Heirs of Holman v. Bank of Norfolk

12 Ala. 369

• Court: Supreme Court of Alabama
• Decided: June 15, 1847
• Status: Published

Opinion

ORMOND, J.

Perhaps the best mode of considering this complicated case, is, by first disposing of those questions, which are preliminary to the main question, before proceeding to the discussion of the merits of the case. We will, therefore, first dispose of the questions arising upon the rejection of the testimony of the defendants, and the refusal to reject that of the complainant.

The bill is filed by the Bank of Norfolk, to foreclose a mortgage on certain lands in the city of Mobile, executed by one Charles Brown ; the title to one half of which, it is alledged in the bill, was'obtained by Brown in the following manner: “ That after the death of the said Oliver Holman, his widow took out letters of administration upon his estate, and by authority of an act of the legislature of the State of Alabama, the said administratrix eonveyed by deed, to said Charles Brown, all the interest of said Oliver, remaining in the said estate, for and in consideration of the sum of $>-, a copy of which deed is filed, marked exhibit B.”

Oliver Holman, by his answer, admits that Brown purchased under color of the act mentioned, but denies knowing whether the bond which the act required to be given, preparatory to a sale, was ever executed by Littlefield &. Davenport.

The act of the Legislature referred to, was passed on the 31st December, 1823, and is as follows:

Be it enacted,fyc. That the administratrix of the late Oliver Holman, resident in the city, of Boston, in the State of Massachusetts, be and she is hereby authorized, to sell by Nathaniel Littlefield, and Gorham Davenport, her attorneys in fact, the real estate of which the said Oliver Holman died seized in the city of Mobile, on such terms, and in such manner, as may be deemed most advantageous to the estate of the said deceased.

2. That the said administratrix be, and she is hereby authorized, by her attorneys aforesaid, on the sale of said estate, to make the purchaser, or purchasers, as the case may be, a legal conveyance of the same, which shall be as binding as if the same had been made by the said Oliver Holman in his lifetime.

3. That Nathaniel Littlefield and Gorham Davenport, before the sale of the estate aforesaid, shall enter into bond, with sufficient security, payable to the judge of the county court of Mobile county, for the true and faithful payment of the money arising from the sale of said estate, into the hands of the administratrix thereof, to be appropriated to the payment of the debts due by the decedent.

At the hearing, the complainants produced a bond, in the penal sum of $30,000, purporting to be the bond of Little-field, Davenport, and others, and to have been executed in compliance with the preceding act, previous to the sale of the land of Holman’s estate, which the defendant objected to, because there was no allegation in the bill that such a bond was made.

It is certainly a cardinal rule in equity pleading, that the complainant should alledge such facts, as show a title in himself; if he does not, the bill is demurrable. The facts must beso stated, in the language of Judge Story, that the court may infer a title in the party. [Eq. Pl. 556, § 730.] It is not however necessary that any thing more than a prima fade title be averred. Thus, it is sufficient to rely on a feoffment, without alledging livery of seizin; or a bargain and sale, without averring an enrolment. [Coop. P. 5; Harrison v. Hogg, 2 Vesey, jr. 327.]

The bill alledges the execution of the mortgage by Brown, who, it is alledged, was seized, or pretended to be seized, in fee, of the mortgaged estate. This was doubtless a sufficient allegation of title in Brown, if the entire purpose of the bill had been to foreclose the mortgage. It had another object. Brown, though in possession of the entire estate, had a legal title to but an undivided moiety, and for the residue, claimed title under a covenant from O. Holman, deceased, to make title, and for this portion of the land, the bill seeks a specific performance from the heirs of Holman. In relation to the other half, it is alledged, that Brown held the dfeed of the administratrix, by" virtue of a sale made under the authority of an act of the legislature of this State. In our opinion, this allegation was sufficient. We cannot presume that the sale was not.made in conformity to the act, but until the regularity of the sale is. questioned, will presume that it was conducted in the manner directed by the act. And this being put in issue by the heirs, it was clearly competent for the complainant, to prove the execution of the bond, which the act made a pre-requisite to the sale. The validity of the law, will be hereafter considered.

The propriety of the exclusion of the defendant’s testimony, will be next considered.

Most of the testimony thus excluded, was of defendants to the bill, whose testimony was directed, on motion, to be taken by the chancellor. The order to examine a co-defendant, as a witness, does not ascertain his competency to testify, and if, at the hearing, it appears that he has an interest, his testimony will be rejected. [Whipple v. Lansing, 3 Johns. C. 612; Murray v. Shadwell, 2 Ves. & B. 401.]

The deposition.of Roper was properly rejected, as he had a direct interest in the event of the suit. He was a purchaser of part of the land from Copeland, under an assurance, as he states, that the mortgage of the bank was satisfied ; and as a decree against the bank, either because of the invalidity of the mortgage, or discharge of the mortgage debt, would exonerate his property from this incumbrance, he was clearly an incompetent witness for the defendants.

The deposition of Morrell was also properly rejected. He was also a purchaser from Copeland, with notice of the mortgage, and in his answer denies having any interest in the controversy, because, as he states, he had sold, and conveyed the land as purchased, to several persons whom he names, by quit-claim deeds, copies of which he offers to produce. He further proceeds to answer the entire bil; insists that the mortgage debt was paid ; charges the bank with collusion with Copeland ; insists on proof of all the allegations of the bill, and demurs to so much of it as seeks a specific perform-anee. A party improperly made a defendant, and who wishes to be discharged without the paymeut of cost, must not only disclaim all interest in the controversy, he must also abstain from engaging in the defence of the suit. By so doing, he makes himself a party to it, and although if not interested, he must be dismissed, he will not be entitled to costs. The defence made by this witness, is as active, and energetic, as that of any other defendant to the suit, and he had therefore a direct interest to cast the costs upon the plaintiff, which is such an interest as would disqualify him from testifying for his co-defendants. [Markham v. Smyth, 11 Price, 126; Wooley v. Brownhill, 13 Id. 600.]

Again, he is, as a purchaser from Copeland with notice of the mortgage, directly interested in the event of the suit. From this interest he seeks to absolve himself, by alledging a .sale without warranty of title ; but being prima facie incompetent from this cause, his competency should have been shown at the hearing, by the production of the deeds, or other satisfactory proofs of their contents. It has been already observed, that the competency of a defendant, examined as a witness for his co-defendants, must be shown, if objected to at the hearing. This precise objection was taken, and not removed, he therefore, for this cause, as well as the preceding, appears on the record as an interested witness.

Mrs. Holman, the widow of O. Holman, deceased, was made a défendant, and answered, disclaiming all interest, and praying to be dismissed. Her testimony was also taken by her co-defendants, and in our opinion was, so far as the objection went, correctly rejected by the chancellor.

Her son O. Holman, in his answer, alledges, that the conveyance of the administratrix to Brown, was induced by the persuasions of the latter, to enable him the better, to settle up the affairs of the firm, of which her husband and Brown were the partners. That after the conveyance was thus made, Brown borrowed $20,000, to enable him to improve the property, and executed his bond with condition, when this sum was discharged by the rent, to reconvey to her and her family. Without now stopping to inquire, what effect a secret trust of this kind, could exert upon the plaintiff, lending its money to one having the legal title, upon the security of the property, it is perfectly apparent, the administratrix was directly interested to maintain this defence, as its success would reinvest her and her children, with the title she had parted with to Brown, and defeat the mortgage.

Certain portions of the interrogatories, and answers of Bar-ritt Ames, were also objected to, and rejected by the chancellor. The design of the third question, is to prove the hand writing of Brown, to a letter addressed to G. Davenport, in Mobile, in relation to his property in Mobile, and stating, that he had, with the consent of the Bank of Norfolk, appointed Mr. Ames as his agent in Mobile, &c. It is very clear, that no declaration of Brown, can affect the bank ; it is as to the bank mere hearsay. The fourth, fifth, and sixth, relate to conversations between Brown and Ames, by which the latter was directed to transmit to Copeland, the rents and proceeds of the estate in Mobile, and informing him, that Copeland was the agent of the bank, to which Copeland assented, and that he remitted to Copeland at different times, upwards of $28,000, as the agent of the Bank of Norfolk. That he considered Copeland as the agent of the bank, and made the remittances to him on the part of Brown, in that character.

The evident design of this testimony, is, to establish the fact that this sum of money was paid to Copeland as the agent of the bank, in extinguishment of the mortgage. But to make Copeland the agent of the bank, its assent was necessary. Neither the declaration of Brown, or the assent of Copeland to receive the money as the agent of the bank, has any tendency to prove, that the bank knew, or assented to the arrangement, between Brown and Copeland. Nor is there any thing in the fact, that Copeland was a director of the bank, from which such assent can be inferred. These answers were therefore properly excluded, as it is not shown that the bank was privy to any of these conversations, or arrangements, or in any manner gave its consent to the appointment of Copeland as its agent.

The agreement entered into by counsel, in another suit,, upon, the answer of the Bank of Norfolk, to a bill filed by G. Davenport, against 'Brown and others, appears to us to be wholly irrelevant, and was properly excluded. That portion of the agreement relied on. reads thus: “ And it is agreed between the attorneys to this suit, that no objection shall be made, that Copeland has hitherto been permitted to represent our claimwhich is signed by the counsel for the complainants, and the bank. The purpose of offeririg this, seems to be, to establish the fact, that Copeland had represented the bank in the management of that suit, from that to infer the fact, of Copeland’s agency, or interest in the claim. Assuming the claim spoken of, to be the mortgage now under consideration, and that in the suit, Copeland was permitted to represent the bank, and control the management of the suit, this fact, if important to be proved in this cause, could not be established by the admission of the counsel of the. bank, in a previous cause, with which this has no connection. As the representatives of their clients, counsel have doubtless power to admit the existence of the facts; but such admission, as proof of the existence of the fact, is available only in that particular case. It would be a most alarming doctrine, that an admission made by counsel, in the progress of a cause,, was proof of the fact so admitted, through all future time. The authority of counsel is confined to the case in which he' is employed; he has no power to bind his client, beyond the effect of the admission, in the particular case in which it was made.

The complainant also objected to the reading by the defendant of the depositions, of Simmons, Hickling, and Whiting, taken from the files of another cause, and they were rejected by the court. Depositions taken between the same-parties in another suit, where the same point is in issue, may be given in evidence. [Ritchie & Co. v. Lyne, 1 Call, 489; Rowe v. Smith, Id. 487; Arderry v. Commonwealth, 3 J. J. M. 183; Lawrence v. Hunt, 10 Wend. 80; Boardman v. Reed, 6 Peters, 328.] The precise objection was taken to-the reading of these depositions, that they were not taken in a case between the same parties, and it does not appear from the record that the difficulty was removed. There is, therefore, nothing shown upon the record making these depositions evidence of the facts there stated ; and if offered for that purpose, they were properly rejected. There is one purpose, however, for which they were competent, to impeach the credibility of these witnesses, by showing, that they deposed' differently at another time. And as these witnesses had been examined by the complainant in this cause, and cross ex--amined by the defendants, that was doubtless the purpose for which they were introduced: such also appears to have been the understanding of the complainants, from the exception taken. When the object is not to establish the facts stated by a witness, but to impeach his credit, a deposition made by him, between any parties, is evidence to contradict him, but not to support his testimony. [1 Stark. Ev. 276; Holdroyd’s case, 2 Russ. & R. C. C. 89.] And in such a case, where part only has been read, the opposite party may read the entire deposition, for the purpose of showing his consistency.. [Temperly v. Scott, 3 C. & P. 341.]

It is objected, that the attention of the witnesses should have been called to these statements previously made, that they might have an opportunity to explain them, but we can find no such qualification annexed to the right of introducing a previous deposition, for the purpose of discrediting a witness. The rule here adverted to, is the one settled in the Qmeen’s case, 2 B. & B. 313, and which has been frequently acted on, and affirmed in this court. The rule, by the very terms in which it is proposed, applies to the oral examination of witnesses, proposed to be impeached, by acts done, or declarations made, relating .to the cause. It cannot, in the nature of things, apply to such a case as this, because, until the last deposition is taken, it cannot be known that there will be any discrepancy between- them. These depositions must, therefore, be looked to, so far as they contradict the statements last made; and this closes our examination of this part of the case, in which we have endeavored to be brief, even at the expense of perspicuity.

It is further urged, that the bill is multifarious, because it seeks a specific performance against the heirs of Holman for a moiety of the land, and aforeclosure of the mortgage upon the entire tract against all the defendants. This is a common objection, and has been frequently passed on by this court.

It is perfectly obvious that all these defendants have a common interest in the subject in litigation, though they claim under distinct titles — the purchasers from Brown, and Copeland, and the heirs of Holman, being alike interested in opposing a foreclosure of the mortgage, and this, it is said, is sufficient to justify their being united in the same suit. [Story’s Eq. Pl. § 285, and cases cited; see also the At. Gen. v. Craddock, 3 Mylne & Craig, 85; and the Atto. Gen. v. Mayor of Poole, 4 Id. 17, as strongly in point.]

But this case is peculiar, and although it maybe brought within the influence of the cases cited, and others determined by this court, to be found on the brief of counsel, yet it appears more distinctly to belong to other acknowledged heads-of chancery jurisdiction. If a suit were prosecuted against the heirs of Holman alone, for a specific performance of the covenant of their ancestor, and a decree obtained against them, another suit would still be necessary for the foreclosure of the mortgage. Therefore, to prevent a multiplicity of suits, and the delay and expense consequent thereon, there being no incompatibility in the defence of the defendants, but all having a common interest, in resisting the decree sought to be maintained, they may be united in one suit. If the bill was for a foreclosure of the mortgage merely, omitting the heirs of Holman, and consequently without ascertaining their liability to perform the contract of their ancestor, the complainant might be prejudiced by the sale of the property under such circumstances; but the defendants would certainly be injured by the sale, with such a cloud impending over the title. It is not the habit of courts of equity, to sell a doubtful title, where it has the power to clear it up, and ascertain its true character; and hence the rule, that all parties claiming an interest, and within the jurisdiction of the court, must be made parties, that there may be an end of the litigation. This case falls fully within this principle.

Again, the heirs of Holman assert the invalidity of the act of the legislature, under which Brown the mortgagor, acquired title to one half the property, and have in fact as such heirs, acquired possession of part of the mortgaged estate. They were, therefore, if not necessary, at least proper parties, as they asserted a title hostile to the mortgagee, in common with the other defendants. Upon all these grounds, then. we are clear in the opinion, that they were properly joined with the other defendants in the bill.

It is also contended, that the covenant entered into by O. Holman, deceased, with Brown, in 1821, for the conveyance of one half the estate, ought not to be enforced against his heirs, because the price to be paid for the land not appearing in the contract, it is void under the statute of frauds; and if this objection is not tenable, then a court of equity will not compel the heirs specially to perform the contract, as it is not shown to be founded upon adequate consideration.

The statute of frauds requires all agreements for the sale of land to be in writing, and signed by the party sought to be charged, and certainly, as contended, the price to be paid, is quite as important as any other term of the contract; and if it is not shown by the contract, it cannot be supplied by parol testimony. But it is a mistake to consider this covenant a contract for the sale of land. It is an unconditional promise to convey the land to Brown, at a time stipulated; ■and as it does not require any act to be done by Brown, as a condition upon which the conveyance is to be made, it includes, by necessary implication, at least prima facie, an admission that the consideration, whatever it was, which was the inducement to the promise, had been paid or performed by Brown. It is an admission that a sale has been made, and not a contract, professing to recite the terms of a sale, and is not therefore within either the letter, or spirit and design of the statute of frauds ; the design of which being to prevent parol proof of the sale of land, requires all the constituents of the contract to be in writing, and signed by the party against whom it is attempted to be enforced. But why require the terms of a contract to be stated, which the party admits in writing, under his seal, he is bound to consummate by the execution of a deed ? The object of the statute is to prevent fraud and perjury, but here there is no danger of either, as the party to be charged has, by his obligation, defined the precise extent of his liability, and has not made it dependent on any act to be performed by the other party. That this conclusion is correct, will be obvious, if we consider what would have been the effect of this bond, if it had contained a penalty. In that event it is clear, that the obligee could have maintained an action at law, and have recovered the penalty, upon the refusal of the obligor to convey the land ; and that the only breach necessary to be assigned, would be the refusal to convey. The legal effect of the bond is not changed by the omission to insert a penalty; that only affects the damages, and does not touch •the construction of the instrument, which must be the same in equity as at law.

This conclusion does not however determine the question, as it still remains to be considered, whether it is such a contract as a court of equity will enforce the performance of. In Gould v. Womack and wife, 2 Ala. R. 83, we considered very fully the power of chancery to decree a specific performance, and we there held, that the jurisdiction was not compulsory — that it was an appeal to the extraordinary power of the court, and that it would not compel the performance of a contract, unless just and reasonable in all its parts, and founded on adequate consideration. The record, though exceedingly voluminous, affords no aid in determining the circumstances under which this agreement was made, or what was the consideration, if any, which was the inducement to the promise — whether it was a sum of money agreed to be paid, actually paid, or merely voluntary. All that we know of.it is, that the covenant was made by Holman; that Brown went into possession of the property, claiming it as his own, borrowing money upon, and finally selling and transferring it by a deed in fee.

As this court cannot determine this question, without a knowledge of the facts, it becomes necessary to inquire upon whom does the burthen of proof lie to establish them, and -what in the present condition of the cause, are the legal inferences from the record.

This is properly a question of pleading, for if it is necessary that the complainant, to entitle himself to a specific performance, should show that .the consideration was paid, and that it was such as to call into exercise the extraordinary power .of the court, it was certainly necessary that he should have made these allegations in his bill, and such is the argument in this court. Upon the other side, it is contended, that although the bond does not state a consideration, it imports one at common law, and tbat independent of this, the onus of proving a want, or inadequacy of consideration, is cast upon the defendant by the act of 1811. [Clay’s Dig, 340, § 152-3.] “ Whenever suit shall be commenced in

any of the courts, founded on any writing, whether the same be under seal, or not, the court before whom the same is depending, shall receive such writing as evidence of the debt, or duty, for which it was given; and it shall not be lawful for the defendant to deny the execution of such writing, unless it be by plea supported by affidavit. Whensoever any suit is depending in any of the courts, founded on any writing under the seal of the person to be charged, then it shall be lawful for the defendant, by a special plea, to impeach, or go into the consideration of such bond, in the same manner as if it had not been sealed.” In the construction of the first branch of this statute, it has been held, that every written promise, whether under seal or not, for the payment of money, or the performance of a duty, is prima facie evidence of a consideration, and that it devolved on the defendant to show there was none. [Phillips v. Scoggins, 1 S. & P. 28; Chamberlaine v. Darrington, 4 Porter, 515; Click v. McAfee, 7 Id. 62; Young v. Foster, Id. 420.]

At common law, a writing obligatory, imported in itself, that it was founded upon a consideration ; and as any consideration was sufficient to sustain the promise, the common law presumption went no further, than the exigency demanded — that there was a consideration, not that it was full, or adequate. Courts of equity have, however, always exercised the right of inquiring into the consideration of sealed instruments, and it might perhaps be well doubted, whether it would decree a specific performance upon the common law presumption, as the consideration might be grossly inadequate, or in fact be entirely voluntary. But we are relieved •rom the consideration of this aspect of the case, because, in our judgment, this question is decisively settled by the statute previously cited, and the adjudications upon it. The statute did not merely plaee bonds and unsealed instruments upon the same footing, in regard to pleading, it also promulgated a rule of evidence, applicable alike to sealed and unseald instruments, by which the instrument, after its consideration was put in issue by a plea, was made prima facie evidence of the “debt, or duty,” and'the burthen of proving the contrary, cast upon the defendant. In the .case last cited, Young v. Foster, supra, it is said, the statute “has the effect of making the instrument sued on prima facie evidence of the debt, or duty, it imports to be given for — that the consideration of such writing can only be put in issue by a special plea, and that the burthen of proof will then be on the pleader.” This is conclusive. The instrument is presumptive evidence that the obligor was bound to make a title to the land, and until this presumption is repelled by proof, effect must be given to it, or the statute becomes a dead letter, as its whole purpose was to change the common law rule, which requires the plaintiff to support his case by proof of a consideration.

The cases we have cited, were it is true suits at law, but the rules of evidence are the same at law and in equity. It would be most unreasonable to suppose, that the statute was not intended to apply to suits in equity, if there was nothing-in the statute expressly including such suits. But its language is, that such shall be the effect of written instruments when a suit is depending “in any of the courts,” of the State; courts of equity, are therefore within the letter of the statute.

From these considerations, it follows, that until the covenant is impeached by proof, that it was a voluntary act without consideration, or that the consideration was grossly inadequate, or some fact, or circumstance shown, which would prevent this court from interfering between the parties, and leave them to their legal remedy, the complainant has the right to call on the heirs of 0. Holman to make the conveyance, which it would be the duty of their ancestor to make, were he now alive. The heirs, as such, are in truth mere volunteers, and invested with no right, which their ancestor did not possess, and can therefore urge no objection which he could not make.

We come now to the consideration of that, which was probably considered the principal question in the cause — the validity of the sale made under the act of the legislature. This act it is strenuously urged, is unconstitutional, because, as is alledged, it was an unlawful interference with the vested rights of the heirs of 0. Holman. The act has been already cited at length. It authorizes the administratrix, resident in Massachusetts, by certain persons, her attorneys in this State, to sell the real estate of her intestate in Mobile, for the purpose of paying the debts of the deceased. This is a question of great delicacy, and magnitude, involving as it does, an inquiry into the legality of an act of a co-ordinate branch of the government — the importance of this particular-case, and the number of titles depending upon Ihe legality of similar legislation, demanded, and we have given to it, all the reflection, and examination, the recess of the court has enabled us to bestow upon it.

To a correct understanding of the question, it becomes necessary to define the terms, “ vested rights,” and thus to ascertain what rights are vested, in such a manner that they are placed beyond the pale of legislative control. In the United States, certain political rights are conceded to be retained by the people, and the power to interfere with, or in any manner to impair them, not delegated to any department of the government. Some of the most obvious of these, are enumerated in the bill of rights of this State. These are vested rights, the inheritance of every American citizen. _ We have mentioned this class of rights, to prevent confusion, and to distinguish them from those rights, which belong to all the people of the States, as members of the body politic. These, are not like those just mentioned, inherent in man, as a member of the social compact, but are those rights which are alike secured to all the people, by the existing law of the State; which being derived from the authority of the people, and expressed by the legislative will, may be changed, modified, or altogether abrogated, by the same power which gave them existence. The only limitation upon the exercise of this power by the legislature, over the appropriate subjects, and within the proper sphere of legislation, being, that it shall operate on all — that what is law for one man, shall be the rule of conduct for all.

The right of succession to property, by the heirs at law of a deceased person, or to take by bequest, is not a natural right inherent in man, but is purely a civil right, which is a vested right, because secured by the law of the State. It was the established law of the State long anterior to the passage of this private act, that all the property, both real and personal of a decedent, should be subject to the payment of his debts, and it follows, that where real property descends to the heir, or devisee, it does not vest in him absolutely, but subject to the payment of the debts of the former proprietor; and for this purpose it maybe sold on petition of the administrator, by order of the orphans’ court, and the title of the heir, or devisee divested. Such being the law applicable to all persons, the only question is, whether the legislature had power to do by a particular law, applicable to a particular case, that which it had previously provided might be done under the general law, in all similar cases.

There are certainly objections to such partial legislation, but it appears to us impossible to maintain that the legislature cannot accomplish by a particular law, the same object, which might be effected by the general law then in existence, although there is a different mode provided to effect it. It cannot, it is true, pass a particular law, which deprives those on whom it is to operate, of rights which under the same circumstances, are secured to all other citizens; and it is supposed such is tlie case here, because the heirs were not required to be cited, to contest the fact of the indebtedness of their ancestor, previous to the sale. It was competent for the legislature, to have authorized a sale by the orphans’ court, without a citation to the heir in all cases, as is done in many of the States; but as the general law of this State requires a citation to the heir, and conceding this right of the heir to contest the fact of the necessity for a sale, to be a vested civil right, he is not deprived of it in this case. It can make no-essential difference, whether the heir is cited before a sale is ordered to be made, or whether the purchaser takes the property subject to the action of the heir, if the ancestor was not indebted so as to make the sale necessary. The essence of the right consists in the ability to institute an inquiry into the propriety of the sale, and whether this right is to be exerted before the sale is made, or is left to the discretion of the heir, at his pleasure to institute it afterwards, relates to the remedy,which the legislature may alter, or change at their pleasure, so that the right is not impaired. This right is not in terms reserved to the heir by this private act, but it is necessarily, implied, and upon the concession upon which this argument is based, could not have been prohibited.

It is a necessary corollary from this argument, that there was no exercise of judicial power in the passage of this act. The law, it is true, is founded upon the assumption, that the estate was indebted, and required the sale of this land, but there was no adjudication of these facts, otherwise the heir would be precluded from an investigation of them. It is assumed that the facts are so, upon the representation of those applying for the law, but as there is no judgment, the legislature being incompetent under our constitution to render one, the truth of the facts so assumed, is open to contestation.

Nor is it any valid objection to the law, that the title had descended to the heir before the passage of the act, as the legislature has the power, if it chooses to exercise it, of passing laws, having a retrospective effect, although they operate on vested civil rights ; provided they do not impair the obligation of contracts. The prohibition in the constitution of the United States, and of this State, against the passage of ex post facto laws, applies only to laws passed for the punishment of crimes, and the infliction of penalties. [Calder v. Bull, 3 Dall. 386; Fletcher v. Peck, 5 Cranch, 138; Satterlee v. Matthewson, 2 Peters, 380; Watson v. Mercer, 8 Id. 110.]

Questions precisely similar to this have arisen elsewhere,- and such laws sustained as constitutional, by the most respectable courts of the Union. Leland v. Wilkinson, 2 Peters, 427, is very analogous to this, in all its essential features. There, an executrix residing, and having qualified in New Hampshire, made a private sale of land of her testator, situate in Rhode Island, for the payment of the debts of the deceased, and afterwards procured an act of the legislature of that State confirming the sale. An action being brought by a devisee of the land, against the purchaser, the act of the legislature was held to be valid.

In Rice v. Parkman, 16 Mass. 326, an act of the legislature, authorizing the real estate of a minor to be sold, notwithstanding there was a general law delegating the same power to tbe courts, was sustained. And in Davidson v. Johnson, 7 Metcalfe, 388, it was held, that the legislature had power to authorize the guardian of a lunatic to sell a part of his ward’s estate. So, the supreme court of New York has held, that where the rents and profits of land, were given to a father during his life, with remainder in fee to his children, an act of the legislature authorizing a sale of the property for the maintenance of the father, and for the support and education of the children, was valid and binding on the children. [Clarke v. Van Surlay, 15 Wend. 436; see also Estep v. Hutchinson, 14 S. & R.; Livingston v. Moore, 7 Peters, 540; Shehan v. Mather, 6 Monroe, 594; Mather v. Shehan, 6 Conn. 54.] To these, other citations might be added, but we content ourselves with referring lastly, to the case of Watkins v. Holman, 16 Peters, 25, where the supreme court of the United States held, that this act, we are now considering, was not in contravention of the constitution of this State. There are, it is true, adjudications denying the validity of such legislation as this, but the weight of authority is decisively the other way; and although it is undoubtedly the province of the judiciary to pass upon the constitutionality of all laws, and to declare them invalid if unauthorized by the constitution, to which all the departments of the government must yield obedience, yet it is conceded by all courts, to be a power which should not be exercised in doubtful cases. The inexpediency of such laws as this, from their tendency to promote litigation, and the dissatisfaction which even a change of the mode, or remedy, in a particular case, always produces, is admitted, but that is a question of expediency, which the legislature must determine for itself. The utmost that can be said of the legality of such acts, after the numerous decisions sustaining them, the adjudication of the highest court upon this particular law, and the numerous acts of the legislature of a similar kind, is, that their conformity to the constitution of our free government, is not so certain, and unquestionable, as is desirable in all laws. But certainly such scruples as these, do not justify this court in the exercise of its transcendant power, to declare the act a nullity. To justify us in so doing, the act must be a clear, ■and plain violation of the paramount law: such not being the case, we are bound to enforce it.

The.objection, founded on the fact, that Mrs. Holrñan administered on her husband’s estate in Massachusetts, and not in this State, has been incidentally considered, and answered. Whether a foreign administrator shall be permitted to sue in our courts, or to sell property, appertains exclusively to the remedy; and as such power could be conferred on all foreign administrators, it may be conferred on a particular one. The case of Wilkinson v. Leland, 2 Peters, 627, already cited, is in this respect expressly in point. As to the objection that the money was not paid to the administratrix, it is sufficient to say, that no creditor is here complaining. The only question that the heirs have any interest in litigating, is the power of the legislature to pass the act, and whether in fact a sale was made under, and in conformity to it. Whether the money has ever been paid to the administratrix, or if paid, whether she has devoted it to the payment of the creditors, are questions which do not arise between the parties to this record.

It has been already stated, that the fact whether the sale of this land was necessary for the payment of the debts of the elder Holman, deceased, was open to be contested by the heirs, but no such issue is made by them. On the contrary, the only adult heir who has answered the bill, admits, that the firm of Holman & Brown owed debts to a considerable amount, some of which it is alledged are still unsettled. This is an indirect admission of the insolvency of the estate, as the personal property of the deceased, wherever situate, was liable for his debts, and if after the lapse of more than twenty years, some of his debts are still unpaid, the inference is irresistible, that a sale of the real estate was necessary. In addition, it appears from the proof, that the administratrix declared the estate insolvent, in the probate court in Massachusetts.

The arrangement entered into between Brown, and the administratrix, for a re-conveyance of the land, can have no effect on the bank, as it had no notice of this secret trust.

The defendants also insist, that the mortgage debt has been paid by Brown. The bank admits that a portion of the debt has been paid, and credited on the notes which are exhibited. Messrs. Hickling and Whiting, cashiers of the bank during' these transactions, and Mr. Simmons, the solicitor, and also a director of the bank, have been examined, and they deny any knowledge of any payment beyond the amount credited on the notes, and state that the books of the bank furnish no trace of any other payment; and it is difficult to ■conceive of a negative better established. The depositions of these gentlemen in a former cause, between other parties, were offered, and were proper testimony for the purpose of discrediting them, but in our opinion, there is no material difference between the two sets of depositions, when they treat of the same facts. If, however, these depositions were stricken out of existence, it would not vary the case, as the notes are prima facie evidence of the debt, and it devolves on the other side to prove that they are satisfied.

It is not pretended that there is any positive proof of the payment of the debt, but the whole argument, on this point, turns upon the fact, whether Copeland was the agent of the bank, as well as the agent of Brown. It is proven that Copeland received from the agent of Brown in Mobile, a large sum of money, which he did not pay over to the bank, but which, if he was its agent, was a payment to the bank. Copeland was examined as a witness for the bank, and deposes that Brown empowered him to receive the rents and proceeds of the sales of his land in Mobile, and authorized him to pay it over to the bank, and that he did so pay over, until Brown conveyed the property to him for other purposes, after which he applied the rents and proceeds of sales to those purposes; he further states, that all the money he paid the bank for Brown, he took care to see indorsed on the notes. It is clear there is nothing in this testimony, from which it can be inferred he was the agent of the bank. Why he was not examined in the cross-examination upon this point, by the defendants, can only be explained upon the supposition, that they feared he would deny it.

The agreement between Copeland and the bank, by which the latter agreed to convey to the former, all its interest in the mortgage, is also relied on as conducing to prove his agency. But in our opinion, it does not authorize such a conclusion. Copeland, to secure a large debt which Brown owed him, had obtained from him a conveyance of the property, but this was subject to the mortgage of the bank, and the undertaking of the bank, to release to him oh payment of the mortgage debt, has no connection with a recognition of him as its agent. On the contrary, it would seem, rather that the bank would look to him as the principal, and trouble itself no further with the collection of the debt. The reason assigned by Copeland, for entering into the arrangement with the bank, is, that by getting the title of the bank, he obtained the relinquishment of the dower of the wife of Brown, which he did not have to the conveyance he had from Brown. Be the motive what it might, the agreement between him and the bank had a precise and definite object in view,which if not inconsistent with his being the agent of the bank to collect a debt which he there promised to pay, by no means warrants the inference attempted to be drawn from it.

The same remarks apply to the interference of Copeland in the management of the former suit on the part of the bank, conceding such proof to have been made. Being the owner of the equity of redemption, he was directly interested in defeating the claim set up by Davenport to one half the land, whilst the mortgage of the bank was paramount to both. In attending to the suit, he had a motive personal to himself, and we cannot therefore gratuitously suppose that he was the general agent of the bank.

The transaction with Sheffield & Barney, turns upon the same fact, the agency of Copeland. The facts are, that Brown being desirous to sell a portion of the land covered by the mortgage to S. & B., procured the bank to release to him that portion of the land. The reason assigned for this, in the bill, is. that the bank condsidered the residue of the property ample for the security of the debt. Brown resided in Boston, and Ames, as his agent, in Mobile, sold the land to S. & B. for $20,000, and received in payment $8,000 in money, and two promissory notes for $6,000 each, payable in one and two years. The cash, and the notes, were transmitted by Ames to Copeland, and subsequently it appears, Brown negotiated these notes with the bank, and received the money thereon, he having indorsed the notes. There is no testimony that the bank received any consideration for releasing the title to this property, or that it had any motive except the one assigned in the bill, which is neither unnatural or improbable. , Ames, states in his deposition, that he considered himself both the agent of Brown, and the Bank, in making the sale, and so stated at the time to B. &. S., and that he transmitted the money to Copeland, as agent of the bank, but he admits he had no intercourse with the bank, and derived his impressions entirely from the declarations of Brown, and the supposed assent of Copeland. It is too clear for argument, that the bank cannot be affected by this transaction. The discount of the notes by the bank, is conclusive that they were not paid to it in discharge of the debt, and it has been previously shown, that there is no proof of Copeland’s agency, so as to affect the bank with the receipt of the money by him. There was doubtless some arrangement between Brown and Copeland, between whom there were large money transactions, that the latter should pay Brown’s debt to the bank; but this, it is certain from his own deposition, and that of the bank officers, he did not do, but in part, and such payments as were made, he caused to be credited on the notes. We may dismiss this part of the cause, by saying, that there is ilo fact or circumstance, from which we are authorized to infer, that Copeland was the agent of the bank, to receive the money due upon this mortgage.

It is a general rule, that the court will decree a specific performance of a contract for the sale of lands, if it has jurisdiction of the person of the defendant, although the lands may lie in another country, as the primary decree in perso-nam, and the inability of the court to enforce its decre in rem, will be no obstacle to its taking jurisdiction. [Penn v. Lord Baltimore, 1 Vesey, 444.] But the converse of this proposition, is not true, at all events in this State, as the statute authorizing a decree against non-resident defendants, contains a proviso, that “the act shall not be so construed, as to authorize proceedings against persons residing out of the State, unless the ground, or cause of action, or the transaction on which the bill maybe brought, took place within the State.” It is not alledged in the bill that such is the fact in this instance, and there is internal evidence that the covenant here sought to be enforced, was made in Massachusetts.

The voluntary appearance of the adult heir, will give the court jurisdiction as to him, but the appearance of the infant, Agnes Howard, by her guardian ad litem appointed by the court, cannot be considered as the voluntary appearance Of the infant. The design of such appointment is to protect the interests of the infant, and it would be placing infants in a worse condition than adults to give this the effect of a voluntary submission to the jurisdiction of the court. [Erwin v. Ferguson, 5 Ala. 157.]

As the court had not jurisdiction of the non-resident infant defendant, it is now contended, that the interest of both the heirs is joint; that she is therefore an indispensable party; and although the adult heir has voluntarily submitted to the jurisdiction of the court, there can be no decree against him alone.

The general rule certainly is, that all persons materially interested in the matter in controversy, either as plaintiff or defendant, must be parties, so that the rights of all may be bound by the decree, and an end put to litigation. But this is not an unbending rule; it is one adopted for the convenient administration of justice, and may be dispensed with, when extremely difficult, inconvenient, or impossible of attainment. If a decree can be made, which will bind those which are before the court, and will not affect the interest of others, who from their non-residence, or other cause, cannot be made defendants, it will form an exception to the general rule, and the court will take jurisdiction, and determine the cause as to the parties before it. [Elmendorf v. Taylor, 10 Wheat. 167; Mallon v, Hinde, 12 Id. 193; Ward v. Aredondo, 1 Hop. 213.] In the case last cited, Ward, a citizen of New York, made a contract at Havanna, with Aredondo, for the sale of land in Alabama, upon which partial payments were made. Subsequently, A. sent a deed for the land to his agent in New York, to be delivered to W. on the payment of a certain sum, which he claimed to be due on the contract. W. denied that the sum claimed was due, and filed his bill for a settlement of the account, and for an injunction against the removal of the deed. The court sustained the jurisdiction, and held, that whenever the parties, or the subject, or such a portion of the subject are within the jurisdiction, that an effectual decree can be made, and enforced, so as to do justice, the jurisdiction would be upheld. [See also, West v. Randall, 2 Mason, 190.]

The principle of these cases is decisive, in favor of the jurisdiction here. The heirs are tenants in common of this land; their interests therefore are not so blended, that the title of one cannot be determined, without the presence of the other. The interest of each is distinct, and separate, though depending on the same title. Each could sell his interest, without the consent of the other, and upon the death of either, it would descend to his heir at law; it may therefore be subjected to sale, or the interest divested, by the decree of a court of chancery, without in the slightest degree affecting the right of a co-tenant. The infant defendant here, will not be prejudiced by this decree, but may, whenever she thinks proper, litigate her title to these lands. It was then the duty of the court, so far as proper parties had submitted to its jurisdiction to pass upon the title; and as to those not before the court, the sale must be made subject to their interest, or claim of title. [Hallett v. Hallett, 2 Paige, 18.]

It is supposed that the bill does not alledge that Brown was ever in the actual possession of the land. The allegation of the bill is, that he was seized, or pretended to be seized, in fee simple of the premises, when he executed the mortgage. This is the usual and customary allegation, and the answer of the heir, in terms, admits that he was in possession of the land in 1824, some years previous to the mortgage, asserting title under the covenant with O. Holman, the elder, and under the purchase made at the sale of the ad-ministratrix.

It is also argued, that no decree can be made against the defendant, Denton, because the bill does not state from whom he derived his title — whether from Brown, Copeland, or the heirs of Holman. The allegation of the bill is, that Denton with others, claims to have some interest in the mortgaged premises, and he with the rest is called on to answer the bill. It was not necessary for the complainant to state the source, or the character of the title alledged to be set up against the mortgage, for of these facts the complainant cannot be' presumed to have any knowledge. It was sufficient to alledge, that a title was asserted hostile to the mortgage, and to give the person asserting it an opportunity to produce and litigate it, and that has been done here.

The objection cannot be made for the first time in 'this court, that notice was not given of the application to the register, for leave to file a bill of revivor against the heirs of a deceased defendant. If the order was made without the né-‘ cessary notice, a motion should have been made to the chancellor to vacate it, as contemplated by the statute giving this power to the register. [Clay’s Dig. 349, § 17.]

It is objected, that the execution of the covenant, from Holman to Brown, is not sufficiently proved. The only persons interested in this inquiry are the heirs of Holman. The defendants who hold under Brown, have the same interest to sustain it as the bank. The adult heir of Holman, does not deny the execution of the bond, but professes ignorance of the fact, though he admits Brown went into possession under it. It bear sdate in 1822, and appears to have been attested by John and 4-braham Holman. It is proved very satisfactorily, that the "signature to the bond, is in the hand-writing of O. Holman, deceased*. And it is proved by two old residents of Mobile, both of whom have resided there before and since the date of the bond, that they never knew or heard of such persons as the witnesses, in this State. This was, in our opinion, sufficient prima facie at least, to show, that the witnesses were not within the jurisdiction of the court, and to authorize the secondary evidence. Especially in a case, where the execution of the bond was not directly controverted, where there had been a possession of more than twenty years under it, and where the bond was more than twenty-two years old, at the time the testimony was taken. To this may be added, that Brown and Holman both resided in Massachusetts, and the whole case affords strong internal evidence that the bond was executed there.

There is no foundation whatever for the argument, that the bank has slept upon its rights. The original bill was filed in 1834, two years previous to which the litigation about the' property commenced, by a bill filed by Davenport, to which the bank was a party, since which time it appears to have been sedulously endeavoring to enforce this mortgage.

Lastly it is contended by the counsel for Davenport, that as he has a title to one half the property, by purchase from Brown, although his title may be inferior to that of the bank, yet as the bank released to Remsen & Jude, the title to a portion of the property covered by the mortgage, and thereby increased the burthen which must fall on the residue of the mortgaged estate, he is entitled to a pro rata reduction.

It appears from the record, that Remsen & Jude, who were purchasers from Copeland, sold to Bartlett & Waring, and that the latter, to quiet their title, purchased from Davenport his interest in the undivided half of the property, secured to him, by the decree made in the bill filed by him, against Brown and others. It would seem therefore, that he, at least, has no interest in this question. But let us for a moment consider the pretension here set up.

The mortgagee having lent his money, and taken a mortgage on land, may if he thinks proper, release, the whole, or any portion of it, to the mortgagor, or to ^a purchaser from him. What right has a purchaser from the mortgagor, of a portion of the land, to interfere in this matter ? Between him and the mortgagee there is no privity, either in estate or in law, and as he purchased with knowledge, that all and every part of the estate was liable to the payment of the mortgage debt, he cannot complain when it is enforced. If the mortgagee should collude with an insolvent mortgagor, to make the entire loss fall on a particular purchaser, equity might afford relief on the ground of fraud; but that is neither alledged or proved, and it is impossible, that an equity can grow up in favor of a stranger, from the exercise of an undoubted right.

There is no resemblance between such a case as this, and that of a creditor, who relinquishes a collateral security held by him for the payment of the debt, to the debtor, and then seeks to compel a payment of the debt from a surety. The surety is injured #in such a case, because, upon payment of the debt, he. has the right to be substituted in the place of *the creditor, and to stand in his place, as to all securities held •by him for the payment of the debt. But a purchaser from ¡the mortgagor does not .stand in the attitude of a surety for him to the mortgagee, and therefore has not the right of one. The last point decided in the case of the Ohio L. I. & T. Co. v. Ledyard, 8 Ala. 875, embodies a principle analagous to the one now under consideration.

Hopkins and Sewall, for plaintiffs in error—

Upon the construction of the act of 1811, relied upon the •decision of this court in Singleton v. Gayle, 8 Porter, 27, which they insisted was in point, and was a matter necessary to be decided, and also relied upon the arguments previously urged by them, and contended, that as a statute existed when the act of 1811 was passed, forbidding a decree to be made, notwithstanding a decree fro confesso had been rendered, unless the demand was proved, it was evident the legislature did not intend it should apply to suits in equity, therefore the subsequent repeal of that portion of the statute did not affect the construction of the act of 1811. But the statute in relation to decrees fro confesso has only been repealed where there has been a service of process, and is in full force as to absent defendants, upon whom there has been no such service.

Campbell, contra.

The opinion delivered by the court, declares that the act óf 1811, in so far as it provides a mode of proof, establishes a rule of evidence. This is certainly true as regards courts of law. Is there any exception in the statute to exclude the' rule from courts of equity, The rules of evidence in courts of law and equity are, or should be, the same. They should be the best in both courts, or those courts cease to be courts of justice. [3 Black. Com. 434, 436; 1 Story C. on Eq.]

The result of this protracted examination is, that the bill must be dismissed, as it respects the infant, Agnes Howard, in all other matters, the decree of the chancellor must be affirmed.

Judge Goldthwaite, not sitting.

RE-ARGUMENT ordered, on motion of defendants in error.

The court of equity will follow the rules prescribéd by statute, which constitute laws of property or evidence, although the statute applies in terms only to courts of law. The statutes of limitations and of frauds, are evidences of this truth.. [2 Story’s Eq. 57 ; Buford v. Buford, 1 Bibb, 301, 395.]

Courts of equity will give to legal instruments the same effect in equity as at law. [2 Keen. 228 ; 4 Hon. 67.]

The statutes authorize the court to carry into effect contracts for specific performance, and gives plenary powers to the court upon that subject. [Clay’s Dig. 350, § 29.]

The court, by virtue of its general jurisdiction, may appoint guardians ad litem for absentees, although not falling within the description of the absentees mentioned in the acts. [1 Smith’s Ch. Pr. 256; 3 Beaven, 10; 7 lb. 66; 1 Ala. R. 388.]

The power of the court to make rules for the government of courts of chancery, authorizes the court to make rules of process to affect absent defendants. This has been done in Great Britain, under an analagous case.

This cause has been again argued upon two points. First, upon the proper construction of the act giving courts of chancery jurisdiction of non-resident defendants. Second, whether the act of 1811, making instruments in writing evidence of the debt, or duty, for which they were given, applies as well to suits in equity as at law.

The statute authorizing courts of chancery to take jurisdiction of non-resident defendants, upon the constructive notice afforded by publication, confines it to those cases where the “ ground, or cause of action, or the transaction on which the bill may be brought, took place within this State.” What is the meaning of these terms ? The two first, ground, or cause of action, were doubtless intended to convey the same idea. They are, if not synonimes, certainly used to denote the foundation of the suit. To these are added the term “ transaction,” which, if not of precisely ^equivalent import with the two others, being a word of larger and more comprehensive meaning, was evidently designed to convey an idea which could be embraced within the same category, as the other two, as all three are controlled by the language which follows, “ took place within this State.” The ground, or cause of action, then, or the transaction which is the foundation of the suit, must have taken place within this State, to give the court jurisdiction of the non-residents, who do not voluntarily appear. The meaning of this peculiar idiomatic phrase, is, to come to pass, to happen, which can with no propriety be predicated of the subject of a contract. It would be absurd to say, a contract took place within this State, because the subject on which it operated happened to be here.

But as citizens of other countries might be concerned in acts within this State, which would require the interposition of chancery, or might assert rights to property claimed by our own citizens, between whom no contract had ever existed, the legislature appears by the term transaction, to have intended to embrace every case in which it would be proper to compel the non-resident to come here and litigate his claims. It never was intended, that our citizens should make contracts, or acquire rights in other countries, and then compel the non-resident to come here and litigate the matter. Still less could it be tolerated, that when two foreigners have entered into a contract, one should compel the other to come to this State, and litigate his title, merely because the subject matter of the contract was here. The'case of Wyatt v. Greer, 4 S. & P. was a controversy upon .a contract made within this State, and we are clear in the opinion, that this compulsory jurisdiction, can only be maintained, where the foundation of the action takes place in this State. If that arises out of a contract, the contract must have been made here. If it does not arise out of a contract between the parties litigant, there must be some act done by the non-resident Avithin this State, justifying the interference of chancery; or he must assert title in virtue of some transaction, which took place within this State.

So far as this bill is founded on the contract of the elder Holman Avith Brown, the compulsory jurisdiction of the court cannot be maintained against the heirs of Holman, as the covenant Avas made in Massachusetts. Whether it would have varied the case, if by the contract of the parties it was to have been performed here, we need not inquire, as it cannot be inferred that the covenantor was to come to this State to execute it.

The bill charges, that the heirs of Holman have entered on portions of the mortgaged premises, and are now in the reception of the rents. Upon the principles here laid down, this is such an interference with the property of the mortgagee, as would justify their being made defendants to a bill to foreclose the mortgage on the same property. Such acts done within the State, are a submission to the jurisdiction of the courts of the State, and preclude the actor from claiming the exemption conferred on non-residents. In such cases, the “ transaction” takes place within this State, within the meaning of the statute.

So far therefore, as these non-residents have by suit, or otherwise, asserted title to, or possessed themselves of, portions of the mortgage estate, and assert a title hostile to the mortgagee, they were properly made parties, and to that extent, and no further, may a decree be rendered. The rule, that where a court of chancery takes jurisdiction for one purpose, it will retain for all purposes, does not apply to such cases as this. This is a personal privilege, which the parties have waived quoad the particular lots on which they have entered. This waiver cannot be 'extended by implication, to other separate and distinct lots, with which they have never in,t,ej-niGddled by suit or otherwise.

As .to .those non-resident defendants, whether infants or adults, who assert an interest in the mortgage estate, by conveyances made in this State, subsequent to the mortgage, they are clearly not within the proviso of the statute, and may be made defendants by publication, in the mode pointed out in the body of the act.

We come now to the consideration of the remaining question — the proper construction of the act of 1811, [Toulmin’s Dig. 462, § 3, 4.] The proper construction of this act, so far as it operated on suits at law, has been settled by repeated decisions of this court, as shown in the reasons given for the judgment first pronounced. Must the same construction prevail when the question arises in equity ?

The rules of evidence are the same both at law and in equity. These rules are nothing more than means devised for the ascertainment of truth, and when the legislature declared that where a suit was founded on an instrument in writing, it should be recognized as “ evidence of the debt or duty for which it was given,” it must be held to be a general declaration applicable to all suits, in all courts, if the act itself haa not precluded all doubt on the subject, by expressly declaring that it should apply, when a suit was commenced on any writing, “ in any of the courts of this territory.”

The rule here promulgated, it is urged has been deprived, of its application to suits in equity, by the subsequent acts of the legislature, for the regulation of chancery practice.

It has already been stated as a principle universally acknowledged, that the rules of evidence are the same in equity as at law, but as the mode of proceeding in these courts is different, so also are the implied admissions, which these courts make upon the default of the defendant. At common law, the plaintiff was required to prove his case, though the defendant failed to appear, and a judgment was rendered against him for such omission ; and for that purpose a writ of inquiry was awarded. Whilst in chancery, the analagous case of a decree pro confesso, for failing to answer, was an admission of all the allegations of the bill. This rule of the common law was changed by the act of 1823, (Clay’s Dig. 351, § 39,) which required the complainant to prove his case, notwithstanding the defendant failed to appear and answer. It may perhaps be well doubted, whether this last act had any effect upon written evidence, when that was the foundation of the bill, and to which alone the act of 1811 applied, and whether it was designed to have any other effect than to change the mode of proof in suits in chancery, as to those allegations of the bill not sustained by written evidence. Be this however as it may, the subsequent statute of 1841r (Clay’s Dig. 354, § 58,) restored the English rule, as to those defendants on whom the bill was served, and none of these' statutes ever had any application to non-resident defendants, who by the act of 1805, might be made parties to a bill in chancery. As to them, the English rule, that the default was an admission of the allegations of the bill, has been the-law of this State, at least since the passage of the act of 1805. [Arnold v. Sheppard, 6 Ala. 299.]

In truth, the object of the act of 1811, and that of the various acts regulating chancery proceedings, was entirely different. The former changed the rules of pleading, and shifted the burthen of proof from the plaintiff to the defendant, when the suit was on a written instrument, and by necessary consequence, introduced a new rule of .evidence. The latter, (so far as they relate to this inquiry,) were designed to regulate the implied admissions, resulting from the omission of the defendant to answer. The effect ascribed by the act of 1841 to a written instrument, is entirely distinct and separate from this, and if the execution of a written instru-strument, the foundation of the suit is admitted, or being denied, is proved, the law then makes it evidence of the debt or duty for which it was given, and it devolves on the defendant to repel this legal presumption, by the proof of facts inconsistent with the promise, or rendering it inequitable that the promise should be performed.

We directed a re-argument on this point, not because we felt any doubt of the correctness of the judgment previously pronounced, but because a former determination of this court, brought to our notice by the petition for a re-argument, appeared adverse to the decision as announced. The case referred to, is Singleton v. Gayle, 8 Porter, 274, where it is said that the act of 1811 does not apply to suits in chancery. The opinion there announced, was not necessary to the decision of the cause, as the court had previously decided a point, which was decisive of the entire case, and affirmed the decree of the chancellor. The judge delivering the opinion then proceeds to answer an argument of counsel upon another point- — the necessity of proving the bond and mortgage. As this was wholly unnecessary, it may account for the very brief manner in which the subject is treated, and perhaps palliate an inaccuracy in the reasoning of the court.

In point of fact, the decision was in accordance with the received opinion, and practice, under the act of 1823, which required the court, before rendering a decree in favor of the complainant, to be satisfied of the justice of the demand, by sufficient evidence, notwithstanding there was a decree pro confesso against the defendant. This act, which was then in force, as has been already remarked, has since been repealed.

The decree of the court of chancery is reversed, as to the infant, Agnes Howard, and the case remanded for further proceedings, both in respect to her and the other non-resident defendants, in conformity with the principles here announced. In all other particulars the decree is affirmed. The costs of Agnes Howard in this court, must be paid by the defendant in error, the remaining costs will be taxed against the plaintiffs in error.