section of the act of eighteen hundred and thirty-three, and consequently, is free from legal exception; but even conceding the bond to have been defective, the Circuit court was not warranted in quashing the proceedings, unless the plaintiff had declined, upon the requisition of the court, to perfect it by the substitution of a new bond — (Lowry vs. Stowe, 7 Porter’s R. 486.)

4. The attachment is directed to the sheriff, as required by the act of eighteen hundred and thirty-three; and the act of eighteen hundred and thirty-six, “ to amend the laws regulating judicial proceedings,” (pamphlet acts of 1836, p. 25,) which directs that “ all original, mesne and final process, issued from the clerk’s office of any court, in this State, shall be directed “to any sheriff of the State of Alabama,” &c. — applies in terms to the process of courts, of which clerks are necessary officers, and consequently, does not embrace attachments issued by justices, of the peace.

5. The defendant insists, that there is such a variance between the affidavit, bond and attachment, as to have authorised the judgment of the Circuit court. The affidavit describes the plaintiff by the Christian name of Abraham — in the bond he is called both Abraham and Abram — while the attachment is sued out in the name of Abram. We think if it were necessary, that the bond and attachment might have been amended so as to conform to the affidavit, and that the variance is not such as to sustain the judgment.

This view of the case brings us to the conclusion, that the judgment of the Circuit court is erroneous, and it is therefore reversed, and the case remanded.


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    THE STATE vs. SAUNDERS.
    1. An indictment for trading with a slave, which states that goods were bought from or sold to the slave, “ without the consent of the owner or overseer of the slave” — is sufficient.
    Error to Pickens Circuit court.
    Indictment for trading with a slave, tried before Chapman, J.
    This was an indictment preferred against the defendant, in the Circuit court of Pickens county, for trading with a slave.
    The first count of the indictment charges that the defendant : “did buy of and from Dick, a negro man slave, the property of one Walter W. Gilkey, — two hundred pounds of cotton, for five dollars, without the consent of the master, owner or overseer of said slave, contrary,” &c.
    The second count charges the defendant with receiving the cotton from the slave, without the leave or consent of the master, owner or overseer, &c.
    The defendant demurred to both counts of the indictment. The court sustained the demurrer to the second count, and overruled the demurrer to the first. There was a verdict and judgment against the defendant, but the judgment of the court overruling the demurrer to the first count, was reserved for the revision of this court, as a novel and difficult question, and is now assigned for error.
    Ellis, for plaintiff in error.

      Attorney General, contra.
   ORMOND, J.

The offence described in this indictment, is created by statute : so much of the act as is pertinent to the question, is in these words: “ that no person whatsoever, shall buy, sell, or receive from any slave or slaves, any commodity, of any kind or description whatsoever, without the leave or consent of the master, owner or overseer of such slave or slaves in writing, expressing the articles permitted to be bought, sold or bartered; or unless the master, owner or overseer of any such slave or slaves, shall personally authorise the' same; and,” &Cj —(Aik. Dig. 396.)

There can be no doubt, that where an offence is created by statute, the statute contains a definition of the offence; and an indictment for such offence, must state it with certainty and precision, either in the words of the statute, (which is the safest and most proper mode,) or in equivalent language. If there be an exception in the statute creating the offence, the indictment must show negatively, that the defendant does not come within the exception.

The offence created by this statute, is buying from, or selling to slaves, without the consent of the owner or overseer of the slave, given either in writing or personally ,- and an indictment, to be good, under the statute, must charge the offence in both aspects — affirmatively and negatively — that the goods were bought from, or sold to the slave, and that neither the owner or overseer of the slave consented to the traffic.

It is contended by the counsel for the defendant, that ■ the consent which, under the statute,- is to legalise dealing with.slaves, is not negatived in the indictment, inas-touch as it is not stated that the consent which the statute requires, was not given either in writing or personally', by the owner, master or overseer.

But the indictment does deny that either the master, owner or overseer consented to the purchase by the defendant, of the cotton from the slave, and this charge the defendant could negative, and entitle himself to an ac-qxiittal, by proving a consent to deal with the slave, by the Written permission of the owner or overseer of the islaVé, or by their consent given personally. It could, therefore, have subserved no purpose to allege in the indictment, that consent was not given in either of the toodes pointed out in the statute, as the general allegation, that no consent was given, must include both modes Of consenting.

It is supposed, by way of illustration, that if the charge in the indictment be so general, that the defendant might excuse himself by proving a consent not contemplated by the statute, and yet satisfy the averment in the indictment, that the indictment must be bad: such a case, it is supposed, would be presented, if the consent Were given orally, by an agent of the master or owner,— which, it is said, was the predicament of-this case in the Court below, and that the evidence was rejected by the court. We are of opinion, that the evidence should have been received, and would have constituted a defence.

The act requires the consent of the master, owner or overseer, to be given either in writing or personally, but it was not intended by the Legislature to change the rules of evidence, which at common law, are the same in criminal as in civil cases. What a man does by his agent, he does by himself; and had this question been reserved, there can be no doubt that the judgment must have been reversed. But it does not appear from the record, that any such evidence was offered — or if offered* and rejected, that the point was reserved for the consideration of this court.

The single point presented by the record, is the sufficiency of the first count of the indictment, and there being no error in the judgment of the court on the demurrer to that count, it must therefore be affirmed?


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    CARMICHAEL vs. BROOKS.
    1. In an action between the endorsee of a draft or order, dishonored for non-acceptance, and the maker — a written admission of the payee, discharging the liability of the maker, is inadmissible in evidence.
    2. A party, asking the action of the court, must be prepared to sustain the whole demand in the precise terms in which it is made, and the refusal to act will , not be error, although a portion of the request might have been properly granted.
    Error to Madison County court.
    Assumpsit by endorsee against maker.
    Brooks, as the assignee of Spencer, instituted suit against Carmichael, in the County of Madison, on an order in writing, of the effect following:
    “ The sheriff of Limestone county, will pay E. H. Spencer the amount of the judgment of mine against J. S. Hendrick, which is two hundred and seventy-nine dollars, which amount I am due said Spencer; and this order shall be your receipt. This 16th January, 1835. D. Carmichael.”
    Endorsed—
    “ The sheriff of Limestone county will pay over, when, collected, the amount of the within order to Mr. John Brooks. November 19th, 1835. E. H. Spencer.”
    “ Not accepted, for want of funds in my hands. 26 January, 1835. Thomas G. Tyus,
    Sh’ff of Limestone county.”
    The declaration is drawn in the usual form, and avers a presentment for acceptance to the drawee, his refusar to accept, and notice to the drawer. It also avers, that tlie drawer had no funds in the hands of the drawee. In the progress-of the trial, the plaintiff read the order and its endorsements in evidence to the jury, and also produced and read in evidence, a paper which purported to he a protest of an order, similar to the one described in all respects, except the amount and direction: the former of which is stated as “two hundred and seventyyfoe dollars,” and the latter “ directed to Thomas G. Tyus, sheriff of Limestone county.” This protest was made by a justice of the peace, in the absence of a notary public.— What other evidence, if any, was offered by the plaintiff, is not disclosed by the bill of exceptions.
    The defendant proved by a witness, the signature of Spencer, (the drawer of the order,) to an instrument in writing, in these words:
    “ This may certify, that the judgment that D. Carmichael sold me on J. S. Hendrick, is to have no recourse on said Carmichael, further than said Carmichael is to favor the collection of said debt. This 16 January, 1835. ' E. H. Spekcer.”
    And then offered to read it in evidence to the jury, but the court excluded it.
    The defendant then moved the court to exclude the evidence previously admitted on the part of the plaintiff, of the order and protest — and this being refused, tendered his bill of exceptions on both points. The refusal to permit the instrument signed by Spencer to be read in evidence, and the refusal to exclude the evidence of the order and protest, are assigned as matters of error.

      McClimg, for plaintiff in error.
    Hopkins, contra.
   GOLDTHWAITE, J.

A very .brief examination will serve to show that the instrument signed by Spencer, and offered in evidence, was rightfully excluded. It purports to be the written admission of Spencer, made on the same day that the order by Carmichael to the sheriff was executed, of a condition in the contract of endorsement, which, if actually made, would discharge Carmichael from all liability to Brooks — he coming to the possession of the order after its dishonor, and being consequently put on enquiry into all the equities existing between the drawer and payee.

When the signature of Spencer was established to this instrument, it evidenced nothing more than his admission that such was the contract between him and Carmichael, but did not prove that such a contract was in fact made.

Spencer would have been a competent witness for Carmichael, and if the contract was.in truth such as is described by the writing, could have established the fact, but the instrument itself might be made at any time previous to the trial; the fact therein stated might never have existed, and if competent evidence, the plaintiff’s action might be defeated by the combination of Spencer with the defendant, and neither of them be guilty of perjury or forgery. The law is not so defective in guarding the rights of parties, as to permit consequences like these. It is urged that the instrument was, at least, prima facie evidence of having been made at the time it bears date, and that the plaintiff ought to be put on the proof, that it was not then made; but this proof would be entirely out of his power, unless witnesses were present when the contract of endorsement was entered into, who might be able to swear that no such writing was then given, and no such condition introduced in the contract. Spencer, if called as a witness to establish a liability in Carmichael to Brooks, would clearly be an incompetent witness, and would not be permitted to disprove any matter of defence. There was no error in rejecting the writing.

The other point is equally clear against the plaintiff in error. If the application to the County court, had been to exclude the protest on account of the variance, or if the effect of the variance in the description of the order protested and the one sued on, had been the subject of a specific charge, we should feel bound to examine the question with the attention it would then deserve, but the request was to exclude the order as well as the protest. There is no valid objection urged against the admission of the order, and as the County Court was bound to respond only, to the entire request of the defendant, there was no error in refusing to exclude the entire evidence then before the jury, as a part of it was certainly obnoxious to no objection.

The rule is well settled, that a party asking the action of the court on any subject,' must be prepared to sustain the action demanded, in the precise terms in which the request is made, and the refusal of a court to act in the manner requested will not be error, although a portion of the request might have been properly granted, and should have been, if asked independent of the other part —(Elliot et al. vs. Purrol, 1 Peters, 328; Moore vs. Leftwich, 1 Stewart & Porter, 254.)

Let the judgment be affirmed.


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    STRADER vs. HOUGHTON.
    X. Where the surety to a bond gave a verbal notice to the payee, after maturity, to sue the principal, who declined doing so, until the principal became insolvent — it was held, that the surety was discharged from his liability.
    Error to Benton Circuit court.
    Covenant — tried before Shortridge, J.
    Marlin, for plaintiff in error.
   COLLIER, C. J.

The only error insisted on in the proceeding in the Circuit court, arises out of a bill of exceptions, sealed by the presiding judge at the trial. The plaintiff in error being sued on a specialty for the payment of money, which he had executed with one King Jenkins as his surety, proved that he had on several occasions, given to the defendant a verbal notice, after the maturity of the paper, to sue his principal, or he would consider himself discharged from his suretyship — that the principal was solvent at the time of the notices, and that the money might have been collected of him, had diligence been used- — that the defendant had taken no measures for several years, to coerce a collection, and that the'principal was now insolvent.

The Circuit judge charged the jury, that to have made the notice by the plaintiff available in his defence, it was necessary that it should have been in writing — and relied upon the case of Gayle vs. Randle, (4 Porter’s R. 236,) as having changed the earlier decisions on the point. The learned judge was clearly mistaken, in the view which he took of that case: when looked into, instead of being found introductive of a new rule, it will be seen to be confirmatory of Bruce vs. Edwards, (1 Stewart’s Rep. 11.)

The consequence is, that the judgment of the Circuit court is erroneous, and is therefore reversed, and the case remanded.


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    PHARES & HERNDON vs. STEWART.
    1. A wrongdoer is responsible for all the consequences which flow immediately irom his wrongful or negligent acts; and this rule is the same in civil as in criminal cases, and the responsibility is not relieved by the fact, that the consequences of the injurious act could have been prevented By“tKe care or skill of the sufferer.
    Error to the Circuit court of Mobile.
    Case tried before Harris, J.
    This action was commenced in the Circuit court of Greene county, and subsequently removed to that of Mobile, in which it was determined by a verdict and judgment in favor of Stewart, the plaintiff, who declared in case against Phares & Herndon, as the owners of the steam-boat Choctaw, for an injury arising from the negligent and unskilful conduct of their servants, while in charge of the said steam-boat, which came in collision with a flat-boat, laden with corn, and caused the destruction of flat and lading, which were the property of the plaintiff.
    The only questions made in this court, arise from exceptions taken at the trial, to the charge of the Circuit court, and to its refusal to give certain instructions to the jury, asked for by the defendants.
    The evidence disclosed by the bill of exceptions, so far as is necessary to an understanding of the questions presented before this court, is as follows: “ On the part of the plaintiff, it was shewn, that on Monday, the 29th May, 1834, about one o’clock A. M., the steam-boat Choctaw, then ascending the Tombeckbee river, came in collision with the plaintiff’s flat-boat. The master of the flat, with one of the crew, heard the noise of a steamboat, apparently below them, on the river, a mile or a mile and a half distant; the remainder of the crew were immediately apprised of the approach of the steam-boat, the fire on the flat stirred up, and pine wood roasted near the fire, so as to enable the crew to produce a blaze quickly, as soon as the steam-boat should be seen. Soon after this, the steam-boat turned a point, about a quarter of a mile distant from the flat, and in full view; the master of the flat instantly lighted his torch of pine, and placing himself in the front part of his flat, held it raised: at this time, both steam-boat and flat were in their proper places, according to the rules recognized in the navigation of the river. Wl.ea the boats had approached within one hundred or one hundred and fifty yards of each other, the master of ti e flat, feeling satisfied that his light had been plainly seen by those on board the steam-boat, laid it down, but it continued to blaze and give light; he then examined the position of the steamboat particularly, and from the course it was steering, he judged that the boats would pats each other at a distance of twenty or thirty yards; soon after this, he observed the steam-boat make a sheer toward the flat, and he and some of his crew, shouted with loud cries, to warn the crew of the steam-boat to alter her course, or stop it, but it continued to advance in the direction of the flat, which it struck in the bow, with a barge which the steam-boat then had at her side ; after the collision, the flat swung round, in which position it received another shock from the bow of the steam-boat; the flat then commenced filling with water, and so rapidly, that the master, with all his crew, immediately abandoned it, and made their escape to the steam-boat; the flat was stove and broken by the shocks so received — she entirely filled, and sunk in a few moments; the river was sufficiently wide for the steam-boat to have avoided the collision, by the exercise of a reasonable degree of care, and the injury would not have happened, if the steam-boat had continued to be steered the same course it was steering, when first observed approaching the flat; the flat could not have avoided the collision by any means within the power of its crew, and the injury was justly attributable to the carelessness and want of skill of those in charge of the steam-boat.
    On behalf of the defendants, it was proved that the steam-boat was on the proper side of the river, and sheered across at the proper place. The moon was rising in the tops of the trees, and was behind the steam-boat, so as to throw their shadows ahead; no light was seen on the flat, by the pilot of the steam-boat, before the boats came in contact, nor was any sign of fire seen on the same by any one, after the accident occurred: the pilot did not see the flat, until the steam-boat was within the distance of fifty or one hundred yards of it, at which time the bell of the steam-boat was rung, and its wheels backed; the pilot steered the steam-boat, so as to pass the flat, if practicable, without injury, perceiving that the headway of the steam-boat could not be stopped before it would reach the flat, but he could not change its course, so as to pass the flat, with the barge which the steam-boat had in tow; the flat was struck by the barge; immediately when the collision took place, the master and crew of the flat jumped on the steam-boat, and did not return, to ascertain what injury had been done; some of the crew said they were glad to have an opportunity to quit the flat; no request was made of the captain of the steam-boat, or any other person, to aid in saving the flat or its lading; the flat did not sink entirely, but one edge or side of it remained above the water, and it was seen to float down the river as far as it could be seen — a quarter of a mile or more; the crew of the flat could have saved it and the lading uninjured, if they had made the necessary exertions to do so; the flat floated down the river, and drifted ashore at Johnson’s landing, at the distance of four miles from the place of the accident, where, on the morning of the second day after the collision, it was seen by several witnesses, with one side or edge under water, and the other side entirely above the water; at this time, the flat could have been repaired, and the whole lading saved; the accident happened in a thickly settled neighborhood, where there were many negroes, and all necessary assistance could have been obtained, if applied for: two of the witnesses took from the flat some seventy or eighty barrels of corn, which was uninjured, and made good meal — a quantity of corn, which was wet, was taken out, and saved without injury : the master of the flat and its crew, returned up the country on the steam-boat, and never made an effort to save the flat or its lading, requested no assistance, nor did any of them see it afterwards. Witnesses, professing to understand the duties which devolve on masters of flats, stated that there was no necessity for the crew of the flat-boat to leave it, and that their duty, and the duty of the master, was not to abandon it, and that they could have saved it, with the lading, if they had made any effort to do so. When the accident occurred, the flat swung around the bow of the steam-boat, and remained in that situation until the crew of the steam-boat had fastened the barge, which was separated by the collision, again to the steam-boat; this took from from fifteen to twenty-five minutes, during which time, no effort was made by the master of the flat, or any of his crew, to examine its condition, or save it and its lading.
    The captain of the steam-boat stated that he was asleep when the accident occurred, and was waked by the pilot, who told him that the steam-boat had sunk the flat; that he (the pilot) was not at the wheel, but was absent on a necessary call at the time, and that another was at the wheel, when he heard the alarm bell rung, and hurried to the wheel, and endeavored to prevent the collision, but was unable to do so; he also stated, that when he got up, the flat was paitially sunk, though it continued to float down the river, and was visible for some distance; that the crew of the flat were all off from it, on the steam-boat, with the exception of one, who was then getting out.
    The defendants requested the court to charge the jury,
    1. That if the crew of the flat, by reasonable exertions, could have saved it and its lading, the plaintiff could not recover. This charge was given with this qualification, viz. if the jury should believe, that the collision was owing to the neglect of those who had the management of the steam-boat, and was such as to induce a reasonable man, and one acquainted with the navigation of boats, to leave the flat for fear of loss of life, then the leaving of the flat was justifiable, — and if it was abandoned under such circumstances, the plaintiff might recover, although the boat did float down, and the corn might be (have been) secured by attention, and the aid of hands.
    2. That even if the alarm was such as to induce the master and crew to leave the flat at the moment, yet when the alarm subsided, if they saw the flat was not sunk, but was floating above the water, it was their duty to have returned, and to have endeavored to save it and its lading. «, This charge the court refused to give, on the ground that it did not arise out of the proof.
    The charge, as given, as well as the refusal to charge as requested, are assigned as error.

      Gayle, for plaintiffs in error.

      Stewart, contra.
   GOLDTHWAITE, J.

The evidence disclosed by the bill of exceptions, is very contradictory, and it was the peculiar province of the jury, to determine what degree of credit ought to be given to the several witnesses. Before a verdict could properly have been rendered for the plaintiffs, the jury should have been satisfied that the collision between the boats, was caused by the negligence or improper conduct of those in charge of the steam-boat: either of these facts having been established, it was only necessary to ascertain the amount of injury sustained by the plaintiff, and flowing immediately from the wrongful or negligent act of the defendants’ servants: that the jury were thus satisfied, must be presumed .from the verdict, and as no exception was taken to the opinion of the Circuit court, except in the particulars shown by the bill of exception, we must conclude, that the general rule of law, governing cases of this description, was correctly expounded to the jury.

In general, a party is responsible for all the consequences which flow immediately from his wrongful or negligent acts: such is the well established rule of the criminal law, which holds an individual responsible for a death caused by a wound, which might have been, healed, if skilfully attended to in due season, though the responsibility is not incurred, if the death is caused by unskilful treatment, and is not the consequence of the wound itself.

In relation to civil suits, it is believed there is no exception to the general rule, as stated, though cases may be imagined, in which a modification of the principle might be necessary to effect the purposes of justice; as, if one, after receiving an injury of a slight and unimportant nature, was wilfully to neglect the necessary means to stop the progress of the injury, he might be, in strict justice, debarred from a recovery of all but the damages arising from the injury, at the point .when his wilful neglect had intervened.

The counsel for the plaintiffs in error has supposed, that if the consequences of the injurious act could be prevented by the care or skill of the sufferer, that the wrongdoer is not responsible except for the direct and present injury. No authority has been cited to prove the existence of this qualification or exception of the general rule, and it is believed that fione can be found, as it does not seem consonant to reason, that any one shall be discharged from the liability to answer for the immediate consequences of his own acts, by the omission or want of skill in another.

If, in the case before us, the collision of the boats Was caused by the negligence or mismanagement of those in charge of the steam-boat, and the flat and its cargo could have been saved, after the collision, by the exercise of care and skill, it was incumbent on those who caused the injury, to have taken the necessary measures for the preservation of the property, if they sought to relieve themselves or their employers from liability; and although, as between the plaintiff in the suit and his servants, — the master and the crew of the flat, — it might have been the duty of the latter, to take all the necessary care to prevent an extension of injury to their employer, after the collision had happened, yet if they neglected this duty, it did not discharge the defendants to this suit from a liability to answer for all the damages which directly resulted from the negligence or mismanagement of their servants, in charge of the steam-boat.

If we examine the charge of the Circuit court by these principles, it will be found to be free from error. The defendants to the suit requested the court to instruct the' jury, “ that if the crew of the flat, by reasonable exertions, could have saved it and its lading, the plaintiff could not recover,” These terms do not, in themselves, sufficiently indicate whether the reasonable exertions of the crew of the flat were to have been put forth before or after the collision, and the evidence was so contradictory, as to warrant the one or the other impression, as the jury might give credit to the one or the other class of witnesses; hence the necessity for the explanation or qualification given by the Circuit court. “If (said the Circuit court,) the crew of the flat, by the exercise of reasonable exertions, couid have saved it and'its lading, the plaintiff ought not to recover; but if the collision was owing to the neglect of those who had the management of the steam boat, and it was such as to induce a reasonable man, and one acquainted with the navigation of boats, to leave the flat for fear of loss of life, then the leaving of the flat was justifiable; and if it was abandoned under such circumstances, the plaintiff might recover, although the boat did float down, and the corn might have been saved by attention, and the aid of hands.” If the charge was asked under the impression, or with the view to instruct the jury, that in point of law, the neglect of the crew, to aid in saving the flat or the cargo, after the collision had taken place through the negligence or mismanagement of those in charge of the steam-boat, discharged the defendants from liability, it should have been refused, as the omission of the crew of the flat to perform their duty to its owners, could not relieve the defendants from the direct consequences of the want of care or skill of their servants.

In relation to the charge refused to be given, it may be observed, that no evidence is stated in the bill of exceptions, which will warrant the inference that the alarm, caused by the collision of the boats, had, in point of fact,subsided, or that the flat was floating down the river above the water, even if at the time, its crew had the means to re-gain it; therefore, the Circuit court was right in refusing the charge, for the reason which it states —that it was unwarranted by the proof: but the charge requested, ivas liable to another objection, equally decisive — it leads to no conclusion, in favor of, or against either party. As between the master and crew of the flat, it might have been the duty of the former, to have made use of reasonable exertions to save it and the lading, in as uninjured a condition as practicable, but the neglect of this duty did not discharge the defendants from the consequences legitimately flowing from the acts of their servants.

We are satisfied there is no error shewn in the pro'-* ceedings in the Circuit court, and its judgment is affirmed


text:
    TODD & LACY vs. HARDY et al.
    1. The endorser of a written instrument, is a good witness, in an action between the endorsee and maker$ where suit is not brought against the maker, at the first court after the assignment;
    Error to Morgan Circuit court.
    Covenant, tried beforeLanej J.
    The action in the court below, was covenant, on & sealed writing for the delivery of cotton, made by the plaintiffs in this court, to one Daniel Baliew, on the fifth of January, eighteen hundred and thirty, by which they obliged themselves, twenty days after date, to pay him five thousand pounds of seed cotton, and on failure thereof, two dollars per hundred weight. On the first May, eighteen hundred and thirty-one, the bond was assigned to the defendants in error, by Baliew, who, on the third of March, eighteen hundred and thirty-seven, commenced suit in the Circuit court of Morgan county, against the plaintiffs in error. The defendants below pleaded several pleas, and among others, the plea of set-off.
    By a bill of exceptions, taken on the trial, it appears that the plaintiffs below offered said Baliew, as a witness, to explain the nature of a credit on the back of the instrument, which purported to be a credit for eighty-seven dollars, was entered there without any payment in fact having been made — that it was a memorandum, which was on the back of the paper on which the bond sued on was written before the bond was made, and no payment was in fact made. To the admission of Ballew as a witness, the defendants below objected, on the ground of interest, but the court permitted him to testify in the cause. There was a verdict and judgment for the plaintiffs below.
    The admission of Ballew as a witness, is now assigned for error.
    Hopkins, for plaintiffs in error.

      McChmg, contra.
   ORMOND, J.

It is contended by the counsel for the defendants in error, that as suit was not brought on the bond against the makers, to the first court after the assignment, as the statute requires, in order to charge an endorser on an instrument of this kind, that Ballew was discharged by the laches o.f the endorsees of the papeiy from all liability as endorser, and therefore a competent witness.

This is not correct, although it is true, that a failure' to bring suit to the first term, will discharge the endorser from all liability on his contract of endorsement, save iff those cases excepted by the statute; yet'it is-equally Cldar, there are cases in which he would be liable to the-’ endorsee, although, as in this case, the time within which the suit is required to be brought against the maker, had been suffered to elapse.

If the paper assigned was a forgery, or had been in Whole or in part paid, when transferred, and no disclosure made of the fact, but transferred, as if the whole' amount were due, there can be no doubt, that in- either case, the endorsee would have a right of action, although suit had not been brought against the maker as the statute requires. The action would not be on the contract of endorsement, but on the deceit.

If, then, Ballew was liable over to the plaintiffs below, no suit having been brought as the statute requires, against the maker, it must have been for the deceit. If, when he transferred the bond, he represented that the whole was due, when in fact it was not, he had a direct interest in establishing it, and would therefore be an incompetent witness.

There is no proof that Ballew did thus represent it. Can we infer that he did, from the mere fact that he endorsed the bond to the defendants in error, and that they brought suit for the whole amount due on the face of the bond. He may have passed it for the small sum due, after deducting the credit, or he may have explained the credit on the back, as he did at the trial, and passed it for the full amount. On the first supposition, it is clear he had no interest, and on the second, his liability would not arise from making such statement, but from making it untruly.

To test this fully, we may suppose that the plaintiffs in error had succeeded in obtaining an off-set for the credit, and that the defendants in error had sued Ballew for the amount thus deducted. On the trial of that case, it is very clear that the record of the former judgment would not be conclusive against Ballew, and that to establish his liability, it would be necessary to prove that he represented the credit on the bond as no payment, and also that his representation was untrue.

Being liable only in this aspect of the case, to render him an incompetent witness, his interest should have been shewn by proof of these facts; this was not done in this case, and he was therefore a competent witness.

The judgment must be affirmed.


text:
    CUMMINGS et al. vs. M'GEHEE.
    1. Trespass for mesne profits, is not maintainable after a recovery of possession in ejectment, but damages may be recovered for the period intervening between the recovery of judgment, and the execution of the writ of habere facias.

    Error to Renton Circuit court.
    Trespass, tried before Shortridge, J. Verdict and judgment for plaintiff.
    In this case, there had been a recovery of the land in an action of trespass to try titles, previous to the commencement of the present suit. Judgment for plaintiff below was rendered upon a demurrer to the evidence, and the damages assessed by a jury.
    The plaintiffs here assigned for error—
    1. That the action of trespass to recover mesne profits cannot be maintained in this State, after trespass to try titles;
    2. That the declaration of plaintiff below, contained no substantial cause of action. •

      W. B. Martin, for plaintiff in error.

      Moody, contra,
   COLLIER, C. J.

The points made in the assignment of errors, lead us to enquire—

1. Is the action of trespass for mesne profits, maintainable 'in this country after the recovery of possession in ejectment, or trespass to try titles, &c.?

2. Are the facts set out in the demurrer to evidence, sufficient to entitle the defendant in error (under his declaration) to the judgment of the court ?

1. By the act of December, eighteen hundred and twenty-one, “ to abolish the fictitious proceedings in ejectment, and for other purposes therein mentioned,” (Aik. Dig. 265,) a remedy is given to the owner of lands to recover the possession in an action of trespass, and in the same proceeding, to recover damages and costs. By a statute passed in January, eighteen hundred and thirty-five, f‘ in relation to ‘suits of ejectment and demurrers,” the plaintiff, at his election, may bring either trespass to try title, or the action of ejectment, and when ejectment is brought, it is declared to be not only lawful, but the duty of the jury trying the case, “to asses the damages in favor of the real plaintiff, as in actions of trespass to try titles” — (Acts of 1824, p. 30.) Thus we discover, that instead of requiring the owner of land to bring two actions, as at common law, in order to complete justice, the-same purpose may be effected by a single suit. In fact,, the right of the plaintiff to recover damages, and the extent of them, are questions litigated upon the record, in-an action to try title, and a successful plaintiff, who has recovered no damages, or very inadequate damages, will be precluded from a re-assertion of his claim, in a subsequent and different action. It is a well established rule, that judgments are conclusive between parties and privies, not only as to those questions which were in point of fact adjudged by the courts rendering them, but they are alike decisive upon all the points that were in issue, or properly determinable. It is upon this principle, that an action of trespass for the recovery of mesne' profits accruing previous to the rendition of judgment in ejectment, or trespass to try titles cannot be maintained (Sumter vs. Lebie, 1 Const. Rep. So. Ca. 102; Coleman vs. Parish, 1 McCord’s R. 264; see also Denn vs. Chubb, 1 Coxe’s Rep. 466.) But there is no rule of law, that would be violated, by allowing a successful plaintiff to recover damages for the'period intervening between the recovery of judgment,- and the execution of a writ oí habere facias possessionem. In fact; moral justice de-’ mands it. Now, we cannot learn from the declaration,but that such was the only object proposed by the defendant in error; true, he declares for costs expended in effecting the recovery of possession, yet these expenditures may have been made subsequent to the judgment, in consequence of obstacles interposed to its execution, by the plaintiffs 'in error. All the costs up to that time, of directly and necessarily consequent upon that'suit, should have been considered by the jury in their verdict, but such as were occasioned by another proceeding affecting the subject, could not have been anticipated. Inasmuch,then, as it does not appear from the declaration, that it embraces matters litigated by the first suit, but may be for a cause occurring subsequently, we are of opinion that it is not substantially defective.

2. A demurrer to evidence, does not bring to the view bf the court, an objection to the pleadings — (Coit vs. Birkbeck, 1 Doug. R. 218) — It is a confession by the party demurring, of the truth of the facts given in evidence, and of the inferences and conclusions which, by a fair presumption, are deducible from those facts, and a reference of the law arising upon them to the decision of the court — (1 Phil. Ev. 297; Gibson vs. Hunter, 2 H. Bla. R. 206; 1 C.& P. 237.) The question referred to us by the assignment of errors, is, whether the' facts and inferences admitted by the plaintiffs in error, authorised the Circuit court to overrule their demurrer. We think the evidence so full and direct, as scarcely to admit of controversy. The first witness, whose testimony is disclosed in the demurrer, “stated that the defendants cultivated the land in the declaration mentioned, in the year eighteen hundred and thirty-six.” The defendant in error “ also read in evidence the record of a suit of the plaintiff against defendant, Fenton Cummings, and also ene, of the plaintiffs, against Thomas Cummings, for the same land, in which plaintiff recovered at October term, eighteen hundred and thirty-five, the said land, and two hundred dollars damages; also, the writ of possession and"its execution; also, the record of a suit in Chancery, in behalf of Fenton Cummings, filed in Benton Circuit court, against plaintiff and others, with an injunction duly served, and the bond given by the defendant, Cummings, for the same to the plaintiff, in which bill, the defendant, Cummings, claims this land by virtue of a pre-emption right. Said injunction was discharged at the Fall term, eighteen hundred aud thirty-six, Of the said court.”

Here is positive proof that the defendant recovered a judgment in October, eighteen hundred and thirty-five, affirming his title to the lands on which the plaintiff's in error are charged to have trespassed; that he was kept out of possession in eighteen hundred and thirty-six, by the act of Fenton Cummings, and that both Fenton and Thomas Cummings cultivated the cleared land that year. It is difficult to conceive a stronger case, than the defendant in error presented to the court for its decision upon the demurrer.

The judgment must be affirmed.


text:
    ROSSER vs. BRADFORD.
    1, An Indian reserves, under the treaty of the twenty-fourth of March, eighteen hundred and thirty-two, made with the Creek tribe of Indians, may sell and convey his land, if the deed be certified by the agent appointed for that purpose, and be apt proved hy the President of the United States, apd a good legal title in such case, will vest in the vendee.
    Error to Talladega Circuit court,
    Ejectment — tried before ^hoxkidge,, I,
    This was an action of trespass, to try the, title tq a tract of land described in the declaration. The suit wag instituted in Talladega county, the seventh of Febrpary, eighteen hundred and thirty-six. The case agreed, on which the judgment of the Circuit court was rendered, discloses the following facts:
    The land in controversy was reserved to one Athlocke, a Creek Indian, by virtue of the second article of the treaty of the twenty-fourth of March, eighteen hundred and thirty-two, made with the Creek tribe of Indians. On the twenty-ninth of April, eighteen hundred and thirty-four, Athlocke sold the land to John Sutherland, for the consideration of two hundred and fifty dollars, and executed a deed, conveying to him all the grantor’s right, title and claim. On the same day, this deed was certified by the agent appointed for that purpose by the President of the United States; and the certificate of this agent states that the money was paid to the said Ath-locke, in the presence of the agent. The contract stated in the deed from the Indian, was approved by the President of the United States, the twenty-fifth of October, eighteen hundred and thirty-four. On the sixteenth of November, eighteen hundred and thirty-five, Sutherlahd, Who never was in the actual possession of the land, cbh-Véyed it by deed of bargain and sale, with covenant Of general warranty to Rosser, the plaintiff to the actidh.
    Several judgments were obtained against SüthetláM ih eighteen hundred and thirty-two and eighteen huft-dred and thirty-three, in the Circuit court of Frabkiih county, in this State, on which writs of ft. fa. were is&uéfl Within the year, and returned by the sheriff of that coüiity, “no property:” and other fi. fa’s having been issued, directed to the sheriff of Talladega county, he levied Oh the land in controversy, as the property of Sutherland, Oh the twenty-fourth of July, eighteen hundred and thirty-five, and sold the same on the seventh of September, Of the same year, to Bradford, the defendant, to whom he executed a deed, conveying all the interest of the said Sutherland in the said land, which he could lawfully convey by virtue of the said writs of fi. fa. Bradford, the purchaser at the sheriff’s sale, entered in possession Of the land on the same day of the sale, and continued his possession when the suit was commenced. The Circuit court, on these facts, rendered judgment in favor Of the defendant; and the plaintiff, Rosser, now prosecutes this writ Of error to this court, to reverse the said judg^ tñént.

      Chilton, for plaintiff in error.

      Peck, contra.
   GOLDTHWAITE, J.

The regularity of the sheriff’s sale and deed to the defendant, is not disputed, or the validity of the judgments and executions under which the levy was made, denied; nor is it pretended that Sutherland acquired any new title, or that any thing occurred to affect the one previously held by him, between the time when the levy was made, and the commencement of this action. These circumstances, naturally enough, wo ild lead to the conclusion, that there was something very peculiar, either in the nature of the title under which the plaintiff seeks a recovery, or that the rules which govern this action, must be very different from those which govern actions of ejectment, because an ordinary legal title would have passed from Sutherland by such a sale, so as to leave no estate to be subsequently conveyed by him, and an ordinary equitable title, will not enable any one to maintain the action of ejectment. The plaintiff can succeed in this action, only by showing that the title of Sutherland to this iand, at the time when the levy was made, was of this extraordinary description.

We will, therefore, proceed to examine the nature of the title held by him at that period. He was the purchaser, by deed, from an Indian reservee, and the consideration for the purchase of the land having been paid in the presence of the certifying agent, appointed by the executive, the deed was certified in the usual form, and subsequently approved by the President of the United States. It has been determined several times by this court, that as soon as the individual Indians were located on their respective reservations, they acquired a legal title to the occupancy of the land, with the power to sell it, and consequently, to evidence the sale by a conveyance, which sale becomes valid to all intents and purposes, when approved by the President; and that such a conveyance from the reservee, after such approval, will enable the purchaser to maintiin any possessory action to recover the land — (Jones and Parsons’ heirs vs. Inge and Mardis’ heirs, 5 Porter, 327; Fipps vs. McGehee et al. 5 Porter, 413.)

In the case of Goodlet vs. Smithson, (5 Porter, 215,) we determined that the purchaser of land from the United States, acquired such a title by the act of purchase, evidenced by the usual receipt of the receiver of public monies, as was subject to be sold under an execution from a court of law. Tin se cases go very far to determine the present case, both as to the nature of the title, and its subjection to the ordinary process of execution. It is supposed, by the plaintiff’s counsel, that a material distinction can be drawn between this, and the case of Goodlet vs. Smithson, as by the terms of the treaty, the purchaser from the Indian reservee does not acquire any right to a title from the United States, until the payment of the purchase money is made, notwithstanding the contract of sale has been approved by the President. It is true, that this difference exists between the cases, but it does not seem to us to introduce any new principle.

The right to receive the evidence of title from the United States, depends, in either case, on the actual payment of the purchase money. In the case of the sale of the public lands, the mode of entering into the contract is prescribed by law ; in the case of the sale of the Indian reservation, it is left to the parties, but before any validity can be given to the contract, it must be approved by the President. In the one case, the register of the land office is the agent who makes the sale; in the other, it is the Indian reservee. It may be conceded, that in these, as in all other cases in which the government acts through the medium of agents, that the power exists, and may fie rightfully exercised, to examine and ascertain, if the prerequisites of the law have been complied with. If a pretended payment has been made to the register, or a fraud practised on him, there would be no obligation on the part of the United States, to give a patent to the fraudulent purchaser, nor is the individual who has procured the approval of the President to his fraudulent Con-ti act, or pretended contract with the Indian reservee, in a better situation. The setting aside a fraudulent sale, or an approyal procured by fraud, is a very different thing from declining to issue a patent, where the sale has been regular and legal, or where the approval has been made in the true spirit and intention of the treaty. It may be, that if such cases should occur, that the injured party would be without specific relief by mandam/us to the executive officers, but it is not a legitimate argument to urge, that any officer of government will refuse to perform any act required by law. The case Which has been supposed by the counsel for the plaintiff, of two or more approvals by the President, for the same land, under different contracts, is not more difficult of solution, than if two certificates or patents were issued by a register of a land office, or from the general land office. In the two first cases, the courts would necessarily have to determine which approval or certificate was issued in conformity with the law, and the same rule would probably apply to the case of conflicting patents, as, in this country, the title to the public domain cannot pass at the pleasure of the executive, but the mode of its alienation is prescribed by law.

Another distinction is attempted to be shown between the principle which it is supposed should govern this case, and that of Goodlet vs. Smithson, and arises from the use of the term title, in the latter clause of the third article of the treaty. This word is evidently used as an equivalent for patent, in the ordinary acceptation in which that word is received, when applied to a grant by the government. If a title is the right whereby one holds lands, it cannot be denied, that a title to the occupancy, Coupled with the power to sell, is vested by the treaty in the Indian reservee, and although this is certainly an incomplete title, and subject to be divested by the grant Of the government, evidenced by act of Congress, or by what is usually termed a patent, it is nevertheless & sufficient right to be recognised and enforced by the courts. All of the arguments a'j inconvenienti, might, however, bo well answered with the remark, that the case on the record; is free from all the supposed difficulties, and that it Will b,a sufficient, to dispose of the actual case before the court, and the supposed ones, whenever they arise.

It is not perceived that the decision of this court, in the case of Chinnubee vs. Nix, (3 Porter, 362.) has any material bearing on this case., There, the. question before, the court was, whether the widow of an Indian reservee, was. entitled to dower in the reserved land which her husband had sold previous to his death, and the determination was, that the Indian was seized of no dowable estate. This decision cannot be understood as pronouncing, that the Indian reservee had no title to the land occupied by him, or that none could be transmitted to his approved purchaser. It cannot be doubted, when the treaty is examined, that the reservee’s had a right, which is synonimous with title, to occupy the lands; this right could be transmitted lo an approved purchaser, who also became entitled to a title, i. <?., a patent from the United States!

It has been argued, that the act of eighteen hundred and twenty (Aik. Dig. 287, 173,) has an influence on this case. This statute did no more than repeal so much of the 9th section of the act of eighteen hundred and twelve, (Aik. Dig. 163,) as vested the equitable estate of a defendant in execution, where his lands were sold, in the purchaser, and revived the common law rule. By the common law, any legal estate in lands could be sold under execution, if coupled with a beneficial interest.

It has been supposed by the plaintiff’s counsel, that as Sutherland never had the actual possession of the land, that the mere right, to the possession, was not capable of sale. By the statute of uses, (Aik. Dig. 94,) the possession of the bargainor is transferred to the bargainee, and if the Indian reservee was possessed, or entitled to possession, all his rights passed to the purchaser from him, and could be transmitted to others, unless an actual adverse possession existed at the lime of executing the deed of conveyance.

The argument, that th* estate of Sutherland was exempt from execution, because the estate of the Indian reservee could not be alienated by the same means, will not stand the test of examination. It is evident, that no sale under execution, or otherwise, without the consent of the Indian, could divest him of his right to occupy the land, but this exemption was a peculiar privilege, personal to the Indian alone, and not an incident of the estate,. capable of being transmitted to his grantee. We have several statutes, which authorise the exemption of chattels of a peculiar description, or in the possession of particular individuals, from execution, yet it has never been supposed, that this exemption would continue after the chattel had passed to another, or had lost its distinctive character.

Our conclusion is, that the title to the land, the subject of this suit, passed to the defendant, Bradford, by the sheriff's sale, and that no interest remained in Sutherland, which could be conveyed to the plaintiff.

Let the judgment be affirmed.