text:
    WOOD vs. DUNCAN.
    1. The act of eighteen hundred and seven, (Aik. Dig. 209,) inhibits all contracts, the object of which is' to secure the payment of money or other thing, lost upon a horse race, or other description of gaming.
    2. The maxim, in pari delicto potior est conditio possidentis, does not avail one who is no party to the transaction, in which the fault is alleged.
    3. Money deposited as a wager, while in the hands of-the stakeholder — either before or after the happening of the event upon which the forfeiture depends — is in transitu; and may be arrested by the bailor.
    Error to the, Circuit court of Benton county.
    Assumpsit, for money deposited as a wager — tried by Shortridge, J.
    The defendant in error brought an action of assump-sit, in the Circuit court of Benton, to recover of the plaintiff the sum of three hundred dollars, the amount of a wager, deposited in his hands as a stakeholder, to be paid over, according as the event of a horse race agreed to be run between the defendant and a third person, might ascertain the one or other to be entitled to it.

      To the declaration, there was a demurrer, which being overruled, the case was tried on the general issue. On the trial, the presiding judge sealed a bill of exceptions, from which it appears that the defendant and Erby Boyd, each wagered with the other, the sum of three hundred dollars, upon the event of a horse race thereafter to be run; each deposited that sum in the hands of the plaintiff, to be paid over to the winner. The race was run — Boyd’s horse was ti e suca ssful competitor, and the result so announced by the judges, when the defendant gave notice to the plaintiff not to pay over the wager to Boyd, and demanded the same; which demand was disregarded.
    The court, on motion of the counsel for the plaintiff in error, refused to instruct the jury, that the facts proved did not entitle the defendant to a recovery, but charged them, “ that if they believed from the evidence, that the defendant, as stakeholder, had received monies to abide the event of the race, from the plaintiff, and before the same was paid over by the stakeholder to the winning party, he, the said defendant, had been notified not to pay over the same, that the plaintiff was entitled to recover.” To which refusal to charge, and charge as given, the plaintiff in error excepted, &c., and here specially assigns for error, the decision of the court upon the questions of law determined against him.

      Chilton, for plaintiff in error.
    Martin, contra.
   COLLIER, C. J.

By the act of eighteen hundred and seven, entitled “ an act to prevent the. evil practice of gaming,” (Aik. Dig. s. 1, p. 209,) it is enacted, that “ all promises, agreements, notes, bills, bonds, or other contracts, judgments, mortgages, or other securities, or other conveyances whatsoever, made, signed, given, granted, drawn or entered, or executed by any person or persons whatever, after the passing of this act, where the whole or any part of the consideration of such promise, agreement, conveyance or security, shall be for money, or other valuable thing whatsoever, laid or betted,” &c., “ at any horse race,” &c., “ or for reimbursing or re-paying any money knowingly lent or advanced at the time or place of such play, horse racing,” &c., “ shall be utterly void and of no effect, to all intents and purposes whatsoever.” This statute is drawn with great particularity, and evidently designed, as its terms indicate, to inhibit all contracts, no matter by what solemnity evidenced, the object of which may be to secure the payment of money or other thing lost upon the event of a horse race, or other de^ scription of gaming.

It must be remembered, that this is an action against the stakeholder, who sets up no claim whatever to the money. The agreement of the defendant and Boyd, by which the money was deposited in the hands of the plaintiff in error, had not been entirely executed by a payment to Boyd, before the defendant demanded its return to him, and it may never be consummated. If the plaintiff was to refuse, Boyd could never coerce him: the act cited will always operate as a veto against a judgment in his favor. But the same obstacle to a recovery does not interpose itself against the defendant— be has parted with his money upon an agreement invalid in point of law, and placed it in the hands of one who is no party to that agreement, and claims no interest, as derived under it. Upon what acknowledged principle can he assert a right to retain it 1 — not as the agent of Boyd, for he, it has been shown, never was in possession of it, and could not, of course, deposit it in. the keeping of any one. The agreement to wager between the defendant and Boyd, could not make the plaintiff the agent of the latter, for the law does not recognise an agent who is not amenable to his principal; and we have already said, that it will not lend its authority to Boyd against the plaintiff.

It is no answer for the plaintiff to say to the defendant, that in depositing with him the money he now seeks to recover, he offended against the policy of the law. The maxam, in pari delicio potior est conditio possi-dentis, will not avail one who was himself no party to the transaction in which the fault is alleged. If Boyd had received the stake, and the defendant were seeking a recovery of him, he might successfully resist the demand, by calling to his aid the influence of that maxim. But the defendant has parted with his money, without the inducement of a consideration, either good or Valuable, and upon an agreement void by the law : the plaintiff retains it, without any claim, either in his own right, or on account of another; according to well settled principles, he is bound ex cequo el bono, to refund it to him who once had possession, and has never, by any legal act, parted with the right.

The precise question arising in this case, was largely discussed in Yischer vs. Yates, (11 Johns. R, 23,) before the. Supreme Court of New York; and Mr. Chief Justice Kent collates and reviews, with his accustomed force and clearness, the English and American cases on the subject. His conclusion is, that the action is founded on the dis-affirmance of the unlawful contract, and. on the ground that it is void, and that the money ought not to pass to the winner. After the event has happened, and the money paid to the winner, it is then too late for the loser to reclaim the money from him, for then the maxim, in pari delicto, &c. applies; but before the event has happened, either party may repent, and re-call the deposit-money, even out of the hands of his opponent; and if the money is still with the stakeholder, the happening of the event is immaterial, and either party may at any time arrest it, for it is still in transitu. The decision of the Supreme court, it is true, was overruled by the Court of Errors, by a vote of fifteen Senators against six; — neither of the Judges of the Supreme court, nor the Chancellor, appear to have been present. Mr. Senator Sandford, alone, delivered an opinion, which, though a-fine specimen of metaphysical reasoning, falls far short of overturning the very perspicuous and forcible legal argument of the learned Chief Justice.

We have not thought it necessary to consider more particularly, the correctness of the judgment on the demurrer to the declaration, inasmuch as the view we have taken of the charge to the .jury, covers every assignment of error, and is decisive of the case.

The judgment must be affirmed.


source: Caselaw Access Project

author: GOLDTHWAITE, J.

license: Public Domain

text:
    WHARTON vs. FRANKS.
    1. The statute which requires an endorsement of the cause of action on a writ, introduces no new rule of pleading; nor does it confine the discretionary powers of the court in relation to pleading — it merely dispenses with the service of a copy of the declaration, which was previously required.

      %. After plea to a declaration, it will be presumed that the leave of the court was obtained to amend the endorsement on the writ, conformably to the justice of the case — and to the declaration.
    3., The Circuit courts exercise a just discretion in relation to the whole subject matter of pleading, which will not be reviewed.
    4. A count, which alleges that money has been laid out for another, without charging directly that it was at the instance of defendant — is bad on demurrer.
    5. Where a judgment on demurrer is reversed, and the cause remanded — a respondeos ouster will be awarded.
    Error to the Circuit court of Jefferson.
    Debt on judgment — tried by Chapman, J.
    In this case, the endorsement on the writ stated the cause of action, to be a judgment for one hundred and fifty dollars and sixty-five cents, recovered on a day mentioned by plaintiff, of defendant, in South Carolina. The declaration contained two counts. The first was.in the usual form of declarations in debt on foreign judgment, and stated the amount of the judgment to be one hundred and fifty-five dollars and sixty-eight cents. The second count alleged that defendant was indebted to plaintiff in a further sum mentioned — for so much money laid out and expended by plaintiff, for the use and benefit of defendant, and “ at his implied instance,” &e.
    To the first count of the declaration, defendant craved oyer of the endorsement of the cause of action on the writ, and plead the variance between the said endorsement and the declaration, in abatement; and demurred to the second count.
    To the plea of defendant, plaintiff demurred, and joined in th. demurrer to the second count;
    Defendant also joined in the demurrer of plaintiff to the plea.
    Upon this state of the pleadings, it was considered by the court, that plaintiff’s demurrer to defendant’s plea in abatement be overruled; and that defendant’s demurrei* to the second count of plaintiff’s declaration be sustained —and the plaintiff not asking leave to reply; judgment was entered up for defendant.
    The plaintiff now assigned the judgment of the court, on the two several demurrers, as erroneous,

      Baylor., for plaintiff in error.

      Peck, contra.
   GOLDTHWAITE, J.

The plea in abatement denies, in effect, the legal sufficiency of the first count of the declaration, to charge the defendant, because it does not precisely correspond with the endorsement on the writ. By pleading this matter in avoidance of the action, as instituted, the defendant insists, that he has the right to compel the plaintiff to declare against him for a cause of action previously, and specifically described. It is obvious, that if this plea is allowed, it will be idle to talk of the discretionary power of the courts to allow amendments of the declaration, as without the consent of the defendant, they can never go beyond the endorsement of the writ, or permit a mere mistake to be corrected.

The statute which requires the endorsement on the Writ, was not intended to introduce any new rule in relation to the manner of pleading, or to confine the discretionary powers of the courts in relation to them. It merely dispenses with the service of a copy of the declaration with the writ, which previously to its enactment was required — (Aik. Dig. 278.) If we consider the endorsement as subject to the same rules which prevailed before, With regard to, declarations, we give complete effect to this statute, and do no violence to' any rule of construction. It cannot be supposed, that it was the intention of the general assembly, when it dispensed with the service of the declaration, to introduce a rule which would be, if as contended for,by the defendant below, infinitely more harsh and oppressive.

No one can doubt the power of the courts previous to this statute, to permit an amendment conformable to the justice of the case : if a mistake similar to the one committed in the endorsement on the writ, had been made in a declaration, its correction would have been a matter of course.

As the defendant has pleaded to this declaration, we would presume, if it was necessary, that the leave of the court had first been obtained.

The case of Johnson vs. Perry, (4 Stew. & Porter, 49,) which determines that the- omission of an endorsement on a writ, is fatal, when properly pleaded in abatement —does not touch this question. The omission of a declaration would be fatal, yet no one questions the power of the courts to authorise an amendment. In relation to the whole subject matter of pleadings, the Circuit courts must necessarily exercise a just discretion ; if the declaration does not substantially correspond with the process, they can set it aside on motion, or if for any cause it becomes necessary to amend or substitute other counts, they are invested with the authority so to do, and the exercise of their discretion will not be reviewed.

It is impossible to conceive that the courts will countenance amendments oppressive in their consequences, or refuse those which are necessary to advance the justice of a cause.

The plea in abatement camíot be sustained, and the judgment on demurrer should have been in favor of the plaintiff below.

The second count in the declaration is bad, and the demurrer to it very properly sustained. The objection to it is, that it is an attempt to innovate on settled and well established forms. It is true, that money may be laid out for another, which the law will imply to have been laid out at his instance, but we know of no case in which a declaration has ever been allowed, without charging the legal implication in direct terms. What the circumstances are, from which the legal implication arises, should be stated, and the court can then determine if they are sufficient in law ; but here the plaintiff undertakes to charge the defendant, without a statement or allegation of facts from which a legal implication can arise.

Let the judgment be reversed, and judgment of respon-deos ouster here entered, and the cause remanded for further proceedings.


author: COLLIER, C. J.

text:
    JONES et al. vs. SIMS & SCOTT.
    1. The shipper of cotton, cannot recover for its loss, of all the owners of a boat carrying goods, &c. for hire, where he makes a special contract with some of the joint owners, (without the knowledge of the others,) by which the freight, is to go in ex-tinguishment of a demand of a shipper, against the owners, with whom the contract was made.
    Error to the Circuit court of Tuscaloosa county.
    Case against a common carrier, for negligence — tried before Chapman, J,
    The defendants in error brought an action on the case, against the plaintiffs, in the Circuit court of Tuscaloosa, to recover of them the value of one hjmdred bags of cotton. The plaintiffs in error are charged in the usual form as common carriers, with having received on board the steam-boat Warrior, (of which they were joint proprietors, &c.) one hundred bags of cotton, at the port of Tuscaloosa, to be carried thence to the city of Mobile: all of which, by reason of the carelessness, negligence, &c. of the plaintiffs, was not delivered, but wholly lost, &c. The ease was tried on the general issue. At the trial, the presiding judge sealed a bill of exceptions, from which it appears that the defendants, previous to the shipment of their cotton, were owners of an interest of one half in the Warrior — that Hammond, one of the plaintiffs, during the time of the defendants’ part-ownership, was master, and Donaldson, (who had died previous to the commencement-of the action,) was clerk on the boat.
    It appeared further, that on the ninth of September, eighteen hundred and twenty-eight, the defendants sold to Messrs. Hammond and Donaldson, their interest' in the Warrior, and both sellers and purchasers entered into an obligation each to the others, in the penal sum of seven thousand dollars, conditioned as follows:
    “ The condition of the above obligation is such, that the said parties of the second part, have purchased of the ■ said parties of the first part, one half of the steam-boat called the Warrior, (and which is now lying on the Black Warrior river,) with all the tackling, rigging, and furniture, &c., for the sum of three thousand five hundred dollars, to bebe paid in freight, as-follows: That the party of the first part shall have the right of shipping at each down passage of said boat, two hundred bales, or less, of cotton, at the lowest cash price, by giving the said parties, or the agent of said boat, notice, on the day of arrival of said boat, the number of bales they intend shipping; and that all over two hundred bales, are to be paid for by the parties of the first part, in cash, to the parties of the second.
    “And it is further agreed and understood by -both parties, that the parties of the first part shall further have the right of shipping as much up-freight as they may furnish on board said boat, on the same conditions as expressed above: each shipment up or down is to be charged to the party of the first part, as payment in part of said note of three thousand'five hundred dollars. It is also agreed and understood by each party, that if the said parties of the second part refuse to receive freight as above expressed, from the party of the first part, upon application, or for so much as they are entitled to; by giving the notice above mentioned, then the party of the first part shall have the right of charging interest on so much as would 'amount to the freight they were entitled, until the parties of the second part comply with their engagement.” This is so much of the contract of the parties, as a proper understanding of the case requires to be recited.
    Bearing even date with the contract, a promissory note was made by Messrs. Hammond and Donaldson, in these words:
    “ $3500 00.
    “ From the first day of December next, until the first day of June following, we promise to pay Sims & Scott, or bearer, thirty-five hundred dollars, to he discharged in freight during the ensuing winter and spring, at the lowest cash prices, value received — This 9th day of September, 1828.

      “ John W. Donaldson,

      “ Larkin Hammond.”
    ‘ And it is to this note that the contract refers.
    The shipment of the cotton was proved, as alleged in the declaration, and also that it was lost — all of which occurred on the first or second trip from Tuscaloosa to Mobile, after the sale of the defendants’ interest in the Warrior.

    Whereupon the counsel for the plaintiffs in error, moved the court to instruct the jury, that if they believed from the evidence, that the cotton was shipped under the agreement between Messrs. Hammond and Donaldson •and the defendants in error, that the freight should go towards the payment of the debt incurred by the former, in the purchase of the defendants’ interest in the boat, —that then Jones & Horner (who were sued as joint owners and co-partners with Hammond, in running the Warrior for freight,) were not responsible for the loss of the cotton; which instruction was refused by the court, and the plaintiffs in error excepted. &c.; and a verdict being found against them, and judgment thereupon rendered, they prosecuted their writ of error to this court.

      Peck, for plaintiffs in error.

      Porter, contra.

      Peck, for plaintiffs in error.
    The plaintiffs below were consignors, and gave in evidence, a bill of lading, but no other evidence of title. We insisted below that the action should have been brought by the consignee — ■ (1 Peters’ Rep. 386, 495; 1 Chitty on PI. 3, 6, 7; 5 Pe-tersdorff, 167; Jones on Bailments, 107,1-I. & I.; Griffeth vs. Inglesden, 6 Serg. & Rawle, 429; Sargent vs. Morris, 5 Eng. Com. Law Rep. 283.)
    ■ The court charged, that joint ownership in the vessel made plaintiffs partners per se, without any other evidence of partnership. Plaintiffs here insist that this charge was erroneous, and that they were not liable as co-partners in this action — (14 J. R. 318; Gow. 5, 270; 17 J. R. 535; 3 Kent’s Com. 151, 154, J55; 15 Mass. 370; 1 J. R. 112; 6 Pickering, 335; 3 Kent, 16,17; 4 J. C. R. 522; 12 Mass. Rt 54; 20 J. R* 611; 2 Yesey & Beam, 242.) The case of Dodington vs. Ha]let, does not militate with the doctrine as applicable to this case, be-cause it recognises a distinction between an original part owner, and his representative, and a purchaser for valuable-cOAsideration — (i Yesey, sr. 496.) Spencer, C. J. in the case of Mumford vs. Nichol, (20 J. R. 633,) says, that ship owners may, by agreement, become joint tenants or co-partn'ers in ships. There is no evidence sufficient to shew that in this case Jones & Horner were part owners at the time of the loss.
    There was a special agreement between defendants in error with Hammond and Donaldson, by which defendants sold to II. and D. one half of the boat, which they owned before that time — by which agreement they were to be paid in freight. We insist that inasmuch as this was a contract made by Sims & Scott with H. and D. who were master and clerk on the boat, without the knowledge of Jones & Horner, and not within the scope of the authority of the master, it must be considered the contract of the master only, not binding on the owners, and that H. and D. only are liable, the cotton being shipped under the agreement. To bind the owners, the master must contract within the scope of his authority— (15 Mass. 372, 373; 1 J. R. 318; Gow. 5, 270; 17 J. R. 535; í J. R. 112, 114; Abbot on Sh. 98; l'Taunt. 391; 19 J. R. 235; 11 Mass. 99; 2 Camp. 529; 4 Pickering, 456; 2 Wash. Cr. Co. R. 297, 19; 3 ibid. 495,501, 503.)
    There was a verdict for John Jones, one of the parties, charged on a joint contract, and judgment should have been for defendants below — (Abbot on Sh. 82, 83; 2 J. R. 212; 11 J. R. 113; Jones vs. Williams, 2 Wash. C. C. R, 482.)
    Judgment should have been final for defendants below on demurrer; — because there was a misjoinder of liabilities, in charging defendants below as joint-owners, and as co-partners .- — and because (some of the' counts were in assumpsit, and others in case, a mis-joinder which was not amendable — (1 Chitty’s PI. 548 ;• Gould on PL Ch. 4, 98, 219.)
    Porter,■ for defendants in efror.
    The Only questions which can arise, are upon the charges asked and refused by the court below. These are—
    1. If the jury believed from the evidence, the particular cotton was shipped under the agreement, plaintiffs in error were not liable for the loss.
    2. If the jury should believe from the evidence, that the cotton was shipped Under the agreement, and that the freight went toward payment of Hammond and Donaldson’s debt, plaintiffs in error were not responsible.
    Both these requests to charge, embrace the same principle.
    First — I need not cite authorities to sustain the proposition, that there must be evidence set out in the bill of exceptions, to sustain an objection to the charge of, or refusal of a court, to charge. If this be not done, the charge asked will be considered abstract.
    A charge asked must be pertinent to the issue — the record must show its pertinency, and in the case of evidence, the record must disclose that the proof was made.

      This being the principle, I then contend, that no part of the bill of exceptions in this case discloses, that proof was made, that the cotton charged to have been lost, was Shipped tinder the agreement between Sims & Scott, and Hammdnd & Donaldson.
    The agreement itself is no testimony to this point, because for aught that appears to the court, the amount which was stipulated to be shipped, had been exhausted. The court cannot say, therefore, what part of the agreement had or had not been performed. If the party, then, had desired to raise this question, he should have made his proof, that the freight of this cotton, went by the agreement of 'the parties, to discharge the debt, or that the cotton was expressly shipped under the agreement set out — and this evidence should have been set out in the record, so that the court may have known whether relevant to the issue, or sufficient to authorise the charge prayed.
    Again — The presumption, if any could arise, that the freight Was to go toward the debt of Hammond and Donaldson is negatived, by the testimony of McLosky, who, when asked a question, evidently intended to create this supposition-; and who denied having received the instructions that he need not pay freight, as arrangements were made at home, to pay it.
    Again — If, the court could legally draw an inference favorable to the supposition, that this particular cotton 'was shipped under the contract of sale, such inference would be met and strongly rebutted by the tenor of the bill of lading, which stipulates that the freight was to be paid in Mobile, by McLosky Sp Llagan^ the consignees.

      In the case of Sims & Scott and Jones, decided in 6 Porter, one of the exceptions relied on, was designed to raise the question, whether the plaintiffs in error could be charged, inasmuch as the vendees, H. and D., had agreed to pay for the share they purchased in freight. This question was raised upon the refusal to make a charge identical with that refused here.
    The court say, “ The question is not presented by the evidence recited in the bill of exceptions.” “ The bill of lading is prima facie evidence of what it contains.” “ It requires the freight to be paid by him,” (the consignee.) “The question is abstract from the proof ” — -(6 Porter, 164.)
    There is not, then, upon this point, a tittle more in the last bill' of exceptions, than in the first — In fact, there is more in the bill of exceptions in the case in 6 Porter, from which an inference may be drawn that this cotton was shipped under the agreement, because it was in proof there that Hammond and Donaldson were insolvent, and Sims & Scott wealthy — none of which proof exists in the present bill of exceptions.
    So far, then, as the bill of exceptions shews, the court was requested to make a charge on a particular point of law, in reference to a legal liability, when no proof had been submitted to the jury, that such was the state of the case.
    It is true, the plaintiffs proved that the cotton was theirs — but this amounts to no proof, of how the freight was to be paid.
    It is true, plaintiffs sold to Hammond and Donaldson, and under an agreement, were to receive pay, in freight r — but this embraces no proof, of how,much had or had not been paid — or whether this particular cotton was shipped under the agreement.
    Second — I can conceive of no ground upon which to charge upon Sims & Scott, a fraud upon Jones and the other owners—
    1. Because Sims & Scott, as has been decided in this court, had a right to sell their interest, without consulting the other joint owners — (2 Stew. & Por. 170; 6 Porter, 138.)
    If this sale was in good faith, (and there is nothing here negativing it,) then the moment Sims & Scott’s interest passed out of them, they, as a matte!" cf course, held the same relation to the boat, as the rest of the community, This relation, was one authorising the shipment of produce upon her, upon the usual terms, the payment of freight — and this relation, which the boat bore to Sims & Scott, as well as to the balance of the world, was one consequent upon the employment of the boat — (6 Porter, 164.)
    There was, then, nothing in the employment of the boat, by Sims & Scott, which would place them in a different attitude, towards the owners remaining in the concern, than that in which strangers stood. The question of how they were to be paid for the interest they had sold, was one between them, and Hammond and Donaldson. If the latter undertook to pay for the share they purchased in freight, to an amount beyond what they were entitled to, they of course became liable to the other joint owners. They could legally enter into no stipulation with Sims & Scott, by which Jones and the other joint owners could be deprived of their share in every bale of cotton shipped on the boat. To the amount of this share, Jones & Horner had a lien upon the cotton, and no part of the agreement between Sims & Scott, and Hammond and Donaldson, coaid have deprived Jones, as one of the joint owners, from seizing the cotton and retaining it until the freight was paid — (Whitaker’s Law of Lien, 95, 96.)
    The position assumed by the counsel for the plaintiffs in error, rests upon the false supposition, that the liability is consequent it pon the stipulations which existed between Sims & Scott and Hammond and Donaldson.

    Not so — It rests upon the fact of the employment of the boat, coupled with the fact of her negligent management: and upon the principle, that they who share the profit of such employment, must bear the loss of negligent management.

    If there was no fraud in the sale, then, the employment by Sims & Scott of the agents of the other joint owners, was no fraud upon them, because they were officers of the boat. They had been held forth to the world as competent to manage the boat; and if competent in respect to the world, a fortiori, so with respect to Sims & Scott, who would be presumed to know their capacity: and if the sale did any thing, it gave Hammond and Donaldson an additional inducement to manage the boat with prudence — and of consequence, thus far, protected, rather than injured, the rights of the other joint owners.
    The position of Sims & Scott, gave them no advantage over Jones and the other owners, than was held by strangers. The employment of the boat by them, was of no more advantage to them, than it would have been to strangers; they paid the same freight — were liable to the same dangers, and were entitled to the same remedy for losses. The sale by them to Hammond and Donaldson, whether a good one or not, left Jones and the other owners in statu quo: it neither infringed upon their rights as joint owners, or took from them, or either of them, one iota of the interest or profit which was accruing to them from the employment of the boat: and it will be recollected, also, that Hammond and Donaldson, as ofji-cers, had a claim upon these owners for their wages— which if they chose to receive in freight, cannot be visited upon the defendants in error.
    This is neither the case of an agent transcending his authority, or of a shipment made in violation of particular stipulations prescribed by the master — which is the case in the authorities cited by the opposing counsel.
   COLLIER, C. J.

The only question arising in this ease is, whether the shipper of cotton can recover for its loss, of all the owners of a boat carrying goods, &,c. for hire, where he makes a special contract with some of the joint owners, (without the knowledge of the others,) by which the freight is to go in extinguishment of a demand of the shipper against the owners, with whom the contract was made.

According to the English common law, the business of carrying goods for hire was considered a public employment, and the carrier, upon compensation being made, was obliged to carry the goods of all persons, offered him in the regular course of his business: and was only relieved from liability for a loss, by showing it to have resulted either from the act of God, or the public enemies— (Coggs vs. Bernard, 2 Ld. Raym. R. 909, 918; Rushforth vs. Hadfield, 6 East’s R. 525; 2 Bla. Com. 67.) And if he refused to carry goods, having the convenience to do so, he would have been liable to an action, unless he had reasonable ground for the refusal — (Jackson vs. Rogers, 2 Shower’s R. 129 ; 1 Shower’s R. 104, 105; 1 Saund. R. 312, n. 2; Batson vs. Donovan, 4 B. &. Ald. R. 32, per Holroyd, J.; Edwards vs. Sherrat, 1 East, 604.) It is not necessary, that there should be a special agreement for hire, to entitle the carrier to recover a compensation, or to render him liable in the event of a loss, for in the absence of an express contract, he may have an action of assumpsit, founded on a quantum meruit for the recovery of freight — (2 Shower’s R. 129; Moore vs. Wilson, 1 T. R. 660; 5 B. & Ald. R. per Abbott, C. J. p. 353.)

Thus we have seen, that in order to constitute a common carrier at common law, and to impose the liabilities incident to that character, it is necessary that hire should have been paid, or that the right to demand it, exists— (2 Kent’s Com. 464; 1 Salk’s R. 282.)

If a man undertake to carry goods, without any compensation for his trouble, he will only be responsible for a loss, happening by the negligence of himself or his agents. In the case at bar, the plaintiffs in error are not sought to be charged for a loss happening on a gratuitous bailment — so that it is immaterial what may have been the proof as to the manner of the Joss, if the plaintiffs (Jones & Horner,) were excluded by the contract of the defendants with Hammond and Donaldson, from receiving compensation, they cannot be made liable as carriers.

The case of Bignold et al. vs. Waterhouse et al. (1 M. & Selw. R. 255,) is not altogether unlike the present in its facts, and in principle, it is directly in point. The plaintiffs were bankers, residing at Norwich, and the defendants proprietors of the mail coach from Norwich to London. Early in the year eighteen hundred and ten, a person, who was one of the proprietors of another coach, called the old Norwich coach, intending to relinquish a part of his interest in that concern, and having promised the refusal to the plaintiff) T. Bignold, the defendant, Coldwell, proposed to T. Bignold, that if he would give up his claim to that promise, his own family and private parcels, should go free by the mail coach; to which ■ proposal T. Bignold, after some time, acceded. From that time, parcels were sent two or three times a Week, free of expense, until at length, in eighteen hundred and twelve, a parcel was sent by the plaintiffs, to a house in London, containing bills and notes to a large amount, which was lost. There was no evidence that any of the proprietors of the coach, except Coldwell, had any knowledge of the agreement made between himself and Bignold; and an action being brought against all of them¡ to recover for the loss of the package, the plaintiffs were non-suited. A rule nisi having been obtained for setting it aside, and argued, Lord Ellen,borough observed: “ It appears to me, in this case, that there was not any contract with the defendants, constituted in such a manner as to bind more than one of them. There was indeed a contract, and a fraudulent one, between T. Bignold and Coldwell, which was unknown • to the other defendants, to carry the family and private parcels of Bignold, free of carriage, for a consideration moving to Coldwell alone,” Again — “ It (the parcel) was delivered to the defendants for the purpose of carriage, but not for a reward to all the partners; but for a reward which was to be intercepted by one only. It is a general rule, indeedj that where several are concerned together in partnership, notice to one is equivalent to notice to all; but that rule presumes that the transaction is bona fide. Here, however, the case is different; the agreement is made with one of the defendants for his individual benefit alone, and the others are not parties concerned, not being made privy to the agreement. It was incumbent, therefore, on the plaintiffs, to shew that notice was given to the other partners. I do not rely on the argument, that this was a bailment for the conveyance of the parcel without reward, and therefore the bailee responsible only for personal negligence; but the ground I take is this, that there was no contract at all between the plaintiff's and the defendants.” And with Lord Ellenbo-rough, the other judges of the King’s Bench concurred, and the rule nisi was discharged. We have considered thus at length the case in Maulé & Selwyn, because it seems to us so decisive of the one at bar. In that case, the contract was with but one of the owners of the coach — here, it was with two of the proprietors only of the boat: there, the reward was intercepted by one only —here, Messrs. Hammond and Donaldson, if the shipment was made on the footing of their agreement with the defendants, alone received the freight. Here, as in that case, the record furnishes no intimation that Messrs. Jones & Horner had a knowledge of the agreement between the defendants in error and Hammond and Donaldson, so that there is not the slightest ground to infer that they gave their assent to the arrangement, by agreeing to look to Hammond and Donaldson as their debtors primarily, for their proportion of the freight with which the defendants might credit Hammond and Donaldson.

So, in King & Mead vs. Lenox, (19 Johns. R. 235,) an action was brought against the owner of a ship, to recover for goods lost on a voyage from Calcutta to New York. It appearing that the plaintiffs contracted with the master of the ship himself, with the knowledge that he received their goods on his own account, and not in his character of agent for the owners; the court held that the contract was not made by any implied authority of the owners, arising out of the usual course of employment, and that the defendant was not chargable with the loss. To the same effect, are the cases of Satterlee vs. Groat, (1 Wend. R. 272,) and Allen vs. Seawell, (2 Wend. R. 327.) And in Butler vs. Baring, (2 Carrington & Payne’s Rep. 613,) Garrow, B. remarks, that “If persons be foolish enough to send parcels by a wagoner, for a hire to be paid to him, which is never intended to find its way into the pocket of the owner of the wagon, there the owner is not liable, in case the parcel is lost.” (To the 'same point are the cases of Walter vs. Brewer, 11 Mass. R. 99 ; Reynolds vs. Tappan, 15 Mass. R. 370; Thompson vs. Snow et al. 4 Greenl. R. 264, and Riley vs. Horne, 5 Bing. R. 217, 220, 221, in which Best, G. J. delivered a very learned and elaborate opinion.

We do not pretend to say that the owners of a boat shall always receive or be entitled to a reward, for the carriage of goods, in order to render them liable for a loss. If there was an agreement between the master and the owners, or between the owners themselves, by which the master in the one case, or some of the owners in the other, were to receive to their use exclusively, the freight earned in whole or in part by the boat, such an agreement would not exempt all the owners from liability; unless it was known to the shipper at the time his shipment was made. But we do say, that to charge the owners with a loss, where the contract was made through a master, the contract should be made relative to the usual employment of the boat — (19 Johns. R. 236; 2 Wend. R. 327.) This conclusion clearly results from the law of principal and agent; and that where there was an agreement between the shipper, and some of the owners, by which the latter were alone to receive the freight, the owners, not benefitted by the shipment, are not liable for a loss. The authorities already cited are full to this point — (See further, Taggard and others vs. Loring, 16 Mass. R. 336; East India Co. vs. Pullen, 2 Strange’s R. 690.)

It will follow, from what we have said, that if the defendants in error shipped their cotton on the Warrior, under their agreement with Hammond and Donaldson, that Jones & Horner are not liable for the loss, and that the Circuit court should have instructed the jury as asked.

For the refusal thus to instruct them,.the judgment is reversed and the case remanded.


author: ORMOND, J.

text:
    MOODY vs. KEENER.
    1. Where a judgment is reversed, and a cause remanded, the court below has plenary control over every question' not expressly adjudicated, which may arise in the cause.

      2. A clerical error in the proceedings, verdict or judgment, may be amended on motion, and this as well after error brought as before.
    3. As to what constitutes sufficient evidence to authorise an amendment— Quere.

    Error to the Circuit court of Tuscaloosa.
    Motion to amend judgment, heard by P. Martin, J.
    This case was formerly before this court, and was reversed and remanded — (7 Porter, —.) A motion was then made in the court below, by the defendant in error, to amend the entry of judgment in the cause; nunc pro tunc, which motion was sustained by the court, and the verdict of the jury amended, and a judgment rendered thereon. A bill of exceptions was sealed, which discloses — That on the hearing of the cause, the judge’s docket for March term, eighteen hundred and thirty-seven, was exhibited, which, opposite to the statement of this case, contained the following memorandum, to wit: “ Dem. overruled, Jury 1 — verdict for pl’ff;” and also the file of papers of the cause were exhibited, and upon the writ was a writing in these words, to wit: “We, the jury, find for the plaintiff one thousand and seventy-five dollars, with interest and costs of suit.” There was no date to this writing, nor was it signed by any person, nor was there any evidence at what time, or by whom it was written. There was no other evidence, and the court rendered judgment, the plaintiff below releasing the interest. To the sufficiency of this evidence to au-thorise the amendment, the defendant below excepted.
    The assignments of error are—
    1. The court below erred in sustaining the motion of the plaintiff below to amend the entry of judgment nunc pro tunc, and in the judgment rendered upon said motion.
    2. The court erred, as set forth in the bill of exceptions.
    Peck, for plaintiff in error.

      Porter, contra.
   ORMOND, J.

It is objected by the counsel for the plaintiff in error, that the effect of a judgment of this court, reversing and remanding a cause, is to direct a venire de novo to issue, and that no other order can be taken in the cause. When a judgment is reversed by this court, and the cause remanded to the court below, without particular directions how to proceed in the cause, the court below has the same power as to all questions arising in the cause, not expressly adjudicated by this court, that it had in the first instance. It is also supposed, that as the judgment was reversed for an error in th.e judgment, arising out of the verdict, that therefore the court could not direct an amendment of the verdict.

To understand this objection, it will be necessary to consider in what aspect the case was presented in this court. The action was on the case, against the defendant, as post master, for negligence in the management of his office, by which the plaintiff lost a sum of money; to which the defendant pleaded the general issue. The jury found a verdict for the defendant, which was entered up by the clerk, “ that the defendant did undertake and assume upon himself, in manner and form as the plaintiff against him hath complained, and they assess the plaintiff’s damages,” &c.; upon which finding, a judgment was rendered. This court held that this verdict was not responsive to the issue between the parties, which was not whether the defendant had promised; &c. but whether he was guilty of the misconduct alleged in the declaration, and that therefore no judgment could be entered up on it.

It is difficult to conceive how the judgment of this court could interfere with the action of the court below. It determined nothing more than that such a finding would not sustain the judgment. The question, whether the court below had power to amend the verdict and judgment, is not so much as hinted at.

The power which is inherent in all courts to correct the mistakes of their officers, is too clear to admit of controversy, and this power extends not only to the pleadings in the cause, but also to the verdict and judgment. The case of Eddows vs. Hopkins, (1 Douglass, 375,) is a very striking case to establish the rule. In that case, a general verdict had been rendered on a declaration, containing good and bad counts, and a motion was made to amend the verdict from the judge’s notes. The court say, “ It is impossible to believe there was such an absurdity in the law, as that a mere mistake of the officer should be without a remedy; and that neither the judge or jury could proceed on what there was no evidence of before them. The court then mentioned a case where one Gibbon had been tried and convicted, but a mistake being discovered in the verdict, a consultation with all the'judges was held, when the mistake was corrected from the minutes signed by the jury, and the prisoner ex-' ecuted. Now here, there is this distinction, that if there was only evidence at the trial upon such of the counts as - were good and consistent, a general verdict might be amended, from the notes of the judge, and entered only on those counts; but that if there be any evidence which applies to the other bad or inconsistent counts, (as, for instance, in an action for words, where some actionable words are laid, and some not actionable, and evidence given of both sets of words, and a general verdict,) there thepostea cannot be amended, because it would be impossible for the judge to say on which of the counts the jury had found the damages, or how they had apportioned them; that in such a case, the only remedy is by awarding a venire de novo. But in this case, the rule to arrest the judgment, was discharged, and the order made absolute” —(See also The King vs. Keat, 1 Salk. 48; Petrie vs. Hannay, 3 Term Rep. 659 ; Doe ex dem. Church vs. Perkins, 3 Term Rep. 749; Williams vs. Breedon, 1 Bo. & Puller, 329; Cromwell vs. Grumsden, 1 Ld. Raym., 335; Mayhoe vs. Archer, 1 Strange, 513; Newcombe vs. Green, 1 Wilson, 33; — so it has also been held in this court— 1 Minor, 170, 395; 2 Stewart, 448; and in the case of Goldthwaite vs. Wilkerson, 1 Stewart & Porter, 159, the court sustained an amendment to a judgment, after the lapse of several years.

There can not, indeed, be any doubt as to the power 'of the court to amend a clerical error in the pleadings, verdict or judgment; but it Is insisted that this cannot b'e allowed after error: there is no foundation for the objection. That the postea may be amended after join-der in error by the judge’s notes, (see Petrie vs. Hannay, 3 Term Rep. 659; Doe ex dem. Church vs. Perkins, 3 Term Rep. 749.).

In Blakey vs. Birmingham, (2 Strange, 1132,) after error brought, the court amended a judgment, which ran that the plaintiff should “ recover,” instead of “ do recover,” it being a misprision of the clerk.

In Moody vs. Stracey, (4 Taunton, 588,) a motion was made to amend the declaration by inserting the letter “t” in the defendant’s name, pending a writ of error which had been brought on account of the omission, and allowed.

It is unnecessary to multiply cases, which might be cited to an almost indefinite amount, to show the existence of the rule. The cases cited by the defendant’s counsel merely show that an error which is not a clerical misprision cannot be amended.

What evidence will authorise the court to make the amendment, is a much more difficult question, and to the examination of that we will now proceed.

The amendment is made, in most cases, from other parts of the record, but it may be made from notes taken by the judge at the trial, by. notes of counsel, or even by affidavit of what took place at the trial, and it has even been held, by the memory of the judge who tried the cause — (Cro. Charles, 338; Buller’s N. P. 320.)

In Mayhoe vs. Archer, (1 Strange, 513,) & motioh was made for leave to amend a special verdict, upon the affb davit of one of the witnesses at the trial. The court was of opinion, that a special verdict might be amended by notes taken by the clerk at the trial, or on proof of the certainty of what was given in evidence. So, in Newcombe vs. Green, (1 Wilson, 33,) a particular fact found improperly by the jury, was amended by the notes of the judge.

In an action brought against an executor, judgment de bónis propriis was entered by mistake; the court permitted it to be amended — (Short vs. Coffin, 5 Burrows, 2730.)

In debt upon . a mutuaiis, the judgment was entered up as of a date befan the borrowing; the court directed it to be amended —(Parsons vs. Gill, 1 Salk; 50, and 2 Ld. Raymond, 895.)

Thus, authorities are sufficient to show, that a Clerical error is amendable, and the evidence upon which courts rely in directing the amendment to be made.

In this case, the court directed the amendment to be made on the evidence afforded by the notes of the judge, which were in these words: 11 Detn. overruled, Jury 1— verdict for the plaintiffand also on a writing found on one of the papers of the < ause, (the writ,) in these words: “We, the jury, find for the plaintiff one thousand and seventy-five dollars, with interest and costs of suit:” there was no evidence by whom, or when it was written, and no other evidence was offered in support of the motion.

A majority of the court think this evidence insufficient to authorise the amendment. Had there been any proof that the writing found on the writ was the verdict rendered by the jury, it would have been sufficient: this proof could be made by any one of the jury, by the clerk, or by any other person who knew the fact. The entry on the judge’s docket is not considered sufficient, because the question to be solved is not whether the jury rendered a verdict, but what were the terms of the verdict. The original entry made by the clerk shows, that the jury rendered a verdict, although such an one as could not sustain the judgment, and the docket of the judge does not show any thing more than that a verdict of some kind was entered.

My own opinion is, that the entry on the docket of the judge, and the writing on the writ, were sufficient to authorise the amendment. The judge’s minutes show that the jury rendered a verdict for the plaintiff. That must have been a verdict on the issue of not guilty, for it cannot be reasonably inferred that the court would have received any other verdict from the jury, than one responsive to the issue, even if we can suppose that the parties themselves would not have objected to it. The memorandum on the writ is still more conclusive. It is a paper in the custody of the clerk; was in possession of the jury, and therefore, I think in the absence of all proof calculated to discredit it, that the inference cannot be resisted, that it was made by the jury, and is in fact their verdict; which the clerk afterwards entered improperly on the minutes. It is true, as urged by the plaintiff’s counsel, that the jury may deliver their verdict orally, but we know the practice to be different, and that the uniform course is for the jury to write their verdict, and generally on one of the papers belonging to the tile. I acknowledge the force of the reasoning urged by the majority of the court, that the papers and records in the clerk’s offices of the State are in many instances kept carelessly, and that access to them is easily obtained; and I acknowledge, also, that if any proof had been made, calculated to throw discredit on the memorandum, —as for example, if there had been a former trial in the cause, or if the papers had been out of the possession of the clerk, there would be force in the objection: but in the absence of any such proof, I think the evidence afforded by the memorandum on the writ, especially when coupled with the entry of the judge, entirely sufficient to warrant the amendment made by the court below.

The opinion of the majority of the court is, that the evidence upon which the court below amended the verdict, was insufficient. The judgment is therefore reversed, and the cause remanded for further proceedings in conformity with this opinion.


text:
    THE STATE vs. DUNCAN.
    1. Where a statute introduces a new offence, and prescribes its constituents, without reference to any thing else, — an indictment founded upon it will be sufficient, if it describe the of-fence in the terms of the act.
    2. The words “charged with a capital offence,” in the statute, (Aik. Dig. 124, sec. (33,) must be understood tornean a charge made in legal form.

    Error to the Circuit court of Pike county.
    Indictment for concealing a slave, charged with capital offence — tried by Crenshaio, J.
    The defendant was indicted in the Circuit court of Pike, in two several counts. The first charged him with concealing “Ned, a slave, the property of him the said Isaac Duncan, so th,at he cannot be brought to condign punishment — the said Ned being then charged with a capital crime, to wit, with the crime of having committed an assault and battery with intent to kill, on the person of Archibald J. More, a white person, contrary to the form of the statute,” &c. ’
    The second count is in the same form, save only it charges the carrying away of “Ned,” &c. instead of concealing him, &c. To both of these counts, the defendant pleaded “not guilty,” and was put on his trial.
    There being no proof offered to show that legal proceedings had been instituted against A'ed, for the capital crime supposed to have been committed by him, the defendant moved the court to charge the jury, that a mere verbal charge of Ned’s guilt, though he were so in fact, would not be sufficient, “ without showing that proceedings of a legal nature had been instituted which charge the court refused to give, but charged the jury, that if they believed that the slave was guilty of a capital of-fence, and that defendant, knowing his guilt, did run him off, or conceal him, so as to prevent him from being brought to condign punishment, it was sufficient, although no proceedings of a legal nature.had been instituted against him.
    Whereupon the jury having returned a verdict of guilty, the defendant moved the court in arrest of judgment:
    1. Because the indictment does not charge an indictable offence;
    2. Because the indictment does not set out that any proceedings of a legal nature were instituted against the slave, whom the defendant is charged with having concealed.
    Which motion was overruled by the Circuit court, who thereupon referred to this court, the questions of law thereon arising, as well as those presented by the charge given to the jury.

      Attorney General, for the State.
   COLLIER, C. J.

The section of the statute on which this indictment is founded, is as follows:

“ If the owner, or any other person having charge or government of any slave, who shall be charged with any capital crime, shall conceal or carry away any such slave, so that he or she cannot be brought to condign punishment, every owner or other person so offending-, shall forfeit the sum of five hundred dollars.”

Where a statute is introducjtive of a new offence, and prescribes its constituents without reference to any thing else — in an indictment founded upon it, it is sufficient to describe the offence in the terms of the act — (State vs. Brown, 4 Porter’s R. 410.) In the case before us, the statute provides for the punishment of the concealing or carrying away of a slave, charged with any capital crime, and if it does not introduce a new offence, at least makes an old one punishable under a new state of facts. ' Perhaps, at common law, it was indictable, to enable one against whom legal process had issued, for the commission of some crime, to elude an arrest; on the ground, that the party thus aiding an escape, had been instrumental in opposing the due course of law. So, to give aid and comfort to one who has actually committed a capital crime, subjects an individual thus acting, to punishment as an accessary, after the fact. But, in the present instance, the act does not propose to punish the of-fence of “obstructing legal process,” as known to the common law: it is necessary, in order to a conviction, that it should be shown not only that the action of the law had been thwarted, but it should also appear that the slave concealed or carried away, could not be brought to “ condign punishment.” And though the party might be guilty of the offence of obstructing process, yet, if the slave were to return and be tried, or be in legal custody, no indictment could be maintained upon the statute.

Nor does the act, cover the case of an accessary, after the fact. In order to convict one charged in that character, it is indispensable to show that the principal has been tried. The indictment, then, is founded upon the statute, and, conforming with precision to its terms, is free from all legal exception.

We think the language of the section under examination, is so explicit, especially when considered in connection with the section of the act immediately preceding, and every statute which contains the word “charged,” in connection with crime, as to leave no doubt, that in order to the consummation of the defendant’s guilt, it should have been shown that legal proceedings had been instituted before the slave was concealed or carried away by him. The preceding section requires that the owner1 of any slave charged with a capital offence, shall employ counsel. Now, as no counsel could be neededj until some step provided by the law had been taken, with a view to the punishment of the accused, the words, “ charged with a capital offence, must mean a charge made in legal form — (Aik. Dig. s. 62, p. 124; see also s; 50, p. 122; s. 37, p. 121; s. 15, p. 117; see. 13 and 14, p. 116, in which the term “ charged" is used in the same sense.)

In adjusting the meaning of the section on which the indictment is founded, it may be remarked, that it must not be extended by construction, so as to embrace a state of facts not authorised by the language employed; for1 the act itself is highly penal, and we must look rathef to its letter, than the intention of its framers. That the word “charged,” is one of indeterminate meaning, in common porlance, must be granted, yet we have shown that it is sufficiently defined, whenever used by the legislature in any enactment similar to that we are con-sideringj and being always used to indicate a charge made as the law provides, we must consider its legal meaning to have been determined.

In Benton vs. Benton, (1 Day’s Cases, 111,) it was held, that where a word or phrase of indeterminate meaning is used in a statute, its true import must be collected from its application to the subject matter, as explained and used by elementary and other law writers; and in Livermore, assignee, &c. vs. Bayley, (3 Mass. R. 487,) it was said, that in construing a statute, the proper sense of a term, in opposition to the technical, is not to be adopted when manifest inconvenience would result — (See also 7 Mass. R. 323.)

It is neediess to consider so much of the charge of the Circuit judge, as imposed upon theNtaie the necessity of proving the slave’s guilt of the capital crime, of which he is said in the indictment to have teen charged. If the court required more to te shown by the State, than the law made necessary, the defendant was net prejudiced, and as it could not possibly affect the judgment of the Circuit court, it is not important to enquire whether in a proceeding like the present, the guilt of the slave enters into and forms an essential ingredient of the offence. We will, then, as this question was not argued, leave it to be decided when it shall hereafter arise.

For the defect of proof in the particular stated, the judgment must be reversed, and the case remanded, that the defendant may be tried de novo, or such proceedings had in the premises, as may be considered by the Circuit court to be proper.


author: ORMOND, J. — The

text:
    MILLER vs. GOFFE et al.
    1. A writ of error will not lie to reverse an order dissolving ail injunction — the remedy provided by law being an appeal from the order of dissolution.
    Error to Tuscaloosa Circüit court, exercising chancery jurisdiction.
    Order dissolving an injunction, by P. Martin, J;
    In this case, plaintiff in error assigned as errofj the dissolution of an injunction previously obtained, to restrain defendants in error from proceeding to enforce the collection of an execution.

      Porter, for plaintiff in error.

      Attorney General, contra.
   ORMOND, J. — The

act of ninth Janüarys eighteen hundred and thirty-six, under winch the decree of the court below dissolving the injunction, is sought to be reviewed, does not authorise the case to be brought into this court by writ of error, but requires the complainant to take an appeal from the order of dissolution, and directs the Supreme court to determine the same at the first term. Under this statute, this co irt has hitherto held that a writ of error will not lie, and it must therefore he dismissed.


text:
    BARTLETT & WARING vs. MORRIS.
    1. Where a law is plain and unambiguous, whether expressed in general or limited terms, there is no room left tor construction, and a resort to extrinsic facts is not permitted, to ascertain its meaning.
    2. The title of a statute may exp'ain what is doubtful, but it cannot control what is contained in the body of the act.
    3. The rn’es of interpretation which apply to private statutes, do not differ from those applicable to public a..d general statutes.
    Error to the Circuit court of Mobile.
    Ejectment, tried before Pickens, J. Verdict and judgment for plaintiff.
    This case was brought up by bill of exceptions, to the charge of the presidmg judge, the insertion of which is here deemed unnecessary, as the material point raised, sufficiently appears in the statement contained in the subjoined opinion.
    Stewart, for plaintiffs in error.

      Salle, contra.
   GOLDTHWAITE, J.

At the trial of this case, in the Circuit court, the lessor of the plaintiff claimed title to the land in controversy, under the provisions of an act of an act of the general assembly of this State, which is in these words:

“An act for the benefit of Elizabeth Morris.
“ Sec. 1. Be it enacted, by the Senate and House of Representatives of the State of Alabama, in general assembly convened, That Elizabeth Morris, an alien of Mobile county, be, and she is hereby, authorised to inherit, and have and hold, such of the estates of her late uncle James D. Wilson, as she might have inherited by law, had she not been an alien ; and that the same shall not escheat to the State. — Approved 9th January, 1836.”

It was shewn in evidence, that Wilson was an alien, and and that he died seized and possessed of the land. The lessor of the plaintiff was also an alien, as was her father and mother, — the latter being the sister of Wilson, The Circuit court instructed the jury, that although Wilson was an alien, and the lessor of the plaintiff was also an alien, yet, that by virtue of the recited ait, such alien-age did not preclude iter f.om recovering the land sued for. If an error was committed by giving this instruction to the jury, it will be unnecessary to examine the other questions presented on the record, because their determination in favor of the lessor of the plaintiff will. not aid her, as her title depends solely on the act.

Some difference of opinion has been expressed by counsel, as to the rules of construction, applicable to statutes of this description, — the defendant insisting, that when they operate as grants, they ought to be strictly construed, and that nothing can be taken -under them by intendment or implication : — the adverse party contending, that they should be expounded with the utmost liberality, so as to completely effect the beneficial object contemplated. We, however, are not aware of any rules defined by the law for the interpretation of private statutes, other than, or different from those, which are useful to ascertain the meaning and intention of such as are public and general. Whether the act before us, requires the aid of construction, must depend on its meaning and intention being doubtful or obscure.

If circumstances might exist, under which every wprd of this act can have an effectual operation, then it is certain, that there is nothing doubtful or obscure in its terms, and the general assembly must be presumed to have contemplated the existence of such circumstances, before the act can take effect. No principle is more firmly established, or rests on more secure foundations, than the rule which declares, when a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature shall be intended to mean what they have plainly expressed, and consequently no room is left for construction — (U. States vs. Fisher, 2 Cranch, 358; Faw vs. Marsteller, 2 Cranch, 10; Paulina’s Cargo vs. U. States, 7 Cranch, 52.)

If Wilson, when he died was a citizen, possessed of inheritable estates; if the lessor of the plaintiff was the alien daughter of a citizen mother, and the latter be a sister of Wilson, born since eighteen hundred and two, and whom he had survived : and there being no remote heirs to him, on whom the law cast the desceut: then every word of this act would have effect. It would be for the benefit oí Elizabeth Morris; by it, she would be author-ised to-inherit, and have and hold, such of the estates of her deceased uncle, as she might have inherited by law, had she not been an alien : and the same would not then escheat to the State — (2 Kent’s Com. 45.) This is given as an illustration of one case only, but it is supposed others exist in which every word of this statute could have effect.

All the doubt thrown around this case, arises from the facts disclosed at the trial, and not from any uncertainty of the statute. The lessor of the plaintiff, unable to bring herself within the conditions required by the act, claims to have it construed to suit the circumstances shown, and give her the estate : this cannot be: resort is not permitted to extrinsic facts, to ascertain the meaning of a statute otherwise clear; for if so, the same words, under variant circumstances, might receive different constructions; and what would be law, when, applied to one individual, might cease to be so, when applied to another.

If it is admitted, that the statute is uncertain and ambiguous, the construction contended for. by the lessor of the plaintiff cannot be supported. The whole force of the argument rests on the assumption, that as the act is entitled for her benefit, it should receive such an exposition, as will advance her interest. In aid of this, it is insisted that the concluding words of the act can have no effect under the circumstances disclosed, unless the estate is given to her, as it will otherwise remain as a waif, to be seized by the first lord of the soil who chooses' to assert his dominion over the derelict domain. The terms used by the act, import an intention to confer a benefit, in one event only : if the lessor of the plaintiff would have been entitled to the land, if born a citizen, - or not an alien, then the State permits her to take it, notwithstanding her alienage: it is nothing more than a removal of the defect, or want of inheritable blood: and it does not qualify either Wilson or her immediate ancestor to transmit an inheritable estate: it does not constitute her an heir, or authorise her to have any estate which she could not have inherited, if born a citizen : it places her in the same situation, and none other, than she would be in, if a citizen. In this view of the case, as the right of the State was only inchoate, if Wilson died without heirs capable of inheriting his estate, and as it required an inquisition of office in such a case, to make it complete and perfect, the statute very properly says the same shall not escheat. If the construction contended for is given to the act, it causes the general assembly to enact, that lands, which for years have belonged to the State, shall not escheat, as they were vested in it abso* solutely and without'office found, (if the common law prevails,) on the death of Wilson, if he was then an alien.

Nothing, then, remains to support the pretensions of the lessor of the plaintiff, save the title of the act, and this has by no means the controlling influence which is claimed for it. In England, the title of a statute is not to be regarded in construing it, because it is no part of the statute— (Ld. Raymond, 77.) In this country, it has been held, when a statute is ambiguous, and its intention is to be ascertained by construction, its title claims a degree of notice, and should receive its due share of consideration — (U. States vs. Fisher et al. 2 Crunch. 358.) So, also, the title cannot control the words of an act, although it may furnish some aid in showing what was the mind of the legislature — (United States vs. Palmer, 3 Wheaton, 610.) The utmost, then, that the title of a statute can do, is to explain-what is doubtful, but it cannot control that which is contained in the body of the act.

A very similar question to the one here presented, was determined in the case of McCreery vs. Sommerville, 9 Wheat. 354.) The statute of 11 & 12 William III, ch. 6, is in force in Maryland. It provides that any natural horn subject may make his pedigree through an alien ancestor, as fully and effectually as if such alien ancestor was a natural born subject. Three nieces claimed an estate in Maryland, under this statute, as the heirs Of a deceased uncle, who in his life time was a citizen: their father, through whom they made pedigree, was living, and was an alien. The court held the nieces were not entitled to inherit: its judgment is founded on the ground, that the statute, by its terms, was intended solely to remove a disability, and not to invest the subject with the capacity to inherit, in cases not previously permitted by the law.

It is conceded, (which, indeed, could not be properly controverted,) that Wilson could transmit no estate by descent, even to a citizen.

Our conclusion, then, is, that the act recited did not cause a transmission of the title held by Wilson, at his death, to the land in controversy, to the lessor of the plaintiff; and the judgment of the Circuit court is reversed, and, if desired, the cause will be remanded.


text:
    DUNN vs. TILLOTSON.
    Where defendant, after appearance, waives making a defence, he is precluded from objecting afterwards to the regularity of the proceedings, previous to such waiver.

      2. Where a judgment is rendered for more than the amount claimed in the record-, the error may be corrected by motion to the court in which the judgment is rendered.
    Error to Wilcox Circuit court.
    Assumpsit on a promissory note.
    , The action was assumpsit, by the defendant in error, as endorsee of a promissory note, against the plaintiff in error, as maker.
    From an inspection of the record, it appears that the plaintiff below filed a declaration, to which the defendant pleaded “ non-assumpsit,” in short, by consent. At the Fall term, eighteen hundred'and thirty-seven-, of the court, the plaintiff submitted to a non-suit, which at the same term, was on motion, set aside. An amended declaration was afterwards filed, to which there was no plea; and at the May term, eighteen hundred and thirty-eight, this entry was made:

      “ This day came the parties, by their attorneys, and the defendant saying nothing in bar or preclusion of the plaintiff’s right of action, and thereby leaves himself against the plaintiff wholly undefended'; it is therefore considered by the court, that the plaintiff recover,” &c.
    The errors assigned are—
    1. That the defects in the declaration aforesaid were amended without leave of the court;

      2. That the court gave judgment, without making any disposition of the plea .of non-assumpsit;
    3. That the judgment is for a larger sum,- than the cause of action set forth in the record and proceedings, would warrant.
    Proctor, for plaintiff in error.
   ORMOND, J.

The answer to the ' two first assignments of error is, that it .appears from the record, that the plaintiff in error appeared, and waived making any defence to the action, and thereby precluded himself from objecting to the regularity of the previous proceeding, if indeed any such existed, which is not shown by the record.

Upon a calculation of the interest due on the note sued on, at the time of the rendition of the judgment, it appears that the judgment was1 rendered for fourteen cents too much. It appears to us, that this is a very proper case for the application of the. maxim, clo minimus non curat lex — the more especially, as the act of the legislature affords a cheap and summary remedy for the correction of errors of this description, by motion to the court in which the judgment was rendered.

Let the judgment of the court below be affirmed.


author: PER CURIAM.

text:
    HALL vs. CANNON.
    1. Where no judgment appears in the record, the writ of error will be dismissed.
    Error to Benton Circuit court.
   PER CURIAM.

There is no judgment rendered by the Circuit court, on the verdict of the jury sent up with' the transcript of the record; and the award of execution on this verdict, if the act of the court, and not a part of the finding of the jury, is not sufficient to give this court jurisdiction. If the party in whose favor this verdict was returned, wishes to proceed on it, he must have the judgment perfected, hy á motion to the Circuit court to render judgment on the verdict, núnc pro tunc.

If the judgment, however, was such as to give this court jurisdiction, we do not perceive any errors, for which it could be reversed.

Let the writ of error be dismissed.


text:
    PAGE vs. COLEMAN.
    1. Error will lie on a refusal to quash an execution.
    2. Entering into bond for the forthcoming of property levied on in execution, is not a waiver of previous irregularities.
    3. Where the sole entry of judgment is on the trial docket, and minutes of the court, in these words, “judgment by default,” —execution is improperly issued.
    4. An execution may be quashed after its return.
    Error to Mobile Circuit court.
    Motion to quash an execution, heard by Pickens, J,
    Page moved the Circuit court of Mobile county, to quash a writ of execution, which had been issued against him, on the ground, that there was no sufficient judgment to support it. To maintain this motion, he submitted two affidavits — one made by a deputy clerk of the Circuit court, the other by himself; the former stated, that the affiant had thoroughly examined the office of the [clerk of] the Circuit court, in relation to the case in which the execution issued, and he was unable to find any entry of judgment of record in the same, other than the following entry on the trial docket of November term, eighteen hundred and twenty-one, “ Judgment by default which is entered on the minutes [of the court] in these words, “Judgment by default.” The affiant also stated, that he did not believe there was any other entry of judgment of record in the said cause in the Circuit court. The latter stated that he had no recollection of any suit having been instituted against him, either in the Circuit court of Mobile county, or in any other court, wherein Coleman was plaintiff; that he did not believe any such writ was ever served on him; that he had no recollection of having ever seen or heard of any execution in such a case, before the execution lately levied on his property; that he was induced to execute a forthcoming bond for the property levied on, because he was advised, by so doing he would have time to release himself from the judgment, by having the execution quashed at the ensuing term of the Circuit court, which he was advised, would be the least troublesome manner to free himself from the execution; and that he had no intention-or idea whatever, in executing the forthcoming bond, of acknowledging the existence of any judgment against him, on which the execution could lawfully issue. The motion was overruled — Page excepting to the decision of the court, and the presiding judge signed a bill of exceptions, which discloses the facts before stated. The judgment entry is as follows:
    “Samuel Coleman vs. Jacob Page. — Motion to quash execution, because of there being no sufficient judgment; execution issued, 22d day of September, 1837; which motion being fully heard, it was considered by the court, that the same be overruled.”
    It does not appear that Coleman was notified that the motion would be made, or that he was before the court in person or by attorney, when its action was demanded. The refusal of the Circuit court to quash the execution, is now assigned as error.

      Dumif for the plaintiff in error.
   GOLDTHWAITE, J.

Before entering into an examination of the points presented in argument, it is necessary to dispose of the preliminary objection to the jurisdiction of the court. It is insisted for the defendant in error, that a refusal to entertain a motion of this description, is not such a final judgment as will sustain a writ of error.

This question has been several times presented before this court, and has uniformly received the same determination. In Creighton vs. Denby, (Minor, 250,) a judgment of the Circuit court, refusing to quash an execution, was reversed, and the execution quashed by this court. In Wilkinson vs. Goldth waite, (1 Stew. & Por. 159,) the general question, was very fully examined, and the court then decided, that a writ of error could be maintained on a refusal to enter a judgment, nunc pro tunc. In Baylor vs. McGregor & Darling, (1 Stew. & Por. 158,) a judgment of the Circuit court, refusing to credit an execution with a sum of money, was affirmed, by this court, and no question was made as to its jurisdiction. And in the case of Isaacs et al. vs. The Judge of the County court of Jefferson county, (5 Stew. & Por. 402,) a refusal to quash was reversed, and the execution quashed by this court. After these repeated adjudications, the practice cannot be permitted to be questioned.

The record does not disclose the reasons which induced the Circuit court to overrule this motion, and we cannot reverse its decision, unless it satisfactorily appears, that no cause could have existed to warrant the course pursued. The court was not bound to entertain the motion, if notice had never been given to the adverse party, or a sufficient reason for its omission shewn. In the case of Clemens vs. Judson et al. (Minor, 395,) it is said that notice is necessary, when a motion is made to enter judgment nunc pro tunc, hut that the notice need not appear of record. In the case of Baylor vs. McGregor & Darling, (1 Stew. & Por. 158,) the judgment of the Circuit court, refusing a motion to enter a credit on an execution, and to satisfy a judgment, was affirmed, because it did not appear that notice of the motion was given to. the adverse party. Without deciding that a notice is absolutely necessary to be given, in these or similar cases, it is clear from the authorities cited, that a court may, in the exercise of its discretion, refuse to entertain a motion, unless notice is given, or some sufficient reason shewn, for its omission. The entry of the overruling of this motion states, that it was fully heard, but this is in no wise inconsistent with the idea, that after such hearing, the court might have considered the case as one which ought not to be determined, without an opportunity afforded to the adverse party of being beard. If the conclusion could be arrived at, that the party was before the court, we would not be at liberty to hesitate in pronouncing there was error in refusing to quash the execution, as every question raised in this court against the authority to do so, has hitherto been decided, — except that which is supposed to arise from the forthcoming bond.

The entering into this, cannot be construed as a consent that the proceedings should be considered as regular, or as a waiver of the irregularity. If the suit was on the bond, the party might not be permitted to deny the validity of the judgment, because he would be estopped by his solemn deed, in which the existence of it is admitted ; but this very rule, would make it the more important for him to obtain the judgment of the court setting aside the execution, and consequently destroying the1 legal effect of the bond.

The only mode by which the irregularity of the execution could be brought to the notice of the court, was by affidavits, and if the sole entry of judgment is the one shewn, the execution was improperly issued, and should have been quashed — (Tombeckbee Bank vs. Strong’s ex’r 1 Stew. & Por. 187; Draughan vs. Tombeckbee Bank, 1 Stewart, 66; Isaacs et al. vs. Judge of the County court of Jefferson county, 5 Stew. & Por. 402.) The case last cited, is also a conclusive answer to the argument used at bar, that an execution cannot be quashed after its return, as well as the assertion, that the only mode of relief, is by supersedeas. The only reason on which the refusal of the Circuit court to entertain the motion can be sustained, is because the record does not disclose a notice to the adverse party, or a sufficient cause for its omission.

Let the judgment be affirmed,


text:
    HUMPHREYS vs. MORROW, adm’r.
    1, The insolvency of an estate, must be plead specially by the administrator, in contesting claims against the decedent.
    Error to Morgan Circuit court.
    Assumpsit, before Lane, J.
    The action in this case, was brought by a physician, for services rendered during the last sickness of defendant’s intestate. Defendant suggested the insolvency of the estate, and moved that the suit abate — which was granted.
    The order of the court below was assigned for error.

      Hopkins, for plaintiff in error.
   GOLDTHWAITE, J.

The questions presented by the assignments of error, draw into, examination the construction of a clause of the 12th section of the act of eighteen hundred and six, entitled “ an act concerning wills and testaments; the settlement of intestate’s estates; and the duty of executors, administrators and guardians” — (Aik. Dig. 152.) This clause is in the following words: “ Nor shall any suit or action be commenced or sustained against him, [the executor or administrator of an estate,] after the estate of the testator or intestate is represented insolvent: excepting, however, in all cases, actions for debts due for the deceased’s last sickness and funeral expenses.” It cannot be inferred from the terms used by the legislature, that this clause was intended to introduce any change in the rules of pleading, but only to enable the representative of the estate, when it was ascertained to be insolvent, to withdraw all cases from the jurisdiction of the Circuit and County courts, to the one provided by the act, that is, the Orphan’s court, where the estate could be distributed among all the creditors, and much of the expense of litigation avoided. It is clear, that any matter of defence, whether in abatement or bar, which arises after the institution of a suit, should be pleaded puis darrien continuance, in order that the opposite party may have the opportunity to ascertain the existence of the facts on which the defence is predicated, and if necessary, to deny and controvert them, or to avoid the defence, by the allegation of new matter. In the present case, we are informed by the bill of exceptions, that it was admitted that the cause of this action, was services rendered by the plaintiff during the last sickness of the intestate. This is one of the identical cases within the exception of the provision, and if shewn to the court in the form of a replication to a plea of the insolvency of the estate, would have avoided it, no opportunity was offered to do this, as there was nothing in the record to plead to. There is no doubt that the plaintiff has the right also to contest the existence of the fact, that the estate has been represented insolvent, and to ascertain the validity of the record of the Orphan’s court so declaring it, under the replication of mil tiel record. We consider the appropriate practice under this statute to be, to allege that the estate has been represented insolvent, by a proper plea; if the excepted cases exist, they can then be shewn by replication, and the ordinary issues, either of fact or law, can be presented, as in other cases. The case presented differs from the suggestion of the death of either party in the record, because thj one, in such an event, who is authorised^ consequently, the court must be informe sentation of some one unknown on the has intervened, which renders it improiter'to proceed the case before it. In such cases as the\ presentation is made by a party properly competent to litigate all questions which can arise. As no plea was interposed, the Circuit court erred in abating the case, on the motion of the defendant, and we need not consider the bill of exceptions further than we have already incidentally done.

Let the judgment be reversed, and the case remanded.


text:
    PRUIT vs. CLACK.

    1. A judgment by default, rendered on the fourth day of the term to which the writ is returnable, is illegally rendered.
    Error to Jackson County court.
    Debt on bond.
    Robinson, for plaintiff in error.

      Me Clung, contra.
   COLLIER, C. J.

In this case, a judgment by default was rendered on the fourth day of the term of the court, to which the writ was returnable. The judgment,could not have been legally rendered, until the expiration of three days after the time prescribed by the statute for the filing of a declaration, which makes the seventh day of the court the earliest time, when the judgment can be taken — (Rather vs. Owen, 1 Stewart’s R. 38.)

The judgment of the County court is reversed, and the case remanded.


author: OKMOND, J. — In

text:
    SWINK, adm’r, vs. NORWOOD.
    1. An entry on the record, that defendant appeared toa scire fa-cias, and knew of no cause why plaintiff should not recover, is equivalent to a confession of judgment.
    Error to Jackson County court.

      Scire facias, against an administrator.
    This was a scire facias, to subject the intestate of the plaintiff on a bail bond. The scire facias was admitted to be defective, but it was insisted that the record showed a confession of judgment. The entry on the record, which, it was supposed would have that effect, was as follows:
    “Henry Norwood vs.Philip Swink, adm’r, <fcc.
    “ Came the plaintiff, by his attorney, and the defendant came into open court, in his own proper person, and says he knows of no just cause why the plaintiff may not recover his;action against him as such administrator.”
    The court then, on motion of the plaintiff’s attorney, proceeded to render judgment against the plaintiff in error.

      Hopkins, for plaintiff in error.

      Robinson, contra,
   OKMOND, J. — In

the case of Clemens vs. Johnson, (3 Stewart & Porter, 269,) which was a proceeding by scire facias against bail, as in this case, — the record disclosed that the “ defendant withdrew his plea, and said nothing in bar or preclusion of the plaintiff’s action,” and the court held that this was equivalent to a confession of judgment.

We cannot perceive any substantial distinction between that case.and the present; if there be a difference, the case at bar is certainly stronger than that, as the plaintiff in error appeared in proper person, and admitted that he knew of no just cause why judgment should not be rendered against him. The implication, therefore, that he waived any defence he might have, and consented that judgment might be rendered against him, is much stronger in this case than in that. At all events, this case certainly comes within the principle of that decision, and the judgment must therefore be affirmed.


author: ORMOND, J. — There

text:
    CLEMENS vs. PATTON, DONEGAN & CO.
    1. Entries made in a merchant’s books, in the hand writing of a deceased clerk, may be proved by a witness acquainted with his writing.
    Error to Madisori Circuit court.
    Assumpsit on account, before Coleman, J.
    The defendants in this court, brought suit against the plaintiff, in assumpsit, and proved by their clerks, all the items of their account,- but a small amount; to prove which, they introduced evidence that one Edward Doe,another of their clerks, who was dead, that the items not proved by the’ other'clerks, were in his hand writing ; that Doe was the only witness by whom these-items could be proved ; that his habit was to charge articles as he delivered them, and that he was never known to make other than correct charges. This evidence was objected to, but permitted by the court to go to the jury.-

      Me Clung, fob plaintiff in error.
   ORMOND, J. — There

can be no! doubt that the evidence Was correctly admitted.

The rule is thus laid down by Mr. Starkie, 639, 1 voL “Entries made in the hand writing of an agent, usually employed in the delivery of goods, and made in the ordinary ■ ourse of business, of the1 delivery of particular goods to the defendant, are evidence of the fact, after his death, provided it be shown that such entries were contemporary with the supposed delivery.”

Lord Ellenborough, in the case of Doe vs. Robson, (15 East’s Rep. 32,) puts the. reception of evidence of this character on the ground of “ the total absence of interest in the person making the entry to pervert the fact, and at the same time, a competency in him to know it.”

The precise question determined in this case, was decided in the case of King vs. Maddux’s ex’rs, (7 Harris & Johnson, 407.)

Let the judgment be affirmed.


text:
    EARBEE et al. vs. WARE.
    1. Where defendant acknowledges service of a writ, and waives a particular entry required in the' case — the acknowledgment, if proved, is sufficient to give the court jurisdiction, and every thing consistent with the record, will be intended to sustain the judgment.
    Error to Sumter Circuit court.
    Assumpsit, before Chapman, J.
    On the ninth day of March, .eighteen hundred and thirty-eight, the defendant in error caused to be issued, by the clérk of the Circuit court of Sumter, a writ of ca-pias ad respondendum against the plaintiffs, in usual form. The plaintiffs, Rain & Johnston, are described as “late partners in trade,” &c. The writ does not appear to have been placed in the sheriff’s hands, but on it is endorsed an acknowledgment, as follows:
    “We acknowledge service of the within writ, and waive its being entered on the appearance docket. 9th March, 1838. wm. earbee,
    RAIN & JOHNSTON.”
    In the record, there is a declarationon the cause of action, endorsed on the writ, which is entitled of the term to which the writ was returnable.
    An entry of judgment was made of record, at the first trial term, beginning as follows: “ Came the plaintiff, by attorney, and proved to the court the service of process herein; and the defendants being solemnly called to come Into court and defend this suit, as they were this day bound to do, came not, but made default. It is therefore considered,” &c.
    From this judgment, the plaintiffs have prosecuted their writ of error to this court, and insist that the same is erroneous—
    1. Because the writ was not retuned to the term of the court, to which, on its face, it was properly returnable;

      2. Because the court, at the term when its judgment was rendered, had no jurisdiction of the case — the same having been discontinued by operation of law;
    3. Because the service of process does not appear from the record to have been proved. -

      Porter, for plaintiff in errror,
   COLLIER, C. J.

• 1st. In respect to the first point, it no where appears from the record, that the writ was not in court both before and during the term first after its issuance. It may have been there, and actually entered upon the appearance docket: such a supposition is only negatived, by the waiver made by the plaintiffs in error, in their acknowledgment of service; and if such an inference were necessary to sustain the judgment of the Circuit court, according to the rule, which makes every intendment consistent with the record, in favor of the regularity of the proceedings of courts of justice, it would be our duty to make it; but we need not intend the writ to have been regularly docketed. True, it is made the duty of the clerks of the Circuit and County courts, to “ enter all canses on the appearance docket, according to. the order in which the writs were received by the sheriff” — (1. Rule of Practice in Circuit and County courts, 1 Stew. R. 615,) — yet the observance of this rule is not considered as indispensable to entitle a case to a place in court, or to invest the-court with jurisdiction. If a clerk shall omit this duty, will his neglect' operate a discontinuance of the suit ? Be this as it may, surely it is competent for a defendant to waive, in advance, the advantage of every defence which the omission may furnish him. The plaintiffs have done this, and cannot now be allowed to call in question the- legality of their act.

2d. At a very early day, the question was directly raised, whether a writ was not necessary to give to the. Circuit court jurisdiction of a cause. There, there, was a confession of a judgment, without either writ or declaration, and the court say, The chief end of the writ and declaration, is to bring the defendant' before the court, and give him. notice of the cause and nature of the action, that he may have an opportunity to defend,.. If he. waives- his right, he acknowledges -himself duly before the court, and consents that judgment may be rendered against him for a certain amount; he cannot afterwards be permitted to complain of irregularities” — (Caller vs. Denson, Ala. Rep. 18.)

In Welch, ad'm’r, vs. Walker and wife, (4 Porter’s Rep, 120,) this court strongly intimate,, (and in truth such was, its opinion,) that it was. not necessary, in order to bring a defendant into court, that the writ should have been placed in the sheriff’s hands, and executed by him. but that proof of the acknowledgment of service by the party against whom it issued, would be available. Our views «pon the first point show, that in the present case, the suit was not discontinued by operation of law; and our conclusion upon the second point is, that in order to give to the court jurisdiction, it was not necessary that the writ should have been executed by the sheriff, or that he should at any time have been charged with it. This brings us to consider the last question.

■3d. It has been repeatedly decided by this, and all other appellate courts, that every fair presumption should be made in favor of the proceedings of courts, having a general jurisdiction over the subject matter adjudged. This rule applies as well to the case before us, as'if the service of process had been effected by the sheriff, or other executive officer of the law. The acknowledgment of service being legal, must be quite as effectual for all purposes. as if made in the usual manner. With this rule in view, let us for a moment examine the proof of service afforded by the record. It is stated, that the plaintiff came by his attorney, “ and proved to the court the service of process herein.” How did he prove it? As to the manner and quantum of proof, the record is entirely silent; yet, as it was the duty of the Circuit court to have required such proof as was legal, and so much as was necessary, we must suppose that the duty enjoined upon that court was performed according to law. But it is objected, that the acknowledgment of service, in the name of Rain & Johnston, was irregular; that the co-partnership, of which they had been members, being previously dissolved, one of them could not accept the service of process in their joint names. The legal con-elusion of this argument is clearly correct, but it is not sustained by the facts. It does not appear but the act had the concurrence both of Rain & Johnston, or that it was not adopted by them. Now, as the Circuit court, on this point, should have required the necessary legal proof, we must suppose that the requisition was made.

This view being decisive of the case, it results, that the judgment of the Circuit court is free from error, and must be affirmed.


text:
    EARBEE vs. EVANS & CARMAN.
    1. Plaintiff may discontinue as to partners, on whom a writ issued against a firm, was not served.
    Error to Sumter Circuit court.-
    Assumpsit, before Chapman, J. Verdict and judgment for plaintiffs below.

      Porter, for plaintiff in error.
   COLLIER, C. J.

All the questions arising in this case, have been determined against the plaintiff in error, by the opinion pronounced at this term, in Earbee vs. Ware, except the assignment, which denies the right of a plaintiff who sues out process against all the members of a co-partnership, to discontinue as to those on whom service is not effected.

By the 8th section of the act of eighteen hundred- and-eighteen, “ for the better regulation of judicial proceedings,” (Aik. Dig. 268,) it is provided, that whenever any cause of action may exist against two or more partners, it shall be lawful to prosecute an action against any one or more of them, and that when a writ shall issue against all the partners of any firm, service of the same on any one of them shall be deemed equivalent to service on all. We think that an equitable construction of this section would authorise a discontinuance as to the partners, on whom a writ issued against the firm, was not served.

But it is objected, that the act is in derogation of the common law, and should be strictly construed. If it trenched upon rights protected by the common law, the argument would be well founded, but such is not the case — the statute is merely remedial, in simplifying and cheapening the mode of redress in the cases embraced by it; and according to all authority, must be liberally expounded, in advancement of the remedy. That such is the rule of interpretation favored by this court, we think will sufficiently appear from its decisions — (Martin vs. Townsend, 2 Stewart’s R. 329; Jones et al. vs. Pitcher & Co. 3 Stew. & Por. R. 135.)

Our conclusion is, that the judgment of the Circuit court is free from error, and it is therefore affirmed.