JULY 1829. * At the February term, 1824, on hearing the bill answers and proofs, the chancellor in the Circuit Court dismissed the bill as to M'Kinley and Birney, with costs; and Chapman. in June 1826, a final decree was rendered in the same Collier V. Court against Chapman, on the bill, answers and proofs, for the debt and interest, and subjecting the negro Cupid to sale towards satisfaction of the mortgage. Collier, in this Court assigns for error, the dismissal of the bill as to the defendants M'Kinley and Birney in the Court below, and insists that a decree should have been rendered against them. CAMPBELL, KELLY, and HUTCHISON, argued for the complainant, and cited authorities to shew that a purchase with notice of a prior unregistered deed, could not prevail against it. a HOPKINS, for the respondents. By JUDGE CRENSHAW. This case as presented to the Court, involves important points, none of which it is deemed necessary now to settle, except to determine whether Collier's mortgage is sufficiently established by those rules which govern in a Court of equity, so as to bring it fairly before the Court. The bill alleges that Collier's mortgage has been so defaced and obliterated by accident, that it could not be exhibited. Chapman, in his answer, says he did execute the mortgage to Collier, he thinks for four negroes, being a part of those in M‘Kinley's possession, the names of which he does not recollect. Birney answers, that he was a witness, or was at least present, when the mortgage was made by Chapman to Collier. If the answers of Chapman and Birney could be admitted as evidence against McKinley, then the existence of the mortgage alleged in the bill, is established. The general rule is, that the answer of a defendant cannot be read in evidence against his co-defendant. To this rule, it seems there are some exceptions. The inquiry therefore is, whether the case under consideration, comes within any of the exceptions. In the case of Clark's Exr's. v. Van Riemsdyke, b Judge Marshall lays down the proposition, that the answers of three copartners and joint-owners of a ship, though insolvent and discharged under the insolvent laws of a State, cannot be read in evidence, to charge the other • NOTE.-What the proofs were, the record does not disclose. JULY 1829. Collier V. Chapman. joint-owner on a bill drawn by authority of the owners. In that case three of the defendants, who had taken the benefit of the insolvent laws, and who were copartners in merchandise, and joint-owners of the vessel with the other defendant, admitted in their answers that the supercargo of the vessel had authority to draw the bill in question. The Court excluded the answers as inadmissible to prove that the supercargo, as a partner, had authority to draw the bill. The Court also excluded their depositions, on the ground of their being interested witnesses, notwithstanding their discharge under the insolvent law. In the case of Starling v. Blair, a Wilkinson being indebted to a 4 Bibb 288. M'Ilvain, for the purpose of securing payment, gave a mortgage on certain lots in the town of Frankfort. The money not being paid at the time agreed on, M'Ilvain filed his bill against Wilkinson, and obtained a decree of foreclosure and order for sale, under which Starling purehased one of the lots. Blair then filed his bill against Wilkinson, McIlvain and Starling, alleging that prior to McIlvain's mortgage, he had purchased the lot of Wilkinson. The bill was taken pro confesso as to Wilkinson. The other defendants in their answer, did not admit, but required proof of Blair's purchase. The question then was, whether Wilkinson's admissions, implied in the order pro confesso, could be received as evidence to prove his previous sale to Blair. Chief Justice Boyle, in giving the opinion of the Court, says, "that if Wilkinson had answered and expressly admitted the contract, or sale to Blair, it could have no effect against the other defendants; 1st, because the answer of one defendant cannot be received as evidence asgainst another; and 2nd, because the confession of a vendor, after he has parted with his title, is not admissible in derogation of the title in the hands of the vendee." . If then this be sound law, the case of Chapman forms no exception to the general rule, and his answer cannot be read for the purpose of establishing Collier's mortgage; because this would be in derogation of his deed of trust and subsequent sale to M'Kinley. It next becomes important to inquire whether Birney's answer, can be read in evidence against M Kinley. If he had no interest in the subject of litigation, or in the event of the suit, it was not necessary to make him a party, and his deposition might have been taken and used at the hearing of the cause, as that of an indifferent witness, b 9th Cranch 153. JULY 1829. Collier V. Chapman. à 1 Dessaus ure. In 1st McCord's Chancery Reports, it is said, that after the trust has been executed, and the property delivered to those who under the deed are authorised to receive it, or in other words to the cestui que trust, the trustee need not be made a party. If this be good law, it may have some application to the present case: for the bill shews that the trust has been executed, and that M'Kinley has possessien of the negroes as a purchaser, and in payment of his debt. In 2nd Johnson's Chancery Reports, it is laid down, that if a party be made defendant pro forma, but has no interest in the cause, and in the 6th of the same author, that a party charged as combining with others in a fraud against which relief is sought, may be a witness for his co-defendant, and seems to deny the position that he can be a witness against him. In the case before us, the bill expressly charges "that the said conveyance, meaning the deed of trust, was contrived by said defendants to defraud the complainant, and to secure Birney, who was security for the payment of M'Kinley's debt " In the case of Wilson v. Wilson, a it was also decided, that the evidence of a trustee was inadmissible to destroy the deed of trust, to support which, was the sole purpose for which he was created. The result of my researches and reflections, and on this subject they have been laborious, is, that Birney is so charged in the bill as to preclude his answer from being read in evidence against M'Kinley, and that without his answer, or the answer of Chapman, there is no sufficient testimony to establish the complainant's mortgage, set forth in the bill. It appears from the record, that on the circuit, the case was heard on the bill, answers, and proofs; but what those proofs were, we are not informed by the record. If they were available to the complainant, he might have taken the necessary steps to bring them before this Court. A majority of the Court are for affirming the decree. JUDGE PERRY, dissenting. JUDGE TAYLOR, not sitting. Decree affirmed. SMITH V. HEARNE. Two writs of error having issued, the Clerk returned thereto one single record, containing two judgments. The record being properly applicable to neither of the writs, they should be dismissed. N. SMITH, sued out two writs of error to the County Court of Clarke county, and gave two bonds to supersede the judgments below. The Clerk of the County Court returned the two writs and bonds jointly, and attached to them one transcript of record only. This transcript contained two judgments. It appeared that Smith had obtained two judgments before a Justice of the Peace, against C. Hearne, on two separate demands; that the defendant by one single petition, prayed for, and obtained a certiorari, from the County Court, to bring up both cases. was but one order and Certiorari bond, for both cases; and they were returned jointly to the County Court, under one writ of certiorari only. At the January term, 1828, of the County Court, two judgments were rendered for the defendant, against the plaintiff, for cos le was certified as one record only. BARVAN There BAGBY and LYON, for Smith the appellant Peder- rors. PARSONS and COOPER, for the defendant &ror, insisted that the writs of error should be dmissed. By JUDGE COLLIER. In this case, two writs of error and two judgments, are certified jointly to this Court. The Court must consider the transcript as it is sent up without severing the judgments. If we had the right to do so, in this case, it would avail nothing; because the proceedings and judgment separately, would not constitute records on which we could act. Besides, there is nothing in the writs of error which enables us to say to which judgment they were designed, respectively, to apply; and were we to reject one of the writs, the plaintiff would not be benefitted. There would be still two judgments, which are not examinable on one writ of error. For these reasons, we are not permitted to examine the assignment of errors. The writs of error are therefore dismissed. JULY 1829. JULY 1829. MOORE, Executor v. DUDLEY and WIFE. 1. In construing wills, the intention of the testator must govern, and it is to be ascertained, when doubtful, from a full view of the entire jinstrument; all its parts are to be reconciled if possible, and if not, the latter provisions are to govern. 2. B bequeathed to his daughters, S. and A. each eight negroes, which they then possessed; and to his other daughters, each, a lot of negroes equal in value to those given to S. and A. to be allotted them when they respectively married or came of age. Held, that the valuation was to be according to age, number, comeliness, &c. of the negroes, and not to the fluctuating or casual money value, at the time the younger daughters should become entitled. PULASKI DUDLEY, for himself and Susan, his wife, in right of his wife, filed a petition in the County Court of Madison county, in March, 1825, against William Moore, who was the executor of Uriah Bass, deceased, claiming a further allowance to the value of $1,515, for a deficiency in a distribution of the negroes of said estate, made to him under the will of said Bass, and for the hire of the slaves he should have received as he alleged. The controversy arose on the construction of the will, and on that part of it only, which related to the disposition of the negroes of the estate: it contained sundry devises and bequests, concerning which there was no difficulty. The material facts appear to be these. Bass made his will in 1819, and shortly afterwards, died. By it, he bequeathed to his married daughters, Sarah Green and Ann Green, among other things, to each, a lot of eight negroes, which he said they had received from him. The will afterwards contains these words: "I give and bequeath unto my daughters, Elizabeth, Susan, Mary, Louisa, and Julia, each of them two quarter sections of land, to be purchased at the discretion of my executors, not to exceed eleven dollars per acre, on an average; also a lot of negroes to each of them, equal in value to the lots given to my daughters Sarah Green and Ann Green's lots, immediately after my death. It is my will and desire as my daughters marry or come of age, that their lots of negroes should be valued and laid off to them by my executors." Other small articles were bequeathed to each of these daughters. Provisions are also contained in the will for each of the testator's sons, Richard, William, and Uriah; and besides other things, it contains a bequest to each of them in these words: also his proportionable part of the negroes not |