lessee was the person liable to the penalty under the statute. This decision is assigned for error by Taylor, who sued his writ of error to this Court.

THORINGTON, for the appellant.

FITZPATRICK and GOLDTHWAITE, for the appellee.

JULY 1829.

Taylor

V.

Rushing.

Minor's Ala, Rep. 366.

By JUDGE PERRY. The penalty is claimed under the provisions of the statute, passed December the 20th, 1820, which is in these words: "And it shall and may be lawful, for any person or persons detained at any public ferry, by reason of the ferryman's not having good and sufficient boats, or other proper craft, and hands, or by neglecting to do his duty, may by warrant from a justice of the peace, recover from such ferryman, or owner of such ferry, the sum of ten dollars for every default or neglect." Under this clause of the statute, the facts of a Laws of Ala. the case present two subjects for our consideration. The p. 397. construction of the agreement between Allen and Rushing, and whether it constitutes a lease; and the construction of the statute under which these proceedings were had. A majority of the Court are of opinion, that if Allen could be considered as a lessee, that then the defendant was not liable unde the statute, according to the principle settled in the case of Ladd v. Chotard, decided in this Court. But in applying the rules of construction to the agreement between Allen and the defendant, we have come to the conclusion that it does not constitute Allen a lessee, because there was no definite period of time, that he was to enjoy the ferry, in exclusion to the owner. Allen then having no right to the possession in exclusion of the owner, places him in the situation of a laborer for hire, to Rushing; and his having the entire control and management of the ferry, does not alter the construction of the agreement, and consequently, cannot diminish the liability of the owner. He will be held to a strict compliance with the statute, and it would be no excuse for him to say the detention was occasioned by his agent or servant, to whom he had given the management of his ferry. It is contended by the counsel for the defendant, that supposing he was liable under the statute of 1820, at the time of the rendition of the judgment in the Court below, he is not now liable, inasmuch as the Legislature, in 1827, passed an act to consolidate and reduce into one, the several acts concerning roads,

JULY 1829.

Taylor

V.

Rushing.

a 5 Cranch. 281.

347.

highways, ferries and bridges, containing a repealing clause of all acts or parts of acts, contravening the provisions of that act. Without discussing the point, whether or not the law of 1820 was repealed by the law of 1827, a judgment may well be rendered against the defendant, for the reason, that the plaintiff's right to the penalty accrued, and became vested, previous to the law of 1827; consequently the legislature had no power to interfere with the private right which had accrued under the law of 1820. It is this feature in this cause, that distinguishes it from the case of Yeaton and others v. The United States, a and from the case of the Tombeckbe Bank v. The State of 51 Stewart. Alabama. b In the first case, the forfeiture was going to the general government. It was a suit between individuals and the government, and the law under which the forfeiture accrued, was suffered by the government to expire by its own limitation; consequently, the rights which the government acquired under it, ceased. The case of the Tombeckbe Bank v. The State, was similarly situated. A judgment had been rendered against the Bank in favor of the State, for a penalty created by an act of the legislature; pending the cause in this Court, the legislature repealed the law creating the penalty, without reserving the rights the State had acquired under it. The State having the interest in the penalty, it was competent for the legislature to discharge it. The Court are therefore of opinion, that the judgment of the Court below should be reversed, and judgment rendered in this Court for the plaintiff.

Reversed and rendered.

The possession of personal property, remaining with the vendor, where the bill of sale is absolute, is only prima facie evidence of fraud, and not fraud per se.

THIS was a writ of error sued by Willis Martin, who was also plaintiff below, to reverse a judgment rendered against him in the Circuit Court of Greene county, in an action of trover, brought by him against Asa White, administrator of George Evans, to recover five negroes,

which he claimed under a bill of sale, made by Evans to
him. Many points were presented by a bill of exceptions,
in which the Court below was alleged to have erred; one
of which in this Court was deemed decisive..

SHORTRIDGE, ELLIS and ERWIN, for the appellant.
VAN DE GRAAFF, for the appellee.

By JUDGE COLLIER. On the trial, the plaintiff relied upon an absolute bill of sale for certain negroes, from George Evans, deceased. The defendant, it appears, was the administrator of the decedent. Possession did not accompany the conveyance. On these facts, the presiding judge instructed the jury, that the bill of sale, if the negroes conveyed were not delivered, was fraudulent against creditors.

JULY 1829.

Martin

V.

White, Admr.

The Court, at this term, in Hobbs, v. Bibb a have deci- a Ante p. 54. ded that the possession remaining with the vendor, as it seems it did in this case, is not fraudulent, but only prima facie evidence of fraud. Upon the authority of that case, the Court are of opinion that the judgment below must be reversed, and the cause remanded; the bill of exceptions is so inartificially drawn, that the Court is unable to discover the pertinency of the other points on which the judge instructed the jury, and therefore declines an expression of opinion upon the legal correctness of his instructions.

JUDGE SAFFOLD, not sitting.

Reversed and remanded.

COLLIER V. CHAPMAN, et al.

The answer of a defendant in Chancery, cannot be read at the trial as evidence against his co-defendant; particularly where it tends to invalidate a title made by himself.

IN March 1822, James B. Collier filed his bill in equi ty in Madison Circuit Court, against Samuel Chapman, John McKinley, and James Birney, to subject certain negroes to the payment of a debt due by Chapman, to him.

JULY 1829.

Collier

V.

The complainant charged in his bill, that Chapman owed him the amount of four notes, each for $500, payable in 1820 and 1821, and all executed on the 21st of December, Chapman. 1819; that at the time of making the notes, Chapman also gave him a mortgage, to secure their payment, on five negroes named Harvey, Taylor, Cupid, Sally and Maria, which mortgage was not recorded; and by accident the mortgage had been so obliterated, that it could not be exhibited; that the defendant, Birney, and one Land, were subscribing witnesses to it; and that the debt remained wholly unpaid. He further charged, that Chapman, combining with the defendants, McKinley and Birney, on the 7th of January, 1820, executed a deed including the same negroes, to said McKinley, to secure to him the payment of a note for $2,652, which they pretended was due by Chapman to McKinley, and to which Birney was security; that the condition of this deed was, that if Chapman did not pay said note in twenty-five days, that the negroes should be be delivered to McKinley, who should keep them for twelve months, during which time their services should be received in lieu of interest on the debt, and that at the expiration of that time, either they should be sold to pay the debt, or that M'Kinley should take them in payment at certain specified prices, provided said Samuel could make a good title to them, at the option of said Samuel. He also charged, that at the time this conveyance was made, M'Kinley and Birney had full notice of the complainant's mortgage, and that it was contrived for the purpose of defrauding the complainant and securing Birney from loss by reason of his securityship; and alleged that the negroes were then in the possession of M Kinley. The prayer of the bill was, that the negroes and their hire should be subjected to the satisfaction of the complainant's mortgage.

The defendant McKinley, answered, insisting that Chapman was really indebted to him the amount of the note of $2,652, which was dated the 18th of December, 1819, to which Birney was security; and admitted that Chapman had, on the 7th of January, 1820, executed a deed of trust on seven negroes, named Harvy, Caswell, Taylor, Jim, Rix, David and Harriett, in which Birney was trustee, to secure the debt, with condition as stated by complainant; and that Chapman, having failed to pay him, did in February, 1820, deliver the negroes to him. He admitted that Chapman did at the time inform him that Collier held a

mortgage or deed of trust on part of the negroes, which,
he did not recollect, but that he also said that he had made
arrangements to pay Collier, and that he would not resort
to the deed. He further stated, that he remained in pos-
session of the negroes without any further arrangement,
till the 27th of December, 1821; that during that time he
had frequently met the complainant who said nothing on
the subject, although the respondent's deed had been re-
corded as early as the 13th of January, 1820; and that on
the 27th of December, 1821, he applied to Chapman to
close the business, and inquired of him if Collier had been
paid, or if he relied on his mortgage, when he again told
him that he presumed that the complainant had abandoned
the mortgage, as he never had it recorded or said any
thing about it, and that he had paid part of the debt; that
upon this, having examined the records and found no
mortgage recorded, he took Chapman's release upon his
deed of trust, and surrendered his note to him.
His an-
swer further stated, that he did not admit the execution of
any such mortgage as the complainant set up, and that he
relied on the statute of frauds and perjuries in bar of the
complainant's claim. He denied having any thing to do
with Birney in the transaction, and alleged that the convey-
ance to him was bona fide, and taken solely for the purpose
of securing his debt.

Chapman, by his answer, admits the existence of both
debts, and that he executed a mortgage to the complainant
of some negroes, he thinks four, names not now recollect-
ed, but who were part of those now in M'Kinley's posses-
sion; that he executed the deed to M'Kinley, delivered the
negroes, &c.
He stated, that when he executed the deed
to M'Kinley, the mortgage to Collier was spoken of, and
that he told him that he did not expect Collier relied on it;
that he had never had it recorded. He denied that he had
never paid any thing to the complainant, and insisted
he had paid, on divers occasions, money and other things
to a considerable amount, but what amount he does not
now know.

Birney, in his answer, responds, that he believes he was a witness to the mortgage made to Collier; that at least he was present when it was executed; that as to the other deed he heard of it from both parties, but that he had no interest whatever in it, nor in the subject of controversy, and denies all collusion or concern with the subject.

JULY 1829.

Collier

V.

Chapman,