text:
    FREEMAN vs. THE STATE.
    1. No recovery can be had on a penal statute, after its repeal.
    2. By the statute of 1836, to amend and consolidate the laws on the subject of the public roads, the erection of, or casting an obstruction across a public-road, is-the offence made indictable, and before any one can bo convicted under t he same, he must act, and not remain merely passive, by suffering the obstruction to remain after the passage of the act, which he had erected befóte its passage.
    3. Where a defendant, since the passage of the act aforesaid, instead of merely suffering (he obstructions to remain, within twelve months before the finding of the indictment, does by himself or his agent, any act shewing an intention to preserve a nuisance, such for example, as making up the,fence, laying on rails, or other materials to raise or preserve the fence : — such an act would expose the offender to the penalties in the statute contained.
    Error to the Circuit court of Dallas county.
    At the spring term, eighteen hundred and thirty-seven of the said court, the grand jurors for the county, upon their oaths, presented, that on the sixth day of February, in the year of our Lord eighteen hundred and thirty-seven, there was, and from that time hitherto Had been, and still was, to wit, in said county, a certain public road of the first grade, called and known as the Cahavvba and Pensacola State road; and the jurors aforesaid, upon their oaths presented, that Fleming Freeman, late of the said county, on the seventh day of March, eighteen hundred and thirty-seven, did then and there, to wit, in the. said county, unlawfully alter and change said public road, and which alteration and change was not made by ordter of %he Commissioners court, founded on the report of & jury appointed and sworn, as in case of laying out new roads, nor was said alteration and change done to straighten said road through enclosures, or to render it more convenient to the public, — contrary to the statute in such case made and provided, and against the peace, &c.
    And the jurors aforesaid, upon their oaths aforesaid, did further present, that said Fleming Freeman, on the day and year .last aforesaid, and at the county aforesaid, did then and there unlawfully erect a fence across said public road, and did not remove the same within twenty-four hours thereafter, to the great obstruction, hindrance and inconvenience of persons travelling thereon, and contrary to the statute in such case made and provided, and against the peace, See.

    And the jurors aforesaid, on their oaths aforesaid,, did further present,that said Fleming Freeman, on the day and year last aforesaid, in the county aforesaid, did then and there unlawfully cause to he erected, a fence across said public road, and did not remove the same within twenty-four hours thereafter, to the hindrance, and inconvenience and obstruction of all persons travelling thereon, and contrary to the statute, &c. and against the peace, ¿be.
    To this indictment, the defendant, when arraigned pleaded, non culpabilis, and non culpabilis infra- imam annum, See.

    And at the Fall term, in the year first aforesaid, of the said court, came the solicitor of'the circuit,and the defendant, and a jury of good and lawful men of said county, who being elected, tried and sworn, well and truly to try the issue joined, on their oaths said, they found the defendant guilty, in manner and form as chai’ged in the bill of indictment, and assessed his fine at seventy-five dollars: It was therefore considered by the court, that the State of Alabama, for the use of Dallas county, recover of the said defendant™the said sum of seventy-five dollars, so by the jury aforesaid assessed, and the costs in that behalf expended, &c.
    The bill of exceptions stated, that on the trial of the case, the following points were reserved for the consideration of the Supreme court. It appeared from the evidence adduced, that the alteration of the course of the public road described in the indictment,, and the obstruction thereof, charged in the indictment, if any such had occurred, were made and erected before the passage of the act to amend and consolidate the laws on the subject of the public roads, approved .December twenty-third, eighteen hundred and thirty-six; and also had been made twelve months prior to the finding of the indictment, and that the alteration, change and obstruction, continued to remain on said public road, till the finding of this indictment: whereupon, the defendant requested the court to instruct the jury, that on both or either of these grounds, the defendant was entitled to an acquittal under the indictment: that the law in force, when the alteration, change and obstruction were made and erected on said public road, had been repealed by the subsequent act of December, eighteen hundred and thirty-six, the title of which is above recited: also, that the offence charged, if any had been committed, was barred by the statute of limitations. These instructions, the court refused to give — on the contrary, the judge charged, that it appeared in evidence, that the alteration, change and obstruction above referred to, continued to exist up to the finding of the indictment, and the defendant was subject to conviction for said continuation, change and obstruction, notwithstanding it had been made and erected before the passage of the last recited act, and had been erected more than twelve months before the finding of the indictment. The defendant then requested the court to reserve the points above made and decided, as also the question. ■whether the indictment was sufficient to sustain a conviction for a continuation of the obstruction, as above supposed, as novel and difficult, for the opinion of the •Supreme court.
    And at this term the plaintiff in error assigned—
    1. That the court erred in charging the jury, that the offence charged in the indictment, was not barred by the statute of .limitations.
    2. The court erred in charging the jury, that the 'defendant was subject to conviction for the continuation of the obstruction across the public road.
    -3. The court erred in charging the jury, that although the offence was committed before the passage of the act of December, eighteen hundred and thirty-six, yet that the continuation of the obstruction, till the finding of the indictment, subjected the defendant to conviction for said offence.
    4. The court erred in refusing to instruct the jury, that the offence charged in the indictment, was barred by the statute of limitations.
    5. That the court erred as stated in the points re-.ser-ved, as appears from the record.
    ."Edwards, for the plaintiff in error.

      Attorney General, contra.
   ORMOND, J.

This was an indictment against the plaintiff in error for obstructing a public highway. The indictment contained three counts; one for changing a public road, the other, for erecting a fence across the public road. The defendant pleaded not guilty, and the statute of limitations.

On the trial of the cause, it was proved that the alteration of the course of the public road, described in the indictment, and the obstruction thereof, charged in said indictment, were made and erected before the passage of the act to amend and consolidate the laws on the subject of the public roads, approved December 3d, 1836, and also had been, twelve months prior to the finding of this indictment; and that the alteration, change and obstruction, continued to remain on said public road, until the finding of this indictment: whereupon, the counsel for the defendant, requested the court to instruct the jury — that on both, or cither of these grounds, the defendant was entitled to an acquittal under this indictment; that the law in force, when the alteration, change and obstruction, were made and erected on said public road, had been repealed by the subsequent act of December 1CSG — also, that the offences charged, if any had been committed, were barred by the statute of limitations. Those instructions, the court refused to give, and charged tiro jury, that as it appeared in evidence, that the alteration, change and obstruction above referred to, continued to esist up to the finding of the indict men i, the defendant was subject to cor.victien for said a»nti.unation, chango and obstruction, notwithstanding it had been made and erected before the passing of the act last recited; and had been, more than twelve months before the finding of the indictment.

The jury 'found a verdict against the defendant; and by the direction of fnc court, the questions of law arising out of the evidence and charge of the court, are reserved for the revision of this court, as novel and difficult, and now assigned for error-.

It is admitted by the attorney general, that the first count for changing the road, cannot be sustained. The only remaining question, is, whether an indictment can be sustained under the act of December 1836 — for an obstruction of a public road by running a fence across it, previous to the passage of that law, and more than a year before the finding of the indictment.

It is a well settled principle, ana has been so decided by this court, that no recovery can be had on a penal statute after its repeal And the act of December 1836, •contains a clause repealing all acts in conflict with it There can ho no doubt that is the cace here; and the attorney general has very properly conceded, that if this indictment can be sustained, it must be on the act above mentioned, of 1836. The section which controls this case, is in these words: “If any person shall alter or ■chango a public road, unless by order of-the Commissioners court, founded on the report of a jury, appointed and sworn as in the case of laying out new roads, nr unless it bo done to straighten said road through enclosures, or to render it more convenient to the public; or if any person shall erect, or cause to be erected across any public road, a fence, bar, or other impediment, or fell a t oo or brush, or other obstacle on or across the same, and shall not remove it within twenty-four hours thereafter, he shall be liable to indictment, and on being found guilty, shall be fined in any sum the jury trying the offence may assess."

The indictment is founded on this-statute, and is not for the continuation of a nuisance at common law. If by this statute, it is the erection of, or casting an obstruction across, the public road, which is the offence made indictable by tire act, then the charge of the court upon the evidence cannot be sustained, and we think the statute can admit of no other construction. We do not however assent to the proposition contended for, that the act of the legislature legitimated all nuisances of this character, existing at its passage. The doctrine of the common law is, that no length of time legitimates a nuisance—Weld vs. Hornby; Mills vs. Hall.

The act manifestly contemplates," that before anyone can beco ne obnoxious to its provisions, he must act, and not remain merely passive, by suffering the obstruction to remain, after the passage of the act, which he had erectecfebefore its passage. If instead of merely suffering the obstruction to remain, the proof had been, that after the passage of the last act, and within twelve months before the finding of the indictment, the plaintiff had, by himself,' or his agent, done any act, shewing an intention to preserve the nuisance, such for example, in this ease, by making up the fence, or laying on rails, or other material to raise or preserve the fence; such act would subject the offender to the penalties of the law we are commenting on.

We are confirmed in this opinion by the established forms, of indictments at common law, for continuing .a nuisance; they allege not the creation of, but the continuance, of the nuisance.

The judgment must be reversed, and the cause remanded for further proceedings, not inconsistent with this opinion.

       1 Stewart, 347.

       pp. 12, s. 5, acts 1833.

       7 East, 199.

       9 Wend. 315.

       See Archbold’s Cr; PL 478, and authorities there referred to.


source: Caselaw Access Project

author: GOLDTHWAITE, J.

license: Public Domain

text:
    ANSLEY, et al. vs NOLAN.
    1. An assignment^ lauds, not under seal, cannot invest affas-signee with such a title, as will enable him to maintain ejectment.
    2. The mere reference in the caption of the Receiver’s certificate, is no sufficient evidence, that the right of a claimant to lands, was derived under the pre-emption laws of the United States.
    Error' to the Circuit court of Chambers county.
    Trespass to try titles. Thomas F. Nolan, the plaintiff at the Spring term of the Circuit court of said county, eighteen hundred and thirty-seven, declared against defendants, Ansley, et al. — for that whereas, theretofore, the said plaintiff, on the first day of January, eighteen hundred and thirty-seven, in the county aforesaid, was seized and possessed, in his own demesne, as of fee, of a certain close, situate, lying and being, in the said county, known and distinguished as the south-east quarter, of section number twenty-two, township number twenty three, of range number twenty eight, containing one hundred and fifty-nine, and fifty four hundredth acres of land ; and the said defendants, to wit, on the day and year last aforesaid, at, to wit, in the county aforesaid, with force and arms, broke and entered, the said last mentioned close, and ejected, expelled and put out, the said plaintiff, and deprived him of the close aforesaid, and had ever since kept and detained possession of the same, to the great damage of the said plaintiffwherefore he brought suit, as well to recover possession of the close aforesaid, as for the damages, for the detention of the same.— To this declaration there was a plea of not guilty:— replication and issue joined, &c.
    And thereupon came a jury of good and lawful men, who being sworn to render a true virdict, on the issue joined, on their oaths said, they found for the plaintiff, and assessed his damages at four hundred and seventy dollars : It was therefore considered by the court, that the plaintiff recover of defendants, possession of the premises, and the damages so assessed by the jury, together with the costs in that behalf expended, for which execution might issue. From which judgment there was a writ of error.
    The bill of exceptions stated, that on the trial, the plaintiff offered in evidence, a certificate from the receiver of the land office, at Montgomery, showing payment by Leander Burns, to the said receiver, for the land mentioned in the declaration; and an assignment of the said certificate, and the land in question, to the plaintiff, by Burns.
    The plaintiff proved by aliunde testimony that Leander Burns had made his mark as specified in the assignment, but the witness was not present when the mark was made. The proof was, that Burns acknowledged it to be his mark. The defendants objected to the introduction of the receiver’s certificate, and the assignment in evidence—
    1st. Because, by the acts of Congress of eighteen hundred and thirty, and eighteen hundred and thirty-four, the assignment of such certificate was expressly prohibited:
    2dly. Because,-if a transfer of such certificates could be made, that the transfer was not made in such a manner as to convey any interest, not being under the hand and seal of the assignor.

      The defendants then proved that they were-possessed of the premises sued for, before the certificate was issued from the receiver’s office, at Montgomery.— Defendants assigned the receiving in evidence of the certificate, and assignment endorsed thereon, as above specified', to be error; and excepted to the opinion of the court, as before expressed,, for the cause specified:
    The plaintiffs in error, here assigned, that the court below’ erred—
    1st. In overruling the several exceptions taken to the opinion of the court, by the defendants’ counsel, as set forth in the bill of exceptions.
    2d. In permitting the register’s certificate, and the assignment or writing,.on the back thereof, to be given in evidence.
    3d. In giving j udgment for plaintiff below.,

      Ellis and Phelan, for the plaintiffs in error.

      R. D. Thorington, contra.
    The counsel for-plaintiffs, urged that the act of 1830, made all assignments, or transfers, of the right of pre-emption, prior to the issuance of the patents, null and void. Pamphlet acts, 1830, page 167. The act under which this certificate issued to Burns, simply revived the act of 1830 — see acts of 1834, pages 28 and 29. The case of McElyea vs. Hayter, 2 Porter 148, was-believed to cover every principle involved in the case.
    If the certificate were transferable, the transfer was neither valid or sufficient. ,
    The endorsement on'the hack of the certificate, was an attempted transfer and conveyance of the land itself and ought, therefore, to have been under seal — 4 Cruise's .Dig. 33. -
   GOLDTHWAITE, J.

This is an action of trespass, instituted in Chambers Circuit court, by Thomas ’ F. No~ lan, against Gilbert and Samuel Ansley, to recover possession of a tract of land, described in the declaration. The defendants pleaded not guilty ; and on the trial, a verdict was rendered in favor of the plaintiff, who thereon had judgment.

To reverse this judgment, the plaintiffs in error, prosecute their writ, in this court.

The hill of exceptions, taken on the trial, discloses that the plaintiff below, deduced title to the land in controversy, fromthe United States in manner, following:—

1st. He produced, and read to the jury, a certificate of the receiver of public moneys, at Montgomery, for, the land; which certificate, is in these words—

“Pre-emption act. ) Receiver’s office, at M'ontg’y “ 19th June, 1834. ) April 14th, 1830.
“Received fronuLeandcr Burns, of Chambers, the sum of one hundred and ninety nine- dollars, and forty three coats, being in full payment for the south cast quarter of section No. twenty two, in township No. twenty three, of range No. twenty eight, containing 159 54-ICQ acres, at fl 25 per acre — -$199 43-100.
N. E. Benson, Receiver.”

2d. A transfer, or assignment, of the land, written on the certificate, in tírese words—

“ For value received, I, Leander Burns, of Chambers county, Alabama., do hereby assign, .transfer, and set over unto Thomas F. Nolan, of Chambers county, all my right, title, claim and demand, to the within described quarter section of land, and request that a patent may be issued to the said Thomas iV Nolan, his heirs or assigns.
Witness, my hand, this 20th April, 1830.
his
Leander M Burns, n ark.”

To the admission of these papers, as evidence of title, the defendant below, excepted; and their admission, is the only matter to he examined in this cor rt.

it is contended, that as the act of congress, of 1830, chap. 209, makes all assignments or transfers, of the right of pre-emption, prior to the issuance of the patent,, void; and as the act of 1834, chap. 54, simply revives the act of 1830, that the prohibition contained in the; first act, is yet in force, and consequently,, this attempt, to transfer the land, is inoperative.

The counsel for the plaintiff in erroi’, do not seem to-have adverted to the fact, that the restriction imposed by the act of congress, as to the transfer' of such rights,, was withdrawn by the act of congress, of 1832, chap. 9; and that at the timo of the transfer,'there was no daw making it void.

This question, however, we do not intend at this time to decide, as wc are of opinion, that it is not presented by the record. The mere reference to the caption of the receiver's certificate, cannot sufficiently inform this court, that the right of Bums, to the land described therein,, was derived under the pre-emption laws. If it was desired to present this question, for adjudication, the facts to bring the cose within its operation, should have been shewn, with precision and certainty.

The assignment of the land, to Nolan, by the instrument set out, cannot invest him with such a title as will-enable him to maintain-this action; because it is not under seal.

It is unnecessary, at this time, to determine, whether ■any conveyance of lands, not under the seal of the grantor, can pass the legal title to the grantee, it is sufficient to observe, that the instrument of conveyance set forth, if under seal, .would, in that event, be operative, solely as a release, which under the statute of uses, adopted in this state, must — to be effective as a conveyance — be by deed.

In the admission, of this instrument, in evidence, to shew title in the plaintiff, in the court- below, the Circuit court erred; and for this error, the judgment must be reversed: and as the plaintiff may have other title to-the land, if desired, the case will be remanded.

      Dig. 94, sec. 37.


author: COLLIER, C. J.

text:
    EMANUEL vs. ATWOOD.
    1. Where one makes a promissory note negotiable at banlqancf the bank becomes its purchaser, — no set off can be 'allowed against it in favor of the maker against the payee. In.such ■ a note, the maker impliedly stipulates that he will forego eve- ■ ry defence against the payee, and all intervening holders, and it would be a fraud on the. bank to set up offsets against a note, under such circumstances.
    g. Where one executed an instrument coetaneous with a promissory note, negotiable in bank, by which he bound himself to give a satisfactory endorser on the note, to enable the holder to negotiate the same to his satisfaction, — it was held, that the instrument must be taken to be-an incident to the promissory note, and equally binding-with the note, and. could not be considered a mere gratuity.
    3. And where a promissory note, accompanied by an instru- ■ ment thus made, was negotiable — in ah action on the note, by the endorsee,., it was held, that evidence of an offset against the payee, was not admissible.
    Error to the -Circuit court of Wilcox county.
    Assumpsit on- a promissory note, negotiable at bank. At the September term of the said court, eighteen hundred and thirty-three, the plaintiff complained of defendant, that theretofore, at a certain ]olace mentioned, on the-fourteenth day of March, A. D. eighteen hundred and twenty-seven, defendant made his certain promissory note, in writing, bearing date* &c. and thereby then and there promised to pay, on the tenth day of January next succeeding the date thereof, to the order of one-John Jenkins, by the name and description of John Jenkins,. Esquire, fourteen hundred and sixty-six dollars and four cents, payable and ne~ gotiable at either of the banks in Mobile, for value received; and then and there delivered the said promissory note to the said John Jenkins, and the said John Jenkins to whom, or to whose order the payment of the said sum of money, mentioned in the said note, was thereby to be made, afterwards, and before the payment of the said sum of money mentioned in the said note, or any part thereof, and before the time appointed by the said note for the payment thereof, to-wit, on the day and year aforesaid, at the county aforesaid, endorsed the said note, and by that endorsement ordered and appointed the contents of the said note to be paid to the said plaintiff, and then and there delivered the said note so endorsed to the said plaintiff; of all of which said several premises, the said defendant, afterwards, viz:' on the same day and year aforesaid, at die county aforesaid, had notice; by reason of which said several promises, and by force of the sta*-tute in such case made and provided, he the said defendant, then and there became liable to pay to the said plaintiff the said sum of money, mentione/j. m the said note, according to the tenor and effect of the said note, and of the said endorsement, so thereon made as aforesaid; and being so liable, he tho said defendant, in consideration thereof, afterwards, to wit, on the same day and year- aforesaid, at the county aforesaid, undertook, and then and there faithfully promised to pay to the said plaintiff, the said sum of mamey in the said promissory note mentioned and specified, according to the tenor and effect of the said promissory note, and of the said endorsement so thereon made as aforesaid. And the said plaintiff averred, that after-wards, to wit, on the twelfth day of January, eighteen hundred and twenty-eight, at the Bank of Mobile, to wit, in tho county aforesaid, and one of the banks in Mobile aforesaid, at the time the said note so endorsed as aforesaid, became due and payable, the said promissory note so endorsed as aforesaid, was duly pro-•rented and shewn at the said Bank of Mobile for payment thereof, and payment of the said.sum of money therein specified was then and there duly required,, according to the tenor and effect of the said promissory note, and of the said endorsement so-thereon mad© as aforesaid; but that neither the said, defendant nor any other person or persons on behalf of said defendant, did or would at the said time, when the -said promissory note so endorsed as aforesaid, was so presented and shewn for payment as aforesaid, or- at any time before or afterwards, pay the said sum of money therein specified, or any part thereof, but wholly neglected and refused so to d©, and still did neglect and refuse so to do, although often requested. To the damage, &c.
    To the declaration defendant plead, non assumpsit;, payment and set-off.
    And at the Spring term, eighteen hundred and thirty-five, came a jury, who upon their oaths said, they found a. verdict for the plaintiff, and assessed hi®, damages at twenty-three hundred and forty-five dollars and seventy-one cents :■ It was therefox-e considered by tho court, that the plaintiff recover of defendant the said sum so assessed by the jury, for his damages by him sustained, by reason of the premises, and also the costs by him expended, &c.
    Whereupon, a motion was made by defendant for a new trial, and the court ordered a new trial on defendant’s paying the costs of the action, as a condition precedent, within three months.
    And at Spring term, eighteen hundred and thirty-seven, there came a, juiy of good and lawful men, who were elected, tried aixd sworn, well and truly to try the issue, and on their oaths they said, they found a verdict for the defendant: It was therefore considered by the couit, that the defendant should go without day and recover of the plaintiff the costs by him about his defence in that behalf expended, for which, execution might issue, &c..

      'The hill of exceptions stated, that on the trial, the ^plaintiff offered in. evidence a note in the following ■words and figures, to wit, “Prarie Bluff, March 14,1837. $1466 Q4-1QG. On the tenth day of January next, I promise to pay to the order of John Jenkins, Esquire, fourteen hundred and sixty-six dollars and four cents, payable and negotiable at either of the banks in Mobile, for Ualue received. Henry S, Atwood — endorsed, .John Jenkins.”
    To which note was appended a statement |n writing, -admitted to be genuine, and taken -as proved in the following words and figures: Whereas, I have this day given -to Mr, John Jenkins, my note for fourteen hundred -and sixty-six dollars and four cents, due 10th January next; -also one for seven hundred dollars, due same time. I do hereby bind myself unto the said John Jenkins, to give him a satisfactory endorser upon said note, living and residing in Mobile, provided he cannot negotiate ■said notes to answer his purpose without. March 14, 1837. Henry S. Atwood.” — And produced and proved ■the protest of said note, for non payment, when due, and. While the plaintiff was holder, and there rested his «case..
    The defendant then proposed to offer in evidence, a note in the following words and figures, to wit: “ $3036 38-100. Dale, Wilcox county, June 1st, 1826. On the first day of January next, I promise to pay to the order of Mr. John Jenkins, three thousand and thirty-six dollars, thirty-eight cents, payable and negotiable at the Bank of Mobile, for value received. John B. Bass — endorsed, John Jenkins;” and to prove that he was the person to whom the note was endorsed, and that the note was not paid at maturity, and that demandwas made and notice given to John Jenkins, the endorser: to the admission of all which evidence, the plaintiff objected; but the objections were overruled by the court, and said notice and evidence of demand, and notice given, went to the jury, To which decision of the court, overruling his objections to said offset, the plaintiff excepted, &c„

      The plaintiff in error now assigned—
    1st. That the court erred in admitting the offset objected to, as'stated in the bill of exceptions.
    2d. The court erred in making the decision excepted

      J. B. Clarke, for the plaintiff in error.

      Phillips 3f Edwards, contra.
    Clarks, for the plaintiff, contended, that no offset of a debt against the payee of a promissory note, could be plead to a note made payable in bank, after the same was negotiated by the payee; and that even if such offset could be plead against an endorsee, it was questionable, whether it could, to the note on which the present action was founded, under the evidence; and cited Man-deville vs. the Union Bank of Georgetown — 9 Crunch, 9; Fellows vs. Carpenter — Kirby, -364. The agreement appended, operated as a letter of credit — a guaranty of payment to the endorsee, and it was manifest that the parties also intended that the note should be negotiated. Coxe’s Big. 97, s/108-9; 3 Co wen’s R. 284; 1 Johns. R. 319; 5 Am. Big. 365; 2 Rand. R. 247.
   COLLIER, C. J.

The plaintiff in error brought as-sumpsit against the defendant, in the Circuit court of Wilcox, and declared as indorsee of John Jenkins, on a promissory note, by which the defendant, on the 14th March, 1827, promised to pay to Jenkins fourteen hundred and sixty-six 4-100 dollars, on the tenth day of January thereafter, “payable and negotiable at either of the banks in Mobile.” The pleas were non assumpsit payment, and set-off. It appears from a bill of exceptions, taken at the trial, that the plaintiff having read to the jury his note and indorsement, with a protest for non-payment, — also proved and read an agreement thereto appended, in these words: “ Whereas, I have this day given to Mr. John Jenkins, my note for fourteen hundred and sixty-six dollars and 04 cents, due 10th Jarra-sary next; also, one for seven hundred dollars, due same Sime. I do hereby hind myself unto the said John Jenkins, to give him a satisfactory indorser upon said notes, living and residing in Mobile, provided he cannot negotiate said notes to answer his purpose without. March 14,1827 .”

The defendant also offered in evidence, by way of set-off, a promissory note in these words: “ $3036 38-100. Dale, Wilcox eounty, June 1st, 1826. On the first day of January next, I promise to pay to the order of Mr. John Jenkins, three thousand and thirty-six dollars, 38 cents, payable and negotiable at the Bank of Mobile, for value received.” (Signed,) “John B. Bass,” endorsed, “John Jenkins,” and proposed to shew that he was the person to whom the note was endorsed— that it was not paid at maturity' — and that a demand, was made, and notice of non-payment given to the in-dorser. To the admission of ail this evidence, the plaintiff objected; hut his objection being overruled, the note, with the proof of demand of Bass, and notice of nonpayment to Jenkins, was allowed to go to the jury. Whereupon the plaintiff excepted, and verdict and judgment being rendered against him, he has sued out a writ of error to this court.

Apart from statute, we consider it clear, that where one malees a promissory note negotiable at bank, and the hank becomes its purchaser, no set-off can he allowed against it, in favor of the maker against the payee. By thus agreeing that the holder may pass the property in the paper to the hank, the maker impliedly stipulates that he will forego, every defence against the payee and intervening holders, should it be thus negotiated; and is equivalent to saying to the hank, “if you will purchase my note, 1 will honor it at maturity.” But it is needless to consider this question at greater length, for it was expressly decided in Mandeville vs. Union Bank, that it would he a fraud on the hank, to set up off-sets against a note, under such circumstances growing out of transactions between the parties ; that the off-sets were waived, and could not, after the note has been discounted, be again set up.

Let us inquire whether the case at bar comes within the influence of the principle we have stated. The defendant makes his potes in favor of Jenkins, payable and negotiable at either of the banks in Mobile, and at the same time agrees with him in writing to furnish a satisfactory indorser upon each of the notes, residing in that city, if he cannot negotiate them so as to answer his purpose .without. This agreement does not contemplate a negotiation of the notes with the banks only, but with any one and in any way that may best sub-serve Jenkins’ purpose. And it is not merely an implied, but an express assent that they may be passed off in the course of business, and if necessary to effect that object, an undertaking to furnish a suitable indorser. Placing this agreement out of view, and it would not be insisted that had the bank become the proprietor of-the note in question, an offset was allowable. Taking the note in connection .yvith the agreement, and the case is considered quite as strong against the defendant. It was clearly not the expectation of the .one party, or the intention of the other, that the notes should remain in the hands of the.payee until maturity — such an idea is opposed to the defendants undertaking, which never would have been given but from the clear understanding of the parties, that the notes were to be used for the purposes of trade, even before maturity. In fact the stipulation of the defendant furnishes conclusive proof that nothing else whs designed, and amounts to a waiver, in advance of all offsets against either of the notes in the hands of á bona fide indorsee.

The notes and agreement of the defendant being simultaneously made, the latter must be taken to be an incident to the former, and equally - binding with them; and cannot in the absence of proof be considered as merely gratuitous. Our opinions are, that the offset offered by the defendant was not admissible, and that the court erred in allowing his evidence to go to the jury.

The judgment is reversed and the cause remanded.

GOLBTHWAITE, J — Not sitting.

         9 Cranch. R. 9.


author: PER CURIAM.

text:
    PERINE et. al. vs. BABCOCK.
    1. Where one of the parties to a judgment in the court below, dies before the issuance of a writ of error, it is competent for his survivors, to suggest the death in their writ of error, when the suggestion of the death requires no -new parties to be made, without application to the Supreme court; and if the death is improperly suggested in the writ, it, can always be under the control of the court, on a motion, supported by affidavit, so as to prevent any injury to the parties interested.
    Error to the Circuit court of Dallas county.
    In this case, Thomas Morong, one of, the plaintiffs below, having departed this life, since the determination of the suit below, his survivors sued out the present writ of error, stating therein, the death of said Thomas Mo-rong :

      A motion was now made, by defendant, to dismiss the said writ.
    Clarke, for the plaintiffs in error.
    Whereupon the court delivered the following opinion, on said motion.
   PER CURIAM.

The plaintiffs in error, and one Tilomas Morong, were the plaintiffs in execution, in .the-court below, and Morong having departed this life, after the determination of the suit, his survivors sued out the present writ of error, stating therein the death of Mo-rong.

A motion is now made, on behalf of the defendant in error, to dismiss the writ; and the case of Sewall vs. Bates, is relied on, in support of the motion.

In cases which are not within the terms of the statute, providing the mode of .sucing out writs of error, we conceive it to be our duty, so to mould the process, as to produce -the least inconvenience to parties; and unless come prejudice will result to parties, from such a course, it is always preferable that the writ should issue from the court helow, as delay must intervene in making the application to this court, for the writ of error.

In the present case, it is not seen how any inconvenience can arise, from permitting co-plaintiffs to suggest the death of one who was joined with them in interest, In the cause, onA when the suggestion of the death requires no new)pariies to be-made, in such a case it is the most convenient practice, to permit the caseto issue without application to this court; and .if the death is improperly (.suggested in the writ, it can always be under the control of the court, on a motion, supported by affidavit, so us to prevent any injury to the parties

If the writ issued in this case, was now dismissed, another would be awarded from this court, on the same facts having been suggestedbht this course we conceive to be unnecessary. The motion is denied.

      3 Stewart 199.

      Dig. 256, sec. 13.


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    THOMSON, Judge, &c. use, vs. SEARCY and FEARN.
    1. In debt on an'administration bond, it is no valid objection to the declaration, that it does not disclose that the assets in the hands of the administrator, .were chargeable with the demand sued on, or that they were of value sufficient to discharge it, after the payment of all claims.entitledto priority*

      2. Nor is it a good objection to the declaration, that the names of all the plaintiifs, in a judgment recovered against the administrator, are not set forth. Semble, that the former judgment is not the foundation of the action on the bond, and need only be recited as a fact, the existence of which, is indispensable to enable the plaintiff to recover.
    3. According to the literal import of an administration bond, it is forfeited, when the administrator wastes the goods--of the intestate, to the prejudice of a creditor. Yet no one can be regarded as a creditor for the purpose of subjecting the administrator to a personal accountability, who has not first made out a title, by recovering a judgment to j)e levied de bonis intestatis. Therefore, also
    4. An action can be well maintained upon the' administration bond against the sureties, after the plaintiff’s claim has been ascertained by judgment as aforesaid, upon an allegation, that the administrator has wasted more than an equal amount of the goods and chattels of the intestate: and that, also, before a devastavit is fixed upon the administrator, by a judgment recovered against him personally. .
    5. [The same rale 'prevails at this time in Yirginia, Kentucky, New York, Connecticut and Massachusetts; and in Indiana, on the bond required of a justice of the peace.]
    g. [The rule also prevails in the King’s Bench and common pleas, where the executor or administrator is alone sought t(v be charged.]
    7. [In Ohio and South Carolina, a devastavit must be first ascertained by judgment previously obtained — though in Ohio an action may be maintained against the surety, upon the bond of a guardian without first obtaining judgment against, the principal..]

      S. But the sureties to an administration bond cannot be charged beyond the amount of assets of the intestate, which came to the hands of the administrator, and therefore in an action on the bond against the sureties, the jury must net only find the issue for the plaintiff, but also the extent to which the administrator has wasted the assets; and
    9, Though the administrator, when sued aleñe, may i.c charged for a constructive waste, yet to authorme a recovery against his sureties, an actual devastavit musí bo shown.
    Error to the Circuit court of Madison county.
    Debt, on administration bond. At the kpring term, eighteen hundred and thirty-seven of said court, John C. Thomson, judge of the County court of the county aforesaid, who succeeded Camuel Chapman, former judge of said court, and who sued for the use of John Thurman, — declared against Jesse Searcy and Thomas Fearn, for that, the said Jesse Searcy, theretofore, to wit, on the twelfth day of February, eighteen hundred and twenty-two, in said county, was duly appointed administrator of all and singular the goods and chattels, rights and credits of one Charles Burrus, then lately deceased, intestate; whereupon, the said Jesse, and the said Thomas Fearn, (with a certain Henry Cook, who was not sued in the action,) made their certain writing obligatory, of said date, in said' county, signed With their names, sealed with their seals, a copy of which was' shown (the original being on file in the office of the clerk of the County court of said county, and not in the plaintiff’s power to produce,) and therein and thereby acknowledged themselves to be held and firmly bound to said Samuel Chapman, judge of the county court of Madison county, State of Alabama, and his successors in office, in the penal sum of two hundred thousand dollars; for which payment, well and truly to be-made, said defendants, and said Cook, bound themselves, and each of them, their heirs, &c. — which said writing obligatory was subject to a certain condition there under written: That, whereas the said Jesse Searcy had been duly appointed administrator of the estate of Charles jBurrus, deceased, if the said Jesse Searcy should well and truly perform all the duties which then were, or by law might be required of him, as such administrator, then the said obligation to be void, else to remain in full force and virtue..
    And’the plaintiff averred that-the said Samuel Chapman was at the time of executing said writing obligatory, judge of the County court of Madison county aforesaid, and that ho did, on a certain day resign the office of judge of the said County court; whereupon, the said John C. Thomson, was, to wit, on the day and year last aforesaid duly appointed in his stead, and that the said John C. Thomson was, at the time of the institution of this suit, and had constantly continued to be, up to that time, the -judge of the County court of said county, and the successor of the said Samuel Chapman, as judge of said County court.
    And the plaintiff averred, that after said defendants had executed their said bond, the said John Thurman, on the seventh day cf April, eighteen hundred and twenty-nine, in the Circuit court of said- county of Madison, caused a suit to be brought in the names of Isaac .Lane, ana others, for his, the said John Thurman’s use, against the said Jesse Searcy as administrator of the said Charles Sumís; and on the twentieth day of November, eighteen hundred and twenty-nine, recovered a judgment, in the names of said Isaac Lane, and others, for the use of him, the said John Thurman, in the said Circuit court, against said Jesse Searcy, administrator as aforesaid, for the sum of seventeen hundred and eighty dollars and seventy-five cents, debt, three hundred and forty-six dollars and twenty-five cents damages, besides costs; to be levied of the goods and chattels, which were of the said Charles Burras, in the hands of the said Jesse Searcy to be administered.
    And the plaintiff averred, that said judgment remained in said court, entirely unreversed and unsatisfied, and that divers goods and chattels of the said Charles Burrus came into possession of the said Jesse. Searcy, as administrator aforesaid, to be administered j of great value, to wit, of the value of ten thousand dollars, to wit, in the said county, — more than sufficient to satisfy said judgment. Yet, the said Jesse did not well and truly administer the same, and did not pay said judgment, or any part thereof, with the avails of the goods and chattels last aforesaid, or otherwise, but wasted the same and converted them to his own use, to wit, on the first day of December eighteen hundred and twenty-nine, in the county aforesaid.
    And the plaintiff averred, that said Jesse Searcy did not well and truly perform all the duties which were by law required of him, as administrator aforesaid, but violated said condition as above set forth. By means of which said several premises, the plaintiff had sustained damages to a large amount, and by means of which premises also the said writing obligatory became forfeited; and thereby an action had accrued to the said plaintiff, to demand of and from the said defendants, the sum of two hundred thousand dollars above demanded. Yet, the said defendants had not, nor had said Henry Cook, paid said plaintiff said sum of money, above demanded, or any part thereof, although often requested, hut the same to pay had failed, &c.
    And the said defendants, defended the wrong and injury, when, &c. and said that the said declaration and the matters therein contained, in manner and form as the same were stated and set forth, were not sufficient in law for the plaintiff to have or maintain his aforesaid action thereof against said defendants, and that said defendants were not bound by the law of the land to answer the same, which they were ready to verify ; wherefore, for want of a sufficient declaration in that bcluilf, the defendants prayed judgment, and the plaintiff might bo barred from having or maintaining his aforesaid action theieof against them, &c.
    And the plaintiff joined in demurrer.
    And afterwards, to wit, at the Fall term of said court of the samo year, came the parties, and thereupon the defendant’s demurrer to the plaintiff’s declaration, being argued and fully understood: It was considered by the court, that the plaintiff take nothing, by his plaint, and that the defendants go thence and recover against the plaintiff their costs by them in and about their defence in that behalf expended, &c. From this judgment there was a writ of error,
    And a.fc this term the plaintiff' assigned the following errors: to wit :
    That the court erred in sustaining the demurrer of the defendants to the plaintiff’s declaration, and
    That judgment below should have been rendered in favor of plaintiff against defendants.

      J. TV. Me Clung, for plaintiff in error.

      Hopkins Parsons, contra.
   COLLIER, C. J.

The plaintiff brought an action of debt, in the Circuit court of Madison, against the defendants. By the record, it is shewn that Jesse Searcy was in February, 1822, in that county, duly appointed administrator of the goods and chattels, &e. of Charles Burras, then lately deceased, intestate, and that he executed an administration bond, in legal form, with Thomas Fearn and Henry Cook as his sureties, (the latter of whom is not here sued.)

The plaintiff then avers, that on the seventh day of April, eighteen hundred and twenty-cine, John Thurman, for whose benefit this action is brought, caused a suit to be instituted in the name of Isaac I jane and others, for his use, against Jesse Searcy, as administrator of Charles Burras deceased, and on the 20th November, of the same year, recovered a judgment according to the demand of the writ, for the sum of seventeen hundred and eighty 75-100 dollars for the debt, three hundred and forty-six 25-ICO dollars for damages, besides their costs, to be levied do bonis inicsiatis in the hands of the administrator, to be administered. R is also averred, that the judgment thus recovered, remains entirely un-reversed and unsatisfied, and that divers goods and chattels, &c. carne into the possession of Icese Cearcy to be administered, to wit, of the value of ten thousand dollars — more than sufficient to satisfy the judgment ahbve recited. Yet the administrator did not pay and satisfy that judgment, with the avails thereof, but wasted the same and converted them into his own use, to wit, on the-clay of December, eighteen hundred and twenty-nine, at dec. h is then averred, in due form, that the administrator did not well and truly perform all the duties required of lúm, &c. Ey means of all which, the plaintiff, for the use, &c. hath sustained damages, &c. and by means of which, the bond of the defendants has become forfeited, &c.

To the declaration, the defendants demurred, and the demurrer being sustained, and judgment thereon rendered against the plaintiff, a writ of error has been prosecuted to this court for its reversal.

It is no valid objection to the declaration, that it does not disclose, that the assets which came to the possession of the administrator, were justly chargeable with. the demand in controversy, or that they were of value sufficient to discharge it, after the payment of all claims entitled to priority. Let it be conceded ex gratia argu-menti, that there are debts, which the right to have satisfied, imposes a paramount lien upon the estate of the intestate, as against the creditor now complaining, yet the disclosure of such a fact if allowable, must be made in a plea. It is entirely sufficient for the plaintiff to set forth such a case, as if proved, would entitle him to recover, without negativing in advance, matters which rest more particularly within the defendants knowledge. It is not for the plaintiff to anticipate every affirmation that may be made in the defence, and interpose in his declaration a formal denial. Such a course of pleading would he, not only objectionable, as calculated to overcharge the record, hut in itself eminently untechnical.

Nor can the legal sufficiency of the declaration he successfully assailed, for the omission to disclose the names of the “others” who with Isaac Lane, for the use of Thurman, recovered the judgment against Searcy. It is more than possible that their name's do not appear in the record of the suit — if they do not, the recovery is not void, and the record would he admissible evidence. But even if 'the “ others” are shewn eo nomine by the judgment, yet the declaration would be sufficiently descriptive of • the case; that judgment is not the foundation of this action, hut is only recited as a fact, the existence of which is indispensable to the plaintiff’s right to recover, and according to a correct practice, it is well described, when so referred to, as to he identified with certainty. That this has been done, we think clear, and consider it no objection to the maintenance of the present action, that it is brought for the use of the party, who was the beneficial plaintiff in the judgment.

This brings us to consider the remaining, and most material exception taken by the defendants counsel to the declaration, — Can an action be brought upon the administration bond against the sureties, after the creditors claim has been ascertained by judgment, upon the allegation of its non-payment, and that the administrator has wasted more than an equal amount of the goods and chattels, &c. of the intestate, unless a devastavit has been first fixed upon the administrator, by a judgment recovered against him personally.

In order to a decision of this question, reference must be had to the condition of the bond, that wc may determine what arc the stipulations of the obligors. From the recital of the bond in the'declaration, we learn that it was taken in obedience to the act of June, eighteen hundred and twenty-one, — and its condition must be as follows: “ The condition of the above obligation is such, that whereas the above bounden Jesse Searcy, has been duly appointed administrator of the estate of Charles Burrus, deceased. Now if the said Jesse Searcy shall well and truly perform ail the duties which are or may be, by law required of him, as such administrator, then, the ab ove obligation tobe void, otherwise to remain i n full force.” The obligation imposed upon the principal, obliged him to a performance of the duties required by the laws then extant, or such as might he thereafter enacted. The 'Undertaking of the sureties is of a corresponding extent, viz: that the administrator shall faithfully perform the condition of his bond, and if he fails, then, they will answer for his default The breach alleged is the non-payment of a debt, recovered against the administrator de bonis intestatis, with which it is insisted he became personally chargeable; because he wasted the assets of the estate, to a greater amount in value. The sufficiency of this breach must depend upon the nature and extent of the duties which the law devolves upon an administrator. Without therefore entering at large upon an inquiry into his office, we will proceed to shew that it is a paramount duty of an administrator, honestly to appropriate the assets ■ which come to Ms possession, to the debts of the intestate. The twenty-seventh section of the act of eighteen hundred and three, after enacting that personal estate not bequeathed shall descend to, and be distributed among heirs in the same manner as lands descend by that act, contains a proviso as follows: “Provided, that the goods and chattels, or personal estate of any person deceased, whether testator or intestate shall stand chargeable with the payment of all the just debts and funeral expenses of the deceased, and the charges of settling the said estate, &c.” We need not inquire what an administrator was required to do by the common law, for here is a positive declaration, that the personal estate of the intestate that comes to his hands, must be first applied to the discharge of his debts; and this is a duty coming within the express terms of the condition of the administration bond, and cannot, it would seem, be neglected without causing its forfeiture.

Conceding that where the assets are ample, the nonpayment of a debt to which the estate of the intestate was liable, would be a literal breach of the bond, it is argued for the defendant, that no action will lie against the sureties until it is ascertained by verdict and judgment, that the administrator had wasted the goods and chattels, &c. that came to his hands. That such a conclusion resulted from the nature of the common law remedy, by which a devastavit was fixed, as well as fr'om the consideration, that the imputation of mismanagement of assets by the administrator, was a charge quasi criminal.

Anciently in England, if the sheriff returned nulla bona and a devastavit to a fieri facias de bonis t'estatoris aut intestatis, sued out on a judgment against an executor or administrator, it was sometimes the practice to sue out a capias ad satisfaciendum or a fieri facias de bo-nis propriis, against the executor or administrator. But the better and more frequent method was, to sue out a scire facias, and obtain an award of execution before suing out the fieri facias de bonis propriis. The most usual practice however, ivas upon the return of nulla bo-na to sue out a special fieri fiadas de bonis iestatoris aui iniestaiis, with a clause therein ot si Ubi constara potcrii, that the goods &c. had been wasted, then to levy de bo-nis propriis. And tills seems to have been the practice of the King’s Bench, until the time of Charles the First: hut in the 'common pleas, a practice prevailed from an early day upon the suggestion of a devastavit in a special writ of .fieri' facias, to direct the sheriff to inquire by a jury, whether the executor or administrator had wasted the'goodo, and if the jury found afliimatively, then a scire fiadas was sued out against the executor or administrator, and unless he made a good defence thereto, execution was awarded de bonis propriis. It after-wards became the practice of both courts, for the sahe of expedition, to incorporate the jieñ fiadas inquiry into one writ, thence called a sdre fieri inquiry. This writ recites the fit. fa. de bonis iestatoris emt intestada, the return of mdia bona; and then suggesting that the executor or administrator had converted the goods, &c. to the value of the debt and damages recovered, commands the sheriff to'levy the debt and damages-of the goods &e. of the testator or intestate, in the hands of the executor or administrator, if they could be levied thereof, but if it should appear to him, by the inquisition of a jury, that the executor or administrator had wasted the goods, &c., then to summon him to appear, &c But the most usual mode of proceeding both in the King’s Bench and common pleas, is by an action of debt suggesting a devasia-vit:

And the correct course of procedure, where the executor or administrator is alone sought to be charged,' is that we have mentioned as most usual in England at this day. Yet we cannot conceive why a creditor should be forced to pursue this remedy, before he is allowed to prosecute an action upon the statute obligation. The latter pan of the thirteenth section of the act of June, eighteen hundred and twenty-one, after giving the form of an administration bond, proceeds: “ Such bond shall not become void on the first recovery, and may be put in suit, and prosecuted from time, to time, against all or any one or moro of the obligors, in the name and at the costs of any person or persons, injured by a breach thereof, until the whole penalty shall be recovered thereon.” We have already shewn, that according to the literal import of tiie bond, it is forfeited whenever the administrator wastes the goods &(5. of the intestate,'to the prejudice of a creditor. Yet no one (however just his demand,) can be regarded as a creditor, for the purpose of subjecting the administrator to a personal accountability, who has not first made out a title, by recovering a judgment to be levied da bonds inlestalis, — Feull vs. Judge of Monroe County court; Burnett vs. Harwell; Eaton vs. Benefield; Robbins, judge, &c. vs. Hayward; —to have .a portion of the assets appropriated to his benefit. Bat wc can discover nothing cither in reason or .legal principle, requiring any further, proceeding against-the administrator, before the bond is suable against any or all its obligors.

Nor can we consider that there is -any force in the objection, that the charge oí a devastavit against the administrator, is an imputation of a criminal nature. The action of debt upon the bcr_d, strictly speaking, is ex contractu, though.in order to a recovery, it may be necessary to prove facts which the common law considered sufficient to shew, that tlie administrator was guilty of a tort. Yet it does not necessarily follow from thence, that if the administrator be liable, that he is reprehensible in morals; he may have incurred a responsibility under an ignorance of his duties. But grant that he has been criminally faithless in the performance of his trust, and no objection is furnished to the maintenance of the action. How often are. breaches- of contract shewn by proof of such facts, as evidence an entire destitution of moral principle, and frequently áccompanied with force; yet in such cases it has never been questioned, that the breach cannot be redressed in an action ex contráctil, in consequence of the defendant’s great culpability. For what have the sureties undertaken, if not for the hones! discharge of the duties of the administrator ? And what objection is there in principle, to a creditor assigning as a breach, that the administrator has not done that for which his sureties stipulated ? The declaration in the case at bar does nothing more — it charges a wrong upon the principal, and calls upon the sureties to repair the injury it has occasioned, according to their stipulations.

Thus far have we examined the arguments, upon what seems to us to be correct legal principle, we will now. examine it with reference to authority.

In Braxton, executor, &c. vs. Winslow, et. al, the defendants in error sued an action of debt against the sureties, in an executor’s. bond, to subject them to the payment of ú bill of exchange, of which the testator of their principal, was the drawer. Oyer of the bond and condition was craved in the court below, and conditions performed pleaded. The replication traversed the plea; and charged a breach, in the executor’s not having administered according to law, and having wasted the assets in the payment of debts of an inferior, dignity, after the notice of protest for .non-payment o'f. the bill of 'exchange. Two questions were raised'in the Court of Appeals, — First, whether an action could be maintained at all for the benefit of a creditor upon an . executor’s bond, — Second, whether the action could be maintained before'a judgment first recovered by -the creditor against the representatives of the debtor, and an execution and return of nulla bona thereon.

The court considered it clear, that the action was maintainable for the benefit of a creditor.- And in respect to the second question, after having determined that the bond was prematurely put in suit, because no judgment 'had been recovered upon the bill of exchange, the court go farther and decide, that a judgment' creditor could not have the bond sued against the sureties, unless a devastavit was first fixed, upon the executor by a suit prosecuted against him on his judgment do bonij in-testatis. And this conclusion was attained from a course of reasoning as follows: That the suggestion of a de-vastavit rnay be likened to a criminal prosecution, and that an executor shall not he presumed guilty of it, until it is found against him hy the verdict of a jury — that though the statute of Yirginia.did not inhibit the creditor from going against the sureties in the first instance, yet it was an established principle of construction, that where a statute has given a new remedy, without pointing out the mode in which it is to be attained, the rules of the common law, and the practice of the courts, founded upon the reason of the thing, shall he pursued.

That the common law may be invoked, to .aid in the interpretation of a statute^ is a reasonable and just rule; but where a statute is plain and unambiguous in its terms, there is no room for the operation of the rule. If it is sought to charge an executor at common law, we liave already said, that the appropriate remedy is, an action of debt, suggesting a devastavit: but this was not the character of' the proceedings in that case. The' statute of Virginia, like our own, declares, in -express words, that the bond may be put in suit, for the benefit of creditors, &c. And the act itself being free fróm ambiguity, in considering it, the mind is naturally Ifed to the enquiry, what obligation was 'imposed by the bond, upon the principal and his sureties, and what amounted to a breach of its condition. - By thus reasoning, the conclusion would have been attained, that to maintain an action upon the bond, it was only necessary to shew a judgment, de bonis testatoris, and a waste of the assets by the'executor. The statute gave a remedy upon the bond, and the creditor, who had recovered his judgment against the executor, might put it in suit, or adopt such proceedings as were before in use, and unrepeated by the act. And the statute being silent as to the particular remedy it afforded, it was proper to refer to the-common law, to ascertain what was the appropriate action upon such a 'liability. But it is indeed difficult to conceive, what legal conclusion resulted, from a consideration, of the course to be pursued at- common law, in order to fix a devastavit, upon the executor.

This reasoning, recondite and farfetched as it may seem ; ■ however inconclusive it has, at different times, been regarded by the subordinate courts, has, whenever the same- question has arisen, been approved by the Virginia court of Appeals. In Call vs. Ruffin, it was recognized; and in Gordon's adm'rs vs. the Justices of Frederick. The case' of Braxton, ex'r, &c. vs. Winslow, et. al. was received, and reaffirmed; the court merely amplifying the argument employed by the bench in the latter case, and offering as an additional reason, why a devastavit, should be established, in a separate suit against the administrator, that by a law of that state, no security-for an executor or administrator, was chargeable beyond the assets of the testator or intestate, on account of any omission or mistake in pleading, by the executor or administrator. And it wag, therefore, proper-that the amount of the assets, wasted, should be ascertained by a verdict, and, judgment, before the sureties were called on. We cannot conceive-why this latter consideration should have had any influence; for the extent of the liability of the sureties, could have-been as readily ascertained, in ■ an action on the bond, as any other material' fact. - ’ ' ■ .

Since t-ho- decision/of Gordon's adm'rs vs. the Justices of Frederick; it may be remarked, tire law of Virginia' lias been changed, by a statute enacted in 1814, which dispenses with the intermediate suit, to fix a devastavit

In 1829, an act was passed, by the General Assembly of Kentucky, authorising the suggestion of a devastavit, and the assignment of other breaches, in an action on the administration bond. Previous to that time, it was held in that state,, that it was necessary to bring a second suit, and convict the executor or administrator of a devastavit', before the sureties could be sued, on the bond — Clarke vs. the Commonwealth, -&c.

So also, in Ohio, it has been determined, that the executor or administrator, must first be found guilty of a devastavit, before the bond can b® sued against the sureties. And for the reasons on which the court founds its opinion in. Gordon’s adm’rs vs. the Justices of Frederick,—see Gtewurt' Cs Chapliae vs..the Treasurer of Cham-pa] gne county, use &c.,

In Call vs. Ruffin, it was decided, that, a guardian’s bond, stood hi a. different predicament, from an execu-ior’s or aclmmisivátor’s, and that it was'competent to put it In suit against the sureties,, without having first obtained a judgment against the principal. And in Moore vs. Waller's heirs, it was held, that the statute, which gave an action on the administration bond, was merely cumulative, and did not oust the Chancellor of his jurisdiction in such cases; and in chancery, no previous suit wan necessary, to ascertain the extent of the executor’s liability, before a resort could- be had to the sureties, fio in Meads et. al. vs. Brooking, it was determined that after- a judgment- against an executor or administrator, as such, a fieri f acias, and return of nulla bona, an action against him. alone, on, his administration. bond, could always have been maintained, without any previous suit, suggesting a devastavit. Thebe three. cases do not appear to us to harmonize with the cases', of Braxton adm’r, &c. vs. Winslow, et. al. and Clarke vs. Commonwealth, &c. The conversion of the estate of the ward, by his guardian, is quite as much a tori, as the wasting of .the assets, by an administrator; and if, in the latter case, it he necessary to fix a personal responsibility, before the sureties can he called on to make good the loss, it is difficult to conjecture a reason, why the same rule should not obtain in the former case. So, if at law, the intermediate suit cannot be dispensed with, it would seem that equity could not hold it unnecessary, and o "hex to a party injured, a remedy against the sureties in the bond. That equity might give an ancillary remedy, or net preventively, by inhibiting the removal of property, until rights to be sought against the-sureties, could he litigated and determined, would seem reasonable — but that, that tribunal can exercise plenary jurisdiction in such a case, (the law forum, being open, to administer redress,) may well be questioned. And the case of Meade et. al. vs. Brooking, greatly weakens the authority Of Braxton, adm’r. vs. Winslow, et. al. by deciding that it is competent to try the question of a de-vastavit, hi a suit on the bond, against, the administrator. If it be regular to determine that fact, where the principal is a party, there can be no conceivable reason, why it may not also he litigated, where the sureties are made defendants, unless there be potency in the arguments, founded upon the statute, that the sureties are to be liable, only to the extent of the assets received by the administrator, and that a devastate being a,tort, is not triable against the sureties, on their contract.

Again: at common law, if an executor committed a devastavit, and died, his ekecutor was not chargeable for the .waste, upon the principle, that it was a personal tort, which died with the person.

If it be necessary, then,- to convict the executor or administrator, of a devastavit, before suing on the bond, his death would certainly deprive the party, who had a right to complain of it, of a remedy, at least at law. in Kentucky they obviate the difficulty by allowing the sureties to be sued in equity, without having successful-, ly prosecuted the intermediate suit, against the administrator. We have already questioned the general jurisdiction -of that court, over the subject. .

If the administrator has used the assets, so as to- make a profit to himself, there is no doubt, but his personal representatives may be proceeded, against, in equit]^— Price vs. Morgan. Yet,' ‘it may well be questioned, whether, if the devastavit be the result of negligence or inattention, on the part of the-executor, relief could be had in any forum, against the representative of an executor or administrator. The consideration that the sureties would not be liable, at least at law, upon the administration bond, if their principal dies before he is charged, is certainly entitled to weight, in determining whether the intermediate suit is essential.- ■

But we are not left to disprove, by the force of argument, or indirect authority, the necessity of a second suit, in order to fix the devastavit, before proceeding against the sureties on their bond: ■ For decisions to the point, equal in respectability and numbers, to those cited, are before us. ■ • '

In the case of the People vs. Dunlap , an action of debt was brought, against the defendant, as a surety in an administration’bond, suggesting a devastavit, by the administratrix. The court determined, that the nonpayment of a judgment, obtained against the adminis-tratrix, might be assigned, as a breach of. the condition of the bond. In. the opinion, this language is employed: “What is a forfeiture of the bond? Most certainly, an unfaithful administration-of' the estate-of the intestate,. is not applying the goods, chattels, and credits of the deceased, to the payment of his debts.” Again: “ A conversion of the effects of the intestate, to the private use of the administrator, leaving the debts unpaid, is a violation of the trust reposed in the administrator, and a breach of the condition of the bond, in not administering the goods, chattels, and credits, according' to latv.”

This is an authority to shew, that the criterion by which the liability of the sureties is ascertained, is the condition of their bond, without regard to the proceeding at common law, to subject their principa], do bonis-propriis.

So in Willey vs. Paulk, el. al. debt was brought on a probate bond, ■ against' the defendants, as the sureties of an executor. The court held, that though the defendants were not parties to the suit, against the executor, yet they were privies in contract; and that the case of principal and surety, according to Pothier is not within the rule res inier alios acia. Further : tile creditor has established his. claim in due course of law, and that there can be no doubt of his right to sue-the bond' against the sureties, and recover for a dcvaslavil. The editor of 'Wheeler’s Abridgment, vl. 5, p. 046, cites Jones vs. Anderson, to the same effect. We have not the volume, in which the case is reported, before us, and the editor merely notices it as deciding the point, that no suit can bo brought upon an administration bond, against the sureties, until the administrator has been called to account, and a judgment against him. So that wc are unprepared to say whether it determines any other principle. ' .

And in Coney, Judge, &c. vs. Williams, et al. an'action of debt was brought on the administration bond; to which the defendants, (having set out on oyer, the bond and condition) pleaded performance generally. The. plaintiff replied, a judgment recovered against the ad~ ministrattir, and its non-payment, though they had in their hands sufficient assets for that purpose. .The court say — “Whatever may he the construction in England, it must be considered as settled with us; and so is the practice, that the non-payment of a debt, after it has been ascertained, by a judgment of court, or by commissioners, is a breach of the condition of an administration bo'nd, as an unfaithful administration.”

The case of ike Archbishop of Can. vs. Willis, has been relied on, as authority to shew that the sureties cannot bq sued, until the administrator is convicted of a devasiavii. That point did not arise in. the case. The only point adjudged in regard to a’creditor, is, that the terms of the condition of the bond required the administrator to render his account to the Ordinary; and that the non-payment of a debt, was not a breach.

In Greerside, &c. vs. Benson, Spc. Lord Hardwiclte recognized a 'judgment on an administration bond, at the suit of a creditor, and made it the basis of a decree.

And, in the Archbishop of Can. vs. House, Lord Mansfield, sustained by all the Judges, suffered a suit to proceed on an administration bond, for the benefit of a creditor'; so that the case; in Salkeld, which, has -been cited at the bar, and referred to in'the ciase, in Ohio, as an authority for its judgment,- we discover, has been, itself, overruled. .

■ In Indiana, a justice of .the peace, is required to give bond, “ with good freehold security, for the faithful disf charge of his duty, and for paying over, on demand, to the proper person, authorized or entitled to receive the same, all moneys that might come into his hands..” On such a bond, the- Supreme court of that state, adjudged It competent, to sue the principal 'and his sureties, and to recover forall acts of the justice committed,'by vir-tu® of his office, and for which, exclusively of the .bond, he would he individually responsible;”' and this, without first ascertaining the liability of the principal, in a previous suit. — The State, &c. vs. Flinn, et. al.

It has been, heretofore, determined by this court, that an action of debt, suggesting a devastavit, would lie on a judgment, de bonis intestatis, aghinst an administrator, either before or after the issuance of an execution,— Burke vs. ■Adkins et. ux: It is, therefore,’no objection to the declaration, that it does not aver,, that a fi. fa. issued, and was returned nulla bona.. -

Lét this review of the authorities serve, to shew the ground, on which rests our opinion, that the declaration in the case, before,ús, discloses a good cause of action. And as the case must be remitted to the Circuit court, it may ■ be well to settle several other questions, which have been incidentally noticed at the argument, and which inay arise on the trial..

At the'- time the bo,nd sued on,' was executed, no executor or administrator; was to be liable, out of their individual estates, for not pleading, mispleading, • or false pleading in, or to, any action whatever, which may be brought against them, as such. This law was changed, in 1826, so far as it relates to the executor or administrator ; and by the repealing statute, it whs .enacted, that “no’security for an executor or administrator, shah be'chargeable, beyond the assets of the testator or intestate, on account of any omission or mistake, in pleading, of the executor or 'administrator-.” The old law changed the common law, and was more favorable to the administrator, while the act of 1826, restored the common law, and subjected him to a recovery,, as for-a devastavit., for1 not pleading, ,&c—Garrow vs. Emanuel.

It is entirely immaterial to the surety here, whether the first or the last statute, admeasures the extent of his liability; for under neither, can he be. charged, beyond the assets of the intestate.

As the surety can only he liable to the amount of as-cset», it -will be necessary for the jury, not only to find ■the issue for the plaintiff, but also, the extent to which the administrator has wasted the assets — Fairfax vs. Fairfax : — Sturdivant vs. Raines: —Burnett vs. Harwell: Gardner’s adm’rs vs. Vidal :

It will follow from what we have said, that though an administrator may be charged, for a constructive waste, yet, to authorise a recovery, against his surety, an actual devastavit must be shewn.

It remains but to add, that the judgment must be reversed, and the cause remanded.

       13 Johns. R. 437; 1 Bay’s R. 456.

       See form of writ, 1 Saund. R. 303.

       1 Saund. R.219, note 7.

      2 Porter’s R. 538;

      2 Blackford’s R. 52;

      3 Leigh’s R. 89;

      16 Mass.R. 524.

      1 Wash. R. 31.

         1 Call's R. 333.

         1 Munf. R. 1.

      Vide Revised Code, ch. 104; sec. 63; Ed. 1819; and Allen vs. Cunningham—3 Leigh’s R. 395.

      5 Mon. R. 99.—See also 1 J. J. Marshall’s R. 183—2 Ib. 19.

      4 Ohio R. 98.

      1 Marshall’s R. 489.

       Munf. R. 548

       Tucke’s case—3 Leon’s R. 241. Browne vs. Collins—1 Vent’s. R. 292. 1 Saund. R. 219, note 7. Anthony vs. McCall—3 Blackford’s R. 86.

      2 Chan. Cases, 217.

       13 Johns. R. 437.

      6 Conn. R. 74.

      4 McCord’s R. 113.

      9 Mass. R. 114.

      14 Mass. R. 105—15 ibid. 6—16 ibid. 524—3 Conn. R. 289.

      1 Salk. R. 315.

      3 Atk. R. 248.

       1 Cowp. R. 140.

      3 Blackford R. 72.

      2 Porter R. 236.

      3 Stewart R. 285.

        5 Cranch R 19

      1 Leigh’s R 481

      3 Ib. 89

      6 Rand. 160.


text:
    BROWN, et. al. vs. LEVINS, SURVIVING PARTNER, et. al.
    1. The Supreme court, will dismiss a writ of error, on motion to that effect, for a misjoinder of defendants, if upon looking into the writ, they find the objection well taken.
    2. The statute of 1815, authorises the Supremo court to render judgment, against the principal and surety, in a writ of error bond, in case of a dismissal, or discontinuance of a cause,. but such judgment can only bo rendered, where the bond is given in conformity with 'the act. And where the directions of the statute have been departed from, in setting out the proper obligees in the bond; there can be no judgment rendered against the sureties.
    3. By the terms “ adverse party,” contained in the statute, of 1814, are to be understood, all who are made defendants in the Supreme court; — and, therefore, where the bond was executed, in favor of one only of several defendants, no judgment could be rendered against the sureties.
    4. Semble — such a bond is not void; but on account of a want of conformity to the statute/cannot be subjected to the statute remedy.
    5. The obl’gee may, however, semble, be entitled to his common law remedy, against the obligors, and may recover damages for a'breach.
    Error to the Circuit court of Clarke county.
    Bill to foreclose a mortgage. Benjamin Levins, surviving partner of the firm of Charles Irby and Company, on the twenty-second day of August, eighteen hundred and thirty six, filed his bill of complaint, in the Circuit court of said county, exercising chancery jurisdiction, against Stephen Brown and Thomas Brown, of the county aforesaid, defendants,-to foreclose a mortgage, executed by said defendants, to Charles Irby and Benjamin Levins, of the city of Mobile, on the third day of June, eighteen hundred and thirty four, of certain lands'therein described, for securing the punctual payment of'a sum of money therein mentioned.
    And at the March term-, eighteen hundred and thirty seven, of said court,'it appeared, to 'the satisfaction of said court, that nó ’answer had been filed; to said bill of complaint; and it was, on motion of complainant,' ordered, that complainant’s said bill of complaint, should be taken pro confesso, against said defendants, to the end, that such decree might be made thereupon, as should be just. .And, it was also,, on motion of complainant, ordered, adjudged, and decreed, that it should be referred to the clerk of the court, as Master in Chancery, to compute and ascertain the amount, due to complainant; from defendants, for the principal and interest, on the mortgage; in said • complainant’s said bill of. complaint contained ; and that he should make report thereon, -with all convenient •speed.-
    And at the same term, the Master reported, that the principal and interest then due, on said mortgage, amounted to sixteen hundred and eighty six dollars and sixty nine cents; .andAt was, thereupon, on motion of complainant, ordered, adjudged, 'and decreed, that the said report, and all the matters and things, therein contained, should-stand ratified and confirmed. And it was further ordered, adjudged and decreed, that unless the said defendants, within thirty days after the date of the decree, should pay to the -Clerk and Master of the court, the aforesaid sum of-sixteen hundred and eighty six dollars, and sixty nine cents, together with the lawful interest thereon, from the date of said report, and also the costs to' he taxed in the ease, that all and singular the premises described in the mortgage, and in the bill of complaint; should be sold at public auction, to the highest bidder, by and under the direction of the clerk and master of the court, he giving thirty days notice of the time and place of sale, by posting advertisements at three or more public places in- Clarke county: that the said clerk and master should execute a deed or deeds, for the premises, to the purchaser or purchasers thereof. And it was further ordered, .that out of the moneys arising from said sale, the said clerk and master should pay the said complainant, the said sum of sixteen hundred. and eighty-six dollars, and sixty-nine cents, with such interest as should have accrued thereon; also the costs to be taxed in the case, and the residue, if any there should be, he should pay to the said defendants.. The roaster to report at the next term, his proceedings, &c.
    And at the October term of the court, the master reported, that in pursuance of the decree aforesaid, he did on the fifth day of June, eighteen hundred and thirty-seven, at the court house in said county, sell the premises and appurtenances in the decree described, having in obedience to the requisitions of the decree, first given thirty days notice by advertisement, posted up in three or more public places in Clarke county aforesaid, of the time and place of such sale, with a brief description of said premises, at which sale, the said premises with the appurtenances, were struck off to James Savage, junior, for the sum of fourteen hundred and thirty dollars, it being the highest sum bid for the same; and in consideration of the-said sum of fourteen hundred and thirty dollars, bid by the said" James Savage, junior, had executed and delivered to him a deed of conveyance of the premises, with the appurtenances,, as he was required to do. by the decree; &c.
    The-report of the master was at the same term of the court confirmed, and it was also ordered, adjudged and decreed that an execution should issue for the balance due upon the mortgage and decree; and it was further adjudged and decreed, on the affidavits of James Savage, junior, and ■ William Coate, .shewing that the said Stephen Bx’own and Thomas'Brown, had refused since the sale of the said master, to give possession to the said James Savhge junior, of the said mortgaged premises, that a writ should issue, directed to any sheriff’ of the State of Alabama, commanding him to put the said James Savage, junior, or his agent, into peaceable and quiet possession of the said mortgaged premises, sold by said master aforesaid, and that return thereof should be made at the next term.
    To the order for the issuance of a writ of possession, defendants excepted, because the report of the master was not verified by any affidavit or deposition, that the property was advertised; nor was'fit made known to the chancellor what were the terms of the advertisement, or the.'dcscriptiqn of'the property as set forth therein, except as was shewn by the report itself. The chancellor overruled the objections, and granted the motion for the writ of possession, to-which the’ defendants excepted, and a writ of error was thereupon sued out, returnable to this court.
    The writ of error bond entered into by defendants and their sureties, acknowledged that the obligors were held and firmly bound, unto James Savage, junior, in the sum'mentioned, for which payment well and truly to be made,, they hound themselves, &c. The condition was,'that whereas Stephen and Thomas Brown had applied for and obtained a writ of er-l’or in a certain decree, &c..in a cause pending wherein Benjamin Levins^ surviving partner of the firm of Charles Irby and Company, was complainant, arid the said Stephen and Thomas Brown, defendants, cn a bill to foreclose a mortgage', ordering a writ of possession to be issued, directed to any sheriff, &c. corr„-manding him'to put the said James Savage, junior,into -peaceable and quiet possession of the said mortgaged premises, he the said. James .Savage, junior, being the purchaser at the sale of the mastfer, returnable to the next term of the Supreme court, &c. Now if the,said Stephen Brown and Thomas Brown should prosecute their said writ of error to effect, and pay and satisfy the judgment which should be rendered in said cause by the Siqireme court, then the obligation was to he void, otherwise, &c. Signed and sealr ed by the defendants and their sureties.
    The writ of error commanded any sheriff in the State of Alabama, to make known unto James Savage, junior, or his attorney, that he should bo and appear befoxe the honorable judges of the Supreme court, &c. to hear the record and process of a plea lately in the Circuit court and Court of Chancery of Clarke county, wherein Benjamin Levins, surviving partneb of the.firm of Charles Irby .and Company,, filed a bill to foreclose a mortgage against Stephen .Brown and Thomas Btovvn, &c. and wherein a writ was ordered to issue, to put James Savage, "junior, in the possession of- the mortgaged premises, .and further to do "and receive what the Supreme court should then and there consider in that behalf, &c.

      Poster,, for the motion.

      Aik. Dig. 254.

      Aik. Dig. 255.

   COLLIER, C. J.

The counsel of Savage, mié of the defendants in error, has moved to dismiss the writ of error, for .a misjoinder of defendants. Upon looking into the writ, we find the objection well taken in point of fait,, and accordingly direct the dismissal. But it has been questioned, whether-the judgment for costs, should ‘beié idered against the plaintiff’s only, or against them and their sureties in the bond to prosecute the writ of en or to effect. The statute authorises this court to render judgnlént against the principal and surety in the. bond, “ in case of dismission or discontinuance of the cause.” Such judgment, however, can only be rendered where the bond is given in conformity with 'the act. in the present case, the directions of the statute, 'which require the bond lo be made payable to the “adverse party,” have been departed from. By the terms “ adverse party,” we are to understand all who are made defendants in this court. Here the bond is executed in favor of. Cavago alone, and according to the rule laid down, there can bo no judgment against the sureties. We do not mean to be understood that the bond is void, but on-iv that it does not conform to the statute so as to subject it to tiie statute remedy; yet we think Savage is entitled to his common-law remedy upon it, against the plain - tiff’s, and may recover damages for a breach.