Carter v. Bennett

4 Fla. 283

• Court: Supreme Court of Florida
• Decided: January 15, 1852
• Status: Published

Opinion

ANDERSON, Chief Justice,

delivered the opinion of the Court.

This was an action of trover brought by the apjoellee against the appellant in the County of Franklin, to recover damages for the alleged conversion of a number of negro slaves.

On the trial in that Court, at the Fall term of 1848, there was a verdict and judgment in favor of plaintiff for the amount of $19,999 66-100.

The case was brought by appeal to this Court. The errors assigned, being twenty-eight in number, we propose to consider in the order presented by the record, and to make such reference to the facts of the case as may be necessary to the proper understanding of the points upon which we are called to decide.

The first and second errors assigned' — which we shall consider together as ' presenting substantially the same question — are in the following words :

“ 1st. The Court erred in giving judgment for the plaintiff below, because the action was brought in December, 1842, in the Superior Court of Franklin County, Territory of Florida, and in said Court continued until the 17th of February, 1845, when it was ordered that this cause be continued, by consent of counsel, until the newt-term, whereby it appears that this cause is yet pending in the District Court of the United States for the District of Apalachicola, (a Court of Federal cognizance and jurisdiction,) unless removed by act of Congress to some other Court, and the Cireut Court has no jurisdiction to give judgment in this case.

“ 2. Because it nowhere appears by what rule, law, authority or order said Circuit Court obtained jurisdiction to hear and determine said cause so commenced and continued in the said Superior Court of Franklin County, Territory of Florida, and the record showing that the canse was so commenced in another Court and another jurisdiction, it must appear, to give validity to the decision of the Circuit Court, thát said cause came into said Circuit Court lawfully and regularly for decision, and not so appearing, said decision must be reversed.”

The facts upon which this denial of the jurisdiction of the Circuit Court is founded, are briefly as follows :

The action was commenced in December, 1842, in the Superior Court- of Franklin County, while Florida was a Territory of the United States.

It -was continued from term to term till the 17th of February, 1845, on which day the following order was made, viz : “ Ordered that this cause be continued, by consent of counsel, until the next term.” On the Sd of March oí the same year Florida was admitted into the Union as a State, and the new State Legislature having proceeded with as little delay as possible to organize a State Judiciary, the State Courts were held in the respective Counties at the Fall terms.

In December, 18,45,' the order of the State Court sitting in Franklin County, in relation to the case before us, was as follows, viz : “ Ordered that this cause be continued.”

At the Spring term, 1846, we find a similar order. At the Fall term, 1846, the parties appeared, by their attorneys, and argued a motion made by the plaintiffto rule out certain depositions, and the cause was again continued.

There was no Spring term held in 1847, and at the Fall term of that year, and the Spring term of 1848, the same orders of continuance were made. At the Fall term, 1848, the parties came, by their attorneys, and a jury being called, they went to trial, which resulted in the verdict and judgment already mentioned.

Upon this statement the enquiry naturally arises as to the mode in which the State Court became possessed of the papers and proceedings appertaining to a cause which had originated in a Court of another power, and of the right of the State Court after obtaining such possession to carry on and complete, without new process and pleadings, a judicial controversy left incomplete by the Territorial or United States Court when it passed out of existence.

The fact is incontestible that the Superior Court of the Territory, though not a constitutional but a legislative Court, according to the distinction made by the Supreme Court of the United States, in the case of the American Insurance Company vs. Canter, (1 Peters’ R. 546,) was a Court 'of the United States, since it derived its existence from the legislation of the United States, acting tinder the powers conferred by the Constitution.

The Circuit Court being a State Court, had no right as such to succeed to the records and jurisdiction of the Superior Courts, although the State Courts were held in the same places, and were found to be in possession of the records and exercised in fact jurisdiction, though somewhat restricted, over the same matters.

One Court was not the successor of the other in any sense not provided for by competent legislation, and the possession of the papers without the sanction of such legislation was wholly impotent to carry with it into a distinct tribunal jurisdiction over the various controversies of which those papers were only the records.

Another consequence may be deduced from the fact that these two Courts derived their existence and their powers from distinct sources, and that is, that the legislation which we have said is necessary to create any relation between the Courts, must have the sanction, express or implied, of both the sovereignties to which they belonged, before such legislation can be binding upon the Courts, either as to their officers or as to the suitors.

As no' legislation of the Congress of the United States could interfere with the records and limited jurisdiction of the State Courts, (except in certain cases where the States have antecedently ceded the right,) without the acquiescence of the State, so can no State legislation, without the acquiescence of Congress, mate the records of a Territorial or United States Court the records of the State Courts, or authorize any proceedings on them.

These propositions as thus stated, seem to require no argument, and were clearly recognized by this Court at its last session, in the case of Innerarity vs. Curtis & Griswold.

The case before us was commenced in the Territorial Court in 1842, and was continued from term to term until the last session of that Court, February, 1845 ; and in the Fall of that year, we find it, without new process, on the docket of the State Court at its first session, and it was considered and continued by that Court from term to term until final trial. As we have alleged in the general propositions already stated, that the validity of this transfer of the cause from one Court to another depends upon the concurring legislation of the State and Congress, we are brought to an enquiry into the character and extent of such legislation.

The Constitution of the State of Florida gives to the Circuit Courts the most extensive jurisdiction. The sixth Section of the fifth Article provides that “ The Circuit “ Courts shall have original jurisdiction in all matters, “ civil or criminal, within this State, not otherwise ex- “ cepted in this Constitution.”

The subject matter of the suit between Bennett and Carter is no where excepted in the Constitution, and was therefore legitimately before the Circuit Court for Franklin County, if properly brought there.

The act of July 22,1845, in section 5th, enacts that “all “ causes, civil and criminal, pending in the Superior Courts, “ and all common law cases pending in the County Courts, “ shall be transferred to the Circuit Courts, to be held in “ the several Counties in which such cases may be so jDend“ing as aforesaid, together with all the papers connected “ therewith or relating thereto, and the said causes shall be “ proceeded in without delay in said Circuit Courts.”

The same act, in its 8th section, makes substantially the same provision for the transfer of papers and the jurisdicr tion of causes pending in the Superior Courts, with the following exception : “ Except all cases cognizable by the “ Federal Courts which may be organized in this State, “ which cases shall be transferred to said Court.”

These provisions of the Constitution and the Laws seem ample to-give to the Circuit Court (so far as the State is competent to give it), jurisdiction over the cause before us, and a right to the possession of the papers connected therewith or relating thereto, unless it comes within the exception just recited, i

If it was a case c^ogpizable by the Federal Courts which might be organized m the State, it would seem by the terms of the 8th section of the act referred to, to be excepted from the operation of this provision for transferring, even though the jurisdiction of the two Courts might be concurrent.

It could scarcely have been within the contemplation of the Legislature to give to the exception this extensive im port; but as the purpose of the law was a transfer of cases from a distinct and independent tribunal, and there was no inherent virtue in the State Court considered in its relation to the Territorial Court to draw, to it, from the latter, its jurisdiction, independently of legislative enactment, we feel constrained to interpret the extent of this exception according to the plain and literal meaning of its terms, and if this case was cognizable by the Federal Courts, to sustain the error here assigned.

Was it then cognizable by the Federal Court? Could the Federal Court, which was organized in this State, have taken cognizance of.it? Let us see.

All the Courts of the United States derive their authority from express grant, and “ can exercise jurisdiction in “ those cases only where it is conferred upon them by act “of Congress.” 1 Wash. C. C. R. 231.

The acts of Congress conferring authority upon the Federal Court organized in Florida (so far as they relate to the subject of our present enquiry,) are the general judiciary act of 1789, and the act of February 22, 1817, which has more direct reference to the Court in this State..

The former act, after providing for the jurisdiction of the Circuit Court in certain cases, in its 12th section provides, “ That if a suit be commenced in any State Court against “ an alien, or by a citizen of the State in which the suit is “brought against the citizen of another State, the matter “ in dispute exceeding five hundred dollars, and the defendant shall, at the time of entering his appearance in “ such State Court, file his petition for the removal of the “ cause for trial into the next Circuit Court, on giving bail, “ &c., the cause shall then proceed as if brought by origi- “ nal process.”

This provision of the act is the only one under which it Us claimed that the case before us -was cognizable by the Federal Court, and the claim rests upon the alledged fact that Carter was a citizen of the State of Georgia. This fact no where ajipears during the progress of the trial, either in the pleadings or the evidence; but after verdict, upon a motion in arrest of judgment, the defendant offered to prove that, at the commencement of the action, and at all times since, ho was a citizen and resident of the State of Georgia, and the fact was admitted by counsel for plaintiff.

The Federal Court deriving its authority solely from express grant, Carter must bring his right to be sued in that Court, within the provisions of such grant: the Court cannot take jurisdiction by mere analogy.

This suit was not commenced in a State Court, nor did the defendant at the appearance term, nor at any term, file his petition for the removal of the cause. Where, then, is the authority of the Court to take cognizance ? The judiciary act gives no authority for the removal of a cause commenced in a Territorial Court, and especially where no motion is made until after verdict; and the authority not being given, it must be denied under the decision already quoted from the Circuit Court Reports, that the Courts of the United States “ can exercise jurisdiction in “ those cases only where it is conferred upon them by act “ of Congress.”

It is no sufficient answer to this position to say that, from the peculiar circumstances attending the changes which occurred in the year 1845 in the judicial system in Florida, the defendant was never in a situation to avail himself of the privileges secured by the judiciary act to a non-resident defendant, according to the literal provisions of the act, and that he ought not to suffer from this involuntary disability.

It may be a hardship, but the Court cannot make law; and we have seen that the United States Court cannot take" jurisdiction, however meritorious the claim, without express grant. The very statement of the hardship negatives the right.

The laws of Florida, with unwonted and perhaps unguarded liberality, surrendered to the Federal Courts all the pending cases where there was concurrent jurisdiction, wherever the latter could or woidd take cognizance, but the judiciary act of 1789 does not bring this case within its cognizance.

Let us now enquire if the act of Congress of February 22, 1847, passed in more direct reference to the Court of Florida, supplies the omission.

The object of this act was to place under the control and jurisdiction of the District Court organized in Florida, certain records and proceedings in the old Territorial Courts.

The act is too long to be here recited, but a careful examination of it will show that it makes no provision for the transfer of the case in • question. There are several classes of cases enumerated in the act, and transferred to the District Court, and we will briefly describe them.

1st. Pending suits in relation to private land claims under certain acts of Congress.

2d. Causes pending in the Court of Appeals on the 3d of March, 1845.

3d. Causes determined prior to that period, on which writs of error cordd have been sued out or appeals taken to the Supreme Court under existing laws.

4th. Causes determined wherein writs of error had been sued out or appeals taken.

5th. All cases pending in any of the Superior Courts of Florida or in the Court of Appeals on the 3d March, 1845, and not legally transferred to the State Courts of the State of Florida, and which said Territorial Courts continued to hold cognizance of, and proceeded to determine after that day, or which are claimed to have been since pending therein as Courts of the United States.

Gth. All cases of Federal character and jurisdiction commenced in said Territorial Courts after said day, &c.

The case of Bennett vs. Carter was not founded upon any private land claim, and' is not therefore embraced in the first class.

■It was not pending in the Court of Appeals, and is not therefore embraced in the second class.

It had not been determined prior to the 3d March, 184$, and is not therefore embraced in the third or fourth class.

The Territorial Courts did not continue to hold cogninance of it, and proceed to determine it after that day; neither was it claimed at the date -of the passage of the act to have been pending in the Territorial Courts as Courts of the United States, and it is not therefore embraced in the fifth class.

The case was not commenced after the 3d of March, 1845, and is not therefore embraced in the sixth class.

It thus appears that this case is no where made cognizable by the Federal Court, and not being cognizable by that Court, it does not fall within the excejstion of the Florida law, so that, so far as the Legislature of the State of Florida could accomplish its transfer to the State Courts, the provision for its transfer is abundantly adequate.

We have yet to show the concurrent assent of Congress to this transfer, but before proceeding to do so, we will advert for a moment to the nature of Carter’s claim to any relaxation in his favor of the strict construction we have felt ourselves constrained to give to the legislative delegation of jurisdiction to the Court.

Dhring the interval between the Spring and Fall Terms in 1845, the case is transferred from the Territorial to the State Court. At the Fall Term it is continued without any objection on the part of defendant to the jurisdiction of the Court. At the ensuing Spring term it is again continued, without any objection on his part. At the next term he appears and argues a motion made in reference to the testimony. And thus he continues to appear from term to' term till three years from his first appearance in the State Court had elapsed. At the end of that time he goes to trial, and after a verdict has been rendered against him, we hear for the first time his objections to the Court, or even that he was a citizen of another State.

If he had any privilege at all, it was purely personal. There is no pretence that the subject matter was not cognizable by the State Court; and, a privilege purely personal may be waived, and if it had ever existed was in this instance waived by repeated acquiescence in the jurisdiction assumed.

But to return to the argument: — We have shown that so far as State legislation was competent to give it, the Circuit Court had full authority to hear and determine this case. Ilad it the sanction of Congress, which we have admitted was necessary to the legal transfer of the records and proceedings therein ?

The act of Congress of February 22d, 1847, was designed to transfer to the United States District Court organized in Florida all such records of the late Territorial Courts as belonged appropriately to that Court. A careful specific enumeration was made of all the classes of cases so to be transferred as we have already mentioned. It was made the duty of the District Judge to take the necessary steps to get possession of these specified records from the Clerks of the old Courts, or other officers or persons having them in their possession, these expressions, other officers or persons, pointing obviously to the Clerks of the State Courts, who had in fact succeeded to the custody of the papers. This precise enumeration of eases to be transferred from the State Courts leads irresistibly to the inference that Congress acquiesced in the retention by the State Courts of all the other cases and the papers belonging to them. The act'of the Legislature providing for the transfer of all these cases not thus enumerated had been passed more than a year, and a half, and the State Courts, under the authority of that law, had possessed themselves of them, and had been adjudicating them for nearly the same period. It is impossible to avoid the conclusion that this act of the Legislature and the action- of the Courts under it received the sanction of Congress in the act of 1847, so far as they were not in conflict with that act.

Besides this, Florida had followed many an elder sister into the Union, and the same provisions had been repeatedly made for the transfer of Federal causes to the District Courts, aceomjianied by long acquiescence in the assumption by the Courts of the new States of jurisdiction over causes not federal.

The clearness and force of this inferential sanction of Congress is fully recognized both by the Supreme Court of the United States and by the Supreme Court of this State.

In the case of Benner vs. Porter, 9 Howard R., 235, the Supreme Court say: — “The acts of Congress that have “ been passed in various instances on the admission of a “ State, providing for the transfer of federal causes to the “ District Courts, as in the case of the admission of Florida, “already referred to, and saying nothing at the time “ in respect to those belonging to State authority, may “ very well imply an assent to the transfer of them to the “ appropriate tribunal,

“ Even the omission on the part of Congress to interfere “ at all in the matter may be subject to a like implication, “ and a subsequent assent.would doubtless operate upon “ past acts of transfer by the State authority.”

Our own Supreme Court, in the case of Inerarity vs. Curtis & Griswold, (4 Fla. R., 175,) say :—“ Where, as in “ the case of Florida, the act of 22d February, 1847, pro- “ vides for the transfer of the records and proceedings of “ certain classes of cases, saying nothing about other class- “ es, of which the State Courts could take jurisdiction, the “ inference is irresistible that Congress intended that the “State authorities should assume jurisdiction over the lat- “ ter, or if they had already assumed it, the omission may “ well be considered as a tacit acquiescence in and a ratifi- “ cation of the authority thus claimed and exercised.” “So far as Congress, by the act of February 22, 1847, “ claimed to exercise jurisdiction over certain classes of “ records and pending causes, it is in our opinion the ex- “ ercise of a rightful power, and so far as Congress has not “ claimed those records, it may be -considered as the sanction of the General Government to the 'exercise of the “jurisdiction by the State authorities over the subject.”

We have thus shown that the transfer of the case of Bennett vs. Carter from the Territorial to the Circuit Court in which it was tided was made by the Florida Legislature, with the concurrence and sanction of Congress, and the cooperation of these two authorities was sufficient to give legality to the transfer, and jurisdiction to the Circuit Court.

We conclude, therefore, that the first and second errors are not well assigned.

III. The third error assigned is, that the Court ruled out the notes offered in evidence by defendant.

The defendant was endeavoring to show a title to the negroes under a mortgage executed by -one Warren Jordan in favor of the Georgia Railroad and Banking Company, and after having given the mortgage in evidence, he tendered certain notes, which were ruled out by jtlie Court, upon the ground that they did not appear to be the debt of the mortgage.

It is the duty of the Court to decide upon the relevancy of a particular fact when offered in evidence. The Court, in endeavoring to ascertain this, will not always confine its notice to other facts already proven, which, in connection with the fact proposed, will render the latter pertinent to the issue; but it has a right and ought to require the as-, sertion at least of counsel that it will be shown, by evidence-yet to be offered, to be material,

Sucb is tbe approved practice of tbe Courts, (4 Starkie’s Ev., 381,) and without such statement it is no error to re-, ject an isolated fact apparently immaterial, though it may afterwards appear not to be so,

“ If the evidence be irrelevant at the time it is offered, “ it is not error to reject it because other evidence may af- <.£ terwards be given in connection with which it would be- £-£ come relevant.

££ If it would be relevant in conjunction with other facts, £.‘ it should be proposed in connection with those facts, and <£ an offer to follow the evidence proposed with proofs of ££ those facts at a proper time,” — 2. Phil. Ev. 428, referring to 11 S. and R., 134.

££ A deed to the lessor of the plaintiff may be'rejected as irrelevant unless title first be shown in the grantor, or at least an offer made to follow it up with proof of his title.”' 4 Litt., 272.

In an action on a covenant to save from all judgments in fav< r of P. & B. against the owners of the steamboat II., recovered for tbe price of tbe boat, a record of a judgment on u.otes against the covenantee in favor of P. & B., was. held not relevant thus nakedly presented. It should have been accompanied with proof aliunde 'that the notes were given for the price of the boat' by the owners. Wilson’s admr. vs. Bowen, 5 Monroe, 33.

Though a matter may possibly be relevant, yet the party must show how, otherwise it cannot be received. 2 Philipps on Evidence, 434.

It is evident from these authorities that if the evidence before the Court at the time the notes were offered did not, in connection with the notes themselves and statement of counsel, show them to be relevant to the issue, they were rightly ruled out, whatever evidence might be subsequently offered.

How then did the case stand when the notes were offered, as developed on the record before us ?

The defendant produced an indenture of mortgage from Warren Jordan of certain property in favor of the Georgia Railroad and Banking Company, to secure the payment of his note for $22,500, dated July 1st, 1839, payable six months after date, and endorsed by Reuben Thornton, and of all other notes that might be given in renewal thereof, or of each other, with interest and costs.

The original debt had been $25,000, and it was recited in the mortgage that the note given for that amount was. to be renewed every six months from the first of January, 1839, with a reduction of ten per cent, at each renewal, or twenty per cent, annually, as the Bank might require.

The notes offered were one for $15,000, payable six months after Jidy 1st, 1841, to the order of Reuben Thornton, at the Bank, and another of same date for $627.-

There was no proof that these notes were the notes secured in the mortgage, and though it was alleged that they were the representatives of the debt, of which the mortgage was only an incident, it was not proper to supply the-lack of proof by conjecture. Many things would have had to be proved to connect them with the mortgage, and the lack of antecedent and accompanying proof of these things was not supplied by any statement' of counsel that the identifying evidence would be forthcoming.

But even had it appeared that the notes were those intended to be secured by the mortgage, there was no proof offered to establish the fact that Carter was the owner of them. An assignment of the mortgage is not an assignment of the debt, (as we will have accasion to show hereafter,) and even if the assignment of the mortgage to Carter had been shown before the notes were offered, which it was not, such assignment would not have carried the notes with it. It is true that the notes'tendered had the name of Thornton on them as endorser, but it was not proven that Thornton had endorsed them, and without such proof Carter’s title was defective, and the notes were properly ruled out.

Though he was the holder of the notes, the proof of Thornton’s endorsement was necessary to give him title. Two things were essential to make the notes relevant as testimony, to wit: That they were the notes secured by the mortgage, and also that they were the property of Carter. The failure of proof on either of these points would have justified the Court in ruling them out, much more the absence of proof on both points.

Bor these reasons, we think the third error not well assigned.

IY, Y and YI. The fourth, fifth and sixth points assigned for error was the admitting the deposition of Johnson, Brown, Griffin and Collier, witnesses for plaintiff. The object of the testimony -was to prove the value of certain lands embraced in Jordan’s mortgage to the Bank, and which had been sold to satisfy air execution in favor of Carter. It is skated in the record that when this testimony was offered in three separate depositions they wore objected to severally by the defendant, without stating any grounds of objection.

This practice is strongly reprobated by the Supreme Court of the United States in the case of Camden vs. Doremus and others, 3 Howard, 515. In delivering their opinion in that case the Court say : — “ After each deposition “ offered in evidence by the plaintiffs to the jury, it is sta- “ ted that to the reading of such deposition the defendant, by “his counsel objected, and that his objection was over- “ ruled.

“ With regard to the manner and the import of this ob- “ jection, we would remark that they were of a kind that “ should not have been tolerated in the Court below, pen- “ ding the trial of the issue before the jury. Upon the of- “ fer of testimony, oral or written, extended and compli- “ cated as it may often prove, it could not be expected, “upon the mere suggestion of an exception, which did not “ obviously cover the competency of the evidence, or point “ to some definite and specific defect in its character, that “ the Court should explore the entire mass for the ascer- “ tainment of defects which the objector himself either “ would not or could not point to their view. It would be “ more-extraordinary still if under the mask of such an objection, or mere hint at objection, a party should be por- “ mitted in an appellate Court to spring upon his adversa- “ ry, defects which it did not appear he ever relied on, “ and which if they had been openly and specifically al- “ leged might have been easily cured. ’Tis impossible “this Court can determine or do more than conjecture, as “ the objection is stated in this.record, -whether it applied “ to form or substance, or how far, in the view of it pre- “ sented to the Court below, if any particular view was so “ presented, the Court may have been warranted in over- “ ruling it»

“ We must consider objections of this character as vague “ and nugatory, and, if entitled to weight anywhere, as “ without weight before an appellate Court.”

The Supreme Court of New York is in perfect agreement with the Supreme Court of the United States upon this point. “ A party,” says Mr. Justice Paige, “ who “objects to evidence or'the competency of witnesses, “ should state specifically the grounds of his objections. “ It is not sufficient to object generally that the evidence “ is illegal, or the witness is incompetent; but the party “ objecting must put his finger upon the very point, to “ apprise the Court and his adversary of the precise objec“jection he intends to make.” Elwood vs. Deifendorf, 5 Barbour’s S. C. Reports, 406, citing 3. Howard, 515, 1 Cowen, 622, 12 Wendall, 504, 1 ib. 418, 1 Hill, 91.

The character of the objection and the mode of making it, in the case before us are precisely the same as those condemned by these two eminent Courts. But there is still another circumstance appearing upon the record which shows still more that (to use the language of the Supreme Court,) “ they should not have been tolerated in the Court below.” Two ofthe depositions were regularly crossed by defendant, and his cross interrogatories have direct reference to the main points sought to be proved, and in the third he objects only to certain of the interrogatories on grounds not relating to the relevancy of the evidence, and at tbe trial he makes his objection general, as in the other cases. By permitting the interrogatories to be put without objection as to the relevancy of the testimony, we consider him to have added much force to the condemnation pronounced by the two Courts we have cited in regard to the vague and nugatory objection made at the trial.

For these reasons chiefly, we think these errors not well assigned, though Ave may add, that the evidence, even if irrelevant, could not have possibly misled the jury. It is a well settled rule that the admission of immaterial testimony cannot be assigned for error by a party, where no injury could have possibly resulted to him from its introduction. As the position will apply to several of the remaining points Avhich we have to examine, it may be proper here to sustain it by authority. In the case of Greenleafs, lessee, vs. Birth, 5 Peters, 135, Judge Story, who delivered the opinion of the Court, said : “ And Ave wish it “ to be understood as a general rule that where there are “ various bills of exceptions filed, according to the local “ practice, if in the progress of the cause the matter of any of “ the exceptions become Avholly immaterial to the merits, “ as they are finally made out at the trial, they are no lon- “ ger assignable as error, however they may have been “ ruled in the Court below. There must be some injury “ to the party to make the matter generally assignable as “ error.”

In 1 Cond. Reports, 263, in the case of Turner vs. Fendall, Judge Marshal, in delivering the opinion of the Court, says : “ Although the testimony rejected Avas proper and “ legal evidence towards establishing the fact, yot the Court “ committed no error in rejecting the testimony, for which “ this judgment ought to he reversed, because the fact does “not appear to have been relevant to the cause under con- “ sideration.”

So in 7 Blackford, 578, in Van Vacter vs. McKillip, it is said, “ The admission of immaterial evidence (the “ merits of the case having been fully tried,) cannot be as- “ signed for error.”

The testimony referred to in the assignment under consideration was rebutting testimony, and as Carter by the ruling out of the notes had failed to show any title under the mortgage, its admission could not possibly have prejudiced him, and is not therefore assignable for error.

YII. The admission of certain bonds executed by Bennett on a claim to the negroes when levied on by Carter under his judgment -on the mortgage, 'is assigued for error in the seventh place.

The assignment on the record connects certain affidavits of Bennett with the bonds, and the affidavits do in fact appear on the record, but it is clearly stated that the plaintiff only offered “ two bonds,” and as clearly that the “ two papers were objected to by defendant. And the record adds that before reading said bonds, plaintiff introduced Joseph Hand — the insertion of the affidavits is therefore a clerical error, caused probably by the affidavits and bonds being written on the same sheet of paper. The exhibition of the bonds could avail nothing to the -injury of Carter, while they were calculated to rebut any presumption of acquiescence by Bennett in Carter’s claim, “ for admissions “ may be implied from the acquiescence of the party.” Greenleaf, 197.

The objection to this ruling of the Court is not sustained.

' YIII. The eighth matter assigned for error is that the Court excluded defendant’s testimony of the clearance of the slaves at the Custom House for New Orleans, and a certificate appended thereto.

It is inqpossible for us to perceive the relevancy of this testimony. If Bennett’s right to the possession of the slaves was better than Carter’s, he had a right to clear them — if it was not better, Ms clearing them did not make it worse.

The error is not well assigned.

IS. It is ninthly assigned that the Court erred in refusing to instruct tlie jury generally upon the points of law arising in the case, when called upon by counsel, and in its construction of the statute of 1848 upon that subject.

The common law principle, as asserted by the defendant’s counsel, is undoubtedly true, that it is the duty of the Judge to give the jury his opinion in matters of law arising upon the evidence.

IVIr. Justice Blackstone says so in those very words. 3 Com., 375. But even if the act of 1848 made no change in the common law, it would not be error for the Judge to omit doing so, when he expressed his readiness to charge upon any point suggested by counsel.

In the case of Pennock et al. vs. Dialogue, the Supreme Court of the United States say : “ It is no ground of rever- “ sal that the Court below omitted to give directions to the “jury upon any points of law which might arise in the “ cause, when it was not requested by either party at the “ trial. It is sufficient for us that the Court has given no “ erroneous directions.

“ If either party deems any point presented by the evidence to be omitted in the charges, it is competent for “ such party to require an opinion of the Court upon that “ point. If he does not, it is a waiver of it. The Court “ cannot be presumed to do more in ordinary eases, than “ to express its opinion upon the ’ question which the par- “ ties themselves have raised at the trial.” 2 Peters, 15.

If the Court omits to charge at all, the remedy of the party, who may deem himself prejudiced by such omission, is, in the first instance, to apply to the Judge, and ask such instruction as he desires. If the Judge refuse, he may then come to an Appellate Court for redress : he cannot come directly to this Court without first seeking what lie desires from the Court below. If the omission to charge .is a wrong at all, it is a wrong alike to both parties and to the jury, and either party 'to make it a wrong against himself, of which he may complain, must point out to the Judge what he wants, and be refused.

Such we‘understand to be the meaning of the Supreme Court in the opinion from which we have quoted. The requirement of the statute of 18-1-8, that the charge, shall be in writing, makes it, in many cases, physically impossible for the Judge to charge upon every point of law, and according to the reasoning of defendant’s counsel, the omission of one point would be error as well as the omission of all. The object of the statute seems to have been to restrain the Judge from intermeddling with the facts.

The word “ only,” in the first section, qualifies the duty of charging-^no new duty is imposed. At most, it is left as it was at common law, though the precise description of the mode of charging in the other section seems, in some degree, to warrant the construction of his Honor, but upon that point we need give no opinion, as we think that, even at common law, there was no error in his ruling.

X, XI. It is assigned in the tenth and eleventh places that the Court erred in refusing the first special instruction asked, and in giving a modified instruction in lieu thereof.

The instruction asked was as follows i

“ That a party cannot be-permitted to gainsay or deny his own solemn oath of record made in this Court, setting up the facts sworn to as a defence in.the action, and when such oath is introduced to the jury it is conclusive against such party making such oath, and the highest possible evidence which the Court gave in substance, with this qualification : “ But he may be permitted to explain it, and to show that it was made in ignorance of his rights, or under a misapprehension in regard to them.”

In the case of Heane vs. Rogers, 9 B. & C., 577, (referred to and quoted in Greenleaf Ev., see 204, note,) Mr, Justice Bayly, in delivering the judgment of the Court, says: — -“There is no doubt but that the express admissions of a party to the suit, or admission implied from his-conduct, are evidence and strong evidence against him,, but we think he is at liberty to prove that such admissions were mistaken or untrue, and is not estopped or concluded by them, unless another person has been induced by them to alter his condition. In such a case the party is esto})pod from disputing their truth with respect to that person, (and those claiming under him,) and that transaction, but as to third parties he is not bound. It is a well- established rule of law that estoppels bind parties and privies, not strangers.” See also numerous authorities referred to by Mr. Greenleaf. In the text of the same authority (Green-leaf, 210,) it is said : — •“ The mere fact that an admission was made under oath, does not seem alone to render it conclusive against the party, but it adds vastly to the weight of testimony, throwing upon him the burden of showing it was a case of clear and innocent mistake.”

In Thomas vs. White, 1 Tyrw. and Grang. 110, cited in a note to the same section, “ the party had sworn positively to matters of fact in his own knowledge, but it was held not conclusive in law against liim, though deserving of much weight with the jury.” The charge of the Judge appears to be in perfect accordance with these well established principles.

12th assignment. The facts upon which the twelfth assignment is based are as follows : The plaintiff in the Court below had filed an affidavit in another cause, setting forth that the slaves sued for had been removed from the State of Georgia by Warren Jordan and Reuben Thornton, with intent to defraud the Georgia Railroad and Banking Company, and others, contrary to the laws of that State) and farther, that Jordan had brought the negroes into Florida in violation of a statute of the Territory.

Defendant asked the Court to instruct the jury that a party cannot claim title to property in any Court of this State, when such claim comes through such facts as were sworn to in the affidavit just mentioned. The Court refused the instruction because “ the law was so mixed with the facts in the instruction asked, that one could not be given without the other.”

The proposition here asserted by the defendant cannot be maintained upon authority.

A voluntary or fraudulent conveyance is perfectly good between the parties and their representatives, and against all persons except creditor’s. Am. L. Cases, 59, citing 5 Binney, 109, and numerous authorities.

The estate becomes at once subject to the debts of the grantee, (2 Halst. R., 173,) and a voluntary conveyance by the fraudulent grantee to the original grantor will be fraudulent against the creditor of the former, (10 Conn., 39.) Again, the creditor of the fraudulent grantor has no title to the property conveyed to the grantee ; — he has a right only to have his debt paid out of the property by a sale under judgment or decree. If he seeks to set aside a conveyance upon the ground of its being fraudulent as to creditors, he must prove himself to be a judgment credit- or. In Angel vs. Draper, 1 Vernon, 399, and Shirly vs. Watts, (3 Atk., 254,) cited by Chief Justice Kent in the case of Wiggins vs. Armstrong, 2 John C. R., 144, it was held that the creditor must have completed his title at law by judgment and execution before he can question the disposition of the debtor’s property. The same doctrine is declared in Balch vs. Westall, 1 P. Williams, 445.

In the case in 2 J. the Chancellor says : “ The reason of the rule seems to be that until the creditor lias established liis title lie has no right to interfere, and it would lead to an unnecessary and perhaps a fruitless and oppressive interruption of the exercise of the debtor’s rights. Unless-he has a certain claim upon the property of the debtor, he has no concern with his frauds.”

Was Carter, then, a judgment creditor of Jordan, and as such entitled to interfere with the disposal of his property ? This depends upon the validity of the proceedings in the suit for foreclosure. The record shows that Carter obtained a judgment at the Fall term against Jordan, but the validity of that judgment it was competent for Bennett to contest. Chief Justice Ruffin, in the case of Hafner vs. Irwin (4 Iredell, 529,) sustaining the view of Chancellor Kent, already quoted, as to the necessity of a judgment,, yet adds a qualification in very significant language : “A creditor must establish his debt by judgment before he can raise the question of the validity of a conveyance made by his debtor. As a general creditor by contract, he has no right to the property nor lien for the immediate satisfaction of his debt. lie must therefore proceed to judgment. The judgment is not conclusive against the party claiming under the deed,for judgments may he fratidulent as well as deeds. It is, therefore, ojien to the grantee in the deed to show that the recovery was by covin or collusion.”

Bennett having the right to impeach this judgment, the inquiring into its validity was a question of fact for the jury. It was only in the event of the judgment being valid that the facts admitted by Bennett in the affidavit were material or conclusive against him, and therefore the Judge might well say, “ that the law was so mixed with the fact in the instruction asked, that one could not be given without the other.” To us who have the record before us, the propriety of the refusal of the instruction is manifest, from a consideration of the facts into which his Honor below declined to look. The judgment of foreclosure was clearly erroneous. There was no notice to Jordan, personally or by publication of the amended petition of Carter, upon which judgment was rendered.

There was no proof of the execution of the mortgage, and none of the debt, except by the admission of Thornton as agent, by a power of attorney clearly insufficient to give him such authority.

Again, in the foreclosure suit, accordingtó a former decision of this Court in Wilson vs. Hayward, 2 Fla. R., 27, Jordan was not the proper party defendant, for lie had parted with his equity of Redemption, and for that reason, in the words of the Court in the case referred to, “ the “ proper course was to go against the purchaser, as the w proper party to the petition, according to the terms of the “ statute itself. The prayer is that the mortgagor and all “ persons claiming or to claim by, through or under him, u be foreclosed, and by the 4th section personal service of “ notice, &c., shall be served upon the mortgagor, or other Liperson having the equity of redemption.”

It is thus apparent that the validity of the judgment being impeachable by Bennett, and depending upon many facts, and yet so necessary to Carter to place him in the relation of a judgment creditor to Jordan, in order to authorize him in interfering with Bennett’s title, though fraudulently acquired, it is apparent, we think, from these considerations, that the Judge was right in refusing the instruction.

But it may be said that Carter was a mortgage creditor5 at least, even if the judgment was void, and that under the authority of Philips vs. Hawkins, 1 Fla. R., 262, he became absolute owner of the mortgaged property upon the condition of the mortgage being forfeited.

Although the mere statement of this objection shows that tbe matter was strictly within the province of the jury, and that the Judge was right in his ruling, yet a brief consideration of the facts proven demonstrates that Carter wras not a mortgage creditor in that sense which would have authorized him to call in question the title of Bennett, even though derived in the manner stated in the affidavit.

lie had given in evidence on the trial an indenture of a mortgage executed by Jordan to the Georgia Bank, which was regularly assigned by the Bank to Carter. It is clear, upon authority, that this alone did not constitute him a creditor by mortgage. In 4 Com., 194, Chancellor Kent says : “ The assignment of the interest of the mortgage in the land without an assignment of the debt is considered to be without meaning or use. This is the general language of Courts of law as well as equity.”

“ The mortgage interest, as distinct from the debt, is not a fit subject for assignment. It has no determinate value. If it should be assigned, the control over the mortgage premises must essentially reside in him who holds the debt!” 4 J. R., 43.

“ A mortgage is a mere incident of the debt, and assignment of the interest in the land without the debt is a nullity.” 2 Cowen, 195.

So in 2 Cowen, 231, it is said, referring to 19 J. R., 325, that the mortgage is a mere incident to the bond, as personal security for the debt, and that an assignment of the interest of the mortgage without an assignment of the debt is considered in law as a nullity.

See upon this point 7 Penn. R., 280, 17 Serg. & Rawles, 400, 5 Cowen, 202, 6 N. Hamp., 205, 11 N. Hamp., 274.

In the 2d Vol. of Leading Cases in Equity, 445, it is said : “ It is a further consequence of the general subordination of the estate in the land to the purposes of the debt, that an assignment of the latter will draw tbe former with it, (citing the first three cases above referred to,) but that the estate in the land cannot be assigned apart from the debt,” citing the other authorities above.

The proofs upon the record show that Carter was the holder and assignee of the mortgage by regular assignment, but this alone, according to some authorities, was a transfer of a naked trust, and according to others, a mere nullity.

There is no evidence that he had an interest in the debt. It is true that at one stage of the trial, he offered certain notes which were ruled out, because they did not appear to be the debt secured by the mortgage. This ruling, for the reasons already adduced in our consideration of the third error, we deem to have been correct, and Carter stood before the Court and jury as the assignee of the mortgage, without an interest in the debt. This was not sufficient to make him a mortgage creditor, or a creditor in any sense of Jordan, and therefore he had no right to complain of the facts set^mt in the affidavit, nor to defend himself even against the bare possession of Bennett. But the affidavit of Bennett states that the negroes were brought into the State of Florida in violation of the statute prohibiting the importation of slaves, under certain circumstances.

And this is relied on as a ground on which Carter justifies the taking and seizing the negroes out of Bennett’s possession, without authority of law, and claiming them as his own.

. The authorities cited by Carter’s counsel go to prove what may be readily conceded, namely, that a contract made in violation of a statute imposing a penalty, but without declaring the contract void, is nevertheless void.

It is not easy to perceive how this principle of law can be invoked by Carter in this case.- Bennett had possession of th.e negroes, and insisted that such possession gave him good title against all except the rightful owner. Carter could not by proving his (Bennett’s) admissions, or by any other evidence, that the negroes had been imported contrary to the statute, justify the taking them from Bennett’s possession, without authority of law. Bennett’s violation of law did not confer any title upon Carter. Carter having failed to prove himself the rightful owner, Bennett’s title, founded upon possession, must prevail:

The instruction, therefore, was properly refused, both because the naked legal proposition asserted is wrong, and also according to the ruling of the Judge certain facts would have to be proved before Carter could be placed in such relation to Jordan as to have any concern with his frauds.

XIII. It is assigned in the thirteenth place for error that the third instruction asked was qualified by the Judge below. The third instruction asked was in these words: “ That no man can claim title to property sworn by himself “ to have been acquired by a direct violation of the statute “ of frauds, as against the parties intended to be defraud- “ edwhich the Court altered by adding thereto the words, “ unless he shows that he made such oath under a “ misapprehension as to the law, or the facts, or the evil which instruction, so altered, he gave.

For reasons already given, and supported by ample authority, it is evident that the instruction .asked could not have been properly given. A creditor must establish his debt by judgment before he can raise the question of the validity of a conveyance made by his debtor. This is the concurrent import of numerous authorities we have heretofore cited, and is too well settled to admit of question.

Even if the instruction asked was not obnoxious to this objection, the qualification of the Judge was altogether proper, for the reasons we‘ have adduced under the tenth and eleventh branches of the assignment.

XIY. It is alleged in the fourteenth place that the Couft erred in adding the qualification (“ or other consideration”) to defendant’s fifth instruction, there being no evidence to authorize it, and the bills of sale purporting to be for money-. The instruction asked was as follows : That a vol-u untary bill of sale in which no money is paid, carries no (C title against prior creditors, especially mortgage credit- “ ors, and even if another person should buy for money, with “ notice of the person holding under such bill of sale, such new party can claim no title against such prior creditors “ or mortgagees.” This instruction was given after inserting the words, “■ or other valuable consideration given,” after the words 11 no money is paid.”

This qualification seems to us to be very harmless. We have shown that prior creditors simply, not being judgment creditors, cannot impeach a voluntary conveyance, and as to mortgage creditors, we cannot perceive how the qualification impairs the force of the instruction as asked for. And besides, we may remark here, what applies to many of these numerous exceptions, that the frequent allusions to Carter as a mortgage creditor are not warranted by the law of the facts proved. The ruling of the Court on the twelfth error assigned, with the reasons and authority there presented, establish that the assignee of a mortgage simply is no mortgage creditor.

There was an entire absence of testimony before the jury to prove that Carter was the assignee of the mortgage debt, and not being such, he was in no sense a creditor of Jordan. The matter of this instruction, therefore, had no reference to him, and it might have been properly refused altogether.

XY„ It is alleged in the fifteenth place for error that the Court refused the defendant’s ninth instruction, which is in these words : “ That the title to the sixteen negroes “ mentioned in the action of trover in Georgia was de- “ cided in that case to be in Farish Carter, and the jury Ci cannot reverse or review that decision, and must throw “ that number of negroes from their consideration.” The Court refused this, “ because involving facts upon which “ the Court is prohibited from instructing the jury.”

The exemplification of a record of another State is evidence of a very high order, but still it is evidence for the jury, involving facts, and in the case before us the identity of the negroes mentioned in this record with the negroes sued for by Bennett, was a very material fact, and necessary to be proved in order to give any value to the record as, testimony for the defendant. Well, therefore, might the Judge hesitate to tell the jury that they must throw sixteen negroes from their consideration. He left that properly and appropriately for them to decide, upon the facts before them. But however erroneous this refusal might have been, why should the defendant complain, since, at an antecedent stage of the trial, and before the case was argued, to the jury, the plaintiff’s counsel, as it is stated in the record, “ abandoned his suit to the negroes in the declara- “ tion mentioned, proved to have been re-captured by “ Bennett from Long’s plantation — same being included in “ the Columbus judgment, Carter vs. Bennett.”

It seems to be at least a waste of the time both of the Court below and of this Court, to have asked for the instruction there, and to have assigned the refusal for error here, under the circumstances we have just mentioned.

XVT. It is said in the sixteenth place that the Court erred in refusing the thirteenth instruction asked by defendant. ■ The instruction asked for was as follows : “ That u the record in the case of Peninah W. Thomas vs. Farish “ Carter, being in evidence before the jury, and comment- “ ed on by plaintiff, is conclusive as to any subject matter “ decreed upon in said record, and if the record shows that “ a foreclosure has been had in Georgia on the personal “ property by* said mortgage conveyed, on the fifth of Ju- “ ly, 1842, the title to the personal property became abso- “ lute in the mortgagee — an action of trover for said per- “ sonal property subsequently commenced by the mortga- “ gor, or any person claiming by, through, or under him, “ cannot be maintained.” It was refused by the Court because it was not conclusive against any but those who were parties or privies to the record.

This exception seems to have been abandoned by defendant’s counsel. It is certainly untenable. Mr. Greenleaf tells us, “ it is a most obvious principle of justice that no “ man ought to be bound by proceedings to which he was “ a stranger.” Greenleaf on Ev., 522.

And persons who have no right to make defence, or to control the proceedings, and to appeal from the-judgment —to adduce testimony and to cross-examine the witnesses adduced on the other side, are regarded as strangers to the cause. Ibid, 523.

XVII. It is assigned as the lfth error that the Court refused the 14th instruction asked for without qualification. The instruction asked was that “ a party whose title is <£ tainted with fraud, cannot rely upon such title to object ££ to the regularity of a decree rendered in favor of the ££ creditor against the debtor, who did so fraudulently part ££ with his title, and this will apply in the case of a fore- ££ closure of mortgage by mortgagee against mortgagor, ££ where the decree is attacked by any one claiming title “ under a mortgagor who has fraudulently conveyed his £i equity, of redemption to hinder and delay the mortgau geewhich the Court refused, but gave with this .quali* fication : “ Such person being cognizant of the fraud at the time of his purchase.”

Ve have already said, upon the authority of Chief Justice Ruffin, that judgments may be fraudulent as well as deeds, and that they are open to the grantee in a fraudulent deed to show fraud or irregularity if he can. And “ it is a general rule that a decree in Equity shall not, any “ more than a verdict or judgment at law, either conclude “ or in any way prejudice the rights of those who are not “ parties to the suit.” 20 Wendall, 262.

The Judge, by his qualification, confines this privilege to persons not cognizant of the fraud at the time of their purchase, and if the positions cited from the North Carolina and New York Courts be true, the charge of his Hon- or was more favorable to the defendant than he wvas entitled to.

The cases referred to by defendant’s counsel in the Florida Reports, do not contradict these conclusions. In 2 Florida Rep., 518, it is said : “Fraud will vitiate any, even the “ most solemn transactions, and an asserted title to prop- “ erty founded upon it is utterly null,” and reference is made to 15 Peters and 2 Howard, and the Court adds : “No doubt a record may be affected and even vitiated by “ fraud.”

All this is in perfect harmony with the conclusions which we have elaborated elsewhere. Counsel do not seem to distinguish between fraud and fraudulent conveyances. The first vitiates all transactions, and the latter are fraudulent and void only as against certain specified parties.

Carter has never brought himself (as we have clearly shown,) among those specified parties, and therefore Rennett’s title, however fraudulent it may be to others, is not so as to him.

XVIII. The eighteenth error assigned is that the Court refused the sixteenth instruction as written, but gave it with the additional words in brackets below, viz :

“In cases of foreclosure at common law, under our stat- “ ute, any person claiming by, through or under amortgagor, “ can come in and state his objections, under oath, show- “ ing cause against foreclosure of the mortgage proper to which the Court added, [provided, he is served with legal notice, eitherpersonally or by advertisement.]

Ilis Honor clearly meant, wre suppose, by this ruling, that no party can be affected by a foreclosure under the statute, unless he is served with legal notice, which is too obviously true to require comment. But if we mistake the intention of the Court, and his proposition is meant to be understood literally, still it wras but a qualification, either with or'without which the instruction asked was a mere abstract proposition, having no reference to the facts of the . case. The most that is asserted is that Bennett might have come in without notice — it is not alleged that he w-as under obligation to do so.

The fact is that he had no notice, and w-as not therefore concluded by the judgment, however true or false the proposition may be as laid down by the defendant in his instruction.

¥e think, therefore, the error is not well assigned.

XIX. The nineteenth point assigned for error is that the Court erred in refusing to give the third clause of defendant’s eighteenth instruction.

This clause of the instruction asked is in these words : “ That no such property or possession can be maintained “ against a prior creditor of the vendor, Thornton or Jor- “ dan, unless such property or possession was obtained “ bona fidewhich w-as refused by the Court because it was “ mixed with fact.”

His Honor might have refused the instruction for a still better reason. The principles we liave established, showing the necessity of a creditor obtaining a judgment before he has a right to impeach a conveyance, apply with all their force in resistance to the position here assumed by defendant. Nay, more, a judgment creditor, as such simply, has no title to the debtor’s property till it is consummated by the execution of the judgment. It is surely not necessary to quote authority to prove that “ in trover posses- “ sion, whether rightfully or wrongfully obtained, is a suf- “ ficient title in the plaintiff as against a mere stranger.” 10 Vt., 208, 11 Vt., 351.

Ye have, in the progress of this opinion, exhausted argument to show that Carter, so far as the record informs us, was a stranger, and that it was perfectly immaterial to him what was the nature of Bennett’s title or possession, if any title or possession at all was proved.

XX. The twentieth error assigned is that the Couit erred in refusing defendant’s motion for a new trial.

The motion in this case is based upon tbe allegation that there was error both in the ruling of the Court upon the law and in the finding of the jury upon the facts of the case. So far as the questions of law are concerned, they have been presented to the consideration of this Court in every variety of aspect. The skill and ingenuity of the eminent counsel having charge of the case, seem to have been tasked to the uttermost in exhibiting every possible question in every possible phase, and the Court must take some credit to itself for the patience with which it has pursued the multiform enquiry which has been asked at its hands.

Has the appellant a right to demand of us to pass upon the facts ? Have we. a right to control the discretion of the Court below in relation to its granting or refusing a .a now trial ?

The question is not a new one before the appellate tribunals in Florida ; for it was presented to the late Court of Appeals, in the case of the United States vs. Jerrison & Foster, (not reported,) and decided adversely to the application. We see no reason to justify us in departing from that decision.

Although we have given to the subject as much thought and research as its importance seems to merit, we feel constrained, by the unusual length to which this opinion has been unavoidably protracted, to allude very briefly to the considerations which have influenced our judgments. The whole frame-work of our judicial structure is derived from our English forefathers, and the practice of reviewing the decisions of a Court, upon motions for a new trial, is wholly unknown to the judicial system of that country. Such also is the case with the Courts of the United States, while the Courts of the several States seem to be about equally divided upon the question. The weight of authority, therefore, is clearly against the exercise of the right of controlling the discretion of the inferior Courts on the subject of new trials.

When we consider the expediency of asserting such a right, we are at once met by the enquiry whether we are as competent to judge of the weight of evidence as the Court .and jury before whom it is given ? One of the Courts which accord the right to an Appellate Court of reviewing the decisions of inferior Courts on this point, says : “ Great deference is due to the judgment of the legitimate “ triers of matters of fact.” “ That Court has opportuni- “ ties greatly superior to those enjoyed by this Court, of “ determining whether the verdict is against the weight of “ testimony.” (7 Missouri, 221.)

In this admission, we conceive, rests the whole argument against the expediency of the exercise of this power. Every one at all familiar with the incidents of a jury trial, imist admit the impossibility of conveying to an appellate tribunal a perfect transcript of the evidence given to a jury. The tongue of the witness is not the only organ for conveying testimony to the jury; but yet it is only the words of a witness that can be transmitted to the reviewing Court, while the story that is told by the manner, by the tone, and by the eye of the witness, must be lost to all but those to whom it is told. The testimony of one witness, given with calm self-possession, an erect front, and an unhesitating accent, imports verity as strongly as a record, while the confusion, the hesitation, and trembling of another, will contradict to the eye what his faltering tongue has uttered to the ear. Yet the testimony of each will stand alike before the Court of review.

For this reason mainly, and for others which we need not adduce, we deem it our duty to adhere to the practice, sanctioned by the most venerable authorities, of leaving the question of granting or refusing motions for new trials to the Judge who has had the privilege of hearing the evidence.

The points assigned for error, subsequent to the twentieth, were not noticed in the argument, and are understood to have been abandoned by the defendant. But as they are upon the record, it is our duty to pass upon them, which we shall do in the briefest possible terms.

■ XXI. The twenty-first point denies the jurisdiction of the Court, which question we have disposed of in our consideration of the first and second points.

XXII, XXIII. The twenty-second and twenty-third points deny the right of Judge Douglas, who was the Judge of the Eastern Circuit, to sit in the case, which was tried in the Western Circuit.

The State Constitution provides, in the 7th sec. of the 5th article, “That the Judges of the several Circuit Courts ‘i may hold Courts for each other.”

XXIV. The twenty-fourth point seems to have reference to the same point, and the assignment is, therefore, not sustained.

XXV. The twenty-fifth j>oint presents an objection to the verdict, upon the ground of excessive damages. This was a matter proper to be brought to the attention of the Court below on a motion for a new trial. We have nothing to do with it.

XXVI. The twenty-sixth point is obnoxious to the same objection.

XXVII. XXVIII. The twenty-seventh and twenty-eighth points are mere recapitulations of others already decided upon.

The true elements of this controversy,, when divested of the multitudinous wrappings in which it has been presented to our notice, (the printed record mating a well sized octavo volume,) are very few and very simple. Bennett was in possession of the slaves when they were taken from him by Carter, and converted by Carter to his own use. Whether Bennett’s'possession was rightful or not, Carter had no right to divest him of it manu forti, .without showing that he was a judgment creditor or a mortgage creditor of Jordan’s.. He failed to do both, and stands, before the Court simply as a stranger, intermeddling without authority with the possession of another.

Having reviewed in detail the many complicated questions presented upon the record of this case, we conclude-by saying, we find no such error in the proceedings in the Court-below as to require us to set aside the judgment, and we shall accordingly direct the judgment to be affirmed. with CQfttK

Note et the Reporter. — In the 8th line of the Head Notes, on page 2S3, instead of "former,” read latter.

Let the judgment be affirmed, with costs, and the caso remanded to the Court below.