text:
    ELY VS M’CLUNG, (surety.)

      As to usurious contracts.

    1. Usury is complete where a direct loan of money is made, and move than the legal rate of interest is secured for the forbearance of payment.
    2. Whatever form, shape, or disguise, a contract for the loan of money assumes, when the capital is to be returned, at all events, — a profit made, or loss imposed, upon the necessities of the borrower, [over and above the legal rate of interest,] will constitute usury.
    3. To malte a contract for the loan of money usurious, there must exist the intention, knowingly to commit usury.
    4. The intent of parties to commit usury, where the contract is not upon its face usurious, is to be collected from the circumstances of the case, — the situation, and object of the parties, at the time of the loan ; the character of and use to be made of the funds loaned, or article transferred ; and the time, manner, and place of repayment.

      5. A contract for the loan of money, upon which a note and surety is taken, and which, by the terms of the note, is to be repaid in another Slate, (not containing any agreement as to the particular rate of interest to be charged,) which, after maturity, and the insolvency and death of the borrower, is extended by his sureties upon a new contract, under which a higher rate of interest, is charged upon the note, after its maturity, than is authorised by the laws of the State, where the note is payable — is usurious.

      In error to a decree of the Circuit Court of Mad-, ison, exercising Chancery jurisdiction.
    This case arose upon a bill in Chancery, filed by William Ely, Commissioner of the funds of the Arne-rican Deaf and Dumb Asylum, at Hartford, Connecticut, against James W. M’ Clung, the surety of one Jesse D. Noble; the object of which was to foreclose a mortgage.
    The bill charged, that on or about the nineteenth day of June, one thousand eight hundred and twenty-eight, defendant being seized in fee, of a certain lot or parcel of land, in the town of Huntsville, and being indebted to orator, in the sum of four thousand seven hundred and fifty-two dollars and forty cents, by two notes of hand, bearing date the twenty-second December, one thousand eight hundred and twenty-seven, and executed by defendant and one Andrew D. Veitch, who had since died — one of which was for the sum of six hundred and eleven' dollars and ninety-two cents, due and payable at the Mechanics’ Bank of New York, on the nineteenth day of March; the other for the sum of four thousand one hundred and thirty dollars and forty-eight cents, due and payable at the same time and place : and, being desirous of securing orator in the payment thereof, by deed, duly executed and recorded, bearing date the nineteenth day of June, one thousand eight hundred and twenty-eight, conveyed to orator, the certain parcel of land aforesaid.; and bargained and sold the same to complainant — with a provision of rede npti.sr, if the aforesaid notes were paid ; otherwise, to be sold for the satisfoction of the same.

      The bill then alleged a failure on the part of defendant, and of Veitch, to discharge the same; averred having exhausted all avails against Veitch’s estate; and prayed a foreclosure.
    The answer of M’Clung averred the following circumstances, to be the facts under which the notes described in the bill were executed;
    A certain corporation, located at Hartford, in the State of Connecticut, and styled, “The American Asylum, at Hartford, for the education and instruction of the deaf and dumb,” some time about the year one thousand eight hundred sixteen, seventeen or eighteen, received from the Congress of the United States, a donation of a township of land, which which was principally, if not entirely selected by said corporation, through their agent, the complainant, in Alabama. Complainant, in his capacity of agent, having sold large quantities of said land, and having in his hands,, or in the hands of his sub-agent, one John Boardman, a large amount of depreciated currency, consisting of Georgia and Mobile Bank notes, which they desired to convert into specie, or its equivalent — on the nineteenth day of March, one thousand eight hundred and twenty-four, loaned to the before named Jesse D. Noble, in the towrn of Huntsville, and State of Alabama, the sum of three thousand two hundred and ninety-seven dollars, in said depreciated currency, then at a discount of about twenty-five per cent.; and obtained therefor the ■note of said Noble, as principal, with the respondent and the said Andrew D. Veitch, as sureties, for the sum of thirty-eight hundred and twenty-four dollars and fifty-two cents, due on the nineteenth day of March, one thousand eight hundred and twenty-six —the said note being for the nominal amount of said depreciated notes, with five hundred and twenty-seven dollars and fifty-two cents, interest, at the rate of eight per centum per annum, added thereto, payable to said John Boardman, at the Mechanics’ Bank of the city of New York — the said M’ Clung not being aware of the usurious character of the transaction, at the time of signing it. When the said note was executed, Boardman, as the agent of complainant, obtained from Noble, a mortgage upon a house and lot, which was duly recorded. On the sixth day of September, one thousand eight hundred and twenty-five, said Veitch and M’Clung becoming uneasy, in consequence of the failing condition of Noble, procured from him a deed of trust upon slaves, as an indemnity against the security aforesaid: and some time thereafter, to wit, about the time of the maturity of the aforesaid note, Noble left the northern part of Alabama, entirely insolvent, and had since died. Subsequently, the trust property was sold for the benefit of Veitch, and M’ Clung purchased in for their joint benefit, and then conveyed to the complainant, by mortgage, to secure the aforesaid debt of Noble.
    The answer of M’ Clung, after charging sundry payments, insisted that complainant was only entitled to recover the value of said depreciated currency, at the time loaned, together with interest, at the rate of seven per centum per annum, being the rate allowed in the State of New York, where the said note was payable.
    The above facts were established in the cause, to-géther .with the additional circumstances, that the said Veitch and M’Clung executed their own notes, after some indulgence had been extended; that the mortgage here sought to be foreclosed, was executed in further security; and that seven per centum per annum, was the legal rate of interest in the State of New York. Also, that a difference existed between the notes received by Noble, and specie, to the extent of about six and a half per cent.; and that exchange on New York, bore a premium at Huntsville.
    The Chancellor below having dismissed the bill, on the ground that the transaction was usurious, the case was brought here, by writ of error, and argued by Ellis & Peck, for the plaintiff in error ; and by Ormond and S. Parsons, for the defendant.
   HITCHCOCK, C. J.

— This was a bill in Equity, filed in the Circuit Court of Madison county, by the plaintiff in error, against the defendant, to foreclose a mortgage. The defence set up is usury. -

The facts of the case, as disclosed by the answer and depositions, are, that the complainant, as commissioner of the funds of the American Asylum, at Hartford, Connecticut, for the education of the deaf and dumb, had in his hands, at Huntsville, in this State, in March, eighteen hundred and twenty-four, a considerable sum of money, which had been received by him for said institution, being the proceeds of the sales of lands granted by the United States to that institution: that said money was principally in Mobile and Georgia Bank notes : that being anxious to remit the funds to the North, and bills on the North being then at a premium at Huntsville, he loaned, through his said agent, J. Boardman, to one Jesse D. Noble, a merchant residing at Huntsville, on the nineteenth of March, eighteen hundred and twenty-four, who applied to him for that purpose, the sum of three thousand two hundred and ninety-seven dollars, to he repaid two years after date, in the city of New York, with interest at eight per cent.; and that to secure said payment, he took the joint note of Noble and one Andrew D. Veitch, and of the defendant in this bill, which was also secured by a mortgage on some property of Noble in Huntsville; and that the note including the interest, amounted to three thousand eight hundred and twenty-four dollars and fifty-two cents: that payment for said note was received by Noble in the above named bills, at par with specie : that the note was not paid at maturity, Noble having, soon after the loan, become insolvent: that subsequently, it was returned to Boardman for collection: that he called on Veitch and the defendant for payment, which they professed to be unable to make, and asked for indulgence, which was granted, from time to time, without instituting judicial proceedings, until the twentieth of December, eighteen hundred, and twenty-seven, a period of one year and nine months after the maturity of the note, when payment was again urged; but upon the parties still asserting they were unprepared to pay, Boardman proposed to them to pay the interest which had accrued since its maturity at some early day, and the principal in one year thereafter, with the additional interest thereon, to which they readily assented, and agreed to take up the original note, to assume the debt, and to give their joint note, with ample security, for the final paymeut, by deed of mortgage on real estate in Huntsville: that accordingly, two notes were given by Veitch and the defendant; one for six hundred and eleven dollars and ninety-two cents, being two years interest on the original note, at eight per cent, from its maturity, payable to William Ely, commissioner, &c., at the Mechanics’ Bank, New York, on fhe nineteenth day of March, eighteen hundred and twenty-eight; and the other, for four thousand one hundred and thirty dollars and forty-eight cents, being the amount of the original note and one year’s interest thereon, at eight per cent., payable at the same place, on the nineteenth day of March, eighteen hundred and twenty-nine: that the original note was then given up, the security on the house and lot released, and a mortgage taken to secure the two new notes on town property of Veitch : that some time after, the defendant also executed a mortgage on a house and lot in Huntsville: that Veitch died soon after: that the notes were not paid at maturity: that the property secured by Veitch has been exhausted; and that a balance is still due, for which this bill is filed, to subject the property of the defendant.

A cross bill was filed by the defendant, making Boardman a party, whose answer was filed. This bill was subsequently dismissed; but the testimony of Boardman was taken upon interrogatories, which contains substantially the facts disclosed in his answer.

Boardman denies all intention to commit usury; states that the bills received by Noble were upon specie paying banks : that they were then received in all the land offices of the United States in this State, in payment for public lands ; by the merchants in town in all commercial transactions, and all over the State at par ; also by the complainant for lands of the Asylum; that they were sound funds, and what he considered at par with specie : that the motive of complainant and himself; as sub-agent, in making the loan, was to convert the notes into northern funds without loss of interest to the Asylum, and to save paying a premium for the exchange between Huntsville and New York: that at the time of the loan to Noble, he had no knowledge of his embarrassments, but believed him solvent, though he was advised of his difficulties with his partner, Cox, which resulted in a dissolution of the firm, at that time solvent.

It was pi-oven, that at the date of the loan to No“ ble, there was a difference between Mobile and Georgia notes and specie of six and a half per cent.; that exchange on New York had always borne a premium at Huntsville. What has been the rate, or whether it has been uniform, is not stated; and that seven per cent, interest is allowed by the laws of New York.

At the final hearing in the Court below, the Chancellor dismissed the bill, on the ground of usury. To reverse this decree, the case has been brought here by writ of error.

Three points are made, upon which the charge of usury is predicated.

1. That the notes received were not of par value, at the time and place of making the contract.

2. That the borrower, Noble, was charged with the loss, in the difference of exchange between Huntsville and New York; and

3. That eight per cent, was charged and secured to he paid, in the new contract, on the first note, from its maturity to the assumption by the defendant and! Veitch of that debt, when they were only liable for seven per cent., the interest of New York.

To constitute usury, there must be a contract, a forbearance, and the taking of a higher rate of interest than eight per cent, per annum: When there is a direct loan, and more than legal interest is secured for the forbearance of payment, the usury is complete, and can only be rebutted by.proof of a mistake in the calculation of interest: and in general, when a profit is made, or a loss imposed, on the necessities of a borrower, whatever form, shape, or disguise, the treaty for a loan may assume, and the capital is to he returned at all events, it has been adjudged to be so much profit upon the loan, and a violation of the laws, which limit the to a specific rate of interest.

In construing the usury laws, however, the uniform rule is, that there must be an intention knowingly, to contract for, and to take usurious interest; for if neither party intend it, but act bona fide and innocently, the law will not infer a corrupt agreement.

This intent, when the contract is not usurious on its face, must be gathered from the circumstances of the case — such as the situation and object of the parties at the time of the loan; the character and use to he made of the funds loaned, or article transferred, and the time, manner, and place of payment.

In regard to the first two points made in this case, and which relate to the original loan, it must be conceded, that a loss was imposed upon the borrower between what ho received and specie, and also to the extent, whatever it was, of the difference in the rate of exchange. Whether the complainant has proven sufficient to relieve himself from the charge of the usurious interest, inay admit of a very serious question.

The case of the Bank vs. Waggoner, et al — has been urged as a much stronger case in favor of establishing the interest than in this, yet that was held not to be usurious.

There is but little to make that case analogous with this, except that there, as well as here, the funds were received, as sound funds by the lender, and that they would not, in cither case, command specie at the place where they were loaned. In the case cited, the lender did not wish to make the loan, and the loaned funds were perfectly secured, even bearing interest, and nothing was saved or made by the lender. In this, the lender was anxious to loan, to save a loss both of interest and of exchange, which were accomplished by the loan. In the case cited, the borrower stated, and it appeared that the funds loaned were equal to specie to him, and that the transaction amounted only to an exchange of credits between the Bank of the United States and the Bank of Kentucky, with this advantage to the borrower, that he obtained a longer time in which to make payment, without paying a higher rate of interest than six per cent.

Noble being dead, no evidence has been adduced as to the use he intended to, or did make of the funds received by him ; but it is proved, that at the time of the loan, exchange was at a premium on New York, the interest of which, at the maturity of the note, he took upon himself to pay; and it is not proven, that the course of exchange ever ran m favor of Huntsville; neither is it proven, that the business in which Noble was engaged, rendered it more to his advantage to pay in New York than in Huntsville.

There are some of the features which distinguish the two cases, and which also distinguish this case from that in 10 Wendell, 116 — which was cited by the plaintiff in error, on the point relating to the difference in exchange. It being there proven, that it was for the accommodation of the borrower to pay at a place different from that at which the loan was made, and there was no proof that more than the usual rate of exchange between the two places was charged.

We do not, however, intend to express a decided opinion upon these two points in the case. It being a question of intent, arising from the circumstances of the case, the evidence not being very explicit upon some of the most material points — we have preferred to waive a decision upon .them, particularly, as we are satisfied that the usury is made out upon the last point.

The first note, it must be recollected, was payable in New York. Interest, therefore, from its maturity, could only be legally exacted from that time, at the rate allowed by the laws of that State, which is admitted to be seven per cent.; yet as a part consideration for the forbearance, when the new contract was made, eight per cent, was exacted. Its being taken in- a separate note, does not vary the case : it was a part of the contract.

Admitting that the original loan was not tainted with usury, by any of the points above alluded to, and admit also, that the parties had a right to stipulate for eight per cent, up to the maturity of the first note, it does not appear that any stipulation, (if any could legally be,) was made as to the rate of interest, in the event that the note should not be met at maturity.

It is suggested in argument, that perhaps this may have been the understanding of the parties. This is, however, not averred in the answer of the complainant, or by Boardman; and it would only be legal upon the supposition that, in that event, the debt should be paid in Huntsville. But this presumption is rebutted, if it could be made, from the fact, that the two last notes are made payable in New York : and here it is perhaps proper to remark, that the second point made against the first note, is applicable to^fche notes which are now the subject of controversy, as there is no pretence that it was more convenient to Veitch, or the present defendant, to pay in New York, than in Huntsville. If, however, the first note was legally due in New York, then, to give the party a right to eight per cent, interest since that time, it should not only appear, that this point was settled at the time of the making of the original loan, but also that the payment should be made in this State. That not being the case, but eight per cent, being secured on a contract due in New York, and the notes being still made payable in New York, there is a manifest violation of the usury laws of New York — one per cent, more being secured than those laws authorise. If the parties were dealing in reference to the laws of this State, then one per cent, more has been exacted than was due from the maturity of the first note, to the making of the second, and the payment being required to be made in New York, thereby subjecting the party to the loss of the exchange between the two places, brings it unexplained within the principles laid down in a former part of this opinion, and as recognized in 2 abd 9 Peters, above cited.

. Objections are taken by the counsel for the complainant, to the right of the defendant, to consider these last points, on the ground that they are not specifically charged as usurious.

It is true, that a usurious contract, like any other contract, must be proved as alleged ; and a variance as to the quantum of usurious interest, or in any other material matter, will be fatal; but it is sufficient to aver and prove the contract,» according to its legal effect.

Here, the charge is specific, that eight per centum was exacted, when only seven, at most, wTas due.

It is the duty of the Court to apply the law to the facts, and if the charge of usury is made out, it is sufficient. In this part of the case, viewed either in reference to the laws of New York, or of this State, the contract, upon its face, imports usury, by the express reservation of more than the legal interest of either State: there is no room for presumption or explanation: the intent is, in legal contemplation, apparent — res ipsa loquitur.

The decree must, therefore, be affirmed.

       37Peters'lender

      9 ib. 387.

      9 peters,

      3Ba™-*


source: Caselaw Access Project

author: COLLIER, J.

license: Public Domain

text:
    KENNEDY and MORELAND VS THE HEIRS OF M’CARTNEY.

      Points upon the construction of the treaty o/" 1817, between the United Stales and Cherokee Indians.

      As to estates granted by Government upon a contingency — how revested.

      As to title acquired by one, (having none before,) after conveyance.

      As to evidence in trespass to try titles.

    1. The reservation of lands to the Cherokee Indians, under the 8th article of the treaty of 1817, enures, as a life estate to the reservee, only upon compliance with the condition of continuance thereon, as stipulated; and this failing, the fee simple in the land reserved, reverts .immediately to the United States.
    2. This condition of continuance upon the reservation, during the life-time of the reservee, is one annexed to the life-estate; and upon the breach of it, the expectant estate of the reser-vee’s wife and children, is at once destroyed.
    3. That a reservee has complied with the requisites of the treaty, in making his selection — registering his name, &c. may be proved by the deposition, regularly taken, of the Cherokee agent.
    4. A reservee of lands, under this treaty, can not make any disposition by lease, stipulating a continuance beyond the period of a removal from the land, or the extent of his life.

      5. Though it seems a lease might be effected of a portion of the land, for a time not beyond these periods, if possession is retained of the residue.
    6. Estates granted by government, subject to forfeiture, upon a future condition — in the event of their forfeiture, no entryor other act is necessary, in order to divest the estate out of the grantee.
    7. Where one, having no title to real estate, conveys it, with warranty of title, a title, acquired after the grant, will pass to, and vest instantly in the grantee.
    8. The act of Congress of the 29th May, 1830, which relinquished to Conaleskee, a Cherokee Indian, and his heirs, all tile right of reversion of the United States in and to a certain tract of land, contemplated an immediate sale of the same by him; and not a mere possession, for the benefit of a previous purchaser.
    9. It seems, that in trespass to try titles, the record of a previous suit between the ancestor of the plaintiff, and the de-> fendant, for the same premises — might be good evidence, to show notice to the latter of a paramount title, in order to fix a period from which the plaintiff is entitled to recover dama-* ges for the occupancy of the premises.
    This was an action of trespass to try titles, in the Circuit Court of Madison; and was prosecuted by the next friend of the heirs of James M’Cartney, against William M. Kennedy and Elisha Moreland, for the recovery of a tract of land, known and describe ed as the reservation of Conaleskee, or Challenge, a Cherokee Indian.
    The defendant, Kennedy, plead — first, not guilty ; second, a special plea, controverting the title of the plaintiffs in the land in question, and setting out a title in fee simple, from Conaleskee to him, of date the first bf April, eighteen hundred and twenty-nine, and alleged to have been duly acknowledged and recorded. — ^Thirdly, a special plea, relying upon the same title. And there were oyer and demurrer to the second and third pleas; which demurrer was sustained: and, subsequently, verdict and judgment rendered in favor of the plaintiffs.
    By a bill of exceptions taken to the opinion of the Court, the following facts appeared to have transpired on the trial.

      The plaintiffs introduced and read to the jury,
    First — the treaty between the United States and the Cherokee nation of Indians, entered into on the eighth of July, eighteen hundred and seventeen.
    Secondly- — an act of congress, approved the twenty-ninth May, eighteen hundred and thirty, relinquishing to Conaleskee all right of reversion of the United States, in and to a reservation of his, under the treaty.
    Thirdly — a deed of conveyance in fee simple, from Conaleskee, alias Challenge, to John M’Anulty, of the lands in controversy, dated the seventeenth day of June, eighteen hundred and thirty.
    Fourthly — a deed of conveyance, executed on the twenty-sixth of August, eighteen hundred and thirty, of the same premises, from John M’Ahulty and wife, to James M’Cartney, the ancestor of the plaintiffs — all regularly acknowledged and registered.
    The plaintiffs proved by a witness, that Conales-kee, after the date of his deed to M’Anulty, and pri- or to the date of M’Anulty’s deed to the plaintiffs’ ancestor, left this State, and went to his tribe, beyond the Mississippi — out of the limits of the United States, and any territory thereof. They also proved, that the defendants were in possession of the premises; and the value of the rents thereof. Also, that from the year eighteen hundred and twenty-five up to the time of his leaving the State, Conaleskee had not resided upon the lands in controversy : and that the lands claimed were parts of the reservation made by him under the treaty.
    The plaintiffs further introduced and read to the jury, after] objection from the defendants, but which the Court overruled — first, the copy of a commission from the President of the United States, to Robert Houston, to lay off the reservations made by the Cherokees, under the treaty; together with copies of sundry letters of John. C. Calhoun, Secretary of War, specifying his duty — all regularly certified, as taken from the records of the war department.
    Secondly — A copy of the plait of the land in controversy, taken from the books of the general land office — also, regularly certified.-
    Thirdly — The deposition, regularly taken, of Hugh Montgomery, agent of the Cherokee nation East of the Mississippi, showing the entry by Conaleskee of the reservation made by him, under the treaty; a survey of the same; and a plait and certificate.
    Fourthly — The record of a suit commenced by the plaintiffs' ancestor, against the defendants, in his life-time, for the recovery of the lands in question, but abated by his death; and which was offered as evidence of a demand of the possession.
    The defendants offered evidence, on their part, to show, that at the time of making the treaty of eighteen hundred and seventeen, and at the time of the - registration of his name in the office of the agent, Conaleskee did not reside within the territory ceded; and that he was not the head of an Indian family; and had no improvements upon the land at that time. Also, that Conaleskee said, when he left the country, “ that he did not go with a view of remaining permanently, but of returning soon again:” that, when going, he cried — because, as he said, “ that M’Anulty and M’Cartney threatened to shoot him, if he did not go.” Defendants also offered to prove that Conaleskee employed one, to build a mill upon a reservation made by him, upon Flint River; that he afterwards abandoned that reservation, and without any other entry, than that which was proven in' the deposition of Montgomery, took possession of the land now in controversy, and procured its survey.
    To the introduction of all this proof, the plaintiffs objected, and the objection was sustained and the testimony excluded.
    The defendants then read to the jury a conveyance in fee simple, from Conaleskee to Kennedy, of the premises in question, dated the first April, eighteen hundred and twenty-nine. A lease for thirty years from Conaleskee to one Eason, executed about the year eighteen hundred and twenty-four, of part of his said reservation, was also produced in ■ evidence, containing an assignment by indorsement of the same from Eason, to Kennedy.'
    It was also proved, that from the year eighteen hundred and twenty-five, up to the time of leaving this State, Conaleskee lived with and boarded with Kennedy; and that said lease included all the land in the possession of the defendants, at the time of the commencement of this suit.
    The defendants, upon this testimony, requested the Court to charge the jury—
    First — That unless the plaintiff had proved that the land sued for, lay within the boundary of the territory ceded by the treaty of eighteen hundred and seventeen, they could not recover in this action.— This instruction the Court qualified, by saying, that, the treaty, the act of congress, of eighteen hundred and twenty, and tlie platt, were competent proof of that fact.
    Secondly — That the eighth article of said treaty vested in Conaleskee, a fee simple title to the land : and his deed to said Kennedy was good.
    This instruction the Court refused.
    Thirdly — That the said eighth article of said treaty, restraining Conaleskee from removing from said land, created a condition, and not a limitation; and, being a condition, its breach did not avoid the estate thereby granted, but only rendered it voidable ; and being voidable, only, the grantor, (that is, the United States,) alone, had a right of re-entry, for breach of such condition ; and, unless the grantor did enter, none other could; and, until the grantor did enter, the grantee’s estate in the land was good.
    This charge the Court also refused, but informed the jury, that if they believed Conaleskee removed from the land, such removal was a forfeiture of his: estate, and therefore, his estate in the same, ceased.
    Fourthly — That although the jury should believe this to be a condition, and Corialeskee’s sale to Kennedy a breach of it — yet this sale passed his whole interest to Kennedy, whose estate, thus derived under such sale was good, and could not be defeated or made void by Conaleskee, or those claiming under him ; but only by the United States, the grantor.— This the Court also refused, but with the qualification above. ¡

    Fifthly — That although the jury should believe the title derived by Kennedy, under the deed from Conaleskee to him, should be absolutely void- — yet, that the warranty in said deed estopped Conaleskee, and all persons holding under him, from claiming in opposition to said deed. This the Court refused.
    Sixthly — That, if the jury believed the clause restraining removal, was a condition, then the condition was annexed to the life estate, and not to the remainder or reversion in fee; and, being annexed to the life estate, void, because it would go to defeat the estate in part, and not in whole.
    This was also refused.
    Seventhly- — That if the jury believed the United States intended to convey a reversion in fee, to the children of the tenant for life, then the reversion was not contingent — depending upon the contingency of Conaleskee’s remaining upon the land.
    This the Court likewise refused.
    Eighthtly — That if the jury believed, at the passage of the act of Congress, Conaleskee had no estate in possession in said land, he never having acquired one before; or his previous estate therein being forfeited and void — then said act of Congress did not vest in Conaleskee the reversion of the United States, nor any estate whatever.
    This the Court refused also.
    Ninthly — Although the jury should believe the deed from Conaleskee to Kennedy, to be a violation of law, and of the treaty; yet, if the United States waived the wrong thereby inflicted* and afterwards released to Conaleskee their reversion, — then such release operated to vest said reversion in Kennedy; and if not in him, it vested in no person, but remained still in the United States.
    This was refused.
    Tenth — That though the jury should believe Co-aleskee had forfeited his estate in said land, yet that his estate therein continued until the United States took some steps to ascertain such possession, and re-vest the estate in them; and that this could be only done by inquest of office.
    This was refused.
    Eleventh — That the United States, by the above named act of Congress, had acknowledged that, at its passage, Conalesskee’s estate in said land was still good; and that his sale to Kennedy had not avoided it; or if it was forfeited, the United States relinquished all the right of enforcing their remedy against him, for it.
    This was also refused.
    Twelfth — That though the lease from Conaleskee to Easpn, and assigned to Kennedy, was void, yet Kennedy having entered on the land, by the consent of Conaleskee, this constituted him tenant from year to year; and being such tenant, neither Cona-leskee, nor those holding under him, could recover the land without first giving six months notice to quit, which six months should expire at the end of the year. This was also refused.
    Thirteenth — That if the jury believed there had been an attempt made by Conaleskee, to sell said land to Kennedy, which sale had never taken effect, and been carried into execution, — then neither Cona-leskee, nor those holding under him, could recover rent for the same.
    This the Court refused — qualifying the same by charging that plaintiffs were entitled to recover rent from the time of their title and demand.
    The Court also charged the jury, that if they believed Conaleskee had removed from the land, that by such removal he forfeited his estate, which thereby became absolutely void: and further, that said treaty did not convey any title by way of grant from the United States, but that Conaleskee held the land as a reservee under the treaty.
    To all which the defendants excepted', and took their writ of error.

      Robinson, for plaintiff in error.

      Me Clung and S. Parsons, contra.
   COLLIER, J.

— The defendants in error, as the ■heirs at law of James M’Cartney, deceased, brought an action of trespass to try titles, in the Circuit Court of Madison, against the plaintiffs in error.

The defendants to make out their title, relied upon treaties of the eighth of July, eighteen hundred and seventeen, and the twenty-seventh of February, eighteen hundred and nineteen, between the United States and Cherokee tribe of Indians, which allowed reservations of six hundred and forty acres to the heads of families of that tribe, who desire to remain east of the Mississippi. The defendants in error also produced a sworn copy from the files and entries in the books of the offiee of the Cherokee agent, of a survey and platt of six hundred and forty-acres of land, allotted to Conaleskee, or Challenge, under the former treaty. They then gave in evidence an act of Congress of the twenty-ninth May, eighteen hundred and thirty, by which it is enacted, “ That all right, title, and interest which might accrue or revert to the United States, to the reservation of land now claimed and possessed by Conaleskee, commonly called Challenge, «fee, under a treaty made and concluded between the United States and the Cherokee tribe of Indians, on the eighth day of July, in the year of our Lord, one thousand eight hundred and seventeen, &c., all lying in the State of Alabama, be and the same are hereby relinquished and vested in the said reservees, and their heirs respectively : Provided, that the said Conaleskee, commonly called Challenge, &c., with their respective families, shall remove to their respective tribes west of the Mississippi. river, not' included within any State or Territory: and that the government of the United States shall not be chargeable with the expense of their removal, or transportation, or with any allowance of land to, or on account of, either of them or their respective families : And provided also, that no conveyance or deed of the said lands, or any part of them, shall be valid or effectual, until every such conveyance or deed shall be submitted to one of the district attorneys for the district of Alabama, for his approbation : and if, after enquiry into the facts and circumstances attending the contracts for the sale of any of the said lands, he shall be satisfied that such contracts are fair, and that the consideration paid, or agreed to be paid therefor, is adequate, he shall endorse his approbation on each conveyance and deed so approved; and thereafter the same be deemed valid and effectual”

The defendants in error then proved, that Cona-leskee, or Challenge, had removed, with his family, west of the Mississippi river, as contemplated by the first proviso of the act. They also produced and read to the jury, a deed dated the seventeenth June, eighteen hundred and thirty, approved in due form, by the attorney for the northern district of Alabama, and regularly proved and recorded, from Conaleskee, or Challenge, by which he conveyed in fee simple, the land in controversy, to John M’Anulty ; and also a deed from M’Anulty, and wife, properly acknowledged, by which the same land is conveyed to James M’Cartney, the ancestor.

The defendants in error gave in evidence, a lease from Conaleskee, or Challenge, to Abner Eason, dated the twenty-ninth day of June, eighteen hundred and twenty-four, of all the lands in question that is occupied by them, for the term of thirty years, which lease they proved to have been assigned to Kennedy about the year eighteen hundred and twenty-five.

The plaintiffs in error then gave in evidence, a conveyance in fee of the lands in question, with warranty of title, dated in May, eighteen hundred and twenty-nine, from Conaleskee, or Challenge, to William M. Kennedy. Conaleskee, or Challenge, ceased to occupy'before the passage of the act of May, eighteen hundred and thirty.

The plaintiffs in error proposed to prove these further facts—

That when Conaleskee left the land, he said he did not intend to remain away, and that he cried, because, as he said, M’Anulty and M’Cartney threatened to shoot him if he did not go: that Conaleskee, at the date of the registration of his name, did not live on the ceded territory, and that he was not the head of a family, and had no improvement on the land; which several propositions were refused by the Court.

Many instructions were asked of the Court, by the counsel for the plaintiffs in error, most of which were denied, and some given in qualified terms.

As the correctness of the judgment of the Court, so far as it depends upon these, must necessarily be examined in considering the title of the defendants in error, we will decline noticing them more particularly here.

The questions naturally arising in this case are—

First — What description of estate does the treaty of July, eighteen hundred and seventeen, propose to pass to the reservees under it'?

Second — Has the plaintiff in error, William M. Kennedy, acquired any interest in the reservation, by the lease, of which he claims to be the assignee, or under the deed of the reservee.

Third — What influence has the act of May, eighteen hundred and thirty, upon the claim of Kennedy, and does it give validity to the title set up by the defendants in error.

1. By the treaty of July, eighteen hundred and seventeen, the Cherokee tribe of Indians .cede to the United States, a portion of their territory, lying east of the Mississippi river. In its third article, it is stipulated, that a census shall be taken of the entire Cherokee nation, both east and west of the Mississippi, in the month of June, of the year eighteen hundred and eighteen, with a view to ascertain the number east of the Mississippi, and those who intend to remain there.

By the 8th article of that treaty, the United States agree to give to each head of a Cherokee family, residing east of the Mississippi, a reservation of six hundred and forty acres in a square, to include their improvements, which are to be as near the centre thereof as practicable, “ hi which they will have a life estate, with a reversion in fee simple to their children, . reserving to the widow her dower, whose names are to be registered in the office of the Cherokee agent, which shall be kept open until the census is taken, as stipulated in the third article : Provided, that if any of the heads of families, for whom reservations may be made, should remove therefrom, then, in that case, the right to revert to the United States.”

In the treaty of eighteen hundred and nineteen, among other stipulations, it is agreed to dispense with the census, provided for by that of eighteen hundred raid seventeen. And the United States agree to pay for all the improvements made upon the ceded territory, which enhance the value of the lands, and do agree to allow a reservation to the heads of Cherokee families, as previously stipulated!

In considering the character of the estate to which the reservees, under the treaty of eighteen hundred and seventeen, are entitled, vve do not deem it necessary to examine the abstruse doctrine pertain-1 ing to estates tail, or the subtle and artificial distinct tions, between conditions asid limitations, which have been so elaborately discussed at the bar.

In the interpretation of deeds it is sometimes profitable to draw knowledge from this extensive source of law learning; but in the exposition of an instrument, having the form, and subject to the rules of construction which apply to treaties, it cannot be necessary to refer to the common law, unless it is apparent that the stipulations of the parties were made, * with a view to the control of that system of jurisprudence. The treaty furnishes no such indication; nor indeed could it, for the Cherokees must then have been wholly ignorant of our municipal laws.

It is a cardinal maxim of interpretation, that it is not permitted to interpret what has no need of interpretation. When an act is conceived in clear and precise terms, where the sense is manifest, and leads to nothing absurd, there can be no reason to refuse the sense which it naturally imports

It is difficult to conceive of terms less equivocal than those employed in the eighth article of the treaty of eighteen hundred and seventeen. In truth, they are so definite in their meaning, as to forbid the application of any rules of construction. They declare, that the reservee shall have a life estate, with a reversion in fee simple to his children: Provided, that if he remove from his reservation, then, and in that case, the right shall revert to the United States. The right to what! The right to the reservation, most certainly. Whose right! The right of the reservee, for his children had no right during his life: and this right, (from the intrinsic force of the term revert, and the nature of the subject,) is to return to the United States, as they acquire it by the treaty, in fee simple.

In-order that the reservee might avail himself of the provision made for him, it was necessary that his name should be registered with the agent for the Cherokees, before the census provided for by the third article of the treaty, was taken; and it was then the duty of the government to cause his reservation to be allotted to him, as stipulated by the eighth article, upon being satisfied that he was the head of a family. Conaleskce’s name appears to have been registered in due time, and a reservation allotted to him. .

The plaintiffs in. error have, however, objected to the evidence by which these facts appear. The deposition of the Cherokee agent proves the registry of Conaleskee’s name, within the proper time. It also furnishes a copy of the survey and platt of his reservation, duly entered with the agent. The deposition appears to have been regularly taken, and in our opinion, is not only evidence, but is the best evidence of the facts shewn by it. The original survey and platt are papers of such a character, as the Court would not have compelled the production of, had they been within this Stale. Sworn copies would then have been evidence — much more now, when they are beyond the reach of the process of our Courts, are copies, verified by oath, admissible as evidence — Hamner vs Eddins. The appointment of a surveyor, his acceptance, and a letter of instructions from the Secretary at War, are proved by copies, certified by the individual who presides over the office of Indian affairs, attached to the Department of War, whose official character is certified by the Secretary at War, under the seal of the War office. These documents certainly could not have been material evidence, in addition to the deposition of the Cherokee agent; but they are of such á character, however materia], as to have authorised their admission, authenticated as they were.

The reservation of Conaleskee has then, been regularly made. The terms of the treaty invested' him with a life estate in it, liable to be divested by his removal; and had he continued to occupy it until his death, it would have passed to his wife and his children, in the same manner that lands holden in fee simple does, on the death of the husband and father. The condition then, for a breach of 'which, the reservation was to revert to the United States, is a condition annexed to the life- estate of the reser-vee: that condition being broken, the land ipso facto reverts, and the conditional expectancies of the wife and children are gone forever.

Thus having determined the character of the estate of Conaleskee, we proceed to the examination of the remaining questions.

2. The estate of Conaleskee in his reservation was such, as to forbid him the right to make any disposition of it, incompatible with his own occupancy. It is true, that he may have leased a portion of it, to continue for a period not beyond his removal or his life, retaining to himself the possession of the residue. Bui lie was unauthorised to make any disposition of a part or the whole of it, either by lease or sale, either for an indefinite period, or a time certain, which would, or might continue after his removal. The lease to Eason, though it disposes of a part of the reservation only, is to continue for thirty years absolutely. The conveyance to Kennedy professes to convey a fee simple estate in the entire reservation, and forbids the occupancy by Conaleskee, of any portion of it, with a view to the pursuits of agriculture, which the- preamble to the treaty recites to have been the chief inducement to the provision for the heads of families, The lease to Eason, and the conveyance to Kennedy, were then, both unautho-rised by the interest of' Comileskoe in his reservation ; and in our opinion arc void, not only for this reason, but for their repugnance to the policy of the treaties oí eighteen hundred and seventeen and eighteen hundred and nineteen. Without entering into a disquisition upon this topic, we will content ourselves with a reference to the authorities.— Wheeler vs Russell —Armstrong vs TolerWilber vs Horv Belding vs Pitkin — Hunt vs Knickerbocker —Maybin vs Coulon —Steers vs Lashly —Waywell vs Reed —Howson vs HancochWilkerson vs Loudonsack.

3. It lias been already said, that by the removal of Conaleskee, his reservation become forfeited to the United States—a continuance in possession being the condition on which his right depended.— Where an estate is conveyed by the deed of an individual or corporation, subject to be defeated by a breach of a condition subsequent, if tbe condition is broken, it is necessary that the grantor, or person authorised, to take advantage of it, should either enter, or do some other act equally effectual, in order to divest the estate. But if an estate is granted by a legislative act, (of which character treaties are by the Constitution of the United States,) subject tc forfeiture by the happening of' some future event— if the event occur, no act is necessary to be done ir order- to revest the estate in the government; it re-vests immediately upon the happening of the contingency. This distinction was recognized by this Court, in the cases of the University of Alabama vs John J. Winston and Thomas W. Gilll vs William Taylor.

The act of May, eighteen hundred and thirty, gives to Conaleskee full authority to sell his reservation, upon the approval of a deed to be made by him, by the attorney for one of the districts of Alabama : Provided, he remove with his family, to his tribe west of the Mississippi, &c. The record furnishes ample proof to shew that Conaleskee has complied, with the, conditions imposed by the first proviso in the act. His deed to M’Anulty conforms entirely to the second proviso ; and the ancestor of the defendants in error, having a regular conveyance of title from M’Anulty and wife, his heirs are well entitled to their action, to be let into the possession.

Where one sells land to which he has no right, with warranty of title, and he afterwards acquires a good title, it passes instantly to his vendee, and he is estopped from denying that he had no right at the time of his sale. This rule only applies where the vendor had no valid title at' the time of executing the deed, and not where he is inhibited from selling, by the letter, spirit or policy of a legislative act.

Here, the deed of Conaleskee to Kennedy, and his lease to Eason, are both absolutely void — having been made not only without the authority of the treaties, but in direct contravention of their policy. Kennedy then, in virtue of his-deed of eighteen hundred and twenty-nine, was not remitted by the act of eighteen hundred and thirty, to an indefeasible estate in fee simple.

The first proviso in the act of eighteen hundred and thirty, clearly indicates, that in waiving a forfeiture, Congress contemplated a sale by Conaleskee of his reservation: in fact, it makes the removal of himself and family, without charge to the government, a condition on which he could claim the.benefit of the act. Why require the removal of himself and family, west of the Mississippi, if it was intended that he should continue the owner of the lands'? The statute was passed with a view to an immediate sale, the proceeds of which were to defray the expenses of himself and family, to their new home. — ■ This view of the act clearly negatives the idea that Conaleskee should hold for the benefit of any previous purchaser.

The view we have taken of this case shows that the lease from Conaleskee to Eason, and the deed from him to Kennedy, are both void, and pass no interest to the lessee and grantee. It thence follows, that the plaintiffs in error are justly chargeable with damages, equivalent to mesne profits, from the time, at least, that they had notice of a paramount title in another. And with the view to prove a demand, so as to fix a time from which they are liable to damages, we can discover no error, in the admission of the record of a suit commenced by the ancestor of the defendants in error, for the purpose of trying titles, and recovering damages to the land in controversy.

The other questions presented by the bill of exceptions, are so obviously embraced by those we have considered, that it is not deemed necessary, to examine them. Let the judgment be affirmed.

      Vat. 369.

       stewt,

      17Mass.R 256.

       2 Wheat. 258,

      8Johnson 444

       2 Caine’a R. 147.

       5 Johnson

       4 Dallas, 298.

      6T R, 61

      5 ib.

       8 ib, 575.

       M &S. 117—Poth. Ob. no, 43-55.

       5St.&P. 17.

       TOiblS}


author:
HOPKINS J.
      COLLIER, J.

text:
    DARWIN, next friend, &c., VS. THE TUSCUMBIA, COURTLAND AND DECATUR RAIL ROAD COMPANY.

      As to deficient judgments having the same effect.

    1. That judgment is rendered upon motion io quash the writ, when the. proper judgment would be, upon non-suit, — is no error.
    In error to the Circuit Court of Morgan.
    Margaret A. Peck and John W. Peck, by their next friend, Darwin, sued out a writ in trespass on the case, against “ Benjamin Sherrod, President, and David Hubbard, James B. Wallace, John Gregg’, Jack Shackleford, David S. Goodloe, James Elliott, Micajah Tarver, Branham Merrill, John L. McRea, Henry W. Rhodes, James T. Sykes, and James Fen-nell, directors, being the president and directors of the Tuscumbia, Courtland and Decatur Rail Road Company.”
    The cause of action was for the exposure of the plaintiff’s negro, while in the defendants’ service, to such hardships in inclement weather, as to cause his death : and the writ was returnable to September term, eighteen hundred and thirty-five.
    At the same term, was filed a declaration in the cause, against “ The Tuscumbia, Courtland and Decatur Rail Road Company.”
    At March term, eighteen hundred and thirty-six, the following entry appeared, to wit—
    “William Darwin, next, friend of Margaret A. Peck, and John W. Peck, infants, vs The Tuscumbffq Courtland and Decatur Rail Road Company. — This day came the plaintiffs, by their attorney, and the defendants, James Fennell, James T. Sykes, Henry W. Rhodes, and Benjamin Sherrod, by their attorney, and moved the Court to quash the writ in. this ease, which motion was opposed by the counsel for the plaintiff; ■ but the Court sustained the defendants' motion, and quashed the writ. It is, therefore, considered that the defendants go hence, and recover of the plaintiffs their costs herein expended”
    The plaintiffs took a writ of error, and here assigned as erronious the said judgment of the Court below, in quashing the writ.

      Me Clung, for plaintiff in error;

      S. Parsons, contra;
   HOPKINS J.

— In this case, the plaintiffs in error commenced their action by a writ, against Benjamin Sherrod, president, and H. W. Rhodes, James Fennell, James T. Sykes, and several other persons, as directors of the Tuscumbia, Courtland and Decatur Rail Road Company.

The endorsement on the writ contains a statement of a cause of action against the defendants to the action;

The declaration was filed against the Tuscumbkq Courtland and Decatur Rail Road Company,- and this is the corporate name of a company which has a charter from the State.

During the next term of the. Circuit Court of Morgan county, after that to which the writ was returnable, the four persons, whose names have been mentioned, appeared, by their attorney, and moved the Court to quash the writ. The motion was sustained, and the writ quashed. The following judgment was given by the Court — ■

“ It is, therefore, considered, that the defendants go hence, and recover of the plaintiffs their costs, herein expended.”

The writ is against persons, and the declaration against a corporation. The caséis governed by the same principle, which would apply, if the declaration were against different persons from those, who were sued by the writ. Instead of a motion to quash ■ the writ, the defendants ought to have asked for a judgment of non-suit against the plaintiffs, because there was no declaration against the defendants to the writ. The judgment which the Court rendered, terminated the suit against them, and allowed them costs against the plaintiffs. These consequences would have" folio wed a judgment of non-suit, to which the defendants to the writ were entitled. As the judgment which was given, has the same effect on the plaintiffs, that the proper judgment would have, they have no right to complain of what does them no injury.

It does not appear, from the record, that the Circuit Court acted upon the case in the declaration. As the corporation had not been brought into Court, by the service of process, and had never appeared, the case in the declaration was not one, in which the Court ought to have given a judgment for the plaintiffs.

Let the judgment be affirmed.

COLLIER, J.

— I concur in the conclusion of the opinion of the Court; but do not think the declaration was so entirely variant from the writ, as to have authorised a non-suit. If the parties who appear to have acknowledged service of the writ, can be considered to have been in Court at the return term, (on which it is not necessary to express an opinion,) the motion to quash at the trial term was too late. But as a plea in abatement for a variance between.the writ and declaration, would have been proper, and should have been sustained, I do not feel authorised to reverse the judgment on the motion to quash, and send the case back to have the same judgment rendered .on plea.


author: HOPKINS, J.

text:
    ROBERTS VS BEESON.

      As to service of process by improper officer — how taken advantage of.

      As to trespass by a sheriff.

      1. A plea, to an action against one for trespass in taking goods, —‘ that the goods werp taken as sheriff, by virtue of a fieri facias,’ estops the defendant afterwards from alleging that the writ was not served upon him by the proper officer.
    The want of authority in one to execute process, is no ground of motion to quash ; but must be taken advantage of by plea,
    ¡3. The selling by a sheriff under execution, of more of the goods of a defendant, than are sufficient to satisfy the process, — will render him liable, (to the extent of the additional goods sold,) to the action of trespass.
    In this case, Beeson brought his action of trespass, against Roberts, |n the Circuit Court of Blount, for wrongfully taking goods, the property of the plaintiff.
    To the action the defendant plead—
    First — Not guilty.
    Secondly — A special plea, justifying a sheriff of the county, under a writ of fieri facias, by virtue of which a levy had been' made, and which was the trespass complained of: to which plea there were replication and issue.
    Following the entry in the record of the pleas, there was set out a motion to quash — all entitled as of September term, eighteen hundred and thirty-five.
    At March term, eighteen hundred and thirty-six, the motion to quash was considered and overruled,— when the parties went to trial upon the issue joined, and a verdict and a judgment were rendered for the plaintiff.
    A bill of exceptions shewed, that the defendant proved, that he levied upon and sold the goods mentioned in the declaration, by virtue of .a writ of fieri facias, placed in his hands to be executed. It was also proved, that one Clifton, to whom the execution had been transferred, took from the defendant therein, (the plaintiff in this action,) a deed of trust, which secured the damages which the execution was issued to realize ; and that Clifton gave instructions to the sheriff to stay t'he execution, when the deed should be completed: that the deed was completed, and that the sheriff, to make the costs of the execution, levied upon the goods specified In the declaration, and sold them — collecting therefrom the sum of nine hundred and ninety dollars and twenty cents, being nine hundred and eight dollars and twenty and an half cents over and above the amount due, as costs upon the said execution.
    The defendant upon this proof, asked the Court to instruct the jury, — that if they believed that defendant levied upon and sold the goods under the aforesaid execution, the collection of an amount over and above that due upon the execution, would not subject the defendant to an action of trespass.
    The Court refused to give this charge, and the defendant took-his writ of error.
    The assignments of error were—
    First — The refusing of the Court to give the charge prayed.
    Second — The refusal to quash the writ.

      Ellis and Peck, for plaintiff in error.

      Me Clung and Robinson, contra.
   HOPKINS, J.

— The action in this case, was trespass de bonis asportatis, in favor of the defendant in error.

The plaintiff in error, who was the defendant in the suit, pleaded in bar that, as sheriff and in virtue of a writ of fieri facias against Beeson, which had been directed to him, he took and carried away the chattels described in the declaration. In the same term of the Circuit Court, during which he filed his plea, he made a motion to quash the writ that commenced the action. The motion -was afterwards overruled by the Court, and in doing so, it is alleged there was error.

It does not appear from the record, on what day of the term the plea was filed, or the motion made. But the plea is first in the record, and the legal presumption is, that it was filed before the motion was made. In the plea he admitted he was sheriff of the county, the coroner of which executed the writ against him. His plea estopped him from saying afterward, that the coroner was not the proper officer to execute the process. But the want of authority in a coroner to execute process, is no ground for.a motion to quash the writ. It is matter for a plea in abatement; and to such a plea, it would be a good replication that the sheriff was a party to the suit, or interested in the subject of it.

From a bill of exceptions, which is a part of the record, it appears, that the jfen facias, which was in the hands of the plaintiff in error, as sheriff, had been transferred by the plaintiff in it, to C. R. Clifton, who wrote to the sheriff that he had agreed with the defendant in the execution, to suspend it, upon condition that the defendant would execute a deed of trust, which had been prepared; and directed the sheriff, if the deed should be signed, proved, and recorded, to return the execution, “held up by order of C. R. Clifton,” to whom the judgment had been transferred, except the costs, the amount of which he was compelled to make.

After the sheriff received the instructions from Clifton, and the deed of trust had been executed,proved and recorded, he levied the writ of execution, and sold property of the defendant in error, for the sum of nine hundred and ninety dollars and twenty cents, which was nine hundred and eight dollars and twenty cents more than the amount of the costs.

Upon the trial of the cause, no question was made as to the right of Clifton to give the order, or as to the knowledge of the sheriff of the events in which he had been directed to make the costs only. He asked the Court to instruct the jury, if they believed, from the evidence, he levied and sold the property in virtue of the fieri facias, that his collecting more than the costs did not make him liable to the action of trespass. The Court refused to give the instruction, and the refusal has been assigned for error.

Against the right to the action of trespass in this case, several cases have been cited, in which it was adjudged, that trespass does not lie for taking an excessive distress. For an excessive distress, there was no remedy at common law; one was given by the statute of Marlbridge — and it was a special action oil the statute.† But if there were no right to distrain, an action of trespass lies at common law

Because, for an excessive distress, which was no injury at the common law, an action on the case on the statute of Marlbridge is necessary in England, it does not follow that for an act, that is an injury at the common law, the same remedy is proper.

The sheriff in this case does not rely for his justification on the ground that no chattel nearer the value of the costs could be found, than one which sold for the sum he collected. If he could not have found chattels of sufficient value, without seizing-one, the additional value of which was more than enough to satisfy the costs, he would have had a right to levy on it, and to retain the excess of the proceeds of the sale over the amount of the costs, until the defendant in the execution should demand it of him.

But the property on which he levied, consisted of many chattels of different values, and a sale of a few of them would have made the amount of the costs.

It has been decided, that trespass lies in favor of a defendant'in an execution, against a sheriff, who with a fieri facias for forty shillings, took and sold five oxen, each of the value of five pounds. For one, who has been detained by a sheriff in custody, on a capias ad satisfaciendum,, after he tendered to the sheriff the debt and costs, or shewed him a supersedeas of the judgment, trespass is the proper remedy.

In the case, that has been referred to, in which the sheriff took five distinct chattels, each of greater value than the sum he was required to make, he abused the process of the Court, and his act in taking’ four of them was illegal, and an immediate injury to the property of the defendant in the execution; In the other case, his conduct in the first instance was lawful; but he committed an act of trespass not warranted by the process, when he detained the defendants in prison, after they shewed a right to be discharged.

The owner of an execution has a right to control it, to the extent, at least, of his interest in it. In this case, the defendant in error gave a good consideration for the stay of the execution against him, and after the sheriff received the direction of Clifton, and knew that the deed of trust had been executed, proved and recorded, the act of taking more chattels, than such as would, be sufficient to' satisfy the costs, was so far as it related to the additional chattels, as illegal and immediately injurious to the property of Beeson, as if no execution had issued against him.

We think the Court did not err in refusing to give the instruction.

Let the judgment be affirmed.-

       mo^d', 8sí S85.

       52 Hen.3

       2Bla. com.3d bk 12 2 Strange,. 85i.

       6BacAbr. 559; IChit, pi. 146.

       Abr. 435.

       AbiTtós— 2i3.hlt' P1


author: HITCHCOCK, C. J.

text:
    M’GEHEE VS HILL.

      As to what accidents excuse the performance of a contract.

      As to averments in a declaration, and proof upon dependent agreements.

      Touching the construction of dependent agreements.

    1. In an action for the non-delivery of corn and fodder, upon an agreement to deliver, unavoidable accidents only excepted — it is no excuse, that the vendor did not, in consequence of unusual drouth during the cropping season, raise sufficient to supply the quantity agreed to be delivered.
    2. Where, upon an entire contract to deliver corn and fodder, the vendor delivers part thereof, the vendee is not bound to receive such part, where there is an understanding, that the vendor v/ill not deliver the balance.
    3. Whether the vendee has a right, from the circumstances, to understand that the vendor will not deliver the whole, under his contract, is, in such case, a fact, proper for the determination of the jury.
    4. In order to discharge a defendant from liability for a non delivery under such contract, on the ground that the plaintiff refused to receive a part of the goods agreed to be delivered, the jury should be satisfied that the defendant intended to comply fully with the agreement to deliver the whole.

      5. In an action for the non-delivery of goods, under an agreement, whereby one contracts to sell and deliver, and the other to pay on delivery — the vendee, in his declaration, must aver, and on the trial, prove, a readiness to pay on his part, whether the vendor be ready at the place to deliver, or not.
    6. That a credit which a vendee might obtain by the delivery of the goods, in such case, together with his other means, would enable him to raise the money to pay for them is not sufficient for a jury to consider as proof of a readiness, on the part of the vendee, to comply with his part of the contract. .

      In error to the Circuit Court of Montgomery.
    This was an action of trespass on the case, by Hill, upon the following'agreement, viz :
    “Alabama, Montgomery. Articles of agreement, entered into between William W.-Hill, of the one part, and Abner M’Gehee, of the other part, witness-eth, that said M’Gehee doth hereby obligate himself to deliver said Hill, at his stables, in the town of Montgomery, five thousand bushels of good merchantable corn, and fifty thousand weight of good fodder, as early next fall as the same will be dry enough to house — unavoidable accidents only excepted. Said Hill doth hereby obligate himself to pay said M’Gehee, on the delivery of said corn, fifty cents per bushel, and one dollar and twenty-five cents per hundred for said fodder.
    “ Witness, our hands and seals, this 27th day of January, 1833.
    “ Abner M’Gehee, Wm. W. Hill.”
    Upon this agreement, the plaintiff declared—

      “ For that, whereas the said defendant, at Montgomery, to wit, in the county aforesaid, on the twenty-seventh day of January, eighteen hundred and thirty-three, in consideration that the said plaintiff, at the special instance and request of the said defendant, would purchase of him, the said defendant, five thousand bushels of good merchantable corn, and fifty thousand weight of good fodder — he, the said defendant, then and there undertook, and faithfully promised to deliver to Mm, the said plaintiff, five thousand bushels of good merchantable corn, and fifty thousand weight of good fodder, as early in the autumn then next ensuing, as corn and fodder would be dry enough to house — unavoidable accidents only excepted — at the stable of the said plaintiff in the town of Montgomery — he, the said plaintiff, on such delivery, paying at the rate of fifty cents per bushel for corn, and one dollar and twenty-five cents per hundred weight, for fodder. And, the plaintiff, in fact, saith, that although he has been ready and willing to receive said corn and fodder during the whole autumn, and was then and there ready and willing to pay for the same, according to the said terms; yet, although no accident has prevented such delivery, on the part of the defendant to deliver the same, he has hitherto wholly neglected and refused.
    “ And, whereas, also, the said defendant, in consideration that the said.plaintiff, at his special instance and request, at Montgomery, to wit, in the county aforesaid, on the twenty-seventh day of January, A. D. eigteen hundred and thirty-three, would bargain for five thousand bushels of good merchantable corn, and fifty thousand weight of good fodder, to be delivered at the stables of the plaintiff, in the town of Montgomery, as'early in the fall of the year then next present, as the same would be dry enough to. house, by the said defendant, to be paid for on delivery at the said stables, at the rate of fifty cents per bushel, for said corn, and one dollar and twenty-' five cents per hundred weight for said fodder — una-r voidable accidents only excepted — he, the said defendant then and there agreed to sell the same to the said plaintiff. And, the said plaintiff says, that although he was ready and willing, during all of the said fall, to receive at his stables, the said corn and the said fodder, and, on such delivery, to pay for the same to the defendant, according to the terms aforesaid ; and although no accident has intervened, to prevent such delivery,” nevertheless, the said defendant had refused, &c.
    The common conclusion with a like count, containing an averment, that plaintiff, at his said stables in the town of Montgomery, was ready and willing to receive the said corn and the said fodder, and then and there able, ready, and willing to have paid the said price, for the same, &c.
    Plea, non-assumpsit and issue; and verdict for the plaintiff; and hill of exceptions and writ of error.
    On the trial, the plaintiff introduced the agreement in evidence; and as the bill of exceptions styled it, “ other proof to establish his right of recovery.” ' •
    The defendant introduced testimony to shew, that by an unusual drouth, which happened during the cropping season, his crop fell short; and that he did not raise corn and fodder sufficient to supply his plantation, and to fill said contract. He also proved that he canned one load of fodder and tendered it to the plaintiff, at the same time remarking to him, that he had made a had crop, and had not raised corn and fodder enough to fill the contract; that he would, however, comply as far as be could, and desired the plaintiff to build or prepare cribs to receive it; that he wished to haul it, while the roads were in good order.
    It was also in proof, that defendant did not say that he would not deliver the whole of the corn and fodder; but that Hill said, “ if he could not get the whole, he did not want any.” But no testimony was adduced that the plaintiff had prepared a place to receive the corn and fodder ; or that plaintiff ever notified defendant of his readiness to receive it, or comply with his part of the contract.
    Upon this state of the evidence, the defendant requested the presiding judge to charge the jury, that if they believed from the testimony, that the understanding of the parties was, that the term unavoidable accidents, as used in said contract, was meant to embrace a failure to make a crop, by reason of severe drouths; or in case the crop had been consumed accidentally in the field, by fire, — then if such was the intention, and such the fact, in that case the .defendant was excused.
    This the judge refused, and instructed the jury, that no sensible meaning could be applied to the said terms, as used in said instrument; and such accidents would not excuse the defendant, if they had occurred : or any other, than the acts of God, or of the enemies of the country.
    The Court further charged, that the contract in this case was indivisible; and that the plaintiff was not bouud to receive any part of the corn and fodder, unless the whole was delivered ; and further, that he was not bound to pay for any, until the whole was delivered: that the plaintiff was not bound to prove that he had cribs suitable for the reception of the com and fodder.
    There being some contrariety of proof as to the plaintiff’s solvency, — the Court also charged, that if the jury, from the testimony, believed that the plain-tiff, from the credit that the corn and fodder, when delivered, would have given him, and from his other means' and resources, could have raised the money, and would have been prepared to pay, — then that was sufficient evidence of readiness on his part.
    All which was excepted to.

      Thorington, for plaintiff in error.

      Gordon and Goldthwaithe, contra.
   HITCHCOCK, C. J.

— Several of the questions presented by this record, depend upon the construction of the articles of agreement sued upon.

By them, the defendant below bound himself “ to deliver to the plaintiff, at his stable, in Montgomery, 5000 bushels of corn, and 50,000 lbs. of fodder, as early next fall as the same will be dry enough to house, unavoidable accidents only excepted, and the plaintiff bound himself, on the delivery of said corn, to pay 50 cents per bushel, and $1 25 per hundred for fodder.”

1. One of the defences, for the non-delivery of the corn and fodder, and which brings up the question of construction, was, that owing to an unusual drought during the cropping season, his crop fell short, so that he did not raise sufficient to supply his own plantation, and to fill his contract with the plaintiff.

We think this defence not within the terms of the exception. There is no allusion in the contract to the source whence the defendant was to derive his corn and fodder. It was tobe delivered at all events, and the “ unavoidable accidents,” can only relate to the time when it should be delivered, which was to be as early in the fall as the corn and fodder were dry enough to house. This must be -the extent of the exception, or it must be rejected, as repugnant to the contract.

2. On the second point, we are of the opinion that the contract was entire, and the plaintiff was not bound to receive a part and not the whole, and if the plaintiff had a right to understand, when the fodder was tendered, from what the defendant then said, that he did not intend to comply with the contract fully, he was not bound to receive any part.This was a fact, proper to' be left to a jury, and in order to discharge the defendant, the jury should be satisfied that the defendant did intend to comply fully with the contract.

There was, therefore, no error in the two first instructions given-by the Court.

3. But in the third instruction there was error.

It is a well settled rule of law, that when a contract is dependent, as where one agrees to sell and deliver, and the other agrees to pay on delivery, in an action for non-delivery, it is necessary for the plaintiff to aver and prove a readiness to pay on his part, whether the other party was ready at the place t° deliver or not. The seller ought not to be compelled to part with his property, without receiving the consideration, nor the purchaser to part with his money, without an equivalent in return. Hence, in such cases, if either vendor or vendee, wish to compel the other to fulfil his contract, he must make his part of the agreement precedent, and cannot proceed against the other, without an actual performance of the agreement, on his part, or a readiness and ability; and an averment to. that effect, is always made in the declaration containing dependent undertakings, and that averment must he supported by proof

That the contract now before the Court, is of this description, cannot admit of a doubt- The instruc tion of the Court, therefore, that if the jury believed, that the credit which the corn and fodder, when delivered, might give, together with the other means of the plaintiff, would have enabled him to raise the money, so as to have been prepared to pay, Would be sufficient evidence of readiness, was erronious.

This principle was recognized by this Court in the case of Anderson vs Garthe

There were peculiar circumstances in that case. Near three fourths of the crop, which had been contracted to be delivered, was paid for before the crop was ready: the time when the crop would be ready, was exclusively within the knowledge of the defendant, and payment didnot become due until the entire crop should be delivered. These circumstances, with others, mentioned by the Court, relieved Garthe from the application of the above principles in that case.

Let the judgment be reversed, and the cause remanded.

       2iÍ-JiEast‘ 203

       465Peters’

       -l^E^io! j’ ,320 ~5 3 ib-307•

       i60tewa' *


text:
    RICKS VS HALL

      Touching appeals or writs of error from the Commis» sioners Court.

    1. No appeal or writ of error lies to the Circuit Court, from a decision of the Court of commissioners of revenue and roads,on the establishment of a ferry.
    In this case an application was made by the plaintiff in error, to the judge of the County Court of Lowndes county, and the commisioners of revenue and roads, for a license to establish a ferry.— The application was resisted by Hall, but was eventually granted by the order of the'Court.
    Upon this order the clerk of -the County Court issued a a writ of error, returnable to the. Circuit Court of Lowndes county, in which Court, the judgment of the Commissioners Court was reversed, and the cause remanded. From this decision, the plaintiff in error brought the case into this Court, and assigned, as cause for reversal—
    First — That the Circuit Court had not jurisdiction .of the case, in the manner in which the same was presented.
    Secondly — That a writ of error did not lie upon a decision of the Commissioners Court, to the Circuit •Court.
    Thirdly — That there was no error in the decision of the Court, in establishing a ferry.

      Thorington, for the plaintiff in error.

      Gordon & G-oldthwaite, contra.
   HOPKINS, J.

— Upon the application of the plaintiff in error, to the Court of the Judge of the County Court of Lowndes county, and the Commissioners of the revenue and roads of that county, a license was granted by the Court to him to establish a public ferry across the Alabama river, near Vernon, in Autauga county.

At the same term, the Court acted upon and rejected the application of the defendant in error, for a license to establish a ferry at the same place.

The evidence on which the Court acted, was made a part of the record of the case by a bill of exceptions, which was taken by Hall, who sued out a writ of error, returnable into the Circuit Court of Lowndes county, by which Court, the judgment which granted a license to Ricks was reversed and the cause remanded.

The judgment of the Circuit Court has been brought for review into this Court by a writ of error, which was sued out by Ricks.

One of the assignments of error, makes it necessary to inquire, whether the Circuit Court had jurisdiction of the case. The jurisdiction which is expressly conferred by the Constitution on the Circuit Courts, is original. Any appellate jurisdiction, exercised by them, must be given by statute, and taken in the mode, which the statute conferring it, prescribes.

The writ of error that was returned into the Cir-D cuit Court was issued by the Clerk of the County Court of Lowndes county. The Clerk is not autho-rised, by any statute, to issue such a writ, unless the judgment alleged to be erroneous, had been rendered by the County Court, or Orphans’ Court of the county. The judgment in this case, was given by neither of these Courts. The Court winch gave the judgment was organised under a statute, which enacts, that any two of the four commissioners of revenue and roads, together with the Judge of the County Court, shall constitute a Court, to levy the County tax, to lay out and discontinue roads, and to exercise all the power in relation to roads, bridges, highways, ferries, and causeways, which before the passage of the act belonged,to the Orphans’ or County Court. Should a judge of a County Court fail to meet the commissioners on the second day of a regular term of a Court, established by the act, the commissioners, Qr a majority of them, are authorised to exercise all the p0Wer of the Court

The Court, therefore, which granted the license in this case, is separate and distinct from the County or Orphans’ Court of Lowndes county. A writ of error, to be issued by the Clerk, or an appeal, lies from any judgment of a County or Orphans’ Court, to the Circuit Court of the proper county; but no legislative provision has been made for a Clerk to issue one on a judgment of a Court composed of commissioners of revenue and roads, or of them, and a Judge of a County Court.

We think the Circuit Court erred in taking iuris- . # ° J diction of the case. The writ of error returned into 'that Court, ought to have been dismissed.

Let the judgment be reversed.

      Aik.D86,

      4^2Daii^ t01 “No2. Granchl26 2Wheaton 409.’


text:
    DUNCAN VS THE TOMBECKBEE BANK.

      As to motions against a debtor to the Bank — Certificate that the debt is bona fide the property of the Bank.

      As to service of process apon late copartners.

      1. To sustain a judgment of the Tombeckbee Bank, rendered against a debtor on motion, the record must show, that the certificate of the president of the Bank, that the debt was the property thereof, was produced.
    2. Filing a declaration in such a case, wi-11 not so alter the nature of the proceeding, as to render the certificate unnecessary.
    4. Service of process upon one co-partner of a firm, after a dissolution, will not authorise judgment against all the co-partners.
    This was a notice, issued by the president of the Tombeckee Bank, to Stephen.Chandler, Joseph B. Earle, John Duncan and Edward B. Byrd, lately merchants in company, trading under the firm and style of Edward R. Byrd & Co.; and apprising them, that at the ensuing Spring term, eighteen hundred and twenty-seven of the Circuit Court of Washington county, the said Bank would move for judgment and award of execution against them, for the amount of a promissory note, made by the said parties.
    This notice was served on Chandler and Duncan; and at April term, eighteen hundred and thirty, the defendant, Earle, made himself a 'party, and the cause was, by consent, transferred to the Circuit Court of Mobile. At the Spring term of Mobile Circuit Court, eighteen hundred and thirty, the plaintiffs filed a declaration in the cause, and upon the pleas of non-assumpsit, and payment, tender, and accord and satisfaction, filed by Chandler and Duncan, verdict and judgment were had against all the defendants — being rendered as to Earle and Byrd, upon nil dicit.

    It was assigned upon writ of error in this Court—
    First — That the Court below erred in rendering judgment on verdict against the defendants, Chandler and Duncan, before the other defendants were disposed of.
    Secondly — 'That the Court erred in rendering judgment against defendants, Earle and Byrd, who were never before the Court.
    Thirdly — That the Court erred, in rendering judgment against the defendants, Byrd and Earle, without its being shown that the pre-requisites required by the statute, bad been complied with; because the defendants, if in Court at all, were so, only under the notice.

      Gordon & Goldthwaite, for plaintiff in error.

      Stewart & Thornton, contra.
   COLLIER, J.

— The defendants in error, issued a notice; under the seal of the corporation, directed to Stephen Chandler and Joseph B. Earle, John Duncan and Edward R. Byrd, “ lately merchants in company, under the firm and style of Edward R. Byrd & Co.,” informing them, that at the term of the Circuit Court of Washington, next thereafter to be hold-en, the Bank, hyits attorney, would move for judgment and award of execution, on their promissory note, payable to the defendants in error, &c. The notice was executed on Chandler and Duncan alone, and being continued until the spring term of eighteen hundred and thirty, Earle came in and made himself a party, and by consent of himself, -Chandler and Duncan, and the defendants in error, the cause was transferred to the Circuit Court of Mobile for trial,

After which, the defendants in error, filed a declara-^ tion, and an issue was made up, Chandler and Duncan alone pleading — a verdict was found against them, and judgment by ml elicit, was rendered against Byrd and Earle.

It is insisted, that the judgment is erroneous-^-

First — Because it does not legally appear, that the defendants in error were the proprietors of the note sued on.

Second — Because a judgment was rendered against Byrd, on whom process was never served, and who never made himself a party.

First — In Logwood, et al. vs The President, &c. of the Huntsville Bank — it was determined, that to sustain a judgment recovered by the Bank on motion, the record must show the certificate of the President, as required by the charter. The requisition of the charter of the Tombeckbee Bank, we find to be in all respects, similar to that of the Huntsville Bank, and the record furnishes no intimation that the certificate of the President of the Bank, shewing the defendants in error to have been the proprietors of the promissory notes, was produced in the Circuit Court. But to relieve the case from the influence of this objection, it is insisted that here the proceeding was not by motion only, that a declaration was filed and pleadings made up, as in ordinary cases. The case must have come into Court by motion, founded on the notice. The declaration must be considered an act of snpurerogation, and it was as regular to have pleaded to the notice as the declaration, the former subserving the purpose of the latter, and the writ also. — Lyon vs The Bank of Alabama

Second — The second point brings up the question,whether the service of process on one partner in a late firm, is equivalent in law to service on all the members of the concern, The affirmative of this inquiry is attempted to be sustained, by reference to a statute of this State, which is in these words— “When a writ shall be issued against all the partners of any firm, service of the same on any one of them, shall be deemed equivalent to a service on all; and the plaintiff may file his declaration, and proceed to judgment as if the said writ had been served on each defendant.” The language of this provision clearly confines it to continuing partnerships.— The words “partners” and “firm,” unless preceded or followed by some expression indicating a different meaning, ex vi termini, imply a present continuing connection, and do not relate to one, which is past and dissolved.

Such is the natural interpretation of the language of the statute, and though it be remedial in its character, yet, as in its consequences, it may often affect injuriously, those who are not served with process, it cannot be extended by construction, beyond the literal import of its terms.

So much of the opinion of this Court in the case of Click & Morgan vs Click — as is opposed to this opinion, is overruled. The conclusion of the Court in that case, with all deference, we can not think, results from the reasoning employed.

The notice and declaration describe the connection between Duncan and Byrd, as one lately existing, which obviously implies that it was then at an end. Byrd, then, never having been served with process, or appeared, was not amenable to the judgment of the Circuit Court.

The judgment is, therefore, reversed, and the cause remanded.

HITCHCOCK, C. J. — Not sitting.

      Aia.R,2&

       442tewai:t

      A,a-R*79