author: COLLIER, C. J. ORMOND, J.

text:
    FALLS & CALDWELL vs. GAITHER.
    1. An offer to sell property, not requiring an acceptance of the proposition to be accompanied with the purchase money, though made through an agent, may be re-called without notice being first given to the person to whom it is made; aliter, if the money is to be paid simultaneously with the acceptance, unless the continuance of the offer was for a limited time, and the acceptance was not made until after the limitation expired.
    2. An offer to sell, which requires the payment of the money, as the condition of acceptance, can only be met by the payment of the money.
    3. The period during which an offer to sell remains open to acceptance, depends upon the terms in which it was made, and other attendant circumstances.
    4. An authority to an agent, to sell and receive the money, does not authorise him to sell, without receiving the money.
    5. It is essential to a contract of sale, that there should be a concurrence of the minds of the vendor and vendee, though that concurrence need not take place at the same instant of time.
    6. Though, as a general rule, the testimony of a subscribing witness, where his attendance is practicable, is necessary to prove the execution of a paper; yet, where the writing is executed by an agent, he is competent to prove it, even if the subscribing witness be within the reach of the process of the court.

      Error to Marengo Circuit court.
    Detinue — tried before Chapman, J.
    The plaintiffs in error brought an action of detinue, in the Circuit court of Marengo, for the recovery of two female slaves of the defendant.
    The defendant pleaded non-delinet and the statute of limitations, on which issues of fact were joined, and the ease submitted to the jury.- On the trial, the presiding judge sealed a bill of exceptions, from which it appears, that both the plaintiffs and defendant claim the slaves sued for, under one Pinkney Caldwell, formerly of the State of North Carolina. The plaintiffs proved and read to the jury, a bill of sale, of the following tenor, viz :
    “ February 14th, 1835.
    “ Received of Theophilus Falls and Joseph Caldwell, one thousand dollars, for two negro girls, Mariah and Charlotte, about seventeen years old, which are now in the possession of Forest Gaither, in Marengo county, Alabama. The title to said negroes I do warrant and defend to the said Falls and Caldwell. Given under my hand and seal, the above date.
    Pinkney CaldaVell, [seal.] ”
    They then proved the possession of the slaves in the defendant, at the date of the writ, their value, and the value of their services.
    The defendant, on his part, offered in evidence a letter addressed to him by Pinkney Caldwell, of which the following is an extract:

      “ Dalonega, Octo. 24th, 1834.

      “Dear Forrest: I hope you will excuse me for not writing to you and family before this. I have for the last two years been very anxious to visit Alabama, but the situation of my business would not admit of my leaving home. I have to call on you for money, and you may rest assured it is through pure necessity, which Hiram can explain to you. I aril compelled to raise one thousand dollars, and have no other means only through you. If you will pay that amount to Hiram, I am willing to say, that it shall close all of our old business; and he shall make titles to the negro girls of mine that you have, to you. If you cannot do this, I am compelled to ask of you, (which I hope you will not refuse,) to give up to him the girls, and let him sell them for what they will bring. One of these requests, I do hope you will comply with. If I fail to raise the money from you, I must sell properly here. Hiram can state to you^the nature of my difficulties. If I can pay off what I owe here and in North Carolina, I will be in Alabama in the spring.”
    He also offered in evidence two bills of sale, subscribed with the name of Hiram Caldwell, which are as follows, viz:

      “ Received of Forest Gaither, five hundred dollars, in full payment for a negro girl named Mariah, aged abofft twenty years. I warrant the said negro to be sound and healty. Witness my hand and seal — March 10th, 1835. Hiram Caldwell, [Seal.]
    Test: John Ward.”

    “Received of Forest Gaither, five hundred dollars, in full payment for a neg'ro girl named Charlotte, aged about seventeen years. I warrant the said girl to he sound and healthy. Witness my hand and seal — March 10th, 1835. Hiram Caldwell, [seal.]
    Test: John Ward.”

      The defendant offered to prove the execution of the bills of sale, by the deposition of Hiram Caldwell, who, it appeared, had been released, so as to divest him of all interest in the event of the suit. To the introduction of the bills of sale, and the mode of proving their execution, the plaintiffs counsel objected, for the following .reasons:
    1. There was a subscribing witness to each of the bills, who was not produced, or his absence accounted for;
    2. The bills of sale were under seal, while the letter, Under the authority of which it was alleged they were given, was not a sealed instrument
    3. That if any authority or power was given by the letter, it was special, and its execution limited to a reasonable time, whereas the bills of sale were not made till the expiration of four months and a half after its date;

      A- That they appeared to have been made twenty-four days after the bill of sale to the plaintiffs from Pinkney Caldwell, which operated a revocation of the authority to Hiram Caldwell;
    5. That the bills of sale were subscribed by Hiram Caldwell, in his own name, and not as the agent or attorney in fact, of Pinkney Caldwell. Which several objections were overruled by the court, and the bills of sale read to the jury.
    The defendant proposed further, to read to the jury the deposition of Hiram Caldwell — in which the witness stated, that he had delivered to the defendant the letter from Pinkney Caldwell, a few days after it was written • — that the defendant, at that time, said he would accept the proposition made by Pinkney Caldwell, and pay him (witness) one thousand dollars for the two negroes, and expressed his readiness to do it at that time, but that he informed the defendant he need not pay it, until he (witness) should be ready to start to North Carolina — That in the month of March or April, eighteen hundred and thirty-five, when the witness was ready to start to North Carolina, the defendant paid him one thousand dollars, the price of the negro girls in controversy, accordingly as he bad stipulated with the witness, on receiving the letter of Pinkney Caldwell; and the witness conveyed them to the defendant, under the authority of the letter.
    The witness further stated, that, as the agent of Pink-ney Caldwell, he made a verbal contract with the defendant, early in November, eighteen hundred and thirty-four, to sell him the two slaves; and that although the bills of sale to the defendant, were subscribed by him in his own name only, that they were executed by him, as the agent of Pinkney Caldwell.
    To the admission of this deposition, the plaintiffs objected—
    1. Because the verbal agreement for a sale, was previous to, and extinguished by the bills of sale;

      2. Because the bills of sale were contradicted and varied by the facts stated in the deposition. Which objections were overruled by the court, and the testimony read to the jury.
    The jury having found a verdict against the plaintiffs, and a judgment being thereon rendered, they have prosecuted a writ of error to this court, for the revision of the same.

      Mufphy, for plaintiffs in error,
    Lyon, contra.
   COLLIER, C. J.

No question is raised in this case, as to the regularity of the bill of sale from Pinkney Caldwell to the plaintiffs, or the evidence by which it was proved to the jury. But the bill of exceptions leads us to enquire—

1. Was there a sale, and at what time, by Pinkney Caldwell, through the agency of Hiram Caldwell, to the defendant, of the slaves sued for 1

2. Was the evidence by which the sale was attempted to be made out, admissible in law ?

1. Though a difference of phraseology is employed in defining the contract of sale, by the elementary writers, yet all concur in the constituents, essential to its consummation. By Powell, it is stated to be a transaction, in Which each party comes under an obligation to the other, and each reciprocally acquires a right to what is promised by the other — (Powell on Con. 4.) Chitty describes a sale, as a transmutation of property from one man to another, in consideration of some price or recompence in value — (Chitty on Con. 108.) And Mr. Chancellor Kent says, that a sale is a transfer of chattels from one person to another, for a valuable consideration, and three things are requisite, viz., the thing sold, which is the object of the contract; the price, and the consent of the contracting parties — (2 Kent’s Com. 367, 1 ed.)

In order to render the contract valid, the thing sold must have an actual or potential existence. Thus, if one person sells to another his horse, which happens to he dead at the time, the contract is necessarily void, the object of it having failed, though the parties were alike ignorant of the fact.

In respect to the price, if property is sold for cash, and the money paid, the contract is complete; so, it is equally perfect, if a credit is stipulated, if no act remains to be done by the purchaser; as, if he has delivered to the seller the proper securities, &c. But if any act remains to be done by the vendee, to entitle himself to the immediate possession of the thing purchased, the contract is inchoate, and the title of the vendor does not pass from him. The distinctions upon this head are many and subtle, and as they do not materially concern the present enquiry, we proceed, for the present, to consider the third constituent of a sale — viz., the consent of the contracting ;parties.

In a contract of sale, it is agreed by all, that there must be a concurrence of the minds of the vendor and vendee. Thus, if a person offer to sell a thing, and prescribes his terms, and another agrees to purchase, but proposes other terms as the condition, there is no sale, unless the seller accept the modification; for until then, there is wanting the aggregatio mentium. What shall constitute a consent in every case, is liable to a great diversity of opinion. Pothier, with his accustomed accuracy of expression, supposes it to consist in the concurrence of the will of the vendor, to sell a particular thing to the vendee for a specified price, with the vyill of the latter to buy the same thing fof that price.

Ia the case before us, it does not appear that the seller of the slaves ever had a personal interview in regard to the sale, but that the proposition to sell, was made by letter, written from a place, distant three hundred miles or more from the defendant’s residence, and from where the slaves were at the time. Cases have frequently occurred, where, under such circumstances, a negotiation has been carried on between the contracting parties by letter — and, as in all probability, they will multiply with the increase of commerce and facilities of correspondence, it is necessary that such rules should be observed, as will subserve the convenience of parties, and protect their interest. While, therefore, it is impossible that there should be a contract, without the concurrence of the parties, it is not indispensable that their wills should concur at the same instant of time; providing the will of the one not concurring at first, is declared, .before the consent of the other is re-called. Thus, although the party making the offer necessarily assents to a sale, before the party accepting, yet his assent must be continuing down to the time of acceptance; and unless the nature of the subject proposed to be sold, or the terms of the offer to sell require immediate action, the willingness to contract is presumed to continue, until the attempts of the parties at negotiation have ceased, unless the proposition is sooner withdrawn — (Adams vs. Lindsell, 1 Barn. & Ald. R. 681.) In the case here cited, the court say, “ the defendants must be considered, in law, as making, during every instant of time their letter was travelling, the same identical offer to the plaintiffs; and the contract is complete, by the acceptance of it by the latter,” The principle of this decision is, that an offer to sell, made by letter, binds the party making it, when accepted, if not reyoked previous to acceptance; up to that time, the locus penitentice of the seller continues, and if he has not exercised it, the bargain will be considered as struck. We are aware, that the doctrine, as we haye stated it, was so qualified by the Supreme court of Massachusetts, as to require not only an acceptance of the offer, but also that it should have been notified to the party making the offer, or his knowledge be inferrable from the fact, that the party accepting, used the proper means to give notice, and a sufficient time had elapsed for its reception. In regard to this qualification, it has been well said, that'if the contract is not consummated until the party accepting, has given notice to the party offering; upon the ground, that the parties must know that their minds meet on .the subject of the contract, the accepting party ought not to be bound,-till he knows the party offering, had not with: drawn the offer before knowledge of acceptance. But the case from Massachusetts does not, in our opinion, harmonise with the current of decision bn the point, or the principles of law — (4 Bing. Rep. 653; Lupin vs. Marie, 6 Wend. Rep. 77; Maetier’s adm’ors vs. Frith, ibid. 103.)

In Eliason vs. Henshaw, (4 Wheaton’s Rep. 228,) it is said, that “ until the terms of the agreement have received the assent of both parties, the negotiation is open, and imposes no obligation on either.” So, in the Circuit court of the United States for Pennsylvania, it was held, that contracts are made by an offer on one side, and an acceptance on the other — (Coxe’s Dig. 192.) These cita-tionsi show, that it is'the assent of the parties that completes the contract. It must, then, be very immaterial, whether the parties themselves mutually possess the knowledge that their minds have met, since, before the stipulations of the contract are executed, they must know it, that each may perform the terms it respectively enjoins.

Since, however, a proposition to sell, imposes no obligation, till accepted, it is, in general, competent for the party offering, to withdraw it, any time previous to acceptance ; and if he do so, a subsequent acceptance will not bind him, though made before the accepting party had notice of the withdrawal. To exemplify : suppose A has offered by letter to sell to B a slave — B accepts the offer, by addressing a letter to A, assenting to his terms: if the latter did not, previous to the date of B’s letter, recall the offer, he is bound by the contract — but if he withdrew it, by a letter sent ioB, before B’s letter was written, the acceptance of the latter would be unavailing for any legal purpose; and this, too, though the letter of withdrawal was not received. This example rests upon the well settled rule, that the concurrence of both parties is essential to a contract of sale, though given at different times.

Having stated these principles, we will now apply them to the facts upon the record. Pinkney Caldwell being in need of money, both in North Carolina and Ceorgia, writes a letter from the latter State, to the defendant, residing in Marengo county, Alabama, in which he proposes to sell to him two negro girls belonging to him, (Caldwell,) but then in the possession of the defendant, for the sum of one thousand dollars, to he paid to Hiram Caldwell, who would execute a bill of sale therefor. Hiram Caldwell, it appears, was the bearer of the letter, and delivered to the defendant, a few days after if was written. Upon the delivery, the defendant expressed his willingness to purchase the slaves, and his readiness then to pay for them; to which the agent replied, that it was not necessary — that he did not want the money, till he was ready to return to North Carolina. In March, eighteen hundred and thirty-five, when Hiram Caldwell was about leaving for North Carolina, he called on the defendant for the money, received it, and made him bills of sale for the negroes, in his own name.-

Now, it is clear, that what passed between Hiram Caldwell and the defendant, upon the former delivering to the latter, the letter of Pinkney Caldwell, did not amount to a sale of the negroes. The proposition of Pinkney Caldwell, was to sell for cash — no money was' paid at that time by the defendant. The agency of Hiram Caldwell, so far as the letter affords evidence of it, was to receive the money, and execute a bill of sale'. The offer to sell, then,- was not met by the defendant, in the only manner in which it could have been, viz., by the payment of the price; and Hiram Caldwell was not authorised to agree upon other terms.

We have seen that the period during which an offer to sell, is considered as remaining open, depends upofi the circumstances of the case, and must be regarded rather as a question of fact, than of law. In the present case, we infer that the object of Pinkney Caldwell, was to sell the slaves, and receive the money by Hiram Caldwell, on his return to North Carolina or Georgia, as it was there, that his necessities required it, and consequently, the offer, unless withdrawn, may be supposed to continue until that time. Such being the interpretation to be placed upon the letter of Pinkney Caldwell, when taken in connection with Hiram Caldwell’s deposition, we must consider whether there is any evidence of the withdrawal of the offer to sell. The only evidence on this point, is the bill of sale to the plaintiffs: this clearly indicates an indisposition or inability on the part of Pink-ney Caldwell, to sell the slaves to any one else, after the plaintiffs became the purchasers; and if the letter to the defendant, was a mere offer to sell, without requiring an advance of money, the sale to the plaintiffs would have operated as a re-call of it. But such is not its character — the letter proposes, it is true, to sell; but it goes further — it designates an agent to receive the money, and to furnish the proper evidence of a transfer of title. To allow the sale to the plaintiffs to prejudice the defendant, without proof that he was cognizant of it before he advanced his money, would be the extreme of injustice. Here, the defendant is in possession of the property, unconscious that the owner had sold it — the owner previously informing him, that he had appointed an agent to sell to him at a fixed price. ‘ A purchase made under such circumstances, must be allowed to relate back to the time the letter was written, in order to sustain the defendant’s title. If Pinkney Caldwell, then, had a title, the defendant must be regarded as succeeding to it. Upon the opposite conclusion, purchasers through an agent of the seller, would be hazardous, as it could not be known where the principal resided, at a distance from the place of sale, that he had not previously sold the property, or withdrawn the authority of the agent.

Thus we have seen, that an offer to sell, not requiring^ its acceptance to be accompanying with the money, may ; be re-called, without notice being first received by the person to whom it is made — that an offer, which requires the payment of the money as the condition of acceptance, cannot be accepted, unless the money is paid— that an authority to a third person to receive money and convey title, binds the principal, unless he has revoked it,- and given notice, either expressly or impliedly to a person, who, upon the faith of the power, pays the money,- and receives a conveyance of title — that the period during' which an offer to sell remains open to acceptance,- depends upon the terms in which it is made, and other attendant circumstances. It will follow, from the ascertainment of these principles, that if the purchase of the. defendant, through Hiram Caldwell, was- not tainted i with fraud, or other circumstances of unfairness, his title 1 must be preferred to that of the plaintiffs-. J

2. The bill of sale from Hiram Caldwell to the defendant, cannot be regarded as the act of Pinkney Caldwell —it does not profess-, on its face, to have been made for him, but is made by, and executed in the name of, Hiram Caldwell alone. The case of Skinner vs. Gunn & Gunn, at this term, is decisive of the point; yet it was competent for the defendant to have resorted to other evidence, to make out his title. No deed or other writing1, is necessary to pass the title to personal estate, and the deposition of Hiram Caldwell was clearly admissible, to show that he had received the purchase money on account of his principal, such evidence would have been equivalent in law, to a bill of sale executed in due form, by Pinkney Caldwell.

It has been argued for the plaintiffs, that even conceding that the defendant sustained his title without the aid of the bill of sale, yet the admission of the bill of sale was an error, for which the judgment of the Circuit court should be reversed. It is a well settled rule of evidence, that where a deed or other instrument is produced, which is attested by a subscribing witness, the party offering it, must call the witness to prove its execution, or else account for his absence; so strict is this requirement, that it is not dispensed with in the case of a deed, by the acknowledgment of the party executing it. The rule results from the legal supposition, that t'he parties themselves, by selecting a subscribing witness, have mutually agreed to rest upon his testimony, in proof of the execution of the instrument, and of the circumstances which then took place, and because he knows those facts which are probably unknown to others. The idea, that the subscribing witness is better acquainted with the circumstances attending the making the instrument,we all know is frequently unfounded in point of fact; yet the legal rule is too firmly established, to be departed from, where the attendance of the witness can be coerced— (See 1 Starkie’s Ev. 330; 4 Burr. Rep. 2275; 4 M. & S. Rep. 350; Fox et al. vs. Rail et al. 4 Johns. R. 477; Abbott vs. Plumbe, Doug. R. 216; 2 East’s R. 187; Johnson vs. Mason, 1 Esp. Rep. 89; Jones vs. Brewer, 4 Taunt. Rep. 46; Call vs. Dunning, 4 East’s R. 53; Bowles vs. Langworthy, 5 T. R. 366; Willoughby vs. Carleton, 9 Johns. R. 136; Manners vs. Postan, 4 Esp. R. 239; Breton vs. Cape, Peake’s Cases, 30; Edinburgh vs. Crudell, 2 Starkie’s Cases, 281; Hogland vs. Sebring, 2 South’s R. 103; Williams vs. Davis, 1 Penn. R. 177; McMahan vs. McGrady, 6 Serg. & Rawle’s R. 314; Heckert vs. Haine, 6 Binn. R. 16 ; Higgs vs. Dixon, 2 Starkie’s Cases, 180; Barnes vs. Trompowski, 7 T. R. 266; Handy vs. The State, use of Townsend, 7 Har. & Johns. R. 42; Williams’ ex’rs vs. The Mayor of Annapolis, 6 Har. & Johns. R. 350; McPherson vs. Rathbone, 11 Wend. 98; Sluby vs. Champlin, 4 Johns. R. 461.) In the case of Bennet vs. Robinson’s adm’r, (3 Stew. & Por. R. 227,) the question came directly before the court. There, the defendant denied that his intestate had executed the note declared on. The plaintiff, who was the assignee of the note, was also a subscribing witness, and haying become interested, offered proof of his hand writing, which being rejected, he proposed to prove the signature of the maker, and his admission that he signed it--whieh evidence was also rejected by the Circuit court. This court reviewed the leading authorities with great care and industry, and conclude, that where the execution of an instrument, whether under seal or not, is properly in issue, the evidence of the subscribing witness is the best, and only admissible evidence, if he be living, and within the reach of the process of the court; unless he has become legally incompetent, from some cause not chargable as a fault, against the party on whom it devolves to make the proof. That evidence of the hand-writing of the subscribing witness to a promissory note, or of the signature of the maker, and his admission of its execution, is not admissible in an action against the maker, where such subscribing witness, after attesting the note, become the assignee thereof, and sues as plaintiff. Whatever might he my opinion, if this case were res integra, it is enough to say, that the question is settled, by authority which I do not feel licensed to disregard.

It was argued for the defendant, that, conceding the general rule to be as we have stated it, the case at bar does not come within its influence — that Hiram Caldwell being an agent, was a competent witness to prove the execution of the bill of sale, though the attendance of the subscribing witness might have been coerced. No authority has been cited to sustain this distinction, and my reflections persuade me, that it is not defensible in principle; yet my brethren differ with me, and think the argument well founded, and maintain that there is no objection, as evidence to the bills of sale offered by the defendant, or to the manner in which they were proved.

It is no objection, on error, that a party has given more evidence in the primary court, than was necessary to maintain his action or defence, if the evidence be unexceptionable in point of law; but he will not be allowed to justify the proceeding below, by showing, that in addition to the illegal evidence, he produced a sufficiency of legal proof for his purposes. AH the evidence adduced under the sanction of the court, is to be weighed and considered of, by the jury; and it will be impossible to say, that their verdict was not influenced by that improperly admitted. What may have influenced one juror, possibly may not have been regarded as of any moment by another; and it is from the utter impracticability of knowing what effect the different parts of the evidence had on the minds of the jury, or by what process, of reasoning they were lead to their conclusion, — that an exception for illegal, whatever may be the quantum of legal evidence, is always available.

Thus, it will be seen, that my own opinion upon the second question, is favorable to a reversal of the judgment of the Circuit court, — but my brethren differing with me, as I have already stated, the judgment must be affirmed.

ORMOND, J.

I dissent from the opinion given in this cause, so far as it asserts that the offer of Gaither to pay the price demanded for the negroes, was not equivalent to a payment. I know of no case, where by the terms of a contract, an act is required to be done by either party, and the party offering to do the act, is prevented by the other party from doing it — that such offer to perform, is not equivalent to a performance. Hiram Caldwell was the bearer of the proposition from the owner of the slave, to Gaither, and his authority was confined to the reception of the money, and executing the bills of sale. Upon the acceptance of the proposition by Gaither, and the payment, or offer to pay, the money to H. Caldwell, the right of Gaither was complete to the slaves. This right could not, on any principle with which I am acquainted, be divested by the act of another.

There could not be any controversy or doubt in this matter, if the money had not, at the instance of H. Caldwell, been permitted to remain in the hands of Gaither. By so acting, I do not understand that the purchase was suspended, but that the contract was closed, and that Gaither was merely a depositary of the money for H. Caldwell. Had the negroes died the next day, there can be no doubt, I think, that he must have sustained the loss.

My argument assumes the transaction, as stated by H. Caldwell, to be true, and that Gaither and H. Caldwell were acting in good faith. If it was a plan devised between them, to give a credit to Gaither, it would not be binding on Pinkney Caldwell. If the agent had refused to receive the money, it would probably have been the duty of Gaither to advise Pinkney Caldwell of the fact, that he might take the necessary steps to. obtain his money; but that is nut this case. If the owner of the slaves, instead of proposing his terms through Hiram Caldwell, had made the offer himself, the sale would have been complete, on the acceptance of the terms by Gaither; and his refusal afterwards to receive the money, or his permitting it to remain in the hands of Gai-ther until called for, could not affect its validity: the case cannot be altered by the interposition of an agent

That a sale is complete, when the offer is accepted, even although the person making the offer by letter, does not know of its acceptance until afterwards, is very conclusively shown by Judge Marcy, in the case of Mac-tier’s adm’rs vs. Frith, (6 Wend. 103.) . This proposition, I understand the majority of the court to affirm: but they suppose, that as the money was" not paid down, when the offer was accepted, the contract was not complete. I think I have shown that this is not the test; that in all cases of sales, an offer to pay, is in law, equivalent to a payment, and that the right to the thing sold, cannot depend upon the acceptance of the price by the seller.


source: Caselaw Access Project

author: GOLDTHWAITE, J.

license: Public Domain

text:
    REED vs. FAWKES.
    1. Afi. fa. levied on a vessel, will not divest a previous lien, ae-quired by a libellant in admiralty.
    Error to the Circuit court of Mobile, exercising admiralty jurisdiction.
    Libel for wages — tried before Harris, J.
    In this case, the steam-boat Fox was libelled in admiralty, by defendant in error, and before the trial, a fi.fa> was levied on the boat, and on a sale under the fi. fa. Reed became the purchaser. On the trial of the case made by the libel, Reed interposed his claim, which was overruled by the court, and a judgment of condemnation rendered in favor of the libellant.
    The judgment below was now sought to be reversed by writ of error.
    Peck, for plaintiff in error.

      Stewart, contra.
   GOLDTHWAITE, J.

The case agreed, which is found in the record, and on which the judgment of the Circuit court was rendered, is neither so full, or so satisfactory, •as might be expected, from the questions involved in this controversy. From it, however, we are enabled to ascertain, that the amount of the libellant’s claim, as well as the existence nf a lien on the steam beat, at the time when the services were rendered, is distinctly admitted ; hut ¡a 'decree of condemnation is resisted, -on the ground, that this lien was subsequently divested, by a sale under •a decree .off condemnation of the boat, in the District court of the 'United States, for the Southern district of Alabama.

When an examination is made, of the facts connected with the supposed decree of condemnation, we find that the boat was restored, after seizure on what is termed an admiralty bond. .Subsequently, a decree was rendered, ordering the steam-boat to be sold, but no process seems to have issued under this decree. The boat was eventually sold, on the first of March, under a writ of Jieri facias, issued against certain individuals, whom we must either conclude to be strangers to the suit in admiralty, or that they became parties to it, by a stipulation to return the boat, to answer the condemnation, or to pay whatever sum should be ascertained to he due by the decree. It is very possible, that such proceedings could have been had in the admiralty court, as would have divested the lien of the libellant in this case; but pone such were had, so far as we can ascertain from the facts stated. The boat was restored — no sale was made under the decree, and the title of all persons remained as before the decree. The sale is made under the ordinary common .law writ of fieri facias, which commands the officer to levy of any of the goods and chattels of the defendant therein named, and can have no lien previous-to its coming to the hands of the officer. We do not know, nor does the case attempt to inform us, what title or claim the defendants in this court had to the steamboat, and it was their title alone, which passed' to the claimant under the sale of the marshal.-

There is nothing in the case, from Which we are au-thorised to infer that the sale was made under the decree of condemnation; and as the lien of the libellant was' prior in point of time, to any which the claimant is-shewn to have derived under the sale by the marshal,, the Circuit court was correct, in decreeing a condemnation and sale.

Let the judgment be affirmed.


author: COLLIER, C. J.

text:
    ARTHUR vs. SAUNDERS, SURVIVING PARTNER, &C.
    1. Where defendant contracts to sell his crop of cotton to plaintiff, and money is advanced by plaintiff, on the faith of the contract, and but a part of the cotton is delivered, — defendant is liable on the coimnon money counts, for the amount received by him, beyond the value of the cotton delivered. And to sustain the action, it is not necessary that the plaintiff should show the return, or an offer to return the cotton received— its value will go to lessen the recovery against the defendant.
    Error to Chambers Circuit court.
    Assumpsit — before Pickett, J.
    The defendant in error declared against the plaintiff in. assumpsit, for goods, wares and merchandise, sold and delivered — work and labor done — money lent and advanced — money paid, laid out and expended, and mohey had and received, &c.
    To which the plaintiff in error pleaded a plea, amounting substantially to non-assumpsit; also the pleas of payment and set-off.

    On the trial, a bill of exceptions was sealed, at the instance of the plaintiff in error, in which it is stated, that it was shown the “ plaintiff had contracted with the defendant for his crop of cotton, which was to be delivered at a, future time, that a portion of it had been delivered, and received by the plaintiff, and that the greater part of the money sued for, and almost all, was money advanced on the faith of the contract. On this state of facts, the counsel for the defendant requested the court to charge the jury, that the plaintiff could not recover for the money so advanced, insisting that the action, should have been on, and for a breach of the special contract. But the court charged, that as to any amount advanced beyond the cotton received, it could be recovered in this action, if the contract had not been fully complied with, on the part of the defendant.”
    The jury having found a verdict against the defendant below, and judgment being rendered thereon, he has brought his case here, and assigns for error — •
    1. That the Circuit court erred in refusing to give the charge required;
    2. That there is also error in the charge, as given to the jury.

      Harris, for plaintiff in error.

      Phelan, contra.
   COLLIER, C. J.

It is an undeniable principle, that where money has been paid by the plaintiff to the defendant, upon a contract which is afterwards rescinded, either in consequence of the nature of the contract, or by consent, or by the act of the defendant, — then, as the consideration has failed, the plaintiff is entitled to recover back his money, in an action for money had and received. But to sustain the suit on this ground, it is necessary that each party should be placed in statu quo, if it be practicable ; therefore, where the plaintiff has purchased a horse or other chattel, with a warranty, which the defendant has broken, if the plaintiff would rescind the contract, he must return, or offer to return, the horse or other chattel, jn a reasonable time. The necessity of making a return, in order to a disaffirmance of the contract, has not been considered as of universal application. In Hancock vs. Tanner & Evans, (4 Stew. & Por. R. 262,) the plaintiff in error agreed, in consideration that the defendants had advanced to him a sum of money, that he would deliver to them a certain quantity of cotton — he delivered a part of it, but not so much as was of equal value with the money advanced. The defendants brought an action, to recover of the plaintiff, for the failure to comply with his contract. The plaintiff insisted, that as the defendants had not disposed of the cotton delivered, as by their contract they had undertaken to do, that he was not liable, on his special contract, or in indebitatus as-sumpsit, for the difference between the value of the cotton delivered, and the money received. The court disallowed his defence, and said that no action could have been sustained on the special contract, as the defendants in error had performed their agreement differently from its terms, and that they were entitled to “ resort to the money counts for a recovery.” Here is a direct authority in favor of the present action. It was not considered necessary that the cotton should have been returned to the seller before suit brought. On this point, it is not improbable, that the court was influenced by the consideration. that the nature of the subject was such, that the purchaser could not be expected to keep it, any longer than was necessary to find for it an advantageous market — and further, that the seller could not have been injured by the failure to return it, as he could have been allowed its full value, in admeasuring the extent of the recovery against him.

Without examining farther the case cited, we are willing to abide by it, — and the consequence is, that the judgment must be affirmed.


text:
    ABERCROMBIE vs. KNOX & CO.
    1. An objection to the form of a declaration merely, is not avail-. able, under our statute of amendments.
    Error to Talladega Circuit court.
    Assumpsit, against the endorser of a bill of exchange —tried before iShortridge, J.
    The plaintiff in error was sued in the Circuit court of Talladega, as the first endorser of a bill of exchange, payable at the branch of the State Bank at Montgomery. Presentment and non-payment were duly alleged, but the declaration, did not negative the payment of the bill, by the drawer or subsequent endorser, in its breach. And for this cause, it was insisted, that the declaration was too defective to sustain the judgment.

      Stone, for plaintiff in error.
    Martin, contra.
   COLLIER, C. J.

The judgment, it may be remarked, is by nil dicil, on plea withdrawn, and in its form, may cure defects, which would be otherwise available. But we do not think the declaration would have been bad on demurrer; the objection, at most, is to th&formx which our statute of jeofails of eighteen hundred and twenty-four, does not tolerate. It was enough, then, to have stated a legal liability by the plaintiff in error, and his failure to discharge it; this is sufficiently done, and if the bill had been paid by either of the other parties, he might have shown it, in his defence — (Vide Hennell’s Forms, 119 ; 3 vol. Law Lib.)

Judgment must be affirmed.


author: ORMOND, J.

text:
    GREGG vs. HINSON ET AL.
    ]. A judgment rendered on a trial of the right of property, before a justice of the peace, may be removed by certiorari to the County court.
    Error to Wilcox County court.
    This was a trial of right of property, before a justice of the peace, in which the defendants in this court were claimants. A verdict and judgment being rendered against them, they applied for, and obtained from the judge of the County court of Wilcox, a writ of certiorari, removing the cause into the County court for another trial, and a judgment was there rendered in their favor. From this judgment, a writ of error is prosecuted to this court.
    The only error relied on is, that the County court had not jurisdiction.
    Stewart, for plaintiff in error.
   ORMOND, J.

Whether the County court has jurisdiction in trials of right of property, on appeal or certiorari from the judgment of a justice, will depend on the construction of the different statutes. The act regulating ■trials of right of property before justices of the peace, was passed on the twentieth of December, eighteen hundred and twenty-two, and authorises an appeal to the next Circuit court. On the twenty-fourth of December, of the same year, an act was passed to regulate proceedings in the courts of law and equity in this State, and provides, that “ appeals shall lie from justices of the peace, to the respective Circuit or County courts, under the same regulations as heretofore prescribed by law, for taking appeals to the Circuit courts!’ — (Aik. Dig. 261.) A section of the same law, to be found in Ai'kin’s Digest, 246, s. 8, gives the judges of the County court concurrent jurisdiction with the judges of. the Circuit court, to grant writs of certiorari and supersedeas, returnable to the County court. Taking these statutes together, we think the jurisdiction is conferred on the County court. The two last cited enactments, are general in their terms, and sufficient to give the County court jurisdiction: they are also subsequent in point of time, and do not conflict with the section first cited. There is, therefore, no error in the judgment of the County court, and it is affirmed.


author: GOL-DTHWAITE-, J.

text:
    THE STATE vs. GAUS.
    1. In an indictment for trading with a slave, the ¿tvermení,- that! it was without the consent of the master or owner,- need not-be proved.-
    Error to Montgomery Circuit court.
    Indictment for trading with a slave, Without consent — -■ tried before Pickens, J.
    In this case, defendant was convicted on an- indictment! for trading with a slave, without the consent of the mas'-ter or' owner. On the trial, the State failed to prove that the slave had not the leave or consent of the master or’ owner. The court below was requested by defendant-to charge the jury, that such proof was necessary to support the indictment, which was refused-.- The court-charged the jury, that if the trading with the slave was proved, the consent or authority was a- matter of excuse,to be proved by defendant — to which defendant excepted,, and how assigns for error.-

      J. A. Campbell, for plaintiff in error.

      Attorney General, contra.-
   GOL-DTHWAITE-, J.

The rule with respect to the-proof of negative averments- in indictments, appears to have been subject to much change in the English courts, —they sometimes ho-ldi-ng,- that the prosecution was bound to establish the negative fact averred ; as in the cases of Rex vs. Rogers, 3 Camp. 654; Rex vs. Hazy ef al. 2 Carr. & Payne, 458 — and at other times declaring, that proof of the act was sufficient to support a conviction, unless the defendant shewed the circumstances which could alone render it lawful — (Rex vs. Turner, 5 M. & S. 206; Rex vs. Hanson, cited 2 Russel on Crimes, 693.)

The case of Rex vs. Rogers, above cited, was very similar to the present, as the prisoner was indicted for coursing deer in an enclosed ground, “ without the consent of the owner but this case was overruled by that of Rex vs. Hazy et al. in which it was held, on an indictment for lopping trees1 “ without the consent of the owner,” that the want of consent might be inferred, from the circumstances attending the act itself — (See also Rex vs. Allen, Ry. & Moody Cr. C. 156.) In the still later case of Rex vs. Hanson, above cited, a conviction was had before two justices, for selling ale without an excise license. The information negatived the defendant’s having -a license, but there was no evidence to support this negative averment; the only evidence being, that the defendant had in fact sold the ale. The conviction was held to be proper.

It is difficult to distinguish this case, from the one now under consideration; as, in both cases, the statute makes use of negative words, but, in effect, prescribes a qualification which must be had, before the act can be lawful. If a contrary rule was to be adopted, with reference to the statute under which the defendant is indicted, it would be difficult, and, in many cases, wholly impracticable, to prove the want of consent; as, in the case of the absence or death of the master, owner or overseer of the slave. On the other hand, no inconvenience or difficulty can exist, in requiring proof from the defendant, of the authority under which he acted, and which cpuld alone excuse the sale. If it is said, that the defendant would be remediless in the event of the death of the master, owner or overseer, by whom the authority, if verbal, was given, it may be observed, that the consent could then be implied from other circumstances attendant on the transaction, if, in point of fact, any such consent was given. If the consent was in writing, no such difficulty could ever arise; and, if personally given, the same witnesses who would give testimony as to the fact of sale, would also, in all probability, establish the consent, if any was given.

We are of opinion, that there was no error in refusing the instruction asked for, or in those which were giyen.


text:
    BIBB vs. M’KINLEY, HOPKINS, AND THE HEIRS OF HENRY CHAMBERS, DEC’D.
    1. A father devised and bequeathed to his Children, (being a daughter and two sons, then infants of tender years,) a large real and personal estate, to be equally divided, between them. The share of the daughter was to be assigned her, if she desired it, when she married or attained her majority. The daughter married, and died about three months thereafter, neither herself or husband having, during the coverture, asked or desired a division of the estate; but the executors still continued to hold the same under the will. On a bill filed by the husband, to obtain the wife’s interest in her father’s estate, it was held that he was not entitled to recover; because the wife’s share had not been reduced into possession during her life.
    ¡2, One who takes possession of the property of an infant, without the authority of law, may be treated as a guardian; but one who lawfully holds as an executor, cannot be treated as a guardian against his consent,
    3, The plaintiff also sought to recover by his bill, a female slave and her children, alleged to have been given to his wife by her grandfather, and delivered to the testator, as her father and guardian by nature; which slaves came to the possession of, and were still retained by the executors. Held, that from the plaintiff’s own showing, his remedy was complete at law, if he was entitled to the slaves, and equity would not relieve him.
    Error to the Court of Chancery at Huntsville.
    Bill and answers heard before Chancellor Peck.

    The plaintiff filed his bill on the equity side of the Circuit court of Madison, which, upon the establishment qf the separate courts of Chancery, was transferred to the Chancery court holden at Huntsville,
    In the bill, it is stated that Henry Chambers, late of-the county Limestone, Alabama, departed this lifje-, in the year of our Lord one thousand eight hundred and twenty-five, having first made and published his last will and testament — a copy of which is exhibited with the bill— That the will was admitted to probate in the Orphan’s court of Limestone, on the sixth day of March, eighteen hundred and twenty-six, and the defendants, McKinley and Hopkins, duly qualified as executors thereof, and have ever since continued to act as such.
    The bill further states, that the executors were also appointed by the testator, testamentary guardians of his children, and up to'that time, continued to act in the twofold capacity of executors and guardians. No other guardians have been appointed; and although McKinley- and Hopkins gave no bond, as such, inasmuch as the estate was directed by the will, to be kept together until the testator’s daughter married, or attained the age of twenty-one years, upon the happening of either of which events, her portion was to be assigned her, if she desired it; yet they have superintended the education of the testator’s children, and defrayed their expenses out of the estate left by him.
    The testator left three children, of very tender years — . via., Mary S., a daughter, and Robert S. and Henry, sons —the two latter of whom are still under the age of twenty-one. By the will, it was directed that the estate should be equally divided between these children — the respective shares of Robert S. and Henry to be assigned them on attainirfg their majority; and the executors were authorised to vest such money as the testator should die possessed of, or as might thereafter be raised from his estate, above what was necessary to the education and support of his children, in such manner as he might think most useful to them.
    It is charged by the bill, that the testator’s estate consisted of a cotton plantation, and about fifty-five negroes, together with farming utensils, household and kitchen furniture — a large quantity of cotton in market — bonds and notes to a large amount, and cash, — in proof of which, the plaintiff refers to the inventory returned by the executors. It is further charged, that the negroes have increased greatly in numbers, and that the income from the estate has greatly exceeded the expences incident to the education and maintenance of the children. Further — the executors, under the power supposed to be vested in them, have purchased a large quantity of land, thus converting personal property to a large amount into real estate: some of these purchases were made prior to the marriage of Mary S. Chambers, and some subsequently.
    The plaintiff alleges that Mary S. owned, at the death of her father, in her own right, a negro woman named Rhoda, about twenty-two years old, and her child, Alice, about one year old — which negroes are returned in the inventory, as belonging to Mary S., having been given to her by her grandfather — that these negroes have increased in number, and that the defendants, McKinley and Hopkins, have had them in their possession, as the undisputed property of Mary S., since the sixth day of March, eighteen hundred and twenty-six, up to the filing of the bill in this case.
    The plaintiff charges, that on the twenty-fifth day of February, eighteen hundred and thirty-five, he intermarried with Mary S. Chambers, with the consent and approbation of McKinley and Hopkins, as her guardians— that they lived together as husband and wife, until the twenty-eighth day of May, of that year, when she departed this life. The plaintiff did not, nor did his wife request a division of the testator’s estate after their marriage, but the same continued as theretofore, in the possession of the executors, under their appointment as such, and as guardians under the will.
    The bill concludes, by praying the usual process against the defendants, that they may answer, &c. — that Khoda, and her child Alice, together with her increase, be delivered over by the executors to the plaintiff, with a reasonable hire for their services — rand further, that one-third part of the testator’s estate be allotted him, and that a pecuniary equivalent be decreed him, for one-third part of all the monies which have been vested in lands —that if the relief asked for, be denied him, the plaintiff then asks such relief as may be proper, &e.
    The view taken of the case, in the opinion of this court, does not make it necessary to make a detailed abstract of the answers: only so much, then, as is deemed material, will be noticed. The defendants, McKinley and Hopkins, admit the death of Henry Chambers — that he made a will, appointing them executors — that they qualified as such, and returned an inventory of their testator’s estate, as stated in the plaintiff’s bill. They also admit, that they were appointed testamentary guardians of the children of the testator, and have directed their education, and defrayed the expences of their maintenance; yet, they explicitly aver, that they never took upon themselves the guardianship, by qualifying as the law provides; but on the contrary thereof,.upon consultation between themselves, shortly after the death of their testator, they determined not to take upon themselves that trust, under the impression, that the powers conferred by the will, would enable them, as executors, to discharge the duties pertaining to the office of guardian.
    The defendant, McKinley, states that four of the ne-groes (naming them) mentioned'in the inventory, have died, and that the surviving slaves, and their increase, including Rhoda and her children, now number eighty-seven.
    The defendants, McKinley and Hopkins, admit that they have purchased with the monies belonging to the estate of their testator, a considerable quantity of real estate, both before and since the intermarriage of the plaintiff and Mary S. Chambers, which they insist they were authorised to do by the will. In regard .to the woman Rhoda, and her children, they say that they cannot admit that they belonged to the wife of the plaintiff. It is true, in the inventory, they say that Rhoda, and Alice, then her' only child, belonged to Máry S., “ as we are in-formedThis information was not derived from their testator^ but from some one after his death; and in stating it in the inventory, they did not intend to decide the question of property between the heirs. They ad-, rnit the intermarriage of the plaintiff and Mary .S-, and She death of the latter, as stated in the bill — -but they insist that neither the plaintiff nor Mary S., during the life of the wife, ever intimated a wish that her portion of the testator’s estate should be set apart to her- . '

      The' defendant, Hopkins, in his answer according to' the statute, claims the benefit of a demurrer tb the plaintiff’s bill.
    The heirs of the testator answer through A. F. Hopkins,- their guardian ad litem, in usual form, calling upon the plaintiff to make good their case by proof, and claiming all advantage that might have been gained by a demurrer.- The deposition of Samuel- Vaughan,- taken at-the instance of the plaintiff, was read at the hearing.The witness states, that in the year eighteen hundred- and eighteen, or the first of eighteen hundred and nineteen,- he brought from Virginia, the negro woman Rhoda,then aged about five or six years.- She' was sent to' Mary S. Chambers, as a present from her grandfather. Rhoda-has twff children — Alice, about twelve years' old, and Wilson,' about seven. The average annual hire of the' woman, with her children,- since H. Chambers’ death,would b'e about twenty-five dollars.
    At the' hearing, the chancellor dismissed the" bill pf& forma, and rendered a decree against the plaintiff for costs; from which decree, the plaintiff has prosecuted a Writ of error to this court.

      J.A. Campbell & McClang,- for plaintiff in error.
    Hopkins,- contra.
   COLLIER, C. J.

In real estate, the husband gains a title only to the rents and profits during coverture, but the estate itself remains entire to the wife, after the death of her husband, or to her heirs, if she dies before him ;- unless by the birth of a child, he becomes- tenant for life by the curtesy. But in chattel interests, the sole and absolute property vests in the husband, to be disposed of at his pleasure, if he chooses to take possession of them; for Unless he reduces them into possession, no property vests in him, but they shall remain to the wife, or to her representatives, after the coverture is determined.

A chattel real, vests in the husband sub modo; as, in the case of a lease for years, the husband shall receive all the rents and profits of it, and may, if he pleases, sell or dispose of it during the coverture: it is liable to execution for his debts: and if he survives his wife, it is, to all intents and purposes, his own. Yet, if he has made no disposition thereof in her lifetime, and dies before his wife, he cannot dispose of it by will: for the husband having made no alteration in the property during his life, it never was transferred from the wife. Such is also the law in regard to chattels personal, or choses in action: as debts upon bond, contracts, and the like; these the husband- may have, if he reduces them into possession, by receiving them, or recovering them at law. And upon Such receipt, they are absolutely,and entirely his own; and shall go to his executors or administrators, or as he Shall bequeath them by will, instead of re-vesting in the Wife. But if he dies before he has recovered or reduced them into possession, so that at his death they still continue choses in action, they shall survive to the wife. In both these species of property, the rule is the same, in Case the wife survives the husband : but in case the husband survives the wife, it is very different at common law, with fespect to chattels real, and choses in action ; for he shall have the chattel real, by survivorship, but not the chose in action.

In respect to chattels personal, or choses in possession, which the wife hath in her own right, as ready money, &c. the husband acquires an immediate and absolute property therein by the marriage, not only potentially, but in fact, which never can again re-vest in the wife, or her representatives — (2 Bla. Com. 433, 434, 435.) Such is the law, as laid down by the learned ' commentator upon the English Law; and it was affirmed by this court in Johnson adm’r vs. Wren, 3 Stew. Rep. 172; Mayfield vs. Clifton, ibid. 375; and in Hogan vs. Bell and wife, 4 Stew. & Por. R. 310, — so far as it relates to the personal chattels of the wife in action.

In Mayfield vs. Clifton, the plaintiff filed his petition in the Orphan’s court., in which he represented that Thomas Murphy died in eighteen hundred and fifteen, possessed of negroes and other personal property: that his .estate was free of debt; that he left his widow, Frances J., and two infant children; Nancy, of whom the petitioner was guardian — and John, of whom Clifton was guardian — that the widow was appointed administratrix, of the estate by the Orphan’s court, in which the petition was filed, and shortly afterwards intermarried with Cliff ton, and died in eighteen hundred and twenty-seven. Whereupon, the plaintiff prayed that the estate might be distributed according to law. The facts stated in the petition were admitted — and further, it was agreed that the property in question was in the possession of Frances J., from the death of Thomas Murphy, “ till her second marriage, and from that event, in the possession of herself and the said Clifton, till her death, which occurred at the time mentioned in the petition; and that no disr tribution of said property was ever made between the paid Frances, in her lifetime, and the children of Murphy.” The Orphan’s court was of opinion, that Clifton was entitled to the distributive share of his deceased wife, although there had been no distribution made in the lifetime of the wife: but this court reversed its decree, considering it necessary to entitle Clifton to his wife’s distributive share of her estate, that his p>ossession should have been quasi, husband, whereas the facts Showed that his possession was only as administrator in fight of his wife. That the law was correctly stated, we think will not admit of serious controversy — (Wallace et ux. vs. Taliaferro et ux. 2 Call’s R. 447; Schuyler vs. Hoyle, 5 Johns. Ch. R. 196; 2 Kent’s Com, 115, 116; Baker vs. Hall, 12 Vesey’s F. 497; Mitford vs. Mitford, 9 Yesey’s F. 95, 96; Carr vs. Taylor, 10 Vesey’s F. 579; Wildman vs. Wildman, 9 Vesey’s R. 177; Nash vs. Nash, 2 Mad. F. 139; Toller’s Ex’rs, 220, 221; Clancy’s Rights of Women, 2; Sturgineger vs. Hannah et al. 2 Nott & McC. F. 147.)

Property may be said to be in possession, where a man hath both the right, and also the occupation of the thing —it is ip action, where a man hath not the possession, but merely a right to possess the thing. In the latter pase, the thing is said to be rather in potentia than in esse; though the owner may have as absolute a property in, pnd be as well entitled to, such things in action, as to things in possession — (2 Bla. Com. 396, 397.)

Having stated these principles, by which the, marital rights of the husband are to be determined, we proceed fo consider the nature of the interest which the plaintiff acquired by marriage, in the wife’s undivided portion of her father’s estate. To the real estate of the wife, we do not understand that the plaintiff asserts any title, but he seeks an equivalent in money, to the extent of one-third the value of the realty belonging to the testator’s estate, which the executors have purchased. He further demands an equal interest with his wife’s surviving brothers in the personal estate in possession, and in the debts due, &c. The will clearly shows, that the executors possessed the entire confidence of the testator, and confers a large discretion upon them ; yet, as the view we take of the case, does not require an exposition of the will in this particular, we decline to notice further the legality of the powers they have exercised. We will, however, examine the plaintiff’s pretensions, upon the hypothesis that the investment of money in land was un-authorised, and that for the purpose of distribution, it must still be regarded as money. '

We have already seen, that if the share of the plaintiff’s wife, in her father’s estate, was regarded as in action— that not having received or recovered it, he has no right to possess it now. Clancy, in his Rights of Married Women, 109, in enumerating chases in action, mentions “ debts by obligation, contract, or otherwise, for rent, money lent, money had and received, or for the price of work and labor, &c. &c.; also legacies, shares of intestate’s estates, money in the funds, or any other claim to personal property, which has not been reduced into possession.” To the same effect, is Johnson, adm’r, vs. Wren, 3 Stew. R, 175, and Hood vs. Archer et al. 2 Nott & McC. R. 149- The interest of the plaintiff’s wife,was a right to ail undivided third of her father’s estate, in the hands of his executors, and according to the authorities Cited, was in action only.

It has, however, been argued for the plaintiff, that the wife’s interest was not a mere right to the distribution of property in the bands of the executors of her deceased father; but the defendants, McKinley and Hopkins, having been appointed by the will, guardian’s of the testator’s children, and having, in effect, performed the duties pertaining to that olffce, should be held*to account as such, and the possession be taken to have been in that Character.

In Magee vs. Toland, (8 Porter’s R. 36,) it was decided, that the possession of the guardian, is the possession of the ward; and the ward having married, the possession was eo inslanti, transferred to the husband, and the property should be regarded as in his possession, as much as if there had been an actual manucaption. In that case, there was but one slave in controversy, and no one claimed an interest in that slave but the wife of Toland, so long as she lived,

In the case at bar, both the executors explicitly deny that they ever accepted the guardianship of the heirs of their testator, as provided by law in the case of testamentary guardians — (Aik. Dig. sec. 10, 11, p. 221, 222.) They admit that they have discharged the duties of guardians of all the children, and that some of the receipts given them for disbursements about their maintenance, describe them as guardians, but they considered it very immaterial, as they designedly omitted to take upon themselyes, any other trust than that of executors, and the receipts referred to, have been allowed in the settlement of their accounts, as executors. True, there arte instances in which persons taking possession of the estates of infants, have been held to account as guardians, though they may never have received any judicial appointment.

Thus, in Lloyd and wife vs. The Ex’rx of Cannon et al. (2 Dess. Rep. 232,) it appears that Cannon, the testator, (a connection of Mrs. Lloyd,) on the death of her father, took charge of her person and property, and took out such authority as was then to be obtained from the British Board of Police, which was the only semblance of civil authority in Charleston, then held by the enemy as a garrison town. After the restoration of the American government, Cannon, without taking out letters of administration, continued to manage the affairs of his young relation, who lived in his family. A questioh was made, whether Cannon should not be regarded as a wrong-doer, and so not entitled to commission. The court considered that he should rather be commended than censured," for getting possession of the estate as hé did, though he should afterwards have applied for letters of administration; yet he was regarded as a trustee, and as such, equitably entitled to his commissions.

So, if a man intrudes upon an infant, he shall receive the profits but as guardian, and the infant shall have an account against him in chancery, as guardian; for equity will consider him as a trustee. If, however, the infant so elect, he may treat the intruder as a trespasser— (Newburgh vs. Bickerstaff, 1 Vern. R. 295; Morgan vs. Morgan, 1 Atk. R. 488; Mellish vs. Mellish, 1 Sim. & Stu. R. 138; 2 Fonb. Eq. 235, 236.)

The cases cited are unlike the present. In Lloyd and. wife vs. The Ex’rx of Cannon et al. the acts of Cannon were conservative, and considered as justified by the condition of the country at the time — clearly manifesting an intention not to benefit himself alone, but to protect the interest of his young relation. Had he been regarded in equity as a Wrong-doer, his services, though meritorious, would have been uncompensated.

The cases cited from Vernon, &c. only prove that an infant may charge one who tortiously possesses himself of bis property, either as his guardian or a wrong-doer. ‘This right of election results from the fact, that the possession is unafithorised, and it may be more beneficial to the infant, to treat the trespasser as a guardian, than in his true character.

But in the case at bar, the defendants, McKinley and Hopkins-, had a right to the possession of the estate left by their testator, under the express terms of the will. And though they might have accepted the guardianship Of the heirs, and as such, have directed their education; yet it might ’well be questioned, that considering ike char-meter of the trusts imposed upon them by the will, whether they should not, as executors, have retained the possession of the property-. Be this as it may, in point of law, they never were guardians. As executors, they might, and actually did possess and retain the estate committed to their charge, together with its increase: and we cannot now say that they assumed another office, and assign to it their possession.

It is not pretended, that any distribution of the property in the hands of the executors, was at any time during the life of the plaintiffs wife, made or desired. And even supposing that the testator may have left lands which vested in his heirs, yet as we have no statute similar to that of the 32 Hen. Till, c, 37, which gives to the husband arrears of rent due to the wife before her cover-ture, in case of her death, the plaintiff cannot recover any thing for rent — (See Ognel’s case, 4 Co. R. 51.) • Nor have we any statute like the 29 Car. II, c. 3, which enacts, that the husband shall have administration of all his wife’s personal estate, which he did not reduce into his possession during her life, and retain the same to his own use. From a view of all which, it will follow, that the plaintiff can claim nothing under the will of his-wife’s father.

In respect to the woman Rhoda, and children, which are said to have been given to the wife of the plaintiff by her grandfather, it is argued for the defendants, that these cannot be recovered; or if recoverable, not by suit in equity — That the possession of the executors Was adverse to an immediate and exclusive possession in the wife, and not as bailees for her; or if not adverse, their remedy was complete at law. If the first objection is well taken, it is clear, that the possession did not vest ini the wife, by operation of law, and consequently, nothing passed to the husband by virtue of the marriage. We will, however, waive the decision of this question, since it is clear, that if the plaintiff had such a possession of these slaves, as gave him the title, his legal remedy is adequate, and of consequence,- chancery cannot afford him redress.

The hire of Rhoda and her children, must be regarded as a chose in action, and cannot be recovered; unless it be as an incident to a suit in which the slaves themselves are recovered.

The result of our opinion is, that the decree of the chancellor is correct, and it is therefore affirmed, with costs.


author: ORMOND, J. COLLIER. C. J.

text:
    M’CUTCHEN’S ADM’RS vs. M’CUTCHEN.
    1. Proof, that a witness whose testimony has been taken by commission de bene esse, started before court to move with his family to a neighboring State, is sufficient to authorise the reading of the deposition.
    2. A witness, whose ■ credibility is impeached, is sufficiently sustained by proof that “ his general character was good, and that he was entitled to full credit on his oath.”
    3. An unconditional grant of personal property, is perfected by the delivery of the deed to a third person, for the use of the grantee, though the possession may remain in the grontor.
    4. Such a deed cannot be revoked by the grantor alter delivery, as the deed vests the title to the property, and the right of possession in the grantee.
    5. The intention of the grantor in making the deed, when ascertained from the deed alone, is for the court to determine, and not the jury.
    6. As between the donor, and those claiming under him and the donee, a gift of personal property by deed, is valid, though possession remain with the grantee.
    Error to J'acksou Circuit court.

      Detinue for slaves — tried before Lane, J.
    John McCutchen, of Jackson county, in his life time, executed a deed of conveyance of sundry negro slaves, to his grandson, William W. McCutchen, then in the State of Mississippi, and delivered the same to John H. Gray, to be handed to W. W. McCutchen. John McCutchen died in January, eighteen hundred and thirty-five, and shortly afterwards, Gray handed the deed to said W. W. McCutchen, who then obtained possession of the negroes mentioned in the deed. The suit was brought by the plaintiffs, administrators of John McCutchen, against the grantee, for the recovery of the slaves. Plea — non-delinet. Yerdict and judgment for defendant.
    The deed was as follows:
    “ To all people to whom these presents shall come — I, John McCutchen, do send greeting: “Know ye, that I, the said John McCutchen, of the county of Jackson, and State of Alabama, for, and in consideration of the love, good will and affection, (and services rendered,) by my loving grandson, William Walker McCutchen, have given and granted, and by these presents do freely give and grant, unto, the said William Walker McCutchen, his heirs, executors or administrators, a negro woman named Mina, and her children, to wit, Sally, (a girl,) Taletha, Anna, a boy Andrew, and Alexander; also a girl, an infant named Mary. To have and to hold the said ne-groes, to him the said William Walker McCutchen, his heirs, executors or administrators, from henceforth, as his proper right, absolutely, without any manner of condjh tion. In witness whereof, &c.
    John M’OtmTTKN, [seal.]

      Signed, sealed and delivered, in presence of John H. Gray.”
    The testimony of Gray, in support of the deed, was taken by commission, he being about to leave the State. The deposition was objected to, — when proof was made that Mr. Gray had started for Arkansas, and the objection was overruled. The credit of Gray being impeached, proof of his “ good character, and that he was entitled to full credit on oath,” was made by the deposition of James B. Graham.
    Upon this evidence, plaintiffs requested the court to give the jury the following instructions:
    1. That if it was part of John McCutchen’s instructions to Gray, and his intention in making said deed, that the property given therein, should not pass into the possession of the defendant till after his death, and the property was not in fact put in his possession till after the death of said John McCutchen, it was not a good gift, — which instruction was given with this qualification : that if the deed remained in Gray’s hands unrevoked, till after donor’s death, and was then delivered, it completed and perfected the gift;
    2. That to constitute a good grant, or gift of personal property, the possession of the property must pass out of the donor, and vest in the donee immediately; and if it do not so pass, the grant or gift is not a good one, — which was refused to be given as asked; and the court charged, that if the deed was delivered, the delivery perfected the grant or gift;
    3. That if the deed was deposited with Gray, to be delivered to defendant, in the event that John McCutchen should die before his return to the county, and defendant did return to the county before his death, that upon such return before the death, the agency and authority of Gray ceased: that he had no power to deliver the deed, and any delivery made by him after the death of John Mc-Cutchen, was not good, — which was refused; and the court charged, that if the deed remained in Gray’s hands unrevoked, till donor’s death, and was afterwards delivered by him, such delivery was good, and perfected the gift ;
    4. If they believed there was not such a possession of the property in defendant, as would take away John McCutchen’s election during his life, whether to deliver it or not, that for the want of such possession, taking away his power of election, the gift was not complete— which instruction the court refused to give;
    5. That if defendant obtained possession of the property after the death of John McCutchen, without the authority or consent of any person qualified to give it — such possession would not perfect the gift. Refused.
    6. If the possession of personal property, given whether by deed or by parol, do not pass out of the donor at the time of the gift, such gift is not good' — which instruction was refused;
    7. That if it be a condition of a gift of personal property, that the thing given, shall not be delivered till a future day, and the thing given is never delivered during the life of the donor, the gift is not good, whether it be by deed or parol — which was refused.
    The court charged, that the delivery of the deed in this case, to the witness Gray, amounted to a delivery of the property given, and the delivery to him was a delivery to defendant. [
    The charges given, and the refusals to charge as requested, were excepted to by plaintiffs.
    Plaintiffs now assigned, that there was error—
    1. In admitting Gray’s deposition ;
    2. In admitting the deed of gift j;
    3.' In admitting Graham’s deposition ;
    4. In admitting proof of the hand-writing of John
    McCutchen;
    5. In refusing to give the instruc giving the charges objected to. ions as asked, and in
    ■Robinson, for plaintiffs in error.
    Hopkins, contra.
   ORMOND, J.

Several preliminary questions are raised on the record in this case, and have been made in argument, which it will be proper to determine, before proceeding to the examination of the main question.

The first of these, is an objection to the reading of the deposition of John H. Gray, because it was not shewn that he had left the State. The deposition of Gray had been taken by authority of the statute authorising the deposition of witnesses about to leave the State to be taken. As the statute declares that; depositions shall be taken de bene esse, it was necessarjr for the party offering it,.to show that the witness wa$ not then within the jurisdiction of the court. For this; purpose, proof was introduced, that the witness, Gray, j“ had started to move to the State of Arkansas with his fapiily, some short time before court, but expected to stop and stay some time in Morgan county, with his relations.- We think this was sufficient to authorise the reading of the deposition, unless it was shown that the witness had not carried his purpose into effect. To hold otherwise, would be to require the party wishing to use such testimony, to follow his witness to the limits of the State to exclude the 'presumption, that he was not in the State at the time of the trial.

The deposition of Gray having been read, proof was-offered, conducing to impeach his credibility : to sustain him, the defendant below, and in this court, read the deposition of James B. Graham, who deposed, that he became acquainted with Gray in the year, eighteen hundred and eighteen, and was acquainted with him for three or four years in the county of Morgan, and at that time, his-general character was good, and that he would be entitled to full credit on his oath. This testimony is objected to, because the witness did not state that he knew the general character of Gray for veracity. To enable a witness to testify to the credibility of a person; he must know the general estimation in which he is held by his neighbors: this constitutes his general character. We cannot agree with the counsel for the plaintiffs, that a ■man notoriously wanting in veracity, could be considered to be a person of good general character. This necessary constituent of good character, must be included in the general terms employed by the witness, especially, as he adds, that “he would be entitled to credit on his oath.”

The defendants below were also permitted to prove the hand-writing of John W. McCutchen, the maker of a deed, the execution of which the witness, Gray, had proved — and it is insisted that this was improper, because evidence had been offered by the plaintiffs, conducing to show that McCutchen, the maker of the deed, was not competent to make a deed, from imbecility of mind. On looking into the bill of exceptions, it appears that testimony was offered by the plaintiffs, to show the imbecility of mind of John McCutchen, but conceding that the testimony objected to, would have been improper on that issue, (which it is not necessary now to determine,) that could not have prevented the defendant from introducing it for another purpose for which it was competent, and to which object it would have been restrained, on motion by the court. The motion, therefore, to exclude it generally, was properly rejected.

These preliminary questions out of the way, we will now proceed to consider the principal question in the cause, arising out of the different charges given and refused by the court. These charges all relate to, and grow out of, a gift or grant of the sldves in controversy, alleged to have been made by John McCutchen, to the defendant,-his grandson. It will aid us in the investigation of the points presented by the bill of exceptions, to'consider the general properties of instruments of this character.

A pure gift of personal property requires for its consummation, a delivery of the subject of the gift. Where a gift of personal property is made by deed, for a good consideration, the delivery of the deed transfers the right to the property, and would, it seems from the authorities, be valid between the parties, without an actual delivery of the property itself. The deed is evidence of the transfer of the title, and if the possession of the chattel should be afterwards withheld,- a suit could be maintained for its recovery, and the maker of the deed would, be estopped from denying the validity of the gift.

It is equally clear, that at common law, a deed granting personal property for a valuable consideration, as between the parties to the deed, is conclusive against the grantor; and that in a suit against him, on the deed, he will not-be permitted to question either the adequacy of the consideration, or the fact that such a consideration was given — (Burn vs. Winthrop, 1 Johns. Chan. 329; Banks, adm’r, vs. Marksberry, 3 Littell, 275; Jones vs. Jones, 6 Conn. R. 111.) The same decision, we are informed, has been made by the Supreme court of Tennesr see, reported in 2 Yerger, 562; by Judge Story, in 1 Gallison’s R. 419, and by the court of King’s Bench,- reported in 2 Barnwell & Alderson, 551; see also the case of McCoy vs. Moss & Newbery, 5 Porter, 88. In the case cited from 3 Littell, the court held, that a deed conveying personal property, founded on good consideration, and providing for the possession of the property by the donor, until his death, could, after his death, be enforced at law.

It is insisted by the counsel for the plaintiffs, that our statute authorising the consideration of sealed instruments to be enquired into at law on a special plea, has changed the common law in this respect. As no evidence impeaching the consideration of the deed in this ease, was offered by the plaintiffs in error, or charge asked for on that, point, it is not necessary to determine Whether the statute is confined to bonds for the payment of money, or whether it extends to cases of deeds for the conveyance of personal property. As the services of the defendant, which are recited in the deed, will constitute a valuable consideration, this deed may be considered either as a gift made on good consideration, or as a grant on a valuable consideration — upon which last supposition, it would be equivalent to a sale: to the validity of Which, possession is not necessary, as between the parties to it, though it might be void as against creditors— (17Mass. R. 113, 114; Kent’s Com. 454, and the note to the last edition.)

With this view of the law, we will now proceed to consider the charges of the court, as given and refused. The deed out of which the controversy in this case arises, Is an unconditional conveyance by John McCutchen, to the defendant, who was his guardian, of certain negroes in the deed mentioned, for the consideration, as expressed in the instrument, “of the love, good will and affection, and services rendered, by my loving grandson,” —and is unconditional. The deed, according to the proof of Gray, the subscribing witness, was delivered to him after its execution, to be held by him for the use of the defendants; and in the event of the death of the grantor, during the absence of the defendant, who, at the time, was in the State of Mississippi, the witness was to take the necessary steps to secure the property for him. After the death of the grantor, the witness delivered the deed to the defendant. The slaves in the deed mentioned, remained in the possession of thegrant- •or, until his death, when they came to the possession of the defendant.

The following instructions were asked for by the plaintiffs’ counsel:

1. That if it was part of John McCutchen’s instructions to Gray, and his intention in making said deed, that the property given therein, should not pass into the possession of the defendant till after his death, and the property was not in fact put in his possession, till after the death of the said John McCutchen, it was not a good gift; which was given with this qualification — that if the deed remained in Grays hands unrevoked, till after donor’s death, that it completed and perfected the gift.

The charge thus given by the court, is liable to several objections, it is erroneous, in supposing that the grant was not perfect by the delivery of the deed to Gray, for the use of the defendant, but required to consummate it a delivery to the defendant himself, it was also, erroneous, in referring to the jury the question of the intention of the donor in making the deed. The intention of the donor was to be gathered from the terms of the deed, which it was the province of the court to expound, and not the jury. The charge given was bad also, because it supposes that the donor had power to revoke the deed after delivery: the court, therefore, should-have refused the charge. But the plaintiff cannot complain that an erroneous charge was given at ins instance — nor can the wrong qualification annexed to it by the court, avail him here, as it was an error against Ute defendant, and could not, by possibility, prejudice him.

The delivery to Gray, if in fact made, and unconditional, vested the title to the property, and. thq right to the possession, in the grantee. A delivery to Gray, was á delivery to the defendanta power of revocation existing in the grantor, is contradicted by the deed itself, and utterly inconsistent with the fact of an unconditional delivery of the deed.

The fact,'that the property remained in the grantor’s hands until his death, and that the deed remained with Gray, were circumstances which the jury might have, and doubtless did consider, in enquiring whether any delivery was made, or if made, whether it was unconditional.

The second charge moved for is, that to constitute a good grant, or gift of personal property, the possession of the property must pass out of the donor, and vest in the donee immediately; and if it do not so pass, the grant ór gift is not a good one. This charge the court refused, but charged the jury, that if the deed was delivered, such delivery perfected the grant or gift.

There was no error in the refusal to give this charge, or in the one given. It has already been stated, that by the delivery of the deed, the title to the property passed, and did not require actual possession of the property, to consummate or perfect the grant. The law is correctly laid down in the charge given.

The third charge moved for, is, that if the deed was deposited with Gray, to be delivered to defendant, in the event that John McCutehen should die before his return to this county; and defendant did return to the county before his death, and upon such return before the death, the agency and authority of Gray ceased, that he had no power to deliver the deed, and any delivery made by him after the death of John McCutehen, was not good— which the court refused, and charged, that if the deed remained in Gray’s hands unrevoked till donor’s death, and was afterwards delivered by him. such delivery was good, and perfected the gift.

The charge moved for, was correctly refused by the court, if for no other reason, because it was abstract. No facts appear in evidence, to warrant the conclusion, that the deed was to be delivered to the defendant, only on the contingency supposed. The observations made on the first charge of the court, apply to the charge here given. The court presumes a power in the grantor to revoke the deed. The deed was delivered unconditionally, according to the testimony of Gray — no such power, therefore, existed; but, as before remarked, this was an error in favor of the plaintiff in error.

The fourth charge moved for is, if they believed there was not such a possession of the property as would take away John McCutchen’s election during hi? life, whether to deliver it or not, that for the want of such possession taking away his power of election, the gift was not complete — which was refused.

This instruction, like most of the preceding, is grounded on the false supposition, that the validity of the grant depended on the actual possession by the defendant, of the slaves granted, and was correctly refused.

To the same effect, are the fifth and sixth instructions, and which were therefore properly refused.

The seventh instruction is, that if it be a condition of a gift of personal property, that the thing given shall not be delivered till a future day, and the thing given is never delivered during the life of the donor, the gift is not good, whether it. be by deed or by paro! — which was refused.

The only evidence of a gift, was the deed, which was absolute and unconditional in its terras. The motion for an instruction, therefore, as to the effect of a gift not in proof, was an abstract proposition, and if given, could only have misled the jury.

Finally, the court charge:! the jury, that the delivery of the deed in this case, to witness, Gray, amounted to a delivery of the property given, and that the delivery to him, was a delivery to the defendant. This charge is, in a few words, the law of the case. It is, however, insisted that the court invaded the province of the jury, and charged, that the deed was actually delivered. •

Whether the deed was in truth delivered to the witness, Gray, by the grantor, was a fact which appears to have been warmly contested in the court below, as an attempt was made to impeach his credibility, he being the only witness to that fact; it. is not, therefore, at all probable, that the court would undertake the decision of the fact of delivery. Taking this in connection with the other charges, it is quite dear that the court was making an effort to simplify the case, after the multifarious charges which had been moved for by the plaintiff, and to put it on clear and intelligible ground.

This court will not, on slight grounds, presume that the presiding judge will step out of bis proper sphere, and undertake the decision of controverted facts. Whether there was a delivery of the deed, or whether it was ever executed by the grantor, depended on the credit which the jury might give to the witness, Gray, The question controverted between the court and the counsel, was not the fact, but the effect, of the delivery proved by the witness; and so we cannot doubt the court was understood by the jury, and so meant to be understood.

It is also contended by the plaintiffs’ counsel, that the plaintiffs, as the representatives of John McCutchen,were entitled to the possession of the properly, for the purpose of paying debts, even conceding that the title of the defendant was good.

The proof does not show when the defendant obtained possession of the slaves; it is, however, to be inferred from the record, that he took possession at the death of the grantor, and before the grant of letters of administration. If the property had come to the hands of the plaintiffs, as the representatives of the maker of the deed, through whom the defendant claims, the position of the counsel might even then he questionable. But for want of such possession, the slaves cannot bo considered as assets in their hands, admitting they are subject to the claims of creditors, because possession did not accompany the deed. The representatives of a deceased person, can maintain no action to recover property, which the deceased himself could not have maintained — (See Roberts on Fraudulent Con. 593 — where it is laid down that the fraudulent donor may he treated as executor de son tort —and authorities there cited ; and sec also Williams on Executors, 1020, and authorities there cited.)

The judgment of the court below is, therefore, affirmed.

COLLIER. C. J.

I concur in the judgment of the court in this case, but as it is not necessary, I express no opinion upon the question, whether a deed of gift of personal property passes the title to the donee, if the thing proposed to be given, is not delivered. It sufficiently appears from the deed under which the defendant claims title, that it Is founded on a valuable consideration.


text:
    PHILLIPS, ADM’R, &C. vs. THOMPSON & WIFE, EX’R & EX’RX, &C.
    1. Where defendants in the Orphan’s court, are sought to be charged as executor pad executrix, they cannot insist upon a credit, for what the executrix is entitled to individually.
    2. The Orphan’s court, in adjusting the claims of parties before it, has no jurisdiction of an off-set, consisting of a claim on an estate not under its control.
    3. An administrator is entitled to compensation for services, and also to retain money expended by him about the business of the estate.
    Error to the Orphan’s court of Madison county.
    In this case, it appears that Mrs. Thompson, who was the wife and executrix of Mills Ely, Intermarried with her present husband, who became an executor in, her right. The estate of the testator being reported insolvent to the Orphan’s court of Madison, (from which the defendants received letters testamentary,) the final settlement of the same was brought before the the judge of that court; whereupon the plaintiff, as administrator of Ann Hancock, (under a grant of administration from the court óf some county in Virginia,) presented a well au-' thenticated claim against the estate of the defendants testator. Mrst Hancock left three children living at the time of her death, one of whom married, and died, with-out having received her portion of her mother’s estate.Mrs. Thompson,-it appears, was a daughter of Mrs. Ham-cock, and claims a distributive share of the estate of her mother, and set up her claim on her mother’s estate, as-an off-set-to the demand of Phillips. The Orphan’s- court allowed- Thompson and his wife, to retain as her dis--tributive share of the estate of Mrs.- Ann Hancock,- one-third of the demand of Phillips, &c- without allowing, Phillips commissions for settling Mrs-. Ha-neoek’s estate to correct which decree of the Orphan’s court, Phillips sued out his Writ of error. A part of the estate of Mrs-Hancock,- it appeared- also, was yet in the State of Virginia, where she died.

      Crabb & Cochran,- for plaintiff in error-

      Me Clung, contra.
   COLLIER, C. J.

It is objected to the decree of the Orphan’s court, that it is erroneous—

1. Because it allows the defendants to retain as the wife’s distributive share of the estate of Ann Hancock, the plaintiff’s intestate, one third of the plaintiff’s demand — and further, diminishes his recovery, by setting off the wife’s distributive share of so much of the intestate’s estate, as was in the State of Virginia ;

2. That it makes these deductions without any allow-anee to the plaintiff, (as administrator of Ann Hancock,) for commissions in settling his intestate’s estate, or to reimburse his expenditures for costs, &c.

1. The Orphan’s court possesses a limited jurisdiction in testamentary matters, so that those claiming interests in the estates of deceased persons, in order to their adjustment, are sometimes compelled to resort to another tribunal, possessing a more enlarged power over the subject — (Leavens vs. Butler and wife, 8 Por. R. 380.) There are many equities which may arise in the settlement of an estate, between its representatives and a creditor, dis-tributee, or legatee, which can only be determined in equity. If there were mutual demands existing between the testator and intestate and a creditor; upon the estate’s being reported insolvent by the executor or administrator, it would certainly be proper to examine the accounts on both sides, and only render a decree for the balance in favor of the creditor, according to the scale of payment that might be fixed on. But such is not the present case. Ann Hancock was not indebted to Mills Ely to any extent — the indebtedness was all in her favor, and her administrator, in attempting to coerce payment of Ely’s executor and executrix, is met with a claim set up by the latter, (who was the daughter of the plaintiff’s intestate,) to a distributive share of her mother’s estate. The defendants, it is clear, cannot be allowed to lessen the plaintiff’s demand, by showing that they are authorised to call on him, to pay over to them Mrs. Thompson’s portion of this estate. The principles applicable to offsets at law, inhibit such a pretension: — there is a want of mutuality in the respective claims. The defendants are sought to be charged as executors, while they insist upon a credit, for what the executrix is entitled to individually.

Apart from this view, the Orphan’s court of Madison could only exercise a jurisdiction over the estate of Mills Ely, whereas by its decree, it has determined not only what the plaintiff was entitled to from that estate, but what was the interest of the defendants in the estate of Ann Hancock.

In allowing to the defendants, Mrs. Thompson’s share of her mother’s estate, the course of administration of that estate, according to the laws of Yirginia, may have been disturbed. Mrs. Hancock may have left debts unpaid, and her daughter, who has died since her decease, may have been the cause of incurring debts which are still unsettled. In any view, the jurisdiction assumed by the Orphan’s court, cannot be maintained. •

The jurisdiction of chancery is ample over this subject, and it is not improbable that the defendants may make out such a case, as to entitle them to its interference— (Dobbs et al. vs. Distributees of Cockerham, 2 Porter’s R. 341.)

2. There can be no doubt but an administrator is entitled to a just compensation for his services in settling an estate. What would be a proper allowance, must depend upon the circumstances attending each particular case. So, if an administrator has expended money about the appropriate business of the estate, he should be allowed to retain it on settlement.-

Even supposing, then, that the Orphan’s court was au-thorised to '’have given to the defendants, Mrs. Thompson’s share of Mrs. Hancock’s estate, yet it should have been charged with its due proportion of commissions and costs to the plaintiff, as its administrator.

Whether the surviving husband of Minerva Hancock, is entitled to her personal estate, not reduced into possession in her life-time, must depend upon the laws of Virginia; and as the question cannot regularly arise before the Orphan’s court, it need not be here considered.

In both the grounds of exception to the decree, there is error; — the decree is consequently reversed, and the case remanded,