
    ROWLAND AND HEIFNER vs. LADIGA’S HEIRS.
    1. A female belonging to the Creek tribe of Indians, whose husband was dead, but with whom a grand-ehild resided, whose parents were also dead, is “ the head of a family” within the meaning of the second article of the treaty of March 24, 18S2, between the United States and that tribe of Indians.
    2. Every head of a family of that tribe who resided on a half section of land, and selected it as his reservation under the treaty, became thereby entitled to it; and his right could not be divested by the refusal of the locating agent to locate him upon it.
    3. The head of a family who made his selection, and was located upon hi s reservation, could only bo divested of his right within five years, by a sale in accordance with the provisions of the treaty, or by abandoning the land; hut if h-> neither sold or abandoned it within that time, his title became perfect and indefeasible.
    4. Where an Indian reservee, the head of a family, made application to the locating agent to be located on her reservation, which application was improperly refused, and she continued to reside on the land until interrupted in W possession by intruders, and then went to a relative’s to reside, this is not an abandonment of the land, notwithstanding- she is afterwards removed from Bii country by the force of the Government.
    fi. The right of an Indian reservee, which he has not conveyed by sale, no,by abandonment, descends to his heirs at law.
    6. When evidence is objected to as a whole, and a part of it is admissible, ;ho objection may be overruled.
    
      1. To show that she was “the head of a family,” plaintiff had proved that her-grand-ehild, a boy whose parents were dead, resided with her; and the.', offered to prove that she bought clothes for him, to which proof defends!-» objected. Held: That the evidence was admissible.
    8. If trespass to try title is brought to recover the freehold, and the plaintiff o;-s pending the suit, it may be revived in the names of his heirs at law.
    
      9. The eout'Om'iy require some evidence of heirship, before allowing the suit to he revived, but its action in reviving without sufficient evidence of the heirship cannot be reviewed in the Appellate Court, even if the revivor is made without any proof at ail; for the defendant may contest the heirship upon the trial before the jury.
    10. in questions of pedigree, the declarations of deceased members of the family have always been received in evidence, to establish the parentage or descent of the particular individual whose relationship is the subject of investigation
    11. One who has title to land may bring one suit against all the tenants in possession of it, although they may severally possess distinct portions of it: and the defendants may protect themselves from a joint judgment for damages by showing the character and extent of their possession.
    12. Where the plaintiff’s right to recover depends upon three or more distinct facts, a charge which assumes that he may recover if only two of those facts are established, is erroneous, if unexplained by other instructions; and the judgment will be reversed for the error, although the bill of exceptions recites that “other charges were given,” which are not set out.
    (Phelan, J., dissenting, hold, that if an affirmative charge touching the merits of the action is correct,'it should not be held erroneous because it doe3 not likewise embrace formal and technical fnafters, unless exception is taken in the court below for that reason.)
    ÍÍRROR to the Circuit Court of St. Clair.
    'Pried before the Tíou. John I). Phelan.
    This was an actiou of Tkhspass, brought by Sally Ladiga, a Creek Indian, against Richard D. Rowland and Peter Heif-ner, to try titles to the cast half of section two, in township fourteen, range eight east, of the Coosa Land district. The suit was commenced in the Circuit Court of Benton county: and a trial was there had, at Rio April term, 1846, which resulted in a verdict for the defendants: but a new trial was granted, and tbe venue was changed to tbe county of St. Clair, on the condition that the plaintiff paid all the costs that had accrued, by the first day of August then next following.
    At the May Term of the Circuit Court of Benton, an entry was made upon the record, showing that the clerk had failed to transmit the papers, as he had been directed, to the Circuit Court of St. Clair; and the order for the change of venue was renewed, and the clerk directed to transmit- all the papers .and orders in the cause. At the September Term, 1847, tbe plaintiff moved tbe Circuit Court of St. Clair, to have the ■cause entered upon the docket of that court, as one there pending, and produced the papers and orders showing the change of venire. The defendants resisted this motion, on the ground that the cause had been finally disposed of by the Circuit Court of Benton; but the court granted the motion, and the defendants excepted.
    At the March Term, 1849, the death of the plaintiff, Sally Ladiga, was suggested, and the present defendants in error moved the court to revive the suit in' their names as her heirs at law; and in support of the motion, they offered in evidence the deposition of one Frye, and also proved the common reputation among the Indians that they were the children and grand-children of said Sally Ladiga.. The defendants objected, that the evidence was insufficient to establish their heirship; but the court, deeming it sufficient, granted the motion, and ordered the suit to be revived in the names of the present defendants in error as plaintiffs, and informed the defendants that they might contest the heirship of the plaintiffs, either by special plea in bar, or under the general issue-before the jury.
    A trial was then had, upon the plea of “not guilty,” pleaded separately by each defendant, and a verdict of “ guilty” was rendered against them, and five dollars damages assessed against each; and it was further found by the verdict, that the defendant Rowland was in possession of the north east quarter of said half section of land, and the defendant Heifner in possession of the south east quarter. The plaintiffs remitted' the damages assessed by the jury, and the court rendered judgment in their favor, that they recover of said defendants the land in their declaration mentioned, and the costs of suit.
    During the trial a bill of exceptions was taken, which shows, that Sally Ladiga was a Creek Indian, and had been enrolled as one of that tribe by the agent of the General Government, under the treaty of March 24, 18S2; that she resided on the land in controversy, both before and after that treaty, and had a cabin upon it, and also a field; that she had no husband living at the date of the treaty, but that she had raised a family of children, all of whom had married and settled off to themselves; that the only persons who resided with her -were, an Indian woman named Letter and ber child, and also a boy named Ar-cbee-cbee; that Sally claimed tbis boy as ber grand-son, and there was proof tending to show that be was such, and that bis parents were dead. Tbe proof also tended to show, that Ar-cbee-cbee resided with Sally, both before and after tbe treaty; bnt there was a conflict in tbe evidence, as to whether be was related to ber or not. Tbe Indian woman Letter was not related to Sally, but lived with ber, and cultivated ber field for ber; and it further appeared, that Letter bad been located under tbe treaty as “tbe bead of a family,” upon a half section of land.
    The testimony also showed, that Sally Ladiga applied to tbe locating agents of tbe Government, and claimed to be located as “tbe bead of a family,” on tbe ball section of land in controversy; but ber application was refused, on tbe ground that she was not “tbe bead of a family.” Her first application was made to M. M. Houston, a locating agent, who testified in tbis cause, that be determined upon evidence satisfactory to him that she was not entitled to a half section of land, as tbe bead of a family under tbe treaty. After failing in ber application to Houston, she applied to other locating agents, all of whom rejected ber claim. She continued, however, to reside upon the land, until 1833 or 1884, when, in consequence of some difficulty that arose between ber and one Smith, who, it appears, entered upon tbe land, and opened a field including ber cabin and field, she left tbe place, and went to reside with a relative. Some time, however, in 1838, she was found by a soldier of tbe United States army, occupying a shelter upon or near tbe land, and was carried by him to an emigrating company about to start west;, and then at Boss’ Landing; and in tbe fall of that year, she did start with said company to Arkansas, but never reached tbe west bank of tbe Mississippi river.
    There was also proof tending to show, that some of th; white settlers used their influence with Houston, tbe locating agent, to prevent the allowance of ber claim, by representing, and expressing their opinion, that she was not tbe bead of a family; and there was also evidence going to show that tbe boy Arcbeecbee was not relatedto ber; that on one occasion, she represented tbe Indian woman Letter to be a part of her family, although she was not related to ber, and bad herself been located on a balf section of land as tbe bead of a family; tbat sbe bad also presented to tbe agent ber children, as parts of ber family, although they were married, and settled off to themselves; and tbat tbe boy Arcbeecbee and tbe Indian woman and her child were tbe only persons living with Sally at the date of tbe treaty.
    There was also a conflict in tbe evidence, as to the manner in which Sally came to tbe camp of tbe emigrating company, some of it going to show tbat sbe joined tbe company willingly and of her own accord; this proof was introduced by tbe defendants. It was proved by one Groodwyn, a witness introduced by tbe plaintiffs, tbat in March, 1832, Sally bought some clothes from him for tbe boy Arcbeecbee, and told witness that be was the same boy witness bad seen with ber once before in tbe year 1831“ Tbe defendants objected to this testimony of Goodwyn’s; but their objection was overruled, and they excepted.
    There were also several other objections made to parts of tbe evidence introduced, which were overruled; but it is not thought necessary to state them.
    Tbe defendants introduced, as evidence of their title to tbe land, two patents from tbe President of tbe United States, which show, tbat the balf section of land in controversy bad been selected and sold, under the provisions of tbe treaty, for tbe benefit of tbe orphan children of tbe Creek tribe. Tbe patent for the north east quarter section was issued to Rowland, and tbe patent for tbe south east quarter to Heif-ner; and tbe proof showed, tbat each defendant occupied tbe quarter section which bad been granted to him.
    Upon this state of proof, the bill of exceptions recites, tbat “among other things, tbe court charged tbe jury as follows: That if each of the defendants was in possession of a different quarter soction of tbe .half section of land in controversy, and each claimed title to tbe quarter section in bis possession, and there was no connection between tbe possession or title of tbe two defendants; and if they find tbat Sally Ladiga was entitled to the land, as a reservation under tbe Creek treaty of 1882, they must return a verdict for tbe possession of each quarter section separately, against tbe defendant in possession of tbe same.”
    
      The defendants asked the court to charge the jury:
    1. That if they believed from the evidence, that defendants Rowland and Heifner owned and possessed different quarters of the half section of land in controversy, and that Rowland never owned, possessed, or had any connection with the possession of the south east quarter, nor Heifner with the north cast quarter of the land sued for, they must ñnd for the defendants;
    2. That if they believed from the evidence, that defendants owned and possessed different quarters of the half section of land in controversy, and that Rowland never owned, possessed, or had any connection with the possession of the south east quarter, nor Heifner with the north east quarter, then plaintiffs arc entitled to a verdict against only one of the defendants, and that must be for the quarter section which such defendant possessed at the commencement of the suit ;
    3. That if they believed from the evidence, that Rowland and Heifner owned and possessed different quarter sections of the half section of land in controversy; that Rowland never owned, possessed, or had any connection with the possession of the south east quarter, nor Heifner with the north east quarter, then plaintiffs can have a j udgment against but one of the defendants, and that must be for the quarter section Avhich such defendant possessed at the commencement of the suit; and the plaintiffs must elect against which one they will proceed for a verdict, and if they do not make such election, then the jury must find for the defendants.”
    The court refused each one of these three charges, and the defendants excepted to each refusal.
    The court charged the jury: “ That Heifner and Rowland, as purchasers from the General Government of the United States, could not occupy a more favorable position in this controversy, than the Government itself; that if Houston and the other locating agents, officers of the General Government, refused to locate Sally Ladiga, and rejected her claim, when she applied for the location, then it would not lie in the mouth of the General Government to say, that Sally Ladiga had abandoned lier claim to a reservation under the treaty; and that consequently the defendants could not be heard to say, that she had abandoned the land.”
    
      Further: “That if it appeared from the evidence, that Houston rejected the claim of Sally Ladiga, after investigation, upon the ground that she was not the head of a Creek family under the treaty, although it rnay have been shown in such investigation that she had a graud-son, an orphan, living with her, in her house, at and before the date of the treaty, such rejection was entitled to no consideration against the plaintiff’s demand in this suit; hut if, on the contrary, it appeared that he rejected her claim as the head of a family because it was shown in such investigation that she had no child or grand-child living with her at the date aforesaid, then said rejection was a fact entitled to much consideration, against the plaintiffs and in favor of the defendants;” to the former part of which last charge the defendants excepted.
    The plaintiffs in error now assign sixteen errors in the record of the proceedings in the court below, embracing every thing to which exception was taken, in the change of venue, the revivor of the suit, the admission of evidence, the charges given and refused, and the rendition of final judgment. These different assignments of error will be readily understood from tbe foregoing statement of facts and the brief of tbe counsel for plaintiffs in error.
    S. F. .Rice, A. J. Walkee and J. B. Maetih, for plaintiffs in error :
    1. In the action of ejectment or trespass to try titles, the general issue alone is to be pleaded; and under it (as under the general issue in assumpsit,) any thing may be given in evidence, which in law can defeat a recovery in favor of the plaintiff Wood v.-Jackson, 8 Wend. 9,40. Jackson v. Rowland, 6 Wend 666.
    2. It is good hi abatement or in bar, that the plaintiff was .dead at the commencement of the suit. Jcnks v. Edwards, 6 Ala. 148.
    3. It was erroneous to order the revival of the suit until it was shown affirmatively by plaintiffs that Bally Ladiga was alive at tbe commencement of the suit. And it was also erroneous to give the charges which were given; one of which, at least, asserted plaintiff’s right to recover, without referring to the jury the question, whether she was dead at the commencement of tbe suit, although it is expressly stated, in the bill of exceptions that there was a conflict on this and every other branch of the evidence.
    4. All proceedings in a suit at law are stopped by the death of the sole plaintiff. The order for the change of venue is utterly void, because it was made after the death of the sole plaintiff! Mansony et al. v. Bank, 4 Ala. Rep. 751.
    5. The order for change of venue is void for another reason, xo-wit: that the Circuit Court of Benton did not intend its final judgment rendered on verdict at its spring term, 1846, should be set aside or its force arrested unless the costs should be paid by the 1st day of August, as a condition precedent. The Circuit Court of Benton did not, by implication or otherwise, reserve control of said jndgment beyond the 1st day of August, 1846, and it could not act upon it after that time. 'Edwards v. Lewis, 18 Ala. Rep. 496; Lands v. McClellan, 6 Cowen 582; Noland v. Locke, 16 Ala. Rep. 52; Walker v. Hale, 16 Ala. Rep. 26; Stephens v. Broad-nax, 5 Ala. Rep. 258; Orothers v. Ross, 5 Ala. Rep. 800.
    6. The failure of the plaintiff to have any action whatever taken by the Benton court in the case at its fall term, 1846, was a discontinuance of the cause or abandonment or waiver of the conditional offer of the new trial; and this view is strengthened by the entry at the spring term, 1847, which does not even pretend that the clerk or the court had omitted, any duty — thus proving that the only default was the default of the plaintiff’. The Circuit Court of Benton had no power to act in the case at spring term, 1847, even under the decision of Reese v. Billing, 9 Ala. Rep., where the party complied with the offer for the new trial at the next succeeding term according to the terms of the offer and within proper time. Suppose, however, that Billing had failed to comply at the next succeeding term after the order, and had waited until the second term, (as the plaintiff' here did) it is clear the decision would have been different. The order at spring term, 1847, treats the order of spring term, 1846, as inoperative as to the change of venue, and orders a change of venne de now upon a new application therefor by plaintiff. If inoperative as to the change of venue, it could only be so by tbe default of plaintiff or her refusal to accept and comply with the conditionpre-
      
      cedent, and tbis would render that order of spring term, 1846, void and inoperative in toto — as to new trial as well as change of venue.
    7. The venue in such an action as this, is ¡occd. And the Circuit Court of St. Glair county could not have or exercise jurisdiction except by a regular and valid order for the change of venue. Clay’s Dig. 342, § 162; ib. 343, § 167; Boynton v. Foster, 7 Mete. Eep. 415. . Whenever the action of a court is void, no exception need be taken. 16 Ala. Eep. 730 ; 13 Ala. Eep. 529.
    8. In this and all other cases in which the Government acts through the medium of agents, the power exists and may be rightfully exercised, to examine and ascertain, if the prerequisites of the law have been complied with. Eosser v. Bradford, 9 Porter 358.
    9. Inasmuch as this suit, was commenced long after five years had elapsed from the date of the treaty of March, 1832, and by an Indian to whom no patent has ever issued, such Indian cannot lawfully recover without proving both the following propositions, to-wit: I. That such Indian “at the end of five years” from the treaty was “entitled” to the selection ; and II. That “ at the end of the five years," such Indian was “ desirous" of “remaining” in the country. 15 Ala. Eep. 531; 13 Ala. Eep. 801. See Edwards v. Lewis, 18 Ala. Eep. 495, as to estates to arise on a condition precedent. And even if she desired to remain in the country, still if her children and grand children had n'o such desire, but voluntarily removed from it and never have returned, they cannot recover. The condition of remaining in the country ajjplies to them as well as to her. 13 Ala. Eep. 800.
    10. The desire to recover the land, is different from the desire to remain in the country. The bringing of a suit more than six years after the treaty, is by no means conclusive proof of a desire to remain in the country; especially when the proof also shows that the suit was probably brought after thé death of the plaintiff, and has been vigorously prosecuted for at least ten years after her death in her name, through all the courts and the venue changed, before any offer to revive, and when it is shown also that within the five years after the treaty she sold the land to Gooden & Green, and that since 
      
      her death slie has given security for costs in two Circuit Courts (Benton and St. Clair). If she had desired to remain in the country, that desire could have been made known or manifested very satisfactorily between the lapse of the five years from the treaty and hex removal to the west — a period of more than one year and five months. It was essential to her right that she should have made it manifest within the period elapsing between the expiration of the first five years of the treaty and her removal to the west (or the beginning of -this suit). She had no right to sue after the lapse of the first five years from the treaty, until she did manifest such desire. Yet there is not a particle of evidence of such manifestation of desire, after the lapse of five years from the treaty! And it was after the lapse of these five years, that Congress passed an act, which in part or in whole constituted the authority under which the defendants afterwards purchased and procured patents. The argument for defendant in error assumes that because Sally Ladiga was not in actual possession of the land, it was impossible for her, during seventeen months, to make known in any way her desire to remain in the country ! ! !
    
    11. The fact that she sold the land to Cooden & Green, as offered in evidence, was admissible (although the sale might have been void) for tlie purpose of showing that sbe bad no motive to remain in the country — no intention to remain — and also for the purpose of affecting the credit of Gooden (a witness for her). Cromelin v. Minter, 9 Ala. Bep. 601; Johnson v. The State, 17 Ala. Bep. 618.
    12. The charge of the court is erroneous, because it withdrew from the consideration of the jury the following important questions of fact, as to winch there was a conflict of evidence and the burden of proof on the plaintiffs, to-wit: E. Whether or not l:al the end of five years” from the treaty, Sally Ladiga made known her desire to remain in the country: II. Whether or not Sally Ladiga was not dead at the commencement of this suit; III. Whether or not the present plaintiffs were the heirs of Sally Ladiga. Hall v. Heirs of Wilson, 14 Ala. Bep. 295. 1Y. Whether since her death her heirs have mo/nifested a desire to remain in the country. Wells v. Thompson, Ala. Bep. 800. (The heirs were not forced out of the country.) Y. Whether Sally (although “entitled” 
      during the five years) was entitled “at the end of five years" from tbe treaty.
    Tbe charge of tbe court is also erroneous in bolding tbe Government and tbe defendants estopped by tbe refusal of tbe locating agents to locate and tbe rejection of ber elaim “when she applied for the location,” (that is, in 1832, 1833 or 1834, and within the first five years after tbe treaty), from proving that Sally “at tbe end of tbe five years” did abandon tbe land or was not desirous of remaining in tbe country!!! Tbis was no estoppel, Inge v. Murpby, 10 Ala. Eep. 885, and it is very clear that if tbe question bad been left to tbe jur}r untrammelled by tbe supposed estoppel, they would bave found that sbe did abandon tbe land or that “ at tbe end of five years” sbe was not desirous of remaining; for tbe proof is distinct tbat sbe left tbe land without any Government force or interference, voluntarily, “in 1834, and went to Ball Play creek and never returned upon said land;" tbat sbe bad previously sold the land to Gooden & Green and given ber bond for title; tbat sbe remained in tbe country until “tbe fall of 1838,” (a period of some four years after sbe had voluntarily left tbe land,) when sbe with tbe remainder of tbe Indian tribe removed west. Sbe bad abandoned tbe land and lost all right or title or just claim to it long before hen' removal to the west with the Indian tribe — by ber conduct and omission to make known ber desire of remaining in tbe country “at the end of five years ” from the treaty or within a short time thereafter — when sbe was free from force of every description and bad full opportunity to make known such desire. Tbe error of a charge withholding any material question of fact from tbe consideration of the jury, is not cured, although tbe record contains evidence which seems to make out the fact so withheld from tbe consideration of tbe jury. The reason is, tbat neither tbe Circuit nor Supreme Court can iveigh evidence in such case. Gilliam v. Moore, 10 Smedes and Marsh, 138.
    13. Tbe phrase “head of a family" necessarily implies at least two persons, between whom there is dependancy. Allen v. Mannassee, 4 Ala. Eep. 554.
    Of course, where there are only two persons in tbe family and one of them dies tbe family relation is dissolved, and there is then no “head of a family” — '“no bead” — no “family.”
    
      14. Where illegal or irrelevant evidence on any point is admitted, the error of such admission is not cured, although the legal evidence on the same point seems to have been sufficient to prove the point; because the appellate court cannot tell whether the jury based their finding on the legal or illegal evidence or on both together, and also because the appellate court cannot weigh evidence. Whitman v. Bank, 8 Poter, 258; 10 Smedes and Marsh, 130-38 supra.
    
    15. It is the duty of the Circuit Court always to protect the jury from the admission of irrelevant or any other incompetent testimony. Mardis v. Shackelford, 4 Ala. Eep. 501.
    This duty cannot be evaded by the court or transferred to the jury, by leaving it to them to say tohal weight they will give to the irrelevant or incompetent proof. The court must primarily decide upon its “ADMISSIBILITY;” and whenever irrelevant or any other kind of incompetent evidence is admitted, it is a fatal error, wherever “ the illegal is not withdrawn, or the jury are not explicitly instructed to disregard it? (not to weigh it at all.) DeG-raffenreid v. Thomas, Ala. Eep. 681.
    
      n Illegal or improper evidence ought never to be confided to the jury, however unimportant it may be to the cause.” Brown et al. v. May, 1 Munford, 288.
    16. Although Sally Ladiga might have been “entitled” to the land, yet the present plaintiffs below cannot recover without proving to the jury that they had the legal title and that they were the heirs of Sally Ladiga. The general issue put in issue the legal title and the fact whether the present plaintiffs below were the heirs of Sally Ladiga. Hall v. Heirs of Wilson, 14 Ala. Eep. 295.
    
      17. It was error to admit “the common reputation amongst the Indians of the Creek tribe” to prove that the plaintiffs “ were the children and grand children of Sally Ladiga.” White v. Strother, 11 Ala. Eep. 720; Blann v. Beall, 5 Ala. Eep. 357.
    18. The evidence is clear beyond dispute, that the present plaintiffs below cannot recover, even if it were conceded that /Sally Ladiga could have recovered. They removed voluntarily from this country, and although Sally Ladiga has been dead some thirteen years, they have never returned or indicated any 
      intention to return. They cannot have the land, after this voluntary removal and voluntary remaining out of the country, and without any intention of remaining in this country. 13 Ala. Eep. 800; 9 Ala. Eep. 601; Edwards v. Lewis, 18 Ala. Eep. 495, and authorities'cited there as to estates to arise on condition precedent; Pope et al. v. Hamner, 5 Ala E. 433.
    The first affirmative charge given, is wholly irreeoncileable with this view; because it asserts distinctly that the present plaintiffs were entitled to recover if the jury found that “Sally Ladiga was entitled to the land as a reservation under the Creek treaty of 1832.” This charge relieved the plaintiffs from the proof that Sally Ladiga was “entitled” “at the end of five yearsfi and from the proof of other essential matters, and is affirmative, and must work a reversal.
    White & Paksohs, and Joi-iN T. MoegaN, for defendants.
    1. The Act of January 16th, 1832, Aiken’s Digest, 1st edition, page 225, § 18, extended to the Creek tribe of Indians all the statute laws of Alabama, with certain exceptions, and, as a necessary concomitant, the rules of the common law, as applicable to our institutions and the genius of our government, were also extended to said tribe. This was before the treaty of March 24th, 1832, which, when adopted and certified, became the supreme law of the land. Wall v-Williams, 11 Ala. Eep. 826.
    2. There is nothing in the treaty which in any manner alters the laws of descent, made applicable to the Indians by the Act of 26th January, 1832 ; and any estate, real or personal, which the heirs at law of a Creek Indian would have been entitled to before the treaty, they would be at least equally entitled to after the treaty.
    3. Before the treaty, according to the case of Chinnubbce v. Nicks, (3 Porter, 362,) the right of occupancy, to no part of the territory, could be sold by any individual of the Creek tribe of Indians. It is not necessary to a correct decision of this case, to disputo the diclmn mentioned, but the observation of the court in that case was evidently made without at all considering the 14th section of the Act of 1836. Aikens’ Digest, 225, § 25.
    The decision was evidently based upon the authority of United States v. Clarke, 9 Peters, 168, and other cases there referred to, but those decisions did not touch upon the question, whether the general principle stated should not be controlled by legislation in the States where those tribes were situated. In Worcester v. The State of Georgia, 6 Peters, 580, the right of the States to legislate for tribes of Indians who had lost the power of self-government, and were surrounded by whites, was clearly admitted, but that case turned upon the treaty stipulations between the Cherokees and the United States, The legislature of the State of Alabama, before the treaty of 1833, at Washington, for the Creek tribe of Indians, must be presumed to have rested upon the ground stated in the case in 6 Peters, 580. The argument is conclusive, when the terms of the after made treaty are looked to. The treaty does not secure to the Indians any law-making powers in said territory, but excludes the idea, by a direct guarantee of the exclusive right to legislate for themselves, west of the Mississippi. The nationality of the tribe was destroyed, until they should emigrate west of the Mississippi. The twelfth article of the treaty regards the Indians then in this territory as a part only of the nation. The twelfth article provides a fond to defray the expenses of such Indians as before that time had emigrated.
    4. These citation^ are conclusive to show the power of the State Legislature before the treaty to extend its jurisdiction over the Creek territory and the Creek tribe,
    The reservation of' ninety sections to the principal chieis, was evidently intended to embrace also a reservation made to friendly chiefs, in the first article of the Treaty of Capitulation, made August 9, 1814. U. S. Statutes, 7, page, 120. That article granted the lands to the chiefs and their descendants, and no provision has been made by subsequent treaty, or by Congress, to give patents to the friendly chiefs provided for in the treaty at Port Jackson. The provisions of that treaty were carried out in the treaty of Washington, and not abridged in any manner.
    5. The subsequent legislation of Congress, on the treaty of 1832, (Statutes at Large, vol. 5, 186,) shows that Congress respects the rights of inheritance of the descendants of Creek Indians, and confirms sales made by them of lands belonging to the deceased reseiwoe.
    
      The whole power of legislation in relation to said lands is in the hands of Congress, subject to the restrictions of the treaty and the rights vested under the treaty; and the laws passed by Congress are not merely legislative construction, but stand in the light of an admission on the part of the government, that the descendants of Indians are entitled to the land.
    6. The decisions of our court upon the treaty of 1882, necessarily settle the law in relation to the hereditable quality of the estate in the hands of the reservee. In Chinnubbee v. Nicks, 8 Porter, 366, the court define the title to be a de-feasible fee, a qualified fee, and the decision is distinctly rested on the ground that Chinnubbee had made an appointment, and thereby defeated his wife’s right of dower, which otherwise would have been perfect at his death. In that case the court say that the President’s approval was no part of the contract of sale, and that it was merely an opinion of the President that the contract was good. Still, it was no contract without approval by the President, Chinnubbee died before the approval. If the land, on the death of Chinnubbee, es-cheated or reverted to the government, the President’s approval would have been more than a mere opinion; it would have been the only act, in relation to the sale, which could have been of any validity.
    The opinion in Chinnubbee v. Nicks is approved in La-diga v. Howland, 2 Blow. U. S. Rep.
    In Eipps v. McGehoe, 5 Port. 432, the title is called an inchoate legal title — the right of entry upon the land, and the right to resort to courts to assert the right. In Jones and Parsons’ heirs v. Inge and Murdis heirs, 5 Porter, 332, the court say, the right of the reservee was a legal estate vested in the Indian, and could be by him enforced in a court of law.” In this case, page 334. the case of Chinnubbe v. Nicks is approved and its meaning defined. The court did not decide that the reservee had no legal title.
    
    7. In Wells v. Thompson, 13 Ala. Rep. 530, the court recognize the rights of the heirs of the Indians to the land of deceased reservee, and classify the title as a “ defeasible fee,” de-feasible 11 on the not happening of a certain event,” to wit, the manifestation of a desire on the part of the reservee or his beirs, to remain upon tbe land, witbin tbe five years. Ladiga manifested ber desire, by suing for tbe land; and ber beirs, by continuing tbe suit after five years elapsed. Tbe government, by its patent, put tbe plaintiffs in error in possession of tbe land, and prevented Ladiga or ber beirs from acquiring tbe title. Can tbe government be beard, to say, “you bavc not manifested a desire to stay on tbe land,” after making sucb manifestation simply a vain act! But Wells v. Thompson is not in point. That was a suit brought after five years had elapsed, by persons who bad done nothing to signify a desire to occupy tbe land, and were not in tbe country when tbe treaty was made. That case turned upon the cur-tesy of the husband. How could be have curtesy in lands to which bis wife only bad a life estate? 2 Black. Com. 98, (125).
    8. Tbe idea, so frequently advanced, that on tbe abandonment, by the reservee, or on bis omission to signify bis intention to take a patent for tbe lands assigned to him, the land reverts to the government, cannot be extended to tbe beirs of the reservee, where tbe reservee did no act to work a forfeiture in bis life-time. There is no true idea of a reversion in the treaty, or arising ,from it; tbe idea upon which government succeeds to tbe entire estate is by forfeiture, not by reversion. It is a paradox, to say that tbe owner of tbe fee becomes a reversioner, when be grants no estate out of himself, but only agrees to grant an estate, upon condition!-. There is no provision in the treaty for either a reversion or a forfeiture; it is all a matter of construction. At common law, every intendment is made in favor of the heir at law, and be is not to be disinherited, except by a plain intention . 1st Durnford & Bast, 109 ; 1 Black. Com. 371, and note 6.
    9. The estate of the Indian reservee is very nearly assimilated to an estate upon special trust, to be conveyed to the cestui que trust or bis assignee upon conditions annexed to tin; estate, and tbe title of tbe government resembles very closely tbe ultimate fee which enured to tbe Crown, under tbe Feudal System. Tbe law is well settled, that estates do not es-cheat or revert (synonymous terms) to tbe Crown, where' there are beirs at law, or even, in a trust estate, where there are no heirs at law, but a trustee. Greenleaf’s Cruise, vol, 3, p. 194, tit. xx, Escheat, § 2, et seq., to page 208-9.
    
      10. By tbe treaty, it was tbe design of botb contracting powers, to secure to every class of Indians, tbe benefits of tbe same; bead chiefs, orphans, beads of families, and those who bad emigrated. If tbe land was forfeited by tbe death of tbe bead of tbe family, tbe family' would be unprovided for. Congress, in construing tbe treaty, asserts tbe rights of tbe, widow and children of tbe reservee to dispose of tbe land.
    11. If a woman bad lost her husband and children, before tbe treaty, she would be unprovided for, unless she were the bead of a family; but she would be a bead of a family, under the terms of tbe second article of tbe treaty, which makes tbe reservation for the use of the reservee, not of tbe family. Tbe term “ bead of a Creek family,” is a descriptio personas, and is not to be construed according to tbe rules of construction applicable to our statutes of exception from execution. Those statutes are intended to secure property for the use of the family, and tbe term family is not a descriptio personae, but a term denoting a class of persons. Suppose a Creek man with children married a Creek woman with children by another bus-band, and they were living together at tbe date of tbe treaty, would not botb of them take reservations? It will not do to say that this was a casus omissus in making tbe contract; such would not be a fair interpretation of it. By tbe treaties, from first to last, tbe Creeks put themselves under tbe guardianship of tbe government; and tbe President is called their great father. Shall tbe guardian, by a narrow construction, rob bis ward of a whole territory, and then of tbe promised consideration upon which tbe cession was made ? See Statutes at Large, vol. 7, p. 85 ; Cherokee Nation v. Georgia, 5 Peters, 1.
    12. If these positions be true, there was no error in admitting evidence of Ladiga’s acts and declarations about her grand-child, for which tbe court would reverse, for there was no injury. Tbe proof was clear, independent of that proof, that she was tbe bead of a family.
    13. As to tbe competency of John Gooden, these cases are conclusive. 5 Porter, 503; 5 P. 161; 18 Ala. Bep. 196; 18 Ala. Bep. 118.
    14. Tbe demurrers to tbe pleas were well sustained. Tbe general issue bad been pleaded jointly, and tbe ease tried upon it, and tbe court should have rejected the pleas; but if not rejected, the pleas were bad. 3 Bibb, 314; 2 Stew. 356; 3 Rand.; 12 Serg. & Rawle, 435; 3 Bibb, 180; 8 Watts, 356 ; 9 Dana, 452 ; 3 B. Munroe, 176 ; 21 Wend. 598.
    15. The proof of Sally’s declarations made to Goodwin were competent as a part of the res gesta’-, or control of the boy. See Phillips’ Ev. Cow. & EL, notes.
    16. The new trial, at Spring Term, 1846, was granted on payment of all costs by plaintiff, “on or before the 1st day of August following.” This would seem to bring the order within the rule which is hinted at by this court in Edwards v. Lewis, 18 Ala. Rep.; but at the same time, and in the same entry, follows an order for a change of venue In relation to this the entry says, “if the cost is not paid by the first of August, a change of venue is denied.” Is it not, therefore, apparent, the court did not intend to make the new trial depend on the payment of costs as a condition precedent ?
    17. But it is said Sally was dead at the time this order was obtained'. The record does not show this fact. We find, “ that in the fall of 1838, she started with the emigrating company of Indians, and never reached the west bank of the Mississippi river.” If inferences are to be drawn, they will be in favor of the record, and not against it. Indeed, every intendment is in favor of record, which is not expressly negatived by the facts set forth in the record.
    Again, it said “ a party complaining of error must set out in the record so much of the evidence as is necessary to show it affirmatively." Brazier & Co. v. Burt, 18 Ala. Rep. 201.
    No exception was taken in the Circuit Court of Benton County, to the action of that court in changing the venue; but we find the defendants objecting in the Circuit Court of St. Clair to the record or transcript and papers being filed in that court. This objection not only came too late, but was made in the wrong forum.
    18. The cause was revived in the name of the heirs of Sally. The Court determined who were the heirs, and no exception was taken to this mode of trial; therefore this court will not review that question. Doe ex dem. Ethridge v. Malempre, 18 Ala. Rep. 571.
    19. The judgment entry of Spring Term, 1849, shows that defendants went to trial on a joint plea of “ not guilty,” and also several pleas of “ not guilty.” They also plead specially, as appears by the return to the certiorari.
    The verdict finds each defendant in possession of a separate portion of the land, viz., Rowland of the north-east quarter, and Heifner of the south-east quarter, and separate writs of possession are adjudged as to each. We insist that this is in strict accordance with the well settled practice — -these parties being trespassers on the lands of the plaintiffs; and this has been the practice in actions of ejectment for a hundred years. Jackson ex dem. Haynes v. Wood, and cases cited, 5 John. 278; Roman v. Sidney, 12 ib. 185; Smith v. Shack-elford, 9 Dana, 452. In Camden v. Haskell, 3 Randolph, 466, the court say “the proposition insisted on is negatived by the uniform practice and all the authorities,” and refer to Buller’s Nisi Prius, 98, and Adams on Ejectment; 21 Wend. 598 ; 12 Serg. & Rawle, 435.
   DARGAN, C. J.

— We will not examine in detail every question that has been presented in the course of the argument, but only such as are material to the merits of the cause, .as it is presented to us by the record.

When this case was before the Supreme Court of the United States, the facts material to the right or title of Sally Ladiga were in substance the same, as they now appear from the record before us; and that court held, that a grandmother of the Creek tribe of Indians, with whom her grandchildren resided, was the head of a family, within the meaning of the second article of the treaty concluded on the 24th day of March, 1832, between the United States and the Creek tribe East of the Mississippi River.

" It was also held, that, as Sally Ladiga resided on the half section of land in controversy, and selected it as her reservation, and made application tp the agent of the Government to be located upon it, the< refusal of the locating agent to recognize her right upon the ground that she was not the head of a family, did not in any manner affect her title derived under the treaty. It was also held, that, as she had made application to be located on the land, and her application being refused and she afterwards being removed from the country by tbe military force of tbe government, sbe bad not abandoned tbe land, nor lost ber title thereto derived from tbe treaty, and consequently that ber title was superior to tbe title of tbe defendants, wbicb is derived under tbe same article of tbe treaty wbicb authorizes the President to select twenty sections of land for the benefit of tbe orphan children of tbe Creek tribe, to be divided amongst them or to be sold for their benefit as the President might direct. See 2 Howard E. 581. This decision, the effect of wbicb we have stated, is conclusive to show that tbe title of Sally Ladiga, so long at least as sbe was in life, must prevail over tbe title of tbe defendants ; and we yield to it, not only as authority binding upon us, but as a correct exposition of tbe treaty.

But as she has departed this life since tbe institution of this suit, tbe question arises, whether sbe bad such an estate as would descend to ber heirs at law, who had removed west of tbe Mississippi with their tribe.

Before tbe treaty tbe ultimate fee simple to tbe land was vested in tbe General Government. This at least was tbe policy adopted by our Government in reference to tbe Indian lands. Tbe Indians were allowed tbe right of possession, but not tbe right of disposition — that right, or tbe ultimate fee, was claimed by tbe Government of tbe United States. Tbe Indians however bad an interest in tbe soil, and that interest was tbe right to occupy and enjoy, and tbe Government of tbe United States has never assumed to deprive them of that right, except by contract founded on sufficient consideration. And in tbe treaty of tbe 24th March, 1882, it was part of tbe consideration, moving from the General Government to tbe Creek tribe, that each head of a Greek family should he entitled to a half section of land, to be selected by him or ber so as to include bis or her improvement, if tbe selection could be-so made. Tbe second article of the treaty, wbicb conferred this right on tbe beads of families, also provides, that tbe tracts thus selected should be reserved from sale for their use for the term of five years, unless sooner disposed of by those entitled to them. Tbe third article stipulates, that these tracts of land, thus selected by tbe beads of families, may be conveyed by tbe persons selecting tbe same for a fair consideration, in such manner as tbe President may direct, but that tbe contract should not be valid until it had received the sanction of the President. The fourth article provides, that at the end of five years all the Creeks entitled to these selections and desirous of remaining shall receive patents therefor, in fee simple, from the United States.

If we were to admit that, under these articles, an Indian reservee would forfeit his title to the land allotted to him, by abandoning the possession and removing from the country within the five years, as was indicated in the case of Wells v. Thompson, 13 Ala. 793; still, I think it clear, that if the Indian reservee took possession of the land allotted to him, and neither sold it, according to the provisions of the third article of the treaty, nor abandoned it by leaving the country within that time, then he became entitled to a patent, and was vested with the fee simple title.

The fourth article of the treaty, it is'true, provides, that at the end of five years, all the Creeks entitled to these selections and desirous of remaining, shall receive patents therefor in fee simple. But there is no provision made in the treaty prescribing the mode in which the desire of the Indian re-servee shall be made known to the Government, nor is any time prescribed after the expiration of the five years, within which he should make his wish or desire known, but he becomes entitled to a patent at the expiration of five years, if he is desirous of remaining in the country. This desire, I think, is sufficiently indicated by his failure to sell within five years, and his remaining upon the land allotted him without abandonment. An Indian reservee who had not sold, but had remained upon his reservation, would have performed the condition upon which he was to receive a fee simple title to the land allotted to him, and he would hold it to himself and to his heirs forever, as any other tenant in fee; and consequently upon his death the land would descend to his heirs at law, who could even before the issuance of the patent bring ejectment. This view may not be entirely consistent with the case of Wells v. Thompson, supra, or rather with the reasoning employed in that case, but I hold it to be in accordance with the plain meaning of the treaty; for at the very moment of the expiration of the five years, the Indian became entitled to a patent in fee simple, for then the condition subsequent annexed to tbe grant was performed, provided be bad neither sold nor abandoned tbe land. Tbe bead of a Creek family, therefore,, took a title under tbe treaty defeasi-ble upon tbe condition that be either sold or abandoned tbe land within five years. If be bad done neither within that period, that is, if be neither sold it according to tbe provisions of tbe third article, nor abandoned tbe land, bis title then became absolute and indefeasible, and of course descended to bis heirs.

We have seen from tbe decision of tbe Supreme Court of tbe United States, made in this case, that Sally Ladiga became entitled to tbe land in controversy, by virtue of tbe treaty, as tbe bead of a family, and it is certain that she has not sold her right according to tbe provisions of tbe third article of tbe treaty. Nor did she abandon tbe land; on tbe contrary, she repeated her application before several locating agents, all of whom rejected it, and although she removed from it in consequence of some difficulty between her and one Smith, who it seems surrounded her cabin by a field opened by him, yet she was found in a shelter upon or near tbe land, by a soldier of tbe United States, and was carried by him to a company then about to emigrate west. She was neither asked nor consulted whether she wished to abandon tbe land or not, but, so far as we can discover, was removed without any regard to her wishes, and this too, after tbe expiration of tbe five years. In no just sense can it be said that she abandoned it, which implies a voluntary act. She removed from tbe land in consequence of tbe unlawful act of an intruder, and was then removed from the country by tbe Government, without any inquiry whether she desired to remain on tbe land or not. To bold this to be a voluntary abandonment of tbe land, within tbe meaning of that term which would work a forfeiture of her title, would, in my judgment, be a stain upon our Government. It would in effect be, to allow lawless force to defeat individual rights. But it would have sufficed to have said, that tbe Supreme Court of tbe United States have decided that she bad not abandoned tbe land, and consequently was still invested with tbe title, notwithstanding her removal from tbe country, and therefore her title of necessity must have descended to her heirs; for not having sold tbe land, and not having abandoned it within five years, her estate became absolute and indefeasible, and ber beirs at law may maintain ejectment upon ber title.

It is however urged, that tbe court erred in tbe admission of evidence introduced by tbe plaintiffs to show that Sally Ladiga was tbe bead of a family. Groodwyn, a witness introduced by tbe plaintiffs, testified that in March, 1882, be sold to Sally Ladiga some clothes for tbe boy Arcbecbee, and she then told him that it was tbe same boy be bad seen with ber in 1831. To tbe admission of this testimony tbe defendants excepted.

It must be borne in mind that tbe objection is to tbe Avbole of tbe testimony, and not to any specific part of it; consequently, if any portion of it was admissible, there was no error in admitting it, for tbe court is not bound to separate tbe evidence when tbe objection is to tbe whole, and if any part of it be admissible there is no' error in refusing to reject it. And I think that, even if what Sally Ladiga said at tbe time of purchasing tbe clothes, that Arcbecbee was tbe same boy that tbe witness saw with her the year before, was madmissi-ble, still, it is very certain that tbe witness might well have testified to tbe act of selling ber clothes for Arcbecbee, for it tended to prove that he was one for whom Sally Ladiga was bound to provide as a member of ber family.

It is again insisted, that tbe court erred in admitting tbe common rumor amongst tbe tribe of tbe Creek Indians, that tbe plaintiffs were tbe children and grandchildren of Sally Ladiga. But as this question was raised it cannot be reviewed by this court; for it does not appear from tbe bill of exceptions that this proof was offered to tbe jury, but to tbe court, upon tbe motion to revive tbe suit in tbe name of tbe plaintiffs as tbe beirs at law of Sally Ladiga. By our statutes, a party from whom lands arc unlawfully withheld, may bring ejectment or trespass to trjr titles for tbe recovery thereof at bis election. Clay’s Digest 320 ; Jordan v. Abercrombie, 15 Ala. 580. And if the action of trespass to try titles be brought to recover tbe free-bold, and tbe plaintiff die pending tbe suit, the action does not abate, but may be revived in tbe name of .bis beirs at law. Jordan v. Abercrombie, supra; The State ex rel. Nabors’ Heirs, 7 Ala. 459.

Inasmucb as tbe action may be revived in tbe name of tbe beirs, tbe coart may, without violating tbe law, require some proof of tbeir beirsbip; but we could not say that it would be error to revive tbe suit on motion merely, without any proof whatever of tbe beirsbip of tbe plaintiff, for notwithstanding tbe court might allow tbe suit to be revived in tbe names of tbe plaintiffs, as tbe beirs at law of tbe deceased plaintiff, still, upon tbe trial before tbe jury, they would have to prove them beirsbip as part of tbeir title, and if they failed in this they would fail in tbe suit, although tbe suit was revived in tbeir names. Tbe proof, therefore, to which tbe defendants excepted, being introduced to tbe court as laying a predicate for reviving tbe suit, is not revisable; and it is therefore immaterial to inquire whether it would have been legitimate evidence to prove tbe beirsbip of tbe plaintiffs before tbe jury or not; for if tbe order of revivor bad been made without any proof at all, it could not have been an error of which tbe defendants could have complained; they might still have contested tbe beirsbip of tbe plaintiffs upon tbe trial.

We however deem it proper to say, that in questions of pedigree tbe declarations of deceased members of a family have always been received as evidence, to establish tbe parentage or descent of tbe particular individual whose relationship is tbe subject of investigation. Green. Ev. Vol. 1, § 103, and cases there cited; Starkie on Evidence, Vol. 2, 834.

This brings us to tbe last question we propose to examine, and that is, tbe first charge contained in tbe bill of exceptions. Tbe language of that charge is: “ that if each of tbe defendants was in possession of a different quarter section of tbe half section of land in controversy, and each- claimed title to tbe quarter section in bis possession, and there was no connection between tbe title and possession of tbe defendants, and if they found that Sally Ladiga was entitled to tbe land as a reservation to her under tbe treaty of 1832, they must return a verdict for tbe possession of each quarter section separately against each defendant.” This charge is assailed on two grounds: first, because a joint action cannot be maintained against two defendants, who occupy distinct parts of tbe land sued for, and between whom there is no connection; and secondly, because this charge assumed that tbe plaintiffs were entitled to recover, irrespective of tbe fact, whether or not they were the heirs at law of Sally Ladiga.

In respect to the first objection, it is sufficient to say; that if land be withheld from one unlawfully by several tenants, they may be all sued in one action, and if they possess distinct parts separately, and not in connection with each other, they may protect themselves ;against a joint judgment for damages; but the rule is well settled, that the plaintiff is not compelled to sue all separately, for the recovery of the possession, but may sue them jointly and recover of each the portion occupied by him. Jackson ex dem. Haynes, et al. v. Wood and others, 5 John. 278; Camden et al. v. Haskell, 3 Rand. 462; Adams on Eject. 235.

The second objection to the charge, however, we think is well taken; for if the right of a plaintiff to recover depends on three or more distinct facts, a charge that assumes he may recover if two only be established, must be erroneous. In the case before us, it may be that Sally Ladiga was entitled to the land in controversy as a reservation, and the defendants may have separately occupied distinct portions of it, and still, the plaintiffs could not recover without showing that they were the heirs at law of Sally Ladiga; but this'charge, standing alone, rendered it unnecessary for the jury to inquire into the question of heirship, and placed the right of the plaintiffs to recover on the two questions, the title of Sally Ladiga, and the possession of the defendants.

It is however urged, that we should presume that in the other instructions given by the court to the jury, and which do not appear in the bill of exceptions, the jury were informed by the court that they must find that the plaintiffs were the heirs at law of Sally Ladiga; especially, as the record informs us that the court, in response to the defendants’ inquiry upoD the motion to revive the suit, informed them, that they might contest the plaintiffs’ heirship upon the trial before the jury.

We are satisfied, that the court as well as the counsel engaged in the cause, knew that it was indispensably necessary to the plaintiffs’ right of recovery, to establish their heirship, and it may be, that the jury were in fact so instructed, but the record does not show that they were; it shows that they were charged, that the plaintiffs were entitled to recover, if Sally Ladiga was entitled to the land as her reservation under the treaty, and if the defendants were in possession of separate parts of it. This charge, standing alone, and unexplained by other instructions, is erroneous, and the record does not show what explanation or other instructions tending to explain it were given. We therefore cannot say the charge is not erroneous within itself, and without further instructions it is erroneous; and in order to take away the error, we must see the further instructions that were given, and which had this effect.

For this error, we are constrained to reverse the judgment, and remand the cause for another trial.

PHELAN, J.

— The action was commenced below in the name of Sally Ladiga; she died, and the suit was revived in the name of her heirs at law.

In respect to the charge for which the judgment below is reversed, it is said: here is an affirmative charge which embraces but two points of law, when three were necessary to be stated, to inform the jury fully of the duty which devolved on the plaintiffs to make good their action. The court below charges the law respecting the title of Ladiga. and the possession by the defendants, but omits to notice the heirship of the plaintiffs. The alleged error, then, is not in misdirecting the jury on the points of law which were noticed, but in omitting to notice another point altogether.

Now I will ask, does it, in the first ¡dace, clearly appear from the record, that this point was omitted altogether by the judge below ? And, if omitted, does it, in the second place, further clearly appear from the record, that such omission was to the injury of the plaintiffs in error ?

I do not think it clear, from the record, that the point as to the heirship of the plaintiffs was wholly omitted in the charge to the jury. The bill of exceptions itself discloses that “ other charges” were given, besides those set down in the bill. The nature of the trial, and the purely formal nature of the point as to heirship, (about the law of which there could hardly be a dispute) lead to the fair presumption, as it seems to me, that one of these “ other" charges to which the bill of exceptions refers, was a charge respecting the heirship of tbe plaintiffs, and tbat tbe reason wbj it is not set out, or more specifically noticed in tbe bill, is, tbat there was no exception taken to it.

In Donnell v. Jones, 17 Ala. Rep. 689, tbe court say, When we are called upon to construe a doubtful bill of exceptions, tbat construction will be adopted wbicb is most favorable to tbe regularity of tbe judgment.” Indeed, it is a general principle, well established, and, I may say, a favorite one with appellate courts, to indulge all reasonable presumptions and intendments in favor of tbe regularity of tbe action of tbe court below. 14 Ala. Rep. 822; 6 Ala. Rep. 801; 7 Ala. Rep. 19; 3 S. & P. 444.

But even admitting tbat, with tbe aid of this favorable rule of construction, we cannot presume tbat any charge on tbe point of heirship was given, tbe next question recurs; does it clearly appear from the record, tbat tbe omission to charge on tbat point was to tbe injury of tbe plaintiffs in error?

Let it be borne in mind, tbat tbe charge does not state any rule of law erroneously; its error is alleged to consist, in omitting to state a certain point altogether. Tbe rule fairly deducible from such a doctrine, I bold to be this: tbat it is necessary for a judge of tbe Circuit Court, when be makes an affirmative charge, to state tbe law wbicb relates to every material allegation of tbe plaintiff’s declaration, or his charge will be erroneous.

Can such a rule be made to consist with tbe doctrine tbat tbe party seeking to reverse must clearly show error, and tbat all reasonable intendments and presumptions shall be in favor of tbe regularity of judgments. I do not think it can, as I will endeavor to show.

We know tbat in almost every proceeding in tbe inferior courts, there are certain formal matters of fact, wbicb must be proved to entitle tbe plaintiff to recover, wbicb rarely ever become tbe subject of controversy. Again: we know tbat nothing is more common in practice than for a defendant, either to save costs, or for some other good reason, to abandon altogether some legal point in tbe defence, although such abandonment never appears upon tbe record.

Now it is undeniable, that in cases where there are such uncontroverted matters of fact or conceded points of law, charges are continually given by the circuit judges, wbicb, under this rule, would reverse judgments, without the slightest injury having been done to the defendants by the omission to notice them in the charge.

To illustrate my meaning: A plaintiff sues as administrator, and the defendant by plea puts the character in which he sues in issue. At the trial the plaintiff brings his letters into court, proving conclusively his character, and there is not a word of controversy more on that subject from beginning to end, but the case is strongly litigated, on the plea of non esi factum, for instance. The court charges the jury, and says^: “ Gentlemen, if you find that the defendant executed this bond, you must find for the plaintiff.” The attorney for the defendant says, “I except to that charge,”and takes his seat, without saying more. The judge, and probably every body else but himself, has forgotten that ho had a plea in that plaintiff was not administrator; the proof upon that point was conclusive; he has made no allusion to that defence in his argument; and if the judge’s mind reverts to it at all, he regards it as tacitly abandoned. Does the counsel want a charge upon that point ? Not at all; that is the very thing he does not want. To disclose what he wants would defeat his object, which is, to keep a charge that does him no harm in its present frame, that he may reverse the judgment upon it, when he knows that the least allusion to its supposed defect would result in a prompt correction by the court.

This court would be compelled to reverse for error in the charge in the case I put, on the principle established in this case. I will put another case.

A party is indicted for assault and battery. The State does not prove the venue — a merely formal thing. The court says; Gentlemen, if you find that the defendant struck the prosecutor without provocation, you must find him guilty.” The counsel for the defendant says, “I except to that charge, and I ask the court to charge the jury, that it was necessary for the State to prove that this offence was committed in this county.” ‘-True,” says the judge, “ that is necessary, but it is a mere formal and technical thing, and I will allow the solicitor to prove that now.” Is any injury done to the defendant by this? None. Such a course is perfectly lawful. Here tbe counsel, by disclosing tbe ground of bis objection, enables tbe court in a moment to obviate it, and not only to supply tbe charge, but tbe proof to base it upon. What, then, if tbe counsel bad cbosen to except, without disclosing tbe ground of bis objection, shall that better bis client’s condition ? In other words, shall a cautious and artful concealment accomplish ends which openness and fairness cannot ?

What I now propose, seems to me to furnish tbe ground for a sound distinction in cases of this sort.

If an affirmative charge touching tbe merits of the action, strictly so called, is correct, such charge should not be held to be erroneous because it does not likewise embrace formal and technical matters, unless it be excepted to in the court below for that reason.

To recover in any action, a plaintiff must first have a good cause of action, and, secondly, he must pursue it in a formal manner, correct according to the rules of law. If a charge covers the first matter, and is correct, the court may stop at that; and if the defendant wants a charge in respect to formal matters, he must ask it, or he ought not to be allowed to object in an appellate court, that such formal matters were not noticed. The trespass on the lands of Sally Ladiga, the locus in quo, was the gravamen of the declaration, and the m&rits of the action embraced this and the title of Sally Ladiga only; all other things were formal.

It is not every allegation in a declaration necessary to make it good, even upon general demurrer, that embraces the merits of the action. Waldrum and Wife v. Quarles, 20 Ala Rep. If a party goes to trial without demurring, he is held to be precluded from assigning as error in an appellate court, many such omissions in the declaration; but if the court below makes an affirmative charge, and does not cover such matters, although not objected to on that account, it is by this decision held to be error. This does not seem to me to be consistent.

Such a 'rule as I propose would secure to one party every just right, and at the same time prevent the other party from being lulled into a false security by his silence, when he ought to speak out; it will at the same time prevent the circuit judges from the consequences of a cautious and artful silence on the part of counsel.

I close these observations in tbe language of C. J. Collier, in the case of Crawford v. The Bank, 7 Ala. Rep., 210.” “ General objections, calculated to entrap tbe court and tbe adverse party, should be discountenanced, and when they are not promotive of justice, should be most unfavorably regarded in an appellate court.”

I am dealing with a principle, and what I suppose to be its injurious consequences, but, lest it might be supposed that some parts of this opinion are intended to have a personal bearing on the counsel who conducted this cause for tbe plaintiffs in error in tbe court below, I take occasion to say, that I intend nothing of tbe kind. Their conduct was in all respects wholly unexceptionable. It is tbe consequences, of tbe rule adopted by tbe court, that I aim to combat, and that alone. Tbe construction that will be given in this court to a bill of exceptions is oftentimes not fully apprehended, either by tbe counsel who prepares or tbe judge who signs it.

CHILTON, J., having been of counsel in this cause before bis election to tbe bench, did not sit.  