author: Mr. Chief Justice ENGlisu

text:
    Clark as ad. vs. Holt.
    In passing upon a question of law arising upon a demurrer to a plea in the court below, this court will look alono to the plea and tho declaration to which it responds. Allegations or denials contained in other pleas, upon which no question arises on the appeal, are not to bo regarded, in determining the sufficiency of the plea demurred to.
    By the common law, the powers of executors, administrators, and guardians, as such, did not extend beyond the limits of the local government, in which they were appointed, for tho purpose of bringing suits, and our statute was designed to enlarge their powers.
    The disposition of the personal estate of any ono deceased, is determined by the law of the domicil; and if he has effects in a foreign jurisdiction, and administration be there granted on his estate, it is merely ancillary or auxiliary to the administration of the domicil, so far as regards the collection of the effects and the proper disposition of them, but subservient to the rights of creditors, legatees and distributees, who are resident in the country whore the ancillary administration is granted.
    Where letters of administration have been granted on the estate of a deceased person, by the proper authority in one State, and afterwards his will probated in another State, the place of his domicil, and letters testamentary granted by the proper authority, the letters of administration, previously granted, are not thei'eby vacated.

      Where slaves, held by an ancillary administrator in another State, have been taken from his possession, or pass to the possession of the defendant, by virtue of a bailment, such administrator would have the right to institute an action for their recovery in this State, although there may be a principal administration in some other State.

      Appeal from the Circuit Cov/rt of Pulaski County.

    Hon. "William Ii. Fjsild, Circuit Judge.
    Fowlbe, for tbe appellant.
    The plea tendered no 'material issue. It does not show that letters testamentary were granted to anybody. If it had done so, it could not affect Clark’s letters granted in Tennessee, or bis right to sue, as administrator, under our statute.
    If letters testamenta/ry had been granted in Kentucky, under general principles of law, they would have been wholly inoperar live in Tennessee. See Fendwick vs. Sear’s admr., 1 Pet. Cond. Rep. 310/ Dixon’s ex. vs. Ramsey’s ex., 1 Pet. Cond. Rep. 548 / Kerr vs. Moon, 5 Pet. Cond. Rep. 685 / Story Conflict of Laws, sec. 511, 512/ el seq. 523.

      Biot, the mere statement of a probate falls far short of displac-i/ng an administrator, oven in the Slate where the probate is made. Newton ex. vs. Cooke ex., 10 Ark. Rep. 176.
    Our statute expressly authorizes any foreign executor or administrator, to sue, and if half a dozen of them had been appointed in as many different States, any one of them would have a right to sue here; and the one who first commenced the suit could not be interfered with at law, by any of the others, or by a defendant. Such a proceeding would be a virtual nullification of the statute. See Ark Digest, {edition o/’1848,)yi. 147, oh. 7, sec. 1/ Story Conflict of Laws, sec. 521.
    Even, if the probate of the will (or a grant of letters, had such been the fact) would have operated in Kentucky as a revocation of letters of administration in that State, such revocation could not extend beyond the territorial limits of Kentucky into Ten

      nessee or Arlccmsas. See Story Gonfl. of Laws, see. 7, 22, 23, 33 to 37, see. 98.
    Curran & Gallagher, for the appellee.
    It has become a settled principle of international jurisprudence, and one founded on a comprehensive and enlightened sense of public policy and convenience, that the disposition, succession to and distribution of personal property, wherever situated, is governed by the laws of the country of the owner’s or intestate’s domicil, at the time of his death, and not by the conflicting laws of the various places where the goods happened to be situated. 2 Kent's Oom., page (marginal] 429, et seg.

    “To hold that the lex loci rei sitce was to govern as to personal property when the domicilinm of the intestate was in a different country, would be a gross misapplication of they’ws gentium [“per Lord Tiiurlow, in the case of Bruce vs. Bruce, 2 Boss. & Pull. 229 note.] Ib. 430.
    Personal property is governed by the lex domicilii, real property by the Hex rei sitce.” Story Oon. of Lems, sec. 464.
    “It is a clear proposition, not only of the law of England, but of every country in the world where law has the semblance of a science, that personal property has no locality. The meaning of this is not that personal property has no visible locality, but that it is subject to that law which governs the person of the owner; both with respect to the disposition of it and with respect to the transmisión of it, either by succession or by the act of the party, "it follows the law of the person.” Lord Loughborough, (Sill vs. Worswick, 1 LL. Black. 690,) and Judge StoRY commenting on the above, says: “And this doctrine has been constantly maintained both in England and America, with unbroken confidence. Story's Oon. of Laws, see. 380/ 2 H. Black. 402/ Holms vs. Bemsen, 4 John Oh. L¿. 460/ Piper vs. Piper, Ambler Pep; 25/ 2 Bell. Oom., 2 to 10/ Greer vs. O'JDcmiel, 2 Bin. P. 349.
    Probate is not the foundation, but only the authenticated evidence of the executor’s title, for he derives all his interest from tbe will itself, and tbe property of tbe deceased vests in bim from tbe moment of tbe testator’s death. 1 Williams on Mv.,p. 172/ Menslids case, 9 Go. 380/ Qraysbrooh vs. Fox, Plowd. 281/ Comber’s case, 1 P. Wms. 767/ Smith vs. Miller, 1 T. R. 480/ Wol-ley vs. Glande, 5 B. ds A. 744/ 8. O., 1 Fowl. <j& Ryl. 409. Hence, tbe probate wben produced, is said to have relation to tbe time of tbe testator’s death. Ib. Qra/ysbrooJe vs. Fox, Plowd. 381 / Went. Ex. -81/ 2 Sta/rlcie on Evidence 616.
    On proving the will, letters of administration previously granted, cvre void. Toller L. of ex. 113 / 1 Com. Digest, 368/ 14 Peters 39/ 1 Sterne 429/ 2 Id. Raymond 829.
    If tbe grant of letters of administration are void, tbe mesne acts of tbe administrator done between tbe grant and its revocation, shall be of no validity: as if administration be granted on tbe concealment of a will, and afterwards a “will” appear, inasmuch as tbe grant was void from its commencement, all acts performed by tbe administration in that character, shall be void equally, nor can they, although tbe executor should refuse to act, be made good by relation. 1 WilUanns ex.AOQ: Abram vs. Oumiinig-ha/m, 2 Lev. 182/ 8. 0., Freeman 445/ 1 Vent. 363/ 2 Mod. 146/ T. Jones 72/ 3 Eeb. 725.
    So in Graysbroole vs. Fox, Plowden 276, an action of detinue was brought by an executor against tbe defendant, who bad purchased goods belonging to tbe testator, from one to whom tbe ordinary bad, immediately after the testator’s death, and before tbe executor bad proven tbe will, granted administration; and it was bolden that tbe executor, who sued after probate, might recover. Ib 301.
    So, if administration be granted before tbe refusal of the executor, a sale by tbe administrator of tbe testator’s effects, shall be void, although tbe executor aforesaid appear and renounce. Ib. Abram vs. Cumiinigham, 2 Lev. 182. Or if tbe executor omit proving tbe will, whereby administration is granted to a debtor, tbe executor may afterwards prove it, and then sue tbe administrator for tbe debt which is not extinguished by tbe administration, lb. Baxter <& Boles ease, 1 Leon 90/ O. K. vs. Needham, 1 Brownl. 69.
    A release by an administrator, under a void grant, is invalid. Throckmorton vs. Nobby, 1 Brown 51.

    "Wherever a grant of letters of administration is in derogation of the rights of an executor, it is void. Lb. 404. Semme vs. Sem-me, 2 Lev. 90/ 3. G, T. Raymond 224/ Byrne vs. 8yme.

    We suppose that it is a point beyond caviling, that neither by the jus gentium, nor by the common law, is a foreign executor or administrator entitled to maintain a suit in our courts, in virtue of his original letters of administration : (2 Story on GorifAct of Law, see. 515, et seg.,) but derives such right from our express statutes alone: but inasmuch as our statutes are in derogation of the common law, they must be strictly construed.
    Where there are different administrations granted in different countries, those which are in their nature ancilliary, are, as we have seen, generally held subordinate to the original administration. Story's Gon. of Laws, see. 518.

    The right of the foreign executor or administrator to take out such new administration, is usually admitted, as a matter of course, unless some special reasons intervene, and the administration is treated as merely auxiliary to the original foreign administration, so far as regards the collection of the effects and the proper distribution of them, lb., see. 513/ Narvey vs. Richards, 1 Mason Rep. 381/ Stevms vs. Gaylord, 11 Mass. Rep. 256/ Case of Mil-leSs estate, 3 Ra/wl. Rep. 312/ Dawes vs. Royston, 9 Mass. 337/ Selectmen of Boston vs. Boylstoii, 4 Mass. 318, 384/ Richards vs. Dutch, 8 Mass. 506/ Davjes vs. Head, 3 Pick. 128/ Hooker vs. Oknstead, 6 Pick. 481/ Davies vs. Estey, 8 Pick. 475/ Jamie-son vs. Hapgood, 10 Pick. 77.
    One of two persons, both subjects of, and domiciled in the same foreign country, dies indebted to the other, and an original administration is granted in the foreign country, and an ancillary one here, held that such debt, though it may have been contracted here, must be referred for settlement to the original administration. Thomas Dawes Judge, <&o. vs. Joseph Head et al., 3 Pick. Rep. 127.
    Those cases are analogous to the case now before the court, because there is no question concerning the payment of any debts, but solely who is entitled to receive the property.
   Mr. Chief Justice ENGlisu

delivered the opinion of the Court.

In Nov., 1849, Bennett GL Clark, as administrator of John Clark, deceased, brought an action of replevin in the Pulaski Circuit Court, against Mrs. Jane J. Holt, for the recovery of six slaves; making profert of letters of administration, granted to him by the Circuit Court of Davidson county, in the State of Tennessee. The declaration contained one count in the cepit, and one in the detinet.

At the return term, the defendant filed fifteen pleas in bar, to some of which, in the progress of the pleadings, issues were taken, demurrers sustained to others, and others stricken from the record.

At the December term, 1851, the court permitted the defendant, on showing cause, to file two additional pleas: 1st. Ne un-gues administrator, to which the plaintiff took issue.

2d. Actio non, because she says that said John Clark made and published his last will and testament, in' due form, and the same ivas in full force, and not in any manner revoked, vacated or annulled at the time of his death. That said John Clark resided, and was domiciled, at the time of liis death, in Allen county, in the State of Kentucky, and after the said grant of administration to said plaintiff, as in said declaration is supposed, that said last will and testament of said John Clark, deceased, was in duo form of law, proved, established, and probated before and admitted to record by the county court of said count;/ of Allen, in the State of Kentucky, being the court, which by the law of said State of Kentucky, had exclusive,] urisdiction and cognizance of such matters. "Which said proceedings of said county court still remain in full force, not in any manner reversed or set aside ; and this, .said defendant is ready to verily, wherefore he prays judgment, <fcc.

To this plea, the plaintiff demurred, on the grounds: 1st. That it neither tendered a material issue, nor stated any fact upon which a material issue could be formed.

2d. That the probate of the will in Kentucky, as alleged, could not affect the administration granted to the plaintiff in Tennessee, or impair his right to maintain this suit, under the statutes of Arkansas, &c.

The court overruled the demurrer, the plaintiff rested, final judgment was rendered for defendant, and the plaintiff appealed.

The sufficiency of the plea copied above upon demurrer, is the only question now presented for the decision of this court. In passing upon this question, we are to look alone to the plea, and the declaration to which it responds. Allegations or denials contained in other pleas in the cause, and upon which no question arises on this appeal, are not to be regarded in determining the sufficiency of the plea demurred to. It must stand upon its own allegations.

Section 1, chap. 7, Digest, provides: “That administrators, executors, and guardians, appointed in any of the States, Territories, or districts, of the United States, under the laws thereof may sue in any of the courts of this State, in their representative capacity, to the same and like effect as if such administrators, executors, or guardians, had been qualified under the laws of this ■State.”

.'By the common law, the powers of executors, administrators, and guardians, as such, did not extend boyond the limits of the local governments in which they were appointed, for the purpose of bringing suits, and this statute was designed to enlarge their powers. How far it enlarges the powers of ancilliary administrators, is an interesting and an unsettled question in this State.

^Reference to some general principles of the common law may enable us to determine the object and effect of this statute, as far as required in this case. It is a general and well settled rule, that the disposition of the personal estate of any one deceased, is determined by the law of bis domicil. Crofton vs. Ilsby, 4 Greenlf. Rep. 138.

Story says, be the origin of this doctrine what it may, it has so general a sanction among all civilized nations, that it may now be treated as a part of the jms gentiwn. Story’s Conflict of Laws, sec. 380, (2d edition.)

Lord Loughborough said, in Sill vs. Worswich, 1 H. Black. 690, “It is a clear proposition, not only of the law of England, but of every country in the world where law has the semblance of science, that personal property has no locality. The meaning of that is, not that personal property has no visible locality; but that it is subject to that law which governs the person of the owner; both with respect to the disposition of it, and with respect to the transmission, either by succession, or by the act of the party. It follows the law of the person. The owner in any country may dispose of his personal property. If he dies, it is not the law of the country, in which the property is, but the law of the country of which he was a subject, that will regulate the succession.”

Lord Ch. J. Abbott, in Doe on dem., Burtwhistle vs. Vardill, 5 Barn. & Cress. 351, said: “Personal property has no locality. And even with respect to that, it is not correct to say that the law of England gives way to the law of the foreign country, but that it is part of the law of England, that personal property should be distributed according to thejus doimeilw.”

Story, after quoting from these decisions, remarks, that “the same doctrine has been constantly maintained, both in England and America, with unbroken confidence, and general unanimity.” Story’s Confl. Laws, sec. 380. See the authorities cited, in support of this remark by Story, and cases cited in 2d American Edition to Jarmin on Wills, by Perkins, p. 3, note 2. This rale is understood, of course, to be subject to such modification as may be made by the legislation of any State within whose jurisdiction the personal property may be situated. Story’s Confl. Laws, sec. 383, 390.

“In regard to the title of executors and administrators, derived from a grant of administration in the country of the domi-cil of the deceased, it is to be considered that that title cannot, dejure, extend as a matter of right, beyond the territory of the government which grants it, and the movable property therein. As to movable property, situated in foreign countries, the title, if acknowledged at all, is acknowledged ex comitate', and, of course, it is subject to be controlled or modified, as every nation may think proper, with reference to its own institutions and its own policy, and the rights of its own subjects. And here the rule, to which reference has been so often made, applies with great strength, that no nation is under any obligation to enforce foreign laws, prejudicial to its own rights, or those of its own subjects. Persons, domiciled and dying in one country, are often deeply indebted to foreign creditors, living in other countries, where there are personal assets of the deceased. In such cases, it would be a great hardship, upon such creditors, to allow the original executor or administrator to withdraw those funds from the foreign country, without the payment of such debts, and thus to leave the creditors to seek their remedy in the domicil of the original executor or administrator’, and perhaps there to meet with obstructions and irregularities in the enforcement of their own rights from the peculiarities of the local law. Ib., sec. 512.

“It has hence become a general doctrine of the common law, recognized both in England and America, that no suit can be brought or maintained, by any executor or administrator, or against any executor or administrator, in his official capacity, in the courts of any other country except that from which he derives his authority to act, in virtue of the probate and letters testamentary, or the letters of administration there granted to him. But if he desires to maintain any suit in any foreign country, he must obtain new letters of administration, and give new security, according to the general rules of law, prescribed in that country, before the suit is brought.” Ib., sec. 513.

“The right of a foreign executor or administrator to take out such new administration, is usually admitted, as a matter of course, unless some special reason intervene to vary or control it; and the new administrator is treated as merelng anvcillcvry or auxiliary to the original foreign administration, so far as regards the collection of the effects, and the proper distribution of them. Still, however, the new, administration is made subservient to the rights of creditors, legatees, and distributees, who are resi-dent_ within the country where it is granted, and the residuum is transmissible to the foreign country, only, when a final account has been settled in the proper tribunal, where the new administration is granted, upon the equitable principles adopted by its own law, in the application and distribution of those assets found there.” Ib., sec. 513; Dawes vs. Head, 3 Pick. R. 128.

Moreover, says the same author, (Stoet) : “It is exceedingly clear that the probate, and grant of letters testamentary, or of administration in one country, give authority to collect the assets of the testator or intestate only in that country, and do not extend to the collection of assets in foreign countries, for that would be to assume an extra-territorial jurisdiction or authority, and to usurp the functions of the foreign local tribunals in those matters.” Confl. Laws, sec. 514,

In Doolittle vs. Lewis, 7 John. Ch. R. 45, 47, Mr. Chancellor Kent, said: “It is well settled that a party cannot sue or defend in our courts, as executor or administrator, under the authority of a foreign court of probate. Our courts take no notice of a foreign administration; and before we can recognize the personal representative of the deceased, in his representative character, he must be clothed with authority derived from our law. Administration only extends to the assets of the intestate within the State where it is granted; if it were otherwise, the assets might be drawn out of the State, to the great inconvenience of the domestic creditors, and be distributed perhaps on very different terms, according to the laws of another jurisdiction.”

Again, Stoet says: “Where there are different administra-Irations granted in different countries, that is deemed the principal or primary administration, which, is granted in the country of the domicil of the deceased party; for the final distribution of his effects among his heirs or distributees, is to be decided by the law of his domicil. Ilence, any other administration, which is granted in any other country, is treated as in its nature ancillary merely, and is, as we have seen, generally held subordinate to the original administration. But each administration is nevertheless deemed, so far independent of the others, that property received under one cannot be sued for under another, although it may, at the moment, be locally situate within the jurisdiction of the latter.” Confl, Laws, sec. 518.

It is alleged in the declaration and conceded by the plea, that letters of administration upon the estate of John Ola/rk, deceased, were granted to the plaintiff by the county court of Davidson county, in the State of Tennessee, and we must presume in view of the above general principles of law, that though John Otarle, was domiciled in Kentucky, at the time of his death, as is also alleged by the plea, the administration was granted in Tennessee for some legal purpose in regard to his estate there.

The plea further alleges, that John Clark made a will, and that after his death, and after grant of letters of administration to the plaintiff, in Tennessee, the will was duly established, probated and admitted to record, before the county court of Allen county, in the State of Kentucky, according to the laws of that State.

It is argued by the counsel of the appellee, as the legal effect of the plea, that on the probating of John Clark’s will in Kentucky, where he was domiciled, the letters granted to the plaintiff in Tennessee, became void by operation of law.

It seems by the common law, that if there be an executor, and administration be granted before probate and refusal of the executor to act, it shall be void on the will’s being afterwards proved, although the will were suppressed, or its existence were unknown, or it were dubious who was executor, or he were concealed, or abroad, at tile time of granting the administration. In such case, it seems, tbe administration is a mere nullity, tbe ordinary having no power to divest tbe executor’s interest. Toller on Executors, 120, 121; Kane vs. Paul, 14 Peters 33.

Whether tbe will of John Clark named an executor or not, or whether on the probate of the will, letters testamentary or of administration with the will annexed, were granted by the county court of Allen county, to any one, does not appear from the plea. But, putting the case in the strongest attitude for the appellee, let it be supposed that the allegation in the plea, that the will was duly probated according to law, &c., implies the grant of authority to some one to execute it, and then what is the legal effect of the matter pleaded, upon the'rights of the appellant, as alleged in his declaration ?

If administration had been granted upon the estate of John Clark by the proper court in Kentucky, where he was domiciled, and afterwards his will had been duly probated, &c., it seems, by the common law, the administration would at least have been thereby vacated, if not void. What the local laws of Kentucky on this subject are, we do not judicially know. By our statute, in such case, it is made the duty of the probate court to revoke the letters of administration. Digest, ch. 4, sec. 27.

But can it be said, that the probate of the will in Kentucky, ipso facto, revoked and annulled letters of administration previously granted to the appellant by a competent court in Tennessee, without any application to that court to probate the will there, and for authority to act under it, within that jurisdiction, and enforce its provisions ?

We are not to suppose that the county court of Davidson county, Tennessee, granted letters to the appellant for the purpose of authorizing him to administer such of John Clark’s estate as was in Kentucky, where he was domieilled, or in any other State, but for the purpose of taking charge of, and administering such of his assets, rights, credits or effects, as were found within the jurisdiction of that court; and this, we have seen from the general principles of law above quoted, that court had the right to do, and no local law of Tennessee to the contrary is averred.

On this hypothesis, there would be no necessary conflict between the administration in Kentucky, and that granted to the appellant in Tennessee, though the latter would be ancillary to the former, and the appellant would have finally to account to the executor or administrator, with the will annexed, appointed in Kentucky, that being the domicil of Jolm Clark, and the laws of the domicil controlling the disposition of his estate, subject to the provisions of his will.

We cannot conclude, therefore, that the allegations of the plea are sufficient to show that the letters of administration, of which the appellant makes profert in his declaration, have been rendered null and void, and his right to sue, as such administrator, at all cut-off.

Again it is argued by the counsel of the appellee, as a legal question presented by the plea, that even if the probate of the will, &c., in Kentucky, did not ipso fauto annul and make void the grant of letters in Tennessee, yet that the administration in Tennessee must be regarded as having been granted for local and not general purposes; that it could be but ancillary to the principal administration in Kentucky, and that the slaves in controversy being in Arkansas, our statute would authorize the executor or administrator of the domicil to sue here, for their recovery, and not the ancillary administrator appointed in Tennessee: that he would have no right to recover or control any assets except what was found within the local jurisdiction of the authority under which he derived his power to act.

Whatever may be the construction proper to be put upon our statute, as to the rights of ancillary administrators, appointed in other States, to sue as such in our courts generally, the particular question presented by the argument of the counsel, does not legitimately arise upon the demurrer to the plea in question.

There are two counts in the declaration: The first, in legal effect, charges the defendant with taking the slaves from, the plaintiff, as administrator of John' Clark, deceased, and with unlawfully detaining them from liim. The second alleges, a bailment of the slaves by the plaintiff', as such administrator, to the defendant, and an unlawful detention of them by her, after demand, &c.

Though other pleas filed in the cause put the material allegations of the declaration in issue, yet the ¡olea demurred to, and which is to stand, as we have above remarked, upon its own allegations, when met by demurrer, is purely a plea in confession and avoidance. It does not deny the allegations of the declaration ; but, in legal contemplation, confesses them, and seeks to avoid them by new affirmative matter.

If it be true that the defendant took the slaves from the plaintiff, as such administrator, or received them from him, or any one else acting on his behalf, and unlawfully detains them from him after demand — if he had a legal right to the possession of them, by virtue of bis administration in Tennessee, and the slaves have been brought into Arkansas in violation of that right, he certainly would have a right to follow them up; and, hy virtue of our statute, sue for and recover them in our courts.

If the plea had alleged, in addition to the averments which it makes, that the slaves were in Arkansas when John Clark died, and that they never were in the possession, or under the rightful control of the plaintiff, by virtue of bis ancillary administration in Tennessee — that they did not constitute part of the assets, within the jurisdiction which granted to him his letters — or, perhaps, if such facts were proven upon the trial, under the issues to the declaration, then the question would properly arise, -whether he could maintain the action upon any title which his intestate had to them, or whether the executor or administrator of the domicil, should not bring the action for them here. But, on this interesting question, we do not consider it ju’oper to express any opinion now, nor do we mean to be understood as deciding, in advance, the particular mode in which such questions should he presented hy the pleadings or evidence; it is sufficient for us to decide now, upon tbe validity of the plea, and we have already indicated that, in its present form, it is no bar to the action.

The judgment is reversed, and the cause remanded, with leave to the parties to amend the pleadings, and that the cause progress, according to law, and not inconsistent with this opinion.


source: Caselaw Access Project

author: Mr. Justice Soott

license: Public Domain

text:
    Hemphill vs. Miller.
    Where depositions taken under a commission in a chancery cause have been filed and published several years, without objection, to allow exceptions after such a lapse of time, and such gross laches, upon the ground that “the witnesses were not properly sworn, nor the depositions certified according to law,” could not fail greatly to surprise the opposite party, and would be gross unfairness.
    It is error to suppress depositions, upon a motion to suppress them, because the evidence was incompetent and irrelevant, and inapplicable to the issues, whero a portion of them is relevant and applicable to the issue, and the motion is general, without discriminating between such of the depositions as are, and such as are not relevant.
    It is clear, that where exceptions to a part of the answer are filed and sustained, all of the answer not affected by such exceptions, is left standing in the cause.
    Where a vendor of real estate remains in possession under a subsequent contract to make certain improvements, such subsequent contract is a distinct and independent agreement, and is binding upon the parties.
    A party sells an improvement upon the public land, and remains in possession under a parol agreement to make certain improvements, for which, together witlpvthe price of the land, he is to be paid at a certain day; the vendee fails to comply with his part of the contract at the time stipulated: afterwards the vendor sells to a third person at an advanced price: Held, That it would be improper to decree a specific performance, not only because it had become impossible by a subsequent sale of the public lands by the United States, but because of the laches of the purchaser: and that the vendor will be considered as a trustee for the vendee for the advanced price; and that such subsequent sale be ratified.

      Appeal from Lafayette Girev/it Court in Gha/ncery.

    Hon SiieltoN "WatsoN, Circuit Judge.
    Pure, & Cummins, for appellant.
    Tlie depositions could not have been suppressed on account of the first ground stated in the motion to suppress. They w ere taken in 18:19. are marked filed 3d March, 1842, on which day the record show-they were opened and published, and the cause was that day h- ard upon them, the complainant having leave to presenl excepíio s to them in a written argument, which ho never did. i; vas too late, nine years and seven month* tiftnnwrdx, to raí- a question as to whether the witnesses wore properly sv- <>rn. and the depositions properly certified.
    This is a bill for specific- performance of .> ;..•«■»! contract. We will not argue, that such being the ca.-e ¡nay he shown to have been varied, .modified, .iban'!, nod, or •-'..rinded, by parol. Admitting the premises, nobody will di-quo-- i-i conclusion.
    For, even as to •■«-«£// .i-.oiitundv, the m! rcl down by the court, when the case was bore hUmv, 'tn ;m --¡e only in cases at common law. iíayr vs. ÍÍ aghorne, i /-.-'W. 428/ Buy da/m vs. Jones, 10 Wend. 180; Jñirime// r*. lUn-'u-', 11 Wend. 30/ and De/aerow v*. Burl,ley., 13 ”1, cm- '■ ,md relied on by
    the court, were cases at common law. And. were Preston vs. Ghrist-ma-v, 2 Wits. 80, BlalPs mi! Go. ¡3, ilde?i vs. Blague, Oro. Jete-. 99/ and S-iimr v*. ¡'’ivnkh-yn, /,n<V' 108/ opposed to which (meliore ration/-, we think}, arc- _!/im e . PerTcins, 9 Pick. 298/ Hat,cliff vs. Peíaocsion,, I .'A, more vs. Rarsen,
      14 J. Li. 330/ LeFevre vs. LeFevre, 4 Serg. <& B. 241/ Decw-born vs. Gross, 7 Gowen 48/ Lleming vs. Gilbert, 3 J. R. 531.
    It does not necessarily follow, because a contract is valid, and equity would not rescind it or relieve against it, that therefore it will decree it to be specifically performed. Sometimes damages may be recoverable at law for a breach of a contract, of which equity would yet not decree specific performance; and sometimes damages may not be recoverable at law, and yet relief would be granted in equity. 2 Story Eg., see. 741/ Weale vs. West Mid-dlesex Water Works’ Company , 1 Jae. c& Walk. 370. The interference of courts of equity in this way, is discretionary. They will not so interfere, except where it would be strictly equitable to make decree for specific performance. If the parties have so dealt with each other, in relation to the subject matter of a contract, that the object of one party is defeated, while the other is at liberty to do as he pleases, in relation to that very object, equity will not grant relief, but will leave the parties to their remedy at law. 2 Story Eg., sees. 742, 750.
    It will not decree specific performance, where, from a change of circumstances or otherwise, it would be unconscientious to enforce it. Ld., see. 751.
    It requires a much less strength of case on the part of the defendant, to resist a bill to perform a contract, than it does on the part of the plaintiff to maintain it. The agreement must be CERTAIN, fair, and just, in all its parts. Ld., see. 769. The party applying for performance must show that he has been in no default, and that he has taken all proper steps towards performing on his part. Ld., see. 771.
    If the court holds that the contract was not expressly waived or abandoned, still we contend that the unexplained neglect and delay of Miller, will avoid his claim for specific performance: that, if the court does not so think, and holds that Hemphill had no right to sell, still the decree is erroneous, because it denies any allowance for improvements, and because the court below suppressed the depositions proving these improvements and their value.

      And we submit, witli great confidence, that so much of the depositions as proved the'parol agreement, made the day after the purchase, was admissible, because this is a suit to enforce a parol agreement, or, at least, an agreement resting partly in writing and partly in parol: and that so much as proved a subsequent waiver and abandonment by Miller — so much as proves the message he sent to Hemphill, was admissible, because the whole contract might well be so abandoned; and, even if not, yet after such acts on his part, if gross neglect or delay would put an end to his right to specific performance, a fortiori, an express refusal to comply with his contract would do so. Neglect and delay do not, strictly speaking, destroy the sealed or written contract in any case: but leaving it to stand, it forms a breastwork against it, by making it inequitable for the party to claim to enforce it. The court denies specific performance of many agreements which it would not, on a bill for the purpose, rescind; but leave the parties, each to his remedy, if he has any, at law.
    On this ground, the testimony was clearly admissible, and its admission is perfectly consistent with the former decision of the court. It would be singular, indeed, if it were not admissible, in a case where, by proceeding for compensation in the room of specific performance, the plaintiff claims what is due to him, ex ceguo et bono. It would be indeed strange, if the defendant could not show that it is a fraud in the plaintiff to claim damages or compensation, in consequence of an act which he authorized to be done, and, therefore, is absolutely estopped to complain of.
    Waticins & CuRRAN, for appellee.
    Hemphill admits the original agreement with Miller, and his subsequent sale to Carson, as charged in the bill; but, in his answer, he sets up a parol agreement in avoidance: and when the matter came before this court (4 Eng. Rep. 488) on exceptions to the answer, it was held, that the matter could not be set up, and the exceptions to the answer were sustained. This decision, whether right or wrong, is the law of this case; and settles and concludes every question now presented.

      No new question is presented by this record. The only error that can possibly be assigned in tliis appeal, is as to tbe depositions. As to this assignment, we submit: . 1st. That a party will not be allowed to prove what he cannot plead — if the answer was exceptionable, certainly the depositions cannot be admitted. 2d. The depositions were irregular and informal, and were, for that reason alone, properly suppressed.
    As to the error relied upon, that Hemphill was not allowed anything for improvements alleged to have been made by him between the time of the sale to Miller and the sale to Carson, we submit: 1st. That, by examination of the previous decision of this court, it will be seen that the statement about the improvements, was coupled with, and constituted part of the parol agreement which was reached by the exceptions to the answer. 2d. That even if not reached by the exception, it was matter in avoidance; the proof of which devolved upon Hemphill, and the depositions being excluded, there was no proof. And 3d. That lie could not, in any event, be entitled to a deduction for improvements.
    TkapNAll, for the appellee.
    There was no notice of the time and place of the taking of the depositions, nor any appearance by Miller or his' counsel; nor were the witnesses sworn to testify the whole truth; nor were the depositions reduced to writing in the presence of the officer before whom they were taken, nor were they certified according to law. Digest, eh. 55, sees. 6, 7, 13, 15.
    The depositions relate to the subsequent verbal agreement between the parties, which since the decision of this case in 4 Eng. 488, can no longer be considered a part of the defence.
    Miller had full power to ratify the sale to Carson by Hemp-hill, and hold Hemphill as trustee, bound to him for the purchase money. 2 Story's A^.^506, see. 1262/ 2 J. G. B. 441/ 1 J. O. B. 581.
    So much of Hemphill’s answer being struck out as related to the subsequent parol agreement, by virtue of which Hemphill made the improvements, if any, and claims an allowance for the same, there was nothing upon which the court could have grounded the decree allowing for the value of improvements.
   Mr. Justice Soott

delivered the opinion of the Court.

This cause was heard on appeal in this court, during the January term, 1849, (4 Eng. R.) and was sent back to the court below for further proceedings. After its return to that court. Miller moved to suppress the depositions of Hemphill, which had been on lile and published for nearly ten years before, upon the ground: 1st. That the witnesses were not properly sworn, nor the depositions certified as required by law. 2d. That they were incompetent and irrelevant, and not applicable to the issues. This motion was granted and the depositions ruled out, to which Hemphill took a bill of exceptions. The cause was then heard on the bill and exhibits, answer and replication, and the court being of opinion that it was impossible for Miller to have a specific performance of the agreement for which he proceeded, and that Hemphill ought to be charged as trustee for Miller, and compelled to account for the amount of the sale lo Carson with interest, less the amount of the writing obligatory executed by Miller to Hemphill, with interest from the time it fell due until the 1st of April, 1836, decreed accordingly for the sum of $3.217, which, upon computation, was found to be balance of principal and interest up to the date of the decree.

Hemphill appealed to this court, and, afterwards, upon application here, the execution of the decree was, upon the usual terms, suspended by the order of this court, until his appeal could he heard. The complainant below prayed for specific performance of a contract set out in his bill; and, in the alternative, that he might be decreed, the price for which the land in question was sold by'Hemphill to Carson, and that Hemphill should account for the same, and for rent for the year 1835.

The case made by the bill, and accompanying exhibits, was that on tlie 6tb of December, 1833, “or thereabouts,” Miller purchased of Hemphill “a certain improvement, or parcel of land,” situated in the county of Lafayette, on the public unsurveyed lands of the United States, of which Hemphill was the owner, for the sum of $500, to be paid the 1st day of January, 1835, for which sum Miller executed to Hemphill his sealed note, and Hemphill executed .to Miller a deed for “said improvement or land,” with covenants of warranty against all persons except Mexico and the United States. “That, at the time of the sale, and conveyance aforesaid, it was father verbally agreed between the parties,” that Hemphill should enter into, and upon the land and improvement so sold and conveyed, and take, and hold possession thereof, under Miller, and raise a crop thereon in the year 1834, and “restore” the possession thereof to Miller, in the month of November, 1834, or at any time thereafter, when Miller (who then lived in the State of North Carolina,) should come and demand possession. That, atthe time Miller expected and intended to have removed to said land and improvement by November, 1834, but that by “unavoidable delay, he was hindered and prevented from doing so.” That afterwards, (but when it is not stated) when Miller had disposed of his property in North Carolina, and was on his way to Arkansas, with a view to take possession of, and settle upon the improvement and land in question, he heard, for the first time, in the State of Tennessee, (where in consequence he remained for some time afterwards) that Hemphill had disposed of said improvement and land, and would refuse to restore possession to Miller, in accordance with the verbal agreement above alleged. That, on or about the 30th of April, 1835, Hemp-hill sold and conveyed “the said vmprovement and land” in question, “with some other improvements of very small value,” to Samuel P. Carson, for $3.750, $1000 of which was paid down, and the residue to be paid on the 1st of January, 1836. That Carson knew of Miller’s previous purchase, and of the conveyance to him, and acted in confederacy with Hemphill to defraud Miller. That on the 16th of November, 1835, Miller, at Lafayette county, tendered to Hemphill the amount of the sealed note, and all interest that had accrued upon it, and demanded possession of Hemphill, who refused to take the money, and to restore the possession, unless, in addition to the amount of the"sealed note, Miller would also pay the further sum of $3,750. A few days af-terwards, Miller filed his bill.

Hemphill, in his answer, admitted the sale and the execution of the sealed note, and the deed for the improvement and land, as stated in the bill, but in responding to the contemporaneous verbal agreement alleged in the bill, denies that he was to enter into and upon the improvement, and hold possession under the complainant, and to restore the possession in the month of November, 1834, or at any other time thereafter, when he should demand it, as alleged in the bill, and charges the truth to be, that lie was “to have and hold the possession, use and cultivation,” from the time of contract, “until the 1st day of November, 1834, for his own use and benefit,” and that in addition to these terms of that verbal agreement, he was, in the year 1834, to crib for Miller, on the improvement, 1000 bushels of corn, which Miller was to receive on the 1st day of November, 1834, (as well as the possession of the improvement on that day) and pay him fifty cents a bushel for the same. That he did crib the corn, and was ready and willing to deliver it, as well as the possession, of the improvement, at the time agreed upon, but the complainant failed to come to receive them at that time, or any time before. lie denies all knowledge of the matters alleged to have transpired in North Carolina and Tennessee, and states his unbelief of them all. He denies that Miller, either on the 16th day of November, 1835, or at any other time, ever tendered him any sum of money for any purpose whatever, or ever demanded of him the possession of the improvement in question, or that he over refused to give Miller possession unless he would, in addition to the amount of the sealed note, also pay the further sum of $3,750, as is alleged in the bill. But he admits that about the 15th November, 1835, he did say to Miller, that there was no other way in which the matters in difference between them in the premises could be settled, except tbat Miller should surrender the deed aforesaid, and receive his sealed note in exchange for it, “ agreeable to the contract,” which Hemphill had before stated in his answer, and of which we will presently speak; and then, that Miller might, by arrangement with Carson, make the same payment to Hemphill, as Carson had, and was to make, and thus be placed in his stead.

He denies the sale to Carson, upon the terms stated in the bill, but admits, that about the 30th of April, 1835, he sold to him the improvement in question, together with a certain other improvement, known as “Hemphill’s Bend,” for the aggregate sum of $3,100, of which, the price of the improvement in question was $2,200, and not more, and that upon the execution of the deed to Carson for both improvements, he paid the respondent $1000, and executed to him his writing obligatory for $2,150, payable in the month of April, 1836: $50 of which sum was for five cows and calves, and that he gave Carson possession the 1st January, 1836. The residue of the answer, needful to be noticed, is as follows, to wit: “But it is true, and so this respondent charges the truth to be, that some time after the sale of said improvement to said complainant as aforesaid, to wit: on or about the Ith'day of December, in the year 1833, it was verbally agreed between this respondent and said complainant, that said complainant should pay this respondent a reasonable compensation for all necessary improvements which this respondeut might think proper to make on said improvement, by building necessary houses and cribs, and opening and enclosing land, and fitting the same for cultivation, and repairing and clearing the well on said premises; that said complainant would cause to be delivered to this respondent, in time to make a crop in the year 1834-, a negro man slave, not under twenty, nor over twenty-three years of age, not having a trade, to be of the value of six hundred dollars, which said negro man slave, this respondent was to receive in payment of the aforesaid one thous- and bushels of corn, and the overplus to be applied to the payment of such improvements as this respondent should have made upon said improvement.

And it was then and there further verbally agreed between this respondent and said complainant, that the said complainant should leave the deed executed and delivered by this respondent to the complainant as aforesaid, with Bichard Pryor, of the county of Hempstead, in the Territory of Arkansas, and that in case said complainant did not come into the county of Lafayette aforesaid, on or before the said first day of November, 1834, and receive the possession of said improvement from this respondent, and the 1000 bushels of .corn to be cribbed by this respondent as aforesaid, and pay this respondent the value of all necessary improvements as aforesaid, over and above the value of the said negro man slave, to be delivered to this respondent by said complainant as aforesaid, then the said deed for said improvement, made and delivered by this respondent to said complainant as aforesaid, was to be delivered up to this respondent by the said Bichard Pryor, and become null and void; and that this respondent should deliver up the note, executed and delivered to this respondent by said complainant as aforesaid, and the same to be null and void, and that all contracts made and entered into between this respondent and said complainant, should be canceled and dissolved, as well verbal as written. And this respondent avers,” &c.; (the answer then proceeding to negative, in detail, the several matters undertaken on the part of Miller, and affirming his own readiness and willingness to comply on his part, and Miller’s failure.)

Before replication, the complainant filed exceptions to the answer, in the following terms, to wit:

“And the said complainant, as to so much of the answer of the said defendant, Andrew Hemphill, as sets forth that it was verbally agreed between the defendant Hemphill, and the complainant, that said complainant should leave the deed, executed and delivered by said defendant Hemphill, with Bichard Pryor, of the county of Hempstead, and that in case said complainant did not come into the county of Lafayette aforesaid, on or before the 1st day of November, 1834, and receive possession of said improvement from said defendant Hemphill, and comply with the conditions of said supposed verbal agreement, as in the answer of said Hemphill is alleged, then, that the said deed for said improvement, made and delivered by said Hemphill to said complainant as aforesaid, was to be delivered up to said Hemphill by the said Kichard Pryor, and become null and void, and that said Hemp-hill should surrender up the note executed and delivered by said complainant to said Hemphill, to said complainant, and that the same be null and void, and that all contracts entered into between said Hemphill and said complainant, should be canceled and dissolved, as well verbal as written. This defendant execpts: 1st. Because the same is not responsive to the allegations of the bill. 2d. Because when said deed was delivered by said defendant to complainant, it became, and was absolutely, the deed of said defendant, and no subsequent verbal agreement could make it an escrow. 3d. Because a verbal agreement cannot vary a deed: and 4th. Because the said supposed parol agreement alleged in said answer, appears, upon its face, to be a naked agreement, made without any consideration. The complainant, therefore, prays that the said exception be sustained, and that he be decreed his reasonable costs.

These exceptions were overruled, and afterwards, replication was filed to the answer, and the case was set for hearing. Af-terwards it was heard, on the 30th of March, 1842, submitted and taken under advisement, as it was at the next three succeeding terms. On the 10th of October, 1845, the bill was dismissed for want of prosecution, and a decree rendered. On the 10th of April, 1846, on motion sustained by affidavits, the case was re-instated, an,d on the 30th September, 1846, an appeal was granted to the complainant, on petition, by one of the judges of the Supreme Court; and at the January term, 1849, the case was, as already stated, reversed here and remanded. In the mean time, Miller, by his counsel, had taken other steps in the court below, by an original bill, in tbe nature of a bill of review, supplemental bill, and bill to execute a decree, which it is unnecessary to notice, as they seem to cut no figure in the case we have to decide.

The first question to be considered is, whether or not the court below erred in granting the motion to suppress the depositions. They were all taken in the year 1839; Hall’s and White’s, under an order of court made in March, 1836, and Clark’s, under an order of court made in March, 1839; and having been filed, were, by leave of court, opened and published, on the 30th of March, 1842, and the cause was that day heard upon them; when, by express leave of the court, the complainant was allowed to present exceptions to them in a written argument, and to have the same benefit thereof at the succeeding term, “as if the said exceptions were now formally made out.” It does not appear that any exceptions were over presented, although the cause remained in that court, some four years afterwards, until those we are now considering, which were filed the 4th of November, 1851. To allow exceptions after such a lapse of time, and such gross laches, upon the first ground taken, that is to say, “because the witnesses were not properly sworn, nor said depositions certified according to law,” could not fail greatly to surprise the opposite party, whose witnesses might, in the mean time, have departed this life, or to parts unknown, to say nothing of the gross unfairness of such a course in lulling the opposite party into security by such long seeming acquiescence.

In order to determine the validity of the other objection taken, to wit: That the evidence was incompetent and irrelevant, and inapplicable to the issues, it will be necessary to look into the depositions and into the state of the pleadings.

William Qla/rlc states, that he came from and went back to Tennessee in company with Miller, and was present on the 6th of December, 1833, when the contract between Miller and Hemp-hill was made. Hemphill sold for $500, payable the 1st of January, 1835, and Miller was to pay him for all improvements he should make ou tbe place from that time, until he (Miller), should move to the country, which, he said, would be in January, 1835. Miller engaged 1000 bushels of corn of Hemphill, and was to let him have a negro man. The price of the corn he did not recollect, and the price of the negro he did not know. ITe was called on by both to witness, that if Miller did not move to the country by January, 1835, and pay Hemphill $500 for the place, and also for all labor Hemphill should do on the premises, such as clearing, fencing, breaking up land, building negro houses, corn-cribs, stables, &c., from the date of the contract until he should ■ move to the country, the contract, both written and verbal, should be null and void, and the deed and note to be given up. In February, 1835, witness left the State of Tennessee for Arkansas, and Miller authorized him to call on Hemphill, and say to him, that he might consider the contract at an end, and that he would have sent the bill of sale, and gotten up his note, but that he did not have the former with him, and to tell Hemphill that he would enclose it to some friend in Arkansas to make the exchange. That after the suit was brought, he had a conversation with Miller, in which he said, that he thought he had the advantage of Hemphill, and if he could make five or six hundred dollars out of him, lie thought it was well enough; and said, also, that when he demanded the improvement of Hemphill, he agreed to let him have it, provided he would pay him the five hundred dollars, and for all the labor he had done on the premises, in accordance with the contract, but he said he would not take the place because Hemphill had done labor to the value of $1500 or $2000 on it.

Durant H. White stated, that he was present on the 6th day of December, 1833, when the trade between Miller and Hemp-hill, in regard to the improvement, was made. That Miller was to pay Hemphill $500 within one year, or thereabouts, from that time, for the improvement, and also to pay him for all improvements he should make on the place, such as clearing, fencing, breaking up ground, and building houses, such as kitchens, stables, corn-cribs, negro houses, &c., and for the enclosing and putting land in cultivation, be was to pay Hemphill at the rate of $10 per acre, for all that Hemphill thought proper to clear and fence for his own use. That as to the buildings, there was no agreement as to the price, or as to the number to be built, only that he was to pay what they were worth. That Hemphill built ten houses, sunk a well on the premises, and enclosed and put in cultivation 120 or125 acres. All the labor thus done, the witness, estimated to be worth $1500 or $1000. Miller also engaged 1000 bushels of corn of Hemphill, to be delivered on the premises in the following November, at the rate of fifty cents per bushel, and was to let him have a negro man noty>ver 25 years of age, for which Hemphill was to pay him $600 in the way of labor dono on the premises. That the next day a conditional contract.about the premises sold by Hemphill to Miller, and the work to be done on the same, was made, and the witness was called on by both parties to witness, that if Miller failed to pay Ilomphill for all his labor done on the premises, and for 1000 bushels of corn in the month of November, that “Hemphill mout know that he had declined moving to the country; and, in that event, all contracts, both written and verbal, should be void, and the deed and the note to be given up.”

Jesse H. Hall stated, that there were between 120 and 140 acres of land cleared, fenced, and put in cultivation, on the place for which this suit was brought, for which $1500 or $1600 would be a reasonable value for the labor bestowed.

With regard to the state of the pleadings, it maybe assumed as entirely clear, that all of the answer is left standing’that was not cut out by the ruling of this court, when this cause was here before, to the effect that the complainant’s exceptions to the answer should be allowed. Those exceptions, together with all those portions of the answer, which, upon any hypothesis, there would be any color whatever to suppose were affected by them, we have copied above, in Twee verba. The first part of the answer so copied, sets out under a vide Meet, a verbal agreement, that Miller should pay Hemphill a reasonable compensation for specified improvements to be made, and tliat Miller should deliver the negro to pay for the 1000 bushels of corn, and the residue of his price to go in part payment of the improvements to be made. And the second part beginning with, “and it was then and there further verbally agreed, &c,” sets out that the deed should bo left in the hands of Pryor and in case Miller did not come, on or before the lst day of November, 1834, and receive the place, and the 1000 bushels of corn, and pay die value of all additional improvements to be made over and above so much of the value of the negro man, as was to go to pay for the corn, then Pryor to deliver up the deed to Hemp-hill, and Hemphill to deliver up the note, and all contracts, both written and verbal, between Miller and Hemphill, to be dissolved.

The exceptions are in terms to so much of the answer, &c., as sets forth that it was verbally agreed, &c., that the deed should be left with Pryor, &c., and in case Miller did not come “on or before the 1st November, 1834, and receive possession of said improvement, and comply,” &c., that the deed should be delivered up, and also the note, and all contracts, verbal and written, between Miller and Hemphill, to be canceled and dissolved.

The substance of the whole then is, that the first part of the above copied answer, set out a subsequent verbal agreement in terms. The second part set up an additional agreement, that if these stipulations (repeating them) were not complied with by Miller, within a specified time, that not only those, but all previous contracts, both verbal and written, between the parties, were to become thereby dissolved. The exceptions, it is plain, were-to the second part only, submitting that the legal effect of the subsequent venial agreement, was not'to dissolve the prior agreements between the parties made under seal; that the law would not allow such an agreement to have such an effect. In connection with the exceptions to the answer, this was the only question argued and submitted to this court, when this case was here before, and that was the only question considered, and decided in reference to the exceptions. This court in the opinion delivered, after announcing, that tbe remaining question related to tbe complainant’s exceptions to tbe defendant’s answer; and, in brief and general terms, stating tbe substance of tbe two verbal agreements, and wbat tbe complainant insisted upon as to tbe second verbaL agreement, which was, “that it could not have any legal effect to defeat tbe original contract, executed by tbe deed of conveyance by tbe one party, and tbe execution of promissory note payable tbe 1st January, 1835, by tbe other party,” proceeds to bold that position to be well taken, for the several reasons there distinctly given: and then remarking that, “even if this was not the true groimd upon which to place this case, and it were to be placed on tbe ground of a sealed executory contract,” proceeds to show that tbe legal result would be the same, and that it could not in that view, work a dAseh/wge of tbe sealed contract” and concludes that “in any legal view then of tbe case, it is clear that tbe court below erred in overruling tbe complainant’s exceptions to tbe defendant’s answer.”

The exceptions then which were thus sustained, going only to so much of tbe answer as set up, in substance, that by tbe subsequent agreement, tbe deed was to be deposited with Pryor, &c., and if Miller did not comply with all tbe several stipulations between tbe parties, tbe deed and note were to be delivered up, and all contracts were to be dissolved and canceled, necessarily left stcmcbmg in tbe answer, all tbe first part, above copied, in which it is set up that Miller was to pay a reasonable compensation for tbe specified improvements to be made ; and as much of tbe depositions suppressed tended directly to sustain this pa/rt of tbe answer; and was, therefore, relevant and applicable to tbe issues, and tbe motion to suppress was general, and did not discriminate between such parts [of tbe depositions as uwere relevant and applicable to tbe issues, and such as were not, tbe motion ought to have been refused instead of being allowed, as it was by tbe court below.

Por this error, tbe decree must be reversed. And upon looking into tbe whole case as now presented, with a view of proceeding to make such decree, under tbe provisions of tbe statute, as tbe Circuit Court ought to hare made, to be certified to that court, and to be entered up and executed as the decree of that court, we are of opinion, that specific performance ought not to be decreed, as well because the sale of the public lands by the government, upon which the improvement in question was situated, since the commencement of this suit, has rendered it impossible; as because the complainant, not having shown himself prompt and ready by accounting in any reasonable manner for his apparent laches, it does not appear proper.

But, under the circumstances of the case, he may be allowed to ratify the sale to Carson, and hold Hemphill to account, as a trustee, for the purchase money received by him. And in taking this account, inasmuch as Miller never paid the $500, due the 1st January, 1835, interest should be computed upon that sum from that day until the 30th of April, 1835, and the aggregate deducted from the sum of $1000, that day paid Hemphill by Carson. Hpon this balance, interest should be computed against Hemphill for twelve months, and added to the balance, and to that aggregate, the sum of twelve hundred dollars should be added, being the residue of the $2,200, which Hemphill admits in his answer to have received in April, 1836, as the price of the improvement in controversy. Then from the last aggregate, the sum of sixteen hundred dollars must be deducted as a reasonable compensation for the improvements Hemphill had made after the sale to Miller, and before that to Carson; the use of the premises during that time, being regarded as equivalent to interest on the $1600. Then upon the balance found, interest to be computed up to this day, and a decree rendered for Miller against Hemphill for the aggregate, with costs.


author: Mr. Justice "WalKEr

text:
    Robards vs. Cooper.
    Upon a bill to foreclose a mortgage given to secure tlie payment of a promissory note for the purchase of real estate, sold and conveyed by,deed of warranty, it is no de-fence .to set up, that at the time of the sale there was an incumbrance on the real estate, and that the vendor promised to remove the incumbrance before the note became due, and has failed to do so — such promise forming no part of the contract.

      Appeal from the Phillips Girowit Oov/rt im, Oha/ncery.

    Hon. Charles W. Adams, Circuit Judge.
    Fowler, for appellant.
    To a cross-bill, tiled by a defendant against the complain ant, who himself has brought the defendant into the forum, a demurrer for want of equity in such cross-bill, should never be permitted or sustained. Mitf. Eq. PI., p. 64, -65/ 1 lloffm. Gh. Pr. 356; Fl-acI vs. Perry, 1 Mon. Rep. 258.
    The matter set up by the cross-bill — the incumbrance on the land, and the agreement, to discharge it, was a part of the same transaction and proper for the interference of the chancellor.
    S. WilliaMS, for appellee.
    The only questions to be determined to sustain or reverse the decision below, were, 1st. "Was the answer sufficient? That, it was not, see 2 Daml. Oh. PI. di Pr. 339, note; 4 J. Oh. R. 4-37 / Story’’s Ey. PL 863/ and secondly, whether the court correctly sustained the demurrer to cross-bill. As to parol evidence being inadmissible to vary or contradict written evidence, see Jordan vs. E-nno, 13 Ark. Rep. 594.
    The demurrer was rightly sustained, because the plaintiff on cross bill had a complete remedy at law in case of disturbance from Bingo’s mortgage, byresorting to the covenants of his deed.

      It would certainly be necessary to aver in tbe cross-bill tbe insolvency of Cooper. Ra/wle on Gov. for. Title, 518; 2 J. O. R. 520; 2 Edwa/rd?s Oh. R. 37.
   Mr. Justice "WalKEr

delivered tbe opinion of tbe Court.

On tbe 12tb of February, 1853, Eobards executed to Cooper bis deed of mortgage for certain negro slaves, to secure tbe payment of a promissory note of that date, executed by Eobards to Cooper, for fifteen hundred and fifty dollars, payable on tbe 1st day of January next-thereafter. After tbe note fell due, Cooper filed bis bill in chancery in tbe Phillips Circuit Court, to foreclose tbe mortgage and subject tbe slaves to sale. Eobards in bis answer admitted tbe execution of tbe note and mortgage, and that part of tbe note still remained unpaid; but set up by way of cross-bill, that tbe note avas given in consideration of a tract of land sold by Cooper to Eobards, and conveyed to .him by deed, with covenants of Avarranty of title, &c. That at tbe time of tbe purchase of tbe land, and the execution of tbe deed, tbe land Avas incumbered by á deed of .mortgage executed by Cooper to "William II. Eingo; that be (Eobards) was apprised of tbe existence of the mortgage to Eingó, at • the timo of bis purchase, and that Cooper promised that be Avould satisfy and discharge tbe same, and thereby remove said incumbrance before tbe note fell due, but that in fact said incumbrance, has not been removed, and that be is apprehensive that -the land may be sold to pay tbe same. Tbe complainant.is made defendant to tbe cross - bill, and called upon to answer with a prayer, that complainant be enjoined from proceeding to collect said mortgage debt, until such incumbrance is removed.

Tbe complainant demurred to tbe cross-bill. Tbe ground of tbe demurrer Avas, in effect, that tbe affirmative matter set forth in defendant’s answer, Avas insufficient to entitle him to tbe relief sought. Tbe court below sustained tbe demurrer; tbe defendant declined all further defence, and a final decree was rendered for complainant, from which tbe defendant has appealed.

There can be no question, but that the demurrer to the cross-bill was properly sustained. The verbal promise of Cooper, that he would remove the incumbrance before the note became due, added nothing to, and formed no part of, the contract. If it had been the intention of Bobards to withhold the purchase money until the incumbrance was removed, he should have so qualified his written promise to pay. The mere fact that there was an in-cumbrance upon the land at the time of his purchase, whether known or not, will neither entitle him to a rescission of the contract, nor to arrest the recovery of the note, executed for the payment of the purchase money, until the incumbrance is removed. Having entered into possession of the land purchased, the defendant must rely upon his covenants of warranty of title and quiet possession. Such is the general rule upon the subject, sustained by numerous decisions, collected by Mr. Bawle, in his work on Oom-nazvts, page 640 to 657.

There is, in this case, no allegation of fraud, of eviction, or even that suit has been brought to recover possession, nor any other circumstances alleged, upon which to base an exception to the general rule. Bingo, who is alleged to hold the prior lien, has asserted no right to it, and may never find it necessary to do so. Cooper’s ability to pay the sum due to Bingo, is not questioned, nor is there any circumstance developed by the pleadings to entitle the defendant to the relief sought in his cross - bill. Let the decree be affirmed.

Mr. Chief Justice ENGlish not sitting in this case.


author: Mr. Justice WalKeb

text:
    Chipman vs. Fambro.
    A transcript of the judgment rendered against a security, is evidence in an action by the security against his principal to recover hack the money paid by the security, although the principal was not a party to the suit, nor notified of the suit against the security. Snider vs. Greathouse, 15 Arle. Bep.

    A sheriff has no authority to receive payment of a judgment, after the return day of an execution which was not levied.
    The receipt of a sheriff, given without process in his hands, for the amount of a judgment, and the receipt of the plaintiff to the sheriff for such amount, are no part of the record of tho cause; and though copied into the transcript, they are not record evidence of payment, in an action by the security against the principal for money paid.

      Appeal from, the Circuit Cowrt of TJwion County.

    Hon. SheltoN WatsoN, Circuit Judge.
    CarletoN, for tbe appellant.
    Tbe record from Georgia, unless tbe defendant bad been party thereto, or been notified thereof, by tbe plaintiff, was not legal evidence against him. Duchess Kingston?s case, 11 St. Tr. 261; 20 Sow. St. Tr. 538, 1 Phil. Ev. 326, 3 Tb. (Cow. c& HUVs notes,) 803.
    A record is not evidence to prove tbe facts upon which a recovery was bad, as between persons not parties to such recovery. Lovel vs. Cunold, 2 Mum,. Bep. 167; Hollingsworth vs. Barbowr, 4 Pel. Bep. 466; 4 Hawh. Bep. 34; 2 Band. 313; 3 Yeate’s 128.
    Tbe transcript of tbe judgment was not evidence of a breach of tbe sheriff’s bond, nor of tbe amount of damages, nor that tbe plaintiff bad paid any part of tbe judgment.

      LyoN, for appellee.
    Tbe transcript was evidence to prove that judgment was obtained in the Supreme Court of Georgia against appellee et al., as security on appellant’s sheriff’s bond, and the amount of said judgment, cost, &c., and that the same, or a part thereof, had been paid by appellee, and that he was legally bound to pay the same. 1 Phill. on Em. 332/ 3 ib. 821, n, 583; 12- Mass. B. 166/ 7 J. B. 168/ 17 ib. 142/ 9 Oowen 154/ 10 Ala. Bep. 849.
    The transcript was prima facie evidence on all points established by it. Tram vs. Gould, 5 Pide. Bep. 380/ 5 Bmn. Bep. 184/ 2 Band. Bep. 313/ 1 Gilman’s Bep. 235/ 2 Leigh’s Bep. 393/ 1 Wash. Bep. 31.
   Mr. Justice WalKeb

delivered the opinion of the Court.

This was an action of indebitatus asswmpsit, brought by Fambro against Chipman, to recover money alleged to have been .paid by Fambro upon a judgment rendered against him in the State of Georgia, as the security of Chipman upon a sheriff’s bond. The general issue was pleaded; and, upon the trial of the case, the plaintiff offered a transcript of the judgment as evidence, to sustain the issue on his part. To the admission of which, the defendant objected, upon the ground, that he was not a party to the record, nor had he any notice whatever of the suit upon his official bond; and, also, because the receipts copied into the record, 'were properly no part thereof, and were inadmissible, as such. But the Circuit Court overruled the objection, and permitted the entire record to be read as evidence to the jury, and this, with'evidence to identify the defendant as the same person, upon whose official bond the judgment had been rendered, was the whole of the evidence given to the jury;.and, thereupon, at the instance of the plaintiff, and against the objection of the defendant, the court instructed .the jury that the record evidence was, of itself, 'sufficient to entitle the plaintiff to a verdict, unless repelled by rebutting evidence from the defendant.. '

After a verdict for tbe plaintiff, tbe defendant moved for a new trial, which was overruled, and the case comes up,.on exceptions to the opinion of the court, in overruling the motion for a new trial. ... .

The legal sufficiency of the record as evidence, is the only question to be determined.

The first objection to it was, that the defendant was not a party to the suit, and had no notice of the same. This precise question came before us at the last term of this court; (Snider vs. Greathouse,) and, after a full investigation of authorities, it was held, that where the liability of the security was contingent, and to be ascertained by an assessment of damages, a transcript of the judgment, and proceedings against the security, with proof of payment of the money so recovered against the security, was competent evidence in a suit brought by the security against the principal, to recover the money so paid, even though the principal may not have been sued, or notified of the suit against the security: at least that it was pruna faoie evidence, sufficient to entitle the security to a judgment against his principal, for money paid, &c.

But we think the second ground of objection well taken. The receipts copied into the record, properly formed no part thereof. They were certainly not record evidence of payment. The execution issued upon the judgment, bears date, the 13th of January,. 1850, and was made returnable on the first Monday in March, next thereafter. It does not appear that this writ ever came to the hands of the sheriff whilst it was in force. It was never levied, nor is there any return or endorsement upon it, other than a receipt, purporting to be for the payment of one hundred and fifty-three dollars and seventy-five cents, dated the 24th of January, 1851, and signed “B. II. Yeulleb, sheriff.” This receipt, bears date more than ten months after the return day of the execution. The writ not having been received by the sheriff, and acted upon whilst it was in force, it conferred no authority upon the sheriff to receive the money, nor could he make any return whatever upon it. Newton vs. State Bank, 14 Ark. Rep. 1. The receipt upon the execution, thus made and copied into tbe record, is no part thereof, but is the copy, perhaps, of the receipt of the sheriff acting in his private, not his official capacity; and even if the original receipt had been produced, and its due execution proven, it would have been no evidence of payment to the plaintiff in execution, unless power to receive it had been proven, or that it had been paid over by the sheriff to the plaintiff in execution, and accepted, which would have been a ratification of the authority to receive. There was a receipt also copied into the record from the plaintiff to Yeul-ler, but it was no more record evidence than that from the defendant in execution to Yeuller.

The Circuit Court, therefore, erred in permitting these receipts, thus copied into the record, to go to the jury as record evidence of payment; and, also, in instructing the jury, that the record was, of itself, sufficient evidence to entitle the plaintiff to recover, because although the record was sufficient evidence of the liability of the security to pay, it was no evidence whatever of payment, and without this proof, the plaintiff could not recover.

Let the judgment be reversed, and the cause remanded, with instructions to grant a new trial, and for further proceedings, &c.


author: Mr. Justice "WaxKeb

text:
    Chipman vs. Simmons.

      Appeal from the Cvreivit Cou/rt of Union County.

    CaRletoN, for the appellant.
    LyoN, contra.
   Mr. Justice "WaxKeb

delivered the opinion of the Court.

This case is in all respects like that of Chipman vs. Fambro, just decided. Simmons was the other security upon the sheriff’s bond, and was sued jointly with Fambro; and, after judgment, claims to have paid half the money. The decision of the case against Farnbro, is, in all respects, decisive of this case.

Let the judgment be reversed, and the cause be remanded, with instructions to grant a new trial, and for further proceedings, &c.


author: lion. Thomas JohNSON, Special Judge,

text:
    Viser vs. Bertrand.
    Where instructions have been refused, in the words asked for, though legal and appropriate to the ease, yet the party has no cause of complaint if the court give other instructions, the same in substance.
    Whore a question arises, in an action of assumpsit for money paid, -whether the payment was on account of an agreement .to compound a divorce suit, or for the purpose of settling the rights of tlio parlies to the divorce, to property, the defendant, having proved the fact of divorce, is entitled to an instruction, that upon a divorce, legally obtained, the wife is entitled to all the property which came to her husband by the marriage.
    An authority or power coupled with an interest, or given for a valuable consideration, unless there is an express stipulation that it shall-bo revocable, cannot be revoked by the party executing it: as where the husband makes an appointment or constitution of an agent to take charge of certain property and hire it out and appropriate the proceeds to the use of his wife and daughter.
    A power of attorney, executed by a husband to an agent to receive certain property and hire it out for tho benefit of his wifo and daughter, is admissible in evidence in a ease where the question is, whether money was advanced for the wife, and paid to the husband, solely on account of his interest in such properly, or whether an agreement to compound a divorce suit constituted any part of the consideration of the payment to the husband.

      Appeal from Pulaslti Gvreuit Oowt.

    Hon. William: H. Feild, Circuit Judge.
    The facts in this case are stated in the opinion of the court, at a former term. See 14 Ar7c., p. 268. It is only deemed material to state, more fully than in the following opinion, the instrument of writing upon which the fourth instruction asked for by defendant, was based: which, purports to be a deed of trust, executed by A. F. Viser, to William Brown, reciting that by virtue of his marriage with the defendant, he was invested by law with the authority and power to control and appropriate the hire and proceeds of certain negro slaves, the separate property of his wife, the defendant, and her daughter; and he being desirous of absenting himself from his family for the purpose of pursuing his own business, and appointing some person to manage the slaves and appropriate the hires to the support of the defendant and her daughter, and proceeds as follows: “Now, therefore, in consideration of the sum of one hundred dollars, to me in hand paid, the receipt whereof I do hereby acknowledge,’I do hereby appoint and constitute the said "William Brown, senior, a trustee, to perform all the duties I ought to perform in the premises, and to hire out and appropriate the proceeds of said negroes, when hired, to the benefit of said Mary E. B. Wiser, and her- daughter, Eglantine E. Hamilton, as it appropriately belongs, and hereby investing him with all the power I possess, by virtue of my marriage for that purpose, and hereby requiring that he shall be responsible for the execution of this trust to the said Mary E. B., and to the proper guardian of the said Eglantine, at all proper times, and no other person whomsoever, and not, in anywise, responsible to me.”
    Before the lion. O. C. Soott and David Walkeb, Judges, and Hon. Thomas JohNSON, Special Judge.
    Eowlee, for the appellant.
    Assuming the instrument to be a mere power of attorney, as the legal witness supposed it to be, and as the court below must have supposed it to have admitted such evidence, still, and notwithstanding, it is well settled law, that such a jpower ccwmot T)e revolted by the principal alone, or with the renunciation of him who is to execute it.
    This power was to act and receive hire and preserve property, for the exclusive benefit of Mrs. Wiser and her daughter; and was, therefore, not revocable by Wiser — they had a vested right in its execution, which he could not take away from them. See Story on Agency, sec. 4T7, 485, 488; Wassell vs. Uea/rdon, 11
      Arle. Rep. 712/ Hunt vs. Rousma/wier, 5 Oond. Hep. 403, 404, 406/ 2 PAmermore on Agency, 308, 309/ Story on Contracts, sec. 339.
    Nor could the agent Brown renounce the agency, so as to deprive them of their vested rights. Story on Agency, see. 477/ Wassell vs. Reardon, 11 Arle. Rep. 712.
    And the deed of trust to Brown was read in evidence by Mrs. Yiser, without objection; and was proper evidence to rebut the ■case attempted to be established by Bertrand, though an utter failure, that the relvnqmshment of Yiser’s claim to the negroes was the sole consideration of the $300, and not the unlawful agreement to let a decree for the divorce pass without opposition. See McLañn vs. Ghurchill, 5 Arle. Rep. 243.
    The refusal to give Mrs. Yiser’s instructions, couched in proper language, and enumerating the true rules of law, and then giving modified and evasive instructions, were acts well calculated to, and doubtless did, mislead the jwry. And all such refusals and charges are erroneous, and entitle the aggrieved party to a new trial or reversal, as the case may be. See Samuel vs. Oravens, 10 Arle. Rep. 396/ Jones vs. Talbot, 4 Missouri Rep. 285/ Hicle-ma/n vs. Griffin, ib. 43/ JTocum vs. Polly, 1 Ben Monroe Rep. 360/ Elling vs. The United Stales Banlc, 6 Condensed Rep. 220.
    Bertrahd, contra.
   lion. Thomas JohNSON, Special Judge,

delivered the opinion of the Court.

This is the second time this case has been in this court, and we are relieved from the necessity of investigating several questions of law that were originally presented. The most serious objection urged against the first verdict and judgment, was, that the appellant being a feme covert at the time of the original promise, was not legally bound by her subsequent promises. The decision of this court, as collected from a majority of the opinions delivered, was to tlie effect, that the original promise to pay the item of three hundred dollars, was binding upon her separate property in equity, and that consequently she was legally bound by her subsequent promise based upon such consideration, in the event that the contract rested alone upon Yiser’s interest, or supposed interest, in her separate property, and was not, in any way, affected by the taint of collusion, in compounding the suit instituted by the appellant against Mr. Viser for a divorce. See 14 Ark. R. 267, at seq. "When the cause ivas remanded, and put before the jury a second time, the same evidence originally introduced, with an addition by A. ~W. Webb, was again submitted; and, under an express and positive instruction, that in case the taint of collusion entered into the consideration of the contract, for the item of three hundred dollars, the plaintiff could not recover as to that. They found the entire sum claimed in his favor, and he had judgment accordingly.

But, it is insisted, that the court erred in refusing certain instructions; and, also, in giving others against the objection of the appellant; and, also, in permitting illegal evidence to go to the jury. The objections taken to the refusal of the instructions offered, when the case was before the jury the first time, are now waived, as they were virtually overruled by this court when it was here before; and, consequently, they are now out of the case. The first instruction, submitted upon the last trial before the Circuit Court, and which is now insisted upon, is, that: “If the proposition to pay the $300 spoken of by the witness, to Viser, the husband, was in any way coupled with the withdrawal of defence or opposition to the divorce case, the contract was void, and the plaintiff cannot recover.” The second is of a precisely similar import, and, therefore, it is not necessary to transcribe it into this opinion. The third was that Mrs. Viser was entitled, on a divorce legally obtained, to have decreed to her and delivered into her possession, all property which she inherited, or got from her father, and which came to him by the marriage, and Viser had no right thereto, upon and after said divorce. The fourth and last, is, that the “deed of Yiser read by defendant, could not be revoked, and upon the facts admitted, upon a legal divorce obtained by Mrs. Yiser, her husband could have held none of the negroes.” The appellant was clearly entitled to the benefit of the two first, and in case they shall not have been substantially given, her right to a reversal is equally undeniable. But after the court refused the four instructions submitted by her, it proceeded upon its own motion, and against her objection, to give in lieu thereof, the following, to wit:

“If the $300 claimed by plaintiff, or any part of it, was promised by defendant, in consideration of the husband Yiser, withdrawing his opposition to the divorce case, then plaintiff' cannot recover.” And 2d. “If the $300 was paid by plaintiff for the sole purpose of divesting the husband of all rights of his to the negroes, then the plaintiff may recover, it the jury is satisfied that the money was paid for her, and for her benefit.”

These last two, and which were given in charge, were the same, in substance, as the two that were refused, touching the same question; and, consequently, the error is cured, and no room is left for dissatisfaction or complaint. The third instruction asked and refused by the court, should have been given. The fact that a divorce had been pronounced, was established by the. testimony: and the appellant was entitled to a declaration of the law from the court, as to the effect of such decree, upon the interest that Yiser had in the negroes. The fact that any interest of Yiser’s in the negroes would cease eo instanti, upon the dissolution of the marriage tie, is a circumstance from which the jury would be authorized to infer that the divorce might have had more or less influence upon her mind, either as a preferred mode of acquiring his interest, or as an additional or double security co-operating with the purchase. That the legal effect of the divorce would have been to restore to her the sole use and control of all her separate estate which was undisposed of at that time, there can be no doubt: and, consequently, she was entitled to the sense of the jury upon the question, whether she relied in wliole or in part, for the enjoyment of such interest, upon the decree for a divorce; and, consequently, whether it formed any part of the consideration of the contract for the three hundred dollars. If the contract entered into between the appellant and Viser, her husband, was even void in law, for want of consideration, yet the appellee’s right to recover, in the present action, in the absence of fraud or collusion, could not be questioned; or to be more explicit, although the contract for Yiser’s interest in the negroes might not be enforcible, either in law or equity, for want of consideration as between themselves, yet this suit, being founded upon another and different contract, could not be, in the slightest degree, affected by it.

The only question, then, that was presented under the state of case as made out, was whether the compounding of the divorce suit entered into the consideration of the contract, as between the appellant and Yiser, her husband, for the three hundred dollars.

This brings us to the consideration of the fourth and last instruction. This ought also to have been given. "Where an authority or power is coupled with an interest, or where it is given for a valuable consideration, or where it is a part of a security, there, unless there is an express stipulation that it shall be revocable, it is, from its own nature and character, in contemplation of law, irrevocable, whether it is expressed to be so upon the face of the instrument conferring the authority or not. See Story on Agency, 616. The instrument under consideration is not expressed upon its face to be revocable ; and, consequently, if it falls within either of the descriptions here enumerated, it could not be revoked. It is manifest that it cannot be regarded as a deed of trust, in a strict technical sense, since it does not contain the operative words of grant, bargain and sell, or any other words of like import; but on the contrary, it shows a mere appointment or constitution of an agent, to take charge of the property designated, and to hire it out, and to appropriate the proceeds to the use of the appellant and her daughter. But it is a power founded upon a valuable consideration; and, consequently, not revocable, since there is no express stipulation for that purpose. If this be the correct construction to be given to the deed in question, it follows of necessity, that the parol evidence of its revocation, was improperly received. The instrument was clearly competent evidence to rebut the presumption that the interest of Viser in the negroes constituted the sole consideration of the promise to pay him the three hundred dollars. It furnished a circumstance, but of what weight, the jury alone were competent to decide. The deed showed that the whole interest of Viser, whatever it may have been, had passed out of him, and vested in the appellant and her daughter, prior to the date of the contract for the three hundred dollars sued for; and, as a matter of course, she was entitled to have the benefit of their judgment, in ascertaining whether she was satisfied with such title as had already been conferred upon her by the deed; and the divorce being the only other consideration, whether she did or did not base her promise upon such consideration. If the jury should have believed that she was not satisfied with her title under the deed, or that she doubted whether, under the circumstances, and in view of the relation then subsisting between herself and Viser, any title either had or could pass to her, or whether she supposed that, by making the purchase again, and that in her own name, and in her individual right, she could enjoy her property more quietly, and be freed from any apprehended annoyance from Viser, or from any other imaginable cause, that she looked wholly and solely to the interest in the negroes, and not in the minutest degree to any benefit which she might derive from the divorce, she was most clearly and unquestionably, entitled to the benefit of it. The Circuit Court, therefore, erred in receiving the parol evidence going to revoke the deed, because the jury were thereby authorized to disregard it; and, consequently, to deprive the appellant of such presumptions as it might have raised to repel the case attempted to be established against her. We think, that for these errors, the judgment ought to be, and the same is, hereby reversed, and remanded to be proceeded in, according to law, and not inconsistent with this opinion.

Chief Justice English not sitting in this case.