author: •COLLIER, C. J.

text:
    LOWRY vs. STOWE.
    1. An objection, that the affidavit on which an attachment issues, has not been verified, and subscribed; or that the justice, before whom the same purports to have been made, was not such, in fact, — must be presented by plea in abatement. .
    2. A defective bond in attachment, may be amended by the substitution of a new and perfect bond, and if plaintiff, when required by the court to amend, decline doing so, the attachment may be quashed.
    3. The form of a writ of attachment, prescribed by the statute, does not recognise the seal of the justice issuing the same, and the seal placed immediately after the signature of the justice, is a sufficient compliance with the law.
    4. The act of eighteen hundred and seven, (Aik. Dig. 278,) which provides, that the cause of action shall be endorsed on the writ, applies only to initiatory process, in a cause issued from courts, in which clerks are necessary officers, and does not extend to attachments issued by a judicial officer.
    Error to the County court of Tuskaloosa.
    This was the case of an attachment, for a sum above fifty dollars, commenced before a justice of the peace, and returned into the County court.
    A motion was submitted to quash the attachment, upon various grounds, which appear in the opinion of the court; and it was sustained on the ground,'of a want of a sufficient affidavit. The position relied on for quashing the affidavit, was, that the justice who issued the attachment, had not signed his name at the bottom of the paper.

      The court was informed, (all which appeared by a ' bill of exceptions,) it being evening, that plaintiff regarded this objection as immaterial', but if the court thought otherwise, plaintiff wished to have the advantage of a motion to amend. The court took an advisare, till morning, and then quashed for want of affidavit.
    The plaintiff offered proof to show—
    1. That Robert T. Clyde’s name was in the body of •the affidavit, and it was filled up by himself.
    2. That Robert T. Clyde was a justice of the peace, and that plaintiff had sworn to the attachment before him.
    All which the court refused to admit, and exceptions were taken.
    ' It was assigned for error—
    1. The court erred in quashing the attachment, for the reason stated in the bill of exceptions;

      2. The court erred in quashing the attachment generally ;
    3. The court erred in refusing to admit the testimony, .as shown in the bill of exceptions;
    4. The court erred in overruling the motion to amend.
    Porter, for the plaintiff in error.

      ■Crabb, contra.
   •COLLIER, C. J.

— The County court of Tuskaloosa was moved to quash the attachment, which had been issued in this case, at the suit of the plaintiff in error, against the defendant:—

1. Because there was no affidavit, or if any, a defective one.

2. Because there is no bond, or if any, no sufficient bond.

3. Because the attachment being for more than fifty dollars, is not returnable, either to the County or Circuit court.

4. Because the attachment is not under the' hand and seal of the justice of the peace issuing the same.

5. Because the cause of action is not endorsed on the attachment.

The motion was sustained by the court on the first reason assigned, and this, though the plaintiff offered to prove that the justice of the peace issuing the attachment inserted, with his own hand, his name in the body of the affidavit.

The objection to the affidavit is, that the justice does not attest the signature and verification by the plaintiff, in the usual form, of — i‘ Sworn to and' subscribed before me,-, justice of the peace,” &c. In other respects, it is unexceptionable, and conforms to the directions of the statute.

Upon the motion to quash, every thing disclosed by the proceedings should be taken as true. We must, then, suppose that Robert T. Clyde was a justice of the “peace for Tutkaloosa county—that the plaintiff verified, by oath, the facts set out in the affidavit, and subscribed it with his name—All this appearing from the affidavit, the first reason furnished no ground for which to quash. If it had been true, that the individual representing himself as a justice of the peace, was not such in fact; or that the affidavit had not been verified and subscribed, the objection should have been taken by plea in abatement, and not otherwise, in attaining tills conclusion, we do not desire to be underMood as determining, that an attachment issued upon a ¿efectiva bond or ailidavit, can only be quashed on plea, as in cases where no bond or affidavit has been taken, and returned—(Aik. Dig. sec. 3, p. 38.) The question docs not necessarily arise, and we therefore leave it open.

The bond is dated on the fourth day of January, eighteen hundred and thirty-six, and recites the attachment as returnable “ to the County court, to be held at the court house, on the third Monday in January, instant” — while the attachment appears to have been issued on the fourth clay of January, eighteen hundred and thirty-eight. The bond is defective in describing the attachment as being returnable almost two years before its issuance. Yet it is conceived that this discrepancy will not sustain the judgment of the Comity court; but the defect might have been amended by the substitution of a new and perfect bond : if the plaintiff had declined, upon the requisition of that court, thus to amend, it would then have been time enough, to quash his attachment. — (See i\ik. Dig. see. 17, n. 42.)

Neither the third, fourth, or fifth reasons for the motion, were well taken. It sufficiently appears from the attachment, that it was retirnable to the County court of Ttiskaloona. The form of the writ prescribed ley the statute, does not recognise the seal of the justice. The test is as follows: “Witness,- -, a justice of the peace in and for the comity aforesaid, at -, the-day of in the year,” c/e. The seal, then, immediately after the signature of the justice, is a sufficient compliance with the law.

In Johnson vs. Perry, (4 Stew & Por. 45,) it was decided, that the want of an endorsement of tile cause of action on the writ, issued b j the clerk of a Comity or Circuit court, returnable to their respective courts, was properly pleadable in abatement. The provision of the act on which that decision is founded, is os follows: “And it shall be the duty of the elerl: or plaintiff’s attorney, to endorse on the bach of the writ, the cause of the action, the nature of the specialty, or the grounds on which the action is founded,” dye. The title of the act is “An act establishing Superior courts, and declaring the powers of the territorial judges” — and was prsscd in eighteen hundred and seven — (Aik. Dig. see. 112, p. 278.) The laws enacted professedly for the regulation of attachments, though very explicit In pointing out their form, and the grounds which entitle a party to that proceeding, are entirely silent as to the necessity of accompanying the process with a more particular statement of the cause of action, than tile writ itself contains. It sufficiently appears, both from the title and terms of the act of eighteen hundred and seven, that it applies to the initiatory process in a cause issuing from courts in which clerks are necessary officers; and cannot therefore extend to attachments issued by a judicial officer.

For the decision of the County court, touching the sufficiency of the affulav'd, its judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: GOLDTHWA1TE, J.

license: Public Domain

text:
    HOLLOWAY VS. LOWE.
    1. Champerty, is the unlawful maintenance of a suit, in consideration of some bargain, to have a part of the thing in dispute, or some profit out of it; and co\ ers all transactions and contracts, whether by counsel or others, to have the whole or part of the thing or "damages recovered. Therefore,
    2. Where^a plaintiff in an action of slander, by a written agreement, promised to pay his attorney, a trifling sum, and the one fourth part of the verdict, that might be recovered, for his services in prosecuting the suit, and where a verdict was recovered in favor of the plaintiff: — it was held, that the attorney could not recover in assumpsit, on the written agreement.,
    3. Whether counsel may be permitted to recover, for services actually rendered, in a suit prosecuted by him under an illegal contract— Quero.

    Error to the Circuit court of St. Clair county.
    The defendant in error, brought his action of assump-sit against the plaintiff, founded on a writing, in the words and figures following:
    “ William Holloway, sen’r,
    vs.
    “Joel Chandler.
    “In this case of slander, I agree to pay P. P. Lowe, fifteen dollars, for commencing and prosecuting the suit, together with one fourth of the damages ; — but if the said Lowe is non-suited in the action, for any informality in the pleadings, he is not to have any thing — This 26th February, 1834.
    (Signed,) “ Wa. Holloway.”

      The declaration, after setting out the agreement, proceeded as follows: “ and the said plaintiff avers, that on the trial of the said action against the said Joel Chandler,. at the-term of the Circuit court, for said St. Clair' county, the said Holloway, did recover a verdict and judgment for the sum of three thousand dollars, which, said judgment has been paid in full to the said defendant,, by means whereof,” &c.
    There was a second count, not varying materially from, the first. To the declaration, defendant demurred.
    The demurrer was argued, and judgment rendered for the defendant below on the demurrer, and subsequentlyr a motion was entered on the docket, in the words following :
    “ Motion to the court, to revise its opinion in sustaining' demurrer to plaintiff’s declaration.” The record shews,, that the motion was granted: the case reinstated, with, leave to defendant below to plead over.
    The general issue was filed, and a trial and verdict for the plaintiff below, for the amount claimed in the declaration.
    The plaintiff in error, assigned—
    1. That there was error in setting aside the judgment, on the demurrer to the declaration ;
    2. In overruling the demurrer to the declaration;
    3. The judgment was not sustained by the verdict;
    4. The court erred in rendering judgment for thes plaintiff below on the verdict.

      Peck, for the plaintiff in error.

      Martin, contra.
   GOLDTHWA1TE, J.

— The agreement in writing, of the plaintiff in error, which is disclosed as the foundation of this action, is impeached, as illegal; and it is clearly so, if champerty is an offence known to the laws of this State. As we have no statute defining this of-fence, we must recur to the common law, to ascertain what it is, and to what cases it extends.

It is defined by Hawkins, as the unlawful maintainance of a suit, in consideration of some bargain, to have a part of the thing in dispute, or some profit out of it—(Hawkins’ Pleas of the Crown, 463)—And has been held to cover all transactions and contracts, whether by counsel or others, to have the whole or a part of the thing or damages recovered—(Hawkins’ P. C. 462; Rust vs. Larue, 4 Litt. 413.)

It has been doubted by some, if an agreement made by counsel, when no suit is pending, to have a portion of the thing or damages recovered, is within the rule; but this opinion has no foundation in any adjudicated case, so far as we have been able to ascertain; and the contrary has frequently been decided—(Rust vs. Larue, 4 Litt. 413; Arden vs. Patterson, 5 Johns. Chan. R. 51; Key vs. Vattier, 1 Ohio R. 132; Caldwell vs. Monroe, 6 Monroe, 392; Thurston vs. Percival, 1 Peck, 415.) In England, contracts of this description are expressly prohibited by the statute of Westminster, (1 chap. 25, Hawkins, 464) —and this and similar statutes have been declared to be cumulative, and merely in affirmance of the common law—Wallis vs. Duke of Portland, (3 Vesey, 493.) In this case, it was held that maintainance, of which cham-perty is one species, is not only malum, prohibitum,, but malum in se. So, also, in Kentucky, the statutory enactment only extends to the prohibition of contracts for the purchase or sale of pretended titles to land; yet it •was held in the case of Rust vs. Larue, before cited, that a contract to recover a part of the slaves recovered by suit, as compensation to counsel for conducting the same, was within the mischief restrained by the common law; and that a Court of Equity ought to lend no aid to the enforcement of such a contract.

The reason of the rule of the common law is, that every suit or action should stand on its own merits, and that those who have no interest in the matter or thing in dispute, shall never be permitted to become interested; as thereby lawsuits would be greatly multiplied, and much injustice frequently wrought, by interposing other than the real parties, who, from their influence in society or any other' cause, may be able to produce a result which could not be effected by the real parties. Although this reason may be less forcible now than in former times, it is impossible to say that it is destitute of weight. Times are not so entirely changed, that the aid and active personal interference and interest of one possessing influence, may not produce a very different result, in many suits, from that which the parties to it could do.

It may >be said that it is manifestly unjust, when counsel have aided in conducting a suit to a successful termination, that they shall be deprived of a just compensation for their services, because of a stipulation for a contingent fee, which is prohibited by law. This point, though expressly decided in the case of Rust vs. Larue, is one which does not necessarily arise in this case, and we decline to express any opinion, how far counsel will be permitted to recover for their services actually rendered, in a suit commenced by them under an illegal contract.

The judgment is reversed — and as it is the practice of this court not to render a final judgment on demurrer, in ■cases of reversal, and as the party has the right to amend his declaration in the court below, so as to present this case in another aspect — the cause is remanded.


author: COLLIER, C. J.

text:
    SMITH, et al. VS. THE STATE.
    1. Where a judgment on a forfeited recognizance, describes the recognizance, so that the particular sum for which each re-cognizor is bound, and the nature of his undertaking, is shown: and the judgment charges each to the extent oí his liability, and no further — there is no error.

      2. For the successful prosecution of a proceeding by scire facias, on a forfeited recognizance, an attorney may claim a fee of six dollars, to be taxed in the bill of costs.
    Error to the Circuit court of Marshall county.

      Scire facias on recognizance estreated. In this case, judgment nisi was rendered on a recognizance, against a principal recognizor, and his sureties; and on scire fa-cias, judgment final, was at a subsequent term of the court rendered against the same parties; and ^./«.issued against each of the defendants; in which the costs were taxed.

      To reverse the judgment, a writ of error was taken, and the following assigned:
    1. The court below erred in rendering judgment for a tax fee;
    2. In giving judgment against the defendants jointly ;
    3. In giving judgment against the defendants, without shewing the grounds thereof.

      Me Clung, for the plaintiffs in error.

      Attorney General, contra.
   COLLIER, C. J.

— The questions made by the assignment of errors, are—

1. Is it allowable to embrace the principal recognizor and his sureties in a judgment nisi, upon the failure of the former to appear at court, in obedience to the condition of his recognizance ?

2. Is a solicitor, or other attorney, prosecuting- a scire facias, on such judgment nisi, to final judgment, entitled to have a fee taxed in the bill of costs ?

1. No objection has been pointed out to the rendition of a judgment, against the principal and his sureties in the same entry. If the entry itself describe the recognizance, so that the particular sum for which each recog-nizor is bound, and the nature of his undertaking be shown; and the judgment charge each to the extent of his liability, and no farther, we cannot conceive that it would be erroneous. But if such objection ever was available, it was entirely removed by the act of eighteen hundred and thirty-three. “An act to simplify scire fa-cias in criminal cases, and for other purposes” — (Aik. Dig. sec. 41, p. 121.)

2. The act of eighteen hundred and nineteen, which prescribes the fees to which solicitors shall be entitled, on every conviction on indictment or presentment, does not embrace the case at bar — (Aik. Dig. sec. 3, p. 46.) Yet the statute of eighteen hundred and twelve, in regard to fees in general, (Aik. Dig. 189,) directs that an attorney and counsellor at law shall be entitled to a fee of six dollars, for prosecuting or defending a suit in the Superior court.

A proceeding by scire facias, upon a forfeited recognizance, is clearly a suit, and for its successful prosecution, the attorney may, with propriety, claim, instead of five, a fee of six dollars, to be taxed in the bill of costs.

The judgment must be affirmed.


text:
    THE STATE VS. STEDMAN.
    1. The same strictness is not required in this country, and at this day, in indictments at common law, as in those founded on statutes; and where the words of a statute axe descriptive of the nature of the offence — it is necessary to specify the of-fence in the particular words of such statute.
    2. But where a statute does not employ any terms, descriptive of the offence; but merely declares the punishment of an of-fence — know n to the common law, — there, the mode of framing the indictment, will be judged of with regard to the common law rule.
    3. In the ease of an indictment at common law, every fact and circumstance, not a necessary ingredient, may be rejected as surplusage; and need not be proved at the trial.
    4. A defendant indicted for an assault and battery, with intent to commit murder, may be convicted of a simple assault and battery, though there be no count in the indictment to that effect. Greater offences embrace the lesser of a kindred character.
    5. The objection to a venire, that it contains the initials only of the Christian names of several of the grand jurors, is no cause for arresting the judgment.
    6. It is no valid objection to a writ of venire facias, that the day on which it issued was not endorsed on it, if it appear, that it was issued and received more than thirty days before the sitting of the court.
    7. It is no valid objection to a venire facias, that it was directed “ To the sheriff of'- Talladega county,” — the operation of the act of December, eighteen hundred and thirty-six, requiring all process to be directed “ To any sheriff of the State of Alabama,” is limited to process issued in the course of a suit or action, and does not extend to the writ, under which the sheriff summons a grand or-petit jury for the term of a court.

      8. It is no valid objection to a bill of indictment, that it was endorsed by Alexander R. Hutchinson, instead of Hutcheson, as foreman of the grand jury, though it appear by the record, that Alexander R. Hutcheson was appointed foreman by the court. If necessary, the court will intend the two names to indicate the same person.
    In error to the Circuit court of Talladega county.
    Indictment for an assault and battery, with intent to commit murder, tried before Judge A. Martin. Plea, not guilty. Yerdict, guilty.
    In the court below, the defendant moved to arrest the judgment,, and also for a new trial, both, of which motions were overruled.
    On the trial, several questions arose, which the presiding judge, considering to he novel and difficult, — referred to this court for its decision and judgment, as directed by the statute.
    The points certified for adjudication, were the following—
    1. That the venire facias was directed to the sheriff of Talladega county, -and not directed to any sheriff in the State of Alabama.

      2. That the time at which the venire facias was issued, was not marked thereon by the clerk, or any other person.
    3. That the venire facias did not shew the Christian names of many of the persons summoned as grand jurors: and did not shew that Alexander R. Hutchinson, who returned the bill of indictment into court as foreman of the grand jury, was summoned or included in said venire facias.

    4. That the indictment did not aver a time and place, to all the material allegations, nor did it describe the instrument, by which the injury was done, with sufficient certainty. That it was inconsistent and repugnant in the description of said instrument; and that the said hill of indictment charged a felony.
    The evidence was, that defendant and the prosecutor had an altercation, in which defendant presented a pistol, when plaintiff retreated ten or fifteen feet, and stooped to pick up a stone, and in that situation received the contents of the pistol in his back.
    The court charged, that if defendant made the assault upon the prosecutor with a pistol, and had killed him while stooping to pick up a stone, it would have been murder: — -and also, that as there was but one count in the indictment, which was for an assault and battery with intent to murder, the jury could not find defendant guilty of a common assault and battery. Before the verdict was received, the court proposed to correct its charge in the last particular, if desired — which was declined by defendant.
    The defendant as,signed for error—
    1. The matters of law arising upon the alleged insufficiency of the indictment.
    2. The charge given by the court, as contained in the bill of exceptions.
    3. The decision of the court overruling the motion in arrest of judgment.
    Martin, for the plaintiff in error.

      Attorney General, contra.
   COLLIER, C. J.

— 1. The indictment, in this case, is founded upon a statute which enacts that “ every person who shall assault another with intent to commit murder, rape or robbery, shall, on conviction thereof, be amerced.” The assault, as well as the battery, is charged to have been feloniously, wilfully, and of malice aforethought, made and done, with intent feloniously, wilfully, and of malice aforethought, to kill and murder.

It is objected to the indictment, that it charges the defendant with the commission of a felony; whereas the offence of an assault with intent to murder, is at most, a mere misdemeanor. The indictment is certainly not drawn with any remarkable regard to legal precision. It should have charged the defendant, with having unlawfully made the assault and done the beating, and then described the intent as follows: “him, the said Claiborne Hill, then and there, feloniously, wilfully, and of his malice aforethought, to kill and murder,” &c.—(Arch. Cr. Pl. 357.)

Where the words of a statute are descriptive of the nature of the offence, there, it is necessary to specify it in the particular words of such statute—(Rex vs. Pemberton, 2 Burr. 1037; Commonwealth vs. Boyer, 2 Mass. R. 128; Commonwealth vs. Morse, Ibid, 520; see also 8 Ibid, 536; 1 Binney’s R. 201; and the King vs. Jukes, 2 East’s R. 30.) In the case before us, the statute does not employ any terms descriptive of the offence — it merely declares what shall be the punishment of an offence known to the common law; and in order to frame an indictment understandingly, we must have a regard to that branch of jurisprudence in connection with the statute.

The same strictness is not required in this country, and at this day, in indictments at common law, as in those founded on statutes. Thus, in an indictment for an offence wholly at common law, every fact and circumstance which is not a necessary ingredient, may be rejected as surplusage, and need not be proved at the trial —(The King vs. Jones, 2 B. & Ald. 611) — and if such matter be defectively stated, the accused can .derive no advantage from it—(The King vs. Holt, 2 Leach, 593; The King vs. Howarth, 3 Stark. R. 26)—Nor will the statement of circumstances of gross aggravation, which are entirely useless, and even contrary to the truth, vitiate an indictment in other respects good—(Arch. Cr. Pl. 42.)

If it were conceded, as argued by the defendant’s counsel, that to charge an offence to have been feloniously committed, is equivalent to charging the accused with having been guilty of a felony, though the particular act or acts constituted in themselves a trivial misdemeanor, we are not sure that the defendant would derive benefit from the concession. The term felony, is one, if of any, at least of very unsubstantial meaning — it neither increases nor diminishes the quantum of punishment, and no particular consequences follow from thus designating an offence, however serious they may have been, and even now are in that country whence our legal notions are drawn. We then conclude, that the terms “feloni-ously, wilfully, and of his malice aforethought,” in charging the act done, are .mere expletives, and may well be rejected as surplusage; while they are peculiarly proper in characterizing the intent with which the act was done.

2. Ill regard to the second question, we think it clear, that the judge correctly instructed the jury, that if the defendant madej the first assault upon the prosecutor with a pistol, and the prosecutor retreated, and stooped to pick up a stone to defend himself, which was large enough to have occasioned the defendant’s death, and while thus stooping he was shot by the defendant, — had death ensued, the defendant would have been guilty of murder. The judge certainly mistook the law, when he informed the jury, that as the defendant was only indicted for an assault and battery, with intent to commit 'murder, he could not be guilty of a simple assault and battery. There can be no doubt but the greater offence embraces the lesser, of a kindred character. We cannot well conceive how, in point of law, the defendant could be prejudiced by such a charge. If not guilty of the greater offence, the jury should have acquitted, though had the law been correctly laid down by the bench, they might have been inclined to find him guilty of an assault and battery. Waiving, however, the consideration of this point, we think that the judge repaired his error, by the proposition to modify his instructions to the jury, after their return to the bar, and before they had delivered their verdict.

3. The objection to the venire, that it contains the initial only of the Christian name of several of the grand jurors, furnishes no cause for arresting the judgment.— It is certainly proper that the names of the jurors should be inserted at length, in as much as it would diminish the risk of summoning an improper person. Yet we are aware that it is not always practicable for the clerk to observe this precaution; as it sometimes happens that names imperfectly written, are placed in the box, from which the persons mentioned in the venire are drawn. To require the clerk, in such cases, to write the name at length, would be imposing upon him a duty not always easy to be performed, and which might be abused ; as it not unfrequently happens, that different persons are found in the same county, with the same surname, and the same initial, to designate their Christian name. But in no event can the defendant be prejudiced: if there is a mistake, and one who was not drawn, summoned on the venire, the defendant may plead in abatement.

Even admitting that the venire facias is such process as is embraced by the act of eighteen hundred and nineteen, which directs that The cleffc or attorney, issuing process, shall mark thereon the day on which such process issued”—(Aik. Dig. sec. 114, p. 278,) and then the want of the indorsement would not be fatal to the writ. It is clear that that law is merely directory. The teste of the writ, and the acknowledgment of its receipt by the sheriff, both show, that it was issued and received more than thirty days before the sitting of the court, to which it was returnable.

It can avail the defendant nothing, that the bill of indictment was endorsed by Alexander R. Hutchinson, instead of Hutcheson, as foreman of the grand jury ; though it appears by the record that Alexander R. Hutcheson was appointed foreman by the court. If necessary, we would intend the two names to indicate the same individual : the more especially as the record discovers that the grand jury themselves returned the bill, “ a true bill."

It is further objeete .. that ti e venire facias is defective, in being directed “ To the sheriff of Talladega county in as much as the act of December, eighteen hundred and thirty-six, (acts of 1836, p. 25,) requires, “ that hereafter, all original mesne and Anal process, issued from the cleric’s office cf any court in this state, shall be directed to any sheriff of the State of Alabama.’ ” This statute, in employing the terms original, mesne, and final, clearly limits its operation to process in the course of any suit or action, and does not extend to the writ under which the sheriff summons a grand or 'petit jury for ■ the term of a court.

In the points referred to this court, there is no erorr thus far: the judgment of the Circuit court is consequently affirmed, and a certificate (directed to issue accordingly;


author: GOLDTH WAITE, J. COLLIER, C. J.

text:
    DEW, et al. VS. GARNER.
    1. At common law, a plaintiff in an action on a promissory note, was bound to prove the signature of defendant;. but our statute of eighteen hundred and eleven, (Aik. Dig. 2S3,) renders it unnecessary, unless the defendant shall deny the execution of the note, by plea, supported by affidavit.

      2. Where the signature to a promissory note is illegible, and where no description of the signature is attempted in the declaration, (and where defendant does not interpose the statutory plea,) — there is no such variance between the note and declaration as can operate to defeat the action. Such a case does not differ from one where the signature is evidenced by a mark.
    S. It seems, however, that an actual variance in the description of a name, notwithstanding the statute of eighteen hundred and eleven, — will still be fatal.
    [Where the signature to a note is not illegible, and is not that of defendant, and the declaration, without recitals'or averments, mis-describes the note; — it cannot authorise a recovery against the defendant.] — Collier, C. J. dissentiente.

    Error to the County court of Greene county.
    Assumpsit on a promissory note. Plea, non assump-sit. Verdict and judgment for plaintiff.
    On the trial of the cause, plaintiff offered in evidence a promissory note, given by three makers ; to which defendants objected, on the ground, that the name of Duncan Dew, one of the defendants, was not signed or subscribed to it. It did not appear that the note was ever signed by said Dew, otherwise than from its face. It was therefore alleged, that the note offered in evidence, varied from the note described in the declaration but the court overruled the objection, and decided, that the note offered in evidence was sufficiently described in the declaration, and permitted the note to be read in evidence to the jury. No other evidence was offered by plaintiff; and to the opinion of the court, defendant excepted.
    Plaintiffs in error, assigned the decision of the court below, as erroneous.
    Erwin, for the plaintiffs in error.
    Jones, contra.
   GOLDTH WAITE, J.

— The error which is supposed to exist in this case, arose on the trial, from the refusal of the Court to exclude the note offered in evidence to support the action, because of an alleged variance from that declared on. This note is attached to^the bill of exceptions, and is admitted to correspond with the one described in the declaration, in every particular, except the signature of Duncan Dew, which if really intended for his name, is so badly written as to have little or no resemblance to it. In fact, the most anxious examination has not enabled us to determine what name is designated by the characters which compose this signature, and it may be considered as illegible.

Whether it varies from the note described, must be determined by ascertaining what is the legal effect of the averments contained in the declaration. The allegation is, that the defendants made a certain promissory note : no description is attempted of the signature, by any words of reference, such as, that the said Duncan Dew, “ by the name and. description of,” &c. made his promissory note, or that he made his note by affixing' a character or mark which is illegible. If such a description of the manner of signature had been pursued in the declaration, many of the older authoüties concur to shew, that it would be matter of description, and a variance in such a case might be fatal; although the modern decisions hold, in general, the reverse of this rule.-(Pease vs, Morgan, 7 Johns. 468, and cases there cited, contra.)

It is laid down by Chitty, (in his Treatise on Bills, 586,) that such a specific description is never necessary, and should be omitted, although the allegation, if untrue, will now be rejected.

At common law, the plaintiff was bound to prove that the defendant, or some one acting by his authority, actually signed the note sued on ; and if no allegation of particular description was made, any evidence shewing that he actually made the note, would be admissible; whether the .signature was badly written, illegible, or merely signed with the initial of his Christian name. Thus, in the present case, if now governed by, the same rules of evidence which obtained at common law, it would have been necessary to prove that this name or signature was made by Dew, or by his authority, with the intention to bind him, as his signature; and such proof being made, it would be wholly immaterial, whether it could be read by any other person.

Our statute of eighteen hundred and eleven, (Aik. Dig. 283,) changed the rule of the common law, and renders it unnecessary for a plaintiff, in any suit founded on any instrument in writing, to prove the same, unless the defendant shall deny its execution, by plea, supported by affidavit. This statute renders all proof, in relation to signature, unnecessary, and its beneficial effects would be greatly counteracted, if an ignorance of the art of writing, or any fanciful mode of making a signature, can authorise a defendant to call for proof of the execution of the instrument, without the denial required by the statute.

It is not perceived that this case differs essentially from that of one in which a signature is evidenced by a mark. And it has never been supposed, that the statute does not apply as well to that as to the case of an actual subscription of a name. So, when a note is signed with an initial, as is the case with one of the signatures to this note, it could not be reasonably held, that the plaintiff should prove, in the absence of the statutory plea, the identity of the signature.

No injury can ever arise to a defendant from this course of decision, as he has the right at any time after the institution of the suit, to call for an inspection of the writing on which he is sought to be charged ; and if not made by him, or by his authority, he can always throw on the plaintiff the burthen of proof, by interposing the plea designated by the statute. A contrary rule would open a door, in almost every case, to let in the question of identity ; and any peculiarity of signature, or want of skill, in tracing the characters, constituting a name, would introduce a vexatious question before the court or jury.

We do not wish to be understood as admitting an opinion, that an actual variance in the description of a name or other part of a written instrument, is not now as fatal as it was before the enactment of the statute ; but we are of opinion, that in this case, there is no attempt at description, and consequently there can be no variance.

Let the judgment be affirmed.

COLLIER, C. J.

— In this case, the declaration, in my opinion, mis-describes the note, which was offered in evidence to sustain it. I do not consider the signature illegible: it is “ Dew Daws.” And the note cannot au-thorise a recovery against “ Duncan Dew,” unless the declaration contain recitals or averments, showing that it was made by him. Without examining the legal accuracy of the reasoning of the court, upon the premises laid down in their opinion, I will merelv declare my dissent from the judgment in this case.


text:
    REID VS. EDWARDS
    1. The rules for the construction of contracts, whether verbal, written, or under seal, are the same. All contracts are to be performed according to their legal interpretation, and where one undertakes expressly, for the performance of some act, the positive engagement casts upon him a duty, the discharge of which cannot be excused, by shewing his inability, by reason of the lawful interference of some third person.

      2. Where one neglects to qualify his contract, so as to make such an excuse available, he waives it as a defence, against a recovery of damages for non-performance.
    3. It is competent for a defendant to admit the legal sufficiency of the cause of action with which he is charged, and put the plaintiff upon proof only, of its existence in point of fact : and where this is done, and the issue found against the defendant — the legality of the contract is not open for revision.
    Error to the Circuit court of Lauderdale.
    Assumpsit, before Judge Lane. This was an action brought by plaintiff below, on a special agreement, which was in substance this :
    The defendant held in his hands an execution offi. fa. against one ¡'bonns W. Edwards, in favor of Charles Whitaker, which was levied on a negro boy named Henry, in the possession of the plaintiff, as the property of Thomas W. Edwards. The defendant agreed, that if plaintiff would pay him the amount of the execution, he would return the boy to him on the bank of the Tennessee river, at Florence ferry.
    The declaration contained a special count, alleging that plaintiff had paid to defendant, the amount called for by the execution, in pursuance of their agreement, hut that defendant had failed to deliver the hoy as he had agreed to do: To which were added counts for money paid and expended, had and received. Plea, non-assumpsit. Verdict and judgment for plaintiff.
    The evidence disclosed, in substance, the following facts: That the defendant was acting as deputy sheriff, and in that capacity took the slave, which was in possession of plaintiff, to satisfy the aforesaid execution; that he received from plaintiff one hundred and sixty-eight dollars, the amount called for by the execution; and was to have delivered the hoy at Florence ferry, on the bank of the Tennessee river. The execution was by defendant returned satisfied; that, the slave was in jail, and that plaintiff and defendant were proceeding to the jail, to carry into effect their said agreement,- but the sheriff refused to deliver the slave, alleging that another execution in favor of a third person, against the said Thomas W. Edwards, had come to his hands, and that he must retain him to satisfy that execution: That the sale to satisfy this last execution was forbidden, and no bond of indemnity having been given, the boy was delivered to attorney of plaintiff, in the last mentioned execution.
    The bill of exceptions shews, that the court charged the jury, that if they believed that the defendant promised to deliver the boy at a particular place, in consideration of the payment of the money, he was bound to have done so, notwithstanding another execution might have been levied on the property by the sheriff himself - -whether it was liable to satisfy the execution or not. And that the execution which was levied by the sheriff in favor of the third person as aforesaid, and produced and read in evidence, must be excluded from their minds in making up their verdict.
    The plaintiff in error, assigned the instructions given to the jury as error.
    Peck, for the plaintiff in error.
    Parsons, contra.
    Peck, for the plaintiff, contended that defendant ought not to have recovered below, on the special agreement, because it was void, It was in derogation of the rights of the plaintiffs in execution: it was without consideration, and against public policy ; and to this effect cited 1 Johns. Cases, 284; 7 Johns R. 425; 15 Johns. R. 443.
    2, The plaintiff below could not recover under the common counts, because the money received was in discharge of the execution, and so applied: consequently, the defendant was, and still is liable for the money so received, and should he be compelled to pay it in this form of action, would not be protected from paying it again on motion — (Chitty on Cont. 193; Chitty’s PI. 334, note 4; 7 Johns. R. 132; 8 T. R. 269.)
    Parsons, contra.
    Yerbal and written contracts have the same efficacy, properties and effects — (Chitty on Con. 1.) The construction of contracts, the same whether in law or equity — -nor are they varied by the circumstances of the contract being under seal — (lb. 19; 13 East, 74.) The tenant on a general lease is bound to repair, notwithstanding the premises were burnt — (6 T. R. 650; see also Hadley vs. Clark, 8 T. R. 151 — which is the Embargo case.)
   COLLIER, C. J.

— The arguments at the bar have presented this case to the court, as if the legality of the contract disclosed in the first count of the declaration, was now open for revision. A slight examination of the state of the pleadings would doubtless have convinced the counsel that they were laboring under a misapprehension. Had the plaintiff have desired to avail himself of the invalidity of that contract, his course was plain — he had only to demur to that part of the declaration. But instead of doing this, he has by his plea, tendered an issue of fact to the entire declaration, and on this issue, was the case tried in the Circuit court. It is clearly competent for a party to admit the legal sufficiency of the cause of action with which he is charged by the pleading, and only put his adversary upon proof of its existence in point of fact.

The first count set forth the cause of action as it was proved at the trial, and if it did not show a liability, the plaintiff should have demurred to that count, unless he was unwilling to avail himself of a legal ádvantage. His omission to except to the declaration in the Circuit court, precludes objection here. If injustice has been done him, the fault is not in the law, but in himself, in not presenting his defence in such a form as to authorise its consideration.

It will follow, from what we have said, that the charge of the Circuit court was correct, so far as it assumes the right of the defendant in error to recover, if he has paid the sum of money which he stipulated with the plaintiff to pay him: the payment of the money was the only act to he done by the plaintiff. So that the court merely determined, if the defendant had performed his part of the contract, under the state of the pleading, the plaintiff was responsible to him in damages.

It is, however, argued, that the charge to the jury is erroneous, in supposing that the subsequent levy by the sheriff afforded no excuse for the non-performance of the plaintiff’s contract. The rules for the construction of contracts, whether verbal, written, or under seal, are the same. All contracts are to be performed according to their legal interpretation, and where a party undertakes expressly for the performance of some act, his positive engagement casts upon him a duty, the discharge of which cannot be excused, by showing his inability, by reason of the lawful interference of som.e third person — (See Chitty on Con. 272, 273.) By neglecting to qualify his contract, so as to make such an excuse available, he waives it as a defence against a recovery of damages for non-performance. This point we understand to have been in effect determined in Perry vs Hewlett, (5 Porter’s R. 318.)

It is needless to consider what (under a proper state of case,) would be the effect of the payment of the money by the plaintiff, to the execution creditor, as the question was not raised below, and it does not appear when the payment was made, whether before or after suit brought.

Considering the case only as it is presented by the pleadings, and not as it might possibly have been presented, we think there is no error in the instruction given to the jury.

The judgment is consequently affirmed.


author: GOLDTHWAITE, J.

text:
    WOMACK, ADM’R VS. DEARMAN.
    1. The constitutional courts of the United States are not viewed as foreign tribunals. — They are domestic tribunals, whose proceedings all other courts of the couutry, are bound to respect, and receive — when exempli (ied under the seal of the courts; and such seal is presumed to be known, and establishes itself, in the same manner as each court within a State, is presumed to know, and recognise, the seal of any other court within the same State.

      2. No distinction can be made, as to the manner of proving the proceedings of the courts of the United States, established in a territory, and those of the courts of the same character, established within the limits of a State.
    3. Dubitatur — whether a territorial court, created by the local legis’ ature of a terri lory, cau be viewed in any other light than the courts of a foreign country.
    Error to the Circuit court of Sumter county.
    Debt on judgment — tried by Judge P. Martin.

    This was an action of debt on a judgment obtained in the Superior court of Escambia county, West Florida. Plea, mil tiel record ; which was sustained by the court.
    On the trial of the case, plaintiff offered in evidence, the transcript of the judgment, which was certified by the clerk, with the seal of the court affixed : — to which was appended the certificate, under seal, of the judge of the United States District and Superior Court of West Florida, that the attestation was in the proper hand-writing of the clerk, and was in due form of law.
    Defendant objected to receiving the transcript, on the ground, that the certificates of authentication, were not sufficient to authorise the record to be read ; which objection the court sustained ; — and decided, that to au-thorise the transcript to be read upon the trial of the cause, it must be authenticated, under the great seal of the executive department of the territory of Florida.
    Plaintiff in error, assigned — the rejection of the record, offered to support the issue, on the plea of nul tiel record.

      Thornton, for the plaintiff in error.

      Erwin, contra.
   GOLDTHWAITE, J.

— The question presented by this record, is one of novelty, and has not hitherto been raised, or decided by any court, so far as we can ascertain. Itis as to the mode by which the judgments of the courts of the territories of the United States are to be proved, to authorise them to be admitted as evidence in a State court; — or rather, if such a judgment can be evidenced by the certificate of the clerk of the court rendering the same, under .its seal, and with the additional certificate, in conformity with the requisitions of the several acts of Congress, providing the manner in which similar proceedings of the State courts shall be certified %

It is admitted to be doubtful, whether Congress has the power to legislate on this subject — as the constitution only authorises it to prescribe the manner in which tñe public acts, records and judicial proceedings of the States, shall be proved ; but it is insisted that on general principles of comity, the proceedings of the territorial courts are admissible in evidence, when certified by the clerk and judge — in as much as these courts emanate from the authority of the United States — which can not be considered as a foreign government; and consequently, the proceedings of these courts ought not to be governed by the rules of evidence which apply to the proof of the proceedings of foreign courts.

This argument is certainly entitled to much weight, but can not, in our opinion, be supported to the extent in which it is announced ; because its effect would be, to place the records and proceedings of territorial courts on higher ground than can be claimed for those of the States.

Without the aid of the constitutional provision, this kind of proof would be governed and regulated by the laws of the several States; and it is not a matter of doubt, that previous to the formation of the old confederacy, they were in all respects foreign to each other, and no more respect was due, of right, to the proceedings of the courts of one, when introduced in evidence in the courts of another, than was due to those of any other foreign nation. As no different rule is prescribed by the constitution, it is not perceived how the territorial courts of a territory can be viewed in any other light, than those of another country. But an assentiab difference is supposed to exist, between territorial courts, properly so called, and courts of the United States established in a territory. Congress is not restricted by the constitution from establishing such courts; and no distinction can be made as to the manner of pn ving their proceedings and those of courts of the same character, established within the limits of a State.

This distinction, between a territorial court and a court of the United States, is adverted to by Judge Story, in his Commentaries on the Constitution; in which he observes — “ If the power <o * ¡v. tc courts is given to the territorial legislat ire, in■- e courts are to be deemed strictly territorial, and in no se use, constitutional courts, in which the judicial powers cinferred by the constitution, can be deposited, — They are incapable of receiving it.” — (3 Story’s Com. 196.)

Keeping in view this distinction, the argument of the counsel for the plaintiff in error, is correct. The constitutional courts of the United States certainly can not be considered as foreign, in any sense of the term. They are domestic tribunals, whose proceedings, all other courts of the country are bound to respect and receive, when exemplified under the seal of the courts ; and such seal is presumed to be known, and establishes itself, in the same manner, as each court within a State is presumed to know and recognise the seal of any other court within the same State. This point was decided by the Supreme court of New-York, in the case of Pepoon vs. Jenkins — (2 Johns. Cases, 119,) — -and this decision has ever since been acquiesced in.

In this aspect of the case, it becomes wholly unnecessary to' agitate the question, whether the supplemental act of Congress, of twenty-seventh of March, eighteen hundred and four, is warranted by the terms of the constitution — if it shall be ascertained that the judgment sought to be introduced in the court below, is that of a constitutional court oi the United States, and not that of a territorial court created by the final legislature of a territorial government.

From the certificate of the clerk, made part of the record by the bill of exceptions, we are i tomird that the judgment was rendered by the Superior Court for Escambia county, for the western district of Florida.— This court is one of ti ose which was established by act of Congress of the twenty-sixth of May, eighteen hundred and twenty-four, and is invested with all the powers of the Dihrict court of the’ United States for the Kentucky district, in addition to the powers of taking cognizance of all matters aris ig under the laws of Florida.

It will thus be i. erceived, fiat this court is of the same description with the District courts of the United States, established in the States proper; and that its proceedings, under the decision before adverted to, can be given in evidence, when certified by its clerk under the official seal.

It results from these views, that the record introduced in the court below, was sufficient to maintain the issue of nul tiel record, and judgment should have been rendered on this issue, for the plaintiff, instead of the defendant below.

Let the judgment be reversed, and the cause remanded.


text:
    DOCKERY VS. DAY.
    1. The introduction of a note declared on, is not sufficient to support an issue, formed, on the allegation of a subsequent promise, in a replication to a plea of infancy.
    2. The introduction into a replication, of a protestation against the truth of the plea, cannot have the effect to render it necessary for the defendant to prove that, which the replication confesses and avoids.
    3. Where a defendant pleads infancy, to plaintiff’s declaration on a promissory note, and plaintiff replies a subsequent promise ; he admits the truth of the plea, and proof of a subsequent promise or ratification of the contract alleged in the declaration, is necessary to be shewn affirmatively, — notwithstanding the protestation contained in the replication.
    Error to the County court of Tuskaloosa.
    Assumpsit on a promissory note. Plea, infancy and non-assumpsit. Replication to the plea of infancy, to wit: “ The plaintiff protesting, that defendant was not an infant, as alleged in his plea, says, that after he came of age, he promised to pay said note,” &c. To which replication, there was a rejoinder and issues. Verdict for plaintiff.
    The bill of exceptions stated, that all the evidence offered by plaintiff, was the note on which the action was brought. Defendant offered no evidence, but asked the court to instruct the jury, that under the issue formed upon the replication of a subsequent promise, after the infant became of age, the plaintiff must prove the replication to be true, in fact, to the satisfaction -of the jury, to enable him to recover. The court declined to charge in the manner requested, and instructed the jury, that the general issue being pleaded, defendant, notwithstanding the special plea of infancy, and the replication of a subsequent promise, must shew himself to have been an infant, to entitle him to a verdict. All of which was here assigned as error.
    Crabb, for plaintiff in error.
    Peck, contra.
   GOLDTHWAITE, J.

— The cause of action is a promissory note, to which, amongst other things, infancy is pleaded. The plaintiff replies a subsequent promise made by the defendant, after attaining his full age, and protesting that he was not an infant when the note was made. On this replication, issue is joined. The only question presented by the bill of exceptions is, whether this issue could be maintained by the introduction of the note declared on, without evidence of any subsequent promise to pay the same.

The introduction into this replication of a protestation against the truth of the plea, cannot have the effect to render it necessary for the defendant to prove that, which the replication confesses and avoids.

The sole object of special pleading is to narrow the matters in dispute to a single point; but this object can never be attained, if parties are permitted to evade the effect of an admission, by a protestation against the truth of the very matter necessary to be admitted, before it can be avoided.

But it is insisted, tiled the facts of this case constitute an exception to the general rales of pleading and evidence, and that such exception is recognised and enforced by authority. The case of Borthwick vs. Carruthers, (1 Term Rep. 648,) does not sustain the defendant in error in this position. The facts of that case were as follow: To an action for goods sold and delivered, the defendant, amongst other things, plead infancy. The plaintiff replied a subsequent promise after the defendant attained his full age. To this, the defendant rejoined, that he did not promise after he had attained his full age; and on this rejoinder,,issue was taked to the country. The plaintiff proved a promise, and rested his case. This was held to be sufficient, as the infancy of the defendant was a fact which must be presumed to be exclusively within his knowledge; that after proof of a promise, as the presumption of capacity then arose, it was necessary for the defendant to repel this presumption by proof.

It will be perceived, that the case cited does not determine that the proof of the facts alleged in the declaration would have been sufficient to support the issue formed on the allegation of a subsequent promise. Evidence was introduced of a promise, which must of necessity have been subsequent to the sale and delivery of the goods, and this promise supported the issue, as the legal presumption of capacity thence arose. In the present case, if the plaintiff had made proof of any promise subsequent to the making of the note, the same presumption of capacity would have arisen, and the issue would have been supported Without further proof. This presumption could, only have-been repelled by the introduction of evidence by the defendant, showing his incapacity by reason of non-age.

The case of Thornton vs. Illingworth, (2 B. &. C. 824,) presented a state of facts very similar to those shewn in this case, and it was insisted that a subsequent promise, made after the commencement of the suit, would maintain, the action. The court decided that it would not, as it could not be referred to the original contract or consideration. Without entering into the inquiry, how far such a promise made here would be considered as supporting the original contract, it may be observed, that if proof of the original contract only would support the replication of a subsequent promise, it was certainly a very unimportant matter to prove a subsequent promise, whether before or after the commencement of the suit.

In the case of Goodsell vs. Myers, (3 Wend. 479,) on a case presenting a state of pleadings and proof very similar to the one at bar, the identical question now raised, was decided. The court there, had no doubt that the infancy of the defendant was admitted by the pleadings, and that proof of a subsequent promise or ratification was necessary to be shewn affirmatively.

These authorities, and the reason of the case, lead us to the conclusion, that the court below erred in giving and refusing the instructions stated in the bill of exceptions.

The judgment must be reversed, and the case remanded.


author: ORMOND, J.

text:
    LEWIS, et ux. VS. MOORMAN.
    1. By the act, authorising the sale of lands, granted by Congress for internal improvement, the State cannot eniorce its claim for the purchase money, against a purchaser, for a failure to pay the instalments: — On such failure, the lands revert to the State.
    2. Therefore, where lands have been thus purchased, and the in-stalments have not been paid by the vendee, in his life time,. — ■ there rests on his personal representative no legal obligation, to discharge them, out of the assets of the estate.
    3. And, a claim of dower, can not rest upon the payment, thus made, illegally, by the personal representative, of instalments due on such lands.
    4. The act of 1816, endowing widows in lands purchased of the. United Stales, on which partial payments only were made, at the time of the husband’s death, and afterwards completed by the personal representative, — has become obsolete.
    5. And an equity, under this statute, cannot be extended to a claim of dower, in lands purchased of the State of Alabama.
    6. Where the purchase money of lands, bought of the State, has been paid by a vendee, before his death, — the widow is dowa-Dle, though the title be not perfected at that time.
    Error to the Circuit court of Franklin county, exercising chancery jurisdiction.
    Petition for an allotment of dower, tried before Judge Coleman. Petitioner prayed for an allotment of dower out of lands, purchased by her former husband from the State, under the act authorising the sale of lands granted by Congress to the State for internal improvement. At the death of the husband, full payment had not been made for the land, but the administrator had since completed the payments out of the assets of the estate.
    To the petition, there was a demurrer interposed by the administrator, — which was sustained by the court.
    The plaintiffs in error assigned, that—
    1. The court below erred in sustaining the demurrer to the petition;

    2. In rendering final judgment against plaintiffs on demurrer.

      Martin, for plaintiff in error.

      Peck, contra.
   ORMOND, J.

— The right to dower is aserted by the plaintiffs counsel, under the equity of the act endowing widows in lands purchased of the United States, on which partial payments only had been made at the time of the husband’s death, and the title afterwards completed by the executor or administrator — as by the provisions of the act, they were under certain circumstances permitted to do.

It is not insisted, that this act, in terms, embraces this case — but it is contended, that it is within the equity of that statute. At the time of the passage of that act, a very considerable portion of all the lands in the State were held under the general government, by an incomplete or inchoate title. To answer the exigency of this particular state of things, the act in question was passed, which, in its nature, was temporary, and having accomplished the objects for which it was designed, has become obsolete, and was not transferred into Aikin’s Digest. No advantage, therefore, can be derived from that statute by the petitioner, unless she can bring herself within its terms. But the land, in this case, was purchased of the State of Alabama, and of course is not within the terms of the law, — and as to any equity arising under it, it is a sufficient answer, that it was temporary in its nature, designed to remedy a particular mischief, and cannot therefore he extended beyond the object in view in its enactment.

It is also insisted, that the law giving widows dower in trust estates, is applicable to this case. The law is on the 9th page of Aikin’s Digest, section 38. “ Where any person, to whose use, or in trust, for whose benefit, another is, or shall be seized of land, tenements or heredita-ments, hath or shall have such inheritance in the use or trust, as that if it had been a legal right, the husband or Wife of such person would then’ have been entitled to curtesy or dower; such husband or wife shall have and hold, and may, by the remedy, proper in similar cases, recover curtesy or dower of such lands, tenements or he-reditaments.

If, at the death of the husband, the purchase money had been paid to the State, there can be no doubt the widow would be entitled to dower. It is, however, supposed, that inasmuch as the. amount due on the lands at the death of the husband, has been paid by the administrator out of the assets of the estate, thereby exhausting, to that extent, the share of the widow in the personalty, she is entitled to dower out of the subject into which the personalty has been converted.

This argument, admitting, for the present, it is well founded, rests on the supposition, that the debt due the State is such a charge on the personalty, as the heir can call on the executor to discharge. By reference to the sixteenth section of the act which authorised the sale of the lands in question, it will be seen that the State could not enforce its claim for the purchase money, against a purchaser, for a failure to pay the instalments, but that on such failure, the land reverted to the State. This principle is established in the case of the Trustees of the University vs Winston, (5 Stew. & Por. 17.)

It follows, that if there was no legal obligation on the executor to pay the remaining instalments due the State, he could not, by any act of his, affect the right of the widow to her distributive share of the personalty. The argument, therefore, founded on the supposition, that the widow’s share of the personalty might be exhausted in the payment of the land, and that therefore she is entitled to dower, fails.

What would be the right of the widow, in a case where the husband left land on which a sum of money was due, which the executor was under a legal obligation to fay, is a question of the gravest import, which has not yet been raised in this State, and upon which we express no opinion.

There are other errors in the record, upon which, as the view we take is decisive of the case, we express no opinion. The judgment is affirmed.


text:
    THE STATE VS. LASSLEY.
    1. Where it appears from an entry on the record, that the grand jury elected, impanneled, sworn and charged, returned a bill of indictment; it must be intended to have been done as the law requires — the reverse not being shewn by pica; and that they retired from the presence of the court, after having been qualified for the performance of their duties.
    2. Where an indictment has one good count, though it has several that are bad, a general finding will be referred to the good count, and will be sustained by it.
    3. Whether it be necessary, in an indictment, to set out a day certain, on which the offence charged, was committed, quere.

    Error to the Circuit court of Cherokee.
    Indictment for playing at cards — tried before Judge Shortridge. Plea, not guilty. Verdict, guilty.
    Defendant moved to arrest the judgment, on the grounds — That the grand jury were not sworn; and that the indictment was defective. The indictment contained three counts; the second of which did not allege a day certain, on which the offence alleged was committed — which motion the court declined hearing, on account of the defendant’s not being personally present in court.
    Martin, for the plaintiff in error.

      Attorney-General, contra.
   COLLIER, C. J.

— The defendant was - indicted for playing at a game with cards, at a place forbidden by law — and pleaded not guilty.

After conviction, Ms counsel moved in arrest of judgment—

First. It did not appear that the jury were regularly sworn and empanneled.

Second. The indictment was insufficient.

But the court refused to consider of the motion, unless the defendant himself appeared in court; and thereupon, referred as novel and difficult, for the decision of this court — -the'propriety of its refusal to entertain the motion in arrest of judgment, and the sufficiency of the reasons therefor., as assigned by counsel.

It will be needless to examine the first question sent up, if the reasons assigned for the action of the court, were not such as to warrant an arrest of the judgment. We will then, first dispose of the latter question.

In the preliminary entry, which recites the venire fa-cias, and the drawing of the grand jury, it does not appear that they were sworn and charged ; but immediately there-under, we find the following : “ The grand jury, elected, impanneled, sworn, and charged to enquire for the body of Cherokee county, returned into open court the following bills of indictment, &c.” Among them is that on which the defendant was tried. Now, here is an entwy made under the supervision of the court, which informs us that the grand jury were sioorn and charged. We must intend it to have been done as the law requires — as the reverse is not shewn by plea.— They returned into open court” — which implies, with all force, that they had retired from the presence of the court, after having been qualified for the performance of their duties. Conceding that the qualification of the grand jury should appear of record, elsewhere than in the indictment itself, we think this is sufficiently shown— (though not with the usual formality,) to sustain the verdict.

The first count in the indictment charges, that the defendant and another, ‘‘on the ninth day of October, in the year of our Lord eighteen hundred and thirty-seven, in the county aforesaid, did play at a game with cards, in a public place, &c.”

The second count charges, that the defendant and another “ did play at a game with cards, in a store-house for retailing of spirituous liquors, &c. on the day and year aforesaid.”

No objection is made to the first count; but it is said that the second is defective, in not alleging the offence to have been committed on the day and year aforesaid, or on some particular day. The necessity of laying a day certain in an indictment, has been regarded by high authority, as at least, questionable. — (The People vs. Van Santvoord, et al—9 Co wen’s R. 660.) Yet, conceding that it is indispensable, and in the present case, it can avail the defendant nothing — the first count is confessedly good. And it has been heretofore determined, upon very full consideration, that where an indictment has one good count, though it has several that are bad, a general finding will be referred to, and sustained by the good count. — (The State vs. Coleman—5 Porter’s R. 32.)

So that, without examining the propriety of the refusal by the Circuit court, to entertain the motion of the defendant’s counsel, we are satisfied that the reasons in arrest of judgment were insufficient, and that the judgment of that court, as to the questions referred, he affirmed.


text:
    KIRKSEY VS. BATES, SURVIVOR.
    1. A Notary Public is an officer known to the law' merchant, and. of consequence to the common law, of which it is a part,
    2. Notaries Public are authorised by the common law to provide their own seals,
    3. The creation of the office of Notary Public by statute, autho-rises the officer to act in the form prescribed by the common law, as it is impossible for him to use' the seal required by the Legislature: the right to perform notarial acts having also-been recognised by several subsequent statutes.
    4. The requisitions of the seal, prescribed by the act'of eighteen hundred and three, must be regarded as obsolete, by the omission to declare what are the arms of the State.
    Lrror to the Circuit court of Marengo.
    Assumpsit, tried before Judge Chapman.

    This was an action of assumpsit, on an inland hill of exchange, protested for non-payment. On the trial, an exception was taken to the notarial seal, as being insufficient to establish the protest, because it did not appear to have been engraved with the arms of the State, as directed by the statute; and because, instead of being subscribed with the name of the notary, it contained the initials of his name only. The objection was overruled, and a verdict rendered for plaintiff.

      Plaintiff here assigned for error, the admission of the protest as evidence.

      Street & Thornton, for plaintiff in error.

      Erwin, contra.
   COLLIER, C. J.

— By the act of eighteen hundred and three, entitled “ an act concerning notaries public,” (Aik. Dig. 326,) the Governor is invested with power to appoint a competent number of notaries public, of persons resident within the then territority,not to exceed in number more than two, to reside in any one county. The notaries thus appointed, are authorised to administer oaths or affirmations according to law, in all matters belonging or incident to their notarial office — to receive proof or acknowledgement of all instruments of writing relating to commerce or navigation — such as bills of sale, bottomries, mortgages, and hypothecations of ships, vessels or boats, charter-parties of affreightment, letters of attorney, and such other writings as are commonly proved or acknowleged before notaries within the United States; and also to make declarations, and testify the truth thereof under their seal of office, concerning all matters by them done in their respective offices.

The act, then, after providing for the registry of the official acts of notaries, the certification of copies, and the deposit and safe-keeping of their registers upon the death of a notary, proceeds as follows: “Every notary shall provide a public notarial seal, with which he shall authenticate all his acts, instruments and attestations; on which seal shall be engraved the arms of this territory, and shall have for legend, the name, surname, and office of the notary using the same, and the place of his residence.” The remaining section merely prescribes the oath to be taken, and the bond to be executed by a notary. The act of eighteen hundred and fourteen, autho-rises a justice of the peace to discharge the duties of a notary public, where he is absent or incapable of acting. The act of eighteen hundred and nineteen, provides an oath and bond for notaries, and changes the mode of their appointment, so that now the judge of the County court, and any two of the commissioners of revenue and roads, shall recommend to the Governor a proper number of persons to act as notaries public in their county, whose duty it shall be to commission the persons recommended — (Toulmin’s Dig. 676 ; Aik. Dig. pages 86, 326, 327.) These are the only statutes in regard to the appointment and qualification of notaries.

A notary public is an officer long known to the civil law, and designated os, registrar ins, actuarius, or scrivari-us. Anciently, he was a scribe, who only took notes or minutes, and made short drafts of writings and instruments, both public and private. At this day, in most countries, a notary public is one who publicly attests deeds or writings, to make them authentic in another country; but principally in business relating to merchants. In England, several statutes have at different periods been enacted, regulating 'tlie appointment of that officer, and to some extent defining his duties—(41 Geo. III, c. 79; 3 and 4 W. 4 ch. 70.) But none of these statutes prescribe the particular seal to be employed by a notary, so far as we have been able to ascertain their terms.

A notary public, it has been said, is an officer known to the law of nations; — hence his official acts receive credence, not only in his own country, but in all others in which they are used as instruments of evidence. He is certainly recognised by the law merchant, and his acts, to some extent, are indispensable to its efficacy. As in the case of a foreign bill, a protest, is necessary to shew its dishonor by the refusal of the drawee to accept or pay it, and can only be excused, by proving either that the drawer had no effects in the hands of the drawee, and no reasonable expectation that the bill would be honored, or that the drawer has waived its necessity by a promise to pay, under a knowledge of the circumstances —(Legge vs. Thorpe, 12 East’s R. 171.)

When a statute creates an office previously known to the common law, for the purpose of ascertaining the duties of the officer, and the manner in which they are to be exercised, reference must be had to that laiv in the absence of legislation. Let it be supposed, then, that the legislature had merely provided for the appointment and qualification of notaries public, without attempting to define their powers, or to declare how their acts were to be authenticated, and it cannot be doubted that notarial acts, would have been required to be done, according to the forms used at the common law. Now, according to that law, a notary was required to provide his own seal, With such inscription a’s his judgment or fancy might dictate. But let us suppose farther, that the legislature have .created such an office, and directed the officer to perform his duties in a particular manner, the practicability of which, depends upon some act first to be done by that body, shall its omission deprive the officer of all authority ? It is unnecessary to answer this question. For the legislature, in all its enactments since eighteen hundred and three, in regard to notaries, treat them as officers invested with all power which ordinarily belong to their offices. And even as late as eighteen hundred and twenty-eight, it was enacted, that “The protest of a notary public, which shall set forth a demand, refusal, non-acceptance or non-payment of any inland bill of exchange, or other protestable security, for money or other thing, and that legal notice, expressing in the said protest, the time when given of such fact or facts, was personally, or through the post office, given to any of the parties entitled by law to notice, shall be evidence of the facts it purports to contain, and entitle the holder of such security to the damages to which, by law, he may be entitled.”

Why was this law enacted by the Legislature, if it did not suppose that our notaries public were invested with all powers appertaining to their offices ? Yet this could not be, if it were necessary to the validity of their acts, that they should be attested by such a seal as they are directed by the act of eighteen hundred and three, to provide. Our statute book does not inform us what device has been adopted to represent the arms of the territory of Mississippi or Alabama, or of this State; and the public acts of the executive branch of the government (if competent to the task,) are alike silent.

It is however, argued for the plaintiff, that the inscription made upon the seal of the State, must be taken to be the arms of the State. Strange as it may seem, the only legal provision extant, in regard to a public seal in either of the territories to which we have referred, is to be found in an act of Congress of seventeen hundred and ninety two, in regard to the territory north west of the river Ohio, which, by a subsequent act was applied to the Mississippi and Alabama territories. The provision referred to, is as follows : “ The secretary of state shall provide proper seals for the several and respective public offices in the said territories,” (Turner’s Miss. Dig. p. 40, sec. 8.) Here, we discover no particular seal is prescribed, but a mere direction is given to provide a seal for each public office By the twelfth section, fourth article of our Constitution, it is ordained, that i! there shall be a seal of this State, which shall be kept by the governor, and used by him officially ; and the present seal of the territory shall be the seal of the State, until otherwise directed by the General Assembly.” This is all we can find in relation to a seal. What is represented by its impression, we are not informed, otherwise than by its inspection. By a public ceal, we legally understand, an impression made of some device, by means of a piece of metal or other hard substance, kept and used by public authority. What that impression is, unless prescribed by law, or other public act, can not be known but in the way we have mentioned. Arms., in the sense in which they are used in the act of eighteen hundred and three, in regard to notarial seals, clearly mean the armorial ensigns of a State or political community, intended to distinguish it from others, which is usually transferred to its national flag or banner.— Yet, perhaps a public flag can not always be considered as a true indication of the arms of the country to which it belongs; for most countries have two banners — the one borne by vessels of war, and the other, by those engaged in commerce.

In the days of chivalry and knight errantry, and at the present time, where distinctions are recognised by law, between wealth and other adventitious influences, and property or weakness, the adventurous and the great have adopted their insignia, suggested by valorous achievment, or other causes. These are called their arms or family escutcheon, and are usually engraved on their seals. Yet, does it follow, that by the mere adoption of a seal, to give solemnity or validity to contracts, the ensigns armorial of a family are also adopted, and that the device upon the seal repsesents them ? It is apprehended not.

In respect to the legend, as the engraving directed by the act can not be made, the legend is, in our opinion, unnecessary.

Our conclusion, from the best examination we can give the question presented by the counsel at bar, is—

1- That a notary public is an officer known to the law merchant, and of consequence, to the common law, of which it is a part.

2. That notaries public were authorised, by that law, to provide their own seals..

3. That the creation of the office by statute, author-ises the officer to act in the form prescribed by the common law, as it was impossible for him to use the seal required by the legislature ; the more especially as the right to perform notarial acts, has been recognised by several subsequent statutes.

And lastly — that the requisition of such a seal as the act of eighteen hundred and three describes, must be considered to be obsolete, by an omission to declare what should be the arms of either of the territories or this State.

The consequence of which is, that there is no error in the record, and the judgment is affirmed.


text:
    M'GEHEE VS. GREER.
    1. A payment made on a note is equivalent to all admission, that at the time of the payment, the debt was due, but the party re-lying on such payment must prove its date; — as, to permit that1 faceto be established by the credit entered on the note, would' be allowing the party relying on it, to make evidence for him-self.
    2. Where a party, by a demurrer to evidence, takes from the jury their legitimate business, the court will incline against him-in cases where the tendency of the proof is doubtful.
    3. It is a well established rule, that payment of part of a debt' removes the bar of the statute of limitations^ so as to prevent the statute from running previous to such payment.
    Error to the County court of Tuskaloosa.
    This was an action of assumpsit upon a promissory note, signed by the defendant in error. To the declaration, the defendant plead, the general issue, and the statute of limitations.
    The writ was issued on the twenty-fifth day of' March, eighteen hundred and twenty-nine — The note was dated the fourteenth day of February, eighteen hundred and twenty-three, and was payable one day after' date.
    The plaintiff offered in evidence the note declared on, upon which appeared the following endorsements:— “Sept. 21, 1824. Received of the within amount, sixty dollars."
    " March 20, J835 Rci -uved of the within note, one hundred and twenty-seven dollars, sixty-nine cents, in Bend’s note.”
    The plaintiff proved by a 'witness, that a short time before the suit was brought, he (the witness, called on the defendant, in behalf of the plaintiff, for payment of said note; when the defendant informed the witness that the note was just, but that there was a credit to Which he was entitled, on account of a claim on one Bend: that thereupon the witness stated to defendant, there was a credit on the note for the Bend claim. The witness also stated, that according to his best recollection, he showed to the defendant the note and credit.
    The defendant’s counsel having demurred to the evidence, the case went to the court, who sustained the demurrer, and gave judgment for the defendant.

      Crabb, for plaintiff in error.

      Peck, contra.
   ORMOND, J.

— Scarcely any subject has been more prolific of disputes and subtle distinctions, than the statute of limitations, and it is a matter greatly to be regretted, that the plain letter of the statute has ever been departed from, In the case of St. John vs. Garrow, (4 Porter, 223,) it was held, that an acknowledgment of a subsisting liability, will take a case out of the statute; and in the case of Watson vs. Dale, (1 Porter, 243)—that a payment endorsed on a note, would remove the bar of the statute. A payment on a note is, we think, precisely equivalent to an admission, that at the time of the .payment, the debt is due; but it is necessary that the party relying on such payment, should prove the date of the payment: to permit that fact to be established by the credit entered on the note, would be manifestly allowing the party relying on it, to make evidence for himself.

The question, then, which the court, under the issue, had to try, was, whether the payment relied on to take the case out of the statute, was made at the time it bears date. This fact is to be ascertained by the testimony.

The witness who presented the note to the defendant in error, states that when he called on him for payment of the note, he admitted it was just, but that he was entitled to a credit on account of a claim against a certain Bend; the witness then informed him that there was such a credit on the note, and that according to his best recollection, he showed the note and credit to the defen - dant.

The court being, by the demurrer to evidence, substituted for the jury, and required to draw' all such conclusions from the testimony as a jury could reasonably infer, let us enquire what the effect of this proof is. The witness, it is true, does not swear positively that the defendant saw the note, and the credit endorsed on it, but as mathematical certainty is not required, and as there was no testimony impeaching the recollection of the witness, the testimony must be held as establishing the fact, that the defendant saw the credit on the note. The language used by him, it is true, implies something short of absolute certainty, but this is the case with all parol testimony. In every case, a witness swears according to his best recollection, and whether he expresses himself thus or not, there is always a possibility that he may be mistaken. We cannot doubt that a jury would consider the fact as proved.

What is its effect ? It is an established principle, that silence, when a statement is made from which a charge is to arise, is sufficient to authorise a jury to infer that the charge is true. This inference is founded on an obvious principle of human nature, and is constantly acted on, not only in the jury box, but in the business of life. ■It is by no means conclusive, and is perhaps the weakest of all testimony, on which to form a verdict; yet it is a conclusion which the jury may draw from the fact. It is a presumption which canpot be considered a violent one. If gentlemen will, by this proceeding, take from the jury their legitimate duties, and devolve them on the court, they must expect that the court will incline against them, in all cases where the tendency of the proof is doubtful.

We think, therefore, that as it is fair to infer that if the date of the credit had not been correct, the defendant would have objected to it, for that cause — it must be considered as proven, that he admitted the credit as made. This brings the case within the influence of the decision cited from 4th Porter, which is also an authority to show that the proof was properly admitted, under a general replication to the plea.

We have been urged to decide in accordance with the latest decisions, that an express promise is necessary to take a case out of the statute of limitations.

We understand it to be well established, that a payment of part of the debt removes the bar of the statute, so as to prevent the statute from running, previous to such payment.

Tlie judgment of the court below is reversed, and judgment to be rendered here.

Judge Collier having once been of counsel in this case, did not sit at the argument.


author: GOLDTUWAITli, J.

text:
    ROBERTSON VS. BREEDLOVE.
    1. One who takes a bill or note after it is due, takes it subject to all objections, in respect of want of consideration, or illegality, and all other objections and equities, affecting the instrument itself, and to which it was liable, in the hands of the person from whom he takes it.
    2. But this rule applies only to equities, arising out of the note or bill transaction itself, and the holder is not subject in respect of a debt, due from the indorser to. the maker of a note, arising out of a collateral contract.
    Error to the Circuit court of Montgomery,
    Assumpsit upon a promissory note against the maker, tried before Judge Crenshaw. The action was brought by the plaintiff, as bearer — the note being made payable to Thomas W. Breedlove, or bearer, at two days after date, and dated the thirteenth of August, eighteen hundred and thirty-one. The defendant, under the plea of set off, gave in evidence certain notes drawn by the payee of the note sued on — some of which were dated the seventeenth of February, eighteen hundred and thirty-three, and due the twenty-fifth of December thereat-ter. lie also offered in evidence, a note of payee, dated the nineteenth of July, eighteen hundred and thirty-one, payable on the second of December, eighteen hundred and thirty-one, for nineteen dollars and fifty cents ; and a note dated the fourteenth of June, eighteen hundred and thirty-one, payable to Pond & Converse, or bearer, due at one day after date, for fifty-two dollars. This last mentioned note was made by the payor of the note sued on, jointly with the payee, as surety. This note was subsequently paid by the defendant, but at what time was not shown. It was in proof that the note upon which the action was brought, went into the possession of fhe plaintiff after it became due ; but when, did not appear. On this evidence, the plaintiff requested the court to instruct the jury, that if they believed, the note sued on went into plaintiff’s hands, before the notes held by the defendant, were made, and before the payment, by him, of the note upon which he was surety, then these notes were not legal off-sets in the hands of the defendant.
    The court refused thus to instruct; and charged, that the defendant was entitled to all demands subsisting in his hands, 'before notice of the transfer to the plaintiff: the note being transferred after due.
    All which was here assigned in error.

      Campbell, for plaintiff in errou
    Dargan, contra.
   GOLDTUWAITli, J.

— This note is payable to bearer, and is not within Use influence of the act of eighteen hundred and twelve — (Aik. Dig. 328, s. 6,) — which allows a defendant the benefit of all payments, discounts, and sets-off, made¿had, or possessed against other notes, previous to notice of the assignment. Such was the construction given to it, in the case. of Robinson vs. Crenshaw; (3 Stewart & Porter, 276,) and the legislature then passed the act of eighteen hundred and thirty-three, (Aik. Dig. 329, s. 18,) which extended the provisions of the first section of the act of eighteen hundred and twelve, to notes payable to bearer.

Ashdie note here sued on, was negotiated to the plaintiff, after it became due, it of course became subject to all the equities which, by the common law, attached to negotiable instruments, acquired under similar circumstances ; and it becomes the question, whether off-sets, acquired after the note came to possession of the plaintiff, but before notice to the defendant, of his right, can be allowed.

The general rule is, that a person who takes a bill or note, after it is due, takes it subject to all objections, in respect of want of consideration or illegality, and all other objections and equities affecting the instrument itself, and to which it was liable in the hands of the person from whom he takes it. — (Taylor vs. Mather—3 Term R. 83; Brown vs. Davis—3 ib. 80; Littledale vs. Brown—7 ib. 630 ; Burrough vs. Moss—10 Barn. & Cress. 558; Chitty on Bills, 244.) But this rule applies only to the equities arising out of the noto, or hill transaction itself and the holder is ' not subject to a set-off, in respect of a debt duo from the indorser loathe maker of the note, arising out of a collateral contract. — (Burrough vs. Moss; 10 B. & C. 558.)

In the case cited, the action was on'-a promissory note, negotiated to the plaintiff after it became due ; and the defendant insisted' he had a right to set-off against the plaintiff a demand which he held against the payee of the note so negotiated ; but the court decided otherwise, and laid down the qualification of the rule above quoted.

These authorities are decisive to shew, that the Circuit court mistook the law, when it gave the charge, that the defendant had the right to off-set all subsisting demands in his hands against the payee, before notice of the transfer of the note to the plaintiff. For this error, the judgment of the Circuit court is reversed, and the cause remanded.


text:
    IVEY VS. GAMBLE.
    1. The rule, that a plaintiff can not discharge his action against any one defendant, who has been sued on a joint contract, has not been adopted in this country, to the extent, in which it prevails in England;
    2. The rule, however, never extended to cases, where. one or more defendants, are discharged, by matters subsequent to the contract; as, in case of bankruptcy, and of executors and administrators, where one maybe discharged, on the plea of plene administravit, and a verdict be had against the other.
    3. There is no distinction between a discharge, under a statute of bankruptcy, and a discharge by reason of the statute of limitations, so far as the rules of pleading are involved.

      5. A verdict establishes the truth of pleadings — and so, where defendants are sued jointly, and where the plea and replication are joint, — a verdiet, on the plea of the statute of limitations, in favor of one, and against another joint defendant, will be supported.
    Error to the Circuit court of Lowndes county.
    Assumpsit — tried before Judge Hunter. Suit on a note against two defendants — Ivey and McBride. They pleaded several pleas-; also a joint plea of the statute of limitations. Replication, that the defendants had not been six years within the State of Alabama, previous to suit brought, and that the note was made in South Carolina ; on which issue was taken. Yerdiet for plaintiff, against Ivey, and in favor of McBride, and judgment against Ivey, who here assigned for error, that the judg tnent was rendered against him upon the verdict, as-found by the jury.

      Dargan, for the plaintiff in error.

      Geo. Goldthioaite, contra.

      Dargan, for the plaintiff in error,
    argued — that where two defendants were sued on a joint contract, and one pleads a personal discharge — or gives in evidence matter which goes to his personal discharge — plaintiff may enter a nolle prosequi. — (2 Saunders, 260, 207 ; 1 Wilson, 90 ; 5 Johns. 160 ; 1 Peters’ R. 46, 74 ;) also, that a re-traxit is a bar to an action. Promise by two, to which the statute of limitations was plead — -and an acknowledgment by one — the other not bound. — (Angel on Limitations, 274.)

      Geo. Goldthwaite, for the defendant.
    If the plaintiff had replied as to Ivey only, It would have been a discontinuance — (1 Stewart, 130.) In assault and battery, if two defendants join in a plea of son assault demesne, the jury may find the plea true as to one, and not as to the other. — (1 Chitty, 544.) If the verdict here could not be sustained, it is in the power of two joint defendants to defeat any action. The replication was good. (1 Stewart & Porter, 36.)
   GOLDTHWAITE, J.

— The only question presented is, whether any judgment ought to have been rendered against Ivey, as the pleadings are joint, and the verdict is against him alone.

The rule mentioned by Mr. Williams, in his note to Saunders, (2 Saund. 207, note 2) that a plaintiff can not discharge his action against any one defendant who has been sued on a joint contract, though unquestionable in England, has not been adopted in this country, to the extent laid down in the note. Indeed, there is a manifest injustice, in visiting on the plaintiff, as a fault, what is only his misfortune, when he has contracted with individuals who have not the capacity to bind themselves,, as in the case of infancy and coverture. Yet, even in such cases, it has been decided in England, that the plaintiff can not discontinue against the infant or feme covert, and proceed against the other defendants, but he is forced to discontinue against all, and commence a new action against those liable to be sued.

A more reasonable rule has been adopted in New York, where the plaintiff is permitted to discontinue against a co-defendant, who pleads any matter which shows an inability to make the contract declared on, and he proceeds against the other defendants.—(Hartness v Thomson & wife-5 Johns. 160; Andrus v Waring; 20 ib. 160 ; Whitbeck vs. Cook and Wife—15 ib. 483.)

The rule, however, never extended to those cases where one or more defendants are discharged by matter subsequent to the contract, as in the case of bankruptcy ; which, although a discharge to the action, will not preclude the plaintiff from entering a discharge as to the bankrupt, and proceeding against the other defendants.—(2 Saund. 207, note 2; 1 Wils. 90.) So also, in the case of,executors, one may be discharged on the plea of plene administravit, and a verdict be had against the others.

It is difficult to perceive any sound distinction between a discharge under a statute of bankruptcy, and a discharge by reason of the statute of limitations, so far as the rules of pleading are involved: both are matters which arise subsequent to the contract — both are personal in their character, and can not enure' to the benefit of other parties. Nor can the fact, of the plea and replication being joint, in our opinion, make any difference. It is the verdict which establishes the truth of the pleadings; and as the matter here determined by the verdict, in favor of McBride, can not, in any way, operate to the benefit of Ivey, the judgment was correctly given on it.

Let the judgment be affirmed.