text:
    M’GRAW vs DAVENPORT AND WIFE.
    I- Where a testator gave to his wife a life-estate in certain ne-groes, and then proceeded to declare, that at her death, the negroes mentioned, should be equally divided, by valuation, between his two daughters, and added — “dr should either of them (the daughters,) die without issue, the other is to get the whole of the negroes, and their increase,” — it Was held, that the time when the bequest over was to take effect, was, at the death of the wife, and that upon the death of the wife, the property vested absolutely in the two daughters : — in other words,— ,
    2. That the two daughters took vested remainders in the ne-groes, subject only to the contingency of their not living to enjoy; and being both alive at the death of their mother, the contingency never happened, and the property vested absolutely in them.
    3. Touching the construction of wills, all the cases agree, that the words 'die without issue, when used in a will, as a limitation over of personal property, unexplained or controlled by any other circumstance, or language in the will, indicating a different intention, — import an indefinite failure of issue, and create a perpetuity, which is not permitted, and the effect of such limitation is, iu law, to vest the entire property in the first taker:
    4. Nevertheless, an irreconcilable diversity exists, 'in relation to the language or circumstances found in other parts of a bequest or will, which shall be sufficient to indicate the intention to confine the limitation over, to a dying without issue, at the death of the first taker.
    5. If the distinction made in reference to lands and personal property in Forth vs Chapman,

       were true, but which is doubtful, — the distinction fails when applied to a mixed bequest of male and female negroes, or of female negroes only.
    6. The rule in Shelly’s case, is merely’a sacrifice of the particular, to the general intent of the testator.
    Error to the circuit court of Autauga County.
    Action on the case. Plaintiffs at the September term, eighteen hundred and thirty four, of said court, declared against the defendant, for that whereas the said defendant, whilst Louisa, one of the plaintiffs, was sole and unmarried, to wit, on the first day of January, eighteen hundred and thirty three, at said county, was indebted to said Louisa in the sum of twelve hundred dollars, for money before that time had and received, by the said defendant for her use, and being so indebted, in consideration thereof, promised to pay the same when requested, And also, that said defendant on the day and year mentioned, was indebted to said plaintiff, Louisa, she being then sole and unmarried, in the further sum of twelve hundred dollars, for money before that time by said. Louisa lent and advanced to defendant. And being so indebted, he, defendant, on the day and year aforesaid, undertook and promised the plaintiff, then sole and unmarried, to pay the same on request — all of which he had failed in doing, &c.
    To this declaration defendant pleaded, non-assump-sit, a set-off", and the statute of limitations.
    And at the spring term of eighteen hundred and thirty six, of said court, a jury came, who being elected, tried and sworn, well and truly to try the issue joined between the parties, upon their oaths said, they found for the plaintiffs, and assessed their damages at fifteen hundred and sixty dollars: It was therefore considered by the court, that the plaintiffs recover of defendant the said sum of money, so assessed by the jury, together with the costs in this behalf expended, for which execution might issue, &c. From which judgment there was a writ of error, &c.
    The bill of exceptions stated that on the trial of the suit, plaintiffs produced and offered to read in evidence, a copy of the last will and testament of William McMorris, a copy of which was appended to the bill. -Defendant’s counsel objected to the introduc- ' tion of said copy, as evidence, on the ground, that the same was not authenticated in the mode required by the act of Congress on the subject, and the said copy,, as the same was produced, was not evidence. This objection the court overruled, and permitted the evidence, so certified, to be read to the jury. The plaintiffs then proved that after the death of William Mc-Morris, a joortion of the slaves named in the said will, and bequeathed to Cynthia and Louisa McMorris, came into the possession of the said Cynthia, as a part and portion thereof, under the said bequest, and after she was so possessed of the said slaves, she intermarried with defendant, and that the said slaves passed into his possession. That the said Cynthia afterwards died in child-bed, the child being still-born. That after-wards the defendant offered to deliver the slaves, so secured, to the said Louisa, and tendered, them to her. That she refused to receive them, and did not receive them, and was then of full age. The defendant also proved by Thomas Stone, that said Louisa lived a his house, and that Stone informed her that he ws about to purchase said slaves of the defendant,, ant. that she expressed her approbation, and said she was glad of it, as they were getting a good home. The plaintiff proved that afterwards the defend ant purchased the interest of the witness in the mercantile firm of Stone & Parsons, incurring also the liabilities of the said witness for the debts of said firm; that in payment of said purchase, the witness received of the defendant several slaves; and amongi others, the slaves bequeathed and allotted to the said Cynthia, as above stated; that .no money was paid to the defendant. Said slaves, so bequeathed, were estimated at twelve hundred dollars, and they were received on the express condition, that the defendant had a right lo redeem them, on paying' the witness twelve hundred dollars, at any time within three years after the contract. That the contract of sale or barter, was made in the month of July, in the year eighteen hundred and thirty two or thirty three. There was no evidence adduced of any money having at any time come into the possession of the defendant from the sale or barter of said slaves, nor as to the stale or condition of the said firm of Stone & Parsons; "whether it was involved in debt and had failed, or whether said firm had prospered and haul realized pay or profits on the calcs of the stock, for which the said shiver, were sold or bartered: nor was any evidence given to shew whether said slaves hod been redeemed or not, under the contract above staled. There war, no evidence adduced to shew that a demand had. at any time been made of the defendant of the said slaver, or of the sum or value at which they were estimated; at the time they were sold or bartered as aforesaid, to the said Stone; hut proof was made, that after-wards, said negroes were seized by plaintiffs, and were recovered by Thomas Stone in a suit against them. On this testimony the court charged the jury, that if they believed that the said Cynthia and Louisa survived the testator, and that the said Cynthia after-wards received into her possession, her moiety of the slaves named in the said bequest, and died without issue in being, leaving the said slaves in possession of the defendant, that then the said Louisa became entitled to said slaves;, and that if they should further he-lleve that the said McGraw, had sold or disposed of said slaves in payment or satisfaction of a stock of gpods, or an interest in a mercantile firm, and that tliey were estimated at the value of twelve hundred dollars —they were authorised to find that amount for the plaintiffs, and interest thereon from- the time of such sale; and that the said Louisa had not divested herself of her interest in said slaves by the conduct stated.
    Defendant then asked the court to charge the jury, that if they should find, from the evidence, that the wife cf the plaintiff, before intermarrying with the plaintiff, she being of full age, had made a verbal gift of the slaves so bequeathed and claimed, and had refused to receive them when tendered to her, that then it was in law a valid disposition. This charge the court refused to give, and charged, that the conduct above described, on the part of the said Louisa, did not transfer or convey her interest or right in said slaves. The defendant then requested the-court to charge the jury, that if they believed from the testimony adduced, that the slaves bequeathed to the said Cynthia, had been disposed of for an uncertain interest, to wit, a share in a mercantile firm, and to incur the liabilities of the-member of the firm with whom he contracted, the amount of such liabilities not being ascertained, and no proof of money having been received by the defendant, that ilion the action for money had and received, could not be maintained. This charge the court refused to give. The defendant then requested the cou’-’t to charge- the jury, that if they should, from the evidence, believe that the sale of the slaves made by the defendant to Stone, was a conditional sale, the defendant having the right to redeem the slaves at any time within three years from the time of' the sale; and if the term in which the defendant had the right to redeem said slaves had not expired before the commencement of this suit, that then the suit could not be maintained — which charge the court refused to give. The defendant’s counsel then requested the court to charge the jury, that in this action, no demand of payment having been proved, they could uot allow interest on the sum for which the-slaves had been sold from the time of the sale; which the court also l'efused. To all which charges, &c. the-defendant excepted.
    The last will and testament of William McMorris, was dated the twenty-fifth of February, eighteen hundred and twenty three, and admitted to probate in the court of Ordinary of Fairfield District, South Carolina, on the twenty fourth day of October, eighteen hundred and twenty five.
    The copy of the will and its probate, received in evidence on the trial of the case, was authenticated as follows: “Ordinary’soffice, Fairfield District: I, John R. Buchanan, Ordinary of Fairfield District, South Carolina, and presiding judge of the said court of Ordinary, to which court of Ordinary there is no clerk, do hereby certify that the foregoing contains a full transcript of the proceedings in said court, upon the probate of the will of William McMorris, deceased; and that this attestation is in due form of law. Witness my hand and the seal of said court, this-day of- — A. D. 1835.
    (Signed) John R. Buchanan, Ordinary.”
    The will provided, that all the just debts of the testator should be paid out of the last year’s crop of cotton, then on hand, and the present year’s crop, with such of bis stock, household furniture or plantation utensils, as the executor might think proper to part with for that purpose; and if the above mentioned, property was not sufficient to satisfy the debts, he allowed a negro man named Xshmael to be sold, and the proceeds arising from such sale, or a part thereof, as the case might require, tobe applied to the discharge of his debts.

      He bequeathed to his wife, E. M., whatever balance aright remain of the price of the negro man, after the debts were paid, or should there be sufficient to pay the debts without selling the negro Ishmael, then the said negro to be her’s, to dispose of as she might think proper. He also gave to his wife, during her life time, three hundred and fifty-four acres of land, part of the tract on which he lived, and six negroes, to-wit, Clary, Moll, Maria, Silvey, Phillis and Charlotte, to be her’s during her lifetime: also the stock, furniture and plantation tools, such as should not be sold to pay debts, to be her’s, to dispose of as she might think projier, for the support of the family, or otherwise to be given to the children at her discretion.
    He bequeathed to his son, W. M., at the death of his wife, a, negro boy Willis, and should his said son, W. M., die without issue, he allowed the negro to go to his son JtL W. M. He bequeathed to his son IX. W. M. one hundred and thirty acres of land, the north end of the tract on which he lived, and at the death of his wife the three hundred and fifty-four acres, bequeathed to her during her life. He also gave to his son H. W. M., at the death of his wife, the negro girl Charlotte; and her issue should she have any, to W. M.
    He bequeathed to his daughter, Louisa M., when she married or became of age, a negro woman named Silla, and her second child, named Creecy, with any other issue she might have, to be her’s during the life of his wife. He also gave to his daughter, Cynthia M,, when she married or became of age, a negro girl named Nan, with her issue, should she have any, during the life time of his wife. And at the decease of his wife, he allowed part of the negroes above mentioned, namely, Cl ary, Moll, Maria, Silvey, Siller, Creecy and Nan, with their increase, should there be any, to be equally divided, by valuation, between his two daughters, Louisa and Cynthia, or should either of them die without issue, the other was to get the. whole of the seven negroes and their increase. Should there remain on hand at the death of - his wife, any thing of the stock, furniture, and plantation tools, &c. undisposed of by his wife, he allowed whatever remained to be equally divided, by valuation, between his two daughters, Louisa and Cynthia, or should either of them die without issue, the other was to get the whole of the stock, household and kitchen furniture, plantation tools, &c. not disposed of by his wife.
    Having given to his son-in-law, J. M., the husband of his daughter J., deceased — to his son-in-law, P. C.,. the husband of his daughter M.; and to another son-in-law, the husband of his daughter li., deceased, what he thought to be their equal dividend of his estate, he deemed it unnecessary here to mention them further. He then appointed executors, and revoked all former wills, &c.
    The plaintiff in error here assigned for error, the charge given as contained in the bill of exceptions, and the refusal to charge as therein requested..

      Thorington, for the plaintiff in error.

      Goldthwaiie Sf Campbell, contra.

      1 P. Wms. 663.

      1 Salk.

   ORMOND, J.

The. father of Mrs. Davenport, made his last will, by which he bequeathed certain negroes to. his wife, during her life, and at her death, to his two daughters, Louisa and Cynthia, by a clause in the following words — “At the decease of my wife, I allow a part of the negroes, above named, and bequeathed, viz: Clary, Idol!, Maria, Silvey, Siller, Creecy and Nan, with their increase, should there be any, to be equally divided, by valuation, between my two daughters, Louisa and Cynthia; or should either of them die without issue, the other is to get the whole of the seven negroes, and their increase.” The wife of the testator died, and the negroes were equally divided between the two daughters, before their marriage. The plaintiff in error mar-sled Cynthia, and the defendant in error Louisa. Cynthia died, and her husband, the plaintiff in error, sold the negroes which were allotted to his wife. The action in the Court below, was brought to recover the price of the negroes. On the trial, the Court charged the jury, that if they believed, that the said Cynthia and Louisa survived the testator — that the said Cynthia af-terwards received into her possession her moiety of the .said slaves, named in the said bequest, and died without issue in being, leaving the .said slaves in the possession of the defendant, that then the said Louisa became entitled to said claves. Several other charges were given on other points raised in the cause, but the view we take of the case, renders it unnecessary to consider them. The charge above given was excepted to, and is now assigned for error.

The counsel for the plaintiff in error contends, that the limitation over, after the death of the first taker, being after an indefinite failure of issue, is void; and that the entire property vested in the first taker. The ■counsel for the defendant in error, maintained the converse of this proposition, and insisted, that the limitation over, was not too remote, hut was good by way of ex-ecutory devise.

All the cases on this subject, (and they are very numerous,) agree, that the words “ die without issue,” when used in a will, as a limitation over, of personal property, unexplained, or controlled by any other circumstance, or language in the will, indicating a different intention, do import an indefinite failure of issue. If this were allowed, the consequence would he, to tie up the property bequeathed, and render it unalienable for an indefinite period of time; thereby creating, what, in law, is called a perpetuity. This being against the policy of the law, is not permitted; and the effect of such a limitation, is, in law, to vest the entire property in the first taker.

But although the decisions on the effect of the words above cited, without any explanatory language, or circumstance, in the will, evincing a different intention on the part of the testator, have been uniform, yet an irreconcilable diversity is found to exist both in England and the United States, on the language, or circumstances, found in other parts of tliebequest, or of the will, which shall be sufficient to indicate the intention, to confine the limitation over, to a dying without issue, at the death of the first taker. Some of the earlier cases, have proceeded on the character of the property bequeathed ; and while they held the words in question, to import an indefinite failure of issue, when the subject matter of the devise was land, when the same words came to operate on personal property, they ruled, that from the transitory and fleeting nature of personal property, it was unfair to suppose, that an indefinite failure of issue was intended; and construed the words to mean, a dying without issue at the death of the first taker.

The case of Forth vs Chapman is one of the leading cases in which this distinction was taken; it has been since followed by many other cases, and again repudiated by names of equal authority, and greater in number. The argument in this aspect, has been strongly pressed by the defendants counsel, and although we are not prepared to say that the distinction is well founded, yet, if it were true in relation to personal property, in general, its application fails, when applied to a mixed bequest of male and female negroes; or as in this case, of females only. The laws impressed on the human, race, by the Creator, for its preservation, render it at least reasonably certain, that at any given future period of time, a number of female slaves, will be found to have increased.

It is a very general remark, and was made by counsel in this case, that in most cases where these lirnita-"ions of personal property have been construed, to he a limitation over, after an indefinite failure of issue, that •violence is done to the intention ©f the testator; and that that intention is sacrificed for the preservation of a ■technical rule of law. It is true that in cases similar to the one which produced the celebrated rule, called the rule in Shelly’s case, this may be true — as where an estate is given to one expressly for life, with remainder to his heirs, or to the heirs of his body, in fee or in tail. To make a construction, which gives to the first taker, an estate in fee or in tail, which by levying a fine, he can convert into an estate in fee, would serve to contradict the intention of the testator: but in truth, it is only sacrificing the particular, to the general intent of the kestator. And, in most cases, we believe, that the intention of the testator is correctly ascertained, by construing these words, “ dying without issue,” to mean, an indefinite failure of issue, where they stand alone, and. .are not controlled by any thing else in the will.

We do not therefore come to the examination of this t, question, as many judges seem to have done, straggling i'! 'to extricate ourselves from the trammels of a technical.; rule of law, which if established, would in all probability, contradict the intention of the testator; but, we ; consider this like all other cases, in which a will is to ! expounded. The only question is, what was the testator’s intention?

We are relieved from the necessity of threading the labyrinth of cases to be found on this subject, by the construction we put on the clause of the will now before us.

The testator, in the first place, gives to his wife a life estate in the negroes — he then proceeds to declare, that at her death, seven of the negroes, (naming them) shall be equally divided by valuation, between his two daughters, Louisa and Cynthia: then comes these words, “ox-should either of them die without issue, the other is to get the whole of the seven negroes, and their increase.” At what time did the testator contemplate the contingency of a dying without issue was to happen; and on the happening of which, the bequest over was to tafee effect, if at all? Was it at the death of his wife, or was it at any after period? To our minds, it is most clear, that the contingency was not postponed to a later period than the death of the wife. He first directs the property to be equally divided, by valuation, between his (laughters at his wife’s death; but considering it as probable that one of them might die, and without issue, before that event should happen, he provides Tor that alternative, and in the most natural manner possible: "or should either of them die,” &c. The grammatical construction of the sentence accords with our view. The disjunctive particle or, divides the sentence into two parts, and shows that the latter provision was only to take effect, in the event the first part of the clause could not be effectual, from the death of one of (ire daughters, before the death of the mother. The language in which it is couched fortifies the position. Had the testator intended to postpone the contingency of dying without issue, to any period subsequent to the death of his wife, and of course after the division of the negroes, it is most improbable he would have used the language, "the other is to get the whole of the seven negroes.” The use of these words shows that he contemplated the event to happen, if at all, before a division of the property, and of course before the death of the wife. Had lie been looking to some future period of time after the death of the wife, his language would have been, the other to get her share, or some equivalent language. The concluding part of the bequest, puls the matter beyond all controversy; it is in these words: “Should there remain on hand, at the death of my wife, any thing of the stock, household or kitchen, furniture, plantation utensils, &c. undisposed of by my wife, I allow whatever may remain, to be equally divided, by valuation, between my daughters, Louisa and < ’ynthia; or should either of them die without issue, the other is to get the whole of the stock, household and kitclien furniture, plantation utensils, &c. not disposed of by my wife" The structure of this part of the clause, is precisely the same, as the part before commented on; with the addition of the words, “not disposed of by my wife.” These words, in our opinion, must silence ai i doubt as to the true construction of the will. By saying that the “other is to get the whole of the stock, &c. no. disposed of by his wife, he discloses what was passing in his mind at tire tune; the language is conclusive to show, that he intended that the contingency should no' be postponed, to a later period than the death of his wife.

It has been previously stated, that there have been many decisions, which turned exclusively on the fact, that the subject matter of the bequest was personal property, if it could ever be allowed to construe the same words b > a will, differently, according as they related to real or per sonal property, it would certainly be in a case where th property, consisted of such things as perish in the usina —as in this case, “stock, plantation utensils, &c.” Tli argument, that a perpetuity could not be intended, in such a case, is difficult to be resisted, and has governe-the decision of a multitude of cases, which, as they ar ■ familiar to the bar, it is not necessary to cite. Yet w-find this last mentioned bequest, not only in the sam.-will, but a part of the same clause, relating to the sam - persons, and couched in the same language.

The result of the whole, is a full conviction, on ou r minds, that the limitation over was not too remote; th.' contingency being to happen within a life in being The two daughters, under this clause in the will, too. vested remainders in the negroes, and other property, sub ject only to the contingency of their not living to enjoy it. The daughters being both alive, at the death of thei - mother, the contingency never happened; and the pr< perty vested absolutely in them. A division, as the record shows, took place, and by the marriage of the plain tiff with Cynthia, he became the owner of the slaves.

It may not be improper to add, that effect could not hr given to the argument of the learned counsel for the defendant in error, without construing ‘or,’ in the bequest,, to mean and; so as to make the bequest read, “ and should either of them die without issue,” &c. Without determining what the true construction would be in that aspect, it is sufficient to say, that this is never done but in cases where it is absolutely necessary, to carry into effect, the manifest intention of the testator — and where, without such alteration, the plain intention of the testator would be defeated. It is never done, when the will, as it stands, admits of a sensible construction — as in the case of Richardson vs Spragg — The testatrix bequeathed a legacy, to such of her daughters, or daughter’s children, as should be living at her son’s death. Some of her daughters survived that period, who had also children, and others were dead, leaving children. The question, was, whether the children of the living daughters should be let in to a share of this bequest, or the children of the deceased daughters only, as substituted in the place of their mothers. And it was decreed at the Nolls, that all the children, as well of the living as of the deceased daughters, should participate in the legacy. Sir Joseph Jekyl, observing that or should he taken for and; otherwise the whole devise would be void for the uncertainty; and. that it was the same as if the bequest had been, "to such of my daughters, and their children, as shall be living at my son’s death. So if the devise had been, "to my children or grand children,” my children and grand children would have taken. The judgment of the court below mu,st be reversed.

       1 P. Wms.

         1 P Wms. 433.

       See also 2 Cox 213 ; 2 Atkins 643.


source: Caselaw Access Project

author: COLLIER, C. J.

license: Public Domain

text:
    BETTIS’ ADM'R, &c. vs TAYLOR.
    1. Where a party dies, after judgment below, process may issue from the Supreme Court, to bring up the case.
    2. Where a party to a judgment below, died after judgment, a writ of error was directed to issue in the name of the administrator of the deceased, to bring up a transcript of the record, and a scire facias advising defendant of the issuance of the writ of error, was ordered, requiring him to shew cause why the administrator plaintiff should not be allowed to prosecute it. The writ of error to contain a clause directing execution of the judgment to be suspended, upon the plaintiff’s giving bond and security, in a like penalty, and with like condition, as required where the writ of error issues from that court.
    Error to the circuit court of Mobile county.
    At the present term of the Supreme court, the death of the plaintiff below was suggested, by his administrator the plaintiff in error, and the court moved for process to bring the case into this court for the revision of the judgment below. Upon which motion, the court delivered the following opinion.

      J. B. Clarke, for the motion.

      Campbell, contra.
   COLLIER, C. J.

The plaintiff presented to the court the transcript of a record from the Circuit court of Mobile, which shewed that the defendant recovered a judgment against Wm. II. Howell, and caused an execution to be issued and levied on some negro slaves; to which the plaintiff’s intestate, as the administrator of Caleb Howell, deceased, interposed a claim under the statute. Upon trial, the slaves were condemned to the satisfaction of defendant’s execution, and a judgment rendered against the plaintiff’s intestate, in his individual capacity. The plaintiff’s intestate died since the rendition of the judgment against him, and the court was moved for process to bring the case into this court, for the revision of that judgment.

The case of Seawall vs. Bates' Adm'r. is an authority to shew, that where a party dies after judgment, process may issue from this court to bring the case up. In that case, a certiorari was awarded.

We think a writ of error the more appropriate remedy: anddo therefore direct, that a writ of error issue in the name of the plaintiff, as administrator, to bring up a transcript of the record; that a scire facias issue advising the defendant of the issuance of the writ of error, and requiring him to shew cause why he should not be allowed to prosecute it: and that the writ of error contain a clause, directing execution of the judgment to be suspended, upon the plaintiff entering into bond with sufficient security, in a like penalty, and with like condition, as is required where the writ of error issues from that court.

      2 Stew. Rep. 462; 3 ib. 199.


text:
    WHITTED vs. THE GOVERNOR, &c.
    !• The remedy by scire facias, upon'a recognizance estreated, is: given by statute, and only maintainable upon the supposition-that the liability which it seeks'to redress is authorised by a legislative act. That hypothesis failing, the defendant cannot be charged,
    2. By the act of eighteen hundred and'thirty-four, the legislature have prescribed a warrant to guide the courts in providing for a definite amenability to a judgment, and where-that warrant has not been followed, and to the extent to-which it is departed from, the act of a court is void.
    3. The rule in regard to bonds or other deeds, void in part, by common law, or by statute, is, that they are void as to such conditions, covenants or grants, as are illegal, and good as to all others which are. legal and unexceptionable.
    4. Where a recognizance recites, that the recognizor freely, voluntarily and of his own will and pleasure, took upon himself the obligation it imposes — the recognizor is estopped from afterwards setting up, in an action by scire facias upon the recognizance estreated, that it was extorted from him..
    5. A public officer, judicial or otherwise, has no right, under color of his office, to extort from an individual, a bond, as a condition on which he will render to him rights and privileges, he may justly claim..
    Error to the Circuit court of Dallas county.

      Scire facias upon, a forfeited recognizance. At the-fall, term of the Circuit court of said county, eighteen. hundred nnd thirty three, the grand jurors drawn, sworn and charged to inquire for the body of the county of Dallas, on their oaths, presented that Peter Maher, on a certain day in the county aforesaid, upon one John Shields, in the peace of the state, then and there being, feloniously, &c. did make an assault, and with a certain knife, which he, the said Peter Maher, in his left had then and there had and held, the said John Shields, in and upon the body of the said John Shields, a little below the navel of him the said John Shields, and on the right arm and left hip of him the said John Shields, then and there feloniously, &c. did strike, stab and cut, with intent in so doing, wilfully and of his malice aforethought, to kill and murder the said John Shields, contrary to the form of the statute in such case made and provided, and against the peace and dignity, See. And on affidavit, ore terms, of the defendant, the case was continued; — whereupon, the said defendant, and two sureties, acknowledged themslves, to owe and be indebted to John Gayle, governor of the state, and his successors in office, in a certain sum mentioned, to be levied of their goods and chattels, lands and tenements,, to be void, on condition that said defendant should make his personal appearance, at the next term,, to answer to said bill, and there continue from day to day, until discharged by a due course of law.
    And at the spring term of the same court, eighteen hundred and thirty four, came the solicitor who prosecuted, &c. and the defendant: and the defendant said he was not guilty in manner and form as charged in the indictment; whereupon, came a jury, who being elected,. &c. to try the issue joined, on their oaths-said, they found the defendant not guilty of an assault with intent to murder, but guilty of an assault and battery; and assessed his fine at the sum of two hundred and fifty dollar's: It was therefore considered by the court, that the state of Alabama, for the use of .Dallas county, recover against the said defendant, the said sum of two hundred and fifty dollars, the fine so-assessed as aforesaid.
    Before the case however was put to the jury, the-defendant moved the court to quash the indictment, and the proceedings thereon, because^ it appeared that the venire facias on which, the jury were summoned, at the term of the court at which the indictment was-found, did not issue under the seal of the court, but was merely subscribed by the clerk in his official character; which motion the court overruled, and referred the question of law thereupon arising, to the-Supreme court, &c.
    And on the same day came into open court, Peter Maher, in his own proper person, as well as William Whitted his surety, who freely, voluntarily andfpf their own will and pleasure, acknowledged themselves, jointly and severally, to owe and be indebted to-John Gayle, governor of the ciato of Alabama, and his-successors in office, in the sum of five hundred dollars,, to be levied of their goods and chattels, lands and tenements, and conditioned, that whereas, the court had,, at the instance and by the request of the defendant, referred to the Supreme court, a question of law arising in the progress of said cause, in pui’suance of the' statute in such case made and provided. Now if the said defendant should appear at the next term of the court, and fully pay, satisfy, and abide by the judgment of the court, then to be rendered in said case, the recognizance should be null and void ; otherwise, to be of full force and virtue, if said judgment should- be affirmed in the Supreme court, &c.
    And on the twelfth day of July, eighteen hundred’ and thirty four, the case having been argued and examined, the said Supreme court, as it appeared by certificate of the clerk of said Supreme court, considered, that the said judgment of the said Circuit court,, should be affirmed, and that the state should recover the costs in the said Supreme court accruing,, &c.

      And at the fall term of the Circuit court of Dallas county, the said defendant being solemnly called to come into court, and abide the judgment so rendered as aforesaid, in discharge of his said recognizance, came not, but wholly made default; and the said William Whitted, the surety of the said defendant, being also solemnly called to come into court, and bring the body of the said defendant, came not, but also wholly made default: It was therefore considered by the said court, that the said defendant and the said William Whitted., surety as aforesaid, forfeit their said recognizance, and that the state of Alabama, for the use of Dallas county, recover of and"from them the.said sum,of five hundred dollars, the amount of their said recognizance, so forfeited as aforesaid, unless at the next term of said court, they should shew good and sufficient cause why said judgment should not be made absolute; and a scire facias was ordered to be issued against each of them, &c. and the cause continued.
    A scire facias accordingly issued, which- was-returned executed, and to which there was a demurrer and joinder, and the following pleas pleaded, viz: William-Whitted, the defendant for , plea said, that there was no such record as that set forth in- the scire facias, which he prayed might be enquired of by the court; and for a further plea said, that plaintiff ought not to have an action, &c. because, he said, the recognizance varied from that required by statute, in this, that the said recognizance required said Maher, to pay and fully satisfy the said judgment, as well as to appeal” and abide by the said judgment; and the defendant averred,, that the recognizance was extorted and required by said court, as the condition by which said Maher could, have the points reserved, adjudicated in the Supreme court, which was the case referred to in said recognizance, and for no other purpose, and that he was ready to verify, &c.

      'To these pleas there was a replication, -viz: plaintiff said there was such a record as that set forth in ¿he scire facias, remaining in the office of the clerk of the Circuit court of Dallas county, and this the plaintiff was ready to verify by the record, when, where, and in such manner as the court should order, and prayed, that the same might be seen and inspected. And as to the second plea, plaintiff said the matters thei’ein contained were not sufficient in law to bar or preclude the plaintiff from maintaining his action, and that plaintiff was not bound by the law of the land to answer the same, which he was ready to vajgifigAnd for want of a sufficient plea, prayed^bo^ii^ri^^|4(*^ Plaintiff also showed the following csfes^ol demurrer? to the said second plea of defendant, said plea was double, inasmuch as fi-Míoiftaílfea £woh distinct allegations, either of which wasyci^i^^ action: first, that the recognizance ws^variant fropr' that required by statute; and second, th^SfeS^gogni-zance was extorted and required by the court, &c. and that the plea was in other respects informal, insufficient, &c.
    And at the spring term, eighteen hundred and thirty-five, of the said Circuit court of Dallas county, came the parties, and on the demurrer of defendant to the scire facias being argued, it was considered, that said demurrer be overruled; and the matter of law arising upon the demurrer of plaintiff to the pleas of defendant, being argued and perfectly understood by the court, it was considered, that said demurrer of jdaintiff be sustained, and the record of said recognizance being seen and inspected by the court, it seemed to the court that there was such a record as the plaintiff in his replication had alleged. It was therefore considered by the court, that plaintiff recover of defendant the sum of five hundred dollars, specified in the recognizance in the said scire facias mentioned, and all the costs in that behalf expended, for which execution might issue, the defendant to be in mercy, &c.
    From this judgment diere was a writ of error, and at the present term of this court, the plaintiff in error came and assigned for error;
    1. The court below erred in overruling defendant’s demurrer to the scire facias.

    2. In sustaining plaintiff’s demurrer to defendant’s second plea.
    3. In rendering judgment against defendant on the plea of nul tiel record.

      4. The judgment final was variant from the judgment- nisi, the one describing plaintiff as “John Gayle, Governor, &c.” and the other as “ the State of Alabama.”

      Phillips Sf Edwards, for the plaintiff in error.

      Attorney General, contra.

      Edwards, for the plaintiff in error, cited 1 Chitty’s PI. 358, to shew that the court below erred, in overruling the demurrer to the scire facias, there being no reference in it to the record. The recognizance imposed more onerous terms than the statute prescribed. Acts 1833-34, p. 36, Aik. Dig. 230: and therefore the court was wrong in sustaining the demurrer to the second plea of defendant below; at any rate, that the recognizance was extorted, was a good defence — 5 Peters, 115 ; 7 Cranch, 287. The jndgment nisi was manifestly variant from the recognizance. The judgment nisi was also in favor of the State, but the judgment final in favor of John Gayle, Governor, &c. — 6 Bac. Ah. 123; 2 Com. Dig. 61, 62. The demurrer to the second plea left it doubtful, if not impossible, that the State -could plead over.

      Attorney General, for the defendant in error, respecting points reserved, referred to the statute of >834, and as to recognizances — Aik. Dig. new ed. 614 The matter charged to be variant was mere surplus-■sage. “ To appear and abide the judgment,” comprehended “ to pay and satisfy.” The demurrer to the scire facias was therefore properly overruled.
    The defendant’s second plea was bad, because it was double — 7 Wend. 129 ; 2 Johns. R. 96; 3 Ibid, 315; 10 Ibid, 289. It was not capable of trial, and-' presented a conclusion of law, and not of fact — 6 Mass. 19; 5 lb. 438; 12’ lb. 506; and blended both law and. fact — Gould, 64. The plea also contained an averment against a record — 5 Mass. 174; 9 Mass. 532. “ Bonds and recognizances are good either to the Governor” or the “State of Alabama” — Aik. Dig. 122, sec. 44. Hence the variance in judgment nisi, and final judgment, (if any) was immaterial, and this court could correct the judgment final, if it were merely ’■informal.

      A,ikin’s Dig. 2d Ed. 614.

   COLLIER, C. J.

The plaintiff was sued by scire fa- ' das upon a forfeited recognizance. From the record, we learn that Peter Maher, was convicted in the Circuit court of Dallas, of an assault and battery — that pending his trial, certain questions .of law arose, which being decided against him, were referred to this court, as novel and difficult. With the view to obtain their reference for the opinion of the court, Maher, with the plaintiff as his surety, entered into a recognizance, (as it recites,) “freely, voluntarily, and of their own will and pleasute,” payable to the Governor, in the sum of five hundred dollars; conditioned in the event of an ah firmance of judgment, that Maher should appear at the then next succeeding term of the Circuit .court, “ and fully pay, satisfy and abide by the judgment of the court” then rendered. The form of the recognizance is brought to our view by the scire facias, and the second plea of the plaintiff in error, both of which were demurred to. To the former, the demurrer was overruled, and to the latter, sustained; and thus sufficient matter being furnished on which to form an opinion decisive of the case, it will be unnecessary to look farther into the record.

In this aspect of the case, two points have been made by the plaintiff: 1. That the condition of the recognizance is variant from the statute under which it was taken, and consequently does not warrant a recovery. 2. That his plea that the recognizance was extorted by the judge of the Circuit court, coloro officii, was good in law, and should have been sustained.

1. By the first section of the act of 1834, “the more, effectually to secure the administration of justice in criminal cases,” it is enacted “that it shall he the duty of the judges of the Circuit courts of this State, whenever a conviction shall he had in any criminal case, and points reserved as novel and difficult, for the decision of the Supreme court, to proceed and render judgment on the conviction; but the execution of the judgment shall he suspended in cases not capital, until the next succeeding term of the Circuit court rendering the judgment, and the defendant shall be recognized, with good and sufficient securities, to there appear and abide the judgment so rendered.” This statute authorizes the court to require sureties to “ appear and abide the judgment,”— not to “fully pay, satisfy and abide” by it. The act of the Legislature imposes upon a defendant the duty of awaiting or submitting to, while the recognizance greatly extends, lito obligation of himself, and of consequence, his surety. In thus adding to their undertaking, a stipulation not enjoined by the statute, the Circuit court went heyond its legitimate authority, and, in doing so, prejudiced the interests of the surety. Had the recognizance conformed to the statute, it would have been competent for Maher, the principal, to have satisfied it, by_ appearing and availing himself of the laws for the ben'efil of insolvent debtors, hut its terms make it necessary for the relief of the surety, that he should actually pay it. The legislature have prescribed a warrant by its act. to guitle the court in providing for a defendant's amenability to the judgment. This warrant lias not been folio wed, and to the extent to which, it was departed from, the act of the court is void. The remedy which has been adopted, is given “by statute, and only maintainable upon the supposition that the liability which it seeks to redress, was author]sed by a legislative act; tills hypothesis failing, the plaintiff in error cannot be charged in tile present proceeding.

2. We are satisfied that no public officer, no matter to what branch of the government he may belong, has a right, by color of his office, to extort from an individual, a bond, as a condition on which lie will render to him the rights and privileges lie may justly claim by hvw — United States vs. Tingey. But without examining tiie plea of the plaintiff, in which this defence is set up, we ave of opinion that the terms of the recognisance estop him from interposing such a defence, it recites 1 hat Maher and the plaintiff “freely, voluntarily, anil of their own will and pleasure,” took upon themselves the obligation it imposes. Here is an acknowledgment of record, and according to the well settled rule that a record cannot be gainsayed, operates as an estoppel upon the plaintiff. That this rule, like all others, has its exceptions, we are aware; yet the plaintiffs plea does not come within any one of them.

In regard to the recognizance, it may be proper to remark, with a view to ulterior proceedings, that the distinction which is.supposed once to have obtained between bonds void in part, by common law, and by statute, is no longer recognized. The true rule, in regard to each, is, that bonds or other deeds are void as to such conditions, covenants or grants as are illegal; and good as to all others which are legal and unexceptionable in their purport. If, however, the illegality was for something malum in se, or if the statute has not confined its prohibitions to the illegal conditions, covenants or grants but has expressly, or by necessary implication, avoided the whole instrument, to all intents and purposes, then there could be no recovery upon any part of it—United States vs Bradley. Here the excessive condition is merely illegal, and does not vitiate so punch of the recognizance as is authorized by the statute. So, that if the legal condition was not performed, it would be competent to maintain an action for its breach.

The judgment must be reversed.

       5 Peters’ R. 115.

       10 Peters’ R. 343.


author: ORMOND, J.

text:
    MARTIN vs. CHAPMAN.

      J, A violation of contract, by one of the parties to a writ! er agreement, is sufficient to authorize the other party, to abandon it, and sue for the injury sustained.
    2, It is the province of the court to expound to the jury, all written instruments which may be offered in evidence, on the trial of a case; and ambiguous words are to be expounded by popular meaning, and the light shed on them from other parts of the written agreement.
    3. The words “crop time,” when used in a written agreement, between a planter and his overseer, mean that portion of the year, which is occupied in making and gathering the crop.— The balance of the year is not considered crop time.

      Error to the Circuit court of Perry county.

      Action on the case. At the spring term of the court aforesaid, eighteen hundred and thirty-five, Joseph Chapman, the plaintiff, declared against Shadrach Martin, the defendant, that on a certain day, in said county, articles of agreement were made and entered into, between plaintiff on the one part, and defendant on the other, by which plaintiff agreed on his part, to attend to defendant’s business in the capacity of an overseer, to work, when necessary, at light work, such as plaintiff might prefer, and also after the crop was laid by, to attend to the hands in whatever business ■defendant might wish them to do; to gather the crop, and haul the cotton to a gin, and to the landing, should not other arrangements be made with it; and defendant, on his part, agreed to furnish eleven hands, who should be under the control of plaintiff in crop time, and to pay the plaintiff the eighth part of the corn, fodder and cotton, and also agreed to feed said plaintiff’s horse, which the plaintiff agreed to plough, until the new crop was made; and plaintiff avered that the services to be rendered by him as an overseer for the defendant, as above stated, were to be rendered and performed, in the year eighteen hundred and thirty-four, on the farm of said defendant, and that the eighth part of the corn, fodder and cotton, to be raised on the farm, in said year, was to be paid to plaintiff, at the end of the year, when the crop was gathered; and plaintiff averred that the agreement to plough said horse was, that the plaintiff should plough said horse during the ploughing season of the yéar eighteen hundred and thirty-four, and that the agreement of the defendant to feed said horse until the new crop was made, was meant and intended, that defendant should feed plaintiff’s horse, until the said new crop was made in the same year; and the agreement being so made as aforesaid, in consideration thereof, plaintiff promised defendant to perform and fulfil the same in all tilings, and the defendant undertook, and then and there faithfully promised plaintiff to perform and fulfil the same in all things, on said defendant’s part, and although plaintiff did perform said agreement, and did, during the said year, attend to the business of defendant as an overseer, and did work at light work, and after the crop was laid by, did attend to the hands in whatever business defendant wished, and did also plough his horse, and did proceed to gather a great part of the crop, to-wit, about eighteen hundred bushels of corn, one hundred and sixty thousand poupds of fodder, and forty thousand pounds of seed cotton, and was ready and willing to complete the wholes of the work and service by'him tobe done and performed, by virtue of said agreement, of all of which defendant had due notice; yet the plaintiff said, -defendant did not, nor would perform and fulfil said agreement on his jiart, nor his said promises, i hough often requested so to do, but wholly neglected and i effused so to do, and did not nor would permit or suffer plaintiff to proceed to gather said crop, and perform his said agreement, hut hindered and prevented him from so doing, and then and there wrongfully discharged the plaintiff from further performance and completion of his agreement and promise, whereby the plaintiff was deprived of the profits and advantages which he otherwise might and would have derived from the performance and completion of said agreement, to-wit, one eighth part of the corn, fodder and cotton raised on said farm, in the year eighteen hundred and thirty-four, and plaintiff averred that the said one eighth part of.the corn-, fodder and cotton raised on the farm, amounted to a large quantity, to-wit, to two hundred and fifty bushels of corn, twenty-thousand pounds of fodder, and five thousand five hundred pounds of seed cotton, and plaintiff further averred that the same was of the value of four hundred and. fifty dollars.

      , There were five additional counts in the declaration, all setting out, in various forms, the plaintiff’s cause of action.
    To this declaration, the defendant plead, non as-sumpsit, payment, arbitration and award, accord and satisfaction, and a set-off.
    And at the fall term of eighteen hundred and thirty-six, came the partios and joined issue, and a jury of .good and lawful men came, and being sworn, on their oaths said, they found for the plaintiff, and assessed ins damages at four hundred and eighty-seven dollars and eighty cents : It was therefore considered by the court, that plaintiff recover from defendant the said r.um, together with his cost, &c. •
    Whereupon the defendant came and moved the court tc sot aside the verdict, and grant a new trial on he ground.-, '--
    1st. That the jury, before they were discharged by the court, and after the cause had been submitted to them, separated and left the jury room-, and the court hou >e, wi¡.limit being under the care of any bailiff or oído or of court, and again assembled and came ruto court vr,A what purported to be their verdict.
    2d. The jury, after the cause had been stated to them, and after the argument of counsel had been pieard, and tee cuarge of the court given, and they had returned to the jury room, came into the court room whoa due court was not in session, and delivered what purported to be their verdict, to a person whom they supposed tobo the deputy clerk, and then separated and went, at large, and afterwards assembled, and took wkn; pun-ported to he their verdict back again. All of which was without the consent of the court,, or the defendant.
    3d. The and evidence, nding of the jury was contrary to law
    4th. The court, in the charge that was given to the jury, mistook'he law in relation to the construction. which was placed upon the contract, which was offered in evidence by the plaintiff.
    Upon this motion, the court being of opinion as contended for by defendant; that the jury, in estimating the damages, had included the value of the corn mentioned in the declaration, and that the same should not' have been so done under the evidence as offered at the trial — directed a new trial on the motion of defendant, unless the plaintiff should remit all the damages assessed by the jury, over the sum of three hundred dollars; which assessment was considered to cover the value of the corn; whereupon, the plaintiff in open court consented to remit all his d amages, over and above the sum of three hundred dollars, and costs of suit: It was therefore adjudged by the court, that the judgment should stand, and be good for three hundred dollars, and cost of suit, and no more, except legal interest thereon, for which execution might issue, &c.
    The bill of exceptions stated, that on the trial of the case, the plaintiff gave in evidence to the jury, a contract in writing, of which the following was a copy:
    “ Alabama, Perry county. — Articles of agreement, entered into between Joseph Chapman on one part, and Shadrach Martin, on the other, both of the state and county aforesaid, witnesseth — that the said Joseph agrees to attend to the said Martin’s business, in the capacity of an overseer, to attend as strict to business as need require; also to work when necessary, at light work, such as he may prefer, and also after the crop is laid by, to attend without labor, to them, the hands,, in whatever business said Martin may wish them to^ do, and also to gather the crop, and haul the cotton to a gin or to the landing, should not other arrangements be made with it. The said Martin agrees on his part, to furnish eleven hands, to-wit, John, Reuben, Sally, Frank, Peter, Sam, Littleton, John, a boy, Marinda, William; — these hands are to be under the control of said Joseph in crop-time. The said Martin agrees to pay the said Joseph, the eighth part of corn, fodder, and cotton, and also to feed said Joseph’s horse, which Joseph will plough until the new crop is made. Signed in good faith, this 31st March, 1834. — (Signed,) Joseph Chapman, Shadrach Martin. — Attest, W. Chapman.”
    “ The plaintiff, after said contract was read to the jury, introduced a witness who swore, that about the last of October,'eighteen hundred and thirty-four, and after said plaintiff had commenced picking out said-crop of cotton raised, some misunderstanding took place between the plaintiff and defendant, in relation to the government and control of the hands, mentioned in said contract. That the plaintiff insisted they should pick out cotton, and the defendant insisted that a part of them should saw some lumber for the building of a gin-house, and that some of the others should get stocks to be sawed, and accordingly ordered and directed them to go to doing the work he desired them to do. That the plaintiff then objected to any portion of the hands being employed as the defendant desired them, and asserted that he had a right to control them, and that if they were not employed as he wanted them, he would not remain. In the altercation between the parties, the defendant told the plaintiff that he wanted him to remain, and attend to his business, according to the contract between them, but that he, the said defendant, must build a gin-house, i.o which the plaintiff replied, that he would not consent to remain on such terms, and that shortly after-wards the plaintiff left the employment and business of the said defendant, and did not return.
    “No evidence was offered of the meaning of the words, crop-time, as used in the contract between the parties, or what was understood by the expression “ crop time,” among planters and farmers in the country. Whereupon, the court charged the jury, that the contract between the parties being in writing, it was exclusively the duty and privilege of the court, to construe it, and that according to the construction-which the court placed upon th'e contract, the term “ crop time,” used in the contract, meant the gathering, as well as making of the crop, and that during- all the time the plaintiff was engaged, making and gathering and saving a crop for the defendant, he had the exclusive right of governing and controlling the hands mentioned in the contract, and that if the defendant attempted to interfere or prevent him, or employed them in doing other work, during said time, without or against the plaintiff’s consent, it constituted a sufficient reason in law, for the plaintiff’s leaving the business and employment of the defendant, and a sufficient and lawful excuse for his not remaining to the end and expiration of the term for which be contracted, and thereby not performing and fulfilling the contract on his part; and further, that the only time during the year embraced by said contract, at which die defendant had a right to order, direct and control said hands, independent of the said plaintiff, was the time that intervened or elapsed between the laying of the-crop by, and the commencement of the gathering or saving it. To which said several opinions so delivered by the court, the defendant excepted, and prayed that the bill of exceptions might be signed, and made part of the record,” &e.
    And at the present term, the jslaintiff in error assigned for error, that the court below erred in the charge given to. the jury, and excejited to by the plaintiff in error.

      Erwin, for the plaintiff in error.

      Hopkins Sf Parsons, contra.
   ORMOND, J.

The bill o.f exceptions, contains an instrument in writing, which, on the trial in the court below, the court was called on to expound. To the exposition thus given by the court, the defendant below, who is the plaintiff in this court, excepted, and assigns that matter here, as error.

It is the province of the court, to expound to the jury, all written instruments which may be offered in evidence. And in the exposition given to this paper, referred to in the bill of exceptions, we are of opinion, the court did not err.

The words “crop-time,” used in the said instrument, are to be expounded by popular meaning; and by any light which may be shed upon them, by any other part of the written agreement. The phrase evidently means, that portion of the year which is occupied in making and gathering the crop — the period of time, which would intervene between the time, when the crop no longer required working : in popular phrase, when “the crop is laid by,” and the time when the crop had matured, and it was necessary to commence gathering it, is that portion of the year which is not considered crop time. This view, if necessary, is aided by the instrument itself.

The defendant undertakes to work at light labor, such as he may prefer, during crop-time, and after the crop is laid by, to attend the hands without labor, in any business the defendant may employ them in. The distinction between crop-time, and that portion of the year when the crop is laid by, and not included in the term “crop-time,” is thus referred 10 and recognized.

The plaintiff, as appears from the evidence, having taken the hands from the defendant, while he was gathering the crop, and by consequence, during crop time, without his consent, and against his remonstance, was guilty of a violation of the contract, on his part, which authorized the defendant to abandon the contract, and sue for the injury he had sustained ; and the charge of the court to this effect is right.

There is no error in the charge of the court, and the judgment must be affirmed.


author: GOLDTIiWAITE, J. COLLIER, C. J.

text:
    WHEELER, et al. vs BULLARD.
    'jdn cases where the plaintiff, is by law'authorized to discontinue, he may do so, asto any of the defendants, in his declaration, without an order of court.
    2, Where several defendants are sued, ns copartners, and il is ascertained, that one of them is not a pat (tier, it is lite duty of the court, befóte whom lite suit is pending, to discontinue such suit ¡'.gainst such person or pcrs< ns, ; s ¡-hall; pj ( ar i ct to be partners. And the plaintiff in such ca&e may discontinue m such mode, and at such time as l.e th nhs ex; t da tit, as he is the individud entitled to the benefit of the. stall! I.e.
    3 But where a defendant ¡deads to (ho action, lie admits a d<~ duration, and if he withdraws h * |.lee, in .admits that Ids defence cannot he •’.taintaiued, ¡nal no ¡ rc.-umptiou, either of law or fact, can arise in his favor.
    4 Where a suit is once, continued, and (hen sncccss.'tt ly resisted, by defendant, and afterward-a new 11in! is «named; and at lite next term the ¡deas are wulrirív n ami judgmc nt tendered — the defendant camml be. p«Tm;'t«'d in «tor, tit c;,or, the want of ¡i declaration, or a defect in the declaration, if one be before the couit.

      5, So, after a defendant 1ms made all ihe defence in his power in the court below, ii cannot advance the cause of justice, t permit him to object, in erroi, to t lie omission of a paper, without which a trial, or proceeding of any kind, could have taken place; and the presumption, in all such cases, is natch more forcible, that the paper, the omission of wh.eh 's alleged for cause of reversal, has been lostftom the hies, than that it never had existence.
    6, The appearance of a party by attorney, obviates the necessity of the service of process; and after a discontinuance as to adefendan , he can again be introduced into court, by an appearance for him.
    7, Semble, thetefore an attorney v\ho appears for a party, without. authortv, is responsible to the parly injured, for his mtei-fe re nee.
    Error to the Circuit court of Pike county.
    .Assumpsit on a promissory note. On the twenty-third day of March, eighteen hundred and thirty-five, Samuel Bulllard issued his writ against Charles Wheeler, Jordan Wheeler and Thomas Wheeler, surviving copartners of Charles Wheeler & Co. in a plea of trespass on the case. &c. returnable to the spring term of the court aforesaid. The cause of action endorsed on the writ was the following note:
    ‘•$322 41. Montgomery, Jan’y 20th 1834.
    On the first day of March next, we promise to pay John Goldtlnvaite & Co. or hearer, three hundred and twenty-two 41-100 dollars — value received.
    his
    Charles lx Wheeler & Co. mark.
    Witness, Thomas Walsh.”
    The sheriff returned to the writ, that it was served on all the defendants with the exception,of Cha -tes Wheeler, and that Charles Wheeler was not found in the county.
    And at the Fall terra, eighteen hundred and thirty-five, came the parlies, and it appearing that Thomas Wheeler, sued as one of the firm of Charles Wheeler & Co. was not a partner of said firm, the plaintiff had leave to discontinue as to him. Defendants then plead iwv-assump.ñi, and the case was continued on affidavit of plaintiff.
    And at the Spring term, eighteen hundred and thirty-six, came the parties, and a jury of good and lawful men, came also, who, upon their oaths, said they found for the defendants; — whereupon it was considered by the court, that the defendants go thence, without day, and recover of the plaintiff their costs, in that behalf expended, for which execution might issue, &c. Whereupon a motion was made by plaintiff for a new trial, which having been beard and considered by the court, a new trial was ordered accordingly.
    And at the Fall term of the year afaresaid, came the parties, and the defendants withdrew their plea, whereby said action remained undefended : it was therefore considered by the court, that said plaintiff recover of said defendants, the sum of three hundred and eighty-eight dollars, the damages stated in the declaration, as well as costs, &c.
    From this judgment the defendants prosecuted their writ of error to this court, and now, at this term, the plaintiff's in error said, that in the record and proceedings in said canse,and alsoiu rendeiingjudgment, error had intervened, in 1 liis, to wit :
    1st. There was a dircoutinuauce as to Thomas Wheeler, and therefore, a discontinuance of the whole suit.
    2d. There was no declaration filed in the cause, and the court erred, in rendering judgment without a declaration.

      3d. The court erred in giving judgment against Charles Wheeler, after a discontinuance as to him.

      Porter, for the plaintiffs in error.
    The suit is against the parties, as surviving copart-ners; and if there was a continuing copartnership, the service upon one, is good against all. This would be the view of the case, had the plaintiff below proceeded to judgment, without noticing those of the firm not served : and such as were not copartners, could only claim the advantage of that fact, by appearance and plea. But when the plaintiff anticipates the fact, and discontinues as to Thomas Wheeler, he, by his own act, ejects Thomas Wheeler from the proceedings, and elects to proceed against the others : and the parties being of a firm, this amounts to a discontinuance, as to all — -The statute, — Aikin’s Digest, 288, section 5S — authorises the court to discontinue as to such, who, being sued as partners, appear not to be so. Now, how must this appear? Certainly only by such means as may be taken by the defendant, in order to make it appear. This would be under some plea filed by himself. But even supposing this right of discontinuance to be in the plaintiff, he has departed from the statute,, for he does not proceed to judgment against such as appear to be partners; but he proceeds to judgment, against even him as to whom he had before discontinued.
    Though one, who has plead to a declaration, may not claim in error, the absence of a declaration, yet, here Thomas Wheeler had made no plea. The plea, or appearance, must be referred to those in court; and the presumption of appearance for Thomas Wheeler, is rebutted by the entry of discontinuance, as to him. There was no declaration then, as to him, for the declaration which did exist, if at all, must have conformed to the previous entries; and these show a discontinuance as to Thomas Wheeler.

      The judgment then, against Thomas Wheeler,, is erroneous — first, because, if ever in court, by the writ, the discontinuance of plaintiff, placed him out. And the entries showing thus, no declaration or judgment could be made or had against him: for he stood as one as to whom no process had ever issued. If a writ issues against two, and it be served only upon one, would appearance generally bring the other into courtÍ This case, I think, upon principle, is the same. By the act of the court, upon suggestion of the plaintiff, one defendant is put out of court; and yet judgment afterwards entered against him, in the face of the eDtry of discontinuance.

      Geo. Goldthivciiie, contra.
   GOLDTIiWAITE, J.

The record shews a writ issued against Charles Wheeler, Jordan Wheeler, and Thomas Wheeler, surviving copartners of Charles Wheeler & Co., at the suit of hallará.

The action is assumpsit, on a promissory note, which is set out in the endorsement on the writ. Process was executed on all tlic defendants, except Charles Wheeler. At the trial term, the case was entitled, as against Charles Wheeler & Co., when the parties appeared by attorney, and. Bullard obtained leave to discontinue his suit against Thomas Wheeler, for the cause that he was not a partner of the said, firm; but no judgment of discontinuance was entered, and the suit was continued, as on the affidavit of the plaintiff. At the ensuing term, the case was entitled in the same manner, was tried by a jury, who returned a verdict for the defendants, which was set aside, and a new trial granted. At the succeeding term, the cause was entitled — Samuel Bullard, vs. Charles Wheeler, Jordan Wheeler, and Thomas Wheeler, survivors, <fcc., when judgment was rendered in the following terms: “Came the parties, by attorney, and the defendants withdraw their pleas, whereby said action remains undefended: it is therefore considered by the court, that the said plaintiff recover of said defendants, the sum of three hundred and eighty-eight dollars, his damages in the declaration stated, as well as his costs.” No declaration appears in the record.

The defendants below have sued out a writ of error to this court, and insist that the court below erred—

1st. In rendering any judgment against the defendants, after the discontinuance made as to Thomas Wheeler, which is alleged to be a discontinuance of the suit, as to all the defendants ;

2d. In rendering judgment against the defendants,, without there being any declaration against them.

3d. In rendering judgment against Charles Wheeler, after the discontinuance as to him..

Although no formal judgment of discontinuance is entered, as to Thomas Wheeler, yet as the plaintiff applied for leave to discontinue against him, his request, when granted by the court, must, as we conceive, have this effect. It is not usual for any formal entry to be made of the discontinuance, and in cases where the plaintiff, by law, is authorized to discontinue, he may do so in his declaration —McRae and McMillan vs. Foster. The statute which authorises a discontinuance against one, who is sued as a partner, and is ascertained not to be so, is slightly different in its terms from that which permits a discontinuance, when the process has not been served on all the defendants to a suit, and directs that the court before which the suit is pending, shall discontinue such suit against such person or persons as shall appear not to be partners. The mode by which this fact shall be made apparent, is not prescribed. As the plaintiff is the individual who is. to receive the benefit of this enactment, no injury can arise from permitting him to determine when he will cease to pursue one of several whom he has sued as partners, but has ascertained not to be so, the more especially as the defendants will always have it in their power to prevent any mischief to them, by admitting the fact of partnership, when the discontinuance is contemplated.

In my opinion, the omission of the declaration, in thi 3 record, would be decisive to shew error, if the judgment had been, rendered by default or on a verdict;, because in the one case the defendant has said no-thin?, and the plaintiff proceeds at the risk that his proceedings are strictly regular; and in the other he has contested the fads set out by the plaintiff, and has in no, manner admitted their sufficiency in law, to charge him; therefore, he may be admitted, after the facts are ascertained, to deny that they constitute a legal cause of action. But no such conclusion follows in this case: here,, the defendants, by filing their pleas, have admitted that there was a declaration to. plead to, and, by withdrawing their pleas, have admitted that the defence could not be maintained. No presumption can here arise in favor of the defendants, from the facts disclosed by the-record — the suit is once continued, and afterwards- successfully resisted by the defendants. A new trial is granted, and then at the next term, the pleas are withdrawn, and a judgment is rendered on the note. It is. the opinion of us all, to permit the defendants now to urge the. want of a declaration, or a defect in it, would be countenancing a practice which has hitherto met with little favor In this court, and which cannot.be done-without overruling its decisions. In the case of Clements vs. Johnson, it was determined, that- the defects of' an insufficient scire-facias could not be reached in-error, when the record shews a judgment after a plea withdrawn; and- Chief Justice Lipscomb,, in delivering the opinion of the court, observes, “that- although such a. judgment, is not strictly one by confession, yet- it cannot, by any sound reasoning,.be distinguished from such an one, respecting its effect as a waiver of defence.?-Nor can we distinguish between a defective declaration,, and no declaration. It may well be questioned whether justice is ever advanced, by permitting the. defendant to object, in a court of error, after he has made.- all the defence in his power, in the lower court, the omission of a paper, without which, no trial or proceedings of any kind could have taken place; and the presumption, in all such cases, is much more forcible, that the paper, the omission of which is alleged for cause of reversal, has been lost from the files, than that one never had existence.

In the last assignment of error, we presume the name of Charles is inserted by mistake, for that of Thomas, as the discontinuance was asked to be permitted as to-the latter named person. It has been held by this court, that the appearance of a party by attorney, will obviate the necessity for the service of process— Gilbert vs. Lane; and we cannot perceive any reason why, after a discontinuance as to a party, he may not again be introduced into court by an appearance for him. In the present case, after the continuance and trial of the cause, then entitled as against Charles Wheeler & Co., the cause at the next term is stated as against these defendants, naming each of them.; then follows the appearance by attorney, and the withdrawal of the pleas.

If this appearance was made by an-attorney who had no authority, he is responsible to the party injured, by his interference; but- the plaintiff has a just right to: look to the appearance, as made by the authority of each defendant, and to act upon it, (see the case last cited.)

The judgment of the Circuit court is affirmed..

COLLIER, C. J.

I concur in- the opinion pronounced' by Judge Goldthwaite, except soffar as it distinguishes between the effect of a judgment after verdict upon an issue tried; and a judgment, on plea withdrawn. I am unable to discover why the absence of a declaration should be error in the one case, and not in the other. It seems to me that it should be intended, in either case, from the defendants’ having pleaded, that the filing of a declaration was waived, or else it was lost after judgment.

OSMOND, 1 — I agree in opinion with Judge Collier,,

       2 Stew. & Por. 143.

       Aik. Dig. 268, s. 58.

      3 Stew. & Par. 269.

       3 Porter, 267.


author: GOLDTHWAITE, J.

text:
    ROBERTS vs. ADAMS.
    1. In an action by a surety against his co-surety, for money paid, laid out and expended, on account of the co-suretyship, it is not necessary to aver and prove that the principal or principals have been prosecuted to insolvency.
    2.. The right of a surety to sue his co-surety, is consequent upon the legal payment of the money for which the sureties were jointly bound; notwithstanding the act of this State, also authorises one co-surety, who has paid money on a judgment, to move against another for his proportion of the debt, when the principal debtor has proved insolvent.
    Error to tito Circuit court of Dallas county.
    Assumpsit on promises implied. Plaintiff below •declared aghast tire defendant, at the spring term eighteen hundred and thirty-seven of said court, for that whereas said defendant, theretofore, to wit, on a certain day, was indebted to said plaintiff in a large sum of money, by plaintiff, before that time, lent, advanced and paid, laid out and expended, for the said defendant, zt his special instance and request, and that being so indebted, i:i consideration thereof, promised to pay the same when required so to do, and being so requested, had declined, to the damage of plaintiff, &c.
    There were several other counts in the declaration, to all of which defendant pleaded the general issue.
    And at the fall term of the same court, came the parties, and a jury of good and lawful men came also, to whom the issue joined was submitted, and who upon their oaths said, they found for the plaintiff: It was therefore considered by the court, that the plaintiff should recover of defendant, the sum of money so found by the jury, and the costs by the plaintiff expended, for which execution might issue, &c.

      From this judgment there was a writ of error returnable to this court.
    The bill of exceptions stated, that on - the trial of the cause, plaintiff proved that he and defendant were co-sureties for one Ross & Roberts, on a promissory note, on which plaintiff had been sued, and compelled to pay the whole of the said note, by judgment and execution. No proof was adduced of the insolvency or inability of Ross & Roberts, to remunerate the plaintiff. The defendant asked the court to charge the jury, that to enable the plaintiff to recover, he must shew to them, that Ross & Roberts, the principals, were unable to pay the plaintiff the money paid for them as surety; but this charge the court refused to give. To which refusal so to charge, the defendant excepted, &c.
    The plaintiff in error now assigned, that the court below erred in declining to charge as disclosed in the bill of exceptions, &c.

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

      Phillips, contra.

      Clarke, for the plaintiff in error, cited Aik. Dig. 385, sec. 4, and Pearson vs. Backhand, 3 Litt. 385, to shew that to enable plaintiff below to maintain his action, it was incumbent on him to shew the insolvency of the principals in the note; and having failed to do so, the court below ought to have charged as requested by defendant. He also cited to the same effect, 17 Mass. 468 ; 2 Bos. & P. 268; and Starkie, 1384; alsoN. II 270.
   GOLDTHWAITE, J.

This in an action of assump-sit on the common counts; and the only question which is presented for revision, arises out of the bill of exceptions, taken by Roberts on the trial of the cause — by which it appears, that the plaintiff and defendant were the co-sureties for Ross and Roberts, to a promissory note. .on which Adams was sued, and compelled to pay. No proof was adduced to show the insolvency of Ross and Roberts. On the evidence, Roberts requested the Circuit court, to instruct the jury, that before Adams could entitle himself to a recovery, the insolvency or inability of Ross and Roberts must be made apparent. This instruction. was refused, and the refusal is here assigned as error.

Since the case of Cowell vs Edwards it has never been questioned in England, that one co-surcty 1ms a right of action against another, as soon as he is compelled to pay the debt for which they were joint sureties. Nor has a contrary doctrine ever been asserted in this country, except in the Ciato of Kentucky. In the case of Pearson vs Duckham, court of Error and Appeals of that ¡átate, in a ease which cannot be distinguished from the one now before us — decided that tl to right of one surety to recover from another, his proportion of the money paid on account of the suretyship, was dependant on the insolvency of the principal debtor. The grounds on which the decision Is made to rest, are two fold — •

1. That the action at law, is derived from the courts of Equity, and that such courts never decree in favor of one surety against another, unless the principal debtor is insolvent; and—

2. That because the legislation of that State had given a summaiy remed3^ in favor of one against another co-surety, when the principal debtor is insolvent, this must be regarded, as a legislative exposition of the law of co-suretyship.

The first of these positions would he very difficult to sustain on principal or authority, for it is no where laid down, that the allegation of insolvency, is one which is -either,necessary to he made or supported by proof. The principal debtor may be a necessary parly to the bill, but is alone so, on the ground that he is interested in the subject matter of the suit, and perhaps also in the object of it, and his presence may be necessary to enable a chancellor to scale the claims of all the parties. Indeed, it might very frequently he a matter of great doubt, whether the principal debtor was able to respond for any portion of the sum paid; and the right of contribution would thus be made to depend, not on fixed principles of justice and equity, but on the prosecution of a suit which might or might not be available, according to circumstances.

The second position on which the case cited is made to rest, is common to this State; for wo have a similar statute to that of Kentucky, which authorises one co-surety, who has paid money on a judgment, to move against another, for his proportion of the debt, when the principal debtor has proved insolvent.

We cannot yield our assent to the proposition, that the enactment of this statute is equivalent to a repeal of the previous law in relation to co-sureties. The legislature might well refuse to give a summary remedy to one surety against another, when the principal debtor was solvent, and yet not intend to make the recovery, in other modes of proceeding, dependant on the fact of insolvency.

It does not admit of question, that the rule as laid down in the case of Cowel vs. Edwards, before cited, is the existing law of co-suretyship, and that the right to sue is consequent, on the legal payment of the money, for which the sureties are justly hound.

The judgment is affirmed.

       2 B. & P. 268.

       3 Littel, 384.


author: GOLBTHWAITE, J.

text:
    SMITH vs CHAPMAN & BROTHER.
    1 A garnishee cannot take advantage of an irregularity, in the proceedings, between parties toan attachment.
    2. If a garnishee answer in the court below, without’ objecting to a defect m the process against him, he cannot be permitted, on a writ of error, to allege that he was not served according to the forms prescribed by law.
    3. Where a garnishee, by his answer, does not admit, a debt to be due, and payable from himself, to the defendant in attachment, no judgment can be rendered.

      4. So, where a garnishee admitted, that he was indebted to the defendant m attachment, aceitain sum, to be ¡raid in "store accounts,” the court had no authority to change the liability of the garnishee, and make him liable as for a money demand :
    5. And it is no answer to this view of the subject, to allege, that unless a judgment can be rendered, the plaintiff in attachment, would be remediless; for tlie attaching cred tor, is, by the levy, entlt'ed toa priority of satisfaction, out of the demands, as a part of the estate of his debtor, and the proper mode would be, for the j laintiff in the attachment, to pre-ceed in equity, to have the demands assigned and collected, for the satisfaction of his judgment.
    Error to the Circuit court of Dallas county.
    Proceedings by attachment. In this case, a writ of attachment, from a justice' of the peace, issued against George Cater, in favor of Chapman & Brother, at the instance, and on the oath of Joseph Chapman, one of the firm of Chapman & Brother; and summons of garnishment was served on Joseph Smith, the plaintiff in error, in which summons, the plaintiff in the attachment.'was described as Joseph Chapman :
    And at the Fall term, eighteen hundred and thirty six, of the Circuit court of said county, William Chapman and Joseph Chapman, partners, using the name and style of William Chapman & Brother, declared against George Cater, attached by his rights and credits, to answer of a plea of trespass on the case, that defendant, on a day mentioned, was indebted to plaintiffs in the sum of two hundred dollars, for the price of goods, then and there bargained and sold by plaintiffs to defendant, at his request, &c. and then and there promised to pay the same on request; yet, disregarding his promise, had not paid the same, or any part thereof, Sic. ■ ■ ■

    And at the same term, said Joseph Smith, who was summoned as a garnishee, came into open court, and being sworn, stated, that at the date of the service of the attachment, he was indebted to the said Caler, in the sum of one hundred and nine dollars, to be paid in store accounts, due at the date of said service of the attachment; and affiant stated, that he owed said Cater no other money ; had no property or effects of his in affiant’s bands; and knew of no other person or persons, who were indebted to, or had property or effects of said Cater, in their hands: It was. therefore, considered by the court, that the said garnishee should hold in his hands, the said sum of one hundred and nine dollars, in store accounts, so acknowledged to be due as aforesaid, subject to the further order of the court.
    And at the Spring term, eighteen hundred and thirty seven, of the same court, the plaintiff came, and the defendant, being solemnly called, came not, but made default: It was, therefore, considered by the court, that the plaintiffs recover of the defendant their damages, &c. But inasmuch as those damages were unknown, it was required that a jury come, to inquire of, and assess the same : and a jury having been elected and sworn, well and truly to assess the damages, upon their oaths said, they assessed the same at one hundred and six dollars, and thirty two cents: It was, therefore, considered by the court, that the plaintiffs recover of defendant, the said sum of one hundred and six dollars and thirty two cents, assessed as aforesaid, and the costs in this behalf by said plaintiffs expended.
    And Joseph Smith, having answered as a garnishee in the cause, at the last term, that be urns indebted to said George Cater, in the sum of one hundred and nine dollars: It was, therefore, considered by the court, that the plaintiffs recover of the said Joseph Smith, the said sum of one hundred and nine dollars, so acknowledged to be due and owing as aforesaid.'
    From this judgment, there was a writ of error, and the plaintiff in error, here assigned—
    1st. That the court below, erred in giving judgment, against the garnishee, for the sum of one hundred and nine dollars, when he had answered, that he was indebted to George Cater, the defendant in the attachment, in the sum of one hundred and nine dollars, to be paid in store accounts.
    2d. The court erred in giving judgment against the garnishee, for the sum of one hundred and nine dollars, when the judgment against the defendant in the attachment, was for one hundred and six dollars and thirty two cents.
    3d. The court erred in giving judgment against the garnishee, for any amount of money.
    4th. The court erred in rendering a judgment against the garnishee, at all.

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

      Edwards, contra.

      Clarke, for the plaintiff in error, contended that the-court ought not to have rendered a judgment against the ganrishee at all; and to support this position, cited — 1 Aik. Dig. 38 to 42 : 2 Bibb 572 : 1 Stewart 34: and that if any judgment in such a case could be rendered, it ought to have been differently rendered and ascertained: and to this effect cited — 2 Aik. Dig. 42 and ’3, sec. 18,19, 22; 2 Stewart 86; 2 Porter 546«,
   GOLBTHWAITE, J.

A writ of attachment was sued out before a justice of the peace of Balias county, returnable to the Circuit court, at the suit of Chapman & Brother, against the estate of George Cater. This writ is directed to any lawful constable cf Balias county; and is returnable “executed” by one who.may be presumed to answer to the description of the oíscer named; from the addition, after his name, of the letters O. D. C. No instructions are endorsed on the writ, for the officer to execute it by the service of a garnishee process, on any person; but a summons of garnishment, to Smith, the plaintiff in error, signed by the same person, who makes return of the writ of attachment, follows it in the record, without any return endorsed thereon. This summons, describes the attachment with accuracy, except the description of the plaintiff, who in this, is stated to be Joseph Chapman, instead of Chapman & Brother. At the appearance term, Smith came into open court, and stated on oath, that at the date of the service of the attachment, he was indebted to the said Carter, in the siim of one hundred and nine dollars, to be paid in store accounts, due at the date of the service of the attachment; and that ho owed said Cater no other money, &c.' On this answer, it was considered by the court, that the said garnishee, held in his hands, the said sum of one hundred and nine dollars, in store accounts, so acknowledged to be due as aforesaid, subject to the further order of the said court. At the nest term, a-judgment by default, was rendered against Cater, the defendant in attachment, and the plaintiff’s damages were assessed, by a jury, at one hundred and sis 37-100 dollars, for which sum judgment was rendered against the said Cater, as well as for the costsof suit. At the same term, •judgment was rendered against Smith, the garnishee, for the sum of one hundred and nine dollars, on his'answer made at the previous term. To reverse this judgment, Smith now prosecutes his writ of error to this court, mid here insists that the judgment ' rendered against him is erroneous—

1st. Because of the irregularity of the proceedings against the defendant in attachment:

2d. Because no process of garnishment, was served on him:

3d. Because no debt is admitted to he due, by his answer, for which tlie court could render a judgment. ■

The first point on which the plaintiff in error relies, has received the repeated adjudication of this court. In Stebbins vs. Fitch, it was determined, that the garnishee cannot be permitted to take advantage of any irregularity in the proceedings between the parties to the attachment. The same rule was reiterated, in Thompson vs. Allen.

The second position, is also untenable. The garnishee answers without objecting to any defect in the process against him, and cannot now be permitted to allege that he was not served according to the forms prescribed by law. The case of Lawrence, Rapelye & Co. vs. Ware, was on a writ of error, prosecuted by the defendant in attachment, and the court there decided, that inasmuch, as there was no service by a levy on property, or any legal garnishment, the proceedings could not be supported..

The only remaining point to be noticed, is the one of the most importance; and it presents a question of some difficulty, which lias heretofore been collaterally before this court; but on which no opinion has hitherto been rendered necessary. In the the case of Allen vs. Morgan, the garnishee' answered, that he was indebted to the defendant in attachment, by note, but had offsets, and could not know until a settlement was liad, how the balance was. It was decided that a judgment could not be rendered against him, on this answer. So in the caso of Presnell vs Mabry, the garnishee admitted that he was the administrator of an estate, of which the defendant in attachment, was a distributee; and that he had funds of tlic estate in his hands, but that he was informed, that the defendant in attachment, had assigned his interest in the estate to another: it was held that no judgement could he rendered. In each of these cases, it is probable that the attaching creditor might, under the attachment ,laws, have acquired by his attachment, some rights of priority, hut because no debt was admitted by the answer, to be due and payable, a judgment couldnot be rendered.

In the present case, the garnishee does not admit, that he owes the defendant in attachment, any sum of money whatever; hut that he is indebted to him in a certain sum, to he paid in store accounts, then due.' The Circuit court, had no authority under the law,fto change the liability of the garnishee, and make him liable as for a money demand; and it is no answer to this objection, to allege, that unless lie can sustain this judgment, the plaintiff in attachment will be remediless; for although it may not be a case, which is within the attachment laws, it does not follow that there is no remedy.

This is certainly not the case of indebtedness to the defendant in the attachment, for specific property; nor is it a possession by the garnishee of property, goods, or effects, which can be delivered to the officer, serving the attachment, within the terms of the nineteenth and twenty-second sections of the attachment laws. The officer would have no authority to sell, nor the court, as a court of law, to order the sale of the accounts, if the garnishee ivas authorised to deliver them.

The case is one which is not met by any statutory enactment, so far as relates to the disposition of -the demands, although it is clear that the attaching creditor is, by the levy, entitled to a priority of satisfaction, out of those demands as a part of the estate of his debtor; but the Circuit court, as a court of law, cannot make any order, which can meet the exigency of the case; and the only proper mode would be, for the plaintiff in the attachment, to proceed in equity, to have the demands assigned, and collected for the satisfaction of his judgment.

The judgment rendered by the Circuit court, must be reversed; and if desired, the cause will he remanded, in order that other proceedings may be had, not inconsistent with this opinion.

      1 Stewart, 180.

      4 Stewart & Porter 184.

      1 Stewart 33.

       1 tew.9.

      3 Porter 165.