text:
    S. and W. BROWN versus JONES.
    QUESTIONS IN THIS CASE,

      As to the verification of a plea.

      Relative to a material alteration in a promissory note.

    1. A plea, by two defendants, verified by the oath of one, is a sufficient compliance with the statute, requiring a denial of the execution of any writing, to be by plea, supported by affidavit.
    2. That matter is pleaded specially, which may be available under the general issue, is not cause of demurrer.
    .3. It is a good plea to an action upon a promissory note, that the words “ with interest from the date,’5 have been added after its execution, without the maker’s knowledge or consent.
    Jones declared in assumpsit against the plaintiffs in error, in Tuskaloosa County Court, upon a promissory note. The defendants plead a special plea, and the general issue. The special plea set out, that the said note, after the making thereof, and without the knowledge or consent of the said defendants, had been altered or changed, in this, to-wit, by adding to the said note, the words, “ with interest from the date.” To this plea, there was a demurrer, which being sustained, judgment on verdict was rendered in 'favor of the plaintiff, on the general issue.

      Ellis & Peck for the plaintiff in error — Nooe, contra.

   Collier, J.

The plaintiffs in error, to an action of assumpsit, in the County Court' of Tuskaloosa, pleaded — first, that, the promissory note, on which the action is brought, after the making of the same, was altered, without their knowledge or consent, bj adding thereto, the words, “ with interest from the date.” Second — the general issue: both of which pleas-were verified by the affidavit of Samuel Brown.

The defendant in error demurred to the first plea; and his demurrer was sustained.

The correctness of this decision is the only point presented by the assignment of errors; and this involves these enquiries—

1st. Was the plea well pleaded.
2d. Does it disclose available matter of defence.

1. It is objected, in as much as both defendants below, join in their pleas, that they should be verified by both, and that the oath of one of them is an insufficient verification.

The provision of the statute, under which these pleas are pleaded, declares, that any writing, (the-foundation of an action,) whether the same be under seal or not, shall be received as evidence of the debt or duty, for which it is given; and that it shall not be lawful to deny its execution, unless by plea, supported by the affidavit of the party pleading it.

A literal interpretation of the statute, would doubtless, .render necessary the affidavit of .all parties uniting in a plea, to deny the execution of á promissory note ; yet we can not believe, that either its intention or its language, require us thus to interpretit.

At common law, the pleas of non est factum, nil debet, or non assumpsit, according to the dignity of the writing sued on, and character of the action, put its execution in issue, and that too without affidavit of the truth of the plea. This rule of the common law, was found to be, here, productive of great inconvenience, and not unfrequently, of injustice. A plaintiff was obliged to continue his cause, to procure testimony to prove the execution of the writing sued on —a fact controverted only by plea: his counsel from an inability to 'continue, was often forced to a non-suit. To .remedy such a state of things as this, the statute was enacted,- requiring the plea to be accompanied by an affidavit: this affidavit is required, that it may appear prima facie, that the fact of execution is not causelessly denied. Arid this being quite as apparent where the plea is verified by one, as by all the defendants pleading it — we are satisfied that the verification of the plea is in compliance with the spirit of the statute.

It is true, that the defence proposed to be brought in under the first plea, was available under the second ; yet it does not follow, that for this reason, the demurrer was rightfully sustained. It is well settled, that a defendant may plead non est factum arid escrow, together ; though, the evidence allowable under the latter, may be given under the former. And this Court, in the case of Tindall vs. Bright, determined that a party may plead non est factum generally, and a special plea, that the name and seal of one of the obligors have been cancelled without his consent.

2. By the law, as it once stood, any alteration of a deed, even in an immaterial point, (if made by the obligee himself,) avoided it. But the rule is now otherwise. An immaterial alteration by the obligee, or a material change by a stranger, has no prejudicial effect upon the obligee’s rights; unless he has adopted either impliedly or expressly, such act of the stranger as his own.

Without any particular review of the authorities, it is enough to say, that an alteration of a • deed, in order to its avoidance, must be made in a material point, by the obligee himself, or some one interested, or else be'adopted by him, if made by a stranger.

The same rule which relates to deeds, is also applicable to promissory notes, and other writings.

Believing, then, the alteration to be material, and the plea to be good, as well as-to the manner of pleading it, as in the matter it discloses — we are of opinion that the judgment must be reversed, and the cause? remanded.

       Ala. Rep, 103.

       2 Starkie, 476.

       1 Gallison 69; 5Taun 707; IB. & B, 426 ; 4 Term R 320; 15 East, 29; 1Moorell4 5 B & C 269 8 D & R22 3 B & C 428 5 D & R 433 6 East 309; 5 M & S 223 12 East 471 15 East 415


source: Caselaw Access Project

author: Hopkins, J.

license: Public Domain

text:
    MIDDLETON versus HOLMES.
    QUESTIONS II? THIS CASE.

      Relative to averments in a declaration in trespass, for hilling a slave.

      Relative to pleas, in such action.

      1. In an action of trespass, for killing a slave, it is necessary to aver, in the declaration, that the party killing, has been tried under an indictment fo.r the felony. •
    2. It is no defence in an action of trespass, for killing a slave, that the slave fled from the party killing, who, as a constable, was, by warrant, endeavoring to arrest the slave, on a charge' of having committed misdemeanors.
    This was an action of trespass, for killing a slave, prosecuted by Holmes, in Pickens Circuit Court, against the plaintiff in error. The declaration was-in the usual form; and contained no averment, that the defendant had been tried by the State, for the of-fence.
    To the action, the defendant plead several pleas,to one of which the plaintiff demurred. The de~-fence relied on, in this plea, was, that the defendant, being a constable, had received a warrant from a justice of the peace, commanding him to arrest the slave, on a charge of being at'large, without a pass; with wearing weapons; and-with way-laying the path of one Mise. That, in proceeding to arrest the slave, under these warrants, he had fled ; and that the killing had been perpetrated, under these circumstances.
    The Court sustained the-demurrer, to this plea; but, instructed the jury, that the defendant could not be permitted to avail himself of the principle of justification,' because there was no.plea of justification; and because there was no proof, that the slave contemplated any act of violence toward the defendant i and the jury found for the plaintiff.
    Exceptions, and writ of error, to this Court.

      Wilson, for the plaintiff in error; Ellis & Peck} contra.

   Hopkins, J.

This was an action of trespass, which was brought against the plaintiff in error, by Thomas Holmes, for killing his slave. After a de murrer to the pleas of the defendant to the action, had been sustained by the Court, a final judgment was rendered upon a verdict on the general issue, against him. That the Court erred, in the judgment on demurrer, is one of the errors which have been assigned.

It is pn established rule, that, upon a demurrer to a defective plea, the Court ought to give judgment against the plaintiff, if his declaration be defective in substance. All the facts necessary for the maintenance of the action, should be stated in the declaration.

The trespass complained of, consisted in the slaying of a human being — an act, which is a felony, in legal presumption; and the excellent policy of the law, prevents the person injured, by the trespass, from seeking his own redress, till it shall be ascertained and determined, by the proper tribunal, what the justice of the State, requires of the accused, for the the deed. If the law were otherwise, persons injured, would often obtain compensation, for such trespasses, upon an agreement not to complain of the public wrong; and reparation would be made for the civil injury, to escape the justice of the country.

The trespass was merged in the felony, till the party should be tried for it. After a trial, for the felony, whether it terminated in acquittal or conviction, an action could be maintained against the der fendant, for the trespass.

-No one doubts, but it ought to be stated, in the’ declaration, as it is in the one in this case, that the slave was the property of the plaintiff. If this statement were omitted, it might as well be inferred, that the person slain, was a freeman, as that he was a slave. The legal presumption would be, that he ■was free; the effect of which, upon a demurrer, would entitle the defendant to a judgment, on the ground, that the plaintiff showed no right to the action. As the right of the plaintiff to the action arises from the satisfaction of the demand of the State, which can be had in a trial, only, the fact that makes the defendant liable to him, is material, for the maintenance of the action, and ought to have been averred in the declaration. Had the acquittal of the defendant been stated in the declaration, he would have had a light to prove, as a defence, either under a special plea, or the general issue, that it was obtained by collusion with the plaintiff.

The declaration, in this case, gave him no notice, that it might become necessary to prove the fact, if it existed, and to prepare to do so. If the defendant has not been tried for the felony, and should never be, he will never be liable to the plaintiff. If, from the facts stated in a declaration, two intendments can be made, the one which is against the plaintiff, must be made.

If, therefore, it could, as fairly be inferred, from the facts in the declaration, that' the defendant had been acquitted or convicted of the felony, as that neither event had happened, the judgment upon the demurrer should have been for him, on the last principle, which we have stated. The defendant ought not to have been required to try an issue, involving facts, that he did not wish to deny, and upon the trial of it, to have been affected by evidence of other facts, which the issue gave him no notice, would be proved.

We have been referred tü a case in 2nd Hay wood, 108, in which it was decided, that, in an action of trespass, for killing a slave, commenced before the trial of the indictment for the felony, it might be proved, the defendant had been acquitted ; and that, upon such proof, the plaintiff would be entitled to recover. It must be inferred from the decision, that the Court, which made it, would not have- required the averment of the acquittal, in the declaration — as it could not have been known, when that suit was commenced, whether acquittal or conviction, would be the consequence of the indictment. If the evidence be competent, under such circumstances, the plaintiff would be entitled to. continue his own cause, until after the termination of the' prosecution for the- of-fence, if he could show, that he had used due diligence, in attending to the latter.

But we can not yield the conviction of our judgment, to an opinion not sustained by any authority, and supported by no reason. No principle is better settled, than that, if it appear, from the declaration, that the cause of action accrued after the commencement of the suit, the defect will be. fatal, even after verdict. Evidence, which shows that the cause of action arose after the commencement of the suit, is inadmissible.

The rule, in relation to declarations upon ágree-ments, within the statute of frauds, which has been relied on, to show the sufficiency of the declaration, in this case, has no application. In such cases, it is not necessary to allege, that the agreement was in writing — that being matter of evidence, only; but, it is necessary to allege all the parts of such an agreement, necessary to give a right of action "upon it; and if it contain a condition precedent, to be performed by the plaintiff or a third person, an averment of the performance of that, would be necessary. The question of the competency of evidence, to prove the facts in issue, is distinct from that of what allegations are material.

The pleas, to which the demurrer was taken, contain no justification for killing the slave. The warrants, upon which the plaintiff in error arrested the slave, contain no charge of a felony at common law, or under any statute^ against him. — They charge him with misdemeanors, merely: The warrants were copied in the pleas — form part' of them, and gave Middleton the only authority he showed, to make the arrest. ' He was not justifiable in killing the slave, who was flying from him, and whose only object was to escape.

We think there is no error in the instructions the Circuit Court; or in the refusal to give whic^h were asked.

Let the judgment be reversed, and the cause re* manded.

Collier, X, having presided below, did not sit.

       6Com. Di 54; Tit. Pl. C 22, 65; 34.

       12 East. 409; Ala. R. 8; 1 Stew 70

       6 Com. Di Tit. Plead. 54 (C.22)

       Johnson’s Reports vol. 3 p 42 — vol. 10, ib. p 119 — Johnson’s Cases, vol. 2 p 52-1 Serg’t & Rawlo, 202 — 2 Binney, 287.

       Arch.Cr. P1334; Fos.271; 1 Hale, 481; 2 ib 117.


author: Collier, J.

text:
    ADM’RS OF WIGGINS versus ADM’R OF PRYOR.
    QUESTIONS IN THIS CASE.

      Upon the mode of taking the deposition of absent witnesses.

      The competency of an administrator to testify as a witness.

      As to parol evidence of a receipt.

      1. In taking the testimony of a witness, residing out of the State, it is not essential to file interrogatories in the clerk’s office, previous to the issuance of a commission.
    2. A party, seeking such testimony, has his election either to file interrogatories; or to propound questions when the witness goes before the commissioners.

      3. It is no objection to the reading of the deposition of a witness, residing out of the 'State, regularly taken, that such witness has not signed it.
    4. In such case the certificate of the commissioners, that it was signed, it not appearing to be so, is not sufficient, apart from other circumstances of suspicion, to warrant its rejection as evidence.

      3. In an action brought by the administrators of A, against the administrator of B, for money received by the latter of the estate of C ; the administrator of C is competent, in respect of interest, to prove the payment by him of the money to B.
    6. In such case, it was held, that parol proof of the receipt given by B, for the money so received from C’s adm’r might be made by him, without the production of the receipt.
    William Pryor, administrator of the estate of Asa Pryor, declared against Wiggins’ administrators, in Madison Circuit Court, in the action of assumpsit, for money had and received, by the defendant’s intestate, to and for the use of the intestate of the plaintiff. The evidence offered to sustain the plaintiffs action, was the deposition of a non-resident witness, who vi’as the representative of one Jordan. This witness proved that the intestate of the defendants, presented to him, the witness, as' the administrator of Jordan, a note of hand, executed by Jordan, in favor of one Cabiness, and by the latter assigned to Pryor, the intestate of the plaintiff, and v received payment thereof; and that said Wiggins, the intestate, observed, at the tune of so receiving the amount of the note, that Pryor had placed it with him for collection. That Wiggins then executed a receipt for the amount of the note — specifying that it had been placed in his possession, for collection. On this testimony, a verdict and judgment were rendered in favor of the plaintiff, and a writ of error,' (on bill of exceptions,) taken by the defendants to this Court»

      Stewart and Thornton for the plaintiffs in error; Robinson, contra.

   Collier, J.

This was an action of assumpsit, for money had and received, in the Circuit Court of Madison.

On the trial, the defendant in error, (who was plaintiff below) offered in evidence, the deposition of John H. Thompson, taken in the State of Missouri, under a commissioner, and notice for that purpose. The deposition proved, that the witness, as the administrator of Solomon Jordan, paid to Wiggins, the intestate of the plaintiff in error, the amount of a note, “ executed by Jordan to a Mr. Cabiness, for sixty dollars, dated, to the best of his recollection, in June, 1826; by Mr. Cabiness said note was assigned to Asa Pryor: said Wiggins stated, when he presented the note, that Pryor had put it in his hands, requesting him to make collection of Thompson as soon as possible.” The witness further deposed, that he paid to Wiggins, the principal and interest due on the note 5 and remarked, that he would take the note to Pryor, that it might be receipted in full, and gave his own receipt for the monej' j in which it is expressed that Pryor had put the note in his hands for collection.

To the reading of the deposition, the counsel of the plaintiff in error objected — r

1st. Because it was irregularly taken.
2d. Because the witness was incompetent, by reason of interest.
3d. Because the receipt mentioned in the deposition, as having been given by Wiggins,, should have been produced, or its absence accounted for.

All which were overruled, and the deposition was read to the jury.

The assignment of errors present for revision, the three points of objection taken to the deposition in the Court below.

1. In respect to the first, it has been repeatedly decided in this Court, that it is not an indispensable requisite to the regularity of a deposition taken in a suit at law,, to exhibit interrogatories in the clerk’s office, previous to the issuance of a commission; but the party has his election to pursue this course, or else propound his questions when the witness comes before the commissioners for examination. There is no statute or rule of practice, which requires a deposition to be subscribed by the witness : the commissioners are directed, under,their hands and seals, to certify it. The fact, that the commissioners has certified to the signature of the witness to the deposition, when in truth it has never been signed, apart from other circumstances of suspicion, that the paper offered is spurious, should not have induced its rejection ; the more especially if the deposition and certificate were written on the same piece of paper, or so attached as to leave no doubt of the genuineness of the.forrner.

2. The interest which disqualifies á witness, must be some legal, certain, and immediate interest, however minute, in the result of the cause, or in the record — as an instrument of evidence. By examining this test, we discover that the interest of Thompson, is not such, as can render him an incompetent witness. It is entirely immaterial to him, so far as his legal rights are concerned, bow the cause between these parties may eventuate: the record cannot be evidence to charge him personally, or as the representative of the estate of his intestate. Besides, if it could be evidence of a demand against the estate of his intestate, he could not be prejudiced. It must be unimportant to an administrator, whether he disposes of the estate of his intestate, in the payment of debts, or passes it to the distributees, if he has been honest ir> the discharge of his trust.

3. It is a general rule, that the best evidence a fact is susceptible of, must be produced, if in existence, and its production be practicable. The reason of the rule is founded in this idea — if there be-better evidence extant than that offered, the inference is fair, that if it were produced, it would make against the party offering such secondary proof: hence the requisition that the best attainable evidence must be offered. . Written evidence is esteemed, a higher grade of testimony than that which exists merely in the memory of witnesses, and in general, supersedes it. To illustrate the proposition, parol proof of the conveyance of property, where there is written evidence of the fact, would not be evidence in favor of a purchaser against his vendor, unless the non-production of the writing was satisfactorily accounted for. x

Though the generahrule be as we have stated, it can not be laid down as a universal rule, that where written evidence of a fact exists, all parol evidence of the same fact must be excluded. In many cases, it is competent for a witness to depose to a fact, though proof of the same fact might be shewn by a writing. If it become necessary to prove the ownership of an article of personal property in a particular individual, it is competent for a witness to state that that individual informed him he was the owner.— Saying nothing of any writing evidencing his ownership; or in a case where an alh.ged vendor was seeking to recover, it might be shewn that he admitted the sale, though there was evidence in existence to’prove the conveyance.

In Herbert vs. Cohen, it was said by Lord Ellen-borougk, that the existence of a receipt did not exclude parol evidence, of the payment of money. And the same point was adjudged in the case of Jacob v. Lindsay.

In Hamlins admr's vs. Atkinson, surv. &c. it was determined, that though a receipt for money was given it was competent to prove the payment by parol testimony, if the witness can speak'to the fact, without reference to a, knowledge derived from having seen the.receipt itself;. but if he did not know of the payment, and only spoke from having seen the receipt, the paper as the best evidence of a fact, of which it alone had imparted information, must be produced.

In the case of Keene vs. Meade, it appeared that the party himself had made an entry in the rough cash booh of the lender of money advanced to him: it was objected on tho trial that the book itself should be produced, and patol evidence of. the loan, was not admissible. The Court decided that parol evidence was allowable to prove ,the loan, notwithstanding the written entry of the advance ; and say that no objection could be made to it on the ground of its repugnance to the written entry. Nor does the non-production of the written evidence afford an inference# that had it been produced, it would have .operated a prejudice to the plaintiff; nor can its non-production prejudice the plaintiff. These observations apply in full force to the present case.

The witness then, having derived his knowledge, not from the receipt itself, but from the fact of having paid the money, and hearing Wiggins declare that Pryor.had placed the note in his hands to collect; and the receipt being given by Wiggins, not so much that it might afford evidence against himself, as in favor of Thompson, in the settlement of his administration, reason and law' both concur, in determining its production to have been unnecessary.

The judgment is therefore affirmed.

Hopkins, J. not sitting — having been of counsel below.

       2 Starkie's Ev. 744.

       4 Esp. R, 213

       1 East 460 2Camp 315 2B&B 288

       6 Rand 574

       3 Peters 7


author: Hitchcock, C. J.

text:
    ROYSTER versus WATKINS et al.
    QUESTION IN THIS CASE.

      Principles, upon which Chancery will enjoin a judgment at law.

      l.A Court of Chancery will not relieve against a judgment at law, on the ground of usury, although well established, where it appears, that the facts were available to the complainant, before the rendition of the judgment at law.
    In this oase, Royster filed a bill in Chancery, in Madison Circuit Court, for the purpose of enjoining the defendants from .proceeding to enforce a judgment obtained against him, at law.
    The facts were, that, in 1829, Royster, being in pecuniary embarrassment, applied to Watkins, to obtain' the loan of one thousand dollars; for which, for twelve .months, induced by his necessities, he agreed to give fifteen hundred dollars. That, to effect the purpose of the loan, the complainant gave his note, for fifteen hundred dollars, to one Meux, due at "twelve months; and which Meux was to sell to Watkins, or to a third person, designated by him.— That Watkins directed Meux to apply to one Irby, who would purchase the note, at one thousand dollars; all of which was effected, by the payment of the money, by Irby, who, to disqualify Meux from giving evidence, took his indorsement on the note.— That, some time after this note became due and payable, 'Watkins applied to the complainant, to take up the said note, by executing another; which he did. That the said Meux subsequently signed the latter note, as surety, without the complaint’s knowledge, or consent. That Watkins then induced the complainant to execute a power of attorney, t.o confess judgment of the note; which, confession was made, also, by Meux.
    The defendants not having answered, the bill was token pro confesso. At the fall term of 1832, the complainant moved to set aside the judgment, pro confesso; and for a rule against the defendants, compelling an answer : and, also, for an order, to take the testimony of Irby and Meux, as witnesses. On final hearing the injunction was dissolved, and a writ of error taken, here.
    It was assigned, as cause for reversal — first, the, refusal of the Court to set aside the decree pro con-fesso; secondly, the refusal of the Court, to award a commission, to examine Irby and Meux; thirdly, the refusal of the Court, bn final hearing,'to receive the deposition of Meux, as testimony ; fourthly, the refusal of the Court, to perpetuate the injunction.
    Robinson, for the plaintiff in error; Thornton, contra.

   Hitchcock, C. J.

This is a bill, in Equity, to enjoin a judgment at law, on the ground of usury.— The bill was .dismissed by the Circuit Court of Madison Co'unty, and the case’ comes here, on a writ of error, to reverse that decree.

The facts disclosed in t’he bill make out, undoubtedly, a case of usury — every one of which, unfortunately, for the complainant, were within his knowledge, before the rendition of the judgment; notwithstanding which, the complainant voluntarily gave a power of attorney, to confess the judgment, which he now seeks to avoid; and without stating any legal excuse, either for giving the power of attorney, or. for not applying, before, judgment, to avoid the contract.

It is a well settled principle, that a Court of Chancery will not relieve, against a judgment at law, on the ground of its being contrary to equity; unless 4he defendant in the judgment was ignorant of the fact in question, pending the suit; or, it could not be received as a defence at law: or, unless, without any neglect or default, on-his part, he was prevented, by fraud or accident, or the ac't of the opposite party, from availing himself of the defence.

The facts relied upon, by the complainant, are the alleged collusion of Watkins and Meux, and the threat, by Watkins, that he would sue on the nóte, if the defendant did not give a power of attorney, to confess judgment.

These, so far from furnishing an excuse, for not going into equity, till after the judgment, furnish the strongest reasons why he should have applied himself to equity, .before the judgment. The complainant comes into Equity, entirely too late. Although it may be a hard case; yet, the complainant has made it so, by his own neglect; and ne cannot relieve him.

It is contended, that this'Court cannot look into the equity of the bill, as the assignments ar'e confined to the refusal of the Court below, to grant the motions for the attachment, and the order to take the testimony of Meux and Irby.

This reasoning cannot be sustained. We are obliged to look into the bill, to ascertain whether the motions should have been granted ; and, in doing so, if we find there is no equity in the bilí, dt furnishes all the reasons that are necessary, to dispose of. the case.

It would be idle to reverse and remand the case, when we are satisfied, that the'bill itself, would.be bad, on demurrer.. Besides this, it is .conceived, that the fourth assignment'brings the equity of the bill, directly befpre the Court.

Let the decree be affirmed.

Hopkiiís, J., not sitting.

       6 Johns Rep. 87


author: Per Curiam.

text:
    CHARLES, a slave, versus THE STATE.
    QUESTION IN THIS CASE.

      As to the suspension of juflgment in criminal cases.

    1. That an inferior Court, in reserving a question for the opinion of the Supreme Court, suspends judgment beyond the forty days, directed by the statute of 1834, is not error — the statute being only directory.

       Aik. Dig. 3d ed. 614

   Per Curiam.

This is an application for a writ of error, to reverse a sentence of the Circuit Court of Madison County, in a case of felony, where’ the sentence is death. The record is before this Court, on a point reserved at the trial. The sentence of the Court was pronounced under the act of 1834, which requires that it shall be the duty of the Circuit Court, whenever a conviction shall be had, in a criminal case, which is capital, and points are reserved, as novel and difficult, to proceed s*nd render judgment, which shall be suspended to a time, not less than twenty-five nor more than forty days, after the. commencement of the nest succeeding term of the Supreme Court,

In this case, it appears, that, forty-seven days will have intervened, between the commencement of this term of the Court, and the day fixed for the execution of the sentence.

Without deciding whether this Court has power to grant a writ of error, in a capital case, we are all agreed, that there is wo error in the sentence of the Court below. We consider the statute as directory, only; and that, as the Court has jurisdiction of the subject matter, and the object of the statute was to secure the accused a sufficient time, to have the points reserved, acted on by the Supreme Court, the prolongation of the time, is not such an injury to the accused, as to warrant a reversal of the judgment and sentence.

By the act of 25 George, II, it is enacted, that, in case of murder, the judge shall, in his sentence, direct execution to be performed on the next day, but one, after passing sentence.” It is held, that act is only directory, as to awarding the day of cution, and does not render it an essential requisite,

Motion refused.

       Chit. Bla Com. 306, in p. Wich refers to R. & R. c.c 230.


text:
    WATERS versus JONES.
    QUESTIONS-IK THIS CASE.

      Relative to what words are actionable, per se.

      As to evidence of the general character of a plaintiff, in slander.

    1. To charge one with having burned a gin house, is actionable,per se.

    2. To say of one, “ I believe you are guilty,” &c. of a crime, is-equivalent to a positive charge of it.-
    ■3. So, it is a good cause of action, in slander, to say of a perj son, “it is the general opinion of the people in J’s neighborhood, that he J, burned C’s gin house.”
    4. To say of a person, “ I can prove that J burnt the gin house of C, by H, or that J was in a condition about the gin house, previous to the burning of it, which caused every person in J’s settlement to believe J did burn the gin house” are likewise actionable.
    5. To say of J, “ he has been at different times, close about .where C’s gin house was burnt, in disguise with a sheep skin or bear skin,” is not actionable.
    6. In the action of slander, evidence of the general character of the plaintiff, is admissible.
    This was an action of trespass on the case, instituted by Jones against Waters, in the Circuit Court of Butler.
    The declaration consisted of six counts; and, after the usual inducement, alleged, that before the commitment of the said grivances, by the said defendant, a certain Francis Coleman, then of said county of Butler, was lawfully possessed of a certain cotton gin house, situated in the said county, stored with cotton; that afterwards, to-wit, on the 15th July, 1835, the said cotton gin house, with the cotton there-1 in stored, were wholly burned and consumed by fire: that the defendant well knowing the premises, and contriving wickedly and maliciously to injure the plaintiff in his good name, and reputation; and to cause it to be believed that he was guilty of the crime of arson — spoke and published of and concerning the plaintiff, these following false, scandalous, and defamatory words, to-wit:
    First-“jHe [meaning plaintiff] burnt the gin house of Francis Coleman.”

    Secondly — “ It is the general opinion of the people in his (Jones) neighborhood, that he (Jones,) burnt Colemaris gin house, and it is not denied by said Jones in his settlement; and in consequence of which, /¿e(Jones) could not get but two or three votes, in his settlement”— meaning, for the representative branch of the Legist lature.
    Thirdly. — “ I. can prove that Jones burnt the gin house of Coleman, by Edward II. Herbert, and Hardy Herbert; or that he was in a condition about the gin house, previous to the burning of it, which caused every person in Ms settlement to believe that he (Jones) did burn the gin house.” -

      Fourthly. — “Jones has been seen two or three times, and at different times, close about where Mr. Frank Coleman's gin house was burnt, in disguise with a sheep skin, or bear skin; and that he (defendant) could prove it, by Edward Herbert, and Hardy Herbert, and the Colemans.”

    Fifthly. — “ It is the general opinion of the people of his (Jones) neighborhood, that Jie (Jones) burnt the gin house of Coleman.”

      Sixthly. — V I believe that he (Jones) knew of the burning of the gin, and was concerned in it,” &c.

      The defendant demurred to five of the counts in the declaration ; and the demurrer was sustained, by the Court below, to the sixth count alone. The record recites, that a jury then came, and-upon pleas and issue .joined, rendered a verdict in favor of the plains tiff for the sum of fifteen hundred dollars. .
    A bill of exceptions, taken in the progress of the trial, relates, that during the examination of witnesses on the part of the defendant, the counsel for defendant wras about to'ask of the witnesses questions going to prove the general character of the plaintiff. The Court remarked, that it had rather hear authorities produced to support the propriety of the motion ; to which it was replied, that there were no books at hand. The Court did not decide the point, as it. was no.t further pressed. The counsel also offered a hand bill to a witness, and asked him if such a paper was seen by him in circulation; to which he replied, he had seen the same, or one similar; but such handbill was not read to the jury, nor in the hearing of the Court. The Court refused afterwards to let the counsel for defendant allude to the contents of said hand bill in any way.
    In charging the jury, the defendant’s counsel asked the Court to charge, that if defendant had offered any proof going to show, that the words uttered by him were a current report in his neighborhood, and pnly repeated by him, should go in mitigation of damages ; which charge the Court refused.
    Argued by Porter, for the plaintiff in error.
   Collier, J.

The defendant in error, (who was plaintiff below,) brought his action for slander, in the Circuit Court of Butler. The declaration contains six counts: to the first, the plaintiff in error pleaded “ not guilty;” and to the second, third, fourth, fifth and sixth, he demurred, separately. The Court sustained the demurrer to the sixth, and overruled it as to all the others. Judgment was entered upon the demurrer as to the sixth : and, to the other counts, the record informs us, there were pleas and issues; but what the character of those pleas was, we are not informed.

The first count alleges, that the plaintiff in error charged the defendant in error, with having falsely and maliciously, burnt the gin-house, (a house in which cotton was stored,) of Francis Coleman. The other counts all refer to this.

The second and fifth counts allege, in substance, that the plaintiff in error said of the defendant in error, that it is generally believed, in his neighborhood, that he burnt Francis Coleman’s gin-house; in addition to which, the second count alleges, that such general belief was not denied; and that the defendant in error could not get more than two or three votes for the house of representatives of the legislature of this State.

The third count alleges, that the plaintiff in error said, of the defendant in error, that he could prove, by Edward H. and Hardy Herbert, that the defendant in error bu rnt Francis Coleman’s gin house, or was in such a condition, previous to the burning of it, as caused every person in his settlement,, to believe that he burnt it.

The fourth count sets forth, that the plaintiff in error said, of the defendant in error, that he had been seen, two or three times, and at different times, closó about where Frank Coleman’s gin-house was burnt, in disguise, covered with a sheep, or bear-skin; and he, (the plaintiff in error,) could prove it, by Edward H. and Hardy Herbert.

It will be unnecessary to say any thing about the sixth count, in as much ás the demurrer was sustained, to it.

It appears, from a bill of exceptions, accompanying the transcript first, that the plaintiff in error proposed to inquire into the general character of the defendant in error.- The Court remárked, that it had rather hear authorities, on the point: to which it was replied, that there were no books at hand.— The proposition not being further pressed, it was not decided upon, by the Court. Secondly — the Court refused to allow the counsel for the plaintiff in error, to allude in any way, to a hand-bill,, (which was shewn to a witness, who answéred, that he had seen it, or one similar, on the ground, that it was not read in evidence. Thirdly — the Court refused, on motion, to instruct the jury, that if the plaintiff in error had offered any evidence, to show the currency of the imputations in his neighborhood, which he was charged with having made, and he merely repeated what was current, such evidence should go in mitigation of damages.'

The jury found a verdict for the defendant in error, and judgment was rendered accordingly. And we are now asked to revise the questions of law, arising upon the bill of exceptions, and the demurrers to the second, third,.fourth and fifth counts.

In reference to the second and fifth counts, they allege, substantially, that the plaintiff in error, has said, of the defendant in error, that the general be* lief, in his neighborhood, imputes to him, the burning of Francis Coleman’s gin-house.

To burn a cotton house, is made arson, by statute; an offence, involving a great degree of moral turpitude. According to the rule, laid down by this Court, to ascertain whether words are actionable, in themselves, to charge one with having been guilty of the crime, subjects the author of the charge, to an action for damages. So, to charge one with having'burnt a house, of the description of any one of those designated by the statute, is equally slanderous, as if the offence was mentioned by name. Nor is it necessary to employ the precise designation which the statute uses : any other terms, of equivalent ’meaning, in popular understanding, are quite sufficient. The statute does not make a gin-house, eo nomine, a subject, touching which arson may be committed; but the terms “ cotton house,” are em.ployed. Now, as a gin-house is a house in which cotton is usually stored, every one understands, that, by a charge of burning it, is intended a house in which cotton is kept; though there might be a gin there, also. We can, then, discover no difference, so far as arson is concerned, between a gin-house and cotton-house.

To maintain an action for slander, it is not necessary that the charge of a crime should be direct and positive — -the imputation may be inferred from an indirect communication. Where a defendant expresses a suspicion, or institutes a comparison, or delivers the words as matter of hear-say‘, or by way of interrogation, or answer, or exclamation, or uses disjunctive or adjective words, or speaks ironically; or, in, general, where the statement virtually includes or assumes the commission of the principal act,or- a strong suspicion of it.”

.,, _ . .. , . ^ To say of one, “ 1 believe, or “ in my opinion, you are guilty of arson,” is clearly actionable. In Logan vs. Steele, it was held, that an action lay a--gainst the defendant, for having said of the plaintiff, “ I have every reason to believe that he burnt my barn." So, in Miller vs. Miller, the defendant said, of the plaintiff, “ My watch was stolen out of the widow Miller’s [plaintiff’s] bar-room; and I have reason to believe Tina Miller took it, and her mother, [plaintiff,] concealed it. The Court decided that the assertion, “ he had reason to believe, that the one took, and the other concealed it, is equivalent to the charge, that the one stole, or took it, and the other concealed it;” and that, the allegation, that his 'watch had been stolen, and he had reason to believe,&c., amounted to a positive averment; for a man only alleges a thing to be so, because he has reason for so believing it.

To the same effect are the cases of Oldham vs. Peake, and Stick vs. Wisdome. See, also, Brown vs. Lamberton, and Bonham vs. Boyer, and Nye vs. Otis.

To say of one, “ I have been informed, you are guilty of arson,” without disclosing the name of the Author, are words, for which an action will lie.-Now, as belief is the result of evidence, to say, “ I believe you are guilty of the crime,” &c., is equivalent to saying “ I have such evidence as convinces me, you have committed the crime,” &c.; and is equivalent to a positive charge.

To charge the commission of a crime, upon hearsay, is actionable, as we have already seen. Here, the defendant in error is charged with having been guilty of arson, according to the general belief of his neighborhood. They could not believe,- without proof, nor could the plaintiff in error have known their belief, had they not expressed it. The meaning of the imputation, then, is, the people of the neighborhood, of the defendant in error, generally, say of him, that they have reason to believe, that he burnt Francis Coleman’s gin-house. 'Thus interpreted, the words spoken, furnish a good causeof action.

In regard to the third count, the words are charged to have been spoken in the disjunctive, and come within the rule, as laid down, in Starkie on Slander, 58; so, if a part be actionable, and are not explained away, by the other words, used, it is enough. — • The first branch of the imputation contains words, indisputably actionable. The second branch charges the belief of the neighborhood, founded upon the condition of the defendant in error, previous to the burning, to be, that he burnt Francis Coleman’s gin house. This is certainly tantamount to charging, that it is said and believed, that the plaintiff below, has committed arson, without furnishing the name of any individual to whom'he may resort, for redress; and, according to the view taken of the second and fifth counts, the plaintiff in error is legally chargeable, upon either, or both branches of the imputation.

The fourth count imputes no crime directly, nor does it allege a state of facts, from which the com- . mission of one can be necessarily inferred. The words spoken merely charge the defendant in error, with having been in a suspicious place, under suspi-ciouo circumstances. These words, more especially when considered with reference to other parts of the declaration, do not charge directly or indirectly, positively or upon suspicion, any act or crime.

In respect to the assignments, founded on the bill of exceptions, we think the Circuit Court should have allowed the proposed inquiry to be made, into the general character of the defendant in error. That such inquiry was proper, on principle, we have no doubt. A rpan, whose general character is bad, as having been remarkable for a “great want of moral principle, &c. certainly should not receive from a jury, the same amount of damages, [as be, whose conduct through life, has continually presented an example of moral beauty.

We find, too, that authority tolerates the admission of such proof.

The proposition, to inquire into the general char-of 'the defendant, seems to have heen arrested by the Court, mero motu, and a desire expressed to hear some authority upon the point. The Court roust, then, be understood to have arrested the exa-róinati°n, unless authority were offered, to shew its propriety. . No authorities being at hand, and the Court so informed, the counsel had a right to consi-der its opinion against them, unless they were directed to proceed; and it would not, perhaps, have been quite courtious, to have proceeded in the inquiry, without a favorable intimation from the Court.

To the refusal of the Court to permit the paper, identified by a witness, to be referred to in argument, by the counsel for the plaintiff in error, there can bs ik> valid objection. — The. paper was not before the jury, -and could only become evidence, by being read to them; unless its reading was dispensed -with.

The bill of exceptions discloses nono of the evidence. We cannot, therefore, know whether the instruction asked of the Court, was portinont. And, according to the repeated decisions of this Court, we are bound to consider the point presented, as abstract from the merits, and consequently immaterial.

For the refusal of the Circuit Court., to sustain the demurrer to the fourth count of the declaration, and for arresting, the examination into the general ■character of the defendant in error, the judgment is reversed, and the cause remanded.

      A Stark, on Slander 58

       1 Bibb, 593

       8 John. 58

       2 Bla R 961

       Cro.E.348

       2 Binn. 34

       3 Binn. 515

       8 Mass. 122

       2 Stark. Ev 879

       Anth. N.P 185;2Cow.811; Root354; ib.459 2 ib.149; 2 Hayle,222 2N.&M'C 511; 3Mass 546; 6ib. 275; 2 Mar. 372; 2 Mar.372; 3 Con. 463 1 Binn. 92; H holt's C 534


text:
    SCOTT, Guardian, versus KELSON, Ex’or.
    QUESTION IN THIS CASE.

      Relative to the construction of the word, “children” in a will.

      1. Where a testator directed, by his will, that certain estate-should be equally divided among his children, and stated that certain amounts received by them, should be rendered by each to the estate, before being entitled to a distribution; and among those who had obtained advancements, named his son, T, as having, in his life-time, received a specified amount — it was held, that T D, the son of T, and grand-són of the-testator, was included in the term “ children,” and entitled to a distributive share, under the will.
    This case came up, on exceptions to the report of commissioners, appointed by the Orphans’ Court of Greene, to distribute the estate of William Bell.— The commissioners, in their report and distribution, having allotted to Turner D. Bell, the grand-son of the testator, an equal share in- his estate, exceptions were taken, and sustained by the Court, to the report — on the ground, that the said Turner D. Bell was not entitled, under the will of William Bell, to any part of the estate. The will of William Béll was as follows:
    “I, William Bell, of Greene County, do hereby make my last will and testament, in manner and form following, that is tof say: First — I will all my real-estate, to my wife, Elizabeth Bell, for and during her natural life, and, at her death, to be equally divided among my children. Secondly — I will her the following personal property: ’ a negro man, Collin, and bis wife, Jenny, and Eliza, her child; and a fourth part of the hogs, cattle, sheep, horses, mules, farming utensils, household and kitchen furniture, and one fourth part of the corn and fodder, which may be on hand, at my death. I will the balance of my property, to be equally divided amongst my children; Margary having received eight hundred dollarc — Turner, in his life-time, fourteen hundred dollars, and Elizabeth Ridgeway, fourteen hundred; these amounts have to be rendered by each, to my estate, before they are entitled to an equal distribution with the younger children. Alexander, having received two hundred dollars, to enter a piece of land, has to render that amount into the estate. John, having received fourteen hundred dolíais, has to render that amount into the estate, before he is entitled to an equal cistribution. I appoint my friend, J. John Nelson, my executor, to see my will carried into effect.
    “July 21, 1831. Wm. Bell.”
    Argued by Stewart & Thornton, for the plaintiff in error; aud by Mr Erwin, for the defendant.
   Hitchcock, C. J.

This is a writ of error from the County Court of Greene County, sitting as a Court of probate, to reverse a decree of said Court, giving a construction to the will of William Bell. The will is in the following words, viz :

“ 1.1 will all my real estate to my wife, Elizabeth Bell, for and- during her natural life, and, at her death, to be equally divided amongst my children.
“ 2. I will her the following personal property, to wit, [naming some negroes, and other personalty.] -
“3. I will the balance of my property to be equal-1 y divided amongst my children,: Margary, having received eight hundred dollars; Turner, in his lifetime,. fourteen hundred dollars; and Elizabeth Ridge-way, fourteen hundred; these amounts have to be rendered, by each, to rny estáte, before they are entitled to an equal distribution with the younger children. Alexander, háving received two hundred dollars, to enter a piece of land, has to render that a-jnount into the estate. John, having received fourteen hundred dollars, has to render that arnonut into the estate, before he is entitled to an equal distribution. I appoint my friend, John Nelson, my executor,” &c.

Turner Bell, who is mentioned in the will as having, in his life-tirne, received fourteen hundred dollars, left a son named Turner D. Bell, who, by his guardian, claims the share to which his father would have been entitled, had he been lining. The commissioners who were appointed to divide the personal estate, gave him one share. Exception uas taken to this, before the Court below, who sustained, the exception; and decreed that he was not entitled to any thing under the will.'

The exposition of wills has always been governed, by the intention of the testator. He, not' being supposed to be acquainted with legal form and language, a,greater latitude of construction is permitted, to leave to every ope the power to make his own will in his own way. It is emphatically said, that intention is the pole-star in the direction of devises.

The words of a will are the means from which to collect the intention; and to arrive at this, the law neither requires nor expects technical words. Nay, more : when technical words are used, their teehnical signification will yield to the testator’s meaning, if he explains them., The word heirs, and heirs of the body, are, techic'ally, words of descent. Yet, if it be the intention, these words will be accepted as words of purchase, So also, issue, children, son, ^ technically words of purchase; yet they will be cepted as words of descent, if it be the testator’s miention.

So also, under the word children, grand . , ' ’ *. , and great grand children may take, it it be necessary and proper to effectuate the intention of the testator. And as the true construction of the will, before the Court, depends upon the meaning of the word tgg-tatpr. in the use of the children, I shall confine my remarks to that point.

It is admitted, that the word children, does not ordinarily and properly speaking, comprehend grand children, or issue generally.

There are two cases where it is permitted—

1. From necessity — where the will would be inoperative, unless the sense is extended beyond its natural import: and, '
2. When the testator has shewn, bf other words, that he did not intend to use the word' children in its proper actual meaning, but in a more extended sense.

Under the first of them, Wylde’s case is found : which was upon a devise to a man and his children. It, was held, if there were no children at the date of the will, the father would take an estate-tail, and children would mean issue; for it was evident something was intended for children : but none being in issue, they could take nothing except through the father ; and he could transmit nothing to them, unless he,had an estafe of inheritance. It was necessary, 0„therefore, to construe the -word “children,” ftsue, on account of the general apparent intention,

are as the words “ children” and “ issue,” are indiscriminately used by the testator — thereby shewing bis intention to use the former -word in its enlarged sense, so as to include grand children.

In the case of Wythe vs. Blackman, Col. Thurston, by a voluntary deed, limited real estate, after the death of himself, and nephew John, an'd failure of estates in tail mail, to John’s first and other sons, to fou.r persons — Lady Chary, Mrs. Wythe, and Mrs. Blackman, his three sisters, and the fourth was his niece, daughter of a deceased brother — to sell, and divide the money and mesne profits among themselves, naming them, or the respective issues of their bodies, if they or any of them should be dead, upon the failure of such issue of John, viz, to each of them, or their respective children, a fourth part. But, if any of them should be dead, without issue, on failure' of such issue of John, then, to their survivors, or to their respective children, equallyj' if any of them should be dead, leaving issue. John survived the testator,-and died after being in possession of the estate, and without issue. The three sisters and niece died before John, the niece leaving no issue. But at the death of John, lady Chary had three children; Mrs. Wythe, both children and grand-children, and Mrs. Blackman, grand-ohildren, only. One of the questions was, whether the children of Lady Chary and Mrs. Wythe, were entitled to have the whole estate divided among them, in two shares, or whether the grand-children of Mrs. Blackman, and the great gr'and-children of Mrs. Wythe, were entitled to participate with them. A question, whether the import of the word issue, was to he restrained by the word children, or the word children enlarged by that of issue ; and Lord Hardwick decided, that children, grand-children, and great grand-children were collectively entitled.

In the case under consideration, the testator had,at the date of the will, children whom he names, and one grand-child whom he. did not name; and it. is admitted, that had he given in his estate to his children generally, or by name, without making any allusion to his deceased son, Turner, that the word “ children” would be taken in its ordinary'sense, and lhat the grand-children would be excluded. But, it is contended, that in as much, as in the first clause he ■gives his estate, after the termination of his wife’s life, to his children generally ; and that, in the third clause, when he comes to dispose of his personalty and the residuum, in which he names his sons and daughters, alludes to the sums they had received in advancement, and requires those sums to he returned to the estate before distribution, and in this clause names-his deceased son, Turner, and the share he had in his life-time received,.and requires it to here-turned also before a division — the testator rntist, have had the. son of Turner in' his mind, and that he included him in the general term children, with the others. And in order to strengthen this construction,reference is had to another rule of interpretation, which is, that “ effect ought to be given to the whole will, if possible, so that every word ought to have ef-feet, unless inconsistent with the general intention.” We are inclined to this interpretation, of. the will,.

Although wills operate from the death of the testator, yet, as a general rule, they are construed from the making; and we are to -consider what was probably passing in the mind of the testator when writing his will.

Had the testator, in this case, overlooked the event of his son’s death, and had made no allusion to it or to his grand-son. the. Court * would not rectify the omission by intendment; as this would be, rather making, than construing the will. • But when, as in this case, the deceased’ son is named, and the same directions given, relating to his interest, as is given to the rest, can we draw any other 'conclusion than that he intended that son’s interest to be represented in the distribution; and if so, to whom would it go, except to the grand-son ? Otherwise, the words would be inoperative — with it, we do not interfere with the general intention.

If the testator had made no will, by the general law of descent, the grand child would, by right of representation, have stood in the shoes of his father, and taken an equal share with the other children. As the testator followed the law of descents, in giving an equal share to his children — in doing which he thought proper to name his deceased son, requiring the same to be done by him, that was to be'done bj the others — may we not well say, that he intended to follow the laws of descent — and, in this instance, construe the term children, into a word of descent, instead of a word of purchase; which, technically speaking, it is construed. Indeed, when .a person devises to his heir at law, he cannot make him ta k by purchase, if be devises to him the same estate that he would take by descent.

Presuming that the testator knew what the law of descent is, are we not bound to infer, that from his allusion to his deceased son, he intended only follow the law of descent, except so far as provision is made for his wife; and that not knowing the technical meaning of the word children, he intended to provide for the grand-child, by bringing into the will the share of his father, and in that way secure, what the law would have done, without the will.

Indeed, it is admitted in argument, that probably it was his intention, to give a child’s share to this grand-child. But, it is contended, that that intention has not been legally expressed.; or, if expressed, that it can not be sustained, without violating the known and well settled rules of law.

It is conceded, by the counsel for the defendant in error, “ that in construing wills, every word is to have effect, according to its natural import, and that words of art, are to(be construed according to theijr technical sense; unless, upon the whole will, it appears plainly not tobe so intended'; and a list of cases, from 2 Bridg. Digest,'734, are referred to.

The competency of testimony to shew, that Turner Bell left a son, is not questioned. Now, if the principle, that every word of a will is to be made to have effect, if it can consistently be done, is lo be ap-, plied to this case — what is more plain, than that, in directing that the several advancements, to Margary, to Turner, in his life-time, and to Elizabeth, should be returned to the estate, before they should be entitled to an equal distribution. How can it be denied, that the testator intended to establish a principle of dis-tribnion which should recognise-the right of the legal representatives of his deceased son Turner, and if so, how can we accomplish that intention, without considering the word “ children,” in its enlarged and- comprehensive sense, as including grand children — thereby considering it sinonymous with the word, “issue?”

If the Court, as was doné in Wylde’s case, above referred to, iti a devise to a man and his children, considered the father as taking an estale tail, thereby giving the weird “children,” the effect of ihe word “issue,” to prevent the devise becoming inoperative; and if, as in the case of Wythe vs. Blakman, where it was not necessary to give the enlarged construction to the word, “children,” to prevent such a consequence, (as there were children in that case,) but purely to effectuate the intention of the testator, gave the word the sainé enlarged sense; surely we are justified in giving it the same construction, in a case where the intention is equally manifest.

But, it is contended, that, to give the will this construction, the Court will violate a known rule of law; which is, “ that a devise or bequest, to one, notin being, at the time of the execution of the will, is, void:” and, in farther illustration of this position, it is said, that if the bequest had been made, to Turner, when living, and he had died before the testator, his heir would take nothing by the will.

These positions of law are not controverted; but their application to the present case, is questioned. The devise and bequest are not made to Turner Bell — his death is recognised ; and his son does not claim through his father, and as his legal representative — he claims, as being one of the children of the testator, in the sonso in which iho testator meant to use the word : that is, as one of the issue of the testator. It is undoubtedly true, that if Turner had been alive, at the execution of the will, and the bequest had been made to him, and he had died before the testator, the bequest would have lapsed. The testator, in such a case, having, at the date of his will, fixed the meaning of ihe word “children,” and having confined it to its technical meaning, the subsequent act of Providence, in removing the heir from this life, before the death-of the testator, does not 'au-thorise the Court to change the construction, so as to accommodate the will to the change of circumstances. The effect of a will, may be changed, by Courts, subsequent 1o its execution ; but not the intention — if so, it would not be the intention expressed in the will. A testator may, and they often do, anticipate events and provide for them, which maj^ often become the subject of legal construction ; but still the intention of the testator is to be preserved.

The case of Radchffe vs. Buckley, is mainly relied upon, by the defendant’s counsel, to support ‘ J - 1 „ construction of the will. In that case, James Buckley, by his will, dated the 4th April, 1799, disposed of all his personal estate, in the following manner— “All the residue, and remainder of my personal estate and effects, whatsoever, and wheresoever, I give and bequeath unto and amongst all the children, lawfully begotten of William Buckley, Henry Buckley, John Buckley, Thomas Buckley, and Ann, the wife of Hugh Shaw, my late brothers and sister, deceased, to be equally divided amongst ihem, in their respective parents’ stead, per stirpes, and not per capi-ta, share and share, alike, if more than one; and if but one, then I give the same wholly to that one.” All the brothers, and the sister were dead, at the execution of the will;'at which time there was issue of William Buckley, three children living, and several grand-children, by four deceased children; the other brothers, also, left children, and grand-children, by deceased children : Ann Shaw had several children, who were all dead, at the making of the will, three of them leaving several children.

The .Court, decided, that the children, w.ho were living at the date of the will, were entitled to the estate, to' the exclusion of the grand-children.

I shall not go into an extended examination of tliis will, to distinguish it from the one under consideration. The reasoning of the master of the rolls, in that case, exhibits such material distinctions between that and this, that it will only be necessary to advert briefly to them, in order to shew its irrelevancy.

In the first place, the distribution is to be per stirpes, and not per capita; thereby enacting classes, which is not the case in the will before us.

2. The word “children,” was used but once in the' will, and to give it the extended con six action, in one part of the will, and reject it in the other — to preserve another pai't, as the different sets of children were to be provided■ for, was not admissible: here, no such incongruity exists.

3. The will was, confessedly, ambiguous, and the Court were seeking to get at the general intention — - to do which, they, were obliged to exclude the limited intention in favor of Ann Shaw’s grand-children. Here, there is no ambiguity. To let in the grandchild, here, we do not have to 'exclude any of the others named. And—

4. The fact, that the testator expressly referred to the death of his son, Turner, in making the bequest, directing his advancement to be brought into hotch-pot, before distribution, shews that his mind was directed to that object, which can only be effected, by giving the word its extended signification. There was no such allusion, in the.will of, Buckley; and, though it w7as proved he knew of the death of Mrs. Shaw’s children; yet, the fact may not have been present to his mind, at the making of his will.

In every view, therefore, in which we have been enabled to consider this case, we are satisfied that Turner D. Bell, the grand-child, is entitled to a distributive share of the estate of William Bell, under the will.

The judgment of the Court below is reversed, and the decision of the commissioners sustained.

Reversed and remanded.

Hopkins, J., not sitting.

      112 Bur 1112 2East, 42

       5 Term R 721.

       2 L R 1440 11East,671 2 Atk. 582 4 Term R. 299; 5 ibid. 323; 6 Coke 617; 2Barn & C 538; Doug 306.

       1 Rop. on L 69—10 Vesey 201.

         2 Atk.221.

       2 BlaCom. 241; 1Sal. 233; 2Ves. & B. 187

       3 Bur.1541 1T. R. 201;3ib.5-6-Wil. 297; 2 Bar & C. 69 Bar & C.69 b10Ves.195

      b 10 ves.195


text:
    BROOK et al. versus COOK et al.

      QUESTION IN THIS CASE

      to parol contracts for the s'üe of lands.
    1. A parol contract for the sale of lands, accompanied with possession, improvements by the vendee, uninterrupted occupancy, and frequent acts recognising the sale, by the vendor, will lake such contract out of the statute of frauds; and authorise Chancery to decree a specific performance.
    This was a bill it) Chancery, filed in Madison Circuit Court, against the plaintiffs in error, the adminis-tratrix and heirs of the estate of Reuben Brock, deceased. The bill shewed, that the said Reuben Brock, in his life-time, being seized of certain lands, made sale thereof, to one Sadler. That, Sadler took possession and made improvements, and afterwards, sold off, to sundry persons, portions of said land.— That, subsequently, the remainder of the land was sold, by Sadler and his sons, who were concerned as a mercantile firm, to one Fenwick, in trust under whose sale the land became the property of the complainants.
    Notwithstanding the denial of the allegations of "the bill, by the answer of the defendants, the testimony established most of the facts there set forth— 'particularly the sale to Sadler, the payment of the ■consideration money by him, and his occupancy and improvements.
    The Chancellor below, on a final hearing, rendered a decree in favor of the complainants; and, by w’rit of error, the cause was removed here.

      Argued by Mr. Craighead, for the plaintiffs in error; and by Mr: Thornlon, for the defendants.
   Collier, J.

The defendants in error filed their' bill iu the Circuit Court of Madison, iu May, 1828, for the specific performance of a contract for the sale and conveyance of lands. In their bill, they set forth, that in the year 1815, or perhaps earlier, the husband of the plaintiff in error, (Elizabeth,) sold to Isaac Sadler and Sons, the laud iu question, and delivered to them, the possession thereof, and received from1 them, payment of the entire purchase money. That Messrs Sadler & Sons made improvements, in clearing laud and building houses. It is further alleged, that, the land had been conveyed iu trust, for the payment of debts; and, under a power of sale, in the deed, had been sold by the trustee, and purchased by Ezra Patch and 1 he defendant, in error, (Henry Cook;) that Ezra Patch had sold his interest in the land, to the defendants in error, (Hodah Horton,) and Wrn. M. Wofford. The deeds from Sadler & Sous to their trustee, from the trustee to Patch and Cook, and from Patch to Horton and Wolford, accompany the bill, as exhibís, and appear to have been regularly proven, or acknowledged and recorded.

The plaintiff in error, Elizabeth, denies every allegation in the bill — not, positively, however, but argumentatively — and insisto upon the statute of frauds, and every statute of limitations which may lie thought, available. The other plaintiffs in error disclaim all knowledge of the matters, and refer to the answer of Elizabeth ; and insist that the allegations of the bill shall be made good, by proof.

The bill is fully sustained by the depositions in the cause: not only such portions of the bill as are here recited, are proved, but two of the witnesses state, that a deed was actually made and executed, to Messrs Sadler & Sons, or some one of them, at the time oi the purchase, according to their recollection. Further, it. appears, that Sadler & Sons had sold portions of the laud to different persons, and incumbered if, with the knowledge, and without the dissent of their seller. And, lastly, that the vendor had purchased of them, and paid for, {at least partially,) a small portion of it.

The question, presented for our consideration, is, whether the facts of this case, take it out of the statute of frauds. In the great contrariety of decision, as to what circumstances will relieve a parol agreement, for the sale of lands, from the operation of the statute of frauds, it would be difficult, (if not improper,) to prescribe rules, to guide us, in the determination of cases, (unlike the present, in their facts,) which may hereafter arise. We shall, therefore, be content to inquire, whether the proofs, in this case, do not entitle the defendants in error, to a specific performance.

In some of the English decisions, (and, perhaps,, in American, also,) it has been decided, that a part payment of the purchase money, upon the fooling of a parol agreement, took a case without the statute of frands. While, in other cases, it has been held, to be competent for the vendor to avail himself of the statute, though he has received a part of the purchase money.

The former.class of cases, are founded upon the that equity will not allow a statute, intended to suppress fraud, to become the instrument of its perpetration : and, as it would be a fraud, in the seller, after having received the purchase money, to disclaim the contract, he should be refused aid.

In the latter class, it is maintained, that to allow such equivocal acts, of part performance, to put aside the stalute, would be productive of all the danger which the statute proposed to avoid : hence, it was safer to refuse the removal of the inhibition imposed upon parol agreements, unless some act had been done, which tells, in itself, that a sale has been made.

In Allen vs Bonker, the question, as to the effect of a payment of part of the purchase money, upon a parol agreement, came directly before the Court, and it was determined that such payment did not take the case out of the statule.

In Davenport vs. Mason, the purchaser received possession, and it was decided, that a parol agreement for the sale of lands, is not absolutely void, by the statute, of frauds; but, if any act has been done, in part execution of tho contract, which would not have been done, baton account thereof — which was done, with a view to 1 lie agreement, and which is prejudicial to the party doing it, the parties are not permitted to treat ihe agreement as a nullity. Similar, in principle, are the cases of Ricker et al vs. Kelly et al. — Parkhurst et al. vs. Van Cortlundt — Downey vs. Hotchkiss.

In Wetmore vs. White et al. it was held, that the payment of the consideration money, possession, and making improvements take a case out of the of frauds, and will entitle to a decree, for a specific performance.

In all the States of the Union, with the exception of Kentucky and, perhaps; Tennessee, it has been determined, that a parol agreement, for the' sale of lands, is not, absolutely void ; but may be enforced in equity, if there have been acts of performance, so definite and unequivocal, as to furnish, in themselves, convincing proof, that an agreement had been made.

If it could be ascertained, what were the settled •course of decision, when our statute, against trauds and perjuries was enacted, it would be our duty to follow it. In enacting the provision we are considering, our legislature have copied almost verbatim, from the statutes of the Stales and of England, on this subject. In adopting the statute, vve must, be understood to have adopted, with it, the decisions of the English and American Courls — they, so far as then published, being supposed to be in the contemplation of the legislature—See Allen vs. Booker, and Downy vs. Hotchkiss, (before referred to.)

But, it is a task almost impracticable, to adduce from the mass of varying decision, any settled rules; nor do we consider it necessary, in ibis case, to attempt. i", as the decisions which adhere most, closely to the statule, save those ave have already excepted, recognise a case such as this, as not coming within its provisions. For, let, it be remembered, that here, there appears a sale, delivery of possession, improvements made, uninterrupted occupancy for twelve or fifleen years, and a repeated recognition, by the seller, both by words and acts, of the right of his ven-dee. We lay no stress on a purchase of a small part, made by the seller from his vendee; for, though proved, it is not staled in the bill.

We may add our regret, to thax which has been so often expressed by others, that the letter of the statute should ever have been departed from. But, with Lord Kenyon, we disclaim the power of legislation ; and, with him, are content to move super anliquas vias. and to administer ihe law, as we may ascertain it, by our industry and research.

In regard to the statutes of limitations, insisted on, in the answer of Elizabeth Brock, it is entirely enough to say, that there are none which are available for her.

Let the decree be affirmed.

Hopkins, J., having been of counsel below, did not sit.

      1 Vern 472 3 Atkl. ; 4 Ves. 720

       Pre. in Eq. ca. ab. 46; Lefroy, 22

       2 Stew 21

       15 Mass 85

       Greeni’f, 117

       14 John. 15

       2 Days's C. 225

       2 Caine's Ca. in Er. 87

       MBibb, 204.5 6,564; 3 ib. 2 ; 4 ih. 58; 1 Mai shall. 553; 3 ib. 445; M’Cinre •v Potter, in the Supreme Court of Tennessee, and cited in Allen v Booker, 2 .Stewart,2J.


author: Hopkins, J. Collter, J.

text:
    MORGAN, Ex'ix. versus CRABB.
    QUESTIONS IN THIS CASE.

      Upon relief in Chancery on impertinent testimony.

      As to suhjec iug assets to payme/il of debts, in Chan- . eery.

      Relative to rights of parties not litigating a cause.

    1. Chancery will not afford relief upon evidence — material allegations to support which, are not contained in the hill.
    2. Chancery will not subject the personal assets of an estate, (which cannot be reached by execution at law,) to the payment of a c.i editors demand, unless such creditor has obtained a judgment against the debtor ; and an execution thereon, has been returned nulla bona.

    3. Where an appeal is taken upon a decree, and it appears that neither of the parties litigating the cause, are entitled to the subject matter of the decree; but a third person, not a party to the appeal — this court cannot reverse in favor ofthe latter.
    In error from Tuskaloosa Circuit Court.
    This was a case in Chancery. George W. Crabb, by bill, set out, that, in 1829, one Richard Dennis, junior, executed to him and one Powell, a deed of trusl, of certain slaves, for the.benefit of his creditors — among whom was Richard Dennis, senior : that, the trustees having sold the slaves, and made distribution of the funds, found the sum of one thousand dollars due and owing to Dennis, the elder : that Richard Dennis, senior, being deceased, administration-of his estate had been committed to one Glover; who, together with Samuel B. Ewing, Samuel Morgan, and Thomas R. Bolling, were laying claim to the said money. The complainant, therefore,. filed this bill, to compel the claimants to litigate their conflicting claims; and to obtain a decree au thorising the payment, of the said sum to the party legally entitled thereto.
    ' The defendant, Bulling, claimed the amount as a creditor of Richard Dennis, senior. Having become the indorsee of a promissory note, executed by said Richard Dennis, senior, he obtained judgment, thereon against, the admiuistratoi ; and subsequently took out. an attachment : on this attachment, the said trustees, and Richard Dennis, junior, were summoned, and against, the latter, a judgment, finally obtained. Upon this debt, and judgment, Bolling, therefore, based his claim.
    Ewing claimed the fund, under certain transactions between himself and the younger Dennis; but none of these matters were sustained by proof.
    Glover did not set up a claim further, than as the administrator of the elder Dennis.
    Morgan having died, his- administratrix asserted his claim, as based upon au order, given by Dennis, senior, to her intestate, upm the said trustees; and upon the indebtedness of Dennis, senior, to said Samuel Morgan.
    In reference to the order, it was proved that, it was given by the elder Dennis, without consideration; and was intended to be xested in Morgan, as a trust fnmffor the use of Dennis’ illegitimate children.
    Upon this state of facts, the Circuit Court, decreed the money, first, to the discharge of Bolling’s claim, and secondly, to that, of the plaintiff in error.
    On this decree, Lucy Morgan prosecuted a writ of error, to this Court; and assigned for cause of reversal, the preference given by the Chancellor, to Bolling’s claim.

      Messrs. Ellis & Peck for the plaintiff in error— Mr, Thornton, contra.

   Hopkins, J.

In this case, Crabb, one of the defendants in error, had in bis hands the sum of one thousand dollars, as a trustee of the estate of one Richard Dennis, sen. deceased: to whi h each of the other defendants, and the plainliff in error, made a distinct and exclusive claim. For ihe purpose of compelling these persons, one of whom, was the ad-mi nist rator of Dennis, to set tie their conflicting claims, and to obtain the authority of a decree for the payment. of the money, which he wished to make to whoever was eutided to receive it, he filed his bill of interpleader against, all of them.

The defendant, Glover, who is the administrator of Richard Dennis, sen. claimed the money in his representative character only.

The answer of id wing was supported by no proof

The answer of Bolling stated, that be bad commenced a suit, by attachment, against Richard Dennis, sen. in which he sued out a summons garnishment against. Crabb, and one against. Richard Dennis, jr. That he obtained a judgment, against the latter, as the debtor of Richard Dennis, sen. ; but what was the result of the suit- by attachment, or of the summons to Crabb, the answer does not disclose. In this answer there is an allegation, the effect of which is, that, the facts staled in it will more fully appear by reference to the records remaining in the Court., in which the answer was filed, and the suit was pending. ■

The judgment against Richard Dennis, jr. could not be satisfied on an execution out of the assets of Richard Dennis, sen., and gave Boiling no right in equity, to tbe fund in the hands of Crabb An ori-gutal record of the law side of a Circuit Court, is competent evidence, on the equity side of the same Court, in any case, in which an authenticated transcript. of the record, would be. But, as there was no averment, hi the answer of Bolling, that he had a judgment againsi Richard Dennis, sen , he was entitled to no benefit from the proof of that fact. The reference, in his answer, to the record, was not, so made as to make the whole record a-part, of his answer. The. record was referred to, merely to prove the facts which were slated in the answer.

Tlie principle is well set!led, that no relief can be given, but on proof, pertinent to the statement of fads, relied on. 1o obtain it A party is no better entitled to relief, upon evidence, without the n.ateri-' al allegations, th n on such allegations, without sufi ficieut proof

But, had the judgment, against Richard Dennis, sen., been st ited in the answer, the proof of it would not entitle Billing, in equity, to the loud, which could not be reached by an execution upon the judgment To give a creditor a right to the exercise in his behalf, of the power, which Courts of Equity have, to subject personal assets, on which no execution at law, can he levied, to the satisfic.tion of his demand, he m ist h ive, not only a jo Igrnent against his debt- or, but an execution, with a return o$ nulla bona, before he makes his application for aid, 1o a Court, of Equity Vandegraaff et al vs. Medlock, et al

'Fhe plaiulilf in error claimed ihe fund, on an order, drawn upon the. trustee, for the amount of it, by Richard Dennis, sen., in his life-lime, in favor of her testator. It was proved, by the deposition of one witness, that, the te.siator, in his life-time, informed the witness, that the order was not drawn for any debt due to hirnself, but, for ihe use of some illegitimate children of the drawer. To another witness, the testator said, he had hut little interest in the order. Some small expenses incurred -by him, for the drawer, during his last sickness, lie was to retain-out of the amount, when collected, and the balance, he was to hold, as a trustee, for the benefit of the illegitimate children of Dennis, who drew ihe order. It is slated, in the only other deposition which relates to the consideration of ihe order, ihat, at the time it, was,drawn, the drawer was indebted to Morgan, the testator, but, in what amount the witness did ‘not know.

The proofs in the cause, show, that Dennis, the drawer, was insolvent, at the date of the order — and the proper inference from this fact is, that he drew the order, to defraud his creditors. It is not necessary to decide, whether, upon a contract, fraudulent, in part, so much secured by it, as was honestly due, may he recovered. In this case, the evidence did not. show that any particular sum was due. When proof is so indefinite, as not to fix any sum, or one of two sums, or a sum above one amount., and under another, as the amount, of the debt; there ought, to be no decree, for any thing. The decree of the Circuit Court directed that the (judgment of Bolling, against the administrator of Richard Dennis, sen., who was made a party to the suit, by attachment, after the' death of his intestate, should be first satisfied, out of the trust fund, and the balance paid to the plaintiff in error, upon t.he order. We think the whole fund should have been decreed to the administrator.— But, as no one has appealed, or prosecuted a writ of error, but one, who had a decree for something, when she was entitled to nothing, we can do no less than affirm the decree.

The settled practice of this Court, prevents the notice of any error, which is not presented by an assignment. The decree can not be reversed, for an error, which does not. injuriously affect the rights of the plaintiff in error; and the party who was injured by it, makes no complaint.

The view we have taken of the subject, was thought necessary, to prevent anjr mistake in future, as to the ground, upon which the decree is affirmed.

Let the decree be affirmed.

Collter, J.

In the Circuit Court, the only controversy, was between the plaintiff in error, and the defendant, Bolling — consequently, the claim of the administrator of the élder Dennis,-was not examined. Had it been brought to the view of the Court, the fund would certainly have been decreed to him. It is, however, more than probable, that no injury will result from the decree — especially, if Bolling was the only creditor, who gave notice of his demand, to the administrator, within eighteen months from the grant of administration.

L

       Lit R339—10 Weat 189

       4 John. Ch 671. 687.

      6 Page 389, of this vol.


author: HOPKINS, J.

text:
    CLARK vs CLARK.

      .As to equity jurisdiction, as to agreements between, late copartners.

    1. Where two, being partners in business, after a dissolution,' entered into an agreement under seal stipulating by a penalty, an observance of certain conditions — held, on a bill filed by one of the parties, that Chancery had no jurisdiction to enforce the performance of the agreement by one, — the bill' alleging no fraud, or desire of a rescission of the agreement, and the remedy.of the party being clear at law.
    Error to the Circuit Court of Lauderdale, exercising Chancery jurisdiction.
    In this case, a bill was Med in Chancery by John C. Clark against Marshall Clark, for an account, under a copartnership agreement. These were theYacts' disclosed by the record.
    On the tenth day of August, 1825, John C. Clark entered into a copartnership agreement, for the purpose of carrying on a mercantile business with Marshall Clark, John Simpson, and Thomas Simpson; the entire interest in which was afterwards Tested in John C. and Marshall Clark "by the withdrawal of the Simpsons. The said John C. and Marshall Clark continued to' transact the business of the firm until the sixteentn day of October, 1828, when-the copart-nership was dissolved, and upon its dissolution, an agreement was entered into between them in the ■words following, to wit:

      “ Articles of agreement made and entered into this fifteenth clay of January, in the year eighteen hundred and twenty-nine, between Marshall Clark of the one part, and John C. Clark of the other part,, formerly merchants and copartners in trade, trading under the style and firm of M. Clark & Co., all of the town of Florence, and State of Alabama, as follows: Marshall Clark agrees to relinquish, and does hereby relinquish, to John C. Clark, all his right, title, claim, and interest, in the business of the late firm of M. Clark & Co., both at Moulton and Florence ; and to all notes which belong to the firm of M. Clark & Co., and to all accounts and claims which are due upon the books of said firm, and to all profits, or interest, which he may, at any time, be entitled to as partner in said firm. Marshall Clark further relinquishes, to the said John C. Clark, all right and title whatsoever to lot number eighty-one, in the town of Florence, or to any claim on account of the improvements which arc made thereon : In consideration whereof, the said John O. Clark releases, discharges, and forever agrees to secure, and does hereby release, discharge and secure the said Marshall Clark from all liability for any of the debts, or demands which may at this time exist or remain outstanding against the said Tut;? of Marshall Clark & Co., and which have been contracted in the regular way of business, and from all liability to the said John C. Clack for any losses of any kind which the said firm of Marshall Clark & Co. may have, or may hereafter sustain; he further birds and obligates himself to satisfy the debts, and settle the business <of the late firm of Marshall Clark & Co., without any recourse upon the said Marshall, or holding him in any manner liable to the said firm of Marshall Clark & Co. as a partner in said firm, or on account of his private account upon the books of said firm. The said John C. Clark, further agrees to take upon himself, andto.be responsible for all the contracts made by Marshall Clark with different mechanics, for building a house and making improvements upon the lot number eighty-one, in the town of Florence ; and hereby binds and obligates himself to pay all debts, contracts, in making said improvement, and forever discharge the said Marshall Clark from all liability upon said contracts ; he further agrees to allow to the said Marshall Clark the sum of sixty-four dollars, it being the amount paid by him to P: Andrews for board, while attending to the business of Marshall Clark & Co.
    “ And for the performance of all and every of the articles and agreements above mentioned, the said Marshall Clark and John C. Clark, do hereby bind themselves, their executors, administrators, and assigns, each to the other, in the penal sum of one thousand dollars, firmly by these presents. In witness 'whereof, the parties have hereunto set their hands and seals, the day and year aforesaid.
    “Marshall Clark, (Seal.)
    “ John C. Clark, (Seal.)
    “Signed and sealed in the presence of
    “ John Simpson,
    “William Fulton.”
    The bill alleged, that complainant, when the .above agreement was complete, entertained a full belief, that the said Marshall Clark would honestly perform his part thereof, by relinquishing to complainant all the notes, claims, demands, and debts, in his posession, due and owing to the said firm of J. C. & M. Clark; but the said Marshall did not honestly account with orator as in good faith he should ; but refused to deliver all the accounts and claims aforesaid, as bound to dó in the agreement. Orator therefore prayed relief. Marshall Clark and the Simpsons having filed their several answers; and a voluminous collection of interrogatories being taken, . — all, only setting forth extensive details of the co: partnership concerns; — after an account taken by the Master, the cause came up for hearing, and the bill was dismissed by the Chancellor.

      P. Anderson for plaininff in error.

      Ormond, contra.
   HOPKINS, J.

— In this case, the parties had been partners in the mercantile business. Several months after the partnership had been dissolved, they made an agreement, under their seals, which required the plaintiff in error co pay all the demands due, or to become due, from their late firm ; exclusively to bear all its losses; to discharge the defendant from his private account upon the books of the firm ; and to pay the debts which Marshall Clark had contracted, for making some improvements on a lot in the town of Florence — the right to which was relinquished by the defendant in the agreement to John C. Clark. The defendant relinquished, also, to the plaintiff, by the agreement, all his interest in the business of the late firm — bis right in all the notes that belonged to it — to a share of the profits, and to all accounts which were due upon the books of the firm.

The bill, in the case, was filed by John C. Clark, upon the ground that the defendant had not delivered to him all the notes, accounts, effects, and deeds, which belonged to the firm ; and prayed that the defendant might be decreed to account for the amount of the sales made by the firm ; of the merchandize which had belonged to it, according to the books of the firm; and to pay the deficiency between such amount, and that which the complainant had received.

It is not the object of the plaintiff in error to rescind the agreement. He does not allege that the defendant obtained it by fraud; nor are there allegations of his insolvency; and that he would, if not restrained by the exercise of the power of a Court of Equity, collect the notes and accounts of the late firm.

For any violation of the agreement, he is clearly entitled to a legal remedy; and the bill states nothing to show that,the remedy at law would not be as effectual as any which a Court of Equity could afford.

By the agreement, each party is bound to the other in the penal sum of one thousand dollars, for the performance of every thing required of him. If the penalty be less than the sum at which the plaintiff estimates his damages, the same rule of law that determines the question, whether any sum bey°ud the penalty can be recovered, is recognised by a Court of Chancery.

are °pj-u*oa that the bill was properly dis.missed for want of jurisdiction.

Let the decree be affirmed.

       i Powoii Rands ef' Issnotes’


text:
    CLARK AND LINDSAY vs SIMMONS.

      As to credits entered on the bach of a bond.

    1. A credit entered on the back of a bond, which is legible, though shewing some evidence of an attempt to erase it, is good evidence of payment, to its extent, until disproved.
    Peter Simmons, by warrant from a justice of the peace of Jackson county, sued Lewis Clark and Oliver J. Lindsay, as makers of a note under seal: and judgment was given against the defendants; from which they took an appeal to the Circuit Court.
    On the trial in the Circuit Court, judgment was also given against the defendants; and they removed the cause into this Court by -writ of error.

      A bill of exceptions disclosed, that on the trial,the plaintiff gave in evidence a note under seal, signed by the defendants, and stipulating the payment to Peter Simmons, or order, of two thousand, pounds of seed cotton; — dated the thirtieth August,-1827, and payable on the first of December thereafter; the cotton for which given,-was proven to have been worth, at the maturity of the note, one dollar and seventy-live cents per hundred weight. A credit having been read from the back of the note, for eleven dollars and sixteen cents, — the defendants proposed, as testimony, another credit, which appeared, likewise, on the back of the note, — specifying the receipt on the sixteenth April, 1830, of fifteen hundred and twenty-two pounds cotton.. This credit was legible, though an attempt had been made to obliterate it, by drawing a pen through the lines.
    The Court below, instructed the jury, that the last credit should be disregarded by them, there being no other proof of payment.

      Me Clung, for the plaintiff.
    Robison, for the defendants.
   HOPKINS, J.

— Upon the trial of the issue in this' case, in the Circuit Court of Jackson county, the plaintiffs in error, who were defendants in that Court,offered to read as evidence, an endorsement of a credit on the bond, on which the demand against them was founded. The endorsement is legible, although an attempt had been made to obliterate it, by drawing a pen over the lines. The Court in-sir acted the jury, that it was not evidence of a payment.

We are of opinion the Court erred in giving the instruction. If the endorsement had been so effaced, as to be illegible, a disinterested person who had seen it before the obliteration, would have been a competent witness to prove what had been the contents of it. The endorsement being legible, is proof of the same fact. It was competent evidence, and would show the right of the plaintiffs in error to the credit they claimed, until it should be disproved, or the effect of it explained away by tlie testimony of the party.

Let the judgment he reversed, and the cause remanded.

       Reps, 341.