author: Collier, J.t

text:
    GATES versus M’DANIEL.
    QUESTION IN THIS CASE.

      Relative to attachment, for cpntemjpt of Court,- ly breach of injunction.

      1. The Circuit Courts are vested with authority to punish a contempt, committed in the breach of an injunction,'granted by a judge thereof — where such injunction has been dissolved on hearing, and if has been reversed, and again re-instated, by the judgment of the Supreme Court, on error.
    2. Where contempts are committed, by violation of an order or decree of Chancery, the English practice, in such cases, should he adopted here.
    S. This practice is, not to direct a seizure of the body, in the first instance, but to give notice that a motion will be made, that the party guilty of the contempt, stand committed: and if not ready to show cause, the court usually gives day; and then, on a hearing of the affidavits on both sides, decides.
    4. A judge of the Circuit Court, has no authority, in vacation, to order the body of a defendant to be taken, on a charge of having violated an injunction.
    5. But where such order has been made on a petition, supported by affidavits, showing a -prima facie case of contempt; the Circ.uit Court can not rescind it', without a rule, that the defendant stand committed, unless, on day given, he shew cause.
    On the 20th February, 1830, Samuel Gates petitioned the judge of the sixth judicial circuit, for process, against Thomas M’Daniel, for having violated an injunction. The petition represented, that before that time, the said Crates had filed a bill in the Chancery Court of Covington, to restrain the said M’Daniel from the use of a bridge, built by him, near a ferry of the said Gates, established by proper license : that, on a final hearing, the injunction obtained by him, was dissolved, and the bill dismissed. That af-terwards, the said Gates sued out a writ of error, to the Supreme Court,' where the decree of the Circuit Court, dissolving the injunction and dismissing the bill, was reversed, and -the injunction reinstated and perpetuated. That all these matters had been notified to the defendant; but that he, disregarding the said injunction, had opened the said bridge, and suffered and permitted the use thereof, in violation and contempt of the injunction aforesaid. He, therefore, prayed an order to the sheriff, directing him to take the body of the said M’Daniel, and him keep, until he should give bond and security, to abide by the injunction, &c.
    Upon this prayer, the judge, in vacation granted an order, in conformity therewith, and the body of the defendant was taken; and he gave bond. '
    At a term of the Circuit Court, afterwards held, on motion, it was ordered, that the above order, for taking of the body of the defendant, be rescinded: and thereupon, the plaintiff in error took his writ, from this Court.

      Porter, for the plaintiff in error; Mr. Wilson, for the defendant.
   Collier, J.t

The plaintiff in this Court, (who was plaintiff below,) presented his petition, sustained by two affidavits, to' the judge of the Circuit Court of Covington, stating that the'-defendant liad committed a' breach of an injunction, issued at his instance, against the defendant; and praying that an order might be made, directing that his body might be taken and detained, until he should enter into bond, with adequate penalty, to perform, keep, &c. the orders and decrees of the Court, made'in that case. — =•

On the petition, the judge made an order, substantially conforming to its prayer.

The questions of law, which the facts of this case, ’ 'seem to present, are— • _ .

First — Had the Circuit Court of Covington, jurisdiction of the contempt, with which the defendant is charged ?
Second — Was the petition with the affidavits, and the, order of the judge made thereupon, in vacation, conformable to the practice in such cases?
Third — Was the decree of the Court, dismissing the order for an attachment, (without making any .other,) regular and proper?

1. In respect to the first point, it may be remarked, that the power to enforce its- own process, and to. vindicate contempts of its authority, is one inherent in courts of justice : otherwise, the law, and its judges would be unceasingly visited with contumely and disrespect — the one utterly powerless, and the other incapable of imparting to its influence.

Assuming this proposition as 'a postulate, it is ma-terial to ascertain whether the process or authority of Circuit Court or its judge has been contemn* ed. An application was made, by the plaintiff, for injunction, to the judge of that court, who grant-*t, an(i it was issued, accordingly. Upon the cause coming on for hearing, the injunction was dis-solved, and the bill dismissed. A writ of error hav-been prosecuted to this court, the decree of dis-missal was reversed, the injunction re-instated and. perpetuated. The effect of the decree of the Cir-' cuit Court, so long as it remained unreversed, al> solved all persons from the restraint imposed by the injunction. But so soon as that decree was reversed, the injunction revived, and acquired all its original influence: the order of the Judge, which had been superseded, & temporarily vacated, received strength and become operative. And having thus, its efficiency renewed, it stood as it did before its vacation — an order of the Circuit Court. It will be recolleqted, that this Court did, what the Circuit court should have done, and nothing more : and had it decreed any thing beyond reinstating and continuing the injunction, which it would be a contempt to disregard —such a contempt, it is possible, could only be punished here ; for the reason, that it would be no of-fence against any other tribunal. Not so, when the injunction itself is set at nought: that having issued from the circuit court, and being approved by this court, disobedience to its restrictions, may with propriety, be punished there.

2. The practice in this State is, where it is made to appear, by affidavits, to a Judge in vacation, that an order or decree in a chancery cause has been violated, ior the Judge to make a suitable order with a view to the trial and punishment of the contempt, at the succeeding Court. And the proceeding is understood to be authorised by the constitutional provision, which invests the Judges of the Circuit Courts with chancery jurisdiction, and perhaps results as a consequence, from the act of the Legislature, which confers the power to award writs of injunction and ne exeat.

We have no statute or rule of Court, prescribing the manner in which parties shall be proceeded against for contempts, in cases such as this; but are referred, by the 26th vile of Chancery Practice, in cases not provided for, to the rules of practice in the English Chancery, so far as they’are compatible with our laws and rules of Court. By a reference to this source of information, 'we learn, that the practice in England, at the present day, is not to direct a seizure of the body, in the first instance, but to give notice that a motion will be made against the party charged with a contempt, that he stand committed ; and if he is not prepared to defend the motion, the Court usually gives a day,to shew cause against it; and then, after hearing affidavits on both sides, decides whether the party is gu-ilty of the breach; and such order as may seem to be demanded.

It may be remarked, that in England, the Court of Chancery is considered as al ways open, with am-pie power tojnaintain its authority ; while according to the organization of our Courts, we have certain prescribed terms for the despatch of business. The initiatory step, it is true, may be taken in vacation, but the matter must be definitely acted on in Court.

■ In the absence of any positive regulations of our own, we are constrained to adopt the English mode of procedure. The order made in vacation, in this case, does not conform to it, bnt, directs the issuance of process for the seizure and detention of the defendant’s body, until-he execute bond with surety in a prescribed penally. Such order would operate the severest oppression, if made against one who was guiltless, should he be unable to find sureties — and in our view, is indefensible.

3. It remains then, but to enquire, whether the decree of the Circuit Court, disposing of the proceeding for a contempt, is erroneous.

The petition discloses a clear case of contempt, which is jprima facie made out by the affidavits. These being all before the court, such order should have been made as they required; which ivas a dismissal of the order of the Judge, and the entry of a rule, tnat the defendant stand committed, unless on a day - given, he shew good cause to the contrary.

The failure of the court thus to dispose of this proceeding, is, in our opinion, an error; for which, the judgment must be reversed,- and cause remanded.'

       Wilmot's Opin. 257-8 et post.; 3 Term R. 253;-2 ib. 643; 7 ibid 439. 527; 3 Blac. 285; Hawk. P.C. bk 2§33; 4 Just.23; Sul.L.494; 1 Dal.15; 6 John. 337; 9 ib. 395; 2 Va. Cases, 408

       Eden on Inj. 56


source: Caselaw Access Project

author: Hopkins, J.

license: Public Domain

text:
    CHINNUBBEE versus NICKS, et at,
    QUESTION IN THIS CASE.

      Relative to lands of which an Indian widow is dowa-Me.

    1. The widow of an Indian is nol'dowable of lands, selected hy the husband, under the Treaty between the United States and the Creek tribe, of the '24th March, 1832, and by him conveyed, in conformity with that treaty, to a purchaser.
    This was a proceeding, instituted’in. Talladega Circuit Court, by tlie plaintiff in error, the widow of General Chinnubbee, a Creek chieftain of that tribe; .on a claim of dower.
    The land, of which the plaintiff prayed to be endowed, had been selected by her husband, in conformity with a provision of the treaty, entered into, on the 24th March, 1S32, between the United States and the Creek tribe of Indians. General Chinnub-bee, after the selection, conveyed to the defendants in error, all his right title and interest in the lands so selected, and the contract was duly certified and approved, as required by the articles of that treaty.
    The Circuit Court, on the facts; dismissed the petition, and Chinnubbee, the wife, brought the cause,, on error, into the Supreme Court.
    The only question raised and determined, was* whether General Chinnubbee held an estate in the lands selected under the treaty, of which his widow was dowable.

      The case was argued by Mr. P. Parsons and Mr. Chil-ton, for the plaintiff in error; and by Mr. Mardis, for the defendants.
   Hopkins, J.

This was an application of the plaintiff in error for dower, as the widow of Chinnubbee, who was a chief of the Creek tribe of Indians.— That she was his wife, at the time of his death, was admitted by the defendants, in the suggestion of her want of the right she claimed, which they filed in the Circuit Court, to which she made her application, and has not been questioned in this Court, by their counsel. The land in which dower in this case is demanded, is a selection that was made by Chin-nubbee, in his life-time, under the treaty between the United States and the Creek tribe of Indians, dated the 24th March, 1832. On the 10th September, 1834, he conveyed by his deed, all his right and interest in the land, to the defendants, and the proper agent, on the same day, made his certificate, upon the deed, that the ‘price paid by them, was the full value of the land. •

On the 15th October, 1834, Chinnubbee died, and on the 1st November, in the same year, the Pie-sident of the United States approved of the contract.

Several questions, arising from the treaty, were argued, which ought not to be determined, till a case shall be made, with parties to it, interested in them. But so mu.ch of the treaty as need be considered, to-ascertain the quantity of interest, which the husband had in the land, must be construed. Her counsel contended that he acquired a fee simple in it, as soon as the selection was made.

Before the treaty was made, the fee simple, in all the land embraced by it, belonged to the United States, and the right of occupancy to the Indians. The right of occupancy to no part of it, could have been sold by any individual of the tribe. The power to dispose of it, was in the tribe, and limited, when exercised, to a sale of it, to the Unite'd States: The treaty discharged the fee which the United States previously owned, of that right of occupancy. That Chinnubbee was vested, by the making of his selection, with'a fee simple in the land, is a proposition to which several provisions of the treaty are opposed. One of them, required the land selected, to be reserved from sale for his use, for the term of five years, unless sooner disposed of by him, and if he conveyed it during the term, by a contract .certified by an agent, appointed for the purpose, and approved by the President; that a tille should be given by the United States, on the payment of the purchase money, to the purchaser.

The fifth article provided, that all the Creeks, at the end of five years, entitled to selections, and desirous of remaining, should receive patents therefor, in fee simple, from the United States.

If it were intended, that he should acquire .a fee simple, by selecting the land, why did the United States agree to give, and he to accept.,' another grant of title, at a subsequent time, to the same land ? If he could, in this mode, be vested with an estate in fee, how could the United States discharge the obligation, they have contracted, in the most solemn form, to grant the same estate to an approved purchaser from him? The engagement of the United States was either to grant the fee simple to him, or to an approved purchaser from him, should he sell the land before he became entitled, according to the terms of the treaty, to a patent, himself. He had his election, either to acquire the fee himself, or to receive the value of the land, and the title was left in the United Slates, and might be retained during the whole time allowed for him to make his election,to enable them to convey it, according to his election, He preferred the value of the land, and has received it. The effect of his preference is to give him the same right, under the treaty, that he would have, if it had bound the United States to pay him the sum which he has received from the purchasers, and allowed him no selection. The purchasers derived no title from his deed to them, but they arb entitled to a patent from the United States. The-only effect of their contract with him, was to terminate the alternative he previously had, and give them the right to the obligation .into which the United States had entered, to convey the title to whoever might become an approved purchaser from him.

The approval of the contract, by the President, .after the death of Chinnubbee, could be properly given. He did, in his life time, all that was required of him. When he delivered it, nothing was necessary to complete it as a contract. The approval, when given, was no part of the contract, but the opinion of the President, that the contract of Chinnubbee, was'valid: This opinion of the President, like the proof and registry of deeds, in States where these are necessary, in addition to a deed, to convey a title, has the same effect, when pronounced after, as before the death of the vendor. Had the contract been disallowed, the alternative would have been again in Chinnubbee, and the title in the United States, as it was before the contract, charged with an obligation to'convey it, to whoever the exercise of the alternative might show to be the proper person. The form of 'the contract has. not been prescribed, and is immaterial. Regardless of the form, the effect of every approved contract is-the same. It gives a right to the purchasers, to the obligation of the United States, to convey the title to them. This right and not the title, was all the defendants did or could have acquired from the husband of the plaintiff.

The defendants do not, therefore, in opposing the application for dower, deny the title of their grantor. Were we mistaken in the view we have taken, there is anothor, which will show that the husband of the plaintiff had no such estate as she is dowable of.— The selection and reservation of it, for his use/from sale, for the term of five years, accompanied by power to him to sell, can not give him any other than a defeasible fee — a qualified one, which must yield to the estate, which he was authorised to create, by the execution of the power given to him, to sell.

It is-well settled, upon,authority, that if there be a grant to one and his heirs, to such uses as he should appoint by deed or will; and for want, or in default of, and in the mean time, and until appointment., to the use of himself, his heirs and assigns, forever; and he make an appointment in fee, his wife has no right of dower. Before such an appointment, he would have a vested fee, and be seized in fee, until appointment. Should he die before such an appointment, his wife would be dnwable. . But. her right would be destroyed by an appointment: when made, the appointee'would take the title, as if,the original conveyance had been made to himself. The question, whether the grantee conveyed his own estate* or executed his, power, which sometimes arises, in cases of this class, does not arise, in the one before us.

The contract of Chinnubbee, without the proper certificate of the agent, and the approval of the President, could have no effect. The certificate and approval were required by the treaty, to prevent a sale, upon an inaedquate consideration; and they show that the contract was made in execution of his power.

T , , , . Let the judgment be affirmed. °

Collier, J., not sitting — -having presided below.

       Sug.on P. 148-9. 151, 335, 337-8-9; 10 Ves. 263; 6 East 288


author: Hitchcock; C. J.

text:
    MASTERS versus EASTIS.
    QUESTIONS IN THIS CASE.

      As to the collateral impeachment of a patent, issued fir lands.

      Relative to proceedings in the action of trespass to try title.

    1. A patent, issued by the United States, for land originally entered by the patentee, and not void, on its face, cannot be collaterally impeached, in an action of trespass to try title, by the production of the certificate showing an assignment of it to another, previous to the issuance of the patent.
    2. In the action of trespass to try title, the fictitious proceedings' in ejectment aré abolished : and where, in such action, the ejectment was laid in the declaration as before the date of a patent, on which the plaintiff relied, it was held, that this was immaterial : and that damages were recoverable for the’ detention down té the time oftrial.
    Wiley Eastis brought his action, of trespass to try title, to certain lands, against Robert Masters, in the Circuit Court of Jefferson ; and on the plea of the defendant, of not guilty, recovered judgment against him.
    A bill of exceptions taken in the progress of the' cause, and which was the foundation of its removal to this Court, shewed that on the trial, the plaintiff produced, as evidence, the patent for the land in question, whereby it appeared to have been granted to him. The defendant then offered to show, that when the plaintiff entered the lands, the subject of the action, he received a certificate therefor, which was then by him, assigned to anothor: and so, it was insisted the plaintiff had no title. But the Court rejected this testimony.
    The Court was then requested, by the defendant, to charge the jury, that if the ejectment laid in the declaration of the plaintiff, was fjrior to the date of the patent on which he relied, then he could not recover'.: also, that if entitled to recover, no damages could be assessed for the plaintiff but those which had accrued before, and at the time of the commencement of the suit. These instructions were refused.

      Mr. Ellis and Mr. Perk, for the plaintiff in error — ■ Messrs Mardis, and Stewart, and I'horulon,- for the defendant.
   Hitchcock; C. J.

This was an action of trespass; to try titles, brought by the defendant against the' plaintiff in error, in the Circuit Court of Jefferson bounty. On the trial of the cause in the court below; the plaintiff produced and read a patent from the Unb ted States, for the land in question, and also proved that the defendant was in possession of the premises Sued for before and at the commencement of the suit; and also proved the value of the rents of the laud.

The defendant then offered to prove that the land in bontroversy had been originally entered by the “'plaintiff, who received at the time of the entry a certificate of the purchase from the proper officer of the government; arid that some short lime after the entry, he had duly assigned the certificate to one Wm. Eastis. Objection being made to the reading of the certificate, the objection was sustained, and the certificate was excluded.

The defendant, proved that Wm. Ea&lis was in possession of the land during the winter of 1833 and ’34; that m the spring of ’34, one Drury McGee was in possession, and that in the month of August, 1834, the defendant came inio possession. The patent is dated the 14th October, 1834. The writ issued the 28th October 1834. The date of the certificate, arid of its assignment, are not stated in the record. By the endorsement on the writ, the trespass is laid on the 10th October, 1834, and in the declaration, it is hud on the first day of July 1834.

At the trial of die causei below, the defendant asked the Court-to instruct'the jury, that if the ejectment, laid in the declaration, was before the date of the patent, the plaintiff could not recover : which the Court, refused to do. He also asked the Court to instruct the jury, that the plaintiff, if entitled to recover, was entitled to no damages, except those which accrued before and at the time of the commencement of the suit; which instruction the Court also refused to give.

The rejection of the certificate and its assignment, and the refusal of the Court to give the instruction» asked, are assigned for error in this Court.

To sustain the position that the certificate was proper evidence, the counsel for the plaintiff in error contends, that the certificate received by the plaintiff below, at the time the land was entered, vested in him a full, complete, and legal title to the land ; that the assignment of the certificate, by the plaintiff, to William Eastis, vested all that title in his assignee; and that the subsequent acquisition of a patent, by the plaintiff, can not defeat the defendant’s right to the land. To sustain this position, sundry previous decisions of this Court, and particularly the case of Bullock vs. Wilson, are relied upon.

Ill the case referred to, the receipt was adduced in evidence by the original holder of the certificate, and it was held, that “the legal and bona fide holder of a receipt of this kind, is indefensibly entitled to a patent for the same” — that “nothing more is necessary on his part, to secure itthat “ he already has a legal right-.” that “the receipt and the law, imperatively command the issuance of the patent, as the complete evidence of the title and that “ until it shall have issued, the receipt is the best evidence of the right which the case admits of.” They farther say, that it comes within the equity of the act. of 1812, which recognises all certificates issued p.ursu-. ant to any act of Congress, upon any warrant, or order of survey, donation, certificate, or pre-emption claim, as vesting in the holders “a full; com píete, and legal title” — so far as to enable them to maintain an action thereon, and iconstitutes the same, evidence thereof, in courts of justice.”

The Court, in the same case, further say, that “upon principles of common law, they must be regarded as evidence of a grade of title, which at least, confers the right of possession, and this alone is sufficient in this action.” The substance of this decision is, that the legal holder of the certificate has a right to a patent, and that the certificate, in the mean time, will enable him to sustain an action for the possession. It does not declare that the certificate passes the fee of the land : this can be done only by the patent. The action of ejectment being a possessory action, the fee may be in one person, and the right to possession in another, and consequently the latter .may, in 1 he absence of other proof, which will destroy -that right, maintain this action for his possessory right, by virtue of a certificate. In all the cases, in which certificates and receipts of this kind, have corne before this Court, the right of possession wag the only queslion raised.

But when the certificate comes in conflict with a patent, which passes llie foe, a question of entirely different character is presented. .

It involves the enquiry as to the circumstances un? der which a patent may be impeached or avoided. The decisions heretofore made, have only decided upon the legal effect of a certificate, “ until a patent shall'have issued,” — not after.

The doctrine on this subject, appears to be well settled, in a case in the-Supreme Court of the United States. It is there laid down, “ that if a patent is absolutely void upon its face, or the issuing thereof was without authority, or was prohibited by statute, or the stale had no title, it may be impeached collate? rally in a court of law, in an action of ejectment.— But that, in general, other objections and defects complained of, must be put. in issue in a regülar course of pleadings, on a direct proceeding to avoid the patent.” This principle is deduced from the case of Polk's lesse vs. Wendel, first reported in 9th Crunch. 87; and the sime case in 5 Wheaton, 293, and in 10th Johns 23; and which this Court, is prepared to adopt, as the correct, rule of law, in cases of this kind.

It will not. be contended, that either of the above contingencies, are applicable to the patent before the .Court. It is not void upon its face. The land had been originally entered by the patentee: there wag authority for issuing a patent for .this land. It. was no.t prohibited by any statute, and the United,States ,h^d title .in the land. The only question which can £r]se, is, whether the patent issued to the right, person, and this involves-a collateral inquiry, which, as we have seen, is not admissible in this- proceeding.— The production of the patent carries wilh it the legal presumption, that every prerequisite of 1 fie law has been complied with ; and, even if irregularities have intervened, it would be extremely unreasonable, in a court of law, to supervise the progressive, course of a'title, from its commencement to its consummation in a patent.

To have admitted the evidence in this case, for the purpose of giving it the effect contended for by the plaintiff’s counsel, to wit, that of ipso facto, avoiding the patent, would have led the Court into an inquiry, which the plaintiffs might have required, of .contesting the validity of the assignment of the certificate; and which, if decided either way, would have left the legality of the patent, u nirn peached. — r ■For, by-the practice of the land offices, duplicate rer .ceipts are issued,one of which is delivered to the purchaser and the other is sent to the general land office, for a patent. Now, that may have been the case here — if so, admitting the assignment, to be valid, still the patent, has legally issued ; and in a Court, of law, it being the highest, evidence of a fee, must. pre? vail over any other description of title. The patent having legally issued to the.plaintiff, the fraudulent .use of it, in a Court of law, will not. be inquired into, when that use can only be prevented, by pro? pouncing it void.

'• The defendant, in snob a case, however, is not without his remedy : “A Court, of Equity, is the more eligible tribunal, in general, for these questions, as it. can decree jx_ specific performance of a contract: they ought to be excluded from a Court, of law.”

It was suggested, in argument, that the patent, having been issued subsequent, to the date of the assignment of the certificate, the Court ought to construe it as having been issued for the benefit of ihe assignee, on llie ground, that one who had sold lands to which he had no title, but’ who subsequently acquires one, shall be considered as having acquired it for the use qf his grantee. This is correct, law, and would be applicable to this case, if the plaintiff had convey.ed this land by deed, witli covenants, express or implied, of warranty; but which is not the case, here.

The two other points, as to the refusal to give the asked, are decided by the two cases of White vs. St. Giron, and Avant vs. Reed. It, was . there decided, that the legislature, in giving this action, not only intended to abolish the legal fictions, in the action of ejectment, but, also, to enable 1 he plaintiff to recover, in the same suit, full satisfaction for the detention of (lie premises. The date of ihe ejectment, in the declaration was, therefore immaterial, and damages may be given down to the time of the^riul.

Let the judgment be affirmed.

       2 Porter, 441, 442.

       11 Wheat 334

       11 Wheat. 383.

       11 Wheat. 384.

       Ala. rep 331

      2 a Porter. 480.


author: Collier, J.

text:
    REED versus THE BRASHERS.
    QUESTION IN THIS CASE.

      As to proof of property to the chattel converted, in trover.

    1. Whore, in trover for n slave, against two, the plaintiff to shew his right of property, offered the record of an action in detinue, determined between himself and one, of the defendants, it was held, First— I hat the Court had no authority to reject it as evidence — it not appearing but that it was intended as the foundation of proof of the identity of the slave, in both suits. Second — that the record (in this view,) was admissible, notwithstanding the first suit was against but one of the defendants. ‘
    Trover by the plaintiff in e,rror, in Shelby Circuit Court. Tint plaintiff-declared against lhe defendants, for the conversion of a female slave: and the plea of the general issue was relied on. T.o prove the issue on his part, the plaintiff proposed to introduce as ei idence of his right of property, in the slave, a record, (of file in that Court,) of a suit determined in de-tinue between the said plaintiff, as defendant, and Thomas H. Brasher, (one of lhe present defendants) as plaintiff; and in which the right to" a slave, alleged to be lhe same -for which this action was brought, was pul. in issue; and found in favor of the plaintiff, Reed. To the admission of this record testimony, thedefendants objected, on two grounds — . first, that,the identity of the slave, in both actions, was not shewn ; secondly, that the suit, in detinue, was not between the same parties. The Circuit Court rejected the evidence, and a judgment was rendered in favor of the defendants.

      A bill of exceptions brought the case into this Court, where it was argued by Mr. P. Parsons, Mr. El/is and '.Mr. Peck, for the plaintiffs in error; and by Mr. Mardis, for the defendant,.
   Collier, J.

The plaintiff here, (who was plain-' tiff below,) brought, his action of trover, in the Circuit Court of Shelby; against the defendants, to recover damages, for the conversion, by them', of a female slave, named Eliza. On the trial, he proposed to read to the jury, for the purpose of shewing his right to recover, a record of the proceedings in an action of detinue, prosecuted by Thomas H. Brasher, against the plaintiff, (theretofore determined, in the same Court,) for the recovery of a female slave, named- Eliza, about the same age- of the'one which the defendants are charged with having con verted.— In the action of delimie, Brasher was unsuccessful,(a verdict and judgment being rendered against him.) The Court, on objection, by the defendants, rejected the record, as evidence. • -

The question now tó be determined is,- whether the Court erred in its decision?

This judgment is’attempted to'be maintained, on-the grounds — 1. That the slave Thomas H. Brasher sought to recover, wis not shewn to be the same, the’ conversion of whicji is charged upon the defendants.

It was udt necessary for the plaintiff to have produced proof, tending to shew the identity of the subject- of the two suits, before he laid a foundation for the introduction of such evidence: and that foundation should have been the production of the record, shewing the pendency and determination of the first suit. Having read this to the july, it would theri have been proper to prove the identity of the slave. Had the Court been advised by the plaintiff, that he had no proof of identity 1o offer, other than that infera-ble from the record, perhaps it would not have been improper to have excluded it; but, in the absence of any such disclosure, wo are constrained to believe the evidence admissible.

2. In regard to the second objection to the admission of the record, viz: the want of the sameness of parties, in the two cases, we do not consider that this affords a warrant for the rejection of the evidence. The judgment in detinue was certainly evidence ar gainst. Thomas H. Brasher; and we will not say, that the fact of Samuel Brasher being the security for his coniefendant, for the successful prosecution of his suit, does not bring him so much in privity to make it evidence against him. Be this as it may, it was surely competent for the plaintiff to shew', that Samuel Brasher had seised the slave, or retained the possession, under ibe authority or supposed title of his eo-defeudunt, which was concluded by the judgment against him, in the action of detinue.. This being proved, the judgment would be evidence against both the defendants. The influence of the judgment might, it is Irue, be met and destroyed, if the' defendants were to prove a valid title, acquired since its rendition.

In any view, in wdiich this case has been presented,we are of opinion-that the Circuit. Court, erred: its judgment is, therefore reversed, and the cause re^ manded. »


author: Hitchcock, C. J.

text:
    REED versus THE BRASHERS.
    QUESTION IN THIS CASE.

      Relative to bonds, required in an action of detinue. ■

    .1. A bond given by a plaintiff in detinue, under tbe'statute of 1830,
      after the levy by the sheriff, is good, on demurrer, as a. common law bond: and the court will not presume that a previous bond, in strict compliance with' the statute, had been given to the clerk.
    2. Had such previous bond been executed, it might have been pleaded.
    This was an action of, debt, prosecuted in Shelby Circuit Court, By James B. Reed, against ttie defen-dantsin error, the obligors of a bond, executed under the statute of 1830, in detinue. In the action commenced by Thomas H. Brasher, one of(the defendants, against Reed, this bond liad been given, and Samuel Brasher was the surety. The bond was written, as follows, to wit:
    “The State of Alabama, Shelby County. Know all men, by these presents, that we, Thomas H. Brasher and Samuel Brasher, are held and firmly bound, unto James B. Reed, in the penal sum of five hundred dollars, to the payment of which welland truly to be made, we bind ourselves, our heirs, executors and assigns, firmly by these presents, sealed with our seals, and dated this 13th February, 1832. Th&. condition of the above obligation is such, that whereas the said above bound Thomas H. Brasher, has commenced an action in the Circuit Court of Shelby County, against James B. Reed, for a certain negro girl, by. the name of Eliza; and the sheriff of Shelhy county having laid negro girl in possession, by virtue of said action; and the said Thomas H. Brasher being desirous to give bond and security, in pursuance of the statute in such cases made and provided ; that he will, in case he fail in bis said action, pay and satisfy unto the said James,B. Reed, all such ■costs and damages he may sustain, in case he, (said Brasher,) shall fail in his said action in that case— then this obligation'to be void, else, to remain full in force and effect.
    “ Signed,” &c.
    The defendants craved oyer, and demurred; and the Court below sustained the demurrer, and rendered judgment for the defendants.
    Reed, by writ of error, removed the case, into this Court.

      Mr. P. Parsons, and Mr. Ellis and Mr. Peck, for the plaintiff in error; Mr. Mardis, for the defendants.

       Aiken’s Digest, page 263, §30,

   Hitchcock, C. J.

This was an action of debt, on a penal bond, given by the defendants, to the plaintiff in error. The defendants below craved •oyer of the bond and condition, which are set out, in the record; and upon oyer, demurred: judgment was rendered in favor of the demurrer, by the Circuit Court of Shelby County — and the case is brought here, by writ of error. / - ■

The penal part of the bond, is in the usual form: the condition recites, That Thomas H. Brasher, had Commenced an action against the plaintiff in error,, in the Circuit Court of Shelby County, for a certain negro girl, named Eliza; and that the sheriff of said County having said girl in possession, by virtue of said action, and the said Thomas H. Brasher, being desirous to give bond and security, in pursuance of the statute, in such case made and provided, that.he will, in case he fails in his said suit, pay and satisfy unto the said Rimes' B. Reed, all such costs and damages, as he may sustain, in case he, (said Brasher,) shall fail in said action intbat case ; then this ■.obligation to be void — else, to remain in full force and effect ”

The statute, in cases of detinue, authorises the plaintiffs, upon making oath, to the property sued for, and upon giving bond árid security, to be approved by the clerk, conditioned to pay the defendant all such costs and damages as-the defendant may sustain, in case the plaintiff fail: to require’the clerk to direct the sheriff to attach and bold the property sued for, subject to other proceedings directed by the statute. . -

It is contended, by the defendants’ counsel, that this bond is void, it not having been taken before the levy by the sheriff; that the legal presumption is, that a proper bond had been taken by the clerk, else the sheriff would not have attached the property.

It is the opinion of the Court, that the bond is good, as a common law bond. The condition by which the defendants are bound, requires no more than the statute does: there is no stipulation contrary to the statute, or inconsistent, with its require ments ; and that, therefore, the defendants are estop-ped from denying their liability, by reason of their, pegligence, in not giving the bond at the proper time,

' If, as is suggested in argument, another bond in compliance with the statute, had been given before this, and upon which they are slill liable, that fact, should have been pleaded.

Let the judgment be reversed and the cause re^mantled,


author: Per Curiam.

text:
    COLMAN versus WATERS.
    QUESTION IN THIS CASE.

      Relative to the answer of a garnishee in attachment.

    J. Proceedings against a garnishee, in attachment, before justices of ihe peace, when removed to the Cirrcuit Court, are triable de novo; and the garnishee has' a right to answer over.
    This was a proceeding in garnishment, before a justice of the peace, of Butler county, against the plaintiff in error, at the instance of Waters. The justice, on the answer of Colman, gave judgment, against him, which he removed, by'appeal, to the Circuit Court of that county ; where the judgment was again rendered against him on his answer.
    The error assigned, was the refusal of the Circuit Court, to permit the plaintiff in error, to answerover.

      Ellis and Peck for the plaintiff in error — Mr. Dar-gan for defendant.
   Per Curiam.

This cause must be reversed and remanded, on the authority of the case of Gayle vs. Turner.

In cases from magistrates, the proceedings are de novo, and the garnishee should have been permitted to answer anew.

       1 al Rep. 206.


text:
    BULLOCK versus WILSON.
    QUESTIONS IN THIS CASE.

      Relative to admission of testimony, on sundry points in issue.

      As to criteria of damages, m trespass to try titles.

    1. Where evidence has been admitted, by an inferior Court, on an issue, on some points, within which it might have been admissible., and others not,- the Supreme Court will not reverse — the bill of exceptions not showing that the evidence was admitted in respect to a part of the issue, to which it might have been incompetent.
    2. The proper criterion of damages, in the action of trespass to try title, is not the p-q/iis acquired during the occupation of the premises.
    James Wilson declared against Leonard Bullock, in Shelby Circuit Court, in the action of trespass to try title, to a parcel of land, whereon was situated a mill. The plea was, not guilty ; and under that issue, verdict and judgment were rendered for the plaintiff in the action.
    So' much of the history of this cause, as is material (■as decided,) to be shewn, relates, that the plaintiff, to prove the issue on his part, produced in evidence a certificate of the Register of the proper land office, specifying full payment for the tract'of land in dispute. To the reading of this certificate, the defendant- objected, on the ground, that since the commencement of the action, the plaintiff had become possess-' ed of the patent issued thereon ; and which he insisted, was of higher grade of title : but the objection was overruled.

      The Court charged the jury, that in ascertaining the damages, they might find what were the .yearly profits of the mill; and give the plaintiff damages for that portion of it situate on his land.
    BilL of exceptions, and writ of error.
    Argued by Mr. Chilton for the plaintiff in error; and by Mr. Mardis, and Mr. Ellis, and Mr. Peck, for the defendant. . (
   Collier, J.

This case brings before the Court, many questions of law — all of which, with,the exception of the first and fourth .assignments of error, are understood to have been decided, either by this case, or that of Hamner v. Eddins; and as the Court is satisfied with these decisions, the principles settled by them, will not now be disturbed.

In regard to the-first assignment, it was determined in this case, that the receipt of the Receiver of public monies, given to a purchaser of the government lands, might be read to the jury as evidence of title, where there is no higher evidence of that fact; but. if the title has been perfected by the issuance of a patent, this Court is not understood to have said, that, the certificate shall still be evidence, to prove title. We do not, however, feel ourselves called upon to decide this question-: for any thing appearing upon the record, the receipt, of the receiver may have been offered for the purpose of showing the time of the defendant’s purchase, that it might be known from what time he became entitled to damages. The bill of exceptions merely recites, that this paper was introduced to prove the issue. Now, as proof of the extent of the damages were clearly within the issue. and the certificate may have been read for that purpose, the Court, did not err in .suffering it to be read to the jury.

The fourth assignment denies the correctness of the rule laid down by the Court, for the ascertainment of the defendant’s damages. The jury were dirented to ascertain what were tlie entire yearly profits of the mill,and to give damages' in proportion, for that, part of the mill that covered defendant’s land. This instruction, we understood to be tantamount to saying, that 1 he' measure of damages, in the action of trespass to try title, is not what damages have been sustained by the occupancy of the premises, .but the profits which the occupier derives from them. This action has been substituted, by the Legislature, for the actions of ejectment, and trespass for mesne profits, and performs the office of both. For the purpose then, of ascertaining what damages are recoverable in this action, we must enquire what are the criteria of damages in trespass for mesne profits. In regard to that action, all the authorities inform us, the plaintiff is entilled to recover,!he damages he has sustained, by being kept out of possession ; and that these are never increased or diminished, by the profits acquired by the defendant, from his occupancy.

According to some of the decisions, the plaintiff is entitled 10 recover a fair rent only — while others hold, that he is entitled, in addition to rent, toexpen-ces incurred in prosecuting his action of ejectment ' 1 ° J „ trespass.

Without pretending to ascertain the precisemea-sure of damages, we are persuaded that there is er- ° ror in the instructions of the Court to the jury. • The judgment is therefore reversed and the cause remanded.

      , a 2 Porters Rep. 441.

       3 Stewart 192

      1 Cox’s N. 574...2 Sanon Ple. and Ev 670


text:
    ROBERTSON versus BEAVERS.
    QUESTION IN THIS CASE.

      As to suggestion against a sheriff, for failing to make the money on an execution.

    1. On suggestion against a sheriff, under the act of 1826, for failing to make the money under an execution, evidence, that the property in possession of the defendant in execution was said not to belong to the latter, will not excuse the sheriff, from a levy.
    This was a suggestion by Robertson, in the Circuit Court of Talladega, setting forth, that before the time of the suggestion, he had obtained a judgment in the said Court, against one Pate, for the sum of one hundred and six dollars and 33 cents; on which execution had regularly issued; that said execution went into the hands of said Beavers, sheriff of said county, and had by him been returned nulla bona: and the plaintiff, Robertson, made knowm to the Court, that the money on the execution could havé been made, with due dilhgence; and asked an issue to try that matter;
    The proof was, that the defendant in the execution, at the time the sheriff had possession of it, was possessed of slaves. But the sheriff introduced evidence to prove, that he was informed by Pate and his wife, and other persons, that the slaves were the property of Pate’s wife, and that he, (Pate,') had no property in them.
    This evidence was admitted by the Court, and judgment was given for ihe sheriff; and ihe said 'Robertson prayed the Court U> sign and seal excep- . lions to the admission of this evidence; and it was done accordingly.

      Messrs Ellis & Peck, for the plaintiff in error; and Mr. Mardis, for the defendant.

      Aikin’s Digest Í75, $78.

   Hitchcock, C. J.

This was a motion, under the

statute, for judgment against a sheriff, for negligence, in not making the money on an execution. The evidence offered by ihe sheriff, in excuse, was, “(hat. he was informed, by the debtor and Ids’ wife, that the property in his, (the debtor’s,) possession, to wit, a negro woman ami child, belonged to his, (ihe debt- or's) .wife; also, that it was the understanding in the neighborhood, that the negroes belonged to the debt- or’s wife, or to the father of the wife, who lived in Georgia; and that he was informed of the same matters, by persons who said they knew all about the property in Georgia; and that it had been loaned to the debtor's wife. This evidence was objected to, but admitted, by ihe Court* to go to the jury.

The evidence was clearly inadmissible.! It amounted only to-hearsay evidence, and did not tend to prove any fact, as to the liability of the property to the execution. If the sheriff had doubts as to’ the right of property, he might have required a bond of indemnity from the plaintiff, or his agent: not having done that, and having omitted to levy on ihe property, he was bound to shew due dilligeuce in endeavoring to collect the money — which the evidence admitted by the court, did not tend to establish.

Let the judgment be reversed, and the cause remanded.


text:
    WHEELOCK versus FITCH.
    QUESTION IN THIS CASE.

      As to the want of replication to a defendants picas.

    1. That a cause is submitted to a jury, and a verdict rendered for the plaintiff, on pleas of the defendant; without a replication- to such pleas, is error.
    This action was debt, in Tuskaloosa County Court, •on a sealed note executed by the plaintiff in error. There were several pleas tendered by the defendant in the action, to none of which, however, was there ,a replication by the plain 1 iff. A judgment was rendered upon the verdict of a jury, in favor of the plaintiff, Filch, upon this state of the pleadings; and Wheelock prosecuted las writ of error to this Court.

      Ellis & Peck, for the plaintiff in error; Marlin, for • the defendant.
   Per Curiam.

The plaintiff, (who was defendant below,) pleaded several pleas, in short, as it is slated by consent, and one special plea at length, concluding with a verification — all of winch are signed by his counsel only. At the foot of the pleas we find an entry in these words: “Demurrer in short, by consent, to all the pleas of the defendant.” (Signed,) “ Smith.” The demurrer does not seem to have- been noticed; nor was thereany replication or issue to any the pleas. It no where appears by the record, that “ Smith” was the plaintiff’s attorney. The declaration is signed “ Shortridge, P. Q.”

Without determining whether the pleas in short, or the demurrer are so pleaded, as,to have required the notice of the Court below, we are satisfied that the Court erred in trying the case bv a jury, with-a replication to the defendant’s plea.

If ^ie plaintiff in error had obtained a verdict., it jvould not have been competent for the defendant to object that there was no issue, because the failure to continue the pleadings, resulted from his neglect: and it is 'settled by this Court, in Castleberry vs. Pearce, that a party omitting to plead', shall not avail himself of his omission, on error.

The judgment is reversed and the cause remanded,

       Minn's R. 137-2 Stew 483.

       stewart & Porter 141.


text:
    VANDEGRAAFF et al. versus MEDLOCK.
    QUESTION IN THIS CASE.

      As to the power of Chancery, to decree to a mortgagee the proceeds of a policy of insurance, effected, on the mortgaged property.

    I. Chancery has no power to decree to mortgagees, the proceeds of a policy of insurance, effected by the mortgagor, on the mortgaged property, where the same has been destroyed by fire — no covenant existing in the deed, as to the insurance.
    In this case, a bill in Chancery was filed in the Circuit, Court of Tuskaloosa, against Medlock, by the plaintiffs in error, for the purpose of controlling the proceeds of a policy of insurance, which the defendant had effected upon certain real estate, situate in the town of Tuskaloosa. So much of the facts, as are material to be stated here, showed that the property insured had been purchased by the defendant, of the complainants; and that, to secure the payment of the purchase money, the said Medlock had executed his deed of mortgage of the property in question, to them. The mortgage deed was general and contained no covenant, stipulating an insurance, oran assignment of it. • After the execution of the mortgage, and 'before payment of the purchase money, the buildings situate upon the premises, were insured by Medlock; and subsequently were destroyed by fire.
    The object of the bill was to enjoin Medlock from receiving from the insurance office, the proceeds of the policy; and to seek an application of it to the complainants’ debt. And they alleged in their bill, that, Medlock was insolvent,; and the property mort^ gaged, so depreciated by the destruction of the build? ings, as to afford no means, by which to secure the .collection of the purchase money.
    On a general demurrer, the bill was dismissed, at the cost of the complainants, and they prosecuted a writ of error to this Court.

      Mr. Wilson, for the plaintiffs in error; Mr. Ellis, Mr. Peck and Porter, for the defendant.
   Hopkins, J.

The question in this case is, have the plaintiffs in error, who are mortgagees, a right, in a Court of equity, to the, proceeds of a policy of insurance against, fire, effected by the mortgagor af-r ter the mortgage w'as made, which contains no covenants that he should insure ?

The facts relied upon to support this right, which they claim, are, 1 hat after the execution of the mortgage, that was made to secure the purchase money of the mortgaged premises, which the plaintiffs had previously sold and conveyed to the mortgagor, the houses were burnt down — an event that so greatly diminished the value of ihe estale, that the mortgage ceased lobe an adequate security for, the purchase money, and that, the mortgagor was insolvent.

The mortgagor is not entitled to receive from the insurers any thing in the nature of proceeds of ihe houses which were burnt; but the proceeds of the policy, which is a different, thing. He was bound to pay the purchase money, though the value of the estale might, he-reduced so low, by fire or any other pause, as to become merely nominal. He effected the. insurance at his own expense', and the proceeds of the policy, when ho shall receive, them, will not be the value of the estate, or any part of it, which he had disposed of to another person, but a substitute for the value, that he had provided by his own contract. This substitute will have been procured with his own money. When the insurers shall pay the loss, they will have received no part of the consideration of the contract, upon which they may pay, from the mortgagees, or from the mortgaged estate, but the whole of it from the general means of the mortgagor. For the mortgage, the plaintiffs gave a consideration, but. none for the policy of insurance. It. is well settled that a policy of insurance is a distinct. independent contract between the insured and insurers, and ihird persons have no right either in a Court of equity, or in a Gout t of law, to the proceeds' of it, unless there be.some contract or trust, express or implied, between the insured and ihird persons. If'.here were a covenant in the mortgage, on the part of the mortgagor, that, he would insure, and in case of a fire, pay lite proceeds of the policy, if he failed to pay the debt, 1o the mortgagees, it would create an express trust, in their favor upon the policy, and a bare covenant, of the mortgagor to insure the premises might make an implied trust for them. As there •are no such covenants in lite mortgage, and no other contract on the.subject between the parties, the case is one, in which the mortgagor has obtained a contract. with his own money, and a Court, of equity has no more control over the proceeds, to which he may be entitled, .than it has over any other debt due to him. If he be insolvent, his other creditors have as just a claim to the proceeds of the policy as the mortgagees. But no cieditor could make them liable by the aid of a Court of equity, to satisfy his demand, who had, not before he filed his bill for the purpose, obtained a judgment at law upon the demand, sued out execution, and pursued the latter to every available extent at lavv.

Let the decree be affirmed.

Collier, J. — I awarded the injunction in this case; consequently do not join in the opinion — but I, by no means, dissent from its reasoning or conclusion.

       4 Johns Chancery Rep, 671.

       Hughes on Insurance. 33, 40 — Ellis on Insurance and Annuities, or 12th No Law Library, 81, 82. 155, ¡56. (iu brackets) — Khh JVn. I.avv Library, 331,132, top page — 8 English Oommnu Law lieports, 175.176, 177 — 2 English Common Law Chancery"lieports, 74 — 4 Taunton, 380 — 17 Vesey, 339 — Id ib. 115 — 3 £)owl. Ry. 158.


text:
    CUMMINS versus COLGIN.

    QUESTION IN THIS CASE.

      The statute of limitations — how affected Toy previous adjudication.

    1. The 10th section of the act of 1802, “for the limitation of actions,” &c. does not embrace within its letter, or the equity of its construction, a caso, whei;e a plaintiff seeks to recover the amount of a promissory note, which, as defendant to a previous chancery 'cause, (between the same parties,) he had ■ relied on, as. an off-set; but which had been disallowed, and a decree rendered against him.
    2. In such case it was held, that notwithstanding the chancery decree professed not to prejudice the right of action on the note; yet it could not restrain the right of the party to the plea^of the-statute of limitations.
    In this case, an action of assumpsit was brought, by the plaintiff in error, in Sumter Circuit Court, against the defendant, administrator of Irby. The cause of action was a promissory note, executed by Irby, in his life-time, to one Comegys, and, by the latter assigned to the plaintiff.
    In defence to the action, the defendant pleaded— first, non-assumpsit; secondly, that the claim was not presented for payment, within the time prescribed by law; thirdly, nón-assumpsit infra sex annos; fourthly, actio non-accrevit infra sex annos. The plaintiff joined issue upon the first plea; and to the rest re-plied, specially. ,

      The replication to the fourth plea, (applied also to the third,) averred, that the said defendant, as the administrator of the said Irby, had exhibited his bill in Chancery against the said plaintiff, as surviving partner of the said Irby, praying a full account of all partnership transactions, existing, beforetime, between the said Irby and the said plaintiff. 'That among other things, the said plaintiff insisted, in that cause, to have allowed to him, the amount of the note, sued on in this action, as an off-set to the demands of the defendant And he further averred,, that when the said cause in Chancery came on to be tried, the amount of the said note, by the decree of the Chancellor, was disallowed to the pláintiff, upon the sole ground, that the said note went into the possession of the plaintiff) after the filing of the said defendant’s bill: that, afterwards, for the purpose of revising supposed errors in the said decree, the same was taken to the "Supreme Court, where it was ordered, adjudged and decreed, among other matters, that the decree of the Chancellor below, upon the matter of the said promissory note, should be affirmed ; hut without any prejudice to the plaintiff's right of action, against said defendant, upon said note aforesaid. And thq plaintiff further averred, in his replication, that the said present action was commenced within one year, after the final decree in the Supreme Court was rendered ; and all this he was ready to verify, &c.
    To the matters contained in this replication, the defendant demurred ; which demurrer was sustained by the Court, and judgment,rendered for the defendant, Colgin.

      A writ of error was taken to this Court, and the judgment on demurrer, assigned as error.

      Ellis and Peck for the plaintiff in error — Stewart and Thornton, contra.

       For the report of the case between the same parties, alluded to, in this see Porter’s vol. 1, 148

       Aiken’s Digest, page 271, $76.

   Hopkins, J.

The action in this case is assumpsit on a note. One of the pleas of the defendant is the statute of limitations, to which the plaintiff replied, that prior to the commencement of his action, the defendant had filed a bill in a Court of Equity a-gaint him ; that he had sought, in that suit, to obtain the allowance of the note, in abatement of the defendant’s demand ; but that, although it was admitted by the decree, which was made in the cause, to be due, it was disallowed; upon the ground, that the plaintiff’s right on it could not be enforced, by that Cqurt. That, upon the removal of the cause, into the Supreme Court, by writ of error, the decree was affirmed; but the latter decree, declared the decree of the Circuit Court, was affirmed without prejudice, to the plaintiff’s right of action, against the defendant, on the note. The replication contains also an averment, that the 'plaintiff commenced his action within one year next after the decree of the Supreme Court. On a demurrer to the replication, judgment was -rendered for the defendant. It has been contended, for the plaintiff, that his action is maintainable, upon an equitable construction of the section'of the statute of limitations, which provides, that if in any of the actions specified in any of the pieceding sections of the act, judgment be given for the plaintiff, and the same be reversed by 'writ of error; or, if a verdict be given for the plaintiff and, upbn matter alleged, in arrest of judgment, the judgment be given against the plaintiff, then the said plaintiff, his heirs, executors or administrators, as the case shall require, may commence a new action, within one year after such judgment reversed; or given against the plaintiff, and not after.

All the actions specified in the preceding sections of the act, are actions at law.

If the prior suit, stated in the replication, had been at law, the action, in this case, is not within the words of the exception. The decree, in relation to the note, which the Circuit Court made, was not for, but against the plaintiff.

The obvious reason, for making the exception, in the statute, was, that the risk, to a defendant, of having the evidence of his defence lost or destroyed,'by the lapse of time, could not be much greater, in cases within the exception, than it had been, before the judgment was rendered, which was afterward reversed or arrested. Upon the same reason this Court has determimed, that if the bar of the statute, be not complete at the death of one entitled to an action, his executor or administrator shall have a right to it, if it be commenced within twelvemonths from the time of his death; although the bar of the statute would have been perfect, before the expiration of the twelve months, if he had lived. The case was held to be within the equity of the excep-tioo.

^ Years frequently elapse, after the commencement of a suit in Chancery, before its termination — even in a case finally beard, without proof, and dismissed, ■ for want of jurisdiction. The hazard to the evidence of a defence would be greatly increased, by admitting an action, for a matter that a Court of Equity had -previously dismissed, for want of jurisdiction, to be within .the equity of the exception ; and, to allow it to be so, would often defeat the object of the statute.

.We think, if a decree should be made for a complainant, which was afterward reversed by this Court, for want of jurisdiction, in the Circuit Court, of the subject, that the time which elapsed, while the suit was pending, would enter into the bar of the statute, which might be relied on, against a subsequent action at law, for the same thing.

The declaration, in the decree of this Court, that the decree was made, without prejudice to the plaintiff’s right of action, against the defendant, on the note, was probably unnecessary. The opinion of the Court, which preceded the decree, showed there was no decision against the justice of the note; and the declaration was intended only as evidence, that there was no such decision. To allow it any other effect, would be to assert power in this Court, or a Court of Equity, to dictate to a Court of law, what judgment it should render on the note.

No Court of Equity has attempted to restrain the defendant, from relying upon his plea. Whether such a Court have power to do so, as was contended by the counsel for the plaintiff, we think it unnecessary now to determine.

If the plaintiff had been prevented, by an injunction, from asserting his right, wdiich is a legal'one, at law, the time, during which the injunction was continued, could, not contribute to the bar of the statute.

Let the judgment be affirmed.

       Aik. Dig. 271

       1 Stewart, 254


text:
    GREER versus McGEHEE.
    QUESTION IN THIS CASE.

      Points of practice in relation to continuances of causes, &c.
    1. All causes not tried, or otherwise disposed of, during a term, stand continued of course ; and it is not necessary to have entered a special order of continuance in each. •
    2. Where a cause was continued, on an agreement to try it in a special' mode, at a designated term, it was held error to trv.it in that mode at a term subsequent to the one agreed upon.
    Assumpsit in Tuskaloosa County Court,on a note of hand, executed by Greer. The writ was issued to June term, 1829: and at December term, 1831, entries were made upon the record, of the following effect — “'In the case of McGehee, use McGehee vs. myself, in the County Court of Tuskaloosa countj, I agree that it shall be tried on its merits, at the June term of the said Court, 1832, waiving the plea of the statute of limitations, on the condition that the plaintiff agree toa continuance thereof- and positively to try it at said term : the trial to be before George Starr and II. Perkins, and a third individual to be chosen by these two, in the place of a jury; evidence out of the state, to be taken by interrogatories — 15 December, 1831.- — Robert Greer.”' “ I agree to the above condition on the part of the plaintiff, 15 December, 1831, Geo. W. Crabb, attorney for plaintiff.”
    At December term, 1832, it .appeared, that the parties came ; and tlie defendant having objected to a trial at said term, on the ground, that the terms of said agreement of December term, 1S31, had not been complied with ; the Court overruled his objection, and the cause was tried under the said agree-' ment, and by the said special jury ; who gave a verdict for the plaintiff; and judgment was rendered accordingly.
    A writ of error having- been taken to this Court, it was insisted, among other matters, by

      Stewart and Thornton on the part of the plaintiff in error' — first, that there had been a discontinuance; second, that the Court erred, in trying the cause, under the special agreement, at December term, 1832.

      Crabb, contra.

   Hitchcock, C. J.

This was an action of assump-sit, brought by the defendant in error in the County Court of Tuskaloosa county, returnable to the June term, 1829, of that Court. The cause was continued from term to term until December term, 1831, whep an agreement was made to the following effect, to-wit; “ that it (the cause) should be tried on its merits at the June term, 1832, of said Court, waiving the plea of the statute of limitations, on the condition that' the plaintiff agree to a continuance thereof, and positively to try it at said term. The trial to be before George Starr and H. Perkins, and a third individual to be chosen by those two, in the place of a jury: evidence out of the State to be taken by interrogatories.”

The cause was not tried at that term, and no entry of record was made, either of a general continuance of the cause, or of the agreement above alluded to.

At the December terns, 1832, the cause was tried, by order of the Court, under the agreement.; the arbitrators above named, together with on-e Johnson, chosen by them, acting as a jury; the plaintiff in error objecting to the trial; and a verdict and judgment was rendered against the defendant.

Two errors are assigned and relied on, to reverse the judgment. First: that the cause was discontinued at June term, 1832 — there being no order of continuance. Second: that there is no verdict on which a legal judgment can be sustained.

In relation to the first assignment, it is sufficient to remark, that by law:, all causes not tried, or otherwise disposed of, at each term, shall stand continued, of course, to the next terra. It is not necessary, therefore, to have any order of continuance entered, in each case ; it is only necessary,, that no disposition appears to have been made of the case.

2. But we think there is error in the second assignment. The agreement to try the cause by three jurors, was confined to the June term; 1832 ; beyond which time the defendant was not bound to try it in that manner. After that term, the cause stood as every other on t,he docket — to be tried in the ordinary manner. To have bound the defendant, it should appear by the record, that a continuance of the terms of the agreement had been made at the June term, 1832.

Let the cause be reversed and remanded.

Collier, J. not'sitting.


text:
    HOOPER versus PAIR.
    QUESTIONS IN THIS CASE.

      As to evidence, in cases of the trial of right of property.

      Rendition of costs against the sureties of a claimant.

    1. The claimant of property, levied on under an execution-, cannot impeach the fairness of the judgment, on which the execution issues, by evidence that it ivas fraudulently obtained.
    judgment, proceedings it, by confession or default, against one whose property is subsequently levied on, under execution in favor of a stranger, form no evidence against the latter, in proceedings to try the right of property, to show the fairness of the debt, upon which the claimant obtained the. first judgment.
    S. In-proceedings to try the right of property, levied on, under execution, judgment for costs cannot be rendered against the sureties to the bond given by the claimant.
    This was a proceeding in the Circuit Court of Tuskaloosa, for the purpose of trying the right to' certain slaves. The slaves hp.d been levied on, under an execution issued upon a judgment, in favor of William Pair, ¡is of the property of Obadiah Hooper; and were claimed by-John its. Hooper.
    On the trial, after the plaintiff in execution had closed his testimony, the claimant proposed showing, that the judgment on which the execution had issued in favor of the plaintiff, whs obtained by fraud; in that, in the cause of action therein, was a covenant, wherein the said Obadiah Hooper had stipulated to make titles to certain lands: and the effect of the testimony was to show, that the covenant had been performed ; and that the said Pair had received the titles, and was in peaceable possession of the land'. But the Court refused to admit this evidence, and the claimant excepted.
    The claimant., John W. Hooper, for the purpose of sustaining his claim, then offered, as evidence, transcripts of records of judgments obtained by confession and default, against the said Obadiah Hooper, under which he, the said claimant, had purchased the slaves in question, at a sale made by a sheriff, by virtue of the said judgments. In reference to this testimony, the Court instructed the jury, that a judgment by confession or default, when offered in evidence against a person, neither a party or privy to it, was not, of itself, evidence of indebtedness, on the part of the defendant in the judgment,: and that it was necessary to show, by some ,extrinsió proof, that the defendant in execution was indebted to the claimant.
    On this state of facts, a verdict finding the slaves subject to the execution, was rendered ; and a judgment for costs was entered against the claimant and his sureties to the bond.
    The claimant took a bill of exceptions, and by a writ of error, removed the cause to this Court.

      Ellis & Pede, for the plaintiff in error; Wilson and Crabb, contra.

   Hopkins, J.

The first question presented by the record, in this case, is, has the claimant a right, upon the trial of the right, to property, to prove that the judgment of the plaintiff in execution, had been fraudulently obtained by him? Into the compten-cy of such evidence to procure any remedy which the common law or Chancery might have afforded to the claimant, if he hud not resorted to the procedure allowed by the statute law, it is not necessary, now, to inquire.

The statute, under which the issue between the parties was made, directs, that it shall be so formed as to try the right of property; and the issue in the case, was, that the property was, at the time the levy of the execution was made upon it, subject to the satisfaction of the execution. The statute neither authorises an issue which would, nor does the one in the case, question the regularity or justice of the judgment of the plaintiff in the execution. A verdict upon such an issue, must be, that the property belongs either to .the claimant, or is subject to the execution against the defendant. The right of neither depends upon the judgment: neither claims the property under it. At the time of the trial of the right to the property, the judgment was a link in no one’s chain of title to it. That the judgment was just, neither the law nor the issue, required the plaintiff to litigate, or authorised the claimant to inquire of. The admission of the evidence, which the claimant offered, to show 1 hat it had been fraudulently obtained, would have violated the settled rule, that requires all testimony, not pertinent to the issue, to be rejected.

We shall next inquire of the correctness of the instruction of the Circuit Court, to the jury, as to the effect of the evidence of the claimant which was offered and admitted.

The evidence consisted of a transcript of a record .of a judgment by confession, of a Court in the State ■of Tennessee, in his favor, against the defendant in execution — a judgment, founded upon that rendered for him, by a Court of this State, by default, against the same defendant — an execution, which issued upon the latter judgment, and a sale of the property, by the sheriff, who levied the execution, to him.— upon this testimony, the Court instructed the jury, that a judgment by confession or default,- was no evidence against the plaintiff in execution, who was neither a party nor privy to it, that the defendant in execution was indebted to the claimant, when such judgment was rendered. From the commencement of the first suit, to the end of the second, and the termination of the matter, in the sale of the property by the sheriff, no inquiry was, or could have been made either by the Court in Tennessee, or in this State, into the existence of the debt, alleged to be due from the defendant in execution, to the claimant. In one Court, it was confessed — in the other it was demanded ; and the defendant did not appear to deny it. If the claimant had made title to the property through a bill of sale, from the defendant to him, which acknowledged the payment, by him, of an ample consideration, such an instrument, without proof, by a witness, that the consideration had been paid, or the payment of it secured, would have been no evidence against the plaintiff, of title in the claimant. A judgment, execution, and a sale, _ under the latter, form a mode of transferring property, from the defendant to the judgment, to the purchaser under,the execution; but, as no point was tried, in the cause, the judgment, though it is conclusive .evidence, against the defendant to it, that it, was for ¿a just demand, is no better proof against the plaintiff in execution, than a bill of sale, without the testimony of a witness, that it was made upon a valuable consideration would be. In this transfer, the knowledge ofthe consideration for it, or the want of one, isas exclusively confined ‘to the parties, as it would be, if the property had been sold by the defendant in execu tion, to the claimant, in the absence of all persons, who might have been witnesses. '

„T , , ... . We think there was no error in the instruction. But the Court erred, in rendering-a judgment for the costs, against the sureties of the claimant.

Let the judgment be reversed, and the proper judgment be rendered, against the claimant.

Collier, J., not sitting.

       Aik. Dig. 168.

        Robertson F. C. 488, 489—1 Marshall 179.


text:
    LINDSAY versus KING.
    QUESTION IN THIS CASE.

      As to a levy■ upon property, the claim to which has ' been tried under execution.

      1. Property levied on under execution, and claimed by third persons, under the statute, (the right of which is found against them,) cannot be subsequently levied on by virtue of a judgment, obtained against the claimants and their sureties, on their bond to re-deliver.
    In error from Talladega Circuit Court.
    Certain slaves having been levied on under an execution, in favor of Edmund King, issued to the sheriff of Talladega county, as of the property of Lucy ■Carlton, the same were claimed by the plaintiff in error, under the statute.
    On the trial of the right of property the plaintiff in execution, in order to establish the right of levy, produced in evidence an execution against Lucy Carlton, and Robert Carlton, issued from the Circuit Court of Bibb; and which emanated from a judgment obtained in that Court in 1834. This judgment was founded on a bond, executed by one Isaac Carlton and the said Lucy, conditioned to deliver to a certain officer, slaves (part of whom included the present in contest,) which had been levied on as of the estate of one Thomas Carlton, a claim to which had been interposed by Isaac and Robert \V. Carlton; and to which bond the said Lucy was the surety. This claim, after trial, was determined adversely to ,$he claimants; and the judgment was founded upon the non-delivery of the slaves, as stipulated in the bond. The defendant, in error subsequently had an execution levied, under this judgment, upon part of the slaves which had before been levied on as of the property of Thomas Carlton ; and to try the right of which, (they being in the possession of Lindsay,) this proceeding was instituted. The claim was determined in favor of the plaintiff in execution ; and a writ of error, founded upon a biM of exceptions, brought the case into this Court.
    The only question was, whether the property, the claim to which, under execution against Thomas Carlton, had been determined against the claimants and thoir surety, could be levied, by virtue of an ex-epution issued on the. judgment, obtained against the latter on their bond, to re-deliver the property claimed.

      Ellis & Peck and P. Parsons for the plaintiff in error ; Marclis, contra.

   Collier, J.

The defendant in error obtained several judgments against Thomas'Carlton, in‘the Circuit Court of Bibb county. Executions were issued and levied on several slaves, which Isaac Sr and .Robert W. Carlton claimed as their properly : the right being tried and found against them, they prosecuted an appeal; and a bond was executed by Isaac S., and Lucy Carlton as his surety — conditioned to pay damages, and re-deli ver the property, if the right should be found against the claimants in the Circuit Court. The claimants being again unsuccessful, and failing to return the slaves, pursuant to the condition of the bond, a suit was brought for the breách, against Lucy Carlton, in the Circuit Court of Bibb. Judgment being obtained, she sued out a writ of error to this Court, with Robert ,W. Carlton as her surety; which judgment being here affirmed, execution' issued from the Circuit Court to the sheriff of Talladega against the estate of Lucy and Robert V/. Carlton, and was-levied on one of the slaves (and her child) which had been levied on to satisfy the execution against Tho,mas Carlton. The property was claimed by the plaintiff in error, and atrial had in the Circuit court of.Talladega, and a verdict and judgment against him ; from which he prosecutes his-writ of error to this Court.

The first question naturally suggested, is - this — =• can the slaves in controversy, because of the condemnation of the mother, to satisfy the execution-against Thomas Carlton, be made subject to an execution against Robert W. and Lucy Carlton, whose right has been negatived by a verdict and judgment?

There is no pretence that Thomas Carlton, byanjr 'act of his, has transferred the slaves in question, to the defendants in execution ; nor is it insisted that they have acquired a title to them from any other source. But the law, operating silently, yet efficiently — has vested, as it is argued, in Isaac S. and Robert W. Carlton, (and ,of consequence, in Lucy Carlton, who comes in as surety of Isaac S.) from the very moment of time there was an adverse determination of their claim, an interest in the slaves,

which rendered them liable to be sold as their property, to satisfy the execution of the defendant in error. This argument is founded upon the supposition, that as judgment has been rendered against them on their claim of property, they should have the property tó enable them to satisfy that judgment. "Without, intending to deny that the property is primarily liable to satisfy the judgment against Thomas Carlton, and that, even in favor of these claimants — ■ we are sure that tho doctrine of transfer, by operation of law, has been pushed, in argument, qui'o beyond tLie authority of any principle or decision, of which we are aware.

The fieri facias directs the. sheriff, 1 hat. of the “goods and chattels, lands and tenements, he cause to be made,” &c. If by the judgment, subjecting the property to die satisfaction of the execution of of the defendant in error, these claimants acquired an interest in 1 lie slaves, which would ant humo them to be levied on as their “goods and chattels,” — would they not be subject 1o seizure, to satisfy judgments obtained by their geueial creditors. Wre are inclined to think that such would be, the result, (at least at law) from tho recognition ofthc principle, which is essential to tho success of the defendant in error. It is sufficient to stale such a consequence, to persuade us the principle is not maintainable.

If it were possible, for Robert W. and Lucy Carlton, to acquire such an interest in these slaves as to make them subject- to satisfy their debts, surely that, interest could only be created by tho satisfaction of the judgment against TJiomas Carlton. Until this has been done, there is no act of theirs which could pass 1o them a tangible right.

In the case of Mills, et al. vs. Williams, the doctrine of equitable lien was extended quite as far as we feel authorised to carry it. Iu that caso there was a claim of properly, and (lie claimants were unsuccessful : they satisfy the judgment — the property is then levied on and sold to satisfy the execution against defendant in execution, and several other executions against him: a rule is entered against the sheriff', when the question as to the appropriation of the proceeds among the judgment creditors, is brought up. The Court say — “the execution was suspended in its operation, on the property levied on, but it lost not the lieu acquired. It was not superseded, and might, at the same or any other time, have been levied on other property for satisfaction.” Further- — “ the execution could have run from the County Court against all tire property of the defendant, until it was satisfied: There is no question, but when it was levied first on the slave Melinda, it acquired a claim 1o satisfaction as far as the proceeds of the sale of her would have went. This was prior to the Hen .of any other of the executions. A majority of the Court believe, that, the lien there acquired, was not lost by the ,trial of the right of property.” The Court there determined, that the claimants having satisfied the judgment against them, are subrogated to the righls of the plaintiff in execution, and seem to consider them as occupying an altitude similar, to sureties; and that an unsuccessful claimant of property who has satisfied the judgment against him may avail himself of an execution against the defendant for his own indemnity, and subject the property, the 1 itie to which has been controverted, in preference to other judgment creditors — unless the lien of. that f. fa. has been lost. But in that opinion, there is not the most remote intimation that the property could be reached in a 9ase situated as the present. And whether we consider 1 he question now presented, upon, principle, or wiih reference to authority, we are convinced that the slaves in question, can not be reached by an execution against Robert W. and Lucy Carlton, and that if defendant in error would litigate the right to them, he should sue out a fieri fiadas against the estate of Thomas Carlton.

. The view which we have taken, being' decisive of the right of the defendant in error, to subject the slaves to sale in this proceeding. We decline examining the exceptions to the instructions given to jul7‘ _ ’ ■

_ The judgment is reyersed.

       an. Term 133.


text:
    THE STATE ex rel. DRIVER, et al. versus THE COMMISSIONERS of Roads and Revenue of Talladega.
    Qüestíos is this case.

      Relative to mandamus, directing the establishment of a ferru.

    I. A peremptory mandamus will not be awarded against an irtfe-l’ior tribunal, directing it to grant a right, under a statute, to which the party applying lias not entitled himself'.
    £ S<>, where one sought to obtain, frem the Court of Commissions! f Revenue and Roads, a license to a ferry, (under the 17th section of' the act of 1821,) and the petition showed that he was not too owner of the soil, on both side's the river, and that a feiry had been already established by a proper tribunal; it was held, that this Court would not reverse an order of the Circuit Court, refusing to grant a mandamus.

      . In litis ense a relation was filed, in Talladega Circuit Court, in the name of the Stateyif Alabama, by Driver and others, praying a mandamtls to the Court of Commissioners of Revenue and Roads, of that County, to compel the- issuance of a license to the re-lators. lor a public ferry. The petition set out, that the. relators were the owners of a certain fraction of land, situate upon the easiern bank of the Coosa river; that ibero were two public roads in that, vicinity, one immediately on the upper, and the other on ihe lower side of the Talladega creek, which passed through said fraction, to the said river, Coosa; that, on the vuide.rn sido of said river, Coosa, directly op-posiie said fraction, a public road, called the Stale road, lending from Tusktiloosa County to Kemulgee, reel the said river. That no license, to establish a public ferry, had been granted by the proper authority of Talladega County, on or across said river, where said road meets said river, nor within two miles of said road : that the public convenience required that a public ferry should be established at that place. That, as the owners of the land, on tho eastern bank of said river, the relators, believing themselves entitled to a license, to establish a ferry, from the eastern bank of said river, made a written application to the Court of Roads and Revenue of said Comity of Talladega, for the necessary order.— That said Court, at the hearing of the application, determined that they had no authority to grant the license prayed for, because a ferry, if there granted, would be within two miles of one already established by the Court of Commissioners of Roads and Revenue, for Shelby County — and so, rejected the relator’s application. The petition closed with a prayer of process, to compel the said Commissioners to grant, the licence or answer at the next term of the Court, &c. Upon the filing of the relation, the Circuit Court granted an order, conforming to the prayer of the petition.
    At the ensuing term of the Circuit Court, the commissioners, in obedience 1o the said order of the Circuit court, filed their answer to the relation, setting ou4, that, upon an investigation of the said application, it hud been made to appear to said court, that the court of commissioners of roads and revenue, for the county of Shelby, had established a licensed ferry, at said place, alluded to, in the application of said relators: and that, according to their construction of the statute, they had no authority to grant a license to the said relators'.
    The Circuit Court, upon, the considerafion of this answer, overruled the motion for a mandamus: and a writ of error was thereupon taken, by the relators, to this Court.

      Ellis & Pecl-c, for the plaintiff's in error; Marclis and Chillón, contra.

   Hitchcock, C. J.

This is a writ of error from the Circuit Court of Talladega County, to a judgment of that Court, refusing to award a peremptory mandamus to the Commissioners of roads and revenue of ¿.aid County, directing them to grant, to the relators, a license for a public ferry, over the Coosa river, at the mouth of the Kernulgee creek, in said county.

The petition is filed in the name of the State, at, the relation of E. M. Driver and others, stating that the petitioners became the owners, in Jan’y, í S34, of a fraction of land, immediately upon the eastern shore of the Coosa river, embracing the eastern bank of said river, to the water’s edge. That there are two public roads passing through said land — the one on the upper, and the other on the lower side of the Kemul-gee or Talladega creek, at its junction with the Coosa, That there is, on the western side of the Coosa, immediately opposite the said roads, on the eastern side of "the river, a public road, called the State road, leading from Tuskaloosa county to said Coosa river. That no license to establish a public ferry lias been granted by the.commissioners’ court of roads 'and revenue of Talladega county, across said river, where said roads meet, nor within two miles thereof. That the public convenience requires the establishment of such a ferry. That the petitioners, as the owners of the land, on the eastern side of the river, are en-tilled, as they believe, to a license, to establish a public ferry, from the eastern bank of said river. That they made an application, in writing, to the Court of roads and revenue for the county of Talladega,'at the May Term, 1834, of said court, for a license.— That they made manifest to said court, at September term, 1834, (to which' term said petition was continued,) their title to said land, and all the other facts-in their application, as they were advised, necessary to entitle them to the license for the ferry. .That the said Court determined they had no authority to-establish the ferry in the county of Talladega, upon said application, because the same would be within two miles of a ferry, .licensed by the counly court of Shelby county, on the western bank of said river— . and rejected the petition of the relators for that reason.

On this petition, the Circuit; court of Talladega county, granted a rule upon the defendants, direct--ing them, either to set aside their said order and grant, the petition, orto show cause for not so doing,, at the May Term, 1835, of said court.

The court of roads and revenue, at the September Term of die circuit, court, for cause, in answer to-the rule, state, that upon the investigation of said application, one Louis S. Tularn, by eertian parol and record testimony, procured by him, from the com-missir,ners of roads and revenue of Shelby county, satisfactorily convinced them,'Unit there was established at said place, for which ihe petitioners had made application, a ferry, which said ferry had re--ceived the sanction of the .legislature of the State of Alabama, and the repeated sanction of the legally constituted authorities of Shelby county. That, therefore, they, according lo their construction of the statute regulating the establishment of ferries, did not consider themselves authorised to grant the license applied for, by the relators ; upon the filing of which, the Circuit, court refused to grant the man* damus, and dismissed the petition.

Many points have been ¡nado by the counsel, on each side, which have been very elaborately argued; to which the court has listened, with attention and pleasure.

The first and only one, to which the Court has found it necessary to investigate, is, whether the rela-tors have; in ibeir petition, established a right, in to the thing for which they have applied ? This is an indispensable requisite, in appli-for a mandamus; and without which,.none will be granted.

It. was held in lho case of Dyer vs. The Tuskaloosa Bridge Company, and is admitted here, that u the regó hit i tig and keeping in repair, roads,bigh-ways, bridges and ferries, for public use and convenience, is an exercise of the supreme authority of the State.” That, upon this ground the Legislature has delegated certain authority to the commissioners of roads and revenue in each county; and it is on the ground that the proper tribunal lias refused to grant the relators, by, as they contend, an erroneous construction of these laws, the rights which are secured to t(hem under the sajne, that this application made.

The only provision applicable to this question, is to he found in the 171 h section of the act. relating to roads, “ when bridges and ferries; land is owned by the which declares, same person, on that both. sides of a river, over which it may be necessary to establish a ferry, such person shall have the ferry established on his land, on both sides, if he desire it, unless public convenience would be, thereby, prejudiced. But if the 1 and of s.uch person is most suitable, on one side of such river, and not on the other, then the court may establish such ferry, so as to produce the most public good, and least private injury; but no public ferry shall be established within less than two miles, by water, of any ferry already established; unless on a river at, or within two miles of any town.”

To bring the relators within the provisions of this section, three things, are necessary :• first, 'that they should be the owners of the land, on both sides of the river; second, that their landings should be the most suitable; and third, that no public ferry shall have been established within two miles, by water, of .the place, at which they wish to have theirs established.

In the case before the Court, the petition shows, not only that the relators are not the owners of the soil, on both sides of the river, but that there was, at the time of the application, a ferry already established, by the County Court of roads and revenue, of' the County of Shelby. These two facts being admitted, either of them is decisive of this case.

"Without the ownership of the land, on both sides, the right can not be exclusive in the relators, in any event: and, the existence of the ferry, by order of a Court, having jurisdiction of the subject matter, whether exercised rightfully or not, is fatal to this application. — It involves an investigation of the rights of third persons, which, can not he questioned, in this mode of proceeding.

There is no prescriptive right to a ferry, in this State — the ownership of the land, on the banks of our navagable streams, gives none. The condemnation of the lands through which a public road may run, under the 2nd section of the act of 1821, giv-owner compensation, is ail that he has aright to claim. This secures the use of the banks, for the purpose of the ferry ; and unless the relators can bring themselves within the provisions of the 17th section of.the act above alluded to, they have no right to complain. Had there been no ferry established, at the place applied for, and it appeared, that there was a pubic road at that place ; and also, that the ferry applied for, was within the jurisdiction of the inferior Court; this Court would have granted an order to compel that Court to establish the ferry, and grant a license; but they would not have directed to whom it should issue. This can only be done, when the relators shew a right, in themselves, to the exclusion of all others. In all other cases the Court of roads and revenue is invested with a discretion, which is not within the revising power of this Court, in a proceeding of this kind.

It is contended, by the counsel for the plaintiffs in error, the river being, the dividing line, between the two Counties of Shelby and Talladega, each County has a right to establish a ferry, on its side; and that, in such a case, the prohibition, that no ferry shall be established within, two miles, by water, of another, does not apply.

We can not yield to the force'of this reasoning. The licensing and use of a ferry, necessarily require the use of both banks of a river': andj if one is established, on one side, it excludes the idea of the legitimate establishment of another, on the opposite side,- *or within two miles, by water, on either side. Whether there is not a necessity" for further legislation, in a case where a navigable stream divides two counties, is a question which does not properly arise in this case. We, therefore, forbear to express any opinion upon it.

We place our decision upon the ground that the relators have not shewn any right to the ferry, under the section alluded to. Whether the return is sufficiently explicit; also, whether the discretion, which is vested in the Court of roads and revenue, (admitting the right to have been made out,) has been exercised : and, whether a writ of error would not be the' proper mode of revisal — are questions, we express .no opinion upon.

Let .the judgment be affirmed.

      2 Aik.Dig 353

       1 Cranch, 137; 8East,219; 1Wen 318; 3Dal. 42; 3 Bin 273; 5ib 87-6 ib 456; and 556; 4 Bacon 505-1 Yates 46; 2Strau 880

       2 Porter's Rep. 303.

       Aik. Dig. 363, §27.

       Aik. Dig. 359,§13.