BENTLEY et al. vs. CLEAVELAND, 22 Ala. 814

LIGON, J. The exceptions taken to the answer for want of tbe discovery sought by tbe bill, upon first inspection of tbe record, will appear strikingly well taken; and when they are viewed only in reference to tbe state of tbe pleadings when tbe answer was filed, and our own statute prescribing the character of such an answer as is required in order to set aside a decree pro confesso, it is difficult to perceive a good reason for overruling or disallowing them. The statute (Clay’s Dig. 251, § 89,) provides, that no decree pro confesso shall be set aside, but oil filing a Ml and complete answer to tbe bill.

And this should, doubtless, generally extend to all parts of the bill. In a case thus situated, no plea or demurrer can be allowed. The rule was evidently intended to hasten a fair trial on the facts or merits of the case, regardless of those irregularities or defects in pleading, which, at an earlier stage of the proceedings, might have been fatal on demurrer, or, at least, might have caused an amendment, and thus brought about delay.

A case thus situated occupies the same place in our practice, which an English case does in theirs when a defendant has waived his right to plead or demur, and submits to file an answer. The books say, that such a defendant must answer “fully.” It is evident that the word “complete” in our rule, gives no strength to the sentence, nor does it enlarge the meaning. A “ full ” answer, is as extensive a term in describing one which is ample and sufficient, as though the term “complete” had been superadded. The latter is mere-tautology.

But the English courts never understood this rule to be so inexorable, as to compel them to bow before it, at the hazard of being driven to injustice; and long before the adoption of the New Orders in 1841, which expressly modified its rigour, a practice, which has now the force of a rule, of allowing partial answers, grew up among them.

These answers were mainly intended to avoid discovery in such cases as it could well be excused, by showing the court that the complainant did not fill the character which he claimed for himself in the bill, and was therefore not entitled either to the relief or the discovery he sought. 2 Dan. Oh. Prac. and Plead. 821-2; "Wlgram on Discovery 90,152. This was evidently a departure from the letter of the rule, but none from its spirit, or from the spirit and intention of all chancery rules.

These are mainly intended to fence out injustice and oppression from that court, so that equity, nnmixed by fraud, oppression or injustice, may, with unchecked hand, be dealt out to all its suitors. When our chancery rules were arranged and adopted in 1842, this modification had long existed in England as one of the rules of tbeir practice; and as it is not repugnant to our own rules, laws or institutions, it became incorporated as one of our rules by tbe adoption of tbe last rule of our practice. Clay’s Dig. 618, Bule 51.

Tbe same practice prevails in many of tbe States wbicb have adopted tbe English rule with respect to answers, when tbe defendant submits to file one. Hunt v. Grookin, 6 Ver. 462; Cuyler v. Bogert, 6 Paige 186; Methodist Episcopal Church v. Jaques et al., 1 Johns. Chancery Rep. 65. The case -under consideration falls legitimately within that class on account of which the rule was modified. If the matter of the answer be true, there is an end of the case. It alleges, that Cecilia Bentley and Lewis Young are slaves.

These plaintiffs are the only parties who really assert an interest in the property in controversy; and were it not for the coverture of the one, and the infancy of the other, there would be no need of any other party whatever. A slave can have no standing in a court of chancery in this State. He cannot hold property, and consequently cannot litigate the title to it. He is not subject to be sued, nor can any civil judgment or decree be rendered against or for him.

His person, his labor, and his earnings belong to his master, and are held or enjoyed by the slave only by permission of the master, and for him should he ever think proper to claim it. A being thus situated, cannot sue; and the fact that the plaintiffs are not free negroes, as they pretend to be, but slaves, may well form the matter of a partial answer, showing sufficient reason why no fuller answer containing the discovery sought should be filed.

If this power did not exist, there would arise a long and appalling list of oppressions, resulting from fraud or malice on one part, and carelessness or weakness on the other; and as they arise, the court would be without tbe power to protect its jurisdiction, or shield its suitors. In this case, if the matter of the partial answer be true, the plaintiffs come here under a false title, claiming to be free persons, when in fact they are slaves, and by this suppression of their status, they seek to litigate in this court in fraud of its jurisdiction.

Under these views of the power of the Chancellor over the rules of practice and pleading in his court, there was manifestly no error in disallowing tbe exceptions to tbe answer, until tbe question of tbe plaintiffs’ right to proceed at all could be first passed upon by tbe court. Nor do we think there was any error in reserving to tbe complainants tbe right to except for want of tbe discovery, if, on tbe bearing of tbe answer already in, it should be found they were entitled to it; for, if the answer of tbe defendant should turn out to be false, be would be allowed to .derive no advantage from it.

But we cannot well see whence tbe court derived its authority to direct tbe answer to stand for a plea, and to be tried as such. Tbe rules of practice fully j ustify its being received and treated as an answer, and we are not aware of any rule which allows an answer to be taken for a plea, although, under some circumstances, a plea has been ordered to stand and be beard as an answer. 2 Danl. Prac. and Pl. 800 and 801; Mit. Pl. 808-4; Story’s Eq. Pl. 699.

Nor do we think, under our practice, a defendant, after decree pro confesso, has a right to put in any defence by way of plea, any more than under tbe English practice be would have tbe right to do so after answer. Under both systems, it would be an anomaly to find a plea allowed at this stage of tbe proceedings. But it is fully in tbe power of tbe Chancellor to receive a partial answer, if tbe matter brought to bis view by it shows that tbe character in which the plaintiff appears by bis bill is a false one, and that, in fact, be has no right to call on tbe defendant to make tbe discovery be seeks.

And it will always be allowed, when it is apparent that, if tbe answer be true, the plaintiff would not be allowed to proceed, and tbe cause must terminate. We think, therefore, it would have been more regular, and consistent with tbe rules of practice, to have beard this case on tbe answer as such, and not to have ordered it to stand for a plea.

But inasmuch as tbe complainants have been allowed a full opportunity to test tbe truth of tbe answer, and to take proof to establish their right to be beard, and to tbe relief they seek, under tbe issue made on tbe answer as a plea, and as they did go on to take some proof, it is apparent that they have sustained no injury from tbe form in which tbe issue was tried in tbe court below; and as the irregularity only amounts to error without injury, no reversal can result from it. 2.

After what has been said in relation to the first assignment of error, it is scarcely necessary to add that there was no error in refusing tbe motion for an attachment to compel an answer. The court had already overruled exceptions to the answer on file, and in this we have seen there was no error. There being a sufficient answer on file, no attachment or other process could go to compel another.

The Chancellor had, in overruling the plaintiffs’ exceptions to the answer, reserved to them the privilege of renewing them, in the event it should be found they were free persons of color; but until that issue was tried, the rest of the case should stand still, especially as this preliminary issue might involve the fate of the suit. 3. The third assignment of error relates to the ruling of the court in disallowing the plaintiffs’ exceptions to the answer, when it was ordered to stand for a plea.

These exceptions were taken, because it is said that the slavery of the three colored plaintiffs is not alleged with sufficient certainty. The allegations in respect to the slavery of Cecilia Bentley and Lewis Young are clear and unequivocal. These are the only persons in whose behalf any equity arises against the defendant. Without the wife, Cecilia Bentley, and the infant, Lewis Young, the husband and next friend would have no standing whatever in this court. The suit of the husband and wife, in respect to the separate estate of the latter, is essentially the suit of the wife.

She has the entire interest in the corpus of the estate, and the decree must be for her use. Michan and Wife v. Wyatt, 21 Ala. 813. It matters nothing, therefore, whether the answer is sufficiently certain as to the slavery of Warren Bentley, the husband; if his wife is a slave, he can take nothing through her; and if the minor Lewis Young be such, his next friend must fail. ■ 4. The only remaining question arising on the assignment of errors, relates to the decree dismissing the bill, on the issues tendered by the answer on file.

The proof is clear and un-contradicted, that the mother of Cecilia and Lewis Young was, at the time of their respective births, a slave, and the record shows no act of manumission as to them. Their condition must follow that of their mother at the time of their birth, and it cannot be changed but by

an act of the ownei’. That which the law requires to be done, in order to invest them with freedom, is not preyed to have been performed; so that, from all that appears, they are still slaves. Under these circumstances, they are forbidden, by the policy of our law, from receiving property by inheritance, or taking and holding it in this State by deed, bequest or devise. Atwood’s Heirs v. Beck, Adm’r., 21 Ala. 590; Trotter v. Blocker and Wife, 6 Porter 292. Nor can they sue to enforce a claim to property.

Since these children cannot do so, neither can the husband of the one or the next friend of the other, as they only represent the interest of the wife and minor, whose suit this really is, and who, we have seen, cannot be heard in a court of chancery in their present condition. But it is contended, that, although these plaintiffs may be disqualified from suing generally, yet circumstances exist between the defendant and themselves, which hinder him from setting up their disqualification. In other words, that by his own acts Cleaveland is estopped from denying their right to sue.

It is shown, by his answer, that he has received deeds for real estate made to him as trustee for these children; and it is further admitted that the possession of these lots has been recovered from him in actions at law, by those who represented the interest of Cecilia and Lewis Young, without any defence on his part. The defendant, however, insists in his answer that he instructed his counsel in the action at law to defend them, but that he was misunderstood, and thus judgment by default was taken against him. Be this, however, as it may, it cannot work an estoppel in favor of these plaintiffs.

Mutuality is an essential ingredient in all estoppels; and as these plaintiffs, being slaves, are not answerable civilly, as they are subject to no suit, as no civil libability ever attaches to them, and they can be neither bound by a covenant, nor hindered by an estoppel, the law will not allow them to claim that of another which he could not set up against them, or, rather, which he could not set up against their owners, who are entitled to whatever property the slave acquires.

It results from what has been said, that the decree dismissing the bill must be affirmed, at the costs of Warren Bentley and Edward Parker, both in this court and the court below.