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less indeed the instrument was intended to have a fraudulent effect. But it had already been proven that this was not the case. 18 Ark. 170; ib. 579; Phil. on Ev., Cowen & Hill's Notes, vol. 4, p. 572; latter clause of note 286.

YELL and HUTCHINSON, for the plaintiff.

According to our understanding of the rule, the judgment must be reversed, if there has been any error of law in the decisions of the inferior court, no matter how this court may regard the merits of the case: that there can be no question as to the propriety of the verdict, but the court will look merely at the isolated questions of law presented, and at the evidence, no further than as it may affect them, by showing their pertinency. State Bank vs. Conway, 8 Eng.; Duggins vs. Watson, 15 Ark.; Stillwell vs. Gray, 17 Ark.

The court clearly erred in permitting the defendant to ask the witness "to explain to the jury what was meant or intended by the bill of sale," etc. Upon the ground of accident, mistake or fraud, parol evidence has been admitted in courts of equity to show that a bill of sale or deed, absolute upon its face, was intended as a mortgage or pledge, but the courts have, without an exception, it is believed, refused to apply the rule in trials at law. 6 Hill 219; 8 Conn. 117;7 ib. 409; 6 Har. & John. 128;7 Greenlf. 435; 36 Maine 562; 14 Pick. 467.

The executions and returns read in evidence by the defendant, instead of excusing him in selling the property of the plaintiff, showed a gross violation, on his part, of the law.

The Probate Court, being a court of superior jurisdiction, must be presumed to have acted according to law. Its orders. and judgments are to be held valid in collateral proceedings, unless there is something upon the record showing them to be void. Borden vs. State, 6 Eng. The court, then, clearly erred in excluding the record of the order of sale of the negroes in controversy.

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JAMES JOHNSON, for the defendant.

First: In order to entitle the plaintiff to recover, it was absolutely necessary that he should have shown property in himself, and a right to the immediate possession of the negroes, at the time he brought his suit. 2d Greenlf. Ev., section 636.

2d. The plaintiff claims title by virtue of a purchase from Elmyra Hundley; and in this case a question was made as to the time when the property in the negroes passed, and it was material for him to prove that everything that the vendor had to do was already done, and that nothing remained to be done on his part. 2d. Greenlf. Ev., section 638; 3d Starkie Ev., page 1,221.

3d. The rule that parol evidence cannot be introduced to vary or alter the terms of a valid written agreement, only applies in a suit between the parties to the instrument. 1 Greenlf., section 279.

4th. The court did not err in excluding the order of the Probate Court; first, because the order itself was a nullity. Gould's Dig., pages 116 and 117. And, second, because the plaintiff did not pretend to claim under the order, he claimed under a bill of sale made by Elmyra Hundley, and the very rule which he has invoked, viz: that parol evidence cannot be introduced to vary or alter the terms of a valid written agreement, forbids his changing the parties to the contracts, and showing by parol that Elmyra Hundley was selling other than her own individual interest. 1 Greenleaf, section 275.

5. The bill of sale was absolute upon its face, and yet the negroes were left in the possession of the vendor-this fact has been held in several states conclusive evidence of fraud, viz: Virginia, 6 Randolph, 285; Massachusetts, 1 Pick. 288; Tennessee, 3 Yerger 475; South Carolina, Eq., R. S. C. 229; Pennsylvania, 2 Watts & Serg. 147; and by the Supreme Court of the United States in Edward vs. Harben, 1st Cranch 309, and in every state it has been held as "prima facie evidence of fraud."

6th. It is admitted that the 7th and 8th instructions asked for

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by the plaintiff in error, should have been given, and that the third instruction asked for by the defendant should have been refused; but if the view which we have taken of this case be correct, then the plaintiff was not, nor could not, have been injured by the action of the court, and this court has decided in Sweiptzer vs. Gaines et al., 19 Ark., 96, "that where verdict and judgment upon the whole record are right, the judgment will be affirmed, though the court may have erred upon some question of law," and in 14th Ark., 114.

Mr. Justice FAIRCHILD delivered the opinion of the Court.

This case is to be reviewed here for alleged errors of the Circuit Court, in allowing and prohibiting the introduction of evidence, and in giving and refusing instructions to the jury. It is thence insisted, for the plaintiff in error, that this court will not look through the record to ascertain if a right decision is made in view of the whole case, but will determine the points of law one by one, and upon the errors, or upon a single error, that may seem to us to have been committed at the trial, will reverse the case, from legal necessity, without regard to its merits. If by this is only meant that, as no motion for a new trial was made, the propriety of a verdict upon the admitted evidence, is not to be questioned here, the argument is founded upon legal principle that is well settled, and which is recognized by numerous decisions of this court. But if it should appear, from all the evidence in a case, that the verdict was right, and that it could not have been affected by testimony that was admitted, and should have been excluded, or that was excluded when it should have been admitted, we should not be observing the spirit of the law to disturb a judgment for errors that were immaterial to a right issue of the case, and unproductive of injury to the party against whom they were committed. And this course would be taken upon examination of a bill of exceptions showing the evidence that was admitted, without or with objection, and the facts that were offered in evidence but were not admitted, although no question was sub

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Imitted to the court below upon the evidence by a motion for a new trial, or by a demurrer to the evidence. Such a matter would deserve to be cautiously approached, as the confines between the right of review by this court, and the effect of an unimpeached verdict, might be faintly traced. But that is no reason why a question should be avoided. That a case involves considerations of difficulty and delicacy, is often the cause of its being brought into a court of the last resort. The course here indicated has already been marked out by this court in cases arising upon matters of evidence. The State vs. Lawson, 14 Ark., 122; Ryburn vs. Pryor, Ib. 513; Clinton vs. Estes, 20 Ark., 235; Walker vs. Byers, 19 Ark. 323.

When no question tending to infringe upon the province of the jury is involved, when the case presents simply leading points upon the pleadings and upon the instructions and rulings of the court, it is the established practice of this court to disregard a particular error, if the judgment upon the whole record is according to law. Williams vs. Miller, 21 Ark., 472; Hathaway vs. Jones, 20 Ark. 111; Sweiptzer vs. Gaines, 19 Ark., 97; Abraham vs. Wilkins, 17 Ark., 325.

Upon both of these divisions of the point under consideration, Maxwell vs. Moore, 18 Ark., 491, is a decided authority.

Then, notwithstanding the conceded errors of the Circuit Court in refusing the seventh and eighth instructions asked for by the plaintiff, and in giving the third instruction of the defendant, and any other errors that shall be found in the case, the judgment is not to be reversed if the plaintiff in error was not injured by them; if, in other words, the judgment is right upon

the whole record.

In December, 1855, and in April, 1856, the defendant in error was sheriff of Ashley county; in the former month he levied upon certain slaves, to satisfy executions against Elmyra Hundley and her security in delivery bonds before given and forfeited, and in the latter month he sold the slaves under the executions. To recover the value of these slaves, Hosea George brought this suit, an action of trover, against the defen

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George ex. vs. Norris.

TERM, 1861.]

dant in error, claiming that the slaves were his own property at the times of the levy and sale. During the pendency of the suit, he died, and it was prosecuted by his administrator, who, to a judgment in the Circuit Court adverse to the claim of George, has brought his writ of error.

If the slaves were the property of Hosea George, the defendant had no right to take them for the satisfaction of the debts of Mrs. Hundley. To maintain the claim made in the suit, the plaintiff read in evidence a bill of sale of the slaves from Mrs. Hundley to George, dated the 13th of September, 1855. As the bill of sale had not been recorded, the plaintiff proved its execution by a subscribing witness. The plaintiff also proceeded to prove by the witness, facts concerning the sale; as, that he, as the agent of his mother, Mrs. Hundley, negotiated it with George, the particulars of payment by George, the fairness and honesty of the transaction on the part both of George and Mrs. Hundley, and that Mrs. Hundley had possession of the negroes before and after the sale, and that after the sale they continued in her possession till the defendant took them in execution; that he could not tell whether the negroes were positively delivered to George, but was of the impression that they were not; that the defendant took the negroes and sold them under executions, and that George claimed them as his own, and made his claim known at the time of the sale.

The defendant then, upon cross-examination, asked the witness what was meant by the bill of sale, whether the sale was intended as an absolute sale, and if not, what was intended by it, and under what circumstances it was made. The plaintiff objected to testimony of this sort, but the court overruled the objection, and the plaintiff excepted. The question was proper so far as its object was to show the sale to be fraudulent, because fraud may be enquired into in an action at law, and because the plaintiff had opened the door to such enquiry, by affirmative proof of the fairness of the sale from the mouth of the witness. The defendant then had a right to prove, if he could, such facts as would avoid the sale for its fraud.

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