Swift v. Fitzhugh, 9 Port. 39

9 Port. 39 | Ala. | 1839

ORMOND, J.

The important questions arising in this case, will be considered in the following order.

First — was the evidence of the loss of the deed, executed by Maguire, sufficient to authorise proof of its contents, by secondary evidence? The rule as laid down by this court, in the case of Mordecai vs. Beall, at the present term, is decisive of this question.

The preliminary proof, in this case, (so far as it is necessary to state it,) is that the original deed was placed in the hands of the counsel for the defendant in error, to enable them to institute this and other suits; — that to obtain proof of the execution of the deed, it was sent with a commission, to one Garrett Duncan of Kentucky — and that Duncan had informed the counsel, by letter, that the deed had been enclosed in the commission, and with the deposition, forwarded by mail, to the clerk of the Circuit court of Mobile county. The deposition, with its enclosure, never reached Mobile. An effort had been made to take the deposition of Duncan, which failed, from his absence. The plaintiff below, who is a resident of the State of "Virginia, also made affidavit in Kentucky, to the' loss of the deed; but as that fact does not influence the opinion of the court it is not taken into consideration.

John EL. Maguire, one of the parties to the deed, was also introduced as a witness, by the plaintiff below, and proved facts, tending’ to prove that he executed the original.

We think this proof sufficient to authorise the introduction of secondary evidence of the contents of the deed.

That the deed once existed, and that it is now lost, is satisfactorily shown — and no inference can fairly be drawn, from the facts, that it is voluntarily withheld. The non-residence of Duncan sufficiently explains why the evidence of the person into whose hands the paper is last traced, is not before the court. And the correspondence between Duncan and the counsel for the plaintiff below is certainly fully equivalent to a demand of the instrument, which, when such holder is a non-resident, was held, in Mordecai vs. Beall, to be sufficient, without taking his deposition, to prove the fact.

Secondly — .was the evidence of the contents of the deed, produced in the court below, sufficient?

The evidence so offered, consisted, 1st. of the contents of a statute of Virginia, authorising the proof and registration of such deeds as the one in controversy. 2d. A transcript, purporting to bo a copy of the said deed, with the certificate of attestation appended thereto, showing it to be acknowledged and recorded in Virginia.

Thirdly — a transcript of the same deed, recorded in the office of the county court of Mobile county.

Fourthly — the evidence of John 31. Maguire, who had intermarried with the daughter of the plaintiff below, who deposed, iu substance, that about the date of the paper purporting to be a copy of the lost deed, he did sign a paper or deed, but that he did not read itthat said deed was made in pursuance to a promise he had made previous to his marriage, to execute a deed of trust of his wife’s property. — That he claimed the negro in controversy, as his own; and hired him to the plaintiff in error, as such. The plaintiff in error then objected to the competency of the witness, on the ground, that he could not testify, to destroy a title he had himself given. But the objection was overruled by the court, as were also objections made to the previous evidence, above cited. ■ These questions will ail be considered, in their order.

The copy of the Virginia statute is certified under an act of the legislature of this State, (Aikin’s Digest, 284,) which authorises the Secretary of State to certify copies of the acts of the several States, on file in his office, and makes such certified copy, evidence. The copy thus furnished, purports to be a copy of an act from the Virginia Revised Code, the title of which is, “An act to reduce into one, the several acts for conveyances, and concerning wrongful alienations.” It commences with the fourth section and ends with the twelfth. The certificate is in these words: “I do hereby certify that the foregoing is a true copy of the act within mentioned, or such sections thereof as are deemed material. And it is now urged, that the transcript must be rejected, because the whole act is not given.

If an act of the legislature always related solely to one subject, there would be some force in the objection; but we know the fací to be, that a single act of the legislature frequently embraces subject matters entirely distinct in their character, and which may be considered, when so blended, as distinct ptirllamenlary acts. The officer to whom this duty is by law entrusted, acts undef the sanction of his official oath, and we must presume that he has furnished the court with all of the act which relates to this particular subject. If the residue of the act be, as we must presume it is, irrelevant to-the controversy between the parties, it would be improper to bur-then the record with it. If, indeed, an extract of the law of another State, offered in evidence, affords internal evidence, that a material portion of the law is omitted, or if that fact be made to appear, in any other mode, the transcript would of course be rejected.

This point has been thus ruled,, in the case of Hunter vs. Fulcher — (5 Rand. Rep. 126.) In that case it was determined, that when a party in Virginia, relies on the law of another State, he may produce an authenticated copy of the section only on which he relies, and shall not be required to produce a copy of the whole law.

Was the copy of the deed with the authentication of the clerk of the court in which it was registered, evidence of the contents of the original ?

By the law of Virginia, a copy of which is found in the record, it appears that such instruments as we are now examining, arc by law required to be recorded““and any conveyance so recorded,” the act proceeds to say,, “shall have the same legal validity, in all respects, as if it. were proved in open court.” It is most manifest, then, that in Virginia, (the act of the legislature having been com-.plied with,) the original deed would have been evidence, without further proof of its execution, than was afforded by the certificates of the several officers, of its acknowledgment and registration. What effect is it to him, when offered in evidence to the courts of this State, on the same proof? The act of congress, in pursuance to which this copy is authenticated, piovides-that “the said records and exemplifications shall have such faith and-credit given them, in every court and office within the United States, as they have by law or usage, in the courts or offices of the State from whence the same are or shall be taken.” So that were the original deed here, no further proof would be required of its execution.

In Virginia, from whence this deed comes, it appears, by the case of Ben vs. Pute — (2 Sand. Rep. 539,) that a certified copy of a deed, recorded upon the acknowledgment of the grantor, though not required by law, to he recorded, is evidence against the grantor, and all claiming under him, of the execution of the original deed, it being lost; and by necessary consequence, such would be the law, in the case of a registered deed, required by law to be recorded — and in that case the court say, accordingly — “If this were a deed required by law, tobe recorded, there could be no difficulty in the question : copies of such deeds being every day admitted, without other evidence than their having been recorded.” To give effect, then, to the act of congress, we must give to the copy thus authenticated, the original being lost, the same effect the original would have, if produced, both as to its contents, and to the acknowledgment of its execution.

This has, in effect, been, heretofore, the decision of this court. In Mitchell vs. Mitchell — (.3 Stew. & Porter, 81,) one of the questions in the cause was, whether a copy of a deed, recorded in the State of Georgia, was admissible, as evidence, to prove the contents of a deed, the original being lost. The court held that it was properly excluded, as it was not shewn that, by the law of Georgia, such ^conveyanees ioere required to be recorded.

In the case of Tatum vs. Young — (1 Porter, 310,) the court re-affirm the doctrine held in the case just cited, and apply it to the case then before them. It is, therefore, clear, both on principle and authority, that where, by the law of another State, a deed or other instrument is required to be recorded, if such deed or other instrument be properly authenticated, under the act of congress, before referred to, it will have the same effect in this State,-that it was entitled to by the laws of the State whence it came. — See, also, Owings vs. Hull — (9 Peters’s Rep. 626.)

The offer in evidence of the record of the same deed, from the office of the county court of Mobile, could not possibly prejudice the plaintiff in error: it was at most a mere unnecessary act. The act of eighteen hundred and twenty-four, (Aikin’s Dig., 207,) under which the record seems to have been made, provides, “ that all property mortgaged, or under any deed of trust or other legal in-cumbrance, which may afterwards be removed, to any county in this State, shall be liable to the payment of any debts which the holder of such mortgaged property may contract after his settlement in such county, unless the mortgage, deed of trust or incumbrance, covering such property, removed, as aforesaid, shall be duly recorded in the clerk’s office of the county court of the county to which such property may he removed, within six months; unless the person bringing such incumbered property into any county in this State, shall have removed from another State; in which case, one year shall be allowed, for the recording of any such mortgage, deed of trust or other legal incumbrance, after such settlement, as aforesaid. — Provided, that after such record duly made, the provisions herein shall cease to take effect.”

The objection made to the introduction of this evidence, is, that it was admitted to record, without proof of its execution ; but it is manifest that this act does not require proof of the execution, as a condition of the registration of the instruments embraced by it. The act presumes that to have been done in the county where the transaction took place, and before the property was removed — and requires, upon its removal, that the deed shall be recorded in the county to which the property covered by the deed is removed; obviously, for the purpose only, of giving notice of the incumbrance.

What effect the act in question would have on property removed from another State to this, the property being incumbered by an instrument, which, by the law of this State, is required to be recorded, is not necessary now to be determined.

The deed in this case, is a post nuptial settlement, made in pursuance to an anti nuptial agreement; the execution of which, had it not been voluntarily made, a court of Chancery would have enforced. Such an instrument is not within, either the letter or spirit of the terms “deed of trust, mortgage or other legal incum-brance,” as used in the act of eighteen hundred and twenty-four. Property thus circumstanced, cannot, in any sense, legal or popular, be said to be incumbered, as that term always implies previous ownership, and a right to incumber, or subject property to the payment of a debt j whereas, in this case, Maguire never was the owner of the property — the instrument in question, being merely evidence of the renunciation, before marriage, of his marital rights. There was, therefore, no necessity imposed by the act of eighteen hundred and twenty-four, to record this deed, on the removal of the negroes from Virginia to Mobile.

The competency of Maguire, to testify as a witness in the cause, is resisted by the counsel for the plaintiff in error, on the ground, that it is against public policy, to permit a witness, circumstanced as he was, to testify— and also, because he was called as a witness, to destroy a title he had himself given.

The question, whether one, who had signed an instrument of writing, or who had, by his signature, given currency to negotiable paper, should be afterwards allowed to impeach it, has been fiercely contested, both in England and the United States. It is not necessary, now, to review the cases, but it is believed, that in England, at this day, and in most, if not all the States of the Union, the objection is confined to the interest of the witness, in the event of the cause. Such have been the decisions of this court. —■ See Todd vs. Stafford — (1 Stewart, 199) — Kennon vs. M’Rae — (2 Porter, 389,) and Carroll vs. Meeks — (3 Porter, 226.) But, in truth, the question does not arise here : the witness was not called to impeach the deed, but to prove that such a deed once existed. This is not, therefore, a case in which the rule invoked by the counsel, could apply, even if this court were disposed to admit its correctness.

Whether any case can exist, in which a witness may be allowed to impeach a title he has himself made, it is not necessary now to determine, as this witness was not called for that purpose, but to prove a separate and independent fact.

The contract between the plaintiff in error and the witness, was the hiring by the latter, to the former, of the slave in controversy, for a iimited time. This contract he was not called on to impeach, or deny. It is true, he was called on to testify as to other facts, which might assist in the conclusion of law, that he had no title to the property thus hired : But such consequences, or legal conclusions, can have no bearing on the rule of evidence, we are now considering. The admission of the fact, that anterior to the hiring, he had executed a deed, embracing the slave in question, the legal validity of which he denied, cannot, in any just sense be considered as impeaching the contract of hiring, or denying its validity. So far as he was concerned, it was valid.— The only question was, whether it was binding on the defendant in error. It follows that the court did not err, in admitting the witness to testify.

We will now proceed to examine the correctness of the charges given by the court, and the refusal to charge, as moved for, by the plaintiff in error.

The witness, John H. Maguire, stated on his examination, that about the time of the date of the paper, purporting to be a copy of the deed, he did sign a paper or deed ; but that at the time of signing it, he did not read it. — 'That about two weeks before, he had inler- * married with Anne Maguire, formerly Anne Fitzhugh. That just before the marriage, the company having assembled, and the parties ready for the ceremony, the plaintiff belosv, called said witness into an adjoining room, and required of him that he would agree to execute to her, a deed of trust of his wife’s property to secure it against accident, which he agreed to, under the circumstances, but which subject had never before been mentioned to him. He further deposed, that about two weeks after the marriage, the paper which he signed, was presented to him, and he signed it. — That he did not read it, and does not recollect if it was read to him or not, — he does not recollect that it was, and believes that it was not. — That if read by the person who drew it, at all, he cannot say, whether for his own benefit, or for the benefit of the witnesses. — That he had never seen it since. — That he considered the deed as improperly obtained from him, by the plaintiff below, at the time.— That he cannot say whether the paper offered as a copy, is a copy or not — not knowing what the original contained. — That if it be a true copy of the original, the original contains different stipulations from what was agreed on, verbally, before the marriage. — That by the verbal agreement, before the marriage, he agreed to convey the property, in trust, for the use of himself, his wife and the issue: but not as provided in the paper now produced. — That he signed the deed in the confidence that the plaintiff had procured it to be drawn, as agreed between them, and did not suppose it was different— that there was no force or compulsion exerted over him, and that if he had been disposed to have read the paper, he could have done so — that there was no misunderstanding between him and the plaintiff below, at that time, and no practice to prevent him from knowing the contents of the paper — that none of the property had been delivered into his possession, prior to the execution of the , paper. He afterwards acknowledged the execution of the deed.

Upon this evidence, connected with the documentary evidence already commented on, the court charged the jury, that the said deed was a marriage settlement, which was a description of deeds favored in law — that the original deed being lost, the copy before thenr was evidence of it, and to be received by them as a true copy in lieu of the original; and that if the original was valid, the paper before them was sufficiently established as a copy — that if the original was obtained by fraud or duress, the original would not he valid, but that the circumstances detailed by the witness, were not sufficient, in the opinion of the court, to invalidate the deed for fraud. That fraud should be proved by facts, which would amount, in law, to fraud. That the deed upon its face was valid and lawful, and that unless fraudulently obtained, or by duress, they were bound to give it effect.

The court further instructed the jury, that to maintain the action, it was not necessary that the plaintiff should produce any evidence that Mrs. Ann Maguire had given directions, in writing or otherwise, to the trustee, to maintain it — that the title of the plaintiff could prevail, notwithstanding the defendant was a hirer for valuable consideration, without notice that he could have secured his rights by warranty from Maguire, if he desired it, and hired the property at his risk, as to the true title. This opinion of the court is excepted to, and is assigned for error.

So far as the charge of the court relates to the documentary evidence, it has been already considered and sustained. It remains to consider it in reference to the fraud, supposed to be established by the evidence of Ma-guire, which will be examined in two aspects: First — - Whether the facts stated by the witness, amount in law to fraud ? Secondly — Whether the terms in which th@ charge is conceived, can be sustained ?

If a deed be obtained by duress, or by false and fraudulent practices, as, if it be falsely read to the party, or he be induced to execute it whilst in a fit of drunkenness-—such deed has no legal existence; and though free from, the vices just specified, it may be so wholly false and fraudulent, as to be void both at law and in equity.— But a court of law can hold no middle course, but must either give effect to, or wholly reject a deed — whilst a court of equity, by reforming it, and making it speak the true intention of the parties, can do exact justice between them. A court of law would not be authorised' to reject a deed, because it was obtained under suspicious circumstances; especially,'in a case where the deed was admitted in the main to be just, and the improper stipulations were not obtained or inserted by covin or circumvention, and could have been prevented by the exercise of ordinary diligence; for it is as true that the law seeks to do exact justice between man and man, as that it abhors fraud. In such a case, to permit a man to vacate the deed entirely, would be to enable him to profit by his own negligence.

This doctrine is illustrated by the language of Judge Roane, in the case of Taylor vs. King, 6 Munf. Rep. 366. In that case, Taylor had colluded with others to purchase a tract of land at a trust sale, at an under value, and did purchase it at less than one-sixth of its value, and obtained a deed therefor from the trustee. He afterwards brought an action of ejectment for the land. The jury rendered a special verdict, finding these facts, and the court rendered judgment for the defendant. On an appeal by Taylor, the Court of Appeals of Virginia hol'd this language:

“ The jury found a special verdict, detailing certain acts committed by the appellant at the time of the sale, which are fraudulent as to the defendant; and they also find them to be fraudulent. These facts tended to prevent competition at the sale, by'means of which it is also found the appellant got the land for about one seventh of its value. There is no doubt but that in a court of equity, these facts would vacate the sale, and the defendant be deemed to hold the land subject to the trust ; nor is there any doubt but that in a court of law, a fraud may be given in evidence to vacate a deed, if that fraud relates to the execution of the instrument; as if it be misread to the party, or his signature be obtained to an instrument, which he did not intend to sign. It would he too much, however, to vacate a bond at law, because a party was imposed on in a settlement of accounts, which preceded its execution, or a bond or deed, which was founded on a false or fraudulent statement of facts.” Many cases are cited in support of the position, to which may be added the case of Watt vs. Grove, 2 Schoule & Lefroy, 501, and Boyd vs. Dunlap, 1 Johns. Ch. R. 478.

Now, in this case, the witness expressly admits that there was no practice resorted to, to prevent him from knowing the contents of the deed. He is not certain whether it was read to him or not, but that he could have read it, i'f he had thought proper to do so, but that he signed it without examining it: he afterwards acknowledged it to be recorded. It would seem impossible to maintain that there was any fraud in the execution of this paper — nor is that contended — but it is insisted} that as the terms of the deed are not the same as those verbally agreed on before the marriage, and as it was signed in the confidence that the deed corresponded with the verbal agreement, that it amounts to fraud, and vacates the deed.

From the testimony of the witness, it appears that the ante-nuptial agreement was, that the property of the young lady was to be conveyed in trust for the use of the husband and wife, and the issue. From an inspection of the instrument, it appears that the property was conveyed in trust for the separate use of the wife, with a power of appointment after her death ; and if she failed to execute such power, the property to pass to her right heirs.

If this were a proceeding in chancery by the husband, to reform the deed of settlement, so as to give .him the joint use of the property during his life, it would be, to say the least, exceedingly difficult, on this proof, to decree in his favor. It would be entirely consistent with this proof, that the mother of the young lady understood the ante-nuptial agreement to be as set forth in the deed af-terwards executed, and that if she had not so understood it, the marriage would not have taken place. It is not stated that any representations were made at the execution of the deed, of' its contents, or of the terms of the ante-nuptial agreement; and it is not, perhaps, too much to-say, that such supine negligence on the part of the husband, in signing an instrument, the contents of which he did not know, or seek to know, must be considered as equivalent to giving the mother a carte blanche, as to the terms of'the marriage settlement.

This view of the case, is taken to place in a strong point of light, the great injustice which would flow from declaring the deed void in law, — the consequence of which would be, that though the witness admits, that by the ante-nuptial agreement, he was to have only a qualified interest in the property of his wife — that his own neglect, in not inspecting the deed, or enquiring into its contents, previous to its execution, is to be the means of vesting him with the absolute title. We are therefore clear, that both on principle and authority, the facts stated by the witness did not constitute fraud, so as to vacate the deed in a court of law.

Was it error in the court so to instruct the jury % The argument of counsel is,that in so doing, the court usurped the province of the jury.

The trial by jury is the most cherished, if not the most valuable institution, we have derived from our Saxon ancestors; and it is important, therefore, that it should not be impaired. But to render it valuable in practice, it is equally as important that it should be confined within its appropriate limits — the ascertainment of facts — and that the jury be not suffered to do that which they are unfit for — expound the law. In the great majority of cases tried in court, it requires the united agency of the court and jury to attain a result, the facts being controverted between the parties. In such a state of case, the court can only state the law hypothetically, in the event the jury attain a certain conclusion. But it is not only not erroneous, but peculiarly proper, that the court should charge directly upon the facts, and give the law of the case, where the facts are not controverted, instead of putting a hypothetical case, and thereby embarrass the jury, by implying a doubt about that which had not been disputed.

Fraud is a question of law — -though, as has been ob-'' served, from the manner in which cases are usually presented in-court, it must, in general, be left to the jury to determine. But, when the facts are clear and undisputed, the question of fraud, or not, is a pure question of law. Thus, Lord Mansfield, in the case of Bright, ex'or, vs. Eynon, 1 Burrows, 395, says, “ what circumstances and facts amount to such fraud and covin, is always a question of law.” So, in the case of Sturtevant vs. Bullard, 9 Johns, it. 337, the law is thus stated: “ Fraud is a question of law, especially where there is no dispute about facts: it is the judgment of law on facts and intents.”

Those authorities are conclusive to show, that the court did not err in the charge. There was no controversy about facts — the question was as to their legal effect. The deed, on its face, was fair: it was of a class of instruments highly favored in law. It was not pretended that the deed was obtained by duress. The only circumstance by which it could be impugned, was the testimony of Maguire; and it, is inconceivable how the plaintiff in error could be injured by the court assuming that testimony as true, and charging as to its legal effect: if an error at all, if was in his favor, as the jury might have disbelieved Maguire, and then the deed would have stood uncontradicted.

This principle has, in effect, been determined by this court in Pope’s adm’r vs. Robinson, 1 Stewart, 415. It was there held, that it was not error to charge the jury, “that if they believed the evidence offered by the plaintiff, it sustained his declaration.” In that case, the court charged on the legal effect of testimony, if believed by them — in this, on the legal effect of testimony not controverted.

By the deed, the legal title to the property was vested in the defendant in error — all the other parties to the deed took mere equities under it: the action was, therefore, properly brought by her. Nor was it necessary that she should have been required to sue by the cestui que trust, Mrs. Anne Maguire. The clause in the deed which requires the trustee “ to sell or dispose of the property, or the proceeds thereof, as Mrs. Anne Maguire may in writing direct,” does not apply to the pursuit of the property by suit. The law casts upon her, as trustee, the duty of preserving the property, and of course invests her with power to use the means necessary to accomplish the object.

The deed being thus ascertained to be valid, the plaintiff in error, who was a hirer of the slave in controversy, from Maguire, cannot be in any better situation than he is; and unless Maguire had authority from the defendant in error to make such hiring, he-could convey no title. Such authority, it was contended by the court below, was contained in a letter from the defendant in error to Maguire, which was read in evidence; and the court were asked to instruct the jury, “that if they believed the slave had been placed in the possession of Maguire by the 'plaintiff, to be used and hired by him, and that she had hired said slave to the defendant for value, and if the defendant had no notice of the plaintiff’s title, and his time of hiring had not expired when the suit was brought — and if the plaintiff had given her assent to the said hiring, knowing the said slave was so hired, that the plaintiff could not maintain the action. This the court refused — and charged the jury, that if they found from the evidence, that Maguire was the agent of the plaintiff, and had hired the said slave in pursuance of his authority as such, and had acted within the powers given him for that purpose, then it would be binding on the plaintiff — that the jury ought to be satisfied from the evidence, that Maguire was the plaintiff’s agent, and that it did not follow, from the fact of the permission to the parties to bring the negroes to this country — and if it was to be inferred from the letter of the plaintiff in evidence, that the jury would consider from the date of that letter, and its terms, whether it was applicable to this hiring.”

The charge, as ask ed for, must be considered entire; and if any material portion of it was" abstract, or not warranted by the testimony, the court was right in rejecting it altogether. The court are asked to charge the jury, “ that if the plaintiff had given her assent to the said hiring, knowing the said slave to be so hired, that the action could not be maintained.” Now, there is no evidence warranting this charge. The evidence which appears to have been relied on for that purpose, is a passage in a letter written by the defendant in error, to Maguire, the eighth of April, eighteen hundred and thirty-four — his wife and himself being then resident in Mobile — and urging theca to return to "Virginia to live. It reads thus: “ I am sur.e she (Mrs. Maguire,) would be happier with her relations, and you would be near. You have also property here, and if your negroes are hired out, which I presume they are, as you are not farming, they can return when the time expires for which they are hired.”

It would be doing some violence to the language, to construe this into an assent to any hiring — for she professes ignorance, as to his movements. But, at least, it cannot, by any fair, construction, be considered as an assent to a hiring, made in May, eighteen hundred and thirty-five, of which, it doss not appear, the defendant in error had any knowledge: for this reason, therefore,if for no other, the court were right, in refusing the charge asked for.

The charge, as given, was strictly correct. As Maguire had no title to the property, he could convey no right to it, but as the agent of the defendant in error. There was no proof of agency, further than it might be inferred, from the permission to the young poeple, to bring the negroes with them to Mobile. As it must be presumed, they were sent to assist in supporting the family, such peimission would have, prima fado, authorised a hiring, as one mean of supporting the family, whilst Maguire and his wife -lived together, in Mobile. But this implied agency must certainly cease, with the state of things which created it.

It appears, from the evidence, that Maguire and his wife, returned to Virginia, in November, eighteen hundred and thirty-four. — That a disagreement took place,in February, eighteen hundred and thirty-five, since which time they have not lived together; and that a complete alienation has, since then, taken place.

This total change of the situation of the parties, must be considered as, in law, putting an end to the implied agency, in Maguire, to obtain a fund for the support of the family, by the labor of the slaves. Can it, indeed, be seriously contended, that sending the negroes to Mobile, with the new married couple, in January, eighteen hundred and thirty-four, is evidence of an agency or authority to hire out the negroes, in May, eighteen hundred and thirty-five, after a separation had taken place, and after the defendant in error had urged the return of the parties, with the negroes, to Virginia ?

The refusal of the court, to charge the jury that the recording of the deed, in Alabama, was unauthorised,- and void, was erroneous; but, as has been already shewn, it was an error, which could not by possibility, injure the defendant in error.

This case has been examined elaborately, and at some length — not only because of the importance of the principles involved in it, but also, because it was ably and earnestly argued on'both sides. The result of our examination is, that there is no error in the record — and the judgment must be affirmed.

GOLDTHWAITE, X, not sitting.