
    MORGAN, Ex'ix. versus CRABB.
    QUESTIONS IN THIS CASE.
    
      Upon relief in Chancery on impertinent testimony.
    
    
      As to suhjec iug assets to payme/il of debts, in Chan- . eery.
    
    
      Relative to rights of parties not litigating a cause.
    
    1. Chancery will not afford relief upon evidence — material allegations to support which, are not contained in the hill.
    2. Chancery will not subject the personal assets of an estate, (which cannot be reached by execution at law,) to the payment of a c.i editors demand, unless such creditor has obtained a judgment against the debtor ; and an execution thereon, has been returned nulla bona.
    
    3. Where an appeal is taken upon a decree, and it appears that neither of the parties litigating the cause, are entitled to the subject matter of the decree; but a third person, not a party to the appeal — this court cannot reverse in favor ofthe latter.
    In error from Tuskaloosa Circuit Court.
    This was a case in Chancery. George W. Crabb, by bill, set out, that, in 1829, one Richard Dennis, junior, executed to him and one Powell, a deed of trusl, of certain slaves, for the.benefit of his creditors — among whom was Richard Dennis, senior : that, the trustees having sold the slaves, and made distribution of the funds, found the sum of one thousand dollars due and owing to Dennis, the elder : that Richard Dennis, senior, being deceased, administration-of his estate had been committed to one Glover; who, together with Samuel B. Ewing, Samuel Morgan, and Thomas R. Bolling, were laying claim to the said money. The complainant, therefore,. filed this bill, to compel the claimants to litigate their conflicting claims; and to obtain a decree au thorising the payment, of the said sum to the party legally entitled thereto.
    ' The defendant, Bulling, claimed the amount as a creditor of Richard Dennis, senior. Having become the indorsee of a promissory note, executed by said Richard Dennis, senior, he obtained judgment, thereon against, the admiuistratoi ; and subsequently took out. an attachment : on this attachment, the said trustees, and Richard Dennis, junior, were summoned, and against, the latter, a judgment, finally obtained. Upon this debt, and judgment, Bolling, therefore, based his claim.
    Ewing claimed the fund, under certain transactions between himself and the younger Dennis; but none of these matters were sustained by proof.
    Glover did not set up a claim further, than as the administrator of the elder Dennis.
    Morgan having died, his- administratrix asserted his claim, as based upon au order, given by Dennis, senior, to her intestate, upm the said trustees; and upon the indebtedness of Dennis, senior, to said Samuel Morgan.
    In reference to the order, it was proved that, it was given by the elder Dennis, without consideration; and was intended to be xested in Morgan, as a trust fnmffor the use of Dennis’ illegitimate children.
    Upon this state of facts, the Circuit Court, decreed the money, first, to the discharge of Bolling’s claim, and secondly, to that, of the plaintiff in error.
    On this decree, Lucy Morgan prosecuted a writ of error, to this Court; and assigned for cause of reversal, the preference given by the Chancellor, to Bolling’s claim.
    
      Messrs. Ellis & Peck for the plaintiff in error— Mr, Thornton, contra.
    
   Hopkins, J.

In this case, Crabb, one of the defendants in error, had in bis hands the sum of one thousand dollars, as a trustee of the estate of one Richard Dennis, sen. deceased: to whi h each of the other defendants, and the plainliff in error, made a distinct and exclusive claim. For ihe purpose of compelling these persons, one of whom, was the ad-mi nist rator of Dennis, to set tie their conflicting claims, and to obtain the authority of a decree for the payment. of the money, which he wished to make to whoever was eutided to receive it, he filed his bill of interpleader against, all of them.

The defendant, Glover, who is the administrator of Richard Dennis, sen. claimed the money in his representative character only.

The answer of id wing was supported by no proof

The answer of Bolling stated, that be bad commenced a suit, by attachment, against Richard Dennis, sen. in which he sued out a summons garnishment against. Crabb, and one against. Richard Dennis, jr. That he obtained a judgment, against the latter, as the debtor of Richard Dennis, sen. ; but what was the result of the suit- by attachment, or of the summons to Crabb, the answer does not disclose. In this answer there is an allegation, the effect of which is, that, the facts staled in it will more fully appear by reference to the records remaining in the Court., in which the answer was filed, and the suit was pending. ■

The judgment against Richard Dennis, jr. could not be satisfied on an execution out of the assets of Richard Dennis, sen., and gave Boiling no right in equity, to tbe fund in the hands of Crabb An ori-gutal record of the law side of a Circuit Court, is competent evidence, on the equity side of the same Court, in any case, in which an authenticated transcript. of the record, would be. But, as there was no averment, hi the answer of Bolling, that he had a judgment againsi Richard Dennis, sen , he was entitled to no benefit from the proof of that fact. The reference, in his answer, to the record, was not, so made as to make the whole record a-part, of his answer. The. record was referred to, merely to prove the facts which were slated in the answer.

Tlie principle is well set!led, that no relief can be given, but on proof, pertinent to the statement of fads, relied on. 1o obtain it A party is no better entitled to relief, upon evidence, without the n.ateri-' al allegations, th n on such allegations, without sufi ficieut proof

But, had the judgment, against Richard Dennis, sen., been st ited in the answer, the proof of it would not entitle Billing, in equity, to the loud, which could not be reached by an execution upon the judgment To give a creditor a right to the exercise in his behalf, of the power, which Courts of Equity have, to subject personal assets, on which no execution at law, can he levied, to the satisfic.tion of his demand, he m ist h ive, not only a jo Igrnent against his debt- or, but an execution, with a return o$ nulla bona, before he makes his application for aid, 1o a Court, of Equity Vandegraaff et al vs. Medlock, et al

'Fhe plaiulilf in error claimed ihe fund, on an order, drawn upon the. trustee, for the amount of it, by Richard Dennis, sen., in his life-lime, in favor of her testator. It was proved, by the deposition of one witness, that, the te.siator, in his life-time, informed the witness, that the order was not drawn for any debt due to hirnself, but, for ihe use of some illegitimate children of the drawer. To another witness, the testator said, he had hut little interest in the order. Some small expenses incurred -by him, for the drawer, during his last sickness, lie was to retain-out of the amount, when collected, and the balance, he was to hold, as a trustee, for the benefit of the illegitimate children of Dennis, who drew ihe order. It is slated, in the only other deposition which relates to the consideration of ihe order, ihat, at the time it, was,drawn, the drawer was indebted to Morgan, the testator, but, in what amount the witness did ‘not know.

The proofs in the cause, show, that Dennis, the drawer, was insolvent, at the date of the order — and the proper inference from this fact is, that he drew the order, to defraud his creditors. It is not necessary to decide, whether, upon a contract, fraudulent, in part, so much secured by it, as was honestly due, may he recovered. In this case, the evidence did not. show that any particular sum was due. When proof is so indefinite, as not to fix any sum, or one of two sums, or a sum above one amount., and under another, as the amount, of the debt; there ought, to be no decree, for any thing. The decree of the Circuit Court directed that the (judgment of Bolling, against the administrator of Richard Dennis, sen., who was made a party to the suit, by attachment, after the' death of his intestate, should be first satisfied, out of the trust fund, and the balance paid to the plaintiff in error, upon t.he order. We think the whole fund should have been decreed to the administrator.— But, as no one has appealed, or prosecuted a writ of error, but one, who had a decree for something, when she was entitled to nothing, we can do no less than affirm the decree.

The settled practice of this Court, prevents the notice of any error, which is not presented by an assignment. The decree can not be reversed, for an error, which does not. injuriously affect the rights of the plaintiff in error; and the party who was injured by it, makes no complaint.

The view we have taken of the subject, was thought necessary, to prevent anjr mistake in future, as to the ground, upon which the decree is affirmed.

Let the decree be affirmed.

Collter, J.

In the Circuit Court, the only controversy, was between the plaintiff in error, and the defendant, Bolling — consequently, the claim of the administrator of the élder Dennis,-was not examined. Had it been brought to the view of the Court, the fund would certainly have been decreed to him. It is, however, more than probable, that no injury will result from the decree — especially, if Bolling was the only creditor, who gave notice of his demand, to the administrator, within eighteen months from the grant of administration.

L 
      
       Lit R339—10 Weat 189
     
      
       4 John. Ch 671. 687.
     
      
      6 Page 389, of this vol.
     