It may, however, be remarked here, to save another reference to the subject, that nothing tending to prove fraud, was shown, except that Mrs. Hundley retained the possession of the negroes after the sale, and that is not, connected with other explanatory facts, sufficient to sustain a charge of fraud. Cocke vs. Chapman, 2 Eng. 200; Danley vs. Rector, 5 Eng. 224; Hempstead vs. Johnson, 18 Ark. 134.

But the defendant had no right to introduce evidence to affect the bill of sale, or to show that the transaction it witnessed, was any thing else than the bill of sale recited. Whether the transfer of the negroes was an absolute or a conditional sale, a mortgage or a pledge, was to be determined only by the written contract, and every thing said by the witness tending to show that the dealing between Mrs. Hundley and George, amounted to a mortgage, or to something short of what the bill of sale purported, was illegally permitted to go to the jury. And because the question was an entire one, including some matter that might be legal, and some that was eminently illegal, the whole question was bad, and the entire response to it was improper evidence. Conceding the propriety of the exclusion of that part of the evidence of the witness that related his own dealing with his mother about the negroes, no part of his testimony adduced upon cross-examination was proper, except the single fact that Mrs. Hundley held the negroes as the administratrix of her husband. That was in denial of the plaintiff's right, and was admissible to defeat the suit.

To avoid the effect of that evidence, the plaintiff produced the record of the Probate Court of Ashley county, and offered to read therefrom, of its proceedings, at the January term, 1853, the following entry :

"Comes Elmyra Hundley, administratrix of Joel Hundley, "deceased, and presents her petition in writing, setting forth 66 that, in order to pay the debts of said deceased's estate, it is "necessary that the slaves thereof should be sold; and it appearing to the satisfaction of the court, that sufficient causes exist "to require said sale, therefore it is ordered that said adminis

"tratrix sell said slaves, either at public or private sale, which "to her shall seem most advantageous to said estate, according "to law, and make report thereof to this court."

The decision of the court in not permitting the record entry to be read is another error, of which the plaintiff complains. To sustain the ruling of the Circuit Court the order of the Probate Court must be held to be void. That is the view, doubtless, in which the court considered it; it is so argued for the defendant in this court.

The Probate Court is a court of constitutional jurisdiction, and upon all subjects within its jurisdiction and matters submitted to it, its determination, till reversed by a superior tribunal, is conclusive. Borden vs. The State, 6 Eng. 552; Ringgold vs. Stone, 20 Ark. 534: Bennett vs. Owen, 13 Ark. 179.

The jurisdiction of the Probate Court extended to the matter of this petition, the order itself was the measure of its validity, and the Circuit Court was not to judge of the propriety or legality of the order upon its introduction in a collateral proceeding. The Probate Court, upon a subject within its jurisdiction, exercised its discretion, which must be presumed to have been well exercised. Redmond vs. Anderson, 18 Ark, 452. However erroneous the decision of the court may have been, whatever was done under it while it was in force, was legal. The court erred in not receiving the record entry as evidence. In addition to the cases in this court, which include many more than those cited, we refer to a few of the abundant authorities to be found in the books sustaining this position. Thompson vs. Palmer, 2 Pet. 157; Grignan's Lessee vs. Astor, 2 Ilow. U. S. 319; McKee vs. Whitten, 25 Miss. 33; Wyman vs. Campbell, 6

Port. 219.

Whatever other evidence the plaintiff might or would have introduced in support of what was done under the order, or whether any was necessary, we are not to decide, and will not suggest. The first step to show an administration sale was properly attempted by the plaintiff in offering to read the record

entry of the Probate Court, and was improperly arrested by the Circuit Court.

The executions upon the delivery, bonds, under which the defendant took and sold the negroes, and which he read in evidence, against the objection of the plaintiff, did not authorize the defendant in taking property belonging to the estate of Joel Hundley. The sheriff was directed to make the money due upon the executions out of the property of Elmira Hundley and her security in the delivery bond. The returns of the sheriff on the executions, showing a seizure of negroes of the assets of the estate of Joel Hundley, were not evidence, being acts done without authority from the writs.

The plaintiff alleges, as error in the court, that it refused to give the first, fifth, seventh, eighth and tenth instructions she asked, and did give the third instruction of the defendant.

The counsel for the defendant concede that the seventh and eighth instructions of the plaintiff should have been given, and that the third one of the defendant should have been refused. The tenth instruction affirmed the right of George, as a mortgagee of personal property, to bring his action against the defendant. It was founded on the parol evidence, that the court admitted to enable the defendant to show that the sale recited in the bill of sale was a mortgage. No instruction need here be considered that does not refer to legal evidence. The first and fifth instructions asked the court to declare, that evidence which it had admitted against the objection of the plaintiff was not legal and could not be considered by the jury. The court did not err in refusing the instructions, its error was in allowing parol evidence to go to the jury, to construe the bill of sale as a mortgage, but when the evidence was before the jury the plaintiff should have rested his objection to it on his exception to its introduction, should not have asked the court to pronounce that not to be law which the court in a former period of the case ruled to be the law-the instructions were properly refused.

But for the errors herein indicated, the judgment is reversed.

In an action of trespass against the plaintiffs, their attorney and the sheriff, for levying an execution upon, and selling the property of a third person, if there be any evidence, though slight, against the attorney as a co trespasser, this court could not set aside the verdict against him for not being supported by evidence. Where the record states that the suit against a defendant not served with process, was discontinued, this court will hold such statement to be true, although the bill of exceptions presents a different state of facts.

The owner of property, levied upon under an execution against another person, and who had claimed it as his own, is not estopped, by bidding for the property at the sale, from asserting his title in an action of trespass against the sheriff.

The death of a witness at the time of the trial does not make his writing any more evidence than his unsworn declarations would be.

An objection to the testimony of a witness after verdict, comes too late-it should be made when the witness is called to the stand.

The objection that the damages are excessive, will be considered as waived, if not made one of the grounds of the motion for a new trial.

That a jury on the trial of the right of property, has failed to find for the claimant, is no bar to an action of trespass for selling his property.

Appeal from Crittenden Circuit Court.

Hon. MARK W. ALEXANDER, Circuit Judge.

GARLAND & RANDOLPH, for appellants.

Mr. Justice FAIRCHILD delivered the opinion of the court. Crenshaw and Chambers were plaintiffs in an execution against James B. Harris; Kortricht was their attorney, and Crump was the sheriff of Crittenden county. Crump levied on thirteen bales of cotton as the property of Harris, which Starke claimed; a contest was had in a trial of the right of property before the sheriff, which resulted in nothing, as the jury could

Crump et al. vs. Starke.

[JANUARY

not agree upon a verdict, and was discharged by the sheriff, with the consent of the parties. Kortricht had been the attorney of Crenshaw and Chambers in the suit in which judgment was rendered, appeared for them on the trial of the right of property, and, after the disagreement and discharge of the jury, declared his purpose to have the cotton sold under the execution. Against this, Starke, by his attorney, protested, and notified Crump and Kortricht that if they proceeded to sell the cotton, he would hold them responsible for so doing. Crump and Kortricht were heard to talk about the former being indemnified for selling the cotton, but the witness could not say that he had seen the bond of indemnity. Neither Crenshaw or Chambers was present; Kortricht, as their attorney, had the whole management of their business. This was at the trial held by the sheriff, which seems to have been an animated and protracted contest, lasting for two days.

The above statement contains all the facts that bear personally upon Kortricht, except that it is put down in the sheriff's report of the sale, endorsed on the execution as his return, that he had paid four hundred and fifty dollars of the proceeds of the sale of cotton and other property to the plaintiffs' attorney. And it is evident that the proof is slight to charge him as a cotrespasser with the sheriff for taking the cotton; yet it is evidence appropriate to the issue of not guilty, which Kortricht pleaded to the action; the jury had it in charge to determine its effect, and having found a verdict against Kortricht, we cannot say that it ought to be set aside for not being supported by any evidence. If this had been an action of trover, as stated by counsel, the argument would have been good that the verdict was wrong. For, as Kortricht did not sell or buy the cotton, no conversion being proved against him, an action of trover would necessarily have failed; but in trespass, he could be regarded as an encourager of taking the cotton, and therefore as a participator in the alleged wrong.

It is urged for Crump and Kortricht, that the judgment should have been arrested, and a new trial granted, inasmuch as