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    THE PLANTERS' AND MERCHANTS' BANK OF MOBILE vs. ANDREWS.
    1. A privy in interest in attachment, may at all times point out defects in the proceedings, and submit a motion to quash.

      2. And, it seems, that tho practice of quashing attachments, where the remedy is unauthorised, or the requisitions of the Statute, not compiled with, upon the mero motion of strangers to tho record as amid cv.ri.ce, has prevailed so long, that it is not now considered irrcguiar.
    3* A defective bond is not a sufficient cause' for quashing proceedings by attachment, unless plaintiff declines executing a perfect bond.
    4. A possible debt, depending upon a contingency which may never happen, cannot be proceeded on by an he tunen t: but
    5. Where neither the writ, affidavit or bond, allego that defendant’s estate was attached to satisfy a contingent, liability — it will bo presumed that the undertaking for which plaintiff seeks redress, is absolute.
    6. The endorsement on an attachment is no part of the record, as the law docs not require that the cause of action should bo so endorsed; and wi 1 not be looked to, to ascertain the nature of the demand, forcing the basis of the attachment.
    7. Tho object of the fifth section of tho constitution, article on banks, was, to restrain tho login ature from granting to banking corporations, exclusive facilities in the collection of its dobts, but does not rLprivo theffiauirs, in common with other creditors, of tho benefit of process by attachment.
    8. Corporations allowed to sao and bo sued, necessarily possess authority to perform by their agents, services incident to the commencement or prosecution of suüs. '
    9. The tefm person, in a statute, embraces not only natural, but artificial persons, unless the language indicates that it was employed in a more limited sense — therefore, a corporation is a person, within the meaning of the attachment laws.
    Error to the County court of Mobile.
    Attachment.
    The plaintiff in error caused an attachment to be issued against the defendant, returnable to the County court of Mobile, upon the affidavit of their cashier and agent, which declared “ that Solomon Andrews, of the city of Mobile, was indebted to the said Planters’ and Merchants’ Bank of Mobile, in the sum of two hundred and seventy thousand and eighty-five dollars, and twenty-one cents, on bills of exchange, which had not arrived at maturity, and which were not yet due, but which would fall duo from the then present time, at various periods, to the twenty-sixth, of September ensuing.” And he further saith, “that the said Solomon Andrews absconds, so that the ordinary process of law cannot be served upon him,” &c. The affidavit bore date the twenty-first day of April, eighteen hundred and thirty-seven.
    The attachment was of even dote with the affidavit, and was not objected to. The bond conformed to the attachment, save only in reciting the time of its return. It substituted the first for the second Monday in June, as the time when the County court of Mobile was to be holden.
    On the attachment, a cause of action was endorsed, in these words:
    “ This action is brought to recover of the defendant, the amount of fifteen bills of exchange, drawn by him on II. M. Andrews & Co., and which arc running to maturity, but which have not yet fallen duo, -and will 'become due at divers times from the date hereof, to the twenty-sixth day of September, eighteen hundred and thirty-seven — viz. one bill for twelve thousand five hundred and eighty-five dollars, twenty-one cents; one for twenty-five hundred, dollars; two for ten thousand dollars, each ; nine bills for twenty thousand dollars, each; and three bills for twenty-five thousand dollars, each; and which bills ave the property of the plaintiff, and payable to it.”
    From, the sheriff’s return, endorsed on the attachment, it appeared to have been received by him, and levied on certain property supposed to belong to defendant, and also served in tiic hands of several individuals, supposed to be indebted, &c. to the defendant.
    In the record, we found a declaration charging the defendant, as the drawer of fifteen bills of exchange, falling due subsequent to the issuance of the attachment, and also a general indebitatus assumpsit, count, for money lent, &c. had and received, &c.
    The following judgment was rendered by the County court: “This day came the plaintiff, by its attorneys, and moved the court for judgment by default against the defendant, Solomon Andrews, for want of an appearance and plea, and also moved tl:e court for judgment against the several garnishees, who have been summoned to answer in this cause, and who have failed to answer within the time prescribed by law, to wit: against Joseph Wood, James B. Craighead, William R. Ilailet, President of the Mobile Bank, John Gayle and William J, Vandegraff, Andrew Armstrong, Cashier of the Branch of the Bank of the State of Alabama, at Mobile, William 11. Hallet, Jonathan I3cic.uu.cl, Thomas W. McCoy, Audley H. Gazzam, Edward Hamrick, Lewis Andrews, partner of the firm cf Andrews & Brothers; — and also moved that the court proceed to try the right to the property levied on and claimed by Joseph Wood, and also to that levied on and claimed by William E. Hallet, as the property of Robert Wilson, Hallet anil Company, respectively.
    “And thereupon came James ¡B. Craighead, esquire, Messrs. Gayle & Yanc’ografT, esquires, and Gordon, Chandler & Cam; bell, esquires, amici curice, and who moved the court to quash the attachment, and all the proceedings thereupon, had on the following grounds: First, the want of an affidavit, according to the statute. Secondly, for want of a proper bond. Thirdly, for defects in the writ?
    “And the said amici crricc also moved the court.to set aside the proceedings for irregularity, because the declaration does not correspond with the attachment; — because the attachment was taken for a debt not due.; because, upon the attachment and declaration, it discloses a case upon which no attachment ought to have issued; and because the whole proceeding is uncertain, variant and illegal: all which being seen and heard by the court, and due deliberation being thereupon had, it seems to the court, that the said attachment,” &c. “ should be quashed, and the same are by the court quashed and dismissed.”
    The court refused the motion for judgment, $»c. as made by the plaintiff, and rendered a judgment, against the plaintiff for cost.
    From a bill of exceptions, sealed by the judge of the County court, it appeared that the plaintiff tendered a new bond immediately after the decision upon the motion to quash was announced, conforming to the affidavit and writ of attachment, which the court refused to accept, though entirely satisfied of the solvency of the surety who executed it.
    Under the state of facts above disclosed, this case Was brought here by appeal.
    The assignments of error now made aré as follows:
    1. The court erred in quashing the said attachment.
    2. The court erred, as set forth in the bill of exceptions taken by the appellant below.
    3. The court erred in rendering judgment below against the appellant.
    4. The court erred in refusing to render judgment for the plaintiff below, as moved for by it.
    5. The court erred in refusing to allow the motions made by the appellant.
    6. The court erred in sustaining the motions made by the amici curien in the court below.
    7. The court erred in discharging the garnishees below.

      Stewart, for 'the plaintiff in error.-

      Campbell, contra.

      Stewart, for plaintiff in error.
    — The objection made is, that the attachment will not lie, because the liability is not a contingent one, and not due, and may never become a debt due; and the case of Benson vs, Campbell is cited to sustain that position.

      That the debt is not yet due, is not the objection— (See Aikin’s Dig, p. 37.) An attachment will lie for a debt not yet due, and the attachment shall be a lien until the debt becomes due. Tlie law does not, by the attachment, authorise a judgment on such a demand before due; it merely authorises a party to secure and obtain security for his debt, until it becomes due; and whether there shall be a recovery or not/ must depend upon whether the liability is completed afterwards of not — it is very different from the case where a judgment is allowed at once abating interest. Such is not the remedy given by our statute.
    A mere contingency' of itself, is not a sufficient- objection — for all obligations payable at a future day, may be said to be contingent. If a noté, payment may be made — a set off may be set up-r-the consideration may fail — the note may be altered by the holder, and become void. If the note be' a joint and several one, it may be paid by another party — taken up by an endorser, &c.
    All obligations are at least contingent as to the''question of payment, for the obligation may be paid-at ma-' turity; and if so, there never can be á judgment. Then, in aireases of this nature, whether there shall ever be a judgment of not, will depend upon the occurrences to happen after action brought, and-there can exist no possible case where this contingency does' not exist, and > where the right of action exists at the time of suit, brought, and where we call say there will certainly be a judgment eventually on the demand;-whether there éhallbe a judgment or not, depends, on. a contingency. It is, therefore, not the contingency merely, which is to govern lis — but either we must make a distinction between different degrees of contingency, or seek a new principle of distinction.
    These reflections and others, lead me to the conclusion, that whether the debt be merely contingent or not, would make no difference under this statute. But there is a decision of the court, and if the court are satisfied, with the -propriety of the decision, then we must examine the extent to which the principle decided, is to be carried.
    If the objection is to rest upon the question of contingency, (and all cases must necessarily be more or less contingent;) t-hen it is the degree and extent of the contingency which we must investigate. It is evident the rule must have a limit, and there must be some stopping place: the line of demarcation between cases where the attachment will lie, and where it will not, must be drawn. How far will the court extend it?
    The case of Benson vs. Campbell, was a most presumptuous attempt to attach, without any right or title whatever, and that case, so far as the facts of it are concerned, proves nothing. In that case, Campbell was not the holder of the bill. He had endorsed a bill as a surety,. and had paid nothing, but became alarmed, lest he should afterwards become liable, and be compelled to pay, in which case he would have a claim against his principal; hut he parted with no consideration — paid no money— and had nb right to recover against any body; but the holder of the bill was the party entitled to the money. The case there was, that he might first become, by possibility, liable himself; then he might pay, and then he would have a claim against Benson. This was a preposterous claim. These facts appeared in the writ of attachment. It recited no indebtedness whatever, present or future. There was no declaration. The court said they would remand, if the fault was in the declaration; but “ no declaration could be framed on that writ,”— therefore, they would reverse in loto. There was no affidavit of indebtedness. The objection there was radical —hot merely technical — it was absolute, and advantage of it taken by the defendant himself. No case could be framed on it which would authorise a recovery. From the facts shewn, it was apparent that it was not a case where there might be, or might not be, a right to recover, but it was a case where it was conclusively shewn that there.could be no right.
    Our case is different. Suppose that on our writ, we should have framed a declaration, shewing an absolute liability at all events — then there could have been no difficulty. In the affidavit in our case, we shew on oath an absolute indebtedness. The endorsement on the writ, can never be.taken to defeat the writ. It cannot be resorted to for that purpose. Suppose the declaration was variant from the endorsement' on the writ — the variance could only have been taken advantage of -by plea in abatement — not by demurrer; and if he failed to do so, it was not error. The proceedings in attachment say the statute must be liberally construed.
    Ours is a case where it is not conclusively shewn from, the declaration, much less the writ, (and it is the writ which is quashed — the quashing of the declaration, or setting it aside, or refusing to grant our motion for judgment by default, could not have injured us, for we would have amended it, and filed a new one, shewing absolute liability, which could be done, without any inconsistency with the writ, affidavit or endorsement,) whether the debt is absolute or not. It may for aught the court knows, from the writ, affidavit and endorsement, be a case of absolute liability on the part of S. Andrews. The truth of the case — the very facts which can be stated— will afford the best argument possible to prove this. The facts are these: S. Andrews and H. M. Andrews were partners. The firm of H. M. Andrews 4* Co. consisted of H. M. & S. Andrews; and H. M. Andrews was a partner with S. Andrews in Mobile, under the name of S. Andrews. The bills were drawn on the New York house, without funds, for the accommodation of the house of S. Andrews in Mobile. S. Andrews got the money, and it was an expedient used to raise money by him ; so that in fact he was drawer and acceptor both. No demand was necessary — no notice was necessary to him, —and he, as well as H. M. Andrews, were jointly and severally liable for the whole debt, as drawers, and also as acceptors.'. (They may, as such, be jointly and separately sued by our statutes.) Suppose these facts had been disclosed by the declaration, the objection would have vanished. It would be a case of positive and absolute, not contingent liability in S. Andrews — for he draws on himself. Then if this be true, and such a declaration could have been filed, the writ could not be quashed, for its sufficiency cannot depend on the goodness or defectiveness of the declaration. The court might have refused to grant us the judgment by default, we asked, but should not quasli the 'writ. We would- have filed a new declaration. ‘ •
    But I now propose to shew more than this ■ I propose to shew that the declaration was a good one, and one which would admit of being proved and'satisfied by proof of an absolute liability. It is true, that the counts are in the usual form, averring notice, demand, protest, &c. But it does not follow, that we must prove demand, protest and notice, to prove and satisfy the averments of it. Suppose we were to go to trial under this declaration, and then prove the very facts which I have before stated- — the court would have told the jury, that if they believed those facts, they must find for the plaintiff;- that they were tantamount, and equivalent to demand, notice and protest; that the liability was absolute, because the law would consider such drawing as a fraud on the bank; and that as to the form of the declaration, any thing which would amount to a waiver of demand, notice and protest, or any thing which would shew them to be unnecessary, was sufficient to satisfy the averments of those things, and would have cited law in support of this proposition. And this court would have*affirmed that judgment.
    This view of the case turns upon the question, whether or not this declaration, in the shape in which it is, wpuld admit of proof of an absolute indebtedness.— There are a great variety of cases, which,might be presented, which would satisfy the averments of the'declaration as laid, and still be cases of absolute liability. Suppose we were to produce on the trial, an acknowledgment in writing, signed by S. Andrews, dated after the drawing of the bills, and before suit brought, as follows: “I agree to waive the necessity of protest and notice, admit that the bills were drawn for my accommodation, and that I received the consideration, and am primarily liable, having rio funds in thé hands of H. M. Andrews to pay them,” — or any other thing of the same import; or suppose it was shewn that the firm of H. M. Andrews & Co. consisted solely of “Sol. Andrews,” himself alone, doing business in New York, under the name and style of H. M. Andrews and Co. — or any other state of facts whatever, of which a. thousand might be imagined, which would put those bills in the class of bills in which the drawer was in fact the party primarily liable, and that if any other party paid the bill, he would have an action thereon against him (the drawer) for the amount;.’ Then on the trial, a recovery could be had on those counts, and no special form of declaration was'necessary, the general form being sufficient to admit such proof.
    It therefore appears, that the4 case might in fact be a ease of absolute liability, or might not, and whether it was or was not, was to appear from the proof. But even if it appeared from the declaration, the declaration can never determine whether a writ, when issued, was subject to be quashed or not quashed. The writ was good or bad when issued, and no subsequent part of the pleading can vary its original merits.
    Why shall we say it was bad from its own face? It recites that “Sol. Andrews was indebted in the sum o£ $i' — , to become-due hereafter, not contingently, but absolutely,” Very different from the case of Benson vs. Campbell: the affidavit is to tile same effect, of an absolute indebtedness — the endorsement is not inconsistent with this state of the case, and does not destroy the averments of absolute indebtedness contained in the affidavit and writ. The bond would secure S. Andrews against all injuries which might arise, if the claim was an improper one, and the debt not really an absolute one. He might plead in abatement, that it- was a contingent liability, if such was the fact, and abate the writ; but he could not file such plea, because it required to bo sworn to, (and he could not deny the fact,) and he would have to give us a better writ, if the liability was absolute. Now, it does not appear that he denied in any way the absoluteness of the debt; but strangers, who do not know whether it is absolute or not, do interfere without it appearing to be, and without pretending that they represent him, and personé who are not liable to him, because of the very fact that they do not pretend to represent him, but they represent their own interest. They injure both plaintiff and defendant, and without authority. I no not deny, that if they had pretended to represent Andrews, that their authority to do so could be disputed, because they are coun-sellors ; but they do not say that they have his warrant, or that they wish to represent his interests. They do not say whose interests they desire to protect, and the presumption is against them.
    Andrews himself, was in default for not appearing— the time _ had passed when the bills had fallen due, and it was by the declaration shewn, that the liability had become, under any view of it, and was, absolute, at the time the writ was quashed. The general statutes of Jeofails would prevent our defeat in this case, because the demand'must be tried according to its merits, and 'justice. But the attachment law- is still more liberal by its express enactments. If there be no bond and affidavit, it must be abated by plea. There is no part of the statute which authorises the motion to quash, either by the defendant or any one else. The law first required the defendant to replevy, before he was admitted to plead,' ('Aik. Dig. p. 41, s. 13;) but it was amended so as to allow him to appear and plead without replevying.
    Section seventeen provides, that the statute shall not be rigidly construed ;■ even the- original papers may be amended. The right to amend is absolute, unless the error was a fraudulent one; nothing else can prevent the amendment.
    Section thirty-nine provides, that no attachment shall be abated for want of form, much less quashed. The motion'to quash must certainly be confined, if it can be-made at all, to what appears on the face of the writ — for the statute has provided that want of bond and affidavit shall' be by plea in abatement — and this court has determined that a defective writ, in the case where the return day is wrong, is not void, but voidable, and ¿nay be abated — not quashed.
    I will.conclude, by adverting to the wide field opened in these cases', if this objection can prevail. Where shall it stop ? What the ’line of demarcation between cases to be considered contingent, and those not 1 The case of Benson is one where not only the liability is contingent, but where the plaintiff’s grievance is-contingent. Not so in this case : Andrews has received the consideration, and we have parted with it. Certainly, any case where the liability is primary, is not contingent. Apply this rule to cases of joint makers — of endorsers — against joint and several makers — against sureties, where. the plaintiff is the holder — cases where endorsers are liable, only where the maker is prosecuted to insolvency-r-hut-where they cannot be found, (case under our statute where notes are not payable in bank,) and all cases where others are liable as well as the defendant, and where a party has a right of action against several at the same time for the same cause of action, as bills endorsed, and notes endorsed, and what will be the effect of this principle? It will prove very injurious to justice, and to the equal rights of all creditors; — they should all be upon the same footing. One creditor may acquire a lien on all a man's property, when the contract is contingent in substance, though not in form, to the exclusion of another, whose contract is absolute in form, but contingent in reality — which result was never intended by the statute.

      Campbell, for the defendant in error.
    — The counsel for the plaintiff insists, that all obligations are contingent as to the question of payment, and because the statute permits an attachment to issue upon an obligation to which there is incident such a contingency, an attachment may issue upon all contingent liabilities.
    The contingency in the question of payment, arises out of some conduct of the debtor. If he honestly fulfils the contract, payment will be made — but as the conduct he may maintain, renders the fact doubtful, (in certain specified cases,) security is afforded to the creditor, by allowing in advance the remedy by attachment.
    The contingency in the “ question of payment,” arises out of none of the stipulations of the contract. Both parties contemplate certainty in the payment, and one party pledges fidelity in the performance of that act.
    The contingency that we say renders this remedy improper, is, that the liability of the defendant may never exist. He may never owe the plaintiff one cent. The parties do not contemplate that he will owe the plaintiff. Whether he will owe the plaintiff, depends upon circumstances, still to intervene. Until they occur, there is no claim that the plaintiff is justly subject to.
    The case of Benson vs. Campbell, (6 Porter’s R. 445,) is express to this point. A party had become liable, as an accommodation endorser, on a bill of exchange. His liability was not certain — nor had he done any act to insure a claim against the defendant. But he was in a situation in which a liability might arise to pay thetlebt, and the‘defendant was proceeding in such a manner as rendered it probable that he would be compelled to do so.
    But the court determined that the process of attachment rests upon no quia limit principle. There must be a direct contract, either matured and violated; or one the violation of which was rendered probable, to authorise its adoption. There must be an indebtedness at the time.
    The same contingencies appear in this contract. A drawer of a bill is supposed to assign effects at the time for the payment of the bill. Whether he shall ever be called to do more than this, is uncertain. Whether he shall Become liable to do more, is dependent upon the acts of others. These acts must be performed before his liability arises. The contingency of a further liability in the drawer, is as remote as that in the case of Benson vs. Campbell.
    The facts stated by counsel, should have appeared in the affidavit, to justify the argument upon it. It is true, that a drawer of a bill may, at the time it was negotiated, give collateral instruments, that will render it a direct liability — or ther# may be circumstances that will convert a collateral into a direct liability. Those circumstances ought to' be shown.
    The old statute required that-the affidavit should specify the nature of the debt — the account between the parties. If our present statute does not make the requisition, it has not changed the principle upon which the-employment of the remedy depends — (3 Stewart & Porter, 67.)
   COLLIER, C. J.

— It has long been the most general practice in this State, to move to quash attachments in the manner in which the motion was submitted in the case at bar: — A practice suggested ex majore cautela, and originating doubtless, from^an apprehension that an appearance as counsel, operates a waiver of all defects apparent upon the face of the proceedings — an idea, certainly without any foundation, either in law or reason.— And motions thus submitted have been entertained by our courts, under the impression that it was competent for them, mero molu, to repudiate a case commenced by attachment where the. remedy was unauthorised, or the requisites of the statute were not complied with. In a case rendering it necessary, it might indeed be a matter of serious inquiry, whether a practice that has so long prevailed, should be held irregular, however much we might feel inclined to- disregard it, were it res integra.

But the present case does not require us to consider the general powers of an amicus curice, for the record clearly discovers that several of the gentlemen who presented themselves before the County court in that character, had such an interest in the (pntroversy, as author-ised them to submit a motion to quash the attachment, issued at the suit of the plaintiff. They had been summoned as garnishees, to answer as to their indebtedness to the defendant, and at the time they made their motion, the motion of the plaintiff’s attorney for a judgment by default, was pending before the court. So we think it clear, that at least several of the gentlemen who advocated the motion to quash, cannot be regarded as mere volunteers without an interest — and either one of them being authorised-as a privy in interest, to point out defects in the proceedings, it is immaterial what is the predicament of the others.

The true inquiry, then, is, did the County court err in its judgment? The bond on which the attachment issued, does not correspond with the attachment. It recites the time when the court is to be holden, to be the first Monday in June, without designating it as the next County court, &c. If the condition of the bond contained these latter words, we will not say that they would not authorise the rejection of the former, viz. “ the first Monday in June next,” and the bond then be a sufficient compliance with the law; although this court; under its first organization, decided that a capias ad satisfaciendum, “returnable to the next term of the court, to be holden,”' .&c. at a time not appointed by law, was absolutely void—(Brown vs. Simpson, 3 Stew. R. 331.)

In Lyon vs. Malone, (4 Porter’s R. 414,) this court determined that a writ of error not ¡.showing the term of the Supreme court to which it was returnable, might be amended by its teste, or by the bond or citation ; — that / the time- of its issuance being ascertained from either of these sources, the statute upon the subject ascertains the return to be the next succeeding term of the court. In the case before us, the statute is not so explicit on this point, but the court to which the proceedings are returnable, and the time when they are to be returned, is prescribed by the officer issuing the attachment, and must appear on the face of the proceedings—(Aik. Dig. p. 38, sec. 6.)

In Lowry vs. Stow, (7 Porter, 483,) the bond described the attachment as being returnable near two years previous to its issuance, and was considered by this court as defective.

The bond, then, was defective; yet the court should not, for that cause, have quashed the proceedings. This court has heretofore decided, under- the influence of the seventeenth section, (Aik. Dig. p. 42,) of the attachment law, as revised in eighteen hundred and thirty-three, that a defective bond was not a sufficient cause for quashing the proceedings by attachment, unless the plaintiff declined executing a perfect bond —(Lowry vs. Stow, 7 Porter, 483; see also Pearsall & Stanton vs. Mid dlebrook, 2 Stew. & Por. R. 406; and Johnson vs. Hale, 3 Stew. & Por. R. 331.)

' It is further insisted for the defendant, that the record does not disclose such a liability as will form the basis of an attachment — that the defendant may probably never become chargeable to the plaintiff — a fact which cannot be known, until after the protest of his bills for non-acceptance or non-payment; so that at most, his undertaking with the plaintiff is contingent.

In Benson vs. Campbell, (6 Porter’s R. 455,) it was held that “ under our attachment laws, a plaintiff must show that the defendant is indebted to him in a sum of money past due, or else in a sum of money to be paid at a future dayP That lí a possibility depending upon a contingency which may never happen — the dishonor of a draft, for the payment of which the defendant was a surety,” could not be proceeded on by attachment. But neither the writ, affidavit or bond, inform us that the defendant’s estate was attached to satisfy a contingent liability, and for any thing shown by either of these, the undertaking for which the plaintiff is seeking redress, is absolute.

The endorsement on the attachment, it is true, discloses the character of the plaintiff’s demand — yet this cannot be regarded a part of the record, inasmuch as the law does not require the cause of action to be endorsed on the attachment. This point was brought directly to the view of this court, in Lowry vs. Stow, (7 Porter’s R. 483,) and it is there shown that the act of eighteen hundred and seven, which makes it “ the duty of the clerk, or plaintiff’s attorney, to endorse on the back of the writ the cause of the action, the nature of the specialty, or the grounds on which the action is founded,” as indicated both by its terms and its title, “ applies to the initiatory process in a cause issuing from courts in which clerks are necessary officers.” This decision still meets our entire approbation — and the endorsement not constituting a part of the record, affords no warrant for the judgment of the County court.

The only remaining question raised is, whether a corporation can', in any case, recover its debts by attachment. Our statute upon the subject enacts, that “original attachments, foreign and domestic, may be issued by any judge of the Circuit or County courts, or any justice of the peaceN And further, that' “ every judge or justice, before issuing an attachment, shall require the party applying ' for the same, his agent, attorney or factor, to make affidavit in writing, that the person against whom the attachment is prayed, absconds,” «fee. “ and shall- further require the person applying for the attachment, his agent-, attorney of factor, to swear to the amount of the sum due' the plaintiff,” &c.: “and shall further require tire plaintiff, his agent, attorney or factor, to give bond payable to the defendant,” «fee. The same statute also provides, that a writ of attachment may in all cases issue against the property of a debtor legally subject to the process of at-, tachment, although the debt or demand of the plaintiff be not due,” &c.—(Aik. Dig. p. 37, 39, s. 2, 3, 7.)

The" right of a corporation to avail itself of.the remedy by attachment, arose in The Trenton Banking Company vs. Haverstick, (6 Hals. R. 171.) The objection, there, was rested upon'the ground that the law of New Jersey required the oath, in order to obtain the attachment to be made by the applicant for the writ, and'hence it was argued, that inasmuch as an artificial person could not 'make an affidavit, the bank could not entitle itself to that remedy. But the court remarked, that “ a construction of the act respecting attachments would be unsound and indefensible, and entirely inconsistent with the intention of the legislature, which should preclude a corporation from suing out a writ of attachment; as must be the result, if the'act be so construed as to require the affidavit from the corporation itself, ór to deny the use of the writ without such affidavit. The law which gives existence to the corporation, — which' allows it to sue and be sued, necessarily confers the authority to perform by its agents, by whom alone it can act, incidental services like that in question.”

Again, say the court: “ In general, there is a manifest propriety in the making of such affidavits by the cashier, or president, or one of the acting clerks of the bank, because acquainted with the duties of their stations, with its pecuniary affairs, and of course with its creditors and debtors. But they are, and act in so doing, as the agents of the corporation.” j

The court consider the general right to sue and be sued, and so construe the statute of New Jersey, as to make the term “ applicant,” as far as corporations are concerned, not to inhibit the instrumentality of agents or attorneys.

Our statute expressly authorises the affidavit and bond to be made and executed by an agent, attorney, &c.; and the right to proceed by attachment, results from the incidental power and liability of suing and being sued, which pertains to all corporations, even, at common law; unless taken away by positive enactment. The counsel for the defendant in error, conceding the justness of this reasoning and conclusion, argues that it has no application to hanking corporations in this State — that the con-, stitution, by declaring that “ the remedy for collecting debts shall be reciprocal, for and against the -bank”— (Section five, article on banks, of the constitution of Alabama,) — denies to the plaintiff the remedy by attachment. That inasmuch as the plaintiff cannot be subject to such a proceeding, to allow it to avail itself of it, would be a violation of the reciprocity intended to be secured by the constitution. This argument we think rather more specious than solid. With a view to the proper understanding of the constitutional provision, it may be well to consider the circumstances under which it was adopted.

In the charters of the Huntsville, St. Stephens and Mobile banks, (the only banks established previous to the organization of the State government,) these corporations were invested with power to proceed summarily against their debtors, and recover a judgment at the first term of the court, while a creditor of the banks was required to pursue the ordinary forms to collect his debt. To do away with such inequality, by subjecting the banks, as far as practicable, to the remedies they might employ, the provision we have cited, was made a part of the constitution. Its purpose was clearly to restrain the legislature from granting to banking corporations exclusive facilities in the collection of their debts, The attachment laws are general in their terms — offering to all alike, the benefit of their provisions, and operating upon all who place themselves in the predicament in which they con-lemplate the debtor. That the plaintiff, as an artificial person, never can abscond, is_ clear, and cannot, for that cause, be subject to an attachment; yet this does not depend upon any negative terms used in the statute, but results from the nature of the plaintiff’s character. The proceeding in the present case, is intended as a substitute for the personal service of process; if the defendant appears and gives bail to the action, the writ of attachment becomes functus officio, and the case progresses as if it had been commenced in the usual manner. Now, as the plaintiff could not abscond, but must abide the ordinary procedure of the law, it is difficult to discover any foundation in justice for the defendant’s objection. In fact, if an attachment was denied to the plaintiff, there would be plausibility in an argument, that by its denial, the plaintiff did not occupy ground in regard to the collection of its debts, as favorable as an individual creditor — while it was always in a condition to be sued, its debtors, by absconding, might escape'its suits. We are clear in the opinion, that the constitution does not lend any aid to the defendant.

The argument, that natural persons are alone entitled or liable to the process of attachment, cannot be maintained. It is true, that the statute would seem to refer to such persons only, yet it is well settled, that the term “person,” in a statute, embraces not only natural, but artificial persons; unless its language indicates that it was employed in a more limited sense, or the subject matter of the act leads to a different conclusion. So far as the case at bar is concerned, we can discover no reason for restricting the meaning of the legislature.

In the Bank of the United States vs. the Bank of North Carolina, (6 Pet. Rep. 29,) it was decided, that a corporation was. a person, when placed in circumstances identical with those of a natural person—(s. p. The Farmers' Bank of Delaware vs. the Elkton Bank of Maryland, 12 Pet. Rep. 134, 135; and U. S. vs. Amedy, 11 Wheat. R. 392.)

It cannot have been supposed by the County court, that the defendant would have been without remedy, if the attachment was wrongfully or vexatiously sued out. If such an idea influenced its decision, it was clearly erroneous. The obligors in the bond' would be bound to respond in damages, if the defendant was improperly aggrieved.

In examining the questions presented for our decision, we have not felt authorised to look into the declaration. Upon the motion to quash, it did not regularly come before the court. If it be variant from the writ, or deflective in itself, the defendant’s remedy is entirely different from that he has adopted.

In our opinion, the judgment must be reversed, and the case remanded.

GOLDTHWAITtí, J., not sitting.


source: Caselaw Access Project

author: COLLIER, C. J.

license: Public Domain

text:
    HOGAN vs. THORINGTON.
    1. The action for a false warranty, is intended, not so much to punish the seller, as to compensate the purchaser for any injury he may have sustained.

      2. And in such cases, the measure of damages is the injury sustained by plaintiff, in consequence of the false warranty.
    3. Where one warrants a slave to be sound, which was not so— but who afterwards recovered and became sound — the measure of damages, is, the sums paid for medical attendance, nursing, &c. which induced the recovery.
    Error to Montgomery Circuit court.
    Case for a false warranty, tried by Judge A. Martin.

    The defendant in error brought an action in the Circuit court of Montgomery, to recover damages of the plaintiff, for having falsely warranted to be sound, a negro woman, which he had previously sold to him. The case was tried on the general issue, when the jury found a verdict for the plaintiff, for three hundred and seventy-two dollars.
    At the trial, the presiding judge sealed a bill of exceptions, at the instance oí the plaintiff, from which it appeared “ that the plaintiff (defendant in error) proved the unsoundness of the negro at the time of the sale, in February, eighteen hundred and thirty-three.; and that at that time, she was not worth one half as much as she would have been if sound; that the price paid by plaintiff for said slave was five hundred and fifty dollars.
    “It was further proved, that since the sale to plaintiff, negroes had greatly increased in price, and that the slave in question had apparently recovered froorher unsoundness.
    “The defendant proved, that the plaintiff sold said slave for one thousand dollars, without any warranty of soundness.
    “The defendant moved the court to charge, that if the plaintiff had realized from the sale of said slave, a greater amount than the purchase money, and the interest thereon, he was not entitled to recover; which charge, the court refused to give, but charged the jury, that they could not take into consideration, the amount the plantiff received; but that the true measure of damages was the difference between the real value of the slave, at the time of the warranty, and what would have been her value, if sound, with interest thereon. To which charge, the defendant excepted,” &c. — and here assigned the same for error.

      Campbell, for the plaintiff in error.

      Robert D. Thorington, contra.
   COLLIER, C. J.

— The action for a false warranty is intended not so much to punish the seller, as to compensate the purchaser for any injury he may have sustained ; and in order to a just admeasurement of damages, the proper inquiry in such a case is, what injury has the plaintiff sustained. The deterioration in value, by reason of unsound ness, or other defect, against which the defendant has stipulated, is only important, as furnishing a criterion of damages. What would be sufficient to constitute unsoundness, and as such, a breach of the warranty, does not arise upon the record; for it is admit-ed, that the slave was unsound at the time of the defendant’s purchase. Yet the evidence shows, that she had recovered, so far as appearance indicated the state of health, and had been sold by the defendant at a large advance on his purchase. So that it would be obviously unjust to allow the defendant to recover damages, to the extent to which her value was supposed to have been impaired, by a disease, under which she labored at the time of his purchase, with interest on that sum ; unless he was placed in-a situation so much more unfavorable than he would have been, had the slave been sound.— We think, both reason and authority would graduate the defendant’s recovery by the injury he has suffered in consequence of the false warranty.—(Cozzins vs. Whitaker, 3 Stewart & Porter, 329; Weaver vs. Wallace, 4 Hals. R. 251; Egleston vs. Macauley, 1 McC. R. 379; Caswell vs. Coare, 1 Taunt. R. 566; 3 Starkie’s R. 32.)

A plaintiff, in general, is entitled to recover for all losses resulting directly from a breach of the warranty ; so that, in some cases, he may recover even beyond the price he has paid for the thing warranted. —(Borradaile vs. Brunton, 2 Moore’s R. 582; 8 Taunt. R. 535; Lightner vs. Martin, 2 McCord’s R. 214.) Thus, the purchaser of a slave, warranted sound, who has proven entirely valueless, is entitled to be reimbursed, not only the purchase money, but all proper expenditures for medical aid, &c.

To apply this reasoning to the case at bar, if the slave (though unsound at the time of the defendant’s purchase) has been restored to health, so that the only inconvenience or loss sustained b^lmt unsoundness, was the expense and trouble incurred by the defendant in curing her, to that extent should be his recovery. It is not for the plaintiff to object, that the defendant has been amply compensated by the increased price at which he sold the slave.. This resulted, doubtless, from the demand, and of consequence, enhanced value of such property in market, at the two pe'riods of the defendant’s purchase and sale. The unsoundness of the slave, when the plaintiff parted with her, contributed nothing to such a result; she would have been sold for as much by the defendant had she then been sound, and no expenditure of money by him would have been necessary. It is then, clear, that the defendant has sustained a loss, by the breach of the plaintiff’s warranty; or rather,.has been prevented from realising the profit he was entitled to, by so much as the sums paid for medical attendance, nursing, &c. diminished it; and for this loss, he is entitled to recover.

The consequence is, that the judgment must be reversed, and the cause remanded.


author: COLLIER. C. J.

text:
    HILL vs. M'NEILL.
    1. Where, alter judgment and execution, one files his bill to enjoin the judgment, stating that he has off-sets — but alleging no surprise on the trial, or discovery of new facts — there is no basis on which the jurisdiction of chancery can rest, — and the bill will be dismissed.
    2. Yfhere one has off-sets to an action, which he can not prove without the aid of plaintiff’s testimony — he must exhibit his bill in chancery, calling for a discovery, previous to judgment; or else shew a satisfactory excuse for neglecting it.
    3. A bill, in nature of a bill for a new trial at law, is never entertained, where the party might have had the full benefit of a motion for that purpose at law.
    Error to Wilcox Circuit court, exercising chancery jurisdiction.
    Bill for injunction and discovery, tried before Cren-shaw, J.

    The plaintiff in error exhibited his bill on the equity side of the Circuit court of Wilcox county, alleging that the defendant had recovered a judgment against him, on which an execution had issued against his estate; and stating that the defendant, in the same character in which the judgment was obtained, was indebted to him in a sum larger than the judgment. The bill then prayed process of injunction and subpoena, until the matters of account could be adjusted in equity — both of which were awarded. The defendant was never served with sub-pcena; but Aaron Livingston, a party not named in the bill, or elsewhere upon the record, answered, by a general denial of the allegations of the bill, and an averment that he was the only person interested in the judgment at law. To this answer the plaintiff filed several exceptions — all of which were disregarded by the Circuit court, the injunction dissolve.!, and the bill dismissed.
    The correctness of the proceedings of the Circuit court was questioned here by the assignment of errors.

      Stewart, for the plaintiff in error.
   COLLIER. C. J.

The first enquiry which presents itself, in considering this ease, Is. do the facts, disclosed by the bill, authorise the interference of equity.

The plaintiff does not inform us why he did not avail himself of his sets off, on the trial at law. If the omission resulted from his inability to prove them, without the aid of the defendant's testimony, it was certainly incumbent upon him to have exhibited his bill, previous to the judgment calling for a discovery, or else show a satisfactory excuse for Paving thus long neglected it.

Again»: The bill is in the nature of a bill for a new trial at law, while it docs not at all account for the plaintiff’s neglect. Gash bilis ara rarely entertained in equity — certainly never, where a pa:ty might have had the full benefit of a motion for that purpose, at law. No sur-, prise on the trial — no discovery of new facts are pretended : there is, then, no basis .on which the jurisdiction of chancery can rest. The cases of Herbert & Kyle vs. Hobbs & Fennell. 3 Stewart’s Rep. 9; Moore vs. Dial, 3 Stewart’s Rep. 155; and McGrew vs. The Tombeckbee Bank, 5 Porter’s Rep. 547 — are conclusive to show, that the bill is entirely wanting in equity.

It is immaterial to consider the regularity of Livingston’s answer, or the exceptions to it, as the court very properly dismissed thebill. The decree is therefore affirmed.


author: GOLDT1IWAITE, J.

text:
    THE STATE vs. WHITWORTH.
    Í. The act of fourteenth January, eighteen hundred and twenty-six, (Aik. Dig. 298,) is repealed by the act of eighth of January/eighteen hundred and thirty-six, (Aik. ‘Dig. 2 ed. 624,) so far as the selection of grand jurors is provided for.
    2. By the last mentioned act, it is made the duty of the clerk of the Circuit court, and of the sheriff, under the superintendance of the judge of the County court, to select from the whole number of persons qualified to serve on juries, twenty-four persons, best qualified in their opinion, to serve on the grand jury.
    3. Therefore, a plea in abatement, framed with reference to the former act, and pleaded to an indictment, for exhibiting a gam-. ing table, found since the passage of the latter, is bad on demurrer.
    4. The act of eighteen hundred and twenty-eight, inhibiting gaming, covers the whole ground of the previous statutes, so far as the keeping, exhibiting, carrying on, or being in any manner interested in any gaming table or bank whatever, is fconcerned, and includes every offence connected with the ubjeet matter.

      5. And as it provides a different, and in some respects, a milder punishment for these offences, than the previous statutes; it • repeals them, so far as the same offences are provided to be pimished by it.
    6. A faro bank is within the words of the act of eighteen hundred atad twenty-eight; and the words “ gaming table,” and “ played with cards,” in an indictment for keeping a faro bank, may be regarded as surplusage.
    7. The statute provides, that it shall be sufficient for the indictment to charge, that defendant did keep and exhibit a gaming table, or bank for gaming, without averring or proving that money was won or lost or bet on such gaming table or bank.
    8. Where it is proved under an indictment for exhibiting a faro bank, that defendant did exhibit a faro bank, without stating that the exhibition was for the purpose of gaming — it may be inferred that the exhibition was for that purpose.
    Error to the Circuit Court of Tallapoosa.
    Indictment for keeping and exhibiting a faro hank, tried before Shortridge, J.
    The defendant was charged with keeping and exhi- ■ biting a gaming 'table, by an indictment, which was as follows:
    “ The State of Alabama, Tallapoosa county — Circuit court, October term, 1836. The grand jurors for the county of Tallapoosa, upon their oath present, that Richard W. Whitworth, late of said county, on the third day of October, in the year of our Lord one thousand eight hundred and thirty-six, in ¿he county aforesaid, did keep and‘exhibit a certain gaming table, called a faro .bank, played with cards, and kept for gaming, contrary to the statute, and against the peace and dignity of the State of Alabama.
    ■ “ G. D. SnoRTRiDGE, Solicitor of the
    Eighth Judicial Circuit.”
    The defendant pleaded two pleas in abatement, which were similar to each other, and alleged “ that the grand jurors by whom the said indictment was found, were not selected by the Judge of the County court,'the commissioners of roads and revenue, the clerk of the Circuit court, and the sheriff of the county, from the list of householders and freeholders, returned by the sheriff of Talla-poosa county, according to the provisions of the act,” &c. These pleas were demurred to by the Cíate, and the demurrer sustained. The defendant then pleaded not. guilty; was tried, convicted, and sentenced to pay the fine of one thousand dollars, and the costs of prosecution, and to remain in jail three months — without bail, and until the costs were paid.
    At the trial, it was proved on behalf of the State, that the defendant exhibited a faro bank, in Tallapoosa county, within’tweive months next before the finding of the bill of indictment.
    The counsel for the defendant then requested the court to instruct the jury, that a faro bank was not a gaming table, as specified in the statute, and that it was incumbent on the prosecutor, lo prove that the said faro bank was played with cards; which instructions were refused ; and the jury were charged, that if they believed from the evidence, that a faro bank was exhibited (by the defendant) in the county of Tallapoosa, within twelve months next before the finding of the indictment, they should find the defendant guilty in manner and form as charged, and that they might regard the words ‘ gaming table’ and ‘played with cards/ as surplusage. At the request of the defendant, the questions of law arising on the pleas in abatement, the charge of the court, as refused, and the instructions given, were reserved as novel and difficult, under the statute, in order that the same might be determined by the Supreme court.

      Attorney General, for the State.
   GOLDT1IWAITE, J.

— The pleas in abatement seem to have been framed with a direct reference to the act of assembly, passed the fourteenth .day of January, eighteen hundred and twenty-six, entitled ‘an act for the better selecting, drawing and summoning jurors’ — (Aik. Dig. 298.)

It is unnecessary to consider whether these pleas are formally pleaded, because at the time when this indictment was found, and when the grand jury must have been selected, a different mode than the one pointed out by the act of eighteen hundred and twenty-six had been provided by law, and tills act, so far as it governed the selection of grand jurors, had been repealed—(Act of 8 Jan. 1836, Aik. Dig. 2 ed. 624.)

By the last enactment, it is made the duty of the clerk of the Circuit court, and of the sheriff, under the superintendence of the judge of the County court, to select from the whole number of persons qualified to serve on juries, twenty-four persons, best qualified, in their opinion, to serve on the grand jury,” &c. The pleas in abatement, were therefore properly overruled.

The instruction to the jury, as well as those refused, involve the construction of the first sections of the acts of eighteen hundred and twelve, and eighteen hundred and twenty-six, and the fourth section of the act of eighteen hundred and twenty-eight, in relation to the offences of exhibiting gaming tablés, &c.

The section of the act of eighteen hundred and twelve, is in these Words: “Jf any person or persons shall be guilty of keeping or exhibiting any gaming; table, commonly called ABC, or E O, or roulette, or rowley pow-ley, or rouge and noir, or any faro bank, or any other gaming table of the same or like kind, or of any other description, under any other denomination whatsoever, or shall be in any manner, either directly or indirectly, Interested or concerned in any of the aforesaid gaming tables, bank or games, either by furnishing money or other articles, for the purpose of carrying on the same, being interested in the loss or gain of the said table or bank, or employed in any manner in conducting, carrying on or exhibiting said table or bank. Every person so offending, and being convicted thereof in the Superior court of law and equity of the proper county, shall pay a fine of not less than five hundred dollars, and not more than two thousand dollars, and shall stand in the pillory three days in succession, one hour each day”—(Aik. Dig. 210.)

So much of the section of the act of eighteen hundred and twenty-six, as requires examination, is in these words: “And if any person or persons shall, after the passage of thia.aet, by him or her, or themselves, or their agent, keep, or cause io be kept, any suchlable, bank, or other invention, by whatever name known or distinguished, for the purpose of gaming, or shall permit, or knowingly suffer the same to be kept, for the purpose , aforesaid, on his, her, or their premises, he, she or they so offending, shall, on conviction thereof, upon indictment, be fined in a sum not less than five hundred dollars, nor more than two thousand dollars, and imprisoned- not less than two, nor more than twelve months” —(Aik. Dig. 212.)

The fourth section of the act of eighteen hundred and twenty-eight, is as follows: “If any person or persons?• shall hereafter be guilty of keeping or exhibiting any gaming table called A B C, or E O, or roulette, or rowley powley, or rouge and noir, or shall keep or exhibit any faro bank, or shall keep or exhibit any other gaming table or bank of the like kind, or of any other description, under any other name or denomination, or without any name therefor, or shall in any manner be interested or concerned in keeping, exhibiting or carrying on any such table, bank or game, each and every such person so offending, and being thereof convicted, shall be fined one thousand dollars, and on failure to pay the same, shall be imprisoned (without bail) for three months”—(Aik. Dig. 212.)

It may be somewhat questionable, whether the act of eighteen hundred and twenty-six, is as general and extensive as that of eighteen hundred and twelve; but the act of eighteen hundred and twenty-eight covers the whole ground of both the previous statutes, so far as the keeping, exhibiting, carrying on, or being in any manner interested in any gaming tabie or bank whatever; and includes every offence connected with the subject matter, unless the furnishing' of money or other things to carry oil the same, without being in any manner connected by interest in the table, &c. is an offence intended to be punished by the act of eighteen hundred and twelve. As the act of eighteen hundred and twenty-eight provides a different, and in some respects, a milder punishment, for those offences, than the previous statutes, it must be held to repeal them, so far as the same of-fences are provided to be punished by it.

It cannot be doubted, that a faro bank is within the words of the act of eighteen hundred and twenty eight, and whether it be a gaming table or bank, is immaterial; both arc equally within the inhibition of the statute, and the only matter to be ascertained by the jury, is the exhibition for the purpose of gaming.

The Circuit court properly refused to charge the jury, that a faro bank was not a gaining table; and it was correct in deciding, that the words ‘gaming table,’ in this indictment, as well as ! played with cards,’ might he regarded as surplusage.

The sixth section of the act of eighteen hundred and twenty-eight, provides that it shall be sufficient for the indictment to charge, that the person indicted, did keep and exhibit the .gamin'' table or bank above specified, for gaming, without proving that any money was won, or lost, or bet, on such gaming table or hank, &c. The indictment, in the present instance, contains substantially these averments, although they are coupled with the immaterial allegation, that the gaming table was played with cards, and if the evidence was sufficient to warrant the charge of the court, the judgmeut must be sustained.

The proof was, that the defendant exhibited a faro bank. It is not stated that the exhibition was for the purpose of gaming — but must not such purpose be inferred, from the ordinary meaning to be attached to these terms? We think it must, it would be absurd, to suppose that a faro bank can be exhibited for any other purpose. A different purpose would change the character of the exhibition, and it would cease to be a foro bank or gaming table.

There is-no error in the decision of either of the questions referred to this court, and the judgment of the Circuit court is affirmed.


author: GQIfDTHWAITE, J.

text:
    HOBSON & SONS vs. EMANUEL et al.
    1. A written acknowledgment of service of a writ by a defendant, without proof of such acknowledgment, is not sufficient to sustain a judgment by default.
    2. But where parlies appear in court, the necessity of the actual service of process is dispensed with.
    o. And an entry on the record, that the parties came by their attorneys, &c. is sufficient evidence of their appearance.
    4., Where one of several defendants, sued as partners, pleads in 'abatement, and the jury find the issue for the plaintiffs, and .judgment, is rendered by the court, for the amount of the plaintiffs’ claim, the defendants cannot object in error, on the rendition of judgment against ail, on the issue formed upon the plea, the jury haviug found no damages.
    Error to Perry Circuit court.
    Assumpsit on two promissory notes, ágainst Baker Hobson, Nicholas Hobson and China Hobson, copartners, trading under the firm and style of B. Hobson & Sons. The service of the writ was accepted by defendants in the following words endorsed on the writ:
    “We do hereby acknowledge legal service of the within —this 28 Sept. 1836. B. Hobson & Sons.”
    To the declaration, Teseharner D. Hobson, who had been sued jointly with Baker and Nicholas Hobson, merchants, Sfc., in his own person, came and said that he was named and called Teseharner D. Hobson, and abs que hoc that he never was called China, which he was ready to verify, and prayed judgment, and that the writ might be quashed, &c. Plaintiffs replied that Tesehar-ner was often called Ohiner, as the name of Teseharner.

      And at Spring term, eighteen hundred aiid thirty^ Séveh, came the parties, by their attorneys, and likewise carne a jury, who said they found the issues for the plaintiffs. It was therefore considered by the court, “ that the plaintiffs the sum of twenty-five hundred and fifty-four dollars, the damages in the plaintiff’s declai’á-tio'fi mentioned, and also their costs of suit in this behalf expended, for which execution,” &c.
    And at Fall term, eighteen hundred and thirty-eight, came the plaintiffs, by their cornu el, and moved the codrt for direction to the clerk, to amend a clerical error of the Spring term, eighteen hundred and thirty-seven, of the fccuirt, so that judgment might be rendered nünc -pro mkc-, that the jury find the issues in favor of the plaintiffs, áñd assess their dama'ges, &c. The motion was granted, find it was considered that execution might issue, &c.
    To reverse the judgment, a writ of error was sued out. • I’he following errors were assigned:
    1. It does not appear that legal service of the writ; \tfas ever made upon defendants — or that they wéré iñ court,
    • 2. The court erred in rendering judgment ágaiñst all the defendants to the action for the damages, when ifi§ óhíy issue was upon the plea in abatement filed by 6ti& déféhdantj and the jury lffiving assessed no damaged'.

      Porter, for plaintiffs in error,

      Phelan, contra.
   GQIfDTHWAITE, J.

— if the judgment of the Circuit court was supported only by the acknowledgment of service, this, without proof, would he insufficient to sustain it, as decided by this court in Welch vs. Walker et ux. (4 Porter, 120;) but it_ is disclosed by the record; that at the trial term, “ came the parties, by their altor* rúes, and thereupon came a jury,” &c. Similar entries have been held sufficient evidence of the appearance of parties, and to dispense.with the necessity of actual service of process— (Gilbert vs. Lane, 3 Porter, 367; Lucy et al. vs. Beck, 5 Porter, 167.) The first assignment is therefore not supported by the record.

The second assignment can avail nothing. One of the defendants to the action, alone thought proper to contest the suit, and his defence did not extend to the merits of the cause. After the determination of the issue on thé plea in abatement, the actiou remained wholly undefended ; and, although it would have been more regular, to have entered a formal judgment of nil dicit, yet there is no substantial error in that wh cli was rendered. It was the privilege of the plaintiff to insist, that the jury should assess his damages, when they ascertained the issue in his favor, but the omission to do so, gave the defendants no rights, or if they were thereby placed in a condition to plead to the merits, they have not done so, and as no defence was interposed, after the determination of the only issue before4he jury, the court properly rendered judgment-for.the amount due on the notes.

The ame nled judgment is not attempted to be made the subject of revision, and notice of it is therefore unnecessary. Let the judgment be affirmed.


text:
    ADAMS et al. vs. M'MILLAN.
    1. The inference usually expressed in a declaration on a promissory note, “by means wheveo!” &e. is supplied by a statement of a promise to pay the note according to its tenor and effect.

      2. The omission to insert an allegation, that defendant, is liable to pay the not ■, is not a matter oí substance, to be reached by general demurrer, or on error.
    3. A promissory note is, in itself., a 1egal liability, and needs no distinct substantive allegation in the dec.oration, to entit'e a plaintiff to recover, apart from a description of tne note, and an allegation of non-payment.
    Error t.o the Circuit court of Dallas.
    Assumpsit on promissory note, tried before Pickens, J.
    The plaintiffs in error were sued in assumpsit, on a promissory note, in the Circuit court of Dallas, and judgment by default rendered against them. The only error relied on was, that “ the declaration is defective, in not stating a legal liability.”
    Gayle, for plaintiffs in error.
    Edwards, contra.
   COLLIER, C. J.

— -The declaration, "after setting out the promissory note, its delivery, &c. proceeds thus: “ and said defendants then and there, in consideration of the premises, promised to pay the money specified in said note, to said plaintiff, according to the tenor and effect thereof, yet said defendants have not paid,” &c.

It is objected, that this statement of a promise is not sustained by the inference usually thus expressed : “ by means whereof, &c. the said defendants then and there became liable to pay to the said plaintiff, the said note specified, according to the tenor and effect of said note.’* This allegation is inserted in most forms of declarations, where the action is against the parties primarily liable, as the maker of a note or acceptor of a bill; and though it may have been considered a formal allegation, the omission of which would be bad on special demurrer, it is clear, that it is not a mátter of sui.stance, to be reached by a general demurrer, or on error.

.The promissory note is in itself a legal liability, arid needs not a distinct substantive allegation to entitle a plaintiff to recover, apart from a description of the nóte, and an allegation of non-payment, &c. in the declaration —(Bayl. on Bills, 112, 362, note 1; Starkie vs. Cheeseman, Carth. 510, S. C.; Salk, 128; Anon. Hardre's Rep. 486; Bacon’s Ab. tit. assumpsit, F.; 1 Taunt. R. 217; act of 1812, Aik. Dig. 328; act of 1811, Aik. Dig. 283.)

There is no error in the record, and the judgment is affirmed.


author: ORMOND, J.

text:
    THE STATE vs. GARNER.
    1. The statute makes the vahío of property, maliciously injured or destroyed, the basis of the verdict under an indictment; and permits the jury to go to the extent of four fold its value; and the line thus assessed is lor the benefit of the injured party.

      %, An indictment, therefore, for maliciously injuring or destroying property, should contain an averment of the value of the property injured or destroyed.
    Error to the Circuit court of Montgomery.
    Indictment for malicious mischief, tried by Judge. A. Martin.

    This was an indictment against the defendant, for malicious mischief, in killing a mare, the property of one Henry Cannon.
    Issue being joined on the plea of not guilty, the jury found a verdict against the defendant, of 'two hundred dollars.
    A motion was made in arrest of judgment, on the ground that the value of the mare charged in the indictment to have been maliciously killed by the defendant, was not averred in the indictment; which motion, the court overruled, but reserved the point for the revision of this court, as one of novelty and difficulty.

      Attorney General, for the State.
   ORMOND, J.

— The statute on. which this, indictment is.,founded, is to tt)e following effect:

“ From and after the passage of this act, any person or persons, who shall unlawfully, maliciously and wilfully, kill, wound, or disable any horse, mare or gelding, colt or filly, jack, jennet or mule, or any goat, sheep or cattle, or any hog, or live slock, of any kind or description whatever, belonging to any other person or persons, or shall, &c.; every person or persons so offending, shall, on conviction of any of the aforesaid offences, by sufficient and satisfactory testimony, in any Circuit court having jurisdiction of the same, be fined in such sum as the jury trying the same may assess, not exceeding four fold the value of the properly injured or destroyed, and imprisoned in the common jail of the county, any length of time, at the discretion of the jury trying the case; which fine shall be paid to the party injured.”

In indictments for larceny, it is necessary to allege the value of the property stolen ; not only to designate whether the offence is grand or petit larceny, but also because the owner is entitled to restitution,.of the value of the goods stolen, if the goods themselves cannot be had. It would seem that the same reason would hold in this case. The statute makes the value of the property ma-' liciously injured or destroyed, the basis of the verdict, and permits the jury to go to the extent of four fold its value; and the fine thus assessed, is for the benefit of the injured party.

It is, therefore, a quasi civil proceeding, prosecuted by the State for the benefit of the person whose property has.been thus maliciously injured or destroyed, and it would be more conosnant to the rules of pleading, and to the principles which govern analogous cases, that the indictment should contain an averment of the value of the property. For this defect,, the judgment should have been arrested. The judgment of the court below is therefore reversed.


author: ORMOND, I.

text:
    SIMS vs. THE ADM'R OF SIMS.
    1. Delivery of possession is an essential ingredient in a 'gift of personal property, but a change of possession is not indispensable.
    2. Every delivery of a chattel, with intent to give it to another, operates a legal change: of possession, and transfers dominion over the subject of the gift to the donee.
    3. The fact that a slave given by a parent to a child remains at the residence of the donor, may be explained by the circumstance, that the residence of the donor is also that of the donee:
    4. And is a proper subject for the consideration of a jury, when enquiring iuto the truth and reality of the gift.
    Error to the Circuit court of Dallas county.,
    Detinue for slaves, tried by Harris, J.
    The action was detinue, brought by the plaintiff in this court. On the trial, in the court below, a bill of exceptions was tendered to the opinion of the court, from which it appeareri-that it was in evidence before the jury, that B. Sims, the father-of the plaintiff, at a public sale, at his house, in-the presence of several persons, called the negro girl, Rachel, (now in dispute,) and the plaintiff, before him, in the yard, and called on the persons present, to witness that he gave said negro to the plaintiff.
    It was also in proof, that the negro had been previously sold, to one of the persons present, which contract was rescinded at the instance of the father, to enable him to make the gift to the plaintiff.
    It was further proved, that after the gift, the negro girl and the plaintiff remained together, the former in the possession, and the latter in the family of B. Sims, her father, until his death. After the death of B. Sims, the said negro girl and her child were taken possession of by the defendant, as administrator of B. Sims,'in whose possession they now remain.
    Upon this evidence, the court charged the jury, that a .delivery and change of possession was absolutely necessary to the validity of a gift, and if the jury believed there had been no such change of possession, the gift was absolutely void, and it was their duty to find for the defendant. This charge was excepted to.
    There was a verdict and judgment for the defendant, from which the plaintiff prosecuted a writ of error, and now assigned for error the charge of the court.

      J. 23. Clark, for plaintiff in error.

      Edwards, contra.
   ORMOND, I.

— It is desirable, that in all cases presented to this court for revision, the points intended to be raised, should be distinctly presented on the record, so as to. leave no room for doubt or misconstruction. In this case, although the point is not presented so clearly as is desirable, yet we tliiak from the context, we can arrive at it with reasonable certainty.

The charge of the court must be considered in connection with the evidence, and thus consclered, there can be no doubt that the jury were misled by it.

It is certain that delivery of possession is an essential ingredient in a gift of personal property. But when the court charged i! Unit a delivery and change of ¡possession was absolutely necessary to the validity of a gift, and that if there had been no such change of possession, the gift was absolutely void the jury were authorised to infer, and no doubt did infer, that the gift was invalid, even if the delivery was proved, because the negro after-wards remained with her former master. The gift was complete at the instant of delivery, and if any argument had been urged against the fact of delivery, because the slave remained with the- donor, her former master, the court should have left it to the jury to determine whether that circumstance was not explained, by its being also the home of the donee. This, we think, the jury were precluded from doing, by the emphasis which the court seem to have given to the fact of possession in addition to delivery, as being necessary to constitute a valid gift.

The cases of Goodwin vs. Morgan, (1 Stewart’s Rep. 278,) and Frisbey and wife vs. McCarty (1 Stew. & Por. 56,) do not militate, in the slightest degree, against the principles here laid clown. The term “ change of possession,” is a mere paraphrase of the word delivery ; for every delivery, with intent to give, operates a change of possession, and transfers dominion over the subject of the gift to the donee. What facts or circumstances would in law amount to a delivery of personal property, so as to consummate a gift, is a question we are not called on to determine.

The judgment must be reversed, and the. cause remanded for a new trial, not inconsistent with this- opinion.


text:
    FINDLEY et al. vs. RITCHIE.
    1. Process must be construed in reference to the law which provides for its issuance and return.,

      2. The act of eighteen hundred and seven, (Aik. Dig. 278,) provides, that where a writ is issued five days before court, it is regularly returnable to the next term; and it makes a writ abateable, if it be returnable at a term beyond that next to be holden.
    3. A writ issued on the third of January, eighteen hundred and thirty-eight, and returnable on the fourth Monday in January next, is not illegal; and the word next in the writ, may refer to the fourth Monday next after its date, and not to Janua-íy, eighteen hundred and thirty-nine.
    Error to the County court of Wilcox.
    Assumpsit on promissory note.
    In this case, the County court of Wilcox, on motion of the defendant’s attorney, at the term holden in January, eighteen hundred and thirty-eight, quashed the plaintiffs’ writ, which was issued on the third day of January, eighteen hundred and thirty-eight, and made returnable in its body, as follows: “ before the honorable the County court, to be holden for Wilcox county, at the place of holding said court, on the fourth Monday in January ■ next.” . • ' • • '
    The only question raised upon the record, was, whe-. ther the word “next,” referred to January, eighteen hun-. dred and thirty-nine, or to the fourth Monday next after the date of the writ.

   COLLIER, C. J.

— By an act passed as early as 1807, (Aik. Dig. sec. 111, p. 278,) it is enacted, that all process “ in any court of the' territory, (except subpoenas for witnesses, which in term time may be made returnable immediately,) shall be issued by the clerk of such court, and shall be returnable to"the first day of-the term, and shall be.executed at least five day&before the return thereof ; and if any person shall take out any. writ 'or- process while such court is sitting; or within five days before the beginning of the term, such writ or process shall be made returnable to the term next after.that thén held', or to be held: within five days as aforesaid, and not .'otherwise :■ and all writs of process, issued, made returnable, or executed in any other manner, or at any other time, than -is herein before directed', may be-abated on the pleia, of the defendant.”

This statute makes abateable, the- writ in the case at bar, if it be returnable at a-term-of the County court, beyond that next to be holder! . If the question were res integra,.we should • not consider it one of .any intrinsic. difficulty, yet it has been so greatly perplexed by the opposing opinions of learned judges,-that we have felt not a little embarrassed in striking out a course satisfactory"' to ourselves.

In Bunn vs. Thomas & King, adm'rs, (2 Johns. R. 190,) a question somewhat mini:.sous was raised. There a writ was issued, bearing teste the twelfth day of May, eighteen hundred and six, and made returnable on the seventeenth day of May nrc:!. It was contended, that as the writ was returnable in I,lay, eighteen hundred and seven, it was absolutely void; and so the court decided. (To the same effect, is 1 Dunlap’s Prac. 117, 140; and Burk vs. Barnard, 4 Johns. R. 3 9.)

But Scott vs. Adams, (12 Wend. R. 218,) a later decision of the same court, than the'esses cited from Johnson, we think in direct conflict with them, and of consequence, overrules them. In that case, a capias was tested on the seventh day of July. eight can hundred and thirty-four, made returnable on the eighth (h^ of July úext; a motion was made to set it aside, on the assumption that more than a term intervened between its teste and return. The court denied the mol ion, and held that the “ eighth day of July next,” should he read “ eighth day of July next after the seventh day of July,'1 the teste of the writ. Thus stands the question, upon the authority of foreign courts, so far as we have had access to them.

Commencing with the decisions of our own State, to which wc have been referred, the case of Wallace vs. Hill, (Ala. Rep. 70,) is first in the order of time. There, the point was not as to Hie validity of prpeess in' the cause, but whether a promissory note, dated the fourth day of December, eighteen hundred and twenty, and payable “ on or before the .twevly-fifih day of December next,” was due in eighteen hundred and twenty, or in December, eighteen hundred and twenty-one. The court say, the most usual tvacl known signification of the terms employed defer the period cf payment to the twenty-fifth day of December, in the yec.r next succeeding the date of the note. This decision is clearly correct, yet we cannot perceive its analogy to the present case. Language must he interpreted according to tlic subject matter in respect to which it is used. It was entirely competent for the parties to have prescribed such time as they could agree on, for the performance of their contract, and there was nothing extrinsic to which the court could refer to ascertain its meaning. Low, it is confessedly true, that the term next, in the connection in which it is-found in the note, must, according to the moat usual and known signification of the terms, mean the twenty-fifth day of the next December, that is, December, eighteen hundred and twenty-one. In the case before us, the writ must be construed in reference to the law which provides for the issuance and return of process. That law, as we have seen, directs that where a writ is issued more than five days before court, it is regularly returnable to the next term, and if it be made returnable co a more distant term, it is abateable on plea by the defendant. Now, as the writ can only be regular, upon the hypothesis that the word next refers to the fourth Monday next after the third day of January, eighteen hundred arid thirty-eight, we should so interpret its meaning; unless in doing so, some rule of construction would be thereby violated. It is a rule in grammar, that “ the antecedent bears relation to what next follows, unless it destroys the meaning of the sentence.” By connecting next, with its antecedent, January, the meaning of the sentence, it is true, is not destroyed, but the process itself is made inoperative, a result which we'think may be avoided by a due regard to the subject matter, without disregarding; any settled principle. • • . .

In Gibson vs. Laughlin, (Ala. Rep. 182,) the writ issued on the second day of September, eighteen hundred and twenty two, and returnable .to the “next Circuit court to be held,” &c. “ on the first Monday after the fourth Monday in September next.” The court say, “At most, the term used, viz. ‘ September next,’ is one of double import.- The return of the writ is susceptible of being rendered sufficiently certain, by a reference to its date and the time of service.”

But in the Bank of Mobile vs. the State, (Ala. Rep. 290,) where a notice was issued on the sixth day- of" March, eighteen hundred and twenty-four, returnable “on the second Monday after the fourth Monday in March next,” the court held, that the notice- was defective, as being returnable to a term of the court beyond the one next succeeding its issuance.

In Brown vs. Simpson, (3 Stewt. Rep. 331,) a capias ad satisfaciendum appeared to - have issued on the 'first ■day of November, eighteen hundred and twenty seven, returnable to the next term of the court,-to be holden on the first Monday in January, eighteen hundred and twenty-seven. . And. the court, by a bare majority, determined that the process was void,- because It was returnable previous to its teste. This case, it may be remarked, is únlik.e the present; the decision did not depend' upon the interpretation of terms, yet it cannot be sustained; and the court should have considered the words “ next term of the court,” as controlling the time expressed for the return of the era sa, and. held it to have been then returnable.

And in Lyon vs. Malone, (4 Porter’s R. 414,) it appeared that a writ of error, sited to this court, expressed on its face no time for its return.. On motion to quash, the court said that the statute prescribing that it shall be returnable to the first day of the next term after its issuance, makes it thus returnable, and overruled the motion.

We have felt it due to ourselves, though the question is one seemingly of but little importance, to review the authorities cited at the argument, that ■ it may be seen that our conclusion is the result'of deliberation. The decisions of our own State, as well as those of others, are contradictory, and some of them, directly the opposite of each other. In such a state of things, we feel licensed to consider the question open to the operation of our own judgments, under the guidance of principle; and following the rules most approved by reason for the interpretation of language, we cannot doubt the legality of the writ, for the reasons already stated. We lay no stress upon the fact, that the judgment of the County court is rendered on a motion to quash, instead of putting the. defendant to his plea in abatement — as in'either form, it would be alike indefensible.

The judgment is reversed, and the case remanded.


author: PER CUEIAM.

text:
    BOURNE vs. THE STATE.
    1. The clerk of the Circuit court has no authority to issue writs of error in any criminal case: such writs must originate from an application to the Supremo court.

      2. And a writ thus improvidcntly issued, will be dismissed.
    3. The Circuit courts are prohibited from referring any question of law to the Supreme court, except such as are novel and difficult.
    4. A bill of exceptions was not allowed at common law.
    5. Where no intention to refer a case tot be Supreme court, is' apparent on the record — it must, pro defectu, be repudiated.
    Error to the Circuit court of Mobile.
    Indictment for Issuing a change bill, tried before Pick-ens, J.
    The indictment charged plaintiff in error, and one Williams, with having “ made a promissory note, and put forth the same as a change bill, as follows, to wit:

    contrary to the form of the statute,” &c.
    To the indictment, defendants demurred; which being overruled, they plead not guilty. Bourne was convicted, and Williams acquitted. To reverse tire judgment against Bourne, a writ of error was sued out.
    A bill of exceptions was taken at the trial, the points contained in which, arc set forth in the assignment of errors.
    The errors assigned were:
    1. That the indictment being on an instrument executed by two, the number of the parties, was a material point in the description of the instrument — -and the finding one not guilty, rendered the instrument improper evidence as to the other: and so the court should have instructed.
    2. That the paper having tiro name of Williams to it, as a subscribing witness, its execution could not be properly proved by any one else ; without the usual showing for dispensing with a subscribing witness.
    3. The eourt should have charged the jury, as requested, to acquit the defendants, if they were satisfied that the paper offered in evidence did not correspond with that described in the indictment;.
    4. That the court erred in its charge to the jury, that they were authorised to infer the offence was committed in Mobile county, upon the paper offered in evidence alone, Sec.

    Aiken, for plaintiff’ in error.

      Attorney General, contra.
   PER CUEIAM.

— The clerk of the Circuit court has no authority to issue writs of error, in any criminal case: in all such, the writs must originate from, an application to this court—(Lynes vs. the State, 5 Porter, 236.) As the writ has improvidently issued, it must be dismissed.

On looking into the record, we do not find that any points were reserved, under the statute, as novel and difficult, for the revision of the Supreme court. It is true, a bill of exceptions was signed and sealed by the presiding judge, but the statute prohibits the Circuit courts from referring any question of law, except such as may be novel and difficult; (Aik. Dig. 257)—and this court determined, in the case of Ned vs. the State, (7 Porter 187) that at common law, a bill of exceptions was not allowable.

In the case of the State vs. Prince, (3 Stew. & Porter, 253,) it is said “ this court will not be particular as to the manner in which the questions are referred, if the intention to refer be shown in the record.” No such intention appears, and the entire case must be repudiated.


author: QRI/IOGD. 7.-

text:
    THE STATE vs. HAWKINS.
    1. Ill larceny, the criminal intention constitutes the offence, and . is the only criterion by which to distinguish a larceny from a trespass.
    2. To constitute larceny, it is not sufficient that the goods be taken for the purpose of destroying them ; as, if one take the-horse of another, for the purpose of destroying him, to injure his neighbor — and should destroy him — this would be malicious mischief, but not- larceny.
    3. Where a defendant' assisted in secreting a slave, to the end that she might escape from her master, and obtain her freedom, but there was no intention to convert the property to the . use of the defendant — an indictment for larceny could not be sustained.
    Error to .Mobile Circuit court.
    Indictment for stealing a slave, tried by Judge Pickens. This was an indictment found against the prisoner, in the Circuit court of Mobile county, for stealing a slave.
    There was a verdict against the prisoner, on the plea of not guilty,, and judgment pronounced against him.
    On the trial of the cause, a bill of exceptions was taken, which was as follows: “Be it remembered, that on the trial of this cause, it was proven on behalf of the State, that the defendant had taken the negro-slave, Jane, out of the possession of her master, and had attempted to place her on hoard a certain vessel called the brig Martha, then just about sailing for a northern port, with a view of enabling said slave Jane to secure her freedom, by going to a free, or non-slaveholding State.
    It was further proven in behalf of the State, that ha-viüg failed to fe: 1 ;h : ¡;S0 brig hu'.rtba, (which had dropped c’c.v/11 V. -¡ 0“ account oí the darkness of ¿lie,night, and the do nelly oí. the fog,- — the defendant concealed in the fcrccx.tio of the schooner Eclipse, (on which he was coc) the cari clave Jane, for several days, for the purpose of crablirg her to make her escape to a free, or o on-slaw d!or'h-p Linio.
    The judge dwrgcd the jury. Cat if the evidence satisfied them that the irking end currying away, was with the motive of taring the dr.ro to c free Ctcte, that she might ce joy freedom, suck motive was suiTicicnt to constitute larceny.
    The"question cf law coining out of the evidence, and the charge of the court, was by the judge referred to this court as novel and dihlcmt.

      Aiiornay Genera;. for the Girds.
   QRI/IOGD. 7.-

Ti.,: judgment, in in’s case, is founded on a statute of thin Otate, tobe found in /Jken’s Digest, 103, sec. 19. “If any person or persons, shall steal any negro or mulatto slave whatsoever, out of, or from the possession of the owner cr overseer of such slave, the person or persons so offending, arc hereby declared to be •felons, and chalí suffer death/’

The single question presented by the record, is,, whether the facts given in evidence on the trial in the court below, and from -which, under the instruction of the court, the jury found the prisoner guilty, v/eie sufficient to warrant his conviction on this indictment, for stealing the slave therein mentioned.

The evidence eslablAh'-s the fací hayond a'!! doubt^ that the'prisoner Aki ;:R kkw;J io convert tito negro to his own use, but tint the taking wav; to enable her to make her escape to ;i Aug Cíate: upen v,n Ah the court charged the jury, that 1Í the menea of ti e prisoner, in taking the clave, we.:: to or:a:ha he; to escape to a free State, that she might enjoy freedom, such motive was sufficient to constitute I.an.my.

We will proceed to cxnfine whether a larceny can-he committed without the furcr.di; the intention to convert the subject of the larceny to the use o-f the taker.

Biacksione defines larceny to lee t’no uf¿c¡:t<n:s taking and carrying away the goods of another'’ — (4th Book, 230.) This iahing'aad carrying away, he says, must also be /e'enkw, LLh.t is, dene cn::s¿:rt /¿'retid!; or, as the civil law espy exes ii, Aver; ee::au. It lo taco thus defined by Lord Coke, in ids Institutes, ana by Hawkins, in his Pleas of the Crown—(1 Hawk. 93.)

This definition has been objected to, as not being sufficiently certain, — the wordykAnAw itself, requiring a definition; and Ameboid submits the following : “Larceny, as far as respects the Intent with which It is committed, (and the intent ’.'.ere, Is a material part of the of-fence,) may perhaps bo correctly defined thus: whei*e a man knowingly lakes and carries away tlio goods of another, without any claim or pretence of right, with intent wholly to deprive the owner of them, and to appropriate or convert them to bis own use.” And'Chief Justice Eyre, iu-Bears'cess,, defined tiro offence thus: “ The wrongful taking of goods, with intent to spoil the owner of them. Inert rarsc.'' »

It is apparent from the definition, and is so expressly laid down in the books, that the criminal intention constitutes the offence, and is the only criterion by which to distinguish a larceny from a trespass. According to this definition, to constitute the offence, it is not sufficient that the goods be taken for the purpose of destruction, as, if one should take the horse of another, for the purpose of destroying him, to injure his neighbor, and should destroy him, such an offence would be punishable as malicious mischief, but it would want one of the essential ingredients of larceny, the lucri causa, — the intention to profit by the act — by the conversion of the property.

This is the ancient doctrine of the common law, but it has been recently called in question by several decisions made by the English Judges, which will be now noticed, as it was probably under their influence that the decision of the court below was made.

In the case of the King vs. Cabbage, (Russel & Ryland, 292,) a prisoner, to screen his accomplice, who was indicted for horse-stealing, broke into tbe prosecutor’s stable, and took away the horse, which he backed into a coal pit, and killed; and it was objected at the trial, that this was not larceny, because the taking was not with an intention to convert the horse- to the úse of the taker, animus furandi et lucri causa; seven of the judges held that it was larceny, and six of that majority were of opinion, that to constitute larceny, it was not essential that the taking should be lucri causa] if it he fraudulent, and with intent wholly to deprive the owner of his property. _ But some of this majority thought that the object of the prisoner might he deemed abenefit, and (he faking, lucri. causa.

Also, in the ease of the King vs. Morfet and others, "where the prisoner’s servants in husbandly, opened the granary of their master, by means of a false key, and took thereout two bushels of bc-ans to give to their master’s horses, in addition to the quantity usually allowed; this was held larceny, by a majorily of the judges; hut it was alleged by some, of the judges, that the additional, quantity of beans would diminish the work of the men who had to look after the horses, and therefore, the lucri causa, to give themselves ease, was an ingredient of the offence.

It appears to us, that these cases cannot be considered authority in this country. The shadowy, and almost imaginary distinctions upon which they rest, are at war with that precisión and certainty which is the boast of the criminal law of England. It is also to be remarked, that they are decisions made by a bare majority of the judges; and of that majority, a considerable portion, for reasons, it is true, which ¿o'not seem entitled to much weight, held that the lucri causa was present in those cases.

In the case at bar, it is very clear, that the intention was apparent to do the owner of the slave an injury, by depriving-him of his property ; but we cannot see how the prisoner was himself tobe beueñtíed, by aiding the slave to obtain her freedom. There being, therefore, no intention to convcrfthc slave to his own use, — he cannot, from the view we take of the case, be found guilty of larceny.

We are grcatly’strengthoned in the view we have taken of this case, from the legislation of the slaveholding States on this subject. In the States of Kentucky, South Carolina, North Carolina, and, as we are informed, in other slaveholding States, the crime of taking a slave, without the consent of the owner, with intention to convey him beyond the limits of the State, is specially provided for, in addition to penal enactments for stealing a slave. We are, therefore, of opinion, that the indictment, in this case, for stealing a slave, cannot be supported, on the evidence contained in the bill of exceptions.

The judgment of the court below, is therefore reversed; but the prisoner is to remain in custody, until the next term of the Circuit court, to be held for the county of Mobile, unless delivered therefrom, by due course of law, to enable the solicitor for that judicial circuit, to prefer an indictment against him for harboring or concealing the slave Jane, in this indictment mentioned, or for a conspiracy to deprive the owner of the said slave of his property.


text:
    MOORE vs. PHILIPS.
    1. Where a defendant appears in court by an attorney, it is immaterial whether the process was served or not: an objection arising from a defective service of-process, is waived by a general appearance.

      2. Where the record discloses, that the parties came by their attorneys, and' judgment,by default was taken, not because of defendant’s non-appearance, but for an omission to plead, an objection that defendant was not legally served with process, will be .unavailable.
    Error to the Circuit court of Monroe.
    .Assumpsit on note, tried before Shortridge, J.
    On the the twenty-sixth of September, eighteen hundred and thirty-six, the defendant in error caused to be • issued against the plaintiff, from, the clerk of the Circuit court of Monroe, a writ in usual from, with a cause of action thereon, endorsed in these words :
    “ This action is founded on an instrument in writing, of which the following is a copy : ‘-on the first day of January next, I promise to pay John Philips, or bearer, the sum of one hundred and fifty dollars, for value received. November 20th, 1835.
    (Signed.) • J. W. Moore.’”
    On which the plaintiff made the following acknow-ledgement and agreement: “ I acknowledge service of this writ, and agree that it shall not be placed on the appearance docket, at October term, but shall be placed . on the trial, docket, and stand for trial at the March term, 1837. September 27th, 1836. • John W. Moore.”

      At March term, eighteen hundred and thirty-seven, the following entry was made in the case : “ This day came the parties, by their attorneys, and the plaintiff claims judgment by default final, for want Of a plea; whereupon, there being no pica tiled within the time limited by the rule of court, and the statute in this lehalf, — it is therefore considered by the court now here, that the plaintiff do recover,” esc.
    Porter, for plaintiff in error.
    Stewart, contra.
   COLLIER, C. J.

— The only error relied on, is, that there is no evidence of the service of process on the plaintiff in error, to authorise the judgment rendered against him.

In Welch, adm’r, vs. Walker and wife, (4 Porter’s R. 120,) it was held, that an endorsement upon a writ of an acknowledgment of service, without proof that it was the act of the party purporting to have made it, would not sustain a judgment rendered against a defendant., who did not appear in the case. That case, however,'is not decisive of the one at bar; for here, the record expressly discloses, that the parties came by their attorneys, and that the judgment by default, was not claimed because "of the defendant’s non-appearance, hut Tor his omission to plead. The plaintiff in error, then, having appeared in court,by attorney,it is immaterial whether process was served or no, as it is waived by a gene ral appearance. (See Hobson & Sons vs. Emanuel & Gaines, at this term.) The judgment is affirmed.