1. By § 2405 of the Code of 1853, “no judgment can be arrested, annulled, or set aside for any matter not previously objected to, if the complaint contain a substantial cause of action.” In this case the counsel for appellant have argued at some length, and with great force, *271the defectiveness of the complaint. But under the provisions of the Code, we have come to the conclusion that the complaint contains a substantial cause of action, and is good after judgment by default, under the above recited section of the Code. It is therefore unnecessary to decide whether a demurrer could have been sustained to the complaint, upon the grounds taken in the brief of counsel.
2. The system of pleading established by the Code is more a mere statement of legal conclusions, than of the facts which constitute the cause of action, or the defense thereto. What is the effect of a judgment by default on a Code complaint ? Is it to be taken as an admission of all the facts necessary to sustain the cause of action ? I think so. The only question which is open on the execution of a writ of inquiry, is the quantum of damages. — Sterrett’s Ex’rs, v. Kaster, 37 Ala. 369.
Matters in mitigation or aggravation thereof, are admissible in evidence. ■ And what matters are in mitigation, and may be considered by the jury, frequently present questions of great nicety. It is said in some cases, that it is not competent to show a state of facts which is inconsistent with the plaintiff’s right to recover at all, even although it would be in mitigation of damages.
It is averred in the complaint that “Milner, Jones & Milner, established a claim to the timber on one hundred and sixty acres of said land,” and it is averred that appellant “covenanted, that in case a claim to any of the timber on said land should be established by Milner, Jones & Milner, appellant would furnish to appellee an equal amount of timber in value, taking into consideration its proximity to a min on said lands,” and that appellant, “although often requested, has not furnished an equal amount of timber in value, taking into consideration its proximity to said mill on said lands.” The judgment by default, is conclusive on appellant, as to the establishment of the claim, but the complaint does not show whether it was established before or after the covenant was made; yet after judgment by default, it will be presumed to have been after the covenant was entered into, unless it might be shown to have been before in mitigation of damages.
*272The bill of exceptions does not purport to set out all the evidence, and such as is set out, does not show that the claim was established before the covenant was made.
3. As to the questions made on the evidence offered and excluded, if admissible, (and it was in mitigation of damages,) the court erred in excluding it.
It seems that appellant offered the original deed of Mrs. Hamil, with the endorsements made by the judge of probate. If she executed it in presence of two witnesses, it was not so attested. — Code, § 1282. Nor is the deed valid under the provisions of the act of the 8th February, 1858. Bevised Code, 1552. It was, therefore, inoperative, and was not admissible in evidence for the purpose indicated in the bill of exceptions. — Code of 1853, §§ 1280, 1275, 1281. But the transcript of the deed from appellant to appellee was clearly admissible without proof of execution, under the provisions of the Code, Art. III, Ch. 1, Tit. 1, Pt. 2.
It was also admissible tó show the extent of the covenant in mitigation of damages. The complaint was that “Milner, Jones & Milner, established a claim to the timber on one hundred and sixty acres of said land,” and thereby authorized the appellee to recover for all timber thereon, while the deed covenants against “a claim to some of the timber on a portion of said land.” It was clearly competent for the appellant to mitigate the damages by showing that his covenant did not extend to all the timber on a portion of the land, but to some of it, and what portion of it. The deed was therefore admissible as a link in the chain of evidence; but as it was not offered for this purpose, the court did not err in excluding it.— Thompson v. Drake, 32 Ala. 99.
The complaint describes two sub-divisions not conveyed in the deed; and it was admissible to lay a predicate to show by proof that a part of the four forty acre subdivisions surveyed and ran around and marked off by the witness, who proved the value of the timber thereon, was not conveyed by the deed from appellant to appellee, and thereby mitigate the damages. — 37 Ala. 369. The deed was admissible for the purpose for which it was offered in *273the first instance, as shown in the bill of exceptions ; but not in the second, “for proving the purchase-money paid for said timber.” The complaint showed that fact as clearly as the deed, and it is not error to exclude evidence, to prove a fact admitted by the pleading of the party against whom it is offered. — Alabama and Mississippi Railroad Compang v. Sanford & Reid, 36 Ala. 703. And as the offers to introduce the deed were distinct and separate, the court erred in not admitting it for the purpose for which it was first offered. There is an ambiguity in the last clause of the deed as copied into the record, to which the attention of the parties should be directed. If it is truly copied, it presents a question of some difficulty, which it is not now necessary to decide.
4. The charges given by the court were as favorable to appellant as the law and facts authorized, and we perceive no error in the charges refused by the court.
Under the covenant set out in the complaint, the right of appellee to recover for a breach of it, did not depend on his being deprived of the possession and enjoyment of the timber. He may have sold it all and delivered it to the purchaser; yet, Milner, Jones & Milner, might have established their claim to it and recovered the value of it from appellee; if so, appellant would be liable on the covenant. What would have amounted to such an establishment of the claim and breach of the covenant, as would have rendered appellant liable, are questions not arising on this record — they are closed against appellant by the judgment by default. — Sterrett’s Ex’rs, v. Kaster, supra, 17 Ala. 339.
This disposes of all the charges asked and refused, except the last, which was properly refused upon the evidence set out in the bill of exceptions.
For the error pointed out, the judgment on the verdict on the execution of the writ of inquiry is reversed, and the cause remanded.
BYRD, J.1. Both parties have severally made an application for a re-hearing. The counsel for appellee insist that the court below did not err in the respect pointed out in the *274opinion heretofore delivered. After a careful reconsideration of that matter, we are confirmed in the correctness of the conclusion attained thereon, and adhere thereto.
2. The counsel for appellant insist on two grounds for a re-hearing: 1st. That the complaint does not set forth a substantial cause of action. This point is pressed upon the consideration of the court with great earnestness and ability. But we conceive that under the provisions of the Code, the complaint is sufficient after judgment by default, and when no objection was taken to it in the court below. Seetion2811, (2405) of the Code applies to all judgments, and is more comprehensive than any provision of the English statutes of jeofails. And we can see no distinction to be taken between a judgment by default, after verdict on writ of inquiry, and a judgment on verdict on issue joined, in this respect. We feel constrained to adhere, therefore, to the conclusion of the former opinion on this question.
2. That the deed of Mrs. Hamil was admissible for the purpose indicated in the bill of exceptions. We might have put the rejection of that instrument as evidence by the court, on the ground that it was not attested and proven in the form required by the Code to entitle a party to use a transcript of it as evidence. But we preferred to put it on the higher ground that the deed was inoperative and void, and being so, it was incompetent, as it showed “a state of facts inconsistent with the plaintiff’s right to recover at all.” — 37 Ala. 369.
For, as is alleged, if the right of Milner, Jones & Milner was alone founded on that deed, they clearly had no right to a recovery against appellee for any timber on the land conveyed by appellant. If the affidavit of appellant, made to procure the vacation of the judgment by default, had set out the fact — if it is one — that the claim of Milner, Jones & Milner to the timber on the land conveyed by appellant to appellee, was founded on the deed of Mrs. Hamil only, and that such claim had never been legally ascertained, it is probable that the court below would have set aside the judgment by default, on terms. But the affidavit is so general, that the court might, without any violation of the rules which ought to govern the exercise of judicial discretion, properly *275have refused to do so. This is a matter solely within the discretion of the court below, and not reviseable here. Nor do we intend to make any intimation which will interfere with the exclusive right of the court below in this matter.
Both applications refused.